HomeMy WebLinkAboutFinance September 28 19991
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
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
WHATCOM COUNTY COUNCIL
Finance and Administrative Services Committee
September 28, 1999
The meeting was called to order at 12:00 p.m. by Committee Chair L. Ward
Nelson in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Tom Brown
Robert Imhof
Absent:
None
DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO AN
INTERLOCAL AGREEMENT BETWEEN WHATCOM COUNTY AND THE
LUMMI INDIAN BUSINESS COUNCIL FOR THE LUMMI SHORE
ROAD / LUMMI VIEW DRIVE RESTORATION PROJECT PHASE IV, WITH
THE COUNTY'S SHARE IN THE PROJECTED AMOUNT OF $600,000
(AB99 -355)
Imhof stated this was postponed from the previous meeting.
Bruce Mills, Public Works Assistant Director of Administration, stated this was
phase four of an ongoing agreement that began in 1992. This will cover the first
construction phase of the road, about 2.7 miles along the east side of Lummi Shore
Road. The next phase will go around the point of Lummi View Drive.
Brown stated there was something about the county participating in buying
tribal land, and then an agreement later on to maintain the road with the Lummi
Nation. Mills stated, to do the widening, they need to buy land from tribal, trusts,
and fee lands along the road.
Brown asked if the tribal lands the County purchases would become fee
lands. Mills stated all the County will get from the tribal trust land is the easement.
The land is still considered owned by the federal government. The county is
purchasing an easement only. The Lummi Nation will continue to own the land.
The Lummi Nation is doing their own negotiations with their own tribal members on
the tribal lands. They are obtaining easements and they will then be turning the
easements over to the County.
Councilmember Marlene Dawson asked if the County would have complete
control of the easement. Mills stated the Tribe is using matching federal funds.
The federal government will purchase 80% of the tribal land easement, the Tribe
will purchase 10 %, and county will purchase 10% of the tribal land easements.
The easements and right -of -ways the county is purchasing will be 100% of county
dollars.
Finance and Administrative Services Committee, 9/28/99, Page 1
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
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Brown asked about the maintenance agreement. Mills stated that is on
packet page 27, and says the County and the Lummi Indian Business Council shall
begin discussions of a maintenance responsibility transfer following substantial
completion of the project. He talked with the tribe and asked what that meant.
The Tribe said they would be interested in assisting with some of the maintenance
responsibilities. It does not commit the County to do anything.
Nelson stated the road is still owned by the County and the County is still
responsible for maintaining it. Mills stated that was correct.
Councilmember Connie Hoag asked what FHWA meant. Mills stated it is an
acronym for Federal Highway Administration.
Hoag asked about page 25 of the packet, County Responsibilities (B), and
asked if they could insert a phrase, "fee- simple property right -of -way" for
clarification that the County is just going to be purchasing the fee simple right -of-
way. The language as it currently is sounds like the County is going to purchase all
the fee simple property on the reservation.
Brown asked if there is a possibility the County would have to purchase
property for mitigation. Mills stated not at this point.
Dawson stated that, by equally sharing in the costs, the tribe automatically
would gain some control of the property. Her concern was that the County would
not have any place to negotiate because the Tribe will already have control and
some ownership if the county does not pay the total cost.
Brown stated they are only contributing 10% of the cost.
Dawson asked if staff could guarantee that the Tribe would not have any
jurisdiction over the road.
Karen Frakes, Senior Civil Deputy Prosecutor, stated Dan Gibson approved
this item and he could be contacted to alleviate the concerns.
Imhof stated this is the same agreement they've been working on for years.
Dawson stated they've been told that it was not relevant to the previous
stages of the project. Now it is relevant to this stage of this project.
Nelson asked who was the administrative project lead for the Tribe. Mills
stated the Tribe's project administrator was Andy Kamkoff.
Dawson stated the T.E.R.O. (Tribal Employment Rights Ordinance) ordinance,
is referenced in the contract. One reference has to do with contract preferential
treatment. If more than one Indian tribe expresses an interest in the contract and
is qualified to perform it, the entity shall restrict competition to those Indian firms.
