HomeMy WebLinkAboutFS 2012-08-21 COMPLETE AGENDA PACKETCity of Tukwila
Distribution:
D. Quinn
Finance and Safety
D. Robertson
K. Kruller
Committee
V. Seal
Mayor Haggerton
D. Cline
O De'Sean Quinn, Chair
P. McCarthy
O Dennis Robertson
C. o'Raherty
S. Kerslake
O Kate Kruller
K. Matej
M. Villa
S. Brown
AGENDA
TUESDAY, AUGUST 21, 2012
CONFERENCE ROOM #3, 5:15 PM
Item Recommended Action Page
1. PRESENTATION(S)
2. BUSINESS AGENDA
a. An ordinance amending Title 5, "Business Licenses
and Regulations."
Peggy McCarthy, Finance Director
b. Lease agreements for copiers.
Peggy McCarthy, Finance Director
c. An agreement with Foster Pepper for LID #33.
Peggy McCarthy, Finance Director
d. Quarterly Police update.
Mike Vi/ /a, Po /ice Chief
e. Update on evaluation of positions from 2012 market
study for non represented employees.
Stephanie Brown, Human Resources Director
3. ANNOUNCEMENTS
4. MISCELLANEOUS
a. Forward to 8/27 C.O.W. Pg.1
and 9/4 Regular Mtg.
b. Forward to 9/4 Consent Pg.19
Agenda.
c. Forward to 9/4 Consent Pg.35
Agenda.
d. Information only. Pg.49
e. Information only. Pg.85
Next Scheduled Meeting: Wednesdav, September 5, 2012
S The City of Tukwila strives to accommodate individuals with disabilities.
Please contact the City Clerk's Office at 206 433 -1800 or TukwilaCityClerk @TukwilaWA.gov) for assistance.
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City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO:
Mayor Haggerton
Finance and Safety Committee
FROM:
Peggy McCarthy, Finance Director
BY:
Cindy Wilkins, Fiscal Specialist
DATE:
August 21, 2012
SUBJECT:
Amendments to TMC Title 5: Business Licenses and Regulations
ISSUE
Council is being asked to consider several amendments to Tukwila Municipal Code (TMC) Title 5:
Business Licenses and Regulations in order to increase efficiency and provide clarity in the Code.
BACKGROUND
In 2010, the Finance Department assumed responsibility for business licensing. In October 2011,
several changes were made to Title 5, as a result of this change. Since that time, the Finance
Department has identified areas of the Code in need of clarification and /or further explanation, in
order to assist in efficient processing of business license applications and renewals. These changes
will also help eliminate confusion for business license applicants. These recommended changes are
outlined below.
DISCUSSION
1. Update to the definitions of "Business" and "Business License Required"
The definitions of "Business" (TMC 5.04.010) and "Business License Required" (TMC 5.04.015)
need to be refined, in order to address questions in applicability.
Currently, the TMC states that if you are engaging in business in Tukwila, you are required to have
a business license. This wording is vague and has resulted in some challenges relating to who
should and who should not be required to have a business license in Tukwila. Specifically, some
of the challenges involve outside vendors and whether or not conducting business in Tukwila
when the vendor is located outside the City requires a business license. Staff believes that the
intent of the Code is to require a business license from any activity, occupation, pursuit or
profession located in or engaged within the City regardless if the physical location is within City
boundaries. Changing the definitions of "business" and "business license required" would add
clarity and enforceability to the Code.
The proposed draft definition of "business" was derived from a combination of definitions from
codes in the following cities including Kent, Redmond, and Kirkland. The proposed draft definition
of "business license" was derived from a combination of definitions from code language used in
Lynnwood and Redmond.
2. Temporary Business Licenses
In regards to temporary business licenses, the TMC reads that a business that employs fewer
than 10 employees is exempt from payment of a license fee (TMC 5.04.020(C)(7)). The primary
purpose of this section was intended to ensure events like sidewalk sales, carnivals and /or tent
INFORMATIONAL MEMO
Page 2
sales of established businesses were in compliance with City regulations for safety issues with
tents, ample parking, adequate restroom facilities and other requirements. The Code has also
been applied to vendors at City sponsored events such as Tukwila Days, 4 of July, or other
events at the Tukwila Community Center (TCC). Most vendors at these events have volunteers or
employ fewer than 10 employees so they are exempt from the business license fee.
For City sponsored events or events held at TCC, participating vendors complete a
Vendor /Exhibitor Opportunities form and pay the applicable fee at the Community Center in
addition to completing a Temporary Event application. The Temporary Event application is
redundant and takes time for staff to process a temporary license with no associated fee. The City
Council has expressed an interest in and a desire for these types of vendors to participate and
support our community in such events, and these processes will create a made more user
environment.
To recover the cost of processing a business license, staff recommends charging all other entities
applying for a Temporary Event License that are for a non -City sponsored event, the minimum $67
business license fee per application. This requires changing the definition of minimum fee (TMC
5.04.020 (7).
A summary of temporary business licenses issued in 2011 is attached for Committee review
(Attachment #3). The draft ordinance exempts City -run special events as discussed above, and
requires a temporary business license fee for all other vendors.
3. Fee for Late Acquisition or Renewal (TMC 5.04.050(A)
Currently, the Code processes late fees for delinquent business license renewals and late
acquisitions in the same manner. The current language works for late acquisition, but is not
efficient for business license renewal penalties. Late fees on business license renewals needs to
be identified separately.
Based on research conducted by staff on processing late fees in surrounding cities, there may be
a more efficient way to encourage timely payment of business license fees and compliance with
the Code. In comparison to other cities, Tukwila provides a generous policy regarding penalty fees
for late business license renewals. Staff believes that increasing the penalty fee will reduce staff
processing costs, time, and increase the likelihood of timely payments and complete the renewal
process in a shorter amount of time. Staff recommends implementing the changes outlined in
Attachment #3, and changing the Code accordingly.
4. Various Housekeepinq Chanqes
Several housekeeping changes are recommended to add consistency and clarity to the Code.
These housekeeping items are discussed below:
The following sections of the Code need the word "City" added before "Clerk Any appeals the
City receives needs to be received by the City Clerk. Appeals (TMC 5.10.100) and Appeals
(TMC 5.56.100).
The appeal fee of $250 in Appeal of Notice of Denial, Suspension or Revocation (TMC
5.04.112) was inadvertently removed when the Code was initially changed in 2011, and needs
to be added back to the ordinance.
A few sections of the Code never included appeal language and were subsequently
challenged. It was thought that the appeal fee language in TMC 5.04.0112 (B) would apply to
all of Title 5; however since the language is Chapter specific, it does not apply to the other
Chapters in question. The language should be added to these sections, so the City can collect
appeal fees to help off -set the hearing examiner fees. The following sections are being
recommended for change: Appeals and Hearings Cabarets (TMC 5.08.080) and Adult
Cabarets TMC 5.10.100(A); and Appeals (A) Adult Entertainment Cabaret (TMC 5.56.100).
2
INFORMATIONAL MEMO
Page 3
Add the term UBI (Unified Business Identifier) to factors that signify a Change in Nature of
Business (TMC 5.04.070) to clarify when a new business license application needs to be
submitted and applicable fees need to be collected. Currently the code only states that a
change in the nature of business or a change in ownership requires payment of the applicable
license fee. A change in the UBI number requires the fee to be paid as well.
RECOMMENDATION
The City Council is being asked to consider the ordinance amending Title 5 Business Licenses and
Regulations at the August 27, 2012 Committee of the Whole meeting and subsequent September 4,
2012 Regular Meeting.
ATTACHMENTS
Draft Ordinance
Business License Penalties /2012 Notices Issued
2011 Temporary Event Licenses Issued
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, AMENDING VARIOUS ORDINANCES
AS CODIFIED IN TUKWILA MUNICIPAL CODE TITLE 5,
"BUSINESS LICENSES AND REGULATIONS," TO CLARIFY THE
DEFINITION OF "BUSINESS AMEND LANGUAGE RELATING
TO A TEMPORARY BUSINESS LICENSE, UPDATE LANGUAGE
DEFINING LATE ACQUISITION OF LICENSE AND PENALTY
FEES, AND REINSTATING THE FORMER APPEAL FEE OF
$250.00; PROVIDING FOR SEVERABILITY; AND ESTABLISHING
AN EFFECTIVE DATE.
WHEREAS, Title 5 of the Tukwila Municipal Code (TMC), "Business Licenses and
Regulations," was last updated November 2011 by Ordinance No. 2356; and
WHEREAS, a revision to the definition of "business" will help clarify when a City
business license is required; and
WHEREAS, the City Council desires to standardize regulations relating to a
temporary business license; and
WHEREAS, the City Council supports assessment of penalty fees for a business
operating without first obtaining a business license, and for businesses that fail to renew
their business license in the required timeframe; and
WHEREAS, revisions to the appeal procedures and appeal fees are needed for
consistency in filing of appeals relating to all sections of Title 5 and to help defray the
cost of Hearing Examiner fees;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. TMC Section 5.04.010, "Definitions," Amended. Ordinance Nos.
2356 §1, 2333 §1 and 2315 §1 (part), as codified at TMC Section 5.04.010,
"Definitions," under subparagraph 1 entitled, "Business," are hereby amended to read
as follows:
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1. "Business," means and includes all activities, occur)ations, trades, pursuits, or
professions located or enqaqed within the Citv that involves the manufacturing or
processing of materials of any type, the sale of goods, wares or merchandise, the
rendition of services or the repair of goods, wares or merchandise to the general pub li GG
or a peFt thereof for any consideration to the person enqaqinq in the same or to anv
other person or class, directly or indirectly, whether or not an office or phvsical location
for the business lies at each established plaGe of busiR s tore, e„T^°, ^r yard within
the City limits.
Section 2. TMC Section 5.04.015, "Business License Required," Amended.
Ordinance Nos. 2333 §2 and 2315 §1 (part), as codified at TMC Section 5.04.015,
"Business License Required," are hereby amended to read as follows:
No person or persons shall conduct, maintain, operate, or engage in any business
within the City without first applying for and obtaining a business license and paying the
fee(s) as prescribed herein unless the business is exempt. The exemption is only from
the need to pay a fee for issuance of the business license and shall not be construed as
relief from compliance with other requirements of the Tukwila Municipal Code. All
businesses operating or engaginq in business within the City are required to submit a
business license application or renewal, as appropriate, regardless of whether a
business license fee is due to the City.
Section 3. TMC Section 5.04.020, "Application and Fees Required," Amended.
Ordinance Nos. 2356 §2, 2333 §3 and 2315 §1 (part), as codified at TMC Section
5.04.020, "Application and Fees Required," under subparagraph C entitled "Minimum
Fee," are hereby amended to read as follows:
C. Minimum Fee. There shall be a minimum fee for an annual license of $67.00,
consisting of a $12.00 business license fee and a $55.00 RGRL fee, except if the
c,
"Yesc qualifies for a temperary bu&i=R&Gc aGGE) leiith TRA C Q^}
5.04.010 eF is for an entity defined in TMC Section 5.04.090.
1. A business with less than $12,000.00 of annual gross receipts shall pay the
minimum license fee. A residential rental property with less than $12,000.00 of annual
gross receipts shall be exempt from the RGRL fee, but shall be subject to the license
fee requirements set forth in TMC Section 5.06.040.
2. An entity engaging in some activities or functions that are exempt from the
combined business license fee and some that are not exempt shall pay a license fee
based on the number of full -time equivalent employees involved in the functions or
activities that are not exempt.
3. An individual person operating more than one business as sole
proprietorship or owning more than one residential rental property within the corporate
limits of the City shall pay only one RGRL fee, at an amount equal to the highest RGRL
fee for any one of the multiple businesses, if not otherwise exempt from paying the
license fee pursuant to this chapter. TMC Section 5.04.020.C.3 shall not apply if any
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one of the businesses or properties owned by the sole proprietor has three or more full
time equivalent employees.
