ci.sultan.wa.usci.sultan.wa.us/wp-content/uploads/City_Hall/City... · Web viewParameter Average GPD Percent Water Produced from Lake 16 487,000 95.5 Water Purchased from Everett

CITY OF SULTAN

COUNCIL MEETING – COMMUNITY CENTERJuly 10, 2008

6:00 PM Water/Sewer Comprehensive Plans – Joint workshop Council and Planning Board

7:00 PM CALL TO ORDER - Pledge of Allegiance and Roll Call

CHANGES/ADDITIONS TO THE AGENDA

PRESENTATIONS

COMMENTS FROM THE PUBLIC : Citizens are requested to keep comments to a 3 minute maximum to allow time for everyone to speak. It is also requested that you complete a comment form for further contact.COUNCILMEMBER COMMENTS

HEARINGS1) Ordinance 983-08 - Title 21 Amendments

STAFF REPORTS – Written Reports Submitted

CONSENT AGENDA : The following items are incorporated into the consent agenda and approved by a single motion of the Council.

1) Approval of the June 26, 2008 Council Meeting Minutes2) Approval of the June 26, 2008 Public Hearing Minutes on the Sultan Basin Road Vacation3) Approval of the June 26, 2008 Public Hearing on the Comcast Cable Franchise4) Approval of Vouchers5) Library Board Appointments6) IT Service Contracts – Iron Goat7) Skateboard Park Equipment Purchase8) Interlocal Agreement with Town of LaConnor - Sludge

ACTION ITEMS : 1) Ordinance 983-08 - Title 21 Amendmenst – 1st reading2) Ordinance 985-08 - Stormwater Utility3) Stormwater Rates4) Ordinance 988-08 - Cable Franchise5) Ordinance 987-08 – Title 5.28 Amendments6) Shoreline Master Program7) Planning Board Appointments

DISCUSSION : Time Permitting

PUBLIC COMMENT ON AGENDA ITEMS ONLYCOUNCILMEMBER RESPONSE TO PUBLIC COMMENT ON AGENDA ITEMS

Executive Session: Potential Litigation and PersonnelAdjournment - 10:00 PM or at the conclusion of Council business.

ADA NOTICE: City of Sultan Community Center is accessible. Accommodations for persons with disabilities will be provided upon request. Please make arrangements prior to the meeting by calling City Hall at 360-793-2231. For additional information please contact the City at [email protected] or visit our web site at www.ci.sultan.wa.us

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http://www.ci.sultan.wa.us/

SULTAN CITY COUNCIL AGENDA ITEM COVER SHEET

ITEM NO: City Council/Planning Board Joint Workshop

DATE: July 10, 2008

SUBJECT: Water /Sewer Comprehensive Plans

CONTACT PERSON: Deborah Knight, City Administrator

ISSUE:

The issue before the City Council and Planning Board is to review the General Sewer Plan Amendment No 2 (Attachment A) and Water System Plan Amendment No 2 (Attachment B) .

STAFF RECOMMENDATION:

The Council and Planning Board should review the policy alternatives, capital improvements, and financing strategies discussed during the Joint Meetings in April and May and ensure the Amendments are consistent with the direction given to staff and consultants.

On July 10 City Staff and consultants will discuss the specifics of each plan amendment; and will answer Council’s questions. Further discussion will occur on July 24, 2008. Once adopted, any changes affecting the Capital Facilities Plan or Comprehensive Plan will be incorporated into the final versions brought to Council for adoption in September.

SUMMARY:

Two documents are being presented for Council’s review General Sewer Plan Amendment No 2 (Attachment A) and Water System Plan Amendment No 2 (Attachment B) . Council will be asked to adopt these amendments on July 24, 2008.

The amendments are prompted by revisions to the City’s Capital Facilities Plan and Comprehensive Plan, currently under public review.

The Growth Management Hearings Board has found that Sultan’s 2004 Capital Facilities Plan was not adequate to demonstrate that anticipated future growth could be accommodated by improved infrastructure, including its sewer and water systems.

An update to the Comprehensive Plan has been prepared to correct this deficiency. Adoption of the updated Comprehensive Plan and Capital Facilities Plan in September

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2008 will meet the requirements of the Growth Management Act, and ensure that the impacts of growth as projected in 2004 will be properly mitigated by a well-planned infrastructure system.

The documents being presented to Council include amendments to the General Sewer Plan and Water System Plan to be consistent with the revisions proposed to the Comprehensive Plan. Each plan amendment includes:

2008 revisions to population, employment and land use assumptions; New or revised goals and policies; Updated maps Capital improvement plan and financing strategy.

What’s Changed

During the planning horizon, sewer service will be available to all properties in the City and in the City’s urban growth area. Property owners with functioning septic systems may be allowed to pay a hook up fee for utilities extended past their properties without having to connect. These owners may be required to sign annexation or non-protest ULID agreements; and may be required to abandon their septic systems when new construction occurs on their property.

Design criteria have been revised to better reflect the standards to be used by the City in designing water and sewer improvements. For the water utility, the water distribution system will be designed to deliver a fire flow of 1,000 gallons per minute (GPM) at fire hydrants in residential areas, and 1,500 GPM in non-residential areas.

For the sewer system, the sewerage piping system will be designed to contain all flow projected to enter the sewer system during a 10-year, 24-hour, storm event; and peak hour flow will be contained within the pipes as flowing full without surcharging flow up into manholes.

Water service provided within the Urban Growth Area (UGA), plus the current water residents already connected that are outside the UGA.

Management of private wells inside the city once water service is available to the resident, but not to force connection or decertification.

Fire flow standard set at minimum requirement of 1,000GPM for residential and 1,500 GPM for non-residential properties.

Water supply from Everett as supplemental to Lake 16.

Require connection to sewer when new lines are laid and related financing when lines are extended. Residents are not required to connect to existing lines unless septic tanks fail or the property is redeveloped.

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Alternative sewer collections systems were allowed, but do not prefer grinder pumps. Although the board wants to keep in mind cost benefit.

Code revisions are being proposed to clarify when and how property owners will be expected to pay fair-share costs for extension of the planned sewer and water systems.

Key changes, as summarized in the Draft Comprehensive Plan revision, are as follows:

Water Utility:

1. A defined water service area has been identified for the City and water service will not be provided to properties outside that boundary.

2. Property owners within the water service area desiring water service from the City will be required to annex into the City.

3. Standards for fire flow rates have been reduced to levels established by the National Fire Code, which may mean that a lower, but still safe rate of water flow may be available to fight fires at some properties.

4. Fire walls and fire sprinklers will be required in some non-residential structures at property owner expense.

5. New development will pay to construct a new Northeast Reservoir within the next decade, either as a condition of plat approval or through General Facilities Charges.

6. Property owners with existing private wells desiring to connect to the City water system and retain their private well for irrigation will be required to keep the private well irrigation system physically separate from the City water system as a backflow prevention valve will not be an accepted separation.

7. Reclaimed water from the wastewater treatment facility may become available to some customers for irrigation use or other non-potable purposes in lieu of potable water from the City water system.

Sewer Utility:

1. Sewer service will be made available to all properties within the urban growth area and all properties that develop or redevelop within the UGA will be required to connect to the City sewer system as new on-site sewage systems will not be allowed.

2. Projected population to be served by City sewers will increase to 11,119 people by 2025 and require increased wastewater treatment capacity to be provided by a membrane bioreactor process that will be paid for by new development through increased capital facilities charges as defined by the recent sewer rate study.

3. New sewer extensions may require some property owners to participate in utility local improvement districts.

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4. Extension of sewer mains past existing properties now served by on-site sewage systems will require the property owners to pay for the benefit conferred by the sewer but will not require actual connection unless the on-site system fails, the structure is remodeled, the property is sold, or it changes ownership.

5. Reclaimed water from the wastewater treatment facility may become available to some customers for irrigation use or other non-potable purposes in lieu of potable water from the City water system.

6. Sewer extensions to some properties will be served through new local sewage pump stations, which will be built in the local neighborhood resulting in some minor noise and visible appurtenances.

RECOMMENDED ACTION:

The Council and Planning Board should review the policy alternatives, capital improvements, and financing strategies discussed during the Joint Meetings in April and May and ensure the Amendments are consistent with the direction given to staff and consultants.

ATTACHMENTS

Attachment A –Water System Plan Amendment No. 2Attachment B – General Sewer Plan Amendment No. 2

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Water System Plan

AMMENDMENT NO 2

June 2008 Draft

Prepared By

BHC Consultants LLC720 Third AvenueSeattle, WA 98104

John C Wilson PEProject Manager

14681

EXPIRES

STATE OF WASHINGTON

R

E G I S T E R E D

PROFE SS I ONAL ENG INEER

C. LIW SON,JO

HN JR

.

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___________________________ _________________ 2008John C Wilson PE

City of SultanWATER SYSTEM PLAN

AMENDMENT NO 1June 2008 Draft

Purpose

The Growth Management Hearings Board identified a significant GMA compliance issue in that the City’s planning for capital facilities was not adequate to demonstrate that anticipated future growth could be accommodated. An update to the Comprehensive Plan has been prepared to correct this deficiency. Projections outlined in the 2004 Plan and EIS have been changed substantially, as have the capital cost estimates. Adoption of the updated Comprehensive Plan and Capital Facilities Plan in late 2008 will meet the mandates of the Hearings Board, and ensure that the impacts of growth as projected in 2004 will be properly mitigated by a well-planned infrastructure system.

This Amendment No 2 to the Water System Plan for the City documents how the water system will be upgraded to be consistent with the Comprehensive Plan.

Growth Management Boundary

The growth management boundary as shown in Figure W-1 has been revised to reflect the current assignment to the City of Sultan by Snohomish County. The current boundary reflects a modest change from the 2004 boundary.

Some changes have also been made to the land use planning for the City, though these did not result in significantly different development densities than were used in the previous sewer planning efforts.

The City water system planning is conducted in compliance with the North Snohomish County Coordinated Water System Plan as updated and amended. In particular, the City coordinates water system planning as needed with the adjacent water purveyors including the City of Everett, Snohomish County PUD, Highland Water District, and Startup Water Association.

The City currently serves two customers south of US-2 and west of the Sultan River that are outside the city limit and outside the Urban Growth Area as shown on Figure W-1. Water service to this area will continue; however the City will not extend water service into other areas that are not within the UGA.

Background

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Lake 16 remains the primary source for the existing water supply to the City. The City filed in 1974 a water right claim for 2.88 million gallons per day (MGD) but does not yet have a formal water right. The City updated this claim in 1991 and the Department of Ecology stated by letter of November 3, 1993, that the claim held potential for becoming vested. The actual measured capacity from Lake 16 through the 11,800 feet of transmission piping is 1.36 MGD.

The City executed a Water Supply Contract with the City of Everett on 30 June 1999 for Pipeline 5 as a supplemental source of water supply for a Maximum Day Demand in 2025 of 2.91 MGD of treated water. The pipeline built to implement this Contract has a gravity flow capacity of 3.84 MGD; and more when the City of Everett activates pumping into Pipeline 5. This capacity is shared with the Snohomish County PUD however; so the City of Sultan share is 2.56 MGD.

The City also has two wells rated at 300 gallons per minute (GPM) each located north of the Centennial Park. These wells draw from the Sultan River aquifer; however the water quality does not meet drinking water standards and is currently used only for irrigation. Neither well has been able to actually produce 300 GPM within the past decade.

Sultan’s water filtration plant has a capacity of about 1.36 MGD over 24 hours.

The City currently operates two water storage tanks on the same site as the water filtration plant. The first tank was built in 1978 with a capacity of 1,080,000 gallons. The second tank was completed in 2000 with a capacity of 1,500,000 gallons.

The City water distribution system totals about 25.5 miles of pipe. About 20 percent of the system is asbestos cement. About 12 percent of the system is 4-inch diameter pipe, mostly in the downtown area. The existing water distribution system is shown on Figure W-2 and an inventory of the system is summarized in Table 1.

Table 1Inventory of Water Distribution System Piping (2005)

Pipe DiameterIn inches

Pipe Footage by Material TotalFootageAsbestos Cement PVC Ductile Iron

4 11,800 4,100 15,9006 14,000 1,900 11,540 27,4408 2,400 500 51,630 54,530

10 16,850 16,85012 14,850 14,85014 5,300 5,300

Total 28,200 2,400 104,270 134,870

The northeast portion of the City distribution system can not be adequately supplied by gravity from the water surface elevation in the water storage tanks. A booster pump station serves this area as a high pressure zone as summarized in Table 2.

Table 2

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Booster Pump Station Equipment

Pump Description Gallons per Minute HorsepowerService pumps (two) 100 10High service pump 200 15Fire pump (& backwash) 2,000 100

The fire pump is also used to backwash the filters in the water treatment plant.

Goal and Policies

Maintain and enhance the development and operation of a quality water supply and distribution system that will meet the needs of Sultan's present and future urban service area through implementing the following policies:

1. Provide potable water throughout the service area for consumption and fire protection purposes to Sultan residents and parties who agree to annex in exchange for service.

2. Construct additional storage facilities at locations that will provide sufficient reserves and maintain line pressure for consumption and fire protection purposes.

3. Provide distribution loops that are capable of providing adequate fire flow and pressure requirements throughout the Sultan service area. Maintain fire hydrant distributions and other standards appropriate to the highest public fire protection ratings.

4. Work with Snohomish County, Washington State Department of Ecology, and other public agencies to correct failed septic system problems within the city limits, the urban growth area, and rural areas surrounding the Sultan urban service area to reduce possible contamination of the groundwater reserve and aquifer.

5. Encourage property owners of developed parcels currently served by a private well and within the UGA to connect to the City water system and to transfer their water right to the City. These water rights, together with the rights already possessed by the City for irrigation wells, will be assembled for possible future water supply needs, even should treatment of the groundwater be required.

Where wells remain private for irrigation use, the irrigation system shall remain separate from the City water system and no new backflow prevention valves will be allowed. Existing backflow prevention valves for irrigation systems of existing customers using City water will remain subject to annual inspection.

6. Consider additional incentives for water conservation, surcharge for service outside the city limits, acquisition of groundwater rights, new sources of employment, and other water programs with cost implications. The City currently has a rate structure defining the methodology for monthly service charge, capital facilities charges, service connection and meter cost, and

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various other fees related to operation and maintenance of the water system. A differential exists between residential and non-residential customers, as well as for low-income and elderly.

Design Standards

Standards for water system facilities are defined by WAC 246-290-100 and the ‘Water System Design Manual’ published by the Washington State Department of Health. State Health also issues requirements for water quality and monitoring to ensure compliance with federal drinking water standards. Planning, design, construction, operations, and maintenance for the City water system is conducted in accordance with these standards, plus the following:

The ‘Water System Design Manual’ specifies that the minimum operating pressure is the water distribution system shall not fall below 30 pounds per square inch (PSI) at the water meter, which is normally at the right-of-way line for the served property, and not less than 20 PSI under fire flow conditions.

The City has established the minimum fire flow standard as 1,000 GPM for residential areas and 1,500 GPM for non-residential development in accordance with the National Fire Code. Non-residential construction must also comply with the Fire Code requirements for dividing structures into fire areas according to the class of building construction and providing fire sprinklers.

Lake 16 will remain the primary water source of supply for the City. The connection to the City of Everett Pipeline 5 will provide a supplemental source for peak day demands that exceed the Lake 16 capacity. However, the City recognizes that the Contract with Everett encourages Sultan to manage withdrawals from Pipeline 5 so that peak withdrawal does not exceed 3 times the average withdrawal. Accordingly, average withdrawals will be managed using the storage capacity available in the City water tanks so the withdrawal from Pipeline 5 does not exceed the Contract ratio of peak at 3 times average.

Population Projections

The Puget Sound Regional Council expects the Skykomish Valley area will eventually support 17,026 persons by the year 2010, 20,549 persons by the year 2020, and 23,977 persons by the year 2030. The projected Sultan population of 11,1191 in 2025 would represent about half of these residents.

By the year 2012, the County’s Buildable Lands Report (BLR) expects approximately 7,300 persons will reside in the UGA of which 90% will reside in city limits. The BLR further expects the current UGA will eventually support a population of 11,119 persons at build-out in 2025. It is assumed that the entire UGA will be incorporated into the City by that time. This is an official population estimate and is used by the City for its growth and capital facilities planning.

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In 2006, there were approximately 1,010 jobs located in Sultan. Snohomish County’s Buildable Lands Report and the City’s Comprehensive Plan estimate an increase to 2,000 jobs in Sultan by 2025. These projections are summarized in Table 3.

Table 3Population and Development Projections

Parameter 2005 2006 2007 2010 2012 2014 2025City Population 4,225 4,440 4,530 5,874 6,382 7,386 11,11

9UGA Population 4,785 6,066 7,300 8,028 11,11

9City Housing Units 1,713 1,739 2,066 2,505 2,920 4,464

Parameter 2005 2006 2007 2010 2012 2014 2025Average Household Size 2.78 2.78 2.74 2.71 2.68 2.66 2.62Housing Vacancy Rate 5.00% 5.00% 5.00% 5.00% 5.00% 5.00% 5.00%Employment 1,010 2,000UGA Area in Acres 2,304 2,304

Buildable 954 954Unbuildable 1,350 1,350

Water Demand Projections

The existing water supply and demand parameters have been computed in gallons per day from the flows recorded for 2007 as reported by the City are summarized in Table 4.

Table 42007 Water Supply and Demand Parameters

Parameter Average GPD Percent Water Produced from Lake 16 487,000 95.5Water Purchased from Everett 23,000 4.5

Total Average Day Water 510,000 100Filter Backwash 46,000 9.0Residential Billings 239,000 46.9Non-Residential Billings 165,000 32.4Water Lost 60,000 11.7

Unit water consumption for 2007 as derived from Table 4 can be summarized as follows:

Residential = 239,000 GPD / 4,530 people = 52.8 GPD per personNon-Residential = 165,000 GPD / 1,010 employees = 163 GPD / employee

Peak day water demand in 2007 was 1,023,000 GPD through the filter plant on July 12th, which is a peak factor of about 2.1 x average day demand. However, 2006 experienced a peak day of 1,134,000 GPD on August 7th, which was a peak day factor of about 2.2 x the 2006 average day demand.

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Water conservation activities are projected to reduce water demands per employee; however, residential water demands may increase as new home are built with more water-using appliances. Table 5 summarizes the projected 2025 population to be served by the water system and the projected employment to project the future water demand for that year.

Table 5Projected 2025 Water Demands

Parameter Quantity Unit GPD Total GPDPopulation 11,119 55 612,000Employment 2,000 130 260,000Backwash 8 % --- 86,000Water Lost 11 % --- 118,000

Average Day Demand 1,076,000

Peak day demand in 2025 is projected to decline to about 2.0 x average day demand to about 2,150,000 GPD. The increase in average day demand will create more days when Lake 16 can not meet the demand so water purchase from the City of Everett is projected to increase to an average of about 30 percent or about 320,000 GPD.

Projected Needs Through 2025

Improvements to the water distribution piping system fall into categories as described below: New Streets listed in the Transportation Improvement Program (TIP) will have a

water main at least 8-inch diameter. Reconstructed Streets listed in the TIP will have a water main at least 8-inch in

diameter, unless an adequate water main is already in place. Main Extensions in streets within UGA but not included in the TIP list will have a

water main at least 8-inches in diameter. Replacement Pipes at least 8-inch diameter are needed in several locations where

the existing water main is under sized, of obsolete material, or otherwise defective.

Table 6 summarizes the water mains to be installed concurrently with street improvements listed in the Transportation Improvement Program. Construction costs include only the water facilities with crushed backfill. The street and surface improvements are in the TIP.

Table 6Water Improvements Included with Transportation Improvements

TIP No Project Description

MinDiamete

r

Feet of Pipe

Construction

Cost

Project Cost

T-24 New collector (339th SE - Sultan Basin Rd) 8 5,400 $648,000 $907,000

T-25 Foundry Road (Cascade View - railroad) 8 1,400 $168,000 $235,000

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T-26 New collector (339th SE - Sultan Basin Rd) 8 5,800 $696,000 $974,000

T-27 Extend E Main St to 149th St SE 8 500 $60,000 $84,000

T-28 Emergency access (BNSF and Skykomish R) 8 1,300 $156,000 $218,000

T-29 Extend Kessler Dr. (Bryant Rd. - 124th St) 8 2,700 $324,000 $454,000

T-31a New north-south arterial (US-2 - 124th St) 8 8,800 $1,056,000 $1,478,000

T-31c 330 Ave SE just north of US-2 8 700 $84,000 $118,000

T-32a Rice Rd /339th (132nd to UGA boundary) 8 1,400 $168,000 $235,000

T-32b Extend Rice Rd /339th (UGA - 124th) 8 1,300 $156,000 $218,000

T-33 New arterial (Old Owen - Sportmans Park) 8 2,000 $240,000 $336,000

T-35 Cascade View Dr (US-2 - 331st) 8 1,600 $192,000 $269,000

T-36 138th St (Sultan Basin Rd - 339th Ave SE) 14 exists 0 $0 $0T-38 1st St (High Ave to Trout Farm Rd) 8 4,700 $564,000 $790,000

T-41 339th Ave (Sultan Startup Rd - 132nd St) 8 1,900 $228,000 $319,000

TIP No Project Description Diamete

rFeet of

Pipe

Construction

Cost

Project Cost

T-42 Sultan Basin Rd (138th - 124th St) 12 exists 0 $0 $0

T-43 Walburn Road (11th St - Sultan Basin Rd) 8 1,700 $204,000 $286,000

T-44 Extend Pine St (9th - Walburn) 8 * 1,300 $156,000 $218,000

T-45 Alder St (4th - 8th St) 8 2,700 $324,000 $454,000

T-47 Trout Farm Rd (307th - 125th) 8 * 2,500 $300,000 $420,000

T-48 Gohr Road (1st St - 132nd SE) 8 exists 0 $0 $0

T-49 Gohr Road (132nd Ave - about 128th) 8 2,100 $252,000 $353,000

T-51 3rd Street (Main - High) 8 2,500 $300,000 $420,000T-57 132nd St. (Sultan Basin - Trout Farm Rd) 8 6,600 $792,000 $1,109,000T-58 132nd St SE (Rice - Sultan Basin Rd) 8 5,300 $636,000 $890,000T-61 6th Street (Main - Birch) 8 700 $84,000 $118,000

T-62 124th Street (Sultan Basin Rd - water plant) 12 exists 0 $0 $0

T-65 124th Street (water plant - Trout Farm Rd) 8 2,500 $300,000 $420,000

Subtotal 67,400 $8,088,000 $11,323,000Note: * indicates some 8-inch pipe exists for part of the length required

Table 7 shows existing water mains to be replaced by 2025 that are not included in the TIP. Construction costs therefore include street patching.

Table 7Water Main Replacements

Project Project Description Diamete

rFeet of

PipeConstruction

CostProject

Cost

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R-1 307th Street (Trout Farm Rd - 124th) 8 1,600 $384,000 $538,000R-2 1st Street (Main - High St) 12 2,800 $672,000 $941,000R-3 along US-2 (Marcus and Old Owen) 8 1,900 $456,000 $638,000R-4 along US-2 (Main St and Foundry Dr) 8 6,300 $1,512,000 $2,118,000R-5 in Sultan Basin Rd and US-2 8 3,500 $840,000 $1,176,000R-6 3rd Street (Main - High St) 8 2,700 $648,000 $907,000R-7 Date Street (3rd Street - 8th Street) 8 2,000 $480,000 $672,000R-8 Sultan River Crossing 12 600 $500,000 $600,000R-9 Sultan Basin Rd PRV Station --- --- $30,000 $50,000

Subtotal 21,400 $5,542,000 $7,640,000

Table 8 summarizes new water mains to be installed by 2025 in locations not part of the TIP for 2025. These new City water mains will be installed in existing street rights-of-way and costs include patching of the existing street but not upgrading the street to any higher standard.

Table 8New Water Main Extensions

Project Project Description Diameter Feet of

PipeConstruction

CostProject

CostN-1 6th/7th Street (Alder - Date St) 8 900 $216,000 $302,000N-2 8th Street (140th - high school loop) 8 1,200 $288,000 $403,000N-3 Sultan Basin Rd to new water tank 8 2,800 $672,000 $941,000N-4 Trout Farm Rd (125th St - end) 8 1,900 $456,000 $638,000N-5 SR-2 (extend to connect) 8 600 $160,000 $224,000

Subtotal 7,400 $1,336,000$2,508,00

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A new water storage tank is needed for the northeast area to provide adequate operating pressure in the distribution system and residential fire protection. This tank will be located north along Sultan Basin Road on high ground to the east, and outside the current UGA. Tank volume will be at least 70,000 gallon.

In addition to the new Northeast Tank and the water main improvements listed in Tables W-3, 4, and 5 several additional capital projects need to be included in the Needs Assessment as summarized below:

New Pressure Reducing Valve Vaults (four each) Water System Plan Update 2014 (six years after 2008 Amendment) Water System Plan Update 2023 Lake 16 Watershed Upgrades (undefined, though some improvements should

be anticipated) Water Treatment Plant Upgrades (undefined, though added requirements can

be anticipated)

Table 9 summarizes the water facilities needed by 2025 and estimated costs.

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Table 9Needed Water Facilities by 2025

Improvement Category Quantity Construction Cost Project CostWater TIP Improvements 67,400 feet $ 8,088,000 $ 11,323,000Water Main Replacements 21,400 feet $ 5,542,000 $ 7,640,000New Water Main Extensions 7,400 feet $ 1,336,000 $ 2,508,000Northeast Water Tank 70,000 gallons $ 200,000 $ 300,000Pressure Reducing Stations 4 each $ 100,000 $ 150,000Water System Plan – 2014 ---- ---- $ 100,000Water System Plan – 2024 ---- ---- $ 100,000Lake 16 Watershed Upgrade to be defined $ 200,000 $ 300,000Water Treatment Upgrade to be defined $ 500,000 $ 700,000

Total $ 15,966,000 $ 23,121,000

All costs shown in the above tables are shown in 2007 dollars as none of the construction projects have been assigned an implementation date.

Six-Year Capital Improvement Program

In addition to the Project in Progress during 2007, the projects required during the initial six years of 2009 through 2014 are summarized in Table 10 as the capital Improvement Program (CIP).

Table 10Six-Year Capital Improvement ProgramEstimated Project Costs in $ Thousands

Project 2009 2010 2011 2012 2013 2014 TotalSultan Basin Rd PRV 100 100Sultan River Crossing 25 50 425 500Alder Street 54 400 454East Main Street 50 200 250132nd Street 20 70 800 890Rice Road 19 60 240 319Northeast Reservoir 100 50 150NE Reservoir Pipeline 75 75

Totals 125 104 895 289 960 365 2,738

Figure W-4 locates the projects included in the Six-Year CIP.

Financial projections indicate that the existing City water rate structure will be adequate to generate most of the revenue needed to implement the six-year CIP, assuming that the projected growth actually occurs. Table 11 summarizes these financial assumptions.

Table 11

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Six Year Water Capital Improvement RevenueEstimated Revenue on $ Thousands

Projects GFC Grant Debt Contributions

Totals

Sultan Basin Rd PRV 100 100Sultan River Crossing 500 500Alder Street 454 454East Main Street 250 250132nd Street 890 890Rice Road 319 319Northeast Reservoir 150 150NE Reservoir Pipe 75 75

Totals 1,529 1,209 2,738

It is possible that growth will not occur as projected, of course. In that case the water improvements will not be needed and the projects may be delayed until the need does exist and funding becomes available.

Existing Water Rates

A progressive water rate structure has been used by the City for years. Table 12 summarizes an excerpt from the current water rates, which include 600 cubic feet (CF) in the base rate.

Table 12Current Monthly Water Rates

Customer Class 2007 Rate 2008 RateSingle Family – Base Rate $24.25 $25.25

Volume Rate / 100 CF $2.20 $2.28Commercial – Base Rates

¾-inch meter $26.25 $27.251-inch meter $36.75 $38.15

1-1/2-inch meter $47.25 $49.05Volume Rate / 100 CF $2.20 $2.28

Additional rates exist for larger water meter sizes, and a discount rate is available for low-income senior citizens at about 50 percent of the regular residential rate. Water customers outside of the city limits pay a 50 percent surcharge.

The current water capital facilities charge is $5,254 per ERU.

Financial Implications

The total estimated project cost for providing water service to all parcels within the GMA and the water service area to be consistent with the Comprehensive Plan is about $23,121,000 plus and additional $1,263,000 of work in progress for a total of

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$24,384,000. Several strategic considerations are relevant to the financial implications in funding the water system improvements as outlined below:

About $15.48 million in water system project needs are identified as needed to support development projected through the year 2025.

About $8.90 million in water main replacements or work in progress has also been identified.

Basic Needs for the water utility have been defined as the improvements necessary to maintain the established level of service for existing water customers within the present city limits and water service area as summarized below:

$2.2 million may become available from the existing system development charge (with some adjustment for future construction)

Most of the remaining $1.7 million can be raised by reasonable and appropriate contributions from benefiting property owners with the remainder paid through rates by existing customers

A rate study should consider the improvements that need to be built in the near future and verify adequate funding will be available through near term rate adjustments.

Additional improvements defined as ‘Necessary for Development’ throughout the UGA over the longer term are summarized below:

$9.6 million is suitable for financing by property owners or developers Another $1.2 million could be funded from street projects not directly dependent

on developer financing instead of the water rate structure The remainder would be funded through water rates or increased general

facilities charges

Table 13 summarizes the above described financial strategy for the water utility.

Table 13Water System Funding StrategyFinances Shown in $ thousands

Project Classes GFC Rates Property Owners TotalBasic Needs Projects in Progress 1,263 1,263 Replace Existing Facilities 600 600 New Facilities 862 1,176 2,038

Subtotals 2,125 600 1,176 3,901Necessary for Development Replace Existing Facilities 3,328 3,712 7,040 Water Main Extensions 2,451 9,642 12,093 Other Projects 1,350 1,350

Subtotals 7,129 3,712 9,642 20,483Totals 9,254 4,312 10,818 24,384

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Table 12 indicates that the revenue that may be generated by the existing water GFC rate may be adequate to fund the water main extensions and other new facilities when contributions from property owners and developers are included. However, needed replacements of existing facilities may not be adequately funded through existing rates and a rate increase may be needed.

Water main extensions and other new facilities are largely dependent on the expected developments actually occurring and on the schedule expected. Until those projections are validated by events, it is prudent for the City to adjust water rates in accordance with the CIP needs.

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General Sewer Plan

AMMENDMENT NO 2

June 2008 Draft

Prepared By

BHC Consultants LLC720 Third AvenueSeattle, WA 98104

John C Wilson PEProject Manager

14681

EXPIRES

STATE OF WASHINGTON

R

E G I S T E R E D

PROFE SS I ONAL ENG INEER

C. LIW SON,JO

HN JR

.

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___________________________ _________________ 2008John C Wilson PE

City of SultanGENERAL SEWER PLAN

AMENDMENT NO 2June 2008 Draft

Purpose

The Growth Management Hearings Board identified a significant GMA compliance issue in that the City’s planning for capital facilities was not adequate to demonstrate that anticipated future growth could be accommodated. An update to the Comprehensive Plan has been prepared to correct this deficiency. Projections outlined in the 2004 Plan and EIS have been changed substantially, as have the capital cost estimates. Adoption of the updated Comprehensive Plan and Capital Facilities Plan in late 2008 will meet the mandates of the Hearings Board, and ensure that the impacts of growth as projected in 2004 will be properly mitigated by a well-planned infrastructure system.

This Amendment No 2 to the General Sewer Plan for the City documents how the sewer system will be upgraded to be consistent with the Comprehensive Plan.

Background

Figure S-1 shows the City sewer system as it existed in 2007.

Interceptor sewers are the principal pipes in the wastewater system. These pipes collect flow from the collector sewer mains. Sewer interceptors are summarized in Table 1.

Table 1Sewer Interceptor System

Location Size (in) Length (ft) Material Year Slope (ft/ft) Capacity (GPD)Main Street 18

158

7504300820

PVCPVCPVC

198919892001

0.00220.00220.0040

3,100,0002,800,000490,000

1st Street 12 2,450 PVC 2005 0.0022 1,050,0004th Street 10

813502950

VCconcrete

19691969

0.00220.0040

650,000490,000

8th Street 12 330 PVC 1987 0.0097 2,200,000SR 2 West 12 2450 concrete 1969 0.0022 1,050,000Sultan Basin 15

1212

110013503500

PVCPVCPVC

199919981999

0.00970.01100.0022

1,300,0002,400,0001,050,000

Wagley’s Creek 151615

2650400

3750

PVCDI

PVC

200120012001

0.00180.00300.0026

1,700,0002,500,0002,000,000

1

8 2200 PVC 2001 0.0039 480,000Total Footage 30,350

In addition to the Sewer Interceptor System shown in Table 1, the system has about 40,000 feet of collector sewers. Almost all collector sewers are 8-inch diameter pipe of varying age and material.

The existing sewer system has only one pump station, which is located in the Sultan River Park. Most of the existing service area drains through this pump station, which also acts as the influent pump station for the wastewater treatment facility. The pump station has two 1,500 gallons per minute (GPM) pumps with 35 horsepower motors, which is a capacity of about 2.16 million gallons per day (MGD) each. The maximum existing capacity with both pumps operating is about 3.2 MGD. Inverts for both the First Street and the Main Street interceptors are more than 20 feet below street grade as they approach the pump station.

The 10-inch force main extends about 450 feet from the pump station across the Sultan River on the State Department of Transportation bridge for US 2 into the wastewater treatment facility.

Goal and Policies

Maintain and enhance the development and operation of an effective, efficient wastewater treatment plant and collection system that will meet the needs of Sultan's present and future urban service area.

Policies:

1. Require all properties that develop or redevelop within the city limits to connect to the City’s sewer system.

2. Increase sewer treatment plant and collection line capacities to meet the needs of Sultan residents and land within the Urban Growth Area, as well as meet state and federal discharge standards. Service to properties in the UGA shall not occur until such properties are annexed into Sultan.

3. Increase capacity to reflect increased usage trends influenced by the City’s growth and economic development.

4. Maintain an updated comprehensive sewer system plan that is coordinated with the Land Use Element so that new development is located where sufficient sewer system capacity exists or can be efficiently and logically extended.

5. Ensure that existing deficiencies in the sewer system are upgraded.

6. Encourage all non-redeveloping properties that annex into the city to phase out their septic systems and connect to the City sewer system.

7. Provide sewer services for Sultan residents and parties who annex in exchange for service. Work with Snohomish County, Washington State Department of Ecology, and other public agencies to correct failed septic problems, provided solutions do not create urban

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developments that are not desired or controlled by Sultan. Phase service expansion to reflect growth management policies, particularly the realization of employment related developments that provide Sultan a sound fiscal base. The principal controller of urban development within the Sultan planning area is thereby the wastewater treatment capacity that is available to be allocated to undeveloped lands within corporate boundaries. Accordingly, septic tanks will not be used in development projects within the Sultan urban growth area.

8. Increase wastewater treatment plant and collection line capacity allocations to meet the needs of the Sultan future urban area. Increase capacity allocations to reflect increased usage trends caused by Sultan's continued urban intensification and economic development.

9. Increase and improve secondary treatment capacities and methods to meet state and federal discharge standards. Investigate, where appropriate, other alternative methods of treatment including tertiary systems.

10. Continue City ordinances regulating public use of the City sewer system and update as needed. These include specific prohibition of illicit connections to the sewer for storm drainage. Fats, oils, and grease will be managed through required grease traps for designated classes of connections to the sewer.

11. Consider additional incentives for water conservation, surcharge for service outside the city limits, new sources of employment, and other sewer programs with cost implications. The City currently has a rate structure defining the methodology for monthly service charge, capital facilities charges, service connection, and various other fees related to operation and maintenance of the sewer system. A rate differential exists between residential and non-residential customers, as well as for low-income and elderly.

Growth Management Boundary

The growth management boundary as shown in Figure S-1 has been revised to reflect the current assignment to the City of Sultan by Snohomish County. The current boundary reflects a modest change from the 2004 boundary.

Some changes have also been made to the land use planning for the City, though these did not result in significantly different development densities than were used in the previous sewer planning efforts.

Figure S-2 shows those parcels within the existing city limits that have been developed with on-site sewage systems; and how these parcels relate to existing sewer piping.

Design Standards

Standards for sewer system facilities are defined by WAC 173-240-050 and the ‘Criteria for Sewerage Works Design’ published by the Washington State Department of Ecology (DOE). Ecology also issues NPDES permits with requirements for wastewater effluent quality and monitoring to ensure compliance with receiving water standards. Planning, design,

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construction, operations, and maintenance for the City sewer system is conducted in accordance with these standards, plus the following:

The sewer system shall be designed to contain all sewage and the extraneous flow that enters during a 10-year, 24 hour storm event.

Sewer capacity will be calculated with the pipe flowing full at the design pipe slope under projected peak hour conditions. The minimum pipe slope shall be sufficient to maintain a velocity of 2 feet per second under flowing full conditions.

Pumping capacity is usually designed to accommodate the peak hour flow. However, the existing pump station is also the influent pump station for the wastewater treatment facility, and the interceptor piping enters the station more than 20 feet below street level. Flow attenuation into the treatment facilities is desirable to allow cost-effective sizing of the structures. Surcharging the interceptors into the pump station is an acceptable method to achieve flow equalization. This means that under storm conditions the Main Street pipes would be full and water levels in the manholes would rise several feet, though still be several feet below the street grade.

About 409 parcels within the existing city limits have been identified by City staff as having been developed with on-site sewage systems. All developed parcels outside the city limits and within the UGA use on-site sewage systems. According to the Growth Management Act, no new on-site septic sewage systems should be allowed in the UGA as new development is intended to be at urban densities which require sewers. In addition, RCW 70.118 requires counties including Snohomish County to develop and implement management plans for on-site sewage systems, including single family homes in communities like the City of Sultan. Sewer service will be available to all parcels within the UGA by 2025.

Parcels with existing development using on-site sewage systems where a sewer is available are not required to connect to the sewer unless the on-site system fails, or the existing structure is remodeled, the property is sold or changes ownership or the property owner wishes to connect. Determination of on-site sewage system failure is the responsibility of the Snohomish County Health Department.

Where a new sewer pipe is extended past a parcel with existing development using an on-site sewage system, the property owner will be required to pay for the benefit conferred by the sewer pipe but will not be required to actually connect and pay monthly service charges unless or until the on-site system fails, the property owner wishes to connect, or the property is sold or changes ownership, or the existing structure is remodeled under a City building permit.

Sewer extensions to some areas within the existing city limits, and other areas that are within the urban growth area, will require extremely deep sewer trenches to achieve gravity service. Local gravity sewer systems in such areas can be developed using local pump stations owned and operated by the City. Plans for such sewer systems shall be developed and approved by the City. All such facilities shall be designed and built in accordance with City standards.

Rain induced flow into the sewer system exceeds desirable rates. This problem is believed to be concentrated in the older parts of the sewer system. The City will continue to budget and implement regular rehabilitation programs to minimize the introduction of infiltration and rain

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induce flow into the sewer system by recognizing that such wastewater volumes take capacity in the pipe system and treatment facilities that would otherwise be available to sewer customers. Processing such extraneous flow also incurs additional costs to the system which must be included in the monthly service charges.

The City will continue to inspect and test new sewer installations to verify that construction materials and methods conform to modern standards. The resulting new sewer extensions are expected to exhibit a significantly lower influx of extraneous wastewater than the existing sewer system.

Population Projections

The Puget Sound Regional Council expects the Skykomish Valley area will eventually support 17,026 persons by the year 2010, 20,549 persons by the year 2020, and 23,977 persons by the year 2030. The projected Sultan population of 11,1192 in 2025 would represent about half of these residents.

By the year 2012, the County’s Buildable Lands Report (BLR) expects approximately 7,300 persons will reside in the UGA of which 90% will reside in city limits. The BLR further expects the current UGA will eventually support a population of 11,119 persons at build-out in 2025. It is assumed that the entire UGA will be incorporated into the City by that time. This is an official population estimate and is used by the City for its growth and capital facilities planning.

In 2006, there were approximately 1,010 jobs located in Sultan. Snohomish County’s Buildable Lands Report and the City’s Comprehensive Plan estimate an increase to 2,000 jobs in Sultan by 2025. These projections are summarized in Table 2.

