HomeMy WebLinkAboutUtilities 2009-01-27 COMPLETE AGENDA PACKET Distribution. J. Morrow S. Hunstock
City of Tukwila K. Hougardy B. Giberson S. Kerslake
P. Linder F. Iriarte M. Miotke
Utilities Committee D. Robertson P. n C J. Pace
Laba
Mayor Haggerton G. Labanara C. Parrish
J. Hernandez R. Larson B. Arthur
•i• Kathy Hougardy, Chair R. Berry M. Cusick File Copy
K. Matej P. Lau Single side to Dana
Pam Linder
D. Speck M. Mathia 3 Extra Copies
•i•
C. O'Flahe S. Anderson e-mail to B.Saxton
Dennis Robertson M. Hart I Howat C. O'Flaherty, M.
S. Norris B. Still Hart, K. Narog, S.
N. Olivas R. Still Norris and S. Kirby
AGENDA
TUESDAY, JANUARY 27 2009
Time; 5.-00 PM Place; Conference Room #1
Item Recommended Action Page
I. Current Agenda Review I.
II. Presentation II.
III. Business Agenda III.
A. Comcast Franchise Agreement A. Forward to 2/2/09 Regular Pg. 1
Amend Ordinance for a Time Extension
B. 2009 Annual Small Drainage Program B. Forward to 02/9/09 C.O.W. Pg. 9
Consultant Selection and Agreement and 02/17/09 Regular
IV. Old Business
IV.
Future Agendas:
Next Scheduled Meeting: Tuesday, February 10, 2009
S The City of Tukwila strives to accommodate individuals with disabilities.
Please contact the Public Works Department at 206- 433 -0179 for assistance.
City of Tukvvila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
DATE:
Mayor Haggerton
Utilities Committee
Public Works Direct~
January 21, 2009
TO:
FROM:
SUBJECT:
Comcast Franchise Aqreement
Amend Ordinance No. 1688 for a Time Extension
ISSUE
Approve Comcast Franchise Extension and amend Ordinance No. 1688.
BACKGROUND
Comcast, formerly Telecommunications Inc. of Seattle was granted a 15-year non-exclusive
Franchise by the City for the construction, operation, and maintenance of a cable system within
the City by Ordinance No. 1688. Unless the timeline on the franchise agreement is extended,
the franchise agreement will expire on February 1, 2009.
DISCUSSION
Throughout the Franchise term, Comcast has been a good business partner and has
maintained a professional relationship with the City. Through the Franchise Agreement, the City
received significant benefits; including installation of the City's institutional fiber network, free
cable television services at City facilities and an upgraded cable system infrastructure to
accommodate City Channel 21.
Comcast and the City have begun preliminary discussions for a Franchise renewal. Due to
technological changes and mandates by the Federal Communications Commission (FCC), the
current Franchise Agreement needs to be significantly changed. Staff needs more time to
conduct research, evaluate Comcast's proposal and complete negotiations. A one-year
extension on the existing Franchise term to February 1, 2010 will allow staff and Comcast to
complete all tasks associated with the franchise renewal.
RECOMMENDATION
The Council is being asked to amend Ordinance 1688 to extend the expiration date to February
1, 2010 and consider this item at the February 2, 2009 Regular Meeting (due to time
constraints ).
Attachments: Ordinance No. 1688
Draft Ordinance
P:\PROJECTS\Franehise\Infomation Memo-Comeast Franchise Amendment - Final.doc
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WHEREAS, the City of Tukwila is authorized to grant nonexclusive franchises for the
operation of cable syslems within the City rights-of-way; and
City of Tukwila
Washington
Ordinance No. /10 g g
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE
FRANCHISE TO TELECOMMUNICATIONS, INC. OF SEATI1..E
FOR THE CONSTRUCTION, OPERATION, AND
MAINTENANCE OF A CABLE SYSTEM '\^/1THINTHE CITY
LIMITS, PROVIDING FOR SEVERABILITY, ~ND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, Telecommunications, Incorporated of Seattle has applied for such a franchise
to construct, operate, and maintain a cable system within the jurisdictional bOll.'1daries of
Tukwila; and
WHEREAS, the City has conducted a Community Needs Assessment to determine how
such a franchise can best address the existing cable services needs for public access, education,
and government within the City; and
WHEREAS, a public hearing has been conducted in accordance with the Master Cable
Ordinance (Section 4), during which any and all interested parties were allowed to provide
statements regarding the grant of the franchise rights contained herein; and
WHEREAS, the terms, conditions, and obligations provided herein are necessary to protect
the safety and welfare of the citizens of Tukwila and provide for the cable services needs of the
community;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1: Purpose.
This Ordinance, shall establish a non-exclusive Franchise, which constitutes an agreement
between the City of Tukwila (hereinafter the "City") and Tel Seattle, Inc. (hereinafter the
"Operator':). The Operator agrees to construct, maintain, and operate a cable television system for
the distribution of television and other electronic signals pursuant to the terms of this Franchise.
