City Council

CITY OF MOUNT VERNON CITY COUNCIL MEETING AGENDA May 26, 2021 7:00 p.m. Police Court Campus (Public health measures will be required of all persons in attendance. Masks and social distancing are required.) To virtually attend the meeting, the public may: 1. Call the conference line: 1-888-924-9240; Access Code: 3366211 (please ‘mute’ your phone, if possible, to minimize distractions) 2. Watch the meeting live on TV10: Comcast/Xfinity Channel 10 3. Watch the meeting live, online: https://www.youtube.com/channel/UCUob_hcQUmd4S93YkletdrA I. OPENING CEREMONIES A. Call to Order B. Pledge of Allegiance C. Roll Call of Councilmembers II. CONSENT AGENDA A. Approval of May 12, 2021 Regular Council Meeting Minutes B. Approval of May 20, 2021 payroll checks numbered 110747 – 110764, direct deposit checks numbers 82267 – 82495, and wire transfers numbered 975 – 979 in the amount of $1,187,100.50 C. Approval of May 26, 2021 Claims numbered 13882 – 14007 and 14009 – 14010 in the amount of $2,320,264.16 III. REPORTS A. Committees 1. Finance & Parks and Enrichment Services B. Community Comments (This is an opportunity for Mount Vernon residents to address their City Council. Please limit comments to 3 minutes or less. Under normal circumstances, the Mayor and Council will not respond immediately to Community Comments. If you would like someone to follow-up with you regarding the topic of your comments, please leave your name and contact information on the form at the entrance of the Council Chambers. Public comments will also be accepted via email to council@mountvernonwa.gov. The comments will be read aloud into the record during the public comment portion of the agenda. All comments must be received by 4:00 p.m. on May 26, 2021.) C. Councilmember Comments D. Mayor’s Report E. Committee Agenda Requests IV. UNFINISHED BUSINESS None Mount Vernon City Council Agenda May 26, 2021, Page 2 of 2 V. NEW BUSINESS A. Professional Services Agreement: Mount Vernon Library Commons Project (Staff is requesting approval of a Professional Services Agreement with HKP Architects for architectural, engineering and design services for the Library Commons Project.) (required action – motion) (staff contact – William Bullock) B. Closed Records Public Hearing – Concurrency Approval, Grocery Outlet ENGR20-0295 (Staff is requesting approval of a Resolution approving the Traffic Concurrency permit for Grocery Outlet to be located at 525 E. College Way. Parties of record wishing to comment on this item may attend the meeting to make comments or contact the Development Services Department at permittech@mountvernonwa.gov or call 360-336-6214 by 5:00 p.m. Wednesday, May 26, 2021) (required action – resolution) (staff contact – Rebecca Lowell) C. Extension Agreement with The Clean Team (Staff is requesting approval of an extension of agreement 3919 with The Clean Team for janitorial services in all open public restrooms through September 2021 ) (required action – motion) (staff contact – Jennifer Berner) D. Fiber License and Operating Agreement with NW Programming, Inc. (Staff is requesting approval of a Fiber License and Operating Agreement with NW Programming, Inc. to become an ISP provider.) (required action – motion) (staff contact – Kim Kleppe) E. Revisions to Chapter 8.12 of the Mount Vernon Municipal Code, Solid Waste Collection (Staff is requesting adoption of an ordinance for revisions to Chapter 8.12 of the Mount Vernon Municipal Code regulating Solid Waste Collection.) (required action – ordinance) (staff contact – Esco Bell) F. Franchise Agreement with SkagitNet (Staff is requesting adoption of an ordinance granting a franchise agreement with SkagitNet) (required action – ordinance) (staff contact – Kevin Rogerson) G. Proposed Ordinance for Revisions of Fireworks Code (Staff is requesting adoption of an ordinance revising Chapter 8.24 of the Mount Vernon Municipal Code, Fireworks Regulations.) (required action – ordinance) (staff contact – Kevin Rogerson) H. Revisions to Chapter 9.12 of the Mount Vernon Municipal Code, Criminal Possession Laws (Staff is requesting adoption of an ordinance to include Simple Drug Possession Crimes in the Mount Vernon Municipal Code.) (required action – ordinance) (staff contact – Kevin Rogerson) COMMITTEE MEETINGS Finance & Parks and Enrichment Services 6:00 p.m. Next Ordinance 3830 Next Resolution 994  AGENDA ITEM: A DATE: June 2, 2021 TO: Mayor Boudreau and City Council FROM: William Bullock, P.E. - City Engineer SUBJECT: PROFESSIONAL SERVICES AGREEMENT: MOUNT VERNON LIBRARY COMMONS PROJECT RECOMMENDED ACTION: Staff recommends entering into a Professional Services Agreement with HKP Architects (HKP) for architectural, engineering and design services for the Library Commons Project. INTRODUCTION/BACKGROUND: The Mount Vernon Library Commons project consists of a new public library and community center below three floors of structured parking (approximately 300 spaces). The library and community center space will be approximately 30,000SF and structured parking area will be approximately 125,000 SF. The Project shall incorporate sustainable strategies to reduce overall carbon footprint, promote environmental and healthy materials, and encourage sustainable transportation options. After City Council authorization, the City published a Request for Qualifications on March 10, 2021. Nine firms responded to the request and three firms were interviewed on April 20, 2021. The reviewing panel consisted of: Mr. Hal Verrell (Mount Vernon Library Foundation), Ms. Lyne Olson (Mount Vernon Library Trustee), Councilmember Mary Hudson (Mayor Pro Tem), Esco Bell, Bill Bullock, Chris Phillips, Isaac Huffman and Mayor Boudreau. HKP Architects and their team emerged as the preferred candidate from all panelists. Mayor Boudreau has invited HKP Architects Partner-in-Charge Julie Blazek and her team to present their qualifications to the Mount Vernon City Council. FINDINGS/CONCLUSIONS: HKP is an architectural design firm and their team was the preferred candidate in the selection process among nine other firms responding to the advertised Request for Qualifications. The scope and fee for design services is not to exceed $2,497,961.16. RECOMMENDATION: Motion to approve authorization for the Mayor to execute a contract with HKP Architects for architectural, engineering and design services for the Library Commons Project in the amount of $2,497,961.16. ATTACHED: Draft Contract Scope and Fee (Exhibits A & B)  MOUNT VERNON LIBRARY COMMONS PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into on this 2nd day of June, 2021, by and between the CITY OF MOUNT VERNON, a municipal corporation under the laws of the State of Washington, hereinafter referred to as the "City," and HKP Architects, PLLC, a Washington State