HomeMy WebLinkAbout2018-04-10 - Douglas County - Interlocal Agreements GeneralThad L. Duvall, Auditor, Douglas County, WA. AFN # 3211665
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RETURN NAME & ADDRESS
Douglas County Transportation
140 19th Street NW, Suite A
East Wenatchee, WA 98802
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Document Title(s)
AMENDED AND RECOMPILED INTERLOCAL COOPERATION
AGREEMENT BETWEEN DOUGLAS COUNTY AND CITY OF
EAST WENATCHEE FOR STORM AND SURFACE WATER
MANAGEMENT
Reference Number(s) of related documents:
3097710, 3049436, 3159069
Grantor(s) (Last, First, and Middle Initial)
DOUGLAS COUNTY, EAST WENATCHEE
Grantee(s) (Last, First, and Middle Initial)
Douglas County
Legal Description (abbreviated form: i.e. lot, block, plat or section, township,
range, quarter/quarter)
N/A
Assessor's Property Tax Parcel/Account Number
N/A
Thad L. Duvall, Auditor, Douglas County, WA. AFN # 3211665
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1
Return Document to:
Douglas County TLS
2
490 19th Street N.W.
3
East Wenatchee, WA 98802
4
5
Document Title:
Amended and Recompiled Interlocal Cooperative Agreement
6
Related documents:
Interlocal Cooperation Agreement, AFN 3097710, Amendment to
7
Interlocal Cooperation Agreement, Second Amendment to Interlocal
8
Cooperation Agreement, AFN 3049436, Amended and Recompiled Interlocal
9
Cooperation Agreement, AFN 3159069.
10
Grantor:
Douglas County
11
Grantee:
City of East Wenatchee
12
Legal Description:
N/A
13
Parcel Number(s):
N/A
14
15
16 AMENDED AND RECOMPILED INTERLOCAL COOPERATION AGREEMENT
17 BETWEEN DOUGLAS COUNTY AND CITY OF EAST WENATCHEE
18 FOR STORM AND SURFACE WATER MANAGEMENT
19
20 This Agreement is made by and between Douglas County and the City of East
21 Wenatchee.
22
23 WHEREAS, the public health, welfare, and safety of the residents and property
24 owners within the City and the unincorporated areas of the County require the control
25 and conveyance of storm and surface water runoff within and around the Greater East
26 Wenatchee area;
27
28 WHEREAS, the County and City have adopted plans to address stormwater
29 within and around the Greater East Wenatchee Area to address recurring flooding and
30 stormwater system planning and maintenance;
31 WHEREAS, several public meetings were conducted and a Citizens Advisory
32 Committee created to obtain public input, resulting in the conclusion that a Storm Water
33 Utility should be created to provide a stable funding mechanism to pay for
34 improvements to the drainage system, as well as for the operation and maintenance;
35
36 WHEREAS, the Parties have previously entered into an Interlocal Cooperation
37 Agreement for the purpose of controlling, regulating, and managing storm and surface
38 water runoff within and around the greater East Wenatchee area; together with an
39 Amendment to the Interlocal Cooperation Agreement, and a Second Amendment to the
40 Interlocal Cooperation Agreement and an Amendment and Recompilation of the
41 Agreement;
42
43 WHEREAS, the County's Board of Commissioners authorized the execution of
44 this Agreement;
45
46 WHEREAS, the City's Council authorized the execution of this Agreement;
47
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1 WHEREAS, the Parties enter into this interlocal cooperation agreement under
2 the authority of RCW Chapter 39.34 to provide for the joint and/or cooperative exercise
3 of their powers, privileges and authorities to manage storm and surface waters and to
4 amend and recompile their Interlocal Cooperation Agreement.
5
6 NOW, THEREFORE, in consideration of the premises and promises, terms and
7 conditions set forth below, it is hereby agreed as follows:
8
9 ARTICLE I
10 DEFINITIONS
11
12 "Agreement" means this agreement and all amendments, modifications, and
13 clarifications.
14
15 "Board" or "Board of Commissioners" means the legislative authority of the County.
16
17 "City" means the City of East Wenatchee, Washington, a municipal corporation
18 organized and existing under the laws of the State of Washington, and particularly
19 those set forth at RCW Title 35A.
20
21 "CIP" means the storm and surface water management Capital Improvement Plan
22 adopted by the City and County.
23
24 "City Council" means the legislative authority of the City.
