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10-11-2010 - Agenda Packet
MEDINA, WASHINGTON CITY COUNCIL AGENDA MEDINA CITY HALL COUNCIL CHAMBERS MONDAY, OCTOBER 11, 2010 6:30 PM MAYOR CITY MANAGER BRET JORDAN DONNA HANSON DEPUTY MAYOR CITY ATTORNEY SHAWN WHITNEY BRUCE DISEND COUNCIL MEMBERS CITY CLERK PATRICK BOYD RACHEL BAKER DOUG DICHARRY JANIE LEE MARK NELSON KATIE PHELPS CALL TO ORDER 6:30PM ROLL CALL PLEDGE OF ALLEGIANCE APPROVAL OF MEETING AGENDA PUBLIC COMMENTS At this time, citizens may address the City Council regarding any issue on the council agenda and any non -agenda items related to City business, excluding public hearings. To ensure equal opportunity for the public to comment, a speaker's comments shall be limited to three minutes per person, per meeting. Those who have service requests or complaints are encouraged to first bring such matters to the city manager for prompt attention and resolution. Council meetings are business meetings where City Council may hear from residents and take action on official City business. In order to accomplish all the business on the agenda and be respectful of everyone's time, Council Members will not be able to engage in dialogue with individual members of the audience. REPORTS AND ANNOUNCEMENTS RA-1: Mayor RA-2: Council RA-3: Advisory Boards/Commissions/Committees RA-4: City Manager/Staff a. City Hall Expansion & Renovation Project/Temporary City Hall Update Medina City Hall . 501 Evergreen Point Road • Medina WA 98039 425-233-6400 phone • 425-454-8490 fax • www.medina-wa.gov CONSENT AGENDA These items will be acted upon as a whole unless called upon by a council member. CA-1: Approval of September 13, 2010 City Council Regular Meeting Minutes CA-2: Approval of September 2010 Check Register Claim check numbers 50765 through 50871 in the amount of $179,075.65 and payroll checks numbers 3121 through 3136 in the amount of $218,369.39. Voided AP check number(s) include 50809 in the amount of $413.00 and canceled AP check number(s) include 50664 in the amount of $192.00. There were no voided payroll checks. CA-3: Authorize City Manager to Negotiate Lease Agreement with Independent Towers Holding for Use of City Property at Fairweather Nature Preserve to Locate a Wireless Communication Facility CA-4: Authorize City Manager to Negotiate a Lease Agreement with ATC Outdoor DAS for Use of City Shop Building to Locate Electronic Radio and Switching Equipment for a Distributed Antenna System CA-5: Receipt of Approved July 21, 2010 Emergency Committee Minutes CA-6: Receipt of Approved June 21, 2010 Park Board Minutes CA-7: Receipt of Approved August 24, 2010 Planning Commission Minutes PUBLIC HEARINGS/OTHER BUSINESS PH-1: Public Hearing for a Franchise Agreement for Telecommunication Facilities Proposed by ATC Outdoor DAS, LLC PH-2 Public Hearing for Proposed Arterial Street Design Standards Ordinance OB-2: Discussion/Action Concerning Proposed Arterial Street Design Standards Ordinance PH-3: Public Hearing for Preliminary 2011 Annual Budget OB-3: Discussion Concerning Preliminary 2011 Annual Budget OTHER BUSINESS OB-4: Discussion Concerning Proposed 2011 Fee Schedule OB-5: Discussion/Action Concerning 2011 Marine Patrol Services Contract OB-6: Discussion on Allowing Wireless Communication Facilities in City Parks OB-7: Discussion on Allowing Temporary Wireless Communication Facilities OB-8: Discussion Concerning Policy Direction on Number of Wireless Communication Towers at Fairweather Preserve Medina City Council October 11, 2010 Page 2 of 3 OTHER BUSINESS (continued) 013-9: Discussion Concerning City Manager Annual Performance Review Process 013-10: Council Agenda Calendar EXECUTIVE SESSION ES-1: Pursuant to RCW 42.30.110 (1)(i) to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party. ADJOURNMENT Next Regular Meeting - Monday, November 8; 2010; 6:30 pm. Medina City Council October 11, 2010 Page 3 of 3 CITY OF MEDINA Office of the City Manager October 11, 2010 To: Mayor and City ouncil From: Donna Hansow,City Manager Subject: City Manager Report 1. The following community outreach took place in the month of September: a. Development notices issued during the month were linked to the city's website in addition to the city's general posting and mailing practices. b. E-notices were sent to subscribers utilizing Govdelivery for development projects, public meetings and hearings, agenda packets, approved meeting minutes, and city council action calendar. As is customary, records were also posted to the city website and public notices were affixed to city notice boards. c. Legal notices were published in the Seattle Times as required for development projects, special meetings, and public hearings. d. A special edition emergency preparedness newsletter was issued. e. The sampling below continues to compare the same categories since inception, as well as last month, for comparison purposes. 4/12/10 09/9/2010 10/06/2010 Capital Improvement Projects 160 213 213 City Council Agenda 193 243 241 City Events and Information 245 333 333 City Newsletter 94 308 310 Hearing Examiner Agenda 118 151 152 Park Board Agenda 121 159 157 Planning Commission Agenda 139 177 176 Total Individual Subscribers 296 449 451 2. Staff has done outstanding work keeping many major issues and demands spinning in the last month and during my vacation. There is an enormous amount of work that has to take place in order to bring all the issues to your meetings. • Temporary City Hall site work • Finalize contract and coordinate with construction contractor • Wireless negotiations and ordinances • Begin sorting and packing to move • Sound Shake • Packet preparation Page 1 3. The Meeting? with the Port of Seattle related to the Part 150 Study is set for the October 27' at 1:30. We will meet here at City Hall at noon and then drive to SeaTac Airport for the 1:30 meeting. The Medina attendees will be Allyson Jackson, Bret Jordan, Shawn Whitney, Doug Dicharry, Dr. Rudolph, and me. The purpose of the meeting is to have a working session focusing on the concerns outlined in the May 27th letter. 4. Jeff Brown, our consultant for the negotiations with Allied Waste has drafted a contract proposal using Kirkland, Bellevue, and Clyde Hill as service models. There was one legal question that had to be answered before we could continue to meet. That looked like it has been settled and we will meet again this month with the goal to have a menu of services and costs for Council discussion at the November Council meeting. This timeframe will be dependent on how much we can accomplish at our next meeting. Page 2 MEDINA POLICE DEPARTMENT MONTHLY SUMMARY SEPTEMBER, 2010 Police Chief Jeffrey Chen FELONY CRIMES Fraud (ID Theft) 2010-0003232 09/01/10 7800 block of NE 10`h St Victim reported between 08/14 and 08/30, a checking account that had been set up fraudulently before the company closed the account due to out of the ordinary transactions that had occurred in a short amount of time. The victim immediately closed the bank account. Fraud (ID Theft) 2010-0003349 09/08/10 2600 block of Evergreen Point Rd Between 09/05 and 09/09, an unknown person(s) made two separate charged and the victim's business credit card. The credit company notified the victim since the card the suspect(s) were using was blocked while trying to use the account at two different gas stations. The victim's account has been closed. Fraud (ID Theft) 2010-0003402 09/11/10 3300 block of Evergreen Point Rd Between 09/09 and 09/10, the victim made two wire transfers through Western Union to Spain thinking a family member was in trouble and needed the money. The victim later discovered the family member was in the United States the entire time. E-lert #10-20 As previously disclosed, a new variation to an old scam continues to appear in Medina and to date, three residents have become victims of this scam. The scam begins when the victim receives a phone call from someone claiming to be a family member (son, daughter, grandchild) or an attorney representing their family member. The suspect tells the victim their family member has been arrested or involved in an accident in a foreign country (the two used so far are Canada and Spain), and bail money, legal fees, or accident repair fees are needed. The victim is then directed to a local office of a money wiring firm to wire the funds to another office in a foreign country. Frequently the victim will receive another call after they have wired the initial funds, with the suspect telling them more money is needed and the process repeats itself. Each of the three victimized Medina residents lost approximately $4,000.00 as a result of this scam. The Medina Police Department continues to investigate and is working with the money wiring firm as well as foreign agencies in the hopes of identifying those responsible. Malicious Mischief 2010-0003509 09/19/10 1000 block of 84`h Ave NE Medina officer responded to a disturbance call whereas one of the subjects caused approximately $400 damage to the other subject's vehicle. The subject was cited for Malicious Mischief in the third degree. Page 3 Theft 2010-0003548 09/24/10 600 block of 84th Ave NE Medina officer responded to a report of a theft of lawn care equipment taken from the back of the victim's truck while he was working in the back of the house. Total estimated loss: $950 Burglary 2010-0003580 09/28/10 7600 block of NE 12th St Victim reported between 9/24 and 9/27 unknown person(s) gained entry to the attached garage and removed a power washer, leaving the hose for the washer behind. Several tools in the garage were also left behind. There was no sign of force into the garage. Total loss: $1400. Theft 2010-0003586 09/28/10 8600 block of NE 19`h PI Medina officer took a report of a theft of lawn maintenance equipment taken from an open truck. Victim reported while working on the back yard, unknown person(s) took a weed eater and a leaf blower. Estimated loss: $900 MISDEMEANOR CRIMES Theft (Mail) 2010-0003473 09/17/10 8100 block of Overlake Dr W Victim reported their lockable mailbox had been opened sometime the night before. The victim altered the bank to be aware of any unauthorized activity. Theft 2010-0003520 09/21/10 800 block of Evergreen Point Rd Victim called to report a theft of an address sign taken from the security gate worth approximately $100. Assault 2010-0003565 09/26/10 300 block of Overlake Dr E Medina officer received a call from a local hospital of an assault that had taken place the prior evening. The reporting party stated a subject known to him tackled him and when his friend tried to intervene was pushed and received minor injury. OTHER Page 4 HUNTS POINT MONTHLY SUMMARY SEPTEMBER, 2010 FELONY CRIMES No significant felony incidents occurred in September, 2010. MISDEMEANOR CRIMES No significant misdemeanor incidents occurred in September, 2010. OTHER Page 5 MEDINA POLICE DEPARTMENT Jeffrey Chen, Chief of Police Monthly Activity Report City of Medina 2010 Felony Crimes September YTD YTD Year End 2010 2010 2009 2009 Assault, Aggravated 0 0 0 _ 0 Robbery 0 0 0 0 Sexual Assault/Rape 0 0 0 0 Burglary (inc Attempt) 1 4 10 11 Drug Violations 0 1 0 0 Fraud (ID Theft) 3 18 12 14 Vehicle Prowl 0 4 7 7 Theft (over $250) 2 7 7 9 Malicious Mischief 1 2 6 6 Arson 0 0 0 0 Auto Theft (inc Recovery) 0 1 3 4 Poss Stolen Property 0 1 2 2 Other 0 0 0 0 TOTAL 7 38 47 53 Misdeameanor September YTD YTD Year End Crimes 2010 2010 2009 2009 Assault, Simple 1 2 2 2 Malicious Mischief 0 6 4 5 Vehicle Prowl 0 2 15 15 Theft (Under $250) 2 4 3 5 Domestic Violence 0 0 3 4 Minor in Possession 0 4 3 5 Drug Violations 0 6 8 10 Poss Stolen Property 0 0 1 1 Total 3 24 39 ` 46 Page 1 Page 6 MEDINA POLICE DEPARTMENT Jeffrey Chen, Chief of Police YEARLY ACTIVITY REPORT City of Medina 2010 Felony Crimes Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov Dec Total Assault, Aggravated 0 0 0 0 0 0 0 0 0 0 Robbery 0 0 0 0 0 0 0 0 0 0 Sexual Assault/Rape 0 0 0 0 0 0 0 0 0 0 Burglary (inc Attempt) 0 0 0 0 0 0 1 2 1 4 Drug Violations 0 0 0 0 0 0 0 1 0 1 Fraud (ID Theft) 1 2 1 0 1 4 1 5 3 18 Vehicle Prowl 0 0 1 0 1 0 1 1 0 4 Theft (over $250) 1 1 0 0 1 0 2 0 2 7 Malicious Mischief 0 0 0 0 1 0 0 0 1 2 Arson 0 0 0 0 0 0 0 0 0 0 Auto/Boat Theft 0 0 0 0 1 0 0 0 0 1 Poss Stolen Property 0 0 0 0 1 0 0 0 0 1 Other 0 0 0 0 0 0 0 0 0 0 TOTAL 2 3 2 0 6 4 5 9 7 0 0 0 38 >' Misdeameanor Crimes Assault, Simple Malicious Mischief Vehicle Prowl Theft (Under $250) Domestic Violence Minor in Possession Drug Violations Poss Stolen Property Total Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov Dec Total 0 0 0 0 0 0 1 0 1 2 0 0 0 0 0 3 1 2 0 6 0 0 0 0 1 1 0 0 0 2 0 1 1 0 0 0 0 0 2 4 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 2 0 0 4 3 1 0 1 0 0 1 0 0 6 0 0 0 0 0 0 0 0 0 0 39 3 1 2 1 4 5 2 3 0 0 0 24 Page 2 Page 7 MEDINA POLICE DEPARTMENT Jeffrey Chen, Chief of Police Monthly Activity Report City of Medina 2010 Traffic September YTD YTD Year End ACCIDENTS 2010 2010 ` 2009 2009 Injury 0 0 0 0 Non -Injury 0 10 6 11 TOTAL 0 10 6 11 Traffic September YTD YTD Year End CITATIONS 2010 2010 2009 2009 Driving Under Influence 4 31 49 68 *Other 5 71 123 163 Total 9 102 172 "231 Traffic September YTD YTD Year End INFRACTIONS 2010 2010 2009 2009 Speeding 24 273 102 136 Parking 15 70 64 83 **Other 18 273 204 274 Total 57 616 370 493 September YTD YTD Year End WARNINGS 2010 2010 2009 2009 Total 93 813 678 872 September YTD YTD Year End CALLS FOR SERVICE 2010 2010 2009 2009 House Watch 30 245 320 420 False Alarms 27 282 272 361 Assists 6 208 301 342 Suspicious Circumstances 10 102 134 159 Property-Found/Lost 3 13 7 9 Animal Complaints 3 35 32 41 Missing Person 0 1 0 2 Warrant Arrests 7 45 47 63 ***Other 0 12 5 9 Total 86 943 1118 1406 *DWLS; Fail to Transfer Title; No License **Expired Tabs; No insurance; Fail to stop; Defective Equipment ***Verbal Domestic; Vandalism; Civil Dispute; Disturbance Page 3 Page 8 MEDINA POLICE DEPARTMENT Jeffrey Chen, Chief of Police YEARLY ACTIVITY REPORT City of Medina 2010 Traffic Accidents Jan ' Feb Mar Apr May Jun Jul Aug Sep Oct :Nov Dec Total Injury 0 0 0 0 0 0 0 0 0 0 Non -Injury 1 1 0 3 3 1 0 1 0 10 TOTAL 1 1 0 3 3, 1 0 1 0 0 0 0 10 Traffic Citations Jan "' Feb Mar Apr May Jun Jul Aug Sep Oct "Nov Dec Total Driving Under Influence 8 3 3 2 3 3 2 3 4 31 Other 14 10 8 12 8 3 5 6 5 71 Total 22 13 11 14 11 6 7 9 9" 0 0 0 102 Traffic Infractions Jan Feb Mar Apr May Jun Jul Aug Sep Oct ;Nov Dec Total Speeding 17 31 34 59 55 8 28 17 24 273 Parldng 2 16 4 1 5 8 15 4 15 70 Other 23 18 22 86 44 20 26 16 18 273 Total 42 65 60 146 104 36 69 37 57 0 0 0 616 Warnings Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total Total 70 80 90 109 126 94 ` 86 65 93 813 Calls for Service Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total House Watch 15 14 31 32 21 35 38 29 30 245 False Alarms 17 22 35 25 40 27 60 29 27 282 Assists 19 20 26 21 31 24 31 30 6 208 Suspicious Circumstance 11 13 13 10 8 16 15 6 10 102 Property-Found/Lost 0 1 0 2 0 0 2 5 3 13 Animal Complaints 3 3 7 3 4 4 3 5 3 35 Missing Person 0 0 0 1 0 0 0 0 0 1 Warrant Arrests 4 8 5 2 8 3 2 6 7 45 Other 2 2 1 2 1 2 2 0 0 12 Total 71 83 118 98 113 Ill 153 110 86 0 0 0 943 Page 4 Page 9 Town of Hunts point MEDINA POLICE DEPARTMENT Jeffrey Chen, Chief of Police Monthly Activity Report Town of Hunts Point 2010 Felony Crimes September YTD YTD Year End 2010 2010 2009 2009 Burglary 0 0 0 0 Forgery (Identity Theft) 0 0 0 0 Vehicle Prowl 0 0 1 1 Theft (over $250) 0 1 2 2 Possession Stolen Prop 0 0 0 0 Drug Violation 0 0 0 0 Auto/Boat Theft 0 0 0 0 TOTAL' ` 0 1 3 3 Misdeameanor September YTD YTD Year End Crimes 2010 2010 2009 2009 Assault, Simple 0 1 0 0 Malicious Mischief 0 10 0 1 Vehicle Prowl 0 0 1 1 Theft (Under $250) 0 2 0 0 Possession Stolen Prop 0 0 0 0 Domestic Violence 0 0 0 0 Minor in Possession 0 0 0 0 Drug Violations 0 1 3 4 Total 0 14 4 6 Page 5 Page 10 Felony Crimes Burglary Forgery (Identity) Vehicle Prowl Theft (over $250) Poss Stolen Prop Drug Violation Auto/Boat Theft TOTAL MEDINA POLICE DEPARTMENT Jeffrey Chen, Chief of Police Yearly Activity Report Town of Hunts Point 2010 Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov Dec Total 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 1 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 0" 0 © 1 0 0 0 0 3 Misdeameanor Crimes Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov Dec Total' Assault, Simple 0 1 0 0 0 0 0 0 0 1 Malicious Mischief 0 0 0 0 0 0 10 0 0 10 Vehicle Prowl 0 0 0 0 0 0 0 0 0 0 Theft (Under $250) 0 0 0 0 0 0 2 0 0 2 Poss Stolen Prop 0 0 0 0 0 0 0 0 0 0 Domestic Violence 0 0 0 0 0 0 0 0 0 0 Minor in Possession 0 0 0 0 0 0 0 0 0 0 Drug Violations 0 0 0 0 0 0 0 1 0 1 Total 0 1 ;0 0 0 0 12 1 0 0 0 0 14. Page 6 Page 11 MEDINA POLICE DEPARTMENT Town of Jeffrey Chen, Chief of Police Hunts Point Monthly Activity Report �'✓:.�J Hunts Point 2010 Traffic September YTD YTD Year End CITATIONS 2010 2010 2009 2009 Driving Under Influence 0 1 6 11 Accidents 0 0 1 3 *Other 0 25 27 34 Total 0 26 34 48 Traffic September YTD YTD Year End INFRACTIONS 2010 2010 2009 2009 Speeding 0 5 0 0 Parking 4 12 0 1 **Other 27 204 209 267 Total 31 221 209 268 September YTD YTD Year End WARNINGS 2010 2010 2009 2009 Total 25 148 153 178 September YTD YTD Year End CALLS FOR SERVICE- 2010 2010 2009 2009 House Watch 1 19 23 29 False Alarms 6 54 37 46 Assists 3 33 35 46 Suspicious Circumstances 1 11 17 25 Property-Lost/Found 0 0 0 0 Animal Complaints 1 4 1 3 Missing Person 0 0 0 0 Warrant Arrests 0 1 6 8 ***Other 0 1 0 0 Total 12 123 ' ` 119 157 *DWLS; Fail to Transfer Title;No License **Expired Tabs; No insurance;Fail to stop;Defective Equipment ***Verbal Domestic; Harassment;Civil Dispute;Trespass Page 7 Page 12 MEDINA POLICE DEPARTMENT TOWS of 5 Jeffrey Chen, Chief of Police HimtS Potllt YEARLY ACTIVITY REPORT HUNTS POINT 2010 Traffic Citations Jan ' Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec ; Total Driving Under Influence 1 0 0 0 0 0 0 0 0 1 Accidents 0 0 0 0 0 0 0 0 0 0 Other 1 2 1 2 6 5 3 5 0 25 Total 2 2 1 2 6 5 3 5" 0 0 ? 0' 26 Traffic Infractions Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec . Total' ` Speeding 0 0 2 0 1 2 0 0 0 5 Parldng 0 0 0 2 0 2 2 2 4 12 Other 17 21 23 23 41 17 21 14 27 204 Total 17 21 25 25 42 21 23' 16, 31 0 0 0 221 Warnings Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total Total 12 15 20 15 22 11 17 11 25 148 Calls for Service Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total` , House Watch 3 5 0 1 2 0 4 3 1 19 False Alarms 5 9 2 6 4 7 8 7 6 54 Assists 3 3 3 4 4 5 3 5 3 33 Suspicious Circumstances 1 2 2 1 2 2 0 0 1 11 Property-Lost/Found 0 0 0 0 0 0 0 0 0 0 Animal Complaints 0 0 0 0 0 2 0 1 1 4 Missing Person 0 0 0 0 0 0 0 0 0 0 Warrant Arrests 0 0 0 0 0 0 1 0 0 1 Other 0 0 0 0 1 0 0 0 0 1 Total 12 19 7 12 13 16 16 16 12 0 0' 0 123 Page 8 Page 13 CITY OF MEDINA Office of the City Manager October 11, 2010 To: Mayor and City Council Via: Donna Hanson, City Manager From: Robert J. Grumbach, AICP, Director of Development Services Subject: Monthly Development Services Department Report Planning Commission Meeting Recap: Staff presented the proposed ordinance on interim arterial street design standards. After discussion, the Planning Commission voted to recommend to the council to adopt the proposed ordinance. Next, the Planning Commission discussed the item on angled setbacks (formerly pitched roof incentives), which was continued from the June 22 meeting. The draft analysis document from the last meeting was presented with previously suggested changes by the Commissioners plus editing corrections incorporated into the document. The consensus was that angled setbacks are the best approach to reducing bulk near property lines, but the majority of the Commissioners have concerns about the consequences this change would have regarding nonconformity and narrower lots. The Planning Commission voted to forward the analysis to the City Council, but included a recommendation not to move forward with this change. The third item was continued discussion on draft code language relating to non- conforming regulations. The most substantive change being proposed is to move away from a threshold of valuation to signify abandonment of a nonconforming right for single-family structures to a threshold using structural demolition. The Planning Commission directed staff to prepare a code amendment for a public hearing at the next meeting. The final item was discussion on a draft document being prepared for the next phase of the comprehensive zoning code update. The document presented new formatting, and included revisions for administrative and general provisions as well as creating tables for use regulations, lot development standards, and bulk standards. The Commissioners provided feedback and continued the discussion to the next meeting. Page 14 Hearing Examiner Decisions: None Land Use Administrative Decisions: None Land Use Decisions Issued For 2010: Type of Decision Variances/ Minor Deviations SEPA Conditional Uses/ Special Uses Substantial Development Permit Lot Line Adjustments Short Subdivisions Site Plan Reviews Wireless Facilities 2010 YTD 2 5 5 4 2 0 1 0 Land Use Applications Received in September: Case Number Description of Permit Location A-272 Temporary Use Permit for 8398 12th Street N.E. City Hall Building/ ROW Permit Applications Received — Sep 1 through Sep 30, 2010: Building Permits: 7 Grading/ Drainage: 4 Demolition Permits: 1 Fence: 0 Mechanical: 6 Reroof: 0 Fire Sprinkler: 0 Right-of-wav Permits 13 Total: Building Permits Issued in August 2010: See Attached. Other Items of Interest: None 2 Page 15 Permit Report August, 2010 2010 2009 Current Current 2010 2009 Month Month YTD YTD Difference Construction Value New Construction 3,254,773 0 5,374,773 7,286,032 (1,911,259) Permit Renewals 0 0 35,303,660 9,010,500 26,293,160 Addition/Alteration 10,000 60,000 2,464,238 3,213,355 (749,117) Accessory Structure 351,132 192,160 861,482 273,460 588,022 Repair/Replace 0 0 121,520 55,980 65,540 Fence/Wall 17,000 0 111,900 1,027,849 (915,949) Mechanical 130,000 N/A N/A N/A N/A Fire Sprinkler 10,385 227,000 96,026 276,011 (179,985) Wireless Comm Facility 0 0 0 0 0 TOTAL VALUE 1 $3,773,2901 $479,1601 1 $44,333,5991 $21,143,1871 $23,190,412 Permits Issued New Construction 2 0 3 4 (1) Permit Renewals 0 0 13 6 7 Addition / Alteration 1 1 12 14 (2) Accessory Structure 3 3 17 11 6 Fence/Wall 2 0 8 16 (8) Demolition 1 1 3 11 (8) Grading/Drainage 3 1 14 11 3 Tree Mitigation 3 0 11 9 2 Mechanical 8 6 43 37 6 Fire Sprinkler 2 1 7 6 1 Reroof 3 0 7 3 4 Repair / Replace 0 0 3 3 0 Right -of -Way Use 4 3 39 43 (4) Construction Mitigation 2 1 5 11 (6) Wireless Comm Facility 0 0 0 0 0 TOTAL PERMITS 34 17 185 185 0 Inspections Building 51 58 297 336 (39) Construction Mitigation 3 1 20 19 1 Grading/Drainage 16 27 62 112 (50) Tree Mitigation 12 4 42 49 (7) Right -of -Way 29 10 119 165 46 TOTAL INSPECTIONS ill 100 540 681 (141 Page 16 CITY OF MEDINA Office of the City Manager October 4, 2010 To: Mayor and City Council Via: Donna Hanson, City Manager From: Joe Willis Sr., Director of Public Works Subject: September 2010 Public Works Report 1. Since the City Council awarded the City Hall Expansion and Renovation Project on September 13th to Par -Tech Construction, the focus has been on the preparation of the temporary City Hall site, portable office leases, and procurement of a moving company. The lease agreement with St Thomas Church has been signed and a side sewer permit was obtained from Bellevue Utilities. Cascade Materials was awarded the site preparation contract with the lowest bid amount of $37,244. The site work began on October 4th and is estimate to take one week. Accurate Electric will provide the necessary electrical connections for the portable offices at a cost of $5,430. Following the site preparation work, the portable office trailers will be delivered and set up. Bekins Moving and Storage will provide the moving containers and move City Hall contents at a cost of $4,118. City Hall staff are making preparations for the move; boxing up materials to be stored, discarding excess items, and planning for the move. Page 17 Portable Office Interior 2. On September 30th, the Director of Public Works met with George Fies and John White of the WSDOT Bridge Replacement and Westside SR 520 management team to discuss the bridge eastside landing and maintenance facility. The Westside project will go through more public meetings and discussions between the various citizen and neighborhood groups before the final EIS document is published in the spring of 2011. The selection of the Design/Build contract team has not progressed as far as the Eastside Medina to SR 202 Project where the Design/Build Team is expected to be announced on October 131h, but the same form of City participation and staff reimbursement via GCA Agreements is expected for the Westside Project. The present date for construction of SR 520 is 2011 through 2014. 3. The Public Works crew continues to focus on trimming vegetation along sidewalks, to replace street signs, placed a picnic table at Viewpoint Park, maintain the speed monitoring trailers, trimmed the willow tree at the south bridge in Medina Park, and maintain the parks. An additional storage locker was rented to store City Hall materials and the crew is moving boxes of records to the storage locker as staff requests. A recycle container has been placed at City Hall for discarded papers and records that do not require shredding. 2 Page 18 Trimming along the South Pond in Medina Park Page 19 ITEM CA-1 DRAFT MEDINA CITY COUNCIL REGULAR MEETING MINUTES Medina City Hall Council Chambers September 13, 2010; 6:30 pm CALL TO ORDER Bret Jordan called the September 13, 2010 Regular Meeting of the Medina City Council to order at 6:34 pm. ROLL CALL Council Members Present: Patrick Boyd, Doug Dicharry, Bret Jordan, Janie Lee, Mark Nelson, Katie Phelps, and Shawn Whitney City Staff Present: Donna Hanson, City Manager; Jeff Chen, Police Chief; Joe Willis, Public Works Director; Robert Grumbach, Development Services Director; Nancy, Adams, Finance Director; and Rachel Baker, City Clerk Mayor led council, staff and audience members in the Pledge of Allegiance. APPROVAL OF MEETING AGENDA MOTION PHELPS AND SECOND NELSON TO MOVE ITEM OB-2, DISCUSSION RELATED TO DRAFT PRELIMINARY 2011 ANNUAL BUDGET, TO OB-10 AND TO MOVE REMAINING OTHER BUSINESS ITEMS UP IN ORDER. MOTION CARRIED 6-1 BOYD OPPOSED AT 6:36 PM. MOTION NELSON AND SECOND BOYD TO APPROVE AGENDA AS AMENDED. MOTION CARRIED 7-0 AT 6:37 PM. PUBLIC COMMENT Mayor opened public comment period at 6:37 pm Hunts Point Mayor Pro Tern Ted Frantz spoke about State Route 520/84 Avenue Northeast ramp design. He said the Hunts Point Town Council voted unanimously on September 7 to pursue loop design and would like to work with all Points communities to arrive at the best solution for all and expressed hope Medina would consider adopting the loop design. Bellevue resident, Paula Wells, talked about an incident that occurred at Medina Park involving her unleashed dog who unexpectedly wandered into on -leash area and the resulting interaction with a Medina police officer. She held that the $500 citation issued and the unnecessary treatment of her dog by the officer were excessive. Ms. Page 20 ITEM CA-1 DRAFT Wells suggested installation of a barrier to separate on leash and off leash areas. City manager conveyed she would follow up with commenter. Medina resident, Jean Manning, stated the $500 fine for unleashed pets is astronomical and suggested council consider changing it. Ms. Manning added the number of dogs allowed per handler should also be reconsidered. Hunts Point resident, Dan Niles, spoke about State Route 520/84 Avenue Northeast ramp design and hoped Points communities will support loop configuration. Mayor closed public comment period at 6:51 pm. REPORTS AND ANNOUNCEMENTS Jordan anticipated requesting State Route 520 Project representatives to present information regarding the State Route 520/84 Avenue Northeast ramp design during the October city council meeting. Phelps acknowledged Medina Days co-chairs Matt Kochel and Ross Mickel for their efforts resulting in another successful Medina Days event. Medina Planning Commission chair Judie O'Brien explained the commission's current task of updating the zoning code and added the community is participating and proving input regarding the matter. Medina Emergency Committee chair Kay Koelemay invited all to attend a CPR and AED demonstration occurring at 6:00 pm, on September 16 at city hall. Willis and Hanson provided information in response to an earlier inquiry concerning vegetation clearing in city rights of way. Staff responded to inquiries regarding department reports. CONSENT AGENDA MOTION DICHARRY AND SECOND NELSON TO ADOPT CONSENT AGENDA. MOTION CARRIED 7-0 AT 7:02 PM. - Approval of August 9, 2010 Medina City Council Special Meeting Minutes - Approval of August 9, 2010 Medina City Council Regular Meeting Minutes - Approval of September 7, 2010 Medina City Council Special Meeting Minutes - Approval of 2010 Check Register Claim check numbers 50647 through 50764 in the amount of $143,305.49, payroll check numbers 3100 through 3120 in the amount of $230,090.34 Voided AP check number 50700 to WA Department of Licensing in amount of $30.00. - Acceptance of ALPR Camera Project and Release of Retainage - "Tobacco -free Teens" Back to School Week Proclamation - Receipt of July 27, 2010 Medina Planning Commission Meeting Minutes City Council Minutes September 13, 201C Page 2 Page 21 ITEM CA-1 DRAFT PUBLIC HEARING Ordinance Related to Wireless Communication Facilities (7.02 pm) Grumbach summarized ordinance proposal Mayor opened public hearing at 7:05 pm. Doug Kierney, ATC Outdoor DAS, LLC, thanked city council and staff for hard work on matter and iterated ATC is no longer requesting removal of undergrounding requirement. Mayor closed public hearing at 7:06 pm. OTHER BUSINESS Ordinance Related to Wireless Communication Facilities (7:06 pm) Grumbach answered questions raised by council members. Mayor requested information concerning antennas installed in city -owned spaces and Grumbach conveyed it would be provided to council during October meeting. MOTION DICHARRY AND SECOND BOYD TO ADOPT AN ORDINANCE REPEALING AND RE-ENACTING NEW REGULATIONS RELATING TO WIRELESS COMMUNICATION FACILITIES. MOTION CARRIED 7-0 AT 7:16 PM. Award Contract for Medina City Hall Renovation and Expansion Project (7:16 pm) Willis recommended council award contract to low bidder, Par Tech Construction. Willis summarized process undertaken to locate a construction manager for city hall project and recommended finalist David A. Clark Architects, PLLC. MOTION WHITNEY AND SECOND NELSON TO AWARD THE CITY HALL ADDITION AND RENOVATION PROJECT TO PAR -TECH CONSTRUCTION AND AUTHORIZE THE CITY MANAGER TO SIGN THE CONTRACT AGREEMENT, AND AUTHORIZE THE CITY MANAGER TO ENTER INTO SPECIFIC AGREEMENT LOCATED ON DAIS FROM DAVID A. CLARK ARCHITECTS FOR CONSTRUCTION MANAGEMENT SERVICES TO MANAGE THE PROJECT. MOTION CARRIED 7-0 AT 7:27 PM. Contract Approval, Temporary City Hall Modular Office Lease (7:27 pm) Willis answered questions from council. MOTION NELSON AND SECOND DICHARRY TO AUTHORIZE THE CITY MANAGER TO NEGOTIATE A LEASE AGREEMENT WITH MOBILE MINI, INC. FOR TWO MODULAR OFFICES AND FOLLOWING CITY ATTORNEY REVIEW TO SIGN THE AGREEMENT. MOTION CARRIED 7-0 AT 7:30 PM. City Council Minutes September 13, 2010 Page 3 Page 22 ITEM CA-1 DRAFT Contract Approval, Temporary City Hall Lease and Site Improvements with St. Thomas Church (7.30 pm) Nelson voiced that as a member of St. Thomas Church he would recuse himself from discussion. No one requested he do so and Nelson remained in attendance. Willis answered questions from council. MOTION PHELPS AND SECOND BOYD TO AUTHORIZE THE CITY MANAGER TO SIGN A LEASE AGREEMENT WITH ST. THOMAS CHURCH AND FOLLOWING ST. THOMAS CHURCH SIGNING OF THE AGREEMENT, AUTHORIZE THE DIRECTOR OF PUBLIC WORKS TO PROCEED WITH THE SITE IMPROVEMENT WORK. MOTION CARRIED 7-0 AT 7:33 PM. Application for Proposed Comprehensive Plan Amendment Relatinq to Streetscape Policies and Non -Motorized Transportation Plan (7:34 pm) Grumbach introduced item. Nelson suggested changing term "scenic" to "sylvan" in the plan. Discussion on Arterial Street Design Standards (7:38 pm) Willis and Grumbach summarized matter and responded to council questions. Council discussed item. MOTION BOYD AND SECOND WHITNEY TO FORWARD THE PROPOSED ADOPTION OF THE CITY OF BELLEVUE TRANSPORTATION DEPARTMENT DESIGN MANUAL WITH AUTHORIZATION FOR THE CITY ENGINEER TO ADMINISTRATIVELY MODIFY THE DESIGN MANUAL AS THE INTERIM CITY OF MEDINA ARTERIAL STREET STANDARDS UNTIL AMENDMENTS TO THE MEDINA COMPREHENSIVE PLAN ARE ACCOMPLISHED AND ADOPTED RELATING TO STREETSCAPE AND STREET STANDARDS TO THE PLANNING COMMISSION FOR CONSIDERATION WITH INSTRUCTION TO PROVIDE RECOMMENDATIONS FOR COUNCIL CONSIDERATION ON OCTOBER 11, 2010. MOTION CARRIED 7-0 AT 7:43 PM. Ordinance Relating to Construction Mitigation Measures in the Citys Rights of Way and the City Engineer's Authority to Modify Standard Specifications for Roads and Bridge Construction (7:43 pm) Grumbach defined ordinance proposal. MOTION LEE AND SECOND NELSON TO ADOPT AN ORDINANCE OF THE CITY OF MEDINA RELATING TO CONSTRUCTION MITIGATION MEASURES IN THE CITY'S RIGHTS OF WAY AND THE CITY ENGINEER'S AUTHORITY TO MODIFY STANDARD SPECIFICATIONS FOR ROADS AND BRIDGE CONSTRUCTION. MOTION CARRIED 7-0 AT 7:45 PM. City Council Minutes September 13, 2010 Page 4 Page 23 ITEM CA-1 DRAFT Proposed Inattentive to Driving Ordinance, Amending Section 10 64 010 of the Medina Municipal Code (7:45 pm) Chen provided background on subject. MOTION DICHARRY AND SECOND NELSON TO APPROVE THE AMENDMENT TO MEDINA MUNICIPAL CODE 10.64.010 ESTABLISHING A PENALTY FOR THE INFRACTION OF INATTENTION TO DRIVING. MOTION CARRIED 7-0 AT 7:48 PM. Marine Patrol Contract (7:49 pm) Chen led discussion and introduced Seattle Harbor Patrol Lieutenant Mark Olson and Sergeant Doug Harris, who, with Chen responded to council inquiries. Medina's five year call history and excise tax figures were requested. Lee asked for contracts to be renegotiated prior to October meeting. MOTION BOYD AND SECOND WHITNEY TO ENTER INTO AN INTERLOCAL AGREEMENT FOR MARINE PATROL SERVICES WITH THE CITY OF SEATTLE. MOTION FAILED DUE TO PRECEDENCE OF MOTION TO TABLE. MOTION DICHARRY AND SECOND NELSON TO TABLE MOTION UNTIL NEXT MEETING. MOTION CARRIED 4-3 (BOYD, JORDAN, WHITNEY OPPOSED) AT 8:15 PM. Mayor recessed for a break at 8:16 pm and called the meeting back to order at 8:27 pm. Discussion Related to Draft Preliminary 2011 Annual Budget (8:27 pm) Hanson and Adams answered council questions. Council members discussed document and provided individual ideas for reducing expenditures and raising revenues. Council discussion resulted in suggestions to implement utility and franchise taxes to extent possible allowed by council action, to institute a one -percent property tax and accept the banked capacity, to limit expenditure of reserve funds to $200,000 to $300,000, to reduce proposed budget one to two percent, to consider furloughs while maintaining core services, and to apply a salary freeze. Jordan asked city manager to solve matter concerning continued rent for the public works director's trailer. Council Agenda Calendar (9:43 pm) Agenda calendar discussed. The following items were added to the October agenda: tentative WSDOT State Route 520 presentation, Medina Park off leash area discussion related to fines, annual city manager performance evaluation process, marine patrol services contract, antennas in public buildings/parks, and temporary City Council Minutes September 13, 2010 Page 5 Page 24 ITEM CA-1 DRAFT wireless facilities. For November council requested item: hearing examiner versus city council decision making authority over certain permit applications. ADJOURNMENT MOTION BOYD AND SECOND DICHARRY TO ADJOURN THE SEPTEMBER 13, 2010 REGULAR MEETING. THE MOTION CARRIED 7-0 AT 9:59 PM. The September 13, 2010 Regular Meeting of the Medina City Council adjourned at 9:59 pm. The Medina City Council will hold its next Regular Meeting on Monday, October 11, 2010, at 6:30 pm. Bret Jordan, Mayor Attest: Rachel Baker, City Clerk City Council Minutes September 13, 2010 Page 6 Page 25 ITEM CA-2 CITY OF MEDINA October 11, 2010 To: Mayor and City Council From: Nancy Adams, Director of Finance Re: Finance Report — September Financials Please find Revenue & Expense Summaries for September 2010 enclosed in your Council Packet. Revenue: Total Annual Revenue for September YTD 2010 was $3.740M compared to $3.473M for September YTD 2009.. - Property Tax was $60K higher for YTD 2010 compared to YTD 2009. - Sales Tax was $31 K higher for YTD 2010 compared to YTD 2009. - Licenses/Permits were $55K higher for YTD 2010 compared to YTD 2009. - REET (Real Estate Excise Tax) was $35K higher for YTD 2010 compared to YTD 2009. Intergovernmental Revenue was $264K higher for YTD 2010 compared to YTD 2009. Expense: - Total Annual Expense for September YTD 2010 was $11 OK higher than September YTD 2009 (including City Hall Expenses). City Hall Project: Finance has set up new BARS Codes to track the City Hall Project. Capital Expenditures related to City Hall are 154K for the period of January -September 2010. Page 26 N Q ci W R E E 3 O C C O N N 01 GCL N d �W d Ca Q. N V N 3 C N > N N O O OD wW d' M h O O M 0 0 N V O W 0 a 7 V O V w O h O N C. 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O R CP v v m¢ " O m 01 Pl to LD LD w rl g w Ln J= w w O O N �"� 3 (� N N � oLn ONLn00Lnw v0 0) O '� O ID d' m N N N N} N 01 O O F- M I� N N N N M O wvo 3 vv',.i O O e-1 a-1 0¢ m .-1 O O N d' d' a a M aa,, 000 m m m m m m¢ o w O O 'y N VI to C, W O \ O m (D LD ¢ O u U W IR Ln O n eY t? A u M v Medina City Council Regular Meeting ITEM CA-3 Monday, October 11, 2010 AGENDA BILL Lease of Fairweather Park for Independent Towers Holding Wireless Subject: Communication Facility Category: ® Consent ❑ Ordinance ❑ Public Hearing 9 ❑ City Council Business ❑ Resolution ❑ Other -Discussion PreQared By _Robert Grumbach, Development Services- Director Summary. Independent Towers, partnering with AT&T, has approached the City about leasing property at Fairweather Natural Preserve for the purpose of constructing a wireless communication tower. They are proposing to construct an 80-foot monopole disguised as a pine tree. (Note: the City may consider other types of concealment rather than disguising the facility as a pine tree.) LEASE REQUIREMENTS: • Independent Towers will need to meet the standards set forth in MMC 19.08.030 in order for the City Council to approve the lease. • Fair and reasonable compensation for the rights to lease public property may be included in the agreement. • Terms of a lease are one year, but the lease agreement may specify different terms. Note: City Council action would only authorize the City Manager to proceed with negotiating a lease. Final approval of a lease would require future City Council action. Attachment(s): 1. Lease Application for Proposed Telecommunications Facility Budget/Fiscal Fact: Month[ rV revenue to be determined Staff Recommendation: Agprgve City Manager Move to authorize the city manager to negotiate a lease agreement with Independent Towers Holding and its agent for the use of city property at Fairweather Nature Preserve to locate a wireless communication facility Proposed and if a lease is successfully negotiated to bring it back to the city council Council Motion: for consideration. Page 32 INDEPENDENT TOWERS HOLDINGS, LLC THE RIGHT CONNECTIONS September 29, 2010 Ms. Rachel Baker, City Clerk 501 Evergreen Point Road Medina, WA 98039 RE: Revised Lease Application for Proposed Telecommunications Facility City Park - NE 32"d Street, Medina, WA Dear Ms. Baker, As specified in your City ordinance, Title 19 - TELECOMMUNICATIONS, Chapter 19.08 - FACILITIES LEASE, Subsection 19.08.020 LEASE APPLICATION, we are submitting our revised formal solicitation for a facilities lease at the above referenced location. Additional information is as follows. A. The existing City Park currently has an open field, wooded area and tennis courts. We are proposing the following: a. 80-foot mono -pine tower. We understand this height would be in accordance with the recently adopted telecommunications standard for this area. This would be a monopole- type tower structure "disguised to look like a pine tree. It would be designed to house up to (4) wireless antenna arrays or in other words, (4) distinct wireless carriers at different elevations. b. We understand the City's desire to place all equipment underground. While technically feasible, the additional cost to construct such a facility is great. We are proposing two (2) separate options, which are further reflected in our financial proposal below. i. Option 1- A 40-ft x 40-ft building, designed in architectural accordance with the local area. The design of the building itself would house the telecommunication equipment above ground but inside the building. We would work with the City Planning staff to provide input on the final design. We are committed to find some sort of mutually agreeable (creative) solution. ii. Option 2 - An underground building of approximately the same dimensions. There would be air-conditioning units above ground, probably hidden behind a landscaped buffer or fenced enclosure. iii. Either option would include a proposed picnic and landscaped area between the tower site and the existing tennis courts. We are trying to maintain a visual buffer between the recreational use of the park and the tower facility. c. Either building would be served by underground extensions of electric and telephone. 