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HomeMy WebLinkAboutMemorandum of Agreementr{¡ KING COUNTY I 200 Ki ng County Courthouse 516 'l'hird Avcnuc Seattle, WA 98 104 t 2 3 4 5 6 7 8 9 Signature Report Klng County June 29,2015 Ordinance 18074 Proposed No. 2015-0045,3 Sponsors AN ORDINANCE authorizing the King County executivç to enter into and implement a memorandum of agreement with the cities of Auburn, Bellevue, Federal Way, Issaquah, Kent, Kirkland, Mercer Island, Redmond, Renton, Seattle and Tukwila, relating to the ownership, governance and management of the Puget Sound emergency radio network after construction. STATEMENT OF FAC'|S: L King County currently has a countywide emergency public safety radio network. The King County Emergency Radio Communication System ("the KCERCS") that supports over sixteen thousand radios and over one hundred separate police, fire, emergency medical and other government agencies. 2. .The KCERCS was funded by a countywide ballot measure placed on the ballot by the council's adoption of Ordinance 10464, and approved by the voters of King County in September 1992. 3. Portions of the KCERCS are separately owned by the Eastside Public Safety Communications Agency, the Valley Communications Center, 10 t4 1.1. 12 13 L5 1,6 t7 18 T Ord nance 18074 Seattle, and King County (collectively "the coowners") with a jointly owned switch controlling the entire network. 4. The KCERCS is approaching twenty years old, and is increasingly requiring repairs. 5. The KCERCS 's vendor has stated that it will stop supplying replacement parts and repairing used parts for the network by December 31,2018. King County must replace the network or risk performance degradation. 6. The council previously established a capital improvement project to plan for the network's replacement. 7. Executive staff has been working with the KCERC's users and the coowners to plan its replacement with a new network to be called the Puget Sound emergency radio network ("the PSERN"), and to plan PSERN's ownership, governanae and management after it is constructed. 8. If the council adopts an ordinance placing a funding measure on the ballot and the voters approve such a measure, the project would deploy a new PSERN infrastructure and replace the subscriber units and dispatch consoles currently in use, 9. The cities of Auburn, Bellevue, Federal V/ay, Issaquah, Kent, Kirkland, Mercer Island, Redmond, Renton, Seattle and Tukwila and King County ("the parties") have negotiated and the executive has transmitted to council a proposed interlocal agreement that designates King County as the lead agency for planning, procurement, financing, implementation and limited 2 Ordinance 18074 operation of the PSERN, Puget Sound Emergency Radio Network Operator Interlocal Çooperation Agreement ("the implementation period ILA"). The implementation period ILA also establishes a joint board to oversee the PSERN project if funding is secured. 10. The parties have also negotiated a Memorandum of Agreement Regarding Future Operation of The Puget Sound Emergency Radio Network ("the MoA") attached as Attachment A to this ordinance. In the MoA, the parties agree to create a new nonprofit government corporation ("the PSERN operator") to assume the ownership, governance and operation of the PSERN once it is constructed, and thereafter throughout its useful life. I l. The parties also agree to work in good faith and use their best efforts to negotiate and enter into a second interlocal agreement ("lLA 2") That will establish the terms and conditions applicable to the future operation of PSERN and the incorporation of the PSERN operator. BE IT ORDAINED BY THE COUNCIL OF KING COUNTY: SECTION 1, The King County executive is hereby authorized to enter into an memorandum of agreement, in substantially the same form as the Memorandum of Agreement Regarding Future Operation of The Puget Sound Emergency Radio Network ("the MoA"), Attachment A to this ordinance, with the cities of Auburn, Bellevue, Federal 'Way, Issaquah, Kent, Kirkland, Mercer Island, Redmond, Renton, Seattle and Tukwila for the Puget Sound emergency radio network project, and to take all actions necessary to implement the terms of the memorandum of agreement 3 Ordinance 18074 65 SECTION 2. As part of the executive's MoA implementation responsiblities to 66 represent the interests of King County in the negotiations of the interlocal agreement to 67 establish the terms and conditions governing the future operation of PSERN and the 68 incorporation of the PSERN operator ("ILA 2"), the executive shall require any ILA 2 to 69 include a term that requires the PSERN operator to create an advisory body comprised of 70 radio users, including fire commissioners, to advise the PSERN operator on the concerns 7I and issues facing radio users and that this obligation to create and maintain the advisory 72 board to also be included in the PSERN operator's articles of incorporation or its board of 73 director's bylaws as appropriate. 