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Home My WebLink AboutPacket Jul 12 2011WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2011-214 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: RL 6110112011 L� u E E � � v n E © 6/2I/20II CouncilraResources Natural Resoucre, Division Head: J U N 14 2011 7/12/2011 Council Dept. Head: W H ATC O M COUNTY Prosecutor: COUNCIL Purchasin Bud et: \3�, Executive: TITLE OF DOCUMENT: Lily Point Marine Park Development Plan ATTACHMENTS: 1. Development Plan for Lily Point Marine Park and supporting documentation (to be delivered to Council Office 611612011) SEPA review required? ( X ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes ( X ) NC SEPA review completed? ( X ) Yes ( ) NO Requester! Date: SUMMAR Y STA TEMEN T OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Request Council approval of Lily Point Marine Park Development Plan. This project is funded by grants awarded to Whatcom County from the Washington State Recreation and Conservation Office (RCO Contract No. #08-1682C, Whatcom County Contract No. 200909001). COMMITTEE ACTION: COUNCIL ACTION: 6/21/2011: Held in Committee for two weeks Related County Contract #: Related File Numbers: Ordinance or Resolution Number: 200909001 Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.uslcourtcil. WHATCOM COUNTY CONTRACT INFORMATION SHEET Whatcom County Contract No. Originating Department: Parks & Recreation Department Contract Administrator: Rod Lamb Contractor's /Agency Name: N/A Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes _ No X Yes _ No X If yes, previous number(s): Is this a grant agreement? Yes _ No X If yes, grantor agency contract number(s) _ CFDA number Is this contract grant funded? Yes No X If yes, associated Whatcom County grant contract number(s) Is this contract the result of a RFP or Bid process? Yes No X If yes, RFP and Bid number(s) Contract Amount: (sum of orig contract amt If a Professional Services Agreement is more than $ IS, 000 or a Bid is more than and any prior amendments) $35, 000, please submit an Agenda Bill for Council approval and a supporting $ memo. Any amendment that provides either a 10% increase in amount or more than This Amendment Amount: $10,000, whichever is greater, must also go to Council and will need an agenda bill $ and supporting memo. If less than these thresholds, just submit to Executive with Total Amended Amount: supporting memo for approval. $ Scope of Services Request Council approval of Lily Point Marine Park Development Plan. This project is funded by grants awarded to Whatcom County from the Washington State Recreation and Conservation Office (RCO Contract No. #08-1682C, Whatcom County Contract No. 200909001) Term of Contract: Expiration Date: Contract Routing Steps & Signoff.- [siQn or initial] [indicate date transmitted] I. Prepared by: R. Lamb Date 61912011_ [electronic] 2. Attorney reviewed: Date [electronic] 3. AS Finance reviewed: Date electronic] 4. IT reviewed if IT related Date [electronic] S. Corrections made: Date (electronic] hard copy printed 6. Attorney signoff Date 7. Contractor signed.- Date 8. Submitted to Exec Office Date %summary via electronic; hardcopies] 9. Reviewed by DCA Date 10. Council approved (f necessary) Date 11. Executive signed: Date 12. Contractor Original 13. Returned to dept; Date 14. County Original to Council Date this form may need to expand to more than one page this form may need to expand to more than one page 2 Whatcom County Contract No. WHATCOM COUNTY CONTRACT ATTORNEY REVIEW (submit via electronic transmittal] Originating Department: Parks & Recreation Department Contact Person: Rod Lamb Contractor's Name: N/A First Review: OApproved As Is; Prepare Hardcopy for Signoff O Needs Revision; Attorney Comments for suggested changes: Second Review: Olmplemented Attorney Corrections as Indicated OApproved,- Prepare Hardcopy for Signoff OAdditional Corrections Needed,• Attorney Comments for suggested changes: Please indicate any Special Dates or clauses that require calendaring: Leave this page attached to summary coversheet until final signoff by attorney. 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I 21 22 23 24 P:1PIoJects1100M11.CAD13ase\70020_SP2.dwg, 01. 2/282011 10:37:17 AM 25 �f��': � °»� k� + _ \ �) .. &: w� « �� ° � § �\r . �� .. ..! . �� </.2\�� » 9\ •,,3 ® 2� ®�«� �� \ ��;ƒ��/��} :�"ems»\©,�. \ 2. ^�®� \.� �$ . �� e /. ��®t . � %� � \ � � ; w«d «z»a«. .#, «� � � �\� � � t » »� g ax ev: � � , ��. •, :��f�}2\<:! �� / `® :: }� �> z \\� �� 2� � : \\ / 2 � «, �� \ \� � � \� \� � \./� 6 \z�� \ �%� � A w ,\��£�.• ©2` � \� � /22g . /� �� »5�� !: «�< WHATCOM COUNTY PARKS & RECREATION DEPT. 3373 Mount Baker Highway, Bellingham, WA 98226 MEMORANDUM Michael McFarlane Director TO: Pete Kremen, County Executive and Whatcom County Council Members FROM: Michael McFarlane, Director f RE: i Lily Point Development Plan Approval DATE: 6/10/2011 ■ Background and Purpose In October of 2009 the Recreation and Conservation Office awarded Whatcom County grant funding for acquisition and development of Lily Point. Over the past two years the Parks & Recreation Department has worked to complete the acquisition and planning for park improvements. Parks is now to requesting approval of the development plan to implement the improvements. ■ Funding Amount and Source Development of the Park is being funded through Aquatic Lands Enhancement Act and Washington Wildlife and Recreation grants from Washington State Recreation & Conservation Office (Contract # 200909001 approved by the Council on September 29, 2009 and amended on 2/04/2010). Please contact Michael McFarlane at extension 32072, if you have any questions or concerns. Encl. We WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2011 — 239 CLEARANCES Initial Date Date Received in Council Office A enda Date Assign d to: Originator: 7/6/2011 7/12/2011 Natural Resources Division Head: Dept, Head. - Prosecutor: Purchasin /Bud et: Executive: TITLE OF DOCUMENT. Update from Farm Friends on natural resource marketing ATTACHMENTS: SEPA review required? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) COMMITTEE ACTION.• COUNCIL ACTION: Related County Contract #: Related File Numbers. Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the Count 's website at. www.co.wliatcom.wa.uslcouncil. 29 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 201 1 - 1 29 CLEARANCES Initial Date Date Received in Council O ace Agenda Date Assigned to: Originator: Middleton 3/22/2011 3/29/2011 Natural Resources Division Head: Dept. Head: Prosecutor: Purchasin /Bud et: Executive: TITLE OF DOCUMENT. General discussion of permitting process for Gateway Pacific Terminal project ATTACHMENTS: SEPA review required? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) COMMITTEE ACTION: COUNCIL ACTION: Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/counci1. 30 WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2011-017 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: DGD 6/28/11 -7f12/11 Finance Originator: Division Head. JUL. 0 5 2011 Dept Head: WHATCOM COUNTY COUNCIL Prosecutor: Purchasing/Budget: ,J r Executive: TITLE OFDOCUME T. Discuss Parks Capital Projects ATTACHMENTS: n/a SEPA review required? ( ) Yes ( x ) NO Should Clerk schedule a hearing ? ( ) Yes ( x ) NO SEPA review completed? ( ) Yes ( x ) Requested Date. NO SUMMARYSTATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Review with County Council the Parks Capital Project information for 2011 and 2012. COMMITTEE ACTION. • COUNCIL ACTION. Related County Contract #: Related File Numbers. Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. ww►v.co.►ihatcom.wa.us/council. 31 AB2011-225 WHATCOM COUNTY COUNCIL AGENDA BILL NO. CLEARANCES Initial Date Date Received in Council 0 ffice Agenda Date Assigned to: Originator. gmg 6/1/2011 u U IJ E fl V ® (j JUL, " 5 2011 7/12/2011 CounciWinance Division Head: Q,5111 Dept. Head: Wt1ATCOM COUNTY rjw 61612011 Prosecutor: COUNCIL 617111 Purchasing/Budget: l ` Executive: TITLE OF DOCUMENT: Contract between Whatcom County Health Department and Edge Analytical, Inc. ATTACHMENTS: 1. Contract Information Sheet 2. Memorandum to Executive's Office 3. Two (2) originals of Contract Agreement SEPA review required? ( ) Yes ( x ) Should Clerk schedule a hearing ? ( x ) Yes ( ) NO NO Requested Date: 6/21/2011 SEPA review completed? ( ) Yes ( ) NO SUMMARYSTATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) The purpose of this contract is to provide laboratory testing services for the analysis of samples generated in the Environmental Health programs. COMMITTEE ACTION: COUNCIL ACTION.• Related County Contract #. Related File Numbers. Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wauslcouncil. 32 WHATCOM COUNTY Health Department 509 Girard Street Bellingham, WA 98225 MEMORANDUM TO: Pete Kremen, County Executive 40 FROM: Regina A. Delahunt, Director RE: Edge Analytical Contract DATE: June 13, 2011 Regina A. Delahunt Director rIECEED IV COUNTY EXECUTIVE Enclosed are two (2) originals of a new contract between Whatcom County Health Department and Edge Analytical, Inc. for your review and signature. ■ Background and Purpose The agreement provides for laboratory testing services as may be required by the Whatcom County Health Department for the analysis of samples generated in environmental health programs including site hazard assessment, water, wastewater, solid waste, and biosolids management. ■ Funding Amount and Source The services will be used by the Environmental Health Division. Costs for primary services are allowable expenses through the Remedial Action Grant with the Department of Ecology. Council approval is required and an Agenda Bill is attached. ■ Differences from Previous Contract This is a new contract issued pursuant to RFP # 11-42. Please contact Jeff Hegedus at extension 50895 if you have any questions or concerns regarding this agreement. Thank you. Encl. 33 Whatcom County t ✓U (j Contract No. Cost Center object Code a O / / O (e 0 / 3 137" WHATCOM COUNTY CONTRACT INFORMATION SHEET Approved by Originating Department: Whatcom County Health De artment Contract Administrator: Jeff Heg,,edus Contractor's /Agen Name: Edge Analytical, Inc. Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes X No Yes _ No Ifyes, previous number(s): Is this a grant agreement? Yes _ No X Ifyes, grantor agency contract number(s) CFDA number Is this contract grant funded? Yes X No Ifyes, associated Whatcom County grant contract number 200909008 Is this contract the result of a RFP or Bid process? Yes X No Ifyes, RFP and Bid number(s) RFP# 1142 Contract Amount: (sum of orig contract amt and any prior amendments) If a Professional Services Agreement is more than $15, 000 or a Bid is more than $35, 000, please submit an Agenda Bill for Council approval and a supporting $ 25 000.00 memo. Any amendment that provides either a 10% increase in amount or more than This Amendment Amount: $10, 000, whichever is greater, must also go to Council and will need an agenda bill $ and supporting memo. If less than these thresholds, just submit to Executive with Total Amended Amount: supporting memo for approval. $ Scope of Services The agreement provides for the provision of laboratory testing services as may be required by the Whatcom County Health Department for analysis of samples generated in environmental health programs such as site hazard assessment, water, wastewater, solid waste, and biosolids management. Term of Contract: 7/13/2011- 06/30/2012 Expiration Date: 6/30/2012 Contract Routing Steps & Siknoffff Isign or initiall findicate date transmitted 1. Prepared by gmmg Date 6/1/2011 [electronic] 2. Attorney reviewed: rjw Date 61612011 _ [electronic] 3. AS Finance reviewed. mdc Date 617111 [electronic] JJJWff 4. IT reviewed if IT related Date __ [electronic] 5. Corrections made: Date [electronic] hard copy printed 6. Attorney signoff: - Date jl, - 7. Contractor signed: Date 8. Submitted to Exec Office ,s Date f6f I [summary via electronic, hardcopies] 9. Reviewed by DCA Date 10. Council approved (if necessary) Date 11. Executive signed. Date 12. Contractor Original 13. Returned to dept,• Date 14. County Original to Council Date this form may need to expand to more than one page 34 CoUmTY ORIGINAL Whatcom County Contract No. .20110(' 0r3 CONTRACT FOR SERVICES AGREEMENT EDGE ANALYTICAL LABORATORY TESTING Edge Analytical, Inc., hereinafter called Contractor, and Whatcom County, hereinafter referred to as County, agree and contract as set forth in this Agreement, including: General Conditions, p. 3 to 8, Exhibit A (Scope of Work), p.9, Exhibit B (Compensation), p.10, Exhibit C (Certificate of Insurance), p.11, Exhibit D (Rate Sheet), p.12. Copies of these items are attached hereto and incorporated herein by this reference as if fully set forth herein. The term of this Agreement shall commence on the 13th day of July 2011, and shall, unless terminated or renewed as elsewhere provided in the Agreement, terminate on the 30th day of June 2012. The general purpose or objective of this Agreement is to provide laboratory testing services as more fully and definitively described in Exhibit A hereto. The language of Exhibit A controls in case of any conflict between it and that provided here. The maximum consideration for the initial term of this agreement or for any renewal term shall not exceed $25,000.00. The Contract Number, set forth above, shall be included on all billings or correspondence in connection therewith. Contractor acknowledges and by signing this contract agrees that the Indemnification provisions set forth in Paragraphs 11.1, 21.1, 30.1, 31.2, 32.1, 34.2, and 34.3, if included, are totally and fully part of this contract and have been mutually negotiated by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement this A day of ZjLW V_ 20 it . CONTRACTOR: BC*Snalytical, Inc. STATE OF WASHINGTON ) � COUNTY OF •4 )SS. On this 1%day of Grp, 201L, before me personally appeared f4 4- r : t k to me known to be th S� (title) of (Company) and who executed the above instrument and who acknowledged to me the act of signing and sealing thereof. Q Y! -V).yy ,',C /,y i , Q�• AN Ty0 ,•• P R Y =2•?� 2013•Z ' : O t i tp pu9V ••_� %F /0 Ftt10 � PS\\\p� 11L_071311 Edge Analytical - ` J NOTARY PUBLIC in and fo the tate of Washington, residi My commission expires c::7*— )3 Page 1 35 WHATCOM COUNTY: commended fo Approval: r / Re in Delahunt, Department Director ate Approved as to form: andall Wafts, Chief D ty Civil Prosecutor Date Approved: Accepted for Whatcom County: By: Pete Kremen, Whatcom County Executive STATE OF WASHINGTON ) ) ss COUNTY OF WHATCOM ) John Wolpers, Environmental Health Manager Date On this day of , 20 _, before me personally appeared Pete Kremen, to me (mown to be the Executive of Whatcom County, who executed the above instrument and who acknowledged to me the act of signing and sealing thereof. NOTARY PUBLIC in and for the State of Washington, residing at . My commission expires CONTRACTOR INFORMATION: Edge Analytical, Inc. Address: 111524 Knudsen Road Burlington, WA 98223 Mailing Address: Same as above Contact Name: Allen French, Director of Business Development Contact Phone: (360)757-1400 pr 1-800-755-9295 Contact FAX: (360)757-1402 Contact Email: afrench@edgeanalytical.com HL_071311 Edge Analytical Page 2 36 GENERAL CONDITIONS Series 30-39: Provisions Related to Administration of Agreement 0.1 Scope of Services: The Contractor agrees to provide to the County services and any materials as set forth in the project narrative identified as Exhibit "A", during the agreement period. No material, labor, or facilities will be furnished by the County, unless otherwise provided for in the Agreement. Series 10-19: Provisions Related to Term and Termination 10.1 Term: Services provided by Contractor prior to or after the term of this contract shall be performed at the expense of Contractor and are not compensable under this contract unless both parties hereto agree to such provision in writing. The term of this Agreement may be extended by mutual agreement of the parties; provided, however, that the Agreement is in writing and signed by both parties. 10.2 Extension: The duration of this Agreement may be extended by mutual written consent of the parties, for a period of up to one year, and for a total of no longer than three years. 11.1 Termination for Default: If the Contractor defaults by failing to perform any of the obligations of the contractor becomes insolvent or is declared bankrupt or commits any act of bankruptcy or insolvency or makes an assignment for the benefit of creditors, the County may, by depositing written notice to the Contractor in the U.S. mail, first class postage prepaid, terminate the contract, and at the County's option, obtain performance of the work elsewhere. Termination shall be effective upon Contractor's receipt of the written notice, or within three (3) days of the mailing of the notice, whichever occurs first. If the contract is terminated for default, the Contractor shall not be entitled to receive any further payments under the contract until all work called for has been fully performed. Any extra cost or damage to the County resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any extra expenses incurred by the County in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the County by reason of such default. 11.2 Termination for Reduction in Funding: In the event that funding from State, Federal or other sources is withdrawn, reduced, or limited in any way after the effective date of this Agreement, and prior to its normal completion, the County may summarily terminate this Agreement as to the funds withdrawn, reduced, or limited, notwithstanding any other termination provisions of this Agreement. If the level of funding withdrawn, reduced or limited is so great that the County deems that the continuation of the programs covered by this Agreement is no longer in the best interest of the County, the County may summarily terminate this Agreement in whole, notwithstanding any other termination provisions of this Agreement. Termination under this section shall be effective upon receipt of written notice as specified herein, or within three days of the mailing of the notice, whichever occurs first. 11.3 Termination for Public Convenience: The County may terminate the Agreement in whole or in part whenever the County determines, in its sole discretion, that such termination is in the interests of the County. Whenever the Agreement is terminated in accordance with this paragraph, the Contractor shall be entitled to payment for actual work performed at unit contract prices for completed items of work. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work Termination of this Agreement by the County at any time during the term, whether for default or convenience, shall not constitute breach of contract by the County. Series 20-29: Provisions Related to Consideration and Payments 20.1 Accounting and Payment for Contractor Services: Payment to the Contractor for services rendered under this Agreement shall be as set forth in Exhibit "B." Where Exhibit "B" requires payments by the County, payment shall be based upon written claims supported, unless otherwise provided in Exhibit "B," by documentation of units of work actually performed and amounts earned, including, where appropriate, the actual number HL_071311 Edge Analytical Page 3 37 of days worked each month, total number of hours for the month, and the total dollar payment requested, so as to comply with municipal auditing requirements. Unless specifically stated in Exhibit "B" or approved in writing in advance by the official executing this Agreement for the County or his designee (hereinafter referred to as the "Administrative Officer') the County will not reimburse the Contractor for any costs or expenses incurred by the Contractor in the performance of this contract. Where required, the County shall, upon receipt of appropriate documentation, compensate the Contractor, no more often than monthly, . in accordance with the County's customary procedures, pursuant to the fee schedule set forth in Exhibit "B" 21.1 Taxes: The Contractor understands and acknowledges that the County will not withhold Federal or State income taxes. Where required by State or Federal law, the Contractor authorizes the County to withhold for any taxes other than income taxes (i.e., Medicare). All compensation received by the Contractor will be reported to the Internal Revenue Service at the end of the calendar year in accordance with the applicable IRS regulations. It is the responsibility of the Contractor to make the necessary estimated tax payments throughout the year, if any, and the Contractor is solely liable for any tax obligation arising from the Contractor's performance of this Agreement. The Contractor hereby agrees to indemnify the County against any demand to pay taxes arising from the Contractors failure to pay taxes on compensation earned pursuant to this Agreement. The County will pay sales and use taxes imposed on goods or services acquired hereunder as required by law. The Contractor must pay all other taxes, including, but not limited to, Business and Occupation Tax, taxes based on the Contractors gross or net income, or personal property to which the County does not hold title. The County is exempt from Federal Excise Tax. 22.1 Withholding Payment: In the event the County's Administrative Officer determines that the Contractor has failed to perform any obligation under this Agreement within the times set forth in this Agreement, then the County may withhold from amounts otherwise due and payable to Contractor the amount determined by the County as necessary to cure the default, until the Administrative Officer determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling Contractor to termination or damages, provided that the County promptly gives notice in writing to the Contractor of the nature of the default or failure to perform, and in no case more than 10 days after it determines to withhold amounts otherwise due. A determination of the Administrative Officer set forth in a notice to the Contractor of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the Contractor acts within the times and in strict accord with the provisions of the Disputes clause of this Agreement. The County may act in accordance with any determination of the Administrative Officer which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the Contractor, (3) to set off any amount so paid or incurred from amounts due or to become due the Contractor. In the event the Contractor obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to Contractor by reason of good faith withholding by the County under this clause. 23.1 Labor Standards: The Contractor agrees to comply with all applicable state and federal requirements, including but not limited to those pertaining to payment of wages and working conditions, in accordance with RCW 39.12.040, the Prevailing Wage Act; the Americans with Disabilities Act of 1990; the Davis -Bacon Act; and the Contract Work Hours and Safety Standards Act providing for weekly payment of prevailing wages, minimum overtime pay, and providing that no laborer or mechanic shall be required to work in surroundings or under conditions which are unsanitary, hazardous, or dangerous to health and safety as determined by regulations promulgated by the Federal Secretary of Labor and the State of Washington. Series 30-39: Provisions Related to Administration of Agreement 30.1 Independent Contractor: The Contractors services shall be furnished by the Contractor as an independent contractor, and nothing herein contained shall be construed to create a relationship of employer -employee or master -servant, but all payments made hereunder and all services performed shall be made and performed pursuant to this Agreement by the Contractor as an independent contractor. The Contractor acknowledges that the entire compensation for this Agreement is specified in Exhibit "B" and the Contractor is not entitled to any benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other insurance benefits, or any other rights or privileges afforded to employees of the County. The Contractor represents that he/she/it maintains a separate place of business, serves clients other than the County, will report all income and expense 111_071311 Edge Analytical Page 4 accrued under this contract to the Internal Revenue Service, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. Contractor will defend, indemnify and hold harmless the County, its officers, agents or employees from any loss or expense, including, but not limited to, settlements, judgments, setoffs, attorneys' fees or costs incurred by reason of claims or demands because of breach of the provisions of this paragraph. 30.2 Assignment and Subcontracting: The performance of all activities contemplated by this agreement shall be accomplished by the Contractor. No porfion of this contract may be assigned or subcontracted to any other individual, firm or entity without the express and prior written approval of the County. 30.3 No Guarantee of Employment: The performance of all or part of this contract by the Contractor shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee of the Contractor or any subcontractor or any employee of any subcontractor by the County at the present time or in the future. 32.1 Confidentiality: The Contractor, its employees, subcontractors, and their employees shall maintain the confidentiality of all information provided by the County or acquired by the Contractor in performance of this Agreement, except upon the prior written consent of the County or an order entered by a court after having acquired jurisdiction over the County. Contractor shall immediately give to the County notice of any judicial proceeding seeking disclosure of such information. Contractor shall indemnify and hold harmless the County, its officials, agents or employees from all loss or expense, including, but not limited to, settlements, judgments, setoffs, attorneys' fees and costs resulting from Contractor's breach of this provision. 33.1 Right to Review: This contract is subject to review by any Federal, State, or County auditor. The County or its designee shall have the right to review and monitor the financial and service components of this program by whatever means are deemed expedient by the Administrative Officer or by the County Auditor's Office. Such review may occur with or without notice and may include, but is not limited to, on -site inspection by County agents or employees, inspection of all records or other materials which the County deems pertinent to the Agreement and its performance, and any and all communications with or evaluations by service recipients under this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for three (3) years after contract termination, and shall make them available for su ch review, within Whatcom County, State of Washington, upon request. Contractor also agrees to notify the Administrative Officer in advance of any inspections, audits, or program review by any individual, agency, or governmental unit whose purpose is to review the services provided within the terms of this Agreement. If no advance notice is given to the Contractor, then the Contractor agrees to notify the Administrative Officer as soon as it is practical. 34.1 Proof of Insurance: The Contractor shall carry for the duration of this Agreement general liability and property damage insurance with the following minimums: Property Damage per occurrence - $500,000.00 General Liability & Property Damage for bodily injury- $1,000,000.00 A certificate of such insurance is attached hereto as Exhibit "C." 34.2 Industrial Insurance Waiver: With respect to the performance of this agreement and as to claims against the County, its officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this agreement extend to any claim brought by or on behalf of any employee of the Contractor. This waiver is mutually negotiated by the parties to this agreement. 34.3 Defense & Indemnity Agreement: The Contractor agrees to defend, indemnify and save harmless the County, its appointed and elective officers and employees, from and against all loss or expense, including, but not limited to, judgments, settlements, attorneys' fees and costs by reason of HI. 071311 Edge Analytical Page 5 39 any and all claims and demands upon the County, its elected or appointed officials or employees for damages because of errors and or omissions in any laboratory analysis, personal or bodily injury, including death at any time resulting therefrom, sustained by any person or persons and on account of damage to property, including loss of use thereof, whether such injury to persons or damage to property is due to the negligence of the Contractor, its subcontractors, its successor or assigns, or its agents, servants, or employees, the County, its appointed or elected officers, employees or their agents, except only such injury or damage as shall have been occasioned by the sole negligence of the County or its appointed or elected officials or employees. It is further provided that no liability shall attach to the County by reason of entering into this contract, except as expressly provided herein. 35.1 Non -Discrimination in Employment: The County's policy is to provide equal opportunity in all terms, conditions, and privileges of employment for all qualified applicants and employees without regard to race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status. The Contractor shall comply with all laws prohibiting discrimination against any employee or applicant for employment on the grounds of race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Furthermore, in those cases in which the Contractor is governed by such laws, the Contractor shall take affirmative action to insure that applicants are employed, and treated during employment, without regard to their race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Such action shall include, but not be limited to: advertising, hiring, promotions, layoffs or terminations, rate of pay or other forms of compensation benefits, selection for training including apprenticeship, and participation in recreational and educational activities. In all solicitations or advertisements for employees placed by them or on their behalf, the Contractor shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The foregoing provisions shall also be binding upon any subcontractor, provided that the foregoing provision shall not apply to contracts or subcontractors for standard commercial supplies or raw materials, or to sole proprietorships with no employees. 35.2 Non -Discrimination in Client Services: The Contractor shall not discriminate on the grounds of race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, disability, or veteran status; or deny an individual or business any service or benefits under this Agreement; or subject an individual or business to segregation or separate treatment in any manner related to his/her/its receipt any service or services or other benefits provided under this Agreement; or deny an individual or business an opportunity to participate in any program provided by this Agreement. 36.2 Conflict of Interest: If at any time prior to commencement of, or during the term of this Agreement, Contractor or any of its employees involved in the performance of this Agreement shall have or develop an interest in the subject matter of this Agreement that is potentially in conflict with the County's interest, then Contractor shall immediately notify the County of the same. The notification of the County shall be made with sufficient specificity to enable the County to make an informed judgment as to whether or not the County's interest may be compromised in any manner by the existence of the conflict, actual or potential. Thereafter, the County may require the Contractor to take reasonable steps to remove the conflict of interest. The County may also terminate this contract according to the provisions herein for termination. 37.1 Administration of Contract: This Agreement shall be subject to all laws, rules, and regulations of the United States of America, the State of Washington, and political subdivisions of the State of Washington. The Contractor also agrees to comply with applicable federal, state, county or municipal standards for licensing, certification and operation of facilities and programs, and accreditation and licensing of individuals. The County hereby appoints, and the Contractor hereby accepts, the Whatcom County Executive, and his or her designee, as the County's representative, hereinafter referred to as the Administrative Officer, for the purposes of administering the provisions of this Agreement, including the County's right to receive and act on all reports and documents, and any auditing performed by the County related to this Agreement. The Administrative Officer for purposes of this agreement is: Jeff Hegedus, Environmental Health Supervisor HI,_071311 Edge Analytical Page 6 us] Whatcom County Health Department 509 Girard Street Bellingham, WA 98225 (360)676-6724, ext. 50895 37.2 Notice: Except as set forth elsewhere in the Agreement, for all purposes under this Agreement except service of process, notice shall be given by the Contractor to the County's Administrative Officer under this Agreement. Notice to the Contractor for all purposes under this Agreement shall be given to the address provided by the Contractor herein above in the "Contractor Information" section. Notice may be given by delivery or by depositing in the US Mail, first class, postage prepaid. Series 40.49: Provisions Related to Interpretation ofAgreement and Resolution of Disputes 40.1 Modifications: Either party may request changes in the Agreement. Any and all agreed modifications, to be valid and binding upon either party, shall be in writing and signed by both of the parties. 41.1 Severability: If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 41.2 Waiver: Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior or subsequent breach. No term o r condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. The failure of the County to insist upon strict performance of any of the covenants and agreements of this Agreement, or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such, or any other covenants or agreements, but the same shall be and remain in full force and effect. 