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HomeMy WebLinkAbout2007.03.26 Council Special Meeting Packet AGENDA PASCO CITY COUNCIL Special Meeting 7:00 p.m. March 26,2007 1. CALL TO ORDER. 2. ROLL CALL (a) Pledge of Allegiance. 3. BUSINESS ITEMS: *(a) Local Agency Agreement,Sacagawea Heritage Trail,Phase 2: 1. Agenda Report from Stan Strebel, Administrative &Community Services Director dated March 21,2007. 2. Resolution. 3. Proposed Agreement. MOTION: I move to approve Resolution No. , authorizing the City Manager to execute the Local Agency Agreement with the Washington State Department of Transportation for funding for the Sacagawea Heritage Trail,Phase 2 Construction Project. 4. ADJOURNMENT. AGENDA REPORT FOR: City Council March 21, 2007 TO: Gary Crutch a +anager Special Mtg.: 3/26/07 FROM: Stan Strebel, dim a and Community Services Directoor SUBJECT: Local Agency Agreement, Sacagawea Heritage Trail Phase 2 I. REFERENCE(S): A. Resolution B. Proposed Agreement II. ACTION REQUESTED OF COUNCIL/STAFF RECOMMENDATIONS: 3/26: Discussion 3/26: MOTION: I move to approve Resolution No. authorizing the City Manager to execute the Local Agency Agreement with the Washington State Department of Transportation for funding for the Sacagawea Heritage Trail, Phase 2 construction project. III. FISCAL IMPACT: $293,000 Federal Transportation Enhancement Funding for the final link of the Heritage Trail. IV. HISTORY AND FACTS BRIEF: A) The City was awarded Federal Transportation Enhancement Funding in the amount of$293,000 to assist in the development of the final phase (Cable Bridge to Port of Pasco)of the Sacagawea Heritage Trail. B) In order to obligate the funding the City must approve the attached Local Agency Agreement. Staff recommends approval of the agreement. C) City funding for this project was approved in the 2005 Capital Budget. As engineering work is still in progress,project costs are still only estimates. 3(a) RESOLUTION NO. A RESOLUTION authorizing the execution of a Local Agency Agreement with the Washington State Department of Transportation for Federal Aid Project funding for the Sacagawea Heritage Trail Phase 2. WHEREAS, the City is recipient of a federal aid project grant in the amount of $293,000, of Federal Highway Administration funding through the Washington State Department of Transportation; and WHEREAS, the City intends to utilize such funding for the development of the Sacagawea Heritage Trail Phase 2; and WHEREAS, the City is required to enter into a Local Agency Agreement with the State Department of Transportation in order to obligate said funding; NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO: SECTION 1: The City Manager is authorized to execute the Local Agency Agreement with the Washington State Department of Transportation for the Sacagawea Heritage Trail Phase 2 project. SECTION 2: City officials and staff are hereby directed and authorized to carry out all provisions of the agreement and to otherwise make preparations to undertake the project. PASSED by the City Council of the City of Pasco at a special meeting this 26th day of March 2007. Joyce Olson, Mayor ATTEST: Sandy Kenworthy, Deputy City Clerk APPROVED AS TO FORM: Lee Kerr, City Attorney AdMk � Washington State Local Agency Agreement CIAP Department of Transportation Agency City of Pasco CFDA No. 20.205 (Catalog of Federal Domestic Assistance) Address 525 N. 3rd Ave. Project No. Pasco, WA 99301 Agreement No. For OSC WSDOT Use Only The Local Agency having complied,or hereby agreeing to comply,with the terms and conditions set forth in(1)Title 23, U.S. Code Highways,(2)the regulations issued pursuant thereto, (3) Office of Management and Budget Circulars A-102, A-87 and A-133, (4) the policies and procedures promulgated by the Washington State Department of Transportation, and (5) the federal aid project agreement entered into between the State and Federal Government, relative to the above project,the Washington State Department of Transportation will authorize the Local Agency to proceed on the project by a separate notification.Federal funds which are to be obligated for the project may not exceed the amount shown herein on line r,column 3,without written authority by the State,subject to the approval of the Federal Highway Administration.All project costs not reimbursed by the Federal Government shall be the responsibility of the Local Agency. Project Description Name Sacagawea Heritage Trail Ph.2 Length 1.0 mile Termini Cable Bridge to Port of Pasco adjacent to Columbia River Description of Work Continuation of Sacagawea Heritage Trail and lowering of 12-1 levee. This project will include some minor grading and construction of a pedestrian bike path. Estimate of Funding Type of Work (1) (2) (3) Estimated Total Estimated Agency Estimated Project Funds Funds Federal Funds PE a.Agency % b.Other c. Other Federal Aid d. State Participation Ratio for PE e. Total PE Cost Estimate a+b+c+d Right of Way f.Agency . Other h. Other Federal Aid i. State Participation Ratio for RW i. Total R/W Cost Estimate f+ +h+i Construction k.Contract 292,000.00 0.00 292,000.00 I.Other non-participating 607,000.00 607,000.00 0.00 m.Other n. Other 100 % o.Agency Federal Aid . State 1,000.00 0.00 1,000.00 Participation Ratio for CN q.Total CN Cost Estimate k+l+ +n+o+ 900,000.00 607,000.00 293,000.00 r.Total Project Cost Estimate(e+j+q) 900,000.00 607,000.001 293,000.00 Agency Official Washington State Department of Transportation By By - Title City Manager Assistant Secretary for Highways and Local Programs Date Executed DOT Form 140-039 EF 1 Revised 01/2004 Construction Method of Financing (Check Method Selected) State Ad and Award ❑Method A-Advance Payment-Agency Share of total construction cost(based on contract award) ❑ Method B-Withhold from gas tax the Agency's share of total construction cost(line 4,column 2)in the amount of $ at$ per month for months. Local Force or Local Ad and Award ®Method C-Agency cost incurred with partial reimbursement The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and procedures, and as a condition to payment of the federal funds obligated, it accepts and will comply with the applicable provisions set forth below.Adopted by official action on Resolution/Ordinance No. Provisions I. Scope of Work 1.Preliminary engineering. The Agency shall provide all the work,labor,materials,and services necessary 2.Right of way acquisition. to perform the project which is described and set forth in detail in the"Project 3.Project construction. Description"and"Type of Work." In the event that right of way acquisition,or actual construction of the road, When the State acts for and on behalf of the Agency, the State shall be for which preliminary engineering is undertaken is not started by the closing of deemed an agent of the Agency and shall perform the services described and the tenth fiscal year following the fiscal year in which the agreement is executed, indicated in"Type of Work"on the face of this agreement, in accordance with the Agency will repay to the State the sum or sums of federal funds paid to the plans and specifications as proposed by the Agency and approved by the State Agency under the terms of this agreement(see Section IX). and the Federal Highway Administration. When the State acts for the Agency but is not subject to the right of control by The Agency agrees that all stages of construction necessary to provide the the Agency, the State shall have the right to perform the work subject to the initially planned complete facility within the limits of this project will conform ordinary procedures of the State and Federal Highway Administration. to at least the minimum values set by approved statewide design standards applicable to this class of highways, even though such additional work is II. Delegation of Authority financed without federal aid participation. The State is willing to fulfill the responsibilities to the Federal Government by The Agency agrees that on federal aid highway construction projects, the the administration of this project.The Agency agrees that the State shall have the current federal aid regulations which apply to liquidated damages relative to the full authority to carry out this administration. The State shall review, process, basis of federal participation in the project cost shall be applicable in the event and approve documents required for federal aid reimbursement in accordance the contractor fails to complete the contract within the contract time. with federal requirements. If the State advertises and awards the contract, the State will further act for the Agency in all matters concerning the project as VI. Payment and Partial Reimbursement requested by the Agency.If the Local Agency advertises and awards the project, the State shall review the work to ensure conformity with the approved plans and The total cost of the project, including all review and engineering costs and specifications. other expenses of the State, is to be paid by the Agency and by the Federal Government. Federal funding shall be in accordance with the Transportation Ill. Project Administration Equity Act for the 21st Century (TEA 21), as amended, and Office of Certain types of work and services shall be provided by the State on this Management and Budget circulars A-102,A-87 and A-133.The State shall not project as requested by the Agency and described in the Type of Work above.In be ultimately responsible