Professional Limited Liability Company, whose address is 204 Montgomery Street, Mount Vernon, WA 98273, hereinafter referred to as the "Contractor." WHEREAS, the City desires to engage the Contractor to provide professional services for the design of the Mount Vernon Library Commons, design and completion of bid ready documents for a new library, community center, and structured parking for the City of Mount Vernon; and WHEREAS, Contractor represented, and by entering into this Agreement now represents, that it is fully qualified to perform the work to be performed hereunder in a competent and professional manner; NOW, THEREFORE, the parties herein do mutually agree as follows: 1. Engagement of Contractor. The City hereby agrees to engage the Contractor, and the Contractor hereby agrees, to perform the work in a competent and professional manner and provide the services described in the attached "Exhibit A - Scope of Work". The Scope of Work so identified is hereafter referred to as ‘‘Work’’. Without a written directive of an authorized representative of the City, the Contractor shall not perform any services that are in addition to, or beyond the scope of, the Work. If the Contractor’s proposal is attached as an exhibit, and if such proposal contains or incorporates any conditions or terms in addition to or different from the terms of this Agreement, then the Contractor expressly agrees that such conditions or terms are neither incorporated nor included into this Agreement between the City and Contractor. The Contractor shall perform its Work in full compliance with applicable law and consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances on similar types of projects. The City understands this Standard of Care does not guarantee perfection in the performance of Contractor’s Work. 2. Intellectual Property Rights. ‘‘Final Design Work’’ accepted and delivered to the City pursuant to this agreement are property of the City for all purposes, whether the project for which they are made is executed or not, and may be used by the City for any purpose. ‘‘Final Design Work’’ is considered the work(s) made for hire and/or full assignment and transfer of intellectual rights by Contractor of final reports, final drawings, final plans, or final specifications delivered to and accepted by the City for its performance of this Agreement. Unless otherwise expressly agreed in writing, all intellectual property rights in Final Design Work created pursuant to this Agreement, or for the City of Mount Vernon, shall belong to the City of Mount Vernon following payment of all monies due and owing under this Agreement. Contractor retains any intellectual property rights in documents and intangible property created by Contractor prior to engagement, not created by Contractor for its performance of this Agreement, or documents not considered Final Design Work 2 including Consultants preliminary drafts and notes. The City agrees to defend and indemnify Contractor, its employees, and its sub-Contractors and their employees from all claims, damages, expenses, including attorneys’ fees arising or related to the City’s use of the drawings, plans, specifications, or the intellectual property produced by the Contractor or its sub-Contractors pursuant to this Agreement on a project other than the project for which they were produced. City grants to Contractor a royalty-free, nonexclusive, license in the Final Design Work for self-promotional Purposes. If the City, in its discretion, determines to modify or alter the Final Design Work or structures that utilized the Final Design Work, the Contractor shall have the right to require the City to remove any attribution of the Work to the Contractor upon written notice to the City. Notwithstanding City’s intellectual property rights, Contractor may utilize any of the constituent parts of the Work on any of its other projects except for any unique or distinctive architectural components or effects which taken independently or in combination would produce a project with substantially similar and distinctive features to the Work. 3. Time of Beginning and Completion of Performance. This Agreement shall commence at the time a notice to proceed is delivered to the Contractor and shall be completed by the timelines set forth in Exhibit ‘‘A’’; provided however Contractor shall obtain insurance and perform those obligations set forth in Section 11 pertaining to insurance acquisition prior to beginning the Work. 4. Compensation. A. The City shall pay the Contractor only for completed Work and for services actually rendered which are described herein. Such payment shall be full compensation for Work performed or services rendered, including, but not limited to, all labor, materials, supplies, equipment and incidentals necessary to complete the Work. B. The Contractor shall be paid such amounts and in such manner as described in Exhibit B. C. Contractor may receive payment as reimbursement for Eligible Expenses actually incurred. ‘‘Eligible Expenses’’ means those types and amounts of expenses either listed in Exhibit C or such expenses as are approved for reimbursement by the City in writing prior to the expense being incurred. If Exhibit C is either blank or not attached, expenses may not be reimbursed unless prior written approval was obtained from the City. An expense shall not be reimbursed if: (1) the expense is not identified in Exhibit C; (2) the expense exceeds the per item or cumulative limits for such expense if it is identified in Exhibit C; or (3) the expense was not approved in writing by an authorized City representative prior to the Contractor incurring the expense. If, and to the extent, overnight lodging in western Washington is authorized, Contractor is strongly encouraged to lodge within the corporate limits of City. When authorized, Contractor will be reimbursed 100% of lodging expense, if lodged within the corporate limits of the City, but Contractor will be reimbursed 50% of lodging expense when lodged outside the corporate limits of the City. If authorized, the City may (at its sole option) obtain or arrange air travel for the Contractor . D. Total compensation, including all services and expenses, shall not exceed a maximum of Two Million Four Hundred Ninety Seven Thousand Nine Hundred Sixty-One Dollars and sixteen cents ($2,497,961.16) unless it as an Additional Service approved in writing through amendment as set forth in Exhibit B. PROFESSIONAL SERVICES AGREEMENT Page 2 of 14 Mount Vernon Library Commons (Form Approved by City Atty’s Office 4/5/18)  E. If Contractor fails or refuses to correct Work when so directed by the City, the City may withhold from any payment otherwise due an amount that the City in good faith believes is equal to the cost to the City of correcting, re-procuring, or remedying any damage caused by Contractor’s conduct. 