25
26 "CFHMP" means the 1995 Douglas County Comprehensive Flood Hazard
27 Management Plan, as may be amended, adopted by the City and County pursuant to
28 RCW Chapter 86.26.
29 "County" means Douglas County, Washington, a political subdivision organized and
3o existing under the Washington State Constitution and the laws of the State of
31 Washington, and particularly those set forth at RCW Title 36"
32
33 "Facilities" means the publicly owned storm and surface water conveyance, control,
34 and/or detention/infiltration facilities and improvements, together with applicable lands
35 and easements.
36
37 "Improvements" means those improvements to or comprising facilities.
38
39 "Management Team" means the committee established by this Agreement to
40 administer Utility operations and to make recommendations for policies, procedures
41 and budgets to the Parties, and that is composed of one County Commissioner, one
42 member of the City Council, two additional designated representatives from the City,
43 and two additional designated representatives from the County. A quorum shall be a
44 minimum of four members, which shall include one member of the City Council and one
45 member of the County Commission.
46
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1 "New Capital Facilities and Improvements" are facilities and improvements that are
2 publicly owned and/or operated which address stormwater quantity and/or quality. This
3 may include but not be limited to stormwater collection, conveyance, treatment,
4 retention/detention facilities and capital projects related to pollution prevention and
5 good housekeeping for municipal operations.
6
7 "NPDES Municipal Permit" or "National Pollutant Discharge Elimination System
8 (NPDES) Stormwater Discharge Permit" shall mean a permit issued by EPA (or by a
9 State under authority delegated pursuant to 33 USC § 1342(b)) that authorizes the
10 discharge of pollutants to waters of the United States or State, whether the permit is
11 applicable to a person or group, or on a general area -wide basis.
12
13 "Obligation" or "Obligations" means those loans, bonds, warrants, or other
14 indebtedness issued or obtained to own, operate or maintain facilities and
15 Improvements.
16
17 "Party" or "Parties" means, individually or collectively, the City and the County.
18
19 "Rates" means rates, fees and charges for service fixed and imposed pursuant to
20 RCW Chapters 36.89 or 35.67.
21
22 "Service" means storm and surface water control and disposal facilities,
23 improvements, operations and maintenance, including all related planning and
24 administration furnished pursuant to this Agreement within the service area.
25
26 "Service Area" means that portion of the Greater East Wenatchee Area that is the
27 Utility, as recommended by the Management Team and jointly approved by the
28 independent action of the City and County.
29 "Utility" or "Utilities" means the Storm Water Utility to be created by each of the
30 Parties pursuant to this Agreement.
31
32 ARTICLE II
33 PURPOSE
34
35 2.01 The purpose of this Agreement is to jointly and/or cooperatively implement the
36 recommendations and achieve the goals of the adopted Comprehensive Plans through
37 each Party's independent creation of a Utility and the sharing of improvements,
38 maintenance, operation and revenues.
39
40 2.02 Except for existing claims, projects or other matters approved under the previous
41 Interlocal Agreements, this Agreement amends, supersedes and recompiles the
42 Parties' Interlocal Cooperation Agreement executed in April 2012, AFN 3159069. This
43 Agreement does not amend or supersede Interlocal Cooperation Agreements between
44 the Parties jointly or independently executed with the Douglas County Treasurer for
45 storm water utility billing and collection.
46
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1 2.03 This Agreement is limited to the above purposes and does not apply to any other
2 power, privilege or authority which may be exercised by the Parties.
3
4 ARTICLE III
5 OWNERSHIP
6
7 3.01 The City and County shall own the facilities within their respective jurisdictions.
8 Ownership shall transfer upon changes in the City's boundaries. As an exception,
9 facilities located in one jurisdication, serving infrastructure located in the other
to jursidication shall remain under ownership of the jurisdiction utilizing the facility.
11 Ownership and maintenance of facilities serving both jursidictions shall be identified as
12 joint facilities at the time of design and construction. Ownership and provisions for joint
13 operation and maintenance shall be outlined within a recorded operation and
14 maintenance agreement. The joint operation and maintenance agreement shall remain
15 in effect until the facility is located entirely within the jurisdiction served at which time
16 ownership shall transfer.
17
18 3.02 The City and County may jointly own equipment and other personal property
19 purchased by the Storm Water Utility. The City and County may also independently
20 own equipment purchased for the sole use of the City and/or County.
