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HomeMy WebLinkAbout12/20/00 AGENDA CITY COUNCIL MEETING AGENDA DECEMBER 20, 2000 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 - November 29, 2000 (#AB00-284) I B. Resolution No. 2786, Designating the Bank of New York as Safekeeping Agent for City / O Securities (#AB00-285) C. Resolution No. 2787 Establishing Year 2001 Letter of Legislative Intent (#AB00-286) ~ 4. CLAIMS/CHECK REGISTERS 5. COUNCIL MEMBER REPORTS 6. MAYOR'S REPORT 7. LEGISLATIVE REPORT 8. PUBLIC RECOGNITION - (Comments limited to 3-minutes) 9. NEW BUSINESS A. Approval of Amended CDBG Recommendations (#AB00-287) /~ B. Approval of Requested HOME Allocations (#AB00-288) 5-,~ C. Sole Source Lease/Purchase of Invensys Radio-Read Meter Reading System for the ~ ~ Water Utility (#AB00-289) D. Water Service Area Agreement with the Erland Point Water Company, Inc. (#AB00-290) ~'~' E. Memorandum of Understanding Concerning Watershed Planning for Kitsap Peninsula ~ (#AB00-291 ) F. CSO Reduction Plan Update, Amendment No. I to Professional Services Agreement ~7 ~, (#AB00-292) G. Amendment No. 2 to Professional Services Agreement with Marten & Brown (#AB00-293) ~ ~ H. Professional Services Agreement for Mediation Services; and Joint Request by Mayor & ~(~ Council for Expedited Judicial Review (#AB00-294) 10. PUBLIC HEARING A. Appeal of Determination of Non-Significance for the Proposed Rezone along Shore Drive ~ from SF-3 to SF-3 SD (Quasi-Judicial Hearing) (#AB00-295) 11. ADJOURNMENT OF MEETING AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: ORIGINATING DEPT: CITY COUNCIL MINUTES OF MEETING - NOVEHBER 29, 2000 ORIGINATOR: CAROL ARENDS, PRESIDENT DATE SUBMI'FrED: 2. CLEARANCES: (comment on back if necessary) 3. EXHIBITS: ENDORSEMENT INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR: COUNCIL PRESIDENT: ,,"¢ ,:i ~,,--*<~:'~ ;,' :~'-" .... " 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: 8. RECOMMENDATION: 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: P U LLED TAB LED AP P ROVE D D I SAP P ROVE D AM E llJ~ _~__ COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO: O0 "' ~LC 2. CLEARANCE COMMENTS: 4. SUMMARY STATEMENT (continued): 5. IMPACT ON NON-PA$SAGF: 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: TAPES #1734, #1735 & #1736 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES November 29, 2000 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4t" Street, Bremerton, Washington, Wednesday, November 29, 2000, at 5:30 P.M., with Council President Carol Arends presiding. Council members present were Jim Reed, Conrad Esser, David Farr, Mike Shepherd, Ed Rollman, John Law, and Cecil McConnell. Council member Wayne Olsen was absent. Also present were City Attorney Glenna Malanca; Deputy City Clerk Paula Johnston; and Legislative Assistant Lori Smith. The meeting opened with the Pledge of Allegiance led by Council member Cecil McConnell, followed by the invocation given by Pastor Larry Rodgers of Central Kitsap Christian Church. President Arends made the following announcements: (1) Council held a Pre-Council Session in the Council Conference Room to discuss general Council business; followed by a 5-minute Executive Session to "Review Labor Negotiations" and a 15- minute Executive Session to discuss "Potential Litigation"; and (2) Item 9C was added under NEW BUSINESS to discuss "Retention of the Current City Attorney as Special Counsel to the City Council in the Event of a Purported Separation from Employment'. CONSENT AGENDA A. Minutes of Meeting - November 8, 2000 (#AB00-261) #0025 M/S/C/U (McConnell/Shepherd) 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 (Law/McConnell) On November 29, 2000, the Council does approve for payment those vouchers included and further described as follows: 247151 through 247301 in the amount of $459,950.81. COUNCIL MEMBER REPORTS John Law welcomed a new merchant "The Antique Ladies of Manette", a very nice antique shop on East 11th Street. He also acknowledged the Police Department, the Bremerton School District, and Mayor Horton for their participation in a very informative District 3 meeting last week. Ed Rollman was pleased to see a big crowd at the meeting tonight. He reminded the public that Santa & Mrs. Clause were "coming to town" this Friday at approximately 6:00 P.M. Mike Shepherd commented on a 26-mile marathon that he was proud to complete this past weekend. He discussed the budget sessions recently completed, the proposed committees to be formed with citizen participation; a Joint City Council & Planning Commission Session held Monday night; and lastly, the "Smart Growth" workshops held at the Admiral Theater Tuesday afternoon. David Farr thanked the Bremerton Police Department for their efforts in apprehending a very reckless driver within minutes after being reported by a concerned citizen from his District. TAPES #1734, #1735 & #1736 City Council Reg. Mtg. Minutes November 29, 2000 Page 2 of 7 President Arends also attended the "Smart Growth" conference sponsored by Kitsap County, and complimented the organizers, speakers, as well as the Admiral Theater for being excellent hosts. MAYOR'S REPORT Mayor Horton reiterated comments regarding the outstanding "Smart Growth" conference sponsored by Kitsap County at the Admiral Theater yesterday afternoon, which she considered very "worthwhile" and encouraged anyone to view the taped presentations. She announced the Church of the Nazarene would be hosting 70-minute walk-through presentation of"A Little Town of Bethlehem" for the next two weekends; and encouraged citizens to participate in a blood drive from 12:00 noon to 6:00 P.M. at the Washington Mutual Bank Building on Friday, December 1. On a sad note, she reported that Mr. James Walker, a long-time citizen of Bremerton had recently passed away, and extended condolences to his family. LEGISLATIVE REPORT - There was no report this evening. PUBLIC RECOGNITION Bruce Christo.oherson, Vice President of Ace Paving Company (founded in Bremerton in 1947), announced that both the Company and City of Bremerton received the First Place Quality Award for "The Best City Paving Project" in Western Washington for the Burwell Street Improvement project. Mayor Horton received the award, and thanked Ace Paving Company for their excellent work; and the Washington Asphalt Paving Association, and the Washington Chapter of American Public Works Association for the award. Carol Atkinson reiterated the announcement be Mr. Rollman regarding activities that would begin at 5:30 P.M. downtown along with the arrival of Santa Clause by a fire truck at approximately 6:00 P.M. Del Knauss was proud of the Council for setting legislation, "as they were elected to do", and commented that Glenna Malanca was "one of the best City Attorneys Bremerton has had". H. Emily Moshay disagreed, and was disappointed and upset at how the Mayor has been "attacked for doing her job". Paul Drnjevic agreed with Mr. Knauss that the Council was doing the job they were "elected to do", and referred to an editorial in The SUN. Roy Mclnnis added his comments regarding the recent articles, and that for Bremerton to "come together", the employees of this City will have to work together. Gerry_ Peret was upset at the actions of the Council, but also agreed that the City must pull together. Rob Schniedler provided his comments, and emphasized that it was the job of the Mayor to represent the City; and it was the job of the Council to also represent the City as well as their individual Districts. Wendy Rexson addressed her concerns regarding downtown parking issues. Gordy Byrd provided information on upcoming Kitsap Transit meetings. 9A - APPOINTMENT OF JOAN TAlE TO THE PUBLIC ACCESS CITIZENS ADVISORY COMMI'I-I'EE (#AB00-262): Mayor Horton provided comments to support her recommendation for Joan Tale to be appointed to the Public Access Citizens Advisory Committee. There were no comments from the public. #1335 M/S/C/U (Farr/Rollman) Move to confirm the appointment of Joan Tale to the Public Access Committee. TAPES #1734, #1735 & #1736 City Council Reg. Mtg. Minutes November 29, 2000 Page 3 of 7 9B - MOVING LEGAL DEPARTMENT BUDGET UNDER CITY COUNCIL BUDGET (#AB00-263): This request is for the Council to consider the need to place the Legal Department's budget under the City Council budget to better facilitate the direct of Legal Department communications to the City Council. Ensuring the independence of the City Attorney in providing legal service to the City is an additional motivation for this budget consideration. Paul Drnjevic agreed with this action by the Council to solve the problem of this "unfortunate situation", and commended Glenna Malanca for the work she has done for the City. Jerry_ Van Fossen agreed with the Mayor for not accepting the "withdrawal of the resignation" by the City Attorney, and believed that Glenna Malanca should now have to "reapply" to get back her position. He very much disagreed with the action being taken by the Council. Roy Mclnnis pointed out that this issue was strictly dealing with moving one department's budget under another department's budget, and this was not an issue of any particular "individual". Mr. Reed stated that it was the job of the Council to legislate, set policy, and provide direction to the City. He proposed that this was one step toward keeping the current City Attorney employed by the City. Mr. Farr did not feel this action was good for the City or the right thing to do because, in part, this was a part-time Council that did not have the time or the expertise to deal with administrative issues. He believed the trend for the City was getting better and moving forward and feared this action would interfere with the progress that has been made. Mr. Rollman stated he believed the Council was doing what they had to do to retain a good Department Head, and has not seen any information to justify or support her being forced to leave the City. Mr. McConnell decided that the problem was not the Council, but the Mayor's dislike for the City Attorney. Mr. Law supported this action before the Council, then explained why the Council wants to keep this attorney, and second, what would happen to future Councils if the City loses this attorney. He provided several significant examples why this City must do everything it could to retain this City Attorney. He hoped the mediation efforts would take place in the next few days. Mr. Esser provided his comments of support, emphasizing that this was a matter of "checks and balances". #2318 M/S/C (Reed/Esser) Move to provide for the placement of the Legal Department's budget under the City Council budget during the course of the Council review of the 2001-2002 Budget. Voted in favor of this Motion: Shepherd, Esser, Reed, McConnell, Law, and Rollman Voted opposed to this Motion: Farr Abstained: Arends Motion carried: 6-Yes; l-No; l-Abstention 9C - RETENTION OF THE CURRENT CITY ATTORNEY AS SPECIAL COUNSEL TO THE CITY COUNCIL IN THE EVENT OF A PURPORTED SEPARATION FROM EMPLOYMENT (#AB00-268): The City Council is considering the need to provide for the employment of the current City Attorney as Special Counsel to the City Council, as provided under Section 25 of the City Charter. The need for this consideration is based upon the opposing legal positions taken by the City Council and the Mayor regarding the City Council's November 15 acceptance of the City Attorney's withdrawal of her November 1 resignation, subsequent to the Mayor's November 2 acceptance of the City Attorney's resignation. The proposed employment of the current City Attorney as Special Counsel would become effective contemporaneously with the effective date and time of any separation paperwork relating to the City Attorney's current employment. The City Council continues to maintain its authority under the terms of the City Charter to accept the City Attorney's withdrawal of her resignation. TAPES #1734, #1735 & #1736 City Council Reg. Mtg. Minutes November 29, 2000 Page 4 of 7 Carlos Montgomery was concerned that this action would only provide a City Attorney to the Council and not the whole City; Elizabeth Buell wanted the resignation withdrawn; Roy Mclnni$ was concerned that these actions taken tonight were "illegal"; Sherril Huff-Menees addressed this motion in a broader sense, including how the public perceives the action being taken. She reminded the Council that they must only deal with legislative issues, not administrative duties. Larry_ Dickerson agreed with the previous comments and was embarrassed by these actions. Jerry Van Fossen reiterated his opposition to this action. Tim Arnold provided a comment made by a developer, who was looking at this area, that after reading articles in the paper, he was "glad he would be locating outside the City limits because Bremerton was dysfunctional." Gerry_ Peret suggested both sides go through arbitration before these actions are taken. Paul Drn_ievic supported Glenna Malanca, however, he hoped an answer could be found through mediation. Richard Neff believed there were a lot of "tactical" maneuvers going on, and therefore, agreed that mediation should precede action such as what was before Council on this issue this evening. Mr. Fart agreed that mediation would be adventitious, and "implored" his fellow Council members to step back, and remove themselves from any "personal issues". #0182 M/F (Farr) Move to table this item for one week. Motion failed for lack of a second. Mr. Esser reiterated his previous comments that the Mayor is responsible is for carrying out the policies set by City Council, and cautioned the public to not get all of their information from the newspaper. He provided a recap of the events, which he believed led to this action before the Council this evening. Mr. Rollman added that it takes both sides participating in good faith for any mediation to work, which was an option offered by the Council, but the option was not accepted. Mr. McConnell elaborated on earlier comments made regarding misinformation provided to Council by previous City Attorneys. He clarified this as a "preventative measure" by the Council. He also pointed out that the Bremerton City Charter designates that the City Council, not the Mayor, is the only authoritative body to fire the City Attorney. Mr. Law provided an additional comment on the mediation issue, clarifying that today was the first sincere offer made by the Mayor to accept their previous offers of mediation. Mr. She_oherd stated this action was a contingency provision that will only be enacted if necessary. Mr. Reed added that this action does not cost the City any money, and reiterated that it is only a preventative measure. #0670 M/S/C (Shepherd/Law) Move to provide for the employment of the current City Attorney as Special Counsel to the City Council in the event of separation paperwork becoming effective relating to the City Attorney's current employment. As Special Counsel to the City Council, Glenna Malanca will become employed under the same terms and conditions, including office space and support staff, as under her present employment. Her duties as Special Counsel shall be as assigned by the Council President. A Budget Adjustment and Contract of Employment shall be considered by the Council at its next regular meeting subsequent to the effective date of any separation papers relating to Glenna Malanca's present employment. Until such Budget Adjustment, her position shall be funded from the Legal Department's budget. The City Council stated for the record that they believe City Council has the authority to accept the City Attorney's withdrawal of her resignation, and this action is solely a preventative measure to avoid confusion regarding the current City Attorney's employment status, which the City Council maintains is still the "City Attorney". Voted in favor of this Motion: Esser, Reed, McConnell, Law, Rollman, Shepherd, and Arends TAPES #1734, #1735 & #1736 City Council Reg. Mtg. Minutes November 29, 2000 Page 5 of 7 Voted opposed to this Motion: Farr Motion carried: 7-Yes; l-No 10A- PUBLIC HEARING AND ORDINANCE (FIRST READING) REDUCING MAYOR'S SPENDING AUTHORITY (#AB00-264): The City Council is considering the need to amend Chapter 2.76 of the Bremerton Municipal Code to reduce the Mayor and other employee's spending authority in order to be more informed on the expenditures by the City. It was clarified that the ordinance was amended to pertain only to professional services. Carlos Montgomery was opposed to these actions, which he felt were the result of what only 5 members of the Council wanted. Dave Boynton voiced his concern that this limit to the Mayor's spending authority would affect equipment. Ms. Malanca reiterated that this action would only affect professional services. Larry Dickerson urged the Council not to support this action. Paul Drnjevic provided comments in support of the Council and their approval of this item, but suggested a more realistic limit of $5,000 rather than $1,000. Ms. Malanca in response to previous comments, explained that professional services discussed are very specifically defined in the Purchasing Ordinance, which include "consultants" such as engineering, attorneys architects, or those holding a license to practice their trade. Mr. Esser, Mr. Rollman, Mr. McConnell, and Mr. Law each provided comments in support of this action; balanced by comments in opposition by Mr. Fart. #1585 Amended-M/S/F (Shepherd/McConnell) Move to amend amount of professional services to $0. Voted in favor of this amended Motion: Esser, Reed, and Shepherd Voted opposed to this amended Motion: Fart, McConnell, Law, Rollman, and Arends Amended Motion failed: 3-Yes; 5-No #1605 M/SIC (McConnell/Law) Move to approve the ordinance on first reading, amending Chapter 2.76 of the Bremerton Municipal Code and updating the City's purchasing procedures. Voted in favor of this Main Motion: Esser, Reed, McConnell, Law, Rollman, and Shepherd Voted opposed to this Main Motion: Farr Abstained: Arends Main Motion carried: 6-Yes; l-No; and l-Abstention 10B - PUBLIC HEARING AND ORDINANCE (FIRST READING) VACATING A PORTION OF "O" STREET (#AB00-265): Jeff Shea, Senior Engineer, stated that a petition was provided by Dale & Donna Dahl to vacate a portion of "O" Street from Oyster Bay Avenue to 279-feet east. A hearing date of November 29, 2000 was set by the City Council on October 25, 2000. Posting of the hearing notices, along with mailings to the adjacent property owners have been completed in accordance with state law and the Bremerton Municipal Code. This right-of-way consists of an unimproved section of right-of-way currently used as a vehicle access to the property. The furthest east section of this right- of-way is a deep depression that contains water year round. The vacation is being requested by the abutting property owners to improve the property for development. Specific items for City Council consideration are outlined in the Staff Report. Visuals were shown, and it was additionally pointed out that the property owner, Mr. Lachlan Munro, provided a written letter