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Home My WebLink About06/19/02 AGENDA co ,c,. FILE JUNE 19, 2002 239 4th Street · Bremerton, WA 98337 · Phone (360) 478-5280 · Fax (360) 478-5251 1. PRE-COUNCIL STUDY SESSION: 5:00-5:30 P.M. A. General Council Business 2. CALL TO ORDER: 5:30 P.M. A. Pledge of Allegiance B. Invocation 3. CONSENT AGENDA A. Minutes of Meeting - May 29, 2002 (#AB02-110) B. Minutes of Meeting - June 5, 2002 (#AB02-111 ) C. Purchased Services Contract for Laboratory Analyses (#AB02-112) D. Agreement between City of Bremerton and Opus Northwest- Phase ]' (#AB02-113) 4. CLAIMS/CHECK REGISTERS 5. COUNCIL MEMBER REPORTS 6. MAYOR'S REPORT 7. PUBLIC RECOGNITION - Comments limited to 3-minutes 8. NEW BUSINESS A. Appointment of Yong Kang to the Lodging Tax Advisory Committee (#AB02-114) B. Re-appointment of Joan Dingfield to the Planning Commission (#AB02-115) C. Collective Bargaining Agreement between City of Bremerton and IAFF Local No. 437 LJ-I (#AB02-116) D. Agreement between City of Bremerton and Opus Northwest - Phase II (#AB02-117) o07 9. PUBLIC HEARINGS - RESOLUTIONS & ORDINANCES ; A. First of Two Public Hearings on the Concession Agreement between the City of / Bremerton and Silverdale Ice Arena, Inc. (#AB02-118) B. Resolution No. 2860, regarding Recovery of Fees for Removal of Vegetation on the listed Properties (#AB02-119) 10. ADJOURNMENT OF MEETING E-mait: citycouncil@ci.bremerton.wa.us · Web: www. ci.bremerton.wa.us CITY COUNCIL MEETING JUNE 19, 2002 SPEAKERS LIST If you wish to make an announcement, inform the Council of an issue, or ask a general question...Please provide information below so staff will be able to contact you. Thank you. NAME ADDRES S/TELEPHONE TOPIC 4. Reminder: The next Council Meeting will be on Wednesday, June 26~ June 12, 2002 Editor, The Sun The vast majority of the people voted for Change in this city. The mayor ran his campaign on the premise of Change. And he was elected on that premise by a huge majority vote. He has put together the plan that is already getting dramatic results based on the people and the circumstances that he believed would make the difference. He has brought into the city government process the people that he has full confidence in. It's his team. So far things are happening. It's working! Developers are coming to our city rather than our city having to go out to try to find opportunities. It's important for the City Council not to respond to the minority of the voters who would not support this Change. The majority has spoken, and that needs to be heard and followed so that we can all move forward into the excitement of great possibilities for our home city. VIOLET KRONE PETERS 2348 East 18tn Street Bremerton, WA 98310 377-7932 cc: Bremerton City Council, with the request that this letter be read into the record at meeting on June /~. 2002 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: JUNE 19, 2002 ORIGINATING DEPT: CITY COUNCIL MINUTES OF MEETING- ~4^¥ 25, 2002 ORIGINATOR: CAROL ARENDS, PRESIDENT DATE SUBMITTED: ,lONE 3, 2002 2. CLEARANCES: (Conmaent on back if necessary) 3. EXHIBITS: ENDORSEMENT [] INFORMATION [] APPROVED FOR SUq3MITTAL BY COUi~ .,CIL PRESIDENT: MAYOR: ~:~}~.z-~.....,~ ~ c.-~-e...,:-._~z--- 4. SUMMARy STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: 5. RECOMMENDATION: 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION: PULLED [~] TAA3LED ~] APPROVED [~]] DISAPPROVED ~ AMENDED ~ DATE: COUNCIL DIRECTIVE: 3A 8. AGENDA BILL NO.: / 9. IMPACT OF NON-PASSAGE: 10. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 11. RESEARCH SOURCES: TAPES #1835 & #1836 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES May 29, 2002 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4th Street, Bremerton, Washington, Wednesday, May 29, 2002, at 5:30 P.M., with Council President Carol Arends presiding. Council members present were Mike Short, Will Maupin, Eric Younger, Mike Shepherd, Ed Rollman, Daren Nygren, Cecil McConnell, and Wayne Olsen. Also present were City Attorney Roger Lubovich; Deputy City Clerk Paula Johnston; and Council Liaison Lori Smith. The meeting opened with the Pledge of Allegiance led by Council Member Cecil McConnell, followed by the invocation provided by Deacon Roi/Mclnnis of Sinclair Missionary Baptist Church. President Arends made the following announcements: (1) The regular Pre-Council Session, which was open to the public, was held in the Council Conference Room to discuss general Council business from 5:00-5:30 P.M.; and (2) There will be two Executive Sessions immediately following the regular business meeting of the Council to discuss "PENDING LITIGATION"; and to "REVIEW LABOR NEGOTIATIONS". CONSENT AGENDA A. Minutes of Meeting - May 8, 2002 (#AB02-101) B. Minutes of Meeting - May 15, 2002 (#AB02-102) #0040 M/S/C/U (McConnell/Rollman) Move to approve Consent Agenda as presented. CLAIMS/CHECK REGISTERS Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090 have been recorded on a listing that had been made available to the Council. #0065 M/S/C/U (Younger/McConnell) On May 29, 2002 the Council approved payment for those vouchers included and further described as follows: EFT-7091, and Check numbers 271312 through 271471 in the amount of $305,351.30; and Retiree Payroll in the amount of $129,616.21 for the pay period ending May 31,2002. COUNCIL MEMBER REPORTS Wayne Olsen was honored to attend the Law Enforcement Memorial Ceremony at Evergreen Park on Friday, May 24, and thanked Chief Rob Forbes for doing an excellent job with the program. Cecil McConnell announced the next District 1 & 2 Town Meeting would be held Tuesday, June 11th starting at 7:00 P.M. at the Sheridan Park Recreation Center to discuss "Is Your Neighborhood Safe?" Ed Rollman provided updates to several issues brought to him by constituents. Mike Shepherd reported that he forwarded several constituent concerns to Departments for a response; reported on a recent visit by his parents; and the Memorial Day Service at Ivy Green Cemetery. Will Maupin thanked the residents of Districts 8 & 9 for attending their neighborhood meeting last week, and thanked Mayor Bozeman for his informative presentation. Mike Short announced the upcoming World Changers event from July 29th to August 2"~ that will include volunteer renovation of 25 homes in the Bremerton area. For more information, people may contact Marilyn Waibel of the Planning Department at 478-5375. He also reported on his attendance at the Law Enforcement Memorial Service; and thanked Officer Cronk for taking him on a "drive around". Carol Arends reported on her attendance at the Law Enforcement Memorial Service. TAPES #1835 & #1836 City Council Reg. Mtg. Minutes May 29, 2002 Page 2 of 6 MAYOR'S REPORT Mayor Bozeman provided a packet of information to the Council and summarized the following items: · Bremerton awarded UPAR grant · Comparison Chart for Kitsap County Residential Utility Rates · A list of the Top Ten Sales Tax Payers for the period ending May 2002 · The Bremerton Fire Department's 100th Anniversary Celebration · Introduced a new brochure advertising downtown Bremerton's Arts District · Articles in the Seattle Times & Olympic Olympian newspapers recognizing Bremerton's Economic Development PUBLIC RECOGNITION Charleen Burnette, Public Access Manager, announced the "3~d Annual BKAT Emmy Awards" ceremony at the Silverdale Community Center on Friday, May 31, 2002 beginning at 6:30 P.M. Pamela Cruise Buckingham pointed out that the curbing on 4th Street is being waxed by skateboarders who come after hours. She suggested that the area be patrolled and that the City consider building a skateboard and BMX park like other neighboring cities. 8A - AGREEMENT WITH NAVAL MEMORIAL MUSEUM OF THE PACIFIC FOR OPERATION OF THE BREMERTON NAVAL MUSEUM (#AB02-103): Kathleen McCluske¥, Administrative Services Director, pointed out that the City has contracted for many years with the Naval Memorial Museum of the Pacific, a non-profit organization to manage and operate the Bremerton Naval Museum. The'Museum artifacts are on loan to the City from the U.S. Navy. Then Museum is operated by an all volunteer staff. The museum will move to an interim location in the Amy Burnett Gallery on June 1, 2002 pending a move to Building 50 in the Maritime Park within the next two years. The museum receives revenue from donations and sale of items in the gift shop. The non-profit organization pays the rent for their space, and the city is obligated for payment of water, sewer, gas, and electricity which is estimated to cost approximately $500 per month. The volunteers keep the museum open all year- seven days per week during the summer and five days per week during the rest of the year. It was pointed out that the City receives a tremendous amount of value from this contractual relationship. There were no comments from the public. #0625 M/S/C/U (McConnell/Rollman) Move to approve operating agreement with the Naval Memorial Museum of the Pacific for the period January 1, 2002 through December 31, 2004. 8B - PHASE [[! PROJECT AGREEMENT BETWEEN THE CITY OF BREMERTON AND THE KITSAP COUNTY CONSOLIDATED HOUSING AUTHORITY (#AB02-104): Mayor Bozeman stated that tasks under the prior project agreements have been completed to the satisfaction of the parties, and the parties now wish to have the Kitsap County Consolidated Housing Authority (KCCHA) proceed with additional tasks related to developing the office building as part of the Phase [[! of the project. It is requested that Council authorize the Mayor to sign the Phase [[! Project Agreement between the City and KCCHA, subject to modifications and approval by the City Attorney. There were no comments from the public. Mr. Rollman provided comments in support of the agreement, but suggested that a parking study by done. Mr. Maupin also provided comments in support of this agreement. #0790 MIS/C/U (Olsen/McConnell) Move to authorize the Mayor to sign the Phase Ill Agreement subject to modifications and approval by the City Attorney. TAPES #1835 & #1836 City Council Reg. Mtg. Minutes May 29, 2002 Page 3 of 6 9A - RESOLUTION NO. 2859~ AUTHORIZING APPLICATION FOR FUNDING ASSISTANCE FOR AN AQUATICS LANDS ENHANCEMENT ACCOUNT PROJECT TO THE DEPARTMENT OF NATURAL RESOURCES (#AB02-105): Jodi Wroblewski, Parks Department Administrative Analyst, announced that the City of Bremerton has embarked upon a downtown plan and development that envisions a renovation to the entire area. Parks and open space are a critical component in achieving this vision. To that end, the Navy is giving the City the property directly west of the Bremerton Transit Center to develop into a park. The north end will house the Naval Museum and the rest of the area will be developed into a downtown waterfront park that will enhance the entrance to the City. In order to fund the development of the park portion, the City wishes to apply to the Department of Natural Resources for an Aquatic Lands Enhancement Account project grant. The total development for the park portion of the project is estimated to be $1,974,959. The ALEA grant request will be for a maximum of $9878,480. The match (balance of funding) will be coming from City funds, and hopefully other grants (e.g. Interagency of Outdoor Recreation grant submitted May 1, 2002). There were no comments from the public. #0915 M/S/C/U (Rollman/McConnell) Move to adopt Resolution No. 2859, authorizing the application for an Aquatic Lands Enhancement Account funding assistance to the Department of Natural Resources for the development of Maritime Park. 9B - ORDINANCE NO. 4805 (SECOND READING)~ AMENDING CHAPTER 2.04 OF THE BREMERTON MUNICIPAL CODE (BMC) RELATING TO CITY COUNCIL MEETINGS AND PUBLICATION OF COUNCIL SALARY SCHEDULES (#AB02-100): The first reading of the ordinance was heard at the Council meeting on May 22, 2002. There were no comments from the public. #0965 M/S/C/U (Shepherd/McConnell) Move to pass Ordinance No. 4805 on second reading. 9C - ORDINANCE (FIRST READING) AMENDING BMC CHAPTER 21.02 (ZONING CODE) BY PROVIDING THE REGULATORY MEASURES ALLOWING FLEXIBILITY AND DESIGN INNOVATION WITH REGARD TO SETBACKS AND LANDSCAPING REQUIREMENTS (#AB02-106): Jim Svenson, Planner with the Community Development, summarized that there are situations when the strict application of the development standards articulated in the zoning code does not promote innovative design and allow land use that best serves the public interest. There is a need for provisions in the Code that will, after careful analysis, allow the Director of Community Development the ability to apply administrative discretion with regards to development standards pertaining to setbacks and landscaping. The Planning Commission has reviewed a similar proposal, which was entitled a "Plan-in-Lieu", conducted public hearings, adopted Findings & Conclusions at a March 29, 2002 meeting, and recommended City Council approval. Subsequently, an administrative (Type I) process pertaining only to setbacks and landscaping will better serve the public interest. The Council must conduct a public hearing prior to its final decision and action on the proposed ordinance in order to implement the zoning text amendments. There were no comments from the pubtic. #1110 M/S/C/U (McConnell/Short) Move to approve the attached ordinance on first reading. TAPES #1835 & #1836 City Council Reg. Mtg. Minutes May 29, 2002 Page 4 of 6 9D - ORDINANCE (FIRST READING) REGARDING ANIMAL CONTROL CONTRACT WITH KITSAP HUMANE SOCIETY AND AMENDING TITLE 7 OF THE BREMERTON MUNICIPAL CODE (#AB02- 107): Police Chief Rob Forbes, said that the City Administration has been working with the Kitsap Humane Society for over six months developing a revamped Animal Control Title and related contract for animal control services for the citizens of Bremerton. This proposal includes several elements of change: 1) The Kitsap Humane Society will provide all animal control services including 2 FTE patrols for impoundment/rescue, facilities for intake, kenneling, licensing, adoptions and education; 2) Dangerous dog laws have been clarified and the hearing process streamlined; 3) License fees for un-neutered dogs and cats will increase to $35 per year; 4) Direct costs will increase $40,000 per year from the present city program but include capital facility needs that the City needs to address if the City retains animal control. Gene Nelson provided a brief history of Animal Control from his term as Mayor; read a list of several questions relating to the services provided in the contract; and expressed his concern that Animal Control would revert back to past practices which may not best serve the community and that the contract might allow some issues to be ignored such as removal of dead animals in the street. Police Chief Rob Forbes, Assistant City Attorney Simon Stoker~ and Deputy City Clerk Paula Johnston addressed all issues raised by Mr. Nelson. Chris Nordleaf stated that although the Kitsap Humane Society does a wonderful job, she was concerned that the City of Bremerton was unique in terms of its need for these services due to the renter-ship and the abundance of animals that may be left behind when people move from the area; and urged the Council to consider the issue of accountability of Kitsap Humane Society to the City if this change were to occur, to research the amount of revenue the City may lose before "giving away" Bremerton's Animal Control. Tammy Coldberq, a volunteer for City Animal Control and the "Rescue Every Dog" (RED) organization, reiterated the concern that the Council thoroughly research all options before making this decision. Dou,q Wakefield, Animal Control Committee Member, agreed with the complexities of this issue, but feels confident that this proposal would most effectively serve the citizens of Bremerton. Joe Labady expressed his opinion that this proposal would be a "huge mistake". Donna Bart spoke of additional issues such as "puppy mills" and other abuse to animals, in addition to the unique-to-Bremerton issue of abandonment of pets by members of the military. Winton Read with the Kitsap Humane Society, discussed further details in support of the proposal. Mary Griffin Russell agreed with the previous comments for the Council to research this issue, and hoped this was not a "done deal". Earl Nelson wanted less emphasis on "animal welfare" and more emphasis on "people welfare"; asked how this proposal addressed the problem of barking dogs; and closed by expressing his opinion that the City should retain an Animal Control Department. Simon Stocker expounded on language contained in the ordinance which addresses the issue of barking dogs. Mr. Read added that any animal causing a threat would be immediately addressed by the City's Police Department. Chief Forbes emphasized that Police Officers would still respond to late-night calls regarding barking dogs. Mr. Nv_qren and Mr. Short both served as members on the Animal Control Committee, and offered assurances that all of the issues were discussed thoroughly. Each expressed confidence in their decision to support this proposed contract, and emphasized that it was a trial basis, with the opportunity for a 6-month review. TAPES #1835 & #1836 City Council Reg. Mtg. Minutes May 29, 2002 Page 5 of 6 Mr. Shepherd inquired if the Kitsap Humane Society uses cat traps and if they pick-up of the cats. Mr. Read responded yes. Mr. Shepherd asked if the Kitsap Humane Society is currently approved for FEMA emergency response. Mr. Read answered that the Kitsap Humane Society is a member of Kitsap Animal Rescue Teams which is controlled by Kitsap County Department of Emergency Management and FEMA, and that Kitsap County is FEMA certified and in turn registers individuals as disaster workers. Mr. Shepherd also asked if the Kitsap Humane Society currently conducts active enforcement or simply responds to complaints. Mr. Read stated that enforcement is complaint-based, but emphasized that the Kitsap Humane Society would work closely with local law enforcement to look at high incidence areas. Mr. Shepherd then asked if Kitsap Humane Society routinely applies for grant funding. Mr. Read responded yes. Mr. Shepherd stated that this community is unique with respect to its transient population and pointed out that responding only to complaints is not necessarily an approach that will benefit the community. TAPE #1836 Mr. Rollman thanked everyone who was involved in bringing this contract forward and asked if the committee had considered the issue of privatizing the collection process. Mr. Read answered that collection and the checking of pet licenses was not part of the agreement, and that fines would be levied by the Municipal Court system. He further explained that in most jurisdictions, compliance is voluntary and that enforcement is problematic and time consuming. Mr. Rollman asked for clarification on the nature of future audits of the organization. Mr. Read responded that financial audits would be conducted in the future not performance audits. If other attributes of service need evaluation, then the organization would work with Council to develop standards to be considered for review. Ms. Johnston added that the working relationship between the City and Kitsap Humane Society would be reviewed in January 2003 and that his concerns could be better addressed at that time. She reiterated that revenue has been historically consistent with respect to license fees and revenue from those license fees is passed directly to the City. Mr. Read stated that the ordinance allows for an additional change to improve the system would include making pet shop operators collect the license fee upon sale of an animal and providing documentation to the Kitsap Humane Society which provides another opportunity to people to license their pets. Mr. Olsen thanked all of the citizens for coming forward with their input tonight in favor or against contracting out animal control services. He expressed concern over the proposed practice of "canvassing", which has been found to not be very effective in other cities. He emphasized that we should rely on the people's honesty in licensing their pets. Mr. Nv~ren recognized the concern over past performance in dealing with animal control issues and is willing to look at the performance of the Kitsap Humane Society to see if that organization is living up the agreement and meeting the needs of the people. Mr. Younqer commented that there are probably many animals in the City that are not licensed, and that licensing those animals could allow the program to pay for itself easily. He therefore suggested that the issue should be addressed in the future. Mr. Maupin explained that he understood that there is disagreement on which party should perform the services but we need to consider who can do the job and best improve the quality of the services provided to the people. President Arends has reservations on this issue: thanked the committee for their efforts: and 7 TAPES #1835 & #1836 City Council Reg. Mtg. Minutes May 29, 2002 Page 6 of 6 emphasized that this ordinance will go to second reading so input can be considered prior to making a decision. Mr. McConnell has been in support of contracting out animal control services to free up Police Officers for more important duties. #0570 M/SICIU (Short/Olsen) Move to approve ordinance replacing Title 7 Animal Control of the Bremerton Municipal Code on first reading as amended. Voted in favor of Motion: Short, Olsen, McConnell, Nygren, Younger, Maupin Voted opposed to this Motion: Rollman, Shepherd Abstained: Arends Motion carried: 6-Yes; 2-No; 1-Abstention Council reconvened following the Executive Session regarding "Pending Litigation"... Mr. Lubovich summarized the settlement agreement and the following motion was made and passed unanimously... #0619 M/S/C/U (ShortJMaupin) Move to authorize the City Attorney to finalize and execute a settlement agreement with Puget Sound Energy, Inc. (PSE) in the PSE General Rate case pending before the WUTC Docket Nos. UE-011570 and UE-011571 PSE2 relating to City relocation and underground conversions upon terms substantially similar to the negotiated Schedule 71 which is hereby made part of the record. Furthermore, upon the WUTC approval of the negotiated schedule 71, the City Attorney is authorized to dismiss the appeal of the initial underground case PSE1 pending before the Thurston County Superior Court, Case Numbers 02-2-00341-6 and 02-2-00774-8. At the conclusion of the regular business meeting, the City Council reconvened in the Council Conference Room for and additional Executive Session to "REVIEW OF LABOR NEGOTIATIONS". With no further business, the Council meeting was adjourned at 8:00 P.M. Prepared and Submitted by: LORI SMITH Council Liaison Attest: PAULA JOHNSTON, Deputy City Clerk CAROL ARENDS, City Council President City of Bremerton CA/PJ/Islcge c: Normal Distribution; File AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: JUNE 19, 20O2 ORIGINATING DEPT: CITY COUNCIL MINUTES OF MEETING- JUNE 5, 2002 ORIGINATOR: CAROL ARENDS, PRESIDENT DATE SUBMITTED: JUNE 12, 2002 2. CLEARANCES: (Comment onback if necessary) 3. EXHIBITS: ENDORSEMENT [] INFORMATION [] APPROVED FOR SUq3MITTAL BY COU~,CIL PRESIDENT: MAYOR: '<"~ · ""~'"~' .~ ' ' 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: 5. RECOMMENDATION: 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIIL4~TION DATE: REVIEW DATE: 7. NOTICE OF ACTION: PULLED ~ TABLED [~ APPROVED ~] DISAPPROVED ~] AMENDED ~ DATE: COUNCIL DIRECTIVE: 3/3 9. IMPACT OF NON-PASSAGE: 10. .IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 11. RESEARCH SOURCES: ]0 TAPE #1837 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES June 5, 2002 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4th Street, Bremerton, Washington, Wednesday, June 5, 2002, at 5:30 P.M., with Council Vice-President Will Maupin presiding. Council members present were Mike Short, Will Maupin, Eric Younger, Daren Nygren, Cecil McConnell, and Wayne Olsen. Council Members Carol Arends, Mike Shepherd, and Ed Rollman were absent. Also present were City Attorney Roger Lubovich; Deputy City Clerk Paula Johnston; and Council Assistant Christine Grenier Ellingson. The meeting opened with the Pledge of Allegiance led by Council Member Cecil McConnell, followed by the invocation provided by Council Member Daren N¥.qren. President Arends made the following announcements: (1) The regular Pre-Council Session, which is open to the public, was held in the Council Conference Room to discuss general Council business from 5:00 to 5:30 P.M; and (2) There will be a Monthly Study Session in the Council Conference Room following the Council meeting to discuss "THE CDBG ALLOCATION PLAN FOR 2003"; an "UPDATE ON THE ICE ARENA"; and "PUBLIC SAFETY BOND AND CENCOM ISSUES". CONSENT AGENDA A. Minutes of Meeting - May 22, 2002 (#AB02-108) #0050 MIS/ClU (McConnell/Olsen) Move to approve Consent Agenda as presented. CLAIMS/CHECK REGISTERS Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090 have been recorded on a listing that had been made available to the Council. #0065 MISIC/U (Younger/McConnell) On June 5, 2002, the Council does approve for payment those vouchers included and further described as follows: Check numbers 271485 through 271731 in the amount of $388,897.13. COUNCIL MEMBER REPORTS Daren Nv~ren reminded the public that the first Friday Art Walk would be this Friday, June 7th and that galleries and shops would be open late that evening both in downtown and in Manette. Wayne Olsen announced that the next District 1 & 2 Town Meeting would be held on Tuesday, June 11th from 7:00 to 8:30 P.M. at the Sheridan Park Recreation Center located at the corner of Lebo Boulevard & Clare Avenue. The topic will be "Is Your Neighborhood Safe" with representatives from the Police Department present to answer questions. Will Maupin congratulated Ed Rollman and his wife Pranvera on the recent birth of their baby boy. II TAPE #1837 City Council Reg. Mtg. Minutes June 5, 2002 Page 2 of 2 MAYOR'S REPORT - There was no report this week. LEGISLATIVE REPORT At the Council meetings held on May 8th and May 15th, Larry Dickerson and Del Knauss submitted letters asking several questions related to the Council pay raises and a proposal to appoint a Deputy Mayor. A written response was provided by the Legal Department, and it was noted that any citizen interested in obtaining a copy of the letters may contact the Council Office at 478-5280. PUBLIC RECOGNITION Susan Brown read exerpts from the ferry lawsuit settlement and commented on the events leading up to the lawsuit. Debbie Peavler Stewart announced the 5th Annual Affordable/Fair Housing Event will be held on Saturday, June 8th from 9:00 A.M.-10:00 P.M. at the Kitsap Mall. People may call Shirley Christensen at 337-7285 for more information. Robin Moody invited Council Members to an Open House this Friday from 5:00 to 7:00 P.M. at the Bremerton Patriot office on Burwell. With no further business, the Council meeting was adjourned at 5:39 P.M. The Council reconvened in the Council Conference Room for an open Study Session to discuss "THE CDBG ALLOCATION PLAN FOR 2003; AN UPDATE ON THE ICE ARENA; AND PUBLIC SAFETY BOND AND CENCOM ISSUES". Prepared and Submitted by: LORI SMITH, Council Liaison Attest: PAULA JOHNSTON, Deputy City Clerk CAROL ARENDS, City Council President City of Bremerton CA/PJ/Is/cge c: Normal Distribution File AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: JUNE 19, 2002 Purchased Services Contract Originating for Laboratory Analyses Department:: Public Works and Utilties Originator: Kathleen Cahall Date Submitted: May22, 2002 2. CLEARANCES: (comment on ~/~.~e4Ces..~ary) 3. EXHIBITS Director, Public Works/Utilities _//v"~~._ ~ ~ ~3ontract Assistant City Attorney ' ~ .~. · Scope of Work Council Budget & Finance Committee ~. ,~,',& '" ' . ~,,,4,,.-., ENDO~MATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAY(~ ~.~/'~?'~ ~ "' ~-~ COUNCIL PRESIDENT ,/.~<~?~.. 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Bremerton's water system must comply with many regulations requiring analysis of water samples. Several new regulations start in 2002 significantly increase these analytical costs. The majority of the work being contracted with Edge Analytical is for these regulations. This contract with Edge Analytical is not to exceed $30,000 for calendar year 2002. 8. RECOMMENDATION: That council approve the contract with Edge Analytical, Inc. and authorize the Mayor to sign, subject to City administrative policies and procedures. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED AMENDED COUNCIL DIRECTIVE DATE: ~ 2. CLEARANCE COMMENTS: 5. IMPACT ON NON-PASSAGE: If this contract was not approved, the City could not have the water analyses performed and would be in significant non-compliance with the Safe Drinking Water Act and subject to enforcement by the Environmental Protection Agency. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: These expenditures were anticipated and funds have been budgeted in the Public Works and Utilites Water Resources Division 2002 budget. 7. RESEARCH SOURCES 40 CFR Part 141 National Primary Drinking Water Regulations PURCHASED SERVICES AGREEMENT for Edge Analytical Laboratories THIS IS A CONTRACT for purchased services, made and entered into this _ day of ,2002, by and between the City of Bremerton, hereinafter called "City" and Edge gmalytical Laboratories, hereinafter called "Contractor," referred to collectively as the "Parties." WHEREAS, the purpose of this contract is to provide laboratory analytical services for the City of Bremerton. NOW, THEREFORE, in consideration of the terms and conditions contained herein, and attached and incorporated and made a part hereof, the City and Contractor mutually agree that Contractor shall provide laboratory services for the City of Bremerton as follows: I. Scope: The Contractor shall provide all performance of work for laboratory services, including all labor, materials, equipment, supplies, and services necessary for and reasonably incidental to the completion of alt work as set om in the Scope of Work attached as Exhibit A and incorporated herein by reference. The Scope of Work may be modified only pursuant to Section VIII. D. of this Agreement. If the Scope of Work provides for unspecified additional services the City may request, such services shall only be performed upon the express, written request of the City. Consultant further represents that the services furnished under this agreement will be performed in accordance with generally accepted professional practices in effect at the time such services are performed. II.Term: This Agreement commences on the date of execution of this Agreement and terminates on December 31, 2002 unless another date is substituted pursuant to Sections VII. D. or IX. III. Compensation: The City agrees to pay Contractor according to the prices listed in the Edge Analytical Price Book 2002 described in Exhibit B attached as Exhibit C. Contractor's charges and bills shall conform to the prices in Exhibit C. The Contractor shall submit regular billing statements describing services rendered. Upon receipt of a billing statement, the City shall promptly process payment. Contractor shall not perform work beyond those requested by the City on Chain of Custody forms, nor shall Contractor be compensated for such work. unless the amount of compensation is modified pursuant to this Agreement. Any out-of:scope services requested by and approved by the City Water Resources Manager shall be compensated for at an amount to be agreed upon later. IV. Relationship of Parties: The parties intend that an independent contractor-employer relationship will be created by this Agreement. As Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City, no agent, employee, representative or sub-contractor of Consultant shall be or shall be deemed to be the employee, agent, representative or sub-contractor of the City. In the performance of the work, Consultant is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained under this Agreement. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-contractors of the Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-contractors during the performance of this Agreement. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Contractor or its personnel. Contractor shall work under the direction of the City's Water Resources Manager. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work. V. Work Performed at Consultant's Risk: Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. vi. Licenses & Taxes: Contractor shall possess a current Bremerton Business License and regulatory licenses required to fulfill Contractor's obligations under this contract. As an independent contractor, Contractor is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, B&O, and City business licensing. If any taxes or fees due the City have been declared delinquent, Contractor, by this agreement, assigns any payments due under this contract to the City Clerk for payment of such taxes. The City may also withhold the delinquent amounL plus any additional charges arising from the delinquency, from any payments due Contractor. vii. Insurance and Hold Harmless: A. Indemnification: Consultant shall defen& indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Consultant's performance of this Agreement. except for that portion of the injuries and damages caused by the C itx,'s negligence. The City's inspection or acceptance or' any of Consultant's work when completed shal[ not be grounds to avoid any or' these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concun'ent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER iNDUSTRIAL iNSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. B. Insurance: The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise fi'om or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees, sub-consultants or sub-contractors. Before beginning work on the project described in this Agreement, the Consultant shall provide a Certificate of Insurance evidencing: 1. Commercial General Liability insurance written on an occurrence basis with limits no less than $500,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and Any payrnent of deductible or self insured retention shall be the sole responsibility of the Consultant. All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which shall be provided on a "claims-made" basis. The Citv shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work perfmTned bv or on behalf of the Consultant and a copy of the endorsement naming the City as additional insured shall be attached to lhe Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies. The Consultant's Cormnercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Consultant's insurance shall be primary insurance as respects the City and the City shall be given thirty (3 0) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the fon-n of a duplicate of the insurance policy with all endorsements as evidence of coverage. viii. General Conditions: A. Reports and Information: When requested by the City, Contractor shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form requested. Contractor shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed information. B. Entire Aareement: This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties ackmowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. C. Severabilit¥: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. D. Modification: This Agreement may only be modified by written instrument signed by both Parties. E. Notices: Notices shall be in writing and delivered to the following addresses: Ciw Address Contractor Address Kathleen Cahall Larry Wagner Water Resources Manager Edge Analytical Laboratories City of Bremerton Public Works and Utilities 11525 Ka~udson Road o0,~, Olympus Drive Burlington. WA 9e"x3 Bremenon. WA 98310 F. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. G. Compliance with Laws: Contractor shall comply with ali applicable Federal, State, and local laws in perfonning its obligations under this Agreement. H. Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. I. Attorneys' Fees: To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties' performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City's right to indemnification under Section VII of this agreement. J. Assizmnent: Any assignment of this Agreement by the Consultant without the written consent of the City shall be void. If the City shall give its consent to any assignment, the terms of this agreement shall continue in full force and effect and no further assignment shall be made without the City's consent. IX. Nondiscrimination: Contractor shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, or disability, except for employment actions based on bona fide occupational qualification. x. Termination: This Agreement may be terminated, at will, by either Party upon ninety (90) days' notice to the other Party. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non-performing Party does not commence correction of the failure of performance within five days of the terminating Party's sending notice to the non-performing Party. Upon termination, the City shall be entitled to copies of all Contractor's records and data pertaining to performance under this contract. The City will pay Contractor for services rendered up until the date of termination upon receipt of invoices substantiating the extent of satisfactory services rendered. Xl. Successors and Assigns: The City and Contractor each agree to be bound to the other party in respect to all covenants, agreements, and obligations contained in this contract. Neither party shall assign the contract in part or as a whole, without the x~ritten consent of the other. lq IN WITNESS WHEREOF the parties hereto have executed this Contract the date and year indicated. EDGE ANALYTICAL LABO1C~.TORIES Larry Wagner Date CITY OF BREMERTON Cary Bozeman, Mayor Date Departmental Approval W. Eugene Smnpley, Director Public Works & Utilities Approved as to form: Roger Lubovitch City Attorney Received for Filing: Kathleen McCluskey, City Clerk Exhibit A Scope of Work Purchased Services Contract with Edge Analytical Laboratories Analytical Procedures Requested Bremerton requests laboratory support services for a variety of programs, including drinking water regulatory compliance, EPA Unregulated Contaminant Monitoring Rule (UCMR), combined seweroverflows (CSO), biosolids application permit compliance, and for other environmental investigative needs~ Appropriate approved ana[ytica[ procedures meeting regulatory requirements will be used. Certification Required All Analyses for drinking water compliance must be performed by a laboratory certified by the Washington State Department of Health. All analyses for CSOs, soils, and streams must be performed by a laboratory accredited by the Washington State Department of Ecology All analyses for compliance with the Unregulated Contaminant Rule must be performed by a laboratory codified by the US EPA. Sample Containers and other Materials Required for Sampling Bremecton will give the [ab at least 5 working day notice of the need for sample containers. All sample containers will be supplied by the lab, delivered to Bramerton, and will ardve clean and prepared for the particular analysis required. The laboratory will provide any needed coolers, ice packs, and ~ab blanks delivered with the sample containers. Breme~on will return them when sampling is completed. The laboraton/will supply chain of custody forms. Sample Transport Bremerton will deliver samples by hand delivery or mail as soon as possible. BremeAon will send a completed chain of custody form with each set of samples and will inform the lab of any specific requirements for testing. The laboratory will alert Bremerton if there are days when samples cannot be received by the lab. Laboratory Holding Times The laboratory will strictly adhere to ali regulatory-required holding times. If the laboratory exceeds these holding times, then Bremerton can choose to either accept the data as flagged or require a new set of analysis at no additional cost. On occasion Bremerton will require an analysis on a sample that has exceeded a holding time due to factors beyond our control. These samples will be noted as such on the chain of custody form and analysis will be conducted. Sample Receipt Acknowledgement The laboratory will provide a sample receipt acknowledgement to Bremerton by fax: ATTN: WATER RESOURCES 360-478-5018 or by e-mail to DADAMS~CI.BREMERTON.WA. US Data Package The data package witl be received by Bremerton within 30 calendar days of sample receipt by the laboratory and will include the following: Case Narrative - sample type and sample ID, summary of any problems with sample, shipment, holding times, QC, etc. QNQC Documentation - Results of all quality control checks initiated by the laboratory, calibration and blanks, spike results, instrument performance. Sample Data - final results for al~ samples. Standards Data - instrumentJmethod detection limits For drinking water regulatory samples, report ail data to the State reporting limit. Edge will be registered to enter data into the EPA CDX for electronic reporting as required for the UCMR. Exhibit B Budget Purchased Services Contract with Edge Analytical Laboratories Analytical prices will include sample containers and shipping the containers to the City, laboratory analysis, data reporting, and QA/QC procedures. Bremerton will be responsible for the cost of transporting samples to the laboratory. Prices for analyses in calendar year 2002 will not exceed the quotes attached as "Edge Anaylitical 2002 Price Book". Total charges for calendar year 2002 will not exceed $30,000. Exhibit C Edge 2002 Price Book AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA: June 19, 2002 APPROVAL AND RATIFICATION OF THE PHASE I ORIGINATING DEPT: Executive SCHEMATIC DESIGN AGREEMENT BETWEEN THE ORIGINATOR: Gary Sexton CITY OF BREMERTON AND OPUS NORTHWEST LLC DATE SUBMITTED: June 14, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: ~ -~- ~ PHASE I SCHEMATIC DESIGN AGREEEMENT R~GER A.