5. Method of Payment. A. To obtain payment, the Contractor shall (a) file its request for payment, accompanied by evidence satisfactory to the City justifying the request for payment; (b) submit a report of Work accomplished and status of all active tasks as a percentage to completion(c) to the extent reimbursement of Eligible Expenses is sought, submit itemization of such expenses and copies of receipts and invoices; and (d) comply with all applicable provisions of this Agreement. Contractor shall be paid no more often than once every thirty days. B. All requests for payment should be sent to: William Bullock, PE, MPA - City Engineer City of Mount Vernon Public Works Department 1024 Cleveland Avenue Mount Vernon, WA 98273 mvengineering@mountvernonwa.gov -- preferred method C. Payments are due within 30 days of the date of City’s receipt of Contractor’s properly documented request for payment. Payments due Contractor and unpaid shall bear interest from thirty (30) days after the date of Contractor’s invoice at an annual percentage rate of twelve (12) percent. Contractor may withhold issuance of drawings and work product, suspend Work, or terminate this Agreement, upon fourteen (14) days written notice, if payments are past due when in violation of this Agreement. D. The City may not deduct or withhold from amounts invoiced by Contractor, to offset sums requested by or paid to subcontractors for the cost of changes in the Work, or for damages due to errors or omissions of any consultant contracted by the City. 6. Submission of Reports and Other Documents. The Contractor shall submit all reports and other documents as and when specified in Exhibit A and within this Agreement. Said information shall be subject to reasonable review by the City, and if found to be unacceptable, Contractor shall correct and deliver to the City any deficient Work at Contractor’s expense with all practical dispatch. Contractor shall abide by the City’s reasonable determinations concerning acceptability of Work. 7. Termination of Contract. City reserves the right to terminate this Agreement at any time by sending written notice of termination to Contractor (‘‘Notice’’). The Notice shall specify a termination date (‘‘Termination Date’’) at least fourteen (14) days after the date the Notice is issued. The Notice shall be effective (‘‘Notice Date’’) upon the earlier of either actual receipt by Contractor (whether by fax, mail, delivery or other method reasonably calculated to be received by Contractor in a reasonably prompt manner) or three calendar days after issuance of the Notice. Upon the Notice Date, Contractor shall immediately commence to end the Work in a reasonable and orderly manner. Unless terminated for Contractor’s material breach, the Contractor shall be paid or reimbursed for: (a) all hours worked and Eligible Expenses incurred up to the Notice Date, less all payments previously made; and (b) those hours worked and Eligible Expenses incurred after the Notice Date, but prior to the Termination Date, that PROFESSIONAL SERVICES AGREEMENT PAGE 3 OF 14 MOUNT VERNON LIBRARY COMMONS were reasonably necessary to terminate the Work in an orderly manner. The Notice under this Section 7 shall be sent to the e-mail address identified in Section 25 (unless later amended pursuant to that Section) or by hand delivery. In addition, the Notice may also be sent by any other method reasonably believed to provide Contractor actual notice in a timely manner, such as fax. The City does not by this section waive, release or forego any legal remedy for any violation, breach or non-performance of any of the provision of this Agreement. At its sole option, City may deduct from the final payment due the Contractor (a) any damages, expenses or costs arising out of any such violations, breaches, or non- performance and (b) any other backcharges or credits. 8. Changes. The City may, from time to time, unilaterally change the scope of the Work of the Contractor to be performed hereunder. Such changes, including any increase or decrease in the scope of the Work (and resulting increase or decrease in compensation), shall: (a) be made only in writing and signed by an authorized City representative, (b) be explicitly identified as a Change Order and (c) become a part of this Agreement. Unilateral changes shall include but are not limited to the elimination or modification to any of the Basic Services, Extra Services, and Additional Services in whole or in part set forth in Exhibit A which shall result in the change in compensation owed to the Contractor. 9. Subletting/Assignment of Contracts. Contractor shall not sublet or assign any of the Work without the express, prior written consent of the City; provided however, the following sublets have been pre- approved:  KPFF engineering  TFWB engineers  FSI engineers  GeoEngineers  ERCI (Equinox Research and Consulting International Inc.)  Pacific Surveying & Engineering, Inc.  Swift Company LLC  DCW Cost Management LLC  Greenbusch Group, Inc.  BrandQuery LLC  Clevenger Associates  Studiopacifica  Integrated Design Lab  Kreigh Architecture  The Language Exchange Terms and conditions of this Agreement will be incorporated in any subcontract or subconsultant agreement used by Contractor. 10. Indemnification. To the extent of the Contractor’s fault, breach of this Agreement, willful misconduct, or violation of law, the Contractor hereby agrees, except as otherwise provided in this Section 10, to defend and indemnify the City from any and all Claims arising out of, in connection with, or incident to any negligent or intentional acts, errors, omissions, or conduct by Contractor (or its employees, agents, representatives subcontractors/subconsultants) relating to this Agreement whether such Claims sound in contract, tort, PROFESSIONAL SERVICES AGREEMENT PAGE 4 OF 14 MOUNT VERNON LIBRARY COMMONS or any other legal theory. The Contractor is obligated to defend and indemnify the City pursuant to this paragraph whether a Claim is asserted directly against the City, or whether it is asserted indirectly against the City, e.g., a Claim is asserted against someone else who then seeks contribution or indemnity from the City. The Contractor’s duty to defend and indemnify pursuant to this paragraph is not in any way limited to, or by the extent of, insurance obtained by, obtainable by, or required of the Contractor. The Contractor’s obligations under this paragraph shall not apply to Claims caused by the sole by the negligence of the City. If (1) RCW 4.24.115 applies to a particular Claim, and (2) such Claim is caused by or results from the concurrent negligence of (a) the Contractor, its employees, subcontractors/subconsultants or agents and (b) the City, then