42.1 Disputes: a. General: Differences between the Contractor and the County, arising under and by virtue of the Contract Documents, shall be brought to the attention of the County at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. Except for such objections as are made of record in the manner hereinafter specified and within the time limits stated, the records, orders, rulings, instructions, and decisions of the Administrative Officer shall be final and conclusive. b. Notice of Potential Claims: The Contractor shall not be entitled to additional compensation which otherwise may be payable, or to extension of time for (1) any act or failure to act by the Administrative Officer or the County, or (2) the happening of any event or occurrence, unless the Contractor has given the County a written Notice of Potential Claim within ten (10) days of the commencement of the act, failure, or event giving rise to the claim, and before final payment by the County. The written Notice of Potential Claim shall set forth the reasons for which the Contractor believes additional compensation or extension of time is due, the nature of the cost involved, and insofar as possible, the amount of the potential claim. Contractor shall keep full and complete daily records of the work performed, labor and material used, and all costs and additional time claimed to be additional. c. Detailed Claim: The Contractor shall not be entitled to claim any such additional compensation, or extension of time, unless within thirty (30) days of the accomplishment of the portion of the work from which the claim arose, and before final payment by the County, the Contractor has given the County a detailed written statement of each element of cost or other compensation requested and of all elements of additional time required, and copies of any supporting documents evidencing the amount or the extension of time claimed to be due. 11L_07131 I Edge Analytical Page 7 41 43.1 Venue and Choice of Law: In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action of litigation shall be in the courts of the State of Washington in and for the County of Whatcom. This Agreement shall be governed by the laws of the State of Washington. 44.1 Survival: The provisions of paragraphs 11.1, 11.2, 11.3 , 21.1, 22.1, 30.1, 31.1, 31.2, 32.1, 33.1, 34.2, 34.3, 36.1, 40.2, 41.2, 42.1, and 43.1, if utilized, shall survive, notwithstanding the termination or invalidity of this Agreement for any reason. 45.1 Entire Agreement: This written Agreement, comprised of the writings signed or otherwise identified and attached hereto, represents the entire Agreement between the parties and supersedes any prior oral statements, discussions or understandings between the parties. HL_071311 Edge Analytical Page 8 42 EXHIBIT "A" (SCOPE OF WORK) 1. This contract provides for laboratory testing services, as may be necessary or required by the Whatcom County Health Department, for the analysis of samples generated in environmental health programs such as site hazard assessment, water, wastewater, solid waste, and biosolids management. 2. Contractor to provide laboratory testing services, as may be requested by County, for analytical parameters as listed in Exhibit D. Additionally, Contractor will provide local consulting, sample pick-up and delivery, sample bottles, coolers and ice -packs. HL_071311 Edge Analytical Page 9 43 EXHIBIT "B" (COMPENSATION) I.Budget and Source of Funding: The source of funding for this contract, in the amount not to exceed $25,000.00, is the Remedial Action Grant with the Department of Ecology. II. Budget, Rates, and/or Allowable Costs Contractor will provide laboratory testing services for analytical services as per the attached Rate Sheet in Exhibit D. Expedited analysis for 5 day turn -around shall be performed at list price plus 50%. Expedited analysis for 3 day turn -around shall be performed at list price plus 100%. Contractor will also provide local consulting, sample pick-up and delivery, sample bottles, coolers and ice -packs at no additional charge. III. Invoicing 1. The Contractor shall submit itemized invoices on a monthly/quarterly basis in a format approved by the County. Monthly/quarterly invoices must be submitted by the 15th of the month following the month of service. Invoices submitted for payment must include: (1). The "site" name and or designation that the sample is from; (2). Type of laboratory analysis performed; (3). Rate for processing; 2. The Contractor shall submit invoices to (include contract/P0 #): Attention: Business Office Whatcom County Health Department 509 Girard Street Bellingham, WA 98225 3. Payment by the County will be considered timely if it is made within 30 days of the receipt and acceptance of billing information from Contractor. The County may withhold payment of an invoice if the Contractor submits it more than 30 days after the expiration of this contract. 4. Invoices must include the following statement, with an authorized signature and date: I certify that the materials .have been furnished, the services rendered, or the labor performed as described on this invoice. 5. Duplication of Billed Costs or Payments for Service: The Contractor shall not bill the County for services performed or provided under this contract, and the County shall not pay the Contractor, if the Contractor has been or will be paid by any other source, including grants, for those costs used to perform or provide the services in this contract. The Contractor is responsible for any audit exceptions or disallowed amounts paid as a result of this contract. HL_071311 Edge Analytical Page 10 Exhibit C A�D � - CERTIFICATE OF LIABILITY INSURANCE YY 5/31/2011 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION, ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: It the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed- M SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Wycoff Insurance Agency Inc. PHONE (360) 336-2112_ FAA Hsi- (360)333-524I 501 South 2nd Street 1MELRUs__.__ PRODUCER . .. P. O. BOX 1010 T Mount Vernon WA 98273 !!SURER(SI AFFORDINGCOVERAGE NAICN INSURED INSURERA:LSI7®rtY NOrtI1W0St InSur3n2e.._._._....... - .... ,...... -, NSURER 8: Edge Anal tical .._.... .. .............-------------,,. _......... Y NSURER C 1620 S. Walnut Street ----..__ .:. ................._..............---,.._ „__ _......_.........._........ .....,.._ _INSURER D INSURER E: �.._,»,.............. .... Burlin ton WA 98233 .__._..._____,._.,.._....- ..... .-- -. .__...... . .................. g INSURER F: r•na/CQAPFa r_FQTIFIr:4TF NI IMRFR-2011-12 avin-:N1N N1IMRFQ• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUWECT TO ALL THE TERMS. EXCLUSIONSAND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS- ......_____ ..- ....._�_.._.._ . ...._. .... ..._ .._ ..._-.... . .............___-_........__. TYPE OF INSURANCE ADDL'!SUSR -- POLICY EFF POLICY EJ(P ILTR INeR: WVp POLICY NUMBER i MMIODMfYY ' MMIDDIYYYY ._ ..__ LIMITS .. .................. ._.. GENERALLIASILITY EACH OCCURRENCE �'S____ 000, 000 X COMMERCIAL GENERAL LIABILITY _ _ 'PREM S�S(STiENTED _ TOO, OOO _.___.._....0 .. ' .4/1/2011 4/1/2012 A _ CLAIMS -MADE X OCCUR CO3 172536 MED CXP (A ty ona pn wn) : 5 5 , 000 PERSONAL &ADV INJURV S - 11 OOO, 000 _ I GF.NERALAGGRECATE j6 2, 000, 000 GEN'L AGGREGATE. LIMIT APPLIES PER - I PRODUCTS - COMP/OP AGO ..�. .. PRO- X POLICY : ' ,IECT LOG N AUTOMOBILE LIABILITY ! COMBINED SINGLE LIMIT is 1,000,000 X ANY AUfO (Ea aceld—) I.. ......._..___ _... _. _ _._.. ' CO3 172536 ;4/1/2011 4/1/2012 'BOOILYINJURY(Perperean) S .. __..____—.,______. _ A ALL OVMEO AUTOS - _..._.._._....__..........__ BODILY INJURY (Per accident) S ._. SCHEDULED AUTOS — "'.,...'.'._•...�....'..,,."".' PROPERTY DAMAGE .. . HIRED AUTOS (Per accidere) S NONOWNEO AUTOS - —... ...................... .__............ .... ....... _. • S UMBRELLA DAB X OCCUR EACH OCCURRENCE S 2, 000, 000 ]( EXCESS LIAR _ CLANS -MADE i AGGREGATE S 2 , DOO, 000 DEDUCTIBLF. ......... ..........._......... _........ ' CO3 1725364/1/2011 4IIIZO12 A RETENTION S � '� :S WORKERSCOMPENSATION '' A WC STATU- OTH•. AND EMPLOYERS'LIABWTY YIN ANY PROPRIETOR/PARTNERIEXBCUTNE WASHINGTON STOP GAP ONLY ....._.... ... ... E_L,EACI_I ACCIDENT ,.. .. .., 11..0091000 OFFICERIMEMBER EXCLUDED? ❑.N/A CO3 172536 (Mande[ory In NH) 4/1 /2011 4/1 /2012 _S :-k!n-01SEASE - EAKMLO-E L _ 1,000, 000 If yuS. deunbe under DESCRIPTION Or OPERATIONS below __ - E.L DISEASE - POLICY LIMIT S 11000.000 DESCRIPTION OF OPERATONS / LOCATIONS I VWIICLES (ADach ACORD 101. Additional Remarks Schedule, N more space to req,Wdl) WIMTCOM COUNTY IS NAMED AS ADDITIONAL INSURED TO THE GENERAL LIABILITY POLICY AS RESPECTS TO WORK PERFORMED ON THEIR BEHALF BY THE NAMED INSURED PER THE ATTACHED FORM LGL 4037 07 03, Wi3ATCOM COUNTY 509 GIRARD STREET BELLINGHAM, WA 98225 ACORD 25 (2 HL_071311 Edge Analytical SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL HE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. ,/ v - The ACORD name and loco are reolstered All rights reserved. Page 11 45 EXHIBIT "D" (Rate Sheet) 1.. Site Hazard Assessment Method Description Unit *Price ($) 8260B BETX in soil All Analytes 106 BETX in water All AnalYtes 88 8270C PAHs in soil All Analytes 176 PAHs in water . All Analytes 189 NWTPH-HCID Hydrocarbon Identification in soil All Analytes 75 Hydrocarbon Identification in water All Analytes 71 NWTHP-Dx Diesel in soil All Analytes 71 Diesel in water All Analytes 71 NWTPH-GA Gasoline in soil , All Analytes 106 Gasoline in water All Analytes 88 6010B EPA Priority Pollutant Metals in soil All Analytes 142 EPA Priority Pollutant Metals in water All Analytes 142 Individual Metal in water/soil Each 16 6020 EPA Priority Pollutant Metals in soil All Analytes 142 EPA Priority Pollutant Metals in water All Analytes 142 Individual Metal in water/soil Each 16 7470A Mercury in soil Each 24 Mercury in water Each 24 8081/8082 Organochlorine Pesticides and PCB in soil All Analytes 225 8081A Organochlorine Pesticides in soil (DDT and Lindane) in water All Analytes 145 Organochlorine Pesticides in water (DDT and L i n d a n e) i n s o i l All Analytes 138 8260B Volatile Organic Compounds in soil All Analytes 216 Volatile Organic Compounds in water All Analytes 198 �5035A Volatile Organic Compounds in soil All Analytes 105 (2). Solid Waste Method 'Description Unit Price ($) 100.1 Asbestos Each 240 SM5210B BOD Each 42 SM5220C COD Each 28 SM5310C TOC Each 34 SM2540D TSS Each 15 200.8/200.7 Dissolved or Total Metals Each 16 245.1 Mercury Each 26 SM4500-CN C Cyanide Each 40 SM4500 NH3 G Ammonia by Automated Phenate Each 16 SM2510B Conductivity Each 15 HL_071311_Edge Analytical Page 12 we EXHIBIT "D" (Rate Sheet) 1.. Site Hazard Assessment Method Description Unit *Price ($) 8260E BETX in soil All Analytes 106 BETX in water All AnalYtes 88 8270C PAHs in soil All Analytes 176 PAHs in water . All Analytes 189 NWTPH-HQD Hydrocarbon Identification in soil All Analytes 75 Hydrocarbon Identification in water All Analytes 71 NWTHP-Dx Diesel in soil All Analytes 71 Diesel in water All Analytes 71 NWTPH-Gx Gasoline in soil , All Analytes 106 Gasoline in water All Analytes 88 6010E EPA Priority Pollutant Metals in soil All Analytes 142 EPA Priority Pollutant Metals in water All Analytes 142 Individual Metal in water/soil Each 16 6020 EPA Priority Pollutant Metals in soil All Analytes 142 EPA Priority Pollutant Metals in water All Analytes 142 Individual Metal in water/soil Each 16 7470A Mercury in soil Each 24 Mercury in water Each 24 8081/8082 Organochlorine Pesticides and PCB in soil All Analytes 225 8081A Organochlorine Pesticides in soil (DDT and Lindane) in water All Analytes 145 Organochlorine Pesticides in water (DDT and L i n d a n e) i n s o i l All Analytes 138 8260B Volatile Organic Compounds in soil All Analytes 216 Volatile Organic Compounds in water All Analytes 198 5035A Volatile Organic Compounds in soil All Analytes 105 (21. Solid Waste Method 'Description Unit Price ($) 100.1 Asbestos Each 240 SM5210B BOD Each 42 SM5220C COD Each 28 SM5310C TOC Each 34 SM2540D TSS Each 15 200.8/200.7 Dissolved or Total Metals Each 16 245.1 Mercury Each 26 SM4500-CN C Cyanide Each 40 SM4500 NH3 G Ammonia by Automated Phenate Each 16 SM2510B Conductivity Each 15 HL_071311—Edge Analytical Page 12 47 WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2011-226 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: PH E 0 E� V E D JUL. 0.5 2011 7/12/11 Fin/Council Division Head: ) Dept. Head: /A� fi Prosecutor: 2�Y � , � „ 1NHATCOM COUNTY Purchasing/Budget: COUNCIL Executive: TITLE OF DOCUMENT: 201112012 Interagency Agreement Between Office of Public Defense and Whatcom County ATTACHMENTS: Two (2) Original Interagency Agreements SEPA review required? ( ) Yes ( X) NO Should Clerk schedule a hearing? ( ) Yes (X) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: S UMMAR Y S TA TEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) 201112012 Interagency Agreement with Office of Public Defense Reimbursing Whatcom County a Portion of its Dependency Attorney Costs, in the amount of $32,000 COMMITTEE ACTION. COUNCIL ACTION. Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/council. uEe Whatcom County Superior Court 311 Grand Avenue Bellingham, Washington 98225 (360) 676-7688 MEMO TO: Whatcom County Council FROM: N.F. Jackson DATE: June 14, 2011 N.F. Jackson Whatcom County Clerk — Superior Court Administrator nfjackson@whatcomcounty.us _ FAX (360) 676-6693 RECEIVED jUN 23 2011 FETE KREMEN COUNTY EXECUTIVE SUBJECT: Agreement with Office of Public Defense, Reimbursement of County for Parent Representation Costs The Office of Public Defense (OPD) has offered to renew its partial reimbursement to the County for fees paid to the contract attorneys for representing indigent parents in juvenile dependency and termination cases. The attached contract provides for that reimbursement, up to the sum of $32,000, pay between 7/l/2011 and 6/30/2012. It is also noteworthy that the agreement also obligates OPD to provide certain dependency -related expenses to be paid for or provided by OPD, heretofore paid by the County, an additional but modest savings to Whatcom County. It appears, but is not yet certain, that OPD will contract directly with a Whatcom attorney to take a full caseload, partially relieving the court contract attorneys from a too -large caseload. . • WHATCOM COUNTY CONTRACT INFORMATION SHEET Whatcom County Contract No. '-�oI10(aoly Originating Department: Superior Court ContractAdministrator: N.F. Jackson Contractor's /Agency Name: Off ice of Public Defense Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes X No Yes _ No If yes, previous number(s): Is this a grant agreement? Yes No X If yes, grantor agency contract number(s) CFDA number Is this contract grant funded? Yes No X If yes, associated Whatcom County grant contract number(s) Is this contract the result of a RFP or Bid process? Yes _ No X If yes, RFP and Bid number(s) Contract Amount: (sum of orig contract If a Professional Services Agreement is more than $15, 000 or a Bid is amt and any prior amendments) more than $35, 000, please submit an Agenda Bill for Council $$32, 000 approval and a supporting memo. Any amendment that provides This Amendment Amount: either a 10% increase in amount or more than $10, 000, whichever is $ greater, must also go to Council and will need an agenda bill and supporting memo. If less than these thresholds, just submit to Total Amended Amount: $ Executive with supporting memo for approval. Scope of Services [Insert language from contract (Exhibit A) or summarize; expand space as necessary] Partial reimbursement of attorney fees paid to contract attorneys representing indigent parents in juvenile dependency and termination cases. Term of Contract: 71112011 Expiration Date: 6/30/2012 1. Prepared by: 2. Attorney reviewed: 3. AS Finance reviewed: 4. IT reviewed if IT related 5. Corrections made: 6. Attorney signoff.- 7. Contractor signed: 8. Submitted to Exec Office 9. Reviewed by DCA 10. Council approved (if necessary) ll. Executive signed: 12. Contractor Original 13. Returned to dept; 14. County Original to Council M Date &- Z /. /l [electronic) Date % - [electronic] Date 7- ( 1 [electronic] Date [electronic] Date [electronic] hard copy printed Date Date Date 61Zglti [summary via electronic; hardcopies] Date Date Date Date Date this form may need to expand to more than one page 50 WHATCOM COUNT CONTRACT NO. .2o�lo��r`f OPD Contract No. IAA12124 INTERAGENCY AGREEMENT BETWEEN THE STATE OF WASHINGTON OFFICE OF PUBLIC DEFENSE AND WHATCOM COUNTY THIS AGREEMENT is made and entered into by and between the OFFICE OF PUBLIC DEFENSE, hereinafter referred to as "OPD" and WHATCOM COUNTY, hereinafter referred to as "COUNTY". IT IS THE PURPOSE OF THIS AGREEMENT to provide support to COUNTY to improve the quality of parent's indigent defense services in dependency and termination cases in Whatcom County Juvenile Court and implement practice standards and contribute funding to COUNTY in the amount of Thirty Two Thousand and 00/100 Dollars ($32,000). THEREFORE, IT IS MUTUALLY AGREED THAT: OPD AGREES TO: 1. Pay to County a total of Thirty Two Thousand and 00/100 Dollars ($32,000) in twelve (12) monthly installments of Two Thousand Six Hundred Sixty Six and 66/100 Dollars ($2,666.66) beginning July 1, 2011; 2. Provide access to training for the current contractors that provide indigent defense services for parents in dependency and termination cases in Whatcom County Juvenile Court; 3. Provide access to funding for OPD approved expert services in indigent defense services for parents in dependency and termination cases in Whatcom County Juvenile Court; and 4. Provide access to social worker services for indigent parents in dependency and termination cases in Whatcom County Juvenile Court. COUNTY AGREES TO: 1. Renew existing contracts for indigent parent's defense services in dependency and termination cases in Whatcom County Juvenile Court through the end of June 2012; and 2. Facilitate the implementation of practice standards in indigent parent's defense services in dependency and termination cases in Whatcom County Juvenile Court. PERIOD OF PERFORMANCE Subject to its other provisions, the period of performance of this Agreement shall commence on July 1, 2011 or date of last signature, whichever is later, and be completed on June 30, 2012, unless terminated sooner or extended, as provided herein. BILLING PROCEDURE The COUNTY shall submit invoices to OPD. Payment to COUNTY will be made by the OPD within 30-days of receipt of the invoice. Upon expiration of the Agreement, any claim for payment not already made shall be submitted within 30-days after the expiration date or the end of the fiscal year, whichever is earlier. Page 1 of 3 51 AGREEMENT CHANGES, MODIFICATIONS AND AMENDMENTS This Agreement may be changed, modified or amended by written agreement executed by both parties. ASSIGNMENT The work to be provided under this Agreement, and any claim arising thereunder, is not assignable or delegable by either parry in whole or in part, without the express prior written consent of the other parry, which consent shall not be unreasonably withheld. CONTRACT MANAGEMENT The program manager for each of the parties shall be responsible for and shall be the contact person for all communication and billing regarding the performance of this Agreement. The Program Manager for OPD is: Joanne Moore, Director, Office of Public Defense, PO Box 40957, Olympia, WA 98504-0957. Telephone number. 360.586.3164. Email: ioanne.moore(&opd. wa. qov The Program Manager for COUNTY is N.F. Jackson, Court Administrator, Whatcom County Superior Court, 311 Grand Avenue, Suite 301, Bellingham, Washington 98225-4048. Telephone number: 360.676.7688. Email. nffackson(cowhatcomcounty.us.gov DISPUTES Except as otherwise provided in this contract, when a dispute arises between the parties and it cannot be resolved by direct negotiation, the parties agree to participate in mediation in good faith. The mediator shall be chosen by agreement of the parties. If the parties cannot agree on a mediator, the parties shall use a mediation service that selects the mediator for the parties. The parties agree that mediation shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this contract shall be construed to limit the parties' choice of a mutually acceptable alternative resolution method such as a disputes hearing, a dispute resolution board or arbitration. GOVERNANCE This Agreement is entered into pursuant to and under the authority granted by the laws of the state of Washington and any applicable federal laws. The provisions of this Agreement shall be construed to conform to those laws. In the event of an inconsistency in the terms of this Agreement, 6r between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: a. Applicable state and federal statutes and rules; and b. Any other provisions of the agreement, including materials incorporated by reference. INDEPENDENT CAPACITY The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that parry and shall not be considered for any purpose to be employees or agents of the other parry. Page 2 of 3 52 SEVERABILITY If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement, which can be given effect without the invalid provision if such remainder conforms to the requirements of applicable law and the fundamental purpose of this agreement, and to this end the provisions of this Agreement are declared to be severable. TERMINATION If for any cause, either party does not fulfill in a timely and proper manner its obligations under this Agreement, or if either party violates any of these terms and conditions, the aggrieved party will give the other party written notice of such failure or violation. The responsible party will be given the opportunity to correct the violation or failure within 15-working days. If failure or violation is not corrected, this Agreement may be terminated immediately by written notice of the aggrieved party to the other. WAIVER A failure by either party to exercise its rights under this Agreement shall not preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement unless stated to be such in a writing signed by an authorized representative of the party and attached to the original Agreement. ALL WRITINGS CONTAINED HEREIN This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. IN WITNESS WHEREOF, the parties have executed this Agreement. STATE OF WASHINGTON WHATCOM COUNTY OFFICE OF PUBLIC DEFENSE Signature Title Date OPD Version 1-June 09, 2011 Signature wAOJCarn COldh�y Cxec�five Title Date 53 STATE OF WASHINGTON § § ss. COUNTY OF WHATCOM § On this the _ day of , 20_, before me personally appeared Pete Kremen, to me known as the Executive of Whatcom County, who executed the above instrument and who acknowledged to me the act of signing sealing thereof. NOTARY PUBLIC IN AND FOR THE STATE OF WAS HINGTON, Residing at: My Commission Expires: Approved as to form: Civil Deputy Prosec,ng Attorney 54 AB2011-227 WHATCOM COUNTY COUNCIL AGENDA BILL NO. CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: RL 6129/12011 R E C E( V E D Lrll it �C J U L 0 5 2011 7/12/11 Fin/Cncl Division Head: Dept. Head: WHATCOM COUNTY COUNCIL Prosecutor: -QI- ll Purchasing/Budget: Executive: TITLE OF DOCUMENT. Approval of Inter -Local agreement granting the City of Blaine utility Easements within Semiahmoo County Park. ATTACHMENTS: 1. Map showing proposed easement locations within Semiahmoo County Park Z Draft legal descriptions for proposed utility easements final descriptions would follow final construction) SEPA review required? ( ) Yes ( x) NO Should Clerk schedule a hearing ? ( ) Yes ( x SEPA review completed? ( ) Yes ( ) NO ) NO Requested Date: SUMMA R Y S TA TEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) To grant the City of Blaine a new utility easement for a proposed reclaimed waterline and record corrections to previously granted utility easements within Semiahmoo County Park. The easement locations and dimensions are shown on the attached map, and draft legal descriptionsare attached for reference. Parks has reviewed the easement request and worked with the City of Blaine to locate the proposed utility easements to minimize potential impacts to park facility. Also, because federal and state grant monies were used in acquisition of the property, Parks has reviewed the City's request with the State Recreation and Conservation Office (RCO). RCO has since reviewed the request and determined that proposed utility easements are permissible within the terms and conditions of the grant. COMMITTEE ACTION: COUNCIL ACTION: Related County Contract #: Relater! File Numbers: Ordinance or Resolution Number: l Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/council. Semiahmoo Park Utility Easement Page 2 v 1.0 55 WHATCOM COUNTY CONTRACT INFORMATION SHEET Whatcom County Contract No. aZOI / C>�,bl � Originating Department: Park & Recreation Contract Administrator: Rod Lamb Contractor's /Agency Name: [Expand this space if you have more than one contractor] Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes x No Yes _ No If yes, previous number(s): Is this a grant agreement? Yes _ No _x__ If yes, grantor agency contract number(s) CFDA number Is this contract grant funded? Yes _ No x_ If yes, associated Whatcom County grant contract number(s) Is this contract the result of a RFP or Bid process? Yes No x If yes, RFP and Bid number(s) Contract Amount: (sum of orig contract amt If a Professional Services Agreement is more than $15, 000 or a Bid is more than and any prior amendments) $35, 000, please submit an Agenda Bill for Council approval and a supporting $_N/A This Amendment Amount: memo. Any amendment that provides either a 10% increase in amount or more than $10,000, whichever is greater, must also go to Council and will need an $_NIA agenda bill and supporting memo. If less than these thresholds, just submit to Total Amended Amount: Executive with supporting memo for approval. $ N/A Scope of Services The City of Blaine has requested approval of several utility easements located within Semiahmoo County Park. The easements are necessary to: (1) allow the City to extend a reclaimed waterline from the existing wastewater treatment plant to Semiahmoo Parkway, and (2) record corrections to previously granted utility easements within the Park. Term of Contract: Expiration Date: N/A Contract Routing Sterns & Sienoff.` %sign or initiall [indicate date transmitted 1_ Prepared by: R. Lamb Date 612912011_ [electronic] 2. Attorney reviewed:� f Date (_ _ y [electronic] 3. AS Finance reviewed.- Date [electronic] 4. IT reviewed iflT related Date [electronic] 5. Corrections made: / _ Date G Q S t r [electronic] hard copy printed 6Attorney signoff. Date 7. Contractor signed: Date 8. Submitted to Exec Office Date [summary via electronic; hardcopies] 9. Reviewed by DCA Date 10. Council approved (if necessary) Date 11. Executive signed: Date 12. Contractor Original 13. Returned to dept; Date 14. County Original to Council Date this form may need to expand to more than one page this form may need to expand to more than one page Semiahmoo Park Utility Easement Page 3 v 1.0 56 WHATCOM COUNTY PARKS & RECREATION DEPT. 3373 Mount Baker Highway, Bellingham, WA 98226 MEMORANDUM TO: Pete Kremen, County Executive FROM: Michael McFarlane RE: Semiahmoo Utility Easements DATE: 6/29/2011 Michael McFarlane Director RECEIVED JUN 2 9 2011 PETEE c KHEMEN COUNTY EXECUTIVE Enclosed are two (2) originals of a map showing proposed utility easements requested by the City of Blaine, and draft legal descriptions of the proposed utility easements for your review. ■ Background and Purpose The City of Blaine has requested approval of several utility easements located within Semiahmoo County Park. The easements are necessary to: (1) allow the City to extend a reclaimed waterline from the existing wastewater treatment plant to Semiahmoo Parkway, and (2) record corrections to previously granted utility easements within the Park. ■ Funding Amount and Source No County funds will be used in this request. ■ Differences from Previous Contract N/A Please contact Michael McFarlane at extension 32072, if you have any questions or concerns. Encl. Semiahmoo Park Utility Easement Page I v 1.0 57 After recording return document to: Whatcom County Parks & Recreation Dept. 3373 Mt. Baker Highway Bellingham, WA 98226 DOCUMENT TITLE: Semiahmoo Park Utility Easement REFERENCE NUMBERS: 920103172, 920103173, 920103174, 920103175, 920103176,920103177 & 920103182 THIS INDENTURE is made this 28 day of June, 2011, between WHATCOM COUNTY (hereinafter "Grantor"), and the CITY OF BLAINE, a municipal corporation of the State of Washington (hereinafter "Grantee"). WITNESSETH: For valuable consideration, receipt of which is hereby acknowledged, Grantor hereby grants and conveys to Grantee, its successors and assigns, PERPETUAL EASEMENTS FOR UTILITIES, over, under, upon, and through a portion of that certain real property situate and being in the County of Whatcom, State of Washington, more particularly described as follows (hereinafter "easement area"), TO WIT: ABBREVIATED LEGAL DESCRIPTION: TR LY WITHIN SECS 2-10-11-TOG WI ABTG 2ND CLASS TIDELANDS EXT TO LI OF EXTREME LOW TIDE IN SECS 2-10 DAF- BEG AT W 1/4 COR OF SEC 11 HAVING LAMBERT GROUND COORDINATES OF N 725,693.879-E ASSESSOR'S TAX PARCEL NUMBER: 405102 172124 0000 PERMANENT EASEMENT See attached EXHIBIT "A" and EXHIBIT `B". Grantee may, at any time, enter upon, over, and along the easement area, to construct, inspect, repair, alter, modify, replace, remove, and/or update to present and future technological standards, said utilities. Prior to commencing work, Grantee shall secure all necessary permits to execute work within the easement. Except to make an emergency repair to a damaged utility that would result in property loss or damage with delay, the Grantee shall provide reasonable notification to the Grantor prior to any construction, repair, or maintenance work within the easement area. Because this is a designated historical area, Grantee shall notify the Lummi 01 Nation Tribal Historic Preservation Officer & the Washington State Office of Archaeology and Historic Preservation prior to all earth disturbing activities. Grantee shall not construct any new above ground surface utility structures without prior review and approval of the Grantor. Grantor shall not place or construct a building or other structure that encroaches into the easement area. Grantor shall not plant, nor allow to grow, any type of tree within the easement area. Grantor may, however, establish and maintain within the easement area any of the following: • Landscaping vegetation. • Readily portable/movable landscaping fixtures. • Driveways, pathways, and/or walkways. Grantee shall re-establish the pre-existing grade and/or restore disturbed areas and surface materials to the same or better than the pre-existing condition to the satisfaction of the Grantor. The permanent rights herein granted to Grantee shall continue in force until such time as Grantee, its successors or assigns, shall permanently abandon same and upon such removal or abandonment, all rights hereby granted shall terminate. 59 IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be executed this day of , 20. GRANTOR(S): Pete Kremen, County Executive State of Washington ) ss County of Whatcom ) a �kj' � I ' X�O) jl]�: Randall Watts, secuting Attorney I certify that I know, or have satisfactory evidence, that Pete Kremen is the person who appeared before me, and that said person acknowledged that he/she signed this instrument, and on oath stated that he/she was authorized to execute the instrument as the County Executive of the Whatcom County, and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. Dated Signature Notary Public in and for the State of Washington My appointment expires GRANT Gary Tomsic. City Manager State of Washington ) ) ss County of Whatcom ) I certify that I know, or have satisfactory evidence, that Gary Tomsic is the person who appeared before me, and that said person acknowledged that he/she signed this instrument, and on oath stated that he/she was authorized to execute the instrument as the City Manager of the City of Blaine, and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. Dated �^ Signature Notary Public in and for the State of Washington �- Ia -D_at My appointment expires '°UBOC W SM 61 EXHIBIT "A" Description of Permanent City of Blaine Utility Easements on Semiahmoo Park Property. 1. EASEMENT # 1 POWER LINE TO TRANSFORMER SERVING MUSEUM BUILDING. Preamble; A 15 foot wide strip over under and across a portion of Government Lot 1, Section 10, Township 40 North, Range 1 West, WM, following an existing buried power conduit the centerline of which is described as follows: BEGINNING at the Northeast corner of the "Blaine Sewage Treatment Plant Site Sort Plat" as recorded June 21, 1978, in Book 3 of Short Plats, page 45, records of Whatcom County, Washington, under Auditor's File No. 1292594; thence N. 65° W., 100.12 feet along the Northerly line of said Short Plat to the TRUE POINT OF BEGINNING; thence N.13°19'47"E., 92.79 feet more or less following the existing conduit; thence N.29'25'29"E., 188.77 feet more or less following the existing conduit; thence N.17°52'45"E., 139.56 feet more or less following the existing conduit to an existing transformer; thence continuing N.17°52'45"E., 7.5 feet to the terminus of this easement centerline. 2. EASEMENT # 2 RECLAIMED WATER LINE Preamble; A 15 foot wide strip over under and across a portion of Government Lot 1, Section 10, and Government Lot 1, Section 11, Township 40 North, Range 1 West, WM, the centerline of which is described as follows: BEGINNING at the Northeast corner of the "Blaine Sewage Treatment Plant Site Sort Plat" as recorded June 21, 1978, in Book 3 of Short Plats, page 45, records of Whatcom County, Washington, under Auditor's File No. 1292594; thence N. 65° W., 42.97 feet along the Northerly line of said Short Plat to the TRUE POINT OF BEGINNING; thence N.70'46'06"E., 97.67 feet; thence S.88°34'51"E., 67.67 feet more or less to the westerly margin of Semiahmoo Parkway as recorded March 2, 1992, in Book 1 of Surveys, page 1A, records of Whatcom County, Washington, under Auditor's File No. 920302122 and the terminus of this easement centerline; the edges of the 15 foot wide easement are lengthened or shortened to intersect said Northerly line of "Blaine Sewage Treatment Plant Site Sort Plat" and said westerly margin of Semiahmoo Parkway. 