stating that he did not have any objections with this vacation of the right-of-way. There were no comments from the public. TAPES #1734, #1735 & #1736 City Council Reg. Mtg. Minutes November 29, 2000 Page 6 of 7 #1835 M/S/C/U (Fart/Reed) Move to approve the attached ordinance on first reading, vacating a portion of "O" Street, from Oyster Bay Avenue to 279 feet East. 10C - PUBLIC HEARING AND ORDINANCE (.FIRST READING) REGARDING ANNEXATION OF THE REAL PROPERTY DESCRIBED WITHIN THE ADOPTED PORT BLAKELY SUB-AREA PLAN (#AB00-266}: Warren Olsen a consultant with this project, reiterated that the City of Bremerton, Kitsap County, and Port Blakely Communities have cooperatively prepared and adopted a Three- Party Agreement, which established certain terms and conditions relating to annexation of the Port Blakely Sub-Area Plan, a large parcel of land (approximately 440 acres) located to the west of Kitsap Lake. The City has amended its 1995 Comprehensive Plan and the Zoning Code in such a manner as to facilitate annexation of the Port Blakely Sub-Area. Consequently, the City has received a petition to annex the property from the developer and has forwarded the Notice of Intention of Bremerton Annexation to the Kitsap County Boundary Review Board. Annexation of the property implements the agreed upon provisions of the Three-Party Agreement. A letter from the office of the Suquamish Tribal Attorney was distributed, which provided their testimony in opposition to approval of the Initial Development Agreement between the City of Bremerton and Port Blakely. Lee Wyatt of the Planning Department provided additional comments, and also addressed the questions regarding the legality of this project. He established that it was legal according to the Growth Management Act, which allowed Kitsap County to create this as a "joint planning area" with the City of Bremerton. Carlos Montgomery hoped the citizens did not take the "population allocation" as absolute fact because the City needed this type of growth. Donna Ostervahl also expressed her support for this project. Helen Miller read a letter into the record to voice her concerns over this project, which included her concern that it is unknown how much citizen tax money would be used for this project, and questioned what benefit was this project to Bremerton. Mrs. Miller was asked to provide a copy of her letter so that all of her issues could be addressed. John Adams with Port Blakely Properties, clarified that the population allocation has already been dealt with; then provided additional information to address road construction and maintenance issues; and what the Development Agreement does and doesn't do, particularly regarding SEPA issues, in response to the document received by the Suquamish Tribe. Mr, Shepherd provided comments in support of this project, and pointed out that it was a "model" project. Mr. Reed clarified that the issue of access will still be studied in the future, and was not included in this document. Mr. Fart commented that he was proud to vote in favor of this action. #3715 M/S/C/U (Fart/Reed) Move to approve ordinance on first reading, annexing 440 acres of real property commonly known as the Port Blakely Sub-Area, pursuant to the direct petition method set forth in R.C.W. Chapter 35.13, describing the boundaries thereof; requiring said properties to be assessed and taxed at the same rate and basis as the other property within the City; and fixing the effective date of said annexation. John Law left the meeting at approximately 9:00 P.M. and was not available for the following vote. 10D - PUBLIC HEARING AND ORDINANCE (FIRST READING) REGARDING ADOPTION OF INITIAL DEVELOPMENT AGREEMENT FOR THE PROPERTY COMMONLY KNOWN AS THE PORT BLAKELY SUB-AREA PLAN. WHICH ESTABLISHES A MIXED USE DISTRICT (MXD) ZONING CLASSIFICATION FOR THE PROPERTY UPON ANNEXATION (#AB00-267): Warren, Olsen a consultant with this project, reiterated that the City of Bremerton, Kitsap County, and Port Blakely Communities have cooperatively prepared and adopted a Three-Party Agreement, which TAPES #1734, #1735 & #1736 City Council Reg. Mtg. Minutes November 29, 2000 Page 7 of 7 established certain terms and conditions relating to annexation of the Port Blakely Sub-Area Plan, a large parcel of land (approximately 440 acres) located to the west of Kitsap Lake. The City has amended its 1995 Comprehensive Plan and the Zoning Code in such a manner as to facilitate annexation of the Port Blakely Sub-Area. Consequently, the City has received a petition to annex the property from the developer and has forwarded the Notice of Intention of Bremerton Annexation to the Kitsap County Boundary Review Board. Adoption of the Initial Development Agreement and classification of the Port Blakely Sub-Area is a Mixed Use District (MXD) zone upon annexation implements agreed upon provisions of the adopted Port Blakely Sub-Area Plan and the Three-Party Agreement. In closing, the content of the document was briefly summarized. Helen Miller clarified that the letter from the Suquamish Tribe was made a part of the official record, then raised questions regarding the recent ruling on Chico Creek. Warren Olsen responded that the letter from Suquamish Tribe was handed out during the previous issue. He responded that he was not familiar with the ruling on Chico Creek, however, but noted that substantial studies would be done. Mr. Adams noted that he was familiar with a possible ESA ruling on Deer Creek, once rules are established next year, all projects must then comply with those rules. #0175 M/S/C/U (McConnell/Reed) Move to approve ordinance on first reading, zoning the site commonly known as the Port Blakely property upon annexation as authorized by the City's Comprehensive Plan by Ordinance No. 4722; applying the "Mixed Use District" (MXD) zone classification for the site as established by Ordinance No. 4723; and adopting an Initial Development Agreement as part of the site specific zoning. With no further business, meeting concluded at 9:10 P.M. Prepared and Submitted by: LORI SMITH, Legislative Assistant Attest: PAULA JOHNSTON, Deputy City Clerk CAROL ARENDS, City Council President City of Bremerton CNPJIIslcge c: Normal Distribution File AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: RESOLUTION NO. ~;~ FORAGENDA OF: Dec. 20,2000 ORIGINATING DEPT: Treasu~~ Designating the Bank of New York as Safekeeping Agent ORIGINATOR: Rich HaVana for City Securities. DATE SUBMITTED: Dec. 6, 2000 2. CLEARANCES: Comment of back if necessary) 3. EXHIBITS: Dir. Admin. Services 1 City Attorney ~ . Authorization Form Fiscal & Budg~_'~---~'~~'~'~: '' ~ "; ~ ,-~..~,~...x Statewide Safekeeping Contract Operations ~ ENDORSEMEI~S ~ INFORi~IATION,, , APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The State Treasurer has conducted an RFP process and subsequently negotiated a state-wide contract for securities custody services. This state-wide contract offers pricing and other contract terms which would be unobtainable by the City acting alone. Approval of the proposed resolution is a necessary precondition to the City participating in the state-wide contract. 8. RECOMMENDATION: Motion to approve Resolution No.~" ,~ c~/ to allow City participation in the state-wide contra( safekeeping. 9. RESPONSIBLE OFFICIAL: Treasurer ENFORCEMENT OFFICIAL: Mayor EXPIRATION DATE: March 31,2004 REVIEW DATE: N/A 10. NOTICE OF ACTION COUNcILPULLED DIRECTIvE:TABLED APPROVED DISAPPROVED AMENDED 3 B 11. AGENDA BILL NO: 00 -' 2 <~ ~' Io 2. CLEARANCE COMMENTS: 5. IMPACT ON NON-PASSAGE: The City will continue with its current arrangements for securities safekeeping. 6. IMPACT ON STAFFING~ BUDGETS, FACILITIES~ EQ. UIPMENT OR OTHER RESOURCES: Included in 2001 - 2002 budget. 7. RESEARCH SOURCES: State Treasurer. SOI UT O ;2-7 A RESOLUTION of the City Council of Bremerton, Washington designating Bank of New York as an Agent of the City of Bremerton for the safekeeping of securities. WitEREAS, the City of Bremerton is desirous of entering into a safekeeping agreement in order to provide for the security of its investments, and WHEREAS, a certification of corporate authority is a necessary precondition of entering into said agreement, now therefore BE IT RESOLVED BY THE BREMERTON CITY COUNCIL: TItAT Bank of New York be and hereby is designated an agent of the City of Bremerton for the safekeeping of securities. Be it further resolved, that instructions to the agent shall be given by the officers named on the attached agreement, or their successors. PASSED by the City Council of the City of Bremerton this day of ,20 CAROL ARENDS, Council President The BANK OF NEW YORK CERTIFICATE OF AUTHORIZED INDIVIDUALS GOVERNMENT AGENCIES Account Name: City of Bremerton Account#: I certify that I am the Clerk of City' of Bremerton , formed and existing under the laws of State of Washington I further certify that in accordance with the authority granted by and other applicable law (Attach a copy of appropriate ordinance, council minutes or other source of documented authority). The Bank of New York has been designated a cus t odi an (agent/custodian) under the custodial agreement, a copy of which is attached to this authorization. I further certify that the persons holding the position(s) of Treasurer & Assistant Treasurer may conduct business within the duties designated by state statute and local code and shall have the authority to instruct The Bank of New York and to execute such further documents and instruments as may be required or useful. The Bank of New York may rely on instructions given by any one of the Authorized Persons named below, who shall have the authority to obligate this public entity to contracts and agreen~ents with The Bank of Richard Hanna, City Treasurer Name/Position ~ignature -' ~ Catherine Johnson, Asst. City /t~/~-Z~o'_ (~~£~7 / Name/Position Treasurer- ~ignat~re T /~[ ! v _ Name/Position Signature Name/position Signature The above list of Authorized Persons may be amended from time to time in writing by certification executed by the undersigned or his/her successors in office. Witness my hand and the official seal the day of ,19 ., Signature: Name: Kathle~n McCluskey (OFFICIAL SEAL) Title: City Clerk 3/9/00 u:,~o~,s~^cc'moc~s,o.~oc 13 WASHINGTON STATEWIDE CONTRACT For Security Custody Services December, 2000 SaI~koepmg Con~a'act I ~ WASHINGTON STATEWIDE CONTRACT FOR SECURITY CUSTODY SERVICES Table of Contents GENERAL PROVISIONS .............................................................................................. 1 1. CONTRACTING PARTIES ......................................................................................................... 1 2. HEREBY WlTNESSETH: ............................................................................................................ 1 3. ADDITIONAL SERVICES ........................................................................................................... 1 4. CONSIDERATION ...................................................................................................................... 1 5. APPOINTMENT OF CUSTODIAN .............................................................................................. 2 6. AGREEMENT .............................................................................................................................. 2 7. PERSONAL LIABILITY .............................................................................................................. 3 8. HOLD HARMLESS AND INDEMNIFICATION ......................................................................... 3 9. CONFLICT AND SEVERABILITY ............................................................................................. 4 10. NONDISCRIMINATION AND AFFIRMATIVE ACTION ........................................................ 4 11. GIFTS AND GRATUITIES ........................................................................................................ 5 12. RIGHTS AND REMEDIES ........................................................................................................ 5 13. PERFORMANCE ....................................................................................................................... 6 14. GOVERNING LAW ................................................................................................................... 6 15. SUBCONTRACT/ASSIGNMENT ............................................................................................. 6 DEFINITIONS ................................................................................................................ 6 16. DEFINITIONS ........................................................................................................................... 6 SCOPE OF SERVICES .................................................................................................. 7 17. SCOPE OF SERVICES .............................................................................................................. 7 AGREEMENT TERM AND TERMINATION ............................................................... 8 18. TERM OF AGREEMENT AND SURVIVORSHIP OF TERMS ................................................. 8 19. TERMINATION AND REMEDIES ........................................................................................... 8 20. FORCE MAJEURE .................................................................................................................. 11 21. CONFLICT OF INTEREST ...................................................................................................... 11 CONTRACT ADMINISTRATION .............................................................................. 12 22. INCORPORATED DOCUMENTS ........................................................................................... 12 23. ORDER OF PRECEDENCE ..................................................................................................... 12 24. ENTIRE AGREEMENT ........................................................................................................... 13 25. LIMITATION OF AGENCY'S AUTHORITY .......................................................................... 13 26. AGENCY CONTRACT ADMINISTRATOR ........................................................................... 13 27. BANK'S ACCOUNT MANAGER ............................................................................................ 13 28. CHANGES ............................................................................................................................... 14 29. DISPUTES ............................................................................................................................... 14 30. ADVERTISING ....................................................................................................................... 14 31. CONSENT ............................................................................................................................... 14 AGENCY RESPONSIBILITIES ........ 15 32. PROTECTION OF PROPRIETARY AND CONFIDENTIAL INFORMATION ....................... 15 33. FUNDS TRANSFER AUTHORIZATION AGREEMENT ....................... 15 BANK RESPONSIBILITIES ........................................................................................ 15 34. REGISTRATION WITH THE DEPARTMENT OF REVENUE ............................................... 15 35. LICENSING AND ACCREDITATION STANDARDS ............................................................ 15 36. WORKERS' COMPENSATION INSURANCE COVERAGE ........................................ 15 37. CONFIDENTIALITY OF AGENCY RECORDS ...................................................................... 16 38. AUDITING .............................................................................................................................. 16 39. BANK COMMITMENTS, WARRANTIES, AND REPRESENTATIONS ................................ 16 40. YEAR 2000 COMPLIANCE .................................................................................................... 17 41. PRICE INCREASES ................................................................................................................ 18 CUSTODY PROVISIONS ............................................................................................ 18 42. CUSTODY OF SECURITIES ................................................................................................... 18 PAYMENT PROVISIONS ........................................................................................... 26 43. PAYMENTS ............................................................................................................................ 26 44. TAXES .................................................................................................................................... 26 45. DAMAGES ........................... 26 CONTRACT EXECUTION .......................................................................................... 27 46. COUNTERPARTS ................................................................................................................... 27 47. SIGNATURE BLOCKS ........................................................................................................... 28 Washington Statewide Custody Contract WASHINGTON STATEWIDE AGREEMENT FOR CUSTODY SERVICES GENERAL PROVISIONS 1. CONTRACTING PARTIES THIS AGREEMENT is entered into by and between CITY OF BREMERTON , STATE OF WASHINGTON, hereinafter referred to as the "Agency" and The Bank of New York, hereinafter referred to as the "Custodian" or the '~Bank." 2. HEREBY WITNESSETH: The State Of Washington, acting by and through the OFFICE OF THE TREASURER of the STATE OF WASHINGTON, issued a Request for Proposal (RFP), dated November 23, 1999 for the purpose of obtaining proposals for providing statewide custody services. As a result of that process, the State Treasurer has designated the Bank as the Statewide Custodian, and the Bank has agreed to provide Statewide Custody Services, hereinafter referred to as the "Services," as described in Bank's proposal, attached hereto at the prices stated therein, in accordance with the terms of this Agreement. 3. ADDITIONAL SERVICES The Parties agree that additional services, appropriate to the scope of this Agreement, may be added to this Agreement by an instrument in writing and only with the written consent of both parties. Such writing shall include a specific description of the additional Services, pricing and additional terms and conditions as relevant. The additional Services shall be available under the same terms and conditions established herein except as specifically amended between the parties. 