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Home My WebLink About06-02-2014 DRAFT Page 1 of 3 Council Chambers 110 East Third May 19, 2014 City Council Members Present by Roll Call: Dick Butner, Jan Schuette, Marilyn Oertle, Chris Raezer, Debora Nelson, Jesica Stickles, and Randy Tendering Council Members Absent: None City Staff Present: Allen Johnson, Kristin Banfield, Tom Cooper, Kris Wallace, Bill Blake, Jim Chase, Troy Davis, Jim Kelly, Deana Dean, and Steve Peiffle – City Attorney Also Known to be Present: Bruce Angell, Christopher St. John, and Jeremy Reweldt Mayor Tolbert called the meeting to order at 7:00 p.m. and the pledge of allegiance followed. APPROVAL OF THE AGENDA Chris Raezer moved to approve the Agenda. Marilyn Oertle seconded the motion which passed with a unanimous vote. INTRODUCTIONS OF SPECIAL GUESTS AND PRESENTATIONS PROCLAMATIONS Public Works Week: Public Works Director Jim Kelly spoke asking council to declare May 18-24, 2014 as National Public Works Week. EMS Week: Deputy Chief Tom Cooper spoke asking council to declare May 19-24, 2014 as Emergency Medical Services Week. PUBLIC COMMENT Jeremy Reweldt spoke regarding the storm water easement runoff on his property at 825 Portage Street. CONSENT AGENDA Chris Raezer moved and Marilyn Oertle seconded the motion to approve the Consent Agenda which was unanimously carried to approve the following Consent Agenda items: 1. Minutes of the May 5 and 12, Council meetings 2. Accounts Payable: EFT Payments & Claims Checks #81812 through #81912 dated May 6, 2014 through May 19, 2014 in the amount of $1,155,871.45. Minutes of the Arlington City Council Meeting Minutes of the City of Arlington City Council Meeting May 19, 2014 Page 2 of 3 PUBLIC HEARING None. NEW BUSINESS Interlocal with Community Transit for Art at Smokey Point Transit Center Assistant City Administrator Kristin Banfield presented the proposed Interlocal Agreement between the City of Arlington and Community Transit for the commissioning of art for the new Community Transit Transfer Center in Smokey Point. Brief discussion followed. Marilyn Oertle moved and Debora Nelson seconded the motion to approve the interlocal agreement with Community Transit to provide selection and management of an artwork for the new Transit Center at Smokey Point. The motion was approved by a unanimous vote. Interlocal Agreement with Snohomish County Department of Emergency Management City Administrator Allen Johnson presented the proposed two year Interlocal Agreement between the City of Arlington and Snohomish County Department of Emergency Management. Jesica Stickles moved and Randy Tendering seconded the motion to approve the interlocal agreement for DEM services. The motion was approved by a unanimous vote. Ordinance to Extend Impact Fee Waiver for Business Change of Use Kristin Banfield presented the proposed ordinance which extends the City’s Ordinance 2012-0006 from April 2, 2012 suspending transportation impact fees and utility connection charges created when a commercial building changes use. Chris Raezer moved and Jesica Stickles seconded the motion to approve the City of Arlington Ordinance to extend Impact Fee Waiver for Business Change of Use through December 31, 2015. The motion was approved by a unanimous vote. Surplus Items from PW M&O Kristin Banfield spoke to the proposal to surplus items from Public Works Maintenance & Operations. Randy Tendering moved and Chris Raezer seconded the motion to approve the Resolution for Declaring Property as Surplus. The motion was approved by a unanimous vote. Ordinance Adopting new Sign Code City Planner Troy Davis proposed council adopt the revised sign code. Discussion followed. Marilyn Oertle moved and Chris Raezer seconded the motion to approve the revised sign code and direct staff to prepare the sign code ordinance, including any minor related corrections to the City’s Development regulations for approval on June 2, 2014. The motion was carried with six votes in the affirmative and one in the negative. Katy Isaksen Task Order for the Financial Portion of the Water/Sewer Comprehensive Plans Public Works Director Jim Kelly presented the proposed task orders under the current Professional Services Agreement with Katy Isaksen & Associates. Brief discussion followed. Dick Butner moved and Marilyn Oertle seconded the motion to approve Task Orders #13 & #14 with Katy Isaksen & Associates for financial services to support the Water and Sewer Comprehensive Plans and authorize the Public Works Director to sign the task orders, pending final review by the City Attorney. The motion was approved by a unanimous vote. Minutes of the City of Arlington City Council Meeting May 19, 2014 Page 3 of 3 Authority to Bid Backwash to the Wetland Project Jim Kelly presented the request for authority to bid backwash to the wetland project and answered council questions. Dick Butner moved and Randy Tendering seconded the motion to authorize to bid the Water Treatment Plant Backwash to Wetland Project, pending final review by the City Attorney. The motion was approved by a unanimous vote. Smokey Point Low Impact Design Professional Service Agreement with Herrera Storm Water & Natural Resources Manager Bill Blake and City Planner Troy Davis presented the proposal for the City to enter into a Professional Services Agreement with Herrera Environmental to perform a Low Impact Drainage (LID) design for Smokey Point Boulevard. Marilyn Oertle moved and Debora Nelson seconded the motion to approve the Professional Services Agreement with Herrera Environmental and authorize the mayor to sign the agreement, pending final review by the City Attorney. The motion was approved by a unanimous vote ADMINISTRATOR & STAFF REPORTS City Administrator Allen Johnson commented on the surplus items and provided a spreadsheet to council with a complete itemization of the items for surplus. Allen also noted there is a high volume of caterpillars and the M&O staff are going around to the public right of ways to take care of the issue. Allen briefly mentioned the graphic on 67th trail detour. COUNCIL MEMBER REPORTS and MAYOR’S REPORT Dick Butner, Jan Schuette, Marilyn Oertle, Chris Raezer, Debora Nelson, Jesica Stickles, and Randy Tendering gave brief reports. Mayor Tolbert discussed the Stillaguamish Valley Economic Development Plan. EXECUTIVE SESSION Counsel Peiffle announced there would be no need for an Executive Session. ADJOURNMENT With no further business to come before the Council, the meeting was adjourned at 8:08 p.m. ____________________________ Barbara Tolbert, Mayor DRAFT Page 1 of 2 Council Chambers 110 East Third Street May 27, 2014 Councilmembers Present: Dick Butner, Randy Tendering, Marilyn Oertle, Debora Nelson, Chris Raezer, Jan Schuette, and Jesica Stickles Staff Present: Allen Johnson, Kristin Banfield, Paul Ellis, Bryan Terry, Jim Chase, Jim Kelly, Sheri Amundson, Roxanne Guenzler, and City Attorney Steve Peiffle. Council Members Absent: None Also Known to be Present: Sarah Arney, Bob Nelson, Kirk Boxleitner and Mike Hopson Mayor Tolbert called the meeting to order at 7:00 p.m. Chris Raezer moved to approve the agenda; Marilyn Oertle seconded the motion, which passed with a unanimous vote. WORKSHOP ITEMS ~ NO ACTION WAS TAKEN State of the Court – Marysville Municipal Court Judge Laurie Towers – Marysville Municipal Court presented the 2013 State of the Court and answered council questions. Repeal Ordinance No. 1418 - 172nd St NE Design Standards Public Works Director Jim Kelly spoke to the proposal to repeal Ordinance No. 1418 regarding 172nd Street design standards. Council questions and comments followed. Counsel Peiffle answered questions regarding the process for new standards if the current ordinance is repealed. Prairie Creek Phase 2A Apparent Low Bidder Jim Kelly spoke to the apparent low bidder of the Prairie Creek Phase 2A project. The process was reviewed with council; questions and comments followed. Interlocal Agreements with the County of Yakima and Jamestown Networks for Offsite Data Backup Information Technology Manager Bryan Terry addressed the Interlocal Agreement with Jamestown Networks and Master Services Agreement with the County of Yakima for offsite Data Backups. Bryan answered council questions throughout the discussion. April Financial Report Finance Director Jim Chase reviewed the April 2014 Financial Report with council. Mr. Chase answered council questions throughout the discussion. Executive Session The Council recessed at 7:56 pm for Executive Session to review the performance of a public employee [RCW 42.30.110(1)(g)] lasting approximately 60 minutes. Reconvene Council reconvened at 8:54 pm. Minutes of the Arlington City Council Workshop Minutes of the City of Arlington City Council Workshop DRAFT May 27, 2014 Page 2 of 2 Miscellaneous Council Items None Public Comment None Adjournment With no further business to come before the council the meeting was adjourned at 8:54 p.m. ____________________________ Barbara Tolbert, Mayor City of Arlington Council Agenda Bill Item: PH #1 Attachment B COUNCIL MEETING DATE: June 2, 2014 SUBJECT: PUBLIC HEARING on request to repeal Arlington Municipal Code (AMC) chapter 20.45 regarding 172nd street design standards ATTACHMENTS: - Draft Ordinance repealing AMC 20.45 regarding 172nd Street design standards - Road cross section adopted by AMC 20.45 DEPARTMENT OF ORIGIN Public Works – Jim Kelly EXPENDITURES REQUESTED: $ 0 BUDGET CATEGORY: N/A LEGAL REVIEW: DESCRIPTION: Staff is recommending action to repeal AMC 20.45 allowing 172nd St design to move forward based on current traffic conditions, community needs, and available funding. HISTORY: In 2007 the City passed an ordinance creating Arlington Municipal Code 20.45 that specifies how 172nd Street would be designed; this code applies to 172nd Street (SR-531) between I-5 and SR-9. In addition to adopting a road cross section, AMC 20.45 specifies required median widths, median landscaping, lane widths, sign requirements, planter strip widths, etc. With recent changes to speed limits on 172nd St and Arlington’s changing commuting needs, the community’s needs will best be served by designing a roadway that is based on traffic loading, current environmental/drainage requirements, and available funding. ALTERNATIVES • Do not repeal AMC 20.45 • Remand to staff for further evaluation RECOMMENDED MOTION: No action at this time – Public Hearing only. ORDINANCE NO. 2014-XXX 1 ORDINANCE NO. 2014--XXX AN ORDINANCE OF THE CITY OF ARLINGTON, WASHINGTON REPEALING ARLINGTON MUNICIPAL CODE CHAPTER 20.45 REGARDING 172nd STREET DESIGN STANDARDS WHEREAS, the City of Arlington, Washington has the authority to enact laws to regulate development occurring within the City; and WHEREAS, the City Council believes it is in the best interests of its citizens to repeal previously adopted design standards along 172nd Street (State Highway 531) between Interstate 5 and State Highway 9; NOW, THEREFORE, the City Council of the City of Arlington do hereby ordain as follows: Section 1. Arlington Municipal Code Chapter 20.45 shall be and hereby is deleted in its entirety. Section 2. Severability. If any provision, section, or part of this ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. Section 3. Effective Date. This ordinance shall be effective five days from its adoption and publication as required by law. PASSED BY the City Council and APPROVED by the Mayor this _____ day of _______________, 2014. CITY OF ARLINGTON ____________________________ Barbara Tolbert, Mayor Attest: _______________________________ Kristin Banfield, City Clerk ORDINANCE NO. 2014-XXX 2 Approved as to form: ____________________________ Steven J. Peiffle City Attorney City of Arlington Council Agenda Bill Item: NB #1 Attachment C COUNCIL MEETING DATE: June 2, 2014 SUBJECT: Interlocal Agreement with Jamestown Networks for offsite Data Backups ATTACHMENTS: Draft Interlocal Agreement DEPARTMENT OF ORIGIN Information Technology EXPENDITURES REQUESTED: $6,000 /year BUDGET CATEGORY: Communications – City Wide LEGAL REVIEW: DESCRIPTION: Jamestown Networks, which is a part of the Jamestown S’Klallam Tribe Economic Development Authority in conjunction with Northwest Open Access Network (NoaNet), provides a state wide fiber optic network for government agencies. Use of this network will allow us to transmit our computer data to Yakima County as a redundant back up. HISTORY: Historically, the City of Arlington has kept backup tapes and appliances off site, but not off region. By keeping data in Eastern Washington, it eliminates the risk of localized events having an effect on the City’s data. ALTERNATIVES Continue to backup data off site, but not off region. RECOMMENDED MOTION: I move to approve the Interlocal Agreement with Jamestown Networks for Ethernet connectivity to the Yakima County data center and authorize the Mayor to sign it. CONFIDENTIAL 1 5/22/2014 INTER-LOCAL AGREEMENT THIS INTERLOCAL COOPERATION AGREEMENT (the "Agreement") is made and entered into effective the 1st day of February, 2014, between City of Arlington, a City organized in Washington State, (“CITY”), and the Jamestown S'Klallam Tribe Economic Development Authority, a political subdivision of a Federally recognized Indian Tribe, dba Jamestown Networks (“JNET”). CITY and JNET are sometimes referred to in this Agreement as the "Parties." RECITALS A. CITY wishes to obtain services (“Services”) from JNET, as follows: Ethernet connectivity to the Yakima County data center in Yakima, WA via a service referred to in this Agreement as “LGN Service” (see Exhibit A – Services Statement of Work”). B. JNET uses the network infrastructure and personnel resources of Northwest Open Access Network (“NoaNet”), a Washington nonprofit mutual corporation, which operates a statewide fiber optic network. JNET has, by separate agreement, secured the services and personnel of NoaNet to provision and maintain the services provided to CITY as set forth in this Agreement. C. JNET is willing to provide the type of service CITY requires, referenced in A., above, for the consideration as set forth in Exhibit A. D. CITY confirms it has received permission from Snohomish County for its traffic to pass through the fiber leased on behalf of the County by NoaNet to the County colocation facility at 3000 Rockefeller Str eet in Everett, Washington. E. CITY will make all arrangements, agreements and consideration with the County to use of the existing fiber. F. JNet, through its subcontractor NoaNet, will assign a dedicated port on the NoaNet switch at the County facility. AGREEMENT Now, therefore, CITY and JNET, in consideration of the mutual benefits hereunder, agree as follows: 1. PURPOSE AND SCOPE The purpose and scope of this Agreement is to specify the terms and conditions under which CITY and JNET will undertake the LGN Service. The details are described in Exhibit A to this Agreement. 