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HomeMy WebLinkAbout06/26/02 AGENDA CITY COUNCIL MEETING AGENDA F LE JUNE 26, 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 - June 12, 2002 (~#AB02-120) B. Minutes of Meeting - June 19, 2002 (#AB02-121) C. Pre-Purchase of a 400kW Generator for Pump Station WB-3 off of the Washington State Bid List (#AB02-122) 4. CLAIMS/CHECK REGISTERS 5. COUNCIL MEMBER REPORTS 6. MAYOR'S REPORT 7. PUBLIC RECOGNITION - Comments limited to 3-minutes 8. NEW BUSINESS A. Preliminary Plat PL01-0056 "Crown Hill Park"; Applicant: Dale Oien (#AB02-123) B. Rezone & Preliminary Plat PL01-0057 "Garland Place"; Applicant: Eric Holm (#AB02-124) C. Preliminary Plat PL01-0037 "Tricom"; Applicant: Louis Menter (#AB02-125) 9. PUBLIC HEARINGS - RESOLUTIONS & ORDINANCES A. Second of Two Public Hearings on the Concession Agreement between the City of Bremerton and Silverdale Ice Arena, Inc. (#AB02-118)%'¢ ~¢-.~%~' ~?r~-8¢,~.~.c. ~ .~ B. Resolution No. 2861, regarding Recovery of Fees for the Abatement of Garbage and Debris on the Property located at 636 Pleasant Avenue (#AB02-126) C. Resolution No. 2862, approving Merger between AT&T BROADBAND CORPORATION and COMCAST CORPORATION (#AB02-127) D. Ordinance (First Reading) amending Title 2 of the Bremerton Municipal Code relating to Departments and Divisions of the City Government (#AB02-128) E. Ordinance (First Reading) amending Title 2 of the Bremerton Municipal Code by adding a new Chapter 2.07 creating the Economic Development Department (#AB02-129) 10. ADJOURNMENT OF MEETING E-mail: citycouncil@ci.bremerton.wa.us · Web: www. ci.bremerton.wa.us CITY COUNCIL MEETING JUNE 26, 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 o Reminder: The next Council Meeting will be on Wednesday, July 10m A Monthly Study Session will be on Wednesday, July 3'd Department of Community Development http:lhvww, cl.bremerton.wa.us MEMORANDUM TO: City Council FROM: Jim Svensson, Development Managerial' Laura Freed, Current Planner I/ SUBJECT: Hearing Examiner Recommendations Re Preliminary Plats/Rezone Attached are Agenda Bills, Hearing Examiner recommendations, and other supporting information regarding the following applications for preliminary plat and, in the case of the Holm application, rezone approval: PL01-0056 Dale Oien PL01-0057 Eric Holm PL01-0037 . Louis Mentor These matters will be scheduled t~.,~vv,.v; .... ..,~,,"~: ...... ,,,... ,~._...~,'~:~ on June 19th. In order to approve a preliminary plat (or an application for preliminary plat filed in conjunction with a rezone), the City Council must take action as a closed record decision. This is not a public hearing and the decision should be based upon information that is already in the record. It should be noted that Mr. Mentor has indicated that certain conditions recommended by the Examiner are not appropriate to his application for preliminary plat. These conditions pertain to a requirement for a sidewalk and certain Fire Code requirements. We have attached a memorandum from Scott Rappleye of the Fire Depadment which supports this contention. Staff and the applicant will provide additional input (based upon the record) at the meeting on the 19th. If you should have any questions, feel free to contact Jim Svensson (478-7986) regarding the Mentor application or Laura Freed (478-5379) regarding the Oien and Holm applications. CC: Chds Hugo, Director, DCD City Attorney Enclosures: June 26, 2002 -- Bremerton City Council Bremerton Ice Arena My name is Denise Moreno. I serve as Comptroller for Bremerton Ice Arena and am very proud to have been closely involved with this ice rink adventure since the beginning. It's been a roller coaster ride indeed but here we are tonight, with a proposal before the City Council that can start the ball rolling to a better Bremerton. I'm sure you've heard a lot about us - past newspaper reports and what you've learned in recent weeks. Tonite I'd like to provide you with a clearer picture of the scope of support we've received. Since this project was publicly announced in January, 2001, we have received literally thousands of well-wishing calls, letters and e-mails from Kitsap County residents, as well as kudos from surrounding counties, other states, Canada, even Germany and England. Support and endorsements have come from a unique assortment of people and organizations. Here is just a partial listing: The YMCA of course -- and we very much thank Glen Godfrey for his best wishes Senator Betty Sheldon Representative Beverly Woods Senator Bob Oke Oksana Bauil, former Olympic Gold Medalist Seattle Junior Hockey Association The New York City Fire Fighters, who have a fundraising hockey team K JR Sports Radio 950 Bill Torrey, former NHL GM of the New York Islanders and Florida Panthers Kitsap Ice Sports Association Marty McSorley, former NHL player and teammate of Wayne Gretzky The support has been uplifting and has truly helped us get through some very tough times. It seems that all people want now is for us to break ground and get the doors open. The ice industry is a small world - a supportive and enthusiastic communiW unto itself- and indeed the City_ of Bremerton has a golden opportunity to put itself on the map as a nationally recognized HOMEPORT for ice sports. Thanks so much to the City Council to Mayor Bozemon_, to Jim Spencer --. and to the ~ countless City of Bremerton people who have helped ~--~ .... ,....g ,.v~ ..... ~ ' the Bremerton Ice Arena Team look forward to helping make remerton The Place To Be" in Kitsap County! This is a proiect whose time has finally come - and we hope the City Council feels the same way. Thank you. June 26, 2002 - Bremerton City Council Meeting Bremerton lee Arena Good evening. My name is Michael Gould and I am Marketing Director for the Haselwood Auto Group in Bremerton. I am speaking on behalf of Chuck and Joanne Haselwood who - as you know - are financially backing the Bremerton Ice Arena project. They were unable to attend tonight due to a prior engagement. The Haselwoods would like to express their sincere appreciation to Mayor Bozeman and the City of Bremerton for their enthusiasm, diligence and professionalism during this process. Without this effort and cooperation on the part of the city, it's unlikely anyone would be here discussing an ice rink this evening. Also, Greg Meakin and his entire Bremerton Ice Arena team should be commended for their commitment and perseverance - against all odds -- to finally bring ice sports to the community. For decades now, Chuck and Joanne Haselwood have wished only good things for the City of Bremerton -- and funding this wonderful project was yet another way of doing their part. They clearly view this evening as an historic opportunity for the city. Some might say we're only talking about a community ice rink here -- but the Haselwoods see it differently. Joanne and Chuck believe in Bremerton and are thrilled to witness what is happening these days. What they are seeing is a city on the verge of greatness once again - a city pursuing its vision of revitalization - a city ready to do business and get things done. Indeed, great things can get done when the public and private sector work together to improve the quality of life for the community. And this is what the ice rink project is really all about. Years from now, when future generations study the history books, we hope they read about June 26th, 2002 as a moment in time where the City Council of Bremerton truly made a difference. ...A moment that helped launch the city into the vibrancy of the 21st Century - and into a renewed and unparalleled era of civic pride. Thank you. June 26, 2002 (Via Fax) Cary Bozeman, Mayor City of Bremerton 239 Fourth Street Bremerton, WA 98337 KITSAP REGIONAL RE: Support for Economic Development Department ECONOMIC DEVELOPMENT COUNCIL Dear Mayor Bozeman: BOARO OF DlmT~O~ The purpose o1' this letter is to support your proposal io Ibc Brcmcnon City Council to create an Economic Development Department for the City of Linda Niebanck, Chair Br~merton and to realign certain functions. Success with the opportunities for President, McConmck I..and Company re-development and development in the City, Downtown, at East Park and Pete Crane, Vice-Chair Vice President West Park and e]sewhere throughout the community requires the full time Salomon Smith Barney attention of' a strong team of staff professionals, and that is what you have. Zoltan Stigethy. Secretary Executive Director. Kitsap Regional As you know, as the KREDC has promoted Kitsap as a great place for Economic Development Council businesses, we have found that the face of Bremerton has been an inhibition. Butch Dunlap Treasurer Prospective new employers as well as current businessmen and residents perceived that the "front door" to Kitsap desperately needed not only a good coat of paint but shiny new hardware. Now, the City is on the brink of new Tim Arnold construction projects that have been talked about for years. Having the right Immediate Pa~t Chair CEO, Bradley Scott. Inc. organization to make sure these projects "gct out of the ground" is critical. Chris Endresen Commissioner This new emphasis on organizing for community and economic Kitsap County development by you and your staff will allow the KREDC to focus its attention Blain~ ltighfield on its first and foremost task - marketing all of Kitsap as the best place in the (En~ritos) Windermere Real Estate Puget Sound region to expand businesses. Our primary goal continues to new Don McDaniel jobs that bring new money into the community, by growing existing businesses Corporate Relations Manages and locating new ones. Puget Sound Energy Jame~ Rebinson We observe that in other successfully changing communities there is a CEO, Iames lt. Robinson Co, inc. Jori Race collaborative and mutually supportive relationship between the "internal" city President development departments and the "regional" economic development Olympic Property Group, LLC organizations. The former generally deal with local community development Ed Stern projects, while the latter help to improve the region's assets and work to retain Managing Directorllnvestment~ U.S. Bancoq~/Piper Jaffray or recruit primary jobs businesses to ali communities within the region. With Poulsbo City Council this re-organization, you are providing that opportunity, and we look forward to Dwight Sutton working hand-in-hand with you, to see Bremerton and all of Kitsap build a Vaizalmh Wilson strong and healthy economy. Project Manager Pon Blakely Communities On behalf of the KKEDC, Zoltan Szigethy Executive Director C~ 360/377-9499 o~ 1-~77-465-4872 F~: 3~0/4~ Linda Niebanck E-man: ~ace~ Chair W~ Sile: 43~ Ki~ Way, ~ Smmarlon, WA 98312.244~ CC: Bremenon City Council MEMORANDUM TO: Jim Svensson Department of Community Development FROM: Para waS~ulmg, r.~. Public Works SUBJECT: Mentor, 3290 Pine Road, 8 Lot Plat DATE: March 25, 2002 At the conclusion of the February 27, 2002 Louis Mentor met with myself and Luke Korpi to discuss the sidewalk that he had agreed to install at the hearing examiners request. We explained to lvlr. Mentor that sidew~n~ w~__nnt r~Q,,l-?'~ 5;' -~'f- --~'7'_-.nt Standards. He stated that he had agreed to provide sidewalk at the insistence of Ms. Baker and he needed our approval. If Mr. Mentor chose to install sidewalk within his plat and he needs our approval then he must meet current sidewalk standards. This means that the sidewalk would be concrete and would be separated from the driving lane with a curb section. We explained that Public Works did not have any requirements for sidewalk and, that regardless of what he had agreed to, we could not legally require anything of him that we would not require of another 8-lot long plat. AGENDA BILL ' BREMERTON CITY COUNCIL 1. SUBJECT: FORAGENDA OF: JUNE 26, 2002 ORIGINATING DEPT: CITY COUNCIL MINUTES OF MEETING - JUNE 12, 20O2 ORIGINATOR: CAROL ARENDS, PRESIDENT DATE SUBMITTED: JUN£ 19, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: ENDORSEMENT [--] INFORMATION [--] APPROVED FOR SUBMITTAL BY COUN~CIL PRESIDENT: MAYOR: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: 5. RECOMMENDATION: 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION: PULLED [] TABLED [--] APPROVED [--] DISAPPROVED [~ AMENDED [~] DATE: COUNCIL DIRECTIVE: 8. :kGENDA BILL NO.: 9. IMPACT OF NON-PASSAGE: 10. IMPACT ON STAFFING, BUDGETS. FACILITIES, EQUIPMENT OR OTHER RESOURCES: 11. RESEARCH SOURCES: TAPE #1838 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES June t2, 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 12, 2002, at 5:30 P.M., with Council President Carol Arends presiding. Council members present were Mike Short, Will Maupin, Eric Younger, Mike Shepherd, Daren Nygren, Cecil McConnell, and Wayne Olsen. Council Member Ed Rollman was absent. 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 Chaplain Conrad Dodd of Kitsap Lake 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) The Executive Session to "REVIEW PERSONNEL" was cancelled. CONSENT AGENDA A. Shelter Care Plus Application Renewal (#AB02-109) #0025 M/S/C/U (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. #0045 M/S/C/U (Younger/McConnell) On June 12, 2002 the Council approved payment for those vouchers included and further described as follows: Check numbers 271733 through 271741; and 271763 through 271948 in the amount of $429,260.45; and Regular Payroll for the Pay Period ending May 31, 2002 in the amount of $1,113,191.83. COUNCIL MEMBER REPORTS Wayne Olsen reported on the CenCom Policy Board meeting he recently attended, and added a caution for citizens not to call 911 from cell phones because there is currently no way for CenCom to know where the call originated. Cecil McConnell was pleased with the turnout at the District 1 & 2 meeting held last evening, and thanked the Police Department for their part in helping to make the program a success. Daren NYRren announced the next District 3 neighborhood meeting would be held on Saturday, June 22 from 10:00 to 11:00 A.M. at the Manette Senior Center to discuss an "Update on the City" and a briefing on the "Proposed "Ice Arena". He also encouraged those interested in supporting a new Skateboard or Bike Park to call him at the Council office at 478-5280. Lori Smith, on behalf of the Council members, congratulated Council member Ed Rollman and his wife Pranvera after the birth of their new son "Denzel Evan Rollman" last Wednesday, June 5, 2002. Mike Shepherd was glad to be back after a brief trip to Yakima; was pleased at the increased attendance at First Friday Art Walk events; reported that there were several more upcoming events downtown; discussed the formation of a group tentatively called "Kitsap Tree" to help protect TAPE #1838 City Council Reg. Mtg. Minutes June 12, 2002 Page 2 of 4 Kitsap County's Watershed by planting and caring for trees, and encouraged more volunteers; reminded citizens not to use parking stalls designated for boats when parking their cars at Evergreen Park; and lastly, discussed the value of "spreading the good word about Bremerton" while visiting and socializing with other commuters on the Bremerton Ferries. Eric Younger had no report this evening. Will Maupin reported on his attendance at a large number of meetings last week where a variety of topics were discussed including several current initiatives to improve Kitsap County and Bremerton; the Alaskan Way Viaduct Project; actions at the Kitsap County Health Board and Kitsap Transit Board of Commissioners meetings, including a proposal to move the Health Department into the new Government Center; and a proposal to improve broadband internet service to all residents of Kitsap County; and lastly, he reported that he too thoroughly enjoyed the Friday Art Walk event last week. Mike Short reported on his attendance at the Peninsula Regional Transportation Planning Organization meeting to discuss issues related to the Hood Canal Bridge, and informed the public of the current plans to close the bridge for 8-weeks in May & June of 2006. Carol Arends was pleased to be back from a recent vacation in Minneapolis, where she thoroughly enjoyed shopping, shopping, and more shopping! MAYOR'S REPORT Mayor Bozeman established that he and President Arends would be meeting soon to discuss the process to be used in evaluating the new City Attorney, and therefore the Executive Session scheduled for tonight was not necessary. He then read from a 3-page letter he recently received from the three Port of Bremerton Commissioners, who were correcting comments made by the Mayor last week. They wanted to "set the record straight" on the considerable progress being made by the Port in expanding the Marina. Mayor Bozeman then continued his report by providing updates on the following: · The First Friday Art Walk · Naval Museum · Construction of the new Ice Arena · The money for the parking garage has become an "official" part of the Federal budget · An invitation he made with Port Orchard City Council to become a part of BKAT · A meeting with realtors from Reid Realty regarding the proposed condominiums · The new 3-year Firefighters Union Contract · Interest shown in the US Bank building by the City for the new Safety Building; and · Congratulations were made to Council Member Ed Rollman & wife on the birth of their new baby City Parks & Recreation Director Jim Spencer introduced Mary Malvey who was honored by the Washington State Association of Senior Centers for her work at the Bremerton Senior Center. A proclamation was read to proclaim the week of June 17-22, 2002 as "Management Week", which was accepted by Doug McMicken of the Bangor Chapter of the Management Association. PUBLIC RECOGNITION Don Larson followed up on information provided earlier by Mike Shepherd to plant more trees downtown; and provided several brochures to pass on to City's Community Development Department. Larry Dickerson voiced his opinion against the new positions proposed for the Mayor's office. TAPE #1838 City Council Reg. Mtg. Minutes June 12, 2002 Page 3 of 4 Bob Jaenicke expressed his concern regarding several issues reported on by the Mayor. 9A - ORDINANCE NO. 4806 (SECOND READING) AMENDING BMC CHAPTER 21.02 (ZONING CODE) BY PROVIDING THE REGULATORY MEASURES ALLOWING FLEXIBILITY AND DESIGI" INNOVATION WITH REGARD TO SETBACKS AND LANDSCAPING REQUIREMENTS (#AB02-106): The First Reading of this ordinance was heard at the Council meeting on May 29, 2002. There were no comments from the public. #1295 M/S/C/U (Short/Olsen) Move to pass Ordinance No. 4806 on second reading. 9B - ORDINANCE NO. 4807 (SECOND READING) AMENDING TITLE 7 OF THE BREMERTON MUNICIPAL CODE AND APPROVAL OF CONTRACT WITH KITSAP HUMANE SOCIETY FOR ANIMAL CONTROL SERVICES (#AB02-107}: The First Reading of this ordinance was heard at the Council meeting on May 29, 2002. Police Chief Rob Forbes pointed out that the "Term" of the "Agreement for Animal Control Services" was changed from an effective date of July 1,2002 to October 1, 2002. Winton Read, from the Kitsap Humane Society elaborated at length on this issue to address all concerns raised. Larry Dickerson spoke in favor of this contract to ease the burden currently experienced by the Police Department. Chris Nordleaf provided a packet of information to the Council to support her views against the City adopting this contract. Her main concern was that she did not feel that enough research was done to consider other options, and that the City was making this change to simply make money. Ms. Johnston pointed out that the contract would be reviewed in 6-months to address any concerns with the contract. Joe Labady was against this proposal, and asked the City Attorney if it was illegal to not go for bids on a contract. Mr. Lubovich stated that it was not illegal if negotiating services. Mr. Nvqren reassured the public that this was an "on-going" process, and invited those against the proposed contract, to participate in upcoming reviews of the contract. Mr. Short provided comments to support his approval of this ordinance and contract. Mike Shepherd explained his reasons why he is against the City entering into this Contract. Mr. Younger discussed cost issues and concerns over what will happen to the City's facilities if the City retains back the contract. Winton Read emphasized that this contract was a "two way street", and that the Kitsap Humane Society had concerns over this contract as well. He reiterated that at the 6-month review, there is also the possibility that the Kitsap Humane Society would want out of the contract. Will Maupin summarized that contracting out this type of service has an advantage because if the City were ultimately not satisfied with the service, it would be easier to make a change. Wayne Olsen reminded the public that this issue has been studied for over three years, and also, if the City retained Animal control, the City would then need to provide or build a new building to house the Department, which would add to the cost. ._5 TAPE #1838 City Council Reg. Mtg. Minutes June 12, 2002 Page 4 of 4 President Arends expressed her appreciation for the work done by the Police Department, and congratulated the efforts of the Animal Control Committee. #3065 M/S/C (Nygren/Short) Move to pass Ordinance No. 4807 on second reading, as amended, striking last paragraph of Chapter 7.14.040. Voted in favor of Motion: Shepherd, Younger, Maupin, Short, Olsen, McConnell, and Nygren, Abstained: Arends Motion carried: 7-Yes; 1-Abstention #3095 M/S/C/U (Nygren/Short) Move to approve the contract with Kitsap Humane Society. Voted in favor of Motion: Maupin, Short, Olsen, McConnell, and Nygren Voted opposed to this Motion: Younger and Shepherd Abstained: Arends Motion carried: 5-Yes; 2-No; and 1-Abstention With no further business, the Council meeting was adjourned at 7:05 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/P JIIs/cge c: Normal Distribution File AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FORAGENDA OF: JUNE 26, 2002 ORIGINATING DEPT: CITY COUNCIL MINUTES OF MEETING- JUNE 19, 2OO2 ORIGINATOR: CAROL ARENDS, PRESIDENT DATE SUBMITTED: JUNE 20, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: ENDORSEMENT [--] INFORMATION []~] APPROVED FOR SUBMITTAL BY COUI~CIL PRESIDENT: MAYOR: c-r~z¢~ ~Z z.e.~_~¢_~.~' ' 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: 5. RECOMMENDATION: 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION: PULLED [-] TABLED [--] APPROVED [--] DISAPPROVED ~] AMENDED [--q DATE: COUNCIL DIRECTIVE: 8..kGENDA BILL NO.: -7 9. IMPACT OF NON-PASSAGE: 10. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 11. RESEARCH SOURCES: TAPE #1839 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES June 19, 2002 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4~h Street, Bremerton, Washington, Wednesday, June 19, 2002, at 5:30 P.M., with Acting President Eric Younger presiding. Council members present were Ed Rollman, Daren Nygren, Cecil McConnell, and Wayne Olsen. Council Members Mike Short, Will Maupin, Carol Arends, and Mike Shepherd were attending an Association of Washington Cities (AWC) Conference in Yakima. Also present were Assistant City Attorney Simon Stoker; 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 Pastor Ron Whitney of Neighborhood Christian Center. Acting President Younger 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. 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 I (#AB02-113) #0035 M/S/C/U (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. #0055 M/S/C/U (McConnell/Rollman) On June 19, 2002 the Council approved payment for those vouchers included and further described as follows: Check numbers 271987 through 272191 in the amount of $1,017,229.96. COUNCIL MEMBER REPORTS Ed Rollman was pleased to repeat the announcement regarding the birth of his baby boy, "Denzel Evan Rollman". He also commended the Mayor, along with his staff, and Kitsap Transit for their efforts in assisting a local coffee shop relocate; and lastly, announced a Classic Car Show this evening at Claremont East Retirement Center. Daren N¥.qren invited members of the public to attend the next District 3 neighborhood meeting this Saturday, June 22 from 10:00 to 11:00 A.M. at the Manette Senior Center to discuss an "Update on the City" and the proposed "Ice Arena". He also congratulated the YMCA for receiving national recognition for their "Splash & Jam" sessions for youth. MAYOR'S REPORT - Mayor attending Association of Washington Cities (A WC) Conference. On behalf of Mayor Bozeman, Acting President Eric Younger read a Proclamation to proclaim Saturday, June 22, 2002 as "Bremerton Masonic Lodge #177 Centennial Day", which was accepted by Herb Farman, Secretary of Masonic Lodge #117. All citizens were urged to take part in the 100 Year Anniversary Celebration at the Bremerton Masonic Temple located at 878 5th Street (corner of 5~h Street & Warren Avenue) beginning at 3:00 P.M. TAPE #1839 City Council Reg. Mtg. Minutes June 19, 2002 Page 2 of 4 LEGISLATIVE REPORT A letter was read into the record from Violet Krone Peters who expressed her views and support for the changes going on in the City under the new Administration. PUBLIC RECOGNITION Deanna Meyers expressed several concerns including 1) the poor treatment she recently received by City stair personnel who handle Parking Permit; 2) the major problem with car & foot traffic that still exists at the new ferry dock, including concern over the drop-off point for pedestrians; 3) questioned the apparent lack of control over gang and drug issues after a recent mugging of her stepson by gun point; and 4) repeated problems with garbage pick-up service by Rabanco. Don Larson discussed the formation of a group called "Kitsap Trees" to help protect Kitsap County's Watershed by planting and caring for trees. They are looking for volunteers who may call 373-7593 if interested. He thanked Mr. Nygren and Mr. Shepherd for the support they have shown with this project. 8A - APPOINTMENT OF YONG KANG TO THE LODGING TAX ADVISORY COMMITTEE (#AB02- 114): As Chairman of the Lodging Tax Advisory Committee, Council Member Eric Younger established that 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, owner of the Oyster Bay Inn, fill the vacancy on the committee as a representative of a business responsible for collecting the 4% lodging tax (estimated to be $180,000 this year). There were no comments from the public. #0525 M/S/C/U (McConnell/Olsen) Move to approve and confirm the appointment of Yong Kang to the Lodging Tax Advisory Committee. 8B - RE-APPOINTMENT OF JOAN DINGFIELD TO THE PLANNING COMMISSION (#AB02-115): On behalf of Mayor Bozeman, it was recommended that Joan Dingfield be reappointed to another term on the Planning Commission since her current term will expire on June 21, 2002. There were no comments from the public. Mr. Nvc~ren thanked Ms. Dingfield for volunteering her time to serve on this Committee. #0575 M/S/C/U (Olsen/McConnell) Move to reappoint Joan Dingfield to another term on the Planning Commission. 8C - COLLECTIVE BARGAINING AGREEMENT BETWEEN THE CITY OF BREMERTON AND IAFF LOCAL NO. 437 (#AB02-116): Carol Conley, Human Resources Director, summarized that 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 agreement that expired on December 31, 2001. The new CBA consists of 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. It was verified that the contract was ratified. TAPE #1839 City Council Reg. Mtg. Minutes June 19, 2002 Page 3 of 4 There were no comments from the public. #0650 M/S/C/U (McConnell/Olsen) Move to approve the Collective Bargaining Agreement by and between the City of Bremerton and IAFF Local #437 from January 1, 2002 through December 31, 2004. #0665 M/S/C/U (McConnell/Olsen) Move to make the necessary amendments to the budget to fund the Collective Bargaining Agreement for 2002 in the amount of $156,650. 8D - AGREEMENT BETVVEEN CITY OF BREMERTON AND OPUS NORTHWEST- PHASE ri (#AB- 02-117): Gary Sexton, Project Manager, pointed out that this Phase ~[! design agreement is for the project work through the schematic design phase of the downtown conference center. This agreement follows the Phase ! agreement, which related to pre-design site analysis and work. It was established that Opus Northwest has already signed the contract. Don Larson asked if the City has looked at other waterfront resorts when planning the design for this conference center. Mr. Sexton assured him that the City has looked at other centers in other cities, and felt confident that the design for Bremerton's conference center would be unique, and is expected to exceed any other center. He also elaborated on the surrounding entities that would be included such as shops and even a movie theater. Deanna Myers expressed her concerns about the problems with added traffic from the ferries. Mr. Sexton agreed that traffic has been a problem, and is an issue that is being looked at. He noted that there has been a request for Federal funds to assist with solutions for pedestrian traffic. Ed Rollman asked if there were provisions in place if the developer does not proceed with the contract. Mr. Sexton stated that the success of this project is just as critical to the developer as it is to the City. #1035 M/S/C/U (Rollman/Olsen) Move to approve and authorize the Mayor to finalize and execute the Phase [! Schematic Design Agreement between the City of Bremerton and OPUS Northwest LLC with substantially the same terms and conditions as contained in the proposed agreement; subject to final approval by the City Attorney. 9A - FIRST OF 'I'VVO PUBLIC HEARINGS ON THE CONCESSION AGREEMENT BETVVEEN THF CITY OF BREMERTON AND SILVERDALE ICE ARENA, INC. (#AB02-118): Becky Lorber of the Bremerton Parks & Recreation Department, reported that the Bremerton Parks & Recreation Department has been working with Silverdale ice Arena, Inc. regarding 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. 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 its intent to exercise its 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. TAPE #1839 City Council Reg. Mtg. Minutes June 19, 2002 Page 4 of 4 Douglas Groneman spoke on behalf of the Parks Commission to express their full support. Mr. Younger discussed the similarity of this contract with the contract for the Indoor Soccer Field; and clarified that even though the City was providing money to assist in the relocation, the City would recoup that investment within 2½ -years from the additional property tax that will be received on the building. Mr. N¥~ren asked for assurance that no alcohol would be served, and that traffic issues would be studied. Ms. Lorber responded that they are looking into a Traffic Study, but noted that this location was right on a bus line. #1245 M/S/C/U (Nygren/Olsen) Move to close the first Public Hearing. 