3. EASEMENT # 3 ADDITIONAL ROAD ACCESS WIDTH Preamble; An easement of variable width across a portion of Government Lot 1, Section 10, Township 40 North, Range 1 West, W.M., intended to accommodate the relocated access road serving the former Blaine Sewage Treatment Plant site: BEGINNING at the Northeast corner of the "Blaine Sewage Treatment Plant Site Sort Plat" as recorded June 21, 1978, in Book 3 of Short Plats, page 45, records of Whatcom County, Washington, under Auditor's File No. 1292594; thence N. 65° W., 185.32 feet along the Northerly line of said Short Plat to the TRUE POINT OF BEGINNING; thence N.88°22'E., along the edge of the existing fill, 74 feet more or less to the northwesterly margin of the 20 foot 62 wide easement as recorded December 18, 1991 under Whatcom County Auditor's File No. 920108187; thence southwesterly along said margin, 48.9 feet more or less to the Northerly line of said Short Plat; thence N. 65° W., along the Northerly line of said Short Plat 35 feet more or less to the TRUE POINT OF BEGINNING. 4. RELOCATED WATER MAIN Preamble; A 10 foot wide strip over under and across a portion of Government Lot 1, Section 10, Township 40 North, Range 1 West, W.M., lying 6 feet to the left and 4 feet to the right of the following described line: BEGINNING at the Northeast corner of the "Blaine Sewage Treatment Plant Site Sort Plat" as recorded June 21, 1978, in Book 3 of Short Plats, page 45, records of Whatcom County, Washington, under Auditor's File No. 1292594; thence N. 65° W., 176 feet more or less along the Northerly line of said Short Plat to an intersection with an 8" water main and the TRUE POINT OF BEGINNING; thence N.25°E., 4.00 feet; thence S65°E along the alignment of said water main 143 feet more or less to an angle point; thence N80°E along the alignment of said water main 21 feet more or less to the southwesterly margin of a 30 foot wide easement recorded November 12, 1980 under Whatcom County Auditor's File No. 1376265 and the terminus of said ten foot wide strip. 63 EXHIBIT "B" .A WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2011-228 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator- E. el ts Z7 (1 U U ll E C E UV� E D 7 / 12 / 11 Finance Divisionvision Head: 7112111 Council J. Hutchings % f JUL, 0 5 2011 Dept. Head: F. Abartht WHATCOM COUNTY Prosecutor: D. Gibson COUNCIL Purchasing/Budget.- bb 6127111 B. Bennett Executive: t I P. Kremen TITLE OF DOCUMENT. State of Washington Department of Ecology Grant Agreement G1200003 Northwest Straits Project: Marine Resources Committee (MRC) Administration ATTACHMENTS: Contract information sheet, memo, and grant agreement SEPA review required? ( ) Yes ( X ) NO Should Clerk schedule a hearing? ( ) Yes ( X ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: S UMMA R Y S TA TEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) This grant agreement will be used to fund administrative and action projects for the Whatcom County Marine Resources Committee. Action projects include community education and outreach, a creosote log removal project, and water quality monitoring. COMMITTEE ACTION: COUNCIL ACTION. Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcona.wa.us/council. 65 WHATCOM COUNTY PUBLIC WORKS DEPARTMENT FRANK M. ABART Director MEMORANDUM NATURAL RESOURCES 322 N. Commercial Street, Suite 110 Bellingham, WA 98225 Telephone: (360) 676-6876 FAX: (360) 738-2468 www. whatcomcounty.us RECEIVED JUN 3 0 2011 PETE KREMEN TO: The Honorable Pete Kremen, Whatcom County Executive, A%NTMEXECUTIVE Honorable Members of the Whatcom County Council THROUGH: Frank M. Abart, Public Works Director-- 4(/V�i I FROM: Jon Hutchings, Ph.D., Assistant Director RE: State of Washington Department of Ecology Grant Agreement G1200003— Northwest Straits Project: Marine Resources Committee (MRC) Administration DATE: June 20, 2011 Please find enclosed for your review and signature three (3) originals of CZM310 Grant Agreement No. G1200003, Northwest Straits Project: Marine Resources Committee (MRC) Administration, between the Washington State Department of Ecology (DOE) and Whatcom County for the sum of $27,500. ■ Background and Purpose This grant agreement will fund administrative and action projects for the Whatcom County MRC including community education and outreach, a creosote log removal project, and water quality monitoring. The administrative portion of the budget will fund the continuation of an existing position to support the MRC with meeting coordination, contract administration, consultant management, project implementation, and water quality monitoring. ■ Funding Amount and Source This grant agreement with DOE provides the County with $27,500 for administrative and technical support to the NIRC and to implement action projects. Please contact Erika Stroebel at extension 50692 if you have any questions regarding this agreement. Enclosures WHATCOM COUNTY CONTRACT INFORMATION SHEET Whatcom County Contract No. a017a�pa� Originating Department: Public Works- Natural Resources Contract Administrator: Erika Stroebel, Senior Planner Contractor's /Agency Name: Washington State Department of Ecology Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes X No Yes No If yes, previous number(s): Is this a grant agreement? Yes X No If yes, grantor agency contract number(s) G12000033 CFDA number 11.419 Is this contract grant funded? Yes No If yes, associated Whatcom County grant contract number(s) Is this contract the result of a RFP or Bid process? Yes _ No If yes, RFP and Bid number(s) Contract Amount: (sum of orig contract If a Professional Services Agreement is more than $15, 000 or a Bid is amt and any prior amendments) more than $35, 000, please submit an Agenda Bill for Council $ 27,500 approval and a supporting memo. Any amendment that provides This Amendment Amount: either a 10% increase in amount or more than $10, 000, whichever is $ greater, must also go to Council and will need an agenda bill and supporting memo. If less than these thresholds, just submit to Total Amended Amount: $ Executive with supporting memo for approval. Scope of Services This grant agreement will be used to fund administrative and action projects for the Whatcom County Marine Resources Committee. Action projects include community education and outreach, a creosote log removal project, and water quality monitoring. Term of Contract: July 1, 2011- December Expiration Date :December 31, 2011 31, 2011 Contract Routing Steps & Signoff /sign or initial7 !indicate date transmitted 1. Prepared by: Melissa Roberts Date _6120111 [electronic] 2. Attorney reviewed: L. Gibson Date 06/21/11 [electronic] _Daniel 3. AS Finance reviewed. bbennett Dateu6127111 [electronic] 4. IT reviewed if IT related Date— [electronic] 5. Corrections made: 6. Attorney signoff. Daniel L. Gibson Date Date ._ [electronic] hard copy printed 06121111 7. Contractor signed. Date 8. Submitted to Exec Office ,/ Date 3o I [summary via electronic, hardcopies] 9. Reviewed by DCA Date 10. Council approved (if necessary) Date 11. Executive signed: Date 12. Contractor Original 13. Returned to dept, Date 14. County Original to Council Date this form may need to expand to more than one page 67 WHATCO COUNTY CONTRACT NO. col/0 (0 CZM310 Grant Agreement No. G1200003 between the State of Washington Department of Ecology and Whatcom County Northwest Straits Project: Marine Resources Committee Administration THIS is a binding agreement entered into by and between the State of Washington, Department of Ecology, (PO Box 47600, Olympia, Washington, 98504-7690) hereinafter referred to as the "DEPARTMENT" and Whatcom County MRC, hereinafter referred to as the 'RECIPIENT" to carry out the activities described herein and authorized by the Coastal Zone Management Act of 1972, as amended through 1996. This grant is subject to Congressional actions. Recipient Name Project Coordinators: Phone: e-mail: Fiscal Contact: e-mail: Payee on Warrant: Project Officer for the Department: Phone: e-mail: Whatcom County Erika Stroebel/Melissa Roberts 360-676-6876 estroebe(a)-co.whatcom.wa.us/ mroberts@co.whatcom.wa.us Kolleen Kilpatrick kkilpatr@co.whatcom.wa.us Whatcom County Public Works 322 N Commercial Street Bellingham, WA 98225 Sasha Horst Northwest Straits Commission/Padilla Bay NERR 10441 Bayview-Edison Road Mount Vernon WA 98273 360-428-1084 horst@nwstraits.org The Source of funds provided by the Department are federal Coastal Zone Management 310 funds. (National Oceanic and Atmospheric Administration, Department of Commerce, CFDA #11.419). These funds are subject to congressional actions. Total Eligible Project Cost: $ 27,500 Total State Share: $ 27,500 Local Match: - 0 - The effective date of this agreement is July 1, 2011; the completion date is December 31, 2011. Page 1 of 20 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration Scope of Work Project Title: Marine Resources Committee Administration Description: This grant will be used to fund administration for the Whatcom County Marine Resources Committee. Work Program: In performing the following tasks The RECIPIENT shall comply with the local Shoreline Master Program, local Growth Management Act Comprehensive Plan, SEPA and zoning ordinances. If GIS work or environmental measurement data is to be collected under this agreement, refer to paragraphs 131 and B2 of Special Terms and Conditions of this agreement for compliance with Ecology standards. TASK 1: Administrative Duties 1.1 MRC Meetings and Communication: Schedule and hold meetings; prepare and distribute agenda; prepare and distribute minutes, other logistical and communication functions as needed. 1.2 Grant administration: Prepare progress reports, final report and completion report for Northwest Straits Commission; track and administer budget; contract management and preparing grant applications for MRC projects. 1.3 MRC Web Site: Ongoing maintenance of MRC web site and/or development of content, design, images or other web site features. 1.4 Annual Report: This report will summarize MRC activities and progress on projects, including progress in achieving the Initiative's performance benchmarks, successes and failures in the workplan priorities, training, etc. 1.5 Workplan: The workplan will include the objectives, timeframe, products, and benchmarks addressed. 1.6 Training: The MRC members will attend the annual Northwest Straits Commission training and additional conferences as appropriate. A representative of the MRC will attend each Northwest Straits Commission meeting. 1.7 Community Outreach: Pursue community outreach strategies to build community knowledge and engagement in projects and programs supporting goals of the MRC strategic plan. Deliverables (one hard copy and one electronic copy of each): 1. Update in progress reports (all tasks)- due December 31, 2011 2. Meeting agendas and minutes — due December 31, 2011 3. Web site address and CD of site contents — due December 31, 2011 4. Annual Report — 2011: Due December 31, 2011 5. List of NWSC meetings attended and name of MRC member attending in the progress reports — due December 31, 2011 6. Volunteer hour time tracking — due December 31, 2011 Page 2 of 20 We CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 7. Description of community outreach strategies developed and implemented — due December 31, 2011 TASK 2: Water Quality 2.1 Coastal Drainage Monitoring: The MRC will continue a water quality monitoring project that will measure flow and collect grab surface water samples for fecal coliform analysis on a monthly basis at 15 sites in watersheds draining to Drayton Harbor, Lummi Island, and Chuckanut Bay. New sample sites may be considered to replace sites that have shown water quality improvement and are currently meeting water quality standards. Results will be shared with agencies and groups working to improve water quality to inform management decisions and community outreach in these watersheds. Deliverables (one hard copy and one electronic copy of each): 1. Updated QAPP — due July 15, 2011 2. Update in progress reports — due December 31, 2011. 3. Summary Report on Water Quality Monitoring (including jpg images and volunteer hours) — due December 31, 2011. TASK 3: Marine Habitat 3.1 Creosote Log Removal at Cliffside Beach: Recent surveys indicate approximately 2 tons of treated wood debris has accumulated at the Cliffside Beach area_ Removal of this debris will aid in increasing the clean habitat available and other efforts to improve this area of shoreline. A crew (including field personnel and equipment operators) will verify the locations of the treated wood debris and position them for pick up. Removal operations will be conducted in accordance with permit requirements. Once collected and loaded into containers, the wood debris will be shipped to an appropriate disposal site. Deliverables (one hard copy and one electronic copy of each): 1. Update in progress reports —due December 31, 2011. 2. Summary Report (including jpg images of removal in progress, number of volunteer hours, total amount of debris removed, and copies of press releases or media coverage) — due December 31, 2011. TASK 4: Community Outreach 4.1 Public Speakers: The MRC will bring experts for different fields to help the MRC and community members to understand new research, management challenges, and opportunities/strategies to preserve and restore marine resources in Whatcom County. The MRC will partner with other water resource organizations (e.g. WWIN, shellfish protection districts, salmon recovery team, etc.). Topics and speakers will be identified and events will be advertised through local media outlets and the MRC website. Two MRC hosted public speaker events will be held during this grant period. 4.2 Community Events: The MRC will participate in at least two structured community outreach events during this grant period (e.g. Water Weeks, Salmon Summit, and/or other events). Deliverables (one hard copy and one electronic copy of each): 1. Update in progress reports — due December 31, 2011. Page 3 of 20 70 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 2. Summary Report on all community outreach events including event descriptions, handouts and publicity materials, and sign -in sheets for MRC hosted events (including jpg images and volunteer hours) — due December 31, 2011. Deliverables All products, reports, and payment requests shall be sent to the attention of: Sasha Horst Department of Ecology/Padilla Bay NERR 10441 Bayview-Edison Road Mount Vernon WA 98273 The Recipient shall submit one hard copy and one electronic copy of each Progress Report and one copy of each Payment Request as defined in the Special Terms and Conditions section of this agreement and one hard copy and one electronic copy of each deliverable as defined in the Scope of Work. All deliverables (reports, maps, etc.) are to include the NOAA logo and acknowledgement on the front cover (see Special Terms and Conditions of this agreement). Budget Budget Conditions Project Administration: For the administration of this agreement the Recipient must follow the current edition of the Administrative Requirements for Ecology Grants and Loans (Yellow Book). These documents are available at Ecology's websites: • Forms - http://www.ecy.wa.gov/biblio/9118A.htmi • Yellow Book - http://www.ecy.wa.gov/biblio/9118.htmi 2. Invoicing: • Expenditures will be monitored by the Ecology Fiscal Office for compliance with the PROJECT LEVEL BUDGET (listed below). The RECIPIENT must maintain complete backup documents including but not limited to all invoiced costs and time sheets - signed and dated by employee and supervisor. The RECIPIENT must keep these expenses in grant files according to budget task for a period of three years after project completion and make them available at any time for inspection by the DEPARTMENT. Budget deviations from the line -item EXPENDITURE budget (listed below) are allowed, but in no circumstances may the Recipient exceed the total project cost. If deviations exceed 10% within any task, the Ecology Project Officer may require a written budget redistribution Page 4 of 20 71 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration • When submitting invoices to Ecology, the Recipient must itemize all costs by task and provide subtotals by task on Ecology's Form C2, Voucher Support Form. All payment requests must have forms A, B, C (and D if applicable). NOTE: For payment requests, the RECIPIENT must use the Ecology forms contained in the Yellow Book. Otherwise, we will return requests to the RECIPIENT for submittal on the correct forms. • All payment requests must be accompanied by a commensurate progress report, and receive Ecology Project Officer approval before payment can be released. • Requests for reimbursement must be submitted at least semi-annually but not more than once per month by the RECIPIENT on state invoice voucher forms. • The indirect rate must not exceed 25 percent of direct (staff) labor and benefit costs. This rate covers space utilities, miscellaneous copying, telephone, motor pool, janitorial services, records storage, rental,. county fiscal and legal services, etc. Items not included in this list must be reported with the first payment request and must remain consistent for the life of the grant. • The rate for in -kind (voluntary services) is valued at $15.00/individual/hour. See the Administrative Requirements for Ecology Grants and Loans \ for the "Valuation of Donated Property or Services." 3. An estimate is the dollar amount the recipient anticipates requesting from Ecology for project costs incurred through December 31, 2011 and are not yet submitted for reimbursement. Ecology will contact recipients for this anticipated amount for final billing to ensure sufficient funds are reserved to reimburse the recipient for expenditures incurred, 4. Final payment of grant projects is contingent on receipt of viable work products as listed in the grant document. 5. Funding Budget: (for Recipient reporting and Ecology tracking purposes): Maximum Eligible Project Cost: $27,500 Maximum State Grant Share: $27,500 Estimated Local Share: balance of page left blank intentionally Page 5 of 20 72 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 6. Expenditure Budget (for information only): o. �. AV � m -a — cow 1 MRC Administration $11,070 $3,550 $60 $14,680 2 Water Quality $4,935 $1,800 $6,735 3 Marine Habitat $695 $4,240 $4,935 4 Community Outreach $800 $350 $1,150 TOTAL $17,500 $6,040 $3,550 $350 $60 $27,500 balance of page left blank intentionally Page 6 of 20 73 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration CZM 310 Special Terms & Conditions A. Coastal Zone Management Provisions Planning Area: The services under this grant will be provided in connection with and respecting the following areas, herein called the "ADMINISTRATION AREA": The administration area of the coastal zone management program shall include all those saltwater and tidally influenced shorelines of the state defined in the Shoreline Management Act of 1971, and designated in Chapters 173-18, 173-20, and 173-22 WAC for all the incorporated and unincorporated areas of the city/county, plus those fresh waters which could have a direct and significant impact on coastal waters. 2. Identification of Project Materials - All reports, maps, and other documents produced as part of this grant agreement shall carry the name of the RECIPIENT, Ecology's grant number (in the upper right hand corner), title, the specific task number of the product and date centered on the front cover or title page (or in the case of maps, the block which contains the name of the Government unit or Department) and acknowledgment of the source of funding as follows: County or City Name Grant No. G1200 Project Title Task Title Task Number Date Ili, report— funded in part through e cooperative agrermeot with the National Oe-.ie and Aleneepheric Adod iatrator The views e<pr—ed herein arc those ofthc autho(s) and do not neces9arity redst the — ofNOAA or any ofim sulrag®eies- "This (report, paper, newsletter, etc.) was funded in part through a cooperative agreement with the National Oceanic and Atmospheric Administration." The National Oceanic and Atmospheric t Administration logo must accompany the acknowledgment. "REM OCd' NOTE: If the paper or report is intended for public distribution, the following disclaimer must be included: "The views expressed herein are those of the author(s) and do not necessarily reflect the views of NOAA or any of its subagencies." 3. Format for Publications and Brochures: Any (hard copy) publications or brochures required as a product of this agreement shall conform to minimum - standards of size, 8-1/2" x 11" white, recycled paper equivalent in weight to 20 lb. bond, single spaced, printed both sides, no less than 1" margins. Photos, illustrations, and graphs must be of reproducible quality. Any publications or brochures intended for public distribution shall comply with graphic requirements as specified in Ecology's "Publications Handbook", publication number 91-41 and any additional specifications as may be outlined in the Scope of Work. Page 7 of 20 74 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 4. Submittal of Project Materials / Deliverables: A disk containing copies of all digital deliverables compatible with Microsoft WORD and Ecology GIS Standards will be accepted and contain the following project completion materials: 0 Progress reports: O E-mail on the Padilla Bay NERR Progress Report Form (available electronically): to Ecology's Project Officer and Grant Coordinator by date due in scope of work; A Copy included on Project Completion CD • Report and Map Deliverables: Digital on Compact Disk • Final Completion Report — (for contents, see paragraph 5 below) Digital on Compact Disk • Payment Requests — only hard copy invoices on Ecology forms with original signatures in blue ink will be accepted at this time. 5. Project Completion Requirements: On completion of the project, the Recipient's Project Coordinator shall submit the following information and materials to the Department: a. Digital Proiect Completion Report: The purpose of this report is to document that the project and each of its tasks has been completed. The project completion report contains the following documents: (1) Digital Copy of all Semi -Annual Progress Reports by date. (2) Digital Summary Account - a brief summary (approximately 200-300 words) of the work accomplished under the /grant with respect to each of the surveys, studies, plans, and other planning activities listed in the grant or any amendments to that grant. (3) Digital Reports, Maps, Plans, Exhibits, etc. - The Completion Report must include a list of all reports, maps, plans, and other documents prepared under this grant. For each digital report, map, plan, or other document included, identify the project title, task title, the grant number, the municipality or county, and date prepared per paragraph 2 above "Identification of Project Materials". 6. Semi-annual Progress Reporting: Semi-annual reporting requirements begin on the effective date of the agreement. Reports cover the following periods: -2011 Reporting Period Da"te Que Semi -Annual Report July 1, 2011 — December 31, 2011 December 31, 2011 For timely preparation and review, semi-annual reports need to convey essential information in a simple, concise manner through the use of bulleted summary statements, lists, and tables and include the following: a. A comparison of actual accomplishments by task to the objectives established for the reporting period b. List deliverables due to Ecology by date of this progress report and their status. C. Status of project schedule d. Financial and funds disbursement status e. Personnel changes f. Any difficulties encountered during the reporting period Page 8 of 20 75 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 7. Responsibilities of the Project Coordinator: The Recipient's Project Coordinator shall be responsible for the procedural obligations under this agreement in addition to his/her duty to coordinate the planning effort hereunder. He/She shall cooperate with all parties concerned in every way possible to promote successful completion of the services described in the Scope of Work. 8. Access to Records and Right to Audit: a. The Recipient agrees that the Comptroller General of the United States or any of his duly authorized representatives and the Secretary of Commerce or any of his duly authorized representatives shall, until the expiration of three (3) years after expenditure of funds under this grant, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Recipient involving transactions related to this grant. The Recipient agrees to include the substance of this paragraph into all grants and subcontracts payable from contract funds in whole or in part. b. The Recipient agrees that payment(s) made under this grant shall be subject to reduction for amount charged thereto which are found after audit examination not to constitute allowable costs under this grant. The Recipient shall refund by check payable to the Department the amount of such reduction of payments under completed or terminated grants. 9. Maintenance of Records: All required records shall be maintained until a federal audit is completed and all questions arising there from are resolved, or three (3) years after completion of a project, whichever is sooner. 10. Refund of Payment: If, through any cause, the National Oceanic and Atmospheric Administration (NOAA) disallows reimbursement to the Department for failure to fulfill the grant or stipulations of this grant, the Recipient will reimburse the Department to propor- tionate amount of the federal share of the total grant funds paid by the Department to the Recipient through this grant, or that portion thereof constituting NOAA reimbursement of state grant funding under the terms of this grant. 11. Federal Circular Compliance: As a subrecipient of federal funds, the RECEIPIENT must comply with the following federal regulations: OMB Circular A-133, Audits of States, Local Governments, and Non -Profit Organization OMB Circular A-133, Compliance Supplement OMB Circular A-87, Cost Principles for State, Local and Indian Tribal Governments OMB Circular A-1 02, Uniform Administrative Requirements These federal regulations can be found at: http://www.whitehouse.gov/omb/circulars/ 12. Federal Funding Accountability and Transparency Act (FFATA) Reporting Requirements: FFATA requires giving the public access to information on federal awards (federal financial assistance and expenditures) in a single, searchable website (www.USASpending.gov). Federal awards include grants, subgrants, loans, awards, cooperative agreements and other forms of financial assistance, as well as contracts, subcontracts, purchase orders, task orders, and delivery orders. Page 9 of 20 76 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration In order to comply with the FFATA, the Recipient must complete the FFATA Data Collection Form and return it to the Ecology. Ecology will report basic agreement information, including the required DUNS number, for all federally -funded agreements at www.fsrs.gov . This information will be made available to the public at www.usaspending.. ov. Recipients who do not have a DUNS number can find guidance at www.grants.gov . Please note that Ecology will not pay any invoices until it has received the completed FFATA Data Collection Form. Any recipient that receives 80 percent or more of its annual gross revenues from federal funds, and receives more than $25,000,000 in annual federal funds, must also report compensation for its five top executives. See www.fsrs.gov for details of this requirement. If your organization falls into this category, you must report the required information to Ecology. 13. Government Debarment and Suspension: This agreement is subject to Federal Executive Orders 12549, 12689 and 15 CFR Part 26, Debarment and Suspension and Requirements for a Drug -free Workplace% CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY EXCLUSION: a. Unless authorized by the Department in writing, a person (as defined at 15 CFR Part 26.105(n)) who is debarred or suspended shall be excluded from Federal financial and non -financial assistance and benefits under Federal programs and activities except to the extent prohibited by law or authorized by the U.S. Department of Commerce. b. Unless the U.S. Department of Commerce authorizes in writing an exception in accordance with 15 CFR Parts 26.215, 26.220, and/or 26.625, the Recipient shall not knowingly do business under this agreement with a person who is debarred or suspended, or with a person who is ineligible for or voluntarily excluded from that agreement. The Recipient shall not renew or extend a subaward (other than no -cost time extensions) with any person who is debarred, suspended, ineligible, or voluntarily excluded, except as provided in 15 CFR Part 26.215. 1) The RECIPIENT/CONTRACTOR, by signing this agreement, certifies that it is not suspended, debarred, proposed for debarment, declared ineligible or otherwise excluded from contracting with the federal government, or from receiving contracts paid for with federal funds. If the RECIPIENT/CONTRACTOR is unable to certify to the statements contained in the certification, they must provide an explanation as to why they cannot. 2) The RECIPIENT/CONTRACTOR shall provide immediate written notice to the Department if at any time the RECIPIENT/CONTRACTOR learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3) The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department for assistance in obtaining a copy of those regulations. Page 10 of 20 77 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 4) The RECIPIENT/CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under the applicable Code of Federal Regulations, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction. 5) The RECIPIENT/CONTRACTOR further agrees by signing this agreement, that it will include this clause titled "CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY EXCLUSION" without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 6) Pursuant to 2CFR180.330, the RECIPIENT/CONTRACTOR is responsible for ensuring that any lower tier covered transaction complies with certification of suspension and debarment requirements. 7) RECIPIENT/CONTRACTOR acknowledges that failing to disclose the information required in the Code of Federal Regulations may result in the delay or negation of this funding agreement, or pursuance of legal remedies, including suspension and debarment. 8) RECIPIENT/CONTRACTOR agrees to keep proof in its agreement File, that it, and all lower tier recipients or contractors, are not suspended or debarred, and will make this proof available to the Department upon request. RECIPIENT/CONTRACTOR must run a search in www.epls.gov and print a copy of completed searches to document proof of compliance. 12. Officials Not to Benefit: No member of or delegate to the Congress of the United States, or resident Commissioner, shall be admitted to any share or part of this grant or to any benefit that may arise therefrom. 14. Restrictions on Lobbying: Each bidder/applicant/recipient/ subrecipient of this agreement is generally prohibited from using Federal funds for lobbying the Executive or Legislative Branches of the Federal Government in connection with this award. This agreement is subject to Section 319 of Public Law 101-121, which added Section 1352, regarding lobbying restrictions, to Chapter 13 of Title 31 of the United States Code. The new section is explained in the common rule, 15 CFR Part 28 (55 FR 6736-6748, 2/26/90). balance of page left blank intentionally Page 11 of 20 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration B. Ecology Provisions 1. Coordination with Ecology's Geographical Information System (GIS) IF this project involves developing GIS data, the Recipient shall coordinate with Ecology's GIS office in an effort to promote compatibility and to encourage sharing of geospatial data. To facilitate data sharing, the Department utilizes the following standards: t Ecology's GtS $�a��Iar�s -- ESRI's ARC/INFO Current version ESRI's ArcView I Current Version Horizontal Datum NAD 83 HARN Vertical Datum I NGVD 88 Projection System Lambert Conic Conformal Coordinate System WA State Plane Coordinates Coordinate Zone South Coordinate Units Feet Accuracy Standard +/-40 Feet (1:24,000) minimum accuracy to within a foot of the true North American datums stem Vector Import Format ArcExport, DLG and/or DXF, shapefiles Raster Import Format TIFF, BIUBIP, RLC,GRID,ERDAS, SID Whenever possible, the Recipient is encouraged to utilize the standards listed above when compiling data. To discuss the usage of other standards, please contact Jerry Franklin at 360 407-7470; Fax: 360 407-6902; E-Mail: jfra461 @ecy.wa.gov or John Tooley at 360-407-6418; E-Mail: jtoo461 @ecy.wa.gov for further data sharing and compatibility information. The Recipient shall submit copies to Ecology's Project Officer with complete documentation as it relates to all digital data, GIS coverages, shape files, related tables and map products. 2. Quality Assurance Project Plan (QAPP). IF this project involves the collection of environmental measurement data, the RECIPIENT must prepare a QAPP to ensure the consistent application of quality assurance principles to the planning and execution of all activities involved in generating this data. The plan shall be conducted in accordance with the DEPARTMENT's Guidelines for the Preparation of Quality Assurance Project Plans for Environmental Studies, current edition, (Ecology Publication No. 04-03-030). The plan must describe the monitoring and data quality objectives, procedures, and methodologies which will be used to ensure that all environmental data generated will meet these requirements. The size and complexity of the plan should be cost effective and in proportion to the magnitude of the sampling effort. The RECIPIENT may also reference Technical Guidance for Assessing the Quality of Aquatic Environments, February 1994 (Ecology Publication No. 91-78), in developing the plan. The QAPP shall be composed of a concise description of the environmental measurement aspects of this project. Ecology's Project Officer shall review and approve this plan prior to initiation of work. Page 12 of 20 79 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration The QAPP should describe the following elements: • Assumptions that direct the collection and analysis of data; • Resources used (such as flights for aerial photos); • Resource documents that will be consulted; • Field methods employed; • Office methods employed; • Training level of staff involved in data collection and analysis; • Equipment / materials to be used • Procedures to assure accurate calibration of field instruments. Other supporting documentation, including example QAPPs, QAPP templates, and field SOPs may be found at Ecology's Quality Assurance website: www.ecy.wa.