Loading...
HomeMy WebLinkAbout12-20-10 Council Meeting Arlington City Council December 20, 2010 - 7 PM City Council Chambers 110 E. Third SPECIAL ACCOMMODATIONS: The City of Arlington strives to provide accessible meetings for people with disabilities. Please contact the ADA coordinator at (360) 403-3441 or 1-800-833-8388 (TDD only) prior to the meeting date if special accommodations are required. CALL TO ORDER / PLEDGE OF ALLEGIANCE/ROLL CALL APPROVAL OF THE AGENDA SWEARING IN: Reserve Officer Arturo Bartolome INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS -Recognition of Jim Rankin PUBLIC COMMENT For members of the public to speak to the Council regarding matters NOT on the agenda. Please limit remarks to three minutes CONSENT AGENDA 1. Minutes of the December 6 & 13, 2010 meetings ATTACHMENT A 2. Accounts Payable 3. Amendment to Employment Contract with C. Badger ATTACHMENT B PUBLIC HEARING 1. Proposed Ordinance to amend the 2010 Budget ATTACHMENT C UNFINISHED BUSINESS NEW BUSINESS 1. WSDOT Contract for utility work @ SR9/SR531 intersection ATTACHMENT D 2. Ordinance for Adoption of Stormwater Rate Increase ATTACHMENT E 3. Ordinance Adopting AMC 2.20 – Hours of Operation ATTACHMENT F 4. Ordinance for adopting revision to AMC 2.72 –Bidding Procedure/Small ATTACHMENT G Works Roster 5. Ordinance for adopting revision to AMC 5.04 – Peddlers & Solicitors ATTACHMENT H 6. Authorization for the Mayor to sign a contract with Zachor & Thomas ATTACHMENT I for prosecution services DISCUSSION ITEMS INFORMATION ADMINISTRATOR & STAFF REPORTS SPECIAL ACCOMMODATIONS: The City of Arlington strives to provide accessible meetings for people with disabilities. Please contact the ADA coordinator at (360) 403-3441 or 1-800-833-8388 (TDD only) prior to the meeting date if special accommodations are required. MAYOR’S REPORT COUNCIL MEMBER REPORTS – OPTIONAL EXECUTIVE SESSION RECONVENE ADJOURNMENT To download all attachments, click here DRAFT Page 1 of 3 Council Chambers 110 East Third December 6, 2010 City Council Members Present by Roll Call: Dick Butner Sally Lien, Scott Solla, Marilyn Oertle, Chris Raezer, Linda Byrnes, and Steve Baker Council Members Absent: There were no Council members absent. City Staff Present: Allen Johnson, Kristin Banfield, Jim Chase, Fire Chief Bruce Steadman and Firemen Brandon Asher, Dave Kraski, Doug Schmidt, Steve Daggett, Wayne Mitchel, Marty Ruffner, Bob Beam, and Tom Cooper; Chris Badger, Police Officer Brian DeWitt, David Kuhl, Bill Blake, Paul Ellis, Julie Good, Roxanne Guenzler, Sherri Amundson, Jan Bauer, and Steve Peiffle – City Attorney Also Known to be Present: Walt Riebe, Gale Fiege – The Everett Herald, George Bolton, Terry and Barbara Marsh, Sarah Arney – North County Outlook, Neil Knutson, and Kari Ilonummi (arriving at 7:26PM) In the absence of Mayor Larson, Mayor Pro-Tem Steve Baker called the meeting to order at 7:00PM, and the pledge of allegiance to the flag followed. APPROVAL OF THE AGENDA Marilyn Oertle moved to approve the Agenda. Sally Lien seconded the motion which passed with a unanimous vote. INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS Bruce Stedman, Fire Chief City Attorney Steve Peiffle swore in Bruce Stedman as Arlington’s Fire Chief. Chief Stedman introduced his family, and his son pinned on the official badge. He then briefly spoke to those in attendance and was formally introduced to the Council. PUBLIC COMMENT Deborah Nelson, 517 North McLeod, Arlington, incoming president of DABA, expressed appreciation to the Council for their cooperation in making the recent downtown activities a great success. George Bolton, 401 North Clara, Arlington, food bank volunteer, asked about the food bank and where the new one is in the process. He urged the Council to keep their eye on the project, as he sees the great need for a new food bank building. Paul Ellis gave a project update. CONSENT AGENDA Marilyn Oertle moved and Scott Solla seconded the motion to approve the Consent Agenda which was unanimously carried to approve the following Consent Agenda items: 1. Minutes of the November 15 regular meeting and the November 29 joint meeting. Minutes of the Arlington City Council Meeting Minutes of the City of Arlington City Council Meeting DRAFT December 6, 2010 Page 2 of 3 2. Accounts Payable Electronic Payments and Claims Checks #71705 through #71866 dated November 16, 2010 through November 30, 2010 in the amount of $$1,383,794.89, and Payroll Checks #26957 through #26986 and Electronic Payments #128065 through #128316 for the period November 1, 2010 through November 30, 2010 for $1,275,282.37 3. Proclamation of DECA Week December 6-10, 2010 PUBLIC HEARING There was no Public Hearing. There was no Unfinished Business. UNFINISHED BUSINESS NEW BUSINESS With the Council projector not working, Finance Director Jim Chase was unable to give a power point presentation. He thanked those who volunteers for the City, stating that their efforts make a positive difference in the operation of the City. Mr. Chase then gave a brief review of the 2011 budget, and answered Council questions. Adopt 2011 Budget Sally Lien moved to adopt the Budget for 2011. Chris Raezer seconded the motion which passed with a unanimous vote. Bill Blake presented the easements on critical areas in the vicinity of Arlington High School and Pioneer Elementary. There were no Council questions. ASD Pioneer Grade School and High School Critical Area Protection Easement Marilyn Oertle moved to accept the Critical Areas Protection Easements for Arlington High School and Pioneer Elementary School. Sally Lien seconded the motion which passed with a unanimous vote. Community Development Director David Kuhl gave a brief description of the requested Right-of- Way Easements and asked for Council approval. Acceptance of Right-of-Way & Utility Easements for Spectrum Final Short Plat Zoning Permit (File No. PLN20100029 Dick Butner moved to accept dedication of right-of-way, sidewalks, parks, or other public facilities shown on the Spectrum Final Short Plat (PLN20100029). Marilyn Oertle seconded the motion which passed with a unanimous vote. Mr. Johnson noted that two projectors have been ordered for the Council Chambers. ADMINISTRATOR & STAFF REPORTS Mayor Margaret hopes to soon return to her duty as Mayor. MAYOR’S REPORT Scott Solla, Marilyn Oertle, Steve Baker, Chris Raezer, and Linda Byrnes gave brief reports, while Dick Butner and Sally Lien had nothing to report at this time. COUNCIL MEMBER REPORTS – OPTIONAL Minutes of the City of Arlington City Council Meeting DRAFT December 6, 2010 Page 3 of 3 Mr. Peiffle reminded the Council of their upcoming retreat. Mr. Peiffle then stated that a 30-minute Executive Session would be necessary to review collective bargaining negotiations, grievances, or discussions regarding the interpretation or application of a labor agreement [RCW 42.30.140(4)], and to review one item of pending litigation [RCW 42.30.110(1)(i)]. No action would be taken during or after the session. EXECUTIVE SESSION The meeting was adjourned into Executive Session at 7:43PM. The meeting was reconvened at 8:14PM and with no other business, the meeting was immediately adjourned at 8:14PM. RECONVENE ____________________________ Steve Baker, Mayor Pro Tem DRAFT Page 1 of 2 Council Chambers 110 East Third Street December 13, 2010 Dick Butner Sally Lien, Scott Solla, Marilyn Oertle, Chris Raezer, Linda Byrnes, and Steve Baker, Mayor Larson, Allen Johnson, Kristin Banfield, Jim Chase, Police Chief Nelson Beazley, Fire Chief Bruce Steadman, Fireman Tom Cooper, Jim Kelly, David Kuhl, Todd Hall, Jan Bauer, Steve Peiffle – City Attorney Council Members Absent: There were no Council members absent. Also Known to be Present: Sarah Arney – North County Outlook, Monica Schlagel, and Elizabeth Chamberlin Mayor Larson called the meeting to order at 7:00PM. Steve Baker moved to approve the Agenda, and Marilyn Oertle seconded the motion, which passed with a unanimous vote approving the Workshop Agenda. WORKSHOP ITEMS ~ NO ACTION WAS TAKEN Public Works Director Jim Kelly distributed and then noted the Utility Construction Agreement for work at SR9 and SR531, addressing the contract and services that would be provided. Mr. Kelly answered several Council questions. WSDOT Contract for Utility Work @ the SR9/SR531 Intersection Mr. Kelly spoke to the Proposed Stormwater Rate Increase, implementing rate increase scenario #2. He then answered Council questions. Ordinance for Adoption of Stormwater Rate Increase With the use of a power point presentation Finance Director Jim Chase presented the Amended 2010 Budget, noting the recent changes that had been made and answering Council questions. Ordinance for 2010 Budget amendments With the use of a power point presentation Community Development Director David Kuhl, along with Associate Planner Todd Hall reviewed the Draft West Arlington Sub Area Plan which will eventually be adopted to Arlington’s Comprehensive Plan. Throughout the presentation Mr. Hall answered Council questions. David Kuhl recapped the results of 3 neighborhood meetings held in 2009 and 2010; he also named the West Arlington Sub Area Plan committee members who helped in the process. This spring a consultant or a firm will be hired which will enable the plan to move forward. Mr. Kuhl reviewed some of the suggestions made by neighborhood meeting attendees. Planning Commission and City Council Public Hearings on the Plan will take place in January 2011. Draft West Arlington Sub Area Plan Assistant City Administrator Kristin Banfield discussed the need to hours of operation as needed to be included in the Code. AMC 2.xxx – Hours of Operation Minutes of the Arlington City Council Workshop Minutes of the City of Arlington City Council Meeting DRAFT December 13, 2010 Page 2 of 2 Kristin Banfield noted that this would be the most updated process of the Purchasing and Small Works Roster. AMC 2.72 –Ordinance for Bidding Procedure / Small Works Roster Ms Banfield briefly spoke to this Ordinance and addressed Council concerns and questions. The March Arlington Update should contain information for the community regarding peddlers and solicitors. AMC 5.04 – Ordinance for Peddlers & Solicitors City Attorney Steve Peiffle and Ms. Banfield spoke to the proposed contract with Zachor &Thomas. Mr. Peiffle requested approval of the proposed contract. Prosecutor Contract Police Chief Nelson Beazley gave information on the parking situation within the City of Arlington. Chief Beazley suggested keeping the present parking ordinance in place. Throughout the discussion Chief Beazley addressed Council questions and concerns. Mr. Mike Molsee, 205 South Dunham Avenue, Arlington, requested a more liberal ordinance than is presently in place and briefly spoke to the situation. Discussion followed. Parking Discussion The meeting was adjourned at 8:42PM. ____________________________ Margaret Larson, Mayor City of Arlington Council Agenda Bill AGENDA ITEM: Consent Agenda #3 ATTACHMENT B COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Authorization for the Mayor to sign an amendment to the Employment Contract with Chris Badger DEPARTMENT OF ORIGIN: Executive Contact: Allen Johnson, 360-403-3441 Kristin Banfield, 360-403-3444 ATTACHMENTS: - Employment Contract with C. Badger EXPENDITURES REQUESTED: -0- BUDGET CATEGORY: N/A LEGAL REVIEW: City Attorney prepared the amendment to the Employment Agreement DESCRIPTION: City Council is requested to authorize the Mayor to execute the attached amendment to the employment agreement with Chris Badger to serve as the City’s Emergency Management Coordinator. The amendment is to reassign Ms. Badger’s supervision to the City Administrator. HISTORY: Ms. Badger has served as the City’s Emergency Management Coordinator for the last 3 years. ALTERNATIVES: Do not authorize the Mayor to sign the amendment to the Employment Agreement RECOMMENDED MOTION: I move Council authorize the Mayor to sign the amendment to the Employment Agreement with Chris Badger. AGREEMENT AMENDING EMPLOYMENT CONTRACT 1. Parties . The parties to this agreement are Christine Badger (hereinafter “Badger”) and the City of Arlington, Washington (hereinafter “City”). 2. Recitals a. Badger has been employed by the City as its Emergency Management Coordinator. . b. The parties are the parties to an Employment Agreement dated _______________, 2010 (hereinafter the “Employment Agreement”). 3. Agreement . The parties agree that paragraph 1(a) of the Employment Agreement shall be amended to read as follows: a. Effective as of the date hereof, Employee shall faithfully and competently and to the best of her abilities, serve Employer as Emergency Management Coordinator, subject to the general supervision and direction of the City’s Fire ChiefCity Administrator. The Employee is responsible to prepare and implement emergency management plans for the entire Arlington community. The City has developed partnerships with the Arlington School District (“the School District”) and Cascade Valley Hospital (“the Hospital District”) to ensure that the three main public agencies in Arlington work together during an emergency situation. The Employee, while having a direct reporting relationship to the City of Arlington and the City’s Fire ChiefCity Administrator, will still be responsive to the School District and the Hospital District. The term of employment shall be for two years, commencing on March 1, 2010 and concluding no later than February 29, 2012, subject to the provisions of paragraph 1(b) below. DATED this ____ day of ____________, 201__ CITY OF ARLINGTON ______________________ Margaret Larson, Mayor CHRISTINE BADGER ______________________ Christine Badger City of Arlington Council Agenda Bill AGENDA ITEM: Public Hearing #1 ATTACHMENT C COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Amending the 2010 budget DEPARTMENT OF ORIGIN: Contact: Allen Johnson, Executive, 403-3443 Jim Chase, Finance, 403-3422 ATTACHMENTS: 1. Ordinance amending 2010 budget 2. Attachment – Exhibit A 3. Amendment Descriptions EXPENDITURES REQUESTED: N/A BUDGET CATEGORY: Breakdown attached LEGAL REVIEW: Ordinance has been reviewed by City Attorney DESCRIPTION: Each year budget adjustments are proposed to reflect expenditures that were unforeseen and changes that have occurred since the original budget was adopted. This is a housekeeping item in that revenues have been received and expenditures, for the most part, have been approved throughout the year. This is the final budget piece for 2010. HISTORY: The major portion of the proposed amendments include the sale of LTGO Bonds in August to refinance the 2001 bonds and provide financing for airport land purchase and improvements to Fire St. 46, and increasing the budget for work completed to date on the new Sewer Treatment Plant. The remaining amounts of the amendment provide for variety of items and are listed in detail on the attachment to this document. Amendments were reviewed at the December 13, 2010 workshop. ALTERNATIVES If the amendment is not completed by the end of the year we will be out of compliance with state law. RECOMMENDED ACTION: The City Council is requested to adopt the proposed Ordinance amending the 2010 budget for the City of Arlington. 1 ORDINANCE NO. 2010-______ AN ORDINANCE AMENDING THE 2010 ANNUAL BUDGET OF THE CITY OF ARLINGTON BY PROVIDING SUPPLEMENT THERETO; PROVIDING TRANSFERS AND ADJUSTMENT AUTHORITY, AND DECLARING AN EMERGENCY WHEREAS, staff has identified the need to make certain revisions to the 2010 Annual Budget that were not foreseen when Ordinance No. 1477 was adopted on December 7, 2009, and WHEREAS, this ordinance was introduced with proper notice, and citizens were given the opportunity to comment, and WHEREAS, because this will require increasing the appropriation level in one or more funds, an amendment is needed, NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ARLINGTON, WASHINGTON AS FOLLOWS: Section 1. Pursuant to RCW 35A.33.090, an emergency is declared to exist and the 2010 Budget is hereby amended to provide for adjustments to revenues and expenditures, and by providing authority for any necessary transfers of money within or between funds as indicated in the “Changes” column on the attached Exhibit “A”. Section 2. That the attached is a summary of the amended budget for the year 2010 for the City of Arlington and that copies of the detailed amended budget are available to any interested taxpayer at the Finance Department, City Hall, Arlington, Washington. Section 3. This ordinance shall be in full force and effect after its passage, and publication according to law. PASSED by the City Council and APPROVED by the Mayor this 20th day of December, 2010. CITY OF ARLINGTON ____________________________________ Mayor 2 ATTEST: ___________________________________ Kristin Banfield, City Clerk APPROVED AS TO FORM: ___________________________________ Steven J. Peiffle, City Attorney FUND 2010 Adopted Changes Total Amended Expenses Budget OPERATING FUNDS General Fund 11,502,827$ 5,224,800$ 16,727,627$ PW-Engineering 523,132 120,000 643,132 PW-Streets Maintenance 1,073,006 - 1,073,006 PW-Water Operations 3,856,976 50,000 3,906,976 PW-Sewer Operations 4,110,501 486,000 4,596,501 PW-Utilities Administration 600,474 - 600,474 Airport Fund 3,052,658 - 3,052,658 Equipment Rental 47,967 - 47,967 PW Maint. &Operations 1,272,106 - 1,272,106 Recycling 24,900 - 24,900 Stream Corridor 17,000 - 17,000 Stormwater Management 489,235 - 489,235 Cemetery Improvement 216,589 30,000 246,589 Emergency Medical Services 2,133,760 183,000 2,316,760 Total Operating Funds 28,921,131 6,093,800 35,014,931 CAPITAL FUNDS Water Improvement 2,153,300 - 2,153,300 Sewer Improvement 1,004,400 - 1,004,400 WasteWater Treatment Plant Project Fund 16,177,500 3,000,000 19,177,500 Arlington Growth 827,000 65,400 892,400 Real Estate Excise Tax 2 155,500 375,000 530,500 Real Estate Excise Tax 1 900,229 - 900,229 Transportation Improvement 1,441,294 - 1,441,294 Park Improvement - 807,000 807,000 Equipment Replacement 1 290,000 290,001 Airport Capital Implrovement Projects (FAA)312,000 1,056,000 1,368,000 Airport Improvement Fund (AIP)450,144 - 450,144 Surface Water Capital Improvement Projects 520,000 - 520,000 Capital Facilities/Building fund 642,943 180,000 822,943 Lodging Tax Fund 150,000 - 150,000 Total Capital Funds 24,734,311 5,773,400 30,507,711 RESERVE FUNDS Program Development 100,025 - 100,025 Airport Reserve 207,240 - 207,240 Self Insurance - 41,400 41,400 Total Reserve Funds 307,265 41,400 348,665 DEBT SERVICE FUNDS 2001 Limited Tax GO Bonds (Thomas/Mina)59,223 2,520 61,743 2001-A LTGO Bonds (Facilities)368,125 (368,125) - 2003 Airport Revenue Bonds 52,655 (52,655) - 2004 LTGO Bonds (Facilities #2)370,272 (370,272) - 2005 LTGO Bonds (Sweeper/aid)56,679 (56,679) - 2007 LTGO Bonds (N. Olympic)290,823 (290,823) - 2007 Bond Proceeds - 37,550 37,550 Water/Sewer Revenue Bond Redemption 592,532 (592,532) - Local Improvement District #21 Bonds 65,000 110,000 175,000 Total Debt Service 1,855,309 (1,581,016) 274,293 TOTAL ALL FUNDS 55,818,016$ 10,327,584$ 66,145,600$ 2010 BUDGET AMENDMENTS - EXHIBIT "A" 2010 BUDGET AMENDMENTS GENERAL FUND CHANGE Legislative 12,000.00$ Official publication and voter registration costs Criminal Justice 62,000 Increase in Jail fees Executive 112,800 Emergency Management Coordinator salary & benefits Finance 67,000 Increase due to monthly billing, financial software purchase, intern salary. Rcvd reimbursement from WFOA for Intern salary Legal 20,000 Original budget low Personnel 31,000 Fire Chief Search was not in 2010 original budget Law Enforcement 90,000 Overtime budgeted too low, LEOFF 1 Medical claims & increase Sno-Pac services Fire Dept 60,000 Original overtime budget too low Non-Expenditures 88,000 These fees are based on traffic/criminal citations (non-revenues) and remitted to State. Debt Service 4,065,000 Debt paid directly from General Fund instead of Debt Service Fund/advance refunding of 2001 LTGO Bonds Other Financing Uses 617,000 Transfers to Street & REET funds TOTAL GENERAL FUND 5,224,800 OTHER FUNDS Engineering 120,000 Hiring of FT Engineer/Menglou SL cashout & Kelli Hale Consulting Growth Fund 65,400 Graffstra interest payments Emergency Medical Services 183,000 Original budget low, Debt Service for aid car previously 2001-A LTGO (New Facilities)(368,125) Debt paid directly from Capital/Facilities/Bldg Fund Cemetery Improvement 30,000.00 Cemetery Irrigation - Off-set by Water Rights Transfer 2001 LTGO (Thomas/Mina)2,520 Original budget low 2003 Airport Revenue Bond (52,655.00) Debt paid directly from Airport fund - closed fund Page 1 2010 BUDGET AMENDMENTS CHANGE 2004 LTGO (370,272.00) Paid directly from General Fund (police station) - closed fund 2005 LTGO (56,679.00) Aid car & Sweeper Payment paid out of EMS/Street Fund 2007 Bond Proceeds 37,550 Fire Station #48 & Transfer to REET 1 2007 LTGO (290,823) Paid directly from Airport Fund LID #21 110,000 Transfer to General Fund - closed fund REET 1 375,000 Pay-off 800 Mhz loan Capital Facilities/Building 180,000 Energy Efficiency Block Grant, Fire Station Remodel, will receive remainder revenue for Grant in 2011 Park Improvement 807,000 Graffstra interest payment & down payment Water Fund 50,000 State and City tax adjustment Sewer Fund 486,000 Estimate on Draw Schedule for loans was too low Water/Sewer Revenue Bond (592,532) Debt paid directly from Water/Sewer Operating Fund WWTP Construction 3,000,000 Construction completed and billed faster than anticipated Airport CIP 1,056,000 Cornehl property purchase, approved 07/19/2010 council meeting Self Insurance 41,400 Transfer to General Fund - closed account Equipment Depreciation 290,000 Purchase of 2 police cars which was originally budgeted in Program Development fund & aid car purchase GRAND TOTAL 10,327,584$ Page 2 City of Arlington Council Agenda Bill AGENDA ITEM: New Business #1 ATTACHMENT D COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Contract with WSDOT for Utility Relocation and New Construction at the SR9- SR531 Intersection DEPARTMENT OF ORIGIN: Public Works – James Kelly ATTACHMENTS: COA-WSDOT Agreement for Relocation of Water Main and Construction of New Sanitary Sewer EXPENDITURES REQUESTED: $575,026 (Estimate – included in 2011 Budget) BUDGET CATEGORY: Water Capital Fund (405) $ 306,608 Sewer Capital Fund (406) $ 268,418 LEGAL REVIEW: Pending review by City Attorney DESCRIPTION: Contract with WSDOT for construction and construction management services for the relocation of an existing City owned water main that is within the WSDOT ROW and for the installation of a new sanitary sewer main to serve parcels adjoining the SR9/SR-531 intersection. HISTORY: WSDOT is in the process of converting the SR9-SR531 intersection from a signal controlled intersection to a roundabout. This is a fully funded WSDOT project and will be bid in spring 2011. The City of Arlington has a 12-inch water main in this intersection that has to be relocated in order for WSDOT to perform their work. In accordance with WSDOT ROW agreements and state law, any utility relocation costs must be borne by the utility owner (the City). The City contracted with WSDOT to perform the water main relocation design and to specify a 16-inch water main to accommodate future City growth. The City also coordinated with WSDOT to include a 12-inch sanitary sewer to serve development in the vicinity of the intersection. WSDOT has completed the design, specification, and cost estimate for the water and sewer utility work and will include this work with the larger intersection project. The proposed WSDOT-COA contract allows WSDOT to proceed with the utility construction and bill the City for its share of the utility construction. ALTERNATIVES: None. RECOMMENDED ACTION: Motion to authorize the agreement between the City of Arlington and WSDOT for the relocation of existing water utilities and construction of new sewer utilities at the SR-9/SR-531 Intersection, pending final approval by City Attorney. The STATE will incorporate the Plans and Special Provisions into the STATE Project in accordance with UTILITY requirements. The UTILITY agrees that it is solely responsible for insuring that all Special Provisions, Plans and UTILITY standards are met and that it has supplied the STATE with all applicable standards, codes, regulations, or any other requirements the UTILITY is obligated to meet, unless otherwise noted. 