HomeMy WebLinkAbout11/12/2013 - City Council - City Council Meeting Agenda Packet•
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L-1
NOV
12
CITY OF EAST WENATCHEE
REGULAR COUNCIL MEETING AGENDA
NOVEMBER 12, 2013
6:30 P.M.
ROLL CALL
PLEDGE OF ALLEGIANCE
PUBLIC COMMENTS
BUDGET REPORT
CONSENT CALENDAR
1. Consideration of Minutes — Regular Session, October 22, 2013
— Special Session, October 29, 2013
2. Consideration of Payables
ORDINANCE(S)
3. 13-11-01 First reading of an Ordinance of the City of East Wenatchee, granting a non-
exclusive Franchise to Zayo Group, LLC to construct, install, operate, maintain,
repair, or remove fiber optic cables within the public ways of the City of East
Wenatchee. (Devin Poulson, City Attorney)
4. 13-11-02 First reading of an Ordinance of the City of East Wenatchee allowing dog licenses to
• read "Wenatchee Valley Animal Control" by amending Section 6.04.040 of the East
Wenatchee Municipal Code. (Devin Poulson, City Attorney)
RESOLUTIONS)
5. 13-11-03 A Resolution of the City of East Wenatchee, Washington, authorizing the Mayor to execute
an Agreement for Public Defender Services. (Steven C. Lacy, Mayor)
ACTION ITEMS)
6. 13-10-12 Approval of a Lease Agreement with Xerox for a Copy Machine (W7845PT Tandem) for the
Police Department. (Randy Harrison, Police Chief)
7. 13-10-13 Approval of a Consultant Agreement Supplement with RH2 Engineering for the Grant Road
Storm Pipe Drain Rehabilitation. (Greg Pezoldt, Public Works Director)
8. 13-11-03 Professional Service Agreement with PACE Engineering for design services for a
Stormwater Low Impact Development Retrofit Project. (Brandon Mauseth, Associate
Engineer)
9. 13-11-04 Mitigation agreement with Washington State Department of Transportation (WSDOT) for SR
28/East end of the George Sellar Bridge for the Grant Road Viewpoint Park relocation. (Lori
Barnett)
. Continued on next page ..............
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please
contact the City Clerk at 509-884-9515. Notification 48 hours prior to the meeting will enable the City to make reasonable
arrangements to ensure accessibility to this meeting.
Page 1 of 2
10. 13-11-05 First Amendment to Agreement with the Columbia Valley Housing Association (CVHA) to
• award the 2011 and 2012 Community Development Block Grant (CDBG) funds for the
homeownership assistance program. (Lori Barnett, Community Development Director)
C J
•
COUNCIL REPORTS
COUNCIL WORKSHOP
2014 Budget
ADJOURNMENT
(f In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please
contact the City Clerk at 509-884-9515. Notification 48 hours prior to the meeting will enable the City to make reasonable
arrangements to ensure accessibility to this meeting.
Page 2 of 2
9
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1'-
ROLL CALL
PLEDGE OF ALLEGIANCE
EXECUTIVE SESSION
Regarding potential litigation.
ADJOURNMENT
CITY OF EAST WENATCHEE
SPECIAL COUNCIL MEETING AGENDA
OCTOBER 29, 2013
5:30 P.M.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please
contact the City Clerk at 509-884-9515. Notification 48 hours prior to the meeting will enable the City to make reasonable
arrangements to ensure accessibility to this meeting.
Page I of I
•
CITY OF EAST WENATCHEE
SPECIAL COUNCIL MEETING AGENDA
OCTOBER 29, 2013
5:30 P.M.
ROLL CALL
PLEDGE OF ALLEGIANCE
EXECUTIVE SESSION
Regarding potential litigation.
ADJOURNMENT
Was not able to publish to Wenatchee World as deadline for newspaper Publishing was October 24,
2013, at 11:00 a.m. in order to be published in the Sunday edition. Wenatchee World does not put
out a Monday edition of the paper.
The meeting notice was posted to the City Website at 12:10 PM on Friday, October 25, 2013. Unter
the City Council Meetings ticker on the home page.
An Agenda for the Special meeting was sent to City Councilmembers on October 25, 2013
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please
contact the City Clerk at 509-884-9515. Notification 48 hours prior to the meeting will enable the City to make reasonable
arrangements to ensure accessibility to this meeting.
Page 1 of 1
Dana Barnard
I rom: Jennifer Greaves <coriell@wenatcheeworld.com>
SSent: Friday, October 25, 2013 12:04 PM
To: Dana Barnard
Subject: Re: LEGAL ADVERTISING Special Council Meeting
Hi Dana,
I'm sorry but the deadline for Legals was yesterday at 11:00 a.m. All my legals were posted yesterday afternoon. I see
your meeting is on Tuesday, but that is the first day I can publish. Do you want that day?
Thank you,
Ta m ra
Tamra Hively for Jennifer (Coriell) Greaves
Jennifer (Coriell) Greaves - Legals & In Memoriams Coordinator
We Engage, Inform and Inspire our NCW Communities - wenatcheeworld.com
(o) 509-661-6373 (f) 509-663-9110 (e) greaves@wenatcheeworld.com
(e) legals@wenatcheeworld.com • (e) memoriams@wenatcheeworld.com
The Wenatchee World. Foothills Magazine. Wenatchee Valley Business World.
From: "Dana Barnard" <DBarnard(aDeast-wenatchee.com>
KTo: legals(W-wenatcheeworld. com
ent: Friday, October 25, 2013 11:13:28 AM
Subject: LEGAL ADVERTISING Special Council Meeting
Dana Barnard, City Clerk
City of East Wenatchee
271 911 Street NE
East Wenatchee, WA 98802
Phone: 509.884.9515
Fax: 509.884.6233
dbamard aneast-wenatchee.com
0
CITY OF EAST WENATCHEE COUNCIL MINUTES OCTOBER 22, 2013
REGULAR SESSION OF THE CITY COUNCIL CONVENED
MAYOR STEVEN C. LACY, PRESIDING
OCTOBER 22, 2013
6:30 P.M.
ROLL CALL
Mayor Steven C. Lacy
Councilmember Harry Raab
Councilmember Frank Collings
Councilmember Wayne Barnhart - excused
Councilmember Tim Detering
Councilmember Sandra McCourt
Councilmember George Buckner
Councilmember Chuck Johnson - excused
EMPLOYEES IN ATTENDANCE
City Attorney Devin Poulson
City Clerk Dana Barnard
Police Chief Randy Harrison
Police Officer James Marshall
Community Development Director Lori Barnett
Finance Director Nick Gerde
Accounting Assistant/Executive Secretary Teresa Allen
Public Works Director Greg Pezoldt
Clerical Assistant Shawn Murison
PROCLAMATION
Mayor Lacy read a proclamation proclaiming Saturday, October 26, 2013, as Make A Difference Day,
and presented the proclamation to Laura Helton.
PUBLIC COMMENTS
Brett Telford, 1199 Webb PI S, East Wenatchee, said he represents a group of recreational land and farm
ATV users. He said their thoughts and prayers are with Councilmember Barnhart. He requested Council
move the Ordinance regarding the use of ATV's on City Streets up on the agenda to be presented first,
and also elevate the Ordinance to second reading. He stated on behalf of the tax Ordinance item, he feels
the 1% regular property tax levy increase would be good for East Wenatchee.
Mayor Lacy stated they would consider moving the ATV issue when the public comments have been
completed.
Mark McCants, 1720 10fl' PI NE, East Wenatchee, inquired on the process regarding recreational
marijuana stores operating within the City limits. Mayor Lacy said he was not aware of any major steps
regarding that issue. Mr. McCants stated he was still proceeding forward with the process, and will attend
more Council meetings to work side by side with the City to ensure compliance.
40 Ken Dominguez, Clearwater Steakhouse & Saloon, wanted to thank the City for restriping the downtown.
He then expressed concerns of the downtown becoming a ghost town and believes the City is not doing
enough to help the downtown. He added that the City has invited citizens, business and property owners
CITY OF EAST WENATCHEE COUNCIL MINUTES OCTOBER 22, 2013
to come to City meetings and voice their opinion with regards to the downtown, but then those people
never hear anything back from the City.
Mayor Lacy agreed that the City has not communicated well enough with the people downtown about
what is going on. He added that the City has been working diligently on providing a gateway that would
lead people from the trail to the downtown area.
Kathryn Dominguez, General Manager of the Clearwater Steakhouse, said it would be nice to get a flyer
once in a while that communicates what the City is trying to do in the downtown area. She thanked Tim
Detering for coming to their recent meeting and listening to their ideas, they really appreciated his
presence.
Councilmember Raab asked what some of their ideas were. Kathryn stated there were many great ideas
which included placing plaques relating to the history of downtown, and adding flowers and trees for
beautification.
ORDINANCE
Mayor Lacy stated that in light of the suggestion earlier he was going to move action item number 6 up on
the agenda.
6. 13-10-11 First reading of an Ordinance of the City of East Wenatchee allowing drivers to operate
wheeled all terrain vehicles on City streets with a speed limit of 35 miles per hour or less
by enacting Chapter 10.60 of the East Wenatchee Municipal Code.
Presented by: City Attorney Devin Poulson
Mayor Lacy elevated the Ordinance to a second reading without objection, and read the
Ordinance title.
Council Action: A motion was made by Councilmember Detering, second by
Councilmember Buckner, allowing drivers to operate wheeled all terrain vehicles on City
streets with a speed limit of 35 miles per hour or less by enacting Chapter 10.60 of the
East Wenatchee Municipal Code. The motion carried, 5-0.
ORDINANCE NO.2013-08
An Ordinance of the City of East Wenatchee allowing drivers to operate wheeled all
terrain vehicles on City Streets with a speed limit of 35 miles per hour or less by
enacting Chapter 10.60 of the East Wenatchee Municipal Code.
BUDGET REPORT
Finance Director Nick Gerde distributed and reviewed the minutes from the October 17, 2013, Budget
Committee meeting.
Mayor Lacy discussed the City getting involved in being a funding partner in the Museum. He added this
is something Council will have to consider before the budget process is over.
2
CITY OF EAST WENATCHEE COUNCIL MINUTES OCTOBER 22, 2013
• DEPARTMENT REPORT
Finance Director Nick Gerde distributed and reviewed the Financial Report for the month of September
2013.
MAYOR'S REPORT
Mayor Lacy asked Public Works Director Greg Pezoldt to give an update regarding the Eastmont project.
Greg reported that we are still on the same timeline as stated at the last Council meeting, tomorrow they
will stripe the road, Thursday they will turn on the new traffic signal at 3`d Street, most of the concrete for
the sidewalks will be poured this week, and we are looking at substantial completion by the 29''.
Mayor Lacy reported that there has been some rearrangement of some employees to enhance efficiency
within the City Hall offices.
CONSENT CALENDAR
Items listed below were distributed to Councilmember's in advance for study and were enacted in one
motion.
Council Action: A motion was made by Councilmember Raab, second by Councilmember McCourt, to
approve the Consent Calendar as amended. The motion carried, 5-0.
1. Consideration of Minutes — Regular Session, October 8, 2013
49 2. Consideration of Payables
i. 2013 Pa ay bles — As of this date, October 22, 2013, Council does approve
check numbers 39540 through 39596 in the total amount of $101,971.66.
Payables checks 39444 and 39523 were voided.
ii. 2013 Pam — As of this date, October 22, 2013, Council does approve
September 2013 payroll in the amount of $373,773.14, including check
numbers 39346 through 39380, 39382 through 39383, 39489 through
39522, and 39524 through 39539. No payroll checks were voided.
PUBLIC HEARING
13-10-08 A public hearing regarding property taxes in the proposed 2014 East Wenatchee Budget.
(Nick Gerde, Finance Director)
Mayor Lacy stated that this is what we do every year with respect to the proposal to
increase the property taxes, and in this case it is usually around $15,000 that is generated
in addition to our current assessment for property taxes. His understanding is that the
proposed Ordinance that relates to this Public Hearing would be an Ordinance that allows
Council the option to either adopt that $15,000 increase, or not to do adopt it, and
additionally consider going back and picking up capacity that we have turned away in the
past based on prior votes.
Mayor Lacy opened the public hearing at 7:19 p.m.
Mayor Lacy referred to the one comment made during Public Comments by Brett Telford
regarding his agreement of a 1% tax increase on property tax. No other comments were
made.
CITY OF EAST WENATCHEE COUNCIL MINUTES OCTOBER 22, 2013
• Mayor Lacy closed the public hearing at 7:20 p.m.
ORDINANCE(S)
13-10-09 A — An Ordinance of the City of East Wenatchee authorizing the regular property tax levy, and
authorizing any increase which may be allowed in the amount under new construction,
improvements to property, and the State assessed property provisions of State law.
Presented by: Nick Gerde, Finance Director
B — An Ordinance of the City of East Wenatchee authorizing the regular property tax levy to
be collected in 2014, an increase of one percent in the regular property tax levy, and
authorizing any increase which may be allowed in the amount under new construction,
improvements to property, and the State assessed property provisions of State law.
Presented by: Nick Gerde, Finance Director
C — An Ordinance of the City of East Wenatchee authorizing the regular property tax levy to
be collected in 2014, an increase available from the previously banded capacity, an
increase of one percent in the regular property tax levy, and any increase which may be
allowed in the amount under new construction, improvements to property, and the State
assessed property provisions of State law.
• Presented by: Nick Gerde, Finance Director
Mayor Lacy read the first reading of Ordinance Options A, B, and C, and stated that each
of these Ordinances would go to a second reading at the next Council meeting, and one
would be passed.
13-10-10 First reading of an Ordinance of the City of East Wenatchee, Washington, amending
Ordinance Number 2012-16, as amended, which set the East Wenatchee Budget for 2013.
Presented by: Nick Gerde, Finance Director
Mayor Lacy elevated the Ordinance to a second reading without objection.
Council Action: A motion was made by Councilmember Buckner, second by
Councilmember Collings, to amend Ordinance Number 2012-16. The motion carried 5-0.
ORDINANCE NO.2013-10
An Ordinance of the City of East Wenatchee, Washington, amending Ordinance
Number 2012-16 as amended, which set the City of East Wenatchee 2013 Budget.
ACTION ITEM(S)
13-10-12 Approval of a Lease Agreement with Xerox for a Copy Machine (W7845PT Tandem) for
the Police Department.
Police Chief Randy Harrison stated that he is not asking for approval at this time.
4
CITY OF EAST WENATCHEE COUNCIL MINUTES OCTOBER 22, 2013
• Mayor Lacy removed this item from the Agenda without objection.
13-10-13 Approval of a Consultant Agreement with RH2 Engineering for the Grant Road Drain
Pipe Lining.
Public Works Director Greg Pezoldt stated that there was a miscommunication on his
part, and the item should have been pulled from the agenda.
Mayor Lacy removed this item from the agenda without objection.
COUNCIL REPORT(S)
Mayor Lacy mentioned the report from the Humane Society regarding animal control in East Wenatchee.
Councilmember Collings reported on the Public Health presentation regarding Tuberculosis (TB), which
included a type of TB that is coming from the Middle East that is not reacting to medication, he said there
was one case reported at the hospital which they could not recognize, and about 60 people were exposed.
Mayor Lacy reported that the Wenatchee Valley Transportation Council have set and approved their
priority list for allocation of funding projects throughout the region. He said East Wenatchee's main
project on that agenda is the signal lighting project at the bottom of 9`h Street at a cost of approximately
$1 million.
• ADJOURNMENT 7:29 p.m.
Dana Barnard
City Clerk
0
CITY OF EAST WENATCHEE, WASHINGTON
SPECIAL SESSION OF THE CITY COUNCIL CONVENED
MAYOR PRO TEMPORE TIM DETERING, PRESIDING
OCTOBER 29, 2013
6:30 P.M.
ROLL CALL
Mayor Pro Tempore Tim Detering
Councilmember Wayne Barnhart - excused
Councilmember Chuck Johnson
Councilmember Frank Collings - excused
Councilmember Hang Raab
Councilmember Sandra McCourt
Councilmember George Buckner
EMPLOYEES IN ATTENDANCE
City Clerk Dana Barnard
Public Works Director Greg Pezoldt
EXECUTIVE SESSION
At 5:31 p.m. Mayor Pro tempore called a fifteen minute executive session regarding potential litigation.
• At 5:46 p.m. Mayor Pro Tempore Detering extended the executive session an additional fifteen minutes.
Council reconvened at 6:01 p.m.
Council Action: A motion was made by Councilmember Johnson, second by Councilmember McCourt,
to hire independent Counsel to help resolve a possible dispute with one of the property owners regarding
the Eastmont Avenue Reconstruction project, due to the fact that this would be a conflict of interest for
the City Attorney. Motion passed 4-1 (Raab)
ADJOURNMENT 6:05 p.m.
Dana Barnard
City Clerk
0
CITY OF EAST WENATCHEE
CHECK REGISTER
2013 PAYABLES
12-Nov-13
ECK NUMBERS: 39634; 39685-39789
IDED CHECKS:NONE
ro
DEPARTMENT/FUND
ACCOUNT NUMBER
AMOUNT
0.00
0.00
27628.83
8,922.43
603.64
333.25
1,661.15
1,298.88
25,062.73
-
-
3,092.08
14,246.62
8,515.50
Current Expense Fund:
001 001 000
General Government Department
001 000 000
001 000 001 _
001 000 110
Legislative Department
Municipal Court Department
001 000 120
City Clerk Department
001 000 140
Internal Services Department
001 000 141
Finance Department
001 000 142
001 000 145
Civil Service
001 000 160
Legal Service
001 000 151
Central Services Department
001 000 180
001 000 210
Police Department
Detention (Jail Services)
001 000 230
001 000 250
-
Engineering Services
001 000 315
40.00
2,600.00
117.53
503.00
94,625.64
57,907.35
Planning Department
001 000 580
Code Compliance Department
001 000 590
Agency Disbursements
001 001 000
Street Fund:
NPDES
050 000 310-050 000 313
Street Maintenance
101 000 420
4,197.72
Street Administration
101 000 430
498.74
Street General
101 000 000
-
Street Construction
101 000 950
-
Street Fund Total
62,603.81
Other Funds:
Comm Dev Grants Fund
102 000 000
0.00
Library Fund
112 000 000
150.33
Stadium Fund
113 000 000
5,000.00
Drug Fund
114 000 000
-
Criminal Justice Fund
116 000 000
-
East Wenatchee Events Board
117 000 000
2,550.78
St Imp Bond Redemt Fund #3
202-000-000
151,650.00
Street Improvement Fund
301-000-000
942,650.32
Capital Improvement Fund
314 000 000
-
Other Funds Total
1,102,001.43
Grand Total All Funds
1,259,230.88
CJ
Fund Transaction Summary
MR
001-000-001-
Sub -Department
$27,628.83
001-000-110-
Sub -Department
$8,922.43
001-000-120-
Sub -Department
$603.64
001-000-140-
Sub -Department
$333.25
001-000-141-
Sub -Department
$1,661.15
001-000-142-
Sub -Department
$1,298.88
001-000-145-
Sub -Department
$25,062.73
001-000-180-
Sub -Department
$3,092.08
001-000-210-
Sub -Department
$14,246.62
001-000-230-
Sub -Department
$8,515.50
001-000-315-
Sub -Department
$40.00
001-000-580-
Sub -Department
$2,600.00
001-000-590-
Sub -Department
$117.53
001-001-000-
Department
$503.00
050-000-312-
Sub -Department
$46,719.60
050-000-313-
Sub -Department
$11,187.75
101-000-420-
Sub -Department
$4,197.72
101-000-430-
Sub -Department
$498.74
112-000-000-
Library Fund
$150.33
113-000-000-
117-000-100-
Stadium Fund
Sub -Department
$5,000.00
$269.47
117-000-115-
Sub -Department
$57.69
117-000-400-
Sub -Department
$1,163.62
117-000-500-
Sub -Department
$60.00
117-000-600-
Sub -Department
$1,000.00
202-000-000-
ST Imp Bond Redempt Fund #3
$151,650.00
301-000-000-
Street Improvement Fund
$942,650.32
Count: 27
$1,259,230.88
0 Execution Time: 6 second(s) Printed by EASTWENATCHEE\tallen on Page 1 of 1
East Wenatchee - Fund Transaction Summary
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Dana Barnard
Krom:
Devin Poulson
ent:
Thursday, October 24, 2013 12:36 PM
To:
Chuck Johnson; Frank Collings; George Buckner; Harry Raab; Sandra McCourt; Steve
Lacy; Tim Detering; Wayne Barnhart
Cc:
Greg Pezoldt; Dana Barnard
Subject:
Lacy & Kane Driveway 300 Eastmont
0
City Council,
The purpose of this letter is to put the Council on notice that it looks like the City is heading
into a legal dispute with Lacy & Kane regarding their driveway. Because the Mr. Lacy is my
current employer and also a former employer, I feel I have a conflict of interest in this case and
whatever legal advice I give will be questioned.
Thus, my recommendation is that you schedule a special meeting as soon as possible and
authorize the City to hire independent counsel to represent the City on how to proceed with the
litigation threatened by Mr. Kane.
Thank you.
Devin Poulson
From: Greg Pezoldt
Sent: Thursday, October 24, 2013 9:31 AM
To: Devin Poulson
Subject: FW: Lacy & Kane Driveway 300 Eastmont
Devin,
Here is a heads up concerning the driveway access at Lacy Kane. I told Mr. Kane via voice mail that we would not be
able to install the electrical mat prior to the end of the contract due to procurement times (about two to three weeks).
By that time, the contractor will be long off the job.
As we discussed, we can either not pave and install something later if the paving plant is still in operation, remove
pavement in the spring and retrofit, or do nothing. I think those were the options that we discussed.
G reg
OFrom: Scott Kane [mailto:ScottCablacvkane.com]
Sent: Thursday, October 24, 2013 9:25 AM
To: Greg Pezoldt
Cc: Jana Bryan; Eric Howe
Subject: Lacy & Kane Driveway 300 Eastmont
G reg
We had discussed current post construction driveway ingress/egress problems and potential remedies for the above
property. My original agreement with the City was that our driveway would be returned to us after road completion in
an identical condition to that existing before construction. What we now have is a driveway that is much steeper,
and consequently dangerous under winter conditions. We thus asked for heat coils under the driveway to alleviate this
condition. You said you would check on it. You must still be checking on it, as I have heard nothing further from you. I
have called twice after our initial conversation and left a message without response. When I have inquired of the project
engineers as to driveway heat coil install status, they have replied I must go back to you.
We do not want a vehicle crashing into our office, because it can't get stopped on a steep and slippery driveway you
created. We are now receiving complaints from clients about their ability to navigate the driveway. This won't get
better in inclimate weather. The engineers have stated that October 29, 2013 is the last day to pave. Heat coils must be
in place before paving, to get us through the winter months. We can not go through the winter without the coils, or
without asphalt because the City might balk at this solution.
The asphalting company originally attempted to pave the driveway without any changes, despite my prior expressed
concerns to everyone, and with out any driveway remediation. I note this was attempted less than 5 minutes after I had
left the office. I was called on my cell phone, and a secretary at the office stopped them from asphalting. The proposed
solution was to cut back further into the existing parking lot asphalt, as well as one parking space. This asphalt
cutting was also done without my prior consent and was discovered after the contractor was tearing asphalt from the
10existing driveway. Ironically, the City mandated a minimum number of parking space during original construction of the
building we have now occupied for only 2 years. The City now seems quite willing to reduce the number of parking
spaces, to alleviate what I deem an unacceptable fix to the driveway access problem it created.
Be advised I am not waiving any contractual rights to enforce the original agreement to return to us the driveway we
had pre- construction. If the city does not intend to do what is necessary to make the driveway safe, I will take action to
force the issue . The City will be held responsible for all interim damages until; proper repair, as well as the costs we
expend to address this problem.
In closing, I emphasize that the utility employees (PUD, phone, & water) have been great to work with during the past
several months. However, the contractor's employees have exhibited an "I could care less" attitude to
accommodating needs to keep the office access open, and it has been a continual effort in restraint in dealing with KBL.
Scott Kane
is
2
r
CITY OF EAST WENATCHEE
PERMIT TO ENTER UPON REAL PROPERTY
The City of East Wenatchee, by and through the authorized representative of the City of
East Wenatchee, and the undersigned Owner, do hereby agree as follows:
1) The Owner hereby grants the City of East Wenatchee the right to enter upon the real
property described as follows:
Property located at 300 Eastmont Avenue, East Wenatchee, Douglas County,
Washington. (Parcel #40100003502)
2) The City of East Wenatchee may exercise the right of entry only for the following
purpose(s):
Street widening, driveway reconstruction, retaining wall
installation, curb, gutter, sidewalk and construction related work
3) The City of East Wenatchee warrants that all labor and materials used to perform the
work shall be free of defects after completion. Upon completion of the work, the site shall be
cleared of all debris and refuse created by the work. The site shall be left in a neat and clean
condition. The City of East Wenatchee makes no other promises, representations or warranties
regarding the work, either express or implied.
4) See Addendum to this Permit to Enter Upon Real Property, attached hereto and
incorporated by this reference as if fully set forth.
/l171L
Date
0
S&S DE LOPMENT
ty Representative Signature
0
ADDENDUM TO CITY OF EAST WENATCHEE
PERMIT TO ENTER UPON REAL PROPERTY
This Addendum supplements and to the extent inconsistent, revises the Permit to Enter Upon Real
Property signed by Scott Kane as a partner of S&S Development in favor of the City of East
Wenatchee (City).
• Entry of City or its agents pursuant to the permit shall be limited to a period of eight (8) months
following the beginning of construction.
• Upon completion of construction, City shall provide a driveway of substantially identical width,
grade, materials, and slope, to that existing at 300 Eastmont before construction, to include access
onto Eastmont from the driveway. The current drive way utilized by S&S, or Lacy Kane, P.S., and
their clients for ingress and egress at 300 Fastmont shall be returned to the substantially same or
similar condition, upon completion of construction.
• During the entire time of construction no more than half of the driveway at 300 Eastmont shall be
obstructed at any one time for ingress and egress, or limited or impaired or otherwise restricted, other
than as expressly stated herein, from Monday through Friday, between the hours of 8 AM to 5 PM.
• City shall replace any materials removed, with like kind, quality, and construction to that presently
existing. City further agrees to promptly restore all materials removed by City at 300 Eastmont as
part of its road construction, as directed and outlined by S&S Development or Lacy Kane, P.S., to
City.
smk
s&s\addendum
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COUNCIL AGENDA BILL #
PRESENTER:
POSITION:
13-11-01
Devin Poulson
City Attorney
CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
AGENDA ITEM #
AGENDA DATE:
DEPARTMENT:
3
November 12, 2013
Legal Department
TITLE: AN ORDINANCE OF THE CITY OF EAST WENATCHEE granting a non-exclusive
Franchise to Zayo Group, LLC to construct, install, operate, maintain, repair,
or remove fiber optic cables within the public ways of the City of East
Wenatchee.
BACKGROUND/ Please see attached email from Dylan Devito.
HISTORY:
EXHIBITS: Resolution No. 2013-20
RECOMMENDED Elevate Ordinance to Second Reading and pass the Ordinance.
ACTION:
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
ACTION TAKEN: I'
Motion Made By: .�
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: 110 Failed:
o✓ ro `Tew,00'-6
ekiie,Y
Second By: M 1-C.our+
Councilmember Raab
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Page 1 of 1
From: Dylan Devito
To: Devin Poulson
Cc: Omar Guzman
Subject: RE: Zayo Franchise
Date: Tuesday, September 24, 2013 8:30:47 AM
Hi Devon - just checking in to see if you have had a chance to review the below.
Thanks,
Dylan
From: Dylan Devito[mailto:dylan.devitoCai)zayo.com]
Sent: Friday, September 13, 2013 9:57 AM
To: 'dpoulson6least-wenatchee.com'
Cc: Omar Guzman
Subject: Zayo Franchise
Devon,
In follow up to our recent discussion around franchise fees, I am writing to explain Zayo's position
that the compensation provision set forth in Section 17(A) of the Agreement is invalid and
unenforceable under Washington State law. Going back into the history of this agreement, I realize
that you had offered the then -pending Zayo franchise with the City of Wenatchee as a starting
point, and it was Wenatchee's document that contained the impermissible language. Therefore, I
gather that the City of East Wenatchee may not have realized there was a potential issue. Hopefully
by way of this explanation, we can quickly rectify the matter. As you are likely aware, we are
currently working with Wenatchee to resolve the fee issue as well.
Zayo is a "Telephone Business" under the Statutory Definition
The Revised Code of Washington ("RCW") provides clear direction that companies engaged in Zayo's
business are entitled to access municipal public rights -of -way without charge. RCW 35.21.860
states: "No city or town may impose a franchise fee or any other fee or charge of whatever nature
or description upon the . . . telephone business, as defined in RCW 82.16.010...". This is an
affirmative prohibition, and any agreement to the contrary is unenforceable.
Zayo is a telephone business under the statutory definition. Section 7(b)(iii) of RCW 82.16.010
defines "telephone business" as "the business of providing network telephone service." In turn,
Section 7(b)(iv) defines "telephone service" as "competitive telephone service or network telephone
service, or both." Section 7(b)(i) defines "competitive telephone service", pursuant to Section 5 of
RCW 82.04.065, as "the providing by any person of telecommunications equipment or apparatus,
or service." Section 27 defines "telecommunications service" as "the electronic transmission,
conveyance, or routing of voice, data, audio, video, or any other information or signals to a point,
or between or among points."
isZayo has always explicitly represented its business as the provision of telecommunications service to
the City. The Agreement identifies Zayo as a "telecommunications company providing
telecommunications services, including ... data services". See first paragraph of the Agreement.
Additionally, the Agreement acknowledges Zayo's intention "to construct, install, operate, maintain,
and repair fiber optic facilities to offer and provide telecommunications service." Also, Zayo is
registered by the Utilities and Transportation Commission as a "Competitive Telecommunications
Company".
Going back to RCW 82.04.065, Section 7(b)(ii) defines "network telephone service" as "the
providing of telephonic, video, data, or similar communication or transmission for hire, via a
telephone network, toll line or channel, cable, microwave, or similar communication or transmission
system. 'Network telephone service' includes the provision of transmission to and from the site of
an internet provider via a telephone network, toll line or channel, cable, microwave, or similar
communication or transmission system." Again, Zayo consistently described its business model to
the City as providing the transmission of data from point-to-point via its fiber optic network (i.e.,
transmission system).
Therefore, we believe the City was on notice that Zayo is a telephone business under the specific
language of the relevant RCW provisions, and Section 17(A) of the Agreement is in direct violation of
Washington State law.
Subsequent to entering into the Agreement, Zayo has entered into many franchise agreements with
iWashington State municipalities, and those jurisdictions have consistently acknowledged the
Statewide prohibition against franchise fees. For example, Zayo's franchise with the City of Des
Moines, WA states: "Pursuant to RCW 35.21.860, the City is precluded from imposing a franchise
fee on a telephone business as defined in RCW 82.16.010... Franchisee hereby warrants that its
operations as authorized under this franchise are those of a telephone business as defined in RCW
82.16.010. As a result, the City will not impose a franchise fee under the terms of this ordinance."
Zayo's franchises with the cities of Milton, Bothell, Burien, Fife and others include similar language,
or no fee provision at all.
Washington State law prohibits the City from imposing franchise fees and other charges on a
telephone business' use of the public rights -of -way. Zayo is a telephone business under the
statutory definition. The vast majority of Washington State municipalities granting Zayo a franchise
have recognized this prohibition, explicitly and implicitly, leaving the City as an outlier.
For all of these reasons, Zayo respectfully requests that the City nullify Section 17(A) of the
Agreement. Please let me know what the next steps are to approve Zayo's request.
40 Thanks,
. Dylan T. DeVito
Associate General Counsel &
VP, Network Development
Zayo Group, LLC
925 NW 65th Street I Seattle, WA 98117
Office:303.414.1721 1 Mobile: 303-809-1498
dylan.clevitoPzayo.com I http://www.zayo.com
This email may contain confidential or attorney -client privileged information. The contents of this email are intended only for the
recipient(s) listed above. If you are not the intended recipient, you are directed not to read, disclose, distribute or otherwise use this
transmission. If you have received this email in error, please notify the sender immediately and delete the transmission. Delivery of this
message is not intended to waive any applicable privileges.
•
L_J
City of East Wenatchee, Washington
Ordinance No. 2013-11
AN ORDINANCE OF THE CITY OF EAST WENATCHEE granting a
non-exclusive Franchise to Zayo Group, LLC to construct, install,
operate, maintain, repair, or remove fiber optic cables within the public
ways of the City of East Wenatchee.
Zayo Group, LLC, a limited liability company organized and existing
under the laws of the State of Delaware ("Franchisee") is a competitive
telecommunications company providing telecommunication services,
including voice, Internet and data services, which desires to occupy the
City of East Wenatchee ("City") rights -of -ways to install, construct,
operate, and maintain its telecommunications facilities and network for
the purpose of providing services to its customers at locations within
the City; and
Franchisee has applied to the City for a non-exclusive franchise to
enter, occupy, and use public ways to construct, install, operate,
maintain, and repair fiber optic facilities to offer and provide
telecommunications service for hire, sale, or resale in the City of East
Wenatchee; and
The parties acknowledge that Franchisee has previously installed fiber
optic cable within the public rights -of -way of the City under a previous
Ordinance, and such facilities shall be governed by the terms and
conditions of this Ordinance upon the Effective Date; and
The 1934 Communications Act, as amended by the 1996
Telecommunications Act relating to telecommunications providers
recognizes and provides local government authority to manage the
public rights -of -way and to require fair and reasonable compensation on
a competitively neutral and nondiscriminatory basis; and
A franchise does not include, and is not a substitute for any other
permit, agreement, or other authorization required by the City,
including without limitation, permits required in connection with
construction activities in public ways which must be administratively
approved by the City after review of specific plans; and
isCity of East Wenatchee
Ordinance 2013-11
Page 1 of 40
Franchisee shall be responsible for its actual costs in using, occupying
and repairing public ways; and
The City and Franchisee desire to effectuate good coordination of the
use of the rights -of -way; and
RCW 35A.11.020 grants the City broad authority to regulate the use of
public rights -of -way and RCW 35A.47.040 authorizes the City to grant
franchises for the use of its streets, public ways, and properties.