11 Herbert Drive, Latham, NY =110 Page 33 (518) 608-4806 Office - (518) 690-0793 Fax d. Cabling from the building to the monopine would be underground. e. Parking (at this time) would not be increased. The wireless carriers tend to visit the site approximately 1x/month. Given that frequency, we do not believe that warrants additional parking. B. The City property where this installation is proposed is the City Park at NE 32"d Street, City of Medina, WA. C. Preliminary Lease Exhibits for Options 1 & 2 are attached which detail the proposed installation including improvements and utilities. It will be revised subsequent to further conversations on the dual functionality of the structure. D. See answer to C above. E. As the applicant, we will not be providing any cable service, video or dial tone services. The eventual tenants of the tower may provide these services, as they are typically the commercial wireless providers such as Verizon Wireless, ATT Wireless, Sprint/Nextel, T- Mobile, and Clearwire, etal. At this time, ATT Wireless will be our initial tenant. F. We do not intend to locate on any other City facilities at this time. As opposed to a conventional wireless carrier, we are a tower developer that is proposing this structure for collocation by all the wireless carriers. G. We will offer the City one of the spaces on the tower for free. Typically, the City uses this space for public safety communication purposes. H. We are available to meet the City in person, make a presentation to the City, or provide whatever additional information is required. I. Please let us know what an application fee might be. Independent Towers, LLC has been in existence over (7) years. We can be further researched at www.independenttowers.com. We have done other municipal type deals which we are more than willing to provide elaboration on, if requested. The financial terms of such a lease agreement are yet to be determined. Given our other successful municipal deals, we are suggesting the following payment options: 1. Option 1 a. $2500/month ($30,000/year) for the initial rent and 15% of any gross collocation revenue after the first tenant. Or, b. A lump sum payment of $250,000 for the first (10) year term and 15% of any gross collocation revenue after the first tenant. After the first term is over, we would re -commence a standard monthly rate of $2750 for year 11. Or, c. A lump sum payment of $300,000 for the first (10) year term. After the first term is over, we would re -commence a standard monthly rate of $2750 for year 11. 2. Option 2 a. $1500/month for the initial rent and 15% of any gross collocation revenue after the first tenant. Or, b. A lump sum payment of $145,000 for the first (10) year term and 15% of any gross collocation revenue after the first tenant. After the first term is 11 Herbert Drive, Latham, NY 12110 Page 34 (518) 608-4806 Office -- (518) 690-0793 Fax over, we would re -commence a standard monthly rate of $1800 for year 11. Or, c. A Jump sum payment of $180,000 for the first (10) year term. After the first term is over, we would re -commence a standard monthly rate of $1800 for year 11. We hope that this proposal can prompt -a further discussion. Regards, John S. Stevens, PE President/Owner Attachments: Preliminary Drawings — Options 1 & 2 AT&T Interest Letter 11 Herbert Drive, Latham, NY 12110 Page 35 (518) 608-4806 Office -- (518) 690-0793 Fax Medina City Council Regular Meeting ITEM CA-4 Monday, October 11, 2010 AGENDA BILL Lease of city shop property by ATC Outdoor DAS for electronic radio and Subject: switching equipment for a distributed antenna system. Category: ® Consent ❑ Ordinance ❑ Public Hearing 9 ❑ City Council Business ❑ Resolution ❑ Other -Discussion __Prepared By - __Robert Grumbach, Development Services Director Summary: Independent Towers, partnering with AT&T, has approached the City about leasing property at ATC Outdoor Das, LLC, has approached the City about leasing space as the City Shop building for the purpose of locating electronic radio and switching equipment for their proposed Distributed Antenna System. The equipment would also include fiber optic connections/ switching station to transmit signals into the land based telephone system. ZONING CODE CONSIDERATIONS: • The Zoning Code permits wireless communication ancillary equipment to be located inside of City -owned buildings. • Chapter 17.90 MMC set forth site development standards including landscaping that are required and would be evaluated at the time a formal permit application is submitted LEASE REQUIREMENTS: • ATC Outdoor DAS will need to meet the standards set forth in MMC 19.08.030 in order for the City Council to approve a lease. • Fair and reasonable compensation for the rights to lease public property may be included in the agreement. • Terms of a lease are one year, but the lease agreement may specify different terms. Note: City Council action would only authorize the City Manager to proceed with negotiating a lease. Final approval of a lease would require a future City Council action Attachment(s): 1. Application for lease Budget/Fiscal Impact: Monthly -revenue to be determined. Staff _ Recommendation: Approv' City Manager Mb'v'e to authorize the city manager to negotiate a lease agreement with ATC Outdoor DAS for the use of city property to locate electronic radio Proposed and switching equipment for a distributed antenna system and if a lease is Council Motion: _ successful negotiated to brin�it back to city council for consideration. Page 36 ITEM CA-4 September 27, 2010 Robert Grumbach Planning Director PO Box 144 501 Evergreen Point Road Medina, WA 98039 Re: ATC Outdoor DAS HUB location Lease Application Dear Robert Grumbach: This letter, together with the attachments, constitutes ATC Outdoor DAS, LLC's Lease application for the HUB location at the City Yard pursuant to Medina City Code Chapter 19.08.020 Lease application and 19.04.020 Telecommunications right-of-way use authorization. The attachments include: • Exhibit A: Site plan and elevations depicting the proposed location for the HUB equipment room. • Exhibit B: Certification of Registration of ATC Outdoor DAS, LLC, UT-080221 In addition, Medina City Code § 19.04.020 set forth the application requirements for a telecommunications lease. ATC's responses regarding each of these requirements/criteria are set forth in italics below. 19.08.020 Lease application. Any person that desires to solicit the city's approval of a facilities lease pursuant to this chapter shall file a lease proposal with the city's clerk which, in addition to the information required by MMC 19.04.020, shall include the following: A. A description of the telecommunications facilities or other equipment proposed to be located upon city property: The HUB proposed at the City Yard will house the necessary electronic radio and switching equipment for the Distributed Antenna System. (DAS) It will also house the electronic radio equipment for AT&T and any future wireless carriers utilizing DAS. It will also provide the fiber optic connections/switching station for the land based telephone system. Y:\WP\A,MERICAN TOWER CO\PRANCHISE CVR LTR 020210.DOC Page 37 City of Medina - 2 - September 27, 2010 B. A description of the city property upon which the applicant proposes to locate telecommunications facilities or other equipment; Please see attached site plan (Exhibit A) C. Preliminary plans and specifications in sufficient detail to identify: 1. The location(s) of existing telecommunications facilities or other equipment upon the city property, whether publicly or privately owned; 2. The location and source of electric and other utilities required for the installation and operation of the proposed facilities; Please see attached site plan (Exhibit A) D. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment; Please see attached site plan (Exhibit A) E. Whether the applicant intends to provide cable service, video dialtone service or other videoprogramming service, and sufficient information to determine whether such service is subject to cable franchising; Not applicable F. An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use or lease; Not applicable G. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational, and governmental institutions; None proposed. H. Such other and further information as maybe requested by the city; and Request for further information requested by the City is undetermined at time of submittal of the application. I. An application fee which shall be set by the city council by resolution. (Ord. 692 § 5, 2001) To be determined §19.04.020 Telecommunications Right -of -Way Use Authorization Application Any person that desires a telecommunications right-of-way use authorization pursuant to this chapter shall file an application with the city clerk which shall include the following information: A. The name of the applicant, including all affiliates of the applicant; Y:\WP\AMERICAN TOWER CO\FRANCHISE CVR LTR 020210.DOC Page 38 City of Medina - 3 - September 27, 2010 ATC Outdoor DAS, LLC B. A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities; ATC proposes to construct, install, own, operate, maintain, repair and upgrade an outdoor Distributed Antenna System ("DAS') in Medina to improve telecommunications service in the City. Such DAS network will consist of wireline and other telecommunication facilities, including, but not limited to, fiber optic cabling and remote communication nodes consisting of antennas, radio amplifiers, signal converters, power supplies and meters, enclosures and ancillary cabling, connectors and equipment, to be located in, over and under public rights of way. The HUB proposed at the City Yard will house the necessary electronic radio and switching equipment for Distributed Antenna System. It will also provide the fiber optic connections/switching station for the land based telephone system. C. A description of the transmission medium that will be used by the applicant to offer or provide such telecommunications services; See response to (B) above D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, all in sufficient detail to identify: See Exhibit A 1) The location and route requested for applicant's proposed telecommunications facilities; See Exhibit A 2) The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route; See Exhibit A 3) The location(s), if any, for interconnection with telecommunications facilities of other telecommunications carriers; and See Exhibit A 4) The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate; Y:AWPVAMERICAN TOWER COVRANCHISE CVR LTR 020210.DOC Page 39 City of Medina - 4 - September 27, 2010 See Exhibit A E. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route; See Exhibit A F. If the applicant is proposing an underground installation in existing ducts or conduits within the rights -of -way, provide sufficient detail to identify; Install approximately 300 feet of underground fiber optic to serve the DAS HUB. G. If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the rights -of -way; See Exhibit A 1) The location proposed for the new ducts or conduits; See Exhibit A 2) The excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities; None proposed at this time. H. A preliminary construction schedule and completion date; ATC proposes to initiate construction in as soon as the lease, Special Use Permit and building permit are approved. Construction should be completed in approximately 45 days. I. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities, and to offer or provide the telecommunications services, including, but not limited to, evidence that the applicant has registered with the Washington Utilities and Transportation Commission or is not required to so register; See Exhibit B J. All deposits or charges required pursuant to this chapter; and No deposits or charges are known to be required at this time. K. An application fee which shall be set by the city council by resolution. Undetermined at this time Y:IWPWMERICAN TOWER C07RANCHISE CVR LTR 020210.DOC Page 40 City of Medina - 5 - September 27, 2010 Thank you in advance for your assistance, Sincerely, Douglas Kearney ATC Outdoor DAS, LLC. Y:\WPWMERICAN TOWER CO\FRANCHISE CVR LTR 020210.DOC Page 41 CITY OF MEDINA Emergency Preparedness Committee Meeting July 21, 2010 Medina City Hall Chambers 7. 00 p.m. 501 Evergreen Point Road CALL TO ORDER The Emergency Preparedness Committee Meeting was called to order at 7:04 p.m. by Chair Kay Koelemay. This followed a Citizens Emergency Response Team (CERT) Meeting. ROLL CALL Committee: Kay Koelemay, Cy Humphreys, Margaret Maxwell Volunteers: Doug Dicharry, Chris Gulacsik, Bruce Swenson Staff Present: Police Chief Jeff Chen and Emergency Preparedness Coordinator Kris Finnigan APPROVAL OF MINUTES MOTION MAXWELUSECOND KOELEMAY TO APPROVE JUNE 16, 2010 MEETING MINUTES AS WRITTEN. MOTION APPROVED. REMARKSIANNOUNCEMENTS Psychological First Aid Doug Dicharry reported that he had attended a Train -the -Trainer course in Psychological First Aid. He explained that the focus of the class was "Listen, Connect and Protect." He related that mental health injuries sustained in a disaster may take a long time to identify and that basic human connections can make a big difference. Discussion followed, relative to the possibility of Dicharry presenting a course for interested community members, at some time in the future. Koelemay suggested that the topic be considered for the October 20t" Meeting. OTHER BUSINESS Medical Reserve Corps Chair Koelemay noted that the Medical Reserve Corps is an excellent option for those in the medical community who may be interested in being part of a disaster response team. In this role, she explained that they would be covered for liability. Page 42 Communications Committee Communications Chair Humphreys stated that Ham operators would be exercising on July 31st, the fifth Saturday of the month. Sound Shake 2010 Chief Chen reported that the city would be participating in Sound Shake 2010, on October 7tt', for six hours. He said that the scenarios would be available closer to the time of the exercise and that the mobile command coach would serve as the city's emergency operations center during this drill. Dicharry said that he would spread the word to radio holders, regarding Sound Shake 2010. Medina Days Finnigan reported on plans to date, for the Emergency Preparedness Medina Days Booth. Koelemay passed out materials for use during the Radio Scavenger Hunt, planned for Saturday, August 14t", She explained that the activity focuses on the family and their need to be prepared. Koelemay said that she would be distributing information regarding the event, at city posting sites. Those completing the event will receive a water bottle and certificate of completion. Meeting Schedule Koelemay reported that the Emergency Preparedness Committee will not be holding their regular meeting in August, but instead participating in Medina Days. The next meeting will be held on Wednesday, September 1 btn The meeting was adjourned at 7:42 p.m. Minutes taken by: Kri Finnigan Emergency Preparedness Coordinator Emergency Preparedness Committee Minutes 2 Page 43 MEDINA PARK BOARD REGULAR MEETING MINUTES Medina City Hall Council Chambers June 21, 2010, 6:00 pm CALL TO ORDER Matt Kochel called the June 21, 2010 Medina Park Board meeting to order at 6:06 pm. ROLL CALL Members Present: Gabriele Dickmann, Marelaine Dykes, Susan Flagg, Matt Kochel, and Laura Weingaertner Members Absent: Susan Greenberg (excused), and Ross Mickel (excused) City Staff Present: Joe Willis, Public Works Director; and Rachel Baker, City Clerk ANNOUNCEMENTS Willis announced swim dock at Medina Beach Park will be re -anchored before 2010 summer lifeguard season begins. Kochel announced 2010 Medina Days event and donation information will be included in next edition of city newsletter and a postcard containing similar details has been mailed to community members. APPROVAL OF PARK BOARD MINUTES MOTION WEINGAERTNER AND SECOND FLAGG TO APPROVE MAY 17, 2010 PARK BOARD MEETING MINUTES. MOTION CARRIED 5-0 AT 6:11 PM. AUDIENCE PARTICIPATION No audience present. PARK REPORTS Weingaertner noted new dog mitt container has been installed at Viewpoint Park and added she saw graffiti on lower waste container. She requested of Willis that lifeguards rake sand at Medina Beach Park, and had nothing to report for Medina Park. Dickmann reported that besides graffiti, there was nothing else to report for Viewpoint Park. She said she noticed Five Corners in Medina Park needs weeding and suggested the park board host a work party. Board members settled on Saturday, July 17 at 9:00 am for a work party and Dickmann conveyed she would create an article for inclusion in the city newsletter. Page 44 Dykes said Medina Park looked great and had no updates. Flagg reported on Indian Trail and Fairweather Nature Preserve and expressed weedy areas on Trail have improved. Kochel stated grass has grown around the dedication plaque in Medina Park and Lake Lane needs mowing. OTHER BUSINESS Blue Heron Camera Update (6:19 pm) Weingaertner had no new information to present. Park Board Comprehensive Plan Update (6:21 pm) Willis summarized goals and needs for plan and responded to board member inquiries. Board elected to hold a field trip during its July meeting to begin inventory. City Hall Construction Update (6:30 pm) Willis reported project remains on schedule and agreements for temporary facilities remain under negotiations. NEW BUSINESS Medina Days 2010 (6:32 pm) Kochel provided updated Medina Days event schedule. Willis conveyed he would notify Kochel if any special event permits would be required. Weingaertner inquired about supplies for block parties, including signage, portable toilets, and garbage cans. Willis said he would follow up with quantity of supplies provided previously. August 16, 2010 Park Board Meeting (6:44 pm) MOTION DICKMANN AND SECOND KOCHEL TO CANCEL AUGUST PARK BOARD MEETING. MOTION CARRIED 5-0 AT 6:44 PM. NEXT MEETING DATE Schedule for July 19, 2010 Park Board Meeting (6:45 pm) The park board will meet at various city parks during its July meeting for the purpose of collecting information for a comprehensive plan update. The estimated visitation schedule will be as follows: City Council Minutes June 14, 2010 Page 2 Page 45 5:00 to 5:15 pm: Fairweather Nature Preserve 5:20 to 5:30 pm: Lake Lane 5:35 to 6:00 pm: Medina Beach Park 6:05 to 6:20 pm: Viewpoint Park 6:25 to 7:00 pm: Medina Park ADJOURNMENT MOTION DYKES AND SECOND KOCHEL TO ADJOURN THE JUNE 21, 2010 MEDINA PARK BOARD MEETING, AND MOTION CARRIED 5-0 AT 6:55 PM. The June 21, 2010 Medina Park Board meeting adjourned at 6:55 pm. The Medina Park Board will hold its next regular meeting on Monday, July 19, 2010, at 5:00 pm. Respectfully Submitted, Rachel Baker City Clerk City Council Minutes June 14, 2010 Page 3 Page 46 CITY OF MEDINA Planning Commission Meeting August 24, 2010 Medina City Hall Council Chambers 6:00 p.m. 501 Evergreen Point Road CALL TO ORDER The Planning Commission meeting of August 24, 2010, was called to order at 6:03 pm by Chair O'Brien. ROLL CALL Present: Judie O'Brien, Molly Goudy (left at 6:49 PM), David Lee, Peter May, Heija Nunn (left at 7:00 PM), Jeff Price (arrived at 6:07 PM) Absent: Ching -Pi Wang (excused) Staff Present: Robert Grumbach, Development Services Director Donna Goodman, Development Services Coordinator ANNOUNCEMENTS (6:03 pm) Grumbach made the following announcements: • The Council will hold a special session on the preliminary budget on September 7cn • The Council will hold a public hearing on the proposed wireless ordinance on September 13th. • The Council indicated that they would be in favor of a Comprehensive Plan amendment this year. A draft will be presented to them at their next meeting. APPROVAL OF MINUTES MOTION GOUDY / SECOND MAY TO APPROVE JULY 27, 2010, MEETING MINUTES AS SUBMITTED. MOTION APPROVED 5-0 (6:05 PM) AUDIENCE PARTICIPATION (6:06 PM) Richard Wilson, an attorney from Seattle, representing Jeff & Susan Brotman at 7917 Overlake Dr. W., addressed the topic of accessory uses. Wilson explained the Brotmans' situation regarding their desire to build a greenhouse and small parking area on the lot adjoining the property their house is on. The residence on the adjoining lot was previously demolished and the interpretation of the city is that an accessory building cannot be constructed if there is no residence. They would like to see the code changed to allow for this and would be amenable to a condition of approval that would require a covenant for the accessory structures to be removed prior to sale of the property. Mr. Wilson acknowledged that the Brotmans could do a lot consolidation that would solve their problem, but that they Page 47 Planning Commission Minutes Page 1 August 24, 2010 wanted to keep the two lots separate for possible sale in the future without having to go through the separation process later. Grumbach explained that a formal interpretation of the code had been requested by the Brotmans and had been issued by the city. The interpretation was upheld by the hearing examiner. Grumbach explained that this issue would be included in the discussion when the commission discusses Item F2 on the agenda, Comprehensive Zoning Code Update. Chair O'Brien suggested the possibility of moving this item forward to address the issue more quickly for the Brotmans. May pointed out that they could not prejudge the outcome since they had not yet had the discussion on this and it was decided that the work plan in place should determine the commission's priorities. OTHER BUSINESS 1) Comprehensive Zoning Code Update — Draft Updated Nonconforming Regulations (6:16 Pll,4) Grumbach provided background on the draft regulations. He explained that historically pre -alteration valuation has been used as the threshold for maintaining nonconformities and determining abandonment of nonconformity. However, this creates challenges because it penalizes homeowners who use more expensive materials in their projects and it applies to interior remodeling even when the outside of the structure isn't changed. Grumbach noted previous discussions with the Planning Commission and City Council and that the feedback was that property owners should not be forced to tear down their house if they are doing interior renovations only. Grumbach explained that the draft regulations propose using a different method for single-family homes that would allow applicants to remodel without concern for pre - alteration valuation. The technique would be based on removing a certain percentage of the building's framing rather than a valuation threshold. For structures other than residences, such as docks, he is proposing maintaining a valuation threshold, but using replacement costs rather than the pre -alteration valuation, which is easier to determine. Charlie Kling, attorney representing resident Charles Simonyi, addressed the commission and explained that this is the problem that his client is experiencing. His client desires to remodel and update the interior of his residence, which was granted several variances when it was constructed in the early 90's. Kling stated that he was in favor of the new regulations but noted areas of concern that he felt could be improved. Discussion followed on types of existing nonconformities related to uses, structures and lots; the delineation of time for abandonment of nonconformities, maintaining vs. eliminating the non -conformities in the city, adding language to encourage homeowners to maintain and remodel existing structures, and adding language regarding the purpose of the regulations. Also considered were the number of nonconforming lots in the city, variances, and unlawful structures. Page 48 Planning Commission Minutes Page 2 August 24, 2010 The consensus was to direct Grumbach to continue working on the draft regulations, clarifying the language regarding the purpose as well as adding examples, and the item was continued for discussion at the next meeting. 2) Comprehensive Zoning Code Update — Draft Introduction and administrative general provisions land use general provisions zoning classifications use regulations, lot development standards, bulk standards (7.14 PAf) This item was postponed to the next meeting. ADJOURNMENT MOTION MAY / SECOND PRICE TO ADJOURN AUGUST 24, 2010 PLANNING COMMISSION MEETING. MOTION APPROVED 4-0 7;15 PM The next Planning Commission meeting will be held on Tuesday, September 28, 2010, at 6:00 pm. Minutes taken by: Donna Goodman Development Services Coordinator Page 49 Planning Commission Minutes Page 3 August 24, 2010 Medina City Council Regular Meeting ITEM PH-1 Monday, October 11, 2010 AGENDA BILL Subject: ATC Outdoor DAS Franchise Agreement Category: ❑ Consent ❑ Ordinance ® Public Hearing 9 ❑ City Council Business ❑ Resolution ❑ Other -Discussion Prepared: Robert Grumbach, Development Services Director Summary: The City Attorney and staff have been working with ATC Outdoor DAS to negotiate a franchise agreement to allow installment of a Distributed Antenna System within the City's rights -of -way. Highlights of the terms of the agreement worked out to date include: • Term: 5 or 10 or more years depending upon Council decision • Franchise Area: Limited in location to need and design • Franchise Fees: This is unresolved, but is a critical concern for all wireless carriers. However, all parties are working cooperatively towards an equitable resolution. • City Code: Incorporates provisions under City code providing for protection of the citizens and the City: indemnification; insurance, compliance with current and future right of way standards including permitting and warranties, and compliance with other code provisions. • Grant: authorizes limited use of the right of way for telecommunications purposes (will allow installation of distributed antenna system). • Remedies: Includes right of revocation in limited circumstances; provides for liquidated damages; includes the right to seek injunctive and other equitable relief While the franchise agreement is not 100 percent complete, the parameters of the agreement have been agreed too. The City's procedural regulations, (MMC 19.06.030) requires for the City Council to conduct a public hearing on the franchise agreement at least one regularly scheduled meeting before they take action on the agreement. There are still some specific details being worked out, a final franchise agreement will be ready and brought before the City Council at their regularly scheduled November 8 meeting. Attachment(s): 1. Preliminary ATC Franchise Agreement Budget/Fiscal Impact__ To be determined. Staff Recommendation: Not applicable, hearin City Manager (� ~� Proposed Council Motion: None, receiving_ public testimony only. Page 50 ITEM PH-1 DRAFT CITY OF MEDINA, WASHINGTON ORDINANCE NO. AN ORDINANCE OF THE CITY I OF MEDINA, WASHINGTON, GRANTING A ,I ONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE' 40 CONSTRUCT AND OPERATE A DISTRIBUTED" ANTENNA SYSTEM; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE WHEREAS the Right -of -Way within the City belong to the public and are built and maintained at public expense for the use of'the genes public, the primary purpose of which is public travel, and must :ie managed and coriIled consistent with that intent, and WHEREAS ATC Outdoor DAS, LLC ("ATC"), has made application to the City of Medina for a telcoommunications franchise to construct, install, maintain, repair and operate a Distributed Antenna System to 'provide telecommunications services using the Right -of -Way, and WHEREAS, ATC represents that .it desires to install and operate telecommunications facilities within the meaning of Medina Municipal Code Section 19.02:020 within Medina, and, WHEREAS, based on representations and information provided by ATC, and in response to -its request for the grant of a franchise, the City Council has determined that the grant of a nonexclusive franchise, on the terms and conditions herein and subject to applicable law, are consistent"with the public interest; and WHEREAS, the Cit'is authorized by applicable law to grant such a nonexclusive franchises within the boundaries of the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA, WASHINGTON, DO ORDAIN AS FOLLOWS: Table of Contents. Note: Update table of contents before finalizing draft. Article 1 Definitions ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 1 Page 51 Article 2 Franchise Grant 2.1 Right -of -Way Use Authorized 2.2 Authorized Services 2.3 No rights shall pass to Franchisee by i=lication 2.4 Interest in the Ri t-of-Way 2.5 Condition of Franchise Area 2.6 Franchise Nonexclusive 2.7 Transfer 2.8 Street Vacation 2.9 Reservation of City Use of Right -of -Way 2.10 Franchise Fee LE 3. COMPLIANCE WITH LAWS/ORDER OF 3.1 Compliance with Laws 3.2 Police Powers 3.3 Alteration of Material Terms and Conditions 3.4 Reservation of Rights/Wavier 3.5 Subsequent Action 3.6 Change in Form ofGovezent 3.7 Order of Precedence 4.1 4.2 tir�r nkicvg vi r�v����.aii�c 4.5 Effedt pf Expiration/Termination ARTICLE.5. PROTECTION OF THE CITY AND PUBLIC 5.1 Limitation ofLability 5.2 I✓nvirpnmen al liability- Attached Exhibit C 5.3 Insurance R.,uirements - Attached Exhibit D 5.4 Financiai Security - Attached Exhibit E 5.5 Parental Guarantee - Attached Exhibit F 5.6 Contractors/Subcontractors - Attached Exhibit G 5.7 Liens 5.8 Financial Conditions ARTICLE 6. ENFORCEMENT AND REMEDIES. 6.1 Dispute Avoidance/Mediation 6.2 Remedies ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 2 ITEM PH-1 Page 52 6.3 Right to Cure Breach 6.4 Material Breach 6.5 Termination/Revocation 6.6 Assessment of Liquidated Damages 6.7 Receivership ARTICLE 7. GENERAL CONDITIONS UPON USE OF RIGHT-OF-WAY 7.1 Permits 7.2 Submission, Approval of Design Submittal 7.3 Compliance with Standards/Codes 7.4 Conditions Precedent to Work 7.5 Work in the Right -of -Way 7.6 Alterations 7.7 General Conditions 7.8 Telecommunications Facility Relocation a 7.9 Movement of Telecommunica�fins Facilitif 7.10 Movement of Telecommunications FacilitiE 7.11 Record of Installatians 7.12 Restoration of Right of Way, Public anti 7.13 Approvals 7.14 Abandonment of Telecommunications Fa( 6.13 Notice 8.14 Survival of Terms 8.15 Force Mai eure 8.16 Attorneys' Fees 8.17 Venue/Choice of Law 8.18 Publication RYNIRITR ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 3 Page 53 A. Form of Transfer Agreement B. Form of Acceptance of Franchise C. Environmental Indemnity D. Insurance Requirements E. Financial Security F. Parental Guarantee G. Contractor/Subcontractor Insurance Requirements ARTICLE 1. DEFINITIONS For the purposes of this Franchise and the terms, phrases, words and their derivations where herein. Words not defined herein shall have the Municipal Code. Words not defined herein or it shall have the meaning given in Chapter 17.90 of defined herein or in Title 19 or Chapter 17.90, of t same meaning given pursuant to such federal or to and regulate the services provided by the Franc be given their common and ordirw -meaning. words used in the present tense include the futurf and words in the singular include the plural. The merely directory. References to governmental e to those entities or their successors in authority. or rule referred to herein be renumbered, then t renumbered nrovisica , N ITEM PH-1 attached hereto, the following shall have the meanings given ven •in Title 19 of the Medina Title 19 of the Medina Municipal Code, the Medina Municipal Code. Words not Medina Municipal Code, shall have the statute rules, or re ns that apply gee;; Wards not otherwise defined. shall inconsistent with the context, the plural include the singular, [" is always mandatory and not -ther.persons or entities) refer provisions of law, regulation v shall be read to refer to the keep, observe, or perform any of its reconstruct, install, reinstall, align, realign, locate, relocate, adjust, affix, attach remove, or support. "Direct Costs" shall mean and include all costs and expenses incurred by the City directly related to a.particulax activity or activities set forth in this Franchise, including by way of example: i. All costs and expenses of materials, equipment, supplies, utilities, consumables, goods and other items used or incorporated in connection with and in furtherance of the activity or activities set forth in this Franchise and any taxes, insurance, and interest expenses related thereto, including costs for crews and equipment; ii. All costs and expenses of labor inclusive of payroll benefits, non- productive time and overhead for each of the labor classifications of the employees performing work for the activity or activities set forth in this Franchise and determined in accordance with the City's ordinary governmental accounting procedures; and, ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 4 Page 54 ITEM PH-1 iii. All costs and expenses to the city for any work by consultants or contractors to the extent performing work for a particular activity or activities set forth in this Franchise, including by way of example and not limitation, engineering and legal services. "Dispute" shall mean a question or controversy that arises between the Parties concerning the observance, performance, interpretation or implementation of any of the terms, provisions, or conditions contained in this Franchise or the rights or obligations of either Party under this Franchise. "DAS" or "Distributed Antenna System" means 4" Network comprised of small, spatially separated, low -power antennas referred to as, ``nodes", connected to a "central hub" by "fiber optic cable" or other transport medium.' "Effective Date" shall mean and refer tti that term as it is defined at Section 4.3 herein. "Emergency" shall, in addition to tl 19.02.020, mean and refer to a sudden significantly disrupts or interrupts ibe operati Right -of -Way and Franchisee's ability to cont is not taken. code, rule, ordin any way to the limitation, the leaning given pursuant -;to MMC Ch. £ition. or set of circumkances that, f` Telecommunications Facilities in the to orovi e services if immediate action Viral; estate or local statute, regulation, injuncti&'or common law pertaining in or the environment, including without Recovery Act, the Comprehensive Gbility Act, the Toxic Substances Control "Franchisee" shall mean ATC Outdoor DAS, LLC, and any of its Affiliates. "Fr"anchise Ordinance" shall mean this Ordinance setting forth the terms and conditions upon which the Franchisee shall be granted a Franchise. mean the area identified in Exhibit A. "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and any element, compound, mixture, solution, particle, or substance, which presents danger or potential danger for damage or injury to health, welfare, or to the environment, including, but not limited to: those substances which are inherently or potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic; those substances which have been recognized as dangerous or potentially dangerous to health, welfare, or to the environment by any federal, municipal, state, City, or other governmental or quasi -governmental authority, and/or any department or agency thereof, ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 5 Page 55 ITEM PH-1 those substances which use, or have its a component thereof or therein, asbestos or lead -based paint; and petroleum oil and any of its fractions. "Law(s)" shall mean all present and future applicable laws, ordinances, rules, regulations, resolutions, permits, environmental standards, orders, decrees and requirements of all federal, state, City and municipal governments, the departments, bureaus or commissions thereof, government authorities, boards or officers, any national or local board of fire underwriters, or any other governmental body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Telecommunications Facilities, including the City acting in,its governmental capacity. References to Laws shall be interpreted broadly to cover government actions, however nominated, and include applicable laws, ordinancesand regulations now in force or hereinafter enacted or amended; provided that, nothing how shall operate as a waiver of Franchisee's right to contest the validity of such laws or the'`application of such Laws to Franchisee. "Legal action" shall mean filing a I "MMC" shall mean and "Noticed Party" shall "Party(ies)" provided that, it parks, and other City in its goverr "Public Wor s City or, his or her design public works director or Chapter 19.12 that Telecommunication pursuant to the Me( of -Way including a to the either the City t or invoking the right to Arbitration. Code. that it is in Breach. both. ie that meaning given=pursuant to MMC Ch. 19.02; railroad rights -of -way, airports, harbor areas, buildings, ilities or property owned, maintained or leased by the ftary capacity or as an operator of a utility. ctor" means and `refers to the Public Works Director for the or such officer or person who has been assigned the duties of or her designee. means a construction permit issued pursuant to MMC specific requirements and conditions for Work to Construct ,es within the Right -of -Way and any other permit required iicipal Code to perform the proposed work within the Right - permit, street cut permit, or clearing and grading permit. "Remedy", "Remediate" and "Remedial Action" shall have the same meaning as these are given under the Model Toxics Control Act (Chapter 70.105D RCW) and its implementing regulations at Chapter 173-340 WAC. "Telecommunications Facilities" shall have the same meaning given pursuant MMC Ch 19.02, and by way of further clarification, shall mean and include any part or all of the facilities, equipment and appurtenances of Franchisee, whether underground or ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 6 Page 56 ITEM PH-1 overhead, located within the Right -of -Way as part of the Franchisee's Distributed Antenna System, including by way of example and not limitation, radios, amplifiers, optical converters, multiplexers, antennas, nodes, innerducts, pedestals, boxes, cabinets, coax cable trays, primary and auxiliary power supplies, power meters, support structures, foundations, mounting hardware, cases, pipes, lines, fiber, equipment, equipment cabinets and shelters, vaults, conductors, poles, carriers, drains, vents, guy wires, encasements, sleeves, valves, wires, supports, towers, anchors, transmitters, receivers, and signage. "Standards" shall mean those standards and codes set forth in Section 7.4 of this Franchise. "Telecommunications" is the transmission of info oration by wire, radio, optical cable, electromagnetic, or other similar means. As used in:this definition, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. "Transfer" shall mean any transaction in which all or''1-`;a portion of the Telecommunications Facilities are sold, leased or. assiwW-(except a saferor transfer that results in removal of a particular portion of the Telecommunications Facilities from the Right -of -Way); or the rights and/rir obligations held' by the Franchisee under the Franchise are transferred, sold, assigned; , or leased, J ,whole or in part, directly or indirectly, to another Person. A transfer of control of ark";operator shall not constitute a transfer as long as the same person continues to Mold the Ftabtchise both before and after the transfer of cono& Nithstanding,,,the foregoing, an agreement with a third parry Teleeommunicatitkng service provider to utilize the Telei%oinmunications Facilities shall not constitute a Traver under this Franchiso7 fork" shall mean ahy and, all activities of the Franchisee, or its officers, employees, agents,, contractors, subcontractors, volunteers, invitees, or within the light -of -Way to Construct the Telecommunications Facilities. 2.1 ht-of-Way, Ilse Authorized. Subject to the terms and conditions of this Franchise, the City hereby grants to Franchisee a nonexclusive Franchise authorizing the Franchisee to Construct and;operate Telecommunications Facilities in, along, among, upon, across, above, over, and under the Right -of -Ways located within the Franchise Area. Further, this Franchise incorporates by reference the provisions of MMC Title 19 as in effect on the Effective Date of this Franchise, a copy of which is attached hereto as Exhibit `B"; provided that, except as provided in Section 3.2 of this Franchise, in the case of a conflict between this Franchise and any term or provision in Exhibit `B" or any future term or provision of the Medina Municipal Code, the conflict shall be resolved as provided in Exhibit "B" (see e.g., MMC 19.06.040, MMC 19.10.360). . 2.2 Authorized Services. The grant given herein expressly authorizes Franchisee to Construct, install, maintain, repair and operate a Distributed Antenna System to ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 7 Page 57 ITEM PH-1 provide Telecommunications Services. This authorization is limited and is not intended nor shall it be construed as granting Franchisee or any other Person the right, duty or privilege to use its Telecommunications Facilities or the Right -of -Way to provide services not specifically authorized therein. This Franchise shall not be interpreted to prevent the City from lawfully imposing additional conditions, including additional compensation conditions for use of the Right -of -Way, should Franchisee provide service other than Telecommunications Service. Specifically, this grant does not include the authorization to provide Cable Service. However, this Franchise shall not be read as a concession by the Franchisee that it needs authorization to provide any services not otherwise authorized herein. 2.3 No rights shall pass to Franchisee by ii R&Ation. No rights shall pass to the Franchisee by implication. Without limiting the foregoing. and by way of example, this Franchise shall not include or be a substitute for: 2.3.1 Any other authoriza000- required for the priviiege of transacting and carrying on a business within the City that may be lawfully required by ,the Laws of the City; 2.3.2 Any agree Way users in connection with including, by way of example and 2 333. Any any other property or infr, specifically granted by, this devices on poles, light: Stan 2.3.4 code and way of example and not limitation, a t or authorization required by the City for Right-of- rati on or in =light -of -Way or public property limitation¢ a,utility permit; or leases, easements or, otheragreements for occupying of the City, or other Persons to which access is not including; without limitation, agreements for placing onduits, in ;vaults, in or on pipelines, or in or on other or other authorizations that may be required under the regulations of the City for the construction of in a particular zoning district in the City, including by conditional use permit or a variance. 