1.4 The UTILITY has reviewed and approved the Work Special Provisions and Plans that will be incorporated into the STATE Project. The STATE will advertise the Work and Project for bids. The STATE will be the UTILITY’s representative during the Ad and award period. When requested by the STATE, the UTILITY shall timely assist the STATE in answering bid questions and resolving any design issues that may arise associated with the Work. All comments and clarifications must go through the STATE. If the UTILITY supplied the Work plans and special provisions, the UTILITY agrees to provide the STATE with any addenda required for the Work during the Ad period, to the Parties’ mutual satisfaction. 1.5 The STATE will provide the UTILITY with written notification of the bid price no later than five (5) days after award for all Work items for which the UTILITY is responsible for the cost. The UTILITY shall respond in writing to the STATE, stating its Acceptance or Rejection of the Work items, within two (2) working days. 1.6 Should the UTILITY reject the bid Work items for which it has cost responsibility: 1.6.1 The STATE shall delete said items from the Project. The UTILITY agrees to reimburse the STATE for engineering costs and direct and related indirect costs incurred by the STATE associated with deleting the bid Work items from the Project, including any redesign, reengineering or re-estimating, if necessary, to delete the Work items, and the UTILITY agrees to pay such costs upon receipt of a STATE invoice. 1.6.2 The UTILITY agrees that should it reject the bid Work items for which it has cost responsibility, it shall continue to be obligated to timely relocate its facilities as required by the STATE Project. The UTILITY further agrees that should its actions delay or otherwise damage the STATE Project, it shall be liable for such costs. 2.CONSTRUCTION, INSPECTION, AND ACCEPTANCE 2.1 The STATE agrees to administer the Work on behalf of the UTILITY. 2.2 The UTILITY agrees to disconnect and/or reconnect its facilities as required by the STATE when such disconnection or reconnection is required to be performed by the UTILITY. The Parties agree to define disconnect and/or reconnection requirements, including notification and response in Exhibit A. The STATE agrees, as part of the Work, to remove disconnected and/or abandoned facilities at the UTILITY’s cost. UTILITY facilities not removed pursuant to this Agreement shall remain the ownership, operation and maintenance responsibility of the UTILITY. 2.3 Salvage: All materials removed by the STATE shall be reclaimed or disposed of by the STATE and shall become the property of the STATE. If the UTILITY desires to retain such materials and the STATE agrees, the value of salvaged materials will be paid to the STATE in an amount not less than that required by the Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects. 2.4 The UTILITY may furnish an inspector for the Work. The UTILITY agrees that it is solely responsible for all such inspection costs. The UTILITY’s inspector shall not directly contact the STATE’s contractor. All contact between the UTILITY’s inspector and the STATE’s contractor shall be through the STATE’s representatives. The STATE’s Project Construction Engineer may require the removal and/or replacement of the UTILITY’s inspector if the inspector interferes with the STATE’s Project, STATE’s contractor and/or the Work. 2.5 The STATE shall promptly notify the UTILITY in writing when the Work is completed. 2.6 The UTILITY shall, within ( ) working days of being notified that the Work is completed: (a) deliver a letter of acceptance to the STATE which shall include a release and waiver of all future claims or demands of any nature resulting from the performance of the Work and the STATE’s administration thereof, or (b) deliver to the STATE written reasons why the Work does not comply with the previously approved Plans and Special Provisions. DOT Form 224-062 EF Revised 11/10 Page 2 of 5 The UTILITY agrees to work diligently and in good faith with the STATE to resolve any issues so as not to delay the STATE’s Project. If all issues are resolved, the UTILITY agrees to deliver to the STATE a letter of acceptance as provided herein. 2.7 If the UTILITY does not respond within ( ) working days as provided in Section 2.6, the Work and the administration thereof will be deemed accepted by the UTILITY, and the STATE shall be released from all future claims and demands. 2.8 Upon completion and acceptance of the Work pursuant to Sections 2.6 or 2.7, the UTILITY agrees that it shall be solely responsible for all future ownership, operation and maintenance costs of its facilities, without STATE liability or expense. 2.9 The STATE will prepare the final construction documentation in general conformance with the STATE’s Construction Manual. The STATE will maintain one set of plans as the official "as-built" set, then make notations in red of all plan revisions typically recorded per standard STATE practice, as directed by the STATE’s Construction Manual. Once the UTILITY has accepted the Work per Section 2.6 or 2.7, the STATE upon request by the UTILITY will provide one reproducible set of contract as-builts to the UTILITY, and the UTILITY agrees to pay the cost of reproduction upon receipt of a STATE invoice 3. PAYMENT 3.1 The UTILITY agrees that it shall be responsible for the actual direct and related indirect costs, including mobilization, construction engineering, contract administration and overhead costs, associated with the Work. The cost of this Work is estimated to be Dollars ( $ ). An itemized estimate of UTILITY- responsible costs for Work to be performed by the STATE on behalf of the UTILITY is included in Exhibit B, Cost Estimate. 3.2 The UTILITY agrees to pay the STATE the “Advance Payment Amount” stated above within twenty (20) calendar days after the STATE submits its first partial payment request to the UTILITY. The advance payment represents fifteen (15) percent of the estimate of cost for which the UTILITY is responsible. The advance payment will be carried throughout the life of the Work with final adjustment made in the final invoice 3.3 The Parties acknowledge and agree that the STATE does not have the legal authority to advance state funds for the UTILITY’s Work under this Agreement. Should the UTILITY fail to make payment according to the terms of this Agreement, the STATE shall have the right to terminate this Agreement, charging the UTILITY for all associated costs of termination, including non-cancellable items, as well as associated Project delay and contractor claims. Such termination shall not relieve the UTILITY’s obligation to timely relocate its facilities as provided under Section 1.6.2 3.4 The UTILITY, in consideration of the faithful performance of the Work to be done by the STATE, agrees to pay the STATE for the actual direct and related indirect cost of all Work for which the UTILITY is responsible, including mobilization, construction engineering, administration and overhead costs. The STATE shall invoice the UTILITY and provide supporting documentation therefore, and the UTILITY agrees to pay the STATE within thirty (30) calendar days of receipt of an invoice. A partial payment will not constitute agreement as to the appropriateness of any item and that, at the time of final invoice, the Parties will resolve any discrepancies. 4. CHANGE IN WORK OR COST INCREASE 4.1 Increase in Cost: In the event unforeseen conditions require an increase in the cost of the Work for which the UTILITY is responsible, above the Exhibit B, Cost Estimate (including sales tax, engineering, and contingencies) by more than ( ) percent, the Parties agree to modify Exhibit B to include such cost increase. 4.2 If the STATE determines that additional Work or a change in the Work is required, prior written approval must be secured from the UTILITY; however, where the change is required to mitigate a Project emergency or safety threat to the traveling public, the STATE will direct the change without the UTILITY’s prior approval. The STATE will notify the UTILITY of such change as soon as possible thereafter. The UTILITY agrees to respond to all STATE change order requests in writing DOT Form 224-062 EF Revised 11/10 Page 3 of 5 and within five (5) working days. STATE notification shall not be required for UTILITY-requested changes. The UTILITY agrees to pay all costs associated with the changed Work, as well as the costs of Project or Work delays and/or subsequent contractor claims associated with the UTILITY’s failure to timely respond as required. 4.3 The UTILITY may request additions to the Work through the STATE in writing. The STATE will implement the requested changes as elective changes, provided that a change does not negatively impact the STATE’s transportation system and complies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations, and/or STATE design policies, and does not unreasonably delay critically scheduled Project contract activities. 4.4 All elective changes to the Work shall be approved in writing by the UTILITY before the STATE directs the contractor to implement the changes, even if an executed change order is not required by the Project contract. The UTILITY agrees to pay for the increases in cost, if any, for such elective changes in accordance with Section 3. 4.5 The STATE will make available to the UTILITY all change order documentation related to the Work. 5. FRANCHISE OR PERMIT 5.1 The UTILITY shall apply for a permit, franchise or an amendment to its current franchise for those new or modified UTILITY facilities that will be located within the STATE’s right of way. After receiving the application, the STATE will issue the UTILITY a permit or a new or amended franchise. 6. RIGHT OF ENTRY 6.1 The UTILITY agrees to arrange for rights of entry upon all privately owned lands upon which the UTILITY has a claimed property right and which are necessary to perform the Work. The UTILITY also agrees to obtain all necessary permissions for the STATE to perform the Work on such lands, which may include reasonable use restrictions on those lands. The UTILITY agrees to provide the rights of entry and applicable permissions under this section to the STATE within ( ) calendar days of entering into this Agreement. Upon completion of the Work on such lands, the rights of entry and permissions shall terminate. 7. GENERAL PROVISIONS 7.1 Indemnification: To the extent authorized by law, the UTILITY and STATE shall indemnify and hold harmless one another and their employees and/or officers from and shall process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages (both to persons and/or property), or costs, of whatsoever kind or nature, brought against the one Party arising out of, in connection with, or incident to the other Party’s performance or failure to perform any aspect of this Agreement, provided, however, that if such claims are caused by or result from the concurrent negligence of (a) the UTILITY and (b) the STATE, their respective employees and/or officers, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the UTILITY or STATE, and provided further, that nothing herein shall require the UTILITY or STATE to hold harmless or defend the other or its employees and/or officers from any claims arising from that Party’s sole negligence or that of its employees and/or officers. The terms of this section shall survive the termination of this Agreement. 7.2 Disputes: If a dispute occurs between the UTILITY and the STATE at any time during the prosecution of the Work, the Parties agree to negotiate at the management level to resolve any issues. Should such negotiations fail to produce a satisfactory resolution, the Parties agree to enter into arbitration and/or mediation before proceeding to any other legal remedy. Each Party shall be responsible for its own fees and costs. The Parties agree to equally share the cost of a mediator or arbiter. 7.3 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in the superior court situated in Thurston County, Washington. Each Party shall be responsible for its own attorney’s fees and costs. DOT Form 224-062 EF Revised 11/10 Page 4 of 5 7.4 Termination: 7.4.1 Unless otherwise provided herein, the UTILITY may terminate this Agreement upon thirty (30) calendar days written notice to the STATE. If this Agreement is terminated by the UTILITY prior to the fulfillment of the terms stated herein, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred up to the date of termination associated with the UTILITY Work, as well as the cost of non-cancelable obligations, including any redesign, reengineering or re-estimating, if necessary, to delete the Work, and contractor claims, if any, payment in accordance with Section 3. Further, the UTILITY acknowledges and agrees that should it terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.4.2 Unless otherwise provided herein, the STATE may terminate this Agreement upon thirty (30) calendar days written notice to the UTILITY. Should the STATE terminate this Agreement, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred by the STATE up to the date of termination associated with the UTILITY Work. The UTILITY acknowledges and agrees that should the STATE terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.5 Amendments: This Agreement may be amended by the mutual agreement of the Parties. Such amendments or modifications shall not be binding unless put in writing and signed by persons authorized to bind each of the Parties. 7.6 Independent Contractor: Both Parties shall be deemed independent contractors for all purposes, and the employees of each Party and any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be the employees of the other Party. 7.7 Audit and Records: During the progress of the Work and for a period of not less than three (3) years from the date of final payment, both Parties shall maintain the records and accounts pertaining to the Work and shall make them available during normal business hours and as often as necessary, for inspection and audit by the other Party, State of Washington, and/or Federal Government and copies of all records, accounts, documents or other data pertaining to the Work will be furnished upon request. The requesting Party shall pay the cost of copies produced. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until any litigation, claim or audit finding has been resolved even though such litigation, claim or audit continues past the three-year retention period. 7.8 Working Days: Working days for this Agreement are defined as Monday through Friday, excluding Washington State holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year last written below. STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION By Title UTILITY Date Name DOT Form 224-062 EF Revised 11/10 Page 5 of 5 By Title Date Name DOT Form 224-062 EF Revised 11/10 Utility Construction Agreement Work by State - Utility Cost Utility Name and Address Project Title / LocationAgreement Number State Route Region Estimated Agreement Amount Page 1 of 5 Mileposts From To Advance Payment Amount $$ This Utility Construction Agreement is made and entered into between the State of Washington Department of Transportation, herein (STATE) and the above named UTILITY. WHEREAS, the STATE is planning the construction or improvement of the State Route as shown above for the listed STATE Project, and in connection therewith, it is necessary to remove and/or relocate and/or construct certain UTILITY facilities, herein the (Work), and WHEREAS, the UTILITY is responsible for (1) the cost of the Work for UTILITY facilities located without a documented ownership of and/or interest in real property, such as being located pursuant to a franchise, a permit, or undocumented permission, (2) all betterments, and (3) new facilities, and WHEREAS, the Work shall be defined as all materials, equipment, labor, contract administration and any other efforts required to perform the relocation, construction, and/or removal of the UTILITY’s facilities, and WHEREAS, the Work includes o Betterments; o Relocation of Facilities with Property Rights; o Facilities without Property Rights; o Installation of New Facilities; o Removal of Existing Facilities from the STATE right of way, and WHEREAS, it is deemed to be in the best public interest for the STATE to include the Work in the STATE’s Project, NOW, THEREFORE, pursuant to RCW 47.01.210 and chapter 47.44 RCW and in consideration of the terms, conditions, covenants, and performances contained herein, as well as the attached Exhibits which are incorporated and made a part hereof, IT IS MUTUALLY AGREED AS FOLLOWS: 1. PLANS, SPECIFICATIONS AND BIDS 1.1 Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects shall determine and establish the definitions and applicable standards and payments for this Agreement. By this reference this document is adopted and made a part of this Agreement as if fully contained herein. 1.2 Betterment: A betterment is any improvement to the UTILITY’s facilities not required by code, regulation, standard industry practice, or any other applicable regulation. If any of the Work constitutes a betterment as defined in the Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects , the UTILITY is solely responsible for the costs of such improvement. 1.3 The STATE, acting on behalf of the UTILITY, agrees to perform the UTILITY facilities Work in accordance with Exhibit A, Special Provisions, and Exhibit C, Plans, where either: (1) UTILITY supplied the Work plans and special provisions to the STATE, or (2) STATE developed the Work plans and special provisions from UTILITY-provided information. The STATE will incorporate the Plans and Special Provisions into the STATE Project in accordance with UTILITY requirements. The UTILITY agrees that it is solely responsible for insuring that all Special Provisions, Plans and UTILITY standards are met and that it has supplied the STATE with all applicable standards, codes, regulations, or any other requirements the UTILITY is obligated to meet, unless otherwise noted. 1.4 The UTILITY has reviewed and approved the Work Special Provisions and Plans that will be incorporated into the STATE Project. The STATE will advertise the Work and Project for bids. The STATE will be the UTILITY’s representative during the Ad and award period. When requested by the STATE, the UTILITY shall timely assist the STATE in answering bid questions and resolving any design issues that may arise associated with the Work. All comments and clarifications must go through the STATE. If the UTILITY supplied the Work plans and special provisions, the UTILITY agrees to provide the STATE with any addenda required for the Work during the Ad period, to the Parties’ mutual satisfaction. 1.5 The STATE will provide the UTILITY with written notification of the bid price no later than five (5) days after award for all Work items for which the UTILITY is responsible for the cost. The UTILITY shall respond in writing to the STATE, stating its Acceptance or Rejection of the Work items, within two (2) working days. 1.6 Should the UTILITY reject the bid Work items for which it has cost responsibility: 1.6.1 The STATE shall delete said items from the Project. The UTILITY agrees to reimburse the STATE for engineering costs and direct and related indirect costs incurred by the STATE associated with deleting the bid Work items from the Project, including any redesign, reengineering or re-estimating, if necessary, to delete the Work items, and the UTILITY agrees to pay such costs upon receipt of a STATE invoice. 1.6.2 The UTILITY agrees that should it reject the bid Work items for which it has cost responsibility, it shall continue to be obligated to timely relocate its facilities as required by the STATE Project. The UTILITY further agrees that should its actions delay or otherwise damage the STATE Project, it shall be liable for such costs. 2.CONSTRUCTION, INSPECTION, AND ACCEPTANCE 2.1 The STATE agrees to administer the Work on behalf of the UTILITY. 2.2 The UTILITY agrees to disconnect and/or reconnect its facilities as required by the STATE when such disconnection or reconnection is required to be performed by the UTILITY. The Parties agree to define disconnect and/or reconnection requirements, including notification and response in Exhibit A. The STATE agrees, as part of the Work, to remove disconnected and/or abandoned facilities at the UTILITY’s cost. UTILITY facilities not removed pursuant to this Agreement shall remain the ownership, operation and maintenance responsibility of the UTILITY. 2.3 Salvage: All materials removed by the STATE shall be reclaimed or disposed of by the STATE and shall become the property of the STATE. If the UTILITY desires to retain such materials and the STATE agrees, the value of salvaged materials will be paid to the STATE in an amount not less than that required by the Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects. 2.4 The UTILITY may furnish an inspector for the Work. The UTILITY agrees that it is solely responsible for all such inspection costs. The UTILITY’s inspector shall not directly contact the STATE’s contractor. All contact between the UTILITY’s inspector and the STATE’s contractor shall be through the STATE’s representatives. The STATE’s Project Construction Engineer may require the removal and/or replacement of the UTILITY’s inspector if the inspector interferes with the STATE’s Project, STATE’s contractor and/or the Work. 2.5 The STATE shall promptly notify the UTILITY in writing when the Work is completed. 