1.1 CITY’s Obligations: a. CITY hereby agrees to provide JNET, and its vendor NoaNet, access to CITY’s personnel and facilities to complete the setup of LGN Service specified in the Exhibit A, which service may only be used for lawful purposes, for the compensation set forth in that exhibit. b. The CITY agrees to pay JNET for the Service, as stipulated in Exhibit A to this Agreement, in a timely manner. 1.2 JNET's Obligations: a. JNET, through its agreement with its vendor NoaNet, agrees to operate and maintain the facilities (“Facilities”) and Service as set forth in the Exhibit A for the compensation set forth in that exhibit. CONFIDENTIAL 2 5/22/2014 b. JNET agrees to provide the Service in a responsible and business-like manner, in exchange for the compensation stated in Exhibit A to this Agreement. 1.3 Property Ownership and Disposition. The Parties shall retain their respective ownership of all of their properties. This Agreement does not contemplate joint ownership of property and, therefore, does not contain provisions regarding disposition of property owned by either Party. 2. TERM; TERMINATION The initial term (“Initial Term”) of the Agreement shall be for a period of five (5) years from and after the Effective Date. The Effective Date shall be the date on which the Service first becomes available for use by CITY. Either Party may terminate this Agreement at the end of the Initial Term upon written notification to the other Party of their intent to do so at least sixty (60) days prior to the expiration of the Initial Term. Should a terminating Party not notify the other Party of their intent to terminate the Services at least sixty (60) days prior to the expiration of the Current Term, the Services and Agreement will continue in effect for an additional one (1) year term (“Default Extended Term”). Upon termination of this Agreement, all JNET involvement in the provision of the Services will terminate. 3. COMPLIANCE WITH LAWS Each Party shall comply with all applicable laws and regulations in the exercise and performance of its rights and obligations under this Agreement. 4. FIBER OPTIC EQUIPMENT AND FACILITIES 4.1 No Representations or Warranties. EACH PARTY MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS OR ASSURANCES: (1) WITH RESPECT TO THE DESIGN, CONSTRUCTION, DURABILITY, SUITABILITY OR RELIABILITY OF THE EQUIPMENT OR FACILITIES, OR ANY PART THEREOF, WHETHER EXPRESS OR IMPLIED, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (2) WITH RESPECT TO THE NATURE OR ACCURACY OF THE DESCRIPTION, LOCATION OR MEASUREMENT OF THE EQUIPMENT OR FACILITIES, OR ANY PART THEREOF; AND (4) WITH RESPECT TO INTERRUPTION OR CONTINUATION OF THE FACILITIES AND/OR SERVICES. 4.2 Unauthorized Access/Breach. Except as provided in this Agreement, each Party is prohibited from accessing, directly or indirectly, the other Party's equipment or facilities, or any part thereof. Any unauthorized access by either Party of the other Party's equipment or facilities, or any part thereof, shall constitute a material breach of this Agreement and a default by t he unauthorized Party under this Agreement. 4.3 Approval of Design and Interconnection Specifications. Each Party shall provide, as reasonably requested from the other Party, information relating to the proposed design and/or installation specifications prior to modifying or making any connection to the CITY facilities or associated equipment or facilities. 4.4 Installation. Both Parties shall mutually agree to a work schedule during which the interconnections for the fiber optic equipment or facilities can be made. Each Party shall timely complete all such work within the agreed upon schedule. 4.5 Cooperation and Coordination. Each Party shall cooperate with the other concerning the timing, method or placement of its construction, installation and testi ng activities. 5. ALTERATIONS, MAINTENANCE AND REPAIRS CONFIDENTIAL 3 5/22/2014 5.1 Scheduling/Notice. Except as set forth in Section 6.2, each Party, at its sole cost and expense, may schedule and perform or cause to be performed scheduled alterations, maintenance and repairs on its own fiber optic equipment or facilities, or any part thereof, at the times and in the manner as may be established by the owner thereof. Subject to the provisions of Section 12, the Party scheduling work shall provide two (2) weeks prior written notice to other Party identifying the time, location, and nature of each scheduled alteration or maintenance and repair job for performance thereof which reasonably presents a substantial risk of damage to the other Party's property or creates a substantial likelihood of an interruption of fiber optic equipment or facilities. If fiber optic equipment or facilities include redundant fiber pathways, work will be scheduled to include no more than one pathway at any given time. Each Party shall furnish on a continuing basis the current name, title, telephone number, and personal communications device number (including facsimile transmission number, cellular telephone number and paging device number), if any, of any representative who shall be kept informed of maintenance schedules. The initial contacts are as follows: Party: JNET Address: 1033 Old Blyn Hwy, Sequim, WA 98382 Name: Ben Neff Title: Operations Manager Telephone Number: 360.683.2025 Facsimile Number: 360.683.9583 Email address: bneff@jamestowntribe.org Party: CITY Address: 238 N. Olympic Ave Name: Bryan Terry Title: IT Manager Telephone Number: 360-403-4610 Facsimile Number: 360-435-4149 Email address: bterry@arlingtonwa.gov NoaNet (JNET Vendor): NoaNet's contact regarding maintenance and repairs of the fiber optic equipment or facilities is NoaNet's Network Operations Center (NOC) Phone: 509-456-3611 800 Phone: 866-662-6380 Address: 422 W. Riverside, Suite 400, Spokane, WA 99201 5.2 Maintenance, Repair, and Restoration of the Cable. 5.2.1 Maintenance of Fiber Optic Equipment or Facilities. Reserved 5.2.2 Restoration Priorities and General Requirements. a. Each Party's obligation to maintain and repair its own fiber optic cable and equipment, and any activity incidental thereto, shall not unreasonably conflict with the other Party's rightful use and operation of its facilities and equipment. b. Timely restoration is dependent upon the timely coordination and cooperation between both Parties. Each Party will provide the other, in writing, with its emergency contact/call-out list as soon as practicable following the effective date of this Agreement. 5.2.3 Restoration/Repairs of the Cable. Reserved CONFIDENTIAL 4 5/22/2014 6. FORCE MAJEURE 6.1 As used in this Agreement, the term "Force Majeure" means acts of nature (including but not limited to, earthquakes, fires, floods, windstorms, landslides, and ice storms), strikes, lockouts, or other labor disputes; acts of public enemy; acts of vandalism, wars, riots, and insurrection; epidemics; civil disturbances; explosions; train derailments; breakdown or failure of machinery or facilities (excluding the cable and cable accessories); accidents to machinery or equipment (excluding the cable and cable accessories), and delay in delivery of equipment, to the extent such occurrences are beyond the reasonable control of the Parties and any other event, cause, or condition beyond a Party's reasonable control, which, by the exercise of reasonable diligence, prevents the Party claiming Force Majeure from performing its obligations under this Agreement. 6.2 If either Party is unable to carry out its obligations under this Agreement as a result of an event, cause, or condition of Force Majeure, the Party claiming Force Majeure shall give notice and full particulars of such Force Majeure in writing to the other Party within five (5) calendar days of the beginning of the occurrence of the Force Majeure event, cause, or condition. Any obligations that such Party is unable to perform due to an event, cause, or condition of Force Majeure shall be suspended during the continuance of such event of Force Majeure. The Party claiming Fo rce Majeure shall use reasonable efforts to remedy and minimize the effects of such event of Force Majeure with all reasonable dispatch. 6.3 Neither Party shall be liable, or be considered to be in material breach or default under this Agreement, on account of any delay in or failure of performance due to Force Majeure unless specifically stated in this Agreement. 6.4 If Force Majeure prevents restoration within one (1) year from the event of such Force Majeure, then either Party shall have the option to terminate this Agreement. 6.5 The obligations set forth in this section are expressly subject to the limitation of liability provisions contained in Section 12. 7. INSURANCE 7.1 Liability Insurance. Each Party shall, at its own expense, carry and maintain the following liability insurance coverage throughout the term of the Agreement: 7.1.1 General Liability Insurance: In the amounts of at least $1,000,000.00 per occurrence/$2,000,000.00 aggregate. 7.1.2 Each Party shall identify the other as an additional insured under the general liability insurance required under this Agreement. It is the sole responsibility of each Party to provide updated insurance information, in a timely manner, including any notices of cancellation or reduction in limits of insurance. Each Party will require that its insurer provide at least thirty (30) days notice to the other Party regarding any changes in insurance coverage required by this Agreement. 7.2 Property Insurance. Each Party shall carry and maintain property insurance in a form that will provide all risk coverage for the fiber optic equipment or facilities upon or within the other Party’s property. 7.3 Insurance Shall Not Limit Liability. Subject to the limitation of liability provisions set forth in Section 12, the insurance coverage and benefits required herein shall not be deemed to limit liability to either Party or any third party. In the event the minimum insurance limits specified in this Agreement are less than the maximum amount of insurance in effect at the time of claim or loss which arises from or is connected to the Agreement, each Party affirmatively agrees that all insurance limits available to it will be extended to the other Party as additional insured. CONFIDENTIAL 5 5/22/2014 8. INDEMNITY, HOLD HARMLESS AND DUTY TO DEFEND Subject to the limitation of liability provisions set forth in Section 12, each Party shall, at its sole expense, indemnify, defend, save, and hold harmless the other Party, its officers, directors, agents, members, and employees from al l actual or potential claims or losses, including costs and attorneys' fees at trial and on appeal, and damages or claims for damages to property or persons, suffered by anyone whomsoever to the extent caused by any negligent or willful act of or omission of the indemnifying Party or its subcontractors, excluding damages caused by the negligence of the indemnified Party, its officers, directors, agents, or employees. This indemnification includes, without limitation, any liability for injury to the person or property of either Party, its agents, officers, employees or invitees. Both Parties specifically waive any immunity provided by Title 51 RCW, Washington's Industrial Insurance Act. The provisions of this section shall survive the expiration or terminat ion of this Agreement. 9. ASSIGNMENT This Agreement cannot be assigned, transferred or any portion subcontracted by either Party hereto without the prior written consent of the other Party, which shall not unreasonably be withheld. 10. WAIVER The consent by CITY or JNET to any act by the other shall not be deemed to imply consent or to constitute the waiver of a breach of any provision hereof or continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the Parties in the administration of any part of the provisions hereof be construed to waive or lessen the right of a Party to insist upon the performance by the other Party in strict accordance with the provisions hereof. 