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HomeMy WebLinkAboutAgenda Packet 03/08/2011VII. Discussion Items: Utility Advisory Committee Jack Pittis Conference Room Port Angeles, WA 98362 March 8, 2011 3:00 PM AGENDA I. Call To Order II. Roll Call III. Approval Of Minutes For February 8, 2011 IV. Late Items V. Information Only Items: A. Hybrid Electric Vehicle Update B. Consumer Confidence /Water Quality Report for Calendar Year 2010 VI. Executive Session Potential Litigation: RCW 42.30.110(1)(i) A. Farallon Professional Services Agreement Amendment No. 3 B. Wireless Mobile Data System Sub -Grant Acceptance VIII. Information Only Items Continuation: A. Utility Discount for Low Income Senior Citizens and Disabled Citizens (verbal report only) B. Advanced Metering Infrastructure System Agreement Update (verbal report only) C. Bonneville Power Administration Residential Exchange Program Settlement Agreement (verbal report only) IX. Future Meeting Dates: March 23, 2011 from 5 to 8PM Evening Workshop March 28, 2011 from 3 to 5PM April 12, 2011 from 3 to 5PM X. Adjournment N \uac \final \030811 City Council Special Meeting /Utility Advisory Committee Jack Pittis Conference Room Port Angeles, WA 98362 February 8, 2011 3:00 p.m. I. Call To Order Chairman Dan DiGuilio called the meeting to order at 3:05 p.m. IL Roll Call UAC Assigned Chairman Dan DiGuilio, Cherie Kidd, Brooke Nelson Councilmembers Present: Other Councilmembers Max Mania Present: Other Councilmembers Absent: Brad Collins, Don Perry, Patrick Downie UAC Members Present: Vice Chairman Reed, Paul Elliott UAC Members Absent: N/A Staff Present Kent Myers, Bill Bloor, Glenn Cutler, Mike Puntenney, Larry Dunbar, Randy Brackett, Yvonne Ziomkowski, Terri Partch, Sondya Wray Others Present: Shannon Greene BPA generation account executive III. Approval Of Minutes Chairman DiGuilio asked if there were any corrections to the minutes of January 11 „2011. Dean Reed moved to approve the minutes. Councilmember Nelson seconded the motion, which carried unanimously. IV. Late Items Department of Health Water Main System Assessment, and Dry Creek Water Association. V. Discussion Items A. Bonneville Power Administration Initial Rate Proposal Larry Dunbar, Deputy Director of Power Systems and Shannon Greene discussed the estimated wholesale power and cost increase based on the Bonneville Power Initial Rate Proposal. There was a lengthy discussion. B. Post Closure Landfill Professional Services Agreement Amendment No. 2 Terri Partch, P.E., Civil Engineer, shared information about the professional services needed to support the Port Angeles Landfill Post Closure Permit requirements. Lengthy examples and discussions followed. Brooke Nelson moved to recommend City Council authorize the City Manager to sign Amendment No. 2 to the Professional Services Agreement with Aspect Consulting for Landfill Engineering in an amount not to exceed $64,000, and authorize the City Manager to make minor modifications to the agreement, if necessary. Dean Reed seconded the motion, which carried unanimously. C. 2011 Water Utility Professional Services Agreement Mike Puntenney, P.E., City Engineer, reviewed the issues with the current pipelines which are beyond life expectancy. An assessment of the appropriate phases that needed to be taken was discussed, for both the consulting and construction phases. A discussion followed. Dean Reed moved to recommend City Council authorize the City Manager to sign a Professional Services Agreement with CH2M Hill for Concrete Cylinder Pipe Replacement (WT02- 2009), McDougal Pressure Subzone Improvements (WT64- 1999), and on -call technical services in an amount not to exceed $874,522, including any minor modifications, if necessary. Paul Elliot seconded the motion, which carried unanimously. D. Washington Water Trust Blue Water Program Larry Dunbar, Deputy Director of Power Systems provided information on the Washington Water Trust Blue Water Program, and requested if any were at interest for a future presentation. The UAC declined. The Utility Advisory Committee did not share an interest in this program at this time. E. Electric Franchise Ordinance Automatic Tern Extension Larry Dunbar, Deputy Director of Power Systems, stated information on Clallam County Public Utility District's franchise for their electric facilities located in the City limits, and their 5 -year automatic term extension. A brief discussion followed. Cherie Kidd moved to recommend City Council to acknowledge the Clallam County Public Utility District No. 1 has been in compliance with the franchise during the last 5- years, which will automatically extend the term of the franchise for an additional 5- years. Brooke Nelson seconded the motion, which carried unanimously. VI. Information Only Items: A. Information only. B. Information only. C. Information only. D. Information only VII. Next Meeting Date: VIII. Adjournment: Dan DiGuilio, Mayor Dan DiGuilio, Chair Utility Advisory Committee Department of Health No action taken. Dry Creek Water Association No action taken. Bonneville Power Administration Residential Exchange Program Settlement Agreement No action taken. Advanced Metering Infrastructure System Agreement Update No action taken. March 8, 2011 4:30 p.m. Janessa Hurd, City Clerk Sondya Wray, Administrative Specialist ORTA NGE:LES W A S H I N G T O N U.S.A. Utility Advisory Committee Memo Date: March 8, 2010 To: Utility Advisory Committee From: Dennis McBride, Fleet Manager Subject: Hybrid Electric Vehicle Update Summary: In 2010, we installed a plug -in conversion into our 2004 Toyota Prius hybrid. The first mileage calculation for the conversion resulted in a fuel mileage improvement of 69 Recommendation: For information only, no action requested. Background /Analysis: In 2010, we installed a plug -in conversion into our 2004 Toyota Prius hybrid as a pilot project with the dual purpose of determining the fuel savings that can be incurred from such a conversion and the electrical power required to recharge the unit. During the research phase we found that there were widely varying mileage claims as well as conditions that dramatically affect the fuel mileage of a plug -in conversion. Claims of up to 100 miles per gallon (MPG) were common; however real world tests showed that a more realistic 64 to 78 MPG should be anticipated. Additionally, using the converted unit at lower speeds (up to 35 miles per hour) would return much better mileage than highway use. Since the Prius is used primarily in town we were expecting a fuel mileage in the range of 64 to 68 MPG. It was a pleasant surprise to find that our conversion resulted in 77 MPG, which is at the top end of estimates and significantly higher than what we expected. The first mileage calculation for the City's Prius plug -in conversion is summarized below: Fuel used: 8.0 gallons Miles driven: 617 miles Fuel mileage: 77.1 MPG 2010 MPG average: 45.6 MPG Fuel mileage increase: 31.5 MPG Fuel mileage improvement: 69% We are now installing a dedicated electrical plug -in at the Corporate Yard that is metered so we can keep track of the electricity used to charge the unit. Once we have collected electrical demand data, we will submit another update report. N \UAC \Final \Hybrid Electric Vehicle Update doc PORTANGELES W A S H I N G T O N U.S.A. Utility Advisory Committee Memo Date: March 8, 2010 To: Utility Advisory Committee From: Ernie Klimek, Water Superintendent Subject: Consumer Confidence /Water Quality Report for Calendar Year 2010 Summary: The Washington State Department of Health requires that every water system provide an annual Consumer Confidence Report to its customers. The report is to contain information on the potential contaminants present in the water supply that customers receive. The attached report for the Port Angeles Water Supply has been prepared for distribution to the City's water customers. Recommendation: For information only, no action requested. Background /Analysis: In 1996 Congress passed amendments to the Safe Drinking Water Act that included a mandate from the Environmental Protection Agency (EPA), to require community water systems to provide each of their customers with a "Consumer Confidence Report (CCR)" every twelve months. This year's report, using 2010 data, will be delivered to all City of Port Angeles water customers with the May /June utility billing statements, along with a public information announcement in the local paper, and posted on the City's website. By law this report must be distributed to our customers by July 1, 2011. The attached Water Quality Report for calendar year 2010 has been developed in accordance with the EPA/CCR regulations by City staff. The regulations require information on the quality of the water delivered by the system, and characterization of any risks from exposure to contaminants in the drinking water in an accurate and understandable manner. Also included in the report is the data for Water Use Efficiency that is required to be shared with our customers by July 1, 2011. The City has already provided the content of the Water Quality Report to the Clallam County Public Utility District No. 1 as it is required to do by April 1, 2011. Attachment: Water Quahty Report 2010 N \UAC \Final \Consumer Confidence Report 2010 docx Dear Water Customer The City of Port Angeles is pleased to provide you with our annual Consumer Confidence Water Quality Report for 2010. The purpose of this report is to share infor- mation with you, our customers, about the quality of your water and to convey a basic knowledge of our water system. This re- port is a surrnmary of the quality of water we provided to you in 2010, gives details about where the water comes from. and compares it to standards set by regulatory agencies. The year 2010 saw the City of Port Ange- les bring the new Port Angeles Water Treatment Plant (PAWTP) online. This Washington State Department of Health Office of Drinking Water and EPA ap- proved facility brings us into full treat- ment technique compliance with the Safe Drinking Water Act and our treatment plant operators are pleased to purvey this water to our customers. Also in 2010, the Utility distribution crew began to remove some of the older cast iron and galvanized lines from ser- vice and move customers to newer lines as we work to improve the water quality for cur community. This same crew is also responsible for leak detection and repair and their efforts have seen our water loss reduced to 16% from a high of 21% in The source for the City of Port Angeles Water System is a Ranney Collector (well) located on the east bank of the Elwha River. Our system identification number is 68550M. The Ranney Col- lector has been classified as ground- water under the influence (GWl) of sur- face water. This designation requires the City to meet the requirements of the Surface Water Treatment Rule (SWTR). Regulatory compliance op- tions available under the SWTR in- clude filtration and complying with cri- teria to avoid filtration. The City of Port Angeles is in full compliance with the Surface Water Treatment Rule through the filtration processes provided by 2007. Their efforts are better explained on page 6 under the title "Water Use Effi- ciency". Once again I'd like to thank you for your support, and if you have any questions about this report or at anytime have con- cerns about the quality of your drinking water please visit our website at www.cityofpa.us /pwWaterU.htm or con- tact me by e -mail at eklimek @cityofpa.us or phone 360.417.4855. Thank you. Ernie Klimek Water Superintendent WDiM 3 /WTPO 3 June 2011 UPDATE: As of January 31, 2011 the City of Port Angeles has lowered the amount of Fluoride in your drinking water from 1 part per million (ppm) to .8 ppm. This is in response to a change in guide- lines concerning Fluoride levels ex- pressed by the Federal Government. The final standard will be determined later this year and, be assured, we will bring our application levels into compliance with the standard when we receive notifi- cation Ernie WHERE DOES OUR WATER COME FROM? the new federally funded Port Ange- les Water treatment Plant (PAWTP) constructed under the Elwha River Ecosystem and Fisheries Restora- tion Act. inside this issue Page 3 Page 5 Page 6 Water Sampling Data Water Information Water Use Efficiency Dear Water Customer The City of Port Angeles is pleased to provide you with our annual Consumer Confidence Water Quality Report for 2010. The purpose of this report is to share infor- mation with you, our customers, about the quality of your water and to convey a basic knowledge of our water system. This re- port is a surrnmary of the quality of water we provided to you in 2010, gives details about where the water comes from. and compares it to standards set by regulatory agencies. The year 2010 saw the City of Port Ange- les bring the new Port Angeles Water Treatment Plant (PAWTP) online. This Washington State Department of Health Office of Drinking Water and EPA ap- proved facility brings us into full treat- ment technique compliance with the Safe Drinking Water Act and our treatment plant operators are pleased to purvey this water to our customers. Also in 2010, the Utility distribution crew began to remove some of the older cast iron and galvanized lines from ser- vice and move customers to newer lines as we work to improve the water quality for cur community. This same crew is also responsible for leak detection and repair and their efforts have seen our water loss reduced to 16% from a high of 21% in The source for the City of Port Angeles Water System is a Ranney Collector (well) located on the east bank of the Elwha River. Our system identification number is 68550M. The Ranney Col- lector has been classified as ground- water under the influence (GWl) of sur- face water. This designation requires the City to meet the requirements of the Surface Water Treatment Rule (SWTR). Regulatory compliance op- tions available under the SWTR in- clude filtration and complying with cri- teria to avoid filtration. The City of Port Angeles is in full compliance with the Surface Water Treatment Rule through the filtration processes provided by 2007. Their efforts are better explained on page 6 under the title "Water Use Effi- ciency". Once again I'd like to thank you for your support, and if you have any questions about this report or at anytime have con- cerns about the quality of your drinking water please visit our website at www.cityofpa.us /pwWaterU.htm or con- tact me by e -mail at eklimek @cityofpa.us or phone 360.417.4855. Thank you. Ernie Klimek Water Superintendent WDiM 3 /WTPO 3 June 2011 UPDATE: As of January 31, 2011 the City of Port Angeles has lowered the amount of Fluoride in your drinking water from 1 part per million (ppm) to .8 ppm. This is in response to a change in guide- lines concerning Fluoride levels ex- pressed by the Federal Government. The final standard will be determined later this year and, be assured, we will bring our application levels into compliance with the standard when we receive notifi- cation Ernie WHERE DOES OUR WATER COME FROM? the new federally funded Port Ange- les Water treatment Plant (PAWTP) constructed under the Elwha River Ecosystem and Fisheries Restora- tion Act. WATER TREATMENT What We Test for in Your Drinking Water In 2010, we conducted ever 511 tests for contaminants. Four hundred and fifty -six of these were routine Ccliform sampling, one sample for Nitrate -N; four (one -per quarter) samples each for total tnhaiomethane ,TTHM), haioacetic acid (HAAS), and total organic carbon (TOC's), twelve monthly samples for fluoride. thirty samples for lead and copper, and four samples for new construction and inves- tigation. The results listed on page 3 are a summary of these tests as submitted to the DOH /Cffice of Drinking Water and the U.S. Environmental Protectior Agency. Thank you. Larry Messinger Water Treatment Lead WDM 2 /WTPO 3 Page 2 Variance and Exemptions In 2003 the City requested and was approved to reduce monitoring of Disinfection /Disinfectant -By- Products by the DOH by having met the sampling requirements agreed to and being below the Maximum Contaminant Level (MCL) for TTHM's. HAA(5)'s. and TOC's. Exceedences There were no exceedences to report for 2010 Additional Testing There was no additional testing to report for 2010. The Water Treatment Section' of the Water Utility has the responsibility of treating and testing your drinking water. Our goal is to ensure that we meet all regulatoy agency standards :end retain your confidence in us to provide you with safe and reliable drinking water every time you turn on, your water tap. The section is composed of 5 employees- (clockwise starting top left: Jason, Quinn, Benjie, Larry, and Eric), They have a combined total of over 85 years of experience and serve you with expertise and professional- ism. Continuing education is rnandatory for our employees to meet the high'standards that you have come to expect. Current certi- fications held by staff and issued by the Washington State Department of Health include: Water Distribution Manager, Water Distri- bution Specialist, Water Treatment Plant Operator, Cross Connection Control Specialist, and Backflow,Assembly Tester. mv CONSUMERCONFIDEN(7E "WATER QUALITY REPORT Water Sampling Conducted in 2010 Sampling Conducted Sample Date Unit Nitrates at source —Elwha 9 /22/10 Microbiological Contami- nants Monthly Samples (38) Plus 3 New Construction In- vestigative Total Organic Carbons (TOC's) Trihaiomethane (TTHM) Haloacetic Acid (HAAS) Lead Copper Fluoride Term ppm mg/L AL uo /L NE ND pCi /L MCLG Monthly and as Needed ppm mg/L N/A 1 Sample per ppm NE NE Quarter mg/L 1 Sample per ug/L 100 100 Quarter 1 Sample per ug/L 60 NE Quarter 10/10 mg/L 10/10 mg/L Monthly mgi L 4 Definition Parts per million, or milligrams per liter (mg/L) Action Level Micrograms per liter Not Evaluated Not Detected Picocunes per Liter Maximum Contaminant Level Goal 2010 CONSUMER CONFIDENCE WATER QLrALilY RE RT MCL MCLG 10 SRL 0.1 mg/L Contami- No Contami- nant Pre- pant Pre- sent sent AL SRL 0.015 0.002 mg/L mg/L AL SRL 1.3 mg/L 0.02 mg/L Term TTHM SRL HAAS D /DBP MCL MF /L TOG Major Sources Detected Viola Level tion ND NO Run ofr,Sept!c, Fertilizers ND NO Naturally present in the environment 2 1.Q2 Avg. .25 AVG NO Monthly sampling required for reduced monitoring of D /DBP Avg. De- NO Byproduct of Chlorine tected D!sinfections Process Avg. De- NO Byproduct of Chlorine tected Disinfections Process 0.375 0.003 NO From specific plumb- ing in certain year homes 0.977 NO From specific plumb- ing in certain year homes Definition Total Tr!ha!omethane State reporting Level Haloacetic Acid Nom, Chemical is regu- lated by State Dismfectant/D!sinfection By- Products Maximum Contaminant Level Million Fibers per Liter Total Organic Carbon Page 3 PORT ANGELES WATER TREATMENT PLANT ACTIFLO Effluent Basin Maturation Mixer CROSS CONNECTION CONTROL Backfiow Protection To protect our customers from possible cross connection con tamination to the drinking water distribution system, the City of Port Angeles aggressively inspects and requires testing of back- flow devices on an annual basis. In the year 2010 we evaluated 1090 sites with a total of 1664 potential hazards eliminated with backflow devices. We surveyed 163 new sites and added 55 new locations requiring annual inspections and testing to protect the drinking water system. If you have any questions in regards to backflow requirements you may contact me at: 360.417.4886 or e-mail at rbecker @cityofpa.us Thank you Ron Becker Backflow Assembly Inspector Page 4 ACTIFLO Process Area Chemical Storage Port Angeles Water Treatment Plant (top) 201(1 CONSUME}, DENCE WATERQCA1.IT1 REPORT WATER INFORMATION Source water assessment and its availability Water from the Ranney Collector is tested following the guidelines estab- lished by the DOH to detect potent :ai contaminants that could reasonably be expected to be found in drinking water Because MOST, of the lard through ,tinich the EIV4ha River flows is inside the Olyrip:c National Park, there is limited opportunity for human contamination of the watel, Contaminants that migh be expected in untreated water 'nclude: bioiosical ccntammants, such as vi ruses and bacteria; 'noyganic contami- nants. such as salts and metals: pesti- cides and herbicides organic chemicals from industrial or petroleum use: and rad'oact e materials. Why are there contaminants in drinking water? Drinking water, including bottled water, may reason aoly be expected to contain at least smaii amounts of some con taminants. The presence of contami- nants does not necessarily indicate that water poses a health risk. More infor nation about contaminants and poten- tial health •ffects C3r3 be li n i;aliing the EPA's Safe Drinking Water Hotline (800.426.4791). This informa- tion can also be accessed at the EPA's website. www.eoa.gov /safewaterl hotlinelindex.html. The source of drink- ing water (both tap and bottled water) include rivers, lal•es, streams, ponds. reservoirs. springs. and wells. As water travels over the surface of the land or through the ground, it dissolves natu- rally occurring minerals and, In some cases. radioactive material, and can pick up substances resulting from the presence of animals or from human activity. Contaminants that may be present in source water include: A) Microbial contaminants, such as vi- ruses and bacteria, that may come from sewage treatment plants, septic systems, agricultural livestock opera- tions. and wildlife; 8) inorganic contaminants, such as 20w CONSUMER CON IZlDENCE WATER %TALII Y REPORT Lake Angeles salts and metals, which can be naturally occurring or i esuit from urban stormwa ter runoff, ladustriai, or domestic waste- water +ate discharges, o a'td gas prod.. tion, mining or farming; Ci Pesticides and herbicides, which may come from a variety of sources such as agriculture, urban stormwater runoff. and residential uses; D) Organic chemical contaminants, in- cluding synthetic and volatile organic chemicals, are by- products of industrial processes and petroleum production. which can also ccme from gas stations, urban stormwater runoff, and septic systems: E) Radioactive contaminants. which can be naturaily occurring or be the result of oil and gas production and mining ac- tivities. In order to ensure that tap water is safe to drink. EPA prescribes regulations that limit the amount of certain contaminants in the water provided by public water systems. Soeciai Precautions Some people may be more vuinerabie to contammants in drinking water than the general population. immune compromised persons such as persons with cancer undergoing chemotherapy. persons who have undergone organ transplants, people with HlV/AIDS or other immune system disorders, some elderly, and infants can be particularly at risk from infections, These people should seek advice about Gtr ini ing wa- ter from their health care providers. EPA/Centers for Disease Control (CDC) guidelines en appropriate means to lessen the risk of infection by crypto- sporidium and other microbial con- taminants are available from the Safe Drinking Water Hotline (800.426.4791) Wild Flowers in Grand Valley .x Page Water Conservation/Water Use Efficiency Water canservation measures are an irnpertant first step in rotecting our water suppfy. Such measures not onfy save the uppI3/ of our water. but can aso cut the cost of water treatment. Here are a few suggestions: INSIDE 1) Fix leaking faucets, ppes, toilets, etc. 21 install water Saving devices in faucets, toilets and appliances, Replace oEd fixtures with new ones. 3) Wash only full loads oflaundry. 4) Do not us*the toilet for trash disposal. 5) Soak dishes before washing and run the chuhwashe/ only when full. OUTSIDE THE HOUSE: 1) Water the ian and garden in the arly morning or evening and use mulch around plants and shrubs. 21 Repair leaks in faucets and hoses, Use water-saving nozzles. 3 Use aaosrfruma bucket to wash your vehicle. Save the hose for nnsng. FOR MORE INFORMATION PLEASE CONTACT: 8nhKajfoaz 350.417.4713 Energy ar.d Water Conservation e-mail: .us Ernie Klimek 380.417.4655 Water Superintendent e'malf: eWinnek@dtyofpa.us City uf Port Angeles Conservation VVabpoge: .ys/pwConaemzUn WATER USE EFFICIENCY Under the provisions of the Water Use Efficiency Program we are required to report to you annually by July 1st our progress in reducing water losses and to share /nformahnna�outour VYa¢»,Use E��oienuyPlan. LEAKAGE INFORMATION For the 12 month eporting erd from Janurv 2010 thru December 2010 Total production fromtheE|whaSoumemPWU|ionGeUons: 932 MG Total Authorized consumption in Million Gallons: 783 MG Unaccounted for Distribution System Water in Million Gallons: 149 MG Distribution System Losses as a Percentage: 16 Summary for 2010 |n2O1O*e realized o distribution loss of1O%,This lowers our 3-yr. Ioss average (Jon2O88'Deo201D)to17%homm of 21% at the start of the reporting period and is aligned with our goal of 1% reduction in loss per year. We achieved this re- duction bycaUbratngmetem.Tnsokngunauoouotedusage(OuahinQ,oleanmg'hraconsumption).a8grzssivekeakrepmr (within 24 to 48 hours from reortng) and through the use of utility owned leak detecting and correratng eqwpment. Also in 2010 our custorners used 65 MiHon gallons less water than in 2009 and since 2007 we have seen our per capita concon- sumpton drop from 129gal/capita/day to 113 gal/capita/day. VVe continued our leak education program a1 fairs and inulasy nooms.ohmwedusehistorythmouQhutVhybiU/ng.andofered conservation devices and rebates to customers through our con- servation programs Dennis Edgington Water Distribution Lead-worker 201. a tONSIMIsxtONFInENCE WATER Page 6 r/o4 AA,A� EXECUTIVE SESSION Date: V G,ret. g O// Expected length of session: Is action expected following the session: /f✓ „'i i At the start of Executive' 1 1 11 11 Ses sion;,,rerni11nd'"partici'pants that: )4 I I I 11 ..',�'Irit�11 °.r A411 I,11 „.111111 Only announced topics may be discussed No final action can be taken in Executive Session Discussions are confidential Reason for Executive Session: To consider matters affecting national security. To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price. To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public. To review negotiations on the performance of public bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs. To consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company. To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge. To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public. To evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate and final action appointing a candidate to elective office shall be in a meeting open to the public. To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency. Closed session under RCW 42.30.140: To discuss proceedings concerned with the formal issuance of an order granting, suspending, revoking, or denying any license, permit, or certificate to engage in any business, occupation, or profession, or to receive a license for a sports activity or to operate any mechanical device or motor vehicle where a license or registration is necessary; or Meeting of a quasi judicial body relating to a quasi judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group. Matters governed by chapter 34.05 RCW, the Administrative Procedure Act. Collective bargaining session with employee organization, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement or a portion of a meeting which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceeding, or reviewing the proposals made in the negotiations or proceedings while in progress. Time session began: Was session extended by announcement: (e- s If so, when: Time session ended: Mayor 3 /5 G \LEGAL UForms\EXECUTIVE SESSION 061509 wpd In attendance: bl A G Mwf6cv'.s excc6,o/ Aii f V v owdr Vvw r n.!