21
22 ARTICLE IV
23 DUTIES OF THE PARTIES
24
25 In addition to each Party's duty to perform each and every agreement, term and
26 condition of this Agreement, the Parties agree as follows:
27
28 4.01 Creation of Utilities.
29
30 A. The City shall create a Storm Water Utility pursuant to RCW Chapter 35.67.
31
32 B. The County shall create a Storm Water Utility pursuant to RCW Chapter
33 36.89.
34
35 4.02 Establishing Utility Rates, Fees and Charges
36
37 A. The Utility annual services charge shall be adopted independently by the
38 City and the County, shall be identical, and shall be fair, equitable and uniform
39 throughout the Service Area. The City and County may opt to independently
40 adopt fees and charges for cost recovery for operations required by the NPDES
41 Municipal Permits, including but not limited to plan review, inspections and
42 enforcement actions associated with new and redevelopment activities and illicit
43 discharages.
44
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1 B. The annual service charge shall be developed by the Management Team
2 using a public participation process, with recommendations submitted to the City
3 Council and the Board of Commissioners for review and action.
4
5 C. Neither Party shall levy, impose or assess any tax, license fee or franchise
6 fee upon or against the Utility, its facilities, its revenue, or its Utility rates, fees or
7 charges.
8
9 4.03 Policies and Standards. Each Party shall, to the extent practical, adopt identical
10 policies and standards for storm and surface water management.
11
12 ARTICLE V
13 FINANCING AND BUDGETS
14
15 5.01 Financing. The funding for maintenance, operations, improvements and new
16 facilities, compliance with applicable state and federal stormwater regulations, as well
17 as obligations, shall be based upon a utility approach. Improvements and facilities shall
18 be initially funded by bligations payable through Utility revenues generated by service
19 fees and system development charges. All fees and charges against properties shall
20 be assessed on a fair, equitable and uniform basis through the Service Area.
21
22 5.02 Joint Utility Fund. All revenues of each Utility shall be held in a joint fund by the
23 Douglas County Treasurer, designated as "Joint Operating Fund of the Greater East
24 Wenatchee Storm Water Utilities." The joint fund shall be comprised of the following
25 subfunds:
26
27 A. Administration Fund
28 Revenue from the annual service charges collected are to be deposited into the
29 Administration Fund.
30
31 Expenditures from the Adminstration Fund include costs associated with billing,
32 budgeting, planning, meeting preparation, ordinance revisions related to general
33 utility functions and existing debt redemption. A minimum $125,000
34 beginning/ending balance shall be maintained. As outlined below, funds are
35 allocated from the Administration Fund to the Joint Capital Fund, Disaster
36 Reserve Fund, the City Stormwater Program Management Fund, and the
37 County Stormwater Program Management Fund. Revenue in excess of the
38 $125,000 budgeted beginning/ending balance shall be allocated to the City and
39 County Stormwater Program Management Funds on a pro-rata share basis,
40 based upon revenue generation within the City and County.
41
42 B. Joint Capital Fund
43 Revenue: Minimum annual allocation of $100,000 from the Adminstration Fund.
44 The Management Team may recommend additional funds for allocation during
45 the budget process to support and plan for joint capital improvments as identified
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1 within an adopted Joint Capital Improvement Plan. Other revenue may include
2 project specific grants.
4 Expenditures: Funds are to be utilized for planning, design and construction of
5 capital projects identified within an adopted Joint Capital Improvement Plan.
7 C. City Stormwater Program Management Fund
8
9 Revenue: Annual allocation of $10 per ESU within the City plus the distribution of
10 the service charge paid by the City for City Streets. The amount of the
11 distribution will vary annually based upon ESUs and infrastructure, specifically
12 streets for which the City is assessed the Utility service charge.
13
14 Expenditures: The City Stormwater Program Management Fund expenditures
15 are at the sole discretion of the City. This subfund, upon allocation, is no longer
16 considered joint funds. Although maintained within the Joint Utility Account, the
17 expenditures are managed separately. In addition to funding Stormwater
18 Program Elements required to maintain compliance with the NPDES Municipal
19 Stormwater Permit, funds may be utilized for Capital Projects to acquire,
20 construct, replace or maintain infrastructure and/or equipment for the collection,
21 conveyance, disposal and/or treatment of stormwater to address flooding, water
22 quality or general stormwater system development and maintenance, at the
23 discretion of the City. The City is soley responsible for NPDES Permit
24 Compliance within the City.
25
26 D. County Stormwater Program Management Fund
27
28 Revenue: Annual allocation of $10 per ESU within the County plus the
29 distribution of the service charge paid by the County for County Roads. The
30 amount of the distribution will vary annually based upon ESUs and infrastructure,
31 specifically roads for which the County is assessed the Utility service charge.
