HomeMy WebLinkAbout2016.06.20 Council Meeting PacketPage
6-11
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Regular Meeting
1. CALL TO ORDER:
2. ROLL CALL:
AGENDA
PASCO CITY COUNCIL
7:00 p.m.
(a) Pledge of Allegiance
June 20, 2016
3. CONSENT AGENDA: All items listed under the Consent Agenda are considered
to be routine by the City Council and will be enacted by roll call vote as one motion
(in the form listed below). There will be no separate discussion of these items. If
further discussion is desired by Council members or the public, the item may be
removed from the Consent Agenda to the Regular Agenda and considered
separately.
(a) Approval of Minutes
To approve the Minutes of the Pasco City Council Meeting dated June 6,
2016 and the Minutes of the Pasco City Council Special Meeting dated June
11, 2016.
(b) Bills and Communications
To approve claims in the total amount of $4,193,488.77 ($1,751,562.24 in
Check Nos. 210222-210481; $503,356.55 in Electronic Transfer Nos.
810836, 810839-810841, 810972, 810973-810977; $44,386.16 in Check
Nos. 49295-49343; $592,956.11 in Electronic Transfer Nos. 30095291-
30095770; $1,301,227.71 in Electronic Transfer Nos. 252-262, 264-267).
To approve bad debt write-off for Utility Billing, Ambulance, Cemetery,
General Accounts, Miscellaneous Accounts, and Municipal Court (non-
criminal, criminal, and parking) accounts receivable in the total amount of
$217,120.37 and, of that amount, authorize $136,952.35 be turned over for
collection.
(c) Lease of Real Property - Port of Pasco
To approve the Reserve Center Lease with the Port and, further, authorize
the City Manager to execute the agreement.
(d) Columbia Raw Water Supply — Professional Services Agreement
Amendment No. 3 - Murray, Smith and Associates
Page 1 of 226
52-56
57-61
62
MI]WOVE
Regular Meeting
June 20, 2016
To approve Amendment Number 3 to the Professional Services Agreement
for Design Revisions and Limited Construction Management and Inspection
Services for the Columbia Raw Water Supply project with Murray Smith
and Associates, Inc., and further, authorize the City Manager to execute the
agreement.
(e) * Final Plat: Majestia Place (MF# FP 2016-005)
To approve the Final Plat for Majestia Place.
(f) Naming of New Parks
To approve Resolution No. 3714, approving the names of "Mariposa Park"
for the new City Park located adjacent to Barbara McClintock Elementary
School and "Tierra Vida Park" for the new City Park located at the Tierra
Vida development.
(RC) MOTION: I move to approve the Consent Agenda as read.
4. PROCLAMATIONS AND ACKNOWLEDGEMENTS:
(a) Special Recognition - Pasco High School Student, Carson Bergstrom,
recipient of an AWC Center for Quality Communities Scholarship
5. VISITORS - OTHER THAN AGENDA ITEMS: This item is provided to allow
citizens the opportunity to bring items to the attention of the City Council or to
express an opinion on an issue. Its purpose is not to provide a venue for debate or
for the posing of questions with the expectation of an immediate response. Some
questions require consideration by Council over time and after a deliberative
process with input from a number of different sources; some questions are best
directed to staff members who have access to specific information. Citizen
comments will normally be limited to three minutes each by the Mayor. Those with
lengthy messages are invited to summarize their comments and/or submit written
information for consideration by the Council outside of formal meetings.
6. REPORTS FROM COMMITTEES AND/OR OFFICERS:
(a) Verbal Reports from Councilmembers
(b) General Fund Operating Statement Through May 2016
7. HEARINGS AND COUNCIL ACTION ON ORDINANCES AND
RESOLUTIONS RELATING THERETO:
(a) Street & Easement Vacation: Street Right -of -Way and Street Easement
between Rd 92 and Rd 96 (MF# VAC 2016-007)
Page 2 of 226
Regular Meeting June 20, 2016
CONDUCT PUBLIC HEARING
MOTION: I move to adopt Ordinance No. 4297, an Ordinance vacating
right-of-way and easements associated with the undeveloped portion of
Franklin Road between Road 92 and Road 96 and, further, authorize
publication by summary only.
70-76 (b) Six-year Transportation Improvement Plan 2017-2022
CONDUCT PUBLIC HEARING
MOTION: I move to approve Resolution No. 3715, adopting the revised
and extended Comprehensive Street, Storm Drain and Bridge Programs for
the City of Pasco.
8. ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS:
77- 120 (a) PMC Title 15 (Telecommunications) Amendment
MOTION: I move to adopt Ordinance No. 4298, amending Sections
15.10.020 "Definitions", and Section 15.80.020 "Application and Review
Fee"; Creating Section 15.40.030 "Cable Franchise", and Creating Chapter
15.95 "Cable Systems and Open Video Systems" regulating the occupancy
and use of Public Rights -of -Way by Cable systems and open video systems,
providing for establishment of customer service standards; establishing
franchise and licensing requirements for operators of such systems and
prescribing minimum charges, terms, and conditions for and upon the
construction, maintenance, and repair of such systems and, further authorize
publication by summary only.
121-162 (b) Charter Cable Franchise Renewal
MOTION: I move to adopt Ordinance No. 4299, granting a Cable
Communications System Franchise to Falcon Video Communications, L.P.,
locally known as Charter Communications and, further, authorize
publication by summary only.
163-168 (c) Ordinance Requiring Sewer Lift Station for Genesis Business Park
Development
MOTION: I move to adopt Ordinance No. 4300 requiring the construction
of a sewer system lift station as a prerequisite for the further development of
the Genesis Business Park and, further, authorize publication by summary
only.
169-182 (d) Client -Present Home Occupations (MF# CA 2015-007)
Page 3 of 226
183 - 190
191 -203
204-226
Regular Meeting
June 20, 2016
MOTION: I move to adopt Ordinance No. 4301, an Ordinance of the City
of Pasco, Washington amending PMC Chapter 25.66 entitled "Home
Occupations", and, further, authorize publication by summary only.
(e) Powerline Road Rename (MF# ORD 2015-002)
MOTION: I move to adopt Ordinance No. 4302, an Ordinance renaming
Power Line Road to Burns Road, and, further, authorize publication by
summary only.
(f) i Annexation: Barker Annexation (MF# ANX 2016-002)
MOTION: I move to approve Resolution No. 3716, accepting a Notice of
Intent to commence annexation proceedings for the Barker Annexation Area
and providing a determination on the boundary to be annexed and whether
simultaneous zoning and the assumption of bonded indebtedness will be
required.
9. UNFINISHED BUSINESS:
10. NEW BUSINESS:
(a) i Sale of Surplus Property for Columbia Basin College Student Housing
MOTION: I move to approve the Purchase and Sale Agreement with CBC
Student Housing LLC for approximately 4.75 acres on Argent Road, east of
20th Avenue and, further, to authorize the City Manager to execute the
Agreement.
11. MISCELLANEOUS DISCUSSION:
12. EXECUTIVE SESSION:
13. ADJOURNMENT.
(RC) Roll Call Vote Required
* Item not previously discussed
Q Quasi -Judicial Matter
M F# "Master File #......
REMINDERS:
11:00 a.m., Saturday, June 18, Highland Park — Juneteenth Annual Parade. (MAYOR
Page 4 of 226
Regular Meeting
June 20, 2016
MATT WATKINS and COUNCILMEMBER REBECCA FRANCIK)
6:00 p.m., Monday, June 20, City Hall Conference Room #1 — LEOFF Disability
Board Meeting. (MAYOR MATT WATKINS and COUNCILMEMBER REBECCA
FRANCIK)
7:30 a.m., Wednesday, June 22, 7130 W. Grandridge Blvd — Visit Tri -Cities Board
Meeting. (COUNCILMEMBER MIKE GARRISON, Rep.; TOM LARSEN, Alt.)
4:00 p.m., Wednesday, June 22, 7130 W. Grandridge Blvd — Manhattan Project
National Historical Park Advocacy Committee Meeting. (MAYOR MATT
WATKINS)
4:00 p.m., Thursday, June 23, 7130 W. Grandridge Blvd — TRIDEC Board Meeting.
(COUNCILMEMBER MIKE GARRISON, Rep.; TOM LARSEN, Alt.)
This meeting is broadcast live on PSC -TV Channel 191 on Charter Cable and streamed
at www.pasco-wa.gov/psctvlive.
Audio equipment available for the hearing impaired; contact the Clerk for assistance.
Page 5 of 226
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Rick Terway, Director
Administrative & Community Services
SUBJECT: Approval of Minutes
I. REFERENCE(S):
Minutes 06.06.16
Minutes 06.11.16
June 8, 2016
Regular Meeting: 6/20/16
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve the Minutes of the Pasco City Council Meeting dated June 6, 2016 and the
Minutes of the Pasco City Council Special Meeting dated June 11, 2016.
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
Page 6 of 226
MINUTES
REGULAR MEETING PASCO CITY COUNCIL JUNE 6, 2016
CALL TO ORDER:
The meeting was called to order at 7:00 p.m. by Matt Watkins, Mayor.
ROLL CALL:
Councilmembers present: Rebecca Francik, Mike Garrison, Robert Hoffmann,
Tom Larsen, Saul Martinez, Matt Watkins and Al Yenney.
Staff present: Dave Zabell, City Manager; Stan Strebel, Deputy City Manager;
Leland Kerr, City Attorney; Richard Terway, Administrative & Community
Services Director; Rick White, Community & Economic Development
Director; Ahmad Qayoumi, Public Works Director and Ken Roske, Police
Captain.
The meeting was opened with the Pledge of Allegiance.
CONSENT AGENDA:
Approval of Minutes
To approve the Minutes of the Pasco City Council Meeting dated May 16,
2016.
Bills and Communications
To approve claims in the total amount of $5,288,404.71 ($2,290,016.65 in
Check Nos. 209884-210221; $1,663,629.03 in Electronic Transfer Nos.
810181-810246, 810262-810306, 810312-810388, 810391-810392, 810394-
810758; $91,545.39 in Check Nos. 49205-49294; $1,239,991.75 in Electronic
Transfer Nos. 30094320-30095290; $3,221.89 in Electronic Transfer Nos. 250-
251).
Increased CIP Spending Authority for the Primary Clarifier Upgrade
Project
To approve the increased CIP spending authority for the Primary Clarifier
Upgrade Project and allocate the funds in the 2013/2015 bond for water and
sewer.
Amendment Number 1 to the Professional Services Agreement for the
Construction Management and Inspection Services for the Primary
Clarifier Upgrade Project
To approve Amendment Number 1 to the Professional Services Agreement for
the Construction Management and Inspection Services for the Primary Clarifier
Upgrade Project with Gray & Osborne, Inc. and further, authorize the City
Manager to execute the agreement.
Amendment Number 1 to the Professional Services Agreement for the
Wastewater System Impact Assessment - Phase I
To approve Amendment Number 1 to the Professional Services Agreement for
the Wastewater System Impact Assessment - Phase I with MSA and further,
authorize the City Manager to execute the agreement.
Page 1 of 4 Page 7 of 226
MINUTES
REGULAR MEETING PASCO CITY COUNCIL JUNE 6, 2016
TRAC Advisory Board Appointment
To concur in the Mayor's reappointment of Carl Leth to a three-year term on the
TRAC Advisory Board (term to expire July 1, 2019).
Final Plat: Willow Vista (MF# FP 2016-006)
To approve the Final Plat for Willow Vista.
Annexation: Barker Annexation (MF# ANX 2016-002)
To set 7:00 pm, June 20, 2016 as the time and date for a public meeting to
consider the Barker Notice of Intent to annex 119 acres located west of
Broadmoor Boulevard and north of Power Line Road.
Street Vacation: A portion of Duluth St. (MF# VAC 2016-008)
To approve Resolution No. 3713, a resolution setting 7:00 P.M., Tuesday, July
5, 2016, as the time and date to conduct a public hearing to consider vacating a
portion of Duluth Street.
MOTION: Ms. Francik moved to approve the Consent Agenda as read. Mr.
Garrison seconded. Motion carried by unanimous Roll Call vote.
PROCLAMATIONS AND ACKNOWLEDGEMENTS:
Yard and Business of the Month Awards
Mayor Watkins presented Certificates of Appreciation for May 2016 "Yard of
the Month" and "Business Appearance of the Month" to:
Juan & Mariana Garcia, 3713 Milagro Dr.
George & Janice Hunter, 204 Sun Willows Blvd.
Kaleb & Brittany Harvey, 6009 Stutz Ln.
Bill & Sarah Gallacher, 3604 Riesling Ct.
Bagley Dental, 4904 Convention Dr.
VISITORS - OTHER THAN AGENDA ITEMS:
Gabriel Portugal, 804 Rd. 52, inquired whether the City has been in contact
with the Department of Justice this year and inquired on the progress of
implementing district based elections.
REPORTS FROM COMMITTEES AND/OR OFFICERS:
Mr. Martinez reported on the Park and Recreation Advisory Board meeting.
Mr. Garrison reported he attended the TRIDEC Board of Directors meeting and
Mr. Larsen, as his alternate, attended the Visit Tri -Cities Board meeting.
Mr. Hoffmann reported on the Franklin County Mosquito Control District
Board Meeting.
Mr. Larsen attended the Emergency Medical Services Board Meeting.
Ms. Francik commented on a letter in the Tri City Herald complementing Pasco
on its bike path signage.
Page 2 of 4 Page 8 of 226
MINUTES
REGULAR MEETING PASCO CITY COUNCIL JUNE 6, 2016
HEARINGS AND COUNCIL ACTION ON ORDINANCES AND RESOLUTIONS
RELATING THERETO:
Police Body Cameras
Mayor Watkins declared the Public Hearing open to consider the proposed
ordinance.
Leo Perales, Kennewick, commented on the proposed operational policies
and would like them discussed in community forums before implementing.
Council and staff discussed the details of the proposed ordinance.
Following three calls for comments, Mayor Watkins declared the Public
Hearing closed.
MOTION: Ms. Francik moved to adopt Ordinance No. 4294, authorizing the
use of Body -Worn Cameras for Law Enforcement Personnel and, further,
authorize publication by summary only. Mr. Yenney seconded. Motion carried
unanimously.
ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS:
PMC Amendment Setting Penalties for Parking Violations
MOTION: Ms. Francik moved to adopt Ordinance No. 4295, amending PMC
Chapter 10.16.135 "Penalty Provisions" and Chapter 10.52.035 "Extended
Unauthorized Parking Prohibited" to establish penalties for violations thereof
and, further, authorize publication by summary only. Mr. Garrison seconded.
Motion carried unanimously.
2015 International and State Code Updates
MOTION: Ms. Francik moved to adopt Ordinance 4296, an ordinance
amending Title 16 of the Pasco Municipal Code regarding the adoption of the
Washington State Building Code and the International and Uniform Building
Codes and, further, authorize publication by summary only. Mr. Garrison
seconded. Motion carried unanimously.
NEW BUSINESS:
Collective Bargaining Agreement with International Union of Operating
Engineers, Local 280
Mr. Zabell explained the details of the proposed agreement.
MOTION: Ms. Francik moved to approve the Collective Bargaining
Agreement with the International Union of Operating Engineers, Local 280, for
years 2016-2019 and, further, authorize the City Manager to execute the
agreement. Mr. Yenney seconded. Motion carried unanimously.
MISCELLANEOUS DISCUSSION:
Mr. Terway updated Council on the progress of the tree removal and
replacement project in the downtown area.
Page 3 of 4 Page 9 of 226
MINUTES
REGULAR MEETING PASCO CITY COUNCIL JUNE 6, 2016
Mr. Zabell noted a Ribbon Cutting Ceremony for the new City park at Road 60
and Three Rivers Drive will take place at Noon on Saturday, June 11.
EXECUTIVE SESSION:
Council adjourned to Executive Session at 8:00 p.m. for approximately 45
minutes to establish sales price or lease amount of real estate and discuss
litigation or potential litigation with the City Manager, Deputy City Manager
and the City Attorney.
Mayor Watkins called the meeting back to order at 8:45 p.m.
ADJOURNMENT:
There being no further business, the meeting was adjourned at 8:45 p.m.
APPROVED:
Matt Watkins, Mayor
ATTEST:
Debra Clark, City Clerk
PASSED and APPROVED this 20th day of June, 2016
Page 4 of 4 Page 10 of 226
MINUTES
SPECIAL MEETING PASCO CITY COUNCIL JUNE 11, 2016
CALL TO ORDER:
The meeting was called to order at 8:00 a.m. by Matt Watkins, Mayor.
ROLL CALL:
Councilmembers present: Rebecca Francik, Mike Garrison, Robert Hofftnann,
Saul Martinez, Matt Watkins and Al Yenney. Excused: Tom Larsen.
Staff present: Dave Zabell, City Manager.
EXECUTIVE SESSION:
Council adjourned to Executive Session at 8:01 a.m. for approximately 2 hours
to discuss the performance of a public official.
Mayor Watkins called the meeting back to order at 10:42 a.m.
ADJOURNMENT:
There being no further business, the meeting was adjourned at 10:42 a.m.
APPROVED:
Matt Watkins, Mayor
ATTEST:
Debra Clark, City Clerk
PASSED and APPROVED this 20th day of June, 2016
Page 1 of 1 Page 11 of 226
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Ron Musson, Interim Finance Manager
Administrative & Community Services
SUBJECT: Bills and Communications
I. REFERENCE(S):
Accounts Payable 06.20.16
Bad Debt Write-off/Collection 05.31.16
June 16, 2016
Regular Meeting: 6/20/16
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve claims in the total amount of $4,193,488.77 ($1,751,562.24 in Check Nos.
210222-210481; $503,356.55 in Electronic Transfer Nos. 810836, 810839-810841,
810972, 810973-810977; $44,386.16 in Check Nos. 49295-49343; $592,956.11 in
Electronic Transfer Nos. 30095291-30095770; $1,301,227.71 in Electronic Transfer
Nos. 252-262, 264-267).
To approve bad debt write-off for Utility Billing, Ambulance, Cemetery, General
Accounts, Miscellaneous Accounts, and Municipal Court (non -criminal, criminal, and
parking) accounts receivable in the total amount of $217,120.37 and, of that amount,
authorize $136,952.35 be turned over for collection.
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
Page 12 of 226
CITY OF PASCO
Council Meeting of: June 20, 2016
Accounts Payable Approved
The City Council
City of Pasco, Franklin County, Washington
We, the undersigned, do hereby certify under penalty of perjury the materials have been furnished, the services rendered or the labor performed as described
herein and the claim is a just, due and unpaid obligation against the city and we are authorized to authenticate and certify to such claim.
Dave Zabell, City Manager Rick Terway, A&CS Director
We, the undersigned City Councilmembers of the City Council of the City of Pasco, Franklin County, Washington, do hereby certify on this
20th day of June, 2016 that the merchandise or services hereinafter specified have been received and are approved for payment:
Claims Bank Payroll Bank Gen'I Bank Electronic Bank Combined
Check Numbers 210222-210481 49295-49343
Total Check Amount $1,751,562.24 $44,386.16 Total Checks $ 1,795,948.40
Electronic Transfer Numbers 810836 30095291-30095770 252-262 N/A
810839-810841 264-267
810972
810973-810977
Total EFT Amount $503,356.55 $592,956.11 $1,301,227.71 $0.00
Total EFTS $ 2,397,540.37
Grand Total $ 4,193,488.77
Councilmember
Councilmember
SUMMARY OF CLAIMS BY FUND:
GENERAL FUND
597,886.88
STREET
6,495.95
ARTERIAL STREET
0.00
STREET OVERLAY
0.00
C.D. BLOCK GRANT
66.47
HOME CONSORTIUM GRANT
12,674.55
NSP GRANT
1,928.04
MARTIN LUTHER KING COMMUNITY CENTER
1,462.74
AMBULANCE SERVICE
4,212.22
CEMETERY
6,283.91
ATHLETIC PROGRAMS
0.00
GOLF COURSE
83,164.68
SENIOR CENTER OPERATING
5,143.61
MULTI -MODAL FACILITY
1,714.92
SCHOOL IMPACT FEES
158,274.00
RIVERSHORE TRAIL & MARINA MAIN
793.50
SPECIAL ASSESSMENT LODGING
0.00
LITTER ABATEMENT
1,240.28
REVOLVING ABATEMENT
5,089.95
TRAC DEVELOPMENT & OPERATING
41,673.00
PARKS
0.00
ECONOMIC DEVELOPMENT
17,491.22
STADIUM/CONVENTION CENTER
0.00
LID
0.00
GENERAL CAP PROJECT CONSTRUCTION
217,655.22
UTILITY, WATER/SEWER
1,782,516.97
EQUIPMENT RENTAL - OPERATING GOVERNMENTAL
36,894.36
EQUIPMENT RENTAL - OPERATING BUSINESS
10,750.02
EQUIPMENT RENTAL - REPLACEMENT GOVERNMENTAL
74,578.71
EQUIPMENT RENTAL - REPLACEMENT BUSINESS
28,447.77
MEDICAL/DENTAL INSURANCE
46,832.13
FLEX
4,662.31
PAYROLL CLEARING
1,045,555.36
GRAND TOTAL ALL FUNDS:
$ 4,193,488.77
Page 13 of 226
BAD DEBT WRITE-OFF/COLLECTION
Matey 31, 2016
1. UTILITY BILLING - These are all inactive accounts, 60 days or older. Direct write-off are
under $10 with no current forwarding address, or are accounts in "occupant" status. Accounts
submitted for collection exceed $10.00.
2. AMBULANCE - These are all delinquent accounts over 90 days past due or statements are
returned with no forwarding address. Those submitted for collection exceed $10.00. Direct
write off including DSHS and Medicare customers; the law requires that the City accept
assignment in these cases.
3. COURT ACCOUNTS RECEIVABLE - These are all delinquent non -criminal and criminal
fines, and parking violations over 30 days past due.
4. CODE ENFORCEMENT — LIENS - These are Code Enforcement violation penalties which
are either un -collectable or have been assigned for collections because the property owner
has not complied or paid the fine. There are still liens in place on these amounts which will
continue to be in effect until the property is brought into compliance and the debt associated
with these liens are paid.
5. CEMETERY - These are delinquent accounts over 120 days past due or statements are
returned with no forwarding address. Those submitted for collection exceed $10.00.
6. GENERAL - These are delinquent accounts over 120 days past due or statements are
returned with no forwarding address. Those submitted for collection exceed $10.00.
7. MISCELLANEOUS - These are delinquent accounts over 120 days past due or statements
are returned with no forwarding address. Those submitted for collection exceed $10.00.
Page 14 of 226
Direct
Referred to
Total
Write-off
Collection
Write-off
Utility Billing
$
406.80
829.54
1,236.34
Ambulance
$
79,761.22
8,092.81
87,854.03
Court A/R
$
.00
111,998.00
111,998.00
Code Enforcement
$
.00
16,032.00
16,032.00
Cemetery
$
.00
0.00
.00
General
$
.00
.00
.00
Miscellaneous
$
.00
.00
.00
TOTAL:
$
80,168.02
136,952.35
217,120.37
Page 14 of 226
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Bob Gear, Fire Chief
Fire Department
SUBJECT: Reserve Center Lease with the Port
I. REFERENCE(S):
June 14, 2016
Regular Meeting: 6/20/16
Proposed Lease Agreement between the City and Port of Pasco
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve the Reserve Center Lease with the Port, and further,
authorize the City Manager to execute the agreement.
III. FISCAL IMPACT:
Approximately $67,000 annual lease payment
Approximately $20,000 in furnishings and network improvements
Total Estimated 2016 Cost: $53,500
Anticipated revenues of approximately $20,000 from Franklin County Emergency
Management
Anticipated revenues of $12,000 Irrigation Utility
Net 2016 cost to the General Fund of approximately $21,500
The Port of Pasco has acquired the 16,833 square foot former Army Reserve building
located at 1011 E. Ainsworth from the federal government. The City has identified the
immediate need for administrative spaces within the Fire department and operations
space within the Public Works department. Independently, Franklin County Emergency
Management has been evaluating the need to locate to a more suitable location. City
and Emergency Management staffs have partnered to discuss the lease of the building
from the Port to provide needed space for the aforementioned uses. The City Manager
tasked Fire Chief Gear to first explore options, conduct a feasibility analysis and lead
Page 15 of 226
the effort to negotiate the proposed lease.
V. DISCUSSION:
Fire Department: The administrative office in the fire department headquarters were
constructed to house three people in offices and a receptionist area. Since construction
of the station the fire administrative staff has grown from three to five positions using
three offices and added an ambulance billing clerk into the area occupied by the
receptionist. In addition, the department has initiated a program that allows firefighters
on short term disability to return to work in administrative roles to provide assistance
which while beneficial to the City and employee, further exacerbates the constraints on
space.
Due to increases in demands through growth and expansion of the City, shift staffing
has increased over the last three years resulting in more staff assigned to a shift than
there are beds available. As a result, at least two of the offices in the Oregon Ave
station need to be converted into bedrooms to provide adequate sleeping space for
assigned emergency staff.
Last fall staff pursued the option of installing a modular office on City -owned property
adjacent to the Oregon Ave Fire Station. It was determined that development costs far
exceeded the benefit of an on-site modular office. While a fourth fire station is being
planned for, its construction is currently unfunded and will likely be several years into
the future. The need for additional space is current. The spaces offered by the Port
provide the least expensive alternative available to address this matter, provides for the
greatest flexibility and creates a partnership opportunity that will lessen costs.
Franklin County Emergency Management (FCEM) - Currently housed in a World War
2 era building it leases from the Port which is located in the airport industrial area, the
FCEM facility is situated in the approach and departure pattern of the Tri -Cities airport
and across the street from the three "through" tracks and the switching yard for the
Burlington Northern Santa Fe railroad. Access and parking to the facility is limited
and could be entirely cut off in the event of a rail related incident on the rail facilities to
the east or an aviation related incident to the north and west. Logistics aside, the
current FCEM center is small for a large emergency and lacks space for overflow staff
in the event of a major activation of the center. A recent activation of the center
required deployment of staffing and resources at multiple locations. EM is aware of
the disadvantages of the current facility, but lacks resources to construct or purchase an
alternate facility or even lease on its own. The possibility of partnering with the City
provides FCEM a viable option to move to a more secure facility within the limits of
the resources they have available.
Public Works - The developed areas of the City's Public Works Shops located
immediately adjacent to the Port building are at capacity. As the City has grown, its
infrastructure has grown proportionately, requiring an increase on skilled staff and
Page 16 of 226
equipment. The cost of new facilities are currently not supported by rates or other
revenues, and fund balances of the various utilities are needed for planned system
improvements designed to benefit ratepayers. The Port building provides needed space
in which to relocate one of the departments operational divisions.
The Port building is of sufficient size to meet the mid-term needs of these three
interests through co -location. Aside from providing necessary space, the facility offers
significant additional benefits:
Co -location of Pasco Fire Administration with FCEM will significantly
enhance coordination and communications between two agencies that work
together frequently.
The facility offers sufficient space to develop an adequately sized Emergency
Operations Center (EOC) that will be capable of handling a major community
emergency as well as an adjoining classroom for training and overflow staffing.
In addition to the offices, classroom and Emergency Operations Center there is
a large well equipped kitchen and bathrooms with showers to support 24 hour
operation of the facility.
The facility also has a large indoor parking area which can be utilized by the
police department for inside storage of their specialty vehicles such a the
SWAT truck and crime scene processing van.
The offices and a former indoor gun range at the west end of the building are
proposed to be re -purposed for use by Public Works as office, crew space,
supply and equipment storage for one of its operational divisions.
The building is approximately 16,800 square feet. The space will be approximately
divided as follows:
Fire Department Administration (Offices) -1800 square feet.
Emergency Management -3000 square feet.
Public Works -2000 square feet.
Inside parking (fire & police)- 3500 square feet.
Common area: ( bathrooms, classroom, conference rooms etc.) 5500 square feet.
Note: Common areas lease will be split between all users.
As discussed above, the lease of the Port building will meet the near and mid-term
needs of the City and FCEM, some of which are critical; Fire Administration and
FCEM relocation. The colocation of multiple operations and interagency partnership
will allow these needs to be met in a cost-effective and affordable manner for the City
operations involved and FCEM.
Page 17 of 226
PORT OF PASCO
TERM BUILDING LEASE
LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
THIS LEASE AGREEMENT made this day of , 2016, by and between the PORT OF PASCO, a
municipal corporation organized and existing under the laws of the State of Washington, hereinafter referred to as "PORT" and
City of Pasco, a Washington municipality, hereinafter referred to as "Lessee".
WITNESSETH: THAT THE PARTIES DO HEREBY MUTUALLY AGREE AS FOLLOWS:
ARTICLE 1 * LEASED PREMISES
The Port hereby leases to the Lessee and the Lessee hereby hires from the Port the following described Premises situated in
Franklin County, State of Washington:
Approximately 16,833 square feet of Building OP1011 located at 1011 E Ainsworth Street plus 1.6 acres of
land surrounding the building.
hereinafter called the "PREMISES".
ARTICLE 2 • TERM
This lease shall be for a term of five (5) years, commencing June x, 2016 and ending May 31, 2021. Provided, whether or not
this lease is signed by both parties or not, this Lease shall not become effective until the Lessee has provided the Port with the
Bond or other security required by Article 6 and the proof of insurance as required by Article 17 of this Lease. Upon execution
of this Lease by both parties; and compliance by Lessee of the provisions described above, the Lease will be in effect, and shall
commence on the commencement date stated above in this Article 2.
ARTICLE 3 • OPTION TO RENEW RENTAL ADJUSTMENT
Provided, the Lessee is not in default in any provision of this Lease, the Lessee shall have, and it is hereby given and granted by
the Port, two (2) options to renew this lease for an additional term of five (5) years each according to all the terms, provisions,
covenants, and agreements in this lease contained, except the provisions specifying the rental to be paid by the Lessee to the
Port for the leased Premises. In the event the lease term, including any option period, shall extend the lease term beyond three
(3) years, or any successive multiple of three (3) year terms, the rental amount shall be subject to an increase as outlined in this
lease. This option shall be exercised automatically unless the Lessee gives the Port written notice of its intent to not extend the
term of this lease. Such written notice shall be mailed by certified mail not less than one hundred and eighty (180) days prior to
the date of which the lease would otherwise extend. Wherever in the lease agreement reference is made to "the term of this
lease", or words of like or similar import are used, they shall always be deemed and construed to include a renewal term of this
lease, unless the context clearly requires a contrary construction.
The Lessee intends to sublet a portion of the Premises to Franklin County Emergency Management. If the Lessee provides
notice that they will not extend the terms of this lease, Franklin County Emergency Management will have the option to enter
into their own lease with the Lessor by providing written notice to the Port of their intent. Such written notice shall be mailed
by certified mail not less than one hundred and eighty (180) days prior to the date of which the lease with the Lessee would
expire and a subsequent Lease with Franklin County Emergency Management will be entered into prior to the expiration of the
Lessee's lease.
ARTICLE 4 • RENT
Lessee agrees to pay as rental for the leased Premises the sum of FIVE THOUSAND FIVE HUNDRED EIGHTY-FIVE DOLLARS AND
76/100's ($5,585.76) per month. Lessee shall pay all leasehold taxes due and owing on all taxable rent consistent with RCW
Chapter 82.29A relating to leasehold excise tax, and any subsequent revision and amendments thereto. Taxable rent includes
contract rent which is the amount of consideration due as payment for a leasehold interest, including the total of cash
payments made to the Port, or to any other party for the benefit of the Port according to the requirements of the Lease
agreement, including, but not limited to: any payments paid by a sublessee; expenditures for the protection of the Port's
interest when required by the terms of the Lease or agreement; and expenditures for improvements to the property to the
extent that such improvements become the property of the Port. The rent for each month shall be paid to the Port in advance
on or before the first day of each and every month of the lease term and shall be payable at such place as the Port may
hereafter designate.
COP -TB -060116 - 1 -
Page 18 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
Lessee acknowledges that late payment by Lessee to Port of Rent or other sums due hereunder will cause Port to incur costs
not contemplated by this Lease, the exact amount of which would be extremely difficult and impractical to ascertain. Those
costs include, but are not limited to, processing expenses, accounting expenses, and legal fees. Therefore, in the event Lessee
fails to pay any installment of Rent or any other sum due hereunder within thirty (30) days after that amount is due, Lessee
shall pay to Port, as Additional Rent, a $100.00 late charge. Waiver of the late charge with respect to any installment or sum
will not be deemed to constitute a waiver with respect to any subsequent late charge, which may accrue. In the event any
amount so due is delinquent for a period in excess of thirty (30) days, Lessee shall pay Port an additional late charge, computed
at the rate of 1%% per month upon the total amount so overdue and for each day following its due date that the payment is
delinquent. Lessee shall pay Port a standard charge for each returned check based upon the amount banks are then charging.
Lessee shall also pay the sum of $100.00 for the service of any notice associated with a default of any kind by Lessee to
reimburse Port for the cost of the preparation and service of such notice.
ARTICLE 5 • RENT INCREASE
After the lease has run for the first three (3) years, or for any succeeding three (3) year period (s), any increased rental to be
paid by the Lessee and charged by the Port shall be determined as outlined in this section as the rental for each succeeding
three (3) year period. The nearest quarterly consumer price index (hereinafter called the Index) to the commencement date of
the initial term of this lease, or the commencement date of any current succeeding rental adjustment period, shall be the base
Index and it shall be based on the data of the Seattle, Washington Index for all items of the Bureau of Labor Statistics of the
United States Department of Labor. The quarterly Index issued nearest in point of time to the date at the end of the then
current rental period shall be the current Index. The current Index number shall be divided by the base Index number. From the
quotient thereof, there shall be subtracted the integer 1, and any resulting positive number shall be deemed to be the
percentage of increase in the cost of rent for the succeeding period. The rent being paid in the current rent period shall be
multiplied by the percentage increase to establish the rent increase which shall be added to the current rent to establish the
new rental for the next succeeding period. Provided further that any increase during such three year interval shall be limited
and shall be no more than fifteen percent (15%) over the rental determined at the previous three year determination.
The Port shall, within a reasonable time after obtaining the appropriate data necessary for computing such increase, give the
Lessee notice of any increase so determined, and the Port's computation thereof shall be conclusive and binding but shall not
preclude any adjustment which may be required in the event of a published amendment of the Index figures upon which the
computation was based unless the Lessee shall, within 60 days after the giving of such notice, notify the Port of any claimed
error therein. If, at the time required for the determination of the additional rent the Index is no longer published or issued, the
parties shall use such other index as is then generally recognized and accepted for similar determination of purchasing power.
Any dispute between the parties as to any such rental computation shall be determined by arbitration. If arbitration is
requested by either party, then each party shall notify the other party of their choice of one arbitrator each, and each party
shall instruct their arbitrator to meet with the arbitrator selected by the other party, and it shall be their duty to mutually agree
upon a third arbitrator. These three arbitrators shall then, as soon as practicable, meet to determine what rental adjustment, if
any, should be made in accordance with the above guidelines. The majority decision of such arbitrators shall be binding upon
both parties thereto. Each party shall be responsible for the fee charged by their selected arbitrator and shall bind themselves
to share equally in the fee charged by the third arbitrator. In the event the decision of the arbitrators, or the Port where
arbitration is not involved, is not available before the commencement of the next succeeding rental term, the Lessee shall
continue to pay rent at the then current rental rate and any change in that amount made by the arbitrators, or the Port where
arbitration is not involved, shall be promptly paid retroactively by the Lessee. If either party fails to appoint an arbitrator or if
the two arbitrators that are appointed fail to select a third arbitrator within a reasonable time, either party shall have the right
to apply to the Superior Court of Franklin County, State of Washington, for appointment of an arbitrator.
In lieu of the automatic increase in Rent determined as hereinabove provided, either party may elect to have the rental
adjusted as of any Rental Adjustment Date as follows:
Ninety (90) days or more prior to a particular Rental Adjustment Date, either party may notify the other in writing of its election
to have the Rent established at fair market value as herein after determined, in lieu of the CPI adjusted Rent. The Port and
Lessee shall attempt to agree upon Rent for the Premises until the next Rental Adjustment Date, or the expiration of the term
of the Lease, as the case may be (the "Succeeding Period"), such Rent to equal at least one hundred percent (100%) of the fair
market rental value of the Premises for the Succeeding Period. If the parties are unable to agree upon the Rent for the
Succeeding Period within thirty (30) days, then within ten (10) days thereafter each party, at its own costs and by giving notice
to the other party, shall appoint a real estate appraiser with at least five (5) years full-time commercial real estate appraisal
experience in the area in which the Premises are located to appraise and set Rent for the Succeeding Period. If a party does not
appoint an appraiser within ten (10) days after the other party has given notice of the name of its appraiser, the single
appraiser appointed shall be the sole appraiser and shall set Rent for the Succeeding Period. If there are two appraisers
COP -TB -060116 - 2 -
Page 19 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
appointed by the parties as stated in this paragraph, they shall meet promptly and attempt to set Rent for the Succeeding
Period. If the two appraisers are unable to agree within thirty (30) days after the second appraiser has been appointed, they
shall attempt to select a third appraiser meeting the qualifications stated in this paragraph within ten (10) days after the last
day the two appraisers were given to set Rent. If the two appraisers are unable to agree on the third appraiser within such ten
(10) day period, either of the parties to this Lease, by giving ten (10) days' notice to the other party, may apply to the presiding
judge of the Superior Court of Franklin County, for the selection of a third appraiser meeting the qualifications stated in this
paragraph. Each of the parties shall bear one-half (1/2) of the cost of appointing the third appraiser and of paying the third
appraiser's fee. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either
party.
Within thirty (30) days after the selection of the third appraiser, a majority of the appraisers shall set Rent for the Succeeding
Period. If a majority of the appraisers are unable to set Rent within the stipulated period of time, the three appraisals shall be
added together and their total divided by three (3). The resulting quotient shall be the Rent for the Premises during the
Succeeding Period. If, however, the low appraisal and/or the high appraisal is/are more than five percent (5%) lower and/or
higher than the middle appraisal, the low appraisal and/or the high appraisal shall be disregarded. If only one (1) appraisal is
disregarded, the remaining two (2) appraisals shall be added together and their total divided by two (2), and the resulting
quotient shall be Rent for the Premises during the Succeeding Period. If both the low appraisal and the high appraisal are
disregarded as stated in this paragraph, the middle appraisal shall be Rent for the Premises during the Succeeding Period. In
setting Rent, the appraiser or appraisers shall not take into consideration any properties located outside of the geographic
location of the Premises.
After Rent for the Succeeding Period has been set, the appraisers shall immediately notify the parties thereof in writing,
certified mail, return receipt requested.
In no event shall any appraisal procedures provided for herein, nor any determination by the parties hereto, result in Rent for
any period being less than Rent for the immediately preceding period.
ARTICLE 6 • BOND
Lessee shall not be required to provide a bond or other security for rent as allowed under RCW 53.08.085.
ARTICLE 7 • USE OF PREMISES
Lessee shall use the Premises for administration and other activities associated with emergency management, public safety,
utilities and other similar municipal functions. Emergency management shall include emergency preparedness and response for
Port facilities, such as but not limited to the Tri -Cities Airport and Big Pasco Industrial Center, and for freight transportation
facilities, such as, but not limited to the Burlington Northern Classification Yard and port facilities located on the Columbia and
Snake River. The Lessee shall not use them for any other purpose without the written consent of the Port.
ARTICLE 8 • UTILITIES
The Lessee shall be liable for and shall pay, throughout the term of this lease, all charges for all utility services furnished to the
Premises, including but not limited to electricity, gas, water and garbage disposal. The Lessee shall make application directly to
Public Utility District #1 of Franklin County for its own electric service and, if the Lessee is required to have its own electric
meter and meter loops, then it shall apply to said utility district for said meter and to any qualified electric contractor for a
meter base and meter loop, all at the expense of the Lessee. In the event a water meter is necessary, it also shall be paid for
and installed at the expense of the Lessee; otherwise, water and sewer service will be billed monthly by the Port on the basis of
the Port's prorate schedule. Port reserves the right to adjust, from time -to -time, its charges for water and sewer service. Any
Lessee not having a water meter and having a water type air conditioner on the Premises shall equip and maintain said air
conditioner with a fully operating recirculating water pump system.
ARTICLE 9 • ACCEPTANCE OF PREMISES
Port makes no representations or warranties to Lessee regarding the Premises, including the structural condition of the
Premises and the condition of all mechanical, electrical, and other systems on the Premises. Lessee shall be responsible for
performing any work necessary to bring the Premises into condition satisfactory to Lessee. By signing this Lease, Lessee
acknowledges that it has had adequate opportunity to investigate the Premises, acknowledges responsibility for making any
corrections, alterations and repairs to the Premises (other than the Port's Work), and acknowledges that the time needed to
completed any such items shall not delay the Commencement Date. Lessee acknowledges that the roof of the Premises may
leak from time to time as a result of the age of the roofing materials and the design of the roofs. Notwithstanding any other
COP -TB -060116 - 3 -
Page 20 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
provision herein to the contrary, the Port makes no warranty whatsoever either express or implied relating to the condition of
the roofs, and habitability of the building generally or for a specific purpose. In no event shall the Port be responsible for
damage to Lessee's property or the property of third parties.
ARTICLE 10 • MAINTENANCE AND REPAIR
At the expiration or sooner at termination of this lease, Lessee shall return the Premises to the Port in the same condition in
which received, reasonable wear and tear excepted. Lessee shall, at its own expense, at all times, keep the Premises and the
adjoining platforms, roadways and tracks, if any, neat, clean, free from weeds and in a safe and sanitary condition and shall
maintain and keep the leased Premises in a good state of repair and shall commit no waste of any kind and shall keep the
electrical system, all pipes and drains, if any, clean and in a good state of repair. Lessee shall not permit or suffer any undue
accumulations of waste material on the Premises nor dispose of any waste material on any property owned by Port nor permit
or suffer any liquid industrial waste or chemicals which might damage bacterial action of the sanitary lagoon to enter the
drainage or sewer lines. Repairs shall be made with due diligence, in a good and workmanlike manner and in compliance with
all laws, ordinances, orders, rules, regulations, certificates of occupancy, or other governmental requirements; shall be
promptly and fully paid for by Lessee; and shall be made under the supervision of an architect or engineer reasonably
satisfactory to Port and in accordance with plans and specifications and cost estimates approved by Port prior to the
commencement of work. Port may designate a supervising architect to assure compliance with the provisions of this
paragraph, and if it does, Lessee will pay the supervising architect's charges.
ARTICLE 11 • IMPROVEMENTS, ALTERATIONS AND FIXTURES
Lessee shall have the right to make alterations or additions to the Premises, subject to the prior written consent of the Port.
Any such alterations or additions shall be made with due diligence, in a good and workmanlike manner and in compliance with
this agreement, all laws, ordinances, orders, rules, regulations, certificates of occupancy, or other governmental requirements;
promptly and fully paid for by Lessee; and made under the supervision of an architect or engineer reasonably satisfactory to
Port and in accordance with plans and specifications and cost estimates approved by Port. Port may designate a supervising
architect to assure compliance with the provisions of this paragraph, and, if it does, Lessee will pay the supervising architect's
charges. Title to all improvements constructed by Lessee shall be and remain vested in Lessee during the term of this Lease.
Unless Port otherwise elects, all alterations, additions, fixtures, and improvements, whether temporary or permanent in
character, made in or upon the Premises by Lessee, will immediately vest in Port at the end of the term of this Lease, and will
remain on the Premises without compensation to Lessee. All shelves, bins, machinery and trade fixtures installed by Lessee
may be removed by Lessee prior to the termination of this Lease, and shall be removed by the date of termination of this Lease
or upon earlier vacating of the Premises if required by Port; upon any such removal Lessee shall restore the Premises to their
original condition. All such removals and restoration shall be accomplished in good workmanlike manner so as not to damage
the primary structure or structural qualities of the buildings and other improvements situated on the Premises. In the event of
any failure by Lessee to remove, repair or clean the Premises as provided in this section, Lessee shall, upon demand, reimburse
Port for the cost of any such removal, repair or cleaning. Any property left on the Premises after the expiration or termination
of the Term or after Lessee's vacation or abandonment of the Premises ("Abandoned Property') will be deemed to have been
abandoned and to have become the property of Port to dispose of at Port's discretion. Lessee shall reimburse Port for any of
Port's court costs, attorneys' fees, and storage charges related to Abandoned Property. Port may, at its option, sell Abandoned
Property at private sale without notice or legal process, for such price as Port may obtain, and apply the proceeds of such sale
to any amounts due under this Lease from Lessee to Port, including expenses incident to the removal and sale of Abandoned
Property, or Port may otherwise dispose of Abandoned Property, or retain it without compensation to Lessee.
ARTICLE 12 • INSPECTION
The Port reserves the right to inspect the leased Premises, including any chattels or equipment of the Port thereon located, at
any and all reasonable times throughout the term of this lease: Provided that it shall not interfere unduly with Lessee's
operations. The right of inspection reserved to the Port hereunder shall impose no obligation on the Port to make inspections
to ascertain the condition of the Premises and shall impose no liability upon the Port for failure to make such inspection.
Furthermore, the United States Maritime Administration reserved the right for the Government, its agents, customers,
transferees, and successors ingress to and egress from the leased premises for certain purposes as provided in the Quitclaim
Deed between the United States Maritime Administration and the Port, Auditor File Number 1840777, and herein further
incorporated as Exhibit A to this Agreement (USA Deed).
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Page 21 of 226
PORT OF PASCO
TERM BUILDING LEASE
ARTICLE 13 • SIGNS
P 0 Box 769
PASCO, WA 99301
(509)547-3378
No signs or other advertising matter, symbols, canopies or awnings shall be attached to or painted on or within the leased
Premises, including the windows and doors thereof, without the approval of the Executive Director first had and obtained. At
the termination or sooner expiration of this lease, all such signs, advertising matter, symbols, canopies or awnings attached to
or painted by Lessee shall be removed by Lessee at its own expense, and Lessee shall repair any damage or injury to the
Premises, and correct any unsightly condition, caused by maintenance and removal of said signs, etc.
ARTICLE 14 • DAMAGE OR DESTRUCTION
In the event the Premises are rendered untenantable in whole or in part by fire, the elements, or other casualty, Port may elect,
at its option, not to restore or rebuild the Premises and shall so notify Lessee, in which event Lessee shall vacate the Premises,
and this Lease shall be terminated; or, in the alternative Port shall notify Lessee, within thirty (30) days after the notice of such
casualty, that Port will rebuild or restore the Premises and that such work will be completed within one hundred eighty (180)
days from the date of such notice of intent. If Port cannot restore or rebuild the Premises within one hundred eighty (180)
days, then the Lease may be terminated at Lessee's option upon ten (10) days' written notice to Port. During the period of
untenantability, rent shall abate in the same ratio as the portion of the Premises rendered untenantable bears to the whole of
the Premises; provided that if the damage is due to the negligence or willful act of Lessee there shall be no abatement of rent.
ARTICLE 15 • INDEMNIFICATION
The Port, its employees and agents shall not be liable for any injury (including death) to any persons or for damage to any
property, regardless of how such injury or damage be caused, sustained or alleged to have been sustained by the Lessee or by
others as a result of any condition (including existing or future defects in the Premises or occurrence whatsoever related in any
way to the Premises and the areas adjacent thereto or related in any way to Lessee's use or occupancy of the Premises and of
the areas adjacent thereto. Lessee agrees to defend and to hold and save the Port harmless from all liability or expense
(including attorney fees and other expenses) in connection with any such items or actual or alleged injury or damage.
ARTICLE 16 • WAIVER OF SUBROGATION
Port and Lessee hereby mutually release each other from liability and waive all right of recovery against each other for any loss
from perils insured against under their respective fire insurance contracts, including any extended coverage endorsement
thereto. Provided, that this waiver shall be inapplicable if it would have the effect, but only to the extent that it would have the
effect, of invalidating any insurance coverage of Port or Lessee.
ARTICLE 17 • LIABILITY INSURANCE
Carried by Lessee. Lessee shall obtain and keep in force during the term of this Lease their liability insurance coverage
protecting Lessee against claims for bodily injury, personal injury and property damage based upon, involving or arising out of
the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on
an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence. All insurance to be
carried by Lessee shall be primary to and not contributory with any similar insurance carried by Port, whose insurance shall be
considered excess insurance only. The Port shall be furnished with a certificate by Lessee's insurer evidencing the coverage
under such insurance. Should the Lessee's current insurance coverage terminate during the life of this lease, or any extension
thereof, the Lessee shall furnish Port with a new binder and endorsements prior to the expiration of the prior coverage.
Carried by Port. At Port's own expense, Port may also maintain liability insurance similar to that described in the preceding
Section, in addition to and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an
additional insured therein.
Insurance Policies. Insurance required hereunder shall be in companies duly licensed to transact business in the state where
the Premises are located, and maintaining during the policy term a "General Policyholders Rating" of at least B+, V or such
other rating as may be required by a Lender, as set forth in the most current issue of "Best's Insurance Guide." Lessee shall not
do or permit to be done anything, which shall invalidate the insurance policies maintained by Port. Lessee shall cause to be
delivered to Port, within seven (7) days after the earlier of the Early Possession Date or the Commencement Date, certified
copies of, or certificates evidencing the existence and amounts of, the insurance required of Lessee by this Lease. No such
coverage shall be cancelable or subject to modification except after thirty- (30) days' prior written notice to Port. At least thirty
(30) days prior to the expiration of such policies, Lessee shall furnish Port with evidence of renewals or "insurance binders"
evidencing renewal thereof, or Port may obtain such insurance and charge the cost thereof to Lessee, which amount shall be
payable by Lessee to Port upon demand.
COP -TB -060116 - 5 -
Page 22 of 226
PORT OF PASCO
TERM BUILDING LEASE
ARTICLE 18 • USE RESTRICTIONS
P 0 Box 769
PASCO, WA 99301
(509)547-3378
The Lessee shall not carry on upon the demised Premises any noxious or annoying trade or activity which would constitute a
nuisance or hazard to the public, other tenants or to the Lessor and shall not substantially deviate from its announced and
original use of the property without consultation with and consent from the Lessor.