The City agrees to grant the Operator all necessary rights and privileges to use public rights of way
necessary for a cable television system. This agreement shall, as of its effective date, supersede and
replace all existing franchises previously granted by the City of Tukwila to the Operator or any of
its predecessors, subsidiaries or affiliated companies, and shall incorporate all provisions of
Ordinance #/68L the Master Ordinance, which is hereby made a part of this ordinance by this
reference.
Section 2: Length of Franchise.
The length of this Franchise shall be for a term of fifteen (15) years from
~/9' ~ through midnight ~I/ I II,..:? () () 9 . .;
Section 3: Service Area.
The Operator's service area shall be the entire incorporated area of the City of Tukwila, in its
present incorporated form or in any later reorganized, consolidated, enlarged, or re-incorporated
form.
.s."~tl0n 4: Franchise Fee.
The Operator shall pay to the City quarterly, on or before the thirtieth (30th) day of each
January, April, July and October, a sum equal to five percent (5%) or greater of gross revenues, for
the preceding three calendar months, as defined in Ordinance Ifp g 7 . Revenues that are derived
as a portion of a national or regional service shall be computed on a per subscriber basis if such
determination cannot be achieved by other means.
The City may raise the franchise fee, if so permitted by Federal and State law. Prior to
implementation of any increase in franchise fees the Operator may request a public hearing by the
City Council to discuss said increases. Following such a hearing the City Council may require the
implementation of such increase in accordance with the provisions of this Ordinance.
(a) Late Pavment. Any quarterly franchise fee not paid by the Operator within thirty (30)
days of the end of a quarter shall bear interest at the rate of hvelve percent (12%), per annum
or whatever maximum amount is allowed under State law, whichever is greater, from the due
date until paid.
(b) Financial Reports. Each franchise fee payment shall be accompanied by a financial report
on a form provided by the City showing the basis for the Operator's computation and
separately indicating revenues received by the Operator within the City from basic service,
pay TV service, other applicable sources of revenue, and such other information directly
related to confirming the amount of the Operator's gross revenues as may be reasonably
required by the City.
(c) Audit by City. The City shall have the right, upon reasonable notice or no less than two
(2) working days, to inspect the books and records of the Operator during normal business
hours, for the purpose of ascertaining the actual gross revenues collected by the Operator. In
the event that such audit discloses a discrepancy of more than ten percent (10%) behveen the
financial report submitted by the Operator with a quarterly payment and the actual gross
revenues collected by the Operator, the Operator agrees to pay to the City the costs of such
audit. In the event that such audit results in a determination that additional franchise fees are
due the City, the Operator further agrees to pay any additional franchise fees plus interest as
required for late payment on such additional franchise fees, computed from the date on which
such additional franchise fees were due and payable.
(d) Non-waiver. Acceptance of any franchise fee payment by the City shall not be construed
as an agreement by the City that the franchise fee paid is in fact the correct amount, nor shall
acceptance of payment by the City be construed as a release or waiver of any claim the City
may have for further or additional sums payable under the provisions of this Ordinance.
(e) Taxes. Nothing in this Section shall limit the Operator's obligation to pay applicable local,
State, or Federal taxes.
Section 5: Future Provisions
The City and the Operator acknowledge that the City should be provided with a cable ./
system that has at least the same general capabilities and capacity as those provided other cities.
served by the Operator in the King-Pierce-Snohomish County area of the State of Washington.
The City may, at its discretion, require that the Operator provide such interactive services as
addressability, security, computer interaction, banking, shopping, voice and data transmission,
High Definition Television (HDTV), fiber optic and other such features, as well as upgrades
capable of carrying at least fifty-four (54) channels, within twenty-four (24) months of any of the
following occurrences:
Provision by the Operator of any of the same services identified above to a preponderance
of the system; .
(a) Within the CitY of Seattle system; or,
(b) Within any community adjacent to Tukwila; or,
(c) In forty percent (40%) of the municipalities in the King, Pierce, and Snohomish Counties.
Notvvithstanding the above, the Operator shall complete the upgrade to fifty-four (54)
channels, provide the facilities in Section 8 Regional Public Access, and have the capability of
implementing these enhanced services within forty-eight (48) months from the effective date of
this franchise.
Prior to implementation of any such service, the Operator may request a public hearing by
the City Council, to discuss the benefits of said features to the citizens of the City. Upon a
finding by the City Council that such features are reasonably requlred to meet community needs,
taking into consideration the expense of providing such services and the potential costs to
st:bscribers, the City Counc.:.nay require the implementation of:'h features in accord with the
prvvisions of this agreement. If the Council deem it necessary, it may, at its own option by a
majority vote, extend the time requirements established in this section.