32
33 Expenditures: The County Stormwater Program Management Fund expenditures
34 are at the sole discretion of the County. This subfund, upon allocation, is no
35 longer considered joint funds. Although maintained within the Joint Utility
36 Account, the expenditures are managed separately. In addition to funding
37 Stormwater Program Elements required to maintain compliance with the NPDES
38 Municipal Stormwater Permit, funds may be utilized for Capital Project to acquire,
39 construct, replace or maintain infrastructure and/or equipment for the collection,
40 conveyance, disposal and/or treatment of stormwater to address flooding, water
41 quality or general stormwater system development and maintenance, at the
42 discretion of the County. The County is soley responsible for NPDES Permit
43 Compliance in the unincorporated areas of the Greater East Wenatchee area.
44
45 E. Disaster Reserve Fund as established in 2000 and amended in 2005 is to be
46 eliminated. The ending 2018 fund balance shall be distributed into the the City
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1 and County Stormwater Program Management Funds. It shall then be the
2 responsibility of the City and County to manage and maintain separate
3 Emergency/Disaster Reserve funds for their respective jurisdictions. The Utility
4 will not provide additional emergency funding to either jurisdication.
6 F. ER&R Fund (Vactor #220)
8 Revenue: Revenue is associated with rental rates established annually by
9 Douglas County based upon usage of the equipment, estimated maintenance,
10 replacement cost and life of the equipment. Revenue is generated by usage by
11 both the City and County within the Utility Service Area and additional usage by
12 the City and County for non -utility activities. Utility equipment shall not be utilized
13 by or for other agencies/service providers.
14
15 Expenditures: Expenditures include maintenance and repair, insurance and
16 capital purchases associated with the equipment (lights, nozzles). Douglas
17 County shall maintain the Vactor and facilitate purchase of capital improvements
18 for the Vactor. Expenditures in excess of $5,000 require approval of the
19 Management Team
20
21 5.03 Budget. The Management Team shall prepare and submit all budget requests
22 and amendments as may be required to provide services, including compliance with
23 NPDES regulations and other stormwater mandates, and to construct and maintain
24 facilities and improvements. All budget requests and amendments shall be submitted
25 to the City Council and the Board of Commissioners. No budget request or amendment
26 shall be effective until independently approved by the City Council and the Board of
27 Commissioners. Neither party shall unreasonably deny or delay the approval of the
28 budget or any amendments thereto.
29
30 5.04 Accounting. All accounting and financial transactions related to the Greater East
31 Wenatchee Storm Water Utilities' funds shall be conducted through the County. All
32 accounting procedures shall be in accordance with applicable federal and state
33 requirements, state law, and methods prescribed by the Washington State Budgeting,
34 Accounting and Reporting System (BARS).
35
36 ARTICLE VI
37 ADMINISTRATION
38
39 6.01 Executive Authority
40
41 A. The Management Team shall have the full power and authority to operate
42 and manage the Utility in accordance with the terms and provisions of this
43 Agreement, the jointly approved budgets, and the respective ordinances of the
44 City and the County.
45
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1 B. The County shall, pursuant to the City and County approved policies,
2 standards and budgets have the full power and authority to bill and collect
3 service fees and charges, as well as to enforce and foreclose statutory liens,
4 against all properties within the entire Service Area, including those properties
5 within the City.
6
C. To the extent consistent with and authorized by the City and County
8 approved policies, standards and budgets, the City hereby irrevocably authorizes
9 and directs the County to act for it and on its behalf, as well as on behalf of the
10 County and the Utility, in the creation and or issuance of obligations for the
11 benefit of the Utility. All such obligations shall be valid and binding against the
12 County in accordance with their terms. The lender, underwriter, holder or owner
13 of any Obligation shall not be required to inquire into any procedure or
14 proceeding by the Utility or by the City to determine the County's authority. The
15 City guarantees payment to the County of the City's proportionate share of all
16 Obligations of the Utility.
17
18 6.02 Limitations on Executive Authority.
19
20 A. No Obligation may be incurred, issued or assumed for or on behalf of the
21 Parties or the Utility that is payable from a source other than the revenues and
22 assets of the Utility.