The Lessee covenants and agrees that it shall not permit the occupancy or use of any other buildings or structures on the
Property as Residential Property, as defined under 24 C.F.R. Part 35, without complying with the terms of this agreement and
applicable federal, state, and local laws and regulations pertaining to lead-based paint and/or lead-based paint hazards. The
Lessee further agrees that property shall not be used by infants and children under seven years of age without complying with
the terms of this agreement and applicable federal, state, and local laws and regulations pertaining to lead-based paint and/or
lead-based paint hazards.
ARTICLE 19 • TAXES
Lessee shall be liable for and shall pay, throughout the term of this lease before delinquency, all license and excise fees and
occupation taxes covering the business conducted on the Premises and all taxes on property of Lessee on the leased Premises
and any taxes on the leasehold interest created by this lease agreement. At the present time, since the Port is a municipal
corporation, there is no real estate tax assessed on realty owned by it. If in the future such a tax is assessed or if a tax in lieu of
such a tax is assessed, the Lessee agrees to pay the same promptly and before delinquency on that portion of it allocable to the
demised Premises.
Should the real estate hereby leased, or any portion thereof, be specifically benefited by any local improvement district now in
existence or hereafter formed by any other governmental entity such that an L.I.D. assessment is made as to such specially
benefited property, the Lessee covenants and agrees to pay to the Port annually, during the term of this lease and any
extensions thereof, a sum of money equal to that which the Port would be required to pay annually as to such property under
the lengthiest payment schedule available to assessed property owners within the district.
ARTICLE 20 • COMPLIANCE WITH PORT REGULATIONS AND WITH ALL LAWS
Lessee agrees to comply with all applicable rules and regulations of the Port pertaining to the building or other realty of which
the Premises are a part now in existence or hereafter promulgated for the general safety and convenience of the Port, its
various tenants, invitees, licensees and the general public. Lessee further agrees to comply with the terms of the Quitclaim
Deed between the United States Maritime Administration and the Port, Auditor File Number 1840777, incorporated as Exhibit
A to this Agreement. Lessee further agrees to comply with all applicable federal, state and municipal laws, ordinances and
regulations. Any fees for any inspection of the Premises during or for the lease term by any federal, state or municipal officer
and the fees for any so-called "Certificate of Occupancy" shall be paid by Lessee.
ARTICLE 21 • ASSIGNMENT OR SUBLEASE
Lessee shall not assign or transfer this lease or any interest therein nor sublet the whole or any part of the Premises, nor shall
this lease or any interest thereunder by assignable or transferable by operations of laws or by any process or proceeding of any
court, or otherwise, without the written consent of the Port first had and obtained, such consent not to be unreasonably
withheld by the Port if the assignment or sublet meets the terms of this lease. If the Port shall give its consent to any
assignment or sublease, this paragraph shall nevertheless continue in full force and effect and no further assignment or
sublease shall be made without the Port's consent. If Lessee is a corporation, any transfer of ownership by merger,
consolidation or liquidation, or any change in ownership, or power to vote the majority of the outstanding voting stock of
Lessee, constitutes an assignment for purposes of this section. If Lessee is a partnership, limited liability company, limited
liability partnership, or proprietorship, a transfer of a controlling interest in such company, partnership or proprietorship
constitutes an assignment for purposes of this section.
Notwithstanding any permitted assignment or subletting, Lessee shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for compliance with all of its other obligations under the
terms, provisions and covenants of this Lease. Upon the occurrence of an "event of default" as hereinafter defined, if the
Premises or any part thereof are then assigned or sublet, Port, in addition to any other remedies herein provided, or provided
by law, may at its option collect directly from such assignee or subtenant all rents becoming due to Lessee under such
assignment, transfer or sublease and apply such rent against any sums due to Port from Lessee hereunder, and no such
collection shall be construed to constitute a novation or a release of Lessee from the further performance of Lessee's
obligations hereunder.
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Page 23 of 226
PORT OF PASCO
TERM BUILDING LEASE
ARTICLE 22 • DEFAULTS AND REMEDIES
P 0 Box 769
PASCO, WA 99301
(509)547-3378
EVENTS OF DEFAULT. The following events shall be deemed to be events of default by Lessee under this Lease:
A. Lessee fails to pay any installment of the rent herein reserved when due, or any other payment or reimbursement to
Port required herein when due, and such failure continues for a period of ten (10) days from the date after written
notice thereof to Lessee.
B. Lessee becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of
creditors.
C. Lessee files a petition under any section or chapter of the National Bankruptcy Act, as amended, or under any similar
law or statute of the United States or any state thereof; or Lessee is adjudged bankrupt or insolvent in proceedings
filed against Lessee thereunder.
D. A receiver or trustee is appointed for all or substantially all of the assets of Lessee.
E. Lessee abandons, deserts or vacates any substantial portion of the Premises for a period in excess of six months.
F. Lessee fails to comply with any term, provision or covenant of this Lease (other than the foregoing in this paragraph
A) and does not cure such failure within twenty (20) days after written notice thereof to Lessee.
REMEDIES. Upon the occurrence of any such events of default described hereinabove, Port shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever.
A. Port may accelerate all rent payments due hereunder which shall then become immediately due and payable.
B. Terminate this Lease, in which event Lessee immediately shall surrender the Premises to Port, and if Lessee fails so to
do, Port may, without prejudice to any other remedy which it may have for possession, or arrearages in rent, enter
upon and take possession of the Premises and expel or remove Lessee and any other person who may be occupying
the Premises or any part thereof, without being liable for prosecution or any claim of damages therefor, and Lessee
agrees to pay to Port on demand the amount of all loss and damage which Port may suffer by reason of such
termination, whether through inability to relet the Premises on satisfactory terms or otherwise.
C. Enter upon and take possession of the Premises and expel or remove Lessee and any other person who may be
occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor,
and relet the Premises for such terms ending before, on or after the expiration date of the Lease Term, at such rentals
and upon such other conditions (including concessions and prior occupancy periods) as Port in its sole discretion may
determine, and receive the rent therefor; and Lessee agrees to pay to Port on demand any deficiency that may arise
by reason of such reletting. Port shall use reasonable efforts to mitigate its damages by reletting the Premises. In the
event Port is successful in reletting the Premises at a rental in excess of that agreed to be paid by Lessee pursuant to
the terms of this Lease, Port and Lessee each mutually agree that Lessee shall not be entitled, under any
circumstances, to such excess rental, and Lessee does hereby specifically waive any claim to such excess rental.
D. Enter upon the Premises, without being liable for prosecution of any claim for damages therefor, and do whatever
Lessee is obligated to do under the terms of this Lease; and Lessee agrees to reimburse Port on demand for any
expenses which Port may incur in thus effecting compliance with Lessee's obligations under this Lease, and Lessee
further agrees that Port shall not be liable for any damages resulting to the Lessee from such action, whether caused
by the negligence of Port or otherwise.
E. Whether or not Port retakes possession or relets the Premises, Port shall have the right to recover unpaid rent and all
damages caused by Lessee's default, including attorney fees. Damages shall include, without limitation: all rentals
lost, all legal expenses and other related costs incurred by Port following Lessee's default, all costs incurred by Port in
restoring the Premises to good order and condition, or in remodeling, renovating or otherwise preparing the Premises
for reletting, all costs (including without limitation any brokerage commissions and the value of Port's time) incurred
by Port, plus interest thereon from the date of expenditure until fully repaid at the rate of eighteen percent (18%) per
annum.
F. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or
any other remedies provided by law, such remedies being cumulative and non-exclusive, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to Port hereunder or of any damages
accruing to Port by reason of the violation of any of the terms, provisions and covenants herein contained. No act or
COP -TB -060116 -7
Page 24 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
thing done by Port or its agents during the Lease Terms hereby granted shall be deemed a termination of this Lease or
an acceptance of the surrender of the Premises, and no agreement to terminate this Lease or accept a surrender of
the Premises shall be valid unless in writing signed by Port. No waiver by Port of any violation or breach of any of the
terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions and covenants herein contained. Port's acceptance of the payment
of rental or other payments hereunder after the occurrence of an event of default shall not be construed as a waiver
of such default, unless Port so notifies Lessee in writing. Forbearance by Port to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or
of Port's right to enforce any such remedies with respect to such default or any subsequent default. If, on account of
any breach or default by Lessee in Lessee's obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Port to employ or consult with an attorney concerning or to enforce or defend any of
Port's rights or remedies hereunder, Lessee agrees to pay any reasonable attorneys' fees so incurred.
ARTICLE 23 • TERMINATION FOR GOVERNMENT USE
In the event that the United States Government or any agency or instrumentality thereof shall, by condemnation or otherwise,
take title, possession or the right to possession of the Premises or any part thereof, the Port may, at its option, terminate this
lease as of the date of such taking, and, if Lessee is not in default under any of the provisions of this lease on said date, any
rental prepaid by Lessee shall, to the extent allocable to any period subsequent to the effective date of the termination be
promptly refunded to Lessee.
ARTICLE 24 • TERMINATION BECAUSE OF COURT DECREE
In the event that any court having jurisdiction in the matter shall render a decision which has become final and which will
prevent the performance by the Port of its obligations under this lease, then either party may terminate this lease by written
notice, and all rights and obligations hereunder (with the exception of any undischarged rights and obligations that accrued
prior to the effective date of termination) shall thereupon terminate. If Lessee is not in default under any of the provisions of
this lease on the effective date of such termination, any rental prepaid by Lessee shall, to the extent allocable to any period
subsequent to the effective date of termination, be promptly refunded to Lessee.
ARTICLE 25 • WAIVER
The acceptance of rental by the Port for any period or periods after a default by Lessee hereunder shall not be deemed a waiver
of such default unless the Port shall so intend and shall so advise Lessee in writing. No waiver by the Port of any default
hereunder by Lessee shall be construed to be or act as a waiver of any subsequent default by Lessee. After any default shall
have been cured by Lessee, it shall not thereafter be used by the Port as a ground for the commencement of any action under
the provisions of Article 22 hereof.
ARTICLE 26• INSOLVENCY
If the lessee shall file a petition in bankruptcy or if Lessee shall be adjudged bankrupt or insolvent by any court, or if a receiver
of the property of Lessee shall be appointed in any proceeding brought by or against Lessee, or if Lessee shall make an
assignment for the benefit of creditors, or if any proceedings shall be commenced to foreclose any mortgage or any other lien
on Lessee's interest in the Premises or on any personal property kept or maintained on the Premises by Lessee the Port may, at
its option, terminate this lease.
ARTICLE 27 • SURRENDER OF PREMISES - ATTORNEY'S FEES
At the expiration or sooner termination of the lease, Lessee shall promptly surrender possession of the Premises to the Port,
and shall deliver to the Port all keys that it may have to any and all parts of the Premises. In the event that either party shall be
required to bring any action to enforce any of the provisions of this lease, or shall be required to defend any action brought by
the other party with respect to this lease, the losing party shall pay all of the successful party's actual costs in connection with
such action, including such sums as the court or courts may adjudge reasonable as attorneys' fees in the trial court and in any
appellate courts.
In the event the Port serves any notice for non-compliance with any provision of this lease on Lessee, Lessee shall pay the sum
of $50.00 for the cost of preparation of the notice and service of the notice upon Lessee. Said sum due immediately upon
service of the notice.
COP -TB -060116 - 8 -
Page 25 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
In the case of a dispute by the parties over the terms of this lease, with the exception of Articles 3, 4 and 5, the parties agree to
meet in good faith to resolve the dispute and after such meeting, if no resolution is found, agree to resolve the dispute through
binding arbitration pursuant to RCW 7.04A.
ARTICLE 28 • HOLDING OVER
If Lessee shall, with the consent of the Port, hold over after the expiration or sooner termination of the term of this lease, the
resulting tenancy shall, unless otherwise mutually agreed, be for an indefinite period of time on a month-to-month basis.
During such month-to-month tenancy, Lessee shall pay to the Port One Hundred Fifty percent (150%) of the rate of rental as set
forth herein, unless a different rate shall be agreed upon, and shall be bound by all of the additional provisions of this lease
agreement insofar as they may be pertinent.
ARTICLE 29 • ADVANCES BY PORT FOR LESSEE
If Lessee shall fail to do anything required to be done by it under the terms of this lease, except to pay rent, the Port may, at its
sole option, do such act or thing on behalf of Lessee, and upon notification to Lessee of the cost thereof to the Port, Lessee
shall promptly pay the Port the amount of that cost.
ARTICLE 30 • LIENS AND ENCUMBRANCES
Lessee shall keep the leased Premises free and clear of any liens and encumbrances arising or growing out of the use and
occupancy of the said Premises by Lessee. At the Port's request, Lessee shall furnish the Port with written proof of payment of
any item which would or might constitute the basis for such a lien on the leased Premises if not paid.
ARTICLE 31 • NOTICES
All notices hereunder may be delivered or mailed. If mailed, they shall be sent by certified or registered mail to the following
respective addresses:
TO LESSOR: TO LESSEE:
Port of Pasco Clty of Pasco
P.O. Box 769 525 N. 3`d Avenue
Pasco, WA 99301 Pasco, WA 99301
or to such other respective addresses as either party hereto may hereafter from time to time designate in writing. Notices sent
by mail shall be deemed to have been given when properly mailed, and the postmark affixed by the United States Post Office
shall be conclusive evidence of the date of mailing.
ARTICLE 32 • JOINT AND SEVERAL LIABILITY
Each and every party who signs this lease, other than in a representative capacity, as Lessee, shall be jointly and severally liable
hereunder.
ARTICLE 33 • "LESSEE" INCLUDES LESSEES, ETC.
It is understood and agreed that for convenience the word "Lessee" and verbs and pronouns in the singular number and neuter
gender are uniformly used throughout this lease, regardless of the number, gender or fact of incorporation of the party who is,
or of the parties who are, the actual Lessee or Lessees under this agreement.
ARTICLE 34 • CAPTIONS
The captions in the lease are for convenience only and do not in any way limit or amplify the provisions of the lease.
ARTICLE 35 • INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this lease agreement or the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this lease agreement or the application of such term or provision to persons or
COP -TB -060116 - 9 -
Page 26 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and shall continue
in full force and effect.
ARTICLE 36 • ENTIRE AGREEMENT - AMENDMENTS
This agreement constitutes the whole agreement between the Port and Lessee. There are no terms, obligations, covenants or
conditions other than those contained herein. No modification or amendment of this agreement shall be valid and effective
unless evidenced by an agreement in writing.
ARTICLE 37 • NON-DISCRIMINATION
A. The Lessee agrees that in the performance of this Lease that it will not discriminate against any person or class of
persons by reason of race, color, creed, sex, age, marital status, political affiliation or non -affiliation, national origin,
religion, disability or sexual orientation in the use of any of the facilities provided for the public on the Premises.
Lessee also agrees (a) to furnish service on a fair, equal, and nondiscriminatory basis to all users of the facility, and (b)
to charge fair, reasonable, and nondiscriminatory prices for each unit for service, provided, that Lessee may be
allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to
volume purchasers..lt is agreed that the Lessee's non-compliance with the provisions of this clause shall constitute a
default of this Lease. In the event of such noncompliance, the PORT may take appropriate action to enforce
compliance, may terminate this Lease, or may pursue such other remedies as may be provided by law.
ARTICLE 38 • HAZARDOUS SUBSTANCES
Lessee agrees that Lessee shall not use, generate, treat, store or dispose of Hazardous Material on the Premises or adjoining
areas except in accordance with any law, ordinance, rule or regulation of any governmental authority having jurisdiction of the
Premises or adjoining areas. If Lessee breaches the obligations stated in the preceding sentence, or if the presence of
Hazardous Material on the Premises or adjoining areas caused or permitted by Lessee results in contamination of the Premises
or adjoining areas, then Lessee shall indemnify, defend and hold Port harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including without limitation diminution in value of the Premises or adjoining areas,
damages for the loss or restriction on the use of rentable or usable space or of any adverse impact on marketing of space on
the Premises or adjoining areas, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the Lease Term as a result of such contamination. This indemnification of Port by Lessee includes, without
limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or
restoration work required by any federal, state or local governmental agency, political subdivision, lender or buyer because of
Hazardous Material present in the soil or groundwater on or under the Premises or adjoining areas, diminution in value of the
Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises or adjoining
areas, damages arising from any adverse impact on marketing of space in the building, and sums paid in settlement of claims,
attorneys' fees, consultant fees, laboratory fees and expert fees. Without limiting the foregoing, if the presence of any
Hazardous Material on the Premises or adjoining areas caused or permitted by Lessee results in any contamination of the
Premises or adjoining areas, Lessee shall promptly take all actions at its sole expense as are necessary to return the Premises or
adjoining areas to the condition existing prior to the contamination of the Premises or adjoining areas by any such Hazardous
Material; provided, however, the Port's approval of such action shall first be obtained, which approval shall not be
unreasonably withheld.
Lessee will deliver to the Port copies of any documents received from, or sent by Lessee to, the United States Environmental
Protection Agency and/or any state, county or municipal environmental or health agency concerning Lessee's operations on the
Premises.
As used herein, the term "Hazardous Material" means any substance which is (i) designated, defined, classified or regulated as
a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as
currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof
and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii)
radioactive materials. "Environmental Law(s)" means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the
Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the
Clean Water Act, 33 U.S.C. § 12S1 et seq., and the Washington Model Toxics Control Act, Chapter 70.105D, Revised Code of
Washington, as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and
any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage,
disposal, presence, clean-up, transportation or release or threatened release into the environment of Hazardous Material.
COP -TB -060116 - 10 -
Page 27 of 226
PORT OF PASCO
TERM BUILDING LEASE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
Lessee acknowledges that this Lease Agreement is subject to rights of the USA to access the Property for various environmental
matters as described in the Quitclaim Deed between the United States Maritime Administration and the Port, filed under
Franklin County Auditor No 1840777. Subparagraph 8.1.2 of the USA Deed is hereby incorporated herein, and Lessee agrees to
be bound by the provisions thereof.
COP -TB -060116
ARTICLE 39=—PRINGIPAI -ASA-OBLIGOR • INTENTIONALLY OMITTED
-11-
Page 28 of 226
PORT OF PASCO
TERM BUILDING LEASE
ARTICLE 40 • GOVERNING LAW; VENUE
P 0 Box 769
PASCO, WA 99301
(509)547-3378
This agreement shall be interpreted, construed and governed accordingly to the laws of the state of Washington. The parties
agree that Venue for any action under this Agreement shall be in Franklin County, Washington.
IN WITNESS WHEREOF, this Agreement has been signed and attested by the proper officers of the contracting parties this
day of 2016.
PORT OF PASCO
LESSOR
By:
Its:
And:
Its:
CITY OF PASCO
LESSEE
By:
Its:
And:
Its:
State of Washington)
: ss.
County of Franklin)
On this day of , 2016, before me, the undersigned notary public in and for the State of Washington, duly
commissioned and sworn, personally appeared Randy Hayden to me known to be the Executive Director of THE PORT OF
PASCO that executed the within and foregoing instrument, and acknowledged that said instrument is the free and voluntary act
and deed of said corporation, for the uses and purposes therein mentioned and on oath stated that they are authorized to
execute said instrument.
Given under my hand and official seal the day and year last above written.
Notary Public in and for the
State of
Residing at
My Commission Expires
COP -TB -060116
-12-
Page 29 of 226
PORT OF PASCO
TERM BUILDING LEASE
CORPORATION NOTARY ACKNOWLEDGEMENT
State of )
: ss.
County of )
P 0 Box 769
PASCO, WA 99301
(509)547-3378
On this day of , 2016, before me, the undersigned notary public in and for the State of
, duly commissioned and sworn, personally appeared
to me known to be the _, respectively, of
that executed the within and foregoing instrument, and
acknowledged that said instrument is the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned and on oath stated that they are authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above
written.
Notary Public in and for the
State of
Residing at
My Commission Expires
INDIVIDUAL NOTARY ACKNOWLEDGEMENT
State of )
: ss.
County of )
On this day of , 2016, before me, the undersigned notary public in and for the State of
, duly commissioned and sworn, personally appeared , to
me known to be the individuals described in and who executed the within for foregoing instrument, and
acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes
mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above
written.
Notary Public in and for the
State of
Residing at
My Commission Expires
COP -TB -060116
-13-
Page 30 of 226
PORT OF PASCO
TERM BUILDING LEASE
PORT OF PASCO
PRO
COP -TB -060116
FORMA
-14-
P 0 Box 769
PASCO, WA 99301
(509)547-3378
LEASE
Page 31 of 226
PORT OF PASCO
TERM BUILDING LEASE - EXHIBIT A
P 0 Box 769
PASCO, WA 99301
(509)547-3378
EXHIBIT A: QUIT CLAIM DEED BETWEEN THE UNITED STATES MARITIME ADMINISTRATION AND
PORT OF PASCO (AFN: 1840777)
COP -TB -060116
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Page 32 of 226
AGENDA REPORT
FOR: City Council June 14, 2016
TO: Dave Zabell, City Manager Regular Meeting: 6/20/16
Ahmad Qayoumi, Public Works Director
FROM: Dan Ford, City Engineer
Public Works
SUBJECT: Columbia Raw Water Supply — Professional Services Agreement Amendment
No. 3 - Murray, Smith and Associates
I. REFERENCE(S):
Vicinity Map
Professional Services Agreement Summary
Exhibit D - Additional Design Phase Services and Proposed Work Program for
Bidding and Construction Phase Services
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Amendment Number 3 to the Professional Services
Agreement for Design Revisions and Limited Construction Management and
Inspection Services for the Columbia Raw Water Supply project with Murray Smith
and Associates, Inc., and further, authorize the City Manager to execute the agreement.
III. FISCAL IMPACT:
Utility Fund (Water) - $528,716 - within current project budget.
Original PSA - $609,814 Paid with Department of Ecology Grant #C1200160
Amend. #1 - $21,300 Paid with Utility Fund (Water)
Amend. #2 - $39,395 Paid with Utility Fund (Water)
$670,509 - Total PSA Contract -To -Date
Amend. #3 - $528,716
$1,199,225 - Proposed Total PSA Contract
An increase in the total budget is not required for this PSA Contract amendment.
Page 33 of 226
IV. HISTORY AND FACTS BRIEF:
On December 19, 2011, the City Council approved a Professional Services Agreement
(PSA) with Murray Smith and Associates, Inc., (MSA) in the total amount of $609,814
for the design of a new raw water intake ($409,814) for the West Pasco Water
Treatment Plant and for the design and construction phase engineering for a new 16 -
inch irrigation line to connect the existing irrigation main in Sandifur Parkway to the
Columbia River ($200,000).
Amendment No. 1, approved on June 4, 2012, financed additional profession services
relating to the acquisition of an additional utility easement along the I-182/Harris Road
corridors and adjusted the total PSA amount to $631,114.
Amendment No. 2, approved on November 3, 2014, financed additional professional
services to include Allen Bradley Programmable Logic Controllers in the design and
adjusted the total PSA amount to $670,509.
The design and construction of the new 16 -inch irrigation line was completed in 2014.
The design of the raw water intake was completed to the 90% phase in 2014 then
placed on hold to await changes that may arise as the result of the 18 -month federal
environmental assessment review process. The official biological opinions rendered by
National Marine Fisheries Service/National Oceanic and Atmospheric Administration
and the United States Fish and Wildlife Service require alterations to the 90% design
and specifications.
Simultaneous to the regulatory review, as a best engineering practice on projects of this
magnitude, the City hired an outside consultant to perform an independent
constructability review of MSA's 90% design plans and specifications.
V. DISCUSSION:
As evidenced by the regulatory review and independent constructability review, MSA
performed well during the design phase of the project. As anticipated, the deliverables
from the constructability and regulatory reviews do require some modification to the
90 percent design plans and specifications to ready them for bidding.
Additionally, once the plans are complete and ready for bidding, there will be a need
for consultant services to assist staff during the bidding phase and to provide
construction management services (inspection and testing) of the new raw water intake.
As the result of their performance, the City requested MSA develop a Scope and Fee
for a third amendment to complete design and specifications as discussed above. The
proposed PSA amendment #3 amount for this effort totals $143,668.
Page 34 of 226
The construction of a raw water intake structure involves very specialized components
and construction techniques, while City Water Plant Operations and engineering staff
have been involved throughout the project design, the management and inspection of
the construction project also requires specialized training and experience. Assistance
from a consultant with expertise in the design and construction of raw water intake
structures is needed, would lessen potential liability and otherwise greatly benefit this
project.
The City desires to employ the successful construction management protocol recently
used on the Primary Clarifier project. This construction management model uses the
engineering services of the design consultant to ensure that the intent and integrity of
the original design is maintained throughout the project. An independent consultant is
also retained to monitor the day to day construction activities to ensure the facility is
built to the approved plans and specifications. Typically, the combined construction
management services of both consultants would equal between 15% and 20% of the
construction cost of the project. For the $6.7 million raw water intake project, the
combined construction management services will likely range from $1 million to $1.34
million.
With the goal of achieving a similar construction outcome, the City requested MSA
develop a Scope and Fee for limited engineering services during the bidding and
construction phase of the new raw water intake structure. The proposed additional PSA
contract amount for this phase is $385,048 which is approximately 6% of the $6.7
million construction cost.
The total amount requested for the next and final phases of the Columbia Raw Water
Supply through Amendment #3 is $528,716 ($143,668 to finalize design + $385,048
for limited construction management services).
Staff recommends the approval of Professional Services Agreement Amendment No. 3
with Murray Smith and Associates, Inc.
This item was discussed at the June 13, 2016 Council Workshop.
Page 35 of 226
VICINITY MAP
Page 36 of 226
Professional Services Agreement
(Summary Sheet)
Project: Professional Services Agreement for Design of Columbia Water Supply Project
Consultant: Murray Smith and Associates, Inc.
Address: 121 SW Salmon, Suite 900, Portland, OR 97204-2919
Scope of Services: Full design, bidding, and construction phase services for 1) a new raw water
intake structure and pumping station facility, and 2) the Harris Road irrigation booster pump
station and Dining.
Term:
Completion Date: December 31, 2018
Payments to Consultant:
❑X Hourly Rate: Billed hourly total contract not to exceed $1,199,225
❑ Fixed Sum of -
El
f❑ Other:
Insurance to be Provided:
1. Commercial General Liability:
❑ $1,000,000 each occurrence;
❑ $2,000,000 general aggregate; or
❑X $1,000,000 each occurrence; and $2,000,000 general aggregate
2. Professional Liability:
❑x $1,000,000 per claim;
❑ $1,000,000 policy aggregate limit; or
❑ $ per claim; and $ per policy aggregate limit
Other Information:
Signature by:
❑ Mayor ® City Manager
Page 37 of 226
EXHIBIT D
Columbia Water Supply Project
Intake Structure and Pump Station Facility
Additional Design Phase Services and Proposed Work Program for Bidding and Construction
Phase Services
Murray, Smith & Associates, Inc.
May 25, 2016
PROJECT BACKGROUND
The City of Pasco (City) and MURRAY, SMITH & ASSOCIATES, INC. (Consultant)
entered into an agreement and contract, dated December 19, 2011, for the Columbia Water
Supply Project. Under that Contact, the Consultant is providing permitting and design
services for the Intake Structure and Pumping Station Facility project (CIP #C1-11-05-
WTR).
PROJECT ASSUMPTIONS AND SCOPE CHANGES
The City had a limited budget available for engineering design. Delivering the desired
engineering services within the City's budget required a number of basic project criteria and
assumptions to be made. The project criteria and assumptions necessary to complete the
design were agreed upon between the City and the Consultant. These project criteria and
assumptions formed the basis of the scope of work, the project timeline and the resulting fee
required to complete the work. In the process of designing and permitting the facility, a
number of these project criteria and assumptions were adjusted, resulting in changes in the
scope of design.
PHASE 1— INITIAL EVALUATION, PERMITTING AND LAND ACQUISITION
Task I - Environmental Permitting
The original budget was based on the environmental assessment (EA) and biological
assessment (BA) process resulting in a "May Affect, Not Likely to Adversely Affect"
determination. Instead the EA and BA resulted in a "may affect and is likely to adversely
affect" determination with regard to Upper Columbia River Spring chinook and steelhead,
Middle Columbia River steelhead and the habitats for all three. This finding required formal
consultation with NOAA Fisheries. The EA and BA also resulted in a "may affect and is
likely to adversely affect" determination with regard to bull trout. This finding triggered
formal consultation with US Fish and Wildlife Service. Obtaining Biological Opinions from
these two responsible Federal agencies extended the project schedule and required continued
consultation and coordination between the Consultant, the City and the US Army Corps of
Engineers throughout the process of obtaining those opinions. The original project schedule
anticipated completion of design work by the end of September 2013. It is now anticipated
Murray, Smith & Associates, Inc.
May - 2016
City of Pasco
Intake Structure & Pump Station Facility
Page 38 of 226
EXHIBIT D
that design work will be completed in the second quarter of 2016. This extended design
period has also resulted in increased project management and subconsultant coordination
work.
PHASE 2 — DESIGN AND CONSTRUCTION PERMITTING
Task 4 — Design Services
Tasks 4.1 and 4.2 — Raw Water Pipeline Replacement and Electrical Duct Bank Design
The design scope of work assumed that the pipe from the new raw water pump station would
connect to the existing 24 -inch diameter raw water pipe at a location in West Court Street
near the new pump station. The City's State Environmental Policy Act (SEPA) checklist for
the West Pasco Water Treatment Plant (WPWTP) reported the need for this piping to be
upsized to approximately 30 inches in diameter. The scope of work assumed this design
work would be done at some future date when the WPWTP underwent its first or second
expansion of treatment capacity. Instead, the City directed the Consultant to include
replacement of the entire raw water pipeline in the current design of the new intake and
pump station. The City directed the Consultant to do so on the assumption that this would be
a simple replacement of the existing pipe with the larger pipe along the same alignment and
in the same trench. Survey and utility locate work determined that this corridor beneath the
I-182 bridge was already crowded with utilities. The City also directed the Consultant to
include in the design of the facilities within Court Street an electrical conduit duct bank three
feet deep by four feet wide within this highly congested corridor for the purpose of future
standby power requirements. These changes required additional design work to determine a
new alignment at a deeper depth for the raw water pipe and an alignment for the electrical
duct bank that would not conflict with the existing utilities.
Task 4.3 — Analysis of Raw Water Pump Station Location: Bank Slope versus Upland
The assumption made in preparing the scope and fee was that the City would designate the
pump station location along the slope of the river bank. After surveying and field
observation work was completed, it was observed that locating the structure on the slope
would incur greater construction cost and create access issues for the lifetime of the facility.
To support the City's decision on whether to relocate the facility to the upland location, the
Consultant conducted a financial and non-financial comparison of the two locations and
prepared a technical memorandum with recommendations.
Task 4.4 — Revisions to Raw Water Pump Station Architectural Design
Consultant's original fee estimate was based on designing either on a pre-engineered
building system or a standardized CMU building with typical municipal building elevations.
The City requested that the architectural elevations for the building be modified to provide a
structure that would look less institutional and more residential. This required extensive
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redesign of the interior layout in concert with changes to the exterior massing to eliminate
the simple rectangular appearance of the design basis building. The resulting elevations and
architectural detailing are far more complex than the basis of design structure.
ADDITIONAL CHANGES TO PHASE 2 SCOPE OF WORK
In addition to the changes in the scope that resulted from the changed project criteria and
assumptions, the following changes in the project scope have also been requested by the
City.
Task 4.5 — Participate in Constructability Review and Incorporate Comments into
Contract Documents
The City decided to use the extended period of time that resulted from the delay in
completing environmental permitting to hire a third party to prepare a constructability review
of the 90 percent design. The Consultant participated in the constructability review at the
City's request and direction.
Task 4.6 — Analysis and Alternatives Development to Reduce the Impacts of Milfoil
During the preliminary design stage, the design team considered specifying a mechanical
cleaning system in which the cylindrical screens rotate on bearings while fixed brushes
remove attached materials from the exterior of the screens. The mechanical cleaning system
option was discussed with the City during preliminary design in 2012. Based on the fact that
neither of the City's existing raw water intakes had experienced biofouling, it was agreed
that the final design would be based on conventional air burst cleaning of fixed screens rather
than a proprietary mechanical cleaning system. However, the City experienced serious
biofouling of both intakes in the summer of 2015, reportedly as a result of milfoil
attachment. The design team conducted an analysis of the problem based on the data made
available to the team. The design team developed options for changing the design to address
this problem and submitted a brief technical memorandum summarizing the analysis and
recommendations.
Task 4.7 — Design Changes to Reduce the Impact of Milfoil on the Constructed Works
(Optional)
Assuming that the City directs the design team to incorporate the changes recommended in
the technical memorandum, the design team will incorporate the required changes into the
final contract documents.
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Task 4.8 — Incorporate Loan Document Requirements into the Bid Documents
The City has obtained a loan from the Washington State Public Works Board for
construction of the facility. The design team will modify the 90 percent design to
incorporate the requirements of the PWB loan into the final design and bid documents.
Task 4.9 — Preparation of 100 Percent Check Set for Final Review (Optional)
The original scope assumed that the comments received from the City on the 90 percent
design submittal would be incorporated into a final design for preparation of bid ready
documents. The 90 percent documents were submitted for review in July 2014. Given the
amount of time that has elapsed since that submittal, the changes recommended in the
constructability review report and the changes resulting from the US Army Corps of
Engineers permitting requirements established through the EA and BA process, MSA is
proposing that a 100 percent check set submittal be prepared for review by the City. The
final, bid ready documents would be prepared by incorporating changes requested by the city
into the 100 percent check set.
Task 4.10 — Additional Upland Borings and Preparation of Geotechnical Data Report
(Optional)
Both the value engineering review and the constructability review have recommended that a
Geotechnical Baseline Report (GBR) be prepared to assure that all bids assume the same
degree of risk and contingency, on the theory that this will generate more consistent bids and
reduce the risk of changed condition claims against the City. However, neither the value
engineering review nor the constructability review explicitly acknowledged that a GBR only
reduces the risk of changed conditions claims but does not completely eliminate the risk of
such claims. In addition, neither review acknowledged that the likely methods for installing
the secant piles and the microtunnel boring could make it difficult to determine whether the
conditions encountered are actually a change from the conditions described in the GBR.
This is because rendering such a determination may require investigation at the actual
drilling face of any obstructions and it may not be possible to access the drill face if
obstructions are encountered.
An alternative to preparing a GBR is to prepare a Geotechnical Data Report (GDR). The
GDR is a simple statement of the factual information available to the City with no
interpretation. The challenge with providing a GDR for this project is that the available
geotechnical data is limited both in quantity and in quality. The limited budget for
engineering design resulted in only one boring being conducted on the site and that boring
was done using equipment that is widely available and affordable but does not provide
information on the size of boulders encountered. The geotechnical report was prepared by
combining the data from this boring with existing data from borings for the I-184 Bridge.
The borings for the bridge were also completed using methods that do not allow for
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determination of boulder and cobble size. The City has several options for responding to the
recommendations by others to include a GBR in the contract documents.
Bid the Contract with existing data and without a Geotechnical Baseline Report or a
Geotechnical Data Report: This option will likely result in higher bid prices as the
bidders try to compensate for the lack of quantitative data on the size of boulders that
may be encountered in the subsurface. The lack of information may result in the
successful bidder basing their bid on equipment or techniques that are inappropriate
for installation of the secant piles and the microtunnel boring given the subsurface
conditions. If that occurs, the Contractor may seek a claim for additional costs arising
from delays and the mobilization of alternative equipment. The increased cost from
the claim will be in addition to the already higher base bid offered because of the lack
of data regarding subsurface conditions.
2. Obtain additional data and bid the Contract with a Geotechnical Data Report: This
option could result in lower bid prices than Option 1 if the bidders feel that there is
sufficient subsurface data to reduce the risk that the equipment and techniques they
base their bids on may be inappropriate for the subsurface conditions. This would
require two or three additional borings at the location of the wet well and along the
alignment of the microtunnel boring using a technique that quantifies the size of
boulders encountered in the borings. This option does not eliminate the possibility of
a claim arising if the conditions encountered are inappropriate for the equipment and
techniques selected. However, it reduces the probability that inappropriate equipment
and techniques will be selected. Since this option should reduce the risk that bidders
price into their offers, any claims that may arise would likely be added on a lower
base bid price.
3. Obtain additional data and bid the Contract with a Geotechnical Baseline Rebort: This
option spreads the risk between the owner and the contractor by establishing a
baseline of anticipated ground conditions in the contract documents. Additional data,
gathered as described in Option 2, would be a minimum requirement for establishing
a reasonable baseline. An additional boring conducted somewhere along the
microtunnel alignment and below the top of slope, possibly from a barge, may also be
necessary to ensure sufficient data for establishing the baseline. As noted above,
without access to the cutting face, it may be difficult to establish whether conditions
outside those defined in the GBR are actually encountered. The GBR does not
eliminate the possibility of claims and dispute resolution boards have been known to
ignore the GBR in adjudicating disputes.
We recommend Option 2. Including a GDR will assist bidders in determining the approach
and equipment that they can use to successfully construct the wet well and install the raw
water pipe. We further recommend that the additional data be obtained by drilling three
onshore borings to depths of 80 -feet, 100 -feet and 100 -feet using the Rotosonic drilling
technique and a 6 -inch diameter casing. Rotosonic drilling with a 6 -inch casing will allow
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for the collection of a nearly continuous column of material to help quantify the number, size
and depth of boulders encountered during the borings. Work would include about one week
in the field conducting the geotechnical exploration program and several weeks for
geotechnical laboratory testing and preparation of a data report summarizing the results of
the field and laboratory testing program.
It may be possible to also conduct one offshore Rotosonic boring from a barge to a depth of
about 40 ft below the riverbed along the raw water pipe alignment. However the drilling cost
for one offshore boring would approximately equal the total cost for drilling three additional
upland borings and preparing the GDR for those upland borings.
PHASE 3 — BIDDING AND CONSTRUCTION PHASE SERVICES
The work program described herein for Phase 3 and the proposed budget both assume that
the City of Pasco ("City") and a third party Construction Management Consultant will
manage and oversee the bidding and construction phases with Murray, Smith & Associates,
Inc. ("Consultant") having an active role in assisting the City and the City's Construction
Management consultant. The phrase "The City" will be used hereafter to refer collectively to
the City and the City's Construction Management Consultant. It is anticipated that this work
will be provided on a time and expense basis in accordance with MSA's standard schedule of
charges and within budgets established and agreed by this agreement. Consultant work tasks
are described below.
Task 3.1 - Project Management: Work under this task includes coordination of the
construction services that Consultant will provide with City staff, Consultant's in-house and
subconsultant staff, regulatory agencies and City's Construction Management consultant.
Work includes assistance with review of monthly progress reports and project schedules,
briefings to City staff, miscellaneous construction related communications and various
project related meetings not identified in other tasks. Up to 280 hours of engineer time is
allocated to this subtask, based on a construction phase of 18 months duration.
Task 3.2 - Bidding and Award Phase Assistance: Under this task, Consultant will provide
assistance to City during the process of bidding and award for the construction contract.
Consultant's scope of work and associated budget assumes that City staff will: publish the
Invitation to Bid in appropriate media; print and distribute bidding documents and any
addenda to plan centers, prospective bidders, subcontractors and suppliers; maintain and
distribute the plan holders list during the bid period; and provide periodic updates to
Consultant. Consultant will provide the following services to assist the City. Up to 180
hours of engineer time is allocated to this subtask.
Bidder Questions — Respond to questions of bidders, subcontractors, and other
vendors regarding the project and the plans and specifications. Maintain a written
record of any communications regarding any questions during bidding process.
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■ Submittal Reviews — Review and act upon submittals received as required by pre-bid
submittal process.
■ Addenda — Prepare addenda as necessary to clarify the contract documents. City will
issue all addenda to plan holders.
■ Pre-bid Conference — Prepare an agenda for a pre-bid conference and consult with the
City regarding the conference details. Conduct a pre-bid conference, prepare a
conference summary, and distribute the summary to all plan holders and conference
attendees.
■ Evaluation and Recommendation of Award — Assist the City with the evaluation of
the bids. Provide a written recommendation of award for the construction contract.
Task 3.3 — Engineering Services during Construction
Consultant services during construction shall include the following sub -tasks:
3.3.1 Construction Meetings - Attend Preconstruction Conference to answer questions
regarding the contract documents. Attend weekly construction meetings with The
City and the general contractor during active phases of construction and when
requested by The City. Project fee is based on the assumption that Consultant will
attend only two weekly construction meetings in person and participate in all other
construction meetings by telephone. The City will prepare agenda, make invitations,
conduct the meetings, and distribute minutes to all attendees. Consultant shall
provide up to 170 hours of engineer time under this task.
3.3.2 Coordination Meetings — Prior to the beginning of each major construction element,
such as clearwell construction, tunneling, building construction, offsite pipeline
construction, etc., and at The City or Consultant request, prepare for and attend a
construction coordination meeting with The City and the Consultant's design team
staff. Consultant shall attend up to 125 hours of engineer time under this task.
3.3.3 Schedules — The City shall receive, review, and determine the acceptability of any and
all schedules that Contractor is required to submit, including the Overall Progress
Schedule, Schedule of Submittals, and Schedule of Values. Consultant shall assist The
City by providing review of up to 10 schedules under this task to assist with identifying
critical path items within progress schedules.
3.3.4 Baselines and Benchmarks — Consultant shall, as appropriate, establish baselines and
benchmarks for locating the work which in Consultant's judgment are necessary to
enable Contractor to proceed. Detailed construction staking shall be performed by the
Contractor.
3.3.5 Visits to Site and Observation of Construction - In connection with observations of
Contractor's work while it is in progress:
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a. Make visits to the site and attend Project status meetings at intervals appropriate
to the various stages of construction, as Consultant deems necessary, but at least
bi-weekly during active construction periods, to observe the progress and
quality of Contractor's executed work. Such visits and observations by
Consultant are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's
work in progress beyond the responsibilities specifically assigned to Consultant
in this Amendment and the Contract Documents, but rather are to be limited to
spot checking, selective sampling, and similar methods of general observation
of the work. Based on information obtained during such visits and observations,
Consultant shall determine in general if Contractor's work is proceeding in
accordance with the Contract Documents. Consultant shall provide up to 260
hours of engineer time under this task.
b. Consultant shall not, during visits to the site or as a result of the observations of
Contractor's work in progress, supervise, direct, or have control over
Contractor's work, nor shall Consultant have authority over or responsibility for
the means, methods, techniques, sequences, or procedures of construction
selected or used by Contractor, for security or safety on the site, for safety
precautions and programs incident to Contractor's work, nor for any failure of
Contractor to comply with laws and regulations applicable to Contractor's
furnishing and performing the work. Accordingly, Consultant neither guarantees
the performance of any Contractor nor assumes responsibility for any
Contractor's failure to furnish and perform the work in accordance with the
Contract Documents.
3.3.6 Defective Work - Recommend to City that Contractor's work be rejected while it is in
progress if, on the basis of Consultant's observations, Consultant believes that the work
will not produce a completed Project that conforms generally to the Contract
Documents or that it will threaten the integrity of the design concept of the completed
Project as a functioning whole as indicated in the Contract Documents.
3.3.7 Clarifications and Interpretations - Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work.
Such clarifications and interpretations will be consistent with the intent of and
reasonably inferable from the Contract Documents. Consultant shall provide up to 120
hours of engineer time for this task.
3.3.8 Change Orders and Change Proposal Requests - Recommend Change Orders and
Change Proposal Requests to City, as appropriate, and prepare Change Orders and
Change Proposal Requests as required. Consultant shall provide up to 110 hours of
engineer time for this task.
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3.3.9 Shop Drawings and Samples - Review and take appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only
for conformance with the information given in the Contract Documents and
compatibility with the design concept of the completed Project as a functioning whole
as indicated by the Contract Documents. Such reviews and action taken will not extend
to means, methods, techniques, sequences, or procedures of construction or to safety
precautions and programs incident thereto. Consultant shall meet Contractor's submittal
schedule that Consultant has accepted and as identified in the Contract Documents.
Consultant shall provide up to 530 hours for review of submittals and re -submittals
under this task.
3.3. 10 Substitutes and "or -equal" - Evaluate and determine the acceptability of substitute or
"or -equal" materials and equipment proposed by Contractor. Consultant shall review
up to 20 substitution requests under this task.
3.3.11 Contractor's Completion Documents - Consultant shall review maintenance and
operating instructions, certificates of inspection, tests and approvals, Shop Drawings,
Samples and other data as provided under paragraph 3.3.9 and the annotated record
documents. The City shall be responsible for receiving and reviewing schedules,
guarantees, bonds, certificates or other evidence of insurance required by the Contract
Documents which are to be assembled by Contractor in accordance with the Contract
Documents to obtain final payment. The extent of review by Consultant will be limited
as provided in paragraph 3.3.9.
3.3.12 Substantial Completion - After notice from Contractor that Contractor considers the
entire work ready for its intended use, in company with The City and Contractor,
Consultant shall conduct a pre -final inspection to determine if the work is substantially
complete. If after considering any objections of The City, Consultant considers the
work substantially complete, Consultant shall recommend that The City prepare and
deliver a Certificate of Substantial Completion to City and Contractor.
3.3.13 Final Notice of Acceptability of the Work - In company with The City, Consultant shall
conduct a final inspection to determine if the completed work of Contractor is
acceptable so that Consultant may recommend, in writing, final payment to Contractor.
Accompanying the recommendation for final payment, Consultant shall also provide a
Notice of Acceptability of work that the work is acceptable to the best of Consultant's
knowledge, information, and belief and based on the extent of the services provided by
Consultant under this Agreement. The City shall provide necessary certifications to
any permitting authority regarding completion of the work in accordance with approved
plans and specifications.
Consultant shall not be responsible for the acts or omissions of any Contractor, or of any
subcontractors, suppliers, or other individuals or entities performing or furnishing any of the
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work. Consultant shall not be responsible for the failure of any Contractor to perform or
furnish the work in accordance with the Contract Documents.
Upon City's request and upon completion of a signed modification to this amendment to cover
additional scope and fee, Consultant shall furnish or obtain from others additional services of
the types listed below at a fee mutually agreed to by both parties in such modification:
a. Additional or extended services during construction made necessary by (1) emergencies
or acts of God endangering the work, (2) the presence at the Site of any constituent of
concern, (3) work damaged by fire or other cause during construction, (4) a significant
amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the
progress schedule involving services beyond normal working hours, or (6) default by
Contractor.
b. Providing assistance in responding to the presence of any constituent of concern at the
site, in compliance with current laws and regulations.
C. Services in connection with any partial utilization of any part of the work by The City
prior to Substantial Completion.
d. Evaluating an unreasonable claim or an excessive number of claims submitted by
Contractor or others in connection with the work.
e. Preparing to serve or serving as a consultant or witness for The City in any litigation,
arbitration, or other dispute resolution process related to the Project.
Task 3.4 — Operations Support
Consultant shall provide operations support during and after intake and pump station
construction to ensure that City has a fully functional and maintainable facility. Consultant
shall perform the following services:
3.4.1 Operation and Maintenance Manual
Prepare an operation and maintenance manual (O&M) in accordance with City standards for
review and approval by City. Submit a draft to City for review. Revise the manual based on
City comments. Provide three copies of the final O&M manual in 3 -ring binder, along with
electronic files. The manual will include:
a. Manufacturers' literature identifying installation, operation, maintenance, handling,
storage, assembly and other pertinent equipment information for equipment, systems,
subsystems, appliances, materials, finishes and other material furnished and/or
installed on the Project.
b. Narrative of intake and pump station operations and operating conditions.
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c. Intake and pump station maintenance recommendations and requirements.
3.4.2 Start -Up Assistance
Observe and provide technical assistance during the functional testing and startup of the
Project. This will include evaluating pump performance and station operations.
3.4.3 Record Drawings
Consultant shall prepare record drawings based on information provided by Contractor and
City's Project representative, and provide to City one set of permanent record drawings.
Drawings shall be produced on bond in ink. Consultant shall also provide record drawings to
City in digital format on CD-ROM in AutoCAD format.
WORK PERFORMED BY THE CITY DURING PHASE 3
Construction Management Services
The City will provide full time staff for construction management of the General Contractor's work. The
responsibilities of The City for construction management are described below:
• The City shall lead and Consultant shall attend a preconstruction meeting with the Contractor and The
City prior to the commencement of construction and prepare and distribute minutes.
• The City shall perform the following tasks during the construction phase of the Project:
— Act as the liaison between The City, Contractor, and Consultant.
— Conduct weekly progress meetings; prepare and distribute minutes including distribution to
Consultant for all meetings, regardless of whether Consultant attends said meetings.
— Manage, compile, and review daily inspection and documentation reports including distribution to
Consultant.
— Review payment requests.
— Coordinate with Consultant for processing of requests for information (RFIs), design interpretations,
and or changes. Receive Consultant's recommendations and prepare documents based on input from
Consultant and The City.
— Coordinate with Consultant for processing of change requests. Provide Contractor's cost estimates to
Consultant, negotiate with Contractor based on input from Consultant, and prepare final change order
documentation based on input from Consultant and the City's Project Manager.
— Lead and manage dispute resolution process seeking advice from Consultant as needed.
— Prepare substantial completion notice and final punch list based on coordination and consultation
with Consultant.
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— Prepare and issue final close-out documents based on coordination and consultation with Consultant.
• The City shall ensure that proper coordination efforts are in place between the Consultant, The City's
field staff, the Contractor, and City staff.
• The City shall review the Contractor's proposed baseline and monthly progress schedules for contract
compliance and facilitate communication and coordination between Consultant and City.
• The City shall conduct or cause to be conducted all material sampling, laboratory tests, and field and
environmental quality assurance tests at each construction site at frequencies as required in the Contract
Documents. The material testing and acceptance contractor will contracted directly with City of Pasco.
• The City shall consult with the Consultant regarding disapproval or rejection of work believed to be
defective, or that The City believes will not produce a completed Project that conforms to the Contract
Documents or that will prejudice the integrity of the design concept of the completed Project as a
functioning whole as indicated by the Contract Documents.
• The City shall consult with the Consultant as necessary to authorize minor variations in the work from
the requirements of the Contract Documents which do not involve an adjustment in the contract price or
the contract times and are compatible with the design concept of the completed Project as a functioning
whole as indicated by the Contract Documents.
• The City shall consult with City's staff and Consultant to prepare contract change orders to the Contract
Documents for the Contractor and City's review and approval according to authority protocol agreed
upon.
