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11/02/2009 City CouncilCORRECTED 12 -15 -09 November 2, 2009 At 6:30 p.m., Mayor Haakenson announced that the City Council would be meeting in executive session to receive legal advice regarding pending or threatened litigation. He stated that the executive session was scheduled to last approximately 30 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. No action was anticipated to occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Haakenson, Councilmembers Orvis, Wambolt, Plunkett, Bernheim, Peterson. Olson and Wilson. Others present were City Attorney Scott Snyder, Attorney Stephanie Croll, and City Clerk Sandy Chase. At 7:00 p.m., Mayor Haakenson announced to the public that an additional 15 minutes would be needed in executive session. At 7:15 p.m., Mayor Haakenson again announced to the public that an additional 15 minutes would be needed in executive session. The executive session concluded at 7:25 p.m. The regular Edmonds City Council meeting was called to order at 7:29 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor D. J. Wilson, Council President Michael Plunkett, Councilmember Peggy Pritchard Olson, Councilmember Steve Bernheim, Councilmember Dave Orvis, Councilmember Ron Wambolt, Councilmember Strom Peterson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT Tom Tomberg, Fire Chief Mark Correira, Assistant Fire Chief Al Compaan, Police Chief Stephen Clifton, Community Services /Economic Development Director Noel Miller, Public Works Director Lorenzo Hines, Finance Director Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, TO APPROVE THE AGENDA, REMOVING ITEM 9 FROM THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF OCTOBER 27, 2009. C. APPROVAL OF CLAIM CHECKS #114982 THROUGH #115132 DATED OCTOBER 29, 2009 FOR $518,862.77. Edmonds City Council Approved Minutes November 2, 2009 Page 1 CORRECTED 12 -15 -09 D. ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM RANDALL BAIRD (AMOUNT UNDETERMINED), K. FRED BRESKE ($500,000), DONNA L. BRESKE ($500,000),9330 LLC ($500,000), AND SCOTT CONAHAN ($686.27). E. AUTHORIZATION FOR MAYOR TO SIGN FUNDING AGREEMENTS WITH THE WASHINGTON STATE GENERAL ADMINISTRATION FOR AN ENERGY EFFICIENCY IMPROVEMENT PROJECT AT THE WASTEWATER TREATMENT PLANT. F. AUTHORIZATION TO SURPLUS SEIZED VEHICLE Council President Wilson commented on the recent attack on two uniformed Police Officers in Seattle and requested the audience observe a moment of silence. 3. REPORT FROM COMMUNITY TRANSIT ON BUS RAPID TRANSIT. Joyce Eleanor, Community Transit, reported Swift Bus Rapid Transit would be operational in 26 days. She recognized Edmonds as an outstanding partner in this project. She invited the public to a community celebration on Sunday, November 29 at 2:00 p.m. and the Council to the invitation -only sponsored lunch preceding the celebration at 11:30 a.m. at the Everett Station. The private lunch is a thank you to the stakeholders and partners in the project; invited guests will take an inaugural ride of a Swift bus down the corridor to Lynnwood where they will be met by Swift buses from the south filled with area residents. The Swift buses will meet at the Crossroads station at 196tt' & Highway 99 where the community celebration will be held. The community celebration will include family- oriented activities, dedication of the line, launching the first buses into service, music and celebration. Swift is an important service for Edmonds, Community Transit and Snohomish County. Swift is a major transit improvement, greatly improving frequency of bus service on Highway 99 all day and providing a much needed, single seat ride between Everett Station and South Snohomish County. Swift began with a Board resolution in December 2005 and service will be launched less than four years later in November 2009. She expressed her gratitude to Edmonds, Lynnwood, Snohomish County and Everett for working with Community Transit on this project. She reported Swift was on time and under budget by approximately $2.5 million. Although Community Transit had a great year in 2009 with the opening of the Mountlake Terrace Transit Center, construction of the Marysville Cedar Grove Park & Ride and the start of Swift, Community Transit has also felt the sting of the economy. Community Transit relies heavily on sales tax revenue and this year's revenues are down approximately 18% compared to 2007 levels. Community Transit believes sales tax revenues have bottomed out but anticipate a slow recovery and protections to service via the use of reserves and shifting federal grants are not sustainable over multiple years. Community Transit is preparing its 2010 budget and it assumes continued lower revenue levels, transit service efficiencies that will not be restored and likely service reductions which they hope can be restored when economic conditions improve. The Board will approve a budget in December and they will seek public input on proposed service reductions in January. The decline in the economy and the resulting loss of sales tax revenue also severely limited Community Transit's ability to fund capital needs such as bus and van replacement, a loss projected to total 5180 million through 2013. Over the past two years Community Transit has borrowed from its reserves to keep services intact. Community Transit will continue to seek ways to replenish its capital budget to ensure quality service in the future. Edmonds City Council Approved Minutes November 2, 2009 Page 2 CORRECTED 12 -15 -09 To those who may question why Community Transit was implementing Swift when they were facing challenges to their capital and operating budget, she explained Swift was underway before the budget crisis occurred. Over half of Swift's capital funding came from other sources including federal, state and local and via a partnership with Everett. A series of grants, partnership funds and fare revenues will pay approximately 90% of Swift's operating costs through 2012. She explained Swift is Community Transit's future; not only a major transit improvement on Highway 99, Community Transit's busiest corridor, this higher frequency service is what they intend to bring to Snohomish County's other congested corridors via a network of Swift lines in the future. Council President Wilson commented he found it an honor to be appointed to the Community Transit Board and regretted that time devoted to the City's budget and his day job had affected his ability to participate. 