Section 6: Access Channels
Upon completion of the upgrade conditions the City shall be provided with thr~ ....
c.~a:'r:.els,.~e of which shall .be capabl~ of b,roa~casting live iron: .City Hall. The Ci.ty may
InitIallY snare a common public access cnannel v;lth other cC:::'.::'.'..:.mties, h0'Luever.. the Clty InilY
elect, at its option, to provide programming over an individual public access c.~annel for the
City's sole use.
Additional channels over and above the three (3) designated chap.nels shall be made
available for Public access, Education and Government (PEG) or City purposes when any of the
three (3) designated channels is in use for access purposes with programming during fifty
percent (50%) of the hours between 10:00 a.m. and 10:00 p.m., during any consecutive ten (10)
week period. The Operator shall, within six (6) months following a request by the City, subject to
the restrictions above, provide another designated access channel for this purpose.
The Operator shall continue to provide additional channels under the same conditions
described above. Programming on additional channels shall be distinct and non-repetitive of the
previous channel. If additional channels are designated for community use, but, after one year,
such channe1(s) are not utilized at least twenty-five percent (25%) of the hours between 10:00 a.m.
and 10:00 p.m. with programming, the access users will, within six (6) months of receiving
written notice from the Operator, group their programming into one contiguous block of time of
their choosing. The remaining broadcast time on such channel shall then revert to the Operator
for its unrestricted use within the terms and conditions of this ordinance.
Contributions to PEG access will not be considered in lieu of a franchise fee or other
obligations to the City.
Section 7: Government Access Equipment
The Operator shall provide, maintain, and install the necessary equipment for local /
government cablecasting within twelve (12) months of a request of the City, unless extended by
mutual written agreement. Such equipment shall not be less in quantity nor equivalent quality
than those listed in Appendix A, and all pieces shall be in new or like new condition.
Section 8: Regional Public Access
The Operator, upon completion of the upgrade or by the expiration of the forty-eight (48)
month period as prescribed in Section 5 Future Provisions, shall provide, maintain and operate a /
regional public access studio to serve South King County at a location mutually agreeable to all V
parties. Such facilities shall be subject to approval by the City as suitable. Such approval shall
not be unreasonably withheld.
Section 9: Institutional Networks
N Upon completion of the cable system upgrade the Operator's system shall have the capability
Vof bi-directional Institutional Networks for educational and public safety communications. An
entity desiring activation of such feature(s) will provide the City Council demonstrated need of
such use.
Prior to implementatiqn of any such service the Operator may request a public hearing by
the City Council, to discuss the benefits of said features to the citizens of the City. Upon a
finding by the City Council that such features are reasonably required to meet community needs,
taking into consideration the expense of providing such services and the potential costs to
subscribers, the Oty Council may require the implementation of such features in accord with the
provisions of this agreement.
Section 10: Emergency Override
Upon completion of the system upgrade subject to the conditions of Section FS, Future
Provisions the Operator shall make provisions for an emergency alert system. The Operator shall
establish a process which will provide a character generated scroll and will make its best effort to
furnish a voice override notifying viewers and listeners of an emergency. Subject to Federal and
State laws and regional planning authorities, control of these emergency override facilities shall
be the responsibility of the City. The City shall hold Operator, its agents, employees, officers,
and assigns harmless from any claims arising out of the emergency use of its transmitting
facilities by the City. The City, at its option may elect to shar"e this service with adjoining
communities.
Section 11: Emergency Power
Operator shall provide a standby power system to automaticaliy activate equipment at the
headend and hubs,"if applicable, in event of a primary electrical failure.
Section 12: Coverage.
The City shall be provided with cable television service in the entire Franchise area. If such a
condition does not now exist the Operator shall complete such wiring and be in a position to offer
cable reception to all residents within twelve (12) months from the grant of the Franchise. Areas
subsequently annexed shall be provided with cable availability within twelve (12) months, subject
to the terms in Section F14 Extraordinary Installation.
Section 13: Cable Availability
Cable service shall not be denied to any group of potential residential cable subscribers
because of the income of the residents of the local area in which such group resides.
Section 14: Extraordinary Installation
All residents requesting cable service and living within one hundred fifty (150) feet of existing
cable distribution lines shall have the cable installed at the prevailing published installation rate.
In the event a request is made f6r service and the residence is more than one hundred fifty
(150) feet from an existing cable distribution line, such installation shall be completed on a time
and material cost basis for that portion of the service line extending beyond one hundred fifty (150)
feet.
Section 15: Distribution Line Extension Charges
Cable Service shall be available to all residents within the City provided there are at least
thirty five (35) dwelling units per street mile.