The City shall prepare monthly reports, and make such reports available to Consultant, on the Project
addressing the Contractor's compliance with the project schedule, significant problems encountered or
anticipated, a summary of major work completed during the current month and projected for the next month,
and pending change orders and/or claims.
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COLUMBIA WATER SUPPLY PROJECT
CITY OF PASCO
PROPOSED FEE ESTIMATE
TASK
ESTIMATED FEES
Principal Engineer Engineer Tech. Tech. Tech. Admin Total MSA MSA Consultants
Engineer VII V IV III II II MSA Labor Subconsultants - Labor & Expenses Expenses Total
Hours Fee McMillen HDJ GRI R&W Fee
PHASE 1 - INITIAL EVALUATION, PERMITTING AND LAND ACQUISITION
Task 1 Environmental Permitting
9
52
1
61
$
9,610
$
3,597
$
325
$
13,532
PHASE 1 SUBTOTAL
9
52
0
0
0
0
0
61
$
9,610
$
3,597
$
- $ - $ -
$
325
$
13,532
PHASE 2 - DESIGN AND CONSTRUCTION PERMITTING
Task 4 - Design Services
4.1. Prepare Design for Raw Water Pipeline Replacement
2
16
20
30
22
15
105
$
13,227
$
660
$
1,086
$
14,973
4.2. Prepare Design for Electrical Duct Bank
11
10
10
31
$
4,044
$
400
$
4,444
4.3. Analysis of Raw Water Pump Station Location: Bank Slope versus Upland
2
15
5
22
$
3,151
$
100
$
3,251
4.4. Revisions to Architectural Design
26
28
32
86
$
10,972
$
1,000
$
11,972
4.5. Participate in Constructability Review & Incorporate Comments into Contract Documents
4
26
20
16
66
$
9,028
$
2,838
$
-
$
11,866
4.6. Analysis and Alternatives Development to Reduce the Impacts of Milfoil
1
20
21
$
3,258
$
2,442
$
-
$
5,700
4.7. Design Changes to Reduce Impact of Milfoil on Constructed Works (Optional)
3
12
8
23
$
3,486
$
7,073
$
-
$
10,559
4.8. Incorporate Loan Document Requirements into Bid Documents
2
12
4
18
$
2,532
$
-
$
2,532
4.9. Preparation of 100 Percent Check Set, Review with City and Revisions (Optional)
4
10
10
8
10
42
$
5,228
$
2,673
$
350
$
8,251
4.10. Additional Upland Borings and Preparation of Geotechnical Data Report (Optional)
2
8
10
$
1,588
$ 55,000
$
-
$
56,588
Task 4 Subtotal
20
156
96
30
22
86
14
424
$
56,514
$
15,026
$
660 $ 55,000 $ -
$
2,936
$
130,136
PHASE 2 SUBTOTAL
20
156
96
30
22
86
14
424
$
56,514
$
15,026
1 $
660 $ 55,000 $ -
$
2,936
$ 130,136
City of Pasco Murray, Smith & Associates, Inc.
May 2016 Engineers/Planners
G:\PDX_Admin\Agreements and InsuranceTrime ConsultanAChentsTascoU 1-1287Wmendment No. 3 Mar 2016Wmendment No. 3 Fee Estimate.25May 2016
Columbia Water Supply Project
Page 1
COLUMBIA WATER SUPPLY PROJECT
CITY OF PASCO
PROPOSED FEE ESTIMATE
TASK
ESTIMATED FEES
Principal
Engineer
Engineer Engineer Tech. Tech. Tech. Admin Total
VII V IV III II H MSA
Hours
MSA MSA Consultants
Labor Subconsultants - Labor & Expenses Expenses Total
Fee McMillen HDJ GRI R&W Fee
PHASE 3 - CONSTRUCTIONS SERVICES
Task 3.1 - Project Management during Bidding and Construction
45
90
1
18
153
$
23,346
$
22,671
$
-
$
46,017
Task 3.1 Subtotal
45
90
0
0
0
0
18
153
$
23,346
$
22,671
$
-
$
-
$
-
$
-
$
46,017
Task 3.2 - Bidding and Award Phase Assistance
3.2.1 - Bidders Questions
2
10
12
2
26
$
3,716
$
3,306
$
2,750
$
-
$
9,772
3.2.2 - Prebid Submittal Review
1
6
6
13
$
1,930
$
1,155
$
-
$
3,085
3.2.3 - Addenda
2
10
14
2
28
$
3,992
$
4,070
$
-
$
8,062
3.2.4 - Pre -Bid Conference
2
14
6
2
24
$
3,504
$
253
$
3,757
3.2.5 - Evaluation of Bids, Recommendation of Award
1
4
4
1
10
$
1,428
$
1,612
$
-
$
3,040
Task 3.2 Subtotal
8
44
42
0
0
0
7
10:11$
14,570
$
10,142
$
-
$
-
$
2,750
$
253
$
27,715
Task 3.3 - Engineering Services during Construction
3.3.1 - Construction Meetings
22
100
122
$
19,316
$
8,789
$
506
$
28,611
3.3.2 - Coordination Meetings
8
60
12
6
86
$
12,812
$
7,536
$
1,518
$
21,866
3.3.3 - Schedules
2
10
4
16
$
2,448
$
1,936
$
-
$
4,384
3.3.4 - Baselines and Benchmarks
2
2
4
$
558
$
2,200
$
36
$
2,794
3.3.5 - Site Visits, Construction Observation
30
80
30
140
$
21,800
$
10,519
$
1,650
$
8,800
$
2,200
$
3,036
$
48,005
3.3.6 - Defective Work
7
14
21
$
3,402
$
-
$
3,402
3.3.7 - Clarifications and Interpretations
8
12
35
55
$
8,102
$
9,537
$
2,063
$
-
$
19,702
3.3.8 - Change Orders, Change Proposal Requests
8
16
50
74
$
10,788
$
3,652
$
1,238
$
-
$
15,678
3.3.9 - Shop Drawing Review
30
120
200
350
$
51,420
$
24,431
$
825
$
1,650
$
4,125
$
-
$
82,451
3.3.10 - Substitutes and "or -equal"
4
15
1 20
39
$
5,782
$
3,168
$
1,238
$
-
$
10,188
3.3.11 - Review Contractor's Completion Documents
2
10
14
26
$
3,828
$
2,112
$
-
$
5,940
3.3.12 - Substantial Completion Review
1
14
6
1
22
$
3,244
$
2,200
$
-
$
5,444
3.3.13 - Final Completion
4
18
4
2
28
$
4,200
$
-
$
4,200
Task 3.3 Subtotal
126
471
375
2
0
0
9
983
$
147,700
$
71,680
$
4,675
$
10,450
$
13,063
$
5,096
$
252,664
Task 3.4 - Operations Support
3.4.1 - Operation and Maintenance Manual
4
8
32
4
8
56
$
7,460
$
2,195
$
172
$
9,827
3.4.2 - Start -Up Assistance
6
24
8
2
40
$
6,032
$
2,952
$
2,200
$
603
$
11,787
3.4.3 - Record Drawings
2
6
30
60
40
2
140
$
17,524
$
12,227
$
3,988
$
3,300
$
37,038
$
-
Task 3.4 Subtotal
12
38
70
60
44
0
12
236
$
31,016
$
17,373
$
-
$
-
$
6,188
$
4,075
$
58,652
PHASE 3 SUBTOTAL
191
643
487
62
44
0
46
1473
$ 216,632
$ 121,867
$
4,675
$
10,450
$
22,000
$
9,424
$ 385,048
220
851
583
92
66
86
60
1958
$ 282,756
$ 140,490
$
5,335
$
65,450
$
22,000
$
12,685
$ 528,716
City of Pasco Murray, Smith & Associates, Inc.
May 2016 Engineers/Planners
G:\PDX_Admin\Agreements and InsuranceTrime ConsultanAChentsTascoU 1-1287Wmendment No. 3 Mar 2016Wmendment No. 3 Fee Estimate.25May 2016
Columbia Water Supply Project
Page 2
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
Rick White, Director
Community & Economic Development
FROM: Dave McDonald, City Planner
Community & Economic Development
SUBJECT: Final Plat: Majestia Place (MF# FP 2016-005)
I. REFERENCE(S):
Overview Map
Vicinity Map
Final Plat
June 14, 2016
Regular Meeting: 6/20/16
IL ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve the Final Plat for Majestia Place.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
The preliminary plat for Majestia Place was approved by the Council in June of 2015.
The plat contains 38 lots and is located between Road 90 and Road 92 northerly of
Majestia Lane.
V. DISCUSSION:
Prior to the approval of a final plat, the developer is to either install all infrastructure or
post a bond or other instrument that secures the financing for the infrastructure
improvements. In this case, the developer has provided the City with a bond in an
amount sufficient ($467,493 covers the costs of the outstanding improvements).
The final plat shows and contains information on primary control points, tract
Page 52 of 226
boundaries, dimensions, bearings, lot numbers and other necessary survey data. In
addition, the plat contains the required descriptions, dedication and acknowledgment
and approval sections.
Page 53 of 226
Vicinity
Item: Maj estia Place Final Plat
Applicant: ProMade Construction LLC
Map File #: FP 2016-005
� 1, M.
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n 8,217 S.F. 21 I 15 SET 516" x 30' IRON RE WITH YELLOW
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cb s 8659'17° 111.03' I I r; N ar4B'20' W ROAD90a WLSMIRZOR,
0.73' I 1 I o! (R# FOUND PROPERTY PIN PER SURVEY
p„>o-' N 8ff55'17' E 11+.67" N 8755'17' € 11491 N 8ff58'S5" E 110.01' N 975®'55' E 109.74` I ! REFERENCE NOTED
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33 3Q DEDICATED I` 5 I 1 WLSHIRE DRIVE X X I FOUND SURVEY MONUMENT AS DESCRIBED
61 o 0d I s
I q 1 Qa I
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# 8,418 S.F. 1 �' W tliI 8,308 S.F. 8,283 S.F. In °e _' 4 SllRVEY REFERENCE NUMBER
F- S 89'5517• 111.01` I `r ? u ; 1 AFN AUDITOR FILE NUMBER
N 8655'17' E 114.72' r* N 8655'17' E 114. 1'
lS 06,.�-0'kV I II I I I h$ N Bff56'55' E 110.01' N 8758155' E 109.88' 0 I n SECTION B C DENOTES CURVE DATA, SEE TABLE
SY 324 I� I WI 31 a 1g I + Z I NC648'2C'7W $ $ FO. BRASS NOBRARTH LINE OF LOT5OF COIE'S T9N,R29E I CL CENTERL NE
I ? k+TY 3 18.440 S.F 17 4 g 8,019 S.F. 7,881 S.F. lj�I 1 17 s z ES7AlEs oN CL Rano ea EXIST. EXISITING
SIL ys"s� 1" I I jrl1171 8.279 S.F. I I r 4 FO.. FOUND
8,306 S.F. n
tw 11 I i I 1 P:U.E. PUBLIC UTILITY EASEMENT
I 5 110. 30.00' 30.00' 4.77' 14.51' I
21.86' I
O a1 1 I 1 S.F. SQUARE FEET
N 5'`30.
2'22" W 379.95' r N 8658'55' E 110.01' N 89'58'53' E 169.63' 1 I I
Z W + ci � 30' I I �' I E 5 88.52,22• w (VOL PG.) VOLUME, PAGE
=L, �; y.5� a 20,33• - _70.00' P.U.E HEREBY
U 1 X80•RIONT-aF-WAY VACATED BY (115) cA O '� ^. I - - - - - SECTION OF SECTION SUB -DIVISION UNE
��c ' Y I 91 LOT,- j LaT 2 LOT J' I 12,
'm _ 5 `r - -
el ,0 ash i 1116 TRACTB 6'I 18 8,137 S.F.� EX€ST. RIGHT-OF-WAY
1,717 S.F.8,178 S.F. EXkST, RIGHT-OF-WAY CENTERLINE
i.' •�', V I c J g I
Scale I"= 50'
IF -I - - - LAT BOUNDARY
T
EXI
• -_--- 1 I BSJB' P
________________ _ - - - - z 0 25 50 100
µU1 � - - RIGHT-OF-WAY DEDICATED WITH THIS PLAT
MAJESTIA LANE la airy' 4a4
I. I I MAJESTIA LANE 279.61 _ BASIS OF BEARINGS I - RIGHT-OF-WAY CENTERLINE
- .ui�' 191 5 N 8798'53' E 329.99'' -�I NEW39.5YE ALONG THE NORTH LINE OF THE NORTHEAST PI NEW LOT LINE
I F0. s eRAEE CAR 0 S 1 ?1 °�.� I I QUARTER OF SECTION 8, 7.9N, R.29E, W.M., AS SHOWN P' - -EASEMENT DEDICATED BY THIS PLAT
i --- -- ON
THE
LUDTOROFFRANAGNVILLAGE,PHASE S FILED IN -__._._--------------------------
- - _ __-___-a_,-____....,.__-____---__.___-.____-__T_ -_-__«____- - - - 363, RECORDS OF FENCING SHORT P CURRENTLY UNDER
_. - I VOLUME D OF PLATSAT PAGE HE -- R 1P.T
74,98' 75,01' 7521' 50_35' COUNTY, WASHINGTON I CITY REVIEW
--r - - - 1
E I E Ig I SURVEY REFERENCES
�Y,_ (R1) COLE'S ES7ATE9 {VOL. D, PG. 24 OF PLATS} BY OkNENS
O 1 1 IR2) MEDITERRANEAN VILLAS PHASE 5(VOL. D. PG, 348 OF PLATS) BY DYCK
156N1yaPs 30' 1 37 I LOT 7- LOT 6` Lor s- 1 LL1Tr I w 2 w 3 w a 1 w I (R3) BROADM00R ESTATES PHASE 4(VOL. D. PG. 354 OF PLATS) BY GALVIN
I I 1� i 8,533 S.F. IL 8,527 S.F. g 8,517 S.F. g 8,376 S.F. 1 IR4) HERITAGE VILLAGE PHASE 5 (VOL. D, PG. 363 OF PLATS) BY SHEA
I '+ '• b A I m c I (135) CITY OF PASCO ORDINANCE NO. 4181, AFN 1621421, PASSED 1IfMO14
'SHORT PLAT IS PENDING AND IS $ $ $ $ VERTICAL DATUM
1 CURRENTLY UNDER CITY REVIEW $ I H ,� w 1 H CITY OF PASCO, 3" BRASS CAP AT INTERSECTION OF SANDIFER AND ROAD 1DO
I z (PSI #26-14)ELEVATION=451 A4
----------_____________ _ __ __ __ _____}- 74.97 ls.tlr 73.01 7s.mr I SURVEYOR S CERTIFICATE
________________a_______
N 67'2'30 E 299 98' THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECTION IN CONFORMANCE
WITH THE REQUIREMENTS OF THE SURVEY RECORDING ACT AT THE REQUEST OF SR HOMES, LLC. IN
2016
^' I PORTION OF DUST. 27 UTILITY FAcvENT I I j PRELIMINARY
;I PER (RI) W7HIN THIS PUT TO BE 04!1112016
LN VACATED VIA A SEPARATE OOCLMENT a r PAUL W,P, TOMKINS, PROFESSIONAL LAND SURVEYOR DA7E
$ REGISTRATION NO. 25893
$I o
I z' I • 1 TRACT
1 II I
49,493 S.F. 3D' 3a I 3� ""� CITY OF PASCO SURVEYOR'S CERTIFICATE 'f^ I. PAUL W.P. TOMKINS. REGISTERED ASA PROFESSIONAL LAN➢ SURVEYOR By THE STATE OF WASHINGTON
CURVE TABLE 1G - ^� I Q' N HEREBY CERTIFY THAT THIS PLAT IS A TRUE AND CORRECT REPRESENTATION OF THE LANDS ACTUALLY
II PR 1 Ry SURVEYED AND DESCRIBED HEREIN ANO LOCATED IN A PORTION OF SECTION TIN, R29E, W M SAID
Cl1 1161 73 @0 89'1 29 IS , 758 E 105.35 I « SURVEY HAVING BEEN PERFORMED UNDER MY DIRECTION IN 2016.
-83 25.00 @ 13 93 N 45,2634- W 35.11
I 3@. 2S.Q0 90'48 57 5 44'93 29 W 35.60 - �9 po
3882 25.00 8711 i' S -2709 E 35.11 PRELIMINARY
- ".1gDlsr
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1 5. N' 8 5 0 .94 11 11 I I PAUL W.P. TOMKINS, PROFESSIONAL LAND SURVEYOR DATE
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1 1 N 4805 1.91 _ REGISTRATEON No. 25893
4. 1 29 5 4,T2 8 .21 I 1aK 5 6790'30• w 299.99• 9
- IPM D5 N M 15 E 35.58 ,19 (300.00 ERI) CLIENT: PRO MAGE OONSTflUCRON PROJECT NO.: 3783
I11 .CIT 8715 5 2s 45 E 35.13 I I a :0 µFyp �ytP I I 6115 Burden B[K , Suite E _
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p G I I � 30&WG-3488 CALLBY: ROP CRAMRI BY: ROP SOME: 1'•50
SOUTHEAST CORN€R OF THE 5091547-51291ax
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INdRTFEAST if<_ EB�3' RRASfi CAP. _ S 6730'38` W 660.07' - - 90 A sAN01FUR PARKWAY - 5 6750'38' W 2007.98' - E S 1 G lV G RLA U P
: a ;Plannav +a�'A fMernEl: www-Idp9e55^9ro -�^ CITY: PASCO COUNTY: FRANl(IN SHEET 1 OF
. W 2588.03' a
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Rick Terway, Director
Administrative & Community Services
SUBJECT: Naming of New Parks
I. REFERENCE(S):
June 14, 2016
Regular Meeting: 6/20/16
Proposed Resolution
Excerpt from the April 19, 2016 Park and Recreation Advisory Board Meeting Minutes
Excerpt from the June 2, 2016 Park and Recreation Advisory Board Meeting Minutes
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. , approving the names
of "Mariposa Park" for the new City Park located adjacent to Barbara McClintock
Elementary School and "Tierra Vida Park" for the new City Park located at the Tierra
Vida development.
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
On February 7, 2000, City Council approved Resolution No. 2499, giving the Park and
Recreation Advisory Board the responsibility of making recommendations to City
Council for the naming of City Parks, with City Council making the final
determination.
On April 19, 2016, the Park and Recreation Advisory Board recommended the name
"Mariposa Park" for the new City Park located adjacent to Barbara McClintock
Elementary School.
On June 2, 2016, the Park and Recreation Advisory Board recommended the name
"Tierra Vida Park" for the new City Park at the Tierra Vida development.
V. DISCUSSION:
Page 57 of 226
Staff recommends approval of the proposed resolution.
This item was discussed at the June 13, 2016 Workshop Meeting.
Page 58 of 226
RESOLUTION NO.
A RESOLUTION approving the names of "Mariposa Park" for the new City
Park located adjacent to Barbara McClintock Elementary School and "Tierra Vida
Park" for the new City Park located at the Tierra Vida development.
WHEREAS, the City Park and Recreation Advisory Board has recommended a
name for the new City Parks located adjacent to Barbara McClintock Elementary School
and the Tierra Vida development; and
WHEREAS, considering the best interests of the community, the Advisory Board
has recommended the names "Mariposa Park" and "Tierra Vida Park" for the parks;
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON:
That the new park located adjacent to Barbara McClintock Elementary School be named
"Mariposa Park" and new park located at the Tierra Vida development be named "Tierra Vida
Park."
PASSED by the City Council of the City of Pasco this 20th day of June, 2016.
Matt Watkins
Mayor
ATTEST:
Debra L. Clark
City Clerk
APPROVED AS TO FORM:
Leland B. Kerr
City Attorney
Page 59 of 226
Park & Recreation Advisory Board - Meeting Minutes
Date: 4/19/2016
ATTENDANCE: X Rick Terway
X Molly Harker
X Thomas Davenport
X Roberto Garcia
Nolvia Salinas
I. Call to order Time: 5:34 pm
X Dan Dotta
X Brent Kubalek
X Arthur Job
Edmon Daniels
_Vacant Seat
X Saul Martinez
X Craig Howell
X Jason Ruud
II. Approval of Previous Meeting Minutes:
Minutes Approving: March 3, 2016 Motion: Jason Ruud
Second: Craig Howell Approval Vote: Unanimous
III. Staff Reports
a. Report from Rick Terway
i. Name of Park at Three Rivers Dr/Rd 60
1. Suggested Names were:
• Stadium Park
• Maize Park
• Barbara's Park
• Seahawk Park
• Mariposa Park
• Butterfly Park
2. Board Recommendation is Mariposa Park
Page 60 of 226
Park & Recreation Advisory Board - Meeting Minutes
Date: 6/2/2016
ATTENDANCE: X Rick Terway
X
Dan Dotta
X
Brent Kubalek
X Molly Harker
X
Arthur Job
X
Edmon Daniels
Thomas Davenport
X
Reade Obern
X
Saul Martinez
X Roberto Garcia
X
Dave Milne
X
Jason Ruud
Nolvia Salinas
I. Call to order Time: 5:30 pm
a. Introduction of New Board Members: Dave Milne & Reade Obern
i. Rick gave instructions to Dave and Reed that they will need to view the Public
Records Act Video.
II. Approval of Previous Meeting Minutes:
Minutes Approving: April 19, 2016
a. Robert recommended amending the minutes as follows:
i. Change the word "reading" to "reviewing" under his suggestion recorded in
section IV and add that he suggested new board members take a tour of the
parks.
ii. Add a section "d" under section III.a.i.1. that mentioned the board discussed
the cost to benefit of indoor vs. outdoor aquatics and that the Park Board
thought it important that we design the aquatic facility in such a way that
would keep the facility as close to the black as possible.
Motion to accept minutes with suggested changes: Arthur Job
Second: Jason Ruud Approval Vote: Unanimous
III. Staff Reports
a. Report from Rick Terway
i. Naming of Park at Tierra Vida development
1. Rick explained about Park Impact Fees and how Tierra Vida funded the
park in lieu of paying park impact fees. He noted the name "Tierra Vida
Park" was requested by the residents of the Tierra Vida development.
2. Motion to name the park "Tierra Vida Park" was made by Arthur Job and
seconded by Jason Ruud. The vote was unanimous.
Page 61 of 226
GENERAL FUND OPERATING STATEMENT
THROUGH MAY 2016
ADOPTED YTD % OF APPROVED
2015 2015 TOTAL 2016
BUDGET ACTUAL ACTUAL BUDGET
REVENUE SOURCES
YTD % OF
2016 ANNUAL
ACTUAL BUDGET
TAXES:
113,543
44,597
39.3%
114,323
MUNICIPAL, COURT
PROPERTY
7,159,507
3,628,332
50.7%
7,655,000
3,865,817
SALES
9,090,765
4,559,435
50.2%
11,780,000
4,732,029
PUBLIC SAFETY
1,300,000
512,841
39.4%
1,365,000
559,831
UTILITY
8,349,000
3,571,426
42.8%
8,595,000
3,719,708
OTHER
1,046,000
531,487
50.8%
1,138,000
553,333
LICENSES & PERMITS
1,304,500
1,031,345
79.1%
1,738,400
1,031,753
INTERGOV'T REVENUE
1,566,170
436,243
27.9%
2,122,148
460,534
CHARGES FOR SERVICES
6,224,521
2,288,622
36.8%
6,455,114
2,284,412
FINES & FORFEITS
806,650
455,697
56.5%9
876,600
414,184
MISC. REVENUE
437,465
189,087
43.2%
454,840
222,707
DEBT AND TRANSFERS IN
8,471,423
57,500
0.7%0
1,153,000
59,585
TOTAL REVENUES
45,756,001
17,262,015
37.7%9
43,333,102
17,903,893
BEGINNING FUND BALANCE
6,501,765
9,383,161
10,566,361
17,289,115
TOTAL SOURCES
52,257,766
26,645,176
51.0%
53,899,463
35,193,008
EXPENDITURES:
CITY COUNCIL
113,543
44,597
39.3%
114,323
MUNICIPAL, COURT
1,564,015
614,880
39.3%
1,607,000
CITY MANAGER
1,291,940
571,018
44.2%9
1,447,608
POLICE
14,271,196
5,517,219
38.7%9
14,054,117
FIRE
6,379,042
2,586,069
40.5%
5,602,747
ADMIN & COMMUNITY SVCS
8,047,581
3,169,242
39.4%
8,411,191
COMMUNITY DEVELOPMENT
1,518,261
607,367
40.0%
1,507,525
ENGINEERING
1,839,064
631,469
34.3%
1,765,221
LIBRARY
1,261,686
524,325
41.6%
1,305,200
NON -DEPARTMENTAL
1,408,466
751,616
53.4%
2,648,832
DEBT AND TRANSFERS OUT
10,430,777
444,470
4.3%9
7,752,675
TOTAL EXPENDITURES
48,125,571
15,462,272
32.1%
46,216,439
ENDING FUND BALANCE 4,132,195 11,182,904
TOTAL EXPEND & END FUND BAL 52,257,766 26,645,176
UNRESTRICTED CASH AND
INVESTMENTS:
7,913,929
EXPECTED PERCENTAGE OF REVENUES AND EXPENDITURE, FOR 4 MONTHS
These statements are intended for Management use only.
45,651
606,390
607,964
5,544,156
2,406,762
3,369,073
604,046
713,377
636,322
1,099,796
2,442,609
50.5%
40.2%
41.0%
43.3%
48.6%
59.4%
21.7%
35.4%
47.2%
49.0%
5.2%
41.3%9
65.3%
39.9%
37.7%
42.0%
39.4%
43.0%
40.1%
40.1%
40.4%
48.8%9
41.5%
31.5%
18,076,146 39.1%
7,683,024 17,116,862
53,899,463 35,193,008
5,486,221
42%
Page 62 of 226
AGENDA REPORT
FOR: City Council June 14, 2016
TO: Dave Zabell, City Manager Regular Meeting: 6/20/16
Rick White, Director
Community & Economic Development
FROM: Dave McDonald, City Planner
Community & Economic Development
SUBJECT: Street & Easement Vacation: Street Right -of -Way and Street Easement
between Rd 92 and Rd 96 (MF# VAC 2016-007)
I. REFERENCE(S):
Overview Map
Vicinity Map
Proposed Ordiannce
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
CONDUCT PUBLIC HEARING
MOTION: I move to adopt Ordinance No. , an Ordinance vacating right-of-
way and easements associated with the undeveloped portion of Franklin Road between
Road 92 and Road 96.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
All but one property owners along the north side of Richardson Road between Road 92
and Road 96 and three additional property owners (one on Rd 92 and two on Rd 96)
signed a petition for the vacation of the undeveloped right-of-way and street easements
through their property.
As previously recommended Council set June 20, 2016 as the as the date to consider
the proposed vacation.
V. DISCUSSION:
Page 63 of 226
The properties involved in this vacation request were annexed to the City in 2015.
These properties were developed on approved County short plats that contain
easements reserved for future streets rather than right-of-way. The exception being the
two houses on Road 96. They are served by a undeveloped street right-of-way. The
street easement is located between 270 and 330 feet north of Richardson Road. This
street easement was never developed and is occupied by a few shops and a storage shed
in essentially what are back yards.
Prior to annexation the property owners were working with Franklin County to have
the easements vacated. Rather than scheduling a hearing for a vacation on property
that was soon to be in the City limits the property owners were told by the County to
wait until they were annexed to start the vacation process. Now that the property is in
the City the property owners would like to move forward with the vacation.
The street easements, other easements and street right-of-way do not contain any public
utilities.
The petition for the proposed vacation was submitted to the City prior to the adoption
of Ordinance 4290 that established new procedures for vacations that included
compensation for vacated right-of-way. As a result the new vacation requirements do
not apply to this vacation proposal.
Page 64 of 226
WHEN RECORDED PLEASE RETURN TO:
City of Pasco
Attn: City Planner
525 North 3'
Pasco, WA 99301
ORDINANCE NO.
AN ORDINANCE VACATING RIGHT-OF-WAY AND EASEMENTS
ASSOCIATED WITH THE UNDEVELOPED PORTION OF FRANKLIN ROAD
BETWEEN ROAD 92 AND ROAD 96.
WHEREAS, a qualified petition has been submitted to the City Council of the City of
Pasco requesting vacation of certain public rights-of-way and easements within the City of
Pasco; and
WHEREAS, from time to time in response to petitions or in cases where it serves the
general interest of the City, the City Council may vacate rights-of-way and easements; and
WHEREAS, all steps and procedures required by law to vacate said right-of-way have
been duly taken and performed; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. That the 30 -foot easement for future road across the northern 30 feet of Short
Plat 86-05, as depicted in Exhibit "1" be and the same is hereby vacated.
Section 2. That the 30 -foot easement for future road and the 8 foot utility easement
across the southern 38 feet of Short Plat 93-4, as depicted in Exhibit "1" be and the same is
hereby vacated.
Section 3. That the 30 -foot easement for future road across the northern 30 feet of Short
Plat 97-6 and Lot 1, Short Plat 80-13, as depicted in Exhibit "1" be and the same is hereby
vacated.
Section 4. That the 30 -foot public right-of-way across the southern 30 feet of Lot 1 and
2, Short Plat 2002-15, as depicted in Exhibit "1" be and the same is hereby vacated subject to an
1
Page 67 of 226
access easement being retained solely for ingress and egress benefiting said Lots 1 and 2. The
access easement retained herein shall extended for a distance of 325 feet easterly of the east
right-of-way line of Road 96.
Section 5. That a certified copy of this ordinance be recorded by the City Clerk of the
City of Pasco in and with the office of the Auditor of Franklin County, Washington.
Section 6. This ordinance shall take full force and effect five (5) days after approval, passage
and publication as required by law.
PASSED by the City Council of the City of Pasco, this 201h day of June 2016.
Matt Watkins, Mayor
ATTEST:
APPROVED AS TO FORM:
Debra L. Clark, City Clerk Leland B. Kerr, City Attorney
2
Page 68 of 226
Exhibit Item: ROW & Easements Vacation
Applicant: James Kilgore
#1 File #: VAC 2016-007 N
SITE
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M •1
D \- 9 �1
Legend
® Right of Way
® Easement
1,236.5'
RICHARDSON RD
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Ahmad Qayoumi, Director
Public Works
SUBJECT: Six-year Transportation Improvement Plan 2017-2022
I. REFERENCE(S):
Plan
Project Map
Resolution
June 14, 2016
Regular Meeting: 6/20/16
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
** CONDUCT PUBLIC HEARING **
MOTION: I move to approve Resolution No. adopting the revised and
extended Comprehensive Street, Storm Drain and Bridge Programs for the City of
Pasco.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
Washington cities and counties are required annually to adopt an updated Six -Year
Transportation Improvement Plan (STIP). Update of the STIP is necessary to qualify
for federal and state funding. The proposed plan update includes small and large
projects varying from street overlays, street widening, traffic signal projects, and ADA
improvements to pedestrian facilities, as well as larger projects, such as the Lewis
Street Overpass. These projects are included in the project list and are depicted on the
project map.
The proposed STIP update represents those projects that are anticipated to be needed
within six years. Several projects will need to be coordinated with utility projects,
which could change the actual timing of the projects. Although adoption of the STIP is
Page 70 of 226
a statutory requirement, the plan is not fiscally constrained. The Council will review a
more refined near-term project list as part of the annual Six -Year Capital Improvement
Plan and the annual budgeting process.
The project worksheets provide important project information such as scope, schedule
and potential funding sources. Most of the projects listed will be dependent upon
competitive funding, which, if not available, will impact schedule, scope, or both. Staff
has been successful in obtaining state and federal grants and will continue to
aggressively pursue all avenues.
As presented, the 2017-2022 Six Year Transportation Improvement Plan identifies 39
capital projects totaling $102,170,000. In contrast, the 2016-2021 Six -Year TIP
included 40 projects totaling $96,992,000. Major accomplishments differentiating the
two plans are as follows:
Oregon Avenue Corridor Improvements. Phase 1 of the major principal arterial
is substantially funded by grants (80%). These roadway improvements will
follow after completion of the right-of-way certification, which should be
finalized shortly after completion of the waterline.
Pavement Rating should be substantially completed by the end of 2016.
Transportation Master Plan should be substantially completed by the end of
2016.
New projects in the proposed plan include:
Road 84 Sidewalks.
Rowena Chess School Crossing
Captain Gray School Zone
Multi -use Path from Court Street, near Road 111, along I-182 to Sandifur
Parkway
V. DISCUSSION:
This item was discussed at the June 13, 2016 Council Workshop. The Plan is being
presented to the public this evening in the form of a public hearing.
An adopted plan update is due to Washington State by June 30, 2016.
Page 71 of 226
City of Pasco - Six Year Transportation Improvement Plan Year 2017-2022
6/15/2016
Project Name Location Project Cost Potential Funding Sources
YEAR 2017
V
2017 Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing)
Various Locations
$
750,000.00
Overlay Funds
V
2016-2017 Alley Hard Surface Maintenance & Preservations
Various Locations
$
180,000.00
Local Funds
V
2016-2017 Annual ADA Access Handicap Ramp Retrofit
Various Locations
$
120,000.00
CDBG and Local Funds
8
Argent Road Widening (Construction)
Road 40 to 20th Ave
$
5,000,000.00
LID Funds/STP
16
Burden & Road 60 Traffic Signal (Design)
Burden Blvd and Road 60
$
30,000.00
General/TIF/Overlay
23
Captain Gray School Zone Flashers (Construction)
Court Street from 8th to 14th Ave.
$
70,000.00
Safety and School Routes Grants
13
Chapel Hill (Construction)(including utilities)
Road 68 to Road 84
$
6,000,000.00
TIF/LID/TIB
V
Citywide Traffic Signal Controller Upgrades (Construction)
Various Locations
$
2,200,000.00
STP/Arterial
9
Dual RT SB Road 68 (Construction)
Burden Blvd. to 1-182
$
550,000.00
STP/TIF
22
Lewis Street Downtown Circulation Plan (Design)
2nd Avenue to 10th Avenue
$
500,000.00
Arterial/STP
18
Lewis Street Overpass (Design)
2nd Avenue to Oregon Avenue
$
450,000.00
STP/Arterial
39
Multi -use Path (Design)
Court St along 1-182 to Sandifur Pkwy
$
50,000.00
Safety Grant/STP
12
Oregon Ave (US 397) (Right-of-way) Phase 2
"A" Street to Ainsworth
$
200,000.00
STP/Arterial/Federal Safety Funds
5
Powerline Road Feasibility Plan
Road 52 to Foster Wells Road
$
100,000.00
Arterial Funds
5
Powerline Road 15% Design
Road 52 to Foster Wells Road
$
150,000.00
Arterial Funds
6
Powerline Road 100% Design & Right -of -Way Acquisition
Road 68 to Convention Road
$
200,000.00
Arterial Funds/TIF
14
Rowena Chess School Crossing (Construction)
22nd Avenue
$
43,000.00
Safety and School Routes Grants
15
Sandifur Parkway (Design)
Road 52 to Road 60
$
60,000.00
TIF/STP
7
Wrigley Drive Extension (Design & Construction)
Wrigley Drive
$
100,000.00
Arterial/TIF
19
20th Avenue Safety Improvements (Construction)
Lewis Street to Sun Willows Blvd.
$
1,700,000.00
STP/Arterial/Federal Safety Funds
17
Road 68 Triple Right (Design)
Road 68/West Bound Off Ramp
$
500,000.00
STP/Arterial
17
Road 68 Triple Right (Design & Construction)
Road 68/West Bound Off Ramp
$
350,000.00
STP/Arterial
25
Road 68 & Court Street Signal (Construction)
Road 68 to Court Street
$
300,000.00
TIF Funds
11
Road 84 Sidewalks (Design and Construction)
Argent Road to Massey Drive
$
162,000.00
Safety and School Routes Grants
$ 19, 765, 000.00 1 TOTAL FOR 2017
v
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1 of 3
Project Name ILocation Project Cost jPotential Funding Sources
YEAR 2018
V
2018 Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing)
Various Locations
$
750,000.00
Overlay Funds
8
Argent Road Widening (Construction)
Road 40 to 20th Ave
$
500,000.00
LID Funds/STP/TIB
21
Downtown Street Construction
Lewis St., Columbia St., 3rd & 4th Ave.
$
400,000.00
STP/CDBG
22
Lewis Street Downtown Circulation Plan (Construction)
Lewis (3rd to 5th), Columbia (3rd to 5th)
$
2,000,000.00
STP/CDBG/TIB/Arterial
18
Lewis Street Overpass Design & NEPA Update
2nd Avenue to Oregon Avenue
$
200,000.00
STP/State/TIB/TIGER/FASTLANE
39
Multi -use Path (Construction)
Court St along 1-182 to Sandifur Pkwy
$
500,000.00
Safety Grant/STP
12
Oregon Ave (US 397) Phase II (Construction)
"A" Street to Ainsworth Ave
$
2,530,000.00
STP/LID Funds
28
Sacajawea Heritage Trail/Levee (Construction)
Road 52 to Road 72
$
850,000.00
General/STP/WA Grant
15
Sandifer Parkway (Construction)
Road 52 to Road 60
$
150,000.00
TIF/STP
38
Sidewalk on Sylvester Street Overpass
Sylvester Street at US 395 Overpass
$
1,500,000.00
TIB/Safety/STP
10
I-182 Feasibility Traffic Study & Environmental Study
US 395 to Road 68
$
450,000.00
Arterial/TIF/STP
17
Road 68 Triple Right (Construction)
Road 68/West Bound Off Ramp
$
1,000,000.00
STP/Arterial
20
Road 68 Widening - South of 1-182 (Design)
1-182 to Argent Road
$
250,000.00
Arterial
11,080,000.00 I TOTAL FOR 2018
YEAR 2019
V
2019 Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing)
Various Locations
$
750,000.00
Overlay Funds
V
2018-2019 Alley Hard Surface Maintenance & Preservations
Various Locations
$
200,000.00
Local Funds
V
2018-2019 Annual ADA Access Handicap Ramp Retrofit
Various Locations
$
120,000.00
CDBG and Local Funds
27
Argent & Road 100 Traffic Signal (Design & Construction)
Argent Road and Road 100
$
350,000.00
TIF Funds
29
Heritage Ave & "A" Street Traffic Signal
Heritage Ave and "A" Street
$
300,000.00
STP/Arterial
22
Lewis Street Downtown Circulation Plan (Construction)
Lewis (3rd to 5th), Columbia (3rd to 5th)
$
500,000.00
CDBG/TIB
18
Lewis Street Overpass (Construction)
2nd Ave to Oregon Street
$
15,000,000.00
WA State Transportation Funds
30
Lewis St & Heritage Ave Traffic Signal
Lewis St and Heritage Ave
$
300,000.00
STP/Arterial
26
Off Ramp at Road 44 WB (Design)
Road 44 & I-182
$
200,000.00
Arterial/Overlay/STP
15
Sandifur Parkway (Construction)
Road 52 to Road 60
$
250,000.00
TIF/STP
10
I-182 Feasibility Traffic Study & Environmental Study
US 395 to Road 68
$
200,000.00
Arterial/TIF/STP
20
Road 68 Widening - South of I-182 (Construction)
Argent Road to I-182
$
600,000.00
TIF/STP
24
Road 76 Overpass - Argent to Burden (Design)
Argent Road to Burden Blvd
$
100,000.00
STP
31
Road 84 & Chapel Hill Traffic Signal
Road 84 and Chapel Hill Blvd
$
300,000.00
STP/TIF
00 1 TOTAL FOR 2019
2 of 3
v
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0
N
N
Project Name Location Project Cost Potential Funding Sources
YEAR 2020
V
2020 Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing)
Various Locations
$
750,000.00
Overlay Funds
18
Lewis Street Overpass (Design, NEPA & Railroad Easement)(Phase 2 Const)
2nd Ave to Oregon Avenue
$
17,000,000.00
State Grant/STP/Arterial
33
Madison Ave & Burden Blvd Traffic Signal
Madison Ave and Burden Blvd
$
350,000.00
TIF Funds
34
Sidewalk on Road 68 Overpass (Design)
I-182 Overpass
$
200,000.00
Arterial/State Grant/STP
32
Road 44 & Burden Traffic Signal
Road 44 and Burden Blvd
$
3509000.00
TIF Funds
20
Road 68 (South of 1-182) (Construction)
1-182 to Argent Road
$
600,000.00
TIF/STP
24
Road 76 Overpass - Argent to Burden (Design)
Argent Road to Burden Blvd
$
500,000.00
STP
36
US -12 & "A" Street (Construction)
US -12 & "A" Street
$
19,750,000.00
TOTAL FOR 2020
YEAR 2021
V
2021 Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing)
Various Locations
$
750,000.00
Overlay Funds
V
2020-2021 Alley Hard Surface Maintenance & Preservations
Various Locations
$
200,000.00
Local Funds
V
2020-2021 Annual ADA Access Handicap Ramp Retrofit
Various Locations
$
120,000.00
CDBG and Local Funds
35
Foster Wells Interchange (Design)
Foster Wells/SR 395
$
500,000.00
State Grant/STP
18
Lewis Street Overpass (Construction)
2nd Ave to Oregon Ave
$
4,000,000.00
State Grant/STP/Arterial
37
Road 100 Widening - South of Chapel Hill (Design & Construction)
Chapel Hill Blvd to Court St
$
1,220,000.00
STP/Arterial
36
US -12 & "A" Street (Design)
US -12 & "A" Street
$
2,000,000.00
State Grant/STP/TIB
36
US -12 & "A" Street (Construction)
US -12 & "A" Street
$
8,790,000.00
TOTAL FOR 2021
$
$
23,615,000.00
102,170,000.00
TOTAL FOR 2022
GRAND TOTAL FOR 6 -YEAR TIP
YEAR 2022
V
2022 Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing)
Various Locations
$
750,000.00
Overlay Funds
V
2022 Alley Hard Surface Maintenance & Preservations
Various Locations
$
100,000.00
Local Funds
V
2022 Annual ADA Access Handicap Ramp Retrofit
Various Locations
$
60,000.00
CDBG and Local Funds
35
Foster Wells Interchange (Design)
Foster Wells/SR 395
$
1,000,000.00
State Grant/STP
5
Powerline Road (Construction)
Road 52 to Foster Wells Road
$
7,000,000.00
Arterial Funds
34
Sidewalk on Road 68 Overpass (Construction)
1-182 Overpass
$
1,025,000.00
Arterial/State Grant/Safety Grant/STP
24
Road 76 Overpass - Argent to Burden (Construction)
Argent Ave to Burden Blvd
$
10,680,000.00
STP/ WA Grant
36
US -12 & "A" Street (Construction)
US -12 & "A" Street
$
3,000,000.00
State Grant/STP
$
$
23,615,000.00
102,170,000.00
TOTAL FOR 2022
GRAND TOTAL FOR 6 -YEAR TIP
3 of 3
CITY OF PASCO
SIX YEAR TRANSPORTATION IMPROVEMENT PROGRAM
YEAR 2017 - 2022 ------
CITY
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# Project Name
# Project Name
# Project Name
# Project Name
V Pavement Preservation Program (Crack Seal, Overlay, Microsurfacing) 11 Road 84 Sidewalks (Design & Construction)
21 Downtown Street (Construction)
31 Rd 84 & Chapel Hill Traffic Signal
V Alley Hard Surface Maintenance & Preservations
12 Oregon Ave (US 397) Phase II (Construction)
22 Lewis Street Downtown Circulation Plan
32 Road 44 & Burden Traffic Signal
V Annual ADA Access Handicap Ramp Retrofit
13 Chapel Hill (Design & Construction)
23 Captain Gray School Zone (Design & Construction)
33 Madison Ave & Burden Blvd Traffic Signal
V Citywide Traffic Signal Controller Upgrades (Construction)
14 Rowena Chess School Crossing (Construction)
24 Road 76 Overpass - Argent to Burden (Design & Construction)
34 Sidewalk on Road 68 Overpass
5 Powerl ne Road Feasibility Plan
15 Sandifur Parkway Widening (Construction)
25 Road 68 & Court Street Signal (Construction)
35 Foster Wells Interchange (Design)
6w Powerline Road (Design & Right -of -Way Acquisition)
16 Burden & Road 60 Traffic Signal (Design)
26 Off Ramp at Road 44 WB
36 US -12 & "A" Street (Construction)
c@ Wrigley Drive Extension (Design & Construction)
17 Road 68 Triple Right WB (Construction)
27 Argent & Road 100 Traffic Signal (Design & Construction)
37 Road 100 Widening - South of Chapel Hill (Design & Construction)
8 Argent Road Widening (Construction)
18 Lewis Street Overpass (Design Update, NEPA, RR Esmt & Construction)
28 Sacajawea Heritage TraWLevee (Construction)
38 Sidewalk on Sylvester Street Overpass
90 Dual RT SB Road 68 (Construction)
19 20th Avenue Safety Improvement (Construction)
29 Heritage Ave & "A" Street Traffic Signal
39 Mufti -use Path (Court Street along I-182 to Sandifer Parkway)
1 I-182 Feasibility Traffic Study & IJR & Environmental Study
20 Road 68 Widening - South of I-182 (Design)
30 Lewis St & Heritage Ave Traffic Signal
IV
RESOLUTION NO.
A RESOLUTION adopting the revised and extended Comprehensive Street, Storm Drain and
Bridge Programs for the City of Pasco.
WHEREAS, RCW 35.77.010 provides for annual revision and extension of the Comprehensive
Street Program of each city and town, after public hearing thereon; and
WHEREAS, it is now time to revise and extend the Comprehensive Street, Storm Drain and
Bridge Programs; and NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO that the City
Council of the City of Pasco hereby adopts the revision and extension of the Comprehensive Street,
Storm Drain and Bridge Programs for the ensuing six years as attached hereto and labeled "Six -Year
Transportation Improvement Plan 2017 - 2022" incorporated by this reference as though fully set forth
herein; and
Be It Further Resolved, that the Comprehensive Street, Storm Drain and Bridge Programs shall
be filed with the Benton -Franklin Council of Governments and the State of Washington.
PASSED by the City Council of the City of Pasco this 20th day of June, 2016.
Matt Watkins
Mayor
ATTEST:
Debra L. Clark
City Clerk
APPROVED AS TO FORM:
Leland B. Kerr
City Attorney
Page 76 of 226
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Stan Strebel, Deputy City Manager
SUBJECT: PMC Title 15 (Telecommunications) Amendments
I. REFERENCE(S):
Proposed Ordinance
June 14, 2016
Regular Meeting: 6/20/16
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to adopt Ordinance No. , amending Sections 15.10.020
"Definitions", and Section 15.80.020 "Application and Review Fee"; Creating Section
15.40.030 "Cable Franchise", and Creating Chapter 15.95 "Cable Systems and Open
Video Systems" regulating the occupancy and use of Public Rights -of -Way by Cable
systems and open video systems, providing for establishment of customer service
standards; establishing franchise and licensing requirements for operators of such
systems and prescribing minimum charges, terms, and conditions for and upon the
construction, maintenance, and repair of such systems and, further authorize
publication by summary only.
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
The City has been in the process of renewing the non-exclusive cable franchise
(contract) with Charter Communications for cable television service.
As part of the renewal and negotiation process, the consultant, The Buske Group, has
recommended updating PMC Title 15, last amended in 1998, to more closely fit with
the proposed Charter franchise language, as well as possible future franchise needs.
V. DISCUSSION:
While the changes in Title 15 may seem lengthy, much of this language would be
captured in some form in every new franchise agreement. Since franchise agreements
Page 77 of 226
are negotiated documents, the possibility exists of changing City right-of-way
requirements depending on a number of factors during the renewal (or first-time
application) process. The amendments will help insure that Charter and potential new
cable providers meet the same requirements.
This item was discussed at the June 13 Council Workshop meeting. Staff recommends
Council adopt the attached Ordinance.
Page 78 of 226
ORDINANCE NO.
AN ORDINANCE of the City of Pasco, Washington, Amending Sections
15.10.020 "Definitions", and Section 15.80.020 "Application and Review Fee";
Creating Section 15.40.030 "Cable Franchise", and Creating Chapter 15.95
"Cable Systems and Open Video Systems" regulating the occupancy and use of
Public Rights -of -Way by Cable systems and open video systems, providing for
establishment of customer service standards; establishing franchise and licensing
requirements for operators of such systems and prescribing minimum charges,
terms, and conditions for and upon the construction, maintenance, and repair of
such systems.
WHEREAS, the City of Pasco wishes to promote the availability of high-quality and
diverse cable services to City residents, businesses, the City of Pasco, and other public
institutions; and to promote the availability of diverse information resources to the community,
including through the development of advanced systems that can support public, educational, and
governmental programming and high-speed access to the Internet; and
WHEREAS, the City of Pasco wishes to provide opportunities to the public to obtain
access to cable system facilities for the purpose of disseminating and receiving information; to
promote competitive cable rates and services; to take advantage of opportunities presented by
cable and open video systems to provide for more open government; to enhance educational
opportunities throughout the community and provide opportunities for building a stronger
community; and to allow flexibility to respond to changes in technology, Subscriber interests,
and competitive factors that will affect the health, welfare, and well-being of the community; and
WHEREAS, in light of federal and state law, and the changes to local procedures
required by them, the City of Pasco finds that it is necessary to enact the following requirements
and further finds it appropriate to apply the provisions hereof to existing cable television
franchisees, permittees, and licensees to the degree permitted by applicable law; and
WHEREAS, the City has spent substantial time and resources investigating the needs of
the community providing, opportunities for public participation and consulting with industry
professionals in an effort to ensure that the provision of cable services in the community is
carried out consistent with the substantial amount of Federal and State regulations in this field,
and in such a way that serves City residents; and
WHEREAS, the City of Pasco finds that it is in the interest of the public to franchise and
to establish standards for franchising cable operators in a manner that promotes these objectives
and otherwise protects the public interest. NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
SECTION 1. That Section 15.10.020 entitled "Definitions" of the Pasco Municipal Code
shall be and hereby is amended and shall read as follows:
Ordinance - Title 15
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15.10.020 DEFINITIONS. For the purpose hereof, and the interpretation and enforcement
thereof, the following words and phrases shall have the meanings given herein, unless the context of
the sentence in which they are used shall indicate otherwise. When not inconsistent with the context,
words used in the present tense include the future tense; words in the plural number include the
singular number; and words in the singular number include the plural number; and the masculine
gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is
permissive. Unless otherwise expressly stated, words not defined herein shall be construed
consistent with Title 47 of the United States Code, and, if not defined therein, their common and
ordinary meaning. References to governmental entities (whether persons or entities) refer to those
entities or their successors in authority. If specific provisions of law referred to herein are
renumbered, then the reference shall be read to refer to the renumbered provision. References to
laws, ordinances or regulations shall be interpreted broadly to cover government actions, however
nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or
amended.