2.6 The UTILITY shall, within ( ) working days of being notified that the Work is completed: (a) deliver a letter of acceptance to the STATE which shall include a release and waiver of all future claims or demands of any nature resulting from the performance of the Work and the STATE’s administration thereof, or (b) deliver to the STATE written reasons why the Work does not comply with the previously approved Plans and Special Provisions. DOT Form 224-062 EF Revised 11/10 Page 2 of 5 The UTILITY agrees to work diligently and in good faith with the STATE to resolve any issues so as not to delay the STATE’s Project. If all issues are resolved, the UTILITY agrees to deliver to the STATE a letter of acceptance as provided herein. 2.7 If the UTILITY does not respond within ( ) working days as provided in Section 2.6, the Work and the administration thereof will be deemed accepted by the UTILITY, and the STATE shall be released from all future claims and demands. 2.8 Upon completion and acceptance of the Work pursuant to Sections 2.6 or 2.7, the UTILITY agrees that it shall be solely responsible for all future ownership, operation and maintenance costs of its facilities, without STATE liability or expense. 2.9 The STATE will prepare the final construction documentation in general conformance with the STATE’s Construction Manual. The STATE will maintain one set of plans as the official "as-built" set, then make notations in red of all plan revisions typically recorded per standard STATE practice, as directed by the STATE’s Construction Manual. Once the UTILITY has accepted the Work per Section 2.6 or 2.7, the STATE upon request by the UTILITY will provide one reproducible set of contract as-builts to the UTILITY, and the UTILITY agrees to pay the cost of reproduction upon receipt of a STATE invoice 3. PAYMENT 3.1 The UTILITY agrees that it shall be responsible for the actual direct and related indirect costs, including mobilization, construction engineering, contract administration and overhead costs, associated with the Work. The cost of this Work is estimated to be Dollars ( $ ). An itemized estimate of UTILITY- responsible costs for Work to be performed by the STATE on behalf of the UTILITY is included in Exhibit B, Cost Estimate. 3.2 The UTILITY agrees to pay the STATE the “Advance Payment Amount” stated above within twenty (20) calendar days after the STATE submits its first partial payment request to the UTILITY. The advance payment represents fifteen (15) percent of the estimate of cost for which the UTILITY is responsible. The advance payment will be carried throughout the life of the Work with final adjustment made in the final invoice 3.3 The Parties acknowledge and agree that the STATE does not have the legal authority to advance state funds for the UTILITY’s Work under this Agreement. Should the UTILITY fail to make payment according to the terms of this Agreement, the STATE shall have the right to terminate this Agreement, charging the UTILITY for all associated costs of termination, including non-cancellable items, as well as associated Project delay and contractor claims. Such termination shall not relieve the UTILITY’s obligation to timely relocate its facilities as provided under Section 1.6.2 3.4 The UTILITY, in consideration of the faithful performance of the Work to be done by the STATE, agrees to pay the STATE for the actual direct and related indirect cost of all Work for which the UTILITY is responsible, including mobilization, construction engineering, administration and overhead costs. The STATE shall invoice the UTILITY and provide supporting documentation therefore, and the UTILITY agrees to pay the STATE within thirty (30) calendar days of receipt of an invoice. A partial payment will not constitute agreement as to the appropriateness of any item and that, at the time of final invoice, the Parties will resolve any discrepancies. 4. CHANGE IN WORK OR COST INCREASE 4.1 Increase in Cost: In the event unforeseen conditions require an increase in the cost of the Work for which the UTILITY is responsible, above the Exhibit B, Cost Estimate (including sales tax, engineering, and contingencies) by more than ( ) percent, the Parties agree to modify Exhibit B to include such cost increase. 4.2 If the STATE determines that additional Work or a change in the Work is required, prior written approval must be secured from the UTILITY; however, where the change is required to mitigate a Project emergency or safety threat to the traveling public, the STATE will direct the change without the UTILITY’s prior approval. The STATE will notify the UTILITY of such change as soon as possible thereafter. The UTILITY agrees to respond to all STATE change order requests in writing DOT Form 224-062 EF Revised 11/10 Page 3 of 5 and within five (5) working days. STATE notification shall not be required for UTILITY-requested changes. The UTILITY agrees to pay all costs associated with the changed Work, as well as the costs of Project or Work delays and/or subsequent contractor claims associated with the UTILITY’s failure to timely respond as required. 4.3 The UTILITY may request additions to the Work through the STATE in writing. The STATE will implement the requested changes as elective changes, provided that a change does not negatively impact the STATE’s transportation system and complies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations, and/or STATE design policies, and does not unreasonably delay critically scheduled Project contract activities. 4.4 All elective changes to the Work shall be approved in writing by the UTILITY before the STATE directs the contractor to implement the changes, even if an executed change order is not required by the Project contract. The UTILITY agrees to pay for the increases in cost, if any, for such elective changes in accordance with Section 3. 4.5 The STATE will make available to the UTILITY all change order documentation related to the Work. 5. FRANCHISE OR PERMIT 5.1 The UTILITY shall apply for a permit, franchise or an amendment to its current franchise for those new or modified UTILITY facilities that will be located within the STATE’s right of way. After receiving the application, the STATE will issue the UTILITY a permit or a new or amended franchise. 6. RIGHT OF ENTRY 6.1 The UTILITY agrees to arrange for rights of entry upon all privately owned lands upon which the UTILITY has a claimed property right and which are necessary to perform the Work. The UTILITY also agrees to obtain all necessary permissions for the STATE to perform the Work on such lands, which may include reasonable use restrictions on those lands. The UTILITY agrees to provide the rights of entry and applicable permissions under this section to the STATE within ( ) calendar days of entering into this Agreement. Upon completion of the Work on such lands, the rights of entry and permissions shall terminate. 7. GENERAL PROVISIONS 7.1 Indemnification: To the extent authorized by law, the UTILITY and STATE shall indemnify and hold harmless one another and their employees and/or officers from and shall process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages (both to persons and/or property), or costs, of whatsoever kind or nature, brought against the one Party arising out of, in connection with, or incident to the other Party’s performance or failure to perform any aspect of this Agreement, provided, however, that if such claims are caused by or result from the concurrent negligence of (a) the UTILITY and (b) the STATE, their respective employees and/or officers, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the UTILITY or STATE, and provided further, that nothing herein shall require the UTILITY or STATE to hold harmless or defend the other or its employees and/or officers from any claims arising from that Party’s sole negligence or that of its employees and/or officers. The terms of this section shall survive the termination of this Agreement. 7.2 Disputes: If a dispute occurs between the UTILITY and the STATE at any time during the prosecution of the Work, the Parties agree to negotiate at the management level to resolve any issues. Should such negotiations fail to produce a satisfactory resolution, the Parties agree to enter into arbitration and/or mediation before proceeding to any other legal remedy. Each Party shall be responsible for its own fees and costs. The Parties agree to equally share the cost of a mediator or arbiter. 7.3 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in the superior court situated in Thurston County, Washington. Each Party shall be responsible for its own attorney’s fees and costs. DOT Form 224-062 EF Revised 11/10 Page 4 of 5 7.4 Termination: 7.4.1 Unless otherwise provided herein, the UTILITY may terminate this Agreement upon thirty (30) calendar days written notice to the STATE. If this Agreement is terminated by the UTILITY prior to the fulfillment of the terms stated herein, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred up to the date of termination associated with the UTILITY Work, as well as the cost of non-cancelable obligations, including any redesign, reengineering or re-estimating, if necessary, to delete the Work, and contractor claims, if any, payment in accordance with Section 3. Further, the UTILITY acknowledges and agrees that should it terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.4.2 Unless otherwise provided herein, the STATE may terminate this Agreement upon thirty (30) calendar days written notice to the UTILITY. Should the STATE terminate this Agreement, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred by the STATE up to the date of termination associated with the UTILITY Work. The UTILITY acknowledges and agrees that should the STATE terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.5 Amendments: This Agreement may be amended by the mutual agreement of the Parties. Such amendments or modifications shall not be binding unless put in writing and signed by persons authorized to bind each of the Parties. 7.6 Independent Contractor: Both Parties shall be deemed independent contractors for all purposes, and the employees of each Party and any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be the employees of the other Party. 7.7 Audit and Records: During the progress of the Work and for a period of not less than three (3) years from the date of final payment, both Parties shall maintain the records and accounts pertaining to the Work and shall make them available during normal business hours and as often as necessary, for inspection and audit by the other Party, State of Washington, and/or Federal Government and copies of all records, accounts, documents or other data pertaining to the Work will be furnished upon request. The requesting Party shall pay the cost of copies produced. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until any litigation, claim or audit finding has been resolved even though such litigation, claim or audit continues past the three-year retention period. 7.8 Working Days: Working days for this Agreement are defined as Monday through Friday, excluding Washington State holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year last written below. STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION By Title UTILITY Date Name DOT Form 224-062 EF Revised 11/10 Page 5 of 5 By Title Date Name DOT Form 224-062 EFRevised 11/10Utility ConstructionAgreementWork by State - Utility Cost Utility Name and AddressProject Title / LocationAgreement NumberState Route RegionEstimated Agreement Amount Page 1 of 5MilepostsFromToAdvance Payment Amount$$This Utility Construction Agreement is made and entered into between the State of Washington Department of Transportation, herein(STATE) and the above named UTILITY.WHEREAS, the STATE is planning the construction or improvement of the State Route as shown above for the listed STATE Project, and in connection therewith, it is necessary to remove and/or relocate and/or construct certain UTILITY facilities, herein the (Work),andWHEREAS, the UTILITY is responsible for (1) the cost of the Work for UTILITY facilities located without a documented ownership ofand/or interest in real property, such as being located pursuant to a franchise, a permit, or undocumented permission, (2) allbetterments, and (3) new facilities, andWHEREAS, the Work shall be defined as all materials, equipment, labor, contract administration and any other efforts required toperform the relocation, construction, and/or removal of the UTILITY’s facilities, and WHEREAS, the Work includes o Betterments; o Relocation of Facilities with Property Rights; o Facilities without PropertyRights; o Installation of New Facilities; o Removal of Existing Facilities from the STATE right of way, andWHEREAS, it is deemed to be in the best public interest for the STATE to include the Work in the STATE’s Project,NOW, THEREFORE, pursuant to RCW 47.01.210 and chapter 47.44 RCW and in consideration of the terms, conditions, covenants,and performances contained herein, as well as the attached Exhibits which are incorporated and made a part hereof,IT IS MUTUALLY AGREED AS FOLLOWS: 1. PLANS, SPECIFICATIONS AND BIDS1.1 Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects shall determine and establish thedefinitions and applicable standards and payments for this Agreement. By this reference this document is adopted andmade a part of this Agreement as if fully contained herein. 1.2 Betterment: A betterment is any improvement to the UTILITY’s facilities not required by code, regulation, standard industrypractice, or any other applicable regulation. If any of the Work constitutes a betterment as defined in the Program Guide:Utility Relocation and Accommodation on Federal Aid Highway Projects , the UTILITY is solely responsible for the costs of such improvement.1.3 The STATE, acting on behalf of the UTILITY, agrees to perform the UTILITY facilities Work in accordance with Exhibit A,Special Provisions, and Exhibit C, Plans, where either: (1) UTILITY supplied the Work plans and special provisions to theSTATE, or (2) STATE developed the Work plans and special provisions from UTILITY-provided information. The STATE will incorporate the Plans and Special Provisions into the STATE Project in accordance with UTILITYrequirements. The UTILITY agrees that it is solely responsible for insuring that all Special Provisions, Plans and UTILITYstandards are met and that it has supplied the STATE with all applicable standards, codes, regulations, or any otherrequirements the UTILITY is obligated to meet, unless otherwise noted.1.4 The UTILITY has reviewed and approved the Work Special Provisions and Plans that will be incorporated into the STATEProject. The STATE will advertise the Work and Project for bids. The STATE will be the UTILITY’s representative during theAd and award period. When requested by the STATE, the UTILITY shall timely assist the STATE in answering bid questionsand resolving any design issues that may arise associated with the Work. All comments and clarifications must go throughthe STATE. If the UTILITY supplied the Work plans and special provisions, the UTILITY agrees to provide the STATE withany addenda required for the Work during the Ad period, to the Parties’ mutual satisfaction.1.5 The STATE will provide the UTILITY with written notification of the bid price no later than five (5) days after award for allWork items for which the UTILITY is responsible for the cost. The UTILITY shall respond in writing to the STATE, stating itsAcceptance or Rejection of the Work items, within two (2) working days. 1.6 Should the UTILITY reject the bid Work items for which it has cost responsibility:1.6.1 The STATE shall delete said items from the Project. The UTILITY agrees to reimburse the STATE for engineeringcosts and direct and related indirect costs incurred by the STATE associated with deleting the bid Work items fromthe Project, including any redesign, reengineering or re-estimating, if necessary, to delete the Work items, and theUTILITY agrees to pay such costs upon receipt of a STATE invoice.1.6.2 The UTILITY agrees that should it reject the bid Work items for which it has cost responsibility, it shall continue tobe obligated to timely relocate its facilities as required by the STATE Project. The UTILITY further agrees thatshould its actions delay or otherwise damage the STATE Project, it shall be liable for such costs.2.CONSTRUCTION, INSPECTION, AND ACCEPTANCE 2.1 The STATE agrees to administer the Work on behalf of the UTILITY.2.2 The UTILITY agrees to disconnect and/or reconnect its facilities as required by the STATE when such disconnection orreconnection is required to be performed by the UTILITY. The Parties agree to define disconnect and/or reconnectionrequirements, including notification and response in Exhibit A. The STATE agrees, as part of the Work, to removedisconnected and/or abandoned facilities at the UTILITY’s cost. UTILITY facilities not removed pursuant to this Agreementshall remain the ownership, operation and maintenance responsibility of the UTILITY.2.3 Salvage: All materials removed by the STATE shall be reclaimed or disposed of by the STATE and shall become theproperty of the STATE. If the UTILITY desires to retain such materials and the STATE agrees, the value of salvagedmaterials will be paid to the STATE in an amount not less than that required by the Program Guide: Utility Relocation andAccommodation on Federal Aid Highway Projects.2.4 The UTILITY may furnish an inspector for the Work. The UTILITY agrees that it is solely responsible for all such inspectioncosts. The UTILITY’s inspector shall not directly contact the STATE’s contractor. All contact between the UTILITY’s inspector and the STATE’s contractor shall be through the STATE’s representatives. The STATE’s Project Construction Engineer may require the removal and/or replacement of the UTILITY’s inspector if the inspector interferes with the STATE’sProject, STATE’s contractor and/or the Work.2.5 The STATE shall promptly notify the UTILITY in writing when the Work is completed.2.6 The UTILITY shall, within ( ) working days of being notified that the Work is completed: (a) delivera letter of acceptance to the STATE which shall include a release and waiver of all future claims or demands of any natureresulting from the performance of the Work and the STATE’s administration thereof, or (b) deliver to the STATE writtenreasons why the Work does not comply with the previously approved Plans and Special Provisions.DOT Form 224-062 EFRevised 11/10 Page 2 of 5 The UTILITY agrees to work diligently and in good faith with the STATE to resolve any issues so as not to delay the STATE’s Project. If all issues are resolved, the UTILITY agrees to deliver to the STATE a letter of acceptance as provided herein. 2.7 If the UTILITY does not respond within ( ) working days as provided in Section 2.6, the Work and the administration thereof will be deemed accepted by the UTILITY, and the STATE shall be released from all future claims and demands. 2.8 Upon completion and acceptance of the Work pursuant to Sections 2.6 or 2.7, the UTILITY agrees that it shall be solely responsible for all future ownership, operation and maintenance costs of its facilities, without STATE liability or expense. 2.9 The STATE will prepare the final construction documentation in general conformance with the STATE’s Construction Manual. The STATE will maintain one set of plans as the official "as-built" set, then make notations in red of all plan revisions typically recorded per standard STATE practice, as directed by the STATE’s Construction Manual. Once the UTILITY has accepted the Work per Section 2.6 or 2.7, the STATE upon request by the UTILITY will provide one reproducible set of contract as-builts to the UTILITY, and the UTILITY agrees to pay the cost of reproduction upon receipt of a STATE invoice 3. PAYMENT 3.1 The UTILITY agrees that it shall be responsible for the actual direct and related indirect costs, including mobilization, construction engineering, contract administration and overhead costs, associated with the Work. The cost of this Work is estimated to be Dollars ( $ ). An itemized estimate of UTILITY- responsible costs for Work to be performed by the STATE on behalf of the UTILITY is included in Exhibit B, Cost Estimate. 3.2 The UTILITY agrees to pay the STATE the “Advance Payment Amount” stated above within twenty (20) calendar days after the STATE submits its first partial payment request to the UTILITY. The advance payment represents fifteen (15) percent of the estimate of cost for which the UTILITY is responsible. The advance payment will be carried throughout the life of the Work with final adjustment made in the final invoice 3.3 The Parties acknowledge and agree that the STATE does not have the legal authority to advance state funds for the UTILITY’s Work under this Agreement. Should the UTILITY fail to make payment according to the terms of this Agreement, the STATE shall have the right to terminate this Agreement, charging the UTILITY for all associated costs of termination, including non-cancellable items, as well as associated Project delay and contractor claims. Such termination shall not relieve the UTILITY’s obligation to timely relocate its facilities as provided under Section 1.6.2 3.4 The UTILITY, in consideration of the faithful performance of the Work to be done by the STATE, agrees to pay the STATE for the actual direct and related indirect cost of all Work for which the UTILITY is responsible, including mobilization, construction engineering, administration and overhead costs. The STATE shall invoice the UTILITY and provide supporting documentation therefore, and the UTILITY agrees to pay the STATE within thirty (30) calendar days of receipt of an invoice. A partial payment will not constitute agreement as to the appropriateness of any item and that, at the time of final invoice, the Parties will resolve any discrepancies. 4. CHANGE IN WORK OR COST INCREASE 4.1 Increase in Cost: In the event unforeseen conditions require an increase in the cost of the Work for which the UTILITY is responsible, above the Exhibit B, Cost Estimate (including sales tax, engineering, and contingencies) by more than ( ) percent, the Parties agree to modify Exhibit B to include such cost increase. 4.2 If the STATE determines that additional Work or a change in the Work is required, prior written approval must be secured from the UTILITY; however, where the change is required to mitigate a Project emergency or safety threat to the traveling public, the STATE will direct the change without the UTILITY’s prior approval. The STATE will notify the UTILITY of such change as soon as possible thereafter. The UTILITY agrees to respond to all STATE change order requests in writing DOT Form 224-062 EF Revised 11/10 Page 3 of 5 and within five (5) working days. STATE notification shall not be required for UTILITY-requested changes. The UTILITY agrees to pay all costs associated with the changed Work, as well as the costs of Project or Work delays and/or subsequent contractor claims associated with the UTILITY’s failure to timely respond as required. 