HomeMy WebLinkAboutRES 4233CITY OF RENTON, WASHINGTON
RESOLUTION NO. 4233
A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, AUTHORIZING THE
MAYOR AND CITY CLERK TO ENTER INTO AN INTERLOCAL AGREEMENT WITH
KING COUNTY AND THE CITIES OF AUBURN, BELLEVUE, FEDERAL WAY,
ISSAQUAH, KENT, KIRKLAND, MERCER ISLAND, REDMOND, SEATTLE, AND
TUKWILA REGARDING THE IMPLEMENTATION OF THE PUGET SOUND
EMERGENCY RADIO NETWORK.
WHEREAS, the City and the Cities of Auburn, Bellevue, Federal Way, Issaquah, Kent,
Kirkland, Mercer Island, Redmond, Seattle, and Tukwila (the "Cities") and King County (the
"County") are authorized, pursuant to RCW Chapter 39.34, to enter into an interlocal
government cooperative agreement; and
WHEREAS, the current public safety radio system is multi-headed. The south end cities
work with Valley Communications Center ("Valley Com"). The East side cities work with the
Eastside Public Safety Communications Agency ("EPSCA"). Seattle has its own self-contained
system (which does not interact with other systems), and the County has its system, which does
interact with Valley Com and EPSCA; and
WHEREAS, the hardware currently in use is outdated; and
WHEREAS, it is unknown how long the current system will operate; and
WHEREAS, to respond to the need to modernize the emergency radio system, the
County and the Cities have been working on a plan to implement a change over to a new
system and create a new legal entity to operate the new system. The plan would involve the
cooperation of all of these jurisdictions; and
1
RESOLUTION NO. 4233
WHEREAS, the proposal involves the creation of a new radio system called the Puget
Sound Emergency Radio Network or PSERN; and
WHEREAS, it is in the best interests of the residents of the City of Renton to construct
and implement a new emergency radio system;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DOES
RESOLVE AS FOLLOWS:
SECTION I. The above recitals are found to be true and correct in all respects.
SECTION II. The Mayor and City Clerk are hereby authorized to enter into an
interlocal agreement with the Cities and the County regarding the implementation of the Puget
Sound Emergency Radio Network, which shall be substantially similar to the form attached
hereto as Exhibit A.
PASSED BY THE CITY COUNCIL this 17th day of_N_o_v_e_m_b_e_r _____ , 2014.
Denis Law, Mayor
ApproviJ's to form:
c;x ~ ....... til! 1/W~
Lawrence J. Warren, City Attorney
RES.1651: 11/ 4/14:scr
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RESOLUTION NO. 4 2 3 3
EXHIBIT A
PUGET SOUND EMERGENCY RADIO NETWORK
IMPLEMENTATION PERIOD
INTERLOCAL COOPERATION AGREEMENT
EXHIBIT A-1
RESOLUTION NO. 4233
TABLE OF CONTENTS
1.0 Rules of Construction and Definitions ...................................................... 4
2.0 Duration of Agreement. ............................................................................ 7
3.0 The Parties' Responsibilities .................................................................... 7
4.0 Joint Board .............................................................................................. 8
5.0 PSERN System Implementation ............................................................ 12
6.0 Dispatch Center Equipment Implementation ......................................... 15
7.0 Subscriber Radio Equipment lmplementation ........................................ 16
8.0 PSERN Project Budget for Implementation Period ................................ 18
9.0 Transfer of System for Operations Period ............................................. 20
10.0 Operations and Maintenance Pending Transfer .................................... 20
11.0 Intellectual Property, Confidential Information and Records .................. 21
12.0 Force Majeure ....................................................................................... 22
13.0 Termination of Agreement; Addition, Withdrawal and Removal of a Party22
14.0 Legal Relations ...................................................................................... 23
15.0 General .................................................................................................. 25
EXHIBITS
Ex. 1 Contracting Plan
Ex. 2 List of Party Owned/Controlled Sites
Ex. 3 List of Frequencies
Ex. 4 Cost Allocation Model
EXHIBIT A-2
RESOLUTION NO. 4 2 3 3
Ex. 5 List of User Agencies Eligible for Radio Exchanges
Ex. 6 Contact Information
EXHIBIT A-3
RESOLUTION NO. 4 2 3 3
PUGET SOUND EMERGENCY RADIO NETWORK
IMPLEMENTATION PERIOD
INTERLOCAL COOPERATION AGREEMENT
This lnterlocal Cooperation Agreement ("Agreement") is entered into pursuant to the
lnterlocal Cooperation Act (Chapter 39.34 RCW) by and among King County ("County")
and the Cities of Auburn, Bellevue, Federal Way, Issaquah, Kent, Kirkland, Mercer
Island, Redmond, Renton, Seattle and Tukwila, each a political subdivision of the State
of Washington (individually, a "Party," and collectively, the "Parties").
RECITALS
A. The Parties, under various interlocal agreements, are responsible for the ownership,
operations and maintenance of various elements in the current King County Emergency
Radio Communications System (KCERCS), a voice radio system that is nearly twenty
years old and is increasingly unsupported by the supplier of the system's equipment,
software and repairs.
B. The Parties have determined that it is in the public interest that a new public safety
radio system be implemented that will provide public safety agencies and other user
groups in the region with improved coverage and capacity, and uniformly high-quality
emergency radio communications at a cost-effective price. Said new system is referred
to herein as the "Puget Sound Emergency Radio Network System" or "PSERN System."
C. The Parties seek to finance the costs of implementing the PSERN System by a
funding measure to be placed on the ballot by the King County Council for consideration
by the qualified electorate in King County.
D. The Parties desire that the County act as the lead agency for planning, procurement,
financing and implementation of the PSERN System and that a new non-profit entity will
be formed to assume the ownership and control of the PSERN System following Full
System Acceptance.
E. The purpose of this Agreement is to establish the terms under which the Parties will
undertake the planning, financing, procurement, site acquisition and development,
equipment installation, and other activities necessary to implement the PSERN System.
F. Concurrent with this Agreement, the Parties have entered into a second interlocal
cooperation agreement, referred to herein as the "PSERN Operations I LA," to establish
the terms under which the Parties will create a new entity, referred to herein as the
"PSERN Operator", to be responsible for the ownership, operations, maintenance, and
on-going upgrading/replacing of the PSERN System during its anticipated useful life.
EXHIBIT A-4
RESOLUTION NO. 4 2 3 3
TERMS AND CONDITIONS OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants
contained herein and other valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree to the above Recitals and the following terms and
conditions.
1.0 RULES OF CONSTRUCTION AND DEFINITIONS
1.1 Rules of Construction
1.1.1 Unless the context requires otherwise, the singular form of a word shall also mean
and include the plural (and vice versa), and the masculine gender shall also mean and
include the feminine and neutral gender (and vice versa).
1.1.2 References to statutes or regulations include all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation referred to.
1.1. 3 References to sections, exhibits, attachments or appendices are to this
Agreement and references to articles or sections followed by a number shall be deemed
to include all subarticles, subsections, subclauses, subparagraphs and other divisions
bearing the same number as a prefix.
1.1.4 The words "including," "includes" and "include" shall be deemed to be followed by
the words "without limitation".
1.1.5 The words "shall" or "will" shall be deemed to require mandatory action.
1.1.6 Words such as "herein," "hereof' and "hereunder" are not limited to the specific
provision within which such words appear but shall refer to the entire Agreement taken
as a whole.
1.1.7 Words such as "person" or "party" shall be deemed to include individuals, political
subdivisions, governmental agencies, associations, firms, companies, corporations,
partnerships, and joint ventures.