The City Council finds that the franchise terms and conditions
contained in this ordinance are in the public interest.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City
of East Wenatchee as follows:
Section 1. Definitions. For the purposes of this Ordinance, the
following terms, phrases, words, and their derivations will have the
meanings given herein. 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 not
defined will have the meaning ascribed to those words in the East
• Wenatchee Municipal Code, or in the federal Communications Act of
1934 as amended, unless inconsistent herewith.
"Affiliate" means any Person who owns or controls, is owned by or
controlled by, or is under common ownership or control with
Franchisee.
"Cable Service" means the one-way transmission to subscribers of video
programming or other programming service and subscriber interaction,
if any, which is required for the selection or use of such video
programming or other programming service.
"City Council" means the governing body of the City.
"City Property" means all real property owned by the City whether in
fee ownership or other interest within the City's public street and alley
rights -of -way.
"Conduit" means optical cable housing, jackets, or casing, and pipes,
tubes, or tiles used for receiving and protecting wires, lines, cables, and
communication and signal lines.
"Costs" means costs, expenses, and other financial obligations of any
kind whatsoever.
City of East Wenatchee
Ordinance 2013-11
Page 2 of 40
"Dark Fiber" means properly functioning optical cable which is not used
or available for use by Franchisee or the general public.
"Effective Date" means five days following the publication of this
Franchise or a summary thereof occurs in an official newspaper of the
City as provided by law.
"Facilities" means, collectively, any and all telecommunications
transmission systems and appurtenances owned by Franchisee, now
and in the future, in the Franchise Area, including, but not limited to,
wire, radio, optical cable, electromagnetic or other similar types of
equipment and related appurtenances in any way comprising part of
the System.
"FCC" means the Federal Communications Commission or its
designated representative.
"Franchise Area" means the area within the jurisdictional boundaries of
the City, including annexed area, to be served by Franchisee as
specified in this Franchise.
• "Incremental Costs" means the actual and necessary costs incurred
which exceed costs which would have otherwise been incurred.
Incremental costs shall not include any part, portion, or pro -ration of
costs, of any kind whatsoever, including without limitation overhead or
labor costs, which would have otherwise been incurred.
"Optical Cable" means wires, lines, cables and communication and
signal lines used to convey communications by fiber optics.
"Person" means any individual, firm, partnership, association,
corporation, company or organization of any kind.
"Public Way" or "Right -of -Way" means any highway, street, road,
sidewalk, alley or other public right of way or public utility easement
under the jurisdiction and control of the City which has been acquired,
established, dedicated or devoted to such purposes.
"Telecommunications" means the transmission, between or among
points specified by the user, of information of the user's choosing,
without change in the form or content of the information as sent and
received.
iCity of East Wenatchee
Ordinance 2013-11
Page 3 of 40
"Telecommunications Applications Fees and Charges" includes fees and
charges connected to right-of-way management, construction permit,
permit design fee, building permit, encroachment permit, inspections
and pavement restoration
"Telecommunications Service" means the offering of
telecommunications for a fee directly to the public, or to such classes of
users as to be effectively available directly to the public, regardless of
the facilities used.
"Telecommunications System" or "System" means only those facilities
necessary for Franchisee to provide Telecommunications Service.
"Underground Facilities" means facilities located under the surface of
the ground, other than underground foundations or supports for
overhead facilities.
"Utility Poles" means poles, and crossarms, devices, and attachments
directly affixed to such poles which are used for the transmission and
distribution of electrical energy, signals, or other methods of
communication.
. Section 2. Franchise.
A. Subject to the terms and conditions of this Franchise, the City
grants Franchisee a non-exclusive franchise and master permit to enter,
occupy, and use public ways for constructing, installing, operating,
maintaining, repairing, and removing telecommunications facilities
necessary to provide telecommunications services. Except as expressly
provided otherwise in this Franchise, Franchisee shall construct,
install, operate, maintain, repair, and remove its facilities at its
expense.
B. Nothing in this Franchise grants authority to Franchisee to enter,
occupy, or use City property.
Any rights, privileges, and authority granted to Franchisee under this
Franchise are subject to the legitimate rights of the police power of the
City to adopt and enforce general ordinances necessary to protect the
safety and welfare of the public, and nothing in this Franchise excuses
Franchisee from its obligation to comply with all applicable general
laws enacted by the City pursuant to such power. Any conflict between
the terms or conditions of this Franchise and any other present or
future exercise of the City's police powers will be resolved in favor of the
exercise of the City's police power.
City of East Wenatchee
Ordinance 2013-11
Page 4 of 40
D. Nothing in this Franchise excuses Franchisee of its obligation to
identify its facilities and proposed facilities and their location or
proposed location in the public ways and to obtain use and/or
development authorization and permits from the City before entering,
occupying, or using public ways to construct, install, operate, maintain,
repair, or remove such facilities.
E. Nothing in this Franchise excuses Franchisee of its obligation to
comply with applicable codes, rules, regulations, and standards subject
to verification by the City of such compliance.
F. Nothing in this Franchise shall be construed to limit taxing
authority or other lawful authority to impose charges or fees, or to
excuse Franchisee of any obligation to pay lawfully imposed charges or
fees.
G. Nothing in this Franchise grants authority to Franchisee to
impair or damage any City property, public way, other ways or other
property, whether publicly or privately owned.
H. Nothing in this Franchise shall be construed to create a duty upon
the City to be responsible for construction of facilities or to modify
public ways to accommodate Franchisee's facilities.
I. Nothing in this Franchise grants authority to Franchisee to
provide or offer cable service as cable service is defined in 47 U.S.C.
522(6) or Internet Protocol Television ("IPTV") Service.
J. Franchisee may use the wired facilities authorized by this
Franchise for the transmission of telecommunications service only as
expressly provided in this Franchise.
K. Nothing in this Franchise shall be construed to create, expand, or
extend any liability of the City to any third party user of Franchisee's
facilities or to otherwise recognize or create third party beneficiaries to
this Franchise.
L. Nothing in this Franchise shall be construed to permit Franchisee
to unlawfully enter or construct improvements upon the property or
premises of another.
Section 3. Term. The primary term of this Franchise is five years
from the effective date of this Franchise. The Franchise will
automatically renew for successive periods of five years (successive
terms) each unless cancelled at the end of a term by either party by
City of East Wenatchee
Ordinance 2013-11
Page 5 of 40
written notice to the other party no less than 180 calendar days prior to
the end of the primary term or the then current successive term.
Section 4. Location of Facilities.
A. Franchisee must place its facilities underground except as
otherwise expressly provided herein. Subject to the terms and
conditions of this Franchise, Franchisee may place optical cable, optical
cable housing, and splicing connections on existing utility poles as
overhead facilities if approved by the owner of the utility poles. All
other facilities, including, without limitation, facilities required to
operate or maintain such optical cable and optical cable housing, and
splicing connections must be underground facilities if they are located
in a public way.
Nothing contained in this Section requires Franchisee to construct,
operate, and maintain underground any ground -mounted
appurtenances such as subscriber taps, line extenders, system passive
devices (splitters, directional couplers), amplifiers, stand-by and other
power supplies, network reliability units, pedestals, or other related
equipment.
B. Franchisee's facilities shall not unreasonably interfere with the
use of public ways or City property by the City, the general public, or
other persons or entities authorized to enter, occupy, or use public ways
or City property. Whenever new facilities will exhaust the capacity of a
public way to reasonably accommodate future users or facilities, the
Franchisee shall provide nondiscriminatory access to its facilities to
future users and facilities
C. Franchisee shall not impair or damage any City property, public
way, other ways or other property, whether publicly or privately owned.
D. Franchisee shall provide the City with information in such form
requested by the City which accurately reflects the horizontal and
vertical location and configuration of all of Franchisee's facilities.
Franchisee shall provide the City with updated information annually or
upon request by the City.
E. Franchisee shall relocate its facilities at the reasonable request of
the City when there is construction, alteration, repair or improvement
of a public way. Franchisee shall complete the relocation by the date
specified by the City, unless the City, or a reviewing court, establishes a
later date for completion, after a showing by Franchisee that the
City of East Wenatchee
Ordinance 2013-11
Page 6 of 40
• relocation cannot be completed by the dates specified using best efforts
and meeting safety and service requirements. Franchisee shall relocate
its facilities at its expense except:
(1)Where the Franchisee had paid for the relocation costs of the same
facilities at the request of the City within the past five years, the
Franchisee's share of the cost of relocation will be paid by the City if
it requested the subsequent relocation
(2) Where the Franchisee has an ownership share of the existing
utility poles upon which its optical cable and optical cable housing
are located as overhead facilities, the additional incremental cost of
underground relocation, or as provided for in an approved tariff if
less, will be paid by the City if the City requires the underground
relocation.
(3)Where the City requests relocation of underground facilities solely
for aesthetic purposes, the cost of relocation shall be paid by the City,
provided, however, in no event shall a request to the City to relocate
overhead facilities to underground be considered to be made for
aesthetic purposes. Franchisee is authorized to place optical cable
and optical cable housing on existing utility poles as overhead
is facilities only as an exception to pre-existing City policies which
require undergrounding, and the cost of relocating overhead facilities
to underground shall be paid by the Franchisee except as provided in
Section 4(E)(2).
(4)Where the construction, alteration, repair or improvement of a
public way is primarily for private benefit (be it a developer or
otherwise), the Franchisee may seek reimbursement from the private
party or parties for the cost of relocation in the same proportion as
their contribution to the costs of the project, taking into account the
impact of the project; provided, however, in no event shall the City be
considered a private party for purposes of seeking reimbursement
under this section.
F. Franchisee shall relocate its facilities at its expense at the request
of the City in the event of an unforeseen emergency that creates an
immediate threat to the public safety, health or welfare.
G. Franchisee shall install its Facilities in alleys rather than streets
wherever economically reasonable and technically feasible (unless
otherwise authorized by the Public Works Director).
• City of East Wenatchee
Ordinance 2013-11
Page 7 of 40
• H. Franchisee shall comply with Municipal Codes and requirements
regarding historic districts.
Section 5. Pole, Structures and Property Owned by Others.
Franchisee must obtain written approval from the owners of utility
poles, structures and property not owned by Franchisee prior to
attaching to or otherwise using such poles, structures or property, and
provide proof of such approval to the City. In the cases where the City
owns the utility poles or structures the Franchisee shall comply with
the Municipal Code provisions as preparation for a specific project plan
and permit submittal. The City makes no representation and assumes
no responsibility for the availability of utility poles, structures, and
property owned by third parties for the installation of Franchisee's
facilities. The City shall not be liable for the unavailability of utility
poles, structures, and property owned by the City or third parties for
any reason whatsoever. The installation of facilities by Franchisee on or
in the poles, structures, or property owned by others shall be subject to
and limited by the owner's authority to enter, occupy, and use public
ways. In the event that the authority of the owner of poles, structures,
or property to enter, occupy, and use the public ways either expires,
terminates, or is cancelled, the authority of Franchisee to construct,
install, operate, maintain, and repair Franchisee's facilities at such
locations may be immediately cancelled at the sole option of the City.
The City shall not be liable for the costs for removal of facilities arising
from expiration, termination, or cancellation of any pole owner's
authority to enter, occupy, or use public ways for any reason
whatsoever.
Section 6. Construction and Installation Requirements.
A. The technical performance of the facilities must meet or exceed all
applicable technical standards authorized or required by law, regardless
of the transmission technology utilized. The City will have the full
authority permitted by applicable law to enforce compliance with these
technical standards.
B. All installations of facilities will be durable and installed in
accordance with good engineering, construction, and installation
practices.
C. All facilities shall be constructed and installed in such manner
and at such points so as not to inconvenience City or public use of the
public ways or to adversely affect the public health, safety or welfare
40 City of East Wenatchee
Ordinance 2013-11
Page 8 of 40
• and in conformity with plans approved by the City, except in instances
in which deviation may be allowed by the City.
D. The construction plans and Franchisee's operations shall conform
to all federal, state, local, and industry codes, rules, regulations,
standards and laws. Franchisee must cease work immediately if the
City determines that Franchisee is not in compliance with such codes,
rules, regulations, or standards, and may not begin or resume work
until the City determines that Franchisee is in compliance. The City
shall not be liable for any costs arising out of delays occurring as a
result of such work stoppage.
E. The Telecommunications System constructed, maintained and
operated by virtue of this Franchise, shall be so constructed,
maintained and operated in accordance with all applicable engineering
codes adopted or approved by the City, State of Washington, federal
government and/or engineering profession and in accordance with any
applicable Statutes of the State of Washington, rules and regulations of
the applicable Washington regulatory authority, Ordinances of the City
or of any other governmental regulatory commission, board or agency
having jurisdiction over Franchisee.
F. Franchisee shall secure the required permits, licenses, or other
forms of approval needed to lawfully occupy and use public ways.
Franchisee shall have the sole responsibility for obtaining, at its own
cost and expense, all permits, licenses, or other forms of approval or
authorization necessary to construct, operate, maintain or repair or
expand the System, and to construct, maintain and repair any part
thereof.
G. Franchisee or its designee shall have the authority to trim trees or
branches measuring up to two inches in caliper on public property or
which overhang streets, alleys, sidewalks and public ways of the City so
as to prevent the branches of such trees from coming in contact with
wires and cables of the Franchisee. Franchisee or its designee shall
give prior written notice and shall obtain approval from the Public
Works Director before trimming trees measuring more than two inches
in caliper. The City agrees to either approve of Franchisee's request or
to meet with Franchisee to review the proposed tree trimming within
two business days of the receipt of Franchisee's written notice.
Franchisee takes full responsibility for removing debris when the work
is complete. All trimming is to be done at the sole expense and
responsibility of Franchisee. Franchisee is solely responsible for
City of East Wenatchee
Ordinance 2013-11
Page 9 of 40
• property or tree damage caused by it, and must full restore any such
property or tree damage when so requested by the City. In an
emergency, Franchisee or its designee shall have the right to trim trees
without prior approval from the City.
Trimming of trees and shrubbery within or overhanging the public ways
to prevent contact with Franchisee's Facilities shall be done in such a
manner to cause the minimum amount of damage to trees and shrubs.
If trees are excessively damaged as a result of the work undertaken by
or on behalf of Franchisee, Franchisee shall pay the City, within 30
days of submission of a statement by the City, the reasonable cost of
any treatment required to preserve a tree or shrub or the cost for
removal and replacement of the tree or shrub with landscaping of equal
value or the value of the tree or shrub prior to the damage or removal,
as determined by the Public Works Director or other authorized agent
of the City. Any trimming or removal of trees or shrubs shall be done in
full compliance with the City's Ordinances and all other laws or
regulations of the City.
H. Neither approval of plans by the City nor any action or inaction by
the City shall relieve Franchisee of any duty, obligation, or
. responsibility for the competent design, construction, and installation of
its facilities. Franchisee is solely responsible for the supervision,
condition, and quality of the work done, whether it is performed by
itself or by its contractors, agents, or assigns.
I. Except as to emergency repairs, Franchisee shall, prior to
excavating within any street, alley or other public place, and installing
any conduit, overhead cable or equipment therein, file with the Public
Works Director plans and specifications thereof showing the work to be
done, the location and nature of the installation to be made, repaired or
maintained, and a schedule showing the times of beginning and
completion and shall secure a permit from the City before proceeding
with any such work. The Franchisee shall conform to all requirements
of the Municipal Code (as enacted or as amended).
J. All construction and/or maintenance work as provided herein shall
be performed in conformity with the plans and specifications filed with
the City and with the permit or permits issued, except in instances in
which deviation may be allowed thereafter in writing pursuant to an
application by the Franchisee.
K. Street excavations shall be dealt with through the standard Right -
of -Way permitting process (East Wenatchee Municipal Code Chapter
City of East Wenatchee
Ordinance 2013-11
Page 10 of 40
12.04 (as enacted or as amended)). The City shall not unreasonably
withhold or delay issuing the applicable permit Line extensions also
require early consultation with the City to look at corridors and where
Facilities shall be placed. However, in the event of an emergency
requiring immediate action by Franchisee for the protection of the
Facilities, City property or other persons or property, Franchisee may
proceed without first obtaining the normally required permits. In such
event Franchisee must (1) take all necessary and prudent steps to
protect, support, and keep safe from harm the Facilities, or any part
thereof; City property; or other persons or property, and to protect the
public welfare, health and safety; and (2) as soon as possible thereafter,
must obtain the required permits and comply with any mitigation
requirements or other conditions in the after -the -fact permit.
L. Unless such condition or regulation is in conflict with a federal or
state requirement, the City may condition the granting of any permit or
other approval that is required under this Franchise, in any manner
reasonably necessary for the safe use and management of the public
right-of-way or the City's property including, by way of example and not
limitation, maintaining proper distance from other utilities, protecting
the continuity of pedestrian and vehicular traffic and Rights -of -Way
improvements, private facilities and public safety.
M. Whenever necessary, after construction or maintaining any of
Franchisee's Facilities within the Rights -of -Way, the Franchisee shall,
without delay, and at Franchisee's sole expense, remove all debris and
restore the surface disturbed by Franchisee as nearly as possible to as
good or better condition as it was in before the work began. Franchisee
shall replace any property corner monuments, survey reference or
equipment that were disturbed or destroyed during Franchisee's work
in the Rights -of -Way. Such restoration shall be done in a manner
consistent with applicable codes and laws and to the City's satisfaction
and specifications where applicable.
N. Within 30 days of the effective date of this Franchise, Franchisee
shall provide the City with GIS level maps in Washington State Plane
Coordinates showing the size and location of the Facilities within the
Franchise Area subject to the City's agreement to maintain the
confidentiality of such information to the extent allowed by law. Before
February 1 of each year, Franchisee shall provide the City with updated
GIS level maps. The City agrees that it will comply with all state and
federal laws prohibiting disclosure of Franchisee's maps and
information to any third party to the extent allowed by law.
City of East Wenatchee
Ordinance 2013-11
Page 11 of 40
O. Within 30 days of receiving a written request from the City,
Franchisee must provide the City with maps identifying the location of
Franchisee's Facilities located within a specific public way in a format
adequate for geographic information system and Computer Aided
Design (CAD) usage.
P. Franchisee shall at all times keep up-to-date maps and records
showing the location and sizes of all Franchisee facilities installed by it
in the Franchise Area. Such maps and records shall be kept in
Franchisee's district operating office and shall be subject to inspection
at all reasonable times by proper officials or agents of said City.
Franchisee shall provide at the City's request a copy of facilities maps
for the City's use.
Q. Any map or information furnished to the City pursuant to this
Franchise shall remain the Franchisee's proprietary information for all
purposes to the extent allowed by law.
R. Franchisee shall provide locates and field verify its facilities at no
cost to the City.
S. Franchisee shall be solely and completely responsible for
workplace safety and safe working practices on its job sites within the
Franchise area, including safety of all persons and property during the
performance of any work.
T. All of Franchisee's underground facilities shall be laid in
accordance with current City regulations and project permit
requirements. Unless otherwise approved by the Public Works
Director, underground facilities must maintain (parallel) ten feet of
separation from water mains and sewer mains. Franchisee shall
restore the public way to pre -construction condition or better.
Franchisee shall restore all landscaping as close to preconstruction
condition as possible. Franchisee agrees to pay all costs and
expenditures required on Rights -of -Way as a result of settling,
subsidence, or any other need for repairs or maintenance resulting from
excavations made by Franchisee for necessary trench patch
maintenance until the next paving job. Favorable weather conditions
permitting, Franchisee agrees to repair Rights -of -Way as a result of
settling, subsidence, or other needed repairs or maintenance resulting
from excavations made by the Franchisee upon 48 hours notice
excluding weekends and holidays. If Franchisee fails to undertake such
repairs as herein provided, the City may perform the repairs at
Franchisee's expense.
City of East Wenatchee
Ordinance 2013-11
Page 12 of 40
In U. Franchisee shall notify the City in advance of any work in the
Right -of -Way that involves excavation. Franchisee shall provide
documentation in advance to the City for street cuts. Design review is
not required where trenching does not occur or for routine repair and
maintenance.
Section 7. Coordination of Construction and Installation
Activities and Other Work.
A. Franchisee shall coordinate its construction and installation
activities and other work with the City and other users of the public
ways at least annually or as determined by the City.
B. All construction or installation locations, activities and schedules
shall be coordinated, as ordered by the City, to minimize public
inconvenience, disruption or damages.
C. At least 48 hours prior to entering a public way to perform
construction and installation activities or other work, Franchisee shall
give notice, at its cost, to owners and occupiers of property adjacent to
such public ways indicating the nature and location of the work to be
performed. Such notice shall be physically posted by door hanger.
. Franchisee shall make a good faith effort to comply with the property
owner or occupier's preferences, if any, on location or placement of
underground facilities, consistent with sound engineering practices.
D. Franchisee shall make available and accept the co -location of
property of others within trenches excavated or used by Franchisee in
the public ways provided the costs of the work are fairly allocated
between the parties.
E. By February 1 of each year, Franchisee shall provide the City with
a schedule of its proposed construction or installation activities and
other work in, around, or that may affect the public ways or City
property.
F. By May 1 of each year, the respective representatives of the City,
Franchisee, and other utilities and service providers shall meet to share
and discuss their multi -year plan for public way construction. The City
shall coordinate the meetings and provide notice to Franchisee.
G. The City shall give reasonable advance notice to Franchisee of
plans to open public ways for construction or installation of facilities;
provided, however, the City shall not be liable for damages for failure to
provide such notice. When such notice has been given, Franchisee shall
City of East Wenatchee
Ordinance 2013-11
Page 13 of 40
provide information requested by the City regarding Franchisee's future
plans for use of the public way to be opened. When notice has been
given, Franchisee may only construct or install facilities during such
period that the City has opened the public way for construction or
installation.
Section 8. Temporary Removal, Adjustment or Alteration of
Facilities.
A. Franchisee shall temporarily remove, adjust or alter the position
of its facilities at its cost at the request of the City for public projects,
events, or other public operations or purposes.
B. Franchisee shall locate the precise horizontal and vertical location
of its underground facilities by excavating upon request of the City. If
the City's request is in support of a City project, the Franchisee shall
complete this service within 14 days at no cost to the City. If the City's
request is in support of a third party's project, the Franchisee shall be
entitled to recover its cost from the project sponsor.
C. If any person requests permission from the City to use a public
way for the moving or removal of any building or other object, the City
• shall, prior to granting such permission, require such person or entity to
make any necessary arrangements with Franchisee for the temporary
removal, adjustment or alteration of Franchisee's facilities to
accommodate the moving or removal of said building or other object. In
such event, Franchisee shall, at the cost of the person desiring to move
or remove such building or other object, remove, adjust or alter the
position of its facilities which may obstruct the moving or removal of
such building or other object, provided that:
(1)The moving or removal of such building or other object which
necessitates the temporary removal, adjustment or alteration of
facilities shall be done at a reasonable time and in a reasonable
manner so as to not unreasonably interfere with Franchisee's
business, consistent with the maintenance of proper service to
Franchisee's customers;
(2) Where more than one route is available for the moving or removal
of such building or other object, such building or other object shall be
moved or removed along the route which causes the least
interference with the operations of Franchisee, in the sole discretion
of the City;
City of East Wenatchee
Ordinance 2013-11
Page 14 of 40
. (3)The person obtaining such permission from the City to move or
remove such building or other object may be required to indemnify
and save Franchisee harmless from any and all claims and demands
made against it on account of injury or damage to the person or
property of another arising out of or in conjunction with the moving
or removal of such building or other object, to the extent such injury
or damage is caused by the negligence of the person moving or
removing such building or other object or the negligence of the agents
or employees of the person moving or removing such building or
other object; and
(4) Completion of notification requirements by a person who has
obtained permission from the City to use a public way for the moving
or removal of any building or other object shall be deemed to be
notification by the City.
D. The City may require Franchisee to temporarily remove, adjust or
alter the position of Franchisee's facilities as the City may reasonably
determine to be necessary at no cost to the City for work deemed needed
by the City in the Rights -of -Way. The City shall not be liable to
Franchisee or any other party for any direct, indirect, consequential,
• punitive, special or other damages suffered as a direct or indirect result
of the City's actions.
E. The temporary removal, adjustment or alteration of the position of
Franchisee's facilities shall not be considered relocation for any purpose
whatsoever.
Section 9. Safety and Maintenance Requirements.
A. All work authorized and required under this Franchise will be
performed in a safe, thorough, and workmanlike manner.
B. Franchisee, in accordance with applicable federal, state, and local
safety requirements shall, at all times, employ ordinary care and shall
use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injury, or nuisance to occur.
All facilities, wherever situated or located, shall at all times be kept in a
good, safe, and suitable condition. If a violation of a safety code or other
applicable regulation is found to exist by the City, the City may, after
discussions with Franchisee, establish a reasonable time for Franchisee
to make necessary repairs. If the repairs are not made within the
established time frame, the City may make the repairs itself at the cost
of the Franchisee or have them made at the cost of Franchisee.
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• C. If Franchisee fails to commence, pursue or complete any work
required by law, this Franchise or any applicable permit to be done in
any public way within the time prescribed and to the satisfaction of the
City, the City may at its discretion cause the work to be done.
Franchisee shall pay to the City the reasonable costs of the work in an
itemized report provided by the City to Franchisee within 30 days after
receipt of such report.
D. Franchisee, and any person acting on its behalf, shall provide a
traffic control plan that conforms to the latest edition of the Manual of
Uniform Traffic Control Devices (MUTCD). Said plan shall use suitable
barricades, flags, flagmen, lights, flares, and other measures as
required for the safety of all members of the general public during the
performance of work, of any kind whatsoever, in public ways to prevent
injury or damage to any person, vehicle, or property. Franchisee shall
implement and comply with its approved traffic control plan during
execution of its work. The traffic control plan shall be developed and
kept on site in Franchisee's possession for all work impacting vehicular
and pedestrian traffic. Prior approval is not required of traffic control
plans. Traffic control plans may be modified as necessary by the
Franchisee to achieve effective and safe traffic control. All road closures
. requested by Franchisee require a detour plan submitted at least 48
hours in advance and prior City approval unless there is an emergency.
E. Franchisee shall maintain its facilities in proper working order.
Franchisee shall restore its facilities to proper working order upon
receipt of notice from the City that facilities are not in proper working
order. The City may, after discussions with Franchisee, establish a
reasonable time for Franchisee to restore its facilities to proper working
order. If the facilities are not restored to proper working order within
the established time frame, the City may restore the facilities to proper
working order or have them restored at the cost of Franchisee.
F. The City shall have the right to inspect all construction and
installation work performed by Franchisee pursuant to this Franchise
to the extent necessary to ensure compliance by Franchisee. On an
ongoing basis, Franchisee shall certify to the City that Franchisee's
work is being performed and completed in a satisfactory manner.
G. The City reserves the right to lay, and permit to be laid, sewer,
electric, phone, gas, water and other pipelines, cables, conduits and
related appurtenances and to do, or permit to be done, any underground
or overhead work in, across, along, over or under a public way or other
City of East Wenatchee
Ordinance 2013-11
Page 16 of 40
• public place occupied by Franchisee. The City also reserves the right to
construct new streets and public utilities and to alter the design of
existing streets and public utilities. In performing such work, the City
shall not be liable to Franchisee for any damage, but nothing herein
shall relieve any other person or entity from the responsibility for
damages to Franchisee's Facilities. The City will use its best efforts to
provide Franchisee with reasonable advance notice of plans by other
persons to open the public ways.
H. On notice from the City that any work is being performed contrary
to the provisions herein, or in an unsafe or dangerous manner or in
violation of the terms of any applicable permit, laws, regulations,
ordinances or standards, the City may issue a stop work order and
Franchisee shall stop the work immediately. The City shall issue a stop
work order in writing, unless given verbally in the case of an
emergency, and provide the order to the individual doing work or post it
on the work site. A copy of the order shall be sent to Franchisee, and
the order must indicate the nature of the alleged violation or unsafe
condition and the conditions under which Franchisee may resume work.
Section 10. Removal of Unauthorized Facilities. Within 30 days
. following written notice from the City, Franchisee shall, at its expense,
remove unauthorized facilities and restore public Rights -of -Way and
other property to as good a condition as existed prior to construction or
installation of its facilities. Any plan for removal of said facilities must
be approved by the City prior to such work. Facilities are unauthorized
and subject to removal in the following circumstances:
A. Upon expiration, termination, or cancellation of this Franchise;
B. Upon abandonment of the facilities. Facilities shall be deemed
abandoned if they are unused by Franchisee for a period of 90days;
C. If the facilities were constructed or installed prior to the effective
date of this Franchise; unless such facilities were constructed or
installed upon the condition of subsequent approval of this Franchise
with the consent of the City;
D. If the facilities were constructed, installed, operated, maintained,
or repaired without the prior issuance of required use and/or
development authorization and permits;
isCity of East Wenatchee
Ordinance 2013-11
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• E. If the facilities were constructed or installed or are operated,
maintained or repaired in violation of the terms or conditions of this
Franchise; or
F. If the facilities are unauthorized for any reason whatsoever.
Provided, however, that the City may, in its sole discretion, allow a
Franchisee to abandon facilities in place. No facilities may be
abandoned in place without the express written consent of the City.
Upon consensual abandonment in place of facilities, the facilities shall
become property of the City, and Franchisee shall submit to the City an
instrument in writing, to be approved by the City, transferring to the
City the ownership of such facilities. The failure of Franchisee to submit
an instrument shall not prevent, delay, or impair transfer of ownership
to the City.
Section 11. Restoration of Public Ways and Other Property.
A. When Franchisee, or any person acting on its behalf, does any
work in or affecting any public way or other property, it shall, at its own
expense, promptly remove any obstructions therefrom and restore, at
Franchisee's cost, such ways and property to as good a condition as
• existed before the work was undertaken, unless otherwise directed by
the City.
B. If weather or other conditions do not permit the complete
restoration required by this section, the Franchisee shall temporarily
restore the affected ways or property. Such temporary restoration shall
be at the Franchisee's cost, and Franchisee shall promptly undertake
and complete the required permanent restoration when the weather or
other conditions no longer prevent such permanent restoration.
C. All restoration work is subject to inspection and final approval by
the City. If restoration is not made to the satisfaction of the City within
the established timeframe, the City may make the restoration itself at
the cost of Franchisee or have them made at the cost of Franchisee.
Section 12. Use and/or Development Authorization and Permits.
Franchisee shall obtain use, right-of-way construction, and/or
development authorization and required permits from the City and all
other appropriate regulatory authorities prior to constructing or
installing facilities or performing other work in a public way. The City
must act on applications for use and/or development authorization or
• City of East Wenatchee
Ordinance 2013-11
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• required permits within 60 days of receipt of a completed application,
unless Franchisee consents to a different time period.
A. Franchisee shall provide the following information for all facilities
that it proposes to construct or install:
(I)Engineering plans, specifications and a network map of the
proposed facilities and their relation to existing facilities, in a format
and media requested by the City in sufficient detail to identify:
a. The location and route of the proposed facilities;
b. When requested by the City, the location of all overhead and
underground public utility, telecommunication, cable, water,
sewer, drainage and other facilities in the public way along the
proposed route;
C. When requested by the City, the location(s), if any, for
interconnection with the telecommunication facilities of others;
d. The specific trees, structures, improvements, facilities and
obstructions, if any, that Franchisee proposes to temporarily or
permanently alter, remove or relocate.
• (2)If Franchisee is proposing to install overhead facilities, evidence of
Franchisee's authorization to use each utility pole along the proposed
route together with any conditions of use imposed by the pole
owner(s) for each pole; if the overhead facilities are subsequently
relocated underground, the Franchisee shall relocate underground at
no cost to the City. If the Franchisee proposes to install overhead
facilities on City -owned poles or structures, the Franchisee shall
comply with all applicable provisions of the East Wenatchee
Municipal Code.
(3)If Franchisee is proposing to install underground facilities in
existing ducts or conduits within the public ways, information in
sufficient detail to identify:
a. Evidence of ownership or authorization to use such ducts or
conduits;
b. Conditions of use imposed by the owner(s) of the ducts or
conduits;
C. If known to Franchisee or reasonably ascertainable to
Franchisee, the total capacity of such ducts or conduits; and
. City of East Wenatchee
Ordinance 2013-11
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• d. If known to Franchisee or reasonably ascertainable to
Franchisee, the amount of the total capacity within such ducts or
conduits which will be occupied by Franchisee's facilities.
(4)If Franchisee is proposing to install underground facilities in new
ducts or conduits within the public ways:
a. The location proposed for new ducts or conduits;
b. The total capacity of such ducts or conduits; and
C. The initial listing of colocated facilities located within
Franchisee constructed or installed ducts or conduits.
(5)A preliminary construction schedule and completion date together
with a traffic control plan in compliance with the MUTCD for any
construction.
(6)Information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate the
facilities.
(7) Such other documentation and information regarding the facilities
requested by the City.
