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Agenda Packet 02/12/2002
PORT ANGELES, WA FEBRUARY I 2, 2[302 3:[30 P.h4. AGENDA I. CALL T° ORDER II, ROLL CALL III, APPROVAL OF MINUTES FOR .IANUARY APPROVAL OF MINUTES FGR ,IANUARY 2C:~ ~[30~ (SPECIAL MEETING) IV. DISCUSSION ITEMS A. AMENDMENT OF BY-LAWS B, MINIHUlVl LANDFILL RATE C. WASTEWATER TREATMENT PLANT OPERATING SYSTEM AND d. KLEINSCHMIDT OGNTRAOT [3HANGE ORDER (MEHG DISTRIBUTED AT MEETINB) K, WPAG ANNUAL ABREEMENT M. RAYGNIER LEACHATE REPORT V. NEXT HEETING MARCH 1 ~ VI, AD,JGL/RNHENT UTILITY ADVISORY COMMITTEE SPECIAL MEETING Port Angeles, Washington January 22,2002 L Call to Order: ~,~'~- Chairman Bentley called the meeting to order at 3:00 p.m. II. Roll Call: Members Present: Chairman Bentley, Councilman Campbell, CouncilmemberErickson, Councilmember Rogers, Dean Reed Members Absent: None. Sta£fPresent: Craig Knntson, Glenn Cutler, Scott McLain, Gary Kenworthy, Larry Dunbar Others Present: None. III. ~4djourn To Executive Session: Chairman Bentley adjourned the meeting to Executive Session at 3:05 p.m. to discuss a matter of potential litigation. IV. Return to Open Session: The meeting returned to Open Session at 4:40 p.m. V. ~4djournment The meeting was adjourned at 4:40 p.m. Allen Bentley, Chairman N:kPWKS\LIGHTXCONS\CATEksp¢cial.wpd 1/24/02 UTILITY ADVISORY COMMITTEE Port Angeles, Washington January 7, 2002 L Call to Order: ~n~ Chairman Reed called the meeting to order at 3:00 p.m. II. Roi! Call: Members Present: Chairman Reed, Councilman Campbell, Councilmember Erickson, Councilmember Rogers, Allen Bentley Members Absent: None Sta£fPresent: Michael Quinn, Craig Knutson, Tim Smith, Ken Ridout, Scott McLain, Gary Kenworthy, Larry Dunbar, Doyle McGinley, Cate Rinehart Others Present: Bill Roberds - Capacity Provisioning Pete Grigorieff- Northland Cable TV Chairman Reed requested Scott McLain, Deputy Director of Power Systems, give an overview of the committee functions. At the conclusion of the overview introductions were made to the new committee members. III. Approval of Minutes: Chairman Reed asked if there were any changes or additions to the agenda. A request was made to change the UAC meeting dates. Chairman Reed stated the item would follow as Discussion Item D. Chairman Reed asked ii' there were any additions or corrections to the meeting minutes of December 10, 2001. None were given. Allen Bentley moved to approve the minutes. Councilman Campbell seconded the motion, which carried unanimously. IV. Election of New Officers Chairman Reed requested nominations for Chairman. Councilman Campbell nominated Allen Bentley. The nomination carried unanimously. Mr. Bentley accepted. Chairman Reed requested nominations for Vice Chairman. Councilmember Erickson nominated Councilman Campbell, which also carried unanimously. Mr. Bentley indicated he would reside as Chairman starting with the February meeting. V. Discussion Items: A. Cable Television Franchise Formal Renewal Proposal Denial Larry Dunbar, Power Resources Manager, reviewed the franchise background and goals according to the UTILITY ADVISORY COMMITTEE January 7, 2002 Cable Communications Policy Act. A review was given regarding the findings of the community needs and interests report. Additionally, an analysis was given of the formal and informal franchise renewal time lines and milestones. A lengthy discussion followed with concems expressed by Northland Cable over confusion regarding understanding the process and the timing of the process. Pete Grigorieff, Northland Cable, indicated there may have been a misunderstanding concerning the procedure and the requirements. Allen Bently moved to recommend City Council render a preliminary decision to deny the Cable Operator's formal renewal Proposal and authorize informal negotiation to continue through May of 2002. Councilman Campbell moved to second the motion. There was a short discussion in which a request was made for the cable company to be allowed to present its view in detail. Allen Bently moved to withdraw his original motion. Councilman Campbell likewise moved to withdraw his second to the original motion. Councilmember Rogers moved to table the issue until the next meeting in February. Councilmember Erickson seconded the motion, which carried unanimously. Staff was directed to copy ali correspondence concerning the matter for a better understanding of communication on both sides. B. BPA Rates Update Scott McLain, Deputy Director of Power Systems, reviewed the history of the recent rate increase including a detailed explanation. Mr. McLain stated the rates would be analyzed every six months with the next notification by BPA on February 15th and any change implemented April 1 st. No action taken. Information only. C. Kaptain Kilowatt Awards Larry Dunbar, Power Resources Manager, mentioned the need to promote energy awareness as part of BPA's Community Challenge program. To encourage this awareness a poster contest for school age children was promoted with winners selected based on content, creativity, and presentation. A total of thirteen children participated. Certificates of appreciation along with awards will be given by the Mayor at the January 15th Council meeting. No action taken. Information only. D. UAC Date Change Councilmember Erickson requested a date change from Monday at 3 p.m. due to possible future schedule conflicts. The Utility Advisory Committee By-Laws state amendments may be made at any regular meeting by the affirmative vote of three members of the Utility Advisory Committee, provided that the proposed amendment has been submitted in writing at a previous meeting. After a short discussion the decision was reached to meet the second Tuesday of each month. Councilmember Erickson submitted the request in writing. The regular meeting of February 1 lth was changed to a special meeting February 12th with this as an agenda item. 2 UTILITY ADVISORY COMMITTEE January 7, 2002 V. Late Items: None VII. Next Meeting: The next meeting will be held February 12, 2002 at 3:00 p.m. VIII. Adjournment: The meeting adjourned at 4:40 p.m, Dean Reed, Chairman Cate Rinehart, Administrative Assistant 1/9/02 N 5PWKS~LIGHTxCONS\CATE\j an7meet.wpd 3 pORT/ NGELES WASHINGTON, U.S.A. CITY CLERK January 10, 2002 TO: Scott McLain, Deputy Director of Power Systems FROM: Becky J. Upton, City Clerk/Management Assistant~)'~ SUBJECT: Proposed Amendment to Utility Advisory Committee By-Laws At your request and as a follow-up to Councilmember Erickson's suggestion, I have incorporated a proposed revision to the Utility Advisory Committee By-Laws changing the date of the regular UAC meetings. Section V.A. Regular Meetings, previously read: "The regular monthly meeting for the Utility Advisory Committee shall be held on the Monday after the first Tuesday of each month at 3:00 P.M. in the Port Angeles City Hall, except as otherwise designated by the Utility Advisory Committee." The proposed language for Section V.A. Regular Meetings, is: "The regular monthly meeting for the Utility Advisory Committee shall be held on the second Tuesday of each month at 3:00 P.M. in the Port Angeles City Hall, except as otherwise designated by the Utility Advisory Committee." Draft By-Laws reflecting the proposed revision are attached for your reference. It is my understanding that a vote on this proposed amendment will take place at the February 12, 2002, meeting of the Utility Advisory Committee. Therefore, the meeting of February 12 will constitute a special meeting and will require appropriate public notice. Please provide me with the agenda information, so I can proceed with the public notice. Attachments BY-LAWS UTILITY ADVISORY COMMITTEE PURPOSE AND DUTIES. The purpose and duties of the Utility Advisory Committee of the City of Port Angeles shall be as set forth in Chapter 2.68 of the Port Angeles Municipal Code, a copy of which is attached to these By-Laws and incorporated herein by this reference. II MEMBERSHIP AND ORGANIZATION. The membership and organization of the Utility Advisory Committee of the City of Port Angeles shall be as set forth in Chapter 2.68 of the Port Angeles Municipal Code. III NOMINATION AND ELECTION OF OFFICERS. Nomination of elective officers shall be made from the floor at the annual election meeting, which shall be held at the first regular meeting of e~ear. The election shall follow immediately ~ereafter. Officers shall be nominated and~m theirs of th~tteF no~iiving a majority vote of those present a~tion mt~/~g gl~l~tll be'~l~ect~acancies ~ctive offices shall be filled unmediately by regular election procedure for the remainder of the year. IV DUTIES OF OFFICERS. A. Chairman. The Chairman shall preside at all meetings of the Utility Advisory Committee and shall call special meetings when necessary or required to do so. The Chairman shall have the privilege of discussing all matters before the Utility Advisory Committee and voting thereon. The Chairman shall have all the duties normally conferred by parliamentary usage on such officer and shall perform such other duties as may be ordered by the Utility Advisory Committee, except as otherwise provided in these By-Laws or City Ordinances. B. Vice-Chairman. The Vice-Chairman shall assume the duties and powers of the Chairman in his absence. If the Chairman and Vice-Chairman are both absent, the Utility Advisory Committee members present may elect a temporary Chairman by a majority vote of those in attendance. -1- V MEETINGS. A. Regular Meetings. The regular monthly meeting for the Utility Advisory Comtmttee shall be held on the second Tuesday of each month at 3:00 P.M. in the Port Angeles City Hall, except as otherwise designated by the Utility Advisory Committee. B.Order of Business. (1) Call to order by Chairman. (2) Roll call. (3) Approval of minutes of preceding meeting. (4) Regular business. (5) Late items. VI PROCEDURES. A. Parliamentary Procedure. Procedures in Utility Advisory Committee meetings shall be governed by Robert~Orde~d (1979~n), unl~rwise~ by these By-Laws. B.Voting~s of tl~ Adv~t~nmitte.~all be by a~jority vote of those present. Ifa member is present but does not vote, such member shall be determined to have voted "yes" at the time the vote is taken. VII AMENDMENTS. 2these By-Laws may be amended at any regular meeting by the affmnative vote of three members of the Ut/lily Advisory Committee, provided that the proposed amendment has been submitted in writing at a previous meeting. -2- WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 TO: UTILITY ADVISORY COMMITTEE FROM: Tom McCabe, Solid Waste Superintendent Subject: Minimum Fee at Port Angeles Landfill Summ~ary: The Port Angeles Landfill has had a constant increase in the number of self-haul vehicles annually. The increase has caused extra workload for the staff. It is proposed to increase the minimum fee for disposal. The Solid Waste Advisory Committee endorsed the proposed increase at the January 17, 2002 meeting. Recommendation: UAC forward a favorable recommendation to City Council to amend Chapter 13.56.020A to increase the minimum rate at the Port Angeles Landfill from $2.00 to $7.00, effective Monday April 1, 2002. Background / Analysis: Information was presented to the Utility Advisory Committee on December 10, 2001. The Utility Advisory Committee requested staff to take the proposal to SWAC for their endorsement, and for Landfill staff to conduct a random survey on the average cost per vehicle. Attached are the results of the random survey and the letter from SWAC. This change will not affect the people hauling residential yard waste which is currently free. Solid Waste Staff would inform users of the landfill about the minimum rate change as follows: · Utility Bills · Channel 21 & 3 · Radio Advertisements · Landfill Scales · Newspaper · Home Show ( If approved by City Council February 19, 2002) Attached: UAC Memo 12/10/01 Random Survey SWAC Letter ,The fgUowing chart is a random count done by the scales. Date Day Total Vehicles Under $5.00 Under $7.00 Above $7.00 June 6 Wednesday 242 61 ( 25% ) 