1.1.8 References to "days" shall mean calendar days unless expressly stated to be
"Business Days." If the due date for a task, payment, or any other requirement falls on a
Saturday, Sunday or holiday observed by the County, the due date shall be deemed to
be the next Business Day.
1.1.9 Words not otherwise defined that have well-known technical industry meanings
are used in accordance with such recognized meanings.
1.1.1 0 The headings and captions inserted into this Agreement are for convenience of
reference only and in no way define, limit, or otherwise describe the scope or intent of
this Agreement, or any provision hereof, or in any way affect the interpretation of this
EXHIBIT A-5
RESOLUTION NO. 4 2 3 3
Agreement.
1.1.11 This Agreement was negotiated and prepared by the Parties and their
respective attorneys. The Parties acknowledge and agree that the rule of
construction that an ambiguous contract should be construed against the drafter
shall not be applied in any construction or interpretation of this Agreement.
1.2 Definitions
Words and terms shall be given their ordinary and usual meanings except that the following
terms are defined for this Agreement as follows:
1.2.1 Agreement means this Puget Sound Emergency Radio Network
Implementation Period lnterlocal Cooperation Agreement.
1.2.2 Alternate means a person appointed to serve in the absence of a Joint Board
Representative.
1.2.3 Appointing Party(ies) means the City of Seattle, the EPSCA Cities, the ValleyCom
Cities and King County.
1.2.4 Confidential Information means any information in written, graphic, verbal
or machine-recognizable form that: (a) is related to PSERN; (b) is provided to a
Party by another Party, the PSERN Contractor or another person or entity; and
(c) is marked or identified as "confidential", "proprietary," "trade secret" or similar
designation.
1.2.5 Cost Allocation Model means the method used for determining the user
rates applicable to Dispatch Centers and User Agencies for fees they will pay to
either the County or the PSERN Operator during the Operations Period.
1.2.6 County means King County, Washington.
1.2. 7 Dispatch Center means a facility or an entity that uses PSERN to dispatch users
of Subscriber Radios.
1.2.8 EPSCA means the Eastside Public Safety Communications Agency.
1.2.9 EPSCA Cities means the Cities of Bellevue, Issaquah, Kirkland, Mercer
Island and Redmond, Washington.
1.2.1 0 Full System Acceptance (FSA) means the determination issued to the
PSERN Contractor upon satisfactorily completing the final system development
phase milestone.
1.2.11 Implementation Period means that period of time from the effective date
of this Agreement through and until the beginning of the first full month after
issuance of FSA.
1.2.12 Joint Board means the board formed by the Parties under this Agreement.
EXHIBIT A-6
RESOLUTION NO. 4 2 3 3
1.2.13 KCERCS means the existing King County Emergency Radio
Communication System.
1.2.14 NAC means a notice of apparent completion issued under the contract
with the PSERN Contractor.
1.2.15 Operations Budget means the budget funded by fees from Dispatch
Centers and User Agencies to pay for the costs of operating, maintaining and
upgrading PSERN after FSA.
1.2.16 Operations Period means the period that commences with the first full
month after FSA.
1.2.17 Party means a signatory to this Agreement and excludes a signatory that
withdraws from this Agreement.
1.2.18 Project (or PSERN Project) means all authorized activities relating to the
planning, analysis, design, development, acquisition, site development, installation,
testing, training, and operation of the PSERN System until FSA, starting-up a new
PSERN Operator, transferring the PSERN System to same and any decommissioning,
contract close-out and other project completion activities.
1.2.19 Project Budget means the budget approved by the Joint Board to spend
the funds the County Council has appropriated to carry out PSERN Project
activities. 1.2.20 Project Fund means the funds held by the County to fund the
Project Budget including proceeds from the County-wide levy and proceeds from
any bond or debt instruments.
1.2.21 Project Director means the County employee assigned to lead Project
activities.
1.2.22 PSERN means the Puget Sound Emergency Radio Network.
1.2.23 PSERN Contractor means the prime contractor under County Contract
# (or the County Contract) that is responsible, among other things, for
supplying the PSERN System's equipment and software.
1.2.24 PSERN Operations Period ILA (or Operations Period ILA) means the interlocal
cooperation agreement entered into by the Parties concurrent with this Agreement to
establish the terms under which the Parties will create a new PSERN Operator to own,
operate, maintain, manage and upgrade/replace the PSERN System during the
Operations Period.
1.2.25 PSERN Operator means the new entity formed pursuant to the PSERN
Operations Period I LA.
1.2.26 PSERN Project (see "Project").
EXHIBIT A -7
RESOLUTION NO. 4233
1.2.27 Representative means a person appointed by an Appointing Party(ies) to
serve on the Joint Board.
1.2.28 Subscriber Radio means an end user radio and includes a mobile
(vehicular) and portable (handheld) radio which has been authorized and
programmed to operate on the System.
1.2.29 System means all the elements constituting the PSERN System,
excluding Subscriber Radios unless the context indicates inclusion.
1.2.30 User Agency means an entity that uses the PSERN System for its
employees' radio communications.
1.2.31 User Agency Agreement means an agreement executed between the
County or the PSERN Operator, as appropriate, and a User Agency establishing
the terms under which a User Agency is allowed to access and use the System.
1.2.32 ValleyCom means the Valley Communications Center.
1.2.33 ValleyCom Cities means the Cities of Auburn, Federal Way, Kent,
Renton, and Tukwila, Washington.
2.0 DURATION OF AGREEMENT
2.1 This Agreement shall take effect on the date when last signed by an authorized
representative of each Party.
2.2 Unless extended by written amendment as provided in Section 15.10 or
terminated earlier as provided in Section 13, this Agreement shall expire upon the
issuance of FSA and the County's written notice to the other Parties that all Project
activities have been completed.
2.3 Notwithstanding Section 2.1 and 2.2 above, if the Project is not funded by a voter
approved measure prior to January 1, 2018, this Agreement shall terminate on January
1, 2018 unless extended by agreement of the Parties.
3.0 THE PARTIES' RESPONSIBILITIES
3. 1 Appointing Representatives to Joint Board
The Parties, or groups of Parties, shall appoint Representatives to the Joint Board as
provided under Section 4.
3.2 Use of Land and Improvements
To the extent provided in Section 5.3, each Party agrees to make land and
improvements available for PSERN System use.
EXHIBIT A-8
RESOLUTION NO. 4 2 3 3
3.3 Use of Licensed Spectrum
To the extent provided in Section 5.4, each Party agrees to make licensed spectrum
under its direct or indirect control available for PSERN System use.
3.4 Cooperation on PSERN System Activities
Each Party understands and agrees that it is essential to public safety, within its
jurisdiction and throughout King County, that the PSERN System be implemented
without delay. In support of that objective, each Party agrees to cooperate in good faith
with each other in all activities related to the PSERN System's implementation,
operation and maintenance, which cooperation shall include: promptly responding to
requests for information among the Parties; exercising best efforts to expedite the
processing and execution of any requested reviews, inspections, approvals, permits,
leases and agreements; and timely performing any construction, installation, testing and
maintenance activities related to the PSERN System.
3.5 Other Responsibilities
The Parties shall be responsible for such other activities and obligations as are
specified herein or arise from a Joint Board action.
4.0 JOINT BOARD
4.1 Creation of Joint Board
By executing this Agreement, the Parties hereby create a Joint Board pursuant to RCW
39.34.030(4). The Joint Board is not a separate legal or administrative entity within the
meaning of RCW 39.34.030(3). The Joint Board shall oversee the activities of the
Parties in connection with the PSERN System as provided in this Agreement. The Joint
Board shall act on behalf of all Parties and as may be in the best interests of the
PSERN Project. The Joint Board is not authorized to enter into contracts, own assets, or
hire employees.