Table 2Population and Development Projections

Parameter 2005 2006 2007 2010 2012 2014 2025City Population 4,225 4,440 4,530 5,874 6,382 7,386 11,11

9UGA Population 4,785 6,066 7,300 8,028 11,11

9City Housing Units 1,713 1,739 2,066 2,505 2,920 4,464Average Household Size 2.78 2.78 2.74 2.71 2.68 2.66 2.62Housing Vacancy Rate 5.00% 5.00% 5.00% 5.00% 5.00% 5.00% 5.00%Employment 1,010 2,000UGA Area in Acres 2,304 2,304

Buildable 954 954Unbuildable 1,350 1,350

Wastewater Flow Projections

2

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The existing wastewater parameters have been computed in gallons per day from the flow data recorded for 2006 as reported on the Daily Monitoring Report (DMR). These results are summarized in Table 3.

Table 3Existing Wastewater Flow Parameters

Flow Component

Quantity Units 2006 Average Day

Unit Flow

Average Day Max Month

Residents 3,440 67 230,000 67 230,000Employees 1,010 35 35,000 35 35,000Infiltration 312 ac 160 50,000 275 86,000Rain Dependent II

312 ac 50 16,000 770 240,000

Totals 331,000 591,000DMR recorded 331,000 591,000

Table 4 summarizes the projected population in future years to be served by sewers, the residential equivalent residential units (ERU), the commercial ERU, and wastewater flows based on data given in the 2006 Engineering Report. The plant capacity after Phase 1 improvements will correspond to the projected year 2017 numbers, while the plant capacity after Phase 2 improvements, to be on-line in 2017, will correspond to the projected year 2029 numbers.

Table 4Projected Population, ERU, and Wastewater Flows

Parameters 2010 2012 2017 2025 2029Population Served by Sewers 5,492 6,495 8,624 11,119 12,540Residential ERU 2,112 2,498 3,316 4,277 4,823Commercial ERU 91 112 164 238 275Wastewater Flows in MGD: Average dry weather 0.40 0.47 0.64 0.83 0.90 Maximum month 0.72 0.81 1.03 1.37 1.56 Peak hour 3.1 3.4 3.9 5.0 5.6

Projected Needs Through 2025

Figure S-3 shows the sewer extensions necessary to serve parcels throughout the UGA. Improvements to the sewer collection system fall into categories as described below: New Streets listed in the TIP will have a sewer main at least 8-inch diameter. Reconstructed Streets listed in the TIP will have a sewer main at least 8-inch in diameter,

unless an adequate sewer main is already in place. Sewer Main Extensions in streets within UGA but not on the TIP list will be at least 8-inches

in diameter.

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Replacement Pipes at least 8-inch diameter are needed in two locations where the existing sewer is under sized, obsolete material, or otherwise defective.

Table 5 summarizes the sewers to be installed concurrently with street improvements listed in the Transportation Improvement Program. Construction costs as shown for 2008 include only the sewer facilities, which include crushed backfill. Costs for street and surface improvements are in the TIP. Project costs add engineering design, permits, and construction oversight to the construction costs as will as property acquisition where appropriate.

Table 5Sewer Improvements Included with Transportation Improvements

TIP No Project Description Dept

h DiamFeet of

PipeConstructio

n CostProject

Cost

T-24New east/west collector (339th SE - Sultan Basin Rd) outside UGA

T-25 Foundry Road (Cascade View - railroad) served by existing sewer in Foundry Drive

T-26New east/west collector (339th SE - Sultan Basin Rd) 10 8 400 $48,000 $67,200

T-27 Extend E Main St to 149th St SE served by existing sewer in Main StreetT-28 Emergency access between BNSF and Skykomish R 15 8 1,250 $200,000 $280,000T-29 Extend Kessler Dr. (Bryant Rd. - 124th St) 10 8 2,900 $348,000 $487,200

T-31a New north-south arterial (US-2 - 124th St) 15 8 650 $104,000 $145,600T-31c 330 Ave SE just north of US-2 served by existing sewer in Sultan Basin RoadT-32a Extend Rice Rd /339th (132nd to UGA boundary) served from sewer in T-58T-32-b Extend Rice Rd /339th (beyond UGA - 124th) outside UGAT-33 New arterial (Old Owen Rd - Sportmans Park) 10 8 500 $60,000 $84,000T-35 Cascade View Dr (US-2 - 331st) served by existing sewer in Cascade View DriveT-36 138th St (Sultan Basin Rd - 339th Ave SE) 10 8 3,600 $432,000 $604,800T-38 1st St (High Ave to Trout Farm Rd) 15 8 2,200 $352,000 $492,800T-41 339th Ave (Sultan Startup Rd - 132nd St) 15 8 3,050 $488,000 $683,200T-42 Sultan Basin Rd (138th - 124th St) 15 8 900 $144,000 $201,600T-43 Walburn Road (11th St - Sultan Basin Rd) served by existing sewer in Sultan Basin RoadT-44 Extend Pine St (9th - Walburn) 10 8 1,600 $192,000 $268,800T-45 Alder St (4th - 8th St) served by existing sewer in Alder StreetT-47 Trout Farm Rd (307th - 125th) 10 8 4,900 $588,000 $823,200T-48 Gohr Road (1st St - 132nd SE) 15 8 1,950 $312,000 $436,800T-49 Gohr Road (132nd Ave - about 128th) 10 8 1,600 $192,000 $268,800T-51 3rd Street (Main - High) served by existing sewer in 3rd StreetT-57 132nd St. (Sultan Basin Rd - Trout Farm Rd) 10 8 2,150 $258,000 $361,200T-58 132nd St SE (Rice - Sultan Basin Rd) 15 8 3,450 $552,000 $772,800T-61 6th Street (Main - Birch) served by existing sewer in 6th Street

T-62124th Street (Sultan Basin Rd - water treatment plant) 10 8 2,600 $312,000 $436,800

T-65 124th Street (water treatment plant - Trout Farm Rd) 10 8 3,400 $408,000 $571,200 Subtotal 37,100 $4,990,000 $6,986,000

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Some new sewer main extensions are planned in streets within UGA, but the streets are not on included on the TIP list. These sewer improvements are summarized in Table 6.

Table 6New Sewer Extensions

New Project Description Depth Diameter Feet of Pipe

Construction Cost

Project Cost

1 eastern city limits into SR 2 10 8 800 $177,000 $248,0002 between 330th & 339th into SR 2 10 8 400 $89,000 $125,0003 into 9th (T-29) 10 8 300 $66,000 $92,0004 west of 339th into 132nd 10 8 900 $199,000 $279,0005 west of 339th into 132nd 10 8 40 $89,000 $125,0006 Skywall Drive 15 8 1,650 $457,000 $640,0007 Dyer Road into 10th 20 8 2,700 $860,000 $1,204,0008 north of SR 2 into Sultan Basin Rd 10 8 350 $78,000 $109,0009 into T-44 10 8 300 $66,000 $92,000

10 into T-44 10 8 400 $89,000 $125,00011 135th into Sultan Basin Rd 10 8 1,600 $355,000 $497,00012 Kessler Drive 10 8 650 $144,000 $202,00013 Love's Hill Drive 10 8 200 $44,000 $62,00014 into 124th 10 8 200 $44,000 $62,00015 into 124th 10 8 750 $166,000 $232,00016 Trout Farm Rd & 125th 20 8 5,000 $1,593,000 $2,230,00017 Trout Farm Rd & 125th 20 8 350 $111,000 $155,00018 Trout Farm Rd west of 307th 20 8 1,050 $334,000 $468,00019 307th into Trout Farm Rd 20 8 800 $255,000 $357,00020 307th into Trout Farm Rd 10 8 800 $177,000 $248,00021 134th into Trout Farm Rd 15 8 850 $235,000 $329,00022 311th into Gohr Rd 10 8 1,500 $332,000 $465,00023 Wysteria into Gohr Rd 10 8 950 $211,000 $295,00024 into 4th 10 8 450 $100,000 $140,00025 into High Avenue & 8th 10 8 100 $22,000 $31,00026 betweeen Birch & Cedar into 1st 10 8 200 $44,000 $62,00027 Fir Avenue 10 8 1,800 $399,000 $559,00028 betweeen Birch & Cedar into 1st 10 8 250 $55,000 $77,000

29from Birch into between Alder & Main 10 8 550 $122,000 $171,000

30 between 132nd & 138th into 339th 10 8 2,450 $543,000 $760,00031 N Park into Gohr 10 8 500 $111,000 $155,000 Subtotals 28,840 $7,567,000 $10,596,000

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Several of the new sewer extensions shown in Table 6 will require local pump stations if sewer trenches are not to exceed 20 feet in depth. These pump stations and the associated force mains are summarized in Table 7.

Table 7New Sewer Pump Stations and Force Mains

Station Project Description Parameters Construction Cost

Project Cost

A

Dyer Road 100 GPM 10 hp $225,000$434,000Force Main 4-inch 750 feet $85,000

B Skywall Drive 100 GPM 10 hp $225,000$553,000Force Main 4-inch 1,600 feet $170,000

CTrout Farm & 125th

Street 100 GPM 10 hp $225,000$371,000Force main 4-inch 400 feet $40,000

D Trout Farm & 303rd Drive 100 GPM 10 hp $225,000$427,000Force Main 4-inch 800 feet $80,000

E 124th Street 100 GPM 10 hp $225,000$343,000Force Main 4-inch 200 feet $20,000

Totals 3,750 feet $1,520,000$2,128,000

Replacement Pipes are needed in two locations where the existing sewer is under sized, obsolete material, or otherwise defective as summarized in Table 8.

Table 8Sewer Main Replacements

Project Project Description Dept

h Diameter Feet of Pipe

Construction Cost

Project Cost

3

2 Force Main under Sultan River ---- 12 600 300,000 500,000 Subtotal 3,350 $1,024,000 $1,514,000

In addition to the sewer mains improvements listed in Tables 5, 6, 7, and 8; several other capital projects are included in the Needs Assessment to accommodate growth as projected through 2025. These projects are listed below:

General Sewer Plan Update 2014 General Sewer Plan Update 2024

3 Project completed in 2005.

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Ongoing infiltration/inflow rehabilitation Short-Term Improvements to Wastewater Treatment Facilities by 2009 Upgrade of Wastewater Treatment Facilities with Membrane Bioreactor by 2017

General Sewer Plans are not required to be updated every six years as is the case for Water System Plans. However, capital facilities planning require periodic updating of the six-year Capital Improvement Program, which is best accomplished through periodic updates to the General Sewer Plan.

Table 9 summarizes the sewer facilities needed by 2025 and estimated costs.

Table 9Needed Sewer Facilities by 2025

Improvement Category Quantity Construction Cost Project CostProjects in Progress (2007) --- ---- $ 1,137,000TIP Sewer Improvements 37,100 feet $ 4,990,000 $ 6,986,000New Sewer Extensions 28,840 feet $ 7,567,000 $ 10,596,000Pump Stations & Force Mains 5 pump stations $ 1,520,000 $ 2,128,000Replacement Sewers 3,350 feet $ 1,024,000 $ 1,514,000General Sewer Plan – 2014 ---- ---- $ 100,000General Sewer Plan – 2024 ---- ---- $ 100,000Ongoing I/I Rehabilitation Typically $100,000/yr $ 1,700,000 $ 2,380,000WWTP – Short Term --- $ 350,000 $ 400,000WWTP – MBR --- $ 17,000,000 $ 21,700,000

Total $ 34,151,000 $ 47,041,000

Costs shown are estimated in 2008 dollars. These costs will need to be escalated in some manner to reflect the costs appropriate to the dates when the projects will actually be implemented.

Six-Year Capital Improvement Program

In addition to the Project in Progress during 2007, the projects required during the initial six years of 2009 through 2014 are summarized in Table 10 as the capital Improvement Program (CIP).

Table 10Six-Year Capital Improvement ProgramEstimated Project Costs in $ Thousands

Project 2009 2010 2011 2012 2013 2014 TotalShort-term WWTP 400 400Alder Street 54 400 454132nd Street 20 53 700 773

1

Rice Road 20 63 600 683WWTP - MBR 2,000 15,15

017,15

0Totals 400 54 440 116 3,300 15,15

019,46

0

Figure S-4 locates the projects included in the Six-Year CIP.

Financial projections indicate that the existing City sewer rate structure will be adequate to generate most of the revenue needed to implement the six-year CIP, assuming that the projected growth actually occurs. Table 11 summarizes these financial assumptions.

Table 11Six Year Sewer Capital Improvement Revenue

Estimated Revenue on $ Thousands

Projects GFC Grant Debt Contributions

Totals

Short-term WWTP 400 400Alder Street 454 454132nd Street 773 773Rice Road 683 683WWTP - MBR 6,300 5,000 5,850 17,150

Totals 6,754 5,000 6,250 1,456 19,460

It is possible that growth will not occur as projected, of course. In that case the sewer improvements will not be needed and the projects may be delayed until the need does exist and funding becomes available.

Existing Sewer Rates

A progressive water rate structure has been used by the City for years. Table 12 summarizes an excerpt from the current sewer rates with 600 cubic feet (CF) included in the commercial base rate.

Table 12Current Monthly Sewer Rates

Customer Class 2007 Rate 2008 Rate 2009 RateSingle Family Residence $56.70 $61.74 $64.83Low-income Senior $30.25 $30.87 $32.41Multi-family Unit $56.70 $61.74 $64.83Mobile Home $56.70 $61.74 $64.83Commercial – Base Rates

¾-inch meter $56.70 $61.75 $64.83

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1-inch meter $79.38 $86.44 $90.761-1/2-inch meter $102.06 $111.13 $116.69

Volume Rate / 100 CF $4.04 $4.40 $4.61

Additional sewer rates exist for larger water meter sizes.

The sewer capital facilities charge was $10,518 per ERU as of September 2007; and became $11,282 per ERU in January 2008.

Financial Implications

The total estimated project cost for providing sewer service to all parcels with the GMA to be consistent with the Comprehensive Plan is about $45.4 million in 2007 dollars. Several strategic considerations are relevant to the financial implications in funding these improvements as outlined below:

About $23.3 million in sewer collection facilities are identified as needed by 2025 to accommodate the projected growth within the GMA

An additional $22.1 million is identified as needed to expand sewer treatment plant capacity by 2025

Existing utility rates, periodically adjusted for inflation, could generate an additional $4.2 million during this planning period

About $32.8 million could be available from the system development charges as proposed in the recent rate study if the recommendations of that study are implemented after 2013 and the projected growth actually occurs

Basic Needs for the sewer utility have been defined as the improvements necessary to maintain the established level of service for existing sewer customers plus to extend sewer service to all developed parcels now using on-site septic sewage systems within the existing city limits as summarized below:

Approximately $6.9 million of basic needs are identified for the collection system to adequately continue serving existing customers

About $10.6 million would provide service to developed parcels currently using on-site sewage systems, which would financially benefit such properties

The City financing plan includes $4 million in City participation for sewer main extensions to encourage property owners to connect to the sewer system

Code revisions are being proposed to clarify when and how property owners will be expected to pay fair-share costs for extension of the planned sewer and water systems.

Additional improvements defined as ‘Necessary for Development’ throughout the remaining area within the existing city limits plus the UGA are summarized below:

Estimated costs for the treatment system needed to support the planned growth are about $22.1 million

An additional $10.0 million will be needed to extend sewers to the undeveloped parcels within the UGA

The City financing plan for these improvements can be summarized as follows:

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About $32.8 million could become available from the system development charges (GFC) as proposed in the recent rate study, if the recommendations of that study are continued after 2013 development occurs as projected

The City will continue to seek $5 million in state financial assistance for an expansion to its sewerage treatment plant; and if are awarded, the amount of revenue needed by the city’s system development charge (GFC) may be reduced or used for other system needs

Approximately $5.4 million is expected from developer financing as part of various street improvement projects

About $8.1 million may be contributed by property owners and developers towards sewer extensions to undeveloped areas within the GMA

The recommendations of the last rate study recommended setting the General Facility Charge (GFC) at $20,086 per ERU. This amount should be reevaluated to ensure it is appropriate to long term needs of the sewer utility and particularly for financing the wastewater treatment plant improvements.

Table 13 summarizes the above described financial strategy for the sewer utility.

Table 13Sewer System Funding StrategyFinances Shown in $ thousands

Project Classes GFC Grants

Rates Property Owners Total

Basic Needs I/I Rehab & Planning 2,380 200 2,580 Projects in Progress 454 683 1,137 Extension to Non-served 4,000 6,596 10,59

6 Replace Existing Facilities 1,514 1,514 Treatment Facilities Ph 1 400 400

Subtotals 8,348 --- 600 7,279 16,227

Necessary for Development Treatment Facilities Ph 2 16,70

05,000 21,70

0 Sewer Extensions 2,908 6,206 9,114

Subtotals 19,608

5,000 --- 6,206 30,814

Totals 27,956

5,000 600 13,485 47,041

Table 12 indicates that if the planned grant for the wastewater treatment plant improvements is actually received, not all of the revenue that may be generated by the GFC rate recommended by the recent rate study may be needed. However, that possibility is totally dependent on the expected developments actually occurring and on the projected schedule. Until those

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projections are validated by events, it is prudent for the City to maintain the rates in accordance with the rate study recommendations.

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SULTAN CITY COUNCIL

AGENDA ITEM COVER SHEET

ITEM NO: Public Hearing 1 – Amending SMC 21.04

DATE: July 10, 2008

SUBJECT: Hold a public hearing to consider a proposed amendment to the Sultan Municipal Code 21.04.03 to remove the $850 filing fee for the Conditional Use Permit and change the hearing body for a Conditional Use Permit.

CONTACT PERSON: Robert Martin, Community Development Director

ISSUE:

The issue before the City Council is to hold a public hearing to:

1. Amend the Sultan Municipal Code 21.04.030 by removing the $850.00 required filing fee for Conditional Use Permits and adding language to require the fee based on the adopted fee schedule.

2. Update the Sultan Municipal Code, consistent with SMC 2.26 and 16.120, giving authority to the Hearing Examiner to review Conditional Use Permits instead of the Planning Commission.


Hold a public hearing to take public comment on the Planning Board’s recommendation to amend Sultan Municipal Code 21.04 (Attachment A) to:

1. Remove the $850.00 fee set in the code and provide for the fee to be set by resolution through the annual fee schedule adopted by the City Council.

2. Change references in SMC 21.04 from “Planning Commission” to “Hearing Examiner” to be consistent with SMC 2.26 and SMC 16.120.

BACKGROUND:

For comprehensive plan and development regulation amendments, the statutes (RCW 35A.63.073 and 35A.63.070) require at least one public hearing. Notice is to be given as provided by ordinance and published at least ten days prior to the hearing. If continued hearings are held, no additional notices need be published.

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The Planning Board discussed this issue briefly at its February 19, 2008 meeting. On April 1, 2008 the Planning Board set the public hearing for April 15, 2008. City staff missed the 10-day notice period for the April 15, 2008 meeting. The notice was sent out on April 22, 2008 and published in the Everett Herald on April 25, 2008 to hold a public hearing on May 6, 2008.

The Washington State Department of Community Trade and Economic Development (CTED) has reviewed this proposed amendment .

The Planning Board held a public hearing on May 6, 2008. There was no public comment, and the Board voted unanimously to recommend the proposed amendment to the City Council.

SUMMARY:

The City is looking to amend a filing fee for a conditional use permit as set forth in Chapter 21.040.030.

The filing fee was set ten years ago with the adopting ordinance (690-98) and does not cover the costs incurred by the City for staff time to process the permit application. City staff recommend deleting the reference to the filing fee in SMC 21.04 and instead set the filing fee by resolution through the annual fee schedule adopted by the City Council.

In addition, Chapter 21.04 makes references to the planning commission reviewing applications for conditional use permits. This task is now assigned to the hearing examiner as outlined in SMC 2.26 and SMC 16.120. This is a housekeeping item to provide for a consistent code.

DISCUSSION:

The $850.00 filing fee has not been significantly adjusted in 10 years. The inflation rate from December 1997 to December 2007 is 30.21%.4 Adjusted for inflation, the fee would be $1,106.78

The City's previous policy in constructing a fee schedule for development applications is to, in general, try to recover 100% of direct costs of processing development applications.

The staff work that is accounted for in structuring the fee schedule includes the work of all City departments involved in review of development applications, from the time an application is originally submitted through the time the improvement is constructed and a Certificate of Occupancy is issued.

Moving the filing fee to the annual fee resolution will allow the fee to be adjusted as necessary to ensure the City is recovering costs consistent with Council policy. 4http://inflationdata.com/Inflation/Inflation_Calculators/Inflation_Rate_Calculator

http://inflationdata.com/Inflation/Inflation_Calculators/Inflation_Rate_Calculator

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FISCAL IMPACT:

The fiscal impact is to ensure the cost of providing service to the applicant meets the City's policy goal recovering 100% of direct costs of processing development applications.

For comparison, the table below shows the fees charged by area cities for a conditional use permit. The Association of Washington Cities conducts a fee survey every other year. AWC conducted the last fee survey in 2006.

CityConditional Use Permit2006 AWC Fee Survey

Carnation $1000Darrington $850

Gold Bar $225

Kirkland $8,160 + $300 (unit)

Marysville$1,000 + $1,500 (if public hearing

required)

Mill Creek $1,500

Monroe $1,000

Sultan (current) $850

Sultan (proposed) $500 + direct expense

RECOMMENDATION:

Hold a public hearing to:


2. Update the Sultan Municipal Code, consistent with SMC 2.26 and 16.120, to give authority to the Hearing Examiner to review Conditional Use Permits instead of the Planning Commission.

ATTACHMENTSA -- Approved Planning Board Minutes of May 6, 2008 (Pertinent Part)B -- Proposed Amendments to SMC 21.04 as Ordinance No. 938-08

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ATTACHMENT BORDINANCE 983-08

AN ORDINANCE OF THE CITY OF SULTAN, WASHINGTON AMENDING SULTAN MUNICIPAL CODE SECTION 21.04 PERTAINING TO FEES AND

ADMINISTRATION OF CONDITIONAL USE APPLICATIONS.

WHEREAS, it is the intent of the City to publish its fees in a Fee Schedule, and remove various fees from the Municipal Code; and

WHEREAS, Sultan Municipal Code Section 21.04.030 contains a codified provision for a filing fee of $850.00 for a conditional use application; and

WHEREAS, authorization for the City of Sultan Planning Commission has been repealed and authorities for conduct of quasi-judicial hearings has been vested in a Hearing Examiner; and

WHEREAS, Sultan Municipal Code Section 21.04 contains a codified provision stating that the Planning Commission will review and make recommendations to the City Council regarding conditional use applications;

WHEREAS, the City of Sultan Planning Board held a public hearing on this amendment proposal at its regular meeting of May 6, 2008;

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SULTAN , WASHINGTON DO ORDAIN AS FOLLOWS:

Section 1. The City of Sultan hereby amends Sultan Municipal Code Section 21.04 to: remove the fee reference from the code; delete references to the planning commission and; vest with the hearing examiner all responsibilities previously vested in the planning commission.

Section 2. Sultan Municipal Code is amended as follows:

Chapter 21.04CONDITIONAL USE PERMITS

Sections:21.04.010 Purpose.21.04.020 Uses requiring a conditional use permit.21.04.030 Application – Requirements and fees.21.04.050 Criteria.21.04.052 Additional criteria for single-family detached dwelling

(clustered).21.04.054 Additional criteria for duplexes or two-family dwellings.

http://search.mrsc.org/nxt/gateway.dll/sltnmc/#21.04.054






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21.04.060 Expiration and renewal.21.04.070 Revocation of permit.21.04.080 Performance bond and other security.21.04.090 Resubmittal of application.21.04.010 Purpose.

It is the purpose of this chapter to establish review and permit approval procedures for unusual or unique types of land uses, which, due to their nature, require special consideration of their impact on the neighborhood, and land uses in the vicinity. The uses in this chapter may be located in any district by special permission of the planning commission hearing examiner under such conditions as the commission may recommend and the city council shall approve. (Ord. 690-98)21.04.020 Uses requiring a conditional use permit.

The following are the uses which require a conditional use permit:A. The conditional uses listed in the specified use districts require a

conditional use permit in order to locate and operate in an appropriate zone district within the city.

B. Existing nonconforming uses which wish to expand. (Ord. 690-98)21.04.030 Application – Requirements and fees.

Application for conditional use permits shall be filed with the planning department on forms prescribed by that office. A filing fee, set by resolution through the annual fee schedule adopted by the City Council,of $850.00 shall accompany all applications. The planning commission hearing examiner will review applications for conditional use permits and the recommendations will be passed to the city council for final action. The planning commission hearing examiner may recommend to the city council denial, approval, or approval with conditions. Conditional use applicants must adhere to all applicable public notification requirements. Denial of conditional use permit applications is not appealable. All conditional use permits are subject to design review procedures. (Ord. 690-98)

21.04.050 Criteria.The following criteria shall apply in granting a conditional use permit:A. The proposed conditional use will not be materially detrimental to the

public welfare or injurious to the property or improvements in the vicinity of the proposed conditional use or in the district in which the subject property is situated;





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B. The proposed conditional use shall meet or exceed the performance standards that are required in the district it will occupy;

C. The proposed conditional use shall be compatible generally with the surrounding land uses in terms of traffic and pedestrian circulation, building and site design as approved by the design review committee;

D. The proposed conditional use shall be consistent with the goals and policies of the comprehensive land use policy plan;

E. All measures have been taken to minimize the possible adverse impacts, which the proposed use may have on the area in which it is located. (Ord. 690-98)21.04.052 Additional criteria for single-family detached dwelling (clustered).

The following additional criteria apply to allow single-family detached dwelling(s) (clustered):

A. The density on the property may not be greater than but should match the density for single-family detached dwellings;

B. Where urban density goals are to be achieved, but critical areas can be adequately protected, dimensional requirements for lot size, lot width, front and rear yard setbacks may be decreased by no more than 20 percent;

C. As a result of the design of the subdivision, a minimum of 20 percent of the net land area of continuous, publicly accessible open space such as stream or wetland and associated buffers, a ravine, bluff or other unique topographic feature, or conservation area is preserved;

D. As a result of the dwellings and any subdivision, the availability of housing to all economic segments of the population is increased, and housing density variety is preserved throughout the community. (Ord. 780-02 § 16)21.04.054 Additional criteria for duplexes or two-family dwellings.

The following additional criteria apply to allow duplexes or two-family dwellings:

A. Only one other duplex or multifamily use may exist within 300 feet of the proposed use and there must be at least a 100-foot separation (building to building) between the uses.

B. The proposed dwelling has been designed to be harmonious with the neighborhood and is constructed to provide the appearance of a single-family unit by, for example, altering the location of the front doors and windows; garages and access to garages; parking; landscaping and fencing; utilities and mailbox locations; building heights consistent with surrounding properties; exterior colors and materials; and differing setbacks, all of which are confirmed by a site plan. (Ord. 780-02 § 17)21.04.060 Expiration and renewal.

A conditional use permit shall automatically expire one year after a notice of decision approving the permit is issued unless a building permit

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conforming to plans for which the CUP was granted is obtained within that period of time. A conditional use permit shall automatically expire unless substantial construction of the proposed development is completed within two years from the date a notice of decision approving the permit is issued. The planning commission hearing examiner or city council, on appeal, may authorize longer periods for a conditional use permit if appropriate for the project. The planning commission hearing examiner or city council, on appeal, may grant a single renewal of the conditional use permit if the party seeking the renewal can demonstrate extraordinary circumstances or conditions not known or foreseeable at the time the original application for a conditional use permit was granted, which would not warrant such a renewal. No public hearing is required for a renewal of a conditional use permit. (Ord. 690-98)21.04.070 Revocation of permit.

A. The planning commission hearing examiner may revoke or modify a conditional use permit. Such revocation or modification shall be made on any one or more of the following grounds:

1. That the approval was obtained by deception, fraud, or other intentional and misleading representations;

2. That the use for which such approval was granted has been abandoned;

3. That the use for which such approval was granted has at any time ceased for a period of one year or more;

4. That the permit granted is being exercised contrary to be the terms or conditions of such approval or in violation of any statute, resolution, code, law or regulation; or

5. That the use for which the approval was granted was so exercised as to be detrimental to the public health or safety.

B. Any aggrieved party may petition the planning commission hearing examiner in writing to initiate revocation or modification proceedings.

C. Before a conditional use permit may be revoked or modified, a public hearing shall be held. Procedures concerning notice, reporting and appeals shall be the same as required by this chapter for the initial consideration of a conditional use permit application. (Ord. 690-98)

21.04.080 Performance bond and other security.A performance bond or other adequate and appropriate security may be

required for any elements of the proposed project which the planning commission hearing

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examiner or city council, on appeal, determines are crucial to the protection of the public welfare. Such bond shall be in an amount equal to 125 percent of the cost of the installation or construction of the applicable improvements. (Ord. 690-98)21.04.090 Resubmittal of application.

An application for a conditional use permit, which has been denied, may not be resubmitted within six months from the date of planning commission hearing examiner or council disapproval, whichever is later. (Ord. 690-98).

PASSED by the City Council and APPROVED by the Mayor the __th day of ___________, 20__.

CITY OF SULTAN

By______________________________Carolyn Eslick, Mayor

Attest:

By_______________________________Laura Koenig, City Clerk

Approved as to form:

By_______________________________Kathy Hardy, City Attorney

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City of Sultan

MemoTo: Mayor, Council and Staff

From: Laura Koenig, Clerk/Deputy Finance Director

Date: May 6, 2023

Re: Budget Report

ATTACHED IS THE PRELIMINARY BUDGET REPORT FOR THE END OF JUNE. THE GOOD NEWS IS THE GENERAL FUND HAS A POSITIVE BALANCE OF $208,553. THE STREET FUND IS STILL STRUGGLING AND ADJUSTMENT WILL BE NEEDED IN THE SEWER DEBT SERVICE FUND. REIMBURSMENTS ARE PENDING FOR SEWER IMPROVEMENT FUND.THANKS TO EVERYONE FOR ALL THE WORK TO CONTROL EXPENDITURES.

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PUBLIC WORKS REPORT

July 10, 2007

GARBAGE:For the first half of 2008 Public Works Garbage Crew has picked up and dumped 155.94 tons

compared to first 6 months of 2007 of 146.82 tons. (Attachment A)

WATERSHED:In May 2008, volunteers reported when the spar trees were cut and peeled there was evidence of

insect infestation. June 19, 2008 the City foresters visited the Watershed property located in Section 16, Township 28 North, Range 8 East. They located both stumps of the trees that were cut for the logging show. Since the bark was peeled on site, we were able to inspect the stripped bark and found that both trees had evidence of bark beetle infestation while they were standing live. Forester inspected the adjacent live trees in booth sites for any signs of insect attack. None was found at this time. It may be the start of a beetle infestation, of what size, it is too early to tell, since the months of May and June are generally the beginning of the life cycle of the bark beetle. Attached is the full report. (Attachment B)

WOOD DEBRIS COLLECTION SITE:As of July 1, 2008 1,079 customers have utilized the Sultan wood debris collection site. There is consistently an average of 37 households per weekend using the site. Attachment C of this report has the percentage breakdowns for users of the site. Snohomish County is requesting a new annual lease that did not break down by months. Since the lease needs to be approved by both Sultan City Council and Snohomish County the County property manager would like to start to begin the process early.

In attachment C is charts showing usage of the wood debris collection site.

VOLUNTEERS:Thank you volunteers for painting crosswalks on Main Street intersections and planting the

flowerpots and islands around City Hall.

TENTATIVE SCHEDULE:For Public Works Issues

August 7 Sub-Committee to discuss the Wastewater Treatment Plant financing, and biosolids handling.

Respectfully SubmittedConnie DunnPublic Works Director

It is not what you gather, but what you scatter that tells what kind of life you have lived!

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SULTAN CITY COUNCILAGENDA ITEM COVER SHEET

ITEM NO: Consent C 1

DATE: July 10, 2008

SUBJECT: Council Minutes

CONTACT PERSON: Laura Koenig, Clerk/Deputy Finance Director

SUMMARY:Attached are the minutes of the June 26, 2008 Council meeting minutes as on file in the office of the City Clerk.

RECOMMENDED ACTION: Approve as submitted

MOTION:Move to accept the consent agenda as presented.

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CITY OF SULTAN COUNCIL MEETING – June 26, 2008

The regular meeting of the Sultan City Council was called to order in the Sultan Community Center by Mayor Eslick. Councilmembers present: Champeaux, Wiediger, Slawson, Flower, Davenport-Smith, Blair and Doornek.

CHANGES/ADDITIONS TO THE AGENDA:Consent: Move vehicle purchase to discussion

PRESENTATIONS: John Craig, FEMA representative presented a plaque to the City for it success in the Community Rating Service program. The City is now a Class 7 City which provides a 15% discount on flood insurance to residents and businesses in the community. The program has been very successful with flood hazard reserves, informational flyers and a master plan for stormwater management. There has been a $30,000 savings in insurance premiums to the community.

Jackie Personeus: Introduced Kaitlin Keenan as the winner of the name the Skateboard Park contest and presented her with a certificate and prize. Kaitlin Keenan read her essay for the Council

COMMENTS FROM THE PUBLICBen Tolson: In regards to the Civil Service status for the Chief, he wanted to go on record that this issue was brought up two years ago by Chief Walser to benefit the City and move forward to be consistent with other Cities and this issue is not a result of recent events. Advised the Council that the parcel off of First Street was proposed for a long range park and although the City is having funding problems now they should consider it in the future.

Jerry Gibson: Amendments to the Comprehensive Plan: A petition was submitted 2 ½ years ago requesting three different areas be amended: 1) Remove the sewer lines along Skywall/Dyer road. The residents don’t want or need them. The city says they must plan for future but they can’t find where CTED requires it. It is only in the Fallgatter appeal where the GMA board says the city should plan. Requested the line be removed from the plan. 2) Placing the Pump station on the plan at 10th and Dyer. It is not fair or proper to put a big ugly thing in their neighborhood. They can’t get any information on where it will be or what it will look like. 3) The connection road between Dyer and Skywall needs to be removed. The current plan shows it on the grid system in the City and they want it removed from this plan. It can be added as an emergency plan element but not in the transportation plan. The most common emergency is a flood and the road connection will not help people in Skywall area as they must use a boat to get out. The Dyer Road floods at Wagley creek and most people can’t get out. The City has slated 2.3 million dollars for a road and they should spend the money elsewhere or on a culvert to fix the road where it floods. They are trusting the City to see things their way.

Kathy McManey: Is against the extension of the road between Dyer and Skywall as it will create a safety hazard. The pump station should be located where construction is.

Jeffrey Beeler: In regards to the police motorcycle lease, the cost is low and the benefit is high with the high gas prices. The motorcycle can also patrol at intersection and stop those who run the stop signs. The City should look at the County contract as the interim Chief is doing a great

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job. Would still like reflectors on the Sultan Basin Road so people can see the center line at night.

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Robert Keck: Is disappointed with the Council as they were provided written notice that the Dyer/Skywall connector would be taken off the plan and now it is back on it again. The Citizens don’t want it and that makes it difficult to trust the local government when things change.

Lisa Knight: Crime is reduced when a road is blocked and she is concerned about activity in the neighborhood and opening the road will make matters worse. We don’t need to add to the police problems.

Doug Oban: Asked if the petition that was signed is on the record?

Patsy Wetherald: Does not want a pump station next to them. The Council should consider the input the citizens have made over the years but it appears they are back to square one. The residents were told the changes to the plan would not happen and now they have been included.

COUNCILMEMBERS COMMENTS:Councilmembers Doornek, Blair, Flower and Davenport-Smith thanked the citizens for their comments.Wiediger: Noted there was a train derailment in the Dyer/Skywall area that closed the road for several days. The City is not trying to put a Highway 2 there; it is only an emergency exit.Champeaux: The process has been held up by the Fallgatter appeals and he does not remember saying the road was not going to happen. The road connection has now been changed to an emergency access.

Executive Session: On a motion by Councilmember Champeaux, seconded by Councilmember Blair, the Council adjourned to executive session for fifteen minutes to discuss potential litigation. All ayes.

CONSENT AGENDA: The following items are incorporated into the consent and approved by a single motion of the Council. On a motion by Councilmember Champeaux, seconded by Councilmember Slawson, the consent agenda was approved as amended. Champeaux – aye; Wiediger – aye; Slawson – aye; Davenport-Smith - aye; Flower – aye; Blair – aye; Doornek - aye.

1) Minutes of the June 12, 2008 regular Council Meeting as on file in the Office of the City Clerk.

2) Minutes of the June 12, 2008 Public Hearing on the Stormwater Utility as on file in the Office of the City Clerk.

3) Approval of vouchers in the amount of $526,432.60 and payroll through June 13, 2008 in amount of $69,437.28 to be drawn and paid on the proper accounts.

4) Council sub committee report and recommendations for relief from excess utility charges.

5) Public Hearing on amendments to the 2008 Budget was set for July 24, 2008.6) The Mayor was authorized to sign Resolution 08-21 to co-sponsor with the Volunteers of

America a fund raising dance for the Skateboard Park.7) Final approval and acceptance of the sewer line repair project at the Sultan Post Office

completed by Cameron’s Construction LLC in the amount of $12,607.708) Set a Closed Record Hearing on the Anderson Farm Plat for July 24, 2008.9) Approve a twelve (12) month extension of the Preliminary approval of Vodnick Lane

Planned Unit Development as provided by SMC 16.10.150(B).

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10) Confirm the re-appointment of Scott Zaffram to the Planning Board. 11) Cancel the public hearing on the George Latecomer Agreement.12) Authorize the Mayor to sign a contract amendment with Perteet for the Surface Water

Improvement Plan in the amount of $33,100.

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ACTION ITEMS : Comprehensive Plan and Supplemental EIS: Reid Shockey presented an overview of the revised 2004 Comprehensive Plan. The issue before the City Council is approval to release the Draft 2008 Revision of the 2004 Comprehensive Plan (Plan) and Supplemental Environmental Impact Statement (SEIS) for a 60-day public comment period. Approval will also authorize the City to transmit the Draft to the Washington Department of Community, Trade and Economic Development (CTED) for its review as mandated by the Growth Management Act (GMA).The Draft is a revision of the 2004 Plan and EIS to address an Order from the Central Puget Sound Growth Management Hearings Board. Revisions are focused on portions of the Plan needing correction. It is not an update of the 2004 Plan. Elements of the 2004 Plan which were not challenged or ordered to be revised remain as adopted.The 2008 document is an "integrated SEPA/GMA" comprehensive plan. It combines the features of both the GMA-based comprehensive plan (RCW 36.70A) and the required elements of SEPA review (RCW 43.21C). This was the format used for the adoption of the 2004 Plan update. The plan addresses the concerns of the Growth Management Board and has been reformatted for enhanced readability. The goals and polices have been moved to the related sections. The police level of service has been removed and a recommendation to increase the impact fees has been included. Dyer/Skywall Drive Road issue: The proposal was docketed last year as part of the annual process. The Planning Board held a public hearing on the matter and made a recommendation to the Council to delete the proposed roadway connection, maintain the proposed sewer line extension and maintain the proposed pump station. Staff is looking for direction from the councilDiscussion was held regarding the emergency access and the need for an emergency preparedness plan for the City. The removal of the police level of service will not have an impact on the response time or the number of employees. The Police Department needs to be run on the budget available not by level of service requirements.On a motion by Councilmember Flower, seconded by Councilmember Slawson, staff was directed to follow the Planning Board recommendation on the Dyer/Skywall issues. All ayes. On a motion by Councilmember Flower, seconded by Councilmember Slawson, staff was directed to release the revised 2004 Comprehensive Plan for the 60 day comment period under RCW 36.70A.106(1). All ayes.

Motorcycle Lease Renewal: The vehicle lease for the Sultan Police Departments 2007 Harley Davidson Motorcycle expired May 3, 2008. The Motorcycle has been a valuable tool in providing traffic enforcement throughout the City of Sultan. Staff has found the motorcycle useful during traffic enforcement details and special events such as Shindig due to its ability to access confined areas and its traffic mobility. On a motion by Councilmember Slawson, seconded by Councilmember Wiediger, interim Police Chief Rick Hawkins was authorized to renew the motorcycle lease with Skagit Harley Davidson for the 2007 Harley Davidson for an amount not to exceed $2,000.00. All ayes.

Skateboard Park Bid Rejection: The City received three bids for the Skateboard Park, one exceeded the budget amount and the other two were non-responsive. Staff recommends the Council reject all the bids. On a motion by Councilmember Blair, seconded by Councilmember Doornek, the bids for the Skateboard Park were rejected. All ayes.