74 SECTION 3. As part of the executive's MoA implementation responsiblities to 75 represent the interests of King County in the negotiations of the interlocal agreement to 76 establish the terms and conditions governing the future operation of PSERN and the 77 incorporation of the PSERN operator ("lLA 2"),the executive shall require the ILA 2: 78 A. To not contain terms that purport either that the PSERN operator board of 79 directors would be created under RCV/ 39.34.030(4) or that the board would not be a 80 separate legal or administrative entity within the meaning of RCW 39.3a,030(3); 81 B. To contain terms that specify that the affairs of the PSERN operator shall be 82 managed by a board; 83 C. To contain terms that specify the composition of the board, its powers and 84 responsibilities and the quorum and meeting requirements of the board, and require these 85 terms to also be set forth either in the PSERN operator articles of incorporation or bylaws 86 as applicable; 4 Ordinance 18074 87 D. To contain terms that specify that before any person, other than the King 88 County executive, may serve as the Çounty's selected voting member on the PSERN 89 operator board of directors, the Kirrg County council must approve that selection and 90 require these terms to also be set forth either in the PSERN operator articles of 91 incorporation or bylaws, as applicable; and 92 E. To contain terms that specify that before the PSERN operator may be 5 93 94 95 Ordinance 18074 incorporated, the proposed articles of its incorporation and any initial bylaws to be adopted by the board shall be approved by motion by the King County council. Ordinance 18074 was introduced on 112612015 and passed as amended by the Metropolitan King County Council on 612912015, by the following vote: Yes: 8 - Mr, Phillips, Mr, von Reichbauer, Mr. Gossett, Ms' Hague, Ms. Lambert, Mr. Dunn, Mr. Dembowski and Mr. Upthegrove No: 0 Excused: I - Mr. McDermott KING COUNTY COUNC KIN WASH Larry Phill ATTEST I t. ) t\\.r\lJ^,oÀ" Anne Noris, Clerk of the Council APPROVED this 3Þ day of Jrnæi 2ôÌ5 l'").:) (_-c.) -< -¡, _- -x f-l a.! FJ 1.-:J ;;(- 7Ja:: r-h-r'' l¡l r:,.) Oc) fil -T---6.(-Ð rn u1 \J -*J t Dow Constantine, County Executive Attachments: A. Memorandum of Agreement Regarding Future Operations of the Puget Sound Emergency Radio Network 6 1807 4 Attachment A Memorandum of Agreement Regarding Future Operation of The Puget Sound Emergency Radio Network This Memorandum of Agreement Regarding Future Operation of Puget Sound Emergency Radio Network ("MOA") is entered into by and among King County and the cities of Auburn, Bellevue, Federal Way, Issaquah, Kent, Kirkland, Mercer Island, Redmond, Renton, Seattle, and Tukwila, each a political subdivision or municipal corporation of the State of Washington (individually, a "Palty") and, (collectively, the "Parties"). Recitals The Parties 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. This new system is referred to herein as the "Puget Sound Emergency Radio Network System" or "PSERN System." The Parties are entering into a separate agreement titled the Puget Sound Emergency Radio Network Implementation Period Interlocal Cooperation Agreement ("Implementation Period ILA") that designates King County to act as the lead agency for planning, procurement, financing and implementation of the PSERN System with the oversight of a joint board established by the Parties. The Parties also wish to create a ne\ / non-profit corporation to assume the ownership and control of the PSERN System at completion of the activities under the Implementation Period ILA, and thereafter throughout the useful life of the PSERN System. The Parties mutually desire to commit to the formation of the non-profit corporation, its governance structure, and other material terms regarding the future operation of the PSERN System while allowing the flexibility to work in good faith toward a more complete agreement for the incorporation of the non-profit and the future operation of the PSERN System. NOW, THEREFORE, in consideration of the mutual promises, benefrts and covenants contained herein and other valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree to the above Recitals and as follows: 1807 4 1. Effective Date and Term This MOA shall be effective on the date it is last signed by an authorized representative of each the Parties, and shall remain in effect until the earlier of the following events: (i) the Implementation Period ILA is terminated or (ii) this MOA is superseded by the interlocal agreement described in Sections 3 and 4. 2. Incorporation of PSERN Operator The Parties hereby agree to create a non-profit corporation, as authorized under RCW 39.34.030, to be incorporated in Washington State for the purpose of owning, operating, maintaining, managing and providing ongoing upgrading and replacement of the PSERN System throughout its useful life. The future non-profit corporation to be created by the Parties is referred to herein as the "PSERN Operator". 