4. If a business has more than one location in Tukwila, the license fee
calculation shall include at least the minimum fee for each location.
5. The license fee for a business required to be licensed under this chapter
and not located within the City's corporate limits shall be calculated by multiplying the
license fee by the number of FTE employees working within the City, but in no event
shall the license fee be less than the minimum license fee set forth in this chapter. If the
number of FTE employees is not known at the time of renewal, the business shall
estimate the maximum number of FTE employees they anticipate working in Tukwila for
the 12 -month period subject to licensure.
6. Businesses doing business in the City that have no employees physically
working within the City shall pay the minimum fee required under this chapter.
7. Businesses or organizations employing fewer than 10 emnleye cqd that
a-re eligible for a temporary business license pursuant to TMC Section 5.04.010 shall be
,exempt from p a I♦ will be required to pav the minimum $67.00
business license fee unless the applicant is oarticioatinq at a Citv- sponsored event or as
part of an event held at the Tukwila Communitv Center. If an applicant is participatinq
at a Citv- sponsored event or as part of an event held at the Tukwila Communitv Center,
they will be required to complete all application requirements and approvals required by
the City's Parks and Recreation Department.
Section 4. TMC Section 5.04.050, "Fee for Late Acquisition or Renewal,"
Amended. Ordinance Nos. 2356 §4, 2333 §5 and 2315 §1 (part), as codified at TMC
Section 5.04.050, "Fee for Late Acquisition or Renewal," are hereby amended to read
as follows:
5.04.050 Fee for Late Acquisition or Renewal
A. Monetary Penalty. Failure to pay the license fee by the first day of
commencing business operations withiR 30 days after the day en whiGh -4s due and
payable pursuant to TMC Section 5.04.020 will result in a late acquisition penalty equal
to shall render the busin s c y bj eG t to a penalty e 5% of the afE of license fee for
the first month of delinquency and an additional penalty of 5% for each succeeding
month of delinquency, b-ut not to exceeding a total penalty of 25% of the amouRt of
license fee_,
Failure to pay the annual business license renewal fee by January 31st shall constitute
delinquency and shall result in a penalty equal to 15% of the business license fee for
applications and payment receipted or postmarked February 1 through February 28. If
application and payment is receipted or postmarked March 1 through March 31st, a
penalty of 30% of the business license fee will be added. If application and payment is
receipted or postmarked April 1 or later, a penalty of 45% of the business license fee
will be added. No business license for the current period shall be granted until all the
delinquent fees, together with penalties, have been paid in full. The Finance Director or
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his /her designee is authorized, but not obligated, to waive all or any portion of the
penalties and interest provided herein in the event the Director or his /her designee
determines that the late payment was the result of excusable neglect or extreme
hardship.
B. Collection of Fees and Penalties. Any license fee due and unpaid under this
chapter, and all penalties thereon, shall constitute a debt to the City and may be
collected in court proceedings in the same manner as any other debt in like amount,
which remedy shall be in addition to any and all other existing remedies.
C. Revocation of License. The Finance Director may revoke any business
license issued pursuant to this chapter to any business or other person who is in default
in any payment of any license fee hereunder, or who shall fail to comply with any of the
provisions of this chapter. Notice of such revocation shall be mailed to the license
holder by the Finance Director, and on and after the date thereof any such business that
continues to engage in business shall be deemed to be operating without a license and
shall be subject to any and all penalties herein provided.
D. There shall be a penalty of not less than $50.00 to reinstate any business
license revoked through nonpayment of the business license fee.
Section 5. TMC Section 5.04.070, "Change in Nature of Business," Amended.
Ordinance Nos. 2356 §5, 2333 §6 and 2315 §1 (part), as codified at TMC Section
5.04.070, "Change in Nature of Business," are hereby amended to read as follows:
The license granted in pursuance hereof shall be used to conduct the business or type
of business at the designated address for which such license is issued. Any change in
the nature of the business, a change in the Unified Business Identifier (UBI) issued by
the Washington State Department of Licensing, a change in the physical location of the
business, or a change in ownership of the business shall necessitate a renewed
application to the Finance Department. A change in the nature of business, change in
the Unified Business Identifer or a change in ownership will also require payment of the
applicable license fee.
Section 6. TMC Section 5.04.112, "Appeal of Notice of Denial, Suspension or
Revocation," Amended. Ordinance Nos. 2333 §9 and 2315 §1 (part), as codified at
TMC Section 5.04.112, "Appeal of Notice of Denial, Suspension or Revocation," are
hereby amended to read as follows:
A. Whenever the Finance Director, or his /her designee, determines there is cause
for suspending, denying or revoking any license issued or applied for pursuant to this
chapter, the Finance Director, or his /her designee, shall notify the person holding the
license, by registered mail or hand delivery, of his /her determination. Notice mailed to
the address on the license shall be deemed received three business days after mailing.
The notice shall specify the grounds for suspension, denial or revocation.
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B. The licensee or applicant may appeal the decision of the Finance Director, or
his /her designee, to suspend, deny or revoke a business license by filing a written
appeal to the City Clerk within 10 calendar days of the decision. The appeal must state
the grounds for appeal and the basis for why the decision was incorrect. To be
accepted the appeal must be accompanied by an appeal fee of $200.00 $250.00.
C. Upon receipt of the notice of appeal, the Finance Director shall set a date for
hearing the appeal before the City's Hearing Examiner. Notice of the hearing will be
mailed to the licensee or applicant.
D. The hearing shall be de novo. The Hearing Examiner may affirm, reverse or
modify the Finance Director's, or his /her designee's, decision.
E. The decision of the Hearing Examiner shall be final. Any appeal from the
administrative hearing shall be to King County Superior Court within 14 calendar days of
the Hearing Examiner's decision.
Section 7. TMC Section 5.08.080, "Appeals and Hearing," Amended.
Ordinance Nos. 2355 §6, 1796 §3 (part) and 1586 §2 (part), as codified at TMC Section
5.08.080, "Appeals and Hearing," are hereby amended to read as follows.
A. Any person aggrieved by the action of the Finance Director in refusing to issue
or renew any license under this chapter or in suspending or revoking any license under
this chapter shall have the right to appeal such action to the City Hearing Examiner, or
to such other hearing body as may hereafter be established by the City Council for the
hearing of such appeals, by filing a notice of appeal with the City Clerk within 10 days of
receiving notice of the action from which appeal is taken. The appeal must state the
grounds for appeal and the basis for why the decision was incorrect and include an
appeal fee of $250.00.
B. The hearing body, upon receipt of a timely notice of appeal, shall set a date for
a hearing of such appeal within 20 days from the date of such receipt, except as
specified in TMC Section 5.08.080.C. The hearing shall be de novo. The hearing body
shall hear testimony, take evidence and may hear oral argument and receive written
briefs. The filing of such appeal shall stay the action of the Finance Director, pending
the decision of the hearing body.
C. The decision of the hearing body on an appeal from a decision of the Finance
Director shall be based upon a preponderance of the evidence. The burden of proof
shall be on the appellant.
D. The decision of the hearing body shall be final unless appealed to the Superior
Court within 20 days of the date the decision is entered.
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Section 8. TMC Section 5.10.100, "Appeals," Amended. Ordinance No. 1778
§2 (part), as codified at TMC Section 5.10.100, "Appeals," is hereby amended to read
as follows:
A. Upon notice of non issuance, revocation ,or suspension of any license under
this chapter, or imposition of any penalty under TMC Section 5.10.110, the applicant or
license holder may appeal by filing a notice of appeal, specifying the particular
reason(s) upon which the appeal is based, with the City Clerk within 10 days of a-ad
nag—the date of the notice of non issuance, revocation or suspension. To be
accepted, the appeal must be accompanied by an appeal fee of $250.00. A timely
notice of appeal shall stay the effect of the notice of non issuance, revocation,
suspension or imposition of any penalty under TMC Section 5.10.110. An untimely
notice of appeal shall be rejected as such by the City Clerk, and no appeal hearing shall
be scheduled. A warning notice to a manager, under TMC Section 5.10.110.A.1, shall
not constitute the imposition of a penalty.
B. Upon timely filing of a notice of appeal, the GleFk Finance Director shall
schedule a hearing on the appeal before a Hearing Examiner. The hearing shall be
conducted no later than 45 days from the date of the notice of appeal, unless an
extension is agreed to by the appellant or otherwise ordered by the Examiner for good
cause shown. The Hearing Examiner shall have the authority to issue subpoenas for
persons and documents relevant to the appeal upon request of a party.
C. Within 20 days, excluding holidays recognized by the City of Tukwila, from the
date of the hearing on an appeal under this section, the Hearing Examiner shall issue a
written decision which shall set forth the reasons therefor.
D. A decision of the Hearing Examiner, or a decision of the City Clerk to reject an
appeal as untimely, shall be final, unless an application for a writ of review is filed with
the King County Superior Court and properly served upon the City of Tukwila within 14
calendar days of and including the date of the Hearing Examiner's decision.
Section 9. TMC Section 5.56.100, "Appeals," Amended. Ordinance Nos. 1747
§1 (part) and 1490 §2 (part), as codified at TMC Section 5.56.100, "Appeals," are
hereby amended to read as follows:
A. Upon notice of non issuance, revocation or suspension of any license under
this chapter, or imposition of any penalty under TMC Section 5.56.120, the applicant or
license holder may appeal by filing a notice of appeal, specifying the particular
reason(s) upon which the appeal is based, with the City Clerk within 10 days of and
+nG'UdiRq the date of the notice of non issuance, revocation or suspension. To be
accepted, the appeal must be accompanied by an appeal fee of $250.00. A timely
notice of appeal shall stay the effect of the notice of non issuance, revocation,
suspension or imposition of any penalty under TMC Section 5.56.120. An untimely
notice of appeal shall be rejected as such by the City Clerk, and no appeal hearing shall
be scheduled. A warning notice to a manager, under TMC Section 5.56.110.A.1, shall
not constitute the imposition of a penalty.
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B. Upon timely filing of a notice of appeal, the Clerk Finance Director shall
schedule a hearing on the appeal before a Hearing Examiner. The hearing shall be
conducted no later than 45 days from the date of the notice of appeal, unless an
extension is agreed to by the appellant. The Hearing Examiner shall have the authority
to issue subpoenas for persons and documents relevant to the appeal, upon request of
a party.
C. Within 20 days, excluding holidays recognized by the City of Tukwila, from the
date of the hearing on an appeal under this section, the Hearing Examiner shall issue a
written decision, which shall set forth the reasons therefor.
D. A decision of the Hearing Examiner, or a decision of the Citv Clerk to reject an
appeal as untimely, shall be final, unless an application for a writ of review is filed with
the King County Superior Court and properly served upon the City of Tukwila within 14
calendar days of and including the date of the Hearing Examiner's decision.
Section 10. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to
other local, state or federal laws, codes, rules, or regulations; or ordinance numbering
and section /subsection numbering.
Section 11. Severability. If any section, subsection, paragraph, sentence, clause
or phrase of this ordinance or its application to any person or situation should be held to
be invalid or unconstitutional for any reason by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 12. 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 2012.
ATTEST /AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk Jim Haggerton, Mayor
APPROVED AS TO FORM BY: Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Shelley M. Kerslake, City Attorney Ordinance Number:
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Business License Renewal Penalties
(Penalty amount based on the License Fee due)
Tukwila (CURRENT)
If paid, Jan 1 Jan 31 No Penalty Fee Due
Feb 1 Feb 28 Add'I 5% Penalty Due
Mar 1- Mar 31 Add'I 10% Penalty Due
Apr 1 Apr 30 Add] 15% Penalty Due
May 1 May 31 Add'I 20% Penalty Due
Jun 1- Jun 30 Add'I 25% Penalty Due
July 1st To Code Enforcement
Redmond
if paid, Jan 1 Feb 14th No Penalty Fee Due
Feb 15 Mar 14th Add'I 50% Penalty Due
Mar 15 After Add'I 100% Penalty Due
Kirkland
If paid, Up to 29 days late Add'I $25 or 10% Penalty fee, whichever is greater
30 -59 days late Add'I $50 or 50% Penalty fee, whichever is greater
60 or more days Add'I $100 or 100% Penalty fee, whichever is greater
Burien
If paid, 30 or more days delinquent shall be subject to a penalty equal to the license fee.