A) "Affiliate" means a person, who (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership or control with another person.
B) "Applicant" means any person or entity that applies for any right -of way permit,
franchise, lease, or other permit pursuant hereto.
C) "Application Fee" means the charge specified in Chapter 15.80 herein, and designed
to recover the City's actual costs in processing applications for any right -of way permit, franchise,
lease, or other permit pursuant hereto, including applications for the transfer thereof.
D) "Cable franchise" means a franchise for providing cable service.
E) "Cable service" for- the pwpese hereof shall hwe the same meaning pr-evided by4he
Cable A,., and shall mean- means:
1) The one-way transmission to subscribers of (i) video programming, or (ii)
other programming service; and:
2) Subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
F) "Cable system" means a facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to provide cable
service which includes video programming and which is provided to multiple subscribers within a
community, but such term does not include:
Ordinance - Title 15
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1) A facility that serves only to retransmit the television signals of one or more
television broadcast stations;
2) A facility that serves subscribers without using any public right-of-way
within the City of Pasco;
3) A facility of a common carrier which is subject, in whole or in part, to the
provisions of Title H (Common Carriers) of the Communications Act of 1934, as amended,
except that such facility shall be considered a cable system to the extent such facility is used
in the transmission of video programming directly to subscribers, unless the extent of such
use is solely to provide interactive on -demand services;
4) Any facilities of any electric utility used solely for operating its electric
utility systems; or
5) An open videe system OVS that is certified by the FCC.
A reference to a Cable System includes pedestals, nt enelesiffes (sue as equipm�r*
eabinets), amplifier -s, power pards, nodes, eables, fiber apties and other- equipment neeessar-y to
fate the ,.able syste . the Cable System as a whole, or any part thereof, including all facilities,
pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.
G) "City" means the City of Pasco, Washington, and all departments, divisions,
employees, and agencies thereof.
H) "City property" means and includes all real property owned by the City, other than
public streets and utility easements as those terms are defined herein, and all property held in a
proprietary capacity by the City, which are not subject to right-of-way use permitting and
franchising as provided herein.
I) "Communications carrier" means and includes every person that directly or
indirectly owns, controls, operates or manages plant, equipment or property within the City, used or
to be used for the purpose of offering communications service.
J) "Communications facility" means a device which alone or as part of an aggregation
of devices is capable of transmitting signals from place to place.
K) "Communications operator" means a person:
1) Who provides service over a communications system and directly or through
one or more affiliates owns a significant interest in such facility; or
2) Who otherwise controls or is responsible for, through any arrangement, the
management and operation of such a facility. A person that operates under agreement a
Telecommunications System or a specific portion of a Telecommunications System to
provide Telecommunications Services shall be treated as an Operator for purposes hereof.
Ordinance - Title 15
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L) "Communications provider" means and includes every person who provides
communications services over communications facilities without any ownership or management
control of the facilities.
M) "Communications system" refers to a telecommunications system, but does not
include a cable system or open video system, as said terms are defined herein or in applicable
federal law, to the extent the system is used to provide cable service or open video system service as
said terms are defined herein or in applicable federal law.
N) "Council" means the City Council of the City of Pasco, Washington acting in its
official capacity.
O) "Emergency" means a condition of imminent danger to the health, safety, and
welfare of property or persons located within the City including, without limitation, damage to
persons or property from natural consequences, such as storms, earthquakes, riots or wars.
P) "Excess capacity" means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the public way that is or will be available
for use for additional communications facilities.
Q) "FCC" or "Federal Communications Commission" means the Federal administrative
agency, or lawful successor, authorized to regulate and oversee telecommunications, cable, and
open video carriers, services and providers on a national level.
R) "Fiber Optics" means the technology of guiding and projecting light for use as a
communications medium.
S) "Franchise" shall mean the initial authorization, or renewal thereof, granted by the
City to an operator of a telecommunications system, cable system, or an open video system
hereunder giving the operator the non-exclusive right to occupy the space in, under, over or across
public ways of the City to provide a specified service within a franchise area. Any franchise shall be
issued in the form of an ordinance of the City, and must be accepted by the franchisee to become
effective in the time and manner specified in the City Charter, Pasco Municipal Code, or the
Franchise ordinance. Such franchise shall not include or be a substitute for:
1) Any other permit or authorization required for the privilege of transacting
and carrying on a business within the City required by the ordinances and laws of the City;
2) Any permit, agreement or authorization required in connection with
operations on or in public streets or property, including by way of example and not
limitation, construction and street cut permits;
3) Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by the Franchise including,
without limitation, permits and agreements for placing devices on or in poles, conduits,
other structures, or railroad easements, whether owned by the City, or a private entity; or
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4) The right to place devices in the right-of-way, such as pay telephones, for
end user use in terminating or originating transmissions. By way of example, and without
limiting the foregoing, this Title shall not be read to diminish or in any way affect the
authority of the City to control and charge for the use of its real estate, fixtures or personal
property. Therefore, any person who desires to use such property must obtain additional
approvals, franchises, or agreements for that purpose, as may be required by the City.
T) "Franchise Area" means the area of the City that a franchisee is authorized to serve
by the terms of its franchise or by operation of law.
U) "Franchisee" means the person, firm or corporation to whom or which a franchise,
as defined in this Section, is granted by the Council hereunder and the lawful successor, transferee
or assignee of said person, firm or corporation subject to such conditions as may be defined herein.
V) "Gross Revenues", except as provided in PMC 15.95.020(5) as it specifically relates
to Cable Franchises, shall have the meaning set forth in Chapter 5.32 of the Pasco Municipal Code
and/or an applicable franchise agreement under which a franchise fee is collected based upon the
franchisee's gross revenues.
W) —vpe-nVide6System" �—or-refers to a f4eility E9irsiJtH3g-of set of
transmission paths and assoeiated signal > >
and eontr-ol equipmefA that +"S
designed to pfovide Cable > >
Whieh is pfovided to
its sueeessor- has eeffified as eempliant with Part 76 of its fules, 47
., Paft 76,
as amended from
time to time "Open Video System" or "OVS" means an open video system as defined in FCC
rules, 47 CFR § 76.1500, that has been certificated by the FCC under 47 CFR § 76.1502 to serve
an area that includes the City. A reference to an OVS includes pedestals, equipment enclosures
(such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other
equipment necessaroperate the OVS, or installed in conjunction with the OVS.
X) "Open Video System Service" or "OVS Service" means video programming by
means of an Open Fide^ Sy4e OVS.
Y) "Other ways" means the highways, streets, alleys, utility easements or other rights-
of-way within the City, but under the jurisdiction and control of a governmental entity other than the
City.
Z) "Overhead facilities" refers to electric utility and communications facilities located
above the surface of the ground, including the underground supports and foundations for such
facilities.
AA) "Person" means and includes corporations, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and individuals and
includes their lessors, trustees and receivers, but not the City.
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AB) "Private Communications System" means a facility placed in whole or in part in the
public rights-of-way for the provision of communications in connection with a person's business,
but not encompassing in any respect the provision of telecommunications services.
AC) "Private Communications System Owner" means a person that owns or leases a
private communications system.
AD) "Property of franchisee" means all property owned, installed or used by a franchisee
in the conduct of its business in the City under the authority of a franchise granted pursuant hereto.
AE) "Proposal" means the response, by an individual or organization, to a request by the
City regarding the provision of communications services; or an unsolicited plan submitted by an
individual or organization seeking to provide communications services in the City.
AF) "Public street" means any highway, street, alley or other public right of way for
motor vehicle travel under the jurisdiction and control of the City which has been acquired,
established, dedicated or devoted to transportation purposes. For the purposes of this Section, the
term "alley" shall have its ordinary meaning and shall generally be considered to mean a public
right-of-way which affords a secondary means for vehicular or utility access to abutting property
and which is not intended for general traffic circulation.
AG) "Public right-of-way" or "Public way" means and includes the public streets and
easements which, under the City Charter, the Pasco Municipal Code, City ordinances, and
applicable laws, the City has authority to grant franchises, permits, or leases for use thereof, or has
regulatory authority thereover, and as may be more specifically defined in the franchise, permit, or
lease granting any right to or use thereof. Public ways for the purpose hereof do not include
buildings, parks, poles, or similar facilities or property owned by or leased to the City, including, by
way of example and not limitation, structures in the public way such as utility poles and light poles.
AH) "Reseller" refers to any person who resells a telecommunications service, for which
he makes a separate charge, provided over a telecommunications system, where that person does not
own or lease the underlying telecommunications system used for the transmission.
Al) "Right -of -Way Use Permit" refers to the legal authorization, terminable at will, to
use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or
repair a communications facility or a private communications system. The term right-of-way use
permit shall not mean or include:
1) Any other permit or authorization required for the privilege of transacting
and carrying on a business within the City required by the ordinances and laws of the City;
2) Any permit, agreement, or authorization required in connection with
operations on public streets or property, including by way of example and not limitation,
construction or street cut permits;
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3) Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by the right-of-way use permit
including, without limitation, permits and agreements for placing devices on or in poles,
conduits, other structures, or railroad easements, whether owned by the City, or a private
entity; or
4) The right to place devices in the right-of-way, such as pay telephones, for
end-user use in originating and terminating transmissions.
AJ) "State" means the State of Washington.
AK) "Surplus space" means that portion of the usable space on a utility pole, or in a duct
or conduit which has the necessary clearance from other users, as required by federal or state orders
and regulations, to allow its use by a communications carrier for a pole attachment or other
communications facility.
AL) "Telecommunications facilities." See "Telecommunications System."
AM) "Telecommunications Service" or "Communications Service" means the
transmission for rent, sale or lease, or in exchange for other value received, of information in
electronic or optical form, including, but not limited to, voice, video, or data, whether or not the
transmission medium is owned by the provider itself. Telecommunications service includes
telephone service but does not include cable service, open video system service, or over -the -air
broadcasts to the public -at -large from facilities licensed by the Federal Communications
Commission or any successor thereto.
AN) "Telecommunications System" means a tangible facility that is used to provide one
or more telecommunications services, any portion of which occupies public rights-of-way. The term
telecommunications system by way of example, and not limitation, includes wires, equipment
cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures, and associated
and appurtenant facilities used to transmit telecommunications signals. The term
telecommunications system includes all devices mounted on light poles in the public rights-of-way
through which telecommunications services are originated or terminated. A cable system is not a
telecommunications system to the extent that it provides only cable service; an open video system is
not a telecommunications system to the extent that it provides only video services.
AO) "Transfer" means any transaction in which:
1) All or a portion of the communications system is sold or assigned (except a
sale or assignment that results in removal of a particular portion of the facility from the
public rights-of-way);
2) There is any change, acquisition, or direct or indirect transfer of control of
the franchisee or right-of-way use permit holder; or
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3) The rights and/or obligations held by the franchisee or right-of-way use
permit holder under the franchise or right-of-way use permit are transferred, sold, assigned, or
leased, in whole or in part, directly or indirectly, to another parry. It will be presumed that any
transfer or cumulative transfer of voting interest of 10 percent or more is transfer of control
within the meaning of Subsection 2.
AP) "Underground facilities" means utility and communications facilities located under
the surface of the ground, excluding the underground foundations or supports for overhead facilities.
AQ) "Usable space" means the total distance between the top of a utility pole and the
lowest possible attachment point that provides the minimum allowable vertical clearance as
specified in any federal or state orders and regulations.
AR) "Utility easement" means any easement owned by the City and acquired,
established, dedicated or devoted for public utility purposes not inconsistent with communications
facilities.
AS) "Utility facilities" means the plant, equipment and property, including but not limited
to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or
above the surface of the ground within the public ways of the City and used or to be used for the
purpose of providing utility, communications services. (Ord. 3287 Sec. 1, 1998.)
SECTION 2. That Section 15.40.030 entitled "Cable Franchise" of the Pasco Municipal
Code shall be and hereby is created and shall read as follows:
15.40.030 CABLE FRANCHISE. A franchise shall be required for providing cable
service. Cable franchises are governed by the provisions of Chapter 15.95. In the event of any
conflict between Chapter 15.95 and any other provision of Title 15, the provision of Chapter 15.95
shall be controlling.
SECTION 3. That Section 15.80.020 entitled "Application and Review Fee" of the Pasco
Municipal Code shall be and hereby is amended and shall read as follows:
15.80.020 APPLICATION AND REVIEW FEE.
A) An applicant shall pay all reasonable costs incurred by the City related to the
processing of any pplication for a Right -of -Way Use Permit, Franchise, or Facilities Lease.
pay an appheation and review fee of three htmdr-ed dollars ($300.00). In the event that the-C4ty
Engineer- deteFmines that the engineering, legal, administr-ative, or- other- eests asseeiated wi
the expenses reasonably inetiffed by the City i— ... 6the appheation. Reasonable processing
costs shall include, but not be limited to, publication costs and the costs for services rendered by
any CitMployee, agent or representative, including consultants and attorneys.
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B) The initial deposit of the application fee for the consideration of an application for
issuance, renewal, Transfer, or modification of a franchise shall be in the amount of $1,000.00,
which deposit shall be submitted with the application. The City of Pasco may, as costs are
incurred, draw upon the deposit to recover its administrative costs, including, but not limited to,
publication costs, and the reasonable cost of services rendered by employees, agents, and
representatives, including consultants and attorneys retained by the City related to the City's
consideration and processing of a franchise. The City, at any time, may require the applicant to
deposit additional sums if it appears that the initial deposit or subsequent deposits will be
exhausted prior to the final action by the City relating to the consideration by the City of an
application for issuance, renewal, transfer, or modification of a franchise. The applicant will not
be entitled to further consideration by the City of Pasco of its requested action until such time as
the additional deposit required by the City has been deposited with the City. Final payment of the
gpplication fee balance is due within thirty (30) days of notice of the charges. In the event the
amount of the deposit of an applicant is in excess of the amount of the administrative expenses of
the City related to the action requested, then the applicant shall be entitled to a return of any such
excess amount. The application fee is in addition to any required business license fee set forth in
PMC 3.07.050 or any other section of this Code.
SECTION 4. That a new Chapter 15.95 entitled "Cable Systems and Open Video
Systems" of the Pasco Municipal Code shall be and hereby is created and shall read as follows:
15.95
CABLE SYSTEMS AND OPEN VIDEO
S ecti on s
15.95.010
Purpose.
15.95.020
Definitions.
15.95.030
Franchise Required.
15.95.040
Exceptions to Franchise Requirement.
15.95.050
Failure to Obtain a Franchise.
15.95.060
Existing Franchises.
15.95.070
Form of Franchise.
15.95.080
Filing an Application.
15.95.090
Application Fee.
15.95.100
Nature of Franchise.
15.95.110
Administration of Ordinance; Adoption of Regulations.
15.95.120
Transfers.
15.95.130 General Conditions Upon Construction, Operation and Repair and Use of the
Public Rights -of -Way.
15.95.140 Protection of the City and Residents.
15.95.150 Enforcement and Remedies.
15.95.160 Books and Records.
15.95.170 Reports.
15.95.180 Maps Required.
Ordinance - Title 15
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15.95.190 Other Records Required.
15.95.200 Exemptions.
15.95.210 Privacy.
15.95.220 Procedures for Paying Franchise Fees and Fees in Lieu of Franchise Fees.
15.95.230 Controlling Law
15.95.240 Special Rules Applicable to Cable Systems.
15.95.250 Open Video Systems.
15.95.260 Captions.
15.95.270 Calculation of Time.
15.95.280 Connections to Cable System; Use of Antennae.
15.95.290 Discrimination Prohibited.
15.95.300 Transitional Provisions
15.95.310 Application of this Chapter.
15.95.320 Severability.
15.95.010 PURPOSE. The purpose of this title is to provide an independent
regulatory scheme for cable franchise application, review, and approval which unique regulatory
scheme is necessitated by the significant amount of Federal and State involvement in this field,
and furthermore, necessary to ensure that City residents receive the most benefit from the
provision of cable services in the community.
A) Establish a local policy concerning cable systems and open video systems that use
the public rights-of-way.
B) Promote the availability of diverse, multimedia information resources to the
community over cable systems and open video systems; enhance educational opportunities
throughout the community and build a stronger community.
C) Encourage the provision of advanced and competitive cable or open video system
services on the widest possible basis to the businesses, institutions and residents of the City.
D) Encourage economic development while preserving aesthetic and other
community values and prevent proliferation of above -ground facilities.
E) Encourage universal access to video programming services for all residents and
businesses.
15.95.020 DEFINITIONS. For the purposes of this Chapter only, the following
terms, phrases, words, and abbreviations shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future tense; words in
the plural number include the singular number; and words in the singular number include the
plural number; and the masculine gender includes the feminine gender. The words "shall" and
"will" are mandatory, and "may" is permissive. Words not defined in this Chapter shall have the
same meaning as in PMC § 15.10.20, and if not defined therein, the same meaning as in Title VI
of the Communications Act of 1934, as amended, 47 USC §§ 521 et.seq., and, if not defined
Ordinance - Title 15
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therein, their common and ordinary meaning. References to governmental entities (whether
persons or entities) refer to those entities or their successors in authority. If specific provisions
of law referred to herein are renumbered, then the reference shall be read to refer to the
renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly
to cover government actions, however nominated, and include laws, ordinances and regulations
now in force or hereinafter enacted or amended.
A) "Access," "PEG access," or "PEG use" refers to the availability of a cable system
or open video system for public, education or government use (including institutional network
use) by various agencies, institutions, organizations, groups, and individuals, including the City
of Pasco and its designated access providers, to acquire, create, and distribute programming not
under a franchisee's editorial control, including, but not limited to:
1) "Public access" or "Public use" means access where organizations,
groups, or individual members of the general public, on a non-discriminatory basis, are
the primary or designated programmers or users having editorial control over their
communications.
2) "Educational access" or "Educational use" means access where
educational institutions are the primary or designated programmers or users having
editorial control over their communications.
3) "Government access" or "Government use" means access where
government institutions or their designees are the primary or designated programmers or
Users having editorial control over their communications.
4) "PEG" means Public, Educational, and Government Access collectively.
C) "Basic service" means any service tier regularly provided to all Subscribers which
includes the public, educational, and government access channels and the retransmission of local
television broadcast signals.
D) "Cable Act" means Title VI of the Communications Act of 1934, 47 U.S.C. §§ 521
et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996 and as further amended from time to
time.
E) "Cable Communications System" refers to open video systems (OVS) and cable
systems.
F) "Cable Franchise" means a franchise for providing cable service.
G) "Channel" means a time or frequency slot or technical equivalent on the Cable
System, discretely identified and capable of carrying full motion color video and audio, and may
include other non -video subcarriers and digital information.
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H) "City Manager" means the City Manager or the City Manager's designee.
I) "Construction, operation or repair" and similar formulations of that term mean the
named actions interpreted broadly, encompassing, among other things, installation, extension,
maintenance, replacement of components, relocation, undergrounding, grading, site preparation,
adjusting, testing, make-ready, and excavation.
J) "Downstream channel" means a Channel designed and activated to carry a
transmission from the headend to other points on a Cable Communications System, including
interconnections.
K) "Franchise" refers to an authorization granted by the City to the operator of a cable
communications system giving the operator the non-exclusive right to occupy the space, or use
facilities upon, across, beneath, or over public rights-of-way in the City, to provide cable service
within a franchise area.
L) "Franchisee" or "Grantee" refers to a person holding a Cable Communications
System Franchise granted by the City.
M) "Franchise Fee."
1) In consideration of the grant and exercise of a franchise to construct, install,
operate, or provide services using facilities in the public rights-of-way, a franchisee shall
pay to the City a franchise fee expressed as a percentage of gross revenues. The franchise
shall specify the fee to be paid, and the gross revenues to be included in the fee calculation.
If a franchise granted pursuant to this Chapter specifies a franchise fee established as the
result of limiting applicable law, the City shall have the option to renegotiate the amount of
the franchise fee upon a change in applicable law. Nothing herein requires a person to pay
amounts in excess of any limits that may be established by state or federal law.
2) UVPP Fees. A UVPP (unaffiliated video program provider) that provides
services using a cable communications system for which charges are assessed to
subscribers, but are not received by the franchisee, shall pay a fee in lieu of a franchise fee
on such service pursuant to the franchise fee calculation contained in the franchisee's
franchise.
N) "Gross Revenues" means all cash, credits, property, or other consideration of any
kind or nature received directly or indirectly by a franchisee or its affiliates, from any source
whatsoever arising from, attributable to, or in any way derived from a franchisee's operation of a
cable communications system to provide cable service within the franchise area. Gross Revenues
include, but are not limited to, fees charged to subscribers for basic service; fees charged to
subscribers for any optional, premium, per -channel, or per -program service; monthly fees charged
to subscribers for any tier of service other than basic service; installation, disconnection, re-
connection, and change -in-service fees; leased channel fees; fees, payments, or other payment
received as consideration from programmers for carriage of programming on the cable
communications system; converter rentals or sales; studio rental, production equipment, and
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personnel fees; advertising revenues, including a per capita share of advertising revenues for
advertising carried on more than one cable communications system; revenues from home shopping
channel channels; sales of programming guides; late fees; and such other revenue sources as may
now exist or hereafter develop. The definition shall be interpreted in a manner which manner that
permits the City to collect the maximum franchise fee permitted by law, irrespective of the source of
revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or
advertiser accounts), any taxes on services furnished by a franchisee or UVPP and imposed directly
upon any subscriber or user (as opposed to the franchisee or UVPP) by the state, City, or other
governmental unit and collected by a franchisee or UVPP on behalf of said governmental unit. The
franchise fee is not such a tax, and the amount paid as a franchise fee shall not be deducted from
gross revenues.
O) "Operator," when used with reference to a system, refers to a person (a) who,
directly or through one or more affiliates, provides service over a cable communications system
and directly or through one or more Affiliates owns a significant interest in such facility; or (b)
who otherwise controls or is responsible for, through any arrangement, the management and
operation of such a system.
P) "Public Rights -of -Way" means "right-of-way" or "public way" as defined in Title
15 of the City Code.
Q) "Public property" means "City property" as defined in PMC 15.10.020(H).
R) "Revocation" means the City's affirmative act of terminating a Franchise.
S) "School" means any public accredited primary School, secondary School,
college, and university.
T) "Subscriber" means the City or any Person who is lawfully receiving, for any
purpose or reason, any cable service via a cable communications system with franchisee's
express permission, whether or not a fee is paid for such service.
U) "Termination" means the conclusion of a franchise by any means, including, but
not limited to, by expiration of its term, abandonment, or revocation.
V) "Transfer" means any transaction in which:
1) All or a portion of the communications system is sold or assigned (except
a sale or assignment that results in removal of a particular portion of the facility from the
public rights-of-way);
2) There is any change, acquisition, or direct or indirect transfer of control of
the franchisee or right-of-way use permit holder; or
3) The rights and/or obligations held by the franchisee or right-of-way use
permit holder under the franchise or right-of-way use permit are transferred, sold,
assigned, or leased, in whole or in part, directly or indirectly, to another parry. It will be
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presumed that any transfer or cumulative transfer of voting interest of 10 percent or more
is transfer of control within the meaning of Subsection 2.
W) "Upstream channel" means a Channel designed and activated to carry
transmissions from a point on the cable communications system, other than the headend, to the
headend or another point on the cable communications system.
X) "User" means a person or the City utilizing a channel, capacity or equipment and
facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof
in the capacity of a Subscriber.
15.95.030 FRANCHISE REQUIRED. No person may construct or operate a cable
communications system in the City without first obtaining a grant of a franchise from the City
pursuant to this Chapter.
15.95.040 EXCEPTIONS TO FRANCHISE REQUIREMENT. The following
persons or entities shall not be required to obtain a Franchise under this Title:
A) The City of Pasco.
B) A UVPP (unaffiliated video program provider) that is only delivering cable
service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to
subscribers.
15.95.050 FAILURE TO OBTAIN A FRANCHISE. Consistent with the
requirements of due process, any person who constructs or operates a cable communications
system in the City without first obtaining a franchise as required by this Chapter may, in the
City's discretion, be subject to:
A) Forfeiture, by operation of law, of the person's cable communication system
located in the public rights-of-way that are not authorized by an existing franchise; and/or
B) A requirement that the cable communication system be removed, at such person's
cost, and that penalties and damages allowed by law be paid.
15.95.060 EXISTING FRANCHISES. Grantees of franchises existing as of the
effective date of this Chapter shall, in addition to all the obligations and duties prescribed by the
terms of their existing franchises, be subject to the substantive and procedural requirements
herein, except as prohibited by applicable law. Nothing herein is intended to invalidate a lawful,
existing franchise or to waive any obligations imposed by such a franchise, or deny any existing
franchisee of any contractual or other rights it may have with respect to its existing
franchise. Notwithstanding the foregoing, provisions of this Chapter that expressly refer to a
"franchise granted pursuant to this Chapter" shall not apply to franchises initially granted prior to
the effective date of this Chapter.
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15.95.070 FORM OF FRANCHISE. A franchise shall be issued in the form of
written agreement, approved by resolution of the City Council, and must be accepted by the
franchisee to become effective.
15.95.080 FILING AN APPLICATION. A person seeking to (1) obtain a franchise;
(2) transfer a franchise: (3) extend the term of an existing franchise, (4) renew a franchise, or (5)
modify an existing franchise to add new services that are required to be authorized by a franchise
pursuant to this Chapter, shall submit a signed original of its application and six (6) copies to the
City Clerk. The application must conform to all of the requirements of this Chapter. Requests
for other types of franchise modifications may be processed by the City without an application,
and submitted for approval. However, nothing herein shall prevent the City from requiring an
application in the event the City determines, based on the nature of the requested modification,
that the public interest would best be served by the submission of an application pursuant to this
Chapter.
15.95.090 APPLICATION FEE.
A) Reasonable Costs. An application for the issuance, renewal, transfer or
modification of a cable franchise shall be subject to the application and review fee provisions of
PMC § 15.80.020.
15.95.100 NATURE OF FRANCHISE.
A) Scope. A franchise granted pursuant to this Chapter shall authorize and permit a
franchisee to construct, operate, maintain and repair a cable communications system, or an OVS
(as applicable) to provide cable service in the City, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over,
under, upon, across, and along the public rights-of-way, and along such other public property
that the City may authorize a franchisee to use.
B) Nothing passes by implication. A franchise shall not convey rights other than as
specified in this Chapter, or in a franchise agreement; no rights shall pass by implication.
C) Franchise not in lieu of other authorizations. A franchise shall not include, or be a
substitute for:
1) Compliance with requirements for the privilege of transacting and
carrying on a business within the City, including, but not limited to, complying with the
conditions the City may establish before constructing facilities for, or providing, non -
cable services.
2) Any permit, agreement or authorization required in connection with
operations on or in public rights-of-way or public property, including by way of example
and not limitation, encroachment permits for street construction.
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3) Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by the franchise.
D) Franchisee must comply with other laws. A franchise does not relieve a
franchisee of its duty to comply with all the City ordinances and regulations, and every
franchisee must comply with the same. Likewise, the rights granted under a franchise are subject
to the exercise of police and other powers the City now has or may later obtain, including but not
limited to the power of eminent domain. Every franchise shall be deemed to incorporate all the
requirements of the City Municipal Code.
E) Franchise not a ,grant of property rights. A franchise does not convey title,
equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or
subleased.
F) Franchise non-exclusive. No franchise shall be exclusive, or prevent the City
from issuing other franchises or authorizations, or prevent the City from itself constructing,
operating, or repairing its own cable communications system with or without a franchise.
G) Franchise term. Every franchise shall be for a term of years, which term shall be
ten (10) years, unless a franchise specifies otherwise.
H) Costs borne by franchisee. Unless otherwise specifically stated in a franchise, or
required by law, all acts which a franchisee is required to perform under the franchise or
applicable law must be performed at the franchisee's expense.
J) Failures to perform. If a cable communications system operator fails to perform
work that it is required to perform within the time provided for performance, the City may
perform the work and bill the operator therefor. The operator shall pay the amounts billed within
30 days.
15.95.110 ADMINISTRATION OF ORDINANCE; ADOPTION OF
REGULATIONS.
A) Adoption of Regulations. The City of Pasco may from time to time adopt
regulations to implement the provisions of this Chapter. This Chapter, and any regulations
adopted pursuant to this ordinance, are not contracts with any franchisee, and may be amended at
any time.
B) Delegation. The City Manager or his/her designees are hereby authorized to
administer the provisions of this Chapter and any franchise issued pursuant thereto, and to
provide any notices (including noncompliance notices) and to take any action on the City's
behalf that may be required hereunder or under applicable law.
C) No waiver. The failure of the City, upon one or more occasions, to exercise a
right or to require compliance or performance under a franchise or any other applicable law shall
not be deemed to constitute a waiver of such right or a waiver of compliance or performance,
unless such right has been specifically waived in writing.
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D) Administration of Public, Educational and Government Access. The City may
designate one or more entities, including itself, to control and manage the use of public,
educational and governmental access channels, facilities and equipment.
15.95.120 TRANSFERS.
A) Prior approval required. Every Franchise shall be deemed to be held in trust, and
to be personal to the Franchisee. Any transfer that is made without the prior approval of the City
shall be deemed invalid. A Transfer is any transaction pursuant to which:
1) A cable communications system is sold or assigned (except the term does
not include sale of portions of the cable system that are removed).
2) There is any change, acquisition, or transfer of control of the franchisee or
its direct or indirect parents, whether voluntary or by operation of law; or by merger,
consolidation, voluntary or involuntary forced sale of assets or ownership interests, or by
any other means. A transfer will be deemed to have occurred whenever there is a change,
acquisition or transfer of control of more than a 20% ownership in the franchisee or its
direct or indirect parents by any entity, or a group of entities acting in concert. However,
a transfer also occurs whenever there is a change in actual working control, in whatever
manner exercised, over the affairs of a franchisee or its direct or indirect parents.
Without limiting the above, any change in the general partners of a franchisee will be
presumed a change in control.
3) The rights and/or obligations held by the franchisee under the franchise
are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to
another party.
B) Exception for mortgages. Notwithstanding any other provision of this Chapter,
pledges in trust or mortgages of the assets of a cable communications system to secure the
construction, operation, or repair of the system may be made without application and without the
City's prior consent. However, no such arrangement may be made without the City's prior
consent if it would in any respect under any condition:
1) Prevent the cable communications system operator or any successor from
complying with the franchise or applicable law; or
2) Permit a third party to succeed to the interest of the operator, or to own or
control the system, without the prior consent of the City. Any mortgage, pledge or lease
shall be subject to and subordinate to the rights of the City under any franchise, this
Chapter, or other applicable law.
C) Transferee Acceptance Required. No City consent to a transfer shall be valid
unless the transferee has, in writing, accepted and agreed to abide by all of the terms and
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conditions of the franchise and this Chapter and to assume all obligations and liabilities
thereunder, whether arising before or after the date of transfer, of its predecessor franchisee.
15.95.130 GENERAL CONDITIONS UPON CONSTRUCTION, OPERATION
AND REPAIR AND USE OF THE PUBLIC RIGHTS-OF-WAY.
A) Franchisee must follow local rules. The construction, operation, and repair of
cable communications systems shall be performed in compliance with PMC 15.70, and all other
applicable laws, ordinances, departmental rules, regulations, and practices affecting such system.
15.95.140 PROTECTION OF THE CITY AND RESIDENTS.
A) Indemnity, Insurance, and Bonding. No franchise shall be valid or effective until
the franchisee meets the indemnity, insurance, and bonding requirements as specified in Sections
15.70.290-310.
15.95.150 ENFORCEMENT AND REMEDIES
A) Franchise Violation -Notice and Procedures. Before revoking a franchise or
issuing an order to assess liquidated damages, the City shall follow the procedures set forth
below:
1) The City shall notify a cable communications system operator in writing
of any alleged violation ("Violation Notice") of a franchise or this Chapter. The violation
notice shall: (1) identify the violation; (2) direct the cable communications system
operator to cure the violation or show cause why the violation cannot or should not be
cured; and (3) state the time for the cable communications system operator's response,
which shall be at minimum thirty (30) days from the date of issuance of the violation
notice, except for violations that present a danger to public health, safety or welfare, in
which case the time for response may be shortened.
2) Within the time period designated for response, the cable communications
system operator shall respond in writing to the City indicating that: (1) the cable
communications system operator contests the violation notice and describing all facts
relevant to its claim; or (2) the cable communications system operator has completely
cured the violation, in which case the cable communications system operator shall
provide documentation demonstrating that the violation has been completely cured; or (3)
the cable communications system operator has begun to correct the violation; however,
the violation cannot be corrected immediately despite the cable communications system
operator's continued due diligence, in which case the operator shall describe in detail the
steps already taken and operator's proposed plan and time schedule for completely curing
the violation. Correction of the violation is not complete until all damages and penalties
owed are paid in full.
3) If the cable communications system operator contests the violation notice
or the City determines that the cable communications system operator has failed to
completely cure the violation, to submit an acceptable plan to cure the violation, or to
work diligently to cure the violation, the City shall schedule a hearing before the City
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Council ("violation hearing"). The City shall provide cable communications system
operator written notice of the violation hearing at least twenty (20) days prior to the
hearing ("Hearing Notice").
4) The hearing notice shall indicate: (1) the time and place of the Violation
Hearing; (2) the nature of the violation; and (3) the cable communications system
operator's right to present oral and written testimony at an open and public meeting.
5) At the violation hearing, the City Council shall hear and consider evidence
from the cable communications system operator, City staff and members of the public
regarding the alleged violation. The cable communications system operator shall be
given an opportunity to present any and all evidence relating to the alleged violation.
6) If, based upon the evidence presented at the violation hearing, the City
Council finds that the cable communications system operator has violated its franchise,
this Chapter or any applicable state or federal law, the City Council may (i) issue an order
assessing liquidated damages if such damages are provided for in the cable
communications system operator's franchise, or (ii) subject to Section 15.95.150(B) of
this Chapter and the terms of the cable communications system operator's franchise,
revoke or shorten the franchise.
B) Revocation and termination. The City Council may revoke a franchise or reduce
the term of a franchise if it finds, after complying with procedures set forth above, that a cable
communications system operator has violated this Chapter or its franchise; has defrauded or
attempted to defraud the City or subscribers; or has attempted to evade the requirements of this
Chapter or its franchise. Except as to violations that are impossible to cure, and as provided in
this Section, the franchise may only be revoked if the franchisee (A) was given notice of the
default; and (B) 30 days to cure the default; and (C) the franchisee failed to cure the default, or to
propose a schedule for curing the default acceptable to the City where it is impossible to cure the
default in 30 days.
C) Exception for certain acts. No opportunity to cure is required for repeated
violations, and fraud and attempted fraud shall be deemed incurable. Further, the City may
declare a franchise forfeited without opportunity to cure where a franchisee (A) voluntarily stops
providing service it is required to provide; or (B) Transfers the franchise without the prior
consent of the City.
D) Exception for bankruptcy. A franchise will terminate automatically by force of
law 120 calendar days after an assignment for the benefit of creditors or the appointment of a
receiver or trustee to take over the business of the franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding.
However, the franchise may be reinstated within that 120 day period, if.- (A) such assignment,
receivership or trusteeship has been vacated; or (B) such assignee, receiver or trustee has fully
complied with the terms and conditions of this Chapter and the franchise, and has executed an
agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the
terms and conditions of this Chapter and the franchise. In the event of foreclosure or other
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judicial sale of any of the facilities, equipment or property of a franchisee, the City may revoke
the franchise following a public hearing before the City Council by serving notice upon the
franchisee and the successful bidder at the sale, in which event the franchise and all rights and
privileges thereunder will be revoked and will terminate 30 calendar days after serving such
notice, unless: (A) the City has approved the transfer of the franchise to the successful bidder;
and (B) the successful bidder has covenanted and agreed with the City to assume and be bound
by the terms and conditions of the franchise and this Chapter and the obligations and liabilities of
its predecessor franchisee.
E) Effect of termination or forfeiture. Upon termination or forfeiture of a franchise,
whether by action of the City as provided above, or by passage of time, the franchisee must stop
using the cable communications system for the purposes authorized by the franchise. The City
may take possession of some or all of franchisee's facilities, or require the franchisee or its
bonding company to remove some or all of the franchisee's facilities from the City, and restore
affected property to its same or better condition. This provision does not permit the City to
remove facilities that are used to provide any non -cable service for which the franchisee holds a
valid franchise issued by the City or for which the franchisee is otherwise authorized by
operation of State law to use the public rights-of-way to provide.
F) Remedies cumulative. Remedies provided for under this Chapter or under a
franchise shall be cumulative. Recovery by the City of any amounts under insurance, the
performance bond, the security fund or letter of credit, does not limit a franchisee's duty to
indemnify the City; or relieve a franchisee of its franchise obligations or limit the amounts owed
to the City.
G) Liquidated Damages in Franchise. A franchise granted pursuant to this Chapter
may require liquidated damages, in an amount to be agreed to by both parties in the franchise, for
specified breaches of the franchise including but not limited to, failure to commence
construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan
benchmarks, failure to commence service, and material breach of any other franchise
obligation(s) for which the amount of monetary damages is not readily ascertainable. The
franchise may also provide that the City may withdraw liquidated damages owed from the
franchisee's security deposit, after complying with the procedures set forth in Section
15.95.150A). Liquidated damages shall commence on the date that performance was due and/or
failed, and continue until the franchisee demonstrates to the satisfaction of the City that the
franchisee has fully performed its obligations giving rise to the payment of liquidated damages.
Any obligation to pay liquidated damages does not in any way affect the franchisee's obligation
to pay franchise fees or perform other franchise obligations.
H) Penalties, Fines and Other Monetary Sanctions.
1) Penalties. In addition to any other remedies provided for in this Title or
otherwise available by law, the City shall have the power to impose monetary penalties in
the event a franchisee violates any provision of this Title, a franchise, or any regulation
lawfully adopted thereunder. The amounts of such penalties shall be specified in the
franchise and shall be based on the following principles.
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(a) Penalties shall exceed the financial benefits to a franchisee for
delaying or failing to comply with the applicable requirement;
(b) Even where such benefits are not easily discernible, the penalties shall
be high enough to have a significant deterrent effect on a franchisee; and
(c) Penalties shall be sufficient to protect the City and other affected
parties against loss of revenues resulting from violations.
15.95.160 BOOKS AND RECORDS.
A) Generally. In addition to the other documentation and records requirements in
this Title, each cable communications system operator shall provide the City access to, and
permit copying of, books and records related in whole or in part to the construction, operation, or
repair of the cable communications system, or a group of systems of which the system is a part
that may be relevant to the City's monitoring and enforcement of the operator's franchise or this
Title, so that the City may inspect and copy these books and records. The records shall include,
but are not limited to, revenue records and other records related to compliance with any
provision of this Title or a franchise. A franchisee is responsible for obtaining or maintaining the
necessary possession or control of all such books and records, so that it can produce the
documents upon request. Books and records must be maintained for a period of five years,
except that a franchise may specify a shorter period for certain categories of voluminous books
and records where the information contained therein can be derived simply from other materials.
The phrase "books and records" shall be read expansively to include information in whatever
format stored.
B) Production. Books and records requested shall be produced to the City by a time
and at a location in the City designated by the City Manager. However, if the requested books
and records are too voluminous, or for security reasons the franchisee reasonably believes they
cannot be copied and moved, then the franchisee may request that the inspection and, if
necessary, copying take place at some other location mutually agreed to by the City and the
franchisee, provided that (1) the franchisee must make necessary arrangements for copying
documents selected by the City after its review; and (2) the franchisee must pay all travel and
additional copying expenses incurred by the City (above those that would have been incurred had
the documents been produced in the City) in inspecting those documents or having those
documents inspected by its designee.
15.95.170 REPORTS.
A) Obligation to submit. The City Manager may from time to time direct a
franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed
by the City Manager, in addition to those required by this Chapter.
B) Quarterly reports. Unless an exemption is granted by the City Manager, within 45
days of the end of each calendar quarter, a franchisee shall submit a report to the City containing
the following information:
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1) The number of service calls (calls requiring a truck roll) received during
the prior quarter and the percentage of service calls compared to the subscriber base; and
2) The total estimated hours of known outages as a percentage of total hours
of operation. An outage is a loss of sound or video on any signal, or a significant
deterioration of any signal affecting two or more subscribers.
C) Annual reports. Unless an exemption is granted by the City Manager, no later
than ninety (90) days after the end of the operator's fiscal year, a franchisee shall submit the
following information:
1) A fully audited or certified revenue report from the previous calendar year
for the cable communications system, and a certified statement setting forth the
computation of gross revenues used to calculate the franchise fee for the preceding year
and a detailed explanation of the method of computation showing (i) gross revenues by
category (e.g., basic service, pay, pay-per-view, advertising, installation, equipment, late
charges, miscellaneous, other); and (ii) what, if any, deductions were made from gross
revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the
amount of each deduction.
2) A report showing, for each applicable customer service standard, the
franchisee's performance with respect to that standard for each quarter of the preceding
year. In each case where the franchisee concludes it did not comply fully, the franchisee
will describe the corrective actions it is taking to assure future compliance. In addition,
the report should identify the number and nature of all the customer service complaints
received and an explanation of their dispositions.
3) An ownership report, indicating all persons who at the time of filing
control or own an interest in the Franchisee of ten percent (10%) or more.
D) Contemporaneous Reports. Within 10 days of their receipt or (in the case of
documents created by the operator or its affiliate) filing, a franchisee shall provide the City with
copies of:
1) Notices of deficiency or forfeiture related to the operation of the system;
and
2) Any request for protection under bankruptcy laws, or any judgment related
to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or
controls the franchisee directly or indirectly.
15.95.180 MAPS REQUIRED. Each franchisee shall maintain accurate maps and
improvement plans in accordance with Section 15.70.100.
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15.95.190 OTHER RECORDS REQUIRED. Unless the City waives the
requirement, a franchisee shall at all times maintain:
A) Complaint records. Records of all complaints received, their nature and
resolution. The term "complaints" refers to complaints about any aspect of the franchisee's
operations or customer service.
B) Outage records. Records of outages known to the franchisee, their cause and
duration.
C) Complaint response. Records of service calls for repair and maintenance
indicating the date and time service was requested, the date of acknowledgment and date and
time service was scheduled (if it was scheduled), and the date and time service was provided, and
(if different) the date and time the problem was solved.
D) Installation records. Records of installation/reconnection and requests for service
extension, indicating date of request, date of acknowledgment, and the date and time service was
extended.
E) Customer service. Records sufficient to show whether the franchisee has
complied with each customer service standard that applies to it.
15.95.200 EXEMPTIONS. The City Manager may exempt any franchisee from its
obligations under Sections 15.95.170 - 15.95.190 if the City Manager determines that the
requirement would be unduly burdensome or unnecessary, and that the City and Subscriber
interests may be adequately protected in some other manner.
15.95.210 PRIVACY. A franchisee shall take all reasonable steps required so that it
is able to provide reports, books and records to the City, including by providing appropriate
subscriber privacy notices. Each franchisee shall be responsible for redacting data that
applicable law prevents it from providing to the City. Nothing in this section shall be read to
require a franchisee to violate state or federal subscriber privacy laws. Notwithstanding the
foregoing, and unless applicable law entitles the franchisee to withhold such information from
the City, a franchisee is not entitled to withhold or redact any information on the grounds that it
contains proprietary or confidential information.
15.95.220 PROCEDURES FOR PAYING FRANCHISE FEES AND FEES IN LIEU
OF FRANCHISE FEES.
A) Fees paid quarterly. The franchise fee paid pursuant to Section 15.95.240 F), or
fee in lieu of franchise fee paid pursuant to Section 15.95.250 G) shall be paid quarterly unless
otherwise specified in a franchise. Payment for each quarter shall be made to the City not later
than forty-five (45) days after the end of each calendar quarter.
B) Quarterly statement. Unless a franchise provides otherwise, a franchisee or other
entity subject to a fee under Sections 15.95.240 F) or 15.95.250 G) shall file with the City within
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forty-five (45) days of the end of each calendar quarter a statement showing gross revenues
during the preceding quarter and the number of subscribers served.
C) Acceptance of payment not a release. No acceptance by the City of any payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of such payment be construed as a release of any claim the City may have for
additional sums payable.
D) Fee Not in Lieu of Taxes. Neither the franchise fee under Section 15.95.240 F),
nor the fee paid in lieu of the franchise fee under Section 15.95.250 G), is a payment in lieu of
any tax, fee or other assessment of general applicability (including any such tax, fee or
assessment imposed on both utilities and operators or their services, but not including a tax, fee,
or assessment which is unduly discriminatory against operators or cable subscriber(s)).
E) Failure to Pay Franchise Fee. In the event that a fee payment is not received by
the City on or before the due date set forth in this Section or in a franchise, or the fee owed is not
fully paid, the person subject to the fee will be charged interest from the due date at an interest
rate equal to three percent (3%) above the rate for three-month Federal Treasury Bills at the most
recent United States Treasury Department sale of such Treasury Bills occurring prior to the due
date of the franchise fee payment.
F) Final Statement of Gross Revenues. Within ninety (90) days of the date a
franchisee ceases operations under a franchise (whether because of franchise termination,
transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross
revenues covering the period from the beginning of the calendar year in which the operations
ceased to the date operations ceased. The statement shall contain the information and be
certified as required by Section 15.95.170C).
15.95.230 CONTROLLING LAW. In the event of any conflict between Chapter
15.95 and any other provision of Title 15, the provision of Chapter 15.95 shall be controlling,
provided, however, that the terms of this Chapter shall be controlling only with respect to cable
franchises and shall not interfere with the administration of any other franchise under any other
Chapter of Title 15.
15.95.240 SPECIAL RULES APPLICABLE TO CABLE SYSTEMS.
A) Applications - Generally.
1) Application required. An application must be filed for an initial and
renewal cable system franchise, or for approval of a transfer. A request for renewal filed
under 47 U.S.C. § 546(h) need not contain the information required by Section
15.95.240(A)(2).
2) Application contents.
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(a) The City Manager may specify the information that must be
provided in connection with an application, and the form in which the information
is to be provided. At a minimum each application must identify the applicant,
show that the applicant is financially, technically and legally qualified to
construct, maintain and operate the cable system, contain a pro forma showing
capital expenditures and expected income and expenses for the first five years the
applicant is to hold the franchise, and show that the applicant is willing to comply
with its franchise obligations. In addition, any application for an initial or
renewal franchise or rebuild of the applicant's system and/or facilities, must
describe in detail the cable system that the applicant proposes to build, show
where it will be located, set out the system construction schedule, and show that
the applicant will provide adequate channels, facilities and other support for
public, educational and government use (including institutional network use) of
the cable system. The detailed description of the physical facilities proposed shall
include at least the following:
(1) A description of the channel capacity, technical design,
performance characteristics, headend, PEG access (and institutional
network, if required) facilities and equipment;
(2) The location of proposed facility and facility design,
including a description of the miles of plant to be installed, and a
description of the size of equipment cabinets, shielding and electronics
that will be installed along the plant route, the power sources that will be
used and a description of the noise, exhaust and pollutants, if any, that will
be generated by the operation of the same; provided, however, that, if
some of the descriptive data is not available at the time of application, the
franchise may be issued subject to conditions that the data be filed and
approved by the City before construction begins and that the franchise will
be deemed to be forfeited if the data is not supplied and approved;
provided, further, that the foregoing proviso does not authorize the grant
of a franchise where there is not sufficient information to appraise the
impact of the applicant's proposal;
(3) A map of the general route the facility will follow; a
designation of the portions of the system that will be placed above ground
and the portions that will be placed underground, and the construction
techniques that the applicant proposes to use in installing the system above
ground and underground; a schedule for construction of the facility,
describing when and where construction will begin, how it will proceed,
benchmarks indicating the scheduled completion of portions of the system
and when construction will be completed; and the expected effect on right-
of-way usage, including information on the ability of the public rights-of-
way to accommodate the proposed system, including, as appropriate given
the system proposed, an estimate of the availability of space in conduits
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and an estimate of the cost of any necessary rearrangement of existing
facilities;
(4) A description, where appropriate, of how services will be
converted from existing facilities to new facilities, and what will be done
with existing facilities;
(5) A demonstration of how the applicant will reasonably meet
the future cable -related needs and interests of the community, including
descriptions of the capacity, facilities and support for public, educational,
and governmental use of the system (including institutional networks)
applicant proposes to provide and why applicant believes that the proposal
is adequate to meet the future cable -related needs and interests of the
community;
(6) A demonstration of the financial qualifications of the
applicant, including at least the following:
a. The proposed rate structure, including projected
charges for each service tier, installation, converters, and all other
proposed equipment or services;
b. A statement regarding the applicant's financial
ability to complete the construction to meet the time frame
proposed and to operate the cable system proposed certified by the
applicant's chief financial officer;
(7) A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system;
(8) A demonstration that the applicant is legally qualified,
which proof must include a demonstration that the applicant:
a. Has received, or is in a position to receive,
necessary authorizations from state and federal authorities;
b. Has not engaged in conduct (fraud, racketeering,
violation of antitrust laws, consumer protection laws, or similar
laws) that might lead the City to conclude that the applicant cannot
be relied upon to comply with requirements of a franchise or
provisions of this Chapter, or to deal honestly with the City or its
residents;
C. Is willing to enter into a franchise, to pay required
compensation and to abide by the provisions of applicable law,
including those relating to the construction, operation or repair of
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its facilities; and has not entered into any agreement that would
prevent it from doing so; and
d. The applicant must not have submitted an
application for an initial or renewal franchise to the City, which
was denied on the ground that the applicant failed to propose a
cable system meeting the cable -related needs and interests of the
community, or as to which any challenges to such franchising
decision were finally resolved (including any appeals) adversely to
the applicant, within three years preceding the submission of the
application.
(9) The extent that the applicant is in any respect relying on the
financial or technical resources of another person, including another
affiliate; proofs should be provided for that person.
