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HomeMy WebLinkAbout2016.08.08 Council Workshop PacketPage 3-29 30-44 45-53 Workshop Meeting 1. CALL TO ORDER: 2. ROLL CALL: AGENDA PASCO CITY COUNCIL 7:00 p.m. (a) Pledge of Allegiance 3. VERBAL REPORTS FROM COUNCILMEMBERS: 4. ITEMS FOR DISCUSSION: August 8, 2016 (a) Proposed Consent Decree, Response to ACLU Voting Rights Act (VRA) Complaint (b) Land Sale - Broadway Blvd Property (c) Final Acceptance: Wastewater Treatment Plant Caustic Soda Improvements Project 5. MISCELLANEOUS COUNCIL DISCUSSION: 6. EXECUTIVE SESSION: 7. ADJOURNMENT. REMINDERS: 11:45 a.m., Monday, August 8, (location) - Pasco Chamber of Commerce Membership Luncheon. (Benton Franklin Council of Governments presentation) 3:00 p.m., Tuesday, August 9, 5109 N. Road 68, Suite C - Sherwin Williams Ribbon Cutting Ceremony. (COUNCILMEMBER BOB HOFFMANN) 7:00 a.m., Thursday, August 11 - BFCG Tri -Mats Policy Advisory Committee Meeting. (COUNCILMEMBER BOB HOFFMANN, Rep.; REBECCA FRANCIK, Alt.) 7:00 p.m., Thursday, August 11 - Ben -Franklin Transit Board Meeting. (MAYOR MATT WATKINS) This meeting is broadcast live on PSC -TV Channel 191 on Charter Cable and Page 1 of 53 Workshop Meeting streamed at www.pasco-wa.gov/psctvlive. August 8, 2016 Audio equipment available for the hearing impaired; contact the Clerk for assistance. Page 2 of 53 AGENDA REPORT FOR: City Council August 5, 2016 TO: Dave Zabell, City Manager Workshop Meeting: 8/8/16 FROM: Stan Strebel, Deputy City Manager Executive SUBJECT: Proposed Consent Decree, Federal Voting Rights Act (VRA) Compliance I. REFERENCE(S): Proposed Consent Decree - United States District Court Eastern District of Washington Complaint for Injunctive and Declaratory Relief Resolution No. 3635 II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS: Discussion III. FISCAL IMPACT: IV. HISTORY AND FACTS BRIEF: As the result of rapid population growth and changes in community demographics, the City has expended significant effort recently in working to assure that all Pasco residents are fairly represented on the City Council. In the recent past the City Council has identified that its current election system, which provides that Council district seats are voted by district in the primary election but on a city-wide basis in the general election, could be diluting the Latino/a vote. State law however mandates that City Council district seats be voted on a city-wide basis in the general election. As the City is not authorized to adopt an election system inconsistent with state law, the City Council has not been able to change its election system to allow district -based voting in the general election. It has recently been alleged by the American Civil Liberties Union (ACLU) that the impact of Latino voters is diluted by the at -large aspect of the City's current election system and, thus, adversely impacts the election of Latino -favored candidates to the City Council. The ACLU's claim, as outlined in the attached complaint recently filed in Federal District court, is that the City is in violation of the Federal Voting Rights Act. Page 3 of 53 Aside from efforts within the confinements created by state law, the City Council has initiated multiple efforts in an attempt to change state law to allow for greater impact of the Latino/a vote. In May 2015, the City Council enacted Resolution No. 3635, attached, declaring its intent to pursue a change in state law to allow district based - voting, declaring its continuing intent to provide equal voting opportunities for all of its citizens, and to provide equitable and proportional representation. The City followed up its resolution by vigorously advocating to the state legislature for a change in state law that would allow for district based voting for City Council districts in the general election. While some traction was gained, the legislature has yet to amend state law. In a separate effort, the City sought an opinion from the Washington State Attorney General (AG) on the matter, which the AG rendered on January 28, 2016. While helpful, as written the AG's opinion references threshold determinations and requires coordination with, and approval from, other agencies that add considerable time and potential for disagreement in resolving this matter of great import to the community in a timely manner. It has been Council's direction that the matter of district -based voting be brought to them for consideration and resolution far enough in advance of the next Council election cycle so as to be beneficial to the community. City officials and representatives of the American Civil Liberties Union have been in discussions since early 2016 in an effort to map a way forward. With the adjournment of the legislature signaling the loss of a legislative solution this year, and the possibility that utilization of the AG's opinion may result in a protracted and unpredictable process leaving the City at risk of costly litigation, those discussions have necessarily focused on litigation in federal court as a vehicle to address concerns over the City's election system. In a situation such as this, where state law is precluding the City from taking action to meet the requirements of a federal law, the judgment of a federal judge can overrule the state law. A court, however, cannot enter a judgment unless it has jurisdiction over the matter, which is initiated by a legal proceeding, which in turn requires the filing of a complaint which has now occurred. The proposed draft consent decree is a means by which the City and ACLU propose to ask the United States District Court Eastern District of Washington assume jurisdiction in this matter and ultimately "Determine and impose the appropriate election system remedy." V. DISCUSSION: The City and ACLU have jointly crafted the above referenced proposed consent decree. Council discussion and approval of the document is requested before it is submitted to the Court. Page 4 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Leland B. Kerr, WSBA No. 6059 KERR LAW GROUP 7025 W. Grandridge Blvd., Suite A Kennewick, Washington 99336 Telephone: (509) 735-1542 Facsimile: (509) 735-0506 lkerr@kerrlawgroup.net Attorneys for Defendants, City of Pasco Emily Chiang, WSBA No. 50517 La Rond Baker, WSBA No. 43610 Breanne Schuster, WSBA No. 49993 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 Telephone: (206) 624-2184 Email: echiang@aclu-wa.org, lba �corg,bschuster@aclu-wa.org Attorneys for Plai X. A " EASTERN DISTRI CITY OF PASC ATT VXkTKINS, in his official capacity as Mayor of Pasco, and REBECCA F;RANCIK, BOB HOFFMANN, TOM LARSEN, SAUL MARTINEZ, and AL YENNEY, in their official capacity as members of the Pasco City Council, Defendants. CONSENT DECREE - 1 TRICT COURT F WASHINGTON CONSENT DECREE KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 Palae 5 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE A Complaint has been filed by the above Plaintiff alleging that the current at -large method of electing members of the Pasco City Council violates Section 2 of the Federal Voting Right Act by diluting the electoral power of Pasco's Latino voters and thereby depriving Latinos of an opportunity to fully participate in the political process and to elect candidates of their choice to tb.,e Pasco City Council. FACTUAL STIP ION — LIABILI The above-named Plaint' and Defendants state and agr follows: Background 1. Defen of Pa Washington, is municipal corporation organized under the laws of the Stat ashi�n as an optional -code cit g g p Y 10 subject to Chapte 35A of the Revised Code of Washington. Defendants Rebecca Francik Robert Hoffmann Tho as Lars Saul Martinez Matthew Watkins and > > Albert Y has statutory au Councilmembers are the Pasco City Council. The City Council voting districts subject to the State law. The Cityl sued in their official capacity only. 2. The Pasco City Council consists of seven (7) City Councilmembers serving staggered four-year terms. The next municipal election will be in November 2017, at which time four (4) seats on the Pasco City Council will be up for election. CONSENT DECREE - 2 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 Palqe 6 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Five (5) City Councilmembers are currently nominated in a non- partisan, top -two primary in five (5) territorial election districts. For territorial election districts, only a resident of that voting district may be a candidate for, or hold office as, a Councilmember of that district, and only voters of the district may vote at the primary election to nominate candidates for the City Councilmember for that district. Candidates for the two (2)a -large Council positions are determined at the primary election in a non-partisan, top -two primary by residents of the entire City of Pasco. 4. During the general election, voters o the entire City vote to elect a Councilmember for each of the respective territorial elec liion districts as well as p the two at -large Council positions (i.e., all Councilmmbers are elected on an at - large basis). 