B. The requirements of this section do not apply to installation of
optical cable necessary to connect a customer of Franchisee to a
previously approved facility; provided that neither excavation nor
trenching in the public right-of-way is required, that the optical cable
does not cross a distance of more than eighty (80) feet from its point of
connection to the approved facility and the point where it exits the
public right-of-way, that the optical cable connection meets or exceeds
all applicable technical standards required by law, that the optical cable
connection is durable and installed in accordance with good
engineering, construction, and installation practices and does not
interfere with the public use of the public ways, or adversely affect
public health, safety or welfare, that the optical cable connection is
constructed and installed to conform to all federal, state, local, and
industry codes, rules, regulations, and standards, and that the optical
cable connection does not damage or impair the City's public way or
property.
C. The requirements of this section do not apply to repair or
maintenance of a previously approved overhead facility; provided that
the location and size of the previously approved facility is not materially
• City of East Wenatchee
Ordinance 2013-11
Page 20 of 40
• changed, that no additional new facilities are constructed or installed,
that the repair or maintenance activities are conducted in accordance
with good engineering, repair, and maintenance practices and do not
interfere with the public use of the public ways, or adversely affect
public health, safety, or welfare, that maintenance or repair activities
conform to all federal, state, local, and industry codes, rules,
regulations, and standards, and that the repair or maintenance
activities comply with the Municipal Code.
D. Franchisee shall not be granted development authorization or
issued permits for construction or installation of new facilities unless
Franchisee is in full compliance with the provisions of this Franchise
and all of Franchisee's existing facilities have been expressly approved
by the City in writing.
Section 13. Hold Harmless and Assumption of Risk.
A. Hold Harmless.
(I)Franchisee hereby releases, covenants not to bring suit and agrees
to indemnify, defend and hold harmless the City, its elected officials,
officers, employees, agents, and representatives against any and all
• claims, costs, damages, judgments, awards, attorneys' fees or
liability, of any kind whatsoever, to any person, including claims by
Franchisee's own employees to which Franchisee might otherwise be
immune under Title 51 RCW, arising from injury or death of any
person or damage to property arising out of the negligent acts or
omissions of Franchisee, its officers, employees, agents or
representatives.
(2)Franchisee further releases, covenants not to bring suit and
agrees to indemnify, defend and hold harmless the City, its elected
officials, officers, employees, agents, and representatives from any
and all claims, costs, damages, judgments, awards, attorneys' fees or
liability to any person arising out of Franchisee's exercise of the
rights, privileges, or authority granted by this Franchise which are
made against the City, in whole or in part, due to the City's
ownership or control of the public ways or other City property, by
virtue of the City permitting the Franchisee's entry, occupancy or use
of the public ways, or based upon the City's inspection or lack of
inspection of work performed by Franchisee, its officers, employees,
agents or representatives.
• City of East Wenatchee
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. (3)These hold harmless covenants include, but are not limited to
claims against the City arising as a result of the acts or omissions of
Franchisee, its officers, employees, agents or representatives in
barricading, instituting trench safety systems or providing other
adequate warnings of any excavation, construction, or work in any
public way or other public place in performance of work or services
permitted under this Franchise.
(4)Franchisee further agrees to indemnify, hold harmless and defend
the City, its elected officials, officers, employees, agents, and
representatives against any claims for damages, including, but not
limited to, business interruption damages and lost profits, brought
by or under users of the Franchisee's facilities as the result of any
interruption of service due to damage or destruction of the user's
facilities caused by or arising out of damage or destruction of
Franchisee's facilities, except to the extent any such damage or
destruction is caused by or arises from the active sole negligence of
the City.
(5)In the event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the
• concurrent negligence of Franchisee and the City, Franchisee's
liability hereunder shall be only to the extent of Franchisee's
negligence.
(6)It is further specifically and expressly understood that the hold
harmless covenants provided herein constitutes the Franchisee's
waiver of immunity under Title 51 RCW. This waiver has been
mutually negotiated by the parties.
(7)Inspection or acceptance by the City of any work performed by
Franchisee at the time of completion of construction or installation
shall not be grounds for avoidance of any of these hold harmless
covenants. Said hold harmless obligations shall extend to claims
which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the
institution of any litigation.
(8)In the event that Franchisee refuses the tender of defense in any
suit or any claim, said tender having been made pursuant to the hold
harmless covenants contained herein, and said refusal is
subsequently determined by a court having jurisdiction (or such
other tribunal that the parties shall agree to decide the matter), to
have been a wrongful refusal on the part of Franchisee, then
• City of East Wenatchee
Ordinance 2013-11
Page 22 of 40
• Franchisee shall pay and be responsible for all of the City's costs for
defense of the action, including all reasonable expert witness fees
and reasonable attorneys' fees and the reasonable costs of the City,
including reasonable attorneys' fees of recovering under this hold
harmless clause.
B. Assumption of Risk.
(1)Franchisee assumes the risk of damage to its facilities located in
the City's public ways from activities conducted by third parties or
the City, its elected officials, officers, employees, agents, or
representatives. Franchisee releases and waives any and all claims
against the City, its elected officials, officers, employees, agents, and
representatives for damage to or destruction of the Franchisee's
facilities except to the extent any such damage or destruction is
caused by or arises from active sole negligence of the City.
(2)Franchisee bears sole responsibility to insure its property.
Franchisee shall ensure that its insurance contracts waive
subrogation claims against the City, its elected officials, officers,
employees, agents, and representatives, and Franchisee shall
indemnify, defend and hold harmless the City, its elected officials,
• officers, employees, agents, and representatives against any and all
subrogation claims if it fails to do so.
Section 14. Insurance. Franchisee shall obtain and maintain, at its
cost, worker's compensation insurance in accordance with State law
requirements and the following liability insurance policies insuring
both Franchisee and the City, and the City's elected and appointed
officers, officials, agents, employees, representatives, engineers,
consultants, and volunteers as additional insureds against claims for
injuries to persons or damages to property which may arise from or in
connection with the exercise of the rights, privileges, and authority
granted to Franchisee:
A. Comprehensive general liability insurance, written on an
occurrence basis, with limits not less than:
(1)$5,000,000.00 for bodily injury or death to each person;
(2)$5,000,000.00 for property damage resulting from any one
accident; and
(3)$5,000,000.00 for umbrella coverage for all other types of liability.
• City of East Wenatchee
Ordinance 2013-11
Page 23 of 40
19 B. Automobile liability for owned, non -owned and hired vehicles with
a limit of $3,000,000.00 for each person and $3,000,000 for each
accident.
C. Workers' compensation within statutory limits and employer's
liability insurance with limit of not less than $1,000,000.
D. Comprehensive form premises -operations, explosions and collapse
hazard, underground hazard and products completed hazard with limit
of not less than $3,000,000.
E. The liability insurance policies required by this section shall be
maintained by Franchisee throughout the term of this Franchise, such
other periods of time during which Franchisee's facilities occupy public
ways, and while Franchisee is engaged in the removal of its facilities.
Franchisee shall provide an insurance certificate, together with an
endorsement naming the City, and its elected and appointed officers,
officials, agents, employees, representatives, engineers, consultants,
and volunteers as additional insureds, to the City prior to the
commencement of any construction or installation of any facilities
pursuant to this Franchise or other work in a public way. Any
deductibles or self -insured retentions must be declared to and approved
by the City. Payment of deductibles and self -insured retentions shall be
the sole responsibility of Franchisee. The insurance certificate required
by this section shall contain a clause stating that coverage shall apply
separately to each insured against whom a claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
Franchisee's insurance shall be primary insurance with respect to the
City, its officers, officials, employees, agents, consultants,
representatives, engineers and volunteers. Any insurance maintained
by the City, its officers, officials, employees, consultants, agents, and
volunteers shall be in excess of the Franchisee's insurance and shall not
contribute to it.
F. In addition to the coverage requirements set forth in this section,
each such insurance policy shall contain an endorsement in a form
which substantially complies with the following:
"It is hereby understood and agreed that this policy may not be
canceled nor the intention not to renew be stated until 90 days
after receipt by the City, by registered mail, of a written notice
addressed to the Mayor of intent to cancel or not to renew."
City of East Wenatchee
Ordinance 2013-11
Page 24 of 40
G. At least 30 days prior to said cancellation or non -renewal,
Franchisee shall obtain and furnish to the City replacement insurance
policies meeting the requirements of this section.
Section 15. Performance Bond. Franchisee shall file with the City a
performance bond in the amount specified by the City at the time the
City grants Franchisee a requested construction permit. This bond
shall be maintained throughout the period of time that Franchisee is
performing work under such applicable construction permit. In the
event Franchisee fails to comply with any law, ordinance, or regulation
governing the Franchise, or fails to perform, observe, and fulfill each
term, condition and covenant of the Franchise, there shall be
recoverable, jointly and severally from the principal and surety of the
bond, any damage or loss suffered by the City.
Section 16. Security Fund. In addition to the performance bond,
Franchisee shall establish and maintain a security fund in the amount
of $8,000, at its cost, with the City by depositing such monies, letters of
credit, or other instruments in such form and amount acceptable to the
City within 30 calendar days of the effective date of this Franchise. No
sums may be withdrawn from the fund by Franchisee without consent
• of the City. The security fund shall be maintained at the sole expense of
Franchisee so long as any of the Franchisee's facilities occupy a public
way.
A. The fund shall serve as security for the performance of this
Franchise, including any claims, costs, damages, judgments, awards,
attorneys' fees or liability, of any kind whatsoever, the City pays or
incurs, including civil penalties, because of any failure attributable to
Franchisee to comply with the provisions of this Franchise or the codes,
ordinances, rules, regulations, standards, or permits of the City.
B. Before any sums are withdrawn from the security fund, the City
shall give written notice to Franchisee:
(1)Describing the act, default or failure to be remedied, or the claims,
costs, damages, judgments, awards, attorneys' fees or liability which
the City has incurred or may pay by reason of Franchisee's act or
default;
(2)Providing a reasonable opportunity for Franchisee to first remedy
the existing or ongoing default or failure, if applicable;
City of East Wenatchee
Ordinance 2013-11
Page 25 of 40
(3)Providing a reasonable opportunity for Franchisee to pay any
monies due the City before the City withdraws the amount thereof
from the security fund, if applicable; and
(4) Franchisee will be given an opportunity to review the act, default
or failure described in the notice with the City or his or her designee.
C. Franchisee shall replenish the security fund within 14 days after
written notice from the City that there is a deficiency in the amount of
the fund.
D. Insufficiency of the security fund shall not release or relieve
Franchisee of any obligation or financial responsibility.
Section 17. Taxes, Charges, and Fees.
A. RCW 35.21.860 prohibits the City from imposing a franchise fee
on a franchisee who is conducting a telephone business. Franchisee
represents that it will use the City's right-of-ways for a telephone
business purpose as defined by RCW 82.16.101. If this prohibition is
removed or does not apply, Franchisee agrees to pay the City an annual
franchise fee of $4,000. Franchisee will apprise the City annually in
• writing of this circumstance on the anniversary date of this Franchise.
B. Franchisee shall also pay and be responsible for all charges and
fees imposed to recover actual administrative expenses incurred by the
City that are directly related to receiving and approving this Franchise,
any use and/or development authorizations which may be required, or
any permit which may be required, to inspecting plans and
construction, or to the preparation of a detailed statement. Regular
application and processing charges and fees imposed by the City shall
be deemed to be attributable to actual administrative expenses incurred
by the City but shall not excuse Franchisee from paying and being
responsible for other actual administrative expenses incurred by the
City.
(1)Franchisee shall pay a franchise processing fee of $1,500.00 within
30 calendar days of the effective date of this Franchise.
(2) Franchisee shall pay fees according to applicable sections of the
Municipal Code.
C. Franchisee shall pay and be responsible for taxes permitted by
law.
City of East Wenatchee
Ordinance 2013-11
Page 26 of 40
D. Franchisee stipulates that all of its business activities within city
limits are taxable activities subject to the tax imposed by Chapter 4.32
East Wenatchee Municipal Code (as enacted or as amended).
E. In addition to penalties and other remedies for which Franchisee
may be subjected, the City reserves the right to impose site -specific
charges for placement of structures used to provide telecommunications
services. Unless otherwise agreed by the parties, such charges shall be
an amount equal to at least 100% of the costs of construction or
installation of such structures.
Section 18. Additional Ducts and Conduits.
A. Franchisee shall construct and install additional ducts and
conduits when and where requested by the City and related structures
necessary to access the ducts and conduits. Such ducts and conduits
shall be readily accessible and available for governmental use as
determined by the City in its reasonable discretion. Such ducts and
conduits shall not be used to provide telecommunications or cable
service for hire, sale, or resale to the general public unless otherwise
agreed by the parties. The City shall not be charged or responsible for
any more than the incremental costs to construct and install such ducts
and conduits, and the City shall not be charged or responsible for any
use, maintenance, or repair costs.
B. As a condition of being allowed to place optical cable, optical cable
housing, or splicing connections on existing utility poles as overhead
facilities, Franchisee shall construct, install, maintain, and repair dark
fiber, loops, splicing connections, and related structures necessary to
access the dark fiber, for governmental use, at all locations where
Franchisee constructs or installs facilities. Franchisee shall construct,
install, maintain, and repair four strands of dark fiber for governmental
use at all locations along any route constructed by Franchisee, unless
some other amount is mutually agreed by the parties for a particular
location. Loops, splicing connections, and related structures necessary
to access such dark fiber shall be constructed and installed by
Franchisee at locations designated by the City along any route
constructed by Franchisee under this Franchise. Such dark fiber, loops,
and splicing connections shall be readily accessible and available for
governmental use as determined by the City in its sole discretion. It is
the City's responsibility to reimburse the Franchisee for Franchisee's
actual costs to install the dark fiber service drops from the storage loops
into the City's buildings or facilities as required. Such costs shall be
isCity of East Wenatchee
Ordinance 2013-11
Page 27 of 40
provided to and approved by the City prior to commencement of any
construction of such service drops by Franchisee. All such dark fiber,
loops, splicing connections, and related structures shall be dedicated to
governmental use and shall not be used by Franchisee. All such dark
fiber, loops, splicing connections, and related structures shall not be
used by the City to provide telecommunications or cable service for hire,
sale, or resale to the general public unless otherwise agreed by the
parties.
C. Except as expressly provided in this section, Franchisee shall not
charge the City for any costs, of any kind whatsoever, for facilities
provided by Franchisee in accordance with this section.
Section 19. Access to Facilities and Universal Service.
A. Franchisee shall provide access to its facilities by hire, sale, or
resale on a nondiscriminatory basis. Franchisee shall make its
telecommunications services available to any customer within its
franchise area who shall request such service whenever feasible,
without discrimination as to the terms, conditions, rates or charges for
the Franchisee's services; provided, however, that nothing in this
section shall prohibit Franchisee from making any reasonable
classifications among differently situated customers.
B. Franchisee shall provide Internet access to users of Eastmont
Community Park and to users of City property, at locations requested
by the City, if it is practicable. Franchisee and the City (or the
Eastmont Metropolitan District, as applicable) may enter into a
separate agreement or agreements regarding the allocation of costs to
construct, install, operate, maintain, repair, and remove facilities
needed to provide such access; provided, however, that nothing herein
shall require the City to accept construction or installation of facilities
on City property.
Section 20. Acquisition of Facilities. Upon Franchisee's acquisition
of any facilities in the public way, or upon any addition or annexation to
the City of any area in which Franchisee has facilities, such facilities
shall immediately be subject to the terms of this Franchise without
further action of the City or Franchisee.
Section 21. One -Call. Franchisee is responsible for complying with
the provisions of Washington's One -Call statutes.
Is City of East Wenatchee
Ordinance 2013-11
Page 28 of 40
• Section 22. Vacation of Public Ways. The City reserves the right to
vacate any public way which is subject to rights, privileges, and
authority granted by this Franchise. If Franchisee has facilities in such
public way, the City shall reserve an easement for Franchisee.
Section 23. Duty to Provide Information. Within 30 days of a
written request from the City, Franchisee shall furnish the City with all
requested information sufficient to demonstrate:
A. That Franchisee has complied with all requirements of this
Franchise;
B. That taxes, fees, charges, or other costs owed or payable by
Franchisee have been properly collected and paid; and
C. The names of the users of Franchisee's facilities and the services
and products those users are providing to the public.
Franchisee's obligations under this section are in addition to those
provided elsewhere in this Franchise.
Section 24. Records.
A. Franchisee will manage all of its operations in accordance with a
policy of keeping its documents and records open and accessible to the
City. The City will have access to, and the right to inspect, any
documents and records of Franchisee and its affiliates that are
reasonably necessary for the enforcement of this Franchise or to verify
Franchisee's compliance with terms or conditions of this Franchise.
Franchisee will not deny the City access to any of Franchisee's records
on the basis that Franchisee's documents or records are under the
control of any affiliate or a third party.
B. All documents and records maintained by Franchisee shall be
made available for inspection by the City at reasonable times and
intervals; provided, however, that nothing in this section shall be
construed to require Franchisee to violate state or federal law regarding
subscriber privacy, nor shall this section be construed to require
Franchisee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature.
C. One copy of documents and records requested by the City will be
furnished to the City at the cost of Franchisee. If the requested
documents and records are too voluminous or for security reasons
cannot be copied or removed, then Franchisee may request, in writing
is City of East Wenatchee
Ordinance 2013-11
Page 29 of 40
• within ten days of the City's request, that the City inspect them at
Franchisee's local office. If any documents or records of Franchisee are
not kept in a local office and/or are not made available in copies to the
City, and if the City determines that an examination of such documents
or records is necessary or appropriate for the enforcement of this
Franchise, or to verify Franchisee's compliance with terms or conditions
of this Franchise, then all reasonable travel and related costs incurred
in making such examination shall be paid by Franchisee.
Section 25. Assignment or Transfer. Franchisee's rights,
privileges, and authority under this Franchise, and ownership or
working control of facilities constructed or installed pursuant to this
Franchise, may not, directly or indirectly, be transferred, assigned or
disposed of by sale, lease, merger, consolidation or other act of
Franchisee, by operation of law or otherwise, except as provided herein,
or without the prior written consent of the City, which consent shall not
be unreasonably withheld or delayed. Any transfer, assignment or
disposal of Franchisee's rights, privileges, and authority under this
Franchise, or ownership or working control of facilities constructed or
installed pursuant to this Franchise, may be subject to reasonable
conditions as may be prescribed by the City.
A. No rights, privileges, or authority under this Franchise shall be
assigned, transferred, or disposed of in any manner within twelve (12)
months after the effective date of this Franchise.
B. Absent extraordinary and unforeseeable circumstances, no facility
shall be assigned, transferred, or disposed of before construction of the
facility has been completed and restoration has been performed to the
satisfaction of the City.
C. Franchisee and the proposed assignee or transferee shall provide
and certify the following information to the City not less than15O days
prior to the proposed date of assignment, transfer, or disposal:
(1) Complete information setting forth the nature, terms and
conditions of the proposed assignment, transfer, or disposal;
(2) Any other information reasonably required by the City; and
(3) A transfer application fee in an amount to be determined by the
City to recover actual administrative costs directly related to
receiving and approving the proposed assignment, transfer, or
disposal.
City of East Wenatchee
Ordinance 2013-11
Page 30 of 40
• D. No assignment, transfer, or disposal may be made or shall be
approved unless the assignee or transferee has the legal, technical,
financial, and other requisite qualifications to operate, maintain, repair,
and remove facilities constructed or installed pursuant to this
Franchise and to comply with the terms and conditions of this
Franchise.
E. Any transfer, assignment, or disposal of rights, privileges, and
authority under this Franchise or ownership or working control of
facilities constructed or installed pursuant to this Franchise, without
prior written approval of the City pursuant to this section, shall be void
and is cause for termination of this Franchise.
F. Any transactions which singularly or collectively result in a
change of 50% or more of the ownership or working control (regardless
of the percentage) of the Franchisee or affiliated entities having 50% or
more of the ownership or actual working control (regardless of the
percentage) of Franchisee, or of control of the telecommunications
capacity or bandwidth of Franchisee, shall be considered an assignment
or transfer requiring City approval. Transactions between affiliated
entities are exempt from City approval; provided that, Franchisee shall
promptly notify the City prior to any proposed change in, or transfer of,
or acquisition by any other party of control of Franchisee. Every change,
transfer, or acquisition of control of Franchisee shall cause a review of
the proposed transfer. City approval shall not be required for
mortgaging purposes or if said transfer is from Franchisee to another
person controlled by Franchisee.
G. All terms and conditions of this Franchise shall be binding upon
all permitted successors and assigns of Franchisee and all persons who
obtain ownership or working control of any facility constructed or
installed pursuant to this Franchise.
Section 26. Violations, Noncompliance, and Other Grounds for
Termination or Cancellation.
A. This Franchise, and any right, privilege or authority of Franchisee
to enter, occupy or use public ways may be terminated or cancelled by
the City for the following reasons:
(1)Violation of or noncompliance with any term or condition of this
Franchise by Franchisee;
isCity of East Wenatchee
Ordinance 2013-11
Page 31 of 40
• (2) Violation of or noncompliance with the material terms of any use
and/or development authorization or required permit by Franchisee;
(3) Construction, installation, operation, maintenance, or repair of
facilities on, in, under, over, across, or within any public way without
Franchisee first obtaining use and/or development authorization and
required permits from the City and all other appropriate regulatory
authorities;
(4)Unauthorized construction, installation, operation, maintenance,
or repair of facilities on City property;
(5)Misrepresentation or lack of candor by or on behalf of Franchisee
in any application or written or oral statement upon which the City
relies in making the decision to grant, review or amend any right,
privilege or authority to Franchisee;
(6)Abandonment of facilities;
(7)Failure of Franchisee to pay taxes, fees, charges or costs when and
as due; or
(8)Insolvency or bankruptcy of Franchisee.
B. If the City believes that grounds exist for termination or
cancellation of this Franchise or any right, privilege or authority of
Franchisee to enter, occupy or use public ways, Franchisee shall be
given written notice and a reasonable period of time not exceeding
30days to furnish evidence:
(1)That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation, noncompliance, or
other grounds for termination or cancellation;
(2)That rebuts the alleged violation, noncompliance, or other grounds
for termination or cancellation; or
(3)That it would be in the public interest to impose some penalty or
sanction less than termination or cancellation.
C. In the event that Franchisee fails to provide evidence reasonably
satisfactory to the City as provided in subsection (B) of this section, the
City shall refer the apparent violation, noncompliance, or other grounds
for termination or cancellation to the City Council. The City Council
shall provide the Franchisee with notice and a reasonable opportunity
to be heard concerning the matter.
City of East Wenatchee
Ordinance 2013-11
Page 32 of 40
• D. If the City Council determines that the violation, noncompliance,
or other grounds above for termination or cancellation exist, then,
Franchisee shall, at the election of the City Council, forfeit all rights,
privileges and authority conferred under this Franchise or any use
and/or development authorization or permit granted by the City, and
this Franchise and any such use and/or development authorization or
permit may be terminated or cancelled by the City Council. The City
Council may elect, in lieu of the foregoing and without any prejudice to
any of its other legal rights and remedies, to pursue other remedies,
including obtaining an order compelling Franchisee into compliance or
to take corrective action, or to recover damages and costs incurred by
the City by reason of Franchisee's actions or omissions. The City
Council shall utilize the following factors in analyzing the nature,
circumstances, extent, and gravity of the actions or omissions of
Franchisee:
(1) Whether the misconduct was egregious;
(2)Whether substantial harm resulted;
(3) Whether the violation was intentional;
(4) Whether there is a history of prior violations of the same or other
requirements;
(5) Whether there is a history of overall compliance; and
(6)Whether the violation was voluntarily disclosed, admitted or
cured.
E. The City Council's choice of remedy shall not excuse Franchisee
from compliance with any term or condition of this Franchise or the
material terms of any use and/or development authorization or required
permit. Franchisee shall have a continuing duty to remedy any
violation, noncompliance, or other grounds for termination or
cancellation. Further, nothing herein shall be construed as limiting any
remedies that the City may have, at law or in equity, for enforcement of
this Franchise and any use and/or development authorization or permit
granted to Franchisee.
Section 27. Notices.
A. Any regular notice or information required or permitted to be
given to the parties under this Franchise may be sent to the following
addresses unless otherwise specified:
City of East Wenatchee
Ordinance 2013-11
Page 33 of 40
• The City: City of East Wenatchee
Attn: Mayor
271 9th St. N.E.
East Wenatchee, WA 98802
Franchisee: Zayo Group, LLC
1805 29th Street
Boulder, CO 80301
Attn: General Counsel, ZFTI
B. Franchisee shall additionally provide a phone number and
designated responsible officials to respond to emergencies. After being
notified of an emergency, Franchisee shall cooperate with the City and
make its best efforts to immediately respond to minimize damage,
protect the welfare, health and safety of the public and repair facilities
to restore them to proper working order. Annually, on request of the
City, Franchisee will meet with City emergency response personnel to
coordinate emergency management operations and, at least once a year,
at the request of the City, actively participate in emergency
preparations.
Section 28. Non Waiver. The failure of the City to exercise any
rights or remedies under this Franchise or to insist upon compliance
with any terms or conditions of this Franchise shall not be a waiver of
any such rights, remedies, terms or conditions of this Franchise by the
City and shall not prevent the City from demanding compliance with
such terms or conditions at any future time or pursuing its rights or
remedies.
Section 29. Eminent Domain. This Franchise is subject to the power
of eminent domain and the right of the City Council to repeal, amend or
modify the Franchise in the interest of the public. In any proceeding
under eminent domain, the Franchise itself shall have no value.
Section 30. Limitation of Liability. Administration of this
Franchise may not be construed to create the basis for any liability on
the part of the City, its elected officials, officers, employees, agents, and
representatives for any injury or damage; or by reason of any schedule
or specification review, inspection, notice and order, permission, or
other approval or consent by the City; for any action or inaction thereof
authorized or done in connection with the implementation or
City of East Wenatchee
Ordinance 2013-11
Page 34 of 40
• enforcement of this Franchise by the City; or for the accuracy of plans
submitted to the City.
Section 31. Damage to Facilities. Unless directly and proximately
caused by the active sole negligence of the City, the City shall not be
liable for any damage to or loss of any facilities as a result of or in
connection with any public works, public improvements, construction,
excavation, grading, filling, or work of any kind on, in, under, over,
across, or within a public way done by or on behalf of the City.
Section 32. Competitive Neutrality. In order to maintain a level
playing field among all similarly situated franchisees of the City, upon
the grant or renewal of another franchise in the Rights -of -Way where
material terms or conditions of this Franchise conflict with a change in
the Municipal Code, or the provisions of this Franchise provide a
material competitive advantage over another similarly situated
provider (such that it negatively impacts the City's ability to effectively
manage the Rights -of -Way), then the City may elect to renegotiate with
the Franchisee in good faith to modify the terms and provisions of this
Franchise to obtain material terms and conditions that, as a whole, are
competitively neutral between franchisees.
• Section 33. Governing Law and Venue. This Franchise and use of
the applicable public ways will be governed by federal law, the laws of
the State of Washington and local law. Franchisee agrees to be subject
to the jurisdiction of the courts of the State of Washington. Any action
relating to this Franchise must be brought in the Superior Court of
Washington for Chelan County, or in the case of a federal action, the
United States District Court for the Eastern District of Washington,
unless an administrative agency has primary jurisdiction.
Section 34. Severability. If any section, sentence, clause or phrase of
this Franchise or its application to any person or entity should be held
to be invalid or unconstitutional by a court of competent jurisdiction,
such invalidity or unconstitutionality will not affect the validity or
constitutionality of any other section, sentence, clause or phrase of this
Franchise or its application to any other person or entity; provided that,
if any term or condition of this Franchise relating to Franchisee's right,
privilege, or authority to place optical cable, optical cable housing, and
splicing connections on existing utility poles as overhead facilities is
held to be invalid or unconstitutional by a court of competent
jurisdiction, Franchisee's authority to construct, install, operate,
maintain, or repair overhead facilities shall be deemed void ab initio,
isCity of East Wenatchee
Ordinance 2013-11
Page 35 of 40
• any overhead facilities shall be deemed to be unauthorized, and
Franchisee shall be authorized only to place facilities underground.
Section 35. Miscellaneous.
A. Equal Employment and Nondiscrimination. Throughout the term
of this Franchise, Franchisee will fully comply with all equal
employment and nondiscrimination provisions and requirements of
federal, state, and local laws, and in particular, FCC rules and
regulations relating thereto.
B. Local Employment Efforts. Franchisee will use reasonable efforts
to utilize qualified local contractors, including minority business
enterprises and woman business enterprises, whenever the Franchisee
employs contractors to perform work under this Franchise.
C. Descriptive Headings. The headings and titles of the sections and
subsections of this Franchise are for reference purposes only and do not
affect the meaning or interpretation of the text herein.
D. Force Majeure. Franchisee shall not be required to perform any
covenant or obligation in this Franchise, or be liable in damages to the
. City, so long as the performance or non-performance of the covenant or
obligation is delayed, caused or prevented by an act of God or force
majeure. An "act of God" or "force majeure" is defined for purposes of
this Franchise as strikes, lockouts, sit-downs, material or labor
restrictions by any governmental authority, unusual transportation
delays, riots, floods, washouts, explosions, earthquakes, fire, storms,
weather (including inclement weather which prevents construction),
acts of the public enemy, wars, terrorism, insurrections, and/or any
other cause not reasonably within the control of Franchisee.
E. Costs and Attorneys' Fees. If any action or suit arises in
connection with this Franchise, the substantially prevailing party will
be entitled to recover all of its costs and attorneys' fees, as well as costs
and attorneys' fees on appeal, in addition to such other relief as the
court may deem proper.
F. No Joint Venture. Nothing herein will 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.
isCity of East Wenatchee
Ordinance 2013-11
Page 36 of 40
G. Actions of the City or Franchisee. In performing their respective
obligations under this Franchise, the City and Franchisee will act in a
reasonable, expeditious, and timely manner. Whenever this Franchise
sets forth a time for any act to be performed by Franchisee, such time
shall be deemed to be of the essence, and any failure of Franchisee to
perform within the allotted time may be considered a material breach of
this Franchise, and sufficient grounds for the City to invoke any
relevant remedy.
H. Counterparts. This Franchise may be executed in one or more
counterparts, and each originally executed duplicate counterpart of this
Franchise shall be deemed to possess the full force and effect of the
original.
I. Entire Agreement. This Franchise represents the entire
understanding and agreement between the parties with respect to the
subject matter and supersedes all prior oral and written negotiations
between the parties.
J. Modification. The parties may alter, amend or modify the terms
and conditions of this Franchise upon written agreement of both parties
to such alteration, amendment or modification.
10 K. Non -exclusivity. This Franchise does not confer any exclusive
right, privilege, or authority to enter, occupy or use public ways for
delivery of telecommunications services or any other purposes. This
Franchise is granted upon the express condition that it will not in any
manner prevent the City from granting other or further franchises in,
on, across, over, along, under or through any public way.
L. Rights Granted. This Franchise does not convey any right, title or
interest in public ways, but shall be deemed only as authorization to
enter, occupy, or use public ways for the limited purposes and terms
stated in this Franchise. Further, this Franchise shall not be construed
as any warranty of title.
M. Contractors and Subcontractors. Franchisee's contractors and
subcontractors must be licensed and bonded in accordance with the
City's ordinances, rules, and regulations. Work by contractors and
subcontractors is subject to the same restrictions, limitations and
conditions as if the work were performed by Franchisee.
Section 35. Publication. The City Clerk is authorized and directed
to publish a summary hereof.
City of East Wenatchee
Ordinance 2013-11
Page 37 of 40
• Section 36. Effective Date. This ordinance shall be in full force and
effect five days from and after its passage, approval and publication as
required by law, but if, and only if, the Franchisee has endorsed this
ordinance and accepted its terms and conditions within 30 days of its
passage.
Section 37. Repeal. The City Council repeals Ordinance 2012-09. Zayo
agrees that the terms of the Franchise Agreement set forth in
Ordinance 2012-09 are void, and all facilities installed by Zayo under
Ordinance 2012-09 shall be governed by this Ordinance as of the
Effective Date
PASSED by the City Council of the City of East Wenatchee, at a regular
meeting on the day of , 2012.
City of East Wenatchee
0 By Mayor Steven C. Lacy
ATTEST:
Dana Barnard
City Clerk
APPROVED AS TO FORM:
Devin Poulson
City Attorney
Filed with the City Clerk:
Passed by the City Council:
• City of East Wenatchee
Ordinance 2013-11
Page 38 of 40
• Published:
Effective Date:
•
ACCEPTANCE:
Zayo Group, LLC
I' 0
Printed Name: Gregg Strumberger
Title: General Counsel
City of East Wenatchee
Ordinance 2013-11
Page 39 of 40
• Summary of Ordinance No. 2013-11
0
Of the City of East Wenatchee, Washington
On the day of , 2013, the City Council of the
City of East Wenatchee, Washington approved Ordinance No. 2013- 11,
the main point of which may be summarized by its title as follows:
AN ORDINANCE OF THE CITY OF EAST WENATCHEE granting a
non-exclusive Franchise to Zayo Group, LLC to construct, install,
operate, maintain, repair, or remove fiber optic cables within the public
ways of the City of East Wenatchee.
Upon request, the City will mail a full text of this Ordinance.
Dated this day of )2013.