In the event a request is made for service by a resident(s) living in an area not meeting such
criteria, the Operator. shall enter into a contractual agreement with the resident(s) requesting
service wherein the Operator shall be reimbursed for its construction costs. Whenever any
subsequent subscriber who did not contribute to the original cost of the extension connects to the
extended distribution service line, that subscriber shall pay his/her pro rata share directly to the
Operator prior to obtaining cable service. The Operator shall then promptly tender such payment
to the original subscriber so long as the agreement remains in force.
Reimbursement shall be calculated on a front foot basis as a percentage of the total cost of the
service line extension. Reimbursements shall be made to the original subscriber for a period of up
to five (5) years or to the point when the Operator has recovered its incremental costs to construct
the distribution service line.
The Operator may, at its option, record its contractual agreement with the original subscriber
in the office of the King County Recorder prior to the time any subsequent subscriber connects to
the extended service line.
Section 16: Public Buildings.
The Operator shall provide without charge for installation or monthly rate, basic service, one
outlet, and converter, if needed, at such public buildings and schools as specified in Appendix "B"
and "CO as well as other such buildings that may be constructed during the period of the Franchise
that are passed by cable and within one hundred fifty (150) feet of the trunk or distribution system.
Section 17: Penalties.
The City shall notify the Operator in writing stating the nature of a perceived deficiency in the
operation of the cable system and setting forth the time the Operator will be allowed to rectify such
alleged improper condition. The Operator may request an extension of time if construction is
suspended or delayed by the City, or where unusual weather, acts of God (e.g. earthquakes, floods,
etc.), extraordinary acts of third parties, or other circumstances which are reasonably beyond the
control of the Operator, delay progress.
The Operator shall nol, .hrough its own actions or inaction.. substantially contribute to the
delay and the amount of time allowed shall be reasonable as determined by the City. The
extension of time in any case should not be less than the extent of the actual delay experienced by
the Operator in such cases where the City finds that the delay was beyond the control of the
Operator.
Failure of the Operator to correct these deficiencies; except in those circumstances cited above,
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may result In tne Llry calling a neanng ,0 ue,ermme It pename:; s"oU~c.:. ue lmpose~, upon t!'.€'
Operator or if a material violation of the franchise has occurred.
If, following such hearing, it is determined by the City Council that the Operator has failed to
comply with the schedule set forth in the Franchise, monetary penalties shall be imposed as set
forth below for each day beyond thirty (30) days that the Operator has not fulfilled the
requirement(s) for:
a. Upgrade improvements and regional PEG facilities required by Section 5 Future
Provisions and Section 8 Regional Public Access, $200.00 per day;
b. Equipment and channels committed by the Operator to the City for access purposes as
well as I-Net activation. Sections 6 Access Channels: 7 Government Access Eauipment and 2
Institutional Networks, $200.00 per day; or,
c. Coverage of annexed areas where such is not completed as required by Section 1?
CoverageJ $200.00 per day.
Any late payment of these penalties shall be subject to the provisions of Section 4 Franchise
Fee. subsection (a) Late Payment, contained herein.
Monetary penalties may be assessed retroactive to the date that notification was provided to
the Operator in such cases where the Operator has been non-responsive in correcting the situation
or in the case of flagrant violations.
Termination of the Franchise pursuant to the procedure outlined in Section 32 Removal &
Abandonment of Property of Franchisee of Ordinance NoJtJ.1 may be imposed for any violation
of one or more of the above listed items. The Operator and the City agree that any of the above
described violations, unless excused, or not corrected by the Operator within the time allotted,
shall constitute failure to comply with a material provision of the Franchise.
No penalty, bond, forfeiture, or termination shall be imposed for delays where such delays are the
result of causes beyond the reasonable control and/or without substantial fault or negligence of
the Operator, as reasonably determined by the City.
Section 18: Independent Contractors.
This agreement shall not be construed to provide that the Operator is the agent or legal
representative of the City for any purpose whatsoever. The Operator is not granted any express or
implied right or authority to assume or create any obligation or responsibility on behalf of or in the
name of the City or to bind the City in any manner or thing whatsoever.
Section 19: Entire Agreement.
This agreement, including the Master Cable Ordinance and exhibits that are attached hereto
and incorporated herein by reference represents all of the covenants; promises, agreements, and
conditions, both oral and written, between the parties. However, the City reserves the right to
waive any of these sections without affecting the applicability of other sections not so specifically
waived. Waiver of any Franchise requirement or Ordinance Sections by the City shall be in writing
in order to be effective.
Section 20: Successors or Assigns.
This Franchise Agreement, including all addenda, and the City's Master Cable Ordinance shall
be binding on the Operator, its heirs, successors, and assigns.
Section 21: Acceptance.
This grant of Franchise and its terms and provisions shall be accepted by the Operator by the
submission of a written instrument, executed and sworn to by a corporate officer of the Operator
before a Notary Public, and filed with the City Clerk within sixty (60) days after the effective date
of this Franchise. Such instrument shall evidence the unconditional acceptance of this Franchise
and the promise to comply with and abide by all its provisiOns, terms and conditions.