-'L'EH~VICH, City At.t.p~rge'~ BETWEEN THE CItY OF BREMERTON AND Heard May 14, 2002 OPUS NORTHWEST LLC FISCAL & BUDGET CHAIRMAN Heard May 14, 2002 . OPERATIONS CHAIRMAN APPROVED FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The agreement describes the scope of work, critical path and cost for performing Phase I of the schematic design of the downtown conference center. This matter was presented to Council Committees on May 14, 2002. 8. RECOMMENDATION: Move to approve and ratify execution of the Phase I Schematic Design Agreement between the City of Bremerton and OPUS Northwest LLC. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: PULLED [---] TABLED [--] APPROVED [--] DISAPPROVED [--] AMENDED COUNCIL DIRECTIVE: 11. AGENDA BILL NO.:. 5. IMPACT OF NON-PASSAGE: 6. IMPACT ON STAFFING, BUDGETS~ FACII,ITIES, EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: AGREEMENT BETWEEN THE CITY OF BREMERTON AND OPUS NORTHWEST mad o 'the BETWEEN the Lead Agency City of Bremerton 245 Fourth Street Bremerton, WA 98337 And the Designer/Developer (for purposes of this agreement referred to as "Developer") Opus Northwest 915 118th Avenue SE, Suite 300 Bellevue, WA 98005 For the following Project: First and Washington Conference Center- Phase I The Lead Agency and Developer agree as follows: 1. The "Project" parameters The Project is a public/private joint development between the Lead Agency and the Developer for the development of a mixed-use facility on the waterfront immediately adjacent to the Ferry Terminal. This agreement is for the project work through Phase I of the schematic design/development phase as set forth in Attachment A with several conditions subsequent as herein listed. The Project includes: · Parking Structure A parking structure located on 3 levels below the street elevation of Washington Avenue. The ownership will be jointly held between the City of Bremerton and Kitsap Transit subject to a parking managing agreement between Kitsap Transit, the City and the Developer. Parking will support the conference center, hotel, restaurant, offices, residences, retail, marina, commuters and visitors. Conference Center "Conference Center" shall mean the Kitsap Regional Conference Center, a regional tourism related facility which will include no less than 15,00(2 square feet of gross floor space, including no less than 7,500 square feet of banquet space, the Associated Parking, and related public spaces, including a lobby area and additional break-out spaces, and which facility shall be part of the Project. The conference center shall have a distinct identity, as a public facility, with well-defined exterior entrances, and a waterfront orientation. Fhe main conference room must be able to seat 420 persons for banquets and 600 DRAFT Agreement bet~veen COB & OPUS l ~V6/2002 for meetings. The meeting/banquet room shall be capable of being separated into four smaller spaces. Reception, lobby and storage areas are required. A serving kitchen that may be part of the restaurant must be adequate to support catered banquets. Office space shall be provided for managerial or supervisory personnel. The Center will be owned, managed, operated and maintained by the City. · Hotel The hotel must include not less than 100 guest rooms and will be financed, owned, operated and maintained by the Developer or assigns agreed to in writing by the lead agency. The air rights for the hotel will be leased or sold upon completion of the hotel to the Developer. The hotel must be separate from the conference center but may be connected to it. · Restaurant The restaurant will be financed, owned, operated and maintained by the Developer or assign agreed to in writing by the Lead Agency. The air rights for the restaurant will be sold or leased to the Developer. The restaurant's location within the complex must take advantage of waterfront views. Its kitchen must have the capacity to cater conference center banquets and provide room service for the hotel. · Retail Space Not less than 10,000 Gross S.F. commuter retail space (CRB), with the majority of space to be located on the Commuter Retail Building pad on the transit deck level of the BTC. The retail space will be financed, owned, operated and maintained by the Developer or assigns as agreed to in writing by the lead agency and Kitsap Transit.. · Office Space Not less than 10,000 Gross S.F. office space (KT Office) will be located above the commuter retail space. Offices must take full advantage of water views. Not less than 10,000 square foot of the office space initially will be owned by the Developer subject to a lease and purchase option in Kitsap Transit. The design and construction of the office space to be leased/purchase optioned by Kitsap Transit will be subject to design development and agreement to be negotiated between Kitsap Transit and the developer with review input by the lead agency. · Residential The residential component shall be financed, owned, operated and maintained by the Developer on air rights purchased or leased from the Lead Agency and/or Kitsap Transit. · Marina DRAFT Agreement between COB & OPUS 5/6/2002 The project design shall accommodate access for owners, liveaboards and guests (including provisioning). Design consideration for a two story 1500 S.F. Harbor Master unit on the site should be given. · Expanded Waterfront Park Public open space park must be incorporated in the project and should complement the existing boardwalk and the waterfront park. Service/emergency vehicles and pedestrian access must be maintained between boardwalk, waterfront park, this development and Washington Avenue. · Sensitivity Toward View Corridors The design shall be sensitive to open space and view corridors. The design should include pedestrian access and public view corridor through the site and to the open space from Second Street, the CRB pad, the transit area below the pad, and the BTC. · SiteAccess Issues The project has several vehicle access requirements. Existing access to the project site is from Second Street. Emergency vehicles will require access around the development complex. Service and emergency vehicles access to the Boardwalk and Waterfront Park must be maintained. Freight/delivery vehicles and refuse disposal trucks will require access to the loading dock area of the development complex. A main entrance is necessary for the public components of the facility. A vehicle drop off area should be provided at the main entrance to serve cars and tour buses. Pedestrian access shall be maintained to the facility from the main entrance, boardwalk, waterfront park, and the BTC transit deck and passenger ferry. HOV garage access and egress must be considered. 2. The property being developed ("Project Site") is bounded by that property between the waterside utility easement, Washington Avenue centerline, the north line of 2nd Street and the south line of the north 50 feet of the BTC CRB pad and air spaces above (Project Site) in Bremerton, Washington. 3. Lead Agency Team 3.(a.) The Lead Agency Representative is: Gary Sexton, Proiect Manager City of Bremerton 239 Fourth Street Bremertom WA 98337 DRAFT .-tgreement benveen COB & C)? US '~ 5/6,~002 3.(b.) The persons or entities in addition to the Lead Agency Designated Representative, who will review the Project Designer's submittals to the Lead Agency Project Representative are: Dick Hayes of Kitsap Transit Bror Elmquist, Representative of Kitsap Public Facilities District Cary Bozeman, Bremerton Mayor Chris Hugo, Director of Community Development Gene Sampley, Director of Public Works 3.(c) The Lead Agency's other consultants and contractors are: Art Anderson Associates 202 Pacific Bremerton, WA 98337 4. The Project Developer Representative is: 4.(a.) Bart Brynstad Opus Northwest 915 118th Avenue SE, Suite 300 Bellevue, WA 98005 In the event Bart Brynstad is not available, P.J. Santos of Opus is authorized to act on behalf of the Developer. 4. (b.) For purposes of the public ownership components of the project the Lead Architectural fLrm is: LMN Architects 801 Second Avenue, Suite 501 Seattle, WA 98104 4. (c.) Additional consultants retained at the Developer's expense are: Terry Reckord McCleod Reckord 231 Summit Ave. East Seattle, WA 98102 Steve Rice Rice Fergus Miller Architects 262 Fourth Street Bremerton, WA 98337 5. Joint Responsibilities of the Parties The Lead Agency and the Developer shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships among all members of the Project team. DRAFT Agreement between COB & OPUS 5/'6/2002 6. Lead Agency The Lead Agency shall provide full information in a reasonably timely manner regarding requirements for and limitations on the Project. 6. (a.) The Lead Agency Designated Representative shall be authorized to act on the Lead Agency's behalf with respect to the Project. The Lead Agency Designated Representative shall act in a reasonably timely manner. 7. Developer The services performed by the Developer are as follows: 7. (a.)The Developer shall, in Phase I pursuant to the terms of the agreement, perform those services listed in Attachment A hereto during the month of May 2002. Developer shall be paid the amounts set forth in Attachment A as "Lead Agency Costs". 7. (b.) The Developer shall at the end of Phase I provide a critical path schedule and scope of phase work for the future design phases. The Developer shall by the conclusion of Phase I provide the schematic design cost estimate and component cost breakdown. The Developer shall not significantly increase or decrease the overall budget, without the agreement of the Lead Agency Project Representative pursuant to a change in the Project scope and quality by way of addendum to this agreement. 7. (c.) The Developer's services shall be performed consistent with the time periods established herein which shall be adjusted, if necessary, as the Project proceeds. This schedule shall include allowances for periods of time required for the Lead Agency's review, for the review by others listed in paragraph 3, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule shall not, except for reasonable cause, be exceeded by either party. 7. (d.) The Developer's designated representative identified in Paragraph 4 shall be authorized to act on the Developer's behalf with respect to the Project. 7. (e.) The Developer shall review and comply with laws, codes and regulations applicable to the Project. 8. Scope of Work The scope of work of the Developer under this agreement is as follows: See Attachment A. 8. (a.) Ownership Upon full payment of all sums due or anticipated to be due the Developer under this Agreement, the iatest original drawings, specifications, and the latest electronic data prepared by the Developer for the Project shall become the DRAFT Agreetnent ber~veen COB & OPUS 5 3/6/200£ property of the Lead Agency. This conveyance shall not deprive the Developer of the right to retain electronic data or other reproducible copies of the drawings and specifications or the right to reuse information contained in them in the normal course of the Developer's professional activities. The Developer shall be deemed the author of such electronic data, documents and design, and shall be given appropriate credit in any public display of such documents. 8. (b.) Change in Services Change in services of the Developer, including services required of the Developer's consultants, may be accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in writing, including any agreed change in compensation and time for performance. 9. Time for Performance: 30 days 10. Payments to the Developer The Lead Agency shall pay the Developer within 20 days after completion of the Phase I work and delivery to Lead Agency, Developer's itemized statement of services with attachment of subcontracts and invoices for labor, services and materials provided. 10. (a.) Reimbursable Expenses are in addition to compensation for the Developer's services and include expenses as follows: .1 transportation in connection with the Project, outside of Kitsap, Pierce and King Counties as pre-approved by the Lead Agency Project Representative; .2 fees paid for securing approval of authorities having jurisdiction over the Project; .3 reproductions, plots, photographs, standard form documents, postage, handling and delivery of Instruments of Service; .4 presentation or final renderings, models and mock-ups requested by the Lead Agency. 10. (b.) Amounts not properly paid within forty-five (45) days after the date the properly prepared invoice was delivered to the Lead Agency Project Representative shall bear interest at the rate of 12% per annum until paid in full. 11. Miscellaneous Provisions Each party shall defend, indemnify and l~old the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with its performance of this Agreement. 1.1. (a.) This Agreement shall be governed by the laws of the State of Washington. t 1. (b.) Unless otherwise provided in this Agreement, the Developer and Developer's consultants sl-~all have no responsibility for the discovery, presence. DRAFT Agreement benveen COB & OPUS 5/6/2 0 0 2 handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. 11. (c.) The Lead Agency and Developers, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all other covenants of this Agreement. Neither the Lead Agency nor the Developer shall assign this Agreement without the written consent of the other, except that the Lead Agency may assign this Agreement to an institutional lender providing financing for the Project. 11. (d.) If the Project is suspended by the Lead Agency for more than 60 consecutive days, the Developer shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Developer shall be compensated for expenses incurred in the interruption and resumption of the Developer's services if approved in advance. The Developer's fees for the remaining services and the time schedules shall be equitably adjusted, per mutual agreement. 11. (e.) If the Project is suspended or the Developer's services are suspended for more than 120 consecutive days, the Developer may terminate this Agreement by giving not less than seven days' written notice. 11. (f.) This Agreement may be terminated by the Lead Agency upon not less than seven days' written notice to the Developer for the Lead Agency's convenience and without cause. 11. (g.) In the event of termination not the fault of the Developer, the Developer shall be compensated for services performed prior to termination, together with reimbursable expenses. 11. (h.) Termination Expenses are in addition to compensation for the services of the Agreement and include reasonable expenses directly attributable to termination for which the Developer is not otherwise compensated. Termination expenses shall be limited to $5,000 for the Developer and Consultants. 11. (i.) Some of the construction will be subject to Federal Regulations and Requirements (see http://www.fta.dot, gov/library/legal), http://www.fta.dot, gov/office/program/~omw/Clauses.html), including compliance with NEPA, Davis-Bacon and Buy America. The remaining public construction must comply with State Prevailing Wages. The Scope of Federal Regulation compliance, including application to specific components will be determined during the project developer contract negotiations and schematic design development phases. DRAFT Agreement between COB & OPUS 7 .5/'6.~ 0 0 2 ,30 11. (j.)Subsequent phase agreements will have Developer forfeiture provisions for any failure to proceed or to perform as shall be hereafter agreed between the parties. 11. (k.) This agreement represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. ,-xT~, year first written a~ove~~ This Agreement ent.e~md i~t6::~is of the day and Le~d~'ge~cyRep2~n Ule) ~ c, ./~~-'/~ at Developer Representative (signature) (Printed name and title) 'Printed name and title) DRAFT Agreement between COB & OPUS g 5/6/2002 3t TllY2 CITY OF BREIvlERTON AND OPUS NORTI:IWESI~ L.L.C, EXwriI1T I PRE-DEVELOPMENT SCOPE & COSTS THROUGH JUNE 1, 2002 o.,[:hnica~Soils: Terra and Associates: Conduct investigation by test boring methods at 8 locations and study findings ia rcgazds to soil. and ground wa~r conditions, se/stoic parameters and eshablish water monitoring wells in 4 of the bored holes. CoordSnate findings wi~ design team. Civil -..A,LTA and Topo; Parametrix: Conduct as-built record review for all underground utilities, conduct Full ALTA survey and topo, establish bcnch~a'narks review geo-tech findings, and coordinate findings wilh de~i~ team. Strtt :rural: CKC: Assess existing structural components and cond/tions ~ which may effect design paramel~rs. Rc~earch, review and coordinate site condition finding~ with design team. Are~ ~ic~ctural: £MN~rchitects: Review ex/sting building and pla~rting cones for proposed desi~. Begin sch~a~tic dc~igr~ work on parksng garage to fuxth~r define park/ag count, study con£ereace center, retail office floor plans and coordinate with overall desi~ mare. Env~'onm~tal: TBD- Hart Crowscr/?arametrix: Update ex/sting phase I study from 1997. :Parll~iag: TDA inc.: Parking analyxis for overall project reviewing past ~tudies and laying out new project's parking requ irement$. _Consultant City Opu.* C~omch $20,000 Cix~il $15,000 Stmctm~l $10,000 ~,750 Archit~al- ~ $20,000 $5,0~ ~ch - Ho~el ~,000 ~ch - Residenti~ $4,0~ En~ro~ment~ $8,000 P~ng $2,0G0 Residenh~ .~s $6,0~ Remi~'Offiae ~ysis $6,~ P~e~ns~uction semces $12,000 $8,0~ Pr~evel~ent seine_es $16~ Submt~ $87,000 $53,750 $94,395 ~.p:\REDE'~,'~3rcm.o'toa Co~d.~c'xmc C,c~tiaSCaatncwL.D¢'~ Ag/Exh ~,.30-(22 aoc AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FORAGENDA: JUNE 19, 2002 APPOINTMENT TO LODGING TAX ORIGINATING DEPT: CITY COUNCIL ADVISORY COMMITTEE ORIGINATOR: ERIC YOUNGER COUNCIL MEMBER DATE SUBMITTED: JUNE 7, 2002 2. CLEARANCES: (Comment on back if necessary) 2. EXHIBITS: EXHIBIT A: APPLICATION EXHIBIT B: RESOLUTION NO. 2772 O~¥RATIC~NS COMMITTEE APPROVED FOR SUBMITTAL BY 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: According to Resolution No. 2772, the membership of the Lodging Tax Advisory Committee may be reviewed on an annual basis by City Council. The committee must be equally comprised of businesses that collect the lodging tax and organizations involved in activities authorized to be funded from the lodging tax. It is recommended that Yong Kang fill the vacancy on the committee as a representative of a business responsible for collecting the lodging tax. 5. RECOMMENDATION: Move to approve and confirm the appointment of Yong Kang to the Lodging Tax Advisory Committee. 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION: PULLEDcouNCiL ~]DIRECTIVE:TABLED [-~ APPROVED [-q DISAPPROVED [-'q AMENDE~ ~/E: 8. AGENDA BILL NO.: ~o~'" / ] (~ 9. IMPACT OF NON-PASSAGE: If the appointments are not approved, then the Committee would not review fund requests or provide suggestions for fund allocations to City Council for the next fiscal year. 10. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 11. RESEARCH SOURCES: .................................... A APPLICATION FOR BOARDS/COMMISSIONS/COMMITTEES 239 4lb Street * ~r~merlon, WA 98~7" Phone [3601 478-5280 · Fax [360} 478.52.51 IOTE: As an applicant for THE LODGING TAX ADVISORY COMMITTEE, your name, address, and telephone number will be available to the press and public. You will be contacted before any action is taken on your appointment. Please type or print clearly) DATE: ___~-'-~-- ./4.-.* - E;~ 7___ lAME: '"/LON~ C__ ~"~:.~..~-q HOME PHONE:~/2/)-z~--/L~5 IOMEADDRESS:...~/ ~ ~/ ~'~ ~ ~/ STATE ~' ZIPCODE ~/';~ ..... )CCUPATION: ~)~ EMPLOYER: ~T~Z~] I~ VORKPHONE: ~ ~_~.~.....~-~"/O _EMAIL: ~/~t~L. ~ ~ ~H' d~ F~:. ~O~'~'~ ~USINESSADDRESS: ~:[~ ~/~~ ~ ~~/~7~'~ ~l~'- iDUCAT ON:_ .OCAL REFERENCES (NAME & PHONE NUMBER) /VHY ARE YOU APPLYING FOR THIS APPOINTMENT: Please turn page --~ :'mad: c~rv¢ouncilt~cl.bremertan.wa.us · Vv'eb: w~tw ci nramerton wa.us WHICH OF YOUR PERSONAL AND/OR PROFESSIONAL INTERESTS PROMPTED YOU TO APPLY FOR THIS APPOINTMENT: HAVE YOU SERVED ON ANY OTHER BREMERTON BOARD, COMMISSION, COMMITTEE OR TASK FORCE? IF YES, PLEASE LIST: f~*'w~?~*' '7-,~.~ /~,"v~ ,~/zy ~_-e,-~.~ t>-e/ er-:- ~ ~- ~p-t.>-_ zz. , PLEASE LIST YOUR QUALIFICATIONS FOR THIS APPOINTMENT (INCLUDE SKILLS, ACTIVITIES, I'RAINING, EDUCATION): NHAT ARE YOUR COMMUNITY INTERESTS (COMM!TTEES, ORGANIZATIONS, SPECIAL ~CTIVlTIES)? ! , /' t.->n':,n ,,~/~ .~'~--~ t'r--c ~ , \/ £..S/ , ?G ~z~. ~) . ,1 /' Ye welcome your willingness to serve Bremerton. Please return this completed form to: Council Office (360) 47g-52813 239 4'" Street (360) 4.78-5251 FAX Elremerton, WA 98337 Z-mail: cJtycouncJlF~.ci.bremerton.wa.us RESOLUTION NO. 2772 A RESOLUTION of the City Council of Bremerton, amending Resolution No. 2666 and appointing members to the Lodging Tax Advisory Committee, and setting criteria for application and review by the City Council and the Committee. WHEREAS, the City of Bremerton currently levies a lodging tax pursuant to Chapter 67.28 RCW; and WHEREAS, the State Legislature passed SSB 5867, enacted as Chapter 452, Laws of 1997, which modified or repealed some previous lodging tax authority, but also added new lodging tax by the City; and WHEREAS, SSB 5867 required that, in cities with a population over 5,000, any new imposition of a lodging tax enacted under Chapter 67.28 RCW be first submitted for consideration to a Lodging Tax Advisory Committee not less than 45 days in advance of final action on the lodging tax by the City; and WHEREAS, SSB 5867 was effective on July 27, 1997; and WHEREAS, SSB 5867 replaced the current lodging tax authority with a new statutory scheme; and WHEREAS, to insure continued authorization for the imposition of the lodging tax, the City created a Lodging Tax Advisory Committee by Resolution No. 2626; now, therefore BE IT RESOLVED BY THE BREMERTON CITY COUNCIL THAT Section 1. The membership of the Lodging Tax Advisory Committee shall continue to consist of at least five members appointed by City Council. In the event a member becomes incapacitated or is otherwise unable to serve, the member's organization may appoint a designee to serve in the member's stead until the City Council appoints a new member. One member shall be an elected official of the City who shall serve as chair, two or more members shall be representatives of businesses required to collect the tax, and two or more members shall be persons involved in activities authorized to be funded from the tax. The City Council will review the membership on an annual basis and make changes as appropriate by motion at a City Council Meetinq. 3? Section 2. The following criteria must be met annually and included in applications by all applicants and recipients or any use or disbursements of the Hotel/Motel Lodging Tax funds, and any reserve created with Tax funds: A. Maintain and present a Business Plan to the City Council. The plan must include an itemized annual budget with line items indicating where and how tax funds will be expended to enhance the tourism trade within the City of Bremerton. All of the requesting organization's sources of income shall also be reflected in the budget, and shall be given weight during the reviewing process. B. The Business Plan shall also include an on-going plan to collect funds by chargin9 admission, advertisement sales, grants, organizational memberships, private donations, or other means that would contribute to the increasing independence of the requesting organization. C. Any statutorily required proposal from the City Council to the Committee shall be dated and submitted in writing as shown in attached Exhibit "A", Application and Review Procedures. PASSED by the City Council of the City of Bremerton this _~~ day of ~ CAROL ARENDS Council President AGENDA BILL ' BREMERTON CITY COUNCIL 1. SUBJECT: FORAGENDA OF: June 19, 2002 Reappointment to the Planning Commission ORIGINATING DEPT: Executive ORIGINATOR: Mayor Bozeman DATE SUBMITTED: June 13, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: ~._.._~ ~ APPROVED FOR SUBMITTAL BY COUNCIL PRESIDENT: M^¥OP.: - 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Joan Dingfield's term on the Planning Commission will expire on June 21, 2002. It is recommended she be repppointed to another term. 5. RECOMMENDATION: Move to reappoint Joan Dingfield to another term on the Planning Commission. 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION: PULLED [] TABLED ~] APPROVED ~-~ DISAPPROVED [-] AMENDED [] DATE: COUNCIL DIRECTIVE: 8. AGENDA BILL NO.: 9. IMPACT OF NON-PASSAGE: 10. IMPACT ON STAFFING~ BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: 11. RESEARCH SOURCES: AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: June 19, 2002 Collective Bargaining Agreement between the City ORIGINATING DEPT: Human Resources And IAFF Local ~t437. ORIGINATOR: Carol Conley DATE SUBMITTED: June 13, 2002 2. CLE/A~CES: ~jo?Lnt on back if necessary) 3. EXHIBITS: Fire Chief: _ . --. Collective Bargaining Agreement City Attorne~ _~~ Proposed City Treasurer'.'L--X~ ENDORSE~ [] ~ATION [ ] APPROVED BY COUNCIL PRESIDENT,,9, ;FOR SUBMITTAL: MAYOR [_~,~"~::~ COUNCIL PRESDENT 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Pursuant to RCW 41.56, negotiations have concluded between representatives of the City and the IAFF bargaining unit, resulting in the attached Collective Bargaining Agreement (CBA). These negotiations have been discussed with Council in Executive Session. This CBA replaces the current one that expired on December 31, 2001. The new CBA's is for a three (3) year term, beginning January 1, 2002 through December 31, 2004. It has been ratified by the IAFF's membership on June 15, 2002. Council approval is required to implement this agreement, and a budget amendment will be necessary to fund this agreement for 2002 in the amount of $156,650. 8. RECOMMENDATION: 1. Motion to approve the Collective Bargaining Agreement by and between the City and the IAFF Local #437, January 1, 2002 through December 31, 2004, and 2. Motion to make the necessary amendments to the budget to fund the Collective Bargaining Agreement tbr 2002 in the amount of $156,650. 9. RESPONSIBLE OFFICIAL: Carol Conle~ C ENFORCEMENT OFFICIAL: Carol Conldllj,,,~ EXPIRATION DATE: 12/31/2004 REVIEW DATE: 07/01/2004 10. NOTICE OF ACTION: PULLED [ ] TABLED I ] APPROVED [ ] DISAPPROVEDI ] AMENDED [ ] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: (oveR) 2. CLEARANCE COMMENTS: 5. IMPACT OF NON-PASSAGE: Failure of the Council to ratify this CBA and provide funding would result in declaration of impasse and binding interest arbitration. 6. IMPACT ON STAFFING~ BUDGETS~ FACILITIES, EQUIPMENT OR OTHER RESOURCES: The cost of this Collective Bargaining Agreement will be approximately $156,650. Sufficient funds are available in the 2002/2003 budget to cover the cost of implementing this agreement. 7. RESEARCH SOURCES: CITY OF BREMERTON BUDGET ADJUSTMENT REQUEST Requesting Department: GENERAL FUND - FIRE Adjustment Number: 2002 Approval Authority Required: r-]Treasurer [-]Mayor r-- Fiscal & Budget [~Council SOURCE OF FUNDS: USE OF FUNDS: Description Amount .Description Amount Reduce: Increase: Salary Set-aside 123,080 Fire Personnel Costs 156,650 I ncrrease: Beginning Cash 33,570 NARRATIVE: This adjustment will add expenditure authority necessary to fund the new firefighter contract. The funding is provided from the balance of the monies set aside for personnel cost increases with the balance funded from beginning cash in excess of budget. Department Head Signature Date Director Signature Date Treasurer Comments: r-~ Recommended ~ Not Recommended ~ Treasurer's Signature ~ E~/~te Mayor Comments: ~ Recommended F-~ Not Recommended ~ Approved ~ Denied Mayor's Signature Date Fiscal & Budget Committee Comments: Approved ~ Denied Fiscal & Budget Committee Signature Date IAFF MEDIATION CITYIIAFF ECONOMIC SETTLEMENT FOP, RATIFICATION INCREMENTAL TOTAL PERSONNEL PERCENT COST COST BASE CHANGE 1/'1/2002 3,909,617 3.9% COLA 135,537 Increase Deferred Comp Match up to 3% 24,313 No Co-Pay reimbursement for Spouse/Dependents (3,200) City agrees to fund VEBA @ $75.00/month via deductions from LEOFF II employees pay. 0 TOTAL 2002 156,650 4,066,267 4.01% 11112003 2.5% COLA 90,640 Additional 24 hours holiday pay 26,824 Deferred Comp stays at 3% 608 Fire Investigation Stand By 11,302 Battalion Chief to get 5.5% above Captains 633 7/1 ~2003 Captain pay increased by 4% 7,280 TOTAL 2003 137,287 4,203,554 3.38% 1/1/2004 COLA 90% CPI-W June/June 2.5% to 7% 111,487 Additional 24 hours holiday pay 804 Increase Deferred Comp to 3.5% match maximum 17,822 Longevity: 5 years = 1% '~ 10 years = 3% 15 years = 4% 23,254 20 years = 5.5% 25 years = 7% 7/1/2004 Captains pay increased by 4% 7,426 Battalion Chief Change 633 Fire investigation Stand By 340 TOTAL 2004 161,766 4,365,320 3.85% R:\TREASR\RICH\LABOR NEGOTIATIONS\2002 FIRE SETTLEMENT 6/12/2002 9:35 AM With all changes agreed upon incorporated as of 6-11-02 PROPOSED CONTRACT FOR RATIFICATION BY AND BETWEEN CITY OF BREMERTON AND INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 437 JANUARY 1, 2002 1099 THROUGH DECEMBER 31, 2004 2~O~Ol With changes as of 5-30-02 TABLE OF CONTENTS TO THE COLLECTIVE BARGAINING AGREEMENT BY AND BETWEEN CITY OF BREMERTON AND INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 437 JANUARY 1, 2002 1999 THROUGH DECEMBER 31, 2004 2~01 PREAMBLE ................................................................................................................................... 3 ARTICLE 1 NON-DISCRIMINATION ......................................................................... 3 ARTICLE 2 RECOGNITION ......................................................................................... 3 ARTICLE 3 UNION DUES ............................................................................................ 3 ARTICLE 4 UNION ACCESS ........................................................................................ 4 ARTICLE 5 WAGES ...................................................................................................... 5 ARTICLE 6 HOURS OF WORK .................................................................................... 6 ARTICLE 7 OVERTIME ................................................................................................ 8 ARTICLE 8 VACATION LEAVE ............................................................................... 10 ARTICLE 9 HOLIDAYS ............................................................................................. 12 ,~d~TICLE 10 SICK LEAVE AND INDUSTRIAL DISABILITY ................................ 12 ARTICLE 11 OTHER LEAVE ...................................................................................... 15 PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 2 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January I, 2002 -December 31,2004 With changes as of 5-30-02 ARTICLE 12 RETIREMENT BENEFITS ..................................................................... 16 ARTICLE 13 INSURANCE BENEFITS ....................................................................... 16 ARTICLE 14 CLOTHING AND UNIFORM CLEANING ALLOWANCE ................ 17 ARTICLE 15 PERSONNEL PRACTICES .................................................................... 17 ARTICLE 16 GRIEVANCE PROCEDURE .................................................................. 21 ARTICLE 17 SEVERABILTY ...................................................................................... 22 ARTICLE 18 ENTIRE AGREEMENT .......................................................................... 22 ARTICLE 19 CONFLICTING PROVISIONS .............................................................. 23 ARTICLE 20 DRUG FREE WORKPLACE .................................................................. 23 ARTICLE 21 DEFERRED COMPENSATION ............................................................. 27 ARTICLE 22 LABOR MANAGEMENT COMMITTEE ............................................. 27 ARTICLE 23 TEMPORARY FIREFIGHTER PROGRAM ......................................... 28 ARTICLE 24 PHYSICAL FITNESS PROGRAM ........................................................28 ARTICLE 25 TOBACCO FREE WORKPLACE ..........................................................28 ARTICLE 26 DISCIPLINARY ACTION ...................................................................... 28 ARTICLE 27 TERM ...................................................................................................... 28 APPENDIX A .................................................................................................................. 29 PROPOSED CONTRACT FOR ILATIFICATION COLLECTIVE BARGAINING AGREEMENT !~i\GE 3 BY AND BETWEEN TIlE CiTY OF BREMERTON and IAFF LOC.\L 437 /ammo' 1. 2002 --December 31,2004 With chanCes as of 5-30-02 COLLECTIVE BARGAINING AGREEMENT BY AND BETWEEN CITY OF BREMERTON AND INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 437 January 1, 2002 1-999 Through December 31, 2004 2001 PREAMBLE This Agreement is made and entered into pursuant to the provisions of RCW Chapter 41.56 by and between the City of Bremerton, a municipal corporation of the State of Washington, hereinafter known as the "City", and the International Association of Fire Fighters, Local No. 437, hereinafter known as the "Union" for the purpose of setting forth the wages, hours and working conditions which shall be in effect during the term of this agreement for employees included in the bargaining unit described in Article 2 below. ARTICLE 1 NON-DISCRIMINATION 1.1 NON-DISCRIMINATORY APPLICATION: -The provisions of this Agreement shall be applied equally to all employees in the bargaining unit without discrimination as to age, sex: marital status, race, color, creed, religion, national origin, political affiliation.: or mental, physical or sensor~ disability ~'~:~ unless based upon a bona fide occupational qualification. 1.2 DISCRIMINATION ALLEGATIONS: An employee who believes that he or she has been the subject of unlawful discrimination prohibited in Section 1.1 above shall seek relief through the appropriate local, state, or federal agency charged with investigating such matters: and shall not process such complaints through the Grievance Procedure of this Agreement. 1.3 NON-DISCRIMINATION - UNION ACTIVITY: --The provisions of the Agreement shall be applied equally to all employees in the bargaining unit without discrimination as to Union affiliation or activity or lack thereof. The City and the Union shall each be responsible for complying with this provision. An employee who believes that he or she has been subject to discriminatory treatment prohibited by this provision may process such an allegation through the Grievance Procedure of the Agreement. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 4 BY AND BETWEEN THE CITY OF BREMERTON and iAFF LOCAL 437 Janum_'y i, 2002 ~December 31. 2004 q8 With chan~es as of 5-30-02 ARTICLE 2 RECOGNITION 2.1 The City recognizes the Union as the sole and exclusive bargaining representative for the purpose of negotiations concerning wages, hours and working conditions for all employees in classifications set forth in Appendix A_. and such classifications as may be added to the bargaining unit during the term of this Agreement by mutual agreement of both parties. ARTICLE 3 UNION DUES 3.1 DUES DEDUCTIONS: The City will deduct monthly Union dues and initiation fees uniformly required of membership from the pay of those employees who provide written authorization to the City to make such deductions. The City will transmit the total amount of deductions to the Treasurer of the Union. 3.2 DURATION OF AUTHORIZATION: Written employee authorizations will remain in effect during the term of this Agreement unless an employee revokes authorization by providing thirt,/(30) days written notice to the City and the Union.: 3.3 INDEMNIFICATION: The Union shall indemnify and hold the City harmless from any and all liability resulting from the administration of this Article. ARTICLE 4 UNION ACCESS 4.1 CONDUCT OF UNION BUSINESS: Union business, such as handling grievances and other legitimate routine matters, may be conducted on Fire Department premises, provided that such business does not interfere with Fire Department operations and is authorized by the Fire Chief. Scheduled Union meetings may be held in Fire Department facilities provided that such meetings do not interfere with Fire Department ~em~ac~operations. 4.2 UNION REPRESENTATIVES: The Union shall provide written notice to the City of the names of the officials authorized to represent the Union immediately upon their election or appointment. The City will provide reasonable access to City premises to such authorized representatives for the purpose of handling grievances and other legitimate Union business, provided that such access does not interfere with the work and duties of Union employee representatives or other on-duty employees. 4.3 UNION REPRESENTATIVES RELEASE TIME_-The Fire Chief or designee shall grant the three (3) primary Union officers time off with pay pursuant to Section 4.2. not to exceed 72 hours each, annually_, for the following meetings and conferences: PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 5 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 --December 31. 