2.4 Interest in the' Right -of -Way. This Franchise shall not operate or be construed to convey,title, equitable or legal, in the Right -of -Way to the Franchisee. No reference herein to a Right -of -Way shall be deemed to be a representation or guarantee by the City that its interest, or other right to control the use of such Right -of -Way, is sufficient to grant its use for such purposes. This Franchise shall be deemed to grant no more than those rights which the City may have the undisputed right and power to give. The grant given herein does not confer rights other than as expressly provided in the grant hereof and is subject to the limitations in applicable Law. Such right may not be subdivided or subleased to a person other than the Franchisee. Franchisee acknowledges that, where City has an ownership interest in a Franchise Area, that ownership interest may be a determinable fee, a public right of way ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 8 Page 58 ITEM PH-1 dedication, or a right of way easement, which may terminate when City either: (i) ceases to use that Right -of -Way for Right -of -Way purposes; or (ii) uses such Right -of -Way for purposes found to be inconsistent with use of the Right -of -Way for Right -of -Way purposes, and that in such circumstances, City's right to franchise or grant the use of any such Right -of -Way, or rights under any franchise of any such Right -of -Way, may be subject to termination as of the date the circumstances set forth in either (i) or (ii) above (unless Franchisee improves the quality of title to the applicable Franchise Area, or acquiring additional property interests from other Persons). Franchisee also acknowledges that, where Ci ownership rights may terminate for other reasons, such: further acknowledges that Franchisee's rights under .th Area are subject and subordinate to all outstanding rig Right -of -Way, and any easements, other I agreements in effect on or before the Effecti no more right, title and interest in any Right-- Way at the time of grant, and Franchisee h cost, loss, damage or expense in connection legal title or other authority to convey the ri€ Franchisee or Franchisee's cori� by interest in the Franchise Area, City ' shall a; Contractors for any costs, losses or damages 4s ownership rights, those street vacation. Franchisee ,nchise as to any Franchise id encumbrances on City's ..ehisc Agreements, licenses, permits or date. City therefore grants to Franchisee Vay than the City holds in such Right-of- i releases City from anr.;and all liability, th any claims that City Iicked sufficient descrjj herein. In case of,eviction of )ne owning or claiming title to, or any be liable ,to Franchisee or Franchisee's CITY DOES. h1OT. WARRANT ITS TITLE OR. -PROPERTY INTEREST IN OR TO ANY FRANCHISE AREA NOR UNDERTAKE td- DEFEND FRANCHISEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. 215 Cgndi�tion of Franchise Area.,, Franchisee has inspected or will inspect Franchise Area, and Bitters upon each such Franchise Area with knowledge of its physical condition and the danger inherenf in operations conducted in, on or near any Franchise Area. FRANCHISEE ACCEPTS TIDE, FRANCHISE AREA IN AN "AS -IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS AND IS NOT RELYINGON ANY' REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM THE CITY AS TO ANY MATTERS CONCERNING 'T'HE FRANCHISE AREA, including, but not limited to the physical condition of the Franchise Area; zoning status; presence and location of existing utilities; operating history; compliance by the Franchise Area with Environmental Laws or other Laws and other requirements applicable to the Franchise Area; the presence of any Hazardous Substances or wetlands, asbestos, or other environmental conditions in, on, under, or in proximity to the Franchise Area; the condition or existence of any of the above ground or underground structures or improvements, including tanks and transformers in, on or under the Franchise Area; the condition of title to the Franchise Area, and the leases, easements, Franchises, orders, licensees, or other agreements, affecting the Franchise Area (collectively, the "Condition of the Franchise Area"). ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 9 Page 59 ITEM PH-1 Franchisee represents and warrants to the City that neither the Franchisee nor its contractors or subcontractors have relied and will not rely on, and the City is not liable for or bound by, any warranties, guaranties, statements, representations or information pertaining to the Condition of the Franchise Area or relating thereto made or furnished by the City, or any agent representing or purporting to represent the City, to whomever made or given, directly or indirectly, orally or in writing. CITY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF THE FRANCHISE AREA, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE RIGHT-OF-WAY, OR THE CONFORMITY OF ANY PART OF THk . RIGHT-OF-WAY TO ITS INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO FRANCHISEE OR ANY OF FRANCHISEE'S CONTRACTORS THE DESIGN, CONDITION, QUALITY, FITNESS FOR ANY PARTICULAR PURPf3 WAY PRESENT ON OR CONSTITUTINC CONFORMITY OF ANY SUCH PROPERTY 2.6 Franchise Nonexclusive. This to all prior rights, interests, easements, permit any other Person prior to the Effective Date c the purposes set forth in such authorizations, same for any purpose it deems fit, including si Further, except as oth&W!se'provided herein grant authorization to use the; Right-of-V interfere with Franchisee's authority under SAFETY, MERCI sE OF ANY PAkt ANY FRANCHIS TO ITS INTENDED S RELATING TO NTABILITY OR THE RIGHT -OF - AREA, OR THE ranchise,shall be nonexclusive, and subject franc hi or licenses granted by the City to this Franchise to use the Right -of -Way for d subject try the right of the City to use the 44r purposes lowed Franchisee hereunder. r public eritities,'tlie City may at any time r any pure that does not unreasonably 2—.7 Transfer. In-addition.to the requirements set forth in MMC 19.10.300, no Transfer may approved"by'the City unless Franchisee has delivered to the City the transferee's written- ommitment, in substantially the form of the agreements attached hereto Exhibits "C" and "C-1'%,that transferee(s) shall thereafter be responsible for all obligations of Franchisee with respect to the Franchise and guaranteeing performance under the terns and conditi€nrts of the Franchise and that transferee(s) will be bound by all the conditions of the Franchise and will assume all the obligations of its predecessor. Such a written commitment,and approval of the Transfer shall relieve the Franchisee of any further obligatirs underthe Franchise, including any obligations not fulfilled by Franchisee's transferee, provided that, the Transfer shall not in any respect relieve the Franchisee, or any of its successors in interest, of responsibility for acts or omissions, known or unknown, or the consequences thereof, which acts or omissions occur prior to the time of the Transfer. It is further provided that, this Franchise may not be Transferred without the transferee filing or establishing with the City the insurance certificates, security fund and performance bond as required pursuant to this Franchise. Notwithstanding the foregoing, notice to the City shall not be required for a mortgage, hypothecation or an assignment of Franchisee's interest in the Franchise in order to secure indebtedness. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 10 Page 60 ITEM PH-1 Nothwithstanding any provisions in MMC 19.10.300 to the contrary, Franchisee may, without the prior written notice to and consent of the City: (i) lease the Telecommunications Facilities, or any portion thereof, to another Person; (ii) grant an Indefeasible Right of User Interest in the Telecommunications Facilities, or any portion thereof, to another Person; or (iii) offer or provide capacity or bandwidth in its Telecommunications Facilities to another Person; provided that, Franchisee at all times retains exclusive control over it Telecommunications Facilities and remains responsible for Constructing its Telecommunications Facilities pursuant to the terms and conditions of this Franchise, and provided further that, Franchisee may:grant no rights to any such Person that are greater than any rights Franchisee has puaranant to this Franchise; such Persons shall not be construed to be a third -Party beneficiary hereunder; and, no such Person may use the Telecommunications Facilities for;any purpose not authorized herein. 2.8 Street Vacation. If any Franchisee is to be vacated during the to such vacation the Franchisee is granted Facilities in the vacated Right -of -Way, 1 City, remove its Telecommunications Fa repair or reconstruct the Right -of -:'may w] Right -of -Way in the same of --better: Construction of its Telecommunications R 2.9 Resgn. aJLbn'*i prevent the City from coast paving, repairing or - mains; or installing conduit or Right -of -Way or portion thereof used by ia of this Franchise, unless as a condition of he right to continue its Telecommunications •anchisee shall, without delay .,,or expense to ilities from such Right -of -Way# end restore, ;re suchremoval has occurred, and place the condition ''tom existed prior Franchisee's ,thing in this Franchise shall s; grading, changing grade, repairing or removing water �J Comphance with Laws. Except as otherwise provided herein, Franchisee agrees to . oomply with all applicable Laws as now or hereafter in effect; provided that, nothing herein shall operate as a waiver of Franchisee's right to contest the validity of such laws or the application of such Laws to Franchisee. 3.2 Polio' Pow.M. Franchisee acknowledges that its rights hereunder are subject to those powers ekpressly reserved by the City and further are subject to the police powers of the City to adopt and enforce ordinances necessary to protect the health, safety and welfare of the public. Such powers include but are not limited to, the right to adopt and enforce applicable zoning, building, permitting and safety ordinances and regulations, the right to adopt and enforce ordinances and regulations relating to equal employment opportunities, and the right to adopt and enforce ordinances and regulations governing work performed in the Right -of -Way. However, this Section 3.2 shall not be read or interpreted as a waiver of Franchisee's right to contest the validity of such ordinances or the application of such ordinances to Franchisee. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 11 Page 61 ITEM PH-1 The parties acknowledge and agree that any Regulatory Permits for the Construction of Facilities shall be subject to the laws in effect at the time Franchisee submits a complete application for such permit. Following completion of the Construction authorized by such permit, the parties agree that, if the Laws are thereafter modified such that an existing Facility becomes non -conforming, such Facilities shall be considered under the non -conforming use and structures provisions of the Medina Municipal Code (MMC Ch. 17.60). The parties further acknowledge and agree that, any time Franchisee is doing work in the Right -of -Way, Franchisee shall comply with the applicable Medina right-of-way construction standards in effect at the time Franchisee is undertaking such work in the Medina Right -of -Way. 3.3 Alteration of Material Terms ai preemption, the material rights, benefits, o Franchise may not be unilaterally altered by 1 any ordinance, regulation, resolution or other er exercise of the City's police power. In the ev( by the City pursuant to this Section, either Part pursuant to Section 3.5. 3.4 Reservation of Rightgn right to administer and enforce the i egt requirements of applicable Law, or to di the extent permitted under Law, to any expressly reserves all°)of its rights, authoi of federal, State or local Laws granting of -Way or the activities of the Franch Franchise shall be deemed to waive the of the this F any City to lM or l ConditioAs. Subject to federal and State igatibs duties as specified in this u City through subsequent amendments to -tment of the City; except within the lawful t of a unilateral alteration to this Franchise may initiate renegotiation of the Franchise The ty shall be vested with the power and Cs of thi'seF-vanchise and the regulations and that power and,right, or any part thereof, to n the sole discretion of the City. The City control ing from any relevant provisions t rights, authority or control over the Right- ;xcept as provided herein, nothing in this vents of the various codes and ordinances Lid or manner of Construction. Nothing in 11ranchisee specifically reserves the right to lution that conflicts with its rights under this 3.5 Subsequent Action. In the event that after this Franchise becomes effective, (a) there is a change in or clarification of the Law which changes, broadens or clarifies the authority or obligations of the City or the Franchisee with respect to any act permitted or authorized under this Franchise, or (b) the State of Washington or any agency thereof or any agtney of the Federal government require Franchisee or the City to act in a manner which is inconsistent with any provisions of this Franchise, or (c) any term, article, section, subsection, paragraph, provision, condition, clause, sentence, or other portion of this Franchise, or its application to any person or circumstance, shall be held to be illegal, invalid or unconstitutional for any reason by any court or agency of competent jurisdiction, or (d) because of a change in circumstances, the City or the Franchisee believe that amendments to this Franchise are necessary or appropriate, then the City and the Franchisee agree to enter into good faith negotiations to amend this Franchise so as to enable the City and Franchisee to address, in a manner reasonably acceptable to the City and Franchisee, such change or other development which formed ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 12 Page 62 ITEM PH-1 the basis for the negotiations. The City and Franchisee recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with Law, the intent, scope and purpose of this Franchise. If the terms of this Franchise are materially altered due to changes in or clarifications of governing Law or due to agency rule making or other action, then the Parties shall negotiate in good faith to reconstitute this Franchise in a way consistent with then -applicable Law in a form that, to the maximum extent possible, is consistent with the original scope, intent and purpose of the City and Franchisee and preserves the benefits bargained for by each Party. 3.6 Change in Form of Government. Any change in the form of government of the City shall not affect the validity of thig Vianeh se. Any governmental unit succeeding the City shall, without the consent of Franchisee; 'succeed to all of the rights and obligations of the City provided in this Franchise. ARTICLE 4. ACCEPTANCE 4.1 Acceptance. Within thirty (30) days after. the passage and approval of this Franchise by the City Council, this hr�nchise shall b6aqc6pted by Franchisee by filing with the City Clerk during regular business hours, or such othet,!person as may be designated by the City, three originals of this Franchise with its original signed and notarized written acceptance of all of the terms, provisions. and conditions of this Franchise in conformance with Exhibit "B", toethef with the following, if regnired herein: 4.1:1 Payment in readily available funds of the administrative costs for issuance of the Franchise in conformance with the requirements of Section 5.8 herein. " 4.122 Submission of proof of financial security in accordance with 5.4 herein. 4.1.3 Payment of the costs of publication of this Franchise Ordinance in rith the reauirements ofSections 5.8 and 8.18 herein. Guarantee, if required, in conformance with the requirements of In the event that the thirtieth day falls on a Saturday, Sunday or legal holiday during which the City is closed for business, the filing date shall fall on the last business day before such Saturday, Sunday or legal holiday. 4.2 Failure to Timely File Acceptance. Except as provided in this Section 4.2 below, the failure of Franchisee to timely file its written acceptance shall be deemed a rejection by Franchisee of this Franchise, and this Franchise shall then be void. In the event that Franchisee timely files its written acceptance but fails to timely comply with the applicable requirements of sections 4.1.1 through 4.1.4, this Franchise shall be voidable in ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 13 Page 63 ITEM PH-1 the sole discretion of the City Manager without further action required by the City Council or the consent of the Franchisee. The Franchise shall be voidable until such time as Franchisee complies with all of the applicable requirements of sections 4.1.1 through 4.1.4. No opportunity to cure or public hearing is required to void the Franchise pursuant to this Section 4.2 by giving written notice of the same to Franchisee. 4.3 Effective Date; Term. 4.3.1 Effective Date. Except as provided pursuant to Section 4.2 of this Franchise, the Effective Date of this Ordinance and franchise shall be 12:01 a.m. on the 31 St day following passage and approval of this Franchise by1,,* City Council. This Franchise and the rights, privileges, and authority granted hereunder:and the contractual relationship established hereby shall take effect and be in force from arid after the Effective Date of this Ordinance for the term hereof 4.3.2 Term. The term of #:his Franchise shall Date and shall continue in full force and effect for a period of sooner terminated, revoked or rendered void. 4.4.1 Accepts and terms and conditions of this Ranch Franchise; ... without any.duress or all of the provisions consulting with coups, wi the omence on the Effective years, unless the Franchisee: abide by all of the lawful legal right to grant this granted pursuant to processes and it will not raise any claim to the that it _enters into this Franchise freely and voluntarily, i, after free and full negotiations, after carefully reviewing ions and terms of this Franchise Agreement, and after 4.4.5 Acknowledges and agrees that; it has carefully read the terms and conditions of this Franchise; it unconditionally accepts all of the terms and conditions of this Franchise; it unconditionally agrees to abide by the same; it has relied upon its own investigation of all relevant facts; it has had the assistance of counsel; it was not induced to accept a Franchise; and, that this Franchise represents the entire agreement between the Franchisee and the City. 4.4.6 Warrants that Franchisee has full right and authority to enter into and accept this Franchisee in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws, or any law, regulation, or agreement by which it is bound or to which it is subject. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 14 Page 64 ITEM PH-1 4.4.7 Warrants that acceptance of this Franchise by Franchisee has been duly authorized by all requisite Board action, that the signatories for Franchisee hereto are authorized to sign the Franchise acceptance, and that the joinder or consent of any other parry, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise. 4.5 Effect of Expiration/Termination. Upon the Franchise without renewal or other authorization, authorized to operate the Telecommunications Facilities shall, to the extent it may lawfully do so, cease opera Facilities. Forthwith thereafter, except as provided,,, provided by ordinance, Franchisee shall: (1) remove' i:tg Right -of -Way and restore the Right -of -Way as required p of -Way restoration standards set forth in Exhibit "B" expiration or termination of Franchisee shall no longer be within the Franchise Area and ti i- of the Telecommunications this Section, or as otherwise Zctures or property from the uruant to the applicable Right- (e g', : 1,9.10.200); (2) sell its Telecommunications Facilities to another entity autt Telecommunications Facilities within the Franchise Area (which upon City approval, to the extent the City may lawful abandon any Telecommunications Facilities in place i �;; notice to the City of Franchisee'S�ihtent to so do. if, "itl receipt of Franchisee's notice of abandonment, the`;C� appearance, or use of the Right-6f' ay woul&;1 Telecommunications Facilities must be removed by the I specified by the City its light of the amount of work to failure by Franchisee properly .to perform such work,` the: days written notice;to Franchisee, perform the work and c costs thereof. set forth in Exhibit "B". ARTICLE 5. 5.1 to operate zde the City) y require its approval; or (3) l e Right-of-W 3i upon written i ninety (90) days of the City's y determines that the safety, be adversely affected, the ranchisee by a date reasonably be performed. In the event of the City may, after thirty (30) yllect the actual and reasonable renewed pursuant to the renewal 5.1.I. Limitation of Liability. Franchisee hereby releases, covenants not to bring suit and agrees to,'indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by Franchisee's employees to which the Franchisee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the Franchisee, its agents, servants, officers, or employees in performing under this Franchise are the proximate cause. The Grantee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person including claims by the Grantee's employees, including ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 15 Page 65 ITEM PH-1 those claims to which Franchisee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of the City's ownership or control of the Rights - of -Way or other public properties, by virtue of Franchisee's exercise of the rights granted herein, or by virtue of the City's permitting the Franchisee's use of the City's Rights -of - Way or other public property, based upon the City's inspection or lack of inspection of work performed by Franchisee, its agents and servants, officers or employees in connection with work authorized on the City's property or property over which the City has control, pursuant to this Franchise, or pursuant to any other permit or approval issued in connection with this Franchise. This covenant of indemnification shall include, but not be limited by this reference, to claims against the City arising as a result of the negligent acts or omissions of Franchisee, its agents, servant ," officers, or employees in barricading, instituting trench safety systems or providinkpther adequate warnings of any excavation, construction, or work in any Rights;-6f Way or other public place in performance of work or services permitted under this Franchise. . 5.1.2. Inspection. Inspect performed by Franchisee at the time of cc for avoidance of any of these covenants of 5.1.3 Comprc extend to claims which are compromised prior to the culr ti or acceptance by t „ City of any work pletion of construction shall not be grounds U nification., 'Is. Said -indemnification obligations shall to a suit and any claims which may be litigation or the, institution of any litigation. 5.1.4. Rgfsal of Tenderof Defense. In the event that Franchisee refuses the tender of defense.in any suit or any claim, said tendei having been made pursuant to the indemnification clauses contained herein.' and said refusal is subsequently determined by a court having jurisdiction (6f such other tribunal that the parties shall agree to decide the matter); to have been a wrorigU zefusat on,. the part of Franchisee, then Franchisee shall pay" all of"thee city's eoirts for defense of the action, including all reasonable expert witness fees and re49 naable attorneys' fees and: the reasonable costs of the City, including reasonable attorneys' fees of recovering under this indemnification clause. 5.1.5 Concurrent Nggl .. eg nce. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Franchisee and the City, its officers, employees and agents, Franchisee's liability hereunder shall be only to the extent of Franchisee's negligence. It is further specifically, -and pressly understood that the indemnification provided herein constitutes Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the Parties. 5.1.6 Survival. The provisions of this Section shall survive the expiration or termination of this Franchise. 5.1.7 Assumption of Risk/Waiver. Notwithstanding any other provisions of this Section, Franchisee assumes the risk of damage to any Telecommunications Facilities located in the Rights -of -Way from activities conducted by the City, its officers, agents, employees, and contractors, except to the extent any such ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 16 Page 66 ITEM PH-1 damage or destruction is caused by or arises from the negligence or any willful or malicious action on the part of the City, its officers, agents, employees, or contractors. Franchise releases and waives any and all claims against the City, its officers, agents, employees, or contractors for damage to or destruction of any Telecommunications Facility caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the Rights -of -Way or other public property subject to this Franchise, except to the extent any such damage or destruction is caused by or arises from the negligence or any willful or malicious action on the part of the City, its officers, agents, employees, or contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought,y under users of Franchisee's Telecommunications Facilities or Service as the result df any interruption of service due to damage or destruction of any Telecommunications Facility caused by or arising out of activities conducted by the City, its officers, agents, employees, ;or contractors, except to the extent any such damage or destruction is; eaused by or arise$ from the negligence or any willful or malicious actions on the part, of the City, its officers, agents, employees, or contractors. 5.2 Environmental subject to review and further 5.3 5.4 review and City acceptance of this Frar Franchisee of Franchisee of the parental guarantee de facto control over the of Franchisee by, such Pe or similar entity, the City the partnership, lixil li See See "D". (Exhibit D is still . (Exhibit E is still under fir, If, the Franchise is wholly owned or is controlled by •equire Franchisee to cause such Person to provide, upon a guarantee by such Person of performance by the ts, duties and obligations herein, in substantially the form ed hereto as Exhibit "G". "Control" shall mean de jure or iisee and does not necessarily imply a majority ownership If Franchisee is a partnership or limited liability company equire a guarantee from the principal partners/members of company or similar entity. 5.5 Contractors/Subcontractors. Franchisee contractors and subcontractors performing Work in the Right -of -Way shall comply with such bond, indemnity and insurance requirements as may be required by City code or regulations, or other applicable Law. If no such requirements are set forth in the City code or regulations, the Franchisee contractors and subcontractors shall comply with the requirements set forth in attached Exhibit "F". 5.6 Liens. In the event that any City property becomes subject to any claims for mechanics', artisans', or materialmen's liens, or other encumbrances chargeable to or ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 17 Page 67 ITEM PH-1 through Franchisee which Franchisee does not contest in good faith, Franchisee shall promptly, and in any event within 30 days, cause such lien claim or encumbrance to be discharged or released of record (by payment, posting of bond, court deposit, or other means), without cost to the City, and shall indemnify the City against all costs and expenses (including attorneys' fees) incurred in discharging and releasing such claim of lien or encumbrance. If any such claim or encumbrance is not so discharged and released, the City may pay or secure the release or discharge thereof at the expense of Franchisee after first giving Franchisee fifteen (15) business days' advance notice of its intention to do so. Nothing herein shall preclude Franchisee's or the City's contest of a claim for lien or other encumbrance chargeable to or through Franchisee or the City, or of a contract or action upon which the same arose. 5.7 Financial Conditions. This language of section 5, 7a is not agreed Ripon. The following represents language under consideration: (5.7.1 Franchise Fee. The parties underuand that, upon the affective Date of this Franchise, RCW 35.21.860 prohibited the imposttizn of a municipal Franchise Fee upon revenues derived from Franchisee Telephone Business Activities; however, the parties dispute the application of this prohibidoM to revenues derived by the Franchisee from its activities within the Public Rights -of Way. The partieg have, for good and valuable consideration the adequacy of which is hereby acknowledged, 4rgreed that for the term of this Franchise, no firanchise- fees shall ba imposedl upon 5-evenues derived by the Franchisee from its activities within the Public Rights -of -Way as auth6i* d pursuant to this Franchise) Or in the alternative (5; .1 Franchise Fee. Co rnencing upon the Effective Date, Franchisee shall,pay to the City quarterly, on or before -the thirtieth (30th) day of each January, April duly, and October; a sume%lual to percent (*%) of Gross Revenues, as defined herein (the "Franchise Fee:.'). Gross Revenue, for purpose of this section, shall mean and include any and all cash, credits property or consideration of any kind or nature that constitute revenue which. is derived directly or indirectly by Franchisee from the operation of the relecommunications System within the City of Medina. 513.2 2 Financial Reports. Each Franchise Fee payment shall be accompanied by a legible financial report consisting at a minimum of Franchisee's Franchise Fee payment worksheet and year-to-date totals worksheet showing the basis for the Franchisee's computation and separately indicating revenues received by the Franchisee within the City from applicable sources of revenue, and such other information directly related to confirming the amount of the Franchisee's Gross Revenues as may be reasonably required by the City. The financial report shall also be provided to the City electronically in Excel format, or another electronic format acceptable to the City. The City shall have the right to require further supporting information for each Franchise Fee payment or in connection with a City audit pursuant ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 18 Page 68 ITEM PH-1 to Section 5.7.1.3 below, and, in that event, Franchisee shall provide such information within fourteen (14) calendar days of receipt of the request, unless extended by mutual agreement of the Parties. The Franchisee shall be responsible for providing the City all records necessary to confirm the accurate payment of Franchise Fees. The Franchisee shall maintain such records for six (6) years. 5.7.1.3 Audit by City. The City shall have the right, upon reasonable notice of no less than five (5) working days, to inspect, examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records (collectively the "Records') of Franchisee pertaining to all revenue derived by Franchisee from the operation of the Telecommunication's -:System in order to verb the accuracy of payments under Section 5.7.1.1. Franchis^ee,'shall fully cooperate in making available its records and otherwise assisting in thus:activities. Any Records that are not available to the City, or its agents conducting tie Audit, withiffiy (50) miles of the City, shall be made available at City Offices, or in: alternative, the F, ranchisee can fund the cost to the City of accessing such Records at another location reasonably agreed to by the Parties. The City shall extend the time for the provision of such Records upon a reasonable showing by Franchisee that such extension i,�-,Justified. In the''ovent that such audit discloses a discrepancy of more than five percent ('✓o) between the fthdncial report submitted by the Franchisee with:a, quarterly pay�� and the actual Gross Revenues collected by the Franchisee that are sub*,t to the Franchise Fees, the Franchisee agrees to pay to the City the costs of such audit; fir o Tided that, ("e City will not be entitled to reimbursement of such Audit costs more than once in any five year period, and (2) the total reimbursement: to the City in anyfve year.period for the Audit costs shall not exceed one hundred and fifty percent (15W) of the amount of the discrepancy. In the event that such audht results in a determination that additional Franchise Fees are due the City, the Franchisee furthe-agrees to pay,, interest as required for late payment on such additional _ franchise; fees eomuted fromthe date on which such additional 5.7;1.4 Nah-waiver. Acceptance of any franchise fee payment by the City shall not be construed as art agreement by the City that the franchise fee paid is in fact the correct amount, nar shall acceptance ofpayment by the City be construed as a release or waiver, of any claim the City may have for further or additional sums payable under the provisions of this Franchise. 5.7J.5 Taxes. Nothing in this section shall limit the Franchisee's obligation to pay applicable local, state, or federal taxes.) Or in the alternative (5.7.1 Franchise Fees. The parties agree that no franchise fee is chargable for this Franchise and, therefore, no franchise fee is required.) 5.7.2 Reimbursement of Direct Costs of Issuance Renewal Amendment and Administration. Franchisee shall reimburse the City for the City's Direct Costs relating ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 19 Page 69 ITEM PH-1 to the issuance, renewal, amendment (if requested by or for the benefit of the Franchisee) and administration of this Franchise. 5.7.3 Reimbursement of Direct Costs of Design Review and Inspection. City approvals and inspections, as provided for in this Franchise, are for the sole purpose of protecting the City's rights as the owner or manager of the road Right -of -Way and are separate and distinct from the approvals and inspections and fees that may be required pursuant to a Regulatory Permit. Therefore, Franchisee shall reimburse to the City, its Direct Costs of approvals and inspections, to the extent that such Direct Costs are not included in the costs for issuance of and compliance with the Regulatory Permit. Approvals and inspection, by way of example and not ;limitation, include review of design documents and inspection for compliance with`, Standards and 100% Design Submittal. 5.7.4 Reimbursement of Franchisee shall reimburse the City for the designing, constructing, installing, repairin` or facility as the result of the actual or Franchisee's Telecommunications Facilitie not be limited to, the Direct Costspf City f engage in any work in the Right -of -Way, Telecommunications Facilities in the Ri construction plans in carder to either Telecommunications Facilities or the routia of -Way so as not `to interfere with Francl request as a condition of payment by Fra specifically identify the Direct Costs and claims reimbursement. A. reasouable', eharj2 -ct Costs incurred bar the City in planning, altering any City infrastructure, structure, posed presence in the t-of-Way of 3u'h costs and expenses shall=include, but onnel and contractors utilized to oversee or the result =Qf the presence of Franchisee's -of-Way, ,axed any time spent reviewing o7nplish the relocation of Franchisee's >r rerouting of any 'public utilities or Right- sTelecommunications Facilities. Upon iisee, all billing will be itemized so as to senses for each project for which the City 3r the actual cost incurred in preparing the 5.7.5 FMchisee'Ttesponsibility for Costs. Except as expressly provided otherwise in this Franchise, any act that Franchisee, its contractors or subcontractors are required to perform under this Franchise shall be performed at their sole cost and expense. 5.7.6 Franchisee Work Performed by the City. Any work performed by the City that Franchisee has failed to perform as required pursuant to this Franchise and which is performed by the City in accordance with the terms of this Franchise, shall be performed at the cost and expense of the Franchisee. Franchisee shall be obligated to pay the Direct Costs to the City of performing such work. 5.7.7 Costs to be Borne by Franchisee. Franchisee shall reimburse the City for all costs of publication of this Franchise, and any notices prior to any public hearing regarding this Franchise, contemporaneous with its acceptance of this Franchise. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 20 Page 70 ITEM PH-1 5.7.8 Taxes and Fees. Nothing contained in this Franchise Agreement shall exempt Franchisee from Franchisee's obligation to pay any utility tax, business tax, or ad valorem property tax, now or hereafter levied against real or personal property within the City, or against any local improvement assessment imposed on Franchisee. Any fees, charges and/or fines provided for in the City Municipal Code or any other City ordinance, and any compensation charged and paid for the Right -of -Way, whether pecuniary or in -kind, are separate from, and additional to, any and all federal, state, local, and City taxes as may be levied, imposed or due from Franchisee. 5.7.9 Itemized Invoice. Upon request and as, a condition of payment by the Franchisee of Direct Costs payable by Franchisee under this Franchise, City shall submit an itemized billing so as to specifically identify, the Direct Costs incurred by the City for each project for which the City claims reimburseT_'n 5.7.10 Time for Pam. All non -contested act Costs shall be due and paid within thirty (30) days of receipt of invoice; provided that; in the event that an itemized invoice is not provided at the time. -of receipt of invoice and: the City receives a request from Franchisee for an itemized invoice within 30, days of receipt. invoice, such amounts shall be due and paid within (30) days ofreceipt4the itemized invoice. 5.7.11 Overdue Pa by Franchisee which shall not be rate of twelve (12%) percent per a payable under this Franchise reof, shall bear interest at a 5 712 Contesting charges. F.ra?tehisee tay; contest all or parts of any Direct Cost within thirty (30) days of receipt of any invoice. The City will investigate Franchisee's contest and_ will make appropriate_ adjustments to the invoice and resubmit the invoice t Franchisee. Frifi6hispe shall pay the Direct Costs as itemized in the resubmitted invoice which shall be due, within thirty (30) days of receipt of the resubmitted invoice. However,;, Franchisee feserves the right to further contest any charges through Legal Action. 5.7.13 Receivables. tither Party hereto may assign any monetary receivables due them under. this Franchise; provided, however, such transfer shall not relieve the assignor of any of its rights or obligations under this Franchise. 6.1 Communication and Discussion. The Parties are fully committed to working with each other throughout the Term of this Franchise and agree to communicate regularly with each other at all times so as to avoid or minimize Disputes. The Parties agree to act in good faith to prevent and resolve potential sources of conflict before they escalate into a Dispute. The Parties each commit to resolving a Dispute in an amicable, professional and expeditious manner. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 21 Page 71 ITEM PH-1 6.2 Breach/Right to Cure Breach. 6.2.1 Notice. Except as provided at Section 6.2.4 herein, if a Parry believes that the other Party is in Breach, such Parry shall give written notice to the Noticed Party stating with reasonable specificity the nature of the alleged Breach. The Noticed Party shall have thirty (30) days, or such lesser or greater time as specified in the notice, from the receipt of such notice to: 6.2.1.1 Respond to the other Parry, contesting that Parry's assertion that a Breach has occurred; or 6.2.1.2 Cure the alleged 6.2.1.3 Notify the other-11 Breach within the time provided in the notice h event the Breach cannot be cured within time pr promptly take all reasonable steps to cure the F and in detail as to the exact steps that will be t� such case, the other Parry may get a meeting to the time provided in the notice is indeed.needed completion schedule and steps are reasonable. 6.2.2,,.., Tfir giving notice shall, take into and scope of the WcA requ allow to continue an unsafe will result in adverse fin - whether delay m lrnpleme breachof contract. 6.2.3 Fail and diligently,pursue cure' Party giving notice and in Sections 6.2.1, 6.2.13 and seek remedies as set forth in contract or in equity... xty that the Noticed, Parry cannot cure the cause of the nature: o£ the Breach. In the vided in the notice, the Noticed Parry shall each and Notify the other`Party in writing :en and,the projected completion date. In letermine whether additional time beyond and whether the Noticed Parry's proposed ire. When speeifying,the time period for cure, the Party nt, the nature, and scop& of the alleged Breach, the nature cure the Breach, whether the Breach has created or will Cition, the extent to which delay in implementing a cure nsequences or other harm to the Party giving notice, and a cure 'will, result in a violation of applicable Law or to Cure. If the Noticed Party fails to promptly commence Breach to completion to the reasonable satisfaction of the cordance with the time to cure, as established pursuant to 2.2, then the party giving such notice shall be entitled to ,ection 6.3 herein or any such other remedies allow at law, 6.2.4 Election. In the event of a Breach that may also constitute grounds for revocation as set forth at Section 6.4.1.1 through 6.4.1.12 herein, the City may, at its election and in lieu of the notice and cure procedures set forth in Section 6.2.1 through 6.2.3, follow the procedures and exercise the rights and remedies as set forth in Section 6.4 herein. 6.3 Remedies. The Parties have the right to seek any and all of the following remedies, singly or in combination, in the event of Breach: ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 22 Page 72 ITEM PH-1 6.3.1 Specific Performance. Each Parry shall be entitled to specific performance of each and every obligation of the other Parry under this Franchise without any requirement to prove or establish that such Party does not have an adequate remedy at law. The Parties hereby waive the requirement of any such proof and acknowledge that either Party would not have an adequate remedy at law for the commission of a Material Breach hereunder. 6.3.2 Injunction. Each Party shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event> of Default and to obtain a judgment or order specifically prohibiting a Material Breaolof this Franchise without, in either case, being required to prove or establish that such Party does not have an adequate remedy at law. The Parties hereby waive the requirement of any such proof and acknowledge that the other Party would not have an adequate remedy at law for the commission of a Material Breach hereunder. 