-gov/programs/eap/quality.htmi 3. Administrative Guidelines: The Recipient shall comply with the Department's current edition of "Administrative Requirements for Ecology Grants and Loans", ("Yellow Book") publication number 91-18. The Recipient shall be responsible for maintaining appropriate financial records throughout the life of the project and in accordance with these guidelines. 4. Reimbursement: Grants are awarded on a reimbursable basis. The Recipient initially pays project costs in full. Upon presentation of a billing to the Department, the Department's share of the project is reimbursed to the Recipient. 5. Minority and Women's Business Participation: The RECIPIENT agrees to solicit and recruit, to the maximum extent possible, certified minority -owned (MBE) and women -owned (WBE) businesses in purchases and contracts initiated after the effective date of this Agreement. In the absence of more stringent goals established by the RECIPIENT's jurisdiction, the RECIPIENT agrees to utilize the DEPARTMENT'S goals for minority- and women - owned business participation in all bid packages, request for proposals, and purchase orders. These goals are expressed as a percentage of the total dollars available for the purchase or contract and are as follows: Construction/Public Works Architecture/Engineering Purchased Goods Purchased Services Professional Services 10% MBE 6%WBE 10% MBE 6%WBE 8% MBE 4%WBE 10% MBE 4%WBE 10% MBE 4%WBE No contract award or rejection shall be made based on achievement or non - achievement of the goals. Achievement of the goals is encouraged, however, and the RECIPIENT and ALL prospective bidders or persons submitting qualifications shall take the following affirmative steps in any procurement initiated after the effective date of this Agreement: a. Include qualified minority and women's businesses on solicitation lists. b. Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. Page 13 of 20 :1 CZM Grant Agreement No. G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration C. Divide the total requirements, when economically feasible, into smaller tasks or quantities, to permit maximum participation by qualified minority and women's businesses. d. Establish delivery schedules, where work requirements permit, which will encourage participation of qualified minority and women's businesses. e. Use the services and assistance of the State Office of Minority and Women's Business Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. By signing this Agreement, the RECIPIENT certifies that the above steps were, or will be followed. Any contractor engaged by the RECIPIENT under this agreement shall be required to follow the above five affirmative steps in the award of any subcontract(s). The RECIPIENT shall report to the DEPARTMENT at the time of submitting each invoice, on forms provided by the DEPARTMENT, payments made to qualified firms. The report will address: f. Name and state OMWBE certification number of any qualified firm receiving funds under the voucher, including any sub -and/or sub -subcontractors. g. The total dollar amount paid to qualified firms under this invoice. 6. All Writings Contained Herein: This agreement, the appended "General Terms and Conditions", and the DEPARTMENT'S current edition of "Administrative Requirements for Ecology Grants and Loans", contains the entire understanding between the parties, and there are no other understandings or representations except those set forth or incorporated by reference herein. By signing this agreement with Ecology, the Recipient and any subrecipients state they are in compliance with the federal requirements for Debarment and Suspension and requirements for a drug -free workplace (15 CFR Part 26) (see Special Terms and Conditions). No subsequent modification(s) or amendment(s) of this agreement shall be of any force or effect unless in writing, signed by authorized representatives of the Recipient and Department, and made a part of this agreement. IN WITNESS WHEREOF, the parties hereby execute this Grant Agreement State of Washington Department of Ecology Gordon White Date Program Manager Shorelands and Environmental Assistance Program Approved as to form only by the Assistant Attorney General Whatcom County t NR1111* Signature, Auth, Print Nr z Title Page 14 of 20 WHATCOM COUNTY: Recommended for Approval: 27 /l Frank M. Abart, Pub Worksdirector Date Approved as to form: &,,I J. Daniel L. Gibson Date Asst. Chief Civil Deputy Prosecutor Approved: Accepted for Whatcom County: By: Pete Kremen, Whatcom County Executive STATE OF WASHINGTON ) ) ss COUNTY OF WHATCOM ) On this day of , 20 _, before me personally appeared Pete Kremen, to me known to be the Executive of Whatcom County, who executed the above instrument and who acknowledged to me the act of signing and sealing thereof. CONTRACTOR/AGENCY INFORMATION: Sasha Horst Padilla Bay Estuarine Research Reserve 10441 Bayview-Edison Road Mount Vernon, WA 98273 Contact Phone: 360/428-1084 Contact Fax: 360/428-1491 Contact Email: horst(cDnwstraits.orq NOTARY PUBLIC in and for the State of Washington, residing at . My commission expires Page14A CZM Grant Agreement G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements of the Department of Ecology A. RECIPIENT PERFORMANCE All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and RECIPIENT's employees. The RECIPIENT shall not assign or subcontract performance to others unless specifically authorized in writing by the DEPARTMENT. B. SUBGRANTEE/CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement. C. THIRD PARTY BENEFICIARY The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of Washington is named as an express third -party beneficiary of such subcontracts with full rights as such. D. CONTRACTING FOR SERVICES (BIDDING) Contracts for construction, purchase of equipment and professional architectural and engineering services shall be awarded through a competitive process, if required by State law. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the DEPARTMENT. E. ASSIGNMENTS No right or claim of the RECIPIENT arising under this agreement shall be transferred or assigned by the RECIPIENT. F. COMPLIANCE WITH ALL LAWS 1. The RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders, regulations and permits. Prior to commencement of any construction, the RECIPIENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that all approvals and permits have been secured, and make copies available to the DEPARTMENT upon request. 2. Discrimination. The DEPARTMENT and the RECIPIEIT agree to be bound by all Federal and State laws, regulations, and policies against discrimination. The RECIPIENT further agrees to affirmatively support the program of the Office of Minority and Women's Business Enterprises to the maximum extent possible. The RECIPIENT shall report to the DEPARTMENT the percent of grant/loan funds available to women or minority owned businesses. 3. Wages And Job Safety. The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety. 4. Industrial Insurance. The RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the DEPARTMENT shall have the right to immediately terminate this agreement for cause as provided in Section K.1, herein. G. KICKBACKS The RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this project to give up any part of the compensation to which he/she is otherwise entitled or, receive any fee, commission or gift in return for award of a subcontract hereunder. Page 15 of 20 CZM Grant Agreement G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration H. AUDITS AND INSPECTIONS 1. The RECIPIENT shall maintain complete program and financial records relating to this agreement. Such records shall clearly indicate total receipts and expenditures by fund source and task or object. All grant/loan records shall be kept in a manner which provides an audit trail for all expenditures. All records shall be kept in a common file to facilitate audits and inspections. Engineering documentation and field inspection reports of all construction work accomplished under this agreement shall be maintained by the RECIPIENT. 2. All grant/loan records shall be open for audit or inspection by the DEPARTMENT or by any duly authorized audit representative of the State of Washington for a period of at least three years after the final grant payment/loan repayment or any dispute resolution hereunder. If any such audits identify discrepancies in the financial records, the RECIPIENT shall provide clarification and/or make adjustments accordingly. 3. All work performed under this agreement and any equipment purchased, shall be made available to the DEPARTMEIT and to any authorized state, federal or local representative for inspection at any time during the course of this agreement and for at least three years following grant/loan termination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A-133 (Audits of States, Local Governments & Non Profit Organizations), including the compliance Supplement to OMB Circular A- 133, if the RECIPIENT expends $300,000 or more in a year in Federal funds. The $300,000 threshold for each year is a cumulative total of all federal funding from all sources. The RECIPIENT must forward a copy of the audit along with the RECIPIENT'S response and the final corrective action plan to the DEPARTMENT within ninety (90) days of the date of the audit report. 1. PERFORMANCE REPORTING The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set forth in the Special Conditions. The RECIPIENT shall also report in writing to the DEPARTMENT any problems, delays or adverse conditions which will materially affect their ability to meet project objectives or time schedules. This disclosure shall be accompanied by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT to resolve the situation. Payments may be withheld if required progress reports are not submitted. Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be due within twenty (20) days following the end of the quarter being reported. J. COMPENSATION 1. Method of compensation. Payment shall normally be made on a reimbursable basis as specified in the grant agreement and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by the DEPARTMENT along with documentation of the expenses. Payments shall be made for each task/phase of the project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and certified as satisfactory by the Project Officer. I The payment request form and supportive documents must itemize all allowable costs by major elements as described in the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for Ecology Grants and Loans", part IV, published by the DEPARTMENT. A copy of this document shall be furnished to the RECIPIENT. When payment requests are approved by the DEPARTMENT, payments will be made to the mutually agreed upon designee. Payment requests shall be submitted to the DEPARTMENT and directed to the Project Officer assigned to administer this agreement. Page 16 of 20 EMA CZM Grant Agreement G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration 2. Budget deviation. Deviations in budget amounts are not allowed without written amendment(s) to this agreement. Payment requests will be disallowed when the RECIPIENT's request for reimbursement exceeds the State maximum share amount for that element, as described in the Scope of Work. 3. Period of Compensation. Payments shall only be made for action of the RECIPIENT pursuant to the grant/loan agreement and performed after the effective date and prior to the expiration date of this agreement, unless those dates are specifically modified in writing as provided herein. 4. Final Request(s) for Payment. The RECIPIENT must submit final requests for compensation within forty-five(45) days after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply may result in delayed reimbursement. 5. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten percent (10%) of each reimbursement payment as security for the RECIPIENT's performance and a financial bond. Monies withheld by the DEPARTMENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been completed if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this agreement and, as appropriate, upon completion of an audit as specified under section J.6. herein. 6. Unauthorized Expenditures. All payments to the RECIPIENT shall be subject to final audit by the DEPARTMENT and any unauthorized expenditure(s) charged to this grant/loan shall be refunded to the DEPARTMENT by the RECIPIENT. 7. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities, it shall not exceed the amount allowed under state law for state employees. 8. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work hereunder. K. TERMINATION 1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to perform any obligation required of it by this agreement, the DEPARTMENT may refuse to pay any further funds thereunder and/or terminate this agreement by giving written notice of termination. A written notice of termination shall be given at least five working days prior to the effective date of termination. In that event, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, and reports or other materials prepared by the RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become Department property and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Despite the above, the RECIPIENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by the DEPARTMENT and/or the State of Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT may withhold payments for the purpose of setoff until such time as the exact amount of damages due the DEPARTMENT from the RECIPIENT is determined. 2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and federal funds through legislative appropriation and state allotment. When this agreement crosses over state fiscal years the obligation of the DEPARTMENT is contingent upon the appropriation of funds during the next fiscal year. The failure to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above. When this agreement crosses the RECIPIENT's fiscal year, the obligation of the RECIPIENT to continue or complete the project described herein shall be contingent upon Page 17 of 20 CZM Grant Agreement G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration appropriation of funds by the RECIPIENT's governing body; Provided, however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of ALL funds paid to the RECIPIENT in accordance with Section O herein. 3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project funded herein within four months after the effective date of this agreement, or by any date mutually agreed upon in writing for commencement of work, the DEPARTMENT reserves the right to terminate this agreement. L. WAIVER Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of any provision of this agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement unless stated as such in writing by the authorized representative of the DEPARTMENT. M. PROPERTY RIGHTS 1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property, the RECIPIENT may copyright or patent the same but the DEPARTMENT retains a royalty -free, nonexclusive and irrevocable license to reproduce, publish, recover or otherwise use the material(s) or property and to authorize others to use the same for federal, state or local government purposes. Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any inventions that are developed by the RECIPIENT as provided in 35 U.S.C. 200-212. 2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of the DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3. Tangible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Ecology Grants and Loans", Part V, shall control the use and disposition of all real and personal property purchased wholly or in part with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the contrary or upon specific instructions with respect thereto in the Scope of Work. 4. Personal Property Furnished by the DEPARTMENT. When the DEPARTMEIT provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to final payment by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. 5. Acquisition Projects. The following provisions shall apply if the project covered by this agreement includes funds for the acquisition of land or facilities: a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of land/or facilities is fair and reasonable. b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this agreement. Such evidence may include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions establishing that the land is free from any impediment, lien, or claim which would impair the uses contemplated by this agreement. 6. Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time convert any equipment, property or facility acquired or developed pursuant to this agreement to uses other than those for which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other Page 18 of 20 :• CZM Grant Agreement G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration conversion or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction costs of such property. N. RECYCLED/RECYCLABLE PAPER All documents and materials published under this agreement shall be produced on recycled paper containing the highest level of post consumer and recycled content that is available. At a minimum, paper with 10 percent post consumer content and 50 percent recycled content shall be used. Whenever possible, all materials shall be published on paper that is unbleached or has not been treated with chlorine gas and/or hypochlorite. As appropriate, all materials shall be published on both sides of the paper and shall minimize the use of glossy or colored paper and other items which reduce the recyclability of the document. O. RECOVERY OF PAYMENTS TO RECIPIENT The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance of this agreement including the satisfactory completion of the project described in the Scope of Work. In the event the RECIPIENT fails, for any reason, to perform obligations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the RECIPIENT for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform. Interest shall accrue at the rate of twelve percent (12%) per annum from the time the DEPARTMENT demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of such property. P. PROJECT APPROVAL The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project Officer or other designated official to whom the RECIPIENT shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Officer or other designated official as to the extent and character of the work to be done shall govern. The RECIPIENT shall have the right to appeal decisions as provided for below. Q. DISPUTES Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is not disposed of in writing shall be decided by the Project Officer or other designated official who shall provide a written statement of decision to the RECIPIENT. The decision of the Project Officer or other designated official shall be final and conclusive unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director of the DEPARTMENT a written appeal. In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such appeals shall be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the performance of this agreement and in accordance with the decision rendered. R. CONFLICT OF INTEREST Page 19 of 20 EM CZM Grant Agreement G1200003 between the Washington State Department of Ecology and Whatcom County Project: MRC Administration No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the review, approval, or carrying out of this agreement, shall participate in any decision which affects his/her personal interest or the interest of any corporation, partnership or association in which he/she is, directly or indirectly interested; nor shall he/she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. S. INDEMNIFICATION 1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the Scope of Work. 2. To the extent that the Constitution and laws of the State of Washington permit, each party shall indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this agreement. T. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington. U. SEVERABILITY If any provision of this agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this agreement which can be given effect without the invalid provision, and to this end the provisions of this agreement are declared to be severable. V. PRECEDENCE In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) applicable Federal and State statutes and regulations; (b) Scope of Work; (c) Special Terms and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for Ecology Grants and Loans"; and (e) the General Terms and Conditions. SS-010 Rev. 05102 Page 20 of 20 WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2011-229 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator., 9 6/28/11 � W � V E [D J U L 0 5 2011 7/12/11 Fin/Council Division Head. Dept. Head: WHATCOM COUNTY COUNCIL Prosecutor., Purchasin Bud et: y� 6/28/11 Executive: TITLE OF DOCU ENT. Approval to Purchase a Manufactured Restroom Building ATTACHMENTS: Memo from Finance and Parks & Recreation SEPA review required? ( ) Yes ( x) NO Should Clerk schedule a hearing ? ( ) Yes ( x) NO SEPA review completed? ( ) Yes (x ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (if this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) The Parks & Recreation Department is requesting approval to purchase a manufactured restroom building for installation at Lily Point Marine Park using the Washington State Contract. The vendor is CXT Inc and the total purchase is $142,338.98. Funds for this purchase are coming from grants issued through the Washington State Recreation & Conservation Office, Contract #2009009001, and funds were approved in the current budget. COMMITTEE ACTION. COUNCIL ACTION: Related County Contract #: Related File Numbers: Ordinance or Resolution Number. Pease Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wa.us/council. :• WHATCOM COUNTY Parks & Recreation 3373 Mount Baker Highway Bellingham, WA 98226-9097 TO: FROM: DATE: RE: P �43HING4�t� MEMORANDUM Brad Bennett, Finance Mana Michael McFarlane, Directo June 28, 2011 Michael G. McFarlane, Director Erik Axelson, Operations Manager Recommend to Award Lily Point Pre -Manufactured Restroom to CXT, Inc. Whatcom County Parks & Recreation is recommending award of the Lily Point Marine Park Pre - Manufactured Restroom building quote totaling $142,338.98 (including 8.5% WSST) to CXT, Inc. through the Washington State purchasing agreement. Development of the Park is being funded through Aquatic Lands Enhancement Act and Washington Wildlife and Recreation grants from Washington State Recreation & Conservation Office (Contract # 200909001 approved by the Council on September 29, 2009 and amended on 2/04/2010). Prior to selecting this particular vendor, Parks evaluated the products of RomTec, Inc. and CXT, Inc. CXT was selected because they offered a superior product that offers a higher level of vandal protection, durability, and design. Additionally, CXT restrooms have a positive track record in several of our existing park facilities. In short the proposed restroom facility will provide the community a valued and appreciated park amenity for many years to come. If you need additional information, please contact me at extension 32072. WHATCOM COUNTY ADMINISTRATIVE SERVICES Whatcom County Courthouse 311 Grand Avenue, Suite 108 Bellingham, WA 98225-4083 DDesler@co.whatcom.wa.us DEWEY G. DESLER Director DATE: 28 June 2011 TO: Pete Kremen, County Executive FROM: Brad Bennett, Administrative Services Finance Manager FINANCE/ACCOUNTING SUBJECT: Approval to Purchase Restrooms for Lily Point Marine Park Whatcom County Courthouse 311 Grand Avenue, Suite 503 Bellingham, WA 98225-4038 Finance@co.whatcom.wa.us BRAD BENNETT Manager BACKGROUND The Parks & Recreation Department is requesting approval to purchase a pre - manufactured restroom building for installation at the Lily Point Marine Park using the Washington State Contract. The vendor is CXT Inc. The total purchase price is $142,338.98. Funds for this purchase come from grants issued by the Washington State Recreation & Conservation Office, contract 200909001, with funds approved in the current budget. concur with the recommendation. Administrative Services Finance Manager Approved as Recommended: County Executive Date of Council Action Administration Facilities Management Finance/Accounting Human Resources Information Technology County Residents (360) 676-6717 (360) 676-6746 (360) 676-6734 (360) 676-6802 (360) 676-7684 (360) 398-1310 Fax (360) 676-6775 Fax (360) 676-6789 Fax (360) 738-4553 Fax (360) 738-2521 Fax (360) 676-7727 TTY (,94 738-4555 WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2011-230 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: Gary Davis 6/24//2011 Fr E 0 E� V D JUL. 05 2011 WHAT CO��(I,ygCOUNTY COUNCIL 711212011 P&D Dept. Head: R.E. "Sam" Ryan %/['a yl Prosecutor: Purchasing/Budget: Executive: TITLE OF DOCUMENT. 2011 Public Participation Plan Discussion and Review ATTACHMENTS: Memo Drat Public Participation Plan SEPA review required? ( ) Yes (X ) NO Should Clerk schedule a (rearing? ( ) Yes (X) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMARYSTATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Discussion regarding the 2011 revision to Public Participation Plan for the periodic review required by the Growth Management Act (RCW 36.70A). COMMITTEE ACTION. • COUNCIL ACTION. Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on [the County's website at. www.co.whatcom.wa.us/council. 92 WHATCOM COUNTY J.E. "Sam" Ryan Director Planning & Development Services CO 5280 Northwest Drive Bellingham, WA 98226-9097 360-676-6907, TTY 800-833-63$4 360-738-2525 Fax RECEIVED JUN 2 9.2011 MEMORANDUM PETE KREMEN COUNTY EXECUTIVE TO: Whatcom County Council THROUGH: J.E. "Sam" Ryan, Director FROM: Roxanne Michael, AICP, Long Range Planning Manager Gary Davis, AICP, Senior Planne6A-0 DATE: June 24, 2011 SUBJECT: 2011 Public Participation Plan Update In 2010 Planning and Development Services drafted a Public Participation Plan outlining the public process for long range planning issues, including those having to do with the comprehensive plan changes and zoning code revisions. The Growth Management Act (RCW 36.70A.140) requires counties to "establish and broadly disseminate to the public a public participation program identifying procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans." The 2010 plan was reviewed by the Planning Commission and on May 25, 2010 the County Council; accepted the plan. PDS has drafted an updated plan for 2011. The Planning Commission has held two public hearings on the 2011 plan, on April 14, and May 25, 2011. The attached updated plan accepted by the Planning Commission incorporates changes suggested by staff, the public, and Planning Commission members. The changes shown in this draft are those made since the first PDS draft of the 2011 update. If you have any questions regarding the Public Participation Plan, please contact Gary Davis at extension 50246. Attachment: June 13, 2011 Draft 2011 Public Participation Plan 93 Whatcom County Comprehensive Plan and Development Regulation Amendments 8 June 201 1 Deleted: moy PDS Draft Eor Comtt; Council Tune 13, 2011 Deleted: Planning Commission WA Table of Contents Chapter 1. Introduction .............................................. 1-1 1.1. Public Participation Plan Format.........................................1-3 Chapter 2. The Issues ................................................. 2-1 2.1. Statutory Requirements......................................................2-1 2.2. Reconciliation Items............................................................2-3 2.3. Docketed Amendment Requests........................................2-4 2.4. Comp Plan and Development Regulation Appeals .............2-5 Chapter 3. Project Participants ................................... 3-1 3.1. The Public...........................................................................3-1 3.1.1. Interested Property Owners and Developers ...........3-1 3.1.2. Community Organizations........................................3-1 3.1.3. Other Groups and Individuals...................................3-2 3.2. Governmental/Quasi-Governmental Groups .......................3-2 3.2.1. Planning Commission..............................................3-3 3.3. The Cities............................................................................3-3 Chapter 4. Public Participation Approach .................. 4-1 4.1. Overall Approach................................................................4-1 4.2. Level1lssues.....................................................................4-1 4.2.1. Approach..................................................................4-2 4.2.2. Level 1 Projects........................................................4-2 4.3. Level2lssues.....................................................................4-3 4.3.1. Approach..................................................................4-3 4.3.2. Level 2 Projects........................................................4-3 4.4. Level 3 Issues.....................................................................4-4 4.4.1. Approach..................................................................4-4 4.4.2. Level 3 Projects........................................................4-5 Chapter5. Conclusion ................................................ 5-1 95 Chapter 1. Introduction Whatcom County has initiated a multi -year project to update its Comprehensive Plana, The Deleted: by December 2014, as required by the Washington State Growth Management Act Washin on State Growth Man rnent_Act (GMA requires the County review and revise its (GMA) comprehensive plan and development regulations periodically [RCW 36.70A.130(1)]. The GMA Deleted: is required states: "...Except as otherwise provided, a county or city shall take legislative action to reviezv and, if needed, revise its comprehensive land use plan and development regulations to ensure the plan and regulations comply zvith the requirements of this chapter..." According to RCW 36.70A.130(5), Whatcom County is required to complete its next review and update by June 30, 2016. = The update will represent the county's vision for the next twenty Deleted: December 1, 2014 years and will be donein phases between 2012 and 2016. Deleted:. The county will update the Comprehensive Plan , This Public Participation Plan (PPP) is intended to guide the County in completing the 'I Deleted: The first phase is scheduled to be comprehensive plan update and other amendments. The Plan is required by state law (RCW complete2012. with concurrent review in March 36.70A.140), which indicates: "Comprehensive plans — Ensure public participation. Each county and city that is required or chooses to plan under RCW 36.70A.040 shall establish and broadly disseminate to the public a public participation program identifiling procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments...." j Per Engrossed Substitute House bill 1478, signed by the Governor May 16, 2011. M The bolded sentence of RCW 36.70A.140 above guided the County in developing this PPP. Prior to implementation, this plan will have crossed the eyes of the public, the planning commission, and the county council. The plan will be implemented as adopted. The issues that will be considered as part of County's review and amendment of the comprehensive plan and development regulations are divergent and far-reaching. A one -size - fits -all approach to this public participation plan for all of these very different types of issues would not be effective and would do a disservice to the residents of Whatcom County. This PPP outlines the public participation approach that will be taken with each issue rather than a generic overall approach. Some issues will require a lot of public participation, while others will require a different approach for various reasons. The objective of this plan is to provide a clear process for each issue so residents can easily determine how best to be involved in the issues they care about most. There are other planning issues that require public participation that may not be mentioned in this plan, including standard map and text amendments to Title 20 Zoning. At minimum, these items will be processed as Level 1 projects. If additional public participation is required or another approach is appropriate, the Planning and Development Services Department will upgrade the item to a more vigorous approach. Please see Chapter 4 for more information about public participation approaches. Ongoing programs administered through the Planning Department, including the Agricultural program, also provide opportunities for public participation through their respective advisory committees. The Agricultural Advisory Committee and Purchase of Development Rights Oversight Committee meet regularly to assist in the administration of their programs, and may recommend additional items to be docketed for consideration in the future. These advisory committee meetings are open to the public. More information on these Agricultural programs can be found at: http://www.whatcomcounty.us/pds/planning/agricultural program.jsp. The PPP is designed to meet the following objectives: ■ Provide a roadmap for the public, outlining a clear and accessible public process for the comprehensive plan and development regulation update, • Ensure input is sought from a broad base of public participants and is elicited in a timely fashion, considered, and incorporated as appropriate into the Comprehensive Plan and Development Regulation updates, and • Make a concerted and continuous effort to ensure that elected officials and staff are fully aware of and understand community and stakeholder concerns. 97 1.1. Public Participation Plan Format To meet PPP objectives consistent with GMA goals this document: • Outlines the issues that will be considered (Chapter 2); ■ Identifies the potential project participants in the comprehensive planning process (Chapter 3), and; ■ States the approach that will be taken with each issue (Chapter 54). Chapter 2. The Issues The issues that Comprehensive Plan and development regulation amendments will address can be divided into three categories: statutory requirements, reconciliation items, and docketed requests. This section of the PPP outlines these issues, within these categories. Each issue has been assigned a number beginning first with an "S", "R" or "D" for "statutory", "reconciliation' or "docket" respectively. These numbers will carry with each issue to Chapter 4 of this document. Chapter 4 will go into greater detail on the public participation approach that the County will take on each of these issues. 