4.3 The UTILITY may request additions to the Work through the STATE in writing. The STATE will implement the requested changes as elective changes, provided that a change does not negatively impact the STATE’s transportation system and complies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations, and/or STATE design policies, and does not unreasonably delay critically scheduled Project contract activities. 4.4 All elective changes to the Work shall be approved in writing by the UTILITY before the STATE directs the contractor to implement the changes, even if an executed change order is not required by the Project contract. The UTILITY agrees to pay for the increases in cost, if any, for such elective changes in accordance with Section 3. 4.5 The STATE will make available to the UTILITY all change order documentation related to the Work. 5. FRANCHISE OR PERMIT 5.1 The UTILITY shall apply for a permit, franchise or an amendment to its current franchise for those new or modified UTILITY facilities that will be located within the STATE’s right of way. After receiving the application, the STATE will issue the UTILITY a permit or a new or amended franchise. 6. RIGHT OF ENTRY 6.1 The UTILITY agrees to arrange for rights of entry upon all privately owned lands upon which the UTILITY has a claimed property right and which are necessary to perform the Work. The UTILITY also agrees to obtain all necessary permissions for the STATE to perform the Work on such lands, which may include reasonable use restrictions on those lands. The UTILITY agrees to provide the rights of entry and applicable permissions under this section to the STATE within ( ) calendar days of entering into this Agreement. Upon completion of the Work on such lands, the rights of entry and permissions shall terminate. 7. GENERAL PROVISIONS 7.1 Indemnification: To the extent authorized by law, the UTILITY and STATE shall indemnify and hold harmless one another and their employees and/or officers from and shall process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages (both to persons and/or property), or costs, of whatsoever kind or nature, brought against the one Party arising out of, in connection with, or incident to the other Party’s performance or failure to perform any aspect of this Agreement, provided, however, that if such claims are caused by or result from the concurrent negligence of (a) the UTILITY and (b) the STATE, their respective employees and/or officers, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the UTILITY or STATE, and provided further, that nothing herein shall require the UTILITY or STATE to hold harmless or defend the other or its employees and/or officers from any claims arising from that Party’s sole negligence or that of its employees and/or officers. The terms of this section shall survive the termination of this Agreement. 7.2 Disputes: If a dispute occurs between the UTILITY and the STATE at any time during the prosecution of the Work, the Parties agree to negotiate at the management level to resolve any issues. Should such negotiations fail to produce a satisfactory resolution, the Parties agree to enter into arbitration and/or mediation before proceeding to any other legal remedy. Each Party shall be responsible for its own fees and costs. The Parties agree to equally share the cost of a mediator or arbiter. 7.3 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in the superior court situated in Thurston County, Washington. Each Party shall be responsible for its own attorney’s fees and costs. DOT Form 224-062 EF Revised 11/10 Page 4 of 5 7.4 Termination: 7.4.1 Unless otherwise provided herein, the UTILITY may terminate this Agreement upon thirty (30) calendar days written notice to the STATE. If this Agreement is terminated by the UTILITY prior to the fulfillment of the terms stated herein, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred up to the date of termination associated with the UTILITY Work, as well as the cost of non-cancelable obligations, including any redesign, reengineering or re-estimating, if necessary, to delete the Work, and contractor claims, if any, payment in accordance with Section 3. Further, the UTILITY acknowledges and agrees that should it terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.4.2 Unless otherwise provided herein, the STATE may terminate this Agreement upon thirty (30) calendar days written notice to the UTILITY. Should the STATE terminate this Agreement, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred by the STATE up to the date of termination associated with the UTILITY Work. The UTILITY acknowledges and agrees that should the STATE terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.5 Amendments: This Agreement may be amended by the mutual agreement of the Parties. Such amendments or modifications shall not be binding unless put in writing and signed by persons authorized to bind each of the Parties. 7.6 Independent Contractor: Both Parties shall be deemed independent contractors for all purposes, and the employees of each Party and any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be the employees of the other Party. 7.7 Audit and Records: During the progress of the Work and for a period of not less than three (3) years from the date of final payment, both Parties shall maintain the records and accounts pertaining to the Work and shall make them available during normal business hours and as often as necessary, for inspection and audit by the other Party, State of Washington, and/or Federal Government and copies of all records, accounts, documents or other data pertaining to the Work will be furnished upon request. The requesting Party shall pay the cost of copies produced. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until any litigation, claim or audit finding has been resolved even though such litigation, claim or audit continues past the three-year retention period. 7.8 Working Days: Working days for this Agreement are defined as Monday through Friday, excluding Washington State holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year last written below. STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION By Title UTILITY Date Name DOT Form 224-062 EF Revised 11/10 Page 5 of 5 By Title Date Name DOT Form 224-062 EFRevised 11/10Utility ConstructionAgreementWork by State - Utility Cost Utility Name and AddressProject Title / LocationAgreement NumberState Route RegionEstimated Agreement Amount Page 1 of 5MilepostsFromToAdvance Payment Amount$$This Utility Construction Agreement is made and entered into between the State of Washington Department of Transportation, herein(STATE) and the above named UTILITY.WHEREAS, the STATE is planning the construction or improvement of the State Route as shown above for the listed STATE Project, and in connection therewith, it is necessary to remove and/or relocate and/or construct certain UTILITY facilities, herein the (Work),andWHEREAS, the UTILITY is responsible for (1) the cost of the Work for UTILITY facilities located without a documented ownership ofand/or interest in real property, such as being located pursuant to a franchise, a permit, or undocumented permission, (2) allbetterments, and (3) new facilities, andWHEREAS, the Work shall be defined as all materials, equipment, labor, contract administration and any other efforts required toperform the relocation, construction, and/or removal of the UTILITY’s facilities, and WHEREAS, the Work includes o Betterments; o Relocation of Facilities with Property Rights; o Facilities without PropertyRights; o Installation of New Facilities; o Removal of Existing Facilities from the STATE right of way, andWHEREAS, it is deemed to be in the best public interest for the STATE to include the Work in the STATE’s Project,NOW, THEREFORE, pursuant to RCW 47.01.210 and chapter 47.44 RCW and in consideration of the terms, conditions, covenants,and performances contained herein, as well as the attached Exhibits which are incorporated and made a part hereof,IT IS MUTUALLY AGREED AS FOLLOWS: 1. PLANS, SPECIFICATIONS AND BIDS1.1 Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects shall determine and establish thedefinitions and applicable standards and payments for this Agreement. By this reference this document is adopted andmade a part of this Agreement as if fully contained herein. 1.2 Betterment: A betterment is any improvement to the UTILITY’s facilities not required by code, regulation, standard industrypractice, or any other applicable regulation. If any of the Work constitutes a betterment as defined in the Program Guide:Utility Relocation and Accommodation on Federal Aid Highway Projects , the UTILITY is solely responsible for the costs of such improvement.1.3 The STATE, acting on behalf of the UTILITY, agrees to perform the UTILITY facilities Work in accordance with Exhibit A,Special Provisions, and Exhibit C, Plans, where either: (1) UTILITY supplied the Work plans and special provisions to theSTATE, or (2) STATE developed the Work plans and special provisions from UTILITY-provided information. The STATE will incorporate the Plans and Special Provisions into the STATE Project in accordance with UTILITYrequirements. The UTILITY agrees that it is solely responsible for insuring that all Special Provisions, Plans and UTILITYstandards are met and that it has supplied the STATE with all applicable standards, codes, regulations, or any otherrequirements the UTILITY is obligated to meet, unless otherwise noted.1.4 The UTILITY has reviewed and approved the Work Special Provisions and Plans that will be incorporated into the STATEProject. The STATE will advertise the Work and Project for bids. The STATE will be the UTILITY’s representative during theAd and award period. When requested by the STATE, the UTILITY shall timely assist the STATE in answering bid questionsand resolving any design issues that may arise associated with the Work. All comments and clarifications must go throughthe STATE. If the UTILITY supplied the Work plans and special provisions, the UTILITY agrees to provide the STATE withany addenda required for the Work during the Ad period, to the Parties’ mutual satisfaction.1.5 The STATE will provide the UTILITY with written notification of the bid price no later than five (5) days after award for allWork items for which the UTILITY is responsible for the cost. The UTILITY shall respond in writing to the STATE, stating itsAcceptance or Rejection of the Work items, within two (2) working days. 1.6 Should the UTILITY reject the bid Work items for which it has cost responsibility:1.6.1 The STATE shall delete said items from the Project. The UTILITY agrees to reimburse the STATE for engineeringcosts and direct and related indirect costs incurred by the STATE associated with deleting the bid Work items fromthe Project, including any redesign, reengineering or re-estimating, if necessary, to delete the Work items, and theUTILITY agrees to pay such costs upon receipt of a STATE invoice.1.6.2 The UTILITY agrees that should it reject the bid Work items for which it has cost responsibility, it shall continue tobe obligated to timely relocate its facilities as required by the STATE Project. The UTILITY further agrees thatshould its actions delay or otherwise damage the STATE Project, it shall be liable for such costs.2.CONSTRUCTION, INSPECTION, AND ACCEPTANCE2.1 The STATE agrees to administer the Work on behalf of the UTILITY.2.2 The UTILITY agrees to disconnect and/or reconnect its facilities as required by the STATE when such disconnection orreconnection is required to be performed by the UTILITY. The Parties agree to define disconnect and/or reconnectionrequirements, including notification and response in Exhibit A. The STATE agrees, as part of the Work, to removedisconnected and/or abandoned facilities at the UTILITY’s cost. UTILITY facilities not removed pursuant to this Agreementshall remain the ownership, operation and maintenance responsibility of the UTILITY.2.3 Salvage: All materials removed by the STATE shall be reclaimed or disposed of by the STATE and shall become theproperty of the STATE. If the UTILITY desires to retain such materials and the STATE agrees, the value of salvagedmaterials will be paid to the STATE in an amount not less than that required by the Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects. 2.4 The UTILITY may furnish an inspector for the Work. The UTILITY agrees that it is solely responsible for all such inspectioncosts. The UTILITY’s inspector shall not directly contact the STATE’s contractor. All contact between the UTILITY’s inspector and the STATE’s contractor shall be through the STATE’s representatives. The STATE’s Project ConstructionEngineer may require the removal and/or replacement of the UTILITY’s inspector if the inspector interferes with the STATE’sProject, STATE’s contractor and/or the Work.2.5 The STATE shall promptly notify the UTILITY in writing when the Work is completed.2.6 The UTILITY shall, within ( ) working days of being notified that the Work is completed: (a) delivera letter of acceptance to the STATE which shall include a release and waiver of all future claims or demands of any natureresulting from the performance of the Work and the STATE’s administration thereof, or (b) deliver to the STATE writtenreasons why the Work does not comply with the previously approved Plans and Special Provisions.DOT Form 224-062 EF Revised 11/10 Page 2 of 5The UTILITY agrees to work diligently and in good faith with the STATE to resolve any issues so as not to delay the STATE’sProject. If all issues are resolved, the UTILITY agrees to deliver to the STATE a letter of acceptance as provided herein.2.7 If the UTILITY does not respond within ( ) working days as provided in Section 2.6, the Work andthe administration thereof will be deemed accepted by the UTILITY, and the STATE shall be released from all future claimsand demands.2.8 Upon completion and acceptance of the Work pursuant to Sections 2.6 or 2.7, the UTILITY agrees that it shall be solely responsible for all future ownership, operation and maintenance costs of its facilities, without STATE liability or expense.2.9 The STATE will prepare the final construction documentation in general conformance with the STATE’s ConstructionManual. The STATE will maintain one set of plans as the official "as-built" set, then make notations in red of all planrevisions typically recorded per standard STATE practice, as directed by the STATE’s Construction Manual. Once theUTILITY has accepted the Work per Section 2.6 or 2.7, the STATE upon request by the UTILITY will provide onereproducible set of contract as-builts to the UTILITY, and the UTILITY agrees to pay the cost of reproduction upon receipt ofa STATE invoice 3. PAYMENT3.1 The UTILITY agrees that it shall be responsible for the actual direct and related indirect costs, including mobilization,construction engineering, contract administration and overhead costs, associated with the Work. The cost of this Work isestimated to be Dollars ( $ ). An itemized estimate of UTILITY-responsible costs for Work to be performed by the STATE on behalf of the UTILITY is included in Exhibit B, Cost Estimate.3.2 The UTILITY agrees to pay the STATE the “Advance Payment Amount” stated above within twenty (20) calendar days afterthe STATE submits its first partial payment request to the UTILITY. The advance payment represents fifteen (15) percent ofthe estimate of cost for which the UTILITY is responsible. The advance payment will be carried throughout the life of theWork with final adjustment made in the final invoice3.3 The Parties acknowledge and agree that the STATE does not have the legal authority to advance state funds for theUTILITY’s Work under this Agreement. Should the UTILITY fail to make payment according to the terms of this Agreement,the STATE shall have the right to terminate this Agreement, charging the UTILITY for all associated costs of termination,including non-cancellable items, as well as associated Project delay and contractor claims. Such termination shall not relievethe UTILITY’s obligation to timely relocate its facilities as provided under Section 1.6.2 3.4 The UTILITY, in consideration of the faithful performance of the Work to be done by the STATE, agrees to pay the STATEfor the actual direct and related indirect cost of all Work for which the UTILITY is responsible, including mobilization,construction engineering, administration and overhead costs. The STATE shall invoice the UTILITY and provide supportingdocumentation therefore, and the UTILITY agrees to pay the STATE within thirty (30) calendar days of receipt of an invoice.A partial payment will not constitute agreement as to the appropriateness of any item and that, at the time of final invoice, theParties will resolve any discrepancies.4. CHANGE IN WORK OR COST INCREASE4.1 Increase in Cost: In the event unforeseen conditions require an increase in the cost of the Work for which theUTILITY is responsible, above the Exhibit B, Cost Estimate (including sales tax, engineering, and contingencies) bymore than ( ) percent, the Parties agree to modify Exhibit B to include suchcost increase.4.2 If the STATE determines that additional Work or a change in the Work is required, prior written approval must be securedfrom the UTILITY; however, where the change is required to mitigate a Project emergency or safety threat to the travelingpublic, the STATE will direct the change without the UTILITY’s prior approval. The STATE will notify the UTILITY of suchchange as soon as possible thereafter. The UTILITY agrees to respond to all STATE change order requests in writingDOTForm 224-062 EFRevised 11/10 Page 3 of 5 and within five (5) working days. STATE notification shall not be required for UTILITY-requested changes. The UTILITY agrees to pay all costs associated with the changed Work, as well as the costs of Project or Work delays and/or subsequent contractor claims associated with the UTILITY’s failure to timely respond as required. 4.3 The UTILITY may request additions to the Work through the STATE in writing. The STATE will implement the requested changes as elective changes, provided that a change does not negatively impact the STATE’s transportation system and complies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations, and/or STATE design policies, and does not unreasonably delay critically scheduled Project contract activities. 4.4 All elective changes to the Work shall be approved in writing by the UTILITY before the STATE directs the contractor to implement the changes, even if an executed change order is not required by the Project contract. The UTILITY agrees to pay for the increases in cost, if any, for such elective changes in accordance with Section 3. 4.5 The STATE will make available to the UTILITY all change order documentation related to the Work. 5. FRANCHISE OR PERMIT 5.1 The UTILITY shall apply for a permit, franchise or an amendment to its current franchise for those new or modified UTILITY facilities that will be located within the STATE’s right of way. After receiving the application, the STATE will issue the UTILITY a permit or a new or amended franchise. 6. RIGHT OF ENTRY 6.1 The UTILITY agrees to arrange for rights of entry upon all privately owned lands upon which the UTILITY has a claimed property right and which are necessary to perform the Work. The UTILITY also agrees to obtain all necessary permissions for the STATE to perform the Work on such lands, which may include reasonable use restrictions on those lands. The UTILITY agrees to provide the rights of entry and applicable permissions under this section to the STATE within ( ) calendar days of entering into this Agreement. Upon completion of the Work on such lands, the rights of entry and permissions shall terminate. 7. GENERAL PROVISIONS 7.1 Indemnification: To the extent authorized by law, the UTILITY and STATE shall indemnify and hold harmless one another and their employees and/or officers from and shall process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages (both to persons and/or property), or costs, of whatsoever kind or nature, brought against the one Party arising out of, in connection with, or incident to the other Party’s performance or failure to perform any aspect of this Agreement, provided, however, that if such claims are caused by or result from the concurrent negligence of (a) the UTILITY and (b) the STATE, their respective employees and/or officers, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the UTILITY or STATE, and provided further, that nothing herein shall require the UTILITY or STATE to hold harmless or defend the other or its employees and/or officers from any claims arising from that Party’s sole negligence or that of its employees and/or officers. The terms of this section shall survive the termination of this Agreement. 7.2 Disputes: If a dispute occurs between the UTILITY and the STATE at any time during the prosecution of the Work, the Parties agree to negotiate at the management level to resolve any issues. Should such negotiations fail to produce a satisfactory resolution, the Parties agree to enter into arbitration and/or mediation before proceeding to any other legal remedy. Each Party shall be responsible for its own fees and costs. The Parties agree to equally share the cost of a mediator or arbiter. 7.3 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in the superior court situated in Thurston County, Washington. Each Party shall be responsible for its own attorney’s fees and costs. DOT Form 224-062 EF Revised 11/10 Page 4 of 5 7.4 Termination: 7.4.1 Unless otherwise provided herein, the UTILITY may terminate this Agreement upon thirty (30) calendar days written notice to the STATE. If this Agreement is terminated by the UTILITY prior to the fulfillment of the terms stated herein, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred up to the date of termination associated with the UTILITY Work, as well as the cost of non-cancelable obligations, including any redesign, reengineering or re-estimating, if necessary, to delete the Work, and contractor claims, if any, payment in accordance with Section 3. Further, the UTILITY acknowledges and agrees that should it terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.4.2 Unless otherwise provided herein, the STATE may terminate this Agreement upon thirty (30) calendar days written notice to the UTILITY. Should the STATE terminate this Agreement, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred by the STATE up to the date of termination associated with the UTILITY Work. The UTILITY acknowledges and agrees that should the STATE terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.5 Amendments: This Agreement may be amended by the mutual agreement of the Parties. Such amendments or modifications shall not be binding unless put in writing and signed by persons authorized to bind each of the Parties. 