3. interlocal Agreement; Material Terms The Palties agree to work in good faith and use best efforts to negotiate and enter into a future interlocal agreement that will establish the terms and conditions applicable to the future operation of PSERN and the incorporation of the PSERN Operator. The Parties commit and agree that the following terms and conditions are material to the future interlocal agreement and shall be included: a. The affairs of the PSERN Operator shall be governed by a board of directors (the "Board") that shall act on behalf of all Parties and as may be in the best interests of the PSERN System. b. The governance and voting structure of the Board shall be as provided under Sections 4.1 through 4.3 of the Draft Puget Sound Emergency Radio Network Operator Interlocal Cooperation Agreement ("Draft Operations Period ILA") attached as Exhibit 1 and made apaft of this MOA. c. Agencies using the PSERN System shall pay the PSERN Operator user fees as provided for in the Implementation Period ILA and based on the cost allocation model attached as Exhibit 4 to the Implementation Period ILA. 4. Additional Terms and Conditions of Interlocal Agreement In addition to the material terms and conditions in Section 3 above, the Parties shall continue to work in good faith to supplement, negotiate, amend and finalize the Draft Operations Period ILA, resulting in a final Operations Period ILA, which shall to include additional mutually agreed upon terms regarding the incorporation and transfer of operations to the PSERN Operator, which are anticipated to include terms regarding transfer of employees to PSERN, insurance and liability requirements, and service levels for the PSERN System user agreements. With the exception of the material terms and conditions in Section 3 above, the Draft Operations Page 2 of 24 1807 4 Period ILA attached as Exhibit 1 is not intended to be legally binding but is attached for illustrative purposes only. The Parties commit to working to finalize the Draft Operations Period ILA in a timeframe that will allow it to be presented to the Parties' respective authorizing bodies for approval in a time and manner that will enable the PSERN Operator to be fully functioning no later than full system acceptance as defined under the Implementation ILA. IN WITNESS WHEREOF, authorized representatives of the Parties have signed their names in the spaces provided below. KING COUNTY CITY OF AUBURN Name Name Title Title Date Date Attest: City Clerk Approved as to Form Approved as to Form Deputy Prosecuting Attorney City Attorney CITY OF BELLEVUB CITY OF FEDERAL WAY Name Name Title Title Date Date Attest:Attest City Clerk City Clerk Approved as to Form PageS of 24 Approved as to Form 18074 City Attorney CITY OF ISSAQUAH Name Title Date Attest: City Clerk Approved as to Form: City Attorney CITY OF'KIRKLAND Name Title Date Attest: City Clerk Approved as to Form: City Attorney City Attorney CITY OF KENT Name Title Date Attest City Clerk Approved as to Form City Attorney CITY OF MERCER ISLAND Name Title Date Attest: City Clerk Approved as to Form: Page 4 of 24 City Attorney 18074 CITY OF REDMOND CITY OF'RENTON Name Name TitleTitle Date Date Attest: City Clerk Attest: City Clerk Approved as to Form Approved as to Form: City Attorney CITY OF SEATTLE City Attorney CITY OF'TUKWILA Name Name TitleTitle Date Date Attest: City Clerk Approved as to Form Page 5 of 24 City Attorney 18074 Exhibit 1 to Memorandum of Agreement Regarding Future Operation of the Puget Sound Emergency Radio Network DRAFT PUGET SOUND EMERGENCY RADIO NETWORK OPERATOR INTERLOCAL COOPERATION AGREEMENT This lnterlocal Cooþeration Agreement (lLA) is entered into pursuant to the lnterlocal Cooperation Act (Chapter 39.34 RCW) by and among King County and the cities of Auburn, Bellevue, Federal Way, lssaquah, Kent, Kirkland, Mercer lsland, Redmond, Renton, Seattle, and Tukwila, each a political subdivision or municipal corporation of the State of Washington (individually, a "Party") and, (collectively, the "Parties"). RECITALS A. The Parties, under various interlocal agreements, have been responsible for the ownership, operation 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 unsuppofted by the supplier of the system's equipment, software and related repairs. B. The Parties determined that it is in the public interes-t 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. Said new system is referred to herein as the "Puget Sound Emergency Radio Network System" oT "PSERN System." C The costs of implementing the PSERN System will be financed by a voter approved funding measure. D. The Parties have negotiated a separate agreement ("lmplementation Period lLA") that designates King County to act as the lead agency for planning, procurement, financing and implementation of the PSERN System with the oversight of a Joint Board established pursuant to the lmplementation Period lLA. E. The Parties will create a new non-profit entity, formed under Chapter 24.06 RCW, to assume the ownership and control of the PSERN System following Full System Acceptance. This new entity, also referred to in the lmplementation Period ILA and herein as the "PSERN Operator", is to be responsible for the ownership, operations, maintenance, management and on-going upgrading/replacing of the PSERN System during its useful life. Page 6 of 24 18074 F. The purpose of this Agreement is to establish the terms under which the Parties will form the new non-profit entity and undertake the ownership, operations, maintenance, management and on-going upgrading/replacing of the PSERN System. 