(10) A description of the applicant's prior experience in cable
system ownership, construction, and operation, and identification of cities
and counties in Washington in which the applicant or any of its principals
have a cable franchise or any interest therein, provided that an applicant
that holds a franchise for the City and is seeking renewal of that franchise
need only provide this information for other cities and counties in
Washington where its franchise is scheduled to expire during the 12 -
month period prior to the date its application is submitted to the City and
for other cities and counties in Washington where its Franchise had been
scheduled to expire during the 12 -month period after the date its
application is submitted to the City. If an applicant has no other franchise
in Washington, it shall provide the information for its operations in other
states; and
(11) An affidavit or declaration of the applicant or authorized
officer thereof certifying the truth and accuracy of the information in the
application, and certifying that the application meets all requirements of
applicable law.
a. To be accepted for filing, an original and six copies
of a complete application must be submitted. All applications shall
include the names and addresses of persons authorized to act on
behalf of the applicant with respect to the application.
b. An applicant (and the transferor and transferee, in
the case of a transfer application) shall respond to any request for
information from the City, by the time specified by the City.
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3) Incomplete applications. An application may be rejected if it is
incomplete, or if the response to the City's requests for information is not timely and
complete.
B) Application for an Initial Franchise or Renewal Franchise.
1) Scope. This section establishes additional provisions that apply to an
application for an initial franchise, or a renewal franchise application that is not governed
by 47 U.S.C. §546(a) -(g).
2) Process. Any person may apply for an initial or renewal franchise by
submitting an application therefore on that person's own initiative, or in response to a
request for proposals issued by the City. If the City receives an unsolicited application, it
may choose to issue a request for additional proposals, and require the applicant to amend
its proposal to respond thereto. The City shall promptly conduct such investigations as
are necessary to act on an application.
3) Consideration of application. In determining whether to grant a franchise,
the City may consider:
(a) The extent to which an applicant for renewal has substantially
complied with the applicable law and the material terms of any existing cable
franchise;
(b) Whether an applicant's quality of service under its existing
Franchise, including signal quality, response to customer complaints, billing
practices, and the like has been reasonable in light of the needs of the community;
(c) Where the applicant has not previously held a cable system
franchise in the City, whether the applicant's record in other communities
indicates that it can be relied upon to provide high-quality service throughout any
franchise term;
(d) Whether the applicant has the financial, legal, and technical ability
to provide the services, facilities, and equipment set forth in an application, and to
satisfy any minimum requirements established by the City;
(e) Whether the applicant's application is reasonable to meet the
future cable -related needs and interests of the City, taking into account the cost of
meeting such needs and interests;
(f) Whether issuance of a franchise is in the public interest
considering the immediate and future effect on the public rights-of-way, public
property, and private property that will be used by the applicant's cable system;
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(g) Whether issuance of the franchise would reduce or increase
competition in the provision of cable service in the City;
(h) Such other matters as the City is authorized or required to
consider.
4) Issuance of Franchise. If the City determines that issuance of a franchise
would be in the public interest considering the factors described above, it may offer a
franchise agreement to the applicant. No franchise shall become effective until the
franchise is unconditionally accepted by the applicant, approved by the City Council, and
the franchise agreement is signed by both parties.
C) Application for Renewal Franchise Filed Pursuant to 47 U.S.C. &546.
1) Scope. This section establishes additional provisions that apply to
applications for renewal governed by 47 U.S.C. §546(a) -(g).
2) Process. A franchisee that intends to exercise rights under 47 U.S.C. §
546(a) -(g) shall submit a notice in writing to the City in a timely manner clearly stating
that it is activating the procedures set forth in those sections. The City shall thereafter
commence any proceedings that may be required under federal law, and upon completion
of those proceedings, the City may issue a request for renewal proposals and an
application may be submitted for renewal. The City may preliminarily deny the
application by resolution, and if the application is preliminarily denied, the City may
conduct such proceedings and by resolution establish such procedures and appoint such
individuals as may be necessary to conduct any proceedings to review the application.
D) Application for Transfer.
1) Scope. This section establishes additional provisions that apply to
applications for transfer approval.
2) Information. An application for transfer must contain all the information
required by the City Manager, by Section 15.95.240A), and all information required by
any FCC franchise transfer form.
3) Consideration of application. In determining whether a transfer
application should be granted, denied, or granted subject to conditions, the City may
consider the legal, financial, and technical qualifications of the transferee to operate the
cable system; any potential impact of the transfer on subscriber rates or services; whether
the transferor franchise is in compliance with its franchise; whether the transferee owns
or controls any other cable system in the City, whether operation by the transferee may
eliminate or reduce competition in the delivery of cable service in the City; and whether
operation by the transferee or approval of the transfer would otherwise adversely affect
subscribers, the public, or the City's interest under this Chapter, the franchise, or other
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applicable law. The proposed transferee shall pay all reasonable costs incurred by the
City in reviewing and evaluating the applications.
4) Minimum conditions. In order to obtain approval of a transfer, an
applicant must show, at a minimum, that: the transferee is qualified; the transfer will not
adversely affect the interests of subscribers, the public, or the City; and that all franchise
non-compliance issues have been resolved or, alternatively, that the transferee will
assume all liability for or such franchise non-compliance issues, known or unknown,
arising before the date of the transfer. No transfer application shall be granted unless the
transferee agrees in writing that it will abide by and accept all terms of this Chapter and
the franchise, and that it will assume all of the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of its predecessor franchisee, whether
arising before or after the date of the transfer, for all purposes.
E) Legal Qualifications.
1) Standards.
(a) The applicant must be willing to comply with the provisions of this
Chapter and applicable laws; and to comply with such requirements of a franchise
as the City may lawfully require.
(b) The applicant must not have had any cable system or OVS
franchise validly revoked (including any appeals) by the City within three (3)
years preceding the submission of the application.
(c) The applicant must not have had an application to the City for an
initial or renewal cable system franchise denied on the ground that the applicant
failed to propose a cable system meeting the cable -related needs and interests of
the community, or as to which any challenges to such franchising decision were
finally resolved (including any appeals) adversely to the applicant, within three
(3) years preceding the submission of the application; and must not have had an
application for an initial or renewal OVS franchise denied on any ground within
three years of the application.
(d) The applicant shall not be issued a franchise if, at any time during
the ten (10) years preceding the submission of the application, applicant was
convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or
other conduct of such character that the applicant cannot be relied upon to deal
truthfully with the City and the Subscribers, or to substantially comply with its
obligations.
(e) Applicant must have the necessary authority under Washington
and federal law to operate a cable system, or show that it is in a position to obtain
that authority.
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(f) The Applicant shall not be issued a franchise if it files materially
misleading information in its application or intentionally withholds information
that the applicant lawfully is required to provide.
(g) For purposes of this section, the term applicant includes any
affiliate of applicant.
2) Exception. Notwithstanding Section 15.95.240E)1), an applicant shall be
provided a reasonable opportunity to show that a franchise should issue even if the
requirements of Section 15.95.240E)1)(c) and (d) are not satisfied, by virtue of the
circumstances surrounding the matter and the steps taken by the applicant to cure all
harms flowing therefrom and prevent their recurrence, the lack of involvement of the
applicant's current principals, or the remoteness of the matter from the operation of a
cable system.
F) Franchise Fee. A cable system operator shall pay to the City a franchise fee in an
amount equal to 5 percent of gross revenues, or such other amount as may be specified in the
franchise; provided, however, that if the franchise specifies an amount, that amount shall be
subject to increase should federal limits on fee payments be eliminated or changed and other
operators are subject to a higher fee.
1) "Bundled Services." In the event that the franchisee, during the term of
the franchise, offers bundled, tied, or combined cable services (which are subject to the
franchise fee) with non -cable services (which may not be subject to the franchise fee) to
subscribers, the combined revenues from such bundled services shall be allocated
consistent with the standalone rates or prices for each individual bundled service
advertised by the franchisee through its marketing materials or on its published rate card.
In the event the franchisee does not advertise or publish separate standalone prices for
any or all the individual services in the bundled service, the percentage that the price for
the combined services is discounted from the regular retail rates of the individual
standalone services shall be pro -rated across all of the services in the bundled package;
provided, however, that the net revenues derived from services subject to mandatory
tariff rates imposed by the Washington Public Utilities Commission (or other
governmental entity having such authority) shall be deducted from the combined bundled
service revenue to determine the revenue subject to the franchise fee. As an example, a
franchisee may offer a "bundle" of video, voice and data services for a flat fee of $75.00
where the standalone retail rate for each of the services purchased on an individual basis
would equal $100.00. Assuming that there is no service subject to the mandated tariff
rate, the franchisee would apply a twenty-five percent (25%) discount to each service in
the bundle. Thus, if the franchisee's standalone retail rate for the cable service portion of
the bundle were $50.00, for franchise fee computation purposes Grantee would recognize
cable service revenue in the amount of $37.50 and pay a franchise fee on that revenue.
2) The definition of gross revenue is to be as inclusive as possible consistent
with existing applicable law. If a change in federal law occurs subsequent to the effective
date of this Chapter, such change shall not impact the gross revenues definition in such a
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way to reduce gross revenues, unless the change in law specifically preempts the affected
portion of the definition above.
G) No exclusivity. A franchisee may not require a subscriber or a building owner or
manager to enter into an exclusive contract as a condition of providing or continuing service.
However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually
desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or
commercial subscriber.
H) Rate regulation and consumer protection.
1) All rates subject to regulation. The City may regulate the operator's rates
and charges, to the extent it is not prohibited from doing so by law. The City will
regulate rates in accordance with FCC rules and regulations, where applicable. Except to
the extent FCC rules provide otherwise, all rates and charges that are subject to
regulation, and changes in those rates or charges must be approved in advance. The City
Manager may take any required steps to file complaints, toll rates, issue accounting
orders or take any other steps required to comply with FCC rate regulation rules. The
City Council shall be responsible for issuing rate orders that establish rates or order
refunds.
2) No rate discrimination. Except to the extent preempted by federal or state
law, an operator is prohibited from discriminating in its rates or charges or from granting
undue preferences to any subscriber, potential subscriber, or group of subscribers or
potential subscribers; provided, however, that a franchisee may offer temporary, bona
fide promotional discounts in order to attract or maintain subscribers, so long as such
discounts are offered on a non-discriminatory basis to similar classes of subscribers
throughout the franchise area; and a franchisee may offer discounts for the elderly, the
disabled, or the economically disadvantaged, and such other discounts as it is expressly
entitled to provide under federal law, if such discounts are applied in a uniform and
consistent manner.
3) Redlining prohibited. An Operator shall not deny access or charge
different rates to any group of subscribers or potential subscribers because of the income
of the residents of the local area in which such group resides.
4) Customer service.
(a) Each operator must satisfy FCC, State and the City's cable
customer service standards and consumer protection standards. The City's cable
customer service standards may be adopted by resolution. In the case of a conflict
among standards, the stricter standard shall apply to the full extent permitted by
law.
(b) For violation of cable customer service standards, penalties will be
imposed as follows:
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(1) Two hundred dollars ($200) for each day of each material
breach, not to exceed six hundred dollars ($600), for each occurrence of
material breach.
(2) If there is a subsequent material breach of the same
provision within twelve (12) months, four hundred dollars ($400) for each
day of each material breach, not to exceed twelve hundred ($1200) for
each occurrence of the material breach.
(3) If there is a third or additional material breach of the same
provision within twelve (12) months of the first, one thousand dollars
($1000) for each day of each material breach, not to exceed three thousand
dollars ($3,000) for each occurrence of the material breach.
(c) Any penalty assessed under this section will be reduced dollar for
dollar to the extent any liquidated damage provision of a franchise imposes a
monetary obligation on a franchisee for the same customer service failures.
15.95.250 OPEN VIDEO SYSTEMS.
A) Additional definitions
1) "OVS Agreement" means a contract entered into in accordance with the
provisions of this Chapter between the City and an OVS franchisee setting forth the terms
and conditions under which the OVS franchise will be exercised.
B) Applications for Grant or Renewal of Franchises.
1) Initial and renewal Franchise: application.
(a) A written application shall be filed with the City for grant of an
initial or renewal OVS franchise.
(b) To be acceptable for filing, a signed original of the application
shall be submitted together with six (6) copies. The application must conform to
any applicable request for proposals, and contain all information required under
Section 15.95.250B)2). All applications shall include the names and addresses of
persons authorized to act on behalf of the applicant with respect to the application.
2) Contents of Applications. The City Manager may specify the information
that must be provided in connection with a request for proposals or an application for an
initial or renewal franchise. At a minimum, each application must: identify the applicant,
where it plans to construct its system, and the system construction schedule; show that
the applicant will provide adequate channels, facilities and other support for public,
educational and government use (including institutional network use) of the OVS; and
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show that the applicant is financially, technically and legally qualified to construct and
operate the OVS. The application must contain the following information;
(a) Identity of the applicant; the persons who exercise working control
over the applicant; and the Persons who control those persons, to the ultimate
parent.
(b) A proposal for construction of the OVS that includes at least the
following:
(1) A description of the services that are to be provided over
the facility.
(2) Identification of the area of the City to be served by the
proposed system, including a description of the proposed franchise area's
boundaries.
(3) The location of proposed facility and facility design,
including a description of the miles of plant to be installed, and a
description of the size of equipment cabinets, shielding and electronics
that will be installed along the plant route, the power sources that will be
used and a description of the noise, exhaust and pollutants, if any, that will
be generated by the operation of the same.
(4) A map of the route the facility will follow a designation of
the portions of the system that will be placed aboveground and the
portions that will be placed underground, and the construction techniques
that the applicant proposes to use in installing the system aboveground and
underground; a schedule for construction of the facility, describing when
and where construction will begin, how it will proceed, benchmarks for
completion of phases, and when it will be completed; expected effect on
rights-of-way usage, including information on the ability of the public
rights-of-way to accommodate the proposed system, including, as
appropriate given the system proposed, an estimate of the availability of
space in conduits and an estimate of the cost of any necessary
rearrangement of existing facilities.
(5) A description, where appropriate, of how services will be
converted from existing facilities to new facilities, and what will be done
with existing facilities.
(c) Evidence satisfactory to the City that the applicant has the financial
resources to complete the proposed project, and to construct, operate and repair
the proposed facility over the franchise term. It is not the intent of the City to
require an applicant to prove that the services it proposes to offer will succeed in
the marketplace.
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(d) Evidence satisfactory to the City that applicant is technically
qualified to construct, operate and repair the proposed facility. At a minimum, the
applicant must show that it has experience or resources to ensure that work is to
be performed adequately, and can respond to emergencies during and after
construction is complete.
(e) Evidence satisfactory to the City that the applicant is legally
qualified, which proof must include a demonstration that the applicant:
(1) Has received, or is in a position to receive, necessary
authorizations from state and federal authorities;
(2) Has not engaged in conduct (fraud, racketeering, violation
of antitrust laws, consumer protection laws, or similar laws) that allows
City to conclude the applicant cannot be relied upon to comply with
requirements of franchise, or provisions of this Chapter;
(3) Is willing to enter into a franchise, to pay required
compensation and to abide by the provisions of applicable law, including
those relating to the construction, operation or maintenance of its facilities,
and has not entered into any agreement that would prevent it from doing
so.
(f) An affidavit or declaration of the applicant or authorized officer
thereof certifying the truth and accuracy of the information in the application, and
certifying that the application meets all requirements of applicable law.
(g) To the extent that the applicant is in any respect relying on the
financial or technical resources of another person, including another affiliate, the
proofs should be provided for that person. An applicant will be presumed to have
the requisite financial, or technical or legal qualifications to the extent such
qualifications have been reviewed and approved by a state agency of competent
jurisdiction; or if applicant is a holder of a franchise in the City for a cable system
or open video system, and conduct under such other franchise provides no basis
for additional investigation.
3) Procedure for Applying for Grant of a Franchise.
(a) A person may apply for an initial or renewal franchise on its own
initiative or in response to a request for proposals. Upon receipt of an application,
the City shall promptly proffer the applicant a proposed OVS agreement, which
shall be mailed to the person requesting its issuance and made available to any
other interested party. The City may request such additional information, as it
deems appropriate.
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(b) An applicant shall respond to requests for information completely,
and within the time directed by the City, and must strictly comply with
procedures, instructions, and requirements as the City may establish.
(c) An application may be rejected if it is incomplete or the applicant
fails to follow procedures or respond fully to information requests.
4) Evaluation. In evaluating a franchise application, the City may consider
the following:
(a) The extent to which the applicant has substantially complied with
the applicable law and the material terms of any existing City OVS franchise;
(b) Whether the applicant has the financial, technical, and legal
qualifications to hold an OVS franchise;
(c) Whether the application satisfies any minimum requirements
established by the City for, or will otherwise provide adequate public,
educational, and governmental use capacity, facilities, or financial support
(including with respect to institutional networks);
(d) Whether issuance of a franchise would require replacement of
property or involve disruption of property, public services, or use of the public
rights-of-way;
(e) Whether the approval of the application may eliminate or reduce
competition in the delivery of cable service in the City.
5) Issuance. If the City finds that it is in the public interest to issue a
franchise considering the factors above, and such other matters as it is required or entitled
to consider, and subject to the applicant's entry into an appropriate OVS agreement, it
shall issue a franchise. Prior to deciding whether or not to issue a Franchise, the City
may hold one or more public hearings or implement other procedures under which
comments from the public on an application may be received.
6) Legal qualifications. In order to be legally qualified:
(a) The applicant must be willing to comply with the provisions of this
Chapter and applicable laws, and to comply with such requirements of an OVS
agreement as the City may lawfully require.
(b) The applicant must not hold a cable system franchise, or have
pending an application for a Cable system Franchise.
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(c) The applicant must not have had any cable system or OVS
franchise validly revoked (including any appeals) by the City within three (3)
years preceding the submission of the application.
(d) The applicant may not have had an application for an initial or
renewal cable system franchise to the City denied on the ground that the applicant
failed to propose a cable system meeting the cable -related needs and interests of
the community, or as to which any challenges to such franchising decision were
finally resolved (including any appeals) adversely to the applicant, within three
(3) years preceding the submission of the application.
(e) The applicant may not have had an application for an initial or
renewal OVS franchise denied on any grounds within three (3) years of the
applications.
(f) The applicant shall not be issued a franchise if, at any time during
the ten (10) years preceding the submission of the application, applicant was
convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or
other conduct of such character that the applicant cannot be relied upon to deal
truthfully with the City and the subscribers or to substantially comply with its
obligations.
(g) Applicant must have the necessary authority under Washington
and federal law to operate an OVS, and must be certified by the FCC under
Section 653 of the Cable Act, 47 U.S.C. § 573.
(h) The Applicant shall not be issued a franchise if it files materially
misleading information in its application or intentionally withholds information
that the applicant lawfully is required to provide.
(i) For purposes of Section 15.95.250B)6)(b) thru (e), the term
applicant includes any affiliate of applicant.
7) Exception. Notwithstanding Section 15.95.250B)6), an applicant shall be
provided a reasonable opportunity to show that a franchise should issue even if the
requirements of Section 15.95.250B)6)(d) and (e) are not satisfied, by virtue of the
circumstances surrounding the matter and the steps taken by the applicant to cure all
harms flowing therefrom and prevent their recurrence, the lack of involvement of the
applicant's principals, or the remoteness of the matter from the operation of a cable
system.
C) Transfers.
1) City Approval Required. No transfer shall occur without prior written
notice to and approval of the City.
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2) Application.
(a) A franchisee shall promptly notify the City of any proposed
transfer, and submit an application for its approval.
(b) The City may specify information that must be provided in
connection with a transfer application. At a minimum, an application must:
describe the entities involved in the transaction and the entity that will hold the
franchise; describe the chain of ownership before and after the proposed
transaction; show that the entity that will hold the franchise will be legally,
financially, and technically qualified to do so; attach complete information on the
proposed transaction, including the contracts or other documents that relate to the
proposed transaction, and all documents, schedules, exhibits, or the like referred
to therein; and attach any shareholder reports or filings with the Securities and
Exchange Commission ("SEC") that discuss the transaction.
(c) For the purposes of determining whether it shall consent to a
transfer, the City or its agents may inquire into all qualifications of the
prospective transferee and such other matters as the City may deem necessary to
determine whether the transfer is in the public interest and should be approved,
denied, or conditioned. If the transferee or franchisee refuses to provide
information, or provide incomplete information, the request for transfer may be
denied.
3) Determination by the City.
(a) In deciding whether a transfer application should be granted,
denied or granted subject to conditions, the City may consider the legal, financial,
and technical qualifications of the transferee to operate the OVS; whether the
incumbent OVS operator is in compliance with its OVS agreement and this
Chapter and, if not, the proposed transferee's commitment to cure such
noncompliance; whether the transferee owns or controls any other OVS or cable
system in the City, and whether operation by the transferee may eliminate or
reduce competition in the delivery of cable service in the City; and whether
operation by the transferee or approval of the transfer would adversely affect
Subscribers, the public, or the City's interest under this Chapter, the OVS
agreement, or other applicable law.
(b) In order to obtain approval of a transfer, an applicant must show, at
a minimum, that: the transferee is qualified; the transfer will not adversely affect
the interests of subscribers, the public, or the City; and that non-compliance issues
have been resolved. No application shall be granted unless the transferee agrees
in writing that it will abide by and accept all terms of this Chapter and the
franchise, and that it will assume the obligations, liabilities, and responsibility for
all acts and omissions, known and unknown, of the previous franchisee, whether
arising before or after the transfer, for all purposes. The proposed transferee shall
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pay all reasonable costs incurred by the City in reviewing and evaluating the
applications.
D) Minimum requirements.
1) PEG Access. No OVS Operator shall be issued a franchise, or may
commence construction of an OVS system, until (A) it agrees to match in all respects the
highest PEG obligations borne by any franchised cable system operator in the City; or (B)
it agrees to PEG obligations acceptable to the City.
2) Institutional network. Any OVS operator that constructs an I -Net must
match in all respects the highest institutional network obligations borne by any franchised
cable system operator in the City, unless it agrees to alternative institutional network
obligations acceptable to the City.
3) Construction Provisions. Every OVS agreement shall specify the
construction schedule that will apply to any required construction, upgrade, or rebuild of
the OVS. The schedule shall provide for prompt completion of the project, considering
the amount and type of construction required.
4) Testing. Each OVS operator shall perform at its expense such tests as may
be necessary to show whether or not it is in compliance with its obligations under this
Chapter or a franchise.
5) Consumer protection provisions. Every franchisee must satisfy customer
service consumer protection requirements established from time to time under state or
local law and applicable to OVS.
E) Special termination rules. If a franchisee's FCC OVS certification is revoked or
otherwise terminates as a result of the passage of time or as a matter of law, the City may revoke
the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations
or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed.
F) Rate regulation. ation. The City may regulate a franchisee's rates and charges except as
prohibited by law, and may do so by amendment to this Chapter, separate ordinance, by
amendment to an OVS agreement, or in any other lawful manner.
G) Fee in lieu of Franchise Fee.
1) DVS Operators. In lieu of the franchise fee required by Section
15.95.240, an OVS franchisee shall pay a fee of five percent (5%) of the gross revenues
of the franchisee, its affiliates or any OVS operator of the OVS.
2) Persons leasing OVS capacity.
Ordinance - Title 15
39
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(a) A person leasing capacity from an OVS operator, other than a
person whose revenues are included in the payment made under Section
15.95.250G)1), shall pay the City a fee, in lieu of the franchise fee required by
Section 15.95.240, of five percent (5%) of the gross revenues of such person.
(b) Notwithstanding the foregoing, where the OVS franchisee charges
a person, other than an affiliate, to use its OVS (the "use payments"); and that
person recovers those use payments through charges to its subscribers that are
included in that person's gross revenues; and that person fully recovers the use
payments through the charges to its subscribers and pays a fee on those charges
pursuant to Section 15.95.250G)1), then franchisee may deduct from its gross
revenues the use payments it receives from that person.
H) Exclusive contracts. A franchisee may not require a subscriber or a building
owner or manager to enter into an exclusive contract as a condition of providing or continuing
service, nor, subject to applicable law, may a franchisee enter into any arrangement that would
effectively prevent other persons from using the OVS to compete in the delivery of cable
services with a franchisee or its affiliates.
15.95.260 CAPTIONS. The captions to sections throughout this Chapter are
intended solely to facilitate reading and reference to the sections and provisions of this Chapter.
Such captions shall not affect the meaning or interpretation of this Chapter.
15.95.270 CALCULATION OF TIME. Unless otherwise indicated, when the
performance or doing of any act, duty, matter, or payment is required under this Chapter or any
franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is
fixed herein, the time shall be computed so as to exclude the first and include the last day of the
prescribed or fixed period of time.
15.95.280 CONNECTIONS TO CABLE SYSTEM; USE OF ANTENNAE.
A) Subscriber right to attach. To the extent consistent with federal law, subscribers
shall have the right to attach VCR's, receivers, and other terminal equipment to a franchisee's
cable system. Subscribers also shall have the right to use their own remote control devices and
converters, and other similar equipment.
B) Removal of existing antennae. A franchisee shall not, as a condition of providing
service, require a subscriber or potential subscriber to remove any existing antenna, or
disconnect an antenna except at the express direction of the subscriber or potential subscriber, or
prohibit installation of a new antenna, provided that such antenna is connected with an
appropriate device and complies with applicable law.
15.95.290 DISCRIMINATION PROHIBITED
A) No retaliatory actions. A cable communications system operator shall not
discriminate among persons or the City or take any retaliatory action against a person or the City
Ordinance - Title 15
40
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because of that entity's exercise of any right it may have under federal, state, or local law, nor
may the operator require a person or the City to waive such rights as a condition of taking
service.
B) Employment and hiring practices. A cable communications system operator shall
not refuse to employ, discharge from employment, or discriminate against any person in
compensation or in terms, conditions, or privileges of employment because of race, color, creed,
national origin, sex, sexual orientation, age, disability, religion, ethnic background, or marital
status. A cable communications system operator shall comply with all federal, state, and local
laws and regulations governing equal employment opportunities, and hiring practices, as the
same may be amended from time to time.
15.95.300 TRANSITIONAL PROVISIONS.
A) Persons operating without a Franchise. The operator of any cable
communications system facility installed as of the effective date of this Chapter, for which a
franchise is required under this Chapter, shall have three months from the effective date of this
Chapter to file one or more applications for a franchise. Any operator timely filing such an
application under this Section 15.95.300A) shall not be subject to a penalty for failure to have
such a franchise so long as said application remains pending; provided, however, nothing herein
shall relieve any cable communications system operator of any liability for its failure to obtain
any permit or other authorization required under other provisions of the City Code, and nothing
herein shall prevent the City from requiring removal of any facilities installed in violation of the
City Code.
B) Persons holding Franchises. Any person holding an existing franchise for a cable
communications system may continue to operate under its existing franchise to the conclusion of
its present term (but not any renewal or extension thereof) with respect to those activities
expressly authorized by the franchise; provided that, such person shall be subject to the other
provisions of this Chapter to the extent permitted by law.
C) Persons with pending applications. Pending applications shall be subject to this
Chapter. A person with a pending application shall have 30 days from the effective date of this
Chapter to submit additional information to comply with the requirements of this Chapter
governing applications.
15.95.310 APPLICATION OF THIS CHAPTER. Any cable communications
system operator that uses its system to provide any noncable services must comply with those
other provisions of Title 15 otherwise applicable to such noncable services, which requirement
shall be in addition to any requirement contained in this Chapter. In the event of any conflict
between Chapter 15.95 and other provisions of Title 15, the provisions of Chapter 15.95 shall be
controlling; provided that the terms of this Chapter shall be controlling only with respect to cable
franchises and shall not interfere with the administration of any franchise under any other
Chapter of Title 15.
Ordinance - Title 15
41
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15.95.320 SEVERABILITY. If any term, condition, or provision of this Chapter
shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or
regulatory agency, the remainder hereof shall be valid in all other respects and continue to be
effective. In the event of a subsequent change in applicable law so that the provision which had
been held invalid is no longer invalid, said provision shall thereupon return to full force and
effect without further action by the City and shall thereafter be binding on the franchisee and the
City.
SECTION 5. This Ordinance shall take full force and effect five (5) days after its
approval, passage and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided by law this day of 12016.
Matt Watkins, Mayor
ATTEST:
APPROVED AS TO FORM:
Debbie Clark, City Clerk Leland B. Kerr, City Attorney
Ordinance - Title 15
42
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AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Stan Strebel, Deputy City Manager
SUBJECT: Charter Cable Franchise Renewal
I. REFERENCE(S):
Summary of Key Provisions
Proposed Ordinance
June 14, 2016
Regular Meeting: 6/20/16
IL ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to adopt Ordinance No. , granting a Cable Communications
System Franchise to Falcon Video Communications, L.P., locally known as Charter
Communications.
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
The City has been conducting negotiations with Charter for renewal of the franchise
agreement for the last 56 months. While a transfer agreement request from Comcast to
assume the franchise agreement from Charter in the fall of 2014 (which was
subsequently abandoned by Comcast) temporarily put negotiations on hold and,
subsequently, Charter and Time Warner Cable proposed a similar deal, but which
would have left Charter as the City's franchisee, also stalled progress for a time, staff
has continued in negotiations to try to complete the renewal process.
Over the past six -eight months, we have been able to shift negotiations to the level of
Charter corporate representatives with the Cities' (Richland and Pasco) consultant, Sue
Buske, playing a key role in negotiations. Staff is pleased to report that a tentative
agreement on the franchise renewal has now been reached, pending approval of
Council.
V. DISCUSSION:
Page 121 of 226
The proposed agreement is incorporated into the attached proposed Ordinance,
however, since the agreement contains a lot of legal and technical language, staff has
provided a summary of key provisions, compared with the current franchise (attached).
One new provision, which has been included in the Richland franchise for many years,
however not in Pasco's, is financial support for the equipment necessary to provide a
broadcast signal for the City's government access channel, PSCTV. The proposed
support of $.35 per monthly subscriber will produce an annual estimated support of
some $21,000, which will enable the City to replace, as needed, and upgrade its
equipment to HD quality over time.
This item was discussed at the June 13 Council Workshop meeting. Staff recommends
Council adopt the attached Ordinance.
Page 122 of 226
Charter Cable Franchise Renewal
Summary of Key Provisions
ITEM
PROPOSED FRANCHISE
CURRENT FRANCHISE
Term
10 years
5 years / 10 year extension
Performance bond
$50,000
-0-
30 homes per line; standard
20 aerial drop services per
Line extension requirements
miles
strand mile; 40 underground
drop services per strand mile
Required to meet or exceed
Customer service standards
FCC customer service
Consistent with FCC
standards
Local office
Not required, sufficient staff
Tri -Cities area
required.
Designated public channel
City to designate; not
Franchisee designated
access provider
franchisee
Print, on screen and online
program listings for public
Specified
Not covered
channels (PEG)
Number of PEG channels
3
2 (up to 5 upon demonstrated
need)
PEG channel in HD
Within 3 years
Not available
Financial support for PEG
$,35 per subscriber/month
None
complimentary services
City Hall, plus one additional
Fire station, public schools,
site; elementary, secondary
police station, public libraries,
Complimentary cable service
schools and public libraries (as
City Hall and Public Works
long as franchise participants in
"Cable
shop
in Classroom" program
Franchise fee
5% detailed definition (taken
5% definition broad
from California law)
Page 123 of 226
FRANCHISE AGREEMENT
BETWEEN
THE CITY OF PASCO, WASHINGTON
FALCON VIDEO COMMUNICATIONS, L.P. locally known as
CHARTER COMMUNICATION, INC.
Page 124 of 226
TABLE OF CONTENTS
PAGE
SECTION 1. GRANT OF FRANCHISE------------------------------------------------------------------------1-2
1.1
Grant-----------------------------------------------------------------------------------------------------1
1.2
Term-----------------------------------------------------------------------------------------------------1
1.3
Effective Date--------------------------------------------------------------------------------------------1
1.4
Franchise Area------------------------------------------------------------------------------------------1
1.5
Effect of Acceptance-----------------------------------------------------------------------------------1
1.6
Rights Reserved-----------------------------------------------------------------------------------------1
1.7
Franchisee Compliance-------------------------------------------------------------------------------
2
1.8
Affiliates Must Comply---------------------------------------------------------------------------------2
1.9
Legal Qualifications-------------------------------------------------------------------------------------2
SECTION 2. SHORT TITLE AND DEFINITIONS ------------------------------------------------------------2-6
SECTION 3. FRANCHISE- LIMITATIONS------------------------------------------------------------------ 6-7
SECTION 4. NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED ------------7
SECTION 5. NO WAIVER-----------------------------------------------------------------------------------------7
SECTION 6. CUSTOMER PROTECTION --------------------------------------------------------------------- 7-9
6.1 Customer Protection------------------------------------------------------------------------------------7
6.2 Privacy-----------------------------------------------------------------------------------------------------7
6.3 Sale of Subscriber Lists and Personalized Data -------------------------------------------------7
6.4 Maintenance and Complaints------------------------------------------------------------------------8
6.5 Non-discrimination and Equal Employment Opportunity ---------------------------------------8
6.6 Parental Control Device-------------------------------------------------------------------------------9
SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES ----------------------------------9-19
7.1
Cable System Design and Functionality -----------------------------------------------------------9
7.2
Interconnection------------------------------------------------------------------------------------------10
7.3
Cable System Upgrade--------------------------------------------------------------------------------10
7.4
Performance Testing-----------------------------------------------------------------------------------11
7.5
System Inspections-------------------------------------------------------------------------------------11
7.6
Other Construction Procedures----------------------------------------------------------------------11
7.7
System Maintenance-----------------------------------------------------------------------------------12
7.8
System Performance-----------------------------------------------------------------------------------12
7.9
Future System Upgrades/Rebuilds-----------------------------------------------------------------12
7.10
Service Availability--------------------------------------------------------------------------------------13
7.11
Public, Educational and Governmental Use ------------------------------------------------------15
A. Designated Access Providers................................................................................15
B. PEG Access Channel Capacity.............................................................................15
C. Requirements Regarding Rules and Procedures for Use of PEG Access Channels...
17
D. Support for Access................................................................................................18
E. Financial Support for Access.................................................................................18
F. Promotion..............................................................................................................18
G. PEG Access Channel Locations............................................................................18
H. Complimentary Cable Drops and Cable Service for Public Buildings .....................18
I. General.................................................................................................................19
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SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES (Cont'd)
7.13 No City Control------------------------------------------------------------------------------------------19
7.14 Emergency Alert System------------------------------------------------------------------------------19
SECTION 8 CONSTRUCTION STANDARDS--------------------------------------------------------------20-22
SECTION 9. RATE REGULATION-----------------------------------------------------------------------------22
SECTION 10. FRANCHISE FEES--------------------------------------------------------------------------------22-23
SECTION 11. PROTECTION OF CITY AND ENFORCEMENT —
PERFORMANCE BOND------------------------------------------------------------------------- 23-25
SECTION 12. PROTECTION OF CITYAND ENFORCEMENT —
APPROVAL OF SURETIES: RELATION TO OTHER REMEDIES -------------------25
SECTION 13. ENFORCEMENT-----------------------------------------------------------------------------------25-27
SECTION 14. REMEDIES— CUMULATIVE--------------------------------------------------------------------27
SECTION 15. REMEDIES —CONTINUITY OF SERVICE --------------------------------------------------27-28
SECTION 16. FRANCHISE TRANSFER------------------------------------------------------------------------28
SECTION 17. BOOKS AND RECORDS — INSPECTION ---------------------------------------------------28
SECTION 18. PERFORMANCE MONITORING--------------------------------------------------------------29
SECTION 19. MISCELLANEOUS--------------------------------------------------------------------------------29-31
19.1 Time of Essence; Maintenance of Records of Essence ---------------------------------------29
19.2 Effect of Preemption; Federal and State Law ----------------------------------------------------29
19.3 Force Majeure-------------------------------------------------------------------------------------------29
19.4 Severability-----------------------------------------------------------------------------------------------29
19.5 Settlement and Release-------------------------------------------------------------------------------30
19.6 Administration of Franchise---------------------------------------------------------------------------30
19.7 Written Notice--------------------------------------------------------------------------------------------30
19.8 Competitive Equity--------------------------------------------------------------------------------------30
19.9 Entire Agreement----------------------------------------------------------------------------------------30
19.10 Washington Law Applies-----------------------------------------------------------------------------31
Page 126 of 226
ORDINANCE NO.
ORDINANCE OF THE CITY OF PASCO GRANTING A CABLE COMMUNICATIONS SYSTEM
FRANCHISE TO FALCON VIDEO COMMUNICATIONS, L.P., LOCALLY KNOWN AS CHARTER
COMMUNICATIONS
NOW THEREFORE, be it ordained by the City Council of the PASCO, Washington, as follows:
SECTION 1. GRANT OF FRANCHISE
1.1 Grant. The City of Pasco, Washington (hereinafter called the "City") enters into this
Agreement with Falcon Video Communications. L.P., locally known as Charter Communications
(hereinafter "Franchisee") for the provision of Cable Service within the Franchise Area for the benefit
of the residents of the City and to ensure that Franchisee meets the cable -related needs and interests
of the City in light of costs. The City hereby grants to Franchisee a non-exclusive Franchise to
operate a Cable System to provide Cable Service in the City, and to use the Streets and Public Ways
to install, construct, repair, reconstruct, maintain in, on, over, under, upon, across and along any
street or highway, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers,
appliances, attachments, and other property as may be necessary and appurtenant to said Cable
System for that purpose, subject to the terms and conditions of this Agreement, and applicable law.
Nothing in this Franchise shall be construed to prohibit the Franchisee from offering any
communications service over its Cable System so long as Franchisee complies with all applicable law
in so doing.
1.2 Term. The Franchise granted hereby shall expire ten (10) years after its Effective Date
unless lawfully terminated in accordance with its terms and other applicable law.
1.3 Effective Date. This Franchise shall become effective on the 31st day following execution
of the Franchise by both parties, provided that prior to that date the Franchisee: (a) accepts in writing
this Franchise Agreement; and (b) provides all warranties, proofs, and other documents required by
the Franchise.
1.4 Franchise Area. The Franchise Area for which this Franchise is granted consists of all
areas located within the Pasco City limits as they exist on the Effective Date of the Franchise, as well
as any areas which are annexed by the City during the term of this Agreement, subject to Section
7.10(C) herein.
1.5 Effect of Acceptance. By accepting the Franchise, the Franchisee and the City: (a)
acknowledge and accept the City's legal right to issue and enforce the Franchise; (b) agree that
Franchisee will not oppose intervention by the City in any proceeding affecting the enforcement of its
rights under this Franchise; (c) accept and agree to each and every provision contained herein; and
(d) agree that the Franchise was granted pursuant to processes and procedures consistent with
applicable law, and agrees that it will not raise any claim or defense to the contrary.
1.6 Rights Reserved. The rights granted in this Franchise are subject to the City's exercise of
its police powers, and nothing in this Franchise shall be read to limit the exercise of those powers.
The City does not waive requirements of various codes, ordinances, and resolutions, including zoning
codes and codes regarding building permits and fees, or time or manner of construction, as long as
they shall apply under the City's police powers. Any such fees or charges paid, so long as they are
consistent with applicable law, shall be paid in addition to the Franchise Fee required under this
Franchise.
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1.7 Franchisee Compliance. The Franchisee agrees to comply with and is subject to all the
terms, conditions, and provisions of the Pasco City Code Title 15 regarding Cable Systems and Open
Video Systems, and all generally applicable ordinances and regulations of the City necessary to the
safety, health, and welfare of the public which are lawfully adopted pursuant to the City's police
power, including but not limited to generally applicable zoning ordinances and ordinances establishing
construction standards or procedures for use of the Streets. This Franchise is a contract and except
as to those changes that are the result of the City's lawful exercise of its police powers, the City may
not take any unilateral action that materially changes the explicit terms and conditions of this
Franchise, or that materially limits the benefits or materially expands the obligations of the Franchisee
that are granted or imposed by this Franchise. In the event of a conflict between the terms and
conditions of this Franchise and any City ordinance or regulation, this Franchise will prevail. Any
changes to this Franchise must be made in writing signed by the Franchisee and the City.
1.8. Affiliates. Any Affiliate of the Franchisee involved with managing or operating the Cable
system in the City, such that it constitutes a Cable Operator of the Cable System in the City, shall be
subject to the limitations of, and shall comply with the terms and conditions of this Franchise. The
Franchisee shall be fully liable for any act or omission of an Affiliate that controls the Franchisee or is
responsible in any manner for the management of the Cable System that results in a breach of this
Agreement or a violation of applicable law, as if the act or omission was the Franchisee's act or
omission.
1.9 Legal Qualifications. The Franchisee affirms that it meets all the legal qualifications
currently set forth in Section 15.95.24(E) of Pasco City Code Title 15.95 Cable Systems and Open
Video Systems and in the Cable Communication Policy Act of 1984, as amended, 47 U.S.C. §§ 521,
et seq.
SECTION 2. SHORT TITLE AND DEFINITIONS
2.1 This Franchise Agreement shall be known and be cited as the "City of Pasco and Falcon
Video Communications. L.P., locally known as Charter Communications Franchise Agreement." The
following terms, phrases, words and their derivations shall have the meaning ascribed to them herein.
"Affiliate" is defined as set forth in Section 522(2) of Title 47 of the United States Code.
"Cable Act" shall refer to the Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996, and as it may be further amended during the term of the Franchise.
"Cable Operator" is defined as set forth in Section 522(5) of Title 47 of the United States
Code.
"Cable Service" is defined as the one-way transmission to Subscribers of either Video
Programming, or other programming service, and subscriber interaction, if any, which is required for
the selection or use of Video Programming or other programming service, as set forth in Section
522(6) of Title 47 of the United States Code.
Code.
"Cable System" is defined as set forth in Section 522(7) of Title 47 of the United States
"Channel" is defined as set forth in Section 522(4) of Title 47 of the United States Code.
2
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"City", when used to refer to a geographic area, means the City of Pasco, a political
subdivision of the State of Washington, in its present incorporated form or in any later recognized,
consolidated, enlarged, or reincorporated form; when used to refer to an action taken by an entity, the
term refers to the governing body of the City of Pasco or any entity authorized to act on its behalf.
"Enabling Ordinance" means the Ordinance of the City Council of the City of Pasco
known as Pasco City Code Title 15, Cable Systems and Open Video Systems Title 15.95).
"FCC" shall mean the Federal Communications Commission and any successor
governmental entity thereto.
"Franchise Agreement" or "Agreement" shall refer to this contract between the City and
the Franchisee entered into in accordance with applicable law.
"Franchisee" means Falcon Video Communications. L.P., locally known as Charter
Communications, the entity to which this Cable Franchise is granted by the Pasco City Council, and
its lawful and permitted successors, assigns, and transferees.
"Gross Revenues" means all revenue actually received by the Franchisee, as determined
in accordance with generally accepted accounting principles, that is derived from the operation of
Franchisee's network to provide Cable Service within the Franchise Area, including all of the following
a. All charges billed to Subscribers for any and all Cable Service provided by the
Franchisee, including all revenue related to programming provided to the Subscriber,
equipment rentals, late fees, and insufficient fund fees.
b. Franchise Fees imposed on the Franchisee by this Franchise that are passed through
to, and paid by, the Subscribers.
Compensation received by the Franchisee that is derived from the operation of the
Franchisee's network to provide Cable Service with respect to commissions that are
paid to Franchisee as compensation for promotion or exhibition of any products or
services on the Franchisee's network such as a "home shopping" or similar Channel
subject to paragraph 4 below.
d. A pro rata portion of all revenue derived by the Franchisee or its Affiliates pursuant to
compensation arrangements for advertising derived from the operation of the
Franchisee's network to provide Cable Service within the Franchise Area subject to
paragraph 1 below. The allocation shall be based on the number of Subscribers in the
local entity divided by the total number of Subscribers in relation to the relevant
regional or national compensation arrangement.
For purposes of this Franchise, the term "gross revenues" set forth above does not include any of the
following:
Amounts not actually received, even if billed, such as bad debt; refunds, rebates, or
discounts to Subscribers or other third parties; or revenue imputed from the provision
of Cable Services for free or at reduced rates to any person as required or allowed by
law, including, but not limited to the provision of these services to public institutions,
public schools, governmental agencies, or employees except that forgone revenue
chosen not to be received in exchange for trades, barters, services, or other items of
value shall be included in gross revenue.
3
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2. Revenues received by an Affiliate or any other person in exchange for supplying goods
or services used by the Franchisee to provide Cable Services. However, revenue
received by an Affiliate of the Franchisee from the Affiliate's provision of Cable Service
shall be included in gross revenues as follows:
(i) To the extent that treating the revenue as revenue of the Affiliate, instead of
revenue of the Franchisee, would have the effect of evading the payment of fees
that would otherwise be paid to the City.
(ii) The revenue is not otherwise subject to fees to be paid to the City.
3. Revenue derived from services classified as noncable services under federal law,
including, but not limited to, revenue derived from telecommunications services and
information services, other than Cable Services, and any other revenues attributed by
the Franchisee to noncable services in accordance with FCC rules, regulations,
standards, or orders.
4. Revenue paid by Subscribers to "home shopping" or similar networks directly from the
sale of merchandise through any home shopping Channel offered as part of the Cable
Services. However, commissions or other compensation paid to the Franchisee by
"home shopping" or similar networks for the promotion or exhibition products or
services shall be included in gross revenue.
5. Revenue from the sale of Cable Services for resale in which the reseller is required to
collect a fee similar to the Franchise Fee from the reseller's Subscribers.
6. Amounts billed to, and collected from, Subscribers to recover any tax, fee, or surcharge
imposed by any governmental entity on the Franchisee, including, but not limited to,
sales and use taxes, gross receipts taxes, excise taxes, utility users taxes, public
service taxes, communication taxes, and any other fee not imposed by this section.
7. Revenue from the sale of capital assets or surplus equipment not used by the
purchaser to receive Cable Services from the seller of those assets or surplus
equipment.
8. Revenue from directory or Internet advertising revenue, including, but not limited to,
yellow pages, white pages, banner advertisement, and electronic publishing.
9. Revenue received as reimbursement by programmers of specific, identifiable
marketing costs incurred by the Franchisee for the introduction of new programming.
10. Security deposits received from Subscribers, excluding security deposits applied to the
outstanding balance of a Subscriber's account and thereby taken into revenue.
For purposes of this Franchise, in the case of a Cable Service that may be bundled or integrated
functionally with other services, capabilities, or applications, the Franchise Fee shall be applied only to
the gross revenue, as defined in subsections a -d above, attributable to Cable Service. Where the
Franchisee or any Affiliate bundles, integrates, ties, or combines Cable Services with noncable
services creating a bundled package, so that Subscribers pay a single fee for more than one class of
service or receive a discount on Cable Services, gross revenues shall be determined based on an
equal allocation of the package discount, that is, the total price of the individual classes of service at
Il
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advertised rates compared to the package price, among all classes of service comprising the
package. The Franchisee's offering a bundled package shall not be deemed a promotional activity. If
the Franchisee does not offer any component of the bundled package separately, the Franchisee
shall declare a stated retail value for each component based on reasonable comparable prices for the
product or service for the purpose of determining Franchise Fees based on the package discount.
For the purposes of determining gross revenue, Franchisee shall use the same method of determining
revenues under generally accepted accounting principles as that which Franchisee uses in
determining revenues for the purpose of reporting to national and state regulatory agencies.
"Normal Business Hours" means those hours during which most similar businesses in
the community are open to serve customers. In all cases, Normal Business Hours shall include some
evening hours at least one (1) night per week and some weekend hours.
"Other Programming Service" means information that a Cable Operator makes available
to all Subscribers generally, as set forth in Section 522(14) of Title 47 of the United States Code.
"Signal" means any analog or digital electrical or light impulses carried on the Cable
System, whether one-way or bidirectional.
"State" shall mean the State of Washington.
"Street", "Public Way" or "Right of Way" means land acquired or dedicated for roads
and public streets and easements, including but not limited to Utility Easements, which, under the City
Charter, the municipal code, city ordinances, and applicable laws, the City has authority to grant
permits, licenses, or leases for use thereof, or has regulatory authority over. "Street", "Public Way" or
"Right of Way" does not include buildings, parks, poles, conduits or similar facilities or property owned
by or leased to the City, including, by way of example and not limitation, structures in the public way
such as utility poles, light poles and bridges.
"Subscriber" or "Customer" shall mean any person lawfully receiving Cable Service
from the Franchisee.
"Tri -Cities Area" shall include the Cities of Pasco, Richland, West Richland, Kennewick,
Benton County and Franklin County.
"Utility Easement" means any easement owned by the City and acquired, established,
dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities,
excluding easements not specifically allowing license, franchise or lease holders.
"Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station, as set forth in Section
522(20) of Title 47 of the United States Code.
"Video Service" means Video Programming services, Cable Service, or Open Video
System service provided through facilities located at least in part in public rights-of-way without regard
to delivery technology, including Internet protocol or other technology. This definition does not include
(1) any Video Programming provided by a commercial mobile service provider defined in Section
322(d) of Title 47 of the United States Code, or (2) Video Programming provided as part of, and via, a
service that enables users to access content, information, electronic mail, or other services offered
over the public Internet.
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2.2 All words appearing in this Agreement which are identical to the words defined in Section
2.1 shall have the meanings set forth in Section 2.1. When not inconsistent with the context, words
used in the present tense include the future, words in the plural number include the singular number,
and words in the singular number include the plural number. The words "shall" and "will" are
mandatory and "may" is permissive. Words not defined herein shall be given the meanings set forth
in the Cable Act, and, if not defined therein, shall be given their common and ordinary meaning.
SECTION 3. FRANCHISE — LIMITATIONS
3.1 The Franchise does not confer rights other than as provided by this Franchise Agreement,
or as provided by federal or State law.
3.2 No privilege or exemption is granted or conferred except those specifically prescribed
herein, or provided for by State or federal law.
3.3 The City may delegate its authority except as prohibited by federal or State law.
3.4. The City reserves the right to assert all immunities and defenses that the City may have
under applicable law.
3.5 The Franchisee shall at all times be subject to the lawful exercise of the police power of the
City, and its other lawful authority, subject to Section 1.7 herein.
3.6. This Franchise is only for the provision of Cable Services. It shall not act as a bar or in any
respect prevent imposition of additional or different conditions, including additional fees related to the
provision of, or the use or occupancy of the Rights -of -Way to provide, noncable services, subject to
applicable law. Nothing in this section is intended to expand or contract the City's rights to regulate
noncable services nor Franchisee's right to provide lawful services over its Cable System.