93 ( 38% ) 88 ( 37% ) June 16 Saturday 459 135 ( 29% ) 188 ( 41% ) 136 ( 30% ) I July 7 Saturday 474 134 ( 28% ) 188 ( 40% ) 152 ( 32% ) July 13 Friday 364 95 ( 26% ) 140 ( 38% ) 129 ( 36% ) July 17 Tuesday 285 90 ( 32% ) 118 ( 41% ) 77 ( 27% ) July30 Monday 385 114 ( 30% ) 145 ( 38% ) 126 ( 32% ) August 1 Monday 312 92 ( 30% ) 123 ( 39% ) 97 ( 31% ) August 10 Friday 317 127 ( 40% ) 156 ( 49% ) 34 ( 11% ) August 15 Wednesday 301 90 ( 30% ) 114 ( 38% ) 97 ( 32% ) August21 Tuesday 337 111 ( 33% ) 146 ( 43% ) 80 ( 24% ) Augus~ 30 Friday 283 91 ( 32% ) 119 ( 42% ) 73 ( 26% ) September 5 Wednesday 300 95 ( 31% ) 129 ( 43% ) 76 ( 26% ) September 13 Thursday 243 79 ( 33 % ) 102 ( 42% ) 62 ( 25% ) September 18 Tuesday 273 85 ( 31% ) 104 ( 38% ) 84 ( 31% ) September29 Saturday 483 153 ( 32% ) 219 ( 45% ) 111 ( 23% ) October 3 Wednesday 267 72 ( 27% ) 98 ( 37% ) I 97 ( 36% ) October 9 Tuesday 270 80 ( 30% ) 112 ( 41% ) 78 ( 29% ) October 19 Friday 237 70 ( 29% ) 100 ( 43% ) 67 ( 28% ) October27 Saturday 319 110 ( 35% ) 157 ( 49% ) 52 ( 16% ) November 2 Friday 267 76 ( 28% ) 103 ( 39% ) 88 ( 33% ) November 6 Tuesday 248 64 ( 26% ) 91 ( 37% ) 93 ( 37% ) November 17 Saturday 457 161 ( 35% ) 227 ( 50% ) 69 ( 15% ) November 26 Monday 300 92 ( 31% ) 133 ( 44% ) 75 ( 25% ) December3 Monday 262 84 ( 32% ) 111 ( 42% ) 67 ( 26% ) December 6 Thursday 188 63 ( 34% ) 76 ( 40% ) 49 ( 26% ) Dex:ember 11 Tuesday 211 74 ( 35% ) 97 ( 46% ) 40 ( 19% ) December 15 Saturday 318 136 ( 43% ) 162 ( 51% ) 20 ( 6% ) December 19 Wednesday 206 65 ( 32% ) 88 ( 43% ) 53 ( 25% ) December21 Friday 267 99 ( 37% ) 130 ( 49% ) 38 ( 14% ) December 26 Wednesday 323 134 ( 41% ) 180 ( 56% ) 9 ( 3% ) Average 307 98 ( 32% ) 132 ( 43% ) 77 (25%) * Column number five is vehicles over $5.00 but less than $7.00. CLALLAM COUNTY SOLID WASTE AD VISORY COMMITTEE January 25, 2001 Board of Clallam County Commissioners c/o Clallam County Public Works Department P. O. Box 863,223 East Fourth Street Port Angeles, WA 98362-0149 Subject: Base Fee Increase at Landfill Dear Commissioners: At the January 17, 2002 Solid Waste Advisory Committee (SWAC) meeting, the City of Port Angeles presented a proposal to increase the base fee at the landfill fi.om $2.00 to $7.00. Information to support the increase was presented by Mr. Tom McCabe, Utility Superintendent for the City's Solid Waste Division. Issues raised were the possibilities of increase in illegal dumping, storage of refuse for larger loads possibly contributing to vermin or creating an attractive nuisance. Mr. McCabe indicated that research has determined these concerns were of little significance in other counties were the base landfill fees have been raised. Also noted was that the City has not raised the base fee for 10 years and that surrounding counties have minimum rates ranging fi.om $5 to $11. The SWAC appreciates the City's bringing this proposed change to our attention, and recognizes that approval by the SWAC is not required nevertheless, the SWAC has voted to support the increase proposed by the City for a minimum base landfill use fee increase not to exceed $7.00. dc.~/ City of Port Angeles Utilities Advisory Committee c/o City of Port Angeles Public Works Department po tA. WASHINGTON U.S.A. UTiLiTY ADVISORY COMMITTEE MEMO DATE: December 10, 2001 To: UTILITY ADVISORY COMMITTEE FROM: Tom McCabc, Solid Waste Superintendent Subject: Minimum Fee at Port Angeles Landfill Summary: The Port Angeles Landfill has had a constant increase in the number of self-haul vehicles annually. The increase has caused extra workload for the stale It is proposed to increase the minimum fee for disposal. Recommendation: Recommend the UAC forward a favorable recommendation to City Council to amendment Chapter 13.56.020A to increase the minimum rate at the Port Angeles Landfill from $2.00 to $7.00 effective March 1, 2002. Background / Analysis: There has been a steady increase in the volume of the self-haul customers at the landfill. This has caused an increase in the number of transactions at the scale shack and increased traffic volume. King, Snohomish, and Pierce Counties have increased their minimum rate to reduce the amount of self-haul customers with minimal adverse comments. The counties did not report and increase in illegal dumping upon implementation of higher fees. It is anticipated that the rate increase will reduce the frequency of self haulers at the landfill. The following chart has been developed to show the increase in trips for self haulers. Port Angeles Landfill Self-Haul Customer Count: Year Self Hauler Trips Per Cent Increase 1998 73,729 Baseline 1999 77,191 4% 2000 81,315 10% 2001 86,263 (Projected) 17% UAC Memo 12/10/01 Landfill Minimum Fee Page 2 The following table is a survey of the minimum charges at some landfills and transfer stations in Washington State. A survey of Landfills / Transfer Stations: Location Landfill / Transfer Station Minimum Rate Walla Walla Landfill $5.95 King County Landfill $13.72 Oak Harbor Transfer Station $11.00 Olympic View Landfill $3.61 Thurston County Landfill $9.95 Port Townsend Transfer Station $5.00 West Waste Transfer Station $4.20 It is recommended that the minimum rate at the Port Angeles Landfill be increased fi'om $2.00 to $7.00 effective March 1, 2002. This equates to a minimum load increase from 52 pounds to 182 pounds. N:\PWKS~SWASTELMinimum Fee Landtill.wpd pORTANGELES WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 5, 2002 TO: UTILITY ADVISORY COMMITTEE FROM: JeffYoung, WWTP Supt. SUBJECT: Wastewater Treatment Plant Operating System and Software upgrade Summary:. The Wastewater Treatment Plant (WWTP) needs to upgrade the existing software and hardware so operators can add new equipment. This upgrade will also allow increased automation at the WWTP. Staff has investigated the different soflware packages and options available to upgrade the WWTP operating control system and determined that using the existing S&B Inc. software is in the City's best interest. Recommendation: UAC recommend City Council approve the purchase of operating software and associated hardware for the City's Wastewater Treatment Plant, and authorize the Cit Manager to sign a contract to complete the work for a price not to exceed $68,700, not ineludin tax. Background / Analysis: The original plant controller (PLC) and software was installed in 1993 by S&B Inc. as part of the plant expansion to secondary treatment. Resolution No. 10-99 was passed in May of 1999, designating S&B Inc. as the sole source provider for software at the WWTP. S&B Inc. replaced the obsolete graphics and scanning system and added new software to make the WWTP Y2K compliant. The WWTP needs to upgrade the existing software and hardware so operators can add new equipment including the standby generator and other WWTP modifications. This upgrade will allow for the WWTP to become more automated. This change in software and related hardware is being requested because the existing control strategy lacks flexibility in operating the plant, and staff cannot make changes or edit existing alarms. This would also add the capability to make changes to allow the addition of new equipment to the controls. Currently to add or change the alarm points we have to call S&B to write a new line of code. This can add up to substantial annual cost. With this upgrade, staff will be able to make modifications and/or adjustments in-house without the time and expense of calling in S&B programmers each time we want to make a change. This will be similar to what is done for the Water SCADA system that was designed and installed by S&B Inc. The 2002 budget contains $69,000 for this acquisition. N:\TEMPX$&b2-02Rev.wpd WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 To: UTILITY ADVISORY COMMITTEE FROM: Jeff Young, Wastewater Treatment Plant Superintendent SUBJECT: Processing and Application of City of Forks Biosolids Summary: The City of Forks has requested that our Wastewater Treatment Plant (WWTP) accept and process up to 200,000 gallons ofbiosolids annually from their Wastewater Treatment Plant (WWTP). The biosolids generated would be about 30,000 pounds or 15 tons. We currently process I about 20 tons a month at our own WWTP. This is land applied on local farm fields in July of each year. This additional 15 tons should not cause the Port Angeles WWTP any problems in processing, storing or land applying and is within our existing permit limits. We also have sufficient acreage in our land application program to apply these additional biosolids. Rec.~ommendation: UAC recommend City Council enter into an inter-local agreement with the City of Forks to receive up to 200,000 gallons of biosolids at fifteen cents ($0.15) a gallon. Background / Analysis: The City of Forks has requested that the City enter into an agreement to process their WWTP biosolids. They have been working with the Department of Ecology (DOE), to plan a long term solution to their land application. DOE also contacted City of Por~ Angeles staff to see if thc City was interested in working with Forks to process and dispose of their biosolids. DOE has reviewed the request from Forks and has provided a letter supporting the processing of Forks' biosolids at the Port Angeles WWTP. The City of Forks has provided an analysis of their biosolid contents. It is very similar to the sludge we currently process and is within the levels allowed by our permit for various metals. With Council approval o£the agreement, the City of Forks will hire a trucking firm to deliver thc biosolids to the Port Angeles WWTP. The additional biosolids can be processed at the City's WWTP with no detrimental effects on the system. The normal cost of septage disposal at the Port Angeles WWTP is eleven cents ($0.11) per gallon. Biosolids disposal at fifteen cents ($0.15) per gallon covers the additional administrative, storage and land application costs associated with the biosolids disposal. Attachment: City of Forks February 5, 2002 le~er DOE letter C:\ww~WlEMOS\uac\forks.wpd CRy of Porl 321 East .5 St. Port Angek:~, WA 983~2 T~ Ci~? of ~ is expl~g Ci~ of~s w~wnt~ ~t pill ~e ~on ~o ~e t~a~e~ ~d ~s~s~ of ~d ~. ~ l~ i~ o~ ~uest W ~t~ if ~he ~s~io~ of the bioso~ds to t~ CiW of P~ ~I~ w~'a~r ~t~nt f~iB~ ~ bion~ will ~ ms~d inf~fi~ ~1 ~ ~vi~ to ~. It ~ ~je~ I ~i~ yo~ help m ~ develop~ of ~ ~t ~ ~ ~ve h~ ~n coordinat~ wi~ you ~ ~ City ofP~ ~1~, ~ Ci~' ofForks ~d ~nt of ~ology. ~e City of Fo~ ~n~ i$ UtiliW ~~ 02/07/02 15:20 ~'208 ~74 0430 ClI'Y OF F~K$ ~]OO~ ~ The City of Forks r~ ~o 4i~po~ of between 10 to 40 dry tons of biosolid$ per year with au agIr. e, tn~n! to do so for $ lo 10 year~. The City of Porks would arrange for the trnnsport~i~ of the biosolJds w yom ~aeility a~ a time co¢~wnient to your pla~t The City of Forks would like to know if the City of Port Angeles is willing to accept the biosolids into their ti, eatme:~t plant and if so what the conditions of the sludge acceptance and o~ts associated would bt. PI~ advise th~ City of Foz~ at },out earliest convenielle¢. H you have any quest, iotas of oon~r~ns r~gardi~ this proposal, please f~e] ~ to cont~c¢ me at the above number. Ned,s Mayor City of Forks zo: ~o l~bU4~ /4~41 CITY OF PORT ANGELES PAGE 02 FEB-08-2002 FR] 10;]@ AH DOE Sw REGIONAL OFFICE FAX NO. ~040~30., P, 02 DEPAR]'N~E~T OF ~C()LC~GY Mt Jeff-Young City of Po~ Angeles Waste Water T{eatmem ]Plant 321 East 5th ~tr~t P,O, Box ] 1 S0 Po~ ~g~gs, WA 98362-02]~ ~: Request for Approval of Acceptance cfB[osolids from ~he City ofFo~ks. W~shin~on D~r Mr. Young Th~ Dcp~mcnl of~co]ogy (~eo]ogy) this correspondence you r~lueslcd, l~t~er from ~co]o~y supposing the acceptanc~ of 20 dry tons o~bio~lids per ymr from the CiW of Forks. ~ [ subs~uem conversatio~ earlier ruddy, you indiul~d t~t a five-year a~eement is being developed. 