Personnel Ordinances: The Staff requested the ordinances be tabled to address the concerns of the Civil Service Commission. On a motion by Councilmember Flower, seconded by Councilmember Slawson, the matter was tabled. All ayes.

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DISCUSSION ITEMS:Public Works Department Reorganization: City Staff has been exploring succession and replacement planning for employees who have resigned or will be retiring from employment with the City. Staff met on June 11, 2008 with the Council Sub Committee to discuss reorganization of the Public Works Department. The Sub committee is recommending a Public Works Director with a Professional Engineering Degree, hiring an Engineer Tech to manage capital projects. This would place engineering into the Public Works Department. Move the existing Public Works Director to the Field Superintendent position with the primary job description of managing Wastewater, Water, Storm, Streets, Parks, Garbage and Cemetery. This position would be considered middle management and would be used for training of existing staff to replace or succeed retiring employees.Discussion was held regarding the need to plan for the future and take advantage of the skills and knowledge of existing employees. Staff was directed to bring back a proposed budget for the reorganization.

Vehicle Purchase: Staff requested authorization for the Public Works Department to purchase two trucks. The 1989 pickups have exceeded their useful life and one is not useable. The budget includes $55,000 for vehicle purchases.Brief discussion was held regarding the cost and the use of state bid, used vehicles and the surplus of the old vehicles.Councilmember Slawson moved to move the item back to an action item; seconded by Councilmember Flower. All ayes.On a motion by Councilmember Blair, seconded by Councilmember Flower, the staff was authorized to purchase two vehicles in an amount not to exceed the budgeted amount. All ayes. Councilmember Blair moved to authorize staff to surplus the two 1989 vehicles after the new ones are purchased; seconded by Councilmember Flower. All ayes.

PUBLIC COMMENTSSteve Harris: The City should consider payment plan for the traffic mitigation fees. The City should take donations for the Skateboard Park during the Shindig.

Keith Arndt: Congratulated the Council for getting the comprehensive plan moving forward. There was a lot of work done by the consultants, staff, Council and Planning Board.

COUNCIL COMMENTSSlawson: A weight has been lifted and they need to thank the staff for their work on the comprehensive plan. Thanked the City for sending him to the AWC conference. He learns a lot at the conferences and he encouraged the other Councilmembers to attend in the future.Wiediger: Recommended that staff compare the amount they can get for surplus of the vehicles and the amount for scrap metal prices.Davenport –Smith: It is a good idea to accept donations for the Skateboard Park. It is great to be done with the comprehensive plan. Suggested staff review the City of Olympia plan for employee retainage.Blair: The City will be co-sponsoring a dance to raise funds for the skateboard park on Saturday. The City has had complaints in the past regarding fund raisers because the park is not complete yet.Doornek: Everyone needs a pat on the back for the work done on the comprehensive plan.Mayor Eslick: Thanked everyone who worked on the comprehensive plan. There will be a 10 year anniversary celebration for the Mariner’s Field on June 28, 2008.

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Executive Session: On a motion by Councilmember Flower, seconded by Councilmember Wiediger, the Council adjourned to executive session for thirty minutes to discuss potential litigation and property acquisition. All ayes.

Adjournment: On a motion by Councilmember Flower, seconded by Councilmember Blair, the meeting adjourned at 10:30 PM.

Carolyn Eslick, Mayor

Laura J. Koenig, City Clerk

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DATE: July 10, 2008



SUMMARY:Attached are the minutes of the June 26, 2008 Public Hearing on the Request to Vacate a Portion of Sultan Basin Road as on file in the office of the City Clerk.



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PUBLIC HEARINGS:The Public Hearing on a request to Vacate a Portion of Sultan Basin Road was called to order by Mayor Eslick. Councilmembers present: Wiediger, Slawson, Flower, Blair and Doornek, Champeaux and Davenport-Smith.

There were no objections to the Council participation.

Staff: Bob Martin, Community Development Director.

The hearing was opened, however, due to a posting error, no public input will be received and staff will request the hearing be continued to a later date.

Vacation of a public right-of-way is a process controlled by statute (RCW 35.79). Once a petitioner has completed the submittals required by the statute, it is necessary for the Council to hold a public hearing. In a vacation, the petitioner is not purchasing land. The petitioner is purchasing the public right-of-way (the public’s right to access across the land) that is a legal encumbrance on the land.

Terra Ex Land Group is requesting vacation of approximately 860 lineal feet of un-used right-of-way of Sultan Basin Road north of its previous intersection with Hwy. 2. Sultan Basin Road has been reconstructed such that its intersection with Hwy. 2 is approximately 600 feet east of its previous intersection. The right-of-way proposed for vacation is no longer used as a public traveled way. The application has been submitted, fees have been received and an appraisal has been submitted. There are several utility easements in the portion of the street to be vacated and no building will be allowed on the easements. The vacation has been requested to allow the property owner to control the property and limit public access. The City will received payment for the vacated portion of the street.

On a motion by Councilmember Flower, seconded by Councilmember Champeaux, the public meeting was continued to July 10, 2008. All ayes.



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DATE: July 10, 2008



SUMMARY:Attached are the minutes of the June 26, 2008 Public Hearing on the Comcast Cable Franchise Agreement as on file in the office of the City Clerk.



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PUBLIC HEARINGS:The Public Hearing on the Cable Franchise Agreement with Comcast was called to order by Mayor Eslick. Councilmembers present: Champeaux, Wiediger, Slawson, Davenport-Smith, Flower, Blair and Doornek. There were no objections to the Council participation.

Staff: Deborah Knight, City Administrator

The issue before the City Council is to hold a public hearing in accordance with SMC 5.28.030 to consider granting a non-exclusive franchise to Comcast to use City streets and public rights-of-way for operating and maintaining a cable communications system. In conducting the public hearing, the City Council must consider:

A. That the public will be benefited by granting a franchise agreement to Comcast.B. That Comcast has the requisite financial and technical resources and capabilities to

build, operate and maintain a cable television system in the area;C. That Comcast has no conflicting interest, either financial or commercial which will be

contrary to the interests of the City;D. That Comcast will comply with the terms and conditions placed upon franchisee by

Chapter 5.28.E. That Comcast is capable of complying with all relevant federal, state, and local

regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise.

The City has reviewed Comcast’s performance under the prior franchise and the quality of service during the prior franchise term and has determined that Comcast’s plan for operating and maintaining its Cable System meets the statute requirements. The City has worked with a consortium of Cities to negotiate the agreement and those cities have also brought the ordinance forward for action. The proposed changes included:

1. Definition of gross revenues – includes only the video services. 2. Five year term only instead of the 15 year terms in the past.3. Competitive changes within the cable industry.4. Receives franchise fee and utility tax.5. PEG system contribution will be $3000.6. Municipal buildings will continue to receive the service.

Public InputNone

On a motion by Councilmember Slawson, seconded by Councilmember Davenport-Smith, the public meeting was closed. All ayes.


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SULTAN CITY COUNCIL

AGENDA ITEM COVER SHEET

ITEM #: Consent C 4

DATE: July 10, 2008

SUBJECT: Voucher Approval


SUMMARY:Attached are the vouchers for approval in the amount of $91,103.74,and payroll through June 27, 2008 in the amount of $56,984.29 to be drawn and paid on the proper accounts.

FISCAL IMPACT: $148,088.03

RECOMMENDATION:Approve the payment of vouchers as submitted.

COUNCIL ACTION:

DATE:

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City Of SultanVoucher Approval

July 10, 2008

I, the undersigned, do hereby certify under penalty of perjury, that the materials have been furnished, the services rendered, or the labor performed as described hereon, and that the claim is just, due and an unpaid obligation against the City of Sultan, and that I am authorized to authenticate and certify to said claim.

Laura J. Koenig, Clerk/Deputy Finance Director

We, the undersigned City Council of Sultan Washington, do hereby certify that the merchandise or services hereinafter specified have been received and the claims are approved for payment in the following amounts:

Payroll Check #14587-14601 $ 14,658.15Direct Deposit #14 $ 24,453.99Benefits Check #14583-14586 $ 2,337.54Tax Deposit #13 $ 15,534.61Accounts PayableCheck #22732-22781 $ 91,103.74

TOTAL $148,088.03

Bruce Champeaux, Councilmember Steve Slawson, Councilmember

Ron Wiediger, Councilmember Sarah Davenport-Smith, Councilmember

Jim Flower, Councilmember Kristina Blair, Councilmember

Dale Doornek, Councilmember

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ITEM #: Consent C 5

DATE: July 10, 2008

SUBJECT: Library Board Appointments


SUMMARY STATEMENT:The issue before the Council is the confirmation of the appointments of Emily Abt and Paige Copple as student representatives to the Sultan Library Board for an additional year. Jackie Personeus, Sultan Library Branch Manager, has submitted a letter of support for the appointments from the Sultan Library Board (Attachment A).

Emily Abt has served for two years on the Board and Paige Copple has served for one year on the board.

BACKGROUNDOrdinance 963-07 amended the Library Board membership to include two student representative. (Attachment B). It has been requested that the Council confirm the appointments of both students at this time.

ALTERNATIVES1. Confirm the appointments of the student representatives to the Sultan Library

Board.2. Do not confirm the appointments of the student representatives to the Sultan

Library Board.

RECOMMENDED ACTION: Confirm the appointments of Emily Abt and Paige Copple as student representatives to the Sultan Library Board.

Attachments: A. Letter Requesting AppointmentsB. Ordinance 963-07 Library Board Membership

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ATTACHMENT B

CITY OF SULTANORDINANCE 963-07

AN ORDINANCE OF THE CITY OF SULTAN, WASHINGTION, AMENDING SMC CHAPTER 2.18.020 LIBRARY BOARD MEMBERSHIP

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SULTAN AS FOLLOWS:

Section 1: SMC 2.18.020 is hereby amended to read as follows:

2.18.020 Membership and compensation.A. The library board shall be composed of six members who shall be appointed by the mayor

and confirmed by the city council to serve a term of five years; provided, however, only one trustee position term shall expire in any one calendar year. No trustee shall serve more than two consecutive terms. Two Sultan High School student representatives shall be appointed for a one-year term commencing July 1st and ending June 30th.

B. Members of the board shall be bona fide residents of Snohomish County and shall also be residents of the Sultan library service area.

C. No board member shall receive any compensation from the city for his/her service on the board.

Section 3 Severability: This ordinance is severable and if any portion of it shall be declared invalid or unconstitutional, the remaining portion shall remain valid and enforceable.

Section 4. Effective Date: This ordinance shall take effect and be in full force five (5) days after publication as required by law.

REGULARLY adopted this 27th day of September, 2007.

Benjamin Tolson, Mayor

Attest:



Thom Graafstra, City Attorney

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DATE: July 10, 2008

ITEM #: C - 6

SUBJECT: Professional Service Contract for Information Technology Service with Iron Goat Networks, LLC CONTACT PERSON: Carole Feldmann, Executive Assistant

ISSUE: Authorize the Mayor to sign a year 1-year contract with Iron Goat Networks, LLC to provide on-call services at a cost not to exceed $ 15,000.00.

SUMMARY STATEMENT: The City of Sultan submitted a legal ad for IT Services to run on May 16 & 23, 2008 in the Daily Journal of Commerce and the Everett Herald. Interested Vendors were to respond by June 13, 2008. The City received 3 bid proposals. On June 24, 2008 the Finance Committee met to review the bids and select a proposal. Iron Goat Networks was chosen as the successful vendor.

BACKGROUND: The City of Sultan needs a Permanent Information Technology Solution. The majority of the city’s work is done on computers and over the internet, reliable equipment and a sound network is a mandate for proficient and timely communication and work product deliverability. This will ensure the success of employees tasked with city projects and the numerous federal, state,and county compliance mandates in all departments. There have been several times when the city has been faced with computer, internet, and email problems that have delayed the delivary of information, documents, or other materials due to the unavailabiltiy of IT support staff.

The 3 bids received are summarized below.

1. Quicklight LLC (DBA: Quicklight Computer Repair & Quicklight Networks)Paul Fischetti CTO10929 Evergreen Way Suite BEverett WA 98204425.438.2050

Annual Cost of $ 691,000 per year

2. TitleSCAN Web Systems Norman Street – Senior Systems Engineer42923 170th Street SE

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Gold Bar WA 98251360.793.2183

Annual Fixed Cost of $ 36,000.00

3. Iron Goat Networks, llc PO Box 1232Sultan WA 98294-1232360.799.0552Ryan & Caroline Spott

Option 1 - Hourly Retained Services $1435.00 = 20.5 billable monthly hrs @ $ 70.00 Non Emergency Support @ 70.00 hr Emergency Support during business hrs @ 85.00 After hours emergency support @ 100.00

This would not include emergencies: Yearly fixed $ 17,220.00

Option 2 - Flat Hourly Billing Scheduled Support & Maintenance: @ 70.00 Remote Emergency Support Regular Hours @ 85.00 On Site Emergency Support Regular Hours @ 100.00 Remote After Hours Support @ 100.00 On Site After hours Support @ 115.00

*(drive time for living in Sultan is excluded)

These proposals do not include email and web host services and that is currently being reviewed with Iron Goat Networks.

ALTERNATIVES: All reasonable alternatives have been researched signing a contract for services with Iron Goat Networks, is the most cost effective solution to the city’s IT needs.

1. Authorize the Mayor to sign a contract with Iron Goat Networks, LLC on a Flat Hourly Billing Rate as outlined in Option 2. This option appears to be the most cost effective solution to the city. After the initial assessment and implementation of equipment, software, and network repair and maintenance should be minimal.

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2. Do not authorize the Mayor to sign, the city is in critical need of a solid functioning computer network, data backup and internet capabilities, continuing to ignore the importance of IT Support could create a disastrous

situation for the City.

3. Do not authorize the Mayor to sign and direct staff to areas of concern.

FISCAL IMPACT: First year costs estimated at $15,000.00

RECOMMENDEDATION: Authorize Mayor to sign contract with Iron Goat Networks, LLC Option 2 for Information Technology Services

MOTION:

Attachments: A. Scope of Work Iron Goat Networks B Proposal from Iron Goat Networks (Option 2 final page) C Proposal from Title SCAN Systems D Proposal from QuickLight LLC E Professional Services Contract between City & Iron Goat Networks

Council Action:Date:

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AGREEMENT FOR SERVICESBETWEEN THE CITY OF SULTAN AND

IRON GOAT NETWORKS, LLC

THIS AGREEMENT, is made this 10th day of JULY, 2008, by and between the City of Sultan (hereinafter referred to as “City”), a Washington Municipal Corporation, and IRON GOAT NETWORKS, LLC (hereinafter referred to as “Service Provider”), doing business at: 721 DEPOT LANE, SULTAN WA 98294.

WHEREAS, Service Provider is in the business of providing certain services specified herein; and

WHEREAS, the City desires to contract with Service Provider for the provision of such services for INFORMATION TECHNOLOGY, and Service Provider agrees to contract with the City for same;

NOW, THEREFORE, in consideration of the mutual promises set forth herein, it is agreed by and between the parties as follows:

T E R M S

1. Description of Work. Service Provider shall perform work as described in Attachment A, Scope of Work, which is attached hereto and incorporated herein by this reference, according to the existing standard of care for such services. Service Provider shall not perform any additional services without the expressed permission of the City.

2. Payment.

A. The City shall pay Service Provider at the hourly rate set forth in Attachment B, Option 2 for the services described in this Agreement. This is the maximum amount to be paid under this Agreement, and shall not be exceeded without prior written authorization from the City in the form of a negotiated and executed supplemental agreement.

B. Service Provider shall submit monthly payment invoices to the City after such services have been performed, and the City shall make payment within four (4) weeks after the submittal of each approved invoice. Such invoice shall detail the hours worked, a description of the tasks performed, and shall separate all charges for clerical work and reimbursable expenses.

C. If the City objects to all or any portion of any invoice, it shall so notify Service Provider of the same within five (5) days from the date of receipt and shall pay that portion of the invoice not in dispute. The parties shall immediately make every effort to settle the disputed portion.

3. Relationship of Parties. The parties intend that an independent contractor - client relationship will be created by this Agreement. As Service Provider is

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customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or subcontractor of Service Provider shall be or shall be deemed to be the employee, agent, representative or subcontractor of the City. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance and unemployment insurance, are available from the City to the Service Provider or his employees, agents, representatives or subcontractors. Service Provider will be solely and entirely responsible for his acts and for the acts of Service Provider's agents, employees, representatives and subcontractors during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that Service Provider performs hereunder.

4. Project Name. Information Technology Support Services for City of Sultan

5. Duration of Work. Service Provider shall complete the work described in Attachment A as specified.

6. Termination.

A. Termination Upon the City's Option . The City shall have the option to terminate this Agreement at any time. Termination shall be effective upon ten (10) days written notice to the Service Provider.

B. Termination for Cause. If Service Provider refuses or fails to complete the tasks described in Attachment A, or to complete such work in a manner unsatisfactory to the City, then the City may, by written notice to Service Provider, give notice of its intention to terminate this Agreement. After such notice, Service Provider shall have ten (10) days to cure, to the satisfaction of the City or its representative. If Service Provider fails to cure to the satisfaction of the City, the City shall send Service Provider a written termination letter which shall be effective upon deposit in the United States mail to Service Provider's address as stated below.

C. Rights upon Termination. In the event of termination, the City shall only be responsible to pay for all services satisfactorily performed by Service Provider to the effective date of termination, as described in the final invoice to the City. The City Manager shall make the final determination about what services have been satisfactorily performed.

7. Nondiscrimination. In the hiring of employees for the performance of work under this Agreement or any subcontract hereunder, Service Provider, its subcontractors or any person acting on behalf of Service Provider shall not, by reason of race, religion, color, sex, marital status, national origin or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates.

8. Indemnification / Hold Harmless. The Service Provider shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection

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with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City.

Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, 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 the Service Provider and the City, its officers, officials, employees, and volunteers, the Service Provider’s liability hereunder shall be only to the extent of the Service Provider’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Service Provider’s waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement.

9. Insurance. The Service Provider shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Service Provider, their agents, representatives, employees or subcontractors.

A. Minimum Scope of Insurance. Service Provider shall obtain insurance of the types described below:

1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage.

2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named as an insured under the Service Provider’s Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement GC 20 10 10 01 and GC 20 37 10 01 or substitute endorsements providing equivalent coverage.

3. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington.

B. Minimum Amounts of Insurance. Service Provider shall maintain the following insurance limits:

1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident.

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2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000 products-completed operations aggregate limit.

C. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance:

1. The Service Provider’s insurance coverage shall be primary insurance as respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Service Provider’s insurance and shall not contribute with it.

2. The Service Provider’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.

D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII.

E. Verification of Coverage. Service Provider shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Service Provider before commencement of the work.

F. Subcontractors. Service Provider shall include each subcontractor as insured under its policies or shall furnish separate certifications and endorsements for each subcontractor. All coverage shall be subject to all of the same insurance requirements as stated herein for the Service Provider.

10. Entire Agreement. The written provisions and terms of this Agreement, together with all documents attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of, or altering in any manner whatsoever, this Agreement.

11. City's Right of Supervision, Limitation of Work Performed by Service Provider. Even though Service Provider works as an independent contractor in the performance of his duties under this Agreement, the work must meet the approval of the City and be subject to the City's general right of inspection and supervision to secure the satisfactory completion thereof. In the performance of work under this Agreement, Service Provider shall comply with all federal, state and municipal laws, ordinances, rules and regulations

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that are applicable to Service Provider's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations.

12. Work Performed at Service Provider's Risk. Service Provider shall be responsible for the safety of its employees, agents and subcontractors in the performance of the work hereunder and shall take all protections reasonably necessary for that purpose. All work shall be done at Service Provider's own risk, and Service Provider shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work.

13. Ownership of Products and Premises Security.

A. All reports, plans, specifications, data maps, and documents produced by the Service Provider in the performance of services under this Agreement, whether in draft or final form and whether written, computerized, or in other form, shall be the property of the City.

B. While working on the City’s premises, the Service Provider agrees to observe and support the City’s rules and policies relating to maintaining physical security of the City’s premises.

14. Modification. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Service Provider.

15. Assignment. Any assignment of this Agreement by Service Provider without the written consent of the City shall be void.

16. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Any written notice hereunder shall become effective as of the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing.

17. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect.

18. Resolution of Disputes, Governing Law. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall be referred to the City Manager, whose decision shall be final. In the event of any litigation arising out of this Agreement, the prevailing party shall be reimbursed for its reasonable attorney fees from the other party. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington.

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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and

year above written.

CITY OF SULTAN SERVICE PROVIDER

By: By: Carolyn Eslick, Mayor Title:

Taxpayer ID #:

CITY CONTACT SERVICE PROVIDER CONTACT City of Sultan 319 Main Street, Suite 200 Sultan, WA 98294 Phone: 360-793-2231 Phone: Fax: 360-793-3344 Fax:

ATTEST/AUTHENTICATED

By: City Clerk

APPROVED AS TO FORM

By: Office of the City Attorney

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DATE: July 10, 2008

ITEM #: C - 7

SUBJECT: Skate Board Park Construction CONTACT PERSON: Jon Stack, City Engineer; PE

SUMMARY STATEMENT: All bids received on the City of Sultan Skate Board Park were rejected at the June 26, 2008 Council Meeting, because the City received only one responsive bid and two bids were non-responsive. (meaning they didn’t meet the guidelines on materials as set forth in the bid document.) The amount of the single bid that did meet the bid document requirements was cost prohibitive. The council would like to proceed as quickly as possible with this project and requested alternatives.

BACKGROUND: A reasonable expectation for budget purposes was $100,000.00. Ads for invitation to bid were placed in the Daily Journal of Commerce and Everett Herald on May 16 & 23, 2008. Bids were opened on June 9, 2008. The Bid Document called for concrete ramps, two of the bids were for metal ramps which was non-responsive to what the bid document called for construction. Only one responsive bid was received however it well exceeded the funding available for the project.

Outline of bids previously received and rejected.

Premium Construction Group – Concrete Ramp Constructiono Phase 1: 123,887.30 Phase 2: 56,490.00 Tax: 15,332.07

Total: $195,709.37 Premium Construction Group – Metal Ramp Construction

o Phase 1: 99,887.30 Phase 2: 55.112.70 Tax: 13,175.00

Total: $168,175.00 American Ramp Company – Metal Ramp Construction

o Phase 1: 43,030.00 Phase 2: 29,418.85 Tax: 6,158.15

Total: $ 78,607.00

Alternatives were researched on this project and it was learned the concrete ramps were available off the State of Washington Contract Bid List for Recreation Equipment Contract #14803 which is available to cities without bidding. City Engineer Jon Stack spoke directly with Jeff Hansen of Northwest Recreation of Washington, who prepared a Quote for the installation of the concrete ramps for the Sultan Skate Park. To deliver, install, and set up both phases of the project the quote received is: $ 102,112.05,

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including sales tax. This does not include the benches,water fountain, fencing or entry facility. ALTERNATIVES: This appears to be the most cost effective solution, because there are additional bidding costs from the Architect if the project where put out for re-bid.

FISCAL IMPACT: $102,112.05 from Park Funds

RECOMMENDEDATION: Approve the Quote from Northwest Recreation of Washington to deliver and install the Concrete Ramps in accordance with the specifications set forth in the Sultan Skate Park Bid Document. This would provide use of the park, while awaiting the fence and ancillary items to be acquired and installed.

MOTION: Move to accept quote from Northwest Recreation of Washington as represented by Jeff Hansen.

Attachments: A. Northwest Recreation of Washington Quote B Newspaper Article (AP) Concrete Skate Parks Preferred

Council Action:Date:

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SULTAN CITY COUNCIL AGENDA COVER SHEET

ITEM NO: C - 8

DATE: July 10, 2008

SUBJECT: Interlocal Agreement with the Town of La ConnorBiosolids Handling

CONTACT PERSON: Connie Dunn, Public Works Director

ISSUE:The issue before the City Council is to authorize the Mayor to execute an interlocal agreement between the Town of La Connor and the City of Sultan, to provide for proper handling, processing and disposal of dewatered sludge generated by the Sultan Wastewater Treatment Plant beyond the capacity of the current facilities.

STAFF RECOMMENDATION:The City Council to authorize Mayor Eslick to sign the Interlocal Agreement (ILA) with the Town of La Connor to receive City of Sultan sludge at the La Connor Composting Facility. The Town of La Connor Council approved this ILA, (Attachment A) staff is presenting it for Sultan Council to approve Mayor Eslick's signature.

The Council approved an ILA with La Connor on November 8, 2007 to compost dewatered sludge at $27.00 per ton. La Connor is requesting a new ILA to increase the cost to $101.00 per ton to cover increasing expenses.

SUMMARY:The City of Sultan has inadequate facilities to handle the dewatered sludge produced at the Wastewater Treatment Facility; the Town of La Connor has sufficient capacity to process approximately fifty percent (50%) of Sultan’s dewatered sludge at their facility.

Sultan will pay La Conner a $9.00 base fee per month as an administration fee. Under the proposed ILA Sultan will pay La Conner a per ton fee of $101.00 (measured as wet or scale weight), this is an increase from the existing $27.00 per wet ton. The increased fee is based on the excessive feedstocks (sawdust and hog fuel) needed to compost the biosolids that Sultan produces from the existing dewatering equipment (a Somat). Sultan will deliver biosolids to La Conner billing Sultan monthly.

The reason Sultan hauls to La Connor at this time was a recommendation from Groco to find an alternative source for a share of Sultan’s Biosolids in 2006. After a recent conversation Sultan Wastewater Plant Staff had with a Groco employee, it appears in the near future Groco may increase their tipping fees to triple of the current $64.00 per wet ton.

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BACKGROUND:In the 1980’s Sultan had a permit from Snohomish Health District to apply biosolids on private property in the Basin. The City of Sultan took sludge to the City of Monroe from 1991 to 2004. After Monroe was out of capacity to handle Sultans biosolids, Sultan contracted for hauling of the biosolids to Rye Grass Ranch, Kittitas, 2004-05. Currently dewatered sludge is being hauled to Groco Compost Facility in Renton and the La Connor Wastewater Treatment Plant in La Connor for proper handling and process.

Occasionally, the City of Sultan cannot reach the minimum of 9% dewatered sludge that is required to dispose at La Connor. In these instances, the dewatered sludge is hauled to Groco. After reviewing the costs at Groco and La Conner, the City will be hauling to Groco until a new fee becomes effective.

The cost of materials to mix with biosolids for composting at Groco increased in 2005 that raised the cost of disposing of dewatered sludge from $32.00 to $64.00 per ton and Sultan’s cost, Groco staff has told Sultan Staff there is an increase in fees being considered at Groco, likely triple existing costs.

DISCUSSION:Key features of the La Connor Agreement:

The cost $101.00 per ton plus $9.00 per month Maximum volume of dewatered sludge accepted is 100 tons per month The duration of this agreement shall be indefinite, but termination can be either

party by providing sixty (60) day written notice. This agreement shall be subject to an annual review conducted on or around

December 1 of each year for the duration of the agreement. If conditions at the La Conner Wastewater Treatment Plant require, La Conner

reserves the right to request Sultan to retain its dewatered sludge until the conditions at the plant allow La Conner to accept the dewatered sludge.

FISCAL IMPACT:Cost for disposal at La Connor is $101.00 per ton for 9% or greater of dewatered sludge, with a maximum of 100 tons per month. A volume greater than the 100 tons per month will require a written request from the City of Sultan to La Connor’s Wastewater Treatment Plant Supervisor for permission to exceed these volumes.

The 2008 average volume of sludge produced each month at the City of Sultan Wastewater Treatment Plant is 66.12 tons per month.

Groco Composting Facility currently charges $64.00 per ton.La Connor Wastewater Treatment Plant charges $101.00 per ton.Sultan’s 2008 budget includes $50,000.00 for dewatered sludge disposal.The January – May 2008 cost for biosolids processing is $14,318.86 for 330.6 ton. Worst-case scenario, if Sultan were to haul the estimated tonnage to La Connor for the balance of the year, the tipping cost estimate is $46,744.00 totaling approximately $61,000.00 for 2008.

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With La Connor’s increased cost Sultan will be hauling to Groco as primary recipient as space and costs allow with La Connor as the secondary recipient. Cost could be reduced with splitting the haul to location.

ALTERNATIVES:1. Continue hauling to Groco at $64.00 per ton until they reject Sultan’s biosolids or

increase their tipping fees, using La Connor as an alternate source to haul dewatered sludge.

2. Approve the new ILA cost with the added cost for tipping to La Connor at $101.00 per ton for composting. When Sultan’s dewatered sludge does not meet the 9%, we can haul sludge to Gro Co. Sultan WWTP staff will be monitoring the production of and the percentage of solids of the dewatered sludge on a per trip basis to determine if the biosolids will go La Connor or Groco for composting.

City staff is working on biosolids handling by replacing the Somat with a Centrifuge that will produce a dryer product to compost. The City of Sultan is continuing to work with the City of Monroe to develop an interlocal to handle sludge by composting at Monroe’s new site. This site is located at the old Honor Farm, with expected opening 2009.

COUNCIL MOTION:Authorize the Mayor to sign the interlocal agreement with the Town of La Connor for handling Sultan’s dewatered sludge by composting.

COUNCIL ACTION:

ATTACHMENTS:

Attachment A Interlocal with the City of La Connor May 20, 2008


ITEM NO: A-1

DATE: July 10, 2008

SUBJECT: First Reading of Ordinance 983-08


ISSUE:

The issue before the City Council is to conduct first reading of Ordinance 983-08. This Ordinance enacts the following:


4. Update the Sultan Municipal Code, consistent with SMC 2.26 and 16.120, giving authority to the Hearing Examiner to review Conditional Use Permits instead of the Planning Commission.

STAFF RECOMMENDATION:Conduct first reading of Ordinance 983.08

BACKGROUND:Please refer to the packet provided for Hearing 1.

SUMMARY:Please refer to the packet provided for Hearing 1.

DISCUSSION:Please refer to the packet provided for Hearing 1.

FISCAL IMPACT:Please refer to the packet provided for Hearing 1.

RECOMMENDATION: Conduct first reading of Ordinance 983-08

ATTACHMENTSA -- Proposed Amendments to SMC 21.04 as Ordinance No. 938-08

ATTACHMENT A

ORDINANCE 983-08












Sections:21.04.010 Purpose.21.04.020 Uses requiring a conditional use permit.21.04.030 Application – Requirements and fees.21.04.050 Criteria.21.04.052 Additional criteria for single-family detached dwelling (clustered).21.04.054 Additional criteria for duplexes or two-family dwellings.







21.04.060 Expiration and renewal.21.04.070 Revocation of permit.21.04.080 Performance bond and other security.21.04.090 Resubmittal of application.21.04.010 Purpose.





Application for conditional use permits shall be filed with the planning department on forms prescribed by that office. A filing fee, set by resolution through the annual fee schedule adopted by the City Council,of $850.00 shall accompany all applications. The planning commission hearing examiner will review applications for conditional use permits and the recommendations will be passed to the city council for final action. The planning commission hearing examiner may recommend to the city council denial, approval, or approval with conditions. Conditional use applicants must adhere to all applicable public notification requirements. Denial of conditional use permit applications is not appealable. All conditional use permits are subject to design review procedures. (Ord. 690-98)

21.04.050 Criteria.The following criteria shall apply in granting a conditional use permit:A. The proposed conditional use will not be materially detrimental to the


















A conditional use permit shall automatically expire one year after a notice of decision approving the permit is issued unless a building permit conforming to plans for which the CUP was granted is obtained within that period of time. A conditional use permit shall automatically expire unless substantial construction of the proposed development is completed within two years from the date a notice of decision approving the permit is issued. The planning commission hearing examiner or city council, on appeal, may

authorize longer periods for a conditional use permit if appropriate for the project. The planning commission hearing examiner or city council, on appeal, may grant a single renewal of the conditional use permit if the party seeking the renewal can demonstrate extraordinary circumstances or conditions not known or foreseeable at the time the original application for a conditional use permit was granted, which would not warrant such a renewal. No public hearing is required for a renewal of a conditional use permit. (Ord. 690-98)21.04.070 Revocation of permit.








C. Before a conditional use permit may be revoked or modified, a public hearing shall be held. Procedures concerning notice, reporting and appeals shall be the same as required by this chapter for the initial consideration of a conditional use permit application. (Ord. 690-98)

21.04.080 Performance bond and other security.A performance bond or other adequate and appropriate security may be

required for any elements of the proposed project which the planning commission hearing examiner or city council, on appeal, determines are crucial to the protection of the public welfare. Such bond shall be in an amount equal to 125 percent of the cost of the installation or construction of the applicable improvements. (Ord. 690-98)21.04.090 Resubmittal of application.



CITY OF SULTAN

By______________________________Carolyn Eslick, Mayor

Attest:

By_______________________________Laura Koenig, City Clerk


By_______________________________Kathy Hardy, City Attorney

ATTACHMENT B

ORDINANCE 983-08












Sections:21.04.010 Purpose.21.04.020 Uses requiring a conditional use permit.21.04.030 Application – Requirements and fees.21.04.050 Criteria.21.04.052 Additional criteria for single-family detached dwelling (clustered).21.04.054 Additional criteria for duplexes or two-family dwellings.21.04.060 Expiration and renewal.








21.04.070 Revocation of permit.21.04.080 Performance bond and other security.21.04.090 Resubmittal of application.21.04.010 Purpose.





Application for conditional use permits shall be filed with the planning department on forms prescribed by that office. A filing fee, set by resolution through the annual fee schedule adopted by the City Council,of $850.00 shall accompany all applications. The planning commission hearing examiner will review applications for conditional use permits and the recommendations will be passed to the city council for final action. The planning commission hearing examiner may recommend to the city council denial, approval, or approval with conditions. Conditional use applicants must adhere to all applicable public notification requirements. Denial of conditional use permit applications is not appealable. All conditional use permits are subject to design review procedures. (Ord. 690-98)21.04.050 Criteria.

The following criteria shall apply in granting a conditional use permit:A. The proposed conditional use will not be materially detrimental to the

















A conditional use permit shall automatically expire one year after a notice of decision approving the permit is issued unless a building permit conforming to plans for which the CUP was granted is obtained within that period of time. A conditional use permit shall automatically expire unless substantial construction of the proposed development is completed within two years from the date a notice of decision approving the permit is issued. The planning commission hearing examiner or city council, on appeal, may authorize longer periods for a conditional use permit if appropriate for the project. The planning commission hearing examiner or city council, on

appeal, may grant a single renewal of the conditional use permit if the party seeking the renewal can demonstrate extraordinary circumstances or conditions not known or foreseeable at the time the original application for a conditional use permit was granted, which would not warrant such a renewal. No public hearing is required for a renewal of a conditional use permit. (Ord. 690-98)21.04.070 Revocation of permit.








C. Before a conditional use permit may be revoked or modified, a public hearing shall be held. Procedures concerning notice, reporting and appeals shall be the same as required by this chapter for the initial consideration of a conditional use permit application. (Ord. 690-98)21.04.080 Performance bond and other security.

A performance bond or other adequate and appropriate security may be required for any elements of the proposed project which the planning commission hearing examiner or city council, on appeal, determines are crucial to the protection of the public welfare. Such bond shall be in an amount equal to 125 percent of the cost of the installation or construction of the applicable improvements. (Ord. 690-98)21.04.090 Resubmittal of application.



CITY OF SULTAN By______________________________



ITEM NO: A-2

DATE: July 10, 2008

SUBJECT: Ordinance No. 985-08 Establishing a Stormwater Utility


ISSUE:

The issue before the City Council is to have First Reading of Ordinance No. 985-08 (Attachment A) to establish a stormwater utility.

Action Item #3 is a separate discussion to establish the base fee for the stormwater utility.


Have First Reading of Ordinance No. 985-08 to establish a stormwater utility.

PLANNING BOARD RECOMMENDATION:

The Planning Board held a public hearing at its meeting on July 17, 2007. Public comment at the meeting was supportive of adopting the Utility. The Board received comments requesting a stormwater utility credit potential for private residential property owners that fully contain all rain water and resulting runoff from adjacent property and buildings.

Although the Small Work Group did not contemplate a credit for private residential facilities, City staff recommend incorporating language into credit section (14.04.080(1)) to address this situation.

COUNCIL SUBCOMMITTEE RECOMMENDATION:

The Council subcommittee reviewed the stormwater utility at its July 17, 2007 meeting. The committee discussed establishing a connection fee for new development in addition to the user fee. The City of Edmonds has adopted a stormwater connection fee. City staff recommend the City Council proceed with adopting the proposed ordinance as written and directing staff to review the stormwater connection fee following adoption of the proposed ordinance.

STORMWATER STAKEHOLDER’S RECOMMENDATION:

A subgroup of the Stormwater Stakeholders prepared and submitted a recommendation for the stormwater utility fee. The subgroup’s recommendation is included as an alternative in Action Item #3.

SUMMARY:

Proposed Ordinance

The proposed ordinance creates a new chapter (Chapter 14.04) in the Sultan Municipal Code for the Stormwater Utility. The new chapter establishes the utility, rate policy, affected properties, initial utility fee rates (i.e. equivalent ERU), exemptions, credits, billings, adjustments and appeals.

The base rate is established by a separate ordinance.

Establishing the Utility

A surface water utility is essentially a special assessment district set up to generate funding specifically for surface water management. Users within the district pay a surface water fee, and the revenue generated directly supports maintenance and upgrade of existing storm drain systems; development of drainage plans, flood control measures, and water-quality programs; administrative costs; and sometimes construction of major capital improvements. Unlike a surface water program that draws on the general tax fund or uses property taxes for revenue, the people who benefit are the only ones who pay.

Surface water management within the City is governed by federal, state, regional, county and city laws including the Clean Water Act, Endangered Species Act, the Growth Management Act, Shoreline Management Act, State Environmental Policy Act, Stormwater Management Performance Standards, and Puget Sound Water Quality Action Plan (Attachment B).

There are a number of state statutes that pertain either directly or indirectly to the City’s authority to form a surface water utility. One of the more broad based statutes pertains to municipal utilities in general and states that a code city may provide utility service within and outside its city limits and this includes the exercise of all powers to the extent authorized by law (RCW 35A.80.010).

Rates and Policies

The stormwater utility is made up of three components:

1. Calculation of Equivalent Residential Units (ERU)

2. Annual budget needed to accomplish stormwater functions within the City (e.g. maintenance, operations, capital improvements, public outreach, etc.)

3. Stormwater fee (base rate) charged to for each ERU

Equivalent Residential Units

The Equivalent Residential Unit is the most prevalent method for calculating a stormwater rate. ERU's are used for the purpose of calculating the stormwater user's rate. An ERU represents the average square footage of impervious surface of a detached single-family residential property and is applied to commercial properties to calculate the commercial rate. The ERU is established by reviewing a representative sample of recorded date, maps, surveys or field measurement to obtain the average impervious area for a single-family lot. Non-residential properties are converted into ERUS based on the amount of impervious area on the property.

Each single family residential customer = 1 ERUEach non-residential customer = n ERUsWhen n = the property's impervious area divided by the average single-family parcel impervious area (x square feet)

For the City of Sultan, the calculated ERU is 4,519 square feet. Of the 14 jurisdictions examined in the phone survey for the study, Sultan's ERU was the second highest. This is largely due to the rural nature of residential properties and the number of barns and outbuildings.

The total number of ERUs in the City are:

Multifamily Residential 1-4 plexes 75Commercial Properties 920Residential Properties 1,246Schools 398 Total 2,639

The Stormwater Utility Rate Study (available at City Hall upon Request) includes a section Appendix B to the Study titled "Equivalent Residential Unit – City of Sultan Stormwater Utility". This section provides the detail on how the ERU was calculated for the City. Appendix C to the Study details the impervious surface calculation for each commercial property.

Real Property in an Undeveloped Condition

Stormwater utility fees are based on impervious surface which is the nexus between stormwater runoff and impact to the stormwater system. No stormwater fee will be imposed on parcels of real property that are in an entirely undeveloped state and are determined by the Public Works Director to not make use of the services of the Utility.

Rate Policy.

The Base Rate is based on the relative contribution of increased surface and stormwater runoff from a given parcel to the stormwater system.

The percentage of impervious surfaces on the parcel and the total parcel acreage is used to indicate the relative contribution of increased surface and stormwater runoff from the parcel to the stormwater system.