5. -,, The Cit wi the last gislative session, sought a change to the State la, law, the In the absence of a change in the State )15 municipal election cycle, sought to amend Pasco Municipal Code (PMC) 1.10.010 to provide for district -based l elections. The City requested that the Franklin County Auditor implement district - based voting. The Auditor responded to Pasco's request in a letter dated April 17, 1 2015, claiming that because implementing a district -based election system would CONSENT DECREE - 3 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 Pahe 7 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violate RCW 35A.12.180, the Auditor was unable to conduct an election under Pasco's proposed district -based election system. 6. On May 4, 2015, the Pasco City Council enacted Resolution No. 3635 declaring its intent to pursue a district -based election system for City Councilmembers, and further declaring its continuing intent to provide equal voting opportunities for all of its citizens, and to provide equitable and proportional representation. 7. On the behest ofe City of Pasco, WashinNStenator Pam Roach submitted a request to th ashington State Attorney General regarding the 46 - authority authority of cities subject to, RCW 35A.12.180 (which incjudes the City of Pasco) to change their own election systems. On January 28,2016, the Washington State 10 Attorney General rendered an Opinion which noted that: "Thus RCW 35A.12.180 s eciRallydenies to code cities the p authority to restrict voting bLyaward at the general election. Therefore, a local ordinance that provided for general elections by ward would conflict with RCW 35A.12.180 and be preempted by state law." (Attorney Geeral Opinion at pg. 5.) "In sum, Code cities in Washington t elieve they may be in violation of the VRA face difficult decisio and potential legal risk regardless of what course they choose." (Attorney General Opinion at pg. 10). Violation of Section 2 of the Federal Voting Rights Act 8. This action is for the enforcement of Section 2 of the Federal Voting Rights Act, which provides in part as follows: CONSENT DECREE - 4 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 Palae 8 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in Section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." The Federal Voting Rights Act is designed to "help effectuate the Fifteenth Amendment's guarantee that no citizen's right shall 'be denied or abridged ... on account of race, color, or vious condition of servitude." (Voinovich vs. Quilter, 507 U.S. 146, 1523) A violation of the ederal Voting Rights Act occurs when, based upon the totality of the circumstances, the challenged electoral process is "not equally open to participation by members of a 'racial minority group' and its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." CONSENT DECREE - 5 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 I 9 of 53 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City of Pasco is an optional municipal code city subject to RCW 35A.12.180, the pertinent portion of which reads as follow: "Wards shall be redrawn as provided in chapter 29.70 RCW (now 29A.76 RCW). Wards shall be used as follows: (1) Only a resident of the ward may be a candidate for, or hold office as, a councilmember of the ward; and (2) only voters cif the ward may vote at a primary to nominate candidates for a councilmember of the ward. Voters of the entire city may vote at the general election to elect a councilmember of a ward, unless the city had prior to January 1, 1994, limited the voting in the general election for any or all council positions to only voters residing within the ward associated with the council positions. If a city had so limited the voting in the general election to only voters residing within the ward, then the city shall be authorized to continue to do so." The result of the statutorily mandated at -lar election is non -Latino lokkk,. 1W dominance in electing City Council members. Pasco's large Latino population is sufficiently numerous and compact to fo majority in a single -member district; it is ally cohesive; and the non -Latino majority votes sufficiently as a block w to defeat a Latino Npred candidate. (Thornburg vs. Gingles, 478 U.S. 30 I" (1986)). In such a case, the State statute must "give way" to remedy a violation o Section 2 of the Federal Voting Rights Act. In United States vs. City of Euclid, 580 F.Supp.2d 584 (2008), the Court invalidated the at -large election system, likewise, based upon the State statute and incorporated by City ordinance. In CONSENT DECREE - 6 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 Paale 10 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States vs. OSCEOLA County (2005) an at -large election system was, as provided in statute, invalidated. Montes vs. City of Yakima, 40 F.Supp. 1377 (2014) states: "Defendants are correct that state law must sometimes yield to afford an effective remedy under the Voting Rights Act. The Supremacy Clause requires that state law be abrogated where doing so is necessary to remedy a violation of the Voting Rights Act. (Arizona vs. Inter Tribal Council of Ariz. Inc., 133 S.Ct. 2247, 2256 (2013). Federal legislation so far as it extends and conflicts with the regulations of the State, necessarily supersedes them. In remedial situations under Section 2 where state laws are necessarily abrogated, the Supremacy Clause appropriately works to suspend those laws because they are an unavoidable obstacle to the vindication of the federal right." The Federal Court is specifically authorize to act in just such a circumstance to resolve such a conflict. 9. Since the implementation of the current election system in 1971, the population of the City of Pasco has grown dramatically. During that period, there has been a substantial increase in the number of Latino residents. Today, Latino residents are estimated to be approximately half of the City's population. The Latino population in the City of Pasco is sufficiently numerous and geographically compact to constitute a majority of the voting age population in at least one election district. Id. ¶ 42. 10. Latinos in the City of Pasco are a politically unified group that votes cohesively as a bloc. In contests between Latino and non -Latino candidates for the CONSENT DECREE - 7 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 11 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City Council, statistical analysis show that Latino voters consistently vote for Latino candidates. Id. ¶ 21. 11. The majority of voters in Pasco are white and have historically engaged in bloc voting favoring non -Hispanic candidates. 0 12. As such, there is a pattern of racially polarized voting in the City of Pasco City Council elections. The voting patterns an*he presently mandated at - large general election of all City Council candidates make it difficult for the Latino community to elect candidates of their c ¶¶ 10, 22.Although other minority candidates have been the Cit uncil, as a result of racially - polarized bloc voti tino can ate has ever won an opposed election to the Pasco City Coun The Latina erve on i'he City Council was Luisa Torres. She was appointed to the Council in 1989. Ms. Torres subsequently ran for election in 1989 but was defeated by a Won -Latino candidate. The only other Latino to serve on the City'Counc as also first appointed to the City Council, Saul Martinez. subsequently ran unopposed, which enabled him to retain his seat. Id. ¶ 23. 13. In 2015, six Latinos ran for two positions on City Council. Despite strong support of Latino voters, the two Latinas who survived the primary election were both defeated in the November 2015 general election. Id. ¶ 24. CONSENT DECREE - 8 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 12 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While there is no evidence of any discriminatory motive or intent by the non -Latino population in exercising their own rights to vote, such intent is not relevant to a violation of Section 2 of the Voting Rights Act. 14. There is no evidence that non -Latinos outvote Latinos. 15. Under the Senate Facto deliberately conspiring to of the circumstances" analysis, there is sufficient evidence of disparities to show inequality in opportunities between the white and Latino popula ns and that existing at- ;`-Mw� large election system for the Pasco City Cou _ " has excluded Latinos from meaningfully partic' the political process and diluted their vote such that Latinos are unable to elect c idates of themhoio the City Council. Thus, the election system by which Pasco elects is City Councilmembers violates Section Vol 2 of the Voting Rights Act. State law, ho ever, prevents Pasco from adopting an adequate remedy to this Section 2 viAation. q Y 16. It is in the best interest of the residents of the City of Pasco to enter into this Consent Decree, thus avoiding protracted, costly, and potentially divisive litigation. Defendants have the authority to settle litigation in good faith for further expenditure of public funds and defense thereof is not likely to be in the interest of the public. CONSENT DECREE - 9 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 e13of53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW, THEREFORE, based upon the stipulated evidence presented in this case and as memorialized above, IT IS HEREBY, ORDERED, ADJUDGED AND DECREED that: 1. This Court has jurisdiction over these actions pursuant to 52 U.S.C. 10308 and 28 U.S.C. 1345. 