HomeMy WebLinkAbout5233Contract Number: 5233
Vendor: COALITION OF GOVERNMENTAL ENTITIES
Subject: ILA -Legal Services for NPDES Phase II permits
Department: Legal
File Class: LEG 12 -1
Begin Date: 8/13/2012
End Date:
Review Date:
Vault Date:
Comments: Original hard copy file is located in Legal
INTERLOCAL AGREEMENT BETWEEN THE CITIES OF AUBURN, BAINBRIDGE
ISLAND, BELLEVUE, BOTHELL, BREMERTON, BURLINGTON, CAMAS, DES MOINES,
EVERETT, FERNDALE, ISSAQUAH, KELSO, KENT, KIRKLAND, LONGVIEW,
LYNNWOOD, MOUNT VERNON, POULSBO, RENTON, SAMMAMISH, SEATAC,
SNOQUALMIE AND SUMNER AND COWLITZ COUNTY REGARDING LEGAL
SERVICES
THIS INTERLOCAL AGREEMENT ( "Agreement ") is entered into between the Cities
of Auburn, Bainbridge Island, Bellevue, Bothell, Bremerton, Burlington, Camas, Des
Moines, Everett, Ferndale, Issaquah, Kelso, Kent, Longview, Lynnwood, Mount Vernon,
Poulsbo, Renton, Sammamish, SeaTac, Snoqualmie, Sumner and Cowlitz County and any
other Phase II Permittees that might join this Coalition of Governmental Entities (collectively,
"Coalition ").
RECITALS
1. The members of the Coalition are public agencies as defined by Ch. 39.34 of the
Revised Code of Washington, and may enter into interlocal agreements on the basis of
mutual advantage to provide services and facilities in the manner and pursuant to forms of
governmental organization that will accord best with geographic, economic, population, and
other factors influencing the needs and development of local communities.
2. The Phase II National Pollutant Discharge Elimination System ( NPDES) Permit is
required under provisions of the Federal Clean Water Act and requires members of the
Coalition in Washington to develop and maintain storm water programs.. The Department of
Ecology (DOE) has adopted standards (DOE Standards) purportedly under the NPDES
Permit authority that may impose costly burdens on landowners, including members of the
Coalition and may also cause costly legal challenges to members of the Coalition as a result
of enforcing DOE Standards.
3. The potential impact of the DOE Standards on members of the Coalition and
property owners is so significant and far - reaching, members of the Coalition are joining
together to explore all legal and other avenues available to challenge the DOE Standards
including but not limited to filing an appeal with the Pollution Control Hearings Board. The
appeal deadline is August 31, 2012, the effective date of the DOE Standards. Members of
the Coalition wish to retain outside counsel (Counsel) to represent the Coalition in said legal
challenge(s) and wish to collectively pay Counsel as further set forth below.
4. NOW THEREFORE, in consideration of the terms and provisions contained
herein, Coalition agrees as follows:
AGREEMENT
1. Purpose: It is the purpose of this Agreement to have the Coalition collectively pay
for the legal services of Foster Pepper PLLC, or other selected legal counsel(Legal
Services) to represent the Coalition's interests in any legal challenges to the NPDES Phase
II permits (Litigation).
2. Duration: This Agreement shall be effective August 13, 2012, irrespective of the
date members of the Coalition execute this Agreement. Unless terminated by any party in
accordance with Paragraph 5, Termination, the Agreement shall remain in full force and
effect through conclusion of the Legal Services either through settlement of the dispute with
the State of Washington, Pollution Control Hearings Board order, court order or other court
disposition by the highest court authorized to hear an appeal of this matter, and /or other
mutual resolution of the legal challenge or Legal Services as agreed to among members of
the Coalition as provided in Paragraph 5.2 of this Agreement.