Finance and Administrative Services Committee, 9/28/99, Page 2
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
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
State law is clear on that. In addition, there has been a court case that addresses
taxing issues. There shouldn't be anything in the contract that says the county
shall enforce the T.E.R.O. Ordinance. Mills stated page 27 of the agreement talks
about T.E.R.O. It says, "...except in those cases where application of this ordinance
is in direct conflict with State laws pertaining to bidding and expenditure of public
funds by the county." Therefore, the County must still go with the low bidder.
Dawson stated that section should not be in there because it violates state
law and would intimidate people who are not aware of the state law.
Brenner asked if it does violate state law. Mills stated he didn't think so. He
distributed language that is in all contracts (on file). It is meant to have the
contractor contact the tribe and satisfy themselves of the tribal requirements.
Typically, this involves hiring available tribal members to perform different tasks of
the projects, such as flagging or supplying materials.
Imhof stated they subcontract with the main contract. The main contract as
a whole is not subject to T.E.R.O. Mills stated the main contract is subject to
T. E. R. 0.
Imhof asked if a Native American company gets preferential treatment on a
bid. Mills stated they don't. The low bid gets the contract, but the person hired
works with the tribe on seeing if they have available people that they can hire.
Imhof stated that was the subcontract, not the contract.
Brenner asked if T.E.R.O. was state or federal law. Mills stated it is tribal
(
Nelson stated the Council had questions regarding the transfer of property,
county rights -of -way, and maintenance responsibility.
Dawson stated another question was whether the Tribe would have leverage
in acquiring jurisdiction over they road if they pay for any portion of the easements.
Dan Gibson, Senior Civil Deputy Prosecutor, stated, regarding the transfer of
responsibility of maintenance outlined on packet page 27, section VI, it is a
question of whether it will be a County- maintained road or whether there will be a
transfer of responsibility to the Tribe in the future.
Nelson asked why they would have this discussion. Gibson stated the County
took on the roads for maintenance on the reservation in the 1920's. There is
someone who is motivated to rethink that. This language says that discussion will
begin on that whole issue, once the project is substantially complete.
Brown asked if the participation of 10% in acquiring an easement gives the
Lummi Nation the leverage to take over control of Lummi Shore Road. Gibson
stated an ownership interest in the easement could be used as a bargaining chip.
Finance and Administrative Services Committee, 9/28/99, Page 3
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
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
Dawson stated her concern was whether, as a 10% owner, they could use
that as a legal argument to collect taxes from Puget Sound Energy and business
people. The Tribe has never been in a position to be able to provide services to
non - Indians that will substantiate the illegal taxes they have been collecting. She
didn't want to let them get a foot in the door.
Brenner stated they might have some jurisdiction, unless the County wants
to do all the maintenance.
Hoag asked if the Tribe would still have jurisdiction anyway, because the
trust lands remain trust. Gibson stated the right -of -way would be an easement.
There is an underlying ownership. It doesn't change anything, practically speaking,
from the standpoint of jurisdictional arguments.
Imhof stated the road is already there and the right -of way already exists.
They are just making it wider.
Hoag asked who historically purchased the right -of -way. Gibson stated at
that time it was County- acquired right -of -way. He was hard - pressed to think of a
way to alter the balance of power.
Imhof moved to recommend to the full Council. He requested the
councilmembers have their questions asked before the meeting.
Brenner asked if, on page 25, section (G), "responsible" should be
"responsive." Mills stated that it should be "responsible."
Brown stated it refers to the one who can perform the work.