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: 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 current and future statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referred to. 1.1.3 References to sections, eXhibits, attachments or appendices 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." lf 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 othenruise defined that have well-known technical industry meanings are used in accordance with such recognized meanings. 1.1.10 The headings and captions inserted into this Agreement are for PageT of 24 18074 convenience of reference only and in no way define, limit, or othenryise describe the scope or intent of this Agreement, or any provision hereof, or in any way affect the interpretation of this Agreement. 1.1.11 This Agreement was negotiated and prepared by the Pafties 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: "Board of Directors" or "Board" means the board formed by the Parties to govern the PSERN Operator. "AGREEMENT " means this lnterlocal Cooperation Agreement. "BUDGET" means the budget approved by the Board of Directors to pay for the anticipated costs of operating and maintaining the PSERN System. 'CONSOLIDATED SERVICE AREA" means those geographic areas of King County, Pierce County and Snohomish County, Washington, previously served by the emergency radio networks of King County, the City of Seattle, the Eastside Public Safety Communications Agency (EPSCA) and the Valley Communications Agency (ValleyCom), and which areas are to be prospectively served by the PSERN System. The Consolidated Service Area shall also include those other geographic areas that are added to the area served by the PSERN System as expanded in accordance with action of the Board of Directors. "COUNTY " means King County, Washington. "EXECUTIVE DIRECTOR" means the individual selected by the Board of Directors to administer the PSERN Operator on a daily basis. "FULL SYSTEM ACCEPTANCE" or "FSA" means the determination issued to the PSERN System Contractor upon satisfactorily completing the final system development phase milestone pursuant to Contract No. "KCERS" means the King County Emergency Radio Communication System "OPERATIONS PERIOD" means the period that commences with the first full month after FSA and continuing through the life of the PSERN System. PageB of 24 1807 4 "PUGET SOUND EMERGENCY RADIO NETWORK OPERATOR" or "PSERN Operator" means the non-profit corporation created pursuant to this Agreement and the lmplementation Period ILA to be incorporated in Washington State for the purpose of owning, operating, maintaining, managing and ongoing upgradingireplacing of the PSERN System during the Operations Period. 'PUGET SOUND EMERGENCY RADIO NETWORK SYSTEM" or "PSERN System" means the land mobile radio system constructed under the lmplementation Period lLA. lt also means all equipment, software, and other work deployed to provide public safety communication service(s) or an addition to an existing infrastructure to provide new or additional public safety communication service(s). "System" means an infrastructure that is deployed to provide public safety communication service(s) or an addition to an existing infrastructure to provide new or additional public safety communication service(s). "SERVICE RATE' means the rate or rates charged to User Agencies in accordance with the Rate Model appended hereto, or as it may be amended by action of the Board of Directors. "SERVICES" means Voice, data, video, or other services CommuniCation provided to User Agencies "USER AGENCY " means an entity that is authorized under a User Agency Agreement to use the PSERN System. "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 PSERN System. 2.0 DURATION OF AGREEMENT 2.1 Effective Date and Conditions Except as provided herein, this Agreement shall be in effect on the date it is last signed by an authorized representative of each the Parties, and shall remain in effect until terminated as provided in Section 7. However, Sections 4, 5, and 6 of this Agreement shall not be effective until the date the articles of incorporation for the PSERN Operator are filed with the Washington Secretary of State pursuant to Chapter 24.06 RCW. 3.0 PURPOSE OF THE AGREEMENT Following completion of the lmplementation Period ILA and Full System Acceptance, the purpose of this Agreement is to provide communication services to public safety Page9 of 24 1807 4 users and any other agencies permitted to be licensed in the 800 MHz Public Safety Radio Spectrum pursuant to 47 C.F.R. Part 90 that are within the boundaries of the Consolidated Service Area. To effectuate this purpose, the Parties authorize establishment of a non-profit entity pursuant to Chapter 24.06 RCW, which entity shall be known as the PSERN Operator, initially consisting of King County, and the cities of Auburn, Bellevue, Federal Way, lssaquah, Kent, Kirkland, Mercer lsland, Redmond, Renton, Seattle and Tukwila. 