Renton
If paid, Jan 1 Jan 31 No Penalty Fee Due
Feb 1 Feb 28 Add'I 5% Penalty Due
Mar 1- Mar 31 Add'I 10% Penalty Due, plus revocation fee of $50 and reinstating fee of $20
Apr 1- Apr 30 Add'I 15% Penalty Due, plus revocation fee of $50 and reinstating fee of $20
May 1- May 31 Add'I 20% Penalty Due, plus revocation fee of $50 and reinstating fee of $20
Jun 1 Jun 30 Add'I 25% Penalty Due, plus revocation fee of $50 and reinstating fee of $20
(per Linda Weldon, they usually don't have many accounts holding out till the end due to revoking their license)
Lynnwood
If paid, Feb 15th or After New application must be submitted with an add'I penalty fee of 150%
Seatac
If paid, 1 -15 days past due a penalty of 5% is due or $5 whichever is greater
16 -30 days past due a penalty of 10% or $10 whichever is greater
31 -45 days past due a penalty of 15% or $15 whichever is greater
46 -60 days past due a penalty of 20% or $20 whichever is greater
over 61 days a penalty of 100% is due
Kent'
If paid, after 90 days past due date is subject to a $50 reinstatement fee in addition to the license fee.
Staff Recommendation (PROPOSED)
Jan 1 Jan 31 No Penalty Fee Due
Feb 1 Feb 28 Add'I 15% Penalty Due
Mar 1 Mar 31 Add'I 30% Penalty Due
Apr 1- Apr 30 Add') 45% Penalty Due
May 1st Accounts referred to Code Enforcement
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2012 Renewal Notices /Late Notices Issued
Renewal notices are sent out early December.
of Notices Sent
2546
Current Penalty Fees
479
Over 30 day late notices were issued on 2/2
License
Fee
5%
10%
15%
20%
25%
23
Based
on FTE
(After 1/31)
(After 2/28)
(After 3/31)
(After 4/30)
(After 5/31)
1 FTE
67.00 1
3.351
6.701
10.051
13.401
16.75
5 FTE
335.00
16.75
33.501
50.251
67.001
83.75
10 FTE
670.00 1
33.50
67.001
100.501
134.001
167.50
20 FTE
1,340.00 1
67.001
134.001
201.001
268.001
335.00
50 FTE
3,350.00
167.501
335.00
502.501
670.001
837.50
100 FTE
6,700.00 1
335.001
670.00
1,005.001
1,340.001
1,675.00
Proposed Penalty Fees
License
Fee
15%
30%
45% To Code Enforcement
Based
on FTE
(After 1/31)
(After 2/28)
(After 3/31)
May 1
1 FTE
67.00 1
10.051
20.101
30.151
5 FTE
335.00 1
50.25
100.501
150.751
10 FTE
670.00
100.50
201.00
301.501
20 FTE
1,340.00 1
201.001
402.00
603.001
50 FTE
3,350.00 1
502.501
1,005.001
1,507.501
100 FTE
6,700.00 1
1,005.001
2,010.001
3,015.001
2012 Renewal Notices /Late Notices Issued
Renewal notices are sent out early December.
of Notices Sent
2546
Renewal Notices were issued on 12/6/11
479
Over 30 day late notices were issued on 2/2
(5% penalty)
260
Over 60 day Late Notices were issued on 3/1
(10% penalty)
89
Over 90 day Late Notices were issued on 4/3
(15% penalty)
23
Over 120 day Late Notices were issued on 5/1
(20% penalty)
11
Over 150 day Late Notice were issued on 6/1
(25% penalty)
(Business Licenses are valid Jan 1 Dec 31)
15
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17
IN
City of T ukwila
Jim Haggerton, Mayo
INFORMATIONAL MEMORANDUM
TO: Mayor Aaggerton
Finance Safety Committee
ISSUE
Approve the lease Of19 copiers from Xerox Corporation. Authorize the Major tDSignth8(H8S8
agreement presented with this memorandum for 6 copiers and future lease agreements for the
n8nl8iMiOg 13 copiers.
BACKGROUND
|n2O11. the City printed approximately 1.SO1.70O pages on@ fleet Of23 copiers. The current
copier fleet consists 0f12 ]eased and 11 owned copiers. Our fleet 0f copiers iS aging (average
of 6+ years) and requires repair on afreqUent basis, [8SU|iing in machine downtime. Copier
costs for 2O11 are @8follows:
Activity Cost
|L8@Se 8 34.277
'Toner and supplies 22,357
Outside Print 26,384
D3
k����-
U /o��|
DISCUSSION
Replacing the aging fleet of copiers will allow the City to take advantage of new technologies
and lower printing costs per page. Some of the new technologies include color scanning,
integrated internet fax board and lower energy costs. The copier fleet is primarily managed by
Pacific Office Automation, which provides toner and repair services at a per page cost of .95
cents black and white and 10.8 cents color. The Xerox copiers will reduce our toner and repair
per page cost to.58 cents black and white and 5.7 cents color. The annual lease costs below
are based On8 bulk discount from Xerox through the State contract based OD2O11 print
volumes.
Activity Cost
Lease 45.331
|Toner and supplies 20
Outside Print 7.915
Total 73 J51
V
FINANCIAL IMPACT
Over a five-year period the sav to the City is estimated at S0.667. By leasing for y88rG,
which appears to be the approximate life of a City copier rather than purchasing, it will enable
the City tOtake advantage Qf new technologies every five years. Continuing our partnership with
Xerox for copiers in addition to Managed Print Sen/iC8S 3UOwG the City to have full visibility of
printing patterns and equipment needs through Xerox Print Services reporting.
INFORMATIONAL MEMO
Page 2
RECOMMENDATION
The Council is being asked to approve the leasing of 19 copiers over the next two years in an
amount of 210,000 (approximate) and authorize the Mayor to sign the contract attached to this
memorandum and future contracts with Xerox as equipment is replaced. It is requested that this
item be forwarded to the September 4, 2012 consent agenda.
ATTACHMENTS
Xerox Lease Agreement (6 copiers $63,070.20 for 60 months)
Copier Summary
Contract 12 -064 Xerox Services and Solutions Agreement #7123107
20 ZAClerk's n Finance\Craigllnfo Memo Copier Replacement.doa
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26
Council Approval 6/4/
xe rox
SERVICES AND SOLUTIONS AGREEMENT
THIS SERVICES AND SOLUTIONS AGREEMENT Number 7123107 "SSA is between City of Tukwila "Customer") and
Xerox Corporation "Xerox").
1. SCOPE AND STRUCTURE. This SSA sets forth the terms and conditions under which Customer may establish one or
more Services Contracts for the acquisition in the U.S. of Services, Maintenance Services and Deliverables from Xerox.
Each Services Contract under this SSA constitutes a separate contract and will be assigned its own Services Contract
Number consisting of the above SSA number followed by a three -digit extension. Each Services Contract will be
established when Customer submits and Xerox accepts the first SSO with a new Services Contract Number. Customer
may add Services, Maintenance Services, or Deliverables to an existing Services Contract by issuing additional Orders
referencing the applicable Services Contract Number. Each Services Contract will consist of the applicable terms and
conditions of this SSA, the first SSO and each additional SSO or SOW with the same Services Contract Number. Xerox
may provide Services and /or Products through its U.S. affiliates. Capitalized terms are defined in Section 25 unless
defined where first used.
2. ORDERS.
a. Orders may consist of SSOs, SOWs, and /or POs. Each Order must reference an applicable Services Contract
Number. Unless otherwise provided in an SSO, terms and conditions of such SSO are applicable to all Orders
constituting the applicable Services Contract. Customer POs are for order entry purposes only and will be subject
solely to the terms and conditions of the applicable Services Contract, notwithstanding anything contained in any
such PO at variance with or in addition to the applicable Services Contract.
b. Xerox may accept an Order either by its signature or by commencing performance. Xerox reserves the right to
review and approve Customer's credit prior to acceptance of each Order. Customer authorizes Xerox (or its agent)
to obtain credit reports from commercial credit reporting agencies.
c. Orders may be submitted by hard copy or, in the case of SSOs or POs, by electronic means, and those submitted
electronically will be considered (i) a "writing" or "in writing'; (ii) "signed (iii) an "original" when printed from
electronic records established and maintained in the ordinary course of business; and (iv) a valid and enforceable
Order.
3. TERM.
a. This SSA is effective when signed by both parties and, unless terminated by either party upon 90 days written
notice, continues for 60 months. If this SSA expires or is terminated, each Services Contract will (i) remain in effect
until the expiration or termination of all Orders constituting such Services Contract, and (ii) be governed by the
terms and conditions of this SSA as if it were still in effect.
b. The term of each Order will be set forth in such Order. If an Order is terminated, the term of remaining Orders will
continue unaltered. The term for each unit of Equipment will be the same number of months as its Order and will
commence on the installation date of said unit.
c. Except as otherwise provided in an SOW or unless either party provides notice of termination at least 30 days
before the end of its term, an Order will automatically renew on a month -to -month basis.
4. PERSONNEL. Xerox personnel engaged hereunder will comply with Customer's internal security and safety policies
that (a) are provided to Xerox in writing, (b) are reasonable and customary, and (c) do not conflict with the applicable
Services Contract. Customer will provide Xerox with reasonable prior written notice of such policies and any changes
thereto. During the term of this SSA and for a period of 1 year thereafter, neither party will, directly or indirectly, actively
solicit the employment of the other party's personnel (including their supervisors) and agents engaged under a Services
Contract. Employment arising from inquiries received via advertisements in newspapers, job fairs, unsolicited resumes,
or applications for employment will not be considered active solicitation. The sole remedy for breach of this restriction is
to receive payment, as liquidated damages and not as a penalty, from the breaching party equal to the individual's then
current annual salary (or the fees paid to an agent in the previous 12 months), within 30 days of the start date of the
individual. Xerox is an independent contractor hereunder.
5. ELIGIBLE AFFILIATES. Customer's Eligible Affiliates may acquire Services, Maintenance Services, and Deliverables
under this SSA. If an Eligible Affiliate establishes a Services Contract, it will be the "Customer" for the purposes of such
Services Contract. If Customer divests an Eligible Affiliate, such divested entity is no longer eligible to establish any
new Services Contracts or to submit any additional Orders under an existing Services Contract.
6. PRICING, PAYMENT, AND TAXES.
a. PRICING. Pricing will be as shown in an Order. Services requested and performed outside Customer's standard
working hours will be at Xerox's then current overtime rate.
b. PAYMENT. Invoices are payable upon receipt and payment must be received within 30 days after the invoice date.
For any payment not received within 10 days of its due date, Customer will pay a late interest charge as allowed
under the State of Washington prompt pay act, RCW 39.76.011. Restrictive covenants will not reduce Customer's
obligations. If an Offering begins partially and /or early, Xerox will bill Customer on a pro rata basis, based on a 30-
day billing month.
I S o p 6y
Form 52639 (July 2011)
JDB (05/2012) WA- 6B- 7- 11C -12D -1424 A -26
Page 1 of 8
27
c. TAXES. Customer will be responsible for all Taxes. Taxes will be included in Xerox's invoice unless Customer
provides proof of Customer's tax exempt status.