2004 With changes as of 5-30-02 WSCFF Legislative WSCFF Spring Education Seminar WSCFF Annual Convention IAFF Bi-annual Conference (President only) 4.4 UNION BULLETIN BOARDS: The City will permit the Union to place one (1) bulletin board for Union use at a designated location at each fire station. No materials shall be posted except notices of meetings and elections, results of elections, changes in Union bylaws, notices of employee social occasions and similar Union notices, letters, and memoranda. The City shall provide a designated, mutually agreeable accessible and convenient location for installation of bulletin boards at each fire station. The Union will purchase uniform, jointly specified bulletin boards for each station. The bulletin boards will be for the exclusive use of the Union. Only those items specifically approved by the Union will be posted. ARTICLE 5 WAGES 5.1 Effective January 1, 2002, w~Cages shall be as identified slated in Appendix A, which reflects an increase of 3.9% 3.25% over 2001 ! 998 wages. 5.2 Effective January_ 1, 2003, wages shall be as identified in Appendix A. which shall reflect an increase of 2.5% above 2002 wages. 5.3 Effective January 1, 2004, wages shall be identified in Appendix A, which shall reflect an increase based upon 90% of the CPI-W for the Seattle/Tacoma/Bremerton area as of June 30, 2003, with a minimum of no less than 2% and a maximum of no more than 7%. 5.4 Effective January 1, 2004, the longevity schedule for members of the bargaining unit shall be as follows: Completion of 5 years service = 1.25% Completion of 10 years service -- 2.5% Completion of 15 years service = 3.75% Completion of 20 years service = 5% Completion of 25 years service = 6.5% 5. !. I. 15.5Advancement through the pay vmge rates from the First Step through the Final Step of the pay range ~ will occur upon completion of the prescribed number of full year(s) of continuous employment since the employee's last pay vqage_' placement, provided, however: that the employee's overall rating on his/her annual evaluation "Meets Expectations" or "Exceeds Expectations..-the City may withhold a step increase for work performance that does not "meet expectations"." A step increase may be withheld tbr a n~a.ximtu-n of twvelve (12) months, dufin~ which time the employee will receive monthly evaluations. The employee's inunediate PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 !anuary I. 2002 --December 31,2004 With chanaes as of 5-30-02 supervisor will notify the employee in writing of expected failure to meet expectations at least thirty (30) days prior to the due date of the work performance evaluation. If such notice is not provided the step increase will not be withheld. The withholding of a step increase will not change the employee's current anniversary_ step date for pay pm-poses. In the event that the employee "meets expectations" at one of the monthly evaluations during the subsequent 12 months, they will receive a step increase effective as of the due date of that monthly evaluation. It shall be understood that the increase will not be applied retroactively to the month(s) in which the employee received a ratin~ below "meets expectations" e;'alaat:,onc;. The denial of a step increase is subject to the grievance procedure. In the event an employee is on approved leave of absence without pay, the employee's next wage step advancement date will be extended by the actual number of days the employee was absent on such leave. 5.55.6 A new employeeZ'~mg:e-mle shall be hired set _at the first year step,.., however. ..... v ...... a new employee who has prior paid work experience as a full time Firefighter or Firefighter/Paramedic in a fire service which operates a full time emergency fire/medical response service using paid employees, may be hired kave his-or-be~wage-mte-seCat the second year or third year step based upon relevant years and type of prior experience. Placement at second or third year steps shall be determined by a review committee consisting of the Fire Chiet; Assistant Chief. and one (1) Union representative. 5.1.1.25.7 A Fire Fighter/-Paramedic with no experience shall be hired se~ at the first year step. A Fire Fighter/-Paramedic with one (1) year minimum paid fire experience shall be hired set at the second year step, with their third $~4 year step in six (6) months. solely at the discretion of the Fire Chief. 5.1.25.8 A Firefighter/EMT with no experience shall be hired set at the first year step. A Fire Fighter/-EMT with one,l) year paid fire experience shall be hired set at second year step, with their third $ year step in six (6) months solely at the discretion of the Fire Chief. Any variation from the above will require ~' ,,,. o~,~v~,,,~ to approval bx.' the review committee as outlined in section 5.1 l. per **"~ ~' 5.1.1. of this Article. 5.1.35.9 FIRE PREVENTION: An employee who is assigned to perform fire prevention work shall be compensated at the Firefighter/Fire Prevention base pay vmge rate listed .~in Appendix A for the duration of the assignment. 5.25.10 EQUIPMENT MAINTENANCE O_I~!;: SELF-CONTAINED BREATHING APPARATUS (SCBA) MAINTENANCE: An employee who is assigned to perform either equipment maintenance work or_t' SCBA maintenance work shall be compensated at the Firefighter/Equipment Maintenance base pay ~ rate listed ..........t-~,-~ ,~,,~,~;*'~ in Appendix A for the duration of the assignment. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 7 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1. 2002 ~December 31,2004 With changes as of 5-30-02 5.1.15.1.1 ACTING OFFICERS: An employee who serves as an Acting Officer fo~ during a twenty-four (24) hour shift '-~ .......... · ,j .... : ........... shall be compensated as outlined inper section 5.1_2.1 below. In order to be eligible to serve ~ as an Acting Officer, an employee must be listed on the City's current appropriate eligible register and must volunteer for the assignment. The use of Acting Officers will not be used as a permanent alternative to tbr hiring a full complement of officers. At least one officer on duty must be regularly appointed to the position. In the event that two (2) acting Lieutenants are on duty with a regular Lieutenant, the regularly appointed Lieutenant shall be assigned to Station 1. In the event an Acting Captain is required, thc employees on the eligible list for Captain shall be contacted first and given the opportunity to fill the position as needed. 5.11.1 Acting Officers Compensation: 0 through 1 hour No Compensation After 1 through 4 hours 1 hour of overtime After 4 through 12 2 hours of overtime After 12 through 24 hours 2.5 hours of overtime In no case shall there be more than 2.5 hours of overtime per Acting. Officer position. In the event of a split shift between two (2) employees, the maximum overtime paid shall be three and one-half (3.5) hours. 5.1.15.12 In the event an employee is assigned as an h~structor to the Washington State Fire Service Training Center to ~-,,,~ ..... 0., -..,o-~,-,,~.,,;"~* .... *'"' the following provisions shall apply for the term of the assignment: 5.1.2 5.12.1 The employee who is at the rank of Firefighter, Firefighter/Maintenance and/or Firefighter/Paramedic, shall have their compensation increased to Lieutenant at the same step in. the Lt. pay band. Example: FF/PM a~ Step 4 would go to Step 4 of Lt. pay band. 5.12.2 If the employee is at the rank of Lieutenant, he/she shall have their compensation increased to Captain at the san~e step in the Capt. pay band. Example: Lt. at Step 4 would go to Step 4 of Capt. pay band. 5.1.3 5.12.3 If the employee is at the rank of Captain, Captain Medical Officer and/or Captain Fire Marshal, their compensation shall not be increased PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January I. 2002 ~December 31,2004 With changes as of 5-30-02 ...................... ~ ....... ....... endix for Fire Fi~ter/P~medic includes a sixth (6th) step.. To be eligible for this step the employee must have completed ten (10) ye~s continuous se~ice as a fire Fighter/Paramedic with the City. The sixth step will be two and one half percent (2.5%) above the fi~h step; ~5.16 All newly hired egmployees hired ~='" *~ ~=~'~*; .... a~,~ ~r ,h; ............ * will utilize automatic deposit of their paychecks during their term of employment with the City. 5.155.17 Effective January 1. 2003 the Training Officer position shall be upgraded to Ba~alion ChieL and the pay rate t~)r this position shall be five ~d one-half percent (5.5%) above the Captain rate of pay. Testing will be conducted pursuant to A~icle 15. Section 15.7.1. 5.165.18 EffEctive July 1,2003. the rate of pay tbr Captain shall be increased by ~bur percent 5.175.19 Effective July 1, 2004, the rate of pay for Captain shall be increased bv tbur percent (4%). ARTICLE 6 HOURS OF WORK 6.1 NORMAL HOURS OF WORK- SHIFT PERSONNEL: Pursuant to Section 207 (k) of the FLSA, the w'ork period for shift persormel is 27 days, which is equivalent to 204 hours. The normal hours of work for shift personnel shall be an average of 50.19 hours per week. 6.2 NORMAL HOURS OF WORK - NON SHIFT PERSONNEL: The normal hours of work for non-shift personnel shall be 40 hours per week. 6.3 SHIFT WORK SCHEDULES: On or about January 1~t of each year, the Fire Chief shall assign shift personnel o~';~ ...... v ..................... s ....to one of three shifts: A._ B or C. A shift assigmnent for an employee shall be worked as one (1) day (24 hours) on duty followed by two (2) days (48 hours) offduty: and continuing in that pattern for a period of eight (8) ~me-¢:)4 consecutive on-duty shifts; provided this shall not apply to shift transfers. The next immediately scheduled shift shall be an off-duty Kelly day (9th 4-0th scheduled shift). Shift hours begin at 0800 hours and PROPOSED CONTRACT FOR I~ATIFI('ATION COLLECTIVE BARGAINING AGREEMENT PAGE 9 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January !. 2002 ~December 31. 2004 53 With changes as of 5-30-02 conclude at 0800 hours each day. Non-shift personnel shall normally be scheduled to work Monday through Friday during such hours as are assigned by the Fire Chief. 6.4 BEGINNING OF YEAR TRANSFERS: The Fire Chief may transfer as many employees as the Chief deems appropriate from one shift or non-shift assignment to another at the beginning of each calendar year. The Chief shall provide fifteen (15) days notice of all such transfers. 6.5 MID-YEAR TRANSFERS: During the calendar year, the Fire Chief may transfer each non-probationary employee once from one shift or non-shift assigm'nent to another as a permanent assigm'nent or may transfer each non-probationary employee once on a temporary basis to another shift or non-shift assignment and subsequently return the employee to his or her original assignment. The Fire Chief shall provide reasonable prior notice to a transferred employee, provided that emergency transfers shall be accomplished with such prior notice as is feasible under the circumstances. An unlimited number of mid-year transfers of non- probationary employees which are mutually agreed-to in writing between the Fire Chief and the employee are permitted. The Fire Chief may transfer each probationary employee an unlimited number of times from one shift or non-shift assignment to another during the period of probation. 6.6 SHIFT AND/OR KELLY DAY EXCHANGES: An employee who has completed six (6) full months of employment with the Department may exchange full or partial shifts or full Kelly Days with another employee of the same permanent rank provided that w~aen: ~.~. 15.6.1.1 T~he change does not interfere with the duties and responsibilities of the employees in their positions, and ,5.5.26.6.2 .Im~ided-~hi~T_~he immediate supervisors of such employees find that no such interference will occur as the result of a mutually agreeable exchange. 6.6.3 Shift and/or Kelly Day exchanges in excess of twelve (12) per calendar year require the prior approval of the Fire Chief or designee. The Fire Chief may overrule the findings of immediate supervisors in the event that the Department's service or training needs require specific employees to be on duty during their assigned shifts. Full Kelly Day exchanges may be granted to employees of unequal permanent rank who have obtained the prior approval of the Fire Chief or the Chief's designee. Shift exchanges shall be considered as substitutions under FLSA 29 U.S.C. 207 (p), and the City shall have no obligation to keep records of such exchanges aor to revise hours of work to reflect the substitutions. 6.6.4 In the event an employee is unable to work a shift exchange for any reason (i.e., sick leave, emergency leave, bereavement leave, jury duty, witness and military I~ROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT I~AGE I 0 BY AND BETWEEN THE CITY OF BREMERTON and 1AFF LOCAL 437 January l, 2002 -4)ecember 31,2004 5q With changes as of 5-30-02 duty leave), the employee shall be responsible to "pay back" the time to the City within ninety (90) days. ARTICLE 7 OVERTIME 7.1 OVERTIME DEFINED: Overtime is all required and authorized work performed in excess of an employee's normal work schedule. Overtime includes required training, instruction, equipment/SCBA repair, callback and other such work which is required and authorized by the City and is performed during an employee's normally scheduled off-duty time. ~OVERTIME COMPENSATION: Overtime work shall be compensated at the rate of one-and-one-half (1-1/2) times an employee's hourly rate in cash or in compensatory time. The form of overtime compensation shall be at the election of the employee unless otherwise expressly provided by the terms of this Article. 7.3 HOURLY RATE DEFINED - SHIFT EMPLOYEE: A shift employee's hourly rate shall be computed as follows: Semi-monthly wage rate multiplied by twenty- four (24) pay periods. The result shall be divided by the result of fifty-two (52) weeks multiplied by the annual average hours per week for shift employees. 7.4 HOURLY RATE DEFINED- NON--SHIFT EMPLOYEE: A non-shift employee's hourly rate shall be computed as follows: Semi-monthly wage rate multiplied by twenty-four (24) pay periods. The result shall be divided by the result of fifty-two (52) weeks multiplied by forty (40) average hours per week for non- shift employees. 7.5 CALL BACK OVERTIME: In the event an employee who has left the work place is called back to duty for a period of time which is less than two (2) hours, the employee shall receive a minimum of two (2) hours of overtime compensation. After contact, if the employee is unable to report to work within sixty (60) minutes: their position on the call back-list shall be passed over without being charged an overtime opportunity. 7.67.6 HOLD OVER AFTER NORMAL DUTY SHIFT: In the event an employee is held over after the expiration of his or her normal duty shift, the employee shall be compensated at the overtime rate for time held over. 7.7 COURT AND/OR SUBPOENAED APPEARANCES' An employee who responds to a subpoena or appears in Court in a case on behalf of the Citx/wNch .... ~, ........... ~, ...... ~, ...... ~,ao .... ~, ......................... ~ ono u me shall receive a minimum of two (2) hours of overtime compensation for such appearances. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 ,lanuary I, 2002 ~)ecember 3 I, 2004 With changes as of 5-30-02 7,97.8 ON CALL FIRE INSPECTOR/DUTY CHIEF: Aan employee who is assigned to serve as On Call Fire Inspector/Duty Chief On Call shall receive ten (10).eight-(g) hours of overtime pay,.,~,,to~.o~..vL:*.' .... *;'--~-,.,. at time-and-one-half for each seven (7) day period so served. ,a,,~. ........ , .... *:--~ shall ~-~ ~o~ ..... '~'~-; ....... ~ month .~- ,~ ..... ~ ~o ,~ ........ ;~ ~ .... ~.h · .~o ~ ..... ~ -~ the event that an On Call Fire Inspector/Duty Chief is called out, the employee shall receive a ~nim~ of ~o (2) ho~s of ove~im¢ pay at time-and-one-half for each call out.-Eflbctive upon ratification, if the On Call Fire InspectoffDuty C~ef is required to be on call on a holiday, he/she shall regeive two (2) hours paid ove~ime. The shift Captain shall be eligible to be Acting Duty Chiefi 7.9 LIMITATION OF COMPENSATORY TIME: A non-shift employee may accumulate up to two hundred forty (240) hours, and a shift employee may accumulate up to three hundred fourteen (314) hours of compensatory time. Compensatory time shall be granted unless it is unduly disruptive.~ employee may request the Fire Chief to approve cash payment for accumulated compensatory time. Upon receipt of such approval, compensatory time shall be paid out at the employee's hourly rate for each hour of compensatory time converted to cash. 7.1.1.7.10 COMPENSATORY TIME USAGE: An employee desiring to utilize accrued compensatory time shall be required to complete and file a Leave Request form requesting Compensatory leave with the Chief or his designee not less than five (5) shifts prior to the requested date(s) of usage, except for holidays. Employees desiring to use compensatory time on a city observed holiday shall submit a Leave Request not more than fifteen (15) shifts in advance of the holiday requested. On the fifth (5th) shift prior to the holiday, a lottery will be held among the employees who have submitted a Leave Request for usage of compensatory time for the holiday. It shall be understood that no more than a full 24 hours aggregate of compensatory leave shall be permitted per shift, regardless of the number of employees taking compensatory_ time that shift. (EXAMPLE: One (1) employee taking comp time for a full 24 hour shift, would count the same as 3 employees. each taking off 8 hours the same shift). Usage of compensatory time beyond the 24 hours aggregate described above, may be granted to other bargaining unit employees on the same day, unless it would cause overtime. The parties agree that there will be no forced overtime in order to provide shift coverage due to use of compensatory leave. Except for holidays, should more than one employee request the sonde time ofT, the employee whose form was submitted first will be granted the compensatory time off. 7.11 OVERTIME WORK ASSIGNMENTS: Overtime work will be assigned to employees on the basis of the Fire Service and Emergency Medical Service needs. Overtime will be offered to employees by classification and/or by possession of the special skills required to provide coverage of needed services. A minimum strength PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 12 ~tY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 lanuary I, 2002 -4)ecember 31, With changes as of 5-30-02 of three (3) officers/acting officers, two (2) Paramedics_. and six (6) Firefighters will be used as a guideline in considering overtime assignment~ :L-d:_c_97.~l 1.1 - CENTRAL KITSAP FIRE RESCUE (CKFR) CONTRACT EFFECT ON MANNING: While the CKFR contract is in effect, a minimum strength of three (3) officers/acting officers, three (3) paramedics and six (6) fire fighters will be used as a guideline in considering overtime assignments. 7,1..27.12 CALLBACK PROCEI)URE: Callbacks for overtime shall be made from the overtime callback chart. The order of callback shall begin with the employee who holds the same rank as is needed to maintain minimum on-duty strength= and who has been presented with the least number of opportunities to work overtime= and shall proceed through the callback chart on that basis until an employee holding the appropriate rank agrees to work. In the event no employee of the same rank is available to work, the order of callback shall proceed to the employee who has been presented with the least number of opportunities to work overtime, regardless of rank, and shall proceed through the callback chart on that basis until an employee agrees to work_, or is ordered to work in accord with the provisions of this section. In the event that two or more employees have had an equal number of opportunities to work overtime, the most senior employee shall be called first. 7.9.17.13 CALLBACK RECORDKEEPING: .Upon the Captain or his,~her designee personally contacting an employee with an offer of overtime work, the contact shall be noted on the overtime card file, which shall be used to maintain records of calls made and responses received. An employee who refuses an offer of overtime work shall have his or her record reflect the fact that an overtime opportunity was presented and refused by the employee. In the event an employee is presented with an opportunity to work overtime for a partial shift, each opportunity of fifteen consecutive (15) hours shall be considered an overtime work opportunity. Upon contacting an employee with an offer of overtime work, the contact shall be noted on the overtime card file, wtfich shall be used to maintain records of calls made and responses received. An employee who refuses an offer of overtime work shall have his or her record reflect the fact that an overtime opportunity was presented and refused by the employee. 17.13.1REFUSAL OF OVERTIME: .Upon receiving an offer of overtime work, an employee may decide to refuse the first offer or work the overtime. Each acceptance and the second refusal shall be recorded as an opportunity to work overtime. Only one (1) pass per twenty--four (24) hour period shall be permitted. 7.13.2 OVERTIME REFUSAL EXCEPTIONS: An on-duty employee or an employee who refuses an overtime work opportunity which occurs during.'- the employee's paid leave cycle, during a shift trade cycle, during a Kelly Day cycle, Labor Conferences/Negotiations tbr the Union Executive PROPOSED CONTRACT FOR IL&TIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 13 BY AND BEq'\VEEN THE CITY OF BREMERTON and IAFF LOCAL 437 ~lanuary ~, 2002 --December 31, 2004 __ ~ 5 With chan~es as of 5-30-02 Board= or during and employee's scheduled education time= shall not have the offer recorded as an opportunity refused on his or her record. gx.r.9M-17.13.3 ORDERED OVERTIME:In the event that no employee accepts an offer to work overtime after completing one full rotation through the overtime chart, the first employee contacted on the second time through the rotation shall be ordered to work the overtime provided that such an employee is not on a paid leave cycle, on a shift trade cycle, on a Kelly day cycle, Labor Conferences/Negotiations for the Union Executive Board or on an employee's scheduled education time. 17.13.4CHRISTMAS OVERTIME: Overtime on Christmas day shall not be counted as an overtime opportunity. All other overtime provisions shall apply. 7.1017.14 EMERGENCY CALL BACK: Notwithstanding the provisions of Section 7.9 above, the Fire Chief or the Chief's designee may order personnel back to work for the purpose of responding to emergencies in such numbers and by using such methods as the Chief or the Chief's designee deems appropriate to the circumstances. ARTICLE 8 VACATION LEAVE 8. t 8.1.1 VACATION ACCRUAL: Employees shall accrue vacation leave time with pay for all regular hours time worked pursuant to the following schedule: NON-SHIFT EMPLOYEES SHIFT EMPLOYEES Years of VL Hrs. Annual ~ Total VL Hrs. earned Annual Holidays Total Service earned per Accrual Earned per pay Accrual Earned pay Shift Non,shift employees employees Hire - 5 ,/rs. 4.333 hrs 104 hours 88 hours 192 hours 6.066 hours 146 hours 88 hours 234 hours 6th- 10a' yr. 5.666 hrs 136 hours 88 hours 224 hours 7.933 hours 190 hours 88 hours 278 hours 11m- 15'h yr. 7.333 hfs 176 hours 88 hours 264 hours 10.266 hours 246 hours 88 hours 334 hours 16'h-20a' yr. 8.600 hfs 206 hours 88 hours 294 hours 12.040 hours 289 hours 88 hours 377 hours 21%rs or > 8.666 hfs 208 honrs 88 hours 296 hour.__!s 12.133 hours 291 hours 88 hours 379 hours 8.2 VACATION ELIGIBILITY: An employee becomes eligible to take accrued vacation leave time upon completion of six (6) months of continuous employment. In the event an employee resigns or is discharged prior to the completion of six (6) full months of employment, any accrued vacation leave shall be forfeited. Vacation leave 'time must be fully accrued prior to the time an employee utilizes ["d,.,~.ief; any vacation .time-leave e-Pt'. PROPOSED CONTRACT I:OR RATIFICATION COI.LECTIVE BARGAINING AGREEMENT PAGE 14 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January I, ,00~ -t)ecember ~1 2004 With changes as of 5-30-02 8.3 VACATION SCHEDULING: Annual vacation leave shall be authorized by the Fire Chief or the Chief's designee. Non-shift personnel shall schedule vacation leave by mutual agreement of the employee and the Fire Chief or the Chief's designee. Shift employees shall select their vacation choices by seniority within shift assignment and through application of the following rules: 8.3.1 MINIMUM VACATION LEAVE REQUESTS - SCHEDULED VACATION · A Sscheduled vacation leave shall be taken in a minimum of eight (8) hour blocks. 8.3.2 8.3.3 MINIMUM VACATION REQUESTS - SAME DAY REQUESTS: "Same day" vacation leave shall be taken in a minimum of one (1) hour increments. Full shift requests shall have priori~ ov.er partial shift requests for o~ same day vacation leave. Stone day requests for vacation leave will not be granted if the shift is at a minimum staffing level. VACATION LEAVE SELECTION Each employee may select a vacation leave consisting of nine (9) connected-twenty-four (24) hour shifts plus the employee's regularly scheduled Kelly Day. Two (2) vacation slots and unused Kelly Days-shall be available for pre-selection for each day of the year from which selections can be made. A lottery shall be held in order to allow employees to compete for the unused Kelly Days. It shall be understood that employees Who receive an unused Kelly Day via lottery, shall lose the Kell. v Day in the event that it subsequently becomes filled due to a new hire or TIMI~G OF VACATION LEAVE SELECTION: Yacatio~ selections-will begin December 1st by seniority, for the following calendar year._,--amt Upon being personally contacted, t:the ea~. employee will be provided up to twenty-fo, ur (24) hours a,'~e (!) sk~ik to make his/_ or her selections. Any selection not completed within the allotted time shall constitute a pass. Vacation selections shall continue through seniority rotation until all employees have selected all shifts they intend to take during the next calendar year, but in no event later than March 31st. At~ter March 31st of any yem', aah employee may request vacation leave at may time during the balance of the calendar year, however, approval shall be subject to ......... } .......... e, a ................ ,.o,, ~o _ v ......... ~, ..... or not the shift is not at a minimum staffintz on a same day selection. 8-.3~8.3.6 CANCELLATION OF VACATION SELECTION BY AN EMPLOYEE: In the event a vacation selection which has been made and approved is subsequently canceled by an employee, the vacation selection so canceled shall be made available for selection to other employees as soon as feasible, provided PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMEN'F PAGE 15 BY AND BETWEEN THE CiTY OF BREMERTON and IAFF LOCAL 437 January i. 2002 ~ecember 31,2004 With changes as of 5-30-02 however~..,,~o'-~ vl,,,;a;~,-l,,.,s that the shift is not at a minimum on a same day selection. The canceled vacation slot shall be selected by lottery fi'om the employees on the same shiftene shift at 'a time, 8.4 MAXIMUM VACATION LEAVE ACCRUAL: The maximum accrual number-of vacation leave accrual hours that any employee shall be allowed to carry forward from one calendar year to the next is as follows: Years of Non-shift Personnel Shift Personnel Continuous Employment Maximum Balance Maximum Balance 0 through Five (5) years 160 hours 210 hours More than Five (5) years 240 hours 315 hours 8.58.4.1 8.5 VACATION LEAVE BALANCE GREATER THAN MAXIMUM ALLOWABLE: In the event an employee has been prohibited from taking sufficient vacation time to reduce his or her vacation balance to the maximum allowable carryover at the end of a calendar year, any hours in excess of 36 hours the excess ho"~s shall be paid out in cash at the employee's straight time h ly th 1 t pay i J ~..,~,~ .....,,, ......... .~,;~.. ,.,' a.~ r;rc our rate e as n anuarv., ..... d .h .... submit a wti~en request to ~e Fire Chief tbr vacation pay out speci~4ng the reason(s) for which they have been unable to take vacation leave in order to reduce their balance to the maximum allowable carryover. An employee whose accrued vacation leave exceeds ~e maximum c~yover b~ce of 36 hours ~at the end of the calend~ Year because he/she failed to timely request vacation leave, or waited until October 1.' or later to :request adequate vacation leave to reduce his/her balance to the maximum allowable, shall have any excess leave scheduled by ~e Chief or hisser desi~ee with 72 hours advice notice, within the months of J~u~y, Febm~y or March of the follo~ng The City ~d the [AFF agree to reevaluate this provision at the end of each comract ye~. 8.4.1 SCHEDULE CHANGE BALANCE ADJUSTMENT: 8.4.1.1 NON-SHIFT TO SHIFT: In the event an employee's normal hours of work are permanently changed from a non-shift schedule to a shift schedule, the employee's accrued vacation hours upon the date of change shall be increased as follows: Accrued Hours X 1.5 = Employee's accrued vacation hours balance. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January [, 1002 ~Oecember 3 [, 2004 With changes as of 5-30-02 8.4.1.2 SHIFT TO NON-SHIFT: In the event an employee's normal hours of work are ?ermanentl. y changed from a shift schedule to a non-shift schedule, the employee's vacation hours upon the date of change shall be decreased as follows: Accrued Hours/1.5 = Employee's Vacation Balance. 8.78.6 VACATION BUY-BACK: Upon the approval of the Fire Chief, an employee may receive cash compensation at the employee's straight time hourly rate for any accrued and unused vacation time: Requests for payment shall be made in writing to the Fire Chief during the 1st half ~of each yem' (January 1st ttu'oueh June March 30th -1-st), and may not be used for canceled vacations. 8.7 VACATION PAY-OUT: Upon the retirement or termination of an employee who has served six (6) continuous full months of employment or more, or upon the date of an employee's disability retirement, the accrued vacation leave hzurs of such aa employee will be paid to the employee in a cash lump sum payment. ARTICLE 9 HOLIDAYS 9.1 HOLIDAYS OBSERVED: The following holidays shall be observed by the City: New Year's Day Labor Day Martin Luther King's Birthday Veteran's Day President's Day Thanksgiving Day Memorial Day Day after Thanksgiving Independence Day Christmas 9.1.1 OTHER HOLIDAYS: In addition, any other holiday proclaimed by the federal or state government, provided that the City takes official action to have such holiday also observed by the City. 9.1.2 FLOATING HOLIDAY: Each employee shall be allowed one (1) additional holiday to be observed by the employee on a day mutually agreeable to the employee and the Fire Chief. 9.1.3 HOLIDAY COMPENSATION - FOR NON-SHIFT PERSONNEL: Non-shift personnel shall receive eight (8) hours of time off with pay for each holiday observed by the City and for a floating holiday of each employee's choice. If a holiday observed by the City falls on a Saturday, the holiday will be observed on the preceding Friday. If a holiday falls on a Sunday, the holiday will be observed on the following Monday. 9.1.4 HOLIDAY COMPENSATION--FOR SHIFT PERSONNEL: Shift personnel shall receive 3.666 hours added to their vacation leave accrual rate per pay period in lieu of all holidays. Accumulation and taking time off in lieu of holidays shall be accomplished in accordance ;vith the vacation leave provisions set forth in Article 8. In lieu of additional .cxu"a compensation for [hose employees scheduled to PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 17 BY ,AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January l, 2002 --December 31. 2004 __ _ With changes as of 5-30-02 working, on -New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas; the following will apply: The City will pay 24 hours of straight time pay to all bargaining unit members ? at dh ~ r~:~:,.~., ..... ,.~ ;., 4-999~, at the 5th step Fire Fighter pay rate :- 'mm~ m~d .~c~(~ ....~ ....... · ~ ................. ~ ,,~, provided that the employee is on the payroll on 10/31 of the year; and has been working in a 24 hour shift position for six (16) months during that calendar year. The 24 hours' pay will be included in the first pay_, check in November 1 !/7 ....... v~,:~,~,~.,~'~-~- each year. 9.1.5 Effective January 1. 2002 the City will pay all bargaining unit members an additional 24 hours of straiRht time the 1st pay period in December. in lieu of a reduction in hours, subject to the same terms and conditions as outlined in the above section. ARTICLE 10 SICK LEAVE AND INDUSTRIAL DISABILITY 10.1 SICK LEAVE ACCRUAL: 10.1.1 NON-SHIFT EMPLOYEES: Non-shift employees shall accrue sick leave time with pay at the rate of four (4) hours for each regularly scheduled pay period. Partial pay periods will be pro-rated to the closest full hour. 10.1.2 SHIFT EMPLOYEES: Effective as of July 1, 2002, the annual accrual for shift personnel will be eight (8) five and olle qua,Xer (5.25) hours per pay period. Partial pay periods will be pro-rated to the closest full hour. 10.2 DONATIONS OF VACATION LEAVE: Donations of Vacation leave permit employees to aid any City employee who is suftbring frown an extraordinary or severe illness, injury, impairment, physical or mental, condition, or who's spouse or minor children (under the age of 18) are suffering from a life threatening iniury or illness, or in the event of their death, which has caused or is liken to cause the employee to take leave without pay or to terminate his or her employment prior to a determination that the affected empl. ovee is not expected to recover to ~m extent that will enable the employee to resume his or her normal duties or the duties of another position with the City or another employer. 10.2.1 ELIGIBILITY: An employee who (1) is suffering :f¥om an illness or iniury causing his or her extended absence from work., or who's spouse or minor children (under the age of 18) are sufferine from a lif~ ttu'eatening injury or illness, or in the event of their deaihr,smddeath, and (2) who has depleted or will shortly deplete his or her total available accrued vacation.., sick and floatina holiday leave, may request donations of vacation leave. 10.2.2. CRITERIA FOR APPROVAL: A request t'or donations of vacation leave shall be ) ' submitted to the requestin~ employee's Department Head accompanied bv medical documentation Vel-it'vin~ the medical condition requiring the need for leave, and the time PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE BY AND BETWEEN THE CITY OF BREMERTON and [AFF LOCAL 437 January 1. 2002 --December 3I. 2004 With changes as of 5-30-02 period during which the employee can reasonably be expected to be absent from work due to the condition. [Jpon verifying that the requesting employee meets all of the eligibility requirements above and upon determining that 'the medical documentation received provides appropriate verification of the medical condition and time period involved, the Department Head will recommend the employee's request for donations of vacation leave be approved by the Mayor. The Mayor will review the request to assure that all of the requirements set forth in this subsection have been met and, if so, shall approve the employee's request for donations of vacation leave. 10.2.3. NOTIFICATION: Upon approval bv the Mayor. all CiW employees shale be notified of the approved request for donation of leave. 10.2.4. CONDITIONS OF I)ONATION: An employee who has been employed for at least six (6) months who desires to donate accrued vacation leave to a requesting employee will do so as a tYee and voluntary act and no duress or coercion shall be placed upon an em...plovee to make such donation of his/her accrued vacation leave. Employees who are utilizing donated leave to cover their ovm absences :may :not donate leave to another employee until such time as they have returned to their normal schedule, and any excess donations made to them have been returned pursuant to 10.2.6. below. An employee who desires to donate vacation leave shall complete a Donation of Vacation Leave Form and submit it to his/her Department Head. The donated vacation leave will be transfen'ed to the requesting employee's sick leave balance with the next payroll report. Forms will be date stamped and all time donated shall be in fhll hour increments and shall be credited to the employee on an hour-for-hour basis. A monthly update of the condition of the employee by the attending .prit.nary medical doctor shall be required and furnished to the Department Director. 10.2.5. USE OF DONATED LEAVE: An employee who has received donated vacation leave will be able to use the sick leave in the same manner as if he or she had personally accrued the leave, provided that the use of the sick leave is in conformance wiflq the provisions of this Article. 10.2.6. iRETURN OF EXCESS LEAVE I)ONATIONS - In the event of excess donations received but not used due to earn recovery, resignation, retirement or death, all donations received but not utilized shall be returned to the donating employee(s) based on the proportion of hours that employee donated in relation to the total hours donated by all employees (e.g. an employee who donates 50 hours of 450 horn's total donated shall be credited with 50/450ths of the hours not utilized). Such returned leave shall be reflected in [he appropriate leave balance as soon as possible. Time donated fbr this purpose will not be considered as time 'used during the donor's performance rating period. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 19 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 JanuaD' i. 2002 -4:)ecember 3l. 2004 --~ With changes as of 5-30-02 t! extent ~at .............. 1:'" ..... tlr ng ,,rh;,-.l., +1 ...... 1 ..................... r.l~, 1., ....... · · ..... · ...... .... .},,,~y .................. .r ...... · ~k .... ,- A- ........ l. A,,~ +~, il. .... Al,-; .... L¥ .... ';'t'~"; .... ~.1~..+ ............................................ ...... , ........... approve ........................ Ion ~,..~.~j~ 'vho, desires to ~,..,~-"+" accrued PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 20 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 --December 31,2004 With changes as of 5-30-02 Acc:-ded Hours/'! .5 = Employee's Va',:ation Balance. 10.3 MAXIMUM SICK LEAVE ACCRUAL: 10.3. l. NON-SHIFT EMPLOYEES: Non-shift personnel shall be allowed ab~ to accrue sick leave up to a maximum of nine hundred and sixty (960) hours. 10.3.2. SHIFT EMPLOYEES: Shift personnel shall be allowed able to accrue sick leave up to a maximum of fourteen hundred and forty (1440) hours. SICK LEAVE INCENTIVE: 10.4.1 NON-SHIFT EMPLOYEE - Any non-shift employee who has more than five (5) years of continuous full time paid employment with the City and who takes thirty-two (32) hours or less of sick leave in the calendar year following the fifth year of employment and any subsequent calendar year, shall have eight (8) hours added to his or her vacation leave balance at the beginning of the following calendar year. 10.I~10.4.2 SHIFT EMPLOYEE - A shift employee who has more than five (5) years of continuous full time paid employment with the City and who takes 44.8 hours or less of sick leave in the calendar year following the fifth year of employment and any subsequent calendar year, shall have 11.2 hours added to his or her vacation leave balance at the beginning of the following calendar year. 10.5 SICK LEAVE RETIREMENT PAYMENT: An employee who retires from City service on a service or disability retirement shall be provided a Sick Leave Retirement Payment as follows: !0.