9B - RESOLUTION NO. 2860, REGARDING RECOVERY OF FEES FOR REMOVAL OF VEGETATION ON THE LISTED PROPERTIES (#AB02-119): Janet Lunceford, Building Inspector, outlined that Ordinance No. 4584 declares that it is unlawful and a nuisance to allow, continue, or maintain grass and weed exceeding twelve (12) inches in height, shrubs, brush, vines, or trees which constitute a fire hazard or provide a harborage for rats, rodents or horticultural pests, or noxious and poisonous plants. The listed properties are currently in violation of the ordinance and pursuant to Section 9.14 of the Bremerton Municipal Code. The legal requirements for notice were met. Council is asked to approve the removal of the nuisance vegetation on the property and collection of the costs incurred by personal judgement against the owner and a lien against the property. There were no comments from the public. #1350 M/S/C/U (McConnell/Olsen) Move that Council pass Resolution No. 2860, ordering that the nuisance vegetation on the properties identified by the attached listing be removed by the City with fees incurred collected as reasonable abatement costs, which shall become a personal judgment against the owner and a lien against the property. With no further business, the Council meeting was adjourned at 6:15 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/Is/cge c: Normal Distribution; File AGENDA BILL BREMERTON CITY COUNCIL 1, SUBJECT: FOR AGENDA June 2.~, 2002 OF: Pre-Purchase of a 400kW generator for Pump ORIGINATING DEPT: Public Works & Utilities Station WB-3 off of the WA State Bid List. ORIGINATOR: Pat Coxon, WVVTP Manager DATE SUBMITTED: June 10, 2002 2...CLEARANCES: (comment on b~.,~ Director, Public Works/Utilities //~'~/~7~ s~.~.~ ry) 3. ,EXHIBITS · _ .~__~,_ ~ Cummins Northwest Inc. Quotation ~l~lll~CityAttomey . ~-------..~ ~_ ~J~-~ #135620025302103614, from the WA Administrative Services ~aanager ~ ~ ,~ ~ State Bid List. Council Budget & Finance Committ~?.j,,,~ Operations Committee ENDORSEMENT,, INFORMATION , , APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR,';' .... '~ ...... ~-:+ ~'~:~=~ COUNCIL PRESIDENT ~ ~./ 4. SUMMARY STA]-P. MENT AND REQUIREMENT FOR COUNCI, L.ACTION: ' " The Department of Public Works and Utilities seeks approval of the attached quotation from Cummins Northwest inc., to purchase a 400kW Diesel generator from the WA State Bid List. The submitted quotation is for $55,241.00. 8. RECOMMENDATION: Ntove. 'fo- approve the submitted quotation from the WA State Bid List for the 400kW generator, at a cost of $55,241.00. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED AMENDED COUNCIL DIRECTIVE DATE: 11. AGENDA BILL NO: 0~-'/o~-? 2. CLEARANCE COMMENTS: 5. IMPACT ON NON-P,AS~GE: Increased liability to the City, as the City will be unable to complete improvements to Pump Station WB-3 in accordance with the CSO Reduction Plan and federal consent decree. 6. IMPACT ON STAFFING, BU.DGET~., FAClL!TIES,.EqUIPMENT.pR OTHER RESOURCES: This equipment will be incorporated into a construction contract for improvements to Pump Station VVB-3 that is included in the 2002 budget. 7. RESEARCH SOURCES CSO Reduction Plan, Engineer's Estimate Power Generation Quotation Cummins Northwest 811 SW Clrady Way Renton WA 9813,56 (425)277-5,346 May 03, 2O02 Attention: Pat Coxon Project Name: City of Bremerton WB-3 PS upgrade Quotation: ,135620025302103614 Thank you for your inquiry. We are pteased to quote as follows: U.S. Dollars It.e.m D_escri=tion Generator Set 400DFCE Genset-Diese'.,60Hz,4OOkW A$31-2 Duty Rating-Standby Power 1 L090-2 LtSTING- UL2200 1 R002-2 Voltages277/480. 3 Phase Wye 1 B259-2 Alternator-60 Hz, 12 Lead, Extended Range, 105/80c 1 H530-2 Set ControI-Powercommand,Basio Configuration 1 A332-2 Engine Governor-Cummins, Efc, Normally Closed 1 H536-2 Display Languag'e-Engtish 1 G023-2 Switch-Key, Control Operating Mode 1 H244-2 Gauge-Exhaust Gas Tern perature 1 KM65-2 Circuit Breaker Mtg-SIr:gle Brl(r,Left Of Control 1 C127-2 SeDarator-Fue[/Water 1 F159-2 Unit Profile-Full Width 1 A334-2 Engine Starter-24 Vdc Motor 1 A333-2 Battery Charging Alternator-Normal Output 1 E074-2 Engine Cooling-Radiator. 50c Ambient H38g-2 Shutdown-Low Coolan? Level 1 D041-2 Engine Air Cleaner-Normal Duty 1 L028.-2 W~rranty-1 Year Base 1 L050-2 Literature-English 1 A322-2 Packing-Skid, Poly Bag 1 SPEC-G Product Revision - G 1 K911-2 Shutdown Alarm Relay-3 Pdt 1 K974-2 Run Relays-Three 3 Pole Double Throw 1 KA08-2 Alarm-Audible, Engine Shutdown 1 KM48-2 Circuit Breaker~800a,3p,600/660v,Ss Rms,80%,UI/lec 1 KM69-2 Auxiliarycontacts/Tripalarm-Single Circuit Breaker 1 H095-2 Gauge-Fuel Pressure 1 H557-2. Coolant Hester-208/240/480v. Below 4Of Ambient Temp 1 A335-2 Exhaust Connector-Asa Flange 1 L016-2 Test-Extendecl, StanciDy Load, 2 Ho jr 1 L026-2 Test Record-Certified 1 {¸5 PrOJect Name: City of Bremerton WF ' PS upgrade Ite__~m Description Qtv Transfer SwitGh OTPC800 Transfer Switch-Onan,PwrCmd,800 Amp 1 A028-7 Poles-3 1 ~035-7 Al~plication-Ulility To Genset ~ A046-7 Listing-UL 1008/CSA Certification 1 A044-7 Frequency-6D Hertz 1 A042-7 System-3 Phase,3 Wire Or 4 Wire '1 R026-7 Voltage-480 Vac 1 Et001-7 Cabinet-Type ", 1 C024-7 Switch Control-Level 2 1 M017-7 Security-Front Panel 1 M018-7 Display-Digital 1 M023-7 Module-Relay Signal 1 SPEC-A Product Revision - A 1 Quote [flGludes: 0305-0813-01 Battery Charger-10A-24V DC-60Hz-120VAC 1 $P-1 Freight -inbound 1 SP-2 Starting batteries - lead acid 1 SP-3 Operation and maintenance manuals 1 SP-4 Lube oil and antifreeze - initial fill 1 SP-5 Exhaust silencer - GT, super critical, side in end gu; 1 SP-6 Exhaust flex - 24" O.A.L, stainless steel 1 SP-7 Fuel tank - Sub base, UL 142, dual wall, 700 gallon 1 SP-8 Vibration isolators - Caldyn FIJSD spring type, seismic rated SP-9 Shop upfit SP-10 Delivery to job site - tailgate, offloa, ding not; includec~ 1 SP-11 System startup and testing 1 SP-12 Owner demonstration end training 1 Grand Total 55,241 Submftted by Will Barnes Electrical Power Generation Sales (425)277-5346 william.d.barnes @cummi~s.com Attachment to Quotation -Exclusions- , _ Exhaust System All off-engine piping, flanges, gaskets, bolts, wall or roof thimble, insulation, condensate trap and other materials associat~ with exhaust system installation. Fuel System Initial fill of fuel and fuel for testing (800 gallons required). · ~stem Intake and exhaust louvers, air dampers, sheet m~al dueling, flex adapters and associated materials. · Mounting Generator mounting bolts and anchors. · Ins~;pllatlon O~;-loading atjobsite add setting equipment in place. · ~ A.ny applicable sales taxes, licenses, and permits. Factory lead-time - 7 to 9 weeks after drawing al)p. roval~ TERMS AND CONDITIONS Prices are valid for 30 days. Freight is allowed to thejobsite. Terms ca'e C O.D, or net 30 days upon approval of credit. Cancellation charges are 157/0 mini~num after re/case qf order. items listed are excluded and will only be supplied by Cumminsll likbrthwesr, ,!nc. if agreed 'upon in writing b_;, a Sales Repreientative fbt'] Cummins ~ortflwest &c. I1 CONTRACT RESULT Contract No: 04899 GENERATORS, 14OBTLE POWER, VARXOUS SIZES Ill Description: 15KW SKID MOUNTED, 40KW TRAILER MOUNTED, 60KW TRAILER MOUNTED, 125 KW TRAILER MOUNTED, 250KW TRAILER MOUNTED, 400KW STATIC MOUNTED, 600 & 800KW STATIC MOUNTED It State Procurement Officer Tnformation: Name: KENNETH WOODFORK Phone: (360) 902-7422 Email: kwoodfo(~ga.wa.gov Ii Available Documents: The following documents are in Microsoft Word® format unless noted otherwise. ( Viewing Word Files) · Current Contract Tnformation Document · CTZ Supplement in PDF format - File size: 3.0 MB ( Viewing PDF Files) · Contract History Document Return to the State Contracts Main ~lenu, GOD BLESS AMERICA AGENDA BILL BREMERTON CITY COUNCIL I. SUBJECT: Council Approval of Preliminary Plat FOR AGENDA OF: JUNE 26, 2002 The Hearing Examiner has recommended approval of a Preliminary DEPT. OF ORIGIN: DCD Plat entitled "Crown Hill Park." A decision by the City Council ORIGINATOR: Chris Hu,qo, Directc~ Is required to approve the plat. DATE SUBMITTED: June 12, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: DCD Direct~~, o Hearing Examiner Decision C~tyAttorney~"%~-~ ~ ~ o Preliminary Plat City Clerk: ~~ C~,-'- ~ ~ '--- ENDORSE~ I~ION __ APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR~(~ ~ COUNCIL PRESIDENT ~~, ¢:~;~_.Y 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The Hearing Examiner has recommended conditional approval of a seven-lot preliminary plat that was submitted by Dale Oien on April 26, 2002. The site is located on the east side of Rocky Point Road where it intersects with Marine Drive. The Hearing Examiner has recommended approval, subject to ten (10) conditions. The City procedural ordinance indicates that the Hearing Examiner decision constitutes a recommendation to the City Council, and that approval must be considered at a closed record decision hearing. 5. RECOMMENDATION: Hove to either: 1) approve and adopt the hearing examiner's findings and recommendation; 2) modify and approve the findings and recommendation; 3) reject the hearing examiner's recommendation and deny the proposal as originally submitted; or 4) remand for a further hearing before the hearing examiner. 6. RESPONSIBLE OFFICIAL: Christopher R. Hugo ENFORCEMENT OFFICIAL: Christopher R. Hugo EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION PULLED~ TABLED~ APPROVED__ DISAPPROVED~ AMENDED. COUNCIL DIRECTIVE: DATE: 8. AGENDA BILL NO.' ~c-~ - /? 9. CLEARANCE COMMENTS: 10. IMPACT OF NON-PASSAGE: Approval of the plat will create seven building lots within the City. Failure to approve the Rezone and Preliminary Plat may be contrary to law and will deny the City of said seven lots and the resulting housing units. 11. IMPACT ON STAFFING~ BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: The proposed rezone and preliminary plat will create no significant operational changes for the City. 12. RESEARCH SOURCES: Comprehensive Plan Zoning Ordinance State Subdivision Statute (RCW 58.17) File Site Visits OFFICE OF THE CITY ATTORNEY Memorandum Privileged and Confidential TO: City Council Cg: Roger Lubovich [:l'0lll:Simon Stocker Procedure following Hearing Examiner's Recommendation pursuant to Chapter 2.13 BMC DSt9: June 20, 2002 I. Staff Report. II. Presentation. A. Oral argument must be confined to the Hearing Examiner's record. B. Applicants have up to __ minutes [set by council] to present oral argument (may reserve time for rebuttal). C. Opponents have up to __ minutes [set by council] to present oral argument. III. Conclusions. A. The Council reviews the hearing examiner's recommendation under the following standards: 1. Recommendation based on substantial error. 2. Proceedings were materially affected by irregularities in procedure. 3. Recommendation unsupported by material and substantial evidence. 4. Recommendation is in conflict with the City's comprehensive plan. 5. Insufficient evidence presented as to the impact on the surrounding area (if applicable). IV. Decision. A. The Council may take any of the following actions: 1. Approve and adopt the hearing examiner's findings and recommendation. 2. Modify and approve the findings and recommendation. MEMORANDUM: (Hearing Examiner Recommendation~ June 20, 2002 Page: 2 3. Reject the hearing examiner's findings and recommendation and deny the proposal as originally submitted based upon council findings. 4. Remand for a further hearing before the hearing examiner. B. The Council must make findings with its decision by either adopting or modifying the findings of the hearing examiner or by making its own findings. BEFORE THE HEARINGS EXAMINER FOR THE CITY OF BREMERTON In the Matter of the Application of ) NO. PL01-0056 ) Crown Hill Park Dale Oien ) ) FINDINGS, CONCLUSIONS For Approval of a Preliminary Plat. ) AND RECOMMENDATION SUMMARY OF RECOMMENDATION The Heatings Examiner recommends to the Bremerton City Council that the request for approval of a Preliminary Plat to subdivide 1.21 acres of land into seven single-family residential lots be GRANTED, with conditions. SUMMARY OF RECORD Request Dale Oien (Applicant) requests approval of a Preliminary Plat to subdivide 1.21 acres of land into seven single-family residential lots, open space areas (Tracts B and C, a Tot Lot and street landscaping), and an internal access road (Tract A). The subject property is located on the east side of Rocky Point Road at Marine Drive in Bremerton, Washington and is identified as Tax Account Number 152401-2-117-2007. Heating Date An open record heating on the request was held before the Heatings Examiner of the City of Bremerton on May 21, 2002. Testimony At the open record hearing the following individuals presented testimony under oath: 1. Ms. Laura Freed, City Planner 2. Mr. Alan Todd, MAP Ltd., representing the Applicant 3. Ms. Enza Buccini 4. Ms. Helen Miller Exhibit, At the open record hearing the following exhibits were admitted into the record: 1. Staff Report (Revised) 2. Preliminary Plat Application (Revised) dated April 26, 2002 3. Preliminary Plat Map (Revised) dated April 26, 2002 (sheet 1 of 2), with Preliminary Drainage, Sanitary Sewer and Water Plan (sheet 2 of 2). 4. Determination of Nonsignificance dated January 29, 2002 5. Applicant's Comments and Revisions to Staff Report dated May 16, 2002 6. (No Exhibit Submitted) 7. Addendum to Staff Report: Engineering Comments 8. Notice Documents: 8-A. Notice of Public Hearing as published in The Sun 8-B. Declaration of Posting dated May 9, 2002 8-C. Declaration of Mailing dated May 9, 2002, with Mailing List 8-D. Acknowledgment of Receipt of Notice fi.om The Sun dated May 7, 2002 8-E. Notice of Public Hearing 9. Water and Sewer Availability Letter dated October 2, 2001 10. Letter from Alan Todd to Laura Freed dated April 25, 2002 11. SEPA Environmental Checklist (Revised) dated April 26, 2002 12. Preliminary Hydrologic Analysis dated November 29, 2001 13. Fire Department Comments dated May 9, 2002 Upon consideration of the testimony and exhibits submitted at the open record hearing, the Heatings Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant requests approval of a Preliminary Plat to subdivide 1.21 acres of land into seven single-family residential lots, open space areas (Tracts B and C, a Tot Lot and street landscaping), and an internal access road (Tract A). The subject property is located on the east side of Rocky Point Road at Marine Drive in Bremerton, Washington and is identified as Tax Account Number 152401-2-117-2007.~ Exhibits 2, 3 & 10. 2. The City of Bremerton Comprehensive Plan (BCP) designation of the site is Medium- Density Residential (MDR), which allows a density of 8 to 18 dwelling units per acre. There are several Comprehensive Plan goals and policies applicable to the proposal including those to ensure that sufficient land areas are available to allow the level of new development that is needed to accommodate Bremerton's twenty-year population allocation (LU 2-1); that allow adjustment of development guidelines and regulations to prevent development that is inappropriately low and that might waste valuable urban lands (LU 2-2); to protect neighborhoods from incompatible development (LU 4-2); and to provide continuing opportunities tbr a range of housing types and densities (LU 4-3). BCP, Central Bremerton Land Use Plan Map and Land Use Element pages 2 - 6.: 3. The subject property is zoned Residential Medium Density (MF), which is consistent with the Comprehensive Plan designation of the site. The intent of the MF zone is to "maintain existing areas of multiple-unit dwellings and to provide for new development of needed housing within the medium-density (8-18 DU/Acre) level." The allowed base t The subject property is part of Section 15, Township 24 North, Range t East, W.M. A full legal description oft. he property is set tbrth on the Preliminary Plat Map dated April 26, 2002 (Exhibit 3). 2 The statement in Finding No. [ of the Staff Report (Exhibit t) is that the Comprehensive Designation of the site is Low Density Residential (LDR). The Central Bremerton Land Use Plan Map and Finding No. 1 of the Determination of Nonsignificance (Exhibit 4) does not support this statement. The Hearing Examiner references the Land Use Plan Map in support of his f'mding to resolve the conflict. Exhibit I, page I; Exhibit 4; Ci~ of Bremerton Comprehensive Plan. Findings, Conclusions & Recommendation Hearings Examiner for the Ci.ty of Bremerton Crown Hill Park, No. PLOl-O056 Page 2 density in the MF zone is 8-18 dwelling units per acre. The minimum lot size is 3,000 square feet and the minimum lot width is 30 feet. Exhibit 1, page 1; BMC Title 21, Figures 090, 120 and 130. 4. The Applicant proposes seven single-family residential lots ranging from 4,528 to 6,440 square feet in size. Each lot would exceed 30 feet in width. The density of the development would be approximately six dwelling units per acre. City staff analysis of the proposed development, contained within the Determination of Nonsignficance (DNS), is that density would be less than the 8-18 dwelling units per acre. Although it is true that six units per acre is less than the density allowed in the zone, the listing of a range of permissible density indicates an intent to require a minimum level of density of eight units per acre. However, City staff recommends approval of the application as consistent with the zoning for the property and the only citizen objection to the density of the development was that it would be too high. These factors must be considered by the Hearing Examiner when making conclusions about the consistency of this application with the zoning code. Exhibit 1, pages 2 & 4; Exhibit 3; Exhibit 4; Testimony of Mr. Todd: Testimony of Ms. Free& Testimony of Ms. Buccini. 5. The subject property is developed with a single-family residence and detached garage. The residence would remain on site on proposed Lot 2. The garage, which is located in the area of proposed Lot 4, would be demolished. Exhibits 3 & 11. 6. Access to the proposed subdivision would be from Rocky Point Road. Access to individual lots would be from a new 20-foot wide private road (Tract A) which would have a hammerhead design to provide for emergency vehicle turnaround. One side of the road would be improved with a 7.5-foot wide strip of landscaping (1,657 square feet total), which would be set aside as open space. Exhibit 1, page 3; Exhibits 3 & 10. 7. Rocky Point Road is designated a Collector Arterial by the City of Bremerton Comprehensive Plan. BCP, Transportation Element, Figure 2. The Comprehensive Plan defines a Collector Arterial as "[s]treets connecting residential neighborhoods with smaller community centers and facilities as well as access to the minor and principal arterial system." BCP, Transportation Element, page 8. The Comprehensive Plan describes Rocky Point Road in particular as a long cul-de-sac street that "has a high potential for additional congestion and access problems." BCP, Land Use Element page 33. The proposed development is expected tO generate 67 vehicle trips per day. Exhibit 11. 8. Rocky Point Road is not currently improved with sidewalks. Neither the Comprehensive Plan nor the Municipal Code define the minimum road standards for Collector Arterials or specifically require frontage improvements as part of development proposals. While planning staff described Rocky Point Road as inhospitable to pedestrian traffic and recommended that the Applicant be required to install curb, gutter and sidewalk improvements along the property frontage, one resident commented that residents in the area '~don't mind" that there are no sidewalks. Testimon~v of Ms. Freed; Testimon. v of Mr. Todd; Testimony of 34s. Miller. Findings, Conclusions & Recommendation Hearings Exarniner.~br the Ci.tv of Bremerron Crown Hill Park, No. PLOl-O056 Page 3 9. The proposed subdivision would be served by public transit. The nearest bus stop is approximately one-third mile southeast of the site, near the intersection of Marine Drive and Kitsap Way. Exhibit 1, page 3; Exhibit 11. 10. Section 21.02.750 of the Bremerton Municipal Code (BMC) requires that residential developments of more than one acre dedicate or otherwise provide a minimum of 15% of the gross site area for common open space. The open space areas must provide for both active and passive recreational activities. The total open space required for the proposed development is 7,938 square feet (52,918 x 0.15). The Applicant proposes two open space tracts (Tracts B and C), a Tot Lot, and street landscaping to satisfy the open space requirement. Tracts B and C would be located along the property frontage on Rocky Point Road. The combined area of the tracts would be 2,680 square feet.3 The Tot Lot, 3,607 square feet in size, would be located in the eastern portion of the site. The Tot Lot would provide active recreational opportunities. A 7.5-foot wide strip of street landscaping (streetscape) would be placed on one side of Tract A. The total area of the streetscape would be 1,657 square feet.4 The 7,944 square feet of open space provided by Tracts A and B, the Tot Lot and the streetscape would be owned and maintained by the lot owners. A covenant for maintenance would be prepared at the time of final plat. Exhibit 1, page 3; Exhibits 3 & 10. 11. Crown Hill Elementary School is directly north of the site. Exhibit 1, page 3. There are currently no sidewalks along the property frontage between the plat entrance and the school. The Applicant proposes to construct an internal pedestrian walkway between the properties to provide safe walking conditions to and from the school. Exhibit 5; Testimon~v of Mr. Todd. 12. There are no recreational facilities in the immediate vicinity of the site. The nearest City park is Haden Park, located southeast of the site at 15th Street and Lafayette Avenue. The proposed Tot Lot would provide on-site recreational opportunities. Exhibit 1, page 3; Exhibit 3; Exhibit 11. 13. The City of Bremerton would provide water and sewer service to the site. The City issued a Conditional Water and Sewer Availability letter on October 2, 2001 indicating that the utility has adequate capacity to serve the development. The provision of both utilities is conditioned on system improvements as specified in the letter. Exhibit 9. 14. All stormwater runoff from the site, including root~op runoff, would be directed into an on-site storm drainage system. The runoff would be routed through an oil/water separator, released to a biofiltration swale for water quality attenuation, and discharged into an infiltration system. An overflow pipe at the 100-year high water elevation would discharge to an existing conveyance system located along the east side of Rocky Point 3 Tract C would also contain storm drainage facilities. BMC 21.02.750 does not preclude the use of drainage facilities to satisfy the open space requirement. BMC 21.02. 750(a)(3): Exhibit 3. ~ The Preliminary Plat Map (Exhibit 3) depicts the required building setbacks for each lot. For the lots adjacent to the streetscape, the Plat Map depicts the streetscape as being within the front yard setback. The Hearing Examiner notes that BMC 21.02.750(a)(3) does not allow designated open space to include required yard setback areas. Findings, Conclusions & Recommendation Hearings Examiner Jbr the Ci~ of Bremerton Crown Hill Park, ,¥o. PLOl-O056 Page 4 Road. The water quality and infiltration facilities would be located in Tract C and beneath Tract A. The City Engineer has not yet approved the Preliminary Drainage, Sanitary Sewer and Water Plan. Exhibit 3, page 2; Exhibit 7; Exhibit 127 15. The preliminary plat application was routed to the City Fire and Engineering Departments for review and comment. The Fire Deparmaent provided comments regarding fire hydrant placement, minimum road width (20 feet, with 18 feet paved), and address numbers. The Engineering Department provided comments regarding storm drainage plans, a road maintenance agreement, signage, and Rocky Point Road improvements. The comments relating to Rocky Point Road improvements were that the Applicant should execute a Frontage Improvement Agreement for future curb, gutter, sidewalk, street lighting and storm conveyance improvements. Exhibit 7; Exhibit 13. 16. The City of Bremerton was lead agency for review of environmental impacts caused by the proposal. The City reviewed an environmental checklist for the proposed development as required by the State Environmental Policy Act. The City Responsible Official determined that the proposal would not have probable significant impact on the environment and issued a Determination ofNonsignificance (DNS) on January 29, 2002. Exhibit 4. 17. Notice of the open record hearing was posted on site and mailed to adjoining property owners on May 9, 2002 and published in The Sun on May I0, 2002 in accordance with City of Bremerton notice requirements (BMC 21.02.895). Exhibit 8. CONCLUSIONS Jurisdiction Pursuant to Sections 2.13.070, 2.13.080 and 21.02.855 of the Bremerton Municipal Code (BMC), the Hearings Examiner of the City of Bremerton has jurisdiction to hold open record pre-decision hearings on Preliminary Plat applications and recommend action to the City Council. The recommendation may be to approve, approve with conditions, or deny the application. BMC 2.13.110. Criteria for Review To recommend approval of a Preliminary Plat application, the Hearing Examiner must find that the application satisfies the criteria for approval; that the application is consistent with the Comprehensive Plan and other adopted Plans; and that the application conforms to all applicable City development regulations, minimum standards~ and design guidelines. BMC 21.02.885. The criteria tbr approval of a Preliminary Plat are tbund in Chapter 58.17 of the Revised Code of Washington. Section 58.17.110(2) states that a Preliminary Plat application may not be approved unless: (a) appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, 5 Although the proposal has been revised since the Preliminary Hydrologic Analysis (Exhibit 12) was prepared, it appears from the Preliminary Drainage. Sanitary. Sewer and Water Plan (Exhibit 3) that the drainage concept has not changed. Findings, Conchtsions & Recommendation Hearings Examiner for the CiD of Bremerton Crown Hill Park, No. PLOl-O056 Page 5 transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) the public use and interest will be served by the platting of such subdivision and dedication. Conclusion Based on Findings 1. The proposal is consistent with the Comprehensive Plan. The proposal is generally consistent with Comprehensive Plan policies to provide additional housing, protect' neighborhoods from incompatible development, and provide for a range of housing types and densities. One policy that is not supported by the proposal is LU 2-2, which was adopted by the City to address the Growth Management Act's statewide goal to "reduce the inappropriate conversion of undeveloped land into sprawling, low-density development." BCP, Land Use Element, page 3. While the Comprehensive Plan and zoning designation of the property allow a density of 8 to 18 dwelling units per acre, the proposed development would have a density of approximately six dwelling units per acre. It appears from the evidence submitted at the hearing that City staff and the Applicant interpreted the Comprehensive Plan and zoning density range as not precluding densities of less than the minimum stated. This interpretation is not entirely unreasonable because neither the Comprehensive Plan nor the zoning code specifically define the lower number in the density range as a minimum density. The Comprehensive Plan's general definition of density does not discuss the significance of the density range. Although the Zoning Code provides a definition of maximum density, it provides no definition of minimum density. The maximum density definition is "the number of dwelling units per gross acre as stated fbr each zone in the 'Lot Requirements' table..." BMC 21.02. 070. The Hearings Examiner was unable to locate any provision in either document that specifically prohibits densities below the stated density range. Thus, although the conclusion can be made that the proposal is consistent with the Comprehensive Plan, the Hearings Examiner encourages City staff to reconsider its interpretation in light of the policies of the Growth Management Act and the city's own Comprehensive Plan. Findings of Fact Nos. 1-4. 2. With conditions, the proposal is consistent .with identified zoning standards. Each lot would satisfy the minimum lot size and width standards applicable to development within the MF zone. Open space would exceed the minimum required by BMC 21.02.750. However, a condition is needed to ensure that the streetscape open space is outside of all front yard setbacks and the landscaping complies with applicable City standards. Environmental review was conducted pursuant to SEPA and a DNS was issued. Findings of Fact Nos. 3, 4, 10 & 16. 3. With conditions, appropriate provision will be made for the public health, safety and general welfare and for aH other relevant facts. Open space would exceed the minimum required by BMC 21.02.750. Storm drainage would be treated and infiltrated on site. Conditions are needed to ensure that the system satisfies City standards as Findings, Conclusions & Recommendation Hearings Examiner for the Ci_~ of Bremerton Crown Hill Park, No. PLOi-O056 Page 6 identified by the City Engineer. The internal road (Tract A) would allow for emergency vehicle turnaround. The neighborhood is served by public transit. Potable water and sanitary sewer service would be provided. Conditions are needed to ensure that fire safety requirements identified by the Fire Department are satisfied. The proposed Tot Lot would provide on-site recreational opportunities. Considering the character of the neighborhood, the proposed internal connection to Crown Hill Elementary School constitutes "appropriate" provision of safe walking conditions for students who only walk to and from school. Findings of Fact Nos. 6, 9-15. 4. The public use and interest will be served by the creation of seven single-family residential lots complying with City of Bremerton zoning standards. There is a need for additional lots in thc City that would provide an oppommity for construction of additional residential dwelling units in a manner consistent with City codes. Findings of Fact Nos. 1, 3 & 4. RECOMMENDATION Based upon the preceding Findings and Conclusions, the Hearings Examiner recommends that the request for approval of a Preliminary Plat application to subdivide 1.21 acres of land into seven single-family residential lots, as depicted on the Preliminary Plat Map (Revised) dated April 26, 2002 (Exhibit 3), be GRANTED, subject to the following conditions: 1. Development of the site shall be in substantial conformance with the revised project plans dated April 26, 2002, except as modified by the conditions stated below. 2. Interior sidewalks shall be provided, with ADA-compliant curb ramps at the corners. 3. An internal pedestrian path connecting the subdivision with Crown Hill Elementary School shall be provided. The Applicant shall consult with the School District to determine an appropriate connection point; however, the final location and design of the pedestrian path shall be subject to City review and approval. The pedestrian path shall be indicated on the final plat map. 4. A landscaping plan for the Tract A streetscape shall be prepared in accordance with the standards set tbrth in BMC 21.02.730 and submitted to the City for review and approval. 