the Contractor’s duty to indemnify shall be valid and enforceable only to the extent allowed by RCW 4.24.115. Solely and expressly for the purpose of its duties to indemnify and defend the City, the Contractor specifically waives any immunity it may have under the State Industrial Insurance Law, Title 51 RCW. The Contractor recognizes that this waiver of immunity under Title 51 RCW was specifically entered into pursuant to the provisions of RCW 4.24.115 and was the subject of mutual negotiation. As used in this paragraph: (1) ‘‘City’’ includes the City’s officers, employees, agents, and representatives and (2) ‘‘Claims’’ include, but is not limited to, any and all losses, claims, demands, expenses (including, but not limited to, attorney’s fees and litigation expenses), suits, judgments, or damage, irrespective of the type of relief sought or demanded, such as money or injunctive relief, and irrespective of whether the damage alleged is bodily injury, damage to property, economic loss, general damages, special damages, or punitive damages. If, and to the extent, Contractor employs or engages subconsultants or subcontractors, then Contractor shall ensure that each such subconsultant and subcontractor (and subsequent tiers of subconsultants and subcontractors) shall expressly agree to defend and indemnify the City to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. 11. Insurance. A. Contractor shall comply with the following conditions and procure and keep in force during the term of this Agreement, at Contractor’s own cost and expense, the following policies of insurance with companies authorized to do business in the State of Washington, which are rated at least ‘‘A’’ or better and with a numerical rating of no less than seven (7), by A.M. Best Company and which are acceptable to the City. 1. Workers’ Compensation Insurance as required by Washington law and Employer’s Liability Insurance with limits not less than $1,000,000 per occurrence. If the City authorizes sublet work, the Contractor shall require each subcontractor to provide Workers’ Compensation Insurance for its employees, unless the Contractor covers such employees. 2. Commercial General Liability Insurance on an occurrence basis in an amount not less than $1,000,000 per occurrence and at least $2,000,000 in the annual aggregate, including but not limited to: premises/operations (including off-site operations), blanket contractual liability and broad form property damage. 3. Business Automobile Liability Insurance in an amount not less than $1,000,000 per occurrence, extending to any automobile. A statement certifying that no vehicle will be used in accomplishing this Agreement may be substituted for this insurance requirement. 4. Professional Errors and Omissions Insurance in an amount not less than $2,000,000 per occurrence and $2,000,000 in the annual aggregate. Such coverage may be written on a claims made PROFESSIONAL SERVICES AGREEMENT PAGE 5 OF 14 MOUNT VERNON LIBRARY COMMONS basis. Prior to the issuance of the Notice to Proceed set forth in Section 3, Contractor shall pursue additional professional errors and omissions insurance in an amount not less than $5,000,000 per occurrence and $5,000,000 in the annual aggregate either through separate policy, enhancement of an existing policy, excess liability policy or any combination thereof. Contractor shall report to the City the costs for the additional insurance described above. Upon approval by the City, Contractor shall procure the additional insurance set forth in this Section and City shall pay all the costs for additional insurance which shall be additional to amounts set forth in Exhibit B. B. The above liability policies shall be primary as to the City and shall contain a provision that the policy shall not be canceled or materially changed without 30 days prior written notice to the City. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of the Contractor to furnish the required insurance during the term of this Agreement. The Contractor shall notify the City promptly of any cancellation notice that may jeopardize the insurance coverage required under this Agreement. C. Upon written request by the City, the insurer or his/her agent will furnish, prior to or during any Work being performed, a copy of any policy cited above, certified to be a true and complete copy of the original. D. Prior to the Contractor performing any Work, Contractor shall provide the City with a Certificate of Insurance acceptable to the City Attorney evidencing the required insurance. Contractor shall provide the City with either (1) a true copy of an endorsement naming the City of Mount Vernon, its officers, employees and agents as Additional Insureds on the Commercial General Liability Insurance policy and the Business Automobile Liability Insurance policy with respect to the operations performed and services provided under this Agreement and that such insurance shall apply as primary insurance on behalf of such Additional Insureds or (2) a true copy of the blanket additional insured clause from the policies. Receipt by the City of any certificate showing less coverage than required is not a waiver of the Contractor’s obligations to fulfill the requirements. E. If the policy listed in paragraph 11.A.4. above, Professional Errors and Omissions Insurance, is on a claims made policy form, the retroactive date on the policy shall be the effective date of this Agreement or prior. The retroactive date of any subsequent renewal of such policy shall be the same as the original policy provided. The extended reporting or discovery period on a claims made policy form shall not be less than 36 months following expiration of the policy. F. Contractor certifies that it is aware of the provisions of Title 51 of the Revised Code of Washington that requires every employer to be insured against liability of Workers’ Compensation, or to undertake self-insurance in accordance with the provisions of that Title. Contractor shall comply with the provisions of Title 51 of the Revised Code of Washington before commencing the performance of the Work. Contractor shall provide the City with evidence of Workers’ Compensation Insurance (or evidence of qualified self-insurance) before any Work is commenced. G. In case of the breach of any provision of this section, the City may, at its option and with no obligation to do so, provide and maintain at the expense of Contractor, such types of insurance in the name of the Contractor, and with such insurers, as the City may deem proper, and may deduct the cost of providing and maintaining such insurance from any sums which may be found or become due to Contractor under this Agreement or may demand Contractor to promptly reimburse the City for such cost. PROFESSIONAL SERVICES AGREEMENT