2. Under the Supremacy Clause of Article VI of the Constitution of the Or United States this Court has the power to impose a remedy otherwise contrary to applicable State statutes. This Court also has the aulority to appy a settlement IML or issue a consent decree that abrogates or modifies state law if doing so is necessary to remed tion of tion Vo Rights Act. Perkins v. Chicago Heights, .3d 21 16 (7th 1995). 3. Wash. Rev. Code 35A.12.18 events Pasco from utilizing district based elutions mandates that Pasco elect its City Councilmembers in at -large elections. -Due to voting trendNiasco the use of an at -large election system dilutes the Latino population's voting power in violation of Section 2 of the Voting Rights Act. 4. In order to remedy the City of Pasco's Section 2 violation, the City l must adopt a new election system. Implementation of the new election system will necessarily abrogate Washington State law, but must do so only as much as necessary to remedy the Section 2 violation. Large vs. Fremont County, 670 F.3dI CONSENT DECREE - 10 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 !14of53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1133, 1145 (10th Cir. 2012) ("[I]n remedial situations under Section 2 where State laws are necessarily abrogated, the supremacy clause appropriately works to suspend those laws because they are an unavoidable obstacle to the vindication the Federal right.") (emphasis in original). A& 5. Defendants admit that due to voting trends Pasco's election system results in unlawful dilution of the Latino populTdion's vote in violation of Section 2 of the Voting Rights Act; a new election system must be imposed; Pasco does not have the authority to affirmatively change its electio system bec Wash. Rev. Code 35A.12.180 bars such al an election system that has the authority to impose 6. The Court rre'viethe PaX stipulation of facts as reflected in this Consent Decree, and finds that the stipulations are sufficient to support finding that the c t Pasco's City Council election system unlawfully dilutes the Latino population's vote in violation oNg Rights 2 of the Federal Votin Ri hts Act 52 U.S.C. § 10308. Wk 4F 7. Except as inconsistent with or specifically altered by the terms of this Consent Decree, all State laws shall continue to govern elections for the City l Council of the City of Pasco. 8. Defendants, and their officers, agents, and successors in office, and all persons acting in concert with them, are enjoined from administering, CONSENT DECREE - 11 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 Paale 15 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 implementing, or conducting future elections for the Pasco City Council under the current at -large election method or any other election method that violates Section 2 of the Voting Rights Act. 9. The Court reserves jurisdiction of this matter to determine and impose the appropriate election system to remedy the current violation of Section 2 of the Voting Rights Act. 10. It is further ordered, to provide for effective opportunities for full participation in the 2017 municipal election cycle, at the Parti all, in good Nw faith efforts, meet and confer no later than September 15, 2016 to determine whether the Parties can agree upon a remedNre0anc ompliance with Section 2 of the Voting Rights Act. e Parties caagreement, the Parties shall each submit their proposed remedial districting plans to the Court on or before October 15, 2016. The Parti all respond to the proposed remedial plans on or before November 15, 2016. Th arties shall present a reply regarding the proposed remedial plans by November 15, 2016. A hearing before this Court on the proposed remedial redistricting plans shall be set by the Court. 11. No attorney fees or costs are awarded for this liability phase of the case or work performed by Plaintiffs prior to the filing of the Complaint; however, the Court reserves the award of reasonable attorney fees and costs for the remedial phase of this case. CONSENT DECREE - 12 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 e16of53 1 2 3 4 5 6 7 8 9 10 11 IVA 13 f[! 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ENTERED THIS day of , 2016. United States District Judge Presented by: AlLeland B. Kerr Leland B. Kerr, WSBA No. 6059 KERR LAW GROUP 7025 W. Grandridge Blvd., Suite A Kennewick, Washington 9933 Telephone: (509) 735-1542 Facsimile: (509) 735-0506 lkerr@kerrlawgroup.net Attorneys for Defdants /s/Emily Chiang Emily Chiang, WSBA No. 50517 La Rand Baker, WSBA No. 43610 BreannNAe, r, WSBA No. 93 ACLU ngton Foundatio 901 FifSuite 6Seattle, 98164 Telephone: (206) 21 echiang@aclu-wa.or lbaker@aclu-wa.org bschuster@aclu-wa.org Attorneys for Plaintiff CONSENT DECREE - 13 KERR LAW GROUP 7025 WEST GRANDRIDGE BLVD., SUITEA KENNEWICK, WASHINGTON 99336 PHONE (509) 735-1542 e17of53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 Emily Chiang, WSBA No. 50517 La Rond Baker, WSBA No. 43610 Breanne Schuster, WSBA No. 49993 (E.D. Wash. Admission Pending) AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 Telephone: (206) 624-2184 Email: echiang@aclu-wa.org, lbaker@aclu-wa.org, bschuster@aclu-wa.org Brendan V. Monahan, WSBA No. 22315 STOKES LAWRENCE VELIKANJE MOORE & SHORE 120 N. Naches Ave. Yakima, Washington 98901 Telephone: (509) 853-3000 Email: bvm@stokeslaw.com Attorneys for Plaintiff Bertha Aranda Glatt UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Bertha Aranda Glatt, Plaintiff, LIFO CITY OF PASCO'MAT T WATKINS, in his official capacity as Mayor of Pasco, and REBECCA FRANCIK, BOB HOFFMANN, TOM LARSEN, SAUL MARTINEZ, and AL YENNEY, in their official capacity as members of the Pasco City Council, Defendants. ILI 11163 COMPLAINT I. INTRODUCTION 1. This Complaint is a challenge to the at -large election system utilized by the City of Pasco, Washington to elect members of its City Council. The COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Page I 1 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206)624-2184 awl ie 18 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 current at -large scheme impermissibly denies Latino/a voters an equal opportunity to participate in the political process and elect representatives of their choice, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. II. JURISDICTION 2. This is an action for injunctive and declaratory relief under Section 2 of I® the Voting Rights Act, 42 U.S.C. § 1973. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), and 1367. Plaintiff's action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202. Venue is proper under 28 U.S.C. § 1391. III. PARTIES 4. Plaintiff Bertha Aranda Glatt is a Latina, registered voter, and resident of the City of Pasco. 5. Plaintiff desires to participate in the electoral and political processes of the City of Pasco on an equal basis with all other residents, and to ensure that all Latino/a voters can also do so. 6. Defendant City of Pasco is a governmental entity that maintains an electoral system comprised of seven positions—five residency district positions and two at -large positions—for the Pasco City Council (the awl ie 19 of 53 AMERICAN s CIVIL COMPLAINT FOR INJUNCTIVE AND o DECLARATORY RELIEF FOUNDATION I°N Page Ave, Suite 30 901Seattle 12 WA 98164 (206)624-2184 awl ie 19 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 "City Council"). In the general election, all seven City Council seats are elected at -large. 7. Defendants Matt Watkins, the Mayor of the City of Pasco, Rebecca Francik, Bob Hoffmann, Tom Larsen, Saul Martinez, and Al Yenney are the current elected members of the City Council. The City Council has authority to set voting districts. The City Council members are each sued in their official capacity only. IV. FACTS A. The City of Pasco 8. Pasco is a non -charter code city. Under Wash. Rev. Code 35A.12.180, non -charter code cities may divide their city into wards but may not limit voting in general elections to voters residing in wards unless the system was set up prior to 1994. Pasco did not set up a districted voting system for primary elections prior to 1994. 9. According to data provided by the United States Census Bureau, the City of Pasco has a total population of 62,295 and a voting -age population of 40,451. 10. Latino/as comprise approximately 32% of the City of Pasco's voting -age population, and comprising approximately 54.13% of the city's population. awl ie 20 of 53 AMERICAN s CIVIL COMPLAINT FOR INJUNCTIVE AND o DECLARATORY RELIEF FOUNDATION Page 3 901 Fifth Ave, Suite 630 Ave, � Seattle, WA 98164 (206)624-2184 awl ie 20 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 B. The Pasco City Council 11. The City Council is comprised of seven (7) non-partisan seats. 12. City Council positions 1, 2, 3, 4, and 5 are residency districts. Positions 6 and 7 are at -large seats. 13. In the primary, only those who live in a residency district associated with positions 1-5 vote to determine who will proceed from the primary to the Im 1 15. general election. In the primary, positions 6 and 7 are elected at -large. In the general election all City Council positions are elected at -large. City Councilmembers serve staggered, four-year terms such that either three or four of the seven seats are up for election biannually. The last general election for positions 1, 5, and 6 was held on November 3, 2015. The last general election for positions 2, 3, 4 and 7 was held on November 5, 2013. 