CITY CLERK, DANA BARNARD
City of East Wenatchee
Ordinance 2013-11
Page 40 of 40
0
11
COUNCIL AGENDA BILL #
PRESENTER:
POSITION:
CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
13-11-02 AGENDA ITEM # 4
Devin Poulson
City Attorney
AGENDA DATE: November 12, 2013
DEPARTMENT: Legal Department
TITLE: An Ordinance of the City of East Wenatchee allowing dog licenses to read
"Wenatchee Valley Animal Control" by amending Section 6.04.040 of the East
Wenatchee Municipal Code.
BACKGROUND/ The proposed amendment changes the law in two ways. First, it allows the
HISTORY: Humane Society to change the name on the Identification tag from East
Wenatchee to Animal Control, so that it can use one sequential series of
numbers for all jurisdictions (i.e. 1-20,000). This will eliminate double
numbers in their system, and it will allow their licensing software to function
more efficiently. The tags will still have animal controls contact information
on them and the Humane Society will still be able to tell what dogs belong in
the city limits of East Wenatchee, and how many licenses have been sold in
East Wenatchee.
Second, it eliminates the language that says licenses are available on
December 1. A license is good for one year, so owners renew their licenses at
all times of the year. Thus, the language in the Code needs to be updated to
reflect actual practice.
Because the redlined version is hard to read, here is how the final law would
read:
6.04.040 Animal licenses generally.
The City requires the following animal licenses: a dog license, a pet
kennel license, and a dangerous animal license. A license is not transferable.
An owner of a dog which is four months of age or older must obtain a valid
license. An owner must apply for a license on a form approved by the
Director. An application must be accompanied by the license fee and, if the
animal is altered, by proof of alteration. A license is issued in the name of the
owner and is numbered serially. Each issued license is accompanied by an
identification tag inscribed with "Wenatchee Valley Animal Control," a number
corresponding to the license, and the license's expiration date. A license
expires one year after it is issued. Following a hearing set forth in EWMC
6.04.140, the Director may establish the license fee for a dangerous animal
license. The fee for a dangerous animal license, however, may not exceed
$200.00.
Page 1 of 2
•
•
0
EXHIBITS:
RECOMMENDED Elevate to second reading and approve the Ordinance.
ACTION:
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
$ N/A $ N/A $ N/A
ACTION TAKEN: rVIV r"`
Motion Made By: J p hn S 0n
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: 110 Failed:
Second By:
Councilmember Raab "
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Page 2 of 2
City of East Wenatchee, Washington
Ordinance No. 2013-12
An Ordinance of the City of East Wenatchee allowing dog---f ----- Formatted: Jus
licenses to read "Wenatchee Valley Animal Control" by
amending Section 6.04.040 of the East Wenatchee Municipal
Code.
Una Ordenanza de la Ciudad de East Wenatchee
permitiendo licencias para perros para leer "Wenatchee
Valley Animal Control" mediante la modificacion de la
Seccion 6.04.040 del Codigo Municipal de Wenatchee.
1. Alternate format.
1.1. Para leer este documento en otro formato (espanol,
Braille, leer en voz alta, etc.), pongase en contacto con
el vendedor de la ciudad al alternatformat@east-
wenatchee.com, al (509) 884-9515 o al 711 (TTY).
1.2. To read this document in an alternate format
(Spanish, Braille, read aloud, etc.), please contact the
City Clerk at alternateformat@east-wenatchee.com, at
(509) 884-9515, or at 711 (TTY).
2. Authority. RCW 35A.11.020 and RCW 35A.12.190
authorize the City Council to adopt ordinances of all kinds
to regulate its municipal affairs and appropriate to the
good government of the City.
THE CITY COUNCIL OF THE CITY OF EAST
WENATCHEE DO ORDAIN AS FOLLOWS:
3. Amendment. The City Council amends Section 6.04.040 Deleted: are r
of the East Wenatchee Municipal Code to read as follows: Deleted: g
Deleted: s
6.04.040 Animal licenses generally. Moved (Inserdi
. Deleted: s
The City requires the following animal licensed a dog ; ,";; ;,%
license a et kennel license, and a dangerous animal Deleted: are
—p _ - -- - --- -- -------
Deleted: The
--------
license, _icense is __ ot_transferable. n Qwner of a — _ •__-__
....... - - � - -- - - -- - ---�-------- Deleted: s
which is four months of age or older must obtain a valid
• Deleted: ny
City of East Wenatchee
Ordinance 2013-12
Page 1 of 4
license. ,4n owner must apply for a license_ on a form
.
approved b the Director, An lication mustbe
pp Ypp
--------
accompanied by the license fee, and, if the animal is
�`'
altered, by �roof_of alteration, �cense,_i_ssued the
__in
name of the owner and is ,lumbered serially._ Each_issued ',
------------------ - - - - --------------
`,
license is accompanied by anzl identification tag inscribed
; N;:;•
with `,Wenatchee Valley Animal Control," a number
-------------------
corresponding to the license., and the license's expiration
- •,• -
date.,A license expires one year after it is issued
Following a hearing set forth in EWMC 6.04.140, the
Director may establish the license fee for a dangerous
---------------------------------
animal license, The fee for a dangerous animal license,
however, may not exceed $200.00
'''''' '
-------------------
4. Severability. If a court of competent jurisdiction declares
any provision in this Ordinance to be contrary to law,
such declaration shall not affect the validity of the other
provisions of this Ordinance.
5. Publication. The City Council directs the City Clerk to
publish a summary of this Ordinance. The summary
shall consist of the title of this Ordinance.
6. Effective Date. This Ordinance becomes effective five
days after the date its summary is published.
Passed by the City Council of East Wenatchee, at a regular
meeting thereof on this day of , 2013.
The City of East Wenatchee,
Washington
By
,,Tim Detering , Mayor Pro Tempore Deleted: Stever
• City of East Wenatchee
Ordinance 2013-12
Page 2 of 4
• Attest:
0
Dana Barnard, City Clerk
Approved as to form only:
Devin Poulson, City Attorney
Filed with the City Clerk:
Passed by the City Council:
------------------------
Published:
Effective Date:
City of East Wenatchee
Ordinance 2013-12
Page 3 of 4
Deleted: .
• Summary of Ordinance No. 2013-12
Of the City of East Wenatchee, Washington
0
On the day of , 2013,
the City Council of the City of East Wenatchee, Washington
approved Ordinance No. 2013-12, the main point of which
may be summarized by its title as follows:
An Ordinance of the City of East Wenatchee allowing dog
licenses to read "Wenatchee Valley Animal Control" by
amending Section 6.04.040 of the East Wenatchee Municipal
Code.
Una Ordenanza de la Ciudad de East Wenatchee
permitiendo licencias para perros para leer "Wenatchee
Valley Animal Control" mediante la modificacion de la
Seccion 6.04.040 del Codigo Municipal de Wenatchee.
Upon request, the City will mail a full text of this Ordinance.
Dated this day of , 2013. Deleted:
Dana Barnard, City Clerk
is City of East Wenatchee
Ordinance 2013-12
Page 4 of 4
CITY OF EAST WENATCHEE
L-,,
•
L-1
COUNCIL AGENDA BILL #
PRESENTER:
POSITION:
CITY COUNCIL AGENDA BILL
13-11-03
Tim Detering
Mayor Pro Tempore
AGENDA ITEM #
AGENDA DATE:
DEPARTMENT:
5
November 12, 2013
Mayor
TITLE: Resolution No. 2013-20
A Resolution of the City of East Wenatchee, Washington
authorizing the Mayor to execute an Agreement For Public
Defender Services.
BACKGROUND/ Currently, the City pays its public defenders $96,000 per year. The proposed
HISTORY: two-year contract gives the public defender a 2.5% increase in compensation,
for a total of $98,400 per year. Under the proposed contract, the City also
pays the public defenders $500/year to offset their expenses in serving
subpoenas on witnesses.
EXHIBITS: Resolution No. 2013-20
RECOMMENDED Motion to pass the resolution.
ACTION:
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
$ 98,900 $ 98,900 $ Yes.
ACTION TAKEN:
Motion Made By: V_dfr\har+
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: 110 Failed:
Second By: ,Johh son
Councilmember Raab
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Page l of 1
0 City of East Wenatchee, Washington
Resolution No. 2013-20
A Resolution of the City of East Wenatchee, Washington
authorizing the Mayor to execute an Agreement For Public
Defender Services.
1. Alternate format.
1.1. Para leer este documento en otro formato (espanol, Braille,
leer en voz alta, etc.), pongase en contacto con el vendedor de la
ciudad al alternateformat@east-wenatchee.com, al (509) 884-9515
o al 711 (TTY).
1.2. To read this document in an alternate format (Spanish,
Braille, read aloud, etc.), please contact the City Clerk at
alternateformat@east-wenatchee.com, at (509) 884-9515, or at
711 (TTY).
2. Authority.
2.1. RCW 35A.11.020 and RCW 35A.12.190 authorize the City
Council to organize and regulate its internal affairs and to define
the powers, functions and duties of its officers and employees.
THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE DO
RESOLVE AS FOLLOWS:
3. Authorization. The City Council authorizes the Mayor to execute
an Agreement for Public Defender Services that conforms to the
language set forth in Exhibit A.
4. Severability. If a court of competent jurisdiction declares any
provision in this resolution to be contrary to law, such declaration
shall not affect the validity of the other provisions of this Resolution.
5. Effective date. This Resolution becomes effective immediately.
City of East Wenatchee
Resolution 2013-20
Page 1 of 2
Passed by the City Council of East Wenatchee, at a regular meeting
thereof on this day of , 2013.
The City of East Wenatchee,
Washington
By
Steven C. Lacy, Mayor
Attest:
0 Dana Barnard, City Clerk
Approved as to form only:
Devin Poulson, City Attorney
Filed with the City Clerk:
Passed by the City Council:
Effective Date:
City of East Wenatchee
Resolution 2013-20
Page 2 of 2
Resolution 2013-20 Exhibit A
•
Agreement
For
Public Defender Services
•
0
Resolution 2013-20 Exhibit A
• 1. Parties. The parties to this Agreement are the City of East
Wenatchee ("City"), a municipal corporation, and Tony DiTommaso
and Nicholas A. Yedinak of Kottkamp and Yedinak, PLLC
("Attorneys").
2. Scope of Services. If the East Wenatchee Municipal Court
("Court") determines that a defendant qualifies for a court -
appointed attorney, the City will refer that to the Attorneys. The
Attorneys must provide legal representation for a defendant from
the time of appointment, through trial and sentencing, and
through the filing of a notice of appeal to the Superior Court. The
Attorneys may not solicit money from a court -appointed defendant
or his/her family during the course of the representation.
3. Applicant Screening. Using an independent screening process,
the Court" will determine a defendant's eligibility for appointed
counsel. The Court is responsible for handling the screening
process. Should the Attorneys determine a defendant is not
eligible for assigned counsel; the Attorneys will advise the Court
and move withdraw from the case.
4. Twenty -Four Hour Telephone Access. Before February 1,
2013, the Attorneys will provide the City Police Department with
the telephone number or numbers at which the Attorneys and
Associated Counsel can be reached for "critical stage" advice to
defendants during the course of a police investigation or arrest
twenty-four hours each day.
5. Associated Counsel. If licensed to practice law in the state of
Washington, an attorney associated with or employed by the
Attorneys have the authority to perform the services called for
herein. The Attorneys may employ associated counsel to assist at
the Attorneys' expense.
6. Proof of Professional Liability Insurance. During the term of
this Agreement and any extensions thereof, the Attorneys must
secure and maintain policies of comprehensive professional
liability insurance with an insurance company licensed to do
business in the State of Washington. Said policies must have
limits of not less than $300,000.00. The Attorneys must file
written proof of the insurance policies with the City.
0
Resolution 2013-20 Exhibit A
• 7.Indemnification.
7.1. The Attorneys agree to indemnify and hold the City, its
elected officials, officers, and employees harmless from any and
all claims, losses or liability, including Attorneys' fees,
whatsoever arising out of the Attorneys' performance of
obligations pursuant to this Agreement, including claims
arising by reason of accident, injury, or death caused to persons
or property of any kind occurring by the fault or neglect of the
Attorneys, their agents, associates, or employees, or occurring
without the fault or neglect of the City.
7.2. With respect to the performance of this Agreement and as to
claims against the City, its officers, agents, and employees, the
Attorneys expressly waive immunity under Title 51 of the
Revised Code of Washington, the Industrial Insurance Act, for
injuries to employees and agree that the obligation to
indemnify, defend, and hold harmless provided for in this
paragraph extends to any claim brought by or on behalf of any
employee of the Attorneys. This waiver is mutually negotiated
by the parties. This paragraph does not apply to any damage
resulting from the sole negligence of the City, its agents, or
10 employees. This obligation to indemnify, defend, and hold
harmless is valid and enforceable only to the extent of the
negligence of the Attorneys, their officers, agents, and
employees.
8. Compensation. The City will pay each Attorney for services
rendered, under this Agreement, the sum of $4,100.00 per month,
for a total of $98,400.00 per year for case assignments. This
amount includes the filing of an appeal from Municipal Court to
Superior Court. The City will make payment within 30 days of
receipt of the Attorneys' voucher.
9. Caseloads. If the Municipal Court assigns DiTommaso more than
400 cases per year, he is entitled to additional compensation. For
each case accepted above the caseload limit of 400 cases per year,
the City will compensate DiTommaso an additional $120 per case.
Likewise, if the Municipal Court assigns Yedinak more than 400
cases per year, he is entitled to additional compensation. For each
case accepted above the caseload limit of 400 cases per year, the
City will compensate Yedinak an additional $120 per case.
•
Resolution 2013-20 Exhibit A
• 10. Service of Process Costs. In addition to other compensation,
the City will pay Attorneys $500 ($250 to DiTommaso and $250 to
Yedinak) each year to help Attorneys offset the costs they may
incur for service -of -process fees. Payment is due on March 1 each
year.
11. Vouchers. On a standard voucher form, Attorneys must
provide the City with monthly statistics for all cases assigned. The
statistics must include: (1) name of client; (2) case number; (3)
charge; (4) disposition (plea, bench or jury trial); (5) whether an
appeal was filed; and (6) attorney hours spent on case. Attorneys
must submit the voucher to the City by the 15th of each month.
Attorneys must also submit the voucher to the Office of the
Administrator of the Courts by the 15th of each month.
12. Administrative Costs. Attorneys affirmatively represent that
the compensation provided by the City will allow them to pay for
their administrative costs. These costs include, but are not limited
to: travel, telephones, law library, electronic research, financial
accounting, a case management system, computers, software, office
space, office supplies, training, meeting the reporting requirements
• imposed by the New Standards for Indigent Defense, and other
costs incurred in the day-to-day management of this Agreement.
13. Certification Form. Attorneys must file a Certification of
Appointed Counsel of Compliance with Standards Required by CrR
3.1, CrRLJ 3.1, and JuCR 3.1 with the East Wenatchee Municipal
Court on a quarterly basis.
14. Discovery Provided. The City will provide to the Attorneys at
no cost to the Attorneys or a defendant one copy of all discoverable
material concerning each assigned case. The Attorneys agree that
the City may provide these materials electronically. Such material
will include, when relevant, a copy of the abstract of the
defendant's driving record.
15. Criminal History Record Information. As allowed by RCW
10.97.060(5), for each assigned case assigned, the City will provide
a defendant's criminal history record information to the Attorneys.
The criminal history record may contain non -conviction data. The
City and the Attorneys believe that this information will help the
City and the Attorneys provide high quality service in the
Resolution 2013-20 Exhibit A
• administration of criminal justice. Attorneys agree to limit their
use of the criminal history record information for the sole purpose
of representing a defendant in an assigned case. Attorneys further
agree that they will not disseminate the criminal history record
information to any third parties and agree to insure the
confidentiality and security of the information consistent with
state law and any applicable federal statutes and regulations.
16. Attorneys Unavailability. If the Attorneys are unavailable
due to illness, vacation, or other events beyond the Attorneys'
reasonable control, the Attorneys will supply the City with a list of
Attorneys, in the Wenatchee/East Wenatchee area who are willing
to serve as appointed counsel until such time as the Attorneys are
once again available. It is the Attorneys' responsibility to
coordinate with any Attorneys on such list to ensure their
availability, especially for twenty-four hour access as provided by
paragraph three herein, during the Attorneys' absence or periods
of unavailability.
17. Municipal Code. The East Wenatchee Municipal Code is
located online at the following URL address:
http://www.codepublishing.com/wa/eastwenatchee. Also, the City
provides links to the East Wenatchee Municipal Code trough its
website at http://east-wenatchee.com. The City will provide the
Attorneys with any relevant amendments adopted by the City
during the term of this Agreement.
18. No Assignment of Agreement. Except as provided herein, no
party may assign the duties in this Agreement to a third party.
19. Attorneys' Conflict. If the representation of a defendant
hereunder raises a conflict of interest such that the Attorneys
cannot represent a defendant, the Attorney must refer him or her
back to the Court for appointment of another attorney, who will be
paid by the City.
20. Standards for Public Defense Services. Attorneys must
comply with the Standards for Public Defense Services, as adopted
by the City Council for the City in Resolution No. 2012-22, a copy
of said resolution is attached as Exhibit "A" and is incorporated
herein as if fully set forth herein. Before January 10 of each year,
0
Resolution 2013-20 Exhibit A
• the Attorneys must submit an affidavit to the City Treasurer
stating that Attorneys are in compliance with such standards.
21. Specific Duties of Attorneys.
21.1. Attorneys must use their best efforts to provide proper legal
representation and advice in the best interest of the person at
all stages of court proceedings for which he/she is appointed.
Attorneys must perform all normal and appropriate duties of
legal counsel in such capacity.
21.2. Attorneys must maintain an office and telephone number for
the purpose of receiving notice of appointments, for
consultations with appointed persons, and for carrying out the
duties of Attorneys hereunder, and must keep the Court and
City notified of any changes of office or telephone number. The
Attorneys must provide the City Police Department with a
twenty-four hour telephone number, where defendants can
reach the Attorneys or their designee as provided in paragraph
three above.
21.3. Attorneys must use their best efforts to make arrangements
• for prompt consultation with appointed persons and must meet
with the appointed person as soon as practicable in order to
provide legal representations and to assist the City in efficient
court and docket administration.
21.4. Attorneys must complete all plea bargaining and all
paperwork needed for trial or court appearances forty-eight
hours prior to the time that each case is set for trial or hearing.
21.5. Attorneys must provide an interpreter where required for
their office consultations or for witness interviews.
22. Term of This Agreement. The initial term of this Agreement
is from 12:01 a.m. on January 1, 2014 to 11:59 p.m. on December
31, 2015. Unless a party gives written notice of intent not to renew
at least 60 days before the initial term ends, this Agreement
automatically extends until 11:59 p.m. on December 31, 2016.
23. Termination.
•
Resolution 2013-20 Exhibit A
. 23.1. By the City. The City may terminate this Agreement
without the necessity of substantiating cause by providing
Attorneys with 30 days written notice.
23.2. By Attorneys. Attorneys may terminate this Agreement if
the City fails to perform its obligations as described in this
Agreement, and if such failure has not been corrected to the
reasonable satisfaction of the Attorneys in a timely manner or
the City has not made reasonable efforts to correct such failure,
after 30 days written notice of such breach has been provided to
the City.
23.3. Cases. The Attorneys must complete all cases assigned prior
to the date of termination of this Agreement. The Attorneys
agree to make reasonable efforts to fulfill this obligation.
24. Expert Witness Fees. The Attorneys may make an ex parte
request for expert witness fees. If the court authorizes the expense,
the Attorneys may retain an expert of their choosing. Attorneys
must submit an itemized voucher to the court for reimbursement.
25. Entire Agreement. This Agreement contains the entire
agreement between the parties and may not be enlarged, modified,
or altered except in writing, signed by the parties, and endorsed
hereon.
26. Savings Clause. Nothing in this Agreement requires the
commission of any act contrary to law. If there is a conflict between
a provision of this Agreement and a statute, law, public regulation,
or ordinance, the latter prevails. If such an event occurs, the
affected provision of this Agreement is only limited to the extent
necessary to bring it within legal requirements.
27. Notices. A notice is effective if personally served on the other
party or if mailed by registered or certified mail, return receipt
requested, to the following addresses:
Attorney Tony DiTommaso Attorney Nicholas A. Yedinak
Law Office of Tony DiTommaso, Kottkamp & Yedinak, PLLC
P.S. P O Box 1667
23 South Wenatchee Avenue, Wenatchee WA 98807
Suite 205
E
Resolution 2013-20 Exhibit A
•
C,
•
Wenatchee WA 98801
Nic Gerde, City Treasurer
City of East Wenatchee
271 9th St NE
East Wenatchee WA 98802
28. Attorney's Fees and Costs. If a party brings a legal action to
enforce this Agreement, the substantially prevailing party is
entitled to recover reasonable attorney's fees and other costs
incurred in that action.
29. Governing Law. The laws of the State of Washington govern
this Agreement. The venue for any action arising from this
Agreement is Douglas County Superior Court.
PUBLIC DEFENDER
Tony DiTommaso
Date
CITY OF EAST WENATCHEE
Steven C. Lacy, Mayor
Date
PUBLIC DEFENDER
Nicholas A. Yedinak
Date
Resolution 2013-20 Exhibit A
•
ATTEST:
Dana Barnard, City Clerk
•
•
This page intentionally left blank
9
ResolutM910 MNI ibit A
Exhibit A .
•
:7
•
Washington State Bar Association
Standards for Indigent Defense Services
[Approved by the Board of Governors June 3, 2011]
Agreement for Public Defender Services Exhibit A
Resolut"E i iNlMibit A
• STANDARD ONE: Compensation
Standard:
Public defense attorneys and staff should be compensated at a rate commensurate with
their training and experience. To attract and retain qualified personnel, compensation
and benefit levels should be comparable to those of attorneys and staff in prosecutorial
offices in the area.
For assigned counsel, reasonable compensation should be provided. Compensation
should reflect the time and labor required to be spent by the attorney and the degree of
professional experience demanded by the case. Assigned counsel should be
compensated for out-of-pocket expenses.
Contracts should provide for extraordinary compensation over and above the normal
contract terms for cases which require an extraordinary amount of time and preparation,
including, but not limited to, death penalty cases. Services which require extraordinary
fees shall be defined in the contract.
Attorneys who have a conflict of interest shall not have to compensate the new,
substituted attorney out of their own funds.
Flat fees, caps on compensation, and lump -sum contracts for trial attorneys are
improper in death penalty cases. Private practice attorneys appointed in death penalty
cases should be fully compensated for actual time and service performed at a
• reasonable hourly rate with no distinction between rates for services performed in court
and out of court. Periodic billing and payment should be available. The hourly rate
established for lead counsel in a particular case should be based on the circumstances
of the case and the attorney being appointed, including the following factors: the
anticipated time and labor required in the case, the complexity of the case, the skill and
experience required to provide adequate legal representation, the attorney's overhead
expenses, and the exclusion of other work by the attorney during the case. Under no
circumstances should the hourly rate for lead counsel, whether private or public
defender, appointed in a death penalty case be less than $125 per hour (in 2006
dollars).
•
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-2.4 and 5-3.1.
American Bar Association, Guidelines for the Appointment and Performance in Death Penalty Cases,
1988, Standard 10-1.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standards 13.7 and 13.11.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-4.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal
Defense Contracts, 1984, Standard III-10 and III-11.
Seattle -King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation
of Defender Agencies, 1982, Guideline No. 6.
Agreement for Public Defender Services Exhibit A
•
Resolu&> MM,MlR� ibit A
Exhibit A
STANDARD TWO: Duties and Responsibilities of Counsel
Standard:
The legal representation plan shall require that defense services be provided to all clients in
a professional, skilled manner consistent with minimum standards set forth by the American
Bar Association, applicable state bar association standards, the Rules of Professional
Conduct, case law and applicable court rules defining the duties of counsel and the rights of
defendants in criminal cases. Counsel's primary and most fundamental responsibility is to
promote and protect the interests of the client.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1.1, 5-5.1 and 5-1.1.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standards 13.1.
National Legal Aid and Defender Association, Standards for Defender Services, Standard II-2.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense
Contracts, 1984, Guideline III-18.
American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases. Lnk
STANDARD THREE: Caseload Limits and Types of Cases
Standard:
1. The contract or other employment agreement or government budget shall specify
the types of cases for which representation shall be provided and the maximum
number of cases which each attorney shall be expected to handle.
2. The caseload of public defense attorneys shall allow each lawyer to give each client
the time and effort necessary to ensure effective representation. Neither defender
organizations, county offices, contract attorneys nor assigned counsel should accept
workloads that, by reason of their excessive size, interfere with the rendering of
quality representation. As used in this Standard, "quality representation" is intended
to describe the minimum level of attention, care and skill that Washington citizens
would expect of their state's criminal justice system.
3. General Considerations: Caseload limits reflect the maximum caseloads for fully
supported full-time defense attorneys for cases of average complexity and effort in
each case type specified. Caseload limits assume a reasonably even distribution of
cases throughout the year.
The increased complexity of practice in many areas will require lower caseload
ceilings. The maximum caseload limit should be adjusted downward when the mix
of case assignments is weighted toward more serious offenses or case types that
Agreement for Public Defender Services Exhibit A
ResolutAV° MWIlklR ibit A
Exhibit A
•
demand more investigation, legal research and writing, use of experts and/or social
workers or other expenditure of time and resources. In particular, felony caseloads
should be assessed by the workload required, and certain cases and types of cases
should be weighted accordingly.
If a defender or assigned counsel is carrying a mixed caseload including cases from
more than one category of cases, these standards should be applied proportionately
to determine a full caseload. In jurisdictions where assigned counsel or contract
attorneys also maintain private law practices, the caseload should be based on the
percentage of time the lawyer devotes to public defense.
Definition of case: A case is defined as the filing of a document with the court
naming a person as defendant or respondent, to which an attorney is appointed in
order to provide representation.
4. Caseload Limits: The caseload of a full-time public defense attorney or assigned
counsel shall not exceed the following:
150 Felonies per attorney per year; or
300 Misdemeanor cases per attorney per year; or in certain circumstances
described below the caseload may be adjusted to no more than 400 cases,
depending upon:
• The caseload distribution between simple misdemeanors and complex
misdemeanors; or
• Jurisdictional policies such as post -filing diversion and opportunity to
negotiate resolution of large number of cases as non -criminal violations;
• Other court administrative procedures that permit a defense lawyer to handle
more cases; or
250 Juvenile Offender cases per attorney per year; or
80 open Juvenile Dependency cases per attorney; or
250 Civil Commitment cases per attorney per year; or
1 Active Death Penalty trial court cases at a time plus a limited number of non death
penalty cases compatible with the time demand of the death penalty case and
consistent with the professional requirements of Standard 3.2 supra; or
36 Appeals to an appellate court hearing a case on the record and briefs per
attorney per year. (The 36 standard assumes experienced appellate attorneys
handling cases with transcripts of an average length of 350 pages. If attorneys do
not have significant appellate experience and/or the average transcript length is
greater than 350 pages, the caseload should be accordingly reduced.)
3
Agreement for Public Defender Services Exhibit A
•
Resolut#Mt *Pg-�WN?aibit A
Exhibit A
Related Standards
American Bar Association, Standards for Criminal Justice, 4-1.2, 5-4.3.
American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases. LLjaL
American Bar Association, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When
Excessive Caseloads Interfere With Competent and Diligent Representation, May 13, 2006, Formal Opinion 06-
441. Link
The American Council of Chief Defenders Statement on Caseloads and Workloads, (2007). Linu
American Bar Association Eight Guidelines of Public Defense Related to Excessive Caseloads. Link
National Advisory Commission on Criminal Standards and Goals, Task Force on Courts, 1973, Standard
13.12.
American Bar Association Disciplinary Rule 6-101.
American Bar Association Ten Principles of a Public Defense Delivery System. Link
ABA Standards of Practice for Lawyers who Represent Children in Abuse & Neglect Cases, (1996)
American Bar Association, Chicago, IL.
The American Council of Chief Defenders Ethical Opinion 03-01 (2003).
National Legal Aid and Defender Association, Standards for Defender Services, Standards IV -I.
National Legal Aid and Defender Association, Model Contract for Public Defense Services (2002). LLiLIL
NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001). tLjjjkj
City of Seattle Ordinance Number: 121501 (2004). LLinkj
Seattle -King County Bar Association Indigent Defense Services Task Force, Guideline Number 1.
Washington State Office of Public Defense, Parents Representation Program Standards Of
Representation (2009). LLipki
STANDARD FOUR: Responsibility for Expert Witnesses
Standard:
Reasonable compensation for expert witnesses necessary to preparation and presentation
of the defense case shall be provided. Expert witness fees should be maintained and
allocated from funds separate from those provided for defender services. Requests for
expert witness fees should be made through an ex parte motion. The defense should be
free to retain the expert of its choosing and in no cases should be forced to select experts
from a list pre -approved by either the court or the prosecution.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-1.4.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV 2d, 3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense
Contracts, 1983, Standard III-8d.
National Advisory Commission, Task Force on Courts, 1973, Standard 13.14.
4
Agreement for Public Defender Services Exhibit A
Resolutio jtnIRl Nibit A
it A
•
STANDARD FIVE: Administrative Costs
Standard:
Contracts for public defense services shall provide for or include administrative costs
associated with providing legal representation. These costs should include but are
not limited to travel, telephones, law library, including electronic legal research,
financial accounting, case management systems, computers and software, office
space and supplies, training, meeting the reporting requirements imposed by these
standards, and other costs necessarily incurred in the day-to-day management of
the contract.
2. Public defense attorneys shall have an office that accommodates confidential
meetings with clients and receipt of mail, and adequate telephone services to ensure
prompt response to client contact.
Related Standards:
American Bar Association, Standards for Criminal Justice, Providing Defense Services.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United
States, (1976), Guideline 3.4.
National Legal Aid and Defender Association, Standards for Defender Services, 1976 1-3, IV 2a-e, IV 5.
0 STANDARD SIX: Investigators
•
Standard:
1. Public defense attorneys shall use investigation services as appropriate
2. Public defender offices, assigned counsel, and private law firms holding public defense
contracts should employ investigators with investigation training and experience. A
minimum of one investigator should be employed for every four attorneys.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-4.1 and 5-1.14.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.14.
National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense
Contracts, 1984, Standard III-9.
Seattle -King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation
of Defender Agencies, 1982, Guideline Number 8.
Agreement for Public Defender Services Exhibit A
Reso1u&1rU 8-W ,tk11bit A
Exhibit A
STANDARD SEVEN: Support Services
Standard:
Public defense attorneys shall have adequate numbers of investigators, secretaries, word
processing staff, paralegals, social work staff, mental health professionals and other support
services, including computer system staff and network administrators. These professionals
are essential to ensure the effective performance of defense counsel during trial preparation,
in the preparation of dispositional plans, and at sentencing.
t . Legal Assistants - At least one full-time legal assistant should be employed for every
four attorneys. Fewer legal assistants may be necessary, however, if the agency or
attorney has access to word processing staff, or other additional staff performing
clerical work. Defenders should have a combination of technology and personnel
that will meet their needs.
2. Social Work Staff - Social work staff should be available to assist in developing
release, treatment, and dispositional alternatives.
3. Mental Health Professionals - Each agency or attorney should have access to mental
health professionals to perform mental health evaluations.
4. Investigation staff should be available as provided in Standard Six at a ratio of one
investigator for every four attorneys.
is
5. Each agency or attorney providing public defense services should have access to
adequate and competent interpreters to facilitate communication with non-English
speaking and hearing -impaired clients for attorneys, investigators, social workers,
and administrative staff.
is
Related Standards:
American Bar Association, Standards for Criminef Justice, 4-8.1 and 5-1A.
National Advisory Committee on Criminal Justice Standards and Goals, Task Force on Courts, Standard 13.14
National Legal Aid and Defender Assocwlt on, Standards for Defender Services, Standard IV-3.
National Legal Aid and Defender Association, Guidefirms for NegOeft, and ANardfrrg fndigent Defense
Contracts, 1984, Standard III-8.
Seattle-Kng County Bar Association Indigent Defense Services Task Force, Guidelines for Accredlation of
Defender Agencies, 1982, Guidelire Number 7.
STANDARD EIGHT: Reports of Attorney Activity
Standard:
The legal representation plan shall require that the defense attorney or office maintain a
case -reporting and management information system which Includes number and type of
cases, attorney hours and disposition. This information shall be provided regularly to the
rl
Agreement for Public Defender Services Exhibit A
Resolu&A44" iblN?iibit A
Exhibit A
• Contracting Authority and shall also be made available to the Office of the Administrator
of the Courts. Any such system shall be maintained independently from client files so as
to disclose no privileged information.
A standardized voucher form shall be used by assigned counsel attorneys seeking
payment upon completion of a case. For attorneys under contract, payment should be
made monthly, or at times agreed to by the parties, without regard to the number of
cases closed in the period.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-3.3 (b) xii, The Report to the Criminal Justice
Section Council from the Criminal Justice Standards Committee, 1989.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense
Contracts, 1984 Standard III-22.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United
States, 1976, Guideline 3.4, 4.1, and 5.2.
STANDARD NINE: Training
Standard:
The legal representation plan shall require that attorneys providing public defense services
participate in regular training programs on criminal defense law, including a minimum of
seven hours of continuing legal education annually in areas relating to their public defense
practice.
In offices of more than seven attorneys, an orientation and training program for new
attorneys and legal interns should be held to inform them of office procedure and policy. All
attorneys should be required to attend regular in-house training programs on developments
in criminal law, criminal procedure and the forensic sciences.
Attorneys in civil commitment and dependency practices should attend training programs in
these areas. Offices should also develop manuals to inform new attorneys of the rules and
procedures of the courts within their jurisdiction.