The relative contribution of increased stormwater runoff from each parcel will determine that parcel’s share of the Stormwater Utility Fee revenue needs.

The Stormwater Utility Fee revenue needs of the Utility are based upon all or any part, as determined by the Council, of the cost of stormwater services or to pay or secure the payment of all or any portion of any issue of general obligation or revenue bonds issued for such purpose.

The Public Works Department shall determine the stormwater utility fee for each parcel within the Utility based on percentage of impervious surface.

Property Classification for Stormwater Utility Fee.

For purposes of determining the Stormwater Utility Fee, all properties in the City are classified into one of the following classes:

1. Single-family detached residential property;

2. Two-, three- and four-family residential property; or

3. Commercial and Other developed property including multi-family (5-99 units).

Single-family residential fee: The City Council finds that the intensity of development of most parcels of real property in the City classified as single-family residential is similar and that it would be excessively and unnecessarily expensive to determine precisely the square footage of the improvements (such as building, structures, and other impervious areas) on each such parcel. Therefore, all single-family residential properties in the City are charged a flat stormwater management fee, equal the Base Rate, regardless of the size of the parcel or the improvements.

Two-, three- and four-family residential fee: The City Council finds that the intensity of development of most two-, three- and four-family residential properties is approximately 1.75 times that of the average single-family residential properties. Therefore, the fee for all two-, three- and four-family residential properties are 1.75 times the stormwater fee charged to single-family residential properties.

Commercial and Other developed property fee: The fee for commercial and all other developed property in the City is the base rate multiplied by the numerical factor obtained by dividing the total impervious surface area (square feet) of the property by one ERU. The minimum stormwater utility fees for other developed property shall be equal the Base Rate for single-family residential property.

Properties Exempt from Fees

The following special categories of property are exempt from the Stormwater Utility Fee:

1) City street rights-of-way, because the City Council has determined that the value of the in-kind service provided by the rights-of-way in collecting and transporting storm and surface water from adjacent properties is equal to or exceeds the Stormwater Utility Fee that would be charged by the Utility

2) State of Washington highway rights-of-way and Snohomish County road rights-of way so long as the State of Washington and Snohomish County shall agree to maintain, construct and improve all drainage facilities contained within such rights-of-way as required by the Utility in conformance with all Utility standards for maintenance, construction and improvement hereafter established by the Utility and so far as such maintenance, construction and improvements shall be achieved at no cost to the Utility or to the City.

3) Real property within the boundaries of the Utility that are in an entirely undeveloped state and are deemed by the Public Works Director or his/her designee not to make use of the services of the Utility.

Credits Available Against Stormwater Utility Fees

The proposed ordinance includes the fee credits as originally developed by the Small Work Group in 2007.

1) The Utility may grant a credit of twenty-five (25) percent for private, on-site control facilities that benefit the overall stormwater system. If a homeowners association is granted the discount it will be applied to all residential properties listed by the homeowners association as participating properties.

2) The Utility may grant a credit of seventy (70) percent for condition and performance that is compliant with the most recent City and Department of Ecology Best Management Practices (BMP) standards for on-site control facilities that have the capacity to fully contain and infiltrate on the parcel the runoff from the 100-year, 7-day storm event.

3) The Utility may grant public schools twenty-five (25) percent additional credit upon receipt of an acceptable curriculum showing how the school district provides education regarding stormwater issues.

4) Low income senior citizens may apply for a 50% discount to their stormwater utility fee. “Low income senior citizen” means persons 62 years of age or older, on or before January 31st of the year of the filing for the discount. Low income is based on 125 percent of the federal poverty guidelines.

Billing

The charges will be billed in conjunction with the property owner’s or user’s customary water and sanitary sewer bill issued by the City. The City may allocate receipts on billings first to stormwater and sewer to preserve its right to shut off water. For developed properties subject to the service charge that do not otherwise receive a water or sanitary sewer bill from the City of Sultan, the stormwater service charge may be billed at intervals set by the Public Works Director, but not less than annually.

Delinquent accounts shall be determined and administered in a manner consistent with that provided for water and sewer.

Billings may be made in the name of tenant or other occupants of the premises that are provided Stormwater Utility services at the mailing address of the property.

The owner of the property will have liability payment of the charges

In the event the City must bring legal action to collect stormwater service charges and/or penalties, the City, in addition to such charges and penalties, will recover its attorney’s fees and other costs incurred in connection with such collection.

Appeals

1) Any person billed a stormwater fee under may file an “Adjustment Request” with the Public Works Director within sixty (60) days of the date of the billing statement. The Public Works Director will review the request and make a preliminary determination after a review of Utility records or a site visit. The Public Works Director may grant a rate adjustment only upon a finding that one or more of the following conditions exist:

a. The parcel charged is not within the Sultan city limits.

b. The impervious surface area of the parcel would change the number of Equivalent Residential Units used in determining the stormwater fee.

c. The parcel is in an undeveloped condition and not paved, graveled or covered with any impervious surface.

d. The parcel is not single-family and contains a constructed or natural on-site surface water control facility that is determined by the stormwater engineer or inspector to be maintained at optimum operating condition and improves water quality at the outlet to meet State standards for stormwater discharge.

e. The rate charged was otherwise not calculated in accordance with the terms of this chapter.

2) If the property owner does not agree with the preliminary determination, the property owner may submit further evidence supporting the calculation prepared by a licensed surveyor, engineer or professional. This may include an approved drainage plan, a detailed site plan or other information required by the Public Works Director.

3) The property owner will have the burden of proving by a preponderance of the evidence that the desired Adjustment Request meets the requirements of this section.

4) When granted, an Adjustment Request will only apply to the Service Charge bills subsequently issued. If an Adjustment Request is granted which reduces the rate charge for the current year, the applicant shall be refunded the amount overpaid in the current calendar year only. If the Public Works Director finds that a rate charge bill has been undercharged, then at the Director’s discretion, either an amended bill shall be issued which reflects the increase in the service charge, or the undercharged amount shall be added to the next bill. Any amended bill shall be due and payable under the provisions set forth in this chapter.

5) Decisions of the Public Works Director on Adjustment Requests shall be final unless appealed to the Snohomish County Superior Court within thirty (30) days of the final decision on the Adjustment Request.

PUBLIC OUTREACH:

The City has endeavored to keep the community informed and involved in the discussion to establish a stormwater utility.

The City established a Small Work Group comprised of a city resident, business owner, and Planning Board member to review alternatives and make a recommendation to the Planning Board.

The Small Work Group met on February 20, March 6, April 17, and May 1.

The City held an open house on March 13, 2007. The Open House included information on the proposed Stormwater Utility. Notice of the Open House was mailed to all residents and businesses within the Sultan zip code, including residents outside the City limits.

On March 20, 2007 the Planning Board received an update from the Small Work Group – the Board reviewed the need to form a stormwater utility and the survey of stormwater utilities across the state.

On April 12, 2007 the City Council received an update from the Small Work Group – the Council reviewed the need to form a stormwater utility and the survey of stormwater utilities across the state, and key policy questions.

A second Open House was held on May 15, 2007

On May 1, 2007 the Planning Board reviewed the calculations for the ERU, draft Stormwater Utility Report, and budget, and directed staff to areas of concern.

On May 17, the City Council subcommittee received a similar update.

Notice of the proposed formation of the Stormwater Utility was included in the June and July utility billing statements.

On May 24, the full Council reviewed the calculations for the ERU, draft Stormwater Utility Report, and budget.

On June 26, the Planning Board discussed credits for private facilities, public schools, non-profit organizations, and senior citizens and low-income residents. The Board also reviewed the draft ordinance and credit manual, and directed staff to set the Public Hearing for July 17, 2007.

July 23, meeting with the Sultan School Board to discuss the proposed utility, calculation of equivalent residential units, and grass as a pervious/impervious surface.

August 9, 2007 Public Hearing

On November 30, 2007, the City issued a SEPA determination of non-significance on the proposed stormwater utility. The SEPA comment period closed December 14, 2007.

City staff notified commercial property owners by letter on December 5, 2007 about the proposed utility.

November and December 2007 – Equivalent Residential Units calculated for each commercial, industrial and retail property

January 24, 2008 Public Hearing.

February 28, 2008 continued Public Hearing.

March 10, 2008 Stormwater Stakeholder’s Group Formed. Meetings on March 10, 2008, March 17, 2008, April 7, 2008 and April 21, 2008.

May 29, 2008 presentation by Stormwater Stakeholder’s Group.

May 29, 2008 Council sets the public hearing for June 3, 2008.

The City Council holds a public hearing.

The schedule to review and adopt a Stormwater Utility is as follows:

City Council action to adopt ordinance and amend fee schedule – July 2008

Public outreach and implementation – August and September.

Implementation - October 1, 2008

FISCAL IMPACT:

Cost to Adopt a Surface Water Utility

The cost to adopt a surface water utility include the fee analysis work currently contracted with Shockey Brent. This work is budgeted at approximately $18,500.

The proposed public education/awareness program consists of press releases, community workshop(s), flyers, discussions with interested citizen groups, and public hearings. The estimate for education/awareness is approximately $1,500.

The cost of establishing a billing system is estimated at $2,500 to adapt the City’s existing billing

system. These costs will be refined throughout the year and will be included in the overall cost of

running the utility.

The stormwater utility will be established as an enterprise fund and will reduce expenditures in the

General Fund as a result of moving stormwater maintenance functions such as street sweeping,

vactoring and staff time to maintain the stormwater system from the General Fund.

RECOMMENDED ACTION:

Have First Reading of Ordinance No. 985-08 to establish a stormwater utility.

ATTACHMENTS

Attachment A – Ordinance No. 985-08Attachment B – Stormwater Utility Applicable LawAttachment C – Puget Sound Water Quality Management Plan – Stormwater Quality

Management Plan.

Attachment ACity of Sultan

Snohomish County, Washington

Ordinance 985-08An ordinance of the City of Sultan, Washington enacting a new Title 14 and

establishing a Stormwater Utility for the City

Whereas, the Federal Clean Water Act, 33 U.S.C. 1251 et seq., requires certain political entities, such as the City, to implement stormwater management programs within prescribed time frames, and the Environmental Protection Agency, pursuant to the Federal Clean Water Act, 33 U.S.C. 1251 et seq., has published rules for stormwater outfall permits; and

Whereas, pursuant to RCW Ch. 35 A.11, Ch. 35.67 and Ch. 35.92, the City has the authority to establish a Stormwater Utility and set utility rates, and

Whereas, the City currently combines its Sewer and Stormwater Utility rates into a single utility rate; and

Whereas, in 2001 the City received a loan for $140,000 from the Washington State Revolving Fund to develop a Surface Water Quality Management Plan; and

Whereas, the City commissioned a Surface Water Quality Management Plan Report including analysis of existing conditions and recommendations for a Stormwater Utility and Stormwater Utility rate. A written report was developed by a qualified consultant. Said report is dated December 1, 2002 and is hereby incorporated by this reference; and

Whereas, the City Council finds that the extent of impervious area preventing infiltration or hastening the drainage of storm and surface water from a parcel of property, and carrying contaminants into the streams and receiving waters is the primary factor determining an individual property’s contribution into the City stormwater system; and

Whereas, impervious surfaces, as well as the failure of existing stormwater systems due to inadequate maintenance has increased flood events in recent years.

Whereas, all property within the City will benefit from the Stormwater Utility, which will provide a regional system and improvements, which will protect property from upslope and upstream stormwater effects.

Whereas, the City desires to establish a Stormwater Utility to be responsible for the operation, construction and maintenance of stormwater facilities; for stormwater system planning, and for review of stormwater development plans for compliance with stormwater management codes; and

Whereas, the City Clerk did give notice of a public hearing as required by law; and

Whereas, on August 21, 2003 the City Council did conduct a public meeting for a Surface Water Quality Management Plan to include the establishment of a Stormwater Utility and Stormwater Utility rate; and

Whereas, for purposes of convenience and efficiency, the City has combined its rates and charges for water, sewer, garbage and stormwater into one ordinance; and

Whereas, the City adopted and incorporated the Surface Water Quality Management Plan into the Comprehensive Plan in February 2006 by Ordinance No. 913-06; and

Whereas, the City did set up and involve a Citizen’s Advisory Board to participate in the formation of the Stormwater Utility; and

Whereas, the Citizen’s Advisory Board met on February 10, 2007, March 6, 2007, April 17, 2007 and May 1, 2007; and

Whereas, the City noticed all residents in the Sultan zip code and held on Open House on March 13, 2007 to share information on the proposed utility and take public comment; and

Whereas, on March 20, 2007 the City did update the Planning Board on the progress of the Stormwater Utility development and associated research activities and public involvement; and

Whereas, on May 10, 2007 the City did update the Planning Board; and

Whereas, the Planning Board held a Public Hearing to take public comment on July 17, 2007;

Whereas, the City Council held a Public Hearing to take public comment on August 9, 2007;

Whereas, the City notified all commercial, industrial and retail property owners by mail in October 2007 regarding the proposed utility and fees; and

Whereas, the City Council held a second Public Hearing on January 24, 2008 to take public comment; and

Whereas, the Public Hearing was continued to February 28, 2008 to allow additional comment opportunities; and

Whereas, the City Council formed a Stormwater Stakeholders Group comprised of city residents, business owners, planning board and council representatives to review the proposed utility and make recommendations to the City Council; and

Whereas, the Stormwater Stakeholders met on March 10, 2008, March 24, 2008, April 7, 2008, and April 21, 2008; and

Whereas, the Stormwater Stakeholders support the City’s efforts to establish the Stormwater Utility

Now therefore, the City Council of the City of Sultan, Washington do ordain as follows:

Section 1. The City of Sultan finds, determines and declares that the stormwater system, which provides for the collection, treatment, storage and disposal of stormwater, provides benefits and services to all property within the incorporated City limits. Such benefits include, but are not limited to:

1. the provision of adequate systems of collection, conveyance, detention, treatment and release of stormwater;

2. the reduction of hazards to property and life resulting from stormwater runoff;

3. improvements in general health and welfare through reduction of undesirable stormwater conditions; and

4. improvements to the water quality in the stormwater and surface water system and its receiving waters.

Section 2. A new Title 14 Sultan Municipal Code, entitled “Stormwater” is hereby enacted to read as follows:

TITLE 14 – STORMWATER

Chapter 14.04 STORMWATER UTILITY

Sections:

14.04.010 Establishment of Utility14.04.020 Definitions14.04.030 Rate Policy and establishment14.04.040 Property Classification for Stormwater Utility fee14.04.050 Real Property in an Undeveloped Condition14.04.060 Initial Stormwater Fee14.04.070 Property Exempt from Stormwater Fees14.04.080 Credits available against Stormwater Fees14.04.090 Billing14.04.100 Rate/Charge Adjustment and Appeals

14.04.010 Establishment of Utility. For those purposes of the Federal Clean Water Act and pursuant to authority set forth in RCW Chapters 35A.11, 35.67, and 35.92, there is created a Stormwater Utility (“Utility”), which shall consist of a separate fund account and such staff necessary to implement and manage the Utility as the City Council shall authorize.

The City shall exercise throughout the Utility all lawful powers necessary and appropriate to implement the policies of the City pertaining to the collection, treatment, storage, and disposal of stormwater within the incorporated City limits.

It is not the purpose of this Chapter to create a duty to individual persons or property.[[this language may be amended before second reading.]]

14.04.020 Definitions. The following words when used herein shall have the following meanings, unless the context clearly indicates otherwise:

1) “Adjustment Request” means a request by a rate payer for review and adjustment of the rate or fee levied upon the property.

2) “Base Rate” means the gross charge per ERU needed to satisfy all of the projected costs associated with the stormwater utility for an established period of time.

3) “City” means the City of Sultan, Washington or another city with whom Sultan has an interlocal agreement for stormwater rate collection.

4) “Developed” means the state, status, or condition of the subject property at the time the proposed project has been completed or development permits have expired, which may include existing buildings, impervious areas, and topography as is affected.

5) “Equivalent Residential Unit (ERU)” shall mean the measure of impervious square feet to be used by the Utility in assessing stormwater utility fees against each parcel of property.

6) “Impervious Area” means that hard surface area which prevents or retards the entry of water into the soil mantle and/or causes water to run off the surface in greater quantities or at an increased rate of flow from that present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, roof tops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled macadam or other surfaces which similarly impede the natural infiltration of surface and stormwater runoff.

An area may be impervious whether or not the same is occupied or inhabited.

For the purposes of this definition, open retention/detention facilities and wetlands, appropriately drained grass playfields, playgrounds and sports fields shall not be considered as impervious surfaces.

7) “Non-Profit Organization” as defined by RCW 24.03.490 and RCW 35.92.020(g) or as may be amended.

8) “Stormwater Utility Fee” means the monthly fee levied by the Utility upon all developed real property within the boundary of the Utility as authorized herein.

9) “System” shall mean the entire system of storm drainage facilities owned by the Utility or within the public rights of way for the movement and control of storm and surface waters, including both naturally occurring and manmade facilities.

10) “Undeveloped Property” means the state, status, or condition of the subject property prior to any development of the property, which may include trees, pastures, or native features.

11) “Utility” means the Sultan Stormwater Utility, created by Ordinance No. 985-08 a utility which operates and maintains the storm or surface water drains, channels and facilities, outfalls for storm drainage and the rights and interests in property relating to the system the boundaries of which shall be the city limits of the City of Sultan and future additions thereto.

14.04.030 Rate Policy. It shall be the policy of the City that the rate structure be based upon the Equivalent Residential Unit (ERU), which will be adopted by separate ordinance by the City.

1). The Base Rate shall be based on the relative contribution of increased surface and stormwater runoff from a given parcel to the stormwater system. The percentage of impervious surfaces on the parcel and the total parcel acreage will be used to indicate the relative contribution of increased surface and stormwater runoff from the parcel to the stormwater system. The relative contribution of increased stormwater runoff from each parcel will determine that parcel’s share of the Stormwater Utility Fee revenue needs. The Stormwater Utility Fee revenue needs of the Utility are based upon all or any part, as determined by the Council, of the cost of stormwater services or to pay or secure the payment of all or any portion of any issue of general obligation or revenue bonds issued for such purpose.

2). The Public Works Department shall determine the stormwater utility fee for each parcel within the Utility based on percentage of impervious surface. Aerial photographic mapping, ortho-rectified aerial photographs (orthophotos), as-built drawings, and parcel boundaries obtained from the Snohomish County Assessor (or other appropriate data) will be used to determine each parcel’s percentage of impervious surface coverage.

14.04.040 Property Classification for Stormwater Utility Fee.

1) Property Classification: For purposes of determining the Stormwater Utility Fee, all properties in the City are classified into one of the following classes:

Single-family detached residential property;

Two-, three- and four-family residential property; or

Commercial and Other developed property including multi-family (5-99 units).

2) Single-family residential fee: The City Council finds that the intensity of development of most parcels of real property in the City classified as single-family residential is similar and that it would be excessively and unnecessarily expensive to determine precisely the square footage of the improvements (such as building, structures, and other impervious areas) on each such parcel. Therefore, all single-family residential properties in the City shall be charged a flat stormwater management fee, equal the Base Rate, regardless of the size of the parcel or the improvements.

3) Two-, three- and four-family residential fee: The City Council finds that the intensity of development of most two-, three- and four-family residential properties is approximately 1.75 times that of the average single-family residential properties. Therefore, the fee for all two-, three- and four-family residential properties will be 1.75 times the stormwater fee charged to single-family residential properties.

4) Commercial and Other developed property fee: The fee for commercial and all other developed property in the City shall be the base rate multiplied by the numerical factor obtained by dividing the total impervious surface area (square feet) of the property by one ERU. The minimum stormwater utility fees for other developed property shall be equal the Base Rate for single-family residential property.

14.04.050 Real Property in an Undeveloped Condition. In accordance with the policy established in Section 14.04.030, the stormwater utility fee shall be determined by the amount of impervious area contained on each parcel of real property. Therefore, no stormwater utility fee shall be imposed upon those parcels of real property within the boundaries of the Utility that are in an entirely undeveloped state and are determined by the Public Works Director or his/her designee to not make use of the services of the Utility.

14.04.060 . Initial Stormwater Utility Fee. In accordance with the rate structure established herein, there is hereby levied upon all developed real property within the boundaries of the Utility the following Stormwater Utility Fee:

1) For all single-family residences and detached single-family condominiums, the monthly Stormwater Utility Fee shall be the fee established and approved by separate ordinance for one Equivalent Residential Unit (ERU).

2) For two-, three- and four-family residential property, the monthly stormwater utility fee shall be the fee established and approved by separate ordinance for 1.75 ERUs.

3) For all other developed property including commercial, institutional, manufacturing, multi-family greater than four (4), attached condominiums of greater than four (4) units and mobile home parks within the boundaries of the Utility, except as specified under Section 14.04.070, the monthly services charge shall be the product of the fee adopted by separate ordinance and the number of ERUs determined by the Utility to be contained in such parcel pursuant to Section 14.04.040.

14.04.070 . Property Exempt From the Stormwater Utility Fee. The following special categories of property are exempt from the Stormwater Utility Fee:

4) City street rights-of-way, because the City Council has determined that the value of the in-kind service provided by the rights-of-way in collecting and transporting storm and surface water from adjacent properties is equal to or exceeds the Stormwater Utility Fee that would be charged by the Utility.[[This additional language will be moved to the findings section, and the language may be changed before the ordinance is adopted]]

5) State of Washington highway rights-of-way and Snohomish County road rights-of way so long as the State of Washington and Snohomish County shall agree to maintain, construct and improve all drainage facilities contained within such rights-of-way as

required by the Utility in conformance with all Utility standards for maintenance, construction and improvement hereafter established by the Utility and so far as such maintenance, construction and improvements shall be achieved at no cost to the Utility or to the City.

6) Real property within the boundaries of the Utility that are in an entirely undeveloped state and are deemed by the Public Works Director or his/her designee not to make use of the services of the Utility.

14.04.080 . Credits Available against Stormwater Utility Fees.1) The Utility may grant a credit of twenty-five (25) percent for private, on-site control

facilities that benefit the overall stormwater system.

To be eligible for the credit, the property owner or homeowners association (for common area) must demonstrate that the on-site control system exists, was installed per the City and Department of Ecology’s standards at the time of development, and the system has been maintained by the property owner or homeowner’s association in accordance with City and Department of Ecology standards at the time of development.

A Technical Information Report prepared by a licensed professional engineer shall be provided to document the engineering design of the facility. Infiltration facilities that serve portions of a site, such as rooftops only, may receive a pro rata discount based on the drainage area being infiltrated. The eligibility of the credit shall be reviewed and the facility inspected by the City on an annual basis to ensure proper maintenance of said private facilities. The Public Works Director shall determine the forms, requirements and process for determining eligibility. If a homeowners association is granted the discount it will be applied to all residential properties listed by the homeowners association as participating properties.

2) The Utility may grant a credit of seventy (70) percent for condition and performance that is compliant with the most recent City and Department of Ecology Best Management Practices (BMP) standards for on-site control facilities that have the capacity to fully contain and infiltrate on the parcel the runoff from the 100-year, 7-day storm event. The facility must be properly maintained to achieve performance standards by the property owner or homeowner’s association. The eligibility of the credit shall be reviewed and the facility inspected on an annual basis to ensure proper maintenance of said private facilities. The Public Works Director shall determine the forms, requirements and process for determining eligibility.

3) The Utility may grant public schools twenty-five (25) percent additional credit upon receipt of an acceptable curriculum showing how the school district provides education regarding stormwater issues. Each site owned and operated by the school district in support of education shall be eligible for this credit in addition to any site-specific credits also available for individual sites. The Public Works Director shall determine the forms, requirements and process for determining eligibility.

4) Low income senior citizens may apply for a 50% discount to their stormwater utility fee. “Low income senior citizen” means persons 62 years of age or older, on or before

January 31st of the year of the filing for the discount. Low income is based on 125 percent of the federal poverty guidelines.

5) Credits shall not be added together. The maximum total credit is 70%.

14.04.090 . Billing.1) The charges imposed by this chapter shall be billed in conjunction with the property

owner’s or user’s customary water and sanitary sewer bill issued by the City and for the purposes of billing only the city shall be deemed to have a consolidated sewer, water and stormwater utility and therefore the City may allocate receipts on billings first to stormwater and sewer to preserve its right to shut off water. For developed properties subject to the stormwater utility fee that do not otherwise receive a water or sanitary sewer bill from the City of Sultan, the stormwater utility fee may be billed at intervals set by the Public Works Director, but not less than annually.

2) Delinquent accounts shall be determined and administered in a manner consistent with that provided for water and sewer.

3) Billings may be made in the name of tenant or other occupants of the premises that are provided Stormwater Utility services at the mailing address of the property. Such billings shall not relieve the owner of the property from liability for the payment of the charges for furnishing of such stormwater services nor in any way affect the lien rights of the City against the premises to which said stormwater services are furnished. Failure to receive mail properly addressed to the mailing address provided above shall not be a valid defense for failure to pay the delinquent charges and penalties. Any change in the mailing address provided above must be properly filed in writing with the Office of the City Clerk before it will become effective.

4) In the event the City must bring legal action to collect stormwater utility fees and/or penalties, the City, in addition to such charges and penalties, shall recover its attorney’s fees and other costs incurred in connection with such collection.

14.04.100 . Rate/Charge Adjustment and Appeals:6) Any person billed a stormwater fee under this chapter may file an “Adjustment Request”

with the Public Works Director within sixty (60) days of the date of the billing statement. Submittal of an Adjustment Request shall be made on forms provided by the Director and shall not extend the period of payment for the stormwater fee.

7) Upon timely receipt of an Adjustment Request, the Public Works Director or his/her designee will review the request and make a preliminary determination after a review of Utility records or a site visit.

8) The Public Works Director may grant a rate adjustment only in accordance with this chapter and only upon a finding that one or more of the following conditions exist:

a. The parcel charged is not within the Sultan city limits.

b. The impervious surface area of the parcel would change the number of Equivalent Residential Units used in determining the stormwater fee.

c. The parcel is in an undeveloped condition and not paved, graveled or covered with any impervious surface.

d. The parcel is not single-family and contains a constructed or natural on-site surface water control facility that is determined by the stormwater engineer or inspector to be maintained at optimum operating condition and improves water quality at the outlet to meet State standards for stormwater discharge.

e. The rate charged was otherwise not calculated in accordance with the terms of this chapter.

9) If the property owner does not agree with the preliminary determination, the property owner may submit further evidence supporting the calculation prepared by a licensed surveyor, engineer or professional. This may include an approved drainage plan, a detailed site plan or other information required by the Public Works Director.

10) The property owner shall have the burden of proving by a preponderance of the evidence that the desired Adjustment Request meets the requirements of this section.

11) When granted, an Adjustment Request shall only apply to the Stormwater utility fee bills subsequently issued. If an Adjustment Request is granted which reduces the rate charge for the current year, the applicant shall be refunded the amount overpaid in the current calendar year only. If the Public Works Director finds that a rate charge bill has been undercharged, then at the Director’s discretion, either an amended bill shall be issued which reflects the increase in the stormwater utility fee, or the undercharged amount shall be added to the next bill. Any amended bill shall be due and payable under the provisions set forth in this chapter.

12) Decisions on Adjustment Requests shall be made by the Public Works Director based on information submitted by the applicant in the Adjustment Request, the utility’s records and a site visit. Decisions shall be made within thirty (30) days of the date of the Adjustment Request, except when additional information is requested or needed by the Public Works Director. The applicant shall be notified in writing of the Public Works Director’s decision.

13) Decisions of the Public Works Director on Adjustment Requests shall be final unless appealed to the Snohomish County Superior Court within thirty (30) days of the final decision on the Adjustment Request.

Section 3. Effective Date. This ordinance shall become effective from and after its passage and the expiration of five (5) days after publication as provided by law, except the provisions of Section 2 relating to Initial Stormwater Utility Fee Rates, SMC 14.04.060 shall be effective on July 1, 2008.

Section 14. Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality thereof shall not affect the validity or constitutionality of any other section, subsection, sentence, clause, phrase or word of this ordinance.

ADOPTED by the City Council and APPROVED by the Mayor this ___day of _____, 2007.

CITY OF SULTAN

By: _____________________________Carolyn Eslick, Mayor

ATTEST:

By: ________________________________Laura Koenig, City Clerk

APPROVED AS TO FORM:

By ________________________________Kathy Hardy, City Attorney

Date of Publication: __ day of _____, 2008

Effective Date: __ day of _____, 2008

Attachment BStorm Water Utility Applicable Law

The Growth Management Act requires, as part of the mandatory land use element, that city and county comprehensive plans, “where applicable,” must “review drainage, flooding and storm water runoff in the area … and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state, including Puget Sound or waters entering Puget Sound.” RCW 36.70A.070(1).

RCW 36.70A.070(1) describes the mandatory land use element in city and county comprehensive plans. The statute provides:

… Where applicable, the land use element shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state, including Puget Sound or waters entering Puget Sound.

Ordinance 913-06, enacted February 25, 2006, adopted the City of Sultan’s 2002 Surface Water Quality Management Plan (Stormwater Plan).

The Stormwater Plan was developed by consultants, reviewed with public hearings, and submitted to the Department of Ecology (DOE) for approval in 2002. DOE approved the Stormwater Plan on August 18, 2003.

Both DOE and the City’s consultants recommended that the City create a stormwater utility to ensure a stable source of funding for ongoing maintenance and improvements. Consequently, creation of a stormwater utility has been on the City’s work plan for several years, and, according to information provided by the City at the Hearing on the Merits, is anticipated to be adopted in the near future.

The Stormwater Utility has not yet been established. The Board notes the City’s progress toward creating the Utility and is not persuaded that the City’s action in adopting the Stormwater Plan before creation of the Utility was clearly erroneous.

The Growth Management Hearings Board plainly has jurisdiction with respect to mandatory elements of a city’s land use plan. The Board notes that the Stormwater Plan itself describes the GMA requirement to incorporate the stormwater program into the City’s comprehensive plan and development regulations.

DOE, having reviewed and approved Sultan’s Stormwater Plan in 2002-2003, recommended that the City create a Stormwater Utility to ensure a stable source

of funding for surface water management. The City’s consultants made the same recommendation.


ITEM NO: A-3

DATE: July 10, 2008

SUBJECT: Adopt a Stormwater Utility Fee


ISSUE:

The issue before the City Council is to direct staff to prepare an ordinance to adopt a Stormwater Utility Fee.


1. Discuss the proposed fee alternatives

2. Select a preferred alternative

3. Direct Staff to prepare an ordinance for First Reading to adopt a Stormwater Utility Fee

If necessary, Ordinance No. 985-08 can be amended to incorporate the Council’s decision prior to final action to adopt the Stormwater Utility on July 24, 2008.

SUMMARY:

Over the last twelve months, the City Council and community have discussed a number of alternative base rates for the stormwater utility. This agenda cover summarizes four alternative base rates and requests the City Council select a preferred alternative.

The base rate is made up of three components:

4. Calculation of Equivalent Residential Units (ERU). There are approximately 2,639 ERUs in the Utility.

5. Adopted level-of-service

6. Annual budget needed to accomplish stormwater functions (i.e. levels-of-service) within the City including maintenance, operations, capital improvements, public outreach, etc.

The following table summarizes the four proposed alternatives. Attachments to this agenda cover provide additional budget details:

Alternative 1(Attachment A)

Alternative 2(Attachment B)

Alternative 3(Attachment C)

Alternative 4(Attachment D)

Base Rate $5.75-6.60ERU sliding scaleNo annual adjustmentReassess in 2012

$5.75-$6.60 in Yr. 1$10.50-$11.50 in Yr. 5ERU sliding scaleANNUAL ADJUSTReassess in 2012

$12.35 - $13.23ERU sliding scaleNo annual adjust.Reassess in 2012

$12.35/ ERUBASED ON ERUno annual adjust.Reassess in 2012

Employees .3 FTE$24,000

.3 FTE-1 FTE$24K-100K

1 FTE$100,000

3 FTE$209K-$248K

Credits No Yes Yes Yes

Cost share with Street Budget

Yes No No No

Maintenance / Operations

$80,0001/3 catch basinsNo HOA pondsMonthly street sweep

$80K-$122K1/3 catch basinsHOA ponds yr. 5Mo. street sweep

$121,800All catch basinsHOA pondsMo. street sweep

$320-$340All catch basinsHOA pondsMo. street sweepInspections

Capital Equipment

None. Services through vendors

Capital equip. Share w/other budget

$45,000. Share w/other budget

$62K yr 1 (start-up costs)$21K yr 2-yr. 5

Capital Improvements

$20,000 $20,000-$50000 over 5 years

$50,000 $50,000

Annual Budget $100,000 $100k-$182k $214,201 $530K-$445k

Pros and Cons Pros Low fees ($69/yr

residential - $79/yr commercial)

Establishes utility Begins maint. programCons Fund not fully supported Deferred maint. continued

Pros Fees start low and

gradually increase Establishes utility Begins maint. programCons Fund not fully supported Deferred maint

continued in first 4 years

Pros Fees support utility Improved maint. program Fix flooding/drainageConsHigher fees ($148.20/yr residential - $159/yr commercial.

Pros Fees support utility Full maintenance

programCons Highest fees

($148.20/yr residential - $6000/yr commercial.

DISCUSSION:

Establishing the Utility

The proposed resolution does not establish the Stormwater Utility (Utility). The Utility is established by separate Ordinance (Ordinance No. 985-08) as described in Agenda Item No. 2 in the Council’s July 10, 2008 Agenda Packet.

There are a number of state statutes that pertain either directly or indirectly to the City’s authority to form a surface water utility. One of the more broad based statutes pertains to municipal utilities in general and states that a code city may provide utility service within and outside its city limits and this includes the exercise of all powers to the extent authorized by law (RCW 35A.80.010).

Proposed Ordinance

The proposed ordinance will establish the “base rate” in accordance with Ordinance No. 985-08. The base rate is made up of three components:

1. Calculation of Equivalent Residential Units (ERU).

2. Levels-of-service

3. Annual budget needed to accomplish stormwater functions (i.e. levels-of-service) within the City including maintenance, operations, capital improvements, public outreach, etc.

Equivalent Residential Units

ERU's are used for the purpose of calculating the stormwater user's rate. An ERU represents the average square footage of impervious surface of a detached single-family residential property and is applied to commercial properties to calculate the commercial rate.

The ERU is established by reviewing a representative sample of recorded date, maps, surveys or field measurement to obtain the average impervious area for a single-family lot. Non-residential properties are converted into ERUs based on the amount of impervious area on the property.

For the City of Sultan, the calculated ERU is 4,519 square feet. Of the 14 jurisdictions examined in the phone survey for the study, Sultan's ERU was the second highest. This is largely due to the rural nature of residential properties and the number of barns and outbuildings.

The total number of ERUs in the City are:

Multifamily Residential 1-4 plexes 75Commercial Properties 920Residential Properties 1,246Schools 398 Total 2,639

For purposes of determining the Stormwater Utility Fee, all properties in the City are classified into one of the following classes:

Single-family detached residential property = 1 ERU

Two-, three- and four-family residential property = 1.75 ERU

Commercial and Other developed property including multi-family (5-99 units) = base rate multiplied by the numerical factor obtained by dividing the total impervious surface area (square feet) of the property by one ERU.

Levels-of-Service

Costs to operate a stormwater utility are broken down into two categories:

1. On-going costs or costs of conducting Operations and Maintenance, and for associated administrative costs for the stormwater system

2. One-time costs or capital improvements.

Annual Budget

The annual budget is based on the level-of-service adopted by the City Council. Each of the proposed alternatives offers a different level-of-service. The more services required or demanded, the higher the budget and corresponding base rate.

The City is currently responsible for maintaining 3 detention ponds, 15 infiltration trenches, 592 inlets and 5 outlets.

Base Rate

The annual cost for operations, maintenance, and capital improvements yields the total annual amount that must be charged to satisfy the needs of the utility.

The proposed fees are based on Equivalent Residential Units (ERUs) using the 4,513 square feet as the basis.ANALYSIS:

The nature of stormwater management has changed dramatically since the first stormwater utilities were formed. Historically, stormwater management (drainage) programs were narrowly defined and focused generally on water quantity control (flooding) issues. Local environmental quality concerns played a role in the development of some stormwater utilities (perhaps most notably in Bellevue, Washington), but the predominant issues in most communities were flooding and erosion problems.

Chronically limited funding for capital investments, operation and maintenance of stormwater management systems, combined with recent emphasis placed on stormwater quality management by the emerging Federal extension of NPDES permitting to stormwater discharges, dictates that communities secure stable funding and develop new and innovative financing strategies for their stormwater management programs.

Enterprise Orientation

Most stormwater utilities are designed to provide the majority of a community's stormwater funding thereby offsetting other funding sources such as the General Fund. FSA's 1997 Stormwater Utility Survey5 indicated that utility revenues provided 80% of the operating budget and 75% of the capital construction program funding within the surveyed communities.

Sustainable Revenues

Revenues generated by stormwater utilities gradually increase as communities grow with periodic revenue jumps related to rate increases.

The average monthly stormwater utility rate reported in the Surface Water Utility Rate Study - 2008 Residential Rates (Attachment E) for the 45 respondents varied from $16.92 (Duvall) to $1.75 (Spokane) per billing unit, and averaged $6.58 per unit, which equated to an average revenue of about $78.96 per year.

Comparison of utility rates between indicates that 17 utilities plan to increase their rates with increases ranging from 6% (Mount Lake Terrace) to 203% (Snohomish Co).

Rate Methodologies

There is a general continuity in stormwater utility service rate methodologies -- no single method is used in all applications -- nor does one appear to be suitable or appropriate. The most commonly used stormwater rate methodology is based on the amount of impervious area.

Exemptions

5 http://www.florida-stormwater.org/manual/chapter1/1-2.html

Not all properties are charged for stormwater utility services. Only 10% of the participants in the 2001 Stormwater Utility Survey did not allow any exemptions. Most utilities grant exemptions to certain types of properties based upon their ownership, level of development, quality of runoff, extent of community use and other considerations. The most common exemptions are for streets/highways (76%), undeveloped property (76%), railroad properties (56%), agricultural areas (52%), and parks (36%). Many utilities also exempt government properties (26%), and those properties related to school districts, special districts, and similar public functions.

Credits

Many utilities, 48% of the utilities participating in the 2001 Stormwater Utility Survey, recognize runoff attenuation and water quantity treatment benefits from certain development practices on private properties and give the property owners credits against their utility service charges. The 2001 Stormwater Utility Survey found that possible credits ranged from 5% to 100% of the bill with an average reduction for properties receiving credits of about 48%.

Billing & Collection of Utility Fees

Adding the stormwater utility bill to existing monthly bills for other utility services provided is the most common billing process, used by over 70% of stormwater utilities, because it reduces billing and collection costs. About 21% of the utilities add the stormwater utility charges to the annual property tax bill, with the remaining 8% of the utilities opting for other methods.

Revenue capacity depends primarily on whether undeveloped as well as developed properties are charged, and whether the community charges itself for streets and other public properties. Cities with more mature stormwater programs have higher service charges than those just beginning to develop their programs.

ALTERNATIVES:

1. Select a preferred alternative and direct staff to prepare a fee resolution.2. Do not select a preferred alternative and direct staff to areas of concern.3. Do not select a preferred alternative and postpone making a final decision until a

later date.

RECOMMENDED ACTION:

1. Discuss the proposed fee alternatives

2. Select a preferred alternative

3. Direct Staff to prepare a resolution to adopt a Stormwater Utility Fee

ATTACHMENTS

Attachment A – Proposed Budget Alternative 1Attachment B – Proposed Budget Alternative 2Attachment C – Proposed Budget Alternative 3Attachment D – Proposed Budget Alternative 4Attachment E – Public OutreachAttachment F - Surfacewater Utility Rate Survey 2008 Residential Rates

Attachment E

PUBLIC OUTREACH

The City has endeavored to keep the community informed and involved in the discussion to establish a stormwater utility.

The City established a Small Work Group comprised of a city resident, business owner, and Planning Board member to review alternatives and make a recommendation to the Planning Board.

The Small Work Group met on February 20, March 6, April 17, and May 1.

The City held an open house on March 13, 2007. The Open House included information on the proposed Stormwater Utility. Notice of the Open House was mailed to all residents and businesses within the Sultan zip code, including residents outside the City limits.

On March 20, 2007 the Planning Board received an update from the Small Work Group – the Board reviewed the need to form a stormwater utility and the survey of stormwater utilities across the state.