Linnea Smith, 2808 Leeward Way, stated there was some discussion about
the T.E.R.O. ordinance. It was her understanding this is a local Lummi tribal
ordinance, passed by the Lummi Indian Business Council (LIBC), which means this
ordinance will be part of the County contract. If they just do a blanket acceptance
of the T.E.R.O. ordinance, then most of the discussion is centered on contractors
and the questions of jurisdiction and maintenance. Also, they did not discuss how
to enforce contracts based on local tribal law. Another part of the contract talks
about part of the T.E.R.O. ordinance, which states that a tax of 1% of the cost of
the project will be going to the Lummi Tribe. The County should not be entering
into a project where county and state laws are subservient to a tribal ordinance. It
is fine to say the subcontractors are out for open bid. However, the T.E.R.O.
ordinance makes it clear that subcontractors are to be given tribal preference. She
questioned whether that is what the County really wants.
Brenner stated the County is not allowed to give preferential treatment and
questioned whether what they are doing is contrary to state law.
Finance and Administrative Services Committee, 9/28/99, Page 4
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
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Nelson read from the contract, "...except in those cases where application of
this ordinance is in direct conflict with state law as pertaining to bidding and
expenditure of public funds by the County."
Mike Bezona, 2233 Lummi Shore Road, stated a previous discussion on this
topic several years ago resulted in a message that taking over maintenance of the
road would not be discussed. A lot of money has being spent on the shore of the
bank. Future maintenance will be low cost. With the shifting tribal governing board,
the maintenance of that road may be in doubt. He asked if the County could
guarantee maintenance. If they could not, then he asked to be able to make sure
they include in their negotiations that the property in front of their house, which is
fee patent land, could be purchased, since it is not fee tribal land. He would want
the County to continue to maintain that road, or be able to maintain the road
himself.
Brenner stated she believed the County work on shoring up the road would
not guarantee there wouldn't be major problems in the future. Bezona stated
having 320 different members of a piece of property less than five acres would
make it extremely difficult to get a right -of -way through the area. They are
starting to see the effects of that. A tribal member stated that is what happens.
There is no guarantee there will be additional right -of -way for that road. When
they started the project, it was conveyed the County will maintain the road one way
or another.
Brown stated this contract does not give them maintenance of the road. If
that is something that is going to happen, then there will be another meeting on it.
This does not give them an advantage.
Bezona asked if this was a discussion point that will be made in public.
Nelson acknowledged that this could be open for discussion.
Motion carried unanimously.
COUNCIL "CONSENT AGENDA" ITEM
1. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO APPROVE
CHANGE ORDER NO. 2, BETWEEN WHATCOM COUNTY AND ELITE
ELECTRICAL, FOR ELECTRICAL INSTALLATION OF THE NEW
EMERGENCY GENERATOR AND A TRANSFER SWITCH WITH AN 800
AMP DISCONNECT, IN THE AMOUNT OF $10,490.03 FOR A TOTAL
CONTRACT AMOUNT OF $41,153.09 (AB99 -368)
Imhof moved to recommend to the full Council.
Nelson stated the correct amount is $10,490.46.
Finance and Administrative Services Committee, 9/28/99, Page 5
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
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
Hoag asked for a copy of the original bid.
Nelson stated this was amended once before.
Motion carried unanimously.
2. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO AN
AMENDMENT BETWEEN WHATCOM COUNTY AND NORTHWEST
SURVEYING AND GPS (NWS) TO PROVIDE PROFESSIONAL
SURVEYING SERVICES OF THE EXISTING LEVEES AND HIGH GROUND
ALONG THE NOOKSACK RIVER FROM THE GUIDE MERIDIAN BRIDGE
DOWNSTREAM TO BELLINGHAM BAY, IN THE AMOUNT OF $90,490
FOR A TOTAL CONTRACT AMOUNT OF $141,670 (AB99 -369)
Brown stated he thought they approved this during the previous Council
meeting.
Paula Cooper, Public Works Engineering, stated she should have put the
whole package together at once, but was new to her job and was still trying to
figure things out. They've done everything down to the Guide Meridian.
Nelson stated this goes all the way down to the estuary.
Cooper stated that last week there was something else before the Council.
Nelson moved to recommend to the full Council.
Motion carried unanimously.
ADJOURN
The meeting adjourned at 12:36 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
L. Ward Nelson, Committee Chair
Finance and Administrative Services Committee, 9/28/99, Page 6