Every attorney providing counsel to indigent accused should have the opportunity to attend
courses that foster trial advocacy skills and to review professional publications and other
media.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-1.4.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.16.
National Legal Aid and Defender Association, Standards for Defender Services, Standard V.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense
Contracts, 1984, Standard III-17.
Agreement for Public Defender Services Exhibit A
Resolu&W�14MW R74ibit A
Exhibit A
• Seattle -King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of
Defender Agencies, 1982, Guideline Number3.
National Legal Aid and Defender Association, Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases, 1988, Standard 9.1.
•
is
STANDARD TEN: Supervision
Standard:
Each agency or firm providing public defense services should provide one full-time
supervisor for every ten staff lawyers or one half-time supervisor for every five lawyers.
Supervisors should be chosen from among those lawyers in the office qualified under these
guidelines to try Class A felonies. Supervisors should serve on a rotating basis, and except
when, supervising fewer than ten lawyers, should not carry caseloads.
Related Standards:
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.9.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense
Contract, 1984, Standard III-16.
Seattle -King County Bar Association Indigent Defense Services Task Force, Guidelines forAccreditation of
Defender Agencies, 1982, Guideline Number 4.
STANDARD ELEVEN: Monitoring and Evaluation of Attorneys
Standard:
The legal representation plan for provision of public defense services should establish a
procedure for systematic monitoring and evaluation of attorney performance based upon
publicized criteria. Supervision and evaluation efforts should include review of time and
caseload records, review and inspection of transcripts, in -court observations, and periodic
conferences.
Performance evaluations made by a supervising attorney should be supplemented by
comments from judges, prosecutors, other defense lawyers and clients. Attorneys should be
evaluated on their skill and effectiveness as criminal lawyers or as dependency or civil
commitment advocates.
Related Standards:
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense
Contracts, 1984, Standard III-16.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States,
1976, Recommendations 5.4 and 5.5.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.9.
Agreement for Public Defender Services Exhibit A
Resolut;M(�O*'M ibit A
Exhibit A
•
STANDARD TWELVE: Substitution of Counsel
Standard:
The attorney engaged by local government to provide public defense services should
not sub -contract with another firm or attorney to provide representation and should
remain directly involved in the provision of representation. If the contract is with a firm or
office, the contracting authority should request the names and experience levels of
those attorneys who will actually be providing the services, to ensure they meet
minimum qualifications. The employment agreement shall address the procedures for
continuing representation of clients upon the conclusion of the agreement. Alternate or
conflict counsel should be available for substitution in conflict situations at no cost to the
counsel declaring the conflict.
Related Standards:
American Bar Association, Standards for Criminal Justice, Standard 5-5.2.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.1.
National Legal Aid and Defender Association, Guidelines for !Negotiating and Awarding Indigent Defense
Contracts, 1984, Guideline III-23.
• STANDARD THIRTEEN: Limitations on Private Practice
0
Standard:
Private attorneys who provide public defense representation shall set limits on the amount of
privately retained work which can be accepted. These limits shall be based on the
percentage of a full-time caseload which the public defense cases represent.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1.2(d), 5-3.2.
American Bar Association, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When
Excessive Caseloads Interfere With Competent and Diligent Representation, May 13, 2006, Formal Opinion 06-
441. LLLqk
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.7.
National Legal Aid and Defender Association, Standards for Defender Services, Standard III-3 and IV-1.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense
Contracts, 1984, Guideline III-6.
Agreement for Public Defender Services Exhibit A
r�
0
Resolut*W��-Mtifdbit A
Exhibit A
STANDARD FOURTEEN: Qualifications of Attorneys
Standard:
1. In order to assure that indigent accused receive the effective assistance of
counsel to which they are constitutionally entitled, attorneys providing defense
services shall meet the following minimum professional qualifications:
A. Satisfy the minimum requirements for practicing law in Washington as determined by
the Washington Supreme Court; and
B. Be familiar with the statutes, court rules, constitutional provisions, and case law
relevant to their practice area; and
C. Be familiar with the Washington Rules of Professional Conduct; and
D. Be familiar with the Performance Guidelines for Criminal Defense Representation
approved by the Washington State Bar Association; and
E. Be familiar with the consequences of a conviction or adjudication, including possible
immigration consequences and the possibility of civil commitment proceedings
based on a criminal conviction; and
F. Be familiar with mental health issues and be able to identify the need to obtain expert
services; and
G. Complete seven hours of continuing legal education within each calendar year in
courses relating to their public defense practice.
2. Trial attorneys' qualifications according to severity or type of case':
A. Death Penalty Representation. Each attorney acting as lead counsel in a death
penalty case or an aggravated homicide case in which the decision to seek the
death penalty has not yet been made shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. At least five years criminal trial experience; and
iii. Have prior experience as lead counsel in no fewer than nine jury trials of
serious and complex cases which were tried to completion; and
iv. Have served as lead or co -counsel in at least one jury trial in which the death
penalty was sought; and
v. Have experience in preparation of mitigation packages in aggravated
homicide or persistent offender cases; and
1 Attorneys working toward qualification for a particular category of cases under this standard may
associate with lead counsel who is qualified under this standard for that category of cases.
10
Agreement for Public Defender Services Exhibit A
Resolut o2J*4-NWRibit A
Exhibit A
E
vi. Have completed at least one death penalty defense seminar within the
previous two years; and
vii. Meet the requirements of SPRC 2.2
The defense team in a death penalty case should include, at a minimum, the two
attorneys appointed pursuant to SPRC 2, a mitigation specialist and an investigator.
Psychiatrists, psychologists and other experts and support personnel should be added
as needed.
B. Adult Felony Cases - Class A. Each attorney representing a defendant accused of a
Class A felony as defined in RCW 9A.20.020 shall meet the following
requirements:
The minimum _requirements set forth in Section 1; and
Either:
a. has served two years as a prosecutor; or
b. has served two years as a public defender; or two years in a private
criminal practice, and
iii. Has been trial counsel alone or with other trial counsel and handled a
significant portion of the trial in three felony cases that have been submitted to
a jury.
C. Adult Felony Cases - Class B Violent Offense. Each attorney representing a
defendant accused of a Class B violent offense as defined in RCW 9A.20.020 shall
meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Either:
a. has served one year as prosecutor; or
b. has served one year as public defender; or one year in a private criminal
practice; and
2SPRC 2 APPOINTMENT OF COUNSEL
At least two lawyers shall be appointed for the trial and also for the direct appeal. The hial court shall retain responsibilityfor
appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal. Notwithstanding RAP 15.2(l) and (h), the
Supreme Court will determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements ofproficiency and experience, and who have demonstrated that they are learned in the
law of capital punishment by virtue of training or experience, and thus are qualified for appointment in: death penalty trials and for
appeals will be recruited and maintained by a panel created by the Supreme Court. All counsel for trial and appeal in list have
demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. Both counsel at trial
nrrhst hm,e five years' experience hi t7e practice of crinnirnal law be familiar rvitlz and experienced hh llre tntilizationh of expert wihiesses
and evidence, and not be presently serving as appointed counsel in another active trial level death penalty case. One counsel must be,
and both may be, qualified for appointment in capital trials on the list, unless circumstances erist such that it is in the defendant's
interest to appoint otherwise qualified counsel learned in the law of capital punishment by virtue of training or experience. The trial
court shall inakefhndings offact if good cause is found for not appointing list counsel.
At least one counsel on appeal must hcwe dnree years' experience in the field of criminal appellate law and be leashed in the law of
capital punishment by virtue of training or experience. hn appointing counsel on appeal, the Supreme Court will consider the list, but
will have thefinal discretion in the appoinhnent of cohmsel. LLjjjkl
11
Agreement for Public Defender Services Exhibit A
ResolulgamU t3-W ERLibit A
Exhibit A
• iii. Has been trial counsel alone or with other counsel and handled a
significant portion of the trial in two Class C felony cases that have been
submitted to a jury.
D. Adult Sex Offense Cases. Each attomey representing a client in an adult sex
offense case shall meet the following requirements:
i. The minimum requirements set forth in Section 1 and Section 2(C); and
ii. Been counsel alone of record in an adult or juvenile sex offense case or
shall be supervised by or consult with an attorney who has experience
representing juveniles or adults in sex offense cases.
E. Adult Felony Cases - All other Class B Felonies Class C Felonies Probation or
Parole Revocation. Each attorney representing a defendant accused of a Class B
felony not defined in Section 2(C) or (D) above or a Class C felony, as defined in
RCW 9A.20.020, or involved in a probation or parole revocation hearing shall meet
the following requirements:
i. The minimum requirements set forth in Section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal
practice; and
iii. Has been trial counsel alone or with other trial counsel and handled a
significant portion of the trial in two criminal cases that have been submitted to
a jury; and
iv. Each attorney shall be accompanied at his or her first felony trial by a
supervisor if available.
F. Persistent Offender (Life Without Possibility of Release) Representation
Each attorney acting as lead counsel in a "two -strikes" or "three stakes" case in
which a conviction will result in a mandatory sentence of life in prison without
parole shall meet the following requirements:
i. The minimum requirements set forth in Section 1; 3and
ii. Have at least:
a. four years criminal trial experience; and
b. one year experience as a felony defense attorney; and
C. experience as lead counsel in at least one Class A felony trial; and
d. experience as counsel in cases involving each of the following:
3 RCW 10.101.060 (1)(a)(iii) provides that counties receiving funding from the state Office of Public Defense under
that statute must require "attorneys who handle the most serious cases to Peet specified qualifications as set ford: in the
Washington state bar association endorsed standards for public defense services or participate in at least one case consultation
per case with office of public defense resource attorneys who are so qualified. The most serious cases include all cases of m urder-
in flee first or second degree, persistent offender cases, and class Afelonies. "
12
Agreement for Public Defender Services Exhibit A
ResolutfoRc 'Wff-48'RAI.bit A
Exhibit A
• 1. Mental health issues; and
2. Sexual offenses, if the current offense or a prior conviction that is one
of the predicate cases resulting in the possibility of life in prison
without parole is a sex offense; and
3. Expert witnesses; and
•
4. One year of appellate experience or demonstrated legal writing
ability.
G. Juvenile Cases - Class A. Each attorney representing a juvenile accused of a
Class A felony shall meet the following requirements:
i. The minimum requirements set forth in Section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; one year in a private
criminal practice; and
iii. Has been trial counsel alone of record in five Class B and C felony trials;
and
iv. Each attorney shall be accompanied at his or her first juvenile trial by a
supervisor, if available.
H. Juvenile Cases - Classes B and C. Each attorney representing a juvenile accused
of a Class B or C felony shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private
criminal practice, and
iii. has been trial counsel alone in five misdemeanor cases brought to a final
resolution; and
iv. Each attorney shall be accompanied at his or her first juvenile trial by a
supervisor if available.
I. Juvenile Sex Offense Cases. Each attorney representing a client in a juvenile sex
offense case shall meet the following requirements:
i. The minimum requirements set forth in Section 1 and Section 2(H); and
ii. Been counsel alone of record in an adult or juvenile sex offense case or
shall be supervised by or consult with an attorney who has experience
representing juveniles or adults in sex offense cases.
J. Juvenile Status Offenses Cases. Each attorney representing a client in a "Becca"
matter shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
13
Agreement for Public Defender Services Exhibit A
ResolutRmo2M3c3r20lF,2]Iib1t A
Exhibit A
ii. Either:
a. have represented clients in at least two similar cases under the
supervision of a more experienced attorney or completed at least three
hours of CLE training specific to "status offense" cases; or
b. have participated in at least one consultation per case with a more
experienced attorney who is qualified under this section.
K. Misdemeanor Cases. Each attorney representing a defendant involved in a matter
concerning a simple misdemeanor or gross misdemeanor or condition of
confinement, shall meet the requirements as outlined in Section 1.
L. Dependency Cases. Each attorney representing a client in a dependency matter
shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
ii. Attorneys handling termination hearings shall have six months
dependency experience or have significant experience in handling complex
litigation.
iii. Attorneys in dependency matters should be familiar with expert
services and treatment resources for substance abuse.
iv. Attorneys representing children in dependency matters should have
knowledge, training, experience, and ability in communicating effectively with
children, or have participated in at least one consultation per case either with a
state Office of Public Defense resource attorney or other attorney qualified
under this section.
M. Civil Commitment Cases. Each attorney representing a respondent shall meet the
following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Each staff attorney shall be accompanied at his or her first 90 or 180 day
commitment hearing by a supervisor; and
iii. Shall not represent a respondent in a 90 or 180 day commitment hearing
unless he or she has either:
a. served one year as a prosecutor, or
b. served one year as a public defender, or one year in a private civil
commitment practice, and
C. been trial counsel in five civil commitment initial hearings; and
iv. Shall not represent a respondent in a jury trial unless he or she has
conducted a felony jury trial as lead counsel; or been co -counsel with a more
experienced attorney in a 90 or 180 day commitment hearing.
N. Sex Offender "Predator' Commitment Cases. Generally, there should be two
counsel on each sex offender commitment case. The lead counsel shall meet the
following requirements:
The minimum requirements set forth in Section 1; and
14
Agreement for Public Defender Services Exhibit A
Res olut c�4i(31201AX ibit A
Exhibit A
• ii. Have at least:
•
a. Three years criminal trial experience; and
b. One year experience as a felony defense attorney or one year
experience as a criminal appeals attorney; and
C. Experience as lead counsel in at least one felony trial; and
d. Experience as counsel in cases involving each of the following:
1. Mental health issues; and
2. Sexual offenses; and
3. Expert witnesses; and
e. Familiarity with the Civil Rules; and
f. One year of appellate experience or demonstrated legal writing
ability.
Other counsel working on a sex offender commitment cases should meet the
Minimum Requirements in Section 1 and have either one year experience as a
public defender or significant experience in the preparation of criminal cases,
including legal research and writing and training in trial advocacy.
O. Contempt of Court Cases. Each attorney representing a respondent shall meet
the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Each attorney shall be accompanied at his or her first three contempt of
court hearings by a supervisor or more experienced attorney, or participate in
at least one consultation per case with a state Office of Public Defense
resource attorney or other attorney qualified in this area of practice.
P. Specialty Courts. Each attorney representing a client in a specialty court (e.g.,
mental health court, drug diversion court, homelessness court) shall meet the
following requirements:
i. The minimum requirements set forth in Section 1; and
ii. The requirements set forth above for representation in the type of practice
involved in the specialty court (e.g., felony, misdemeanor, juvenile); and
iii. Be familiar with mental health and substance abuse issues and treatment
alternatives.
3. Appellate Representation.
Each attorney who is counsel for a case on appeal to the Washington Supreme Court or
to the Washington Court of Appeals shall meet the following requirements:
A. The minimum requirements as outlined in Section 1; and
B. Either:
i. has filed a brief with the Washington Supreme Court or any Washington
Court of Appeals in at least one criminal case within the past two years; or
15
Agreement for Public Defender Services Exhibit A
Resolut 2*1)9-2WZR2iibit A
Exhibit A
• ii. has equivalent ap
pellate ppellate experience, including filing appellate briefs in
other jurisdictions, at least one year as an appellate court or federal court clerk,
extensive trial level briefing or other comparable work.
C. Attorneys with primary responsibility for handling a death penalty appeal shall
have at least five years' criminal experience, preferably including at least one
homicide trial and at least six appeals from felony convictions, and meet the
requirements of SPRC 2.
•
RAU Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone
for a case on appeal to the Superior Court from a Court of Limited Jurisdiction should
meet the minimum requirements as outlined in Section 1, and have had significant
training or experience in either criminal appeals, criminal motions practice, extensive trial
level briefing, clerking for an appellate judge, or assisting a more experienced attorney in
preparing and arguing an RALJ appeal.
4. Legal Interns.
A, Legal interns must meet the requirements set out in APR 9.
B. Legal interns shall receive training pursuant to APR 9 and in offices of more than
seven attorneys, an orientation and training program for new attorneys and legal
interns should be held.
Related Standards:
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, Standard
13.15.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Public Defense
Contracts, 1984, Standard III-7.
National Legal Aid and Defender Association, Standards for the Appointment and Performance of Counsel in
Death Penalty Cases, 1987, Standard 5.1.
STANDARD FIFTEEN: Disposition of Client Complaints
Standard:
Each agency or firm or individual contract attorney providing public defense services shall
have a method to respond promptly to client complaints. Complaints should first be directed
to the attorney, firm or agency which provided representation. If the client feels that he or
she has not received an adequate response, the contracting authority or public defense
administrator should designate a person or agency to evaluate the legitimacy of complaints
and to follow up meritorious ones. The complaining client should be informed as to the
disposition of his or her complaint within one week.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-5.1 and 4-5.2.
16
Agreement for Public Defender Services Exhibit A
Resolu&AO24"' _N'kAibit A
Exhibit A
•
•
STANDARD SIXTEEN: Cause for Termination of Defender Services and Removal of
Attorney
Standard:
Contracts for indigent defense services shall include the grounds for termination of the
contract by the parties. Termination of a provider's contract should only be for good
cause. Termination for good cause shall include the failure of the attorney to render
adequate representation to clients; the willful disregard of the rights and best interests of
the client; and the willful disregard of the standards herein addressed.
Removal by the court of counsel from representation normally should not occur over the
objection of the attorney and the client.
Related Standards:
American Bar Association, Standards for Criminal Justice, Standard 5-1.3, 5-5.3.
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense
Contracts, 1984, Guideline III-5.
National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United
States, 1976, Recommendations 2.12 and 2.14.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973,
Standard 13.8.
STANDARD SEVENTEEN: Non -Discrimination
Standard:
Neither the Contracting Authority, in its selection of an attorney, firm or agency to
provide public defense representation, nor the attorneys selected, in their hiring
practices or in their representation of clients, shall discriminate on the grounds of race,
color, religion, national origin, age, marital status, gender, sexual orientation or
disability. Both the contracting authority and the contractor shall comply with all federal,
state, and local non-discrimination requirements.
Related Standards:
American Bar Association, Standards for Criminal Justice, Providing Defense Services, Standard 5-3.1.
National Legal Aid and Defender Association, Standards for Defender Services, 1976, Standard III-8.
STANDARD EIGHTEEN: Guidelines for Awarding Defense Contracts
Standard:
The county or city should award contracts for public defense services only after
determining that the attorney or firm chosen can meet accepted professional standards.
17
Agreement for Public Defender Services Exhibit A
•
•
ResolutiiewU iH-MIE21ibit A
Exhibit A
Under no circumstances should a contract be awarded on the basis of cost alone.
Attorneys or firms bidding for contracts must demonstrate their ability to meet these
standards.
Contracts should only be awarded to a) attorneys who have at least one year's criminal
trial experience in the jurisdiction covered by the contract (i.e., City and District Courts,
Superior Court or Juvenile Court), or b) to a firm where at least one attorney has one
year's trial experience.
City attorneys, county prosecutors, and law enforcement officers should not select the
attorneys who will provide indigent defense services.
Related Standards:
National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal
Defense Contracts, 1984, Standard IV-3.
King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of
Defender Agencies, 1982, Statement of Purpose.
18
Agreement for Public Defender Services Exhibit A
•
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•
•
ResolutPmcWk8i-201ExMibit A
Exhibit B
� THE SUPREME COURT OF WASHINGTON
N THE MATTER OF THE STANDARDS FOR ORDER
INDIGENT DEFENSE AND CERTIFICATION OF )
COMPLIANCE ) NO.25700-A- UD $
The Office of Public Defense having recommended amendments to the Standards for
Indigent Defense and Certification of Compliance, and the Court having considered the
amendments submitted thereto, -and having determined that the proposed amendments will aid in
the prompt and orderly administration of justice;
Now, therefore, it is hereby
• ORDERED;
(a) That the standards and certificate as attached hereto are adopted.
(b) That the Standards for Indigent Defense, including the new Preamble,
amendments to Standard 3.1, Standard 3.5, and Standard 5.2 will be published in the
Washington Reports and become effective on October 1, 2012. The new subsection (e) of the
Certification Form will be published in the Washington Reports and become effective on
September 1, 2013.
DATED at Olympia, Washington this I day of September, 201
Q
�~ rn _
J J F
D
n =)
r�'i tU ��
:4�
k U C-5
Agreement for Public Defender Services Exhibit A
40
•
Resolu4gopjb�-Y,Myaibit A
Exhibit B
Page 2
IN THE MATTER OF.THE STANDARDS FOR INDIGENT DEFENSE AND CERTIFICATION
OF COMPLIANCE
Agreement for Public Defender Services Exhibit A
Reso1uti=c2f#1&i201MAiibit A
Exhibit B
STANDARDS FOR INDIGENT DEFENSE
[New]
Preamble
The Washington Supreme Court adopts the following Standards to address -certain basic
elements of public defense practice related to the effective assistance of counsel The
Certification of Appointed Counsel of Compliance with Standards Required by CrR 3 1/CrRLJ
3.1/JuCR 9.2 references specific "Applicable Standards." The Court adopts additional Standards
beyond those required for certification as guidance for public defense attorneys in addressing
issues identified in State v, A. N.J., 168 Wash.2d 91 (2010)including the suitability of contracts
that public defense attorneys mgy renegotiate and sign To the extent that certain Standards maX
refer to or be interpreted as referring to local governments the Court recognizes the authority of
its Rules is limited to attorneys and the courts. Local courts and clerks are encouraged to
develop protocols for procedures for receiving and retaining Certifications
Standard 1, Compensation
[Reserved.]
Standard 2. Duties and Responsibilities of Counsel
[Reserved.]
Standard 3. Caseload Limits and Types of Cases
Standard 3.1. The contract or other employment agreement or govemment bu shall
specify the types of. cases for which representation shall be provided and the maximum number
of cases which each attorney shall be expected to handle.
Standard 3.1 adopted effective October 1, 2012
Standard 3.2. The caseload of public defense attorneys shall allow each lawyer to give each
client the time and effort necessary to ensure effective representation. Neither defender
organizations, county offices, contract attorneys, nor assigned counsel should accept workloads
that, by reason of their excessive size, interfere with the rendering of quality representation. As
used in this Standard, "quality representation" is intended to describe the minimum level of
attention, care, and skill that Washington citizens would expect of their state's criminal justice
system.
Standard 3.2 adopted effective October 1, 2012
Standard 3, 3. General Considerations. Caseload limits reflect the maximum caseloads for
fully supported full-time defense attorneys for cases of average complexity and effort in each
case type specified. Caseload limits assume a reasonably even distribution of cases throughout
the year.
Agreement for Public Defender Services Exhibit A
Resolutq%&b�- fM Y4��ibit A
Exhibit B
The increased complexity of practice in many areas will require lower caseload limits. The
maximum caseload limit should be adjusted downward when the mix of case assignments is
weighted toward offenses or case types that demand more investigation, legal research and
writing, use of experts, use of social workers, or other expenditures of time and resources.
Attorney caseloads should be assessed by the workload required, and cases and types of cases
should be weighted accordingly.
If a defender or assigned counsel is carrying a nixed caseload including cases from more
than one category of cases, these standards should be applied proportionately to determine a full
caseload. In jurisdictions where assigned counsel or contract attorneys also maintain private law
practices, the caseload should be based on the percentage of time the lawyer devotes to public
defense.
The experience of a particular attorney is a factor in the composition of cases in the
attorney's caseload.
The following types of cases fall within the intended scope of the caseload limits for criminal
and juvenile offender cases in Standard 3.4 and must be taken into account when assessing an
attorney's numerical caseload: partial case representations, sentence violations, specialty or
therapeutic courts, transfers, extraditions, representation of material witnesses, petitions for
conditional release or final discharge, and other matters that do not involve a new criminal
charge.
Definition of case. A case is defined as the filing of a document with the court naming a
person as defendant or respondent, to which an attorney is appointed in order to provide
representation.. In courts of limited jurisdiction multiple citations from the same incident can be
counted as one case.
Standard 3.3 adopted effective October 1, 2012
Standard 3.4. Caseload Limits. Effective October 1, 2013,
Standard 3.5, Case Counting. The leea ent entity
een#a,e4ing with, or- appeifftiag publie defense attemeys should adept a -ad publish %-At4e
pelioies and presedures are net adopted and published, it is presumed t4at attemeys are no
ease Wei ghti Attorneys may not engage in a case wen Ming system unless
pursuant to written policies and procedures that have been adopted and published by the local
government entity responsible for cmploying, contracting with, or appointing them. A numerieal
ease -weighting system must:
A. recognize the greater or lesser workload required for cases compared to an average case
based on a method that adequately assesses and documents the workload involved;
B. be consistent with these Standards, professional performance guidelines, and the Rules of
-Professional Conduct;
C. not institutionalize systems or practices that fail to allow adequate attorney time .for
quality representatioin;
D. be periodically reviewed and updated to reflect current workloads; and
E. be filed with the State of Washington Office of Public Defense.
Cases should be assessed by the workload required. Cases and types of cases should be
weighted accordingly. Cases which are complex, serious, or contribute more significantly to
Agreement for Public Defender Services Exhibit A
ResolutFW(W144201EYMbit A
Exhibit B
attorney workload than average cases should be weighted upward. In addition, a case weighting
• system should consider factors that might justify a case weight of less than one case.
Notwithstanding any case weighting system, resolutions of cases by pleas of guilty to
criminal charges on a first appearance or arraignment docket are presumed to be rare occurrences
requiring careful evaluation of the evidence and the law, as well as thorough communication
with clients, and must be counted as one case.
Standard 3.5 adopted effective October 1, 2012
Standard 3.6. Case Weighting. The following are some examples of situations where case
weighting might result in representations being weighted as more or less than one case. The
listing of specific examples is not intended to suggest or imply that representations .in such
situations should or must be weighted at more or less than one case, only that they may be, if
established by an appropriately adopted case weighting system.
A. Case Weighting Upward. Serious offenses or complex cases that demand mare -than -
average investigation, legal research, writing, use of experts, use of social workers, and/or
expenditures of time and resources should be weighted upward and counted as more than one
case.
B. Case Weighting Downward. Listed below are some examples of situations where case
weighting might justify representations being weighted less than one case. However, care must
be taken because many such representations routinely involve significant work and effort. and
should be weighted at a frill case or more.
i. Cases that result in partial representations of clients, including client failures to appear
and recommencement of proceedings, preliminary appointments in cases in which no charges are
• filed, appearances of retained counsel, withdrawals or transfers for any reason, or limited
appearances for a specific purpose (not including representations of multiple cases on routine
dockets).
ii. Cases in the criminal or offender case type that do not involve filing of new criminal
charges, including sentence violations, extraditions, representations of material witnesses, and
other matters or representations of clients that do not involve new criminal charges.
Noncomplex sentence violations should be weighted as at least 1/3 of a case.
iii. Cases in specialty or therapeutic courts if the attorney is not responsible for defending the
client against the underlying charges before or after the client's participation in the specialty or
therapeutic court. However, case weighting must recognize that numerous hearings and
extended monitoring of client cases in such courts significantly contribute to attorney workload
and in many instances such cases may warrant allocation of full case weight or more.
iv. Cases on a criminal or offender first appearance or arraignment docket where the attorney
is designated, appointed; or contracted to represent groups of clients on that docket without an
expectation of further or continuing representation and which are not resolved at that time
(except by dismissal). In such circumstances, consideration should be given to adjusting the
caseload limits, appropriately, recognizing that case weighting. must reflect that attorney
workload includes the time needed for appropriate client contact and preparation as well as $e
appearance time spenton such dockets.
v. Representation of a person in a court of limited jurisdiction on a charge which, as a
matter of regular practice in the court where the case is pending, can be and is resolved at an
early stage of the proceeding by a diversion, reduction to an infraction, stipulation on
Agreement for Public Defender Seryices Exhibit A
Reso1 Na ?Ay 2�ibit A
Exhibit B
• continuance, or other alternative noncriminal disposition that does not involve a finding of guilt.
Such cases should be weighted as at least 1/3 of a case.
Standard 3.6 adopted effective October 1, 2012
Related Standards
ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE FUNCTION
Defense Function std. 4-1.2 (3d ed. 1993)
ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES std. 5-4.3 (3d ed.
1992)
AM. BAR ASS'N, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE
COUNSEL IN DEATH PENALTY CASES (rev. ed. 2003)
ABA Comm, on Ethics & Prof 1 Responsibility, Formal Op. 06-441(2006) (Ethical
Obligations of Lawyers Who Represent Indigent Criminal Defendants .When Excessive
Caseloads Interfere With Competent and Diligent Representation)
Ain. Council of Chief Defenders, Statement on Caseloads and Workloads (Aug. 24, 2007)
ABA House of Delegates, Eight Guidelines of Public Defense Related. to Excessive
Caseloads (Aug. 2009)
TASK FORCE ON COURTS, NAT'L ADVISORY COMM'N ON CRIMINAL STANDARDS & GOALS,
COURTS std. 13.12 (1973)
MODEL CODE OF PROF'L RESPONSIBILITY DR 6-101.
• ABA House of Delegates, The Ten Principles of a Public Defense Delivery System (Feb.
2002)
ABA House of Delegates, Standards of Practice for Lawyers Who Represent Children in
Abuse and Neglect Cases (Feb. 1996)
Nat'l Legal Aid & Defender Ass'n, Am. Council of Chief Defenders, Ethical Opinion 03-01
(2003).
Nat'l Legal Aid & Defender Ass'n, Standards for Defender Services std. IV-1 (1976)
Nat'l Legal Aid & Defender Ass'n, Model Contract for Public Defense Services (2000)
N4t'1 Ass'n of Counsel for Children, NA CC Recommendatio nsfor Representation of
'Children in Abuse and Neglect Cases (2001)
Seattle Ordinance 121501 (June 14, 2004)
Indigent Defense Servs. Task Force, Seattle -King County Bar Ass'n, Guidelines for
Accreditation of Defender Agencies Guideline 1 (1982)
Wash. State Office of Pub. Defense, Parents Representation Program Standards of
Representation (2009)
BUREAU OF JUDICIAL ASSISTANCE, U.S. DEP'T OF JUSTICE, INDIGENT DEFENSE SERIES No. 4,
KEEPING DEFENDER WORKLOADS MANAGEABLE (2001) (NCJ 185632)
StandardY4. Responsibility of Expert Witnesses
Agreement for Public Defender Services Exhibit A
•
•
•
ResolutAwoMc3r20l&vhibit A
Exhibit B
[Reserved.]
Standard 5. Administrative Costs
Standard 5.1. [Reserved.]
Standard 5.2.
A. Contracts for public defense services &hal4 should provide for or include administrative
costs associated with providing legal representation. These costs should include but are not
limited to travel; telephones; law library, including electronic legal research; fniancial
accounting; case management systems; computers and software; office space and supplies;
training; meeting the reporting requirements imposed by these standards; and other costs
necessarily incurred in the day-to-day management of the contract.
B. Public defense attorneys shall have (1) access to an office that accommodates
confidential meetings with clients and (2) a postal address, and adequate telephone services to
ensure prompt response to client contact.
Standard 5.2 adopted effective October 1, 2012
Standard 6. Investigators
Standard 6.1. Public defense attorneys shall use investigation services as appropriate.
Standard 6.1 adopted effective October 1, 2012
[Reserved.]
Standards 7-12
Standard 13. Limitations on Private Practice
Private attorneys who provide public defense representation shall set limits on the amount of
privately retained work which can be accepted. These limits shall be based on the percentage of
a full-time caseload which the public. defense cases represent.
Standard 13 adopted effective October 1, 2012.
Standard 14. Qualifications of Attorneys
Standard 14.1. In order to assure that indigent accused receive the effective assistance of
counsel to which they are constitutionally entitled, attorneys providing defense services shall
meet the following minimum professional qualifications:
A. Satisfy the minimum requirements for practicing law in Washington as determined by the
Washington Supreme Court; and
B. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant
to their practice area; and
C. Be familiar with the Washington Rules of Professional Conduct; and
Agreement for Public Defender Services Exhibit A
Resoluggyo�lqib�-N Y�iibI t A
Exhibit B
. D. Be familiar with the Performar_ce Guidelines for Criminal Defense Representation
approved by the Washington State Bar Association; and
E. Be familiar with the consequences of a conviction or adjudication, including possible
immigration consequences and the possibility of civil conunitment proceedings based on a
criminal conviction; and
F. Be familiar with mental health issues and be able to identify the need to obtain expert
services; and
G. Complete seven hours of continuing legal education within each calendar year in courses
relating to their public defense practice.
Standard 14.1 adopted effective October 1, 2012
Standard 14.2. Attorneys' qualifications according to severity or type of cases:
A. Death Penalty Representation. Each attorney acting as lead counsel in a criminal case in
which the death penalty has been or may be decreed and which the decision to seek the death
penalty has not yet been made shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. At least five years' criminal trial experience; and
iii. Have prior experience as lead counsel in no fewer than nine jury trials of serious and
complex cases which were tried to completion; and
iv. Have served as lead or co -counsel in at least one aggravated homicide case; and
v. Have experience in preparation of mitigation packages in aggravated homicide or
persistent offender cases; and
vi, Have completed at least one death penalty defense seminar within the previous two years;
and.
vii. Meet the requirements of SPRC 2.2
Attorneys working toward qualification for a particular category of cases under this standard may associate with lead counsel
who is qualified under this standard for that category of cases.
SPRC 2
APPOINTMENT OF COUNSEL
At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain responsibility
for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal, Notwithstanding RAP 15.2(f) and
(h), the Supreme Court will determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements ofproficiency and experience, and who have demonstrated that they are
learned in the law of capital punishment by virtue of training or experience, and thus are qualified for appointment in death
penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court. All counsel for trial and
appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case.