6.3.3 Damages; Equitable Relief. Commence a Leggy Action at law for monetary damages or impose liquidated damages as . set forth beloiw ter seek other equitable relief. 6.4 Revocation. Section 6.4.1.6, b,4.1.8, & 6 4.111 are'stiil under review and subject to further revision. 6.4.1 Cause. This franchise; and all rights granted hereunder to the Franchisee, may be revoked by the City for anyone or more of the following reasons: Franchisee; .1.4 r operation in the city or in the rights -of - grant of authority from an authorization, or operation at an unauthorized location; Unauthorized substantial transfer of control of Unauthorized assignment of the Franchise; 6.4.1.5 Unauthorized sale, assignment or transfer of a Franchisee's Franchise assets, or a substantial interest therein; 6.4.1.6 Misrepresentation by or on behalf of Franchisee in any application or written or oral statement upon which the city relies in making the decision to grant, review or amend the Franchise pursuant to MMC Title 19 or this Franchise; ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 23 Page 73 ITEM PH-1 6.4.1.7 Abandonment of Telecommunications Facilities in the Public Rights -of -Way or upon city property; 6.4.1.8 Failure to relocate or remove Telecommunications Facilities as required in this Franchise; 6.4.1.9 Failure to pay taxes, compensation, fees or costs when and as due the city; 6.4.1.10 Insolvency or bankruptcy,of the Franchisee; or 6.4.1.11 Violation of any 6.4.1.12 Violation of 6.4.2 Notice and Duty to Ct grounds exist for revocation of this Francl notice of the apparent violation or noncc statement of the nature and $eneral facts providing the Franchisee a reasonable,perioi evidence: expeditiously the apparer provide the the matter. .1 Th, tnedy the .2 Th, of provision of MMC Title 19; this Franchise. In the event that the. City believes that the Franchisee shall ,be given written has rebuts fhe alleged ►yidmg a short, and concise tion or nonco np iance, and exceeding 30 days to furnish or is being actively and or or noncompliance; or in the public interest to impose some 6.4.3 Hearin the event that Franchisee fails to provide evidence sfactory to the city as provided in Section 6.4.2 herein, the City shall refer iolation or noncompliance to the City Council. The City Council shall inchisee with. notice and a reasonable opportunity to be heard concerning 6.4.4 Standards for Revocation or Lesser Sanctions. If the City Council determines that Franchisee willfully violated or failed to comply with any of the provisions ofMMC Title 19 or this Franchise, or through willful misconduct or gross negligence failed to heed or comply with any notice given Franchisee by the city under the provisions of MMC Title 19 or this Franchise, then the Franchisee shall, at the election of the City Council, forfeit all rights conferred hereunder and the Franchise may be revoked or annulled by the City Council. The City Council may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies as set forth in Section 6.3 herein. The City Council shall utilize the ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 24 Page 74 ITEM PH-1 following factors in analyzing the nature, circumstances, extent, and gravity of the violation and in making its determination under this section: 6.4.4.1 Whether the misconduct was egregious; 6.4.4.2 Whether substantial harm resulted; 6.4.4.3 Whether the violation was intentional; 6.4.4.4 Whether there is a history. of prior violations of the same or other requirements; 6.4.4.5 Whether there 6.4.4.6 Whether admitted or cured. 6.5 6.5.1 Because it tna City in the event of a Breach of this f damages as a reasonable estimation of those provisions of this Franchise se elects to assess liquidated damages as City's sole and exclusive remedy for shall not exceed atime period one is intended to preclude< the City from 6.5.2 Prior to asps forth in this Franchi cure when ah overall compliance; and luntarily disclosed, difficult to certain or quantify the harm to the hise by Franchise, the Parties agree to liquidated aci 1° economic 6-ses resulting from a Breach of th in Section 6.5.7 To the extent that the City sided in this Franchise, such damages shall be the vaycif damages resulting from such Breach and red eighty (180) days. Nothing in this subsection cisingany other right or remedy with respect to a ;ity stops assessing liquidated damages for such ing any liquidated damages, the City shall follow the that, provide the Franchisee proper notice and a right to 6.5.E With the exception of failure to comply with a stop work order pursuant to Section 7.5.7 -herein, the City shall not assess any liquidated damages if the Franchisee has cured or=commenced to and completes the cure under the enforcement provisions of Article 6 of this Franchise. In the event Franchisee fails to cure, the City may assess liquidated damages and shall inform Franchisee in writing of the assessment. Franchisee shall have thirty (30) days to pay the damages. The City may immediately begin assessing liquidated damages upon issuance of a stop work order in the event that the Franchisee, or its contractors or subcontractors, fails to comply with such stop work order. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 25 Page 75 ITEM PH-1 6.5.4 The first day for which liquidated damages may be assessed, if there has been no cure after the end of the applicable cure period, shall be the day that the Franchisee received the notice of Breach. 6.5.5 Franchisee may challenge in court any assessment of liquidated damages. 6.5.6 The liquidated damages amount may be adjusted by the City every five years from the date of execution of this Franchise to take into account cumulative inflation. 6.5.7 Pursuant to the requirements outlined herein, liquidated damages shall not exceed the following amounts: 6.5.7.1 One hundr dollars ($100.00) . er day for failure to comply with the requirements of the folio ing Sections: 2.2 (Authorized Services); 2.7 (Transfer); 4.5 (Expiration/Termination), 5.3 (Insurance), 5.4 (Fina l Security), 5.5 (Parental Guarantee); and 6.5.7.2 for failure to comply with the re dollars ($1,000) per day for each 6.5.8 ' ` It;is-, not the damages for a Breach of the Fra: resulted in no or minimal negatM result in practical difficulties and, to be derived by the City.. The, . damages for the same violation, 6.5.9 Franchisee damages;, -or (2) held to-;` iolati Franchisee as that term is defined dollars($500) per day for the first two days 7.6.4 (Step Work Order), and one thousand 'ity'sintentic to ghect the Franchisee to liquidated chise where the violAlio was a good faith error that impact to'the City, or where strict performance would ardship to the Franchisee which outweighs the benefit y inay not collect both liquidated damages and actual shall not be: (1) obligated to pay these liquidated on if the noncompliance is "beyond the control" of in Section 8.15 herein. 6.6 R! eg6vershig, ;At the option of the City, subject to applicable law and lawful orders of courts of jurisdiction, this Franchise may be revoked after the appointment of a receiver or trustee to take over and conduct the business of Franchisee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless: 6.6.1 The receivership or trusteeship is timely vacated; or 6.6.2 The receiver or trustee has timely and fully complied with all the terms and provisions of this Franchise, and has remedied all defaults under the Franchise. Additionally, the receiver or trustee shall have executed an agreement duly approved by the court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound by each and every term, provision and limitation of this Franchise. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 26 Page 76 ITEM PH-1 ARTICLE 7. CONDITIONS UPON USE OF RIGHT-OF-WAY Article 7 is still under review and subiect to further revision. 7.1 Permits. 7.1.1 Application. Prior to commencement of Work within the Public Right of Way, Franchisee shall first apply for and secure from the City, or shall already have in place, a fully executed and binding Special Use Permit issued pursuant to Ch. 17.90 MMC; provided that, Franchisee may perform preliminary' site `investigation Work within a proposed Franchise Area pursuant to such authorizatiop, (e.g.; consent to entry, temporary street occupancy permit) as the City and Franchisee may othgrwise agree upon. 7.1.2 Conditional/Spec a condition of applying for a Conditiona have authorization from the City (as the apply for such Conditional/Special use given herein shall, as to the propose( authorization of the City that is nss, intended to and does not operate to wa obtain a Special Use Permit and appli Work within the Franchise Area nor 's consent to or apf is intended solel Variance prior to or state a<aws, ana suoject to ap and,all Work shall be,,'perform at the time an application for City's codes; Jse Permit or Varian). In the event that, as iecial use Permit or a Variance, Franchisee must Tier/manager of the property to .be developed) to mit or a Variance, the general' franchise grant anchis Area;:,constitute any such., consent or for such application. This authorization is not he requireint. for Franchisee to apply for and Regulatory Pei -tits prior to commencement of such consent or authorized be deemed to be action being, pght. This authorization/consent to seek a Conditional/Snecial use Permit or a with its application for a Regulatory Permit. j&Lc s/Codes. Except as may be preempted by federal 3, all Telecommunications Facilities shall conform to compliance with the following "Standards" in effect -,gulatory Permit is complete as specified under the .1.2.1 City Regulations. City Ordinances and regulations adopted by the City Engineer of Public Works Director establishing standards for placement of Telecommunications Facilities in Right -of -Way, including by way of example and not limitation, the specific` 44cation of Telecommunications Facilities in the Right -of -Way. This shall also include any road design standards that the City shall deem necessary to provide adequate protection to the Right -of -Way, its safe operation and maintenance; 7.2.2 Industry Standards. All Telecommunications Facilities shall be durable and Constructed in accordance with good engineering practices and standards promulgated by the government and industry for placement, Construction, design, type of materials and operation of Franchisee Telecommunications Facilities; ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 27 Page 77 ITEM PH-1 Notwithstanding the foregoing, nothing in the Section 7.2 shall be read or interpreted as a waiver of any vested rights Franchisee may have or a waiver of any rights Franchisee may have for a Telecommunications Facility that qualifies as a nonconforming use or structure. 7.3 Conditions Precedent to Work. Except as may be otherwise required by applicable City code, rule, regulation or Standard, Franchisee shall comply with the following as a condition precedent to Work: 7.3.1 RRe ulgjM Permits Required. Except; as otherwise set forth in this Franchise, prior to performing any Work in the Rig44Way requiring a Regulatory Permit, Franchisee shall apply for, and obtain, in ade, such appropriate Regulatory Permits from the City as are required by ordinance',_or rule. Franchisee shall pay all generally applicable and lawful fees for the requisite City Regulatory Permits. 7.3.2 Compliance with Frgpchise. Franchisee ,.shall be in material compliance with the Franchise, including byway of example and not limitation, payment of fees invoiced to Franchisee for City reimbursable costs, -'and expenses ited to review and approval of the Site Specific Permit, proof of 1nsurance and proaf�',of financial security. 7.4 Work in the Ri 7.4.1 Least kterferenm Work in the.Right-of`Way shall be done in a manner that does'not' unnecessarily hinder_nr-obsttuct the, free use of the Right -of -Way or other public property and which causes the l interference with the rights and reasonable convenience of property. owners, businesses= and residents along the Right -of -Way. Franchisee T lecommun o ti kns i ties shaltbe designed, located, and Constructed so as not to impair the use or, operation 6f any street improvements, utilities, and related facilities of the Cif or the City's existing.' lessees, licensees, franchisees, easement beneficiaries or lien holders, without prior written consent of City or the Parties whose improvements are impaired and whose. consent is required pursuant to agreements with the City existing prior to the. Effective Date. Franchisee's Telecommunications Facilities shall be designed, located, and Constructed in such a manner as not to interfere with any planned utilities. For purposes" of this Section, "planned" shall mean utilities which the City or its utility prtiider Mends to construct in the future, which intent is evidenced by the inclusion of said utility project in a the Capital Investment Program Plan, a comprehensive utility plan, a transportation improvement plan, the City's Comprehensive Plan, or other written construction or planning schedule. 7.4.2 Work of Contractors and Subcontractors. Franchisee's contractors and subcontractors performing Work in the Franchise Area shall be licensed and bonded in accordance with the City's and State's applicable regulations and requirements. Any contractors or subcontractors performing Work within the Right -of -Way on behalf of the Franchisee shall be deemed servants and agents of the Franchisee for the purposes of this Franchise and are subject to the same restrictions, limitations and conditions as if the ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 28 Page 78 ITEM PH-1 Work were performed by Franchisee. Franchisee shall be responsible for all Work performed by its contractors and subcontractors and others performing Work at Franchisee's request as if the Work were performed by it, and shall ensure that all such Work is performed in compliance with this Franchise and other applicable Laws, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Franchisee's responsibility to ensure that contractors, subcontractors or other Persons performing work at Franchisee's request are familiar with the requirements of this Franchise and other applicable Laws governing the Work performed by them. 7.4.3 Emergency Permits. In the event,:,that Emergency repairs are necessary, Franchisee shall as possible as practicable under the circumstances notify the City manager and/ or other City management staff of the geed for such repairs. Franchisee may initiate such Emergency repairs, and shall apply for appropriate Regulatory Permits, to the extent necessary, within forty-eight (48) hours after discovery of the Emergency. In the event of an Emergency, a Franchisee may perfarin Emergency Work in the Right -of -Way without first securing a Regulatory Pernvt:for such Emergencyr;Wgrk, provided that: (1) the Franchisee notifies the City in advance.of performing such Emergency Work and the type and location of such Work; (2) the Franchisee applies for a Regulatory Permit on the first business day following commencement o€such,-, ork; and (3) thd�V anchisee, at its sole cost and expense, makes its Work performed lnm the Right -of -Way available for inspection to determine compliance with applicable Laws' and Standards. 7.4.4 Stop Work. If , a stop Medina Municipal o& . Franchisee shall c subcontractors to cease such activity until the is in compliance_ Van unsafe condition is foni other action permitted'tander applicable Law, i repairs and alterations spedified-therein forthw the City, reasonably establishes., The City ha; unsafe` condition if Franchisee fails to do so-. ,ork ,order is issued consistent with the se' and -shall cause its contractors and 4y is rea0pably satisfied that Franchisee to exist, the City, in addition to taking any y order Franchisee to make the necessary to correct the unsafe condition by a time ie`right to inspect, repair and correct the id to charge Franchisee the Direct Costs 7.4.5 Dedication of "City Utilities/Public Improvements. Upon substantial completion of Construction of the Telecommunications Facilities and any related restoration of or improvements to or within the Right -of -Way, including without limitation, curbs, gutters, sidewalks, underlayment, roadway surface, pipe, connectors, catch basins, or any part,thereof that will be dedicated to City ownership (collectively "Dedicated Improvements"). Franchisee shall submit a written request to the City for a final inspection and acceptance of dedication of all Dedicated Improvements. When the City is reasonably satisfied that the Work related to the Dedicated Improvements is substantially complete, it will by ordinance, resolution or other lawful means accept ownership of such Dedicated Improvements and thereafter become responsible for maintenance, repair, and replacement of the same. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 29 Page 79 ITEM PH-1 7.5 Alterations. Except as may be shown in any approved plans by the City or as may be necessary to respond to an Emergency, Franchisee, and Franchisee's contractors and subcontractors, may not make any material alterations to the Franchise Area, or permanently affix anything to the Franchise Area, without City's prior written consent. Material alteration shall include by way of example and not limitation, a change in the dimension or height of the above ground Telecommunications Facilities or the addition of or change in configuration of an antenna. If Franchisee desires to change either the location of any Telecommunications Facilities or otherwise materially deviate from the approved design of any of the Telecommunications Facilities, Franchisee shall submit such change to the City for its approval pursuant to the procedures outlined in the Medina Municipal Code Franchisee shall have no right to commence any such alteration change until after Franchisee has received Lty's approval of such change in writing. 7.6 General Conditions. 7.6.1 Right -of -Way Meetinggs Subject to receiving advance notice, Franchisee will make reasonable efforts to attend and participate in meetings of the City regarding Right -of -Way issues that may impact its Telecommunications Facilities. 7.6.2 Compliance hn on. Following the completion of construction, Franchisee's Telecommunications Facilities Aall be subject to the City's right of periodic inspection upon at least twenty-four (24) hoursnotice, or, in case of an Emergency, upon demand without prior notice, to determine conapliapce with ` the provisions of this Franchise or Special Use Permit or other. applicable "�I * over which the City has jurisdiction. Franchisee shall respond to requests for information regarding its Telecommunications "Facilities as the City may from time to time issue to determine compliance with this Franchise, including' :requests for information regarding the Franchisee's plans' for Construction and thy. purposes for which the Telecommunications Facility is being Constructed. Notwithstandibg''the foregoing, the City agrees that it shall only conduct such inspections 11when it has received a complaint, is included as a condition of approving a I�egulatory'Permit, or when there is reasonable cause to believe that a violation exists. Franchisee reserves the right to dispute any City charge for such inspections if Franchisee believes that such inspection was unnecessary or redundant. 7.6.3 e- Call. If Franchisee places Telecommunications Facilities underground, Franchisee shall, at its own expense, continuously be a member of the State of Washington one number locator service under Chapter 19.122 RCW, or an approved equivalent, and shall comply with all such applicable rules and regulations. The Franchisee shall locate and field mark its Telecommunications Facilities for the City at no charge. 7.6.4 Graffiti Removal. Within 48 hours after notice from the City, Franchisee shall remove any graffiti on any part of its Telecommunications Facilities, including, by way of example and not limitation, equipment cabinets. If Franchisee fails to do so, the City may remove the graffiti and bill the Franchisee for the cost thereof. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 30 Page 80 ITEM PH-1 7.6.5 Danizerous Conditions, Authority for City to Abate. Whenever Construction of Telecommunications Facilities has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining Right -of -Way, street, or public place, or endangers the public, any utilities, or City -owned property, the City may reasonably require the Franchisee to take reasonably necessary action to protect the Right -of -Way, the public, adjacent public places, City -owned property, streets, and utilities. Such action may include compliance within a reasonably prescribed time. In the event that the Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if Emergency conditions exist which require immediate action, the City may, to the extent it' lawfully do so, take such actions as are necessary to protect the Right -of -Way, thw=public, adjacent public places, . ............ City -owned property, streets, and utilities, to mdirniain..tlle..lateral support thereof, or actions regarded as necessary safety precautions; and the Franchisee shall be liable to the City for the Direct Costs thereof to the extent of Franchisee's responsibility for the condition. 7.6.6 No Duty. Notwithstanding the right of City to intact the Work, issue a stop work order, and order or make repairs or, alterations, Cityh,.no duty or obligation to observe or inspect,pr 10 .halt work on, the applicable Telecommunications Facilities, it being solely flianehisee.'s responsibility to ensure that the Telecommunications Facilities are Constructed and operated in strict accordance with this Franchise, the approved 100% Design. . Submittal, the Standards, and applicable Law. Neither the exercise;nor, the failure by City to exercise any right set forth in this Article 7 shall alter the liabilitv allocatibAlset forth in this Franchis6. 7.6.7 Facilities shalt,,.be kt condition. "Franchi of -Way do not bec©t with or create a haza in the event that the of -Way is impairing hazard to mai itenanc Telecommunications koadside�Hazard. All of Franchisee's Telecommunications t by I Franelrisee at all times in a reasonably safe and hazard -free shall ensure that Telecommunications Facilities within the Right - or constitute an impassible roadside obstacle and do not interfere to maintenAnce of and along the Right -of -Way. In such event, or ty determines that a Telecommunications Facility within the Right- assage within the Right -of -Way or may interfere with or create a of and along the Right -of -Way, the Franchisee shall: f the hazard results from disrepair, repair the to a safe condition; 7.6.7.2 Relocate the Telecommunications Facility to another place within the Right -of -Way or underground; 7.6.7.3 Crash -protect the Telecommunications Facility; or 7.6.7.4In the event that the Telecommunications Facility is screened from view (i.e., not readily visible from all directions by persons standing at ground level), remove or trim vegetation in and around the Telecommunications Facility. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 31 Page 81 ITEM PH-1 Franchisee, at all times, shall employ the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public or to Franchisee's agents or employees. Franchisee, at its own expense, shall repair, renew, change, and improve its Telecommunications Facilities from time to time as may be necessary to accomplish this purpose. Franchisee shall use suitable barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such Work in or affecting such Right -of -Way or property. All excavations made by Franchisee in the :Right -of -Way shall be properly safeguarded for the prevention of accidents. 7.6.8 Verification of A] prior written notice, in non -Emergency City and in order to facilitate the locatio the Franchisee agrees to locate, and if excavate and expose portions of its Tel, the location of same may be taken into that, Franchisee shall not be required Facilities unless the Franchisee's" recori Facilities are reasonably determined paragraph. 7.7 Improvements. e `th. Upoh.the reasonable request and s" at least thirty (.30) days notice by the ent and design ofPublic Improvements, y determined necessity, by the City, to icationt facilities for instaection so that ount in the improvement design, PROVIDED excavate and`expose its Telecommunications xawings and "maps of its Telecommunications ietity to be inadequate for purposes of this 7.7.1 Public Praiect. The City may require Franchisee to alter, adjust, relocate; or protect,:in place its Telecommunications Facilities within the Right -of -Way when reasonably necessary far construction, alteration, repair, or improvement of any portion of the Right -of -Way for "purposes of public welfare, health, or safety ("Public Improvements"). Suchblic Impt9vements include, by way of example but not limitation, Right -of -Way construction; Right -of -Way repair (including resurfacing or widening); change of Right -of -Way grade; construction, installation or repair of sewers, drains, water pipeS power lines, signal lines, communication lines, or any other type of government -owned communications utility or public transportation systems, public work, public facility, or improvement of any government owned utility; Right -of -Way vacation, and the Construction of any Public Improvement by any governmental agency acting in a governmental capacity or by a developer as required by development approval. 7.7.2 Alternatives. The Franchisee may, after receipt of written notice requesting a relocation of its Telecommunications Facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives are suitable to accommodate the Public Improvement which would otherwise necessitate relocation of the Telecommunications Facilities. If so requested by the City, Franchisee shall submit ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 32 Page 82 ITEM PH-1 additional information to assist the City in making such evaluation. The City shall give each alternative proposed by the Franchisee full and fair consideration, within a reasonable time, so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines, in its sole discretion, that there is no other reasonable alternative, the Franchisee shall relocate its Telecommunications Facilities as otherwise provided in this Section. In the event that the City reasonably determines that it does not have available resources to evaluate Franchisee's proposal, the City shall not be obligated to further consider such proposal unless and until the Franchisee funds the additional costs to the City to complete its evaluation. 7.7.3 Notice/Timeline. The City shall `�Ate` practicable of the need for relocation for a Public Impro, me by which relocation shall be completed. Except is case ofx be no less than one hundred and eighty (180) days.Withii notice from the city, Franchisee shall provide a schedule estimated completion date for temporar changing, or altering the position of any Telf of -way or upon city property. In calculating City shall consult with Franchisee and a Facilities to be relocated, the she regi Regulatory Permits and Special : Use" I'er Facilities to the new location(s), and the con the overall project construction sequence relocation. Franc] City, or a reviewin Franchisee that the and meeting safety delay by the work Improvement; �Oid result in Franchisee shall operat coordinate such Franchise project schedules to avoid i i Franchisee as soon as and shall specify the date xgeney, such notice shall 0 days following written i the city indicating the or permanently 'Moving, relocating, to s a later date for COI be completed by the ins Facilities within the rights - relocation must be completed, (tent of Telecommunications time required to obtain the -ate the Telecommunications etace for the relocation, within nts� to safely complete the the date specified, unless the aletion, after a showing by the ate specified using best efforts ttion of Wark.: Franchisee acknowledges and understands performing the work to alter, adjust, relocate, or protect in F 1-ities within the Right -of -Way may delay, hinder, or med by the City and its contractors and subcontractors in alteration, repair, or improvement of the Public rage to the City, including but not limited to, delay claims. °ith the City and its contractors and subcontractors to ork to accommodate the Public Improvement project and y, hindrance of, or interference with such project. 7.7.5 Failure to Comply. Should Franchisee fail to alter, adjust, protect in place or relocate any Telecommunications Facilities ordered by the City to be altered, adjusted, protected in place, or relocated, within the time prescribed pursuant to Section 7.7.3, or if it is not done to the City's reasonable satisfaction, the City may, to the extent the City may lawfully do so, cause such work to be done and bill the Direct Costs of the work to the Franchisee. In such event, the City shall not be liable for any damage to any portion of Franchisee's Telecommunications Facilities. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 33 Page 83 ITEM PH-1 7.7.6 Assignment of Ri hits. In addition to any other rights of assignment the City may have, the City may from time to time assign or transfer to its contractors or subcontractors its rights under Sections 7.7 or 7.9 of this Franchise to require Franchisee to alter, adjust, relocate, or protect in place its Telecommunications Facilities within the Right -of -Way to accommodate a Public Improvement. Franchisee acknowledges and consents to such an assignment(s)/transfer(s) and agrees that it is bound by all lawful orders issued by such assignee(s) of the City under color of authority of such assignment(s)/transfer(s) as though such orders had been issued by the City under the terms and conditions of this Franchise. Such assignment/transfer is an assignment/transfer of the City's contract rights under this Franchise and shall not in any way be interpreted or construed as an assignment, transfer, delegation or relinqu%i merit of the City's rights under its police powers to require Franchisee to alter, adjust,,; ,f ocate, or protect in place its Telecommunications Facilities within the RiRht,o Va� y ao accommodate a Public Improvement. 7.7.7 Reimbursement 1 provisions set forth in this Franchise, F be entitled to seek reimbursement of its set forth and authorized in statute, 7.8.1 relocation, or proto required to accom Public Improvemetil notice, take action or the in Franchisee's ability to necessary Regulatory F adjustment, temporr or temporary relocatic advantage over the Frai It Notwithstandii does not waive i costs as.mav be Faci cost allocation (s) to and shall ��e specifically iyate Benefit— If any. alteration; adjustment, temporary in place of any of Franchiseo's Telecommunications Facilities is the `Construction of facilities or equipment that are not part of a ect, Franchisee shall; after at least ninety (90) days advance written ffect the?.necessary changes requested by the requesting entity; ;on reauestitiLt the same nays for the Franchisee's time and material requested work; (b) the alteration, adjustment, temporary ce - reasonably necessary to accommodate such work; (c) the ion, adjustment, temporary relocation, or protection in place ;ame manner as provided at Section 7.7.2; (d) such alteration, :ion or protection in place does not unreasonably interfere with aue to provide Service; (e) Franchisee is able to obtain all and/or Special Use Permits before completing such alteration, Lion or protection in place and (f) such alteration, adjustment, not requested for the purpose of obtaining a competitive 7.8.2 Temporary Changes for Other Persons. At the request of any Person holding a valid permit and upon reasonable advance notice, Franchisee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder. Franchisee shall be given not less than fourteen (14) days' advance notice to arrange for such temporary wire changes. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 34 Page 84 ITEM PH-1 7.9 Movement of Telecommunications Facilities During Emer encies. 7.9.1 Immediate Threat. In the event of an unforeseen event, condition or circumstance that creates an immediate threat to the public safety, health, or welfare, the City shall have the right to require Franchisee to shut down, relocate, remove, replace, modify, or disconnect Franchisee's Telecommunications Facilities located in the Right -of - Way at the expense of the Franchisee without regard to the cause or causes of the immediate threat. 7.9.2 Emergency. In the event of an Emergency, or where a Telecommunications Facility creates or is contributing.t&'ar imminent danger to health, safety, or public property, the City shall have the right to require Franchisee to shut down, relocate, modify or disconnect one or more of its Telecommunications Facilities located in the Right -of -Way at the Franchisee's. expense 7.9.3 Notice. During Ems practicable, provide notice to Franchisee of response contact number, to allow Franchi� problem without disrupting Service. To the to such notice, the City may protect,'suppol any or all parts of Franchisee's Telecom] of -Way to the extent the City in its "sale di the Emergency and to charge the Franchisee s the City shall endeavor to, as soon as Emergency at a designated Emergency opportunity to respond and rectify the the Franchisee fails to timely respond )or aril disconnect, remove, or relocate ons Filities located within the Right- 1 determines is necessary to respond to e reasonable costs incurred. 7.9.+- , Limitation on Liabiiity_ The City shill not be liable for any direct, indirect, or any other such damages suffered-, by any person or entity of any type as a direct or indirect result of the Cit's .actions under this Section. 7.10 Ree Id of 1nsAallations 7.10.1 Planned Improvements. Upon written request of the City, Franchisee, -shall provide the. City with the most recent update available of any planned improvements to its Telecommunication System to the extent such plans do not contain confidential' or proprietary information or such information can be redacted; provided, however, any such —plan submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such plan be ........ ....... construed as a proposal 'to undertake any specific improvements. 7.10.2 MWs/Record Drawings of Telecommunications Facilities. After Construction involving the locating or relocating of Telecommunications Facilities, or upon request by the City, the Franchisee shall provide the City with accurate copies of all record drawings and maps showing the horizontal and vertical location and configuration of all of located or relocated Telecommunications Facilities within the Right -of -Way. These record -drawings and maps shall be provided at no cost to the City, and shall include hard copies and digital copies in a format reasonably specified by the City. As to any such record drawings and maps so provided, Franchisee does not warrant the ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 35 Page 85 ITEM PH-1 accuracy thereof and to the extent the location of the Telecommunications Facilities are shown, such Telecommunications Facilities are shown in their approximate location. 7.11 Restoration of Right -of -Way, Public and Private Property 7.11.1 Restoration after Construction. Franchisee shall, after completion of Construction of any part of its Telecommunications Facilities, leave the Right -of -Way and other property disturbed thereby, in as good or better condition in all respects as it was in before the commencement of such Construction. Franchisee agrees to promptly complete restoration work to the reasonable satisfaction of the., City. 7.11.2 Notice. If Franchisee's Work,i es unplanned, unapproved, or unanticipated disturbance of or alteration or damage to light -of -Way or other public or private property, the Franchisee shall promptly notify the property owner within twenty-four (24) hours of discovery. 7.11.3 Duty to Restore. If Franchisee's Work causes unplanned, unapproved, or unanticipated disturbance of or alteration or, damage to the Right -of -Way or other public property, it shall promptly restore sut h'2ightof--Way and publicproperty to as good or better a condition . as existed before the' Work was undertaken, unless otherwise directed by the City. ,If thc;City determine that complete or satisfactory restoration is not obtainable, the City shall have the right to:<<require compensation for the less than complete or satisfactory condition of, the Righf�of-Way or public property. Franchisee shall initiate the restoration work withiri.fot eight (48) hours or as authorized by the City's Public, -Works Director and shall diligently continue such restoration work until completed. 7.I1.4 Tg_iiWgy Rest ration. , If weather or other conditions do not allow`° the complete .restoration required ,'by ;this Section, Franchisee shall temporarily restore the affected Right -of -Way or public property. Franchisee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 7.11.5 Survey Monuments. All survey monuments which are disturbed or displaced by any Work shall be referenced and restored, as per WAC 332-120, as the same now exists or.ay hereafter be amended, and all pertinent federal, state and local standards and specifications: 7.11.6 Approval. The City shall be responsible for observation and final approval of the condition of the Public Rights -of -Way and City property following any restoration activities therein. Franchisee is responsible for all testing and monitoring of restoration activities. 7.11.7 Warranjy. Franchisee shall warrant any restoration work performed by Franchisee in the Right -of -Way or on other public property for two (2) years, unless a longer period is required by the Municipal Code or any generally applicable ordinance or ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 36 Page 86 ITEM PH-1 resolution of the City. If restoration is not satisfactorily and timely performed by the Franchisee, the City may, after prior written notice to the Franchisee, or without notice in case of Emergency, cause the repairs to be made and recover the Direct costs of those repairs from the Franchisee. 7.11.8 Restoration of Private Property. When Franchisee does any Work in the Right -of -Way that affects, disturbs, alters, or damages any adjacent private property, it shall, at its own expense, be responsible for restoring such private property to the condition that existed prior to the Work to the reasonable satisfaction of the private property owner. 7.12 Approvals. Nothing in this Fr duty or obligation upon the City to determine the Design Documents or to ascertain whether Fran( is adequate or sufficient or in conformance wit] approval given, inspection made, review or, super or under authority of this Franchise shall constitu warranty express or implied by the City that sr d supervised, complies with applicable Laws or Standard, code or requirement, or is in conformal and no liability shall attach with respect then provided herein, are for the sole purpose`of pr and/or manager of the Public Rights -of -Way arii or warranty, express, -or implied, as to the adeq , Facilities or Telecommunication System, .:u Construction, or any obligation Dn the part" of11, are in compliance with -any requirements irtio under no obligation or duty to_ suppeMJse the di Telecommunication. Svstern. duties and ;obligations 1 abandon in blace shall be 8.1 Headin this Franchise and shall hereof. achis�.. 1 all be deemed to impose any I.degtiacy.or sufficiency of Franchisee's iisee's proposed or actual Construction any plans_apptoved by the City. No ision performed by the City pursuant to e or be construed as representation or item reviewed, appro v,, inspected, or his Franchise or meets y particular -61 with the approved plans by the City, o. City-, approvals and inspections as tecting the City's rights as the owner shall not "constitute any representation ,y of the design or Construction of the :ability of the Franchise Area for City to insure that Work or materials -d by a governmental entity. City is ,ign, Construction, or operation of the f Telecommunications Facilities. Franchisees rights, ove its unauthorized Telecommunications Facilities or forth in MMC 19.10.170. les to articles and sections of this Franchise are not a part of no effect upon the construction or interpretation of any part 8.2. Entire Agreement. This Franchise contains all covenants and agreements between the City and the Franchisee relating in any manner to the Franchise, use, and occupancy of the Right -of -Way and other matters set forth in this Franchise. No prior agreements or understanding pertaining to the same, written or oral, shall be valid or of any force or effect and the covenants and agreement of this Franchise shall not be altered, ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 37 Page 87 ITEM PH-1 modified, or added to except in writing signed by the City and Franchisee and approved by the City in the same manner as the original Franchise was approved. 8.3 Incorporation of Exhibits. All exhibits attached hereto at the time of execution of this Franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. 8.4 Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last day of any period falls on any Saturday, Sunday; or legal holiday in the State of Washington, the period shall be extended to include the nektday which is not a Saturday, Sunday, or legal holiday in the State of Washington; provided, that, the Effective Date shall be determined as provided at Section 4.3 of this Franchise. 8.5 Time Limits Strictly Construed: Whenever this Franchist .sets forth a time for any act to be performed by either Party, such .time shall be deemed to b of the essence, and any failure of either Parry to perform within the.- allotted time may t* considered a Breach of this Franchise. 8.6 No Joint Venture. It is not intended by'this Franchise to, and nothing contained in this Franchise shall, create any partnership, joint venture, or principal -agent relationship or other arraement between Francltisee.