4. CONSIDERATION In consideration whereof, the mutual promises made to each other, as hereinafter set forth, the parties further agree as follows: The Agency and the Bank agree that this Agreement is the complete and exclusive statement between the parties which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement except as included by attachment to this Agreement. To the extent that any terms and conditions are in conflict with any other terms and conditions, the order of authority is as follows: (1) these General Provisions are controlling, followed by; (2) the Office of the State Treasurer RFP for Statewide 1 Washington Statewide Custo~ Contract Securities Custody Services; and (3) the Bank's Proposal, inclusive of related Exhibits and Schedules. Unless otherwise agreed in writing, all amendments, addenda, and orders signed during the life of this Agreement shall be governed by these General Provisions. Any notice or demand which under this Agreement or applicable law must or may be given by the Bank, or Agency shall be in writing, properly addressed and, as an alternative to personal delivery, made by the most expeditious means available, with due regard given to the time sensitivity of the notice or demand being made. if to the Bank, at: if to the Agency, at: The Bank of New York City of Bremerton One Wall Street New York, NY 10286 Rich Hanna Attention: Government Agencies Department 239 4th St with a copy to: Bremerton, Wa 98310 BNY Western Trust Company 601 Union Street Suite 520 Seattle, Washington 98101-2321 5. APPOINTMENT OF CUSTODIAN The Agency hereby appoints the Bank as Custodian for certain assets of the Agency and authorizes Custodian to hold such assets in registered form in its name or the name of its nominees. All property delivered to the Bank, its agents or subcustodians, shall be held and dealt with as herein provided. The Bank shall have no responsibility or liability for the acts or omissions of prior Custodians, and shall not be responsible for any property of the Agency not delivered to the Bank, its agents or subcustodians, and shall only be obligated to accept such property that is in street name or other good delivery form. The Bank hereby accepts this appointment. 6. AGREEMENT NOW THEREFORE the Agency hereby awards to the Bank this Agreement for Custody Services, hereinafter referred to as "Services," as listed and described in the RFP for Statewide Custody Services as Exhibit A and acknowledged in the Bank's proposal as Exhibit B both of which are on file at the Office of the State Treasurer, and by this reference made a part hereof, as though completely set forth l~erein, subject to and in accordance with the terms of this Agreement. 2 Washington Statewide Custody_ Contract 7. PERSONAL LIABILITY It is agreed by and between the parties hereto that in no event shall any official, officer, employee or agent of the Agency be in any way personally liable or responsible for any covenant or agreement herein contained whether expressed or implied, nor for any statement or representation made herein or in any connection with this agreement. 8. HOLD HARMLESS AND INDEMNIFICATION 8.1 The Bank shall be financially responsible 0iable) for any direct money damages suffered by the Agency which are caused by the Bank's own negligence, fraud, or failure to exercise Due Care, as defined in Section 42.9.1, in the Bank's performance of its duties under this Agreement. For the purposes of tNs Agreement, direct money damages shall include those situations where interest charges are incurred by the Agency or any loss of earnings occurs that would otherwise have been realized by the Agency through an overnight investment of funds, and where such interest charges or loss of earnings are caused by the Bank's own negligence, fraud, or failure to exercise Due Care, as defined in Section 42.9.1. 8.2 The Bank shall not be financially responsible (liable) for any damages or for any losses to the Agency, unless such losses constitute direct money damages caused by the Bank's own negligence, fraud, or failure to exercise Due Care, as defined in Section 42.9.1, in the Bank's performance of its duties under this Agreement. Notwithstanding any other document or provision in this Agreement to the contrary, but subject to Section 8.1 hereof, in no event shall the Bank be liable for indirect, incidental, consequential or special damages regardless of the form of action and even if the same are foreseeable, except that the foregoing provisions of this sentence shall not limit the Bank's liability for any punitive damages. 8.3 Each party to this Agreement agrees to indemnify and hold harmless the other party, to the extent authorized by law, from all losses (excluding attorney's fees and expenses) which relate to or result from lawsuits brought by non-parties to this Agreement from activities covered by this Agreement from: 8.3.1 A failure by the indemnifying party or its subsidiaries, affiliates, agents, subcontractors, representatives or employees to comply with any applicable federal, state or local law, rule or regulation; 8.3.2 A negligent act or omission or the breach of this Agreement (as defined in Section 19.3) by the indemnifying party, its subsidiaries, affiliates, agents, subcontractors, representatives or employees; or a failure to exercise due care as defined in Section 42.9.1 herein. 3 Washington Statewide Custody Contract 8.3.3 Fraudulent or intentional misconduct by the indemnifying party or its agents, subcontractors, representatives or employees. 8.3.4 Nothing in this section shall be construed to mean either party is prevented from commencing a legal action against the other. 8.4 Notwithstanding any other document or provision in this Agreement to the contrary, the above indemnity by the Bank to the Agency shall be limited to direct money damages and shall relate only to the Bank's own actions or omissions which constitute negligence, fraud, or failure to exercise Due Care. 9. CONFLICT AND SEVERABILITY 9.1 CONFLICT In the event of conflict between contract documents and applicable laws, codes, ordinances or regulations, the most stringent or legally binding requirement shall govern and be considered a part of this contract to afford the Agency maximum benefits. 9.2 SEVERABILITY Any provision of this document found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of the document. 10. NONDISCRIMINATION AND AFFIRMATIVE ACTION During the performance of this Agreement, the Bank shall comply with all federal and state nondiscrimination statutes and regulations. These requirements include, but are not limited to: 10.1 Nondiscrimination in Employment: The Bank shall not discriminate against any employee or applicant for employment because of race, color, sex, religion, national origin, creed, marital status, age, or the presence of any sensory, mental or physical disability. This requirement does not apply, however, to a religious corporation, association, educational institution or society with respect to the employment of an individual of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities. 10.1.1 The Bank shall take affirmative action to ensure that employees are employed and treated during employment without discrimination because of their race, color, religion, national origin, creed, marital status, age, or the presence of any sensory, mental or physical disability. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment selection for training, including apprenticeships and volunteers. 4 Washington Statewide Custody Contract 10.2 Nondiscrimination in Client Services: The Bank shall not, on grounds of race, color, sex, religion, national origin, creed, marital status, age or the presence of any sensory, mental or physical disability: 10.2.1 Deny an individual any services or other benefits provided under this contract; 10.2.2 Provide any service(s) or other benefits to an individual which are different, or are provided in a different manner, from those provided to others under this contract; 10.2.3 Subject an individual to segregation or separate treatment in any manner related to the receipt of any service(s) or other benefits provided under this contract; or, 10.2.4 Deny any individual an opportunity to participate in any program provided by this contract through the provision of services or otherwise, or afford any opportunity which is different from that afforded others under this contract. 10.3 The Bank, in determining (1) the types of services or other benefits to be provided or (2) the class of individuals to whom, or the situation in which, such services or other benefits will be provided or (3) the class of individuals to be afforded an opportunity to participate in any services or other benefits, will not utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, sex, religion, national origin, creed, marital status, age or the presence of any sensory, mental or physical disability. 10.4 Noncompliance With Nondiscrimination Requirements: In the event of the Bank's noncompliance or refusal to comply with the nondiscrimination requirements, this contract may be rescinded, canceled or terminated in whole or in part, and the Bank may be declared ineligible for further contracts with the Agency. The Bank shall, however, be given a reasonable time in which to cure the noncompliance. Any dispute may be resolved in accordance with the Disputes section set forth in this Agreement. 11. GIFTS AND GRATUITIES In accordance with RCW 42.23 Code of Ethics for Municipal Officers-Contract Interests, it is unlawful for any person to accept, directly or indirectly, any compensation, gratuity, or reward in connection with this contract from any person beneficially interested therein. 12. RIGHTS AND REMEDIES In the event of any claim for default or breach of contract, no provision in this document nor in the Bank's proposal for services shall be construed, expressly or by implication, as 5 Washington Statewide Custody. Contract a waiver by the Agency of any right to insist upon the strict performance of any term or condition of the contract or to exercise or delay the exercise of any right or remedy provided in the contract or by law, or as the acceptance of (or payment for) materials, equipment or services, or to release the Bank from any responsibilities or obligations imposed by this contract or by law. 13. PERFORMANCE Acceptance by the Agency of unsatisfactory performance with or without objection or reservation shall neither waive the right to claim damage for breach nor constitute a waiver of requirements for satisfactory performance of any obligation remaining to be performed by Bank. 14. GOVERNING LAW This Agreement shall be governed in all respects by, and construed in accordance with, the law and statutes of the State of Washington. The venue of any action hereunder shall be exclusively in the Superior Court for Kitsap County, Washington. The Bank, by execution of this contract, acknowledges the jurisdiction of the courts of the state o£ Washington in this matter. 15. SUBCONTRACT/ASSIGNMENT The Bank shall not subcontract or assign its obligations under this contract without the prior written consent of the Contract Administrator, provided the Bank may enter into subcontracts, agreements and understandings with BNY Western Trust Company, a wholly owned subsidiary of The Bank of New York Company, Inc. whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. The Bank shall be responsible to ensure that all requirements of the contract shall be communicated to any and all subcontractors. Substitution of another financial institution to act as the Bank under this Agreement may occur in the event of a takeover, merger, or acquisition. In this event, the Successor Bank shall provide an automatic continuation of all terms of this Agreement, provided the Successor Bank can meet all required terms of the Agreement. However, the Agency reserves the right to terminate the contract in the event a Successor Bank is substituted, after providing 60 calendar days written termination notice. DEFINITIONS 16. DEFINITIONS Definitions as used throughout this Agreement shall have the meanings set forth below: "Exhibit A" shall mean the Request For Proposal (RFP) for Statewide Custody Services issued by the Office of the State Treasurer, dated November 23, 1999. 6 Washington Statewide Custody Contract "Exhibit B" shall mean the Bank's proposal in response to the State RFP for Statewide Custody Services. "Exhibit C" shall mean the Bank's schedule of fees for all Services provided under this Agreement. '~Exhibit D" shall mean the Funds Transfer Authorization Agreement which shall run concurrently with this Agreement. "Exhibit E" shall mean the Agency's schedule of required Services provided under this Agreement. "Agency Contract Administrator" shall mean the staff person appointed by the Agency to administer this Agreement on behalf of the Agency. "Bank" shall mean The Bank of New York. It shall also include any subcontractor retained by the Bank as permitted under the terms of this Agreement. "Bank's Account Manager" shall mean an employee of the Bank who is permanently assigned as the primary contact person whom the Agency Contract Administrator shall work with for the duration of this Agreement. "Custody Services" may also be referred to as "Services," and shall be inclusive of all services, including associated support services and maintenance provided pursuant to this Agreement. "Deposito _ry" shall include the Federal Reserve/Treasury book-entry system for receiving and delivering securities, the Depository Trust Company, and any other securities depository, book-entry system or clearing agency (and their respective successors and nominees) authorized to act as a securities depository, book-entry system or clearing agency pursuant to applicable law. "Subcontractor" shall mean one not in the employment of the Bank, who is performing all or part of those Services under this Agreement under a separate contract with the Bank. The term "subcontractor" means subcontractor(s) of any tier. "RCW" shall mean the Revised Code of Washington (Washington State Law). SCOPE OF SERVICES 17. SCOPE OF SERVICES The Bank agrees to provide custody, record keeping and cash management, as further described in the Office of the State Treasurer RFP (Exhibit A) and the Bank's Proposal (Exhibit B), under the terms of this Agreement, serving as the Statewide Custodian of Washington State. 7 Washington Statewide Custody. Contract AGREEMENT TERM AND TERMINATION 18. TERM OF AGREEMENT AND SURVIVORSHIP OF TERMS This Agreement shall commence on December 5, 2000, and continue until 3/31/2004. The Bank is not obliged to offer this contract for a time period of less than one year, nor is the Bank obliged to offer the contract with a termination date exceeding the termination date of its appointment as the Statewide Custodian. The term of this Agreement may be extended for additional contract periods or portions thereof, whereby the total contract period with extensions shall not exceed six (6) years, PROVIDED: the extension shall be by mutual agreement between the Agency and the Bank, and by the Agency giving written notice of the extension to the Bank not less than 180 days prior to the termination date of this Agreement. 19. TERMINATION AND REMEDIES 19.1 TERMINATION FOR CONVENIENCE The Agency may terminate this contract, in whole or in part, at any time and for any reason by giving 90 calendar days written termination notice to the Bank and the State Treasurer. The Bank may terminate this contract, by giving 180 days written termination notice to the Agency and the State Treasurer. 19.2 TERMINATION FOR REDUCTION OF FUNDING OR WITHDRAWAL OF AUTHORITY In the event that either funding from the Agency or other sources is withdrawn, reduced, or limited, or the authority of the Agency to perform any of its duties is withdrawn, reduced or limited in any way aiter the effective date of this Agreement and prior to its normal completion, the Agency may terminate this Agreement, in whole or in part, at any time by giving 60 calendar days written termination notice to the Bank. 19.3 TEKMINATION FOR BREACH Except in the case of delay or failure resulting from circumstances beyond the control of and without the fault or negligence of the Bank or of the Bank's suppliers or subcontractors, the Agency shall be entitled, by written or verbal notice, to cancel this contract in its entirety or in part, for breach of any of the terms herein, and to retain all other rights against the Bank by reason of the Bank's breach as provided by law. A breach shall mean one or more of the following events: (1) the Bank fails to perform the services by the time and date required and such failure is not caused by a force majeure event; (2) the Bank breaches any warranty, or fails to perform or comply with any term or agreement in the contract; (3) the Bank fails to exercise Due Care as to any aspect of this Agreement, with Due Care being defined in Section 42.9.1; (4) the Bank Washington Statewide Custody Contract makes any general assignment for the benefit of creditors; (5) the Bank becomes insolvent or in an unsound financial condition so as to endanger performance hereunder; (6) the Bank becomes the subject of any proceeding under any law relating to bankruptcy, insolvency or reorganization or relief from debtors; or (7) any receiver, trustee or similar official is appointed for the Bank or any of the Bank's property. If it is subsequently found that the Bank was not in breach, the rights and obligations of the parties shall be the same as if a Notice of Termination had been issued pursuant to subparagraph 19.1. The Agency Contracting Officer shall issue a written notice of breach providing a period not to exceed 30 days in which the Bank shall have an opportunity to cure. Time allowed for cure shall not diminish or eliminate the Bank's liability for damages. If the breach remains, after the Bank has been provided the opportunity to cure, the Agency may do one or more of the following: 19.3.1 Exercise any remedy provided by law; 19.3.2 Terminate this contract and any related contracts or portions thereof, by written or verbal notice; 19.3.3 Seek damages. 19.4 TERMINATION BYMLrrUAL AGREEMENT The Agency and the Bank may terminate this contract in whole or in part, at any time, by mutual agreement. 19.5 TERMINATION PROCEDURE Upon termination of this contract the Agency, in addition to any other fights provided in this contract, may require the Bank to deliver to the Agency any property specifically produced or acquired for the performance of such part of this contract as has been terminated. The Agency shall pay to the Bank the agreed upon price, if separately stated, for completed work and services accepted by the Agency, and the amount agreed upon by the Bank for (a) completed work and services for which no separate price is stated, (b) partially complete work and services, (c) other property or services which are accepted by the Agency, and (d) the protection and preservation of property, unless the termination is for default, in which case the Agency shall determine the extent of the liability of the Agency. Failure to agree with such determination shall be a dispute within the meaning of the "Disputes" section of this contract. The Agency may withhold from any amounts due to the Bank such sum as the Agency determines to be necessary to protect the Agency against potential loss or liability. 9 Washington Statewide Custody. Contract The rights and remedies of the Agency provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. 