for any of the costs of the project.The Agency shall be addition, the State will furnish qualified personnel for the supervision and ultimately responsible for all costs associated with the project which are not inspection of the work in progress. On Local Agency advertised and awarded reimbursed by the Federal Government. Nothing in this agreement shall be projects,the supervision and inspection shall be limited to ensuring all work is in construed as a promise by the State as to the amount or nature of federal conformance with approved plans, specifications,and federal aid requirements. participation in this project. The salary of such engineer or other supervisor and all other salaries and costs The Agency shall bill the state for federal aid project costs incurred in incurred by State forces upon the project will be considered a cost thereof. Alt conformity with applicable federal and state laws. The agency shall mimimize costs related to this project incurred by employees of the State in the customary the time elapsed between receipt of federal aid funds and subsequent payment of manner on highway payrolls and vouchers shalt be charged as costs of the incurred costs. Expenditures by the Local Agency for maintenance, general project. administration,supervision,and other overhead shall not be eligible for federal IV. Availability of Records participation unless an indirect cost plan has been approved by WSDOT. All project records in support of all costs incurred and actual expenditures The State will pay for State incurred costs on the project.Following payment, kept by the Agency are to be maintained in accordance with local government the State shall bill the Federal Government for reimbursement of those costs accounting procedures prescribed by the Washington State Auditor's Office,the eligible for federal participation to the extent that such costs are attributable and U.S. Department of Transportation, and the Washington State Department of properly allocable to this project.The State shall bill the Agency for that portion Transportation.The records shall be open to inspection by the State and Federal of State costs which were not reimbursed by the Federal Government (see Government at all reasonable times and shall be retained and made available for Section IX). such inspection for a period of not less than three years from the final payment of any federal aid funds to the Agency.Copies of said records shall be furnished to 1. Project Construction Costs the State and/or Federal Government upon request. Project construction financing will be accomplished by one of the three V. Compliance with Provisions methods as indicated in this agreement. - The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing by the State for each classification.The classifications of work for projects are: DOT Form 140-039 EF 2 Revised 01/2004 Method A—The Agency will place with the State,within(20)days after the X. Traffic Control,Signing, Marking, and Roadway execution of the construction contract,an advance in the amount of the Agency's Maintenance share of the total construction cost based on the contract award. The State will notify the Agency of the exact amount to be deposited with the State.The State The Agency will not permit any changes to be made in the provisions for will pay all costs incurred under the contract upon presentation of progress parking regulations and traffic control on this project without prior approval of billings from the contractor. Following such payments, the State will submit a the State and Federal Highway Administration. The Agency will not install or billing to the Federal Government for the federal aid participation share of the permit to be installed any signs,signals, or markings not in conformance with cost. When the project is substantially completed and final actual costs of the the standards approved by the Federal Highway Administration and MUTCD. project can be determined,the State will present the Agency with a final billing The Agency will,at its own expense,maintain the improvement covered by this showing the amount due the State or the amount due the Agency. This billing agreement, will be cleared by either a payment from the Agency to the State or by a refund from the State to the Agency. XI. Indemnity The Agency shall hold the Federal Government and the State harmless from Method B— The Agency's share of the total construction cost as shown on and shall process and defend at its own expense all claims,demands, or suits, the face of this agreement shall be withheld from its monthly fuel tax allotments. whether at law or equity brought against the Agency, State, or Federal The face of this agreement establishes the months in which the withholding shall Government, arising from the Agency's execution, performance, or failure to take place and the exact amount to be withheld each month. The extent of perform any of the provisions of this agreement, or of any other agreement or withholding will be confirmed by letter from the State at the time of contract contract connected with this agreement,or arising by reason of the participation award. Upon receipt of progress billings from the contractor, the State will of the State or Federal Government in the project,PROVIDED,nothing herein submit such billings to the Federal Government for payment of its participating shall require the Agency to reimburse the State or the Federal Government for portion of such billings. damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the Federal Government or the State. Method C —The Agency may submit vouchers to the State in the format prescribed by the State, in duplicate, not more than once per month for those XII. Nondiscrimination Provision costs eligible for Federal participation to the extent that such costs are directly No liability shall attach to the State or Federal Government except as attributable and properly allocable to this project. Expenditures by the Local Agency for maintenance,general administration,supervision,and other overhead expressly provided herein. shall not be eligible for Federal participation unless claimed under a previously The Agency shall not discriminate on the basis of race,color,national origin, approved indirect cost plan. or sex in the award and performance of any USDOT-assisted contract and/or The State shall reimburse the Agency for the Federal share of eligible project agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26. The Agency shall take all necessary and reasonable steps under costs up the amount shown on the face of this agreement.At the time audit, 49 CFR Part 26 to ensure nondiscrimination in the award and administration of the Agency will provide documentation of all costs incurred on the project.t, USDOT-assisted contracts and agreements. The WSDOT's DBE program,as required by 49 CFR Part 26 and as approved by USDOT, is incorporated by The State shall bill the Agency for all costs incurred by the Stale relative to the reference in this agreement. Implementation of this program is a legal project. The State shall also bill the Agency for the federal funds paid by the obligation and failure to carry out its terms shall be treated as a violation of this State to the Agency for project costs which are subsequently determined to be agreement. Upon notification to the Agency of its failure to carry out its ineligible for federal participation(see Section IX). approved program,the Department may impose sanctions as provided for under VII. Audit of Federal Consultant Contracts Part 26 and may,in appropriate cases,refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986(31 U.S.C. The Agency, if services of a consultant are required,shall be responsible for 3801 et seq.). audit of the consultant's records to determine eligible federal aid costs on the The report of said audit shall be in the Agency's The Agency hereby agrees that it will incorporate or cause to be incorporated project. p g cy's files and made into any contract for construction work, or modification thereof, as defined in available to the State and the Federal Government. the rules and regulations of the Secretary of Labor in 41 CFR Chapter 60,which An audit shall be conducted by the WSDOT Internal Audit Office in is paid for in whole or in part with funds obtained from the Federal Government accordance with generally accepted governmental auditing standards as issued by or borrowed on the credit of the Federal Government pursuant to a grant, the United States General Accounting Office by the Comptroller General of the contract,loan, insurance,or guarantee or understanding pursuant to any federal United States; WSDOT Manual M 27-50, Consultant Authorization, Selection, program involving such grant, contract, loan, insurance, or guarantee, the and Agreement Administration;memoranda of understanding between WSDOT required contract provisions for Federal-Aid Contracts(FHWA 1273),located in and FHWA;and Office of Management and Budget Circular A-133. Chapter 44 of the Local Agency Guidelines. If upon audit it is found that overpayment or participation of federal money in The Agency further agrees that it will be bound by the above equal ineligible items of cost has occurred,the Agency shall reimburse the State for the opportunity clause with respect to its own employment practices when it amount of such overpayment or excess participation(see Section IX). participates in federally assisted