/ 3:5'i T AA,'/ 7 L- af, re_ City Clerk N ream SP, i T#4 pORTANGE LES W A S H I N G T O N U.S.A. Utility Advisory Committee Memo Date: March 8, 2010 To: Utility Advisory Committee From: Glenn A. Cutler, P.E., Director of Public Works and Utilities Subject: Farallon Professional Services Agreement Amendment No. 3 Rayonier Property Archaeology Exploration Support and CSO Phase 1 Project Construction Support Summary: Farallon Consulting, LLC was retained by the City to provide technical and environmental assistance regarding the former Rayonier site in matters relating to the Combined Sewer Overflow Phase 1 project. Rayonier and DOE are currently negotiating a Materials Management Plan (MMP) that will guide all earthmoving activities on the former Rayonier mill site. Amendment 3 includes environmental consulting and engineering support for both the upcoming archeological exploration and environmental specifications for the construction design of the CSO Phase 1 project that are compliant with the MMP. Recommendation: Forward a favorable recommendation to City Council to approve and authorize the City Manager to 1) sign Amendment No. 3 to the Consultant Agreement with Farallon Consulting in an amount not to exceed $120,600, which increases the maximum compensation under the agreement from $95,800 to $216,400, and 2) make minor modifications to the agreement if necessary. Background /Analysis: Farallon Consulting, LLC was retained by the City on October 5, 2010 to provide technical and environmental assistance regarding the former Rayonier site in matters relating to the Combined Sewer Overflow Phase 1 project. Rayonier and DOE are currently negotiating a Materials Management Plan (MMP) that will determine the general framework for all earthmoving activities as well as the handling and disposition of soils and groundwater from the former Rayonier mill site. The scope of work for Amendment 3 involves five work elements: Environmental review of the MMP on behalf of the City (costs potentially recoverable) Environmental support during archaeological investigations scheduled for spring 2011 including sampling of soils and groundwater (costs potentially recoverable) Development of environmental specifications and the health and safety specification for the CSO Phase 1 project construction documents, consistent and coherent with the approved MMP (costs potentially recoverable) Technical support (non recoverable) Environmental support (potentially recoverable) 1. MMP review $4,600 Advise and support the City's engineering and legal staff in reviewing and commenting on the Materials Management Plan as it evolves in negotiations between Rayonier and DOE. Farallon brings particular expertise and experience in the areas of soil and groundwater analysis and in implementation of construction projects on sites being cleaned up under the Model Toxics Control Act (MTCA) and other federal and state regulations. This is additional work on an existing task. Rayonier and DOE are still developing and refining the requirements in this document. The last iteration of this was Rayonier submitting a revised draft on February 7, 2011. At this point, it is clear there will be another round of review. 2. Technical Support $11,510 Budget added for additional consulting support to City legal and engineering staff in addressing property, environmental, regulatory, and legal issues. 3a. Archaeological Excavation Specifications $4,480 Development of contract specifications for the archaeological exploration contract that is a site investigation in advance of the CSO Phase 1 construction. This will address how to handle potential contamination issues, associated health and safety requirements, and construction sequencing requirements to allow the archeological excavations to be performed in compliance with federal and State environmental regulations, and consistent with the revised Materials Management Plan (MMP) to be approved by DOE. 3b. Archaeological Excavation Sampling Plan $5,390 Development of a sampling plan that will be sent to the Toxics Cleanup Program at the Department of Ecology for approval. The plan will be used for obtaining, handling, recording, and testing of soil and ground water samples that are expected to be taken during the archaeological excavation. 3c. Archaeological Excavation Analysis of Results and Technical Memorandum $13,620 Analyze sampling results and prepare a technical memorandum to document the results of environmental sampling at the archeological excavations. The data will be used to update the CSO soils characterization and map and support design work for the CSO construction project. March 8, 2011 Farallon Professional Services Agreement Amendment No 3 Page 2 The description and rationale for the additional work for each task is below, using the task numbering system from the original contract: N \UAC \Final \Farallon Engineering Services Agreement Amendment 3 doc 3d. CSO Project Construction Specification Coordination Environmental $20,570 Engineering Design Development by Farallon of the final environmental specification and health and safety specification that Brown Caldwell will incorporate in the final design documents. Consultation and technical analysis coordinated between Farallon, Brown Caldwell, Rayonier, the DOE, and the City which will result in resolving issues between the MMP and construction documents. Additionally, Farallon will develop a construction sequencing plan and schedule for the environmental aspects of this project. 5. Environmental Support $15,800 Budget added for additional analysis and consultation on environmental issues such as potential applicable cleanup levels, groundwater treatment, potential for recontamination, and other questions on an as- needed basis. 6a. Archeological Excavation Field Sampling $44, 630 Labor and equipment to collect and analyze environmental samples during the archeological excavation work. It is anticipated that Farallon personnel will be on site for a total of 10 days during archeological excavation work and approximately 14 test pits will be excavated. March 8, 2011 Farallon Professional Services Agreement Amendment No 3 Page 3 Funding is available from the CSO funds accumulated through rates and Washington State Public Works Trust Fund loans. It is anticipated that if additional soil or groundwater sampling is required, it will be brought to the UAC and Council as Amendment 4 to Farallon's consultant contract. That area would encompass the western portion of the pipeline trench that is on the Rayonier property. Staff recommends that the Utility Advisory Committee forward a favorable recommendation to City Council to approve and authorize the City Manager to 1) sign Amendment No. 3 to the Consultant Agreement with Farallon Consulting in an amount not to exceed $120,600, which increases the maximum compensation under the agreement from $95,800 to $216,400, and 2) make minor modifications to the agreement if necessary. N \UAC\Final\Farallon Engineering Services Agreement Amendment 3 doc PORTANGELES W A S H I N G T O N U.S.A. Utility Advisory Committee Memo Date: March 8, 2010 To: Utility Advisory Committee From: Glenn A. Cutler, P.E., Director of Public Works and Utilities Terry Gallagher, Police Chief Dan McKeen, Fire Chief Subject: Wireless Mobile Data System Sub -Grant Acceptance Summary: The City is a sub grantee under the Northwest Open Access Network's grant application as part of the Broadband Technology Opportunities Program. The City's sub -grant is for a wireless mobile data network for public safety. Staff anticipates the City will be offered a Participation Agreement in the next ninety days, which only leaves 15 months to complete the majority of the project. Recommendation: Forward a favorable recommendation to City Council to authorize the City Manager to accept the Northwest Open Access Network Participation Agreement for the Wireless Mobile Data System Sub Grant, and make minor modifications to the agreement, if necessary. Background /Analysis: On March 17, 2009, City Council approved an agreement with Columbia Telecommunications Corporation (CTC) to assess the City's network, including the Police and Fire Departments wireless mobile data needs. On July 21, 2009, City Council authorized CTC to prepare a system -level design, cost estimate, business plan, and a grant application for a wireless mobile data system. In August of 2010 the Northwest Open Access Network (NoaNet) was awarded a grant under Broadband Technology Opportunities Program (BTOP), which included the City's sub -grant for a wireless mobile data system. As part of the City's sub -grant application, CTC's system -level design included a wireless mobile data system within the City and the Lower Elwha Klallam Tribe including a total of 240 wireless access points and 44 interconnections to the fiber optic network within the City under the Metropolitan Area Network Services Agreement with Capacity Provisioning, Inc. Communications equipment necessary for vehicles was also included in the sub -grant for the City (Police, Fire and Public Works and Utilities Departments), Fire Districts 2 and 3, Clallam County Sheriff, and the Lower Elwha Klallam Tribe. The total estimated capital cost of the proposed project is $3.7 million with a 30% City match of $1.1 million (a combination of prior investments, in -kind, and cash contributions was anticipated to be allowed). The City may have to either provide a letter of credit or by resolution establish a restricted cash account for the City's match to comply with the sub -grant in the next ninety days. N \UAC \Final \Wireless Network Grant Acceptance doe Wireless Mobile Data System Grant Acceptance March 8, 2011 Page 2 CTC also prepared a business case evaluation which anticipated outsourcing the design, construction, operation and maintenance of the wireless network through a request for proposal (RFP) procurement process. The business case also envisioned that excess network capability could be used by a vendor to provide Internet access services to the public. During the last year staff has contacted other agencies that have had systems in place for several years such as the City of Ripon, CA, City of Lebanon, OR, and Brookline, MA. On October 12, 2010, Mr. Dick Bull, the former Chief of Police for the City of Ripon, CA, who is currently serving as the Outreach Specialist for the National Law Enforcement and Corrections Technology Center, provided information to the Utility Advisory Committee about his experience operating and maintaining wireless networks. On November 9, 2010, the Utility Advisory Committee received an update on the CTC business case evaluation based on the assumption of City ownership, operation and maintenance. The update included a mobile data radio life expectancy of 12 -20 years, which resulted in an anticipated monthly charge of $70 per vehicle (without depreciation or aircard discount). The estimated monthly depreciation is $30 per vehicle, which could be added to the monthly charges or delayed until after the equipment warranty period expires. It is evident from the business case evaluation that without the BTOP grant that the City's wireless mobile data public safety needs will continue to be unmet. Although the business case evaluation assumed City ownership, operation and maintenance, CTC and staff recommend that design, construction, operation and maintenance is outsourced if possible. CTC shared that under an outsourcing approach they believe the worst possible outcome should be that the vendor would be able to cover all operating costs and capital replacements, and that the best possible outcome may be that the City has surplus funds to support new telecommunications initiatives. According to NoaNet, they recently submitted the required environmental assessment, and until a finding of no significant impact (FONSI) is issued by NTIA, NoaNet can't offer the City its sub grant via a Participation Agreement (draft attached which has not yet been reviewed by the City Attorney). We appear to be in a holding pattern for the Participation Agreement for up to the next ninety days. Last August NoaNet accepted the BTOP cycle 2 grant and the City has to spend 67% of the sub -grant funds before August 2012. The remaining 33% of the sub -grant funds must be spent before August 2013. If NoaNet provides the Participation Agreement to the City by the end of May we will only have 15 months to spend the majority of the grant funds (the 2 -year clock started ticking August 2010). NoaNet has advised staff that they are reviewing the State law to ensure that an RFP approach can be used under the sub grant. NoaNet has also advised staff that they need to review and approve CTC's scope of work and the RFP, and that any consulting expenses incurred by the City prior to the FONSI may not be eligible for sub -grant funding. Staff will be returning to the Utility Advisory Committee with a proposed amendment to CTC's professional services agreement for technical services in support of the City's sub grant. Attachment: Draft Participation Agreement PARTICIPATION AGREEMENT- NTIA/BTOP ROUND 2 This Participation Agreement is made as of 2011 by and between Northwest Open Access Network, a Washington nonprofit mutual corporation "NoaNet and a (collectively the "Participants" and individually the "Participant As used herein, a "Party" means NoaNet or any of the Participants. Recita Is Prior to April 1, 2010, NoaNet, as the lead entity of a consortium of public, private, and tribal entities (specifically, NoaNet and the Participants), submitted an application for an award of federal stimulus funds from the United States Department of Commerce under the American Recovery and Reinvestment Act, to be funded by a grant by the National Telecommunications and Information Administration "NTIA" or