11. DEFAULT AND REMEDIES FOR DEFAULT 11.1 Breach. This Agreement may be terminated upon the occurrence of a material breach and default under this Agreement. If the Party in breach fails to cure the breach within thirty (30) days or such longer period of time as is provided below, after receipt of notice thereof from the non -breaching Party, or, when the cure reasonably requires more than thirty (30) days, the breaching Party fails to commence the cure within such thirty (30) days and thereafter diligently and continuously prosecutes such cure to completion, such action or inaction shall constitute a material breach and default under this Agreement. 11.2 Remedies Not Exclusive. In the event of a material breach and default under this Agreement, termination is not the exclusive remedy. Any and all other remedies available of law or equity are expressly preserved. 12. LIMITATION OF LIABILITY 12.1 THE PARTIES SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, LIQUIDATED, OR SPECIAL DAMAGES OR LOST REVENUE OR LOST PROFITS ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF ANY PROVISION OF THIS AGREEMENT. 12.2 SUBJECT TO SECTION 12.1, EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS OR DEMANDS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE OTHER PARTY PURSUANT TO THIS AGREEMENT. 13. NOTICE Except as may otherwise be provided herein, any notices, except service of process and notice of emergency which may be given personally, telephonically, by e-mail or facsimile, shall be effective if personally served upon the other Party or if mailed by registered or certified mail, return receipt requested, to the following addresses: CONFIDENTIAL 6 5/22/2014 For CITY, c/o Bryan Terry, IT Manager, 238 N. Olympic Ave, Arlington WA 98223; For JNET, c/o Douglas Sellon, Executive Director, 1033 Old Blyn Hwy, Sequim, WA 98382. Notices mailed shall be deemed given on the date of mailing. The Parties shall notify each other in writing of any change of address. 14. BREACH OF AGREEMENT; REMEDIES; DISPUTE RESOLUTION If either Party fails to comply with the terms and conditions of this Agreement, the other Party may pursue such remedies as are legally available, including, but not limited to, the immediate termination of this Agreement. In the event that a dispute arises under this Agreement, it shall be resolved as follows: Each Party shall appoint a member to a disputes board and be responsible for the costs of that appointee. These two members shall then select a third member not affiliated with CITY or JNET. 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 the aforesaid process is a prerequisite to filing of any litigation concerning the dispute. The Parties shall share equally in the cost of the third member of the disputes board. 15. GOVERNING LAW This Agreement shall be governed by the laws of the State of Washington. 16. ATTORNEYS' FEES AND COSTS In the event of litigation regarding any of the terms of this Agreement, the substantially prevailing Party shall be entitled, in addition to other relief, to such reasonable attorneys' fees and costs as determined by the court. 17. MUTUAL NEGOTIATION AND CONSTRUCTION 17.1 Mutual Negotiation and Construction. This Agreement and each of the terms and provisions hereof are deemed to have been explicitly negotiated between, and mutually drafted by, the Parties, and the language in all parts of this Agreement shall, in all cases, be construed according to its fair meaning and not strictly for or against either Party. 17.2 Headings. The captions and section headings hereof are inserted for convenience purposes only and shall not be deemed to limit or expand the meaning of any section. 18. ENTIRE AGREEMENT; AMENDMENTS This Agreement contains the entire agreement between the Parties with respect to the subjec t matter hereof and supersedes all prior agreements or understandings among the Parties with respect thereto. This Agreement may be amended only by an agreement in writing signed by the Parties. 19. SEVERABILITY Should any part, term or provision of this Agreement be determined to be invalid, the remainder of this Agreement shall not be affected, and the same shall continue in full force and effect. 20. NO THIRD PARTY RIGHTS This Agreement shall not be construed to create rights in or grant remedies to any third Party as a beneficiary of this Agreement. 21. TAXES Each Party shall be responsible for its own federal, state and local taxes, assessments, fees, surcharges and other financial impositions. 22. COMPLIANCE WITH LAWS Each Party hereto, in its performance of this Agreement, agrees to comply with all applicable local, State, and Federal laws and regulations that apply to it. CONFIDENTIAL 7 5/22/2014 23. RELATIONSHIP OF THE PARTIES This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties, or to impose any partnership obligations or liability upon either Party. No agent, employee or representative of CITY shall be deemed to be an agent, employee, or representative of JNET for any purpose. No agent, employee or representative for JNET shall be deemed to be an agent, employee or representative of CITY for any purpose. 24. CONFIDENTIALITY Each Party shall treat all information made available or disclosed to, or developed or obtained by, it as the result of or related to this Agreement ("Confidential Information") as confidential, and shall not disclose or use Confidential Information for the benefit of any person other than the disclosing Party; provided however, that the Party receiving the Confidential Information shall have no obligation with respect to that portion of Confidential Information which is disclosed by the disclosing Party to others without any restriction on use or disclosure, or which must be disclosed to others under law. If the receiving Party receives a request for Confidential Information from a third party, the receiving Party shall promptly notify the disclosing Party in writing of such request, and if the receiving Party in good faith believes it is obligated to disclose the requested Confidential Information, the disclosing Party shall be given the opportunity to seek judicial or other protection of such Confidential Information, at i ts own expense, with the cooperation of the receiving Party. 25. SURVIVABILITY All provisions of this Agreement regarding indemnification, representations, warranties, confidentiality, and any other provisions that by their nature are intended to survive termination of this Agreement shall survive after its termination or expiration, including exhibits. 26. CONTRACT ADMINISTRATORS FOR RESPECTIVE PARTIES The initial contract administrators of the respective Parties to this Agreement shall be as follows: For JNET, its Executive Director, or their designated representative; and For CITY, its Mayor, or their designated representative. 27. AUTHORIZATION Each Party hereby represents and warrants to the other that it is duly authorized to enter into and carry out the terms of this Agreement. 28. COUNTERPARTS This Agreement may be executed in counterparts, which together shall constitute a single agreement. 29. LIMITED WAIVER OF SOVEREIGN IMMUNITY The parties respectively waive, relative to the enforcement of this Agreement only, by them against each other, any claims they may have to sovereign immunity. CONFIDENTIAL 8 5/22/2014 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first written above. For: CITY OF ARLINGTON For: Jamestown Networks By: ______________________________ By: ______________________________ Barbara Tolbert, Mayor Douglas Sellon, Executive Director List of Exhibits Attached: Exhibit A - Services Statement of Work CONFIDENTIAL 9 5/22/2014 EXHIBIT A Service Order Summary Service Description Monthly Recurring Charge (MRC) Term City of Arlington Council Agenda Bill Item: NB #2 Attachment D COUNCIL MEETING DATE: June 2, 2014 SUBJECT: Master Services Agreement with the County of Yakima for offsite Data Backups. ATTACHMENTS: Draft Master Services Contract DEPARTMENT OF ORIGIN Information Technology EXPENDITURES REQUESTED: $1,500 /year BUDGET CATEGORY: Communications – City Wide LEGAL REVIEW: DESCRIPTION: The County of Yakima offers space in their data center for offsite backup to government agencies. Use of the Yakima data center will provide off site, off region data protection in the event of a catastrophic event to the City of Arlington. HISTORY: Historically, the City of Arlington has kept backup tapes and appliances off site, but not off region. By keeping data in Eastern Washington, it eliminates the risk of localized events having an effect on the City’s data. ALTERNATIVES Continue to backup data off site, but not off region. RECOMMENDED MOTION: I move to approve the Master Services Contract with the County of Yakima for offsite data storage and authorize the Mayor to sign it. Form last revised 19 Aug 2004 -1- MASTER SERVICES AGREEMENT Yakima County Technology Services - Secure Data Center THIS MASTER SERVICES AGREEMENT (the “Agreement”) is made on the Effective Date below by and between the parties written below (hereinafter collectively referred to as the “Pa rties” or individually as the “Party). YAKIMA COUNTY TECHNOLOGY SERVICES - “Host”) CITY OF ARLINGTON (“Entity”) Effective Date July 1, 2014 Type(s) of Service        Total Contract Amount Table of Contents Form last revised 19 Aug 2004 -2- AGREEMENT WHEREAS, Entity (i.e., corporation, not-profit or government agency) desires to have Host provide services as set forth in the Statement of Work (“SOW”) set forth in Exhibit A attached to and under the terms and conditions of this Agreement (the “Services”); and, WHEREAS, Host agrees to provide Services to Entity within its Secure Data Center facility (hereinafter “SDC,” “Site” or “Facility”). NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Entity and Host, intending to be legally bound, hereby agree as follows: 1. SERVICES. Host shall provide all required Services, including services commercially reasonably required to support the Services, as set forth in Exhibit A and in accordance with this Agreement and all Exhibits, Schedules and Attachments thereof. 2. COMPENSATION. Entity agrees to pay Host for the Services in accordance with this Agreement and all Exhibits, Schedules and Attachments thereof and the following terms and conditions: (a) Payments. Initial payment for Services shall be due on the first day of the month immediately following the Effective Date of this Agreement. Unless otherwise stated in this Agreement, Entity shall make payments to Host on a monthly basis until the Agreement or applicable Statement of Work is ter minated or expires. Final payment shall be due no later than 30 days after termination or expiry of this Agreement or the applicable Statement of Work. Entity may pro rate its payments for partial months, subject to the prior review and approval of Host. Upon receipt of a notice of termination, Host shall inform Entity of the extent to which performance of services form the purpose of establishing any final amounts due, if any. (b) Remittance. Payment for any charges is due upon the date of the invoice or the first day of each month as applicable. All payments must be in U.S. Dollars. Any charge that is not paid within thirty (30) days from the date of the invoice shall be subject to an interest rate of 1.5% per month, or the maximum allowed by law. Entity shall be responsible for all costs of collection, including reasonable attorney's fees and court costs, in event of a default for nonpayment of any amounts due Host. Entity shall remit all payments to: “Yakima County Technology Services”. Entity shall make payment by Entity check, mailed to Yakima County, 128 North 2nd Street, Yakima, WA, 98901, to the attention of Yakima County Technology Services. (c) Transition; Refunds. Upon expiry or termination of this agreement and subject to prior approval of Host, Entity may be eligible for a refund in part or in whole for the final month of the Agreement based on difference in any amount paid in advance by Entity and the pro rated amount applied to the Services provided. However, Entity will not be eligible to receive a refund for any of the following: (i) setup fees or any fees other than the monthly or yearly recurring hosting fees; (ii) fees resulting from extra services or "add -ons" not classified as monthly or yearly recurring fees; (iii) late cancellation; (iv) slow connection caused by Entity's network or Entity’s network service provider, (v) problems in Services caused by Entity's ignorance; (vi) InterNIC delays; (vii) termination for any of the causes set forth in Section 3(c); or (viii) any other reason not provided for in this Section 2(c). In addition, Entity is obligated to pay Host for any non-recurring costs incurred by Host, including but not limited to set-up or take down of Entity’s equipment, and Host reserves the right to offset any refunds aga inst any such costs not yet paid by Entity. 