7. DEFAULT AND REMEDIES. Customer will be in default if Xerox does not receive any payment within 15 days after the
date it is due, or if Customer breaches any other obligation under this SSA or any SSO hereunder. If Customer defaults,
Xerox, in addition to its other remedies (including the cessation of Services), may require immediate payment of (a) all
amounts then due, plus interest on all amounts due from the due date until paid as allowed under the State of
Washington prompt pay act, RCW 39.76.011, and (b) any applicable ETCs. Customer will pay all reasonable costs,
including attorneys' fees, incurred by Xerox to enforce any Services Contract.
8. CONFIDENTIAL INFORMATION. Each party will make reasonable efforts not to disclose the other party's Confidential
Information to any third party, except as may be required by law, unless such Confidential Information: (a) was in the
public domain before, at the time of, or after the date of disclosure through no fault of the non disclosing party; (b) was
rightfully in the non- disclosing party's possession or the possession of any third party free of any obligation of
confidentiality; or (c) was developed by the non disclosing party's employees or agents independently of and without
reference to any of the other party's Confidential Information. Confidentiality obligations set forth herein will expire 1
year after expiration or termination of this SSA or the last effective Services Contract hereunder, whichever is later;
provided however, confidentiality obligations with respect to Xerox Work, Xerox Tools and Xerox Client Tools will not
expire unless (a), (b) or (c) above become applicable thereto. The parties do not intend for Customer to disclose
confidential technical information hereunder, including, but not limited to, computer programs, source code, and
algorithms. Customer will only disclose the same pursuant to a separate written agreement. Upon expiration or
termination of this SSA or the last effective Services Contract hereunder, whichever is later, each party will return to the
other or, if requested, destroy, all Confidential Information of the other in its possession or control, except such
Confidential Information as may be reasonably necessary to exercise rights that survive termination of this SSA.
9. INTELLECTUAL PROPERTY. Customer represents and warrants that (a) it owns the Customer Content and Customer
Assets or otherwise has the right to authorize Xerox to use same to perform Services, and (b) Customer Content will not
contain content that (i) is libelous, defamatory or obscene, (ii) violates any applicable laws, regulations, or (iii) infringes
any third party rights. Customer acknowledges and agrees that Xerox does not undertake any obligation or duty
whatsoever to determine whether Customer Content may be duplicated without violating a third party's copyright.
Xerox, its employees, agents and /or licensors will at all times retain all rights to Xerox Work, Xerox Client Tools and
Xerox Tools and, except as expressly set forth herein, no rights to Xerox Work, Xerox Client Tools or Xerox Tools are
granted to Customer. If required for royalty reporting purposes, Xerox may disclose Customer's name and address to
the third party licensor of certain Xerox Tools. Xerox Tools will be installed and operated only by Xerox. Customer will
have access to data and reports generated by the Xerox Tools and stored in a provided database as set forth in the
applicable SOW, but Customer will have no rights to use, access or operate the Xerox Tools. Xerox may remove Xerox
Tools at any time in Xerox's sole discretion, provided that the removal of Xerox Tools will not affect Xerox's obligations
to perform Services. If Xerox Client Tools are included as part of the Services, they may be used by Customer only in
conjunction with such Services. Customer agrees not to decompile or reverse engineer any Xerox Work, Xerox Client
Tools, or Xerox Tools. Xerox grants Customer a non exclusive, perpetual fully paid -up, worldwide right to use, display
and reproduce Xerox Work and Documentation only as required for use of the Services and Deliverables for Customer's
customary business purposes, and not for resale, license and /or distribution outside of Customer's organization.
Customer may not sublicense any rights granted to Customer hereunder, but may authorize a third party "Designee to
use such rights, solely for Customer's benefit and Customer's internal business purposes. Any Designee operating or
maintaining the delivered solution must be subject to written confidentiality obligations with respect to Confidential
Information that are no less restrictive than those set forth in this SSA. Output of Services is Customer's sole and
exclusive property and Xerox will have no rights therein, except as may be required for Xerox to perform Services.
Assessments are provided for Customer's internal business use only, and not for resale, license and/or distribution
outside of Customer's organization and the implementation of Assessments may not be performed by any third party.
Except as expressly set forth in this Section, no other rights or licenses are granted to Customer. Any rights or licenses
that are granted to Customer will immediately terminate if Customer defaults with respect to any of Customer's
obligations related to such rights or licenses. Xerox reserves the right to terminate such rights or licenses if Customer
defaults under any other obligation under a Services Contract.
10. CUSTOMER RESPONSIBILITIES.
W
a. Customer will (i) provide the Customer Assets that Xerox needs to perform the Services and (ii) grant sufficient
rights to enable Xerox and its agents to use all Customer Assets and Customer Content.
b. During the term of an Order, Customer will permit access to Customer personnel that Xerox needs to perform the
Services.
c. Equipment prices include standard delivery charges for all Equipment and, for Equipment for which Xerox retains
ownership, standard removal charges. Non standard delivery or removal charges will be at Customer's expense.
d. Customer will legally dispose of all hazardous wastes generated from use of Third Party Hardware and associated
supplies.
11. EARLY TERMINATION.
a. Equipment. Equipment included in an Order is being provided for the entire term of the Order. If, prior to the
expiration of an Order, Customer terminates Equipment or requires Equipment to be removed or replaced, or Xerox
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terminates the applicable Order due to Customer's default, Customer will pay all amounts due as of the termination
date and the ETCs set forth in the. applicable Services Contract.
b. Services. Unless otherwise set forth in an SOW, Customer may terminate or reduce any Services upon 90 days
prior written notice without incurring ETCs. Notwithstanding the foregoing, if any Services are terminated (i) by
Xerox due to Customer's default, or (ii) by Customer and Customer acquires Services from another supplier within 6
months of the termination of such Services, Customer will pay all amounts due as of the termination date and ETCs
equal to the then current MMC for the terminated or reduced Services, multiplied by the number of months
remaining in the term of the applicable Order, not to exceed 6 months.
c. Amortized Services and Third Party Funds. The cost of certain Services, such as consulting and training, may be
amortized over the term of an Order "Amortized Services or Xerox may provide funds to acquire Third Party
Hardware, license Third Party Software, or retire debt on existing Third Party Hardware (`Third Party Funds
Amortized Services and Third Party Funds are collectively referred to as "Funds The Funds amount is included in
the MMC. Notwithstanding Section 11.b above, if an Order is terminated prior to expiration for any reason, or if a
unit of Third Party Hardware or any Third Party Software for which Third Parry Funds have been provided is
removed or replaced prior to expiration, Customer agrees to pay to Xerox (i) all amounts due as of the termination
date, and (ii) ETCs equal to the remaining principal balance of the Funds, plus a 15% disengagement fee.
Customer will be billed the 15% disengagement fee. Upon Customer's written request, Xerox will issue an
adjustment invoice credit to be applied only against the 15% disengagement fee included in the 3 party or
amortized service order. Customer will maintain the manufacturer's maintenance agreement for any Third Party
Hardware and Third Party Software.
12. INDEMNIFICATION.
a. Each party, at its expense, if promptly notified by the other and given the right to control the defense, will defend the
other from, and pay any settlement agreed to by the indemnifying party or any ultimate judgment for, all claims by
third parties for personal injury (including death) or damage to tangible property to the extent proximately caused by
the willful misconduct or negligent acts or omissions of the indemnifying party, its employees or agents in
connection with this SSA.
b. Xerox, at its expense, if promptly notified by Customer and given the right to control the defense, will defend
Customer from, and pay any settlement agreed to by Xerox or any ultimate judgment for, any claim not identified in
(i) -(vi) below or subject to 12.c. below that any Services or Deliverables (excluding Third Parry Products) infringe a
third party's U.S. intellectual property rights. Xerox is not responsible for any non -Xerox litigation expenses or
settlements unless Xerox pre- approves them in writing. Excluded herein are claims arising from or relating to: (i)
Services performed using Customer Assets, Customer Content or other materials provided to Xerox by Customer
for which Customer failed to provide sufficient rights to Xerox; (ii) Services performed, or Deliverables provided, to
Customer's direction, specification or design, (iii) infringement resulting from or caused by Customer's misuse or
unauthorized modification of systems or products; (iv) use of Services or Deliverables in combination with other
products, services or data streams not provided by Xerox if such combination forms the basis of such claim; (v)
Customer's failure to use corrections or enhancements to the Services or Deliverables provided by Xerox; and (vi)
breach of Customer's representations and warranties in Section 9(b). If the use of the Services or Deliverables
(excluding Third Party Products) are enjoined as a result of a claim under this Section, or in the reasonable opinion
of Xerox are likely to be the subject of such a claim, Xerox will, at its option and sole expense, exercise any or all of
following remedies: (w) obtain for Customer the right to continue to use such Services or Deliverables; (x) modify
such Services or Deliverables so they are non infringing; (y) replace such Services or Deliverables with non
infringing ones; or (z) terminate and/or accept the return of such Deliverables and refund to Customer any amount
paid, less the reasonable rental value for the period such Deliverable was available to Customer.
c. Customer, at its expense, if promptly notified by Xerox and given the right to control the defense, will defend Xerox
from, and pay any settlement agreed to by Customer or any ultimate judgment for, all third party claims arising out
of or related to Section 12.b(i) -(vi).
d. The indemnifying party is not responsible for any litigation expenses of the indemnified parry or any settlements
unless it pre- approves them in writing. The indemnifying party shall not unreasonably withhold such pre approval.
13. LIMITATION OF LIABILITY. Xerox will not be liable to Customer, in the aggregate, for any direct damages in excess of
the amounts paid by Customer to Xerox during the 12 months prior to the claim or $50,000, whichever is greater, and
neither party will be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out
of or relating to this SSA or any Order hereunder, whether the claim alleges tortious conduct (including negligence) or
any other legal theory. This limitation of liability is not applicable to: (a) any specific indemnification obligations set forth
in this SSA; (b) where either party has (i) exceeded the rights to the other party's intellectual property granted to it under
this SSA, or (ii) misappropriated or infringed the other party's intellectual property under this SSA.
14. ASSIGNMENT. Customer may not assign any of its rights or obligations hereunder. Xerox may assign this SSA and
any Orders hereunder, in whole or in part, without prior notice to Customer. Xerox will not release any credit information
about customer to assignee without Customer's prior written approval. Each successive assignee of Xerox will have all
of the rights but none of the obligations of Xerox pursuant to this SSA. Customer will continue to look to Xerox for
performance of Xerox's obligations hereunder and Customer hereby waives and releases any assignees of Xerox from
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Page 3 of 8
29
any such claim. Customer will not assert any defense, counterclaim, or setoff that Customer may have or claim against
Xerox against any assignee of Xerox.
15. FORCE MAJEURE. Except for payment obligations, neither party will be liable to the other for its failure to perform any
of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its
reasonable control. The affected party will notify the other party of each such circumstance.
16. MAINTENANCE SERVICES.
a. Except for Equipment identified as "No Svc Maintenance Services will be provided for the Equipment during
Xerox's standard working hours in areas open for repair service. Maintenance Services excludes repairs due to: (i)
misuse, neglect or abuse; (ii) failure of the installation site or the PC or workstation used with the Equipment to
comply with Xerox's published specifications; (iii) use of options, accessories or products not serviced by Xerox; (iv)
non -Xerox alterations, relocation, service or supplies; or (v) failure to perform operator maintenance procedures
identified in operator manuals. Replacement parts may be new, reprocessed or recovered and all replaced parts
become Xerox's property. Xerox will, as Customer's exclusive remedy for Xerox's failure to provide Maintenance
Services, replace the Equipment with an identical model or, at Xerox's option, another model with comparable
features and capabilities. Notwithstanding anything to the contrary herein, Xerox will have no obligation to replace
Equipment beyond its end of service date. There will be no additional charge for the replacement Equipment during
the initial Term. Unless the applicable Order requires Xerox to provide meter readings, Customer will provide them
using the method and frequency identified by Xerox. If Customer does not provide a meter reading, Xerox may
reasonably estimate the reading and bill Customer accordingly.
b. CARTRIDGES. If Xerox is providing Maintenance Services for Equipment that uses Cartridges, Customer will use
only unmodified Cartridges purchased directly from Xerox or its authorized resellers in the U.S. Failure to use such
Cartridges will void any warranty applicable to such Equipment. Cartridges packed with Equipment and/or
furnished by Xerox as Consumable Supplies will meet Xerox's new Cartridge performance standards and may be
new, remanufactured, or reprocessed and contain new and /or reprocessed components. To enhance print quality,
Cartridge(s) for many models of Equipment have been designed to cease functioning at a predetermined point.