the "Agency an agency of the United States Department of Commerce (the "Department pursuant to NTIA's Broadband Technology Opportunities Program "NTIA /BTOP —Round 2 NoaNet has now received official notification that the grant contemplated by the NTIA/BTOP —Round 2 grant application has been awarded to NoaNet, providing federal funds in the amount of $54,452,347, subject to the terms and conditions specified therein. The total project, over a three year period, will be funded at $77,998,901, with required cash matching funds totaling $5,497,112, and in -kind matching funds of $18,049,442. The grant is evidenced by the Financial Assistance Award, Award No. NT1OBIX5570111, and the documents referred to or incorporated by reference therein (collectively identified herein as the "Award" or "Grant and attached hereto as Exhibit A. The terms and conditions of the Award are incorporated herein by reference as if set forth herein. To the extent of any conflict between the Award and the remaining terms of this Participation Agreement. the Award shall control. The purpose of the Award is to provide high capacity broadband access to retail service providers to create new markets for businesses and citizens and to improve internet and broadband capabilities into libraries, medical and education centers, government and public safety agencies. To that end, the Parties intend to use the Grant funds to build the so- called "middle mile" fiber optic infrastructure in unserved and underserved areas of Washington State, and to perform related activities, all as set forth in the Award (the "Project Each of the Participants is one of the public, private, or tribal entities on behalf of which NoaNet made the application for the Award. Attached as Exhibit B is the BTOP Award Budget which sets forth the total budget as well as the individual budgets for NoaNet and the other Participants for this Project. The BTOP Award Budget includes the value of the in -kind matching 1 210384 services or in -kind contributions to be provided by the applicable Participant (the "In- Kind Services and the matching cash contributions (the "Cash Contributions to be provided by the applicable Participant. 2. Parties' Performance. Agreements In order to induce NoaNet to accept the Grant on behalf of itself and the other Participants, the Parties agree as follows: 1. Acceptance. Each Participant does hereby agree to perform all obligations applicable to its share of the Award and be subject to all of the terms and conditions of the Award (to the extent pertaining to its share of the Award). Each Participant further ratifies and confirms that it has and does hereby authorize NoaNet to accept the award of the Grant on such Participant's behalf with respect to such Participant's share of the Grant. Each of the Participants hereby acknowledges receipt of Exhibit A attached hereto, which references the terms and conditions as identified in the Award. A. Each of the Parties agrees to construct the improvements and to provide the services pertaining to it as more particularly described as to each Party, respectively, on Exhibits through herein (herein the "Work Each Party further agrees to provide the Cash Contributions and the In -Kind Services in an amount at least equal to the respective amounts specified on Exhibit B hereto. The In -Kind Services are also more fully described in attached as Exhibit C hereto. Pursuant to Section 6C herein, each Party is contributing the equipment, plants and buildings described therein. B. The Parties' receipt of Grant funds, and use and disposition of real and personal property acquired or improved through the use of Grant funds, are subject to the terms and conditions of the Award, including those contained in 15 CFR Part 24 with respect to each Party that is a Government, as that term is defined in 15 CFR 24.3 (herein referred as "Public Party or in 15 CFR Part 14 with respect to each of the other Parties (herein the "Private Party (collectively, 15 CFR Parts 24 and 14 shall be referred to herein as the "Uniform Administrative Requirements Each of the Participants acknowledges and agrees that it is a sub recipient of the funds under the applicable rules or regulations; and each Party acknowledges and agrees that it holds title to all real and personal property acquired or improved with the Grant funds, including the Cash Contributions and the In -Kind Services (collectively, the "Property in trust for NTIA, to be used for the public purpose of the Award. Among other things, the Award requires that the Parties shall use the Property for the authorized purposes of the Project, as described in the Award, and that, for the estimated useful life of the Property, no Party shall dispose of, assign, or otherwise alienate its interest in such Property, or encumber any interest therein, without the approval of the NTIA. As provided in Section 6 of this Participation Agreement, each Party is obligated to file with the appropriate office in the applicable jurisdiction a Covenant reflecting this Federal interest in such Property. 2 210384 C. The Uniform Administrative Requirements further require the Parties to manage the Property in accord with the requirements set forth therein, including a requirement to maintain the Property in good condition. The Parties further agree to continuously operate and maintain all of the Property in a manner consistent with the standards in the industry for the useful life of similar property. 3. Standby Letter of Credit. Each Participant shall within 15 days after the applicable Participant has executed this Agreement, deliver a Standby Letter of Credit "SLOC to NoaNet in form and content that is consistent with Article 5 of the Uniform Commercial Code, as revised, and which is reasonably acceptable to NoaNet, committing the issuing bank to pay to NoaNet the Participant's Cash Contribution if the Participant fails to provide its share of the Cash Contribution when otherwise required under the terms of the Award. The amount of the SLOC may be reduced from time to time to reflect the value of subsequent Cash Contributions. A Participant may offer alternative security or assurances for its performance of its Cash Contribution requirement. NoaNet may accept such alternative security or assurances for Participant's performance of the Cash Contribution requirement as NoaNet, in its sole discretion, may determine. 4. Administration. NoaNet will be the administrator of the Award for NoaNet and on behalf of the Participants. Each Participant shall cooperate with NoaNet in the administration of the Award and shall provide to NoaNet all records and documents needed to apply for distributions of the Award funds and to otherwise comply with the terms and conditions of the Award. In providing such information and records to NoaNet, the Participant authorizes NoaNet to provide it to NTIA on its behalf, and represents and warrants that the information submitted is true, correct, and complete, and may be relied upon by NoaNet and NTIA. A. Receipt and Disbursement of Funds. In its role as administrator, NoaNet will receive funds from the Award and, subject to the terms and conditions of the Award and any restrictions contained herein, and so long as there is no outstanding Event of Default, as defined in Section 10 of this Participation Agreement, or any act or omission, or condition which, with the passage of time, would become an Event of Default, NoaNet will promptly disburse such funds to the applicable Participants as they are earned, and subject to any applicable retainage or other holdback. B. Environmental Assessment. The Parties acknowledge that one of the conditions precedent to receiving any funds under the Award is that an environmental assessment for all properties affected thereby must be completed and a finding of no significant impact made by NTIA. As administrator, NoaNet will arrange for such an environmental assessment to be completed. Each of the Participants agree to provide such information as may be requested of them with respect to that environmental assessment and to otherwise cooperate with NTIA, NoaNet and its agents in developing the environmental assessment. Each Participant also agrees to pay NoaNet for that Participant's pro -rata share (based on such factors as distance, time invested, and complexity) of the total costs of 3 210384 development and completion of the environmental assessment for the Project, as reasonably determined by NoaNet. C. Standard of Care with Respect to Participants. In performing its role as administrator for the Participants, NoaNet will be held to a standard of good faith and ordinary care. The ordinary care standard will be the same standard of care that NoaNet would exercise as to its own funds and the administration of its portion of the Award. In any case, with respect to the Participants, NoaNet will not be held to the standard of a fiduciary or as a trustee. D. Access and Inspection. NoaNet or the Department shall have the right to enter any of the property being improved with funds from the Grant or any other property upon which the broadband equipment or fixtures being acquired or improved with Grant proceeds are located. Such right of access does not require NoaNet or the Department to perform any inspections, repairs or alterations of the Property. NoaNet shall give the applicable Participant reasonable advance notice of any inspection except where, in NoaNet's or the Department's sole judgment, safety considerations or an urgency justify the need for such entry without the delay of providing the notice. E. Audit. NoaNet shall have the same rights to audit Participant and its activities under the Grant as the Department may have as to NoaNet under the Grant. 5. Federal Requirements. A. American Recovery and Reinvestment Act Award Terms. The Award includes the American Recovery and Reinvestment Act "ARRA Award Terms as identified in the Award. Without listing all of the ARRA Award Terms, each Participant acknowledges that the ARRA Award terms include the following: i. Central Contractor Registration. NoaNet and each Participant will be required to maintain registration in the Federal Central Contractor Registration and will need a Dun Bradstreet data universal numbering system number. ii. Reporting. NoaNet and each of the Participants will comply with all applicable reporting requirements. NoaNet will comply as the "Recipient" and each of the Participants will report as a "First Tier Recipient." iii. Use of American Iron, Steel and Manufactured Goods. The ARRA Award Terms requires that none of the funds made available under the ARRA may be used for a project for the construction, alteration, maintenance or repair of a public building or public works unless all of the iron, steel and manufactured goods used in the project are produced in the United States, except as exceptions are granted by the Federal Government. Pursuant to 74 FR 31410 (July 1, 2009), a copy of which is attached as Exhibit D, NTIA has granted a limited waiver of this requirement. 4 210384 iv. Prevailing Wages. All laborers and mechanics employed by contractors and subcontractors on the Work are to be paid wages at rates not less than those prevailing of a character similar in the locality as determined by the Secretary of Labor. Standard Davis -Bacon contract clauses found in 29 CFR 5.5(a) are to be incorporated in any covered contracts in excess of $2,000. v. Signage. All projects funded by the ARRA are to display signage that features the Primary Emblem as set forth in the terms and conditions of the Award at construction sites throughout the construction phase. This is to be displayed in a prominent location on the construction site. B. Governmentwide Debarment and Suspension Provisions. Each Participant and all contracts and subcontracts pertaining to Participant's portion of the Project are subject to subpart C of 2 CFR Part 1326, "Governmentwide Debarment and Suspension (non procurement)." C. New Restrictions on Lobbying. Each Participant and each sub award, contract or subcontract is subject to 31 USC 1352, as implemented at 15 CFR Part 28, "New Restrictions on Lobbying." Each Participant and each contractor or subcontractor must submit a completed "disclosure of lobbying activities" (Form SF -LLL) regarding the use of non federal funds for lobbying. The form SF -LLL shall be submitted within 15 days following the end of the calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed. The form SF -LLL shall be submitted from tier to tier until received by NoaNet, who will then submit the disclosure form to the Agency within 30 days following the end of the calendar quarter. 