4.0 BOARD OF DIRECTORS 4.1 Creation of Board of Directors The affairs of the PSERN Operator shall be governed by a Board of Directors that is hereby created pursuant to RCW 39.34.030(4) that shall act on behalf of all Parties and as may be in the best interests of PSERN. The Board of Directors is not a separate legal or administrative entity within the meaning of RCW 39.34.030(3). 4.2 Composition of the Board of Directors 4.2.1 The Board of Directors shall be composed of four voting members: one member from King County, one member from the City of Seattle, one member representing the cities of Bellevue, lssaquah, Kirkland, Mercer lsland and Redmond, and one member representing the cities of Auburn, Federal Way, Kent, Renton and Tukwila. Each such member shall be the Chief Executive Officer of the political subdivision or municipal corporation from which the representative comes, or his/her designee. The Board of Directors Chair shall be elected from among its members. The Board of Directors shall also elect a Vice Chair from among its members to serye in the absence of the Chair. Each of the Parties shall provide written notice of their initial Board of Directors member to the Chair of the Joint Board established under the lmplementation Period lLA. Thereafter, notice of a change to a Party's Board of Directors member shall be effective upon delivery of written notice by the Pafty to the Chair of the Board of Directors. 4.2.2 The Board of Directors shall also include two nonvoting members to comment and participate in discussion but who are not entitled to vote on any matter. One nonvoting member shall be appointed by the King County Police Chiefs Association and one member selected jointly by the King County Fire Commissioners Association and the King County Fire Chiefs Association. 4.3 Quorum and Meeting Procedures 4.3.1 A quorum for a meeting of the Board of Directors shall be all of the Board members who have voting authority. Action by the Board of Directors shall require the affirmative vote of all four Board members, subject to Section 4.3.9. Page 10 of 24 1807 4 4.3.2 Any Board of Directors member who has voting authority may request that a vote on a measure be deferred until the next meeting. The measure shall then be deferred for one meeting unless the other three members find either that there is an emergency requiring that the vote be taken at the originally scheduled meeting or that a delay would likely result in harm to the public, Users, or the PSERN Operator. A vote on the same measure shall not be deferred a second time without the concurrence of the majority of the Board of Directors. 4.3.3 The Board of Directors shall establish by-laws and procedures for its operations and meetings including the establishing of a regular meeting schedule and location and providing for the scheduling of special and emergency meetings. 4.3.4Ïhe Board of Directors shall take actions by vote and each voting Board member shall be entitled to one vote. All votes shall have equal weight in the decision-making process. 4.3.5 Board members must be present at a meeting to vote and may not vote by proxy, provided that if approved by the Board, a member may participate in Board meetings and may vote on Board issues via telephone or other electronic voice communication. 4.3.6 Monthly meetings of the Board of Directors shall be scheduled provided that there shall be a minimum of two (2) meetings held each year. Other meetings may be held upon request of the Chair or any two members. 4.3.7 The Board of Directors shall comply with applicable requirements of the Washington State Open Public Meetings Act (Chapter 42.30 RCW). 4.3.8 A designee attending Board of Directors meetings on behalf of a regular member of the Board shall be entitled to exercise all rights of the member to participate in such meetings, including participating in discussion, making motions, and voting on matters coming before the Board. 4.3.9 The Board of Directors may take action by three votes when each of the following conditions is met: (1) a matter has been identified for action in the notice or proposed agenda for at least two meetings in a row, and (2) both meetings were regularly scheduled meetings in accordance with the by-laws and RCW 42.30, and (3) the same voting member failed to attend both meetings, failed to send a designee, and failed to provide written notice in advance of unavailability. 