16. Despite the fact that there is a substantial Latino/a population, no Latino/a has won a contested election. C. Pasco's Latino/a Community 17. Latino/as in Pasco have expressed clear political preferences that are distinct from those of the majority of non-Latino/a voters. In elections where Latino/a candidates have run, a statistically significant percentage of Latino/a voters in Pasco vote for the same candidates. awl ie 21 of 53 AMERICAN s CIVIL COMPLAINT FOR INJUNCTIVE AND o DECLARATORY RELIEF FOUNDATION I°N Page Ave, Suite 30 901Seattle 14 WA 98164 (206)624-2184 awl ie 21 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 18. As a result of racially polarized bloc voting, no Latino/a candidate has ever won a contested election for a seat on the City Council. 19. These patterns have continued through the most recent elections in the Pasco City Council. In 2015, six Latinos ran for two positions on City Council. Despite vigorous efforts and strong support in the Latino/a community, the two Latinas who survived the primary election were both defeated in the general November 2015 election. 20. Latino/as in the City of Pasco are physically and geographically compact enough to compose the majority of at -least one single -member district, and it is possible to draw a single -member district plan for the Pasco City Council that contains three districts with Latino/a citizen voting -age population majorities. 21. The totality of the circumstances demonstrate that Latino/a voters in the City of Pasco have less opportunities than white members of the electorate to participate in the political process and elect representatives of their choice. 22. There has been discrimination against Latino/as in their efforts to 1 23 participate equally with other residents in the political process. There is significant evidence of racially polarized voting in Pasco City Council elections. Bloc voting patterns in the City have consistently CIVIL AMERICAN s COMPLAINT FOR INJUNCTIVE AND o DECLARATORY RELIEF FOUNDATION I°N Page Ave, Suite 30 901Seattle 15 WA 98164 (206)624-2184 awl ie 22 of 53 1 2 3 4 24. 5 6 25 7 8 9 10 11 12 26 13 14 15 16 27 17 18 19 I Case 4:16-cv-05108 Document 1 Filed 08/04/16 prevented Latino/a voters from electing their preferred candidates. This racially polarized voting results in the limited representation and indifference to the Latino/a community's interests on the City Council. The City of Pasco has used voting practices or procedures that enhance the opportunity for discrimination against Latino/a voters. Latino/as in the City of Pasco have been subjected to and continue to bear the effects of official and private discrimination on the basis of race and ethnicity in employment, education, health services, and housing. As a result of historical discrimination against Latino/as in employment, education, health services, and housing, many Latino/as in the City of Pasco have a lower socioeconomic status. According to the 2011-2013 American Community Survey ("ACS") 3 - Year Estimates, Latino/as in Pasco are less likely to own homes than white residents. Estimates indicate that 77.7% of white residents owned the home they occupied while only 51.8% of Latino/a residents did. According to the 2011-2013 ACS 3 -Year Estimates, while 14.2% of the City of Pasco's non -Hispanic white residents aged 18 to 64 lack health insurance, 43.8% of Latino/as aged 18 to 64 lack the same. According to the 2011-2013 ACS 3 -Year Estimates, the poverty rate for Latino/a residents of the City of Pasco is more than six times higher than COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Page 16 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206)624-2184 awl ie 23 of 53 1 2 3 4 5 6 29 7 8 9 10 11 12 30 13 14 31 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 the rate for non -Hispanic white residents (32.9% to 5.1 % respectively). Relatedly, the median household income for Latino/a residents in the city is approximately half that of non-Latino/a white residents. The median household income for Latino/a residents is $33,645, while the median income for non -Hispanic whites is $66,222. While a Latino/a has run for a City Council position nearly every election cycle since 1990, not one Latino/a candidate has won a contested City Council election. The sole Latino elected to the City Council, Saul Martinez, was first appointed to the Council, and subsequently ran unopposed. The only other Latino/a that has sat on the City Council, Luisa Torres, was appointed in 1989 but lost subsequent bids for City Council. These factors have allowed elected officials to remain unresponsive to the needs of the Latino/a community in Pasco. The City's at -large election system, racially polarized voting, and historical and ongoing discrimination have hindered Latino/as' ability to participate effectively in the political process and have diluted Latino/as' ability to elect representatives of their choice. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Page 17 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206)624-2184 awl ie 24 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 COUNT ONE VIOLATION OF SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 32. The allegations contained in Paragraphs 1 through 31 are hereby incorporated in Count One of the Complaint as if set forth herein. 33. The Latino/a community in the City of Pasco is sufficiently numerous and geographically compact such that one or more properly apportioned single -member electoral districts can be drawn in which Latino/as would constitute an effective majority of eligible voters. 34. Latino/as in the City of Pasco constitute a politically unified group that votes cohesively as a bloc. 35. Racially polarized voting persists in Pasco City Council elections. White voters consistently vote as a bloc to elect candidates favored by the white community and defeat the Latino/a community's candidates of choice. 36. Under the totality of the circumstances, the at -large method of electing members of the Pasco City Council denies Latino/a citizens an opportunity to participate in the political process and elect representatives of their choice equal to that afforded other members of the electorate, thereby diluting Latino/a voting strength. 37. This vote dilution violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Page 18 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206)624-2184 awl ie 25 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 38. Unless enjoined by order of this Court, the City of Pasco will continue to violate Section 2 by conducting elections for the Pasco City Council pursuant to the current at -large method in staggered elections. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that the Court enter an order: IM IN IN Im IM Declaring that the at -large method of electing Pasco City Council members violates Section 2 of the Voting Rights Act of 1965; Enjoining Defendants, their agents and successors in office, and all persons acting in concert with any of these individuals from administering, implementing, or conducting any future elections for the City of Pasco under the current method of electing City Council members; Ordering the implementation of an election system for the Pasco City Council that complies with Section 2 of the Voting Rights Act of 1965; Retaining jurisdiction of this action and granting Plaintiff any further relief which may in the discretion of this Court be necessary and proper to ensure that timely and lawful procedures are used in elections for the Pasco City Council; Granting Plaintiff the attorneys' fees and costs they incur, pursuant to 42 USC § 19731(e) and 42 U.S.C. § 1988; and COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Page 19 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206)624-2184 awl ie 26 of 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Case 4:16-cv-05108 Document 1 Filed 08/04/16 6. Granting any other relief that the Court may determine to be just and equitable. DATED this 4th day of August, 2016. Respectfully submitted, M /s/Emily Chiang Emily Chiang, WSBA No. 50517 echiang@aclu-wa.org /s/La Rond Baker La Rond Baker, WSBA No. 43610 lbaker@aclu-wa.org /s/Breanne Schuster Breanne Schuster, WSBA No. 49993* bschuster@aclu-wa.org AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 Telephone: (206) 624-2184 /s/Brendan V. Monahan Brendan V. Monahan, WSBA No. 22315 bvm@stokeslaw.com STOKES LAWRENCE VELIKANJE MOORE & SHORE 120 N. Naches Ave. Yakima, Washington 98901 Telephone: (509) 853-3000 Attorneys for Plaintiff Bertha Aranda Glatt * Application for admission to the Eastern District of Washington pending. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Page 110 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206)624-2184 awl ie 27 of 53 RESOLUTION NO. 3"�.5'_ A RESOLUTION of the City of Pasco, Washington, Declaring an intent to Adopt District -Based General Elections. WHEREAS, the City of Pasco has long pursued a policy to provide equal voting opportunity among its citizens, having adopted FMC 1.10.010 to provide districts that are nearly equal in population and configured as not to favor or disfavor any racial group or political party, and by PMC 1.10.040, to provide for the re-establishment of district boundaries to maintain this equality, preventing a difference in population that exceeds 10%; and WHEREAS, rapid population growth within of the City of Pasco and redistribution of population have necessitated frequent redistricting efforts on the part of the City; and WHEREAS, with this increased growth, the City's minority populations have likewise increased, particularly its Hispanic citizens; and WHEREAS, during the 2.01412015 redistricting cycle, the City conducted extensive research and investigation, with the assistance of demographic expertise to pursue and achieve not only equitable representation, but proportional representation within its five voting districts; and WHEREAS, the City Council has achieved that balance with the adoption of Ordinance No. 4209 which provides for equal and proportionate representation through the primary election of City Council candidates; and WHEREAS, the City Council's final step for achieving both equal and proportional representation was the amendment of PMC 1. 10.070 to provide for district -based general elections for City Council candidates; and WHEREAS, the City has, during the 2015 legislative session, supported the Washington Voting Rights Bill (Senate Bill 5658) which, by its terms, would authorize the City to change its electoral system by implementing a district -based election system to achieve proportional representation; and WHEREAS, that legislation failed to secure approval by the 2015 legislature; and WHEREAS, the City has sought assurances from the Franklin County Auditor that if the City adopted a district -based election system without passage of the Washington Voting Rights Bill, it would be able to adopt a district -based election system for the 2015 municipal election; and WHEREAS, the Franklin County Auditor has determined that such action would be in violation of RCW 35A.12.180 and, therefore, would not be able to accommodate district -based voting; and WHEREAS, the City Council believes that the provisions of RCW 35A.12.180 as applied to the circumstances of the City of Pasco results in potential vete dilution for some of its citizens. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO RESOLVE AS FOLLOWS: Section 1. Declaration of Intent. The City Council of the City of Pasco, Washington, declares its intent to pursue a district -based election system for City Councilmembers when such authority may be available at law. Section 2. Requested Legislation. The City Council of the City of Pasco, Washington, requests consideration by the Washington State legislature for amendment of RCW 35A.12.180 to provide cities the authority, and option, to adopt district -based election systems for the election of City Councilmembers at general municipal elections, or to consider and adopt a comprehensive voting rights bill that would permit local political subdivisions to change their electoral systems, including implementation of district -based election systems, during the 2016 legislative session. Section 3. Continuing Efforts. The City Council of the City of Pasco, Washington, declares its continuing intent to provide equal voting opportunities for all of its citizens and to provide equitable and proportionate representation of all of its citizens by the Pasco City Council. PASSED by the City Council of the City of Pasco, dated this day of 2015. Matt Watkins Mayor A , r)(7o i n e r ark, City lerk Washington, as its regular meeting APPR90 AS Tt7 FORM: Leland B. Kerr, City Attorney AGENDA REPORT FOR: City Council August 2, 2016 TO: Dave Zabell, City Manager Workshop Meeting: 8/8/16 FROM: Stan Strebel, Deputy City Manager Executive SUBJECT: Land Sale - Broadway Blvd Property I. REFERENCE(S): Proposed Resolution Purchase and Sale Agreement II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS: Discussion III. FISCAL IMPACT: $51,000 - $1.50 sq ft IV. HISTORY AND FACTS BRIEF: Some years ago, the City acquired 5.29 acres of property on Broadway Blvd, west of Highland Park. City plans for the property could include expansion of the park facility or parking, as well as the possible consideration of the property for re -location of the animal control facility. The City was recently approached by the owner of the property to the west who expressed a desire to purchase 100 feet in width (along Broadway Blvd) by 340 feet in depth (see attachment to Purchase and Sale Agreement) for the purpose of expanding the adjacent equipment dealership. Staff feels that the roughly .78 acre can be sold without limiting the City's ability to use/develop the property in the future. V. DISCUSSION: The City purchased the property for $160,000 in 2013 ($.70 per sq ft). The sale price Page 30 of 53 of $1.50 per foot is reasonable for the area. Staff recommends approval of the resolution authorizing the sale. Page 31 of 53 RESOLUTION NO. A RESOLUTION of the City of Pasco, Washington, approving the sale of certain real property on Broadway Boulevard. WHEREAS, the City owns approximately 5 acres of real property on Broadway Boulevard, east of Oregon Avenue; and WHEREAS, an adjacent property owner has petitioned the City to sell a portion of that property for the purpose of expanding the adjacent business; and WHEREAS, a prior appraisal, and analysis of the market, indicate that a value of $1.54 per square foot appears to be reasonable for the sale of .78 acres of the property and which the City Council accepts as an appropriate price for the property; and WHEREAS, the proposed use of the property advances the economic development goals of the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DOES RESOLVE AS FOLLOWS: Section 1. That the City sale of certain real property consisting of .78 acres to Bobby Gilbert, for the purpose of expanding his business according to the terms as described in the Purchase and Sale Agreement attached hereto as Exhibit A. Section 2. That the City Manager is hereby authorized to execute all documents necessary to effect the sale of the property in accordance with the Purchase and Sale Agreement. PASSED by the City Council of the City of Pasco at a regular meeting this 15th day of August, 2016. Matt Watkins, Mayor ATTEST: Debra Clark, City Clerk Leland B. Kerr, City Attorney Page 32 of 53 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (hereinafter "Agreement") is entered into on this _ day of , 2016, between the City of Pasco, a Washington Municipal Corporation (hereinafter "City") and Bobby G. Gilbert (hereinafter "Purchaser") for establishing the terms and conditions for the sale of real property (hereinafter "Property") legally described as set forth below: A portion of Parcel 1D Number 112102019 consisting of approximately 34,000 square feet (.78 acre -340 feet north -south and 100 feet east -west, frontage on Broadway Blvd.) as shown in Exhibit A which is attached hereto and incorporated by reference. RECJTALS WHEREAS, City is the owner of real property located in Franklin County, Washington, which real property is described more particularly above; and WHEREAS, City wishes to sell such real property and Purchaser wishes to purchase such property under certain terms and conditions as set forth below; NOW, THEREFORE, The parties covenant and agree as follows: Purchase and Sale. City agrees to sell, and Purchaser agrees to purchase: (a) That certain parcel of real property described above; (b) All development rights relating to the real property; (i) all rights to obtain utility service in connection with the real property; (ii) assignable licenses and other governmental permits and permissions relating to the real property and the operation thereof. (c) The land, improvements, and appurtenances which constitute real property are hereafter collectively defined as the "Real Property." All of the Property included by reference within the foregoing paragraphs 1(a) through 1(c), both real and personal, is hereinafter collectively referred to as the "Property." (d) Conditions of sale, Purchaser agrees to use the real property for the expansion of the existing equipment dealership, located to the west of the Property. 2. Purchase Price/Financing. The purchase price for the Property is Fifty One Thousand Dollars (551,000) which is calculated at $1.50 per square foot. The City represents that the Property totals approximately .78 acres or 34,000 square feet. The purchase price is payable in cash to the City. Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 1 Page 33 of 53 3. Method of Payment. Within ten (10) business days following the last party's execution of this Agreement and delivery of a fully executed original thereof to the other party, Purchaser will deposit with an escrow agent (Benton -Franklin Title Company), Five Thousand and 00/100ths Dollars ($5,000.00), which shall constitute a deposit and be held in an interest bearing trust account. This deposit shall be applied to the purchase price. (a) Purchaser agrees that the deposit/earnest money shall be paid to City if the sale does not close after Purchaser has removed all contingencies in writing. (b) Upon closing, Purchaser shall electronically transfer proceeds of Purchaser's financing for the balance of the purchase price or issue a cashier's check in the amount of the purchase price. 