6. Covenant Regarding Federal Interest. A. Pursuant to the terms and conditions of the Award, NoaNet and each of the Participants will be required to execute and file for each parcel of real Property owned by such Party, a complete and accurate "Covenant of Purpose, Use and Ownerhip" in the form attached as Exhibit E hereto, (the "Covenant Under the terms of the Award, NoaNet or the Participant, as applicable, may not sell, lease, transfer, convey, hypothecate, mortgage, or otherwise alienate any right to or interest in the Property, or use the Property for purposes other than, and different from, those purposes set forth in the Award and the application therefore (hereinafter called "Project Purposes without the approval of NTIA, such alienation and use being prohibited by 15 CFR Parts 14 or 24, as applicable. The Covenant will pertain to the real Property owned by the Party in fee simple, an easement or right -of -way for the benefit of that Party, a leasehold interest where the Party is a tenant, and other property interests that were acquired or improved through the Grant funds or contributed by the Party. Such Covenant is to be filed with the County Auditor where the real Property is located. A conformed copy of such Covenant shall be provided to and maintained by NoaNet. In instances where the improvement is upon land in which the Party holds a leasehold, easement, right -of -way or similar interest, the Party's interest must be for a term at least as long as the Federal interest under the 5 210384 Award, must allow the filing of the Covenant, and the Party's interest must be made subject to the Federal interest. B. In addition, NoaNet and each of the Participants agree that, if required by the Agency, then it will permit the filing of a UCC -1 financing statement and all applicable continuations thereof, with the Department of Licensing of the State of Washington, which financing statement will give public notice of NTIA's interest in the broadband fiber and equipment purchased or contributed to the Project. This will be a notice filing and will not create a security interest in the assets described in such financing statement. C. In -Kind Contributions. Each of the Parties have identified certain assets that are being contributed to the Project as its portion of the In -Kind Services as specifically set forth in Exhibit C the Therefore, each Party does hereby contribute such assets to the Project. Although each Party will retain ownership of each of the assets so contributed, each of those assets will be bound by the terms of and subject to the Covenant. 7. Insurance. Each Participant will maintain such insurance as NoaNet is required to maintain under the Grant. NoaNet and each of the Participants will be named as additional insureds under each of those policies. Each Participant will cause its subcontractors and suppliers to maintain such insurance and in such amounts as may be required of NoaNet's subcontractors and suppliers under the Grant. Without limiting the foregoing, each Participant will maintain the following insurance coverages: A. Commercial general liability insurance covering claims for personal injuries or damage to property of others with coverage of $1,000,000 per occurrence and in the aggregate coverage. B. Comprehensive automobile and vehicle liability insurance covering claims for injuries to members of the public and /or damages to property of others arising from use of motor vehicles, including onsite and offsite operations, and owned, non owned, or hired vehicles, with $1,000,000 combined single limits. law. C. Workers' compensation insurance as required by applicable D. If a Participant fails to procure and maintain such insurance, NoaNet may, but shall not be required to, procure and maintain the same, but at the expense of the applicable Participant. E. Each Participant shall deliver to NoaNet, prior to commencement of any Work on the project, a certificate of the insurance required hereunder or the Award, as applicable. No policy shall be cancelable or subject to reduction of coverage except after thirty (30) days prior written notice to NoaNet. 6 210384 8. Indemnity. A. Each of the undersigned Participants ("Indemnitor do hereby agree, to the fullest extent permitted by law, to indemnify, defend and hold NoaNet, and each of the other Participants, and their members, directors, commissioners, officers, employees, agents, and other representatives "Indemnitees harmless from all claims, liabilities, damages, losses, and charges, including, without limitation, attorneys' fees, costs and expert witness fees, arising from Participant's performance or failure to perform the portion of the Grant and the terms and conditions applicable thereto, pertaining to Participant's portion of the Project. B. NoaNet hereby agrees, to the fullest extent permitted by law, to indemnify, defend and hold Participant, and each of the other Participants, and their members, directors, commissioners, officers, employees, agents, and other representatives "Indemnitees harmless from all claims, liabilities, damages, losses, and charges, including, without limitation, attorneys' fees, costs and expert witness fees, arising from NoaNet's performance or failure to perform the portion of the Grant and the terms and conditions applicable thereto, pertaining to NoaNet's portion of the Project. C. The Indemnity hereunder does not extend to losses resulting from the sole negligence of the Indemnitees. With regard to any claim based on the concurrent negligence of the Indemnitor, its agent or employee, and the indemnitee, the Indemnitor's liability under this section shall apply to the full extent of the negligence of the Indemnitor. D. If any action or proceeding (including any appeal therefrom) is brought against Indemnitee by reason of any claim described hereunder, Indemnitor, upon notice from Indemnitee, shall defend the same at Indemnitor's expense by counsel appointed by Indemnitor's insurance carrier (or other counsel reasonably satisfactory to Indemnitee) and shall pay all other costs and expenses incident to the defense of Indemnitee, including without limitation, reasonable attorneys' fees, costs and expert witness fees. E. Without limiting the foregoing, in any case, neither NoaNet nor any of the Participants shall be liable to the other for consequential damages, lost profits or punitive damages, regardless of the cause of loss or damage. 9. Assignment. In addition to any prohibition, restriction, limitation or requirement of the Award or of Federal law, none of the rights, title or interest of NoaNet or any of the Participants in this Agreement or in the Award, may be assigned, transferred, sold or mortgaged without the prior written consent of NoaNet, or in the case of an assignment by NoaNet, by all of the Participants. 10. Default. The occurrence of any one or more of the following events shall constitute an Event of Default "Event of Default under this Agreement. 7 210384 A. The failure of NoaNet or a Participant to diligently and continually proceed with and complete construction of the improvements in accordance with the schedule approved by the Agency or, if there is no such schedule, then in accordance with such schedule as will reasonably allow for completion of the Party's portion of the work by the end of the term of the Grant. B. The filing of a materialmen's lien against any of the property which is to be improved with funds from the Award, and the applicable Party's failure to obtain a release or post a bond or other security satisfactory to NoaNet within twenty (20) days of the date the lien is filed. C. The performance of any work pursuant to a material change order without NoaNet's prior written approval and the approval of the Agency, if such is required by the Award. D. The failure to commence and diligently and continually pursue any corrective work within fifteen (15) days of being required to do so by NoaNet or the Agency pursuant to the terms and conditions of the Grant. E. The failure of the Party to comply with the terms and conditions of the Grant within the time period provided in the Grant, and if none, then within ten (10) days of being notified of the violation in writing. F. Any warranty or representation by a Party under this Agreement that is materially false or inaccurate when given or at the time of any disbursement of Grant proceeds. G. The failure to perform any other covenant, agreement or obligation under this Agreement or the Award if not cured within any applicable cure period. If no cure period is otherwise specified, the cure period shall be within fifteen (15) days after NoaNet's delivery of written demand to Participant. H. The Party files a petition in bankruptcy or for an arrangement, reorganization or any other form of debtor relief; or the petition is filed against the Party, or any trustee of the Party, and the petition is not dismissed within forty -five (45) days after filing. I. A decree or order is entered for the appointment of a trustee, receiver or liquidator of the Party and such decree or order is not vacated within forty five (45) days after the date of entry. J. The Party commences any proceeding for dissolution or liquidation; or any such proceeding is commenced against the Party and the proceedings are not dismissed within forty -five (45) days after the date of commencement. K. The Party makes an assignment for the benefit of its creditors, or admits in writing of its inability to pay its debts generally as they become due. 8 210384 L. The attachment, execution or other judicial seizure of any property of the Party and such seizure is not discharged within ten (10) days. 11. Inapplicability of Cure Periods. All cure periods provided in this Agreement shall be inapplicable if the default is not capable of being cured within the time allowed, or in NoaNet's reasonable judgment, a delay in NoaNet's enforcement of its rights and remedies may result in a material impairment of NoaNet or the other Participants from receiving their share of the Award or completing their share of the work under the Award. 12. Remedies. A. Right to Complete Construction. Upon the occurrence of an Event of Default by a Participant, NoaNet shall have the right, in person or by agent and in its own name or the name of Participant, to take possession of the Participant's share of the Work and perform any and all work and labor necessary to complete construction of the improvements in accordance with the Award and this Agreement. Participant hereby irrevocably authorizes NoaNet (exercisable only after an Event of Default) to complete the improvements in the name of Participant and to (a) use the Grant funds and NoaNet's funds for the purpose of completing the improvements; (b) make such additions, changes and corrections in the plans and specifications and budget as NoaNet in its reasonable discretion deems desirable; (c) employ such contractors, subcontracts, agents, architects and inspectors as shall be required for such purposes; (d) pay, settle or compromise all bills and claims which may be liens against the property (including those against any equipment that is being acquired or improved pursuant to the Award) or as may be necessary or desirable for the completion of the improvements, for operating the facilities pending such completion, or for clearance of title; (e) execute all applications and certificates in the name of Participant which may be required by any of the contract documents; (f) prosecute and defend all actions or proceedings in connection with the property being acquired or improved and take such action and require such performance as NoaNet deems necessary with respect to any payment or performance bonds or applicable guaranties; and (g) do any and every act which Participant might do in its own behalf in order to complete the improvements pursuant to the Award. If NoaNet advances its own funds to complete construction, Participant shall reimburse NoaNet upon demand for such advances, together with interest at the default rate of twelve (12 percent per annum. To the extent that NoaNet's employees spend time performing or monitoring the performance of the Work under the subsection, then NoaNet will also be entitled to be reimbursed for its time at reasonable rates, as NoaNet may determine. B. Right to Stop Payments. Upon the occurrence of an Event of Default by a Participant, NoaNet shall have the right to withhold any further payments to Participant until the Event of Default has been cured or the default has been remedied by NoaNet and the expenses and damages incurred by NoaNet in remedying the default have been reimbursed out of the funds being withheld or from the Participant directly. NoaNet may use any portion of the funds being withheld to 9 210384 pay for the cost of completing the Work and performing any of the other actions as described in Section 12.A above or obtaining insurance under Section 7.D. C. Termination. Upon an Event of Default by a Participant, NoaNet may, on thirty (30) days additional notice to the Participant, terminate Participant from further participation in the Award and terminate that Participant's rights under this Agreement, provided, however, that any such termination shall not alter or alleviate any obligation or requirement of such Participant to meet all terms and conditions of the Award, or release, modify or alter the Federal interest in the Property, including any Property that forms any part of the Cash Contribution or In- Kind Services such Participant has agreed to provide. D. Default by NoaNet. Upon the occurrence of an Event of Default by NoaNet that materially adversely affects the Participants, then, upon an affirmative vote of two- thirds of the Participants (based upon their share of the Award, disregarding NoaNet's share), the Participants shall have the right, subject to applicable approval from the Agency, to appoint a new administrator (the "New Administrator provided that the New Administrator is a Public Party. Upon that event, the New Administrator will have all of the authority of NoaNet to administer the Award and shall have the right in person or by agent and in its own name or the name of NoaNet, to take possession of NoaNet's share of the Work and perform any and all work and labor necessary to complete construction of the improvements in accordance with the Award and this Agreement. NoaNet hereby irrevocably authorizes New Administrator (exercisable only after an Event of Default) to complete the improvements in the name of NoaNet and to (a) use the Grant funds and New Administrator's funds for the purpose of completing the improvements; (b) make such additions, changes and corrections in the plans and specifications and budget as the New Administrator in its reasonable discretion deem desirable; (c) employ such contractors, subcontracts, agents, architects and inspectors as shall be required for such purposes; (d) pay, settle or compromise all bills and claims which may be liens against the property (including those against any equipment that is being acquired or improved pursuant to the Award) or as may be necessary or desirable for the completion of the improvements, for operating the facilities pending such completion, or for clearance of title; (e) execute all applications and certificates in the name of NoaNet which may be required by any of the contract documents; (f) prosecute and defend all actions or proceedings in connection with the property being acquired or improved and take such action and require such performance as the New Administrator deems necessary with respect to any payment or performance bonds or applicable guaranties; and (g) do any and every act which NoaNet might do in its own behalf in order to complete the improvements pursuant to the Award. If the New Administrator advances its own funds to complete construction, NoaNet shall reimburse the applicable New Administrator upon demand for such advances, together with interest at the default rate of twelve (12 percent per annum. To the extent that the New Administrator's employees spend time performing or monitoring the performance of the Work under the subsection, then the New Administrator will also be entitled to be reimbursed for its time at reasonable rates, as the New Administrator may determine. 