4.4 Board of Directors Actions PagetL of 24 1807 4 4.4.1 The Board of Directors shall oversee the operation and maintenance of the PSERN Operator. ln furtherance of that oversight, the Pafties.confer upon the Board of Directors the authority to: a. Amend this Agreement, subject to Section 11 .10; b. Establish committees and advisory groups to peÍorm activities related to the PSERN System; c. Adopt and amend budgets and approve expenditures. d. Adopt and amend policies and bylaws for the administration and regulation of the PSERN Operator; e. Approve contracts within the parameters of the established purchasing and contracting policies; f. Direct and supervise the activities of the Operating Board and the Executive Director; g. Hire, set the compensation for, and terminate the employment of the Executive Director. The Board shall evaluate the Executive Director's performance and give the Executive Director a written evaluation of his or her performance at least annually; h. Establish a fund or special fund or funds as authorized by RCW 39.34.030; i. Establish Services Rates and terms of use for User Agencies; j. Conduct regular and special meetings; k. Approve PSERN operation and maintenance standards; l. Determine the services the PSERN Operator shall offer and the terms under which they will be offered; m. Approve agreements with third parties; n. lncur debt in the name of the PSERN Operator to make purchases or contracts for services to implement the purposes of this Agreement; o. Purchase, take, receive, lease, take by gift, or othenruise acquire, own, hold, improve, use and othenryise deal in and with real or personal property, or any interest therein, in the name of the PSERN Operator; Page L2 of 24 1807 4 p. Sell, convey, moftgage, pledge, lease, exchange, transfer, and othenruise dispose of all of its propefty and assets; q Sue and be sued, complain and defend, in all court of competent jurisdiction; I Hold licenses for radio frequencies; s. Recommend action to the legislative bodies of the Parties and User Agencies; t. Delegate the Board of Directors' authority under this Agreement subject to such limitations and conditions as the Board of Directors may establish. u. Enter into agreements with other agencies to accomplish tasks for the PSERN Operator such as agreements regarding procurement, employee benefits, and property leasing; v. Exercise any powers necessary to fufther the goals and purposes of this Agreement that are consistent with the powers of the Parties; and w. Add parties to this Agreement and concurrently amend the membership and voting structure of the Board of Directors. 5.0 OPERATING BOARD Creation of Operating Board An Operating Board of radio users will be created by the Board of Directors for the purposes of providing advice and other duties as deemed appropriate by the Board of Directors. 6.0 EXECUTIVE DIRECTOR The Executive Director shall report to the Board of Directors and shall advise it from time to time on matters related to the operation and functions of the PSERN System and the PSERN Operator, including proposed budgets, financial and liability issues, and other appropriate matters related to the PSERN System and the PSERN Operator. The Director may also request assistance from the Operating Board to address tasks calling for technical and user-related expertise. 6.1 Executive Director Duties 6.1 .1 The Executive Director shall Page 13 of 24 1807 4 a. Schedule and manage the PSERN Operator's day-to-day activities in consistent with the policies, procedures, and standards adopted by the Board of Directors; b. Hire, evaluate at least annually, and terminate staff in compliance with the PSERN Operator's budget; c. Propose and administer Annual Budgets including its contingency; d. Approve expenditures and sign contracts in amounts up to $100,000 that are included in the budget without additional approval of the Board of Directors; e. Track the performance of PSERN systems and services; f. Provide support to the Board of Directors; g. Recommend policies, procedures, and standards, including changes to these policies, procedures, and standards; h. Provide written monthly reports to the Board of Directors describing the PSERN Operator's budget status, system performance against targets, partial or full system outages, purchases equal to or greater than $10,000, and usage statistics; Maintain and manage records in accordance with the state Public Records Act (Ch. 42.56 RCW) and other applicable state and federal laws and regulations; and j. Perform other duties as assigned 6.2 Qualifications and Status of the Executive Director The Executive Director shall have experience in the technical, financial and administrative fields of public safety radio and his or her appointment shall be on the basis of merit only. The Executive Director is an "at will" position that may not be modified by any PSERN Agency policy, rule, or regulation regarding discipline or termination of PSERN Agency employees, and accordingly, the Executive Director may be terminated from his or her position upon majority vote of the Board of Directors. 7.0 WITHDRAWAL AND REMOVAL 7.1 Withdrawal of a Party Page L4 of 24 18074 6.1.1 ln the event that a Party desires to withdraw from this Agreement, it shall give written notice to the Board before January 1st of the year prior to the year the withdrawal will be effective. The Party's withdrawal shall become effective on the last day of the year following delivery and service of appropriate notice to all other Parties. 