4. PUBLIC HEARING ON FIRE DISTRICT 1 CONTRACT OPTION 4. IN ADDITION TO CONTRACTING FOR SERVICES WITH FIRE DISTRICT 1 THIS OPTION INCLUDES SELLING APPARATUS (ENGINES, AID CARS, AND EQUIPMENT), AND KEEPING FIRE STATIONS, LAND AND TRANSPORT FEES. Mayor Haakenson suggested staff respond to questions submitted yesterday and today by a Councilmember and a citizen. Councilmember Bernheim asked why response times were identified in minutes and seconds in Edmonds' contract with Fire District 1 for fire service to Esperance but in the proposed contract for fire service, Fire District 1 was required only to maintain the current level of service. Fire Chief Tom Tomberg answered the Esperance contract was between the City and Fire District 1 for the City of Edmonds Fire Department to provide fire service to Esperance, an unincorporated area in Fire District 1. Under the proposed contract, Fire District 1 would provide fire service to Edmonds. The standards referred to by Councilmember Bernheim addressed how the City provided service to Esperance under four levels of service. The proposed contract with Fire District 1 references RCW 35.103, codification of Senate House Bill 1756, that requires Fire Departments in the State of Washington to adopt standards of response. The Edmonds City Council adopted the 11 standards in RCW 35.103 in November 2006. Staff has provided three reports to the Council regarding the Fire Department's performance in meeting those standards. He summarized RCW 35.103 was referenced in Section 2.4, 2.5 and 2.8 and the contract actually referenced 11 standards. Mr. Snyder commented this had been a subject of some negotiation between Fire District 1 counsel and himself One of the main reasons this contract was different was because the State statute was adopted after the Esperance contract was approved and prior to the date the proposed contract was drafted. His intent was to ensure the Council would retain its ability to set the standards and not be locked in by contract. For example, if the Council wanted to amend the standards by increasing or decreasing levels of service, the Council would have that right independent of the contract. Fire District 1 wanted the ability to recover the cost if additional staffing was required to meet the amended response time. Councilmember Bernheim questioned whether requiring Fire District 1 to meet current levels of service was too vague and whether the 11 response time standards should be stated instead. Mr. Snyder reiterated his intent for the Council to retain the legislative discretion to amend the standards as they wished rather than establish them as a contract term that would be subject to renegotiation. Councilmember Bernheim pointed out the response times referred to current levels of service and he questioned what the current levels of service were. Mr. Snyder responded they were the levels the Council had adopted as the City's service standards. Edmonds City Council Approved Minutes November 2, 2009 Page 3 CORRECTED 12 -15 -09 Councilmember Orvis commented that in addition to specifying levels of service, deployment was also identified as three firefighters at each fire station, a battalion chief and two dedicated medics. Chief Tomberg agreed. Staff responded to the following questions posed via email from George Murray: 1. Litigation —If there should be some law suits in relation to fire operations, who is responsible? Is the town of Edmonds liable and in what ways? I remember the litigation after the warehouse fire in Seattle when several firemen lost their lives and their families sued Seattle. Chief Tomberg responded the employer would be responsible in the event of litigation; the firefighters' employer would be Fire District 1 under the proposed contract. Items 16, 17 and 18 on page 15 and 1.6 of the Interlocal Agreement states the City and District are independent municipal governments, and addresses insurance and dispute resolution. Mr. Snyder explained claims by former City employees relating to actions taken while the individuals were City employees were the City's responsibility; once transferred, employees' claims would be defended by the entity that employed them. If the contract were terminated and the employees transferred back, the City would be responsible for claims after they transferred back and Fire District 1 would indemnify the City from claims made prior to that date. He summarized the entity employing and directing the employee was responsible for liability. 2. Personnel — Why does the city need a fire marshal and a fire inspector when the Fire District is taking on responsibility for fire service? Do towns in the Fire District have these two positions on their town staffs? (e.g. MLT & Brier) Are they essential? Chief Tomberg responded Fire Marshal responsibilities in the unincorporated area of Snohomish County were the responsibility of the Snohomish County Fire Marshal's office, not Fire District 1. If Fire District 1 did not serve cities under contracts for service such as Brier and Mountlake Terrace, it would not have a Fire Marshal. Fire District I has a Fire Marshal to serve Mountlake Terrace and Brier because like Edmonds, they were served by a Fire Marshal before they joined the District and cities require fire marshal services. Mountlake Terrace and Brier pay Fire District 1 for fire marshal services. In the Fire District 1 /Edmonds Interlocal Agreement, Edmonds pays via the contract for a 3/4 time Fire Marshal and a full -time Fire Inspector. Currently the City pays for two full -time positions. 3. Contract — (See attached numbers) Are the numbers shown for the "Contract" projections for "Option 4" the ones which will be billed to Edmonds? The attached numbers were taken from a page given me entitled, "Fire District I Contract Proposal — City Operational Savings ", lines named Fire Budget and Fire Contract. Finance Director Lorenzo Hines responded the amounts listed in the spreadsheet Option 1 v Option 4 are the amounts that are projected to be the contract payment to Fire District 1 that will be billed to Edmonds. 4. Uneven growth rates. The attached numbers grow at different growth rates (see attachment). I had thought the expense growth rates would be the same over the years. Why are they different? Mr. Hines responded the analysis compared 2007 actuals to the 2008 budget. With regard to expense growth rates being the same over the years, Mr. Hines responded growth rates would be generally the same but rarely were they the same year -to -year. For example growth in the Edmonds Fire Department budget was projected to be 3.15% in 2011, 3.87% in 2012, and 3.93% in 2013. Councilmember Bernheim commented lower growth rates were projected under the proposed contract than for the Edmonds Fire Department. Mr. Hines answered the contract was based on salaries, overtime and benefits; the City's Fire Department budget was composed of many other variables in addition to labor such as uniforms, protective clothing, supplies, small equipment, professional Edmonds City Council Approved Minutes November 2, 2009 Page 4 CORRECTED 12 -15 -09 services, communication, travel, rental and lease, rental and maintenance, etc. Councilmember Bernheim pointed out in the proposed contract both overhead and equipment were pegged to labor increases per Exhibit C. Mr. Hines pointed out another variable was Fire District 1's actions to keep the price down; Fire District 1 may be artificially reducing the price to get the City's business. 5. Annexation — What are the criteria . for establishing and changes in billing if annexations occur? I understand Edmonds has had over 60 and there is one underway now. Chief Tomberg responded annexations were addressed in Section 4.6 on page 5 of the Interlocal Agreement. Mr. Snyder explained if property was annexed by the City, the cost of the contract would be recalculated based on the additional population. 6 Deannexation — How will reductions be treated? Chief Tomberg was unclear how deannexation would occur. 