Both counsel at trial must have five years' experience in the practice of eritnival law (and) be familiar with and experienced in the
utilization of expert witnesses and evidence, and not be presently serving as appointed counsel in another active trial level death
penalty case, One counsel must be, and both may be, qualified for appointment in capital trials on the list, unless circumstances
exist such that it is in the defendant's interest to appoint otherwise qualified counsel learned in the law of capital punishment by
virtue of training or experience, The trial court shall make findings of fact if good cause is found for not appointing list counsel.
At least one counsel on appeal must have three years' experience in the field of criminal appellate law and be learned in the
law of capital punishment by virtue of training or experience. In appointing counsel on appeal, the Supreme Court will consider
the list, but will have the final discretion in the appoinbnenl of counsel,
Agreement for Public Defender Services Exhibit A
•
Resoludwaftric&201Uhibit A
Exhibit B-
The defense team in a death penalty case should include, at a minimum, the two attorneys
appointed pursuant to SPRC 2, a mitigation specialist, and an investigator. Psychiatrists,
psychologists, and other experts and support personnel should be added as needed.
B. Adult Felony Cases —Class A. Each attorney representing a defendant accused of a Class
A felony as defined in RCW 9A.20.020 shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Either:
a. has served two years as a prosecutor; or
b. has served two years as a public defender; or two years in a private criminal practice; and
iii. Has been trial counsel alone or with other counsel and handled a significant portion of the
trial in three felony cases that have been submitted to a jury.
C. Adult Felony Cases —Class B Violent Offense.' Each attorney representing a defendant
accused of a Class B violent offense as defined in RCW .9A.20.020 shall meet the following
requirements.
i. The minimum requirements set forth in Section 1; and
ii. Either;
a.. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private erinninal practice; and
iii. Has been trial counsel alone or with other counsel and handled a significant portion of the
trial in two Class C felony cases that have been submitted to a jury.
D. Adult Sex Offense Cases. Each attorney representing a client in an adult sex offense case
shall meet the following requirements:
i. The minimum requirements set forth in Section 1 and Section 2(C); and
ii. Has been counsel alone of record in an adult or juvenile sex offense case or shall be
supervised by or consult with an attorney who has experience representing juveniles or adults in
sex offense cases.
E. Adult Felony Cases —All Other Class B Felonies, Class C Felonies, Probation or Parole
Revocation. Each attorney representing a defendant accused of a Class B felony not defined in
Section 2(C) or (D) above or a Class C felony, as defined hi RCW 9A.20.020, or involved in a
probation or parole revocation heating shall meet the following requirements:
i. The minimum requirements set forth in Section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal practice; and
iii. Has been trial counsel alone or with other trial counsel and handled a significant portion
of the trial in two criminal cases that have been submitted to a jury; and
iv. Each attorney shall be accompanied at his or her first felony trial by a supervisor if
available.
Agreement for Public Defender Services Exhibit A
Resoluk'&�� -Ap f ibit A
Exhibit B
• iv: Shall not represent a respondent in a jury trial unless he or she has conducted a felony
jury trial as lead counsel; or been co -counsel with a more experienced attorney in a 90 or 180 day
commitment hearing.
N. Sex Offender "Predator" Commitment Cases. Generally, there should be two counsel on
each sex offender commitment case. The lead counsel shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Have at least:
a. Three years' criminal trial experience; and
b. One year's experience as a felony defense attorney or one year's experience as a criminal
appeals attorney; and
c. Experience as lead counsel in at least one felony trial; and
d. Experience as counsel in cases involving each of the following:
1. Mental health issues; and
2. Sexual offenses; and
3. Expert witnesses; and
e. Familiarity with the Civil Rules; and
f. One year of appellate experience or demonstrated legal writing ability.
Other counsel working on a sex offender commitment case should meet the minimum
requirements in Section 1 and have either one year's experience as a public defender or
. significant experience in the preparation of criminal cases, including legal research and writing
and training in trial advocacy.
O. Contempt of Court Cases. Each attorney representing a respondent shall meet the
following requirements:
i. The minimum requirements set forth in Section 1; and
ii, Each attorney shall be accompanied at his or her first three contempt of court hearings by
a supervisor or more experienced attorney, or participate in at least one consultation per case
with a state Office of Public Defense resource attorney or other attorney qualified in this area of
practice.
P. Specialty Courts. Each attorney representing a client in a specialty court (e.g., mental
health court, drug diversion court, homelessness court) shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. The requirements set forth above for representation in the type of practice involved in the
specialty court (e.g., felony, misdemeanor, juvenile); and
iii. Be familiar with mental health and substance abuse issues and treatment alternatives.
Standard 14.2 adopted effective October 1, 2012
Standard 14.3. Appellate Representation. Each attorney who is counsel for a case on appeal
to the Washington Supreme Court or to the Washington Court of Appeals shall meet the
following requirements:
A. The minimum requirements as outlined in Section 1; and
Agreement for Public Defender Services Exhibit A
Resolut ({QtJ(;6N1&kbit A
Exhibit B
• B. Either:
i, has filed a brief with the Washington Supreme Court or any Washington Court of
Appeals in at least one criminal case within the past two years; or
ii. has equivalent appellate experience, including filing appellate briefs in other
jurisdictions, at least one year as an appellate court or federal court clerk, extensive trial level
briefing, or other comparable work.
C. Attorneys with primary responsibility for handling a death penalty appeal shall have at
least five years' criminal experience, preferably including at least one homicide trial and at least
six appeals from felony convictions, and meet the requirements of SPRC 2.
RALJ Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone for a
case on appeal to the Superior Court from a court of limited jurisdiction should meet the
minimum requirements as outlined in Section 1, and have had significant training or experience
in either criminal appeals, criminal motions practice, extensive trial level briefing, clerking for an
appellate judge, or assisting a more experienced attorney in preparing and arguing a RALJ
appeal.
Standard 14.3 adopted effective October 1, 2012
Standard 14.4. Legal Interns.
A. Legal interns must meet the requirements set out in APR 9,
B. Legal interns shall receive training'pursuant to APR 9, and in offices of more than seven
attorneys, an orientation and training program for new attorneys and legal interns should be held.
Standard 14.4 adopted effective October 1, 2012
[Reserved.]
Standards 15-18
Agreement for Public Defender Services Exhibit A
•
•
•
Resolut O�Qa-�My,j�ibit A
Exhibit B
CERTIFICATION OF COMPLIANCE
[New]
For criminal and juvenile offender cases, a signed Certification of Compliance with
Applicable Standards must be filed by an appointed attorney by separate written certification on
a quarterly basis in each court in which the attorney has been appointed as counsel.
The certification must be in substantially the following foam:
SEPARATE CERTIFICATION FORM
Court of Washington
for
State of Washington
Plaintiff
VS.
The undersigned attorney hereby certifies:
No.
CERTIFICATION OF APPOINTED COUNSEL OF
COMPLIANCE WITH STANDARDS REQUIRED
By CrR 3.1/CrRLJ 3.1/JuCR 9.2
1. Approximately % of my total practice tune is devoted to indigent defense cases.
2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys
appointed to represent indigent persons and that:
a. Basic Qualifications: I meet the minimunn basic professional qualifications in Standard
14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients,
and I have a postal address and adequate telephone services to ensure prompt response to client
contact, in compliance with Standard 5.2.
c. Investigators: I have investigators -available to me and will use investigation services as
appropriate, in compliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my
cases. [Effective September 1, 2013: I should not accept a greater number of cases (or a
proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of
time spent for indigent defense is less than full time, and taki ig into account the case counting and
weighting system applicable in my jurisdiction.]
e. Specific Qualifications: I meet the specific qualifications in Standard 14.2 Sections B-K
[Effective September 1, 2013.1
Agreement for Public Defender Services Exhibit A
•
Resolut}Mc&j(;64011�242ibit A
Exhibit B
Defendant's Lawyer, WSBA No. Date
Agreement for Public Defender Services Exhibit A
Resolut�(�i�-iibit A
Exhibit B
F. Persistent Offender (Life Without Possibility of Release) Representation. Each attorney
acting as lead counsel in a "two strikes" or "three strikes" case in which a conviction will result
in a mandatory sentence of life in prison without parole shall meet the following requirements:
i. The minimum requirements set forth in Section 1;3 and
ii. Have at least:
a. four years' criminal trial experience; and
b. one year's experience as a felony defense attorney; and
c. experience as lead counsel in at least one Class A felony trial; and
d. experience as counsel in cases involving each of the following:
1. Mental health issues; and
2. Sexual offenses, if the current offense or a prior conviction that is one of the predicate
cases resulting in the possibility of life in prison without parole is a sex offense; and
3. Expert witnesses; and
4. One year of appellate experience or demonstrated legal writing ability.
G. Juvenile Cases ---Class A. Each attorney, representing a juvenile accused of a Class A
felony shall meet the following requirements:
i. The minimum requirements set forth in Section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal practice; and
iii, Has been trial counsel alone of record in five Class B and C felony trials; and
iv. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor, if
available.
H. Juvenile Cases —Classes B and C. Each attorney representing a juvenile accused of a
Class B or C felony shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in aprivate criminal practice, end
iii. Has been trial counsel alone in five misdemeanor cases brought to a final resolution; and
iv. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor if
available.
3 RCW 10.101.000(1)(a)(iii) provides that counties receiving funding from the state Office of Public Defense under that statute
must require "attorneys who handle the most serious cases to meet specified qualifications as set forth in the Washington state bar
association endorsed standards for public defense services or participate in at least one case consultation per case with office of
public defense resource attorneys who are so qualified. The most serious cases include all cases of murder in the first or second
0 degree, persistent offender cases, and class A felonies."
Agreement for Public Defender Services Exhibit A
ResolulkewMA-2A Mhabit A
Exhibit B
I. Juvenile Sex Offense Cases. Eachattorney representing a client in a juvenile sex offense
case shall meet the following requirements:
L The minimum requirements set forth in Section 1 and Section 2(H); and
ii. Has been counsel alone of record in an adult or juvenile sex offense case or shall be
supervised by or consult with an attorney who has experience representing juveniles oradults in
sex offense cases.
J. Juvenile Status Offenses Cases. Each attorney representing a client in a "Becca" matter
shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
ii. Either:
a. have represented clients in at least two similar cases under the supervision of a more
experienced attorney or completed at least three hours of CLE training specific to "status
offense" cases; or
b. have participated in at least one consultation per case with a more experienced attorney
who is qualified under this section.
K. Misdemeanor Cases. Each attorney representing a defendant involved in a matter
concerning a simple misdemeanor or gross misdemeanor or condition of confinement, shall meet
the requirements as outlined in Section 1,
L. Dependency Cases. Each attorney representing a client in a dependency matter shall meet
the following requirements:
L The minimum requirements as outlined in Section 1; and
ii. Attorneys handling termination hearings shall have six months' dependency experience
or have significant experience in handling complex litigation.
iii. Attorneys in dependency matters should be familiar with expert services and treatment
resources for substance abuse.
iv. Attorneys representing children in dependency matters should have knowledge, training,
experience, and ability in communicating effectively with children, or have participated in at
least one consultation per case either with a state Office of Public Defense resource attorney or
other attorney qualified under this section.
M. Civil Commitment Cases. Each attorney representing a respondent shall meet the following
requirements:
i. The minimum requirements set forth in Section 1; and
ii. Each staff attorney shall be accompanied at his or her first 90 or 180 day commitment
hearing by a supervisor; and
iii. Shall not represent a respondent in a 90 or 180 day commitment hearing unless he or she
has either:
a. served one year as a prosecutor; or
b. served one year as a public defender; or one year in a private civil commitment practice,
and
c. been trial counsel in five civil commitment initial hearings; and
i
Agreement for Public Defender Services Exhibit A
•
This page intentionally left blank
•
•
•
•
COUNCIL AGENDA BILL #
PRESENTER:
POSITION:
CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
13-10-12
Randy Harrison
Police Chief
AGENDA ITEM #
AGENDA DATE:
DEPARTMENT:
0
November 12, 2013
Law Enforcement
TITLE:
Approval of a Lease Agreement with Xerox for a Copy Machine (W7845PT Tandem) for the Police
Department.
BACKGROUND/ HISTORY:
This will replace the copier on the leased machine due to expire in November 2013.
EXHIBITS:
Lease Agreement
RECOMMENDED ACTION:
Authorize the Mayor to sign the Lease Agreement for the Xerox Copy Machine.
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
$ 198.02 per mo. $ N/A $ N/A
$ 2376.24 annually
ACTION TAKEN:
Motion Made By: rn her
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: Failed:
Second By:ucn
Councilmember Raab
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Page 1 of 1
LL--Lease Agreement
Customer: EAST WENATCHEE, CITY OF
BillTo: EAST WENATCHEE
POLICE DEPT
271 9TH ST NE
EAST WENATCHEE, WA 98802-4438
Tax ID#:.
Negotiated Contract : 072635500
Solution
Product DescriItem
1. W7845PT (W7845PT TANDEM)
3-hole Punch(fin-Ix)
1 Line Fax
Office Finisher Lx
Convenience Stapler
Customer Ed
Analyst Services
Mon
Item Lease
Minimum Payment
1. W7845PT $198.02
Total $198.02
Authorized Signature
xerox
Install: EAST WENATCHEE
POLICE DEPT
271 9TH ST NE
EAST WENATCHEE, WA 98802-4438
p Jon
Agreement
Date
Lease Term:
60 months 11/11/2013
Purchase Option:
FMV
ChargesPrint
Plan Features
Meter Volume Band Per Print Rate
1: BLACK All Prints $0.0056
Consumable Supplies Included for all prints
2: COLOR All Prints $0.0506
Pricing Fixed for Term
Minimum Payments (Excluding Applicable Taxes)
Customer acknowledges receipt of the terms of this agreement
which consists of 3 pages including this face page.
Signer: J.R. Randy Harrison Phone: (509)884-9511
Signature: Date:
Thank You for your business!
This Agreement is proudly presented by Xerox and
Joel Rodriguez
TO
�j
(509)764-8560
A
f
For information on your Xerox Account, go to
�E
Em.xerox conVAccountManagement
Lease
Agreement xe rox
Introductory Pricing
You are receiving special Introductory Pricing. Your Minimum Payment for Products identified in the Pricing Detail table below will be adjusted during the
Introductory Pricing period as set forth in the Pricing Detail table, and will be different from the Minimum Payment during the balance of this Agreement.
The Pricing Detail table illustrates how the Minimum Payment will be affected during the Introductory Pricing period.
Product
Total
1. W7845PT
1E
Month 1 Month 2 Month 3 Full Amount
$198.02 $198.02 $198.02 $198.02
$198.02 $198.02 $198.02 $198.02
Introductory Pricing Detail for Each Applicable Item
1-3 I $198.02 11: BLACK All Prints I $0.0016
2: COLOR All Prints $0.0243
Full Service Maintenance Included for all prints
Consumable Supplies charge only
L�7_Lease Agreement
•Terms and
INTRODUCTION:
1. NEGOTIATED CONTRACT. The Products are subject solely to the terms in the
Negotiated Contract identified on the face of this Agreement, and, for any option you
have selected that is not addressed in the Negotiated Contract, the then -current
standard Xerox terms for such option.
PRICING PLAN/OFFERING SELECTED:
2. FIXED PRICING. If "Pricing Fixed for Term" is identified in Maintenance Plan
Features, the maintenance component of the Minimum Payment and Print Charges will
not increase during the initial Term of this Agreement.
GENERAL TERMS & CONDITIONS:
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using data that is automatically collected by Xerox or transmitted to or from Xerox by
the Equipment connected to Customer's network ("Remote Data") via electronic
transmission to a secure off -site location ("Remote Data Access"). Remote Data
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remotely diagnose and modify Equipment to repair and correct malfunctions. Examples
of Remote Data include product registration, meter read, supply level, Equipment
xerox
configuration and settings, software version, and problem/fault code data. Remote Data
may be used by Xerox for billing, report generation, supplies replenishment, support
services, recommending additional products and services, and product
improvement/development purposes. Remote Data will be transmitted to and from
Customer in a secure manner specified by Xerox. Remote Data Access will not allow
Xerox to read, view or download the content of any Customer documents or other
information residing on or passing through the Equipment or Customer's information
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performed.
•
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COUNCIL AGENDA BILL #
PRESENTER:
POSITION:
CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
13-10-13 AGENDA ITEM # 7
Greg Pezoldt
City Engineer
AGENDA DATE:
DEPARTMENT:
TITLE:
Grant Road Storm Pipe Rehabilitation- RH2 Consultant Agreement Supplement
BACKGROUND/ HISTORY:
November 12, 2013
Public Works
The city previously acknowledged the need to rehabilitate the Storm Water Drainage Pipe on the lower
portion of Grant road. In the review of the pipe, it was determined that there was a large dent in the pipe
caused by unknown reasons. RH2 Engineers were contracted to perform engineering services in support of
repairing the dent in the pipe to adequately prepare for the pipe rehabilitation. Once the contractor was in
place to repair the dent, it was discovered that a second dent was also in need of repair. The discovery of
the second dent involved more on -site inspection and engineering consultation than was originally planned
for in the RH2 Consultant Agreement.
At the time the pipe was uncovered, inspectors determined that the pipe upstream of the first dent was not
deteriorated and would not need to be lined or rehabilitated. Since the repair scenario of a "Cured In Place"
liner can only be performed from manhole to manhole, it was determined that a new manhole structure
should be installed at the dent location. The new manhole would reduce the repair length of the pipe from
300 feet to less than 150 feet. This was rationalized because the cost of the new manhole would be more
than offset by the cost savings of the reduced CIPP repair.
This supplement will serve to cover the costs of that additional "Services During Construction" expenses
incurred upon the discovery of the second dent, the expenses with regard to the pipe rehabilitation design
and specifications, and "Services During Construction" of the rehabilitation.
Additionally, the contract approved and awarded to KLB Construction for the dent removal was canceled,
mutually agreed upon by all parties. The WSDOT accepted the financial responsibility for the dent removal.
The cost of the new manhole structure is the responsibility of the City, but falls within the spending authority
of the project as approved previously by the Council.
EXHIBITS:
Grant Road Storm Pipe Rehabilitation Contract Amendment No. 2
RECOMMENDED ACTION:
Approve RH2 Contract Amendment No. 2
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
$ 14,694 (Previous) $ 0 $ 35,835 Total
$ 21,141 (Additional)
Page 1 of 2
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ACTION TAKEN:
Motion Made By: 5
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: 110 Failed:
Second By: ►►aa
Councilmember Raab
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Page 2 of 2
Contract Amendment No. 2
General Services 2013-2014
Task Authorization No. 15.1501
Grant Road Storm Pipe Rehabilitation
RH2 Project No. 213.026
In accordance with our Professional Services Agreement for the General Services dated February 12, 2013,
this is an authorization to revise the project Scope of Work as described below. The work will be
performed and invoiced using the terms and conditions listed in the Original Agreement, plus previous
amendments and/or agreements.
Add the following items to the Scope of Work:
The City of East Wenatchee (City) has requested RH2 Engineering, Inc., (RH2) to assist with additional
services for the rehabilitation of the Grant Road storm drain pipe, including the following tasks.
Additional Services During Construction for Dent Removal Contract
• Provide additional coordination due to the discovery of the second dent in the Grant Road storm
drain pipe. Coordinate with the City and Washington State Department of Transportation
(WSDOT) to develop options for a solution, including the addition of a manhole to the project.
• Provide additional on -site inspection services for removing the second dent discovered during
construction, installing the manhole, and road restoration.
Design and Bidding Services for Cured -in -Place Pipe
• Review Cured -in -Place Pipe (CIPP) material alternatives for pipe lining. Discuss options with a
cured -in -place pipe contractor and the City. Provide a letter with a recommendation to the City.
• Review downstream piping video for decision on inclusion of CIPP lining on outlet section
through wall.
• Include downstream piping into plans (including Traffic Control Plans on State Highway).
• Prepare plans and specifications for a cured -in -place pipe contract. This Scope assumes that
one (1) section of pipe will be lined and inverts of the existing drywell will not be adjusted.
• Prepare front-end bid documents and reproduce bid sets. Send bid documents to up to three (3)
contractors on the City's small works roster.
• Answer bidder questions and attend a pre -bid walk-through with interested contractors.
Services During Construction for Cured -in -Place Pipe
Set up and attend pre -construction meeting.
Provide additional on -site inspection services for the selected method of lining the damaged
portion of the pipe.
Provide additional design services if the City chooses to change pipe grades at the drywell.
. Reference Exhibit B — Estimate of Time and Expense.
The engineering fee authorization will increase by $21,141 for a total authorization amount of $35,835.
11/04/13 3:11 P:NI J:\data\E\\'\213-026\15-Grant Road Storm Pipe Lining Proj\Contract\Task 15 Amend 2\Amend Igo. 2_TaskAutb_No 15_G=t Rd Storm Pipe Rebab.docx
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Please sign this authorization in the space provided below and mail or fax to RH2 Engineering, Inc., 300
Simon Street SE, Suite 5, East Wenatchee, WA 98802. FAX 509-886-2313.
RH2 Engineering, Inc.
Rand L a land - Director
DATE
Authoritiation to Proceed —
Cqy of East Wenatchee
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CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
COUNCIL AGENDA BILL # 13-11-04
PRESENTER: Brandon Mauseth
POSITION: Associate Engineer
AGENDA ITEM # 8
AGENDA DATE: November 12, 2013
DEPARTMENT: Public Works
TITLE:
Professional Service Agreement with PACE Engineering for design services for a Stormwater Low Impact
Development Retrofit Project.
BACKGROUND / HISTORY:
Summer of 2013, City Staff was notified by the Washington State Department of Ecology of an opportunity to receive
grant funding through the 2013-15 Biennial Municipal Stormwater Capacity Grant Program. This funding program
offers Cities and Counties an opportunity to receive $120,000.00 in funding specifically for planning and/or design
services to retrofit an existing City facility or roadway in order to bring that facility up to current NPDES and water
quality standards. The funding is specifically for design services to fully prepare plans, specifications and a
construction estimate for a "shelf ready" project, this grant provides no funding for construction of the facility.
City Staff anticipate a "call for projects" from the Department of Ecology for construction grant funding in 2014. The
ultimate goal for this design funding is to be prepared to make application for construction funding through the
Department of Ecology.
October 1, 2013, City Staff provided notice to the Department of Ecology that the City would accept the funding for
design services.
Proiect:
Valley Mall Parkway (VMP) Municipal Parking Lot and Mid -Block Crossing LID Retrofit Project.
City Staff will be working with PACE Engineering and the Department of Ecology to complete a "shelf ready" project to
reconstruct the Valley Mall Parkway Municipal Parking Lot with Stormwater flow control and water quality treatment
components. The project will design; stormwater infrastructure using Low Impact Development technology, add
landscaping amenities and lighting, reduce driveway accesses from 3 to 2 driveway approaches, provide new
vehicular circulation and parking layout within the parking lot, design retaining wall(s) on the east and south side of the
parking lot, accommodate bicycle parking and pedestrian circulation.
The City has also included improvements to the mid -block pedestrian crossing on Valley Mall Parkway. Elements to
be addressed in that design are; new crossing location, textured and contrasting walking service, bulb outs at the
sidewalk connection and a center refuge island for aesthetics and safety, landscaping, lighting and advanced warning
devices for motorists.
Because of a very tight timeframe and deadlines for deliverables required by the Department of Ecology, City Staff
utilized the City's 2013 Architect and Engineering Roster to evaluate, rank and score the most qualified engineering
firms who were eligible members. 13 firms were ranked and scored with PACE Engineering earning the top score.
Over the last two weeks, City Staff have been negotiating the proposed scope and fee and developing the
professional service agreement with the PACE Engineering Project Team.
Upon approval, PACE Engineering will commence with design services. The deadlines for deliverables to the
Department of Ecology and the City of East Wenatchee are as follows;
January 31, 2014 — Pre -Design Report (DOE Fo
30% plans and
Page 1 of 2
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01
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June 1, 2014 — 60% design review
August 1, 2014 - 90% design plans (final deadline to DOE), Plans, Specifications and Engineer's Estimate
October 15, 2014 - 100% Plans, Specifications and Engineer's Estimate (Full PS&E Package, shelf ready)
Because of these tight timeframes required by the Department of Ecology, PACE Engineering and City Staff
will immediately begin design work for this project. City Staff anticipate approximately $20,000.00 in design
services will be invoiced to the City prior to 2014. This project was not specifically included in the 2013 SWU
budget but the cost will be within the existing 2013 appropriation of the 2013 SWU Budget, a budget
amendment to cover that expense will be processed if necessary. The remaining budget, plus 10% for City
Staff administrative costs, is included in the 2014 Preliminary SWU Budget.
This project, as presented, is funded by the Washington State Department of Ecology. Cost associated with
this project is included in the 2014 preliminary SWU Budget. The total project expense including staff cost
for grant administration and project management is represented below.
Funding breakdown for the professional design expense and in-house staff expense
DOE Funds SWU Funds Total Project
2013 Design Engineering 20,000 2,000 22,000
2014 Design Engineering 100,772 10,000 110,772
Construction Contract 0
Total 120,772 12,000 132,772
EXHIBITS:
Professional Service Agreement between the City of East Wenatchee and PACE Engineers, Inc for
professional engineering services
RECOMMENDED ACTION:
Approve City staff's recommendation to select the firm of Pace Engineering for design engineering services
for the VMP Parking Lot and Mid -Block Pedestrian Crossing LID Retrofit Project; and to further authorize the
Mayor to execute an agreement not to exceed $120,772.00.
FINANCIAL DATA:
Expenditure Required
$1 20.772.00
ACTION TAKEN:
Motion Made By:
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmem er Barnhart
Passed: S Failed:
Amount Budgeted Appropriation Required
$120, 772.00 $120, 772
($20,000-201 3 appropriation,
$100,772 - 2014 SWU budget;
Second By: Ocottr
Councilmember Raab
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Page 2 of 2
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Professional Services Agreement
Between
The City of East Wenatchee
And
PACE Engineers, Inc.
For
Professional Engineering Services
Professional Services Agreement
Page 1 of 8
• 1. Parties. The Parties to this Professional Services Agreement ("Agreement") are
the City of East Wenatchee and PACE Engineers, Inc. ("PACE").
2. Duration of Agreement. This Agreement begins upon execution and ends on
December 31, 2014.
3. Either party may terminate this Agreement early. Upon written notice, the
City may terminate this Agreement with or without cause. If the City terminates
this Agreement without cause, it will pay PACE for work already completed on a
prorated basis to the date ordered to stop. Upon 30-days written notice, PACE
may terminate this Agreement with cause. The written notice must specify the
termination's effective date and it must specify the cause PACE is relying upon
to justify termination. In such event the City will pay PACE all amounts due for
all work previously authorized and performed prior to the date of termination.
3.1. If this Agreement is terminated, PACE agrees to cooperate reasonably with
any service provider thereafter retained by the City in making available
information developed as the result of work previously performed by PACE .
3.2. If neither party gives written termination, all relationships and obligations
created by this Agreement, will terminate at the conclusion of the
Agreement period set out in Paragraph 3.
• 4. PACE will provide professional engineering services for the City. PACE
will provide the services set forth in Exhibit A-1 for the City in a timely, reliable,
and cost-effective manner:
5. Total Compensation. The City will pay PACE up to $120,772.00 for
performing the services set forth in paragraph 4. This amount is the full
compensation for all work performed; for all services rendered; and for all labor,
materials, supplies, and equipment, and incidentals necessary to complete the
services set forth in paragraph 4.
6. Method of Payment. PACE must submit a monthly invoice for compensation.
The monthly invoice must contain a detailed description of the work performed
during the month, the number of hours spent performing such work, and any
reimbursable costs and expenses incurred in connection with such work.
7. Invoices. PACE must submit invoices to the following address: The City of East
Wenatchee, 271 Ninth St. N.E., East Wenatchee, WA 98802 Attention: Teresa
Allen.
8. Disputed work. If the City believes in good faith that some portion of work has
not been completed satisfactorily; the City may request that PACE correct the
work before the City pays for such work. In such event, the City must reasonably
explain to PACE its concern over the work and the remedy that the City expects
Professional Services Agreement
Page 2 of 8
• from PACE. The City may withhold from any payment otherwise due an amount
that the City in good faith is under dispute, or if the PACE does not provide a
sufficient remedy, the City may retain the amount equal to the cost to the City
for otherwise correcting or remedying the work not properly completed.
9. Affirmative Representations by PACE. PACE represents and warrants that:
9.1. It has the requisite training, skill and experience necessary to provide the
services listed in Paragraph 4.
9.2. It is appropriately accredited and licensed by all applicable agencies and
governmental entities.
9.3. It did not offer, nor did any City employee accept a gift, gratuity, loan, trip,
favor, special discount, work, or anything of economic value in conjunction
with the City business practices.
9.4. It will strictly adhere to the statutes and ordinances in contracting and
purchasing, including the City Ethics Code, RCW 42.23 (Code of Ethics for
Municipal Officers) and RCW 42.52 (Ethics in Public Service).
9.5. It does not have a business interest or close family relationship with any
• City officer or employee who was, is, or will be involved in the PACE
selection, negotiation, drafting, signing, administration or evaluation of the
PACE's performance.
10.The City will monitor and evaluate PACE's performance. Subject to
oversight by the City Engineer, PACE may control and direct the performance of
the services set forth in Paragraph 4. The City reserves the right to inspect,
review and approve the work done by PACE to assure that it has been completed
as specified, before payment. PACE must cooperate with and freely participate
in any monitoring or evaluation activities conducted by the City that are
pertinent to the intent of this Agreement.
11. PACE is an independent contractor. This Agreement creates an independent
contractor relationship between the parties. PACE and its employees or agents
performing under this Agreement are not employees or agents of the City. PACE
will not hold itself out pass or claim to be an officer or employee of the City, nor
will PACE make any claim of right, privilege or benefits which would accrue to
such officer or employee under law. The Parties recognize that PACE may or will
be performing professional services during the term of this Agreement for other
parties.
12.Ineligible Subcontractors. PACE may not subcontract any part of the work
covered by this Agreement or permit subcontracted work to be further
subcontracted without the City's prior written approval. The City will not
Professional Services Agreement
Page 3 of 8
• approve any subcontractor for work covered by this Agreement who is at the
time ineligible under the provisions of any applicable regulations issued by the
Secretary of Labor, U. S. Department of Labor or the Secretary of Housing and
Urban Development, to receive an award of such subcontract. Verifications of
Subcontractors need to be obtained by the PACE from www.eyls.gov, and
maintained in a file accessible by the Owner for audit purposes.
13.Taxes. PACE is responsible for paying all taxes related to payments made by
the City makes to the PACE, including federal income taxes, self employment
(social security and Medicaid) taxes and state business and occupation taxes.
The City is not responsible for withholding for or paying any of those taxes.
14.Indemnification. To extent allowed by law, PACE agrees to indemnify and
hold harmless the City. PACE releases and must defend, indemnify and hold
harmless the City, its elected officials, officers, employees, agents and volunteers
for any and all claims, demands, losses, negligent acts or omissions, and
liabilities (including costs and all attorney's fees) to or by any and all persons
and entities, including without limitation, their respective agents, licensees, or
representatives, arising from, resulting from, or connected with this Agreement
to the extent caused by the negligent acts, errors or omissions of PACE, its
partners, shareholders, agents, employees, or by the PACE's breach of this
• Agreement. To the maximum extent permitted by applicable law, this must
apply. However, this will not require PACE to indemnify the City against any
liability for damages arising out of bodily injury or property damages caused by
or resulting from negligence of the City. the City will protect, defend and
indemnify and save harmless PACE, its representatives and other employees all
costs, claims, judgments or awards of damages arising out of the negligent acts
or omissions of the City, its officers or employees. Further, in the case of
concurrent negligence of PACE on the one hand and the City on the other hand,
each party will be required to indemnify the other only to the extent of the
negligence of the party.
15. PACE agrees to maintain adequate insurance. PACE must maintain
insurance as set forth below.
15.1. The Minimum Scope of Insurance:
15.1.1. Automobile Liability Insurance covering all owned, non -owned,
hired and leased vehicles. If necessary, the policy must be endorsed to
provide contractual liability coverage.
15.1.2. Commercial General Liability Insurance must cover liability
arising from premises, operations, independent contractors and personal
injury and advertising injury. The City must be named as an insured
Professional Services Agreement
Page 4 of 8
• under PACE's Commercial General Liability insurance policy with
respect to the work performed for the City.
15.1.3. Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of Washington.
15.1.4. Professional Liability (Errors and Omissions, on a claims -made
basis) Insurance.
15.2. Minimum Amounts of Insurance.
15.2.1. Automobile Liability Insurance with a minimum combined
single limit for bodily injury and property damage of $1,000,000 per
accident.
15.2.2. Commercial General Liability Insurance must be written with
limits no less than $1,000,000 each occurrence, $2,000,000 general
aggregate.
15.2.3. Professional Liability Insurance must be written with limits no
less than $1,000,600 per claim and $1,000,000 policy aggregate limit.
15.3. The insurance policies are to contain, or be endorsed to contain, the
• following provisions for Automobile Liability, Professional Liability and
Commercial General Liability Insurance:
15.4. PACE's insurance coverage must be primary insurance as respect the
City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City must be excess of the PACE's insurance and must not contribute
with it.
15.5. The PACE's insurance must be endorsed to state that coverage must
not be canceled by either party, except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given to the City.
15.6. Acceptability of Insurers. Insurance is to be placed with insurers with
a current A.M. Best rating of not less than A: VII.
15.7. Verification of Coverage. PACE must 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 PACE before commencement of the work.