Se:ti(\n 22: Effective Date.
This Ordinance shall take effect five (5) days from the date of pubiication, rollowing adoption
by City Council. The Franchise granted by this Ordinance shall not become effective until the
. Operator files written acceptance thereof.
Section 23: Severability.
~~r'h Cl3rti{"\n C::l1hc:prt-lnn or other norHon of thi:; Ordinance shall bp- severable and the
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invalidity or any section, subsection, or other portion shall not invalidate the remainder.
Section 24: Notice.
Written notices shall be deemed to have been duly served if delivered in person to the
individual or entity for whom it was intended, or if delivered at or sent by registered or certified
United States mail to the last business address known to the party who gives the notice.
All notices and requests shall be addressed to the City of Tukwila and the Operator as
rollows:
CITY: City Clerk
City or Tukwila
6200 Southcenter Blvd.
Tukwila, W A 98188
OPERATOR: TCl Seattle, Inc.
15241 Pacific Hwy. S.
Seattle, W A 98188
ADDITIONAL NOTICE: TCI or Was rung ton, Inc.
Attn: Legal Department
P.O. Box 5630
Terminal Annex
Denver, CO 80217
PASSED. BY THE CI~ COU~L OF THE CITY OF TUKWILA, WASHINGTON, at a
Regular Meeting thereor this J f day or ~ ~( ,1994.
, 0
iJ 'J
'\'vL ~cl. ~v~(/L,
W. Rants, Mayor
ATTEST / AUTHENTICATED:
~L
J ne E. Cantu, City Clerk
APPROVED AS TO FORl'v1:
BY~~/~ ./! Ch__
Office or the City Attorney
FILED WITH THE CITY CLERK: / / ~ / '1 Y
PASSED BY THE CITY COUNCIL: / P. 'I/? ~ (..5i.~ 0/.......)
PUBLISHED: /~.
EFFECTIVE DATE:
ORDINANCE NO.: / ~ g Z
franchis.doc
o ..._,,-e:
ORDINA1~CE NO:
A1~ ORDINA1.~CE OF THE CITY COlJ"'NCIL OF THE CITY OF TUKWILA, WASHINGTON,
GRk~TL.~G A CABLE TELEVISION SYSTEM FR.AJ.~CHISE EXTENSION TO COMCAST OF
WASHINGTON IV, INCORPORATED; PROVIDING FOR SEVERABILITY; Ai"ll)
ESTABLISHING A1~ EFFECTIVE DATE.
WHEREAS, on February 2, 1994, the City of Tukwila (the "City") granted Telecommunications
Incorporated of Seattle ("TCI"), a fifteen (15) year non-exclusive Franchise (Ordinance No. 1688) to
construct, operate, a maintain a cable system within the City rights-of-way; and;
WHEREAS, the legal name of the cable system operator changed from TCI to Comcast of Washington
N, Incorporated ("Comcast"); and;
W1IEREAS, the City has determined the need for a one-year time extension to evaluate Comcast's
franchise renewal proposal, and complete negotiations; and;
WHEREAS, neither party waives any right which it enjoys under law as a result of agreeing to this
extension;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON,
DO ORDAIN AS FOLLOWS:
Section 1. The City Council hereby grants to Comcast of Washington N, Inc. a Franchise extension to
construct, operate, and maintain a cable system within the City limits. The terms and conditions of said
Franchise extension shall be set forth in Ordinance No. 1688, as amended. Said Franchise extension shall
commence on the effective date of this Ordinance and expire on February 2,2010.
Section 2: Len2th of Franchise
The length ofthe Franchise shall be for a term of sixteen (16) years from February 2, 1994
through midnight February 1,2010.
If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any
person or situation should be held to be invalid or unconstitutional for any reason by a court of competent
jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 3. Effective Date. This ordinance or a summary thereof shall be published in the official
newspaper of the City, and shall take effect and be in full force five days after passage and publication as
provided by law.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular
Meeting thereof this day of ' 2009.
ATTEST/AUTHENTICATED:
Jim Haggerton, Mayor
City Clerk
Office of the City Attorney
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
APPROVED AS TO FORiV1 BY:
City of TukwiJa
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
DATE:
Mayor Haggerton
Utilities Committee
Public Works Directo~
January 21, 2009
TO:
FROM:
SUBJECT:
2009 Annual Small Drainaqe Proqram
Project No. 09-DR01
Consultant Recommendation & Agreement
ISSUE
Approve KPG, Inc., to design the 2009 Annual Small Drainage Program.
BACKGROUND
The Annual Small Drainage Program identifies projects through maintenance activities as well as
citizen complaints. This year we are designing or completing the design of three projects for
construction in 2009.