19.6 TERMINATION-RELATED OBLIGATIONS ANTECEDENT TO DATE OF TERMINATION Upon nearing the end of the final term of this agreement, and without respect to either the cause or time of such termination, the Bank shall take all reasonable and prudent measures to facilitate the transition to a successor provider's system. The Bank shall provide, at any time during the nine (9) months preceding termination, such information about the Bank's systems as will be reasonably required by the Agency and/or the successor for purposes of planning the transition and conversion to the successor's system. 19.7 OBLIGATIONS UPON TERMINATION After receipt of a notice of termination, and except as otherwise directed by the Agency Contract Administrator, the Bank shall: 19.7.1 Stop work under the contract on the date, and to the extent, specified in the notice; 19.7.2 Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the contract as is not terminated; 19.7.3 Assign to the Agency, in the manner, at the times, and to the extent directed by the Agency Contract Administrator all of the rights, titles, and interest of the Bank under the orders and subcontracts so terminated, in which case the Agency has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; 19.7.4 Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Agency Contract Administrator to the extent he or she may require, which approval or ratification shall be final for all the purposes of this clause; 19.7.5 Transfer title to the Agency and deliver in the manner, at the times, and to the extent, if any, as directed by the Agency Contract Administrator, any property which, if the contract had been completed, would have been required to be furnished to the Agency; 19.7.6 Complete performance of such part of the work as shall not have been terminated; and 10 Washington Statewide Custody. Contract 19.7.7 Take such action as may be necessary, or as the Agency Contract Administrator may direct, for the protection and preservation of the property related to this contract which is in the possession of the Bank and in which the Agency has or may acquire an interest and to transfer that property to the successor Custodian. By such termination, neither the Agency nor the Bank may nullify obligations already incurred for performance or failure to perform prior to the date of termination. 20. FORCE MAJEURE 20.1 DEFINITION Neither party shall be liable to the other or deemed in default under this contract if and to the extent that such party's performance of this contract is prevented by reason of force majeure. The term "force majeure" means an occurrence that is beyond the control of the party affected and could not have been avoided by exercising reasonable diligence. Force majeure shall include acts of God, war, riots, strikes, fire, floods, earthquakes, epidemics, or other similar occurrences. 20.2 ALLOCATION OF SEKVICE When force majeure affects only part of the Bank's capacity to perform, the Bank may allocate services among its customers, including regular customers not included in this Agreement, in any manner which is fair and reasonable. 20.3 NOTIFICATION If either party is delayed by force majeure, said party shall provide reasonable notice that there will be delay or non- delivery of reports or services. The notification shall provide evidence of the force majeure to the satisfaction of the other party. Such delay shall cease as soon as practicable and written notification of same shall be provided. The time of completion shall be extended by contract modification for a period of time equal to the time that the results or effects of such delay prevented the delayed party from performing in accordance with this contract. 20.4 RIGHTS RESERVED The Agency reserves the right to cancel the contract and/or purchase services from the best available source during the time of force majeure, and Bank shall have no recourse against the Agency. 21. CONFLICT OF INTEREST 21.1 The Bank warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this contract. 11 Washington Statewide Custody Contract 21.2 The Agency may terminate this Agreement, by written notice to the Bank, if it is found after due notice and examination that there is a violation by Bank of.' 21.2.1 RCW 42.23 Code of Ethics for Municipal Officers-Contract Interests or any other similar statute involving the Bank in its performance under this Agreement. 21.3 In the event this Agreement is terminated as provided above, the Agency shall be entitled to pursue the same remedies against the Bank as it could pursue in the event of a breach of this Agreement by the Bank. The rights and remedies of the Agency provided by this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. CONTRACT ADMINISTRATION 22. INCORPORATED DOCUMENTS This Agreement shall consist of the terms and conditions as set forth herein and the following documents which are incorporated herein by reference: 22.1 "Exhibit A" - The Request For Proposal (RFP) for Statewide Custody Services, issued by and on file at the Office of the State Treasurer, dated November 23, 1999. 22.2 "Exhibit B" - The Bank's proposal in response to the State RFP for Statewide Custody Services, also on file at the Office of the State Treasurer. 22.3 "Exhibit C" - The Bank's schedule of fees for all Services provided under this Agreement. 22.4 "Exhibit D" - The Funds Transfer Authorization Agreement which shall run concurrently with this Agreement. 22.5 "Exhibit E" - The Agency's schedule of required Services provided under this Agreement. 23. ORDER OF PRECEDENCE 23.1 The headings used herein are inserted for convenience only and shall not control nor affect the meaning or construction of any of the provisions. 23.2 If any provision of this Agreement shall be deemed to be in conflict with any statute or rule of law, such provisions shall be deemed modified to 12 Washington Statewide Custody Contract conform to said statute or rule of law. In the event of any inconsistency in this Agreement, the inconsistency shall be resolved in the order of precedence stated below: 23.2.1 Applicable Federal and State Statutes and Regulations. 23.2.2 The Terms and Conditions of this Agreement. 23.2.3 Exhibit A The Request For Proposal (RFP) for Statewide Custody Services issued by the Office of the State Treasurer, dated November 23, 1999, Exhibit B - The Bank's proposal in response to the State RFP for Statewide Custody Services, and Exhibit E - The Agency's schedule of required Services provided under this Agreement. 24. ENTIRE AGREEMENT This document, including all addenda and subsequently issued change notices, comprises the entire agreement between the Agency and the Bank and shall be governed by the laws of the State of Washington incorporated herein by reference. 25. LIMITATION OF AGENCY'S AUTHORITY Only the Agency Contracting Officer, or delegate by writing, shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Agreement. Furthermore, any alteration, amendment, modification, or waiver of any clause or condition of this Agreement is not effective or binding until made in writing and signed by the Agency and the Bank unless otherwise provided herein. 26. AGENCY CONTRACT ADMINISTRATOR The Agency shall appoint an individual who will be the Contract Administrator for this Agreement and will provide oversight of the activities conducted hereunder. The Agency Contract Administrator will manage this Agreement on behalf of the Agency, and will be the principal point of contact for the Bank concerning Bank's performance hereunder. The Agency shall notify Bank, in writing, when there is a change in staffing and a new Contract Administrator is assigned to this Agreement. 27. BANK'S ACCOUNT MANAGER The Bank shall appoint an individual who will be the Account Manager for the Agency account. The Bank's Account Manager will be the principal point of contact for the Agency concerning the Bank's performance hereunder. The Bank's Account Manager will also serve as the focal point for business matters, support coordination, and administrative activities. The Bank shall notifij the Agency in writing if a new Account Manager is assigned. 13 Washington Statewide Custody Contract 28. CHANGES No modifications or amendments to this Agreement shall be effective unless it is in a written amendment signed by an authorized officer of the Bank and the Agency Contract Administrator. 29. DISPUTES 29.1 Except as otherwise provided in this Agreement, when a bona fide dispute concerning a question of fact arises between the Agency and the Bank, and it cannot be resolved, either party may initiate the dispute resolution procedure provided herein. 29.2 Time is of the essence in resolving disputes. The initiating party shall reduce its description of the dispute to writing and deliver it to the responding party. The responding party must respond in writing within two (2) Agency working days. 29.2.1 Then, both parties shall have three (3) Agency working days to negotiate in good faith to resolve the dispute. 29.3 Both parties agree to exercise good faith in dispute resolution and to avoid arbitration and litigation whenever reasonably possible. Nothing in this Agreement shall prevent either party, after the expiration of the three (3) day period in Section 29.2.1, from pursuing other methods of dispute resolution. 29.4 The Agency and the Bank agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this Agreement which are not affected by the dispute. 30. ADVERTISING The Bank shall not advertise or publish information concerning this contract in any form or media without prior written consent from the Agency. 31. cONSENT Both parties agree that whenever a party's consent is required under the terms of this Agreement, that consent shall not be unreasonably delayed or withheld. 14 Washington Statewide Custody, Contract AGENCY RESPONSIBILITIES 32. PROTECTION OF PROPRIETARY AND CONFIDENTIAL INFORMATION Any specific information that is contained in the Bank's Proposal (Exhibit B) that is confidential or proprietary, must be clearly identified by the Bank by stamping "CONFIDENTIAL" on the lower right hand comer of the corresponding page(s). A blanket designation of the entire proposal as being confidential will be disregarded. If a request is made to view Bank's proprietary information, the State Treasurer and the Agency will comply with the Public Records Act, chapter 42.17 RCW. 33. FUNDS TRANSFER AUTHORIZATION AGREEMENT The Agency shall execute a Funds Transfer Authorization Agreement with the Bank. This agreement shall remain in effect for the duration of this Agreement. The Transfer Agreement is attached hereto as Exhibit D. In the case of any conflict between the Funds Transfer Authorization Agreement and this Agreement, this Agreement shall take precedence. BANK RESPONSIBILITIES 34. REGISTRATION WITH THE DEPARTMENT OF REVENUE The Bank shall complete registration with the Department of Revenue, General Administration Building, Olympia, Washington 98504, and be responsible for payment of all taxes due on payments made under this contract. 35. LICENSING AND ACCREDITATION STANDARDS The Bank shall comply with all applicable local, state, and federal licensing requirements and standards necessary in the performance of this Agreement. 36. WORKERS' COMPENSATION INSURANCE COVERAGE The Bank shall provide or purchase applicable workers' compensation insurance coverage prior to performing work under this contract. The Agency will not be responsible for payment of industrial insurance premiums for the Bank, or any subcontractor or employee of' the Bank, which might arise under the workers' compensation insurance laws during performance of duties and services under this contract. Should the Bank fail to secure workers' compensation insurance coverage or fail to pay premiums on behalf of its employees, the Agency may deduct the amount of premiums owing from the amounts payable to the Bank under this contract and transmit the same to the appropriate workers' compensation insurance fund. 15 Washington Statewide Custody. Contract ~.~ { 37. CONFIDENTIALITY OF AGENCY RECORDS 37.1 The Bank acknowledges that material and information which has or will come into its possession or knowledge in connection with this Agreement, or its performance, may consist of confidential and proprietary data, the disclosure of which to, or use by, third parties could be damaging. 37.2 Access to information concerning individual recipients of the Agency's services shall not be granted except as authorized by law or Agency rule. 37.3 The Bank, therefore, agrees to hold all such material and information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to authorized employees requiring such information, and not to release or disclose it to any other party. 37.4 Notwithstanding anything apparently to the contrary in the preceding provisions of this Section 37, the Bank may release the material and information described in this Section 37 to authorized bank examiners and to its internal and external auditors for official use and may also release it pursuant to a subpoena or other order issued by a court of competent jurisdiction. The Bank shall promptly notify the Agency of any such subpoena or order upon its receipt. 38. AUDITING The Bank shall permit representatives of the Agency, the Agency Auditor, an auditor selected by the Agency, and/or the Auditor of the State of Washington or their authorized assistant to examine the records of the Bank relating to the services rendered under this Agreement, including securities transactions. Such audits may include, but are not limited to, examination of the securities themselves. If the Bank has contracted for deposit of the securities with another Bank, the Bank shall require its subcontractor to provide similar access to the designated Agency and State officials or their representatives. Any audits required by this Section which do not necessitate the compilation of records in addition to those which are otherwise required by other Sections of this Agreement may be conducted without notice. Any audits required by this Section which require the compilation of records in addition to those which are otherwise required by this Agreement may be conducted upon ten (10) days written notice from the Agency to the Bank. The provisions of this Section shall remain in effect for eighteen (18) months after the expiration, or sooner termination, of this Agreement. Records of Agency transactions must be kept and maintained by the Bank for a period of no less than seven (7) years from the date of the transaction. 39. BANK COMMITMENTS, WARRANTIES, AND REPRESENTATIONS 39.1 Any written commitment by the Bank within the scope of this Agreement shall be binding upon the Bank. Failure of the Bank to fulfill such a 16 Washington Statewide Custody. Contract commitment may constitute breach and shall render the Bank liable for damages due the Agency under the terms of this Agreement. 39.2 For purposes of this Agreement, a commitment by the Bank, which must be in writing, includes: (1) prices and options committed to remain in force over a specified period(s) of time; (2) any warranty or representation made by the Bank in a proposal as to Service performance; (3) any warranty or representation made by the Bank concerning the characteristics of items in (2) above, contained in any literature, descriptions, or specifications accompanying or referred to in a proposal; (4) any modification of or affirmation or representation as to the above which is made by Bank in writing whether or not incorporated into a formal amendment to the proposal in question; and (5) any representation by the Bank in a proposal, supporting documents or amendments thereto as to, services to be performed, prices and options committed to remain in force over a fixed period of time, or any other similar matter regardless of the fact that the duration of such commitment may exceed the duration of this Agreement. 40. YEAR 2000 COMPLIANCE 40.1 Year 2000 Compliance. The Custodian hereby warrants that it will use commercially reasonable efforts to ensure that the computer software and hardware (as used in this subsection, the "Systems") that are owned by the Custodian and used to provide the services to be provided by the Custodian under this Agreement (as used in this subsection "Services") are 2000 Compliant or will be made 2000 Compliant before December 31, 1999. With respect to software that the Custodian licenses from third parties and uses in providing the Services ("Third Party Sof~vare"), the Custodian warrants that it has used or will use commercially reasonable efforts to test the same by September 30, 1999 to certify, in accordance with the Custodian's standard practices, that the Third Party Software is 2000 Compliant. If the Custodian cannot certify any Third Party Software as 2000 Compliant, the Custodian will use commercially reasonable efforts to replace such Third Party Software with software that is warranted or certified by its vendor as 2000 Compliant, if such replacement is available, compatible with the Custodian's Systems and deemed by the Custodian as appropriate under the circumstances. In the event that the Custodian uses third party service providers to provide the Services or any portion thereof ("Third Party Services"), the Custodian warrants that it has in place a program under which it will use commercially reasonable efforts to contact such service providers and obtain from them assurances that the Systems use in providing Third Party Services are 2000 Compliant. As used herein, the term "2000 Compliant" means that the Systems will function without material error caused by the introduction of dates falling on or after 17 Washington Statewide Custody. Contract January 1, 2000. Notwithstanding the foregoing, the parties hereto acknowledge and agree that the Custodian cannot and does not warrant that the Systems, Third Party Software or Third Party Services will continue to interface with the hardware, firmware, software (including operating systems), records or data used by the Fund or third parties, nor does the Custodian make any warranties hereunder with respect to any public utility, communications service provider, securities or commodities exchange, or funds transfer network. 41. PRICE INCREASES 41.1 The Bank agrees to provide the Services at the costs, rates and fees set forth in Exhibit C, Custody Fee Schedule. No other costs, rates, or fees shall be payable to the Bank for implementation of Bank's proposal. 