1 h~ ~i~cuss~d ~h~s m~ttcr wi~ D~vM Doughe~y fr~m ~cology's Water Quali~, Ptu~m is the p~mit m~nag~r Fo~ wnt~ quality permits issued to both f~cil[ties ~n question, E~logy h~s no obj~tions and suppo~s transfer ofbios~ii~s from the CiW o~ FoF~s to ~he Pon ~ele~ Waste Wal~ Tr~em Plato lfI may be of~ a~ist~ce, plc~ ~nla~ pertaining to any water q~ity co~rns, please conta~ ~ Doughe~y at (360) 40%6278 Chuck ~hew~ Regional Solid W~tc S~cialist Solid ~a~ ~ ~in~ncial Assistance cc: Dnvid ZelI~, City of Forks Kyle Dor~y, Stnte Biosolids Coor~inn~or D~vid Doughe~y, ~CY WQ WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 To: UTILITY ADVISORY COMMITTEE FROM: JeffYoung, WWTP Superintendent SUBJECT: Acceptance of Septage from Clallam County Haulers __Summary-i Lakeside Corporation has agreed to provide a Septage Acceptance Plant (SAP) free oi charge until March 6th, 2002. To be able to have a meaningful test of the SAP we need to process a steady supply of septage during this demonstration period. This will require the use of Clallam County septic haulers. City Ordinance No. 3906 requires City Council approval to permit any out of City waste to be taken at the WWTP. With City Council approval staffwill issue a short term (not to exceed 30 days) Industrial Waste Permit and Septic Hauler Permit to septic haulers within Clallam County. Recommendation: The Utility Advisory Committee forward a recommendation to approve issuing Industrial Wastewater Acceptance and Septic Waste Hauler permits to septic pumpers within Clallam County for the period from February 20, 2002 to March 6, 2002. Also to waive permit fees for this demonstration project and charge for septage disposal and treatment at our current rate of eleven cents ($0.11) per gallon. Background / Analysis: Staffhas budgeted for the addition of a SAP at the WWTP for 2002. Many options are being considered. A proposal has been made by Goble Sampson Associates (manufacturers representative) and Lakeside Corporation that will give their equipment a fair test and presents many benefits to the City. A Model 31SAP has been delivered and set up at the Wastewater Treatment Plant (WWTP). Lakeside Corporation would like the City to operate the SAP as much as possible. This will require staffto solicit Clallam County septic pumpers to provide a steady supply of septage for this testing period. Staff will be able to analyze various plant loadings and installation locations that would simulate actual conditions. Septic haulers will be charged eleven cents ($0.11) a gallon to treat their wastes. Staff would like to offer the use of the SAP to the haulers that have expressed a desire to be included in the demonstration. Staffrecommends that the City Council waive all permit fees for this demonstration period. Lakeside appreciates the opportunity to test their equipment and expects neither payment or a purchase agreement. N:\TEMP\lakesideuacRev.wpd pORTANCE:LES WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 TO: UTILITY ADVISORY COMMITTEE FROM: GLENN A. CUTLER, DIRECTOR OF PUBLIC WORKS AND UTILITIES RE: Proposed Code to form Storm and Surface Water Utility. Summary: Public Works and Utilities Engineering with assistance from the City's engineering consultant, Brown & Caldwell has prepared a draf~ Storm and Surface Water Utility Code for consideration by the UAC. The Utility is required to fund staffing and activities to meet the requirements of the federal Endangered Species Act (ESA) and National Pollution Discharge Elimination System (NPDES) Phase II Stormwater programs. In addition the utility would fund a capital program of stormwater facilities to improve the quality of life and improve the environment. Recommendation: Approve Public Works and Utilities proceeding with development of the i Storm and Surface Water Utility based on the proposed code addition. Background / Analysis: In mid 2001 Council approved proceeding with the development ora Stormwater Utility for implementation early in 2002. The utility is needed to fund mandated stormwater management requirements of the federal Endangered Species Act (ESA) and National Pollution Discharge Elimination System (NPDES) Phase II Stormwater programs. The ESA requires prohibition on any activities which harm endangered species and applies to all City activities including, but not limited to construction projects, operation and maintenance activities, water intakes, erosion control practices, and all construction and new development activities permitted by the City. The stormwater management activities required by NDPES includes public education and outreach, public involvement and participation, illicit discharge detection and elimination, construction and post-construction site stormwater runoff control, and pollution prevention for municipal operations. The Washington Department of Ecology which administers and enforces the NPDES requirement has developed a Stormwater Management Manual for Western Washington which, when adopted by a local agency, meets these requirements. The City's current clearing, grading, filling and drainage ordinances do not meet the ESA and NPDES requirements. Due to the public and private development costs of implementation and enforcement the formation of a utility has not been supported in the past. The ESA requirements became effective January 2001. The NPDES current date for compliance is March 2003 for listed Cities. Port Angeles is a listed city, but is noted as pending further study. It is not anticipated that the noted further study will remove us from the list due to our status as a CSO (combined sewer overflow) area. N:~PROSECTS~21 - 12STRM$\utiluac.wpd The City's consultant, Brown & Caldwell, provided example ordinances and codes from similar Washington cities for our review. The attached storm and surface water code proposed for Port Angeles was derived primarily from the municipal codes of the Cities of Bainbridge Island and Mount Vernon. With concurrence of the Utility Advisory Committee regarding the proposed code language we will proceed with preparation of supporting ordinances, public meetings and outreach program, rate structure assessment and billing procedures development, and presentation materials for an initial Public Hearing tentatively scheduled for April 16, 2002 followed by a second Hearing for adoption on May 7, 2002. Following adoption the first tasks will involve implementation of the billing system and hiring an additional engineer to implement the stormwater program. July 1, 2002 is the target date for implementation of the billing system. The proposed storm and surface water utility is intended to be straight forward and simple for ease of implementation and support. The key elements of the code are as follows: I. Administered by Director of Public Works and Utilities and covers storm and surface waters within the City. 2. Adopts existing City Stormwater Plan and Urban Services and Guidelines. The Urban Standards and Guidelines will apply to development standards for the UGA. 3. Adopts the Stormwater Management Manual for Western Washington developed by DOE. City will be required to update the Urban Services and Guidelines to conform to the manual in order to meet ESA and NPDES requirements. 4. Establishes a basic residential fee of $6.00 to $8.00 per month. Commercial/multiple properties will be multiples of the residential fee based on impervious areas divided by equivalent residential impervious area (2,500 SF ). 5. Exempts City, State, and Private Streets along with City owned properties and other public owned or private properties having their own NPDES permitted storm and surface water facilities not discharging to the City facilities. 6. Provides for rate reductions for those properties having installed retention facilities or disconnected roof drains from the City sewer system. The $6.00 to $8.00 per month fee will generate an estimated $750,000 to $1,000,000 annually. Adoption of the DOE stormwater management manual will help protect us from third party lawsuits under ESA and it will bring the City into compliance with NPDES permitting requirements. The utility will reduce general fund street costs and other utility funds expenditures now diverted for storm and surface water maintenance and improvements. One added engineering position for implementation and administration of new the requirements and one added field operation position to support will be new maintenance requirements. In addition the utility will fund a capital improvement program to construct needed improvements to protect property and the environment. Some examples of areas needing storm drainage include the bluff areas, "C" street extension area, Rose/Thistle/Canyon Edge area, and the Porter/Grant area. In addition to the proposed stormwater utility code the memo, meeting minutes, and presentation slides from the June 5,2001 Council meeting regarding proceeding with the stormwater utility are attached. N:hnROJECTS~21 - 12STRM$\utiluac.wpd Chapter 13.63 STORM AND SURFACE WATERS Sections: 13.63.010 Utility established. 13.63.015 Jurisdiction. 13.63.020 Plan adopted. 13.63.030 Transfer of property. 13.63.040 Cost. 13.63.050 Definitions. 13.63.060 Fee imposed. 13.63.065 Automatic annual fee adjustment. 13.63.070 Single-family and duplex residential fees. 13.63.080 Commercial/multiple fees. 13.63.082 Exemptions 13.63.084 Private storm water retention system rate reduction. 13.63.085 Rate for disconnection of property with disconnected roof drains. 13.633086Application for rate reductions - Appeal. 13.63.090 Unused 13.63.100 Billing and payment. 13.63.110 Remedies - Termination of water service. 13.63.120 Lien for service - Interest. 13.63.130 Inspections - Right of entry - Emergency. 13.64.200 Severability. 13.64.010 Utility established. There is created and established a storm and surface water utility. The utility shall be administered under direction of the Director of Public Works and Utilities. 13.64.015 Jurisdiction. The city shall have jurisdiction over all storm and surface water facilities within the city. No modifications or additions shall be made to the city's storm and surface water facilities without the prior approval of the city. 13.64.020 Plan adopted. The system or plan of the storm and surface water utility shall be (1) the Stormwater Management Plan prepared by Economic and Engineering Services Inc. dated June 1996 and adopted by the city council on December 17, 1996, (2) applicable sections of the Urban Services Standards and Guidelines dated October 1995, and (3) the Stormwater Management Manual for Western Washington, dated August 2001. The Urban Services Standards and Guidelines shall be revised to reflect the requirements of the Stormwater Management Manual for Western Washington. 13.63.030 Transfer of property. All properties, property rights and interests of every kind or nature owned or held by the city, however acquired, insofar as they relate to or concern storm or surface water sewage are transferred to the storm and surface water utility, including by way of examples and not limitation, all properties, rights and interests acquired by adverse possession or by prescription in and to the drainage and storage of storm or surface waters over and under lands, watercourses, streams, ponds and sloughs to the full extent of inundation caused by the largest storm or flood condition. 13.63.040 Cost. Since the city now owns all the facilities, rights and interests set forth in PAMC 13.63.020 and 13.63.030, there is no estimated cost. 13.63.050 Definitions. The following definitions shall apply to this chapter: A. "Commercial/multiple property" means and includes all property zoned or used for multifamily, commercial or retail uses. B. "Impervious area" means any part of any parcel of land that has been modified by the action of persons to reduce the land's natural ability to absorb and hold rainfall. This includes areas which have been cleared, graded, paved or compacted. Excluded, however, are all lawns, agricultural areas, and landscaped area. C. "Single -Family and duplex property" means and includes all property used for single family and duplex residential uses and is estimated to have an average impervious surface area of 2500 square feet. 13.63.060 Fee imposed. The owners of all real property in the city which contributes drainage water to and/or which benefits from the city's storm water utility shall pay a monthly fee as set forth in this chapter. 