ANALYSIS
Public Works staff reviewed the list of known system deficiencies and compiled a list of projects for
design and construction in 2009. Two projects involve permits with the Washington Department of
Fish and Wildlife 0fVDFW) and were reviewed in the field with their area biologist for preliminary
approval and expected required mitigation.
The current consultant roster was reviewed and KPG, Penhallegon Associates Consulting Engineers
and Perteet were short-listed to design the selected three projects.
KPG has designed the Annual Small Drainage Program since 1991 and Public Works staff continues
to be very satisfied with their work. KPG has a good working relationship with the WDFW, is
knowledgeable of City requirements, remains flexible to design changes, and continues to complete
design within the budget. Therefore, it is recommended that KPG design the 2009 Annual Small
Drainage Program for a fee of $58,584.86.
BUDGET SUMMARY
Design
Contract
$ 58,584.86
Budqet
$ 60,000
RECOMMENDATION
The Council is being asked to approve this design agreement with KPG, Inc. in the amount of
$58,584.86 for the 2009 Annual Small Drainage Program and consider this item at the February 9,
2009 Committee of the Whole meeting and the subsequent February 17, 2009 Regular Meeting.
Attachments: Location Map
Consultant Agreement
P:\PROJECTS\A- DR Projecls\09-DR01 (2009 SDP)\Design\lnfoMemoDesign gl.doc
2009 Annual Neighborhood
Drainage Program Map
~
10
CONSULTANT AGREEMENT FOR
DRAINAGE DESIGN SERVICES
TIllS AGREElVIENT is entered into between the City of Tukwila, Washington, herein-after referred
to as "the City", and KPG, Inc., hereinafter referred to as "the Consultant", in consideration of the
mutual benefits, terms, and conditions hereinafter specified.
1. Project Designation. The Consultant is retained by the City to perform drainage design
services in connection with the project titled 2009 Annual Neighborhood Drainage Program.
2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit "A"
attached hereto, including the provision of all labor, materials, equipment and supplies.
3. Time for Performance. Work under this contract shall commence upon the giving of written
notice by the City to the Consultant to proceed. The Consultant shall perform all services and
provide all work product required pursuant to this Agreement within 365 calendar days from
the date written notice is given to proceed, unless an extension of such time is granted in
writing by the City.
4. Payment. The Consultant shall be paid by the City for completed work and for services
rendered under this Agreement as follows:
A. Payment for the work provided by the Consultant shall be made as provided on Exhibit
"BIl attached hereto, provided that the total amount of payment to the Consultant shall not
exceed $58,584.86 without express written modification of the Agreement signed by the
City.
B. The Consultant may submit vouchers to the City once per month during the progress of
the work for partial payment for that portion of the project completed to date. Such
vouchers will be checked by the City and, upon approval thereof, payment shall be made
to the Consultant in the amount approved.
C. Final payment of any balance due the Consultant of the total contract price earned will be
made promptly upon its ascertainment and verification by the City after the completion of
the work under this Agreement and its acceptance by the City.
D. Payment is provided in this section shall be full compensation for work performed,
services rendered, and for all materials, supplies, equipment and incidentals necessary to
complete the work.
E. The Consultant's records and accounts pertaining to this Agreement are to be kept
available for inspection by representatives of the City and state for a period of three (3)
years after final payments. Copies shall be made available upon request.
5. Ownership and Use of Documents. All documents, drawings, specifications and other
materials produced by the Consultant in connection with the services rendered under this
Agreement shall be the property of the City whether the project for which they are made is
executed or not. The Consultant shall be permitted to retain copies, including reproducible
copies, of drawings and specifications for information, reference and use in connection with
the Consultant's endeavors. The Consultant shall not be responsible for any use of the said
documents, drawings, specifications or other materials by the City on any project other than
the project specified in this Agreement.
6. Compliance with Laws. The Consultant shall, in performing the services contemplated by
this Agreement, faithfully observe and comply with all federal, state, and local laws,
ordinances and regulations, applicable to the services to be rendered under this Agreement.
7. Indemnification. The Consultant shall indemnify, defend and hold harmless 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 act, omission or failure of the Consultant, its officers, agents and
employees, in performing the work required by this Agreement. With respect to the perform-
ance of this Agreement and as to claims against the City, its officers, agents and employees,
the Consultant 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, defend and hold harmless provided for in this paragraph extends to
any-claim brought by or on behalf of any employee of the Consultant. This waiver is mutually
negotiated by the parties. This paragraph shall not apply to any damage resulting from the
sole negligence 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, defend and hold harmless is valid
and enforceable only to the extent of the negligence of the Consultant, its officers, agents and
employees.
8. Insurance. The Consultant 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.
Said general liability policy shall name the City of Tukwila as an additional named insured
and shall include a provision prohibiting cancellation of said policy except upon thirty (30)
days prior written notice to the City. Certificates of coverage as required by this section shall
be delivered to the City within fifteen (15) days of execution of this Agreement.