Many Equipment models are designed to function only with Cartridges that are newly manufactured, original Xerox
Cartridges or with Cartridges intended for use in the U.S. Equipment configuration that permits use of non -newly
manufactured original Xerox Cartridges may be available from Xerox at an additional charge.
c. PC/WORKSTATION REQUIREMENTS, For Equipment requiring connection to a PC or workstation, Customer
must use a PC or workstation that either (i) has been provided by Xerox, or (ii) meets Xerox's published
specifications.
17. CONSUMABLE SUPPLIES INCLUDED. If specified in an Order, Xerox will provide Consumable Supplies for
Equipment. Consumable Supplies are Xerox's property until used by Customer, and Customer will (a) use them only
with the Equipment included in the applicable Order, (b) return all Cartridges to Xerox as provided herein, and (c) at the
end of the term of the applicable Order, return any unused Consumable Supplies to Xerox at Xerox's expense using
Xerox supplied shipping labels or destroy them in a manner permitted by applicable law. Should Customers use of
Consumable Supplies exceed Xerox's published yields by more than 10 Xerox will notify Customer of such excess
usage. If such excess usage does not cease within 30 days after such notice, Xerox may charge Customer for such
excess usage. If Xerox provides paper under a Services Contract, upon 30 days notice, Xerox may adjust paper pricing
or either party may terminate the provision of paper.
18. EQUIPMENT STATUS. Unless Customer is acquiring Previously Installed Equipment, Equipment will be either: (a)
"Newly Manufactured which may contain some recycled components that are reconditioned; (b) "Factory Produced
New Model which is manufactured and newly serialized at a Xerox factory, adds functions and features to a product
previously disassembled to a Xerox predetermined standard, and contains both new components and recycled
components that are reconditioned; or (c) "Remanufactured which has been factory produced following disassembly to
a Xerox predetermined standard and contains both new components and recycled components that are reconditioned.
Xerox makes no representations as to the manufactured status of Third Party Hardware.
19. TITLE, RISK OF LOSS AND PROTECTION OF XEROX'S RIGHTS. Title to Equipment and Third Party Hardware will
remain with Xerox unless purchased by Customer. Risk of loss for the Products will pass to Customer upon delivery.
Customer will keep the Products insured against loss and the policy will name Xerox as Loss Payee. Customer hereby
authorizes Xerox or its agents to file financing statements necessary to protect Xerox's rights to Equipment and Third
Party Hardware.
20. WARRANTIES AND DISCLAIMERS.
a. SERVICES WARRANTY. Xerox warrants to Customer that the Services will be performed in a skillful and
workmanlike manner. If the Services do not comply with the service levels in an applicable SOW, Customer will
notify Xerox in writing detailing its concerns. Within 10 days following Xerox's receipt of such notice, Xerox and
Customer will meet, clarify the Customer's concern, and begin to develop a corrective action plan "Plan As
Customers exclusive remedy for such non compliance Xerox will either modify the Services to comply with the
applicable service levels or re -do the work at no additional charge within 60 days of finalizing the Plan or another
time period agreed to, in writing, by the parties.
b. THIRD PARTY PRODUCT WARRANTY. For Third Party Products selected solely by Xerox for an Order, Xerox
warrants they will operate substantially in conformance with applicable service levels in the SOW. If, within a
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30
reasonable time after provision of such Third Party Products, they cannot be brought into substantial conformance
with the services levels in the SOW, and such non conformance is a result of Xerox's use of such Third Party
Products, Customer's exclusive remedy is to receive a refund of any fees paid for the non conforming Third Party
Products upon their return to Xerox. Xerox will pass through to Customer any warranties provided to it by the
manufacturer or licensor of Third Party Products to the extent permissible.
c. WARRANTY DISCLAIMER AND UCC WAIVER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
THIS SECTION, XEROX MAKES NO OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED; AND
XEROX DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF NON INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY,
AND ANY WARRANTIES RELATING TO DESIGN, PERFORMANCE, FUNCTIONALITY, OR COMPATIBILITY
WITH CUSTOMER'S SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND AS PERMITTED BY
APPLICABLE LAW, CUSTOMER WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY
ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE.
d. The warranties set forth in this SSA are expressly conditioned upon the use of the Services and Deliverables for the
purposes for which they were intended or designed, and do not apply to Services or Deliverables subjected to
misuse, accident, alteration or modification by Customer or any third party (except as specifically authorized in
writing by Xerox). In no event will Xerox be responsible for any failure to perform Services caused by: (i) Customer
Assets, Customer Content, or services, maintenance, design implementation, supplies or data streams provided by
Customer, Customer's agent or service provider to Xerox for use hereunder, (ii) Customer's failure to contract for
the minimum types and quantities of Products required by Xerox to perform the Services, or (iii) Customer's failure
to perform its obligations under Section 10.a. or b.
21. SOFTWARE TERMS.
a. SOFTWARE LICENSE. Xerox grants Customer a non exclusive, non transferable license to use in the U.S.: (i)
Base Software only with the Equipment with which it was delivered; and (ii) Application Software only on any single
unit of Equipment for as long as Customer is current in the payment of all applicable software license fees.
Customer has no other rights to Software. The Base Software license will terminate; (y) if Customer no longer uses
or possesses the Equipment; or (z) upon the expiration of any Order under which Customer has rented or leased
the Equipment (unless Customer has exercised an option to purchase the Equipment). Neither Xerox nor its
licensors warrant that Software will be free from errors or that its operation will be uninterrupted. The foregoing
terms do not apply to Diagnostic Software or to software /documentation accompanied by a clickwrap or shrinkwrap
license agreement or otherwise made subject to a separate license agreement. Third Party Software is subject to
license and support terms provided by the vendor thereof.
b. SOFTWARE SUPPORT. For Base Software, Software Support will be provided during the initial term of the
applicable Order and any renewal period, but not longer than 5 years after Xerox stops taking customer orders for
the subject Equipment model. For Application Software, Software Support will be provided as long as Customer is
current in the payment of all applicable software license and support fees. Xerox will maintain a web -based or toll
free hotline during Xerox's standard working hours to report Software problems and answer Software- related
questions. Xerox, either directly or with its vendors, will make reasonable efforts to: (i) assure that Software
performs in material conformity with its user documentation; (ii) provide available workarounds or patches to resolve
Software performance problems; and (iii) resolve coding errors for the current Release and the previous Release for
a period of 6 months after the current Release is made available to Customer. Xerox will not be required to provide
Software Support if Customer has modified the Software. Maintenance Releases or Updates that Xerox may make
available will be provided at no charge and must be implemented within 6 months. Feature Releases will be subject
to additional license fees at Xerox's then current pricing. Each Release will be considered Software governed by
the provisions of this Section 21 (unless otherwise noted). Implementation of a Release may require Customer to
procure, at Customer's expense, additional hardware and /or software from Xerox or another entity. Upon
installation of a Release, Customer will'return or destroy all prior Releases. Xerox may annually increase Software
license and support fees for Application Software. For State and Local Government Customers, this adjustment will
take place at the commencement of each of Customer's annual contract cycles.
c. DISABLING CODE. Software may contain code capable of automatically disabling the Equipment. Disabling code
may be activated if: (i) Xerox is denied access to periodically reset such code; (ii) Customer is notified of a default
under a Services Contract; or (iii) Customer's license is terminated or expires.
d. DIAGNOSTIC SOFTWARE. Diagnostic Software is a valuable trade secret of Xerox. Xerox does not grant
Customer any right to use Diagnostic Software. Customer will allow Xerox reasonable access to the Equipment
during Customer's normal business hours to remove or disable Diagnostic Software if Customer is no longer
receiving Maintenance Services from Xerox.
e. TITLE AND RIGHTS. Title and all intellectual property rights to Software and Diagnostic Software will reside solely
with Xerox and/or its licensors (who will be considered third -party beneficiaries of Section 21.a). Customer will not,
and will not allow its employees, agents, contractors or vendors to: (i) distribute, copy, modify, create derivatives of,
decompile or reverse engineer Software or Diagnostic Software; (ii) activate Software delivered with the Equipment
in an inactivated state; or (iii) access or disclose Diagnostic Software for any purpose.
Form 52639 (July 2011)
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Page 5 of 8
31
22. REMOTE SERVICES. Certain models of Equipment are supported and serviced using data that is automatically
collected by Xerox from the Equipment via electronic transmission from the Equipment to a secure off -site location.
Examples of automatically transmitted data include product registration, meter read, supply level, Equipment
configuration and settings, software version, and problem /fault code data. All such data will be transmitted in a secure
manner specified by Xerox. The automatic data transmission capability will not allow Xerox to read, view or download
any Customer data, documents or other information residing on or passing through the Equipment or Customer's
information management systems.
23. DATA SECURITY. Certain models of Equipment can be configured to include a variety of data security features. There
may be an additional cost associated with certain data security features. The selection, suitability and use of data
security features are solely Customer's responsibility. Upon request, Xerox will provide additional information to
Customer regarding the security features available for particular Equipment models.
24. MISCELLANEOUS. This SSA and the Services Contract(s) hereunder constitute the entire agreement of the parties as
to its subject matter, supersede all prior and contemporaneous oral and written agreements, and will be construed under
the laws of the State of Washington (without regard to conflict -of -law principles). In the event of any conflict between
terms and conditions, the order of precedence will be this SSA, the SSO and the SOW, except where expressly stated
otherwise in this SSA. Customer authorizes Xerox or its agents to communicate with Customer by any electronic means
(including cellular phone, email, automatic dialing and recorded messages) using any phone number (including cellular)
or electronic address that Customer provides to Xerox. In any action to enforce this SSA or any Services Contract
hereunder, the parties agree to the jurisdiction and venue of the federal or state courts in Kings County, Washington. If
a court finds any term of this SSA or any Services Contract to be unenforceable, the remaining terms of this SSA and
the Services Contract will remain in effect. The delay or failure by either Party to enforce any right or remedy under this
SSA or any Services Contract will not constitute a waiver or forgiveness of such right or remedy. Xerox may retain a
reproduction (e.g., electronic image, photocopy, facsimile) of this SSA or any Order, which will be admissible in any
action to enforce it, but only SSA or Order held by Xerox will be considered an original. Except for documentation of
Equipment replaced by Xerox for reasons other than trade -in, all changes to this SSA or any Order will be made in an
amendment signed by both parties. Customer represents that: (a) it has the lawful power and authority to enter into this
SSA, (b) the person signing this SSA or any Order is duly authorized to do so, (c) entering into this SSA will not violate
any law or other agreement to which it is a party, (d) it is not aware of anything that will have a material negative effect
on its ability to satisfy its payment obligations under this SSA or any Services Contract, and (e) all financial information it
has provided, or will provide, to Xerox is true and accurate and provides a good representation of Customer's financial
condition. Each party will promptly notify the other, in writing, of any change in ownership, or if it relocates its principal
place of business or changes the name of its business. The following four clauses will control over every other provision
in a Services Contract: (w) Customer and Xerox will comply with all laws applicable to the performance of its obligations
hereunder, (x) in no event will Xerox charge or collect any amounts in excess of those allowed by applicable law,
(y) any part of a Services Contract that would, but for this Section, be construed to allow for a charge higher than that
allowed under any applicable law, is limited and modified by this Section to limit the amounts chargeable under such
Services Contract to the maximum amount allowed by law, and (z) if in any circumstances, an amount in excess of that
allowed by law is charged or received, such charge will be deemed limited to the amount legally allowed and the amount
received by Xerox in excess of that legally allowed will be applied to the payment of amounts owed or refunded to
Customer.