13.63.065 Automatic annual fee adjustment. The fees described in PAMC 13.63.070, as now existing and as subsequently amended, shall be adjusted on an annual basis beginning January 1st of each year, unless the city council determines by December 31st of any year that the adjustment shall not occur for the next year. The adjustment shall bc equal to the annual rate of increase in the Seattle Area Consumer Price Index (CPI-U) for the most recent period available prior to January 1 st. 13.63.070 Single-family and duplex residential fees. Thc monthly service fee for each single-family and duplex residential dwelling shall be $6.00 less an amount as established by resolution of the city council. 13.63.080 Commercial/multiple fees. The monthly fee for all commercial/multiple property shall be calculated by dividing the total impervious area in square feet by the 2500 square feet, rounded down to the whole number, times the single family and duplex residential fee. 13.63.082 Exemptions. City Streets, State Highways, private streets with storm and surface facilities in place meeting City standards, City owned properties, and other publicly or private owned properties having their own NPDES permitted storm and surface water runoff facilities not discharging to City facilities shall be exempted from charges under this system and structure of rates. 13.63.084 Private storm water retention system rate reduction. For any property other than a single-family residence or duplex residential dwelling, if the property owner (1) has been required by either the city January 15, 1993, to install a private storm water retention system as a condition of thc property's development or (2) has installed voluntarily since January 15, 1993, a private storm water retention system serving the property and meeting city standards at the time of installation, the city may at its sole discretion reduce by up to 50 percent the storm and surface water service monthly fee charged for the property pursuant to PAMC 13.63.080. The rate reduction authorized by this section shall not be used in conjunction with any other rate reduction authorized by this title. 13.63.085 Rate for disconnection of property with disconnected roof drains. For any property where the property owner, at any time prior to a notice of corrective work, or within the time period provided by a notice of corrective work issued to the property owner pursuant to PAMC disconnects all roof drains located on the property from the city's sanitary sewer system and permanently seals the ingress point(s) of the drain(s), the city shall waive the annual storm and surface water service fee otherwise assessed against the property pursuant to this chapter for a period of three years from the date of thc disconnection. Upon the expiration of thc three-year waiver provided in this section, thc property shall again be assessed at the applicable rate, as provided by this chapter. 13.63.086 Application for rate reductions - Appeal. A. In order to qualify for exemptions or rate reductions set forth in PAMC 13.63.082 13.63.084 and 13.63.085, the property owner must file an application with the Director of Public Works and Utilities by November 15th of the year prior to the year in which the rate reduction is to be effective. B. Any person aggrieved by any decision of the Director of Public Works and Utilities relating to an application for exemption or rate reductions authorized by PAMC 13.63.082 13.63.084 and 13.63.085 may appeal the director's decision to the City Manager and/or City Council within 30 days of the date of the director's decision. 13.63.090 Unused 13.63.100 Billing and payment. The city shall bill storm and surface water utility service accounts monthly in the same manner as water and sewer bills. 13.63.110 Remedies - Termination of water service. The Director of Public Works and Utilities or designee is authorized to terminate water service to any customer who fails to pay the storm and surface water utility service fees imposed by this chapter in the same manner as delinquent water bills. Termination of such water service shall not limit other remedies available to the city. 13.63o120 Lien for service - Interest. Pursuant to RCW 35.67.200 et seq. the city shall have a lien for delinquent and unpaid storm water sewer charges. A sewer lien shall be effective for a total not to exceed one year's delinquent service charges without the necessity of any writing or recording of the lien with the county auditor. Enforcement and foreclosure of any sewer lien shall be in the manner provided by state law. Interest on the unpaid balance shall be eight percent per annum or higher rate as authorized by law. 13.63.130 Inspections - Right of entry - Emergency. The city is authorized to enter at all reasonable times in or upon any property, public or private, for the purpose of operating or maintaining the storm and surface water facilities, or to inspect or investigate any condition relating to the storm and surface water utility; provided, that the city shall first obtain permission to enter from the owner or person responsible for such premises. If entry is refused, the city shall have recourse to every remedy provided by law to secure entry. Notwithstanding the foregoing, whenever it appears to the city that conditions exist requiring immediate action to protect the public health or safety, the city is authorized to enter at all reasonable times in or upon any property, public or private, for the purpose of inspecting, investigating or correcting such emergency condition. 13,24.200 Severability. If any section, sentence, clause or phrase of this chapter should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this chapter. pORTANGELES W ~ $ H I N G; T O N, U.S.A. GITY DATE: June 5, 2001 TO: MAYOR DOYLE AND CITY COUNCIL FROM: Glenn A. Cutler, Director of Public Works and Utilities SUBJECT: WORKSHOP TO CONSIDER FORMATION OF A STORMWATER UTILITY Summary: A presentation will be given by the City's Wastewater/Stormwater Consultant, Brown & Caldwell, on the City's current stormwater management program, future needs and rational for forming a stormwater utility. Recommendation: Direct the Director of Public Works and Utilities to proceed with the development of a Stormwater Utility for implementation on January 1~ 2002. Background / Analysis: In the City's current contract with Brown & Caldwell we included a task to provide an analysis to assist us in determining the differences between our existing stormwater program and the mandated stormwater management requirements of federal programs (Endangered Species Act (ESA) and National Pollution Discharge Elimination System (NPDES) Phase 11 Stormwater) impacting our wastewater and stormwater systems. Brown & Caldwell has completed the initial gap analysis and their findings were presented to the UAC meeting on May 7, 2001. This gap analysis evaluated the current City codes, policies, organization, funding, staffing, and activities in place and what revisions and added fimding would be required to bring the City into compliance with the existing and pending mandated requirements for stormwater management. Mr. James Hansen of Brown & Caldwell will be making a workshop presentation to Council regarding the gap analysis, the need for a funding source, and present a schedule for implementation. He, as well as staff, will be available to answer questions. N APROJECTS~21 - 12STRM$~storm.wpd CITY COUNCIL MEETING June 5, 2001 Hire a Vet Month (Cont'd) John Braasch, Veterans Employee Representative for Clallam and Jefferson Counties, accepted the proclamation, noting that he helps find work for veterans. Mr. Braasch expressed his appreciation to the Council for recognizing veterans and their numerous abilities. WORK SESSION: Mayor Doyle summarized the memorandum from Public Works & Utilites Director Cutler on the recommended formation of a Stormwater Utility. Director Cutler Stormwatar Utility introduced Mr. James Hansen, Brown & Caldwell, who gave a powerpoint presentation Formation that established the rationale for foiming such a utility. Mr. Hansen informed the Council of current regulations in place that dictate the need for a Stormwater Utility, such as the Endangered Species Act (ESA), the National Pollutant Discharge Elimination System (NPDES) Phase II Stormwater Permitting, and Govemmem Accounting Standards Board Statement 34 (GASB 34), all of which set the stage for the City's need for a Stormwater Utility. In that more regulations are on the horizon, Mr. Hansen cautioned the Council on the potential of third party lawsuits. He felt it important for the City to provide formalized training for personnel, public education and involvement, and to identify a consistent source of funding for the utility. Mr. Hansen discussed the present structure for stormwater management through the effort of several departments, and he suggested the formation of a single point of responsibility for the utility. Mr. Hansen addressed the potential for grant funding, as well as the need to provide an equitable distr/bution of costs. He reviewed revenue requirements in the short and long terms, and he discussed the various possibilities in developing a rate structure. Councilman Campbell asked for further information on grant funds available, and Mr. Hansen responded there are State funds available via a very competitive process. Couneilmember Erickson questioned the status of Port Angeles' stormwater management at the present time, and City Engineer Kenworthy cited specific areas in Port Angeles that lack any type of stormwater management, thus resulting in high erosion. Mr. ltansen added thatexcessive mn-offand erosion is killing the surrounding habitat. Councilman Williams expressed his concern with how much this type of facility would cost the taxpayers, and he voiced his dissatisfaction with yet another unfunded mandate being cast on the City. Discussion followed regarding impacts to fish habitat, the increased size of detention ponds, and costs that could be attributed to operation and maintenance as opposed to capital. Engineer Kenworthy added that by adopting the regulations, the City would be showing a good faith effort to be in compliance. Attorney Knutson interjected that the City is working with the County toward meeting the requirements of the 4(d) Rule as relates to the National Marine Fisheries Service declaring Puget Sound chinook salmon to be a threatened species under the ESA. To that end, the City could gain protection against third party lawsuits, as one of the aspects of the 4(d) Rule is to have a valid stormwater management plan. In the ensuing discussion, consideration was given to the challenge of educating the public on the prevailing problems associated with stormwatar management. Councilmember Erickson felt that a series of public meetings was needed to address this issue and she, therefore, moved to direct staff to develop a series of public meetings to inform citizens on the formation of a Stormwater Utility. The motion was seconded by Councilman Wiggins. Councihnember Erickson spoke to the motion, noting her concern with the expected electric increases and the fact that yet another increase for stormwatar management may not be well received by the public. The Council discussed the importance of public education and identified various means by which communications could take place, such as in the City newsletter, on Channel 21, advertisements, and the like. Manager Quiun acknowledged the Council's concern about public education, and he supported sponsoring several public meetings in order -2- CITY COUNCIL MEETING June 5, 2001 WORK SESSION: to rectify this concern. Staffhad envisioned complete involvement of the public in this (Cunt'd) discussion, and Director Cutler offered more specific information as to the public process to be implemented. Councilmember Erickson, therefore, withdrew the Stormwater Utility