41.2 The fee schedule applies for two years from the date the Letter of Agreement is signed. Annual adjustments may be made by the Bank after the first two years to any or all items no greater than the national Consumer Price Index (CPI) as published by DRI/McGraw Hill for the preceding calendar year. The limitation would continue if the term of the Letter of Agreement is extended. CUSTODY PROVISIONS 42. CUSTODY OF SECURITIES 42.1 CUSTODIAL SERVICES The Custodian shall take custody of the securities owned by the Agency, and tendered for transfer to its custody; provide safekeeping services for them and accept complete responsibility as a fiduciary for their safekeeping from the moment of delivery to it and/or its transfer agent until their safe return and delivery to the Agency or its designated agent upon expiration or sooner termination of this Agreement. When ownership of a security is manifested by a certificate, bond, note or other physical document, the Custodian will verify proper registration of the security in the name of the Agency; keep the physical specimen in a secure vault, safe from destruction, damage, embezzlement and/or other loss; readily available to the Agency; and in a condition suitable for sale or transfer. When ownership is reflected in a book entry on official records only, the Custodian shall be shown on the books of the Federal Reserve System, the Depository Trust Corporation, or other depository agencies, as Custodian of the Agency's book-entry security; the Custodian shall verify the proper registration, evidenced by an entry in the Custodian's books reflecting that the Custodian holds those particular securities (or a quantity of securities that are part of a fungible bulk of government book-entry 18 Washington Statewide Custody Contract ~ securities) as Custodian for the Agency; and the Custodian shall obtain and maintain the confirmatory documents in a secure area and unless expressly authorized by the Agency, keep the securities ready for immediate sale or transfer free and clear of all encumbrances. 42.2 INVENTORY; DELIVERY AND REDELIVERY the Custodian shall keep an accurate, current inventory of all securities held within its custody for the Agency. The inventory will contain precise identification of each security including, when applicable, the date of purchase and maturity date; CUSIP numbers; and other sources of identification. 42.3 DEPOSIT OF SECURITIES the Custodian shall keep tangible securities in the facilities of the Custodian located in New York City, unless the Custodian and the Agency agree in writing to another location. Where securities are eligible for deposit in a book-entry system or a Depository, the Custodian may use that depository. Security arrangements shall restrict access to the Agency securities, record all entries and withdrawals, and provide physical safety for records at least equal to customs and standards of banks in large metropolitan financial centers for maintenance of valuable commercial securities. In addition, the Custodian shall maintain a "back-up" system of confirmatory records at another location so that if the vault at the Custodian's approved facility is inaccessible or its material damaged, destroyed, or stolen, the Custodian can establish to a reasonable degree of certainty, the securities belonging to the Agency. 42.4 AGENCY CLEARING ACCOUNT the Custodian shall establish a cleating account for the Agency as directed by the Agency. This account shall accurately reflect transactions of all kinds, with respect to securities of the Agency. This account is not to be construed as a Depository Account. The Custodian shall credit the following to the accounts immediately upon the earlier of the settlement date or the payment date: 42.4.1 All interest and other distributions received on account of the securities (including mortgages) held for the Agency; 42.4.2 All payments of principal or other return of capital, including, securities backed by mortgages and financing contracts; 42.4.3 All proceeds from the sale or transfer of securities, or rights appurtenant to the securities; 42.4.4 All payments made by the Agency to the Custodian and by the Custodian to the Agency; 19 Washin~on Statewide Custody. Contract --ad52K" 42.4.5 The Custodian may debit the account with disbursements authorized by the Agency. At the close of business, there shall be no cash in the clearing account. At the option of the Agency, all funds in the account at the close of business shall either be remitted by wire to the Agency in care of its primary bank or invested in an investment authorized by state statutes and approved by the Agency. 42.5 TRANSACTIONS the Custodian shall assist the purchase of securities and the sale of securities within its possession owned by the Agency. When so instructed, the Custodian will: 42.5.1 Take possession of securities purchased by the Agency, and when authorized, make payment from the clearing accounts as established under this Agreement therefore; 42.5.2 Deliver securities sold or transferred by the Agency to the appropriate entity or person versus payment; 42.5.3 Register in its name or in its name as Custodian, securities owned by the Agency and held in its physical custody or those securities indicated on the records of the Federal Reserve System, the depository trust company of New York Agency, or another depository, provided that adequate records are maintained to identify the actual ownership of the securities by the Agency and all rights to interest, and sale proceeds are vested in the Agency; 42.5.4 At the option of the Agency, the Custodian shall: 42.5.4.1 credit or debit the appropriate money account of the Agency in connection with the purchase, sale, maturity, redemption, income, dividends or other disposition of securities and other assets held for the time being on behalf of the Agency in said accounts on an actual settlement basis; or 42.5.4.2 make available provisional credit of settlement, maturity redemption proceeds, income and dividends on a contractual settlement basis. The Custodian reserves the right to reverse any such crediting at any time before actual receipt of the item associated with the credit when the Custodian determines that actual receipt will not be received in due course for such an item. In such instances, the Custodian may charge the appropriate money account of the Agency for the expense of providing funds associated with such advance in an amount 20 Washington Statewide Custody Contract not to exceed the actual short-term earnings of the Agency during the time the funds were credited to the Agency. · 42.5.4.3 In order to secure repayment of an advance of funds made in connection with a purchase of securities the Custodian shall have a purchase money security interest in, and a security entitlement with respect to, all of the Agency's right, title and interest in and to the securities acquired with such advance (including proceeds thereof). The Custodian shall with respect to such purchase money security interest be entitled to all the rights and remedies of a pledgee and secured creditor under applicable laws, rules or regulations as then in effect. If the Custodian, in its sole discretion, advances funds to the Agency or there shall arise for whatever reason an overdraft in the Agency's account the Custodian may at any time charge any such overdraft or indebtedness together with interest due thereon against any balance of account standing to such ~gency's credit on the Custodian's books. 42.5.5 Disburse funds as requested and remit funds to the Agency before the dose of each business day. The Agency retains the exclusive authority to manage the assets of the Agency within the Custodian's custody. This includes the determination of which investments shall be made; what and when securities shall be sold or encumbered; the terms or conditions of any transaction; and the disposition of cash on hand. The Custodian shall make no transaction without instructions from the Agency, except the advance crediting of principal, interest and other proceeds to the Agency's clearing account. 42.6 INCOME ON DEFECTIVE TRANSACTIONS The Custodian shall pay the Agency the following sums when a transaction is defective without fault of the Agency: 42.6.1 If a seller fails to deliver the securities in proper form on the settlement date, and the Custodian is not providing contractual settlement, the Custodian shall return to the Agency all those funds designated for purchase before the close of each business day, or invest those funds in an investment authorized by state statutes and approved by the Agency. 42.6.2 If a buyer fails to make payment on the settlement date, and the Custodian is not providing contractual settlement, the Custodian 21 Washington Statewide Custodv Contract ~2-O ~-~l shall pay the Agency the interest or other income, if any, actually received by it, from the party in default. 42.6.3 If the transaction fails or is delayed due to the inability of the Custodian to make such delivery due to actions of, or an inaction by, the Custodian, its agents, employees or equipment, the Custodian shall promptly pay the Agency an amount to make it whole as if the transaction had been properly executed, provided that the foregoing provisions shall not apply if the inability, action or inaction is by reason of forces beyond the control of Custodian, and provided further that Custodian's obligation to make payment to the Agency shall be limited to amounts constituting direct money damages. 42.7 ANCILLARY SERVICES 42.7.1 The Custodian shall have a comprehensive contingency plan for timely disaster recovery in the event systems are rendered inoperative due to fire, flood or other disaster. 42.7.2 Settlement of Transactions: Settlement of and payment for securities received for, and delivered from, the account may be made in accordance with the customary or established securities trading or securities processing practices and procedures in the jurisdiction or market in which the transaction occurs, including without limitation, the delivery of securities to a purchaser, broker, dealer or their respective agents either against a receipt for future payment or without any payment (so-called "free delivery"). 42.7.3 Taxes: The Agency is solely responsible and liable for the payment of and the reclamation, where applicable, of all taxes assessments, duties, and other governmental charges (including any interest or penalties with respect thereto) with respect to the cash or securities held hereunder or the Account. The Custodian, however, will cooperate with the Agency in connection with the Agency's payment or reclamation of taxes. 42.7.4 Pricing Services: To the extent that the Custodian provides values of, and pricing information with respect to, securities, the Custodian is authorized to utilize generally recognized pricing services (including brokers, dealers and market makers). The Custodian shall not be liable or responsible for or be under any duty to inquire into, nor be deemed 22 Washington Statewide Custody, Contract 38 to make any assurances or warranties with respect to, the accuracy or completeness of such values or information, even if the Custodian, in performing services for itself and others, including services similar to those performed for the Agency, receives different valuations of the same or similar securities of the same issuer. In the event such services are unable to provide a value of or pricing information with respect to securities and the Custodian, nevertheless, provides values and pricing information, the Custodian shall so advise the Agency, but shall have no other obligation or liability with respect to such valuation or pricing information. 42.8 PROPER INSTRUCTIONS AND EVIDENCE OF AUTHORITY The term "Proper Instructions" shall mean instructions received by the Custodian from the Agency or any person duly authorized by them. Such instructions may be in writing signed by the authorized person or may be in a tested communication or in a communication utilizing access codes effected between electro-mechanical or electronic devices or may be by such other means as may be agreed to from time to time by the Custodian and the party giving such instructions (including, without limitation, oral instructions). The Agency shall cause its duly authorized officer to certify to the Custodian in writing the names and specimen signatures of persons authorized to give proper instructions. The Custodian shall be entitled to rely upon the identity and authority of such persons until it receives notice from the Agency to the contrary. The Custodian shall be protected in acting upon any instructions, notice, request, consent, certificate, instrument or paper reasonably believed by it to be genuine and to have been properly executed or otherwise given by or on behalf of the Agency. The Custodian may receive and accept a certificate from the Agency as conclusive evidence (i) of the authority of any person to act in accordance with such certificate or (ii) of any determination or of any action by the Agency as described in such certificate, and such certificate may be considered as in full force and effect until receipt by the Custodian of written notice to the contrary. 42.9 RESPONSIBILITY OF CUSTODIAN 42.9.1 The Custodian shall perform its duties hereunder with "Due Care." For the purposes of this agreement, "Due Care" shall mean the degree of care and skill demonstrated by fiduciaries acting in like capacity as a safekeeping Custodian. The Custodian shall not be responsible for the title, validity or genuineness, including good deliverable form, of any property or evidence of title thereto received by it or delivered by it pursuant to this Contract. The Custodian may at its discretion appoint and remove agents or subcustodians to carry out such of the provisions of this contract as 23 Washington Statewide Custody Contract 3 7 the Custodian may from time to time direct; provided, however, that such appointment shall not relieve the Custodian of its responsibilities or liabilities under this Contract, and provided further that any depository selected with Due Care by the bank shall not be deemed for purposes of this agreement an agent or subcustodian of the Bank. 42.9.2 Provided always that the Custodian and its agents and subcustodians act in good faith and with the exercise of Due Care in performance of such duties as would ordinarily be expected of a financial institution in the relevant market and subject to the terms of the Custody Agreement: 42.9.2.1 It is not liable for any loss or damage caused by the delay or failure of any central bank, any Depository, or any commercially prevalent payment or clearing system to deliver to or for the Bank or its subcustodians securities purchased or sold, or to make or receive and remit, any payment in connection with purchases or sales of securities, for delays or failures in providing corporate action notices, or for delays or inability by the Bank to perform its duties due to acts or omissions of any Depository or to disorder in market infrastructure with respect to any particular security, security exchange, central depository or clearing system; and 42.9.2.2 It is not liable for any delay or failure of any non- parties, company, corporation, or other body in charge of registering or transferring Securities in the name of the Custodian, any customer of the Custodian, or the Subcustodian, its nominee or agent, or for any consequential losses arising out of such delay or failure to transfer such Securities including non-receipt of bonus, dividends and rights and other accretions or benefits. 42.10 SECURITY CODES If the Custodian has issued security codes or passwords to the Agency in order that the Custodian may verify that certain transmissions of information, including Proper Instructions, have been originated by the Agency, the Custodian shall, to the extent authorized by law, be kept indemnified by and be without liability to the Agency for any action taken or omitted by it in reliance upon receipt by the Custodian of transmissions of information with the proper security code or password, including instructions purporting to be Proper 24 Washington Statewide Custody. Contract ~1~, Instructions, which the Custodian reasonably believes to be from the Agency. 42.11 SPECIAL AND CONSEQUENTIAL DAMAGES Except as otherwise provided in this Agreement, neither the Custodian nor the Agency shall be liable to the other for special or consequential damages unless such damages result from the gross negligence or fraud of that party. 42.12 NOTICES Notices and other writings shall be delivered by the most expeditious means available, with due regard given to the time sensitivity of the notice or demand being made: To the Agency: City Treasurer City of Bremerton 239 Fourth St. Bremerton, WA 98337 To the Custodian: The Bank of New York One Wall Street New York, NY 10286 Attention: Government Agencies Department with a copy to: BNY Western Trust Company 601 Union Street Suite 520 Seattle, Washington 98101-2321 Or to such other address as the Agency or Custodian may hereat'ter specify in writing. Telephone and facsimile notices shall be sufficient if communicated to the party entitled to receive such notice at the following numbers: If to Agency: Telephone (360) 478 - 5295 Facsimile (360) 478 - 5200 If to Custodian: Telephone (206) 224 - 3114 Facsimile (206) 224 - 4201 or to such other numbers as either party may furnish the other party by written notice under this Section. 25 Washington Statewide Custody. Contract tt, PAYMENT PROVISIONS 43. PAYMENTS Fees and reimbursement for costs and expenses incurred by the Bank in connection with this Agreement, shall be paid quarterly after the last business day of each calendar quarter, with the first payment for the calendar quarter ending March 31, 2001. The Bank shall submit to the respective Agency an invoice containing an itemized list of all costs and expenses. The respective Agency will forward payment for service charges to the Bank, after the Agency verifies all activity and charges; within thirty days of receipt of the invoice, provided there are no significant unreconciled differences. In the event services are rendered for less than a calendar quarter, as will be the case for the initial invoice period, or this Agreement is terminated prior to the end of a calendar quarter, the respective Agency shall pay the Bank's fee prorated for the portion of the calendar quarter such services are rendered or the Agreement is in effect, plus any costs and expenses incurred by the Bank for the Account up to or subsequent to the date of termination. 44. TAXES It is mutually agreed and understood that all payments accrued on account of payroll taxes, unemployment contributions, any other taxes, insurance or other expenses for the Bank's staff shall be the sole liability of the Bank. 45. DAMAGES If the Bank does not meet its Service obligations as detailed in Section 42 of this Agreement and such failure is not caused by a force majeure event, the Bank shall be required to negotiate a settlement with the Agency Contract Administrator for an appropriate reduction in charges. In the event the Agency suffers any loss as a result of the Bank's gross negligence, fraud, or failure to exercise Due Care, as defined in Section 42.9.1, in the performance of its duties under this Agreement, either by the Bank or the Bank's agents, employees, subcontractors, or representatives under this Agreement, the Bank shall be liable to the Agency for such damages but only to the extent such damages constitute direct money damages caused by the Bank's negligence, fraud, or failure to exercise Due Care. The Agency shall be required to fully document such losses in writing by submitting such documentation to the Bank. 26 Washington Statewide Custody Contract CONTRACT EXECUTION 46. COUNTERPARTS This Agreement is to be executed in duplicate originals and each duplicate shall be deemed an original copy of the Agreement signed by each party, for all purposes. 