7.6 Independent Contractor: Both Parties shall be deemed independent contractors for all purposes, and the employees of each Party and any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be the employees of the other Party. 7.7 Audit and Records: During the progress of the Work and for a period of not less than three (3) years from the date of final payment, both Parties shall maintain the records and accounts pertaining to the Work and shall make them available during normal business hours and as often as necessary, for inspection and audit by the other Party, State of Washington, and/or Federal Government and copies of all records, accounts, documents or other data pertaining to the Work will be furnished upon request. The requesting Party shall pay the cost of copies produced. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until any litigation, claim or audit finding has been resolved even though such litigation, claim or audit continues past the three-year retention period. 7.8 Working Days: Working days for this Agreement are defined as Monday through Friday, excluding Washington State holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year last written below. STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION By Title UTILITY Date Name DOT Form 224-062 EF Revised 11/10 Page 5 of 5 By Title Date Name DOT Form 224-062 EFRevised 11/10Utility ConstructionAgreementWork by State - Utility Cost Utility Name and AddressProject Title / LocationAgreement NumberState Route RegionEstimated Agreement Amount Page 1 of 5MilepostsFromToAdvance Payment Amount$$This Utility Construction Agreement is made and entered into between the State of Washington Department of Transportation, herein(STATE) and the above named UTILITY.WHEREAS, the STATE is planning the construction or improvement of the State Route as shown above for the listed STATE Project, and in connection therewith, it is necessary to remove and/or relocate and/or construct certain UTILITY facilities, herein the (Work),andWHEREAS, the UTILITY is responsible for (1) the cost of the Work for UTILITY facilities located without a documented ownership ofand/or interest in real property, such as being located pursuant to a franchise, a permit, or undocumented permission, (2) allbetterments, and (3) new facilities, andWHEREAS, the Work shall be defined as all materials, equipment, labor, contract administration and any other efforts required toperform the relocation, construction, and/or removal of the UTILITY’s facilities, and WHEREAS, the Work includes o Betterments; o Relocation of Facilities with Property Rights; o Facilities without PropertyRights; o Installation of New Facilities; o Removal of Existing Facilities from the STATE right of way, andWHEREAS, it is deemed to be in the best public interest for the STATE to include the Work in the STATE’s Project,NOW, THEREFORE, pursuant to RCW 47.01.210 and chapter 47.44 RCW and in consideration of the terms, conditions, covenants,and performances contained herein, as well as the attached Exhibits which are incorporated and made a part hereof,IT IS MUTUALLY AGREED AS FOLLOWS:1. PLANS, SPECIFICATIONS AND BIDS1.1 Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects shall determine and establish thedefinitions and applicable standards and payments for this Agreement. By this reference this document is adopted andmade a part of this Agreement as if fully contained herein. 1.2 Betterment: A betterment is any improvement to the UTILITY’s facilities not required by code, regulation, standard industrypractice, or any other applicable regulation. If any of the Work constitutes a betterment as defined in the Program Guide:Utility Relocation and Accommodation on Federal Aid Highway Projects , the UTILITY is solely responsible for the costs of such improvement.1.3 The STATE, acting on behalf of the UTILITY, agrees to perform the UTILITY facilities Work in accordance with Exhibit A,Special Provisions, and Exhibit C, Plans, where either: (1) UTILITY supplied the Work plans and special provisions to theSTATE, or (2) STATE developed the Work plans and special provisions from UTILITY-provided information. The STATE will incorporate the Plans and Special Provisions into the STATE Project in accordance with UTILITYrequirements. The UTILITY agrees that it is solely responsible for insuring that all Special Provisions, Plans and UTILITYstandards are met and that it has supplied the STATE with all applicable standards, codes, regulations, or any otherrequirements the UTILITY is obligated to meet, unless otherwise noted.1.4 The UTILITY has reviewed and approved the Work Special Provisions and Plans that will be incorporated into the STATEProject. The STATE will advertise the Work and Project for bids. The STATE will be the UTILITY’s representative during theAd and award period. When requested by the STATE, the UTILITY shall timely assist the STATE in answering bid questionsand resolving any design issues that may arise associated with the Work. All comments and clarifications must go throughthe STATE. If the UTILITY supplied the Work plans and special provisions, the UTILITY agrees to provide the STATE withany addenda required for the Work during the Ad period, to the Parties’ mutual satisfaction.1.5 The STATE will provide the UTILITY with written notification of the bid price no later than five (5) days after award for allWork items for which the UTILITY is responsible for the cost. The UTILITY shall respond in writing to the STATE, stating itsAcceptance or Rejection of the Work items, within two (2) working days.1.6 Should the UTILITY reject the bid Work items for which it has cost responsibility:1.6.1 The STATE shall delete said items from the Project. The UTILITY agrees to reimburse the STATE for engineeringcosts and direct and related indirect costs incurred by the STATE associated with deleting the bid Work items fromthe Project, including any redesign, reengineering or re-estimating, if necessary, to delete the Work items, and theUTILITY agrees to pay such costs upon receipt of a STATE invoice.1.6.2 The UTILITY agrees that should it reject the bid Work items for which it has cost responsibility, it shall continue tobe obligated to timely relocate its facilities as required by the STATE Project. The UTILITY further agrees thatshould its actions delay or otherwise damage the STATE Project, it shall be liable for such costs.2.CONSTRUCTION, INSPECTION, AND ACCEPTANCE 2.1 The STATE agrees to administer the Work on behalf of the UTILITY.2.2 The UTILITY agrees to disconnect and/or reconnect its facilities as required by the STATE when such disconnection orreconnection is required to be performed by the UTILITY. The Parties agree to define disconnect and/or reconnectionrequirements, including notification and response in Exhibit A. The STATE agrees, as part of the Work, to removedisconnected and/or abandoned facilities at the UTILITY’s cost. UTILITY facilities not removed pursuant to this Agreementshall remain the ownership, operation and maintenance responsibility of the UTILITY.2.3 Salvage: All materials removed by the STATE shall be reclaimed or disposed of by the STATE and shall become theproperty of the STATE. If the UTILITY desires to retain such materials and the STATE agrees, the value of salvagedmaterials will be paid to the STATE in an amount not less than that required by the Program Guide: Utility Relocation andAccommodation on Federal Aid Highway Projects.2.4 The UTILITY may furnish an inspector for the Work. The UTILITY agrees that it is solely responsible for all such inspectioncosts. The UTILITY’s inspector shall not directly contact the STATE’s contractor. All contact between the UTILITY’s inspector and the STATE’s contractor shall be through the STATE’s representatives. The STATE’s Project Construction Engineer may require the removal and/or replacement of the UTILITY’s inspector if the inspector interferes with the STATE’sProject, STATE’s contractor and/or the Work.2.5 The STATE shall promptly notify the UTILITY in writing when the Work is completed.2.6 The UTILITY shall, within ( ) working days of being notified that the Work is completed: (a) delivera letter of acceptance to the STATE which shall include a release and waiver of all future claims or demands of any natureresulting from the performance of the Work and the STATE’s administration thereof, or (b) deliver to the STATE writtenreasons why the Work does not comply with the previously approved Plans and Special Provisions.DOT Form 224-062 EFRevised 11/10 Page 2 of 5The UTILITY agrees to work diligently and in good faith with the STATE to resolve any issues so as not to delay the STATE’sProject. If all issues are resolved, the UTILITY agrees to deliver to the STATE a letter of acceptance as provided herein.2.7 If the UTILITY does not respond within ( ) working days as provided in Section 2.6, the Work andthe administration thereof will be deemed accepted by the UTILITY, and the STATE shall be released from all future claimsand demands.2.8 Upon completion and acceptance of the Work pursuant to Sections 2.6 or 2.7, the UTILITY agrees that it shall be solely responsible for all future ownership, operation and maintenance costs of its facilities, without STATE liability or expense.2.9 The STATE will prepare the final construction documentation in general conformance with the STATE’s ConstructionManual. The STATE will maintain one set of plans as the official "as-built" set, then make notations in red of all planrevisions typically recorded per standard STATE practice, as directed by the STATE’s Construction Manual. Once theUTILITY has accepted the Work per Section 2.6 or 2.7, the STATE upon request by the UTILITY will provide onereproducible set of contract as-builts to the UTILITY, and the UTILITY agrees to pay the cost of reproduction upon receipt ofa STATE invoice 3. PAYMENT3.1 The UTILITY agrees that it shall be responsible for the actual direct and related indirect costs, including mobilization,construction engineering, contract administration and overhead costs, associated with the Work. The cost of this Work isestimated to be Dollars ( $ ). An itemized estimate of UTILITY-responsible costs for Work to be performed by the STATE on behalf of the UTILITY is included in Exhibit B, Cost Estimate.3.2 The UTILITY agrees to pay the STATE the “Advance Payment Amount” stated above within twenty (20) calendar days after the STATE submits its first partial payment request to the UTILITY. The advance payment represents fifteen (15) percent ofthe estimate of cost for which the UTILITY is responsible. The advance payment will be carried throughout the life of theWork with final adjustment made in the final invoice3.3 The Parties acknowledge and agree that the STATE does not have the legal authority to advance state funds for theUTILITY’s Work under this Agreement. Should the UTILITY fail to make payment according to the terms of this Agreement, the STATE shall have the right to terminate this Agreement, charging the UTILITY for all associated costs of termination,including non-cancellable items, as well as associated Project delay and contractor claims. Such termination shall not relievethe UTILITY’s obligation to timely relocate its facilities as provided under Section 1.6.2 3.4 The UTILITY, in consideration of the faithful performance of the Work to be done by the STATE, agrees to pay the STATEfor the actual direct and related indirect cost of all Work for which the UTILITY is responsible, including mobilization,construction engineering, administration and overhead costs. The STATE shall invoice the UTILITY and provide supportingdocumentation therefore, and the UTILITY agrees to pay the STATE within thirty (30) calendar days of receipt of an invoice.A partial payment will not constitute agreement as to the appropriateness of any item and that, at the time of final invoice, theParties will resolve any discrepancies.4. CHANGE IN WORK OR COST INCREASE4.1 Increase in Cost: In the event unforeseen conditions require an increase in the cost of the Work for which theUTILITY is responsible, above the Exhibit B, Cost Estimate (including sales tax, engineering, and contingencies) bymore than ( ) percent, the Parties agree to modify Exhibit B to include suchcost increase.4.2 If the STATE determines that additional Work or a change in the Work is required, prior written approval must be securedfrom the UTILITY; however, where the change is required to mitigate a Project emergency or safety threat to the travelingpublic, the STATE will direct the change without the UTILITY’s prior approval. The STATE will notify the UTILITY of suchchange as soon as possible thereafter. The UTILITY agrees to respond to all STATE change order requests in writingDOTForm 224-062 EFRevised 11/10 Page 3 of 5and within five (5) working days. STATE notification shall not be required for UTILITY-requested changes. The UTILITYagrees to pay all costs associated with the changed Work, as well as the costs of Project or Work delays and/or subsequentcontractor claims associated with the UTILITY’s failure to timely respond as required.4.3 The UTILITY may request additions to the Work through the STATE in writing. The STATE will implement the requestedchanges as elective changes, provided that a change does not negatively impact the STATE’s transportation system andcomplies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations,and/or STATE design policies, and does not unreasonably delay critically scheduled Project contract activities.4.4 All elective changes to the Work shall be approved in writing by the UTILITY before the STATE directs the contractor toimplement the changes, even if an executed change order is not required by the Project contract. The UTILITY agrees topay for the increases in cost, if any, for such elective changes in accordance with Section 3.4.5 The STATE will make available to the UTILITY all change order documentation related to the Work.5. FRANCHISE OR PERMIT5.1 The UTILITY shall apply for a permit, franchise or an amendment to its current franchise for those new or modified UTILITYfacilities that will be located within the STATE’s right of way. After receiving the application, the STATE will issue the UTILITYa permit or a new or amended franchise.6. RIGHT OF ENTRY6.1 The UTILITY agrees to arrange for rights of entry upon all privately owned lands upon which the UTILITY has a claimedproperty right and which are necessary to perform the Work. The UTILITY also agrees to obtain all necessary permissions for the STATE to perform the Work on such lands, which may include reasonable use restrictions on those lands. TheUTILITY agrees to provide the rights of entry and applicable permissions under this section to the STATE within( ) calendar days of entering into this Agreement. Upon completion of the Work on such lands, the rights of entry andpermissions shall terminate. 7. GENERAL PROVISIONS7.1 Indemnification: To the extent authorized by law, the UTILITY and STATE shall indemnify and hold harmless one anotherand their employees and/or officers from and shall process and defend at its own expense any and all claims, demands,suits at law or equity, actions, penalties, losses, damages (both to persons and/or property), or costs, of whatsoever kind ornature, brought against the one Party arising out of, in connection with, or incident to the other Party’s performance or failureto perform any aspect of this Agreement, provided, however, that if such claims are caused by or result from the concurrentnegligence of (a) the UTILITY and (b) the STATE, their respective employees and/or officers, or involves those actionscovered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of theUTILITY or STATE, and provided further, that nothing herein shall require the UTILITY or STATE to hold harmless or defend the other or its employees and/or officers from any claims arising from that Party’s sole negligence or that of its employeesand/or officers. The terms of this section shall survive the termination of this Agreement.7.2 Disputes: If a dispute occurs between the UTILITY and the STATE at any time during the prosecution of the Work, theParties agree to negotiate at the management level to resolve any issues. Should such negotiations fail to produce asatisfactory resolution, the Parties agree to enter into arbitration and/or mediation before proceeding to any other legalremedy. Each Party shall be responsible for its own fees and costs. The Parties agree to equally share the cost of a mediatoror arbiter.7.3 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right orobligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in thesuperior court situated in Thurston County, Washington. Each Party shall be responsible for its own attorney’s fees and costs.DOT Form 224-062 EFRevised 11/10 Page 4 of 5 7.4 Termination: 7.4.1 Unless otherwise provided herein, the UTILITY may terminate this Agreement upon thirty (30) calendar days written notice to the STATE. If this Agreement is terminated by the UTILITY prior to the fulfillment of the terms stated herein, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred up to the date of termination associated with the UTILITY Work, as well as the cost of non-cancelable obligations, including any redesign, reengineering or re-estimating, if necessary, to delete the Work, and contractor claims, if any, payment in accordance with Section 3. Further, the UTILITY acknowledges and agrees that should it terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.4.2 Unless otherwise provided herein, the STATE may terminate this Agreement upon thirty (30) calendar days written notice to the UTILITY. Should the STATE terminate this Agreement, the UTILITY shall reimburse the STATE for all actual direct and related indirect expenses and costs, including mobilization, construction engineering, contract administration and overhead costs, incurred by the STATE up to the date of termination associated with the UTILITY Work. The UTILITY acknowledges and agrees that should the STATE terminate this Agreement, such termination shall not relieve the UTILITY from its responsibility to design, remove, relocate and/or construct its facilities so as not to delay or conflict with the STATE’s Project. The STATE agrees to provide to the UTILITY all Work-related documents upon final payment by the UTILITY. 7.5 Amendments: This Agreement may be amended by the mutual agreement of the Parties. Such amendments or modifications shall not be binding unless put in writing and signed by persons authorized to bind each of the Parties. 7.6 Independent Contractor: Both Parties shall be deemed independent contractors for all purposes, and the employees of each Party and any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be the employees of the other Party. 7.7 Audit and Records: During the progress of the Work and for a period of not less than three (3) years from the date of final payment, both Parties shall maintain the records and accounts pertaining to the Work and shall make them available during normal business hours and as often as necessary, for inspection and audit by the other Party, State of Washington, and/or Federal Government and copies of all records, accounts, documents or other data pertaining to the Work will be furnished upon request. The requesting Party shall pay the cost of copies produced. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until any litigation, claim or audit finding has been resolved even though such litigation, claim or audit continues past the three-year retention period. 7.8 Working Days: Working days for this Agreement are defined as Monday through Friday, excluding Washington State holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year last written below. STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION By Title UTILITY Date Name DOT Form 224-062 EF Revised 11/10 Page 5 of 5 By Title Date Name DOT Form 224-062 EFRevised 11/10Utility ConstructionAgreementWork by State - Utility Cost Utility Name and AddressProject Title / LocationAgreement NumberState Route RegionEstimated Agreement Amount Page 1 of 5MilepostsFromToAdvance Payment Amount$$This Utility Construction Agreement is made and entered into between the State of Washington Department of Transportation, herein(STATE) and the above named UTILITY.WHEREAS, the STATE is planning the construction or improvement of the State Route as shown above for the listed STATE Project,and in connection therewith, it is necessary to remove and/or relocate and/or construct certain UTILITY facilities, herein the (Work),andWHEREAS, the UTILITY is responsible for (1) the cost of the Work for UTILITY facilities located without a documented ownership ofand/or interest in real property, such as being located pursuant to a franchise, a permit, or undocumented permission, (2) allbetterments, and (3) new facilities, andWHEREAS, the Work shall be defined as all materials, equipment, labor, contract administration and any other efforts required toperform the relocation, construction, and/or removal of the UTILITY’s facilities, andWHEREAS, the Work includes o Betterments; o Relocation of Facilities with Property Rights; o Facilities without PropertyRights; o Installation of New Facilities; o Removal of Existing Facilities from the STATE right of way, andWHEREAS, it is deemed to be in the best public interest for the STATE to include the Work in the STATE’s Project,NOW, THEREFORE, pursuant to RCW 47.01.210 and chapter 47.44 RCW and in consideration of the terms, conditions, covenants,and performances contained herein, as well as the attached Exhibits which are incorporated and made a part hereof,IT IS MUTUALLY AGREED AS FOLLOWS: 1. PLANS, SPECIFICATIONS AND BIDS1.1 Program Guide: Utility Relocation and Accommodation on Federal Aid Highway Projects shall determine and establish thedefinitions and applicable standards and payments for this Agreement. By this reference this document is adopted andmade a part of this Agreement as if fully contained herein. 