4. Survey. (a) The Purchaser shall, at Purchaser's expense, within twenty (20) days following the execution and delivery of the Purchase and Sale Agreement to the Title Company, provide a current survey acceptable to both City and Title Company. The purchase price is based on the condition that the area of the parcel comprising this Property sale is 34,000 square feet. (b) The Purchaser shall, at Purchaser's expense, within thirty (30) days following the execution and delivery of the Purchase and Sale Agreement to the Title Company, prepare a boundary line adjustment document, for approval and execution by the City, thereby, conveying the above-described real property to the Purchaser contingent upon closing - 5. Inspection Period: (a) Between the effective date of this Agreement and closing, or the earlier termination of this Agreement, Purchaser and their authorized agents, contractors, and consultants, shall have the right to go upon the Property at reasonable times for the purpose of inspecting each and every part thereof to determine its present condition and, at Purchaser's sole cost and expense, to prepare such reports, tests, and studies as Purchaser deems appropriate, including but not limited to surveys, soil tests, engineering studies and environmental tests. Before conducting any invasive or intrusive testing such as borings or test holes, Purchaser shall give City at least forty-eight (48) hours prior written notice, and shall coordinate the date and time of such testing to enable City's representatives and/or consultants to be present to take duplicate samples and record the methods used by the Purchaser's consultants. The Purchaser's inspection period shall not exceed thirty (30) days from the effective date of the Agreement unless otherwise agreed to by both parties in writing. Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 2 Page 34 of 53 (b) Purchaser agrees to repair any damage to the Property resulting from any activities of Purchaser or his agents or consultants on the Property before closing. Purchaser agrees to defend, indemnify and hold the City hannless from any and all damages, expenses, claims, or liabilities (including but not limited to attorney's fees and costs) arising out of any activities of Purchaser or his agents or consultants on or about the Property before closing, except to the extent that the same results from the City's negligence. Purchaser shall not be liable for any inspection claim resulting from Purchaser's discovery of any pre-existing condition (including, but not limited to, the existence of any hazardous materials) in, on, under or about the Property or any exacerbation of a pre-existing condition in, on, under or about the Property, except to the extent that the exacerbation results from the negligent act or omission of Purchaser or his agents or consultants. 6. Title. Title to the Property is to be so insurable at closing under terms of the title policy required to be delivered by City under terms of paragraph 7 hereof. All title insurance charges for the policy referenced in paragraph 7 below in the amount of the purchase price shall be equally divided between the parties, except for the cost of any special endorsements requested by Purchaser and cancellation fees shall be paid by Purchaser. 7. Preliminary Commitment. Within fifteen (15) days from the last party's execution of this agreement, City shall furnish Purchaser with a preliminary report/commitment from Benton -Franklin Title for an ALTA owner's policy of title insurance with respect to the Real Property, together with a copy of each document forming the basis for each exception referenced therein. Purchaser shall advise City of any title objections within five (5) days of its receipt of the report/commitment to remove all exceptions or conditions in the title commitment. If within ten (10) days after its notice to City, Purchaser have not received evidence satisfactory to it that such unsatisfactory items can and will be removed at or prior to closing at City's sole cost and expense, then Purchaser may elect to (a) terminate this Agreement and receive a full refund of the deposit, (b) waive such defects, or (c) continue this Agreement in effect pending their removal. Removal of unsatisfactory items or their waiver shall be a condition of closing. If Purchaser does not mare an election within thirty (30) days of its execution of this Agreement, Purchaser shall be deemed to have waived the defects. S. Due Diligence; Inspection Period. (a) Within fifteen (15) days following the last party's execution of this Agreement, City shall provide Purchaser with the title commitment described in paragraph 7 above, together with all relevant documents relating to the Property, including but not limited to copies of all easements, lot segregation and all other covenants and restrictions with respect to all or portions of the Property; and all existing surveys and other reports and studies relating to the Property or its use or development in the possession of City. Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 3 Page 35 of 53 (b) Purchaser shall have thirty (30) days from the date the last party executes this Agreement (the "Inspection Period") within which to conduct an examination of the Property, including examinations of title, engineering tests, soils tests, water percolation tests, ground water tests, environmental examinations, market studies, appraisals, and any other tests or inspections which Purchaser shall have deemed necessary or desirable for the purpose of determining whether the Property is suitable for his intended uses. On or before the expiration of the Inspection Period, the Purchaser shall notify City in writing, with a copy to Escrow Agent, whether Purchaser intends to purchase the Property or terminate this Agreement. If Purchaser elects to purchase the Property, then the Inspection Period shall terminate and Purchaser's obligation to purchase and City's obligation to sell the Property shall remain, subject to the other terms and conditions of this Agreement. If Purchaser elects not to purchase the Property, then this Agreement shall be void and of no further force and effect, and the deposit shall be returned to Purchaser. In the event Purchaser fails to notify City in writing of its election to purchase the Property or terminate this Agreement prior to the expiration of the Inspection Period, then Purchaser shall be deemed to have elected to terminate this Agreement. 9. Pro -rations. Real Property taxes, assessments, water and other utilities, and all other expenses for the month of closing, shall be prorated as of closing. All expenses, fees and sums owing or incurred for the Property for periods prior to closing shall be paid by City, when and as due. 10. Possession. Purchaser shall be entitled to sole possession of the Property at closing, subject only to the rights, if any, of tenants in possession under the leases. 11. Closing. Closing shall occur within ten (10) days of the conclusion of Purchaser's inspection period as provided in Section 8 above. (a) At closing City will deposit in escrow a duly executed statutory warranty deed covering the Property; a FIRPTA affidavit; and all other documents and monies required of it to close this transaction in accordance with the terms hereof. All such documents shall be in form satisfactory to Purchaser's counsel. (b) At closing Purchaser will deposit in escrow the monies required of it to close the transaction in accordance with the terms hereof. 12. Closing Costs. All excise, transfer, sales and other taxes, if any, incurred in connection with the sale, the title insurance premium, recording fees on the deed and the escrow fee shall be equally divided between the parties. The City shall bear all costs associated with the lot segregation. Each party shall bear its own attorneys' fees, except as otherwise expressly provided herein. Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 4 Page 36 of 53 13. Liquidated Damages. As an inducement to develop surplus City property in a manner that brings economic development to the City, the parties agree to the following liquidated damages in the event that Purchaser fails, without legal excuse after the inspection period, to complete the purchase of the Property or fulfill the terms and obligations set forth in paragraph 3. The Purchaser acknowledges that the purchase price and consideration given by City are related to the City's goal of economic development and lost opportunities for development that would arise if Purchaser fails to begin construction of the anticipated development. Purchaser expressly acknowledges that this clause is not a penalty but a reasonable forecast of economic loss if development does not occur at this location. The earnest money/deposit shall be forfeited to the City as the sole and exclusive remedy available to the City for such failure to purchase. In the event City defaults hereunder, Purchaser may pursue all remedies at law or equity, including the right to specific performance, an action for damages, or termination and return of its earnest money. 