7. Technology — Every 5 years it's a new world in Technology. This can be a savings and /or expensive. Today Edmonds deals with it in consultation with other fire departments How will this be handled in future? Chief Tomberg answered technology would continue to be addressed with other Fire Departments and in Snohomish County as it is today. The Fire Department participates in many coordinated technology efforts including the SnoCom CAD system, the records management system, patient care reporting, radio purchases, etc. via SERS, SnoCom and ESCA. Mayor Haakenson opened the public participation portion of the public hearing. Al Rutledge, Edmonds, commented most citizens felt this should be decided via a public vote. He expressed concern with the participation of some Councilmembers, questioning whether they were parties of interest. He commented on an area that was interested in annexing to Mountlake Terrace. Hearing no further comment, Mayor Haakenson closed the public hearing. 5. CITY COUNCIL DISCUSSION AND POTENTIAL ACTION ON THE FIRE DISTRICT 1 CONTRACT OPTION 4. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PETERSON, FOR APPROVAL OF OPTION 4 (CONTRACTING FOR SERVICES WITH FIRE DISTRICT 1, SELLING APPARATUS [ENGINES, AID CARS, AND EQUIPMENT], AND KEEPING FIRE STATIONS, LAND AND TRANSPORT FEES, AND SIGNING THE CONTRACT WITH FIRE DISTRICT 1. Councilmember Orvis commented the initial proposal was to sell the land and via discussion the Council . decided although contracting with Fire District 1 was a good idea, selling the land was not. He clarified under Option 4 the City retained the land and fire stations, sold the apparatus and contracted for fire service personnel with Fire District 1. He was satisfied the service levels were guaranteed because deployment was identified in the contract and in addition to meeting the City's service requirements, fire stations must continue to be staffed in the manner they are today. The savings in 2010 will be over $900,000. He was impressed with the improvements in service such as fewer holes in service due to fire training, overhead that was service- related rather than administrative - related, the availability of CPR classes and car seat checks, and the availability of a public liaison officer. With regard to increasing costs, he felt the proposed contract had more restrictions on cost control than the City's own Fire Department. He summarized the cost of fire service would increase regardless of whether the City had its own Fire Department or contracted with Fire District 1. Edmonds City Council Approved Minutes November 2, 2009 Page 5 CORRECTED 12 -15 -09 Mayor Haakenson clarified the contract, if approved, would be effective January 1, 2010. Councilmember Peterson echoed Councilmember Orvis' comments, noting Edmonds was taking an important step in regionalization. Edmonds was part of a larger community with regard to public safety and other services. The contract would provide better service to the community and save the City money as well as allow the City to work more closely with neighboring cities and jurisdictions on important issues. Councilmember Olson's aid read a statement from Councilmember Olson that stated she was voting for Option 4 because it made the most sense after listening to all the experts. This seemed like a great opportunity for the City. Councilmember Wambolt commented he had been involved in the Fire District 1 discussions since they began in May including meetings with Fire District 1, City staff, the Firefighters Union as well as several . discussions and public hearings at the City Council. He also spent a considerable amount of time analyzing the numbers on his own. The questions he has raised since May have been satisfactorily answered. He expressed support for Option 4 for two primary reasons; first it will reduce the City's deficit over the next 7 year planning period by $10 million. Under Option 1 expenses will exceed revenues by $21.1 million over 7 years; under Option 4 expenses will exceed revenues by only $10.4 million or $10.7 million less. The City's budget will still be in deficit and a levy lid lift will be required in 2010. Second, service levels will be maintained and he believed gradually enhanced over the coming years because firefighters would be better trained and morale would improve. He pointed out the compound annual growth rate of expenses over the 7 year period under Option 1 was 4.08% versus 3.86% with Option 4. Council President Wilson commented he would support the motion. He commented the service level issue was not compelling enough; the primary increase was eliminating holes in service due to training. With regard to the financial benefit, he acknowledged the numbers pointed in a positive direction, noting the numbers had varied over the past several months and he was hopeful the recent numbers were accurate. The primary reason he supported the contract for service was to increase the morale of the Fire Department employees. This was also an opportunity to place fire service on stable footing; in the future any budgets cuts would be made to parks or police or a levy would be necessary. He concluded this was not his ideal situation; he preferred to consider either a Fire District or reverse annex into Fire District 1. He was hopeful the City did not regret this decision in 10 years. Councilmember Bernheim commented there had been a lot of questions asked and answered, it had been a great process and he was satisfied everyone was reaching a well- considered decision. He was confident the level of service for residents would remain the same, a top priority even above the morale of the Fire Department employees. With regard to regionalization, he was not convinced about the importance of regionalization; he felt the City had an obligation to provide fire and police services. He expressed concern that citizens lost complete voting power over the Fire District 1, a philosophical issue that had not been adequately addressed. The City's fire service was being turned over to a contractor and voters in the unincorporated areas of Snohomish County would elect Commissioners that would interpret the contract. Councilmember Bernheim acknowledged fire service cost a great deal and annual increases have been substantial. He pointed out much of the City's fiscal crisis was because tax income had not kept pace with the cost of providing fire service. He preferred to keep the fire service in -house and continue to manage it. He pointed out the firefighters union's primary reason for supporting the contract with Fire District 1 was to stabilize funding. He noted the contract pegs overhead, equipment maintenance and purchase of new equipment to labor costs which he feared would increase more than it would otherwise. Edmonds City Council Approved Minutes November 2, 2009 Page 6 CORRECTED 12 -15 -09 He expressed concern that Fire District 1 may be artificially holding the price down, comparing it to the FIOS offer of $29.95 for six months which obligated consumers without a guarantee regarding future prices. He feared the City would be in dire straits in 10 years, worrying how to pay for the fire service because the cost of the contract had increased. Councilmember Bernheim concluded this issue originated due to the fiscal crisis and as an alternative to the levy, not the need to improve the City's fire service. In his view the City was giving up control of its fire service, a fundamental city responsibility to a Fire District whose Commissioners were elected by voters outside the City without any guarantee of price control and it was only a stop gap measure. VOTE ON THE MOTION: MOTION CARRIED (6 -1), COUNCILMEMBER BERNHEIM VOTING NO. Tim Hoover, President, Edmonds Firefighters Local 1828, applauded the Council for vetting this issue well. He commented regionalizing fire service had been 20 years in the making, an effort that had been halted at the political level in the past. He commended the Council for putting politics aside, considering the issue, doing their due diligence and reaching a decision. To the Edmonds citizens, Mr. Hoover commented they did not take the Fire Department's 105 year history lighting. He expressed the Fire Department's appreciation for the citizens' support over those 105 years. He thanked everyone who provided public comment and looked forward to serving the community as a regional Fire Department for the next 105 years. 