4.2 Joint Board Representatives
4.2.1 The Joint Board shall consist of four (4) voting Representatives appointed
as follows by the Parties, or groups of Parties:
a. City of Seattle: one ( 1) Representative and one ( 1) Alternate.
b. Cities of Bellevue, Issaquah, Kirkland, Mercer Island and Redmond
collectively: one (1) Representative and one (1) Alternate.
c. Cities of Auburn, Federal Way, Kent, Renton and Tukwila collectively:
one (1) Representative and one (1) Alternate.
d. King County: one (1) Representative and one (1) Alternate.
EXHIBIT A-9
RESOLUTION NO. 4 2 3 3
4.2.2 The non-voting Chair of the Joint Board shall be the Deputy County
Executive or his/her designee. The Chair or designee shall conduct the Joint
Board's meetings and supervise the administrative activities related to meetings
including scheduling, preparing the agendas, providing reports and other
information materials to the Representatives and creating records of Joint Board
actions.
4.2.3 The Joint Board may also appoint a chief of a police agency and a chief of
a fire agency to serve as non-voting participants on the Joint Board, provided
they are from agencies within King County.
4.2.4 The County Executive, the Mayor of the City of Seattle, the Mayors of the
EPSCA Cities, and the Mayors of the ValleyCom Cities shall each provide to the
Joint Board's Chair a written notice identifying the names of a primary
Representative and an alternative Representative (Alternate) who are authorized
to speak, vote and otherwise act on behalf of their respective Appointing Party or
group of Parties. Such notices shall include the name(s), contact information and
effective date(s) of the appointments.
4.2.5 An Alternate may only speak and vote on behalf of his/her Appointing
Party(ies) if: (a) the Chair has received written notice of the Alternate's
appointment; and (b) the primary Representative is absent from the meeting.
References in this Agreement to a "Representative" shall include an Alternate
who has been appointed in accordance with this Agreement and is acting in the
absence of the primary Representative.
4.2.6 The Appointing Party or group of Parties shall promptly replace any
vacancy in its positions of Representative and Alternate and may, at any time,
replace its Representative or Alternate by giving the Chair of the Joint Board
written notice of the change including: the name(s), contact information and
effective date(s) of the replacement(s).
4.2.7 Each Representative and each Alternate shall be an employee of his/her
Appointing Party(ies), ValleyCom or EPSCA. No Representative or Alternate
shall be deemed to be an employee of, or entitled to compensation from, any
Party other than his/her Appointing Party.
4.3 Quorum and Meeting Procedures
4.3.1 A quorum for a meeting of the Joint Board shall be all four (4) voting
Representatives and the Chair or his/her designee.
4. 3.2 The Joint Board shall establish procedures for its operations and meetings,
including the establishing of a regular monthly meeting schedule and location
and providing for the scheduling of special and emergency meetings. To the
extent allowed by Washington law, the Joint Board may establish procedures for
conducting meetings by telephonic or other electronic means provided that all
Representatives and members of the public are able to hear each other during
EXHIBIT A-10
RESOLUTION NO. 4 2 3 3
the meeting. If such procedures are established by the Joint Board, any
Representative participating in a meeting by such means is deemed to be
present at the meeting for all purposes including establishing a quorum.
4.3.3 The Joint Board shall take action by the unanimous vote of all four (4)
voting Representatives.
4.3.4 Representatives must be present at a meeting to vote and may not vote by
proxy.
4.3.5 The voting Representatives may select an acting Chair to serve in the
absence of the Chair or his/her designee.
4.3.6 The Joint Board shall comply with applicable requirements of the
Washington State Open Public Meetings Act (Chapter 42.30 RCW).
4.4 Joint Board Actions
4.4.1 The Joint Board shall oversee the implementation, operation and
maintenance of the PSERN System to the extent provided in this Agreement. In
furtherance of that oversight, the Joint Board is specifically authorized to take the
following actions:
a. Amend this Agreement including any exhibits;
b. Establish committees and advisory groups, including an advisory
operations board of emergency radio users, to perform activities related to
the PSERN Project or to provide reports or recommendations to the Joint
Board related to the PSERN Project;
c. Adopt and amend policies, business rules, procedures, standards and
guidelines related to the PSERN System including System access and
use, security, and System and Subscriber Radio maintenance, upgrading
and security;
d. Approve the Project Budget subject to County Council appropriation;
e. Approve contracts related to the Implementation Period;
f. Approve those leases related to the PSERN System for which the
monthly rent exceeds the per site monthly rent authorized in the Project
Budget;
g. Approve changes to PSERN System-related contracts if the cost of the
change exceeds the authority granted to the Project Director under the
Contracting Plan attached hereto and made a part hereof as Exhibit 1;
EXHIBIT A-11
RESOLUTION NO. 4 2 3 3
h. Approve the PSERN System design and any changes to same
affecting System performance;
i. Approve the issuance by the County to the PSERN Contractor of Notice
of Apparent Completion (NAC) of the following milestones:
(i) Milestone 3H: System Optimization and RF Coverage
Testing
(ii) Milestone 3J Operational and Functional System Test
(iii) Milestone 3K Pilot Test with 100 Users
(iv) Milestone 5C Full System Acceptance
j. Approve a transition plan that defines the tasks, responsibilities and
schedule for transitioning from the KCERCS to the PSERN System
including moving Dispatch Centers and User Agencies onto the PSERN
System;
k. Approve the County's entering into agreements with User Agencies
and Dispatch Centers establishing the terms and conditions for access to
and use of the PSERN System;
I. Approve such other actions as are specified under this Agreement as
being made by the Joint Board;
m. Delegate the Joint Board's authority under this Agreement subject to
such limitations and conditions as the Joint Board may establish; and
n. Approve a Party's request to withdraw from this Agreement and the
terms and conditions of such approval in accordance with Section 13.
4.4.2 The PSERN System-related contracts will require prompt review of
deliverables and notices of milestone completion. The Joint Board shall hold
special meetings as needed and take action in a timely manner so as to avoid
delay and other claims by PSERN System-related contractors.
4.5 Impasse Resolution Procedure
4.5.1 If a matter requiring Joint Board action is moved at a Joint Board meeting
but fails for lack of a unanimous vote by all four (4) Representatives, a voting
Representative may submit written notice of an impasse to the other
Representatives and the Joint Board Chair. The notice shall be submitted within
seven (7) days of the Board's last \'Ote on the matter and shall include a
statement of the action being sought and the history of any Joint Board
deliberation or vote(s) on the matter.
EXHIBIT A-12
RESOLUTION NO. 4 2 3 3
4.5.2 Within seven (7) days of receipt of a notice of impasse, the Chair or his/her
designee shall designate a mediator to assist the Joint Board in resolving the
impasse. The mediator shall be experienced in resolving disputes in public
sector capital projects and may not be an employee of any of the Parties.
4.5.3 The Parties agree that it is essential to the success of the PSERN Project
that any impasse be resolved as quickly as possible and accordingly agree to
instruct their respective Representatives to cooperate with the mediator in good
faith including expediting responses to any mediator requests for information and
discussion.
4.5.4 The mediator shall promptly investigate the impasse and the respective
positions of the voting Representatives. The mediator may recommend one or
more non-binding alternatives for resolving the impasse. Regardless of the
outcome of the mediation, each Party shall pay an equal percentage share of the
cost of the mediator's fees and expenses, if any. The County shall pay the
mediator and invoice each Party for its share. Each party shall pay the County
within thirty (30) days after receiving the invoice.