construction work: Provided, that if the applicant so participating is a State or Local Government, the above equal opportunity clause is not applicable to any agency, instrumentality, or VIII. Single Audit Act subdivision of such government which does not participate in work on or under The Agency, as a subrecipient of federal funds, shall adhere to the federal the contract. Office of Management and Budget (OMB) Circular A-133 as well as all The Agency also agrees: applicable federal and state statutes and regulations. A subrecipient who expends $500,000 or more in federal awards from all sources during a given (1) To assist and cooperate actively with the State obtaining the fiscal year shall have a single or program-specific audit performed for that year compliance of contractors and subcontractors with the equal opportunity clause and rules,regulations,and relevant orders of the Secretary of Labor. in accordance with the provisions of OMB Circular A-133. Upon conclusion of the A-133 audit,the Agency shall be responsible for ensuring that a copy of the (2) To furnish the State such information as it may require for the report is transmitted promptly to the State. supervision of such compliance and that it will otherwise assist the State in the discharge of its primary responsibility for securing compliance. IX. Payment of Billing The Agency agrees that if payment or arrangement for payment of any of the (3) To refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor State's billing relative to the project(e.g.,State force work,project cancellation, debarred.from, or who has not demonstrated eligibility for, government overpayment, cost ineligible for federal participation, etc.) is not made to the contracts and federally assisted construction contracts pursuant to the Executive State within 45 days after the Agency has been billed, the State shall effect Order. reimbursement of the total sum due from the regular monthly fuel tax allotments to the Agency from the Motor Vehicle Fund. No additional Federal project (4) To carry out such sanctions and penalties for violation of the equal funding will be approved until full payment is received unless otherwise directed opportunity clause as may be imposed upon contractors and subcontractors by the Assistant Secretary for Highways and Local Programs. the State,Federal Highway Administration,or the Secretary of Labor pursuant to Part II,subpart D of the Executive Order. DOT Form 140-039 EF Revised 01/2004 3 In addition,the Agency agrees that if it fails or refuses to comply with these XV. Venue for Claims and/or Causes of Action undertakings,the State may take any or all of the following actions: For the convenience of the parties to this contract,it is agreed that any claims (a) Cancel,terminate,or suspend this agreement in whole or in part; and/or causes of action which the Local Agency has against the State of Washington, growing out of this contract or the project with which it is (b) Refrain from extending any further assistance to the Agency under the concerned,shall be brought only in the Superior Court for Thurston County. program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from the Agency;and XVI. Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying (c) Refer the case to the Department of Justice for appropriate legal The approving authority certifies, to the best of his or her knowledge and proceedings. belief,that: X111. Liquidated Damages (1) No federal appropriated funds have been paid or will be paid,by or on behalf of the undersigned, to any person for influencing or attempting to The Agency hereby agrees that the liquidated damages provisions of 23 CFR influence an officer or employee of any federal agency,a member of Congress, Part 635, Subpart 127, as supplemented, relative to the amount of Federal an officer or employee of Congress,or an employee of a member of Congress in participation in the project cost, shall be applicable in the event the contractor connection with the awarding of any federal contract,the making of any federal fails to complete the contract within the contract time. Failure to include grant, the making of any federal loan, the entering into of any cooperative liquidated damages provision will not relieve the Agency from reduction of agreement, and the extension, continuation, renewal, amendment, or federal participation in accordance with this paragraph. modification of any federal contract,grant,loan,or cooperative agreement. XIV. Termination for Public Convenience (2) If any funds other than federal appropriated funds have been paid or will The Secretary of the Washington State Department of Transportation may be paid to any person for influencing or attempting to influence an officer or terminate the contract in whole,or from time to time in part,whenever: employee of any federal agency,a member of Congress,an officer or employee (1) The requisite federal funding becomes unavailable through failure of of Congress,or an employee of a member of Congress in connection with this appropriation or otherwise. federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit the Standard Form - LLL, "Disclosure Form to Report (2) The contractor is prevented from proceeding with the work as a direct Lobbying,"in accordance with its instructions. result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense,or an Executive Order of the President (3) The undersigned shall require that the language of this certification be or Governor of the State with respect to the preservation of energy resources. included in the award documents for all subawards at all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and (3) The contractor is prevented from proceeding with the work by reason of a cooperative agreements)which exceed$100,000,and that all such subrecipients preliminary, special, or permanent restraining order of a court of competent shall certify and disclose accordingly. jurisdiction where the issuance of such order is primarily caused by the acts or This certification is a material representation of fact upon which reliance was omissions of persons or agencies other than the contractor. placed when this transaction was made or entered into. Submission of this (4) The Secretary determines that such termination is in the best interests of certification as a prerequisite for making or entering into this transaction imposed by Section 1352,"rifle 31,U.S.Code. Any person who fails to file the the State. required certification shall be subject to a civil penalty of not less than$10,000 and not more than$100,000 for each such failure. Additional Provisions DOT Form 140-039 EF 4 Revised 01/2004 AGENDA PASCO CITY COUNCIL Workshop Meeting 7:00 p.m. March 26, 2007 1. CALL TO ORDER 2. VERBAL REPORTS FROM COUNCILMEMBERS: 3. ITEMS FOR DISCUSSION: (a) Parks System Presentation. (NO WRITTEN MATERIAL ON AGENDA) Presented by Dan Dotta,Facilities Manager. (b) Waiver of Utility Service Requirement — United Agri Products Distribution, PMC Chapter 16.06: 1. Agenda Report from Robert J. Alberts,Public Works Director dated March 20,2007. 2. Vicinity Map. 3. Petition for Utility Service Waiver. (c) T-Mobile Cell Site License Agreement: 1. Agenda Report from Gary Crutchfield,City Manager dated March 23,2007. 2. Proposed Site License Agreement. (d) Service Agreement with TRIDEC: 1. Agenda Report from Richard J. Smith, Community & Economic Development Director dated March 22, 2007. 2. Proposed Agreement. (e) TRAC Operating Subsidy(2006): 1. Agenda Report from Gary Crutchfield, City Manager dated March 22, 2007. 2. Memorandum from TRAC Manager to City Manager. 4. OTHER ITEMS FOR DISCUSSION: (a) (b) (c) 5. EXECUTIVE SESSION: (a) (b) (c) 6. ADJOURNMENT. Reminders: 1. 5:00 p.m., Monday, March 26, Port of Benton — Hanford Area Economic Investment Fund Board Meeting. (COUNCILMEMBER MATT WATKINS,Rep.; JOE JACKSON,Alt.) AGENDA REPORT NO. 10 i FOR: City Council DATE: 3/20/07 TO: Gary Crutchfi Manager Workshop: 03/26/07 Regular: 04/02/07 FROM: Robert J. Albe , is orks Director SUBJECT: Waiver of Utility Service Requirement—United Agri Products Distribution P.M.C. Chapter 16.06 I. REFERENCE(S): 1. Vicinity Map 2. Petition for Utility Service Waiver II. ACTION REQUESTED OF COUNCIL/STAFF RECOMMENDATIONS: 3/26/07: Discussion 04/02/07: MOTION: I move to deny the sewer utility waiver as requested by United Agri Products Distribution. III. FISCAL IMPACT: None IV. HISTORY AND FACTS BRIEF: A. The applicant has requested a sewer waiver in order to use an existing septic tank system for their business. P.M.C. 16.06 requires connection to the utility system when a building permit is issued unless such requirement is waived by action of the City Council. B. The City's sewer system as shown on the vicinity map is 228 feet from the property. The extension of the sewer system to service the property would not be difficult and would be consistent with past practices. A waiver would go against the overall goal of providing sewer service in this area. V. DISCUSSION: Any determination or decision by the City Council to waive utility requirements is to be based upon the waiver criteria provided in P.M.C. 16.06.040 as follows: (1) Special circumstances applicable to the property in question or the intended use that do not generally apply to other properties or classes of uses in the same vicinity or zoning classification. The sewer system is within 228 feet from the property. (2) A