3.7 Nothing in this Franchise Agreement shall be read to create an expectancy of renewal or to
in any respect entitle the Franchisee to renewal or extension of this Franchise, except as may be
expressly required by applicable law. The City and Franchisee agree that any proceedings
undertaken by the City that relate to the renewal of the Franchisee's Franchise shall be governed by
and comply with the provisions of Section 626 of the Cable Act, or any such successor statute.
3.8 Any privilege claimed under any Franchise by the Franchisee in any Street or other public
property where there exists prior lawful occupancy of the Streets or other public property by another
person shall be subject to Section 8.2.G. of this Franchise.
3.9 The Franchisee shall, by acceptance of the Franchise granted herein, defend the City, its
officers, boards, commissions, agents, and employees for all claims for injury to any person or
property caused by the negligence of the Franchisee in the construction or operation of the Cable
System and in the event of a determination of liability shall indemnify and hold the City, its officers,
boards, commissions, agents, and employees harmless from any and all liabilities, claims, demands,
or judgments growing out of any injury to any person or property as a result of the negligence of the
Franchisee arising out of the construction, repair, extension, maintenance, operation or removal of its
wires, poles or other equipment of any kind or character used in connection with the operation of the
Cable System. The City shall give the Franchisee written notice of its obligation to indemnify the City
within fifteen (15) days of receipt of a lawsuit or similar action pursuant to this section. In the event
any such lawsuit or similar action arises, the City shall tender the defense thereof to the Franchisee,
and Franchisee shall have the right to defend, settle or compromise any claims arising hereunder. If
the City determines in good faith that its interests cannot be represented by the Franchisee, the
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Franchisee shall be excused from any obligation to represent the City. Notwithstanding the foregoing,
the Franchisee shall not be obligated to indemnify the City for any damages, liability or claims
resulting from the willful misconduct or negligence of the City or for the City's use of the Cable
System, including any Public, Education and Government ("PEG") Channels.
3.10 City and Franchisee shall have all rights afforded them pursuant to 47 U.S.C. § 555.
SECTION 4. NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED
4.1. This Franchise Agreement and the right it grants to use and occupy the public Right of
Way is not exclusive and does not explicitly or implicitly preclude the issuance of other franchises to
operate Cable Systems within the City, affect the City's right to authorize use of the public Right of
Way by other persons to operate Cable Systems, or affect the City's right to itself construct, operate
or maintain a Cable System, in which case the City's rights shall not differ from any other provider of
Cable Service or Video Service subject to Section 19.8.
SECTION 5. NO WAIVER
5.1 The failure of the City or the Franchisee, upon one or more occasions, to exercise a right
or to require compliance or performance under this Franchise Agreement or any other applicable law
shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance,
unless such right has been specifically waived in writing.
5.2 Waiver of a breach of this Franchise Agreement or the Enabling Ordinance is not a waiver
of any similar or different breach. Neither the grant of this Franchise nor any provision herein shall
constitute a waiver or bar to the exercise of any governmental right or power of the City, including,
without limitation, the power to exercise eminent domain, subject to Section 1.7 of this Franchise.
SECTION 6. CUSTOMER PROTECTION
6.1 Customer Protection. The Franchisee hereby represents and warrants that on the Effective
Date of this Franchise it meets or exceeds the FCC Customer Service Standards (47 C.F.R.
§ 76.309(c), 47 C.F.R. § 76.1602-1604, and 47 C.F.R. § 76.1619 attached as Appendix A), and
agrees to comply with FCC Customer Service Standards throughout the term of this Agreement as
they may be amended or modified from time to time.
6.2 Privacy. The City and the Franchisee shall comply with the requirements of Cable Act
Section 631 (47 U.S.C. § 551).
6.3 Sale of Subscriber Lists and Personalized Data.
A. The Franchisee shall be subject to the provisions of federal law regarding limitations
on the Franchisee's collection and use of personally identifiable information, and the protection of
Subscriber privacy.
B. Nothing in this Franchise shall be read to limit the City's right to adopt other laws
pursuant to its general police powers, and to apply those laws to Franchisee, subject to Section 1.7
and applicable law.
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6.4 Maintenance and Complaints.
A. The Franchisee shall render efficient service, make repairs promptly, and interrupt
service only for good cause and for the shortest time possible. The Franchisee shall, at all times,
employ ordinary care and shall use commonly accepted methods and devices to prevent failures and
accidents which are likely to cause damage.
B. Complaints concerning billing, employee courtesy, programming, safety, or the
Franchisee's operational policies, as well as all other complaints, including complaints about outages,
Signal quality, and service disruptions, shall be recorded where practicable. The Franchisee will
maintain records of complaints for three (3) years. Copies of the complaint records shall be provided
to the City on request.
C. The Franchisee shall maintain a repair force of technicians sufficient to comply with
this Franchise which includes the FCC Customer Service Standards under normal operating
conditions and to respond to Subscriber complaints, loss of service, or requests for service. The
Franchisee shall have in place at all times the equipment necessary to locate and correct Cable
System malfunctions.
D. All Subscribers and members of the general public in the City may direct complaints
and inquiries regarding the Franchisee's service or performance to the City. In addition to such other
actions it may take to enforce this Franchise, upon the request of all parties involved in a dispute, the
City may act as a board of review of a complaint or dispute, and recommend action for resolution.
6.5 Non-discrimination and Equal Employment Opportunity.
A. Throughout the term of this Franchise, the Franchisee shall fully comply with the
equal employment opportunity requirements of federal, State, and local law and, in particular, FCC
rules and regulations relating thereto. Upon request by the City, the Franchisee shall furnish the City
a copy of the Franchisee's annual statistical report filed with the FCC, along with proof of the
Franchisee's annual certification of compliance. In the event the Franchisee is at any time determined
by the FCC not to be in compliance with said FCC rules or regulations, the Franchisee shall notify the
City within 15 days of its notice of such noncompliance from the FCC.
B. The Franchisee shall not deny, delay, or otherwise burden service or discriminate
against Subscribers within its Franchise Area on the basis of age, race, creed, religion, color, sex,
national origin, marital status, sexual orientation, physical or mental disability, or political affiliation.
C. The Franchisee shall not deny Cable Service to any group of potential Subscribers
because of the income of the residents of the area in which the group resides.
D. The Franchisee shall ensure that its services are accessible, as far as reasonably
practical, to people with disabilities. All programming received by the Franchisee with closed -
captioning shall be retransmitted by the Cable System including the closed -caption Signal. The
Franchisee shall comply with all applicable federal, State and local laws.
6.6 Parental Control Device. Upon request, the Franchisee shall provide parental control
devices or technology to any Subscriber.
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SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES
7.1. Cable System Design and Functionality
A. As of the Effective Date of this Agreement, the Franchisee operates, maintains and
makes available to all residents of the City its existing 860 MHz Hybrid Fiber -Coax Cable System. The
Franchisee agrees that, throughout the term of this Agreement, subject to applicable law, it will
operate, maintain and make available to all residents of the City a Cable System that has comparable
or greater capacity than that which it provided on the Effective Date of this Agreement.
B. The Headend has 24-hour backup power supply. Each node power supply has a
minimum four-hour backup and hub sites and optical transfer nodes have six -hour backup power
supplies. Such equipment has been constructed and will be maintained so as to cut in automatically
upon failure of the commercial utility power, and to revert automatically to a standby mode when
alternating current power returns, and complies with all utility and other safety regulations to prevent
the alternate power supply from powering a "dead" utility line in order to prevent injury to any person.
C. Franchisee shall install and maintain necessary equipment to ensure that all closed
captioning programming received by the Cable System shall include the closed caption Signal so long
as the closed caption Signal is provided consistent with FCC standards.
D. Franchisee agrees to maintain the Cable System in a manner which meets or
exceeds FCC technical quality standards at 47 C.F.R. § 76 Subpart K as may be amended or
modified from time to time, which regulations are expressly incorporated herein by reference.
E. The Franchisee shall comply with all applicable federal and State laws, as they may
from time to time be amended, concerning system compatibility with Subscribers' consumer electronics
equipment.
F. Pre-existing PEG Access Transport. As of the Effective Date of this Agreement the
Franchisee provides transport of PEG programming between the currently existing demarcation points
at the addresses listed below and the Franchisee's headend. The Franchisee agrees to continue to
provide and maintain this PEG transport at no cost to the City throughout the term of this Agreement.
1. Pasco City Hall, 525 N. 3rd Ave., Pasco, WA 99301.
2. Richland City Hall, 505 Swift Blvd., Richland, WA 99352, or, after Richland
relocates City Hall to 626 Swift Blvd., Richland, WA 99352, between a mutually
agreeable demarcation point at 626 Swift Blvd. and the Franchisee's headend.
3. Washington State University, 2710 Crimson Way, Richland, WA 99354.
4. Richland School District Special Projects Building, 615 Snow Ave.,
Richland, WA 99352.
G. During the term of this Franchise, the City shall deliver PEG video programming to
the currently existing or mutually agreed upon demarcation points for the addresses listed in Section
7.15. above, using Franchisee -provided transport described in Section 7.1.F., in a format reasonably
acceptable to Franchisee.
H. Additional or Replacement PEG Transport. During the term of this Franchise, the
City may request replacement (of any of the locations listed in Section 7.1.F) or additional PEG
transport within the Franchise Area. If the City chooses to move a location identified in Section 7.11
to a new address, deliver PEG video programming from an address not identified in Section 7.11, or
create a new access center, the City may elect to have the Franchisee provide and maintain an
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electronic connection between the moved or new location and the Cable System headend. At the
City's request and at its expense, this connection shall be designed so that the City can: (a) send
Signals to the headend on multiple channels simultaneously; (b) receive Signals from other locations
on multiple channels simultaneously; (c) remotely route Signals originated at the access center or at
other locations onto any PEG access or institutional use channels on the Cable System; and
(d) otherwise control the Signals to allow for smooth breaks, transitions, and insertion of station IDs
and other material. The City shall request and Franchisee shall provide a written estimate of the costs
associated with such PEG construction, equipment, maintenance, and transport, and if approved by
the City, Franchisee shall complete the moved or new PEG connection at the expense of the City.
Franchisee shall construct such PEG connections to the extent feasible within one hundred and
twenty (120) days of receiving written request from the City, or as otherwise agreed upon by the City
and Franchisee.
7.2. Interconnection.
A. Interconnection with Other Systems Serving the City.
1. At the City's request, the Franchisee shall interconnect its Cable System with
other Cable Systems serving this Service Area or an area adjacent to the Service Area for the
purpose of sharing PEG programming, provided the Franchisee is able to reach agreement with the
other operator for the interconnection on reasonable terms and conditions, and the City obtains any
necessary consent from the other Cable System's franchising authority. Nothing in this subsection
shall be construed as requiring the Franchisee to increase the number of Channels for PEG
programming beyond the maximum number agreed to herein.
2. The Franchisee and the City agree that on the Effective Date there are no
Cable Systems or Open Video Systems, not owned by the Franchisee, operating within the City of
Pasco. However, if in the future a Cable System or Open Video System is constructed in the City,
Franchisee will negotiate in good faith with the City to interconnect its Cable System with such other
Cable System or Open Video System for the exchange of PEG access programming. The costs of
such interconnection shall be fully borne by the Cable Operator or Open Video System operator
seeking interconnection. There shall be no charge to the City or its Designated Access Provider for
the use of the interconnection for delivery of PEG access programming from the Cable System to
other Cable Systems or Open Video Systems.
B. Cooperation. The City understands that interconnection requires cooperation from
other Cable System operators. The City shall make every reasonable effort to assist Franchisee in
achieving the cooperation necessary to realize interconnection.
C. Franchisee Not a Common Carrier. Nothing in this Agreement shall be deemed to
require the Franchisee to assume the status of a common carrier as defined under applicable law.
7.3 Cable System Rebuild.
A. During any future major rebuild of the Cable System and no later than one -hundred
and twenty (120) days prior to the date construction on the rebuild of any portion of the system is
scheduled to begin, the Franchisee shall provide a detailed Cable System design and construction
plan and timeline, which shall include at least the following elements or their contemporary equivalent
to the extent necessary:
Design type; fiber, HFC (hybrid fiber coax) cable, or other design; number and
location of hubs or nodes.
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2. Distribution system — cable, fiber, equipment to be used.
3. Headend design and reception facilities.
4. Plans for standby power at headend, hubs/nodes, and satellite terminals. The
plan should state the make and model number of equipment to be used as well
as standby time capacity.
5. Longest amplifier cascade in the Cable System (number of amplifiers, number
of miles, type of cable/fiber).
6. Construction maps for the rebuild, subject to confidentiality to the extent
authorized by law. If the City cannot guarantee the confidentiality of
Franchisee's construction maps, Franchisee will make those maps available for
inspection during normal business hours. The rebuild will be shown on maps of
industry standard scale using standard symbols, and shall depict all electronic
and physical features of the cable plant.
B. The City shall have forty-five (45) days from the date the Franchisee provides the
City the design and construction plans for review to submit comments on the plans. The Franchisee
agrees to consider any comments which are timely submitted, and to submit a written response to the
City's comments prior to commencing the rebuild.
7.4 Performance Testing.
A. Franchisee shall perform the following tests on its Cable System:
All tests required by the FCC; and
2. All other tests reasonably necessary to determine compliance with technical
standards adopted by the FCC at any time during the term of this Franchise.
B. Franchisee shall maintain written records of all results of its Cable System tests as
required by this Franchise, performed by or for the Franchisee, for a period of three (3) years. Such
test results shall be available for inspection by the City upon reasonable request.
C. Tests may be witnessed by representatives of the City, provided the City provides
advance written notice of its intent to witness such tests.
7.5 System Inspections. The City may inspect the Franchisee's Cable System and any
construction or installation work performed under this Franchise in a manner that does not result in
interruption of service to determine compliance with the Franchise Agreement, and applicable federal,
State and local law, subject to Section 1.7.
7.6 Other Construction Procedures. The Franchisee:
A. shall follow a Cable System design and construction plan consistent with its
obligations under this Franchise, and use the equipment specified (or substitute equipment of
equivalent or better quality) in such distribution system design plan and construction plan (except
insofar as those plans, if carried out, would result in construction of a system which would not meet
requirements of applicable law, subject to Section 1.7; and except for such minor modifications as are
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typical in the industry).
B. shall use equipment of good and durable quality;
C. shall notify City residents in any construction area at least one day in advance before
first entering onto private property to perform any work which will involve excavation, replacement of
poles, tree trimming, or other major work on that private property, subject to applicable law, except in
case of emergencies;
D. shall ensure that any contractor or subcontractor used for work and construction,
operation, or repair of Cable System equipment must be properly licensed under laws of the State and
any generally applicable law, and each contractor or subcontractor shall have the same obligations
with respect to its work as Franchisee would have under this Agreement and other applicable law if
the work were performed by Franchisee;
E. shall be responsible for ensuring that the work of contractors and subcontractors is
performed consistent with this Franchise Agreement and applicable law, shall be responsible for all
acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or
omissions by any contractor or subcontractor, and shall implement a quality control program (this
section is not meant to alter tort liability of Franchisee to third parties);
F. shall provide as -built and design maps in electronic format for the City's review after
the completion of system construction in the City; and
G. shall make available to the City upon request maps showing the actual location of
additions or extensions to its lines within thirty (30) days of completion of Cable System construction
in any geographic area.
7.7 System Maintenance.
A. Interruptions to be minimized. Whenever possible, the Franchisee shall schedule
maintenance so that activities likely to result in an interruption of service are performed during periods
of minimum Subscriber use of the Cable System. The Franchisee shall make best efforts to minimize
interruptions of service consistent with reasonable and customary construction practices.
B. Maintenance Practices. In addition to its other obligations, the Franchisee shall:
(a) use replacement components of good and durable quality, with characteristics better or equal to
replaced equipment; and (b) follow the more stringent of industry maintenance standards or corporate
maintenance standards.
7.8 System Performance. The Cable System shall meet or exceed the standards set forth in
47 C.F.R. § 76 subpart K, as those standards may be in effect at all times. If the FCC standards are
eliminated and not replaced, the City may continue to enforce the standards which existed prior to the
date of elimination. If FCC standards are amended or replaced, the City may enforce such new FCC
standards.
7.9 Future System Upgrades/Rebuilds. The Franchisee shall provide additional or new
facilities and equipment, expand Channel capacity, and otherwise upgrade or rebuild its Cable
System throughout the Franchise term as required to incorporate improvements in technology, as
necessary and where financially and technically reasonable.
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7.10 Service Availability.
A. The Franchisee shall construct, operate, maintain and extend its Cable System so
that it is able to provide service throughout the Franchise Area described in Section 1.4 pursuant to
Section 7.10. B.1.
B. System Extension Requirements.
1. Franchise Area Boundaries. For areas within the Franchise Area that are
unserved and for areas that may be annexed to the City during the Franchise term pursuant to
Section 7.10.C, the Franchisee must extend service upon request to any prospective Subscriber at
published service rates, without any additional charge for extending service, other than service drop
installation, when there are at least thirty (30) homes per linear strand mile of cable as measured from
the Franchisee's closest trunk, distribution, or feeder cable that is actively delivering Cable Service as
of the date of such request for service. If such residence is located within one hundred twenty-five
(125) feet of the Franchisee's feeder cable, the Cable Service will be provided at the Franchisee's
published rate for standard installations. Notwithstanding the foregoing, the Franchisee shall have the
right, but not the obligation, to extend the Cable System into any portion of the Franchise Area where
another operator is providing Cable Service.
2. Cost Sharing. No Subscriber shall be refused service arbitrarily. However, if an
area does not meet the density requirements of Section 7.10. B.1 above, the Franchisee shall only be
required to extend the Cable System to Subscribers in that area if the Subscribers are willing to share
the capital costs of extending the Cable System. The Franchisee may require that payment of the
capital contribution in aid of construction borne by such potential Subscribers be paid in advance.
Subscribers who are in areas that do not meet the density requirements of Section 7.10.13.1 shall also
be responsible for any standard/non-standard installation charges to extend the Cable System from
the tap to the residence.
3. Subscriber Drops. The Franchisee shall not assess any additional cost for
service drops of one hundred twenty-five (125) feet or less (a "Standard Installation") unless
extraordinary circumstances justify a higher charge, subject to Section 7.10.13.4. Where a drop
exceeds one hundred twenty-five (125) feet in length, the Franchisee may charge the Subscriber for
the difference between the Franchisee's actual costs associated with a Standard Installation and the
Franchisee's actual cost of installing the longer drop.
4. Undergrounding of Drops. In any area where the Franchisee would be entitled
to install a drop above -ground, the Franchisee may provide the Subscriber the option to have the drop
installed underground, but may charge the Subscriber the difference between the standard cost (or
actual cost for a drop greater than one hundred twenty-five (125) feet) of the above -ground installation
and the actual cost of the underground installation.
5. Time for Extension. The Franchisee shall extend service as described herein to
any prospective Subscriber who requests it subject to other provisions of this Franchise. If the
prospective Subscriber is located in the Franchise Area and service can be provided by a Standard
Installation, service shall be provided within seven (7) business days of the request under normal
operating conditions, subject to other provisions of this Franchise and Section 6.1.
C. Annexation.
1. City Notice of Annexation. In the event the City annexes any area which is
being provided Cable Service by the Franchisee or otherwise modifies the Franchise Area, the City
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shall provide to Franchisee, within ten (10) working days of passage by City Council, a copy of the
City ordinance, legal description, if not found in the ordinance, addresses and a map defining the
annexed area or other changes within the Franchise Area. The Franchisee shall not be obligated to
collect and remit Franchise Fees until such notice and information has been received by the
Franchisee.
Every written notice served upon Franchisee for this subsection shall be
delivered or sent (with proof of delivery) to:
Attn: Director, Government Relations
Charter Communications
222 NE Park Plaza Drive, #231
Vancouver, WA 98684
With a copy to:
Attn: Vice President, Government Affairs
Charter Communications
12405 Powerscourt Drive
St. Louis, MO 63131
Franchisee may indicate a different delivery address via written notice to the City,
pursuant to subsection 19.7.
2. Franchisee Update of Subscriber Information. Following annexation or a
modification to the Franchise Area, Franchisee shall provide written notice to the City, within ninety
(90) days following an annexation or other modification to the Franchise Area, indicating that
Subscriber addresses within the annexation area or modified Franchise Area have been updated to
reflect the City as the new franchising authority. Franchisee shall pay the City Franchise Fees on
revenue received from the operation of the Cable System to provide Cable Services in the annexation
area or modified Franchise Area commencing ninety (90) days after the Franchisee's receipt of City's
written notice.
3. Franchisee Service to Newly Annexed Areas. Upon the annexation of any
additional area by the City, the following conditions apply:
a. If the annexed area is unserved by a Cable Operator, Franchisee agrees
to extend service pursuant to Section 7.10.6. of this Franchise
Agreement.
b. If the annexed area is served by another operator, Franchisee has the
right, but not the obligation, to extend the Cable System into the annexed
area.
7.11 Public. Educational. and Government Use
A. Designated Access Providers.
1. The City shall designate PEG access providers ("Designated Access
Providers"), including to itself, to control and manage the use of any or all of the PEG Access
Channels and/or resources provided by the Franchisee under this Agreement. The City will not
designate the Franchisee to serve as a Designated Access Provider.
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2. The Cities of Richland and Pasco have agreed to collaborate with regard to the
development of PEG access and the identification of Designated Access Providers. Based upon
public input received, the Cities wish to encourage the development of a Tri -Cities approach to the
provision of PEG access programming and the delivery of PEG access services. The Cities may
designate an entity (ies) to operate a community media center ("CMC") and to operate PEG Access
Channel(s). The Government Access channels shall continue to be operated by the local government
staff unless the City chooses to designate an entity other than itself, and other than the Franchisee, to
operate the Government Access channels.
B. PEG Access Channel Capacity. On the Effective Date of this Franchise, the
Franchisee provides three (3) downstream Channels to cable Subscribers for PEG access in Pasco.
The Franchisee shall provide throughout the term of this Agreement three (3) PEG Access Channels,
subject to the provisions of this Section ("PEG Access Channel").
1. The Franchisee may seek the return of up to one (1) PEG Access Channel if
any PEG Access Channel is not programmed for at least thirty-six (36) hours per week with non-
repetitive locally produced PEG video programming measured on a quarterly basis through the
second anniversary of this Franchise, and at least forty-eight (48) hours per week measured on a
quarterly basis thereafter.
a. For the purposes of this section, "locally produced PEG video programming"
means programming produced or provided by any City resident, the City, or any
local public or private agency that provides services to residents of the City; or
any transmission of a meeting or proceeding of any local governmental entity
within the City. A program will not be deemed to constitute "locally produced
PEG video programming" if it duplicates programming otherwise carried by
Franchisee on the Cable System.
Franchisee shall be required to carry two (2) PEG Access Channels pursuant to
this Section so long as those Channels are utilized by the City for locally
produced PEG video programming in any quantity. Time allocated to
character -generated or similar programming shall be excluded from the
determination of when such Channel is in use and programmed.
The City shall keep records of the amount of locally produced PEG video
programming carried on the PEG Access Channels. Upon request by the
Franchisee, not to exceed two (2) requests per calendar year, the City or its
Designated Access Provider shall provide a report of the amount of locally
produced PEG video programming carried on the PEG Access Channels.
b. The Franchisee shall give the City four (4) months' notice of its intent to reclaim
a PEG Access Channel. If during that four (4) month period the number of
hours per week of locally produced PEG video programming meets or exceeds
the programming levels set forth in this Section for four (4) consecutive weeks,
the City shall retain the use of the Channel for PEG access purposes.
c. The City may gain the return of a PEG Access Channel by providing
information to the Franchisee that demonstrates that the Channel can be
programmed for thirty-six (36) hours per week with locally produced PEG video
programming (as defined herein). At such time, the Franchisee shall have
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three (3) months to restore the PEG Access Channel for the use by the City or
its Designated Access Provider for PEG access purposes.
d. The PEG Access Channels, facilities, and equipment shall not be used for the
cablecast of a program whose primary purpose is commercial or for profit, such
as leasing capacity. Sponsorship recognition is permitted in the following form
only. A program sponsor or underwriter may be recognized by name and/or
logo in the 15 second video and/or audio acknowledgement window at the
beginning and end of a sponsored or underwritten program. By way of
example, allowable sponsorship recognition could be: "Support for this program
was underwritten by a donation from Sponsor ABC." Recognized sponsors
may be individuals, private companies or organizations.
2. PEG Access Channel Quality and Capability.
a. The Franchisee shall not be required to carry any PEG Access Channel in a
higher quality format than that of the Channel Signal delivered to Franchisee.
Franchisee shall distribute the PEG Access Channel Signal without material
degradation, provided, however, this subsection shall not apply to the
conversion of PEG Access Channel Signals to a different technical format, such
as when the City delivers a PEG Signal in high-definition ("HD") format and
Franchisee converts such Signal to standard definition format for cablecasting,
unless Franchisee has agreed to carry the PEG Access Channel in HD
pursuant to Section 7.11.13.4 herein. The PEG Signal must be viewable by all
Subscribers without the need for any equipment other than the equipment,
including converters, that a Subscriber requires to receive the lowest cost level
of Cable Service. The PEG Access Channel, to the extent permitted by the
Signal provided to the Franchisee, shall function with the same picture and
sound quality level as other like Channels.
b. Upon request, throughout the term of the Franchise, Franchisee shall provide
updated contact information for a local technical representative with local
knowledge of the City's PEG operations, who shall be available to the City for
consultation on technical matters as the need may arise. This technical
representative shall be accessed through a direct telephone number available
to the City (as opposed to a general public number). The Franchisee shall not
impose any fees or charges to the City for this technical consultation. If such
consultation is insufficient to diagnose the matter in question, within twenty-four
(24) hours of a written request from City to the Franchisee identifying a
technical problem with a PEG Access Channel Signal and requesting
assistance, Franchisee will provide, free of charge to City, diagnostic services
to determine whether or not a problem with a PEG Signal is the result of
matters for which Franchisee is responsible and if so, Franchisee will take
prompt corrective action, free of charge to City, subject to the limitations on
Franchisee's responsibilities outlined in Section 7.11 herein. If the problem
persists and there is a reasonable dispute about the cause, then the parties
shall meet with engineering representation from Franchisee and the City in
order to mutually determine the course of action to remedy the
problem. Nothing herein shall be construed to obligate Franchisee to correct
problems or take any other action caused by City's Signal, City's network or
internal wiring, City's equipment, PEG access program content or other issues
within City's reasonable control.
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3. Indemnification and Restrictions. The Franchisee shall not be responsible for
operating and managing the PEG Access Channel(s) including approving any PEG programming
and/or for obtaining releases from programmers for any PEG programming. The City shall hold
harmless the Franchisee from and against any and all liability resulting from the City's use of the
aforementioned PEG Access Channel(s). The City shall require all local programmers or users of any
of the PEG Access Channels to agree in writing to authorize Franchisee to transmit programming
consistent with this Franchise and to indemnify, defend, and hold harmless Franchisee and the City
from and against any and all liability, claim, judgment, action, loss, cost, damage, or expense
(including the cost of defending claims or litigation) arising out of or resulting from programming
produced or provided by third parties which is cablecast on a PEG Access Channel.
4. High Definition PEG Access Channel. Following the third anniversary of this
Franchise, Franchisee shall provide one (1) PEG Access Channel in HD format. The Franchisee
shall carry the HD format Access Channel Signals provided by the City or its Designated Access
Provider and the closed captioning, stereo audio, and secondary audio components associated with
the programming. The City or its Designated Access Provider shall be responsible for providing the
PEG Access Channel Signal in an HD format. The Franchisee shall transport and distribute the PEG
Access Programming without material degradation. The City shall be responsible for the costs of all
transmission equipment, including HD modulator and demodulator, and encoder or decoder
equipment, and multiplex equipment, required in order for Franchisee to receive and distribute the
City's HD PEG Access Channel Signal, or for the cost of any resulting upgrades to the video return
line. The HD PEG Access Channel provided under this section will replace one of the three (3) PEG
Access Channels described in Section 7.11.6. and will not be an additional PEG Access Channel. If
Franchisee no longer provides any Channels in the City in HD, then it will have no obligation to
provide an HD PEG Access Channel under this paragraph but shall continue to have an obligation to
provide PEG Access Channels consistent with this Franchise.
At such time that the Franchisee offers all Channels on its Cable System in HD format, the
Franchisee shall carry all PEG Access Channels in HD format.
C. Requirements Regarding Rules and Procedures for use of PEG Access Channels.
1. The Franchisee may not exercise any editorial control over the content of
programming on the designated PEG Access Channels (except for such programming the Franchisee
may produce and cablecast on the same basis as other PEG Access Channel users).
2. Neither the City nor the Franchisee shall exercise editorial control over the
content of programming on the designated PEG Access Channels (except for such programming that
the City or Franchisee may produce and cablecast, respectively.
D. Support for Access. The City and the Franchisee agree that support of PEG Access
is a partnership. It is the intent of the City to utilize Franchise Fees as necessary to defray the costs
of PEG Access Channels and to support the development of a Community Media Center. The
Franchisee agrees that it will commit funding in support of PEG Access as contained in Section
7.11.E. of this Agreement in accordance with applicable federal law. Franchisee may, pursuant to
FCC rules, pass through to Subscribers the costs associated with meeting PEG Access obligations
contained in this Franchise.
E. Financial Support for PEG Access. Franchisee shall provide to the City thirty-five
(35) cents per month per Subscriber for PEG capital support (the "PEG Fee"). Each PEG Fee
payment shall be due and payable no later than forty-five (45) days following the end of the quarter
from when the PEG Fee takes effect. The new payment terms and conditions of this Franchise shall
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take effect sixty (60) days after the Effective Date of the Franchise. The Franchisee shall be obligated
to provide the PEG Fee described in this Section so long as one or more PEG Access Channels are
being programmed pursuant to Section 7.11.13.
The City agrees to use the PEG Fee in a manner consistent with 47 U.S.C. § 542(G)(2)(C)
and any other applicable provisions of the Cable Act, applicable law, or regulations as currently
written or amended in the future. The City and Franchisee agree that the PEG Fee is in addition to the
Franchise Fee, and falls within the exception at 47 U.S.C. § 542(g)(2)(C). Franchisee shall be entitled
to recover the PEG Fee from Subscribers, as allowed by law. The City shall permit a duly authorized
representative of the Franchisee, upon receipt of advance written notice, to examine during normal
business hours and on a non -disruptive basis, any and all records, equipment and facilities to ensure
the City's compliance with this section.
F. Promotion. Franchisee shall, throughout the term of this Agreement, provide the
following services to the City and its Designated Access Provider(s).
1. The parties acknowledge that Franchisee contracts with a third party or
parties to provide on-screen and on-line program listings. Franchisee shall provide the City with
information about and introduction to the service provider(s) so that detailed program information for
each PEG Access Channel can be included in the program listings. It shall be the responsibility of the
City, or its designee, to provide such detailed program information to the third -party entity or entities
that produce such listings for Franchisee in accordance with each such entity's normal format and
scheduling requirements and at the City's or Designated Access Provider's cost.
2. The Franchisee shall identify the Channel locations of PEG Access Channels
in its print and website postings of Channel program listings for the City (i.e., annual notifications to
Subscribers and printed Channel cards).
G. PEG Access Channel Locations.
1. The PEG Access Channels shall be located on Franchisee's lowest cost level
of Cable Service, to the extent required by law.
2. Relocation of PEG Access Channels. Franchisee shall use reasonable efforts
to minimize relocation of PEG Access Channels. Franchisee shall notify the City and/or its Designated
Access Provider with a minimum of sixty (60) days written notice of any relocation of a PEG Access
Channel. The Franchisee shall provide all Subscribers with as much prior written notice of any
relocation of a PEG Access Channel as possible, but in no event less than thirty (30) days.
H. Complimentary Cable Drops and Cable Service to Public Buildings.
1. The Franchisee shall provide expanded basic Cable Service to a single drop,
with one set-top box (if necessary), at each elementary and secondary public school building and
public library building that currently receives service as of the Effective Date of this Franchise, on the
school's or library's request, without charge, for as long as Charter participates in the industry
supported Cable in the Classroom program.
2. Franchisee shall provide, without charge, one (1) activated outlet which
includes the lowest tier of Cable Service which includes PEG Access Channels to Pasco City Hall,
and Washington State University, at the addresses listed in Section 7.1.F., as well as one additional
PEG access location to be identified by the City, subject to Section 7.10.B., so that City may view and
monitor PEG Access Programming. The Cable Service provided pursuant to this Section shall not be
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used for commercial purposes and such outlets shall not be located in areas open to the public. The
City shall take reasonable precautions to prevent any inappropriate use of or loss or damage to the
Franchisee's Cable System. The City shall not install other outlets or make any other alterations to
the Cable System installed by Franchisee.
3. On or before the date when PEG Access programming is delivered in HD
format, the Franchisee shall provide HD service (including any necessary equipment [e.g., HD
converter, etc.], installation of that drop, and subscription to the HD basic service tier or its equivalent)
to the City to enable it to monitor the HD transmission and reception of PEG Access programming.
I. General. If Franchisee makes changes to its Cable System that necessitate
modifications to PEG Access Signal transmission facilities and equipment, Franchisee shall provide
thirty (30) days advance notice of such changes to the City, and shall take reasonable measures to
ensure that PEG Signal transmission facilities and equipment may be used and operated as intended
and without interruption, including, among other things, transmission of live and taped
communications to Subscribers.
7.12 No City Control. During the term of this Franchise, the City may not prohibit the Franchisee
from providing any program or class of programs, or otherwise censor communications over the Cable
System, except that nothing in this section shall be read to authorize the Franchisee to engage in
communications which are prohibited by law.
7.13 Emergency Alert System.
A. The Franchisee shall install and maintain an Emergency Alert System ("EAS").
Franchisee shall comply with the EAS requirements of the FCC and federal law, in order that required
emergency messages may be distributed over the system.
B. To the extent the City is approved or authorized to operate the EAS, the City shall
permit only appropriately trained and authorized persons to operate the EAS equipment, and shall
take reasonable precautions to prevent any use of the Franchisee's Cable System in any manner that
results in inappropriate use thereof, or any loss or damage to the Cable System. Except to the extent
expressly prohibited by law, the City shall hold the Franchisee, its employees, officers and assigns
harmless from any claims or costs arising out of the EAS or the emergency use of its facilities by the
City.
SECTION 8. CONSTRUCTION STANDARDS
8.1. Existing Poles to be Used. To the extent possible, Franchisee shall use and have the right
to use existing poles, conduits, and other facilities whenever possible. Additional poles may not be
installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders,
without obtaining all legally required permits of the City. This Franchise does not confer the right to
place or maintain facilities in any particular location, or in any particular manner in the rights of way or
any other property occupied pursuant to this Franchise.
8.2. Without limiting the provisions of Sections 2 and 3 herein:
A. Franchisee agrees that its occupation of the rights of way and such property is
subject to the lawful supervision and control of the City.
B. In the event of emergency, the City may move, relocate or remove Franchisee's
facilities without prior notice to Franchisee, provided that the City provide notice to Franchisee of such
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action as soon as practicable. Except as specifically stated, any action that the Franchisee may
reasonably be required to take shall be at Franchisee's expense.
C. Undergrounding.
1. Whenever all existing utilities are located underground in an area of the
Franchise Area, Franchisee must locate its cable communications system underground in the same
area.
2. Whenever the owner of a pole on which Franchisee is attached locates or
relocates underground within an area of the Franchise Area, Franchisee shall concurrently relocate its
facilities underground in the same area. In the event that any telephone or electric utilities are
reimbursed by the City for the placement of cable underground or the movement of cable, the
Franchisee shall be reimbursed upon the same terms and conditions as any telephone, electric or
other utilities.
3. The City may, for good cause shown, exempt a particular system or facility or
group of facilities from the obligation to locate or relocate facilities underground, where relocation is
impractical, where ordinary engineering practices make undergrounding impractical, or where the City
and the Subscriber's interest can be protected in another manner. Nothing in this section prevents the
City from ordering communications facilities to be located or relocated underground under generally
applicable provisions of the City Code or its general police powers.
D. The construction, installation, operation, and maintenance of the Cable System and
all parts thereof shall be performed in an orderly and workmanlike manner. All such work shall be
performed in accordance with the following safety, construction, and technical specifications, codes
and standards, as they may now exist or be amended or adopted hereafter, to the extent applicable:
1. Occupational Safety and Health Administration (OSHA) Safety and
Health Standards;
2. National Electrical Code;
3. National Electrical Safety Code (NESC);
4. Obstruction Marking and Lighting, AC 70/7460, i.e., Federal Aviation
Administration;
5. Construction, Marking and Lighting of Antenna Structures, FCC Rules 47
C.F.R. Part 17;
6. all federal, State and municipal construction requirements, as it pertains to the
City's general police powers, including FCC Rules and Regulations and
environmental regulations;
7. all building and zoning codes, and all land use restrictions and local safety
codes;
8. the Enabling Ordinance, subject to Section 1.7; and
9. State or local standards for Vehicular Traffic Control.
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In the event of a conflict among codes and standards, the most stringent code or
standard shall apply (except insofar as those standards, if followed, would result in a Cable System
which could not meet requirements of federal, State, or local law; and except for such minor
modifications as are typical in the industry). The City may adopt generally applicable and reasonable
additional standards as required to ensure that work continues to be performed in an orderly and
workmanlike manner, or to reflect changes in standards which may occur during the Franchise term.
E. The Franchisee or its designee shall have the authority to trim trees on public
property at its own expense as may be necessary to protect its wires and facilities, subject to
reasonable time, place and manner restrictions. If substantial alteration or removal of a tree or trees
is required to safeguard Franchisee's infrastructure, Franchisee shall obtain permission from City
prior to any action, and in the event of destruction or removal, compensate City for the lost value of
the impacted tree(s).
F. Movement of Facilities for Government.
1. The Franchisee shall, upon receipt of reasonable advance written notice, to be
not less than ten (10) business days, protect, support, temporarily disconnect, relocate, or remove any
property of Franchisee when lawfully required by the City pursuant to its general police powers,
including by reason of traffic conditions; public safety; public rights-of-way construction and repair
(including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or
repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government
owned system or utility, public work, public facility, or improvement; or for any other purpose where
the work involved would be aided by the removal or relocation of the Cable System.
2. Except in the case of emergency, the City shall provide written notice
describing where the public work is to be performed at least one week prior to the deadline by which
Franchisee must protect, support, temporarily disconnect, relocate or remove its facilities. Franchisee
shall be responsible for any costs associated with these obligations to the same extent all other users
of the City rights-of-way are responsible for the costs related to the relocation of their facilities.
Provided that, in an emergency, or where the Cable System creates or is contributing to an imminent
danger to health, safety, or property, the City may protect, support, temporarily disconnect, remove, or
relocate any or all parts of the Cable System without further notice, but only to the extent necessary to
eliminate the imminent danger, and charge the Cable System operator for costs incurred.
G. Movement for Others.
1. To accommodate the construction, operation, or repair of the facilities of
another person authorized to use the public rights-of-way or public property, Franchisee shall, by a
time specified by such person, protect, support, temporarily disconnect, temporarily relocate or
remove its facilities, provided that the expense of such is paid by any such person benefitting from the
relocation. Franchisee must be given written notice describing where the construction, operation or
repair is to be performed at least fifteen (15) days prior to the time by which its work must be
completed in the event of a temporary relocation, and no less than ninety (90) days for a permanent
relocation. Upon request of all involved parties, the City may resolve disputes as to responsibility for
costs associated with removal or relocation of facilities among entities authorized to install facilities in
the Streets or on public property if such entities are unable to do so themselves.
2. Franchisee shall, on the request of any person holding a valid permit issued by
a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving
of buildings or other objects. Franchisee shall be given not less than seven (7) days advance notice
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to arrange for such temporary wire changes. The expense of such temporary removal, relaying,
relocation, or raising or lowering of wires shall be paid by the person requesting the same.
H. If funds are available to any person using the Streets for the purpose of defraying
the cost of any of the foregoing, the City shall reimburse the Franchisee in the same manner in which
other persons affected by the requirement are reimbursed. If the funds are controlled by another
governmental entity, the City shall make application for such funds on behalf of the Franchisee.
SECTION 9. RATE REGULATION
9.1 For rates subject to rate regulation by the City under federal law, a written schedule of fees
for all such regulated services shall be available upon request. The Franchisee agrees to provide
each new Subscriber with prices and options for programming services and conditions of subscription
to programming and other services.
9.2 The City may regulate Franchisee's rates and charges to the extent authorized by federal
law. The Franchisee shall obtain prior approval before implementing or changing any regulated rate or
charge, except to the extent that federal or State law preempts the City's authority to require prior
approval. Where the regulation of a rate is governed or limited by federal or State law, nothing herein
authorizes City to regulate the rate without complying with that law.
9.3 The Franchisee will notify Subscribers of any proposed increase at least thirty (30) days
before said increase is to become effective. The Franchisee shall notify the City thirty (30) days prior
to the effective date of said increase. The notice will list the FCC community identifier for the Cable
System and the name, address, and phone number of a contact person or department at the City so
that information regarding procedures for public participation is readily available to Subscribers.
9.4 The City reserves the right to prescribe reasonable rates and order refunds, to the extent
permitted by applicable federal law, if it is determined that a rate proposed or charged is
unreasonable.
SECTION 10. FRANCHISE FEES
10.1 The Franchisee shall pay to the City an amount equal to five percent (5%) of the Gross
Revenues derived from the operation of its Cable System to provide Cable Services in the City (the
"Franchise Fee").
10.2 If Cable Services subject to the Franchise Fee required under this Section 10 are provided
to Subscribers in conjunction with noncable services, Franchisee shall not allocate revenue for such
bundled services between Cable Services and noncable services in any manner whose purpose is
unlawfully to evade or substantially reduce Franchisee's Franchise Fee obligations to the City.
10.3 Franchise Fee payments due the City under this provision shall be calculated on an annual
basis consistent with federal law. The Franchisee agrees to pay Franchise Fees to the City at the end
of each calendar quarter, no later than forty-five (45) days after the end of the calendar quarter. Each
payment shall be accompanied by or closely followed by a statement of Gross Revenue for the
quarter in connection with the operation of the Franchisee's Cable System in the City and a report
showing the basis for computation of fees. The reports shall list each source of revenue from the
operation of the Franchisee's Cable System. The new payment terms and conditions of this
Franchise shall take effect sixty (60) days after the Effective Date of the Franchise. The Franchisee
shall continue to make Franchise Fee payments under the terms of the former Franchise during the
interim period.
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10.4 No acceptance of any payment shall be construed as an accord that the amount paid is in
fact the correct amount, nor shall acceptance of payment be construed as a release of any claim the
City may have for further or additional sums payable under the Franchise by the Franchisee.
10.5 The Franchisee shall submit to the City a late fee on Franchise Fee payments which are
submitted after the due dates as described in Section 10.3, except that the Franchisee shall be
granted a five day "grace" period. Any Franchise Fee payment submitted after the five-day grace
period shall be subject to a late fee. In the event that a Franchise Fee payment is not received by the
City on or before the due date set forth in Section 10.3, or the fee owed is not fully paid, Franchisee
will be charged interest from the due date at an interest rate equal to two percent (2%) above the rate
for three-month Federal Treasury Bills at the most recent United States Treasury Department sale of
such Treasury Bills occurring prior to the due date of the Franchise Fee payment.
10.6 The Franchise Fee shall be paid in addition to fees, charges, or assessments required by
the City under its general police powers, unless such fee, charge, or assessment falls within the
definition of a Franchise Fee under the Cable Act.
10.7 Audits to verify Franchise Fee payments may be conducted by the City, no more than once
every three (3) years. Franchisee will provide the records reasonably required by the City to conduct
the audit to the City, at a location agreed upon by the City and Franchisee.
10.8 When the rights to operate pursuant to this Franchise terminates for any reason (other
than through the issuance of a renewal or superseding Franchise), the Franchisee shall file with the
City upon City's request and within ninety (90) calendar days of the request, a financial statement,
certified by a certified public accountant or the Franchisee's chief financial officer, showing the Gross
Revenues received by the Franchisee since the end of the previous fiscal year. Adjustments will be
made at that time for Franchise Fees due to the date that the Franchisee's operations under the
terminated Franchise ceased.
SECTION 11. PROTECTION OF CITY AND ENFORCEMENT — PERFORMANCE OR OTHER
SIMILAR BOND
11.1 In the event the Franchisee rebuilds the system during the term of this Franchise, the
Franchisee shall establish in the City's favor a performance or other similar bond in an amount not
more than five percent (5%) of the estimated cost of rebuilding each portion of the Cable System at
the particular time that portion of the Cable System is being rebuilt. The performance or other similar
bond shall be issued by a corporate surety authorized to transact a surety business in Washington,
and shall be canceled when the rebuild is complete. Franchisee shall provide thirty (30) days' notice
to City of surety cancellation after construction of that portion of the Cable System is complete. The
performance or other similar bond shall not be canceled until the City authorizes the release of the
bond subject to City verification that the rebuild has been completed, or within thirty (30) days of
Franchisee's notice that construction is complete, whichever is later.
11.2 In the event the Franchisee fails to complete the Cable System rebuild in a safe, timely,
and competent manner in accord with the provisions of this Franchise, applicable law, and permits, or
otherwise fails to comply with its obligations under this Franchise, there shall be recoverable, jointly
and severally from the principal and surety of the bond, any damages or loss suffered by the City as a
result, including the full amount of any compensation, indemnification, or cost of removal or
abandonment of any property of the Franchisee, or the cost of completing or repairing the Cable
System rebuild, or other work, plus a reasonable allowance for attorneys' fees, up to the full amount of
the bond.
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11.3 The performance or other similar bond shall contain the following endorsement or a similar
endorsement acceptable to the City:
"This bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by
the City, by certified mail, return receipt requested, of a written notice from the issuer of the
bond of intent to cancel or not to renew."
11.4 The performance or other similar bond required by this Section is in addition to, and not in
lieu of, any bonds required consistent with the City's normal practices for similar construction projects.
11.5 Security Fund. Franchisee shall establish and maintain a cash security fund or provide the
City an irrevocable letter of credit in the amount of $50,000 to secure the payment of fees owed, to
secure performance promised in the Franchise, and to pay any taxes, fees, penalties or liens owed to
the City. The letter of credit shall be in a form and with an institution acceptable to the City, which
acceptance shall not be unreasonably withheld. The City may not draw upon the cash security fund or
letter of credit without first exhausting all of the procedures specified in Section 13.1-13.3. The cash
security fund or letter of credit must be obtained prior to the Effective Date of the Franchise.
11.6 Insurance.
A. Insurance Required. Franchisee shall obtain and maintain, for the entire period
Franchisee has facilities in the public rights-of-way insurance insuring the Franchisee and the City,
and its elected officers, agents and employees as additional insureds, in amounts at least as provided
below.
Commercial general liability insurance with limits not less than:
a. One million dollars ($1,000,000) per occurrence limit.
b. Two million dollars ($2,000,000) General Aggregate.
2. Automobile liability for owned, nonowned and hired vehicles with a limit of
$1,000,000 per occurrence.
3. Worker's compensation within statutory limits and employer's liability insurance
with limits of not less than $1,000,000.
4. Products-Completed/Operations Aggregate of not less than $1,000,000.
5. Umbrella liability of $5,000,000 per occurrence limit.
B. Upon policy expiration or change of insurance carrier, a new Certificate of Insurance
will be provided within thirty (30) days after policy renewal or replacement. If Franchisee's insurance
carrier provides Franchisee notice of cancellation of a policy providing the insurance coverages
specified in this Section 11.6, and Franchisee is not able to renew or replace the policy or otherwise
provide the coverage specified in Section 11.6 prior to the effective date of the policy cancellation,
then Franchisee shall provide the City with written notice of the policy cancellation within 10 business
days following the effective date of such cancellation. Franchisee may provide notice of
cancellation by any commercially reasonable means, including mail, electronic mail, or facsimile
transmission to the contact name and email address provided by the City. It is the responsibility of the
City to provide Franchisee with up-to-date contact names and email addresses.
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SECTION 12. PROTECTION OF CITY AND ENFORCEMENT — APPROVAL OF SURETIES:
RELATION TO OTHER REMEDIES
12.1 The insurance, bonds, and security fund or letter of credit required by this Franchise shall
be issued, respectively, by an admitted insurer in Washington, acceptable to the City, and by a
financial institution acceptable to the City.
12.2 Recovery by the City of any amounts under this Franchise shall not in any respect limit the
Franchisee's duty to indemnify the City as provided in Section 3.9 for any unrecoverable amounts due
the City; nor shall recovery of any amounts in any respect prevent the City from imposing penalties
under Washington law, or exercising any other right or remedy it may have under the Franchise or at
law or equity.
SECTION 13. ENFORCEMENT
13.1 Franchise Violation—Notice and Procedures. If the City believes that Franchisee has not
complied with the terms of the Franchise, the City shall first informally discuss the matter with
Franchisee. Before revoking the Franchise or pursuing any other remedy or enforcement action, the
City shall follow the procedures set forth below:
A. The City shall notify Franchisee in writing of any alleged violation ("Violation Notice")
of the Franchise. The Violation Notice shall:
1. Identify the nature of the alleged noncompliance or violation;
2. Direct Franchisee to cure the alleged noncompliance or violation or show cause
why the alleged noncompliance or violation cannot or should not be cured; and
3. State the time for Franchisee's response, which shall be at minimum thirty (30)
days from the date of issuance of the Violation Notice, except for violations that present a danger to
public health, safety or welfare, in which case the time for response may be shortened.
13.2 Franchisee's Right to Cure or Respond. Within the time period designated for response,
Franchisee shall respond in writing to the City indicating that:
A. Franchisee contests the Violation Notice and describing facts relevant to its claim; or
B. Franchisee has completely cured the alleged noncompliance or violation, in which
case Franchisee shall provide documentation demonstrating that the alleged noncompliance or
violation has been completely cured; or
C. Franchisee has begun to correct the alleged noncompliance or violation; however,
the alleged noncompliance or violation cannot be corrected immediately despite Franchisee's
continued due diligence, in which case Franchisee shall describe in detail the steps already taken and
Franchisee's proposed plan and time schedule for completely curing the alleged noncompliance or
violation.