5. No designated open space areas, including the proposed streetscape, shall include required front yard setbacks. 6. A site plan for the Tot Lot shall be submitted to the City for review and approval. 7. A fire hydrant shall be provided near the plat entrance at a location to be approved by the Fire Department. 8. The private road identified as Tract A shall be at least 20 feet wide with an 18-foot pavement width. The road shall have an all-weather surthce. Findings, Conclusions & Recommendation Hearings Examiner for the Ci~ of Bremerton Crown Hill Park..Vo. PLOl-O056 Page 7 9. Six-inch address numbers shall be provided on all structures. 10. The Applicant shall comply with the following requirements identified by the City Engineer: a. A water and sewer utility plan and profile shall be submitted for City review and approval. b. The plan shall include elevations for sewer and storm manholes, catch basin, and pipe inverts, rim elevations and other relevant elevation data. c. The plan shall include drainage swale details. d. The plat map shall include a note identifying the requirement for roof downspouts to be tight-lined to the storm system. e. Recorded copies of the Storm System Maintenance Agreement and Road Maintenance Agreements shall be provided to the City. fi R- 1 signage (stop sign with post) shall be placed at the entrance to the plat. g. The Applicant shall execute a Frontage Improvement Agreement for future curb, gutter, sidewalk, street lighting, and associated storm conveyance along Rocky Point Road. h. A 2-year performance bond may be placed in lieu of installation of street, utility, and storm drainage improvements prior to final plat approval. Decided this __ day of May 2002. Theodore Paul Hunter Heatings Examiner for the City of Bremerton Findings, Conclusions & Recommendation Hearings Examiner for the Ci~. of Bremerton Crown Hill Park, No. PL01-0056 Page 8 BEFORE THE HEARINGS EXAMINER FOR THE CITY OF BREMERTON In the Matter of the Application of ) NO. PL01-0056 ) Crown Hill Park Dale Oien ) ) FINDINGS, CONCLUSIONS For Approval of a Preliminary Plat. ) AND RECOMMENDATION ) SUMMARY OF RECOMMENDATION The Heatings Examiner recommends to the Bremerton City Council that the request for approval ora Preliminary Plat to subdivide 1.21 acres of land into seven single-family residential lots be GRANTED, with conditions. SUMMARY OF RECORD Request Dale Oien (Applicant) requests approval of a Preliminary Plat to subdivide 1.21 acres of land into seven single-family residential lots, open space areas (Tracts B and C, a Tot Lot and street landscaping), and an internal access road (Tract A). The subject property is located on the east side of Rocky Point Road at Marine Drive in Bremerton, Washington and is identified as Tax Account Number 152401-2-117-2007. Hearing Date An open record hearing on the request was held before the Hearings Examiner of the City of Bremerton on May 21, 2002. Testimony At the open record hearing the following individuals presented testimony under oath: 1. Ms. Laura Freed, City Planner 2. Mr. Alan Todd, MAP Ltd., representing the Applicant 3. Ms. Enza Buccini 4. Ms. Helen Miller Exhibits At the open record hearing the following exhibits were admitted into the record: I. Staff Report (Revised) 2. Preliminary Plat Application (Revised) dated April 26, 2002 3. Preliminary Plat Map (Revised) dated April 26, 2002 (sheet 1 of 2), with Preliminary Drainage, Sanitary Sewer and Water Plan (sheet 2 of 2). 4. Determination of Nonsignificance dated January 29, 2002 5. Applicant's Comments and Revisions to Staff Report dated May t 6, 2002 6. (No Exhibit Submitted) 7. Addendum to Staff Report: Engineering Comments 8. Notice Documents: 8-A. Notice of Public Hearing as published in The Sun 8-B. Declaration of Posting dated May 9, 2002 8-C. Declaration of Mailing dated May 9, 2002, with Mailing List 8-D. Acknowledgment of Receipt of Notice from The Sun dated May 7, 2002 8-E. Notice of Public Hearing 9. Water and Sewer Availability Letter dated October 2, 2001 10. Letter from Alan Todd to Laura Freed dated April 25, 2002 11. SEPA Environmental Checklist (Revised) dated April 26, 2002 12. Preliminary Hydrologic Analysis dated November 29, 2001 13. Fire Department Comments dated May 9, 2002 Upon consideration of the testimony and exhibits submitted at the open record hearing, the Hearings Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant requests approval ora Preliminary Plat to subdivide 1.21 acres of land into seven single-family residential lots, open space areas (Tracts B and C, a Tot Lot and street landscaping), and an internal access road (Tract A). The subject property is located on the east side of Rocky Point Road at Marine Drive in Bremerton, Washington and is identified as Tax Account Number 152401-2-117-2007. t Exhibits 2, 3 & 10. 2. The City of Bremerton Comprehensive Plan (BCP) designation of the site is Medium- Density Residential (MDR), which allows a density of 8 to t 8 dwelling units per acre. There are several Comprehensive Plan goals and policies applicable to the proposal including those to ensure that sufficient land areas are available to allow the level of new development that is needed to accommodate Bremerton's twenty-year population allocation (LU 2-1); that allow adjustment of development guidelines and regulations to prevent development that is inappropriately low and that might waste valuable urban lands (LU 2-2); to protect neighborhoods from incompatible development (LU 4-2); and to provide continuing opportunities for a range of housing types and densities (LU 4-3). BCP, Central Bremerton Land Use Plan Map and Land Use Elernent pages 2 - 6,2 3. The subject property is zoned Residential Medium Density (MF), which is consistent with the Comprehensive Plan designation of the site. The intent of the MF zone is to "maintain existing areas of multiple-unit dwellings and to provide for new development of needed housing within the medium-density (8-18 DU/Acre) level." The allowed base t The subject property is part of Section ! 5. Township 24 North, Range t East. W.M. A full legal description of the property is set forth on the Preliminary Plat Map dated April 26, 2002 (Exhibit 3). 2 The statement in Finding No. 1 of the Staff Report (Exhibit 1) is that the Comprehensive Designation of the site is Low Density Residential (I_DR). The Central Bremerton Land Use Plan Map and Finding No. I of the Determination of Nonsignificance (Exhibit 4) does not support this statement. The Heating Examiner references the Land Use Plan Map in support of his finding to resolve the conflict. Exhibit 1, page I; Exhibit 4; Ciw of Bremerton Comprehensive Plan. Findings, Conclusions & Recommendation Hearings Examiner fbr the City of Bremerton Crown Hill Park. No. PLOl-O056 Page 2 density in the MF zone is 8-18 dwelling units per acre. The minimum lot size is 3,000 square feet and the minimum lot width is 30 feet. Exhibit 1, page 1; BMC Title 21, Figures 090, 120 and 130. 4. The Applicant proposes seven single-family residential lots ranging from 4,528 to 6,440 square feet in size. Each lot would exceed 30 feet in width. The density of the development would be approximately six dwelling units per acre. City staff analysis of the proposed development, contained within the Determination of Nonsignficance (DNS), is that density would be less than the 8-18 dwelling units per acre. Although it is true that six units per acre is less than the density allowed in the zone, the listing of a range of permissible density indicates an intent to require a minimum level of density of eight units per acre. However, City staff recommends approval of the application as consistent with the zoning for the property and the only citizen objection to the density of the development was that it would be too high. These factors must be considered by the Heating Examiner when making conclusions about the consistency of this application with the zoning code. Exhibit 1, pages 2 & 4; Exhibit 3; Exhibit 4; Testimony of Mr. Todd; Testimony of Ms. Freed; Testimony of Ms. Buccini. 5. The subject property is developed with a single~farnily residence and detached garage. The residence would remain on site on proposed Lot 2. The garage, which is located in the area of proposed Lot 4, would be demolished. Exhibits 3 & 11. 6. Access to the proposed subdivision would be from Rocky Point Road. Access to individual lots would be from a new 20-foot wide private road (Tract A) which would have a hammerhead design to provide for emergency vehicle turnaround. One side of the road would be improved with a 7.5-foot wide strip of landscaping (1,657 square feet total), which would be set aside as open space. Exhibit 1, page 3; Exhibits 3 & 10. 7. Rocky Point Road is designated a Collector Arterial by the City of Bremerton Comprehensive Plan. BCP, Transportation Element, Figure 2. The Comprehensive Plan defines a Collector Arterial as "[s]treets connecting residential neighborhoods with smaller community centers and facilities as well as access to the minor and principal arterial system." BCP, Transportation Element, page 8. The Comprehensive Plan describes Rocky Point Road in particular as a long cul-de-sac street that "has a high potential for additional congestion and access problems." BCP, Land Use Element page 33. The proposed development is expected tO generate 67 vehicle trips per day. Exhibit I1. 8. Rocky Point Road is not currently improved with sidewalks. Neither the Comprehensive Plan nor the Municipal Code define the minimum road standards for Collector Arterials or specifically require frontage improvements as part of development proposals. While planning staff described Rocky Point Road as inhospitable to pedestrian traffic and recommended that the Applicant be required to install curb, gutter and sidewalk improvements along the property frontage, one resident commented that residents in the area "don't mind" that there are no sidewalks. Testimony of Ms. Freed; Testimony of Mr. Todd; Testimony of Ms. Miller. Findings, Conchtsions & Recommendation Hearings Examiner for the Ci~. of Bremerton Crown Hill Park, No. PLOl-O056 Page 3 $3 9. The proposed subdivision would be served by public transit. The nearest bus stop is approximately one-third mile southeast of the site, near the intersection of Marine Drive and Kitsap Way. Exhibit 1, page 3; Exhibit 11. I 0. Section 21.02.750 of the Bremerton Municipal Code (BMC) requires that residential developments of more than one acre dedicate or otherwise provide a minimum of 15% of the gross site area for common open space. The open space areas must provide for both active and passive recreational activities. The total open space required for the proposed development is 7,938 square feet (52,918 x 0.15). The Applicant proposes two open space tracts (Tracts B and C), a Tot Lot, and street landscaping to satisfy the open space requirement. Tracts B and C would be located along the property frontage on RockY Point Road. The combined area of the tracts would be 2,680 square feet.3 The Tot Lot, 3,607 square feet in size, would be located in the eastern portion of the site. The Tot Lot would provide active recreational opportunities. A 7.5-foot wide strip of street landscaping (streetscape) would be placed on one side of Tract A. The total area of the streetscape would be 1,657 square feet.4 The 7,944 square feet of open space provided by Tracts A and B, the Tot Lot and the streetscape would be owned and maintained by the lot owners. A covenant for maintenance would be prepared at the time of final plat. Exhibit 1, page 3; Exhibits 3 & 10. 11. Crown Hill Elementary School is directly north of the site. Exhibit 1, page 3. There are currently no sidewalks along the property frontage between the plat entrance and the school. The Applicant proposes to construct an internal pedestrian walkway between the properties to provide safe walking conditions to and from the school. Exhibit 5; Testimony of Mr. Todd. 12. There are no recreational facilities in the immediate vicinity of the site. The nearest City park is Haden Park, located southeast of the site at 15th Street and Lafayette Avenue. The proposed Tot Lot would provide on-site recreational opportunities. Exhibit 1, page 3; Exhibit 3; Exhibit 11. 13. The City of Bremerton would provide water and sewer service to the site. The City issued a Conditional Water and Sewer Availability letter on October 2, 2001 indicating that the utility has adequate capacity to serve the development. The provision of both utilities is conditioned on system improvements as specified in the letter. Exhibit 9. 14. All stormwater runoff from the site, including rooftop runoff, would be directed into an on-site storm drainage system. The runoff would be routed through an oil/water separator, released to a bio filtration swale for water quality attenuation, and discharged into an infiltration system. An overflow pipe at the 100-year high water elevation would discharge to an existing conveyance system located along the east side of Rocky Point 3 Tract C would also contain storm drainage facilities. BMC 21.02.750 does not preclude the use of drainage facilities to satisfy the open space requirement. BMC 21.02. 750~a)(3); Exhibit 3. 4 The Preliminary Plat Map (Exhibit 3) depicts the required building setbacks for each lot. For the lots adjacent to the streetscape, the Plat Map depicts the streetscape as being within the front yard setback. The Hearing Examiner notes that BMC 21.02.750(a)(3) does not allow designated open space to include required yard setback areas. Findings. Conclusions & Recommendation Hearings Examiner for the Ci~., of Bremerton Crown Hill Park, No. PLOl-O056 Page 4 zq Road. The water quality and infiltration facilities would be located in Tract C and beneath Tract A. The City Engineer has not yet approved the Preliminary Drainage, Sanitary Sewer and Water Plan. Exhibit 3, page 2; Exhibit 7; Exhibit 12/ 15. The preliminary plat application was routed to the City Fire and Engineering Departments for review and comment. The Fire Department provided comments regarding fire hydrant placement, minimum road width (20 feet, with 18 feet paved), and address numbers. The Engineering Department provided comments regarding storm drainage plans, a road maintenance agreement, signage, and Rocky Point Road improvements. The comments relating to Rocky Point Road improvements were that the Applicant should execute a Frontage Improvement Agreement for future curb, gutter, sidewalk, street lighting and storm conveyance improvements. Exhibit 7; Exhibit 13. 16. The City of Bremerton was lead agency for review of environmental impacts caused by the proposal. The City reviewed an environmental checklist for the proposed development as required by the State Environmental Policy Act. The City Responsible Official determined that the proposal would not have probable significant impact on the environment and issued a Determination ofNonsignificance (DNS) on January 29, 2002. Exhibit 4. 17. Notice of the open record hearing was posted on site and mailed to adjoining property owners on May 9, 2002 and published in The Sun on May 10, 2002 in accordance with City of Bremerton notice requirements (BMC 21.02.895). Exhibit 8. CONCLUSIONS Jurisdiction Pursuant to Sections 2.13.070, 2.13.080 and 21.02.855 of the Bremerton Municipal Code (BMC), the Hearings Examiner of the City of Bremerton has jurisdiction to hold open record pre-decision hearings on Preliminary Plat applications and recommend action to the City Council. The recommendation may be to approve, approve with conditions, or deny the application. BMC 2.13.110. Criteria for Review To recommend approval of a Preliminary Plat application, the Hearing Examiner must find that the application satisfies the criteria for approval; that the application is consistent with the Comprehensive Plan and other adopted Plans; and that the application conforms to all applicable City development regulations, minimum standards, and design guidelines. BMC 21.02. 885. The criteria for approval of a Preliminary Plat are found in Chapter 58.17 of the Revised Code of Washington. Section 58.17.110(2) states that a Preliminary Plat application may not be approved unless: (a) appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, 5 Although the proposal has been revised since the Preliminary Hydrologic .4malysis (Exhibit 12) was prepared, it appears from the Preliminary Drainage. Sanitary Sewer and Water Plan (Exhibit 3) that the drainage concept has not changed. Findings, Conclusions & Recommendation Hearings Exarniner for the Ci~ of Bremerton Crown Hill Park, No. PLOl-O056 Page 5 35 transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) the public use and interest will be served by the platting of such subdivision and dedication. Conclusion Based on Findings 1. The proposal is consistent with the Comprehensive Plan. The proposal is generally consistent with Comprehensive Plan policies to provide additional housing, protect neighborhoods from incompatible development, and provide for a range of housing types and densities. One policy that is not supported by the proposal is LU 2-2, which was adopted by the City to address the Growth Management Act's statewide goal to "reduce the inappropriate conversion of undeveloped land into sprawling, low-density development." BCP, Land Use Element, page 3. While the Comprehensive Plan and zoning designation of the property allow a density of 8 to 18 dwelling units per acre, the proPosed development would have a density of approximately six dwelling units per acre. It appears from the evidence submitted at the hearing that City staff and the Applicant interpreted the Comprehensive Plan and zoning density range as not precluding densities of less than the minimum stated. This interpretation is not entirely unreasonable because neither the Comprehensive Plan nor the zoning code specifically define the lower number in the density range as a minimum density. The Comprehensive Plan's general definition of density does not discuss the significance of the density range. Although the Zoning Code provides a definition of maximum density, it provides no definition of minimum density. The maximum density definition is "the number of dwelling units per gross acre as stated for each zone in the 'Lot Requirements' table..." BMC 21.02. 070. The Hearings Examiner was unable to locate any provision in either document that specifically prohibits densities below the stated density range. Thus, although the conclusion can be made that the proposal is consistent with the Comprehensive Plan, the Hearings Examiner encourages City staff to reconsider its interpretation in light of the policies of the Growth Management Act and the city's own Comprehensive Plan. Findings of Fact Nos. 1-4. 2. With conditions, the proposal is consistent .with identified zoning standards. Each lot would satisfy the minimum lot size and width standards applicable to development within the MF zone. Open space would exceed the minimum required by BMC 21.02.750. However, a condition is needed to ensure that the streetscape open space is outside of all front yard setbacks and the landscaping complies with applicable City standards. Environmental review was conducted pursuant to SEPA and a DNS was issued. Findings of Fact Nos. 3, 4. 10 & 16. 3. With conditions, appropriate provision will be made for the public health, safety and general welfare and for all other relevant facts. Open space would exceed the minimum required by BMC 21.02.750. Storm drainage would be treated and infiltrated on site. Conditions are needed to ensure that the system satisfies City standards as Findings, Conc/usions & Recommendation Hearings Examiner for the Ci~. of Bremerton Crown Hill Park, ~Vo. PLOl-O056 Page 6 identified by the City Engineer. The internal road (Tract A) would allow for emergency vehicle turnaround. The neighborhood is served by public transit. Potable water and sanitary sewer service would be provided. Conditions are needed to ensure that fire safety requirements identified by the Fire Department are satisfied. The proposed Tot Lot would provide on-site recreational opportunities. Considering the character of the neighborhood, the proposed internal connection to Crown Hill Elementary School constitutes "appropriate" provision of safe walking conditions for students who only walk to and from school. Findings of Fact Nos. 6, 9-15. 4. The public use and interest will be served by the creation of seven single-family residential lots complying with City of Bremerton zoning standards. There is a need for additional lots in the City that would provide an opportunity for construction of additional residential dwelling units in a manner consistent with City codes. Findings of Fact Nos. 1, 3 & 4. RECOMMENDATION Based upon the preceding Findings and Conclusions, the Hearings Examiner recommends that the request for approval of a Preliminary Plat application to subdivide 1.21 acres of land into seven single-family residential lots, as depicted on the Preliminary Plat Map (Revised) dated April 26, 2002 (Exhibit 3), be GRANTED, subject to the following conditions: 1. Development of the site shall be in substantial conformance with the revised project plans dated April 26, 2002, except as modified by the conditions stated below. 2. Interior sidewalks shall be provided, with ADA-compliant curb ramps at the comers. 3. An internal pedestrian path connecting the subdivision with Crown Hill Elementary School shall be provided. The Applicant shall consult with the School District to determine an appropriate connection point; however, the final location and design of the pedestrian path shall be subject to City review and approval. The pedestrian path shall be indicated on the final plat map. 4. A landscaping plan for the Tract A streetscape shall be prepared in accordance with the standards set forth in BMC 21.02.730 and submitted to the City for review and approval. 5. No designated open space areas, including the proposed streetscape, shall include required front yard setbacks. 6. A site plan for the Tot Lot shall be submitted to the City for review and approval. 7. A fire hydrant shall be provided near the plat entrance at a location to be approved by the Fire Department. 8. The private road identified as Tract A shall be at least 20 feet wide with an ! 8-tbot pavement width. The road shall have an all-weather surface. Findings, Conclusions & Recommendation Hearings Examiner Jbr the Ci~. of Bremerton Crown Hill Park, :Vo. PLOl-O056 Page 7 37 9. Six-inch address numbers shall be provided on all structures. 10. The Applicant shall comply with the following requirements identified by the City Engineer: a. A water and sewer utility plan and profile shall be submitted for City review and approval. b. The plan shall include elevations for sewer and storm manholes, catch basin, and pipe inverts, rim elevations and other relevant elevation data. c. The plan shall include drainage swale details. d. The plat map shall include a note identifying the requirement for roof downspouts to be tight-lined to the stOrm system. e. Recorded copies of the Storm System Maintenance Agreement and Road Maintenance Agreements shall be provided to the City. fi R-1 signage (stop sign with post) shall be placed at the entrance to the plat. g. The Applicant shall execute a Frontage Improvement Agreement for future curb, gutter, sidewalk, street lighting, and associated storm conveyance along Rocky Point Road. h. A 2-year performance bond may be placed in lieu of installation of street, utility, and storm drainage improvements prior to final plat approval. Decided this _~_day of May 2002. Theodore Paul Hunter Hearings Examiner for the City of Bremerton Findings, Conclusions & Recommendation Hearings Examiner for the Citv of Bremerton Crown Hill Park, ~Vo. PL01-0056 Page 8 AGENDA BILL BREMERTON CITY COUNCIL I. SUBJECT: Council Approval of Rezone and FOR AGENDA OF: June 26, 2002 Preliminary Plat The Hearing Examiner has recommended DEPT. OF ORIGIN' DCD approval of a Rezone and Preliminary Plat entitled "Garland ORIGINATOR: Chris Hu,qo, Directo~~ Place." A decision by the City Council Is required to approve the DATE SUBMITTED: June 12, 2002 rezone and plat 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: DCD Dire~ o Hearing Examiner Decision CityAttor~ ~-~ o Preliminary Plat it C y Clerk: o Rezone Application MAYO R-~-~~;~- ~-~CI L PR ESID E N T ~ ~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The Hearing Examiner has recommended conditional approval of a rezone from SF-2 to SF-3 and a twelve-lot preliminary plat that were submitted by Eric Holm on December 7, 2001. The site is located on the south side of Sylvan Way approximately 300 feet west of Rickey Road. The Hearing Examiner has recommended approval, subject to twenty (20) conditions. The City procedural ordinance indicates that the Hearing Examiner decision constitutes a recommendation to the City Council, and that approval must be considered at a closed record decision hearing. 5. RECOMMENDATION: Move to either: 1) approve and adopt the hearing examiner's findings and recommendation; 2) modify and approve the findings and recommendation; 3) reject the hearing examiner's recommendation and deny the proposal as originally submitted; or 4) remand for a further hearing before the hearing examiner. 6. RESPONSIBLE OFFICIAL: Christopher R. Hugo ENFORCEMENT OFFICIAL: Christopher R. Hugo EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION PULLED~ TABLED APPROVED~ DISAPPROVED~ AMENDED~ COUNCIL DIRECTIVE: DATE: 8. AGENDA BILL NO.' $? 9. CLEARANCE COMMENTS: 10. IMPACT OF NON-PASSAGE: Approval of the plat will create twelve building lots within the City. Failure to approve the Rezone and Preliminary Plat may be contrary to law and will deny the City of said twelve lots and the resulting housing units. 11. IMPACT ON STAFFING, BUDGETS~ FACILITIES, EQUIPMENT OR OTHER RESOURCES: The proposed rezone and preliminary plat will create no significant operational changes for the City. 12. RESEARCH SOURCES: Comprehensive Plan Zoning Ordinance State Subdivision Statute (RCW 58.17) File Site Visits OFFICE OF THE CITY ATTOBNEY Memorandum Privileged and Confidential TO: City Council Roger Lubovich I:r01ll--s imon St ocker. ~._~~-_..~ Procedure following Hearing Examiner's Recommendation pursuant to Chapter 2.13 BMC BItO: June 20, 2002 I. Staff Report. II. Presentation. A. Oral argument must be confined to the Hearing Examiner's record. B. Applicants have up to __ minutes [set by council] to present oral argument (may reserve time for rebuttal). C. Opponents have up to __ minutes [set by council] to present oral argument. III. Conclusions. A. The Council reviews the hearing examiner's recommendation under the following standards: 1. Recommendation based on substantial error. 2. Proceedings were materially affected by irregularities in procedure. 3. Recommendation unsupported by material and substantial evidence. 4. Recommendation is in conflict with the City's comprehensive plan. 5. Insufficient evidence presented as to the impact on the surrounding area (if applicable). IV. Decision. A. The Council may take any of the following actions: 1. Approve and adopt the hearing examiner's findings and recommendation. 2. Modify and approve the findings and recommendation. ¥/ MEMORANDUM: (Hearing Examiner Recommendation~ June 20, 2002 Page: 2 3. Reject the heating examiner's findings and recommendation and deny the proposal as originally submitted based upon council findings. 4. Remand for a further heating before the heating examiner. B. The Council must make findings with its decision by either adopting or modifying the findings of the hearing examiner or by making its own findings. City of Bremerton Application for ZONE RECLASSIFICATION (Rezone) FEE: A ZONE RECLASSIFICATION (Rezone) of property from one zoning district to another may be approved by the City Council, following public hearings before both the Planning Commission and City Council and, in most cases, one or more public neighborhood meetings to gather information and ensure adequate opportunities for public comment. To apply for a REZONE, please complete this application form with as much detail as possible about your proposal and submit it along with the required attachments and application fee. NOTE: The process for a rezone is described in the Bremerton Municipal Code, Section 21.02.920. 1. APPLICANT: Name: Eric Holm Address: P.O. Box 118 City: Seabeck State: WA Zip: 98380 Telephone: WORK: 830-4851 HOME: 2. CONTACT PERSON: (If other than applicant). Name Alan G. Todd, Managing Partner, MAP, Ltd. Telephone: Work: 692-5525 Home: 3. TITLE HOLDER: (If other than applicant). Name: Eric Holm and Dorothy Holm Address: P.O. Box 118 City: Seabeck State: WA Zip Code: 98380 Telephone: (360) 830-4851 DEC 0 7 2001 BREIVIER'fON #5153.00/AGT/12-5-Ot I of 4 81JILB1N6 0EPARTf~IENT 4. PROPERTY LOCATION: Address General Location (intersecting streets, etc.): Garland Lane (private road) south of Sylvan Way + 300' west of Rickey Road. 5. COMPREHENSIVE PLAN DESIGNATION: Residential Low Density 6. SHORELINE ENVIRONMENT DESIGNATION: N/A 7. CURRENT ZONING: SF-2 8. REQUESTED ZONING: SF-3 9. ASSESSOR'S ACCOUNT NUMBER(S): [Parcels to be Rezoned] 022401-3-153-2004, 022401-3-154-2003 10. COVENANTS, EASEMENTS OR OTItER RESTRICTION: Briefly describe here and also show on map. There is an existing 40' easement for access and utilities known as Garland Lane, also an ex/sting 30' easement for access and utilities along the west property margin. 11. BASIS FOR REQUEST: State clearly and completely the reasons or rationale for this REZONE request. Attach additional pages as necessary. See Attached Exhibit "A" 12. CRITERIA FOR APPROVAL: See attached Exhibit "B" This REZONE request can be approved by the Bremerton City Council only if all of the following can be answered "YES" 1. [s the proposed Rezone consistent with the Comprehensive Plan? (See Bremerton Municipal Code, Section 21, Figure 090, "Plan/Zoning Consistency" of this code.) 2. Is the Rezone justified for one or more of the following reasons? It is in the public interest to approve the Rezone to accommodate needed changes within the immediate vicinity or neighborhood. It will correct a zone classification or boundary that was inappropriate when established. It is a planned step in a phasing process to gradually bring zoning into consistency with the 20-year Comprehensive Plan when appropriate. It will place or remove an overlay zoning designation without affecting the underlying zoning desi~maation without affecting the underlying zoning. #5153.00/AGT/12 -5-01 2 of 4 3. Is there a public need for the proposed Rezone that will clearly benefit the local neighborhood and/or the community of Bremerton? 