~.210.5.1 NON-SHIFT PERSONNEL: Thirty-five percent (35%) of the employee's accrued and unused sick leave hours to a maximum of 35% of 960 hours (a maximum total of 336 hours) will be paid to the employee at the employee's regular hourly wage rate in effect at the time of retirement. i0.1 ! 10.5.2 SHIFT PERSONNEL: Thirty five percent (35%) of the employee's accrued and unused sick leave hours to a maximum of 35% of 1440 hours (a maximum total of 504 hours) will be paid to the employee at the employee's regular hourly wage rate in effect at the time of retirement. 10.6 PAYMENT OF SICK LEAVE UPON DEATH: In the event of the death of an employee, the employee's estate shall be paid for the total accrued and unused sick leave hours at the employee's regular hourly wage rate in effect at the time of death up to a maximum of 960 hours for a non-shift employee= or a maximum of 1440 hours tbr a shift employee. PROPOSED CONTRACT FOR ILA. TIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 ~)ecember 31,2004 --__ With changes as of 5-30-02 !0.1.1.10.7 SICK LEAVE USE: Sick leave must be accrued prior to use by an employee. Sick leave shall be made available to each employee up to the amount of each employee's accrued sick leave balance~ and shall be used in increments of no less than one-half (1/2) hour to cover an employee's absence from his/_ or her regularly scheduled work hours due to: 10.1.210.7.1 The temporary disability of an employee resulting from his/or her personal illness or injury, or for their children under 1.8 who have health conditions requiring supervision or treatment pursuant to WAC ~.96-.~0 or for immediate family members pursuant to FMLA, I~0.1310.7.2 Eligibility shall be governed by the provisions set forth in Federal or State laws, as currently written or hereinafter amended. 10.1.!10.7.3 NOTIFICATION OF SICK LEAVE USE: An employee who is absent or expects to be absent from work due to causes specified in 10:6.1 .:7-above, shall provide notification to the Department as follows: 10.7.3.1 ROUTINE APPOINTMENTS 10.7.3.1.1 (ANTICIPATED ABSENCE): An employee who schedules a routine medical, dental or oculist appointment shall make every reasonable effort to schedule such an appointment on their off duty- days ~" ~ ..... ~.~...,m ...... ~.~ ~ :-o~,~ ..... --,:+~- *~. .... ~ ..... '~ The employee shall give at least seven .ty-two (72) ~- .....~" r ....t~a~ hours prior notice of the date and time of the appointment to his or her immediate supervisor. An employee's immediate supervisor may request that the employee reschedule routine appointments when, in the judgment of the supervisor, the scheduled absence of the employee would unduly interfere with the operations of the Department. An immediate supervisor shall not unreasonably deny an employee sick leave with pay for routine medical, dental or oculist appointments. 10.7.3.2 UNANTICIPATED ABSENCE: An employee who is absent from work or who will be unable to report to work as scheduled due to personal illness t'or injury, or for other causes specified in 10.7 above, shall promptly notify the Department by telephone or otherwise by 0700 of the day of his/or her on_--duty shift, and must make contact with on duty personnel. t4Lt410.7.3.3 SICK LEAVE DURING'AUTHORIZED PAID LEAVE: An employee who becomes ill or is injured during the employee's paid vacation or compensatory time off may request the conversion of such paid leave to sick leave with pay by promptly notifying the Department of the illness or injury at the time of the illness or inju~_, or as soon as is reasonably feasible and providing such information as is required by the Department to verify the appropriateness of such a conversion. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 22 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January I, 2002 -4)ecember 31,2004 ~ . With changes as of 5-30-02 10.7.3.4 SICK LEAVE DOCUMENTATION AND APPROVAL: An employee who has been absent on sick leave shall, during his/her first shift back to work v. Sthin thiay six ,~, t, ....... c, .... ,..~:.., ....... tr be required to submit such forms and provide such information as required by the Department to approve the use of sick leave with pay for the absence. The Department may require an employee to demonstrate that he or she has sought treatment, taken appropriate precautions or otherwise effected measures to correct the condition causing the employee's absence. Such demonstrations may take the form of personal statements of the employee, medical examinations or certifications of appropriate professionals as to the nature of the illness and/or injury of the employee, the employee's child and/or family member, or other methods appropriate to the circumstances. The Department may require an employee to provide a Fitness for Duty certification by a professional physician that the employee is sufficiently recovered as to be able to return to work without posing a health hazard to himself or herself or to other members of the workforce. Sick leave must be approved by the Department prior to payment. The Department shall not unreasonably withhold approval of sick leave with pay from employees. 10.1410.8 INDUSTRIAL DISABILITY AND LIMITATION OF SICK LEAVE USE FOR LEOFF I EMPLOYEES: An employee who qualifies for and is included in the Washington State Retirement System commonly referred to as "LEOFF I", shall have his or her use of sick leave with pay limited to six (6) days for a non-shift employee= or two (2) -shifts for a shift employee of sick leave with pay for each personal or work-related sick leave absence. In the event the employee's absence extends beyond six (6) days_, or two (2) shifts, the employee shall apply for disability benefits provided through LEOFF I. In the event the employee's disability extends beyond a period of six (6) full months and six (6) days or two (2) shifts, the employee shall apply for disability retirement benefits provided through LEOFF I. The employee's accrued and unused sick leave hours shall not be used to extend the period of disability beyond six (6) months and six days (6) or two (2) shifts. 10.9 INDUSTRIAL DISABILITY LEAVE FOR LEOFF II AND REGULAR EMPLOYEES: Au regular employee who qualifies for and is included in the Washington State Retirement System commonly referred to as "LEOFF II", and a regular emplayee who incurs a work-related illness or injury shall be provided with such compensation as is made available through Workers' Compensation benefits as provided by Washington State Law. ARTICLE 11 OTHER LEAVE 11.1 BEREAVEMENT LEAVE: An employee will be g-ranted up to 24 hours of bereavement leave annually for attending funerals in the state of Washington_. and up to forty (40) hours annually for attending out--_of--state funerals ~br ~' members of the employee's immediate family. All time off for bereavement leave in excess of 24 hours PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 23 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 3anuary 1. 2002 -December 3 I. 2004 ~,/ With changes as of 5-30-02 shall be charged against an employee's vacation/holiday, sick leave or compensatory time leave balance at the option of the employee. 11.1.1 Immediate family shall be defined as spouse, child, mother, father, mother/father in- law, brother, sister, brother/sister in-law, grandparents and grandchildren, step relations as described herein of both the employee and the employee's spouse. 11.2 JURY DUTY AND WITNESS DUTY AND ~AILITARY DUTY LEAVE: An employee shall be granted leave of absence with pay for the purpose of reporting to jury duty or ~serving as a witness in a case relating to their job with the City, except in those instances where the employee is taking action against the City. invoR'ing +~,~...,. r~;+,,,~.~j. Any juror or witness fees received by the employee for the performance of such duties shall be assigned to the City A 11.2.1.1 CITY NOTIFICATION: Employee shall be required to notig' the City immediately upon receipt of written notification fi'om the Court that they must report for Jury Duty or serve as a Witness as the result of a case related to his or her employment, by submitting a Leave Request form with a copy of the Jury Duty/Witness Notice attached. Upon telephone confirmation by the Court to report, the employee shall immediately notitS' the on-duty supervisor. 11.3 MILITARY DUTY LEAVE: An employee who presents official orders requiring his/her attendance for a period of training or other active duty as a member of the United States An, ned Forces or the State National Guard shall be entitled to military leave with no loss of pay for a period not to exceed fifteen (15) work days for non-shift employees, or 21 calendar days tbr shift employees, anm~ally. Authorized leave of absence fbr additional or longer periods of time for assignment to duty functions shall be without pay and shall be granted by the City. A non-shiR employee receMng up to fifteen (15) work days or a shift employee receiving up to 21 calendar days of training or serving on active duty shall receive their regular pa,,,' and the amount received, fi'om the Federal or State government. 11.4 EMERGENCY LEAVE: In the event of an unforeseen emergency which requires the absence of an employee such as the illness, injury or death of a member of an employee's immediate family, the employee shall notify his or her immediate supervisor as soon as possible of the required absence. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 24 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 .January 1,2002 -q)ecember 31,2004 t ,~ With changes as of 5-30-02 Such emergency leave shall be charged to an employee's unused vacation/holiday or compensatory time leave balance. 11.5 ADMINISTRATIVE LEAVE: Any bargaining unit employee may be placed on Administrative Leave (leave with pay) for reasons in the best interest of the City and/or employee (e.g. to diffuse a work-related or personal problem that has the potential for escalation if left unchecked,and/or has a negative effect on depmntment/division operations, and no other solution is available). ARTICLE 12 RETIREMENT BENEFITS 12.1 Each employee shall be enrolled in the Washington State Retirement system for which he or she qualifies. Only for the purposes of federal income taxation, the gross income of each employee shall be reduced by the amount of the employee contributions to respective retirement system, which is picked up by the City. When an employee covered by this agreement is assigned to day shift he/she will be assigned back to shift just prior to retiring or going on disability. The employee will maintain the same pay classification. 12.2 Effective January 1, 2002 the City agrees to allow members of the bargaining unit to participate in the Washington State Council of Fire Fighters Employee Benefit Trust Premium Reimbursement Plan (VEBA) and contribute $75.00 per month through a salary reduction of $37.50 per pay period. ARTICLE 13 INSURANCE BENEFITS 13.1 MEDICAL INSURANCE: The City shall make medical insurance coverage available to employees and their dependents and provide for payment of insurance premiums as follows: KPS Plan A for Employees KPS Plan B for spouses and dependents; Group Health for Employees, spouses and dependents. or equivalent or better coverage 13.2 Co-Pay amounts paid by employees for treatment received by employees shall be reimbursed to the employee. Co-Pay amounts paid by employees for treatment received by spouses and dependents shall be paid by the employee. Employee's premium is paid in full by the City. Employee contribution toward dependent coverage will be three dollars fifty cents ($3.50) per month per dependent to a maximum often dollars and fifty cents ($10.50) per month for full family coverage. Effective January 1, 2004, the annual additional $50 out-of-pocket cost tbr prescription coverage for an employee's spouse and/or dependents shall become the responsibility of the employee. Yvith no oblieation tbr reimbursement bv the City. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 25 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January. I, 2002 -December 3I. 2004 {iP-- ~ With changes as of 5-30-02 13.3 DENTAL INSURANCE: The City shall make the same level of benefits as are provided through Washington Dental Service Plan I;~'A dental insurance coverage available to employees and their dependents and provide for full payment of insurance premiums. All Co-pay amounts for all services received shall be paid by the employee. 13.4 DISABILITY AND LIFE INSURANCE: ~r~,.,;~,~ ^~;~ ~ ~ooa ........... ~, ......... , LEOFF II Eemployees will receive $25.00 per month in lieu of any City contributions toward the cost of premiums for Short Term Time. Disability, Long Term Disability, and Life Insurance coverage. 13.5 INSURANCE RESERVES, REBATES AND SURPLUSES: the City shall require the KPS medical plan provider to provide a structured accounting to the City as least annually. Such accounting shall include plan utilizations, all reserve accounts maintained for the plan, interest earned on reserves, administration costs and coinsurance (pooling) costs. This accounting shall be made available to the Association upon request. The City agrees that premium rebates, reserve account rebates or any other monetary returns to the employer from the insurance providers, together with subsequent interest earnings thereon shall be used exclusively to defray the costs of premium increases in the plan, and increase benefit levels, or other health related purposes determined appropriate by the Insurance Benefits Committee shall be comprised off the following members: Mayor or designee, one employee selected by the non-represented management and professional employees, and one individual selected by each of the recognized unions. The committee shall elect a chair and any other officers it deems appropriate. 13.6 WELLNESS PROGRAM: Prior to January 1, 2003. the City's shall negotiate with KPS to include medical coverage with those employees/dependents covered by KPS to include a Wellness Program benefit for well-baby care and preventative care such as PAP smears, mammographv and PSA testing. ARTICLE 14 CLOTHING AND UNIFORM CLEANING ALLOWANCE 14.1 PURCHASE OF UNIFORMS: The City shall purchase new and replacement uniforms required by Fire Department regulations for each employee. Employees shall abide by such rules and regulations as are established by the Department in selecting and obtaining their uniforms. All uniforms paid for by the Fire Department remain the property of the City. 14.2 UNIFORM CLEANING ALLOWANCE: Each employee who is required to wear a uniform pursuant to Fire Department regulations= shall receive a uniform cleaning allowance of two hundred fifty,,~,._,,,.,'~q:~ dollars ($750.00). _ per year for uniform maintenance. The allowance shall be paid during the month of January. An employee hired subsequent to the first of the year shall receive a pro-rata cleaning allowance payment. In the event that the City secures a cleaning contract PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 26 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1. 2002 --December 31~ 2004 It) With changes as of 5-30-02 with an independent cleaning company, no uniform allowance will be paid to employees. ARTICLE 15 PERSONNEL PRACTICES 15.1 DEFINITIONS: For the purpose of interpreting the provisions of this Agreement, the following definitions shall apply: 15.1.1 PROBATIONARY EMPLOYEE: An employee serving a 12-month period commencing upon the initial date of hire as a permanent employee during which the employee may be discharged at the sole discretion of the City, consistent with applicable Civil Service Rules and Regulations and without recourse to the grievance procedure. 15.1.2 PROMOTIONAL PROBATION: A 12-month probationary period commencing upon the initial date of a ~r.e. gular promotional appointment: '~"~; ...... Aa promoted employee who is unable to perform the duties of the higher level position to which they have been promoted during the probationary period, shall be returned to his/her -,or !~er previous classification held at the time of promotional appointment at the sole discretion of the City, consistent with applicable Civil Service Rules and Regulations: and without recourse to the grievance procedure. 15.1.3 LEOFF I EMPLOYEE: An employee who qualifies for and is a member of the Washington State Retirement System commonly known as "LEOFF I". 15.1.4 LEOFF II EMPLOYEE: An employee who qualifies for and is a member of the Washington State Retirement System commonly known as "LEOFF II". 15.1.5 NON-SHIFT EMPLOYEE: An employee who is normally assigned to work forty (40) hours per week Monday through Friday. 15.1.6 SHIFT EMPLOYEE: An employee who is normally assigned to work on a 24- hour shift scheduled basis. 15.1.7 CYCLE: The consecutive calendar day period during which an employee is not scheduled to be on duty as the result of an assigned work schedule including a scheduled Kelly Day, approved paid leave and/or shift trade. 15.1.8 SENIORITY LIST: The Fire Department shall establish a seniority list of all employees in the bargaining unit and shall update the list on January 1 of each year. The list shall be posted on bulletin boards in all stations. All longevity wage placements and vacation selections shall be governed by the current seniority list. Any objections to the list as posted shall be reported to the Fire Department administration and such corrections as are appropriate shall be made and a corrected list shall be re-posted at all stations. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 27 BY ,AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January I, 2002 ~Oecember 3l, 2004 --7 } / / With changes as of 5-30-02 4-5~15.2 REDUCTIONS AND VACANCIES: All personnel reductions and filling of vacancies shall be handled in accordance with existing Civil Service Rules and Regulations and shall not be subject to the grievance procedure. nL5374] 3.o EYAIIiATlflNiqDD/hD ~iTlt~hi'i DY 12I,~*. ! l[~t T'lt'~/;~. nar 15.3.1. NEW EMPLOYEES: W~Titten monthly evaluations shall be completed on ~ each new employee hired bY ~ the Department during his/or her probationary period. The purpose of the evaluation will be used to identify, show an employee's progress and/or areas of deficiency in performing job functions. 15.3.2.1PROMOTED EMPLOYEES: Employees on promotional probation vdll be evaluated ~quarterly. At ~ mini,mum, ~,,~,-,,~,4,~ ................ ~ ....... ~ ............. probationers. ~ employee on promotional probation shall be provided not less than thir~ (30) days ~aen notice a reasonable time lo con-ecl deficiencies p~or to .......................... , ..... ~ ............ or reducing him/her to their previous classification.lien ~o a ...... *; .... ' ..... ~*; .... ~ ~ .............~ ............. ~ employee on promotional probation~ who is demoted ~ due to his/her inability to perform the essential duties and ~nctions of the position, shall have displacement rights ~der Civil Se~ice Layoff and Reduction rules: provided, however, the ..... *;~-~ ~-~".,*;~- w ............. p ......... employee ~ shall have the right to return to his/her ~ former class reg~dless of whether or not a vacancy exists. Provided fu~her, however, nothing in this section shall prohibit the City from terminating or demoting ~ employee on promotional probation~ fbr good cause in confo~ce with Civil Service Rules. 15.515.4 CAREER COUNSELING: An employee who is not selected for a promotional appointment from an eligible register may request career development counseling from the appointing authority for the purpose of their recommending steps the employee may take to improve his_/ or her qualifications and skills for future promotional opportunities. 15.715.5 RIGHTS AND PRIVILEGES: All current policies and practices concerning computation and payment of pay, allowances and benefits; or the application of contract provisions enumerated herein shall continue in force and effect during the life of this Agreement. Should the City wish to make any change with respect to such practices during the life of this Agreement, it shall first notify the Union of the desired change and afford the Union an opportunity to meet and discuss such change. 15.6 PARAMEDIC/FIREFIGHTER CERTIFICATION REQUIREMENT: ,An employee who is hired as a Paramedic/Firefighter shall be required to maintain his/ PROPOSED CONTRACT FOR R~TIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 28 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 Janua~, l, 2002 --December 31~ 2004 With chan~es as of 5-30-02 or her Paramedic Certification as a condition of continued employment. Upon completion of six (6) full years of employment as a Paramedic,~-Firefighter, an employee shall becomes eligible for transfer to a vacant Firefighter position. Upon completion of five (5) full years of employment as a Paramedic/Firefighter, and employee may present the Fire Chief with a request to be transferred from a Paramedic/Firefighter position to a vacant Firefighter position at the earliest opportunity. The Fire Chief shall ;;5!! approve Paramedic/Firefighter requests to transfer to vacant Firefighter positions on the basis of seniority of continuous service with the Bremerton Fire Department among all requesting Paramedic/Firefighters. An employee transferred to a vacant Firefighter position shall have his/ or her pay sahar-y~ rate set at a Firefighter pay wage~ rate as of the effective date of the transfer. 15.7 TRANSITION TO PARAMEDIC: A non-probationary Firefighter who transitions to Firefighter/Paramedic shall remain in the Firefighter/Paramedic classification for not less than four (4) years, except for promotional opportunities. Should an employee fail to :retain ~ ..... ~-~; .......... r his/her P~amedic certification, they shall be downgraded returned to the Firefighter classification. ARTICLE 15-A PROMOTIONAL EXAMS 15.8 PROMOTIONAL EXAMINATIONS: The Civil Service Rules shall apply to the conduct of promotional examinations in all respects excepting that any portion of such Rules which are in conflict with the provisions of this subsection shall be handled in conformance with the following: !5.1.115.8.1 MAINTENANCE OF ELIGIBLE REGISTERS: Eligible registers for Fire Lieutenant and Fire Captain shall be maintained on a continuous basis irrespective of available vacancies. Testing tbr the positions of Battalion Chief, Medical Officer and Fire Marshall shall be done only when a position becomes available. 15.8.2 WRITTEN PROMOTIONAL EXAM/BIBLIOGRAPHY: Effective January. 1~ 2003~ t:t:he written portion of the promotional examinations for Fire Lieutenant and Fire Captain will be given between February 18th and February 28th ~~-~ ,, ...... ~,-.v ....... 26v" aml t~.^~.~ 5~ in odd/even 'ahema4e years. A biblioaraphy l. ist of reading material will be issued six (6) months prior to the written examination. The Department will supply one (1) set of 14sted-reading material as listed in the bibliography per fire station. Such reading material will remain at the station. The Department shall will not be held responsible for the loss of the reading material from any station. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 29 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 --December 31, 2004 ____ With changes as of 5-30-02 CRITERIA FOR OPEN EXAMINATIONS: Q/pen promotional E~xaminations will onl~be ~.~-;.~,.I administered conducted as.pr ............. to qualified bargaining unit members. ~ t3epam~qt- However. when ~ less than t~ee (3) ~applications ~e ~ received .fkom qualified bm'gaining unit members, i.n w5ich event ~e exmination may be announced adve~ised and administered to external cm~didates as well. ~. 15.8.4 CRITERIA FOR EXAMINATION CONTENT: Promotional et~xaminations shall include a written and oral portion._ and shall test for only the knowledge and abilities which are included in the current classification specifications for the position being tested. .~.15.8.5 EXAMINATION SCORING: Examinations shall be scored as follows: £All scores on examinations shall be rounded to the nearest one-tenth of a point). 15.8.5_6.1 Written portion: Maximum of 50 Points ~An applicant's performance on the written portion of a promotional examination shall be scored as follows: Number of questions answered correctly divided by the total number of questions asked = percentage of correct answers. The maximum of 50 Points shall be multiplied by the percentage of correct answers and the result shall be the number of points the applicant earned on the written portion of the examination. &15.8.5.2. Oral portion: Maximum of 50 Points An applicant's performance on the oral portion of a promotional examination shall include the oral panel's evaluation of an applicant's training and educational achievements along with the panel's rating on the applicant's .performance in the oral portion, whichand shall be scored as follows: Number of points received divided by the total number of points available = percentage of total oral points. The maximum of 50 Points shall be multiplied by the percentage of total oral points and the result shall be the number of points the applicant earned on the oral portion of the examination. 15.8.5.3 Experience Rating: Maximum of 10 Points ,k. Each applicant shall receive .5 (1/2) point for each full twelve (12) months of employment service with the Bremerton Fire Department based .upon the date the written examination is conducted, up to a maximum of 10 points. Periods of employment which are less than twelve (12) full months: shall not be credited used in computing the experience rating. 15.8.5.4 Total Score ~An applicant's total score shall be the sum of the points received on the written, oral and experience components of the examination. 15.8.5.5 Minimum Score PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 30 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 -4)ecember 31,2004 --.m. 1 With changes as of 5-30-02 An applicant must achieve a total score of seventy (70) points or more to be placed on the eligible register for the position. 15.8.5.6All offers, acceptances and declinations of employment for promotional positions only shall be made in writing. 15.8.5.7 During the life of this agreement the parties shall meet in a labor management forum to discuss the above language covering promotions. 15.8.6 PROMOTIONS FROM FIRE FIGHTER TO PARAMEDIC/FIRE FIGHTER: A Fire Fighter may be promoted to Paramedic/Fire Fighter (PM/FF) under the tbllowing conditions: 15.8.6.1The employee must successfully complete a Paramedic trainina program approved by the Fire Chief. 15.8.6.2 The employee must have a Paramedic/Fire Fighter certificate issued by the Kitsap County Medical Program. Director. 15.8.6.3 The Fire Chief must approve the promotion. 15.8.6.4 The promotion shall take effect on the first day of the pay period after satisfying the above conditions. For promotions to PM/FF, the employee's step increase date will be changed to the effective date of the promotion. -t-:15.9 Newly appointed Lieutenants and Captains shall: 15.9.1 Complete Fire Command Administration core curriculum or equivalent within thirty (30) months of appointment to the rank of _t=tieutemmLieutenant~ or Captain, Tor 15.9.2 Ceomplete an officer development program as determined by the Joint Labor Management Committee. 15.9.3 Exceptions shall be referred to the Joint Labor Management Committee. The City ~ ..... _ ,-...~,,,,:,., shall reimburse the employee for tuition, books and lab fees. All materials purchased by the City ..... ~ ...... _. ~,,,v,,<,,,, shall remain the property of the C~t_'? .... ~,,,,:,a. The City ~-~ ....... _. ,~.m,,-,J,-, shall make a reasonable effort to provide employees with time off work to attend classes. ARTICLE 16 GRIEVANCE PROCEDURE 16.1 DEFINITIONS: 16.1.216.1.1 GRIEVANCE: A =orievance is an alleged ation <:f a violation of the express terms and conditions of this Agreement ;vhich is to be resolved through this Grievance Procedure. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 31 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1. 2002 -4)ecember 31,2004 ~ ~ -/ With changes as of 5-30-02 16.1.2 CIVIL SERVICE APPEAL: An appeal is an allege__d_datiem of a violation of the Civil Service Rules which is to be resolved through the Civil Service Appeals procedure and is not resolvable through this Grievance Procedure. 16.1.3 UNFAIR LABOR PRACTICE: An Unfair Labor Practice charge is an allegedation of a violation of the Washington State statutes governing public employment labor relations which is to be resolved through the Public Employment Relation Commission's (PERC) rules and regulations and is not resolvable through the Grievance Procedure. 16.1.4 STEP 1: An employee who believes that the terms and conditions of this Agreement have been violated shall first discuss the action giving rise to the belief with his or her immediate supervisor within fourteen (14) calendar days of the date the action took place or within fourteen (14) calendar days of the date upon which the employee could reasonably have been expected to know of such action. The employee-_shall have the right to be assisted by an authorized Union representative if so :requested, during this discussion. 16.1.5 STEP 2: In the event that the employee's immediate supervisor does not resolve the grievance to the satisfaction of the employee at Step 1 of this procedure, the employee shall reduce the grievance to writing and shall state: the section (or sections) of this Agreement which is alleged to have been violated; an explanation of the grievance in detail, including dates, actions and such other information necessary to a full investigation of the facts and circumstances giving rise to the grievance; and the remedy sought. The employee shall have the right to be assisted by an authorized Union representative in reducing his or her grievance to writing. The employee shall present the written grievance to the immediate supervisor's imme4iate- Captain, Assist-ant Chief, ~or the Fire Chief, whichever is appropriate, within fourteen (14) calendar days of the date the employee met with ihis/herthe ..... ~ ...... '" immediate supervisor. The .......... : ...... -': ..... ~:~*~ ' .... ~ .... v ...... ~, ......................... superior C~lptain, Assistant Chief',, aq&/or the Fire Chief, whichever is appropriate, shall meet with the employee and the employee's Union Representative within fourteen (14) calendar days after receipt of the written grievance for the purpose of considering the matter. The Lieutenant. Captain. immediate superior and/or Fire Chief, as appropriate, shall reduce his/her-otZ-h~ decision to writing and shall transmit the decision to the employee with a copy to the Union representative within fourteen (14) calendar days of meeting with the employee and the Union representative. 16.1.6 STEP 3: In the event that the immediate-Captain, Assistant Chief', ~or Fire Chief, as appropriate, does not resolve the grievance to the satisfaction of the employee at Step 2 of this procedure, the Union shall, on behalf of the employee, transmit a copy of the original grievance along with a copy of the Fire Chief's written response to the Human Resources Matmg~Director and the Mayor within fourteen (14) calendar days of receipt of the Fire ChieFs written response. The Human Resources Mamage~Director shall consider the grievance and may convene PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 32 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January l. 2002 -4)ecembcr 31. 2004/ With changes as of 5-30-02 a meeting with a member of the Union executive board .r~ in an attempt to resolve the grievance. The Human Resources Mamage-vDirector shall reduce his or her decision to writing within fourteen (14) calendar days of receipt of the grievance and transmit the decision to the Union. 16.216.1.7 STEP 4: In the event that the Human Resources Mmaag~Director does not resolve the grievance at Step 3 of this procedure, the Union may request arbitration of the issue by written notification to the Human Resources Mama,g~Director. The Human Resources Mmmg~Director and the Union shall meet within fourteen (14) calendar days of the date upon which the Human Resources Mmmgu~Director rendered his or her written decision on the grievance and shall select a neutral arbitrator by mutual agreement or request a panel of nine (9) arbitrators fi'om PERC. 16.2 GRIEVANCES FOR SUSPENSION AND/OR DISCHARGE: In the case of suspension and/or discharge, Step One (1) of the grievance procedure shall be waived and the grievance shall proceed to Step Two (2') wdth the Fire Chief. 16.71.6.3 POWERS AND DUTIES OF THE ARBITRATOR: It shall be the duty of the arbitrator to conduct a hearing on the issue or issues submitted by the parties for decision. The hearing shall be kept informal and private. The arbitrator shall interpret the provisions of this Agreement as they apply to the issue or issues submitted for decision= and shall not add to, subtract from ,or in any other way ot~erwise alter ~or recommend the alteration of the terms and conditions of the agreement in deciding the matter. As soon as is practicable after conducting the heating, the arbitrator shall render a written decision which shall be binding upon the parties. ! 6.816.3.1 COSTS OF ARBITRATION: The expenses of the neutral arbitrator shall be borne equally by the parties. Each party shall singly bear all costs related to preparing and presenting its own case before the arbitrator, including costs of witnesses. The party desiring a record of the proceedings shall bear the cost of obtaining such record. 16.3.2 TIME LIMITS: Time limits established in this procedure shall be strictly adhered t% but may be waived by mutual agreement of the Union and the City. All procedures contained herein shall be complied with as expeditiously as practicable. ARTICLE 17 SEVERABILITY 17.1 In the event that any provision of this Agreement is held invalid by operation of law or by any tribunal of competent jurisdiction, or if compliance with or enforcement of any Article should be restrained by such tribunal pending a final determination as PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 33 BY AND BETWEEN THE CiTY OF BREMERTON and IAFF LOCAL 437 January I. 2002 -December 31. 2004 With changes as of 5-30-02 to its validity, the remaining provisions of this Agreement shall not be held invalid and shall remain in full force and effect. The Union and the City shall immediately meet and attempt to renegotiate any provision found invalid. ARTICLE 18 ENTIRE AGREEMENT 18.1 The Union and the City acknowledge that each has had the unlimited right and opportunity to make proposals with respect to any matter deemed a proper subject for collective bargaining. The results of the exercise of that fight are set forth in this Agreement. Therefore, the City and the Union each voluntarily and unqualifiedly agree to waive the right to oblige the other party to bargain with respect to any subject or matter not specifically covered by the Articles of this Agreement during the term of this Agreement, except as mutually agreed upon. ARTICLE 19 CONFLICTING PROVISIONS 19.1 In the event that any provision of this Agreement is found to be in conflict with any other resolution, ordinance, policy, regulation or rule of the City, the provision of this Agreement shall prevail. ARTICLE 20 DRUG FREE WORKPLACE 20.1 The maintenance of a drug-free work place is essential to the safety and welfare of City employees and the citizens of Bremerton. The following provisions shall apply to employees covered by this Agreement. 20.2 The unlawful manufacturing distributing, dispensing, processing or using of a controlled substance or alcohol in the work place is prohibited. Reporting to work under the influence of a controlled substance or alcohol is prohibited. 20.3 As a condition of employment, all employees must notify the Fire Chief or designee of any criminal drug statute conviction for a violation occurring in the work place no later than five (5) days at~er such a conviction. 20.4 It is the responsibility of every employee to be aware of the above provisions and to abide by them. Failure to observe these provisions could result in immediate disciplinary action against the employee, up to and including termination. The employee may be required to participate satisfactorily in an alcohol or drug abuse assistance or rehabilitation program. 20.5 All employees will be fully informed of the drug and alcohol-testing article. Employees will be provided with information concerning the impact of the use of PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 34 BY AND BETWEEN THE CITY OF BREMERTON and 1AFF LOCAL 437 January I, 2002 -December 31. 2004 With changes as of 5-30-02 alcohol and drugs on job performance. Supervisors will receive training in recognition of signs and systems of substance abuse. In addition, the City wilt inform the employees on how the tests are conducted, what the test can determine and the consequence of testing positive for drug use. All newly hired employees will be provided with this information on their initial date of hire, or as soon thereafter as possible. No employee will be tested before this information is provided to him. An employee may voluntarily enter rehabilitation without a requirement or prior testing. Employees who voluntarily come forward and ask for assistance to deal with a drug or alcohol problem will not be disciplined by the City for doing so. No disciplinary action will be taken against an employee unless he/she refuses the opportunity for rehabilitation, fails to complete a rehabilitation program successfully, or again tests positive for drugs within two (2) years of completing an appropriate rehabilitation program, or as otherwise provided in this article. 20.5.1 Drugs will be defined as narcotics, depressants, stimulants, hallucinogens, cannabis and alcohol, or substances whose dissemination is regulated by law or this article. With respect to over-the-counter drugs and/or drugs that require a prescription or other written approval from a licensed officer or dentist for their use, it is the responsibility of the employee to review cautionary warnings for potential side effects and inquire of the issuing medical authority as to the potential impact of the drug to impair one's ability to work safely and effectively. Each employee is expected to inform his supervisor of such circumstances if there is reasonable cause to believe there will be impairment. 20.5.2 Employees will not be subjected to random medical testing involving urine or blood analysis or other similar or related tests for the purpose of discovering possible drug or alcohol abuse. However, if objective evidence exists establishing reasonable cause to believe an employee's work performance is impaired due to drug or alcohol abuse, the City will require the employee to undergo a medical test consistent with the conditions as set forth in this article. Indications of impaired behavior or a substance abuse problem will include, but are not limited to, the odor of alcohol on the breath, dilated or constricted pupils, accident pattern, abnormal behavior or performance for that specific employee. 20.5.3 The collection of the samples will be performed by ................... v, ......... ~ ................. a laborato~ ~or a health c~e professional qualified ~d authorized to administer ~d dete~ine the me~ing of ~y test results. The laboratory peffo~ing the test will be one that is ce~ified by the National Institute of Drag Abuse (NIDA). The laboratory used will also be one whose proced~es are periodically tested by ~DA where they analyze u~own staples sent to ~ independent pa~y. The results of employee tests will be made available to the desi~ated Medical Review Officer. The employee will not consume ~y food or liquids until after the sample is taken. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 35 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 -4)ecember 31,2004 With changes as of 5-30-02 20.5.4 Collection of blood or urine samples will be conducted in a manner, which provides the highest degree of security for the sample and free from adulteration. Recognized strict chain of custody procedures must be followed for all samples as set by NIDA. 20.5.5 Blood or urine samples will be submitted per NIDA standards. Employees have the right to seek consultation with Union or legal counsel representative prior to submission of the sample, provided it does not unduly delay the process. Employees will not be witnessed while submitting a urine specimen. 20.5.6 Prior to submitting a urine or blood sample, the employee will be required to sign a consent and release form. An employee who refuses to submit to discovery testing will be subject to disciplinary action up to and including discharge for the purpose of administering this article. _20-.5~20.5.7All samples must be stored in a scientifically acceptable preserved manner consistent with NIDA standards. 20.5.8 The laboratory will test for only the substance and within the limits as follows for the initial and confirmation test as provided within NIDA standards. The initial test will use an immunoassay, which meets the requirements of the Food and Drug Administration for commercial distribution. The following initial cutoff levels will be used when screening specimens to determine whether they are negative for those five drugs or classes of drugs: INTIAL TESTING Marijuana metabolites 100 ng/ml Cocaine metabolites 300 Opiates metabolites (1) 300 ng/ml Phencyclidine 25 Amphetamines 1,000 ng/ml CONFIRMATORY TESTING Marijuana metabolites (1) 16 ng/ml Cocaine metabolites (2) 150 ng/ml Opiates Morphine 300 ng/ml Codeine 300 ng/ml Phencyclidine 25 ng/ml Amphetamine 500 ng/ml Methamphetamine 500 ng/ml 1. Delta-9-tetrahydrocannabinol-9carboxylic acid PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 36 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January i, 2002 --December 31. 2004 ~/tx0 With changes as of 5-30-02 2. Benzoylecgonine. If confirmatory testing results are negative, all samples will be destroyed and records of the testing expunged from the employee's file. 20.5.520.5.9 Reporting for work with any measurable amount of alcohol in the bloodstream (i.e. a blood alcohol level of .04 or higher) will be a basis for disciplinary action. A blood alcohol test will be performed by a qualified laboratory to determine the amount of alcohol in the bloodstream. If such alcohol testing results are negative, all samples will be destroyed and records of the testing expunged from the employee's file. 20:5.620.5.10 The Medical Review Officer will be employed by the collection facility and must be a licensed physician with knowledge of substance abuse disorders. The Medical Review Officer will be familiar with the characteristics of tests (sensitivity, specificity, and predictive value), the laboratories running the tests and the medical conditions and work exposures of the employees. The role of the Medical Review Officer will be to review and interpret the positive test results. He or she must examine alternate medical explanations for any positive test results. This action will include conducting a medical interview with the affected employee, review of the employee's medical history and review of any other relevant biomedical factors. The Medical Review Officer must review all medical records made available to the tested employee when a confirmed positive test could have resulted from legally prescribed medication. 20.5.720.5.11 The laboratory will advise only the employee and the Medical Review Officer of any positive results. The results of a positive drug or alcohol test can only be released to designated Human Resources staff by the Medical Review Officer once he or she has completed her or his review and analysis of the laboratory's test. 20.5.820.5.12 The City will pay for all costs involving drug and alcohol testing as well as the expenses involved of the Medical Review Officer. The City will also reimburse each employee for his or her time and expenses including travel incurred involving the testing procedure only. 29.5.920.5.13 The parties recognize that an employee has the obligation not to place him/herself in a situation where the ability to perform his/her job is impaired by drugs or alcohol. In the event an employee fails to fulfill his/her obligations, it is the responsibility of the City to remove such employee from the work environment to prevent the endangerment of the employee, fellow employees and/or the public. PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 37 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1. 2002 ~)ecember 3 I. 2004~ ~ ~ With changes as of 5-30-02 Any regular employee who tests positive for drugs may be subject to disciplinary action up to and including termination, depending upon the circumstances of the situation. Circumstances that would warrant termination include incidents where the employee's impairment resulted in loss of life, serious injury to self or others, or the serious loss or damage of property. In cases where discipline is not warranted, the employee involved who tests positive for drugs or alcohol may be placed in a rehabilitation status where the employee may utilize accrued paid leave or donated leave. In this case the employee will be evaluated by a licensed drug/alcohol evaluator, not employed by the City. Participation by the employee in the approved treatment program is mandatory. Once the intensive part of the program has been completed, the employee may be returned to his/her regular duty assignment, but only with a written release from the Medical Review Officer. Employees who complete a rehabilitation program may be re-tested randomly a maximum of four (4) times a year for the following two years. 20.5.1020.5.14 Employees who enter and successfully complete a rehabilitation program on their own initiative may not be subject to re-testing, except as provided in this section m--fic4e_. The treatment and rehabilitation will be paid for by the City onl'~ to the extent that coverage may be is provided by the employee's medical insurance program through the City. Employees will be allowed to use their accrued, earned and donated leave for the necessary time off involved in the rehabilitation program. Upon completion of the program the employee will be subject to one (1) random test during the following twelve months. -;e~. 20.5.11 Periodic progress reports from the attending health care practitioner will be provided to the City stating the prognosis of when the employee should be able to Zs return to his/her regular duty assignment. 20.5.12 If an employee tests positive during the two (2) year period following the rehabilitation program, the employee will be re-evaluated by a licensed drug or alcohol counselor to determine if the employee requires additional counseling and/or treatment. The employee will be solely responsible for any costs not covered by insurance, which arise from this additional counseling or treatment. This section does not apply to employees in rehabilitation programs pursuant to Section 20.5.1 () 20. i. l 120.5.13 Once an employee successfully completes rehabilitation, they will be returned to their regular duty assignment. 20. I. 1220.5.14 A regular employee has the right to challenge the results of the drug or alcohol tests and any discipline imposed in the same manner that he/she may grieve or appeal any other City action. ?ROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT t'AGE 38 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 .lanuary i, 2002 --December 31. 2004 th ~ With changes as of 5-30-02 20. !. !220.5.15 The parties recognize that during the life of this Agreement, there may be improvements in the technology of the testing procedure, which provide more accurate testing. In that event, the parties will bargain in good faith whether to amend this procedure to include such improvements. If the parties are unable to agree on the amendments they will be submitted to impasse procedures as outlined in RCW 41.56. g0A-.-1420.5.16 This Article is in no way intended to supersede or waive any constitutional or other rights that the employee may be entitled to or legal obligations that the City may have under federal, state or local statutes. s-alcohol test of all ~; 20.620.5.18 The drug-testing program was solely initiated at the request of the City. The Union will be held harmless and indemnified, including the cost for attorney's fees, for the violation of any employee's rights by the City arising from the administration of this testing process. 20.720.5.19 The City is committed to supporting employees undergoing treatment and rehabilitation for alcohol or other chemical dependency. The City will provide information to employees on available drug/alcohol abuse assistance or rehabilitation programs. 20.5.20 The confidentiality of all complaints and reported violations of the provisions of this policy will be strictly maintained, except as required by public disclosure laws or court orders. ARTICLE 21 DEFERRED COMPENSATION 21.121.1 Effective January 1. 2002. the City ~ shall match the payroll deduction of any written request by an employee covered by .this Agreement. in an an~ount not to exceed one htmdred eighteen dollars and no cenls ($118.00) or three percent (3%) of salary. whichever is greater. 21.2 Effective January 1,2004, the City shall match the payroll deduction of any written request by an employee covered by this Agreement, in an amount not to exceed three and one-half percent 0.5 Yo) of salary. 21.3 Effective January 1. 2002. LEOFF ! bargaining unit members who have completed 25 or more years of service with the City will no loneer be required to make a matching contribution, and may elect to have all or part of the City's maximum contribution converted into longevity in lieu of Deferred Compensation. PROPOSED CONTRACT FOR RATIFIC..\TION COLLECTIVE BARGAINING AGREEMENT PAGE 39 BY AND BETWEEN THE CITY OF BREMERTON and IAFF t. OCAL 437 Januaw l, .002 -4December 31. 2004 With changes as of 5-30-02 21.3 Effective January 1, 2002, LEOFF II bargaining unit members who are a minimum of 45 years of age and have completed 15 or more years of service with the City will no longer be required to make a matching contribution, and may elect to have all or part of the City's maximum contribution converted into longevity in lieu of Deferred Compensation. 21.4 CONVERSION TO LONGEVITY: Employees may elecl, by notifying the City in writing on an annual basis, that they wish to convert all or a portion of the City's contribution to their deferred compensation to longevity. Such conversion shall only be permitted in one-half percent (1/2%) increments. Once an employee has elected to make the conversion from deferred compensation to longevity, they will not be permitted to make any changes whatsoever to the percentage converted, for a full 12 monlh period. ARTICLE 22 LABOR MANAGEMENT COMMITTEE 22.1 LABOR MANAGEMENT: The Employer and the Union agree that a need exists for closer cooperation between labor and management. To accomplish this objective, the Employer and the Union agree that no more than three (3) duly authorized representatives of the Union shall function as one-half (1/2) of a Labor- Management Committee, the other half being no more than three (3) certain representative of the Employer named for that purpose. The Committee shall meet at least once every three (3) months for the purpose of discussing and facilitating the resolution of all problems which may arise between the parties. The Employer shall provide draf~ of the minutes of the meeting to the Union's committee within (2) two weeks of the meeting. At the Committee's discretion, additional meetings may be held. The Committee shall be chaired by a member elected by the Committee. 22.2 Should the Union and Employer mutually agree to change, add, or delete any provision of this Agreement, policies, rules or other matters, such change shall be set forth in writing. ARTICLE 23 TEMPORARY FIREFIGHTER PROGRAM 23.1 During the term of this agreement the Employer may implement a "temporary" firefighter program. Prior to implementation the employer will meet with the Union to negotiate the impact on employees of such a program. ARTICLE 24 PHYSICAL FITNESS PROGRAM PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 40 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1. 2002 --December 3 l, 2004 O With changes as of 5-30-02 24.1 The Union and the Employer shall work cooperatively in the Joint Labor Management Committee and continue to develop and refine the a physical fitness program ......... ....... ........agreement. ARTICLE 25 TOBACCO FREE WORK PLACE 25.1 As a condition of employment, all employees hired after the effective date of this agreement shall no use any tobacco products while on duty. ARTICL 26 DISCIPLINARY ACTION 26.1 Disciplinary action, as defined by the Civil Service Rules as now stated of hereinafter amended, may be taken against any non-probationary employee for just cause. An employee who is the subject of a disciplinary action must elect to follow the appeal procedures either in the Civil Service Rules, or grievance procedure. The employee selection of one procedure shall preclude the use of the other. ARTICLE 27 TERM 27.1 The terms of this Agreement shall be in effect upon January 1, 2002~...~,aaa unless otherwise provided within the terms of each Article, and shall remain in effect through December 31, 2004_$. Negotiations for a successor agreement shall commence no later than August 1, 2004-1-. This Agreement is hereby submitted to the Bremerton City Council for approval. Upon the approval of the Council, this Agreement shall become binding upon the City, the Union and all of the employees in the bargaining unit covered by this Agreement. DATEI_) THIS day of ,20024-999. CITY OF BREMERTON: IAFF LOCAL #437 Carol Conley Todd Thorsen Director of Human Resources President Allison Duke III Fire Chief Vice President Cary Bozeman, Mayor Doug Baier Secretary-Treasurer PROPOSED CONTRACT FOR RATIFICATION CO LLECT1VE BARGAIN lNG AGREEMENT PAGE 41 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January 1,2002 --December 31,2004 t')~' With changes as of 5-30-02 ATTEST: APPROVED AS TO FORM: Kathleen McCluskey Roger Lubovich City Clerk City Attorney PROPOSED CONTRACT FOR RATIFICATION COLLECTIVE BARGAINING AGREEMENT PAGE 42 BY AND BETWEEN THE CITY OF BREMERTON and IAFF LOCAL 437 January. 1, 2002 --December 31,2004 t~ AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA: June 19, 2002 APPROVAL OF THE PHASE II SCHEMATIC DESIGN ORIGINATING DEPT: Executive AGREEMENT PHASE II BETWEEN THE CITY OF ORIGINATOR: Gary Sexton BREMERTON AND OPUS NORTHWEST LLC DATE SUBMITTED: June 14, 2002 2. CLEARANCES: (Comme.nt on back if necessary) 3. EXHIBITS: ~(-"~' PHASE II SCHEMATIC DESIGN AGREEEMENT 'R~GER A,. LUBOVICH, City Attomey~y~ BETWEEN THE CITY OF BREMERTON AND TO BE HEARD 6/18/02 ~ OPUS NORTHWEST LLC FISCAL & BUDGET CHAIRMA~ TO BE HEARD 6/18/02 OPERATIONS CHAIRMAN APPROVED FOR SUBMITTAL: MAYoRENDORSE/~ [--]~ ~XlOS ~-]--. COUNCIL PRESIDENT 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: This Phase II schematic design agreement is for the project work through the schematic design phase of the downtown conference center. This agreement follows the Phase I agreement, which related to pre-design site analysis and work. 8. RECOMMENDATION: Move to approve and authorize the Mayor to finalize and execute the Phase II Schematic Design Agreement between the City of Bremerton and OPUS Northwest LLC _wit_h. substantially the same terms and conditions as contained in the proposed agreement. 5,tb~c-¥ -{n, ~'~¥r~v'~ ~ d.,qy P~"~', 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: 8 REVIEW DATE: 10. NOTICE OF ACTION: PULLED [] TABLED [-'] APPROVED [--~ DISAPPROVED ~-] AMEND! COUNCIL DIRECTIVE: 11. AGENDABILL NO.: D,~-/!7 5. IMPACT OF NON-PASSAGE: 6. IMPACT ON STAFFING, BUDGETS, FACILITIES~ EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: SCHEMATIC DESIGN AGREEMENT BETWEEN THE CITY OF BREMENTON AND OPUS NORTHWEST, LLC This AGREEMENT made as of the __ day of June in the year 2002. BETWEEN the Lead Agency City of Bremerton 245 Fourth Street Bremerton, WA 98337 And the Designer/Developer (for purposes of this agreement referred to as "Developer") Opus Northwest LLC 915 - 118th Avenue SE, Suite 300 Bellevue, WA 98005 For the following Project: First and Washington Conference Center The Lead Agency and Developer agree as follows: 1. The "Project" parameters The Project is a public/private joint development between the Lead Agency and the Developer for the development of a mixed-use facility on the waterfront immediately adjacent to the Bremerton Transportation Center (Ferry Terminal) consistent with the city Request for Proposal of2/11/02. This agreement is for the project work through the schematic design phase as set forth in Exhibit I with several conditions subsequent as herein listed. The Project includes: · Parking Structure A parking structure located on 3 levels below the street elevation of Washington Avenue. The ownership will be jointly held between the City of Bremerton and Kitsap Transit subject to a parking managing agreement between Kitsap Transit, the City and the Developer. Parking will support the conference center, hotel, restaurant, offices, residences, retail, marina, commuters and visitors and shall consist of no fewer than 450 parking spaces. · Conference Center "Conference Center" shall mean the Kitsap Regional Conference Center, a regional tourism related facility which will include no less than 15,000 square feet of gross floor space, including no less than 7,500 square feet of banquet space, the Associated Parking Spaces, and related public spaces, including a lobby area and additional break-out spaces, and which facility shall be part of the project. The conference center shall have a distinct identity as a public facility, with well- defined exterior entrances, and a waterfront orientation. The main conference room must be able to seat 420 persons for banquets and 600 for meetings. The meeting/banquet room shall be capable of being separated into four smaller spaces. Reception, lobby and storage areas are required. A serving kitchen will be included to support catered banquets, (this kitchen may be apart of the restaurant). Office space shall be provided for managerial or supervisory personnel. The Center will be owned, managed, operated and maintained by the City. C:~Documents and SettingsWALENCIA\Local Settings\Temp~SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 1 of 8 * Hotel The Hotel must include not less than 100 guest rooms and will be financed, owned, operated and maintained by the Developer or assigns agreed to in writing by the Lead Agency. The air rights for the hotel will be leased or sold. The hotel must be separate from the conference center but may be connected to it. * Restaurant The restaurant will be financed, owned, operated and maintained by the Developer or assignee agreed to in writing by the Lead Agency. The air rights for the restaurant will be sold or leased to the Developer. The restaurant's location within the complex must take advantage of waterfront views. Its kitchen may have the capacity to cater conference center banquets and may provide room service for the hotel. * Retail Space Not less than 10,000 Gross S.F. commuter retail space (CRB), with the majority of space to be located on the Commuter Retail Building pad on the transit deck level of the BTC. The retail space will be financed, owned, operated and maintained by the Developer or assigns as agreed to in writing by the Lead Agency and Kitsap Transit. * Office Space Not less than 10,000 Gross S.F. office space (KT Office) will be located above the commuter retail space. Offices should take advantage of water views. Not less than 10,000 square foot of the office space initially will be owned by the Developer subject to a lease and purchase option in Kitsap Transit. The design and construction of the office space to be leased/purchase optioned by Kitsap Transit will be subject to design development and agreement to be negotiated between Kitsap Transit and the Developer with review input by the Lead Agency. · Residential The potential residential component shall be financed, owner, operated and maintained by the Developer on air rights purchased or leased from the Lead Agency and/or Kitsap Transit. · Marina The project design shall accommodate access for owners, liveaboards and guests (including provisioning). Design consideration for a two story 1500 S.F. Harbor Master unit on the site may be given. . Expanded Waterfront Park Public open space park must be incorporated in the project and should complement the existing boardwalk and the waterfront park. Service/emergency vehicles and pedestrian access must be maintained between boardwalk, waterfront park, this development and Washington Avenue. C:kDocuments and SettingsWALENCIA\Local SettingsXTempXSCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 2 of 8 q0 · Sensitivity Toward View Corridors The design shall be sensitive to open space and view corridors. The design should include pedestrian access and public view corridor through the site and to the open space from Second Street, the CRB pad, the transit area below pad, and the BTC. · Site Access Issues The project has several vehicle access requirements. Existing access to the project site is from Second Street. Emergency vehicles will require access around the development complex. Service and emergency vehicles access to the Boardwalk and waterfront park must be maintained. Freight/delivery vehicles and refuse disposal trucks will require access to the loading dock area of the development complex. A main entrance is necessary for the public components of the facility. A vehicle drop off area should be provided at the main entrance to serve cars and tour buses. Pedestrian access shall be maintained to the facility from the main entrance, boardwalk, waterfront park, and the BTC transit deck and passenger ferry. HOV garage access and egress must be considered. 2, The property being developed ("Project Site") is bounded by that property between the waterside utility easement, Washington Avenue centerline, the north line of 2nd Street and south line of north 50 feet of the BTC CRB and air spaces above (Project Site) in Bremerton, Washington. Such limits shall be verified and adjusted if necessary upon ALTA survey findings. 3. Lead Agency Team 3. (a.) The Lead Agency Representative is: Ga_ry Sexton, Project Manager Ci_ty of Bremerton 239 Fourth Street Bremerton, WA 98337 3. (b) The persons or entities in addition to the Lead Agency Designated Representative, who will review the Project Designer's submittals to the Lead Agency Project Representative are: Dick Hayes of Kitsap Transit Bror Elmquist, Representative of Kitsap Public Facilities District Ca_fy Bozeman, Bremerton Mayor Chris Hugo, Director of Community Development Gene Sampley, Director of Public Works 3. (c) The Lead Agency's other consultants and contractor are: Art Anderson Associates 202 Pacific Bremerton, WA 98337 C:~Documents and SettingsWALENCIA\Local Settings\Temp\SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 3 of 8 4. The Project Developer Representatives are: 4. (a) Bart Brgnestad~ Tim Rote & PJ Santos Opus Northwest LLC 915 - 118th Avenue SE, Suite 300 Bellevue~ WA 98005 4. (b) See Attachment #2 for listing of consultants being proposed for the Schematic Design Phase 2. 5. Joint Responsibilities of the Parties The Lead Agency and the Developer shall cooperate with one another to fulfill their respective obligations under the Agreement. Both parties shall endeavor to maintain good working relationships among all members of the Project Team. 6. Lead Agency The Lead Agency shall provide full information in a reasonably timely manner regarding requirements for and limitations on the project. 7. Developer The services performed by the Developer are as follows: 7. (a) The Developer shall, pursuant to the terms of the agreement, perform those services listed in Exhibit A hereto during the months of June-August 2002. Developer shall be paid the amounts set forth in Attachment I as "Exhibit I Schematic Fees". 7. (b) Schematic Design Schedule is included as set forth in Attachment #3. 7. (c) The Developer's services shall be performed consistent with the time period established herein which shall be adjusted, if necessary, as the Project proceeds. This schedule shall include allowances for periods of time required for the Lead Agency's review, for the review by others listed in paragraph 3, and for approval of submissions by authorities having jurisdiction over the Project. Either party shall not, except for reasonable cause, exceed time limits established by this schedule. 7. (d) The Developer's designated representative identified in Paragraph 4 shall be authorized to act on the Developer's behalf with respect to the Project. 7. (e) The Developer shall review and comply with local laws, codes and regulations applicable to the Project. Lead Agency shall provide to develop state and federal laws, codes and regulations applicable to the project. 8. Scope of Work The scope of work of the Developer under this agreement is as follows: See Exhibit I. 8. (a) Ownership Upon full payment of all sums due or anticipated to be due the Developer under this Agreement, the latest original drawings, specifications, and the latest electronic date C:~Documents and Settings\VALENCIA\Local Settings\Temp\SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 4 of 8 prepared by the Developer for the Project shall become the property of the Lead Agency. This conveyance shall not deprive the Developer of the right to retain electronic data or other reproducible copies of the drawings and specifications or the right to reuse information contained in them in the normal course of the Developer's professional activities. The Developer shall be deemed the author of such electronic data, documents and design, and shall be given appropriate credit in any public display of such documents. 9. Time for Performance: 100 days 10. Payments to the Developer The Lead Agency shall pay the Developer monthly within 20 days. Developer shall have available for Lead Agency review submittal of an invoice 10. (a) Reimbursable Expenses are in addition to compensation for the Developer's services and included expenses as follows: 1. Transportation in connection with the project, outside of Kitsap, Pierce and King Counties as pre-approved by the Lead Agency Project Representative. 2. Fees paid for securing approval of authorities having jurisdiction over the Project. 3. Reproduction, plots, photographs, standard from documents, postage, handling and delivery of Instrument of' Service. 4. Presentation or f'mal renderings, models and mock-ups requested by the Lead Agency. 10. (b) Amounts not properly paid within forty-five (45) days after the date the properly prepared invoice was delivered to the Lead Agency Project Representative shall bear interest at the rate of 12% per annum until paid in full. 11. Miscellaneous Provisions Each party shall defend, indemnify and hold the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with its performance o this Agreement. 11. (a) This Agreement shall be governed by the laws of the State of Washington. 11. (b) Unless otherwise provided in the Agreement, the Developer and Developer's consultants shall have no responsibility for the discovery, presence handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. 11. (c) The Lead Agency and Developers, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all other covenants of this Agreement. Neither the Lead Agency nor the Developer shall assign this Agreement without the written consent of the other, C:~Documents and Settings\VALENCIA~I~ocal Settings\Temp\SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 5 of 8 except the Lead Agency may assign this Agreement to an institutional lender providing financing for the Project. 11. (d) If the Project is suspended by the Lead Agency for more than sixty (60) consecutive days, the Developer shall be compensated for the services performed prior to notice of such suspension. When the Project is resumed, the Developer shall be compensesated for expenses incurred the in interruption and resumption of the Developer's services if approved in advance. The Developer's fees for the remaining services and the time schedules shall be equitably adjusted, per mutual agreement. 11. (e) If the Project is suspended or the Developer's services are suspended for more than 120 consecutive days, the Developer may terminate this Agreement by giving not less than seven days written notice. 11. (f) This Agreement may be terminated by the Lead Agency upon not less than seven days written notice to the Developer for the Lead Agency's convenience and without cause. 11. (g) In the event of termination not the fault of the Developer, the Developer shall be compensated for services performed prior to termination, together with reimbursable expenses. 11. (h) Termination Expenses are in addition to compensation for the services of the Agreement and include reasonable expenses directly attributable to termination for which the Developer is not otherwise compensated. Termination expenses shall be limited to $50,000 for the Developer and Consultants. 11. (i) Some of the construction will be subject to Federal Regulations and Requirements (see http ://www.fta.dot. gov/library/legal), http://www.fta.dot.gov/office/pro~am/gmw/Clauses.html, including compliance with NEPA< Davis-Bacon and Buy America. The remaining public construction must comply with State Prevailing Wages. The scope of Federal Regulation compliance, including application to specific components will be determined during the project Developer contract negotiation and within two weeks of completion of schematic design phase. 11. (j) Subsequent phase agreements will have Developer forfeiture provisions for any failure to proceed or to performs as shall be hereafter agreed between the parties. 11. (k) This Agreement represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. 12. Indemnification Developer shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Developer's performance of the Agreement, except for that portion of the injuries and damages caused by the City's negligence. C:~Documents and Settings\VALENCIA\Local Settings\Temp\SCHEMAT1C DES1GN AGREEMENT BETWEEN OPUS AND ClTY.doc Page 6 of 8 The City's inspection or acceptance of any of Developer's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons of damages to property caused by or resulting from the concurrent negligence of the Developer and the City, its officers, officials, employees, agents and volunteers, the Developer's liability hereunder shall be only to the extent of the Developer's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. 13. Insurance The Developer shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Developer, its agents, representatives, employees, sub-consultants or sub-contractors. Before beginning work on the project described in the Agreement, the Developer shall provide a Certificate of Insurance evidencing: 1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage: and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and 3. Excess Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate. 4. Professional Liability insurance with limits no less than $1,000,000 limit per occurrence. Any payment of deductible of self-insured retention shall be the sole responsibility of the Developer. All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which shall be provided on a "claims-made" basis. The Developer's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Developer's insurance shall be primary as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. C:kDocuments and Settings\VALENCIA\Local Settings\TempLSCHEMAT1C DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 7 of 8 The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. This Agreement entered into as of the day and year first written above~~~> Lead Agency Representative (signature) Developer Representative (signature) (Printed name and Title) (Printed name and Title) Attachments: Exhibit I- Scope of Services Attachment #1 - Fees Attachment #2 - Consultants Attachment #3 - Schematic Design Schedule C:~Documents and SettingsWALENCIA~Local Seaings\Temp~SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 8 of 8 EXHIBIT I BREMERTON CONFERENCE CENTER SCOPE OF SCHEMATIC DESIGN SERVICES The intent of this Document is to provide additional services and/or deliverables beyond those contracted in "Agreement Between The City of Bremerton and Opus Northwest" DRAFT dated 5/6/02. Opus Northwest continues to act as Designer/Developer (Developer) for the City of Bremerton (Lead Agency). Scope of Services will build and expand upon those services begun in Agreement. In the event of conflict between this document and the Agreement, this document shall take precedence. Scope of Services (Schematic Design Phase): A. PREDEVELOPMENT SCOPES: Complete the previous services started in 5-6-02 Attachment #1 these will include: environmental testing of soils and water at two site borings. Opus shall provide summary report, as they are complete for: geo-tech investigation, ALTA and Typo Survey, structural findings, including lateral analysis, architectural findings, and environmental Phase I Parking analysis. B. PROGRAMING: The Developer shall refine public program needs using Opus/LMN Architects proposal as a baseline. Lead Agency to collect and forward all public agency programming requirements as well as budget and funding requirements. The Developer shall provide comments on the public program, schedule and construction budget. Developer shall itemize any special program requirements of agencies for internal cost accounting purposes. Review existing codes and make recommendations for changes to provide ultimate project performance. Codes to be review include: UBC, planning, zoning (use studies), SEPA, shorelines. At the completion of the Schematic Design Phase, the Developer shall provide Lead Agency with final private program. Private program elements being considered include those listed in the Agreement (hotel, restaurant, retail space, office space, residential). C. SCHEMATIC DESIGN MEETINGS: The Developer shall periodically review schematic design progress with the Lead Agency Project Manager. Design issues will include: integration of Public and Private programming needs; vertical circulation between mixed use components; design character of complex; construction issues related to design considerations and sequencing; costing options as appropriate; primary systems (structural, mechanical & electrical, elevators); D. SCHEMATIC DESIGN DOCUMENTS: Final schematic design documents shall illustrate the scale, relationship and architectural character of both public and private project components. Private project components are to include: hotel, retail, restaurant and office. Developer may or may not proceed with the private residential component. Private and public schematic design submittals will include: site plan, floor plan(s), roof plan(s), exterior elevations, typical building section, schematic finish selection of interior and exterior, outline specifications, rendering of entire campus and architectural study model. Rendering is part of the basic fee. E. PUBLIC CONSTRUCTION ESTIMATE: Base on mutually agreed-upon construction start date and public schematic design documents Developer shall provide Total Public Construction Estimate. Estimate shall be broken down into five main categories: parking structure; conference center; Harbor master unit; off site and on site improvements (except for landscape and hardscape); landscape and hardscape improvements. Estimate will be in systems estimate format (off site, on site, substructure, superstructure, exterior closure, interior construction, conveying, mechanical, electrical, General Conditions, insurance, contingency and fee). Construction estimate will also include clarifications and assumptions (with allowance for special work as required) and proposed construction schedule. F. PRECONSTRUCTION SCHEDULE: Developer shall provide design schedule for project from schematic design phase completion to start of construction. FIRST AND WASHINGTON CONFERENCE CENTER Date: 6/19/2002 EXHIBIT 1 PAGE 1 OF 2 G. TOTAL PROJECT COSTS: Developer shall provide at completion of Schematic Phase "Total Project Costs (TPC)" for public program requirements. TPC shall itemize soft and hard costs. Soft costs being such items as: government charges, design fees, inspection and testing costs; surveys, taxes (real estate, sales, B&O, etc), utility charges and assessments, printing costs, legal fees, insurance (environmental, liability, etc), revenue (pad sales, parking garage, etc), start up costs, project contingencies, etc. Hard costs being: construction costs, general conditions, taxes and insurance, construction contingencies. H. DELIVERABLES: 1. Based on Lead Agency approval of Schematic Design direction, prepare and submit to Lead Agency schematic design documents for Parking Garage, Conference Center, Marina and Plaza. "Schematic level drawings for the private portions of the project will also be produced in sufficient detail to ascertain compliance with FRP and proper design coordination with public portions of the project." Schematic design drawings to include discipline design schemes for: architectural, structural, mechanical & electrical (design-build), landscaping, civil. Deliverable shall consist of: program needs (with code restraints and suggested changes); site plan; floor plan(s); roof plan(s); exterior elevations; typical building sections; schematic finish selection for interior and exterior, outline specifications, construction estimate, construction schedule, construction assumptions and clarifications, Preconstruction Schedule and Total Project Costs. I. ADDITIONAL AGREEMENTS: Prior to the completion of the Schematic Design phase, Lead Agency and Developer will endeavor to resolve contract language for: Pad Sale Agreement between Lead Agency and Developer; Design-Build Agreement (for work from Design Development thru construction). J. ATTACHMENT # 1 - FEES: Developer costs and fees for this Phase of Services is attached herein as Attachment # 1. K. ATTACHMENT # 2 - CONSULTANTS: The Developer anticipates using design and testing consultants as attached herein as Attachment # 2. L. ATTACHMENT # 3 - SCHEMATIC DESIGN SCHEDULE: The Developer schedule for Schematic Design Phase is attached herein as Attachment # 3. FIRST AND WASHINGTON CONFERENCE CENTER Date: 6/19/2002 EXHIBIT I PAGE 2 OF 2 ATTACHMENT # DEVELOPER COSTS AND FEES. FIRST AND WASHINGTON CONFERENCE CENTER, BREMERTON, WA. Exhibit I Fees. City of Bremerton Costs Approved Exhibit I Fees Schematic Total Description/services To date Fees Fee / cost Survey of land ALTA Survey $15,000 $15,000 Soil & enviormental $23,650 Legal - TBD Enviormental Parametrix $8,000 $15,660 $23,660 DESIGN FEES Architect & interiors - prime (LMN) $160,75(: Programing & conceptual $20,000 $10,740 $30,740 Fee reduction agreed to by LMN -$5,000 -$5,000 Schematic $135,010 $135,010 Land use permit expeditor (Rice Fergus Miller) $5,000 Programing & conceptual $5 000 Schematic $5,000 , Parking Report $5,80C Programing & conceptual $2,000 $2,000 Schematic $3,800 $3,800 Civil Engineering $33,000 Programing & conceptual $11,000 $11,000 Schematic $22,000 $22,000 Landscape Architect $39,51 Programing & conceptual $22,558 $22,558 Schematic $16,960 $16,960 Structural engineer $32,303~ Programing & conceptual $10,000 $10,000 Schematic $22,303 $22,303 Firs sprinkler design (Design-build) $4,570 Programing & conceptual Schematic $4,570 $4,570 Plumbing design (Design-build) $5,41~ Programing & conceptual Schematic $5,418 $5,418 HVAC & Controls design (Design-build) $3,66, Programing & conceptual Schematic $3,667 $3,667 Electrical design (Design-build) $7,§3-~ Programing & conceptual Schematic $7,633 $7,633 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I ATTACHMENT# 1 - FEES Page 1 /2 Date: 5/31/02 ATTACHMENT # 1 DEVELOPER COSTS AND FEES. FIRST AND WASHINGTON CONFERENCE CENTER, BREMERTON, WA. Exhibit I Fees. City of Bremerton Costs Approved Exhibit I Fees Schematic Total Description/services To date Fees Fee I cost Elevator consulting services $2,00C Programing & conceptual Schematic $2,000 $2,000 Corision Consultant $5,00011 Programing & conceptual Schematic $5,000 $5,000 INSPECTION AND TESTING SERVICES. Geotechnical Engineering $:20,000 Programing & conceptual $20,000 $20,000 Schematic Printing and reimbursables (excluded per Agreement) Programing & conceptual Schematic AlE fee contingency Programing & conceptual Schematic Pre - Construction Services. $48,000 Programing & conceptual $12,000 $12,000 Schematic $36,000 $36,000 Summary of fees - SUBTOTAL > $87,000 $324,319 $411,319 Opus Fee ~ 8.5% $7,395 $27,567 $34,962 $94,395 $351,886 $446,281 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I ATTACHMENT# 1 - FEES Page 2 / 2 Date: 5/31/02 ATTACHMENT # 2 BREMERTON CONFERENCE CENTER LIST OF CONSULTANT FOR SCHEMATIC DESIGN The intent of this Attachment is to list Consultants the Developer intends to use to complete public services and/or deliverables indicated in Scope of Services. Developer has not completed all Professional Service Agreements with Consultants, if Developer and Consultant can not agree to terms or scope the Developer can submit alternate Consultant to Lead Agency. A. Prime architect - LMN Architects, 801 Second Ave, Suite 501, Seattle, WA. LMN will also provide interior design services for all public areas (limited to selection of finish materials and colors, it excludes space planning or interior design services for office or retail tenant improvements). LMN will contract directly with specialty consultants for design of the convention center. Specialty consultants may include: lighting designer; acoustical engineer; kitchen consultant. B. Permitting services - Rice Fergus Miller, 262 Fourth Street, Bremerton, WA. Rice Fergus Miller to research, make application, attend meetings for SEPA, City of Bremerton Shorelines Management Master Program and City of Bremerton Conditional Use Permit. C. Landscape architects - McCleod Reckord, 231 Summit Ave. East, Seattle, WA. D. Surveyor - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. E. Civil engineer - To be determined F. Environmental inspection services - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. G. Geotechnical consultant - Terra & Associates, 12525 Willows Road, Suite 101, Kirkland, WA. H. Structural engineer - Cary Kopczynski & Company, 155 108th Ave. N.E., Suite 220, Bellevue, WA. I. Construction consultant- Opus Northwest L.L.C. 915 llSthAve S.E., Suite 300, Bellevue, WA. J. Parking consultant-TDA Inc., 615 2nd Ave., Suite 680, Seattle, WA K. Fire sprinkler design-builder - Patriot Fire Protection, 2707 70th Ave. E, Tacoma, WA 98424. L. Plumbing design-builder - Stirrett-Johnsen, 5555 Westgate Road N.W., Silverdale, WA. M. HVAC & controls design-builder - Encompass, 7717 Detroit Ave., SW, Seattle, WA 98106. N. Electrical design-builder - Valley Electric, 21919 20th Avenue Se, Suite 200, Bothell, WA 98021. O. Elevator consultant - Elevator Consulting Services, 15600 NE 8th Street, Suite B1, PMB 14E, Bellevue, WA. P. Corrosion consultant - Norton Corrosion Limited, 8820 222nd Street SE, Woodinville, WA. 98072 FIRST AND WASHINGTON CONFERENCE CENTER DATE: 6/19/2002 EXHIBIT I - ATTACHMENT # 2 - CONSULTANTS PAGE 1 OF 1 EXHIBIT I BREMERTON CONFERENCE CENTER SCOPE OF SCHEMATIC DESIGN SERVICES The intent of this Document is to provide additional services and/or deliverables beyond those contracted in "Agreement Between The City of Bremerton and Opus Northwest" DRAFT dated 5/6/02. Opus Northwest continues to act as Designer/Developer (Developer) for the City of Bremerton (Lead Agency). Scope of Services will build and expand upon those services begun in Agreement. In the event of conflict between this document and the Agreement, this document shall take precedence. Scope of Services (Schematic Design Phase): A. PREDEVELOPMENT SCOPES: Complete the previous services started in 5-6-02 Attachment #1 these will include: environmental testing of soils and water at two site borings. Opus shall provide summary report, as they are complete for: geo-tech investigation, ALTA and Typo Survey, structural findings, architectural findings, and environmental Phase I Parking analysis. B. PROGRAMING: The Developer shall refine public program needs using Opus/LMN Architects proposal as a baseline. Lead Agency to collect and forward all public agency programming requirements as well as budget and funding requirements. The Developer shall provide comments on the public program, schedule and construction budget. Developer shall itemize any special program requirements of agencies for internal cost accounting purposes. Review existing codes and make recommendations for changes to provide ultimate project performance. Codes to be review include: UBC, planning, zoning (use studies), SEPA, shorelines. At the completion of the Schematic Design Phase, the Developer shall provide Lead Agency with final private program. Private program elements being considered include those listed in the Agreement (hotel, restaurant, retail space, office space, residential). C. SCHEMATIC DESIGN MEETINGS: The Developer shall periodically review schematic design progress with the Lead Agency Project Manager. Design issues will include: integration of Public and Pdvate programming needs; vertical circulation between mixed use components; design character of complex; construction issues related to design considerations and sequencing; costing options as appropriate; primary systems (structural, mechanical & electrical, elevators); D. SCHEMATIC DESIGN DOCUMENTS: Final schematic design documents shall illustrate the scale, relationship and architectural character of both public and pdvate project components. Pdvate project components are to include: hotel, retail, restaurant and office. Developer may or may not proceed with the private residential component. Private schematic design submittals will include: site plan, floor plan(s), roof plan(s), extedor elevations, typical building section, schematic finish selection of intedor and exterior, outline specifications, rendering of entire campus and architectural study model. E. PUBLIC CONSTRUCTION ESTIMATE: Base on mutually agreed-upon construction start date and public schematic design documents Developer shall provide Total Public Construction Estimate. Estimate shall be broken down into five main categories: parking structure; conference center; Harbor master unit; off site and on site improvements (except for landscape and hardscape); landscape and hardscape improvements. Estimate will be in systems estimate format (off site, on site, substructure, superstructure, extedor closure, intedor construction, conveying, mechanical, electrical, General Conditions, insurance, contingency and fee). Construction estimate will also include clarifications and assumptions (with allowance for special work as required) and proposed construction schedule. F. PRECONSTRUCTION SCHEDULE: Developer shall provide design schedule for project from schematic design phase completion to start of construction. FIRST AND WASHINGTON CONFERENCE CENTER Date: 5/31/2002 EXHIBIT I PAGE 1 OF 2 G. TOTAL PROJECT COSTS: Developer shall provide at completion of Schematic Phase "Total Project Costs (TPC)" for public program requirements. TPC shall itemize soft and hard costs. Soft costs being such items as: government charges, design fees, inspection and testing costs; surveys, taxes (real estate, sales, B&O, etc), utility charges and assessments, pdnting costs, legal fees, insurance (environmental, liability, etc), revenue (pad sales, parking garage, etc), start up costs, project contingencies, etc. Hard costs being: construction costs, general conditions, taxes and insurance, construction contingencies. H. DELIVERABLES: 1. Based on Lead Agency approval of Schematic Design direction, prepare and submit to Lead Agency schematic design documents for Parking Garage, Conference Center, Marina and Plaza. Schematic design drawings to include discipline design schemes for. architectural, structural, mechanical & electrical (design-build), landscaping, civil. Deliverable shall consist of: program needs (with code restraints and suggested changes); site plan; floor plan(s); roof plan(s); extedor elevations; typical building sections; schematic finish selection for interior and exterior, outline specifications, construction estimate, construction schedule, construction assumptions and clarifications, Preconstruction Schedule and Total Project Costs. I. ADDITIONAL AGREEMENTS: Prior to the completion of the Schematic Design phase, Lead Agency and Developer will endeavor to resolve contract language for: Pad Sale Agreement between Lead Agency and Developer; Design-Build Agreement (for work from Design Development thru construction). J. ATTACHMENT # 1 - FEES: Developer costs and fees for this Phase of Services is attached herein as Attachment # 1. K. ATTACHMENT # 2 CONSULTANTS: The Developer anticipates using design and testing consultants as attached herein as Attachment # 2. L. ATTACHMENT # 3 - SCHEMATIC DESIGN SCHEDULE: The Developer schedule for Schematic Design Phase is attached herein as Attachment # 3. FIRST AND WASHINGTON CONFERENCE CENTER Date: 5131/2002 EXHIBIT I PAGE 2 OF 2 ATTACHMENT # 1 DEVELOPER COSTS AND FEES. FIRST AND WASHINGTON CONFERENCE CENTER, BREMERTON, WA. Exhibit I Fees. !City of Bremerton Costs Approved Exhibit I' Fees Schematic~ Total Description/services To date Fees Fee / cost Survey of land I ,$15,000 ALTA Survey $15,000 [ $15,000 Soil & enviormental I $23,660 Legal - TBD Enviormental Parametrix $8,000 $15,660 $23,660 DESIGN FEES Architect & interiors - prime (LMN} I ~ Programing & conceptual $20,000 $10,740 $30,740 Fee reduction agreed to by LMN -$5,000 -$5,000 Schematic $135,010 $135,010 Land use permit expeditor (Rice Fergus Miller) IL55,000 Programing & conceptual Schematic $5,000 $5,000 Parking Report iL $5,8og Programing & conceptual $2,000 $2,000 Schematic $3,800 $3,80C Civil Engineering [ $69,50(~ Programing & conceptual $17,375 $17,375 Schematic $52,125 $52,125 Landscape Architect [ 535,566 Programing & conceptual $20,302 $20,302 Schematic $15,264 $15,26zl Structural engineer Il $32,30-~ Programing & conceptual $10,000"1 $10,000' Schematic $22,303 $22,303 Fire sprinkler design (Design-build) II 54,570 Programing & conceptual Schematic $4,570 $4,570 Plumbing design (Design-build) I[ ',$5,41~ Programing & conceptual Schematic $5,418 $5,418 HVAC & Controls design (Design-build) ![ $3,657 Programing & conceptual Schematic $3,667 $3,667 Electrical design (Design-build) [ $16,392 Programing & conceptual $6,039 $6,039 Schematic $10,353 $10,353 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT t ATTACHMENT # 1 - FEES Page 1 / 2 ~ Q Date: 5/31/02 O ATTACHMENT # 1 DEVELOPER COSTS AND FEES. FIRST AND WASHINGTON CONFERENCE CENTER, BREMERTON, WA. Exhibit I Fees. City of Bremerton Costs Approved Exhibit Fees Schematic Total Description/services To date Fees Fee / cost Elevator consulting services $2,00C Programing & conceptual Schematic $2,0001 $2,000 Corrision Consultant Programing & conceptual Schematic $5,0001 $5,000 INSPECTION AND TESTING SERVICES. Geotechnical Engineering Programing & conceptual $20,000 $20,000 Schematic Printing and reimbursables (excluded per Agreement) Programing & conceptual Schematic AJE fee contingency $15,O00I Programing & conceptual Schematic $15,000 $15,000 Pre. Construction Services. Programing & conceptual $12,000 $12,000 Schematic $36,000 $36,000 Summary of fees - SUBTOTAL > $87,000 $380,626 $467,626 Opus Fee @ 8.5% $7,395 $32,353 $39,748 $94,395 $412,979 $507,374 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I ATTACHMENT # 1 - FEES Page 2/2 ~,,,~ Date: 5131102 'tl ATTAC HM ENT # 2 BREMERTON CONFERENCE CENTER LIST OF CONSULTANT FOR SCHEMATIC DESIGN The intent of this Attachment is to list Consultants the Developer intends to use to complete public services and/or deliverables indicated in Scope of Services. Developer has not completed all Professional Service Agreements with Consultants, if Developer and Consultant can not agree to terms or scope the Developer can submit alternate Consultant to Lead Agency. A. Prime architect - LMN Architects, 801 Second Ave, Suite 501, Seattle, WA. LMN will also provide interior design services for all public areas (limited to selection of finish materials and colors, it excludes space planning or interior design services for office or retail tenant improvements). LMN will contract directly with specialty consultants for design of the convention center. Specialty consultants may include: lighting designer; acoustical engineer; kitchen consultant. B. Permitting services - Rice Fergus Miller, 262 Fourth Street, Bremerton, WA. Rice Fergus Miller to research, make application, attend meetings for SEPA, City of Bremerton Shorelines Management Master Program and City of Bremerton Conditional Use Permit. C. Landscape architects - McCleod Reckord, 231 Summit Ave. East, Seattle, WA. D. Surveyor - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. E. Civil engineer - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. F. Environmental inspection services - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. G. Geotechnicai consultant- Terra & Associates, i2525 Willows Road, Suite 101, Kirkland, WA. H. Structural engineer - Cary Kopczynski & Company, 155 108th Ave. N.E., Suite 220, Bellevue, WA. I. Construction consultant - Opus Northwest L.L.C. 915 118th Ave S.E., Suite 300, Bellevue, WA. J. Parking consultant - TDA Inc., 615 2nd Ave., Suite 680, Seattle, WA K. Fire sprinkler design-builder - Patriot Fire Protection, 2707 70th Ave. E, Tacoma, WA 98424. L. Plumbing design-builder- Stirrett-Johnsen, 5555 Westgate Road N.W., Silverdale, WA. M. HVAC & controls design-builder- Encompass, 7717 Detroit Ave., SW, Seattle, WA 98106. N. Electrical design-builder- Nelson Electric, 9620 Stone Ave. North, Suite 101, Seattle, WA 98103. O. Elevator consultant- Elevator Consulting Services, 15600 NE 8th Street, Suite B1, PMB 14E, Bellevue, WA. P. Corrosion consultant - Norton Corrosion Limited, 8820 222nd Street SE, Woodinville, WA. FIRST AND WASHINGTON CONFERENCE CENTER DATE: 5/'31/2002 EXHIBIT I - ATTACHMENT # 2 - CONSULTANTS PAGE 1 OF 1 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Concession Agreement FOR AGENDA OF: June 19 & 26, 2002 Bet~veen the City of Bremerton and ORIGINATING DEPT: Parks & Recreation Silverdale Ice Arena, Inc. ORIGINATOR: Jim Spencer, Director DATE SUBMITTED: June 11, 2002 2. CLEARANCES,;~----~-----~__ ~__._.~3_ FXHIBITS: (Comment on back City Attom~~7 ~ Concession AgreementbetweentheCityof ~/~{Q, Bremerton and Silverdale Ice Arena, Inc. Fiscal & Budget Committee: Letter of support from the Kitsap Family YMCA Letter from National Parks Service dated May 14, Operations committee: ,:// ~ 2002 ENDORSEMENT INFORMATION · APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR: ~ ~' COUNCIL PRESIDENT: c..~,~d/~__. 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The Bremerton Parks & Recreation Department has been working with Silverdale Ice Arena, Inc., on their proposal to build and operate an ice arena in Eastpark. The Parks & Recreation Commission unanimously approved pursuing the project at their March 26, 2002 meeting and has been updated as the project progressed. As a result of a presentation to the Kitsap Family YMCA Board of Directors' meeting on April 25, 2002 which described the project, a letter of support was provided. Additionally a letter from the National Park Service has found the construction and operation of the proposed facility to be consistent with the intent of the deed of conveyance, and conditional approval was provided subject to future environmental review. (continued on page 2) 8. RECOMMENDATION: NO ACTION WILL BE TAKEN ON JUNE 19, Z00Z. D, ToV~- MOTION TO BE MADE ON JUNE 26, 2002: To approve and authorize the Mayor to finalize and execute the concession agreement between the City of Bremerton and Silverdale Ice Arena, Inc. with substantially the same terms and conditions as contained in the proposed agreement, subject to final approval of the contract language by the City Attorney, and further subject to the final approval of the agreement by the US Secretary of the Interior through the National Park Service. 9. RESPONSIBLE OFFICIAL: Jim Spencer, Director ENFORCEMENT OFFICIAL: Jim Spencer, Director EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION ~ PULLED TABLED APPROVED DISAPPROVED__7~-- COLqqCIL DIRECTIVE: DATE: AGENDA BILL 2. CLEARANCE COMMENTS: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION (continued): The City and the Silverdale Ice Arena, Inc. (Concessionaire) developed this concession agreement that calls for a term of 10 years plus four additional 10 year renewal options provided that Concessionaire is in good standing under the terms of the agreement and that Concessionaire notifies the City of it' s intent to exercise it's renewal option(s) as outlined in the agreement. Additionally, the concession agreement reflects a proper reimbursement arrangement by which the City Parks & Recreation Department has use of the facility for 169 hours per year. The scheduling of such hours is outlined in the Agreement. The Agreement also calls for mutually agreed upon conditions for the operations and maintenance of the facilities. 5. IMPACT OF NON-PASSAGE: Silverdale Ice Arena, Inc. will not be able to go forward with their plans. 6. IMPACT ON STAFFING~ BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: Locating this facility in close proximity to the Glenn Jarstad Aquatic Center and the Kitsap Family Y.M.C.A. will make Eastpark a recreation destination capable of serving a wide range of interests. Additional maintenance or operation impacts at the park will be minimal. 7. RESEARCH SOURCES: A similar type of arrangement between the City of Bremerton and the Olympic Soccer & Sports Center at Pendergast Regional Park has been successful. DRAFT 6/11/2002 CONCESSION AGREEMENT BETWEEN CITY OF BREMERTON AND SILVERDALE ICE ARENA, INC. DRAFT 6/11/2002 TABLE OFCONTENTS RECITALS ......................................................................................................................... 1 ARTICLE 1. GROUND AND USE CONCESSION ......................................................... 2 1.1 Concession of Premises ............................................................................................ 2 1.2 Possession, Quiet Enjoyment & Covenants Real ..................................................... 3 1.3 CITY Payment to CONCESSIONAIRE .................................................................. 3 ARTICLE 2. TERM OF AGREEMENT ............................................................................ 3 2.1 Term .......................................................................................................................... 3 2.2 Option to Renew ....................................................................................................... 3 ARTICLE 3. CONSIDERATION ...................................................................................... 4 3.1. Consideration for Concession .................................................................................. 4 3.1.1 Premises Use in Lieu of Cash ........................................................................... 4 3.1.2 Leasehold Excise Tax ....................................................................................... 4 3.2 Ice arena Equipment/Personal Property Use ............................................................. 5 3.3 Timing of Consideration Payment ............................................................................ 5 3.4 Premises Use by CITY .............................................................................................. 5 3.4.1. Types of Use ..................................................................................................... 5 3.4.2 Maintenance & Utility Costs/Clean-Up After Use ............................................ 5 3.4.3 Damage, Claims, & Liability ............................................................................. 5 3.5 Scheduling Premises Use by CITY ........................................................................... 6 3.5.1 Summer Quarter ................................................................................................. 6 3.5.2 Fall, Winter, and Spring Quarters ...................................................................... 6 3.6 CITY's Increased Premises Use ............................................................................... 6 ARTICLE 4. USE & OPERATION OF PREMISES ......................................................... 6 4.1 Use of Premises ......................................................................................................... 6 4.1.1 Indoor Ice Arena and Recreational Uses ........................................................... 6 4.1.2 Incidental Uses ................................................................................................... 6 4.1.3 Sub-Concessions ................................................................................................ 7 4.1.4 Security and Nuisance During Use .................................................................... 7 4.2 Operating Hours ........................................................................................................ 7 4.3 Entry by CITY .......................................................................................................... 7 4.4 Health Inspections ..................................................................................................... 7 4.5 Maintenance, Repair, & Improvements .................................................................... 8 4.5.1 Maintenance ....................................................................................................... 8 4.5.2 Sidewalks and Parking Maintenance ................................................................. 8 4.5.3 Janitorial and Landscaping Services .................................................................. 8 4.5.4 Repair of Damage .............................................................................................. 8 4.5.6 Improvements .................................................................................................... 9 4.5.7 Alterations of Improvements after Construction ............................................... 9 4.6 Signs .......................................................................................................................... 9 4.7 Utilities ...................................................................................................................... 9 4.7.1 Utility Services and Expense ............................................................................. 9 4.7.2 Trash & Garbage ................................................................................................ 9 4.8 Parking ...................................................................................................................... 9 4.9 Hazardous Substances ............................................................................................. 10 CONCESSION AGREEMENT DRAFT 6/11/2002 4.9.1 Definition ......................................................................................................... 10 4.9.2 Information ...................................................................................................... 10 4.9.3 Indemnification ................................................................................................ 10 4.10 Risk of Loss .......................................................................................................... 10 ARTICLE 5. DESIGN & CONSTRUCTION OF PREMISES ........................................ 11 5.1 Design ..................................................................................................................... 11 5.2 Building & Site Plans .............................................................................................. 11 5.3 ConstructiorffSite Work/Fencing ............................................................................ 11 5.4 Construction Deadlines ........................................................................................... 11 5.5 Failure to Meet Construction Deadlines/Time of Essence .....................................12 5.6 Stormwater Drainage, Sewer, & Water Lines ........................................................ 12 5.7 Development and Construction Fees & Expenses .................................................. 12 5.8 CONCESSIONAIRE's Development Project ......................................................... 12 5.9 No Liens .................................................................................................................. 12 ARTICLE 6. FINANCING & SECURITY INTERESTS ................................................ 13 6.1 Financing - No CITY Obligation ............................................................................ 13 6.2 Security Interest in Premises & Agreement/Consent .............................................. 13 6.3 LENDER's Reliance on Term and Renewal Options ............................................. 14 6.4 Surrender of the Collateral ...................................................................................... 14 6.5 Notice of Default and Lender's Rights ................................................................... 14 6.5.1 Notice of Default .............................................................................................. 14 6.5.2 Termination for Monetary Default ................................................................... 14 6.5.3 Termination for Non-Monetary Default .......................................................... 15 6.5.4 Termination due to Bankruptcy ....................................................................... 15 6.6 Right to Assign ....................................................................................................... 15 6.7 Disposition of Insurance ......................................................................................... 15 6.8 Right to Participate in Litigation ............................................................................. 16 6.9 Incorporation of Lender's Protection Provisions .................................................... 16 6.10 Right to Remove Collateral .................................................................................. 16 6.11 Notices .................................................................................................................. 16 6.12 Lenders Change in Loan Terms ........................................................................... 16 ARTICLE 7. TERMINATION ......................................................................................... 17 7.1 Failure to Perform ................................................................................................... 17 7.1.1 Obligation to Perform ...................................................................................... 17 7.1.2 Payments to Other Parties ................................................................................ l 7 7.2 Default and Termination ......................................................................................... 17 7.2.1 CITY's Default ................................................................................................ 17 7.2.2 CONCESSIONAIRE's Default ....................................................................... 17 7.2.3 Default for Other Cause ................................................................................... 18 7.2.4 Bankruptcy ...................................................................................................... 18 7.3 Remedies Are Cumulative ...................................................................................... 18 7.4 Destruction of Premises & Use of Insurance Proceeds .......................................... 18 7.5 Duties upon Termination ........................................................................................ 19 7.6 Eminent Domain ..................................................................................................... 19 7.6.1 Rights of Termination ...................................................................................... 19 7.6.2 Non-Termination .............................................................................................. 19 CONCESSION AGREEMENT 10~O ii DRAFT 6/11/2002 7.6.3 Compensation .................................................................................................. 19 ARTICLE 8. GENERAL CONDITIONS ......................................................................... 20 8.1 Relationship of Parties ............................................................................................ 20 8.1.1 CONCESSIONAIRE Independent Contractor Status ..................................... 20 8.1.2 No Third Party Rights Created ........................................................................ 20 8.1.3 No Joint Venture/Partnership ........................................................................... 20 8.1.4 City Adminstration of Agreement ................................................................... 20 8.2 Notices .................................................................................................................... 20 8.3 Reports & Information ............................................................................................ 21 8.4 Permits, Licenses, Taxes, & Fees ........................................................................... 21 8.4.1 Permits, Licenses, & Other Documents ........................................................... 21 8.4.2 Taxes & Fees .................................................................................................... 21 8.5 Insurance ................................................................................................................. 21 8.5.1 Fire, Earthquake, & Casualty Insurance .......................................................... 21 8.5.2 Liability Insurance ........................................................................................... 22 8.5.3 Release and Waiver of Subrogation ................................................................. 22 8.6 Hold Harmless, Indemnification, & Industrial Insurance ....................................... 22 8.6.1 Hold Harmless & Indemnification ................................................................... 22 8.6.2 Industrial Insurance .......................................................................................... 23 8.7 Successors & Assigns ............................................................................................. 23 8.8 Compliance with Laws ........................................................................................... 23 8.9 Nondiscrimination ................................................................................................... 24 8.10 Choice of Law & Venue ....................................................................................... 24 8.11 Costs & Attorneys' Fees ....................................................................................... 24 8.12 Modification .......................................................................................................... 24 8.13 Change in Law/Renegotiation ............................................................................... 24 8.14 Force Majeure ....................................................................................................... 25 8.15 Waiver ................................................................................................................... 25 8.16 Illegal Provisions - Severability ............................................................................ 25 8.17 Article Headings, Gender, & Number .................................................................. 25 8.18 Entire Agreement .................................................................................................. 25 8.19 Counterparts .......................................................................................................... 25 8.20 Recording .............................................................................................................. 25 8.21 Approval of Agreement ....................................................................................... 26 Exhibit A - Legal Description of Premises Exhibit B - Preliminary Building and Site Plans Exhibit C - Appraisal and Compensation Information CONCESSION AGREEMENT [ 0 7 iii DRAFT 6/11/2002 CONCESSION AGREEMENT THIS CONCESSION AGREEMENT ("Agreement") is entered into effective the __ day of ,2002 (hereinafter referred to as the "EFFECTIVE DATE"), by and between the CITY OF BREMERTON, a Washington municipal corporation (hereinafter referred to as the "CITY"), and SILVERDALE ICE ARENA, INC. a Washington corporation (hereinafter referred to as the "CONCESSIONAIRE"), referred to collectively as the "Parties." RECITALS WHEREAS, the CITY is owner of the property commonly known as Eastpark; and WHEREAS, the CITY owns undeveloped land within the confines of the Eastpark available for development of an indoor ice arena facility; and WHEREAS, the CONCESSIONAIRE has the experience, ability, and resources to develop and operate an indoor ice arena facility; and WHEREAS, the Parties intend this Agreement to be a ground and use concession allowing the CONCESSIONAIRE to develop, construct, and operate an indoor ice arena facility, for profit, on certain undeveloped land within the confines of Eastpark and which said land will remain property of the CITY; and WHEREAS, the Parties agree that no joint venture or partnership is forn~ed as a result of this Agreement; and WHEREAS, the CONCESSIONAIRE will be responsible for the design and construction of an indoor ice arena facility, adequate parking and exterior landscaping on the CITY's real property, which visually blend with the setting, which are to be constructed within the confines of Eastpark, and all improvements to the real property will become property of the CITY at the termination of this Agreement; and WHEREAS, the CITY shall have the right to approve the final design of the improvements and shall have a continuing right to approve the exterior color of any structure on the property; and WHEREAS, the CONCESSIONAIRE will be responsible for obtaining all necessary financing for the development and operation of the indoor ice arena facility; and WHEREAS, it is mutually understood by the Parties that any lender xvho provides the CONCESSIONAIRE financing, re-financing, credit lines or equipment leases, for the development and ongoing operations of the improvements and business CONCESSION AGREEMENT Page [ l0~ DRAFT 6/11/2002 operations will require this Agreement as protection and security for lender ("lender") The term "lender" shall also mean the successors and assigns of the lender; and WHEREAS, the CITY will acknowledge and consent to lender taking a first position security interest in this Agreement and the Improvements, lender taking an assignment of the right, title, claim and interest of CONCESSIONAIRE in this Agreement, lender obtaining the right of substitution for CONCESSIONAIRE, lender taking possession of the concession and improvements, lender operating the indoor ice arena facility pursuant to the terms of this Agreement, and/or lender selling, assigning and/or transferring CONCESSIONAIRE'S interest in this Agreement; WITNESSETH: NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth in this Agreement, the Parties agree as follows: ARTICLE 1. GROUND AND USE CONCESSION 1.1 Concession of Premises CITY hereby grants a ground and use concession to CONCESSIONAIRE of approximately one hundred sixteen thousand seven hundred twenty five square feet (116,725 sq. ft.) of undeveloped land (65,000 sq. ft. for facility, limited parking and landscaping and 51,725 sq. ft. for parking and landscaping) located within the confines of Eastpark (hereinafter referred to as "Concession") on real property legally described in Exhibit A attached hereto and incorporated by reference for development, construction, maintenance, and operation, for profit, of an indoor ice arena facility including building(s), fixtures, appurtenances, parking and exterior landscaping (hereinafter referred to as "Improvements"), and generally shown in the preliminary building and site plan in Exhibit B attached hereto and incorporated by reference. (Collectively referred to as "Premises") (Premises does not include the fee ownership of the real property upon which the Improvements are located). The CITY represents and warrants that the Premises are currently zoned for the uses contemplated hereunder and no further proceedings are required therefor. CONCESSIONAIRE hereby agrees to the terms and conditions of this Agreement. The Parties agree that the Premises are currently undeveloped with no permanent structures, and that any and all development and construction of improvements to the Premises are owned by CONCESSIONAIRE during the term of this Agreement, subject to any security interest of lender, if any. Upon the expiration of the term(s) of this Agreement pursuant to Article 2, or upon the termination of this Agreement, other than as a result of condemnation proceedings, the then existing improvements on the Premises will become the property of and owned by the CITY subject to lenders fights as set for in Article 6. The common address of the Premises is Homer Jones Bremerton WA, 98310. If in the future, during the term of this concession, a piece of property or' comparable worth to the real property described in Exhibit A and the concession consideration described in Exhibit C and considered a valuable addition to the Bremerton CONCESSION AGREEMENT Page 2 DRAFT 6/11/2002 Parks and Recreation inventory becomes available, the CITY would consider a property trade with the CONCESSIONAIRE assuming all the requirements of the Department of Interior and the Quitclaim Deed conveying the property to the CITY and related CITY ordinances are met. The CITY, at its sole discretion, may accept or reject any proposal for such property trade. 