3. Administration: Coalition shall enter into a Joint Prosecution Agreement for the
administration of the Legal Services and Litigation. Said Joint Prosecution Agreement shall
include, but need not be limited to, a confidentiality agreement, establishing a structure for
the administration and oversight of the Legal Services and Litigation that is efficient and
effective given the number of Coalition who are parties to this Agreement, including
oversight of the legal costs incurred pursuant to this Agreement and any other subjects
necessary or appropriate to the administration of the Legal Services and prosecution of the
Litigation. If this Agreement is effective prior to finalizing the Joint Prosecution Agreement,
Coalition authorize the City of Bellevue to be Lead Agency to do all things necessary and /or
appropriate to pursue the Litigation on behalf of Coalition including but not limited entering
into an agreement for Legal Services as contemplated herein.
4. Payment:
4.1 The Legal Services' fees and costs shall be shared by members of the
Coalition based upon the cost - sharing formula set forth in Exhibit "A" attached hereto and
incorporated by this reference. This obligation shall continue through conclusion of the
Legal Services as provided in Paragraph 2 above, unless a member of the Coalition
terminates its participation in this Agreement as provided in Paragraph 5. Members of the
Coalition hereby authorize said fees and costs up to $460,000. The amount of this
authorization may be increased administratively with the addition of new Coalition members
up to a total of $500,000. Provided, however, any increase in the cost of legal services that
would require additional payments from any Coalition members in excess of the obligations
set forth in Exhibit "A" shall require amendment of this Agreement unless an individual
Coalition member expressly volunteers to increase its share without the necessity of
amendment of this Interlocal Agreement.
4.2 The provider of Legal Services shall provide a monthly bill of its fees and
costs to Bellevue. Bellevue shall timely pay the bill on behalf of Coalition. Within 15 days of
approval of this Agreement, each member of the Coalition shall remit its proportionate share
of the fees and costs to the City of Bellevue. Bellevue shall place these funds into an
interest - bearing account, with any interest derived from these funds to be applied to the
costs of the provider of Legal Services. At the time of drafting of this Agreement 12
governmental entities have committed to joining this appeal, and based upon the cost—
sharing formula set forth in Exhibit "A" hereto, each member of the Coalition is obligated to
make payment of its proportionate share to the City of Bellevue. In the event Bellevue must
take legal action to collect any amount due from a member of the Coalition, Bellevue shall
be entitled to recover all costs for said action including reasonable attorney's fees.
4.3 In the event additional governmental entities join this Agreement, each
new member of the Coalition shall be obligated to payment to the City of Bellevue based
upon the cost - sharing formula set forth in Exhibit "A ".
4.4 While it is recognized that members of the Coalition may not be able to
sign this Agreement before August 31, 2012 it is agreed that the members will benefit from
the Legal Services provided herein. Therefore, it is presumed that a member of the
Coalition which enters into and signs this Agreement agrees to pay for Legal Services
performed from and after August 13, 2012, regardless of the date of signing. Adjustments
to amounts previously billed and received by Bellevue due.to later joining members of the
Coalition will be reconciled on a semi - annual basis. Attached hereto as Exhibit "B" is the
authorization for the Foster Pepper law firm to act as Special Counsel to Cowlitz County
executed by the Presiding Judge.
5. Termination:
5.1 Termination by Notice: Any participating member of the Coalition may
terminate its participation in this Agreement by providing at least sixty (60) days prior written
notice to all other participating members. The terminating member must pay the full share of
the Legal Services Fees and Costs due through the date of termination three months from
the date of Notice. Should it become necessary to amend this Agreement to increase the
authorized total amount of fees and costs set forth in Paragraph 4.1, or a member's
proportionate share pursuant to Paragraph 4.3, any member may terminate its participation
in this Agreement by providing written notice to all other participating members within 15
days of receiving written notice of the request to amend fees and costs. This termination
shall not affect the obligation of the terminating member to pay its full share of the currently
authorized Legal Services Fees and Costs, and shall not entitle the terminating member to
any refund of monies already paid to the Coalition. Except as provided in Paragraph 5.2,
the termination of a member's participation in this Agreement shall not result in the
termination of this Agreement with respect to other members of the Coalition.