4. Are all essential public facilities and services available and adequate, or can be made available, to serve the types and levels of development permitted in the requested zone? 5. Will the area being proposed for rezoning become part of a larger zoning district or form a new district which will not be considered an isolated "spot zone,'? * Please provide below (or on separate paper) a detailed explanation to show as clearly as possible how your REZONE request is consistent with each of the above criteria: See Attached Exhibit "B" 13. ATTACHMENTS: A. Notification List: Typed name/address labels for the owners of all property within a radius of 300 feet of the subject REZONE area are required. These may be provided by the applicant, or the City Planning Division will assemble the labels at a cost to the applicant of $2 per label, at the applicant's option. B. Location Map: A map showing the general location within the community of the area subject to the REZONE, including streets, shorelines and other major features. C. Vicinity Map: A Kitsap County Assessor's map or similar map at a scale of 1"-- 100' or 200'. · The subject REZONE area shall be in the center. · All existing streets, shorelines, and other physical features shall be shown on the map. · Existing land uses within a radius of 300 feet of the subject area shall be clearly indicated. · Any additional information that will help to clearly define the proposal. D. Environmental Checklist: Obtain form at Planning Division Office. 14. PRE-APPLICATION CONFERENCE: The Planning Division should be consulted to discuss the proposal and specific information needs prior to submittal of the REZONE application package. #5153.00/AGT/12-5-01 3 of 4 q5 15. APPLICANT'S STATEMENT: I hereby state that I am the applicant, or the authorized agent for the applicant and that all foregoing statements and information provided herein are, to the best of my knowledge and belief, true and complete. I understand that the filing fee accompanying this application is not refundable, is for the purpose of partially defi-aying the administrative expenses of processing this application, and that the payment of said fee does not result in automatic approval of this request. Applicant Date The City of Bremerton does not discriminate on the basis of race, sex, color, religion, national orig~n, age, or disability in the provision of services, in programs or activities, or employment opportunities and benejqts. //5153.00/AGT/12-5-01 4 of 4 EXHIBIT "A" The applicant is proposing to develop 2.4 acres along the south side of Sylvan Way as a single family residential plat. The subject property lies within the East Bremerton Residential Low Density Comprehensive Plan designation, and is currently zoned SF-2, with base density of between 1-8 DU/acre. In the SF-2 zoning designation, minimum lot size is 9000 s.f.. The subject property is encumbered with a 40' access and utilities easement through the center. This easement is a private road known as Garland Lane. Additionally there is a 30' encumbering easement for access and utilities along the west property margin. These easements reduce the net residential developable lot area to 1.92 acres. Using a minimum lot size of 9000 s.f. per lot (SF- 2 zoning) this would yield a maximum of 9 lots. In order to develop this property, the developer will be required to provide extensive improvements to the infrastructure, including: bringing Garland Lane up the City's local access road standards; extension of water and sewer mains and appurtenances; providing stormwater management facilities for the developed site; and road frontage improvements on Sylvan Way. Due to the expense of these improvements, and the reduced lot area available because of encumbering easements, the applicant is requesting to rezone this property from SF-2 to SF-3. The base density for SF-3 is 3-8 DU/acre, with minimum lot size of 5,000 s.f.. The SF-3 zoning would allow the developer to plat the subject property into 12 single family residential lots with a density of 5 DU/acre. Increasing the number of lots will ameliorate the market value of the property, and thereby help to defray the expenses the applicant will incur in developing the property. #5153.00/AGT/12-5-01 ¥7 EXHIBIT "B" 1. The Rezone from SF-2 to SF-3 is consistent with the Residential Low Density Comprehensive Plan designation. 2. This Rezone will accommodate needed improvements to the existing infrastructure thereby serving the public interest for the immediate vicinity. 3. The Rezone will benefit the Bremerton Community by providing the opportunity for new residential construction of 12 single family homes within the City. 4. All essential public facilities and services are available to the site. The applicant will provide any required improvements to existing facilities as part of site development. 5. The area being proposed for Rezone will not be considered an isolated "spot zone". In fact the site lies within one of two isolated SF-2 zones in the Sheridan Zoning district. This particular SF-2 zone is surrounded by SF-3, MF, MR and DR zones. #5153.00/AGTspv/12/5/01 CITY OF BREMERTON OFFICE OF THE HEARING EXAMINER PL01-0057 APPLICATION FOR REZONE ) FINDINGS OF FACT AND APPLICATION FOR PLAT ) CONCLUSIONS OF LAW APPROVAL. ) AND RECOMIVIENDATION APPLICANT: ERIC HOLM ) ) FINDINGS OF FACT 1. Eric and Heather Holm, Dorothy and Calvin Holm, and James C. Holm are the legal owners of a property located at Garland Lane and NE Sylvan Way in the City of Bremerton. The property is identified under Tax Account No's: 022401-3-153-2004 and 022401-3-154-2003. The legal descriptions for the two parcels are as follows: (Assessor Parcel No. 122401-3-153-2004) THAT PORTION OF THE NORTH 293.3 FEET, AS MEASURED ALONG THE WEST LINE, OF THE EAST HALF OF THE EAST HALF OF THE EAST HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER, SECTION 2, TOWNSHIP 24 NORTH, RANGE I EAST, W.M., LYING EAST OF THAT CER TAIN FENCE PER BO UNDARY LINE A GREEMENT BEARING AUDITOR'S FILE NO. 78102 70096, AS REFERRED TO IN DOCUMENT BEARING AUDITOR'S FILE NO. 8202720019, RECORDS OF KITSAP COUNTY, WASHINGTON; EXCEPT THE WEST 30 FEET THEREOF, SITUATE IN KITSAP CO UNTY WASHINGTON. TOGETHER WITH THE FOLLOWING: THAT PORTION OF THEN SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 2, TOWNSHIP 24 NORTH, RANGE 1 EAST, WM., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: THE WEST HALF OF THE NORTH HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 2; EXCEPT THE NORTH 30 FEET FOR SYLVAN WAY, AND EXCEPT THE EAST 178 FEET AS MEASURED ALONG THE NORTH LINE THEREOF, SITUATE IN KITSAP COUNTY, WASHINGTON. Assessor Parcel No. 122401-3-154-2003 THE EAST 178 FEET, AS MEASURED ALONG THE NORTH LINE OF THE Preliminary Plat/Rezone Heating Examiner Holm tPL01-0057) Page -1- City of Bremerton FOLLOWING: THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 2, TOWNSHIP 24 NORTIt, RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: THE WEST HALF OF THE NORTH HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 2; EXCEPT THE NORTH 30 FEET FOR SYLVAN WAY, SITUATE IN KITSAP COUNTY;, WASHINGTON. 2. The Garland Place parcels have a current zoning designation of SF-2 and a Comprehensive Plan designation of Low-Density Residential (LDR). The applicant has proposed a change in zoning to SF-3. Under the provisions of the Comprehensive Plan, the zones that implement the LDR Comprehensive Plan designation are SF-1, SF-2, SF-3, DR, LPO and PS. A rezone of the subject parcels fi.om SF-2 to SF-3 is consistent with the LDR Comprehensive Plan designation. 3. Current zoning for properties surrounding these parcels are as follows: Zoning Comp Plan Designation North: Residential Medium Density (MF) Medium Density Residential (MDR) South: Residential Low Density (SF-2) Low Density Residential (LDR) East: Residential Low Density (SF-2) Low Density Residential (LDR) West: Residential Low Density (SF-3) Low Density Residential (LDR) A rezone of this property from SF-2 to SF-3 will allow a smaller lot size and an increase in density for these two parcels. Property which has been developed to the south and west of this parcel have been developed in larger lots with single-family residences, however, the property directly to the east is proposed for development as a higher density PUD. Increasing the density on these two parcels will provide for more single-family housing in East Bremerton. The properties surrounding this parcel are being developed with more intense uses. The area appears to be in transition from suburban to more urban development. Urban infrastructure and utilities are available in the area. The cost of extensions of that infrastructure to service this plat will be borne by the developer. An upzone of these two parcels is consistent with the goals of the Bremerton Comprehensive Plan to provide more housing stock to meet the needs of a growing population, and supports a goal of the Growth Management Act to provide population growth inside cities. Infrastructure improvements to Garland Lane and its dedication as a public street will benefit neighboring properties using the street. 4. The project site includes two lots bisected by a 40-foot easement partially developed as Garland Lane. The property measures 2.4 acres in size. The Preliminary Plat Application seeks to divide the 2.4 acres into 12 individual single-family residential lots, ranging in size from 5,033 sq.f[, to 9,031 sq.f~. In addition to these 12 lots, a drainage lot has been set aside for construction of a stormwater management facility. Prelimma~ Plat?Rezone Hearing Examiner HoLm (PL01-00573 Page -2- City of Bremerton 5. Each lot in this subdivision, when developed under SF-3 zoning, must provide a front yard setback of 15-feet and a minimum of 20-feet to a garage; a side yard setback minimum of 5-feet, and a rear yard setback of 15-feet. The front yard setbacks in this plat must conform to Figure 070(e), Title 21, Bremerton Municipal Code (BMC), Appendix, Page 5, 6. The minimum lot size in the SF-2 zone is 9,000 sq.ft.; a rezone of these lots to the requested SF-3 zone would allow a minimum lot size of 5,000 sq.ft. The minimum lot width in the SF-2 zone is 50-feet; a rezone of this property to the SF-3 zone would allow a minimum lot width of 40-feet. Garland Lane is an existing 40-foot easement for ingress/egress and utilities. As a part of this plat development, the applicant will build a two lane 20-foot roadway which will conform with City of Bremerton roadway standards for a public street. No parking will be allowed on the street. A planted 9-foot streetscape is designed for the eastern edge of Garland Lane and a sidewalk and planting strip have been planned for the western edge of Garland Lane. The required 7.5-foot easements for utilities have been reserved on each side of Garland Lane. 7. This property has been previously subdivided using the short plat process (Short Plat No. 6598, Auditors File 9406210321). That Short Plat was amended in October of 1996 by the Kitsap County Department of Community Development. The property remains undeveloped. The property is divided into two parcels, with one parcel located on the west and the other on the east side of Garland Lane. The parcel located on the west side of Garland Lane is undeveloped and is dominated by miscellaneous pasture grasses, scotch broom and Himalayan Blackberry. The parcel appears to have once been pasture land. The west parcel does not contain any wetlands (Wiltermood Associates, Inc. Report, November 3, 2002, EXtIIBIT 11). The acreage is more or less evenly divided between the two parcels. The east parcel is still heavily vegetated with an established mixed coniferous/deciduous forest that is dominated by Douglas Fir, BigleafMaple and Pacific Madrona. The shrub layer is dominated by Hazelnut, Salmonberry, Oregon Grape and Salal. According to the Wiltermood report, this east parcel does not have any wetlands but a Category III wetland is located near the southeast comer of the parcel. A 50-foot wetland buffer for protection of that wetland will extend over the southeast comer of this eastern parcel. The buffer will be separated from the rest of the lot by split rail fencing. 8. Stormwater management is provided by an engineered drainage system. The preliminary drainage and utility plan has been approved by the Department of Engineering and Public Works. A drainage lot has been set aside in the southeastern comer of the parcel. This lot will contain the stormwater drainage ponds designed for the stormwater management system on this 12-lot subdivision. Security fencing will surround the drainage ponds. This drainage lot will also contain the 50-wetland buffer required on the southeast comer of the property to protect the off- site Category III wetland. A split rail fence will separate the wetland buffer from a 4-foot wide pedestrian trail crossing the lot. 9. The drainage lot located in the plat's southeast comer will be owned in common by the homeowners in the subdivision. A maintenance agreement will be required to be signed by a Homeowners' Association assuming responsibility for the maintenance and operation of the drainage system in the subdivision. This maintenance agreement must be reviewed and approved by the Department of Engineering and Public Works prior to final plat approval. The maintenance agreement will be noted on the face of the plat and will become binding on all subsequent property owners. Preliminary Plat/Rezone Hearing Examiner Holm [PL01-0057~ Page -3- City of Bremerton 10. The site plan does not include any designated areas for parks or recreation other than the short pedestrian trail across the drainage lot. The applicant stated that it is the intention of the plat owners to take advantage of the regional, community and neighborhood park system in the East Bremerton area, including Lions Field, Stevenson Canyon Park, the East Park Greenbelt and the YMCA park, Sheridan Community Center, Bremerton Theater, the Berry Patch on Sylvan Way, Baton Park, the Senior Center at Manette, and several small street and waterfront parks are in the area. This project is within approximately ~/~ mile of the Blueberry Patch, a City of Bremerton Community Park located east of Pine Road and south of Sylvan Way. 11. The open space in the plat exceeds the required 15% (BMC 21.02.750). The site plan designates 17,305 sq.t~., or 16.5% of the plat as open space. This open space includes areas set aside for the drainage lot, the linear streetscape between the sidewalk and the edge of the pavement along the west side of the roadway, and the 9-foot linear streetscape along the east margin of the roadway. 12. The sidewalk constructed along the west side of Garland Lane will provide pedestrian access to the presently existing Kitsap Transit bus shelter located on Sylvan Way just to the west of Garland Lane. The bus stop has a passenger waiting shelter. Kitsap Transit staff has reviewed this proposal and has indicated support for the interior pedestrian circulation provided by the sidewalk to the bus shelter at Sylvan Way. 13. Potable water service will be provided by the City of Bremerton Municipal Utilities which has provided a conditional water and sewer availability letter to the applicant dated December 10, 2001. Water service is presently available within the Garland Lane easement and that system will be expanded to serve the new lots in this subdivision. Sewer service is also provided by the City of Bremerton Municipal Utilities and will be available to serve the additional lots in this subdivision under the conditions listed in the water and sewer availability letter to the applicant dated December 10, 2001. A sewer main extension must be provided by the applicant to serve the proposed plat. This service will connect to available sewer service now existing north of the proposed plat in the Garland Lane easement. 14. Police and fire protection will be provided by the City of Bremerton Police and Fire Departments. The Bremerton Fire Department participated in a pre-application meeting with the applicant and required the following conditions for the plat: 1. Provide fire flow and hydrant UFC APp 1II A & B; 2. Access roads shall be all weather and have a turnaround; 3 Shall meet Bremerton Road Standard, UFC 902; 4. Storz adapter and marker required; 5. Provide 6-inch address numbers on all buildings. The site plan roadway is designed with a "T-Type" turnaround with minimum outside radii of 28-feet. This emergency vehicle turnaround is an acceptable alternative to a 120-feet hammerhead according to specifications from the Fire Marshall [E, XHIBIT 30]. There is an existing fire hydrant on the north side of Sylvan Way, east of the plat entrance. An additional fire Preliminary Plat/Rezone Heating Examiner Holm (PLO 1-00573 Page -4- City of Bremerton hydrant will be installed approximately 160-feet south of Sylvan Way at the midpoint of the plat roadway. [See Sheet 2 of EXttlBIT 33.] The requirement for address numbers on all buildings will be included as a recommended condition for the plat. 15. The project site is located directly north of a seres of parcels that have been developed for single-family residences. Many of these parcels have retained an easement for ingress/egress and utilities over the Garland Lane easement. The improvements will extend about 300-feet south from Sylvan Way NE, to the south property line of the Garland Place plat. The 40-foot easement continues south for more than 500-feet, and provides access for several single-family residences developed to the south of the parcel. The City of Bremerton Engineering and Public Works Department has determined that Garland Lane should be developed as a public fight-of-way [E, XttlBIT 36]. This dedication of roadway will be made a condition of plat approval. Completion of the roadway improvements will be required prior to final plat approval. The Department of Engineering and Public Works have also required the dedication of Garland Lane access along the plat frontage on Sylvan Way. This access area will be dedicated to the City at the time of dedication of the remainder of Garland Place. This dedication must occur prior to final plat approval. 16. No on=street parking has been included in the design of Garland Lane roadway. The lots provide sufficient area for parking at least one additional parking space per dwelling unit above the minimum two spaces required. City of Bremerton roadway standards allow a waiver of the on-street parking requirement if additional off-street parking is available on the lots. [See ~IBIT 37]. The Engineering Department has approved the site plan without on-street parking [EXttlBIT 36]. 17. The property located immediately to the east of this project site is a 4.3-acre parcel which has been proposed for development as a PUD. This PUD will include 20-units of zero lot line housing in the northern 300-feet of the parcel. Access will be by private road off Rickey Road, heading in an east/west direction toward the Garland Place plat. No cross connection with Garland Lane has been recommended by the Department of Engineering and Public Works [FA~ImT ~ Sl. 18. The Department of Engineering and Public Works has required that the applicant sign a frontage improvement agreement for frontage improvements on Sylvan Way, as a condition of approval of this preliminary plat. This frontage improvement agreement is to be recorded against all parcels in the plat. The improvements anticipated to be included in the frontage improvement agreement will include curb, gutter, sidewalks, street lighting and stormwater conveyance piping. 19. This subdivision application required State Environmental Policy Act (SEPA) review. That review was completed by the City of Bremerton Responsible Official and was published on January 29, 2002. The Determination ofNonsignificance (DNS) elicited no comments. The appeal period expired on February 12, 2002; that DNS is now final. Preliminary Plat/Rezone Heating Examiner Holm tPL01-0057) Page -5- City of Bremerton 20. Notice of the pubhc hearing was sent to property owners within 300ofeet of the subject property by Laura Freed of the Department of Planning and Community Development; notice of the public hearing was posted at Garland Lane on February 8, 2002 [F_gJtlBIT 25]; notice of the public hearing was also published in the Bremerton Sun in advance of the hearing. This public heating was held before the City of Bremerton Administrative Hearing Examiner, pursuant to BMC 2.13.070. CONCLUSIONS OF LAW 1. The Hearing Examiner has jurisdiction over this application for rezone and preliminary plat approval under BMC 2.13.070. It is the Hearing Examiner's responsibility to conduct the open record pre-decision public hearing and prepare findings and conclusions for the City Council's consideration. 2. Adequate legal notice was given of the public heating conducted in this matter on February 20, 2002 and continued to March 13, 2002. The hearing record in this matter was closed on March 20, 2002, after the receipt of an E-Mail from Paul Wandling from the Department of Engineering and Public Works, approving the revised site plan submitted by the applicant on March 13, 2002. 3. The two parcels which are the subject of this application for rezone and subdivision preliminary plat approval were previously short platted by the applicant in October of 1996. More than five years have passed since that short plat application was approved, therefore, the restriction on further subdivision of these parcels in no longer in effect (BMC 20.04.110). 4. The City of Bremerton Critical Areas Ordinance does not allow regulated activities within a wetland boundary or buffer, except in special circumstances set forth in BMC 21.22.230. Those special circumstances do not exist in this application, therefore, BMC 21.22.220 requires that a wetland buffer of 50-feet, measured from the upland edge of the wetland, be set aside. The wetland is not located on this parcel but immediately adjoins the southeast comer of the parcel. The wetland buffer must include a portion of the southeast comer of the subject property. The site plan has properly delineated a buffer area for the Class III wetland on the site. This wetland buffer will be protected by a split rail fence constructed around its perimeter to further protect the buffer area from disturbance. The set aside of the 50-foot buffer in the comer of this property with protective fencing, satisfies the requirements of BMC 21.22. 5. This application for rezone of these two parcels from SF-2 to SF-3 has followed the process set forth in BMC 21.02.920. In order to qualify for approval, a rezone application must answer all of the following questions "yes": 1). Is the proposed rezone consistent with the Comprehensive Plan; Prelimmaw Plat/Rezone Hearing Examiner Holm (PL01-0057) Page -6- City of Bremerton BMC 21.02.090 defines a planning and zoning consistency under BMC. Regulations used to implement the Comprehensive Plan, including zoning, must be consistent with the plan. Each zone has a direct relationship to it's parent designation on the plan map. For the purposes of initial zoning and consideration of rezone requests, primary zones are considered to be consistent with their related plan designations. Those primary zones are listed in Figure 090, Title 21, Appendix, Page 7, of the BMC. This property has a Comprehensive Plan designation of LDR. According to Figure 090, the primary zones considered to be consistent with the LDR Comprehensive Plan designation are the following: SF-1, SF-2, SF-3, DR, LPO and PS. An upzone fo/- these parcels from SF-2 to SF-3 would remain consistent with the Comprehensive Plan designation for this property. In addition, other Comprehensive Plan goals for Bremerton's neighborhoods encourage the provision of small, private, affordable single-family homes, both in new subdivisions and as h-fill within existing neighborhoods. One of the Comprehensive Plan strategies for implementing the City's goals for housing in Bremerton is to encourage in-fill development and re-development of existing sites. This area of East Bremerton appears to be transitioning from larger lot single-family development to smaller lot single-family and multi- family development. This undeveloped land, as well as a large undeveloped parcel immediately to the east are proposed for more intense development closer to urban densities. An upzone of this parcel would be consistent with the goals of the Bremerton Comprehensive Plan to provide housing stock to meet the needs of a growing population for Bremerton. 2). Is the rezone justified for one or more of the following reasons: · it is in the public interest to approve the rezone to accommodate needed changes in the immediate vicinity or neighborhood; · it will correct a zone classification or boundary that was inappropriate when establishe& · it is a planned step in a phasingprocess to gradually bring zoning into consistency with the twenty year Comprehensive Plan when appropriate; · it willplace or remove an overlay zoning designation without affecting the underlying zoning. It is in the public interest to approve the rezone of these parcels to increase the density of development allowed in this area of East Bremerton. This upzone will facilitate an urbanization of the neighborhood and support the Growth Management Act's goal of population growth within City boundaries to reduce urban sprawl. The public, and specifically this neighborhood, will benefit by the development of this subdivision with a dedicated public road constructed to the City of Bremerton roadway standards. Garland Lane is presently a 40-foot easement that has been partially developed for ingress and egress, not only to the lots in this subdivision, but to many lots south of the parcels. All users of the easement will benefit by an upgrade of this access road to public road standards. The public will also benefit from wetland buffer protection established on this parcel. 3). Is there a public need for the proposed rezone that will clearly benefit the local neighborhood and/or the community of Bremerton. This proposed rezone will clearly benefit the local neighborhood and the community of Bremerton. Additional single-family housing stock will become available for residents of the City of Bremerton supporting Comprehensive Plan goals to encourage development of single-family homes within existing neighborhoods. In addition, this subdivision will be developed with an engineered stormwater management system which will help control stormwater flow affecting Preliminary PlaffRezone Hearing Examiner Holm (PLO 1-0057) Page -7- City of Bremerton properties in this neighborhood. Allowing approval of this rezone will facilitate the subdivision of the two parcels into smaller lots in a more typical urban subdivision. Under the SF-2 zoning, these parcels could be developed to a minimum lot size of 9,000 sq.fl, per lot, however, with this upzone the developer is offered a smaller minimum lot size of 5,000 sq.f~, to enhance aff'ordability and encourage higher densities through creative site planning. The neighborhood will also benefit from the landscaping required along the east and west sides of Garland Lane and fi.om a professionally engineered roadway and stormwater system creating an infrastructure that will benefit all easement users. City water, sewer and all utilities are available in the neighborhood and will not be degraded by the addition of 12 residential lots. A pedestrian pathway will be constructed in the southeast comer of the parcel to allow pedestrian access to adjoining open space to the east. All neighborhood users will benefit from that accessibility. 4). Are all essential public facilities and services available and adequate, or can be made available to serve the types and levels of development permitted in the requested zone. All essential public facilities and services are available and adequate to serve the type of development permitted in the requested zone. This property has been zoned SF-2 but has remained undeveloped. The SF-3 zone allows single unit dwellings in the typical urban subdivision and is suitable for areas served by public utilities, particularly public sewer. These two parcels have received a conditional water and sewer availability letter from the City of Bremerton stating that public water and sewer service are available in the vicinity and can be extended to serve the 12 lots created in this proposed subdivision. All other utilities are also available. The level of service for all utilities will not be degraded by the addition of 12 lots in the new SF-3 zone. The subdivision will provide on-site stormwater management through a detention pond system to be built on the southeast comer drainage lot. This stormwater management system will be owned by the homeowners association of the subdivision. A maintenance agreement will be signed with the City allowing inspection of the facilities. The property owners will have responsibility for maintenance and repair. The subdivision developer will improve Crarland Lane to conform to City of Bremerton roadway standards, for dedication as a public street. This upgrade of Garland Lane will benefit all easement users. 5). Will the area beingproposed for rezoning become part ora larger zoning district, or form a new district which will not be considered an isolated spot zone. This SF-3 zone is consistent with zoning in the neighborhood. Properties to the north are zoned Residential Medium Density (MF) which allows multiple unit dwellings and some small lot single unit clustered housing; property to the south is zoned Residential Low Density (SF-2); property to the east is also zoned SF-2, (but will be developed as a PUD) and property to the west is zoned Residential Low Density (SF-3). An upzone of these parcels to SF-3 remains consistent with the LDR Comprehensive Plan Designation. The rezone of the parcels to SF-3 is consistent with the intent of the zoning ordinance and does not constitute a spot zone. Since all questions included in the criteria of approval of BMC Section 21.02.920.(D) can be answered in the affirmative, this rezone should be approved. 6. This application also includes a request for approval of a preliminary plat to subdivide these two parcels into 12 residential lots. The parcels total 2.4 acres in size. A division into 12 Preliminary Plat/Rezone Hearing Examiner Holm (PL01-0057) Page -8- City of Bremerton residential lots, with a minimum lot size of 5,000 sq.t't., is allowed in the SF-3 zone. An approval of the rezone is required prior to approval of this preliminary plat application. 