6. REPORT TO WASHINGTON CONSORTIUM REGARDING THE TRANSFER OF CONTROL OF VERIZON NORTHWEST INC. TO FRONTIER COMMUNICATION CORPORATION — WORKSHOP. Community Services /Economic Development Director Stephen Clifton explained tonight's meeting was one of two scheduled meetings regarding the transfer of control from Verizon Northwest Inc. to Frontier Communications Corporation. Tonight's public workshop was an opportunity for the Council to ask questions and learn about the proposed franchise transfer. On November 2 the public will have an opportunity to speak and the City Council will have an opportunity to take action. He introduced Verizon representatives Raymond Deed, Doug Steading, and Milt Gomad and Frontier Communications Chairman Ann. Burr. Mr. Clifton reviewed the history of the transfer: • In August, 2008 - City authorized and granted a Franchise Agreement to Verizon Northwest Inc. • May 13, 2009 - Verizon announced plans to divest its local wireline communications system to Frontier Communications Corporation. • May 19, 2009 - City received a Request for Transfer of Control (Verizon to Frontier). • Set in motion certain federal requirements and deadlines: • City (Franchise Authority) has 30 days in which to review Form 394 to determine whether all necessary information has been provided and is complete. • City Council has 120 days to take action on request. • Determine if the Transferee is legally, technically, and financially capable to operate a Franchise. Next he reviewed transfer request actions: • June, 2009 — A Multi- Jurisdictional Consortium was formed. o Share in legal and technical expertise to analyze transfer of the franchise. Edmonds City Council Approved Minutes November 2, 2009 Page 7 CORRECTED 12 -15 -09 o Edmonds City Council authorized contracting with River Oaks Communications Corporation and Ogden Murphy Wallace. The Council packet contains an August 21, 2009 report from Ogden Murphy Wallace and a template transfer ordinance. • Consortium requested and reviewed extensive legal, technical and financial information from Verizon Northwest and Frontier Communications Corporation. • Due to the amount of information under review, the decision deadline was extended to November 30, 2009. Under the transfer: • Frontier Communications Corporation will acquire Verizon NW Inc. • Control of Cable Franchisee will transfer from Verizon Communications to Frontier Communications Corporation. • Completion of the transaction is expected in April 2010. • The local jurisdiction's request to transfer control of cable franchise is one piece of the transaction. • Waiting authorization from local, state and federal regulatory authorities. He provided facts related to financing of the transaction: • Total Cost of Transactions $8.6 billion. • Financed through transfer of stock and debt issuance. • Sell unsecured notes, less than 9.5% interest. • Transfer does not include increasing cable rates to the customers; subject to future changes based on market conditions. Regarding the Commitment to Implement Terms of Existing Franchise Agreement, Mr. Clifton explained franchise commitments and obligations will be met by Frontier Communications Corporation. Calculation of Gross Revenues will remain the same. With regard to build out requirements, the installation of fiber within the City is more than 85% complete. Government and Education channels will remain (Edmonds Government Channel 39). Mr. Clifton reviewed Frontier's commitment to customer service: • Will appoint multiple General Managers to Washington State. • Empowers local supervisors and general managers with authority to resolve issues to the customer's satisfaction. • Maintain Call and Customer Dispatch Center in Everett. • Retain most Verizon customer service personnel. • Hire additional personnel to handle customer service. With regard to technical capabilities: • Signals will be transported from Florida to Illinois. • A transport network will be launched from Illinois to Indiana. • From Indiana the signal will be transported to Washington and Oregon. • Lease existing transport capacity from third party providers. • Configure network - install off the shelf equipment to transport video. • Retain most of Verizon Personnel. Unknowns include the following: • Programming: Process of securing content agreements is still being completed. • Although Frontier is determined to make this transaction successful, there are risks: Edmonds City Council Approved Minutes November 2, 2009 Page 8 CORRECTED 12 -15 -09 • Transport and content agreements are not for the length of franchise agreement. • Frontier has not secured financing. • Frontier Communications shareholders approve acquisition of Verizon Wireline operations in 1.4 states. • Could scale back business or cease business. • No guarantees. • Frontier does not currently operate a cable system. The consortium and the City Attorney's Office recommends the following: • Consent be given to the transfer of control of Verizon Northwest Inc. to Frontier subject to a mutually acceptable Transfer Resolution or Ordinance. • Frontier's and Verizon Northwest Inc.'s responsibility to make this transfer of control and acquisition successful from a business, technical, financial and customer standpoint. • By consenting to the transfer of control, local governments are not opining as to whether Frontier will ultimately be successful from a financial, technical or business standpoint. Ann Burr, Chairman, Frontier Communications, was pleased the City was considering Frontier as its new cable TV, telephone, data and internet provider. She explained Frontier was in 24 states and had 2.5 million customers. Frontier is a mid -sized carrier that serves small and mid -sized cities, many fast growing, sophisticated cities that are providing advanced technology solutions. Frontier places a high . emphasis on customer service; general managers live and work in those markets and are involved in the community such as participating in the Chamber of Commerce and Rotary. Frontier prides itself on first call resolution and customer first policies. Ms. Burr advised Frontier was acquiring the rights to programming content and building their video networks to complete the long haul transport. They have resolved all agreements between Verizon and Frontier for distribution and transport of content. They have an employee- matters agreement with employees to ensure job protection. They plan to bring employees and systems across to Frontier to provide business continuity to customers. Frontier's shareholders approved the merger agreement last week. Councilmember Wambolt expressed concern that the implementation of FIOS in Edmonds had come to a halt or slowed due to the