1.2 Betterment: A betterment is any improvement to the UTILITY’s facilities not required by code, regulation, standard industrypractice, or any other applicable regulation. If any of the Work constitutes a betterment as defined in the Program Guide:Utility Relocation and Accommodation on Federal Aid Highway Projects, the UTILITY is solely responsible for the costs of such improvement.1.3 The STATE, acting on behalf of the UTILITY, agrees to perform the UTILITY facilities Work in accordance with Exhibit A,Special Provisions, and Exhibit C, Plans, where either: (1) UTILITY supplied the Work plans and special provisions to theSTATE, or (2) STATE developed the Work plans and special provisions from UTILITY-provided information. UT 01495 - Exhibit A PAGE-1 of 2 UT 01495 UTILITY CONSTRUCTION AGREEMENT WORK BY STATE ACTUAL COST EXHIBIT “A” SCOPE OF WORK, SPECIFICATIONS and SPECIAL PROVISIONS The W ork under this Agreement provides for the STATE, through its construction contractor, to relocate the UTILITY’s water main as part of the STATE’s project. This Agreement also provides for the STATE, through its contractor, to construct a new sanitary sewer line to be owned by the UTILITY that will run immediately south of SR 531 then cross SR 9, turn north and cross SR 531/172nd St. where the line will terminate in a manhole. The design of the Work for the UTILITY’s waterline was performed by the STATE’s design team as authorized by Utility Preliminary Engineering Agreement No. 01465, executed May 10, 2010. The construction of the waterline, due to its presence within STATE owned right of way, will meet the STATE’s design standards in addition to the design standards of the UTILITY. The construction of the sewer line, due to its crossings within STATE owned right of way, will meet the STATE’s design standards in addition to the design standards of the UTILITY. 1. SCOPE OF WORK The Work involves relocation of a water line owned by the UTILITY and new construction of a sanitary sewer line also to be owned by the UTILITY. The water line W ork is defined as relocation construction of an approximate 1070 ft length of 16-inch diameter ductile iron pipe water main to replace a 12 inch diameter main, being installed within the STATE’s right of way and within the project limits as shown in the Exhibit “C” plan sheets. The increase in size from 12 inch diameter to 16 inch diameter is at the UTILITY’s option and cost. The relocated water main will connect into the existing water main at each end as indicated on the Exhibit “C” plans. The waterline Work also includes removal of the existing UTILITY owned water main being deactivated by the Work. The portion of the water main that crosses under SR 9 and SR 531 will be cased with 24 inch steel pipe. The sewer line portion of the Work is defined as construction of an approximate 888 ft long, 12 inch diameter sanitary sewer line that will run parallel to the south edge of the STATE’s right of way for SR 531. The line will run east from approximately STA B 12+50 where it will cross under SR 9 on STATE owned right of way, then head north, crossing under 172nd Street on STATE owned right of way to STA B 20+00. The line will terminate in a manhole for future use. The sewer line will be built on easements owned by the UTILITY except where it crosses STATE owned right of way. See Exhibit “C” for plan views of this installation. 2. SPECIFICATIONS The Work will be constructed according to the current Washington State Department of Transportation’s Standard Specifications for Road, Bridge, and Municipal Construction, current edition and amendments thereto, unless otherwise noted. 3. WORK BY THE UTILITY 3.1 The UTILITY will have the right to inspect the Work performed by the STATE’s construction contractor. The UTILITY shall coordinate a mutually agreeable schedule and scope of inspection with the STATE’s Project Construction Engineer for any and all UTILITY inspections. The UTILITY UT 01495 - Exhibit A PAGE-2 of 2 shall report any deficiencies in writing to the STATE within five (5) calendar days of the inspection, for work performed on STATE Right of Way. 3.2 All costs for portions of the W ork performed under this Section 3 will be borne solely by the UTILITY. 3.3 The UTILITY is to provide a representative as requested by the STATE and/or the STATE’s contractor when service connections are performed. 4. USE OF UTILITY EASEMENTS/PROPERTY The UTILITY will authorize the STATE and its construction contractor to enter and use easement and property owned by the UTILITY for the purposes of constructing the Work. 5. QUITCLAIM DEED Upon completion of the W ork covered under this AGREEMENT, the STATE shall prepare a quitclaim deed to be executed by the UTILITY for any existing easement that lies within the STATE’s right of way of this project. See Exhibit “C-3” for a plan view of the easement. 6. FRANCHISE The UTILITY will apply for an amended franchise/permit for all of its facilities on this project within STATE right of way no later than two weeks after receiving the executed original of this agreement. 7. SALVAGE The materials salvaged from the deactivated waterline will be returned to the UTILITY at no extra cost. The cost to the UTILITY for removal of the line (See Item No. 14 of Exhibit “B”, Cost Estimate) is assumed to be equal to the salvage value of the materials removed. City of Arlington Waterline and Sanitary Sewer Line Construction Cost Estimate Item #Std Item #Item Name Qty Unit Measure ment Unit Cost Total Cost Waterline 1 3871 Ductile Iron Pipe for Water Main 16 In. Diam*1070 LF 110.00$ 117,700.00$ 2 3869 Ductile Iron Pipe for Water Main 12 In. Diam*215 LF 55.00$ 11,825.00$ 3 3867 Ductile Iron Pipe for Water Main 6 In. Diam*20 LF 50.00$ 1,000.00$ 4 3866 Ductile Iron Pipe for Water Main 8 In. Diam*20 LF 50.00$ 1,000.00$ 5 3822 16" Butterfly Valve 5 EA 2,250.00$ 11,250.00$ 6 6165 12" Gate Valve 4 EA 2,250.00$ 9,000.00$ 7 6160 8" Gate Valve 1 EA 1,250.00$ 1,250.00$ 8 3846 Hydrant Assembly**2 EA 3,500.00$ 7,000.00$ 9 NS 24" Steel Casing 265 LF 100.00$ 26,500.00$ 10 3838 Blowoff Assembly 1 EA 1,000.00$ 1,000.00$ 11 3858 Service Connection 1 In. Diam 4 EA 1,500.00$ 6,000.00$ 12 3815 Bank Run Gravel for Trench Backfill 690 CY 10.00$ 6,900.00$ 13 7007 Shoring or Extra Excavation Trench 7495 SF 0.50$ 3,747.50$ 14 NS Removal of Existing Water Main 1 LS 5,000.00$ 5,000.00$ Sanitary Sewer 15 7364 Manhole 60 In. Diam. Type 1 5 EA 6,000.00$ 30,000.00$ 16 7372 Manhole Additional Height 60 In. Diam. Type 1 15 LF 300.00$ 4,500.00$ 17 NS Waterproofing for Manhole 5 EA 500.00$ 2,500.00$ 18 3769 PVC Sanitary Sewer Pipe 12 In. Diam.888 LF 97.50$ 86,580.00$ 19 7006 Structure Excavation Class B Incl. Haul 1610 CY 12.00$ 19,320.00$ 20 7008 Shoring or Extra Excavation Class B 12406 SF 1.00$ 12,406.00$ 21 3815 Bank Run Gravel for Trench Backfill 1390 CY 10.00$ 13,900.00$ 22 3152 Testing Sewer Pipe 888 LF 2.00$ 1,776.00$ Other 23 NS Dewatering (for both Waterline and Sanitary co 1 LS 50,000.00$ 50,000.00$ 24 NS Clearing 0.04 Acre 9,000.00$ 360.00$ 25 6490 Erosion/Water Pollution Control 1 EST 5,000.00$ 5,000.00$ 26 6971 Project Temprary Traffic Control 1 LS 13,425.00$ 13,425.00$ 27 6414 Seeding, Fertilizing and Mulching 0.24 Acre 1,250.00$ 300.00$ 28 Sub Total 449,239.50$ 29 Mobilization 8%35,939.16$ 30 CN Engineering 12%53,908.74$ 31 Tax 9%40,431.56$ 32 Total 579,518.96$ ** Hydrant Assembly item includes 6" gate valve EXHIBIT "B" UTILITY CONSTRUCTION AGREEMENT NO. 01495 WORK BY STATE - COST ESTIMATE * per WSDOT Standard Specifications (Sec. 7-09.5), Fittings, testing, conc. thrust blocking, trench excavation, backfilling, bedding, and cleanup are included in the City of Arlington Council Agenda Bill AGENDA ITEM: New Business #2 ATTACHMENT E COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Proposed Stormwater Rate Ordinance DEPARTMENT OF ORIGIN: Public Works – Utilities Division James Kelly ATTACHMENTS: - Stormwater Rate Ordinance EXPENDITURES REQUESTED: No expenditure BUDGET CATEGORY: N/A LEGAL REVIEW: Reviewed by City Attorney DESCRIPTION: As shown in the recently completed Stormwater Comprehensive Plan, the City needs to increase Stormwater Utility rates to fund needed Stormwater programs and capital improvement activities required by the state issued NPDES, Phase 2 permit. HISTORY: Following the two public hearings, City Council has requested staff to increase the stormwater rates based on rate increase scenario 2 (a gradual increase over three years) and to cap the annual CPI increase at 2 percent. Staff has drafted a Stormwater Rate Ordinance amending Arlington Municipal Code 13.12 to reflect this request. ALTERNATIVES: - Table for further discussion RECOMMENDED ACTION: - Motion to authorize adoption of the proposed Ordinance increasing the Stormwater Utility rates. ORDINANCE NO. 2010 -xxx 1 ORDINANCE NO. _______ AN ORDINANCE OF THE CITY OF ARLINGTON, WASHINGTON REGARDING MONTHLY STORMWATER CHARGES WHEREAS, the City of Arlington, Washington has the authority to enact laws to promote the health, safety and welfare of its citizens; and WHEREAS, the City of Arlington has been issued a National Pollutant Discharge Elimination System (NPDES) Phase 2 stormwater permit by the Washington State Department of Ecology which increases regulatory requirements on the City; and WHEREAS, the City of Arlington has identified a capital improvement program for continued/improved stormwater management; and WHEREAS, the City of Arlington continues to examine equitable monthly stormwater charges, and believes that amending the current monthly stormwater charges is necessary and fair to equitably allocate stormwater system charges ; NOW, THEREFORE, be it ordained by the City Council of the City of Arlington as follows: Section 1. Arlington Municipal Code section 13.12.500 shall be and hereby is amended to read as follows: 13.12.500 Classifications, rates, charges and rules for stormwater service. The classifications, rates and charges for stormwater service and the rules governing such service are fixed as follows in Sections 13.12.510 through 13.12.550, and shown in Tables 2 and 3 below. Section 2. Arlington Municipal Code section 13.12.510 shall be and hereby is amended to read as follows: 13.12.510 Classification of property. The City Engineer shall estimate or measure the impervious area of each parcel of developed real property within the boundaries of the utility to determine the number of equivalent service units (ESUs), as defined in section 13.28.050(m), that are contained therein; six thousand square feet of impervious area shall equal one ESU. See Table 2. (a) All single-family residences, duplexes and triplexes are deemed to contain one ESU per dwelling unit. ORDINANCE NO. 2010 -xxx 2 (b) For all other developed real properties, including multifamily, condominiums and mobile home parks, the utility shall determine the number of ESUs contained thereon by dividing the number of square feet of impervious area on each property by six thousand; the total thus obtained will be rounded to the nearest whole number representing the ESUs contained on such property. (c) Each developed parcel of property shall be deemed to contain a minimum of one ESU. Credits shall not reduce this minimum. Table 2. Property Classification and ESUs for Stormwater Rate Assessment Stormwater Property Classification Number of ESUs Exempt N/A Undeveloped 0 Residential, SFR 1 Residential, Duplex 2, 1 per dwelling unit Residential, Triplex 3, 1 per dwelling unit Residential, Homeowners’ Assoc & Common Areas Impervious area / 6000 sf Residential, Multi-family (apartments, condominiums, mobile home parks) Impervious area / 6000 sf School Impervious area / 6000 sf Commercial, Institutional, Other Impervious area / 6000 sf Irrigation 0 Industrial Impervious area / 6000 sf Section 3. Arlington Municipal Code section 13.12.520 shall be and hereby is amended to read as follows: 13.12.520 Charges based on impervious area. In accordance with the policy established in Section 13.28.090, the service charge shall be determined by the amount of impervious area contained on each parcel of real property. Section 4. Arlington Municipal Code section 13.12.530 shall be and hereby is amended to read as follows: 13.12.530 Property exempt from service charges. The following special categories of property are exempt from service charges: (a) City street rights-of-way; ORDINANCE NO. 2010 -xxx 3 (b) State of Washington highway rights-of-way and Snohomish County road rights-of- way so long as the state of Washington and Snohomish County shall agree to maintain, construct and improve all drainage facilities contained within such rights-of-way as required by the utility in conformance with all utility standards for maintenance, construction and improvement hereafter established by the utility and so far as such maintenance, construction and improvements shall be achieved at no cost to the utility or to the city. Section 5. Arlington Municipal Code section 13.12.540 shall be and hereby is amended to read as follows: 13.12.540 Initial service charge rates. In accordance with the rate structure established herein, there is hereby levied upon all developed real property within the boundaries of the utility, the following service charges: (a) State and city utility taxes are included in the following rates and charges for stormwater service. See Table 3. (b) Beginning on January 15, 2014, the rates set forth for the year 2013 shall be increased annually by the October reported percentage increase of the Consumer Price Index (CPI) for the Seattle-Tacoma-Bremerton area for All Urban Consumers, or other measure commonly used by the city should it change; provided, however, that no annual increase shall exceed two (2.0) percent; and provided further, that notwithstanding any reduction in the CPI, rates shall not decrease. Stormwater Charges (Monthly) Table 3. Monthly Stormwater Service Charge Rates 2011 RATE 2012 RATE 2013 RATE Base rate per ESU 4.75 5.82 $6.89 (c) For all other developed property including multifamily, condominiums and mobile home parks within the boundaries of the utility, except as specified under Section 13.28.130, the monthly service charge shall be based on the above table (Table 3) per month multiplied by the number of equivalent service units determined by the utility to be contained in such parcel. For all single-family property owners qualifying for the ORDINANCE NO. 2010 -xxx 4 senior low-income utility discount established in Section 13.12.140, the discount shall apply to stormwater service charges. Section 6. Arlington Municipal Code section 13.12.550 shall be and hereby is amended to read as follows: 13.12.550 Credit potential for private, on-site control facilities on non single-family properties and school facilities. (a) The utility may grant a credit for private, on-site control facilities that benefit the overall stormwater system. Details pertaining to eligibility and applying for a credit are detailed in the Stormwater Credit Manual as defined in section 13.28.050(dd). The eligibility of the credit shall be reviewed on an annual basis to ensure proper maintenance of said private facilities. The administrator of the utility shall determine the forms, requirements and process for determining eligibility. (b) The utility shall grant public schools additional credit upon receipt of an acceptable curriculum showing how the district provides education regarding stormwater issues. Each site owned and operated by the district in support of education shall be eligible for this credit in addition to any site-specific credits also available for individual sites. Credit requirements shall be as established in the Stormwater Credit Manual as defined in section 13.28.050(dd), The administrator of the utility shall determine the forms, requirements and process for determining eligibility. Section 7. 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 8. Effective Date . A summary of this Ordinance consisting of its title shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication; provided, however, that the rates and charges set forth in section 5 shall become effective on January 15, 2011. PASSED by the City Council of the City of Arlington and APPROVED by the Mayor this ______ day of _____________________, 2010. ORDINANCE NO. 2010 -xxx 5 CITY OF ARLINGTON ____________________________________ Margaret Larson, Mayor ATTEST: ___________________________________ Kristin Banfield, City Clerk APPROVED AS TO FORM: ___________________________________ Steven J. Peiffle, City Attorney City of Arlington Council Agenda Bill AGENDA ITEM: New Business #3 ATTACHMENT F COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Adding a new AMC Chapter 2.20– City Offices, adding Hours of Operation DEPARTMENT OF ORIGIN: Executive Contact: Kristin Banfield, 360-403-3444 ATTACHMENTS: - Ordinance adding a new AMC Chapter 2.20 EXPENDITURES REQUESTED: -0- BUDGET CATEGORY: N/A LEGAL REVIEW: City Attorney has completed his review. DESCRIPTION: Staff is proposing adding a new chapter to AMC Title 2 which addresses the city’s hours of operation. The City is required to codify its hours of operation by RCW 35A.21.070 RCW 35A.21.070 states “All code city offices shall be kept open for the transaction of business during such days and hours as the legislative body of such city shall by ordinance prescribe.” HISTORY: The City has been updating the Arlington Municipal Code over the course of the past year. The project should be complete and the AMC completely updated in a searchable format by the end of January 2011. ALTERNATIVES: Remand to staff for further revision. Council is requested to provide specific guidance should further revision be requested. RECOMMENDED ACTION: I move Council approve the proposed ordinance adopting a new Chapter 2.20 to the Arlington Municipal Code. ORDINANCE NO. 2010-xxx ORDINANCE NO. 2010-xxx AN ORDINANCE OF THE CITY OF ARLINGTON, WASHINGTON ADDING A NEW CHAPTER 2.20 TO THE ARLINGTON MUNICIPAL CODE RELATING TO THE CITY’S HOURS OF OPERATION WHEREAS, the City of Arlington, Washington has the authority to adopt ordinances for the general welfare of its citizens; and WHEREAS, certain provisions of the Arlington Municipal Code are outdated and require revision; and WHEREAS, the City Council of the City of Arlington has requested a new chapter be added to Title 2, relating to City offices and the hours of operation of the City of Arlington to comply with RCW 35A.21.070; NOW, THEREFORE, the City Council of the City of Arlington, Washington does hereby ordain as follows: Section 1. A new Chapter 2.20 is hereby added to the Arlington Municipal Code, as follows: Chapter 2.20 CITY OFFICES 2.20.010 Hours of operation. 2.20.010 Hours of operation City offices shall be open for the transaction of business with the public Monday through Friday, excluding holidays, from 8:00 a.m. to 5:00 p.m. The finance department offices shall be open Monday through Friday, excluding holidays, from 9:00 a.m. to 5:00 p.m. The police department offices shall be open Monday through Friday, excluding holidays, from 9:00 a.m. to 5:00 p.m. The utilities office of the public works department shall be open Monday through Friday, excluding holidays, from 7:30 a.m. to 4:00 p.m. The offices may occasionally be closed during these hours for staff events. In the case of such an event, a notice of such closure will be posted on the door of the City Hall offices or on the city’s website at least one week prior to the closure. . Section 4. Effective Date . A summary of this Ordinance consisting of its title shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication. ORDINANCE NO. 2010-xxx PASSED by the City Council of the City of Arlington and APPROVED by the Mayor this ______ day of _____________________, 2010. CITY OF ARLINGTON ____________________________________ Margaret Larson, Mayor ATTEST: ___________________________________ Kristin Banfield, City Clerk APPROVED AS TO FORM: ___________________________________ Steven J. Peiffle, City Attorney City of Arlington Council Agenda Bill AGENDA ITEM: New Business #4 ATTACHMENT G COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Update of AMC Chapter 2.72 – Purchasing and Small Works Roster DEPARTMENT OF ORIGIN: Executive Contact: Kristin Banfield, 360-403-3444 ATTACHMENTS: - Ordinance updating AMC Chapter 2.72 EXPENDITURES REQUESTED: -0- BUDGET CATEGORY: N/A LEGAL REVIEW: City Attorney has completed his review. DESCRIPTION: Staff is proposing updates to AMC Chapter 2.72 which addresses the city’s purchasing and small works roster processes. Staff is proposing to repeal most of the existing sections of AMC Chapter 2.72 and rewrite it to align with state law. This chapter was last updated in 2000. State law regarding purchasing and small works roster has changed considerably since that time. HISTORY: The City has been updating the Arlington Municipal Code over the course of the past year. The project should be complete and the AMC completely updated in a searchable format by January 2011. ALTERNATIVES: Remand to staff for further revision. Council is requested to provide specific guidance should further revision be requested. RECOMMENDED ACTION: I move Council adopt the proposed ordinance amending Arlington Municipal Code relating to the city’s purchasing and small works roster processes. ORDINANCE NO. 2010-xxx 1 ORDINANCE NO. 2010-xxx AN ORDINANCE OF THE CITY OF ARLINGTON, WASHINGTON AMENDING AND REPEALING CERTAIN SECTIONS OF CHAPTER 2.72 OF THE ARLINGTON MUNICIPAL CODE RELATING TO THE CITY’S PURCHASING AND SMALL WORKS ROSTER PROCEDURE WHEREAS, the City of Arlington, Washington has the authority to adopt ordinances for the general welfare of its citizens; and WHEREAS, certain provisions of the Arlington Municipal Code are outdated and require revision; and WHEREAS, the City Council of the City of Arlington has requested additional revisions to Chapter 2.72; NOW, THEREFORE, the City Council of the City of Arlington, Washington does hereby ordain as follows: Section 1. Arlington Municipal Code Chapter 2.72 is hereby renamed “Purchasing and Small Works Roster Procedure”. Section 2. Arlington Municipal Code section 2.72.010 is amended to read as follows: 2.72.010 Small works roster procedures . 1. Cost. The City need not comply with formal sealed bidding procedures for the construction, building, renovation, remodeling, alteration, repair or improvement of real property where the estimated cost is within the limits, as set forth in RCW 35.23.352 for single-craft or multi-crafts or within the limits as set forth by RCW 39.04.155, for the use of the small works roster. The estimated cost must include the costs of labor, material, equipment and sales and/or use taxes as applicable. The breaking of any project into units or accomplishing any projects by phases is prohibited if done for the purpose of avoiding the maximum dollar amount of a contract that may be let using the small works roster process. 2. Number of Rosters. The City may create a single general small works roster, or may create a small works roster for different categories of anticipated work. Said small works rosters may make distinctions between contractors based upon different geographic areas served by the contractor. ORDINANCE NO. 2010-xxx 2 3. Contractors on Small Works Roster(s). The small works roster(s) shall consist of all responsible contractors who have requested to be on the roster(s), and are properly licensed or registered to perform such work in this state. 4. Publication. At least once a year, the City shall publish in a newspaper of general circulation within the City a notice of the existence of the roster or rosters and solicit the names of contractors for such roster or rosters. Responsible contractors shall be added to an appropriate roster or rosters at any time that they submit a written request and necessary records. The City may require master contracts be signed that become effective when a specific award is made using a small works roster. An Interlocal contract or agreement between the City and other local governments establishing a small works roster or rosters to be used by the parties to the agreement or contract must clearly identify the lead entity that is responsible for implementing the small works roster provisions. 