23
24 B. The exercise of any police power relating to the enforcement of storm and
25 surface water control and disposal functions and facilities within each Party's
26 jurisdiction by way of criminal proceedings or civil penalty is reserved to that
27 Party.
28
29 C. All decisions of a Land Use or Regulatory nature within a Party's respective
30 jurisdiction shall continue to be that Party's responsibility.
31 6.03 Administration by Management Team.
32
33 A. The Parties hereby form and establish a management team to administer
34 operations and to make recommendations for policies, procedures and
35 budgets to the Parties.
36
37 B. The Management Team shall have the following duties and responsibilities,
38 together with those additional duties and responsibilities assigned to the
39 Management Team by the Parties:
40
41 1. Coordinate to ensure consistent operation and maintenance of
42 stormwater facilities within the Service Area.
43
44 2. Recommend coordinated development standards and schedules to
45 ensure proper operation and maintenance of conveyance and storage
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1 facilities; Implementation of such standards and schedules shall be
2 accomplished independently as directed by each entities elected body.
3
4 3. Coordinate for consistent implementation of stormwater program
5 measures, including development and implementation of codes and
6 procedures to meeting requirements of each jurisdiction's NPDES Phase
7 II Municipal Stormwater Permit.
8
9 4. Prepare and provide a recommendedannual budget for review and
10 approval of the Board of Commissioners and the City Council.
11
12 5. Coordinate preparation and submittal of an operations report to the Board
13 of Commissioners and City Council, prior to April 30 each year The report
14 shall outline stormwater utility activities with respect to administration,
15 planning, capital improvements, facility maintenance and repair, and
16 NPDES Municipal Permit compliance.
17
i8 6. Coordinate preparation and maintenance, as part of the annual budgeting
19 process, a six -year CIPs (joint, City and County) which prioritizeand
20 schedule construction of new facilities. The joint CIP shall be provided for
21 review and adoption by the City Council and the Board of Commissioners.
22
23 7. Coordinate investigation and pursuit of all available funding sources for
24 projects identified in the CIPs.
25
26 8. To coordinate receipt, review and investigation of citizen inquiries related
27 to operations and maintenance of facilities and rate assessments. Tort
28 claims shall be addressed by appropriate legal counsel for the City or
29 County with input and assistance from the Management Team.
30
31 6.04 Records. Each Party shall have access to all Utility facility, operation and
32 maintenance records and other related documentation of the other Party. Records and
33 other documentation for construction of new facilities and improvements shall be
34 compiled and maintained by the City and County, under the direction of the
35 Management Team.
36
37 ARTICLE VII
38 CAPITAL FACILITIES AND IMPROVEMENTS
39
40 7.01 Design, Construction and Maintenance Standards. The City and the County
41 shall jointly develop design, construction, and maintenance standards, which shall be
42 applied to all facilities and improvements in the service area, whether public or private,
43 and shall be consistent with adopted plans. Public facilities and improvements outside
44 the service area may be constructed and/or maintained if such facilities and
45 improvements benefit either one or both Utilities. Each Party shall be responsible for
46 the review and approval of such facilities and improvements within its respective
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1 jurisdiction. A Party may permit facilities or improvements on public property or
2 dedicated right-of-way and may accept ownership of such facilities and improvements
3 only if all design and construction standards are strictly met.
4
5 7.02 New Public Facilities and Improvements. New capital facilities and
6 improvements shall be constructed under the supervision and/or direction of the project
7 lead as designated by the Management Team and in accordance with the schedule
8 developed by the Management Team and approved independently by the City Council
9 and the Board of County Commissioners.
10
11 7.03 New Development Impacts. The City and the County shall agree upon and each
12 independently adopt identical policies and standards that require that all new
13 development, as a condition of permit approval, to contribute its fair share of the cost of
14 facilities required to support such development. Contributions by new development shall
15 be in the form of system development charges paid to the Utility, developer constructed
16 improvements, or such other forms as may be agreed upon by the Parties.
17
18 7.04 Existing Facilities. The City and County acknowledge the relationship between
19 street/road maintenance and maintenance of Utility facilities. The Utility shall maintain
20 all publicly owned drainage, conveyance, storage, detention and infiltration facilities
21 within the service area.