9. Independent Contractor. The Consultant and the City agree that the Consultant is an inde-
pendent contractor with respect to the services provided pursuant to this Agreement. Nothing
in this Agreement shall be considered to create the relationship of employer and employee
between the parties hereto. Neither the Consultant nor any employee of the Consultant shall
be entitled to any benefits accorded City employees by virtue of the services provided under
this Agreement. The City shall not be responsible for withholding or otherwise deducting
federal income tax or social security or for contributing to the state industrial insurance
program, otherwise assuming the duties of an employer with respect to the Consultant, or any
employee of the Consultant.
10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or
retained any company or person, other than a bonafide employee working solely for the
Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any
company or person, other than a bonafide employee working solely for the Consultant, any
fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon
or resulting from the award or making of this contract. For breach or violation ofthis warrant,
the City shall have the right to annul this contract without liability, or in its discretion to
deduct from the contract price or consideration, or otherwise recover, the full amount of such
fee, commission, percentage, brokerage fee, gift, or contingent fee.
11. Discrimination Prohibited. The Consultant, with regard to the work performed by it under
this Agreement, will not discriminate on the grounds of race, 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.
12. Assignment. The Consultant shall not sublet or assign any of the services covered by this
Agreement without the express written consent of the City.
13. Non-Waiver. Waiver by the City of any provision of this Agreement or any time limitation
provided for in this Agreement shall not constitute a waiver of any other provision.
14. Termination.
A. The City reserves the right to terminate this Agreement at any time by giving ten (10)
days written notice to the Consultant.
B. In the event of the death of a member, partner or officer of the Consultant, or any of its
supervisory personnel assigned to the project, the surviving members of the Consultant
hereby agree to complete the work under the terms of this Agreement, if requested to do
so by the City. This section shall not be a bar to renegotiations of this Agreement
between surviving members of the Consultant and the City, if the City so chooses.
15. Attorneys Fees and Costs. In the event either party shall bring suit against the other to
enforce any provision of this Agreement, the prevailing party in such suit shall be entitled to
recover its costs, including reasonable attorney's fees, incurred in such suit from the losing
party.
1'<
.LV.
Notices. Notices to the City of Tukwila shall be sent to the following address:
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Notices to Consultant shall be sent to the following address:
KPG, Inc.
753 - 9th Avenue N.
Seattle, WA 98109
17. Integrated Agreement. This Agreement, together with attachments or addenda, represents
the entire and integrated Agreement between the City and the Consultant and supersedes all
prior negotiations, representations, or agreements written or oral. This Agreement may be
amended only by written instrument signed by both the City and the Consultant.
DATED this
day of
,2009
Jim Haggerton, Mayor
CONSULTANT
.~~
By: .
Nelson Da is, 'G
CITY OF TUKWILA
Principal
Title:
Attest! Authenticated:
Approved as to Form:
Christy O'Flaherty, CMC, City Clerk
Office of the City Attorney
Exhibit A
City of Tukwila
2009 Annual Small Drainage Program
Scope of Work
January 19, 2009
KPG
The Consultant shall prepare surveyed base maps, final plans, specifications, and
estimates for the following small drainage projects:
. Site 1: Southgate Creek in vicinity of S. 133rd/131st and 44th Avenue S.
This project includes the following 3 areas of concern:
a. S 13:fd Street Culvert Crossing - Replace with fish passable
culvert.
b. S 131st Street near Normed - Replace undersized clay culvert
crossing with fish passable culvert.
c. S 131st and 44th Avenue S - Replace roadway and driveway
culvert crossings with fish passable culvert.
. Site 2: S 146th Street, 42nd Avenue to west approximately 500'
Install new 1B-inch storm drain, catch basins, and laterals to relieve
flooding issues near trailer park due to undersized pipe.
. Site 3: West Marginal Way Outfall
Replace failing outfall and portion of storm drain pipe to eliminate a sink
hole in adjacent driveway. Additional sink hole areas have formed during
the December 200B/January 2009 storms. 60% design was completed as
part of the 2004 small drainage program. Design will be updated and
finalized basedon current conditions.
Work on these projects shall include any necessary survey, alternative analyses,
quantity estimating and cost estimating to complete the projects. Surveyed base maps
and horizontal utility locations will be provided for all projects. Previous mapping from
the 2004 Annual Small Drainage Program will be used for the project base map on site
3. Project horizontal and vertical datum's will be assumed on all projects.
The Consultant shall prepare a SEPA checklist, JARPA application, and provide
coordination with Washington Department of Fish and Wildlife for Sites 1, 2, and 3:
It is our understanding that none of the projects will require biological assessments,
additional permits, detention facilities, or water quality treatment facilities. The budget
assumes a straightforward approval process with no special studies or extensive
coordination.