5.2 Termination by Mutual Written Agreement. This Agreement may be
terminated at any time by mutual written agreement of a majority of the then participating
members of the Coalition. Members shall be obligated to pay for Legal Services incurred to
the date of Notice to the provider of Legal Services that its services are no longer needed
and any reasonable additional fees and costs necessary to conclude its Legal Services.
5.3 Distribution of Assets upon Termination. It is not anticipated that any
assets will be acquired as a result of participating in this Agreement. If, however, any
assets are acquired with joint funds of the Members of the Coalition, those assets will be
equally divided among the members at the asset's fair market value upon termination. The
value of the assets shall be determined by using commonly accepted methods of valuation.
Additionally, any funds remaining in the interest - bearing account following conclusion of all
Legal Services shall be divided among the members of the Coalition in amounts
proportionate to the members' contributions to the Agreement based upon the cost - sharing
formula contained in Exhibit "A and any other voluntary contributions made by that member.
6. Miscellaneous:
6.1 Amendments. Except as expressly provided herein, this Agreement may
only be amended by mutual written agreement of the members of the Coalition.
6.2 Severability. If any section of this Agreement is adjudicated to be invalid,
such action shall not affect the validity of any section not so adjudicated.
6.3 Interpretation. The legal presumption that an ambiguous term of this
Agreement should be interpreted against the party who prepared the Agreement shall not
apply.
6.4 Ownership of Property. Any property owned and used by Bellevue in
connection with this Agreement shall remain the property of Bellevue and any property
owned and used by any other participating member of the Coalition shall remain the
property of that member, unless otherwise specifically provided in this Agreement or its
amendment.
6.5 Notice. All communications regarding this Agreement will be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice shall become effective upon personal service or three (3)
business days after the date of mailing by registered or certified mail, and will be deemed
sufficiently given if sent to the addressee at the address stated in this Agreement or any
other address if later specified in writing. Except for the requirement of Notice as provided
in this Agreement, nothing herein shall be construed to prevent the members of the Coalition
from communicating among themselves by email, fax or other electronic means. Any
governmental agency not specifically named herein, that later joins in this Agreement, shall
give to all members of the Coalition then participating under this Agreement written notice of
the name and address of the person that can accept notices on behalf of such joining
governmental agency.
6.6 Counterparts. This Agreement may be entered into with any number of
counterparts which, taken collectively, will constitute one entire agreement.
6.7 Ratification and Confirmation. All acts taken prior to the effective date of
this Agreement that are consistent with the intent and purpose of the same are
hereby ratified and confirmed retroactive to August 13, 2012.
6.8 Dispute Resolution. Should any dispute arise among members of the
Coalition or between one or more members related to the interpretation, application or
administration of this Agreement, the disputing parties shall participate in a good faith
mediation effort to resolve their differences prior to bringing any legal action.
6.9 Compliance with RCW 39.34.040. Members of the Coalition entering into
this Agreement shall be responsible for ensuring that it is filed or publicly posted in
accordance with RCW 39.34.040.
IN WITNESS, the parties below execute this Agreement, which shall become
effective August , 2012.
AUBURN:
CITY OF AUBURN.
By:
BAINBRIDGE ISLAND:
CITY OF BAINBRIDGE ISLAND
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
EXHIBIT "A"
TO
INTERLOCAL AGREEMENT REGARDING LEGAL SERVICES
For purposes of pursuing an appeal of the 2013 -18 NPDES permit issued by the state Department of
Ecology on August 1, 2012, the following delineates the financial contributions to be made by members
of the Governmental Entities Coalition.
Entities with a population of up to 10,000: $10,000
Entities with a population between 10,001 and 30,000 $15,000
Entities with a population between 30,001 and 50,000 $20,000
Entities with a population above 50,000 $25,000
6.9 Compliance with RCW 39.34.040. Members of the Coalition entering into
this Agreement shall be responsible for ensuring that it is fled in accordance with RCW
39.34.040.