25. DEFINITIONS.
Rim
a. "Application Software" means software and accompanying documentation identified in an Order as "Application
Software
b. "Assessments" means assessment and recommendation reports created by Xerox in the performance of
assessment Services.
c. "Base Software" means software and accompanying documentation provided with Equipment.
d. "Cartridges" means Equipment components designated by Xerox as customer replaceable units, including
copy /print cartridges and xerographic modules or fuser modules.
e. "Confidential Information" means this SSA, Orders and certain business information identified as confidential that
each party may disclose to the other. Customer Content is considered Customer Confidential Information. Xerox
Work, Xerox Tools and Xerox Client Tools are considered Xerox Confidential Information.
f. "Consumable Supplies" means black toner (excluding highlight color toner), black developer, Cartridges and, if
applicable, fuser agent. For full -color Equipment Orders that include Consumable Supplies, Consumable Supplies
also includes, as applicable, color toner and developer. For Equipment identified as "Phaser', Consumable
Supplies may also include, if applicable, black solid ink, color solid ink, imaging units, waste cartridges, transfer
rolls, transfer belts, transfer units, belt cleaner, maintenance kits, print Cartridges, drum Cartridges, waste trays and
cleaning kits.
g. "Customer Assets" means all hardware, software and or workspace owned, leased, rented, licensed and /or
controlled by Customer, and any services used by Customer that Xerox needs to use or access to enable Xerox to
perform the Services.
h. "Customer Content" means documents, materials and data provided in hard copy or electronic format by Customer
to Xerox containing information about Customer and/or Customer's clients.
Form 52639 (July 2011)
JDB (05/2012) M3A- 68 -7 -11 C -1213-1424 A -26
Page 6 of 8
L "Deliverables" means Products, Output of Services, Assessments and Documentation.
j. "Developments" means items created by Xerox and its employees, agents, and/or licensors, including, but not
limited to, computer programs, code, reports, operations and procedures manuals, forms, design or other works of
authorship or materials, in the course of performing Services.
k. "Diagnostic Software" means software used by Xerox to evaluate or maintain the Equipment.
I. "Documentation" means all manuals, brochures, specifications, information and software descriptions, in electronic,
printed, and /or camera -ready form, and related materials customarily provided by Xerox for Customer's use as part
of the Services.
m. "Eligible Affiliate" means any domestic entity which controls, is controlled by, or is under common control with
Customer. Control (including the terms controls, controlled by and under common control with) means direct or
indirect power to direct the management and policies of an entity.
n. "Equipment" means Xerox -brand equipment.
o. "ETCs" means early termination charges paid by Customer in the event of early termination, for loss of bargain and
not as a penalty, as more fully defined in this SSA or the applicable Services Contract.
p. "Feature Releases" means new releases of Software that include new content or functionality.
q. "Maintenance Releases" or "Updates" means new releases of Software that primarily incorporate compliance
updates and coding error fixes.
r. "Maintenance Services" means the services provided by Xerox (or a designated servicer) to keep the Equipment in
good working order.
s. "MMC" means the Monthly Minimum Charge identified in an Order which, along with any Additional Impression
Charges, covers the cost for the Services, Products and Maintenance Services. The MMC may also include lease
buyout funds, Third Party Funds, supplemental funds, monthly equipment component amounts, remaining
Customer obligations from previous contracts, amounts being financed or refinanced, and Amortized Services.
One -time items are billed separately from the MMC.
t. "Order" means any (i) SSO, (ii) SOW which references an applicable Services Contract Number and is signed by
Customer and Xerox, or (iii) PO.
u. "Output of Services" means electronic images created by scanning tangible documents containing Customer
Content, or the content of any reports and other materials, created by Xerox specific to and for Customer per the
applicable Order, but does not include software.
v. "PO" means a Customer issued purchase order accepted by Xerox that references an applicable Services Contract
Number.
w. "Pre- existing Work" means items used or incorporated into the Services or Deliverables, or developed or acquired
by Xerox independent of performing the Services.
x. "Products" means, collectively, Consumable Supplies, Equipment, Software and Third Party Products.
y. "Releases" means, collectively, Maintenance Releases, Updates and Feature Releases.
z. "Services" means managed services (e.g. copy center and mailroom services), consultative services, and /or
professional services, including, but not limited to, assessment, document management, imaging and language
translation services.
aa. "Services Contract" means this SSA together with one or more Orders designated by the same Services Contract
Number.
bb. "Services Contract Number" means a 10 -digit number assigned by Xerox to each Services Contract.
cc. "Software" means Application Software and Base Software.
dd. "Software Support" means the support and maintenance of software provided by Xerox (or a designated servicer).
ee. "SSO" means a Services and Solutions Order issued by Xerox pursuant to this SSA.
ff. "SOW" means a statement of work describing Services and Deliverables which (i) is incorporated by reference into
an SSO, or (ii) references an applicable Services Contract Number and is signed by Customer and Xerox.
gg. "Taxes" means all taxes, fees or charges of any kind (including interest and penalties) assessed by any
governmental entity on this SSA or any Order hereunder or the amounts payable to Xerox under this SSA or any
Order. Taxes do not include personal property taxes in jurisdictions where Xerox is required to pay personal
property taxes, or taxes on Xerox's income.
hh. 'Third Party Funds" is defined in Section 11.c.
ii. "Third Party Hardware" means non -Xerox brand equipment.
jj. 'Third Party Products" means, collectively, Third Party Hardware and Third Party Software.
kk. 'Third Parry Software" means non -Xerox brand software.
II. "U.S." means the United States and its territories and possessions.
Form 52639 (July 2011)
JDB (05/2012) M3A- 66- 7- 11C -12D -1424 A -26
Page 7 of 8
33
mm. "Xerox Client Tools" means certain Xerox proprietary tools (including any modifications, enhancements,
improvements and derivative works) that are owned by Xerox and are licensed to Customer for its use under an
accompanying click wrap license agreement.
nn. "Xerox Tools" means certain Xerox proprietary tools (including any modifications, enhancements, improvements
and derivative works) used by Xerox to provide certain Services.
oo. "Xerox Work" means, collectively, Developments and Pre Existing Work.
26. FUNDING. This provision is applicable to governmental entities only. Customer represents and warrants that all
payments due and to become due during Customer's current fiscal year are within the fiscal budget of such year and are
included within an unrestricted and unencumbered appropriation currently available for the acquisition of the Products,
and it is Customer's intent to use the Products for the entire initial term and to make all payments required under the
Agreement or an Order. If (a) through no action initiated by Customer, Customer's governing body does not appropriate
funds for the continuation of the Agreement or an Order for any fiscal year after the first fiscal year and has no funds to
do so from other sources, and (b) Customer has made a reasonable but unsuccessful effort to find an assignee within
Customer's general organization who can continue the Agreement or an Order, the Agreement or the Order may be
terminated. To effect this termination, Customer must, 30 -days prior to the beginning of the fiscal year for which
Customer's governing body does not appropriate funds for the upcoming fiscal year, notify Xerox that Customer's
governing body failed to appropriate funds and that Customer has made the required effort to find an assignee.
Customer's notice must certify that canceled Equipment is not being replaced by equipment performing similar functions
during the ensuing fiscal year. Customer agrees to release the Equipment to Xerox and, when returned, the Equipment
will be in good condition and free of all liens and encumbrances. Customer will then be released from any further
payments obligations beyond those payments due through the end of the funded fiscal year.
M
1 L City of Tukwila
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Form 52639 (July 2011)
JDB (05/2012) MM- 6B -7 -11 C-1 2D-1424 A -26
XEROX CORPORATION
71144j�
Signature
Melanie, W h d on
Name
Title
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Date
Page 8 of 8
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Finance Safety Committee
FROM: Peggy McCarthy, Finance Director
BY: Richard Takechi, Fiscal Coordinator
DATE: August 21, 2012
SUBJECT: Amending Contract #09 -130 Between the City of Tukwila and Foster
Pepper PLLC
ISSUE
Amend Contract #09 -130 between the City and Foster Pepper PLLC to provide for up to
$25,000 of litigation services and thereby increasing the total contract to $63,040.
BACKGROUND
The City has retained Foster Pepper PLLC as its Bond Counsel as it relates to the Tukwila
Urban Center Access (Klickitat) Project Local Improvement District. The current contract
excludes litigation services. The amendment will allow Foster Pepper PLLC to perform certain
litigation services should any LID property owners contest the assessment role or related
decisions. This amendment will increase the contract to over $40,000, thus, needing Council
approval.
DISCUSSION
The attached proposed amendment will increase the contract in an amount not to exceed
$25,000 in the event of litigation. The City is anticipating appeals to the Hearing Examiner, and
consequently, potential litigation. This amendment will cover that cost, the exception being
litigation which is appealed to the superior court. If this occurs, the City would have the
discretion of modifying this agreement or utilizing other sources. This $25,000 amendment will
increase the original contract amount not to exceed $63,040. Having Foster Pepper PLLC
perform the services will appear fair and unbiased as a third party.
RECOMMENDATION
The Council is being asked to authorize the Mayor to sign the contract amendment in an
amount not to exceed $25,000 and the entire contract not to exceed $63,040 and forward this
item to the Consent Agenda of the September 4, 2012 Regular Meeting.
ATTACHMENTS
Amendment to contract #09 -130.
Contract #09 -130.
35
R91.9
CITY OF TUKWILA
CONTRACT FOR SERVICES
Amendment 1
Between the City of Tukwila and Foster Pepper PLLC
That portion of Contract No. 09 -130, 4A between the City of Tukwila and Foster Peeper
PLLC is amended as follows:
4.A.
Payment for the work provided by Bond Counsel shall be made as provided on Exhibit C
attached, provided that the total amount of payment to Bond Counsel for Bond Counsel work
shall not exceed $17,640 plus $5,400 for a total of $23,040. This amount is based on the current
estimated maximum bond amount of $9,500,000. Payment for the work provided by Bond
Counsel for special counsel services, including special counsel work previously performed under
the Original 2006 Agreement, shall not exceed $15,000. In the event of litigation in
connection with the formation of the LID or the assessment roll confirmation, or related
contested hearings, with the exception of an assessment appeal to superior court, Bond
Counsel will represent the City for work in an additional amount not exceeding $25,000. If
an assessment(s) is appealed to superior court, then the City has the option to amend this
Agreement as it pertains to this type of litigation. The maximum amount payable under
this Agreement (including special counsel work previously paid) shall not exceed $63,040
without a written modification of this Agreement signed by both parties.
All other provisions of the contract shall remain in full force and effect.
Dated this day of 2012.
FOSTER PEPPER PLLC
Contractor
Hugh`D. Spitzer, Nle'ml
ATTEST/ AUTHENTICATED
Christy O'Flaherty, MMC, City Clerk
CITY OF TUKWILA
Jim Haggerton, Mayor
APPROVED AS TO FORM
City Attorney
Date approved by City Council
(Applicable if contract amount is over $40,000)
contractamend.doc
51235854.1 37
W.*
09 -130
Council Approval N/A
AGREEMENT FOR BOND COUNSEL SERVICES
THIS AGREEMENT is entered into between the City of Tukwila, Washington (the "City and
Foster Pepper PLLC ('Bond Counsel in consideration of the mutual benefits, terms, and
conditions hereinafter specified. This Agreement supersedes and replaces a similar agreement
entered into in 2006 (the "Original 2006 Agreement
1. Project Designation. Bond Counsel is retained by the City to perform bond counsel
services and special counsel services in connection with the Southcenter Urban Access
Improvement Project Local Improvement District (the "LID").