16. Confidential Information. Without the prior written consent of the City,
PACE must not disclose to third parties information that is not otherwise
subject to public disclosure unless: (1) The information is known to PACE prior
to receiving the same directly or indirectly in connection with the work; (2) The
Professional Services Agreement
Page 5 of 8
• information is in the public domain at the time of disclosure by PACE; or (3) The
information is received by PACE from a third party who does not have an
obligation to keep the same confidential.
17.The City owns all work product. All work product, including records, files,
documents, plans, computer disks, magnetic media or material which may be
produced or modified by PACE while performing services for the City belong to
the City. At the termination of this Agreement, PACE must deliver all original
records, files, documents, plans computer disks, magnetic media or other
material to the City. Until at least 12 months following final payment, PACE
must provide the City prompt access to (and the City must have the right to
examine, audit and copy) all of PACE's electronic files, books, documents, papers
and records related to the services performed for the City.
17.1. PACE may include representations of the work performed under this
Agreement in its promotional and professional materials, unless such
representation or materials contain confidential information.
18. PACE agrees comply with applicable federal and state laws. During the
performance of this Agreement, PACE must comply with all federal, state, and
local nondiscrimination laws, regulations and policies. These laws include, but
are not limited to: The U.S. Department of Transportation's policies against
discrimination, Chapter 49.60 RCW, Title «of the Civil Rights Act of 1964;
Section 109 of the Housing and Community Development Act of 1974, Age
Discrimination Act of 1975, Americans with Disabilities Act of 1990, Section 504
of the Rehabilitation Act of 1973 Executive Order 11246 of September 24, 1965,
and of the rules, regulations, and relevant orders of the Secretary of Labor,
Section 3 of the Housing and Community Development Act of 1968; Executive
Orders 11625, 12432, and 12138.
18.1. If PACE fails to comply with any federal or state law, regulation or
policy, the City may withhold payments to PACE under the Agreement until
PACE complies or the City may cancel, terminate, or suspend the Agreement,
in whole or in part.
18.2. The City will give PACE 30 days to cure any noncompliance.
19.Information and Reports. PACE shall maintain books, records, documents,
and other evidence and accounting procedures and practices which sufficiently
and properly reflect all hourly charges and direct costs of any nature expended
in the performance of this Agreement. These records shall be subject at all
reasonable times to inspection, review, or audit by City personnel and other
personnel duly authorized by the CITY or the Office of the State Auditor. PACE
will retain all books, records, documents, and other material relevant to this
. Agreement for three years after expiration and the Office of the State Auditor, or
Professional Services Agreement
Page 6 of 8
• any person duly authorized by the City shall have full access to and the right to
examine any of said materials during said period.
•
20.Dispute Resolution. The venue for any legal dispute regarding this Agreement
is Douglas County Superior Court.
21. General Provisions.
21.1. Attorney's Fees. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, each party may bear their own attorney's fees, expert witness
fees, filing fees, arbitrator fees, or other costs incurred in that action,
arbitration, or proceeding.
21.2. Authority. Each individual executing this Agreement on behalf of the
City and PACE represents and warrants that such individuals are duly
authorized to execute and deliver this Agreement on behalf of PACE or the
City.
21.3. Binding Effect. The provisions, covenants, and conditions in this
Agreement apply to bind the parties, their legal heirs, representatives,
successors, and assigns
21.4. Compliance with Laws. PACE, at his/her/its sole cost and expense,
may perform and comply with all applicable laws of the United States and
the State of Washington; and all applicable laws, ordinances, rules,
regulations, orders, and other requirements, in effect, of any governmental
entity (including but not limited to such requirements as may be imposed
upon the City and applicable to the Agreement). PACE may furnish
documents as may be required to effect or evidence such compliance.
21.5. Full Agreement. This Agreement and all attachments form all of the
covenants, promises, agreements and conditions, between the parties. All
attachments and addendum are incorporated herein by this reference, and
may be a part of this contract instrument. If discrepancy between the
documents, addendum and attachments may prevail over the Agreement.
This entire Agreement including all attachments specifies the working
relationship between the City and PACE and specific obligations of both
parties.
21.6. Non -waiver. Waiver of any default or breach of this agreement may
not be deemed to be a waiver of any other prior or subsequent default or
breach and may not be construed to be a modification of the terms of this
Professional Services Agreement
Page 7 of 8
• agreement unless stated to be such through written agreement of the
signatories hereto.
21.7. Performance. Time is of the essence of this Agreement in each and all
of its provisions in which performance is a factor.
21.8. Personal Liability. The parties agree that in no event may any official,
officer, employee, or agent of the City be in any way liable or responsible for
any covenant or Agreement herein contained whether express or implied,
nor for any statement of representation made herein or in any connection
with this Agreement.
21.9. Remedies Cumulative. Any remedies provided for under the terms of
this Agreement are not intended to be exclusive, but may be cumulative with
all other remedies available at the City at law or in equity.
22.Washington law governs the terms of this Agreement. The laws of the
State of Washington govern the interpretation, construction, and enforcement of
this Professional Services Agreement.
23.Severability. If a competent court of law determines any section or portion of
this Agreement to be unlawful, such determination may not affect the remaining
terms and conditions of the Agreement.
24. Survivability. The obligation of PACE under all provisions of this Agreement,
which may reasonably be interpreted or construed as surviving the completion,
termination, or cancellation of this Agreement, may survive the completion,
termination, or cancellation of this Agreement.
City of East Wenatchee
Steven C. Lacy, Mayor
Date:
ATTEST:
City Clerk
Professional Services Agreement
Page 8 of 8
PACE Enginee:
A2A
Title: 560)oe-
Inc.
'6.
)�Uft- �{w; L
Date: � �? 013
Federal Employee ID No.:
9 I-1,553"7
FINAL DRAFT SCOPE OF WORK Revision Date: 11/5/2013
0 Exhibit A-1
Professional Engineering Scope of Services
For
City of East Wenatchee, WA
Valley Mall Parkway LID Improvements Project
Project Description and Understanding:
The VMP Parking Lot LID Retrofit Project (project) includes improvements to a City owned public parking
lot located within the downtown commercial neighborhood of East Wenatchee. Currently, the City
parking lot is 100% impervious surface with no stormwater infrastructure for flow control or treatment.
The surface water sheet flows across the parking lot to either Valley Mall Parkway or to the unimproved
property surrounding the parking lot. The Valley Mall Parkway, main street corridor has an existing
stormwater conveyance system with a direct discharge to the Columbia River. At this time, no
treatment is being provided to the runoff from the parking lot prior to discharging to the Valley Mall
Parkway Corridor. Adjacent the VMP Parking Lot, a mid -block pedestrian crossing exist for visitors
accessing the west side of Valley Mall Parkway and businesses, this project also addresses
improvements to the mid -block cossing by; adjusting the location and re-routing pedestrian circulation,
retrofitting some existing stormwater elements by adding LID stormwater features (if possible) ,
changing the walking surface from pavement to pervious surface, pronounced crossing features such as
bulb outs, landscaping, LED lighting and advanced warning devices. The anticipated deliverables for the
VMP municipal parking lot and mid -block pedestrian crossing will include 100% plans and
specifications, a construction cost estimate and associated contract documents.
Design Manual
Design criteria to be used in this project consists of
The City of East Wenatchee has fully adopted the 2004 Stormwater Management Manual for Eastern
Washington (SWMMEW).
• The SWMMEW will be used for design of this improvement project.
Design Storm —100 year, 24 hour Type II SCS synthetic rainfall event
• The Eastern Washington Low Impact Development Guidance Manual will be used to select
preferred LID components.
VMP Municipal Parking Lot and Mid -Block Pedestrian Crossing LID Retrofit
The VMP Parking Lot is currently 100% impervious with no stormwater infrastructure in place. The City
anticipates utilizing only LID components for flow control and treatement with overflow directed into
the existing Valley Mall Parkway conveyance system. The BMP's to be considered from the guidance
manual are;
• BMP 4.2 — Amending Construction Site Soils: All soils within the proposed LID components
included in the retrofit design will be amended and may consist of; Bioretention swales,
dispersion facilities and tree boxes or tree wells.
FINAL DRAFT SCOPE OF WORK Revision Date: 11/5/2013
• BMP 4.3 — Dispersion: There may be an opportunity to use dispersion by directing some small
amounts of sheet flow to the surrounding pervious areas of the parking lot for treatment and
infiltration.
• BMP 4.4 — Bioretention: Bioretention cells that would also serve as landscape amenities will be
the primary goal for treatment and infiltration. The City will include overflow and flow control
structures that would redirect heavy storm flows to the existing stormwater conveyance system
in Valley Mall Parkway.
• BMP 4.5 — Trees: Currently, there are no landscape features within the Parking Lot or the
adjacent Valley Mall Parkway corridor. The proposed project would include several street trees
within the sidewalk section adjacent to both facilities. The proposed street trees would either be
incorporated into the bioretention cells or would be stand alone tree boxes with bioretention
components to collect and treat runoff, this would most likely include an overflow, for flow
control, out into the Valley Mall Parkway conveyance system.
BMP 4.6 — Permeable Pavement: It is unknown at this time whether the City would use
permeable pavement for the driving and parking surface. Use of this BMP will be dependent on
the design and recommendation of the design consultant. At a minimum, the City would
anticipate utilizing a permeable surface for the sidewalk sections and pedestrian circulation
associated with the parking lot improvements.
The goal of this project is to design stormwater flow control, treatment requirements and add landscape
amenities to the Municipal Parking Lot. Retain and infiltrate the East Wenatchee design storm event on -
site and provide an overflow connection and flow control back to the Valley Mall Parkway conveyance
line in excess of the design storm event.
Scope of Services:
Task 1— Project Management
1.1 Coordination with the City to ensure work is completed timely and within budget.
Monthly statements of progress will be prepared summarizing the project status, fees
invoiced, and remaining budget.
1.2 Coordination with local utilities, power, water, sewer, cable, phone, and gas. This scope
of work anticipates gathering as -built details and information for the aforementioned
utilities to locate the data on our base maps and augment the topographic survey.
1.3 Quality assurance and quality control (QA/QC) will be provided as part of this subtask.
Deliverables will be reviewed in-house to ensure quality and accuracy of the final
deliverable.
Task No. 2 —Topographic Survey and Base Map Development
The City has provided PACE with topographic survey of the parking lot and Valley Mall
Parkway project limits. PACE may need to augment this information in the design phase
of this project. Therefore, we have included a limited scope of work for additional
2
FINAL DRAFT SCOPE OF WORK Revision Date: 11/5/2013
survey work not to exceed one (1) additional day in the field for data gathering and one
(1) additional day in the office to process and update existing base mapping.
2.1 Using current topographic survey data, the consultant shall develop base mapping of
the parking lot site and Valley Mall Parkway immediately adjacent the VMP Parking
lot.
2.2 Research available utility records and as -built records to determine alignment and
location of non -City owned utilities including power, gas, cable, water, sewer, and
telephone.
2.3 Complete one (1) day of field survey within projects limits, as needed, to determine
location and elevation for existing surface features necessary to complete the
design. Compile field data in preparation for AutoCAD and acquire utility record
drawings.
2.4 Develop base mapping on 22" x 34" sheets and drawing scale will be 1" = 20' for
half sizing to 1" = 40'.
Assumptions:
• City will provide record drawings of storm drainage utilities within designated
project boundaries.
Deliverables:
• Three copies of base mapping two copies on 11" x 17" paper and one copy on
22" x 34" paper.
Task 3 — Pre -Design Report (Due January 31, 2014 to City and Ecology)
3.1 Complete Design Development for the VMP parking lot to include the following
major elements:
• Prepare preliminary site clearing and grading plan including the location of
retaining walls to maximize site and prevent future erosion of adjacent slopes.
The existing back of sidewalk elevation along Valley Mall Parkway shall be used
as the control for site grading.
• Hydraulic and Hydrologic modeling of Water Quality treatment flow and
conveyance capacity will be performed. The modeling performed will be
consistent with guidance provided in the current edition of the 2004
Stormwater Management Manual for Eastern Washington.
• Parking lot configuration and circulation will be optimized. (Eliminate one
access point onto Valley Mall Parkway). The design will include determining the
appropriate design vehicle to establish turning radii for the parking lot, i.e.
garbage trucks, vactor trucks, delivery trucks, as appropriate.
• Develop access and drainage catchment for adjacent tenant dumpster and
coordinate with Waste Management.
• Develop preliminary design for stormwater collection, treatment and
conveyance incorporating Low Impact Development (LID) best management
3
FINAL DRAFT SCOPE OF WORK Revision Date: 11/5/2013
• practices using the Eastern Washington LID Guidance Manual. The design
development will consider future cost and convenience of operation and
maintenance of the BMP's, pollution generating vs. non -pollution generating
surfaces, along with pervious surfacing opportunities.
• Develop preliminary design for charity car wash facilities and evaluate point of
discharge either to sanitary sewer, of if appropriate to LID features for the site.
• Develop preliminary design to accommodate bicycle parking and improve non -
motorized access to the site.
• Develop pedestrian circulation and ADA compliance through the parking site
providing access to the adjacent mid -block crossing in Valley Mall Parkway.
• Develop preliminary design to improve LINK transit stop adjacent to the parking
lot. Coordination with LINK to determine the desired configuration and location
of the transit stop including in lane or pull out for buses.
• Develop preliminary design to improve mid -block pedestrian crossing on VMP
• Develop landscaping and planting plans, including irrigation, for the parking lot
site.
3.2 Prepare TESC Plan
3.3 Develop Temporary Traffic Control Plan
3.4 Develop 30% PS&E and meet with City to discuss design elements and possible
utilities impacts.
3.5 Develop preliminary design report to present findings, conclusions, opinions of cost,
and recommendations.
3.6 Submit report to DOE and City for review and comment.
3.7 Consider and respond to DOE and City review comments.
Assumptions:
• The preliminary design report outline is presented in Exhibit 2.
Deliverables;
• Two (2) copies of the Base Mapping, % size (11 x 17) drawings, will be provided to
the City.
• Five (5) copies Preliminary Design Report, two to City and three copies to DOE.
• Prepare a response matrix outlining all comments received on preliminary design
report along with responses and actions taken.
Task 4 — Public Outreach ( Mid February)
4.1 Attend open house to engage local business owners and solicit input on the
proposed 30 % design schematics.
is4.2 Prepare up to three (3) exhibits for open house including, proposed site plan,
4
•
FINAL DRAFT SCOPE OF WORK
Revision Date: 11/5/2013
landscaping plan, and Stormwater system plan.
4.3 Summarize comments received at open house, evaluate and prepare responses.
Task 5 — Design Phase (60% due on June 1, 2014 and 90% due on July 25, 2014 to City)
5.1 Prepare 60% plans consistent with preliminary design report and incorporating
accepted review comments from the open house, DOE and City. The 60% submittal will
be sufficiently complete to technically convey the intent of the design without major
additions or revisions. Specifications and special provisions will not be provided with
the 60 % submittal. The preliminary opinion of cost will be updated with this submittal.
5.2 Attend progress meeting with the City to discuss 60% design details and
conclusions.
5.3 Prepare 90% plans and special provisions. PACE will use non -federally funded
boilerplate for bid proposal, contracts, contract bond and general requirements. Special
provisions will follow WSDOT/APWA 2012 Standard Specifications for Road, Bridge and
Municipal Construction. The 90% submittal will be technically complete and include
plans, profiles, sections, details, and general construction notes sufficiently complete to
convey intent and constructability of the proposed improvements. The opinion of cost
will be updated with this submittal.
5.4 Submit 90% to City for review and comments.
5.5 Edit 90% submittal incorporating City comments and prepare final 90% submittal to
the DOE for their review and comment.
5.6 Upon receipt of DOE review comments, prepare response matrix identifying all
comments received, responses , and actions taken.
Assumptions:
• This project will follow requirements for local Ad and Award procedures.
• ACAD layering will conform to PACE formatting standards, consistent with
APWA formatting standards, and City of East Wenatchee standards.
Deliverables:
• Two (2) copies of the 60% plans, %: size (11 x 17), will be provided to the City.
• Two (2) copies of the 60% opinion of cost will be provided to the City for review.
• Two (2) copies of the 90% plans, special provisions, and cost estimate will be
provided to the City for review and comment.
• One excel spreadsheet outlining all City review comments received on 90% submittal
will be prepared along with responses and actions taken.
• Two (2) copies of the final 90% submittal incorporating City review comments will be
5
prepared and submitted to the DOE (digital format required).
FINAL DRAFT SCOPE OF WORK Revision Date: 11/5/2013
• • The excel spreadsheet outlining all City review comments received on 90% submittal
will be updated to include DOE review comments received along with responses and
actions taken.
Task 6 — PERMITTING
6.1 Complete Cultural Resources Assessment and submit to Department of
Archeological and Historic Preservation (DAHP) to satisfy directive 05-05 funding
requirement.
6.2 Prepare SEPA checklist for City review and processing assuming a Determination of
Non -Significance threshold determination.
Assumptions:
• The City is lead agency for SEPA.
• The project is not located within any critical areas or wetlands.
• This project is below the threshold for DOE Construction Stormwater General
Permit.
• No other local, State or Federal permits are anticipated per this scope of work.
Deliverables:
• One (1) electronic copy, in word format, of the SEPA checklist will be provided to the
• City for review and threshold determination.
Task 7 — Bid Document Production
7.1 Revise 90% submittal including plans, special provisions, and opinion of cost ready
for construction. The project bid will be suspended pending receipt of adequate
construction funding. The bid documents will be sufficiently complete such that only
publication and bid opening dates are required along with the need to update State
Prevailing Wage rates and benefit codes.
Assumptions:
• The City will seek construction funding consistent with eligibility requirements
identified in the DOE planning and design grant funding agreement.
• It is anticipated that the bid documents will not be advertised until construction
funding is secured.
Deliverables:
• Two (2) full size paper copies of the 90% plans, special provisions, and cost estimate
will be provided to the City for review and comment.
• One (1) electronic pdf copy of the plans, special provisions, and cost estimate will be
provided to the City incorporating all review comments.
• AutoCAD Data of new parking lot design, mid -block crossing and standard details
provided to the City.
6
FINAL DRAFT SCOPE OF WORK
•
END OF SCOPE OF SERVICES
•
0
71
Revision Date: 11/5/2013
1
•' Valley Mall Parway Stormwater Connection
o to Columbia River outfall, Multiple Conveyance Systems) .
' t . (combined system, only storm)
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Outfall to the Columbia River _ s
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r. A
Project Legend
■ Municipal Parking Lot: East Wenatchee Downtown Parking Lot
. Existing Condition: 100% Impervious surface, no storm Infrastructure -�
Design: Full LID RetroFit Project, 100% Plans and Contract Doc.
■ Valley Mall Parkway (Main Street);
Exisitng Conditions: Changed from 4 lane to 2 lane section in 2013
Added perpendicular on -street parking. Outfall to Columbia River
Design: LID Retrofit, street landscape features October 2013
•
Stormwater Retrofit and LID Grant
Pre-Deslgn Report Suggested Outline
1. Introduction
2. Basin Description
a. Delineate the basin under historic pre -development and proposed conditions showing
topography and flow direction.
b. Provide information on the basin under consideration such as current and future land use
(i.e., residential, commercial, industrial), soils, area, water bodies, etc.
3. Site Description — Provide more detailed information on the project site including:
a. Existing stormwater controls
b. Total area
C. Impervious area
d. Current use
e. Vegetation
f. Drainage
g. Wetlands
h. Soils
i. Access
j. etc.
4. Design Alternatives and Analysis
a. Discuss alternatives considered and why they were or were not selected
b. Describe final alternative in detail
c. Provide detailed design calculations. Even though this may be a retrofit project and does not
. have to meet new/redevelopment criteria, provide the necessary calculations for
new/redevelopment so we can see how much you could improve water quality and flow
control if you had the space.
d. Discuss modeled water quality and flow control improvements.
e. Provide drawings of the proposed site improvements and schematic of flow through the
facilities if needed to assist in describing the proposed work.
f. Provide a copy of the computer model printouts. This may involve using "print Screen" to
include all the relevant information.
5. Implementation Recommendation
a. Identify the recommended alternative and discuss the next steps including permitting, cultural
resources, City Council involvement, other studies needed, etc,
6. Cost Estimate
7. Proposed Schedule
8. Attachments
a.
Basin Map
b.
Preliminary Plans
C.
Cost Estimate Details
d.
Storm Simulation output
e.
Geohydrologic Studies
f.
Soils Analysis
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•
•
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9
COUNCIL AGENDA BILL # 13-11-05
PRESENTER: Lori Barnett
TITLE: Director
CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
AGENDA ITEM #
AGENDA DATE:
0
November 12, 2013
DEPARTMENT: Community Development
TITLE:
Mitigation agreement with Washington State Department of Transportation (WSDOT) for SR 28/East end of
the George Sellar Bridge for the Grant Road Viewpoint Park relocation
BACKGROUND/HISTORY:
As a result of the construction of the SR 28 Bypass project, the city's Grant Road Viewpoint Park just
north of the Fred Meyer store, was removed. WSDOT agreed to pay for the cost to relocate the park. The
City Council took action on December 14, 2004 to select a site at the intersection of 9th St. NE and SR 28,
at the east abutment of the Pedestrian Bridge, as the preferred location for a relocated Viewpoint Park. The
park included a dedication column, a time capsule, a compass tile, a Sellar Bridge flag dedication plaque,
benches, lighting, and landscaping. The materials were inventoried and are stored in the City Shop.
The selected site was recently improved with a plaza using funds awarded by the Wenatchee Valley
Transportation Council. As part of that project, Phase 2 was identified for relocation of the features that
came from the Viewpoint Park. The designer of that project provided the estimate for the cost to
incorporate the features into the 9th Street Pedestrian Plaza along with other improvements to further
enhance the site. The agreement does not specify the relocation site - it just provides funding for relocation
of the features. This arrangement will provide the City with flexibility in selecting the relocation site.
The enclosed agreement provides $28,763 for construction of a relocated Viewpoint Park. By signing
the agreement and accepting the funds, the City is agreeing that WSDOT has mitigated the removal of the
Grant Road Viewpoint Park.
EXHIBITS:
1. Agreement
2. Site Inventory of the former Grant Road Viewpoint Park
3, Aerial showing existing Pedestrian Plaza and potential lease area for relocation of the Viewpoint Park
RECOMMENDED ACTION:
Staff respectfully requests that City Council accept the agreement, authorize the Mayor to sign on behalf of
the City, and direct the finance department to issue a voucher to WSDOT in the amount of $28,763.
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
$N/A $ N/A $ N/A
ACTION TAKEN:
Motion Made By: &Y- In ho Second By:'Jo h YlsoE'1
Councilmember Collings Councilmember Raab
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: Failed:
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
Agenda Bill Exhibit 1
GCB 1575
Mitigation Agreement
SR 28/ East End of the George Sellar Bridge
Grant Road Viewpoint
THIS Agreement is made and entered into between the Washington State Department of
Transportation, hereinafter the "STATE," and the City of East Wenatchee, hereinafter the "CITY,"
collectively called the "Parties" and individually the "Party."
WHEREAS, the STATE will construct the project entitled "SR 28/ EAST End of George Sellar
Bridge," hereinafter the "Project," and
WHEREAS, the CITY owns and maintains park property that is used as a viewpoint to the
Columbia River and considered park land, and
WHEREAS, the STATE has committed to fund the relocation of the viewpoint in the
environmental documented CE (Categorical Exclusion) under federal Section 4(f) guidelines to mitigate
for the taking of park lands for the Project, and
WHEREAS, the STATE agrees to provide funding to the CITY to relocate the viewpoint at the
STATE's cost as shown in Exhibit A,
NOW, THEREFORE, pursuant to chapter 39.34 RCW, the above recitals which are incorporated
• herein as if fully set forth below, and in consideration of the terms, conditions, covenants and
performances contained herein as well as Exhibit A which is attached and made a part hereof,
•
IT IS MUTUALLY AGREED AS FOLLOWS:
1. GENERAL
1.1 The STATE agrees to mitigate all Project impacts to the CITY's Grant Road Viewpoint and the
federal section 4(f) impact to CITY -owned park land by paying Twenty Eight Thousand Seven
Hundred and Sixty Three Dollars ($28,763.00) to relocate the viewpoint as shown in Exhibit A.
2. PAYMENT
2.1 The CITY agrees that the STATE's total federal section 4(f) and all other mitigation obligations
for Project impacts to Grant Road Viewpoint and CITY -owned park land is the maximum sum of
Twenty Eight Thousand, Seven Hundred and Sixty Three Dollars ($28,763)..
2.2 Upon execution of this Agreement, the CITY shall provide an invoice to the STATE, and the
STATE agrees to pay the CITY the maximum sum of Twenty Eight Thousand, Seven Hundreed
and Sixty Three Dollars ($28,763.00) within thirty (30) calendar days from receipt of the invoice.
GCB 1220
Pagel of 3
Agenda Bill Exhibit 1
2.3 Upon receipt of the STATE's mitigation payment, the CITY shall consider the Project federal
section 4(f) and all other impacts to the CITY -owned park land and Grand Road Viewpoint to be
fully mitigated.
3. TERM OF AGREEMENT
3.1 The Parties agree that this Agreement shall be a binding and continuing obligation upon the
STATE from the date of execution until STATE payment is made pursuant to Section 2. Upon
payment described herein, the STATE shall have no further mitigation obligations for park land
impacts, and this Agreement shall terminate upon payment.
4.0 PROJECT REPRESENTATIVES
4.1 The STATE's Representative, hereinafter "WSDOT Representative," is Paul Mahre, 1551 North
Wenatchee, WA 98801-1156 phone (509) 667-3090.
4.2 City of East Wenatchee Representatives, hereinafter "CITY Representative," is Lori Barnett, 271
9th St NE East Wenatchee 98802.
5.0 GENERAL PROVISIONS
5.1 Amendment: This Agreement may be amended or modified only by the mutual agreement of the
Parties. Such amendments or modifications shall not be binding unless they are in writing and
signed by persons authorized to bind each of the Parties.
• 5.2 Termination: Neither the STATE nor the CITY may terminate this Agreement without the written
concurrence of the other Party. Any termination of this Agreement shall not prejudice any rights
or obligations accrued to the Parties prior to termination.
5.3 Disputes: In the event that a dispute arises under this Agreement, it shall be resolved as follows:
The STATE and the CITY shall each appoint a member to a disputes board, these two members
shall select a third board member not affiliated with either Party. The three -member board shall
conduct a dispute resolution hearing that shall be informal and unrecorded. An attempt at such
dispute resolution in compliance with aforesaid process shall be a prerequisite to the filing of any
litigation concerning the dispute. Each Party shall be responsible for its own costs and fees and
agree to share equally in the cost of the third disputes board member.
5.4 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to
enforce any right or obligation under this Agreement, the Parties agree that any such action or
proceedings shall be brought in Thurston County Superior Court. Further, the Parties agree that
each will be solely responsible for payment of its own attorney's fees, witness fees, and costs.
5.5 Audits/Records: All records for the mitigation work in support of all costs incurred shall be
maintained by the CITY for a period of six (6) years. STATE shall have full access to and right to
examine said records, during normal business hours and as often as it deems necessary. Should the
STATE require copies of any records, it agrees to pay the costs thereof. The Parties agree that the
. mitigation work performed herein is subject to audit by either or both Parties and/or their
designated representatives, and/or state of Washington and/or the federal government.
GCB 1220
Page 2 of 3
Agenda Bill Exhibit 1
• By their signature below, the STATE and the CITY certify that they have read each and every provision
of this Agreement, including the amount of mitigation payment, and this Agreement was entered into
voluntarily by both Parties.
•
0
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date of the Parties last
written below.
CITY OF EAST WENATCHEE
Date:
APPROVED AS TO FROM:
Date:
STATE OF WASHINGTON
DEPARTMENT OF TRANSPORTATION
Date:
APPROVED AS TO FORM:
Ann E. Salay
Assistant Attorney General
Date:
GCB 1220
Page 3 of 3
Agenda Bill Exhibit 1
•
Time Capsule Plaza
Pre -Design Cost Estimate
East Wenatchee, WA
June 21, 2012
Prepared by Project Groundwork
ITEM
I CITY
, UNIT
UNIT
COST
I EXTENDED
Area Wide
Mobilization
1
LS
1000
$1,000
Temporary ESC
1
LS
300
$300
Site Clearing/Grubbing
0.05
AC
5000
$250
SPCC Plan
1
LS
200
$200
SWPP
1
LS
1000
$1,000
Excavation Including Haul
30
CY
15
$450
ELEMENT SUBTOTAL
$3,200
Plaza
Sitework, Excavation
1
LS
800
$800
Stabilized Gravel Surface (4"Depth)
13
CY
75
$975
Pavers — Type IV
70
SF
16
$1,120
Feature Boulder
7
EA
350
$2,450
Landscape Edging
165
LF
5.5
$908
Time Capsule Placement
1
LS
75
$75
Plaque Placement
2
EA
150
$300
ELEMENT SUBTOTAL
$6.628
Pedestrian Bridge
Sitework, Excavation, Backfill 1 LS 1000
$1,000
Footing, Abutments 4 CY 600
$2,400
Handrails 1 LS 3000
$3,000
Framing 1 LS 1000
$1,000
Decking 180 SF 20
$3,600
ELEMENT SUBTOTAL
$11,000
Construction Cost Subtotal
$20,828
Contingency (4%)
$833
PE and CE (Estimated at 25% of Construction)
$5,415
Washington State Sales Tax, Douglas County (8.1%)
$1,687
Revised July 29, 2013
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TOTAL DESIGN AND CONSTRUCTION COST $28,763
GCB 1575
Exhibit A
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COUNCIL AGENDA BILL # 13-11-06
PRESENTER: Lori Barnett
TITLE: Director
CITY OF EAST WENATCHEE
CITY COUNCIL AGENDA BILL
AGENDA ITEM #
AGENDA DATE:
DEPARTMENT:
10
November 12, 2013
Community Development
TITLE:
First Amendment to Agreement with the Columbia Valley Housing Association (CVHA) to award the 2011 and 2012
Community Development Block Grant (CDBG) funds for the homeownership assistance program.
BAC KG ROUND/ HISTORY:
CVHA, using the City's CDBG Program funds, will provide direct assistance to eligible low and moderate -income
buyers to help them purchase existing housing units that are for sale on the open market within the East Wenatchee
city limits. Eligible funded activities related to home purchase include:
a. Payment of all or part of the premium for mortgage insurance required up -front by a private mortgagee.
b. Payment of any or all of the reasonable closing costs.
c. Payment of up to 50% of the down payment.
d. Homebuyers must have household incomes at or below 80% of the Area Median income.
An Agreement was approved by Council on October 8, 2013 including an Exhibit A that extended the eligible area
to the entire East Wenatchee Urban Growth Area. Subsequently, HUD has determined that the potential limited
availability of affordable housing within the city limits does not justify extending the service area to the urban growth
boundary.
This amendment would reduce the service area to the city limits, extend the deadline for use of the funds and
allow pre -award costs that will permit the CVHA to utilize the funds for a home purchase for a property that is located
in the city limits. That purchase was in process at the time the agreement was being approved. It was completed after
Council approval of the Agreement but before their Board took action. HUD staff indicated that was acceptable. HUD
has indicated that pre -award costs are eligible.
EXHIBITS:
1. First Amendment to the agreement
RECOMMENDED ACTION:
Staff respectfully requests that Council approve the amendment and authorize the Mayor to sign it.
FINANCIAL DATA:
Expenditure Required Amount Budgeted Appropriation Required
$N/A $ 61,275 $ N/A
ACTION TAKEN: RIP"V-`'
Motion Made By: r1C6cut-� Second By:
Councilmember Collings
Councilmember Johnson
Councilmember McCourt
Councilmember Barnhart
Passed: Failed:
Councilmember Raab
Councilmember Buckner
Councilmember Detering
Mayor Lacy (in case of tie)
.10
Agenda Bill Exhibit 1
•
FIRST AMENDMENT TO
AGREEMENT BETWEEN THE CITY OF EAST WENATCHEE AND
COLUMBIA VALLEY HOUSING ASSOCIATION FOR
EAST WENATCHEE CDBG HOMEOWNERSHIP ASSISTANCE PROGRAM
THIS AMENDMENT TO THE AGREEMENT, is made and entered into this
day of , 20 between the City of East Wenatchee ("Grantee") and the
Columbia Valley Housing Association ("Subrecipient").
RECITALS
WHEREAS, the East Wenatchee City Council approved entering into an agreement
with the Columbia Valley Housing Association at their October 8, 2013 meeting and
the Columbia Valley Housing Association Board of Directors approved the
agreement at their October 17, 2013 meeting; and
WHEREAS, HUD has confirmed that the City cannot justify using the funds
outside the City limits as provided in the executed agreement as Exhibit A;
NOW, THEREFORE, it is agreed between the parties hereto that the agreement
will be amended as provided in section VI(G) and described below;
Amendment 1: Amend section I which currently reads:
I. SCOPE OF SERVICE
A. Activities
The Subrecipient will be responsible for administering a Homeownership
Assistance Program using CDBG Program Year funds from 2011 and 2012 in
a manner satisfactory to the Grantee and consistent with any and all
applicable Federal, state, and local rules and regulations as a condition of
providing these funds. Such program will include the following activities
eligible under the Community Development Block Grant program:
Program Delivery
Provide direct assistance to eligible low and moderate -income buyers to
purchase existing housing units, to be used for permanent housing, that are
for sale on the open market within the East Wenatchee city limits or within
the unincorporated area of Douglas County located within the Urban Growth
Area as depicted on Exhibit A to this Agreement.