IN WITNESS, the parties below execute this Agreement, which shall become
effective August _ �_ , 2012.
AUBURN:
CITY N
By
Prirrt Name:
Its: \' \'\c�t,,,,�
BAINBRIDGE ISLAND
CITY OF BAINBRIDGE ISLAND
By
Print Name:
Its:
Date: G
Date.
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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APP OV D A OF
APPROVED AS TO FORM:
BELLEVUE: BURLINGTON:
6.9 Compliance with RCW 39.34.040. Members of the Coalition entering into
this Agreement shall be responsible for ensuring that it is filed in accordance with RCW
39.34.040.
IN WITNESS, the parties below execute this Agreement, which shall become
effective August „_,, 2012.
.._._
BELLEVUE BURLINGTON:
BELLEVUE:
CITY OF BELLEVUE
By:
Print Name: fy W-IA
Its: PEI" "rl
BURLINGTON:
CITY OF BURLINGTON
By:
Print Name:
Its:
Date: l b -q- 12
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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DES MOINES
CITY OF DES MOINES
By:
EVERETT:
CITY OF EVERETT
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
BOTHELL:
City of Bothell
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I BOTHELL:
City of Bothell
By:
Print Name:
BREMERTON
City of Bremerton
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NOTICES TO BE SENT TO:
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CITY OF.BELLEVUE CITY OF BURLINGTON
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
DES MOINES:
CITY OF DES MOINES
By:
Print Name:
Its:
Date:
EVERETT:
CITY OF EVERETT
By:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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Date: °_/Z21 I-Z.–
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CAMAS:
CITY O AMAS
By:
KIRKLAND:
CITY OF KIRKLAND
By:
Print Name: Scoe -r t.�i,��iUS
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Date: °_/Z21 I-Z.–
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NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
LONGVIEW:
CITY OF LONGVIEW
By:
SAMMAMISH:
CITY OF SAMMAMISH
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
CITY OF BELLEVUE
By:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
DES MOINES:
CITY OF DES MOI
By:
Print Name:
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Date: &fo�ee 4� aOG-�--
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APPROVED AS TO FORM:
CITY OF BURLINGTON
By:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
EVERETT:
CITY OF EVERETT
By:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
APPROVED AS TO FORM:
SNOQUALMIE:
CITY OF SNOQUALMIE
By:
SUMNER:
CITY OF SUMNER
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
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EVERETT
CITY OF EVERETT
Date:
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Notices to be sent to: AC11tv 4016r
James D. Iles, City Attorney
2930 Wetmore Avenue suite 10 -C
Everett, WA 98201
Tel. 425- 257 -8739
Fax 425- 257 -8693
Approved as to form:
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ity Attorney ,
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APPROVED AS TO FORM:
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POULSBO:
City of Poulsbo
By:
KELSO:
City of Kelso
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Print Name:
Its.
Date:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO
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APPROVED AS TO FORM:
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LYNNWOOD:
City of Lynnwood
Print Name:
Its:
Date:
FERNDALE:
City of Fernda e
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Date: / .
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APPROVED AS TO FORM:
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POULSBO:
City of Poulsbo
By:
KELSO:
City of Kelso
By
Print Name:
Its:
Print .Name:
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Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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LYNNWOO`D:
City of Lynnwood
By:
FERNDAL. .