2.1. Statutory Requirements The County has identified the following issues as those requiring attention during the comprehensive plan and development regulation update process in order to comply with the changes in state Growth Management law that have occurred between the last Comprehensive Plan update in 2004 and the conclusion of the 2010 state legislative session. This section also addresses amendments required by Growth Management Hearings Board orders. This list will be updated,each year with new statutory requirements, passed during the prior year, the - i Deleted: in 2012, 2013, and 2014 County must address as part of the comprehensive plan update. The following is a current list of identified statutory requirements: S-1. Transportation - The Transportation Chapter of the Whatcom County Comprehensive Plan will be updated. This update will consider provisions of the GMA and changes to the law, including the physical activity amendments (RCW 36.70A.070, SSB 5186) and the multimodal concurrency amendments (RCW 36.70A.108, 2SHB 1565). The physical activity amendments indicate that transportation element of the comprehensive plan must contain a pedestrian and bicycle component that includes identified planned improvements for pedestrian and bicycle facilities and corridors to enhance community access and promote healthy lifestyles. The multimodal concurrency amendments August 2008 specify that concurrency compliance improvements or strategies may include qualifying multimodal transportation improvements or strategies. This update will involve coordination with Cities, Washington State Department of Transportation (WSDOT), and other governmental and quasi -governmental groups, including the Whatcom Council of Governments (including the Citizens Transportation Advisory Group) and Tribal governments. S-2. Mineral Resource Lands (RCW 36.70A.131) - Review of mineral resource land designations and development regulations (see Item D-6 in section 2.3 below). S-3. Land for Facilities (RCW 36.70A.110, .115, .210, SHB 1825) - Identifying specific facilities planning requirements under the Growth Management Act. Each city and county fully planning under the Growth Management Act must identify areas sufficient to accommodate the full range of needs and uses that will accompany projected growth. S-4. Accessory Uses in Agricultural Lands (RCW 36.70A.177, SHB 2917) - SHB 2917 clarifies that any accessory use a city or county may allow on designated agricultural lands of long-term significance must not interfere with and must support continuation of the overall agricultural use of the property and neighboring properties. S-5. Family Day -Care Providers in Home (RCW 36.70A.450 Amended, SB 5952) - No county or city may enact, enforce, or maintain an ordinance, development regulation, zoning regulation, or official control, policy, or administrative practice that prohibits the use of a residential dwelling, located in an area zoned for residential or commercial use, as a family day-care provider's home facility. S-6. Housing (RCW 36.70A.070(2)) - Review and update housing inventory as part of the required Housing Element of the Comprehensive Plan. Review new provisions governing affordable housing incentive programs that may be enacted or expanded in jurisdictions planning under the GMA (RCW 36.70A.540, EHB 1464). S-7. Forest Practices (RCW 36.70A.570, SHB 1409) - Relating to the transfer of jurisdiction over conversion -related forest practices to local governments. For counties planning under the GMA, if more that 25 Class IV applications had been filed to the DNR between those dates for properties within a specific county, then that county, and the cities within it, are required to adopt forest practices approval ordinances. S-8. Critical Areas/Best Available Science (RCW 36.70A.130(1)(c)) - The GMA was amended in 1995 to include the requirement that the county include the best available science (BAS) in developing policies and development regulations to protect the functions and values of critical areas. State law requires the county to consider the critical areas ordinance and best available science as part of this update. See also EHB 1653 and SSB 6520. S-9. Population Analysis (RCW 36.70A.130(1)(c))- An analysis of the population allocated to a city or county from the most recent ten-year population forecast by State Office of Financial Management (OFM). 2-2 100 5-10. Ferndale UGA (PLN2011-00017) - Amend the Ferndale Urban Growth Area boundary and make changes to the capital facilities plan to address the Growth Management Hearings Board decision in Stalheiin et al a. K-hatcont Counw, Case No.10-2-0016c, Final Decision and Order (April 11, 2011). 2.2. Reconciliation Items The items in this section were identified to be reconciled as part of the periodic review during 2009 Urban Growth Area review and revision. R-1. Public Facility and Service Plan Consistency (Polity 2C-5): A review of public facilities and services must be completed for the unincorporated UGAs — Birch Bay, Columbia Valley, and Cherry Point — as part of the periodic review to ensure that plans are consistent with the Comprehensive Plan. The cities are expected to complete their own reviews as part of their respective growth management processes. R-2. Subarea Plan Updates (Policy 2L-2): The adopted subarea plans are of varying ages and applicability. Policy 2L-2 defines a process for revising these subarea plans. The timelines established for revision of subarea plans, however, may need to be reconsidered. Staff is currently limited and more time is needed to revise subarea plans. R-3. Bellingham Population Allocation: Bellingham has been asked to return as part of their comprehensive plan and development regulation update in 2011 with a proposal for how they would accommodate a total of approximately 116,200 people, either through infill, changes in densities within the city and UGA, or expansion (see Whatcom County Comprehensive Plan, Chapter 2, p. 2-24). R-4. Bellingham UGA Land Use (Policy 2T-12): Evaluate the feasibility of changing zoning from General Commercial to Light Impact Industrial in the Bellingham UGA in the vicinity of Interstate 5, north of the Bellingham International Airport. R-5. Agricultural Lands Mitigation, UGA Reserve: UGA Reserves in Everson, Lynden, Nooksack, and Sumas included agricultural lands. The city and county are expected to work on strategies and plans to ensure protection of at least 100,000 acres of agricultural land in Whatcom County, R-6. City UGA Implementation (Goal 2Q): The County will work with the cities to establish interlocal agreements for inter -jurisdictional planning within the UGAs. 101 2.3. Docketed Amendment Requests The items in this section were docketed amendment requests in 2011. These were items initiated for further review by the County Council under Resolution 2011-009. As with statutory requirements in the previous section, this list will be updated as new items are docketed. D-1. Birch Bay Fire Protection & Emergency Services (CMP2007-00014) - Amend the Birch Bay Community Plan and Whatcom County Comprehensive Plan regarding fire protection facilities and level of service standards. D-2. MRL Expansion - Saxon Rd. Area (PLN2009-00013) - Amend the comprehensive plan designation from Commercial Forestry to Mineral Resource Lands (MRL) and amend the zoning map to create a MRL overlay zone on approximately 280 acres in the vicinity of Saxon Rd. The underlying zoning is Commercial Forestry. D-3. Wind Energy Systems (PLN2010-00026) - Review and amend the Wind Energy System chapter of the Whatcom County Zoning Code (WCC 20.14). D4. Capital Facility Amendments (PLN2011-00003) - Review and amend provisions of the Whatcom County Comprehensive Plan relating to capital facilities. Potential amendments include adopting by reference or incorporating information from updated water, sewer, fire and school plans, and modifications related to Ordinance 2010-037, which amended the Ferndale and Birch Bay Urban Growth Areas. D-5, Title 20 Amendments (PLN2011-00004) - Review and, as needed, amend portions of the Whatcom County Zoning Code (Title 20) to ensure consistency with the Growth Management Act and the Whatcom County Comprehensive Plan, and address issues identified in the administration of the code. D-6. Periodic Update Comp Plan Chapter 8, Mineral Resources/Forestry Sections (PLN2011-00005) - Review and, as needed, revise the comprehensive plan and development regulations to ensure the plan and regulations comply with the requirements of the GMA. D-7. Periodic Update Comp Plan Chapter 9, Recreation (PLN2011-00006) - Review and, as needed, revise the comprehensive plan and development regulations to ensure the plan and regulations comply with the requirements of the GMA. D-8. Periodic Update Comp Plan Chapter 10, Design (PLN2011-00007) - Review and, as needed, revise the comprehensive plan and development regulations to ensure the plan and regulations comply with the requirements of the GMA. D-9. Concurrency Amendment (PLN2011-00008)- Remove section 20.80.212 of the Whatcom County Zoning Code, which states that no subdivision, commercial development or conditional uses shall be approved without a written finding that: 102 (1) All providers of water, sewage disposal, schools, and fire protection serving the development have issued a letter that adequate capacity exists or arrangements have been made to provide adequate services for the development. (2) No county facilities will be reduced below applicable levels of service as a result of the development. D-10. MRL Expansion - Lummi Island (PLN2011-00009) - Amend the comprehensive plan designation from Rural Forestry to Mineral Resource Lands (MRL) and amend the zoning map to expand the MRL overlay zone on approximately 27.5 acres. D-11. MRL Removal - Aldrich Rd (PLN2011-00010) - Amend the comprehensive plan designation from MRL to Rural and amend the zoning map by removing a MRL overlay zone on approximately 90 acres on Aldrich Rd near the intersection with West King Tut. D-12. Birch Bay Watershed Action Plan (PLN2011-00012) - Propose Low Impact Development (LID) criteria and an offsite buffer mitigation program. As part of the Birch Bay Watershed Action Plan, these optional tools are aimed at facilitating community supported development and improving the success of stream and wetland buffer mitigation. Changes to Title 20 will include defining criteria for LID practices, formally recognizing the LID manual, and allowing code flexibility. D-13. Drayton Harbor/Lincoln Rd. Rezone (PLN2011-00014) - Rezone approximately 492 acres south of Drayton Harbor, west of Harborview Rd., north of Lincoln Rd. and east of the Blaine City limits from Rural one dwelling/10 acres (R10) to Rural one dwelling/five acres (R5). The existing Rural Comprehensive Plan designation would not be changed. D-14. Stormwater and Land Clearing Amendments (PLN2011-00015) - Modify WCC 20.80.634, .636, and .735 related to stormwater management, vegetation retention, re - vegetation options, erosion and sediment control, etc_ in order to address the Washington State Department of Ecology's Total Maximum Daily Load (TMDL) Findings for Lake Whatcom, the future Water Quality Cleanup Plan, and the 2010-2014 Lake Whatcom Management Program Work Plan tasks. 2.4. Comprehensive Plan and Development Regulation Appeals The Whatcom County Council may continue to address appeals brought to the Growth Management Hearings Board (GMHB). Public participation for settlement activities that will result in an ordinance amending the comprehensive plan and/or development regulations will include, at a minimum: • Posting a draft proposal on the County website and, if urban growth areas are being modified, sending it to cities and anv citizen planning group for non -City UG A's at least 30 days prior to the public hearing. • Publishing notice of the hearing in the newspaper and, if urban growth areas are being modified, e-mailing notice to cities at least 10 days prior to the public hearing; and • Holding a public hearing. 103 Chapter 3. Project Participants The Public Participation Plan is designed to reach all audiences that may have an interest in the Comprehensive Plan Update process. It is also designed to reach out to other groups and individuals —those that may not yet have an interest or be inclined to participate —to encourage their awareness, understanding and involvement in the process. The PPP also promotes use of existing communication networks to encourage involvement in the Whatcom County Comprehensive Plan Update process. 3.1. The Public The general public is defined as members of the community including residents, groups, property owners, farmers, business owners and any others that might be interested in the Comprehensive Plan update process. The following sections contain a breakdown of some specific types of community groups and organizations that the County will attempt to engage in the Comprehensive Plan update process. 3.1.1. Interested Property Owners and Developers Interested property owners and developers are defined as members of the community that have an interest in growth and development regulations, especially as they relate to their private property rights. They may have an interest in developing or preserving their property. This might include farmers, real estate and development groups and other related professionals. 3.1.2. Community Organizations Community organizations are loosely defined as groups, associations, or committees that come together for a common interest or cause. This includes service groups, environmental groups, chambers of commerce, non-profit organizations, advocacy groups, community councils, neighborhood associations, local granges, social service organizations, religious organizations, August2WS 104 and others. Community organizations also include groups that are centered around non -city UGAs like the Birch Bay steering committee and others. 3.1.3. Other Groups and Individuals WAC 365-196-900(4) states that "Each county or city should try to involve a broad cross-section of the community so groups not previously involved in planning become involved." The County will continue to expand our email list when people request to be added to the list and as new groups come to the County's attention, we will work to include them as appropriate. 3.2. Governmental/Quasi-Governmental Groups Governmental and quasi -governmental groups are defined as organizations that have a connection to local government, including Whatcom Council of Governments; Whatcom County Council; City Councils; Whatcom County and individual cities' Planning Commissions; area tribes; local special purpose districts; citizen advisory committees and others. Groups typically consist of elected officials, appointed or volunteer community members, or jurisdictional staff. Table 2.1 below shows a selected group of advisory' committees that may be asked to comment on portions of amendments required to update the comprehensive plan. It will be important to ensure continued coordination with these groups throughout the entire Comprehensive Plan Update process. Table 2.1: Selected Whatcom County Advisory Boards/Committees and Commissions Agricultural Advisory Committee Parks and Recreation Committee Bicycle/Pedestrian Advisory Committee Portage Bay Shellfish Protection District Advisory Committee Birch Bay Shellfish Protection District Advisory Committee Public Health Advisory Board Birch Bay Watershed and Aquatic Resources Management Advisory Committee Purchase of Development Rights Oversight Committee Development Standards Technical Advisory Committee Rural Library Board Drayton Harbor Shellfish Protection District Advisory Committee Surface Mining Advisory Committeez Flood Control Zone District Advisory Committee Whatcom County Community Network Flood Control Sub -Zone District Advisory Committee Whatcom County Housing Advisory Committee Lake Management District #1 Whatcom Council of Governments: Community Transportation Advisory Group Marine Resource Committee WRIA 1 - Joint Management Team P This advisory committee has been inactive. The committee will need additional appointments to form a complete committee before they will be able to actively engage in any projects in this program. 105 3.2.1. Planning Commission Recently, the Washington State Department of Commerce issued revisions to the Washington Administrative Code (WAC). Implementation of the GMA as it relates to public participation is covered within WAC 365-196-600 "Public Participation." WAC 365-196-600(3)(c) states: "The public participation program should clearly describe the role of the planning commission, ensuring consistency with requirements of chapter 36.70, 35.63, or 35A.63 RCW." For purposes of this process, the Planning Commission will be more involved throughout each of the projects within the larger process. The Planning Commission is an appointed group of citizens that work directly with Planning and Development Services to craft legislation and make recommendations to the County Council. They also hear and make recommendations on applications for amendments to the Whatcom County Code and the Comprehensive Plan from private individuals, agencies and other applicants. Currently, the Planning Commission hears from the public primarily during public hearings and through written correspondence. It is the goal that most town hall meetings, open houses and other public participation activities will occur with some involvement with the Planning Commission. In this way, the Planning Commission will hear straight from the public on each issue and will be more involved in crafting policies, earlier in the process. The public is encouraged to communicate with planning commissioners through the email and mailing address listed in Chapter 5 of this document in addition to attending planning commission meetings. 3.3. The Cities Whatcom County will continue to engage with the Cities on issues that need to be reconciled as part of the periodic review_ For example, the County will work with the cities on crafting new interlocal agreements to formalize discussions during the UGA review and revision. The Cities will be conducting their own periodic reviews as required by state law and any public participation regarding issues associated with their planning area will be an effort of each city. 106 Chapter 4. Public Participation Approach 4.1. Overall Approach The Washington state Administrative Code (WAC) provides guidelines and rules for public involvement in comprehensive planning. WAC 365-196-600 "Public Participation' states that "The public participation program should clearly describe the role of the planning commission, ensuring consistency with requirements of chapter 36.70, 35.63, or 35A.63 RCW." Through this public participation program the planning commission will act as a central hub for many public participation activities. In this way, the planning commission will have maximum exposure to the public perspective no matter how complex or minute the issue. Starting in section 4Z issues are broken down into 3 types for the purposes of public participation. Each type of issue has a different approach and the approach is described in each section. All the issues retain the numbers assigned to them in Chapter 2, so if more information is needed about an issue, the reader may refer back to Chapter 2. 4.2. Level I Issues Level 1 issues are generally less complicated, have already been through extensive public process or are quasi-judicial actions3. This level is also appropriate for most standard map and text amendments to Title 20 Zoning. A more aggressive public participation approach may be assigned at the discretion of the Planning and Development Services Department. 3 Quasi-judicial actions of local decision -making bodies are those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding (RCW 42.36.010). These require adjudication in a court -like process. in which theguidelines for public participation are different from other actions. .1 Deleted: 3 i August2009 107 4.2.1. Approach Level 1 issues will travel through the process with the public process required by the code. Typically, they will follow this process: 1) Proposal: Staff generates a proposal or a recommendation on an application. 2) Proposal posted: Proposal is posted to the website and announced through email list. Legal notice will be given as required and applicable. Public may make comment to the Planning _ Deleted: appropriate Commission via email and/or US mail. 3) Public hearing: Planning Commission holds public hearing on issue. 4) Work session and recommendation: Planning Commission conducts work session on issue and recommends action to the County Council. Public may make comment to the County Council via email and/or US mail. 5) County Council: County Council will review the recommendation of the Planning Commission and hold a work session in committee. The Council will approve the recommendation, modify, or deny. If the Planning Commission recommendation is substantively modified, another hearing will be held on that modification and then the Council will act. 4.2.2. Level 1 Projects S-3. Land for Facilities (RCW 36.70A.110, .115, .210, SHB 1825) S-5. Family Day -Care Providers in Home (RCW 36.70A.450 Amended, SB 5952) S-7. Forest Practices (RCW 36.70A_570, SHB 1409) 5-1.0. Ferndale UGA (PLN2011-00017) R-1. Public Facility and Service Plan Consistency (Policy 2C-5) R-6. City UGA Implementation (Goal 2Q) D-2. MRL Expansion - Saxon Rd. Area (PLN2009-00013) Note: This item is quasi-judicial. D-3. Wind Energy Systems (PLN2010-00026) D-4. Capital Facility Amendments (PLN2011-00003) D-5. Title 20 Amendments (PLN2011-00004) D-8. Periodic Update Chapter 10, Design (PLN2011-00007) D-10. MRL Expansion, Lummi Island (PLN2011-00009) Note: This item is quasi-judicial. D-11. MRL Removal, Aldrich Rd (PLN2011-00010) Note: This item is quasi-judicial. D-13. Drayton Harbor/Lincoln Rd. Rezone (PLN2011-00014) Ki 4.3. Level 2Issues Level 2 issues require a little more than the code -required public process. The issues in this category are of a sensitive or political nature and/or the public has come out to oppose or support them in the past. They are generally more complicated. 4.3.1. Approach Typically, level 2 issues will follow this process: 1) Alternatives: Staff generates alternative approaches to the issue, when 4pplicable. Deleted: appropriate i 2) Alternatives posted: Alternatives are posted to the website and announced through email list. 3) Advisory Committee/Agency/City Review and Comment: The alternatives will be submitted to the appropriate advisory committee, department, city or agency for review and comment. 4) Proposal: Staff generates a proposal considering any feedback received on the alternatives. 5) Proposal posted: Proposal is posted to the website and announced through email list and legal notice as required and applicable. Public may make comment to the Planning Deleted: appropriate Commission via email and/or US mail. 6) Public hearing: Planning Commission holds public hearing on issue. 7) Work session: Planning Commission conducts work session on issue and recommends action to the County Council. Public may make comment to the County Council via email and/or US mail. 8) County Council: County Council will review the recommendation of the Planning Commission and hold a work session in committee. The Council will approve the recommendation, modify, or deny. If the Planning Commission recommendation is substantively modified, another hearing will be held on that modification and then the Council will act. 4.3.2. Level 2 Projects S-1. Transportation (RCW 36.70A.070 and RCW 36.70A.108) S-2. Mineral Resource Lands (RCW 36.70A.131) S-6. Housing (RCW 36.70A.070(2)) and (RCW 36.70A.540, EHB 1464) S-9. Population Analysis (RCW 36.70A.130(1)(c)) . R-5. Agricultural Lands Mitigation, UGA Reserve: Coordination with Everson, Lynden, Nooksack, and Sumas, and the Agricultural Advisory Committee 109 D-1. Birch Bay Fire Protection & Emergency Services (CMP2007-00014) D-6. Periodic Update Chapter 8, Mineral Resources/Forestry Sections (PLN2011-00005) D-7. Periodic Update Chapter 9, Recreation (PLN2011-00006) D-9. Concurrency Amendment (PLN2011-00008) 4.4. Level 3Issues These issues are generally more complicated and are of interest to the general public. All of these issues will have many opportunities for public comment, including a town -hall style meeting where they are able to openly share their feelings on the alternatives proposed or just the issue in general_ When appropriate, town hall meetings will be planned close to areas that will be or are being impacted by the issue. 4.4.1. Approach Typically, level 3 issues will follow this process: 1) Alternatives: Staff generates alternative approaches to the issue, when appropriate. 2) Alternatives posted: Alternatives are posted to the website and announced through email list. 3) Advisory Committee Review/Agency Comment: The alternatives will be submitted to the appropriate advisory committee, department, city or agency for review and comment. 4) Town hall meeting: A town hall style meeting is held to seek public input on the issue and the proposed alternatives. When appropriate, the meeting is held in a location that is reasonably located near an area affected by the issue. Planning Commission may be in attendance at this town hall meeting. Announcements of town hall meetings will be done through the website, email list, media releases, and local postings as appropriate. 5) Proposal: Staff generates a proposal with consideration for the feedback heard at the town hall meeting. 6) Proposal posted: Proposal is posted to the website and announced through email list. Legal notice will be given as required and as appropriate. Public may make comment to the Planning Commission via email and/or US mail. 7) Public hearing: Planning Commission holds public hearing on issue. 8) Work session: Planning Commission conducts work session on issue and recommends action to the County Council. Public may make comment to the County Council via email and/or US mail. 9) County Council: County Council will review the recommendation of the Planning Commission and hold a work session in committee. The Council will approve the 110 recommendation, modify, or deny. If the Planning Commission recommendation is substantively modified, another hearing will be held on that modification and then the Council will act. 4.4.2. Level 3 Projects S4. Accessory Uses in Agricultural Lands (RCW 36.70A.177, SHB 2917). Agriculture Advisory Committee. S-8. Critical Areas/Best Available Science (RCW 36.70A.130(1)(c)). A review committee will be reactivated for this effort. However, many of the existing advisory committees will make recommendations including as applicable, the Agriculture Advisory Committee, Lake Whatcom Watershed Advisory Committee, Shellfish and Marine advisory committees and others who are impacted by Best Available Science. R-2. Subarea Plan Updates (Policy 2L-2). Activate subarea/community plan groups, if appropriate and in consideration of work plan priorities. R-3. Bellingham Population Allocation: Coordination with the City of Bellingham. R-4. Bellingham UGA Land Use (Policy 2T-12): Coordination with the City of Bellingham. D-12. Birch Bay Watershed Action Plan (PLN2011-00012). D-14. Stormwater and Land Clearing Amendments (PLN2011-00015). Coordination with the Department of Ecology. 111 Chapter 5. Conclusion This public participation plan was initially crafted at the beginning of the comprehensive planning process. It is a living document that should be updated as conditions change or new methods are discovered. This public participation plan meets the requirements of the RCW and the recently revised requirements of the WAC. Specifically, the Planning and Development Services Department hopes that this public participation program will "involve a broad cross- section of the community, so groups not previously involved in planning become involved" as WAC 365-196-600(4) suggests it should. To provide written feedback on this public participation plan, please contact Planning and Development Services at rboxx©co.whatcom.wa.us. If you wish to provide comment on any issue to the Planning Commission or County Council, please utilize the following addresses: Whatcom County Planning and Development Services 5280 Northwest Drive Bellingham, WA 98226 Planning Commission County Council c/o Becky Boxx, coordinator 311 Grand Ave, Ste 105 5280 Northwest Drive Bellingham, WA 98225 Bellingham, WA 98226 council©co.whatcom.wa.us PDS-Planning_Conunission@co.whatcom.wa.us 112 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2011-223 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: Alex Cleanthous (� —1 ^ ((`v" 61,21 Council Introduction Division Head. Wain Harrisonw 7112 Planning and Development W E D JUN 14 2011 Committee Dept. Head. Sam Ryan` L 7112 Council Prosecutor: Royce Buckingham �'HATCO�I COUNTY Purchasing/Budget: Brad Bennelt COUNCIL Executive: Pete Kremen / l/ (, TITLE OF DOCUMENT: Wind Energy Systems ATTACHMENTS: (1) Memo (2) Staff Report (3) Ordinance to amend WCC 20.14 SEPA review required? ( x ) Yes ( ) NO Should Clerk schedule a hearing? ( ) Yes (x) NO SEPA review completed? ( x ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If 1/1is item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Amendments to Whatcom County Code 20.14 Wind Energy Systems. The proposal allows for a range of Wind Energy System (WES) sizes with regulations pertaining to setbacks, appearance, sound levels and measurement, abandonment and complaint issues. COMMITTEEACTION: COUNCIL ACTION. 6/21/2011: Introduced Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing andprinting on the County's website at: www.co.whatcom.wa.us/council. 1APlanning Division\Long Range Planning\PLN-CP-Code Amendments\2010\PLN-2010 Files\PLN2010-00026\Council\pin2010-00026-agendabill-20100607.docx 113 WHATCOM COUNTY �GpM co Planning & Development Services �rP `y� 5280 Northwest Drive, Bellingham, WA 98226-9097 0 360-676-6907, TTY 800-833-6384 'SHN�t° 360-738-2525 Fax MEMORANDUM TO: Whatcom County Council Members THROUGH: Sam Ryan, Director T, FROM: Wain Harrison, Long Range Planning Supervisor lG� Alex Cleanthous, Planner ;q DATE: June 9, 2011 SUBJECT: Wind Energy Systems J.E. "Sam" Ryan Director Whatcom County Planning and Development Services along with the Planning Commission have been working on updating WCC 20.14 Wind Energy Systems in response to the moratorium on Wind Energy Systems with a rated output greater than 500kw. Attached to this memo is a staff report outlining the process and updates that planning staff and the planning commission has worked on, as well as an ordinance for the Whatcom County Council to review. Office (360) 676-6907 County (360) 380-8110 FAX (360) 738-2525 114 SPONSORED BY: PROPOSED BY: INTRODUCTION DATE: ORDINANCE NO. AMENDING WCC TITLE 20.14, WIND ENERGY SYSTEMS WHEREAS, ORD2008-043 adopted development regulations for Wind Energy Systems in unincorporated Whatcom County. WHEREAS, The Whatcom County Council adopted emergency ordinance 2010-015 prohibiting the application for wind energy systems greater than 500 kw and the application for multiple wind energy systems with a cumulative rated output greater than 100 kw. WHEREAS, ORD2010-018 established a moratorium on wind energy systems greater than 500 kw and the application for multiple wind energy systems with a cumulative rated output greater than 100 kw. WHEREAS, In accordance with RCW 36.70A.106 Whatcom County Planning and Development Services notified the Department of Commerce of proposed amendments to WCC 20.14 on Nov 3, 2010. WHEREAS, The Whatcom County SEPA official issued a Determination of Nonsignificance (DNS) on April 13, 2011. WHEREAS, the Planning Commission held a public hearing on May 26, 2011 and voted 6-1 for a recommendation of approval for the proposed amendments to WCC 20.14, Wind Energy Systems. FINDINGS OF FACT AND REASONS FOR ACTION 1. The Whatcom County Council in response to the moratorium organized a Wind Energy Work Group. The work group was comprised of citizens, renewable energy professionals, Whatcom County staff and elected officials. 2. The Wind Energy Work Group met twice, May 4 and 14, 2010. 3. The Wind Energy Work Group discussed issues such as setbacks, noise, shadow flicker and siting of windmills near residential development. 4. The results of the Wind Energy Work Group were two proposed ordinances, one from Councilmember Brenner and one from Council member Mann. The Whatcom County Council was unable to reach consensus on an ordinance and requested the Whatcom Planning Commission to review the proposals and make a recommendation. 1 115 5. The Whatcom County Planning Commission held work sessions on and a public hearing on the results of the Wind Energy Work group on November 18, 2010, and December 9, 2010 respectively. 6. At the December 9, 2010 hearing the Planning Commission was unable to find consensus between Councilmember Brenner and Mann's proposals. The Planning Commission requested that staff begin to re-evaluate the current ordinance and make improvements based on concerns raised by the public and discussion at the Planning Commission work session and public hearing. 7. Planning staff held twoz:more work sessions on updating WCC 20.14. Those work sessions were held on January 13 and March 24, 2011. 8. Citizens and Planning Commissioners identified the following as issues to be addressed during the work sessions; permitting and zoning, setback requirements, pre and post monitoring of sound, height limitations, blade throw, shadow flicker, animal habitat impacts, and decommissioning. 9. The Whatcom County Planning Commission held public hearings on proposed changes to WCC 20.14 on April 28 and May 26, 2011. 10. A legal notice for the May 26, 2011 Whatcom County Planning Commission public hearing was publishing on May 15, 2011 11. The Whatcom County Planning Commission at the May 26, 2011 public hearing voted 6-1 to recommend approval to the Whatcom County Council on amendments to Whatcom County Code 20.14. CONCLUSION The proposal meets all of the legal requirements as noted within the Findings of Fact and Reasons for Action. The proposed amendment is compatible with the Growth Management Act, Whatcom County Comprehensive Plan Goals and Policies, along with policies within Whatcom County's County Wide Planning Policies. Approval of this amendment is in the public interest. 