10 210384 E. Remedies Not Exclusive. No remedy conferred upon or reserved to NoaNet herein shall be exclusive of any other remedy provided herein or by law or in equity, and each shall be cumulative and shall be in addition to every other remedy given NoaNet herein or now or hereafter existing at law or in equity or by statute. NoaNet at its sole option, without limiting or affecting any rights and remedies hereunder, may exercise any of the rights and remedies to which it may be entitled hereunder concurrently or in such order as NoaNet may determine. The exercise of any rights of NoaNet shall not in any way constitute a cure or waiver of an Event of Default or invalidate any act done pursuant to any notice of default or prejudice NoaNet in the exercise of any of its rights. No failure of NoaNet to enforce its rights, remedies, or options shall be deemed to be a waiver of any such rights, remedies or options. 13. No Partnership /Joint Venture. NoaNet and each of the Participants are entering into this contract to facilitate independent work by each of the Parties. The nature of the relationship among the Parties is contractual and this Agreement shall not be construed as creating a joint venture or partnership. Instead, each Party assumes its own risks and will be entitled to the benefits from its share of the work contemplated by the Grant. 14. Representations. A. NoaNet and each Participant hereby represents and warrants that it has full power and authority to enter into and perform its obligations under this Agreement and the Award and is duly and validly existing, and in good standing under the laws of the State of Washington. For the purposes of this Agreement, (the "Tribal Participant adopts the laws of the State of Washington that pertain to the interpretation, performance, and enforcement of contracts and commercial transactions. B. The execution, delivery and performance of this Agreement by the Party and the consummation of the transactions contemplated hereby have been duly and effectively authorized by all necessary actions of the Party. This Agreement has been duly and validly executed and delivered by the Party and constitutes the valid and binding obligation of that Party, enforceable in accordance with its terms, subject to (i) applicable bankruptcy, insolvency or other similar laws relating to creditors' rights generally, and (ii) general principles of equity. Without limiting the foregoing, the Tribal Participant expressly represents and warrants that its execution, delivery, and performance of this Agreement have been duly and effectively authorized by its Tribal Board of Directors or Council, as applicable, and no other tribal action is necessary, including, without limitation, for the limited waiver of sovereign immunity set forth in Section 181 The Tribal Participant's Board of Directors' or Council's approval and authorization of this Agreement and its adoption, for the purposes of this Agreement, of the laws of the State of Washington that pertain to the interpretation, performance, and enforcement of contracts and commercial transactions, shall be conclusively evidenced by a written resolution of its Board of Directors or Council that is certified by the Secretary of such Board of Directors or Council and provided to NoaNet within five (5) days of such Tribal Participant's execution of this Agreement. 11 210384 C. The execution, delivery and performance by the applicable Party of this Agreement and the consummation by that Party of the transactions contemplated hereby will not (a) violate any provision of law, rule or regulation to which the Party is subject, (b) violate any order, judgment or decree applicable to Each Party, (c) constitute a breach of or a default under any constitutional, statutory or administrative provision of the State of Washington applicable to such Party or any judgment, decree, bond, note, resolution, indenture, contract or agreement or any other instrument to which such Party is subject or bound, or (d) conflict with, or result in a breach or default under, any term or condition of any agreement or other instrument to which the Party is a party or by which the Party may be bound. D. Each Party hereby represents and warrants that there is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency, public board or administrative body pending or threatened against such Party that challenges, contests or questions the adoption or validity of the applicable Party's decision to enter into this Agreement or to receive the Grant funds or do the work contemplated by the Grant, that seeks to prohibit, restrain or enjoin such Party from complying with this Agreement, that affects or questions the validity or enforceability of this Agreement, or that challenges or affects the corporate existence of such Party or the titles of its officers. E. No warranty or representation by the Party contained in this Agreement or in any writing furnished or to be furnished in connection with the Grant hereto, contains or will contain any untrue statement of material fact or omits or will omit to state any material facts required to make the statements herein contained not misleading. F. There is no litigation, proceeding, claim or investigation or other legal or administrative proceeding (governmental or otherwise) pending or, to the Party's actual knowledge, threatened against, by or relating to the Party, its assets, business, or method of doing business that would preclude the Party from entering into this Agreement or consummating the transactions contemplated by this Agreement. G. Each Party affirms that it has not been notified of any default under any agreement or order, writ, injunction or decree of any governmental agency or any court, to which it is a party or by which it is bound, and that Party is not aware of any default by that Party under any of its contracts with governmental agencies. H. During the past three (3) years, no contracts with a governmental agency in which the Party was an active participant have been terminated for cause relating to that Party. 15. Confidentiality. Each Party shall treat all information made available to or disclosed to any other Party as a result of or related to this Agreement or the Award which is either marked as confidential or is reasonably known by the Party to contain confidential information, as confidential and shall not disclose or use such confidential information for the benefit of any person other than the Parties. Without 12 210384 limiting the foregoing, the parties agree that any engineering data or formulas exchanged between or among the parties will be deemed confidential information. Further, each Party will receive such confidential information and use it for the sole purpose of use in connection with the Work or the administration of the Award. Except as required by law, each Party agrees not to disclose any such confidential information to persons other than the Agency, or to employees, officers, directors, attorneys or consultants who have a need to know this information and who will use the information only for assisting that Party for the uses set forth herein. If a Party that has received confidential information (the "Receiving Party is requested or required to disclose any of the confidential information pursuant to law or legal process, the Receiving Party will notify the Party from whom it received that confidential information (the "Disclosing Party of such request or requirement as soon as reasonably possible so that the Disclosing Party may, at its own expense, pursue all available remedies to prevent such disclosure, including but not limited to, a protective order. The Receiving Party shall cooperate with the Disclosing Party in any attempt by the Disclosing Party to prevent such a disclosure and, if required to disclose any of the confidential information despite attempts by the Disclosing Party to prevent the same, will disclose only that part of the confidential information that it is required to disclose. Regardless of the foregoing, however, if the confidential information is subject to the public records law, Chapter 42.56 RCW, then the Disclosing Party agrees to hold the Receiving Party harmless from any penalties, attorneys' fees or costs that might be awarded to the applicable requesting party. 16. Further Services. A. Services of NoaNet. NoaNet and each of the Participants have discussed entering into agreements whereby NoaNet will provide certain services to the Participants with respect to their facilities. These contracts may contain provisions dealing, without limitation, with some or all of the following: procurement of materials, equipment, and services; environmental studies; right -of- way /permit acquisition; outside plant fiber plant design; construction management; facilities maintenance; reporting requirements; compliance monitoring; payment application recommendation; traffic planning; safety monitoring; construction monitoring and reporting; and construction close -out. NoaNet and Participants agree to negotiate in good faith towards any such agreements, but such agreements are not a condition to this Agreement or to the Award. Regardless of the foregoing, a Participant may elect not to negotiate such contracts with NoaNet. B. Purchase and Use Agreements. NoaNet and each of the Participants have discussed entering into future agreements whereby NoaNet will purchase access to their respective telecommunication networks. NoaNet and Participants agree to negotiate in good faith towards such agreements, but such agreements are not a condition to this Agreement or to the Award. 17. Intellectual Property Rights. All reports, data, software, patents, copyrights, trade secrets, trademarks or other intellectual property rights, or other material given to, or prepared or assembled by a Party in connection with the Work or the Award shall be and remain the property of the Party who prepared or otherwise 13 210384 owned the applicable reports, information, data or other intellectual property rights. The Parties acknowledge, however, that these rights are subject to the Department's rights in such intellectual property pursuant to 15 CFR 14.36 and 24.34, as applicable, as well as those contained in Section M.04 of the Department of Commerce Financial Assistance Standard Terms and Conditions, and the statutes and rules incorporated therein. 18. General. A. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior agreements with respect to the subject matter of this Agreement. Notwithstanding this provision, this Agreement is not intended to be inconsistent with, nor to supersede, the terms of any other agreement remaining in effect to which any Participant is a party. B. Amendments. No change, amendment, or modification of any provision of this Agreement shall be valid unless set forth in a written amendment to this Agreement signed by all Parties. C. No Unspecified Third Party Beneficiaries. There are no unspecified third party beneficiaries of this Agreement. D. Notices. All notices hereunder shall be in writing and shall be deemed given: (a) on the date of delivery if delivered in person; (b) on the day after it is placed with a nationally recognized overnight delivery service, such as FedEx or UPS for delivery the next day; (c) three (3) days after the date deposited in the United States mail if sent by registered or certified mail, postage prepaid; or (d) on the date sent by electronically- confirmed facsimile or email transmission followed up with one of the other delivery modes set forth herein. All such notices and communications shall be properly addressed at the addresses below their signatures to this Agreement, or to such other address as any Party may, in the future, designate in writing. E. Legal and Tax Review. NoaNet and each of the Participants acknowledge that they have been advised by legal counsel regarding the legal matters concerning this Agreement and by legal counsel and /or tax advisors regarding the tax matters concerning this Agreement, and they have had a sufficient opportunity to do so prior to execution hereof. Without limiting the foregoing, NoaNet expressly disclaims any responsibility to provide legal advice to the Participants. Each of the Participants further recognize that Gordon Thomas Honeywell LLP has represented NoaNet and has not represented the Participants in this transaction. F. Taxes. Each Party is responsible for determining what taxes the Party will incur as a result of the transactions contemplated by this Agreement. Each Party will pay their applicable taxes when such taxes are due. G. Waiver. Except as otherwise provided in this Agreement, or as agreed in writing by the Parties, no provision of this Agreement may be waived except 14 210384 as documented or confirmed in writing. Any waiver at any time by a Party of its right with respect to a default under this Agreement, or with respect to any other matter arising in connection therewith, shall not be deemed a waiver with respect to any subsequent default or matter. H. Headings. The headings in this Agreement are for convenience only and do not in any way limit or affect the terms and provisions of this Agreement. I. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. J. Venue/ Jurisdiction /Limited Waiver of Sovereign Immunity. 1. The Parties (other than the Tribal Participant) consent to the personal jurisdiction of the courts of the State of Washington and the United States District Court for the Western District or Eastern District of Washington with respect to any lawsuit to interpret or enforce this Agreement, and agree that the venue of any such lawsuit shall be King County, Washington or such United States District Court unless otherwise agreed by such Parties. ii. The Tribal Participant acknowledges and agrees that, in entering into this Agreement, it may incur obligations to the other Parties and their successors and assigns. The Tribal Participant further acknowledges that the other Parties would not enter into this Agreement with the Tribal Participant if the Tribal Participant could defeat enforcement of the Agreement against it by claiming or asserting sovereign immunity from any action brought against it by any other Party arising from this Agreement. The Tribal Participant expressly and irrevocably consents to the personal jurisdiction of the United States District Court for the Western District or Eastern District of Washington with respect to any lawsuit to interpret or enforce this Agreement, and agrees that the venue of any such lawsuit shall be such United States District Court. The Tribal Participant expressly and irrevocably waives its sovereign immunity on a limited basis to make this Agreement enforceable by any other Party and their successors and assigns in the United States District Court for the Western District or Eastern District of Washington as provided herein and to waive any requirement for exhaustion of tribal remedies and jurisdiction in the tribal court of the Tribal Participant. ili. The consents to jurisdiction and venue, and the limited waiver of sovereign immunity, set forth in this Section 18J shall also apply to review in any appellate court with jurisdiction over the applicable trial court decision. K. Attorneys' Fees. In the event any Party to this Agreement finds it necessary to bring any suit, action, or other proceeding at law or in equity to interpret, enforce, or implement any of the terms, covenants, or conditions of this Agreement, the Party prevailing in such action or proceeding shall be paid all of its reasonable attorneys' fees, costs and expert witness fees by the losing Party or Parties. If there is no prevailing party, the Parties to the dispute shall each bear their own attorneys' fees and costs. 15 210384 L. Severability. If any term, covenant, or condition of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained in this Agreement. M. Signature Clause. Each Party to this Agreement represents that it has the authority to execute this Agreement and that it has been duly authorized to enter into this Agreement. Without limiting the foregoing, each of the Tribal Participants further expressly reaffirms its representations and warranties set forth in Section 14 of this Agreement. N. Counterparts. This Agreement may be executed in one or more counterparts, and each shall be considered an original when the signatures of each of the Parties has been obtained. 0. Effective Date. This Agreement shall be effective as of the date first above written. Northwest Open Access Network, a Washington nonprofit mutual corporation By: By: Its: Its: Address: Address: By: By: Its: Its: Address: Address: By: By: Its: Its: 16 210384 Address: Address: By: By: Its: Its: Address: Address: 17 210384 EXHIBITS Exhibit A Financial Assistance Award Exhibit B Award Budget Exhibit C re In -Kind Services Exhibit D 74 FR 31410 (7/1/09) Exhibit E Covenant of Purpose, Use and Ownership Exhibits Description of Work by NoaNet and the Participants 18 210384 EXHIBIT E COVENANT OF PURPOSE, USE AND OWNERSHIP THIS COVENANT OF PURPOSE, USE AND OWNERSHIP dated this day of 20_, by and between whose address is (hereinafter with its successors and assigns called "Recipient and the National Telecommunications and Information Administration "NTIA through the [National Oceanographic and Atmospheric Administration "NOAA [National Institute of Standards and Technology "NIST in its capacity as the BTOP Grants Office, UNITED STATES OF AMERICA, whose address is (hereinafter with successors and assigns called "NOM "NIST RECITALS WHEREAS, Northwest Open Access Network, a Washington non profit mutual corporation "Applicant submitted an application to NTIA for financial assistance under the Broadband Technology Opportunities Program "BTOP pursuant to the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111 -5, 123 Stat. 115 (Feb. 17, 2009) (hereinafter the "Act and WHEREAS, by offer of Award, dated NTIA offered to Applicant a financial assistance award designated as Award No. (the "Award in the amount of (hereinafter called "Award Amount to assist in financing (hereinafter called "Project and WHEREAS, Recipient is the Applicant or a first tier recipient, that is, one of the parties who will be receiving portions of the Award; and WHEREAS, during the period of the Award, to execute such Project, Recipient has acquired or improved real property using Award funds or the Recipient or a third party has contributed real property to the Project a portion of which is described in Exhibit "A" attached hereto and incorporated herein (hereinafter with all improvements thereto called the "Property and WHEREAS, Applicant accepted the Award by signing Form CD -450 (together with all documents attached thereto or incorporated therein, the "Award Agreement issued in connection with the above- referenced Award Number, thereby binding itself and making itself subject to the terms and conditions contained in the Award Agreement including, without limitation, the applicable requirements of 15 C.F.R. Parts 14 or 24, as applicable, and the terms of the Notice of Funding Availability, 74 Fed. Reg. 33104 (Jul. 9, 2009); Recipient hereby ratifies that acceptance on its own behalf to the extent it receives portions of the Award; and WHEREAS, the Award Agreement provides the purposes for which the Award Amount may be used and provides, inter alia, that Recipient holds title to the Property in trust for the public purposes of the Project, and may not sell, lease, transfer, convey, hypothecate, mortgage, or otherwise alienate any right to or interest in the Property, or use the Property for purposes other than, and different from, those purposes set forth in the Award Agreement and the application made by Recipient therefore (hereinafter called "Project Purposes without the approval of NTIA, such alienation and use being prohibited by 15 C.F.R. Parts 14 or 24, as applicable; and WHEREAS, NTIA is not authorized to grant such approval unless NTIA is repaid its share of the current fair market value of the Property, as set forth below; WHEREAS, Recipient as owner of all or part of the Property, agreed to record this Covenant in the appropriate office for the recording of public records affecting real property in the jurisdiction where the Property is located so as to constitute notice to all persons of the restrictions contained herein on title to and use of the Property for the benefit of the public purposes of the Project; and WHEREAS, the located at is the proper office to record this covenant: NOW THEREFORE, in consideration of financial assistance rendered and /or to be rendered by NTIA, and of other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and to assure that the benefits of the Project will accrue to the public and be used as intended by both NTIA and Recipient, Recipient hereby covenants and agrees as follows: 1. The estimated useful life of each element of the Property as determined by the BTOP Schedule of the Useful Life of Property, is set forth in Exhibit B hereto. 2. Recipient agrees that for the useful life set forth above, Recipient will not lease, sell, transfer, convey, hypothecate, mortgage, or otherwise alienate any interest in the Property, nor shall Recipient use the Property for purposes other than the Project Purposes without the prior written approval of the [NTIA] Grants Officer, or his /her designee or successor. Such approval may be withheld until such time as Recipient first pays to NTIA the Federal Interest in the Property. The Federal Interest is that percentage of the current fair market value of the Property attributable to the NTIA participation in the Project. NTIA's percentage participation in the Project is hereby agreed to be (XX percent. After the end of the useful life of an item, then Recipient may sell the item (or the Property if the useful life of all elements of the Property) has expired, then this restriction will no longer apply and Recipient will not be required to pay any portion of the fair market value of the property to NTIA. 3. Recipient further covenants that, except as provided in Section 2 above, in the event NTIA permits the Property to be used for purposes other than the Project Purposes, or if the Property is sold, leased, transferred, conveyed, hypothecated, mortgaged, or otherwise alienated, Recipient will compensate the Federal Government for the Federal Interest in the Property. 4. Recipient further agrees that, as a prerequisite to [or condition of if the funds are disbursed before recordation] accepting the disbursement of any portion of the Award Amount, Recipient shall provide NTIA with evidence that it has executed and placed on record against the Property, this Covenant of Purpose, Use and Ownership. Recipient further agrees that until the end of the useful life of the Property as set forth on Exhibit whenever the property is sold, leased, or otherwise conveyed pursuant to 15 C.F.R. Parts 14 or 24, as applicable, if Federal Government has not been fully compensated for the Federal Interest in the Property, Recipient or the transferor shall add to the document conveying such interest a statement that title is transferred subject to this Covenant of Purpose, Use and Ownership. NTIA will in its sole discretion determine whether the Covenant is satisfactory. 5. It is stipulated and agreed that the terms hereof constitute a reasonable restraint on alienation of use, control, and possession of or title to the Property given the Federal Interest expressed herein. 6. This covenant shall run with the land until the Federal Interest is discharged. IN WITNESS WHEREOF, the recipient has hereunto set their hand as of the day and year first above written by their duly authorized officer. A completed duly recorded copy of this Covenant shall be forwarded to [operating unit]. (The appropriate acknowledgment must be included for recording in Recipient's jurisdiction.) ATTEST: By: Title: Exhibit A (Legal Description of the Property) Exhibit B (BTOP Schedule of the Useful Life of Property) Recipient: By: Title: August 25, 2010 BROADBANDUSA CONNECTING AMERICA'S COMMUNITIES EXHIBIT B (to EXHIBIT E) FACT SHEET Broadband Technology Opportunities Program Useful Life Schedule Buildings Outside Plant Towers and Poles Network and Access Equipment Operating Equipment Customer Premise Equipment Construction of new buildings, prefabricated buildings, or concrete pads Modification, rehabilitation, or outfitting of existing buildings ei Aerial coaxial plant, aerial copper plant, aerial fiber plant, buried copper plant, buried coaxial plant, buried fiber plant, underground plant, taps. amplifiers, drops, NIDs, etc. a Construction of new towers or poles or modifications of existing towers or poles E Emergency power generation equipment at tower site Broadband switching equipment, broadband routing equipment, broadband transport equipment, network broadband access equipment (e g., CMTSs, DSLAMs, Radio Network Controllers, etc.), wireless base stations, antennas, emergency power supply equipment is Billing /Operations systems El Office fumiture and fixtures EV Work equipment and vehicles w Customer broadband access equipment (e.g., cable modems, DSL modems, wireless modems, etc.), general purpose computers and peripheral equipment, office machinery 20 years rri 15 years 20 years BE 20 years 10 years E 10 years a 10 years 10 years cl Five years for non construction related motor vehicles; 10 years for work related motor vehicles a Five years Fact Sheet: Useful Life Schedule Version 1 1 Your New AMI Svstem Bonneville Power Administration will be 'raising power, rates `across the.Pacific Northwest later this year The City's electnCand ;Water are old and :need to'be replaced with future -ready technology meters new opportunities for you to use power when it's: least•expensive •,Advanced Metering infrastructure (AMI) ;enhances'the City's ;',:abilities to run utilities`at ;;thelowest possible cost W,hat',to, 201 AII City electricity and wate meters,, will be replaced'by.the end of 201:1 You will know in advance. when your meters will be' installed AMI meters send, readings via; wireless and fiber optic.tethnology IMleters!are'accurate and ,future` ready tReceive'tips for, controlling your °bill: and saving energy': The City will keep communicating with every step.,of"the way Visit:. www.cityofpa.us /newnieters htm Or call 360 -417 -4595 PORTA AMI System AM Owen ew=The Sen sNe Next Step far the My ol port A eIles Background on AMI AMI stands for Advanced Metering Infrastructure It's a wireless and fiber optic -based system, similar to wireless Internet and cable TV technologies, for metering both water