14. Reversionary Clause and Option to Repurchase/Reclaim. (a) This Property is being sold to Purchaser in anticipation of the expansion of the existing equipment dealership on the west of the Property onto the Property. (b) If the Purchaser fails to submit an application to City for approval of building plans consistent with subsection (a) above, within six (6) months of Closing, the City reserves the right to reclaim title to this Property. If the Purchaser does not initiate construction within twelve (12) months of Closing, City reserves the right to reclaim title to this Property. The City shall reclaim this Property by refunding 90% of the original Purchase Price in the sum of Forty -Five Thousand, Five Hundred Dollars ($45,9{)0) without interest. The City will not assume any liability for expenses incurred by Purchaser in conducting this transaction. Purchaser agrees to re -convey title to the City within sixty (60) days of receipt of notification of City's decision to seek reconveyance of Property. This reversionary right is exclusive to the City and shall be exercised at the sole discretion of the City. (c) This reversionary right survives forty-eight (48) months after closing or until such time as building commences, whichever is earlier. The City shall be under no obligation to exercise this reversionary right. This reversionary clause shall survive the delivery of the Deed, but shall automatically lapse upon expiration of the time periods herein and City shall execute such further documents as Purchaser shall request to release same. 15. Counte parts. This Agreement may be signed in counterparts which, taken together, shall constitute the complete Agreement. 16, Actions During Term. During the terra hereof, City shall not enter into any lease or other agreement affecting the Property or its operation, or modify, extend or otherwise change the terms of any lease or other agreement affecting the Property or its operation or otherwise permit any change in the status of title to the Property without Purchaser's prior written consent. Purchase and Sale agreement, City of Pasco & Hobby G. Gilbert - Page 5 Page 37 of 53 17. Assignment. Purchaser may not assign Purchaser's interest in this Agreement without City's prior written consent. 18. City's Warranties; Indemnity. City makes the following representations and warranties, which shall be deemed remade as of the closing date: (a) The Property and improvements are not in violation of any applicable covenant, condition or restriction or any applicable statute, ordinance, regulation, order, permit, rule or law, including, without limitation, any building, private restriction, zoning or environmental restriction. (b) Other than the obligations of record, there are no obligations in connection with the Property, which will be binding upon Purchaser after closing other than liability for the payment of real estate taxes and utility charges. (c) There are no claims, actions, suits or governmental investigations or proceedings existing or, to the best of City's knowledge, threatened against or involving City or the Property (including, without limitation, any condemnation or eminent domain proceeding or matter related to the formation of or assessment by a local improvement district) and City has received no written notice thereof. (d) All insurance policies now maintained on the Property will be kept in effect, up to and including the closing. City has received no notice from any insurance company or rating organization of any defects in the condition of the Property or of the existence of conditions which would prevent the continuation of existing coverage or would increase the present rate of premium. (e) There are no leases affecting the Property. (f) All such representations and warranties shall be reaffirmed by City as true and correct as of the Closing Date and shall survive the Closing for a period of two (2) years. If, prior to closing, City becomes aware of any fact or circumstance which would change a representation or warranty, then City will immediately give notice of such changed fact or circumstance to Purchaser, but such notice shall not relieve the City of its obligations hereunder. 19. Environmental Indemnification. (a) City will defend, indemnify, and hold Purchaser and his partners, agents and employees and assignee (collectively, the "Indemnified Parties'') harmless from and against any and all claims, obligations, damages, causes of action, costs and expenses, losses, fines, penalties, and liabilities, including, without limitation, attorneys' fees and costs, imposed upon or incurred by or asserted against an Indemnified Party arising out of or in connection with the occurrence of any of the following: (i) prior to closing: (A) any Environmental Matter affecting or relating to the Property arising out of City's use and ownership of the Property, or Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 6 Page 38 of 53 (B) any violation of any Environmental Law by City with respect to the Property; and (ii) subsequent to closing: (C) the manufacture, storage, sale, use, disposal, release, or discharge of Hazardous Substance in, on or under the Property by City; or (D) any violation of any Environmental Law by City with respect to the Property. City shall also be responsible for all costs, expenses, fines, and penalties arising out of or in connection with the investigation, removal, remediation, clean- up, and restoration work resulting from the matters described in the preceding sentence. City's obligations under this Section 22 shall survive closing. (b) "Environmental Laws" shall mean any federal, state or local laws, ordinance, permits or regulations, or any common law, regarding health, safety, radioactive materials or the environment, including but not limited to, the following federal statutes: Clean Air Act (42 U.S. C. §§ 7401 et seq.) ("CAA"), Clean Water Act (33 U.S.C. §§ 1251 et secs.) ("CWA"), Resource Conservation and Recovery Act (42 U.S.C. §§ 6091 et seq.) ("RCRA"), Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.) ("CERCLA"), Emergency Planning and Community Right -To -Know Act (41 U.S.C. §§ 11001 et M.) ("EPCRA"), Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.) ("SDWA"), Hazardous Material Transportation Act of 1975 (49 U.S.C. §§ 1801 et seq.) ("HMTA"), Toxic Substances Control Act (15 U.S.C. §§ 2601 et sect.) ("TSCA"), Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et se .) ("ESA"), Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §§ 136 et seq.) ("FIFRA"), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seg.) ("OSHA"), the Washington Model Toxics Control Act (RCW Chapter 70.150D) ("MTCA"), or the Hazardous Waste Management Act (RCW Chapter 70.105) ("HWMA"), each as amended, and any regulations promulgated thereunder, guidance and directives issued with respect thereto, or policies adopted by the applicable authorities thereunder. (c) "Hazardous Substances" shall mean: (i) any radioactive materials; (ii) any substance or material the transportation, storage, treatment, handling, use, removal or release of which is subject to any Environmental Law; or (iii) any substance or material for which standards of conduct are imposed under any Environmental Law. Without limiting the generality of the foregoing, "Hazardous Substances" shall include: asbestos and asbestos -containing materials (whether or not friable); urea -formaldehyde in any of its forms; polychlorinated biphenyls; oil, used oil; petroleum products and their by-products; lead-based paint; radon; and any substances defined as "hazardous waste," "hazardous substances," "pollutants or contaminants;" "toxic substances," "hazardous chemicals," "hazardous pollutants," or "toxic chemicals "under the CAA, CWA, RCRA, CERCLA, EPCRA, SDWA, HMTA, TSCA, OSHA, MTCA or HWMA. (d) "Environmental Matter" shall mean any of the following: (i) the release of any Hazardous Substance on or at the Property or any other property; (ii) the migration of any Hazardous Substance onto or from the Property; (iii) the environmental, health or safety aspects of transportation, storage, treatment, handling, use or release, whether any of the foregoing occurs on or off the Property, of Hazardous Substances in connection with the operations or past Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 7 Page 39 of 53 operations of the Property; (iv) the violation, or alleged violation with respect to the Property, of any Environmental Law, order, permit or license of or from any governmental authority, agency or court relating to environmental, health or safety matters; (v) the presence of any underground storage tanks within the confines of the Property; (vi) the presence of wetlands within the confines of the Property; (vii) the presence of any endangered species on, in or around the Property; or (viii) soil, groundwater and surface conditions on, in or around the Property which may have an adverse affect upon the use or value of the Property. 