7. The city of Bremerton has not adopted a long subdivision ordinance. This preliminary plat application must satisfy the requirements of RCW 58.17.1 I0. Section (2) states as follows: A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other Fublic ~vays, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds and all other relevcmt facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) the public use and interest will be served by the platting of such subdivision and dedication. If it finds that the proposed subdivision and dedication make such appropriate provisions and that the public use and interest will be served, then the legislative body shall approve the proposed subdivision and dedication ..... A review of this subdivision application demonstrates that the proposed subdivision and street dedication makes appropriate provision for the public health, safety and general welfare by providing the following: (i) The preliminary plat makes provision for open spaces totaling 16.5% of the lot area. This open space is designated as the 12,783 sq.fL drainage lot located in the southeast comer of the two parcels and the streetscape plantings on the east and west side of Garland Lane. BMC 21.02.750 requires that any development having a total gross area greater than 1-acre shall dedicate a minimum of 15% of the total gross area of the development as common open space accessible to all owners or tenants of the development. The open space areas shall be provided for active as well as passive recreational activities, and for the preservation of existing natural amenities whenever possible. This subdivision application has proposed to construct a 4-foot wide pedestrian trail along the split rail fence protecting the wetland buffer in the southeast comer of the parcel. This pedestrian trial will be available to all residents of the subdivision for walking and for access to other open space areas on adjoining parcels. Since this parcel is being developed as an urban subdivision, the open space may include linear streetscapes, pedestrian corridors and areas reserved for stormwater retention, drainage or wetland protection. (BMC 21.02.070 -- Open Space Definition). (ii) This proposed preliminary plat makes appropriate provisions for drainage ways. The applicant has submitted, along with the preliminary site plan, a preliminary drainage and utility plan. This drainage plan describes a stormwater detention system which includes a detention pond area constructed in the southeast comer of the property. This detention pond area will be fenced with a chain-link security fence around the top of the pond's side slopes. The drainage Preliminary Plat/Rezone Hearing Examiner Holm (PLO 143057) Page -9- City of Bremerton 57 system will be owned by a homeowners association and a maintenance and operations agreement for the stormwater drainage facilities will be signed by the owner for the benefit of the City of Bremerton. EXHIBIT 35 is an example of the type of Maintenance and Operation Agreement required by the City of Bremerton Department of Public Works. (iii) This proposed subdivision makes appropriate provision for streets, roads, alleys or other public ways. This subdivision will be developed with a center roadway developed within an existing 40-foot access easement. This access easement serves not only the 12 lots in this subdivision, but also serves many properties to the south. A copy of the easement agreement has been included in the record as EXHIBIT 31. The Department of Engineering and Public Works has required the applicant to develop the first 300-feet of Garland Lane for dedication as a public road. The roadway will be developed to City of Bremerton roadway standards and dedicated to the City of Bremerton prior to approval of the final plat. The applicant has also agreed to sign a frontage improvement agreement for future improvements to Sylvan Way. This frontage improvement agreement will be recorded against all parcels in the plat. The improvements contemplated by the fi'ontage improvement agreement will include curb, gutter, sidewalk, street lighting and storm conveyance piping. The Department of Engineering and Public Works has also required the dedication of Garland Lane access along the plat frontage with Sylvan Way. (iv) This proposed subdivision makes appropriate provisions for transit stops. There is presently existing along Sylvan Way, on the north property line of these parcels, a Kitsap Transit stop which has been developed with a bus shelter. This transit shelter is located on the west side of Garland Lane where it intersects with Sylvan Way. The applicant has proposed construction of a sidewalk along Garland Lane on the west side of the street. This sidewalk will allow pedestrian connection from the subdivision to the transit stop on Sylvan Way. (v) This proposed subdivision makes appropriate provision for potable water supplies and sanitary waste disposal. The applicant has received from the City ofBremerton a water and sewer service availability letter dated December 10, 2001. The cost of extending the infrastructure for sewer and water service to this 12 lot subdivision will be borne by the developer. (vi) This proposed subdivision makes no provision for parks or playgrounds, but relies on the availability of public parks in the neighborhood. Public schools are also available within a few blocks of this proposed subdivision. A sidewalk will be constructed along the west side of Garland Lane to help assure safe walking conditions for students who only walk to and from school from this subdivision. A recreation trail has been provided for residents across the drainage lot on the southeast comer of the parcel. 8. Appropriate provisions having been made for open spaces, drainage ways, streets, transit Preliminary. Plat/Rezone Heating Examiner Holm (PLO 1-0057) Page - 10- City of B remerton stops, potable water supply, sanitary sewer service, recreational trails, schools and sidewalks, the public use and interest will be served by the platting of this subdivision and the dedication of Garland Lane as a public street. 9. This application for approval of the Garland Place Preliminary Plat should be approved with the following conditions to ensure compliance with applicable provisions of the BMC and the Comprehensive Plan: 1. Except as modified by these conditions of approval, the project shall be constructed in substantial conformance with the site plan date stamped March 8, 2002. 2. A recorded declaration and a plan for the operation and maintenance of all constructed drainage facilities shall be submitted and approved by the City Engineer prior to final plat approval. A binding water and sewer availability letter will be required prior to final plat approval. 3. Prior to final plat approval the applicant shall install a fire hydrant on site. The hydrant shall meet the requirements of the Bremerton Fire Department. A Storz adapter and marker are required. Verification of adequate fire flow must be approved by the Fire Department prior to final plat approval. Ali buildings in the subdivision must be identified with 6-inch address numbers to facilitate emergency services. 4. A pedestrian trail and split rail fence must be constructed in the southeast corner of the parcel as shown on the site plan, prior to final plat approval. Provisions for maintenance of the trail and fencing must be included in the landscaping plan submitted to the Director of Community Development. 5. The applicant shall submit a landscaping plan to the Director of Community Development for approval. Ali landscaping shown on the site plan must be planted, or bonded or secured by another performance assurance device, prior to final plat approval. The landscaping plan shall include provisions for maintenance and replacement of the landscaping planted on each side of Garland Lane. 6. Security fencing will be required around all detention pond facilities to provide for the public health and safety. 7. Garland Lane must be constructed to City of Bremerton roadway standards Preliminary Plat/Rezone Hearing Examiner Hotm (PLO 1-00573 Page - 1 1- City of Bremerton 5'7 for dedication as a public road. This dedication must be completed prior to approval of the final plat. The property owner must sign a frontage improvement agreement with the City of Bremerton, agreeing to participate in improvements planned on Sylvan Way. These improvements may include curb, gutter, sidewalks, street lighting and stormwater conveyance piping. This frontage improvement agreement must be recorded with the Kitsap County Auditor and will bind all parcels in the plat. 8. The southeast corner of the site plan, designated as the drainage lot, must be legally described in a sufficient manner to transfer ownership of the lot to a homeowners association which shall hold the lot in common ownership. All owners of lots in the subdivision must be members of this homeowners association. The association will have responsibility for maintenance and repair of the stormwater drainage system in the plat. A Declaration of Covenant associated with Maintenance and Operation of Stormwater Drainage Facilities from the City of Bremerton Public Works Department must be signed by the property owner prior to final plat approval. The City of Bremerton will not be responsible for ownership or maintenance of the drainage lot or stormwater facilities except as provided in that agreement. Legal documents transferring ownership of the drainage lot to the homeowners association shall be recorded prior to final plat approval. 9. All infrastructure and utilities constructed for this subdivision shall meet current City of Bremerton design and construction standards. 10. All access roads for this subdivision shall meet City of Bremerton roadway standards and Uniform Fire Code Section 902. The access road shall be designed with an emergency apparatus turnaround which has been approved by the Bremerton Fire Department prior to final plat approval. 11. A 50-foot wetland buffer shall be maintained in its natural condition without disturbance on the southeast corner of the parcel, in the area designated on the site plan. This wetland buffer will be a portion of the 50-foot buffer required to protect the Category Ill wetland on adjoining property. Construction fencing shah be installed during grading and construction for the drainage detention pond facilities located on the drainage lot to protect the wetland buffer from damage or encroachment. 12. This preliminary plat approval is contingent upon approval of a rezone of these parcels from SF-2 to SF-3 zoning. If the application for rezone is not approved, this application for approval of the Garland Place 12 lot subdivision must Preliminary Plat/Rezone Hearing Examiner Holm (PLO 1-00573 Page - 12- City of Bremerton be denied. 13. No regulated wetlands, streams and/or drainage courses have been identified on the project site, however, if through the course of work, regulated wetlands, streams and/or drainage courses are identified, the property owner must comply with the provisions of BMC Critical Area Ordinance (BMC 21.22). 14. Prior to final plat approval, legal documents shall be recorded describing the access easement to the drainage lot depicted in the southeast corner of the subdivision. The access easement shall be granted to the homeowners association and shall be subject to the terms of the Declaration of Covenant associated with the Maintenance and Operation of Stormwater Drainage Facilities required by the City Engineer. 15. The following setback and lot coverage information shall be noted on the final plat: minimum lot size 5,000 sq.ft.; maximum lot coverage for each lot 40%; minimum lot width for each lot 40-feet; maximum building height 30-feet; front yard setback 15-feet (20-feet to garage); side yard setback 5-feet; rear yard setback 15-feet. 16. Prior to any clearing or grading on the property, the applicant shall obtain a Forest Practices Permit from the Washington State Department of Natural Resources, or in the alternative, a letter from the Department of Natural Resources stating that no permit is required. 17. An engineered sediment and erosion control plan must be approved by the City Engineer prior to any on-site construction activity. 18. If during construction any artifacts are uncovered of significant historical/cultural resources, the applicant is required to notify the City of Bremerton Department of Community Development or the State Historic Preservation Office in Olympia, Washington, to determine if any modifications of this proposal will be required. 19. Any construction, clearing or grading activities occurring on this property shall not block access to Garland Lane or to the Kitsap Transit bus shelter on Sylvan Way. 20. To limit noise impacts on neighboring properties, outside construction activities at this site shall be limited to 7:00 a.m. to 7:00 p.m. weekdays, not Preliminary Plat/Rezone Heating Examiner t-loan tPL01-0057) Page - 13 - City of Bremerton including legal holidays, and 9:00 a.m. to 6:00 p.m. Saturdays, not including legal holidays. RECOMMENDATION It is recommended that this application for rezone from SF-2 to SF-3 be approved. It is also recommended that the Application for Approval of Preliminary Plat for Garland Place Subdivision be approved subject to the conditions listed above in Conclusion of Law 9. Dated this 31st day of May 2002 Robin Thomas Baker Interim Hearing Examiner Preliminary Plat/Rezone Hearing Examiner Hotm (PLO 1-0057) Page - 14- City of Bremerton AGENDA BILL BREMERTON CITY COUNCIL I. SUBJECT: Council Approval of Preliminary Plat FOR AGENDA OF: June 26, 2002 The Hearing Examiner has recommended approval of a Preliminary DEPT. OF ORIGIN: DCD Plat entitled "Tricom." A decision of the City Council is required ORIGINATOR: Chris Hu,qo, Di~CCt~'~ to approve the plat. DATE SUBMITTED: June 12, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: DCD Director:~~~~~ o Hearing Examiner Decision City Attorney~,'~..! ~ o Preliminary Plat City Clerk: ~.,~.~..~¥..~_ ~,~_.0_~._._,__~ o June 11 Fire Dept. Memo MAYOR .... ~~~UbI~CIL PRESIDENT ~~ ~~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The Hearing Examiner has recommended conditional approval of an eight-lot preliminary plat that was submitted by Louis Mentor on June 12, 2001. The site is located on the east side of Pine Road immediately south of the Tik Village Condominiums. The Hearing Examiner has recommended approval, subject to fourteen (14) conditions. The City procedural ordinance indicates that the Hearing Examiner decision constitutes a recommendation to the City Council, and that approval must be considered at a closed record decision hearing. NOTE: The applicant believes that conditions #7 and #8 as stated in the Hearing Examiner recommendation are inappropriate and should be modified. Staff concurs with the applicant and a copy of a memorandum from Scott Rappleye from the Fire Department is attached that addresses Condition #7. Staff and the applicant will provide additional input regarding modification of these conditions at the City Council meeting. 5. RECOMMENDATION' Move to either: 1) approve and adopt the hearing examiner's findings and recommendation; 2) modify and approve the findings and recommendation; 3) reject the hearing examiner's recommendation and deny the proposal as originally submitted; or 4) remand for a further hearing before the hearing examiner. 6. RESPONSIBLE OFFICIAL: Christopher R. Hugo ENFORCEMENT OFFICIAL: Christopher R. Hugo EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION PULLED~ TABLED__ APPROVED DISAPPROVED~ AMENDED~ COUNCIL DIRECTIVE: DATE: 8. AGENDA BILL NO.: (~c:~ - ~/~' 9. CLEARANCE COMMENTS: 10. IMPACT OF NON-PASSAGE: Approval of the plat will create eight building lots within the City. Failure to approve the Rezone and Preliminary Plat may be contrary to law and will deny the City of said eight lots and the resulting housing units. 11. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: The proposed rezone and preliminary plat will create no significant operational changes for the City. 12. RESEARCH SOURCES: Comprehensive Plan Zoning Ordinance State Subdivision Statute (RCW 58.17) File Site Visits OFFilIE OF THE CITY ATTOBNEY Memor dum Privileged and Confidential TO: City Council l~$I-' Roger Lubovich I:l'OIIl:Simon Stocker .~~.~ Procedure following Hearing Examiner's Recommendation pursuant to Chapter 2.13 BMC Bmo: June 20, 2002 I. Staff Report. Il. Presentation. A. Oral argument must be confined to the Hearing Examiner's record. B. Applicants have up to __ minutes [set by council] to present oral argument (may reserve time for rebuttal). C. Opponents have up to __ minutes [set by council] to present oral argument. III. Conclusions. A. The Council reviews the hearing examiner's recommendation under the following standards: 1. Recommendation based on substantial error. 2. Proceedings were materially affected by irregularities in procedure. 3. Recommendation unsupported by material and substantial evidence. 4. Recommendation is in conflict with the City's comprehensive plan. 5. Insufficient evidence presented as to the impact on the surrounding area (if applicable). IV. Decision. A. The Council may take any of the following actions: 1. Approve and adopt the heating examiner's findings and recommendation. 2. Modify and approve the findings and recommendation. MEMORANDUM: (Hearing Examiner Recommendation) June 20, 2002 Page: 2 3. Reject the heating examiner's findings and recommendation and deny the proposal as originally submitted based upon council findings. 4. Remand for a further hearing before the hearing examiner. B. The Council must make findings with its decision by either adopting or modifying the findings of the hearing examiner or by making its own findings. B~EN1ERION OffI~CE OF ~ I=I'i/-~ING ~ BU)LD)NG DE~ABmENT P~l~7 ~PLICA~ON FOR P~~Y ) ~~GS OF FACT PLAT ~PROV~ ~COM PLA~ ) CONCLU~O~ OF LAW ~P~C~: ~ ~OR ) ~ ~~A~ON ) FINDING~ OF FACT 1. Louis and Paulette Menior, Wendy biles, E.E. Wolfe, ~erry M, C_ffi~Ss and Betty C. Griggs are the le~l owners of property located at 3290 Pine Road in the city of Bremerton. This parcel is identit~ed by Assessor Aor, ount No. 4585-000=015-(}008 and is legally descn'bed as: ~n Vois~e 4 of plat~ Page 95. Recon~ of ~ Cm,,uy. lV~ desc~bed a~ foll~s: ~Begmn~g at the ,~tn~es~ ~ of sa~d £ot 15; then~ so, th 205 feet; t/~nce mz~t 200feet; thence north 205feet: thence ~ 20~ feet to the true po~ of beginning. 2. The subject parcel is located in the MF (Residential Medium Density Zone) and has a Comprehensive Plan desilpmtion ofHDR ~ Dena~ Residentinl). 3. Mr. Mentor has proposed an eight-lot plat for this parcet, with individual lots rangin~ in ~ from 4,382 sq. ~t. to 5,460 sq.~t. The minimum sin~e family rmi_a,~*l lot size s~ci~ed for the MF zone is 3,000 sq.ft. Ea~ of the eight lots in this "Tticom" plat is to be 50..feet in The mir~vm__ lot width for a single family re~den~ lot in the MF zone is 30-feet. 4. The MF zone is desiBned ~o maintnin existing are~ of multiple unit dv~eaings ~d to provide for new dm~elopmc, nt of needed housin~ witl~ the medhnn density level ($ to 18 dwelling units per acre). The maximum lot cover~e for lots developed in this zone is 4O%. The maximum buildi~ height in thh zone i~ 40=feet. The r~luired front yard s~'thnck is lO-feet to the front of the house, and 20-feet ~o the ~ ora ~ conmmcted on a lot. A mininnan ~ide yard of 5-feet is required and a rear yard of 20-feet. The building envelopes desi~ on the site plan meet those ym'd standards. 5. The project site is presently developed with two single family dwellings and one detact~ retained as a prat of the subdivision; that home will be moved to Lot 4. Th~ s~ond home and the ~ ~o~.oo~'/) Pn~e -1- C. Jty of Bremerton 6. A 20-foot private paved road will to pwvide access to each of the lots within ~ subdivis/on. This pdv~ road will connect to Pine Road, ~ ~ity-~ collector ro~d which abuts the property on the west. An improvemem agreement for fiRm'e front~l~ imp~ alon~ Pine Road will be s/~ed by the developer. A 7.5-foot easemem for utilities will I~ dedicated ~lon~ the lot frontages on o~ side of the new meet. 7. Each residential lot must be developed w/th two off-meet patldn~ spac~ for mc.h six,lc family residence. No on-street p~rkin8 will b~ allow~l. This small parcel is located in an area whic~h Ires been intensely developed with multi- family housing To the north ar~ tl~ T~ V'dla~ c~lo~ and to fl~ south and e~t xre the 9. The Ciw of Bremerton Public Works ~ has advised Mr. Mentor tim water services is conditionally available for these lots. The extens/on of service will requ/m an 8-/nch system pressureis estimated to be 70 ps/. Mr. Mentor will be requiredto submit plansand specifications for the water ma/n extem/on which have been s~mped by a profmsio~l ez~/neer. The City Engineering DefmrUnent will review the plans prior to issuing the Public Works Project Permit required before commencement ofcomtru0tion. The Public Works Department has also notified Mr. Mentor that sewer service is conditionally ava/lnble for his 8-lot plat Mr. Mentor will be required to bu/Id & main extension il-om the existing sewer main in the Pine Road right-of-way extending to each proposed lot. Mr. Mentor will be required to submit plans and s0ecificationa for the sewer main extension which have been stamped by a professional ensneer, to the City ~~ IX. pamnem for r~view. City approval of those engineered plans is required before muance of the Public Works Projea Permit. 10. Stormwnter rnnn~ement will be required. An engimered drainage plan must be subn/rted ~o the Public Works Department prior to beginning conmuction on the project. This eng/neered draimge plan must comply with the requir~ of the Sto. ai,vater Management Manual for Pu~ Sound B~in ~ with ~11 r~~ of the City ofBr~maton Stormw~ur Program. Tempor~y erosion and sediment control thn:m~ be~t n~na~ prances must be uti]iz~ on ~I1 buRdia$ s~tes. Mr. lvi~tor h~s l~'opo~d · ~to, mw~ter co,,~ol ~ ~ will u~ize bioliltrafion swai~ and iniiltratioo trem:hm aion~ tl~ lot ~ 11. A review of the project ~ by City pemm~ Ms reve~l~ no wetlands on the parcel. Plat Hearing Examiner Ps~e -2- City afBr~rton 12. A SEPA Detet~nn~ion of Nonsigni~cance (DNS} was issued for this project on Jarmaty 1 a, 2002. No commema were received and no appeal was aled by the Febru~ 4, 2002 appeal d_,,~,_dline. That ~T~PA DNS is now final. Element B of the Compreitensive Plan, Goal 4D. states: Inord~rtoac. hiema~~l of home o**wer~p, a greater ~ will be ploced on the provisi~ of zmall, private neighborhoods. These small lot single-family residences help meet that goal. 13. This small parcel measures .94 acres in size. Each of the proposed eight lots will be developed with a ~rml! 8ingle ~ hOl{~ of appfoxJm~e{y 1,500 sq.R. with a two car garage. Mr. Mentor testified at the heari~ that he plans to build homes in the tar8~ price ran&e of $125,000 to $t40,000. He will be Un'getiu8 young cou{~ ns potmtiai purctmsers for the homes in this subdivision. 14. Mr. Mentor agreed to provide a sidewalk for use b,/residaus of his subdivision. That sidewalk must be consUucted to City of Bremenon current sidewaflc standards. Those standards 15. There is no common open space set aside within tiffs subdivisiott Mr. Mentor provided a list of recreational oppommit/ea near thi~ parcel [F_J/H/B/T $I]. That Fist includes Blueberry (1 ½ blocks from the site), Lebo field/Lions tieid (6 blocks from the site), Silvan Baptist Church (3 blocks fi'om the site) which has outdoor baaketba~ baseball field and playgrmmd, Nazarme Church (7 blocks from the site) which includes picnic and playground area, View Ridge Grade School (7 blocks from the site) which has outdoor physrmmd, Bremerton l,,,,i,,r High (7 blocks from the site) and Annin Iahr School (4 blocks fi'om the site) also has outdoor playgroumt. Residents of the new subdivision will have access to these public parks for their recreational use. 16. There arc no sidewalks along Pine Road abutlinl{ the Mentor property. However, Mr. Mentor has agreed to participate in future street tonta&e improvenents and join in an LID for sidewalks when proposed for Pine Road. This obligation will be binding on future property owners in the plat. 17. The City of Bremerton Fire Depamnent reviewed this proposed plat. lru'e sprinklers will be required for all homes built in this sulxlivision. A fire hydrant which provides adequate fire flow must be instatied near tJ~e entrance to the property prior to besinuin$ construction of homes. The [rue Department must approve the location and installation of the fire hydrant and veriPy fn'e flow prior to issuance ofhifldin8 permits for these lots. The F'tre Department has also required the east end of the road. This redesign must be approved by the lrwe Depamnmt prio~ to besinning construction at thc site. V'mible address numbers will be required on all residences and a private m'eet sign must be erected to idemify the resideatial ~ ~ for ~ 18. Water and sewer service will be provided by the City of Bremetmn- Residences 1o~ in this subdivision will be entitled to send flteir children m the City of Bremenon public schools. All ,~r,i~,,,- ~ elat Hearing Examiner ~ (PLowboy7) Page -3- City of Bremenon utilities are presently available for servion' g this plat, however, the cost ofinfrastmctm~ extension will be borne by the property owner. ! 9. Notice of the public he~rin~ wu mailed to property owners within 300-f~t of the subject parcel on February S, 2002 by J'un Sv~mson of the ~ ofConmmnity Develqmaent. Mr. Svensson also posted m~ice of the public hearing at 3290 Pine Road on February g, 2002. A Noiice of Public Hearin~ w~s pub~ in the Bremerion Sun at the reque~ of Mr. Sv~nsso~ A public hearin~ w~ held in thh m~tter on Febrmuy 20, 2002. Addition~ ~ was required from the app[icaat and the hearing w~ continued to F~tmmry 27, 2002. The record r~mained ol~m for comments from the Public Works ~ and Mr. ~ until March 25, 2002. CONCLUSIONS OF LAW 1. Louis and Paulette Mentor, Wendy Miles, E.E. Wolfe, Jerry M Griggs and Betty C. G-ri~s Louis Mentor ar~ the legal owners of ~ located at 3290 Pine Ro~i in the city of BremeCum~ on which he seeks approval of a pre3hnimu~ plat to develop m ~ht-lot subdivi~on for sinsie-family homes. 2. Mr. Mentor's application for prdiminm~ plat approval is properb/b~or~ the Hearing Examiner for recommendation ~o the City Council pursua~ to Bn~erton Ordimnce 4T78. Bremerton Muni~ Code (BMC) 2.13.070 ~ives the Hesrin~ F.0mminer jurimficfion to comtuct the open record pre-decision [:mblic ~ requir~ by BMC code section 21.02.85(} snd prepare findin~ and conclusions for ~he City Council's consideratiov~ A subdivision preliminary plat decision is one action included umi~r BMC 21.02.850. 3. This proposed t~at is consisUmt with the requinmm~ of the Bremer~m Mm~Vai Zonins C~ ~ w~ ~ ~ B~ou ~~e P~ 4. ~ l~ ~ ~ ~ of~ ~c ~ ~ ~s ~. 5. ~ C~ ofBr~on ~ n~ ~ a 1o~ ~ ~. ~ ~~on ~ m~ ~ r~~ ofR~ ~8.17.110 w~ ~ ~ fo~: ~~ It ~ ~~: (a) If ~~~ ~ ~ ~ ~, ~ ~ ~it~ to, ~ ~b~c ~ ~, ~ ~~, f~ ~ ~, w~ ~p~, ~~ ~ ~ ~ r~ p~ ~ ~ H~ring Ex~n~r City of Breme~ou adequate provisions for private streets which will pmvicle access for each of the eight lots to Pine Road right, f-way. This 20-foot access drive will be paved and will be consma:ted to City of Bremenon road standarda. The road will be redesigned to meet the requiremema of the City of Bremerton Fire ~~nt f~r tummxxu~ aom~ for emergmwy v~xicAe~. Mr. Mentor has agreed to participate in fi~ntage improvements alon8 Pine Road aa required by th~ City of Bremerton, and to ~~ ia any future LID proposed to constru~ sid~-~ along Pine Road. Transit StOl~ for public ~rt~on are available along Pine Road. 7. This plat baa made an appropriate provision for potable wa~ mppli~ and diapo~ of sanitary waate. The~ sta-vicea will be provided by the City ofBrem~rton aRer 0xtenaion connections are provided by the develol~. The City of Bremerton has required Mr. 1Vamtor to provide an eagineered stormwa~ ~ plan which me~ City raquiremm~ for compliance with the Departmem ofEcolo~ Stommator Mana~mem Manual for the Pu~ Sound Basin, and the Stormwater Management Program adopted by the City ofBremerto~ Bezt mamg~nent practices will be required for temporary exosion and sediment control on all Ixdlding ~. 8. This plat does not include any common open spac~ areaa, parka, r~a'eation areas, or playground~ within the subdiv~ott Mr. Mentor has provided a I~t of parka and playgrounds in the neighborhood which will be acc, eazihle to reaideaxta of this plat. Th~'e ia no additional space available for pocket parks or other open space in thia plat, if it ia develo~ aa a ~-lot plat. Mr. Mentor testified that it was his goal to provide affordable housing with small single-family residences to provide some choice of housing in tl~ nei~ other than the mull-family apartment buildings already developed on surrounding properties. Mr. Mentor baa agreed to consmact a sidewalk along one side of the private access road, to separate pedestrians from the driving lane as they access lxansit stopa and other pedestrian activity on Pine Road. Several schools ate located close to thia subdivision and this sidewalk w~l help assure safe walking conditions for students who only walk to and from school. This private road wal be paved and maimained as a private road for the exclusive use of residents in the subdivision. The subdivision will be fenced off f~om adjoining properties on the north, south and east property lines. Small eont and rear yards will be available to residents of each of these lots for 8ardening and Plat I-Im~g Hyalmin~ Page -5- City of Bremarton 9. BMC 21.02.700 (b) grants the City Council the authority to require ~ in a residential development of 1 or 2 unit muctur~s. Although landscaping provisions are not required in ail such developments, it is within the discretion ofthe City Coundl to requ/re landscapix~. This subdivision makes no provision for open space or f~r ptrk, ~ or other recreation area. Lafldsca~ on these lots could provide a visual arid physical separation between resideatisI use of the lots in this plat. In Icklifio~, landscaping could be used to ~ unify this 10. The public use and intermt will I~ sented by the plattiag of this subdivLsion ~s it will provide affo~ single-family hou~ng to serv8 tl~ growing ae~ls ofthe City of Bre~-rto~ 11. BMC 21.02.670 (A) seis the minimum off-sireet park~ ~~ ~r ~~ ~ in ~he MF zone. Figure 670(A) dgsigm~ that ali single-family residem~ mu~ provid~ at l~st two off-~ paddns sp~ces per dweili~ unit. The buildi~ envdope on lt~ site plan fx:n* the Tficom plat deline, ues a 40-foot x 50=foot l:xzildin~ envelope available on-each lot. The ~MI site plan must designate the location of park~ spaces allocated for each ~ unit. No parking M31 be allowed on the street. 12. A review of this plat and the recommendations for conditions suimfitt~ by the Department of Ensineer~ and Public Works and fl~e Bremerton F'tre Depanm~ and the Department of CommimiV] Devdopmmt demonstra~ that this prefimim~ plat c~n be devdoped consistent with the requirunc~ of the Bremeflon Municipg Code and file Bremerton Comprehensive Plan if conditions of approval are added w insure compliance ~ those requiremems. 