1.2 Possession, Quiet Enjoyment & Covenants Real Except as provided in Articles 3 & 4.3 herein, the CONCESSIONAIRE shall be entitled to exclusive possession of the Premises, except the parking areas, upon commencement of the development and construction of the Improvements as set forth by Article 5.4 herein. Upon taking possession of the Premises, and on performing all the covenants and conditions herein, the CONCESSIONAIRE shall peaceably and quietly have, hold, and enjoy the Premises at all times during the full term of this Agreement. Every covenant in this Agreement shall be deemed and treated to be a covenant running with the Premises during the full term of the Agreement, and shall extend to the heirs, legal representatives, successors, and assigns of the Parties. No change in CITY's ownership of the Premises, or rights to the payments hereunder, however accomplished, shall operate to enlarge the obligations or reduce the rights of CONCESSIONAIRE. No change in CITY's ownership of the Premises shall be binding upon CONCESSIONAIRE for any purpose until CONCESSIONAIRE shall have been given notice thereof. 1.3 CITY Payment to CONCESSIONAIRE In addition to the concession granted herein and as an incentive to CONCESSIONAIRE to locate an indoor ice arena facility within the City of Bremerton and to help defray the costs of relocating the facility from the initially proposed site in Kitsap County and in consideration of additional future use of the Premises by the CITY as set forth in Article 3, the CITY shall pay CONCESSIONAIRE $175,000 as follows: $100,000 upon issuance of a building permit for the ice arena structure, and $75,000 upon completion of the roof of the structure. ARTICLE 2. TERM OF AGREEMENT 2.1 Term The term of this Agreement shall be 10 years, commencing upon the EFFECTIVE DATE of this Agreement. 2.2 Option to Renew The CITY agrees to offer the CONCESSIONAIRE tour (4) successive ten (10) year options to renew this Agreement, contingent upon CONCESSIONAIRE remaining in full compliance with the terms and conditions of this Agreement and further contingent on the CITY accepting the level of insurance coverage required in Section 8.5.2 for the new 10 year term exercised by CONCESSIONAIRE, which acceptance will not be unreasonably denied. To execute an option for renewal, the CONCESSIONAIRE, not more than 180 days and not less than 60 days prior to the expiration of term. shall give written notice to the CITY that the CONCESSIONAIRE is exercising the CONCESSIONAIRE's option tbr an additional ten (10) vear term. The CONCESSION AGREEMENT Page 3 DRAFT 6/11/2002 CONCESSIONAIRE's written notice shall include a sworn affidavit that the CONCESSIONAIRE is currently in full compliance with the terms and conditions of this Agreement. The option will become effective upon receipt by the CITY of CONCESSIONAIRE's written notice and sworn affidavit and no further process or documentation will be required, provided, however upon CONCESSIONAIRE's request, the CITY shall provide a written acknowledgement that such option has been exercised and is in effect. If the option(s) to renew are not exercised, then the Agreement shall expire at the conclusion of the expiring term. ARTICLE 3. CONSIDERATION 3.1. Consideration for Concession. 3.1.1 Premises Use in Lieu of Cash As consideration for the ground and use concession granted by the CITY to the CONCESSIONAIRE and the payment of $175,000 by the CITY to CONCESSIONAIRE pursuant to Article 1.3, the CONCESSIONAIRE shall provide fair and equitable compensation to the CITY based upon an appraisal of the Premises at the effective date of this Agreement conducted on behalf of the CITY by a certified appraiser pursuant to the Appraisal and Compensation Information described in Exhibit C attached hereto and incorporated by reference. In lieu of cash payments, the annual compensation provided by the CONCESSIONAIRE to the CITY shall be in the form of hours of use of the Premises as established in Exhibit C. Premises use by the CITY shall be governed by Article 3.3 herein. Said kinds of use to be determined at the sole discretion of the CITY, so long as such use is not incompatible with the facility's design purpose(s). 3.1.2 Leasehold Excise Tax CONCESSIONAIRE agrees to pay, in addition to other taxes and fees pursuant to Article 8.4.2, the leasehold excise tax pursuant to Chapter 82.29A RCW. The tax will be based on the current appraised value of use of the property through this concession agreement (concession rate value) as set forth in Exhibit C in the amount of $23,112 per year. Since consideration to the City for this property use consists of hours of ice time at the Premises established through a formula based upon the current hourly value of ice time, no adjustments will be made for the property use or value of ice time during the term(s) of this agreement. Therefore, for purposes of assessment and payment of the leasehold tax only, the appraised value of the use of the property ($23,112) will be adjusted and increased every five years during the term(s) of this agreement based upon a rate of(2%) two percent per year. In addition, CONCESSIONAIRE agrees to pay when due, the leasehold excise tax, or any additional assessments thereto, with respect to any payment or obligation hereunder, which is deemed by the State of Washington to be taxable rent under said chapter and to indemnify and hold the City harmless from the same. CONCESSIONAIRE shall pay quarterly to the City by the fifteenth day of the month following the end of each quarter, or as otherwise required by the State of Washington, the amount of the leasehold tax owing. The leasehold tax will begin CONCESSION AGREEMENT Page 4 DRAFT 6/11/2002 accruing on the beginning of the first full month of issuance of the building permit for the ice arena structure. 3.2 Ice arena Equipment/Personal Property Use Premises use by the CITY received as consideration for this Agreement does not include the use by the CITY of any of the CONCESSIONAIRE's ice arena equipment or other personal property. Use by the CITY of any of the CONCESSIONAIRE's ice arena equipment or other personal property will be negotiated separately between the CITY and the CONCESSIONAIRE and is outside the scope of this Agreement. 3.3 Timing of Consideration Payment The consideration paid by the CONCESSIONA/RE in the form of Premises use by the CITY shall commence accruing from the date the Occupancy Permit is issued. It is mutually understood and agreed that the CITY can receive its full annual compensation of hours of Premises use at any time during the 12 month period-beginning with the date CONCESSIONIARE receives the occupancy permit for use and every 12 month period thereafter. It is mutually understood and agreed to that any CITY hours which are unused in a given year do not accrue or transfer over into a new year unless mutually agreed. 3.4 Premises Use by CITY 3.4.1. Types of Use The hours of Premises use provided by the CONCESSIONAIRE to the CITY in consideration for this Agreement are intended to provide recreational opportunities of a suitable and compatible nature for the residents of the CITY as part of the Parks and Recreation programs. Such Premises use by the CITY shall be without cost to the CITY to the extent of the annual hours of use of the Premises, pursuant to Articles 3.1, 3.2 and 3.3 herein. This will exclude the use of proprietary or sub-concessioned spaces within the facility, including but not limited to management offices, refrigeration and maintenance areas, and fitness club. It is mutually understood that the CITY will, under all reasonable conditions, have the use of the ice surface (CONCESSIONNAIRE will provide a clean surface prior to CITY use), party (multi-use) and team rooms, first aid room, lobby and restrooms. 3.4.2 Maintenance & Utility Costs/Clean-Up After Use The CONCESSIONAIRE shall be responsible for all overhead costs, including the utilities and general maintenance, of the Premises during the use of the Premises by the CITY. The CITY agrees to clean-up the Premises after each CITY use. 3.4.3 Damage, Claims, & Liability The CITY shall be responsible for all damage or claims that may arise out of the Premises use by any of the CITY's employees, agents, guests, or invitees. The CITY, during such periods of use, shall supervise or cause the CITY's employees, agents, guests, or invitees to be supervised, The provisions tbr mutual indemnity, hold hannless, and liability insurance pursuant to Articles 8.5 & 8.6 herein apply during Premises use by the CITY. CONCESSION AGREEMENT Page 5 DRAFT 6/11/2002 3.5 Scheduling Premises Use by CITY The CITY and the CONCESSIONAIRE shall meet at least quarterly and other times as necessary, to determine how such Premises use hours shall be allocated to the CITY in the upcoming quarter in accordance with the following provisions. 3.5.1 Summer Quarter The CITY shall have the full discretion to determine which hours of Premises use the CITY intends to use during the Summer quarter (June, July, and August) of each year. At the CITY'S discretion, the CITY has the fight to schedule its full annual compensation of hours of premises use during the summer quarter, however, it is mutually understood and agreed to that, unless CONCESSIONAIRE agrees otherwise in advance, the maximum hours the CITY may schedule in a single calendar month is 70 hours. 3.5.2 Fall, Winter, and S£ring Quarters The CONCESSIONAIRE shall have the full discretion to determine which hours of Premises use the CONCESSIONAIRE intends to use during the Fall quarter (September, October, and November), Winter quarter (December, January, and February), and Spring quarter (March, April, and May) of each year. The Concessionaire has the right to schedule the CITY'S remaining compensation, if any, of Premises use not previously scheduled by the City during the Summer quarter. 3.6 CITY's Increased Premises Use The CITY may increase its hours of Premises use beyond its annual compensation by paying to the CONCESSIONAIRE an hourly rate then in effect by the CONCESSIONAIRE and with scheduling at the discretion of the CONCESSIONAIRE. ARTICLE 4. USE & OPERATION OF PREMISES 4.1 Use of Premises 4.1.1 Indoor Ice Arena and Recreational Uses The CONCESSIONAIRE will use and occupy the Premises throughout the full term of this Agreement for the purpose of providing indoor ice sports, fitness, recreation, and community activities directly related to the operation of an indoor ice arena. 4.1.2 Incidental Uses The CONCESSIONAIRE may provide incidental uses in the form of food and beverage and the sale or rental of incidental items directly related to the use of the ice arena facility including, bm not limited to, ice sports, fitness and athletic equipment, soap, shampoo, and similar shoxver supplies, and clothing related to ice arena and fitness pursuits. This includes hiring vendors and/or sub-concessions of interior space of the indoor ice arena facility. CONCESSIONAIRE agrees that no alcohol will be sold or consumed on the premises. CONCESSION AGREEMENT Page (5 11.3 DRAFT 6/11/2002 4.1.3 Sub-Concessions All sub-concessions will require the prior written consent of the CITY, which consent will not be unreasonably withheld, and comply with any requirements of the U.S. Secretary of Interior for the granting of concessions on the subject property pursuant to Article 8.21. 4.1.4 Security and Nuisance During Use The CONCESSIONAIRE shall take reasonable precautions in securing the Premises during the full term of this Agreement. The CONCESSIONAIRE shall use the Premises for no unlawful purposes and shall not use or occupy the Premises in any manner, which would constitute a public nuisance or violate State or CITY laws. 4.2 Operating Hours The availability of recreational opportunities for CITY residents is a material consideration for this Agreement. Accordingly and during the full term of this Agreement, the CONCESSIONAIRE shall continuously conduct and carry on the CONCESSIONAIRE'S permitted uses and shall keep the Premises open for business and cause the CONCESSIONAIRE'S business to be conducted therein during the usual business hours of each and every business day as mutually agreed upon. This provision shall not apply if the Premises should be closed and the business of CONCESSIONAIRE is temporarily suspended on account of weather conditions, power outages, labor strikes, lockouts, or similar causes beyond the reasonable control of CONCESSIONAIRE, or for maintenance, remodeling, repair, or renovation as approved by the CITY in writing (including approvals of any construction schedules.) The CONCESSIONAIRE covenants and agrees to provide sufficient personnel, and to keep the Premises adequately stocked with merchandise, recreational equipment, fixtures, and facilities so as to conduct its business in accordance with sound business practice. The CONCESSIONAIRE, in order to keep its business commitments, shall be in operation in accordance with sound business practice. 4.3 Entry by CITY CITY may enter the Premises at all reasonable times during normal hours of business operations to inspect; provide services required hereunder; post notices of CONCESSIONAIRE's noncompliance with the provisions of this concession, all without being deemed a constructive eviction. Any person or persons who may have an interest in the purpose of CITY's visit may accompany CITY. CITY has the right to use any and all means that CITY deems proper to open doors and gates in an emergency in order to obtain entry to the Premises. 4.4 Health Inspections CONCESSIONAIRE shall not knowingly commit or willfully permit to be committed any act or thing contrary to the rules and regulations prescribed by the local board of health, or which shall be contrarv to the laws, rules or regulations of any t'ederal, state or municipal authority. CONCESSIONAIRE shall allo~v the Bremerton-Kitsap County Health Department to make regular and ordinary inspections of the Premises as said health department may deem proper. CONCESSION AGREEMENT Page 7 DRAFT 6/11/2002 4.5 Maintenance, Repair, & Improvements 4.5.1 Maintenance CONCESSIONAIRE shall, at its sole cost and expense, clean and maintain the Premises, and make repairs, restorations, and replacements to all improvements to the Premises, including without limitation the heating, ventilating, air conditioning, mechanical, electrical, and plumbing systems, structural roof, wails, and foundations, roof coverings, sprinkling and irrigation systems, playing surfaces and the fixtures and appurtenances to the Premises as and when needed to preserve them in "first class" condition and repair (less normal wear from use) throughout the full term. CONCESSIONAIRE shall further keep in repair and maintain as necessary all machinery, equipment and facilities necessary for the playing of sports and the comfort of players. CONCESSIONAIRE shall paint the exterior of the buildings (except the metal) with such frequency as may be required to maintain their good, clean appearance. All such repairs, restorations, and replacements will be in quality and workmanship at least equal to the original work or installations. If CONCESSIONAIRE fails to make such repairs, restorations, or replacements, CITY may make them at the expense of CONCESSIONAIRE and such expense will be paid by CONCESSIONAIRE within fifteen (15) days after delivery of a statement for such expense. 4.5.2 Sidewalks and Parking Maintenance At its sole cost and expense, CONCESSIONAIRE shall maintain all sidewalks and parking lots on the Premises in good and presentable condition during the full term of this Agreement, shall be responsible for correcting any unsafe conditions, and shall be responsible for the removal of ice and snow from the sidewalks and parking lots as necessary for safe operation of the Premises. 4. 5.3 Janitorial and Landscaping Services At its sole cost and expense, CONCESSIONAIRE shall keep the Premises clean, and shall provide sufficient janitorial services to maintain a tidy appearance on and about the Premises. CONCESSIONAIRE shall provide landscaping maintenance services such that landscaping on the Premises remains healthy, attractive, and well maintained. 4.5.4 Repair of Damage Except that which may be caused by the actions, activities or negligence of the CITY or its agents, representatives, en-tployees, guests or invitees, in the event any damage or injury shall occur to the Premises of any kind or nature whatsoever, CONCESSIONAIRE shall promptly cause said damage or injury to be fully repaired at CONCESSIONAIRE'S own cost and expense. In the event CONCESSIONAIRE fails to accomplish such repairs within fifteen (15) days of receipt of written notice by the CITY, then in that event CITY may, but is not required to, enter the Premises and accomplish such repairs and bill CONCESSIONAIRE who will pay the bill xvithin fifteen (15) days after delivery ora statement tbr such expense. Any such damage or injury to the Premises caused by the actions, activities or negligence of the CITY or its agents, representatives, employees, guests or invitees shall be promptly repaired bv the CITY at its cost and expense. CONCESSION AGREEMENT Page DRAFT 6/11/2002 4. 5. 6 Improvements The CONCESSIONAIRE shall be solely responsible for providing adequate funding for any alterations or improvements as provided in this Agreement and such alterations or improvements shall be made without cost to the CITY. 4.5. 7Alterations of Improvements after Construction After such time as the Improvements have been completed and accepted as defined above, the CONCESSIONAIRE shall not make any mater/al alteration to the Premises including any changes to the landscaping, without the CITY'S prior written consent, which consent will not be unreasonably withheld. 4.6 Signs CONCESSIONAIRE may place and maintain signs upon the Premises in accordance with the sign ordinance of the CITY. 4.7 Utilities 4. 7.1 Utility Services and Expense The CONCESSIONAIRE will pay for all water, gas, garbage, sewage, electricity, telephone, and other utilities and communications services used by CONCESSIONAIRE on the Premises, whether or not such services are billed directly to CONCESSIONAIRE. CONCESSIONAIRE will also procure, or cause to be procured, without cost to the CITY, any and all necessary permits, licenses, or other authorizations required for the lawful and proper installation and maintenance upon the Premises of utility appurtenances and appliances for use in supplying such utilities and services to and upon the Premises. The CITY, upon request of CONCESSIONAIRE, and at the sole expense and liability of the CONCESSIONAIRE, will join with CONCESSIONAIRE in any application required for obtaining or continuing any such services, provided that such services do not violate any other applicable provision of this Agreement. The CITY shall not be held liable for any injury, loss, or damage caused by or resulting from any interruption or failure of utility services due to any cause whatsoever, except the CITY's sole negligence. CONCESSIONAIRE shall not be entitled to any offset, reduction, or return of consideration as a result of any interruption or failure of services. 4. 7.2 Trash & Garbage The CONCESSIONAIRE shall place all trash and garbage into such areas and containers as are designed and intended to accommodate the trash and garbage generated within or on the Premises. The CONCESSIONAIRE shall not allow trash and/or garbage to accumulate such that a nuisance or health hazard results. 4.8 Parking The CONCESSIONAIRE shall develop parking on the real property described in Exhibit A providing a minimum of 155 vehicle parking spaces tbr CONCESSIONAI]LE's non-exclusive use in connection with the Premises, as identified more particularly described in Exhibit B. CITY mav use this parking lot for activities of the CITY or its CONCESSION AGREEMENT Page 9 DRAFT 6/11/2002 assigns at Eastpark in a manner not inconsistent or interfering with CONCESSIONAIRE's use of the parking lot. 4.9 Hazardous Substances 4. 9.1 Definition As used herein, the term "Hazardous Substance" means any hazardous, toxic, or dangerous substance, waste, or material, which is or becomes regulated under any federal, state, or local statute, ordinance, rule, regulation, or other law now or hereafter in affect pertaining to environmental protection, contamination, or cleanup. 4. 9.2 Information CONCESSIONAIRE shall keep upon the Premises, in a location accessible to CITY, on request during normal business hours, copies of all reports regarding hazardous or toxic materials in the Premises that CONCESSIONAIRE has provided to any governmental agency in the previous quarter. CONCESSIONAIRE shall, upon request and at CONCESSIONAIRE'S expense, provide CITY with a copy of any such report as to which CITY request a copy. In the event of any accident, spill, or other incident involving hazardous or toxic matter that CONCESSIONAIRE is required to report to any governmental agency, CONCESSIONAIRE shall immediately report the same to the CITY and supply CITY with all information and reports with respect to the same, together with CONCESSIONAIRE'S clean-up or remediation plan and schedule. If such clean-up or remediation plan is not acceptable to CITY in CITY'S sole discretion, CITY may so notify CONCESSIONAIRE and, upon 48 hours prior written notice (or without notice if so required by an emergency) may enter on the Premises to conduct the cleanup or remediation and charge CONCESSIONAIRE the costs thereof. All information described herein shall be provided to CITY regardless of any claim by CONCESSIONAIRE that it is confidential or privileged, provided that the CITY shall not publish or disclose the information to any third party except as pursuant to Chapter 42.17 RCW. 4.9.3 Indemnification CONCESSIONAIRE agrees to hold harmless, protect, indemnify, and defend CITY from and against any damage, loss, claim, or liability, INCLUDING Attorney's fees and costs, resulting from CONCESSIONAIRE'S use, disposal, transportation, generation, and/or sale of any Hazardous Substances. The CITY agrees to hold harmless, protect, indemnify, and defend CONCESSIONAIRE from and against any damage, loss. claim, or liability, including attorney's fees and costs, resulting from (a) Hazardous Substances existing on the Premises as of the EFFECTIVE DATE of this Agreement; or (b) Hazardous Substances thereafter used, disposed of, or generated on the Premises by the CITY. These indemnities will survive the termination of this Agreement, whether by expiration of the Term or otherwise. 4.10 Risk of Loss Ail personal property of any kind or description whatsoever in the Premises shall be at the CONCESSIONAIRE's sole risk, and CITY shall not be liable For any damage CONCESSION AGREEMENT Page 10 DRAFT 6/11/2002 done to, or loss of, such personal property. However, CONCESSIONAIRE is not responsible for losses or claims of damaged or stolen property under the care and control of the CITY during the CITY'S use periods. ARTICLE 5. DESIGN & CONSTRUCTION OF PREMISES 5.1 Design The CONCESSIONAIRE shall retain a licensed architect or licensed professional engineer, registered in the State of Washington, who shall design the indoor ice arena facility and exterior landscaping, which shall visually blend with the setting. The CITY shall have the right to approve the final design of the Improvements and shall have a continuing fight to approve the exterior color of any structure on the Premises, which approval shall not be unreasonably withheld. CONCESSIONAIRE shall comply with the Americans with Disabilities Act of 1990 (ADA) in the design, construction, and operation of the Premises. 5.2 Building & Site Plans The CONCESSIONAIRE shall retain a licensed architect or licensed professional engineer, registered in the State of Washington, to prepare building and site plans for the Premises, which shall reference the structure, utilities generally, and landscape plan. The CITY shall have the right to approve the final building and site plans. 5.3 Construction/Site Work/Fencing The CONCESSIONAIRE shall be solely responsible for all development and construction of the Premises and hold the CITY harmless from any and all claims arising out of the development and construction of the Premises pursuant to Article 8.6 herein, except as may be caused by the sole acts or negligence of the CITY or its agents, representatives or employees. CONCESSIONAIRE shall be responsible for the site work, all required permits and grading. CONCESSIONAIRE shall properly barricade the work area and install signage directing unauthorized person not to enter onto the building site during any phase of development or construction. Unless otherwise agreed fencing shall be placed around the work area. In addition, the building site shall be kept in a clean and organized condition during development periods. CONCESSIONAIRE shall be responsible for site security, traffic and pedestrian warnings at the site during the development and construction phases. 5.4 Construction Deadlines CONCESSIONAIRE shall be required to commence development and construction of the Premises within nine months of the EFFECTIVE DATE of this Agreement. Commencement of development and construction of the Premises is defined as that date upon which there is physical movement or gading of the soil in preparation for construction of any structure on the Premises. CONCESSIONAIRE shall be required to complete the development and construction of the Premises xvithin eighteen (18) months of the EFFECTIVE DATE of this Agreement. Completion of the development and construction of the Premises is defined as that date upon which all final occupancy permits are obtained by the CONCESSIONAIRE for all structures on the Premises. CONCESSION AGREEMENT Page 11 DRAFT 6/11/2002 5.5 Failure to Meet Construction Deadlines/Time of Essence Except as provided in Article 8.15 herein, it is mutually understood and agreed that failure by the CONCESSIONAIRE to meet the development and construction deadlines shall constitute a material breach of this Agreement by the CONCESSIONAIRE and the CITY, at its option, can terminate this Agreement for cause pursuant to Article 7, subject, however, to the provisions of Article 6 below. Time is of the essence with this Agreement. 5.6 Stormwater Drainage, Sewer, & Water Lines The CONCESSIONAIRE will be responsible for relocating storm drains, sewers, and water lines to the Premises, as required to complete development and construction of the Improvements. The CITY shall provide CONCESSIONAIRE with all pertinent information concerning the location of such existing lines. 5.7 Development and Construction Fees & Expenses The CONCESSIONAIRE shall be responsible for obtaining and paying for necessary permits, fees, and expenses associated with the development and construction of the Improvements. In addition, CONCESSIONAIRE shall be responsible for any additional costs for inspections billed to the CITY by any government agency, including but not limited to the City ofBremerton, Kitsap County, or the State of Washington. 5.8 CONCESSIONAIRE's Development Project The development and construction of Improvements on the Premises is CONCESSIONAIRE's development project and is not a CITY public works project. CONCESSIONAIRE is the developer and the CITY is not an owner, partner, joint venturer, nor maintains any other business relationship with the CONCESSIONAIRE regarding the indoor ice arena facility other than as grantor of a concession and user of the Premises. The CITY is not involved with, nor has any responsibilities for, the bidding, contracting or operations of the Premises and will occupy no space in the Premises. The project signage and all literature, advertising by either the CITY or CONCESSIONAIRE shall not indicate in any manner that this is a CITY project, contract, or other misleading statement indicating that this project is a CITY public work project directly or indirectly. 5.9 No Liens Except liens and encumbrances of any lender pursuant to Article 6 herein, it is mutually understood and agreed that the CONCESSIONAIRE shall have no authority, express or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind, the interest of the CITY in the Premises or to charge the rentals payable hereunder for any claim in favor of any person dealing with CONCESSIONAIRE, including those who may furnish materials or perform labor for any construction or repairs, and each such claim shall affect and each such lien shall attach to, if at all, only the right and interest granted to CONCESSIONAIRE by this Agreement. If any such liens are filed, CITY may, without waiving its rights and remedies for breach, and xvithout releasing CONCESSIONAIRE from its obligations hereunder, require CONCESSIONAIRE to post security in form and amount reasonably CONCESSION AGREEMENT Page I2 DRAFT 6/11/2002 Satisfactory to CITY or cause such liens to be released by any means CITY deems proper, including payment in satisfaction of the claim giving rise to the lien. CONCESSIONAIRE shall pay to CITY upon demand any sum paid by CITY to remove the liens. Further, CONCESSIONAIRE agrees that it will save and hold the CITY harmless from any and all loss, cost, or expenses based on or arising out of the asserted claims or liens, except those of the lender pursuant to the provisions of this Agreement, against this Agreement or against the right, title, and interest of the CITY in the Premises or under the terms of this Agreement, including reasonable attorney's fees and costs incurred by CITY in removing such liens, and in enforcing this paragraph. Additionally, it is mutually understood and agreed that this paragraph is intended to be a continuing provision applicable to future repairs and improvements after the initial construction phase. ARTICLE 6. FINANCING & SECURITY INTERESTS 6.1 Financing - No CITY Obligation CONCESSIONAIRE shall be solely responsible for all financing requirements for all construction, maintenance, repairs, or subsequent improvements to the Premises. The CITY shall be under no obligation directly or indirectly to pay for any labor, material, or improvement associated with the facility except as provided herein or mutually agreed upon. The CONCESSIONAIRE shall, in applying and obtaining financing, inform any lender that the CITY has no financial obligations associated with the construction, maintenance, repairs or subsequent improvements to the Premises. 6.2 Security Interest in Premises & Agreement/Consent The CITY consents to the grant, transfer, pledge and assigranent of any and all right, title, claim, interest of CONCESSIONAIRE in and to this Agreement and in the Premises, including improvements and personal property on the Premises ("Collateral") to lender for financing purposes, including the re-financing of any loans and leasing of equipment. The CITY shall recognize lender's first priority security interest in the Collateral and the CITY hereby subordinates any and all interest of the CITY in said Collateral to lender. CONCESSIONAIRE acknowledges that the CITY will not grant any security interest to any lender in CITY real property nor will the CITY allow any encumbrance of any kind or nature whatsoever upon, or in any manner on its title to CITY real property. In the event of default by CONCESSIONAIRE to lender, in addition to all its rights and remedies available at law and equity, lender may enforce and/or foreclose its security interest/interests in the Collateral. CITY agrees that in connection with any such default, and all without further consent of CITY, lender may: a. Acquire CONCESSIONAIRE'S interest in the Collateral either by a deed in lieu of foreclosure or actual foreclosure; b. Rent and/or grant a ground and use concession of the Premises subject to this Agreement pending foreclosure of the Collateral by lender; c. Assign, sell and/or transfer the Collateral in whole or in part to any person or entity; d. Take possession of any or all of the Collateral, obtain right of substitution/'or CONCESSIONAIRE and operate said Collateral; and/or CONCESSION AGREEMENT Page l 3 DRAFT 6/11/2002 e. Appoint a receiver. Lender shall have no interest in improvements located on the Premises at the time of expiration of the term or terms of this Agreement pursuant to Article 2, at which time, all improvements shall become the property of the CITY. 6.3 LENDER's Reliance on Term and Renewal Options The City acknowledges that the CONCESSIONAIRE, in making application for financing, may be required to have an assurance that the terms of this Agreement will extend beyond the term of the financing term. By its signature to this Agreement, the CITY confirms its authority to provide the ten-year Agreement term with four options to extend the ten-year Agreement for a total of fifty years with the renewal options conditioned solely upon the CONCESSIONAIRE maintaining current payments and remaining in full compliance with the terms and conditions of this Agreement. Lender may, but is not obligated to exercise the right to renew and extend the terms of this Agreement as set forth herein. Additionally, the CITY acknowledges that, after any original financing commitments by the CONCESSIONAIRE have been satisfied, these financing provisions shall be applicable to all future advances or financing required by the CONCESSIONAIRE and used solely for the improvements and repairs of the Premises or re-financing such obligations periodically thereafter. 6.4 Surrender of the Collateral No surrender of Collateral or the Premises to lender subject to this Agreement or any other act of CONCESSIONAIRE shall be deemed to terminate this Agreement. CITY will not terminate this Agreement voluntarily by agreement with CONCESSIONAIRE unless lender has been previously notified in writing and has consented to the termination in writing. This Agreement shall not be amended or modified unless lender has been previously notified in writing and has consented to such amendment or modification in writing. 6.5 Notice of Default and Lender's Rights 6. 5.1 Notice of Default If CONCESSIONAIRE defaults under this Agreement or if any event occurs which would give CITY the right to temfinate, modify, amend or shorten the term of this Agreement, CITY shall take no steps to exercise any fight it may have under this Agreement without first giving lender written notice of such default in accordance with Article 6.11 below. A copy of each and every notice of default served or sent by CITY or its agent to or upon CONCESSIONAIRE pursuant to this Agreement shall be sent contemporaneously to lender in accordance with Article 6.11 below. Such notice of default shall specify the event or events of default then outstanding and the time period at the end of which the indicated action would become effective. 6.5.2 Tertnination for :'l/lonetary Default If the notice of default given by CITY to lender relates to a monetary default and CONCESSIONAIRE has not cured such monetary default xvithin 30 days alter lender CONCESSION AGREEMENT Page 14 DRAFT 6/11/2002 ' receives the notice and CONCESSIONAIRE'S failure to cure results in CITY desiring to terminate this Agreement, CITY may terminate this Agreement pursuant to Article 7 if such monetary default is not cured by either CONCESSIONAIRE or lender within forty- five (45) days after lender receives the notice of default. 6.5.3 Termination for Non-Monetary Default If the notice of default given by CITY to lender relates to a non-monetary default and CONCESSIONAIRE has not cured, or diligently pursued curing, such non-monetary default within thirty (30) days after lender receives the notice, CITY may terminate this Agreement pursuant to Article 7 unless: a. Within sixty (60) days after CITY'S notice to lender regarding CONCESSIONAIRE'S failure to cure (or failure to diligently pursue a cure) lender notifies CITY of its intent to realize upon its security interest and commences realization within sixty (60) days thereafter, and diligently pursues realization; and b. Lender pays CITY at time of notification all monies or performances due that may be in default up to the day lender notifies CITY of lender's intent and further pays or performs all consideration that accrues during the period after lender so notifies CITY and completes such other performances that may be required or come due under this Agreement. 6.5.4 Termination due to Bankruptcy CITY shall not terminate this Agreement because of CONCESSIONAIRE'S breach of any terms of this Agreement relating to the solvency of CONCESSIONAIRE or the institution of any bankruptcy, insolvency, receivership or related action by or against CONCESSIONAIRE as long as lender cures any default under this Agreement by CONCESSIONAIRE as provided herein, except that lender shall not be required to cure any defaults relating to solvency of CONCESSIONAIRE. 6.6 Right to Assign Lender shall have the right to assign its interest in the Collateral. Upon the purchaser's, assignee's or transferee's assumption of lenders assigned interest and agreement to perform and be bound by all of the terms of this Agreement, lender shall be relieved from further liability under this Agreement. If a lender finances the purchaser, assignee or transferee, said lender shall be subject to all obligations as set forth in this Agreement. Any successor lender shall be bound by the terms and conditions of this Agreement. 6.7 Disposition of Insurance Should the Collateral suffer any loss which is covered by casualty insurance, and the insurance proceeds are used to restore any improvements made by CONCESSIONAIRE, CITY agrees that CONCESSIONAIRE and lender shall have the right to such proceeds so long as none of CITY'S property, utilities or other services therein are damaged or such damages are repaired. In the event the CITY'S land is substantially damaged and CONCESSIONAIRE'S improvements have been repaired, CONCESSION AGREEMENT Page 15 DRAFT 6/11/2002 CITY shall only participate in the insurance proceeds to the extent necessary to repair and restore CITY'S land and any of CITY'S improvements on or in the ground to the same condition the land was at the commencement of this Agreement, or in the same condition at the time of the casualty. Other than as described herein, CITY shall have no claim to insurance proceeds that are attributable to CONCESSIONAIRE's interest in the Collateral. 6.8 Right to Participate in Litigation Lender shall have the right to participate in any litigation, arbitration or dispute directly affecting the Collateral or interest of CONCESSIONAIRE or lender therein, including, without limitation, any suit, action, arbitration proceeding, condemnation proceeding or insurance claim. CITY, upon instituting or receiving notice of any such litigation, arbitration or dispute will promptly notify lender of the same. 6.9 Incorporation of Lender's Protection Provisions Lender shall be a beneficiary of all rights of CONCESSIONAIRE herein including but not limited to the warranty, indemnity, hold harmless, choice of law and venue, costs and attorney's fees as provided herein. 6.10 Right to Remove Collateral In the event lender exercises its rights under its Collateral and realizes upon the Collateral, CITY agrees that lender is entitled to remove the Improvements on the Premises, including but not limited to building facility, furniture, movable trade fixtures and equipment, from the Premises at any reasonable time and that the Collateral shall remain personal property even though the trade fixtures may be affixed to or placed upon the Premises. In the event lender so realizes on its Collateral, CITY waives any right, title, claim, lien or interest in the Collateral. 6.11 Notices All notices, copies of notices, consents or other communications to lender given under this Agreement to lender must be in writing and shall be effective when received. Such communications shall be given in person to an officer of lender, addressed to lender at an address as provided by lender. CONCESSIONAIRE shall keep the CITY informed of the name, address, and telephone number of any current lender or lenders for the purpose of the CITY providing notice to the same under this Agreement. 