20. Costs and Expenses. Except as otherwise expressly provided herein, each party hereto will bear its own costs and expenses in connection with the negotiation, preparation and execution of this Agreement, and other documentation related hereto, and in the performance of its duties hereunder, 21. Notices. All notices provided for herein may be delivered in person, sent by commercial overnight courier, telecopied or mailed by U.S. registered or certified mail, return receipt requested, and, if mailed, shall be considered delivered three (3) business days after deposit in such mail. The addresses to be used in connection with such correspondence and notices are the following, or such other address as a party shall from time -to -time direct: City: City of Pasco 525 North 3rd Pasco, WA 99301 Attn: Dave Zabell, City Manager (509) 545-3404 Purchaser: Bobby G. Gilbert 5528 W. Yellowstone Ave. Kennewick, WA 99336-1305 (509) 947-2892 22. Miscellaneous. (a) Further Documentation. Each of the parties agrees to execute, acknowledge, and deliver upon request by the other party any document which the requesting party reasonably deems necessary or desirable to evidence or effectuate the rights herein conferred or to implement or consummate the purposes and intents hereof, so long as such imposes no different or greater burden upon such party than is otherwise imposed hereunder. (b) Headings. The headings in this Agreement are for convenience only and do not in any way limit or affect the terms and provisions hereof. Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 8 Page 40 of 53 (c) Calculation of Time Periods. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal holiday. The final day of any such period shall be deemed to end at 5 p.m., Pacific Time. (d) Time of Essence. Time is of the essence of this Agreement. (e) Gender. Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain genders shall be deemed to include either or both of the other genders. (f) Exhibits. The Exhibits referred to herein and attached to this Agreement are incorporated herein as if set forth in full. (g) Unenforceabilit . If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remainder of such provision or any other provisions hereof (h) Amendment„ Modifications. This Agreement may not be altered, amended, changed, waived, terminated or modified in any respect or particular unless the same shall be in writing and signed by or on behalf of the party to be charged therewith. 23. Attorneys' Fees. If any lawsuit or arbitration arises in connection with this Agreement, the substantially prevailing party therein shall be entitled to receive from the losing party, the substantially prevailing party's costs and expenses, including reasonable attorneys' fees incurred in connection therewith, in preparation therefore and on appeal therefrom, which amounts shall be included in any judgment entered therein. 24. Waiver. A party may, at any time or times, at its election, waive any of the conditions to its obligations hereunder, but any such waiver shall be effective only if contained in writing signed by such party. No waiver shall reduce the rights and remedies of such party by reason of any breach of any other party. No waiver by any party of any breach hereunder shall be deemed a waiver of any other or subsequent breach. 25. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. 26. Facsimile Si irg atures. Each party (a) has agreed to permit the use, from time -to -time and where appropriate, of telecopied signatures in order to expedite the transaction contemplated by this Agreement, (b) intends to be bound by its respective telecopied signature, (c) is aware that the other will rely on the telecopied signature, and (d) acknowledges such reliance and waives any defenses to the enforcement of the documents effecting the transaction contemplated by this Agreement based on the fact that a signature was sent by telecopy. Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 9 Page 41 of 53 27. REMEDIES. IF PURCHASER FAILS, AFTER THE REMOVAL OF ITS CONTINGENCIES, AND WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY, THE DEPOSIT SHALL BE FORFEITED TO CITY AS LIQUIDATED DAMAGES AND THE SOLE AND EXCLUSIVE REMEDY TO CITY FOR SUCH FAILURE. IN THE EVENT OF CITY'S DEFAULT, PURCHASER MAY PURSUE ANY REMEDY AVAILABLE AT LAW OR IN EQUITY, INCLUDING SPECIFIC PERFORMANCE. City's Initials Purchaser's Initials 28. Entire Agreement. This Agreement and the exhibits hereto constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, express or implied, and all negotiations or discussions of the parties, whether oral or written, and there are no warranties, representations or agreements among the parties in connection with the subject matter hereof except as set forth herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates noted below. PURCHASER Z 7-1 U Bobby G. Gil rt Date CITY Dave Zabell, City Manager Date Attest: Approved as to form: Debbie, City Clerk Leland Kerr, City Attorney Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 10 Page 42 of 53 STATE OF WASHINGTON) ) ss. County of Franklin On this day personally appeared before me Dave Zabell, City Manager of the City of Pasco, Washington, to me 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 deed for the uses and purposes therein mentioned. SUBSCRIBED and sworn to before me this day of , 2016. Notary Public in and for the State of Washington, Residing at My Commission Expires: STATE OF WASHINGTON ) ) ss. County of 5re"'LC ) On this day personally appeared before me Bobby G. Gilbert, to me known to be the individ4al described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary deed for the uses and purposes therein mentioned. SUBSCRIBED and sworn to before me this �L-_I_ day of 2016. Notary Public Notary Public in and for the State of Washington, S tate of Washl Residing at SNDNiXF+I My Commission Expires: led-iz nua 5, 2020 Purchase and Sale Agreement, City of Pasco & Bobby G. Gilbert - Page 11 Page 43 of 53 Page 44 of 53 AGENDA REPORT FOR: City Council July 18, 2016 TO: Dave Zabell, City Manager Workshop Meeting: 8/8/16 Ahmad Qayoumi, Public Works Director FROM: Dan Ford, City Engineer Public Works SUBJECT: Final Acceptance: Wastewater Treatment Plant Caustic Soda Improvements Project I. REFERENCE(S): Vicinity Map Proposed Resolution Construction Photographs II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS: Discussion III. FISCAL IMPACT: Utility Fund (Sewer) - $218,083.55 IV. HISTORY AND FACTS BRIEF: In an effort to improve efficiency and reduce costs at the wastewater treatment plant, Council previously authorized through the Sewer Master Plan, Capital Improvement Plan and annual budget the addition of a caustic soda treatment process. The project consists of the installation of a double -walled caustic soda storage tank, a concrete spill containment basin, a metering pump and associated valve board, together with associated chemical feed piping to the existing junction box. Project location is shown on the attached vicinity map. V. DISCUSSION: On July 20, 2015, Council awarded the Wastewater Treatment Plant Caustic Soda Page 45 of 53 Improvements project to Industrial Constructors, Inc., the lowest responsive bidder for the amount of $178,321.20. The final project construction contract totaled $218,083.55, an overage of $39,762.35, approximately 18%. The overage was due to unanticipated conditions requiring changes to the piping and tank configuration to integrate the various components of the project. Though there were challenges faced in the successful completion of this project, the City was able to work with the various contractors, suppliers and consultants to achieve a final pumping capacity which meets and/or exceeds the desired result. The work is now complete and meets project specifications. Staff recommends City Council's acceptance of this work. Page 46 of 53 I 2 TAMES S O � O v1 � W i P� O JECT L E W) s L OCA TION WWTP 'A" ST ti coz U �1BlA �l V� WWTP - CAUSTIC SODA IMPROVEMENTS VICINITY MAP WDWG; WWTP -CAUSTIC SODA IMPRDVEMEN75 WE �DT/25/2015 SCALE: NONE 5 NO SCALE 3 RESOLUTION NO. A RESOLUTION ACCEPTING WORK PERFORMED BY INDUSTRIAL CONSTRUCTORS, UNDER CONTRACT FOR THE WWTP CAUSTIC SODA IMPROVEMENTS PROJECT. WHEREAS, the work performed by Industrial Constructors, under contract for the WWTP Caustic Soda Improvements project has been examined by Engineering and has been found to be in apparent compliance with the applicable project specifications and drawings, and WHEREAS, it is Engineering's recommendation that the City of Pasco formally accept the contractor's work and the project as complete; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO, that the City Council concurs with Engineering's recommendation and thereby accepts the work performed by Industrial Constructors, under contract for the WWTP Caustic Soda Improvements project, as being completed in apparent conformance with the project specifications and drawings, and Be It Further Resolved, that the City Clerk is hereby directed to notify the Washington State Department of Revenue of this acceptance, and Be It Further Resolved, that the final payment of retainage being withheld pursuant to applicable laws, regulations and administrative determination shall be released upon satisfaction of same and verification thereof by the Public Works Director and Finance Manager. PASSED by the City Council of the City of Pasco this day of August, 2016. Matt Watkins Mayor ATTEST: APPROVED AS TO FORM: Debra L. Clark City Clerk Leland B. Kerr City Attorney Page 48 of 53 yyy/// yY t Page 49 of 53 VAW i"w 4 ! f r � r_• i well Page 51 of 53 -L I IkC A.W I IkC - P a ,