On April 12, 2007 the City Council received an update from the Small Work Group – the Council reviewed the need to form a stormwater utility and the survey of stormwater utilities across the state, and key policy questions.

A second Open House was held on May 15, 2007

On May 1, 2007 the Planning Board reviewed the calculations for the ERU, draft Stormwater Utility Report, and budget, and directed staff to areas of concern.

On May 17, the City Council subcommittee received a similar update.

Notice of the proposed formation of the Stormwater Utility was included in the June and July utility billing statements.

On May 24, the full Council reviewed the calculations for the ERU, draft Stormwater Utility Report, and budget.

On June 26, the Planning Board discussed credits for private facilities, public schools, non-profit organizations, and senior citizens and low-income residents. The Board also reviewed the draft ordinance and credit manual, and directed staff to set the Public Hearing for July 17, 2007.

July 23, meeting with the Sultan School Board to discuss the proposed utility, calculation of equivalent residential units, and grass as a pervious/impervious surface.

August 9, 2007 Public Hearing

On November 30, 2007, the City issued a SEPA determination of non-significance on the proposed stormwater utility. The SEPA comment period closed December 14, 2007.

City staff notified commercial property owners by letter on December 5, 2007 about the proposed utility.

November and December 2007 – Equivalent Residential Units calculated for each commercial, industrial and retail property

January 24, 2008 Public Hearing.

February 28, 2008 continued Public Hearing.

March 10, 2008 Stormwater Stakeholder’s Group Formed. Meetings on March 10, 2008, March 17, 2008, April 7, 2008 and April 21, 2008.

May 29, 2008 presentation by Stormwater Stakeholder’s Group.

May 29, 2008 Council holds a public hearing on June 12, 2008.

The schedule to review and adopt a Stormwater Utility is as follows:

City Council action to adopt ordinance and amend fee schedule – July 2008

Public outreach and implementation – August and September.

Implementation - October 1, 2008


ITEM NO: A-4

DATE: July 10, 2008

SUBJECT: First Reading Ordinance No. 988-08 - Cable Franchise Agreement with Comcast


ISSUE:

The issue before the City Council is to have First Reading of Ordinance No. 988-08 (Attachment A) granting a non-exclusive franchise to Comcast to use City streets and public rights-of-way for operating and maintaining a cable communications system.

The City Council held the required public hearing on June 26, 2008. There was no public testamony regarding the proposed franchise with Comcast.


Have First Reading of Ordinance No. 988-08 granting a non-exclusive cable television franchise to Comcast of California, Colorado, Washington, Inc. to construct, operate and maintain a cable communications system in the City of Sultan, Washinton, and setting forth conditions accompanying the grant of franchise.

SUMMARY:The original cable television franchise agreement with Broadview Television (d/b/a Viacom now Comcast) expired on August 8, 2004. The Cable TV ordinance is codified in Section 5.28 of Sultan Municipal Code.

As required by federal law, the City of Sultan and its East County Cable Consortium partners (Snohomish, Monroe, and Lake Stevens) formally began the cable franchise renewal process in April 2004.

The City has reviewed Comcast’s performance under the prior franchise and the quality of service during the prior franchise term and has determined that Comcast’s plan for operating and maintaining its Cable System meets the statute requirements.

The proposed franchise will keep specific issues negotiated between the City and Comcast, such as competitive equity in the Franchise Agreement.

General policies for managing cable systems (i.e. regulations) will be in Chapter 5.28 of the Sultan Municipal Code.

The City Council is considering Ordinance No. 987-08 to repeal Chapter 5.28 (CATV Systems) adopted by Ordinance No. 502 in 1988 and adopt a new Chapter (Cable System Regulations), included in this report as Attachment B.

Cable TV Franchise Agreement

The City is limited under the Cable Communications Policy Act on the types of issues it can negotiate:

Basic service tier rates according to Federal Communications Commission (FCC) benchmarks, including senior-citizen discounts. (Note: Basic service tier rates are currently below FCC benchmarks, and senior citizen discounts are currently offered.)

Signal quality conformance to FCC standards.

Customer service standards.

Agreed-upon or voluntarily contracted for broad categories of video programming.

Availability of services to specific areas

Present and future community needs such as High Definition television, Institutional Networks, etc.

Provision of equipment, facilities, and channels for PEG programming.

Applicable Laws

The Cable Communications Policy Act of 1984 establishes "an orderly process for franchise renewal" designated to protect operators from "unfair denials or renewal" (Section 601(5); 47. U.S.C. 521 (5)).

The Cable Act does not guarantee the operator renewal. A city that follows Cable Act procedures and develops and appropriate record may deny renewal if the operator's past performance has been unsatisfactory, or if the operator is unwilling (or unable) to promise to provide the services, facilities and equipment necessary to meet the future cable-related "needs and interests" of the community. (Section 626; 47 U.S.C. s 546.)

As part of the renewal process, the City of Sultan and consortium members evaluated the following areas:

Fulfillment of the terms of the existing cable franchise agreement

Quality of cable service provided as it pertains to current community needs

Whether the franchisee has the financial, legal and technical ability to fulfill the proposed terms of the new agreement, and

Whether the proposed agreement is reasonable to meet future cable-related community needs and interests, and the cost of meeting such needs and interests.

Proposed Changes The negotiating environment has been effected by potential Federal and State legislation and the Consortium’s previous compromise points have yielded little from Comcast.

Comcast has communicated concerns about the competitive changes within the cable industry by both satellite and telephone cable services and an equal business environment. These concerns are reflected in the Competitive Equity section of the Franchise Agreement (Attachment A – Section 2.5, page 6)

The consortium is concerned about the impact of bundling of cable, telephone, and internet services on franchise fees, authorizations for extension of the agreement, cable services to municipal buildings, low income senior discounts, and other issues.

Despite a rapidly changing political climate at the federal and state level, the Consortium negotiated the following changes to recoup the City’s investment in its rights-of-way and benefits to Comcast customers:

Section 1.21Gross Revenues

Gross revenues are used to calculate the franchise fee. Comcast was looking reduce its franchise fees. Franchise fees are limited by federal law through the Federal Communications Commission (FCC) to video programming. There is no room within these limits to include revenues from Internet service (cable modum) and telepony. Comcast negotiated a GAAP “qualifier” on the gross revenues definition.Consortium maintained franchise fees as a part of the definition of gross revenues

Section 2.3Term

Comcast requested an automatic renewal clause. The Consortium is concerned about a long-term agreement in a rapidly changing market plan. The parties agreed on a 5-year Franchise with no extension provision.

Section 2.5Competitive Equity

New section proposed by Comcast to limit their risk from new providers such as Verizon entering the market place under more favorable terms. Consortium agreed to a level playing field for providers.

Section 3.1Franchise Fee

Franchise fee remains at 5% of Gross Revenues

Section 3.6Audits

Requires Comcast to pay up to $15,000 for the cost of an audit, if an underpayment of franchise fees of 5% or more is determined.

Secdtion 3.15Subscribers' Bills

Comcast cannot unlawfully evade or reduce franchise fee payments due to discounted bundling. (Cable/Phone/Internet).

Section 4.2Low Income Discounts

Changes current discount from 8.5% of the normal charge for basic service to 30% for basic service. Increased age limit from 62 years to 65 years. Eliminate 50% discount for installation charge. Grandfathers existing customers. Any discount program is voluntary.

Section 5Financial and Insurance Req.

Increases insurance requirements from flat $1M and expands the type of insurance required. General liability - $2M, Excess liability $5M$25K performance bond

Section 9Access Channel

Access channel shared by consortiumReduces capital contribution from $15K. Capital advance for equipment $2,994. Recoup via .25/month/subscriber fee.

Section 10.14Underground Cable

Expands circumstances for undergrounding. Accept Comcast's cost sharing provisions on public projects. If the City is doing the project, then the City will pay for the trenching.

Section 13.2Free Cable Service

Free voluntary basic and expanded basic cable service to city buildings (except jails), schools, libraries, and fire and police stations as part of the franchise.

Section 14.2 Material Franchise Violations

Specific material violations enumerated.

BACKGROUND:

The original cable television franchise agreement with Comcast (Ordinance No. 502 - Attachment A) expired on August 8, 2004. The Cable TV ordinance is codified in Section 5.28 of Sultan Municipal Code.

As required by federal law, the City of Sultan and its East County Cable Consortium partners (Snohomish, Monroe, and Lake Stevens) formally began the cable franchise renewal process in April 2004. On June 11, 2004, Comcast Cable Communication responded with a proposal.

Based on information gathered by a 2004 regional needs survey, the Consortium issued a request for proposals for a consultant to negotiate with Comcast on behalf of the Consortium.

Since then, the Consortium hired three firms to provide professional services to renew the franchise agreement and ordinance. The owner of the first firm hired by the Consortium passed away and the services of the second firm were not acceptable to the Consortium.

River Oak Communications was retained by the Consortium in February 2006. Negotiations were finalized in January 2008 and Comcast agreed to the terms of the proposed franchise agreement in May 2008.

The City Council held the required public hearing on June 26, 2008. There was no public testamony regarding the proposed franchise with Comcast.

FISCAL IMPACT:

In return for allowing the cable operator to utilize public right-of-way and provide cable service to citizens, the community receives a variety of benefits.

Public, educational and governmental (PEG) organizations and individuals can gain access to broadcast facilities and equipment and broadcast information and messages to subscribers.

The current PEG programming available for viewing by cable customers in the Sultan area includes static information about public meetings, service clubs, volunteer opportunities, hours of service, and job opportunities. The City has added video of regional topics in the last year.

In addition, the city collects franchise fees from Comcast currently totaling more than $34,500 per year and $42,000 in cable utility tax

ANALYSIS:

The City of Sultan has been working with other members of the consortium for over 4 years to complete the cable television franchise negotiations with Comcast. The City has assigned a number of different staff people to the task due to staffing changes and work load. Sultan is depending on the expertise of its consortium partners and professional consultant, Tom Duchen to negotiate the best possible terms.

The cities of Monroe and Snohomish have held their public hearings and are adopting the franchise agreement and corresponding regulations.

The term of the proposed franchise is purposefully short in order to allow the City and Comcast an opportunity to renegotiate the agreement if the market place changes significantly. If the market place changes or the Council determines that the agreement is lacking is some area, there will be an opportunity to revisit the franchise agreement as early as 2010 under the “informal” negotiation process.

An important aspect of future cable negotiatioons will be to identify future uses of a cable communications system including the entire spectrum of feasable communications services such as video, data and voice. The technology convergence in the early 1990s that hit telephony, cable television, video, music programmers and the computer industry is being built on digital transmission on strands of fiber optic glass, gradually replacing an infrastructure that was built on copper wires.

RECOMMENDED ACTION:

Have First Reading of Ordinance No. 988-08 granting a non-exclusive cable television franchise to Comcast of California, Colorado, Washington, Inc. to construct, operate and maintain a cable communications system in the City of Sultan, Washinton, and setting forth conditions accompanying the grant of franchise.

ATTACHMENTS:

A. Proposed City of Sultan Cable Franchise with ComcastB. Proposed Cable System Regulations - replaces Ordinance No. 503

ATTACHMENT AC I T Y O F S U L T A N

Sultan, Washington

ORDINANCE NO. 988-08

AN ORDINANCE OF THE CITY OF SULTAN, WASHINGTON GRANTING A NON-EXCLUSIVE CABLE TELEVISION FRANCHISE TO COMCAST OF CALIFORNIA, COLORADO, WASHINGTON I, INC. TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM IN THE CITY OF SULTAN, WASHINTON, AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE.

This Cable Franchise (“Franchise”) is entered into in Sultan, Washington, this ____ day of __________, 2008, by and between the City of Sultan, Washington, a municipal corporation, (hereinafter “City”) and Comcast of California/Colorado/Washington I, Inc. (hereinafter “Grantee”). The City and Grantee are sometimes referred to hereinafter collectively as the “parties.”

WHEREAS, the City has reviewed Grantee’s performance under the prior franchise and the quality of service during the prior franchise term, has identified the future cable-related needs and interests of the City and its citizens, and has determined that Grantee’s plans for operating and maintaining its Cable System are adequate; and

WHEREAS, the public has had adequate notice and opportunity to comment on this Franchise during a public proceeding; and

WHEREAS, the City has a legitimate and necessary regulatory role in ensuring the availability of Cable Service, the technical capability and reliability of a cable system in the Franchise Area, and quality customer service; and

WHEREAS, diversity in Cable Service is an important policy goal and the Grantee’s Cable System should offer a broad range of programming services; and

WHEREAS, flexibility to respond to changes in Subscriber interests within the Cable Service market is important; and

WHEREAS, the City is authorized by applicable law to grant one or more nonexclusive franchises to construct, operate and maintain a cable system within the boundaries of the City.

NOW, THEREFORE, in consideration of the mutual promises made herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Grantee do hereby agree as follows:

Section 1. Definitions

For the purposes of this Franchise, the following terms, phrases, words and their derivations shall have the meanings given herein where capitalized. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words otherwise not defined shall be given their common and ordinary meaning. The word “shall” is always mandatory and not merely directory.

1.1 “Access” includes Educational and Governmental Access and means the availability for noncommercial use by various educational and governmental institutions and organizations in the community, including the City and its designees, of a particular Channel on the Cable System to receive and distribute Video Programming to Subscribers, including, but not limited to:

a. “Educational Access” means Access where Schools are the primary users having editorial control over programming and services.

b. “Governmental Access” means Access where governmental institutions or their designees are the primary users having editorial control over programming and services.

1.2 “Access Channel” means Channel capacity designated for Educational or Governmental Access use, or otherwise made available to facilitate Access programming.

1.3 “Affiliate” means any entity that owns or controls the Grantee, or is owned or controlled by the Grantee, or otherwise has ownership or control in common with the Grantee.

1.4 “Bad Debt” means amounts lawfully owed by a Subscriber and accrued as revenues on the books of the Grantee but not collected after reasonable efforts by the Grantee.

1.5 “Basic Service” or “Basic Service Tier” means signals of local television broadcast stations, the Access Channel and any additional Video Programming signals or service added to the Basic Service Tier by the Grantee.

1.6 “Cable Act” means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, and any amendments thereto.

1.7 “Cable Operator” means any Person or group of Persons who provides Cable Service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

1.8 “Cable Service” means the transmission of Video Programming, or other programming service, to Subscribers and the Subscriber interaction, if any, which is required for the selection or use of such Video Programming or other programming service.

1.9 “Cable System” or “System” means the Grantee’s Facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes Video Programming and which is provided to multiple Subscribers within a community.

1.10 “Channel” means a portion of the spectrum which is used in a cable system and which is capable of delivering a television Channel, as television Channel is defined by federal regulations.

1.11 “City” means the City of Sultan, Washington and all territory within its existing and future corporate limits.

1.12 “Converter” means an electronic device that converts transmitted signals to a frequency that permits their reception on an ordinary television receiver.

1.13 “Demarcation Point” means the physical point at which the Cable System enters the Subscriber’s home or building.

1.14 “Designated Access Provider” means the entity or entities designated by the City to manage or co-manage Access programming and facilities. The City may be a Designated Access Provider.

1.15 “Dwelling Unit” means any building, or portion thereof, that has independent living facilities, including provisions for cooking, sanitation and sleeping, and is designed for residential occupancy. Buildings with more than one set of facilities for cooking are multiple unit buildings unless the additional facilities are clearly accessory.

1.16 “Expanded Basic Service” means cable programming services not included in the Basic Service and excluding, for example, premium or Pay-Per-View Services.

1.17 “Facility” or “Facilities” means the component parts of the Cable System whether owned, rented, leased or otherwise controlled by Grantee including, but not limited to, conduit, pedestals, coaxial cable, fiber-optic cable, amplifiers, taps, power supplies and electronics located in the Rights-of-Way.

1.18 “FCC” means the Federal Communications Commission or its lawful successor.

1.19 “Franchise” means the non-exclusive right and authority to construct, maintain and operate a Cable System through use of the Rights-of-Way in the Franchise Area pursuant to this contractual agreement executed by the City and Grantee.

1.20 “Franchise Area” means the area within the jurisdictional boundaries of the City, including any areas annexed by the City during the term of this Franchise.

1.21 “Gross Revenues” means all revenues or compensation received directly or indirectly by the Grantee or its Affiliates, arising from or in connection with the provision of Cable Services in the Franchise Area as calculated according to “Generally Accepted Accounting Principles” (GAAP).

This definition shall be construed so as to include all Gross Revenues to the maximum extent permitted by federal and State law, except to the extent specifically excluded in this section, and encompasses revenues that may develop in the future, whether or not anticipated. If a change in State or federal law or a decision of the FCC or a court of competent jurisdiction modifies the categories of revenue available to the City for franchise fees beyond those permitted under this definition as of the effective date, that change shall automatically be included in the definition of Gross Revenues under this Franchise, provided that the City imposes the same requirement upon any other similarly situated multichannel video provider over which the City has jurisdiction and authority to impose such fees.

Gross Revenues do not include Bad Debt but shall include any recoveries of Bad Debt. Gross Revenues also do not include the Access advance and monthly Capital Contributions referenced in subsections 9.4 and 9.5 or any sales, excise or other taxes collected by Grantee on behalf of a federal, State, City or other governmental unit. The franchise fees are not such a tax and are therefore included in Gross Revenues.

1.22 “Headend” means a facility for signal reception and dissemination on the Cable System, including all related equipment.

1.23 “Leased Access Channel” means a Channel or portion of a Channel made available by Grantee for programming by others for a fee.

1.24 “Person” means any individual, sole proprietorship, partnership, association, corporation or other form of organization or entity.

1.25 “Right-of-Way” or “Rights-of-Way” means all public streets, roads, avenues, alleys and highways in the City.

1.26 “School” means any public educational institution accredited by the State of Washington, including primary and secondary Schools (K-12).

1.27 “Standard Installation” means a one hundred twenty-five (125) foot aerial drop or sixty (60) feet of underground trench connecting to the exterior Demarcation Point for Subscribers.

1.28 “State” means the State of Washington.

1.29 “Subscriber” means any Person(s) who lawfully elects to receive Cable Services provided by the Grantee by means of the Cable System.

1.30 “Tier” means a category of Cable Services provided by the Grantee for which a separate rate is charged.

1.31 “Video Programming” means programming provided by, or generally considered comparable to programming provided by, cable programmers or a television broadcast station.

Section 2. Grant of Franchise

2.1 Grant

A. The City hereby grants to the Grantee a nonexclusive authorization to make reasonable and lawful use of the Right-of-Way within the Franchise Area to construct, operate, maintain, reconstruct, repair and upgrade a Cable System for the purpose of providing Cable Services. Such grant is subject to the terms and conditions set forth in this Franchise and applicable law. This Franchise shall constitute both a right and an obligation to provide Cable Services and to fulfill the obligations set forth in the provisions of this Franchise.

B. In the event of a conflict between the provisions of the City codes, ordinances, resolutions, standards, procedures and regulations and this Franchise, the express provisions of this

Franchise shall govern. Subject to federal and State preemption, the material terms and conditions contained in this Franchise may not be unilaterally altered by the City through subsequent amendment to any ordinance, rule, regulation, resolution or other enactment of the City, except in the lawful exercise of the City’s police power. The Grantee reserves the right to challenge provisions of any ordinance, rule, regulation, resolution or other enactment of the City that conflicts with the rights granted by this Franchise, either now or in the future.

C. This Franchise shall not be interpreted to prevent the City from imposing other conditions to the extent permitted by law, including additional compensation for use of the Right-of-Way, should the Grantee provide service(s) other than Cable Service.

D. No rights shall pass to the Grantee by implication. Without limiting the foregoing, by way of example and not limitation, this Franchise shall not include or be a substitute for:

1. Any permit, agreement or authorization required by the City for Right-of-Way users in connection with operations on or in the Right-of-Way or other public property, including, by way of example and not limitation, street cut permits; or

2. Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by this Franchise, including, without limitation, permits and agreements for placing devices on poles, in conduits or in or on other structures.

E. This Franchise is intended to grant limited rights and interests only as to those Rights of-Way in which the City has an actual interest. It is not a warranty of title or interest in any Right-of-Way. It does not provide the Grantee with any interest in any particular location within the Right-of-Way. This Franchise shall not be deemed to authorize the Grantee to provide service, or install cables, wires, lines or any other equipment or Facilities upon City property other than the Right-of-Way, or upon private property without the owner’s consent, or to utilize publicly or privately owned utility poles or conduits without a separate agreement with the owners thereof.

2.2 Use of Rights-of-Way

Within parameters reasonably related to the City’s role in protecting the public health, safety and welfare, the City may require that Cable System Facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Right-of-Way and may deny access if Grantee is not willing to comply with the City’s requirements.

2.3 Term

The term of this Franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be five (5) years from the effective date of this Franchise.

2.4 Effective Date

A. This Franchise and the rights, privileges and authority granted hereunder shall take effect and be in force from and after the effective date of this Franchise. The effective date of this Franchise shall be ______________, 2008.

B. The grant of this Franchise shall have no effect on the Grantee’s duty under the prior franchise, in effect prior to the effective date of this Franchise, to indemnify or insure the City against acts and omissions occurring during the period that the prior franchise was in effect, nor shall it have any affect upon liability to pay all franchise fees which were due and owed under a prior franchise.

2.5 Competitive Equity

A. The Grantee acknowledges and agrees that the City reserves the right to grant one or more additional franchises to provide Cable Service within the Franchise Area; provided, the City agrees that it shall amend this Franchise to include any material terms or conditions that it makes available to the new entrant within ninety (90) days of the Grantee’s request, so as to ensure that the regulatory and financial burdens on each entity are materially equivalent. “Material terms and conditions” include, but are not limited to: franchise fees; insurance; System build-out requirements; security instruments; Access Channel and support; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. If any such additional or competitive franchise is granted by the City which, in the reasonable opinion of the Grantee, contains more favorable or less burdensome terms or conditions than this Franchise, the City agrees that it shall amend this Franchise to include any more favorable or less burdensome terms or conditions in a manner mutually agreed upon by City and Grantee.

B. In the event an application for a new cable television franchise is filed with the City proposing to serve the Franchise Area, in whole or in part, the City shall serve or require to be served a copy of such application upon the Grantee by registered or certified mail or via nationally recognized overnight courier service.

C. In the event that a wireline multichannel Video Programming distributor provides video service to the residents of the City under the authority granted by federal or State legislation or other regulatory entity, the Grantee shall have a right to request Franchise amendments that relieve the Grantee of regulatory burdens that create a competitive disadvantage to the Grantee. In requesting amendments, the Grantee shall file a petition seeking to amend the Franchise. Such petition shall: (1) indicate the presence of such wireline competitor; (2) identify the basis for Grantee’s belief that certain provisions of the Franchise place Grantee at a competitive disadvantage; and (3) identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage. The City shall not unreasonably withhold consent to the Grantee’s petition.

2.6 Effect of Acceptance

By accepting the Franchise, the Grantee acknowledges and accepts the City’s legal right to issue and enforce the Franchise; agrees that it will not oppose the City’s intervening, to the extent it is legally entitled to do so, in any legal or regulatory proceeding affecting the Cable System; accepts and agrees to comply with each and every provision of this Franchise; and agrees that the Franchise was granted pursuant to processes and procedures consistent with applicable law.

Section 3. Franchise Fees and Financial Controls

3.1 Franchise Fees

As compensation for the use of the City’s Rights-of-Way, the Grantee shall pay as a franchise fee to the City, throughout the duration of this Franchise, an amount equal to five percent (5%) of Grantee’s

Gross Revenues or such greater or lesser percentage subject to subsection 3.4 below. Accrual of such franchise fees shall commence as of the effective date of this Franchise.

3.2 Payments

The Grantee’s franchise fee payments to the City shall be computed quarterly for the preceding calendar quarter ending March 31, June 30, September 30 and December 31. Each quarterly payment shall be due and payable no later than forty-five (45) days after said dates. Late payments shall be subject to applicable interest.

3.3 Acceptance of Payment

No acceptance of any payment shall be construed as an accord by the City that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the City may have for further or additional sums payable. The period of limitation for recovery of franchise fees payable hereunder shall be six (6) years from the date on which payment by the Grantee was due.

3.4 Maximum Franchise Fee

The parties acknowledge that, at present, applicable federal law limits the City to collection of a franchise fee of five percent (5%) of Gross Revenues in any twelve (12) month period. In the event that at any time during the term of this Franchise, applicable federal law authorizes an amount in excess of or less than five percent (5%) of Gross Revenues in any twelve (12) month period, Grantee and City shall modify the franchise fee as authorized by applicable federal law, upon ninety (90) days written notice between the parties, provided the City agrees that all other franchised cable companies in the Franchise Area over which the City has jurisdiction will be treated in an equivalent manner.

3.5 Quarterly Franchise Fee Reports

Each payment shall be accompanied by a written report to the City, containing an accurate statement in summarized form of the Grantee’s Gross Revenues and the computation of the payment amount.

3.6 Audits

Once during the term of this Franchise, upon thirty (30) days prior written notice, the City shall have the right to conduct an independent audit of the Grantee’s records necessary to enforce compliance with this Franchise and to calculate any amounts determined to be payable under this Franchise. If the Grantee cooperates in making all relevant records available upon request, the City will in good faith attempt to complete each audit within six (6) months, and the audit period shall not be any greater than the previous five (5) years. Any undisputed amounts due to the City as a result of the audit shall be paid within sixty (60) days following written notice to the Grantee by the City, which notice shall include a copy of the audit findings. If the audit shows that there has been an underpayment of franchise fees by five percent (5%) or more for the time period covered, then the Grantee shall pay up to fifteen thousand dollars ($15,000) for the audit period.

If Grantee disputes all or part of the audit findings, then that matter may be referred to non-binding arbitration by either of the parties. Each party shall bear one-half of the costs and expenses of

the arbitration proceedings. The decision of the arbitrator(s) shall be subject to judicial review at the request of either party.

3.7 Financial Records

The Grantee agrees to meet with a representative of the City upon request to review the Grantee’s methodology of record-keeping, financial reporting, the computing of franchise fee obligations and other procedures, the understanding of which the City deems necessary for reviewing reports and records that are relevant to the enforcement of this Franchise.

3.8 Interest

In the event that any payment is not received by the City by the date due or if an underpayment is discovered as the result of an audit, interest shall be charged from the date due at the maximum allowed rate under State law.

3.9 Additional Commitments Not Franchise Fees

No term or condition in this Franchise shall in any way modify or affect the Grantee’s obligation to pay franchise fees. Although the total sum of franchise fee payments and additional commitments set forth elsewhere in this Franchise may total more than five percent (5%) of the Grantee’s Gross Revenues in any twelve (12) month period, the Grantee agrees that the additional commitments, pursuant to federal law, may not be franchise fees.

3.10 Payment on Termination

If this Franchise terminates for any reason, the Grantee shall file with the City within one hundred twenty (120) days of the date of the termination, a financial statement by a certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous calendar year. Within forty-five (45) days of the filing of the certified statement with the City, the Grantee shall pay any unpaid amounts as indicated. If the Grantee fails to satisfy its remaining financial obligations as required in this Franchise, the City may do so by utilizing the funds available in any security provided by the Grantee, or if there have been franchise fee overpayments, the City shall reimburse the Grantee under these same time constraints.

3.11 Alternative Compensation

In the event the obligation of Grantee to compensate the City through franchise fee payments is lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the City such other compensation as is required by law.

3.12 Taxes

The franchise fees shall be in addition to any taxes, levies or assessments which are now or hereafter required to be paid by businesses in general by any law of the City, the State or the United States including, without limitation, sales, use, utility and business and occupation taxes.

3.13 Subscribers’ Bills

In no event will Grantee unlawfully evade or reduce applicable franchise fee payments required to be made to the City due to discounted bundled services. Customer billing shall be itemized by service(s), and Grantee shall comply with all applicable laws regarding rates for Cable Services and all applicable laws covering issues of cross subsidization.

Section 4. Administration and Regulation

4.1 Rates and Charges

All of Grantee’s rates and charges for Cable Services shall be subject to regulation by the City to the full extent authorized by applicable federal, State and local laws.

4.2 No Rate Discrimination

A. Grantee’s rates and charges shall be non-discriminatory so as to not disadvantage any Subscriber. Nothing herein shall be construed to prohibit:

1. The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns;

2. The offering of reasonable discounts to senior citizens or economically disadvantaged citizens;

3. The offering of bulk discounts for Multiple Dwelling Units.

B. The Grantee will provide throughout the term of the Franchise a discount of thirty percent (30%) from its published rate card to Subscribers for Basic Cable Services or the Basic Service portion of Expanded Basic Service (provided they are not already receiving a package discount in other promotional or programming package rates, at which time the promotional or programming package rate will apply) who are age 65 years or older or permanently disabled, provided that such individual(s) are the legal owner or lessee/tenant of the Dwelling Unit and are low income under federal guidelines.

C. Those Subscribers currently receiving any low income discount that differs in terms from the above will continue to receive discounted service on those terms; however, any new applicants will receive a discount based on the terms of this Franchise. The City, its designee or Grantee, at the City’s discretion, will be responsible for determining an individual’s eligibility under this program.

4.3 Filing of Rates and Charges

A. Throughout the term of this Franchise, the Grantee shall provide to the City a complete schedule of applicable rates and charges for Cable Services provided under this Franchise.

B. On an annual basis, the Grantee shall, upon request, provide a complete schedule of current rates and charges for any and all Leased Access Channels or portions of such Channels. The schedule shall include a description of the price, terms and conditions established by the Grantee for Leased Access Channels.

4.4 Late Fees

If the Grantee assesses any kind of fee for late payment, such fee shall comply with applicable law. The Grantee’s late fee and disconnection policies and practices shall be nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this subsection, shall apply equally in all parts of the City without regard to the income level of the Subscribers.

4.5 Determination of Subscribers Located in the Franchise Area

The City shall provide to the Grantee a current map and address list of the Franchise Area. The City agrees to update the map as necessary to incorporate any annexations and to provide a copy of the updated map to the Grantee. The Grantee shall ensure that franchise fee payments submitted to the City are attributable only to those Subscribers in the Franchise Area.

4.6 Performance Evaluation

A. Performance evaluation sessions may be held at any time upon request by the City during the term of this Franchise following Grantee’s repeated failure to comply with the terms of this Franchise.

B. All evaluation sessions shall be announced at least one (1) week in advance in a newspaper of general circulation in the Franchise Area.

C. Topics that may be discussed at any evaluation session include those issues surrounding Grantee’s failure to comply with the terms of the Franchise, provided that nothing in this subsection shall be construed as requiring the renegotiation of this Franchise or any term or provision herein and further provided that the City may seek legal or equitable remedies without first holding a performance evaluation session.

D. During evaluations under this subsection, the Grantee shall fully cooperate with the City and shall provide such information and Franchise compliance documents as the City may require to perform the evaluation.

4.7 Reserved Authority

The City and Grantee reserve all of their rights and authority arising from the Cable Act and any other relevant provisions of federal, State or local laws.

Section 5. Financial and Insurance Requirements

5.1 Indemnification

A. General Indemnification. The Grantee shall indemnify, defend and hold the City and its authorized agents harmless from any claim, damage, loss, liability, cost or expense, including court and appeal costs and attorneys’ fees and expenses, arising from any casualty or death to any persons or accident to any property or equipment arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, relocation or any other act done under this Franchise, by or for the Grantee, its authorized agents, or its employees, or by reason of any neglect or omission of the Grantee, its authorized agents or its employees. The Grantee shall consult with the City while conducting its defense of the City.

B. Procedures and Defense. If a claim or action arises, the City or any other indemnified party shall tender the defense of the claim or action to the Grantee in a timely manner, which defense shall be at the Grantee’s expense. The City may participate in the defense of a claim and, in any event, the Grantee may not agree to any settlement of claims financially affecting the City without the City’s written approval, which shall not be unreasonably withheld.

C. Duty of Defense. The fact that the Grantee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to the Grantee’s duty of defense and indemnification under this subsection.

D. Separate Representation. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by the Grantee to represent the City, the Grantee shall select other counsel not in conflict with the City.

5.2 Insurance Requirements

A. General Requirement. Grantee must have adequate insurance during the entire term of this Franchise 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 involve Grantee or its agents.

B. Minimum Insurance Limits. The Grantee shall maintain the following insurance limits:

1. Commercial General Liability: $2,000,000 per occurrence, $2,000,000 general aggregate and $1,000,000 products/completed operations aggregate.

2. Automobile Liability: $2,000,000 combined single limit.

3. Workers Compensation Insurance limits in accordance with State law requirements.

4. Excess or Umbrella Liability: $5,000,000 each occurrence and $5,000,000 policy limit.

C. Endorsements.

1. Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following:

a. The Grantee’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 Grantee’s insurance and shall not contribute to it.

b. The Grantee’s insurance shall not be canceled or the limits reduced, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.

c. The Grantee’s insurance shall name the City as an additional insured.

2. If the insurance is canceled or reduced in coverage, Grantee shall provide a replacement policy.

D. Acceptability of Insurers. The insurance obtained by Grantee shall be placed with insurers with a Best’s rating of no less than “A VII” that are authorized to insure in the State.

E. Verification of Coverage. The Grantee shall furnish the City with signed certificates of insurance upon acceptance of this Franchise.

F. No Limitation. Grantee’s maintenance of insurance policies required by this Franchise shall not be construed to limit the liability of Grantee 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.

5.3 Letter of Credit

A. If there is an uncured breach by Grantee of a material provision of this Franchise or a pattern of repeated violations of any provision(s) of this Franchise, then Grantee shall, upon written request, establish and provide to the City, as security for the faithful performance by Grantee of all of the provisions of this Franchise, an irrevocable letter of credit in the amount of twenty thousand dollars ($20,000).

B. If a letter of credit is furnished pursuant to 5.3 A, the letter of credit shall then be maintained at that same amount throughout the remaining term of this Franchise.

C. After the giving of notice to Grantee and expiration of any applicable cure period, the letter of credit may be drawn upon by the City for purposes including, but not limited to, the following:

1. Failure of Grantee to pay the City sums due under the terms of this Franchise;

2. Reimbursement of costs and expenses borne by the City to correct Franchise violations not corrected by Grantee; and

3. Liquidated damages assessed against Grantee as provided in this Franchise.

D. Within ten (10) days following notice that a withdrawal from the letter of credit has occurred, Grantee shall restore the letter of credit to the full amount required by 5.3 A. Grantee’s maintenance of the letter of credit shall not be construed to limit the liability of Grantee to the amount of the letter of credit or otherwise limit the City’s recourse to any other remedy available at law or in equity.

E. Grantee shall first appeal to the City Council for reimbursement in the event Grantee believes that the letter of credit was drawn upon improperly. Thereafter, Grantee shall have the right of judicial appeal if Grantee believes the letter of credit has not been properly drawn upon in accordance with this Franchise.

5.4 Bond(s)

A. The Grantee shall provide a performance bond to ensure Grantee’s faithful performance of any and all of the terms and conditions of this Franchise. The Franchise performance bond shall be in the amount of twenty-five thousand dollars ($25,000).

B. The City reserves the right, consistent with the City Code, to require project specific construction bonds in addition to the bond required in 5.4 A.

C. The Grantee shall pay all premiums or costs associated with maintaining the bond(s), and shall keep the same in full force and effect at all times during the term of this Franchise.

D. The parties agree that the Grantee’s maintenance of the bond(s) shall not limit the liability of the Grantee to the amount of the bond(s) or otherwise limit the City’s recourse to any other remedy available at law or equity.

Section 6. Customer Service Standards

The Grantee shall comply with lawful Customer Service Standards as provided in the City Code as it exists on the date of adoption of this Franchise, and as may be lawfully amended from time to time by the City thereafter. The Grantee reserves the right to challenge any Customer Service Standard that it believes is inconsistent with federal law or the contractual rights granted in this Franchise.

Section 7. Reports and Records

7.1 Inspection of Records

The City shall have access to, and the right to inspect, any books and records of Grantee that are not identified as proprietary or confidential which are reasonably necessary to enforce Grantee’s compliance with the provisions of this Franchise that directly affect the City, at the Grantee’s regional office, during normal business hours, and without unreasonably interfering with Grantee’s business operations. The City may, in writing, request copies of any such records or books, and Grantee shall provide such copies within thirty (30) days of the transmittal of such request. One copy of all reports and records required under this or any other Section shall be furnished to the City at the sole expense of Grantee. If the requested books and records are too voluminous, or identified as proprietary and confidential, or for security reasons cannot be copied or removed, then the City shall inspect them at Grantee’s regional office. If any books or records of Grantee are not kept in a regional office and not made available in copies to the City upon written request as set forth above, and if the City determines that an examination of such records is necessary for the enforcement of this Franchise, then all reasonable travel expenses incurred in making such examination shall be paid by Grantee.

7.2 Public Records

Grantee acknowledges that information submitted to the City is subject to State public disclosure laws.

7.3 Copies of Federal and State Documents

Upon written request, the Grantee shall submit to the City copies of any pleadings, applications, notifications, communications and documents of any kind, submitted by the Grantee or its Affiliates to any federal, State or local courts, regulatory agencies and other government bodies if such documents

directly relate to the City. The Grantee shall submit such documents to the City no later than thirty (30) days after receipt of the City’s request. The Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, State or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency.

7.4 Reports of Regulatory Violations

Grantee shall provide copies to the City of any report, order, consent decree or other formal determination of any regulatory agency having jurisdiction over Grantee pertaining to any alleged violation by Grantee of any applicable rule or law of the agency regarding the Grantee’s provision of Cable Service in the Franchise Area.

7.5 Map Required

Grantee shall provide to the City upon request a route map that depicts the general location of the Cable System Facilities placed in the Rights-of-Way in either electronic format or hard copy, at Grantee’s discretion. The route map shall identify Cable System Facilities as aerial or underground and is not required to depict cable types, number of cables, electronic equipment and service lines to individual Subscribers.

7.6 Annual Reports

Upon request, ninety (90) days after the end of the first quarter, Grantee shall submit to the City a written report, which shall include the following information:

A. A Gross Revenue statement for the preceding calendar year and all deductions and computations for the period, and such statement shall be reviewed by a certified public accountant, who may also be the chief financial officer or controller of Grantee; and

B. A summary of the previous year’s activities regarding the development of the Cable System, including, but not limited to, homes passed, beginning and ending plant miles and the number of Subscribers for each class of Cable Service (i.e., Basic, Expanded Basic Service, premium, etc.).

7.7 False Statements

Any intentional false or misleading statement or representation in any report required by this Franchise shall be a material breach of this Franchise and may subject the Grantee to any remedy, legal or equitable, which is available to the City under this Franchise.

Section 8. Programming

8.1 Broad Programming Categories

Grantee shall provide at least the following initial broad categories of programming to the extent such categories are reasonably available:

A. News, weather, sports and information;

B. Education;

C. General entertainment including movies and family oriented programming; and

D. Government.

8.2 Deletion of Broad Programming Categories

Grantee shall not delete or so limit as to effectively delete any broad category of programming within its control without prior written notice to the City.

8.3 Parental Control Device

Upon request by any Subscriber, Grantee shall make available a parental control or lockout device, trap or filter to enable a Subscriber to control access to both the audio and video portions of any Channels. Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter. Such devices, traps or filters will be provided at no charge to the Subscriber, unless otherwise provided by federal law.

Section 9. Access

9.1 Access Channel

A. The Grantee shall make available and maintain throughout the term of this Franchise one (1) Access Channel which shall be shared by the communities of Lake Stevens, Monroe, Snohomish and Sultan and be made available as part of the Basic Service Tier.

B. The City acknowledges that the Grantee’s Cable System provides additional benefits to Access programming needs beyond the requirements listed above. This is accomplished through the inclusion of other regional access programming within the regional channel line-up that is available within the Franchise Area.

C. If Grantee makes a change in its Cable System and related equipment and Facilities, or in its signal delivery technology, which directly or indirectly affects the signal quality or method or type of transmission of Access programming or services, Grantee shall take all necessary technical steps, including the acquisition of all necessary equipment, up to the point of demarcation to ensure that the capabilities of the Access Channel and delivery of Access programming are not diminished or adversely affected by such change.

D. The Grantee will use reasonable efforts to minimize the movement of the Access Channel assignment. The Grantee shall provide to the City a minimum of sixty (60) days notice prior to any relocation of the Access Channel unless the movement is required by federal law, in which case Grantee will provide the maximum amount of notice possible.