22
23 ARTICLE VIII
24 DIRECT SUPPORT REIMBURSEMENT AND THIRD PARTY CONTRACTS
25
26 8.01 Reimbursement to Parties. The Utility shall reimburse the City and the County
27 for all support supplied to the Utility. Such support shall include administrative and
28 accounting staff, professional staff, maintenance staff and equipment. Personnel costs
29 shall be reimbursed based upon actual hourly rate and benefits costs. Equipment costs
30 shall be reimbursed based upon a schedule agreed upon by the Parties.
31
32 8.02 Third Party Contracts. The County may, as permitted by law, enter into
33 separate agreements with third parties to perform work for or furnish professional
34 services to the Utility.
35
36 8.03 Emergencies. Emergency response due to flooding shall be consistent with the
37 plan developed by the Management Team and each Party shall be reimbursed by the
38 Utility for the personnel and equipment used in such response
39
40 ARTICLE IX
41 COMMENCEMENT AND TERMINATION OF AGREEMENT
42
43 9.01 Commencement. This Agreement shall commence pursuant to Section 14.06.
44
45 9.02 Termination. This Agreement may be terminated, in whole or in part, at any time
46 by the joint action of the legislative authorities of the Parties. This Agreement may be
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1 unilaterally terminated by one of the Parties, without cause, so long as there are no
2 outstanding facilities obligations assumed or incurred by the Utilities or the Parties, by
3 providing prior written notice to the other party not less than six (6) months before the
4 end of the current fiscal year.
6 9.03 Disposition of Assets and Liabilities. Upon termination by one or both
7 Parties, the facilities located within the City shall be transferred to the City and the
8 facilities located within the unincorporated areas of the County shall be transferred to
9 the County. Equipment and other personal property of the Storm Water Utility and/or
10 the net proceeds from the sale of such assets, shall be distributed to the parties
11 proportionately to their contributions to the Storm Water Utility. In lieu of distribution,
12 the Parties may agree for the Parties' purchase of equipment or other personal property
13 and payment to the other party. Each Party shall assume and pay the obligations
14 remaining due for the facilities, equipment and personal property it receives upon
15 dissolution and thereafter indemnify and hold the other Party harmless therefrom.
16 ARTICLE X
17 INSURANCE
18
19 10.01 Insurance Required. Each Party shall obtain and maintain insurance policies
20 having minimum coverage of Two Million Dollars ($2,000,000) to meet all legal and
21 social responsibilities for creation of the Utilities and ownership, maintenance and
22 operation of the facilities, including without limitation, general liability, public liability,
23 professional liability, errors and omissions, officers and directors' liability, property
24 insurance, and workmen's compensation coverage.
25
26 10.02 Policy Provisions. Limits, deductibles, stop loss provisions, and/or exclusions
27 contained in such policies must be approved by the Parties.
28
29 10.03 Additional Insureds and Certificate. If permitted by its insurers, each Party, its
30 departments, elected and appointed officials, employees and agents, shall be named
31 as additional insureds on such policies. Such policies of insurance shall not be subject
32 to reduction in coverage or cancellation without thirty (30) days prior written notice to
33 the Parties. Each Party provide Certificates of Insurance to the other Party as evidence
34 of its compliance with these insurance requirements.
35
36 ARTICLE XI
37 CLAIMS AND INDEMNITY
38
39 11.01 Claims. Claims shall be received, reviewed and investigated by the
40 Management Team. Uninsured or underinsured claims directly and solely related to
41 facilities shall be paid from Utility funds and/or revenues.
42
43 11.02 Indemnity. To the extent of its comparative liability, each Party shall indemnify,
44 defend and hold the other Party, its departments, elected and appointed officials,
45 employees, and agents, harmless from and against any and all claims, damages,
46 losses and expenses, including attorney's fees, for any bodily injury, sickness, disease,
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1 or death, or any damage to or destruction of property, including the loss of use resulting
2 therefrom, which are alleged or proven to be caused in whole or in part by a negligent
3 act or omission of the Party, its officers, directors, and employees with respect to the
4 performance of this Agreement, the creation of the Utilities, and the ownership,
5 operation and maintenance of the facilities.
6
7 11.03 Waiver of Subrogation. Each Party waives indemnity and claims for
8 contribution against the other Party to the extent that its damages, losses or expenses
9 are paid by insurance and such policy permits waiver.
10
11 ARTICLE XII
12 PERFORMANCE OF AGREEMENT
13
14 12.01 Compliance with All Laws. Each Party shall comply with all federal, state and
15 local laws, rules, regulations and ordinances applicable to the performance of this
16 Agreement, including without limitation all those pertaining to wages and hours,
17 confidentiality, disabilities and discrimination.