13. This pr 'eluninary plat w~l comply with ~he requirements of the Bremerton Municipal Code, the Brem~ton Comprcq,.ensive PLM~ and RCW 58.17.110 provided the foHowin~ conditions are attached to that approval: 1. The applicant sM comply with .n coadiflom specified in the conditional water and sewer svMhbJlity letter from ~e City ofBremerton Publk Works nd Utiliti~ Depm'm~t dated December S, 2000. A ~ W~eit~ Project Permit shfll be obtained from the City or BrmafU~ hblic Woda l)ei~rtmem prior to commeucinS eoastru~u at the site~ Complimsce with the City of Bremerton Storm M,usgement Propum is required. The sppliunt sM'obtain PuMic Works DeparUnmt approval of a temperary erosion ~nd sediment control p~n before commmcement of mty constmmou on rbe site. 2. The devdopmeat of the proposed pht md conuection to tim C~gy M'Bremerton utility s~stem sM be comldmd ia tccordmtce with the Depflment of Ut~ies and Public Worb ~pment nd Cosstrueflon Smadsrds, APWA,'DLT specificstioas, AWWA stsndmrds mai TMe IS of the BMC. Al ~rlvtty sewer services sktil hve a ekeek valve instJtlbd ~d suintmbed by the m~. The -~,~- ~ P~t ~ Ex~m~r Mmu= CPLOt~O~7) Pase -6- City of Bremerton check valve shnli be installed within S=feet of the building and be accessa"ole for maintenance. A maintenance pLan for the sewer system in the subdivision shall be provided by the applicant to the City of Bremerton Department of Public WoFks. This plan shall include provisions for the mainteaance and repair of the sewer check valve foF etch residence and a provision for annul reporting of maintenance and repairs to the City of ~ Department of PubGc Works. Thb pith shall also include a provhJon allowin~ City ofBremerton personnd to make repairs to the sewer systtm located on the individual lots in the event of an emergency, or if the private owner fab to properly mahtain the system. The c~t of any emergency maintenance and repair by the City of Bremertou will be charged to the individual property owner, who win be required to reimburse the City of Hrmerton for those servicer. The sewer he maintenance qreement provisions shall be binding on aG subsequent property owners or lots in this subdivision. Tbb agreement shall be siKned by the applicant prior to approval of the final plat and shall be noted on the final Idac 3. The property owner is required to grant to the City ofBremerton a 7~-foot easement for utilities along lot frontages in tkis subdivision in accordance with City of Br~nerton roadway stindanJL 4. The property owner has agreed to enter into an improvements agreement with the City of Bremerton for future frontage improvements along Pine Road. The property owner has agreed to participate in a future LID for sidewalks along Pine Road if one is proposed. This agreement shall be noted on the final plat. All stormwater, water service, sewer service, utilities or road improvements to be constructed in this plat must be bonded for 1~0% of the estimated construction costs prior to final plat approval. Ail applicable requirementn of the Department of Engineering and Public Works shah be complied with, inehdin~ but not #ma_ed to the conditions specified in the presubmittal conference conducted on November 22, 2000. They address stormwater, provision of utilities, the 7.S-foot utility easemmt, and agreemmt regardini future frontage improvements on 1Nut Road and constructing or bonding required for improvements prior to final plat approval. 6. The final site plan sM include the delineation of two off-street parkisq spaces per residential unit on each lot developed in this subdivision. Notification that no on-street parking will be allowed shall be noted on the face of the plat. 7. All applicable requiruneuts of the Bremeflon Fire Department sd be eomplied with, including but not limited to conditions speeified in the prembatittll conference conducted on November 22, 2000. Those provisions include: 1. the requiremmt for fire sprinklers for each of the houses in this sabdivJsion; 2. require the property owuer to provide adequate fire flow to the prupet~ tad install a fire hydrant near the entrance of the private road onto Pine Road; 3. provide Fire Department access with · turnaround at IS0=feet east of Pine Road between Lots 4 and S; 4. the pm~ owner shall provide visible address ~ (PL0t.O03'/) P~e -7- City of Breme~on numbers on each house for emergency identification; S. the proper~ owuer shall provide a street sign at the intersection of Pine Road and the private access road to clearly identify residential sddruses on this newly created sweet. 8. The property owner has agreed to construct · sidewalk along one side of the private r~ad in this subdivision to provide for pedestrian safety, especially for school children walking to and from school from this mbdivJsion. This sidewalk will be constructed according to the City of Branerton construction standards and will be a concrete sJdewalk separated from the driving lane by curbing. TMs sidewalk shall be construcUd before final plat approval. 9. Ail proposals or the applicant shall be considered mdb or approval unless such propoub are in cenflict with the provJsiom of the BMC. 1o. The property owner must provide a landscaping plan for review and approval by the DirectoF of Community DeveLopment prior to the issuance of · building p4~ni~ This Ludsc~pJng phn must include hndsenpin~ which hdudes shrubs or ~ OF · combiufioa OF shrubs -nd ~rees along the north, south and eutern property fence lines~ to proq~e t visual septroflon between the mdti-rmnii~ uses on surTouudin$ prop ~er~,__ iud ,he single-family utes or properties within this subdivision- The landscapin$ plan slmil be drawn to scale and shall indicate existing property abes, trees, fences and other structures. The proposed ldantinp should he identified by common nme, caliper and size, and the einimum heigh¢ of specimens to be ptanmL This landscape plan must include · provision that ~n trees, shrubs and otheF landsenphg shall be maintained in · healthy growbg coudition and the plantinf area shah maintained rensouaMy free of weeds nd trash. All subsequent property owners of lots in thb subdivision will be bound by the terms of the landscaping plan. This agreement shall be noted on the face OF the final plat. 11. All outside lighting ins·aged in the subdivision shall he selected and Id·ced so that glare produced by any light source does not el·end to adjacent properties or to the public right-or-way. 12. To limit noise impacts oa neighborins properti~ outside constructim sctiviti~ at this site shaft be linlKed to 7:00 a.m. to 7:00 p.m. weekdays, Mt including legal holidays, and 9:00 a.m. to 6:00 p.m. Saturdays, not including legal hdidayL 13. This preliminary plat approval is based on the site plan dated Mareh 7, 2000 and received by the Bremerton Building Deportment on June 12, 2001 as modified by condition- of approval ia this recommendation- 14. The foilowinf setbmck smd lot coverqe information shall be noted on the r~ plat: Maxim-m Lot ~wcrqe: 40% Front Setback: 10-feet (20-feet 81r1~) Side Setlmck: S-feet Sahck: 20-feet RECOMMF. NDATION Dated this 29~ day of May, 2002 Robb3 Thomas lhlmr ='rrioom" ~ Iht Hearing Examiner (PLo ~ -0o3'/3 Pa~ -9- City of B remerton Fire Marshal's Office Scott Rappleye, Fire Marshal Te~360-478-5384 srappleye~ci.bremerton.wa.us ~=ax 360-478-7257 817 Pacific Avenue BrerneHon, WA 98337 June 11, 2002 Lois Mentor is doing a short plat in east Bremerton. I listed my conditions and Mr. Mentor addressed them all. We had an agreement with him regarding all the fire codes requirements. At some point and for some reason this went to the hearing examiner and got very distorted. What is being asked of Mr. Mentor is unreasonable and in excess of the fire code. 1) The code requires a turn around, if a dead end is over 150 feet in length. Mr: Mentor made the road 149 feet in length, thereby not needing a turn around. This meets the intent of the code and we see no reason to make him put in a turn around. 2) The fire code requires fire flow and fire hydrants to be installed for all new construction, if they don't already exist. If there is no hydrant coverage we allow people the option of spdnklerincj the buildings. There is no requirement for sprinklers in these buildings if fire flow is available. ~REMERTON ~U!LOING r'jE~ART~ENT AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Concession Agreement FOR AGENDA OF: June/lq'& 26, 2002 Between the City of Bremerton and ORIGINATING DEPT: 'Parks & Recreation Silverdale Ice Arena, Inc. ORIGINATOR: Jim Spencer, Director DATE SUBMITTED: June 11, 2002 2. CLEARANCES' ~___._2._.~EXHIBITS: (Comment on back if ~.,.~s~ City Attorne~,9(rl'--ff_.....~_ ~ Concession Agreement between the City of ."-~/,~/~ [..,...7~-.......----~/ Bremerton and Silverdale Ice Arena, Inc. Fiscal & Budget Committee: ,ff/ff.~' ~ ff * Letter of support from the Kitsap Family YMCA /" /~ / * Letter from National Parks Service dated May 14, Operations Committee: ,// ENDORSEMENT INFORMA~TIO .N. · APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR: -,' ........ : -;~: ........ i::-~i COUNCIL PRESIDENT: 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: Iq0110bl TO BE Pl/~D£ 0N 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. _ ,,z ,,, s',5 .......... , (, 9. RESPONSIBLE OFFICIAL: Jim Spencer, Director ENFORCEMENT OFFICIAL: Jim Spencer, Director EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED AMENDED COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL#: _ 0~--/!g 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 6/26/2002 CONCESSION AGREEMENT BETWEEN CITY OF BREMERTON AND SILVER_DALE BREMERTON ICE ARENA, INC. DRAFT 6/26/2002 TABLE OF CONTENTS 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. ! 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 .................................................................................................................... l 0 4.9 Hazardous Substances ............................................................................................. 10 CONCESSION AGREEMENT i DRAFT 6/26/2002 ' 4.9.1 Definition ......................................................................................................... 10 4.9.2 Information ...................................................................................................... 10 4.9.3 Indenmification ................................................................................................ 10 4.10 Risk of Loss .......................................................................................................... 11 ARTICLE 5. DESIGN & CONSTRUCTION OF PREMISES ........................................ 11 5.1 Design ..................................................................................................................... 11 5.2 Building & Site Plans .............................................................................................. 11 5.3 Construction/Site Work/Fencing ............................................................................ 11 5.4 Construction Deadlines ........................................................................................... 12 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 .................................................................................................................. 13 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 ................................................................... 15 6.5.1 Notice of Default .............................................................................................. 15 6.5.2 Termination for Monetary Default ................................................................... 15 6.5.3 Termination for Non-Monetary Default .......................................................... 15 6.5.4 Termination due to Bankruptcy ....................................................................... 15 6.6 Right to Assign ....................................................................................................... 16 6.7 Disposition of Insurance ......................................................................................... 16 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 .................................................................................................................. 17 6.12 Lenders Change in Loan Terms ........................................................................... 17 ARTICLE 7. TERMINATION ......................................................................................... 17 7.1 Failure to Perform ................................................................................................... 17 7.1.1 Obligation to Perform ...................................................................................... 17 7.1.2 Payments to Other Parties ................................................................................ 17 7.2 Default and Termination ......................................................................................... 17 7.2.1 CITY's Default ................................................................................................ 18 7.2.2 CONCESSIONAIRE's Default ....................................................................... 18 7.2.3 Default for Other Cause ................................................................................... 18 7.2.4 Bankruptcy ...................................................................................................... 19 7.3 Remedies Are Cumulative ...................................................................................... 19 7.4 Destruction of Premises & Use of Insurance Proceeds .......................................... 19 7.5 Duties upon Termination ........................................................................................ 19 7.6 Eminent Domain ..................................................................................................... 19 7.6.1 Rights of Termination ...................................................................................... 19 7.6.2 Non-Termination .............................................................................................. 20 CONCESSION AGREEMENT ii DRAFT 6/26/2002 ' 7.6.3 Compensation .................................................................................................. 20 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 ........................................................................ 21 8.1.3 No Joint Venture/Partnership ........................................................................... 21 8.1.4 City Administration of Agreement .................................................................. 21 8.2 Notices .................................................................................................................... 21 8.3 Reports & Information ............................................................................................ 22 8.4 Permits, Licenses, Taxes, & Fees ........................................................................... 22 8.4.1 Permits, Licenses, & Other Documents ........................................................... 22 8.4.2 Taxes & Fees .................................................................................................... 22 8.5 Insurance ................................................................................................................. 22 8.5.1 Fire, Earthquake, & Casualty Insurance .......~ .................................................. 22 8.5.2 Liability Insurance ........................................................................................... 22 8.5.3 Release and Waiver of Subrogation ................................................................. 23 8.6 Hold Harmless, Indemnification, & Industrial Insurance ....................................... 23 8.6.1 Hold Harmless & Indemnification ................................................................... 23 8.6.2 Industrial Insurance .......................................................................................... 24 8.7 Successors & Assigns ............................................................................................. 24 8.8 Compliance with Laws ........................................................................................... 24 8.9 Nondiscrimination ................................................................................................... 25 8.10 Choice of Law & Venue ....................................................................................... 25 8.11 Costs & Attorneys' Fees ....................................................................................... 25 8.12 Modification .......................................................................................................... 25 8.13 Change in Law/Renegotiation ............................................................................... 25 8.14 Force Majeure ....................................................................................................... 25 8.15 Waiver ................................................................................................................... 26 8.16 Illegal Provisions - Severability ............................................................................ 26 8.17 Article Headings, Gender, & Number .................................................................. 26 8.18 Entire Agreement .................................................................................................. 26 8.19 Counterparts .......................................................................................................... 26 8.20 Recording .............................................................................................................. 26 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 iii DRAFT 6/26/2002 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 E!LVEP. DALE BREMERTON 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 formed 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 fight 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 who provides the CONCESSIONAIRE= or successor or assign approved by the CITY, financing, re-financing, credit lines or equipment leases, for the development and ongoing operations of the improvements and business operations will require this CONCESSION AGREEMENT Page 1 DRAFT 6/26/2002 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, the term "CONCESSIONAIRE" shall also mean successors or assigns of CONCESSIONAIRE as approved by the CITY; 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 rights as set forth in Article 6. The common address of the Premises is Homer Jones Bremerton WA, 98310. CONCESSION AGREEMENT Page DRAFT 6/26/2002 ' If in the future, during the term of this concession, a piece of property of 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 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 written 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 four (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 l 0 year term exercised by CONCESSIONAIRE, which acceptance will not be unreasonably denied. To execute an option for renewal, the CONCESSIONAIRE, not CONCESSION AGREEMENT Page 3 DRAFT 6/26/2002 more than 180 days and not less than 60 days prior to the expiration of the term, shall give written notice to the CITY that the CONCESSIONAIRE is exercising the CONCESSIONAIRE's option for an additional ten (10) year term. The 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. CONCESSION AGREEMENT Page 4 DRAFT 6/26/2002 ' 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 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 CONCESSIONAIRE 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 tlxe 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, CONCESSION AGREEMENT Page 5 DRAFT 6/26/2002 guests, or invitees to be supervised. The provisions for mutual indemnity, hold harmless, and liability insurance pursuant to Articles 8.5 & 8.6 herein apply during Premises use by the CITY. 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. The CITY's use shall be during normal operating hours of the facility, unless otherwise agreed 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 right 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, }[Zinter, and Spring 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, but not limited to, ice sports, fitness and athletic equipment, soap, shampoo, and similar shower supplies, and clothing related to ice arena and fitness pursuits. This includes hiring vendors and/or sub-concessions of interior space of the CONCESSION AGREEMENT Page 6 DRAFT 6/26/2002 ' indoor ice arena facility. CONCESSIONAIRE agrees that no alcohol will be sold or consumed on the premises. 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 CONC'ESSIONAIRE 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 fight 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. Except in an emergency, 24 hours notice shall be given by the CITY before entry by the CITY into proprietary areas of the facility. 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 CONCESSION AGREEMENT Page 7 DRAFT 6/26/2002 ' board of health, or which shall be contrary to the laws, rules or regulations of any federal, state or municipal authority. CONCESSIONAIRE shall allow the Bremerton-Kitsap County Health Department to make regular and ordinary inspections of the Premises as said health department may deem proper. 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, walls, 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, following a notice of default and opportunity to cure as provided for in Articles 6 and 7, 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 Landsca£ing 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, employees, 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, CONCESSION AGREEMENT Page 8 DRAFT 6/26/2002 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 within fifteen (15) days after delivery of a statement for 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 by the CITY at its cost and expense. 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. 7,4Iterations of Improvements after Construction After such time as the Improvements have been completed and accepted as defined above, the CONCESSIONAIRE shall not make any material 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. CONCESSION AGREEMENT Page 9 DRAFT 6/26/2002 4.8 Parking The CONCESSIONAIRE shall develop parking on the real property described in Exhibit A providing a minimum of 155 vehicle parking spaces for CONCESSIONAIRE's non-exclusive use in connection with the Premises, as identified more particularly described in Exhibit B. CITY may use this parking lot for activities of thc CITY or its 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 Inform ation 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 and/or remediation and charge CONCESSIONAIRE the costs thereof. For non- emergency cleanup and/or remediation, prior to the CITY exercising its right to cleanup and/or remediation on the Premises, the parties will mutually agree upon a consultant for determining the method of cleanup and/or remediation. 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 EFFECTWE DATE of this Agreement; or CONCESSION AGREEMENT Page I0 DRAFT 6/26/2002 (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 All 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 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 right 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 fight to approve the final building and site plans, which approval shall not be unreasonably withheld. 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. CONCESSION AGREEMENT Page l l DRAFT 6/26/2002 ' 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 grading 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 within 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. 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 of Bremerton, 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. CONCESSION AGREEMENT Page 12 DRAFT 6/26/2002 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 without releasing CONCESSIONAIRE from its obligations hereunder, require CONCESSIONAIRE to post security in form and amount reasonably 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 assignment 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 CONCESSION AGREEMENT Page 13 DRAFT 6/26/2002 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 for CONCESSIONAIRE and operate said Collateral; and/or e. Appoint a receiver. f. All other rights and remedies at law or in equity. 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 t~,eCONCESSIONAIRE's right to renew and extend the terms of this Agreement as set fo~h F~erein. 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. CONCESSION AGREEMENT Page 14 DRAFT 6/26/2002 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 terminate, 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 Termination for Monetary Default If the notice of default given by CITY to lender relates to a monetary default and CONCESSIONAIRE has not cured such monetary default within 30 days after lender 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 if such non-monetary default is not cured by either CONCESSIONAIRE or lender within sixty (60) days after lender receives notice of default.mO, es~. 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 CONCESSION ,AGREEMENT Page 15 DRAFT 6/26/2002 CONCESSIONAIRE as provided herein, except that lender shall not be required to cure any defaults relating to solvency of CONCESSIONAI1LE. 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, 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. CONCESSION AGREEMENT Page 16 DRAFT 6/26/2002 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. 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 1½ 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: CONCESSION AGREEMENT Page 17 DRAFT 6/26/2002 ' 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 thereatter diligently pursues completion and completes performance within a reasonable time. 7.2.2 CONCESSIONAIRE's Default any one or more of the following events constitutes a default under this Agreement by CONCESSIONAIRE: (1) CONCESSIONAIRE shall be in default of the performance of any covenants, conditions, or provisions of this Agreement, other than the covenants for the payment of consideration required by this Agreement, where such failure continues 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 assigmnent 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 concessioned 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. The CITY's right to terminate pursuant to this Article for failure of CONSCESSIONAIRE to cure a default is subject to the lender's right to cure pursuant to Articles 6.5.2 and 6.5.3. Z2.$ 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. CONCESSION AGREEMENT Page 18 DRAFT 6/26/2002 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. 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 rights of lender as provided in this Agreement in the event of termination for default. 7.6 Eminent Domain The following rules shall govern the rights 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 right 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 rights of CONCESSION AGREEMENT Page 19 DRAFT 6/26/2002 eminent domain, a fair value shall be placed on this Agreement as if it had not been terminated 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 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 8.1.1 CONCESSION,lIRE 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 o f the CITY. No agent, employee, scmant, or representative o f 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. CONCESSION AGREEMENT Page 20 DRAFT 6/26/2002 · &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. & l.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 Administration 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 will be effective upon the earlier of personal delivery or three days after being mailed by certified mail, return receipt requested, addressed to CONCESSIONAIRE or to CITY at the address for that party designated herein. Either party may specify a different address for notice purposes by written notice to the other, except that CITY may in any event use the Premises as CONCESSIONAIRE's address for notice purposes. Each of the below noted addressees shall be responsible for notifying the other addressees of any changes of address and all notices will be effective when delivered to the last known address provided by said addressee. All notices shall be delivered to the following addresses: CITY-Address CONCES SIONAIRE-Addr-ess City of Bremerton ~Bremerton Ice Arena, Inc. Attn: Director of Parks and Recreation Attn: Greg Meakin, President 680 Lebo Boulevard P.O. Box 1044--3944 Bremerton, WA 98310 ~Bremerton, WA 98337-14 LENDER Charles C. Haselwood Joanne L. Haselwood P.O. Box 4999 Bremerton, WA 98312 With a copy to: Gary T. Chrey Shiers Chrey Cox Digiovanni & Zak, LLP 600 Kitsap Street, Suite 202 Port Orchard, WA 98366 CONCESSION AGREEMENT Page 21 DRAFT 6/26/2002 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 8.4.1 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 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. &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") CONCESSION AGREEMENT Page 22 DRAFT 6/26/2002 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. & 5.3 Release and Waiver of Subrogation Any policy of insurance carded 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 carder 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 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. CONCESSION AGREEMENT Page 23 DRAFT 6/26/2002 & 6. 2 Industrial Insuran ce 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, which consent shall not be unreasonably withheld. 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, which approval shall not be unreasonably withheld. 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 CONCESSIONAIt~ 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 CONCESSIONAII~ 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 federal, state and local policies to ensure equal employment opportunity based on ability and fitness to all persons regardless of race, creed, color, national origin, religion, sex, physical handicaps or age. The 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 CONCESSION AGREEMENT Page 24 DRAFT 6/26/2002 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 of a request by a requesting party to renegotiate this Agreement or negotiate Agreement amendments and the responding party agrees to renegotiate fairly with the requesting party. 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, CONCESSION AGREEMENT Page 25 DRAFT 6/26/2002 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 a memorandum of this Agreement to be recorded with the land use records of Kitsap County, Washington. 