motion, and Councilman Wiggins withdrew the second. Formation (Cont'd) After further limited discussion, Councilmember Ericksun moved that the Director of Public Works & Utilities proceed with the development of a Stormwater Utility for implementation on January 1, 2002, with an emphasis on public education. The motion was seconded by Councilman Wiggins and carried unanimously. PUBLIC HEARINGS - 2001 Comprehensive Plan Amendments - CP,4 01-01 OTHER: Mayor Doyle summarized the memorandum submitted by Community Development 2001 Comprehensive Plan Director Collins in regard to the 2001 Comprehensive Plan Amendments. Director Amendments Collins indicated that public testimony is expected this evening, plus the proposed amendments are to be considered by the Utility Advisory Committee at its meeting of June 11, 2001. Director Collins indicated the most far-reaching issue is the matter of changing City policy to allow the extension of urban services outside the City limits. Mayor Doyle opened the public hearing at 7:34 p.m. Mike Talbnadge, 1776 Little River Road, was present as a representative of the Non- Motorized Advisory Committee. He thanked the Council and staff for the effort put into transcripts and work on the Comprehensive Plan amendments, and he asked for continued support of non-motorized issues. Linda Nutter, 1701 E. 3rd Street, liaison from the Planning Commission to the Non- Motorized Advisory Committee, commended the City's efforts to assist the non- motorized community. Ms. Nutter reported that, last year alone, there were 16,000 instances of the use of bike racks on the Transit buses, and she distributed copies of an itemized list of this utilization. Ms. Nutter noted the increased use of bicycles on the Peninsula. Councilmember Erickson moved to continue the public hearing to June 18, 2001. The motion was seconded by Councilman Hulett and carried unanimously. LATE ITEMS TO BE Allan Harrison, 1834 E. 5t~ St., delineated the various areas in which Highland Courte PLACED ON THIS OR has failed to comply with conditions set forth in the Conditional Use Permit. Violations A FUTURE AGENDA: include the failure to submit an annual report and failure to form an advisory committee. Mr. Harrison also cited a contract signed with the State wherein Highland Courte has Highland Courte agreed to accept a certain number of individuals for trea~nent and support. Mr. Harrison urged the Council to force Highland Courte to abide by the conditions. In the discussion that followed, Councilman Wiggins asked staffif there was certainty that Highland Courte was operating outside the conditions of the Conditional Use Permit. Director Collins stated staff is uncertain if Highland Comte is operating outside the CUP, but the annual report is expected to be received sometime this week. The report was due in March, and Highland Courte was sent a letter reminding them of the requirement to file the report with the City after which Highland Courte asked for an extension. There have also not been any minutes submitted for the Highland Courte Advisory Committee. Attorney Knutson advised the Council that the Superior Court's stay order allows Highland Courte to continue operating while the litigation is pending provided the CUP conditions are being met. Also, he informed the Council that Highland Courte's legal counsel has stated that the facility would meet the conditions of the Conditional Use Permit. The conditions must be met until the litigation has been resolved one way or another. Mayor Doyle felt that, by the next Council meeting on June 18, 2001, there should be certainty that the requirements of the Conditional Use zp~ sOOOL $ 'seJn~!puedx:l 0 0 0 0 0 0 0 0 0 0 sOOOL$ 'soJnl!puodx:l 0 0 0 0 0 0 0 0 0 0 0 LO 0 ~0 0 LO so00 L$ 'soJnl!puodx3 0 0 0 0 ~0 0 ~0 0 ~0 0 pUOLUpg~I qenbessl anAalla~ dnlleXncl puasu~ol lJod uouJa^ ]unolAJ Oa]lPlnlAI UO~l@qS u0HeweJ~3 spuo~p~ se~Jooeu~' poo/~uuX-I 0 0 0 0 0 0 0 0 o o. o o o o o o ~' C'~ 0 00 ~D ~' ~'~ 0 $ 'o§Jeqo ~lqlUOl~l WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 TO: UTILITY ADVISORY COMMITTEE FROM: Larry Dunbar, Power Resources Manager SUBJECT: Cable Television Franchise Renewal Summary: An informal negotiation is being held concurrent with a formal renewal process. It is anticipated that a new franchise will be negotiated under the informal method before June of this year. Although the next step of the formal renewal process is to either accept or render a preliminary decision to deny the October 2001 formal renewal proposal, as required by the Cable Communications Act, Northland has waived this procedural requirement under federal law. Recommendation: That City Council authorizes informal cable franchise renewal negotiation to continue through May of 2002 based on the Cable Operator's waiver dated February 6, 2002. Backqround/Analysis: On December 15, 1987, City Council approved a fifteen-year non-exclusive cable television franchise that will expire on September 30, 2003. On October 3, 2000, Northland Cable Television, Inc. (Cable Operator) requested its franchise be renewed in accordance with the formal procedures of the Cable Communications Policy Act (Act). On October 17, 2000, the City Council approved a professional services agreement with Metropolitan Communications Consultants (MCC) that included a cable television and telecommunications public proceeding and development of a draft cable television franchise for renewal negotiations. On May 22, 2001, the City Council approved professional services agreements with MCC and the law firm of Winstead, Sechrest & Minick (WSM), for technical and legal services during the cable television franchise renewal negotiations. On August 31, 2001, MCC completed the Cable Television and Telecommunications Needs and Interests Report, which was provided to the Cable Operator. On September 18, 2001, Council accepted the report and authorized staff to request a formal proposal from the Cable Operator to reasonably meet future cable-related needs and interests as identified in the report. On October 19, 2001, the Cable Operator submitted a formal renewal proposal to the City. On November 11,2001, the City provided public notice that it received the October 2001 formal renewal proposal. February 12, 2002 Utility Advisory Committee Memo RE: Cable Television Franchise Renewal Page 2 In accordance with the procedural requirements of the Act the City must either accept or render a preliminary decision to deny the October 2001 formal renewal proposal by February 19, 2002. If the City were to render a preliminary decision to deny the formal renewal proposal (not recommended at this time), upon Cable Operator request or City initiative, the City Council would conduct an administrative proceeding. An administrative proceeding would be an opportunity for the Cable Operator to present evidence on whether a formal renewal proposal is reasonable to meet the future cable- related community needs and interests. At the completion of an administrative proceeding, the City would either grant or affirm denial of the formal renewal proposal. The City has strictly complied with the formal procedures of the Act to maintain its rights under the formal process as well as its negotiation ability under the informal method. On November 6, 2001, Northland's legal counsel contacted WSM to discuss the formal renewal procedures. On behalf of the City, WSM invited Northland's legal counsel to research the legal precedent supporting a waiver of the Act's formal renewal procedural requirements. On January 30, 2002, Northland's legal counsel produced a case supporting a waiver of the Act's requirement to either accept or render a preliminary decision to deny the October 2001 formal renewal proposal by February 19, 2002. The case produced is the March 7, 2001 unpublished federal district court opinion of Frontiervision v Town of Naples, Maine (see attachment "A"). An extension of the informal negotiation timeline through the end of May 2002 should provide ample opportunity for both parties to refine various terms and conditions. Northland has expressly waived the relevant formal procedural requirement of the Act (see attachment "B"). The waiver means the City may delay a preliminary decision to accept or deny the October 2001 formal renewal proposal from February 19, 2002 to June 19, 2002. Based on the Frontiervision case and Northland's waiver, staff recommends that City Council authorize informal cable franchise renewal negotiation to continue through May of 2002. The City Attorney and WSM concur with this recommendation based upon the waiver received from Northland. A copy of this memorandum was provided to the Port Angeles Works! Committee and the Cable Operator. N:'~oW KSILIG HT~OWM~USIN ESSpLANRE PORT22A DOC 2001 WL 220192 Attachment "A" Page 1 (Cite as: 2001 VeL 220192 (D.Me.)) (~ matter is to be tried on the papers on a stipulated Only the Westlaw citation is currently available, record, and the court may thus resolve any disputed questions of fact. Brotherhood of Locomotive Eng'rs v. SpringlqeM TerrninalRy. Co., 210 F.3d 18, 31 (lst Cil.2000). United States District Court, D. Maine. FRONTIERVISION OPERATING PARTNERS, FN2. The complaint and the motion for a L.P., Plaintiff preliminary injunction seek identical relief. v. Verified Complaint (Docket No. 1) at 9-10; THE TOWN OF NAPLES, Maine, Defendant Amended Motion for Preliminary Injunction, etc. ("Motion") (Docket No. 9) at No. 01-16-P-DMC. 13. March 7, 2001. I. Factual Background James B. Haddo~, Esq., Petmccelli & Martin, Portland, John D. McKay, Esq., McKay Law Offices, FrontierVision, a limited partnership, is a "cable Charlottesville, VA, for Frontiervision Operating operator" within the meaning of the Cable Act. Parmers LP dba Adelphia Cable Commtmications, Verified Complaint (Record Ext. 1) ¶ 1. The plaintiffs, defendant is a "franchising authority" within the meaning of the Cable Act. Id. ¶ 2. FrontierVision Joseph J. Hahn, Patrick J. Scully~ Esq., Bernstein, provides television cable service to the residents of Shut, Sawyer, & Nelson, Portland, for Naples, Town the defendant town. Id. ¶ 5. The defendant provided of, defendants. FrontierVision's predecessor with a fifteen-year franchise to do so under an agreement dated March 19, 1985. Id. ¶ 6. There are currently approximately MEMORANDUM DECISION [FN1] 900 subscribers to FrontierVision's service in Naples; FrontierVision is the only provider of such services in Naples although its franchise is not FN1. Pursuant to 28 U.S.C. § 636(c), the exclusive. Id. ¶ ¶ 7-8. FrontierVision must have a parties have consented to have United States franchise in order to provide this service. Id. ¶ 9. Magistrate Judge David M. Cohen conduct all proceedings in this case, including trial, FrontierVision's franchise in Naples was due to and to order entry of judgment, expire on March 19, 2000. Id. ¶ 11. By letter dated March 25, 1997 FrontierVision notified the defendant that it invoked formal franchise renewal COHEN, Magistrate J. proceedings under 47 U.S.C. § 546(a)(1). Id. ¶ 14; Exh. A to Affidavit of Paul Bayliss ("Bayliss Afl.") *1 In this action arising under the Cable Act, 47 (Record Exh. 2). The letter states, in relevant part: U.S.C. § 521 et seq., the plaintiff, FrontierVision [W]e are requesting that the Town of Naples Operating Partners, L.P., cl~b/a Adelphia Cable initiate renewal proceedings as prescribed by Communications ("FrontierVision"), seeks Section 626(a) [FN3] of the Cable Act. While we preliminary and permanent injunctive relief and would welcome the opportunity to assist you in the declaratory judgment concerning the renewal of its renewal proceedings outlined in this section, we cable television franchise. Trial of the action on the recommend that the Town temporarily suspend merits has been advanced and consolidated with formal measures so that we may proceed with the hearing on the plaintiffs motion for a preliminary renewal through informal discussions as provided injunction (Docket No. 6) and the parties have agreed for under Section 616(h) [sic; should read 626(h) ]. to submit the case to the court for decision on the papers. Report of Conference of Counsel and Order (Docket No. 8) at 2. Accordingly, this memorandum FN3.47 U.S.C. § 546(a). decision addresses the substance of the plaintiffs claims on the merits and its request for injunctive Letter dated march 25, 1997 from Brian D. Gasser relief. [FN2] The parties have jointly submitted a to Board of Selectmen, Erda. A to Bayliss Afl. On factual record. Record (Docket No. 19). In effect, this November 19, 1998 and January 27, 1999 a Cable Copt. © West 2002 No Claim to Orig. U.S. Govt. Works 2001 WL 220192 Page 2 (Cite as: 2001 WL 220192 (D.Me.)) Advisory Committee authorized by the defendant to of the cable operator's proposal ..., renew the conduct ascertainment proceedings pursuant to 4~7 franchise or, issue a preliminary assessment U.S.C. § 546(a) presented its findings and that the franchise should not be renewed recommendations to the defendant's board of and, at the request of the operator or on its selectmen. Verified Complaint ¶ 15. On March 29, own initiative, commence an administrative 1999 the defendant issued a request for proposal to proceeding ...." 