13.3 Public Hearing. If Franchisee contests the Violation Notice or the City believes that the
Franchisee has failed to completely cure the alleged noncompliance or violation, to submit a
reasonable plan to cure the alleged noncompliance or violation, or to work diligently to cure the
alleged noncompliance or violation, the City shall schedule a hearing before the City Council
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("Violation Hearing"). The City shall provide Franchisee written notice of the Violation Hearing at least
thirty (30) days prior to the hearing ("Hearing Notice").
A. The Hearing Notice shall indicate:
The time and place of the Violation Hearing;
2. The nature of the alleged noncompliance or violation; and
3. Franchisee's right to present oral and written testimony at an open and public
meeting.
B. At the Violation Hearing, the City Council shall hear and consider evidence from
Franchisee, City staff and members of the public regarding the alleged noncompliance or violation.
Franchisee shall be given an opportunity to present any and all evidence relating to the alleged
noncompliance or violation.
C. If, based upon the evidence presented at the Violation Hearing, the City Council finds
that Franchisee has violated the Franchise, the City Council may issue written findings and an order
invoking the appropriate remedy under this Franchise.
13.4 Enforcement. Subject to applicable federal and State law, in the event the City, after the
Violation Hearing set forth in subsection 13.3 above, determines that the Franchisee is in default of
any provision of the Franchise, the City may take any or all of the following actions:
A. Seek specific performance of any provision, which reasonably lends itself to such
remedy, as an alternative to damages.
B. Commence an action at law for monetary damages or seek other equitable relief.
C. Draw on the security fund specified in Section 11.5 without prejudice to either
parties' rights with respect to such disputed amounts, provided the City provides the Franchisee thirty
(30) days' advance notice specifying the amount and purpose of such withdrawal.
D. In the case of a substantial default of a material provision of the Franchise, seek to
revoke the Franchise itself in accordance with subsection 13.5 below.
13.5 Revocation. The City Council may revoke this Franchise or reduce the term of this
Franchise if it finds, after complying with procedures set forth in Section 13.1-13.4 above, that
Franchisee has substantially failed to comply or violated a material provision of this Franchise; has
defrauded or attempted to defraud the City or Subscribers; has attempted to evade material
requirements of this Franchise; or has abandoned its Franchise (the Franchisee shall be deemed to
have abandoned its Franchise if it willfully refuses to operate the Cable System as required by its
Franchise, when there is no event beyond the Franchisee's control that prevents the operation of the
Cable System, and where operation would not endanger the health or safety of the public or property).
Franchisee may continue to operate the Cable System until all legal appeals procedures have been
exhausted.
13.6 Upon revocation of the Franchise, or upon any other termination of the Franchise by
passage of time or otherwise, the City shall have the right to require the Franchisee to remove, at the
Franchisee's expense, its Cable System from Streets, public property, and any private property
occupied pursuant to the revoked, canceled, or terminated Franchise. The City shall notify the
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Franchisee in writing that the Cable System should be removed, and identify any period during which
the Franchisee will be required to continue to operate the Cable System as provided in Section 15. In
removing its Cable System, the Franchisee shall refill and compact, at its expense, any excavation
that shall be made and shall leave all Streets, public property, and private property in as good a
condition as that prevailing prior to the Franchisee's removal of the Cable System. The provisions of
Section 13.5 of this Franchise Agreement shall remain in full force and effect until the Cable System is
removed.
13.7 Upon revocation or termination of the Franchise, Franchisee may, if the City declines to
acquire ownership of the Cable System, sell or transfer the ownership of the Cable System, subject to
Section 16 herein.
13.8 Notwithstanding the foregoing, neither the Franchisee nor the City waive any of their
respective rights under federal law or regulation. Nothing herein shall be construed to waive or
otherwise affect Franchisee's right to seek relief in a court of competition jurisdiction from any decision
made or action taken by the City under this Franchise.
SECTION 14. REMEDIES — CUMULATIVE
14.1 All remedies provided under this Franchise Agreement shall be cumulative, unless
otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall it
relieve the Franchisee of its obligations to comply with the Franchise. Remedies may be used singly
or in combination; in addition, the City may exercise any rights it has under law or at equity.
SECTION 15. REMEDIES — CONTINUITY OF SERVICE
15.1 It is the right of all Subscribers in the Franchise Area to receive Cable Service from
Franchisee as long as their financial and other obligations to Franchisee are satisfied, and subject to
Franchisee's rights under the Franchise.
15.2 In the event of the termination or transfer of the Franchise, Franchisee shall make
reasonable efforts to ensure that all Subscribers receive continuous, uninterrupted service in
accordance with this Section 15. At the City's request, Franchisee shall cooperate with the City to
operate its Cable System for a temporary period (the "Transition Period") following termination or
transfer of the Franchise as necessary to maintain continuity of service to all Subscribers, and shall
cooperate in the development of plans required to ensure an orderly transition from one operator to
another. The Transition Period will be no longer than the reasonable period required to select another
franchisee and build a replacement Cable System. During such Transition Period, the Cable System
shall be operated consistent with the terms and conditions of this Franchise Agreement and
applicable law.
15.3 In the event Franchisee fails to operate the Cable System for ninety-six (96) hours during
any seven (7) day period without prior approval of the City, or if the System is abandoned, as defined
in Section 13.5, the City may, at its option, operate the Cable System or designate an operator until
such time as Franchisee restores service under conditions acceptable to the City or until the
Franchise is revoked and a permanent operator is selected. If the City is required to fulfill this
obligation for Franchisee, Franchisee shall reimburse the City for all costs or damages resulting from
Franchisee's failure to perform that are in excess of the revenues from the Cable System received by
the City. Additionally, Franchisee will cooperate with the City to allow City employees and/or City
agents free access to Franchisee's facilities and premises for purposes of continuing Cable System
operation.
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Page 153 of 226
SECTION 16. FRANCHISE TRANSFER
16.1. The Franchise granted hereunder shall not be assigned, other than to an entity controlling,
controlled by, or under common control with Franchisee, without the prior consent of the City, and
such consent shall not be unreasonably withheld or delayed. No such consent shall be required,
however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights,
title, or interest of Franchisee in the Franchise or Cable System to secure indebtedness.
16.2. In accordance with 47 U.S.C. § 537, the City shall have one hundred and twenty (120)
days from the date of submission of a completed FCC Form 394, together with all exhibits, and any
additional information required by this Franchise, to act upon an application.
16.3. If the City questions the accuracy of the information provided under Section 16.2., the City
must notify Franchisee within thirty (30) days of the filing of such information, or such information shall
be deemed accepted, unless Franchisee has failed to provide any additional information reasonably
requested by the City within ten (10) days of such request.
16.4. If the City fails to act upon such transfer request within one hundred and twenty (120)
days, such request shall be deemed granted unless the City and Franchisee otherwise agree to an
extension of time.
16.5. The City may request that the transferee provide guarantees and warranties from any
entity that manages, owns, or controls it, to ensure compliance with this Franchise, but the
transferee's refusal to provide such guarantees or warranties shall not be a basis for denial of the
transfer.
SECTION 17. BOOKS AND RECORDS — INSPECTION
17.1 Upon receipt of advance written notice, during normal business hours, the City may inspect
and copy the books, records, maps, plans, and other documents, including financial documents, in the
control or possession of Franchisee, Affiliates, any person that constitutes an operator of Franchisee's
Cable System that are legally permissible for release and that are necessary: (1) to enforce the City's
rights or assess compliance with the Franchise and applicable federal and State law; (2) in the
exercise of any power the City may have under this Franchise or applicable federal or State law; or (3)
as may be necessary in connection with any proceeding the City may or must conduct under
applicable law with respect to Franchisee's Cable System. Franchisee shall not be required to
maintain any books and records for Franchise compliance purposes longer than three (3) years.
Franchisee is responsible for collecting the information requested. The material shall be produced at
the Office of the City Manager or his/her designee unless the City agrees to inspection and copying at
another location. Material that the City requires Franchisee to produce under this section shall be
produced upon reasonable notice, no later than thirty (30) days after the request for production.
Requests for extensions of time to respond shall not be unreasonably denied.
17.2 Access to Franchisee's records shall not be denied to the City on the basis that said
records contain "proprietary" information. Franchisee and the City shall work in good faith to agree on
alternative means of sharing such proprietary information, including but not limited to making it
available for inspection but not copying, to preserve its confidentiality. The Franchisee shall not be
required to provide Subscriber information in violation of Section 631 of the Cable Act. To the degree
permitted by State law, City will treat as confidential any books, records or maps that constitute
proprietary or confidential information to the extent Franchisee makes the City aware of such
confidentiality. If the City believes it must release any such confidential books or records in the
course of enforcing this Franchise, or for any other reason, it shall advise the Franchisee in advance
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so that the Franchisee may take appropriate steps to protect its interests. Until otherwise ordered by
a court or agency of competent jurisdiction, the City agrees that, to the extent permitted by State and
federal law, it shall deny access to any of the Franchisee's books and records marked confidential, as
set forth above, to any person.
SECTION 18. PERFORMANCE MONITORING
18.1 Exercise of Authority. The City may exercise appropriate regulatory authority under the
provisions of this Franchise and applicable federal and State law, as amended from time to time.
SECTION 19. MISCELLANEOUS
19.1 Time of Essence; Maintenance of Records of Essence. In determining whether the
Franchisee has substantially complied with the Franchise, the City and the Franchisee agree that time
is of essence.
19.2 Effect of Preemption; Federal and State Law. The Franchisee and the City must comply
with all applicable provisions of federal and State law. If the City's ability to enforce any Franchise
provision is finally and conclusively preempted by federal or State law, then the provision shall be
deemed preempted but only to the extent and for the period the preemption is required by law. If, as
a result of a subsequent change in law or the interpretation of that law, the provision of this Franchise
would again be enforceable, it shall be enforceable, and the Franchisee will comply with all obligations
thereunder after receipt of notice from the City.
19.3 Force Majeure. The Franchisee shall not be deemed in default or non-compliance with
provisions of its Franchise where performance was rendered impossible by war, riots, civil
disturbance, floods, other natural catastrophes, or similar events beyond the Franchisee's control, and
the Franchise shall not be revoked or the Franchisee penalized for such non-compliance, provided the
Franchisee takes prompt and diligent steps to bring itself back into compliance and to comply as soon
as possible under the circumstances with its Franchise without unduly endangering the health, safety,
and integrity of the Franchisee's employees or property, or the health, safety, and integrity of the
public, Streets, public property, or private property. This provision includes work delays caused by
partial or entire failure of utilities to service or monitor their utility poles to which Franchisee's Cable
System is attached, as well as unavailability of materials and/or qualified labor to perform necessary
work.
19.4 Severability. If any provision of this Franchise Agreement is held by a court or by any
federal or State agency of competent jurisdiction to be invalid as conflicting with any federal or State
law, rule, or regulation now or hereafter in effect, the validity of the remaining sections hereof shall not
be affected.
19.5 Settlement and Release. As of the Effective Date of this Franchise Agreement, the prior
franchise is superseded and is of no further force and effect, and the City hereby waives and forever
releases Franchisee from any claims the City had, has or may have against Franchisee under the
prior franchise.
19.6 Administration of Franchise. Any changes, modifications or amendments to this Franchise
must be made in writing, signed by the City and the Franchisee.
19.7 Written Notice. Notices shall be given as follows:
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To the City:
Attn: City Manager
City of Pasco
525 N. Td Avenue
Pasco, WA 99301
With copies to:
To Franchisee:
Attn: Director, Government Relations
Charter Communications
222 NE Park Plaza Drive, #231
Vancouver, WA 98684
With a copy to:
Attn: Vice President, Government Affairs
Charter Communications
12405 Powerscourt Drive
St. Louis, MO 63131
Franchisee may indicate a different delivery address via written notice to the City.
Notice shall be deemed given three (3) business days after posting with pre -paid postage,
first class mail, or immediately upon hand -delivery to the person identified above, at the address
specified above.
19.8 Competitive Equity. Franchisee acknowledges and agrees that the City reserves the right to
grant one or more additional franchises to construct, operate, and maintain a Cable System within the
City. If following the Effective Date of this Franchise, the City grants a franchise or authorization to
another provider to provide Cable Services or Video Services (without regard to the technology used
to deliver such services) using facilities located wholly or partly in the public rights-of-way of the City,
and the Franchisee believes the City has done so on material terms (as defined in Section 19.8.A.2.
below) that are more favorable to the competing provider than the terms of this Franchise, then the
Franchisee shall have the right and may take any of the following actions:
A. Seek Modification of Agreed Material Terms.
1. Franchisee may seek modification of the Agreed Material Terms by submitting
a written request to the City specifying its requested modifications to this Franchise. Within thirty (30)
days after the Franchisee submits a written request to the City, the Franchisee and the City shall meet
to discuss the franchise modifications that the Franchisee has requested. The City and the
Franchisee shall have thirty (30) days (or any longer agreed upon period) after the parties' meeting to
reach agreement on the requested modifications and enter into a modified Franchise containing such
mutually agreed terms and conditions.
2. For purposes of this provision, the City and Franchisee mutually agree that the
following terms are material: Section 7.10.A., Section 7.10.B.1., Section 7.11.B.1.a.-c., Section
7.11.B.2, Section 7.11.B.3, Section 7.11.B.4., Section 7.11.E., Section 7.11.G., Section 10, and
Section 11.5 ("Agreed Material Terms"). The City and Franchisee agree that this provision shall not
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require a word for word identical franchise or authorization for competitive equity so long as the
regulatory and financial burdens on competing providers are substantially equivalent.
3. If the parties fail to reach mutual agreement on a modified franchise, the
Franchisee's Franchise shall be deemed modified with respect to the Agreed Material Term(s) in
dispute as specified in Franchisee's written request and modified to match the competing provider's
franchise. Nothing in this provision prohibits the Franchisee or the City from bringing an action in a
court of competent jurisdiction for a determination as to whether the disputed Agreed Material Terms
are different and as to what if any Franchise amendments would be necessary to remedy the
disparity.
B. Choose to terminate this Franchise and take in its place for the remaining term of this
Franchise the same franchise of a competing provider of Cable or Video Services authorized by the
City.
C. Choose to have this Franchise with the City be deemed expired thirty (30) months
after written notice to the City, provided that the City agrees that Franchisee's written notice shall be
deemed timely to invoke the renewal procedures set forth in 47 U.S.C. § 546, and that Franchisee
shall retain all rights under 47 U.S.C. § 546 and applicable law.
Nothing in this Franchise is intended or shall be construed, to alter the rights or obligations of either
the City or the Franchisee under applicable law. Subject to applicable law, the City will not be
required to refund the value of benefits received prior to the granting of a franchise to a competing
provider of Cable or Video Services.
19.9 Entire Agreement. This Franchise sets forth the entire Agreement between the parties
respecting the subject matter hereof and supersedes all prior agreements, proposals, covenants,
representations, and warranties, express and implied, oral and written. This Franchise cannot be
changed orally but only by an instrument in writing executed by the duly authorized representatives of
the parties.
19.10 Washington Law Applies. Except as to matters which are governed by federal law, this
Franchise will be governed by and construed in accordance with the laws of the State of Washington.
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PASSED & APPROVED by the City of Pasco, Washington and approved by the City Council on this
day of 2016.
THE CITY OF PASCO, WASHINGTON
m
(Mayor, City of Pasco)
ATTEST:
(City Clerk)
APPROVED this day of 2016.
�I
32
(City Attorney)
Page 158 of 226
APPENDIX A
FCC Customer Service Requirements
47 C.F.R. § 76.309(c) Customer service obligations.
(c) Effective July 1, 1993, a cable operator shall be subject to the following customer
service standards:
(1) Cable system office hours and telephone availability—
(i) Franchisee will maintain a local, toll-free or collect call telephone access line
which will be available to its subscribers 24 hours a day, seven days a week.
(A) Trained company representatives will be available to respond to customer
telephone inquiries during normal business hours.
(B) After normal business hours, the access line may be answered by a service
or an automated response system, including an answering machine.
Inquiries received after normal business hours must be responded to by a
trained company representative on the next business day.
(ii) Under normal operating conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when
the connection is made. If the call needs to be transferred, transfer time shall
not exceed thirty (30) seconds. These standards shall be met no less than
ninety (90) percent of the time under normal operating conditions, measured on
a quarterly basis.
(iii) The operator will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an
historical record of complaints indicates a clear failure to comply.
(iv) Under normal operating conditions, the customer will receive a busy signal less
than three (3) percent of the time.
(v) Customer service center and bill payment locations will be open at least during
normal business hours and will be conveniently located.
(2) Installations, outages and service calls. Under normal operating conditions, each of
the following four standards will be met no less than ninety five (95) percent of the time
measured on a quarterly basis:
(i) Standard installations will be performed within seven (7) business days after an
order has been placed. "Standard" installations are those that are located up to
125 feet from the existing distribution system.
(ii) Excluding conditions beyond the control of the operator, the cable operator will
begin working on "service interruptions" promptly and in no event later than 24
hours after the interruption becomes known. The cable operator must begin
actions to correct other service problems the next business day after notification
of the service problem.
Page 159 of 226
(iii) The "appointment window" alternatives for installations, service calls, and other
installation activities will be either a specific time or, at maximum, a four-hour
time block during normal business hours. (The operator may schedule service
calls and other installation activities outside of normal business hours for the
express convenience of the customer.)
(iv) An operator may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
(v) If a cable operator representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the
customer will be contacted. The appointment will be rescheduled, as
necessary, at a time which is convenient for the customer.
(3) Communications between cable operators and cable subscribers—
(i) Refunds—Refund checks will be issued promptly, but no later than either—
(A) The customer's next billing cycle following resolution of the request or thirty
(30) days, whichever is earlier, or
(B) The return of the equipment supplied by the cable operator if service is
terminated.
(ii) Credits—Credits for service will be issued no later than the customer's next
billing cycle following the determination that a credit is warranted.
(4) Definitions—
(i) Normal business hours— The term "normal business hours" means those
hours during which most similar businesses in the community are open to serve
customers. In all cases, "normal business hours" must include some evening
hours at least one night per week and/or some weekend hours.
(ii) Normal operating conditions— The term "normal operating conditions"
means those service conditions which are within the control of the cable
operator. Those conditions which are not within the control of the cable operator
include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather
conditions. Those conditions which are ordinarily within the control of the cable
operator include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and
maintenance or upgrade of the cable system.
(iii) Service interruption— The term "service interruption" means the loss of
picture or sound on one or more cable channels.
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47 C.F.R. § 76.1602 Customer service—general information.
(a) A cable franchise authority may enforce the customer service standards set forth in
paragraph (b) of this section against cable operators. The franchise authority must
provide affected cable operators 90 days written notice of its intent to enforce
standards.
(b) Effective July 1, 1993, the cable operator shall provide written information on each of
the following areas at the time of installation of service, at least annually to all
subscribers, and at any time upon request:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the cable service;
(5) Channel positions of programming carried on the system, and
(6) Billling and complaint procedures, including the address and telephone
number of the local franchise authority's cable office.
(7) Effective May 1, 2011, any assessed fees for rental of navigation
devices and single and additional CableCARDs; and
(8) Effective May 1, 2011, if such provider includes equipment in the price
of a bundled offer of one or more services, the fees reasonably allocable
to:
i. The rental of single and additional CableCARDs; and
ii. The rental of operator -supplied navigation devices.
(c) Subscribers shall be advised of the procedures for resolution of complaints about the
quality of the television signal delivered by the cable system operator, including the
address of the responsible officer of the local franchising authority.
47 C.F.R. § 76.1603 Customer Service—rate and service changes.
(a) A cable franchise authority may enforce the customer service standards set forth in
paragraph (b) of this section against cable operators. The franchise authority must
provide affected cable operators 90 days written notice of its intent to enforce
standards.
(b) Customers will be notified of any changes in rates, programming services or channel
positions as soon as possible in writing. Notice must be given to subscribers a
minimum of thirty (30) days in advance of such changes if the change is within the
control of the cable operator. In addition, the cable operator shall notify subscribers 30
days in advance of any significant changes in the other information required by [47
C.F.R.] § 76.1602.
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Page 161 of 226
(c) In addition to the requirement of paragraph (b) of this section regarding advance
notification to customers of any changes in rates, programming services or channel
positions, cable systems shall give 30 days written notice to both subscribers and local
franchising authorities before implementing any rate or service change. Such notice
shall state the precise amount of any rate change and briefly explain in readily
understandable fashion the cause of the rate change (e.g., inflation, change in external
costs or the addition/deletion of channels). When the change involves the addition or
deletion of channels, each channel added or deleted must be separately identified. For
purposes of the carriage of digital broadcast signals, the operator need only identify for
subscribers, the television signal added and not whether that signal may be
multiplexed during certain dayparts.
(d) A cable operator shall provide written notice to a subscriber of any increase in the price
to be charged for the basic service tier or associated equipment at least 30 days before
any proposed increase is effective. The notice should include the name and address
of the local franchising authority.
(e) To the extent the operator is required to provide notice of service and rate changes to
subscribers, the operator may provide such notice using any reasonable written means
at its sole discretion.
(f) Notwithstanding any other provision of part 76 of this chapter, a cable operator shall
not be required to provide prior notice of any rate change that is the result of a
regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind
imposed by any Federal agency, State, or franchising authority on the transaction
between the operator and the subscriber.
47 C.F.R. § 76.1604 Charges for customer service changes.
If a cable operator establishes a higher charge for changes effected solely by coded entry on a
computer terminal or by other similarly simple methods, as provided in [47 C.F.R.] § 76.980(d),
the cable system must notify all subscribers in writing that they may be subject to such a
charge for changing service tiers more than the specified number of times in any 12 month
period.
47 C.F.R. § 76.1619 Information on subscriber bills.
(a) Effective July 1, 1993, bills must be clear, concise and understandable. Bills must be
fully itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits.
(b) In case of a billing dispute, the cable operator must respond to a written complaint from
a subscriber within 30 days.
(c) A cable franchise authority may enforce the customer service standards set forth in this
section against cable operators. The franchise authority must provide affected cable
operators 90 days written notice of its intent to enforce standards.
Il
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AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
FROM: Ahmad Qayoumi, Director
Public Works
June 14, 2016
Regular Meeting: 6/20/16
SUBJECT: Ordinance Requiring Sewer Lift Station for Genesis Business Park
Development
I. REFERENCE(S):
2016-2021 CIP Sheet for Capitol Avenue Lift Station
Ordinance
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to adopt Ordinance No. requiring the construction of a
sewer system lift station as a prerequisite for the further development of the Genesis
Business Park and, further, authorize publication by summary only.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
In spring of 2014, the City Council adopted the City's Comprehensive Sewer Plan. The
Plan identifies strategies and outlines the capital improvements to address current and
future needs. One of the projects identified in the Comprehensive Sewer Plan includes
the construction of a lift station on Capitol Avenue in order to provide sewer for
approximately 600 acres of industrial zoned properties. As such, the Capitol Avenue
Lift Station project was included in the 2016-2021 Capital Improvement Plan, which
was passed by Council on September 8, 2015 (Resolution No. 3654).
The City partnered with Miller Family Trust and have worked together to develop the
project. Miller Family Trust owns a large portion of the properties that will be served
by the proposed lift station within the area known as the "Genesis Business Park." Over
the last 12 months, Miller Family Trust, with the assistance of their Consultant, took
the lead on the design and advertisement of the project. The project has been bid and a
contractor who meets the City's contracting standards has been selected.
Page 163 of 226
Additionally, the City has received an Application for Developer Reimbursement
Agreement (Latecomers Agreement) by Mr. Paul Miller on behalf of Miller Family
Trust. RCW 35.91.020 permits a contract for such reimbursement of sewer facility
improvements for development property upon an owner's request only in a location
where a municipality's ordinances require the facilities to be improved or constructed
as a prerequisite to further property development. In accordance with the City's
Comprehensive Sewer Plan, and in satisfaction of this requirement of RCW 35.91.020,
this Ordinance specifically states such requirement.
The Public Works Department considers the above mentioned Application to be
complete to process in establishing the benefiting property for repayment in accordance
with RCW 35.91.020 and Pasco Municipal Code 14.12.030. The reimbursement is
based on acreage.
V. DISCUSSION:
Pursuant to the requirements established in RCW 35.91.020, we recommend that the
City adopt an Ordinance requiring the facilities at Genesis Business Park be improved
or constructed as a prerequisite to further property development.
This item was discussed at the June 13, 2016 Council Workshop.
Page 164 of 226
iv
CD
rn
cn
0
N
N
City of Pasco
i ' ' i i Capitol Lift Station
Project Description
The City of Pasco (City) has partnered with
the Miller Family Trust (developer) to
design and construct a new sanitary sewer
lift station near the intersection of Capitol
Highway and Hillsboro Avenue. The lift
station will initially serve the Genesis
Business Park which is owned by the
Developer and is situated east of Highway
395 and north of Hillsboro Street. The phase
1 lift statin will have the capacity to serve
the 130 -acre business park and an additional
53 acres within the larger service area. The
timing for the project is to have the phase 1
lift statin operational by April 2016. The
service area will ultimately encompass a 730 -
acre portion within the City's King City
Industrial Subarea. The lift station will be
expanded to encompass the remaining
service as demand requires it. The ultimate
Funding Source
Contribution
�$ Thousands)
Sewer Utility
320
rivate Conributions
320
Design
Construction
90
550
=
Totall
640
Total
640
I Ff-,FNn
LIFT STATION
LIFT STATION SERVICE AREA BOUNDARY (730 ACRES)
Project Phase
Funding
2014 12015
2016
1 2017
12018 12019 1 2020 12021
Design
Construction
90
550
=
Totall
640
124
ORDINANCE NO.
AN ORDINANCE of the City of Pasco, Washington,
Requiring the Construction of a Sewer System Lift Station as
a Prerequisite for the Further Development of the Genesis
Business Park
WHEREAS, the City Council of the City of Pasco, Washington, has recognized that
inclusion within its Capital Improvement Plan, construction of a sewer system lift station to
provide sewer services to properties located within the City is acceptable for development of
agricultural processors; and
WHEREAS, the City has received an application for an extension of sewer system
including a lift station to provide sewer services to that property known as the "Genesis Business
Park"; and
WHEREAS, RCW 35.91.020 permits a contract for the reimbursement of sewer facility
improvements for development property upon an owner's request only in a location where a
municipality's ordinances require the facilities to be improved or constructed as a prerequisite to
further property development; and
WHEREAS, the City staff has determined, and recommended to the City Council the
real property designated in Exhibit A and known as the "Genesis Business Park" as a
prerequisite for its further development, requires the construction of a sewer system lift station.
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO HEREBY
ORDAIN AS FOLLOWS:
Section 1. Construction of a sewer system lift station to service that property known
as the "Genesis Business Park" and as further designated in Exhibit A, be required, as a
prerequisite to any further property development within its intended service area; and further
finds that a Comprehensive Plan approval for construction of such facility is not required.
Section 2. Effective Date. This Ordinance shall take full force and effect five (5)
days after its approval, passage, and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided by law this day of 12016.
Matt Watkins, Mayor
Ordinance Requiring Sewer
Lift Station for Genesis Business
Park Development - 1
Page 166 of 226
ATTEST:
APPROVED AS TO FORM:
Debbie Clark, City Clerk Leland B. Kerr, City Attorney
Ordinance Requiring Sewer
Lift Station for Genesis Business
Park Development - 2
Page 167 of 226
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Exhibit A
Page 168 of 226
AGENDA REPORT
FOR: City Council June 13, 2016
TO: Dave Zabell, City Manager Regular Meeting: 6/20/16
FROM: Jeff Adams, Associate Planner
Community & Economic Development
SUBJECT: Client -Present Home Occupations (MF# CA 2015-007)
I. REFERENCE(S):
Proposed Ordinance
Planning Commission Packet
Planning Commission Minutes dated April 21, 2016
Planning Commission Minutes dated May 19, 2016
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to adopt Ordinance No. , an Ordinance of the City of
Pasco, Washington amending PMC Chapter 25.66 entitled "Home Occupations", and,
further, authorize publication by summary only.
III. FISCAL IMPACT:
None.
IV. HISTORY AND FACTS BRIEF:
The Planning Commission held a workshop on February 18, 2016 to consider two
client -present home occupation options, namely to allow them by Special Permit, with
conditions focused on mitigating the impacts of on-site client visits, or to allow them
outright as a Permitted Use, with impact -mitigating provisions built into the code. The
Commission preferred outright permitting over conditional use permits.
On April 21, 2016 the Planning Commission held a hearing to consider amending PMC
Chapter 25.66 to allow for client -present home occupations, with mitigating
conditions/restrictions. At its follow-up meeting on May 19, 2016 the Planning
Commission narrowed the impact -mitigating provisions to limiting client access to the
location to four hours per day, between the hours of 8:00 am and 8:00 pm; limiting
client automobile traffic to two on the property at any given time; and prohibit dog
Page 169 of 226
boarding/kenneling on-site. The Planning Commission reasoned it would be
appropriate to recommend an ordinance amending PMC Chapter 25.66 (see attached
Ordinance).
This item was discussed by Council at the June 13, 2016 workshop meeting.
V. DISCUSSION:
The Planning Commission recommended to allow client -present home occupations,
provided the City Code be augmented as follows:
1. Limit client access to the location to four hours between the hours of 8:00 am
and 8:00 pm
2. Limit client automobile traffic to two vehicles on the property at any given
time;
3. Prohibit dog boarding/kenneling on-site.
Page 170 of 226
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PASCO,
WASHINGTON AMENDING PMC CHAPTER 25.66
ENTITLED "HOME OCCUPATIONS"
WHEREAS, the city has a responsibility to monitor and provide appropriate regulatory
guidelines for business activities within the community; and
WHEREAS, the city established a home occupation chapter to provide a means whereby
the conduct of business may be permitted as a use accessory to an established residence within a
residential district; and
WHEREAS, the purpose of the Home Occupation chapter was to create an
administrative framework to authorize such uses that do not pose a disruption to or conflict with
the existing and planned residential environment; and
WHEREAS, on April 21, 2016 the Planning Commission held a public hearing to
consider amending the Home Occupation Environmental Standards to allow for client -present
home occupations, and
WHEREAS, the City Council, after reviewing the minutes of the Public hearing and a
draft ordinance, has reviewed the following code amendments and finds them to be appropriate
and necessary to further the overall welfare of the community; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. That Section 25.66.020 of the Pasco Municipal Code entitled "PROHIBITED
HOME OCCUPATIONS" shall be and hereby is amended and shall read as follows:
25.66.020 PROHIBITED HOME OCCUPATIONS. Due to the increased possibility for
generating hazardous or nuisance conditions, the following uses and those similar in nature shall
not be permitted as home occupations: Dog boarding/kenneling; vehicle repair and/or
maintenance; rebuilding motors; painting vehicles; welding; sheet metal shops; upholstering;
firewood cutting and any group H Occupancy as defined in the International Building and Fire
Code adopted by the City.
Section 2. That Section 25.66.040 of the Pasco Municipal Code entitled
"ENVIRONMENTAL STANDARDS" shall be and hereby is amended and shall read as follows:
25.66.040 ENVIRONMENTAL STANDARDS. All home occupations shall conform to
the following standards:
1) Be clearly subordinate to the principal use of the property for residential purposes;
2) Not involve modification of the property or exterior of its structures that indicates other than
residential uses of the premises;
Ordinance Amending PMC 25.66 - 1
Page 171 of 226
3) Is performed entirely within a permanent structure upon the premises;
4) No signs, display or other advertisement upon the property;
5) No media or other off -premises advertising shall give the address or location of the home
occupation;
6) No outside storage of materials, supplies, products or by-products, or equipment, except a
single occupational vehicle not exceeding 14,000 pounds Gross Vehicle Weight (GVW);
7) Be conducted solely by persons residing within the dwelling unit upon the premises, subject to
the definition of family;
8) Except for articles produced thereon, no merchandise, products, goods or wares may be
displayed or offered for sale upon the premises;
9) No eeeupation feqiiir-ing the eustemef or- elient to be pfesent upon the pfemises while the
profession, tfade, skill . per-fefmed shall be allowed, exeept for- pr-iva4e tutoring e
9) Client access to the residential location shall be limited to the following restrictions:
a) Client visits shall be limited to four hours per client visit per day
b) Client visits shall be limited to the hours between 8:00 am and 8:00 pm
c) Client automobile traffic shall be limited to two client vehicles on-site at any giygLn
time.
10) No more than 8 customer vehicles may visit the dwelling in a given day;
11) Noise generated by the home occupation, detectable at any property line, shall not be in
excess of the following standards:
a) 8:00 a.m. to 8:00 p.m.: 55 dba.
b) 8:00 p.m. to 8:00 am.: 45 dba.
12) No material or substance which is explosive, highly flammable, corrosive, radioactive or
toxic shall be stored, created, utilized or discarded in any way without prior knowledge of and
written approval by the city; provided the means or methods necessary for safety purposes do not
conflict with other standards established herein;
13) The home occupation shall not generate light or glare, vibration, fumes or odors, or permit
other conditions to occur or be present, which annoys, injures, or endangers the comfort, health,
repose, decency or otherwise comfortable enjoyment of life and property of neighboring or
surrounding residents, in accordance with the intent of this chapter and nuisances as defined in
Chapter 9.60 of the Municipal Code.
Ordinance Amending PMC 25.66 - 2
Page 172 of 226
14) The home occupation shall not occupy more than twenty (20) percent of the gross floor area
of the residence. All of an attached or detached garage may be used for a home occupation
provided the area of the garage to be utilized does not exceed six hundred (600) square feet.
Section 3. This Ordinance shall take full force and effect five (5) days after its approval,
passage and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided by law this day of 12016.
Matt Watkins, Mayor
ATTEST:
APPROVED AS TO FORM:
Debra L. Clark, City Clerk Leland B. Kerr, City Attorney
Ordinance Amending PMC 25.66 - 3
Page 173 of 226
MEMORANDUM
DATE: May 12, 2016
TO: Planning Commission
FROM: Jeffrey B. Adams, Associate Planner
SUBJECT: Home Occupations /Client Present (MF# CA 2015-007
The City of Pasco prohibits any "occupation requiring the customer or client to
be present upon the premises while the profession, trade, skill or service is
performed . . . ." This has been interpreted to include hair dressers/beauty
salons. Recently the code has been amended to allow for "private tutoring or
instruction for 4 or fewer student per 24 -hour period;"
At its February 18, 2016 workshop the Planning Commission was presented
two options, as follows:
1) Allow client -present home occupations by Special Permit, with conditions
focused on mitigating the impacts of on-site client visits
2) Allow client -present home occupations outright as a Permitted Use.
Impact -mitigating provisions would need to be built into the code.
The Planning Commission discussed these options, with preference for outright
permitting.
Also presented were possible conditions, which the Planning Commission
reviewed, with the understanding that the Code could be amended to
accommodate client -present home occupations, as follows:
a) Client services by appointment only—no walk-in services.
b) Customer/client presence at the residence shall be limited to between the
hours of 7 a.m. and 9 p.m.
c) There shall be no more than one (1) customer/client on the premises at any
given time. For purposes of this Section, one (1) customer/ client visit shall
be considered to include up to four (4) persons arriving in a single vehicle.
d) Unless otherwise required by law, the entrance to the home occupation
must be from within the residence;
Page 1 of 2
Page 174 of 226
e) In addition to parking required for the residents, there shall be no more
than one (1) vehicle parked on or in the vicinity of the property as a result of
the home occupation at any one time.
The Planning Commission considered the above options and made
recommendations to allow client -present home occupations providing the City
Code be augmented as follows:
1) Limit client access to the location to two hours between the hours of 8:00
am and 8:00 pm
2) Limit client automobile traffic to two on the property at any given time;
3) Prohibit dog boarding/ kenneling on-site.
DISCUSSION:
A code amendment ordinance has been crafted to address the Planning
Commission's recommendations (See attached Code Amendment Ordinance).
MOTION: I move the Planning Commission adopt the findings of fact as
contained in the May 19, 2016 staff memo on client -present home occupations.
MOTION: I move the Planning Commission recommend the City Council
adopt the proposed code amendments for client -present home occupations as
attached to the May 19, 2016 staff memo to the Planning Commission.
Page 2 of 2
Page 175 of 226
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PASCO,
WASHINGTON AMENDING PMC CHAPTER 25.66
ENTITLED "HOME OCCUPATIONS"
WHEREAS, the city has a responsibility to monitor and provide appropriate regulatory
guidelines for business activities within the community; and
WHEREAS, the city established a home occupation chapter to provide a means whereby
the conduct of business may be permitted as a use accessory to an established residence within a
residential district; and
WHEREAS, the purpose of the Home Occupation chapter was to create an
administrative framework to authorize such uses that do not pose a disruption to or conflict with
the existing and planned residential environment; and
WHEREAS, on April 21, 2016 the Planning Commission held a public hearing to
consider amending the Home Occupation Environmental Standards to allow for client -present
home occupations, and
WHEREAS, the City Council, after reviewing the minutes of the Public hearing and a
draft ordinance, has reviewed the following code amendments and finds them to be appropriate
and necessary to further the overall welfare of the community; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. That Section 25.66.020 of the Pasco Municipal Code entitled "PROHIBITED
HOME OCCUPATIONS" shall be and hereby is amended and shall read as follows:
25.66.020 PROHIBITED HOME OCCUPATIONS. Due to the increased possibility for
generating hazardous or nuisance conditions, the following uses and those similar in nature shall
not be permitted as home occupations: Dog boarding/kenneling; vehicle repair and/or
maintenance; rebuilding motors; painting vehicles; welding; sheet metal shops; upholstering;
firewood cutting and any group H Occupancy as defined in the International Building and Fire
Code adopted by the City.
Section 2. That Section 25.66.040 of the Pasco Municipal Code entitled
"ENVIRONMENTAL STANDARDS" shall be and hereby is amended and shall read as follows:
25.66.040 ENVIRONMENTAL STANDARDS. All home occupations shall conform to
the following standards:
1) Be clearly subordinate to the principal use of the property for residential purposes;
2) Not involve modification of the property or exterior of its structures that indicates other than
residential uses of the premises;
Ordinance Amending PMC 25.66 - 1
Page 176 of 226
3) Is performed entirely within a permanent structure upon the premises;
4) No signs, display or other advertisement upon the property;
5) No media or other off -premises advertising shall give the address or location of the home
occupation;
6) No outside storage of materials, supplies, products or by-products, or equipment, except a
single occupational vehicle not exceeding 14,000 pounds Gross Vehicle Weight (GVW);
7) Be conducted solely by persons residing within the dwelling unit upon the premises, subject to
the definition of family;
8) Except for articles produced thereon, no merchandise, products, goods or wares may be
displayed or offered for sale upon the premises;
9) No eeeupation feqiiir-ing the eustemef or- elient to be pfesent upon the pfemises while the
profession, tfade, skill . per-fefmed shall be allowed, exeept for- pr-iva4e tutoring e
9) Client access to the residential location shall be limited to the following restrictions:
a) Client visits shall be limited to two hours per client visit per day
b) Client visits shall be limited to the hours between 8:00 am and 8:00 pm
c) Client automobile traffic shall be limited to two client vehicles on-site at any giygLn
time.
10) No more than 8 customer vehicles may visit the dwelling in a given day;
11) Noise generated by the home occupation, detectable at any property line, shall not be in
excess of the following standards:
a) 8:00 am. to 8:00 p.m.: 55 dba.
b) 8:00 p.m. to 8:00 am.: 45 dba.
12) No material or substance which is explosive, highly flammable, corrosive, radioactive or
toxic shall be stored, created, utilized or discarded in any way without prior knowledge of and
written approval by the city; provided the means or methods necessary for safety purposes do not
conflict with other standards established herein;
13) The home occupation shall not generate light or glare, vibration, fumes or odors, or permit
other conditions to occur or be present, which annoys, injures, or endangers the comfort, health,
repose, decency or otherwise comfortable enjoyment of life and property of neighboring or
surrounding residents, in accordance with the intent of this chapter and nuisances as defined in
Chapter 9.60 of the Municipal Code.
Ordinance Amending PMC 25.66 - 2
Page 177 of 226
14) The home occupation shall not occupy more than twenty (20) percent of the gross floor area
of the residence. All of an attached or detached garage may be used for a home occupation
provided the area of the garage to be utilized does not exceed six hundred (600) square feet.
Section 3. This Ordinance shall take full force and effect five (5) days after its approval,
passage and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided by law this day of 12016.
Matt Watkins, Mayor
ATTEST:
APPROVED AS TO FORM:
Debra L. Clark, City Clerk Leland B. Kerr, City Attorney
Ordinance Amending PMC 25.66 - 3
Page 178 of 226
PLANNING COMMISSION MINUTES
4/21/16
C. Code Amendment Home Occupations/ Client Present (MF# CA 2015-
0071
Chairwoman Khan read the master file number and asked for comments from staff.
Rick White, Community & Economic Development Director, discussed the code
amendment application for home occupations with clients present. This item has been
discussed by the Planning Commission at previous meetings as a workshop item. The
code amendment would allow, under certain circumstances, the ability for people who
have a home use or small business in their home to be able to have a few clients come to
the home which is currently prohibited in Pasco. Based on the last workshop, the
ordinance has been prepared and does a couple of things related such as added dog
boarding and kenneling to the list of prohibited home occupations based on comments
and it allows clients access to home occupations provided standards are met. There are
conditions in the staff report in which the home occupations will have to meet. The first
one limits client access to two hours between 8:00 AM -8:00 PM. It limits automobile traffic
to two vehicles on the property at any given time and prohibits the boarding of kenneling
of animals. There are other conditions also listed in the ordinance that will continue to be
in effect and provide a necessary amount of conditioning that would be appropriate to
make a small adjustment to the ordinance that governs home occupations. The staff
recommendation is that the Commission consider the ordinance revising home
occupations and that comes back to the Planning Commission in May for deliberations
and a recommendation to City Council.
Commissioner Bowers asked if there was a limit on the number of clients per day.
Mr. White responded that there is a limit that is listed in the ordinance.
Chairwoman Khan stated that no more than 8 customer vehicles may visit the dwelling
unit in any given day. She asked if that would be a concern with occupancy of clients at
one time.
Mr. White answered no it would not be a concern.
Commissioner Bowers asked if there is not policy for in home occupations currently.
Mr. White replied that at this time there are regulations for in home occupations but along
with their staff report is a proposed ordinance with the revisions crossed out and changes
added. For example, currently the ordinance states that aside from private tutoring,
clients cannot be at the premise; but it has been replaced with wording that clients are
limited to two hours per day, between 8:00 AM - 8:00 PM and that no more than two
vehicles on site at any given time and that there can be no more than eight vehicles in any
given day.
Commissioner Bowers asked what would happen if this code amendment is approved but
a neighbor feels that the eight vehicles per day is untenable for them, if they would have to
write to the City to have the code amendment revised after going through the Planning
Commission and City Council again.
Mr. White answered yes, if policy is based on one complaint.
-1-
Page 179 of 226
Dave McDonald, City Planner, added that typically the things that staff will see are one
chair beauty salons in homes and there would likely just be one person going to the home
and there wouldn't be all that many people coming to the home so it wouldn't be a big
issue.
Commissioner Bowers responded that for certain cultures they may need more than two
hours to get their hair done. She asked where the two-hour limit came from.
Mr. White replied that there is a line of what is fair for people who have home occupations
and what is fair for the neighborhood that doesn't expect a certain amount of commercial
traffic in a neighborhood and this is trying to strike that balance. The same thing could be
said for some people who do taxes as some clients might take longer than two hours.
Commissioner Polk added that it would take a neighbor who is very persistent in watching
their neighbors in home occupation and they would have to document each person that is
there for longer than two hours and then call code enforcement to complain. She asked if
the home occupation could get a special permit for the exception.
Mr. White responded no.
Commissioner Bowers responded that she was concerned because she didn't want it to
appear racist because there was a limit on the hours for how long a person can stay to get
their hair done, as some textures of hair and procedures can take a long time.
Chairwoman Khan stated that she understands both sides but stated that the two hour
rule could be in place for code enforcement purposes in case there is an issue and the
home occupation is abusing the rule.
Commissioner Polk asked if there was an example to cite to make the two-hour rule
necessary.
Commissioner Greenaway says it's already going on and nobody is licensed.
Commissioner Polk stated that she specifically wanted to know if there is a reason to limit
the number of hours per client visit since we aren't allowing multiple clients or vehicles at
a time.
Commissioner Greenaway stated that a home-based business doesn't typically deal with
multiple vehicles.
Commissioner Polk asked if the time limit was removed from the ordinance if that would
hinder code enforcement in any way.
Mr. White responded that the Planning Commission can make whatever recommendation
they would like but the practical effect though is that it could hinder effective enforcement
if it ever came down to that of home occupations that have clients coming to the home.
Chairwoman Khan asked if the conditions are similar to other local jurisdictions.
Mr. White answered yes. At one of the workshop meetings staff provided a matrix that
listed the regulations of Kennewick and Richland which are both very similar, but Pasco,
for whatever reason, did not allow clients to visit home occupations except for tutoring.
The reason this code amendment came about is because it was suggested by a citizen who
-2-
Page 180 of 226
had just moved to Pasco from one of the other local jurisdictions.
Chairwoman Khan asked if any of the local jurisdictions has helped with the proposed
ordinance.
Mr. White responded no but from his experience when he worked at Kennewick and with
his experience with Pasco's Code Enforcement, home occupations don't typically generate
complaints unless they are visibly contrary to the regulations, such as, car repair or
landscaping companies.
With no further comments the public hearing closed.
Commissioner Greenaway moved, seconded by Commissioner Polk, to close the public
hearing and schedule deliberations, the adoption of findings of fact and development of a
recommendation for City Council for the May 19, 2016 meeting. The motion passed 3 to 2
with Commissioner Bowers and Commissioner Mendez dissenting.
Respectfully submitted,
David McDonald, City Planner
-3-
Page 181 of 226
PLANNING COMMISSION MINUTES
5/19/16
A. Code Amendment Home Occupations/ Client Present (MF# CA 2015-
0071
Chairman Cruz read the master file number and asked for comments from staff.
Rick White, Community & Economic Development Director, discussed the code
amendment application for client -present home occupations. He stated that this item has
been discussed during workshops and staff had included input from the Planning
Commissioners. An email was passed out to the Planning Commissioner's from
Commissioner Bowers, who was unable to attend the meeting, regarding her input on the
code amendment which requested more time be given per client rather than just 2 hours
per client.
Chairman Cruz stated that he was comfortable with changing the code to allow each client
4 hours rather than 2 hours, since the number of clients per day and the timeframe
clients could visit the home were still limited.
Commissioner Khan asked if there needed to be a time limit for individual clients.
Commissioner Polk stated that at previous meetings it was discussed that from a code
enforcement standpoint, it would be easier to enforce if there was some timeframe given.
Chairman Cruz responded that 4 hours would strike a balance between enforcement and
allowing clients the time they need.
Commissioner Polk agreed with Chairman Cruz but wanted to be cautious about enforcing
the code.
Commissioner Khan asked if daycares fall under in-home occupations.
Chairman Cruz stated yes, but they are different and require a special use permit.
Commissioner Mendez agreed with the 4 hour time limit on clients.
Commissioner Bykonen also agreed with the 4 hour time limit on clients.
Commissioner Khan moved, seconded by Commissioner Polk, the Planning Commission
adopt the findings of fact as amended on client -present home occupations. The motion
passed unanimously.
Commissioner Khan moved, seconded by Commissioner Polk, the Planning Commission
recommend the City Council adopt the proposed code amendments for client -present
home occupations as amended. The motion passed unanimously.
Respectfully submitted,
David McDonald, City Planner
-1-
Page 182 of 226
AGENDA REPORT
FOR: City Council
TO: Dave Zabell, City Manager
Rick White, Director
Community & Economic Development
FROM: Jeff Adams, Associate Planner
Community & Economic Development
SUBJECT: Powerline Road Rename (MF# ORD 2015-002)
I. REFERENCE(S):
Overview Map
Petitions
Proposed Ordinance
June 13, 2016
Regular Meeting: 6/20/16
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to adopt Ordinance No. , an Ordinance renaming Power
Line Road to Burns Road, and, further, authorize publication by summary only.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
The stretch of road beginning on the western edge of Pasco along the Columbia River
and continuing east towards the Tri -Cities Airport has several names, as follows: Road
116/ Burns Road (formerly Dent Road), Edelman Road, and Power Line Road.
Dent Road originally twisted south and then west towards the Columbia River.
In May of 2012 over 50 local residents living along Dent Road petitioned the County to
change the name of the east -west segment of Dent Road to Burns Road.
Franklin County subsequently changed the name of the east -west section of Dent Road
to Burns Road.
Page 183 of 226
The 1967 Plat of Coles Estates established "Edelman Road" for the 8800-9200 block
section of the road.
Apparently the dirt path running along the Bonneville Power infrastructure was
informally known as Power Line Road. This name was mentioned on some plats
(Columbia Place Phase 3) adopted as "Power Line" (two words) on Three Rivers
Crossing, Division 2, Phases 1-3 and as "Powerline" on West Pasco Terrace Phases 2-
4.
At least one adjoining plat, Heritage Village Phase 5, refers to Edelman Road as a
proposed name, and includes the notation "AKA Powerline Road."
This item was discussed by Council at the June 13, 2016 workshop meeting.
V. DISCUSSION:
Staff is recommending the Council rename the variously named segments of Power
Line Road mentioned above to Burns Road.
Page 184 of 226
Overview Item: Powerline Road Rename
Applicant: City of Pasco N
Map File #: ORD 2015-002
Road Segments
CITY LIMITS
Burns RdlRd 116
CITY LIMITS
e
v Legend
c�
00 Proposed Segment
cn
° Built Segment
Edelman Road Powerline Rd (NPS`)
CITY LIMITS
I IN
CITY LIMITS
CITY LIMITS
- F?
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iA
14,
We live in the area of the new "Powerline Rd". The Burns farm located at the end
of Dent/Powerline has been family owned since 1945. Willetta Walkley Burns has
lived on the farm since 1939. The!Wfor the FWwas donated by the family.
We would like to see the road
j I=— 442-I IV\,
named: Burns Rd., Burns Blvd., or Burns Drive.