City of Tukwila
2009 Annual Small Drainage Program
1 of 2
KPG
January 19, 2009
Exhibit A
A potholing allowance of $5,000 is included in the estimated fee to determine existing
subsurface utility elevations in key locations that are identified during base mapping and
preliminary design.
It is anticipated that the projects will be bid as one package for the 2009 Small Drainage
Program. The Consultant shall perform base mapping, permit agency coordination,
utility coordination, and preliminary design and cost estimating for each of the project
sites to assist the City with prioritization for the bid package. Projects will be prioritized
based on available budget and other factors (such as permit complexity, utility
relocation needs, easements, etc.) to achieve a realistic schedule and project listing for
the 2009 Small Drainage Program.
For the 2009 Small Drainage Program, the Consultant shall submit 50% (plans and
estimate only) and 90% plan, specification, and estimate submittals for City review prior
to bidding. The City may reprioritize the projects based on estimated costs and
available budget.
Deliverables:
The Consultant shall provide the following deliverables:
. SEPA checklist for work on sites 1, 2, and 3.
. JARPA application for sites 1, 2, and 3 HPA
. Distribution of 50% Plans to utilities
2009 Small Drainage Program:
. 10 copies, 50% Plans and Estimates
. 5 copies, 90% Plans, Specifications and Estimates
. Full size mylar copy of Final Plans
. 10 copies, ~ size Final Plans (Bond)
. 10 copies, Final Specifications
. 1 copy, Final Engineers Estimate
. Coordination and upload to BXWA.com
The City shall provide the following items:
. Property owner contact information
. Existing utility information, as available
. Plan reviews and comments
. Easement negotiations, if required.
. Fees associated with advertisement on BXWA.com
City of Tukwila
2009 Annual Small Drainage Program
2of2
KPG
January 19, 2009
HOUR AND FEE ESTIMATE EXHIBIT B
Project: City of Tukwila
2009 Annual Small Drainage Program
Task
Description
Task 1 2009 Small Drainage Program
1.1 Management /Coordination /Administration
1.2 Topographic survey utility locates potholes
1.3 Field reviews
1.4 Prepare Plans (estimate 20 sheets)
S 133rd Street culvert crossing
S 131st Street /Nonmed culvert crossing
S 131st Street 44th Avenue S culvert crossings
S 146th Street Drainage Improvements
W Marginal Way Ouffall
Prepare Detail Sheets
Prepare restoration plans for sensitive area sites
1.5 Property owner coordination
1.6 2009 Small Drainage Program
Prepare 50% 90% Review Submittals
Utility coordination
Quantity and Cost Estimating
Prepare Specifications
Finalize Bid Documents
Reimbursable expenses see breakdown for details
Task Totals
Labor Hour Estimate
Project Project Survey
Manager Engineer Field Crew Technician Clerical
177.45 113.57 140.00 94.34 69.01
4
2
4
2
2
2
1
1
1
1
2
0
4
2
2
2
1/19/2009
0
8
8
8
16
16
16
'8
8
8
8
8
8
8
8
4
0
40
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
40
4
8
24
24
24
8
8
24
0
8
0
8
0
8
32 140 I 40 1 188 1
P
Architecture
Landscape Architecture
Civil Engineering
8
O
0
O
0
0
0
0
O
O
0
4
2
0
4
4
22 1
Total Fee
Fee
1,261.88
10,637.06
1,995.72
2,018.18
4,436.18
4,436.18
4,258.73
1,840.73
1,840.73
3,350.17
1,263.46
1,939.32
1,756.38
2,018.18
1,539.50
1,839.94
6,250.00
52,682.34
HOUR AND FEE ESTIMATE
Project City of Tukwila a Program
2009 Annual Small Drainage
EXHIBIT B
Labor Hour Estimate
Total Fee
Project Project Survey
Manager Engineer Field Crew Technician C1 Clerical 11 Fee
177.45 113.57 140.00 94.34
Task
2.1 Prepare SEPA checklist (1 checklist for 3 sites) 8 4 2,294.22
i 2 8 0 2 2,156.20
Task 2- Permitting f 2 8 0 8 1,302.10
0 0 2 �1
2.2 Prepare JARPA applications (1 a2plication for 3 sites) 4 I 4
I
Total Estimated Fee: 5,90215000 2
.5
2.3 Field review /coordinate with WNW 8 I 20 0 I 16
Reimbursable expenses see breakdown for details
Task Totals 58,584.8
Reimbursable Breakdown 250.00
Task 1 2009 Small Drainage Program
APS Potholing allowance 1,000.00
Mileage 5,000.00
Reproduction 6 250.00
Task 1 Total
50.00
100.00
Task 2 Permitting 150.00
Mileage
Reproduction Task 2 Total
1/19/2009
K.F" G
Architecture
Landscape Architecture
Civil Engineering
Cost