3. TERM AND TERMINATION. (a) Term. This Agreement shall commence on the Effective Date and shall continue for a period of no less than one (1) year, unless sooner terminated as provided herein, and will au tomatically continue on a month to month basis thereafter unless either Party provides fifteen (15) calendar days written notice of its intent to terminate or cancel. The term of any right or license or proprietary rights granted to Entity under this Agree ment shall run concurrently with this Agreement or be for the full term of such proprietary rights. Either Party may terminate this Agreement without cause upon fifteen (15) calendar days written notice. Form last revised 19 Aug 2004 -3- (b) Termination for Convenience. Host may terminate this Agreement at its sole discretion or any or all services hereunder, or any portion thereof, upon fifteen (15) calendar days’ written notice to Entity. (c) Termination for Breach. Either Party may terminate this Agreement upon fifteen (15) calenda r days’ notice to the other Party in the event of a breach of any material provision of this Agreement by the other Party, provided that, during the fifteen-day period, the breaching Party fails to cure such breach or, should the breach not be curable within said fifteen-day period, the breaching Party has not initiated steps to cure such breach. In addition, Host may immediately terminate this Agreement for any of the following causes without possibility of cure, and in such case Host reserves the right to immediately terminate Entity’s account and suspend or cancel Services, and for such suspension or cancellation Entity shall not be eligible to receive a refund and may be subject to additional charges: (i) failure on the part of Entity to make payment in accordance with Section 3 of this Agreement for a period of fifteen (15) calendar days after payment is due; (ii) interference with the operation or security of Host’s facility or equipment or another Entity’s equipment or software; (iii) malicious or negligent acts on the part of the Entity, its employees, agents or subcontractors, which cause harm to Host or another Entity; (iv) any violations of security, confidentiality or proprietary rights of the Host or another Entity on the part of the Entity, its employees, agents or subcontractors; (v) any violation of Host’s Terms of Use, a copy of which is set forth herein under Exhibit F; the a cceptance of which constitutes an acceptance of any fines, penalties or service charges that might arise out of violat ion of these policies; (vi) commencement of any lawsuit or proceeding against Entity arising from or relating to its use of the Services, whether or not such suit names Host as a party or seeks any recovery from Host; (vi) Entity becoming insolvent or fili ng for bankruptcy protection; or (vii) assignment of this Agreement by Entity to any other entity without the prior approval of the Host, including assignment to an agent for the purpose of receivership. (d) Transition; Removal of Equipment. Entity or its designated agent or subcontractor shall take down and remove from Hosts premises all of its equipment and hardware, including resident software, within one (1) calendar week of the effective date of termination or expiry of this Agreement. Should Entity fail to remove such equipment and hardware within this one-week period, Host may at its discretion forfeit any refunds due to Entity. If equipment or hardware has not been removed from Host’s premises within one (1) calendar month of the effective date of termination or expiry of this Agreement, the equipment or hardware shall be considered abandoned and Host may at its discretion take possession of it for disposition, sale and/or disposal. 4. PROPRIETARY INFORMATION. It is understood that either Party may use its own previously developed data, documentation, software, ideas, concepts, materials, or information, in whatever form, in performing its services hereunder (collectively referred to as “Preexisting Works”). Insofar as such Preexisting Works were not first produced or created solely and exclusively for performance of work or the rendition of Services under this Agreement, but are necessary or useful for, or are used in connection with the Services, any and all right, title, and interest in Preexisting Works shall remain the sole and exclusive property of the Party who created such works. The Parties mutually grant a nonexclusive license to use each other’s Preexisting Works when used solely and exclusively in combination with the Services. Neither Party shall have any other rights, whatsoever, with respect to use of the other Party’s Preexisting Works. (a) It is understood that in performing its services, Host may have occasion to develop new and unique work products for use in conjunction with t he Services. The Parties agree that all such work products shall be considered “Works Made for Hire” as defined under the U.S. Copyright Laws, and Host shall be deemed the sole and exclusive owner of all right, title, and interest therein, including all co pyright and proprietary rights relating thereto. All such work performed by Host and any supporting documentation therefor and, as such, shall be owned by and for the benefit of the Host. For the purpose of this Agreement “Work Product(s)” shall mean all data, documentation, software, ideas, concepts, materials, and information, in whatever form, first produced or created by or for Host, which relate solely and exclusively to the performance of Services under this Agreement (hereinafter “Work Product(s)”). (b) As necessary for performance of the Services, Host will and hereby does assign to Entity for no additional consideration, all right, title, and interest that it may possess in Work Products including, but not limited to, all Host and proprietary rights relating thereto. Upon request, Host will take such steps as are reasonably necessary to enable Entity to record such assignment. Form last revised 19 Aug 2004 -4- 5. CONFIDENTIALITY. The terms and conditions set forth in the Non-disclosure Agreement between the Parties included in this Agreement under Exhibit C shall apply to this Agreement and are incorporated in this section by this reference. 6. REPRESENTATIONS AND WARRANTIES. (a) By Host: (i) Host has full rights to enter into and perform according to the terms of th is Agreement, and that such performance will not violate any agreement or obligation between Host and any third party. Entity understands that Host is currently providing one or more clients with similar Services. Provided that those Services do not interfere or conflict with Host’s obligations under this Agreement, provision of those Services shall not constitute a violation of this provision of the Agreement. Host reserves the right to restrict access to Host’s facility in its own discretion. (ii) Host has and will have full and sufficient right to assign or grant the rights and/or licenses granted in support of Services this Agreement, and such grant(s) do not and will not infringe any patents, copyrights, trademarks, or other intellectual property rights (including trade secrets), privacy, or similar rights of any person or entity, nor has any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, nor is such a claim pending against Host or, inso far as Host is aware, against any entity from which Host has obtained such rights. (iii) Host Services (A) shall be provided in a workmanlike manner and with professional diligence and skill; (B) all website-related Services will function under standard HTML conventions; (C) all Services will conform to the specifications and functions set forth in this Agreement; and (D) Host will perform all work called for by this Agreement. This warranty shall extend only for the life of this Agreement. This warranty does not cover failures in Entity-provided equipment or software, Entity’s website, Entity’s website links that change over time, Entity’s webpages that become obsolete over time, Entity’s content that becomes outdated over time, or other changes that do not result from any error on the part of Host. (iv) Host will take every step to ensure that the Facility and Services are available to users on demand. Notwithstanding same, Host is not liable for loss of internet service, internet access, or data for any reason including, but not limited to, any unforeseen or preventable failure related to changes in the internet infrastructure or traffic capabilities, failure or breakdown of the internet, the World Wide Web, any related telecommunications equipment or systems, or any computer hardware or software. (v) Host shall comply with all terms relating to Confidential Information and Entity understands that Host may, if compelled by superceding law, disclose information to a governmental agency upon request by that agency. In such case Host shall not be liable for any violation of the Mutual Non -disclosure Agreement between the Parties, Sections 4 or 5 of this Agreement, or any other applicable terms and conditions of this Agreement. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, HOST MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SERVICES PROVIDED, AND HOST SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PART ICULAR PURPOSE. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM HARDWARE FAILURES, DELAYS ON DELIVERIES, WRONG DELIVERY, ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY HOST AND ITS EMPLOYEES, SECURITY VIOLATIONS AND ANY OTHER CAUSE. (b) By Entity: (i) Entity has full rights to enter into and perform according to the terms of this Agreement, Form last revised 19 Aug 2004 -5- and that such performance will not violate any agreement or obligation between Entity and any third party. (ii) Entity will, at all times relevant to this Agreement, keep any and all license agreements with third parties relevant to the Services in force and in good standing; (iii) Entity is the legal owner or Lessor of all equipment and hardware to be housed at Host’s facility under this Agreement. (iv) Entity is solely responsible for maintaining its equipment and software. Entity shall maintain all software virus-free and to the extent possible shall incorporate all defenses, shields, programs or other means to ensure that software remains virus-free during performance of Services. (v) Entity and all of Entity’s data complies with all rules, requirements, obligations, laws, statutes, international conventions on use of data, and the terms and conditions of this Agreement. (vi) Entity and all employees, agents, and contractors of Entity shall comply with the Privacy Policy (Exhibit E), Terms of Use (Exhibit F) and any Facilities Use Policies which may be published by the SDC from time to time. (vii) Entity will not permit the use or sublicense of any of Entity’s services or rights under this Agreement. ENTITY ACKNOWLEDGES THAT IT HAS READ AND FULLY UNDERSTANDS THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 6(b). 7. INDEMNIFICATION, INSURANCE AND PROTECTION OF PROPERTY. (a) Indemnification by Entity. Entity shall indemnify and hold harmless Yakima County, its directors, officers, employees and agents from and against all actions, causes of action, liabilities, claims, suits, judgments, liens, awards and damages of any kind and nature whatsoe ver for losses due to the Services, damages due to software viruses or service interruptions due to malicious acts, property damage, personal injury or death (including without limitation injury to or death of employees of Entity or any subcontractor there of) and expenses, costs of litigation and counsel fees related thereto or incident to establishing the right to indemnification, arising out of or in any way related to the Services, the performance thereof by Entity or any subcontractor thereof or other third parties, including, without limitation, the provision of Services, personnel, facilities, equipment, support, supervision or review. The foregoing indemnity shall apply only to the extent of the negligence of Entity, any subcontractor thereof, or their respective employees. In no event shall Entity’s obligations hereunder be limited to the extent of any insurance available to or provided by Entity or any subcontractor thereof. Entity expressly waives any immunity under industrial insurance, whether ari sing out of statute or source, to the extent of the indemnity set forth in this paragraph (a). (b) Insurance. Entity shall comply with the Additional Terms Regarding Insurance for Work set forth in Exhibit D. (c) Duty to Protect Property. At all times Entity shall, and ensure that any subcontractor thereof shall, use suitable precautions to prevent damage to Host's or other parties’ property. If any such property is damaged by the fault or negligence of Entity or any subcontractor thereof, Entity shall, a t no cost to Host, promptly and equitably reimburse Host or the other party for such damage or repair or otherwise make good such property to Host’s or the other party’s satisfaction. If Entity fails to repair or otherwise make good such property, Host or other party may do so and recover from Entity the cost thereof. 8. TAXES. Entity shall be responsible for payment of all sales and use taxes applicable under this Agreement. Form last revised 19 Aug 2004 -6- 9. OTHER TERMS AND CONDITIONS. (a) Force Majeure. Neither Party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and th at such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event. (b) Relationship of the Parties. Host, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, agency, a joint venture, or a partnership. (c) Notices. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated Party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either Party may change the address to which notice or payment is to be sent by written notice to the other Party. (d) Governing Law; Venue; Attorney’s Fees. This Agreement shall be governed in accordance with the laws of the State of Washington and Entity agrees that any disputes under this Agreement shall be resolved by litigation in the U.S. Federal District Court for the Eastern District of Washington, sitting in Spokane, Washington, unless no federal jurisdiction exists, which in such event litigation shall be brought in the State Superior Court in Yakima, Washington. Entity agrees to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing Party will be entitled to recover its costs, including reasonable attorneys' fees. (e) Binding Agreement. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns. (f) Assignment. Neither Party may assign this Agreement nor the rights and obligations thereunder to any third party without the prior express written approval of the other Party, which shall not be unreasonably withheld. (g) Waiver. No waiver by either Party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement. (h) Severability. If a court of competent jurisdiction hereof holds any term, clause or provision invalid or unenforceable, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. (i) Special Provisions. Certain Special Provisions are included in this Agreement under Exhibit A, Attachment 1, and are incorporated herein by this reference and made a part hereof. (j) Precedence. Should there be a conflict between the terms and conditions of any Special Provision, Exhibit, SOW, Attachment or Schedule and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall take precedence. (k) Entire Agreement. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties whether verbal or in writing and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may conflict with this Agreement. Form last revised 19 Aug 2004 -7- IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto by their hand their signatures on the Effective Date written below. YAKIMA COUNTY TECHNOLOGY SERVICES ENTITY: City of ARLINGTON By: _________________________________ by: _____________________________________ Title: Director, Technology Services Title: Mayor 03-27-04 Page 1 at Exhibit A EXHIBIT A, A-1 and/or A-2 STATEMENT OF WORK The City of ARLINGTON will place hardware listed in Exhibit B, into the Yakima County SDC, Secure Data Center. The network connection to this equipment will be over the LGN, Local Government Network. The City of ARLINGTON will install the equipment and provide the necessary monitoring of their computer hardware. Yakima County to provide: - Security o Card key access o Multiple cameras in the data center o Electronic notification to on call staff when the data center is accessed - Rack space will be provided as needed - Replacement of drives in City of ARLINGTON equipment as needed using City of ARLINGTON provided drives (see Fee Schedule for rates) - The data center is designed to keep the temperature within 58 to 75 degrees and humidity within 35 to 50% . The system will notify on call Staff when the environment is outside of those ranges. - Tier 2 data center which includes o Liebert Npower 130kVA Uninterruptible Power Supply o Auxiliary power services provided via a Caterpillar® 450 KW diesel generator with 7 days of autonomous runtime before requiring refueling Page 1 at Schedule 1 SCHEDULE 1 TO EXHIBIT A FEE SCHEDULE Description # U per U extension Dell Powervault MD1200 2 $25 $50 Dell Powervault DL 2 $25 $50 SonicWall TZ215 1 $25 $25 Cost per month $125 Support is available from Yakima County technical staff at the rate per hour of: Rate Time of Day $ 85 Normal business hours, Monday – Friday, 8am – 5pm $150 Outside of normal business hours, including holidays Page 1 at Attachment 1 ATTACHMENT 1 TO EXHIBIT A SPECIAL PROVISIONS NONE Page 2 at Exhibit B EXHIBIT B LIST OF EQUIPMENT AND SOFTWARE (To Be Provided by Entity and Approved by Host) Quantity 1, Dell Powervault MD1200, dual power supply, 2U Quantity 1, Dell Powervault DL, dual power supply, 2U Quantity 1, SonicWall TZ215 Network Security Appliance, 1U Form last revised 19 Aug 2004 Page 1 at Exhibit C EXHIBIT C MUTUAL NON-DISCLOSURE AGREEMENT This Mutual Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below by and between YAKIMA COUNTY TECHNOLOGY SERVICES, a Washington State governmental entity (“Yakima”), and City of ARLINGTON, a Washington State governmental entity ("Entity"). IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL DISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS: A. Definition of Confidential Information and Exclusions. (1) "Confidential Information" means nonpublic information that a Party to this Agreement (“Disclosing Party”) designates as being confidential to the Party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. "Confidential Information" includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential. Except as otherwise in dicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and, except as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an Affiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall have entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving Party to enforce all of the provisions of this Agreement against such Affiliate. (2) Confidential Information shall not include any information, however designated, that: (a) is or subsequently becomes publicly available without Receiving Party's breach of any obligation owed Disclosing Party; (b) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the t erms of this Agreement; (c) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; or (d) is independently developed by Receiving Party. B. Obligations Regarding Confidential Information (1) Receiving Party shall: (a) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections B(2) and B(3) of this Agreement; (b) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party; Form last revised 19 Aug 2004 Page 2 at Exhibit C (c) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and (d) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law. (2) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order, provided that Receiving Party either (a) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (b) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub - section (a) of this Section B(2). (3) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to enable Receiving Party to enforce all the provisions of this Agreement. (4) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. (5) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify destruction of the same. C. Remedies The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be en titled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. D. Other Terms & Conditions (1) All Confidential Information is and shall remain the property of D isclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein. (2) In the event that the Disclosing Party provides any computer software and/or Form last revised 19 Aug 2004 Page 3 at Exhibit C hardware to the Receiving Party as Confidential Information under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use such software and/or hardware. (3) The parties agree to comply with all applicable international and nat ional laws that apply to (a) any Confidential Information, or (b) any product (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. (4) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right to independently develop or acquir e products without use of the other party's Confidential Information. Further, the Receiving Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know- how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from t he use of residuals. However, this sub-paragraph shall not be deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents. (5) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiesc ence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. (6) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party sha ll be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of the State of Washington, and the parties further consent to exclusive jurisdiction and venue in the U.S. Federal Court for the Eastern District of Washington, sitting in Spokane, Washington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of Yakima County, Washington. Entity waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. (7) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void. Form last revised 19 Aug 2004 Page 4 at Exhibit C (8) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. (9) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive any such termination. (10) Host and its employees do not accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new products or te chnologies, processes, materials, marketing plans or new product names, any original creative artwork, samples, demos, or other works. If Entity sends Host any such ideas or materials, Host will not consider nor treat such ideas and materials as confidential or proprietary under this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ENTITY: City of ARLINGTON YAKIMA COUNTY TECHNOLOGY SERVICES Address: 238 N Olympic Ave 128 North 2nd Street ARLINGTON, WA 98223 Yakima, WA 98901 By: By: Name: Barbara Tolbert Name: George Helton Title: Mayor Title: Director Technology Services Date: Date: Page 1 at Exhibit D EXHIBIT D INSURANCE REQUIREMENTS AND CERTIFICATE This Exhibit “D” is a continuation of that certain MASTER SERVICE S AGREEMENT between the Yakima County Technology Services (“Host”), and City of ARLINGTON (“Entity”), and specifies the insurance requirements of Entity under the Agreement. 1. INSURANCE. (a) General. Prior to the commencement of this Agreement, and throughout the entire Term of this Agreement, Entity shall procure and maintain the insurance described below. Such insurance shall be in a form and with insurers acceptable to Host and shall comply with the following minimum requirements. (b) Commercial General Liability. Entity shall obtain and maintain a commercial general liability insurance policy with reputable insurers reasonably acceptable to Host with policy limits of not less than $2,000,000 each occurrence for bodily injury and $2,000,000 each occurrence for damage to property, or, alternatively, $2,000,000 combined single limit each occurrence for bodily injury and property damage combined. The policy shall be the “occurrence” form and shall include coverage for premises and operations, contractual liability (including insurable contractual liability assumed in this Agreement), broad form property damage, and products and completed operations. The policy shall name Host as an additional insured to the extent of the contractual liability assum ed by Entity in this Agreement, and shall contain a severability of interests provision in favor of the additional insureds. (c) Automobile Liability. If licensed vehicles will be used by Entity during the Term of this Agreement, and at all times when such vehicles are operated on the premises of, or on behalf of, Host, Entity shall maintain automobile liability insurance covering all owned, rented, and non-owned vehicles with policy limits of not less than $1,000,000 combined single limit for bodily injury and property damage combined, or, if limits are obtained on a per person and per accident basis, not less than $1,000,000 per person and per accident for bodily injury, and $500,000 per accident for property damage. (d) Workers’ Compensation. Entity shall at all times comply fully with all applicable workers’ compensation, occupational disease, and occupational health and safety laws, statutes, and regulations, if any. Such workers’ compensation and occupational disease requirements shall include coverage for all employees of Entity suffering bodily injury (including death) by accident or disease, which arises out of or in connection with the performance of this Agreement by Entity. Except to the extent prohibited by law, Entity’s program(s) for com pliance with workers’ compensation and occupational disease laws, statutes, and regulations shall provide for a full waiver of rights of subrogation against Host, its subsidiaries, officers, and employees. If Entity, or any subcontractor retained by Entity, fails to effect and maintain a program of compliance with applicable workers’ compensation and occupational disease laws, statutes, and regulations, and Host incurs liability or fines or is required by law to provide benefits to such employees or to obtain coverage for such employees, Entity shall indemnify Host for such fines, payment of benefits to Entity’s or subcontractors’ employees or their heirs or legal representatives, and/or the cost of effecting coverage on behalf of such employees. Any amou nt owed to Host by Entity pursuant to this indemnity may be deducted from any payments owed by Host to Entity for performance of the Agreement. (e) Employers Liability. Entity, in addition to complying with the provisions of Section (d) above, shall maintain coverage for employers’ liability with a policy limit of not less than $1,000,000 per accident. In jurisdictions where commercial insurance of workers’ compensation is not permitted, this requirement may be fulfilled through addition of an Page 2 at Exhibit D “Employers Stop Gap Liability” endorsement to the comprehensive general liability policy required in Section (b) above. (f) Professional Liability/Errors & Omissions Liability. Entity shall maintain policy limits of not less than $2,000,000 each claim. Such ins urance shall include coverage for infringement of proprietary rights of any third party, including without limitation copyright, trade secret and trademark infringement as related to Entity’s performance under this Agreement. Throughout the Term of this Agreement, the Professional Liability/Errors & Omissions Liability insurance’s retroactive coverage date will be no later than the Effective Date of this Agreement. Upon expiration or termination of this Agreement, Entity will either maintain active policy coverage, or an extended reporting period, providing coverage for claims first made and reported to the insurance Entity within two years after the end of the