4.5.5 If the impasse is not resolved within ten (1 0) days of the mediator providing
his/her recommendation(s), the Elected Executives Committee (EEC) shall meet
with the Joint Board to attempt to resolve the impasse. The EEC shall be
composed of the King County Executive; the Mayor of the City of Seattle; one
elected official designated by the EPSCA Cities; and one elected official
designated by the ValleyCom Cities. The Joint Board and the EEC shall
convene to consider the matter and attempt to reach a resolution, which may
include re-submitting the matter for a Joint Board vote, not later than twenty (20)
days after the date the mediator provided his/her recommendation(s).
4.6 Emergency Procedures
Consistent with applicable Washington State law, the Joint Board may adopt
procedures for providing direction and decision-making in the event of emergencies that
have or may have direct, significant and material negative effects on the
implementation, operation and maintenance of the PSERN System when consideration
of such emergencies by the Joint Board could not occur in a timely manner, all as
determined by the Chair of the Joint Board. The procedures shall set forth how an
emergency is declared and who declares it. Such procedures may allow expedited
procurement and contracting procedures by the Project Director to address the
emergency, as may be permitted by Washington State law. Each decision made
pursuant to such procedures shall be communicated to the Parties as soon as
reasonably possible and shall be subject to ratification by the Joint Board in a regular or
special meeting within two (2) weeks after the finding of an emergency by the Chair of
the Joint Board.
4. 7 Record of Action
EXHIBIT A-13
RESOLUTION NO. 4 2 3 3
Actions by the Joint Board shall be memorialized in writing and signed by the Chair or
acting chair of the Joint Board. A copy of each action shall be distributed to each Joint
Board Representative and Alternate within ten (10) Business Days of the action.
4.8 Joint Board Administrative Support
The County shall provide administrative support for the Joint Board. The cost of
providing such support shall be covered by the PSERN Project Budget during the
Implementation Period and by the PSERN Operations Budget during the Operations
Period.
5.0 PSERN SYSTEM IMPLEMENTATION
5.1 Project Management
The County will be responsible for performing all Project management activities including:
a. all personnel actions related to the Project Director and other County
employees assigned to Project activities;
b. scheduling and management of day-to-day Project activities;
c. developing a Project Budget and obtaining County Council
appropriation(s), approving expenditures, and tracking expenditures
against the Project Budget including its contingency;
d. developing, tracking, and updating all required Project documentation;
e. developing and performing all financial, accounting and inventory-
control processes including establishing a Project Fund to receive levy
and bond proceeds, processing invoices and making payments and
distributions from the Project Fund, responding to audits, and tracking the
receipt and distribution of equipment and other deliverables in accordance
with applicable laws, regulations and policies;
f. developing and implementing a transition plan for Joint Board approval;
g. coordinating PSERN Project activities with the Parties and the
KCERCS's users; and
h. providing regular reports to the Joint Board on the Project's activities
during the Implementation Period.
5.2 Contracting and Equipment Ownership
5.2.1 Subject to Joint Board approval, the County will procure, execute and administer
all contracts, licenses and agreements related to the planning, analysis, design,
EXHIBIT A-14
RESOLUTION NO. 4 2 3 3
development, installation, construction and testing of the equipment, software, facilities,
improvements and other elements of the PSERN System.
5.2.2 The Project Director shall be responsible for contract procurement and contract
administration activities in accordance with Exhibit 1 and any emergency contracting
procedures approved by the Joint Board.
5.2.3 As the Party entering into the contract(s), the County will become the owner of
the delivered PSERN System equipment except as provided in Section 7 for Subscriber
Radios. The County will transfer said ownership to the new PSERN Operator formed
under the PSERN Operations ILA in accordance with Section 9.
5.3 PSERN System Sites
5.3.1 Subject to Joint Board approval if required under Section 4.4.1 (f), the County will
enter into leases and other arrangements to acquire the rights, for itself and its
contractors, successors and assigns, to access, install, use, develop, or construct
towers, structures, equipment, facilities and other improvements as needed for PSERN
System implementation.
5.3.2 The PSERN System sites identified in the List of Party Owned/Controlled
Sites, attached hereto and made a part hereof as Exhibit 2, are controlled directly
or indirectly by those Parties as indicated therein. If and to the extent a Party's
interest permits, each such listed Party agrees to enter into a lease(s),
assignment or other appropriate agreement with the County to permit the use by
the PSERN System of the listed site(s) under its control on terms and conditions
no worse than the best terms and conditions (for the lessee) that are then
applicable in a comparable lease, license or agreement with another
governmental entity. Consideration for such a lease may be provided as a cash
payment, credit, or reciprocal benefit.
5.3.3 If during the PSERN System design process, other potential locations for
PSERN System equipment or facilities are identified on any land or any
improvement (such as buildings and towers) in which any Party has an
ownership or tenancy interest, or otherwise controls, directly or indirectly through
EPSCA or ValleyCom, then subject to any legal limitations, such Party agrees to
enter into a lease(s), assignment or other appropriate agreement with the County
to permit the use of such land or improvements by the PSERN System.
Notwithstanding the forgoing, a Party shall not be required to enter into any
lease, assignment, or other agreement that impairs a Party's right and ability to
use the equipment or facilities as necessary for KCERCS or the Party's own
purposes. The land and improvements shall be offered to the County:
a. with a right of first refusal; and
b. on terms and conditions no worse than the best terms and
conditions (for the lessee) that are then applicable in a comparable
lease, license or assignment with another governmental entity.
EXHIBIT A-15
RESOLUTION NO. 4 2 33
Consideration for such a lease may be provided as a cash
payment, credit, or reciprocal benefit.
5.3.4 Nothing in this Agreement shall require a Party, ValleyCom, or EPSCA to
terminate or interfere with an existing lease or use of land or improvements.
5.3.5 The Parties will cooperate with the County in fulfilling its role and responsibilities
under this Agreement. Without limiting the foregoing, the EPSCA Cities and the
ValleyCom Cities shall propose and support measures at the EPSCA and ValleyCom
boards, respectively, as necessary to effect the purposes and intent of this Section 5.3
and to the extent permitted by law.
5.4 Frequencies
5.4.1 The Parties agree that they will cooperate with the County in any Federal
Communications Commission process or application necessary to make available, or
cause to be made available, for use in the PSERN System the licensed frequencies
identified in the List of Frequencies attached hereto and made a part hereof as listed in
Exhibit 3. As part of the PSERN System design process, the Parties agree to cooperate
in the development of PSERN Frequency Plans including agreeing to relicensing
frequencies from the sites in which they are currently used to other sites in the PSERN
System. Further, the Parties will consent to use of frequencies by the County and the
PSERN Contractor under the design standards of the PSERN System.
5.4.2 The Parties will cooperate with the County in fulfilling its role and responsibilities
under this Agreement. Without limiting the foregoing, the EPSCA Cities and the
ValleyCom Cities shall propose and support measures at the EPSCA and ValleyCom
boards, respectively, as necessary to effect the purposes and intent of this Section 5.4.
5.4.3 In the event a Party withdraws or otherwise terminates its participation in this
Agreement and the PSERN System, it shall surrender all rights and interests it may have
or claim to have in any frequencies determined by the Joint Board to be necessary for
the PSERN System. The provisions and obligations of this Section 5.4 shall survive any
termination of, or a Party's withdrawal from, this Agreement.
5.4.4 As more fully described in the PSERN Operations ILA, the Parties agree to take
all steps necessary to ensure that all spectrum used in the PSERN System is transferred
to and licensed in the name of the PSERN Operator to which ownership of the PSERN
System is transferred after FSA. Said transfer and re-licensing shall be effected within
sixty (60) days after ownership of the PSERN System has been transferred to the
PSERN Operator.