6.1.2 A Pafty that withdraws shall remain responsible for any obligations that arose prior to the effective date of the withdrawal and for any that are specified under Section 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 withdrawal or, if such amounts are not then established, then within thirty (30) days after the amount is established. 6.1.3 lf Party withdraws from this Agreement, the withdrawing Party will fofeit any and all rights it may have to PSERN System real or personal property, or any rights to participate in the PSERN Operator, unless othenruise provided by the Board of Directors. 7.2 Removal of a Party. The Board of Directors may, for cause, remove a Party from this Agreement and terminate the Party's rights to participate in PSERN. Cause may include, but is not limited to, failure to act in good faith in participating in the Board of Directors and willful, arbitrary failure to approve and appropriate funds necessary to pay the Pafty's share of the costs under this Agreement. 8.0 DISSOLUTION AND TERMINATION Three (3) or more Parties may, at any one time, by written notice provided to all Parties, call for a complete dissolution of the PSERN Operator and termination of this Agreement. Upon an affirmative majority vote by the Board of Directors and an affirmative majority vote of the legislative bodies of each of the Parties for such dissolution and termination, the Board of Directors shall establish a task force to determine how the PSERN System assets, liabilities and propefties will be divided upon dissolution. Final approval of the disposition of the PSERN System assets shall require an affirmative majority vote by the Board of Directors. Upon an affirmative majority vote by the Board of Directors and upon an affirmative majority vote of the legislative bodies of each of the Pafties, the PSERN Operator shall be directed to wind up business, and a date will be set for final termination, which shall be at least one (1) year from the date of the vote to dissolve and terminate this Agreement. Upon the final termination date, this Agreement shall be fully terminated. 9.0 LEGAL RELATIONS Page t5 of 24 1807 4 9.1 Employees and No Third Party Beneficiaries 9.1.2 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 Parly 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. 9.1 .3 lt is understood and agreed that this Agreement is solely for the benefit of the Parties and gives no right to any other person or entity. 9.2 lndemnification 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 arising out of this Agreement. No Parly will be required to indemnify, defend, or save harmless the 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 Pafties, the indemnity provisions provided herein shall be valid and enforceable only to the extent of each Pafty'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 othenryise be available against such claims under the lndustrial lnsurance provisions of Title 51 RCW. Any loss or liability resulting from the negligent acts, errors, or omissions of the Board of Directors, Operating Board, Executive Director and/or staff, while acting within the scope of their authority under this Agreement, shall be borne by the PSERN Operator exclusively. The provisions of this Section shall survive the termination, expiration or withdrawal from of this Agreement. 1O.O PUBLIC RECORDS 1 0.1 Records Keeping Responsibilities. 10.1.1 The Executive Directorshall keep records related to the PSERN System and PSERN Operator as required by state law and in accordance with the policies, procedures and retention schedules as may be established by the Administrative Board. Page L6 of 24 18074 10.1.2 Each Parly shall keep records related to the PSERN System and PSERN Operator as required by state law and in accordance with such the policies, procedures and retention schedules as may be established by the Party, and each Parly 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 may be established by the Party. 10.1.3 The Executive Director shall be responsible for responding to public disclosure requests addressed to the PSERN Operator in accordance with the Washington Public Records Act, Chapter 42.56 RCW, and such procedures as may be established by the Administration Board. 10.1.4 lf a Party or the PSERN Operator or the Executive Director receives a public records request for records related to the PSERN System or the PSERN Operator, the recipient of that request shall promptly notify the other parties to this Agreement, Chair of the Administration Board and the Executive Director. 10.1.5 Absent agreement by the Parties or other arrangements, the recipient of that request shall remain responsible for responding to the requester. ln the event a request for records is addressed to the PSERN Operator, the Executive Director or the Board of Directors but specifies records of a single Party, such Party shall assume responsibility for responding to the request. ln the event a request for records is addressed to the Board of Directors but does not specify records of a single Party, PSERN shall assume responsibility for coordinating the Parties' response to the request. 