Agreement. (g) General Requirements Applicable to Above Coverages. The following general requirements shall be applicable to all coverages referenced anywhere in this Section: (1) The above-referenced insurance policies shall be primary and not contributory to any insurance or program of self-insurance maintained by Host. (2) Any deductible or retention in excess of $100,000 per occurrence or accident under any of the above-required coverages shall be subject to the approval of Host prior to the commencement of the Agreement. (3) All deductibles and premiums associated with the above coverages shall be the responsibility of the Entity. (4) If, in the opinion of Host, the amount of liability coverage is not adequate by reason of inflationary pressures or experience or the nature and content of Entity’s activities, Entity shall increase the amount of insurance coverage as reasonably required by Host. (5) At the request of Host, Entity shall provide to Host, or make available for Host’s review, copies of the insurance policies required herein. Entity reserves the right to delete certain proprietary information not directly related to the provisions of insurance coverage required under this Agreement. (6) The above referenced insurance limits shall not in any way limit the liability of Entity or the liability of any Entity subcontracto r during their performance under this Agreement. Where any subcontractor is retained by Entity as may be authorized by Host in writing, Entity shall either require such subcontractor to assume the same insurance obligations on behalf of Host as are required of Entity herein, or extend its insurance to cover any subcontractor retained by Entity. (h) Certificates of Insurance. Prior to the inception of this Agreement, Entity shall provide to Host certificates of insurance evidencing full compliance with the insurance requirements contained herein. Such certificates shall be kept current throughout the entire period of the Agreement, and shall provide for at least thirty (30) days advance notice to Host if the coverage is to be canceled or materially altered so as not to comply with the foregoing requirements. Where such insurance is to waive rights of subrogation, the certificate shall expressly reflect in writing the insurers’ acceptance of such requirements. Failure by Entity to furnish certificates of insurance or failure by Host to request same shall not constitute a waiver by Host of the insurance requirements set forth herein. In the event of such failure on the part of Entity, Host expressly reserves the right to enforce these requirements. Page 3 at Exhibit D (i) Self-Assumption. Any self-insured retention, deductibles and exclusions in coverage in the policies required under this article shall be assumed by, for the account of and at the sole risk of Entity or the subcontractor which provides the insurance and to the extent applicable shall be paid by such Entity or subcontractor. In no event shall the liability of Entity or any subcontractor thereof be limited to the extent of any of the minimum limits of insurance required herein. 2. NOTICE OF LOSS, INJURY OR DAMAGE. In the event of any “significant” injury to persons or damage to property that occurs on the premises of Host during the performance of this Agreement by Entity or any subcontractor thereof, Entity shall notify Host as promptly as reasonably pra ctical after the occurrence of such injury or damage, and shall provide adequate details to enable Host to investigate the cause of such injury or damage. For the purposes of this provision, the term “significant” shall mean injury to persons that results in hospital treatment of such injury, and for damage to property, any damage or loss of property in excess of Ten Thousand and 00/100 Dollars ($10,000.00). 3. RISK OF LOSS. Entity assumes, and shall ensure that all subcontractors thereof and their resp ective employees assume, the risk of loss due to its actions which impact the operation of Host’s facility or operation of other party’s equipment located in Host’s facility, or destruction of or damage to any property of Host or other parties whether owned, hired, rented, borrowed or otherwise. Entity waives, and shall ensure that any subcontractor thereof and their respective employees waive, all rights of recovery against Host, its subsidiaries and their respective directors, officers, employees and agents for any such loss, or against loss due to destruction of or damage to any property of Entity, any subcontractor or their respective employees, unless the destruction of the property was due to Host negligence. Page 1 at Exhibit E EXHIBIT E YAKIMA COUNTY TECHNOLOGY SERVICES - SDC PRIVACY POLICY This Exhibit “E” is a continuation of that certain MASTER SERVICES AGREEMENT between the Yakima County Technology Services (“Host”), and City of ARLINGTON (“Entity”), and specifies Host’s Privacy Policy under the Agreement. 1. Information About Privacy. The Yakima County Technology Services, a governmental entity of the State of Washington (“Host”) providing services in the Secure Data Center, is committed to protecting the privacy of any user accessing its website and Entity contracting for hosting or colocation services within its Secure Data Center subject to a Master Services Agreement with Host (“Services”). User or Entity may visit most pages on Host’s website without giving any information about itself. Sometimes, however, Host may need information to provide Services that User or Entity requests, and this privacy statement explains data collection and use in those situations. This privacy statement only applies to the Services provided by Host and it does not apply to other online or offline Host sites, products or services. 2. Collection and Use of Personal Information. 2.1 Host collects certain information about User’s or Entity’s computer hardware and software. This information may include, but not be limited to , Entity’s IP address, browser type, operating system, domain name, access times and referring Web site addresses. This information is used to help diagnose problems with Host’s server, to maintain quality service, and to provide general statistics regarding use of Host’s website. Although IP addresses are logged to track Entity’s sessions, they are not linked to anything personally identifiable, and User and Entity shall remain anonymous. 2.2 If subscribing on-line, the site’s registration form requires User or Entity to provide contact information (e.g. name, e-mail address, telephone number); however, the information gathered is used only to contact User or Entity when necessary and is never shared with any party outside of Host. Other information may be required in the formulation of a Master Services Agreement, however that information shall be protected by the terms and conditions of that agreement. 2.3 Host’s website may contain links to other sites. Host is not responsible for the privacy practices or the content of other websites or Internet services providers. 2.4 Host’s website may use cookies to deliver content specific to User’s or Entity’s interests and needs. If User or Entity chooses to not have its browser accept cookies from Host’s website, Entity will be able to view the text on its screens; however, User or Entity will not experience a personalized visit nor will User or Entity be able to subscribe to service offerings on this site. 2.5 Host’s website may use outside advertising companies to display ads on its site. These ads may contain cookies that collect information by the advertising Entity, and Host will not have access to this information. 2.6 Any personal information collected by Host that identifies User or Entity personally will not be shared with any third parties. Page 2 at Exhibit E 2.7 Host’s website has security measures in place to protect the loss, misuse, and alteration of information under Host’s control. However, Host shall not be liable for any loss, misuse, and alteration of information that was not under its control at the time of such event. 3. Protection of Children’s Personal Information. Host’s website is a publicly available general audience site intended for providing information regarding services provided by Yakima Count y as well as other information related to the region. Host will not knowingly collect any personal information from or about minors or children. Any information unwittingly collected by Host will be treated in the same manner as set forth under section 2 of this statement. 4. Contact Information. Any questions about this privacy statement, the practices of this site, or dealings with this website, please contact the Yakima County SDC, helpdesk@co.yakima.wa.us. 5. Changes to this Statement. Host will occasionally update this privacy statement at its sole discretion. Updates will be posted on Host’s website under the “Privacy Policy” link. Host is not required to notify User or Entity of any such changes to this statement. Page 1 at Exhibit F EXHIBIT F YAKIMA COUNTY TECHNOLOGY SERVICES - SDC TERMS OF USE This Exhibit “F” is a continuation of that certain MASTER SERVICES AGREEMENT between the Yakima County Technology Services (“Host”), and City of ARLINGTON (“Entity”), and specifies Host’s Terms of Use under the Agreement. 1. Terms of Use. 1.1 The use of any website hosted by the Host, the Host’s website, or any colocation service provided by Host subject to a Master Services Agreement for such services (the “Services”) by Entity within Host’s Secure Data Center facility (the “SDC”) are subject to the following terms of use (“Terms of Use”). 1.2 Host reserves the right to update these Terms of Use at any time without notice to Entity. By using the web site, Entity agrees to all of the provisions contained or refe rred to in these Terms of Use. Entity’s use of the web site after any changes are posted to the web site constitutes Entity’s acceptance of the changes. The most current version of the Terms of Use can be reviewed by clicking on the “Terms of Use” hypertext link located at the bottom of the Web pages. Noting however that the Terms of Use published on Host’s website may include additional terms and conditions. 1.3 Questions or comments regarding Terms of Use should be forwarded to Host at the following address: helpdesk@co.yakima.wa.us Tel: (509) 574-2000 Fax: (509) 574-2001 2. Compliance with Law. 2.1 Entity shall not post, transmit, re-transmit or store material on or through any of Services which, in the sole judgment of Host (i) is in violation of any local, state, federal or non- United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any Person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Entity. 2.2 Entity agrees to indemnify and hold harmless Host from any claims resulting from the use of the Services that damages Entity or any other party, except to the extent the damages result solely from the Host’s negligence. Entity shall be responsible for determining what laws or regulations are applicable to its use of the Services. 3. Prohibited Uses of Services. In addition to the other requirements of these Terms of Use, Entity may only use the Services in a manner that, in Host's sole judgment, is consistent with the purposes of such Services. If Entity is unsure of whether any contemplated use or action is permitted, Entity must first contact Host as provided above. By way of example, and not limit ation, uses described below of the Services are expressly prohibited: 3.1 General Uses. Page 2 at Exhibit F 3.1.1 Unauthorized resale of any of the Services. 3.1.2 Pornography and pornographic related merchandising are prohibited under all Host's Services. This includes sites that include links to pornographic content elsewhere. Further examples of unacceptable content or links include pirated software, "hacker" programs, archives of "Warez Sites", game rooms or MUDs, Chat Rooms, IRC Bots, Egg Drop programs, programs designed to send unsolicited advertisements (i.e. "spamware", “spyware”, etc.) through email, pop-up ads, or other means, or any kind of illegal software or shareware. 3.1.3 Violations of the rights of any Person protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Entity. 3.1.4 Actions that restrict or inhibit any Person, whether a customer of Host or otherwise, in its use or enjoyment of any of Host's Services. 3.2 System and Network Uses. 3.2.1 Upload files that contain viruses, Trojan horses, worms, timebombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another. 3.2.2 Effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Entity is not an intended recipient or logging into a server or account that Entity is not expressly authorized to access. For purposes of this Section 3.2.2., "disruption" includes, but is not limited to, port scans, flood pings, packet spoofing and forged routing information. 3.2.3 Executing any form of network monitoring which will intercept data not intended for Entity's server. 3.2.4 Circumventing user authentication or security of any host, network or account. 3.2.5 Interfering with or denying service to any user other than Entity's host (for example, denial of service attack). 3.2.6 Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable, a user's terminal session, via any means, locally or via the Internet. 3.2.7 Creating an "active" full time connection on a Host-provided account by using artificial means involving software, programming or any other method. 3.2.8 Any attempt to circumvent or alter monitoring, bandwidth tracking or utilization reporting, or other actions which have the effect of complicating the normal operational procedures of Host, including but not limited to altering, removing or in any way modifying or tampering with Host created log files. 