-and the City. Neither Parry is authorized to, nor,shall either Warty act toward'thkd Persons or the public in any manner which would indicate any such ',relationship, with the other. The Parties intend that the rights, obligations, and covenants in this Franchise and the collateral instruments shall be exclusively enforceable by the: City and Franchisee, their successors, and assigns. No term or provision of this Franchise is intended to be, or shall be, for the benefit of any Person' not a Party hereto, and do such Person shall have any right or cause of action hereunder, except as mad, be otherwise provided herein. Further, the Franchisee is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City. Nothing in this Section 8.6 shall be construed to prevent an assignment as provided for at Section 7.8.7 of this Franchise. 8.7 Approval Authority. Except as may be otherwise provided by applicable Law or herein, any approval or authorization required to be given by the City, shall be given by the Public Works Director (or its successor), or by the Public Works Director's designee. 8.8 Binding Effect upon Successors and Assigns. All of the provisions, conditions, and requirements contained in this Franchise shall further be binding upon the heirs, successors, executors, administrators, receivers, trustees, legal representatives and assigns of the Franchisee and the City; and all privileges, as well as all obligations and liabilities of the Franchisee and the City shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned wherever the Franchisee is named herein. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 38 Page 88 ITEM PH-1 8.9 Waiver. No failure by either Party to insist upon the performance of any of the terms of this Franchise or to exercise any right or remedy consequent upon a Breach thereof, shall constitute a waiver of any such Breach or of any of the terms of this Franchise. None of the terms of this Franchise to be kept, observed or performed by either Parry, and no Breach thereof, shall be waived, altered or modified except by a written instrument executed by the injured Party. No waiver of any Breach shall affect or alter this Franchise, but each of the terms of this Franchise shall continue in full force and effect with respect to any other then existing or subsequent Breach thereof. No waiver of any default of the defaulting Party hereunder shall be implied from any omission by the injured Party to take any action on account of such defadlt if such default persists or is repeated, and no express waiver shall affect any default.6ther than the default specified in the express waiver and then only for the time and to`the4;ctent therein stated. One or more waivers by the injured Parry shall not be construed as a waiver of a subsequent breach of the same covenant, term or conditions. 8.10 Severability. If any word, article, section, subsection, paragraph, provision, condition, clause, sentence, or its application to any person or circumstance, (collectively referred to as "Term"), shall be held to be illegal, jnvaiid, or unconstitutional for any reason by any court or agency of.competent jurisdiction, such Term declared illegal, invalid or unconstitutional shall be s�cver ble and the r raining Terms of the Franchise shall remain in full force and effect�unless to. do so would:be inequitable or would result in a material change in the, rights and obligations of the Parties, hereunder, in which case the Parties shall refp the 'ranchise pursuant to section 3.5 herein. 8.12 Si__g_nys4: .No signs or advertisingshall be permitted in the Franchise Area except as may be required by applicable Law or as may be required by the City for the protection, of thepublic health, safety"404 welfa; to the extent it has authority to do so. 8.13 Discrinninatory Practices Prohibited. Throughout the term of this Franchise, Franchisee shall fully eo,t,ply with all equal employment and nondiscrimination provisions of applicable Law. 8.14 " Notice. Any notice required or permitted to be given hereunder shall be in writing, unless otherwise expressly permitted or required, and shall be deemed effective either, (i) upon hand delivery to the person then holding the office shown on the attention line of the address beloyv, ' or, if such office is vacant or no longer exists, to a person holding a comparable office, or (ii) or when delivered by a nationally recognized overnight mail delivery service, to the Party and at the address specified below, or (iii) on the third business day following its deposit with the United States Postal Service, first class and certified or registered mail, return receipt requested, postage prepaid, properly sealed and addressed as follows: Franchisee's address: ATC Outdoor DAS, LLC ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 39 Page 89 The City's Address: And to the City Attorney City of Medina Attn. City Manager 333 S. Meridian Medina, WA 98371 Office of City Attorney Attn. City Attorney 333 S. Meridian Medina, WA 98371 The City and Franchisee may designate such other written notice to the other, but notice cannot be r except by mutual agreement. 8.15 Survival of Terms. Upon forfeiture of the Franchise, the Franchisee Franchise Area for the purpose of providir. Franchisee's obligations under this Franch termination, revocation or forfeiture of these right the Franchisee's Telecommunications Facilities or or in part in the Right-of-W Telecommunications Facilities in it abandons said Telecommunication; obligations include; lay Ewa ©f illusi indemnify, defend:; and protect. the and to reimburse did -City for its Dire performance of any of its obligati, reasonof a force majeure occur terrorists, war, riots, civil disturb unusually, severe weather conditi not attributable to Franchisee's er provisions of thisFranchise. , ITEM PH-1 from time to time by giving to more than two addresses, expiration, termination, revocation or no longer have the right to occupy the vices authorized herein. However, the the Cif shall survi e`:the expiration, s .acoording to its terms fair so long as ally part thereof shall remain in whole chisel.:.transfers ownership of all rea to a. third -party, or the Franchisee ilities in place, all, as, provided herein. Said t and ,.110 limitation, franchisee's obligations to to provide insurance, to relocate its Facilities, ►sts to perform Franchisee work. :vent Franchisee is prevented or delayed in the 'ein due to circumstances beyond its control or by such as but not limited to, acts of God, acts of natural disasters, floods, tornadoes, earthquakes, nployee strikes and unforeseen labor conditions ;s. Franchisee shall not be deemed in Breach of If Franchisee believes that circumstances beyond its control or by reason of a force majeure occurrence have prevented or delayed its compliance with the provisions of this Franchise, Franchisee shall provide documentation as reasonably required by the City to substantiate the Franchisee's claim. Franchisee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Franchise or to procure a substitute for such obligation which is reasonably satisfactory to the City; provided that, the Franchisee shall perform to the maximum extent it is able to perform and shall take immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with the 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, Right -of -Way, public property, or private property. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 40 Page 90 ITEM PH-1 8.16 Attorneys' Fees. In the event of a suit, action, arbitration, or other proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted to enforce any word, article, section, subsection, paragraph, provision, condition, clause or sentence of this Franchise or its application to any person or circumstance, the prevailing Party shall be entitled to recover from the losing Party its reasonable attorneys, paralegals, accountants, and other experts fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as allowed by Washington law and as determined by the judge or arbitrator at trial or arbitration, as the case may be, or on any appeal or review, in addition to all other amounts provided by law. This provision shall cover costs and attorneys' few related to or with respect to proceedings in Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law. This provision shall not apply to the extent that the suit, action, arbitration or other proceeding is brought to interpret any term, condition; provision, section, article or clause of this Franchise. 8.17 Venue/Choice of Law. Thi, accordance with the laws of the State of enforcement of this Franchise, or, seeking herein, shall be initiated in the Superior Cc shall not be removed to a federal court, t Court has no jurisdiction. Removal to fec Western District of Washington. 8.18 Publication. This ordinancf official newspaper of the City, theexpense take effect and be in U- I force in ATTEST/AUTHENTICATED: Rachel Baker, City Clerk ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 shall be governed :and construed in i.:. Any action br ht relative to a decl4rationn-of rights, duties 6vobligations [rt of County in which the City is located, and kept as to Maims over which such Superior rral court shall to the Federal Court of the unary -thereof, shall be published in the shall be borne by Franchisee, and shall ;tion 4.3 herein. OUNNCLL AT A REGULAR MEETING THEREOF 20 , AND SIGNED IN AUTHENTICATION OF , 20 41 CITY OF MEDINA Mayor Page 91 Approved as to form: Bruce Disend, City Attorney Filed with the City Clerk: Passed by the City Council: Ordinance No. Date of Publication: ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 42 ITEM PH-1 Page 92 EXHIBIT A Map Depicting Franchise Area ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 ITEM PH-1 43 Page 93 EXHIBIT B Medina Municipal Code Title 19 ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 ITEM PH-1 44 Page 94 ITEM PH-1 EXHIBIT C Form of Transfer Agreement THIS TRANSFER AGREEMENT ("Agreement") is made this day of 20 , by and between: 1. PARTIES. 1.1 City of Medina, a legal subdivision of the 1.2 1.3 ("F RECITALS WHEREAS the City has issued a Franchisee, which was authorized on the _ pursuant to Ordinance No. ,, and WHEREAS Franchisee has transaction, example: Transferee, to Way) Washington ("City"). (the hise") to 20 , nent with Transferee on a (describe Of benefited property) with and equipment located in the Right -of - and REAS Franchisee and: Transferee have requested that the City approve a Franchise frm Franchisee to Transferee, and WHEREAS, as a result of the transfer of the Franchise, Transferee will assume all rights, duties, and obligations that Franchisee has under the Franchise, will be responsible for full compliance" with , the. Franchise, will meet or exceed all applicable and lawful federal, state, and local requirements, and WHEREAS, relying on the representations made by the Transferee and Franchisee, the City, on the day of , 20 , has, pursuant to Resolution No. and the Franchise, approved the transfer upon the terms and conditions as stated herein; NOW, THEREFORE, in consideration of the City's approval of the transfer, subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY AGREE as follows: ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 45 Page 95 ITEM PH-1 2. TRANSFER. Transfer of the Franchise shall be effective upon the following conditions precedent: 2.1 Receipt by the City of the fully executed acceptance of franchise and performance guarantee attached hereto as Exhibit A-1 together with all required certificates of insurance, security fund and performance bond. 2.2 Payment to the City of the Direct Costs of processing the Transfer. 2.3 The date of closing of the sale/conveyance of the property benefited by this Franchise and/or the Telecommunications Facilities Zbcated in the Franchise Area, or the date mutually agreed to by the City, Franchisee and Transferee as follows: whichever occurs first. 3. ACCEPTANCE OF FRANCHISE_,;OOBLIGATIONS. 3.1 Franchisee agrees that neither the'l ansfernox the City's aroval of this Agreement shall in any respect relieve Franchisee, or any-4 its successors i interest, of any obligation or liability arising from acts or omission occurring prior to the Transfer of the Franchise, whether known or unknown, -or the consequences thereof. 3.2 The Transfe Franchisee to take any posi prior to the Transfer. 3.3 Notwithstan responsible for any of Fran, Franchise or pursuant to the Transfer of the Franchise. 14 : The City wa Transferee's compliance w forth in the Franchise. The deemed a representation by Franchisee's obligaons is not intended and'shall not be construed to authorize the on or exercise any right that could riot have been exercised nything to thecontrary herein, Transferee shall not be ''s financial liabilities and obligations under the code, rules, and regulations that accrued before the none of its rights with respect to the Franchisee's or he terms, conditions, requirements, and obligations as set y's approval of the this Agreement shall in no way be City that Franchisee is in compliance with all of the Franchise. 3.6 Franchisee and Transferee acknowledge and agree that the City's approval and acceptance of this Agreement and the resulting Transfer is made in reliance upon the representations, documents, and information provided by the Franchisee and Transferee in connection with the request for transfer. 4. MISCELLANEOUS PROVISIONS. 4.1 Conditions Precedent. The Agreement shall be effective and binding upon the signatories once it has been signed by all signatories; provided that, within 30 days of ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 46 Page 96 ITEM PH-1 execution of the Agreement by all of the signatories, Transferee shall provide the City the following: (1) all fees required for this Transfer, (2) its acceptance of the Franchise in substantially the form of the document attached as the Franchise as Exhibit C-1; (3) its insurance certificate in conformance with the requirements of the Franchise; (4) a performance bond or cash deposit in conformance with the requirements of the Franchise. 4.2 Entire Agreement. The Agreement constitutes the entire agreement of the Parties with respect to the matters addressed herein. No statements, promises, or inducements inconsistent with the Agreement made by any Party shall be valid or binding, unless in writing and executed by all Parties. 4.3 Binding Acceptance. The Agreement $lull bind and benefit the Parties hereto and their respective heirs, beneficiaries, ° a rniffisttators, executors, receivers, trustees, successors, and assigns, and the promises and obligations herein shall survive the expiration date hereof. Any purported transfer of the Agreement is void without the express written consent of the signatories. ` 4.4 Severability. In the event to be invalid, preempted, or unenforceabl respects and continue to be effective. 4.5 Defined Terms. meaning as given in the Francl 4.6 C laws of the state The ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 tat the Agreement shall, to any extent, be held the re nd&-hereof shall be valid in all other defined in this`�ement shall have the same Omenf shall be governed in all respects by the the following page) 47 Page 97 ITEM PH-1 IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the day and year first written above. By: Donna Hansen, City Manager ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 FRANCHISEE By: _ Title: Page 98 ITEM PH-1 TRANSFER EXHIBIT C-1 Acceptance of Franchise and Performance Guarantee Franchise issued pursuant to Ordinance No. and accepted , 20 Transfer authorized pursuant to Resolution No. , effective , 20 I, , am the and (am the authorized representative to) accept the behalf of I terms and conditions thereof are accepted by qualification or reservation and that guarantee(s) performance of all such terms and cbm DATED this day of Tax Payer ID# STATE OF CITY :OF I certify that I kn< corporation,) to be the frf and purposes mentioned. renced Franchise on this Franchise and all without unconditionally or have satisfactory evidence that _ is the person who appeared before me, and said person on signed`this instrument, on oath stated that said person was ,tiument and acknowledged it (as the of , a endvoluntary act of such corporation/individual for the uses he instrument. Dated this day of ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 (Signature of Notary) Print Name Notary public in and for the state of , residing at My appointment expires 49 Page 99 EXHIBIT D Acceptance of Franchise Franchise issued pursuant to Ordinance No. I, , am the and (am the authorized representative to) accept the above-refe behalf of I certify.tht terms and conditions thereof are accepted by qualification or reservation and that guarantee(s) performance of all such terms and conditions:, DATED this day of , 20 SS. ITEM PH-1 renced Franchise on this Franchise and all , without unconditionally have satisfactoryev dence that is the person Who appeared before me, and said person sued this instrument, on oath stated that said person was iment and acknowledged it (as the of , a voluntary act of such corporation/individual for the uses ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 50 Page 100 ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 ITEM PH-1 (Signature of Notary) Print Name Notary public in and for the state of , residing at My appointment expires 51 Page 101 ITEM PH-1 EXHIBIT E Environmental Indemnity (This Exhibit is under review and subject to further revision) 1. Duty to Indemniff/Release/Defend. Franchisee assumes the risk that Hazardous Substances or other adverse matters may affect the Franchise Area that were not revealed by Franchisee inspection and indemnifies, holds harmless and hereby waives, releases and discharges forever the City and City's officers, employees and agents (collectively, "Indemnitees") from any and ai, present or future claims or demands, and any and all damages, losses, injuries,. , liabilities, causes of actions (including, without limitation, causes of action in- tort) casts and expenses (including, without limitation fines, penalties and judgments, and attorneys' fees) of any and every kind or character, known or unknown, which franchisee mighi have asserted or alleged against Indemnitees arising from or in any way related to the Condition of the Franchise Area or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, a;: or under the Franchise Area (the "Franchisee Losses"). Franchisee ` Losses shall include without limitation (a) the cost of any investigation, removal, or -,Remedial Action (defined below) that is required by any Environmental Law,; that is required by judicial order or by order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b�. .losses'`fot injury or'death of any person, and (c) losses arising under. airy EW yironrnental-Law enacted after,the date hereof. Except as may be limited below, Franchisee Losses specif eaily include: ltlses sustained by Franchisee as a result of any ebgation of Franchisee toremove, close,'Remediate, reimburse or take other actions requested or re' red by any governmental agency concerning any Hazardous Substances on the Pia ltiso Area. Notwithstanding the above, Franchisee Losses waived; released, and discharged hereunder by Franchisee shall not include losses as a result of releases ,or contamination caused by the acts of the City after the Effective Date. , The rights, duties And obligations of the city and franchisee pursuant Sections 2 and 3 herein apply to the duty to Indemnify and defend as provided in this Section 1. 2 Discovery Wfthin Franchise Area. In the event that the Work of the Franchisee in, on and upon the Franchise Area results in the discovery of the presence of Hazardous Substances ("Discovered Matters") in, on or upon the areas excavated or otherwise opened or exposed by Franchisee within the Franchise Area (the "Excavated Areas"), the Franchisee'` shall immediately notify the City and take whatever other reporting action is required by applicable Environmental Law as it relates to the Discovered Matters in the Excavated Areas. In the event that, as a result of such discovery, an agency with jurisdiction to address Hazardous Substances in, on or upon the Franchise Area ("Environmental Authority") orders, obtains a judgment or court order requiring, or otherwise exercises its authority to require Remedial Actions to be taken by the City or Franchisee, or Franchisee decides to undertake Remedial Actions independently or enter into a consent order or consent decree with an Environmental Authority, then in such event, Franchisee agrees to indemnify, defend, and hold the City ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 52 Page102 ITEM PH-1 harmless from and against the cost of all Remedial Actions which are required by the Environmental Authority within the Excavated Areas under the applicable Environmental Laws with respect to the Discovered Matters; provided, however, the City, subject to the provisions of Section 3 below, shall be solely responsible for all necessary Remedial Actions which are required by the Environmental Authority within other portions of the Franchise Area (outside the Excavated Areas) under the applicable Environmental Laws with respect to the Discovered Matters. 3 Release by Franchisee. In the event the Franchisee's Work, in, on or upon the Franchise Area within the Excavated Areas results in,a release (as determined under applicable Environmental Laws) of Hazardous Substances` which were, before such activities, confined to areas within the Excavated Areas, but which after such activities by Franchisee are released beyond the Excavated Areas; and if'e release is caused in whole or in part by the Franchisee, then the Franchisee shall ind�nnify, defend and hold the City harmless from the costs of all necessary Remedial Actions ,Which are required under the applicable Environmental Laws, to the extent of Franchisee's share of the liability for the release. Franchisee's liability for the: release may, inter alia, be determined by Franchisee's admission of the same, or as determined by a final non -appealable decision by a court of competent jurisdiction, or as proyWd in a final `ribA-appealable administrative order issued by the Environmental Authority, or by a consent decree entered by Franchisee and the Environmental Authority ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 53 Page 103 ITEM PH-1 EXHIBIT F Insurance Requirements 1 General Requirement. Commencing upon issuance of the first Site Specific Permit under this Franchise, Franchisee must have adequate insurance at all times while Franchisee owns or operates Telecommunications Facilities in the Right -of -Way, to protect the City against claims for death or injuries to Persons or damages to property or equipment which in any way relate to, arise from or are connected with this Franchise or Site Specific Permit, or involve the Telecommunications Facilities, Franchisee, its agents, representatives, contractors, subcontractors and their employees. 2 Minimum Insurance Limits. The Franchisee shall maintain the following minimum insurance coverages and limits: 2.1 Commercial General Liability: insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit . location endowment for the Franchise Area, and shall provide.coverage for any,and all costs, includingefense costs, and losses and damages resulting irom personal injury, bodily injury and death, property damage, products liability and completed operations. ,9uch insurance shall include broad form and blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be wiritten with the following limits ofliability: ' ,$5,000,000;for bodily frajury or death to each person, $5 000,006 for property, damage resulting form any one accident; $5-,000,900 f+ar,All other types of liability; and $3,000,000 for promises -operations, explosions and collapse hazard, underground hazard and products completed hazard 2.2 Automobile Liability: shall include owned, hired, and non -owned vehicles on an occurrence basis with coverage of at least $3,000,000 per occurrence. 2,3 WorkerCompensation Insurance: shall be maintained during the life of this Franchise to comply with statutory limits for all employees, and in the case any work is sublet, tho Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance with limits of $1,000,000 each occurrence. 2.4 Excess or Umbrella Liability; $5,000,000 each occurrence and $5,000,000 policy limit. 2.5 Pollution Legal Liability Insurance: (At the option of the City) $5,000,000 per occurrence and $10,000,000 in the aggregate. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 54 Page 104 3 Endorsements. Franchisee Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: 3.1 The Franchisee's insurance coverage shall be primary insurance with respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of the Franchisee's insurance and shall not contribute to it. 3.2 Franchisee, through policy endorsement, shall waive its rights of subrogation against the City for all claims and suits. 3.3 That the coverage shall whom a claim is made or suit is brought, except liability. 3.4 The Franchisee's ins insured, and other Persons to whom the Cit. Law, to protect or insure as an additional ins work performed in the Right -of -Way under a 3.5 The "railroad exclusion" be deleted or 2417. to each insured against the limits of the insurer's -e shall name obligated under of the City. as an additional agreement or by ies arising out of ;hallinclude a requirement that the the alternative, ISO endorsement CG 3 -6r :: The insurance coverages, and limits; provided herein shall not be canceled or reduced,,; nor the intention not to renew be stated so as to be out of compliance with the requirements herein without sixty (60) days written notice, certified mail, return receipt requested; first being given to the City. If the insurance is canceled or reduced in co crags, Franchisee shall' provide a replacement policy. Each policy shall contain the followingz endorseme t: It is hereby understood and` ,.greed that this policy may not be canceled nor the. intention not to renew be stated until 60 days after receipt by the City, by "registered mail, of a written notice addressed to the City Manager of such intent to cancef or not to renew. 4. Accgptatrft of Insurers. Each insurance policy obtained pursuant to this Franchise shall be issued' by financially sound insurers who may lawfully do business in the State of Washington with a financial strength rating at all times during coverage of no less than an "A" and in a financial size category of no less than "X", in the latest edition of `Best's Rating Guide" published by A.M. Best Company. In the event that at any time during coverage, the insurer does not meet the foregoing standards, Franchisee shall give prompt notice to the City and shall seek coverage from an insurer that meets the foregoing standards. The City reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 55 Page105 ITEM PH-1 5. Verification of Coverage. The Franchisee shall furnish the City with signed certificates of insurance and a copy of the amendatory endorsements, including, but not necessarily limited to, the additional insured endorsement, evidencing the Automobile Liability, Commercial General Liability and Umbrella or Excess insurance of the Franchisee upon acceptance of this Franchise. The certificate for each insurance policy is to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard forms or on such forms as are consistent with standard industry practices. The Franchisee hereby warrants that its insurance policies satisfy the requirements of this Franchise. 6. Deductible. Commercial General . Libility Insurance policies and coverage required herein may include a reasonable:ileduetible not to exceed 10% of the minimum per occurrence commercial general liablity polio limits; provided, however, that if Franchisee elects to include any deductible, Franchisee shall itself directly cover, in lieu of insurance, any and all City Liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not to include a deductible. Such direct coverage by F chisee shalfbe ,in an amount equal to the amount of Franchisee's actual deductible.,, ,. 7. No Limitation. Francl*'s maintenance of insurance policies required by this Franchise shall not be construed to excu unfaithful performance by Franchisee or limit the liability of Franchisee to the coverage provided in the insurance policies, or otherwise limit the City's recour3e to any„other remedy available at law or in equity. 8. Mod i;�ications of `Coverages = and Limits. 'The City reserves the right, during the term of tranchie_ to require any other insurance coverage or adjust th se policy limits s it deemreasonably necessary utilizing sound risk management practices and principals based upon theloss exposures; provided that the City may not require other insurance limits or change the policy limits for Franchisee unless the City contemporaneously mares comparable changes to the insurance requirements for other franchisees with comparable franchises, services and installations in the Right -of -Way. Prior to imposing such additional coverage or adjusting existing required coverages or limits, the City shall provide reasonable notice to the Franchisee and an opportunity to provide comments; and the City shall review and consider such comments that are timely made. 9. Public Franchisees. Franchisee Commercial General Liability, Automobile liablity and Umbrella Coverage Insurance policies and coverage required herein for Public Franchisees may include a reasonable a self -insured retention; provided, however, that as to any self -insured retention, Franchisee shall itself directly cover, in lieu of insurance, any and all City liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not to include a self -insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual self -insured retention. "Public Franchisee" for purposes of this Section 9 shall mean and include, any Franchisee ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 56 Page106 ITEM PH-1 organized as a political subdivision of the state of Washington, but shall not mean or include agents, contractors and subcontractors of Franchisee that are not also organized as political subdivisions. Franchisee shall be required to provide verification of self- insurance retention coverage in a form and content acceptable to the City. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 57 Page107 ITEM PH-1 EXHIBIT "E" (Financial Security) Franchise shall comply with the financial security requirements set forth in Exhibit B. EXHIBIT G Form of Parental Guarantee This Guaranty is made on the date set forth below by [NAME OF GUARANTOR] (hereinafter referred to as the "GUARANTOR"). RECITALS: WHEREAS, . * * (Guarantor) and the City of Medina.; (the "CITY") have entered into a Franchise Agreement (the "Franchise") dated , 20�. WHEREAS, The Franchise requires fulfillment and performance of Franchisee's NOW, THEREFORE, ifr.p Agreement to Franchisee and in i receipt and sufficiency of which agrees to the following: GUARANTOR to guaranty the observance, bligations under the Franchise., aeration �f the City's grant of the Franchise other good. and valuable consideration, the Acknowledged,: .the GUARANTOR hereby 1. GUARANTOR guarantees to the' CITY the observance, fulfillment and lance by Franchisee of eabh:and;every 'obligation of Franchisee in the Franchise, to the extent that` any such provision, or obligation is unenforceable under )le law (the "Otiaranty").. 2: The Guaranty sbl continue in full force and effect until the City releases the Guarantor from its obligations under this Guarantee, Franchisee Transfers all of its Telecommunications Facilities to a third person pursuant to Section 2.7 of the Franchise; provided that such third person is not an Affiliate of Guarantor, Franchisee abandons its Telecommunications: Facilities in place pursuant to Section 7.14 of the Franchise, Franchisee removes all 01ts Telecommunications Facilities from the Right -of -Way, or otherwise by operation of law or contract. In no event shall the Guaranty extend beyond the Term of the Franchise Agreement. 3. This Guaranty shall be governed by and construed in accordance with the Laws of the State of Washington. 4. If any provision of this Guaranty is determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction, then such determination shall have no effect on ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 Page108 ITEM PH-1 the validity of any other provision of this Guaranty unless to do so would be inequitable or would result in a material change in the rights and/or obligations of any party hereunder, in which case the Parties shall reform this Guaranty using the process set forth in Section 3.5 of the Franchise. IN WITNESS WHEREOF, the GUARANTOR has caused the Guaranty to be executed by its duly authorized representative on the date set forth below. CITY OF I certify that I know or have is the acknowledged that $aid person sign authorized to execute the instrument ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 person wha appeared before me, and said person d thin instrument, on math stated that said person was and acknowledged it (as the ,a itary act of�sueh corporation/individual for the uses (Signature of Notary) Print Name Notary public in and for the state of , residing at My appointment expires 59 Page109 ITEM PH-1 EXHIBIT H Contractor/Subcontractor Insurance Requirements 1 General Requirement. Prior to commencing and during the period of Work performed within the Public Franchise Area, Franchisee contractors and subcontractors (hereafter the "Contractors") must have in place adequate insurance to protect the City against claims for death or injuries to Persons or damages to property or equipment which in any way relate to, arise from or are connected with this such Work. 2 Minimum Insurance Limits. The Contractors shall maintain the following minimum insurance coverages and limits: 2.1 Commercial General injury, and property damage. The Cop written on an occurrence basis, with an Franchise Area, and shall provide coverage and losses and damages resulting; from per: damage, products liability and completed o following limits of liability: nl�: insurance` L6• cover liability, bodily ;ial General Liability, insurance shall be ,gate limit location endorsement for the my and alt costs, inclu�in ;defense costs, injury, bodily injury and death, property Lions: Coveraize must be written with the $ 1,000,000 per occurrence," $000,000 general aggregate and $1,00QW products o npleted operations aggregate. 2.2 Automobile Liability: shall include owned, hired, and non -owned vehicles on an occurrence basis with coverage of at least $1,000,000 per occurrence. 2.3 Workers Compensation Insurance: shall be maintained during the such Work to oornply wiih:statutory limits for all employees. 3 Endorsements. Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: 3.1 The Contractor's insurance coverage shall be primary insurance with respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of the Contractor's insurance and shall not contribute to it. 3.2 Contractor, through policy endorsement, shall waive its rights of subrogation against the City for all claims and suits. 3.3 That the coverage shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 60 Page 110 ITEM PH-1 3.4 The Contractor's insurance shall name the City as an additional insured, and other Persons to whom the City is obligated under separate agreement or by Law, to protect or insure as an additional insured, from and against Liabilities arising out of Work performed in the Right -of -Way under a grant of authority of the City. 3.5 The Contractor's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 2417. 3.6 The insurance coverages and limits provided herein shall not be canceled or reduced, nor the intention not to renew .be stated so as to be out of compliance with the requirements herein without third -�3 days written notice, certified mail, return receipt requested, first being given to the pity. jfthe insurance is canceled or reduced in coverage, Franchisee shall provide a replacement policy. 4 Acceptability of Insurers. Each insurance policy required herein shall be issued by financially sound insurers who: may lawfullv do business :in the State of Washington with a financial strength rating at all times "A-" and in a financial size category of no less than Rating Guide" published by A.M Best Company. ha coverage, the insurer does not meet the fofegoing Stan( notice to the City and shall seek coverage: rpm an standards. The City reserves the right to change the r, upon the changed risks or availability of'bther suitable: ag coverage o .no less than an in the latest edition of `Best's event that at any time during , Contractor shall give prompt e'er that meets the foregoing or the rating guide depending -eliable rating guides. 5 Veri&ation of*Coverage. The Franchisee' shall furnish the City with Contractors' signed 'certificates of insurance and a copy of the amendatory endorsements, including,,*- not necessarily hinii ,the additional insured endorsement, evidencing the Automobile Liability, and oriunercial eneral liability policies of the Contractors. The certificate for each irlSurance policy is to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard forms or on such forms as are consistent with standard industry practices. 6 eductible. Commercial General Liability Insurance policies and coverage required herein inay'include a reasonable deductible not to exceed % of the minimum per occurrence toffirnercial general liablity policy limits; provided, however, that if Contractor elects to include any deductible, Contractor shall itself directly cover, in lieu of insurance, any and all City Liabilities that would otherwise in accordance with the provisions of these requirements be covered by Contactors insurance if Contractor elected not to include a deductible. Such direct coverage by Contractor shall be in an amount equal to the amount of Contractor's actual deductible. 7 No Limitation. Contractor's maintenance of insurance policies required by herein shall not be construed to excuse unfaithful performance by Franchisee or limit the liability of Franchisee or contractor to the coverage provided in the insurance policies, or otherwise limit the City's recourse to any other remedy available at law or in equity. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 61 Page111 ITEM PH-1 8 Modifications of Coverages and Limits. The City reserves the right, during the term of the Franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures; provided that the City may not require other insurance limits or change the policy limits for Franchisee's Contractors and/or Subcontractors unless the City contemporaneously makes comparable changes to the insurance requirements for other franchisee's with comparable franchises, services and installations in the Right -of -Way. Prior to imposing such additional coverage or adjusting existing required coverages or limits, the City shall,.provide reasonable notice to the Franchisee and an opportunity to provide comment,` and the City shall review and consider such comments that are timely made. ATC Outdoor DAS Franchise Draft for Public Hearing 10/05/10 62 Page 112 3 AIR Wj swam evig MOM �3 is .4 rell s �..�.. p IN Alto,; low ' '• +* . MW z Medina City Council Regular Meeting ITEM PH-2/013-2 Monday, October 11°2010 AGENDA BILL An Ordinance Amending Section 12L08��� 0N0NK� ��U��m�t�����w�����m ' . '-- � Suof Interim Arterial Street Design Standards ' `� ��� ����i�n� �� Pu�ioH�h� i w�`���x�' �� Consent �� �~ � City Council Business El Resolution El Other -Discussion | Robert Grumbach, Development Services Director �mm q@ Joe Willis, Public Works Dint � - - - ( --_-_-_-�' / | At the August um council memtng, the issue of a more formal ntmagtoca9e in Medina was � discussed. This subject was raised in part due to the SR 520 project where improvements � � associated with the construction of the freeway will spill over onto City streets. VV8DC}T and ' | their design/ build contractor will follow state design standards inside the SR 520 right-of-way, � but where they impact City etnyntn the City standards vvU| govern. (�urrent|y, the City does not ' / . ^ � . � have adopted street design standards. Without them, VVG[JOTielikely bodefault totheir design | /manual instead ofstreets being designed the way Medina wants. � � An ordinance containing interim adaha| street design standards has been prepared. Adoption � of street design standards will establish a uniform standard for everyone to follow. The City ' Engineer has proposed street design standards for Medina based on the City of Bellevue` Transportation Department Design Manual, but modified to �t Medina. The Planning � � . Commission reviewed the ordinance attheir September 28 meeting and voted to naoonnmand ! the City � � ^ � � Note: the street design standards are anticipated to be short-term only. Following a | � comprehensive plan amendment process, permanent street design standards are anticipated tm | � be developed consistent with new goals and policies for consideration by the City Council. ! 