announcement. He was concerned that FIOS service was not available in Edmonds -area condominiums. With regard to Frontier's emphasis on customer service, he pointed out currently calls made to Verizon reached a representative in India. If they were unable to resolve an internet service problem, it was referred to a representative in Canada. If they were unable to resolve the problem, it was referred to a representative in Everett. He asked whether Frontier planned to utilize a similar system. Ms. Burr answered implementation of FIOS had been moving forward diligently; Frontier was willing to assume all the obligations of the franchise including all build out requirements. Councilmember Wambolt relayed a Verizon representative informed him that implementation of FIOS had been delayed until the second quarter of 2010. Ms. Burr offered to research. Raymond Deed, Franchise Manager, Verizon, commented multi - dwelling unit buildings were different than single family homes and they must work with building managers for access, etc. In this case, they were experiencing difficulty reaching the building manager to schedule the work. Councilmember Wambolt disagreed, advising he was the building manager in his condominium. Mr. Deed offered to work with Councilmember Wambolt. With regard to customer service, Ms. Burr advised they had multiple call centers and would be transferring the customer service representatives at the Everett Call Center who are currently servicing Edmonds City Council Approved Minutes November 2, 2009 Page 9 CORRECTED 12 -15 -09 FIGS and Verizon customers to Frontier. They do not have an arrangement to handle calls outside the United States. Although a call center may not be in the same city, the same group of representatives served each city. She assured first call resolution was their objective. Councilmember Wambolt was pleased with her response, noting that was the way the company he retired from handled customer service. Councilmember Bemheim asked whether Frontier supported allowing consumers the option to purchase only the television stations they wanted and not require them to pay for stations they did not want. Ms. Burr answered the more people that watched the channels resulted in a lower rate. Rather than offer al a carte, Frontier effectively prices bundles in order to allow customers to customize their choices. Councilmember Bernheim commented this required customers to pay for channels they did not want. Ms. Burr responded they try to provide something for everyone. Mayor Haakenson urged the Verizon representatives to hasten the development of anti -virus software that worked with Windows 7. He was told that software will not be available until November 18 or 19. He advised second and final reading would be November 17. Mr. Snyder reported River Oakes Communications performed the analysis and review. He invited the Council to provide staff with any questions with regard to the legal, technical and financial capability of the transferee to fulfill the terms of the franchise. 7. AUDIENCE COMMENTS Al Rutledge, Edmonds, commented on the City's budget and expressed concern that this Thursday's Hearing Examiner meeting had been cancelled. Mr. Snyder clarified the meeting had been postponed. He invited Mr. Rutledge to speak with him after the Council meeting. Mauri Moore, Edmonds, advised several of the audience members were here to speak about an easement attached to an alley vacation. She explained the biggest issue was ensuring the public had an opportunity to speak. In this case, the public was not allowed to testify regarding the easement. The Council held a public hearing on the alley vacation and attached a construction easement to benefit a private party over the public good. A citizen asked for a public hearing via emailing the Council but received no response because the Council was told by the City Attorney they should not talk to the citizen. She remarked the citizen had no legal action against they City, thus the Council was able to talk to him. The citizen was looking for due process and an opportunity for the public to speak to the Council about the easement. She commented although the Council may have the right not to speak to the citizen, it was not the right thing to do. She was ashamed of the Council for not being open minded and shocked that the Council had not allowed the public an opportunity to speak. Cam Gillis, Edmonds, a friend of Ken Reidy, explained he was a quality individual and an asset to the community. He expressed concern with Mr. Reidy's experience and that he was not allowed a fair hearing. He agreed with Ms. Moore's comments, that the public should be provided an opportunity to speak to the Council. He urged the Council to listen to Mr. Reidy's and the neighborhood's concerns. Anne (& Mike) Meiers, Edmonds, commented Mr. Reidy's property was very close to their children's school and their friends were his neighbors. She was surprised that the average citizen was getting stepped on by the City. They were present to show their support for Mr. Reidy. Ken Kettel, Edmonds, a friend of Ken Reidy, agreed the City had received bad advice from their City Attorney. He expressed his support of Mr. Reidy and his interest in a due process hearing. Edmonds City Council Approved Minutes November 2, 2009 Page 10 CORRECTED 12 -15 -09 Jean Marty, Edmonds, voiced their support for the Reidy's and looked forward to their having a hearing and the Council's response to his request. Dave Marty, Edmonds, agreed with his wife's comments, commenting they were perplexed why the Council would not consider Mr. Reidy's concerns and have a public discussion. Ronald Quinton, Edmonds, a friend of the Reidy family, questioned why due process was not being followed. He anticipated if the City had an issue with the Reidy's there would have been due process. He was concerned the Reidy's were not allowed to voice their concerns and that the City Attorney's voice was held in higher regard than an average citizen. Robert (& Judy) Custello, Edmonds, asked why the City Attorney gave advice regarding the easement through Mr. Reidy's property that made Mr. Reidy feel he did not receive due process. Noting he had heard that the Council was 6 -1 against hearing Mr. Reidy's concerns, he asked the Councilmember who was in favor to explain why. He voiced his support for the Reidy's. Chris Johnson, Edmonds, voiced his support for his friend and neighbor Ken Reidy. He acknowledged being biased, noting his bias was not necessarily for Mr. Reidy but for the process. He was concerned that Mr. Reidy was at the whimsy of the Council. He questioned Mr. Snyder's expertise to provide advice regarding an easement. Maria Mallory, Edmonds, a neighbor of Mr. Reidy, commented the most important issue was for the Council to do the right thing. She urged the Council to consider this as if it was their family, commenting on the expense and stress that the City and Reidy's have experienced. She urged the Council to listen to Mr. Reidy's concerns and reach the right conclusion. Vivian Olson, Edmonds, commented she had two major issues, 1) concern with a citizen sending a request to the Council and receiving no response and the City Attorney advising the Council not to discuss the matter, and 2) within an hour of Mr. Reidy's request, the attorney representing the other side had the information. She questioned whether the problem was Councilmember