and electricity We're installing this new infrastructure because the City's old meters are wearing out Many of them are no longer accurate As a result, it is not possible for the City to fully comply with state and federal mandates, such as water metering accuracy It's also a fairness issue with inaccurate metering, some customers may not be paying for all of the power and water they use The new system is financially sound, future friendly, and fair Electricity is becoming more expensive In October 2011, BPA will increase the electricity rates they charge the City AMI will provide all customers ways to control their bills by us- ing power when it's least expensive, so you can minimize the impact of BPA's upcoming rates And because the system automatically reads both electric and water meters, the City will be able to operate your utilities at their lowest possible cost The installation process Water and electric meters will be installed neighborhood by neighborhood The new "smart meters" will be installed starting in May 2011 All of the new meters are sched- uled to be installed by the end of 2011 You will receive written notice via a door hanger that your water or electric meter will be installed within three days A separate notice will be provided for each of your new meters You do not need to be home when either meter is installed In most cases, power or water is shut off for only five to ten minutes while a new meter is installed All electricity- driven clocks and other timed devices will need to be reset after electric meter installation, all appliances with battery back -ups should function normally When you first use your water after the change -over, you might experience a "burp" of air and some residue at each outlet If that happens, just run your water briefly until it flows nor ally For the large majority of \customers, the only work required will be the installation of the meters, and the City pays fir the costs of the meters and their installation Based on the experience of other utilities, the City may discover safety issues in meter bases during the installation of the new meters This condition might affect 1% to 3% of all customers (Continued on back page) Did you know? The Bonneville Power Administration (BPA) is increasing rates for electricity throughout the Pacific Northwest in October 2011 Port Angeles customers will see new rates beginning in early 2012 New rates will be tied to the time of day, day of the week and time of year New rates will be most expensive when electricity is used by the most customers (called peak demand periods) Starting in early 2012 customers will have more information on their bills because of the AMI system Bills will show how much electricity you use when rates are highest so you can control your costs if you want to by shifting use to lower -cost time periods The installation process (continued) What will change —and what will stay the same The benefits for residents and the community AMI brings many benefits to the City's customers and the region In the event that a safety repair is needed at an owner occupied home or at a non profit organization, after receiving your permission, the City will provide up to $750 worth of safety repairs to your electric meter base and provide up to $750 worth of plumbing repairs for water meter bases Any costs over $750 are the customer's responsibility For commercial and rental property customers, the cost of all safety issues related to the new meter installations are the full responsibility of the customer The City will work with you to schedule and complete any needed repairs These safety repairs are being completed and financed by the City to benefit the City's commitment to keeping the program on schedule and on budget The repairs are limited to those necessary to install the new meters If you have questions about the installation process, contact the City at 360- 417 -4595 We will share more information once the installation schedule is set You will still receive a bill from the City for your water and electricity usage and you can pay the same way you always have However, you won't have meter readers coming into your yard, and if there is a power outage or leak in the water system, we will know about it immediately and can take quick steps to fix it You will also have more information about your rates and usage, so you can choose to shut off or turn down appliances during the time that electricity costs the most, or discover water leaks around your home more quickly Customers will be able to manage and possibly decrease their utility bills by using power when it's cheapest Because the new meters are highly accurate, customers can be sure that they are being charged fairly for both their water and electricity Residents will also have access to more information about the electric rates they pay (electricity is more expen- sive during "peak demand periods" when many people and businesses are using a lot of electricity at the same time) The AMI system will enhance the City's ability to run your electric and water utilities efficiently and at the lowest cost possible There will be lower meter reading costs, and the City will have more information to help with managing electricity use during periods when there's more demand, and responding to customer inquiries The AMI system will also help the City's ability to comply with federal and state mandates State -of- the -art meters bring more conservation opportunities such as smart appliances and smart grid technologies as they become more commonplace For example, a voluntary pilot program is planned to give residents the tools to automatically adjust water heaters and thermostats during periods when electricity is most expensive These smart thermostats and water heater controls will give customers more tools for controlling their electricity usage and costs For more information about the new AMI system, please contact newmeters @cityofpa.us, call 360- 417 -4595 or visit www.cityofpa.us /meters.htm AMI System !SENSIBLE NExTSTEP Frequently Asked QuesVois What is AMI? AMI stands for Advanced Metering Infrastructure It's a system that uses wireless and fiber optic technology to send your meter readings to the City All electricity and water meters are scheduled to be replaced with state -of -the art meters by the end of 2011 Why change the meters now? This is the perfect time to make this change, because the rates the Bonneville Power Adminis- tration (BPA) charges for power are going up, and the meters we have now are wearing out. Customers will have more control over their bills, and the City will be able to improve service and operate your utilities at their lowest possible cost Do I have to pay for installing my new meters? For the large majority of customers, the only work required will be the installation of the new meters, and the City pays for the costs of the meters and their installation How much is the AMI System costing our City? The cost of the entire system including the new meters, installation and the communication infrastructure —is $5 4 million If we instead replaced all the worn out meters and infrastructure with the same technology we have today, it would cost much more over the long -run and you wouldn't have tools to help keep your power and water costs down —and neither would the City The AMI system will be paid for through rates and with grant funds provided by the BPA Property taxes are not used to fund any activities of the City utilities When will my new electricity and water meters be installed? For residential customers, installations will be completed one neighborhood at a time between May and the end of 2011 Electric and water meters will be installed on different days Commercial and all other customers are on a different installation and notification schedule How will I be notified about when my meters will be installed? You will receive written notice via a door hanger that your water or electric meter will be installed within three days A separate notice will be provided for each of your new meters You do not need to be home when either meter is installed Can I get an exact date for my meter installation? No Once we know when crews will be in your neighborhood, you will receive a door hanger that your water or electric meter will be installed within three days For the system to work properly, each neighborhood's meters and wireless communication system must be completely installed before moving on to the next, influencing when other neighborhoods are scheduled Severe weather may also impact the installation timeline What do I have to do to be ready for my new meter installations? Please make sure there is free and safe access to your existing electric and water meters, and that no obstructions are in the way If you are unable to do this, please call us at 360- 417 -4595 after you receive your door hanger installation notice and we will work with you to find a solution How long will I be without power or water during installation? Five to ten minutes is typical How should I prepare if I have life- sustaining medical equipment? Electricity will be shut off for about 5 -10 minutes but we recommend that you be prepared for longer, just in case If you have life- sustaining medical equipment that cannot be interrupted during Installation, you need to have a back -up power source running during installation It is your responsibility to always have a back -up power source Please call us at 360- 417 -4595 or email us at newmeters @cityofpa us so we are aware of your medical equipment ahead of time For more information, ple newmeters@cityofpa.us, call 360- 417 -4595 or visit www.cityofpa.us/newmeters.htm (l& PORTgA,ce r What if I have a fire sprinkler system? To ensure the correct meter size is available, all customers with fire sprinkler systems are requested to call us at 360- 417 -4595 or email us at newmeters@cityofpa us What do I need to do after the meters are installed? All electricity driven clocks and other timed devices will need to be reset after electric meter installation, all appliances with battery back -up should function normally When you first use your water, you might experience a "burp" of air and some residue at each outlet If that happens, just run your water briefly until it flows normally Are electricity rates going up? The Bonneville Power Administration (BPA) is increasing rates and tying rates to how much demand there is for electricity —so the time of day, day of the week, and time of year will all influence the cost The average Port Angeles household could see an increase starting in early 2012 The new AMI meters will give you information on your bill that can help you control costs if you adjust some of your power use to times when power is less expensive Will my bill go up even if I'm using the same amount of electricity and water as before? Some bills will go down, some will go up and some will stay about the same The new meters are nearly 100% accurate, so customers with older meters may see an increase in their bill because the amount of power and water actually used was under- measured in the past When the new system is fully installed, customers can choose to use electric appliances, like their clothes dryer, when power is less expen- sive— lowering their bill What makes "smart meters" different from the meters we have? A smart meter measures how much water or electric- ity is used every hour instead of on a monthly basis The readings allow the City to manage overall system use and detect any problems, such as water leaks or downed lines, very quickly In the future, "smart appliances" will allow customers to reduce power use by providing personal control over when electricity flows into the appliances Smart meters will help you and the City get the most benefit possible as new smart grid technologies become commonplace What is the technology that reads my meter and sends it to the City? Is it safe? Your new meters use wireless and fiber optic technology—just like wireless Internet and cable TV —to send and receive information from the City The meters and com- munication system meet all federal safety standards and codes Is my personal energy and water use information confidential? Yes First, the only information communicated is your meter number and your electricity and water usage (the same information that was displayed on the old conventional meters at your premises) Second, your utility usage information will be safely transmitted over secure networks to and from the City As is true now, your utility usage information will be protected and secure The City must also comply with federal laws regarding the privacy, protection and disclosure of personal information What about repairs made for safety; who pays for that? Based on the experience of other utilities, the City may discover safety issues in the electrical and water meter bases during the installation of the new meters This condition might affect 1% to 3% of all customers In the event that a safety repair is needed at an owner occupied home or at a non profit organization, after receiving your permission, the City will provide up to $750 worth of safety repairs to your electric meter base and provide up to $750 worth of plumbing repairs for water meter bases Any costs over $750 are the customer's responsibility For commercial and rental property customers, the cost of all safety issues related to the new meter installations are the full responsibility of the customer The City will work with you to schedule and complete any needed repairs These safety repairs are being completed and financed by th "City to benefit the City's commitment to keeping the program on schedule and on budget The repairs are limited to those necessary to install the new meters Didn't see an answer you were looking for? Please contact newmeters@cityofpa us, call 360- 417 -4595 or visit www cityofpa us /newmeters htm