6.12 Lenders Change in Loan Terms It is understood that current or future lenders may require terms or conditions on loans for future or additional financing needs of CONCESSIONAIRE, which may require changes to the terms or conditions of this Agreement. In such case, the CITY will give reasonable consideration to such changes to this Agreement, and may, at its sole discretion, accept or reject the same. Any modifications to this Agreement are subject to approval of the U.S. Secretary of Interior pursuant to Article 8.21. CONCESSION AGREEMENT Page I6 DRAFT 6/11/2002 ARTICLE 7. TERMINATION 7.1 Failure to Perform 7.1.1 Obligation to Perform Nothing herein shall imply any duty upon CITY to do any work, which under any provision of this concession CONCESSIONAIRE may be required to perform, and the performance thereof by CITY shall not constitute a waiver of CONCESSIONAIRE's default. CITY shall not in any event be liable for inconvenience, annoyance, and disturbance in its activities in Eastpark. 7.1.2 Payments to Other Parties Except as otherwise expressly provided hereunder, all obligations of the CONCESSIONAIRE under this Agreement will be performed by CONCESSIONAIRE at CONCESSIONAIRE's sole cost and expense. If CONCESSIONAIRE fails to pay any sum of money owed to any party other than CITY for which CONCESSIONAIRE is liable hereunder, or if CONCESSIONAIRE fails to perform any other act on its part to be performed hereunder, and such failure continues for ten days after notice thereof by CITY, CITY may, without waiving or releasing CONCESSIONAIRE from its obligations, make any such payment or perform any such other act to be made or performed by CONCESSIONAIRE. CONCESSIONAIRE shall pay CITY, on demand, all sums so paid by CITY and all necessary incidental costs, together with interest thereon at the lesser of 1 ~/2 percent per month or the maximum rate permissible by law, from the date of such payment by CITY, provided, however, CONCESSIONAIRE shall have the right to contest any such obligation, upon such terms and conditions as the CITY may reasonably insist, in order to protect its interests herein. 7.2 Default and Termination. This Agreement and the concession granted herein may be terminated for default as follows: 7.2.1 CITY's Default CITY will not be in default unless CITY fails to perform an obligation within thirty (30) days after notice by CONCESSIONAIRE, which notice must specify the alleged breach; provided that if the nature of CITY's obligation is such that more than thirty (30) days are reasonably required for cure, then CITY will not be in default if CITY commences to cure within thirty (30) days of CONCESSIONAIRE's notice and thereafter diligently pursues completion and completes performance within a reasonable time. 7.2.2 CONCESSIONAIRE's Default Subject to lender's interest(s) herein, as provided in Article 6, the occurrence of any one or more of the ~bllowing events constitutes a default under this Agreement by CONCESSIONAIRE: (1) CONCESSIONAIRE shall be in default of the perfbrmance of any covenants, conditions, or provisions of this Agreement, other than the covenants tbr the payment of consideration required by this Agreement, where such failure continues CONCESSION AGREEMENT Page 17 DRAFT 6/11/2002 for a period of thirty (30) days after written notice is given by CITY provided that if the nature of CONCESSIONAIRE's obligations is such that more than thirty (30) days are reasonably required for cure, CONCESSIONAIRE will not be in default if CONCESSIONAIRE commences to cure within thirty (30) days of CITY's notice and thereafter diligently pursues completion and completes performance within a reasonable time; or (2) CONCESSIONAIRE shall be adjudged a bankrupt, make a general assignment for the benefit of creditors, or take the benefit of any insolvency act, or if a permanent receiver and trustee in bankruptcy shall be appointed for CONCESSIONAIRE's estate and such appointment is not vacated within thirty (30) days; or (3) Premises become vacant or deserted for a period of thirty (30) days; or (4) if this Agreement shall be assigned or the Premises concessio, ned other than in accordance with the terms of this AGREEMENT and such default is not cured within twenty (20) days after written notice to CONCESSIONAIRE; or (5) CONCESSIONAIRE shall fail to make any payment when due, or fail to make any other payment required hereunder when due, when that failure is not cured within thirty (30) days after mailing of written notice thereof by CITY; or (6) CONCESSIONAIRE shall fail to comply with the same concession agreement term or covenant on three occasions during any 10 year term, even if such breach is cured within the applicable cure period. 7.2.3 Default for Other Cause Subject to lender's interest(s) as provided in Article 6, this Agreement may be immediately terminated for other cause by a party if the other party substantially fails to perform its obligations under this Agreement, through no fault of the terminating party, and the non-performing party does not commence correction of the failure of performance within thirty (30) days of the terminating party's sending notice to the non- performing party. 7.2.4 Bankruptcy Subject to lender's interest(s) as provided in Article 6, the Parties agree that if the CONCESSIONAIRE is adjudged bankrupt, either voluntarily or involuntarily, then this AGREEMENT, at the option of the CITY, may be terminated effective on the day and at the time the bankruptcy petition is filed. 7.3 Remedies Are Cumulative Remedies under this Agreement are cumulative; the failure to exercise on any occasion any right shall not operate to forfeit such remedy. 7.4 Destruction of Premises & Use of Insurance Proceeds Unless otherwise mutually agreed by the Parties, in the event the Improvements on the Premises are destroyed or injured by fire, earthquake, or other casualty, then CONCESSIONAIRE shall proceed to rebuild and restore the Improvements, or such part thereof as may be injured as aforesaid. In the event of any loss covered by the insurance policies described and required pursuant to Article 8.5.1 herein, unless this Agreement shall be terminated as provided herein, the proceeds of such insurance policies shall be used by CONCESSIONAIRE first to rebuild and restore the Premises and replace the improvements which may be damaged or destroyed by such casualty. CONCESSION AGREEMENT Page 18 DRAFT 6/11/2002 7.5 Duties upon Termination Upon termination of this agreement, and unless otherwise arranged, CONCESSIONAIRE shall remove from the Eastpark all its personal property, goods, and effects. In the event that the CONCESSIONAIRE fails to perform this duty at termination, the CITY may cause such removal to be made and said personal property, goods, and effects to be stored, the cost and expense to be paid by the CONCESSIONAIRE. It is mutually understood and agreed that the real property constituting the Premises of this Agreement is the real property of the CITY and that all improvements to said real property shall revert to the CITY at the termination of this Agreement, subject to the fights of lender as provided in this Agreement in the event of termination for default. 7.6 Eminent Domain The following rules shall govern the fights and duties of the Parties in the event of interference with the possession of the Premises by CONCESSIONAIRE by right of eminent domain or private purchase in lieu thereof. 7. 6.1 Rights of Termination If the whole of the Premises shall be taken for any public or quasi-public use under any statute or by fight of eminent domain, or by private purchase in lieu thereof, then this Agreement shall automatically terminate as of the date that title shall be taken. If more than twenty-five percent (25%) of the Premises shall be so taken and if the taking renders the remainder thereof unusable for the purposes for which the Premises were concessioned, then CITY and CONCESSIONAIRE shall each have the right to terminate this Agreement on thirty (30) days notice to the other given within ninety (90) days after the date of such taking. Provided, however, that if the CITY is exercising its fights of eminent domain, a fair value shall be placed on this Agreement and the Premises with the compensation thereof awarded solely to CONCESSIONAIRE, or lender pursuant to its security interest, if any. 7. 6.2 Non-Termination If any part of the Premises shall be so taken and this Agreement is not terminated, then, if the CITY is exercising its right to eminent domain, the CITY shall, at its own cost and expense, restore the remaining portion of the Premises to the extent necessary to render it reasonably suitable for the purposes for which it was concessioned. Otherwise, the Parties shall resort and share in the compensation on the basis of their interests and losses. 7. 6.3 Compensation The compensation awarded or paid upon such a total or partial taking of the Premises and/or this Agreement shall belong to and be apportioned between the CITY and CONCESSIONAIRE in accordance with their respective interests as determined by a court of competent jurisdiction. Additionally, CONCESSIONAIRE may prosecute any claim directly against the condemning authority for the costs of removal of the goodwill. stock, trade fixtures, furniture and other personal property belonging to CONCESSIONAIRE. CITY shall have no claim to condemnation proceeds that are CONCESSION AGREEMENT Page 19 DRAFT 6/11/2002 attributable to CONCESSIONAIRE's interest in the Collateral, nor shall CONCESSIONAIRE or lender have any interest in CITY' s condemnation proceeds, if any. ARTICLE 8. GENERAL CONDITIONS 8.1 Relationship of Parties & 1.1 CONCESSIONAIRE Independent Contractor Status The Parties intend that an independent relationship shall be created by this Agreement. Nothing contained herein shall create the relationship of principal and agent or of partnership or of joint venture between the parties hereto, and neither the method of computation of consideration nor any other provision contained herein shall be deemed to create any relationship between the parties hereto other than the relationship of CITY as granting a ground and use concession to the CONCESSIONAIRE. CONCESSIONAIRE has the experience, ability, and resources to develop and operate an indoor ice arena facility and is performing independent functions and responsibilities within its field of expertise. CONCESSIONAIRE and its personnel are independent contractors and not employees of the CITY. No agent, employee, servant, or representative of the CONCESSIONAIRE shall be deemed to be an employee, agent, servant or representative of the CITY. CONCESSIONAIRE and its personnel have no authority to bind the CITY or to control the CITY's employees. As an independent contractor, CONCESSIONAIRE is responsible for its own management. The CITY's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over CONCESSIONAIRE or its personnel. &l.2 No Third Party Rights Created It is mutually understood and agreed that this Agreement is solely for the benefit of the Parties hereto and gives no right to any other party except as provided by Article 6 herein. 8.1.3 No Joint Venture/Partnership It is mutually understood and agreed that no joint venture or partnership formed as a result of this Agreement. 8.1.4 City Adminstration of Agreement This agreement shall be administered, on behalf of the City, by the Director of Parks and Recreation or other person designated by the Mayor. 8.2 Notices Except as provided in Article 6 herein, any notice required or permitted hereunder must be in writing and xvill be effective upon the earlier of personal delivery or three davs after being mailed by certified mail, return receipt requested, addressed to CONCESSIONAIRE or to CITY at the address tbr that party designated herein. Either party may specify a different address Ibr notice purposes by written notice to the other, CONCESSION AGREEMENT Page 20 DRAFT 6/11/2002 except that CITY may in any event use the Premises as CONCESSIONAIRE's address for notice purposes. All notices shall be delivered to the following addresses: CITY Address CONCESSIONAIRE Address City of Bremerton Silverdale Ice Arena, Inc. Attn: Director of Parks and Recreation Attn: Greg Meakin, President 680 Lebo Boulevard P.O. Box 3244 Bremerton, WA 98310 Silverdale, WA 98311 8.3 Reports & Information When requested by the CITY, CONCESSIONAIRE shall furnish periodic reports and documents on matters related to CONCESSIONAIRE's performance under this Agreement. The reports and documents shall be furnished in the time and form requested. CONCESSIONAIRE shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP). 8.4 Permits, Licenses, Taxes, & Fees &4.1 Permits, Licenses, & Other Documents The CONCESSIONAIRE shall possess a current Bremerton Business License and shall obtain all regulatory licenses and permits, including all construction and building permits, necessary to fulfill CONCESSIONAIRE's obligations under this Agreement at CONCESSIONAIRE's sole expense. Each party agrees to execute such additional or other documents as may be required to fully implement the intent of this Agreement. &4.2 Taxes & Fees As an independent contractor, the CONCESSIONAIRE shall be solely responsible for all taxes, fees and charges incurred, including but not limited to license fees, business and occupation taxes, workers' compensation and unemployment benefits, all federal, state, regional, county and local taxes and fees, including leasehold excise tax pursuant Chapter 82.29A RCW, ad valorem taxes, taxes imposed on personal property, all other assessments for improvements or benefits which are assessed on the Premises, income taxes, property taxes, permit fees, operating fees, surcharges of any kind that apply to any and all persons, facilities, property, income, equipment, materials, supplies or activities related to the CONCESSIONAIRE's use of the Premises and obligations under this Agreement. 8.5 Insurance &5.1 Fire, Earthquake, & Casualty Insurance The CONCESSIONAIRE agrees that, at all times during the full term of this Agreement and at its own expense, CONCESSIONAIRE shall, at its sole cost and expense, maintain in full force and effect adequate fire, earthquake, and other casualty coverage covering the Premises and its contents, including all personal property and improvements. Such policy shall include a replacement cost endorsement. CONCESSIONAIRE will shall obtain and file with the CITY's Risk Manager a CONCESSION AGREEMENT Page 21 DRAFT 6/11/2002 Certificate of Insurance evidencing such coverage. All such insurance coverage shall include a ten-day cancellation notice to CONCESSIONAIRE and the CITY. Adequacy of coverage is defined as insurance sufficient to restore the Premises to its pre-casualty condition. 8.5.2 Liability Insurance Prior to the commencement date of this Agreement, CONCESSIONAIRE, at its own expense shall obtain and file with the CITY's Risk Manager a Certificate of Insurance evidencing general comprehensive liability insurance coverage ("CGL") providing coverage of at least $2,000,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage. This Certificate of Insurance shall be subject to approval by the CITY's Risk Manager as to company, terms and coverage, and said approval shall not be unreasonably withheld. The CGL shall name the CITY as an additional insured and must fully protect the CITY from any and all claims and risks and losses in connection with any activities or omissions by the CONCESSIONAIRE by virtue of this Agreement. The CGL policy shall remain in full force and effect at the CONCESSIONAIRE's sole expense for liability for property damage or personal injury that may occur in connection with activities or omissions by the CONCESSIONAIRE, and provide coverage for the full term of this Agreement. CONCESSIONAIRE shall insure that the CITY's Risk Manager is given thirty-calendar days prior written notice, by certified mail, of any cancellation, lapse, reduction or modification of such insurance. 8. 5.3 Release and Waiver of Subrogation Any policy of insurance carried by either CITY or CONCESSIONAIRE pursuant to any obligation under this Agreement, shall, to the extent available, contain a waiver of subrogation clause on the part of the insurer. Such waiver shall apply to damages to adjacent property. Notwithstanding any other provision of this Agreement, neither CITY nor CONCESSIONAIRE shall be liable to the other party or to any insurance company (by subrogation or otherwise) insuring the other party for any loss or damage to any building, structure or tangible personal property of the other occurring in or about the Premises or Eastpark, even though such loss or damage might have been occasioned by the negligence of such party, its agents or employees, if such loss or damage is covered by insurance issued by an insurance carrier authorized or licensed by the Insurance Commissioner of the State of Washington to issue lines of insurance, benefiting the party suffering such loss or damage or was required under the terms of this Agreement to be covered by insurance by the party covering the loss. 8.6 Hold Harmless, Indemnification, & Industrial Insurance & 6.1 Hold Harmless & Indemnification Each party hereto agrees to be responsible and assumes liability for its own wrongful or negligent acts or omissions, or those of its officers, agents, or employees to the fullest extent required by law. Each party agrees to save, indemnify, defend, or hold the other party harmless against all liability, loss, damages, and expenses, including costs and attorney's fees, resulting from actions, claims and lawsuits arising or alleged to have arisen, in whole or in part, out of or in consequence of the acts or failures to act of the CONCESSION AGREEMENT Page 22 DRAFT 6/11/2002 other party, its employees, its subcontractors, its agents, or its assigns, which arise in any way out of the performance of this Agreement. In the case of negligence of both the CITY and the CONCESSIONAIRE, any damages allowed shall be levied in proportion to the percentage of negligence attributable to each party, and each party shall have the right to seek contribution from the other party in proportion to the percentage of negligence attributable to the other party. & 6.2 Industrial Insurance The Parties have specifically negotiated CONCESSIONAIRE's waiver of its immunity under Title 51 RCW, which is hereby waived for purposes of CONCESSIONAIRE's indemnification and hold harmless of the CITY, including the duty to defend. This provision shall be inapplicable to the extent such action, claim, or lawsuit is judicially found to arise solely from the acts or failures to act of the CITY. 8.7 Successors & Assigns The CITY and CONCESSIONAIRE each agree to be bound to the other party in respect to all covenants, agreements, and obligations contained in this contract. Except as provided in Article 6 herein, neither party shall assign the contract in part or as a whole, without the written consent of the other. Except as provided in Article 6 herein, the CONCESSIONAIRE shall not subcontract any of the Premises, services, facilities, or equipment, or delegate any of its duties under this Agreement without the prior written approval of the CITY. The CITY acknowledges that the CONCESSIONAIRE shall be authorized to sub-concession areas within the Premises to food and beverage purveyors, equipment sales, and similar supporting concessions as set forth in Article 4.1.3. When requested, approval by the CITY of a subcontract or assignment shall not be unreasonably withheld. In the event of an assignment, subcontracting, or delegation of duties, the CONCESSIONAIRE shall remain responsible for the full and faithful performance of this Agreement and the assignee, subcontractor, or other obligor shall also become responsible to the CITY for the satisfactory performance of the services, facilities, or equipment assumed. The CITY may condition approval upon the delivery by the assignee, subcontractor, or other obligor of its covenant to the CITY to fully and faithfully complete the requirements or responsibility undertaken under this Agreement. Notwithstanding the foregoing, provided CONCESSIONAIRE is not in default, the CONCESSIONAIRE may assign its interest in this Agreement without seeking CITY's consent to a parent or subsidiary. Except as otherwise provided herein, all of the covenants, conditions, and provisions of this Agreement are binding upon and inure to the benefit of the Parties and their respective heirs, personal representatives, successors, and assigns. 8.8 Compliance with Laws The CONCESSIONAIRE, its officers, employees, and agents shall comply with applicable federal, state, county, and local laws, statutes, rules, regulations, and ordinances, in performing its obligations under this Agreement. Such compliance shall include abiding by all applicable t'ederal, state and local policies to ensure equal employrnent opportunity based on ability and fitness to all persons regardless of race. creed, color, national origin, religion, sex, physical handicaps or age. The CONCESSION AGREEMENT Page 23 DRAFT 6/11/2002 CONCESSIONAIRE shall comply with applicable laws pertaining to employment practices and employee treatment. Conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety and Health Act of 1973 (WISHA), and standards and regulations issued under these Acts must be complied with. The CONCESSIONAIRE agrees to indemnify and hold harmless the City from all damages assessed for the CONCESSIONAIRE's failure to comply with the Acts and Standards issued thereunder. The CONCESSIONAIRE is also responsible for meeting all pertinent local, state and federal health and environmental regulations and standards applying to any operation in the performance of this Agreement. 8.9 Nondiscrimination Parties shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, or disability, except for employment actions based on bona fide occupational qualification. 8.10 Choice of Law & Venue This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. 8.11 Costs & Attorneys' Fees In any action brought to enforce any provision of this Agreement, including actions to recover sums due or for the breach of any covenant or condition of this Agreement, or for the restitution of the Premises to the CITY or eviction of the CONCESSIONAIRE during the term or after expiration thereof, the substantially prevailing party shall be entitled to recover from the other party all reasonable costs and reasonable attorney's fees incurred, including the fees of accountants, appraisers, and other professionals, at trial or on appeal, and without resort to suit. 8.12 Modification This Agreement may only be modified by written instrument signed by both Parties. The Director of Parks and Recreation has the authority to interpret and make minor modifications to this agreement, relative to the use or operation of the Premises, consistent with its purpose and intent. Any major modifications or modifications having a financial impact on the City shall require City Council approval. All modifications to this Agreement are subject to approval of the U.S. Secretary of Interior pursuant to Article 8.21. 8.13 Change in Law/Renegotiation The Parties agree that changes in federal, state or local laws or regulations that materially modify the terms and conditions of the Agreement and result in a detrimental change in circumstances or a material hardship for either party in performing this Agreement may be the subject o f a request by a requesting party to renegotiate this Agreement or negotiate Agreement amendments and the responding party agrees to renegotiate fairly ~vith the requesting party. CONCESSION AGREEMENT Page 24 DRAFT 6/11/2002 8.14 Force Majeure Provided that all other requirements of this Agreement are met, any party shall not be deemed to be in default and shall not be liable for failure to perform under this Agreement if that party's performance is prevented or delayed by acts of God including landslides, lightning, forest fires, storms, floods, freezing and earthquakes, civil disturbances, acts of the public enemy, wars, blockades, public riots, breakage, explosions, accident to machinery, equipment or materials, unavailability of required materials, governmental restraint or other causes, whether of the kind enumerated or otherwise, which are not reasonably within the control of that obligated party ("Force Majeure"). If as a result of a Force Majeure event, an obligated party is unable wholly or partially to meet its obligations under this Agreement, it shall give the other party promptly written notice of the Force Majeure event, describing it in reasonable detail. The obligated party's obligations under this Agreement shall be suspended, but only with respect to the particular component of obligations affected by the Force Majeure and only for the period during which the Force Majeure exists. 8.15 Waiver Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision. No waiver of any right or obligation of either party hereto shall be effective unless in writing, specifying such waiver, executed by the party against whom such waiver is sought to be enforced. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. 8.16 Illegal Provisions - Severability Should any part of this Agreement be found void, illegal, or unenforceable, the balance of the Agreement shall remain in full force and effect. 8.17 Article Headings, Gender, & Number Article paragraph headings are not to be construed as binding provisions of this concession; they are for the convenience of the Parties only. The masculine, feminine, singular and plural of any word or words shall be deemed to include and refer to the gender and number appropriate in the context. 8.18 Entire Agreement This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. 8.19 Counterparts This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 8.20 Recording Upon the execution of this Agreement the CITY will cause this Agreement to be recorded with the land use records of Kitsap County, Washington. CONCESSION ,AGREEMENT Page 25 DRAFT 6/11/2002 8.21 Approval of Agreement This Agreement is subject to the approval of the U.S. Secretary of the Interior pursuant to the Quitclaim Deed transferring title to the CITY to the real property upon which this concession is granted. IN WITNESS WHEREOF, this Agreement has been entered into between the City of Bremerton and Silverdale Ice Arena, Inc. as of the __ day of ,2002. Silverdale Ice Arena, Inc. a Washington Corporation By: Greg Meakin, President CITY OF BREMERTON a Washington municipal corporation By: Cary Bozeman, Mayor APPROVED AS TO FORM: Roger Lubovich, City Attorney ATTEST: Kathleen McCluskey, City Clerk LIST OF EXHIBITS Exhibit A - Legal Description of Premises Exhibit B - Preliminary Building and Site Plans Exhibit C - Appraisal and Compensation Information CONCESSION AGREEMENT Page 26 DRAFT 6/11/2002 STATE OF WASHINGTON ) ) SS. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that Cary Bozeman is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Mayor of the CITY OF BREMERTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Given under my hand and official seal this __ day of ,2002. Type/Print Name Notary Public in and for the State of Washington residing at My Commission expires STATE OF WASHINGTON ) COUNTY OF KITSAP ) On this __ day of ., 2002, before me personally appeared ., to me known to be the of SILVERDALE ICE ARENA, INC. a Washington corporation,, that executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute and in fact executed said instrument on behalf of the corporation. Given under my hand and official seal this __ day of ,2002. Type/Print Name Notary Public in and for the State of Washington residing at My Commission expires CONCESSION AGREEMENT Page 27 DRAFT 6/11/2002 EXHIBIT A Legal Description of Premises A portion of the Southeast quarter of the Southwest quarter, Section 12, Township 24 North, Range 1 East, Williamette Meridian, which is more particularly described as follows: Beginning at the center of said Section 12, from which the south quarter comer of said Section 12 bears S 2°01'25" W 2592.51; thence along the north-south centerline of said Section 12, S 2°01'25'' W 2181.81 feet; thence leaving said centerline, N 87°58'35" W 110 feet to the True Point of Beginning and the top edge of a ravine; thence continuing on a line being parallel and 10 feet south of the existing edge of asphalt for the YMCA parking lot, N 87°58'35'' W 140 feet more or less to the back of east sidewalk for Homer Jones Drive; thence along said back of east sidewalk southerly 160 feet; thence leaving said back of east sidewalk, N 65° W 220 feet; thence S 25° W 65 feet; thence S 65° E 237 feet to the said back of east sidewalk; thence continuing southerly along said back of east sidewalk to an intersection with said back of east sidewalk and a line parallel to said edge of asphalt and 395 feet south; thence S 45° E 30 feet; thence S 70° E 320 feet more or less to the said top edge of a ravine; thence northerly along said top edge to the true point of beginning. Except for any portion of Homer Jones Drive. Consisting of approximately 2.68 acres. CONCESSION AGREEMENT Exhibit A /39 DRAFT 6/11/2002 EXHIBIT C Appraisal and Compensation Information Background: The City of Bremerton commissioned Richards and Associates, Inc. to conduct a complete appraisal of a selected building site located within the boundaries of Eastpark in May 2002. The purpose of this appraisal was to estimate the market value in order to establish a concession rate value of a site to be acquired by concession agreement from the City for an indoor ice skating facility to be developed, owned, and operated by Silverdale Ice Arena, Inc. Richards and Associates submitted the appraisal information in a summary report format on 1 June 2002. Values: The Richards appraisal estimated the fair concession value of the site to be $23,112 per year for 116,725 square feet, which equals $.198 per square foot per year. A comparative market analysis of seven existing indoor ice skating facilities located in western Washington in February 2002 established the fair rental or use value for indoor ice skating facilities to be $220 per hour. Calculations: The City of Bremerton has agreed to provide Silverdale Ice Arena, Inc with 116,725 square feet of property at Eastpark to construct and operate an indoor ice skating facility with associated parking. The parties have agreed that the "as-is" concession rate value of this property is $23,112 per year (116,725 square feet ~ $.198 per year). The parties have further agreed that 8% of the $175,000 ($14,000) paid by the City to defray the cost of moving the facility to this location, will be provided annually in the form of additional ice time. Conclusion: The City of Bremerton and Silverdale Ice Arena, Inc. have agreed that, upon issuance of an occupancy pernxit, fair compensation for the Eastpark property required by Silverdale Ice Arena, Inc. is $37,112 per year; and that fair rental or use value for the Bremerton Ice Arena indoor ice skating facility is $220 per hour; and that compensation provided by Silverdale Ice Arena, Inc. to the City of Bremerton for the Eastpark property is equivalent to 169 hours of indoor ice skating facility usage per year for the term of the Concession Agreement. CONCESSION .AGREEMENT Exhibit Ki.tsap Family · "yMCA "The family everyone Gan I~e a part of" April 29, 2002' Mayor Car~ Bozeman BremerWn Cit7 Council 4e ,237 8~t B~meaon, WA 98337 Dc~ Mayor Boz~ & Co.oil: ~c ~CA Bo~d, Vol~te~s ~d.Staff ~c ve~ exci~ a~ut th~. no-ssibili~ ~ew ho~mg ~ia~ me s~c site, we'll have a one-stop complex to ~w ~oPle ~om ~i over ~e region to Breme~on. O~ ~CA Fi~ce co~i~ee ~d Building co~ee recently mmpleted a fiVe-ye~ m~ten~ce ~d renovation PI~. ~e, plm c~Is for sPen~g over $~0,000 a ye~ to ~n~ ~e. ~CA as a first 'cI~s faciliW. We co~iued to o~ ~e'~ Breme~on. Wi~ a q~liW ~CA facili~, sp~g CiW pool md new ice ~e~ we ~y believe Breme~on ~1 a~act ~e people we need to bd~ten ~e ~e for ~ of ~. Glen ~d~ey Executive Dk~tor Agenoy Proudly serving the otvillan ana military communt~ as an o~tlng unit of the A~ Sewices YMCA of the U.~A. KIT~ F~ILY Y.M.C.~ · ~0 ~GNUSON WAY · BREMERTON, WA 9~10 · (~) 3~-3741 United States Department of the Interior NATIONAL PARK SERVICE Pacific Great Basin Support Office ! 111 Jackson Street, Suite 700 iN m,~.¥ a~FE~ ~o: Oakland, California 9460%4807 L3217(PGSO/PP) May 14, 2002 Mr. James Spencer Bremerton Parks and Recreation 680 Lebo Boulevard Bremerton, WA 98310 Subject: ~ro. posed Ice Rink - East Park (WA 666C2) Dear MrS: The National Park Service (NPS) is in receipt of your letter dated May 2, 2002 requesting an amendment to the program of utilization for the subject property, in accordance with the terms and condition of the deed of conveyance dated April 5, 1971. We understand the proposal would provide for the construction and operation of a state-of-the art, multi-use indoor ice rink on an underutilized portion of the former federal property. The proposed facility would cover 46,041 square feet and be served by an additional 146 additional parking spaces. A private concessionaire would develop and operate the facility under agreement with the city. We find the construction and operation of proposed facility would be consistent with the intent of the deed of conveyance. The terms and conditions of the deed require the National Park Service review and approve the recent request for an amendment to the program of utilization and subsequently an agreement between the city and the concessionaire. As explained during our recent visit, NPS decisions on amendments to the program of utilization are subject to review pursuant to the National Environmental Policy Act (NEPA) and NPS implementing regulations. We understand the city's Community Development Director has determined no zoning actions are required to implement the proposal, however following review of Washington State Environmental Protection Act (SEPA) requirements and consultation with city currently planning staff, we understand the project will require SEPA review as a part of the site plan review/building permit process. In accordance with federal Council on Environmental Quality guidelines, NPS seeks to coordinate and combine reviews under NEPA with this future review by city staff. Accordingly, we are providing a conditional approval of the requested amendment to the program of utilization, subject to future environmental review conducted in accordance with SEPA and NEPA requirements. Following negotiation of an agreement between the city and concessionaire, please forward the agreement to my attention for review and approval. We suggest the city include within the agreement a reference to SEPA/NEPA compliance requirements. Other terms and conditions within the deed should also be referenced within the agreement. National Park Service May 14, 2002 Page 2 of 2 Please arrange to have staff assigned SEPA review responsibilities contact me to provide for a coordinated environmental review. If you or other staff have any questions, please do not hesitation to contact me at 510- 817-1445. sterman oordinator AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Public Hearing FOR AGENDA OF: June 19~ 2002 Resolution # ~.~ ~O , regarding recovery offees for ORIGINATING DEPT.: Fire Dept. removal of vegetation on the listed properties. ORIGINATOR: Al Duke DATE SUBMITTED: 2. CLEARANCES: (Comment on back if 3. EXHIBITS: Fire Chief: ~(/L-~3~_~~ 1. Resolution # ~ ~ ~, 0 City Cler~ ~. ~, _. ~ 2. Prope~ Identification List CiW AtW:~ L~: 3. Photos E~ORSE~ O~D BY CO~C~ P~S~E~ FOR S~TAL: ~ <"' COUNCILP~SIDENT (~~ d~~~ MAYOR ~ .......... ~,,~ ~:<~ 4. SUMMARY STATEMENT AND ~QU~ENT FOR COUNCIL ACTION: Ordinance g4~4 declares that it is unla~ul and a n~sance to allow, continue, or ma~tain gra~ and weeds exceeding ~elve (12) ~ches in he~ht, shrubs, br~h, vines or tre~ which constitute a fire hazard or provide a harborage for rats, r~ents or ho~c~l ~sts, or no,om and po~ono~ plan~. The listed properties are currently in ~olafion of the ordinance and p~uant to ~fion 9.14 of the Breme~on M~icipal C~e. The l~al r~remen~ for notice were met. Co~cil is asked to approve the removal of the n~sance v~emfion on the prope~ and collection of the cm~ incurred by pe~onal jud~ent against the o~er and a lien aga~st the pro~. ~COMMENDATION: I move that Council pa~ Resolution g ~ ~0 , ordering that the nuisance vegetation on the prope~ies identified by the attached i~ting be removed by the CiW with fees incurred collect~ as reasonable abatement costs, which shall become a pe~onal judgment against the owner and a lien against the prope~. ~ ~ 9. ~SPONSIBLE OFFICIAL: A! Duke ENFORCEMENT OFFICIAL: Al Duke EXPIATION DATE: N/A ~VIEW DATE: N/A 10. NOTICE OF ACTION PULLED TABLED APPRO~D DISAPPROVED ~ AMEN~~ COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO.: Iq/ 2. CLEARANCE COMMENTS: 5. IMPACT OF NON-PASSAGE: Ordinance #4584 would not be enforced and nuisance vegetation would continue to thrive in the City of Bremerton. 6. ,IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: The City's revolving abatement fund would suffer the deficit of not collecting these funds. 7. RESEARCH SOURCES: N/A RESOLUTION A RESOLUTION of the City Council of the City of Bremerton, Washington, approving nuisance vegetation abatement on the listed properties and determining means of collection of costs incurred for its removal. WHEREAS, the City of Bremerton passed ordinance #4584 in February of 1997, which declares certain vegetation a public nuisance, a fire hazard and a menace to public health, safety and welfare and requiring its abatement; and WHEREAS, Section 9.14 of the Bremerton Municipal Code allows the City to remove nuisance vegetation and recoup the costs by personal judgment against the property owner and as a lien against the property; and WHEREAS, the City Council is charged with determ/ning whether the vegetation is a nuisance and whether it shall be removed and has considered the report filed by the Building Official and any protests or objections filed; now therefore THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. That the vegetation shown to exist on the attached listed properties is a nuisance. SECTION 2. That the City of Bremerton will exercise its right to remove said nuisance vegetation and recapture abatement fees by pursuing a personal judgment against the property owner and filing a lien against the property. SECTION& Severabili~. If any one or more sections, subsections or sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Resolution and the same shall remain in full force and effect. SECTION 4. Effective Date. This Resolution shall take effect and be in force immediately upon its passage. PASSED, by the City Council of the City of Bremerton this day of , 20 CAROL ARENDS, Council President APPROVED AS TO FORM: ATTEST: ROGER A. LUBOVICH, City Attorney KATHLEEN MCCLUSKEY, City Clerk WEED ABATEMENT LISTING JUNE 19, 2002 ADDRESS OWNER e View Vera Galt,/T~stee 5678 I, Jkffiee Rd. NE Brei~rferton, WA 98311 2. 927 Highland Linda Lobdell Tissell 1215 S. 129th St. Seattle, WA 98168 3. 1500 Blk Lower Marine Drive Ace Paving P.O. Box 4100 Bremerton, WA 98312-0100 4. 1347 Montgomery Avenue Community Resource Center 1032 - 5th Street #D Bremerton, WA 98337 5. 622 Washington Avenue Steven Gould 4532 - 55th Avenue NE Seattle, WA 98105 6. 306 E. 28th St. Karen L. Torgerson 306 E. 28th Street Bremerton, WA 98310