47 U.S.C. § 546(c)(1). FrontierVision setting forth the defendant's minimum requirements for renewal of the franchise. Bayliss Afl. ¶ 10 & Exh. B. A letter dated May 20, 1999 A letter from the defendant's attorney to attorneys for from the defendant's attorney to FronfierVision's Adelphia dated September 19, 2000 includes the vice-president of operations states, in relevant part: following relevant statements: *2 The Town recently forwarded to FrontierVision It now appears that the parties are moving away a Request for Proposal pursuant to Section 626 of from any resolution of this Franchise. the Cable Act. This is to confn'm that the Town would like to receive FrontierVision's response to * * * the RFP as soon as possible, and within the date set At this point, the Town is running out of options. for a response in the RFP. Upon receipt of a The Town previously conducted and completed an response, the Town anticipates that the parties Ascertainment Proceeding, and issued an RFP to would put any further formal renewal proceedings Adelphia, to which Adelphia responded. As on hold and attempt to negotiate an acceptable negotiations appear unsuccessful, the Town's next franchise agreement, step is to vote to accept or reject Adelphia's If you have any questions about this approach, response to the RFP, which vote will be the Town's please feel free to contact me. preliminary determination pursuant to Section Exh. C to Bayliss Afl. FrontierVision did not 626(c). respond with any objection to the suspension of Before the Town proceeds with its vote, I would formal proceedings proposed in this letter. Bayliss like to attempt one final time to get this matter Afl. ¶ 12. FrontierVision delivered a response to the resolved. request for proposal on June 1, 1999. Verified Exh. E to Bayliss Afl. at 1-2. A responsive letter Complaint¶ 17. from Martha Hudek, a staff attorney for Adelphia, states, in relevant part: The parties thereafter engaged in extended informal You stated in your letter to me dated September 19, negotiations in an effort to reach agreement on a new 2000 that the "Town's next step is to vote to accept franchise agreement. Bayliss Afl. ¶ 14. At least five or reject Adelphia's response to the RFP, which negotiating meetings took place between August 3, vote will be the Town's preliminary determination 1999 and November 16, 2000./d. At no time during pursuant to Section 626(c)." Subsequently, in an e- this period did FronfierVision express any objection mail ... dated October 31, 2000 you stated that to the procedure being followed by the defendant, barring a final attempt to finalize negotiations the request that the defendant take formal action on its Town's "only choice is to deny renewal and adopt a proposal, or object to the fact that the defendant did thorough cable ordinance to deal with many of the not take formal action on its proposal within four disputed issues." months of its submission. [FN4] Id. On October 1, 1999 the interests of the partners in FrontierVision * * * were acquired by Adelphia Communications *3 On June 1, 1999 FrontierVision ... filed a fornml Corporation ("Adelphia"). Affidavit of William J. response to the March 1999 RFP pursuant to Mahon, Jr. ("Mahon Afl.") (Record Exh. 3) ¶ 2. Section 626(b) of the Cable Act. The Town never FrontierVision continues to own and operate the accepted or preliminarily rejected FrontierVision's cable system serving Naples. Id. proposal in the subsequent 4-month timeframe as prescribed by Section 626(c)(1). In view of the lengthy passage of time and the Town's failure to FN4. The Cable Act provides, in relevant follow the statutory process, we do not believe part: "Upon submittal by a cable operator of FrontierVisions' [sic] formal response can lawfully aproposal to the franchising authority for the be resurrected on a moment's notice and then renewal of a franchise pursuant to denied by the Town. subsection (b) of this section, the franchising authority shall ..., during the 4-month period * * * which begins on the date of the submission Adelphia will submit a formal proposal to the Copr. © West 2002 No Claim to Orig. U.S. Govt. Works 2001 WL 220192 Page 3 (Cite as: 2001 WL 220192 (D.Me.)) Town pursuant to Section 626(b) by January 31, enacting an ordinance to mandate the inclusion of 200t. terms in renewal franchises." ld. at 10. Letter dated November 14, 2000 from Martha Hudak to Patrick J. Scnlly, Esq., Ext. F to Bayliss *4 The parties have agreed to maintain the status Afl., at 1. In early December 2000 FrontierVision quo until the motion for preliminary injunction is sent the defendant a final draft franchise, which was resolved by the court. Agreed Order on Motion for unacceptable to the defendant. Bayliss Afl. ¶ 19. In a Temporary Injunction ("Agreed Order") (Docket No. letter dated January 16, 2001 to Ms. Hudak, the 5) at 1; see also Report of Conference of Counsel and defendant's attorney stated: Order (Docket No. 8) at 2. Specifically, the defendant This is to notify Adelphia that the Town of Naples' agreed to take no action on the 1999 proposal and the Board of Selectmen will be meeting on Monday proposed cable franchising ordinance and the evening, January 22, 2001 at 7:00 p.m. At that plaintiff agreed not to submit another franchise meeting, the Board of Selectmen will consider the proposal. Agreed Order at 1-2. adoption of a Cable Television Ordinance for the Town of Naples in accordance with 30-A II. Discussion M.R.S.A. § 3008. The Board of Selectmen at that A. Franchise Renewal meeting will also review the formal RFP submitted by FrontierVision to the Town and will make a FrontierVision bases its claims primarily on the detennination whether to renew the Franchise or defendant's failure to comply with the four-month issue a preliminary assessment that the Franchise deadline, running from the date on which a renewal should not be renewed, in accordance with Section proposal is submitted by a cable operator, imposed by 626(c)(1) of the Cable Act. Please feel free to section 546(c)(1) for issuance ora franchise renewal contact me if you have any questions, or a preliminary assessment that the franchise should Exh. H to Bayliss Afl. In a letter, apparently not be renewed. [FN5] Motion at 4-9. The defendant provided to The Bridgton News and published therein responds, Defendant's Amended Objection to on an unknown date, the Naples Cable TV Advisory Plaintiffs Motion for a Preliminary Injunction, etc. Committee stated, in relevant part: ("Defendant's Objection") (Docket No. 18) at 11-14, In view of the difficulties the committee has that its "alleged error" in this regard was harmless encountered in its negotiations, it has asked the within the meaning of section 546(e)(2) which board of selectmen to adopt a cable ordinance for provides that "[t]he court shall grant appropriate the Town of Naples. Such an ordinance would have relief if the court finds that ... any action of the the effect of existing law and would require any franchising authority, other than harmless error, is not cable TV service franchise to meet its provisions, in compliance with the procedmal requirements of Verified Complaint ¶ 25 & Ext. A thereto at [2]. this section." The defendant also argues that The defendant "issued a press release confirming its FrontierVisinn has effectively waived any right to intention to deny ... renewal at the January 22 insist upon enforcement of the deadline, or is meeting based on the 1999 proposal, and its plan to estopped to make such a claim, by its agreement to enact the ... ordinance." Verified Complaint ¶ 25. suspend the formal requirements of the Cable Act; that the only available remedy for a franchising FrontierVision filed its verified complaint with this authority's failure to comply with the deadline is a court on January 22, 2001. Docket. The verified court order requiring it to act on the proposal; and complaint alleges violation of the Cable Act, Verified that the courts may not take any action until a cable Complaint ¶ ¶ 18, 21, 24, 27-28, and seeks operator's proposal has been rejected by a franchising declaratory and injunctive relief, id. ¶ ¶ 31-34. authority. Id. at 14-23. The last of these contentions Specifically, the verified complaint seeks injunctive is plainly wrong. If such were the case, a franchising relief preventing the defendant from denying renewal authority could refuse indefinitely to act on a cable of the franchise based on the 1999 proposal; operator's proposal for a renewed franchise, a requiring the defendant "to accept the 1999 proposal possibility clearly not within the letter or the spirit of as Adelphia's renewal franchise, or, in the alternative, the provisions of the Cable Act. to permit Adelphia to file a new formal proposal and to act on such new proposal in accordance with all of the requirements of § 546(a) through (g);" FN5. The 1999 FrontierVision proposal was establishing a time schedule for the completion of clearly submitted pursuant to subsection (b) statutory requirements with respect to the new formal of section 546, as required by section proposal; and "prohibiting Naples from attempting to 546(c)(1). circumvent the legal requirements of § 546 by Copt. © West 2002 No Claim to Orig. U.S. Govt. Works 2001 WL 220192 Page 4 (Cite as: 2001 WL 220192 (D.Me.)) reasonable explanation of his conduct is possible. The defendant's waiver arguxnent, however, has Irons v. F. Bd., 811 F.2d 681~ 686 (lst Cir. 1987) merit. FrontierVision devotes considerable time and (internal quotation marks and citations omitted). effort to an argument that the statutory deadline at Here, the conduct of FrontierVisinn can reasonably issue is "mandatory," Motion at 4-8; Reply be explained only as the relinquishment of its right to Memorandum (Docket No. 14) at 5, and the a decision on its proposal within four months after it defendant disputes the point, Defendant's Objection was delivered on June 1, 1999. FrontierVisiun at 13, but the court need not decide this issue. The engaged in four informal negotiating sessions with Supreme Court has made clear that mandatory the defendant before mentioning the deadline for the statutory deadlines are subject to waiver. Zipes v. first time in a letter dated November 14, 2000, some Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) 18 1/2 months after the proposal was submitted. The (statutory deadline for filing charge with EEOC "like first suggestion that formal procedures be suspended a statute of limitations, is subject to waiver, estoppel, carae from Fronti~rVision, and FrontierVision did not and equitable tolling"); see also Prou v. United object to the defendant's proposal that this suspension States, 199 F.3d 37, 46 (lst Cir. 1999) ("That la occur after FrontierVision submitted its response to federal statute] is phrased in obligatory terms cannot the request for