2 116 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that: Section 1. The Official Whatcom County Zoning Ordinance (Title 20) is hereby amended as shown in Exhibit A. ADOPTED this day of 12011. WHATCOM COUNTY COUNCIL ATTEST: WHATCOM COUNTY, WASHINGTON Dana Brown -Davis, Council Clerk Sam Crawford, Chairperson APPROVED as to form:,, Civil Deputy Prosecutor ( ) Approved ( ) Denied Pete Kremen, Executive Date: 3 117 Chapter 20.14 Wind Energy Systems Sections 20.14.010 Purpose 20.14.020 Definitions 20.14.030 Applicability 20.14.040 Regulatory Framework 20.14.050 General Requirements 20.14.060 Sound Levels -and Measurement 20.14.070 Safety 20.14.080 Sound measurement protocol for assessment of proposed and existing wind energy systems with a cumulative rated output over 100 kw 20.14.090 Complaint Process 20.14.100 Abandonment, insurance, and decommissioning for WES 20.14.110 Federal, State and Local Requirements 20.14.010 PURPOSE The purpose of the Ordinance is to facilitate the installation and construction of wind energy systems in Whatcom County for private landowners, subiect to reasonable restrictions. 20.14.020 DEFINITIONS As used in this Ordinance, the following terms shall have the meanings indicated: County shall mean Whatcom County government. 1. County shall mean the Whatcom County government. 2. Decibel — A unit of measure of sound pressure. 3. dB(A) — A -weighted sound pressure scale. 4. dB(C) — C-weighted sound pressure scale. 5. FAA shall mean the Federal Aviation Administration. 6. Flicker or Shadow Flicker — The moving shadow cast by the rotating blades of a WES, or any intermittent, repetitive, or rhythmic lighting effect that is a direct result of rotating WES blades. 7. Flicker Analysis — A study showing the duration and location of flicker potential. 8. Hub Height — The distance from the ground to the center axis if the rotor. 118 9. Qualified Independent Acoustical Consultant —A private, third -party individual with full membership in the Institute of Noise Control Engineers (INCE), or other demonstrated acoustical engineering certification. 10. MET Tower or "Meteorological tower" - a structure designed to support the gathering of wind energy resource data, and includes the tower, base plate, anchors, guy cables and hardware, anemometers (wind speed indicators), wind direction vanes, booms to hold equipment anemometers and vanes, data logger, instrument wiring, and any telemetry devices that are used to monitor or transmit wind speed and wind flow characteristics over a period of time for either instantaneous wind information or to characterize the wind resource at a given location. 11. Rotor — A system of airfoils, usually but not limited to a blade with a flat or curved surface, designed to provide a desired reaction force relative to the movement of the surrounding air. The rotor is connected to a hub that rotates around an axis. 12. Small Wind Energy System (SWES) - A wind energy conversion system, with a rated output up to and including 50 kW, consisting of: wind turbine, tower, base and associated control or conversion electronics, as well as all anchors, guy cables and hardware. 13. Total Height — The distance measured from the grade plane (WCC 20.97.162) to the tip of the SWES/WES rotor blade extended to its highest point. The support tower structure may be freestanding, guyed, or a monopole. 14. Tower Height - The distance measured from the grade plane (WCC 20.97.162) to the hub height of the wind turbine. This structure may be freestanding, guyed, or a monopole. 15. Upwind Turbine Design — A WES that has rotors and towers aligned such that the wind encounters the rotors before the tower. The tower will always be downwind of the rotors. 16. Wind Turbine - The parts of the wind system including the blades, generator and tail. 17. Wind Energy System (WES) - A general reference for a wind energy conversion system, consisting of. wind turbine, tower, base and associated control or conversion electronics, as well as all anchors, guy cables and hardware. For purposes of this ordinance, WES also represents systems with a rated output of 51 kW or greater. 20.14.030 APPLICABILITY 1. The requirements set forth in this Ordinance shall govern the siting of wind energy systems used to generate mechanical or electrical energy to perform work, and which may be connected to the utility grid pursuant to the Revised Code of Washington, Chapter 80.60, Net Metering of Electricity, serve as an independent source of energy, or serve as part of a hybrid system. The requirements of this Ordinance shall apply to all Small Wind Energy Systems (SWES) and Wind Energy Systems (WES) proposed after the effective date of this Ordinance. Any SWES/WES for which a required permit has been properly issued prior to the effective date of this Ordinance shall not be required to meet the requirements of this Ordinance; provided, however, that any such pre-existing SWESIWES that is not producing energy for a continuous period of twelve (12) months shall meet the requirements of this Ordinance prior to recommencing production of energy. No 119 modification that increases the height of the system or significantly increases its output shall be allowed without full compliance with this Ordinance. 20.14.040 REGULATORY FRAMEWORK .041 PERMITS AND ZONING System Type Repaired Permit Zones MET Tower Outright permitted All — for up to 24 months One SWES Outright permitted All WES with a rated.output of Administrative permit AG, CF, HII 51 kW up to and including 100 kW Multiple SWES per parcel Administrative permit AG, CF, RF, HII, LII with a cumulative rated output of includingand nd up to 50 kW. WES greater than 100 kW Conditional Use Permit AG, CF , RF, HII Multiple WES per parcel with Conditional Use Pennit3 AG, CF, RF, HII a cumulative rated output above 50 kW 1 —WES and MET towers are required to be in compliance with but not limited to Whatcom County Code Title 15 Buildings and Construction and acquire the necessary building permit. 2 — Administrative Permit WCC 20.84.235 3 - Conditional Use Permit WCC 20.84.200 .042 PRINCIPAL OR ACCESSORY USE A SWES/WES may be considered either as a principal or accessory use. A different existing use or an existing structure on the same lot shall not preclude the installation of a SWES/WES or a part of such facility on such lot. Any SWES/WES that is constructed and installed in accordance with the provisions of this Ordinance shall not be deemed to constitute the expansion of a nonconforming use or structure. 20.14.050 GENERAL REQUIREMENTS FOR SWES AND WES .051 VISUAL APPEARANCE; LIGHTING; POWER LINES 1) Wind Turbines shall be painted a non -reflective, non -obtrusive color such as the manufacturer's default color option or a color that conforms to the environment and architecture of the community, unless FAA standards require otherwise. The zoning administrator may require a photo of a S WES/WES, of the same model as that proposed in the landowner's application, adiacent to a buildine or some other obiect illustratina scale (e.e.. manufacturer's photo). 2) At SWES/WES sites, the design of the buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend the SWES/WES to the natural setting and the existing environment. 120 3) No SWES/WES shall be artificially lighted, except to the extent required by the FAA or other applicable authority. 4) No SWES/WES shall be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the wind turbine. 5) Electrical controls, control wiring and power lines shall be wireless or underground, except where SWES/WES wiring is brought together for connection to the transmission or distribution network adjacent to that network.. 6) The road access to the proposed site must be rated to carry an axle load sufficient to bear the weight of all materials, vehicles, and equipment delivered to the site. 7) The compatibility of the foundation, tower, and generating unit (including rotor and rotor - related equipment) shall be certified in writing by a professional engineer licensed in Washington State. The engineer shall certify compliance with established engineering practices and compliance with all applicable adopted codes and regulations. For all SWES/WES, the manufacturer's engineer or another qualified engineer shall certify that the turbine, foundation and tower design of the SWES/WES are compatible and within accepted professional standards, given local design criteria per Whatcom County Code, Chapter 15. 8) The electrical system design shall be certified in writing by an electrical engineer licensed in Washington State unless waived by the Building Official. All SWES/WES electricalsystems shall comply with requirements per the Washington State Department of Labor and Industries and the current adopted edition of the National Electrical Code when and where applicable. 9) All SWES/WES shall meet requirements per the applicable sections of WCC 20.80.634, 20.80.635, and 20.80.636 for erosion control and stormwater management. 10) Violation of any part of this chapter of the code (WCC 20.14) shall be subject to the provisions of WCC 15.04.050. .052 SETBACK REQUIREMENTS The following setback requirements shall apply to all SWES/WES and MET Towers. All setbacks are measured from the property lines of the property on which the project is located: 1) Setbacks table System Size Setback Requirement 50 kW or less 1.2 times total height, to a maximum of total height plus 20 feeti 51 to 500 kW 4 times total height.' Greater than 500 kW 4 times total height.' 1. A reduction in setbacks may be approved if appropriate easements from neighboring property owners aie approved and recorded against the applicable deed(s), or if acceptable mitigation is approved by either the Zoning Administrator, or Hearing Examiner. 121 3) Communication and electrical lines: Each SWES/WES shall be set back from the nearest above -ground public or private non -participating utility a distance no less than 1.2 times its Tower Height, up to a maximum of Tower Height plus 20 feet, determined from the existing power line or telephone line. 4) Setbacks shall be measured to the outer edge of the base of the S WES/WES structure towers. Guy cables and other accessory support structures may be located within setback areas. .053 HEIGHT LIMITATIONS 1) The total height of a WES shall not exceed 500 feet, or the maximum allowed by zoning, whichever is greater: MET Towers cannot exceed a maximum height of 100 feet except in the Agricultural, Rural Forestry and Commercial Forestry zones. 2) SWES/WES with a total height taller than 100 feet must obtain an Administrative Permit, except within the AG, CF and RF zones. a). All SWES/WES with a total height greater than 100 feet must provide in writing that the height requested is the minimum height necessary for the SWES/WES to operate efficiently, and provide approved justification for the proposed height and analysis according to recognized industry standards.. 20.14.060 SOUND LEVELS AND MEASUREMENT .061 SWES Sound levels, performance, and measurement standards 1. Audible sound is not to exceed 20 dB(a) above ambient background noise or a maximum of 55 dB(a) at any point beyond the project property line. Detectable infrasound or C-weighted sound pressure is not to exceed 20 dB(c). .062 WES with a cumulative output greater than 51 kW sound level, performance, and measurement standards 1. Audible sound is to not exceed 10 dB(a) above ambient background noise or a maximum of 45 dB(a) at any point beyond the project property line. Detectable infrasound or C-weighted sound pressure is not to exceed 20 dB(c). .063 Upwind design shall be used on all WES greater than 51 kW, unless it can be demonstrated that no detectable infrasound or C-weighted sound pressure is generated above 20 dB(c) and A -weighted sound pressure standard can be met. 20.14.070 SAFETY .071 General Provisions for SWES/WES 1. Wind Turbine towers shall not provide step bolts or a ladder readily accessible to the public and shall be a minimum height of 10 feet above ground level. 2. All electrical equipment shall be safely and appropriately enclosed from unintentional access by means such as barrier fencing, equipment cabinetry or similar. All access doors to Wind Turbine towers and electrical equipment shall remain locked until access is necessary. 122 3. Appropriate warning si triage (e.g., electrical hazards) shall be placed on Wind Turbine towers, electrical equipment, and SWES/WES. 4. Any SWES/WES found to be unsafe by the building official shall be repaired by the landowner and/or project owner to meet federal, state and local safety standards, according to the regulatory authority of the Building_ Official and applicable provisions per WCC Chapter 15. .072 Blade Tip Height 1. The blade tip of any SWES with a cumulative rated output of 50 kW or under shall, at its lowest point, have ground clearance of no less than twenty 20) feet, as measured at the lowest point of the arc of the blades. 2. WES with a cumulative rated output of 51 kW or over shall, at its lowest point, have ground clearance of no less than thirty (36) feet, as measured at the lowest point of the arc of the blades. .073 Overspeed Controls All SWES/WES shall be equipped with overspeed controls to limit rotation of blades to speed below the designed limits of the system. No changes or alterations from the certified design shall be permitted unless accompanied by a licensed professional engineer's statement of certification .074 Ice Throw for WES 1. A report from a Washington professional engineer that: calculates the maximum distance that ice from the turbine blades could be thrown (the basis of the calculation and all assumptions must be disclosed), and b) the incidence of reported ice throws and the conditions reported at the time of the ice throw. .075 Blade Throw Calculations for WES LA report from a Washington professional engineer that: a) calculates the maximum distance that pieces of the turbine blades could be thrown (the basis of the calculation and all assumptions must be disclosed). .076 Flicker Analysis for WES 1. A flicker analysis is required for all WES. The analysis shall include the duration and location of flicker potential for all buildings and for roadways within a one (1) mile radius of each turbine within a project. The applicant shall provide a site map identifying the locations of shadow flicker that may be caused by the project and the expected durations of the flicker 123 at these locations from sun -rise to sun -set over the course of a year. The analysis shall account for topography but not for obstacles such as accessory structures and trees. Flicker at any building shall not exceed thirty(30) hours per year within the analysis area. Flicker in excess of the limits established in this ordinance shall be grounds for the County or his/her designee to order operational adjustments, which may include mitigation measures requiring cessation of operation during periods when flicker effects any building, for all non compliant WES. .077 Wildlife Protection for WES Prior to permit approval provide documentation from a qualified professional wildlife biologist (WCC Section 16.16, Article 8, Definitions) verifying the following_ 1. Endangered or Threatened Species: Development and operation of a WES shall not have a significant adverse impact on endangered or threatened fish, wildlife, plant species, their critical habitats, or other significant habitats identified in the Whatcom County Comprehensive Plan and/or other current studies or plans relevant to the region and recognized by the County. 2. Migratory Birds: The project development and/or operation plan shall be designed to prevent WES from having a significant adverse impact on migratory bird species. 20.14.080 Sound measurement protocol for assessment of proposed and existing wind energy systems with a cumulative rated output over 51 W. The characteristics of the WES project and the features of the surrounding environment will influence the design of the sound study. Site layout, types of system selected and the existence of the significant local sound and vibration sources and sensitive locations should be taken into consideration when designing a sound study. 10 124 A Qualified Independent Acoustical Consultant (or other qualified consultant approved by Whatcom County Planning and Development Services) shall conduct this sound study. WES Pre -Construction "Existing Ambient/Background Sound Study" shall include the following: 1. Measurements must be taken with qualified acoustical testing instruments meeting ANSI Type 1 standards, and Class 1 filters. 2. The windscreen recommended by the instrument's manufacturer must be used and measurements conducted ohly when wind speeds are ten (10) miles per hour (mph) or less. 3. Except those properties zoned CF or HII, measurements must be taken on all proper -ties along the property boundary of the proposed WES project and at the four closest existing buildings located generally North, South, East, and West and within 2,500 feet of a proposed WES. 4. All measurement points for existing buildings must be located in consultation with the property owner(s) and such that no significant obstruction (building, trees, etc.) blocks sound and vibration from the WES site. Measurements must be taken at 5 feet above the ground and at least 15 feet from any reflective surface. 5. For each measurement point and for each measurement period, provide each of the following to the Whatcom County Planning and Development Services: a. Sound Power Levels (La eL.L1oLL o, and L90) for each unweighted octave band (16, 32, 63, 125, 250, 500, 1K, 2K, 4K, and 8K Hz) i. Sound Power Levels (Lave`1o, L50, and L90) for dB(A) and dB(C) b. A narrative description of any intermittent sounds registered during each measurement c. Wind speed at time of measurement d. Wind direction at time of measurement e. Description of the weather conditions during the measurement 6. Duration of measurement periods shall be a minimum of thirty continuous minutes at each location. 7. Sound level measurements must be made on a weekday of a non -holiday week. 8. One set of measurements shall be taken at each measurement point during each of the following two periods: a. Daytime: (gam — 6pm) b. Nighttime: (9pm-6am) 9. Provide a map and/or diagram clearly showing: 11 125 a. The layout of the project area, including topography, the project boundary lines, and property lines b. The locations of the Measurement points c. The minimum and maximum distance between any Measurement point d. -rhe location of significant local sound and vibration sources e. The distance between all Measurement point and significant local sound and vibration sources .081 WES Post -construction "Existing Ambient/Background Sound Study": Within twelve months of the date when the project is full} operational, and within two weeks of the anniversary of the pre -construction background sound measurements, a Qualified Independent Acoustical Consultant shall repeat the sound measurements for each measurement point. Post -construction sound level measurements shall be taken with all WES running. If significant changes to ambient/background sound power levels have occurred, then, at the discretion of the consultant, a second round of measurements may be taken with WES turned off. Compare and report post -construction measurements to the Whatcom County Planning and Development Services (available for public review) using the same format as used for the pre - construction sound study. The project owner is responsible for funding this study. 20.14.090 Complaint process: If two or more complaints from different households are received with 2 weeks of each other, and documented at a particular site, a sound measurement will be conducted within 10 business days byqualified consultant approved by Whatcom County_ The costs of the measurements shall be the responsibility of the WES owner/operator. The operator shall reimburse the County for the expense within ten (10) days of billing_ Measurements shall be conducted where the complaints were documented. If an evaluation shows that the WES is operating outside of its permitted sound performance standards, the operator will have 30 daysjust its systems or terminate operations. To avoid frivolous complaints, any household that registers a complaint against a WES that is proven to be in compliance shall be responsible for the costs of any future complaints originating from the same household unless the WES project has expanded and/or proven to be in violation of the sound performance standards. At the discretion of Whatcom County PDS, if it appears residents are abusing the complaint process, complaints may be compiled for three (3) months at a time and then a sound study conducted at all of the locations. No WES project shall be required to conduct more than two (2) sound measurements at any one adjacent property per year unless the WES project has expanded.and/or proven to be in violation of the sound performance standards. 12 126 Complaints from properties located farther than 1 mile from a WES project do not trigger the complaint process. 20.14.100 Abandonment, insurance, and decommissioning for WES .101 Abandonment: Absent notice of a proposed date of decommissioning WES project shall be considered abandoned when the project fails to operate for more than one year without the written approval of the Director or designee. The Director or designee shall determine in its decision what proportion of the project is inoperable for the project to be considered abandoned and shall notify the property owner. Within one hundred and twenty (120) days of receipt of Notice of Abandonment or within one hundred and twenty (120) days of providing Notice of Termination of Operations to the County, the owner of a wind energy system must comply with the removal requirements in Sect- on 20.14.102 below. If the property owner/project owner fails to remove the WES in accordance with the requirements of this section within one hundred and twenty (120) days of Notice of Abandonment, the County shall have the authority to enter the property and physically remove the WES. Financial Surety funds shall be used to pay for removal and restoration. .102 Removal requirements: When the WES is scheduled to be decommissioned, the project owner/property owner shall notify the County by certified mail of the proposed date of discontinued operations and plans for removal. Within one hundred and twenty (120) days of receipt of Notice of Abandonment or within one hundred and twenty (120) days of providing Notice of Termination of Operations, the owner of a wind energy ystem must: 1) Remove all wind turbines, aboveground improvements, and outdoor storage. 2) Remove all hazardous material from the property and dispose of the hazardous material in accordance with federal, state and local law. 3) In addition to removing the wind turbine generator, the owner shall restore the site by planting native or other approved vegetation to minimize erosion. 03 Insurance: Proof of continuous liability insurance shall be submitted to Whatcom County indicating coverage for potential damages or injury to landowners, occupants, or other third parties. For WES with a rated output of 51 kW up to and including 500 kW the required insurance is two million dollars ($2,000,000.00) aggregate and one million dollars ($1,000,000.00) per occurrence. For WES with a rated output greater than 500 kW the required insurance is three million dollars ($3,000,000.00) aggregate and one million dollars ($1,000,000.00) per occurrence. Whatcom County shall be named on the liability policy as additional insured. The insurance carrier shall be instructed to notify all applicable governmental authorities of any delinquency in payment of premiums. The liability policy shal l be endorsed to notify the County of any cancellation thirty_(30) days in advance. Failure to provide such insurances shall be considered abandonment and full and sufficient grounds for termination of the permit and disposal of the equipment and appurtenances as stated herein. .104 Financial surety: 13 127 As a condition of WES permit approval, the applicant shall be required to provide a form of surety (i.e., post a bond, or establish an escrow account or other means) at the amount of 150% of the estimated full cost of project decommissioning, naming Whatcom County as the beneficiary, with fifty percent (50%) due prior to final project approval, twenty-five percent (25%) due within twelve (12) months of the date of final project approval, and twenty-five percent (25%) due within twenty-four (24) months of the date of final project approval, to cover costs of WES removal in the event the County must remove the facility. Nothing may prevent the Counly from seeking reimbursement from the WES project owner. The project owner is responsible to the County for any costs related to decommissioning that exceed the amount of financial surety. As part of the Decommissioning Plan, the Applicant shall submit a fully inclusive estimate of the costs associated with removal, prepared byqualified professional. The decommissioning plan shall provide that the decommissioning funds shall be reevaluated every five years from the date of substantial completion of the WES to ensure sufficient funds for decommissioningand, upon mutual agreement by the Applicant and the County at that time, the amount of decommissioning funds shall be adjusted accordingly. Prior to permit issuance, the Applicant shall provide the County with a copy of the Financial Surety device or another approved mechanism. .105 Decommissioning plan: As part of the permit approval process, a decommissioning plan shall outline the anticipated means and cost of removing WES at the end of their serviceable life or upon becoming a discontinued use. The cost estimates shall be made by a competent party; such as a Professional Engineer, a licensed contractor capable of decommissioning or a person, firm, partnerships corporation or other entity with suitable expertise or experience with decommissioning, as determined by the Building Official or designee. The plan shall also identify Financial Suret�to pay for the decommissioning and removal of the WES and accessory facilities. The plan shall also address road maintenance during and after the decommissioning_ 20.14.110 FEDERAL, STATE AND LOCAL REQUIREMENTS 1) SWES/WES shall comply with all current adopted Whatcom County Codes & Ordinances, including but not limited to Whatcom County Code, Title 15, Title 16, and Title 23. 2) SWES/WES must comply with regulations of the Federal Aviation Administration (FAA), along with requirements within WCC 20.80.675 "Height Limitations Surrounding Airports". a) If necessary n applicant may be required to submit the following information for analysis of airspace obstructions in relation to WCC 20.80.675: Mean Sea Level (MSL) of adjacent airports, (MSL) of proposed site, Euclidean distance from adjacent airports to proposed site, total elevation of (WES) and structure. 3) All SWES/WES electrical systems shall comply with requirements per the Washington State Department of Labor & Industries and the current adopted edition of the National Electrical Code (NEC) when and where applicable. 4) All SWES/WES with the intention to tie to their respective utilijy provider's grid system , 14 128 shall meet the requirements of Chapter 80.60 of the Revised Code of Washington, Net Metering of Electricity. WMW ENERGY GY SYSTEMS ■ ■_■ — — ■ ■�■ Met ■�� MIMMI Nil ■ 15 129 •. _. „ M -------- ME 9--im— MR Boa !ISO PI nrTImrm • a��t.tatRsrsrn Administrative ncr,�iif2 I Rural, AG, GF=, R #u Administrative per_ miiih' I AR R 130 If��iiL'iA: e 1 rs�•izsts�ss:�:�!r��errfreT�s�!�e�Esr-r. :� >underground, W-her-e WES 'Ailing is brought together- for- eofmeetian to the tFansfnission or distfibution netw adjacei# to that network-. exoep IN 17 131 FATAIM ri rssr�rss■ �s:&�.tA ars!�rf ssMom SM Mm • ..• F,m am r. N67rs�1:74f 18 132 Lam [vials VA a .. -. WIN �iNwill. 19 133 134 WHATCOM COUNTY �GOM co J.E. "Sam" Ryan Planning & Development Services 3aP `tip Director 5280 Northwest Drive, Bellingham, WA 98226-9097 ; o� 360-676-6907, TTY 800-833-6384 9SHINGt 360-738-2525 Fax WHATCOM COUNTY PLANNING & DEVELOPMENT SERVICES STAFF REPORT I. OVERVIEW File #: PLN2010-00026 File Name: Wind Energy Systems, WCC 20.14 Submittal: Planning Commission Recommendations Requested Action: The requested action was for the Planning Commission to review two proposed ordinances from Whatcom County Council -members Barbara Brenner and Ken Mann. The final action request was for the Planning Commission to recommend one set of revisions to WCC 20.14. Reason for the Request. On February 23, 2010, the Whatcom County Council adopted an emergency ordinance, per ORD2010-015, imposing a moratorium on the acceptance of new applications for Wind Energy Systems (WES) greater than 500 kilowatts, or multiple WES per parcel with a cumulative rated output above 100 kilowatts. On April 13, 2010, the Council adopted a six-month ordinance (ORD2010-018) to extend the moratorium. On October 12, 2010, Council adopted another six-month ordinance (ORD2010-0436) to further extend the moratorium. Backe round Ordinance 2008-043, adopted October 21, 2008, established development regulations for installation of a range of sizes and scales of Wind Energy Systems. The ordinance was a collaborative effort between the Executive's office Conservation Resource Analyst, Planning staff, and local wind energy professionals. Whatcom County Council's ORD2010-018 put a moratorium in place on the acceptance of applications for WES greater than 50OKW or multiple WES per parcel with a cumulative rate output above 100 KW. The Whatcom County Council organized a Wind Energy Workgroup comprised of citizens, wind and renewable energy professionals, County staff and elected officials. The group met twice and discussed issues surrounding wind energy in 135 Whatcom County and considered what development regulations and standards should be required for system installations. The end result of the work group was that two ordinances were introduced for consideration. However, the Work Group was unable to reach consensus. Councilmember Brenner and Mann then both proposed their respective ordinances to the Whatcom County Council who were also unable to reach a consensus. The Whatcom County Council then requested the Planning Commission review the proposals and make recommendations back to the Council for a single ordinance proposal. To date, the Planning Commission has conducted: 1. An introductory work session, 11/18/10. Staff introduced two separate ordinances submitted for consideration and comparison, one from Councilmem.ber Brenner and one from Councilmember Mann. 2. A public hearing and work session, 12/9/10. At the work session following the public hearing the Planning Commission requested that staff make recommendations and attempt to -consolidate both ordinances into one ordinance for consideration, taking into account information, discussion and public input from the work sessions and public hearing. 3. An additional work session, 1/13/11. Staff submitted a single ordinance for consideration. 4. A work session, 3/24/11. The Planning Commission made numerous substantive change recommendations to the ordinance proposal under consideration from staff. S. A public hearing/work session, 4/28/11. Following the scheduled public hearing, the Planning Commission conducted a work session and approved numerous additional and substantive change recommendations. 6. A public hearing, 5/26/11. Following the public hearing the ordinance proposal, as amended, 4/28/11, was approved by majority vote of the Planning Commission to be forwarded to Council for consideration. II. ANALYSIS OF THE PROPOSED AMENDMENT Pursuant to Whatcom County Code [WCC 20.90.051(2)(a)], the County has evaluated the proposed amendment for consistency with the following criteria: GMA Goals Environment- Protect the environment and enhance the state's high quality of life, including air and water quality and the availability of water. Comprehensive Plan Goals and Policies Utilities Chapter Goals & Policies: Goal SH: Support cost-effective renewable energy projects and implement policies that promote renewable energy projects. 2 136 Policy 5H-1: Review and revise existing and proposed regulations for consistency with renewable energy and the other goals in this chapter. Policy 5H-2: Encourage and support the development of renewable energy projects and technologies. Utilities Chapter Action Plan: 10. Adopt ordinances enabling and facilitating alternative sources of energy. III. SUMMARY AND ANALYSIS OF RECOMMENDATIONS APPROVED BY THE PLANNING COMMISSION ➢ 20.14.020, DEFINITIONS • A definition was added for Rotor (#11) to facilitate changes in how WES are measured. • The definition for SWES (#12) was amended to include systems with a rated output up to and including 50 kW, down from a previous rated output of 100 kW. • A definition was added for Total Height (#13). A significant recommendation by the PC involved changing the height measurement of a WES from hub height to total height, measured from grade plane to the tip of the rotor extended to its highest point. • The definition of WES (#14) was amended for ordinance consistency to include systems with a rate output of 51 kW or greater. ➢ 20.14.041, PERMITS AND ZONING • WES with a rated output of 51 kW up to and including 100 kW are recommended to require an Administrative permit. Rural, Rural Forestry, and Light Impact Industrial zones were removed with Agriculture, Commercial Forestry and Heavy Impact Industrial zones remaining permitted. This category was requested by Commissioner Rainey primarily for farm use consideration and approved by majority vote. • Multiple SWES per parcel with a cumulative rated output up to and including 50 kW was amended for consistency. • WES greater than 100 kW require a Conditional Use permit (CUP). • Multiple WES per parcel with a cumulative rated output above 50 kW require a CUP. ➢ 20.14.052, SETBACK REQUIREMENTS • Item #1 of the original ordinance has been removed from the section. The setback table becomes Item #1. • Item #1, Setback table, is recommended for amendment as follows: 1.) A system size of 50 kW or less requires a setback from property line of 1.2 times total height to a max of total height plus 20 feet. 2.) 51 kW to 500 kW requires 4 times total height, no maximum. 