11.0 GENERAL 11.1 Filing of Agreement Pursuant to RCW 39.34.040, prior to its entry into force, this Agreement shall be filqd with the King County Recorder's Office or, alternatively, listed by subject on a Party's web site or other electronically retrievable public source. 11.2 Time of the Essence The Parlies recognize that time is of the essence in the performance of the provisions of this Agreement. 11.3 Specific Performance ln 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. Page t7 of 24 18074 11.4 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. 11.5 Parties Not Relieved of Statutory Obligation 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 Board of Directors, the performance may be offered in satisfaction of the obligation or responsibility. 11.6 Nondiscrimination The Parties shall comply with the nondiscrimination requirements of applicable federal, state and local statutes and regulations. 11.7 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 Administration Board. 11.8 Dispute Resolution lf one or more Farties believe another Party has failed to comply with the terms of this Agreement, the affected Parties shall attempt to resolve the matter informally. lf the Parlies are unable to resolve the matter informally, any Party may submit the matter to mediation. ln any event, if the matter is not resolved, then any Party shall be entitled to pursue any legal remedy available. 11.9 Entire Agreement 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. Page L8 of 24 18074 11.10 Amendment Only ln Writing This Agreement may be amended by an affirmative majority vote the Board of Directors and unanimity of the Parties. 11.11 Notices 11.11.1 Any notice under this Agreement shall be in writing and shall be addressed to the Pafties' as listed below. Any notice may be given by certified mail, overnight delivery, or personal delivery. Notice is deemed given when delivered. Email, acknowledgement requested, may be used for notice that does not allege a breach or dispute under this Agreement. Email notice is deemed given when the recipient acknowledges receipt. 11.11.2 The names and contact information set forth in this Agreement shall apply until amended in writing by a Party providing new contact information to each other Party and the date the amendment is effective. 11 .12 Conflicts ln the event that any conflict exists between this Agreement and any exhibits hereto, the Agreement shall control. 11.13 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. 11 .14 Severability The provisions of this Agreement are severable. lf any portion, provision, or paft of this Agreement is held, determined, or adjudicated by a coutl 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 potlions, provisions, or parts of this Agreement and the remaining provisions shall remain in full force and effect. 11 .15 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 or removal from this Agreement. Section 8 Legal Relations Page t9 of 24 18074 Section 10 Section 11.13 11.16 Counterparts Public Records Choice of Law; Venue 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. 11.17 Execution and Effective Date This Agreement shall be executed on behalf of each Pafty by its duly authorized representative, pursuant to an appropriate motion, resolution, or ordinance of such Party. lN WITNESS WHEREOF, authorized representatives of the Parties have signed their names and indicated the date of signing in the spaces provided below. KING COUNTY CITY OF AUBURN Name Name TitleTitle Date Date Attest: Approved as to Form City Clerk Approved as to Form Deputy Prosecuting Attorney CITY OF BELLEVUE City Attorney CITY OF FEDERAL WAY Name Name TitleTitle Date Date Attest PageåO of 24 Attest. 18074 City Clerk Approved as to Form City Clerk Approved as to Form City Attorney CITY OF ISSAQUAH City Attorney CITY OF KENT Name Name TitleTitle Date Date Attest:Attest: City Clerk Approved as to Form City Clerk Approved as to Form City Attorney CITY OF KIRKLAND City Attorney CITY OF MERCER ISLAND Name Name TitleTitle Date Date Attest: Page 2L of 24 Attest: 18074 City Clerk Approved as to Form City Clerk Approved as to Form City Attorney CITY OF ISSAQUAH City Attorney CITY OF KENT Name Name TitleTitle Date Date Attest:Attest: City Clerk Approved as to Form City Clerk Approved as to Form City Attorney CITY OF KIRKLAND City Attorney CITY OF MERCER ISLAND Name Name TitleTitle Date Date Attest: Page 22 of 24 Attest: 1807 4 City Clerk Approved as to Form City Clerk Approved as to Form City Attorney CITY OF REDMOND City Attorney CITY OF RENTON Name Name TitleTitle Date Date Attest:Attest: City Clerk Approved as to Form City Clerk Approved as to Form City Attorney CITY OF SEATTLE City Attorney CITY OF TUKWILA Name Name Date Title Date Page23 of 24 Attest: 18074 City Clerk Approved as to Form City Attorney Page24 of 24