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 xvhich this concession is granted. CONCESSION AGREEMENT Page 26 DRAFT 6/26/2002 , IN WITNESS WHEREOF, this Agreement has been entered into between the City of Bremerton and ~Bremerton Ice Arena, Inc. as of the __ day of ,2002. Si!verda!e Bremerton 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 o£ Premises Exhibit B - Preliminary Building and Site Plans Exhibit C - Appraisal and Compensation Information CONCESSION AGREEMENT Page 27 DRAFT 6/26/2002 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 ) ) SS. COUNTY OF KITSAP ) On this __ day of ,2002, before me personally appeared ., to me known to be the of ~BREMERTON 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 28 DRAFT 6/26/2002 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 Begirming 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 DRAFT 6/26/2002 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 ~Bremerton 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 ~Bremerton 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 ~Bremerton Ice Arena, Inc. have agreed that, upon issuance of an occupancy permit, fair compensation for the Eastpark property required by ~Bremerton 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 ~Bremerton 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 C AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Public Hearing FOR AGENDA OF: June 26~ 2002 Resolution # ~ ~ (t, i , regarding recovery of fees for ORIGINATING DEPT.: Fire Dept. the abatement of garbage and debris on the property ORIGINATOR: Al Duke located at 636 Pleasant Avenue. DATE SUBMITTED: 2. CLEARANC ~F~: (Comment on back if 3. EXHIBITS: Fire Chief: LJ~----~~ 1. Resolution # ~ ~5 ~ I City Clerk: '~_ ~ ~_o~.~. 2. Clerk Report .... City Atty- _~_ ~~a~~_.. 3. Photos BY COWCIL P SU EYr FOR SW TTA : MAYOR / ]~:ff~- -~COUNCIL PRESIDENT ~ ~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: On May 7, 2002, Public Works removed garbage and debris on the property located at 636 Pleasant Avenue after the owners of record, Brooks and Kathleen Coldwell and Washington Mutual, failed to do so as ordered. The legal requirements for notice were met. The cost of the abatement, including administrative fees, totaled $1,456.56. Council must now decide if the fees are just and reasonable and how they should be collected. RECOMMENDATION: I move that Council, by Resolution # ¢q ~ ~' I , order that the fees in the amount of $1,456.56 incurred for the abatement of garbage and debris located at 636 Pleasant Avenue be collected as reasonable abatement costs and become a lien against the property. 9. RESPONSIBLE OFFICIAL: Al Duke ENFORCEMENT OFFICIAL: Al Duke EXPIRATION DATE: N/A REVIEW DATE: N/A 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED AMENDED COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO.: 2. CLEARANCE COMMENTS: 5. IMPACT OF NON-PASSAGE: The City would forfeit the costs incurred for this action. 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 A RESOLUTION of the City Council of the City of Bremerton, Washington, reviewing charges for the abatement of garbage and debris on the property at 636 Pleasant Avenue and determining means of collection. WHEREAS, the City of Bremerton incurred costs for removal of garbage and debris on the property located at 636 Pleasant Avenue; and WHEREAS, the Bremerton Municipal Code allows the City to recoup these costs either by personal judgmem against the property owner or as a lien against the property; and WHEREAS, the City Council is charged with determining whether the fees are just, and how they should be collected; and has considered the report of charges filed by the Building Official and any protests or objection filed; and WHEREAS, the Building Official of the City of Bremerton recommends the fees be collected as a lien against the property located at 636 Pleasant Avenue, now, therefore, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. That the abatement charges included in the report of the Building Official in the amount of $1,456.56 for the property located at 636 Pleasant Avenue, Bremerton, attached hereto, are just and reasonable. SECTION 2. That the City of Bremerton will exercise its right to recapture abatemem fees by filing a lien against the property. SECTION3. Severabili_ty. 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 BREMERTON FIRE DEPARTMENT 817 Pacific Avenue · Bremerton, WA 98337 * (360) 478-5380 · FAX (360) 478-7257 June 11, 2002 Memo To-' Paula Johnston, Deputy City Clerk From: Janet Lunceford, Fire Department CC: Chief Duke Re: Public Hearing, 636 Pleasant Avenue On May 7, 2002, Public Works removed garbage and debris fi.om the property located at 636 Pleasant Avenue after the owners of record, Brooks and Kathleen Coldwell and Washington Mutual, failed to do so as ordered. The cost of this action, per the attached interfund transfer and including the administrative fees, totaled $1,456.56. ! have scheduled a public hearing for June 26, 2002 for Council to decide how the fees should be collected. CITY OF BREMERTON INTERFUND TRANSFER CITY DEPARTMENTS ONLY DATE 06/05/2002 TRANSFER# 10217 COMPLETE THIS FORM IN DUPLICATE AND RETURN TO ACCOUNTS PAYABLE Fire Department (Fund 108) TO PWO-STREET DIVISION FROM Abatements/Demolitions (REVENUE DEPARTMENT) (EXPENDITURE DEPARTMENT) DESCRIPTION TOTAL Charges per attached summary for: May 2002 BLAB LABOR $357.96 EQUIPMENT $222.00 MATERIALS $240.60 SALES TAX $0.00 TOTAL $820.56 ACCOUNT AMOUNT ACCOUNT AMOUNT '42-349.3900 $820.56 (SignHere)k~ ~ L ~-, (Si?.n /a./ Details Page 1 ~6/05/2002 10:52:55 AM CITY OF BREMERTON PWO-STREET DIVISION Customer: BLAB Fire Department (Fund 108) - Abatements/Demolitions Date ID Numbers Description Regular Overtime Costs 05/07/02 sD52oo22 521123 Clean-Up Debris 636 Pleasant Ave 0524 Colen Corey 2.00 hr $68.00 3013 '92 GMC 1-TON P/U 1.00 hr $9.00 0583 Mark A. Thompson 3.50 hr $119.00 3091 1987 Int'l 12 yard Dump Truck 2.00 hr $68.00 3069 1990 Int'l 10 Yard Dump Truck 1.50 hr $51.00 2274 Antonio J. Cruz 3.50 hr $34.48 3077 '95 3/4T FORD P/U 1.00 hr $8.00 2371 Kent Grunenfelder 3.50 hr $34.48 3078 '95 1-TON CHEVY 1.00 hr $9.00 05/08/02 sm2oo22 521140 Clean-Up Debris 636 Pleasant Ave Haul out debris. 19o4 Jim Iovinelli 1.00 hr $34.00 3069 1990 Int'l 10 Yard Dump Truck 1.00 hr $34.00 0583 Mark A. Thompson 1.00 hr $34.00 309l 1987 Int'l 12 yard Dump Truck 1.00 hr $34.00 0524 Colen Corey 1.00 hr $34.00 3013 '92 GMC 1-TON P/U 1.00 hr $9.00 DUMPIN Dump Fees - Oly.View Sanitary Landfill 20.00 yd $207.60 DUMPAP Dump appliances at Oly. View San. Landfill 2.00 in $33.00 $820.56 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: 6/26/02 ORIGINATING DEPT: Admit Services Resolution No. 2~&~h- ORIGINATOR: K. McCluskey AT&T and Comcast Merger DATE SUBMITTED: 6/12/02 2. CLEARANCES: 3. EXHIBITS: Attorn Resolution FiscaZ Operations ~ ~ ENDORSEM~ INFO~ APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR t~_~_~ ~ ~ COUNCIL PRESIDENT~/~A~- 4. SUMYLARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: AT&T Corporation, the parent corporation of our franchisee, and Comcast Corporation have announced their intention to combine their cable systems into a new public company, AT&T Comcast Corporation. Pursuant to Section 2 of the franchise city approval is required for any transfer of ownership or change in control. We have reviewed information provided by the franchisee which pertains to legal, financial and technical qualifications of Comcast to perform the obligations of the franchisee. We have also waited for more detailed reviews to be performed by larger cities affected by this transfer. The current franchisee is not in violation of any franchise requirements and Comcast qualifies for approval under the terms of our franchise. There will be no change in local management of the cable company. 8. RECOPKMENDAT I ON: Motion to approve Resolution No. ~~. 9. RESPONSIBLE OFFICIAL: Admit. Services ENFORCEMENT OFFICIAL: Admit. Services EXPIRATION DATE: 8/2007 REVIEW DATE: 2006 10. NOTICE OF ACTION PULLED T;eBLED AP P ROVED D I SAP P ROVED AMEND ED COUNCIL DIRECTIVE: Date: 0 ~' ~fd~ 11. AGENDA BILL NO: 2. CLEARANCE COMMENTS (cont.) : 4. SUMMARY STATEMENT (cont.): 5. IMPACT ON NON-PASSAGE: 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES None. 7. RESEARCH SOURCES: TCI CABLE FRANCHISE the Franchise subject to revocation unless and until the City shall have given written prior consent thereto. If TCI wishes to transfer this ~anchise, TCI and City shall proceed pursuant to Section 617 of the Cable Act and related rule makings of the FCC. TCI shall give City written notice of the proposed transfer, and shall request consent of the transfer by the City. For the purposes of determining whether it will consent to such transfer, City may inquire into the qualifications of the prospective transferee to perform the obligations of TCI under this Franchise agreement. TCI shall assist City in any such inquiry, and shall provide all information requested in writing by the City that is reasonably necessary to determine the legal, financial and technical qualifications of the proposed transferee in order to determine whether it will consent to the proposed transfer. All costs associated with the City's review process, including but not limited to legal and consulting costs, shall be reimbursed to the City by TCI. In cases where the City finds it inappropriate to give unconditional consent to the proposed transfer, the City may offer its consent upon such terms and conditions as it deems appropriate, related to the qualifications of the prospective transferee to peri'om the obligations of TCI under this franchise. Consent to the transfer shall not be unreasonably withheld. Any transfer of ownership effected without the written consent of the City shall render this franchise subject to revocation. The City shall have 120 days to act upon any request for approval of a transfer that contains or is accompanied by such " information as is required in accordance with FCC regulations and by the City. If the City fails to render a final decision on the request within said 120 days, the request shall be deemed granted unless TCI and the City agree to an extension of time. TCI, upon any transfer as heretofore described, shall within sixty (60) days thereafter file with the City a copy of the deed, agreement, mortgage, lease, or other written instrument evidencing such sale, lease, mortgage, assignment or transfer, certified and sworn to as correct by TCI. Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed void and of no effect unless TCI shall within sixty (60) days atter the same shall have been made, file such certified copy as is required. The requirements of this Section shall not be deemed to prohibit the use of TCI's property as collateral for security in financing the construction or acquisition of all or pan of the Cable System franchised hereunder. However, such financing shall be subject to the provisions of this Franchise. 2.8 CHANGE IN CONTROL TCI shall promptly notify the City through the City Council of any proposed change in, transfer of, or acquisition by any other party of control of TCI. If ownership of thirty (30) percent or more of the voting stock of TCI, or of any parent company of TCI directly or indirectly controlling or managing TCI, or of any entity now owning or later acquiring such a beneficial interest is acquired by a single entity or by several entities under common control, and if such entity or agent of common control is other than an organization a) whose primary business is cable system operation, and b) is more than 50 TCI CABLE FRANCHISE percent owned by TCI or a parent of TCI, then a change in control will be deemed to have taken place unless the City, upon request of TCI, finds otherwise. Such change in control shall make this Franchise subject to revocation unless and until the City shall have given written consent thereto. For the purpose of determining whether it will consent to such change, transfer, or acquisition of control, the City may inquire into the qualifications of the prospective controlling party to perform the obligations of TCI under this Franchise. TCI shall assist the City in any such inquiry. The City may condition its consent upon such terms and conditions as it deems appropriate. Consent to the transfer shall not be unreasonably withheld. 2.9 REVOCATION In addition to any rights set out elsewhere in this document, the City reserves the right, without prejudice to the requirements of Section 2.14, to declare a forfeiture or otherwise revoke the Franchise, and all rights and privileges pertaining thereto, in the event that: A. TCI is in substantial non-compliance with any material provision of the Franchise and fails to correct the violation after written notice of the violation and proposed forfeiture and a reasonable opportunity thereafter to correct the violation as noted in Section 7.6, Procedure for Remedying Franchise Violations; or B. TCrs completion of the channel capacity upgrade as required by Section 4.3 is delayed for more than 12 months from the completion date identified in the construction schedule approved by the City; or C. TCI or any parent company becomes insolvent, unable or unwilling to pay its debts as they become due, or is adjudged a bankrupt; or D. TCI fails to obtain and maintain any permit required by any federal or state regulatory body, relating to the construction, maintenance and operation of the system; or E. At any time during the term of the Franchise, as it may be extended from time to time pursuant to this Ordinance, TCI fails to provide and maintain a Construction Bond and Performance Bond as required under Sections 11.3 and 11.4 and of this Ordinance; or F. TCI practices or attempts to practice any fraud or deceit upon cable subscribers or upon the City, whether during the term of the Franchise or in any proposal, application, or negotiations relating to the Franchise; or G. TCI fails to restore service after ten (10) consecutive days of interrupted service, except when approval of such interruption is obtained from the City; or H. TCI engages in a continuous and willful pattern of grossly inadequate service and fails to respond to legitimate subscriber complaints. Upon the occurrence of one of the events set out above, following thirty (30) days written notice to TCI of the occurrence and the proposed forfeiture and the completion of the tc~i4so8 /o~ ~ Page9 RESOLUTION NO. ~ ~ ~'~,~ A RESOLUTION of the City Council o£ the City o£ Bremerton, Washington, approving the proposed change of control of TCI Cablevision of Washington, Inc., holder of a Cable Franchise in Bremerton, from AT&T Corp., to AT&T Comcast Corporation. WHEREAS, the City of Bremerton ("Franchise Authority") authorized the issuance of a Franchise Agreement to TCI Cablevision of Washington, Inc. (the "Franchisee") by Ordinance No. 4598 passed by the Bremerton City Council on or about July 12, 1997 and documented by Franchise Agreement dated August 21, 1997 ("TCUBremerton Franchise"); and, WHEREAS, AT&T Corp. ("AT&T") acquired Tele-Communications, Inc. ("TCI") the ultimate parent corporation of the Franchisee pursuant to an Agreement and Plan of Merger dated June 23, 1998; and, WHEREAS, pursuant to Resolution No. 2687, the Bremerton City Council consented to the change of control of the Franchisee from TCI to AT&T as required pursuant to Sections 2.7 and 2.8 of the TCUBremerton Franchise; and, WHEREAS, AT&T Broadband Corp. is a newly formed, wholly owned subsidiary of AT&T that will hold directly and indirectly all of the assets and liabilities of certain other AT&T entities, including the Franchisee; and WHEREAS, AT&T now intends to merge AT&T Broadband Corp. with Comcast Corporation ("Comcast") to create a new company to be known as AT&T Comcast Corporation ("AT&T Comcast") pursuant to the terms of an Agreement and Plan of Merger dated December 19, 2001 by and between AT&T Corp. and AT&T Broadband Corp., Comcast Corporation and certain of their respective affiliates, and a Separation and Distribution Agreement dated December 19, 2001 by and between AT&T Corp. and AT&T Broadband Corp. (the "Merger"); and, 1 Cable Franchise WHEREAS, prior to the Merger, pursuant to an internal corporate restructuring, the cable franchise or stock of the Franchisee, or indirect ownership of the Franchisee, may be transferred through one or more internal transfers or mergers to another direct or indirect subsidiary of AT&T, or Franchisee may elect as permitted by law to convert or reorganize its legal form to a limited liability company (together with the Merger, the "Transactions"); and, WHEREAS, following the Transactions, the Franchisee will be controlled by AT&T Comcast but will continue to operate the System and continue to hold and be responsible for performance of the TCI/Bremerton Franchise dated August 21, 1997; and, WHEREAS, the Franchisee and AT&T Comcast have requested that Franchise Authority consent to the Transactions in accordance with the requirements of the TCI/Bremerton Franchise and have filed an FCC Form 394 ("Transfer Application") with the Franchise Authority requesting such consent to the Transactions; and WHEREAS, the Franchise Authority is willing to consent to the Transactions; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The recitals set forth above are hereby incorporated by reference. SECTION 2. The Franchise Authority hereby consents to the Transactions as outlined in the recitals above in accordance with the terms of the TCI/Bremerton Franchise and applicable law. SECTION 3. AT&T Comcast and the Franchisee agree that the Franchisee shall be subject to and comply with the lawful requirements of the TCI/Bremerton Franchise and Resolution No. 2687, attached hereto as Exhibit A, including all applicable ordinances, orders, contracts, agreements, commitments, side letters, and regulatory actions taken pursuant thereto, Cable Franchise including but not limited to system upgrade commitments, support for Public, Educational, and Governmental ("PEG") cable access; and institutional network construction requirements in all respects and without exception. SECTION 4. AT&T Comcast and the Franchisee agree that the Franchisee remains responsible for any and all non-compliance under the TCI/Bremerton Franchise that may now exist or may later be discovered to have existed during the term of the franchise, even if prior to the closing of this Transaction. SECTION 5. (1) This Resolution shall not be effective until accepted in writing by AT&T Comcast. The acceptance, which shall be contingent upon final closing of the Transactions shall be substantially similar in form to that attached hereto as Exhibit A. (2) Within thirty (30) days after completion of the Merger, AT&T Comcast and the Franchisee shall file in the Office of the Administrative Services Director such written acceptance of this Resolution meeting the approval of the City Attorney and documentation evidencing completion of the Merger. (3) A failure on the part of AT&T Comcast and Franchisee to file such written acceptance and documentation within such time shall be deemed an abandonment and rejection of the rights and privileges conferred hereby and this Resolution shall thereupon be null and void. Such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in this Resolution. SECTION 6. This Resolution shall have the force of a continuing agreement with Franchisee and AT&T Comcast, and Franchise Authority shall not amend or otherwise alter this Resolution without the consent of Franchisee and AT&T Comcast. SECTION 7. 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. 3 Cable Franchise SECTION 8. 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, Washington this __ day of ., 20 CAROL AKENDS, Council President APPROVED AS TO FORM: ATTEST: ROGER A. LUBOVICH, City Attorney KATHLEEN MCCLUSKEY, City Clerk 4 Cable Franchise EXHIBIT A ACCEPTANCE Director of Administrative Services City of Bremerton 239 Fourth Street Bremerton, Washington 98337 This is to advise the City of Bremerton, Washington that AT&T Comcast Corporation hereby accepts the terms and conditions of Resolution No. __., passed by the City Council on , consenting to a change of control of TCI Cablevision of Washington, Inc. (the "Franchisee") from AT&T Corp. to AT&T Comcast Corporation. AT&T Comcast Corporation and the Franchisee agree that the Franchisee shall abide by, each and every provision of the franchise agreement, including all applicable ordinances, orders, contracts, agreements, side letters, commitments, and regulatory actions taken pursuant hereto, as applicable, and without exception, subject to applicable federal, state and local law. AT&T COMCAST CORPORATION TCI CABLEVISION OF WASHINGTON, INC. By: By: Title: Title: Date: Date: STATE OF .) )ss COUNTY OF ) This Acceptance was acknowledged before me on the __ day of ,20~, by as ~ a duly authorized representative of AT&T Comcast Corporation. Notary Public for the State of My Commission Expires: 5 Cable Franchise STATE OF .) )ss COUNTY OF ) This Acceptance was acknowledged before me on the __ day of ,20__, by as , a duly authorized representative of TCI Cablevision of Washington, Inc. Notary Public for the State of My Commission Expires: R:\LEGALLResolutions\ATT-C omcast Merger2.doc Cable Franchise RESOLUTION NO. ~- ~ A RESOLUTION approving the change of control of TCI Cablevision of Washington, Inc., holder of a Cable Franchise in Bremerton, Washington, to AT&T with conditions. 1. AT&T ("Transferee") has agreed to acquire Tele-Communications, Inc. ("TCF') pursuant to an Agreement and Plan of Merger, dated June 23, 1998. 2. TCI is the parent corporation ofTCI Cablevision of Washington, Inc. ("Franchisee") which presently owns and controls a cable franchise originally issued by the City of Bremerton ("City") by Ordinance No. 4598 passed by the City Council on July 12, 1997 ("TCI/Bremerton fi-anchise"). 3. Section 2.7 and 2.8 of the TCI/Bremerton franchise prohibit a franchise transfer or change in control without the prior written consent of the Cky of Bremerton. Section 2.7 of the franchise provide that the City of Bremerton may condition a transfer upon such terms and conditions related to the technical, legal, and financial qualifications of the prospective transferee to perform according to the terms of the Franchise as the Cky deems appropriate, including those conditions deemed necessary by the City to ensure the strict performance of the requirements of the franchise. 4. The proposed change in control of TCI is subject to the requirements of the Cable Communications Policy Act of 1992 ("1992 Cable Act"), and applicable implementing regulations of the Federal Communications Commission ("FCC"). TCI and Transferee filed FCC Form 394 pursuant to the 1992 Cable Act and FCC regulations, which was received by the City of Bremerton on September 4, 1998. In conjunction with such filing, TCI and AT&T have stated that the filing involves only a change in control at the parent level of TCI, that the Franchisee will continue to hold the TCI/Bremerton franchise, that local management and employees of. TCI will remain in place after the change in control, and that all commitments, obligations, and liabilities will remain in place, whether or not such commitments, obligations, or liabilities pre-dated the consummation of the proposed change in control. 5. It is recommended that the City approve the change of control subject to certain conditions, including: (a) assurances regarding Transferee's obligation to cause Franchisee to comply with all existing TCI/Bremerton franchise requirements; (b) documentation of Transferee and TCI corporate organization and proxy statements issued in connection with the merger; (c) assurances regarding completion of current TCI/Bremerton upgrade; (d) assurances regarding construction and completion of Bremerton institutional network commitments; (e) commitments to comply with all applicable laws regarding nondiscriminato~ access to Franchisee's proposed internet cable modem platform and services; (f) commitments to comply with all applicable laws regarding commercial leased access; (g) reimbursement of all direct, out-of-pocket costs of the City incurred in analyzing and acting upon change of control request; and (h) compliance with all other applicable legal requirements, including carriage of broadcast digital and high definition television signals, and interconnection of cable system with potential competitors for purposes of sharing cable PEG channels, to the e~ent required by the TCI/Bremerton franchise agreement. 6. The City should approve the change in control of the TCl/Bremerton franchise to Transferee subject to the formal acceptance by Transferee of the conditions set forth in this Resolution. BE IT RESOLVED by the City Council of the City of Bremerton that: a. The City of Bremerton hereby approves the change of control of the cable franchise of TCI Cablevision of Washington, Inc., Ordinance No. 4598 passed by the Council July 23, 1997 to Transferee subject to the following conditions: (1) Compliance with franchise. Transferee shall cause Franchisee to comply, with the lawful requirements of the TCI/Bremerton franchise, including all applicable ordinances, orders, contracts, agreements, commitments, side letters, and regulatory actions taken pursuant thereto, including but not limited to system upgrade commitments, support for Public, Educational, and Governmental (PEG) cable access; and institutional network construction requirements in all respects and without exception. (2) Organization and proxy statements, Within thirty (30) days of the earlier of closure of the merger transaction or public release of the requested information, Transferee shall submit (a) updated Transferee and TCI corporate organization charts identifying the roles, specifically, of AT&T Consumer Services and AT&T Business or Network Services; and (b) all publicly available proxy statements issued in connection with the merger. (3) Non-discriminatory access to cable modem platform. Transferee shall comply, and cause Franchisee to comply with all federal, state and local legal requirements with respect to nondiscriminatory access, to the Franchisee's cable modem platform for providers oflnternet and on-line services, whether or not such providers are affiliated with Transferee or the Franchisee. So long as cable modem services are deemed to be "cable services", as provided under Title VI of the Communications Act of 1934, as amended, Transferee and the Franchisee shall comply with all lawful requirements regarding such services, including but not limited to, the inclusion of revenues from cable modem services and access within the gross revenues of the Franchisee's cable franchise. (4) Commercial Leased Access. Transferee shall comply and cause Franchisee to comply with all lawful federal, state and local requirements with respect to commercial leased access. (5) Reimbursement of costs. Upon invoice by the City, the Franchisee shall within thirty (30) days of the invoice reimburse all direct, out-of-pocket costs of the City incurred in analyzing and acting upon Transferee's change of control request. Payment of such reimbursement shall accompany the form of written acceptance, as provided in subsection c., below. (6) Compliance with all other applicable legal requirements. Transferee shall cause the Franchisee to comply, with all other applicable legal requirements that are now or may hereafter apply to the Franchisee's cable operations, including, but not limited to, carriage of broadcast digital and high definition television signals, interconnection of cable system with potential franchised cable competitors for purposes of sharing cable PEG channels, and adherence to applicable federal and state emergency notification provisions to the extent required by the TCVBremerton Franchise agreement. (7) Responsibility for any non-compliance by franchisee. Transferee acknowledges that the legislative history of the 1992 Cable Act contemplates that the City should address any deficiencies in service, including non-compliance, at the time of transfer. Transferee agrees that the Franchisee remains responsible for any and all non-compliance under the TCI/Bremerton franchise that may now exist or may later be discovered to have existed during the term of the franchise, even if prior to the closing of this transaction. b. Written acceptance. (1) This resolution shall not be effective until accepted in writing by Transferee. The acceptance, which shall be contingent upon final closing of the transaction shall be substantially similar in form to that attached hereto as Exhibit I. (2) Within thirty (30) days after passage of this resolution by the Council, Transferee shall file in the Office of the Administrative Services Director such written acceptance of this resolution meeting the approval of the City Attorney. (3) A failure on the part of Transferee to file such written acceptance within such time shall be deemed an abandonment and rejection of the rights and privileges conferred hereby and this resolution shall thereupon be null and void. Such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in this resolution. c. Automatic nullification in event of failure to close or closure on materially different terms. In the event the transaction which is the subject of this resolution is not consummated or does not reach final closure for any reason, or in the event such closure is reached on terms substantially and materially different to the terms described in the FCC Form 394 and subsequent information provided by the Transferee and relied upon by the City, then this resolution, together with the written acceptance provided hereunder, shall be null and void. PASSED by the City Council of the City of Bremerton this 13th day of January, 1999. Council President · /37 ACCEPTANCE Director of Administrative Services City of Bremerton 239 Fourth Street Bremerton, Washington 98337 This is to advise the City of Bremerton, Washington that AT&T hereby accepts the terms and provisions of Resolution No. 2687, passed by the City Council on January 13, 1999, consenting to a change of control of Tele-Communications, Inc. to AT&T, with conditions. AT&T agrees to abide by, and to cause TCI and its subsidiaries and affiliates to abide by, each and every provision of the franchise agreements, including all applicable ordinances, orders, contracts, agreements, side letters, commitments, and regulatory actions taken pursuant hereto, as applicable, and without exception. Title: CJL,,~.~- C~,~-,~-~-,-,& C,,~,~~A Date: ~/& / ~ ~ State of L.e"/:/(~c. d ) Q,.% ) ss. Cognty of )~ ~,',', ~,q! C. ) TMs Accept~ce was ac~owledged before me on the ,? d~day of :z ~ ¢~:-, 1999, by ,~ ,: 6,~,~ s~r, a duly au%ofized / [ representative of AT&T. Not~ Public My pi co~ission ex res: AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: PUBLIC HEARING AND FOR AGENDA:. "~t? ~C ~ ~' / 2. ORDINANCE AMENDING TITLE 2 OF THE ORIGINATING DEPT: Legal BMC RELATING TO DEPARTMENTS AND ORIGINATOR: Roger A. Lubovich DIVISIONS OF THE CITY GOVERNMENT DATE SUBMITTED: May 23, 2002 2. CLE,AR~NCES: (Comment on back ifnecessary) 3. EXHIBITS: ~kz~ I .~"'~<~ '-~------~ -~ ~ O~N~C~ R0~ A. L~BOVICH, Ci{~ Attorney ~PROVED FOR S~MITTAL: MAYOR ~~ ~.¢~ ~~~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: An ordinance amending Title 2 of the Bremerton Municipal Code relating to the restructuring of certain departments and divisions within City government. The proposed ordinance would establish a new Finance Department and provide that the ,~Risk Management and Safety Office would report to the Office of the City Attorney. 8. RECOMMENDATION: Move to approve the attached ordinance on first reading. Move to pass Ordinance No. __ on the second reading. 