5.4.5 Any frequencies currently used in KCERCS which are not reused in the PSERN
System shall remain in the name of the original licensee under KCERCS and shall not
be transferred to the PSERN Operator.
5.4.6 If the PSERN Project is terminated prior to FSA, or if following FSA the PSERN
System is abolished in its entirety, the PSERN Operator (or if it has not yet been
created, the County) will take all steps necessary to transfer the frequencies surrendered
pursuant to this Section 5.4 back to each of the Parties, EPSCA, and ValleyCom, and/or
their successors.
EXHIBIT A-16
RESOLUTION NO. 4 2 3 3
5.5 Transition from KCERCS to the PSERN System
5.5.1 The Parties agree to continue to operate and maintain the central switch, sub-
systems and other elements of KCERCS to the extent the Parties directly or indirectly
control such elements until the issuance of FSA of the PSERN System or such other
time as the Joint Board approves. Nothing in this Agreement shall be interpreted to
require a Party to undertake any action that would adversely and materially impact a
Party's ability to operate KCERCS as necessary for public safety through the
Implementation Period.
5.5.2 The Parties shall cooperate with each other in implementing the transition from the
KCERCS to the PSERN System including:
a. moving or removing, or causing/permitting such moving or removing, of
KCERCS equipment to accommodate the installation of PSERN System
equipment;
b. consenting to the use by the County of frequency licenses for use in the
PSERN System during the Implementation Period and until the licenses are
transferred to the PSERN Operator, by:
(1) executing letters of concurrence allowing the County to be a co-
licensee for those frequencies during the Implementation Period; and
(2) unlicensing those frequencies used by PSERN; and
c. timely performance of all applicable tasks and responsibilities specified in the
Transition Plan adopted by the Joint Board.
5.5.3 The County will serve as the PSERN System manager and enter into preliminary
agreements with Dispatch Centers and User Agencies establishing the terms and
conditions for their transition to and use of the PSERN System, as more fully described
in Sections 6 and 7.
5.5.4 Through their direct or indirect participation on the KCERCS's Regional
Communications Board, the Parties agree to take such actions as are necessary to
effect the purposes of this section and any other matter necessary to the transition from
the KCERCS to the PSERN System.
5.6 Decommissioning of KCERCS
It is expected that through the PSERN Project, all KCERCS equipment will be decommissioned
and removed. However, to the extent KCERCS equipment is not decommissioned and
removed due to a decision by the Joint Board or a Party, the Parties shall be responsible for
decommissioning the elements of the KCERCS that they own or are owned by entities in which
they participate.
6.0 DISPATCH CENTER EQUIPMENT IMPLEMENTATION
EXHIBIT A-17
RESOLUTION NO. 4 2 3 3
6.1 Dispatch Center Equipment
The PSERN Project Budget will fund the purchase of certain PSERN System equipment
that will be installed at Dispatch Centers in King County in a like-for-like exchange of
existing KCERCS-related equipment in order to enable the Dispatch Centers to access
and use the PSERN System. The County shall be the owner of said PSERN System
equipment during the Implementation Period and will transfer ownership to the PSERN
Operator as provided in Section 9.
6.2 Dispatch Center Agreements
As a condition of using said new equipment and the PSERN System, each Dispatch
Center shall be required to enter into a Dispatch Center Agreement with the County or
the PSERN Operator. Neither the County nor the PSERN Operator may deny consoles
or console service to any Dispatch Center that enters into and complies with the
provisions of a Dispatch Center Agreement. The Dispatch Center shall include, among
others terms, the following:
a. a grant by the Dispatch Center to the County and its successors and
assigns for the space, access rights, power, fiber connections, internet
access and other resources necessary for the County and its contractors
to deliver, store, install, test, operate and maintain PSERN System
equipment;
b. the quantities and types of equipment that will be funded by the
PSERN Project Budget and installed at the Dispatch Center;
c. the schedule and locations for installation and testing of said equipment
and training users;
d. the provision that the County or PSERN Operator, as appropriate, will
provide maintenance, updates, and upgrades to consoles for as long as
they shall remain in service and owned by the County or the PSERN
Operator;
e. the process for repairing/replacing/upgrading equipment;
f. the obligations for the Dispatch Center to pay the user fees and other
costs of connecting to the PSERN System during the Operations Period;
g. the Dispatch Center is responsible for theft, damage or other loss after
delivery of equipment to the Dispatch Center's facility; and
h. a commitment by the Dispatch Center to execute a novation replacing
the County with the new PSERN Operator for the Operations Period.
If a Party or entity is both a Dispatch Center and a User Agency, the above provisions
may be addressed in a single Dispatch Center/User Agency Agreement.
EXHIBIT A-18
RESOLUTION NO. 4233
7.0 SUBSCRIBER RADIO EQUIPMENT IMPLEMENTATION
7.1 County Purchase of Initial Order of Subscriber Radios
Pursuant to an executed User Agency Agreement as provided in Section 7.4, the
County will purchase initial orders of Subscriber Radios on behalf of all User Agencies.
Ownership of said County-purchased Subscriber Radios will be transferred to the User
Agencies following FSA. User Agencies may enter into "piggyback" contracts with the
PSERN Contractor for the direct purchase of additional Subscriber Radios.
7.2 Project Funding for Certain Subscriber Radios
The PSERN Project Budget will be used to fund the initial order of certain types of
Subscriber Radios and accessories for the User Agencies identified in the List of User
Agencies Eligible for Radio Exchanges, which is attached hereto and made a part
hereof as Exhibit 5. A User Agency listed in Exhibit 5 shall be eligible to receive a
Project-funded Subscriber Radio and a kit of standard accessories in exchange for a
trade-in radio used in the KCERCS, provided that each trade-in radio:
a. was an active radio in the KCERCS zone controller within thirty (30)
days prior to the date of the exchange; and
b. is an operable radio at the time of the exchange.
The new Subscriber Radio funded by the Project Budget shall be the type of radio as
listed in Exhibit 5 that is the nearest equivalent to the trade-in radio.
7.3 Payments by User Agencies
7.3.1 A User Agency that is listed on Exhibit 5 shall pay the County for the
added costs of any Subscriber Radios, features and accessories that are not
covered by the Project Budget under Section 7.2.
7.3.2 A User Agency that is not listed in Exhibit 5 shall pay the County for the full
cost, including taxes, of any Subscriber Radio purchased by the County on its
behalf.
7.3.3 The County shall establish the method and timing of such payments in
advance of placing an order with the PSERN Contractor.
7.4 User Agency Agreements
No User Agency may register or use a radio or other device on PSERN unless it has
entered into a User Agency Agreement with the County or the PSERN Operator.
Neither the County nor the PSERN Operator may deny radios or radio service to any
agency permitted to be licensed in the 800 MHz Public Safety Radio Spectrum pursuant to 47
C.F.R. Part 90 if that agency enters into and complies with the provisions of a User
EXHIBIT A-19
RESOLUTION NO. 4 2 3 3
Agency Agreement. The User Agency Agreements shall include, among other terms,
the following:
a. the quantities and types of Subscriber Radios that will be funded by the
PSERN Project Budget and the amounts to be paid by the User Agency;
b. designation of the User Agency's status (primary or secondary) and
priorities at the talkgroup level;
c. a grant of all space, access rights, power and other resources
necessary for the County and its contractors to deliver, store, install, and
test Subscriber Radios;
d. the schedule and locations for installation and testing of Subscriber
Radios and user training;
e. the central management of encryption keys and the template for
programming User Agency radios;
f. the prohibition with applicable timeframes on a User Agency's re-sale or
transfer of any Subscriber Radios and the requirements for tracking and
reporting all Subscriber Radios to the County;
g. the terms for use of the System including acceptable equipment
models and features, protocols, maintenance standards and other
conditions;
h. the process for repairing/replacing Project-funded Subscriber Radios
through the end of the warranty period;
i. the obligations for the User Agency to pay the user fees and other costs
of connecting to the PSERN System during the Operations Period;
j. the User Agency is responsible for theft, damage or other loss after
delivery of equipment to the User Agency's facility; and
k. a commitment by the User Agency to execute a novation replacing the
County with the new PSERN Operator for the Operations Period.