9.2 Management of Access Channel

A. The City may authorize Designated Access Providers to control, operate and manage the Access Channel. The City or its designee may formulate rules for the operation of the Access Channel, consistent with this Franchise.

B. As of the effective date of this Franchise, the Grantee shall maintain all existing return line(s) to facilitate the City’s current Access connectivity to Grantee’s Headend and hubs. If the City desires to relocate or expand the return line(s) to new location(s) over the term of this Franchise, upon one hundred twenty (120) days written request by the City and at the City’s cost for Grantee’s reasonable time and materials, the Grantee shall construct the requested return line(s).

9.3 Message Insertion

The Grantee, upon request, shall provide the City the opportunity to include one (1) bill insertion message per year throughout the term of the Franchise. The City shall be responsible for the costs of printing its bill insertion, the cost of inserting the information into the Grantee’s bills and for any incremental postage costs. Bill insertions must conform to the Grantee’s reasonable mailing requirements and availability of space.

9.4 Access Advance

Within forty-five (45) days of the City’s request, Grantee shall pay to the City a capital advance in the amount of $2,994. This is an advance payment of the Capital Contribution set forth in subsection 9.5. These funds may be used by the City for Access capital expenditures as permitted by federal law.

9.5 Monthly Capital Contributions

If a capital advance is provided to the City under subsection 9.4, Grantee may recover the capital advance from Subscribers in an amount not to exceed $0.25 per Subscriber per month (the monthly “Capital Contribution”). If the Grantee recoups the full payment amount prior to the expiration date of the Franchise, then upon written request, the Grantee shall continue to collect the monthly Capital Contribution and remit it to the City on a quarterly basis. After Grantee recoups the capital advance, then upon forty-five (45) days written notice, the monthly amount may be adjusted upon approval by the City Council but not to exceed $0.25 per Subscriber per month. Grantee shall not be responsible for paying the monthly Capital Contribution with respect to gratis or Bad Debt accounts. The City shall have discretion to allocate the capital advance and monthly Capital Contribution in accordance with applicable law and will provide to Grantee an annual report within sixty (60) days of the end of each calendar year. To the extent the City makes Access capital investments using City funds after the effective date of this Franchise and prior to receiving the capital advance or monthly Capital Contribution funds, the City is entitled to apply the subsequent capital advance and monthly Capital Contribution payments from Grantee toward such City capital investments.

Section 10. General Right-of-Way Use and Construction

10.1 Right-of-Way Meetings

Subject to receiving advance notice, Grantee will make reasonable efforts to attend and participate in meetings of the City regarding Right-of-Way issues that may impact the Cable System.

10.2 Joint Trenching

Grantee agrees to cooperate with others to minimize adverse impacts on the Rights-of-Way through joint trenching and other arrangements where technically and economically feasible.

10.3 Notice to Private Property Owners

Except in the case of an emergency involving public safety, Grantee shall give reasonable advance notice of significant construction work in adjacent Rights-of-Way to private property owners or tenants.

10.4 Poles and Conduits

A. This Franchise does not grant, give or convey to the Grantee the right or privilege to install its Facilities in any manner on poles or equipment of the City or of any other Person.

B. The Grantee and the City recognize that situations may occur in the future where the City may desire to place its own conduit and fiber optic cable in trenches or bores opened by the Grantee. The Grantee agrees to cooperate with the City in any such construction that involves trenching or boring. The Grantee shall allow the City to lay City conduit and fiber optic cable in the Grantee’s trenches and bores, provided that the City and Grantee enter into a mutually acceptable cost sharing arrangement consistent with State law. The City shall be responsible for maintaining its respective conduit and fiber optic cable, which is buried in the Grantee’s trenches and bores.

10.5 Movement of Facilities During Emergencies

During emergencies, except those involving imminent danger to the public health, safety or welfare, the City shall provide notice to Grantee, at a designated emergency response contact number, to allow Grantee the opportunity to respond and remedy the problem without disrupting Cable Service. If after providing notice, the Grantee fails to timely respond, the City may move Grantee’s Facilities.

10.6 Movement of Cable System Facilities

A. Nothing in this Franchise shall prevent the City or public utilities from constructing any public work or capital improvement. The Grantee shall pay the costs associated with any requirement of the City to relocate its Cable System Facilities located in the Right-of-Way. Following sixty (60) days written notice by the City, the Grantee shall remove, replace, relocate, modify or disconnect any of its Facilities within any Right-of-Way, or on any other property of the City, except that the City shall provide at least one hundred twenty (120) days written notice of any major City capital improvement project which would require the permanent removal, relocation, replacement, modification or disconnection of the Grantee’s Facilities or equipment from the Right-of-Way. If the Grantee fails to complete this work within the time prescribed and to the City’s satisfaction, the City may cause such work to be done and bill the cost of the work to the Grantee. The Grantee shall remit payment to the City within forty-five (45) days of receipt of an itemized list of those costs.

B. If any removal, replacement, modification or disconnection of the Cable System is required to accommodate the construction, operation or repair of the facilities or equipment of another City franchise holder(s), Grantee shall, after at least thirty (30) days advance written notice, take action to effect the necessary changes requested by the responsible entity, as long as, the other franchise holder(s) pay for the Grantee’s time and material costs associated with the project and Grantee is issued a permit, if necessary, for such work by the City.

C. At the request of any Person holding a valid City permit and upon reasonable advance notice, the Grantee shall remove, replace, relocate, modify or disconnect any of its Facilities or temporarily raise, lower or remove its Facilities as necessary to accommodate the work under the permit. Unless the project is identified by the City as a City capital improvement project, the cost must be paid by the permit holder, and the Grantee may require the estimated payment in advance.

10.7 Inspection of Facilities

The City may inspect any of Grantee’s Facilities or equipment within the Rights-of-Way and on other public property. If an unsafe condition is found to exist, the City, in addition to taking any other action permitted under applicable law, may order Grantee to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the City establishes. The City has the right to inspect, repair and correct the unsafe condition if Grantee fails to do so, and to reasonably charge Grantee therefor.

10.8 Stop Work

A. On notice from the City that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as reasonably determined by the City, or in violation of the terms of any applicable permit, laws, regulations, ordinances or standards, the work may immediately be stopped by the City.

B. The stop work order shall:

1. Be in writing;

2. Be given to the Person doing the work and be posted on the work site;

3. Be sent to Grantee by overnight delivery at the address given herein;

4. Indicate the nature of the alleged violation or unsafe condition; and

5. Establish conditions under which work may be resumed.

10.9 Permits

A. The Grantee shall apply for, and obtain, all permits necessary for construction of any of its Facilities prior to beginning work. The Grantee shall pay all applicable fees upon issuance of the requisite permits by the City.

B. As part of the permitting process, the City may impose, among other things, such conditions as are lawful and necessary for the purpose of protecting any structures in such Right-of-Way, proper restoration of such Right-of-Way and structures, protection of the public and the continuity of pedestrian or vehicular traffic.

C. In the event that emergency repairs are necessary, the Grantee shall immediately notify the City of the need for such repairs. The Grantee may initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after resolution of the problem.

10.10 Location of Facilities

Upon the City’s reasonable request, in connection with the design of any City project, the Grantee will verify the location of its underground System within the Franchise Area by marking on the surface the location of its underground Facilities.

10.11 Restoration of Right-of-Way and Other Public Property

If the Grantee excavates, disturbs or damages any Right-of-Way or other public property, then the Grantee shall be responsible for restoration in accordance with applicable regulations. The City may, after providing notice to the Grantee and a reasonable opportunity to cure, or without notice where the excavation, disturbance or damage may create a risk to public health or safety, repair, refill, restore or repave any excavation, disturbance or damage. The cost thereof shall be paid by the Grantee.

10.12 Maintenance

A. The Grantee’s Cable System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes or any other property of the City, or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in the Right-of-Way by, or under, the City’s authority prior to Grantee’s placement of Facilities.

B. The Grantee shall repair, renew, change and improve its Facilities to keep them in safe condition.

C. The Grantee will maintain membership in good standing with One Call or other similar or successor organization designated to coordinate underground equipment locations. The Grantee shall abide by the State’s “Underground Utilities” statutes as they relate to cable systems and will further comply with local procedures relating to the one call locator service program.

10.13 Right-of-Way Vacation

If any Right-of-Way or portion thereof used by the Grantee is vacated by the City during the term of this Franchise, the Grantee shall, without delay or expense to the City, remove its Facilities from such Right-of-Way, and restore, repair or reconstruct the Right-of-Way where such removal has occurred or, with the approval of the City, abandon its Facilities in place. In the event of failure, neglect or refusal of the Grantee, after thirty (30) days’ notice by the City, to restore, repair or reconstruct such Right-of-Way, the City may do such work or cause it to be done, and the reasonable cost thereof, as found and declared by the City, shall be paid by the Grantee within forty-five (45) days of receipt of an invoice and documentation.

10.14 Undergrounding of Cable

A. In areas of the Franchise Area where electrical or telephone utility wiring is aerial, the Grantee may construct, operate and maintain the Cable System aerially. The Grantee shall utilize existing poles wherever possible.

B. If electric and telephone utility wiring in an area of the Franchise Area is underground at the time of Grantee’s initial construction, the Grantee shall locate its Cable System Facilities

underground at no cost or expense to the City. Excluding City capital improvement projects, if electric and telephone utility wiring in an area of the Franchise Area is subsequently placed underground, then the Grantee shall locate its Cable System Facilities underground at no cost or expense to the City.

C. In the event of forced relocates that are part of a City capital improvement project that require conversion of overhead facilities to underground, such as projects that may include, but not be limited to, road widening, sidewalk installation, or beautification, Grantee agrees to bear the costs of converting Grantee’s Cable System from an overhead System to an underground System. This cost includes the labor and materials to relocate Grantee’s Cable System, but does not include costs related to trenching, backfill, or restoration of any Rights-of-Way within the project area as defined by project engineering plans.

D. In the event of a Local Improvement District (LID) project that requires relocation of Grantee’s Facilities, Grantee shall be reimbursed by the LID funding for all expenses incurred as a result of the project.

E. Related Cable System Facilities (such as pedestals, equipment cabinets, etc.) must be placed in accordance with applicable City Code requirements.

10.15 Avoid Interference

In the event of interference with the public health, safety or welfare, the City may require the removal or relocation of Grantee’s lines, cables and other appurtenances from the property in question at Grantee’s expense.

10.16 Tree Trimming

The Grantee may trim or prune trees in the Right-of-Way that interfere with the System. Any such trimming or pruning will be performed using standard practices and be in accordance with City regulations.

10.17 Standards

A. The Grantee must comply with all federal, State and local safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its Cable System. By way of illustration and not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.

B. In the maintenance and operation of its System in the Right-of-Way and other public places, and in the course of any new construction or addition to its Facilities, the Grantee shall proceed so as to cause minimal inconvenience to the general public.

10.18 Work of Contractors and Subcontractors

Work by contractors and subcontractors shall be subject to the same restrictions, limitations and conditions as if the work were performed by the Grantee. The Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf, and shall ensure that all such work is performed in compliance with this Franchise and other applicable law.

Section 11. System Design

A. Prior to the effective date of this Franchise, the Grantee undertook a voluntary upgrade of its Cable System to a 750 MHz hybrid fiber coaxial (“HFC”) fiber-to-the-node system architecture. The Cable System is capable of delivering high quality signals that meet or exceed FCC technical quality standards regardless of a particular manner in which a signal is transported. The Cable System has been activated for bidirectional transmissions. The Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of these specifications throughout the term of this Franchise.

B. Throughout the term of this Franchise, Grantee’s Cable System shall reasonably meet the cable related needs and interests of the community, in light of the costs thereof.

C. Regional Cable Services provided by a Grantee from a common Headend or hub shall be deployed and made available in the City as soon as practicable and technically feasible in light of the costs thereof.

Section 12. Technical Standards

12.1 Technical Performance

The City shall have the full authority permitted by applicable law to enforce compliance with FCC technical standards.

12.2 Cable System Performance Testing

All required technical performance or other System tests may be witnessed by representatives of the City. Upon request, the Grantee will notify the City before any required technical proof-of-performance or other testing occurs.

12.3 Standby Power

Grantee shall provide standby power generating capacity at the Headend and hubs of at least twenty-four (24) hours. Grantee shall maintain strategically located standby power supplies throughout the Cable System, rated for at least four (4) hours duration.

12.4 Emergency Alert System

The Grantee is providing an operating Emergency Alert System in accordance with the provisions of State and federal laws, including FCC regulations. Grantee will test the EAS periodically, in accordance with federal regulations.

Section 13. Service Extension and Complimentary Cable Service

13.1 Service Availability

A. The Grantee shall provide an aerial installation of Cable Service within seven (7) days of a request by any Person within its Franchise Area and schedule an underground installation within seven (7) days if the Person’s Dwelling Unit is passed by the Cable System. For purposes of this Section, a

request shall be deemed made on the date of signing a service agreement, receipt of funds by the Grantee, receipt of a written request by the Grantee or receipt by the Grantee of a verified verbal request. The Grantee shall provide such service:

1. With no line extension charge except as specifically authorized elsewhere in this Franchise.

2. At a non-discriminatory installation charge for a Standard Installation, with additional charges for non-Standard Installations computed according to a non-discriminatory methodology.

B. No customer shall be refused service arbitrarily. However, for a non-Standard Installation, such as the existence of more than one hundred twenty-five (125) feet of aerial distance or sixty (60) feet of underground trench from distribution cable to the exterior Demarcation Point for Subscribers, or a density of less than thirty (30) Dwelling Units per 5280 strand feet or sixty (60) Dwelling Units per 5280 trench feet, service may be made available on a pro rata cost basis of construction including cost of material, labor and easements. Customers who request service hereunder will bear an incremental portion of the construction and other costs. The Grantee may require that the payment of the pro rata cost of construction borne by such potential customers be paid in advance.

13.2 Complimentary Cable Service

The Grantee will provide without charge a Standard Installation, Converter and one outlet of Basic Service and Expanded Basic Service to a maximum of three (3) Emergency Operations Center (“EOC”) sites in the City.

Also, the Grantee currently provides, as a voluntary initiative without charge, a Standard Installation, Converter and one outlet of Basic Service to non-EOC sites (any other fire station, police station, School, public library and municipal building [excluding jails]), and provided that the buildings are either already served or are within the Standard Installation guidelines. The Grantee shall not be required to provide an outlet to such buildings where a non-Standard Installation is required, unless the City or building owner/occupant agrees to pay the Incremental Cost (time and materials) of any necessary Cable System extension and/or non-Standard Installation. If additional outlets of Cable Service are provided to such buildings beyond those required herein, the building owner/occupant shall pay the usual installation fees associated therewith. The Cable Service provided shall not be used for commercial purposes. The City shall take reasonable precautions to prevent the inappropriate use of the Grantee’s Cable System.

Section 14. Franchise Violations

14.1 Non-Material Franchise Violations

A. If the City believes that Grantee has failed to perform any non-material obligation under this Franchise, the City shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have thirty (30) days from the receipt of such notice to:

1. respond to the City, contesting the City’s assertion that a default has occurred, and request a meeting in accordance with subsection (B), below; or

2. cure the default; or

3. notify the City that Grantee cannot cure the default within thirty (30) days, because of the nature of the default. In the event the default cannot be cured within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and notify the City in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the City may set a meeting in accordance with subsection (B) below to determine whether additional time beyond the thirty (30) days specified above is indeed needed, and whether Grantee’s proposed completion schedule and steps are reasonable.

B. If Grantee does not cure the alleged default within the cure period stated above, or denies the default and requests a meeting in accordance with subsection (A)(1), or the City orders a meeting in accordance with subsection (A)(3), the City shall set a meeting to investigate said issues and the existence of the alleged default. The City shall notify Grantee of the meeting in writing and such meeting shall take place no less than fifteen (15) days after Grantee’s receipt of notice of the meeting. At the meeting, Grantee shall be provided an opportunity to be heard and to present evidence in its defense.

C. If, after the meeting, the City determines that a default exists, Grantee and the City may agree on a plan and schedule to cure the default. Absent such agreement, the City shall order Grantee to correct or remedy the default or breach within thirty (30) days or within such other reasonable timeframe, beyond thirty (30) days as the City shall determine. In the event Grantee does not cure the default within such time to the City’s reasonable satisfaction, the City may pursue any other legal or equitable remedy available under this Franchise or applicable law.

14.2 Material Franchise Violations

A. The City may revoke this Franchise and rescind all rights and privileges associated with this Franchise in the event of a material violation of this Franchise, including:

1. If Grantee willfully fails for more than three (3) continuous days to provide Cable Service;

2. If Grantee attempts to practice any fraud or deceit upon the City or Subscribers;

3. If Grantee fails to provide the insurance, indemnification, performance bond or other security required by this Franchise;

4. If Grantee fails to timely pay its franchise fees to the City and the cure period has expired;

5. If Grantee fails to timely provide the Access Channel, Access Advance or monthly Capital Contributions; or

6. If Grantee fails to timely pay liquidated damages or any other amounts owed under this Franchise.

B. Prior to forfeiture or termination of the Franchise, the City shall give written notice to the Grantee of its intent to revoke the Franchise. The notice shall set forth the exact nature of the noncompliance. Grantee shall have thirty (30) days from such notice to object in writing and to state its

reasons for such objection and provide any explanation. In the event the City has not received a timely and satisfactory response from Grantee, it may then seek a termination of the Franchise in accordance with this subsection and applicable law.

C. The City Council shall conduct a public hearing to determine if revocation of the Franchise is warranted.

1. At least thirty (30) days prior to the public hearing, the City Clerk shall issue a public hearing notice that shall establish the issue(s) to be addressed in the public hearing; provide the time, date and location of the hearing; provide that the City Council shall hear any Persons interested therein; and provide that the Grantee shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to be represented by counsel and to question witnesses.

2. A verbatim transcript shall be made by a court reporter of such proceeding and the cost shall be paid by the Grantee.

3. Within thirty (30) days after the close of the hearing, the City Council shall issue a written decision regarding the revocation and termination of the Franchise.

D. Grantee shall be bound by the City Council’s decision to revoke the Franchise unless an appeal to a court of competent jurisdiction is filed within thirty (30) days of the date of the City Council’s decision. Grantee and the City shall be entitled to such relief as the court may deem appropriate.

14.3 Termination

A. If this Franchise expires without renewal or extension, or is otherwise lawfully terminated or revoked, the City may, subject to applicable law:

1. Require Grantee to maintain and operate its Cable System on a month-to-month basis until a new cable operator is selected; or

2. Purchase Grantee’s Cable System in accordance with federal law.

B. The City may order the removal of the above-ground Cable System Facilities and such underground Facilities from the City at Grantee’s sole expense within a reasonable period of time as determined by the City. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall leave all Rights-of-Way, public places and private property in as good a condition as that prevailing prior to Grantee’s removal of its equipment and without affecting electrical or telephone wires or attachments. The indemnification, insurance provisions and letter of credit (if any) shall remain in full force and effect during the period of removal, and Grantee shall not be entitled to, and agrees not to request, compensation of any sort therefor.

C. If Grantee fails to complete any removal required by subsection 14.3 (B) to the City’s satisfaction, after written notice to Grantee, the City may cause the work to be done and Grantee shall reimburse the City for the costs and expenses incurred within thirty (30) days after receipt of an itemized list of the costs and expenses, or the City may recover the costs and expenses through the Grantee’s security instruments if Grantee has not paid such amount within the foregoing thirty (30) day time period.

Any costs and expenses incurred by the City regarding such removal shall include reasonable attorneys’ fees and costs and expenses for work conducted by the City staff or its agents.

14.4 Assessment of Liquidated Damages

A. Because it may be difficult to calculate the harm to the City in the event of a breach of this Franchise by Grantee, the parties agree to liquidated damages as a reasonable estimation of the actual damages to the City. To the extent that the City elects to assess liquidated damages as provided in this Franchise, such damages shall be the City’s sole and exclusive remedy for such breach or violation and shall not exceed a time period of one hundred eighty (180) days. Nothing in this subsection is intended to preclude the City from exercising any other right or remedy with respect to a breach that continues past the time the City stops assessing liquidated damages for such breach.

B. Prior to assessing any liquidated damages, the City shall give Grantee proper written notice and a thirty (30) day right to cure or such other time as the parties agree.

C. 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 of the violation.

D. Pursuant to the requirements outlined herein, liquidated damages shall not exceed the following amounts: two hundred dollars ($200.00) per day for material departure from the FCC technical performance standards; one hundred dollars ($100.00) per day for failure to provide the Access Channel or any equipment related thereto or funding which is required; one hundred dollars ($100.00) per day for each material violation of the Customer Service Standards; fifty dollars ($50.00) per day for failure to provide reports or notices as required by this Franchise; and one hundred dollars ($100.00) per day for any material breaches or defaults not previously listed.

14.5 No Offset

No cost to Grantee arising from a breach or violation of the Franchise shall be offset against any sums due the City as a tax or franchise fee regardless of whether the combination of franchise fees, taxes and said costs exceeds five percent (5%) of Grantee’s Gross Revenues in any 12-month period unless otherwise permitted by law.

Section 15. Franchise Renewal

Any renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures or substantive protections set forth therein shall be deemed to be preempted or superseded by the provisions of any subsequent federal or State law.

Section 16. Franchise Transfer

A. The Cable System and this Franchise shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the City, which consent shall not be unreasonably withheld. In the event of a change in control, such consent shall not be deemed to waive any rights of the City to subsequently enforce noncompliance issues relating to this Franchise.

B. The Grantee shall promptly notify the City of any actual or proposed sale, change in, transfer of or acquisition by any other party of control of the Grantee. The word “control” as used herein is not limited to majority stock ownership but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall make this Franchise subject to cancellation unless and until the City shall have consented in writing thereto.

C. The parties to the sale, transfer or change in control of the Cable System shall make a written request to the City for its approval of a sale or transfer or change in control and furnish all information required by law.

D. The City shall act on the request within the timeframe permitted by law, provided it has received a complete application with all information required by applicable law. If the City fails to render a final decision on the request within such timeframe, such request shall be deemed granted unless the requesting party and the City agree to an extension of time.

E. Within thirty (30) days of any transfer, sale or change in control, if approved or deemed granted by the City, Grantee shall notify the City of such sale or transfer of ownership or change in control. In case of a sale or transfer of ownership the transferee shall file its written acceptance agreeing to be bound by all of the provisions of this Franchise. In the event of a change in control, in which the Grantee is not replaced by another entity, the Grantee will continue to be bound by all of the provisions of this Franchise.

F. In reviewing a request for sale or transfer or change in control, the City may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall assist the City in so inquiring. The City may condition said sale or transfer or change in control upon such terms and conditions as permitted by applicable law. Additionally, such Person shall effect changes as promptly as practicable in the operation of the Cable System, if any changes are necessary, to cure any violations or defaults.

G. Notwithstanding anything to the contrary in this subsection, the prior approval of the City shall not be required for any sale, assignment or transfer of the Franchise or Cable System to an intra-company Affiliate, provided that the Grantee must reasonably notify the City in advance and the Affiliate must have the requisite legal, financial and technical capability and agree in writing to comply with all of the provisions of the Franchise. Further, Grantee may pledge the assets of the Cable System for the purpose of financing without the consent of the City, provided that such pledge of assets shall not impair or mitigate Grantee’s responsibilities and capabilities to meet all of its obligations under the provisions of this Franchise.

Section 17. Notices

Throughout the term of this Franchise, each party shall maintain and file with the other an address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. At the effective date of this Franchise:

The Grantee’s address shall be:

Comcast of California/Colorado/Washington I, Inc.P.O. Box 3042Bothell, WA 98041-3042

Attn: Franchising Department

The City’s address shall be:

City of Sultan319 Main StreetP.O. Box 1199Sultan, WA 98294-1199Attention: City Clerk

Section 18. Miscellaneous Provisions

18.1 Discriminatory Practices Prohibited

Throughout the term of this Franchise, Grantee shall fully comply with all equal employment and nondiscrimination provisions of applicable law.

18.2 Cumulative Rights

All rights and remedies given to the City and Grantee by this Franchise shall be in addition to and cumulative with any and all other rights and remedies now or hereafter available to the parties, at law or in equity. The exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise any other right or remedy.

18.3 Costs to be Borne by the Grantee

The Grantee shall pay for all costs of publication of this Franchise.

18.4 Attorneys’ Fees

If any action or suit arises in connection with this Franchise (excluding Franchise renewal proceedings), the court shall determine which party shall be entitled to recover reasonable attorneys’ fees, costs and expenses in connection therewith, in addition to such other relief as the court may deem proper.

18.5 Binding Effect

This Franchise shall be binding upon the parties hereto, their permitted successors and assigns.

18.6 Authority to Amend

This Franchise may be amended at any time by written agreement between the parties.

18.7 Venue

The venue for any dispute related to this Franchise shall be in the United States District Court for the Western District of Washington in Seattle or in the Snohomish County Superior Court in Everett.

18.8 Governing Law

The City and Grantee shall be entitled to all rights and be bound by all changes in applicable federal, State and local laws.

18.9 Captions

The captions and headings of this Franchise are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of any provisions of this Franchise.

18.10 No Joint Venture

Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties and neither party is authorized to, nor shall either party act toward third Persons or the public in any manner that would indicate any such relationship with the other.

18.11 Non-Waiver

The failure of either party at any time to require performance by the other of any provision hereof shall in no way affect the right of the party hereafter to enforce the same, nor shall the waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision.

18.12 Severability

If any section, subsection, paragraph or provision of this Franchise is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other section, subsection, paragraph or provision of this Franchise, all of which will remain in full force and effect for the term of the Franchise.

18.13 Force Majeure

The Grantee shall not be held in default under, or in noncompliance with, the provisions of this Franchise, nor suffer any enforcement or imposition of damages relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control, including war or riots, acts of terrorism, civil disturbances, earthquakes or other natural catastrophes, labor stoppages or work delays caused by waiting for utility providers to service or monitor their utility poles to which the Grantee’s Cable System is attached, or unavailability of materials.

18.14 Time Limits Strictly Construed

Whenever this Franchise sets forth a time for any act to be performed by the Grantee or the City, such time shall be deemed to be of the essence, and any failure of the Grantee or the City to perform within the allotted time may be considered a breach of this Franchise.

18.15 Entire Agreement

This Franchise represents the entire understanding and agreement between the parties and supersedes all prior oral and written negotiations and agreements between the parties with respect to the subject matter hereof.

18.16 Acceptance

After the passage and approval of this Franchise by Ordinance by the City Council and receipt by Grantee, this Franchise shall be accepted by Grantee by filing with the City its written acceptance of all of the provisions of this Franchise. If the acceptance is not filed, this Franchise shall then be voidable at the discretion of the City.

IN WITNESS WHEREOF, this Franchise is signed by the City of Sultan, Washington this ____ day of __________, 2008.

CITY OF SULTAN, WASHINGTON

By: Title:

Attest:

By: City Clerk

Approved as to Form:

By: City Attorney

Accepted and agreed to this ____ day of __________, 2008.

COMCAST OF CALIFORNIA/COLORADO/WASHINGTON I, INC.

By: Its:

Attest:

By: Secretary

ATTACHMENT B

C I T Y O F S U L T A NSultan, Washington


AN ORDINANCE OF THE CITY OF SULTAN, WASHINGTON, ENACTING CABLE SYSTEM REGULATIONS THAT GOVERN THE GRANTING OF CABLE SYSTEM FRANCHISES AND THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF CABLE SYSTEMS AND REPEALING CHAPTER 5.28 OF THE SULTAN MUNICIPAL CODE.

WHEREAS, the City wishes: (i) to promote the availability of high-quality and diverse Cable Services to residents, the City and other public institutions; (ii) to promote the availability of diverse information resources to the community; (iii) to promote competitive Cable Services and rates; (iv) to take advantage of technologies; (v) to enhance educational opportunities throughout the community and provide opportunities for building a stronger community; and (vi) to allow flexibility to respond to changes in technology, Customer interests and competitive factors within the cable television industry that will positively affect the health, welfare and well-being of the community;

WHEREAS, the City, pursuant to applicable federal law, is authorized to grant one or more nonexclusive Franchises to construct, operate and maintain Cable Systems within the City; and

WHEREAS, because of the complex and rapidly changing technology associated with Cable Systems, the City Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers that should be vested in the City. It is further the intent of this Chapter and subsequent amendments to provide for and specify the means to attain the best possible Cable Service to the public. It is the further intent of this Chapter to establish regulatory provisions that permit the City to regulate Cable System Franchises to the maximum extent permitted by federal and State law, including, but not limited to, the Cable Act, applicable Federal Communications Commission regulations and Washington law.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SULTAN, WASHINGTON DO ORDAIN AS FOLLOWS:

Section 1. Repeal. Chapter 5.28 of the Sultan Municipal Code is hereby repealed.

Section 2. Short Title. This Chapter shall constitute the “Cable System Regulations” of the City of Sultan and may be referred to as such.

Section 3. Definitions.

For the purposes of this Chapter, the following terms, phrases, words and their derivations shall have the meanings given herein where capitalized. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular

include the plural. Words otherwise not defined shall be given their common and ordinary meaning. The word “shall” is always mandatory and not merely directory.

1. “Applicant” means any person or entity that applies for an initial Franchise.

2. “Cable Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as any of them may be amended.

3. “Cable Operator” means any person or group of persons, including a Franchisee, who provide(s) Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a Cable System.

4. “Cable Service” means the one-way transmission to Customers of video programming or other programming service, and Customer interaction, if any, which is required for the selection or use of such video programming or other programming service.

5. “Cable System” means any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Customers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves Customers without using any public Right-of-Way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to Customers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with federal statutes and regulations; or (E) any facilities of any electric utility used solely for operating its electric utility systems.

6. “City” means the City of Sultan, a municipal corporation of the State of Washington, and all of the area within its boundaries, as such may change from time to time.

7. “City Council” means the Sultan City Council, or its successor, the governing body of the City.

8. “Customer” means any person who or which elects to subscribe to, for any purpose, Cable Service provided by a Franchisee by means of or in connection with the Cable System and whose premises are physically wired and lawfully activated to receive Cable Service from Franchisee’s Cable System.

9. “Customer Service Representative” or “CSR” shall mean any person employed by the Cable Operator to assist or provide service to Customers, whether by answering public telephone lines, answering Customers’ questions or performing other Customer service related tasks.

10. “Customer Service Standards” means those Customer Service Standards set forth herein and as hereafter amended that are applicable to Cable Operators.

11. “FCC” means the Federal Communications Commission.

12. “Franchise” means an agreement that authorizes a person or entity to construct, operate, maintain or reconstruct a Cable System. Upon the written acceptance by a Franchisee, the agreement constitutes a contract between the City and Franchisee.

13. “Franchise Area” means the area within the jurisdictional boundaries of the City to be served by a Franchisee as specified in the Franchise.

14. “Franchisee” means the person, firm, corporation or entity to whom or which a Franchise, as hereinabove defined, is granted by the City Council under this Chapter and the lawful successor, transferee or assignee of said person, firm, corporation or entity.

15. “Normal Business Hours” shall mean those hours during which most similar businesses in the City are open to serve Customers. In all cases, “Normal Business Hours” must include some evening hours at least one night per week and/or some weekend hours.

16. “Normal Operating Conditions” shall mean those service conditions that are within the control of the Cable Operator. Those conditions that are not within the control of the Cable Operator include, but are not limited to, natural disasters, civil disturbances, power outages and severe or unusual weather conditions. Those conditions that are ordinarily within the control of the Cable Operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the Cable System.

17. “Right-of-Way” or “Rights-of-Way” means all of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and are located within the City: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property and areas.

18. “Service Interruption” shall mean the loss of picture or sound on one or more cable channels.

Section 4. Franchise Grant.

It is unlawful to engage in or commence construction, operation or maintenance of a Cable System in the City without a Franchise issued under this Chapter. The City Council may, by ordinance, issue a nonexclusive Franchise to construct, operate and maintain a Cable System within the City to any person or entity, whether operating under an existing Franchise or not, who applies for authority to furnish Cable Service which complies with the terms and conditions of this Chapter, and provided that such person or entity also agrees to comply with all of the provisions of the Franchise. However, this shall not be deemed to require the grant of a Franchise to any particular person or entity. The City Council may restrict the number of Franchises should it determine such a restriction would be in the public interest.

Section 5. Franchise Purposes.

A Franchise granted by the City under the provisions of this Chapter shall:

A. Permit the Franchisee to engage in the business of operating a Cable System and providing Cable Service within the City;

B. Permit the Franchisee to erect, install, construct, repair, reconstruct, replace and retain wires, cables, related electronic equipment, conduits and other property in connection with the operation of the Cable System in, on, over, under, upon, along and across Rights-of-Way within the City; and

C. Set forth the obligations of the Franchisee under the Franchise.

Section 6. Nonexclusive Franchise.

Any Franchise granted pursuant to this Chapter shall be nonexclusive and not preclude the City from granting other or future Franchises or permits.

Section 7. Application.

A. An Applicant for an initial Franchise shall submit to the City a written application on a form provided by the City, at the time and place specified by the City for accepting applications, and accompanied by the designated application fee. An application fee in the amount of $20,000 shall accompany the application to cover costs associated with processing the application, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the Applicant, notice and publication requirements, and document preparation expenses. In the event such costs exceed the application fee, the Applicant shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs. Conversely, if such costs are less than the application fee, the City shall refund the difference to the Applicant.

B. An application for an initial Franchise for a Cable System shall contain, at a minimum:

1. A statement as to the proposed Franchise and information relating to the characteristics and location of the proposed Cable System;

2. A resume of prior history of the Applicant, including the expertise of the Applicant in the Cable System field;

3. Information demonstrating the Applicant’s legal, technical and financial ability to construct and operate the proposed Cable System;

4. A list of the partners, general and limited, of the Applicant, if a partnership, members, if a limited liability company, or the percentage of stock owned or controlled by each stockholder having a five percent (5%) or greater interest, if a corporation;

5. A list of officers, directors and key employees of the Applicant, together with a description of the background and experience of all such persons;

6. The names and addresses of any parent entity or subsidiary of the Applicant or any other business entity owning or controlling the Applicant in whole or in part, or owned or controlled in whole or in part by the Applicant;

7. A proposed construction and service schedule;

8. Any other reasonable information that the City may request.

The City shall be allowed the opportunity to ask relevant follow-up questions and obtain further information from whatever source. A refusal by an Applicant to cooperate or provide requested information is sufficient grounds for the City to deny an application.

C. Upon receipt of an application for an initial Franchise and after obtaining any additional information the City in its sole discretion deems appropriate from any source, a hearing shall be scheduled to allow public comment. At the hearing, the City Council shall receive public comment regarding the following:

1. Whether the public will benefit from granting a Franchise to the Applicant;

2. Whether the Applicant appears to have adequate legal, financial and technical qualifications and capabilities to build, operate and maintain a Cable System in the City;

3. Whether the Applicant has any conflicting interests, either financial or commercial, that will be contrary to the interests of the City;

4. Whether the Applicant will comply with all of the terms and conditions placed upon a Franchisee by the Franchise, this Chapter and other lawfully applicable local laws and regulations;

5. Whether the Applicant will comply with all relevant federal and State laws and regulations pertaining to the construction, operation and maintenance of the Cable System.

D. Within the timeframe prescribed by applicable law, the City Council shall decide whether to grant a Franchise and on what conditions. The City Council’s decision shall be based upon the application, any additional information submitted by the Applicant or obtained by the City from any source and public comments. The City Council may grant one (1) or more Franchises or may decline to grant any Franchise.

Section 8. Duration.

The term of any Franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall be specified in the Franchise. The effective date of any Franchise shall be as specified in the Franchise.

Section 9. Police Powers.

In accepting any Franchise, the Franchisee acknowledges that its rights thereunder are subject to the police powers of the City to adopt and enforce ordinances necessary for the health, safety and welfare of the public, and it agrees to comply with all applicable laws enacted by the City pursuant to such power.

Section 10. Use of Rights-of-Way.

For the purposes of operating and maintaining a Cable System in the City, a Franchisee may place and maintain within the Rights-of-Way such property and equipment as are necessary and appurtenant to the operation of the Cable System. Prior to construction of the Cable System in the Rights-of-Way, the Franchisee shall procure all necessary permits, pay all applicable fees in connection therewith and comply with all applicable laws, regulations, resolutions and ordinances, including, but not limited to, land use and zoning requirements.

Section 11. Pole or Conduit Agreements.

No Franchise shall relieve Franchisee of any of its obligations involved in obtaining pole or conduit agreements from any department of the City, any utility company or from others maintaining facilities in the Rights-of-Way.

Section 12. Franchise Fees.

The Franchisee shall pay the City franchise fees in accordance with the terms of the Franchise and applicable law.

Section 13. Taxes.

Nothing in this Chapter shall limit the Franchisee’s obligation to pay applicable local, State and federal taxes.

Section 14. Customer Service Standards.

A. Policy. A Cable Operator will first resolve Customer inquiries and complaints without delay and without involvement of the City. Where a given complaint is not addressed by the Cable Operator to the Customer’s satisfaction, the City may intervene.

These standards are intended to be of general application. A Cable Operator is free to exceed these standards for the benefit of its Customers. However, the Cable Operator shall be relieved of obligations hereunder if it is unable to perform due to a force majeure event affecting a significant portion of the Franchise Area.

B. Customer Service.

1. Courtesy. All employees of the Cable Operator shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with Customers.

2. Availability and Accessibility – In Person. The Cable Operator must maintain, at a minimum, one (1) customer service center located in Everett. This customer service location shall at all times allow Customers to make payments, return equipment or get assistance from knowledgeable staff. The customer service center shall be open Monday through Saturday, excluding legal holidays, with sufficient hours necessary to meet Customer demand. The customer service center will be staffed to meet all Customer needs with on-site Customer Service Representatives. If, however, the customer service center is required to relocate, the Cable Operator shall be allowed a reasonable period of time to establish a new location.

3. Availability and Accessibility – On the Telephone. A CSR will be available to respond to Customer inquiries during Normal Business Hours. The Cable Operator shall maintain local or toll free telephone access lines that shall be available during Normal Business Hours for service/repair requests and billing inquiries.

The Cable Operator shall retain sufficient CSRs and telephone line capacity to ensure that, during Normal Operating Conditions, telephone calls to service/repair and billing inquiry lines are answered within thirty (30) seconds or less, and that any transfers are made within thirty (30) seconds. This standard shall be met no less than ninety (90) percent of the time, measured on a quarterly basis under

Normal Operating Conditions. Under Normal Operating Conditions, the total number of calls receiving busy signals shall not exceed three percent (3%) of the total telephone calls.

The Cable Operator shall not be required to acquire equipment or perform surveys to measure compliance with any of the telephone answering standards above unless and until the City requests such actions based on a historical record of Customer complaints indicating a clear failure to comply.

C. Responsiveness.

1. The Cable Operator shall complete all standard aerial installations within seven (7) days after an order has been placed, unless otherwise requested by the Customer. The Cable Operator shall schedule all standard underground installations within seven (7) days after an order has been placed, unless otherwise requested by the Customer. “Standard” installations shall include those that are located within 125 aerial feet or sixty (60) underground trench feet of the Cable Operator’s distribution system. This standard must be met ninety-five percent (95%) of the time under Normal Operating Conditions as measured on a quarterly basis. If the Customer requests a non-standard installation, or the Cable Operator determines that a non-standard installation is required, the Cable Operator shall provide the Customer in advance with a total installation cost estimate and an estimated date of completion.

2. Under Normal Operating Conditions, all temporary cable drops shall be converted to a permanent drop within no more than three (3) calendar weeks from the initial installation or at a time mutually agreed upon between the Cable Operator and Customer.

3. Customers requesting installation of Cable Service or repair service to an existing installation may choose any available four (4) hour block of time for the appointment during Normal Business Hours.

4. The Cable Operator shall be deemed to have responded to a request for service under the provisions of this subsection when a technician arrives within the agreed upon time. If the Customer is absent when the technician arrives, the technician shall leave written notification of timely arrival. A record that notice was provided shall be kept by the Cable Operator.

5. If a Cable Operator representative fails to keep an installation or service appointment for any reason, the Cable Operator will contact the Customer before the end of the scheduled appointment and reschedule the appointment at a time convenient for the Customer.

6. The Cable Operator shall respond to a Customer’s letter in writing within two (2) weeks of receipt of the letter. The Cable Operator shall initiate resolution to a Customer’s inquiry, complaint, general question or comment made by telephone or e-mail within forty-eight (48) hours.