waiver is necessary for the preservation and enjoyment of a substantial property right or use possessed by other properties in the same vicinity and the same zoning classification, which because of special circumstances is denied to the property in question. There are properties in the area with septic tank systems that were allowed prior to being annexed into the city limits. Several more properties have been served with sewer systems in the past eight years. (3) The granting of the waiver will not be detrimental to the public welfare or injurious to other property improvements in such vicinity and zoning classification, which the subject is located. The sewer system was previously extended to meet property needs in the area. 3(b) (4) The granting of a waiver will not conflict with the general intent of this chapter. The Uniform Building Code requires permanent structures to be provided with adequate health and sanitation facilities. A building with a septic tank/drain field would meet the sanitation requirements of the Uniform Building Code. With the sewer system being nearby, a waiver would not meet the intent of P.M.C. 16.06. Health and sanitation requirements for this properly would be better served by a sanitary sewer line. In the past when Council approved utility waivers the following conditions applied: (a) Require the applicant to participate in future L.I.D. or U.L.I.D. activities commenced by petition or resolution that would involve the property in question; (b) Require the applicant to pay an equitable share of any private utility extensions abutting the applicant's property. Based upon a review of the criteria above, Staff would recommend denial of the sewer waiver request. • � r �.`� `' `�l I �x sc UNITED AG PRODUCTS TIPPET IN. ' w. . � EXI �KAT�t LINE - z w y 40 0G NTS . h UNITED AG PRODUCTS E- 4 xw. � - n, . N II G 14W ' r 463.ft', • I =i I E 228 ft �I • 3 zl , ,31 } ! I ! TIPPET IN. I i EXISTING SEWER UNE � CITY OF PASCO PETITION FOR UTILITY SERVICE WAIVER page 1 of 2 PLEASE COMPLETE-rHE APPLICATION CLEARLY AND ACCURATELY United Agri Products Distribution (Name of Owner/Applicant) (1st party) (Name of Owner/Applicant) (2nd party) 1315 E. St. Helens St. (Address) (Address) Pasco, WA 99302 509-545-1866 (Phone) (Phone) �9 9 (Signature) (Signature) General Location of Property: 300 It north of Tippett Lane at 6421 Burlington Street, and (give location relative to streets, intersections, etc- 1/4 mile north of Foster Wells Road on Burlington Street, Legal Description of Property for which the Utility Waiver is requested: Lot 1 -Short Plat 77-26 City of Pasco, and identified as Assessors Parcel No. 113-110-213 Current Land Use of Property: Warehouse with office space 1) Type of utility waiver requested? Water Sewer X 2) Describe the reason for requesting a waiver from the requirement to connect to the municipal water and/or sewer system? The existing septic system was inspected on 12-27-06 and approved for 12 employees and 10 visitors. See attached BFHD valuation. There will be no process or,industrial waste generated by the proposed activity. 3) Describe alternative method of utility provision from which a waiver is requested? UAP will use the approved and existing septic system for domestic usage. There is not a physical need for connecting to the public sewer system. cont'd RECENED FEB 2 6 2007 pUBLIC 11,10RIIKS IN0.1 CITY OF PASCO page 2 of 2 PETITION FOR UTILITY SERVICE WAIVER 4) Special circumstances applicable to the property in question or intended use? At this location, UAP will use City Of Pasco water to blend applicable ingredients into liquid fertilizer for agricultural application. Eighty percent of the finished product is used within a 20 mile radius of the proposed process plant. 5) What changed or changing conditions warrant the proposed Utility Waiver? For 30 years UAP had previously conducted this business activity at the Burlington Northem Ice House just south of I-182. Because BNSF did not renew the UAP lease,the subject property herein was purchased to become the relocation site. 6) What other properties in the same vicinity and within the same zoning district have received a Utility Waiver or are not connected to one or both of the municipal utility systems? None of the nearby properties have received a Utility Waiver. Three adjacent businesses are not connected to the sewer system. 7) How will the public health and welfare be protected by granting the Utility Service Waiver? The existing septic system was inspected by the Benton Franklin Health District 12-27-06 and continued use of the system was deemed appropriate for the existing shop (warehouse) provided the daily design flow does not exceed 240 gpd(maximum of 12 employees& 10 visitors) and the shop is connected to an approved public water supply. APPLICATION FOR EVALUATION OF AN EXISTING ON-SITE SEWAGE DISPOSAL SYSTEM rr-.ES: PUBLVG ENVIRONMENTAL HEALTH Ncwdwdling: $00 W.Canal Drive 307 7m Avenue $144.00 r-.���m•f�romosa• P+ac�cc Kennewick,WA 99336 Presser,WA 99350 �yl code 54 372.D0 (509)582-7761,exL 246 (509)786-1633 code5411 Account#__030&22675 Log 11 {Ib ALI+ITC.�iS> � NAME OF APPLICANT: UAP DiShibution HOME TELEPHONE: 545-1806 WORK TELEPHONE: 545-1866 CURRENT MAILING ADDRESS: 311 TiMtt Lane CITY Pasco ZIP 99301 PARCEL NUMBER- 113-110-313 swrx)N 6 MWNSHIP 9 RANGE 30 LEGAL DESCRIPTION OF PARCEL: Lot I Short Plat 77-26 P14YSICAL ADDRESS: 311 Tip„pgtt Lane - BUILDER OR ENGINEER: TELEPHONE: PURPOSE OF EVALUATION: NEW DWELLINGPLACE:VIEW: ADDITION POOL GARAGE SHOP ETC, CHANGE IN USE X OTFIER (tom dimiasuun,ata) TOTAL NUMBER OF BEDROOMS IN DWELLING,OR TYPE OF CONIPMERCIAL USE office 3 employws; 10 visitors LO-r SIZE: 2 arras in acres or square feet DISTANCE TO PUBLIC SEWER EXISTING SEWAGE SYSTEM INFORMATION SIZE OF SEPTIC TANK______jlWns DRAMPTELD sguut roctage OTHER Auuo r"agc APPROXIMATE DATE OF SEWAGE SYSTEM INSTALLATION INSTALLER WATER SUPPLY: SINGLE FAMILY WELL -MUNICIPAL/COMMUNITY(NAME) Clty of Pasco LSE REVERS&SIDJE FOR PLOT PLAN OR ATTACH QN A SEPIIRAI IJ PAGE MAIL REPORT TO: NAME: UAP Distribution lattni Dave Fi erl ADDRESS POB 7_ 72 8 C1TYlSTATEMP Pasco WA 99302 Tall a: alp; Signaturd^r FOR DEPARTMENT USE ONLY DATE TANK PUMPED 12-27-06 NAME OF SEPTIC TANK PUMPER CUTS is DATE OF SITE EVALUATION 12-27-06 EVALUATOR EVALUATION FINDINGS INDICATE: Chris Plager Continued use of the system is appropriate for the existing shop provided the daily design flow does;not exceed 240 0/day (maximum of 12 employees& 10 visitors)and the shop is connected to an approved public water supply. liFHD-E! -FC# is(Rev.6A2,t-96,4-`IS,12-99) C041 CQ co a ° o co co �+ a I w°o� � d, � , CQ c CQ I m La H 9z-z- dS ° jo� I � _ 1 co m — U N 41- I AGENDA REPORT TO: City Council March 23, 2007 FROM: Gary Crutch anager Workshop Mtg.: 3/26/07 Regular Mtg.: 4/2/07 SUBJECT: T-Mobile Cell Site License Agreement I. REFERENCE(S): 1. Proposed Site License Agreement II. ACTION REQUESTED OF COUNCIL/STAFF RECOMMENDATIONS: 3/26: Discussion 4/2: MOTION: I move to approve the Site License Agreement with T-Mobile West Corporation and, further, authorize the City Manager to sign the agreement. III. FISCAL IMPACT: Increase in monthly rental of$600/monthly for the first five years; additional rental to be negotiated for second five-year period. Water/sewer fund. IV. HISTORY AND FACTS BRIEF: A) T-Mobile entered into a license agreement with the city to install a cell phone communication facility on the city's water tower in 2001. The former license agreement required a monthly rental fee of$800 in addition to a one-time $20,000 "move-in" fee. As the water tower is owned by the water/sewer fund, all fees collected by the city accrue to the benefit of the water/sewer fund. B) The original five-year license agreement expired at the end of August 2006. T- Mobile and the city representatives have been negotiating a successor agreement for several months, concluding with the proposed license agreement presented herewith. C) The proposed license agreement consists of two five-year terms, the first of which requires rental payment at the rate of$1,400/month. The second five-year term, at the option of T-Mobile, may be renewed but only upon mutually-agreed monthly rental fee. V. DISCUSSION: A) Given that there is no physical change expected as a result of the new license agreement and the financial benefit to the city utility fund reflects market value, staff recommends Council approval. 3(c) Recorded at the Request of: City of Pasco 525 North 3rd Pasco, WA 99301 COMMUNICATION SITE LICENSE AGREEMENT THIS COMMUNICATION SITE LICENSE AGREEMENT ("Agreement") dated September 1, 2006 (the "Effective Date"), between CITY OF PASCO, a Washington Municipal Corporation, hereinafter referred to as "Licensor", and T-MOBILE WEST CORPORATION, a Delaware Corporation, hereinafter referred to as "Licensee." For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Communication Site. Licensor is the owner of real property legally described in Exhibit A, attached hereto and incorporated herein by this reference, upon which is located a municipal water tower designated as the "Old Tower" which will be the sole platform to which this license applies, generally located at Road 68 and Broadmoor Road in Pasco, Franklin County, Washington (the portions of the real property and Old Tower being licensed under this Agreement are referred to herein as the "Premises"). 2. Intentionally Deleted. 