C
0113�
11VtG,U� V1G� �Y1, `�
4kwKO-s 186 of 226
We live in the area of the new "Powerline Rd". The Burns farm located at the end
of Dent/Powerline has been family owned since 193 . Willetta Walkley Burns has
lived on the farm since 1939. The la for the was donated by Y the family.
We would like to see the road named: Burns Rd., Burns Blvd., or Burns Drive.
ala
Page 187 of 226
We live in the area of the new "Powerline Rd". The Burns farm located at the end
of Dent/Powerline has been family owned since 1935. Willetta Walkley Burns has
lived on the farm since 1939. The road for the land was donated by the family.
We would like to see the road named: Burns Rd., Burns Blvd., or Burns Drive.
LRAMffi
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Pasco, W �,
L y nrM 0 13 C'j X
Page 188 of 226
ORDINANCE NO.
AN ORDINANCE RENAMING POWER LINE ROAD TO BURNS ROAD.
WHEREAS, the identification of streets plays an important function in maintaining the
safety and welfare of the public; and,
WHEREAS, the street names are the principal means for the public to reference and
locate properties in the city;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON, DOES ORDAIN AS FOLLOWS:
Section 1. That the former Power Line Road as depicted on Exhibit #1 be renamed
Burns Road;
Section 2. This ordinance shall be in full force and effect five days after publication, as
required by law.
PASSED by the City Council of the City of Pasco, at its regular meeting of
, 2016.
Matt Watkins
Mayor
ATTEST:
Debra L. Clark
City Clerk
APPROVED AS TO FORM:
Leland B. Kerr
City Attorney
1
Page 189 of 226
AGENDA REPORT
FOR: City Council June 14, 2016
TO: Dave Zabell, City Manager Regular Meeting: 6/20/16
Rick White, Director
Community & Economic Development
FROM: Dave McDonald, City Planner
Community & Economic Development
SUBJECT: Annexation: Barker Annexation (MF# ANX 2016-002)
I. REFERENCE(S):
Proposed Resolution
Overview Map
Vicinity Map
Notice of Intent to Commence Annexation
IL ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. , accepting a Notice of Intent
to commence annexation proceedings for the Barker Annexation Area and providing a
determination on the boundary to be annexed and whether simultaneous zoning and the
assumption of bonded indebtedness will be required.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
The owners of approximately 119 acres of property located west of Broadmoor
Boulevard and north of Power Line Road have filed a Notice of Intent to Commence
Annexation.
The Notice of Intent has been reviewed by staff, and has been determined to contain
sufficient signatures to initiate the annexation process. Notices of Intent are required to
contain the signatures of property owners representing at least 10 percent of the
assessed value of an area proposed for annexation. In this case, the Notice of Intent
contains the signatures of owners representing approximately 95 percent of the
Page 191 of 226
assessed value within the proposed annexation area.
V. DISCUSSION:
As a part of the review of the Notice of Intent, the petition method of annexation
requires the Council to determine:
1. Whether the City will accept or require modification of the proposed
annexation area;
2. Whether the City will require simultaneous adoption of zoning; and,
3. Whether the City will require the property to assume all or a portion of existing
City indebtedness.
The proposed resolution has been prepared following past practices of accepting the
proposed annexation area without requiring simultaneous zoning or the assumption of
bonded indebtedness. Zoning will be established following property owner notification
and a public hearing held (by the Planning Commission) separately from a Council
hearing on the future annexation.
The proposed annexation area is within the Pasco Urban Growth Boundary and as such
it has been the City's responsibility to plan for future development on the property. As
a result, the annexation area has been included in the Comprehensive Plan and the
Comprehensive Water and Sewer plan service areas. Development of infrastructure on
the property will be the responsibility of the developers, while the associated need for
public services, such as police and fire, will be the responsibility of the City. These
additional service needs could include the location of a fourth fire station and or
expanded public works facilities at the corner of Road 108 and Crescent Drive.
Page 192 of 226
Vicinit
Item: Burns Rd. & Broadmoor Blvd. Area Annexation
y "
Applicant: Barker Family W E
Map
File #: ANX 2016-002 S
Urban Growth Boundary:.. \\\\\\\\
SITE
T
City Limits
NOTICE OF INTENTION TO COMMLNCE ANNEXATION PROCEDURES
TO: The City Council of the City of Pasco
525 North Third Avenue
Pasco, Washington 99301
Council Members:
The undersigned, who are the owners of not less than ten percent in
value, according to the assessed valuation for general taxation of the
property for which annexation is sought, hereby advise the City Council
of the City of Pasco that it is the desire of the undersigned owners of the
following area to commence annexation proceedings.
The property herein referred to is described on Exhibit "I ° attached
hereto and is depicted on Exhibit "2" further attached hereto,
It is requested that the City Council of the City of Pasco set a date not
later than sixty days after the filing of this request for a meeting with the
undersigned to detcrminc;
(1) Whether the City Council will accept the proposed annexation;
and,
(2) Whether the City Council will require the assumption of existing
City indebtedness by the area to be annexed; and,
(3) Whether the City Council will require simultaneous zoning.
This page is one of a group of pages containing identical text material
and is intended by the signers of this Notice of Intention to be presented
and considered as one Notice of Intention and may be filed with other
pages containing additional signatures which cumulatively may be
considered as a single Notice of Intention.
Page 195 of 226
I. Please print your name in addition to signing.
NAME ADDRESS LATE
AMEL�} T 3,`rcA lR c -i leznd, toy4
�935q
,�/ 6112-011
Page 196 of 226
Affidavit ofSign attere for
Annexation Petition
Under the penalty of perjury, I declare tender oath, that I am authorized to sign deeds and
encumbrances on behalf of the Barker Testamentary "frust and I am further authorized to sign
other documents including Annexation Petitions,
Signature
State of Washington }
): ss.
County of �IAXLN. )
Date
I certify that I know or have satisfactory evidence that PMIo -Snob L� 5 is the person
who appeared before me, and said person acknowledged that (he/she) signed this inStrurrrent, on oath
stated the t (lie/she) was authorised to execute the instrument and acknowledged it as
the {�p ; } ,,T of � ,,Tel y be the free and voluntary act
of such party for the uses and purposes rnentioned in the instrument. �Yus 4 -
Given under nay hand and off ficial seal its day of vZid f
NOTARY PUBLIC in and for ik state of WashiilgLun
Residing at��l��fy4 fTT__.._...._._
My Commission t.xpires:
FLS `�•'•�
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Page 197 of 226
Affidavit of Signature for
Annexation Notice of Intent and Petition
Under the penalty of perjury, I declare under oath, that I am authorized to sign deeds and
encumbrances on behalf of the Joyce Barker Estate and I am further authorized to sign other
documents including Annexation Petitions.
Date
State of Washington )
): ss.
County ofd! }
',/ 6/� I�
I certify that I know or have satisfactory evidence that �iu�i�Pf`�k`fceis the person
who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath
stated that (he/she) was authorized to exec�to the instrument and acknowledged it as
the_-ceel'ix�✓ of �/ � - . to be the free and voluntary act
of such party for the uses and purposes t ntioned in the instrument.
Given under my hand and official seal)is (D)�-4 day of
State of Washington
NOTARY PUBLIC
Kelly A. Baker-Yalowicki
My Commission Expires
February 1, 21719
7es
FARYPUBLIC; in,and for tip to of
iding at:
My Commission Expires:
101
Page 198 of 226
EXHIBIT "1"
Annexation Legal
Beginning at the northwest corner of the southeast quarter of Section 6,
Township 9 North, Range 29 East, WM; Thence southerly along the west
line of said quarter section to the intersection with the north right-of-way
line of Burns Road; Thence southerly along the southerly projection of
the west line of said quarter section to the intersection with the south
right-of-way line of Burns Road; Thence easterly along the south right-of-
way line of Burns Road to the intersection with the southerly projection
of the west line of the southeast quarter of the southeast quarter of
Section 6, Township 9 North, Range 29 East, WM; Thence northerly
along said projection to the intersection with the north right-of-way line
of Burns Road; Thence northerly along the west line of the southeast
quarter of the southeast quarter of Section 6, Township 9 North, Range
29 East, WM to the north line of the southeast quarter of the southeast
quarter of Section 6, Township 9 North, Range 29 East; Thence easterly
along said north line to the intersection with the west right-of-way line of
Road IOU; Thence northerly along the west right-of-way line of Road 106
to the intersection with the southerly most point of Farm Unit 77,
Irrigation Block 1; Thence north and west along the westerly line of
Farm Bloch Unit 77, Irrigation Block 1 to the intersection with the north
line of the southeast quarter of Section 6, Township 9 North, Range 29
East, WM; Thence westerly along said north line to the point of
beginning.
Page 199 of 226
I ff - 2
Borkr Ann/ton
RESOLUTION NO.
A RESOLUTION ACCEPTING A NOTICE OF INTENT TO
COMMENCE ANNEXATION PROCEEDINGS FOR THE BARKER
ANNEXATION, PROVIDING A DETERMINATION ON THE BOUNDARY
TO BE ANNEXED AND WHETHER SIMULTANEOUS ZONING AND THE
ASSUMPTION OF BONDED INDEBTEDNESS WILL BE REQUIRED.
WHEREAS, the owners of property in Section 6, Township 9 North, Range 29 East,
WM have filed a Notice of Intent to annex to the City of Pasco; and
WHEREAS, the City Council of the City of Pasco has reviewed the Notice of Intent and
has determined annexation of the territory would support the provision of municipal services
within the Pasco Urban Growth Area and is in the best interest of the Pasco community; NOW,
THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, DOES RESOLVE AS
FOLLOWS:
A) That the City will accept the proposed territory to be annexed as described in
Exhibit "1" and depicted in Exhibit "2" attached hereto.
B) That the territory to be annexed will not require simultaneous adoption of zoning
regulations. Zoning will be determined through a public hearing process with input from
affected property owners.
C) That the annexation area will not be required to assume any portion of existing
City bonded indebtedness.
PASSED by the City Council of the City of Pasco this 20th day of June, 2016.
Matt Watkins, Mayor
ATTEST:
APPROVED AS TO FORM:
Debra L. Clark, City Clerk Leland B. Kerr, City Attorney
Page 201 of 226
EXHIBIT "1"
Annexation Legal
Beginning at the northwest corner of the southeast quarter of Section 6,
Township 9 North, Range 29 East, WM; Thence southerly along the west
line of said quarter section to the intersection with the north right-of-way
line of Burns Road; Thence southerly along the southerly projection of
the west line of said quarter section to the intersection with the south
right-of-way line of Burns Road; Thence easterly along the south right-of-
way line of Burns Road to the intersection with the southerly projection
of the west line of the southeast quarter of the southeast quarter of
Section 6, Township 9 North, Range 29 East, WM; Thence northerly
along said projection to the intersection with the north right-of-way line
of Burns Road; Thence northerly along the west line of the southeast
quarter of the southeast quarter of Section 6, Township 9 North, Range
29 East, WM to the north line of the southeast quarter of the southeast
quarter of Section 6, Township 9 North, Range 29 East; Thence easterly
along said north line to the intersection with the west right-of-way line of
Road 100; Thence northerly along the west right-of-way line of Road 100
to the intersection with the southerly most point of Farm Unit 77,
Irrigation Block 1; Thence north and west along the westerly line of
Farm Block Unit 77, Irrigation Block 1 to the intersection with the north
line of the southeast quarter of Section 6, Township 9 North, Range 29
East, WM; Thence westerly along said north line to the point of
beginning.
Page 202 of 226
City Limits
Citv Limits
SANDIFUR PARKWAY
N
W
O
K
203
AGENDA REPORT
FOR: City Council June 15, 2016
TO: Dave Zabell, City Manager Regular Meeting: 6/20/16
FROM: Stan Strebel, Deputy City Manager
SUBJECT: Sale of Surplus Property for Columbia Basin College Student Housing
I. REFERENCE(S):
Proposed Purchase and Sale Agreement
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve the Purchase and Sale Agreement with CBC Student
Housing LLC for approximately 4.75 acres on Argent Road, east of 20th Avenue and,
further, to authorize the City Manager to execute the Agreement.
III. FISCAL IMPACT:
This Purchase and Sale Agreement (PSA) provides the option for the purchase of up to
(approximately) 4.75 acres (in three phases) through January 1, 2022 at the 2016 price
of $4.00 per square foot, or approximately $796,000.
IV. HISTORY AND FACTS BRIEF:
The City has held a 10 -acre parcel of property, located at the corner of 20th Avenue
and Argent Road, in anticipation of commercial development, for several years. The
property is part of the original Sun Willows Golf Course.
In April, Rich Cummins, President of Columbia Basin College (CBC) addressed the
Council on the growth of the college and the need for student housing. The college is
essentially land locked, with limited room for expansion. Many adjacent sites are
restricted for residential use by the FAA.
The proposed PSA provides for the sale of approximately one half of the City's 10 acre
parcel. The proposed student housing project will be constructed and operated by a
private entity; property and improvements will be taxable. If all three phases are
completed, the result will be approximately 378 units of student type housing in a
Page 204 of 226
location across the street from the CBC Campus.
The proposed PSA provides the option for the sale of the property in three phases, with
the initial purchase price of $4.00 square foot and with a CPI inflation factor on the
price beginning after July 1, 2018.
Attachments to the PSA provide for covenants on the property assuring continued use
for student housing; and providing for joint use of some infrastructure as well as the
required improvements anticipated for the project.
V. DISCUSSION:
There remain a number of specific design issues and details, including the overall
project layout, which could change with additional information. Therefore, staff
requests that Council grant the City Manager reasonable discretion to modify design
issues within the overall parameters provided.
Page 205 of 226
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (hereinafter "Agreement") is entered into on
this _ day of June, 2016, between the City of Pasco, a Washington Municipal Corporation
(hereinafter "City") and CBC Student Housing, LLC, (hereinafter "Purchaser") for establishing
the terms and conditions for the sale of real property (hereinafter "Property") legally described as
set forth below:
The east 4.8 acres (excluding that portion of the Sun Willows Golf Course pond and buffer,
approximately .239ac = net acreage of 4.751ac.) of that certain real property designated as
Parcel ID Number 113300255 as shown on Exhibit A, which is attached hereto and incorporated
by this reference.
RECITALS
WHEREAS, City is the owner of real property located in Franklin County, Washington, which
real property is described more particularly above; and
WHEREAS, City wishes to sell such real property and Purchaser wishes to purchase such
property under certain terms and conditions as set forth below; NOW, THEREFORE,
In consideration of the mutual covenants contained herein, the parties agree as follows:
1. Purchase and Sale. City agrees to sell, and Purchaser agrees to purchase:
(a) The property as generally described above and or particularly determined as
provided in Section 4 below.
(b) All development rights relating to the real property; (i) all rights to obtain utility
service in connection with the real property; (ii) assignable licenses and other
governmental permits and permissions relating to the real property and the
operation thereof.
(c) The land, improvements, and appurtenances which constitute real property are
hereafter collectively defined as the "Real Property." All of the Property included
by reference within the foregoing paragraphs 1(a) through 1(c), both real and
personal, is hereinafter collectively referred to as the "Property."
(d) Conditions of sale:
(1) The property shall be developed and used solely for the purpose of
providing student housing to serve Columbia Basin College as provided in
the covenants which shall run with the land as attached in Exhibit B,
which is attached hereto and incorporated by this reference.
(2) The property shall be developed in accordance with the development plan
as designated in Exhibit C, which is attached hereto and incorporated by
Purchase and Sale Agreement—CBC Student Housing LLC - Page 1
Page 206 of 226
this reference. The purchaser shall incorporate landscape design standards
that discourage access to the city -owned pond on the golf course.
(3) This Agreement is conditioned upon final approval of the City Council of
the City of Pasco prior to closing as required by PMC 2.46.
2. Purchase Price/Financin . The purchase price for the Property shall be $4.00 per square
foot. The City represents that the Property totals approximately 4.8 acres. The purchase
price will be based upon the square footage defined in such survey. The purchase price is
payable in cash to the City at closing subject to the Phased Options as provided in Section
5 below.
3. Method of Payment. Within ten (10) business days of the effective date of this
Agreement, Purchaser will deposit with Benton -Franklin Title Company (escrow agent),
an earnest money deposit in the sum of Twenty -Five Thousand and 00/100ths Dollars
($25,000.00), which shall be held in an interest bearing trust account. This deposit shall
be applied to the purchase price.
(a) Purchaser agrees that the earnest money deposit shall be paid to City if the sale
does not close after Purchaser has removed all contingencies in writing.
(b) Upon closing, Purchaser shall electronically transfer proceeds of Purchaser's
financing for the balance of the purchase price or issue a cashier's check in the
amount of the purchase price.
4. Survey.
(a) The City shall, at the City's sole expense, within ten (10) days following the
effective date of this Agreement, provide a current survey of the Property and
shall:
(1) Provide a metes and bounds legal description of the Property.
(2) Calculate the exact square footage of the Property upon which the
purchase price as provided in Section 2 above shall be calculated.
(3) Identify the common roadway location.
(4) Designate three approximately equal parcels within the Property for the
purpose of the Phased Options as provided in Section 5 below, but shall
include the legal descriptions for such sub -parcels and the exact square
footage of each such sub -parcel. Purchaser shall have ten (10) days from
the date of delivery of the survey to revoke, by written notice, this
Agreement at which time this Agreement shall be null and void and the
Purchaser shall be entitled to the return of their earnest money deposit. If
the Purchaser fails to object, or waive its notice to object, the survey shall
be the acknowledged basis upon which the purchase price shall be
calculated as provided in Section 2 above.
Purchase and Sale Agreement—CBC Student Housing LLC - Page 2
Page 207 of 226
(b) The City shall, at City's expense, within thirty (30) days following the Purchaser's
waiver, or expiration of its objection, secure a lot segregation for the Property,
and a sub -lot segregation which shall be effective upon closing.
5. Phased Option.
(a) Purchaser, by its initial below, may elect a phased purchase of the Property.
Upon such election, Purchaser shall purchase the southerly one-third, designated
as sub -parcel A. The legal description including the square footage shall be
utilized for the calculation of the purchase price at $4.00 per square foot, which
purchase shall be closed as provided in Section 11 and Section 12 below.
(b) Following closing on sub -parcel A, Purchaser shall have an option to purchase
sub -parcel B on or before January 1, 2020. The base purchase price for sub -
parcel B shall be calculated based upon the survey determination of square
footage at $4.00 per square foot. In the event Purchaser does not exercise the
option to purchase sub -parcel B on or before July 1, 2018, the purchase price shall
be increased by an amount equal to the increase in the Consumer Price Index
(CPI -U) between the date of closing as provided in Section 11 below, and the date
of closing purchase of sub -parcel B.
(c) Following closing on sub -parcel A, Purchaser shall have an option to purchase
sub -parcel B and sub -parcel C together during the first option period. As a
condition for exercising this first option, the Purchaser shall faithfully perform all
terms and conditions of this Agreement including those documents incorporated
by reference.
(d) Purchaser shall have the option to purchase sub -parcel C on or before January 1,
2022. The base purchase price for sub -parcel C shall be calculated based upon
the survey determination of square footage of $4.00 per square foot. In the event
Purchaser does not exercise the option to purchase sub -parcel C on or before July
1, 2018, the purchase price shall be increased by an by an amount equal to the
increase in the Consumer Price Index (CPI -U) between the date of closing of this
Agreement and the date of closing upon sub -parcel C. As a condition for
exercising this option, the Purchaser shall faithfully perform all terms and
conditions of this Agreement including those documents incorporated by
reference, and provided that Purchaser has previously purchased sub -parcels A
and B, or such sub -parcels are being purchased simultaneously with the purchase
of sub -parcel C.
City's Initials
Purchaser's Initials
By the initials above, the parties agree to a phased purchase option as described above.
6. Title. Title to the Property is to be so insurable at closing under terms of the title policy
required to be delivered by City under terms of paragraph 7 hereof. All title insurance
charges for the policy referenced in paragraph 7 below in the amount of the purchase
Purchase and Sale Agreement—CBC Student Housing LLC - Page 3
Page 208 of 226
price shall be equally divided between the parties, except for the cost of any special
endorsements requested by Purchaser and cancellation fees shall be paid by Purchaser.
7. Preliminary Commitment. Within fifteen (15) days from the last party's execution of this
agreement, City shall furnish Purchaser with a preliminary report/commitment from
Benton -Franklin Title for an ALTA owner's policy of title insurance with respect to the
Real Property, together with a copy of each document forming the basis for each
exception referenced therein. Purchaser shall advise City of any title objections within
five (5) days of its receipt of the report/commitment to remove all exceptions or
conditions in the title commitment. If within ten (10) days after its notice to City,
Purchaser have not received evidence satisfactory to it that such unsatisfactory items can
and will be removed at or prior to closing at City's sole cost and expense, then Purchaser
may elect to (a) terminate this Agreement and receive a full refund of the deposit, (b)
waive such defects, or (c) continue this Agreement in effect pending their removal.
Removal of unsatisfactory items or their waiver shall be a condition of closing. If
Purchaser does not make an election within thirty (30) days of its execution of this
Agreement, Purchaser shall be deemed to have waived the defects.
8. Due Diligence; Inspection Period.
(a) Within fifteen (15) days following the effective date of this Agreement, City shall
provide Purchaser with the title commitment described in paragraph 7 above,
together with all relevant documents relating to the Property, including but not
limited to copies of all easement, lot segregation and all other covenants and
restrictions with respect to all or portions of the Property; and all existing surveys
and other reports and studies relating to the Property or its use or development in
the possession of City.
(b) Purchaser shall have sixty (60) days from the effective date of this Agreement
(the "Inspection Period") within which to conduct an examination of the Property,
including examinations of title, engineering tests, soils tests, water percolation
tests, ground water tests, environmental examinations, market studies, appraisals,
and any other tests or inspections which Purchaser shall have deemed necessary
or desirable for the purpose of determining whether the Property is suitable for his
intended uses. On or before the expiration of the Inspection Period, the Purchaser
shall notify City in writing, with a copy to Escrow Agent, whether Purchaser
intends to purchase the Property or terminate this Agreement. If Purchaser elects
to purchase the Property, then the Inspection Period shall terminate and
Purchaser's obligation to purchase and City's obligation to sell the Property shall
remain, subject to the other terms and conditions of this Agreement. If Purchaser
elects not to purchase the Property, then this Agreement shall be void and of no
further force and effect, and the deposit shall be returned to Purchaser. In the
event Purchaser fails to notify City in writing of its election to purchase the
Property or terminate this Agreement prior to the expiration of the Inspection
Period, then Purchaser shall be deemed to have elected to terminate this
Agreement.
Purchase and Sale Agreement—CBC Student Housing LLC - Page 4
Page 209 of 226
(c) Purchaser agrees to repair any damage to the Property resulting from any
activities of Purchaser or his agents or consultants on the Property before closing.
Purchaser agrees to defend, indemnify and hold the City harmless from any and
all damages, expenses, claims, or liabilities (including but not limited to
attorney's fees and costs) arising out of any activities of Purchaser or his agents or
consultants on or about the Property before closing, except to the extent that the
same results from the City's negligence. Purchaser shall not be liable for any
inspection claim resulting from Purchaser's discovery of any pre-existing
condition (including, but not limited to, the existence of any hazardous materials)
in, on, under or about the Property or any exacerbation of a pre-existing condition
in, on, under or about the Property, except to the extent that the exacerbation
results from the negligent act or omission of Purchaser or his agents or
consultants.
(d) Buyer's obligation to purchase this Property is conditioned upon Purchaser
constructing and operating a housing project solely for the benefit of Columbia
Basin College. Buyer's obligation herein shall be included as a covenant that runs
with the land as a deed restriction on the property as provided in Exhibit B.
9. Pro -rations. Real Property taxes, assessments, water and other utilities, and all other
expenses for the month of closing, shall be prorated as of closing. All expenses, fees and
sums owing or incurred for the Property for periods prior to closing shall be paid by City,
when and as due.
10. Possession. Purchaser shall be entitled to sole possession of the Property at closing,
subject only to the rights, if any, of tenants in possession under the leases.
11. Closing. Closing, for at least sub parcel A, shall occur within ten (10) days of the
conclusion of Purchaser's inspection period as provided in Section 8 above, but in no
event later than September 1, 2016.
(a) At closing City will deposit in escrow a duly executed statutory warranty deed
covering the Property; a FIRPTA affidavit; and all other documents and monies
required of it to close this transaction in accordance with the terms hereof. All
such documents shall be in form satisfactory to Purchaser's counsel.
(b) At closing Purchaser will deposit in escrow the monies required of it to close the
transaction in accordance with the terms hereof.
12. Closing Costs. All excise, transfer, sales and other taxes, if any, incurred in connection
with the sale, the title insurance premium, recording fees on the deed and the escrow fee
shall be equally divided between the parties. The City shall bear all costs associated with
the lot segregation. Each party shall bear its own attorneys' fees, except as otherwise
expressly provided herein.
13. Forfeiture of Earnest Money Deposit - Liquidated Damages. As an inducement to
develop the Property in a manner that brings economic development to the City, the
parties agree to the following liquidated damages in the event that Purchaser fails,
Purchase and Sale Agreement—CBC Student Housing LLC - Page 5
Page 210 of 226
without legal excuse after the inspection period, to complete the purchase of the Property
or fulfill the terms and obligations set forth in paragraph 3. The earnest money/deposit
shall be forfeited to the City as the sole and exclusive remedy available to the City for
such failure to purchase. In the event City defaults hereunder, Purchaser may pursue all
remedies at law or equity, including the right to specific performance, an action for
damages, or termination and return of its earnest money.
City's Initials
Purchaser's Initials
14. Reversionary Clause and Option to Repurchase/Reclaim.
(a) This Property is being sold to Purchaser in anticipation of the development of
housing project for the benefit of Columbia Basin College.
(b) The Purchaser acknowledges that the purchase price and consideration given by
City are related to the City's goals of economic development and lost
opportunities for development would arise if Purchaser fails to begin construction
of the anticipated development.
(c) Unless the failure to commence construction is related to the items identified in
Section 18(f), below, if the Purchaser fails to submit an application to City for
approval of a site plan and building plans consistent with subsection (a) above,
within three (3) months of Closing, the City reserves the right to reclaim title to
this Property. If the Purchaser does not initiate construction within six (6) months
of Closing, City reserves the right to reclaim title to this Property. The City shall
reclaim this Property by refunding 90% of the original Purchase Price as
determined in Section 3 above. In the event Purchaser elects the phased options
provided in Section 5 above, this right of reversion shall apply to each of the sub -
parcels purchased independently. The City will not assume any liability for
expenses incurred by Purchaser in conducting this transaction. Purchaser agrees to
re -convey title to the City within sixty (60) days of receipt of notification of
City's decision to seek reconveyance of Property. This reversionary right is
exclusive to the City and shall be exercised at the sole discretion of the City.
(d) This reversionary right survives forty-eight (48) months after closing or until such
time as building commences, whichever is earlier. The City shall be under no
obligation to exercise this reversionary right. This reversionary clause shall
survive the delivery of the Deed, but shall automatically lapse upon expiration of
the time periods herein and City shall execute such further documents as
Purchaser shall request to release same.
15. Counterparts. This Agreement may be signed in counterparts which, taken together, shall
constitute the complete Agreement.
16. Actions During Term. During the term hereof, City shall not enter into any lease or other
agreement affecting the Property or its operation, or modify, extend or otherwise change
the terms of any lease or other agreement affecting the Property or its operation or
Purchase and Sale .agreement—CBC Student Housing LLC - Page 6
Page 211 of 226
otherwise permit any change in the status of title to the Property without Purchaser's
prior written consent.
17. Assam ent. Purchaser may not assign Purchaser's interest in this Agreement without
City's prior written consent, which shall not be unreasonably denied.
18. City's Warranties; Indemnit . City makes the following representations and warranties,
which shall be deemed remade as of the closing date:
(a) The Property and improvements are not in violation of any applicable covenant,
condition or restriction or any applicable statute, ordinance, regulation, order,
permit, rule or law, including, without limitation, any building, private restriction,
zoning or environmental restriction.
(b) Other than the obligations of record, there are no obligations in connection with
the Property, which will be binding upon Purchaser after closing other than
liability for the payment of real estate taxes and utility charges.
(c) There are no claims, actions, suits or governmental investigations or proceedings
existing or, to the best of City's knowledge, threatened against or involving City
or the Property (including, without limitation, any condemnation or eminent
domain proceeding or matter related to the formation of or assessment by a local
improvement district) and City has received no written notice thereof.
(d) All insurance policies now maintained on the Property will be kept in effect, up to
and including the closing. City has received no notice from any insurance
company or rating organization of any defects in the condition of the Property or
of the existence of conditions which would prevent the continuation of existing
coverage or would increase the present rate of premium.
(e) There are no leases affecting the Property.
(f) The Property is currently zoned C-1 (Commercial) which will accommodate the
intended use for student housing by special permit. The City specifically reserves
the right to condition approval of development on building layout, exterior
treatments (aesthetics and open space), parking lot design/capacity, building
height, and such other conditions as may be required to insure the compatibility of
the intended use with its surrounding existing uses.
(g) There are no commissions due to any real estate broker or agent that arise from
this Agreement.
(h) All such representations and warranties shall be reaffirmed by City as true and
correct as of the Closing Date and shall survive the Closing for a period of two (2)
years.
If, prior to closing, City becomes aware of any fact or circumstance which would change
a representation or warranty, then City will immediately give notice of such changed fact
Purchase and Sale Agreement—CBC Student Housing LLC - Page 7
Page 212 of 226
or circumstance to Purchaser, but such notice shall not relieve the City of its obligations
hereunder.
19. Environmental Indemnification.
(a) City will defend, indemnify, and hold Purchaser and his partners, agents and
employees and assignee (collectively, the "Indemnified Parties") harmless from
and against any and all claims, obligations, damages, causes of action, costs and
expenses, losses, fines, penalties, and liabilities, including, without limitation,
attorneys' fees and costs, imposed upon or incurred by or asserted against an
Indemnified Party arising out of or in connection with the occurrence of any of
the following: (i) prior to closing; (A) any Environmental Matter affecting or
relating to the Property arising out of City's use and ownership of the Property; or
(B) any violation of any Environmental Law by City with respect to the Property;
and (ii) subsequent to closing: (C) the manufacture, storage, sale, use, disposal,
release, or discharge of Hazardous Substance in, on or under the Property by City;
or (D) any violation of any Environmental Law by City with respect to the
Property. City shall also be responsible for all costs, expenses, fines, and penalties
arising out of or in connection with the investigation, removal, remediation, clean-
up, and restoration work resulting from the matters described in the preceding
sentence. City represents that to the best of its knowledge, after reasonable
inquiry, it is not aware of any violation of any Environmental Laws relating to the
Property, any Hazardous Materials located on the Property or any Environmental
Matter relating to the Property. City's obligations and representations under this
Section 22 shall survive closing.
(b) "Environmental Laws" shall mean any federal, state or local laws, ordinance,
permits or regulations, or any common law, regarding health, safety, radioactive
materials or the environment, including but not limited to, the following federal
statutes: Clean Air Act (42 U.S. C. §§ 7401 et sea.) ("CAA"), Clean Water Act
(33 U.S.C. §§ 1251 et sea.) ("CWA"), Resource Conservation and Recovery Act
(42 U.S.C. §§ 6091 et sect.) ("RCRA"), Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. §§ 9601 et sea.) ("CERCLA"),
Emergency Planning and Community Right -To -Know Act (41 U.S.C. §§ 11001 et
M.) ("EPCRA"), Safe Drinking Water Act (42 U.S.C. §§ 300f et sea.)
("SDWA"), Hazardous Material Transportation Act of 1975 (49 U.S.C. §§ 1801
et sea.) ("HMTA"), Toxic Substances Control Act (15 U.S.C. §§ 2601 et sea.)
("TSCA"), Endangered Species Act of 1973 {16 U.S.C. §§ 1531 et sea.) ("ESA"),
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §§ 136 et sera.)
("FIFRA"), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.)
("OSHA"), the Washington Model Toxics Control Act (RCW Chapter 70.150D)
("MTCA"), or the Hazardous Waste Management Act (RCW Chapter 70.105)
("HWMA"), each as amended, and any regulations promulgated thereunder,
guidance and directives issued with respect thereto, or policies adopted by the
applicable authorities thereunder.
Purchase and Sale Agreement—CBC Student Housing LLC - Page 8
Page 213 of 226
(c) "Hazardous Substances" shall mean: (i) any radioactive materials; (ii) any
substance or material the transportation, storage, treatment, handling, use,
removal or release of which is subject to any Environmental Law; or (iii) any
substance or material for which standards of conduct are imposed under any
Environmental Law. Without limiting the generality of the foregoing, "Hazardous
Substances" shall include: asbestos and asbestos -containing materials (whether or
not friable); urea -formaldehyde in any of its forms; polychlorinated biphenyls; oil,
used oil; petroleum products and their by-products; lead-based paint; radon; and
any substances defined as "hazardous waste," "hazardous substances," "pollutants
or contaminants," "toxic substances," "hazardous chemicals," "hazardous
pollutants," or "toxic chemicals "under the CAA, CWA, RCRA, CERCLA,
EPCRA, SDWA, HMTA, TSCA, OSHA, MTCA or HWMA.
(d) "Environmental Matter" shall mean any of the following: (i) the release of any
Hazardous Substance on or at the Property or any other property; (ii) the
migration of any Hazardous Substance onto or from the Property; (iii) the
environmental, health or safety aspects of transportation, storage, treatment,
handling, use or release, whether any of the foregoing occurs on or off the
Property, of Hazardous Substances in connection with the operations or past
operations of the Property; (iv) the violation, or alleged violation with respect to
the Property, of any Environmental Law, order, permit or license of or from any
governmental authority, agency or court relating to environmental, health or
safety matters; (v) the presence of any underground storage tanks within the
confines of the Property; (vi) the presence of wetlands within the confines of the
Property; (vii) the presence of any endangered species on, in or around the
Property; or (viii) soil, groundwater and surface conditions on, in or around the
Property which may have an adverse affect upon the use or value of the Property.
20. Costs and Expenses. Except as otherwise expressly provided herein, each party hereto
will bear its own costs and expenses in connection with the negotiation, preparation and
execution of this Agreement, and other documentation related hereto, and in the
performance of its duties hereunder.
21. Notices. All notices provided for herein may be delivered in person, sent by commercial
overnight courier, telecopied or mailed by U.S. registered or certified mail, return receipt
requested, and, if mailed, shall be considered delivered three (3) business days after
deposit in such mail. The addresses to be used in connection with such correspondence
and notices are the following, or such other address as a party shall from time -to -time
direct:
City:
City of Pasco
P. O. Box 293
525 North 3rd
Pasco, WA 99301
Attn: Dave Zabell, City Manager
(509) 545-3404
Purchase and Sale Agreement CBC Student Housing LLC - Page 9
Page 214 of 226
Purchaser:
CBC Student Housing LLC
90705 North Yakima Drive
West Richland WA 99353
Attn: David Lippes, Manager
22. Miscellaneous.
(a) Further Documentation. Each of the parties agrees to execute, acknowledge, and
deliver upon request by the other party any document which the requesting party
reasonably deems necessary or desirable to evidence or effectuate the rights
herein conferred or to implement or consummate the purposes and intents hereof,
so long as such imposes no different or greater burden upon such party than is
otherwise imposed hereunder.
(b) Headings. The headings in this Agreement are for convenience only and do not in
any way limit or affect the terms and provisions hereof.
(c) Calculation of Time Periods. Unless otherwise specified, in computing any
period of time described in this Agreement, the day of the act or event after which
the designated period of time begins to run is not to be included and the last day
of the period so computed is to be included, unless such Iast day is a Saturday,
Sunday or legal holiday. The final day of any such period shall be deemed to end
at 5 p.m., Pacific Time.
(d) Time of Essence. Time is of the essence of this Agreement.
(e) Gender. Wherever appropriate in this Agreement, the singular shall be deemed to
refer to the plural and the plural to the singular, and pronouns of certain genders
shall be deemed to include either or both of the other genders.
(f) Exhibits. The Exhibits referred to herein and attached to this Agreement are
incorporated herein as if set forth in full.
(g) Unenforceability. If any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the remainder of such provision or any other provisions hereof.
(h) Amendment, Modifications. This Agreement may not be altered, amended,
changed, waived, terminated or modified in any respect or particular unless the
same shall be in writing and signed by or on behalf of the party to be charged
therewith.
23. Attorneys' Fees. If any lawsuit or arbitration arises in connection with this Agreement,
the substantially prevailing party therein shall be entitled to receive from the Iosing party,
the substantially prevailing party's costs and expenses, including reasonable attorneys'
Purchase and Sale Agreement—CBC Student Housing LLC - Page 10
Page 215 of 226
fees incurred in connection therewith, in preparation therefore and on appeal therefrom,
which amounts shall be included in any judgment entered therein.
24. Waiver. A party may, at any time or times, at its election, waive any of the conditions to
its obligations hereunder, but any such waiver shall be effective only if contained in
writing signed by such party. No waiver shall reduce the rights and remedies of such
party by reason of any breach of any other party. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
25. Governing Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Washington.
26. Facsimile Signatures. Each party (a) has agreed to permit the use, from time -to -time and
where appropriate, of telecopied signatures in order to expedite the transaction
contemplated by this Agreement, (b) intends to be bound by its respective telecopied
signature, (c) is aware that the other will rely on the telecopied signature, and (d)
acknowledges such reliance and waives any defenses to the enforcement of the
documents effecting the transaction contemplated by this Agreement based on the fact
that a signature was sent by telecopy.
27. REMEDIES. IF PURCHASER FAILS, AFTER THE REMOVAL OF ITS
CONTINGENCIES, AND WITHOUT LEGAL EXCUSE, TO COMPLETE THE
PURCHASE OF THE PROPERTY, THE DEPOSIT SHALL BE FORFEITED TO CITY
AS LIQUIDATED DAMAGES AND THE SOLE AND EXCLUSIVE REMEDY TO
CITY FOR SUCH FAILURE. IN THE EVENT OF CITY'S DEFAULT, PURCHASER
MAY PURSUE ANY REMEDY AVAILABLE AT LAW OR IN EQUITY,
INCLUDING SPECIFIC PERFORMANCE.
City's Initials Purchaser's Initials
28. Entire Agreement. This Agreement and the exhibits hereto constitute the entire
agreement among the parties with respect to the subject matter hereof and supersede all
prior agreements, oral or written, express or implied, and all negotiations or discussions
of the parties, whether oral or written, and there are no warranties, representations or
agreements among the parties in connection with the subject matter hereof except as set
forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates noted
below.
PURCHASER: CBC Student Housiniz LLC
By: David Lippes Date
Purchase and Sale Agreement—CBC Student Housing LLC - Page I I
Page 216 of 226
CITY
Dave Zabell, City Manager Date
Attest: Approved as to form:
Debbie, City Clerk Leland Kerr, City Attorney
Purchase and Sale Agreement—CBC Student Housing LLC - Page 12
Page 217 of 226
STATE OF WASHINGTON)
) ss.
County of Franklin )
On this day personally appeared before me Dave ,Zabell, City Manager of the City of
Pasco, Washington, to me known to be the individual described in and who executed the within
and foregoing instrument, and acknowledged that he signed the same as his free and voluntary
deed for the uses and purposes therein mentioned.
SUBSCRIBED and sworn to before me this day of , 2016.
Notary Public in and for the State of Washington,
Residing at
My Commission Expires:
STATE OF WASHINGTON )
ss.
County of )
On this day personally appeared before me David Lippes, to me known to be the
individual described in and who executed the within and foregoing instrument, and
acknowledged that he signed the same as his free and voluntary deed for the uses and purposes
therein mentioned.
SUBSCRIBED and sworn to before me this day of
PO
Notary Public in and for the State of Washington,
Residing at
My Commission Expires:
Purchase and Sale Agreement—CBC Student Housing LLC - Page 13
Page 218 of 226
FILED FOR RECORD AT REQUEST OF:
City of Pasco
525 North Stn
Pasco WA 99341
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
THESE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS are
entered into this day of June, 2016, by and between the City of Pasco, Washington, a
Washington Municipal Corporation (hereinafter referred to as "Declarant") and CBC Student
Dousing, LLC, a Washington Limited Liability Company, (hereinafter referred to as "Purchaser").
WHEREAS, the Declarant owns real property located in Pasco, Franklin County, Washington, as
more particularly described below; and
WHEREAS, Purchaser desires to purchase, and the Declarant desires to sell portions of that real
property specifically described below; and
WHEREAS, the Declarant has a continuing interest in the development of that property as well as
the enhancement of the value of the property retained by the Declarant by the adoption of this
Declaration. In consideration of the mutual covenants contained herein:
1. Declaration. The City of Pasco, as Declarant, does hereby declare that the property
described below shall be held, sold, and conveyed subject to the following covenants,
conditions, and restrictions which shall run with the property and any parcel thereof, and
shall be binding on all parties having or acquiring any right, title or interest in such
property, or in part thereof, and shall inure to the benefit of the City of Pasco and any
successors in interest to the benefitted party property as described below.
2. Description of the ProiDerties.
2.1 Burdened Property. The property subject to this Declaration is generally
designated as the east 4.8 acres (excluding that portion of the Sun Willows Golf
Course pond and buffer) designated as Parcel ID No. 113300255, more legally
described in Exhibit A, which is attached hereto and incorporated by this reference.
Declaration of Covenants, Conditions
And Restrictions - 1
Page 220 of 226
2.2 Benefitted Property. The benefitted property retained by the City of Pasco is that
property generally designated as the acres, more legally
described in Exhibit B, which is attached hereto and incorporated by this reference.
In the event the complete legal descriptions are unavailable at the time of execution
or recording, the correct legal description resulting from that record survey or such
parcels, shall be substituted which is hereby acknowledged and approved by the
parties by their signature below.
3. Restriction on Use of Property. The burdened property as described below shall be
developed and used solely for the purposes of providing housing structures and
improvements to serve as off -campus housing for Columbia Basin College.
4. Reversionary Clause and Option to Repurchase.
4.1 The burdened property is being sold to Purchaser in anticipation of the
development of housing project that will be used exclusively for the benefit of
Columbia Basin College.
4.2 The Purchaser acknowledges that the purchase price and consideration given by
Declarant are related to the Declarant's goals of economic development and lost
opportunities for development would arise if Purchaser fails to begin construction
of the anticipated development.
4.3 If the Purchaser fails to submit an application to Declarant for approval of a site
plan and building plans consistent with subsection 4.1 above, within three (3)
months of Closing, the Declarant reserves the right to reclaim title to this Property..
If the Purchaser does not initiate construction within twelve (12) months of
Closing, Declarant reserves the right to reclaim title to this Property. The Declarant
shall reclaim this Property by refunding 90% of the original Purchase Price as
determined in Section 3 above. In the event Purchaser elects the phased options
provided in Section 5 below, this right of reversion shall apply to each of the
sub -parcels purchased independently. The Declarant will not assume any liability
for expenses incurred by Purchaser in conducting this transaction. Purchaser agrees
to re -convey title to the Declarant within sixty (60) days of receipt of notification of
Declarant's decision to seek reconveyance of Property. This reversionary right is
exclusive to the Declarant and shall be exercised at the sole discretion of the
Declarant.
4.4 This reversionary right survives forty-eight (48) months after closing or until such
time as building commences, whichever is earlier. The Declarant shall be under no
obligation to exercise this reversionary right. This reversionary clause shall survive
the delivery of the Deed, but shall automatically lapse upon expiration of the time
Declaration of Covenants, Conditions
And Restrictions - 2
Page 221 of 226
periods herein and Declarant shall execute such further documents as Purchaser
shall request to release same.
5. Common Private Roadw.
5.1 For the benefit of both of the burdened property and the benefitted property above
described, a common roadway, one-half on the Declarant's property and one-half
on the Purchaser's property, shall be established between their respective
properties consisting of a 15 -foot easement encumbering each property at a
location more particularly described in Exhibit C.
5.2 Grant of Easement. By separate document the parties have entered into a
Common Road Maintenance Agreement and Reciprocal Access Easement of this
even date, which shall run with the land and shall encumber and benefit the
properties legally described herein and be binding upon the Purchaser.
6. Enforcement.
6.1 Each property owner shall comply strictly with the covenants, conditions and
restrictions set forth in this Declaration. In the event of a violation or breach of
any of the same, the Declarant or Purchaser, or their successors -in -interest, jointly
or severally, shall have the right to proceed at law or in equity for the recovery of
damages, or for injunctive or other equitable relief as may be available at law. If
the Declarant or Purchaser seeking enforcement under this section is a prevailing
party in any litigation involving this Declaration, then that party also has the right to
recover all costs and expenses incurred including reasonable attorney fees and
paralegal fees. In the event the Declarant seeks injunctive relief under this
provision, no bond shall be required. In the event a Court of competent
jurisdiction determines, notwithstanding this provision, that a bond is required, a
bond shall be allowed at the lowest amount permissible by law.
6.2 In addition the above rights, the Declarant shall have a right of abatement if
Purchaser fails to take reasonable steps to remedy any violation or breach within.
thirty (30) days after written notice sent by certified mail. A Right of Abatement,
as used in this Section, means the right of the Declarant, through its agents and
employees, to enter at all reasonable times upon any property subject to this
Declaration, as to which a violation, breach or other condition to be remedied
exists, and to take the actions specified in the notice to the Purchaser to abate,
extinguish, remove or repair such violation, breach, or other condition which may
exist thereon contrary to the provisions of this Declaration, without being deemed
to have committed a trespass or wrongful act by reason of such entry and such
actions; provided such entry and such actions are carried out in accordance with the
provisions of this Section. The cost thereof including the costs of collection and
Declaration of Covenants, Conditions
And Restrictions - 3
Page 222 of 226
reasonable attorneys' fees shall be a binding personal obligation of the Purchaser,
enforceable at law, and shall be a lien on such Purchaser's parcel.
6.3 Any such lien shall be recorded in the real property records of the Franklin County
Auditor. The Declarant may bring an action to recover a money judgment for
unpaid abatement costs as described above under this Declaration in lieu of
foreclosing a lien. The lien for the abatement costs, provided for in this
Declaration, shall be subordinate to the lien of any mortgage on such property
which was in good faith and for value and which was recorded prior to recordation
of the notice of lien. Sale or transfer of any lot shall not affect the validity of this
lien.
7. General Provisions.
7.1 Amendment and Re eal. This Declaration, or any provision thereof, as from time
to time in effect with respect to all or any part of the properties, may be repealed in
writing by the Declarant, and may be amended by the Declarant with approval in
writing of not less than sixty percent (60%) of the Purchaser.
7.2 Any such repeal of amendment shall become effective only upon recordation in the
real property records of the Franklin County Auditor's Office.
7.3 Notices and Other Documents. All notices and other communications under this
Declaration shall be given to the parties hereto at the following addresses:
7.3.1 If to Declarant:
Mr. Dave Zabell, City Manager
CITY OF PASCO
PO Box 293
525 North 3'
Pasco WA 99301
7.3.2 If to Purchaser:
Mr. David Lippes, Manager
CBC STUDENT HOUSING, LLC
90705 North Yakima River Drive
West Richland WA 99353
7.4 Severabilit . Each provision of this Declaration of Covenants, Conditions and
Restrictions shall be deemed independent and severable, and the invalidity of any
provision shall not affect the validity of enforceability of the remaining part of that
Declaration of Covenants, Conditions
And Restrictions - 4
Page 223 of 226
or any other provision. Except, should it ever be determined that the City of Pasco
is no longer a party benefitted by this Declaration, and is thus no longer capable of
seeking legal remedy to enforce the provisions of this Declaration, then, and unless
appeal or legislation is known to be pending on such detennination, these
covenants, conditions and restrictions shall terminate.
S. Contineency.
8.1 These Declaration of Covenants, Conditions and Restrictions are contingent upon
the purchase by the Purchaser of the burdened property as described above, and, in
the event of Purchaser's failure to close the purchase of the burdened property, the
Covenants, Conditions and Restrictions as provided above, shall be null and void.
IN WITNESS WHEREOF, the parties have executed this Declaration of Covenants, Conditions
and Restrictions on the day of June, 2016.
DECLARANT:
City of Pasco, Washington
0
Dave Zabell, City Manager
Approved as to the Terms and Form:
PURCHASER:
CBC Student Housing, LLC
David Lippes, Manager
Declaration of Covenants, Conditions
And Restrictions - 5
Page 224 of 226
STATE OF WASHINGTON)
) ss.
County of Franklin }
On this day personally appeared before me Dave Zabell, City Manager of the City of
Pasco, Washington, to me known to be the individual described in and who executed the within
and foregoing instrument, and acknowledged that he signed the same as his free and voluntary
deed for the uses and purposes therein mentioned.
SUBSCRIBED and sworn to before me this day of , 2016.
Notary Public in and for
Residing at
My Commission Expires:
STATE OF WASHINGTON )
} ss.
County of }
the State of Washington,
On this day personally appeared before me David Lippes, to me known to be the individual
described in and who executed the within and foregoing instrument, and acknowledged that he
signed the same as his free and voluntary deed for the uses and purposes therein mentioned.
SUBSCRIBED and sworn to before me this day of
Declaration of Covenants, Conditions
And Restrictions - 6
VOK911
.'1
Notary Public in and for the State of Washington,
Residing at
My Commission Expires:
Page 225 of 226
EXHIBIT C
DEVELOPMENT PLAN
As a condition of sale, and as additional consideration to the purchase price, the parties shall
negotiate a Development Plan which consists generally in conformance with the Site Plan
attached as Exhibit 1, and the following, onsite and offsite development to be constructed solely
at the cost of the Purchaser:
1. Construction of a common entry for both parcels on 20`x' Avenue.
2. Common roadway easement with Purchaser constructing the private road.
3. Installation of utilities including a looped waterline, stormwater onsite disposal, and
sewer line tie-in with the airport lift station.
4. Intersection improvements on Argent Road east of 20'x' Avenue: Argent (1) witli 3/
intersection; and Argent (2) (to be determined).
5. Signalized pedestrian crossing at 20'x' Avenue with possible left turn pocket and private
road with pedestrian protection design.
6. Grading of City retained lot (a reasonably acceptable grade as determined by the City).
The parties recognize the necessity of flexibility in the development of both the property to be
purchased by Purchaser and that retained by the City which will require continued cooperative
efforts to determine the most beneficial division, configuration, and appearance of the
improvements to be constructed upon the property.
City's Initials
Purchaser's Initials
Page 226 of 226