City of Ferndale
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ISSAQUAH:
CITY OF ISSAQUAH
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KENT:
CITY OF KENT
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Print Name:
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Date:
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NOTICES TO BE SENT TO:
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MOUNT VERNON:
CITY OF MOUNT VERNON
By:
RENTON:
RENTON
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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BOARD OF COUNTY COMMISSIONERS
OF COWLITZ COUNTY, WASHINGTON
6eo'r6e Rait r, hairman
Michael A. Karnofski,
Misner,
NOTICES TO BE SENT TO:
Douglas E. Jensen
Chief Civil Deputy
Cowlitz County Prosecuting Attorney
312 SW First Ave.
Kelso. WA 98626 _
iensend .co.cowlitz.wa.us (e -mail)
(360) 577 - 3080 (Telephone)
(360) 414 - 9121 (Facsimile)
KELSO:
CITY OF KELS�O
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ISSAQUAH:
CITY OF ISSAQUAH
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Date:
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APPROVED AS TO FORM:
MOUNT VERNON:
CITY OF MOUNT VERNON
By:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO:
KENT:
CITY OF KENT
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CAMAS:
CITY OF CAMAS
By:
KIRKLAND:
CITY OF KIRKLAND
By:
Print Name:
Its:
Date:
Print Name: t& r l vvkae - 6
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NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
R OB1N S. .TENL-wSoA
CjT' ATTORME`t
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APPROVED AS TO FORM:
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LONGVIEW:
CITY OF LONGVIEW
By:
Print ame: Ro ert . G
Its: City Manage
Date: 9'—Z3
NOTICES TO BE SENT TO:
James McNamara
1525 Broadway Longview, WA 98632-
7080
(_360_) - 442- - 5004
(Telephone)
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POULSBO: KELSO:
City of Poulsbo City of Kelso
By: By:
Print Name:
Its:
Date:
Print Name:
Its:
Date:
NOTICES TO BE SENT TO: NOTICES TO BE SENT TO:
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KENT:
CITY OF KENT
By:
MOUNT VERNON:
CITY OF MOUNT VERNON
By:
Print ame: , 1 l - i aLk"
Its:
Print Name:
Its:
Date:
Date: s. - I
NOTICES TO BE SENT TO:
NPT TO 3E SENT TO:
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
RENTON:
CITY OF RENTON
By:
SEATAC:
CITY OF SEATAC
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
( ) - (Telephone)
( ) - (Facsimile)
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LONGVIEW:
CITY OF LONGVIEW
By:
SAMMAMISH:
CITY OF SAMMAMISH
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
(Telephone)
(Facsimile)
(_) - (Telephone)
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
POULSBO:
City of Poulsbo
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City of Kelso
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ISSAQUAH: KENT:
CITY OF ISSAQUAH CITY OF KENT
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MOUNT VERNON: RENTON:
CITY OF MOUNT VERNON RENTON
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CITY OF CAMAS
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KIRKLAND:
CITY OF KIRKLAND
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Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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LONGVIEW:
CITY OF LONGVIEW
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SAMMAMISH:
CITY OF SAMMAMISH
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Its: City Manager
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NOTICES TO BE SENT TO:
Date: - September 20.2012
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CITY OF CAMAS
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KIRKLAND:
CITY OF KIRKLAND
By:
Print Name:
Its:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
(Telephone)
(_) - (Facsimile)
(Telephone)
(Facsimile)
APPROVED AS TO FORM:
APPROVED AS TO FORM:
LONGVIEW:
CITY OF LONGVIEW
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SUMNER:
CITY OF SUMNER
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COWLITZ :
COWLITZ COUNTY
By:
Print ame:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
APPROVED AS TO FORM:
APPROVED AS TO FORM:
SEATAC:
SNOQUALMIE:
CITY OF SEATAC
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SUMNER:
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CITY OF SUMNER
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Date:
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NOTICES TO BE SENT TO:
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SEATAC:
CITY OF SEATAC
By:
Print Name:
Its:
SNOQUALMIE:
CITY OF SNOQUALMIE
By:
Print Name:
Its:
Date:
Date:
NOTICES TO BE SENT TO:
NOTICES TO BE SENT TO:
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APPROVED AS TO FORM:
SUMNER:
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NOTICES TO BE SENT TO:
CITY OF SUMNER
CITY ADMINISTRATOR
1104 MAPLE STREET
SUMNER, WA 98390
NOTICES TO BE SENT TO:
(Telephone)
(Telephone)
(Facsimile)
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APPROVED AS TO FORM:
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