7. Any difficulties that cannot be resolved by the CSR shall be referred to the appropriate supervisor who shall use his/her best efforts to contact the Customer within twenty-four (24) hours of initial contact and resolve the problem within a mutually agreeable timeframe.

D. Repairs and Outages.

1. The Cable Operator shall interrupt service only for good cause and for the shortest time possible. Scheduled interruptions that the Cable Operator anticipates will last more than four (4) hours

shall occur during periods of minimum use of the Cable System as reasonably determined by the Cable Operator.

2. If a Customer calls to report poor signal quality or interruptions attributable to the Cable Operator’s equipment, the Cable Operator shall begin working on the problem no later than the next day following the Customer’s call, provided that the Customer is available or at such later time as is convenient for the Customer. If an appointment is necessary, the Customer may choose a four (4) hour block of time during Normal Business Hours.

3. Upon discovery of an outage affecting three (3) or more Customers, the Cable Operator shall initiate its outage repair process within two (2) hours, under Normal Operating Conditions.

4. A Cable Operator shall initiate repairs to Customer reported Service Interruptions, for any cause beyond the control of the Cable Operator, within twenty-four (24) hours after the conditions beyond its control have been corrected.

5. Under Normal Operating Conditions, if after twenty-four (24) hours service is not restored to a Customer, a Cable Operator shall, upon a Customer’s request, provide a refund or credit or other compensation of equal or greater value.

6. The Cable Operator will track and record all outages and Service Interruptions that occur within the Franchise Area.

E. Bills, Credits, Refunds and Deposits. If a Customer requests disconnection of any or all services, billing for affected services shall end on the same day as the request, or on the future date for which the disconnect is ordered. However, the Customer may continue to be billed for equipment until returned to the Cable Operator. The Cable Operator shall issue a credit or refund to a Customer within thirty (30) business days after the close of the billing cycle following the return of the equipment and request for disconnection. If a Customer was required to provide a deposit, that deposit must be returned when appropriate.

F. Treatment of Property.

1. Removal or trimming of trees and shrubs in the Right-of-Way will be subject to the regulations of the City.

2. The Cable Operator shall repair any damage or restore any property to as good a condition as before the work causing such damage or disturbance was initiated. The Cable Operator shall repair, replace or compensate all property owners for damages resulting from the Cable Operator’s installation, construction, service or repair activities.

3. Except in the case of an emergency involving public safety or Service Interruption to a large number of Customers, the Cable Operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided that, in the case of planned construction operations, such notice shall be delivered or provided at least twenty-four (24) hours prior to entry. All work done in the Right-of-Way shall be subject to time requirements of the permit.

4. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law.

5. For major construction or installation projects, the Cable Operator shall notify by mail or door hanger the adjacent property owners/legal tenants in advance of the Right-of-Way work. In the case of an emergency, the Cable Operator shall attempt to contact the property owner or legal tenant in person, and in the event personal contact is not made, the Cable Operator shall leave a door hanger notice.

6. The Cable Operator shall clean all areas surrounding any work site of debris caused by the Cable Operator’s activities.

G. Services for Customers with Disabilities.

1. For any Customer with a disability, the Cable Operator shall upon a Customer request and at no charge deliver and/or pick up converters at the Customer’s home.

2. The Cable Operator shall provide TDD/TYY service with trained operators who can provide assistance for hearing-impaired Customers at no charge.

3. The Cable Operator shall comply with the Americans with Disabilities Act.

H. Customer Information.

1. The Cable Operator shall provide to Customers an accurate, comprehensive service agreement and Customer installation packet upon installation, including the following information:

a. Products and services offered by the Cable Operator, including channel positions of programming carried on the Cable System.

b. The Cable Operator’s complete range of service options and the prices for those services and conditions of subscription to programming and other services.

c. Installation and service maintenance policies, including the Customer’s and Cable Operator’s responsibilities for equipment.

d. Billing and complaint procedures for investigation and resolution of Customer service complaints, including the address and telephone number of the Cable Operator’s office(s), the Cable Operator’s policies on deposits, credit balances and returned check charges.

e. Policies concerning protection of Customer privacy as required under law.

f. The availability of a parental control/lock out device and the procedures for channel blocking.

g. Service termination procedure.

h. A description of the manner that will be used to provide notice of changes in rates, services or service terms and conditions.

i. The phone number of the Customer Service Department that is responsible for handling cable questions and complaints for the Cable Operator. This information shall be prominently displayed in the installation packet.

2. The Cable Operator shall provide Customers with written notification of any changes in rates, programming, services or channel positions as soon as possible in writing. Customers shall be given a description of the changes, a phone number for questions and the effective date. Notice must be given to Customers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Cable Operator.

3. All officers, agents and employees of the Cable Operator, its contractors and subcontractors who are in personal contact with Customers shall have visible identification cards bearing their name and photograph.

4. Every vehicle of the Cable Operator, its contractors and subcontractors, shall be clearly identified to the public as a vehicle of the Cable Operator.

I. Safety.

1. The Cable Operator shall install and locate its facilities, Cable System and equipment in compliance with all federal, State, local and company safety standards, and in such manner as shall not endanger persons or property.

2. Whenever the Cable Operator receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.

J. Complaints to the City.

1. Any Customer shall be entitled to lodge any complaint directly with the City. The Customer may lodge the complaint either by calling the City or by filing a written complaint, by letter or in electronic form.

2. If the City decides that further action is warranted, the City may intercede and attempt to help reach a resolution and/or require the Cable Operator to address the inquiry in a timely manner. Upon request by the City, the Cable Operator shall notify the City of the status of the inquiry and any subsequent resolution.

3. The Cable Operator shall maintain, in a manner consistent with the privacy rights of Customers, an accurate and comprehensive file of complaints regarding the Cable System or the Cable Operator’s operation of the Cable System, by number and type and their disposition; service requests, identifying the number and nature of the requests and their disposition; and outages, Service Interruptions and their disposition.

K. Remedying Violations. If the City has reason to believe that the Cable Operator has failed to comply with any of these Standards, or has failed to perform in a timely manner, or if similar complaints repetitively arise, the City may require in writing that the Cable Operator remedy the noncompliance. If the noncompliance is not remedied to the satisfaction of the City, the City may opt to follow the liquidated

damages procedures or seek other remedies set forth in the Franchise, or pursue any other remedies at law or in equity.

Section 15. Other Authorizations.

Franchisee shall comply with and obtain, at its own expense, all permits, licenses and other authorizations required by federal, State and local laws, rules, regulations and applicable resolutions and ordinances which are now existing or hereafter lawfully adopted.

Section 16. Rules and Regulations of the City.

The right and power is reserved by the City to promulgate such additional rules and regulations as it may find necessary in the exercise of its lawful police powers and in furtherance of the terms and conditions of a Franchise and this Chapter, and as permitted by applicable State and federal law. In the event of a conflict between a Franchise and this Chapter, the Franchise shall govern.

Section 17. Delegation of Powers.

Any right or power of the City may be delegated by the City to any officer, employee, department or board of the City, or to such other person or entity as the City may designate to act on its behalf.

Section 18. Technical Standards.

Franchisee shall construct, install, operate and maintain its Cable System in a manner consistent with all applicable federal, State and local laws and regulations, FCC technical standards and the Franchise.

Section 19. Construction Standards.

A. All facilities constructed or operated under this Chapter shall be installed and maintained at such places in or upon such Rights-of-Way and public places as shall not interfere with the free passage of traffic, and shall conform to federal standards, State requirements and City regulations.

B. Franchisee shall be subject to any and all requirements established by the City with regard to the placement of Franchisee’s facilities and equipment located in the Rights-of-Way and on other public property.

Section 20. Street Cut or Repair.

The Franchisee shall guarantee the durability and structural integrity of any street cut or repair made by it or its agents which is necessary for the construction, installation, operation, repair or maintenance of Franchisee’s facilities, provided that no action by an unrelated third party materially affects the integrity of Franchisee’s street cut or repair. Franchisee shall repair or replace, at no expense to the City, any failed street cut or repair which was completed by Franchisee or Franchisee’s agent(s).

Section 21. Safety Requirements.

The Franchisee shall, at all times, install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injuries to the public. In furtherance thereof, the Franchisee must comply with the City’s traffic control requirements, including, for

example, but without limitation, the use of signal devices, warning signs and flaggers when appropriate. All of Franchisee’s structures, cables, lines, equipment and connections in, over, under and upon the Rights-of-Way and public ways or other places in the Franchise Area, wherever situated or located, shall at all times be kept and maintained in a safe condition.

Section 22. Regulation of Rates and Charges.

The City may regulate Franchisee’s rates and charges to the full extent permitted by law.

Section 23. Discriminatory Practices Prohibited.

A. The Franchisee shall not deny Cable Service or otherwise discriminate against Customers or others on the basis of race, color, religion, national origin, sex, age, disability or other protected classes.

B. Access to Cable Service shall not be denied to any group of potential residential Cable Customers because of the income of the residents of the local area in which such group resides.

Section 24. Equal Employment Opportunity.

The Franchisee shall strictly adhere to and comply with the equal employment opportunity requirements of federal, State and local laws.

Section 25. Reimbursement.

To the extent allowed by applicable law, the City may require a Franchisee to reimburse the City for the City’s reasonable processing and review expenses in connection with a sale or transfer of a Franchise or a change in control of a Franchise or Franchisee. In connection with the foregoing, the City will send Franchisee an itemized description of all such charges, and Franchisee shall pay such amount within thirty (30) days after the receipt of such description.

Section 26. Franchise Renewal.

Franchise renewals shall be conducted in accordance with applicable law. The City and Franchisee, by mutual consent, may enter into renewal negotiations at any time during the term of a Franchise.

Section 27. Franchise Revocation.

Any Franchise granted by the City may be revoked during the period of such Franchise, as provided in the Franchise, subject to the procedural requirements provided for therein. A failure by the Franchisee to comply with any of the material provisions of this Chapter shall be deemed a violation of the City Code.

Section 28. Miscellaneous Provisions.

A. This Chapter shall be construed in a manner consistent with all applicable federal, State and local laws, and shall apply to any Franchise hereafter accepted by a Franchisee.

B. The captions throughout this Chapter are intended to facilitate the reading hereof. Such captions shall not affect the meaning or interpretation of any part of this Chapter.

C. A Franchisee shall not be relieved of its obligations to comply with any or all of the provisions of this Chapter by reason of any failure of the City to demand prompt compliance.

D. The provisions of this Chapter shall apply to all Cable Operators and Cable Systems as permitted under applicable law.

Section 29. Severability.

If any section, subsection, paragraph or provision of this Chapter is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other section, subsection, paragraph or provision of this Chapter, all of which will remain in full force and effect.

PASSED by the City Council and APPROVED by the Mayor this ______ day of _______________, 2008.


By Mayor

ATTEST:

By City Clerk


By City Attorney

Date of Publication:

Effective Date:


ITEM NO: A-5

DATE: July 10, 2008

SUBJECT: Ordinance No. 987-08 Repealing SMC 5.28 (CATV Systems) and Adopting Cable System Regulations


ISSUE:

The issue before the City Council is to have First Reading of Ordinance No. 987-08 (Attachment A) to enact cable system regulations that govern granting cable system franchises and the construction, operation, and maintenance of cable systems and repealing Chapter 5.28 (Attachment B) of the Sultan Municipal Code (SMC).


Have First Reading of Ordinance No. 987-08 an ordinance of the City of Sultan, Washington, enacting cable system regulations that govern the granting of cable system franchises and the construction, operation, and maintenance of cable systems and repealing chapter 5.28 of the sultan municipal code.

SUMMARY:

This proposed action is a result of reviewing and renegotiating the City’s franchise agreement with Comcast.

SMC Chapter 5.28 includes regulations specific to the City’s initial franchise agreement with Broadview Television Co. (d/b/a Viacom Cablevision now Comcast) and general regulations applicable to any cable system operator.

The proposal is to separate the specific negotiated terms with Comcast from the general regulations applicable to any cable system operator now contained in Ordinance No. 987-08.

Action Item A-4 is a separate ordinance approving a five year non-exclusive franchise agreement with Comcast.

The proposed change will keep the general policies for managing cable systems (i.e. regulations) in the Sultan Municipal Code and move specific issues negotiated between the City and Comcast, such as competitive equity, into the Franchise Agreement.

BACKGROUND:

The original cable television franchise agreement with Comcast (Ordinance No. 502) expired on August 8, 2004. The Cable TV ordinance is codified in Section 5.28 of Sultan Municipal Code.

As required by federal law, the City of Sultan and its East County Cable Consortium partners (Snohomish, Monroe, and Lake Stevens) formally began the cable franchise renewal process in April 2004. On June 11, 2004, Comcast Cable Communication responded with a proposal.

Based on information gathered by a 2004 regional needs survey, the Consortium issued a request for proposals for a consultant to negotiate with Comcast on behalf of the Consortium.

Since then, the Consortium hired three firms to provide professional services to renew the franchise agreement and ordinance. The owner of the first firm hired by the Consortium passed away and the services of the second firm were not acceptable to the Consortium.

River Oak Communications was retained by the Consortium in February 2006. The proposed cable system regulations were developed during negotiations with Comcast.

DISCUSSION:

The following table describes the significant changes to the CATV Systems regulations in SMC 5.28 and the proposed Cable System Regulations in Ordinance No. 987-08

SMC 5.28 CATV Systems Ordinance No. 987-08Definitions

Cable System Very limited definition Expanded definition based on federal code

Basic Services, Combined Disposable Income, Gross Revenues, Headend

Included N/A. Moved to franchise agreement

Franchise GrantTerm Included General information.

Specifics provided in the franchise agreement

Hearing Required Required

Application SMC 5.28 CATV Systems Ordinance No. 987-08Not Required Required. Establishes an

application fee of $20,000Franchise Fees and Financial Controls Franchise Fees Payments Maximum Franchise Fee Fee Reports Audits Unlawful to Evade

Franchise fees

Included N/A. Specific requirements moved to franchise. New sections include Maximum Franchise Fee and Unlawful to Evade

Administration and Regulation

Included N/A. Specific requirements moved to franchise

Financial and Insurance RequirementsIndemnification Included N/A. Moved to franchise

Insurance Included - $1,000,000 N/A. Moved to franchise expanded to include $2M general liability and $5M excess liability

Customer Service Standards

Included Expanded to include: Customer Service; Responsiveness; Repiars and outages; Bills, Credits, Refunds and Deposits; Treatment of Property; Services for Customers with Diabilities; Customer Information; Safety; Complaints to the City; Remedy and Violations.

Reports and RecordsIncluded N/A. Moved to franchise

agreement. Expanded to include map of facility locations

ProgrammingIncluded N/A. Moved to franchise.

Requires broad programming categories.

Access SMC 5.28 CATV Systems Ordinance No. 987-08Included as PEG (public education and govt.) $15,000 contribution

N/A. Moved to franchise. $2,994 contribution.

General ROW Use and Construction

Included with specific requirements

Included with very limited requirements. Specific requirements included in franchise agreement.

Technical StandardsIncluded Included with very limited

requirements. Specific requirements included in franchise agreement

Service Extensions and Complimentary Service

Included N/A. Moved to franchise agreement.

Franchise ViolationsIncluded as Revocation for Cause

N/A. Moved to franchise agreement and expanded to include Assessment for Liquidated Damages.

Renewal and TransferIncluded Included with very limited

requirements. Specific requirements included in franchise agreement

FISCAL IMPACT:The proposed Cable System Regulations include a new Application section (Section 7) which requires the applicant for an initial franchise fee of $20,000 to cover the costs associated with process the application including administrative staff review, financial, legal and technical evaluation of the applicant, notice and publication requirements and document preparation expenses.

If the costs exceed the application fee, the applicant pays the difference to the city. If the costs are less than the application fee, then the City will refund the difference to the applicant.

The City spent approximately $xxx over the last four years in legal and technical fees, staff time and expense negotiating the proposed franchise agreement with Comcast.

ANALYSIS:

The City of Sultan has been working with other members of the consortium for over 4 years to complete the cable television franchise agreement with Comcast and revise SMC 5.28 (CATV Systems). The City has assigned a number of different staff people to the task due to staffing changes and work load. Sultan is depending on the expertise of its consortium partners and professional consultant, Tom Duchen to guide the City’s efforts.

The cities of Monroe, Snohomish and Lake Stevens have held first readings to adopt the franchise agreement and corresponding regulations.

The proposed regulations are purposefully limited with specific requirements included in the franchise agreement.

RECOMMENDED ACTION:

Have First Reading of Ordinance No. 987-08 to enact cable system regulations that govern granting cable system franchises and the construction, operation, and maintenance of cable systems and repealing Chapter 5.28 (Attachment B) of the Sultan Municipal Code (SMC).

ATTACHMENTS:

C. Ordinance No. 987-08 Proposed Cable System Regulations - Repeals SMC 5.28

D. Ordinance No. 503 Franchise Agreement (SMC 05.28)

ATTACHMENT AC I T Y O F S U L T A N

Sultan, Washington


AN ORDINANCE OF THE CITY OF SULTAN, WASHINGTON, ENACTING CABLE SYSTEM REGULATIONS THAT GOVERN THE GRANTING OF CABLE SYSTEM FRANCHISES AND THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF CABLE SYSTEMS AND REPEALING CHAPTER 5.28 OF THE SULTAN MUNICIPAL CODE.

WHEREAS, the City wishes: (i) to promote the availability of high-quality and diverse Cable Services to residents, the City and other public institutions; (ii) to promote the availability of diverse information resources to the community; (iii) to promote competitive Cable Services and rates; (iv) to take advantage of technologies; (v) to enhance educational opportunities throughout the community and provide opportunities for building a stronger community; and (vi) to allow flexibility to respond to changes in technology, Customer interests and competitive factors within the cable television industry that will positively affect the health, welfare and well-being of the community;

WHEREAS, the City, pursuant to applicable federal law, is authorized to grant one or more nonexclusive Franchises to construct, operate and maintain Cable Systems within the City; and

WHEREAS, because of the complex and rapidly changing technology associated with Cable Systems, the City Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers that should be vested in the City. It is further the intent of this Chapter and subsequent amendments to provide for and specify the means to attain the best possible Cable Service to the public. It is the further intent of this Chapter to establish regulatory provisions that permit the City to regulate Cable System Franchises to the maximum extent permitted by federal and State law, including, but not limited to, the Cable Act, applicable Federal Communications Commission regulations and Washington law.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SULTAN, WASHINGTON DO ORDAIN AS FOLLOWS:

Section 1. Repeal. Chapter 5.28 of the Sultan Municipal Code is hereby repealed.

Section 2. Short Title. This Chapter shall constitute the “Cable System Regulations” of the City of Sultan and may be referred to as such.

Section 3. Definitions.

For the purposes of this Chapter, the following terms, phrases, words and their derivations shall have the meanings given herein where capitalized. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words otherwise not defined shall be given their common and ordinary meaning. The word “shall” is always mandatory and not merely directory.

1. “Applicant” means any person or entity that applies for an initial Franchise.

2. “Cable Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as any of them may be amended.

3. “Cable Operator” means any person or group of persons, including a Franchisee, who provide(s) Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a Cable System.

4. “Cable Service” means the one-way transmission to Customers of video programming or other programming service, and Customer interaction, if any, which is required for the selection or use of such video programming or other programming service.

5. “Cable System” means any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Customers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves Customers without using any public Right-of-Way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to Customers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with federal statutes and regulations; or (E) any facilities of any electric utility used solely for operating its electric utility systems.

6. “City” means the City of Sultan, a municipal corporation of the State of Washington, and all of the area within its boundaries, as such may change from time to time.

7. “City Council” means the Sultan City Council, or its successor, the governing body of the City.

8. “Customer” means any person who or which elects to subscribe to, for any purpose, Cable Service provided by a Franchisee by means of or in connection with the Cable System and whose premises are physically wired and lawfully activated to receive Cable Service from Franchisee’s Cable System.

9. “Customer Service Representative” or “CSR” shall mean any person employed by the Cable Operator to assist or provide service to Customers, whether by answering public telephone lines, answering Customers’ questions or performing other Customer service related tasks.

10. “Customer Service Standards” means those Customer Service Standards set forth herein and as hereafter amended that are applicable to Cable Operators.

11. “FCC” means the Federal Communications Commission.

12. “Franchise” means an agreement that authorizes a person or entity to construct, operate, maintain or reconstruct a Cable System. Upon the written acceptance by a Franchisee, the agreement constitutes a contract between the City and Franchisee.

13. “Franchise Area” means the area within the jurisdictional boundaries of the City to be served by a Franchisee as specified in the Franchise.

14. “Franchisee” means the person, firm, corporation or entity to whom or which a Franchise, as hereinabove defined, is granted by the City Council under this Chapter and the lawful successor, transferee or assignee of said person, firm, corporation or entity.

15. “Normal Business Hours” shall mean those hours during which most similar businesses in the City are open to serve Customers. In all cases, “Normal Business Hours” must include some evening hours at least one night per week and/or some weekend hours.

16. “Normal Operating Conditions” shall mean those service conditions that are within the control of the Cable Operator. Those conditions that are not within the control of the Cable Operator include, but are not limited to, natural disasters, civil disturbances, power outages and severe or unusual weather conditions. Those conditions that are ordinarily within the control of the Cable Operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the Cable System.

17. “Right-of-Way” or “Rights-of-Way” means all of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and are located within the City: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property and areas.

18. “Service Interruption” shall mean the loss of picture or sound on one or more cable channels.

Section 4. Franchise Grant.

It is unlawful to engage in or commence construction, operation or maintenance of a Cable System in the City without a Franchise issued under this Chapter. The City Council may, by ordinance, issue a nonexclusive Franchise to construct, operate and maintain a Cable System within the City to any person or entity, whether operating under an existing Franchise or not, who applies for authority to furnish Cable Service which complies with the terms and conditions of this Chapter, and provided that such person or entity also agrees to comply with all of the provisions of the Franchise. However, this shall not be deemed to require the grant of a Franchise to any particular person or entity. The City Council may restrict the number of Franchises should it determine such a restriction would be in the public interest.

Section 5. Franchise Purposes.

A Franchise granted by the City under the provisions of this Chapter shall:

A. Permit the Franchisee to engage in the business of operating a Cable System and providing Cable Service within the City;

B. Permit the Franchisee to erect, install, construct, repair, reconstruct, replace and retain wires, cables, related electronic equipment, conduits and other property in connection with the operation of the Cable System in, on, over, under, upon, along and across Rights-of-Way within the City; and

C. Set forth the obligations of the Franchisee under the Franchise.

Section 6. Nonexclusive Franchise.

Any Franchise granted pursuant to this Chapter shall be nonexclusive and not preclude the City from granting other or future Franchises or permits.

Section 7. Application.

A. An Applicant for an initial Franchise shall submit to the City a written application on a form provided by the City, at the time and place specified by the City for accepting applications, and accompanied by the designated application fee. An application fee in the amount of $20,000 shall accompany the application to cover costs associated with processing the application, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the Applicant, notice and publication requirements, and document preparation expenses. In the event such costs exceed the application fee, the Applicant shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs. Conversely, if such costs are less than the application fee, the City shall refund the difference to the Applicant.

B. An application for an initial Franchise for a Cable System shall contain, at a minimum:

1. A statement as to the proposed Franchise and information relating to the characteristics and location of the proposed Cable System;

2. A resume of prior history of the Applicant, including the expertise of the Applicant in the Cable System field;

3. Information demonstrating the Applicant’s legal, technical and financial ability to construct and operate the proposed Cable System;

4. A list of the partners, general and limited, of the Applicant, if a partnership, members, if a limited liability company, or the percentage of stock owned or controlled by each stockholder having a five percent (5%) or greater interest, if a corporation;

5. A list of officers, directors and key employees of the Applicant, together with a description of the background and experience of all such persons;

6. The names and addresses of any parent entity or subsidiary of the Applicant or any other business entity owning or controlling the Applicant in whole or in part, or owned or controlled in whole or in part by the Applicant;

7. A proposed construction and service schedule;

8. Any other reasonable information that the City may request.

The City shall be allowed the opportunity to ask relevant follow-up questions and obtain further information from whatever source. A refusal by an Applicant to cooperate or provide requested information is sufficient grounds for the City to deny an application.

C. Upon receipt of an application for an initial Franchise and after obtaining any additional information the City in its sole discretion deems appropriate from any source, a hearing shall be scheduled to allow public comment. At the hearing, the City Council shall receive public comment regarding the following:

1. Whether the public will benefit from granting a Franchise to the Applicant;

2. Whether the Applicant appears to have adequate legal, financial and technical qualifications and capabilities to build, operate and maintain a Cable System in the City;

3. Whether the Applicant has any conflicting interests, either financial or commercial, that will be contrary to the interests of the City;

4. Whether the Applicant will comply with all of the terms and conditions placed upon a Franchisee by the Franchise, this Chapter and other lawfully applicable local laws and regulations;

5. Whether the Applicant will comply with all relevant federal and State laws and regulations pertaining to the construction, operation and maintenance of the Cable System.

D. Within the timeframe prescribed by applicable law, the City Council shall decide whether to grant a Franchise and on what conditions. The City Council’s decision shall be based upon the application, any additional information submitted by the Applicant or obtained by the City from any source and public comments. The City Council may grant one (1) or more Franchises or may decline to grant any Franchise.

Section 8. Duration.

The term of any Franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall be specified in the Franchise. The effective date of any Franchise shall be as specified in the Franchise.

Section 9. Police Powers.

In accepting any Franchise, the Franchisee acknowledges that its rights thereunder are subject to the police powers of the City to adopt and enforce ordinances necessary for the health, safety and welfare of the public, and it agrees to comply with all applicable laws enacted by the City pursuant to such power.

Section 10. Use of Rights-of-Way.

For the purposes of operating and maintaining a Cable System in the City, a Franchisee may place and maintain within the Rights-of-Way such property and equipment as are necessary and appurtenant to the operation of the Cable System. Prior to construction of the Cable System in the Rights-of-Way, the Franchisee shall procure all necessary permits, pay all applicable fees in connection therewith and comply with all applicable laws, regulations, resolutions and ordinances, including, but not limited to, land use and zoning requirements.

Section 11. Pole or Conduit Agreements.

No Franchise shall relieve Franchisee of any of its obligations involved in obtaining pole or conduit agreements from any department of the City, any utility company or from others maintaining facilities in the Rights-of-Way.

Section 12. Franchise Fees.

The Franchisee shall pay the City franchise fees in accordance with the terms of the Franchise and applicable law.

Section 13. Taxes.

Nothing in this Chapter shall limit the Franchisee’s obligation to pay applicable local, State and federal taxes.

Section 14. Customer Service Standards.

A. Policy. A Cable Operator will first resolve Customer inquiries and complaints without delay and without involvement of the City. Where a given complaint is not addressed by the Cable Operator to the Customer’s satisfaction, the City may intervene.

These standards are intended to be of general application. A Cable Operator is free to exceed these standards for the benefit of its Customers. However, the Cable Operator shall be relieved of obligations hereunder if it is unable to perform due to a force majeure event affecting a significant portion of the Franchise Area.

B. Customer Service.

1. Courtesy. All employees of the Cable Operator shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with Customers.

2. Availability and Accessibility – In Person. The Cable Operator must maintain, at a minimum, one (1) customer service center located in Everett. This customer service location shall at all times allow Customers to make payments, return equipment or get assistance from knowledgeable staff. The customer service center shall be open Monday through Saturday, excluding legal holidays, with sufficient hours necessary to meet Customer demand. The customer service center will be staffed to meet all Customer needs with on-site Customer Service Representatives. If, however, the customer service center is required to relocate, the Cable Operator shall be allowed a reasonable period of time to establish a new location.

3. Availability and Accessibility – On the Telephone. A CSR will be available to respond to Customer inquiries during Normal Business Hours. The Cable Operator shall maintain local or toll free telephone access lines that shall be available during Normal Business Hours for service/repair requests and billing inquiries.

The Cable Operator shall retain sufficient CSRs and telephone line capacity to ensure that, during Normal Operating Conditions, telephone calls to service/repair and billing inquiry lines are answered within thirty (30) seconds or less, and that any transfers are made within thirty (30) seconds. This standard shall be met no less than ninety (90) percent of the time, measured on a quarterly basis under Normal Operating Conditions. Under Normal Operating Conditions, the total number of calls receiving busy signals shall not exceed three percent (3%) of the total telephone calls.

The Cable Operator shall not be required to acquire equipment or perform surveys to measure compliance with any of the telephone answering standards above unless and until the City requests such actions based on a historical record of Customer complaints indicating a clear failure to comply.

C. Responsiveness.

1. The Cable Operator shall complete all standard aerial installations within seven (7) days after an order has been placed, unless otherwise requested by the Customer. The Cable Operator shall schedule all standard underground installations within seven (7) days after an order has been placed, unless otherwise requested by the Customer. “Standard” installations shall include those that are located within 125 aerial feet or sixty (60) underground trench feet of the Cable Operator’s distribution system. This standard must be met ninety-five percent (95%) of the time under Normal Operating Conditions as measured on a quarterly basis. If the Customer requests a non-standard installation, or the Cable Operator determines that a non-standard installation is required, the Cable Operator shall provide the Customer in advance with a total installation cost estimate and an estimated date of completion.

2. Under Normal Operating Conditions, all temporary cable drops shall be converted to a permanent drop within no more than three (3) calendar weeks from the initial installation or at a time mutually agreed upon between the Cable Operator and Customer.

3. Customers requesting installation of Cable Service or repair service to an existing installation may choose any available four (4) hour block of time for the appointment during Normal Business Hours.

4. The Cable Operator shall be deemed to have responded to a request for service under the provisions of this subsection when a technician arrives within the agreed upon time. If the Customer is absent when the technician arrives, the technician shall leave written notification of timely arrival. A record that notice was provided shall be kept by the Cable Operator.

5. If a Cable Operator representative fails to keep an installation or service appointment for any reason, the Cable Operator will contact the Customer before the end of the scheduled appointment and reschedule the appointment at a time convenient for the Customer.

6. The Cable Operator shall respond to a Customer’s letter in writing within two (2) weeks of receipt of the letter. The Cable Operator shall initiate resolution to a Customer’s inquiry, complaint, general question or comment made by telephone or e-mail within forty-eight (48) hours.

7. Any difficulties that cannot be resolved by the CSR shall be referred to the appropriate supervisor who shall use his/her best efforts to contact the Customer within twenty-four (24) hours of initial contact and resolve the problem within a mutually agreeable timeframe.

D. Repairs and Outages.

1. The Cable Operator shall interrupt service only for good cause and for the shortest time possible. Scheduled interruptions that the Cable Operator anticipates will last more than four (4) hours shall occur during periods of minimum use of the Cable System as reasonably determined by the Cable Operator.

2. If a Customer calls to report poor signal quality or interruptions attributable to the Cable Operator’s equipment, the Cable Operator shall begin working on the problem no later than the next day following the Customer’s call, provided that the Customer is available or at such later time as is convenient for the Customer. If an appointment is necessary, the Customer may choose a four (4) hour block of time during Normal Business Hours.

3. Upon discovery of an outage affecting three (3) or more Customers, the Cable Operator shall initiate its outage repair process within two (2) hours, under Normal Operating Conditions.

4. A Cable Operator shall initiate repairs to Customer reported Service Interruptions, for any cause beyond the control of the Cable Operator, within twenty-four (24) hours after the conditions beyond its control have been corrected.

5. Under Normal Operating Conditions, if after twenty-four (24) hours service is not restored to a Customer, a Cable Operator shall, upon a Customer’s request, provide a refund or credit or other compensation of equal or greater value.

6. The Cable Operator will track and record all outages and Service Interruptions that occur within the Franchise Area.

E. Bills, Credits, Refunds and Deposits. If a Customer requests disconnection of any or all services, billing for affected services shall end on the same day as the request, or on the future date for which the disconnect is ordered. However, the Customer may continue to be billed for equipment until returned to the Cable Operator. The Cable Operator shall issue a credit or refund to a Customer within thirty (30) business days after the close of the billing cycle following the return of the equipment and request for disconnection. If a Customer was required to provide a deposit, that deposit must be returned when appropriate.

F. Treatment of Property.

1. Removal or trimming of trees and shrubs in the Right-of-Way will be subject to the regulations of the City.

2. The Cable Operator shall repair any damage or restore any property to as good a condition as before the work causing such damage or disturbance was initiated. The Cable Operator shall repair, replace or compensate all property owners for damages resulting from the Cable Operator’s installation, construction, service or repair activities.

3. Except in the case of an emergency involving public safety or Service Interruption to a large number of Customers, the Cable Operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided that, in the case of planned construction operations, such notice shall be delivered or provided at least twenty-four (24) hours prior to entry. All work done in the Right-of-Way shall be subject to time requirements of the permit.

4. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law.

5. For major construction or installation projects, the Cable Operator shall notify by mail or door hanger the adjacent property owners/legal tenants in advance of the Right-of-Way work. In the case of an emergency, the Cable Operator shall attempt to contact the property owner or legal tenant in person, and in the event personal contact is not made, the Cable Operator shall leave a door hanger notice.

6. The Cable Operator shall clean all areas surrounding any work site of debris caused by the Cable Operator’s activities.

G. Services for Customers with Disabilities.

1. For any Customer with a disability, the Cable Operator shall upon a Customer request and at no charge deliver and/or pick up converters at the Customer’s home.

2. The Cable Operator shall provide TDD/TYY service with trained operators who can provide assistance for hearing-impaired Customers at no charge.

3. The Cable Operator shall comply with the Americans with Disabilities Act.

H. Customer Information.

1. The Cable Operator shall provide to Customers an accurate, comprehensive service agreement and Customer installation packet upon installation, including the following information:

a. Products and services offered by the Cable Operator, including channel positions of programming carried on the Cable System.

b. The Cable Operator’s complete range of service options and the prices for those services and conditions of subscription to programming and other services.

c. Installation and service maintenance policies, including the Customer’s and Cable Operator’s responsibilities for equipment.

d. Billing and complaint procedures for investigation and resolution of Customer service complaints, including the address and telephone number of the Cable Operator’s office(s), the Cable Operator’s policies on deposits, credit balances and returned check charges.

e. Policies concerning protection of Customer privacy as required under law.

f. The availability of a parental control/lock out device and the procedures for channel blocking.

g. Service termination procedure.

h. A description of the manner that will be used to provide notice of changes in rates, services or service terms and conditions.

i. The phone number of the Customer Service Department that is responsible for handling cable questions and complaints for the Cable Operator. This information shall be prominently displayed in the installation packet.

2. The Cable Operator shall provide Customers with written notification of any changes in rates, programming, services or channel positions as soon as possible in writing. Customers shall be given a description of the changes, a phone number for questions and the effective date. Notice must be given to Customers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Cable Operator.

3. All officers, agents and employees of the Cable Operator, its contractors and subcontractors who are in personal contact with Customers shall have visible identification cards bearing their name and photograph.

4. Every vehicle of the Cable Operator, its contractors and subcontractors, shall be clearly identified to the public as a vehicle of the Cable Operator.

I. Safety.

1. The Cable Operator shall install and locate its facilities, Cable System and equipment in compliance with all federal, State, local and company safety standards, and in such manner as shall not endanger persons or property.

2. Whenever the Cable Operator receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.

J. Complaints to the City.

1. Any Customer shall be entitled to lodge any complaint directly with the City. The Customer may lodge the complaint either by calling the City or by filing a written complaint, by letter or in electronic form.

2. If the City decides that further action is warranted, the City may intercede and attempt to help reach a resolution and/or require the Cable Operator to address the inquiry in a timely manner. Upon request by the City, the Cable Operator shall notify the City of the status of the inquiry and any subsequent resolution.

3. The Cable Operator shall maintain, in a manner consistent with the privacy rights of Customers, an accurate and comprehensive file of complaints regarding the Cable System or the Cable Operator’s operation of the Cable System, by number and type and their disposition; service requests, identifying the number and nature of the requests and their disposition; and outages, Service Interruptions and their disposition.

K. Remedying Violations. If the City has reason to believe that the Cable Operator has failed to comply with any of these Standards, or has failed to perform in a timely manner, or if similar complaints repetitively arise, the City may require in writing that the Cable Operator remedy the noncompliance. If the noncompliance is not remedied to the satisfaction of the City, the City may opt to follow the liquidated damages procedures or seek other remedies set forth in the Franchise, or pursue any other remedies at law or in equity.

Section 15. Other Authorizations.

Franchisee shall comply with and obtain, at its own expense, all permits, licenses and other authorizations required by federal, State and local laws, rules, regulations and applicable resolutions and ordinances which are now existing or hereafter lawfully adopted.

Section 16. Rules and Regulations of the City.

The right and power is reserved by the City to promulgate such additional rules and regulations as it may find necessary in the exercise of its lawful police powers and in furtherance of the terms and conditions of a Franchise and this Chapter, and as permitted by applicable State and federal law. In the event of a conflict between a Franchise and this Chapter, the Franchise shall govern.

Section 17. Delegation of Powers.

Any right or power of the City may be delegated by the City to any officer, employee, department or board of the City, or to such other person or entity as the City may designate to act on its behalf.

Section 18. Technical Standards.

Franchisee shall construct, install, operate and maintain its Cable System in a manner consistent with all applicable federal, State and local laws and regulations, FCC technical standards and the Franchise.

Section 19. Construction Standards.

A. All facilities constructed or operated under this Chapter shall be installed and maintained at such places in or upon such Rights-of-Way and public places as shall not interfere with the free passage of traffic, and shall conform to federal standards, State requirements and City regulations.

B. Franchisee shall be subject to any and all requirements established by the City with regard to the placement of Franchisee’s facilities and equipment located in the Rights-of-Way and on other public property.

Section 20. Street Cut or Repair.

The Franchisee shall guarantee the durability and structural integrity of any street cut or repair made by it or its agents which is necessary for the construction, installation, operation, repair or maintenance of Franchisee’s facilities, provided that no action by an unrelated third party materially affects the integrity of Franchisee’s street cut or repair. Franchisee shall repair or replace, at no expense to the City, any failed street cut or repair which was completed by Franchisee or Franchisee’s agent(s).

Section 21. Safety Requirements.

The Franchisee shall, at all times, install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injuries to the public. In furtherance thereof, the Franchisee must comply with the City’s traffic control requirements, including, for example, but without limitation, the use of signal devices, warning signs and flaggers when appropriate. All of Franchisee’s structures, cables, lines, equipment and connections in, over, under and upon the Rights-of-Way and public ways or other places in the Franchise Area, wherever situated or located, shall at all times be kept and maintained in a safe condition.

Section 22. Regulation of Rates and Charges.

The City may regulate Franchisee’s rates and charges to the full extent permitted by law.

Section 23. Discriminatory Practices Prohibited.

A. The Franchisee shall not deny Cable Service or otherwise discriminate against Customers or others on the basis of race, color, religion, national origin, sex, age, disability or other protected classes.

B. Access to Cable Service shall not be denied to any group of potential residential Cable Customers because of the income of the residents of the local area in which such group resides.

Section 24. Equal Employment Opportunity.

The Franchisee shall strictly adhere to and comply with the equal employment opportunity requirements of federal, State and local laws.

Section 25. Reimbursement.

To the extent allowed by applicable law, the City may require a Franchisee to reimburse the City for the City’s reasonable processing and review expenses in connection with a sale or transfer of a Franchise or a change in control of a Franchise or Franchisee. In connection with the foregoing, the City will send Franchisee an itemized description of all such charges, and Franchisee shall pay such amount within thirty (30) days after the receipt of such description.

Section 26. Franchise Renewal.

Franchise renewals shall be conducted in accordance with applicable law. The City and Franchisee, by mutual consent, may enter into renewal negotiations at any time during the term of a Franchise.

Section 27. Franchise Revocation.

Any Franchise granted by the City may be revoked during the period of such Franchise, as provided in the Franchise, subject to the procedural requirements provided for therein. A failure by the Franchisee to comply with any of the material provisions of this Chapter shall be deemed a violation of the City Code.

Section 28. Miscellaneous Provisions.

A. This Chapter shall be construed in a manner consistent with all applicable federal, State and local laws, and shall apply to any Franchise hereafter accepted by a Franchisee.

B. The captions throughout this Chapter are intended to facilitate the reading hereof. Such captions shall not affect the meaning or interpretation of any part of this Chapter.