3.2.9 Any action which Host determines, in its own judgment, will reflect poorly on Host or negatively impact its operations. 3.2.10 Any action which Host deems to be an unacceptable use of resources, business practice or otherwise unacceptable to Host. Page 3 at Exhibit F 3.3 Billing Uses. 3.3.1 Furnishing false or incorrect data on the order form, contract or online application, including fraudulent use of credit card numbers. 3.3.2 Attempting to circumvent or alter the processes any billing procedures or procedures to measure time, bandwidth utilization, or other methods to document "use" of Host's Services. 3.4 Mail Uses. 3.4.1 Sending unsolicited commercial email messages (UCE), including the sending of "junk mail" or other advertising material (including, but not limited to, surveys, contests or any duplicative or unsolicited messages) to individuals who did not specifically request such material, who were not previous customers of Entity or with whom Entity does not have an existing business relationship ("email spam"). 3.4.2 Sending UCE referencing an email address for any domain hosted by Host. 3.4.3 Sending UCE referencing a domain hosted by Host. 3.4.4 Sending UCE referencing an IP address hosted by Host. 3.4.5 Posting advertisements on IRC, ICQ, or any other public chat system. 3.4.6 Harassing, stalking, threatening, defaming or other abuses, whether through language, frequency or size of messages, which violate the legal rights (such as rights of privacy and publicity) of others. 3.4.7 Unauthorized use, or forging, of mail header information. 3.4.8 Solicitations of mail for any other E-mail address other than that of the poster's account or service with the intent to harass or to collect replies. 3.4.9 Creating or forwarding "chain letters" or other "pyramid schemes" of any type. 3.4.10 Use of unsolicited email originating from within Host's network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by Host, or connected via Host's network. 3.4.11 Activities deemed to be unsolicited marketing efforts or otherwise harassing in any way. 3.5 Usenet Newsgroups Uses. 3.5.1 Posting the same or similar messages to large numbers of Usenet newsgroup ("Newsgroup spams"). 3.5.2 Posting chain letters of any type. 3.5.3 Posting encoded binary files to newsgroups not specifically named for that purpose. Page 4 at Exhibit F 3.5.4 Cancellation or superseding of posts other than your own. 3.5.5 Forging of header information. 3.5.6 Solicitations of mail for any other E-mail address other than that of the poster's account or service, with intent to harass or to collect replies. 3.5.7 Use of unsolicited E-mail originating from within Host's network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by Host, or connected via Host's network. 4. Security/Software 4.1 Entity agrees to take all steps reasonable, necessary, and prudent to protect Entity's login ID and password 4.2 Entity agrees not to attempt to undermine or cause harm to any server, software, system or Entity of Host 4.3 Entity agrees to maintain Entity’s computing equipment responsibly, including running virus software 4.4 Uploading a virus to a Host server will result in account term ination, service charges and/or prosecution 4.5 Entity acknowledges that Host cannot provide technical support for any software and/or script that the Entity installs, other than variable name changes. Entity also acknowledges that Host does not supply technical support for browser or development tools. Host supplies technical support for Web hosting issues only. Host shall be the sole arbiter as to what constitutes a "Web host" issue. 5. Violation. Any attempt to undermine or cause harm to Host server or another Entity's Web presence is strictly prohibited. Any violation of the above Terms of Use will result in grounds for account termination, with no refunds given; Host reserves the right to remove any account without prior notice. Violation of these Terms of Use may result in legal action, service charges or a combination thereof 6. Refusal of Service. 6.1 Host reserves the right to refuse or cancel service in its sole discretion with no refunds in accordance with Section 3 of the Master Services Agreement. 6.2 Failure to follow the Terms of Use may result in immediate account termination. 7. Links to Third-Party Sites. Host is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Host is not responsible for webcasting or any other form of transmission received from any linked site. Host is providing links on its website only as a convenience, and the inclusion of any link does not imply endorsement by Host of that website. City of Arlington Council Agenda Bill Item: NB #3 Attachment E COUNCIL MEETING DATE: June 2, 2014 SUBJECT: Prairie Creek Drainage Improvement, Phase 2A Bid Award ATTACHMENTS: - Bid Tabulation DEPARTMENT OF ORIGIN Public Works – Jim Kelly EXPENDITURES REQUESTED: $ 576,932.00 BUDGET CATEGORY: CERB Grant /Stormwater CIP/ Proviso LEGAL REVIEW: DESCRIPTION: The City advertised for construction of the Prairie Creek Drainage Improvement Project, Ph 2A. Bids were opened on May 13th, and the low bidder is Razz Construction. HISTORY: The City has completed engineering analysis and design to eliminate flooding from Prairie Creek in the Jensen Business Park area and in the southern portion of Arlington’s historic “Old Town” district. Last year Phase 1 of the project was constructed and this year we are ready to construct Phase 2A of the project. Phase 2A was publicly bid and the City received four bids; Razz Construction is the low bidder. Staff has reviewed the Razz Construction bid, checked their qualifications and references, and are recommending Razz Construction be awarded the contract. ALTERNATIVES • Reject Bids, re-advertise the project • Remand to staff for further evaluation RECOMMENDED MOTION: I move to accept the bid provided by Razz Construction for the Prairie Creek Drainage Improvement project, Phase 2A and award the contract to Razz Construction in the amount of $576,932.00, pending final review by the City Attorney. Engineer's Estimate Razz Constr.Award Constr.Taylor's Excav.Clearcreek Contr. Item Qty. Unit Unit Price Bid Price Unit Price Unit Price Unit Price A-1 1 LS $52,300 $53,500 $32,000 $50,000 $20,000 A-2 1 LS $5,000 $1,000 $1,000 $2,000 $100 A-3 1 LS $15,000 $4,000 $18,000 $12,000 $148,000 A-4 1 LS $40,000 $30,000 $23,000 $28,000 $45,000 A-5 1 LS $220,000 $294,000 $350,000 $425,000 $480,000 A-6 1 LS $10,000 $2,000 $6,000 $4,000 $7,000 A-7 1 LS $133,000 $80,000 $150,000 $38,000 $52,000 A-8 1 LS $25,000 $50,000 $10,000 $42,000 $24,000 A-9 1 LS $25,000 $20,000 $20,000 $7,000 $15,000 $525,300 $534,500 $610,000 $608,000 $791,100 52,530 577,830 Eng Estimate Razz Constr.Award Construction Taylor's Excav.Clearcreek Contr. Item Qty. Unit Unit Price Bid Price Unit Price Unit Price Unit Price B-1 1 LS 25,000 15,000 23,000 29,000 17,000 B-2 1 LS 25,000 24,000 21,000 25,000 25,000 50,000 39,000 44,000 54,000 833,100 4,400 3,432 3,872 4,752 73,313 54,400 42,432 47,872 58,752 906,413 5,000 59,400 640,000 576,932 657,872 666,752 Eng Estimate Includes 10% Contingency With calculations rounded up Sales Tax (8.8%) Total Schedule B Bid Amount Total Bid Schedules A & B Amount Storm Drain Relocation - 204th St. NE Sediment Removal/Stream Re-grade (204th St. NE to 74th Ave. NE) Traffic Control Total Schedule A Bid Amount Planting Contingency (10%) Subtotal Bidder incorrectly calculated Prairie Creek Drainage Improvement Project - PH2A - Bid Tab Culvert Replacement & Restoration LT - 5/15/2014 Subtotal Description Schedule B - Taxable (Utilities) Planting Zone Preparation Schedule A - Non Taxable Force Main Relocation - 204th St. Ave NE Water Main Relocation - 204th St. NE Description Mobilization Contract Bond Extension Trench Excavation Safety Systems Fish Passable Culvert - 204th St. NE City of Arlington Council Agenda Bill Item: NB #4 Attachment F COUNCIL MEETING DATE: June 2, 2014 SUBJECT: Resolution regarding the creation of a temporary Public Safety Director position ATTACHMENTS: Draft Resolution DEPARTMENT OF ORIGIN Administration EXPENDITURES REQUESTED: -0- BUDGET CATEGORY: N/A LEGAL REVIEW: DESCRIPTION: In accordance with the recommendations of the Matrix study of the operations of the Arlington Police Department, the Mayor is requesting the Council create a temporary Public Safety Director position. The individual filling the position will be tasked with implementing the remaining recommendations of the Matrix study over the course of the next two years. HISTORY: The City has completed analyses on the majority of the city’s departments over the last 8 years to ensure we are optimizing our organizational structure to provide the best service to the citizens of Arlington. The Matrix study was completed on May 15, 2014. ALTERNATIVES Do not create Public Safety Director position and request the item be returned to staff for further review and analysis RECOMMENDED MOTION: I move to approve the proposed Resolution regarding the creation of a temporary Public Safety Director position. RESOLUTION NO. 2014-XXX 1 RESOLUTION NO. 2014-XXX A RESOLUTION OF THE CITY COUNCIL OF ARLINGTON, WASHINGTON, REGARDING THE CREATION OF A TEMPORARY PUBLIC SAFETY DIRECTOR POSITION WHEREAS, the City has received the results of an extensive study of its police department dated May 15, 2014 and prepared by the Matrix Consulting Group of Mountain View, California (hereafter, the “Matrix Study”); and WHEREAS, the Matrix Study contains a lengthy list of recommendations for improvements to the management of the police department; and WHEREAS, the Matrix Study strongly recommends that the City consider the appointment of a Public Safety Director on a contract basis for a one to two year period to assist in the implementation of the Matrix Study recommendations; and WHEREAS, the City Council wishes to implement the recommendations of the Matrix Study for the purpose of improving the Department’s efficiency, accountability and management; NOW, THEREFORE, THE CITY COUNCIL OF ARLINGTON, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The Mayor and City Administrator are hereby authorized to create and staff a temporary contract position to be known as the “Public Safety Director”, the primary responsibilities for which shall be the implementation of the Matrix Study recommendations as set out as set forth in the attached Exhibit “A”. The position shall be for a term not to exceed two years. Section 2. The Public Safety Director, upon appointment, shall report to the Mayor and City Administrator, and shall serve in a management capacity over both the Police and Fire Departments of the City. Section 3. During the term of service of the Public Safety Director, the Public Safety Director shall have the full authority to designate a chief law enforcement officer and a chief fire protection and prevention officer, in compliance with all provisions of state law. Section 4. The Public Safety Director shall provide periodic updates to the Mayor and City Council on the implementation of the Matrix Study recommendations. RESOLUTION NO. 2014-XXX 2 APPROVED by the Mayor and City Council of the City of Arlington this ____ day of _________________, 2014. CITY OF ARLINGTON ____________________________________ Barbara Tolbert, Mayor ATTEST: _________________________________ Kristin Banfield, City Clerk APPROVED AS TO FORM: __________________________________ Steven J. Peiffle, City Attorney DRAFT CITY OF ARLINGTON JOB DESCRIPTION Title: Public Safety Director (Interim) FLSA: Exempt Reports To: City Administrator Position not to exceed 2 year term Definition Under the administrative direction of the City Administrator, is responsible for implementation of the Matrix Study. Also responsible for the overall management of police and fire operations and personnel including law enforcement, criminal investigations, crime prevention, fire suppression and prevention, emergency medical services, disaster responses, community problem solving, general community support services, and related support services; coordinates assigned activities with other departments and outside agencies. Individuals appointed to this classification must apply an extensive knowledge of public safety services and apply a sound management practice to a wide variety of complex situations. Individuals must determine and recommend policies and procedures, as well as maintain awareness of established ordinances and other regulations which must be followed. Errors in judgment or performance would have major impact on public safety operations and investigations, as well as negative impact on department morale and public perception. Accountable to the City Administrator to provide the highest quality of public safety services, to develop and manage a departmental organization of the highest professional standards and to ensure department operations provide the highest quality customer service possible. Responsible for supervision of department employees through delegation to assigned supervisors and/or directly, and to recommend and implement approved decisions for all personnel actions regarding these employees. Participate as a member of the City Management Team to assist in planning, organizing and implementing policies that affect the entire City. Job Location, and Equipment Utilized Work is normally performed in an office environment, field locations, and off site meetings. Equipment