3.) Greater than 500 kW requires 4 times total height, no maximum: ➢ 20.14.056, HEIGHT LIMITATIONS • Item #1 is amended to the total height of a WES shall not exceed 500 feet. 3 137 • Item #2 is amended to the total height of a SWES taller than 100 feet requires an ADM permit. ➢ 20.14.060, SOUND LEVELS AND MEASUREMENTS • Subsection .061, Item #1, was amended to include a maximum of 55 dB(a) above ambient background noise and a provision of detectable infrasound or C-weighted sound pressure not to exceed 20 dB(a). • Subsection .062, Item #1, was amended to include a maximum of 45 dB(a) above ambient background noise and a provision of detectable infrasound or C-weighted sound pressure not to exceed 20 dB(a). • Subsection .063, was amended to greater than 50 kW for consistency. ➢ 20.14.070, SAFETY • Item #4 was amended to add project owner; include the Building Official as the regulatory authority; and to include applicable provision of WCC Chapter 15, which is the code adopting ordinance. ➢ 20.14.072, Blade Tip Height • This subsection was expanded to include Items #1, #2. • Item #1 was amended to SWES with a cumulative rated output of 50 kW or under (for consistency) shall have a ground clearance of no less than 20 feet. • Item #2 was amended to WES with a cumulative rated output of 51 kW or over shall have a ground clearance of no less than 30 feet. ➢ 20.14.074, Ice Throw for WES • This is a new subsection with standards for ice throw protection. ➢ 20.14.075, Blade Throw Calculations for WES • This is a new subsection with standards for blade throw protection. ➢ 20.14.076, Flicker Analysis for WES • This is a new subsection with standards for protection from shadow flicker generated by moving system components. ➢ 20.14.077, Wildlife Protection for WES • This is a new subsection with standards for protection of wildlife, including code reference for a definition of qualified biologists. ➢ 20.14.080, Sound measurement protocol for assessment of proposed and existing wind energy systems with a cumulative rated output over 51 kW. • This is a new subsection with extensive standards for sound measurement of WES. ➢ 20.14.081, WES Post -construction "Existing Ambient / Background Sound Study" • This is a new subsection with additional standards for a post -construction sound study for WES. ➢ 20.14.090, Complaint process • This is a new subsection with standards, procedures and limitations for filing complaints for WES. ➢ 20.14.100, Abandonment • This is a new subsection with standards and procedures to address abandoned projects and establish removal requirements, project insurance requirements, financial surety requirements, and decommissioning requirements for WES. 4 138 IV. SUMMARY AND STAFF COMMENTS An extensive amount of credit and recognition must go to the Planning Commission for the incredible amount of work that went into the recommendations presented to Council, as documented by the numerous work sessions and public hearings which occurred over a six-month period. What exists between the lines of that work session/public hearing record is a prodigious amount of perseverance, research, discussion and debate. Although many aspects of the ordinance recommendations were thoroughly discussed, much. if not most of the debate between staff and Planning Commission and, indeed, between the public, centered around the issue of setbacks. This has been perhaps the most contentious issue and had much to do with the inability of the Work Group, Council Committees and Council to reach consensus prior to the Planning Commission's involvement. Staff is still of the opinion that, given the mitigation of other standards in the proposed ordinance, including extensive noise testing and operational standards, shadow flicker, ice throw and blade throw standards, all of which are directly or indirectly linked to setback standards, the Planning Commission recommendations are possibly too restrictive. Without specific examples or analysis to point to, it still seems safe to assume that the more restrictive standards for the higher capacity systems tend to favor larger, more capitalized companies over the smaller investor/entrepreneur. Nevertheless, the Planning Commission recommendations represent what staff otherwise supports as an acceptable compromise and significant increase in protections to adjacent property owners. The Planning Commission is to be recognized and commended for what it has accomplished regarding the issues related to this ordinance and moratorium, which have remained open, under debate and unresolved for approximately the last year and a half. See attached maps The first two maps provided show an approximate representation of the setback recommendations in place following the 3/24/11 work session. The third map represents the Planning Commission recommendation: • The first map represents possible properties available for systems with a rated output of 51 kW up to 100 kW at 3 times tower height to a maximum setback from property lines of 1000 feet. • The second map represents possible properties available for systems with a rated output of 100 kW or greater at 4 times tower height to a max setback from property lines of 1320 feet. • The third map represents possible properties available for systems with a rated output of 51 kW or greater at 4 times tower height with no maximum limit. 5 139 LJw=a LOi i�Q d 0 c 391 RAP" lwmw Ell Ohri .4 WON ! o2ka"", -. WIN oi ma. •�F��F.ri.��\ * �'ICLi�IiR,�''e4i S17!^ I ■ i�_� ,'� � ■rwni `� �`�1 yu NAM D (0) c L)y,as ewe Lbw _cap WHATCOM COUNTY COUNCIL AGENDA BILL No. AB20 1 1-0 1 s CLEARANCES Initial Date Date Received in Council Office A enda Date Assigned to: 7/12/11 Council Committee Originator: �� 6/1/11 of the Whole Wendy Wefer-Clinton (Executive Session) (E E E� V E 0 Division Head 6/1/11 Karen S. Coens J U L O 5 2011 Dept. Head: WHATCONI COUNTY Prosecutor: COUNCIL Purchasing/Budget: Executive: l� l / 7 TITLE OF DOCUMENT: ATTACHMENTS: SEPA review required? ( ) Yes ( X ) NO Should Clerk schedule a hearing? ( ) Yes ( X ) NO SEPA review completed? ( ) Yes (X ) NO Requested Date: SUMMARY STA TEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Strategy planning discussion and positions to be taken regarding collective bargaining. (per RCW 42.30.140(4)(a)) COMMITTEE ACTION.• COUNCIL ACTION: Related County Contract #: Related File Numbers: Ordinance or Resolution Number: rPlease Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/council. 143 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 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Whatcom County Council Special Surface Water Work Session June 14, 2011 CALL TO ORDER Council Chair Sam Crawford called the meeting to order at 10:35 a.m. in the Whatcom County Civic Center Annex, Garden Room, 322 N. Commercial, Bellingham, Washington. ROLL CALL Present: Barbara Brenner, Sam Crawford, Bill Knutzen, Ken Mann and Tony Larson Absent: Kathy Kershner and Carl Weimer SURFACE WATER WORK SESSION (AB2011-024) 1. CONSIDER FLOOD CONTROL ZONE DISTRICT (FCZD) PROJECT REVIEW SUBCOMMITTEE RECOMMENDATIONS FOR 2011 SMALL PROJECTS Jon Hutchings, Public Works Department, referenced the operational definition for the cost -share program in the cost -share ordinance regarding repair and maintenance of damaged levees (on file). Every year, the flood control zone district solicits projects from various people and organizations, and then reviews and recommends projects to the Board of Supervisors. Paula Cooper, Public Works Department, submitted and read from handouts and a presentation (on file). She described the process for reviewing and ranking each project and described the status of each project in the presentation. Crawford asked and there was discussion of: • The project review subcommittee membership. • The negative effects of a deflection berm. • How trees and vegetation enhance or detract from levee slope stabilization. Mann asked and there was discussion of: • The clay bank at the Deming levee. • The possibility of cutting a new channel at the Dozer Corner project. • Whether work done on the Hovander Park levee a year ago was done so poorly that it failed. Brenner asked and there was discussion of: • The vegetation on and around the Deming levee. • Whether there are any residences in the area of the Dozer Hole and Dozer Corner project. Surface Water Work Session, 6/14/2011, Page 1 144 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. • Whether they should create agreements in perpetuity when working with private landowners. Knutzen asked and there was discussion of: • Concerns from the Mt. Baker School District about raising the Deming levee. • Whether they would establish meander limits in the Code to help with situations like the Dozer Corner. • A secondary levee a private citizen installed near the Abbott Road levee. • Whether the property at Kamm Creek and the Nooksack River is in the floodway. There was discussion about the issue of allowing multiple uses, such as trails, on levees in parks. Cooper stated the advisory committee ranked the projects in the following order: 1. Bertrand 2. Harksell 3. Kamm 4. Jones riprap 5. Scott Ditch 6. Dozer Hole 7. Jones dredge Hutchings stated not all projects will go forward in 2011. The vegetation management projects received lower scores and ranks. They must develop a structure for ranking the vegetation management projects. 2. REVIEW AND AFFIRM FCZD 2011/2012 BUDGET PRIORITIES AND WORK PROGRAM Jon Hutchings, Public Works Department, submitted and described the flood control zone district 2011 work program review (on file). They've had to reallocate staff in 2011 due to staff shortages and changes. Cooper described the staff assignment changes in the handout. These changes have not yet gone to the advisory committee. The highlighted items have significant fulltime equivalent (FTE) employee changes. She described the highlighted changes. There was discussion about uncertain and subjective federal oversight of levee vegetation management. Knutzen asked and there was discussion of whether the re -vegetation program includes any mitigation of longer term issues regarding re -vegetation. Mann asked and there was discussion of the new membership of the Flood Control Zone District Advisory Committee. Brenner asked and there was discussion about the effect to the County of the proposed changes to the Clean Water Act. Surface Water Work Session, 6/14/2011, Page 2 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Crawford asked and there was discussion of scheduling another flood tour. Combine a trip to the proposed South Fork Park with the Parks Department Director. Mann asked and there was discussion of the benefits of participating in the national flood insurance program. ADJOURN The meeting adjourned at 11:54 p.m. The Council approved these minutes on , 2011. ATTEST: WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dana Brown -Davis, Council Clerk Jill Nixon, Minutes Transcription Sam Crawford, Council Chair Surface Water Work Session, 6/14/2011, Page 3 146 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. WHATCOM COUNTY COUNCIL Committee Of The Whole June 21, 2011 CALL TO ORDER Council Chair Sam Crawford called the meeting to order at 6:00 p.m. in the Council Conference Room, 311 Grand Avenue, Bellingham, Washington. ROLL CALL Present: Barbara Brenner, Sam Crawford, Kathy Kershner, Bill Knutzen, Ken Mann, Tony Larson and Carl Weimer Absent: None 1. DISCUSSION WITH ASSISTANT CHIEF DEPUTY PROSECUTOR DANIEL GIBSON REGARDING FERRY ISSUES - AB2011-018 Crawford stated that discussion of agenda item one may take place in executive session pursuant to RCW42.30.110 (1)(i). Executive session will conclude no later than 7:00 p.m. If the meeting extends beyond the stated conclusion time, he will step out of the meeting to make a public announcement. Knutzen moved to go into executive session until no later than 7:00 p.m. to discuss the agenda item, pursuant to the RCW citation as announced by the Council Chair. The motion carried by the following vote: Ayes: Brenner, Crawford, Kershner, Knutzen, Mann, Larson and Weimer (7) Nays: None (0) OTHER BUSINESS ADJOURN The meeting adjourned at 6:30 p.m. The Council approved these minutes on , 2011. ATTEST: WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dana Brown -Davis, Council Clerk Jill Nixon, Minutes Transcription Sam Crawford, Council Chair Committee of the Whole, 6/21/2011, Page 1 147 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 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. WHATCOM COUNTY COUNCIL Regular County Council June 21, 2011 CALL TO ORDER Council Chair Sam Crawford called the meeting to order at 7:00 p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. ROLL CALL Present: Barbara Brenner, Sam Crawford, Mann, Tony Larson and Carl Weimer Absent: None FLAG SALUTE ANNOUNCEMENTS Kathy Kershner, Bill Knutzen, Ken Crawford announced that attorney Sandy Mackie presented a regulatory update on shorelines, critical areas, and growth management in Whatcom County (AB2011-186) during the Special Committee of the Whole. Crawford also announced there was discussion with Assistant Chief Deputy Prosecutor Daniel Gibson regarding ferry issues (AB2011-018) in executive session during the Committee of the Whole meeting. The next County Council meeting is in three weeks. He expects a tentative Lummi Island Ferry lease agreement will be introduced in three weeks. SPECIAL PRESENTATION 1. COUNCIL TO RECEIVE A FORMAL INVITATION TO THE COAST SALISH/CANOE JOURNEY DAY TO BE HELD AT BOULEVARD PARK ON JULY 9, 2011 - AB2011-017 Beth Brownville described the history of the Canoe Journey. The Lummi Tribe is being recognized as the first inhabitants of the area lands and waters. Cara Black invited the County Council to attend the event. 2. COUNTY EXECUTIVE KREMEN WILL PRESENT COMMENDATION TO JOE RUTAN, COUNTY ENGINEER / ASSISTANT PUBLIC WORKS DIRECTOR, ON HIS RECENT WSACE URBAN ENGINEER OF THE YEAR AWARD - AB2011-017 Whatcom County Council, 6/21/2011, Page 1 i• 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Pete Kremen, County Executive, recognized Joe Rutan, County Road Engineer, who received the County Engineer of the Year award from his peers. Also, District Court Administrator Bruce Van Glubt was awarded the 2011 Excellence in Probation Award by the Washington State Misdemeanant Corrections Association, the professional association for probation officers and directors in the state of Washington. Finally, Remy McConnell, who is Kurt Christensen's assistant, received the International Association of Administrative Professionals (IAAP) Member of the Year award for the Washington/Alaska Division. MINUTES CONSENT Brenner moved to approve Minutes Consent items one through four. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 1. COMMITTEE OF THE WHOLE FOR MAY 24, 2011 2. REGULAR COUNTY COUNCIL FOR MAY 24, 2011 3. SPECIAL COMMITTEE OF THE WHOLE FOR JUNE 7, 2011 4. REGULAR COUNTY COUNCIL FOR JUNE 7, 2011 OPEN SESSION (Clerk's Note: The first speaker requested that his/her testimony not be included in the minutes. The speaker's testimony is available on the meeting's audio recording.) Leonard Lindstrom spoke on the issue of teachers. Bruce Diele spoke on the issue of mail theft. PUBLIC HEARINGS 1. ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO THE PUBLIC UTILITY DISTRICT NO. 1 OF WHATCOM COUNTY FOR THE PROVISION OF ELECTRICITY SERVICES - AB2010-327 (7:24:09 PM) Crawford opened the public hearing, and the following people spoke: Steve ]ilk, Public Utility District (PUD) #1 Representative, stated he thank Prosecutor Dan Gibson and Engineer Joe Rutan for their work during the last several months on this ordinance. It should be noted that the PUD currently operates an electrical transmission system, serving Conoco -Phillips at Cherry Point. The franchise with the County for both electric and water has expired. In renewing the franchise, they agreed to split the combined water utility and electric utility, to move this forward quicker. This is a change from the last franchise. It would cover the entire county. Whatcom County Council, 6/21/2011, Page 2 149 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 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Hearing no one else, Crawford closed the public hearing. (7:28:17 PM) Knutzen moved to adopt the ordinance. Brenner asked how the PUD competes with the private sector. Jilk stated they don't generally compete. The PUD electrical service was established in 1953. They have not expanded since then. They are expanding now to take advantage of opportunities with Puget Sound Energy (PSE). The PUD buys all power from the Bonneville Power Administration. They are working with larger companies to possibly serve them. This is not an attempt to take services from PSE in the rest of the county. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 2. RESOLUTION AUTHORIZING THE SALE OF WHATCOM COUNTY SURPLUS PROPERTY PURSUANT TO WCC 1.10 - AB2011-199A (7:31:26 PM) Crawford opened the public hearing and, hearing no one, closed the public hearing. Mann moved to approve the resolution. Brenner stated some of these vehicles aren't old and don't have many miles on them. She is against surplusing some of the items. The County should be more careful when surplusing these things. The motion carried by the following vote: Ayes: Larson, Crawford, Weimer, Knutzen, Mann and Kershner (6) Nays: Brenner (1) CONSENT AGENDA (7:32:57 PM) Mann reported for the Finance and Administrative Services Committee and moved to approve Consent Agenda items one through six. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 1. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONSULTANT AGREEMENT BETWEEN WHATCOM COUNTY AND WATERSHED SCIENCE & ENGINEERING FOR PREPARATION OF A SEDIMENT TRANSPORT ANALYSIS IN THE VICINITY OF THE MOSQUITO LAKE ROAD CANYON CREEK BRIDGE NO. 334 IN THE AMOUNT OF $29,700 - AB2011-216 Whatcom County Council, 6/21/2011, Page 3 150 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. 2. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND THE ARC OF WHATCOM COUNTY TO PROVIDE COMMUNITY INFORMATION, EDUCATION AND FAMILY SUPPORT SERVICES TO INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES, THEIR FAMILIES/CAREGIVERS, AND THE PUBLIC IN THE AMOUNT OF $54,188 - AB2011-217 3. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY AND COMMODITY CREDIT CORPORATION TO REMOVE FARMS NO LONGER INTERESTED IN PDR PROGRAM TRANSACTIONS, AND DE -OBLIGATE THE ASSOCIATED $592,933 FOR USE AS MATCHING FUNDS FOR PURCHASE OF DEVELOPMENT RIGHTS EASEMENT ACQUISITIONS - AB2011-218 4. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A STANDARD SOFTWARE MAINTENANCE AGREEMENT BETWEEN WHATCOM COUNTY AND NEW WORLD SYSTEMS FOR THE AEGIS PUBLIC SAFETY INTERFACE SOFTWARE IN THE AMOUNT OF $33,954 - AB2011-219 S. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A LAND LICENSE AGREEMENT BETWEEN WHATCOM COUNTY AND KIM DENEND OF MOON VALLEY NATURAL PRODUCTS, LLC TO ACCESS PARK LAND ON SOUTH BAY DRIVE TO USE AS A STAGING/HOLDING AREA FOR BEE BOXES IN THE AMOUNT OF $100 - AB2011-220 6. RESOLUTION AMENDING CRP NO. 909006 AND APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND LOW BIDDER, P & P EXCAVATING, LLC FOR EMERALD LAKE WAY SLIDE REPAIR IN THE AMOUNT OF $265,699.09 - AB2011-221 OTHER ITEMS 1. REQUEST COUNCIL APPROVAL OF LILY POINT MARINE PARK DEVELOPMENT PLAN (PROJECT FUNDED BY GRANTS AWARDED TO WHATCOM COUNTY FROM THE WASHINGTON STATE RECREATION AND CONSERVATION OFFICE) - AB2011-214 (7:33:38 PM) Weimer reported for the Natural Resources Committee and stated this item was held until the next committee meeting. 2. ORDINANCE AMENDING THE 2011 WHATCOM COUNTY BUDGET, SIXTH REQUEST, IN THE AMOUNT OF $216,582 - AB2011-207 (7:34:12 PM) Mann reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. Whatcom County Council, 6/21/2011, Page 4 151 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 3. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO AN INTERLOCAL AGREEMENT BETWEEN WHATCOM COUNTY AND THE WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT AND SUBZONES FOR DISTRICT OPERATIONS AND ADMINISTRATION - AB2011-151 (7:35:00 PM) (Clerk's Note: Council acting as the Whatcom County Flood Control Zone District Board of Supervisors and the County Council.) Mann reported for the Finance and Administrative Services Committee and moved for the County Council to approve the substitute version, beginning on Council packet page 41. He moved to amend the substitute version to keep the existing language regarding designated staff in all eight applicable instances in sections 3.6, 3.7. 3.9, and 3.10. In the third reference in section 3.6, also remove the word "shall." The motion to amend carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) Crawford moved to amend the substitute version, section 2.2.2, "The District or a subzone shall pay the County...." He doesn't know why they wouldn't expect the districts to reimburse for staff time in most cases. Larson stated that if the motion were approved, none of the advisory committee recommendations are accepted, and this document would be the same as the original document. An advisory committee member said this language reflects the reality on the ground. He will support the proposed language. The motion to amend failed by the following vote: Ayes: Crawford, Weimer and Mann (3) Nays: Knutzen, Brenner, Larson and Kershner (4) The motion for the Council to approve the substitute as amended carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) Mann moved that the Whatcom County Flood Control Zone District Board of Supervisors approve the substitute version as amended. The motion for the Board of Supervisors to approve the substitute as amended carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) (7: 43:16 PM) Whatcom County Council, 6/21/2011, Page 5 152 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Mann reported that the Finance and Administrative Services Committee had a discussion Regarding a Proposal to Amend the Whatcom County Charter to Create a Salary Commission (AB2011-224) when Jack Hovenier brought forward a request to amend the Charter to create a salary commission. He moved to direct Council staff to draft and legal counsel to review an ordinance the Council can introduce on July 12 and schedule a hearing on July 26. Brenner stated the Council can't set its own salary. It sets the salary of future councils. Also, she wants a commission to have the authority to decrease salaries, not just raise them. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) (7:48:25 PM) Kershner asked to reconsider the request for approval for the County Executive to award bid #11-34 to the low bidder, Faber Brothers Construction, for the construction of the Olsen Trailhead parking lot in the amount of $93,498.38 (AB2011-203). She moved to approve the request and award the bid. This project was in the capital facilities plan. The Council approved the project when it approved the budget in November. Parks staff have put 350 hours into this project. Tax dollars should go to projects the Council will eventually approve, not projects that are shut down at the last moment. Make those decisions earlier in the process, before time and money are spent on projects. Brenner stated a $100,000 parking lot for a trailhead isn't necessary. It's past time for the Council to start prioritizing what the County needs. At some point, the Council has to say no regardless of where in the process the project is at. Don't vote for this project. Larson stated he is against the request. The Council has a responsibility to look at every line item that comes up, and decide if it makes sense at this point. They are in a different situation than they were a few years ago when these projects came through. As part of this, the Council will review the capital facilities plan and prioritize the projects. Knutzen stated he didn't vote for this project in the budget or the capital facilities plan. That's why they have elections. The Council can change. He will not vote for this tonight. He agrees with Councilmember Brenner. At a time when families have lost their jobs and are struggling to feed themselves, the County must distinguish between needs and wa nts. Mann stated the Council is scheduling a review of the project list at the next meeting. He is willing to wait until then to change his vote. For now, past money spent isn't a good reason to continue to spend money on the project. He hopes the hours spent on the project will still be valid in the future when the County has money for the project. Kershner stated these are tax dollars collected from the tax payers. It's not a bank account the County gets to build. Tax payers expect the County to use taxes on services Whatcom County Council, 6/21/2011, Page 6 153 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. they can use and enjoy. This is not an issue of the County not being able to afford this project. The funds are coming from the real estate excise tax (REET) II funds. They can't use REET funds to feed people who have lost their jobs. Most of the councilmembers voted to approve an unbalanced general fund budget in November. She asked how they are going to return the taxpayers' money if the County doesn't spend this money. The money shouldn't be sitting in a bank account at the County level. Brenner stated the REET II funds allows other uses that are necessary, such as for stormwater facilities. Use the money for what the County is mandated to do. That money will not sit in an account. It will be spent on mandated uses. The motion failed by the following vote: Ayes: Crawford, Weimer and Kershner (3) Nays: Larson, Brenner, Knutzen and Mann (4) 4. RESOLUTION APPROVING THE DEVELOPMENT AGREEMENT BETWEEN WHATCOM COUNTY AND HARBOR SHORES, LLC - AB2010-446 (7:57:07 PM) Knutzen reported for the Planning And Development Committee and moved to approve the resolution. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 5. ORDINANCE REPEALING WHATCOM COUNTY CODE 9.20, CURFEW - AB2011- 197 (7:57:48 PM) Larson moved to adopt the ordinance. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 6. ORDINANCE REPEALING ORDINANCE 2011-002, WHICH IMPOSED AN INTERIM MORATORIUM ON THE ACCEPTANCE OF NEW APPLICATIONS FOR SUBDIVISIONS AND SHORT SUBDIVISIONS IN RURAL AREAS - AB2011-209 (8: 00:28 PM) Crawford stated the moratorium was in effect while the Council worked on the rural element, which has been done. This is the follow up to repeal that moratorium on areas that have been rezoned. Kershner asked if the County had one or two moratoria. Karen Frakes, Prosecutor's Office, stated there were two moratoria. The first moratorium has already expired. Brenner stated this has nothing to do with the Lake Whatcom watershed moratorium. Whatcom County Council, 6/21/2011, Page 7 154 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 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. (Clerk's Note: There was no motion to adopt the motion. Councilmember Crawford called for a vote to approve.) The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) Crawford stated it was his intent to move adoption of the ordinance before the vote. 7. REQUEST CONFIRMATION OF THE COUNTY EXECUTIVE'S APPOINTMENT OF FREDERICK HASLAM TO THE WHATCOM COUNTY LIBRARY SYSTEM BOARD - AB2011-222 (8:02:45 PM) Mann moved to confirm the appointment. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) INTRODUCTION ITEMS Brenner moved to accept Introduction Items one through three, including the substitute version of item three. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 1. RECEIPT OF AN APPEAL OF THE HEARING EXAMINER'S DECISION ON LSS2009-0002, BERTRAND CREEK ESTATES PRELIMINARY APPROVAL FOR A LONG SUBDIVISION, FILED BY BARBARA DYKES, SALISH LAW, ON BEHALF OF JOHN AND KAREN STEENSMA, ET AL. - AB2011-211 2. ORDINANCE AMENDING WHATCOM COUNTY CODE 20.14 WIND ENERGY SYSTEMS - AB2011-223 3. ORDINANCE AMENDING THE ELIGIBILITY CRITERIA FOR APPLICATION TO THE COUNTY AGRICULTURE PURCHASE OF DEVELOPMENT RIGHTS PROGRAM - AB2011-215 4. ORDINANCE AMENDING THE COMPREHENSIVE PLAN, URBAN GROWTH DESIGNATION, AND COMPREHENSIVE PLAN AND ZONING MAP DESIGNATIONS FOR PROPERTY IN THE YEW STREET RESERVE URBAN GROWTH AREA - AB2011-210 This item was withdrawn from the agenda. Whatcom County Council, 6/21/2011, Page 8 155 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 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. OTHER BUSINESS Brenner read an email from the Open Public Meetings Ombudsman for the State Attorney General's Office regarding the appearance of fairness doctrine as it applies to quasi-judicial proceedings. The Prosecutor's Office decided to advise staff to withhold emails regarding a pending quasi-judicial matter that will come before the Council. She wants to make sure she receives all mail sent to the Council, even if she has to submit a records request daily. Crawford stated he will continue to work on a policy regarding this matter that follows the letter of the law while allowing access to constituents. It's a tricky situation. The application has been filed. Brenner stated the Attorney General knew the application had been filed. He knows all about it. Council correspondence is supposed to be given to the councilmembers in a timely manner. That doesn't mean in weeks. She wants her mail. Kershner asked for more information or a presentation on the major project application. She would like to know what the Council will eventually see and when it will come forward. Crawford stated he will try to schedule a consultation with the Prosecutor's Office. Brenner stated that when she receives an email, she responds by sending them a copy of language that legal counsel pre -approved. The language lets people know who they should contact, what the public process is, how they can contribute to the public process, and at what point the Council is able to receive and view that information. They are discriminating against people who aren't writing to the councilmembers' individual email addresses. People who are sending the email to the Council email address don't know that the Council isn't getting the email. That's not right. It's councilmembers' responsibility to maintain their impartiality. It's not the responsibility of someone to withhold her mail. Larson stated they are talking about the Gateway Pacific Terminal project. The issue became quasi-judicial when the County received the application on June 10. Any time the Council enters a quasi-judicial status, the councilmembers should be noticed. Mann stated he supports Councilmember Brenner. The Council doesn't need its email censored. The councilmembers can be trusted to handle the information. Pete Kremen, County Executive, stated this policy that Ms. Brenner is referring to has nothing to do with the administration. Crawford stated the Council is trying to follow the rules regarding quasi-judicial decisions. Legal counsel has been alert to the rules and attempted to keep the Council abreast of what the councilmembers can and can't do. This matter is an important issue to the community. However, they must make sure they make decisions fairly, on the record, and following all the steps in this quasi-judicial manner. Whatcom County Council, 6/21/2011, Page 9 156 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 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Brenner stated she has done that all along. The Attorney General told her she can verbally say she is making a Freedom of Information request for that mail. She is making a verbal, public request for her mail, which she wants every day. REPORTS AND OTHER ITEMS FROM COUNCILMEMBERS Mann stated times are tough for many folks in the community, which he's been reminded of due to recent events that happened to him. Brenner stated she's forwarded everything she's received regarding the quasi-judicial matter to the County's Environmental Impact Statement (EIS) official. This is her and her husband's 281h anniversary. ADJOURN The meeting adjourned at 8:11 p.m. The Council approved these minutes on , 2011. ATTEST: Dana Brown -Davis, Council Clerk Jill Nixon, Minutes Transcription WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Sam Crawford, Council Chair Whatcom County Council, 6/21/2011, Page 10 157 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 201 a-7319 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Engels 3131/11 61I/11 INTRO Originator - u' E C 2 V E U D fl �C, MAY ,.31 2011 Division Head: P� 7 7� �l 7/ 12/ 11 Hearing Dept. Head: F DLL os 2s i Prosecutor: WHATCOM COUNTY COUNCIL Purchasin PK j Executive: TITLE 04 DOCUMENT: Ordinance granting a non-exclusive franchise to Harbor Shores Sewer Corporation, to allow for the provision of sewer services, application for same having been filed by Skip Jansen, Managing Member. Application received by Council 3131111. ATTACHMENTS. Ordinance Memo SEPA review required? ( ) Yes ( XX ) NO Should Clerk schedule a hearing ? (XX )Fes ( ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: July 12, 2011 SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) RCW 36.55 and § 9.30 of the Home Rule Charter provides for the granting of franchises to public and private utility companies for use of County rights of way. This is a new franchise allowing for use of and presence in County Rights -of -Way in order to place facilities necessary to provide sewer services. COMMITTEE ACTION.• COUNCIL ACTION.• 6/7/11: Introduced 7/12/11: Related County Contract #: Related File Numbers. Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/counciL Page 0 v 1.0 158 WHATCOM COUNTY PUBLIC WORKS DEPARTMENT FRANK M. ABART DIRECTOR �93H1 NC+�0 MEMORANDUM ADMINISTRATION CIVIC CENTER 322 N. Commercial Street, Suite 210 Bellingham, WA 982254042 Telephone: (360) 676-6692 FAX: (360) 7384561 www. whatcomcounty. us FAbart@co. whatcom. wa. us MAY 2 6 2011 TO: The Honorable Pete Kremen, County Executive, PETE KREMEN Honorable Members of the Whatcom County Council COUNTY EXECUTIVE THROUGH: Daniel L. Gibson FROM: Frank M. Abart, Public Works Director#yy P RE: Sewer Lines and Facilities Franchise for Harbor Shores Sewer Corporation DATE: May 25, 2011 ■ Requested Action Adopt an ordinance that will grant a franchise to Harbor Shores Sewer Corporation, allowing it to use and be present in County Rights of Way in order to provide sewer services to its customers, per the terms of the franchise Agreement. ■ Background and Purpose Harbor Shores Sewer Corporation wishes to operate lines and sewer facilities within County rights of way as described in Exhibit B, Harbor Shores Sewer Service Plan. Please contact Dan Gibson at extension 50703 if you have any questions or concerns regarding the terms of this agreement. Encl. Page 0 V 1.0 159 INTRODUCED BY: CONSENT PROPOSED BY: DATE INTRODUCED: ORDINANCE NO. IN THE MATTER OF GRANTING A NON- EXCLUSIVE FRANCHISE TO HARBOR SHORES SEWER ASSOCIATION, FOR A PERIOD OF 25 YEARS PURSUANT TO STATE LAW AND SECTION 9.30 OF THE WHATCOM COUNTY HOME RULE CHARTER, TO OPERATE AND MAINTAIN SEWER LINES AND FACILITIES ALONG CERTAIN ROADS AND HIGHWAYS WITHIN THE UNINCORPORATED AREAS OF WHATCOM COUNTY WHEREAS, Whatcom County's Home Rule Charter §9.30 authorizes the County Council to grant non-exclusive franchises for a fixed term not to exceed 25 years for the use of any street, road or public place; and WHEREAS, Home Rule Charter §9.30 also establishes certain requirements to which all franchises granted by the County must be subject, and those requirements have been included herein; and WHEREAS, R.C.W. 36.55.010 provides that the appropriate County authority, which in the case of Whatcom County is the County Council, may grant franchises to persons or private or municipal Associations to use County rights -of -way for the construction and maintenance of water works, gas pipes, telephones, telegraph and electrical light lines, sewers and other such facilities and including cable television wires and other cable television facilities; and WHEREAS, Harbor Shores Sewer Association wishes to operate a sanitary sewer system within a portion of Whatcom County and needs a franchise to authorize its use of the Page 1 of 15 160 County's rights -of -way; and WHEREAS, Harbor Shores Sewer Association has applied for a nonexclusive franchise for installation, operation, maintenance, repair and replacement of sewer lines, associated equipment and facilities in and along certain roads in Whatcom County, Washington, and notice of this hearing having been duly published on , 2011 and , 2011 in the Bellingham Herald, the official newspaper for Whatcom County, and it appearing to the County Council that notice of said hearing has been given as required by law and that it is in the public interest to grant the franchise for the maximum allowable period of 25 years; and WHEREAS, this matter has come on regularly for hearing before the Whatcom County Council at 7:00 p.m. on the day of , 2011 in accord with the notice given; and WHEREAS, Harbor Shores Sewer Association has agreed to the various administrative provisions of the franchise as provided herein; NOW, THEREFORE, BE IT ORDAINED by the Council of Whatcom County, Washington that a non-exclusive franchise, attached hereto as Exhibit A, is hereby granted to Harbor Shores Sewer Association for a period of twenty-five (25) years in order that it may Page 2 of 15 161 construct, operate and maintain sewer lines and facilities along certain County rights -of -way within the unincorporated areas of Whatcom County. Adopted this day of , 2011. ATTEST WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dana Brown -Davis SAM CRAWFORD, Clerk of the Council CHAIRPERSON ( ) APPROVED ( ) VETOED PETE KREMEN, COUNTY EXECUTIVE DATE APPROVED AS TO FORM: Daniel L. Gibson, Asst. Chief Civil Deputy Prosecuting Attorney ACCEPTED BY HARBOR SHORES SEWER ASSOCIATION DATE: BY: Name: Title: Published on This ordinance shall become effective on and Page 3 of 15 162 EXHIBIT A NON-EXCLUSIVE FRANCHISE AGREEMENT Section 1. Franchise Granted (a) A non-exclusive franchise for Harbor Shores Sewer Association, together with any successors and assignees, referred to herein as the grantee, is hereby granted for a period of 25 years, which provides franchisee the non-exclusive right and privilege to construct, erect, operate, maintain, repair, and replace sewer lines and related facilities in, along and across county roads or portions thereof as named herein. (b) The rights and privileges granted herein shall apply to all roads and public ways listed, including all portions of rights -of -way abutting said roads and public ways, as follows (and as described in Map attached hereto as Attachment A): On the Hall Road, incepting at a point three hundred (300) feet east of Blaine Road (SR-548) then continuing west across Blaine Road to Dearborn Avenue, and on Elmwood Drive from Dearborn Avenue to Hall Road, and on Bay Circle in its entirety lying southeast of Hall Road, and on Dearborn Avenue between Shipyard Road to the north, then south to Hall Road, and on Shipyard Road between Dearborn Avenue to the west then east to Blaine Road, all of which roads are located in the SE1/4 of Section 7, Township 40 North of Range 1 East of W.M. Section 2. Acceptance of Franchise (a) No franchise hereunder shall become effective for any purpose unless and until written acceptance therefore shall have been filed with the Whatcom County Council and County Director of Public Works and such written acceptance shall be in form and substance as shall be prescribed and approved by the County Prosecuting Attorney and operate as an acceptance of each and every term and condition and limitation contained in this ordinance, and in such franchise; Page 4 of 15 163 (b) Such written acceptance shall be filed by Grantee not later than the thirtieth day following the effective date of the ordinance granting such franchise; and in default of the filing of such written acceptance as herein required, Grantee shall be deemed to have rejected the same, except that the County shall have discretion to waive the tardiness of Grantee's acceptance if that occurs and if the County is so inclined.. Section 3. Entering Rights of Way. The Grantee, its successors and its assignees shall, subject to the requirements of Section 5 below, have the right and authority to enter upon the above -mentioned county roads, rights -of - way and other county property as designated hereinbefore, for the purposes of constructing, operating, maintaining, repairing, and replacing sewer lines and facilities. Section 4. Construction Standards. All construction and installation work along and under county roads or rights -of -way or other County property outside the corporate limits of any incorporated town shall be subject to the approval and pass inspection by the Public Works Director and shall conform to all applicable County and State codes or regulations. The County expressly reserves the right to prescribe how and where the facilities, shall be installed, and from time to time, upon six months or otherwise reasonable notice, whichever is longer', the County may require the removal and replacement of the facilities when in the public interest, at the expense of the franchise holder. Section 5. Construction Application. (a) Prior to commencement of construction of said sewer lines and facilities, Grantee shall first file with the Public Works Director its application for permit(s) to do such work, together with plans and specifications in duplicate showing the position and location of all such lines and facilities sought to be constructed, laid, installed or erected at that time, showing their relative position to existing county roads, rights -of -way or other county property upon plans 1 While the period of time is stated as "six months or otherwise reasonable notice, whichever is longer", the parties are generally willing to work to accommodate each other. Page 5 of 15 164 drawn to scale, hereinafter collectively referred to as the "map of definite location." (b) The sewer lines and facilities shall be laid in conformity with said map of definite location, or in conformity with design drawings by an engineer, except in instances in which deviation may be allowed thereafter in writing by the Director of Public Works or his authorized designee, pursuant to application by Grantee. The plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction, installation, backfill, erection of temporary structures, erection of permanent structures, traffic control, traffic turn -outs and road obstruction, etc. No such construction shall be commenced without the Grantee first securing a written permit from the Director of Public Works, including approval endorsed on one set of plans and specifications returned to the Grantee. All such work shall be subject to the approval of and shall pass the inspection of the Director of Public Works. The Grantee shall pay all actual and necessary costs of and expenses incurred in the examination, inspection and approval of such work on account of granting said permits. Section 6. Construction on Roadways/Other County Property. (a) In any work which requires breaking of soil of the county roads, rights -of -way or other county property subject to this franchise for the purpose of laying, relaying, connecting, disconnecting and repairing the said sewer lines and facilities, and making connections between the same to structures and buildings of customers or making connections to other facilities of the Grantee now in existence or hereafter constructed, the Grantee shall be governed by and conform to the general rules adopted by the officers charged with the supervision and care of such county roads, rights -of -way, and other county property; and the Grantee at its own expense and with all convenient speed shall complete the work for which the soil has been broken and forthwith replace the work and make good the county road, rights -of -way or other county property and leave the same in as good condition as before the work was commenced. (b) Applications for permits referred to in Section 5 above shall be accompanied by specifications for the restoration of the county road, rights -of -way or other county property to the Page 6 of 15 165 same condition it was prior to such breaking of the soil, and such specifications must be approved by the Director of Public Works before such breaking of the soil is commenced. The Director of Public Works may require a performance bond in a sum sufficient to guarantee that such county roads, rights -of -way or other county property shall be restored to the same condition as they were prior to the breaking of the soil. Said bond shall be in addition to any other such requirements contained herein. (c) The Director of Public Works may at any time order, or have done, any and all work that it considers necessary to restore to a safe condition any such county road, rights -of -way or other county property left by the Grantee or its agents in a condition dangerous to life or property, and the Grantee upon demand shall pay to the County all costs of such work; provided that, where reasonably feasible, the Grantee shall be provided prior notice of the condition and allowed seventy-two (72) hours to complete the necessary restoration work itself. Section 7. Construction — Other Lines and Facilities. (a) All construction or installation of such sewer lines and facilities, service, repair or relocation of same, performed above, along or within the county rights -of -way or other county property subject to this franchise shall be done in such a manner as not to interfere with the construction and maintenance of other utilities' lines, drains, drainage ditches and structures, irrigation ditches and structures located therein, nor change the drainage flow therein, nor interfere with the grading or improvement of such county roads, rights -of -way or other county property. (b) The owners of all utilities, public or private, installed prior in time to the lines and facilities of the Grantee shall have preference as to the positioning and location of such utilities so installed with respect to the Grantee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way. Page 7 of 15 166 Section 8. Construction - Public Safety and Inconvenience. All work done under this franchise shall be done in a thorough and workmanlike manner. In the laying of sewer lines and the construction of facilities within rights -of -way or other county property, the Grantee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same, so that damage or injury shall not occur or arise by reason of such work; and where any of such trenches, ditches, or tunnels are left open at night, the Grantee shall place warning lights and barricades at such a position as to give adequate warning of such work, per the MUTCD (Manual on Uniform Traffic Control Devices). The Grantee shall be liable for any injury to person or persons or damage to property sustained through its carelessness or neglect, or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Grantee. Section 9. County Rights Reserved. In granting this franchise, Whatcom County does not waive any rights which it has now or may hereafter acquire with respect to county roads, rights -of -way or other county property and this franchise shall not be construed to deprive the County of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads, rights -of -way or other County property covered by this franchise. This franchise shall be subject to the power of eminent domain, and in any proceeding under eminent domain, the franchise itself shall have no value. Section 10. Relocation of Lines and Facilities. (a) If the County of Whatcom shall improve or change any county road, right-of-way or other county property subject to this franchise by grading or regrading, planking or paving the same, changing the grade, altering, changing, repairing or relocating the same or by constructing drainage facilities, or in the event that such county road, right-of-way or other county property subject to this franchise shall become a Primary State Highway as provided by law, the Grantee Page 8 of 15 167 shall, at its sole expense and within six months or a reasonable time, whichever is longer,2 following written notice from the Director of Public Works or the Director of Highways, change the location or readjust the elevation of its sewer lines and facilities so that the same shall not interfere with such County or State work and so that such lines and facilities shall conform to such new grades or routes as may be established. Whatcom County shall not be liable for damages to Grantee's property that may occur by reason of any of the County's improvements, changes or works referenced above, except in the event that said damage is caused by the sole gross negligence or intentionally wrongful acts of the County or its agents. (b) All work to be performed by the Grantee under this section shall be under the direction and approval, and shall pass the inspection of the Director of Public Works. The Grantee shall pay all actual and necessary costs and expenses incurred in the examination, inspection and approval of such work. Section 11. County Road Work Permitted. The laying, construction, operation and maintenance of the Grantee's sewer lines and facilities authorized by this franchise shall not preclude Whatcom County, its agents or its contractors from blasting, grading, excavating or doing other necessary road work contiguous to the said lines and facilities of the Grantee provided that the Grantee shall provide the locations of all of its lines to the line locator service and Whatcom County, prior to beginning any such work, shall first check with the locator service to determine whether or not any of Grantee's lines are located in the proposed work area. Upon finding from the locator service that Grantee does have lines located within the proposed work area, Whatcom County shall provide Grantee with seventy-two (72) hours notice of proposed work, except if a lesser time for notice is warranted by emergency, in order that the Grantee may protect its lines and facilities. Failure of Grantee to properly notify the locator service of the location of its lines shall relieve Whatcom County of its duty to provide Grantee the otherwise -required advance notice of proposed work. 2 See footnote 1. Page 9 of 15 Section 12. Monuments and Survey Markers. (a) Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions, plats, roads and all other surveys, the Grantee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Grantee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the Director of Public Works. The replacement of all such monuments or other reference points shall be approved by the Director of Public Works. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as possible and under direction of the Public Works Director. Grantee shall bear the cost of replacing any monuments or other markers lost, destroyed or disturbed, and replacements are subject to Grantor's approval. (b) A complete set of reference notes for monuments and other ties shall be filed with the Whatcom County Director of Public Works. Section 13. Maintenance Harbor Shores Sewer Association shall maintain all above -ground improvements that it places on County right-of-way pursuant to this franchise. In order to avoid interference with the County's ability to maintain the right-of-way, Harbor Shores Sewer Association shall provide a clear zone of five feet on all sides of such above -ground improvements. If Harbor Shores Sewer Association fails to comply with this provision, and by its failure, property is damaged, than Harbor Shores Sewer Association shall be responsible for all damages caused thereby. Section 14. Vacations. If at any time Whatcom County shall vacate any county road, right-of-way or other county property which is subject to the rights granted by this franchise, then the Whatcom County Council may, at its option and by giving thirty (30) days written notice to the Grantee, terminate this franchise with reference to such county road, right-of-way or other county property so vacated and Whatcom County shall not be liable for any damages or loss to the Page 10 of 15 169 Grantee by reason of such termination. Prior to vacation, Whatcom County shall, at the request of Grantee, reserve for the benefit of Grantee an easement for the sewer lines and facilities in the subject right of way or county property. Section 15. Indemnification. (a) By acceptance of the privileges granted hereunder, Grantee hereby agrees and covenants to indemnify, defend, and save harmless Whatcom County and those persons who were, are now, or shall be duly elected or appointed officials or members or employees thereof, against and from any loss, damage, costs, charges, expenses, liability, claims, demands or judgments of whatsoever kind or nature, whether to persons or property, arising wholly or partially out of any act, action, neglect, omissions or default on the part of the Grantee, its subcontractors and/or employees, which may occur by reason of construction, operation and maintenance of the Grantee's said sewer lines and facilities. In case that suit or action is brought against Whatcom County for damages arising out of or by reason of the above -mentioned causes, the Grantee will upon receiving notice of the filing of a claim or the commencement of said action, appear for and defend the same at its sole cost and expense, and in case judgment shall be rendered against Whatcom County in a suit or action, the Grantee will fully satisfy said judgment within ninety (90) days after said suit or action is finally been determined. Upon the Grantee's failure to satisfy said judgment within a ninety (90) day period, this franchise shall at once cease and terminate and Whatcom County shall have a lien upon the sewer lines and all other facilities used in the construction, operation and maintenance of the Grantee's sewer system, which may be enforced against the property for the full amount of any such judgment so taken against Whatcom County. (b) Whatcom County's acceptance of any work performed by the Grantee at the time of completion shall not be grounds for avoidance of this covenant. Section 16. Non -Exclusive Franchise. This franchise shall not be deemed to be an exclusive franchise. It shall in no manner Page 11 of 15 170 prohibit Whatcom County from granting other franchises of a like nature or franchises for other public or private utilities under, along, across, over and upon any of the county roads, rights -of - way, or other County property subject to franchise, and shall in no way prevent or prohibit Whatcom County from constructing, altering, maintaining, using or vacating any of said roads, rights -of -way, drainage structures or facilities, irrigation structure or facilities, or any other County property or affect its jurisdiction over them with full power to make all necessary changes, relocations, repairs, and maintenance as the County may deem fit. Section 17. Successors and Assignees. All the provisions, conditions, regulations and requirements contained herein shall be binding upon the successors and assignees of the Grantee, and all privileges, as well as all obligations and liabilities of the Grantee shall inure to its successors and assigns equally as if they were specifically mentioned wherever the Grantee is mentioned herein. Section 18. Transferability. Neither this franchise nor any interest herein shall be sold, transferred or assigned without prior consent in writing of the Whatcom County Council, such consent not to be unreasonably withheld. Section 19. Incorporation. Whenever any of the county roads, rights -of -way or other county property as designated in this franchise, by reason of the subsequent incorporation of any town or city, or extension of the limits of any town or city, shall fall within the city or town limits, this franchise shall continue in force and affect as to all county roads, rights -of -way or other county property not so included in city or town limits. Page 12 of 15 171 Section 20. Enforcement/Remedies. If the Grantee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect, or fail to heed or comply with any notice given the Grantee under the provisions of this franchise, then the said Grantee shall forfeit all rights conferred hereby, and this franchise may be revoked or annulled by the Whatcom County Council. In addition to any rights implied or set out elsewhere in this ordinance, the Council reserves the right to require the Grantee to specifically comply with the terms and conditions of the franchise ordinance, or any lawful order, statute, or regulation, and this franchise may be terminated at any time if the Grantee's lines and facilities are not operated or maintained in accordance with such ordinance, statute, order or regulation. Section 21. Reservation of Home Rule Charter Rights. This franchise is subject to the provisions of the Home Rule Charter for Whatcom County and, in particular, Section 9.30 thereof which provides as follows: All franchises granted by the County Council shall be for a fixed term not to exceed twenty-five (25) years and no exclusive franchise shall be granted for the use of any street, road, or public place. All franchises shall be subject to the power of eminent domain and the right of the Council or the people acting for themselves through initiative or referendum to repeal, amend or modify the franchise in the interest of the public; and every ordinance granting a franchise shall contain a reservation of these rights. In any proceeding under eminent domain the franchise itself shall have no value. Section 22. Compliance with Laws and Regulations. This franchise is subject to, and the Grantee shall comply with, all applicable Federal, State, County or municipal laws, regulations and policies affecting performance under this franchise. Page 13 of 15 172 Section 23. Insurance. (a) Upon acceptance of this franchise, the Grantee shall, at the discretion and request of the County, file with the Whatcom County Council, and shall thereafter, during the entire term of such franchise, maintain in full force and effect, a corporate insurance policy or other adequate surety agreement in the amount of ONE MILLION DOLLARS ($1,000,000.00) for property damage coverage, and ONE MILLION DOLLARS ($1,000,000.00) for public liability coverage, so as to protect the County against damages or costs as set forth in Section 14 above. There shall be recoverable, jointly and separately from the principal and surety, any such damages or costs suffered or incurred by the County, including attorneys' fees and costs of any action, or proceedings, and including the full amount of any compensation, indemnification, cost of removal of any property or other costs which may be incurred up to the full principal amount of such insurance policy. Said condition shall be a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obligations to the County and any user that may arise out of or pertain to said franchise. Neither the provisions of this section, nor any insurance policy accepted by the County pursuant hereto, nor any damages recovered by the County thereunder, shall be construed to excuse faithful performance by the Grantee, or limit the liability of the Grantee under any franchise issued pursuant to this ordinance. (b) The County reserves the right to have its legislative body review the dollar amount of said insurance policy and adjust the amount of coverage as deemed appropriate upon an annual basis. Section 24. License, Tax and Other Charges. No privileges or rights granted hereunder shall exempt Grantee from any future uniform rent, license, tax charge or impost which may hereafter be required by the Grantor, for revenue or as reimbursement for use and occupancy of public ways, and failure to timely remit any sums properly due shall be cause for forfeiture of rights hereunder. Page 14 of 15 173 Section 25. Repealer. All other prior existing franchises granted by Whatcom County to Harbor Shores Sewer Association shall be repealed, and the terms of the franchise granted hereunder shall become effective at such time as an acceptance of franchise is filed by the Grantee with the County in accordance with Section 2 herein. Section 26. Severability. If any portion of the ordinance is deemed invalid the remainder will remain in effect. Section 27. Titles. The section titles used herein are for reference only and should not be used for the purpose of interpreting this ordinance. APPROVED AS TO FORM: 9&"z-/- 44-x� Daniel L. Gibson, Asst. Chief Civil Deputy Prosecuting Attorney PETE KREMEN, COUNTY EXECUTIVE DATE ACCEPTED BY HARBOR SHORES SEWER ASSOCIATION DATE: Name: Title: Page 15 of 15 174 % e 1 �... '� .91YR'A 1 aJ� �J s�. •1I 77 TV x, SHIPYARD RD if for t[T � .� ?.,•.'�� .Y z 4 Irk ya m ~ ELMWOOD DRIVErr TIT RD HALL _ 17, 0 0 10200 CASCADE r ATTACHMENT A ENGINEERI.\G GROUP P.S., INC. ' •s '":. HARBOR SHORES 7 SCALE IN FEET [P �,=] 119GrandAvenue,SuiteD (360)306-8tst Bellingham. Washington 98225 ` �' "'�,�•; �? SEWER ASSOCIATION FRANCHISE MAP 110 175 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2011-215 CLEARANCES Initial Date Date Received in Council Office Agenda Date 6/21/2011 Assigned to: Originator: SLKL FRI E C E� V E D JUN 14 2011 Nat Res Introduction Division Head. 41 6/21 Dept. Head.- WHATCOM COUNTY 7/12/2011 Hearing Prosecutor: _ COUNCIL ,3 �, Purchasing/Budget: Executive: TITLE OF DOCUMENT: Proposed Agricultural Purchase of Development Rights Ordinance to Change Eligibility Criteria ATTACHMENTS: Cover Memo, Proposed Ordinance SEPA review required? ( ) Yes ( x ) NO Should Clerk schedule a hearing ? ( x ) Yes ( ) No SEPA review completed? ( ) Yes ( x ) NO Requested Date: July 12, 2011 S UMMAR Y STA TEMENT OR LEGAL NOTICE LANGUAGE: The proposed ordinance changes the PDR Program eligibility requirements in WCC 3.25A.070 by removing specific zoning designation references, and continuing to rely on the criteria as outlined in the PDR Program Guidelines. Related PDR Program documents and committee records for reference can be found at http://www.whatcomcounty.us/pds/planning/agricultural pro_ rq am.jsp COMMITTEEACTION. COUNCIL ACTION. 6/21/2011: Committee recommends the ordinance 6/21/2011: Amended version Introduced Related County Contract #: Related File Numbers: Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/council. 176 WHATCOM COUNTY k°om co Planning & Development Services sPu °tip J.E. "Sam" Ryan 5280 Northwest Drive 3 '` Director Bellingham, WA 98226-9097 360-676-6907, TTY 800-833-6384 `�gstiNG�or 360-738-2525 Fax RECEIVED MEMORANDUM JUN 9 - 2011 PE I E KREMEN COUNTY EXECUTIVE TO: Pete Kremen, Honorable Whatcom County Executive Honorable Whatcom County Council Members THROUGH: J.E. "Sam" Ryan, Director-) P° _ TY�l FROM: Samya Lutz, Planner RE: Proposed Purchase of Development Rights Program Eligibility Changes DATE: June 9, 2011 Enclosed is a draft ordinance recommending changes to the eligibility section of Agricultural Purchase of Development Rights Program (PDR Program) code 3.25A.070, as recommended by the PDR Oversight Committee. ■ Background and Purpose According to the WCC 3.25A and the PDR Program Guidelines, the PDR Oversight Committee reviews applications to the program and makes recommendations to Council for easement purchases based on criteria established in the guidelines document. Some potential applicants own agricultural lands in areas outside the zoning bounds established in the eligibility criteria of the code, but still within areas designated Rural in the comprehensive plan. Some of these lands would achieve a high rank based on the criteria established in the PDR Program Guidelines. The committee proposes a code change as depicted in the enclosed draft ordinance. As is currently the case, applicant -owned lands achieve high ranking based primarily on their soils; and secondarily on a combination of their location in or adjacent to Agricultural and Rural Study Areas, size, active farm status, proximity, and presence of development rights and' water rights documentation. While most lands that rank highly based on these criteria fall within the Agriculture, R5A or R10A zones, there are some lands lying also within Rural Comprehensive Plan -designated areas, but within other zoning districts that would rank highly based on the same criteria listed above. 177 The committee recommends the deletion of the current clause in the code language that restricts eligibility to only those three zoning designations, and instead a reliance on the criteria outlined in the Program Guidelines. Please contact Samya Lutz at extension 51072, if you have any questions or concerns regarding this proposed ordinance. Enclosures 178 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 SPONSORED BY: Planning PROPOSED BY: Planning INTRODUCTION DATE: ORDINANCE NO. AN ORDINANCE TO CHANGE THE ELIGIBILITY CRITERIA FOR APPLICATION TO THE COUNTY AGRICULTURAL PURCHASE OF DEVELOPMENT RIGHTS PROGRAM. WHEREAS, The Growth Management Act and the County Comprehensive Plan support the retention of agricultural lands and encourage the use of innovative techniques to do so; and WHEREAS, ORD2002-054 established the Agricultural Purchase of Development Rights Program (PDR Program), applicable to all qualifying lands as identified in the PDR Program Guidelines, and governed by an Oversight Committee that is to advise and make recommendations to the County Council; and WHEREAS, Commercial agricultural activities occur on county lands located outside of the areas specified in the current WCC 3.25A.070; and WHEREAS, The PDR Oversight Committee met on March 18, 2011 and April 29, 2011 to discuss recommended changes to PDR Program eligibility; and WHEREAS, The Whatcom County Council held a public hearing to take comments on the proposed code amendment on July 12, 2011. NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that: Section 1. The Whatcom County Code, Section 3.25A.070 is amended as shown in Exhibit A. Section 2. The Purchase of Development Rights Oversight Committee is requested to recommend changes to the PDR Program Guidelines that are consistent with this code amendment. 179 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ADOPTED this ATTEST: day of , 2011. Dana Brown -Davis, Council Clerk APPROVED as to form: Civil Deputy Prosecutor Date: WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Sam Crawford, Chairperson ( ) Approved ( ) Denied Pete Kremen, Executive 1 2 3 4 5 6 7 8 9 EXHIBIT A 3.25A.070 Eligibility Criteria In order for a parcel to be eligible for a conservation easement, it must be located outside of an established urban growth area and within Rural 2A, Rural 5A*, Rural 5A, Rural 10A, or Agriculture zoned land and meet any additional eligibility criteria as defined in the PDR program guidelines. 181 WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2011-231 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: SMI)j�- 6/16/11 � � `� � � � — -)EC— D J U L Q 5 2011 ` H Y H AT C O M C O U N 1 Y COUNCIL 7/12/11 Council Division Head. Dept. Head.- Prosecutor: Purchasin /Bud et: Executive: TITLE OF DOCUMENT: Appointment of Daniel Tepper to the Bicycle/Pedestrian Advisory Committee ATTACHMENTS: Application for appointment. SEPA review required? ( ) Yes ( X) NO SEPA review completed? ( ) Yes ( X) NO Should Clerk schedule a hearing ? ( ) Yes ( X) NO Requested Date: SUMMARYSTATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) County Executive Pete Kremen requests the confirmation of his appointment of Daniel Tepper to the Bicycle/Pedestrian Advisory Committee. COMMITTEE ACTION. COUNCIL ACTION: Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the Coun 's website at. www.co.whatcom.wa.us/council. 182 06/09/2011 13:00 3606711550 SOUTHERN CROSS APT PAGE 01/01 PETE KREMEN a GOUNCILMEMBERS: County Execudve 6. RECIVED Barbara E. Brenner Sam Crawford ' Kathy Kushner J U N 13 2011 Bill Knutren Tony Larson Ken Mann Garl Weimer PtTE KREMEN COUNTY EXECUTIVE APPLICATION FOR APPOINTMENT TO WHATCOM COUNTY BOARDS AND COMMISSIONS Name of board or committee-nlease see reverse: 1`1i " C fe- / '-Je5 �v+CltL Adv, �c�t�f»• tte' Which position on this board are you applying for (if applicable)? Which Council district do you reside in? (6110ne ( )Two, ( ) Three Are you a US citizen? (V yes ( ) no Are you a registered voter? ( fires ( ) no r Name: � c ln,e ( f VA y Street Address: C'' -Rd V f{ ► -5 Eve, �5 0 r f t' q City: le Lac i,.. I� Mailing Address (if different from street address): Date: L'? + Zip Code: 9 r9 ash Day Telephone: 3fo2- �` �'t ` Evening Telephone: '; �p'` 0&S`Sr Fax Number: 39,0:: 1--14-S"6 E-mail address: Oioer,a �54h rw CV-05'S CQw- Occupation (If retired, please indicate former occu tion): TV".wf ( a"Le.� �} Professional/Community Activities: j/� 1c(,�Ct 'r fc�t/44 ��t4' Pgg,1C5 Education: 13A 13oq4,e5,1' AA-" ; Qualifications related to position: 7T,kAAyf--Se vrV4�e_ a'�4 41..e W 4 5 q i S cl) �hn�ctC7w.k�� dw placcr� �� cP a°w. Desbe why you are interested in serving on this board or commission: Ckf.� i.ovra�.� GK V0 C Do you your spouse have a finitfficial interest in or are you an empl yee or officer of any business or agency that does business with Whatcom County? () yes (0-150 If yes, please explain; References (please include name and daytime telephone number): Va rC (vv { — L1 << R Signature of a As a candidate to a public board or.dommission, the above information will be available to the County Council, County Executive, and the public. 183