C. A Franchisee shall not be relieved of its obligations to comply with any or all of the provisions of this Chapter by reason of any failure of the City to demand prompt compliance.

D. The provisions of this Chapter shall apply to all Cable Operators and Cable Systems as permitted under applicable law.

Section 29. Severability.

If any section, subsection, paragraph or provision of this Chapter is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other section, subsection, paragraph or provision of this Chapter, all of which will remain in full force and effect.

PASSED by the City Council and APPROVED by the Mayor this ______ day of _______________, 2008.


By Mayor

ATTEST:

By City Clerk


By City Attorney

Date of Publication:

Effective Date:

ATTACHMENT B

Sultan Municipal Code

Chapter 5.28CATV SYSTEMS

5.28.010 Definitions.For the purposes of this chapter, the following words and phrases shall

have the meanings set out in this section.

A. “Act” means the Cable Communications Policy Act of 1984 and any subsequent amendments.

B. “Addressability” means the ability of a system allowing the franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming.

C. “Affiliate” means an entity which owns or controls, is owned or controlled by, or is under common ownership with franchisee.

D. “Applicant” means any person or entity that applies for a franchise.

E. “Basic services” means those broadcast and nonbroadcast services provided by the cable franchisee at the lowest monthly charge as defined by the Act or rules now or subsequently adopted by the FCC.

F. “Cable services” means (1) the one-way transmission to subscriber of video programming or other programming service, and (2) subscriber interaction, if any, which is required for the selection by the subscriber of such video programming or other programming service.

G. “CATV” means a community antenna television system as hereinafter defined.

H. “Channel” means a single path or section of the spectrum which carries a television signal.

I. “Combined disposable income” means the disposable income of the person claiming a rate discount, plus the disposable income of his or her spouse, and the disposable income of each co-tenant occupying the residence during the preceding calendar year, less amounts paid by the person claiming the rate discount of his or her spouse during the previous year for the treatment or care of either person in a nursing home.

J. “Community antenna television system,” “cable television system” or “system” means a system of antennas, cables, wires, lines, towers, transmission lines, equipment or facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying, scrambling and distributing audio, video and other forms of electronic or electrical signals, located in whole or in part in the city.

K. “Converter” means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and with an appropriate channel selector which also permits a subscriber to view all signals delivered at designated converter dial locations.

L. “Council” means the present governing body of the city or any future board constituting the legislative body of the city.

M. “FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

N. “Franchise” means the nonexclusive right or authority to construct, operate and maintain a cable television system by use of city-owned rights-of-way, easements or other publicly owned properties.

O. “Franchisee” means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in city ordinance.

P. “Gross subscriber revenues” means income collected by franchisee for the provision of cable communications service; including basic service, premium services, tiered services, advertising, leased access channels, and all other sources derived from the operation of a cable communications system utilizing the public rights-of-way. Gross subscriber revenues shall not include uncollectable subscriber revenues, nor receipts attributed to taxes on the services furnished by the franchisee and imposed directly on any subscriber in any county, state or other governmental unit and collected by the franchisee for such governmental unit.

Q. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

R. “Interactive services” means services provided to subscribers where the subscriber either (1) both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other location for any purpose.

S. “Office” means the person or entity designated by the city as being responsible for the administration of the franchise for the city.

T. “Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

U. “Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of a CATV business in the city under the authority of a franchise granted pursuant to this chapter.

V. “Public way” means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the city in the service area which shall entitle the city and the franchisee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the city within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the city and the franchisee to the use thereof for the purpose of installing or transmitting franchisee’s cable service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, compliances, attachments and other property as may be ordinarily necessary and pertinent to the cable system.

W. “Subscriber” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission.

X. “City” means the city of Sultan, a municipal corporation of the state of Washington. (Ord. 502 § 1, 1988)

5.28.020 Terms of franchise.A. Authority to Grant Franchises or Licenses for Cable Television. It

shall be unlawful to engage in or commence construction, operation or maintenance of a cable communications system without a franchise issued under this chapter. The council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable communications system which complies with the terms and conditions of this chapter. Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits or preclude the city from using any roads, rights-of-way, streets or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the city to make all necessary

changes, as the city in its sole discretion shall decide, including the dedication, establishment, maintenance and improvements of all new rights-of-way and thoroughfares and other public properties of any type. In the event the city grants another cable franchise, the new franchise shall be granted on the same terms as the existing franchise.

B. Incorporation by Reference. The provisions of this chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder.

C. Nature and Extent of the Grant. Any franchise granted hereunder by the city shall authorize the franchisee, subject to the provisions herein contained:

1. To engage in the business of operating and providing cable service and the distribution and sale of such service to subscribers within the city;

2. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures and other property as may be necessary and appurtenant, to the cable communications system; and, in addition, so to use, operate and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee franchised or permitted to do business in the city. No privilege or exemption shall be granted or conferred upon franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

D. Term. This franchise or renewal and all rights, privileges, obligations and restrictions pertaining thereto shall commence on the effective date of Ordinance No. 502 and shall expire on August 8, 2004. Notwithstanding SMC 5.28.360 relating to franchise renewal, negotiations for renewal of the franchise agreement shall commence in the year 2001. (Ord. 699-99 § 1; Ord. 502 § 2, 1988)

5.28.030 Hearing.Prior to the granting of a franchise, the city council shall conduct a

public hearing to determine the following:

A. That the public will be benefited by the granting of a franchise to the applicant;

http://srch.mrsc.org:8080/code/DocView/sultanmcmc/#5.28.360

B. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

C. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city;

D. That the applicant will comply with all terms and conditions placed upon the franchisee by this chapter;

E. That the applicant is capable of complying with all relevant federal, state and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise. (Ord. 502 § 3, 1988)

5.28.040 Acceptance.A. No franchise granted pursuant to the provisions of this chapter shall

become effective unless and until the ordinance granting same has become effective.

B. Within 30 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the franchisee shall file with the city clerk/treasurer its written acceptance, in form satisfactory to the city attorney, of the franchise, together with the insurance policies required by SMC 5.28.430. (Ord. 502 § 4, 1988)

5.28.050 Police powers.In accepting any franchise, the franchisee acknowledges that its rights

hereunder are subject to the police power of the city to adopt and enforce general ordinances necessary to the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. (Ord. 502 § 5, 1988)

5.28.060 Rules and regulations by the city.A. In addition to the inherent powers of the city to regulate and control

any franchise it issues, the authority granted to it by the Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers provided they are consistent with the terms and conditions of this chapter and provided further they do not increase the material burdens nor diminish the rights of the franchisee.

B. The city council reserves the right to delegate its authority for franchise administration to a designated agent. (Ord. 502 § 6, 1988)

5.28.070 Technical standards.


A. Franchisee shall comply with FCC Rules, Part 76, Subpart K, Section 76.601 through 76.610 and as amended, at the minimum, the following:

1. Applicable city, county, state and national/federal codes and ordinances;

2. Applicable Utility Joint Attachment Practices;

3. The National Electrical Safety Code; ANSI C2;

4. Local Utility Code Requirements;

5. Local rights-of-way procedures;

6. NCTA Manual 741 Signal Leakage and Interference Control.

B. Preventative Maintenance. A comprehensive routine preventative maintenance program shall be developed, effected and maintained for each system by the respective franchisee to ensure continued top quality cable communications operating standards in conformance with FCC Part 76. (Ord. 502 § 7, 1988)

5.28.080 Coverage.Within 12 months from the date of the franchise, franchisee shall have

completed the installation of cable in all areas of the city subject to the condition of SMC 5.28.190. All annexed and newly developed areas shall be provided cable service, if such areas are contiguous to the city limits, within six months from the time of obtaining necessary permits subject to the same conditions. (Ord. 502 § 8, 1988)

5.28.090 Public buildings.Franchisee shall provide without charge for installation, basic service,

outlet and converter at such public buildings as specified in Table 5.28.090 and that may be constructed during the period of the franchise provided that such installation will not require undergrounding cable through or under pavement or other physical obstructions other than open earth, extension of the trunk or distribution lines from the nearest point of connection to the existing cable system, or other modifications, additions or improvements to the existing cable television system which would cost franchisee in excess of normal installation costs.

Table 5.28.090

City-owned and maintained buildings include the following:

Building Address

Sultan Library 515 Main Street

Museum 102 4th Street


City Hall 703 1st Street

Barricks Building 705 1st Street

Community Meeting Room 707 1st Street

Fire Station 304 Alder Street

School District Properties:

Administration Building 514 4th Street

Grade School 415 Date Avenue

Present High School –Middle School

301 High Street

New High School (Jan. 1988) 13715 310th Ave. SE

(Ord. 502 § 9, 1988)

5.28.100 Parental control devices.Franchisee will make available a device by which the subscriber can

prohibit viewing of a particular cable service during periods selected by that subscriber. The fee for this device will be a one-time charge equal to no more than franchisee’s actual cost for the device. (Ord. 502 § 10, 1988)

5.28.110 Other interactive services.The city may, at its discretion, require that the franchisee provide such

services as addressability, security, computer interaction, banking, shopping, etc. upon a “two-way” basis at such time as 50 percent of comparable cable systems in cities of comparable size in the state of Washington as determined by trade reference books have installed such system. Demographic factors to be considered are size of the subscriber base and the number of dwelling units passed. Such system upgrade will be completed within 24 months of such final notice and determination to the franchisee. (Ord. 502 § 11, 1988)

5.28.120 Emergency power.Franchisee shall provide a standby power system to automatically

activate equipment at the headends in the event of a primary electrical failure. Such system shall be operational within 36 months from the effective date of the franchise. (Ord. 502 § 12, 1988)

5.28.130 Emergency override.A. The franchisee will provide emergency override capability from its

headend via telephone line from the city of Sultan within 24 months; provided no objections are received from other communities served by the same headend. The city shall file with the franchisee a list of authorized officials who will be granted permission to request the franchisee to transmit such information. Such a request will be made solely in case of extreme local emergency as a form of disaster control only when all other means of notification are inadequate in view of the urgency of a communications crisis. The city of Sultan shall accept full responsibility for any legal consequences that may occur through its use of such system.

B. Extension of the Emergency Override System. In support of the enhancement, the emergency communication goals of the consortium and with permission of the city of Sultan, franchisee will expand the emergency override capability currently available in the city of Sultan to all consortium member communities. The consortium shall file with the franchisee a list of authorized officials who will be granted permission to access and utilize the system. Access of the emergency override system will be made solely in the case of extreme local emergency as a form of disaster control and/or warning only when all other means of notification are inadequate in view of the urgency of the communication crisis. The consortium shall save, defend, indemnify and hold harmless franchisee for any claims or judgments arising out of operation of the emergency override system. Also, the consortium agrees to test the system yearly and at a time that is least disruptive to the communities. (Ord. 699-99 § 4; Ord. 502 § 13, 1988)

5.28.135 PEG equipment and support.The franchisee shall contribute to the consortium certain equipment,

software and user training to initiate and support public, educational and governmental access not to exceed $15,000 and as specified in Exhibit A, Capital Contribution*. The cost of additional capital equipment, software or training beyond that described above to enhance PEG access requested by the consortium shall be allocated to the member communities on a per subscriber basis. Once franchisee completes its initial PEG contribution for a PEG access with equipment, software and training, the city agrees that such additional allocated equipment costs paid by the franchisee as the capital contribution may be added to the price of cable services and recovered from customers in the city as “external costs,” as such term is used in 47 CFR Section 87.022 on the date of the agreement. In addition, all amounts paid as the capital contribution may be separately stated on customer’s bill as permitted in 47 CFR Section 76.985. (Ord. 699-99 § 3)

*Code reviser’s note: Exhibit A, attached to Ordinance 699, is available in the office of the city clerk/treasurer.

5.28.140 Construction standards.All facilities constructed under this chapter shall be placed and

maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of state of Washington and city regulations pertaining to such construction. Whenever the city imposes as a condition to its approval of a tentative map or a parcel map a requirement that necessitates replacing, undergrounding or permanently or temporarily relocating existing facilities of the cable system, the builder, developer or subdivider shall reimburse the franchisee for all costs of the replacement, undergrounding or relocation. (Ord. 502 § 14, 1988)

5.28.150 Construction notification.The city may establish reasonable minimum requirements for advance

notification to residents adjacent to proposed construction areas. (Ord. 502 § 15, 1988)

5.28.160 Undergrounding.In those areas and portions of the city where the transmission or

distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities in the same area underground. Amplifiers and associated equipment in franchisee’s transmission and distribution lines may be in appropriate housing upon the surface of the ground as approved by the city. (Ord. 502 § 16, 1988)

5.28.170 Safety requirements.A. Franchisee shall, at all times, employ professional care and shall

install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.

B. All structures and all lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys and public ways or places of the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

C. The city reserves the general right to see that the system of the franchisee is constructed and maintained in a safe condition. If an unsafe

condition is found to exist by the city, it may order the franchisee to make necessary repairs within 30 days from the receipt of the city’s notification thereof, the city may make the repairs itself or have them made, and collect all reasonable costs thereof from the franchisee. (Ord. 502 § 17, 1988)

5.28.180 New developments.A. The developer or property owner shall, at its cost, provide the

franchisee with sufficient space for conduit, vaults, pedestals and laterals. The franchisee shall provide specifications for such construction as required.

B. The franchisee shall be given written notification of when such trenches will be open. If the franchisee fails to place its equipment in such open construction after five working days, the cost of new trenching shall be borne by the franchisee.

C. The franchisee’s amplifiers and essential connection thereto may be placed in appropriate housing above ground as approved by the city. In any case, the city shall not be responsible for any costs in placing such equipment underground. (Ord. 502 § 18, 1988)

5.28.190 Line extension.A. Franchisee agrees to provide cable communications service to all

areas within the city, subject to the condition that there are at least 50 dwelling units per street mile or one such unit within 150 feet of franchisee’s distribution system as measured from existing system or such ratio thereof.

B. In the event request is made for service by a resident living in an area not meeting such criteria, the franchisee may make such installation available to the requesting subscriber on a time and material cost basis. (Ord. 502 § 19, 1988)

5.28.200 Building moving.Whenever any person shall have obtained permission from the city to

use any street for the purpose of moving any building, the franchisee, upon seven days’ written notice from the city, shall raise or remove, at the expense of that person desiring to move the building, any of its or their wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with regulations and general ordinances of the city. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference with the lines of franchisee and other franchise holders. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee of and from any and all damages or claims of whatsoever kind or nature caused

directly or indirectly for such temporary arrangement of the lines and poles of the franchisee. (Ord. 502 § 20, 1988)

5.28.210 Tree trimming.With city approval, which shall not be unreasonably withheld, the

franchisee shall have the authority to trim trees upon and overhanging streets and public ways and places of the franchise area so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee and if necessary to clear the microwave path and shall be responsible for debris removal from such activities. At the option of the city, and with advance written notice to the franchisee, such trimming may be done by it or under its supervision and direction, with reasonable costs to be borne by franchisee. (Ord. 502 § 21, 1988)

5.28.220 Rates.Within 60 days after the grant of any franchise hereunder, franchisee

will file with the city a complete schedule of all rates to be charged to all subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by franchisee, franchisee shall provide the city and all subscribers a minimum of 30 days’ prior written notice of such change. However, this requirement shall not pertain to pay-per-view and other like services. (Ord. 502 § 22, 1988)

5.28.230 Discounts.Franchisee shall offer a discount to those individuals permanently

disabled or 62 years or older who are the legal owner or lessee/tenant of their residence; provided, that their combined disposable income from all sources does not exceed the federal poverty level for the current and preceding calendar year. Such discounts will consist eight and one-half percent from the normal charge for basic residential services as well as a 50 percent reduction in normal residential installation charges. The city of Sultan or its designee shall be responsible for certifying to the franchisee that such applicants conform to the specified criteria. (Ord. 502 § 23, 1988)

5.28.240 Franchise fee.Franchisee shall pay to the city a sum equal to five percent of gross

revenues as defined in this chapter. Such payments will be made on a quarterly basis. (Ord. 502 § 24, 1988)

5.28.250 Record inspection.Subject to statutory and constitutional limits and reasonable advance

notice, the city reserves the right to inspect the records of the franchisee at any time during normal business hours; provided, the city shall maintain

the confidentiality of any trade secrets or other proprietary information in the possession of the franchisee. Such documents shall include such information as financial records, subscriber records within the context of Section 631 of the Act, tax returns and plans. Such data, however, is understood to be limited to such information that pertains solely to the operation and maintenance of the cable television system within the city of Sultan. (Ord. 502 § 25, 1988)

5.28.260 Reports.The franchisee shall furnish, upon request, a report of its activities as

appropriate. Such report may include:

A. Most recent annual report;

B. A copy of the 10-K report, if required by the Securities and Exchange Commission;

C. The number of homes passed;

D. The number of subscribers with basic services;

E. The number of subscribers with premium services;

F. The number of hookups in period;

G. The number of disconnects in period;

H. Total number of miles of cable in city;

I. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution;

J. A statement of its current billing practices;

K. A current copy of its subscriber service contract;

L. Report on operations; such other reports with respect to its operation, affairs, transactions or property that may be appropriate. (Ord. 502 § 26, 1988)

5.28.270 Periodic meetings.Upon request, the franchisee shall meet with designated city officials

and/or designated representative(s) to review the performance of the franchisee over the preceding period. The subjects shall include, but not be limited to those items covered in the periodic reports and performance tests. (Ord. 502 § 27, 1988)

5.28.280 Performance tests.A. If the city determines that reasonable evidence exists of inadequate

cable system performance pursuant to SMC 5.28.070, it may require franchisee to perform tests and analyses directed toward such suspected inadequacies at the franchisee’s own expense. Franchisee shall fully


cooperate with city in performing such testing and shall prepare results and the report prepared by franchisee shall include at least:

1. A description of the problem in CATV system performance which precipitated the special tests;

2. What CATV system component was tested;

3. The equipment used and procedures employed in testing;

4. The method, if any, by which such CATV system performance problem was resolved;

5. Radiation limits tests, such as those heretofore required by the FCC;

6. Any other information pertinent to said tests and analyses which may be required by the city, or determined when the test is performed.

B. If the results of testing shall indicate that the franchisee was operating within the established parameters as described in SMC 5.28.070; then the city shall be responsible for the costs of such tests. If the technical analysis shows that the franchisee is in violation of such parameters, the franchisee shall reimburse the city for such actual costs of testing. If such violation is shown, franchisee shall correct all violations within 60 days after written notice from the city. (Ord. 502 § 28, 1988)

5.28.290 Customer service.A. Upon the written request of the city at a time no sooner than five

years from the date of the franchise, franchisee shall establish at least a part-time facility to enable residents to exchange converters, pay bills and receive appropriate information. It is contemplated that such a facility would be operated no less than two days a week for three hours per day. However, if at that time, franchisee demonstrates that it is not economically feasible to do so or that suitable alternative methods exist, such requirement shall be waived. Such waiver shall not be unreasonably denied.

B. Franchisee shall render repair service to restore the quality of the signal at no less than the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A written or computerized log shall be maintained for a period of one year for all service interruptions which can be inspected upon notice.

C. An employee of franchisee shall answer and respond to all individual complaints received prior to 5:00 p.m. on weekdays. Franchisee may use an answering service to receive complaints after 5:00 p.m. on weekdays


and on weekends and holidays. A standby technician shall check with the answering service until 9:00 p.m. on weekdays and until 5:00 p.m. on weekends and holidays and will respond to any system outage affecting more than two customers.

D. Franchisee shall instruct its answering service to immediately notify a standby technician during the weekend or on a holiday if it receives calls indicating an outage affecting more than two customers.

E. Franchisee will maintain a sufficient repair force to respond to individual customer complaints or requests for repair service within 24 hours, after receipt of the complaint or request except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days, to the extent reasonable. Upon a request by customer, no charge for the period of the outage shall be made to the customer if the customer was without service for a period exceeding 24 hours, unless the outage was due to acts of God or events beyond the reasonable control of franchisee.

F. A standby technician shall be on call seven days a week. Franchisee shall respond immediately to service complaints involving a system outage affecting more than two customers. For purposes of this section, a system outage shall mean a customer is without all services.

G. Franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address, and telephone number of the Sultan city official or his/her designee, to whom system subscribers may direct their concerns.

H. All customers and members of the general public may direct comments regarding the company’s service or performance to the city or its designee. The city will provide a method whereby all customers and members of the general public have recourse to a review by the city or its designee regarding any complaints. (Ord. 502 § 29, 1988)

5.28.300 Subscribers’ right of privacy.The franchisee shall comply with all of the provisions of Section 631 of

the Act. (Ord. 502 § 30, 1988)

5.28.310 Programming.For informational purposes only, the franchisee shall file, upon granting

of the franchise, a complete listing of its cablecast programs including a breakdown of its basic and premium schedule. Such listing shall become the initial programming and cost schedule to be considered as the basis from which any changes may be contemplated in the future. This information, however, does not accord the city any greater rights of regulation than those granted in the Act. (Ord. 502 § 31, 1988)

5.28.320 Modification.

In the event the franchisee shall seek to have the existing franchise modified, Section 625 of the Act shall govern the procedure for the modification request unless city and franchisee shall otherwise agree. The request, which shall specify all items to be negotiated shall be made upon the other party in writing and both parties shall act in good faith to reach agreement. (Ord. 502 § 32, 1988)

5.28.330 Nondiscrimination.A. The franchisee shall not as to rates, charges, service facilities, rules,

regulations or in any other respect make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and provided further, that connection and/or service charges may be waived or modified during promotional campaigns of franchisee.

B. Installation and housedrop hardware shall be uniform throughout the city, except that the franchisee shall be free to change its hardware and installation procedure as state of the art progresses.

C. The franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 502 § 33, 1988)

5.28.340 Equal employment opportunity.The franchisee shall comply with all provisions of Section 634 of the

Act. (Ord. 502 § 34, 1988)

5.28.350 Continuity of service.It shall be the right of all subscribers to continue receiving service so

long as their financial and other obligations to the company are fulfilled.

A. In this regard the franchisee shall act so far as it is within the control of the franchisee so as to ensure that all subscribers receive continuous uninterrupted service during the term of this franchise.

B. In the event the franchisee fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond franchisee’s control, the city may, after notice and an opportunity for franchisee to commence operations at its option, operate the system or designate someone to operate the system until such time as the franchisee restores service to conditions

acceptable to the city council or a permanent franchisee is selected. If the city is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of the franchisee’s failure to perform. (Ord. 502 § 35, 1988)

5.28.360 Franchise renewal.The provision of Section 626 of the Act will govern the actions of the city

and the franchisee in proceedings relating to franchise renewal. The city expressly reserves the right to establish guidelines and monitoring systems in accordance with the provisions of the Act to measure the effectiveness of the franchisee’s performance during the term of such franchise. (Ord. 502 § 36, 1988)

5.28.370 Transfer of ownership.A. Any franchise awarded by the city shall be based upon an evaluation

by the city of each application, the qualifications, and other criteria as such pertain to each particular applicant. No franchise can be sold, transferred, leased, assigned or disposed of in whole or in part either by sale, voluntary or involuntary, merger, consolidation or otherwise, unless approval is granted by the city council under the same terms and conditions as the original franchise or as it may be subsequently amended by mutual agreement to insure a review of unforeseen circumstances not present at the time of the original franchise. The city’s approval shall not be unreasonably withheld. Such costs associated with this process shall be reimbursed to the city by the new prospective franchisee.

B. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

C. The franchisee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of the franchisee’s company. Every change, transfer or acquisition of control of the franchisee’s company shall make the franchise subject to cancellation unless and until the city shall have consented thereto. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise unless control by the franchisee is restored to a status acceptable to the city council.

D. Such approval of transfer, subject to conditions enumerated above, shall not be unreasonably withheld. Approval of the city shall not be required if said transfer is from franchisee to another person or entity,

controlling, controlled by or under common control with the franchisee. Approval shall not be required for mortgaging purposes provided that less than 50 percent of the beneficial interests, as described above are affected by such mortgage.

E. Upon the commencement of a foreclosure action or other actions which could possibly result in a judicial sale of all or a substantial part of the cable system, the franchisee shall notify the city council of such fact, and such notification shall be treated as a notification that a change in control of the company has taken place, and the provisions of this chapter governing the consent of the city council to such change in control of the franchisee shall apply.

F. Any transfer or assignment approved by the city shall be evidenced by a written instrument, a duly executed copy of which shall be filed in the office within 60 days after the approval of the transfer or assignment by the city. By said instrument, the assignee shall agree to comply with all terms of the ordinance codified in this chapter, the franchise ordinance and the assignor’s application. The city shall have the right, at its sole discretion, to require that any conditions in the original franchise be fulfilled prior to such transfer. (Ord. 502 § 37, 1988)

5.28.380 Right of city to purchase.The city reserves the right to purchase the existing system pursuant to

Section 627 of the Act. (Ord. 502 § 38, 1988)

5.28.390 Removal and abandonment of property of franchisee.

A. The city may direct the franchisee to temporarily disconnect or bypass any equipment of the franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the city. Such removal, relocation or other requirement shall be at the sole expense of the franchisee.

B. In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of this chapter or other city ordinances or the ordinance codified in this chapter has been terminated, canceled or has expired, the franchisee shall promptly, upon being given 10 days’ notice, remove within 90 days from the streets or public places all such property and poles of such system other than any which the city may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the street or other areas from which such property has been removed to a condition similar to that condition existing before such removal.

C. Any property of the franchisee remaining in place 90 days after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time not to exceed an additional 90 days.

D. Any property of the franchisee to be abandoned in place shall be abandoned in such manner as the city shall prescribe. Upon permanent abandonment of the property of the franchisee in place, the property shall become that of the city, and the franchisee shall submit to the city clerk/treasurer an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state, federal law or the Constitution. In the event the city and the franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this section, either party may invoke arbitration to resolve such question. (Ord. 502 § 39, 1988)

5.28.400 Revocation for cause.A. Any franchise granted by the city may be terminated during the

period of such franchise for the following reasons:

1. Failure by the franchisee to substantially comply with material provisions of this chapter;

2. Failure of the franchisee to comply with FCC regulations, or other provisions of the Act.

B. The procedure to be followed resulting in termination for any of the above reasons, save franchisee’s request, will be:

1. City council will direct in writing franchisee to correct such deficiencies or comply with such regulations within 30 days or a reasonable period of time;

2. Failure to do so will cause the matter of termination to be brought before the city council;

3. At such hearing the franchisee and other interested parties may offer evidence explaining or mitigating such noncompliance. The city council in its sole discretion, will make the determination as to whether such noncompliance was without just cause. In the event the city council finds that such noncompliance was without just cause, the city council may at its sole discretion fix an additional time period to cure such deficiency(ies). If the deficiency has not been cured at the expiration of any additional time period or if the council does not grant any additional period, the city council may by ordinance declare the franchise to be terminated and forfeited;

4. If the franchisee appeals the revocation and termination of the franchise through legal remedies, the revocation of such franchise shall be held in abeyance pending such de novo judicial review by a court of competent jurisdiction;

5. Provided, nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, on satisfactory assurances made to the city council that the terms and conditions of this chapter can be met by the franchisee. (Ord. 502 § 40, 1988)

5.28.410 Effect of termination for noncompliance.Subject to state and federal law, if any franchise is terminated by the

city by reason of the franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property, shall, at the election of the city, become the property of the city at a cost consistent with the provisions of Section 627(b)(1) of the Act. If the city, or a third party, does not purchase the system, the franchisee shall, upon order of the city council, remove the system as required under SMC 5.28.390. (Ord. 502 § 41, 1988)

5.28.420 Indemnify and hold harmless.The franchisee will indemnify and hold harmless the city from any and

all liabilities, fees, costs and damages except in the case of negligence or willful misconduct on the part of the city, whether to person or property, or expense of any type or nature which may occur to the city by reason of the construction, operation, maintenance, repair and alterations of franchisee’s facilities or any other actions of franchisee in the city of Sultan. In any case in which suit or action is instituted against the city by reason or damages or injury caused by franchisee, the city shall cause written notice thereof to be given to the franchisee and franchisee thereupon shall have the duty to appear and defend in any such suit or action, without cost or expense to the city. (Ord. 502 § 42, 1988)

5.28.430 Insurance.A. The franchisee shall concurrently with the filing of an acceptance of

award of any franchise granted hereunder, furnish to the city and file with the city clerk/treasurer and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the city, its officers, boards, commissions, agents and employees, protecting the city and all persons against liability for loss or damage for personal injury, death and property damage, and errors or omissions, occasioned by the operations of franchisee under such


franchise, with minimum limits of $1,000,000 for both personal injury and/or property damage.

B. The policies mentioned in subsection (A) of this section shall name the city, its officers, boards, commissions, agents and employees, as additional insureds and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the city 30 days in advance of the effective date thereof; if such insurance is provided by a policy which also covers franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 502 § 43, 1988)

5.28.440 Inconsistency.If any portion of this chapter should be inconsistent with any rule or

regulation now or hereinafter adopted by the FCC or other federal legislation, then to the extent of the inconsistency, the rule or regulation of the FCC or other federal legislation shall control for so long, but only for so long, as such rule or regulation shall remain in effect, but the remaining provisions of this chapter shall not hereby be effected. (Ord. 502 § 44, 1988)

5.28.450 Force majeure.In the event that the franchisee’s performance of any of the terms,

conditions, obligations or requirements of this chapter is prevented or impaired due to any cause(s) beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof. (Ord. 502 § 46, 1988).


ITEM NO: A-6

DATE: July 10, 2008

SUBJECT: Shoreline Master Program – Proposed Dept. of Ecology Amendment


ISSUE:

The issue before the City Council is to review and approve changes, proposed by the Department of Ecology, to remove all references to mining in the City’s Shoreline Master Program as adopted by Ordinance No. 915-06.

The proposed changes are detailed in Attachment C of the Department of Ecology’s May 30, 2008 letter to the City (Exhibit A).


1. Remove all references to mining in the SMP including the applicable sections shown in strike out text in the June 28, 2007 SMP

2. Adopt the changes proposed by the DOE.

3. Direct staff to provide written notice to the Department of Ecology (DOE) of the Council’s approval of the proposed changes.

SUMMARY:

The City of Sultan is finalizing the process to receive approval of its Shoreline Master Program from the Department of Ecology.

The Department of Ecology will approve Sultan’s Shoreline Master Program (referenced in the May 30, 2007 DOE letter as “the proposed amendment”) subject to the City’s agreement to remove all references to mining as detailed in Attachment C and applicable sections of text shown in strike out text in the June 28, 2007 Shoreline Master Program Update.

Proposed Changes

The May 30, 2008 letter from DOE states:

“The removal of an exemption for non mechanized recreation mining and associated language from the SMP will need to be addressed as a condition of SMP approval. The Sultan City Council has already recommended that the SMP not address mining as an allowed or prohibited use. The proposed SMP would leave mining as an unclassified use subject to a shoreline conditional use permit. Current city development code prohibits commercial mining. If any shoreline mining proposal is approved by the City they will need to have Ecology [DOE] approval through the shoreline conditional use permitting process”

When are the Changes Effective?

Because changes are required, the City’s Shorelines Master Program (“amendment”) will not become effective until DOE receives written notice the City agrees to DOE’s proposed changes.

Ecology approval of the proposed amendments with required changes is effective on the date DOE receives written notice the City has agreed to the required changes.

Alternatives to DOE Proposed Changes

As provided in RCW 90.58.090(2) (e) (ii), the City may choose to submit an alternative to all or part of the changes required by DOE. If Ecology determines the alternative proposal is consistent with the purpose and intent of DOE’s original changes and with RCW 90.58, then the DOE will approve the alternative proposal and that action would be the final action on the Shoreline Master Program.

City staff do not have any proposed alternatives to all or part of the changes required by DOE.

Next Steps

Shoreline procedures rules (WAC 173-26-120(9)) require the City to publish notice that Ecology has taken final action on this “amendment”. The City must publish a public notice once DOE acknowledges receipt of the City’s written agreement to accept the changes. This notice will begin a 60-day appeal period.

To summarize, if the City agrees with the required changes, it must:

1. Notify DOE in writing (notice of agreement)2. Wait to hear from DOE that they received the notice of agreement.3. Publish a notice that Ecology has taken final action. This notice will begin the

60-day appeal period.4. Forward two hard copies and one digital copy of the final SMP update to DOE.

BACKGROUND:

The proposed amendment is needed to create shoreline master program environment designations, policies and regulations unique to the City of Sultan. The City has been regulated under the Snohomish County SMP since 1974. The proposed amendment is needed to address the need for updated shoreline policies and regulations which reflect the current level of environmental protection and land use management provided by city comprehensive plan elements and other applicable city codes. It is also needed to meet the State Shoreline Master Program Guidelines (WAC 17-26).

The document is over 200 pages including appendices. The July 27, 2007 version of the SMP can be viewed on the City’s website at:http://www.ci.sultan.wa.us/planningboard/shoreline_master_plan/attachments/

The City's efforts to adopt and receive approval on its Shoreline Master Program (SMP) began in 2002. The approval process is divided between a local process and a state review and approval process. The City completed the local approval process on July 12, 2007 when the Council adopted the SMP by Ordinance 915-07 (Attachment B). The SMP was submitted to the state to review on October 4, 2007.

The City received a Public Comment Summary letter from the Department of Ecology dated February 14, 2008 (Exhibit B). The letter summarizes the comments received by the Department of Ecology during its public comment period. Only one individual (Josie Fallgatter) commented on the Shoreline Master Program update.

The City Council reviewed the public comment on March 13, 2008 and prepared a written response to comments in accordance with WAC 173-26-120 (6). Council further directed staff to remove gold mining from the SMP. Following are the meeting minutes from March 13, 2008.

http://www.ci.sultan.wa.us/planningboard/shoreline_master_plan/attachments/

DISCUSSION:

Changes Made to the Mining Section

Mining was originally included as a permitted use in Chapter 6: Shoreline Polices and Regulations. On June 11, 2007 City staff brought the issue of mining to the City Council following the joint meeting on the SMP with the Planning Board on 5/24. The staff recommendation was as follows: Request City staff, if City Council concurs with City Staff's conclusions, to finalize the Shoreline Master Program (SMP) and delete mining as a permitted use. Staff was directed to research language for recreational mining (gold panning) allowed by other agencies. During this research, staff discovered that recreational gold panning has not been addressed by other agencies.

The Draft SMP dated June 20, 2007 for the June 28, 2007 Council meeting shows Chapter 6, Section 7 Mining (page 39) and other deletions from the SMP removed using the "strike-through" legislative mark-up tool. Additions to the SMP (06/20/07) were highlighted using the underline method.

On June 28 the City Council considered the adopting ordinance for first reading. In the Discussion section of the agenda cover, the reports states:

"The SMP…has been amended to delete the gravel extraction as an allowed use and include gold mining as a permitted activity in the Aquatic Zone. In addition to this change, the SMP incorporates the recommendation of the State AG's office and the DOE."

A memo dated June 13, 2007 from Roger Wagoner and Aubin Phillips to Rick Cisar which states: "The mining section which refers to the mining of sand and gravel has been removed from the Sultan SMP; however, the city Council would still like to see gold mining included in the SMP. Since the mining section has been removed, it is proposed that gold mining be included under Recreation facilities section of Chapter 6 of the SMP." There was no public comment at the 6/28 meeting regarding the proposal to remove the mining section.

Permit Requirements for Recreation Gold Mining (Panning)

The original proposal to the City Council was to exempt small scale, non-motorized, recreational prospecting.

However, there is no statutory exemptions for small scale, non-motorized recreational prospecting. The State Shoreline Master Program Guidelines require that any mining activity (including gold panning) within a river channel migration zone be conducted under a shoreline conditional use permit.

Under the State’s requirements, anyone wishing to pan for gold within the Sultan river channel migration zone must apply for and receive a shoreline conditional use permit from the City of Sultan. The City’s permitting process requires a public hearing for conditional use permits. Under Chapter 7 of the SMP, the City Council shall review conditional use permits at a closed record hearing. After the City Council has approved a conditional use permit, the SMP Administrator shall file the permit with the DOE for its approval.

Under the 2008 fee schedule, the cost for a conditional use application is $1,000 plus direct costs. A conditional use permit is $500 plus direct costs. A public hearing requires a $1,500 deposit plus direct costs to cover the expense of the Hearing Examiner.

Recommended DOE Changes to SMP (06/28/2007) to Remove all References to Mining

See Exhibit A – Attachment C

SUMMARY:

The City’s SMP has entered the state review and approval process. The SMP has been through multiple reviews at the Department of Ecology and the State Attorney General’s Office. Following Council direction, City staff will notify the Department of Ecology in writing.

The SMP has been reviewed by DOE for consistency with the City’s Critical Areas Ordinance. The SMP must be consistent with the Comprehensive Plan – Land Use, Shoreline Management and other Elements of the Comprehensive Plan. The goals and policies of a local government's shoreline master program now function as an element of its comprehensive plan adopted under the GMA. (RCW 36.70A.480)

ALTERNATIVES:

http://www.mrsc.org/mc/rcw/rcw%20%2036%20%20title/rcw%20%2036%20.%2070a%20chapter/rcw%20%2036%20.%2070a.480.htm

The City Council must either notify DOE in writing that it has agreed to the required changes or submit an alternative to all or part of the changes required by DOE as provided in RCW 90.58.090(2) (e) (ii).

The larger question for the City Council is whether to continue to keep recreational gold prospecting as a conditional use in the Sultan SMP or leave mining as an unclassified use subject to a shoreline conditional use permit. If any shoreline mining proposal is approved by the City, the applicant will need to have DOE approval through the shoreline conditional use permitting process. There is no alternative to exempt this use under the State Shoreline Management Act.

RECOMMENDED ACTION:

1. Remove all references to mining in the SMP including the applicable sections shown in strike out text in the June 28, 2007 SMP

2. Adopt the changes proposed by the DOE.

3. Direct staff to provide written notice to the Department of Ecology (DOE) of the Council’s approval of the proposed changes.

EXHIBITS:

A – May 30, 2008 letter from DOEB – Ordinance No. 915-07C – Mark-up changes to Chapter 5, Shoreline Environments D – Mark-up changes to Chapter 6, Shoreline Policy and Regulations E - Mark-up changes to Chapter 7, Shoreline Administrative Procedures

SULTAN CITY COUNCIL AGENDA ITEM COVER SHEET

ITEM NO: Action A 7

DATE: July 10, 2008

SUBJECT: Planning Board Appointments:


ISSUE: 1. The Council issue is to consider the appointments made by the Mayor and

determine whether to confirm those persons as members of the Planning Board.

SUMMARY:2. The Mayor has received applications from Mr. Chip McElhany, Mr.Paul McBride,

Mr. Steve Harris, and Mr. Keith Arndt expressing interest in Planning Board membership.

3. The Mayor has requested that a subcommittee of the Council interview the applicants prior to the Mayor’s appointment of the members.

4. This interview process will take place on July 8 with comments going to the Mayor for consideration and appointment prior to the July 10 th Council meeting.

ANALYSIS: 1. Appointments to the Planning Board are made according to provisions of Sultan

Municipal Code (SMC) 2.17.090 and 2.17.100. The process involves appointment by the Mayor and confirmation by the Council.

2. Terms are for two years with unlimited reappointment.3. As there are four positions currently open, some of which are for full terms, and

some of which are to serve for the balance of an incomplete term, the Planning Board members will establish their term appointments, in conformance with the Sultan Municipal Code Section 2.17.100, at their first meeting.

ALTERNATIVES:1. The Council may refuse to confirm the appointments, thereby requesting the

Mayor to make alternative appointments. 2. The Council may confirm the appointment as provided in SMC 2.17.090.

ACTION:Move to confirm the Mayor’s appointments as presented at the July 10, 2008 meeting.

ATTACHMENTS: A. Applications for Planning Board membershipB. SMC 2.17.090 & 2.17.100

ATTACHMENT A

ATTACHMENT B

2.17.090 Appointments to planning board.All members of the planning board shall be appointed by the mayor and confirmed by the city council. Appointments shall be made in a nondiscriminatory manner, without regard to age, race, sex or political affiliation. (Ord. 924-06 § 3)2.17.100 Terms of appointments to the planning board.Two of the initial appointments to the planning board shall be for a one-year appointment. Three of the initial appointments to the planning board shall be for a two-year appointment. All subsequent appointments to the planning board shall be for a term of two years, unless the appointment is to fill the balance of an existing term, in which event the term shall be the balance of the term. Members may be reappointed an unlimited number of terms. (Ord. 924-06 § 4)