proposal. The factual circumstances in be determinative of a waiver inquiry. If it were, a this case are not at all ambiguous on this point. See whole range of constitutional and statutory provisions generally Union CA IV, [nc. v. City o£ Sturgis, 107 employing compulsory language would give rise to F.3d 434, 438 (6th Cir. 1977) (noting that cable nonwaivable claims. The case law belies so sweeping operator and franchising authority agreed to waive a generalization."), certain procedural requirements of Cable Act). '5 "A party waives a right when it makes an The Supreme Court observed almost seventy years intentional relinquishment or abandonment of it." ago that United States v. Mitchell, 85 F.3fl 800, 807 (lst It]he applicable principle is fundamental and Cir. 1996) (internal punctuation and citation omined), unquestioned. He who prevents a thing from being FLE~5.I done may not avail himself of the nonperformance which he has himself occasioned, for the law says to him, in effect: "This is your own act, and FN6~ FrontierVision relies on Maine case therefore you are not damnlfied2' Sometimes the law to support its argument that the resulting disability has been characterized as an doctrines of waiver and estoppel are estoppel, sometimes as a waiver. The label counts inapplicable here. Reply Memorandum at 5- for little. Enough for present purposes that the 7. "[Als a general proposition, the waiver of disability has its roots in a principle more nearly a federal right is a question of federal law." ultimate than either waiver or estoppel, the Nelson v. C~prus Bagdad Copper Corp., principle that no one shall be permitted to found 119 F.3d 756, 762 n. 12 (9th Cir. 1997); see any claim upon his own inequity or take advantage also Herreraans v. Carrera Designs, Inc.. of his own wrong. A suit may not be built on an 157 F.3d 1118, 1122-23 (7th Cir. 1998). In omission induced by hira who sues. any event, my conclusion would be the same R.H. Stearns Co. v. United States, 291 U.S. 54, 61- were I to apply Maine law. See Department 62 (1934) (internal quotation marks and citations _of Human Servs. v. Brennick, 597 A.2d 933, omitted). While FrontierVision may not have, strictly 935 (Me. 1991) (waiver "may be shown by a speaking, prevented the defendant from complying course of conduct signifying a purpose not with the four-month deadline, its conduct most to stand on a right, and leading, by a certainly induced the defendant to fail to comply with reasonable inference, to the conclusion that it. That is sufficient to bar the relief sought by the right in question will not be insisted FrontierVision under the statute. upon"). Even if that were not the case, I would t-md that the To be sure, every waiver need not be express; at defendant's failure to comply with the four-month times, one can fairly be deduced from conduct or deadline constitutes harmless error. While there is as from a collocation of the circumstances, yet no reported case law construing this relatively Nevertheless, if proof of a waiver rests on one's new provision of the Cable Act, the only harm acts, his act[s] should be so manifestly consistent suggested by FrontierVision to have resulted from the with and indicative of an intent to relinquish defendant's lack of compliance is the following: voluntarily a particular right that no other *6 Adelphia would, if these violations continue Copr. © West 2002 No Claim to Orig. U.S. Govt. Works 2001 WL 220192 Page 5 (Cite as: 2001 WL 220192 (D.Me.)) unabated by this Court, be forced to defend that such ordinances, if legally enacted, have the someone else's stale proposal instead of having the force of laws passed by the legislature of the state, opportunity to present and defend (if any defense is and are to be respected by all. But the courts will necessary) a proposal for improved cable television pass the line that separates judicial from legislative service for the citizens of Naples based on what it authority if by any order, or in any mode, they can do for the community's cable-related needs and assume to control the discretion with which interests, in light of the facts that exist now, under municipal assemblies are invested when its management, and not under limitations that deliberating upon the adoption or rejection of affected a former company that had put itself on ordinances proposed for their adoption. The the market at the time the proposal was submitted, passage of ordinances by such bodies are Reply Memorandum at 2 (emphasis in original), legislative acts, which a court of equity will not This "harm," if it is such at all, arises as much out of enjoin. Adelphia's decision to acquire the interests of the *7 New Orleans Water Works Co. v. City of New partners in FrontierVision after its proposal had been Orleans, 164 U.S. 471, 481 (1896). "The New submitted as it does out of the delay itself. Orleans Court made clear that the role of the court is FrontierVision has submitted no evidence that to intervene, if at all, only after a legislative Adelphia undertook this acquisition only on the enactment has been passed." Associated Gen. condition that the proposal be w/th&awn, that it Contractors of Am. v. CitF of Columbus, 172 F.3d disavowed the proposal after the lransfer of 411,415 (6thCir. 1999). ownership, or that it sought to withdraw the 1999 proposal at any time prior to November 14, 2000, The only case cited by FrontierVision in support of when it had become clear that informal negotiations its request, Birmingham Cable Communications, Inc. between the parties had broken down. Indeed, the v. Ci~ of Birmingham, 1989 WL 253850 (N.D.Ala. only "harm" set forth by the plaintiff in this passage May 5, 1989), is distinguishable because the is alleged harm to the users of its service, not to itself, ordinance at issue in that case had been enacted and It is the role of the defendant to represent the interests was properly before the court for its consideration. of those individuals. The harm to which the statute Id. at *1 & th.4. Unless and until the defendant enacts refers must be harm to the party seeking to invoke its an ordinance, presumably pursuant to the authority protection. If FrontierVision means to invoke "harm" granted by 30-A M.R.S.A. § 3008(2), that harms in the sense of harm to the statutory procedural FrontierVision, tiffs court may not consider an scheme itself, no such harm is demonstrated in its application for injunctive relief to FrontierVision submissions to this court, concerning such an ordinance. B. The OrcYmance III. Conclusion FrontierVision also asks this court to enjoin the For the foregoing reasons, and because the defendant defendant "from attempting to circumvent the legal has indicated its intention to act promptly on the reqtfirements of § 546 by enacting an ordinance to pending franchise renewal proposal submitted in mandate the inclusion of terms in renewal 1999 by FrontierVision, making it unnecessary for franchises." Verified Complaint at 10. To the extent the court to order it to do so, it is hereby ORDERED that this request survives my finding that that judgment shall be entered for the defendant on FrontierVision has waived any entitlement to relief all claims. based on the defendant's failure to comply with the four-month deadline set forth in section 546(c)(1), END OFDOCUMENT FrontierVision is not entitled to such relief. First, no proposed ordinance has been submitted to the court, so that it is irrrpossible for the court to conclude that the ordinance would circumvent the legal requirements of section 546 in any way. Second, and more important, as a matter of law, courts may not enjoin the enactment of local ordinances in advance. [I]t cannot be doubted that the legislature may delegate to municipal assemblies the power of enacting ordinances that relate to local matters, and Copt. © West 2002 No Claim to Orig. U.S. Govt. Works Attachment "B" B N ORTHL4ND G~BLE TELEVISION, INC. 1~01 Th~rCt Aven~e. ~le. ~ng~n gbl01 FEDE~ ~P~SS AND Febm~y 6, 2002 Michael Qulnn, Ciiy Manager City ot' Port xni~eles 321 East Fifth Street Pos~ Office Box 1150 Port Angeles, Washington 98362-0217 1~: Norfl~l.~'td Cable Television~ lr~c. ("Northla~nd") - Pon alleles, Washin~,lon De'~r Mr. As promised in our loiter of February 4, 2002, Ibis letter serves as Northland's olIicial agreement to delay any preliminary rulintl on the renewal documents submi~ed by Northland on October 19, 2001, a.ad November 12, 2001. This lerner constitute~ Northland's wlillen agreement Ih. at it ~vill accept lhis delay, that ii will abide by the holding o£ the Frontierv{sio~ case, 2001 ~. 220192 (a cop), of which was provided you by our loiter of'February 4), which allows for a mutually agreed-upon extension of the four-monlh lime review period set forth in Section 626(a) of the Cable Communicalions Policy Act of 1984, 47 U.S.C, 546, as amended Ghe "Act"), and that will not later contend that this delay m any way p~ejudiced the Cit.v's renewal ri~h~s, Additionally, to Ibc extent Northland b. as rights to enforce the l"our-nlonth time IS'nme we waive ~ny such ~i~hi by this letler, but we reserve any olhcr fights we have under the including the City's treatment of Norlhland's earlier document submissions. As you knorr, i~.~brmal £raz~chise r~newal negotiations in accordance with S~clion 626(h) of lhe Act am scheduled to have been completed on or before May 31, 2002, We appreciate the City's wilIingnuss to cor~sider a delay to the preliminary tilling on this manor until Ju~e 19, 2002. This delay will surely facilitate ongoing informal discussions, as well as prevent further subscriber loss and adve~-~ publicity (for ~he City and Northland). ]f you lzave any questions regarding the above, or would like to discus this fv. rther, ple~e do not hesitate t~ c~ll me at (206) 621-1351. President C~aig Knutson, Ci~ Aa~ey L~ Dunbar, Po~er Resources ~g~ Ciare~e A. West, E~. Riced 1. Clink. Ex~utive Vice Presidem, No.land Richard 3. Dyste. Senior Vice P~esi~m, La~a N. Willies. Senior Co~sel. Pete Ofigor~eff. Regional M~ger, No~hlan~ Do/03b,doc 120~ Tn,rd A~enue, Suite 3600 · Sea'~le, Washington 98101 * (206) Power Supply Update 2-12-02 Three Cost Recovery Adjustment Clauses (CRAC) Load based CRAC- LB CRAC Financial CRAC- FB CRAC Safety Net CRAC- SN CRAC All CRAC's, if implemented, are incremental Load based CRAC can be adjusted every six months Recovers the cost of purchasing augmentation power Set based on forecast of loads and market prices Corrected after each six month period based on actual costs LB CRAC is currently 46.225% Forecast for the next six months is about 40-42% (starting April 1) CRAC tree up is expected to be just under 1% (refund) Financial based CRAC allows a temporary one-year adjustment to rates Triggers ifBPA's accumulated net revenues fall below a preset threshold Maximum FB CRAC is 11% FB CRAC is announced Sept 1, for implementation on October 1 Safety net CRAC can trigger anytime that BPA forecasts a 50% probability that it will miss a payment to treasury or other creditor or if they have missed a payment to the treasury or a creditor. SN CRAC takes place in an expedited 70) process (BPA rate setting process) and takes effect 61 days after the FERC filing WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 To: UTILITY ADVISORY COMMITTEE FROM: Scott McLain, Deputy Director of Power Systems RE: Morse Creek Flow Agreement with Agencies Summary: The Endangered Species Act (ESA) requires the City to initiate a section 7 consultation with the Federal Energy Regulatory Commission (FERC) to reactivate the Morse Creek Hydroelectric Project. The US Fish and Wildlife Service (USFWS) is the agency that provides consultation to FERC. These discussions were to determine if there were any project related impacts to listed fish species under the ESA. The City and the agencies have met over the last few months and have tentative agreement on minimum flow levels for each month in Morse Creek that would produce the minimum impact to listed species and have a minimum effect on the economics of the