3. Use. The Premises may be used by Licensee for any lawful activity in connection with the provision of wireless communication services, including the construction, maintenance and operation of related communication facilities. Licensee, at its sole expense, shall secure all necessary licenses, permits and all other necessary governmental approvals for its intended uses of the Premises. Licensor shall, cooperate with Licensee in providing the necessary information for the completion of such applications, required licenses,permits and approvals. 4. Term. The initial term of this Agreement shall be for a period of five (5) years commencing on September 1, 2006, and expiring on August 31, 2011, unless earlier terminated as provided herein. Licensee shall have the right to extend the term of this Agreement for one (1) additional five (5) year renewal term on the same terms and conditions set forth herein, except the license fee shall be the fair reasonable rental value of the premises as negotiated Communication Site License Agreement- 1 between the parties. Licensee shall provide Licensor notice of Licensee's intent to renew at least thirty(30)days prior to the expiration of the initial term of this Agreement. 5. License Fees. During the initial term, Licensee shall pay to Licensor as license fee Fourteen Hundred Dollars ($1,400.00) per month. License fees are payable to Licensor at 525 North 3rd, Pasco, Washington 99301. In the event any payment required under this Agreement is not paid within thirty (30) days of the date due, this failure shall constitute a default of this Agreement, a late fee in an amount equal to five percent (5%) of the delinquent fee, shall be assessed and the balance shall accrue interest at the rate of 12%per annum until paid in full. 6. Improvements. Licensee shall provide Licensor, in advance of construction, plans and specifications for Licensee's improvements and related facilities to be located upon the Premises for Licensoe's prior approval, which approval shall not be unreasonably withheld. Upon such approval, Licensee shall have the right to construct, maintain, install, repair, secure, replace, remove and operate on the Premises, radio communication facilities, including but not limited to utility lines, transmission lines, ice bridge(s), electronic equipment, transmitting and receiving antennas, microwave dishes, and equipment to be located upon the Old Tower; and air conditioned equipment shelters or cabinets, power generator and generator pad, and supporting equipment and structures thereon to be located within the equipment building located upon the ground space referenced above (collectively, the "Licensee's Facilities"). In no event shall antennas, dishes, or other reception devices be located upon the equipment building. In connection therewith, Licensee has the right to do all work necessary to prepare, add, maintain and alter the Premises, so long as it does not impair or interfere the use of the site by other licensees, for Licensee's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of Licensee's construction and installation work shall be performed in accordance with the plans and specifications approved by the Licensor, at Licensee's sole cost and expense, in a good and workmanlike manner and conforming with all Federal Communications Commission ("FCC") rules and regulations. Title to the Licensee's Facilities and any equipment placed on the Premises by Licensee shall be held by Licensee and shall not be considered fixtures. Licensee has the right to remove the Licensee's Facilities on or before the expiration or the earlier termination of this Agreement, and Licensee shall promptly repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Licensee shall remove the Licensee's Facilities from the Premises returning those portions of the Premises to a clear, graded and in good condition. Upon loss of governmental licensing or abandonment of the Licensee's Facilities resulting in Licensee failing to conduct communication operations at the site for six (6) months or longer, Licensee shall immediately remove the Licensee's Facilities at its sole expense. Licensee shall maintain its portion of the Premises in a clean, secure and in a condition free of accumulation of weeds and debris. Licensee shall design and construct its facilities in such a manner as to withstand seismic, ice and wind loads and such other hazards as may be reasonably expected to affect the Premises. Communication Site License Agreement-2 Licensor acknowledges and agrees that Licensee's Facilities were installed on the Premises pursuant to a prior agreement between Licensor and Licensee (or its predecessor in interest) and Licensor approves of such installation in all respects. Licensee shall construct at its expense, modifications in the exterior security fencing to provide access to its onground equipment facility in a manner and configuration as approved by Licensee which will allow Licensee access to its equipment facility without jeopardizing the integrity of the Licensor's water tower security and in compliance with the applicable Homeland Security Regulations in affect. 7. Access and Utilities. 7.1 Licensor shall provide Licensee, Licensee's employees, agents, contractors, subcontractors and assigns with access to the Premises, consistent with the Homeland Security Regulations in place affecting the Premises. Licensor shall permit access to Licensee's onground equipment facility outside of the security area, including keys for locking gates and barriers, twenty-four (24) hours a day, seven (7) days a week, at no charge to Licensee. Licensor grants Licensee, and Licensee's agents, employees and contractors, a non-exclusive right of entry for pedestrian and vehicular ingress and egress to the Premises upon easements held by the Licensor and on the Premises for Licensee's site. Licensee shall maintain the security of the Premises by locking all gates upon completion of their entry. Licensee shall be permitted access within the Licensor's water tower security area only upon compliance with the Homeland Security Regulations applicable to the facility including escort and supervision within the security area and upon the water tank by a Licensor's authorized representative. Licensor shall provide Licensee a contact number, 24-hours per day, seven days per week for emergency or other access within the secured area. Licensee shall pay all additional costs incurred by the Licensor for overtime or other actual costs necessitated for access to the facility security area at times other than the normal working hours of the Licensor. 7.2 Licensor shall maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Licensor shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Licensee's use of such roadways. 7.3 Licensee shall pay for the electricity it consumes in its operations as charged by the local utility provider. Licensee shall have the right to draw electricity and other utilities from the existing utilities on the.Premises or obtain separate utility service from any electric utility provider that will provide service to the Premises, including a standby power generator for Licensee's exclusive use. In connection therewith, Licensee hereby grants to the local telephone, power and utility companies (as appropriate) non-exclusive rights to locate, construct, install, operate, maintain, repair, alter, extend, and/or remove cables and lines on, over and across a portion of the Licensor's Premises as necessary or desirable therefore. Licensor agrees to sign such documents or easements, at no cost to Licensee or the utility companies, as may be required by said utility companies to provide such service to the Premises. Any easements or rights necessary for such power or other utilities will be at locations reasonably acceptable to Licensor and the servicing utility company. Communication Site License Agreement-3 8. Interference. Licensee shall operate Licensee's Facilities in compliance with all FCC requirements including those prohibiting interference to communications facilities of Licensor or other licensees of the Premises, provided that the installation and operation of any such facilities predate the installation of the Licensee's Facilities. Subsequent to the installation of the Licensee's Facilities, Licensor will not, and will not permit its licensees to, install new equipment on or make any alterations to the Premises, if such modifications are likely to cause interference with Licensee's operations. In the event interference occurs, Licensor agrees to use best efforts to eliminate such interference in a reasonable time period. 9. Taxes. Licensee shall pay any personal property taxes assessed against Licensee's Facilities and Licensor shall pay when due, all real property taxes and other taxes, fees and assessments attributed to the Premises. 10. Termination. 10.1 This Agreement may be terminated without further liability as follows: (i) by Licensor if Licensee fails to pay any license fee or other payment required hereunder within ten (10) days after receiving written notice of such failure from Licensor, or(ii) by either party upon a default of any non-monetary covenant or term hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default, except that this Agreement shall not be terminated if the default cannot reasonably be cured within such thirty (30) day period, and the defaulting party has commenced to cure the default during that period and diligently pursues the cure to completion. 