1. Proposed Ordinance ` Budget/Fiscal� No Staff . Move toapprove adopting anordinance mfthe City ofMedina amending � Proposed .Section 12.08.O3Oofthe Medina Municipal Code relating tothe adoption Council Motion: of interim arterial street desig,!I_�tandards. Pego114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 ITEM PH-2/ OB-2 Ordinance No. AN ORDINANCE OF THE CITY OF MEDINA, WASHINGTON AMENDING SECTION 12.08.030 OF THE MEDINA MUNICIPAL CODE RELATING TO THE ADOPTION OF INTERIM ARTERIAL STREET DESIGN STANDARDS WHEREAS, the City of Medina is classified as a non -charter code City under title 35A RCW; and WHEREAS, RCW 35A.47.020 sets forth regulations for code cities for the acquisition, construction, maintenance, use and vacation of city streets, sidewalks and in the design standards thereto; and WHEREAS, the City Council wishes to promote uniform and standardized street construction with the city; and WHEREAS, the Medina Comprehensive Plan sets forth the goal of maintaining existing roadway surfaces; and WHEREAS, Policy T-P2.5 of the Medina Comprehensive Plan states that pedestrian and non -motorized improvements should be designed and prioritized to improve pedestrian and non -motorized safety; WHEREAS, pursuant to RCW 36.70A.106, a notice of intent to adopt was transmitted to the Washington State Department of Commerce on September 14, 2010, and expedited review was granted on September 29, 2010; and WHEREAS, the planning commission at their September 28, 2010, meeting voted to recommend approval of the ordinance on interim arterial street standards; and WHEREAS, the city council provided notice and held a public hearing on October 11, 2010, to receive public testimony for and against the proposed code amendment; and WHEREAS, a State Environmental Policy Act (SEPA) threshold Determination of Nonsignificance (DNS) for the proposed code amendment was issued on September 24,2010, pursuant to WAC 197-11-340(1). NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA, WASHINGTON, DO ORDAIN AS FOLLOWS Section 1. A new Section 12.08.035 of the Medina Municipal Code is hereby adopted to read as follows: 1 of 2 Page115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ITEM PH-2/ 013-2 12.08.035 Interim street design standards. A. The engineering street standard details set forth in "Attachment X of Ordinance No. are adopted as the interim Medina street design standards. B. The City Engineer may approve deviations in writing from the engineering standards provided: 1. The deviation is necessary due to geotechnical, topographical, or other physical constraints; 2. The public safety and welfare will not be adversely impacted by the deviation; and 3. The deviation will not detract from the intent and purpose of this chapter or the engineering standards. C. The City Engineer may adopt and incorporate by reference into the Medina street design standards other federal, state and local design standards and specifications and other professionally accepted engineering standards and specifications. Section 2. Severability. If any section, sentence, clause, or phrase of this ordinance should be held to be If or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of any other section, sentence, clause, or phrase of this ordinance. Section 3. Effective Date. This ordinance shall take effect five (5) days after its publication or the publication of a summary of its intent and contents. PASSED BY THE CITY COUNCIL ON THIS DAY OF , 2010 AND SIGNED IN AUTHENTICATION OF ITS PASSAGE ON THE DAY OF , 2010. Approved as to form: Bruce Disend, City Attorney 2of2 Mayor Attest: Rachel Baker, City Clerk Page 116 ATTACHMENT A Ordinance No. m> ctryo� c� S 0 _ mG] m �� >m O f�Tlmm m CD o �o �rrryxx��7 0o Z Ma m fA> 17�D z0 ymz pA m RK Zp m4-1 v mo r' `lN Orn .1 $� > 0 D D (n � 'b - M OY� m JD D r- 9 F E7N 0— =04 2 c m 0 z� m W- DC m - r r- m D mi _p C 4 lr mz m mzz omrn zo �o — v v I m 0 a u0i zul r- � yD�� t- C X v EU r� 0 = a i > (n -o D > z m �^ m rn (A a r < m w m m --- tom— �— —rF) 00 N zi (A rn o En z m rr1 {mn 6- z o m z m D � ,mo mrn cmi m _ N 0i - 5� � m `. zD m o FN v m riD K4t a coo< F mo m zm �- � �� m m m O� -1 V nZ z 'v �l(7 0 m:rzco W Q m m tD (n *i m m !dd raj `S Ti_ P - n z 0 � Ln ATTACHMENT A Ordinance No. "14 B 4%S2 ;u oo z CD rn rh 0 !1! ,�6 m r:n IF 0 W-2 T z ❑ to O Ca z ;u CA — (A m Fn 13 m � ❑ CY! -m omz z =3 '0'* 2 >>t wb 0 -F MA 0 z 22 Wo Cn In > m SOO (A f m ;D 0 - m Z-1 0 —4p S2 :3 zmp z �A- En Cnp CTM L to ZmZ of z z w CID 0 CD 0 Cn -4 ❑ � W *Mzll 0 w U {� m a m C/) > flz-n C= > OM moo zb� -< ;D:d CZ > -'g? , 2 q 3; 2 r- Z rrl z 0 WO Z M 0 > C ;u -1 m -0-9 F al z < > b a vz > PZ ZA F U, CA 9 &1 Rom >* w z 0 z 0 z z;u T 3: (n z > w 0 P z z rwl r- avu llu ATTACHMENT A Ordinance No. �a�ro SEE NOTES 6 & 7 mn m� I o N -++ a, �4 o So 0° Qaz �2G 3' MIN v� x a O A 07- mN �� �� �°F mm iTiz "0 - W n c, o� zm 5dz 40 oa �� v� po sn�3 p a� �'D 0 mz v{vi > z o0 � w � go v � o Z• ��g 8 m o �� v .ram �m o r4i to ��o m C7 m� mm v p ��z nn� rgi c� Ul 0 x Qzv i 9Zr o o o -ca rn ° -t p CA 1= CD 0 o o o z D c�ii z x z c D iu y n, F d z�mw �..x 14M corn a 0 rn y m o� bus � m� En �� r n n rn c c -m o Imo v m rn .: m rr*- g m v zv z C.�a D $ m 2 C) m9- z 0 z z a D D vl-lA ` z m SEE NOTE 6 o nnp+ a rr1 �i a c > C: g x m 'Si F ism pp O 9 C7 -pC Try 12 p (11 m z �+ Page 119 ATTACHMENT A Ordinance No. �m� �$ " <�En C Ot � SEE NOTE01 r O S Ln � mo � m D rm_ z mTTImm '� s >rtl c n >T > T m: p�O 70 m�rj mA mm1 m n p r o p'^ 0 Z M W m m Z �? p z Z O m Dm v Z cn Q — — _ - — Q pa0 �c�Xg FOOD mlmx �m Omc >mm{> r 00v> ��z0 rl coG> C m4 m0> zmm Mn� ow �Cmx � �mm� cmm �tm mrn oW*m co Qmncn mo G'D �:n� > > >Q (n v g� m(n r�1pT � '*t 0- 0 p� 0U7 mw �0g ZOm(n m0 Z _q �QQVI C(nUfr > > �m �1NZ� AD m m �Or rr00 >OFM = -M m { -i Om QaoOm rOOUI > hm -,a c�-4 ammm m m v m m z> o 1m- 'A 'cD =(>jN Dr� mr-�ip OXav v m 0 0 ''�� Owo OA�� ��p1 C zp mf��1 p¢Omo > ((A D m5> cmF m > rn Duz�v z czi m Oz 0 1 U)> z> (nr9�tr j� v a> z 50m o0�rn �o� (A m >z -ri> � � ��ymm mm�r W �ruriA a56- 0 Ov mma rnz(A mm{--� Zrp m m C P" 0 m A 0 a m C p m m�� <r4 --I N Z v (�' fl m > p p UZ Qrm m > (A � m � m Paae120 p r � m umy j _ ro D�� � c m o � (^ � v m r �r v N m z � � fTl Z N Q �' s D � L7 ee pG > > C � C� g�g � � D f �' O "�z 0 A tcd S r tJ') W m p n N m � > � N m � o G � Q n n ATTACHMENT A Ordinance No. 0 C'? D r 0 0 N O z rn CD rn z m D 0 O z C� rm rn D z v D U) "0 D r D r D s � �C3 Medina City Council Regular Meeting ITEM PH-3/013-3 Monday, October 11, 2010 AGENDA BILL Subject: 2011 Preliminary Budget ❑ Category: Consent ElOrdinance ® Public Hearing ❑ City Council Business ❑ Resolution ® Other -Discussion Prepared By _ Nance Adams, Finance Director Summary: At the September 13, 2010 Council meeting City Council directed staff to continue to look for additional 1-2% budget cuts and potential revenue options. The attached documents have been updated with the latest September 2010 revenues and expenditures, revised forecasts based on the September numbers, additional cuts, and information related to utility tax and franchise fees. This budget addresses the long standing structural difficulties in the City's budget, whereby ongoing revenues have not met ongoing expenditures. Council has an opportunity to create a sustainable budget. This will be a structural change where expenditures have been cut to a minimum and revenues will potentially need to be diversified through utility taxes and franchises fees. Assumptions Revenues: Relatively flat economy with very slow recovery. • 1 % property tax increase, including new construction plus banked capacity per King County assessor's office. • Sales tax revenues based on actual receipts for the last 12 months taking into consideration a full 24 month history. • Building activity to be relatively flat, but an increase in permit fees adopted for 2011 based on updated actual costs of services. Expenditures: • (9.6%) reduction of operating expenses in the General Fund for 2011. No cost of living increases per bargaining unit contracts, however a few step increases for 2011 are included per contract. $41,000 for continuation of the permit software upgrade will be carried forward from 2010. • $8,363 (1 %) increase for Fire & Medical Aid Services in 2011. • Transfers $245,000 to Street Fund for operations. • Equipment Replacement Fund has been eliminated by placing the cost for the police vehicle back in to the police department. Additional Budget Cuts As of September 13, departments had cut 6.4% from the general fund. Since then, at the direction of Council, an additional 3.2% has been cut by the operating departments for a total average of 9.6% cut in the general fund. (see attachment A) With almost 10% cuts in expenditures and updated revenues forecast, ongoing operating expenditures are projected to exceed ongoing revenues by approximately $550,000. These line item cuts will not result in reduction of staff or major services, but there is no contingency for unforeseen occurrences and expenditures that very often take place during the year. Page 122 Medina City Council Regular Meeting ITEM PH-3/013-3 Monday, October 11, 2010 New Revenues Attachment B provides the maximum the City is allowed to impose by RCW along with a summary of estimated revenues for both utility taxes and franchise fees. Each utility has been contacted directly for revenue estimates. The estimated cost per household is $102 per year for every 1 % of utility tax and franchise fee creating a total annual revenue to the city of $120,159. Using the rates charged in neighboring cities and most Washington cities would result in $676,020 annual revenue or $575 per household each year. Attachments: 1. 2011 Comparative Summary by Fund (2 pages) 2. Operating Expense Reductions (attachment A) 3. Revenue options (attachment B) 4. Budget line item detail 5. Draft Utility tax ordinance 6. Draft Franchise fee ordinance __Au Aet/I iscal Impact: Discussion and direction on the amount of utility tax and franchise Staff Recommendation: fees. Citv Manaqer Approval: I move to direct the city manager to bring the draft ordinances related Proposed to utility tax and franchise fees at the proposed rates of for Council Motion: utility tax and for franchise fees. Page123 Medina City Council Regular Meeting ITEM OB-4 Monday, October 11, 2010 AGENDA BILL Subject: 2011 Fee Schedule Category: ❑ Consent ❑ Ordinance ❑ Public Hearing ® City Council Business ❑ Resolution ❑ Other -Discussion Prepared Robert Grumbach, Development Services Director By: Rachel Baker, Central Services Director Summary. Prudent fiscal policy requires that the City annually review fees charged for services and make adjustments to ensure the proper cost recovery for those services. The City's current fee schedule was adopted April 2009. In preparation for the 2011 annual review, a user fee study was conducted by staff to evaluate if permit fees were established at a level that fully recovered the cost of providing permitting and development services by the City. The study analyzed direct and indirect costs and utilized 2011 preliminary budget numbers to project what the City's cost for providing these services would be in 2011. Suggested fee rates were than adjusted to fully recover these costs. To achieve full cost recovery for permitting and development services, the study concluded: • Building permit fees should be raised by 32.5 percent; • Mechanical permit fees should be raised by an average of 92 percent for per unit permit fees; • Grading and drainage permit fees should be adjusted to reduce overall revenues generated by these fees by 30 percent; • Zoning, shoreline, construction mitigation, and tree permit fees should be raised over a wide range of 3 percent to 120 percent; and A new technology fee should be established to recover expenditures for permit tracking software. The suggested fee increases are significant because historically costs associated with fire prevention, overhead costs, and supporting costs from non -building and planning staff have not been considered in permit fees. An important policy question is whether increasing fees to capture these costs should be done all at once, or whether a phased approach to increasing fees is preferred. The attached draft fee schedule shows increasing fees to capture these costs all at once. However, the fee study offers some alternatives. Depending on the fee increases implemented, permit fees are projected to generate revenues between $359,000 and $485,000 next year. Additionally, proposed fees for notary services have been increased from $8.00 to $10.00 per act/stamp, which is the maximum allowed by WAC 308-30-020; a replacement concealed weapon permit fee of $10.00 has been added, and fees for police accident and incident reports have been updated to $0.15 per page. Attachments: 1. Draft 2011 Fee Schedule 2. Permitting Services User Fee Study BudgeVFiscal Impact: To be determined Staff _Recommendation: Im lement fee increases as proposed in the draft 2011 fee schedule City Manager Proposed Council Motion:' Direction for fee schedule preparation. Page124 ITEM OB-4 CITY OF MEDINA 2011 FEE SCHEDULE rvri Audio Duplications First CD: No Charge Section Subsequent CD's: $5.00 ea 2.48.100 Construction Blueprints and Plan Actual Vendor Cost Section Copies 2.48.100 Copies $0.15 per page Section 2.48.100 City Maps $12.00 Section Black & White 18 X 38 2.48.100 City Maps $45.00 Section Color 18 X 38 2.48.100 Ordinances, Resolutions & First Copy Free; Subsequent Copies Section Notices of Decision $0.15 per page 2.48.100 {, ME r Ok Section Hearing Examiner Fee $1,400 2 78 120 w Accident Reports/ ^eeident °,.peFts $4.50 y0.15 a e Updated Section Incident Reports Incident Repeft&�0.15 a e 3.64.010 Fingerprinting $6.00 peF set $10.00 per card Updated Section 3 64.010 Case Filing $31.00 per case Section 4.01.120 Certifying any document on file $5.00 per document, plus $0.10 per Section page for copies 4.01.120 Day Detention $10.00 per day, unless another amount Section is set by Court order 4.01.120 Duplication of part or all of the $10.00 per tape Section electronic tape of a proceeding 4.01.120 Electronic Home Detention $25.00 set-up, plus $105.00 per week, Section unless another amount is set by Court 4.01.120 order Failure to Respond $25.00 for parking cases Section $52.00 for infraction cases 4.01.120 Juror Service Fee $10.00 per day, plus mileage in the Section amount set by RCW 43.03.060 4.01.110 Non -Sufficient Funds Fee for $25.00 per check Section Returned Checks 4.01.120 Page125 DRAFT ITEM OB-4 FEE TYPE . ,UNIT_ IVIMC SECTION Preparing the record of a case for $40.00 per case, plus Superior Court Section appeal to Superior Court Filing Fee 4.01.120 Probation Fee $50.00 per month Section 4.01.120 Proof of Insurance $25.00 per case Section Card/Administrative Dismissal 4.01.120 Stop Payment Fee for Court $25.00 per check Section Issued Checks 4.01.120 Transcript of Judgment $6.00 per judgment Section 4.01.120 Vehicle Impound Hearing Fee $31.00 per case Section 4.01.120 Witness Fee $10.00 per day, plus mileage in the Section amount set by RCW 43.03.060. Expert 4.01.100 witnesses may be paid in excess of this amount only upon prior agreement between the City and the Expert Witness. Work Release $25.00 set-up, plus $20.00 per day, Section unless another amount is set by Court 4.01.120 order `=�-5' c-'pw„i'�, u`#, .n. 1 -Y« .• ga `` _ i� Cable Franchise Negotiated with Franchisee Section 5.08.060 g7pg Animal Impound Fee Fees as adopted by King County Code Section Title 11 6.04.030 Cat License — Lifetime $20.00 Section spayed/neutered 6.04.040 Cat License — Lifetime $40.00 Section unspayed/unneutered 6.04.040 Dog License — Lifetime $30.00 Section spayed/neutered 6.04.040 Dog License — Lifetime $60.00 Section unspayed/unnueutered 6.04.040 Replacement Tag $5.00 Section 6.04.040 Service Animal License No Charge Section 6.04.040 0-4 EMPIRE, ON 711,11 ..., OUR . Temporary Noise Variance $200.00 New Section 8.06.010 Technical Noise Variance $200.00 plus consultant fee New Section 8.06.010 Economic Noise Variance $200.00 plus consultant fee New Section 8.06.010 Page126 D1 :" A i ITEM 013-4 FEE TYPE AMOU I NT IVIIVIC SECTION 2 "M False Alarm Response Fee 1" response — Free Section 2 nd response - $50.00 8.12.030 3 rd response - $100.00 4 1h response - $150.00 51h response - $200.00 6 1h & subseq - $250.00 Home Security System No charge Section Registration 8.12.030 SM- M -77% , ' ... 06�" , 4 011PAR, a 1 115 M W 5 WWI 16;" I - N-m-M-111-11 Pyrotechnics Display License No charge Section 8.16.045 NP, A Q NMI $50.00 non-refundable, plus cost for Section Special Event Permit city personnel based on hourly rate 9.40.050 (wages and benefits). Of NINE wm� xy A Parking Permit for Designated No charge for residents Section Parking Areas $75.00 for non-residents 10.40.060 Temporary Construction Parking $150.00 Section Permit 10.72.040 M JIMP" 0W -70, W R MR, om Construction Vehicle Parking See Temporary Construction Parking Section Permit Permit 10.72.030 Oversized Vehicle Permit $500.00 Section 10.72.010 Overweight Vehicle Permit $500.00 Section 10.72.010 Tracked, spiked, cleated, lugged $750.00 Section vehicle permit 10.72.020 gg - r g 17A AR 2 7, gg� I '�K RONNE Ag g'w AWW Sir -pet Excavation/Trench Cut $259.9()refuRd-a-We, feF Updated Section PIUS GeSt Right-of-way Permit Gity inspeOeFS based en hOUFIV Fate 12.06.02-904 (wages & benefits) ef the 0 emplayee(s) nyelyed $270.00 plus consultant fee seetoen 1-W ifi WzF Right-of-way Use Permit $150.00 $270.00 plus consultant fee Updated Section 12.08.010 T. Mao -Mm"Fe", 77" WEREM Mm M" M-7 gw_- ag- PON, mom Building Moving Permit See Table A Updated Section 12.10 V_N W plan= BINS,, ,�MK Hazardous Tree Evaluation $300.00 per visit plus $100.00 per hour Ok Section 12.28 for a visit over 2 Y2 hours I I Page 127 DRAFT ITEM OB-4 FEE TYPE AMOONT SECTIONMIVIC t100 nn plus , ultantfee Updated Section 12.28 Petit $750.00 plus consultant fee when Administrative Tree Removal/ associated with development Trimming Permit $150.00 plus consultant fee when not associated with development Updated Section 12.28 $1,500.00 plus consultant fee when associated with development S^ 28 Non -Administrative Tree Removal/ Trimming Permit 'NEW . Section Garage Sale Permit No charge 12.36.010 gz MR Section Blanket Utility Permit $500.00, plus consultant fees 13.12.040 H Moved Sec -tier Moved cP 10t hi -Re tea:.........,.... Moved SeGtie+g i4.94.910 , Moved Seeder 1A nA n1n 1'T.VT.'PSv Sper.1alcmrUse -r Per -Mot �P $ ,nnn nn .J„! G , �f.,., 1taAt 6 Moved :Sec-%ieA 1A l A n�o C1 nnn nn plus . .-WaRt fpp , Moved Sec-t+eR Il 9 19242wse Moved S^ .7-8 ^,'-s`"t',, s' sa '" »ciyry i*.ycM1 Y xx Administrative Variance Permit $509 89 $750.00 plus consultant fees Updated Section 14.08.010 Administrative Special Use Permit $599.09 $750.00 plus consultant fees Updated Section 14.08.010 Minor Deviation $509.09 $750.00 plus consultant fees Updated Section 14.08.010 'g' 3 L 1. ":'. `•2' 4 7Lv`' b.K d3> r_,'f4g fix*. � `N+ f , +k`� 353. 33;sw'Y`'eY'+3- „+ Section Site Plan Review Fee $1,999.99 $1,150.00 plus consultant Updated fees 14.12.040 Revision of Site Plan $500.00, plus consultant fees Ok Section 14.12.050 Page128 DRAFT ITEM OB-4 FEE TYPE AMOUNT SECTION y + BuildiAg Pe ntta A Moved SeetieA Att-,. Rtt ,Qp Moved SPr-*iee 15.0 019 Moved Seetiee Building Moving PeFmit C1159 99 plus staff/ :+.,.,� .� Moved Seet*ee 1 c nano By ME 07 Tailored Construction Mitigation pr0-99 $370.00 plus consultant fees Updated Section Plan — Level 1 15.20.010 Tailored Construction Mitigation $1,099.00 $1,800 plus consultant fees Updated Section Plan — Level 2 15.20.010 h� rWIN.�. �M shaFt Plat c1 200.00 PIUS „ltant F^ Moved Section 16.04.030 IN MWINI, ��, ... $3,009.00 plus $50.00 peF let PIUS Moved Section 16.08.040 E . Accessory Dwelling Unit $175.00, plus consulting fees Ok Section Registration Fee 17.50.040(E) u .. Special Use Permit — Satellite $100.00 Ok Section Receiving System 17.52.060(B) NO ."WhADA. . _ ur Section Adult Family Home Permit No charge 17.64.020(A) Section Family Day Care Permit No charge 17.64.020(B) c'�9 Delete SeetieR 3;Z.64:020 House Trailer Occupancy Permit $10.00 Ok Section 17.68.040(D) ;- Sign Impound Fee $25.00 Ok Section 17.80.140 Sign Permit $199.99 plus fees See Updated Section Building Permit Fees and Conditional 17.80.100(B) Use Permit Fees Page129 DRAFT ITEM OB-4 FEE TYPE AI�OUNT MIVIC SECTION axi Waterfront Construction Fee $50.00 Ok Section 17.88.020 N Imam +� 5,000.00 Delete _�. . gg, % M I 01 Reclassification of Zoning District $2,999.99 $2,200.00 plus consultant Updated Section 17.94 fees Historical Use Permit & $859.99 $2,000.00 plus consultant fees Updated Chapters Amendments 17.94 & 17.56A t _ Own Environmental Exemption (SEPA $100.00 Ok Section & Shoreline) 18.04.010 Environmental Threshold $500.00 $700.00 plus consultant fee Updated Section Determination 18.04.010 Environmental Impact Statement Staff hourly fee, plus consultant fee Ok Chapter 17.04.010 �.. ',-:�,� �`- s h sz��..�., _ �: a�"s"""'' Critical Areas Review $50.99 $135.00 plus consultant costs Updated Chapter 18.12 Telecommunication ROW Use $500.00 at submittal plus $2,500 if New Section accepted for negotiations Authorization 19.04.020 Telecommunication Franchise $500.00 at submittal plus $2,500 if New Section Agreement accepted for negotiations 19.06.020 Facilities Lease $500.00 at submittal plus $2,500 if New Section accepted for negotiations 19.08.020 _-. 77 Building Permits See Table A Updated Section 20.40.040 Mechanical Permits See Table B Updated Section 20.40.040 Grading & Drainage Permits See Table C Updated Section 20.40.040 AMR_ Lot Line Adjustment $775.00 plus consultant fee Updated Section 20.73.060 Short Subdivision/ Revision to an $2,100.00 plus consultant fee Updated Section approved Short Subdivision 20.73.060 Preliminary Subdivision/ Revision $5,520 + 100 per lot plus consultant fee Updated Section to an approved Subdivision 20.73.060 Final Subdivision $1,400 plus consultant fee New Section 20.73.060 Page 130 DRAFT ITEM OB-4 SECTIONMIVIC IN RM Non -administrative Conditional $2,000.00 plus consultant fee Updated Chapter Use Permit 20.80 Non -administrative Special Use $2,000.00 plus consultant fee Updated Chapter Permit 20.80 Non -administrative Variance $2,000.00 plus consultant fee Updated Chapter 20.80 Temporary Use Permit $500.00 plus consultant fee New Chapter 20.80 Substantial Development Permit $2,200.00 plus consultant fee Updated Chapter 20.80 Shoreline Conditional Use Permit $2,200.00 plus consultant fee Updated Chapter 20.80 Shoreline Variance $2,200.00 plus consultant fee Updated Chapter 20.80 Amendment to Shoreline Permit $500.00 plus consultant fee New Chapter 20.80 Shoreline Exemption $200.00 Updated Chapter 20.80 Zoning Code Interpretation $500.00 New Chapter 20.80 Shoreline Master Program $500.00 New Chapter Interpretation 20.80 Administrative Appeal $750.00 Updated Section 20.80.230 Comprehensive Plan $4,000.00 Amendment Fee Concealed Weapon Permit $55.25 Original RCW $32.00 Renewal 9.41.070 $42.00 Late Renewal $10.00 Replacement Notary Service $949 $10.00 per notarial act/stamp Updated WAC-308-30- 020 Passport Acceptance Fee $25.00 per application 22 USC 214 Permit Replacement $100.00 Reconsideration of a Hearing $500.00 plus hourly fee for hearing Updated Examiner Decision examiner Re -Roof Permit $175.00 Zoning Ordinance Amendment $4,000.00 Technology Fee for Software $19.75 per permit New Page 131 ITEM OB-4 TABLE A - BUILDING PERMIT FEES TOTAL vALUATION FEE $1.00 TO $500.00 $33.50 $501.00 TO $2,000.00 $33.50 for the first $500.00, plus $4.25 for each additional $100.00, or fraction thereof, to and including $2,000.00. $2,001.00 TO $25,000.00 $97.25 for the first $2,000.00 plus $19.55 for each additional $1,000.00 or fraction thereof, to and including $25,000.00. $25,001.00 TO $50,000.00 $546.90 for the first $25,000.00 plus $14.60 for each additional $1,000.00 or fraction thereof, to and including $50,000.00. $50,001.00 TO $100,000.00 $911.90 for the first $50,000.00 plus $9.94 for each additional $1,000.00 or fraction thereof, to and including $100,000.00. $100,001.00 TO $500,000.00 $1,408.90 for the first $100,000.00 plus $7.95 for each additional $1,000.00 or fraction thereof, to and including $500,000.00. $500,001.00 TO $1,000,000.00 $4,588.90 for the first $500,000.00 plus $6.63 for each additional $1,000.00 or fraction thereof, to and including $1,000,000.00. $1,000,001.00 AND UP $7,903.90 for the first $1,000,000.00 plus $4.44 for each additional $1,000.00 or fraction thereof. DEMOLITION OF EXISTING STRUCTURE ....................................... $133.00 PLUS BUILDING OFFICIAL HOURLY FEE PERMIT EXTENSION PRIOR TO ISSUANCE ................................... $75.00 PER WRITTEN REQUEST RELOCATE/ MOVE A BUILDING INTO CITY .................................... $133.00 PLUS BUILDING OFFICIAL HOURLY FEE INITIAL PLAN REVIEW................................................................. 65% OF PERMIT FEE ADDITIONAL REVIEW OF CORRECTIONS, REVISIONS ........................ BUILDING OFFICIAL HOURLY FEE REVIEW OF DEFERRED ITEMS ........................................................ BUILDING OFFICIAL HOURLY FEE ONE INSPECTION & ONE RE -INSPECTION .................................... INCLUDED IN PERMIT FEE ADDITIONAL RE -INSPECTIONS FOR COMPLIANCE ........................ CONSULTANT AND/ OR BUILDING OFFICIAL HOURLY FEE WORK NOT READY FOR INSPECTION WHEN SCHEDULED ............. CONSULTANT AND/ OR BUILDING OFFICIAL HOURLY FEE INSPECTIONS FOR WHICH NO FEE IS SPECIFIED .......................... CONSULTANT AND/ OR BUILDING OFFICIAL HOURLY FEE WORK STARTED WITHOUT A PERMIT ........................................... FEE IN THE AMOUNT OF PERMIT FEE, BUT NOT LESS THAN $133.00 BUILDING OFFICIAL HOURLY RATE .............................................. $52.40 STATE SURCHARGE FEE............................................................ $4.50 PER PERMIT A DEPOSIT FOR CONSULTANT COSTS MAY BE REQUIRED PER CHAPTER 17.44 MMC......................... TBD Note: Red represents changes in the table. Page 132 DRAFT TABLE B - MECHANICAL PERMIT FEES ITEM OB-4 TYPE OF BASE FEE Issuance of each permit $43.00 Issuance of supplemental permit, for which original permit expired Same as new Land use site review fee where applicable) $100.00 UNIT FEE SCHEDULE Includes Installation and Relocation Furnace/ Central Heating System 150,000 BTU or less Forced air system $30.00 each 150,000 BTU or less re -circulating hot water system(including vents and flues $55.50 each Greater than 150,000 BTU See Schedule A Hot Water Heating System $ 30.00 each Heat Pump/ Air conditioning $55.50 each Suspended, recessed wall or floor -mounted heater unit/ fireplace, log lighter $30.00 each Boilers and any other single unit or system with an input in excess of 150,000 BTU See Schedule A Exhaust fan or appliance vent $30.00 each Solar, geothermal, wind and similar mechanical systems See Schedule A Other appliances, piece of equipment or system which is regulated by this code but not set forth in this schedule, or for which no other fee is listed $30.00 each OTHER FEES Plan review See Schedule A Additional re -inspections $30.00 per inspection Additional review of corrections, revisions, or additions Building Official hourly fee Work not ready for inspection when scheduled $45.00 Fees above include final inspection and one final re -inspection Note: Red represents changes in the table. Page 133 DRAFT ITEM 013-4 TABLE C - GRADING & DRAINAGE PERMIT 25 TO 100 cubic yards $250 plus consultant costs 101 TO 2,000 cubic yards $250 for the first 100 yards and $24.50 for each additional 100 cubic yards or fraction thereof, to and including 2,000 cubic yards; plus consultant costs 2,001 cubic yards and up $715.50 for the first 2,000 cubic yards and $25.00 for each additional 100 cubic yards or fraction thereof plus consultant costs FEES ABOVE INCLUDE FINAL INSPECTION AND ONE FINAL RE -INSPECTION ADDITIONAL INSPECTIONS, INCLUDING WET SEASON TESC INSPECTIONS, ARE CHARGED AT THE CONSULTANT COSTS INSPECTIONS FOR WHICH NO FEE IS SPECIFICALLY INDICATED ARE CHARGED AT THE CONSULTANT COSTS A DEPOSIT FOR CONSULTANT COSTS IS REQUIRED PER CHAPTER 17.44 MMC Note: Red represents changes in the table. Page134 Final Permitting Services User Fee Study September 30, 2010 REPORT SUMMARY: City staff performed a study of the cost of providing permitting and development services and the fees charged to recover that cost. The study found that, except for grading and drainage permits, all development fees currently charged by the City are below their full cost level. To obtain full cost levels the following are recommended for implementation: • Raise building permit fees by 32.5 percent; • Raise mechanical per unit permit fees an average of 92 percent; • Adjust grading and drainage permit fees to reduce revenues from these permits by 30 percent; • Raise the zoning, shoreline, construction mitigation and tree permit fees between 3 to 120 percent; and • Add a new technology fee to recover expenditures on permit tracking software. INTRODUCTION: The general policy of the City is that permit fees should be established at a level to reasonably cover the cost of providing services associated with permitting and development review. This study provides an analysis identifying the full cost of these services to the City and the fees collected by the City to pay for these services. The purpose is to establish recommendations for adjusting permitting fees in 2011 consistent with the City's general policy. This report utilizes budget documents, financial reports, consultant invoices, and time estimates by City staff spent on permitting and development related activity to evaluate cost recovery. ORGANIZATIONAL BACKGROUND: The City of Medina is uniquely organized in how it provides permitting and development services. The City makes extensive use of consultants to perform much of the land use, engineering, right-of-way, construction mitigation, and tree code compliance review. Three employees in the Development Services Department coordinate and manage project permit review, and perform the more complicated land use and all building code compliance review, as well as customer service and enforcement duties. The department is supplemented by other City staffers that provide direct and indirect support. Building inspection services are provided by an inter -local agreement with Clyde Hill, and fire code compliance services are provided by the City of Bellevue's Fire Marshall's office per an inter -local agreement. BACKGROUND FOR FEES: RCW 82.02.020 authorizes the City to collect "reasonable fees from an applicant for a permit or other governmental approval to cover the cost of processing applications, inspecting and reviewing plans, or preparing detailed environmental (SEPA) documentation. Permit fees may include direct and indirect costs incurred. Direct costs include those for FTE employees directly Permitting Services User Fee Study 1 Page 135 Final involved with processing, inspecting and reviewing permit applications. Indirect costs may include reasonable overhead expenses for: • Personnel support services, including payroll for employees working on permits. • Capital expenditures to facilitate those employees accomplishing their jobs. • Computer hardware and software, billing software, and payroll software used for employees who process permits. • Time for questions from the public or developers relating to permit applications. • Time for investigating and mediating complaints relating to permit applications. • City Attorney time giving advice regarding specific permit applications or permit processing procedures in general. Time spent on general government matters not relating to permit processing including legislative actions involving policy -making on comprehensive plans, land use codes, and growth management policies may not be included. Additionally, time and money expenditures which are only tangentially related to the permitting and development functions may not be included. It is important to recognize that the law does not require a precise correlation between costs and fees. The costs need only be reasonably related to the regulatory function and the method for allocating fees should be rational, systematic and reasonable. TOTAL COST OF SERVICE: To determine the cost of providing service, the following table presents the annual expenditures reported by the Department of Development Services. It's worth noting that throughout this report the numbers for 2010 are projected for the entire year using accruals through the end of June 2010, and the 2011 numbers are estimates based on the preliminary budget. Table 1: Total Annual Development Services Department Expenditures Year Expenditures 2007 $821,560 2008 $735,953 2009 $528,476 2010 $635,552 2011 $634,832 TABLE 1 NOTES: • Building Official converted to FTE in October 2007 • Capital expenditure for new permit software are not included above as this is a one-time expenditure that will be addressed separately As noted previously, staff time spent towards policy -making may not be counted in the cost of providing permitting and development services. Policy -making activity by the department is primarily provided by the Director in support of city council directives and the planning commission; with a few hours each month spent by the permit coordinator supporting the planning commission. The following table adjusts the annual expenditures to subtract costs associated with policy -making activity. Permitting Services User Fee Study 2 Page 136 Final Table 2: Policv-making Adiustment 2009 2010 2011 Total Department Expenditure $528,476 $635,552 $634,832 Adjustment for Director (35 percent) ($41,205) ($41,205) ($41,838) Adjustment for Shoreline Master Program ($8,588) ($61,412) ($30,000) Permit Coordinator (Planning Commission) 0 ($1,261) ($1,292) Consultant(Comp Plan Survey) $1,829 0 0 Net Department Expenditures 1 $476,854 J$531,674 1 $561,702 As noted previously direct and indirect costs of other City employees and facilities associated with permitting and development services may be included in the total cost of service. Tables 3 and 4 provide the calculated estimates of these costs annually. Table 3: Other Staff Annual Expenditures 2009/2010 2011 Expenditures Expenditure Central Services: Administrative Support (33 hr/ month) Information System (16.25 hr/ month) $21,000 $21,558 Finance: (15 hr/ month) $9,300 $9,398 Public Works (3.2 hr/ month) $1,400 $1,430 Police $540 $540 City Manager (0.25 FTE) $38,000 $38,579 Total 11 $70,240 I $71,505 TABLE 3 NOTES: • Expenditures are based on 2010 hourly rates plus benefits. Expenditures for 2011 include increase in benefit rates • Central Services - estimates are based on the number of hours spent answering calls, backup for receiving and issuing permits, handling legal notices, and informational technology services • Finance - estimates are based on processing payroll for the Department of Development Services employees • Police - average number of incidents relating to construction between 2007 and 2009 Table 4: Annual Overhead Expenditures 2009 2010 2011 Building Services - Utilities (25%) $2,806 $2,800 $2,750 Building Maintenance/ Storage Rental (25%) $5,770 $5,750 $5,525 Newspaper Legal Notices $420 $1,400 $1,000 Annual Software Maintenance Fee $6,000 $6,000 $6,000 Total 1 $14,996 1 $15,950 $15,275 TABLE 4 NOTES: • The 25 percent factor is based on Development Services Department occupying three-quarters of the top floor of the building • The expenditure for legal notices is a direct cost, but is included here for simplicity In addition to direct and indirect costs associated with staff and overhead, the City contracts with the City of Bellevue for fire services and pays an annual fee. The annual fee includes fire prevention services that cover fire code compliance associated with plan review and inspections. The annual fire prevention cost to the City is presented in the following table. Permitting Services User Fee Study 3 Page137 Final Table 5: Annual Fire Prevention Expenditures Year Expenditures 2009 $52,972 2010 $53,983 2011 $54,523 I ABLE b NOTES: • The 2009 and 2010 expenditures are calculated utilizing a population factor of 2.2509 percent per the inter -local agreement multiplied by the Bellevue Fire prevention budget • 2011 is based on a one percent increase. The following table sums up and provides the total costs of providing permitting and development services by the City. Table 6: Total Costs of Permitting and Develo Annual Department Expenditures (adjusted) Other Staff Expenditures Overhead Expenditures Fire Prevention Total Costs REVENUES GENERATED BY SERVICE: ent Services 2009 2010 2011 $476,854 $531,674 $561,702 $70,240 $70,240 $71,505 $14,996 $15,950 $15,275 $52,972 $53,983 $54,523 $615.062 1 $671.847 IS703.005 Because of the organizational structure for permitting and development services, the revenue structure to recover costs utilizes several sources. These include permit fees, pass -through consultant charges, and contracting Building Official services to Clyde Hill. The annual permit fees collected by the City are presented in the following table: Table 7: Annual Revenue from Permit Fees Year Revenue 2009 $256,114 2010 $350,000 2011 TBD TABLE 7 NOTE: The anticipated revenue to be generated by permit fees in 2011 is dependent on policy direction regarding the percentage of total cost recovery. The structure of collecting fees is such that planning, engineering, and tree code fees are collected at the time of submittal. However, building permit fees are divided into plan review fees being collected at the time of submittal and the rest of the fee is collected at the time the permit is issued. The City also collects/ refunds permit fees at the end of a project as part of reconciliation. The annual pass -through fees collected from applicants are presented in the following table. Table 8: Annual Revenue from Pass -through Fees Collected Year Revenue 2009 $156,499 2010 $168,000 2011 $192,299 Permitting Services User Fee Study 4 Page 138 Final In addition to permit fees and pass -through charges, the City has an inter -local agreement with the City of Clyde Hill to provide building official services for them. This generates some revenue which is presented in the following table. Table 9: Revenue for Building Official Services 2009 2010 2011 Revenue $14,867 $21,400 $21,000 The total annual revenue generated by permitting and development services is summarized in the following table. Table 10: Total Annual Revenue Collected 2009 2010 2011 Permit Fees $256,114 $350,000 TBD Pass -through Fees $156,499 $168,000 $192,299 Clyde Hill $14,867 $21,400 $21,000 Other Fees $2,068 $2,353 $2,000 $429,548 1 $541,753 TBD TABLE 10 NOTE: Other fees are those collected due to extra inspections, or extra plan review. ANALYSIS OF COST RECOVERY Cost recovery is determined on the percent of revenue that is generated to cover the cost of providing services. A comparison of annual expenditures and revenues shown is presented in the following table. i ame .i i s trompanson oT Annual expenditures and Revenues Annual Annual Percentage Expenditures Revenue Cost Recovery 2009 $615,062 $429,548 69.8% 2010 $671,847 $541,753 80.6% 2011 $703,005 TBD TBD The table indicates that current revenues are below full cost recovery. However, the data from the table does not give a complete picture. The table makes a comparison of the total expenditures and the revenues collected during a year. This produces an appearance that cost recovery is strong during periods of high development activity and less so during normal periods of development activity. The challenge with this is that the timeline on individual permits when expenditures are incurred and when revenues are received do not necessarily line up. This is particularly true in Medina where long construction schedules for projects result in revenues collected one year, but expenditures incurred over several years. To get a more complete picture of the cost recovery, expenditures and revenues are analyzed on a more individual function (category of permits) level. Consultant Costs The City utilizes consultants for planning, engineering, right-of-way, tree code, and construction mitigation review for which expenditures are passed -through to applicants for reimbursement. However, not 100 percent of all consultant expenditures are recovered by pass -through billings. Tasks such as pick-up/ drop-off, general phone calls, code enforcement, correspondence with Permitting Services User Fee Study 5 Page139 Final staff, mileage, project management and various tree code and right-of-way services are not billed to individual applicants. A review of the consultant invoices produced a breakdown of the consultant costs recovered by pass -through billing, which is presented in the following table. i ame iz: rass-tnrougn Billing Cost Recove Percentage Pass -through Non Pass -through Recovered by Total Billings Billings Billings Pass -through 2009 $171,599 $145,609 $25,990 84.9% 2010 $214,464 $183,271 $31,193 85.5% 2011 $227,200 $192,299 $34,901 84.6% TABLE 12 NOTE: Expenditures for comprehensive plan survev were subtracted from 2009 The non pass -through billings do not represent the actual amount collected. This is reflected in the fact that the pass -through billings above do not line-up with the annual pass -through fees collected shown in Table 8. Consultant costs not passed -through or collected from applicants must be recovered by other funding sources. Permits Fees: Since permit fees are not the sole source of funding, adjustments to the costs shown in Table 6 are necessary to produce those expenditures funded by permit fees. The following table makes these adjustments. Table 13: Adjusted Net Expenditures Cost of Permitting & Development Services Pass -through Billing Cost Recovery Revenue from Clyde Hill for Building Official Other pass -through fees collected Consultant costs recovered by Franchise Fees Net Expenditures 2009 2010 2011 $615,062 $671,847 $703,005 ($145,609) ($183,271) ($192,299) ($14,867) ($21,400) ($21,000) ($2,068) ($2,353) ($2,000) 0 0 2,500 $452.518 $464.823 $485.206 TABLE 13 NOTES: • Other pass -through fees collected include fees for extra inspections and professional services such as third party technical review • Per the franchise agreement, Bellevue Utilities pays franchise fees for sewer and water in lieu of paying permit fees and consultant charges for rights -of -way permits. This franchise fee ceased being collected around 2000 per a request by the City of Medina, but is expected to be collected again starting in 2011 To gather a more complete picture of the cost recovery, permit fees are divided into three categories for analysis: (1) Non -construction permit fees; (2) Right-of-way/ Grading & Drainage permit fees; and (3) Construction (building and mechanical) permit fees. Permitting Services User Fee Study 6 Page 140 Final NON -CONSTRUCTION PERMIT FEES: Non -construction permit fees include zoning, shoreline, tree code, land division, and construction mitigation. The estimated annual cost of providing these services is summarized in the following table: T_L�_ I aulle ir+. Non -construction Dermits Permit Fees Percentage Year Cost of Service Collected Difference Cost Recovery 2009 $36,531 $23,064 ($13,467) 63.1 % 2010 $52,086 $33,107 ($18,979) 63.6% 2011 $35,724 $21,807 $13,917 61.1 % The fees collected are based on the 2009 fee schedule. The cost -recovery analysis indicates that permit fees charged by the City for non -construction permits are below their full -cost level. It's worth noting that the difference is expected to grow due to increase in costs if the fees are not adjusted. A more complete analysis of individual permit cost recovery is presented at the end of this report. RIGHT-OF-WAY/ GRADING & DRAINAGE PERMIT FEES: Right-of-way and grading & drainage permits are normally categorized as construction permits, but are separated for the cost recovery analysis because nearly the entire review is performed by consultants. l ame 