To read:
II. SCOPE OF SERVICE
A. Activities
The Subrecipient will be responsible for administering a Homeownership
Assistance Program using CDBG Program Year funds from 2011 and 2012 in
a manner satisfactory to the Grantee and consistent with any and all
First Amendment to Subrecipient Agreement: CVHA Homeownership Assistance Program
CDBG PY2011 and 2012
MBE
Agenda Bill Exhibit 1
• applicable Federal, state, and local rules and regulations as a condition of
providing these funds. Such program will include the following activities
eligible under the Community Development Block Grant program:
Program Delivery
Provide direct assistance to eligible low and moderate -income buyers to
purchase existing housing units, to be used for permanent housing, that are
for sale on the open market and located within the East Wenatchee city
limits.
Amendment 2: Amend section II which currently reads:
II. TIME OF PERFORMANCE
Services of the Subrecipient must start on the 218t day of October, 2013 and
end on the 17th day of March, 2014. The term of this Agreement and the
provisions herein must be extended to cover any additional time period
during which the Subrecipient remains in control of CDBG funds or other
CDBG assets.
To Read:
II. TIME OF PERFORMANCE
Services of the Subrecipient must start on the 218t day of October, 2013 and
end on the 318t day of May, 2014. The term of this Agreement and the
is provisions herein must be extended to cover any additional time period
during which the Subrecipient remains in control of CDBG funds or other
CDBG assets. Pre -award costs for eligible activities related to this program
are permitted under this Agreement.
IN WITNESS WHEREOF, the Parties have executed this amendment to the
agreement as of the date first written above.
Grantee
City of East Wenatchee
Subrecipient
Columbia Valley Housing Association
By By
Steven C. Lacy, Mayor Board President
Attest
Dana Barnard, City Clerk Federal I.D. #
Approved as to form
Devin Poulson, City Attorney
• First Amendment to Subrecipient Agreement: CVHA Homeownership Assistance Program
CDBG PY2011 and 2012
-2-
SL, m; gd 6j: �e Lkcj
• Wenatchee Valley Transportation Council
Confluence Technology Center
285 Technology Center Way, Wenatchee
October 10th12013 — 9:00 A.M. to 11:00 A.M.
MEETING MINUTES
ATTENDEES:
Richard DeRock, Link Transit
Frank Kuntz, City of Wenatchee
Russell Clark, City of Rock Island
Ken Stanton, Douglas County
Steve Lacy, City of East Wenatchee
STAFF: Jeff Wilkens, Executive Director
Kathy Bruno, Clerk of the Board
Nick Manzaro, Transportation Planner
Bill Haven, NCRTPO Liaison
Dan Sarles, WSDOT
Keith Goehner, Chelan County
Mark Spurgeon, Port of Douglas County
Mike Mackey, Port of Chelan County
GUESTS: Dave Schettler, City of Leavenworth Steve King, City of Wenatchee
Terry Mattson, WSDOT Greg Pezoldt, City of East Wenatchee
Dan Frazier, City of Wenatchee Mitch Reister, Chelan County
Greg Herkenrath, Pacific Engineering Christine Johnson, Aging & Adult Care
1) CALL TO ORDER & INTRODUCTIONS
The meeting was called to order by Chair Richard DeRock at 9:00 a.m. Introductions were
made around the room.
2) AGENDA REVIEW & APPROVAL
Jeff Wilkens asked for an additional item under the Business Items section to amend the consultant
contract with the TranspoGroup for the Truck Route Study. The agenda addition was approved on a
motion by Russell Clark and 2nd by Ken Stanton.
3) CONSENT AGENDA
The consent agenda which included the September 12th, 2013 minutes, checks numbered 264742-
264758 in the amount of $8,927.22, payroll in the amount of $31,335.17 for September, and the
Monthly Financial Report for August 2013 was approved on a motion by Frank Kuntz and 2"d by Steve
Lacy.
•
1
•
4) OPEN PUBLIC COMMENT
There was no public comment.
5) BUSINESS ITEMS
(a) Resolution WVTC 3-2013 Adopting the "2014-17 Regional Transportation
Improvement Program (RTIP)"
Jeff Wilkens explained the federal requirements satisfied by the RTIP and final changes to the
document, and then asked for an amendment to include a carryover of $166,158 for the Port of
Chelan County Olds Station Sidewalks Project. Resolution #WVTC 3-2013 was adopted unanimously
with the requested amendment on a motion by Russell Clark and 2"d by Keith Goehner.
(b) Approval of Title VI Annual Report to WSDOT
Jeff Wilkens explained the federal requirements for Title VI reporting, and then the Annual Report
and Update Questionnaire was approved unanimously on a motion by Steve Lacy and 2nd by Ken
Stanton.
(c) Amend the Consultant Contract for the Truck Route Study
• Jeff Wilkens requested authorization to have the consultant for the truck route study develop a more
detailed cost estimate for the various phases of the Confluence Parkway Phase 1 project. It is
expected that it should cost less than $5,000 but no more than $6,000. Approval was given to
amend the TranspoGroup Contract up to an additional $6,000 on a motion by Mark Spurgeon and
2"d by Frank Kuntz.
6) REPORTS & DISCUSSION ITEMS
6(a) MPO/RTPO Membership & Governance Update
Jeff Wilkens stated that he will be putting together a committee to work on the governance issues
due to the boundary change. The following members volunteered to be on the committee: Ken
Stanton, Keith Goehner, Mike Mackey and Russell Clark. Okanogan County Commissioner Jim Detro
will also be asked to join the committee. Jeff was directed to get more detail on the funding for
Okanogan County, if they do not become part of the current board.
6(b) Director's Report & Member Roundtable
Jeff Wilkens has registered to attend the annual AMPO conference in Portland, OR this month.
Richard DeRock gave prior approval for his out of state travel.
• Each member gave a brief update on transportation projects in their areas.
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6(f) Executive Session
The board went into Executive Session at 10:18 a.m. on a motion by Keith Goehner and 2"d by
Russell Clark to discuss the Executive Director's salary range. The Executive Session ended at 10:33
a.m. then Richard DeRock explained the board's consensus that there will be an automatic annual
evaluation and additional work to develop a formal merit pay system for the Director. He also stated
that the results of the performance review last month was very good so there will be further
consideration of a salary range adjustment during an Executive Session next month.
NEW BUSINESS/ADJOURN
The meeting was adjourned on a motion by Keith Goehner and 2nd by Mark Spurgeon at 10:37 a.m.
APPROVED ON November 14, 2013
ATTEST:
Richard DeRock, Chairman
•
Jeff Wilkens, Executive Director
Title VI and Americans with Disabilities Act (ADA) Notice to Public
It is the Wenatchee Valley Transportation Council's (WVTC) policy to assure that no person shall, on the
grounds of race, color, national origin or sex, as provided by Title VI of the Civil Rights Act of 1964, be
excluded from participation in, be denied the benefits of, or be otherwise discriminated against under any
federally funded programs and activities. All meeting sites are accessible to persons with disabilities.
• Accommodations for people with disabilities can be arranged with advance notice. Any person, who
believes his/her Title VI protection has been violated, may file a complaint with the WVTC Title VI
Coordinator at (509) 663-9059.
0
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40
North Central Regional
Transportation Planning Organization
City Hall
135 East Johnson Avenue, Chelan
Wednesday, September filth, 2013
10:30 a.m.-12:00 p.m.
MEETING MINUTES
ATTENDEES:
Russell Clark, City of Rock Island
Dan Sarles, WSDOT
Mark Spurgeon, Port of Douglas County
Ken Stanton, Douglas County
Jim Detro, Okanogan County
Dave Acheson, Town of Winthrop
Kurt Danison, Tonasket, Omak, Pateros
Richard DeRock, Link Transit
Soo Ing-Moody, Town of Twisp
Wendy Isenhart, City of Chelan
Gail Howe, City of Pateros
Bill Haven, City of Entiat
Chris Branch, City of Oroville
William Marchand, Colville Confederated
Tribes
Doug England, Chelan County
Jim Bailey, City of Wenatchee
Leanne Whitener, Okanogan County
Transportation & Nutrition
STAFF: Jeff Wilkens, Executive Director
Kathy Bruno, Executive Assistant/Clerk of the Board
GUESTS:
Paul Mahre, WSDOT
Terry Mattson, WSDOT
Ralph Malone, City of Omak
Judy Lorenzo, WSDOT HQ
Jennifer Korfiatis, North Central EDD
Angie Davis, WSDOT HQ
Teri Hickey, WSDOT HQ
Dan Frazier, City of Wenatchee
Matias Rudback, Pacific Engineering
Misty Ruiz, City of Brewster
Todd McDaniel, City of Okanogan
Curtis Johnson, Okanogan
1) CALL TO ORDER AND INTRODUCTIONS
The meeting was called to order at 10:30 a.m. by Chair Russell Clark. Introductions were
made around the room.
1
•
2) AGENDA REVIEW AND APPROVAL OF MINUTES
The June 12, 2013 minutes were unanimously approved on a motion by Ken Stanton and 2"d
by Jim Detro.
3) PUBLIC COMMENT PERIOD
There was no public comment.
4) BUSINESS AND DISCUSSION ITEMS
a. Approve Preliminary 2014-2017 Regional Transportation Improvement
Program
Jeff Wilkens explained that the draft project list only contains those projects that have
federal funding attached to them. After some discussion the Okanogan County and NCW
rural areas portions were approved on a motion by Kurt Danison and 2'd by Dan Sarles,
with the caveat that if the cities or towns identify additional projects, they could be added
before final adoption by the WVTC board next month.
b. Transportation Alternatives Program Status Report
Jeff Wilkens explained that the submitted projects are listed on the WVTC website, and
stated that the project selection has been delayed until the November meeting.
c. NCRTPO Governance Discussion
Jeff Wilkens reported that the WVTC Board cast a vote at their last meeting to start a
process of reorganizing the Regional Transportation Planning Organization with a revised
boundary limited to Chelan and Douglas counties. Three meetings of the Okanogan
County members were held within the last month to discuss this effort. Jeff passed
around handouts explaining his summary of impacts to Okanogan County along with the
various comments received from the Okanogan county members (the handouts are in
the file.) The Okanogan county members were in agreement that they would like to
remain a member of the NCRTPO. Richard DeRock explained to the board how and why
the WVTC board came to their decision. Kurt Danison stated that he strongly felt that
Okanogan County is very much linked to the Wenatchee Valley with the railroad,
Pangborn airport, and Highway 97. He feels the regional planning is important, and
should include Okanogan County. Judy Lorenzo and Dan Sarles with WSDOT reviewed
how the RTPOs were originally formed throughout the state. Judy passed around a
handout to the board (the handout is in the file.)
7
• Leanne Whitener also stated that the Human Services Plan for transit is vital for the
region, and Jim Detro spoke to the fact that he felt Okanogan County can't stand alone
because of the population density, and felt the Hwy 97 corridor is vital to the region. Ken
Stanton stated that he sees all three counties as being joined at the hip. At that point a
motion was made by Ken Stanton to direct staff to come back to the November meeting
with a plan to continue with a 3-county RTPO and to become compliant with the state
law. Jeff Wilkens stated a final version cannot be completed by November, but will at
least bring a task list and an idea to make the current RTPO stronger, and to integrate
WVTC and NCRTPO into one board. The WVTC and NCRTPO interlocal agreements will
need to be rewritten. The motion was then approved unanimously. It was then decided
to form a sub -committee to help finalize an update to the organizations governance
process. Board members need to be involved with the committee to determine the voting
process, but staff members can be involved with the rest. Ken Stanton, Jim Detro, Doug
England, Richard DeRock, Russell Clark, Kurt Danison or Chris Branch, Teri Hickey and
Terry Mattson will participate on the committee.
d. Director's Report/Member Roundtable Updates
Jeff Wilkens reported on the upcoming Senate "Listening Tour" in Wenatchee, to be held
at the Chelan County PUD on Sept 23"', to begin at 6:00 p.m. Jeff then passed around
• the Senate Majority Coalition Caucus fact sheet showing their 2014 Transportation
Reforms, which they want to see before there is any agreement for a new gas tax
increase.
5) NEW BUSINESS/ADJOURN
The meeting was adjourned at 12:10 p.m. on a motion by Mark Spurgeon.
ATTEST:
Russell Clark
Chairman
Jeff Wilkens
Executive Director
Title VI and Americans with Disabilities Act (ADA) Notice to Public
It is the Wenatchee Valley Transportation Council's (WVTC) policy to assure that no person shall, on the grounds of race,
color, national origin or sex, as provided by Title VI of the Civil Rights Act of 1964, be excluded from participation in, be
denied the benefits of, or be otherwise discriminated against under any federally funded programs and activities. All
meeting sites are accessible to persons with disabilities. Accommodations for people with disabilities can be arranged
with advance notice. Any person, who believes his/her Title VI protection has been violated, may file a complaint with the
WVTC Title VI Coordinator at (509) 663-9059
3
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Wenatchee Valley
November 5, 2013
To: WVTC Executive Council
From: Jeff Wilkens, Executive Director
Transportation Council
Subject: Agenda Item #4(b) —Transportation Alternatives Program (TAP) Projects 2014-2017 Funding
Background
This year NCRTPO received eighteen applications for the 2014-2017 TAP funding. During our November
meeting the board will receive a presentation for each project, and will have an opportunity to ask
questions of the project sponsors. Following the presentations, the board will be asked to complete a
ranking and project selection process to determine the distribution of available funds.
A scoring sheet will be provided at the beginning of the meeting that can be filled out as we proceed
through the presentations. As in past years, each board member's results will be tallied and combined
into an overall composite score that will be used to rank the projects in the order of highest to lowest
score. Final project selection will then be at the board's discretion.
The criteria attached on the following page were approved by the board prior to the call -for -projects,
and should be used to evaluate the projects when filling out the scoring sheet.
WVTC MEMBERS
City of Wenatchee • City of East Wenatchee • City of Rock Island • Chelan County • Douglas County •
Port of Chelan County • Port of Douglas County • WSDOT North Central Region • Link Transit
0 Summary of Weighted Project Evaluation Criteria
Accessibility / Equity: 0-15 points
• Does the project improve mobility for disadvantaged populations?
• Is the project close to affordable housing, will the project improve low income access to
transit, essential services, education opportunities, etc.?
Achieves an identified/planned need and has public benefit: 0-20 points
• How does the project relate to an adopted plan?
• How does the project improve the public travel experience and/or travel options, in
keeping with the objectives of the Transportation Alternatives Program?
Multimodal connectivity and access to jobs and/or services: 0-20 points
• Is there a connection between modes of transportation (i.e. walk/bus)?
• • Does it improve transportation choices?
• Does it connect to job locations, civic center, library, grocery market, park, retail center,
medical office, school, etc.?
Safety: 0-20 points
• Does the project improve public safety for transportation system users?
• Does the project address a known safety issue, or does it address bicycle or pedestrian
safety?
Financial support, partnering and project readiness: 0-25 points
• Are there any non-federal project funding commitments?
• Does the public accept the project, and are there any inter -agency partnerships?
• Are there environmental approvals, and have the right-of-way issues been addressed?
• WVTC MEMBERS
City of Wenatchee • City of East Wenatchee • City of Rock Island • Chelan County • Douglas County •
Port of Chelan County • Port of Douglas County • WSDOT North Central Region • Link Transit
Housing Authority of Chelan County
& the City of Wenatchee
•1555 S. Methow
Wenatchee, WA 98801
MINUTES
I. CALL TO ORDER
October 24, 2013
Regular Meeting
The meeting was called to order at 8:39 a.m. Commissioners present were: Lisa Romine, Alan
Beidler, John Bryant, Lalla Przespolewski and Jesse Lane. Commissioners Al Schuster, Sandy
McCourt, Bill Dronen and Carolyn Case were excused. Staff representatives present were:
Executive Director, Alicia McRae; Assistant Director; Marty Stierlen and Accounting Specialist,
Toni Peterson. Phil Johnson and Vicki Carr were in attendance as a guests.
II. PUBLIC COMMENT (none)
Board members introduced themselves to Vicki Carr, a board candidate from the City of Chelan.
0 A. MINUTES
The minutes of the September 26, 2013 regular meeting were approved on a motion by Alan
Beidler and seconded by Lalla Przespolewski.
B. FINANCIAL STATEMENTS
Toni noted that all properties cash flow had improved. On a motion by John Bryant and
seconded by Jesse Lane, the board unanimously approved the financial statements for
September, 2013. Toni informed the board that during the government shut -down all reserve
expenses had to be paid from the operating account.
C. VOUCHERS
Vouchers audited and certified by the auditing officer as required by RCW 42.24.090, and those
expense reimbursement claims certified as required by RCW 42.24.090, have been recorded on
a listing made available to the Board. (See attached). As of September 30, 2013, on a motion
by John Bryant, seconded by Lalla Przespolewski and carried unanimously, payment was
approved for the vouchers included in the above referenced list and further described in the
following table:
ACCOUNT
From
To
TOTAL
General Operating
S8 HAP Checks & ACH #
50967
2889
51190
3000
352,242.59
EFT
September 1
September 30
$ 120,490.63
TOTAL 1
$ 472,733.22
MSP Operating Checks #
3560 3566
$ 11,191.60
MSP EFT
September 1
September 30
$ 395.83
MSP Reserves
$ -
TOTAL
$ 11,587.43
Bello Rio Operating
Checks #
10798
10807
$ 11,446.37
BR EFT
September 1
September 30
$ 731.57
BR Replacement Reserves
1016
$5,112.45
TOTAL
$ 17,290.39
WII Reserve
25499
$ 1,090.76
HG Reserve
25497
$ 3,840.02
CG Reserve
25500
$ 1,408.85
GG Reserve
25496, 25501
$ 3,935.92
CB Reserve
25498
$ 2,228.75
TOTAL
$ 12,504.30
Total $ 514,115.34
IV. REPORTS
A. Chairperson's Report (none)
B. Directors Report
Marry and Alicia provided an update on the KCHA acquisition project. Marry noted that
negotiations continue with Banner Bank as members of the development team are not satisfied
with the restrictions surrounding the reserve account requirements and the pre -payment penalty.
Marry and Alicia will be meeting with the Banner Bank public finance representative later in the
day. Marty solicited for bond council and should have a recommendation at the November
meeting. The team is currently working on the transfer of the HAP contract with HUD.
•
0
Executive Session I*
At 8:57 a.m., Chairperson Lisa Romine called for a 10 minute Executive Session to discuss
matters relating to the performance of a public employee.
The regular meeting resumed at 9:03 a.m.
Alicia elaborated on Toni's earlier comment about reserve expenses during the government
• shut -down, stating that we are now processing those requests through RD for reimbursement to
the operating accounts.
Due to the Thanksgiving holiday, it was determined that the November board meeting will be
held on November 19, 2013 at 8:30 a.m.
C. Finance/Asset Manager/Occupancy Report
John Bryant complimented staff on the fact that unit turns are happening faster.
C. Development Report
Marty reported that she sent out an RFP for a 504 Transition Plan for the Applewood.
A walk-thru of the plumbing project at ManSun Villa was held on October 23ra
Marry updated Vicki Carr on what properties are located in the Chelan/Manson area.
At Vicki's request, board members shared why they participate on the Housing Authority board.
ADJOURNMENT
• The meeting was formally adjourned at 9:20 a.m.
Alicia McRae,
Secretary
Approved as Written:
0
Board Signature Here
0 MINUTES
LINK TRANSIT BOARD OF DIRECTORS
•
October 15, 2013
3:00 p.m.
Link Transit Operations Base, 2700 Euclid Avenue, Wenatchee, WA
ATTENDANCE
Board members: Chair Larry Meyer, Vice -chair Jim Fletcher, Bill Haven, Joyce Huber, Ken
Stanton, Harry Raab, Dale Snyder, Lyle Markhart, Russell Clark, Doug England, Bob Goedde,
Ron Walter, and Jim Bailey
Link Transit Staff: Richard DeRock, Nick Covey, Todd Daniel, Lynn Bourton, Howard
Johnson, Bruce Phillips, and Maria Hansen
Absent/Excused: None
1. CALL TO ORDER
Chair Larry Meyer called the meeting to order at 3:00 p.m. With ten voting board members and
one non -voting member present, at that time, a quorum was established. Alternate board
members Bill Haven from Entiat, and Harry Raab from East Wenatchee attended the meeting,
which helped ensure the achievement of a quorum.
2. BOARD ADMINISTRATION & COMMUNICATIONS
Operations Manager Howard Johnson introduced two new Operations Supervisors: Jennifer
Therien, who has worked at Link Transit since 2003, she began as a Coach Operator and most
recently has been an Operations Dispatcher. The second new supervisor, Mike Barrett, has
worked as a Coach Operator since 2006. Howard Johnson noted that these two employees
had successfully demonstrated their leadership abilities and are now working through the
supervisor training process.
3. PUBLIC COMMENT (Comments are heard; speakers are limited to 3-minutes per person)
No public comments were given.
4. CONSENT AGENDA
The following Consent Agenda items were submitted for approval:
• Minutes of the September 17, 2013 board meeting
• Accounts Payable Vouchers from September 2013, totaling $436,452.53
• Payroll Vouchers from September 2013, totaling $308,644.39
Board Action:
There were no requests for corrections or changes to any of the Consent Agenda items.
Dale Snyder moved to approve all Consent Agenda business items as presented.
Russell Clark seconded the motion.
VOTE: All in favor with ten voting board members present for this vote.
Motion Carried
Ron Walter and Jim Bailey arrived at 3:08 p.m. With their arrival, 100% board attendance was
achieved.
Link Transit Board Meeting & Budget Workshop October 15, 2013
Page 1 of 5
5. DISCUSSION / ACTION ITEMS
There were no items that required board "action" for this October 15, 2013 meeting.
6. STAFF REPORTS
Project Updates:
• Monitor Pull-out Bus Stop on Highway 2
Bruce Phillips reported that the highway stop & pullout has been constructed and today the
electric components are being installed by McCandlish Electric. He stated that the Monitor
stop should be operational by next week.
Valley North Bus Stop Area
Phillips reported that an Agreement between Link Transit and Center Investments, the
owners of the Valley North Mall, is close to being completed for signature. However, some
of the preliminary "layout" work has begun based on the verbal commitments given by
Center Investments. Once the Agreement is formalized and signed, full construction can
begin. Phillips said he anticipated the mall bus stop zone to be completed and operational
within a two week period. The new mall bus zone will eliminate all of the existing bus stops
that are located on both the East and West side of the Valley North Mall; all stops will be
combined into one central location that will enable the buses to easily enter and exit the Mall
property. The buses will no longer have to make u-turns on west -side of the Mall, which will
eliminate the wear and tear of the parking lot pavement that Link Transit has paid to repair
over the past several years. The new bus zone will also help mitigate operational issues
that have occurred on Springwater Street in the Lewis and Clark Elementary school zone
area.
• E-bus Project
Todd Daniel reported that E-bus is now paying project delay costs based on the fact that the
project has fallen so behind from its original schedule. Daniel also noted that operational
issues continue and E-bus has been sending some of its personnel to Wenatchee to try to
address the issues. Richard DeRock noted that he was not pleased to report that the
project has continued to experience bumps and issues.
Monthly Financial Report
Nick Covey presented the report of the Agency's financial activity through September 2013.
Covey noted that increased sales tax revenues that come in during this 2013 year have seen
the highest, most positive growth since 1991, when Link Transit began its first year of operation.
2013 Sales Tax:
♦ September 2013 sales tax (earned in the month of July 2013)
$
822,476
♦ Over budgeted amount for the month by 17.7%
$
123,679
♦ YTD Sales Tax Collection
$
4,913,309
♦ YTD budget amount
$
4,146,032
♦ Over YTD budgeted amount by 18.51%
$
767,277
♦ Last year's YTD sales tax amount
$
4,234,493
♦ Over last year's YTD sales tax amount by 16.0%
$
678,816
2013 Operating Budget -to -Actual:
♦ Budget year elapsed = 75% $ 7,693,733
♦ Operating budget spent = 72% $ 7,432,878
Link Transit Board Meeting & Budget Workshop October 15, 2013
Page 2 of 5
• ♦ <Over> Under Budgeted Amount $ 260,855
2013 Fares Collected:
♦ Fares collected $ 67,342
♦ YTD fares collected $ 549,010
♦ Under YTD budget by 5% $ (26,222)
♦ Under YTD 2012 fares collected by 8.1 % $ (44,818)
Cash Accounts:
♦ Cash w/Treasurer — 2013 over 2012
$
608,960
♦ Investments — 2013 over 2012
$
301,541
♦ Vehicle Reserves - 2013 over 2012
$
713,999
♦ Facility/Equipment Reserves - 2013 over 2012
$
79,566
2013 Capital Expenses:
♦ Projector/TV Conference Room
$
3,176
Score Cards, Monthly System Performance Report
Richard DeRock presented the score card report, which provides an overview of the System's
performance each month, beginning in January 2013. This report is used to measure how the
Agency is meeting the annual performance goals that have been set by the Board through the
annual budgeting process.
Chair Meyer stated that a resident of Leavenworth had contacted Link Transit to indicate her
desire to make a $500 contribution to the Agency. The Leavenworth resident is blind, uses Link
Transit extensively and she wishes to help others use the bus system as well.
Chair Meyer said that he had the opportunity to meet with the lady to talk about her proposal.
He reported that she is so happy and pleased with the services that she receives from Link
Transit that she wished to make a contribution to Link Transit that could be used to help others
also use the System. Meyer noted that Link Transit staff has spoken with her and with legal
counsel and subsequently a special "helping hand" program is being developed where the
donated funds will be used to help purchase a bus pass for someone who is low income and
could use some help to purchase a bus pass to access their workplace or other important life
services.
General Manager's Report
Richard DeRock said that he has been spending a significant amount of time reading the
proposed new federal rules that were recently released by the Federal Transit Administration
(FTA). A National Transportation Safety Plan is currently being drafted and FTA is currently
taking comment on the draft rules, which, as proposed could present a fundamental shift in how
transit systems operate at the local level. The comment period on the current proposed set of
rules will be held throughout 2014 with a final Plan and Set of Rules adopted in 2015. The new
proposed regulations are a result of a horrible rail system accident that occurred in Boston, MA
where their set of safety systems and infrastructures failed.
Additionally, DeRock has also been reviewing the federal charter service regulations to try to
determine if Link Transit could respond to some of our local community's requests, especially
40 the requests that have been submitted by the Wenatchee Chamber and Downtown
Link Transit Board Meeting & Budget Workshop October 15, 2013
Page 3 of 5
• Associations. DeRock said he will bring back more information to the Board once he completes
his review and confirms items with the FTA.
7. BUDGET WORKSHOP
The regular monthly business of the board was completed and at 3:40 p.m. the meeting
continued as a workshop session to review the proposed 2014 budget. The purpose for the
workshop was to provide the Board an opportunity to review the draft 2014 budget proposal and
provide staff with direction to further develop and prepare a final budget proposal that will be
provided for the board and public to review during a budget hearing that will be scheduled in
November or December 2013.
Nick Covey began the workshop session with a PowerPoint presentation, which demonstrated
that the budget was developed using the Board approved 10-year sustainability plan as the
primary guideline. (AttachmentA to the minutes.)
Upon completion of the PowerPoint presentation, Covey continued leading the budget review by
distributing sets of worksheets. Set #1 addressed the following: (Attachment B to the minutes.)
• 2014 Revenue Projections
• 2014 Operating Budget Summary, which included System Performance Goals for 2014
(based on fully allocated costs)
• 2014 versus 2013 Expenditures by Category
• 2014 Capital Budget
Set #2 demonstrated the 10-Year Sustainability Plan, which consisted of two spreadsheets:
(Attachment C to the minutes.)
• • Operating Cashflow Projects for Years 2013 — 2023
• Capital Cashflow for Years 2013 — 2023
The Board carefully reviewed the 2014 Budget proposal and 10-Year Sustainability Plan, asking
questions about proposed expenditures and/or services. One concern that several board
members noted was the fact that the large road construction projects that have been happening
in Douglas County throughout the 2013 year will be completed. Subsequently, sales tax
revenues could potentially take a significant dip in 2014. Staff affirmed that the proposed 2014
budget was based on sales tax revenues increasing at only two -percent (2%), which was much
less than this year's (2013) actual "bubble" in sales tax growth. Everyone agreed that 2013 has
been the "exception" and not "the norm" for sales tax revenue growth.
Careful review and discussion also focused on the Capital Budget and long term vehicle
replacement plan. Maintenance & Computer Systems Manager Todd Daniel stated that Link
Transit's large bus fleet is aging and while the budget allows for vehicle "rehabs" to begin in
2014, a vehicle can only be "rehabbed" once. Thus, planning to replace aging buses with new
vehicles within the next ten years is essential. Another factor that must be considered is the
ever changing federal regulations on diesel fueled vehicles; and, even as new technologies
emerge the cost of vehicle replacement will continue to be a major component of the Capital
Budget.
Richard DeRock and Nick Covey both noted that this budget and the ten year plan consist of
maintaining what Link Transit currently owns and operates today. It does not allow or anticipate
any growth in service levels or expansion of fleet or facilities. The current 10 Year Sustainability
Plan fully funds Link Transit at the same service level that it operates today — over the next ten
•
Link Transit Board Meeting & Budget Workshop October 15, 2013
Page 4 of 5
• years based on the presumption that no major changes will occur. Nick Covey noted that over
the coming years as sales tax revenues come in - if they continue to come in positively - then
those revenues could be applied towards funding the Agency's long-term vehicle replacement
needs.
Ron Walter stated that it is important to carefully review and adjust up the amount of dollars that
are transferred each year to the Reserve Accounts to ensure that these accounts are
maintained at an appropriate level to each year's actual operational need. Walter noted the
importance of maintaining a disciplined attitude toward future growth or expansion of the system
to ensure its long term viability and sustainability. Walter stated that Link Transit's contingency
fund balance may be adequate to maintain a two month contingency at today's service levels.
However, operational costs increase each year; subsequently, it is important for the Board to
consider how any extra revenues that are earned over the next few years should be saved or
distributed between the operating and reserve accounts. Walter asked if, by resolution, the
Board could put on record the long term 10-Year Sustainability Plan that clearly demonstrates
the discipline of containing expenditures over time. Staff affirmed that such a resolution would
be developed for the Board to consider at their November 19, 2013 meeting.
Recapping the budget discussion, Covey noted the updates that he would make to the 2014
Budget proposal:
• Assumptive sales tax revenues for the upcoming years would remain low, keeping
between 2% and 3% projected growths.
• 2014 health insurance rates will be updated to actual cost, which staff had just received
before today's workshop.
• A spreadsheet demonstrating changes from the 2014 to the 2015 budget based on the
• retirement of two Operations Supervisors who were scheduled to retire during the 2014
year.
9
Board members thanked staff for their diligence to develop a solid budget proposal that
demonstrated restraint and fiscal planning for future years. Staff was directed to prepare a final
2014 budget proposal for public review and comment, and for potential board adoption, at a
public hearing that would be held as part of the regular board meeting on November 19, 2013.
8. ADJOURNMENT
As the meeting drew to a close, Chair Meyer said that he wished to begin the process for the
annual evaluation of the General Manager this month. The evaluation form was distributed and
board members were asked to return their completed forms using the attached addressed
envelope which would be gathered by the Clerk for the Board Chair to open and begin the
review process.
All business listed on the Agenda had been addressed and with no further business to conduct,
Chair Larry Meyer adjourned the meeting at 4:55 p.m.
Minutes Submitted by LA'2
Ma ' Alejandra ansen, Clerk of the Board
Link Transit Board Meeting & Budget Workshop October 15, 2013
Page 5 of 6
Dana Barnard
I rom: Trautmann, Cara <Cara.Trautmann@charter.com>
SSent: Wednesday, November 20, 2013 11:37 AM
Subject: Upcoming Changes - Charter Pricing
I Charter
Dear Community Leader,
Charter Communications is committed to improving the overall experience for customers in your community and is
delivering more value with new and existing products & services. This letter is to inform you about upcoming changes to
our customers' pricing and packaging.
We work hard to manage our business expenses, however, at this time we find it necessary to make adjustments to our
pricing that reflect cost changes in the marketplace. January customer statements will reflect adjustments made to
pricing for customers in your community. Customers currently on promotional pricing will not see a change in this
portion of their fee during the promotional period.
Effective on or after January 1, 2014:
• Broadcast TV Surcharge, which reflects charges assessed to Charter by broadcast TV stations, from $2.15 to
$3.50
• Limited Basic from $25.99 to $26.99
• Expanded Service from $39.00 to $38.00
• Limited Basic & Expanded Service from $64.99 to $64.99
• For Legacy service offerings, Interactive Guide Services from $5.99 to $6.99
• For New Product Pricing offerings, Set -top box, including Interactive Guide Services from $5.99 to $6.99
• Digital Home from $65.99 to $66.99
• Latino View from $5.00 to $6.99
• Latino Package from $34.99 to $39.99
As a reminder, if you are receiving franchise a fee payment from Charter, there is a quicker alternative to receiving
checks via the U.S. mail. You continue to have the option to sign up for an electronic direct payment process assuring
a more efficient and timely manner of receiving your funds. If you would like to opt into the electronic payment
process, please contact me at the number below. We believe this convenient method will be of significant value to
you.
If you have any questions about these or any other changes, please contact me at 360.258.5104 or
cara.trautmann@charter.com.
Sincerely,
Cara Trautmann
N
1 Charter
Cara Trautma#On' I Government Affairs - NW KMA 1360.258.5104
222 NE Park Plaza Drive, Suite 231, Vancouver, WA 98684
LFA NOTICE/RATElrEMP B •
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