10.2 This Agreement may also be terminated by Licensee without further liability on thirty(30) days prior written notice: (i) if Licensee is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Licensee from installing,removing, replacing, maintaining or operating the Licensee's Facilities or using the Premises in the manner intended by Licensee; (ii) if Licensee determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference, or (iii) or Licensee otherwise determines, within its sole discretion, that it will be unable to use the Premises for Licensee's intended purpose. 11. Destruction or Condemnation. If the Premises or Licensee's Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Licensee may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to the Licensor no more than forty-five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. 12. Insurance; Subrogation; and Indemnity. 12.1 Licensee shall provided Commercial General Liability Insurance providing for bodily injury, death and property damage in a combined single limit of not less than One Million Dollars and No Cents ($1,000,000.00) per occurrence. Such insurance shall insure, on an Communication Site License Agreement-4 occurrence basis, against all liability of the Licensee, its employees, and agents arising out of or in connection with the Licensee's use of the Premises. Licensor shall be named as an additional insured on Licensee's policy of insurance, and Licensee shall provide Licensor a Certificate of Insurance evidencing coverage required by this paragraph within thirty (30) days after the date this Agreement is signed by both parties. Licensor shall be notified by Licensee or its insurer of any cancellation, termination or the lapse of any policy required herein within thirty (30) days prior to the termination of the coverage. 12.2 Licensor and Licensee hereby mutually release each other(and their successors or assigns) from liability and waive all right of recovery against the other for any loss or damage covered by their respective first-party property insurance policies for all perils insured thereunder. In the event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. 12.3 Licensor and Licensee shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party or its agents, employees or contractors in or about the Premises. The duties described in this Paragraph 12.3 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 13. Assignment. Licensee may not assign or otherwise transfer all or any part of its interest in this Agreement or Licensee's Facilities without the prior written consent of the Licensor, which will not be unreasonably withheld, conditioned or delayed; provided, however, that Licensee may assign its interest to a parent company, any subsidiary or affiliate or to any successor in interest or entity acquiring fifty-one percent (51%) or more of the stock or assets, subject to any financing entities' interest, if any, in this Agreement as set forth in paragraph 14(b) below, or in connection with the transfer of Licensee's FCC authorization to operate a commercial mobile radio base station at the site. Licensor may assign this Agreement upon written notice to Licensee subject to the assignee's assuming all of Licensor's obligations herein, including but not limited to those set forth in paragraph 14 below. Licensee shall not sublicense or permit the use by others of any portion or all of Licensee's site to one or more entities for communication or other uses without the written consent of the Licensor, which consent shall not be unreasonably withheld. Licensee shall, however, have full rights to mortgage, pledge, hypothecate or otherwise assign this Agreement and Licensee's Facilities to any financing entity or agent on behalf of any financing entity to which Licensee (i) has obligations for borrowed money or in respect of guarantees thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, banker's acceptances and similar security instruments or guaranties. Communication Site License Agreement-5 14. Waiver of Licensor's Lien. (a) Licensor hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Licensee's Facilities or any portion thereof, which for the purposes of this Agreement are conclusively construed as Licensee's personal property and not fixtures. (b) Licensor acknowledges that Licensee may have entered into or may enter into financing arrangements, including Promissory Notes, Security Agreements and Financing Statements for the financing of the Licensee's Facilities with a third party financing entity. In connection therewith, Licensor (i) consents to the installation of Licensee's Facilities subject to security interests; (ii) disclaims any interest in Licensee's Facilities, its fixtures or otherwise; (iii) agrees that the Licensee, or any entity holding a security interest therein, may remove Licensee's Facilities at any time without recourse to legal proceeding. Neither Licensee, nor any financing entity granting a security interest in Licensee's Facilities, shall have any right to claim any interest in real property by lien or by permissive possession other than as provided in this Agreement. 15. Title and Ouiet Enioyment. Licensor represents and warrants that (i) it has full right, power, and authority to execute this Agreement, (ii) Licensee may peacefully and quietly enjoy the Premises and such access thereto, provided that Licensee is not in default hereunder after notice and expiration of all cure periods, (iii) it has obtained all necessary approvals and consents, and has taken all necessary action to enable Licensor to enter into this Agreement and allow the Licensee to install and operate the Licensee's Facilities on the Premises, including without limitation, approvals and consents as may be necessary from other tenants, licensees and occupants of Licensor's property, and (iv) the Premises and access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date. 16. Environmental. As of the Effective Date of this Agreement: (1) Licensee hereby represents and warrants that it shall not use, generate, handle, store or dispose any Hazardous Materials in, on, under, upon or affecting the Premises in violation of any applicable law or regulation, and (2) Licensor hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Materials located in, on, under, upon or affecting the Premises in violation of any applicable law or regulation; (ii) no notice has been received by or on behalf of Licensee from governmental entity or any person or entity claiming any violation of any applicable environmental law or regulation in, on, under, upon or affecting the Premises; (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Materials, in, on, under upon, or affecting the Premises in violation of any applicable law or regulation. Without limiting Paragraph 12.3, Licensor and Licensee shall each indemnify, defend and hold the other harmless from and against all losses (specifically including, without limitation, reasonable attorneys', engineers', consultants' and experts' fees, costs and expenses) arising from (i) any breach of any representation or warranty made in this paragraph by such party; and/or (ii) environmental conditions or noncompliance with any applicable law or regulation that result, in the case of Licensee, from operations in or about the Premises by Licensee or Licensee's agents, employees or contractors, and in the case of Licensor, from the ownership or control of, or operations in or about, the property by Licensor or Licensor's predecessors in interest, and their respective agents, employees, contractors, tenants, guests or other parties. The provisions of this paragraph shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. "Hazardous Materials" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or Communication Site License Agreement-6 contaminants or terms of similar import, as such terms are defined in any applicable environmental law or regulation, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosive, radioactive materials, asbestos in any form, polychlorinated biphenyls and other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any applicable environmental law or regulation. 17. Notices. All notices, requests, demand and other communication hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for next-business-day delivery by nationally recognized overnight carrier to the following addresses: If to Licensor: City of Pasco Attn: Robert Alberts 525 North 3rd Pasco, WA 99301 Telephone:(509) 545-3444 Fax: (509) 543-5757 With a copy to: Leland B. Kerr Paine, Hamblen, Coffin, Brooke &Miller, LLP 7025 West Grandridge Blvd., Suite A Kennewick, WA 99336 Telephone: (509) 735-_1542 Fax: (509) 735-0506 If to Licensee: T-Mobile West Corporation Attn: Lease Administrator 19807 North Creek Parkway North Bothell, WA 98011 Telephone: ( ) Fax: ( ) With a copy to: T-Mobile West Corporation Attn: PCS Lease Administration 12920 SE 38th Street Bellevue,WA 98006 Telephone: ( ) Fax: ( ) Communication Site License Agreement-7 Licensor or Licensee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt or refusal to accept delivery. 