10: Kignt-ot-way Permits Permit Fees Percentage Year Cost of Service Collected Difference Cost Recovery 2009 $34,838 $10,750 ($24,088) 30.9% 2010 $15,544 $9,000 ($6,544) 57.9% 2011 $14,204 $11,347 ($2,857) 79.9% Table 14 Note: 2011 includes $2,347 franchise fees from Bellevue for water and sewer services The cost -recovery analysis indicates that permit fees for right-of-way permits charged by the City are below their full -cost level. One of the primary reasons for the level of cost recovery is that the City has not been collecting franchise fees from the City of Bellevue per the notes in Table 13. This is anticipated to change in 2011. Table 16: Gradinq & Drainage Permits Permit Fees Percentage Year Cost of Service Collected Difference Cost Recovery 2009 $2,709 $2,694 ($15) 99.5% 2010 $6,622 $17,486 $10,864 264.1 % 2011 $7,040 $17,486 $10,466 248.4% The cost -recovery analysis indicates that permit fees charged by the City for grading and drainage permits are generally above their full -cost level. This occurs because permit fees are based on the volume of earth being moved. The greater the volume of earth movement requested the higher the cost recovery by the City. The extra revenue generated by these permit fees is used to off -set some of the cost of construction permits. Permitting Services User Fee Study 7 Page 141 Final CONSTRUCTION PERMIT FEES: Construction permits include all building and mechanical permits. Plumbing and gas piping permits are reviewed and inspected by Seattle -King County Department of Public Health, and electrical permits are reviewed and inspected by Labor & Industries. Because the cost of processing individual permits varies greatly and is difficult to breakdown, a program approach to evaluating cost recovery is used. The following table provides an estimate of the cost of services to be covered by construction permit fees. Table 17: Expenditures Funded by Construction Permit Fees 2009 2010 2011 Adjusted Net Expenditures $452,518 $464,823 $485,206 Cost of Service - Non -construction Permits ($36,531) ($52,086) ($35,724) Cost of Services - Right-of-way Permits ($34,838) ($15,544) ($14,204) Cost of Services - Grading & Drainage Permits $2,250 $6,622 $7,040 Total Construction Permit Costs $378,899 1 $390,571 $428,238 Table 18 provides an analysis of the cost recovery Table 18: Construction Permits Permit Fees Percentage Year Cost of Service Collected Difference Cost Recovery 2009 $378,899 $219,606 ($159,293) 58.0% 2010 $390,571 $290,407 ($100,164) 74.4% 2011 $428,238 TBD TBD TABLE 17 NOTE: Permit fees collected are those estimated to be associated with nnnctnjntinn narmitc The cost -recovery analysis indicates that permit fees for construction permits charged by the City are below their full -cost level. It's worth noting that the difference is expected grow due to increase in costs if the fees are not adjusted. FEE ADJUSTMENTS: As demonstrated in the cost recovery analysis, except for grading and drainage permits, the cost of providing services by the City is higher than the fees collected to cover these costs. To narrow the gap and bring costs and revenue closer together, the following fee adjustments are suggested for 2011. ZONING AND PERMITTING 1aum iv- wnmci aim rerrmtunu rees Current Cost Proposed Current Fee Recovery Fee Variance/ SUP/ CUP/ HUP $1,000 54.5% $2,000 Admin Variance/Minor Deviation/Admin SUP $500 68.5% $750 Shoreline SDP/ CUP/ Variance $1,000 46.7% $2,200 SEPA $500 70.2% $700 SEPA Exempt $100 37.7% $100 SDP Exempt $100 30.6% $200 Short Plats $1,200 57.1% $2,100 Lot Line Adjustment $750 96.8% $775 Permitting Services User Fee Study 8 Page142 Final Preliminary Subdivision (base line) $3,000 + 50 54.3% $5,520 + 50 Final Subdivision None 0% $1,400 Accessory Dwelling $175 66.0% $175 Rezone $2,000 55.2% $2,200 If the proposed fees are implemented, the anticipated cost recovery for this function is 98.9 percent. TREE CODE/ RIGHT-OF-WAY/ CONSTRUCTION MITIGATION Table 20: Tree Code Current Cost Current Fee Recovery Proposed Fee Administrative Tree Removal $500/$100 68.5/13.7% $750/$150 Non -administrative Tree Removal $500/$100 33.6% $1,500 If the proposed fees are implemented, the anticipated cost recovery for this function is 66.4 percent based on projected permitting activity. The lower administrative tree removal fee would apply to tree removal not involving development. For tree removal permits associated with development, the proposed fees represent a slightly higher than 100 percent cost recovery. The fee for tree removal permits not associated with development, which are administrative, are recommended to remain low in order to continue encouraging property owners to contact the City before removing a tree. Table 21: Right-of-wav Permit Current Cost Current Fee Recovery Proposed Fee Excavation permit $250 93.3% $270 Right-of-way use permit $150 56.0% $270 If the proposed fees are implemented, the anticipated cost recovery for this function is 100 percent. Table 22: Construction Mitigation Plan Current Cost Current Fee Recovery Proposed Fee Level 1 $250 69.3% $370 Level $1,000 55.2% $1,800 If the proposed fees are implemented, the anticipated cost recovery for this function is 100 percent. GRADING AND DRAINAGE PERMITS 1 01JIC GJ. VI QU111y Q11U U14111dUtf r-UHAILS The fee at the lower volumes are recommended to be increased to 100 percent cost recovery while the fees at the higher volumes are recommended to be decreased to more closely align these fees with cost recovery. The net result is an anticipated decrease in revenue by 30 percent in this function based on projected permitting activity. Permitting Services User Fee Study 9 Page143 Final BUILDING AND MECHANICAL PERMITS Mechanical permit fees are calculated primarily on per unit cost, but may also be calculated using building permit valuation for more complex mechanical projects. The suggested fees are based on full cost recovery for administrative and inspection time. Table 24: Mechanical Permits — Unit Fees The unit fees are proposed to be increased to 100 percent cost recovery. Building permit fees are calculated based on the construction value of the project. After adjusting for estimated mechanical per unit fees to be collected, the adjusted cost of providing building code compliance in 2011 is $424,087. This number serves as the base line for evaluating cost recovery. i auie &a. aunump rermit rees Fees Current Cost Cost Collected Recover Gap Full Cost Recover $424,027 $286,256 67.5% 32.5% Less Fire Protection ($54,523) $369,504 $286,256 77.4% 22.6% Less Other Staff Costs ($71,505) $352,522 $286,256 81.1 % 18.9% Less Fire & other Staff Costs $126,028) $297,999 $286,256 96.0% 4.0% Table 25 Note: Fees collected are based on 2010 and assumes similar activity in 2011 Table 25 presents the projected cost recovery if building permit fees remain unchanged in 2011. The gap column in the table presents the fee increase necessary to recover costs. If full cost recovery is implemented, it would capture expenditures that historically the City has not captured in its permit fees. Recognizing that full cost recovery would result in a significant jump in fees, three other alternatives are presented if an incremental approach to increasing fees were utilized that was more consistent with historically what had been captured by permit fees. COMPARISON OF PERMITTING FEES: The following tables make a comparison of fees for full cost recovery of Medina permits with those fees of similar corresponding permits implemented in the City of Kirkland and the City of Bellevue. Non -construction Permit Fees Medina Kirkland Bellevue Variance/ SUP/ CUP/ HUP $2,000 $7,303 $3,832 Admin Variance/Minor Deviation/Admin SUP $750 $1,049 $3,832 Shoreline SDP/ CUP/ Variance $2,200 $4,473 $847 to $2,554 SEPA $700 $552+ $1,096 SEPA Exempt $100 $200 SDP Exempt $200 $200 $247 Short Plats $2,100 $4,141 $5,826 Lot Line Adjustment $775 $1,049 $766 Preliminary Subdivision (base line) $5,520 $8,711 $8,486 Final Subdivision $1,400 $2,071 $2,923 Accessory Dwelling $175 $414 Rezone $2,200 $11,265 $1,096 Permitting Services User Fee Study 10 Page 144 Final CMP Tree Removal Permits $150/$750/$1,500 ROW Permits $270 $200 + deposit Notes: Bellevue fees are charged by the hour (land use = $137 per hr; engineerinq = $87 to $142 Der hr: fire = $124 per hr). The fees represent the amount that is required to be deposited. Comparing Medina's non -construction permit fees with Kirkland and Bellevue indicates the City's fees are below. However, when factoring in consultant pass -through charges, the fees are likely to be somewhat comparable although this is based on anecdotal evidence. The following presents a comparison of the building permit fee schedule Medina has currently adopted and the proposed fees with a 32.5 percent increase. It compares these with the City of Kirkland and the City of Bellevue fee schedules available on their websites. Building Permit Fees Current Fees �r+� osec! "Fees:: Krklar>icl Selleyue $25.00 $33.50 $24.95 $30 $25.00 + $3.20 for each $33.50 + $4.25 for each $24.95 + $3.23 for each $30 + $4.35 for each $100 $100 between $501 and $100 between $501 and $100 between $501 and $2,000 $2,000 $2,000 between $501 and $2,000 $73.00 + $14.75 for each $97.25 + $19.55 for each $73.40 + $14.86 for each $95.21 + $17.42 for each $1,000 between $2,001 $1,000 between $2,001 $1,000 between $2,001 $1,000 between $2,001 and $25,000 and $25,000 and $25,000 and $25,000 $412.25 + $11.00 for each $546.90 + $14.60 for each $415.18 + $10.70 for each $495.85 + $12.96 for each $1,000 between $25,001 $1,000 between $25,001 $1,000 between $25,001 $1,000 between $25,001 and $50,000 and $50,000 and $50,000 and $50,000 $687.25 + $7.50 for each $911.90 + $9.94 for each $682.68 + $7.43 for each $819.84 + $8.39 for each $1,000 between $50,001 $1,000 between $50,001 $1,000 between $50,001 $1,000 between $50,001 and $100,000 and $100,000 and $100,000 and $100,000 $1,062.25 + $6.00 for each $1,408.90 + $7.95 for each $1,054.18 + $5.94 for each $1,000 between $100,001 $1,000 between $100,001 $1,000 between $100,001 and $500,000 and $500,000 and $500,000 $1,239.33 + $7.33 for each $1,000 between $100,001 $3,462.25 + $5.00 for each $4,588.90 + $6.63 for each $ 3,430.18 + $5.64 for $1,000 between $500,001 $1,000 between $500,001 each $1,000 over and $1,000,000 and $1,000,000 and $1,000,000 $500,000 $7,836.32 + $4.35 for each $1,000 between $1,000,001 and $5,962.25 + $3.35 for each $7,903.90 + $4.44 for each $5,000,000 $1,000 over $1,000,000 $1,000 over $1,000,000 $25,236.32 + $3.82 for each $1,000 between $5,000,001 and $50,000,000 Note: Medina building permit fees were last updated in 2004. The proposed fees represent full cost recovery. Comparing Medina's building permit fees with Kirkland and Bellevue indicates the City's current fee schedule is below Kirkland and Bellevue. If full cost recovery is implemented, Medina's building permit fees would be slightly higher than Bellevue. Permitting Services User Fee Study 11 Page 145 Final COMPUTER FEE Computer hardware and software used by employees who are processing permits may be recovered by permit fees. The City has an agreement with Paladin for new permit tracking software for $60,000. This software is intended to replace the existing permit tracking software, which was purchased in 2001. To recover this cost, a technology fee is recommended to be added to each permit. The fee is recommended to be set at $19.75. Permitting Services User Fee Study 12 Page146 Medina City Council Regular Meeting Monday, October 11, 2010 AGENDA BILL ITEM OB-5 Subject: Contract for Marine Patrol Services Category: ❑ Consent ❑ Ordinance ❑ Public Hearing ® City Council Business ❑ Resolution ❑ Other - Discussion Prepared By: Jeff Chen, Police Chief Summary: Last year during budget preparations, department directors were asked to identify services for possible cost savings. I identified the marine patrol contract as one of these areas. Attached please find for comparison contract for marine patrol services from our existing provider, Mercer Island and a proposal from the Seattle Police Department. Seattle Police Department, a nationally accredited department, currently has 9 boats in service and will increase their fleet to 11 within the near future. Seattle PD has fully staffed boats in the water ready for emergency response 24/7 year round. Mercer Island has 3 boats and does not have a boat staffed in the water all of the time. It is worth mentioning the Seattle Police Marine patrol has been visible and working cooperatively for/with Medina for years on various dignitary events and incidents. (example E-lert # 10-15, deer swimming in the water off Medina coastline.) Our NORCOM dispatch center has the ability communicate with Seattle police dispatch so there will be no significant delay in response time. Additionally, Medina PD already has direct communication capabilities with Seattle Harbor patrol via the 800 MHz radio system. Lastly, our neighboring Township of Hunts Point would likely follow whatever Medina chooses to do in this matter. SEATTLE MERCER ISLAND COST PER YEAR $60,000 $53,000 for 2010 and 2011. OBLIGATION OF Full service 24/7 365 DAYS Limited to when boat can be SERVICE staffed and as available. NUMBER OF Currently 9 boats, increasing to 11 3 boats. BOATS IN boats in the near future. SERVICE CAPABILITIES Full dive team, certified divers on each Services to include regular boat, side scan sonar, remote operated Marine Patrols, special events underwater vehicle (ROV), fire coverage, Dive Team services, suppression equipment including 3500 and Water Safety educational gallon per minute water cannon with classes to your city's aqueous film forming foam, boat Kindergarten students operators trained in anti -terrorism response, water safety education Page147 Medina City Council Regular Meeting Monday, October 11, 2010 ITEM OB-5 Budget Implications: The annual cost for transitioning our marine patrol contract to Seattle PD will be $60,000 for marine patrol services from a Nationally Accredited Police Department. On September 8, 2010 the Mercer Island City manager has reduced the charge to the city of Medina to $53,000. amount. Attachments: 1. Proposed Seattle marine services contract 2. Proposed Mercer Island marine services contract 3. Current Mercer Island marine services contract 4. Shoreline jurisdiction map 5. Mercer Island Marine Incidents 2006-2010 $60,000 State funding for Marine Patrol services can only be paid to _ Bud%et/Fiscal Impact: __ approved Marine Patrol Pro rams, not the individual cities_ Staff Recommendation: Recommend approval. Cit Mana royal: � � e_i_ Y _ er q A _gyp Move to authorize the city manager to enter into a one-year contract with the Seattle Police Department, renewable year by year, or as mutually Proposed agreeable, for marine patrol services for the City of Medina which would Council Motion: commence January 1, 2011. Page148 City of Seattle Seattle Police Department April 19, 201-0 Chief Jeffrey Chen Medina Police Department 501 Evergreen Point Road Medina; Washington 98039-0144 Dear Chief Chen: Thank you for your interest -in contracting marine services with. the Seattle Police Department. The City, through its Harbor Patrol Unit, would be pleased to offer marine patrol services to the City of Medina. Deputy Chief Metz has asked me to 'be the point of contact for this .process. The Seattle Police Department Harbor Patrol is well established, with a long history of providing excei.lent service to the residents of Seattle. Our current fleet consists of nine vessels, from 44 to nitre feet in length, including a 44' Kvichak patrol boat, a 42' jet driven Kvichak patrol boat, and.32' Safeboat, capable of speeds in excess of 55 mph. Current Unit capabilities, .all of which we propose to offer you under the agreement, include: • 24 hour,, seven day a week, staffing • Full dive team o Certified divers on each boat • Side scan sonar • Remote Operated Underwater Vehicle (ROV) • Fire Suppression equipment including 3500 gallon per minute water cannon with Aqueous Film Forming .Foam (AFF) • Boat operators trained in Anti -Terrorism response a Dedicated officers during high profile events such as Seafair • Certified Boating Under the Influence Instructor • Certified Washington State Parks Adventures in Boating instructors e Certified Personal. Watercraft (PWC) instructor t would be glad to meet with you to discuss this proposal in detail should.you decide to trove forward. 1 have attached a proposed contract for your review. Since; , L" utenant M,afe Olson Seattle Police Harbor Patrol .Unit �'!L— Nt, Searle Police Department, 610 Fifths Avenue, PO Box 34986, Seattle, WA 98124-4986 An equal employment opportunity, affirmative action employer. mm Acco `+,odations for people with disabilities provided upon request. Call (206) 233-7203 at least two weeks in advance. Page149 INTERLOCAL AGREEMENT FOR MARINE PATROL SERVICES THIS INTERLOCAL AGREEMENT ("Agreement") is between the City of Seattle, a municipal corporation of the State of Washington, hereinafter "Seattle", and the City of Medina, a municipal corporation of the State of Washington, hereinafter "Medina", WkIEREAS, Seattle maintains a Marine Patrol .unit to provide Marine Patrol services in the water of its municipal jurisdiction; and WHEREAS, Medina borders on Lake Washington and has certain of the waters of Lake Washington within its municipal jurisdiction; and WHEREAS, Medina wishes to avail itself of the Marine Patrol services of Seattle in and on the waters within its municipal jurisdiction; and WHERE -AS, Seattle is agreeable to rendering such Marine Patrol services on terms and conditions negotiated between the parties; NOW, THEREFORE, pursuant to the provisions of the Interlocal Cooperation Act, Chapter 39.34, Seattle and Medina hereby agree as follows: Section 1. ➢efinition of `Marine Patrol.Services": For purposes of this Agreement, "Marine Patrol Services" means the routine patrol of waters for the purpose of enforcing applicable laws and ordinances and establishing a deterrent and preventive effect in the waters, including -responses to serious emergency complaints arising from conduct or situations on or under the waters, in accordance with standard emergency dispatch protocol; and the providing of fire suppression services from a Marine Patrol boat. Section 2. Seattle Obligations;. ta consideration of the promises of Medina set forth in this Agreement and payment of the sum specified below, Seattle promises as follows: (A) Seattle will provide emergency services twenty-four (24) hours per day during the entire year. (B) With one boat working on Lake Washington, Seattle will provide eight (8) hours of .Marine Patrol service each. day during the boating season, which is from April I'` to October 31' each year. The daily service will be provided collectively with waters in the City of Setittle and shall include waters under jurisdiction of the City of.Medina. Marme Patrol services shall be subject to interruption for boat repair and maintenance. The shifts shall emphasize afternoon and early evening hours of the boating season. MARINE PATROL SERVICES AGREEMENT Page150 (C) Current Unit capabilities, all of which will be available to you under the agreement, include: • 24 hour, seven day a week, staffing • Pull .dive team • Certified divers on each boat • Side scan sonar • Remote Operated Underwater Vehicle (ROV) • Fire: Suppression equipment including .3 500 gallon per minute water cannon with Aqueous Film Forming Foam (AFF) e Boat operators trained in Anti -Terrorism response • Dedicated officers during high profile eveots such as Seafair • Certified Boating Under the lnfluence Instructor • Certified Washington State Parks Adventures in Boating instructors • Certified Personal Watercraft (PWC) instructor (D) At the end of each year, Seattle, will provide Medina with a report of Marine Patrol services rendered within Medina waters for the seven months of the boating season. No reports will be furnished during the :balance of the year. Under special circumstance, pursuant to an. official request from the Medina Chief of Police, the Seattle Marine Patrol shall provided statistics pertaining to recent marine patrol activity within. the City of Medina. ('E) Seattle will furnish all persomiel and any and all other things appropriate to accomplish the level of Marine Patrol services described in this Section. (F) Seattle will refund a share, prorated on the basis of time, of any sums paid by Medina in the event of termination of this Agreement. Section 3: Meding.0bligation: In consideration of the promises of Seattle set forth in this Agreement, Medina's obligations .are as follows: (A) Medina agrees to pay City of Seattle $60,000 per year on or before December 30 of eaoh year. The payment shall be by check payable to the City of Seattle and shall be mailed to the Department at 610 Fifth Avenue (ATT%1: Fiscal Section); PO .Box 34986; Seattle; WA 98124-4986. (B) Medina herby confers municipal police authority on Seattle Department officers engaged pursuant to this Agreement in enforcing State laws and Medina City ordinances within Medina waters for the .purposes of carrying out this Agreement. (C) Wherever Medina shall request the placement of buoys within the waters under its jurisdiction, Seattle will purchase and install the buoys and Medina will reimburse Seattle for the cost of the buoys and the costs associated with installation. Seattle will maintain, MARINE PATROL SERVICES AGREEMENT (2) Page151 repair and replace such buoys as needed and Medina will reimburse Seattle for the costs associated with the maintenance, repair or replacement. All of the costs involved with buoy actuation; placement, maintenance, repair and replacement are in addition to the charge for Marine Patrol services set forth in subparagraph (A) above. Section 4. Supervision and Personnel: Both parties to this Agreement understand and agree that Seattle is acting as independent contractor, with the following intended results: (A) Control. of personnel and payment of wages and benefits of such personnel, standards of performance, discipline, and all other aspects of Marine Patrol performance shall be governed entirely by Seattle_ Section 5. IndpMifiaation: (A) In executing this .agreement, Seattle does not assume liability or responsibility for or in any way release Medina from. any Iiability or responsibility which arises in whole or in part from the existence, validity, or effect ofMedines ordinances, rules, regulations or from any statutory, common law or similar duty to the public that Medina has by virtue of its status as a municipality in the State of Washington, If any such cause, claim, suit, action or, administrative proceeding is commenced, Medina shall defend the same at its sole expense and if judgment is entered or damages are awarded against Medina, .Seattle, or both, Medina shall satisfy the same, including all chargeable costs and attorney's fees. (B) Subject to Section s(A), Seattle shall indemnify and hold harmless Medina and its officers, agents, and employees, or any of their, froin and against any and all claims., actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, which are caused by or result from any negligent act or omission of Seattle, its officers, agents, and employees in performing services pursuant to this Agreement. In the event that any suit based upon such a claim, action, loss, or damage is brought against Medina or Medina and Seattle, Seattle shall defend the same as its sole cost -and expense; and if final judgment be rendered against Seattle and their respective officers, agents and employees, Seattle shall satisfy the same. (C) Medina shall indemnify and hold harmless Seattle and its officers, agents, and employees, or any of them, from and against any and all claims, actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, which are caused by or result from any negligent act or omission of Medina, its officers, agents and employees. In the event that any suit based upon such a claim, action, loss, or damage is brought against Seattle or Medina and Seattle, Medina shall defend the same at its sole costs and expense, and if final judgment be rendered against Seattle, and its officers, agents, and MARINE PATROL SERVICES AGREEMENT (3) Page 152 employees or jointly against Seattle and Medina and their respective officers, agents, and employees, Medina shall satisfy the same. (D) This indemnification provision shall survive the expiration or termination of this Agreement., SeetiQn 6. General.Provisions: (A) This Agreement shall be effective from January 1, 2011 through December 31, 2012, provided that it shall automatically be renewed for additional one year terms under the same terms and conditions, unless either party gives the other party sixty (60) days written notice prior to expiration of a term of its intention to renegotiate for another term or of its retention not to renew for another term. (B) Either party may terminate this Agreement upon furnishing written notice to the other at least sixty (60) days in advance of the desired date of termination. (C) Any termination of this Agreement shall not terminate any duty of either party matured prior to such termination, (D) *No waiver by either party of any term or condition of this Agreement shall be deemed or construed as a waiver of any other term or condition, nor shall a waiver of any breach be deemed to constitute a waiver of any subsequent breach whether of the same or a different provision of this. Agreement. (E) Both parties acknowledge that revenue or the lack of revenue from citations shall not be a measure of Marine Patrol activity, and. that Seattle is under no obligation to generate any revenue through citations. Section 7. Filing of Agreement: This Agreement shall be filed with the city/town clerks of each municipality and the Secretary of State as required by law. Both parties, through their authorized agents, have read and understand the above Agreement, and intend tobe bound by it, and the authorized agents of Medina and Seattle have signed below this day of , 2010. CITY OF MEDINA an ATTEST: Approved as to From: MARINE PATROL. SERVICES AGREEMENT CITY OF SEATTLE ATTEST: Approved as to Form: (4) Page153 By.. By: MARINE PATROL SERVICES AGREEMENT (5) Page 154 Mercer Island Marine Patrol Serving the Communities of Medina, Renton, Hunts Point, Yarrow Point and Bellevue Vessels Patrol 11 — 30 foot Almar Patrol 14 — 31 foot Safeboat Patrol 12 — 23 foot Safeboat • Mercer Island's three vessels are outfitted similarly to Fire Department Aid units • EMT first aid kit, Automatic External Defibrillator, Oxygen kit, backboards • Patrol 11 and Patrol 14 are equipped with fire suppression and vessel dewatering equipment • Patrol 12 is a rapid rescue/enforcement vessel with a top speed of 58 mph Outstanding Value • 2010 costs to contracted cities are projected to decrease by %6 • Medina's 2010 costs for Marine Services will not exceed $60,000 (may be less*) • Medina's 2011 costs for Marine Services are projected to the same as 2010 • Average response time to calls in Medina is 5-6 minutes • Consistent high performance in the area of boater education, contacts, assistance and enforcement — see attached Washington State Parks Boating Activities Summary 2006-2008 * Dependant on State Vessel Registration Funds which slightly fluctuate year to year Services Provided • Dedicated year-round staffing • 24 / 7 Marine Patrol coverage year-round for emergency services • Search and Rescue • Joint Police / Fire Dive Team • Fire suppression equipment on two patrol vessels • Boating accident investigation with advanced Marine Accident Investigators • Public assistance with disabled vessels, debris/hazard removal, and vessel dewatering • Installation and maintenance of regulatory buoys • Special event safety/security • Kindergarten water safety classes • Certified National Boating Under the Influence Instructor • Certified Washington State Parks Adventures in Boating Instructors • Nationally Certified Marine Patrol Instructors • 2009 "Washington State Boating Officer of the Year' awarded to Sgt. Keith McDonough Page155 Mercer Island Marine Patrol Serving the Communities of Medina, Renton, Hunts Point, Yarrow Point and Bellevue Emergency Response • Officers are certified by Washington State Fire Training Academy for Marine Firefighting • Vessels are uniquely staffed with Police officers and certified EMT's or Paramedics • Sick and injured victims receive EMT -level medical response, treatment and transportation • Vessels are outfitted similarly to Fire Department Aid units Dive Team • The Mercer Island Dive Team is comprised of 6 Police and 6 Fire personnel • All divers are trained in 'Dive Rescue' techniques ■ NOAA working diver ■ Underwater investigations ■ Swift Water and Dive Rescue • Three divers trained in Department of Homeland security anti-terrorist divers Established Relationships • Successfully partnered with Medina since 1982 • Positive working relationships have been well established with all of the Eastside Fire agencies (Bellevue, Kirkland, Renton, Mercer Island) • NORCOM Agency — Immediate dispatch to incidents — Shared Dispatch center with Medina Units —Radio and MDC • Outstanding relationship with Washington State Parks which governs the State Boating Program • Small agency service — offers greater flexibility to tailor services and open communications Page156 INTERLOCAL AGREEMENT FOR MARINE PATROL SERVICES THIS INTERLOCAL AGREEMENT ("Agreement") is between the City of Mercer Island, a municipal corporation of the State of Washington, hereinafter "Mercer Island", and the City of Medina, a municipal corporation of the State :of Washington, hereinafter "Medina". WHEREAS, Mercer Island maintains a marine Patrol unit to provide Marine Patrol service's in the water of its municipal jurisdiction; and WHEREAS, Medina borders on Lake Washington and has certain of the waters of Lake Washington within itsmunicipal jurisdiction; and WHEREAS, Medina wishes to avail itself of the Marine Patrol services of Mercer Island in and on the waters within its municipal jurisdiction; and WHEREAS,, Mercer Island is agreeable to rendering such Marine Patrol services on terms and conditions negotiated between the parties; NOW, THEREFORE, pursuant to the provisions of the Interlocal Cooperation Act, Chapter 39.34, Mercer Island and Medina hereby agree as follows: Sectigt-1_. 'Definitign of "Marine P#trol Services_ '_': Far purposes of this Agreement, "Marine Patrol Services" means the routine patrol of waters for 'the purpose of enforcing applicable laws and ordinances and establishing a deterrent and preventive effect in the waters, including responses to serious emergency complaints arising from conduct or situations on or under the waters, in accordance with standard emergency dispatch protocol; and the providing of fire suppression services from a Marine Patrol boat. Section 2. Mercer Island Oblieafions- In consideration of the promises of Medina set forth in this Agreement and payment of the sum specified below, Mercer Island promises as follows: (A) Mercer Island will provide emergency services twenty-four (24) hours per day during the entire year. N Mercer Island will provide eight (8) hours of Marine Patrol service each day during the boating season which is from April Ist to October 31 st each year. The daily service will be provided collectively to Mercer Island and all other cities/towns who contract with Mercer Island for service. .� MARINE PATROL SERVICES AGREEMENT Page 157 . a (C) During the balance of the year, Mercer Island will provide Marine Patrol service eight (8) hours per day, six (6) days per month. (D) At the end of each year, Mercer Island will provide Medina with a .report of Marine Patrol services rendered within Medina waters for the seven months of the boating season. No reports will be furnished during the balance of the year. Under special circumstances, pursuant to an official request from the Medina Chief of Police, the Mercer Island Marine Patrol shall provide statistics pertaining to recent marine patrol activity within the City of Medina. (E) Eurnish all personnel and any and all other things appropriate to accomplish the level of Marine Patrol services described in Section 2 (A) above. (F) Refund a share, prorated on the basis of time, of any sums paid by Medina in the event of termination of this Agreement. Section .3 Medina Obligations In consideration of the promises of Mercer Island set forth in this Agreement, Medina`s obligations are as follows: (A) Medina agrees to pay to Mercer Island for providing the Marine Patrol services described in Section 2 of this Agreement for each calendar year an amount equal to 20.5% of the Mercer Island Marine Patrol budget. The budget is determined by starting with the total estimated costs of providing Marine Patrol services. to Medina and each of the cities/towns which contract for such services and deducting revenues estimated to be received from the Washington State Vessel Registration Fees. The remaining amount is the Mercer Island Marine Patrol budget. Medina agrees to pay the amount determined by this formula to Mercer Island on or before December 30 of each year. The City of Mercer Island shall notify Medina in November of the amount due pursuant to this formula. Payment shall be made to the City of Mercer Island at 9,611 S.E. 36th Street, Mercer island, Washington 98040. (B) Medina hereby confers municipal police authority on Mercer Island Department of Public Safety officers engaged pursuant to this Agreement in enforcing State laws and Medina City ordinances within Medina waters for the purposes of carrying -out this Agreement. (C) Wherever Medina shall request the placement of buoys within the waters under its jurisdiction, Mercer Island will purchase and install the buoys and Medina will reimburse Mercer Island for the cost of the buoys and the costs associated with MARINE PATROL SERVICES AGREEMENT (2) Page158 Installation. Mercer Island will maintain, repair and replace such buoys as needed and Medina will reimburse Mercer Island for the costs associated with the maintenance, repair or replacement. All of the costs involved with buoy acquisition, placement, maintenance, repair and replacement are in addition to the charge for Marine Patrol services set forth in subparagraph (A) above. S.ec io 4. Supervision and Personnel• Both parties to this Agreement understand and agree that Mercer Island is acting as independent contractor, with the following intended results: (A) Control of personnel, and payment of wages and benefits of such personnel standards of performance, discipline, and all other aspects of Marine }patrol performance shall be governed entirely by Mercer Island. Section 5, Indemnification: (A) in executing this agreement, Mercer Island does not assume liability or responsibility for or in any way release Medina from any liability or responsibility which arises in whole or in .part from the existence, validity or effect of Mledina's ordinances, rules, regulations or from any statutory, common law or similar duty to the public that Medina has by virtue of its status as a municipality in the State of Washington. In any such cause, claim, suit, action or administrative proceeding is commenced, Medina shall defend the same at its .sole expense and if judgment is entered or damages are awarded against Medina,. Mercer Island, or both, Medina shall satisfy the same, including all chargeable costs and attorney's fees. (B) Subject to Section 5(A), Mercer Island shall indemnify and hold harmless Medina and its officers, agents, and employees, or any of them, from and against any and all claims, :actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, which are caused by or result :from any negligent act or omission of Mercer Island, its officers, agents, and employees in performing services pursuant to this Agreement. In the event that any suit based upon such a claim, action, loss, or damage is brought against Medina or Medina and Mercer Island, Mercer Island shall defend the same as its sole cost and expense, and .if final judgment be rendered against Medina and its officers, agents, and employees or jointly against Medina and Mercer Island and their respective officers, agents .and employees, Mercer Island shall satisfy the same. (C) Medina shall indemnify and hold harmless Mercer Island and its officers, agents, and employees, or any of them, from and against any and all claims, actions, MARINE PATROL SERVICES AGREEMENT (3) Page159 suits, liability, loss, costs, expenses, and damages of any nature whatsoever, which .are caused by or result from any negligent act or omission of Medina, its officers, agents and employees. In the event that any suit based upon such a claim, action,, loss, or damage is brought against Mercer Island or Medina and Mercer Island, Medina shall defend the same at its sole costs and expense; and if final judgment be rendered against Mercer Island, and its officers, agents, and employees or jointly against Mercer Island and Medina and their respective officers, agents, and employees, Medina shall satisfy the same. (D) This indemnification provision shall survive the expiration .or termination of this Agreement. 'ec`t____.lorb. General Provisions. (A) This Agreement shall be effective from January 1, 1999 through November 1, 2000, provided that it shall automatically be renewed for .additional one year terms under the same terms and conditions, unless either party gives the other party sixty (60) days written notice prior to expiration of a .terra of its intention to renegotiate for another term or of its intention not to renew for another term. (B) Either party may terminate this Agreement upon furnishing written notice to the other at least sixty (60) days in advance of the desired date of termination. (C) Any termination of this Agreement shall not terminate any duty of either party matured prior to such termination. (D) No waiver by either party of any terra or condition of this Agreement shall be deemed or construed as a waiver of any other term or condition, nor shall a waiver of any breach be deemed to constitute a waiver of any subsequent breach whether of the same or a different provision of this Agreement. (E) Both parties understand that no significant impact on the environment will result from services rendered under this Agreement. (F) Both parties recognize that revenue or the lack of revenue from citations shall not be a measure of Marine Patrol activity, and that Mercer Island is under no obligation to generate any revenue through citations. Section 7. .Filine of Agreement: This Agreement shall be filed with the city/town clerks of each municipality and the Secretary of State as required by law. MARINE PATROL SERVICES AGREEMENT (4) Page160 Both parties, through their authorized agents, have read and understand the above Agreement, and intend to be bound by it, and the authorized agents of Medina and Mercer Island have signed below this 1- .,(ay of �--� 2000. CITY MED1 . A By: D Schulze I ity Manager ATTEST: ea2gpep &Lea4,1 Card,11 P. Wedlund It's City Clerk Approved as to .Form: By: =- -kirk R. Wines Its City Attorney MARINE PATROL SERVICES AGREEMENT CITY,OF MERCER ISLAND By- W4M&ch. Conrad Its City Manag r ATTEST: Christine L. ggers Its City Clerk Approved as to Form: Londi K. Lindell Its City Attorney (S) Page161 49 ti • � a *1 + Her ��. x 4 .5�'�✓ f NA r� t y Shoreline Jurisdiction Shoreline Jurisdiction Marine patrol by city Mercer Island Mercer island o 0.5 a 3 4 s Seattle Miles Seattle Pal H U Q J N0 lLi r 0 CL Ul Z � N W O 0 >- N Zto Q J w w W U DC W 2 0 o � No Q1 t0 ci VI G w w v o O Tri N M N V G Oa O O O O N O O O O O > N N N N N Medina City Council Regular Meeting ITEM OB-6 Monday, October 11, 2010 AGENDA BILL Subject: Discussion on Wireless Communication Facilities in City Parks ❑ Consent El Ordinance Category: El Public Hearing ❑ City Council Business ❑ Resolution ® Other -Discussion Prepared By: Robert Grumbach, Development Services Directorrt P m^m Y 44 Summary: At the September council meeting, the City Council wanted to explore options regarding wireless communication facilities in City's parks. Currently, wireless communication facilities at parks are limited to certain areas of Fairweather Preserve, and ancillary facilities (electronic equipment) are permitted within the interior of City -owned buildings. The question being explored is if it was possible to allow wireless communication facilities at City parks, but limit these to certain existing structures such as City -owned buildings and the police communication tower (flag pole). (Police communication facilities are exempt from chapter 17.90 MMC.) In discussing this matter with the City Attorney, an amendment to chapter 17.90 is required. Preliminarily, staff believes that an amendment could be developed that would allow incidental commercial telecommunication to co -locate with police communication systems, and could allow antennas to be mounted on City -owned buildings. There may also need to be some amendments to the provisions in chapter 19.08 in order to have consistency in the regulations. However, the full extent of what needs to be done is still to be determined. If the City Council wishes for staff to move forward on this subject, staff can prepare a draft code amendment for consideration. However, it should be noted that a code amendment will require a public hearing and a Planning Commission recommendation before the Council can take action on an ordinance. Attachments: 1. Code amendment example Budget/Fiscal Impact: To be determined Staff Recommendation: None Proposed Council Motion: Council policy direction EXAMPLE ITEM OB-6 1 2 17.90.030 Applicability. 3 4 A. The provisions of this chapter shall apply to all new and expansion and/or 5 alteration of wireless communication facilities located within the boundaries of the 6 City, except for the following: 7 8 1. Those facilities used for the primary purpose of public safety by public or 9 semi-public entities, such as police, and 911 communications systems; 10 2. Incidental use of support structures exempt from the provisions of this 11 Chapter pursuant to section 1 above (public safety) by gon-public entities for the 12 attachment of antennas and ancillary facilities: 13 3. Wireless radio utilized for emergency corrim'Unications in the event of a 14 disaster; 15 34. An antenna that is designed to receive teievision broadcast signals; 16 45. An antenna for receiving and sending of amateur,',-- radio devices or HAM 17 radios provided the criteria in MMC 17.52,035 are satisfied; 18 46. An antenna that is one meter or less in diameter or diagonal measurement, 19 which is designed to receive direct broadcast satellite services, hating direct-to- 20 home satellite services and those subject to, MMC 17.5 0; 21 67. An antenna that is one meter or less in diameter or diagonal measurement, 22 which is designed to receive video programming-' arvices via multipoint distribution 23 services, including multi -channel' %rnultipoint distribution services, instructional 24 television fixed services, and local nultipoint distributionservices. 