Plunkett elevating the issue to the City Attorney or the City Attorney providing the information to the opposing side while advising Councilmembers not to respond to Mr. Reidy. She suggested the Council consider whether they were receiving bad advice from the City Attorney on this and other issues. Lisa Barhoum, Edmonds, spoke in support of due process and urged the Council to hear the Reidy's case. Richard McKay, Edmonds, expressed his support of Mr. Reidy. Vera Reidy, Edmonds, expressed disappointment in the City, Mayor Haakenson, Mr. Snyder and the City Council. She appreciated Council President Wilson taking the time to speak to them this evening. She explained her husband had sent countless emails to the Council. She expressed concern with Mr. Snyder's curt replies to her husband that this was a legal issue. She was concerned with the amount of money they had spent on errors the City has made were only resolved by their attorney speaking with Mr. Snyder. Although she preferred to settle this outside the court, she felt the City was pushing them toward court. She asked the Council to do the right thing and to act with integrity. Joan Bloom, Edmonds, referred to the exchange between Mayor Haakenson and Dr. Senderoff and Mayor Haakenson's comment that citizens elected a Mayor and Council because life gets in the way. She recalled speaking to the Council four years ago regarding a wetland near her home that was subsequently filled despite the Critical Areas Ordinance that governed the land, an issue similar to the Reidy's. She Edmonds City Council Approved Minutes November 2, 2009 Page 11 CORRECTED 12 -15 -09 pointed out the Council had not enforced the code for the past four years which required citizens to watchdog the property near their homes. She questioned why the property owner was allowed to vest under the old Critical Areas Ordinance, a huge error that should never have happened. She recalled Councilmember Plunkett suggested the construction easement during Council discussion, pointing out it was not on the agenda and the public was provided no notice. She requested an accounting regarding the amount this short plat application has cost the City including how much had been paid to Ogden Murphy Wallace. Ken Reidy, Edmonds, commented he had approached the City with a willingness to resolve the problem and has never sued the City and hoped that would not be necessary. He explained this situation began with an improper delay in a Critical Areas Ordinance of 79 days which opened the door for an individual to invest under an old law. He commented Mayor Haakenson's job was to ensure the City's laws and ordinances were enforced and Mr. Snyder's job was to advise the Council regarding the legal status of their decisions. With regard to the temporary construction easement over his property, he explained Mr. Snyder interceded in a Council meeting and recommended a temporary construction easement for a private party, an action that was not on the agenda, was outside the role of the City Attorney to advise the Council regarding the legal status of their decisions and violated due process. He enumerated the errors that were made, 1) no public notice was provided regarding the temporary construction easement which did not allow his neighbors or him to prepare oral or written comment, 2) no public hearing was held to discuss the appropriateness of a temporary construction easement, and 3) Chapter 27 was not enforced. He urged the Council to hold a public hearing at a City Council meeting to allow his neighbors and him to discuss the legality of reserving a temporary construction easement over private property and the lack of public benefit of that easement. He urged the Council to work with him to avoid further expense to Edmonds taxpayers. George Murray, Edmonds, requested his questions and charts regarding Fire District 1 be included in the minutes. Roger Hertrich, Edmonds, commented on the number of people speaking to the Council regarding the injustice that had occurred. He relayed that he had reached the same conclusion after speaking with Mr. Reidy; the Council needed to have an opportunity to hear his concerns. He urged the Council to listen to the citizens as much as they listened to the City Attorney. Next, he referred to a DVD of the October 13 meeting that shows Mayor Haakenson assaulting him at the podium. Councilmember Plunkett asked Mr. Custello when the 6 -1 vote was taken. Mr. Custello answered he overheard that it had occurred at a Council meeting. He remarked a true injustice had occurred and the rules and laws had been broken. Councilmember Plunkett advised the minutes reflect that the Council's vote on the vacation and the construction easement was unanimous. Council President Wilson explained he spoke with Mr. Reidy and his friends and neighbors during tonight's meeting and explained to them that the Council held an Executive Session to discuss this matter and that he had agreed to remove it from the agenda. He had explained to them that if the Council had voted to remove it from the agenda, he anticipated the vote would be 6 -1 in favor of removing it. Council President Wilson explained because this issue spanned 4 years and the paperwork was voluminous, he asked staff for a recommendation. Staff urged caution in speaking to Mr. Reidy as there may be a time when the Council must act in a quasi judicial capacity on this matter. Any Councilmember who has spoken with Mr. Reidy or Mr. Thuesen would be required to withdraw from the deliberations. Council President Wilson explained he met with Mr. Reidy last week; the information he provided was very compelling and it seemed there may be opportunity for Council discussion. He discussed this with Mr. Snyder, noting he had a great deal of respect for Mr. Snyder's advice. Mr. Snyder explained he asked Edmonds City Council Approved Minutes November 2, 2009 Page 12 CORRECTED 12 -15 -09 an outside law firm to provide an independent perspective. The Council had an opportunity tonight during Executive Session to review pending and threatened litigation regarding this matter. He felt there were some things in this matter that warranted Council review. Acknowledging the voluminous amounts of paper regarding the matter, he was not certain how that could be accomplished but was willing to spend the time to determine how a partial political decision could be reached on an issue that has become a 4 -year legal problem. He pointed out to take that action required the agreement of at least four Councilmembers. Councilmember Bembeim pointed out any concerns should have been appealed within a certain timeframe of the Council's action. However, he agreed the easement arose at the last minute and Mr. Reidy had voiced his objection to the construction easement. He recalled asking Development Services Director Duane Bowman whether adoption of a construction easement would be detrimental to any property owner to which Mr. Bowman replied no. He was sympathetic with the Reidy's situation, noting incorrect information has caused a great of problems in the City and wasted a great deal of money including Bauer v. Edmonds that cost his neighbor and him $20,000; the pool study that included consideration of the old Woodway High School, a site that was never an option; the delay in implementing the Critical Areas Ordinance; the 555 Main Street debacle in the BD1 zone; lack of enforcement of the Street Tree Plan; violation of the height ordinance by Rob Michel; the Burnstead lawsuit, and the Park Comprehensive Plan lawsuit. Councilmember Bernheim recalled he proposed adoption of the ordinance without the construction easement because testimony indicated the easement was unnecessary because Mr. Thuesen had access to his property. He regretted that he went along with adoption of the temporary easement. However, he did not feel the remedy was to request reconsideration a year later. To those who said the Council should be ashamed for not responding to Mr. Reidy, Councilmember Wambolt advised he prided himself on responding to all emails he received. If it was an email directed to all Councilmembers, he would have responded. If it was sent to one Councilmember and cc'd to him, he would not have responded. He requested Mr. Reidy provide the emails to which he did not respond. 