project. Recommendation: UAC recommend City Council approve the revised minimum flow levels for Morse Creek and direct staff to initiate action to revise the FERC license to the new minimum flow levels. Background / Analysis: The City has been engaged in the process of reactivating the Morse Creek Hydroelectric Project since mid 2000. The City has submitted and FERC has approved a plan to reactivate the project. FERC has also encouraged the City to work with the U. S. Fish and Wildlife Service (USFWS) to determine if there are any adverse effects on listed species under the Endangered Species Act (ESA) resulting from project operation. The USFWS has agreed to work informally with the City to determine impacts and address measures to minimize the impacts to listed species. The USFWS is the lead agency consulting with FERC on ESA issues, but serveral agencies were involved in the determination of adverse effects and ways to mitigate the effects. These agencies included USFWS, National Marine Fisheries Service (NMFS) which was represented by USFWS, Washington State Fish and Wildlife Service (FWS), Department of Ecology (DOE), and the Lower Elwha Tribe. At the conclusion of discussions, all agencies agreed that minimum flow levels in all months of the year would adequately protect endangered species. The City and the agencies developed minimum flow levels both to protect the listed species in Morse Creek and to place the minimum financial impacts on the project. At the agreed minimum flow levels, and on an average water year, the revenues for the project would remain about the same. Over time, revenues would likely be somewhat lower, as there is not the same opportunity to generate additional revenues in high flow times to offset the times when flows are low, and generation is restricted. NSPWKSX~LIGHT~OWM~MORSECRK\UAC021202.wpd WASHINGTON, U.S.A. UTILITY ADVISORY COMMITTEE MEMO DATE: February 12, 2002 TO: UTILITY ADVISORY COMMITTEE FROM: Scott McLain, Deputy Director of Power Systems SUBJECT: Western Public Agencies Group (WPAG) agreements for 2002 Summary: The City has been a member of the Western Public Agencies Group for several years. It is comprised of 21 Washington public utilities with similar interests. Each year the group contracts with two consultants and develops a scope of work for issues expected during the year. This year's total contract amount is estimated to be $220,000, of which the City's share will be less than $12,000. Recommendation: Recommend Council authorize the Director of Public Works and Utilities to sign agreements with Marsh Mundorf Pratt and Sullivan, and EES Consulting for WPAG services during the year 2002 for an amount not to exceed $12,000. Background / Analysis: The City of Port Angeles, along with 20 other public utilities in Washington, are members of the Western Public Agencies Group. This group was formed in 1980 to share costs in contracting with experts in the regional power field. The law firm of Marsh Mundor£Pratt and Sullivan, and EES Consulting are the two primary consultants to WPAG. Each year, the members of WPAG establish a budget based on expected regional issues for the year. Allocations of the total budget are divided among the participating utilities based on number of customers, KWH sales, and utility investment. The City's share of a total WPAG budget of $220,000 is $11,414 or 5.2%. This expense was included in the City's 2002 budget in the amount of $10,000. The budget in the prior year was about $219,000 with the City's share about $10,000. The City's share has increased for 2002 because one utility withdrew this year, and the City's annual KWH sales increased due to replacement of the Elwha generation. As this budget is an estimated amount, and not all utilities participate in the entire scope of work, it is requested that the City enter into the agreements with a cap of $12,000. Attached is the scope of work for the 2002 calendar year with Marsh Mundorf Pratt and Sullivan, and EES Consulting. The agreements are being reviewed by the City Attorney. Attachments: WPAG scope of services and budget N:~PWKS~LIGHT~POWM~M EMOS\wpag2002.wpd EXHIBIT A Western Public Agencies Group 2002 Scope of Services and Budget The Western Public Agencies Group (WPAG) comprises 21 publicly owned utilities in the state of Washington: Benton REA, Clallam County P.U.D. No. 1, Clark Public Utilities, the City of Cheney, the City of Ellensburg, Kittitas County P.U.D. No. 1, Lewis County P.U.D. No. 1, Mason County P.U.D. No. 1, Mason County P.U.D. No. 3, Pacific County P.U.D. No. 2, Peninsula Light Company, the City of Port Angeles, Snohomish County P.U.D. No. 1, and members of the Pierce County Cooperative Power Association, which includes Alder Mutual Light Company, the Town of Eatonvill¢, Elmhurst Mutual Power and Light Company, Lakeview Light and Power Company, the City of Milton, Ohop Mutual Light Company, Parkland Light and Water Company, and the Town of Steilacoom. Together the WPAG member utilities serve more than one million customers and purchase more than 12 billion kilowatt-hours from the Bonneville Power Administration ("Bonneville") each year. WPAG member utilities also own or receive output fi.om more than 500 megawatts of non- Bonneville generation and purchase more than 400 megawatts of power fxom sources other than Bonneville. WPAG members are winter-peaking utilities with lower annual load factors. WPAG members' similar characteristics have caused them to join together to represent their interests before Bonneville, and in other forums in the Pacific Northwest and the United States since 1980. WPAG has intervened as a group in every major Bonneville rate proceeding since enactment of the Pacific Northwest Electric Power Planning and Conservation Act of 1980. W'PAG's interests have also been represented in Congress, before the Northwest Power Planning Council, and in other regional forums. The scope of services presented here includes areas that various other organizations, of which WPAG members might also be members, cannot advocate for WPAG members due to conflicts of interest within those organizations. WPAG thus fills a need that is unmet by membership in the Public Power Council, the Northwest Public Power Association, the Pacific Northwest Utilities Conference Committee and other similar groups. A-I EXHIBIT A Scope of Services The 2002 scope of services for WPAG is pwposed as follows: BPA Rates BPA will have periodic CRAC adjustments which will be followed closely. General WPAG Activities and Meetings During 2002, EES Consulting and MMPS&M will monitor and comment on regional and federal activities of general interest to include BPA-related legislation, ISO/RTO progress, Regionalization of BPA, and any other new topic of mutual interest and relevance. Monthly meetings will be held to brief WPAG members on these activities. · RTO The westsider RTO proposal continues on. We will actively participate in this process on behalfofWPAG. · DSI Survivability BPA is considering additional subsidies to keep the DS~[s in operation, We will monitor the DSI survival study process. · .Regional Benefits There is another push to reallocate the federal power among the IOU, public power and DSI interests. W-PAG participation will be important to presenting a strong public power position. Negotiations with the IOUs are currently underway and will last through 2002. · Olympia Legislative Session The 2002 legislative session is not expected to deal with WPAG-related activities in any major fashion such as industry restructuring or deregulation, but may touch on other utility issues such as taxation, financial/rate information sharing, telecommunication issues, etc. EES Consulting and MMPS&M will monitor these activities on behalf of WPAG's specific interests. · Litigation A challenge to the Subscription ROD is pending. If pursued, additional funding above and beyond this proposed budget may be needed. A-2 EXHIBIT A · Regional Review 2 If a "Regional Review 2" is initiated, additional funding above and beyond this proposed budget may be needed. Budget The budget for the scope of services described above is calculated at the following billing rates for EES Consulting and M/VIPS&M: EES Consulting, President .................................................................................. $130 per hour Vice President/Managing Director ............................................ 120 per hour Project Manager ........................................................................ 110 per hour Analyst or Engineer ................................................................... 100 per hour Clerical ................................................................................ 60 - 80 per hour MMPS&M Principal .................................................................................. $135 per hour Associate ................................................................................... 110 per hour These billing rates will remain in effect through December 31, 2002. On the basis.of the above billing rates, the 2002 labor budgets of EES Consulting and MMPS&M combined are estimated to be $200,000. This labor budget will be split equally between EES Consulting and MMPS&M. In addition to labor costs, out-of-pocket expenses will be billed to WPAG members at their cost to EES Consulting and MMPS&M. It is estimated that $20,000 in total out-of-pocket expenses will be incurred for all work elements in total. Out-of-pocket costs will be billed by whichever organization actually incurs the expense. The total estimated WPAG budget for 2002 is estimated at $220,000. As always, the allocation of the budget among WPAG members is open to negotiation by the participants. We have attached an inter-utility allocation predicated on the most recent available utility data, assuming a 15 percent maximum allocation to any one utility. After a final count of WPAG participants, a final budget by utility will be prepared. An example of the budget's allocation is attached af the end of this narrative. A-3 EXHIBIT A Project Staffing The staffing for this project will be similar to that for past WPAG activities. Gary Saleba and Terry Mundorf will be the principal representatives for EES Consulting and MMPS&M, respectively. Additional MMPS&M and EES Consulting staffwill assist as needed. A-4 WASHINGTON, U.S.A. UTILITY aDVISORY COMMITTEE MEMO DATE: February 12, 2002 To: UTILITY ADVISORY COMMITTEE FROM: Scott McLain, Deputy Director o£Power Systems RE: Fuel Cell Demonstration Project Summary: The Clallam County Public Utility District has committed to purchasing and operating a 3 KW fuel cell. They have asked if the City would like to participate in the project. Operating costs for the project are in excess of I0 cents per KWH along with capital costs of $27,000 and installation. Recommendation: Staff is not recommending that the City pursue participation in this project. This technology is not feasible for the near future, but staff would like input from the UAC on participation in projects like this in the future. Background / Analysis: In 2001, Clallam County PUD committed to the purchase of a demonstration fuel cell. These fuel cells are being partially funded by the Bonneville Power Administratiom and are being sold to the utilities for $27,000. The unit is now ready for installation, and the PUD asked if the City wanted to participate in the project and share the costs. Total costs for the project would include the cost of the unit, installation, and operating costs for fuel. The Hydrogen required to power the fuel cell is derived from commercially available methanol. Conversion of the methanol to hydrogen which produces electricity in the fuel cell equates to an operating cost in excess of 10 cents per KWH. As this type of generation is not economically feasible for the near future, staff is not recommending participation in this project. Staffwould like to discuss with the UAC whether the City should pursue projects of this kind in the future. N:~PWKS\LIGHTXPOWMXlvl EMOS\uac021202 fuelcelDnpd