utilized includes standard and specialized office equipment including personal computer with word processing, database, network and specialized software. Attendance at early morning, evening and weekend meetings is required. DRAFT Scope of Work Responsible for the completion of the following recommendations from the Matrix Study (issued 5/27/2014): Recommendations - Department Management • Establish a process to regularly engage the community as a partner of the Department. The initial community visioning/planning process should be conducted by mid-2014 with meetings updates every six months thereafter. The community meetings should have an agenda and be supported with crime analytical data portraying trends in service. • Develop a staff committee for the establishment of a formal strategic plan that includes a vision of what the APD should be three to five years in the future, goals for improvement, and an action plan that defines each goal specifically, when it is to be accomplished, and who is responsible for completing the task. The development of a new Strategic Plan should include community input. • Assign accountability to each manager and supervisor of attainable objectives relating to delivery and monitoring of service to the community as well as addressing internal Departmental improvement needs. • Develop an annual report to the community which reports back on the progress toward meeting established objectives and obtain their feedback on this as well as new initiatives. • In cooperation with Human Resources, analyze the current roles of supervisors and managers to determine if they are correctly aligned. • In cooperation with Human Resources, develop new job descriptions for the Commanders and review the existing job descriptions for the Sergeants. • Utilize proper time-management methods so that decisions and the facilitation of administrative tasks are completed in a timely manner. • Implement a more frequent and substantive set of communication processes in the department, including: • Weekly meetings among the three top command staff with an agenda developed for each meeting, meeting minutes and including a review of selected performance and service objectives as well as key initiatives. • Monthly meetings with supervisors, each meeting prepared and review of selected performance and service objectives as well as key initiatives. • Attend a shift briefing at least quarterly and use that opportunity to answer questions from staff and discuss Department performance and initiatives. • Develop a monthly newsletter for staff to discuss accomplishments, challenges, and developments. • Hold monthly labor/management meetings to discuss internal issues and opportunities to improve the team orientation of all employees in the Department. • Be and be seen as a “change agent”. • Develop a system of data collection so that the response to meeting goals and objectives can be measured. DRAFT • Develop an internal and external performance reporting system based on these goals and objectives. • Create an Executive Assistant-level position to support the Department and command staff during this period of management transition. • Explore the interest in another department in Snohomish County in jointly funding a shared crime analyst position to develop information on crime and service in the community as well as the extent to which Department goals and objectives were being met. • Develop an improved approach to public communications on behalf of the Police Department’s needs and issues, including more effective public presentations, visuals in support of presentations and development of written staff reports. • Develop a training schedule for all supervisors and managers that includes Leadership and Organizational Change, Community Policing and Problem-Solving, Performance Management and Discipline and Ethics. • Ensure that each manager / supervisor receives a minimum of 40 hours per year on legitimately defined management and leadership topics. • Develop a system to prepare supervisors and managers so that they can perform their functions successfully as well as assume the responsibilities of their supervisor when needed. • Update the performance evaluation system to meet the Police Department’s need to improve first line supervision and management. • Organize a two-day planning session that relates directly to developing Department goals and objectives, facilitated by a third party. After the initial planning sessions are completed, recurring sessions should be held annually to tie accountability to performance. • Meet with representatives of the collective bargaining group in a formal setting (monthly or quarterly), with frequent informal contacts. • Retain the organizational and management staffing levels which exist in the Arlington Police Department, but focus on the management improvement issues analyzed in this chapter to better focus it on community and internal performance and accountability. Recommendations – Patrol Division • Annually review patrol staff workload for each four-hour time block to ensure that a reasonable amount of proactive hours are available throughout the day. • Adopt a process to enhance delivery of patrol services during the periods when “proactive time” is available. The Patrol Commander and Sergeants should coordinate the development of plans that identify specific tasks/projects that can be worked on or accomplished when “proactive time” is available during a shift. • Add one Officer position (to address normal attrition) to help maintain an actual staffing level of 17 Officers and Sergeants. • Continue to provide initial and ongoing training to Officers who are designated to function as the “Officer in Charge”. DRAFT • Review the Patrol workload for a second year (using calendar year 2014 CAD data) to determine the workload level demands and the level of Officer initiated activity; continue annual reviews of Patrol workload. Recommendations - Administrative and Investigative Division • Thoroughly evaluate the increase in crime over the last four years in an attempt to learn what led to the increase in crime and what steps can be taken to reduce crime or at least keep it from increasing. • Regularly review the Arlington clearance rates compared to the national average and also the clearance rates for other regional police agencies. • Establish a performance measure for the Investigative Unit of a specified percentage higher than the national clearance rate for violent crimes and for property crimes. • Fund one additional Support Services Officer position to be assigned responsibility for property and evidence functions, general support functions for line staff, and field duties similar to the current Support Services Officer. • Replace all front line police vehicles with over 100,000 miles. Examples of Other Work Performed May include any or all of the following (“E” denotes an Essential Job Function): • Assume full management responsibility for all Public Safety services and activities; manage the development and implementation of departmental goals, objectives, and priorities for each assigned service area; recommend and administer policies and procedures. (E) • Supervise directly or through delegation to assigned supervisors, lead personnel and/or all departmental employees. Make recommendations to City Administrator on all personnel actions such as hiring, training, terminations, discipline, number and organization of employees, and implement approved actions. (E) • Establish, within City policy, appropriate service and staffing levels; monitor and evaluate the efficiency and effectiveness of service delivery methods and procedures; allocate resources accordingly. (E) • Assess and monitor work load, administrative and support systems, and internal reporting relationships; identify opportunities for improvement; direct and implement changes. (E) • Plan, direct, and coordinate, through subordinate level staff, the work plans for the Police and Fire Departments; assign projects and programmatic areas of responsibility; review and evaluate work methods and procedures; meet with key staff to identify and resolve problems. Reviews and acts upon reports and recommendations of subordinate managers; prepare Department goals and objectives. (E) • Select, train, motivate, and evaluate assigned personnel; provide or coordinate staff training; work with employees to correct deficiencies; implement discipline and termination procedures. Establishes standards of performance for each position supervised. (E) • Oversee and participate in the development and administration of the budgets for the Police Department, Fire Department, Emergency Medical services, criminal justice, and emergency management; approve the forecast of funds needed for staffing, equipment, materials, and DRAFT supplies; approve expenditures and implement budgetary adjustments as appropriate and necessary. • Oversee the acquisition and maintenance of Department equipment and vehicles; maintain safety standards for personnel and equipment. (E) • Research and recommend to the Mayor programs for public safety services. Contact officials of State and Federal agencies for assistance in such programs. Prepare requests with appropriate supporting material for various State and Federal financial assistance and maintain appropriate intergovernmental coordination. (E) • Provide staff assistance to the City Administrator, Mayor and City Council; prepare and present staff reports and other necessary correspondence; attend City Council and other meetings as required. Confer with City Administrator and City Council on administrative matters, legislation and policies, making recommendations for action. (E) • Evaluate pending legislation and statutes and responds to changing regulations and technology regarding law enforcement, fire prevention and suppression, emergency medical services through review of technical materials and professional education. (E) • Represent the City’s public safety services to other departments, elected officials, and outside agencies; coordinate assigned activities with those of other departments and outside agencies and organizations. (E) • Select and manage any consultant service agreements and outside contractor/services contracts. Ensure such services are completed on schedule and within budget and quality specifications. (E) • Respond to and resolve difficult and sensitive citizen inquiries and complaints; explain, justify, and defend department programs, policies, and activities; negotiate and resolve sensitive and controversial issues. (E) • Participate on a variety of boards, commissions, and committees; serve as the City’s representative to committees and community organizations concerned with improvements in law enforcement and fire services, public education, and departmental public relations. (E) • Ensures all local, State, and Federal laws and ordinances are properly enforced. (E) • Respond to and may command police and/or fire emergencies or community disasters. (E) • Attend management and professional meetings and seminars as required. • Perform additional duties as described in the attached “Regular Management Responsibilities.” (E) • May perform other duties and activities as designated by the City Administrator. Required Knowledge, Skills and Abilities • Requires knowledge of the field of assignment and the physical ability sufficient to perform thoroughly and accurately the full scope of responsibility as illustrated by example in the above job description. • Extensive knowledge of State and Federal regulations governing Police, Fire, EMS, Criminal Justice, and Emergency Management functions. DRAFT • Sound knowledge of organizational, fiscal, personnel and supervisory practices and principles. • Ability to work with the community creating positive partnerships. • Ability to supervise department employees in a manner conducive to efficient and effective performance and high morale. • Ability to establish and maintain effective working relationships with City officials, employees, customers, vendors, intergovernmental agencies and the general public. • Ability to communicate effectively to a variety of audiences orally and in writing. • Ability to plan, implement, manage and evaluate a wide variety of simultaneous public safety programs. Physical Traits • Requires ability to work outdoors in all types of weather conditions. • Requires hearing and visual acuity and manual dexterity. Qualifications • Requires a BA or BS Degree in political science, criminal justice, police science, fire science, behavioral science, business or public administration, or related field; or previous related experience sufficient to demonstrate thorough competency and extensive knowledge of the principles and practices as applied to public safety disciplines. • Desirable that individual have demonstrated competency in management through previous experience of several years. • Ability to understand, create and analyze financial and economic forecast models. ______________________________________________________________________________ The statements contained herein reflect general details as necessary to describe the principal functions of this job, the level of knowledge and skill typically required, and the scope of responsibility, but should not be considered an all-inclusive listing of work requirements. Individuals may perform other duties as assigned including work in other functional areas to cover absences or relief, to equalize peak work periods, or otherwise to balance the workload.