PAGE 6 OF 14 MOUNT VERNON LIBRARY COMMONS 12. Independent Contractor. A. This Agreement neither constitutes nor creates an employer-employee relationship. Contractor must provide services under this Agreement as an independent contractor. Contractor must comply with all federal and state laws and regulations applicable to independent contractors including, but not limited to, the requirements listed in this Section 12. Contractor agrees to indemnify and defend the City from and against any claims, valid or otherwise, made against the City because of these obligations. B. In addition to the other requirements of this Section 12, if the Contractor is a sole proprietor, the Contractor agrees that the Contractor is not an employee or worker of the City under Chapter 51 of the Revised Code of Washington, Industrial Insurance for the service performed in accordance with this Agreement, by certifying to the following: (1) Contractor is free from control or direction over the performance of the service; and (2) The service performed is outside the usual course of business for the City, or will not be performed at any place of business of the City, or the Contractor is responsible for the costs of the principal place of business form which the service is performed; and (3) Contractor is customarily engaged in an independently established business of the same nature as the service performed, or has a principal place of business for the service performed that is eligible for a business deduction for federal income tax purposes; and (4) On the effective date of this Agreement, the Contractor is responsible for filing a schedule of expenses, for the next applicable filing period, with the internal revenue service for the type of service performed; and (5) By the effective date of this Agreement or within a reasonable time thereafter, the Contractor has established an account with the department of revenue and other state agencies, where required, for the service performed for the payment of all state taxes normally paid by employers and businesses and has registered for and received a unified business identifier number from the state of Washington; and (6) By the effective date of this Agreement, the Contractor is maintaining a separate set of records that reflect all items of income and expenses of the services performed. C. Any and all employees of the Contractor, while engaged in the performance of any Work, shall be considered employees of only the Contractor and not employees of the City. The Contractor shall be solely liable for any and all claims that may or might arise under the Worker' s Compensation Act on behalf of said employees or Contractor, while so engaged and for any and all claims made by a third party as a consequence of any negligent act or omission on the part of the Contractor’s employees, while so engaged on any of the Work. D. The Contractor shall comply with all applicable provisions of the Fair Labor Standards Act and other legislation affecting its employees and the rules and regulations issued thereunder insofar as applicable to its employees and shall at all times save the City free, clear and harmless from all actions, claims, demands and expenses arising out of said act, and rules and regulations that are or may be promulgated in connection therewith. E. The Contractor assumes full responsibility for the payment of all payroll taxes, use, sales, income, or other form of taxes (such as state and, city business and occupation taxes), fees, licenses, excises or payments required by any city, federal or state legislation which are now or may during the term of the Agreement be enacted as to all persons employed by the Contractor and as to all duties, activities and requirements by the Contractor in performance of the Work and Contractor shall assume PROFESSIONAL SERVICES AGREEMENT PAGE 7 OF 14 MOUNT VERNON LIBRARY COMMONS exclusive liability therefore, and meet all requirements thereunder pursuant to any rules or regulations that are now or may be promulgated in connection therewith. 13. Employment. The Contractor warrants that he had not employed or retained any company or person, other than a bona fide employee working solely for the Contractor, to solicit or secure this Agreement and that he has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 14. Audits and Inspections. At any time during normal business hours and as often as the City may deem necessary, the Contractor shall make available to the City for the City’s examination all of the Contractor’s records and documents with respect to all matters covered by this Agreement and, furthermore, the Contractor will permit the City to audit, examine and make copies, excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 15. City of Mount Vernon Business License. Contractor agrees to obtain a City of Mount Vernon business license prior to performing any Work pursuant to this Agreement. 16. State of Washington Requirements. Contractor agrees to register and obtain any State of Washington business licenses, Department of Revenue account and/or unified business identifier number as required by RCW 50.04.140 and 51.08.195 prior to performing any Work pursuant to this Agreement. 17. Compliance with Federal, State and Local Laws. Contractor shall comply with and obey all federal, state and local laws, regulations, and ordinances applicable to the operation of its business and to its performance of the Work hereunder. 18. Compliance with the Washington State Public Records Act. Contractor acknowledges that the City is subject to the Public Records Act, chapter 42.56 RCW (the ‘‘Act’’). All records owned, used or retained by the City are public records subject to disclosure unless exempt under the Act, whether or not such records are in the possession or control of the City or Contractor. Contractor shall cooperate with the City so that the City may comply with all of its obligations under the Act. Within ten (10) days after receipt of notice from the City, Contractor shall deliver to the City copies of all records relating to this Agreement or relating to the Work that the City determines qualify as the City’s public records under the Act. If the City receives a public records request relating to this Agreement or relating to the Work, the City shall seek to provide notice to Contractor at least ten (10) days before the City releases records pursuant to such public records request, but in no event will the City have any liability to Contractor for any failure of the City to provide such notice. In addition to its other indemnification and defense obligations under this Agreement, Contractor shall indemnify and defend the City from and against any and all losses, penalties, fines, claims, demands, expenses (including, but not limited to, attorney’s fees and litigation expenses), suits, judgments, or damage arising from or relating to any failure of Contractor to comply with this Section 18. PROFESSIONAL SERVICES AGREEMENT PAGE 8 OF 14 MOUNT VERNON LIBRARY COMMONS 19. Compliance with Grant Terms and Conditions. Contractor shall comply with any and all conditions, terms and requirements of any federal, state or other grant that wholly or partially funds Contractor’s Work hereunder. 