27 Washington Statewide Custody. Contract /~ 47. SIGNATURE BLOCKS IN WITNESS WHEREOF the parties hereto, having read this Agreement in its entirety, including all attachments hereto, do agree in each and every particular. APPROVED APPROVED (NAME OF AGENCY) (NAME OF THE BANK) SIONATURE SIGNATURE TITLE TITLE DATE DATE 28 Washington Statewide Custody Contract Statewide Custody Fee Schedule Fee Description Fee Charged Comments Account Charges: (Basic Service) (Includes 3 accounts per relationship) Market Value up to $100 mil. $100.00 per month Per relationship Market Value $100 to $:200 mil. $:200.00 per month Per relationship Marke~ Value over $200 mil. $:200.00 per month Per relationship 1/200 of 1% on next $1.8 billion 1/400 of 1% on balance Additional Accounts over initial 3 $50.00 per month Per portfolio Transactions: (Basic Service) Manual (Fax, Pl~one) $12.00 per transaetion Purchases & Sales Automated (On line ~try by client) $8.00 per transaction Purchases & Sales Maturities $8.00 per transaetion Wires: Outgoinl~ only $10.00 per wire I Out-of Pocket Expenses (Basic Service) Passed alon~; at cost Courier, Postal, etc. On-line Communications: Installation fee $1,000.00 one-time Monthly Access Waived Invoices will be produced quarterly. Page 15 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: DECEMBER 20, 2000 RESOLUTION NO. , ESTABLISHING ORIGINATING DEPT: CITY COUNCIL YEAR 2001 LEGISLATIVE INTENT ORIGINATOR: CAROL ARENDS, PRESIDENT DATE SUBMITTED: DECEMBER 12, 2000 2. CLEARANCES: (comment on back 3. EXHIBITS: if necessary) RESOLUTION NO. 2787 COUNSEL CONSENT AGENDA EISC~E &~UDGET CHAIRMAN_ '0F~KAII~5 CHAIKMAN ENDORSEMENT INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: THE ATTACHED RESOLUTION NO. A7~7 EXPRESSES THE DIRECTION AND INTENT OF THE COUNCIL PURSUANT TO CONCERNS RELATED TO THE ADOPTION OF THE 200,~, BUDGET. 8. RECOMMENDATION: MOVE TO PASS RESOLUTION NO. a]67 ADOPTING THE LEGISLATIVE INTENT FOR THE 20011.. BUDGET. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED TABLED APPROVED DI SAPPROVED~~ENDED COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO: 00-~ ~¢ 2. CLEARANCE COMMENTS (cont,) : 4. SUMMARY STATEMENT (cont.): 5. IMPACT ON NON-PASSAGE: THE CiTY WILL NOT HAVE A BALANCED BUDGET FOR THE YEAR 200~,. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EOUIPMENT OR OTHER RESOURCES 7. RESEARCH SOURCES: RESOLUTION # C~-7 8 7 A RESOLUTION by the City Council establishing year 2001 Legislative Intent. WHEREAS, the City Council has approved the budget amendments for the year 2001; and WHEREAS, the City Council believes the following steps must be taken to execute the budget. NOW, THEREFORE, BE IT RESOLVED BY THE BREMERTON CITY COUNCIL THAT: 1. The City Council will establish priorities and provide policy guidance to the Mayor and staff for the Year 2002 budget implementation by February 28, 2001. 2. The Mayor will propose for the Council's considerations additional service reductions, budget cuts, and increased efficiencies by March 31,2001. 3. The Council will establish priorities and provide policy guidance to the Mayor for the next Biennial budget Year 2002 by June 30, 2001. PASSED, by the City Council of the City of Bremerton this day of December 2000. CAROL ARENDS Council President ATTEST: KATHLEEN McCLUSKEY, City Clerk AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: December 20, 2000 Amended CDBG recommendations ORIGINATING DEPT.: DED ORIGINATOR: Deborah Peavler-Stewart DATE SUBMITTED: December 6, 2000 2. CLEARANCES: 3. EXHIBITS: Director of Ec&no_~ Devel~opment __ City Attorney ~._'~5~.p-- Fiscal and Budget Commit~?-.2~ Operations Committe~~~ ENDORSEMENT X INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The City of Bremerton has received notification from the Department of Housing and Urban Development that the actual year 2001 Community Development Block Grant allocation is $594,000. The City previously selected recipients to receive $550,000. Additionally, funds in the amount of $2,953.89 were recaptured from projects that were completed under budget. Recommendations concerning the $44,000 in additional CDBG funds, 2,953.89 in recaptured funds and $15,280.11 from the City's Housing Rehabilitation Revolving Loan Program Income follow: $6,600 to KCR for emergency and transitional housing services (overhead not included), $35,634 to the Department of Community Development for Code Enforcement, and $20,000 to Olympic College Small Business Development Center to continue the support of a portion of the salary of the Small Business Development Specialist who provides training and technical assistance to micro enterprises in the City. 8. RECOMMENDATION: I move to approve the recommendations for the additional CDBG funds the recaptured funds and program income as described. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIA L: EXPIRATION DATE: ~ REVIEW DATE: 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED AMEND COUNCIL DIRECTIVE: AGENDA BILL NO 2. CLEARANCE COMMENTS: None 5. IMPACT ON NON-PASSAGE: Unable to allocate/reallocate funds 6. IMPACT ON STAFFING~ BUDGETS~ FACILITllgS, EQUIPMENT OR OTHEP_ RESOURCES: None 7. RESEARCH SOURCES: AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: December 20, 2000 HOME Recommendation ORIGINATING DEPT.: DED ORIGINATOR: Deborah Pearler-Stewart DATE SUBMITTED: December 6, 2000 2. CLEARANCES: 3. EXHIBITS: Director of Ecx~n.o~m, ic- Development City Attorney ~Y~/J~ -- Fiscal and Budget Committee , ~ .<.' ~ ' ~' / O ,tion, Committ ENDORSEMENT X INFORMATION__APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: As a member of the Kitsap County HOME Consortium, the City of Bremerton receives an annual allocation of HOME funds from the Department of Housing and Urban Development (HUD) to expand the supply of safe, sanita~ and affordable housing for low income persons. Within the City of Bremerton, over 60% of the properties are renter-occupied. This percentage is severely disproportionate to the national average of 35% renter occupied units. In order to increase the number of owner occupied properties, the City of Bremerton has developed a policy stating that HOME funds will primarily be used to support homeownership activities within the City. The City of Bremerton has received 5 applications requesting funding under the HOME program. City staff reviewed each application and, as directed according to the HOME policy, a panel consisting of the Department of Economic Development staff and the mayor interviewed each applicant relative to the requested project. One application was determined to qualify under the Anderson Cove set-aside that was previously approved by Council. The interview panel's recommendations relative to the remaining four applications are attached: 8. RECOMMENDATION: I move to approve the attached recommendations for funding under the HOME program. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIA L: EXPIRATION DATE: REVIEW DATE: -- -- 10. NOTICE OF ACTION ~ PULLED__ TABLED__ APPROVED DISAPPROVED AMENDED . COUNCIL DIRECTIVE: AGENDA BILL NO 2. CLEARANCE COMMENTS: None 5. IMPACT ON NON-PASSAGE: Unable to allocate funds 6. IMPACT ON STAFFING, BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: None 7. RESEARCH SOURCES: 2001 HOME RECOMMENDATIONS Applicant: Community Resource Center Proiect Description: HOME funds will be used for operating expenses and salaries for staff at CRC, a non-profit corporation dedicated to providing homeownership opportunities and rehabilitation of existing homes in Bremerton. Amount Requested: $9,200 Amount Recommended: $9,200 Applicant: Community Resource Center Proiect Description: HOME funds will be used to continue CRC's existing program that was initially funded in 1996. Funds would be used to assist 15 low and moderate income persons or families to acquire, and rehabilitate properties within the Bremerton City limits. The funds are loaned to the family and are paid to a revolving fund that is administered by CRC. Amount Requested: $145,680 Amount Recommended: $45,000 Aoolicant: Habitat for Humanity Proiect Description: HOME funds will be used to purchase and develop three pieces of property in Bremerton to build three single-family homes in partnership with low and very low income people who are currently living in substandard housing and paying more than 30% of their income in rent. Amount Requested: $96,000 Amount Recommended: $96,000 Applicant: City of Bremerton Department of Economic Development Proiect Description: HOME funds will be used to support the existing homebuyers assistance program. Between 50 and 60 homebuyers are assisted each year. The program currently is utilizing program income to operate and funds are being depleted. The requested funds will allow staff to continue this program without interruption. .Amount Requested: $100,000 Amount Recommended: $100,000 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Sole Source Lease/Purchase of FOR AGENDA OF: December~3', 2000 Invensys Radio-Read Meter Reading ORIGINATING DEPT: Public Works & Utilities ~ System for the Water Utility ORIGINATOR: Wayne Hamilton, Util. O'ps.~gr. DATE SUBMITTED: November 27, 2000 2. CLEARANCES: (Comment on b~k~) 3. EXHIBITS: Director PW&U //" vn/~,,a7~-'~ · Equipment description and Cost estimate City Attorney ~ ~'~"~~ · Quotation fi'om Western Utilities Supply Co. City Treasurer '~2~ .-~r~ ~ · Purchasing Manager ~ ~ . Operations Committee ~,~~/~// Fiscal & Budget Comm. ~z.~./~.~.~· .~-~ ~' ENDORSEMENT 9c INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Each year since 1995, the Water Utility has converted a portion o£its water meters to an Invensys automated meter reading system. Ultimately, this conversion will provide substantial savings in operating costs and a nearly error flee systerr~ The system is approximately 10% complete and at the current rate of conversion, it will take several years to complete system installation. The 2001/02 budget includes completing the conversion in 2001 to realize the benefits of the automated system at the earliest date. The pay-out for the conversion is approximately six years. To maintain standardization and compatibility with existing equipment, it is recommended that City Council authorize the sole- source lease/purchase of the remaining Invensys equipment in the amount of $1,990,630 plus applicable tax, fi'om Western Utilities Supply Co., the sole supplier of Invensys equipment. 8. RECOMMENDATION: Motion to approve the sole-source lease/purchase of an Invensys Radio-Read Meter Reading System ~om Western Utilities Supply Co. in the amount of $1,990,630.00 plus applicable tax and authorize the Mayor to execute a contract in accordance with established policies and procedures. 9. RESPONSIBLE OFFICIAL: P.W. & U. Director ENFORCEMENT OFFICIAL: Utilities Operations Mgr. EXPIRATION DATE: N/A REVIEW DATE: N/A 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED~ED __ COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO: 2. CLEARANCE COMMENTS: 5. IMPACT ON NON-PASSAGE: Staffreductions are included in the 2001/02 budget in anticipation of this implementation. If the radio reading system is not installed, the Utility would have insufficient staffing to manually read the water meters. 6. IMPACT ON STAFFING~ BUDGETS~ FACILITIES~ EQUIPMENT OR OTHER RESOURCES: The purchase and installation of the radio read system is projected to have a pay-out in approximately six years and is included in the 2001/02 capital budget for the Water Fund No. 401 fund. ' 7. RESEARCH SOURCES: Field demonstration oflnvensys system reading Bremerton accounts. {~9m122_1.ab} EXHIBIT l Equipment Description and Cost Estimate The following equipmem is required for the Invensys Radio-Read Meter Reading System: Description Quantity Unit Cost Amount 5/8 to 2" SR or SRII ECR/WP Retrof'rt Registers 10,146 $ 55. $ 558,030. Turbo & Compound Retrofit ECR/WP Registers 24 $ 150. $ 3,600. Meter Transceiver Unit (MXU) 10,000 $ 140. $ 1,400,000. Vehicle Transceiver Unit (VXU) 1 $ 25,000. $ 25,000. Software Upgrade 1 $ 4,000. $ 4,000. Total Equipment $ 1,990,630 Installation Cost $ 250,000 Total $ 2,240,630 -~~7 WESTERN UTILITIES SUPPLY CO. DISTRIBUTORS OF WATERWORKS AND SEWERAGE SUPPLIES  10013 MARTIN LUTHER KING JR. WAY SO. SEA-I-rLE, WA 98178 F'AX (206) 722-9477 (206) 722-4800 1-800-426-8310 Monday, October 30, 2000 Wayne Hamilton Bremerton; Ci~ Of 3027 Olympus Drive Bremerton WA 98300 Dear Wayne, Thank you for taking time to meet with me. i have enclosed further informatiOn on unit pridng in regards to the November 19, 2000 Financial Benefits Analysis, for your review. 5/8 to 2" SR or SR~i ECPJWP Retrofit Registers 10,145 $ 55.00 $ 558,030.00 Turbo and Compound Retrofit ECPJWP Registers 24 $ 150.00 $ 3,600.00 Meter Transceiver Unit (MXU) 10,000 $ 140_00 $1,400,000.00 Vehicle Transceiver Unit (VXU) 1 $25,00000 $ 25,000.00 Software upgrade 1 $ 4,000.00 ~ 4,00~._00 $1,990,630.00 If you have any questions conCerning please feel free to contact me at the following: Seattle office (messages only) I 800 426-8310 Mobile 206 406-3021 Sincerely, Erik E. Ongstad AMR Specialist AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: DECEMBER 20., 2000 Water Service Area Agreement with the ORIGINATING DEPT: Public Works & Utilities Erland Point Water Company, Inc. ORIGINATOR: K. Cahall, Water Resources DATE SUBMI'I-I-ED: 12/06/00 2. CLEARANC_ES; (comment ~ bac~f/f'j~.essary) 3. EXHIBITS: Director, PW&U ~ ~.~~ Service Area Agreement with service area City Attorney mad and lecAal description. Fiscal & Budget Comm Comm. Operations ENDORSEMENT /~ INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Each water system has a designated service area for providing public water service. Bremerton's service area is described in the City's approved Water System Plan. The Washington Department of Health encourages water systems to obtain Service Area Agreements with neighboring water systems. Bremerton and Edand Point have adjoining service area boundaries in the northwest section of the City's system. The attached Service Area Agreement clarifies each system's service area. 8. RECOMMENDATION: That City Council approve the Service Area Agreement with Edand Point Water Company and authorize the Mayor to execute the same, subject to Citv Administrative Policies and Procedures. 9. RESPONSIBLE OFFICIAL: pw~ I~ire~r ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: PULLED TABLED APPROVED DISAPPROVED AMENDED COUNCIL DIRECTIVE: DATE: 00-- 2.9o 11. AGENDA BILL NO: 2. CLEARANCE COMMENTS (Continued): 4. SUMMARY STATEMENT (Continued): 5. IMPACT OF NON-PASSAGE: Non-passage would create confusion between water service areas for Bremerton and the Ertand Point Water Company. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT, OR OTHER RESOURCES: This is an administrative action and does not impact staff, budget, facilities, or equipment. 7. RESEARCH SOURCES: Kitsap County Coordinated Water System Plan, 1992. Department of Health Planning Handbook, 1997. WATER SERVICE AREA AGREEMENT CITY OF BREMERTON AND ERLAND POINT WATER COMPANY, INC. THIS AGREEMENT is hereby made and entered into by and between the CITY OF BREMERTON, a municipal corporation of the State of Washington established under Title 35 of the Revised Code of Washington, hereinat~er referred to as "BREMERTON", and the ERLAND POINT WATER COMPANY, INC., a non-profit corporation hereinafter referred to as "ERLAND POINT". WITNESSETH: WHEREAS, BREMERTON and ERLAND POINT are desirous of entering into an agreement for the purpose of establishing their respective areas of customer service; and WHEREAS, BREMERTON and ERLAND POINT acknowledge that they are now, or expect in the future, to serve the area of Kitsap County, Washington, lying generally in the central portion of said County and around the western portion of Dyes Inlet; and WHEREAS, in order to plan for expected growth and proper utilization of the resources and facilities of BREMERTON and ERLAND POINT, each party is desirous of establishing a service area boundary between the two parties, which will delineate the area beyond which future service will not extend; and WHEREAS, in def'ming the boundary between the respective service areas of BREMERTON and ERLAND POINT, the parties have given proper consideration to expected growth and population and service demands, ground surface elevations and contours, water service pressure zones and compatibility to the extent possible in the respective pressure zones utilized by the parties hereto; and WHEREAS, BREMERTON and ERLAND POINT have also given consideration to what is considered to be orderly development of water service and population growth and the maintenance of sufficient service, both present and prospective. NOW, THEREFORE, for and in consideration of the mutual promises and benefits to be derived herefi-om, the parties hereto hereby agree as follows: 1. Establishment of Boundary: BREMERTON and ERLAND POINT hereby agree that the boundary between their respective water service areas shall be the line shown on the attached Exhibit "A", which by this reference is incorporated herein as though fully set forth. Said line is legally described as set forth on "Exhibit "B" attached hereto, which by this reference is incorporated herein as though fully set forth. It is agreed that BREMERTON shall service the area to the south delineated by the line described on Exhibit "A" and Exhibit "B", and that ERLAND POINT will serve the area north of the line described on Exhibit "A" and Exhibit Agg. Svcrdlh SERVICE AREA AGREEMENT Page CITY OF BREMERTON AND ERLAND POINT WATER DISTRICT 2. Service Outside of Delineated Area: BREMERTON and ERLAND POINT each agree that in consideration of the need for orderly development, neither will serve the area herein delineated for service by the other without the express prior written consent of the other. 3. Changes in Service Area: In the event there is any change in the service area boundary set between BREMERTON and ERLAND POINT in the future, such changes shall be by mutual agreement and in writing. 4. No Abrogation: Nothing in this Agreement shall abrogate the rights and powers of BREMERTON under RCW 35.13A.030 - .050 upon annexation of any territory included in the ERLAND POINT service area into BREMERTON. 5. Authorization: BREMERTON and ERLAND POINT have each authorized the execution of this Agreement by appropriate resolution. 6. Notices: All written notices required to be given pursuant to this Agreement shall be sent by certified mail, return receipt requested, to the parties at the following address: BREMERTON: Bremerton Public Works and Utilities 3027 Olympus Drive Bremerton, WA 98310-4799 ERLAND POINT: Erland Point Water Company P.O. Box 644 Silverdale, WA 98383 Provided, however, that either party may change the address to which notices are to be sent by providing notice in accordance with this section. 