25 26 B. It is the expres intent of theCity to impOse all regulations in this chapter to 27 all land withintOO pity, whether publiofy,or pr atel i � iei including private property, 28 city property, stAtp7owned right-of-way, andVor church,property, utility property and 29 school property. 30 31 32 17.90.060 ` Pecs and Public Places z*ning — limitations. 33 34 Wireless communication facilities, are prohibited in all portions of City parks, except: 35 36 A. Those portions of .Fairweather Nature Preserve which are non -forested and 37 adjacent to the state highway right-of-way; and 38 B. Ancillary facilities OWced within the interior of a City -owned building and 39 antennas mountee on the exterior of publicly owned buildings. 40 41 The determination of; whether or not to allow the construction installation or 42 placement of such wireless communication facilities in City parks shall be governed 43 by the provisions of MMC Ch. 19.08 (Facilities Lease) and such policies procedures 44 or regulations adopted by the City Council relating to leasing of park property. 1 of 1 Page 165 Medina City Council Regular Meeting ITEM OB-7 Monday, October 11, 2010 AGENDA BILL Subject: Temporary Wireless Communication Facilities ❑ Consent [I Ordinance Category: ❑Public Hearing ❑ City Council Business ❑ Resolution ® Other -Discussion Prepared _py:Robert Grumbach, Development Services Director _ W Summary: At the September 13 council meeting, the City Council wanted to explore allowing temporary wireless communication facilities. It is worth noting that while this subject was raised with the Council by ATC, several telecommunication carriers with facilities located in the SR 520 right-of- way have previously approached the City about locating temporary facilities within the City. One of the more common names for these temporary facilities is cells -on -wheels or COW, these facilities are generally mobile so that they can provide expanded or temporary cellular coverage as needed. Most of these units are simply cargo trailer or boxes that have been modified to hold communication equipment with an antenna connected or attached. (See attached pictures for examples.) The Zoning Code allows for these units. However, what the zoning code does not do is distinguish temporary from permanent facilities. This means a COW has the same requirements for approval as permanent tower. Since these are currently allowed, the policy question is whether these should have the same process as permanent facilities or if some other process for permitting these is preferred. If the latter is preferred, a code amendment would be required with Council direction on some key questions required: • Should temporary wireless communication facilities be limited to the same locations as permanent facilities, or should they be allowed more broadly within the City? • What form of land use approval should be required, if any? One option would be to expand temporary use permits to include these types of facilities. • How long a period is temporary? • Should the same concealment and needs requirement for permanent facilities also apply to temporary facilities? (How temporary is defined might influence this.) Attachment(s): 1. Pictures of Temporary Wireless Communication Facilities _BudgWFiscal Impact _ ---,None ---- �__ Staff Recommendation: None City Manager N Proposed Council Motion: Council policy direction Page166 Examples of Temporary Wireless Communication Facilities Page167 Medina City Council Regular Meeting ITEM OB-8 Monday, October 11, 2010 AGENDA BILL Policy on Number of Wireless Communication Towers at Fairweather Subject: Preserve Category: ❑ Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ® Other -Discussion Prepared By: Robert Grumbach, Development Services Director Summary: The zoning code permits wireless communication facilities in the non -forested areas of Fairweather Preserve adjacent to the state highway. Because this is City -owned property, an entity proposing to construct a wireless communication facility at this location must seek approval of a lease from the City. The City Council has previously authorized the City manager to negotiate a lease with T-Mobile for use of Fairweather, and a request was received from Independent Towers, partnering with AT&T, to do the same (see Item CA-4). The zoning code strongly encourages co -location, but an applicant showing proper justification may not necessarily be required to co -locate. While the zoning code does not limit the number of facilities at the park, the City Council can limit the number of leases for towers it is willing to grant provided the reasoning is rational such as limiting the visual impacts multiple towers could have upon the park. The policy question for staff is how we should move forward with these negotiations. The options are: 1. Continue negotiating separate leases with T-Mobile and Independent Towers and allow multiple towers at Fairweather Preserve; or 2. Continue discussion with only one — T-Mobile or Independent Towers; or 3. Suspend negotiations and advertise a Request for Proposals to allow competition for the lease and limit it to a single tower; or 4. Other option. It is worth noting that initial feedback received by staff indicates that it may not be economically viable for two towers to be constructed at Fairweather Preserve and that one of the two current lease requests could pull-out. However, the possibility still remains two towers could be built. Attachment(s): 1. n/a Budget/ iscal Impact: _ To be determined Proposed Council policy direction Council Motion: Page 169 ���fMFa MEDINA CITY COUNCIL 2010 AGENDA/ACTION CALENDAR All meetings held at Medina City Hall in the council chambers at 6:30 pm, unless noticed otherwise Discussion Public Official's Do's and Don'ts Lew Leigh, WCIA None. `SfeGe �lZi£y Discussion Top Five Thin s New Council Members Should Know Attorney None. Master Program Update - Consent Agenda Participation Plan Grumbach Approved Consent Agenda City Hall Schematic Plans _ Willis Approved Approval of Public Works Truck Snow Removal Consent Agenda ,- IS2ipment Purchase Willis Approved Other Business Oath of Office to Newly Elected Council Members Baker None. Mayor -Bret Jordan, Deputy Mayor - Other Business Election of 20102011 Mayor and Deputy Mayor Mayor Shawn Whitney Retreat scheduled 2/3, Study Other Business 2010 Council Retreat and Meeting Schedule Hanson_ sessions scheduled as needed Other Business Draft 2010 Legislative a Agenda Hanson Amended, approved Facilities: Boyd, Jordan, Nelson; Finance: Jordan, Lee, Whitney; Other Business 2010 Council Committees Mayor_ Personnel: Dicharry, Jordan, Phelps Other Business Wireless Communication Coverage Grumbach None. _ Other Business Draft Code Enforcement Ordinance Grumbach Public hearing scheduled 2/8 ETP: Dicharry, Nelson; WSDOT SR520: Dicharry, Nelson; PSRC: Whitney; Sound Transit: Jordan; SCA: Whitney; Points Mayors: Discussion Regional Committees/Council Member Attendance Mayor Jordan; Bellevue Cit Council: Lee Discussion Review and Update City Council Rules and Guidelines Hanson/Baker None. Discussion Develo a�ndCommunicate Expectations of City Mangier Hanson None. Establishing Best Practices in Council -Manager Form of Discussion Government Lee None. Council agenda calendar subject to change. Action record unofficial until adoption of meeting minutes. Council agenda packets and minutes can be found at http://medina.fileprosite.com. Page 170 �ofYE� MEDINA CITY COUNCIL 2010AGENDA/ACTION CALENDAR All meetings held at Medina City Hall in the council chambers at 6:30 pm, unless noticed otherwise Presentation Su lemental DEIS WSDOT None. Consent Public Works Vehicle Purchase Willis A proved Consent Schedule Public Hearing for Temporary CityGovernment Facilities Grumbach Public hearing scheduled 3/8 Consent Public Hearing Confirmation of Planning Commission Appointment Recommendation Proposed Code Enforcement Ordinance Mayor Grumbach Appointment confirmed None. Other Business Proposed Code Enforcement Ordinance Grumbach Discussion, action tabled to 3/8 Other Business Proposed 2010 Planning Commission Work Plan Grumbach Amended, approved Other Business O tions for Temporary City Hall Willis Discussion, action tabled to 3/8 Other Business _ Follow Up: Wireless Communication Coverage Grumbach Discussion, action tabled to 3/8 Other Business Other Business Part 150 Noise Study Representation Schedule Study Session for Review of Council Goals, Ground Rules & Guidelines Hanson Hanson Consultant contract a roved Scheduled 3/22 study session Consent Agenda Acceptance of Development Services Software Upgrade Grumbach Accepted_ Consent Agenda Approval of Proposed Code Enforcement Ordinance Grumbach Ordinance No. 848 approved. Hanson / A. Consent Benda ARCH Budget &Work Plan Sullivan A proved. Public Hearing Code Amendment Regarding Temporary Government Facilities Grumbach None. Proposed Ordinance Regarding Temporary Government Other Business Facilities Grumbach Ordinance failed. _ Direction to execute "Option C" with smallest possible footprint (installation of two portable office trailers in Medina Park) and public meetings to be held at St. Thomas Other Business Temporary City Hall Location Options Willis School. Approved subject to Group recommendations from facilities City Hall Design Development Plans For City Hall MacKenzie committee and department Other Business Expansion and Renovation Project Architects directors. Authorized city manager to negotiate lease agreement and bring back to the city council for Other Business A proval of Lease for SR 520 Wireless Facilities Grumbach consideration. Other Business Proposed 2010 Park Board Work Plan Willis Accepted. Ordinance Repealing and Reenacting MMC Chapter 2.84 Other Business Regarding Emergency Operations Hanson Ordinance No. 849 approved. Authorize city manager to enter into an interlocal agreement to negotiate an extension of the current franchise agreement with Other Business Interlocal Agreement for Comcast Franchise Negotiations Hanson Comcast Cable. Council agenda calendar subject to change. Action record unofficial until adoption of meeting minutes. Council agenda packets and minutes can be found at http://medinafileprosite.com. Page171 MEDINA CITY COUNCIL 2010 AGENDA/ACTION CALENDAR All meetings held at Medina City Hall in the council chambers at 6:30 pm, unless noticed otherwise MR, Other Business Briefing Amending chapter 15.04 MMC to adopt 2009 Grumbach/ Washington State Building Codes. Wilcox None. Staff summar onl . Direction to staff to vet St. Thomas Other Business Medina Park Temporary City Hall Options Willis Church parking lot option further. Review Council's Strategic Goals, Ground Rules, and _ Direction for city attorney to review Guidelines Document and provide revised copy at later Other Business _ Baker/Hanson date. Other Business Wireless Communications Consultant Victor/Hanson None. Consultant introduction. (Sarah Moberly Presentation Prosecuting Attorney ___& Lynn Roberts) None. Other Business Consultant recommendation Wireless Facilities Update Grumbach expected 5/10. Guidance provided and planning commission recommendation Other Business Discussion Regarding Pitched Roof Incentives Grumbach expected by December. Proposed Ordinance Regarding Placement of Temporary _ Other Business m Government Facilities Grumbach Ordinance No. 850 adopted. negotiate & sign lease agreements with St. Thomas Church for site and portable office trailers for temporary city hall, not to exceed total Other Business Temporary City Hall Willis $70,400. Guidance provided to advertise and Other Business Shoreline Master Program Update - Advisory Committee Grumbach recruit for committee. onsent to a ress tra ic, transient moorage and improper mitigation Proposed Meydenbauer Bay Park and Land Use concerns to Bellevue City Council via Other Business Masterplan. Mayor letter. Consent Agenda Approval of Kin County Jail Services Contract Chen Contract Approved Other Business Appointment to City Council Position 2 Victor Shawn Whitney Appointed Other Business Election of Deputy Mayor Mayor Shawn Whitney Elected Other Business Appointment to Finance Committee Shawn Whitney Appointed Requested Draft Ordinance for Other Business Wireless Facilities Consultant Recommendation Hanson Discussion during June 14 Meeting.. Proposed Ordinance Amending chapter 15.04 MMC Grumbach/ June 14, 2010 Public Hearing Other Business adopting 2009 Washington State Building Codes Wilcox Scheduled Authorization for Consultant Design Services for NE 12 & Authorized Consultant to Design Other Business Lk Wash Blvd Traffic Safety Improvements Willis Phase 1 of Project June 14, 2010 Public Hearing Other Business Draft Six -Year CIP/TIP (2011-2016) Willis Scheduled Other Business Authorize Call to Bids: City Hall Renovation Project _Willis Call for Bids Approved Other Business Draft Surplus Equipment Ordinance Hanson Ordinance Approved Action record unofficial until adoption of meeting minutes. Council agenda packets and minutes can be found at http://medinafileprosite.com. Page172 MEDINA CITY COUNCIL 2010AGENDA/ACTION CALENDAR All meetings held at Medina City Hall in the council chambers at 6.30 pm, unless noticed otherwise ruuum ncm ing Washington State Building Codes Wilcox Held. Action amending chapter 15.04 MMC adopting 2009 Grumbach/ Other Business Washington State Building Codes Wilcox Ordinance Number 852 adopted. Public None. Draft Code Amendment Regarding Wireless Discussed and provided direction to Other Business Communication Facilities Grumbach staff. Discussed and provided direction to Other Business Solid Waste Services, Rates, and Options Hanson Consent A enda Set public hearing dates for three land use ordinances Grumbach _staff. Approved. Consent Agenda Planning Commission Appointments, Position 7@ Mayor Approved. Approval of Interlocal Project Services Agreement Consent Agenda Between Medina and WSDOT Willis Approved. `rc7iemoran um o n ers an mg a ween e i y o Medina and Public, Professional and Office -Clerical Employees and Drivers Local Union No. 763 Establishing a Voluntary Employee's Beneficiary Association Trust Consent Agenda (VEBA) Hanson Approved. Acceptance of Proclamation Recognizing Camp Fire USA z� �. Consent Agenda Central Puget Sound Council _ Mayor Approved. Resolution Approving Centralized Contracting for A Consent A enda Regional Coalition for Housing (ARCH) Hanson Approved Resolution No. 342. Other Business 2010 Budget Review _ Hanson None. _ Streetscapes Policies and Standards None. Other Business Gateway Design Concepts for Lk Wash Blvd & NE 12 St Grumbach/Willis None. w procedures for project permits, text amendments to Public Hearing, Other development regulations, area -wide zoning map Business amendments, and comprehensive plan amendments Grumbach Ordinance No. 855 adopted. Public Hearing, Other A code amendment relating to divisions of land and lot Business line adjustments Grumbach Ordinance No. 854 adopted. �_ Public Hearing, Other Business A code amendment relating to permit fees Grumbach Ordinance No. 853 adopted. Other Business Adoption of Six -year CIP/TIP ResolutionNo. 343 approved Other Business Bid Award: City Hall Renovation Project _Willis Willis None. Other Business Contract Ap royal: Modular Office Trailers Willis Other Business Lease Agreement Approval: Temorar Ci Hall Site Willis _None. None. Other Business Planning Commission AppointmentsPosition 3 Mayor _ David Lee Appointed Other Business Surplus Resolution (Public Works Truck) Willis ResolutionNo. 344 approved Consent Agenda Lease Negotiations with T-Mobile Grumbach Approved. Council agenda calendar subject to change. Action record unofficial until adoption of meeting minutes. Council agenda packets and minutes can be found at http://medina.fileprosite.com. Page173 � Qf figd� MEDINA CITY COUNCIL 2010 AGENDA/ACTION CALENDAR All meetings held at Medina City Hall in the council chambers at 6:30 pm, unless noticed otherwise Other Business Ci Hall Remodel Fundin Hanson Item not discussed. Regarding Draft Ordinance Regarding Wireless Other Business Communication Facilities Grumbach Hearing scheduled 09/13/2010. Discussion. List requested of Other Business City Hall Funding Hanson dela able ca ital projects. Other Business Streetscape Policies and Standards Willis Direction to draft ordinance. Direction to prepare lease Contract Approval, Temporary City Hall Lease and Site agreement for presentation to Other Business Improvements with St. Thomas Church Willis council 09/13/2010. Direction to send letter to WSDOT concerning 84 Ave NE Design Other Business SR 520 Position Letter to WSDOT Concernin 84th Traffic Willis Im acts. Discussion Street Design Standards Willis Discussion. Public Hearing Wireless Communication Facilities Ordinance Grumbach Held. Other Business Wireless Communication Facilities Ordinance Action Grumbach Adopted Ordinance No. 856. Other Business Draft Prelimina 2011 Annual Bud et Hanson Reviewed. Direction provided Award Contract for City Hall Expansion & Renovation Contract Awarded to Par Tech Other Business Pro'ect Willis Construction Professional Services Agreement Award Construction Management Services Contract for Awarded to David A. Clark City Hall Project Other Business Hanson Architects, PLLC. Contract Approval, Temporary City Hall Modular Office Other Business Lease Willis Contract Approved/Mobile Mini, Inc. Contract Approval, Temporary City Hall Lease and Site Lease Agreement and Site Other Business Improvements with St. Thomas Church Willis Improvement Work Approved. Comprehensive Plan Amend ment/Streetscape Policies and y Other Business Non -Motorized Transportation Plan Grumbach Discussion. Scheduled for Planning Commission Willis/ Review 9/28 and Council Action Other Business Proposed Arterial Street Design Standards Grumbach 10/11. Construction Mitigation Measures in City Rights of Way and City Engineer's Authority to Modify Std Specifications for Road & Bridge Construction _ Grumbach Adopted Ordinance No. 857. Other Business Pro osed Traffic Code Ordinance U date Chen Ado ted Ordinance No. 858. Other Business Marine Patrol Contract Chen Tabled to October 11. Council agenda calendar subject to change. Action record unofficial until adoption of meeting minutes. Council agenda packets and minutes can be found at http://medina.fileprosite.com. Page 174 t�#+ MEDINA CITY COUNCIL 2010AGENDA/ACTION CALENDAR All meetings held at Medina City Hall in the council chambers at 6.30 pm, unless noticed otherwise Telecommunication Facilities Proposed by ATC Outdoor Public Hearin DAS, LLC Grumbach Public Hearing Preliminary 2011 Annual Budget Hanson Other Business Preliminary 2011 Annual Budget Hanson Willis/ Public Hearing Proposed Arterial Street Design Standards Ordinance Grumbach Willis/ Other Business Pro os� ,ed Aprterial Street Desi n Standards Ordinance Grumbach Other Business 2011 Fee Schedule Grumbach Other Business Marine Patrol Contract w Chen Other Business Temporary Wireless Facilities Grumbach Other Business Wireless Antennas in Public Buildings/Structures Grumbach Discussion Concerning City Manager Annual Performance Other Business Review Process Mayor Discussion Concerning Policy_ Direction re No of Wireless Other Business Communication Towers @ Fairweather Grumbach Presentation WSDOT SR 520/Tolling_ WSDOT Presentation WSDOT SR 520 Update Consent Agenda _WSDOT WSDOT GCA Agreement Willis Public Hearing, Other Business 2011 Property Tax Levy and Property Tax Resolution Hanson Public Hearing, Other 2011 Annual Budget, Budget Ordinance and Salary Business Schedule Hanson Ordinance to Amend MMC, Chapter 5.04 re Utility & Other Business Franchise Fees Hanson Other Business Resolution to Ado t NORCOM 2011 Annual Bud et Chen HEX vs CC Decision Making Authority Over Certain Permit Other Business Applications Grumbach Other Business Tentative 2011 Budget Study Session Hanson Other Business Roof Incentives) Grumbach Approval of Ordinance to Adopt 2011 Annual Budget (if Other Business necessa Hanson Council agenda calendar subject to change. Action record unofficial until adoption of meeting minutes. Council agenda packets and minutes can be found at http.-Ilmedina.fileprosite.com. Page 175 2011 Comparative Summary by Fund PRELIMINARY - DRAFT 2011 2011 2011 2008 2009 2010 2010 Preliminary $ % DESCRIPTION Actual Actual Budget Forecast Diftet Change Change GENERAL FUND BEGINNING FUND BALANCE $ 2,839,677 $ 3,163,000 $ 2,324,925 $ 2,324,925 $ 1,398,710 $ (936,215) 40.27% REVENUES 5,556,448 4,365,285 4,790,837 4,500,019 4,672,437 $ (118,400) -2.47% OPERATING TRANSFERS -IN - - - $ - - EXPENDITURES 4,533,125 4,593,360 5,074,859 4,889,471 4,945,170 129689 2.56% OPERATING TRANSFERS -OUT 700,000 610,000 546 762 546,762 245 000 301:762 55.19% $ 3,163,000 $ 2,324,925 $ 1,494,141 $ 1,388,710 $ 870,978 $ (623,163) -41.71% ENDING FUND BALANCE EQUIPMENT FUND BEGINNING FUND BALANCE $ 71,680 $ 5,748 $ 5,748 $ 5,748 $ 8,633 $ 2,885 50.19% REVENUES 12,285 - $ - - OPERATING TRANSFERS -IN - 118.762 118,762 $ 118,762 -100.00% 78,217 118,762 115,877 - 118,762 100.00% EXPENDITURES OPERATING TRANSFERS -OUT - - - - $ 5,748 $ 5,748 $ 5,748 $ 8,633 $ 8,633 $ 2,885 50.19% ENDING FUND BALANCE STREET FUND BEGINNING FUND BALANCE $ 230,539 $ 79,639 $ 93,420 $ 93,420 $ 119,471 $ 26,051 27.89% REVENUES 67,544 139,285 112,200 87,000 133,000 $ 20,800 18.54% OPERATING TRANSFERS -IN 200,000 280,000 328,000 328,000 245,000 $ 83,000 -25.30% 418,444 405,505 442,711 388,948 411,002 31,709 7.16% EXPENDITURES OPERATING TRANSFERS -OUT - - - - $ 79,639 $ 93,420 $ 96,908 $ 119,471 $ 86,469 $ (4,439) -4.88% ENDING FUND BALANCE RESERVE FUND BEGINNING FUND BALANCE $ 1,776,380 $ 2,276,380 $ 2,276,380 $ 2,276,380 $ 2,276,390 $ REVENUES - - - - $ OPERATING TRANSFERS -IN 500,000 $ - - EXPENDITURES OPERATING TRANSFERS -OUT 200 OW 200,000 $ 2,276,380 $ 2,276,380 $ 2,276,380 $ 2,276,380 $ 2,076,380 $ (200,000) - ENDING FUND BALANCE TREE FUND BEGINNING FUND BALANCE $ 83,322 $ 16,932 $ 23,770 $ 23,770 $ 24,299 $ 529 2.23% REVENUES 39,678 9,700 - 707 1,000 $ 1,000 - OPERATING TRANSFERS -IN - - - $ - - 106,068 2,862 15,000 178 15,000 0.00% EXPENDITURES OPERATING TRANSFERS -OUT - - - - - ENDING FUND BALANCE $ 16,932 $ 23,770 $ 8,770 $ 24,299 $ 10,299 $ 1,529 17.43% CAPITAL PROJECTS FUND BEGINNING FUND BALANCE $ 1,327,938 $ 1,483,060 $ 1,538,868 $ 1,538,868 $ 817,599 $ (721,269) -46.87% REVENUES 414,736 494,903 518,647 418,647 542,084 23,437 4.52% OPERATING TRANSFERS -IN - 330,000 100,000 100,000 200000 100,000 100.00% 259,615 769,095 1,753,583 1,239,916 1,475,385 278,198 15.86% EXPENDITURES OPERATING TRANSFERS -OUT - - - - $ 1,483,060 $ 1,538,868 $ 403,932 $ 817,599 $ 84,298 $ (319,634) -79.13% ENDING FUND BALANCE TOTAL ALL FUNDS BUDGET BEGINNING FUND BALANCE $ 6,329,536 $ 7,024,759 $ 6,263,111 $ 6,263,111 $ 4,635,093 $ (1,628,018) -25.99% REVENUES 6,090,691 5,009,173 5,421,684 5,006,373 5,348,521 (73,163) -1.35% OPERATING TRANSFERS -IN 70Q000 610,000 546,762 546,762 445,000 (101,762) -18.61% 5,395,469 5,770,822 7,404,915 6,634,391 61846.557 558358 7.54% EXPENDITURES OPERATING TRANSFERS -OUT 700,000 610,000 546 762 546,762 445 000 101:762 18.61 % $ 7,024,758 $ 6,263,110 $ 4,279,880 $ 4,635,093 $ 3137057 $ (1,142,823) -26.70% ENDING FUND BALANCE 10/5/2010 2011 Preliminary Budget DRAFT COPY 2008 Actual 2009 Actual 2010 Adopted Budget 2010 Forecast 2011 Preliminary Budget GENERALFUND Beginning Fund Balance 2,839,677 3,163,000 2,324,925 2,324,925 1,388,710 REVENUE Properly and Sales Tax 3,873,690 3,413,988 3,574,055 3,343,906 3,457,607 Licenses & Permits 682,583 258,136 402,050 351,003 486,500 Intergovernmental 405,528 352,945 386,172 479,949 371,130 Charges for Goods/Services 12,625 8,678 11,500 12,405 12,000 Fines & Forefeitures 115,334 112,635 130,000 130,000 130,000 Miscellaneous Revenue 207,420 62,403 119,060 24,756 21,200 Proceeds From Sales of Capital Assets 0 0 0 0 0 Pass Through Non -Revenues 259,269 156,499 168,000 158,000 194,000 TOTAL GENERAL FUND REVENUE $ 5,556,448 $ 4,365,284 $ 4,790,837 $ 4,500,019 $ 4,672,437 EXPENDITURES Legislative 21,061 17,445 46,500 46,500 24,000 Municipal Court 105,816 108,151 128,500 128,500 120,500 Executive 190,957 181,359 200,172 187,226 182,725 Finance 177,599 206,956 247,962 274,892 283,303 Legal 123,040 103,399 145,000 145,000 130,000 Central Services 420,197 444,238 452,153 459,135 444,632 Police 1,694,066 1,832,353 1,931,242 1,842,484 1,935,384 Fire & Medical 631,334 667,309 711,636 711,636 719,999 Emergency Preparedness 102,445 95,881 81,550 82,653 83,100 Development Services 735,953 528,476 732,802 654,123 676,503 Recreational -Lifeguards 29,938 22,946 29,700 28,706 30,800 Parks 300,718 384,846 367,641 328,615 314,224 Operating Transfers Out 700,000 610,000 546,762 546,762 245,000 TOTAL GENERAL FUND EXPENDITURE! $ 6,233,125 $ 5,203,359 $ 6,621,621 $ 5,436,233 $ 5,190,170 Ending Fund Balance 3,163,000 2,324,925 1,494,141 1,388,710 870,978 STREET FUND Beginning Fund Balance 230,539 79,639 93,419 93,419 119,471 REVENUE Nat'l Pollution Discharge Elim - 75,000 50,000 24,000 70,000 Motor Fuel Tax(Unrestricted) 67,544 64,285 62,200 63,000 63,000 Operating Transfers In 200,000 280,000 328,000 328,000 245,000 TOTAL STREET FUND REVENUE $ 267,544 $ 419,285 $ 440,200 $ 415,000 $ 378,000 EXPENDITURES $ 418,444 $ 405,505 $ 442,711 $ 388,948 $ 411,002 Ending Fund Balance 79,639 93,419 90,907 119,471 86,469 RESERVE FUND Beginning Fund Balance 1,776,380 2,276,380 2,276,380 2,276,380 2,276,380 Operating Transfers In 500,000 - - - Operating Transfers Out - - - - 200,000 Ending Fund Balance 2,276,380 2,276,380 2,276,380 2,276,380 2,076,380 CAPITAL PROJECTS Beginning Fund Balance 1,327,938 1,483,060 1,538,868 1,538,668 817,599 REVENUE REET Tax 1 & 2 414,736 475,353 500,000 400,000 425,000 Intergovernmental - 19,550 18,647 18,647 117,084 Operating Transfers In 330,000 100,000 100,000 200,000 TOTAL CAPITAL REVENUE $ 414,736 $ 824,903 $ 618,647 $ 518,647 $ 742,084 EXPENDITURES $ 259,615 $ 769,095 $ 1,753,683 $ 1,239,916 $ 1,475,385 Ending Fund Balance 1,483,060 1,538,868 403,932 817,599 84,298 10/5/2010 2 D D C W o w m r-mmo m mr mKr-Q N omo Ol CD 7 CD 7Z' < Cp N 3 ,0.. 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Pi w V 00 Ln 00 m 14 +QO� v� tDnD p � m Ln N m ram-+ G O W O A G m m W W In i D� 41 tD A D7 cn m eF rF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Ordinance No. AN ORDINANCE OF THE CITY OF MEDINA, WASHINGTON RELATING TO UTILITY TAXES; AMENDING MMC SECTION 5.04.030; ADOPTING NEW UTILITY TAX RATES; PROVIDING FOR SERVERABILITY; PROVIDING FOR AN EFFECTIVE DATE WHEREAS,...; and WHEREAS, state law provides at RCW 35.21.865 that a change in the rate of tax it imposes on the privilege of conducting an electrical energy, naturaL.gO; or telephone business may take effect before the expiration of sixty days following the en tin t of the ordinance establishing the change; and NOW THEREFORE, THE CITY COUNCIL OF., THE CITY DO ORDAIN AS FOLLOWS 11 VV�rwVll 1• C"1111<:111i111G116 l Medina Municipal Code is hereby read as follows: 5.04.030 Tax — Imposed. From and after collected from F business for hi` corporate limits any teiep al gross service WASHINGTON, )osed . Section 5.04.030 of the in legislative,"revision marks) to ,there: i� r.levied upon and there shall be engaged in carrying on the following ;ommodity or a service within or partly within the for the privilege of so doing business as hereinafter there shallbe levied a tax equal to o@PoL** percent ion exchange revenues from business and residence sage units) from business in the city. B. Upon every person, firm or corporation engaged alone or in conjunction with another in the business of selling or leasing telephone or telegraph or related communication equipment,' at retail or to or for the public and thereafter installing, maintaining or repaiftthe same, a fee equal to gefe**** percent of the total gross income from such business in the city; provided further, that this fee or tax shall not be imposed on any business otherwise subject to fee or tax under this chapter nor on the business of selling or installing telephone or telegraph or related communication equipment to telephone or telegraph companies taxed under this chapter. C. There is levied a tax on the sale, delivery or distribution of electricity or electrical energy and for the privilege of carrying on said business, such tax to be equal to e**** percent of the total gross revenue derived from sales of such electricity to 1 of 4 I ultimate users within the city; provided, however, that there shall not be any tax 2 levied for the installation charges of electrical units. 3 4 D. There is levied a tax on the sale, delivery, distribution or furnishing of natural gas 5 for domestic, business or industrial consumption and for the privilege of carrying on 6 said business, such tax to be equal to **** percent of the total gross income from 7 such business in the city; provided, however, that there shall not be any tax levied for 8 installation charges of gas energy units. 9 10 E. There is levied a franchise fee on the business of the operation and sale of water 11 and water service and for the privilege of carrying on §aid business, such franchise 12 fee to be equal to zero percent of the total gross revue derived from the sale of 13 water within the city. 14 15 F. There is levied a franchise fee on the business of the operation and sale of services 16 for sewer utilities and for the privilege of carrying on said busxziess, such franchise 17 fee to be equal to zero percent of the total gross revenue derived rpm the sale of 18 sewer services within the city. 19 20 G. There is levied a tax on the business of solid waste collection, transportation, or 21 disposal and for the privilege of carrying on said business, such tax to be equal to 22 **** percent of the total grgss reveriu�„ derived ",from solid waste collection, 23 transportation, or disposal within the pity. 24 25 H. There is levied unon and`there shall be collected from every person engaged in the 26 usiness of nrovidinLY cable television service for a Monet ry consideration within or 27 p�tr ly within 11 , ' Us of the city an anrn,al tax for the nrivilUe of o 28 doincr. such.tax to be:_enual, **.12ercent-bf,the total gross income derived from 29 subscribers` revenues frprovided in the city. Cable 30 e i�sion servkc �i-mean ''L one-way" i6nsmission of video nrogra m'ng and 31 associated nonvideo s1 i,als to siib cribers together with subscriher interaction, if any, 32 whicl is provided m connection with video programming 33 34 Section 2. keferendum -AU thorized. A referendum petition to repeal this ordinance may 35 be filed with the City Clerk within,seven days of passage of this ordinance. Within ten days of such 36 filing, the City Clerk shah confer .with the petitioner concerning form and style of the petition, issue 37 the petition an identification number, and secure an accurate, concise, and positive ballot title from 38 the designated local official. The petitioner shall have thirty days in which to secure the signatures of 39 not less than fifteen percent of the registered voters of the city, as of the last municipal general 40 election, upon petition forms that contain the ballot title and the full text of the measure to be 41 referred. The City Clerk shall verify the sufficiency of the signatures on the petition and, if sufficient 42 valid signatures are properly submitted, shall certify the referendum measure to the next election 43 ballot within the city or at a special election ballot as provided pursuant to RCW 35.17.260(2). 44 Except as otherwise provided herein, all provisions set forth at RCW 35.17.250 through RCW 45 35.17.360 that are applicable to the character and form for an initiative petition, to the examination 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 and certification thereof, and to the submission to the vote of the people of the ordinance proposed thereby, shall apply to the referendum petition authorized herein and to this ordinance. Section 3. Severability. If any section, sentence, clause, or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of any other section, sentence, clause, or phrase of this ordinance. Section 4. Effective Date. This ordinance shall take effect sixty (60) days after its publication or the publication of a summary of its intent and contents. PASSED BY THE CITY COUNCIL ON THIS DAY OF , 2010 AND SIGNED IN AUTHENTICATION OF ITS PASSAGE ON fiHE � DAY OF , 2010. 3of4 Approved as to form: Mayor Attest: Bruce Disend, City Attorney Rachel Baker, City Clerk 4 of 4 I Ordinance No. 2 3 AN ORDINANCE OF THE CITY OF MEDINA, WASHINGTON RELATING TO 4 FRANCHISE FEES; REPEALING MMC SECTION 5.04.015; AMENDING MMC SECTION 5 5.04.030; ADOPTING A NEW CHAPTER ENTITLED FRANCHISE FEES; PROVIDING 6 FOR SERVERABILITY; PROVIDING FOR AN EFFECTIVE DATE 7 8 9 WHEREAS,...; and 10 11 NOW THEREFORE, THE CITY COUNCIL OF THE CIT' -bF MEDINA, WASHINGTON, 12 DO ORDAIN AS FOLLOWS 13 14 Section 1. Reveal of Section 5.04.015 (Applicability to franchise fees). Section 15 5.04.015 of the City of Medina Municipal Code is hereby repealed m `its entirety. 16 17 Section 2. Amendment of Section 5.04A30 (Tax — Imposed) ,' $ection 5.04.030 of the 18 Medina Municipal Code is hereby amended (amend"ments shown in legislative revision marks) to 19 read as follows: 20 21 5.04.030 Tax — Imposed. 22 23 From and after April.1, 1986, there is levied upon and there shall be collected from 24 every person, firm or corporation engaged in carrymg,on the:following business for 25 hire or for sale ©f a commodity or a service within .or partly within the corporate 26 limits of the city- tax for the privilege olf doing business as hereinafter defined. 27 28 A. Upon any telephone ,business, there shall:'be levied a tax equal to zero percent of 29 the total gross subscriber station exchange revenues from business and residence 30 telephone service-( cludmgmessage units)`f om business in the city. 31 32 B. Upon every person;";firm or corporation engaged alone or in conjunction with 33 another in the business of selling or leasing telephone or telegraph or related 34 communication equipment at retail or to or for the public and thereafter installing, 35 maintaining or repairing the same, a fee equal to zero percent of the total gross 36 income from such business in the city; provided further, that this fee or tax shall not 37 be imposed on any business otherwise subject to fee or tax under this chapter nor on 38 the business of selling 'or installing telephone or telegraph or related communication 39 equipment to telephone or telegraph companies taxed under this chapter. 40 41 C. There is levied a tax on the sale, delivery or distribution of electricity or electrical 42 energy and for the privilege of carrying on said business, such tax to be equal to zero 43 percent of the total gross revenue derived from sales of such electricity to ultimate 44 users within the city; provided, however, that there shall not be any tax levied for the 45 installation charges of electrical units. 46 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 D. There is levied a tax on the sale, delivery, distribution or furnishing of natural gas for domestic, business or industrial consumption and for the privilege of carrying on said business, such tax to be equal to zero percent of the total gross income from such business in the city; provided, however, that there shall not be any tax levied for installation charges of gas energy units. E. Yr , G-There is levied a tax on the business of solid waste collection, transportation, or disposal and for the privilege of carrying `on said businb, e _ equal to zero percent of the total gross revenue `derived fr`(Yrn solid waste collection, transportation, or disposal within'the city. Section 3. New Chapter to be Added to Title 5 (Franchise Fees). Title 5 of the Medina Municipal Code is hereby amended by the addition of a new chapter to be known and referred to as , "Franchise Fees", consistinof6 sections, andreadin Alows serves, any and. all of its right and authority to impose for�tlie'City°rs authorization given to a franchisee to use All persons given a grant pursuant to a franchise, license, permit or other authorization to use and occupy the public rights -of -way to provide services, whether or not such services are pto ided to the general public, shall, in consideration for such grant and to the extent.,tle City may lawfully require such persons to do so, pay franchise fees to the` it in accordance with the terms and conditions of the applicable franchise agreement, license, permit or other authorization. Except as may be otherwise provided in the franchise, license, permit or other authorization, the obligation of such person to pay such franchise fees to the City shall survive the expiration, termination or revocation of the franchise, license, permit or other authorization and shall be in full force and effect until such time as a new franchise, license, permit or other authorization granting use and occupancy of the public rights - of -way becomes effective or such person removes its facilities, if any, from the public rights -of -way. 2of5 I Fees and Compensation Not a Tax. Franchise fees, and any other compensation charged and paid for use or occupancy of the public rights -of -way provided for in a franchise, license, permit or other authorization, whether financial or in -kind, are separate from, and additional to, any and all federal, state, local, and city taxes as may be levied, imposed or due from a franchisee, permittee or licensee, its customers or subscribers or on account of the lease, sale, delivery or transmission of services. 4. Franchise Fee — Payment. A. Except as may be otherwise provided in an applicable franchise, license, permit or other authorization, the fee imposed by 'this chapter shall be due and payable in quarterly installments and remittance shall be made #on or before the thirtieth day of the month next succeeding the end of the quarterly period in which the tax accrued. Such quarterly periods areas follows: 1. First quarter, Januar 2. Second quarter, Apr' 3. Third quarter, July, 4. Fourth quarter, Octo B. On or before file with the cif information as t. amount of the fr as may be linear feet: of c records reflectir records shall be his duly authori for the fixing of a fee. wJ, - June; the person required "to pay such franchise fees shall ten return, upon -such ' form and setting forth such easonably require, together with the payment of the AhOwise provided in an applicable franchise, license, permit or a or when franchise fees are not based upon revenues (e.g., ,upancy), . each franchisee, licensee and permittee shall keep the amount of revenues subject to the franchise fee, and such )en at all reasonable times to the inspection of the city clerk, or i subofdivates, for verification of said franchise fee payment or e franchise fee of a person who shall fail to make such returns. C. Promulgation of rules and regulations. The clerk for the city is authorized to adopt, publish and enforce, from time to time, such rules and regulations for the proper administration of this chapter as shall be necessary, and it is a violation of this chapter to violate or to fail to comply with any such rule or regulation lawfully promulgated under this chapter; provided that, in the event of a conflict between a term, condition, or provision of an applicable franchise, license, permit or other authorization, and a rule or 3of5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 regulation authorized hereunder, the term condition or provision of the franchise, license, permit or other authorization shall control to the extent of the conflict. 5. Unauthorized Use. Any person occupying or using the public rights -of -way who is required under the Medina Municipal Code to obtain a franchise, license, permit or other authorization from the City prior to such use or occupancy as a condition of such use and occupancy to provide services, shall be subject to payment of franchise fees for the period of such unauthorized use and occupancy, to the extent that the City would have authority to impose franchise fees if such person had obtained a franchise prior to such use or occupancy. Such frad6h se fees shall be assessed and calculated in the same manner and rate or amount as provided for under similar franchises, licenses, permits or other authorizations' in the City, and if no such similar franchises, license, permits or pother authorizationf :exist in the City, in the same manner at the highest rate of, amount as may be provided for under similar franchises, licenses, permits b�C"bother authorizations trimparable jurisdictions in Washington state. 6. Violation — Penalty. Except as may be otherwise provided in an applicable"`franchise, if any person subject to this chapter shall fail to pay any franchise fee rewired by this chapter within 30 days after the;due date thereof, there shall, be added to such franchise fee a penalty of �S percent of the amount of such franch -se fee, and any franchise fee due under tlfl' hapter and unpaid, and} all penalties thereon, shall constitute a debt to the city and may be collected by courtproceedings, which remedy shall be in addition; to all other re-medies:.and penalties provided for in the Medina Municipals"Code, ,the applicable franchise," permit, license or other authorization, of-,as:provided at:, dw or in equity. Secti6n, .4. Severability; If any "section, sentence, clause, or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionali .s all not affecx .the validity of any other section, sentence, clause, or phrase of this ordinance. Section 5. Effective=Date. This ordinance shall take effect five (5) days after its publication or the publication of a summary of its intent and contents. PASSED BY THE CITY COUNCIL ON THIS _ DAY OF 2010 AND SIGNED IN AUTHENTICATION OF ITS PASSAGE ON THE DAY OF , 2010. 4of5 Approved as to form: Mayor Attest: Bruce Disend, City Attorney Rachel Baker, City Clerk 5 of 5