20. Equal Employment Opportunity. Contractor shall not discriminate against any employee, applicant for employment, independent Contractor, or proposed independent Contractor, on the basis of race, color, religion, sex, age, disability, marital state, or national origin. 21. Waiver. Any waiver by the Contractor or the City or the breach of any provision of this Agreement by the other party will not operate, or be construed, as a waiver of any subsequent breach by either party or prevent either party from thereafter enforcing any such provisions. 22. Complete Agreement. This Agreement contains the complete and integrated understanding and Agreement between the parties and supersedes any understanding, Agreement or negotiation whether oral or written not set forth herein including if the Contractor’s proposal is attached as an exhibit, and if such proposal contains or incorporates any conditions or terms in addition to or different from the terms of this Agreement, then the Contractor expressly agrees that such conditions or terms are neither incorporated nor included into this Agreement between the City and Contractor. 23. Modification of Agreement. This Agreement may be modified as provided in ¶8, or by a writing explicitly identified as a modification of this Agreement that is signed by authorized representatives of the City and the Contractor. 24. Severability. If any part of this Agreement is found to be in conflict with applicable laws, such part shall be inoperative, null and void, insofar as it is in conflict with said laws, the remainder of the Agreement shall remain in full force and effect. 25. Notices. Notice to any party shall be sent in writing and (a) hand delivered, in which case notice shall be deemed delivered on the date of the hand delivery, (b) sent by certified mail, postage prepaid, return-receipt requested addressed to the party to be notified as identified in this Section and shall be deemed delivered upon actual delivery evidenced by return receipt or if evidenced by return receipt that delivery was impossible three (3) days after deposit, postage prepaid in the U.S. mail, or (c) sent via electronic mail, provided that receipt of the same if telephonically or electronically confirmed by the recipient or his or her assistant, in which case notice shall be deemed delivered when receipt is confirmed (provided that such confirmation is before 5:00 p.m. on a business day, and, if after such time, then on the next business day.) Any notice given by counsel to a party shall have the same effect as if given by such party. The addresses and numbers listed below may be changed by written notice to be provided to the other party in accordance with this Section; provided, however, that no notice of a change of address or number shall be effective until actual receipt of such notice. A. Notices to the City of Mount Vernon shall be sent to the following address: William Bullock, PE, MPA - City Engineer City of Mount Vernon Public Works Department 1024 Cleveland Avenue PROFESSIONAL SERVICES AGREEMENT PAGE 9 OF 14 MOUNT VERNON LIBRARY COMMONS  Mount Vernon, WA 98273 billb@mountvernonwa.gov With copy to: Office of the City Attorney Attn: Kevin Rogerson 910 Cleveland Avenue Mount Vernon, WA 98273 Phone: 360-336-6203 Email: kevinr@mountvernonwa.gov B. Notices to the Contractor shall be sent to the following address: Julie Blazek, Partner HKP Architects, PLLC 204 Montgomery Mount Vernon, WA 98273 jblazek@hkpa.com 26. Venue. It is agreed that venue for any lawsuit arising out of this Agreement shall be Skagit County, Washington. 27. Governing Law. The laws of the State of Washington, without giving effect to principles of conflict of laws, govern all matters arising out of or relating to this Agreement. 28. Signature. At the sole discretion of the City, the City may consent to the Contractor’s signature on this Agreement or amendment thereof being by email, fax, photocopy, pdf or other electronic means, in which case such Contractor signature will be deemed an original signature for all purposes. The City will be deemed to have given such consent effective upon execution of this Agreement or amendment thereof by the Mayor of the City. PROFESSIONAL SERVICES AGREEMENT PAGE 10 OF 14 MOUNT VERNON LIBRARY COMMONS IN WITNESS WHEREOF, the City and Contractor have executed this Agreement as of the date first above written. City of Mount Vernon HKP Architects, PLLC a Professional Limited Liability Company By: Jill Boudreau By: Julie Blazek Title: Mayor Title: Partner Date: Date: Attest: Approved as to form: Doug Volesky, City Clerk Kevin Rogerson, City Attorney Attachments: Exhibits “A,” “B,” and “C” PROFESSIONAL SERVICES AGREEMENT PAGE 11 OF 14 MOUNT VERNON LIBRARY COMMONS  Exhibit A Scope of Work 1. Work to be Performed The following Sections of the attached Letter of Proposal dated 5/21/2011: Sections 1, 2.1- 2.6, Section 3 (not including Bid Period, Construction Contract Administration, and Closeout phases), Section 10, and Section 4 (upon written amendment). City’s responsibilities are set forth in Section 5 and 11. Extra Services of the HKP scope of work are further described in Section 1 Sustainability, Section 2 Furniture, Fixtures, and Equipment (FF&E), Section 3 Funding, and Section 4 Translation Services (if not provided by Owner) of the attached HKP Document. PROFESSIONAL SERVICES AGREEMENT – EXHIBIT A PAGE 12 OF 14 MOUNT VERNON LIBRARY COMMONS  Exhibit B Service Fees Compensation for Basic Services identified in HKP Letter of Proposal dated 5/21/2021 Section 2 Scope of Basic Services and Extra Services shall not exceed a fixed fee of $2,497,961.16 (Two Million, Four Hundred Ninety-Seven- Thousand, Nine Hundred Sixty-One US Dollars and Sixteen Cents) including reimbursable expenses and will be billed monthly and owed only as services are completed. Billing such services will be as set forth in Section 7.1 in HKP Letter of Proposal dated 5/21/2021 attached hereto. Additional Services will be billed to the City separately, either in a lump sum, or on an hourly basis, in accordance with the applicable hourly rate schedule, whichever form of fee is agreed to by the parties in a written amendment to the contract. PROFESSIONAL SERVICES AGREEMENT – EXHIBIT B PAGE 13 OF 14 MOUNT VERNON LIBRARY COMMMONS  Exhibit C Reimbursable Expenses Reimbursable and consultant