2. Scope of Services. Bond Counsel agrees to perform the bond counsel services described
on Exhibit A attached, and the special counsel services described on Exhibit B attached.
3. Commencement of Performance. Work under this contract has commenced under the
terms of the Original 2006 Agreement.
4. Payment. Bond Counsel shall be paid by the City for completed work and for services
rendered under this Agreement as follows:
A. Payment for the work provided by Bond Counsel shall be made as provided on
Exhibit C attached, provided that the total amount of payment to Bond Counsel for
Bond Council work shall not exceed $17, 640 plus $5,400 for a total of $23,040.
This amount is based on the current estimated maximum bond amount of
$9,500,000. Payment for the work provided by Bond Counsel for special counsel
services, including special counsel work previously performed under the Original
2006 Agreement, shall not exceed $15,000. The maximum amount payable under
this contract (including special counsel work previously paid) shall not exceed
$38,040 without a modification of this Agreement signed by the City.The parties
recognize that this maximum amount for special counsel work does not contemplate
Bond Counsel representing the City in any litigation challenging the formation of the
LID or challenging the assessment roll.
B. Bond Counsel may submit invoices to the City once per month for special counsel
services during the progress of the work for partial payment for that portion of the
project completed to date. Special counsel invoices should identify the attorney or
legal assistant performing the work, the date of the work, a short description of the
tasks performed, and the amount charged for that work. Both special counsel and
Bond Counsel work should summarize expenses charged. Invoices will be checked
by the City and, upon approval thereof, payment shall be made to Bond Counsel in
the amount approved. Invoices should be sent to: Cyndy Knighton, Senior
Transportation Engineer, City of Tukwila, 6300 Southcenter Blvd., Suite 100,
Tukwila, WA 98188.
C. Payment is provided in this section shall be full compensation for work performed
and for all materials, supplies, equipment and incidentals necessary to complete the
510069393
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work, except that Bond Counsel shall be reimbursed for photocopying (not more
than .10 /page), travel expenses, long distance telephone charges, and courier
services.
D. Bond Counsel's records and accounts pertaining to this Agreement are to be kept
available for inspection by representatives of the City and state for a period of three
years after final payments. Copies shall be made available upon request.
5. Ownership and Use of Documents. All documents, and other materials produced by
Bond Counsel in connection with the services rendered under this Agreement shall be the
joint property of the City and Bond Counsel. Bond Counsel shall be permitted to retain
copies, including reproducible copies, of all documents for information, reference and use
in connection with Bond Counsel's endeavors. Bond Counsel shall not be responsible or
liable for any use of the said documents, or other materials by the City on any project or
financing other than the project and financing specified in this Agreement.
6. Compliance with Laws. Bond Counsel shall, in performing the services contemplated
by this Agreement, faithfully observe and comply with all federal, state, and local laws,
ordinances and regulations, applicable to the services to be rendered under this
Agreement.
7. Conflicts of Interest. Bond Counsel represents many political subdivisions, companies
and individuals in numerous business, real estate, securities and financing transactions,
some of which may involve the City. Bond Counsel does not foresee that any such
representation will adversely affect its ability to represent the City as provided in this
Agreement, because the potential for such adversity is remote or minor and outweighed
by the consideration that it is unlikely that advice given to the other client will be relevant
to any aspect of the work undertaken as a result of this Agreement. However, during the
terms of this engagement Bond Counsel shall not represent any adverse parties against the
City without the City's prior written approval. By retaining Bond Counsel as its counsel
on this transaction, the City recognizes that firm's representation of any adverse clients
for whom waivers have previously been granted by the City. The City also approves Bond
Counsel's representation, in matters unrelated to the Bonds or the City, of any bond
underwriter that ultimately may purchase the City's LID bonds.
8. Indemnification. Bond Counsel shall indemnify the City, its officers, agents and
employees, from and against any and all claims, losses or liability, including attorney's
fees, arising from injury or death to persons or damage to property occasioned by any
negligent act, omission or failure of Bond Counsel, its, officers, agents and employees, in
performing the work required by this Agreement. With respect to the performance of this
Agreement and as to claims against the City, its officers, agents and employees, Bond
Counsel expressly waives its immunity under Title 51 of the Revised Code of
Washington, the Industrial Insurance Act, for injuries to its employees, and agrees that the
obligation to indemnify, provided for in this paragraph extends to any claim brought by or
on behalf of any employee of Bond Counsel. This waiver is mutually negotiated by the
parties. This paragraph shall not apply to any damage resulting from the sole negligence
510069393
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,J
of the City, its agents and employees. To the extent any of the damages referenced by this
paragraph were caused by or resulted from the concurrent negligence of the City, its
agents or employees, this obligation to indemnify is valid and enforceable only to the
extent of the negligence of Bond Counsel, its officers, agents and employees.
9. Insurance. Bond Counsel shall secure and maintain in force throughout the duration of
this contract comprehensive general liability insurance, with a minimum coverage of
$500,000 per occurrence and $1,000,000 aggregate for personal injury; and $500,000 per
occurrence/ aggregate for property damage, and professional liability insurance in the
amount of $1,000,000 per occurrence and annual aggregrate.
10. Independent Contractor. Bond Counsel and the City agree that Bond Counsel is an
independent contractor with respect to the services provided pursuant to this Agreement.
Nothing in this Agreement shall be considered to create the relationship of employer and
employee between the parties hereto. Neither Bond Counsel nor any employee of Bond
Counsel shall be entitled to any benefits accorded City employees by virtue of the
services provided under this Agreement. The City shall not be responsible for
withholding or otherwise deducting federal income tax or social security or for
contributing to the state industrial insurance program, otherwise assuming the duties of an
employer with respect to Bond Counsel, or any employee of Bond Counsel.
11. Covenant Against Kickbacks. Bond Counsel warrants that they have not employed or
retained any company or person, other than a bonafide employee working solely for Bond
Counsel, to solicit or secure this contract, and that they have not paid or agreed to pay any
company or person, other than a bonafide employee working solely for Bond Counsel,
any fee, commission, percentage, brokerage fee, gifts, or any other consideration
contingent upon or resulting from the award or making of this contract. For breach or
violation of this warrant, the City shall have the right to annul this contract without
liability, or in its discretion to deduct from the contract price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee,
gift, or contingent fee.
12. Discrimination Prohibited. Bond Counsel, with regard to the work performed by it
under this Agreement, will not discriminate on the grounds of race, color, national origin,
religion, creed, age, sex or the presence of any physical or sensory handicap in the
selection and retention of employees or procurement of materials or supplies.
13. Assignment. Bond Counsel shall not sublet or assign any of the services covered by this
Agreement without the express written consent of the City.
14. Non Waiver. Waiver by the City of any provision of this Agreement or any time
limitation provided for in this Agreement shall not constitute a waiver of any other
provision.
-3-
510069393
41
15. 'Termination.
A. The City reserves the right to terminate this Agreement at any time by giving ten
days written notice to Bond Counsel. Bond Counsel may terminate this Agreement
by giving 30 days written notice to the City, subject to the Rules of Professional
Conduct governing attorneys.
B. In the event of the death of a member, partner or officer of Bond Counsel, or any of
its supervisory personnel assigned to the project, the surviving members of Bond
Counsel hereby agree to complete the work under the terms of this Agreement, if
requested to do so by the City. This section shall not be a bar to renegotiations of
this Agreement between surviving members of Bond Counsel and the City, if the
City so chooses.
16. Notices. Notices to the City of Tukwila shall be sent to the following address:
City Clerk
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Notices to Bond Counsel shall be sent to the following address:
Hugh D. Spitzer
Foster Pepper PLLC
1111 Third Avenue, Suite 3400
Seattle, WA 98101
17. Integrated Agreement. This Agreement, together with attachments or addenda,
represents the entire and integrated Agreement between the City and Bond Counsel and
supersedes all prior negotiations, representations, or agreements written or oral regarding
Bond Counsel's services with respect to the LID. This Agreement may be amended only
by written instrument signed by both the City and Bond Counsel.
DATED the later execution date by each of the parties to this Agreement.
CITY OF TUKWILA
im H 'e on, M
Attest/Au enticated:
Christy O'Flaherty City Clerk
51006939.3
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BOND COUNSEL
n h,
Hugh D' Spitzer, Member`
Approved as to Form:
O ice th ity ttorriey
42
EXHIBIT A
SCOPE OF BOND COUNSEL SERVICES
FOSTER PEPPER PLLC
In the following, we use the term "bonds" to include any obligation of the City for which we
are asked to serve as bond counsel.
A. BOND COUNSEL SERVICES
Those services which Foster Pepper PLLC traditionally provides as bond counsel to the City
include.
(1) Advising the City and its consultants on the legal requirements applicable to and,
when requested, participating with those consultants and City staff in planning, the financing of a
project, including advice on state law and federal income tax and securities laws;
(2) Reviewing the transcripts relating to the prior issuance by the City of related
outstanding obligations (typically revenue obligations), to assure conformity of the bonds with
applicable covenants and conditions;
(3) Based on facts provided by the City, performing the necessary legal analysis to
determine, in financings in which the bonds are intended to be tax exempt, whether interest on the
bonds will qualify for an exclusion from gross income for federal income tax purposes, and
preparing tax exemption and nonarbitrage certificates;
(4) Drafting the ordinances /resolutions and other documents necessary to authorize the
bonds to be sold and issued (including, where applicable, ballot title ordinances /resolutions);
(5) Attending certain meetings relating to the sale and issuance of the bonds;
(6) Forwarding City financing documents to bond rating agencies and/or bond insurers,
when requested by the City or the City's financial consultant or underwriter, and explaining those
documents to agency and insurer representatives;
(7) When requested by the City or the City's financial consultant or underwriter, reading
those portions of drafts of the official statement, offering circular or other sales material relating to
the bonds prepared by the City's investment bankers necessary to assure the accuracy only of the
'description of the bonds, the source of payment and security for the bonds, any continuing disclosure
undertaking and the federal tax treatment of the interest on the bonds;
(8) Preparing closing documents necessary to support the issuance of the bonds and
assembling the transcript after the closing; and
(9) Subject to the completion of proceedings to our satisfaction, furnishing the firm's
approving legal opinion for the bonds regarding the validity and binding effect of the bonds and the
excludability of interest on the bonds from gross income for federal income tax purposes.
Exhibit A 1
510069393
43
Bond Counsel's bond opinion will be based on facts and law existing as of its date, and will
constitute the expression of our professional judgment on the matters expressly addressed and not a
guarantee of result. In rendering that opinion, Bond Counsel will rely upon the certified proceedings
and other certifications of public officials and other persons furnished to us without undertaking to
verify the same by independent investigation, and we will assume the City's continuing compliance,
after the issue date, with applicable laws relating to the bonds, During the course of this
engagement, we will rely on the City to provide us with complete and timely information on all
developments pertaining to any aspect of the bonds and their security, as well as the expected use of
bond proceeds. Bond Counsel understand and expect that officers and employees of the City will
cooperate in this regard.
B. OTHER SERVICES
Traditional bond counsel services described above do not include the following additional
bond and project- related work for the City which we would be pleased to perform on request,
working with the City's attorney or other designated representatives. The provision of these services
involves separate fee arrangements and compensation at the hourly rates set forth in Exhibit B.