18
19 12.02 Maintenance and Audit of Records. Each Party shall maintain books, records,
20 documents and other materials relevant to its performance under this Agreement which
21 sufficiently and accurately reflect any and all direct and indirect costs and expenses
22 incurred or paid in the course of performing this Agreement. These records shall be
23 subject to inspection, review and audit by either Party or its designee, the Washington
24 State Auditor's Office, and authorized federal agencies. Each Party shall retain all such
25 books, records, documents and other materials for seven (7) years after the record was
26 created or as required by project funding guidelines whichever is greater.
27
28 12.03 On -Site Inspections. Each Party or its designee may evaluate the performance
29 of this Agreement through on -site inspection to determine whether performance is in
30 compliance with the standards set forth in this Agreement, and in compliance with
31 federal, state and local laws, rules, regulations and ordinances, and in compliance with
32 jointly adopted policies and procedures of the Utilities.
33
34 12.04 Rights in Data and Work Product. Unless otherwise agreed upon by the
35 parties in writing, all data, reports, documents, pamphlets, advertisements, books,
36 magazines, surveys, studies, computer programs, films, tapes, sound reproductions,
37 educational courses and materials and other work product which originates from the
38 performance of this Agreement shall be "works for hire' and shall be the joint property of
39 the Parties.
40
41 12.05 Improper Influence. Each Party agrees, warrants and represents that it did not
42 and will not employ, retain or contract with any person or entity on a contingent
43 compensation basis for the purpose of seeking, obtaining, maintaining or extending this
44 Agreement. Each party agrees, warrants and represents that no gratuity whatsoever
45 has been or will be offered or conferred with a view towards obtaining, maintaining or
46 extending this Agreement.
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1
2 12.06 Conflict of Interest. The elected and appointed officials and employees of the
3 Parties shall not have any personal financial interest, direct or indirect, which gives rise
4 to a conflict of interest as defined by Washington law.
5
6 ARTICLE XIII
7 DISPUTES
8
9 13.01 Time. Time is of the essence of this Agreement.
10
11 13.02 Conflict. In the event of conflict among the terms and conditions of this
12 Agreement and federal, state or local law, the inconsistency shall be resolved by giving
13 precedence of interpretation in the following order:
14
15 1. Applicable federal case law, statutes and regulations; then
16 2. Applicable Washington case law, statutes and regulations; then
17 3. The terms and conditions of this Agreement; then
18 4. The terms and conditions of the each Utility established pursuant to this
19 Agreement; then
20 5. The policies and procedures jointly approved by the Parties for operation and
21 maintenance of the Utilities.
22
23 13.03 Waiver Limited. A waiver of any term or condition of this Agreement must be in
24 writing and signed by the waiving Party. Any express or implied waiver of a term or
25 condition of this Agreement shall apply only to the specific act, occurrence or omission
26 and shall not constitute a waiver as to any other term or condition or future act,
27 occurrence or omission.
28
29 13.04 Compliance Review Process and Corrective Action. In the event of non-
30 compliance with any term or condition of this Agreement, a Party may provide written
31 notice of non-compliance to the other Party. The non -compliant Party shall have thirty
32 (30) days from receipt of such written notice to implement fully corrective action and to
33 provide adequate assurances of continuing future compliance: provided, that the non-
34 compliant party shall have only three (3) business days to demonstrate its compliance
35 and to provide adequate assurances if the non-compliance presents a clear and
36 imminent danger to the health and well-being of the public, a clear violation of federal or
37 state laws, rules or regulations specifically found to be of imminent concern and
38 requiring immediate corrective action, a breach of the time limits for performance under
39 this Agreement, or an imminent loss of federal or state funding of this Agreement.
40
41 13.05 Dispute Resolution.
42
43 A. Informal Mediation. Disputes regarding the ownership, operation and
44 maintenance of the facilities and jointly adopted policies and procedures, other
45 than those which relate to non-compliance requiring only a three (3) day notice
46 pursuant to the preceding subparagraph, shall be informally mediated by a panel
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1 comprised of a City elected official appointed by the City Council, a member of
2 the County's Board of Commissioners appointed by the Board, and a third
3 person agreed upon by the two. The panel shall attempt to resolve the dispute
4 between the Parties through discussion and negotiation among the panel
5 members. There shall be no presentation of evidence or argument to the panel.