8. CITY OF EDMONDS WEBSITE - CITY COUNCIL WEB PAGES. Community Services /Economic Development Director Stephen Clifton explained over the last several months, City staff had been updating the City's website and web pages in an attempt to provide more effective and useful information to website visitors. The City does not employ a webmaster but utilizes the services of a contractor to assist with website maintenance. Existing staff are responsible for updating web pages and format; website development is ever evolving and is a product of numerous contributions by individuals throughout the City. Increasing the accessibility of information contained on the City's website is a primary goal of City administration. At the request of Council President Wilson, City staff focused their efforts on City Council web pages. Visitors can now find an updated City Council web page and information regarding the 2009 Sustainability Agenda, meeting schedule, general contact information and associated web links to individual Councilmember web pages. He referred to City Attorney Scott Snyder's September 3, 2009 memorandum to the City Council (attachment 2 in the Council packet) prepared in response to the numerous emails regarding the City Council web pages and the Council's interest in reviewing the use of Council biographical materials. According to Mr. Snyder's memorandum, the Council has several options regarding their web pages including, 1) only listing names, dates, places and basic factual biographical information with no statements of philosophy, references to pending legislative issues; 2) permitting each Councilmember to state his /her general philosophy and addressing pending issues in the Edmonds community; and/or 3) a limited forum approach for Council consideration - placing Edmonds City Council Approved Minutes November 2, 2009 Page 13 CORRECTED 12 -15 -09 photographs and voters pamphlet information on the City's website to provide the public information related to candidates for public office and other issues on the Edmonds ballot. In a September 22, 2009 letter, the Washington State Public Disclosure Commission (PDC) stated RCW 42.17.130 does not prohibit elected officials from communicating with the public concerning the issues they are working on or their goals while in office. The letter stated it was important that this information not be used to campaign for reelection and it would be prudent for the City to establish standards for biography pages. The City does not currently have policies related to the content of City Councilmember web pages. City staff contacted several cities to request their policies; the Council packet includes a sampling of web pages from Bellevue, Kent, Federal Way, Everett, Kirkland, Lynnwood, Mukilteo, Redmond, Renton and Shoreline. Mr. Clifton briefly reviewed Bellevue's content policy that states all content on the City's website will be sponsored or cosponsored by the City or directly linked to the City's policy objectives or departmental activities. Content will accurately reflect City Council and management policy decisions and political advocacy by individuals or interest groups, including current or former elected officials is not appropriate material. He advised Edmonds had link policies for its website but no policies regarding City Councilmember web pages. With regard to links, Bellevue does not provide links to candidate sites, sites advocating positions on ballot propositions or individual personal home pages. With regard to fair campaign practices, Bellevue's policy states to avoid the appearance of endorsement of political content, links will not be made to sites associated with, sponsored by or serve a candidate for elected office, any political party or organization supporting or seeking to impeach a candidate for elected office or any ballot proposal. Bellevue does allow links to factual information prepared by the City or other public organization such as King County's Voters Guide, Municipal League, League of Women Voters, etc. Shoreline's link policies are similar to Bellevue's. With regard to the City Council web pages, staff compared existing City Councilmember web pages with the ten cities. Based on staff s review, Edmonds Councilmember web pages align most closely with Option 1 - names, dates, committee assignments, and basic factual biographical information with limited philosophical narrative or reference to pending legislative issues. Eight of the ten cities reviewed also closely align with Option 1. Renton and Lynnwood include statements that could be interpreted to relate to Options 1 and 2. Renton's Councilmember web pages include links to newspaper articles they have written in the Renton Reporter, information that could be considered subjective and open to interpretation. None of the ten cities provided information related to Option 3, political campaign brochures. Edmonds website linkage policies were discussed at the 2002 retreat. Staff is in the process of updating the City's website and consideration is being given to the formation of a Website Standards Coordinating Committee to maintain and monitor information on the City's website. Staff plans to address this issue further when the committee is formed. Until a Website Standards Coordinating Committee is formed to further examine policies for Council web pages, staff proposes the following interim measures, utilizing Bellevue's policy that content will accurately reflect City Council policy positions, utilizing the City's existing link policies, and utilizing Option 1 in Mr. Snyder's memorandum. Information could include Council name, position number and contact information, year elected, number of terms served, current Council committees /appointments, former Council assignments, regional representations, community service, employment, education and factual biographical information. If the council wishes to expand on Option 1, Option 2 would include the above information in addition to general Couneilmembers goals. Mr. Clifton briefly reviewed Bellevue's general Council web page and a sampling of Councilmembers web pages. Edmonds City Council Approved Minutes November 2, 2009 Page 14 CORRECTED 12 -15 -09 Councilmember Orvis asked whether Option 3, providing a link to all candidates, was a possibility. Mr. Snyder answered the reason cities' standards were so strict was to avoid their websites becoming an open public forum where the City had no control. In view of Councilmember Orvis' interest in an equal playing field for