18. Markine and Lighting. Licensee shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC to the extent such requirements relate solely to the installation and use of Licensee's Facilities on the Premises. Should Licensee be cited because Licensee's Facilities are not in compliance and should Licensee fail to cure the condition of noncompliance, Licensor may either terminate this Agreement or proceed to cure the conditions of noncompliance at Licensee's expense, which amounts shall be assessed against Licensee together with interest at the rate of one percent (1%) per annum. 19. Miscellaneous. 19.1 For the purposes of this Agreement, time shall be of the essence. 19.2 In the event of a dispute concerning the breach, interpretation, or enforcement of this Agreement, the party deeming themselves aggrieved, shall immediately notify the other for the purposes of meeting in a good faith attempt to resolve the dispute. In the event the parties are unable to promptly resolve the dispute, the dispute shall be construed and resolved under the laws of the State of Washington, and the substantially prevailing party in any litigation shall be awarded its reasonable attorney's fees and costs. 19.3 If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to the persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 19.4 This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. 19.5 This Agreement constitutes the entire Agreement between the parties, and supersedes all understandings, offers, negotiations and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of any of the terms and conditions of this Agreement must be in writing and executed by both parties. No provision of this Agreement will be deemed waived by either party unless expressly waived in writing by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provision of this Agreement shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision. The persons who have executed this Agreement represent and warrant that they are duly authorized to execute this Agreement in their individual or representative capacities as indicated. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Communication Site License Agreement-8 IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first written above. LICENSOR: LICENSEE: CITY OF PASCO T-MOBILE WEST CORPORATION By: By: Name: Gary Crutchfield Name: Kautilya Lanba Title: City Manager Title: Area Director, Engineering & Operations Date: Date: Tax I.D.: Tax I.D.: Communication Site License Agreement-9 STATE OF WASHINGTON ) ss. County of Pasco ) On this day personally appeared GARY CRUTCHFIELD, City Manager of the City of Pasco, to be known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary act and deed for the uses and purposes therein mentioned. GIVEN under my hand and official seal this day of , 2007. Print Name Notary Public in and for the State of Washington Residing at My Commission Expires: STATE OF WASHINGTON ) ss. County of KING ) On this day personally appeared KAUTILYA LANBA, Area Director, Engineering and Operations, of T-MOBILE WEST CORPORATION, to be known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he/she signed the same as his/her free and voluntary act and deed for the uses and purposes therein mentioned. GIVEN under my hand and official seal this day of , 2007. Print Name Notary Public in and for the State of Washington Residing at My Commission Expires: Communication Site License Agreement- 10 AGENDA REPORT TO: City Council March 22, 2007 FROM: Gary Crutchfi i anager Workshop Mtg.: 3/26/07 Regular Mtg.: 4/02/07 SUBJECT: TRAC Opera ng Subsidy (2006) I. REFERENCE(S): 1. Memorandum from TRAC Manager to City Manager II. ACTION REQUESTED OF COUNCIL/ STAFF RECOMMENDATIONS: 3/26: Discussion 4/02: MOTION: I move to approve the 2006 TRAC operating deficit increase of$61,466 and authorize payment thereof to Franklin County and, further, direct that the expenditure be included in the 2007 year end supplemental budget. III. FISCAL IMPACT: Additional expense in the TRAC operating fund will effectively require subsidy from the general fund in that amount at year end. IV. HISTORY AND FACTS BRIEF: A) The city is obligated, by contract, to share (50-50) the operating deficit of the TRAC facility each year. That deficit has ranged from a low of about $200,000 to as much as $700,000; the recent trend has been in the $300,000 range annually. B) Due principally to some accounting errors by the County last year (which were discovered late in the year and led to higher than anticipated expenses), the actual 2006 operating deficit totaled $616,000. The 2006 TRAC operating budget, however, anticipated a loss of only $293,000. Consequently, the 2006 TRAC operating budget was overspent by $323,000. C) Franklin County has offset most of the extraordinary deficit but a portion has been requested from the city (in addition to the budgeted share of$147,000). Please refer to reference 1. V. DISCUSSION: A) The County has acknowledged its responsibility for the accounting errors by accepting responsibility for $200,000 more than the share billed to the city. In view of the County's acknowledgement, staff recommends Council approval of the additional expenditure. 3(e) MAR 2 2 2007 To: Gary Crutchfield From: Troy Woody +=s':;: Cc: County Administrator, Commissioners RE: TRAC Centers 2006 subsidy overage Gary as we discussed, TRAC Center required more subsidies for the 2006 year than originally planned. The primary issues is the discovery of accounting errors in November/December which did not provide us any opportunity to try to make up costs in other areas as year was essentially over. Those errors showed us to have more revenues then we really had so we had spent more on expense end believing that we had the additional revenue to cover those expenses. Revenue issues: Early in the year our previous accountant booked revenues twice, which we found in late October early November, and that was a negative impact of$77,000 out of revenues. Roughly the same time the Auditors office removed$80,000 that was in the 2006 revenues but was 2005 monies and would normally have been moved in January. Thus the reason it did not get caught earlier is that the two "errors"were offsetting. The impact was a loss of$157,000 in revenues that were on our books. Expense issues: (some of the highlights) Energy cost exceeded budget by$80,500. Benefit's costs were over budget by$27,000. Commissions to Holiday Inn Express were over budget by$22,000 Summary: Actual 2006 Net Operating Loss: $616,270 Budgeted Operating Loss: $293,333 Variance or additional Loss: $322,933 Franklin County's Impact: $261,467 City Pasco Impact: $ 61,466 Clearly you can see the overage is considerable more than the $61,466 portion that the City is being billed. The Commissioners felt that the unexpected accounting oversights were not the City's responsibility and therefore chose to take a larger portion of the overage. AGENDA REPORT NO. 27 For: City Council March 22, 2007 To: Gary Crutchfi anager Workshop: 03/26/07 Regular: 04/02/07 From: Richard J. S th, Director'((`�`� Community nd Economic Development SUBJECT: Service Agreement with TRIDEC L REFERENCE(S): 1. Proposed Agreement II. ACTION REQUESTED OF COUNCIL/STAFF RECOMMENDATIONS: 03/26/07: Discussion 4/02/07: Motion: I move to approve the Industrial Recruitment Partnership Agreement with TRIDEC and, further, authorize the Mayor to sign the agreement. 111. FISCAL IMPACT: $30,000 Annually IV. HISTORY AND FACTS BRIEF: A) Pasco (along with Kennewick, Richland and West Richland) has contracted with TRIDEC since the early 1990s for the provision of certain economic development services. Those services have evolved over the years, as has involvement of the cities in the TRIDEC organization. In the early 1990s the cities had very little direct involvement in the TRIDEC organization, not having a seat on the Board of Directors or executive committee. For the past several years, each city has had a seat on the Board and the cities (as a group) are afforded one seat on the executive committee. Consequently, the cities are much more involved in determining the direction of TRIDEC and coordinating TRIDEC's efforts with those of the cities. B) The most recent partnership agreement was executed in 2002, expiring at the end of 2005. The proposed agreement is very similar to its predecessor, the most notable change being an increase in the City's contribution from $25,000 to $30,000 annually. The cities of Kennewick and Richland will also contribute $30,000 per year. The City of West Richland will pay $5,000 annually. Essentially, the agreement spells out the various objectives to be pursued and services to be provided by TRIDEC on behalf of the cities toward economic development goals. V. DISCUSSION: A) So long as the TRIDEC industrial recruitment objectives remain substantial and oriented toward results which will be beneficial to the city's economic development objectives, continuation of the TRIDEC partnership agreement remains a cost effective option for the city. To carry out a similar effort on our own would cost substantially more without necessarily producing more results. The ability of the City of Pasco to help shape those TRIDEC programs is added incentive to continue the partnership arrangement; thus, staff recommends Council approve the proposed agreement. 