9. RESPONSIBLE OFFICIAL: Roger A. Lubovich ENFORCEMENT OFFICIAL: Roger A. Lubovich EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: PULLED ~] TABLED [] APPROVED [-~ DISAPPROVED [] AMENDED [--] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: /37 5. IMPACT OF NON-PASSAGE: 6. IMPACT ON STAFFING~ BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: ORDINANCE NO. AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 2.08 restructuring the departments and divisions reporting to the Director of Administrative Services, by adding a new Chapter 2.09 to the Bremerton Municipal Code creating a separate Finance Department to include the accounting division and the treasury division; amending Chapter 2.06 of the Bremerton Municipal Code relating to the Office of the City Attorney; and amending Chapter 2.92 of the Bremerton Municipal Code relating to the Office of Risk Management and Safety. WHEREAS, the current provisions of Chapter 2.08 of the Bremerton Municipal Code relating to the Director of Administrative Services includes provisions relating to the department of finance, risk management division, accounting division and treasury division and WHEREAS, the City Council desires to restructure the departments and divisions reporting to Administrative Services by creating a separate Finance Department to include the accounting division and treasury division, re-designating the risk management and safety office division as reporting to the Office of the City Attorney and amending Chapter 2.92 relating to the Office of Risk Management and Safety to accomplish the same; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 2.08 of the Bremerton Municipal Code entitled "Director of Administrative Services" is hereby amended to read as follows: 1 Administrative Services - Finance and Risk ,~lanagement Chapter 2.08 ~......~.Jn ;~ r t~Tt~o..~.. OF. ADMINISTRATIVE SERVICES DE PARTMENT 2.08.010 DEPARTMENT CREATED. There is hereby created the Administrative Services Department. The Administrative Services Department shall consist of the Office of the City Clerk, the infomaation services division, the purchasina division, and Bremerton Kitsap Access Television (BKAT). The department shall be managed by the Director of Administrative Services who shall serve as the City Clerk. The Director of Administrative Services shall have complete charge of all of the work of the department and shall be responsible for hiring m~d supervising employees of the department. 2.08.020 DIRECTOR OF ADMINISTRATI'VE SERVICES - POSITION CREATED AND APPOINTMENT. There is hereby created the position kmown as the Director of' Administrative Services. The Director of Administrative Services shall be appointed by the Mayor, subject to confirmation by the City Cotmcil, on the basis of professional experience, education demonstrated knowledge of accepted practices relating to the duties of the department. 2.08.030 DUTIES. The Director of Administrative Services, in addition to perfomaing the duties of City Clerk, shall provide for the administration and operation of infomiation services, purchasing and BKAT fiinctions for the City. The Director of Administrative Services shall perfb~zn such other duties as the City Council or Mayor may direct or as may be required by law. 2 Administrative Services - Finance and Risk Management SECTION 2. A new chapter, Chapter 2.09, is hereby added to the Bremerton Municipal Code entitled "Finance Department" to read as follows: Chapter 2.09 FINANCE DEPARTMENT 2.09.010 DEPARTMENT CREATED. There is hereby created the Finance Department for the purpose of performing all finance and accounting functions of the City of Bremerton. The department shall be managed by the Finance Director who shall serve as the City Treasurer. The Finance Director shall have complete charge of all of the work of the department and shall be responsible for hiring and supervising employees of the department. 3 Administrative Services - Finance and Risk Management 2.09.020 FINANCE DIRECTOR - POSITION CREATED AND APPOINTMENT. There is hereby created the position known as Finance Director. The Finance Director shall be appointed by the Mayor, subject to confirmation by the City Council, on the basis of professional experience, education and demonstrated knowledge of accepted practices relating to the duties o£the department. 2.09.030 DUTIES AND POWERS. It shall be the duty of the Finance Director to: (1) Be responsible for the management of the city's investment and debt portfolios. (2) Assist city administration in budget preparation and monitoring. (3) Maintain the accounting system in accordance with generally accepted accounting principles (GAAP). (4) Maintain the payroll system. (5) Exercise control of accounts payable. (6) Maintain an inventory of capital assets. (7) Collect and account for all city funds. The Finance Director shall perform such other duties as the City Council and the Mayor may direct or as may be required by law. SECTION 3. Chapter 2.06 of the Bremerton Municipal Code entitled "City Attorney" is hereby amended to read as follows: Chapter 2.06 CITY ATTORNEY 2.06.010 OFFICEDEPARTMENT CREATED. There is hereby created the Office of the City Attorney which shall serve as the _Ltegal Ddepartment for the city pursuant to the laws of the State of Washington and the Charter of the City of Bremerton for the purpose of representing the city in all legal matters involving the city. The office shall be managed by the City Attorney who shall serve as its director, and who shall be responsible for hiring and supervising employees of the office. The City Attorney shall 4 Administrative Services - Finance and Risk ~lanagetnent oversee the civil and prosecution divisions of tine office and the Office of Risk Management and Safety established pursuant to Chapter 2.92 ' ' .~.~ ~,,s .......... : .......... ~ ........ by t~ 2.06.020 APPOINTMENT. The City Attorney shall be appointed by the Mayor subject to confirmation by tine City Council. The resie;nati, on of the City Attorney shall be effective upon the acceptance of resignation bv the iMayor. 2.06 ....930 DUTIES. To accomplish the directives of the City Charter and requirements of state law, the function of the Office of the City Attorney shall include, but not be limited to: a. Advise the Mayor, boards, commissions, department heads, Council and its committees, and other City officials and officers, including the rendering of formal legal opinions when so requested or when it appears to the attorney advisable to do so. b. Attend all regular and special meetings of the Council, unless excused by the President of the Council. c. Prepare, draft, approve as to form, or supervise the preparation of ordinances, resolutions, leases, deeds, contracts and/or agreements, and such other and similar instruments as may be required by the business of the City. d. Represent the City in criminal prosecutions in Municipal Court and appellate courts. C~.~.,,I~· .,,;*1~ ,i-1~ D-;~I. ~/i~.,~ ~.~.-I ~,~.q-;..;~.~.~ ;.~ .11 ~.~ I;i-;,~.-,-t,;.~.~ ~.lc,;~o ~Manage the Office of Risk Management and Safety. f. Represent the City in all litigation and administrative proceedings in which the City is involved either as a plaintiff or defendant, or recommend the appointment of special counsel therein. 5 Administrative Services - Finance and Risk Management g. Attend meetings of the Civil Service Commission, pension boards, and other commissions, boards, or committees required by law, or as directed by the Council, or requested by the chair of such board or commission. h. Facilitate bond issues; provided, this shall not mean the rendering of an opinion on the validity of the bonds in any case where special bond counsel has been retained by the City or by any prospective bond buyer. i. On request of the Mayor or Council participate in intergovernmental relations affecting the City. j. Keep litigation files and records, and copies of all other official written communications, and deliver same to successors of the Office of the City Attorney. k. Direct or participate in proceedings for the vacation of streets, condemnation of land, land acquisition, sale of surplus properties, and related legal transactions. 1. Prepare and administer the budget for the Office of the City Attorney'-s m. Serve as advisor and/or participant in labor negotiations and approve labor contracts as to form. n. Coordinate and assist in obtaining information and legal opinions from Municipal Research as requested by the Mayor, Council President, or Chair of the Audit Committee. o. Prepare and/or approve ballot measures and levies. p. Interpret substance, form, and applicability of the City Charter and ensure consistency of all ordinances, resolutions, and administrative rules therewith. fig fi'Iff A I~I/I"I'~I'ICTD "F'h~ t'~;i-~, A+~- ........ ;11 .1 .... 1 ...... .I ....... 1,~,.,-i-~ ..,.4++~ ......... h ...... I~*-;~,. +,..,.1..~ 6 Administrative Services - Finance and Risk Nlanagement 2.06.040 OUTSIDE EMPLOYMENT. The City Attorney and Assistant City Attorneys shall not engage in legal practice or compensable legal work while holding office with the City; provided, pro bono and minor legal matters for immediate family members are not prohibited so long as they do not interfere or conflict with this office. SECTION 4. Chapter 2.92 of the Bremerton Municipal Code entitled "Risk Management and Safety Office" is hereby amended to read as follows: Chapter 2.92 OFFICE OF RISK MANAGEMENT AND SAFETY OFFICE 2.92.010 CREATED. There is created amthe Office of Risk Management and Safety within the Office of the City Attorney. r~ .... ~ ..... , ^c ^ .~,~;,., ....... ; ........ ;~ The supervisor of said office shall be the Risk Manager, who shall report directly to the r~;~,^. ~r A.~;-~,.,,,;.,~ c .... ; .... · ................................... coC~tv Attorney. 2.92.020 FUNCTIONS. The Office of Risk Management and Safety shall be responsible for: (1) Loss reduction or prevention where such reduction or prevention is cost effective; (2) Transfer of risks to other parties where feasible through the purchase of insurance, and/or risk retention through a system of self-insurance and/or participation in programs providing pooled coverage, in whatever combination is most responsible and cost effective; (3) Coordination and handling of all claims, including workers' compensation claims; and (4) The maintenance of an effective employee safety program within the City. 7 Administrative Services - Finance and Risk ~,Vlanagement (5) Writing interdepartmental rules as he or she deems appropriate for the implementation and administration of this chapter. 2.92.030 RESPONSIBILITY - SAFETY, LOSS REDUCTION, PREVENTION. (1) The Risk Manager shall be responsible for risk identification, analysis and control. Under the direction of the Risk Manager, the Safety Officer shall develop and administer the City's Safety Program and ensure compliance with the program by making periodic inspections of City facilities, work sites, and office spaces in regards to employee safety. The Risk Manager and the Safety Officer have full authority to immediately stop any ongoing work when prescribed safety precautions are not being adhered to, or if there are serious concerns for safety until the matter is satisfactorily resolved. (2) The Safety Officer is not required to be assigned to the lbepavav~a+t-~ Admini~trati. ve Sc:r';icc~Office of the City Attorney. He or she may be assigned to any other department within the City, but when functioning in that capacity, the Safety Officer will serve under the direction of the Risk Manager. (3) The Safety Officer, through the Risk Manager, willrn.ay make written recommendations regarding employee safety to the appropriate Department Head. Should the Department Head disagree with the Safety Officer, a written response shall be made to the .................................. ,,oC~ty Attorney stating the reasons for the disagreement. The Mayor shall make the final decision regarding implementation of any disputed recommendation. (4) The Safety Officer is responsible for ensuring proper safety training is provided to all City employees and for ensuring that required certifications for employees are kept current. He or she shall also become actively involved in the on-going training programs provided by Human Resources and other departments and ensure that a portion of that training is on Safety Awareness and Loss Prevention. (5) The Risk Manager and Safety Officer are permanent members of the City's Safety and Health Committee and shall monitor the Committee to ensure compliance with all applicable WISHA directives, provide input, and offer advice and assistance in helping the Committee to achieve its stated goals. The Safety Officer shall maintain the file of minutes of each Committee meeting. 8 Administrative Services - Finance and Risk Management (6) The City AttorneyRisk ........ s,~ shall advise and recommend to all City Departments, appropriate contractual clauses providing for indemnity, hold harmless and insurance provisions._, 'and The Risk iManager shall review all proposed City contracts, permits and leases to ensure that all contractual provisions relating to indemnity and hold harmless provisions adequately protect the City. 2.92.040 INSURANCE/SELF-INSURANCE/POOLED COVERAGE PROGRA~MS. The Risk Manager is responsible for the design, negotiation, procurement and administration of all insured~ ~',cn~3/or self-insured and/or .pooled coverage programs: (1) The Risk Manager shall determine and recommend the appropriate retention levels and amount of reserves to be established; (2) The Risk Manager shall negotiate with insurance brokers for any type of insurance and may recommend that the City engage the services of such brokers; (3) The Risk Manager shall purchase, with the approval of the [hr-eetor-~ ........................... C~tv Attorney and City Council, all insurance policies, funded self- insurance programs, pooled coverage and related services, and shall administer the same; (4) The Risk Manager shall make an annual report to the City Council regarding insurance coverage and the level of retained risk, and such other reports as arcmay be required by Council; function. 9 Administrative Services - Finance and Risk Management 2.92.050 CLAIMS MANAGEMENT - SELF-INSURED WORKERS' COMPENSATION CLAIMS. The Risk Manager, or designee, shall be responsible for the direction and monitoring of all self insured workers' compensation claims to a fair and equitable conclusion. (1) Every employee shall immediately complete the appropriate report form when work-related injury or illness occurs and promptly forward same to the designated supervisor, who is responsible for immediately forwarding to the Risk Manager with any pertinent comments. The Risk Manager shall complete the employer section. (2) The Risk Manager shall coordinate activity on the claim with the claim's administrator, who shall be a certified workers' compensation claims administrator as required by law, including time-loss, medical verification, and instruction involving progress of the claim. (3) The Risk Manager shall coordinate with the City Attorney and the Human Resources Ma,~ager Director for retaining such outside expertise as necessary for the resolution of claims. These may include, but are not limited to, doctors, rehabilitation specialists, and investigators. The City Attorney's Office may elect to represent the City in all hearings and/or trials involving workers' compensation claims, or shall appoint outside counsel when appropnat ....... ~,,,. (4) The Human Resources ~'~ ...... e,,-L Director shall develop appropriate return-to-work opportunities for injured employees and, when feasible, will coordinate the implementation of specific return-to-work plans with the department heads involved. .,:,, ...... ,,, ,.,.,~,.,~ ......................... 2.92.055 CLAIMS MANAGEMENT COMMITTEE. CLAIMS MANAGEMENT COMMITTEE. To assist the Mayor, a Claims Management Committee ~ 'sha41-~omprised of the Mayor or designee, City Attorney, Dir~-ter-~' ^ .~.;,.;,.0...,.,.; .... c ..... ; .... Risk Manager, appropriate department head{s), and the City's contracted claims adjuster may convene as needed as determined bv the City Attorney. This committee will review large, litigated, or controversial liability and workers' compensation claims against the City on a .... ~ ,~- ............. ',, ~-,,~;~ ................. .~ ........ : ........ The committee's review shall include: 10 Administrative Services - Finance and Risk Management (a) The possibilities for early settlement. (b) Identification of defense and settlement strategies. (c) Identification of defense counsel. (d) Estimation of reserve level necessary for claims resolution. (e) Discussion and clarification of loss control responsibilities and policies. 2.92.060 CLAIMS MANAGEMENT - NONLITIGATION CLAIMS. The Risk Manager or designee shall be responsible for the successful conclusion of all nonlitigation claims by or against the City. (1) The r~;~, .... c ^ ~,:,,:~+,..,,.;,r~ c .... ; .... *'"~ 5cCity Clerk is hereby designated ~"~,,j '*'~L~,~ r-:,,,~.L~ Ccunc:~l. to receive all claims. He/she shall forward to the Risk Manager all nonlitigation claims naming the City and/or its officers or employees, which claim(s) allege that said officers or employees, acting within the scope of their duties, caused the claimant damages. (2) All city departments, divisions and other city agencies shall report immediately to the Risk Manager the occurrence of any accident or incident which may give rise to a claim by or against the city to ensure prompt investigation of the incident. (3) The Risk Manager shall initiate and/or coordinate the investigation of all nonlitigation claims. The Risk Manager may employ, subject to the x~ ........ .... ~,,~ o City Attorney's approval, the services of claims specialists. All investigation of nonlitigation claims and potential claims shall be conducted as the agent of the City Attorney, and protected by the attorney-client privilege and attorney work product rule. (4) The Risk Manager shall have the authority to deny or negotiate the settlement of any claim to an amount not to exceed $14,999 subject to the approval of the City (5) For all nonlitigation claims of $15,000 or more, the Risk Manager shall provide ........ '" ...... ' ............. C~ty Attorney with a ~recommendation that the nonlitigation claim be accepted or denied and the reasons therefor, e,,~h Upon request of the r-~,,; .... ~ ............... p .....4. .... pit,, ................ s ........................... ~ Attorney, the Risk Manager shall coordinate additional investigation of the claim. The Mayor shall have the authority to 11 Administrative Services - Finance and Risk Managetnent accept or deny the claim provided, however, that claim payments in excess of $49,999 shall be subject to approval by the City Council. (6) The Risk Manager shall maintain complete histories of all nonlitigation claims reported to the office of Risk Management and Safety, and investigation thereof sufficient to document at least a five-year claims history. (7) T-h,~ r>;ot~ ~r~. ...... ~.~. .... :+~ ~"*~"~'""* .... *~ .......... ~, .... t~ ............ ~ · ...... ~.. ....... fidncticn. 2.92.070 CLAIMS MANAGEMENT - LITIGATION CLAIMS. (1) Service of process on the Mayor, Mayor's designee or City Clerk shall constitute service on the city. No other city official or employee may accept service of a summons and/or complaint unless such official or employee is specifically named in the lawsuit. (2) The Mayor, Mayor's designee or City Clerk or defendant employee upon accepting service of the summons and/or complaint, shall deliver copies to thc Director of ^ .~:..:~+~: .... c .... ; .... c~.. ~;~,~...~^_ t~ ~h,~ Risk Manager and City Attorney. (3) The Risk Manager shall transmit copies of the lawsuit to the affected department and/or individual and, where appropriate, to the insurance company, pool or representative. The Risk Manager shall advise the Ceity Aattomey's ^rc.~ : ..... :,.:_~ ...... , ........... s, of the insured status of the lawsuit. (4) The Risk Manager shall initiate and/or coordinate the investigation of all lawsuits which may be insured against involving the city and/or its officials/employees. The risk manager may employ, subject to ~'~ ...... '~ ' ...... .r-,, o City Attorney's approval, the services of claims specialists. All investigation of law suits shall be conducted as the agent of the City Attorney, and protected by the attorney-client privilege and attorney work product rule. (5) Upon completion of the investigation, or at any time requested by the City Attorney, the Risk Manager shall ~forward the investigative file to the City Attorney. Upon request of the City Attorney, the Risk Manager shall coordinate additional investigation of the lawsuit. (6) The City Attorney shall have the authority to authorize settlements up to $14,999. 12 Administrative Services - Finance and Risk Management (7) For all litigated claims of $15,000 or more, the City Attorney shall provide the ................ ~ ..................... Mavo~ with a ~Titttm-recommendation that the litigated claim be accepted or denied and the reasons therefor. ................. s~a .................... The Mayor shall have the authority to accept or deny the claim, provided however that settlement pa~ents in excess of $49,999 shall be subject to approval by the City Council. (8) The City Attorney shall maintain complete histories of all lawsuits sufficient to document at least a Eve-year histo~ of s~e. 2.92.075 CLAIMS NEGOTIATION, DISCUSSION, AND REPORTING. (1) Except as specifically directed by the Risk Manager, Mayor or City Attorney, no city department, division, or other city agency, and no city official or employee, acting individually or collectively, may engage in the following acts: (a) Negotiate or otherwise effect the settlement of a claim or lawsuit involving the city; (b) Discuss with persons other than the Risk Manager, Mayor, City Attorney, or persons authorized by the Risk Manager, Mayor or City Attorney, incidents which could reasonably lead to a claim or lawsuit against the city; provided, however, that the employee may discuss the incident with his/her supervisor. (2) Prior to any formal settlement offer, the Risk Manager shall be advised, in writing, of all proposed settlements of claims and lawsuits against the City. The Risk Manager shall seek approval of its-~xcess insurers, in conformance with the provisions of any insurance policies applicable to the claim or lawsuit. In the event the insurer does not provide necessary settlement approval, no settlement shall be made without the Mayor's written approval and acknowledgment that d~e City's insurers have withheld approval. ,.~,oF,.,o.,,,~,, Oim~'~O ~t~ 'SUIt. (3) ........ Yhe Risk Manager .............................................. l~,..~ xear,., shall annually report to thc council the total number and amount of all claims filed against the city and 13 4 dministrative Services - Finance and Risk Management the number and amounts of all claims or lawsuits paid by the city during the preceding calendar year. 2.92.080 RECOVERY OF LOSSES. (1) Action for Recovery. The Risk Manager and City Attorney shall be responsible for bringing all actions, including claims and lawsuits, for recovery of losses to the City arising out of the acts of others. Such losses may include property damage or losses which impact on the City as a result of personal injuries to city officers or employees. In addition, the City Attorney may join the City as a party with any third party; in a lawsuit involving recovery of loss to the City. :fq~,~ C-i~y-~: ~tte .... j ................. ~ ................ ~ ............ (2) Allocation of Recoveries. Any moneys recovered (excluding costs of recovery) by the Risk Manager or City Attomey on account of losses to the City shall be paid to the budget unit or department which has expended funds and/or materials as a result of the loss. Any moneys in excess of those so expended shall be transferred to the risk management fund as, set SECT'ON 5. Severability. If any one or more sections, subsections, or sentences of this ©rdinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SEC170N 6. Effective Date. This ordinance shall take effect and be in force ten (10) days from and a l'ict' its passage, approval and publication as provided by law. APPROVED by the City Council the day of ,2002 PASSED by the City Council the day of ,2002 CAROL ARENDS, Council President 14 Administrative Services - Finance and Risk Nlanagement Approved this day of ., 2002 CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: KATHLEEN MCCLUSKEY, City Clerk -Ri31JSER A. L-0~BOVICH, Cit~ttomey PUBLISHED the day of ,2002 EFFECTIVE the day of ,2002 ORDINANCE NO. R:XLEGAL\Ordinances~Admin istration~Finance and Risk Management.doc 15 Administrative Services - Finance attd Risk Management / AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: PUBLIC HEARING AND FOR AGENDA: June 26 and July 10, 2002 ORDINANCE AMENDING TITLE 2 OF THE ORIGINATING DEPT: City Attorney BMC BY ADDING A NEW CHAPTER 2.07 ORIGINATOR: Roger A. Lubovich CREATING THE ECONOMIC DEVELOPMENT DATE SUBMITTED: June 17, 2002 DEPARTMENT 2. CL~S: (Comment on back if necessary) 3. EXHIBITS: ~-~<-~ ~ ORDINANCE R~t~A.~VI-CH, City Attom-e~ OPERATIONS CHA~ ~PROVED FOR S~MITTAL: E~ORS~ E ~~mATION D 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: An ordinance adding a new chapter, Chapter 2.07, to the Bremerton Municipal Code creating the Economic Development Department for the purpose of facilitating economic and community development and revitalization projects within the City of Bremerton. 8., RECOMMENDATION: Move to approve the attached ordinance on first reading. Move to pass Ordinance No. __ on the second reading. Move to confirm the appointment of Gary Sexton as the Economic Development Director. 9. RESPONSIBLE OFFICIAL: Roger A. Lubovich ENFORCEMENT OFFICIAL: Roger A. Lubovich EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: PULLED [-] TABLED ~-] APPROVED [-q DISAPPROVED [~ AMENDED [-] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: 5. IMPACT OF NON-PASSAGE: 6. IMPACT ON STAFFING~ BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: Jun-26-02 04:15P Mayor's Office P.01 Oun-26-OZ 01:58P J,ne 26, 2002 (Via Fax) Cary ~ozcman, Mayor City of Brcmerton 299 Fourth Street Bmmenon, WA 98337 KITSAP RI~GIONAL RE: Sup~rt for ~onomit ~vel~m~t ~epn~ment ~ONO~C ~EVELOPME~ CO~CIL ~ar Ma~or ~zcm~: BOA~ ~ DI~ The p~sc oflh~s l~er i~ to ~u~ your pro~l to li~ City Council ~o cr~Me ~ ~o~mic [~veJ~ent Deparlmcnt For the City of Li~ N~k. C~.~ B~m~on ~d to realign ~min fu~tions. ~ucce~ with the op~xmilie~ for ~o~ck ~d ~m~y re-development ~d ~velopmznl in thc Ci~, ~wmown. at ~as{ Pa~ and P~e C~, Vwe-C~ir V~ ~nt We~ P~k ~d eisew~ thr~ghout t~ ~mu~ily ~uire~ lhe fidl 6mc S~o~n Smt~ B~ey a~ention ora strong learn of ~ffpmfcssionals. and thai ix whal you have, Executive Di~, ~ Rcg~ As y~ know. ~ thc ~DC h~ pmmot~ Kilsap ~ a gr~ place ~o~c ~n~ Coum, t ~ine~es, ~ have lo, md l~t i~ fa~ of Rmme~on has bccn an Butch Tr~sarer Pr~tive new ~nplo~ as well ~ cu~m husincssmcn and r~idc~ts ~ivcd ~t t~ "fret d~r" to K~tsap d~a~ly needed not only a c~t o~ paint bm sh My ~w ha~wa~. Now, ~hc Cily ;s m~ tile brink of new 1~ A~M c~swu~ion ~oj~ts that have ~ ~lked ~ut for yeats. J laving ~c ~ight CEO. Br~y S~U. Inc. or, barton to make sum Ihc~ pmj~s "get out of thc ground is critical. ~fls Comm~ssi~e~ This new em~s on org~i~ng f~ ~mm~i~ and Ki~ C~ty deve~pmenl hy y~ and ~ur s~ff will ~low thc KRE~ to t~us i~s t~nmsI on i~ fi~ ~d fo~t ta~k - mmk~h8 all of Ki~ as the ~ p}acc in the Wi~er~re Red ~s~ PUSOI S~nd rc8~ to ex~ ~sin~s. Our ~ima~ goal confines to ~w ~ ~d jo~ ~at b~ng nc~v ~mcy into thc c~mun~y, by growing existing busines~s Co~r~ Rcl~ M~er and ~atin8 new ones. ~get Sound ~rgy Jo~ R~ We obse~c that in ~h~ su~ssful~' changing communitms 1hc~c ~s a j~ ~ colla~ralive and mm~ly sup~nive mlMionship ~v~n thc "internal'* city Preset devdo~ent ~men~ ~d thc "resio~t" ~onomic develo~cnt Ol~c P~ny ~p, ~C or. ninths. ~e f~er ~nerally ~a] with I~ c~mun~, develo~em ~ ~ pro, ets. whi~ thc I~cr ~lp to improve the felix's assct~ nu~ wo~ to M~ng U.S. Bmc~r h~ m ~ruit prim~y.jo~ bu~ss~ to all ~mmunities within thc ~8ion. Wilh ~uls~ City C~i flJiS ~-or~nizati~. y~ are providing thM o~uniW, and we look forward Dw~ Sult~ wo~i~ h~d.-in-h~d with you. to s~ Btem~on a~ all of Kit~p build a ~b Wi~ ~trong and ~t~hy Pon BJ~cly Co~.nilie~ ~ ~halfof the You~ ~-~9 ~ I-8~ E-mU: ~~.~ Chair 8~, WA ~J2-2~ ~c: Bremcffon City ORDINANCE NO. AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Title 2 of the Bremerton Municipal Code, adding a new chapter, Chapter 2.07 creating the Economic Development Department for the purpose of facilitating economic and community development and revitalization projects within the City of Bremerton. WHEREAS, the City Council desires to establish a new department within the city government entitled Economic Development Department; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. A new chapter, Chapter 2.07, is hereby added to the Bremerton Municipal Code entitled "Economic Development Department" to read as follows: Chapter 2.07 ECONOMIC DEVELOPMENT DEPARTMENT 2.07.010 DEPARTMENT CREATED. There is hereby created the Economic Development Department for the purpose of planning, organizing, coordinating and directing economic development and related project coordination activities of the City. The department shall be managed by the Economic Development Director, who shall have complete charge of all of the work of the department and shall be responsible for hiring and supervising employees of the department. 2.07.020 ECONOMIC DEVELOPMENT DIRECTOR- POSITION CREATED AND APPOINTMENT. There is hereby created the position known as Economic Development Director. The Economic Development Director shall be appointed by the Mayor, subject to confirmation by thc 1 Economic Development Department City Council, on the basis of professional experience, education and demonstrated knowledge of accepted practices relating to the duties of the department. 2.07.030 DUTIES AND POWERS. It shall be the duty of the Economic Development Director to coordinate the concepts, designs, financing, grants, land purchases, and plan development and implementation of City of Bremerton economic and community development and revitalization projects and perform all other duties as assigned by the Mayor or as may be required by law. SECTION 2. Severability. If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION 3. Effective Date. This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. APPROVED by the City Council the day of ,2002 PASSED by the City Council the day of ,2002 CAROL ARENDS, Council President Approved this day of ,2002 CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: KATHLEEN MCCLUSKEY, City Clerk ROGER A. LUBOVICH, City Attorney 2 Economic Development Department PUBLISHED the day of ,2002 EFFECTIVE the day of ,2002 ORDINANCE NO. R:~LEGAL\OrdinancesXAdministration~Economic Development Department.doc 3 Economic Development Department