candidates and seated Councilmembers, one way to accomplish that would be to adopt a source such as Municipal League or League of Women Voters pamphlet. Another reason cities limit the content is for budget reasons. Use of a website as a tool for Councilmembers to hear from and communicate with their constituents was appropriate; the issue was having rules that allow the City to control maintenance costs. Councilmember Orvis commented the reason he maintained a private website was the ability to say whatever he wanted on that site. Mr. Clifton commented the information contained on Bellevue, Federal Way and Everett Councilmember web pages was in a consistent format which would avoid challenges to the content. Council President Wilson suggested the Council direct staff to develop policies similar to Option 2. He wanted the web page to be a useful a tool for Councilmembers to communicate with the public about Council business. He did not support links to personal sites that may contain campaign materials and suggested only links related to Council business such as the Marine Research group that made a presentation to the Council early this year and to his Edmonds Beacon columns. Councilmember Peterson commented greater limitations were imposed on State Legislators' web pages 6 months prior to elections. Mr. Clifton stated staff did not research the State Legislator's web pages. The PDC recommended the City adopt policies. Bellevue and Federal Way's web pages adhered to the PDC regulations. Councilmember Peterson expressed support for Option 2 which would allow Councilmembers to use their web pages as a communication tool. He found it appropriate for the public to have an idea what a Councilmember planned to do in the future. He suggested a more limited content 6 month prior to an election or after the filing deadline. He summarized the Council's web pages were an important tool for communicating with the public. Councilmember Plunkett commented if materials should not be on the web page after the filing deadline, they likely were not appropriate for the web page at all. He questioned who would act as the gatekeeper with regard to links and pointed out editorials were not necessarily factual. Mr. Snyder referred to "not right" versus "not legal." The PDC's position was the communications on the web pages were legal under the campaign financing statute but recommended the Council adopt rules. There was nothing wrong with Councilmembers expressing their opinions as well as facts. To the perception that a seated Councilmember had an unfair advantage during the election season, he emphasized it was impossible to separate the Council's actions from campaign issues. Mr. Clifton explained he currently served as the gatekeeper. The reason staff supported Option 1 was to avoid his reviewing every article or editorial to ensure it was not campaign related. Councilmember Orvis commented if the Council was not interested in Option 3, he preferred Option 1. He did not support placing Mr. Clifton in the position of determining what was political. He suggested Councilmembers who wanted the public to have access to their articles develop their own website. Council President Wilson suggested the PDC exists to determine whether material on City web pages was appropriate. The Council President could be responsible for contacting a Councilmember regarding inappropriate material on a web page. He agreed with Councilmember Peterson's suggestion to limit content for Councilmembers running for office. Edmonds City Council Approved Minutes November 2, 2009 Page 15 CORRECTED 12 -15 -09 Councilmember Bernheim suggested the web page content be limited by law rather than the City developing its own policies and any complaints could be resolved by the PDC. He wanted the freedom to provide links to materials related to Council business. Councilmember Wambolt commented that including a great deal of information on Councilmembers web pages would require a great deal of administration. He inquired how many hits Councilmember web pages receive. Mr. Clifton explained the reason staff was proposing restrictions on content was the flack the City received recently regarding Councilmember web pages including a PDC complaint that one contained campaign materials. He commented it would be difficult to monitor the content of Councilmember web pages. Councilmember Bernheim suggested complaints be directed to the Council President or the PDC. Mr. Snyder suggested obtaining a quote from the City's webmaster regarding the cost of administering an open forum. Council President Wilson suggested the Office of the Mayor be the gatekeeper, questions /concerns be directed to the Council. President and Senior Executive Council Assistant Jana Spellman could manage the content of Council web pages. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO ASK STAFF TO BRING BACK POLICIES FOR AN OPTION 2+ THAT ALLOWS FOR AS WIDE A DISTRIBUTION OF INFORMATION AS POSSIBLE WITHOUT ANY CAMPAIGN OR PERSONAL MATERIAL OR LINKS. Councilmember Plunkett commented an important consideration was the cost. Councilmember Bernheim questioned why a City policy was necessary and why the existing PDC laws were not sufficient. He preferred to rely on the responsibility of individual Councilmembers. Council President Wilson agreed in general, noting to whole questions /concerns are directed should be determined. MOTION CARRIED (5 -2), COUNCILMEMBERS WAMBOLT AND ORVIS OPPOSED. 9. REVIEW OF CONSTRUCTION EASEMENT RESERVED BY ORDINANCE NO. 3729. THE EASEMENT INVOLVES THE VACATED RIGHT OF WAY OF A PLATTED BUT UNBUILT PUBLIC ALLEY LYING BETWEEN THE 700 BLOCK OF 8TH AVE. N AND 9TH AVE. N AND PARALLEL TO AND NORTH OF DALEY STREET. THE RESERVED CONSTRUCTION EASEMENT IS FOR THE INSTALLATION OF A DRIVEWAY AND RETAINING WALL ON PROPERTY LYING NORTH OF THE ALLEY AND EAST OF 8TH AVE. N. This item was removed from the agenda via motion under Agenda Item 1. 10. MAYOR'S COMMENTS Mayor Haakenson reported Development Services began accepting online single family plumbing and mechanical permits, single family reroofing permits and critical area permits today. All the contractors in the City have been notified of the availability of online permits. Mayor Haakenson wished good luck to all the candidates in tomorrow's election. 11. COUNCIL COMMENTS Council President Wilson asked whether the Council wanted to schedule a meeting on November 24. City Clerk Sandy Chase advised Wednesday, November 25 was a furlough day and the Thanksgiving Edmonds City Council Approved Minutes November 2, 2009 Page 16 CORRECTED 12 -15 -09 Holiday was November 26 and 27. It was the consensus of the Council to cancel the November 24 Council meeting. Councilmember Wambolt expressed concern that no progress was being on the sidewalks on Dayton. He was also concerned with the construction disarray on 212`h. He anticipated the contractors had too many projects underway. Mayor Haakenson offered to confer with the City Engineer. Councilmember Bernheim announced Rick Steves and the ACLU will have a public conversation about potential reforms in marijuana laws on November 16 at the Edmonds Center for the Arts. He urged the public to attend, noting enforcement of marijuana laws was very expensive for the City and State. 12. ADJOURN With no further business, the Council meeting was adjourned at 10:08 p.m. Edmonds City Council Approved Minutes November 2, 2009 Page 17