7. Governing Law: This Agreement shall be governed by the laws of the State of Washington. 8. Jurisdiction and Venue: In the event that any suit or action shall be brought in connection with this Agreement, jurisdiction and venue shall be proper in the Kitsap County Superior Court, Kitsap County, Washington. 9. Severability: In the event that any section, or any part of any section, of this Agreement shall be declared invalid by a court of a competent jurisdiction, said holding shall have no effect upon the remaining sections of this Agreement, which shall remain in full force and effect. Agg. Svcsdlh SERVICE AREA AGREEMENT Page 2 representations, either written or oral, which modify or have any effect upon this Agreement. DATED this day of ,2000. CITY OF BREMERTON By: Authorized Signatory Party Lynn S. Horton, Mayor ERLAND POINT WATER COMPANY, INC. Manager, P~esident Agg. Svcs/lh SERVICE AREA AGREEMENT Page 3 CITY OF BREMERTON AND ERLAND POINT WATER DISTRICT EXHIBIT "B" ~/~)~///~/,~ Description The line dividing the service areas of the City of Bremerton Water System and the Erland Point Water System is described as follows: Beginning at the northeast corner of Government Lot 4, Section 4, Township 24 North, Range 1 East, Willamette Meridian, situate in Kitsap County, Washington also being the True Point of Beginning; thence west along the north line of said Government Lot 4 to the common corner between said Government Lot 4 and the northeast corner of the southeast quarter of the southeast quarter of Section 5, Township 24 North, Range 1 East, Willamette Meridian; thence along the north line of said southeast quarter of the southeast quarter to the intersection of the said north line and the easterly right of way of State Highway 3; thence south along said easterly right of way to the section line between said Section 5 and Section 8; thence west along said section line to the common quarter corner between said Sections 5 and 8; thence continuing west along said section line to the northerly right of way of NW Golf Club Hill Road; thence easterly along said northerly right of way to the intersection of said northerly right of way and the extension of the east line of Short Plat No. 4801, recorded under Auditor File No. 8810190063, records of Kitsap County, Washington; thence south along said extension to the southeast corner of said Short Plat No. 4801; thence west along the south line of said Short Plat No. 4801 to the southwest corner of said Short Plat No. 4801; thence south along an extension of the west line of said Short Plat No. 4801 35.95 feet; thence N 68°05'05'' W 111.37 feet; thence S 27°27'22'' W 41 feet; thence N 89°09'55'' W 156.27 feet; thence N 88°27'03'' W 380 feet more of less to the west line of the east half of the northeast quarter of the northwest quarter of said Section 8; thence south along said west line to the south line of said northeast quarter of the northwest quarter; thence west along said south line to the intersection of said south line and the westerly right of way of Chico Way NW; thence north along said westerly right of way 226.2 feet; thence leaving said westerly right of way, S 89°47'11" W 66.2 feet; thence N 0°52'49'' W 200 feet; thence N 88°57'49" W 397.6 feet; thence S 1°26'11" W 118.7 feet; thence S 88°57'49'' E 251.6 feet; thence S 1°26'11" W 300 feet to the south line of said northwest quarter of the northwest quarter of said Section 8; thence west along said south line to the intersection of said south line and the westerly right of way of North Lake Way NW; thence along said westerly right of way to the intersection of said westerly right of way and the southerly right of way of Seabeck Highway; thence westerly on the said southerly right of way to the intersection of said southerly right of way and the easterly right of way of the United States Navy Railroad and the terminus. AGENDA BILL BREMERTON CITY COUNCIL DECEHBER 20, 2000 1. SUBJECT: FOR AGENDA OF: Memorandum of Understanding Concerning ORIGINATING DEPT: Public Works & Utilities Watershed Planning ORIGINATOR: K. Cahall, Water Resources DATE SUBMITTED: 12/06/00 2. CLEARANCES: (comment o1~ bacl~/~e~essary) 3. EXHIBITS: Director, PW&U ~- ~-~ - Memorandum of Understanding City Attorney City Treasurer Fiscal & Budget Corem Operations Comm. *Watershed Planning was presented at City Council Study Session on October 25, 2000. ENDORSEMENT /~-' INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR ~-~-'J Y'~' 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Watershed Planning has been initiated in Water Resource Inventory Area 15, which is the entire Kitsap Peninsula. The purpose of Watershed Planning as described in RCW 90.82 is to cooperatively plan and manage the uses of Washington's water resources. The planning process will be in three phases: (1) Develop planning parameters and schedule; (2) Technical assessment; and (3) Produce Watershed Plan. As a member of the initiating governments, the City of Bremerton is involved in guidance of the planning process by specifying the four scope issues (water quantity, water quality, in-stream flows, and habitat), forming the planning unit, and developing the ground rules, as described in the attached MOU among the initiating governments. 8. RECOMMENDATION: That City Council approve the Memorandum of Agreement for Watershed Planning and authorize the Mayor to si.cln, subiect to City administrative policies and procedures. 9. RESPONSIBLE OFFICIAL: PW&U Director ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: PULLED TABLED APPROVED DISAPPROVED ~ A~IIED COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO: (,,)0 ~ ~ ~ I 2. CLEARANCE COMMENTS (Continued): 4. SUMMARY STATEMENT (Continued): 5. IMPACT OF NON-PASSAGE: Watershed Planning in WRIA15 could not proceed without the concurrence of the City of Bremerton. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT, OR OTHER RESOURCES: The City's representatives on the committee are Kathleen Cahall (Water Resources Manager) and Gene Sampley (Director, Public Works & Utilities) (alternate). Personnel time for involvement in this planning process has been budgeted in the Utilities' 2001/02 budget. No other City expenditures are anticipated at this time. State grants are available for the three phases for funding technical studies pdnting the plan, etc., but not for staff participation on the Planning Committee. 7. RESEARCH SOURCES: RCW 90.82 - The Washington Watershed Management Act Guide to Watershed Planning and Management (draft), 1999. MEMORANDUM OF UNDERSTANDING ~,~¥//_~}'~ln WATERSHED PLANNING KITSAP WRIA 15 November, 2000 WHEREAS, the Washington Watershed Management Act, RCW 90.82, provides a process to plan and manage the uses of water within the Kitsap Water Resource Inventory Area (WRIA 15); and WHEREAS, the water resource planning process described in Chapter 90.82 and this Agreement is not intended to formally determine or resolve any legal dispute about water rights under state or federal law or Indian Treaty. Rather, this process is an alternative, designed to cooperatively plan and manage the uses of Washington's water resources; and WHEREAS, the initiating governments as defined under RCW 90.82.060 are Kitsap, Mason, and Pierce counties, the City of Bremerton, the Silverdale Water District, and the Port Gamble S'Klallam and Suquamish Tribes; and WHEREAS, the initiating governments as defined by RCW 90.82.060(5) have initiated the watershed planning process in accordance with RCW 90.82.060(2) and have determined that the general scope of planning should include an instream flow component in accordance with RCW 90.82.080, a water quality component in accordance with RCW 90.82.090, and a habitat component in accordance with RCW 90.82.100; and WHEREAS, the initiating governments recognize that effective watershed planning cannot take place without a broad participation of governmental entries with a water interest within WRIA 15, and therefore seek the full participation of additional local and tribal governments in organizing and conducting this watershed planning process; and WHEREAS, these expanded initiating governments have been included consistent with RCW 90.82.060, which directs that 'the initiating governments shall work with state government, other local governments within the management area, and affected tribal governments in developing a planning process'. NOW, THEREFORE, the initiating governments and expanded inkiating governments for WRIA 15 agree as follows: Preamble: The purpose of this agreement is for the Expanded Initiating Governments, as defined below, to come to a mutual understanding and agreement regarding their role and responsibility in watershed planning under the Washington State Watershed Management Act (RCW 90.82). This agreement covers the roles and responsibilities of the lead agency, the Expanded Initiating Governments and the Planning Unit. Further, this agreement establishes the general scope of planning for the Kitsap WRIA and establishes a general planning process under which the Planning Unit will operate. 1.0 Expanded Initiating Governments 1.1 The parties to this Agreement shall be an expanded group of initiating governments, specifically the counties of Kitsap, Mason, Pierce, and King; the cities of Bainbridge Island, Bremerton, Gig Harbor, Port Orchard, and Poulsbo; the Indian tribes of Port Gamble S'Klallam, Skokomish, Squaxin Island, and Suquamish; and the water purveyors of Annapolis, North Perry, and Silverdale water districts as well as Public Utility District #1 of Kitsap County. The Expanded Initiating Governments will be set at 16 members. As of this agreement, the Expanded Initiating Governments are considered to be equivalent to the Initiating Governments. 1 1.2 The Expanded Initiating Governments agree to form and maintain a balanced Planning Unit that represents a wide range of water resource interests in WRIA 15. It shall be the individual responsibility of each Expanded Initiating Government to appoint a representative to the Planning Unit. Such a representative will be authorized to make consensus decisions on behalf of the Expanded Initiating Government, though ultimate decision-making is the responsibility of the policy makers. All representatives shall make best attempts to coordinate, as needed, with elected officials and other affected departments in order to ensure to the extent possible that decisions made during the development of the watershed plan represent all interests of the Expanded Initiating Government. 1.3 The Expanded Initiating Governments establish and guide the planning process by providing the Planning Unit with ground rules to be used throughout the planning process. The ground rules may be modified by the Planning Unit. 2.0 Scope: The intended scope of the watershed plan is comprehensive, to include water quantity, water quality, instream flows, and habitat. Existing data, studies and plans will be fully utilized in this comprehensive watershed planning process. The geographic scope of the watershed plan shall be Kitsap WRIA 15. Sub-area investigations and plans may be developed by the Planning Unit, provided that these sub-area plans are ultimately integrated into a unified and consistent overall watershed plan. It is understood, however, that there are not enough resources to fully study all areas of the WRIA, therefore, it is anticipated that the sub-basins within the WRIA will be prioritized and remaining data gaps will be identified. Studies and data that are available may be used as a general guide, where appropriate, for areas that are not investigated. 3.0 Lead Agency: Kitsap County will be the lead agency for the purposes of convening the Expanded Initiating Govemments, administration of Watershed Planning Grant funds, facilitating meetings of the Planning Unit, and providing and/or contracting services. Project budgets and overall approach, including utilization of consultants, shall be agreed upon by the Expanded Initiating Govermnents by consensus, before the Planning Unit is formed, and by the Planning Unit after it is formed and operating, as defined within its ground rules. The Lead Agency shall not obligate any parties to financial responsibility in performing its tasks under this Agreement without approval of the respective governmental entities. The Lead Agency will also prepare and maintain proper records for accounting and administration of watershed planning grants. 4.0 Planning Unit 4.1 The Planning Unit is the committee formed by the Expanded Initiating Governments to define a detailed work plan and scope of work, determine a budget, establish a schedule, hire consultants and/or staff, and to direct all aspects of the Watershed Management Plan. Ultimately the Planning Unit will be responsible for approving the Watershed Management Plan and forwarding the Plan on to the three Counties for public hearings and adoption. 4.2 Members of the Planning Unit formed by the Expanded Initiating Governments shall agree to cooperate with the planning process identified in this Agreement. 4.3 The Planning Unit shall be the policy recommendation committee for the watershed plan as envisioned in RCW 90.82.060. Non-governmental representation in the Planning Unit is encouraged to provide representation of a wide range o f water resource interests. 2 4.4 The Planning Unit may def'me its mission further and establish additional groundrules for operation consistent with this agreement, including establishing various sub-committees. The Planning Unit shall establish procedures for consensus, voting, recording decisions, and dispute resolution. Sub- committees can also establish their own groundrules for operation consistent with this agreement, provided that such groundrules are approved by the Planning Unit. 4.5 The Planning Unit will consist originally of the following groups and representatives: Counties: a representative from Kitsap, Mason, Pierce, and King counties, appointed by the respective county; Cities: a representative from Bainbridge Island, Bremerton, Gig Harbor, Port Orchard, and Poulsbo, appointed by the respective city; Tribes: a representative from Port Gamble S'Klallam, Skokomish, Squaxin Island, and Suquamish Tribes, appointed by the respective tribe/tribal group; Water Purveyors: a representative from Silverdale, Annapolis, and North Perry Water Districts, and Public Utility District # 1 of Kitsap County, each appointed by the respective Board of Commissioners or water purveyor; State: The State of Washington shall participate in the Partnership in caucus form through the Department of Ecology (DOE), who shall represent all pertinent State agencies, including the Departments of Health, Natural Resources, Fish & Wildlife, Community Trade & Economic Development, and the Puget Sound Action Team. These other agencies are invited and encouraged to actively participate in this planning effort; Other Caucuses (tentative lisO The following major interest caucuses will each have one seat on the Planning Unit: At Large · Business · Environmental · Fisheries (including sport and shellfish) · Non-voting Federal Agencies · Recreational · Timber/Agriculture · Water Purveyors 4.6 The Planning Unit can agree to add a caucus or representative through thc consensus process. 5.0 Decision process 5.1 Each duly appointed representative ora unit of local government or tribe will have one vote. State and non-governmental organizations will each have one vote as a caucus, except the water purveyors not listed above who will form one caucus with two representatives. Representatives of federal agencies shall not be entitled to a vote. 5.2 The Planning Unit will strive to make decisions by consensus of all members of the Planning Unit. For the purposes of this process, consensus shall mean concurrence, with no one member of the Planning Unit refusing to support the implementation of the decision. If the full Planning Unit is unable to reach a consensus decision on an issue, an affkrnative decision shall be made by the consensus of governmental participants on the Planning Unit and a majority vote of all non-governmental participants present. This method of approval will be called "voting consensus." 3 5.3 Where applicable, decisions should be based upon best available science. Best available science is defined by the scientific community and agreed upon by the Planning Unit. 5.4 Sub-area investigations and plans may be developed by the Planning Unit. Any sub-area plan must be compatible with the overall watershed plan and policy recommendations. 5.5 Nothing contained herein or developed during the planning process shall prejudice the legal claims of any participants. 5.6 Government participants may and are encouraged to provide specific written approval of all watershed plan elements that create an obligation on the government entity. Obligation means any required action that imposes a fiscal impact, a redeployment of resources or a change of existing policy. It is expected that all governmental entities will provide written approval of the f'mal Watershed Plan. 5.7 Substantive decisions will be made by the Planning Unit at least one week after the issue is brought to the Unit for a decision, to allow time to communicate within caucuses. Ifa caucus does not support a proposed action, it is encouraged to state why, in writing, for the record. 6.0 Funding: 6.1 This agreement does not obligate the Expanded Initiating Governments to pay any costs for WRIA 15 watershed planning. Any such obligation in the future shall require express written agreement by those obligated. 6.2 Kitsap County shall be the lead agency for the management of grant funds and the application for additional funds. Annual budgets and allocations of watershed planning grant funds shall be approved by the Planning Unit. Grant funds may be used for staff support, technical staff and/or consulting services, and may include preparation of technical reports for review by the Planning Unit and committee(s). 6.3 Participation in watershed planning committees by officials and staff shall be regarded as contributed time and not eligible for grant reimbursement, unless expressly approved by the Planning Unit. 7.0 General Watershed Management Planning Act Conditions 7.1 Watershed Plan (the Plan) provisions cannot conflict with existing statues or tribal treaty rights. 7.2 Existing water rights (claims, permits, and certificates) cannot be impaired or diminished. 7.3 The Plan cannot require modifications in the operations of a federal reclamation project with water rights pre-dating the law, and cannot alter the quantity of water available to such a project. 7.4 The Plan cannot affect or interfere with an ongoing general adjudication of water rights. 7.5 The Plan cannot modify or require the modification of a waste discharge permit. 7.6 The Plan cannot modify or require modification of wild salmonid recovery activities developed under the Salmon Recovery Act (but may contain recommendations for changes). 