5. Electronic, Telephone, or Written Quotations. The City shall obtain electronic, telephone, or written quotations for public works contracts from contractors on the appropriate small works roster to assure that a competitive price is established and to award contracts to the lowest responsible bidder, as defined in RCW 43.19.1911, as follows: a. A contract awarded from a small works roster need not be advertised. Invitations for quotations shall include an estimate of the scope and nature of the work to be performed as well as materials and equipment to be furnished. However, detailed plans and specifications need not be included in the invitations. This subsection does not eliminate other requirements for architectural or engineering approvals as to quality and compliance with building codes; b. Quotations may be invited from all appropriate contractors on the appropriate small works roster. As an alternative, quotations may be invited from at least five (5) contractors on the appropriate small works roster who have indicated the capability of performing the kind of work being contracted, in a manner that attempts to equally distribute opportunities among the contractors on the appropriate roster; c. If the estimated cost of the work is above $65,000 for multi-craft or $40,000 for single-craft projects up to the limits of use of small works roster as set forth in RCW 39.04.155, the City may choose to solicit bids from less than all the appropriate contractors on the appropriate small works roster but must also notify the remaining contractors on the appropriate small works roster that quotations on the work are being sought. The City has the sole option of determining whether this notice to the remaining contractors is made by: i. Publishing notice in a legal newspaper in general circulation in the area where the work is being done; ii. Mailing a notice to these contractors; or iii. Sending a notice to these contractors by facsimile or other electronic means; d. For the purposes of this section, “equitably distribute” means that the City may not favor certain contractors on the appropriate small works roster over other contractors on the appropriate small works roster who perform similar services; e. At the time bids are solicited, the City representative shall not inform a contractor of the terms or amount of any other contractor’s bid for the same project; ORDINANCE NO. 2010-xxx 3 f. A written record shall be made by the City representative of each contractor’s bid on the project and of any conditions imposed on the bid. Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by telephone inquiry; and g. At least once every year a list of contracts awarded under this section shall be made available to the general public. The list shall contain the name of the contractor or vendor awarded the contract, the amount of the contract, a brief description of the type of work performed or the items purchased under the contract, and the date it was awarded. The list shall also state the location where the bid quotations for these contracts are available for public inspection. 6. Determining Lowest Responsible Bidder. To the extent consistent with applicable commitment authority, the Mayor shall award the contract for the public works project to the lowest responsible bidder; as provided in RCW 39.04.350 and the bid documents. 7. Life Cycle Costing. In considering bids for the construction of public works projects, whenever there is a reason to believe that applying the “life cycle costing” method to bid evaluation would result in the lowest total cost to the City, first consideration shall be given to the bid with the lowest life cycle cost which complies with the specifications. “Life cycle cost” means the total cost of an item to the City over its estimated useful life, including costs of selection, acquisition, operation, maintenance, and where applicable, disposal, as far as these costs can be reasonably determined, minus the salvage value at the end of its estimated useful life. The “estimated useful life” of an item means the estimated time from the date of acquisition to the date of replacement or disposal, determined in any reasonable manner. 8. Award. All of the telephone bids or quotations shall be collected at the same time to the City for consideration, determination of the lowest responsible bidder and award of the contract. The City reserves its right under applicable law to reject any or all bids, and to waive procedural irregularities. Section 3. Arlington Municipal Code section 2.72.020 is amended to read as follows: 2.72.020 1. Cost. In lieu of awarding public works contracts under AMC 2.72.010, the City may award a contract for work, construction, alteration, repair, or improvement of real property where the estimated cost does not exceed $35,000, which includes the costs of labor, material, equipment and sales and/or use taxes as applicable, using the limited small works roster procedures for this section. Public works contracts awarded under this section are exempt from the other requirements of the small works roster process outlined in AMC 2.72.010(5). The breaking of any project into units or accomplishing any project by phases is prohibited if done for the purpose of avoiding the maximum dollar amount of a contract that may be let using the limited small works roster process established herein. Limited Small Works Roster. 2. Electronic or Written Quotations. The City shall solicit electronic or written quotations from contractors on the appropriate small works roster established under AMC 2.72.010 and shall award the contract to the lowest responsible bidder, as defined in RCW 43.19.1911. The following procedures shall be utilized: ORDINANCE NO. 2010-xxx 4 a. A contract awarded using the limited small works roster process need not be advertised. Invitations for quotations shall include an estimate of the scope and nature of the work to be performed as well as materials and equipment to be furnished. However, detailed plans and specifications need not be included in the invitation. This subsection does not eliminate other requirements for architectural or engineering approvals as to quality and compliance with building codes; b. Quotations may be invited from all appropriate contractors on the appropriate small works roster. As an alternative, quotations may be invited from at least three (3) contractors on the appropriate small works roster who have indicated the capability of performing the kind of work being contracted, in a manner that attempts to equitably distribute the opportunities among the contractors on the appropriate roster; c. For purposes of these procedures, “equitably distribute” means that the City may not favor certain contractors on the appropriate small works roster over other contractors on the appropriate small works roster who perform similar services. At the time bids are solicited, the City representative shall not inform a contractor of the terms or amount of any other contractor’s bid for the same project. d. A written record shall be made by the City representative of each contractor’s bid on the project and of any conditions imposed on the bid. Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by electronic request; and e. The City shall maintain a list of the contractors contacted and the contracts awarded under the limited small works roster process for a period of twenty four (24) months. The list shall contain the name of the contractor, the contractor’s registration number, the amount of the contract, a brief description of the type of work performed, and the date the contract was awarded. 3. Bonds and Retainage. For limited public works roster projects, the City may waive the payment and performance bond requirements of Chapter 39.08 RCW and the retainage bond requirements of Chapter 60.28 RCW, and thereby assume full responsibility and liability for the contractor’s nonpayment of laborers, mechanics, subcontractors, materialmen, suppliers, and taxes imposed under RCW Title 82 that may be due from the contractor for the limited public works project; provided, however, that such a waiver by the City shall not constitute a waiver of the City’s right of recovery against the contractor for any payments made on the contractor’s behalf by the City. 4. Determining Lowest Responsible Bidder – Award. The City shall determine the lowest responsible bidder and award the contract as provided in AMC 2.72.010. Section 4. Arlington Municipal Code section 2.72.030 is amended to read as follows: 2.72.030 Purchasing Procedures Except as provided in AMC 2.72.010 and .020 or as otherwise provided by law, the City shall follow its current “Purchasing Policies and Procedures”, as adopted by resolution, true copies of which shall be available for inspection in the City Clerk’s office. . ORDINANCE NO. 2010-xxx 5 Section 5. Arlington Municipal Code Section 2.72.040 is hereby repealed in its entirety. Section 6. Arlington Municipal Code section 2.72.050 is hereby repealed in its entirety. Section 7. Arlington Municipal Code section 2.72.060 is hereby repealed in its entirety. Section 8. Arlington Municipal Code section 2.72.070 is hereby repealed in its entirety. Section 9. Severability. If any such 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 10. Effective Date. A summary of this Ordinance consisting of its title shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication. PASSED by the City Council of the City of Arlington and APPROVED by the Mayor this ______ day of _____________________, 2010. CITY OF ARLINGTON ____________________________________ Margaret Larson, Mayor ATTEST: ___________________________________ Kristin Banfield, City Clerk APPROVED AS TO FORM: ___________________________________ Steven J. Peiffle, City Attorney City of Arlington Council Agenda Bill AGENDA ITEM: New Business #5 ATTACHMENT H COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Ordinance updating AMC Chapter 5.04 – Peddlers and Solicitors DEPARTMENT OF ORIGIN: Executive Contact: Kristin Banfield, 360-403-3444 ATTACHMENTS: - Ordinance updating AMC Chapter 5.04 EXPENDITURES REQUESTED: -0- BUDGET CATEGORY: N/A LEGAL REVIEW: City Attorney has completed his review. DESCRIPTION: Staff is proposing a complete rewrite of the current AMC Chapter 5.04 which addresses peddlers and solicitors operating in the City. The rewrite provides for a clear process for application, issuance, denial, and revocation of peddlers/solicitors licenses. This chapter was originally adopted in 1955 and was revised in 1963 and 1981. HISTORY: The City has been updating the Arlington Municipal Code over the course of the past year. The project should be complete and the AMC completely updated in a searchable format by January 2011. ALTERNATIVES: Remand to staff for further revision. Council is requested to provide specific guidance should further revision be requested. RECOMMENDED ACTION: I move Council approve the proposed ordinance making revisions to Arlington Municipal Code 5.04 relating to peddlers and solicitors. ORDINANCE NO. 2010-xxx 1 ORDINANCE NO. 2010-xxx AN ORDINANCE OF THE CITY OF ARLINGTON, WASHINGTON REPEALING AND ADOPTING A NEW CHAPTER 5.04 OF THE ARLINGTON MUNICIPAL CODE RELATING TO THE CITY’S PEDDLERS AND SOLICITORS REGULATIONS WHEREAS, the City of Arlington, Washington has the authority to adopt ordinances for the general welfare of its citizens; and WHEREAS, certain provisions of the Arlington Municipal Code are outdated and require revision; and WHEREAS, the City Council of the City of Arlington has requested additional revisions to Chapter 5.04; NOW, THEREFORE, the City Council of the City of Arlington, Washington does hereby ordain as follows: Section 1. Arlington Municipal Code Chapter 5.04 is repealed in its entirety. Section 2. A new Chapter 5.04 is hereby added to the Arlington Municipal Code, as follows: Chapter 5.04 PEDDLERS AND SOLICITORS 5.04.010 Purpose. 5.04.020 Religious, charitable, civic, political, or other similar organizations. 5.04.030 Definitions. 5.04.040 License – Fees. 5.04.050 License fees – Veterans’ exemption. 5.04.060 License – Expiration date. 5.04.070 License required. 5.04.080 License – Required – Exceptions. 5.04.090 Unlawful acts. 5.04.100 License application and investigation. 5.04.110 Investigation of applicant – issuance and denial of permit. 5.04.120 License – Product or services sold. 5.04.130 Identification card. ORDINANCE NO. 2010-xxx 2 5.04.140 License – Display. 5.04.150 Disclosure of product and purpose. 5.04.160 Revocation of license. 5.04.170 Appeals. 5.04.180 Penalty. 5.04.010 Purpose The purpose of this chapter is to establish reasonable restrictions on peddling/soliciting activities within the city limits to protect and promote public safety, privacy, and welfare. This chapter is intended to be reasonable as to time, place, and manner restrictions and is not intended to infringe upon any constitutionally protected right. . 5.04.020 Religious, charitable, civic, political, or other similar organizations 1. All religious, charitable, civic, political, or other similar organizations intending to canvass or solicit within the city shall comply with the provisions set out in AMC 5.04.090(3) and (4). No other provisions of this chapter shall apply, unless the religious, charitable, civic, political, or other similar organization intends to solicit for money, in which case subsection 2 of this section shall also apply. . 2. Religious, charitable, or political, civic, or other similar organizations canvassing or soliciting for money shall notify the City Clerk that the organization will be canvassing or soliciting within the city limits. Nonprofit organizations shall also provide the City Clerk with a copy of the organization’s nonprofit certification and state charitable solicitation organization registration. No other requirements of this chapter, including fees, licensing, or other forms of individual information, shall be required. This section is adopted solely for assuring residents that a legitimate organization is canvassing or soliciting in the area and that residents’ privacy is adequately protected. 3. This chapter is not intended to regulate religious or political free speech. Charitable solicitations are also not addressed herein. Chapter 19.09 RCW governs registration and regulation of charitable solicitation. 5.04.030 For the purposes of this chapter: Definitions. “Peddler/solicitor” within the meaning of this chapter is any person who, without prior invitation from the occupant, goes from house to house, or place to place, in the city, selling or taking orders for, or offering to sell or take orders for, scheduling appointments for, or otherwise soliciting for goods, wares, merchandise or services, for present or future delivery, except those selling to entities holding business licenses. 5.04.040 License – Fees The annual fee for a peddler/solicitor license is established by the license fee resolution. The fee shall be paid at the time of application and is nonrefundable. . ORDINANCE NO. 2010-xxx 3 5.04.050 Veterans as defined in RCW 73.04.050 are exempt from payment of licensing fees. Any veteran asserting this exemption shall provide the planning department or code compliance officer proof of honorable discharge prior to the veteran receiving a peddler/solicitor license. License fees – Veterans’ exemption. 5.04.060 License – Expiration date All licenses issued pursuant to this chapter are non-transferable and are valid for the calendar year in which issued. License fees shall not be prorated for any portion of the year. . 5.04.070 It is unlawful for any person to engage in business as a peddler/solicitor in the city without first obtaining a city of Arlington peddler/solicitor license for each person selling on behalf of the business. Any peddler/solicitor as defined in this chapter shall apply for and receive a city peddler/solicitor license prior to engaging in such activity, unless the peddler/solicitor is exempt as indicated in AMC 5.04.080 License required. 5.04.080 No license shall be required for: License – Required – Exceptions. 1. Any person selling, delivering, or peddling any agricultural, horticultural, or farm products which they may grow or raise (RCW 36.71.090); or 2. Any person who, as an agent, acts as a peddler/solicitor on behalf of a regulated utility; or 3. Any minors engaged in baby-sitting, lawn mowing, car washing, or other similar independent activities, unless the minor is acting on behalf of a person not a minor; or 4. Any vendors of milk, bakery products, groceries, newspapers, or ice who distribute their products to regular customers on established routes; or 5. Any person who, after having been specifically requested by another to do so, calls upon that other person for the purpose of displaying goods, literature or giving information about any article, thing, product or service; or 6. Any person who merely solicits orders for goods, which orders are to be accepted and goods delivered at a future time from a place outside of Washington State. a. Any person or organization claiming an exemption under this section shall complete a modified peddler/solicitor license application; b. Any such person who asserts an exemption under this subsection shall complete a form provided by the City Clerk outlining the reasons for this exemption. This statement must include the name, physical and mailing addresses, phone number, and, if applicable, e-mail address for each of the following: i. Interstate business name; ii. Customer service department; iii. Order cancellation department, if different from customer service; and iv. Regional or local supervisor; 5.04.090 Unlawful acts It is unlawful for any peddler/solicitor to: . ORDINANCE NO. 2010-xxx 4 1. Make untrue, deceptive, or misleading statements about the product or services sold for the purpose of procuring a sale or offer for sale; 2. Make any untrue, deceptive, or misleading statement regarding the purposes of his/her contact with a potential customer; 3. Sell before 8:00 a.m. or after 8:00 p.m. of any day without the specific prior consent of the prospective buyer; 4. Attempt to gain admittance at any residence at which a sign bearing the words “no peddlers,” “no solicitors,” “no trespassing,” or words of similar import is posted, unless at the invitation or with the consent of the occupant thereof; 5. Remain at any location after the prospective buyer has asked the peddler/solicitor to leave. 5.04.100 License application 1. Applicants for a license under this chapter must file with the City Clerk a sworn application in writing on a form to be furnished by the City. . 2. All applications shall provide the following information on the application, with sufficient proof of identification: a. Name, date of birth and description of the applicant; b. Address and telephone number; c. A brief description of the nature of the business and the goods or services to be sold; d. If employed or acting as an agent, the name and address of the employer or principal, together with the description of the exact relationship with the principal or employer; e. If a vehicle is to be used, a description of the same, including the license number; f. Two photographs of the applicant, taken within 60 days immediately prior to the date of filing the application. The picture shall be two inches by two inches showing the head and shoulders of the applicant in a clear and distinguishing manner; g. A statement as to whether or not the applicant has been convicted of any crime within the last 10 years, including misdemeanors, gross misdemeanors, or violations of any municipal ordinance, the nature of the offense, and the punishment or penalty assessed therefor; h. Such other information as may be required by the City. 3. Unless otherwise exempt under AMC 5.04.080, any individual, corporation, partnership or other organization which acts as the principal or employer for individual peddlers shall obtain a license as provided herein and shall provide the following information required as set forth above: a. The applicant’s name, address and telephone number and the names and addresses of all individuals who are employed by or acting as an agent for the applicant; b. If a corporation, the names, addresses and telephone numbers of the corporation’s board of directors, principal officers and registered agent; provided, however, that the City Clerk may waive any portion of this requirement when disclosure would be unduly burdensome; c. If a partnership, the names, addresses and telephone numbers of the partners; d. A list of any criminal convictions during the past 10 years for the applicant, any owners of the business, and if a corporation, the board of directors and officers; ORDINANCE NO. 2010-xxx 5 e. Name, address and telephone numbers (business and home) of the individual, if applicable, acting as the manager for the applicants; f. A list of all other cities, towns, and counties where the applicant has obtained a peddler’s permit or similar permit within the past five (5) years; and g. Such other information as may be required by the City. 5.04.110 Investigation of applicant – issuance and denial of permit 1. The City Clerk shall refer the application to the Police Department which shall determine the accuracy of the information contained in the application and conduct a criminal history background investigation of the applicant. Upon completion, the Police Department shall forward the results of the investigation, together with a recommendation for approval or denial, to the City Clerk. . 2. If, as a result of the investigation, the character and business responsibility of the applicant are found to be satisfactory, the City Clerk shall issue the permit to the applicant. The City Clerk shall deny the applicant the permit if the applicant has: a. Committed any act consisting of fraud or misrepresentation; b. Committed any act which, if committed by a permit holder, would be grounds for suspension or revocation of a permit; c. Within the previous 10 years, been convicted of a misdemeanor or felony directly relating to the occupation of peddler, including, but not limited to, those misdemeanors and felonies involving moral turpitude, fraud or misrepresentation; d. Been refused a permit under the provisions of this chapter; providing, however, that any applicant denied a permit under the provisions of this chapter may reapply if and when the reasons for denial no longer exist; or e. Made any false or misleading statement in the application. 3. The denial of a permit to an individual, corporation, partnership or other organization which serves as the employer or principal for individual peddlers shall be a sufficient basis to deny a permit to the individual applicants who are employed by or acting as an agent for the applicant. 