6 Decisions of the panel shall not be binding on the Parties and all discussions and
7 negotiations among the panel members shall remain confidential and privileged.
9 B. Arbitration. In the event that informal mediation does not resolve a dispute
10 between the Parties, the dispute shall be submitted to arbitration pursuant to
11 RCW Chapter 7.04, et. seq., except as hereafter modified. Such arbitration shall
12 be before one disinterested arbitrator, if one can be agreed upon by the parties.
13 If one arbitrator cannot be agreed upon, then the City shall appoint one
14 arbitrator, the County shall appoint one arbitrator, and a third arbitrator shall be
15 appointed by the two. If all arbitrators have not been appointed within ten (10)
16 days after a written notice of demand for arbitration is served by one party to the
17 other, then either party may apply to the Chelan County Superior Court, upon not
18 less than five (5) days written notice to the other, for appointment of the
19 necessary arbitrators remaining to be appointed. The judicial appointment(s)
20 shall be final, conclusive and binding. The controversy shall be resolved and
21 determined in accordance with the laws of Washington as applied to the facts
22 found. Remedies, both equitable and legal, including injunctive relief, may be
23 granted. The decision shall be final, conclusive and binding on the Parties and a
24 judgment confirming the decision may be entered in the Chelan County Superior
25 Court.
26
27 13.06 Attorney's Fees. If any legal action or other proceeding is brought for the
28 enforcement of this Agreement, or because of an alleged dispute, breach, default, or
29 misrepresentation in connection with any of the provisions of this Agreement, each
30 party shall pay its own attorney's fees and other costs incurred in that action, arbitration
31 or proceeding.
32
33 13.07 Governing Law and Venue. This Agreement shall be governed exclusively by
34 the laws of the State of Washington. The Chelan County Superior Court shall be the
35 sole proper venue for any and all suits brought to enforce or interpret the provisions of
36 this Agreement.
37
38 ARTICLE XIV
39 GENERAL PROVISIONS
40
41 14.01 Assignment. The Parties may not assign any rights or delegate any duties
42 under this Agreement, whether by assignment, subcontract or other means. Any such
43 attempted assignment or delegation shall be void and shall constitute a material breach
44 of this Agreement.
45
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1 14.02 Entire Agreement. This Agreement constitutes the entire agreement between
2 the Parties. There are no understandings or agreements between parties other than
3 those set forth in this Agreement and in the appendices. No other statement,
4 representation or promise has been made to induce the Parties to enter into this
5 Agreement.
6
7 14.03 Modification. This Agreement may not be amended, supplemented or
8 otherwise modified unless expressly set forth in a written agreement signed by the
9 Parties and adopted by resolution of each Parties' legislative authority.
10
11 14.04 Invalid Provisions. If any portion of this Agreement, or its application to any
12 person or circumstances, is held or determined to be invalid, such holding or
13 determination shall not affect the validity or enforceability of any other term or provision
14 and the application of this Agreement to other persons or circumstances shall not be
15 affected.
16
17 14.05 Counterparts. This Agreement may be executed by the parties using duplicate
18 counterparts.
19
20 14.06 Filing and State Approval. Pursuant to RCW 39.34.040, this Agreement shall
21 be filed with the County Auditor and the City Clerk prior to its entry into force. To the
22 extent any state officer or agency has control over the services or facilities which may
23 be the subject of this Agreement, then this Agreement shall be submitted to such state
24 officer or agency for approval pursuant to RCW 39.34.050 prior to its entry into force.
25
26 Adopted: A ,p?6k ►o , Zo► 13
27
28
29
30
31 ATTEST:
333
2
34
35 City Clerk
36
37
38 AP OVED A FORM:
39
40
41
42 City Attorn
43
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1
2 Adopted: M 0461
3
4
5
6 �\SS\ONERs CO
8
9 SEAL
10 0
11
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13 COUNV
14
15 41erkof
16
17 11 6A0
18 r
19 �-oard
20
21
22
23 APPROVED AS TO FORMC 1"
24
25
26
27 Prodecuting Attorney
DOUGLAS COUNTY
BOARD OF COUNTY COMMISSIONERS
Sutto
''C/✓vli�il
KyViyYbu�g, Vice Chair
Steve Jenkin"ember
INTERLOCAL COOPERATION AGREEMENT AND SURFACE WATER MANAGEMENT - 16
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