8.0 PSERN PROJECT BUDGET FOR IMPLEMENTATION PERIOD
8.1 Funding of Project Budget
The PSERN Project Budget will be funded by proceeds from a County-wide property tax levy
and, as needed, proceeds from bond or other debt instruments issued by the County. The
reimbursement and other payments provided under this Section are conditioned upon voter-
approval of the funding levy and the County Council's adoption of an appropriation for the
PSERN Project Budget. Except as provided in this Agreement or by action of the Joint Board,
EXHIBIT A-20
RESOLUTION NO. 4233
the City of Seattle, the EPSCA Cities, and ValleyCom Cities shall not be required to reimburse
the PSERN Project Budget or the County for costs incurred during the Implementation Period.
8.2 Elective Contract Change
8.2.1 Any Contract Change determined by the Project Director to be elective, must be
approved in advance by the Joint Board. The Joint Board may approve the Contract
Change either as an Elective Contract Change or if the Joint Board determines the
change is not elective, as a Contract Change. At the time the Joint Board approves an
Elective Contract Change, it shall also approve a reimbursement allocation for the cost
of the Elective Contract Change to be paid by one or more Parties in the event the
Project Budget is insufficient to cover some or all of the cost of the Elective Contract
Change as described in Section 8.2.2 below.
8.2.2 At the end of the Implementation Period, if the PSERN Project Budget is
insufficient to pay the reimbursements and payments provided in this Section 8,
the Parties shall reimburse the PSERN Project Budget for all Elective Contract
Changes according to the allocations approved by the Joint Board, up to the
amount of the budget shortfall beginning with the first adopted Elective Contract
Change and proceeding in chronological order.
8.3 Reimbursement of Planning Phase Costs
8.3.1 The County shall use the Project Budget to reimburse itself, the City of Seattle,
EPSCA and ValleyCom for the following costs incurred from August 1, 2012, through the
start of the Implementation Period:
a. the costs of staff labor hours expended on planning, analysis, procurement,
legal and other PSERN System-related activities; and
b. the costs of technical, financial, consultant, legal and other contractor services
related to the PSERN System.
Reimbursement of labor hours shall be at the applicable hourly, monthly or annual rate
that is used in the normal course when the employee's time is charged for other
purposes. Reimbursement for contractor services shall be at the reasonable, actual
amount paid by the agency seeking reimbursement.
8.3.2 Requests for reimbursement under this Section 8.2 may be submitted to the
County after the County Council's adoption of a PSERN Project Budget and
appropriation.
8.3.3 Requests shall be submitted on a form prescribed by the County and be
accompanied by such documentation as the County may require including time records
and invoices.
8.4 Administrative, Election and Financing Costs
The Project Budget shall cover the County's costs of providing administrative support to the
Joint Board and the election, legal, financing, administration and other costs associated with the
levy and the issuance of any bonds or other debt financing.
EXHIBIT A-21
RESOLUTION NO. 4 2 3 3
8.5 Reimbursement of Implementation Period Costs
8.5.1 The Project Budget shall cover all of the County's costs incurred during the
Implementation Period including:
a. payments to the PSERN Contractor and other contractors
b. County labor and internal charges
c. rents, fees and other costs related to real property access and
development activities
d. insurance
e. equipment, tools, technology, devices, vehicles and supplies
f. travel
g. training
h. fuel
i. freight
j. utilities
k. security systems and services
I. road maintenance
m. cost of claims, litigation and related legal and other expenses.
8.5.2 The County shall use the Project Budget to reimburse the City of Seattle, EPSCA
and ValleyCom for the costs of staff labor hours expended during the Implementation
Period on the following PSERN System-related activities:
a. preparation for and participation at Joint Board and technical committee
meetings;
b. witnessing the PSERN Contractor's factory testing, field testing of
infrastructure and coverage testing; and
c. escorting PSERN Contractor personnel to sites at which the City of Seattle,
EPSCA or ValleyCom have current KCERCS maintenance responsibilities.
Reimbursement of labor hours shall be at the applicable hourly, monthly or annual rate
that is used in the normal course when the employee's time is charged for other
purposes. Requests for reimbursement shall be submitted on a calendar quarter basis
following the County Council's adoption of an appropriation for the PSERN Project
Budget. Failure to submit a request within sixty (60) days after the end of a calendar
quarter shall constitute a waiver of any reimbursement for cost incurred in said quarter.
Requests shall be submitted on a form prescribed by the County and be accompanied
by such documentation as the County may require including time records and invoices.
8.6 Subscriber Radio Purchases
The Project Budget will be used to fund the initial order of certain types of Subscriber Radios
and accessories as provided in Section 7.
8. 7 PSERN Operator's Start-up Costs
Upon creation of a new PSERN Operator as provided in Section 9.1, the County shall pay to
said PSERN Operator the amount specified in the Project Budget for the new PSERN
EXHIBIT A-22
RESOLUTION NO. 4233
Operator's pre-FSA expenses for start-up activities under Section 9.2 and the Operations Period
I LA.
8.8 System Transition Stabilization Fund
The County shall, within the Project Budget, create a PSERN System Transition Stabilization
Fund in the amount of $ , the purpose of which shall be to reduce and phase in the
impact of increased rates on PSERN System User Agencies and Dispatch Centers. By March
31 of the year prior to the expected date for FSA as projected by the Project Manager, the Joint
Board shall adopt a System Transition Stabilization Fund plan. The plan may include
stabilization funding for some or all User Agencies and Dispatch Centers whose rate under the
PSERN System in the first three years after FSA will be higher than in 2015 under KCERCS.
9.0 TRANSFER OF SYSTEM FOR OPERATIONS PERIOD
9.1 Creation of a new PSERN Operator
Not later than one year prior to the expected date for FSA as projected by the Project Manager,
the Parties shall create and establish a non-profit corporation as authorized under RCW
39.34.030 to own, operate, maintain, manage and upgrade/replace the PSERN System during
the Operations Period.
9.2 Start-up of PSERN Operator
As provided in the Operations Period ILA, the Parties shall cause said new PSERN
Operator to hire an Executive Director and staff, train staff, establish facilities, contract
for goods and services, install systems and undertake all other steps necessary for the
PSERN Operator to be able to accept the transfer of the PSERN System from the
County and be fully responsible for the Operations Period upon issuance of FSA by the
Joint Board.
9.3 Transfer and Novation Agreements
The Parties shall cause the PSERN Operator to enter into agreements with the County
and third parties that effect the following upon FSA and after the County has determined
and notified the Parties that all Implementation Period activities have been completed:
a. transfer all PSERN System-related equipment (other than subscriber
radios as provided in Section 7.0); and
b. the novation of the contract with the PSERN Contractor, the Dispatch
Center and User Agency Agreements and all licenses, leases and other
contracts and agreements related to the PSERN System.
The Parties intend and agree that the PSERN Operator shall be deemed to be the
successor to the County for all PSERN System purposes and shall assume all of the
EXHIBIT A-23
RESOLUTION NO. 4 2 3 3
County's rights, responsibilities and liabilities under said contracts, licenses, leases and
agreements.