5.04.120 License – Product or services sold The license shall be endorsed with a statement of the type of product or service sold by the licensee. The license is valid only for the product or service specified. . 5.04.130 Identification card Each peddler/solicitor shall be issued an identification card showing: . 1. Business name; 2. Peddler/solicitor name; 3. Type of service or product; 4. Date of expiration; 5. Photo of peddler/solicitor; 6. City of Arlington logo; 7. City of Arlington authorized signature. ORDINANCE NO. 2010-xxx 6 5.04.140 License – Display All peddler/solicitors shall conspicuously display on their outer clothing their identification issued by the city when engaged in peddling/soliciting activities. . 5.04.150 Each peddler/solicitor shall, immediately upon contacting the prospective buyer, disclose to the prospective buyer his/her name, company, and the product or service represented. If requested to do so, he/she shall leave the premises immediately. Disclosure of product and purpose. 5.04.160 1. Licenses issued pursuant to this chapter may be revoked by the City Clerk after notice and hearing for any of the following causes: Revocation of license. a. Fraud, misrepresentation or false statements contained in the application for permits; b. Fraud, misrepresentation or false statements made in the course of carrying on the business as a peddler; c. Any other violation of this chapter; d. Conviction after submission of the application for a peddler’s permit of a felony or misdemeanor directly relating to the occupation of peddler, including, but not limited to those misdemeanors and felonies involving moral turpitude, fraud or misrepresentation; e. Conducting the business of peddling in any unlawful manner or such manner as to constitute a breach of the peace or to constitute a menace to the health, safety and general welfare of the public; f. Violation of any part of this chapter by any employee of a permit holder, regardless of whether the employer is separately licensed under this chapter. 2. The revocation of any license held by an individual, corporation, partnership or other organization which serves as the employer or principal for individual peddlers shall constitute a basis for revoking the licenses issued to individual peddlers who are employed by or acting as agents for such individual, corporation, partnership or organization. 3. The revocation of a license of three or more persons who are employees or agents of an individual, corporation, partnership or organization shall constitute a basis for revoking the license issued to the employer or principal, as well as the licenses issued to all other employees or agents of that employer or principal. 4. Notice of revocation of a license shall be given by the City Clerk in writing, setting forth specifically the grounds of the complaint and the time and the place of hearing. In addition, it shall state that the peddler’s permit shall be suspended pending the outcome of such hearing. Such notice shall be mailed to the permit holder at his or her last known address. The revocation shall become final if no appeal is requested in AMC 5.04.180. If the permit holder is an individual, corporation, partnership or organization which employs or serves as the principal for individual permit holders, the notice shall also be mailed to the individual permit holders. ORDINANCE NO. 2010-xxx 7 5.04.170 Appeals Any person aggrieved by the action of the City Clerk in the denial of an application for a license or in the decision to revoke a permit as provided in this chapter shall have the right to appeal to the City Hearing Examiner. Such appeal shall be taken by filing with the City Clerk, within 10 days after notice of the action complained of has been mailed to such person’s last known address, a written statement setting forth fully the grounds for the appeal. The Hearing Examiner shall set a time and place for a de novo hearing on such appeal and notice of such hearing shall be given to the applicant in the same manner as provided in this chapter for notice of hearing on revocation. The decision and order of the Hearing Examiner on such appeal shall be final and conclusive. Hearings shall be held within 21 days of the day the request is received by the City. . 5.04.180 Penalty Any person who sells or offers for sale or exposes for sale, at public or private sale, any goods, wares, or merchandise without a peddler/solicitor license or any person violating any provision of this chapter shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished as provided in AMC 1.04.010. . Section 3. Effective Date. A summary of this Ordinance consisting of its title shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication. PASSED by the City Council of the City of Arlington and APPROVED by the Mayor this ______ day of _____________________, 2010. CITY OF ARLINGTON ____________________________________ Margaret Larson, Mayor ATTEST: ___________________________________ Kristin Banfield, City Clerk APPROVED AS TO FORM: ___________________________________ Steven J. Peiffle, City Attorney City of Arlington Council Agenda Bill AGENDA ITEM: New Business #6 ATTACHMENT I COUNCIL MEETING DATE: December 20, 2010 SUBJECT: Contract with Zachor & Thomas for City prosecution services DEPARTMENT OF ORIGIN: Executive / Legal Contact: Kristin Banfield, 360-403-3444, Steve Peiffle ATTACHMENTS: - Proposed contract with Zachor & Thomas for City Prosecution services EXPENDITURES REQUESTED: $9266.25 per month BUDGET CATEGORY: General Fund 012 – Criminal Justice LEGAL REVIEW: City Attorney assisted in the negotiation of a new agreement DESCRIPTION: The City’s contract with Zachor & Thomas for prosecution services expired on December 31, 2009. The City and Zachor & Thomas recently completed negotiations on a successor agreement, covering the years 2011 through 2013. In 2009, Marysville Municipal Court added additional calendars for our prosecutors, requiring them to spend an additional 12 hours in court each month, plus additional preparation time. This has continued into 2010 and will continue in the years to come. In addition, the state will be requiring counsel for both the prosecution and the defense to appear at arraignments starting in 2011, also increasing the amount of time our prosecutors spend in court. HISTORY: The law firm of Zachor & Thomas have served as the City’s prosecutors since the City elected to join Marysville Municipal Court in 2002. The City has been extremely pleased with the services that Zachor & Thomas have provided over the last 9 years. ALTERNATIVES: RECOMMENDED ACTION: I move Council authorize the Mayor to sign the proposed contract with Zachor & Thomas for prosecution services. CONTRACT FOR LEGAL SERVICES - 1 (Prosecuting Attorney for the City of Arlington) CONTRACT FOR LEGAL SERVICES (Prosecuting Attorney for the City of Arlington) I. PARTIES THIS AGREEMENT is entered into this _____ day of __________________, 200872010, by and between the CITY OF ARLINGTON, A Municipal Corporation of the State of Washington, (hereinafter referred to as “City”), and the law office of ZACHOR & THOMAS, Inc., P.S., a Personal Services Corporation of the State of Washington (hereinafter referred to as “Prosecuting Attorney”). II. SERVICES OF THE PROSECUTING ATTORNEY 2.1 Primary Services City under the direction of the Mayor and/or City Council. The principals of the Prosecuting Attorney are H. James Zachor, Jr. and Melanie S. Thomas Dane, duly licensed in the State of Washington as Attorneys at Law. Under the supervision of the Prosecuting Attorney, other attorneys may provide assistance to the Prosecuting Attorney as may be necessary. If the Prosecuting Attorney is unable to continue to provide services as required, Prosecuting Attorney shall provide advance notice so that the City may seek another prosecuting attorney. . The Prosecuting Attorney shall serve at the pleasure of the 2.2 Conflict Services . In the event of a conflict with the Prosecuting Attorney of a case requiring a “conflict prosecutor”, it shall be the responsibility of the Prosecuting Attorney to provide such substitute coverage, with a properly licensed State of Washington attorney. However, if such conflict is due to a conflict with the City, the expense of a “conflict prosecutor” shall be the responsibility of the City. III. QUALITY OF SERVICES 3.1 Ethical Coverage hereafter in a capable and efficient manner, and in accordance with the professional and ethical standards of the Washington State Bar Association. . Prosecuting Attorney shall perform legal services as set forth 3.2 Disciplinary Action . In the event the Prosecuting Attorney is the subject of any disciplinary proceeding by the Washington State Bar Association, Prosecuting Attorney shall notify the City in writing of the pendency of said disciplinary proceeding. The City may, in it discretion, make its own inquiry concerning the said disciplinary proceeding and may, in its judgment, terminate this agreement on not less than thirty (30) days notice. IV. SERVICES PROVIDED 4.1 The Prosecuting Attorney shall represent the City as prosecuting attorney in the prosecution of criminal and criminal traffic matters (gross misdemeanors and misdemeanors). The duties of the prosecuting attorney shall include the review and signing of citations and complaints as required; review of police incident reports and supporting documents for charging determination; appearance at hearings and trials (bench and jury trials); telephone CONTRACT FOR LEGAL SERVICES - 2 (Prosecuting Attorney for the City of Arlington) conversations, meetings and negotiations with the police department and its officers, victims, defendants, witnesses and opposing counsels as required; preparation of documents required by the Court such as providing discovery, motions and supporting documents, jury instructions and subpoenas. The City, through its police department and such other departments, shall provide that support necessary to accomplish the prosecution of the above criminal matters. The Prosecuting Attorney shall appear at all calendars for the City of Arlington, which are currently set by the Marysville Municipal Court as of June 1, 2010. Should the court add court appearances for the prosecutor, those appearances shall be billed at our hourly rate until such time that a new fee proposal is adopted. Appearances at video in-custody calendars are not incorporated in this contract. Services attorney in the prosecution of criminal and criminal traffic matters (gross misdemeanors and misdemeanors). The Prosecuting Attorney shall also represent the City in contested civil infractions where defense counsel is present, and other miscellaneous civil hearings conducted at the Municipal Court ( ex: impound hearings). The Prosecuting Attorney shall have at least one prosecutor in court for the required hearings, and when case volume requires, shall provide the assistance of two prosecutors. The duties of the prosecuting attorney shall include: . The Prosecuting Attorney shall represent the City as its prosecuting • Appearances at arraignment calendars currently scehduledscheduled to be every Tuesday morning, , two three (32) pre-trial hearings per month, one (1) bench and motions contested calendar per month which include civil traffic and criminal reviews, one (1) motions calendar per month, one (1) jury calendar per month, and one (1) jury confirmation calendar per month; • The review and signing of citations and complaints as required; • The review of police incident reports and supporting documents for charging; • The review and preparation of all cases prior to court which includes requesting 911 tapes, CCDR’s, photos, follow-up reports, contacting witnesses, drafting subpoenas, preparing complaints and jury instructions, and drafting plea offers; • Correspondence with the police department including but not limited to telephone conversations, meetings and negotiations with the police department and its officers, victims, defendants, witnesses and opposing counsel as required; and, • Preparation of documents required by the Court such as providing discovery, motions and supporting documents; • Communication with the court and court staff regarding calendars and case setting; • Correspondence with the public defenders office and defense counsel regarding case dispositions, • Requesting police reports from other agencies. • Requesting certified copies of a judgment and sentence; • Review of search warrants; and • The City, through its police department and such other departments, shall provide that support necessary to assist in the prosecution of criminal matters, including but not limited to the providing and forwarding of copies of all police reports and relevant documents in a timely manner and service of subpoenas as requested. Any requests for Prosecuting Attorney services not regularly scheduled shall be promptly relayed by the City and/or the court. CONTRACT FOR LEGAL SERVICES - 3 (Prosecuting Attorney for the City of Arlington) 4.2 Additional Services • Be available to the City of Arlington Police Department regarding matters affecting criminal prosecution; . In addition, the Prosecuting Attorney shall provide the following services: • Provide periodic training of City police officers and employees on legal matters affecting the satisfactory prosecution of criminal matters; • Make recommendations to the Police Chief and/or City Attorney concerning suggested amendments, modifications or additions to City ordinances affecting the satisfactory prosecution of criminal matters; • Provide periodic feedback to the Police Chief regarding the performance of City police officers in the discharge of their duties and other matters of mutual concern. CONTRACT FOR LEGAL SERVICES - 4 (Prosecuting Attorney for the City of Arlington) V. FEES AND COSTS 5.1 Retainer Attorney, the City agrees to pay to the Prosecuting Attorney a monthly retainer in the sum . As compensation for the services to be rendered by the Prosecuting of $9,266.25 $9,358.9175,000.00 per month, as long as the Court utilized for prosecution is located in Marysville, Washington. If the Court location for prosecution of the City criminal matters is moved from Marysville to the City of Arlington or such other location, then the monthly retainer shall be renegotiated by the parties, to be effective the month of the new court appearance. 5.2 Additional Compensation Attorney other than those services set forth hereinabove, the Prosecuting Attorney shall invoice the City at the rate of $100295.00 per hour. This includes RALJ appeals, drug/felony forfeitures, and legal services for representation in the District Courts and Superior Courts, and additional calendars added by the court, which have not been contracted for, but are necessary for the Cities prosecution. Legal services for representation in the Appellate Courts of the State of Washington or Federal Courts shall be negotiated separate from this Agreement. . If the City should require the services of the Prosecuting Should the court require the City to provide a Prosecuting Attorney at the Video In Custody hearings, the Prosecutor would appear daily for hearings. Our hourly rate would apply until the parties reach an addendum to this contract for a flat rate. 5.3 Expenses 5.4 . The City shall reimburse the Prosecuting Attorney for any reasonable out-of-pocket expenses that may be required in the performance of its duties as Prosecuting Attorney on behalf of the City. Expenses of jury preparation, exhibits, witnesses, (including SMD) and interpreters, police reports, and transcription costs shall be the sole responsibility of the City. Payment Terms 5.5 . Fees and costs are due from the City upon billings by the Prosecuting Attorney. A service charge shall accrue at the rate of 12% per annum (1% per month) and be added to any balance remaining unpaid sixty (60) days after the statement date. Fee Review shall be reviewed annually by the City Council. Changes in fees shall be first proposed by the Prosecutor to the Mayor for consideration in the preparation of the Mayoral budget. Increases in such fee and cost structure, if any, shall be considered by the City Council as a part of its budget process. Such changes, if any, to the fee structure and the budget process approved by the City Council shall, upon acceptance by the Prosecutor, be made a part of this Agreement. If no proposals to the fee retainer are made, each January 1st, year the Prosecutor shall receive an annual cost of living increase at the rate equal to the current CPI %` for the calendar year for non- union employees, not to be less thanof 53%. annually. : The schedule of fees provided for in paragraph 5.1 shall apply for the contract period reflected in Article 6. Changes in fees, if any, shall be proposed by the Prosecutor and changes, if any, to the fee structure and the budget process approved by the City Council shall, upon acceptance by the Prosecutor, be made a part of this Agreement. CONTRACT FOR LEGAL SERVICES - 5 (Prosecuting Attorney for the City of Arlington) VI. CONTRACT PERIOD 6.1 Term 6.2 . This amended contract shall take effect on the 1st day of MayJulyJanuary 2011, 20087, and shall continue in effect until the 31st day of December, 201309. Renewal 6.3 . The Prosecuting Attorney shall submit a proposed contract commencing for the calendar year 20130 on or before the 1st 1st day of SeptemberOctober 2013, or unless otherwise agreed. , 2009 It is anticipated that negotiations for renewal of this contract will take place prior to the expiration of 2013,09; provided, however, that if no negotiations shall occur, this contract shall be renewed automatically for one calendar year subject to the same terms and conditions set forth herein, provided that there is no written opposition from either party. The City also retains the right to solicit other proposals for the Prosecuting Attorney at anytime. Termination . This contract may be terminated by the City or the Prosecuting Attorney upon ninety (90) days advance written notice in the event that it shall be determined that the quality of legal services provided by the Prosecuting Attorney and/or the support by the City does not meet the requirements set forth herein. VII. COLLECTION COSTS 7.1 In the event a party breaches this agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs associated with enforcing their rights herein. The parties acknowledge that venue shall be in the Snohomish County Superior Court. VIII. INSURANCE AND HOLD HARMLESS 8.1 Liability Insurance Attorney shall maintain professional liability and malpractice insurance that shall provide coverage for anyone acting for or on behalf of the Prosecuting Attorney in the performance of this contract, unless the acting attorney carries his or her own policy consistence with the Prosecuting Attorney. Such insurance shall be obtained from any insurance company authorized to do business as such in the State of Washington and shall have minimum policy limits of ONE MILLION DOLLARS ($1,000.000.00). . During the life of this contract, the Prosecuting 8.2 Acting Within Scope 8.3 . To the extent provided by law and irrespective of any insurance required of the Contractor, the Contractor shall defend and indemnify the City from any and all claims arising out of or in any way relating to this Agreement; provided, however, requirements of this paragraph shall not apply to that portion of such Claim that reflects the percentage of negligence of the City compared to the total negligence of all persons, firms, or corporations that resulted in the Claim. Conduct of City 8.4 . Nothing herein shall be interpreted to require the Prosecuting Attorney to indemnify the City, its officers, agents or employees from loss, claim or liability arising from negligent, wrongful or tortious conduct of the City, its officers, agents or employees. Conduct of Prosecuting Attorney. So long as the Prosecutor is acting within the scope of this contract and in accord with its ethical responsibilities under the provisions of the Rules of Professional Conduct, it shall be entitled to legal defense and representation as an official of the CONTRACT FOR LEGAL SERVICES - 6 (Prosecuting Attorney for the City of Arlington) City. Nothing herein shall be interpreted to require the City to indemnify the Prosecuting Attorney, its officers, agents or employees from loss, claim or liability arising from negligent, wrongful or tortuous conduct of the Prosecuting Attorney, its officers, agents or employees. the City to indemnify the Prosecuting Attorney, its officers, agents or employees from loss, claim or liability arising from negligent, wrongful or tortuous conduct of the Prosecuting Attorney, its officers, agents or employees. IX. AFFIRMATIVE ACTION 9.1 Non-Discrimination in Employment Contract, the Prosecuting Attorney shall comply with the Washington “Law Against Discrimination” and should any part of the performance contemplated hereunder be financed by federal funds, the Prosecuting Attorney shall comply with all applicable federal laws against discrimination in employment. Satisfactory performance of this clause by the Prosecuting Attorney shall include but not be limited to the following: . During the performance of this During the performance of this contract, Prosecuting Attorney shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, creed, marital status, age or the presence of any sensory, mental or physical handicap. Performance shall include, but not be limited to: employment, upgrading, demotion or transfer, recruitment advertising, layoff or termination, rates of pay or other form of compensation, and programs for training including apprenticeships, unless such distinctions are based upon a bona fide occupational qualification. X. NOTICES 10.1 Notices contract, such shall be deemed given if such is sent in writing by certified mail to his/her office, in the case of the Prosecuting Attorney, or to the Office of the Mayor, in the case of the City. . That if any notice is required or desired to be given under this 10.2 Entire Contract may be changed only by an agreement in writing signed by the party against whom enforcement of any waiver, change or modification, extension or discharge is sought. This contract contains the entire understanding of the parties. It IN WITNESS WHEREOF the parties have executed this Agreement on the ____ day of __________, 2010007. THE CITY OF ARLINGTON, a Washington Municipality CONTRACT FOR LEGAL SERVICES - 7 (Prosecuting Attorney for the City of Arlington) _______________________________________________ Margaret Larson, Mayor ZACHOR & THOMAS, Inc., P.S. _______________________________________________ H. James Zachor, Jr., President ATTEST/AUTHENTICATED: __________________________________ City Clerk, Content read, noted and approved: __________________________________ Steven J. Peiffle, WSBA#14704 Attorney for the City of Arlington