expenses are in addition to compensation for professional services and include the following expenditures required by the project or requested by the Owner:  Printing and reproduction  Travel and lodging as set forth in Section 4 C  Long distance telephone calls  Faxes  Postage  Permit fees  Special sample preparation  Models  Renderings  Other similar project related expenses when approved by the City as set forth in Section 4C Expenses shall be charged at a rate of 1.10 times the value of expenditures. Also included is the expense of administrative time expended in compiling backup for invoices. PROFESSIONAL SERVICES AGREEMENT – EXHIBIT C PAGE 14 OF 14 MOUNT VERNON LIBRARY COMMONS  AGENDA ITEM: B DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Rebecca Lowell, Development Services SUBJECT: CLOSED RECORD PUBLIC HEARING CONCURRENCY APPROVAL, GROCERY OUTLET, ENGR20-0295 RECOMMENDED ACTION: Staff recommends that Council make a motion to authorize the Mayor to sign the accompanying Resolution approving the traffic concurrency permit for Grocery Outlet at 525 E College Way. INTRODUCTION/BACKGROUND: The City is processing a traffic concurrency permit that proposes improvements to approximately 22,000 square feet (s.f.) of an existing approximate 88,500 s.f. multi-tenant commercial building in anticipation of Grocery Outlet occupying the improved space. The new use of this existing structure is anticipated to generate 77 new peak hour traffic trips. Uses that generate 75 or more net new traffic trips trigger a Type IV (Hearing Examiner recommendation and City Council final approval) traffic concurrency permit. The to-be improved tenant space has an address of 525 E College Way and is described by the Skagit County Assessor as parcel P53856. The site is located at the NW corner of the intersection of East College Way and Urban Avenue within the NW ¼ of Section 17, Township 34N, Range 04E, W.M. Please see the following vicinity map that identifies the location of the site. N FINDINGS/CONCLUSIONS: The developer has completed the procedural requirements found in MVMC Chapter 14.05 for Type IV Permits; and as conditioned, will comply with the City’s concurrency requirements. The City’s Hearing Examiner held an open record public hearing on April 12, 2021 and recommended approval with conditions of the subject permit. RECOMMENDATION: Council move to approve the accompanying Resolution. Attached is the Transportation Concurrency Review for this project that contains the complete code analysis for the subject project and other relevant details. ATTACHED: • Proposed Resolution • Hearing Examiner’s Recommendation • Staff Report, SEPA and Procedural Items  AGENDA ITEM: C DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Jennifer Berner SUBJECT: THE CLEAN TEAM AGREEMENT AMENDMENT RECOMMENDED ACTION: Staff recommends Council authorize the Mayor to sign the amendment to the agreement extending the term through September 2021. INTRODUCTION/BACKGROUND: The Clean Team was hired in 2020, during staff cut backs related to COVID, to assist with the cleaning and sanitizing of City owned public restrooms. FINDINGS/CONCLUSIONS: With the assistance of The Clean Team, public restrooms have been available for public use. With current staffing levels and work load, utilizing The Clean Team expertise to assist with janitorial services will free up department staff for other park, trail, and facility maintenance. RECOMMENDATION: Staff recommends extending the agreement with The Clean Team through September 2021. ATTACHED: Amendment to The Clean Team Agreement.  AGENDA ITEM: D DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Kim Kleppe, IS Director SUBJECT: FIBER LICENSE AND OPERATING AGREEMENT RECOMMENDED ACTION: Staff recommends that Council authorize the Mayor to execute a Fiber Optic and Operating Agreement with Northwest Programming, Inc. Dba: NP Information Systems. INTRODUCTION/BACKGROUND: -The City has agreements with 4 providers currently. - Council has previously authorized fiber license agreements similar to the attached. - This agreement will allow NP Information Systems to provide ISP services to the City of Mount Vernon fiber customers. RECOMMENDATION: Staff recommends approval.  AGENDA ITEM: E DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Esco Bell, Public Works Director SUBJECT: ORDINANCE AMENDING REVISIONS TO CHAPTER 8.12 OF THE MOUNT VERNON MUNICIPAL CODE REGULATING SOLID WASTE COLLECTION WITHIN THE CITY OF MOUNT VERNON RECOMMENDED ACTION: Staff recommends approval of ordinance amending revisions to Chapter 8.12 of the Mount Vernon Municipal Code regulating solid waste collection within the City of Mount Vernon. INTRODUCTION/BACKGROUND: The City and Waste Management have been working for the past several months on an agreement for curbside recycle services for the City of Mount Vernon. Now that the agreement has been completed the City needs to update its municipal code, Chapter 8.12 to reflect changes made by this new agreement. The revisions to the ordinance are summarized as follows:  Rates and associated adjustments are changed and updated.  Waste Management will be billing for its services instead of the City performing this function. The ordinance has been updated for this change.  Lastly, there are numerous minor adjustments and edits that have been made to modernize the ordinance. FINDINGS/CONCLUSIONS: The City of Mount Vernon entered into an agreement with Waste Management for residential collection, processing, and marketing of curbside recyclables. Terms (including rates) within the agreement for services have changed and practices have changed over time requiring the City to amend and update its solid waste regulations. The revisions to the ordinance are summarized as follows:  Rates and associated adjustments are changed and updated.  Waste Management will be billing for its services instead of the City performing this function. The ordinance has been updated for this change.  