10.0 OPERATIONS AND MAINTENANCE PENDING TRANSFER
10.1 Interim Operations
If the transfer of the PSERN System is not completed as provided in Section 9.0 above
and the PSERN Operations Period ILA, then the County may continue to operate and
maintain the PSERN System after FSA.
10.2 Cost Allocation Model
1 0.2.1 In the event the transfer to a new PSERN Operator has not occurred and
if the County continues to act as the lead for operations and maintenance beyond
FSA, the County will be paid monthly user rates by each Dispatch Center and
User Agency, based on the Cost Allocation Model, until the transfer occurs and
the County has closed out its role and incurs no more costs.
1 0.2.2 The Cost Allocation Model shall be applied to an annual Operations
Budget developed by either the County or the PSERN Operator for each
calendar year of Operations after FSA. The Dispatch Center and User Agency
rates shall be recalculated annually to reflect cost changes from January 1
through December 31 of each year, and shall be included in the Operations
Budget, which shall be subject to approval by the Joint Board.
1 0.2.3 By May 1 of each year, the County or PSERN Operator shall calculate
the share of costs to be billed to the Dispatch Centers and User Agencies in
accordance with the Cost Allocation Model and Operations Budget in the coming
year and transmit that information to each Dispatch Center and User Agency.
10.3 The County shall collect fees in accordance with the Dispatch Center and User
Agency Agreements.
11.0 INTELLECTUAL PROPERTY, CONFIDENTIAL INFORMATION AND
RECORDS
11.1 Intellectual Property
The Parties may be provided with products, documents or other deliverables related to
the PSERN System that are the subject of copyright, trade secret and other intellectual
property rights of, or claims of such rights. Each Party agrees that it will exercise any
intellectual property license rights in accordance with the license provisions of the
County Contract and any other applicable licenses so long as the Party has prior notice
of the license requirements.
EXHIBIT A-24
RESOLUTION NO. 4233
11.2 Confidential Information
11.2.1 Each Party agrees that it will: (a) limit the distribution of Confidential
Information to those employees, contractors or other persons who have a
reasonable business need to know such information; and (b) take all reasonable
care, and not less than the care the Party applies to its own confidential
information, to prevent unauthorized use or disclosure of Confidential
Information. Each Party agrees that it will not use, copy, convey or disclose any
Confidential Information to any other person or entity unless expressly authorized
in writing by the person that provided the Confidential Information or as may be
required by law.
11.2.2 Such care shall include: (a) requiring such employees, contractors or
other persons to sign a nondisclosure agreement; (b) requiring any contractors to
also undertake reasonable protection measures; and (c) promptly enforcing any
violations of such agreements.
11.3 Records.
11.3.1 Each Party shall keep records as required by state law and in
accordance with such policies, procedures and retention schedules as may be
established by the Joint Board. To the extent permitted by law, all records,
accounts and documents relating to matters covered by this Agreement shall be
subject to inspection, copying, review or audit by the Washington State Auditor or
any Party. Upon reasonable notice, during normal working hours, each Party
shall provide auditors from the Washington State Auditor or the other Parties with
access to its facilities for copying said records at their expense.
11.3.2 Each Partv shall be responsible for responding to public disclosure
requests addressed to it in accordance with the Washington Public Records
Act, Chapter 42.56 RCW, and such procedures as mav be established by the
Joint Board. If a Party receives a public records request for records related to
the PSERN System, the Party receiving the request shall promptly notify the
Project Director and the Joint Board. Absent agreement by the Parties on other
arrangements, the Party receiving the request shall remain responsible for
responding to the requester. In the event a request for records is addressed to
the Joint Board but specifies records of a single Party, such Party shall assume
responsibility for responding to the request. In the event a request for records is
addressed to the Joint Board but does not specify records of a single Party, the
County shall assume responsibility for coordinating the Parties' response to the
request.
11.3.3 If the requested records include any Confidential Information, the Party receiving
the request shall promptly notify the Party or other person or entity that designated the
information as Confidential Information. Any Party receiving a public records request
that includes Confidential Information shall not disclose the Confidential Information for
ten (1 0) business days in order to give the affected Party or third party the opportunity to
take whatever action they deem necessary to protect their interests before disclosure of
EXHIBIT A-25
RESOLUTION NO. 4 2 3 3
the Confidential Information. A Party receiving a public disclosure request shall not be
required to take any legal action in order to prevent disclosure of Confidential
Information, nor shall a Party incur any liability to any other Party for disclosing
Confidential Information in response to a public disclosure request so long as the
disclosing Party has complied with the provisions of this Section 11.
12.0 FORCE MAJEURE
Acts of nature, acts of civil or military authorities, acts of war, terrorism, fire, accidents,
shutdowns for purpose of emergency repairs, strikes and other labor disruptions, and other
industrial, civil or public disturbances that are not reasonably within the control of a Party
causing the Party's inability to perform an obligation under this Agreement are "Force Majeure
Events." If any Party is rendered unable, wholly or in part, by a Force Majeure Event, to perform
or comply with any obligation or condition of this Agreement, such obligation or condition shall
be suspended for the time and to the extent reasonably necessary to allow for performance and
compliance and restoration of normal operations.
13.0 TERMINATION OF AGREEMENT; WITHDRAWAL AND REMOVAL OF
A PARTY
13.1 Termination of Agreement by Joint Board.
The Joint Board may terminate this Agreement in its entirety by the unanimous affirmative vote
of all voting Representatives.
13.2 Withdrawal of a Party.
13.2.1 In the event that a Party desires to withdraw from this Agreement, it shall
give written notice to the Joint Board including its reasons therefor, a description
of the probable impacts on the other Parties, a description of the probable
impacts to the scope, schedule and budget of the PSERN Project and a
proposed withdrawal work plan that will identify all necessary actions which need
to be undertaken to effect the withdrawal.
13.2.2 Upon receipt of the above-described notice and information, the Joint
Board will consider the request for withdrawal. The Joint Board may in its sole
discretion approve a Party's request to withdraw from this Agreement and
establish any terms and conditions for approval. Approval requires a unanimous
vote of all voting Representatives on the Joint Board.
13.2.3 A Party that is permitted to withdraw shall remain responsible for any
obligations that arose prior to the effective date of the withdrawal and for any that
are specified under Section 15.14 as surviving a withdrawal. A withdrawing Party
shall be solely liable for any actual costs to the other Parties arising out of or
resulting from the withdrawal. Any such costs or other amounts owed under this
Agreement by a withdrawing Party shall be paid prior to the effective date of the
EXHIBIT A-26
RESOLUTION NO. 4 2 3 3
withdrawal or, if such amounts are not yet established, then within thirty (30)
days after the amount is established.
14.0 LEGAL RELA liONS
14.1 Independent Contractors and No Third Party Beneficiaries
14.1.1 Each party to this Agreement is an independent contractor with respect to
the subject matter herein. No joint venture or partnership is formed as a result of
this Agreement.
14.1.2 Nothing in this Agreement shall make any employee of one Party an
employee of another party for any purpose, including, but not limited to, for
withholding of taxes, payment of benefits, worker's compensation pursuant to
Title 51 RCW, or any other rights or privileges accorded by virtue of their
employment. No Party assumes any responsibility for the payment of any
compensation, fees, wages, benefits or taxes to or on behalf of any other Party's
employees. No employees or agents of one Party shall be deemed, or represent
themselves to be, employees of another Party.
14.1.3 It is understood and agreed that this Agreement is solely for the benefit of
the Parties, ValleyCom and EPSCA and gives no right to any other person or
entity.