3(d) INDUSTRIAL RECRUITMENT PARTICIPANT AGREEMENT Benton Franklin businesses, local governments, chambers of commerce, and other economic development agencies are intent on working cooperatively with the Tri-City Development Council. "TRIDEC," to recruit new industry to the bi-county area. This agreement is between TRIDEC, the State's designated Associate Development Organization (ADO) for Benton and Franklin Counties, and the City of Pasco, a local entity, both designated herein as "Participants" in the bi-county industrial recruitment program. Similar agreements are being secured between TRIDEC and the counties of Benton and Franklin, the Cities of Kennewick, Richland, Pasco and West Richland, and the Ports of Benton, Pasco, and Kennewick. MUTUAL OBJECTIVES The Participants seek to expand business activity, increase capital investment, and broaden employment opportunities in the bi-county area. To accomplish this, TRIDEC will coordinate a program to expand existing industrial employment and recruit new industries to Benton Franklin Counties. While TRIDEC's primary mission is industrial job creation, the Participants are also committed to supporting creation of new businesses, commercialization of technology, expansion of tourism, retail development, and other means of economic development. However, these important efforts are led by community-based economic development organizations other than TRIDEC. The participants will establish roles and responsibilities for these functions with other agencies through separate agreements. The cities, counties and ports may have occasion to pursue individual or collective industrial recruitment effort beyond the confines of this agreement. To the extent these supplemental activities require a significant commitment of TRIDEC resources, they may as well be the subject of separate agreements. AGREEMENT The Participants will cooperate in the planning and implementation of activities to recruit new basic industry to the bi-county area. TRIDEC will coordinate this effort, making productive use of its own staff and volunteers, as well personnel resources supplied by others Participants. The TRIDEC President is responsible for administering this agreement. The Entity designates Rick Smith, Community and Economic Development Director, as its primary contact for the TRIDEC's industrial recruitment program. PROGRAM STRUCTURE The TRIDEC Board of Directors is ultimately responsible for setting business recruitment program policies. Cities, counties, and ports have full representation on the Board. The recommendations of the Board's Commerce 8v Industry Committee and TRIDEC staff help shape these policies. Elected and appointed officials from member local governments have opportunities for active involvement. The TRIDEC staff is responsible for administering the industrial recruitment program in cooperation the personnel from Participant agencies. TRIDEC functions as the Associate Development Organization for the Washington State Office of Trade and Economic (OTED). TRIDEC also engages businesses, educational institutions, the Department of Energy and its contractors, the Tri-Cities Visitor and Convention Bureau, and other bi-county economic development agencies to effectively support its industrial recruitment program. The TRIDEC President/CEO and participants port, city, and county managers will endeavor to maintain effective coordination among the Participants. The Case Management Group, consisting of the TRIDEC Vice President for Commerce 8v Industry and designated staff from each Participant agency, will work together on an on-going basis to market, recruit, qualify, and service prospects. TRIDEC, in cooperation with the Participants, will accomplish the following objectives: • Industrial Recruiting Staff-taff- Retain a qualified business recruiting staff to work with designated Participant agency personnel. • Marketing Plan- Maintain and follow a formal, written plan to market to, identify, recruit, qualify, and service industrial prospects. Focus on target opportunities, including but not limited to agribusiness, environmental industries, I-5 Corridor business, metals industries, and back-office/telecommunication business. • Client Tracking System- Administer a client tracking system to manage and record prospect contacts. Encourage use of the system by all Participants. • Site/Facility Inventory- Administer and update as needed a data base including the following information for industrial sites and facilities available for recruited industries: site and structures plans, location, site dimensions and acreage, soil conditions and slope, transportation access, availability of utilities, zoning, neighboring land uses, and contact person. • Training- Provide effective industrial marketing to Participants agency staff and community volunteers who come into contact with industrial prospects. • Measurement- Regularly monitor and report industrial recruiting progress using a mutually agreed measurement system that gauges program effectiveness. • Communications- Through its Internet WEB site and e-mail, printed reports, newsletters, media releases, and briefing sessions, keep all Participants and the general public adequately informed of industrial recruitment activities. • Annual Report- The year's industrial recruitment accomplishment and plans for the coming year will be reported at TRIDEC's annual meeting. HANDLING OF PROSPECTS Business and recruitment activities can begin with contacts originated through CTED and referred to TRIDEC, directly by TRIDEC, or by a local entity. Contacts through TRIDEC: The following describes the handling of prospect cases when contact originates at TRIDEC or is referred to TRIDEC by CTED. • TRIDEC will provide general information on the bi-county area and other data requested by the prospect. In response to the Prospect's expressed interests, TRIDEC will also supply names of property owners and Participant contacts. • If the prospect indicate an interest in specific business locations TRIDEC will notify affected Participants and property owners, share information gathered, make appropriate introductions, and assist in follow-up marketing as requested. • If the prospect indicates interest in specific sites, but requests confidentiality, TRIDEC will keep affected parties fully informed without revealing the identity of the prospect. This information will remain confidential until release by TRIDEC is authorized by the prospect. • When a prospect establishes formal discussions with a Participant and commits to a site in its jurisdiction, responsibility for managing the contact will be transferred from TRIDEC to that entity. TRIDEC will continue serving as the prospect's community advocate and provide assistance as requested. Contacts at the Local Entity Level: This describes the handling of prospects when the contact originates with the local entity, or the entity has assumed responsibilities for the case. • Local entities rely on TRIDEC to supply a variety of valuable industrial recruitment information an services. When a local entity receives a contact inquiry or is managing an industrial prospect and desires support from TRIDEC, it need only request such assistance. • It is not necessary for the entity to divulge the identity of a prospect to TRIDEC unless it elects to do so. If requested assistance requires disclosure of the prospect' identity, TRIDEC will render such assistance while maintaining confidentiality. • If the local entity determines that dealing with a prospect exceeds its abilities, the prospect will be referred to TRIDEC for further handling. • If more than one local entity requests assistance with the same prospect, TRIDEC will so advise affected entities. Under this circumstance, subsequent requests for assistance must be mutually agreed upon by affected local entities before it is rendered by TRIDEC. CLOSING DEALS The participants recognize shared responsibility in the complicated process of closing deals with industrial prospects. Care will be taken in each instance to properly define the division of authority and responsibilities. Offers on land costs, infrastructure extensions, utility charges, and other items will be made to prospects only by the authorized entity (i. e property owner, city, port, or utility) or with its explicit consent. Public events such as media conferences, groundbreaking, and ribbon cutting will be coordinated with the sitting jurisdiction. The city in which the prospect will locate or expand its facility will be responsible or working with TRIDEC on logistics relating to these events. FINANCIAL COMMITMENT The cities participating as Participants in industrial recruitment activities will collectively provide TRIDEC $ 95,000 annually to support the program in addition to transfer by the Counties of funds from CTED in designating TRIDEC as the Regional ADO. Shares are allocated as to equitably distribute the financial responsibilities for the program. The annual cost distribution is shown below: City of Kennewick $30,000 City of Richland $30,000 City of Pasco $30,000 City of West Richland $ 5,000 TERM OF AGREEMENT This agreement will be effective upon execution by both parties and remain in effect through December 31, 2010. It may be amended at any time by mutual agreement of Participants. The Agreement may be terminated at any time by mutual agreement or by either Participant for cause, failure to perform, or for other legitimate reasons. A ninety (90) day written notice to the Participant is required to effectuate a termination. Dated this day of April, 2007. CITY OF PASCO Joyce Olson, Mayor APPROVED AS TO FORM: Sandy Kenworthy, Deputy City Clerk Leland B Kerr, City Attorney TRI-CITY INDUSTRIAL DEVELOPMENT COUNCIL Carl Adrian, President/CEO