There are numerous minor adjustments and edits that have been made to modernize the ordinance. RECOMMENDATION: Staff recommends approval of the attached ordinance amending Section 8.12 of the Mount Vernon Municipal Code regulating solid waste collection within the City of Mount Vernon. ATTACHED: Ordinance  AGENDA ITEM: F DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Kevin Rogerson; City Attorney SUBJECT: ORDINANCE GRANTING A FRANCHISE AGREEMENT WITH SKAGITNET RECOMMENDED ACTION: Approval of Ordinance. INTRODUCTION/BACKGROUND: SkagitNet, LLC (“SkagitNet”) is a Washington limited liability company that is owned by the Port of Skagit and the Skagit County Public Utilities District. SkagitNet has requested that the City Council grant it a nonexclusive limited franchise for the use of its streets and other rights of way to provide for a dark fiber optic backbone to its telecommunications network. The franchise area is limited to only rights of way identified on Exhibit A of the agreement allowing telecommunication facilities to be located in order to allow for a fiber optic trunk line consisting of fiber optic cables to connect to SkagitNet’s colocation facility(s) so that it may provide telecommunication services outside the City of Mount Vernon. The franchise agreement is further limited in that it excludes the selling, licensing, leasing or provision of any lit or dark fiber services or connections from SkagitNet Facilities providing telecommunication services within the City of Mount Vernon, with the exception that: i) Public Utility No. 1 of Skagit County may use SkagitNet Facilities to provide internal services to its offices and support to its water system infrastructure located within the City and ii) SkagitNet may lease or otherwise provide connectivity to its fiber optic trunk line to third party wholesalers in order to operate Skagit Net’s colocation facility(ies) if needed to provide telecommunications service outside the City of Mount Vernon. The proposed term is seven years. The City through its City Attorney’s Office and related city departments (Public Works, IS, and Planning) have negotiated a new proposed franchise agreement with SkagitNet for the installation and operation of the fiber backbone in the City’s rights of way. Similar to other telecommunication franchises, the City collects no franchise fee (currently state law pre- empts the city from seeking such fees) from SkagitNet. The City has superior rights to the use of the rights-of-way. The cost of any new construction or maintenance of SkagitNet’s facilities shall be solely at their expense. The City requires SkagitNet to maintain insurance and a franchise bond through the entire period of this agreement. There are unique procedural requirements when a city legislative body approves a franchise. Franchise agreements must be approved through ordinance or resolution. Council must wait at least five days after the introduction of the franchise before taking action, the franchise was introduced to council May 12, 2021. Also, franchise agreements must first be submitted to the city attorney before action and requires at least a majority vote of the entire legislative body. FINDINGS/CONCLUSIONS: That approval serves the City’s interest. RECOMMENDATION: Approval. ATTACHED: Ordinance and agreement with effective date.  AGENDA ITEM: G DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Kevin Rogerson; City Attorney SUBJECT: PROPOSED ORDINANCE FOR REVISIONS OF FIREWORKS REGULATIONS RECOMMENDED ACTION: Defer to council. INTRODUCTION/BACKGROUND: An ad hoc committee of the City Council and several members of the community met four times since February 2021 to review the current regulations for fireworks in the city of Mount Vernon. The Committee conducted a community-wide survey, and received feedback from over 800 Mount Vernon residents on the topic. The Committee considered those responses to inform their analysis and discussion; and finally to present the attached recommendations for changes to the City’s Fireworks Regulations set forth in Chapter 8.24. FINDINGS/CONCLUSIONS: That adoption of the proposed ordinance would revise the penalties for violations of the City’s fireworks regulations, not otherwise violations of state law, from an escalating penalty schedule of $50.00 first offense, $100.00 second offense, $150.00 third offense, and $200.00 for a fourth and greater offense within a three year period, to a civil infraction penalty amount of $355.00 (including statutory assessments). The Mount Vernon Fire Department has also asked that the City amend its definitions further clarifying which fireworks (otherwise allowed by state law) are not permitted within the City. Included are those recommended changes adding a definition of “Roman Candles” which are not allowed and further clarifying the term “Mortar-type firework,” also not allowed. If adopted pursuant to state law this ordinance may take effect no sooner than one year after its adoption. RECOMMENDATION: Defer to council. ATTACHED: Proposed Ordinance  AGENDA ITEM: H DATE: May 26, 2021 TO: Mayor Boudreau and City Council FROM: Kevin Rogerson; City Attorney SUBJECT: ADOPTION OF NEW STATE DRUG POSSESSION LAWS RECOMMENDED ACTION: Council Adopt the Proposed Ordinance. INTRODUCTION/BACKGROUND: The Washington State Legislature recently passed Senate Bill 5476 signed by the governor on May 13, 2021 which addresses a recent decision by the Washington Supreme Court (State v. Blake, No. 96873-0 (Feb. 25, 2021)) holding that Washington’s statutes including RCW 69.50.4011, RCW 69.50.4013, and RCW 69.41.030 criminalizing possession of a controlled substance, counterfeit substance, or legend drug without a prescription is unconstitutional. Senate Bill 5476 addresses a number of things - criminal penalties, establishing a committee to make recommendations on how to address the long-term impacts of Blake, investments in substance misuse prevention efforts, law enforcement training, as well as tens of millions of dollars to address the cost of vacating previous felony convictions. It amends RCW 69.50.4011, RCW 69.50.4013, and RCW 69.41.030 adding the mens rea element of knowingly possessing to the crime of criminal possession of a controlled substance to correct the defect identified by the Washington Supreme Court. SB 5476 further reclassified the criminal penalties for such crimes reducing such offenses to a simple misdemeanor (90 days in jail and/or $1000 fine maximum penalties). Reducing the penalties for the crime of possession to a misdemeanor results in the Skagit County District Court and Mount Vernon Municipal Court Department (when such laws are adopted by the City) having jurisdiction for the prosecution of any new cases. The legislation requires law enforcement officers who encounter an individual in possession of a controlled substance to offer a diversion to seek a substance use disorder assessment and treatment services. The first two interactions by law enforcement must result in such a diversion. After which further contacts allow the officer to arrest and pursue a misdemeanor charge. The ordinance adopts by reference and places into the City’s criminal municipal code Chapter 9.12 CONTROLLED SUBSTANCES, PARAPHERNALIA, POISONS AND TOXIC FUMES. The criminal possession offenses reclassified thereby provides authority for the City to prosecute such crimes pursuant to statute when such crimes occur within the City. FINDINGS/CONCLUSIONS: That adoption of the proposed ordinance is within the best interest of the City. RECOMMENDATION: Adopting the Proposed Ordinance. ATTACHED: Proposed Ordinance