14.2 Claims Arising from the Joint Board's Acts or Omissions
The Parties agree to share the cost, including the costs of defense, in the event of any
claim, lawsuit, demand, judgment, award or liability of any kind against the Joint Board,
any Party, ValleyCom or EPSCA and their respective officials and employees
("Ciaim(s)") arising out of, or in any way resulting from: (a) a Joint Board action or
failure to act; or (b) the County's acts or omissions arising from a Joint Board action or
failure to act. The Parties agree to share the costs arising from such a Claim(s),
including the costs of defense in the following percentages:
a. King County shall be liable for 25%;
b. City of Seattle shall be liable for 25%;
c. the EPSCA Cities shall be jointly and severally liable for 25%; and
d. the ValleyCom Cities shall be jointly and severally liable for 25%
The Parties agree to cooperate with each other as necessary in responding to and
defending against all such Claims, which may include developing a joint defense plan.
14.3 Other Claims
EXHIBIT A-27
RESOLUTION NO. 4233
Except for a Claim covered by Section 14.2, each Party to this Agreement shall protect,
defend, indemnify, and save harmless the other Parties and their respective officials
and employees, from any and all Claims, arising out of, or in any way resulting from, the
indemnifying Party's negligent acts or omissions. No Party will be required to indemnify,
defend, or save harmless any other Party if the claim, suit, or action for injuries, death,
or damages is caused by the sole negligence of another Party. Where such claims,
suits, or actions result from concurrent negligence of two or more Parties, the indemnity
provisions provided herein shall be valid and enforceable only to the extent of each
Party's own negligence. Each of the Parties agrees that its obligations under this
subparagraph extend to any claim, demand, and/or cause of action brought by, or on
behalf of, any of its employees or agents. For this purpose, each of the Parties, by
mutual negotiation, hereby waives, with respect to each of the other Parties only, any
immunity that would otherwise be available against such claims under the Industrial
Insurance provisions of Title 51 RCW.
14.4 Waiver of Consequential and Certain Other Damages
ALTHOUGH EACH PARTY ACKNOWLEDGES THE POSSIBILITY OF SUCH LOSSES OR
DAMAGES, EACH PARTY AGREES TO WAIVE ALL CLAIMS AGAINST EPSCA,
VALLEYCOM, THE OTHER PARTIES, AND THEIR RESPECTIVE OFFICALS AND
EMPLOYEES FOR ANY: COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME,
DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR
ARISING FROM THIS AGREEMENT, PROVIDED THAT THIS SECTION SHALL ONLY APPLY
TO CLAIMS BETWEEN AND AMONG THE PARTIES, EPSCA AND VALLEYCOM, AND
SHALL NOT BE INTERPRETED TO LIMIT ANY CLAIMS BROUGHT PURSUANT TO
SECTION 14.3.
14.5 In the event that any of the Parties or combination of the Parties incurs any
judgment, award, and/or cost arising therefrom, including attorney fees, to enforce the
provisions of this Section 14, all such fees, expenses, and costs shall be recoverable
from the responsible Party or combination of the Parties to the extent of that
Party's/those Parties' culpability.
14.6 The provisions of this Section 14 shall survive the expiration or termination of this
Agreement.
15.0 GENERAL
15.1 Filing of Agreement
Pursuant to RCW 39.34.040, prior to its entry into force, this Agreement shall be filed
with the King County Recorder's Office or, alternatively, listed by subject on a Party's
web site or other electronically retrievable public source.
15.2 Time of the Essence
EXHIBIT A-28
RESOLUTION NO. 4233
The Parties recognize that time is of the essence in the performance of the provisions of
this Agreement.
15.3 Specific Performance
In the event a Party fails to perform an obligation under this Agreement, the other
Parties or any one of them shall have the right to bring an action for specific
performance, damages and any other remedies available under this Agreement, at law
or in equity.
15.4 No Waiver
No term or provision of this Agreement shall be deemed waived and no breach excused
unless such waiver or consent shall be in writing and signed by the Party or Parties
claimed to have waived or consented. Waiver of any default of this Agreement shall not
be deemed a waiver of any subsequent default. Waiver of breach of any provision of
this Agreement shall not be deemed to be a waiver of any other or subsequent breach.
Waiver of such default and waiver of such breach shall not be construed to be a
modification of the terms of this Agreement unless stated to be such through written
approval of all Parties.
15.5 Parties Not Relieved of Statutory Obligations
Pursuant to RCW 39.34.030(5), this Agreement shall not relieve any Party of any
obligation or responsibility imposed upon it by law except that to the extent of actual and
timely performance thereof by the Joint Board, the performance may be offered in
satisfaction of the obligation or responsibility.
15.6 Nondiscrimination
The Parties shall comply with the nondiscrimination requirements of applicable federal,
state and local statutes and regulations.
15.7 No Assignment
No Party shall transfer or assign a portion or all of its responsibilities or rights under this
Agreement, except with the prior authorization of the Joint Board.
15.8 Dispute Resolution
If one or more Parties believes another Party has failed to comply with the terms of this
Agreement, the affected Parties shall attempt to resolve the matter informally. If the
Parties are unable to resolve the matter informally, any Party may submit the matter to
mediation in accordance with the process provided in Section 4.5. If the Parties submit
the matter to mediation and the matter is not resolved, then the aggrieved Party shall be
entitled to pursue any legal remedy available.
15.9 Entire Agreement
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RESOLUTION NO. 4 2 33
The Parties agree that this Agreement, including any attached exhibits, constitutes a
single, integrated, written contract expressing the entire understanding and agreement
between the Parties. No other agreement, written or oral, expressed or implied, exists
between the Parties with respect to the subject matter of this Agreement, and the
Parties declare and represent that no promise, inducement, or other agreement not
expressly contained in this Agreement has been made conferring any benefit upon
them.
15.10 Amendment Only In Writing
This Agreement may be amended by action of the Joint Board in accordance with
Section 4.4.1.
15.11 Notices
15.11.1 Any notice under this Agreement shall be in writing and shall be
addressed to the Chair of the Joint Board, the Project Director and to each
Party's Representative. Any notice may be given by certified mail, overnight
delivery, facsimile telegram, or personal delivery. Notice is deemed given when
delivered. Email may be used for notice that does not allege a breach or dispute
under this Agreement.
15.11.2 The names and contact information set forth in Contact Information,
attached hereto and made a part hereof as Exhibit 6, shall apply until amended
in writing by a Party providing new contact information to each other Party.
15.12 Choice of Law; Venue
This Agreement and any rights, remedies, and/or obligations provided for in this Agreement
shall be governed, construed, and enforced in accordance with the substantive and procedural
laws of the State of Washington. The Parties agree that the Superior Court of King County,
Washington shall have exclusive jurisdiction and venue over any legal action arising under this
Agreement.
15.13 Severability
The provisions of this Agreement are severable. If any portion, provision, or part of this
Agreement is held, determined, or adjudicated by a court of competent jurisdiction to be
invalid, unenforceable, or void for any reason whatsoever, each such portion, provision,
or part shall be severed from the remaining portions, provisions, or parts of this
Agreement and the remaining provisions shall remain in full force and effect.
15.14 Survival Provisions
The following provisions shall survive and remain applicable to each of the Parties
notwithstanding any termination or expiration of this Agreement and notwithstanding a
Party's withdrawal from this Agreement.
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RESOLUTION NO. 4 2 3 3
Section 11 Intellectual Property, Confidential Information and Records
Section 14 Legal Relations
Section 15.12 Choice of Law; Venue
Additionally, unless otherwise determined by the Joint Board, Sections 5.3 and 5.4 shall
survive a Party's withdrawal from this Agreement.
15.15 Counterparts
This Agreement shall be executed in counterparts, any one of which shall be deemed to
be an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, authorized representatives of the Parties have signed their
names in the spaces provided below.
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