(1) The drafting or review for sufficiency of any environmental impact statements or
other evidence of compliance with the State and National Environmental Policy Acts, the Shorelines
Management Act, Growth Management Act and similar laws;
(2) The drafting or review for accuracy of portions of any official statement, offering
circular or other sales material relating to the issuance of the bonds prepared by the City or its
underwriter or otherwise used in connection with such bonds, other than the review of those portions
of the official statement describing the bonds, the source of payment and security for the bonds, any
continuing disclosure undertaking and the expected federal tax treatment of the interest on the bonds
is included in our services as bond counsel (See item A.7 above);
(3) Giving advice to the City's consultants regarding the applicability of the registration
requirements under federal or state securities laws or regarding federal and state securities disclosure
requirements or due diligence review;
(4) Drafting or negotiating of bond purchase agreements (though as a matter of course as
bond counsel we typically review such agreements to assure that they conform to the City's bond
authorization documents);
(5) Negotiation and drafting of repurchase agreements, investment contracts, custodial
agreements, swap agreements, credit enhancement or liquidity facilities (other than bond insurance),
and contracts (including contracts with developers or owners of property included within local
improvement districts formed by the City), or disputes or litigation in connection therewith;
(6) Attending rating agency or public information meetings in connection with the
issuance of bonds;
Exhibit A 2
51006939.3
M A
(7) Preparation of supplemental opinions required of bond counsel by the City or the
underwriter of bonds in connection with their issuance;
(8) The drafting or obtaining of state or federal legislation;
(9) Participating in administrative proceedings, trial or appellate litigation;
(10) Drafting special assessment district formation and assessment documents and
attending special assessment hearings (see Exhibit B);
(11) Work in connection with seeking or obtaining governmental assistance or approvals
from governmental agencies other than the City, necessary for carrying out the purposes of the bond
issue;
(12) Providing services relating to public works bidding, negotiating design or
construction contracts, or carrying out the acquisition of property or the construction of projects;
(13) Representing the City in Internal Revenue Service examinations or inquiries, or
Securities and Exchange Commission investigations;
(14) After closing, providing continuing advice to the City or any other party concerning
any actions necessary to assure that interest paid on the bonds will continue to be excludable from
gross income for federal income tax purposes (e.g., our engagement as bond counsel does not
include rebate calculations for the bonds, dealing with changes of use or delays in the expenditure of
proceeds),
(15) Assisting the City with its continuing disclosure obligations consistent with
applicable securities laws; or
(16) Addressing any other matter not specifically set forth above that is not required to
furnish our bond opinion.
C. FILE MANAGEMENT
After the transaction is concluded, Bond Counsel will deliver to the City a complete copy of
the transcript of the transaction. A transcript is delivered generally within 30 to 60 days after
closing. We then close our files regarding the matter, and Bond Counsel's representation on the
transaction is completed. Additional services after closing would be addressed under Part B, above.
Exhibit A 3
51006939.3
45
EXHIBIT B
SPECIAL COUNSEL SERVICES
1. Prepare LID formation documents, including notices, resolution of intention and
formation ordinance, or review such documents prepared by the office of the City
Attorney.
2. Prepare assessment roll confirmation documents, including notices and confirmation
ordinance, or review such documents prepared by.the office of the City Attorney.
3. Prepare form of notice for collection, or review such notice as prepared by the office of
the City Attorney.
4. Attend meetings with staff and consultants as requested by City.
5. Attend and advise the City at the formation hearing, if requested by the City.
6. Attend and represent the LID or the City Council in assessment roll confirmation
hearings, if requested by the City.
7. Perform such other tasks as the City may reasonably request in connection with the
formation of the LID, confirmation of the assessment roll and preparation of notices for
collection.
Exhibit B
510069393
N
EXHIBIT C
1. Bond Counsel fees for LID revenue bonds shall be calculated according to the following
schedule:
Issue Size
Revenue Bonds
$100,000 or less
$4,800
$100,000 $999,999
$4,800 3.60 per $1,000 in
excess of $100,000
1M $4.999 M
$8,040 2.40 per $1,000 in
excess of $1 million
5M $9.999 M
$17,640 1.20 per $1000
in excess of $5 million
10M $20M
$23,640 +.60 per $1,000 in
excess of $10 million
Over $20M
Negotiable
SPECIAL RULES:
Bond Anticipation Notes: 0.65 times the bond fee, then 1/2 the bond fee on each rollover.
2. Fees for Special Counsel Services will be charged each attorney's standard hourly rate
then in effect, minus a 10% discount. The following reduced rates are currently in effect:
Hugh D. Spitzer $420.00
P. Stephen DiJulio 375.00
Other Members "Partners 375.00 (est.)
Associates 260.00 (est.)
Exhibit C
510069393
47
G KPI
aLS
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Finance and Safety Committee
FROM: Mike Villa, Chief of Police
DATE: August 10, 2012
SUBJECT: Police Department 2nd Quarter 2012 Report
BACKGROUND
The Police Department would like to keep the Finance and Safety Committee better
informed as to public safety and policing issues within the city.
At a previous Finance and Safety meeting I offered to provide the committee quarterly
reports beginning in 2012. The committee was in unanimously in favor of receiving
quarterly reports. This is the second such report and is for the second quarter.
DISCUSSION
During the presentation I will discuss crime in Tukwila and strategies to reduce crime.
RECOMMENDATION
The report is for information and discussion only. The Finance and Safety Committee is
not being asked to make any decisions.
ATTACHMENTS
Power Point Presentation 2nd quarter report
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City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Finance and Safety Committee
FROM: Stephanie Brown, Human Resources Director
DATE: August 15, 2012
SUBJECT: Update on Evaluation of Non Represented positions from 2012 Market Study
ISSUE
Resolution No. 1769 adopting the 2012 non represented salary and benefits schedule,
requested the Human Resources Department conduct a review and analysis of non represented
positions which the 2012 Market Study demonstrated fell over or under 5% on the wage
schedule.
BACKGROUND
During review and discussion of the 2012 non represented wage study this year, data presented
by Human Resources, and Compensation Consultant Ross Ardrey showed several positions
were significantly over or under the market. Given this information, the Council incorporated
into Resolution No. 1769 that by the end of 2012 Human Resources will evaluate
reclassification of the positions for which the market study demonstrated fell 5% on the wage
schedule.
The following non represented positions have been identified that are over or under the market
after the 2012 wage adjustment, and fall within the resolution criteria for review: (Attachment A)
Administrative Secretary 1
Building Official
City Administrator
Court Administrator
Deputy City Clerk
Senior Engineer
This memorandum is being presented as informational only. The Human Resources staff will
begin the review and analysis of these positions, and will report back their findings prior to the
end of 2012.
ATTACHMENTS
Attachment A
Resolution No. 1769
W
Attachment A
2012
2011
Average
Variance
2011 Top
Market
49.781
2012 Top
Position Title
Step
Average*
Variance
Step
Administrative Secretary 1
1 32.161
28.67
11%1
34.2
Building Official
1 50.581
49.401
2 %1
52.2
City Administrator
1 71.131
75.451
-6 %1
73.4
Court Administrator
1 41.371
46.311
-12%1
44.0
Deputy City Clerk
1 32.161
30.431
5 %1
34.2
Senior Engineer
1 50.581
47.321
6 %1
52.2
2012
Market
Average
Variance
28.901
16%
49.781
5%
78.42 1
-7%
46.871
-6%
29.991
12%
47.981
8%
2011 Market Average data and variance taken from page #16 of the Ross report
Prepared by HR Staff 7/30/12
87
p
C l e ty Of u la
Washington
Resolution No. I J 6
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, UPDATING AND CLARIFYING THE
NON REPRESENTED EMPLOYEES' COMPENSATION AND
ADOPTING THE NON- REPRESENTED SALARY SCHEDULE
AND BENEFITS SUMMARY, EFFECTIVE JANUARY 1, 2012.
WHEREAS, the Tukwila City Council has conducted a review of the non
represented employees' compensation system that was originally implemented in
January 1998; and
WHEREAS, the City Council recognizes that current economic conditions and
forecasts are a consideration in actions that deal with the compensation of employees;
and
WHEREAS, the City Council has made a determination to review the non
represented compensation for even numbered years and provide cost -of- living
allowances (COLAs) in odd numbered years; and
WHEREAS, a compensation study has been conducted and the recommended
non represented wage schedule and benefit information has been prepared for
implementation on January 1, 2012; and
WHEREAS, recent economic conditions have caused the City to make budget cuts
and, in recognition of requested and received concessions in the preceding budget to
the City's normal non represented salary plan process, the City Council has determined
to implement a one -time process for 2012 that includes a 3.33% COLA for all non
represented employee ranges A11 -F102, and a one -time adjustment to equalize ranges
with the average wage of comparable jurisdictions' positions for bands A11 C42 and
D62 E91. This one time adjustment to achieve equalization shall not exceed 3% per
band, irrespective of the comparable average; and
WAWord ProcessinglResofulionsWon- Represented Employees Com pens ation- 2012 -rvsd 5 -16 -12 final
SB:bjs Pagel o1`3 89
WHEREAS, these increases have been made based on the understanding that, by
the end of 2012, City Administration will evaluate reclassification of the positions for
which the market study demonstrated they fell 5% outside of the band
compensation; and
WHEREAS, the City Council requests that City Administration conduct a thorough
review of employee compensation and benefit methods used by other employers and
present a recommendation to the Council regarding whether the current compensation
methodology should be changed and the reasons for the recommendation by the end of
2012;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Section 1. Non Represented Employees Wage Plan. The following statements
have been used for the purpose of adopting the non represented employees' wages for
2012.
A. The following basic plan elements remain the same:
1. Decision Band Methodology (DBM) for creating classifications.
2. Market analysis using comparable jurisdictions'top -step wages.
3. Data was gathered through use of the "Association of Washington Cities
(AWC) Salary and Benefits Survey a publication that garners wide participation of our
comparables.
4. Regression line analysis to establish the Control Point for each DBM rating.
(Regression Line Analysis provided by Fox Lawson Associates, LLC, based on
Human Resources Department acquired market data).
5. Steps below the Control Point (Wage Schedule Top Step) are automatic as
individuals move through the system.
6. Ranges for all bands (A11 -F102) of the Decision Band Methodology have
been established based on the City Council's recommendation for creating the 2012
wage schedule.
7. Positions within Decision Bands A11 -C42 and D62 -E91 will receive a 3%
wage adjustment effective January 1, 2012. Positions within Decision Band C41 will
receive a 2% wage adjustment effective January 1, 2012.
8. A COLA increase will be given to positions within Decision Bands A11—
F102. The COLA increase shall be based on 90% of the Seattle Tacoma Bremerton
Consumer Price Index (CPI -W) Average (June 2010 to June 2011).
B. The Decision Band method of job evaluation will be used to establish
classifications and the relative internal value and relationship of non represented
positions within the City of Tukwila for 2012. The City Council will evaluate City
WAWord Process inglResolutions\Non-Represented Employees Compensation- 2012 -rvsd 5 -16 -12 final
90 sB:bjs Page 2 of 3
Administration's recommendations regarding continued use of the Decision Band
Method in 2013.
C. Merit will continue to be eliminated from the plan at this time and may be
reconsidered as a plan element in subsequent years.
D. Step increases from the minimum to the control point for all positions shall be
given annually on the employee's performance review date. There will be no step
increases for employees at or above the control point.
Section 2. Non represented salary schedule, employee benefits summary and
longevity pay plan.
A. The "Non- Represented Salary Schedule 2012," Attachment A hereto, shall be
approved, effective January 1, 2012.
B. The "Non- Represented Employee Benefits Summary 2012," Attachment B
hereto, shall be approved, effective January 1, 2012.
C. The "Longevity Pay Plan for Non Represented Employees 2012," Attachment
C hereto, shall be approved, effective January 1, 2012.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this ):ZE� day of m CL" 2012.
ATTEST /AUTHENTICATED:
Christy O'Flah9rrty, MMC, City Cf
APPROVED AS TO FORM BY:
;G
Shellky_M_-Ke_rs, City Attorney
Attachments:
Verna Seal, Council President
Filed with the City Clerk: -/J-
Passed by the City Council: i,_j A_
Resolution Number: LqL_�
-Attachment A, Non Represented Salary Schedule— 2012
Attachment B, Non Represented Employee Benefits Summary 2012
Attachment C, Longevity Pay Plan for Non- Represented Employees 2012
W:1Word Processing\ResolutionsWon- Represented Employees Compensation 2012 -rvsd 5 -16 -12 final
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m