4 13.0 Authorization to Sign: The parties hereto each represent and warrant that all necessary signatures and consents to enter this agreement and to assume and perform the obligations hereunder have been duly and properly obtained. This Memorandum of Agreement has been executed this __ day of , on one or more originals, by the parties below. Kitsap County Mason County Pierce County Executive City of Bainbridge Island City of Bremerton City of Gig Harbor City of Port Orchard City of Poulsbo Annapolis Water District Kitsap PUD/ti North Perry Water District Silverdale Water District Port Gamble S'Klallam Indian Tribe Skokomish Indian Tribe Squaxin Island Indian Tribe Suquamish Indian Tribe 6 Attachment to Memorandum of Understanding Kitsap WRIA 15 Watershed Planning Squaxin Island and Skokomish Tribes Statement of Conditions for Participating in Watershed Planning as part of the Watershed Management Planning Act 8.1 The water resource planning process described in this agreement is not intended to formally determine or resolve any legal dispute about water rights under state or federal law or Indian Treaty. Rather, this process is an alternative, voluntarily developed, designed to cooperatively plan and manage the uses of Washington's water resource. 8.2 The Tribes will not define or identify a specific quantity of water that constitutes the Tribes' treaty or legal water rights. The Tribes reserve their treaty right to any and all waters required to produce a harvestable number of fish sufficient to meet ceremonial, subsistence, and commercial needs in order to carry out its treaty fishing right reserved under the Treaty of Medicine Creek. Further, the Tribes reserve their judicial, statutory, and equitable rights to any and all waters to meet the changing needs of its tribal members in fulfilling the purposes of the Reservation. 8.3 The Tribes will not agree to any plan elements that seek to delrme, alter, or otherwise affect the Tribes' treaty or legal water rights. 8.4 There will be no planning involving on-reservation water rights. 8.5 Effective watershed planning cannot take place without the full participation, as an Initiating Government, of all Tribes with a legal interest or history of fish habitat management activities in the affected watershed. To achieve this, the Initiating Government will invite such Tribes to participate as Initiating Governments in determining the scope of planning, composition of the Planning Unit, and all other authorities of such governments. 8.6 The Tribes will not agree to re-negotiation ofinstream or base flows that have been set by rule or agreement in the watershed, except to the degree that modifications are necessary to meet the requirements of the fish resource and the reserved rights of the Tribe. Further, the Tribes will not agree to re-negotiation of closures to further appropriation by Department of Ecology rule or determination in any stream reaches in the watershed. 8.7 Assessment ofinstream flow, for purposes of the state or Tribes, will be conducted jointly by the Department of Ecology with the affected Tribes, and in cooperation with the Department ofFish and Wildlife. 8.8 Tribal claims to instream flows include at a minimum: minimum flows necessary to provide optimum habitat conditions for salmon. This includes those waters of sufficient quantity and quality to meet the needs of all the Tribes' fisheries and to fully support the five elements ofanadromous fish habitats set out in the Joint Biological Statement in United States v. Washington: 1) access to and fi.om the sea; 2) an adequate supply of good quality water; 3) a sufficient amount of suitable gravel for spawning and egg incubation; 4) an ample supply of food; and 5) sufficient shelter. 7 8.9 All discussions must use best available scientific data and methodologies and such science must be commonly accepted by the scientific community and agreed upon by the affected Tribes. Utilization ofconsukants must also be agreed upon between the affected Tribes and the appropriate state agencies. 8.10 The parties recognize that f'mal agreement is more likely if the parties can fi-eely discuss alternatives and hypotheticals without prejudice to positions they may take in legal proceedings. Therefore, no discussion, plan, proposal, agreement, offer of compromise, proposed agreement, concession, statement, data, material or document, whether oral, written or in electronic or other format, made by or on behalf of the affected Tribe in furtherance of the planning process envisioned by this agreement shall be admissible in any legal or administrative proceeding, regardless of whether the Tribe is a party to that proceeding. 8.11 The Tribes reserve any and all rights and defenses that they may have with respect to their treaty reserved, judicial, statutory, or equitable water rights pertaining to any other participant in the process, including any such participants' claim to or allocation of water in the watershed. 8.12 No negotiations seeking to de£me, alter, diminish, or otherwise affect the treaty reserved or legal water rights of the Tribes may be adopted without the express approval of the Tribal Government and its General Membership. 8.13 The parties agree the consensus decision-making process def'med under this agreement will remain in force not withstanding any future legislation. 8.14 There shall be no consensus under Section 9(1)(a) of ESHB 2514 without the express agreement fi:om the Tribes in writing. 8.15 The Tribes shall have the right to withdraw fi:om the planning process at any time. Ail parties agree that, if the Tribes withdraws, it shall not be considered a party to any plan or agreement produced pursuant to ESHB 2514 and shall not be bound thereby. 8.16 No amendment or alteration of this agreement shall arise by implication, course of conduct, or change of state law. This agreement may be altered only by a subsequent written document, signed by the parties, expressly stating the parties' intention to amend the agreement. 8.17 Nothing herein shall be a waiver of Tribal sovereign immunity for any litigation including but not limited to any general stream adjudication. 8.18 The parties recognize that ESHB 2514 provides that the planning process shall not contain provisions which conflict with Tribal treaty rights or which impose an obligation on any participating Tribal government. They therefore agree that Tribal participation in this process shall not constitute an admission or agreement by the participating Tribes that any estimates of Tribal treaty rights are binding on k, unless the affected Tribe expressly so agrees in writing at the conclusion of the process, and such Tribal agreement is approved in writing by the United States. 8.19 This statement must be made part of the Watershed Plan proposed by the Planning Unit or approved by the County pursuant to Sections 3 and 9 of the Act. 8 7.7 The Plan cannot modify or require modification of habitat enhancement activities that are a) part of an approved habitat conservation plan, incidental take permit, incidental take statement; or other cooperative or conservation agreement involving a State or federal agency; or b) part of a water quality program adopted by an irrigation district under chapter 87.03 RCW or a board of joint control under chapter 87.80 RCW. 7.8 The Plan cannot change existing local ordinances or existing state rules or permits (but may contain recommendations for changes). 7.9 The Plan must take into account forest practices rules under RCW 76.09 and cannot create obligations or restrictions on forest practices additional to or inconsistent with the forest practices act and its implementing rules. 7.10 Nothing contained herein or developed during the planning process shall prejudice the legal claims of any participants. 8.0 Tribal Conditions for Participation The attached Squaxin Island and Skokomish Tribes Statement of Conditions for participating in watershed planning under ESH~ 2514 are acknowledged by all the parties of this agreement. These conditions outline those Tribes' conditions for joining this planning effort, but they are not binding on the other parties to this agreement or the Planning Unit. To be clear, the Port Gamble S'Klallam and Suquamish Tribes are not part of these Statement of Conditions. 9.0 Duration: This agreement will be in effect for the duration of the watershed planning period, which shall last no longer than £our years fi:om the effective date of receipt of Phase 2 funding unless extended by agreement of the Expanded Initiating Governments. 10.0 Modifications: 10.1 This agreement may be modified or amended only by a subsequent written document, signed by all the Expanded Initiating Governments, expressly stating the parties' intention to amend the agreement. No amendment or alteration of this agreement shall arise by implication, course of conduct or change of state law until expressly addressed by the Planning Unit. 10.2 Notwithstanding the above, any governmental entity shall have the right to withdraw fi-om the planning process at any time. All parties agree that if an entity withdraws, it shall not be deemed to be a party to any plan or agreement produced pursuant to RCW 90.82 and shall not be bound thereby. 11.0 Agreement: The water resource planning process described in this Agreement is intended to result in the cooperative management of WRIA 15, water resources. The parties agree that participation in the WRIA 15 watershed planning process shall not abrogate any parties' authority or the reserved or other rights of any participating agency, except where an obligation has been accepted in writing. 12.0 Notice: Any notice for or 9onceming this agreement shall be in writing and shall be deemed given when sent to the address below: Lead Agency - Kitsap County Natural Resources 614 Division Street MS-436 Port Orchard, WA 98366 5 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: CSO REDUCTION PLAN FOR AGENDA OF: December 20, 2000 UPDATE - AMENDMENT NO. 1 TO ORIGINATING DEPT: Public Works & Utils PROFESSIONAL SERVICES AGREEMENT ORIGIN.AT~QR: W. E. Sampley, Director Public Works & Utilities DATE SUBMITTED: December 5, 2000 2. CLE~¥d~ (Comment on back 3. EXHIBITS: ~/~~ ~ 1. Amendment No. 1 to Professional Director of lgublic W~& Utilities Services Agreement ~c~ty Attorn~ C6~unci1 Fiscal & Budget Committee C%uncil Op~erations Committee ENDORSEMENTX~INFORMATION [] APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: '~-~C COUNCIL PRESIDENT ~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Design and construction of improvements in the Callow Avenue Basin will be partially funded by a congressional appropriation administered by the Environmental Protection Agency (EPA.) The total available funds appropriated for this work is approximatley $3,500,000. A requirement for receipt of this funding is development of a Environmental Assessment (EA) for the area impacted by the construction. This amendment adds scope of work and budget to the contract with HDR to perform the required EA. Scope of work and budget is also included in this amendment for evaluation of sanitary system flow data that the City is collecting in various CSO basins. The requested action before the City Council is approval of a contract with HDR Engineering for an amendment to their existing Professional Services Agreemment. 5. RECOMMENDATION: The City Council approve Amendment No. 1 to the professional services agreement with HDR Engineering, Inc., for $41,800, and authorize the Mayor to execute the same. 9. RESPONSIBLE OFFICIAL: Director Pub Wks & Util ENFORCEMENT OFFICIAL: Director Pub Wks & Util EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROQ~)ED [] COUNCIL DIRECTIVE: (OVER) 11. AGENDA BILL NO.: O~ '- ~q ~-~ 2. CLEARANCE COMMENTS: 3. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION - Continuation 5. IMPACT ON NON-PASSAGE: The City would not receive approximately $3,500,000 in federal funding. The City would also not have the consultant evaluate flow data collected during the winter months. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT AND OTHER RESOURCES: Staffing: No Impact. Budget: This project is funded by a combination of the Department of Ecology's Centennial Clean Water Fund (grant funds), and Water Pollution Control Revolving Fund (loan funds.) This project is included in the 2000 and 2001 budgets. Facilities/Equipment: No impact. 7. RESEARCH SOURCES: AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT FOR CSO REDUCTION PLAN UPDATE The City of Bremerton, Washington, (the "City"), and HDR Engineering, ("Consultant") have entered into a PROFESSIONAL SERVICES AGREEMENT, hereinafter referred to as AGREEMENT for a project described as CSO Reduction Plan Update. This AMENDMENT NO. 1 modifies the Scope of Work and Budget set forth in the AGREEMENT dated October 13, 1999, as follows: The Scope of Work shall be modified to add additional scope items as outlined in the attached Amendment No. 1. The Compensation for services shall be increased by $41,800 and the total fees under this Agreement shall not exceed Three Hundred Ninety One Thousand and One Hundred Dollars ($391,100.) Except as herein modified, the terms of the AGREEMENT shall remain in full force and effect. In WITNESS WHEREOF, the parties hereto have executed the AMENDMENT NO. 1 to the Professional Services Agreement the date and year indicated. For HDR Engineering, dated this __ day of ,2000. By: For the City of Bremerton, dated this __ day of ., 2000. By: Lynn S. Horton, Mayor DEPARTMENTAL APPROVAL: W. Eugene Sampley, Director of Public Works and Utilities APPROVED AS TO FORM: City Attomey RECEIVED FOR FILING: Kathleen McCluskey, City Clerk -/8 AMENDMENT NO. 1 CITY OF BREMERTON CSO REDUCTION PLAN UPDATE ADDITIONAl, SCOPE ITEMS Task 411 - Prepare an Environmental Assessment for CSO Reduction Facility Plan Improvements in the Callow Basin Consultant Responsibilities: 1. Contact the State Historic Preservation Officer and request a letter of compliance for the Callow Avenue Basin CSO reduction projects. 2. Contact the Corps of Engineers regarding determination of a need for a permit under Section 404 for any of the Callow Avenue Basin CSO reduction projects. 3. An NEPA Environmental Assessment (EA) will be prepared assessing the environmental impacts of the proposed improvements identified in the CSO Reduction Plan Update for the Callow Basin. The City will be able to proceed directly to environmental review with the EA. City Responsibilities: 1. Provide the approved CSO Reduction Plan Update Assumptions: 1. All data needed to prepare the EA exists and, thus, no new field studies are necessary. 2. Impacts are minimal and a Finding of No Significant Impact (FONSI) will be issued. 3. No public meetings are included in this task. 4. Attendance at two half day meetings with the Environmental Protection Agency. 5. The EA is a maximum of 70 pages in length (not including appendices). 6. Copying and distribution costs for 50 copies of the final version of the EA are included. 7. The EA will be developed in accordance with EPA guidelines. 8. Preparation of the EA is based on approximately five weeks of labor by senior and junior environmental staff. 9. A biological assessment (BA) will not be required. 10. The EPA and the City will address comments on the EA during the review period after issuance of the FONSI. City of Bremerton I Scope of Work CSO Reduction Plan Update '7 ~ Work Products: 1. Ten copies of an initial draft of the EA are provided to the City for review. Based on a notice to proceed by December 22, 2000 the draft EA will be completed and submitted to the City by January 31, 2001. 2. Ten copies of the final draft of the EA are provided to the City concurrent with the submittal of the draft to the EPA for review. The final draft will be submitted to both the City and the EPA one week after receiving comments from the City on the initial draft. 3. A camera ready copy of the EA, 50 printed copies, and associated electronics are provided to the City. The EPA has indicated that the review period for the draft EA will be up to 30 days after receipt of the draft EA. The final EA will be submitted to both the City and the EPA one week after receiving comments from the City and the EPA on the final draft. Task 412 - Review and Assessment of Combined Sewer System Flow Data Consultant Responsibilities: 1. Review combined sewer system flow data. This includes both overflow data and base system data. 2. Review precipitation data with regard to the design storm event used in the development of the CSO reduction plan update. 3. Modify the HYDRA hydrologic and hydraulic model based relevant flow data collected during CSO events. City Responsibilities: 1. Provide flow, rainfall and operational data. Assumptions: 1. The work items in this task will be performed as requested by the City. 2. Invoicing will be based on the payment provisions of the contract. Work Products: 1. At a minimum, documentation of analysis or review performed will be by verbal description followed up by e-mail. Where appropriate or when requested a technical memorandum or report will be prepared. Estimated Costs Task 411 - Preparation of Environmental Assessment $26,800 Task 412 - Review and Assessment of Combined Sewer System Flow Data $15,000 TOTAL $41,800 City of Bremerton 2 Scope of Work CSO Reduction Plan Update ~0 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: December 20, 2000 Professional Services Agreement- ORIGINATING DEPT: Public Works ~l. zA Amendment No. 2: Marten and Brown ORIGINATOR: Eugene Sampley, Directo DATE SUBMITTED: December 13, 2000 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: }~'[~I~Y ~TTOR~'EY Professional Services Agreement - Amendment No.2: Marten & Brown /.Fiscal & Budget Committee Operations Committee ENDORSEMENT .~ INFOP,_M~TION [] APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Martin & Brown is representing the City in the Tal Price/A&K Trust Lawsuit which is currently under appeal. Also, a second claim has been filed by A&K Trust. Additional services are required to address the appeal and potential additional litigation associated with this matter. Authorization is requested to amend the Professional Services Agreement with Marten & Brown by $200,000 to a total contract amount of $325,000. 8. RECOMMENDATION: Motion to approve Amendment No. 2 to the Professional Services Agreement with Marten & Brown an additional amount of $200,000 for a total not-to-exceed contract amount of $325,000 and authorize the Mayor to execute the same in accordance with City policies and procedures. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: REVIEW DATE PULLED [] TABLED [] APPROVED [] DISAPPROVED NDED COUNCIL DIRECTIVE: 11. AO~NDA BILL NO.: 2. CLEARANCE COMMENTS: 5. IMPACT OF NON-PASSAGE: Overload of City resources to the detriment of other responsibilities. Appeal of the initial lawsuit will not be supported by the attorney-of-record. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: Martin & Brown has provided legal services for the case to date and will have all necessary background information to continue with future litigation. Monitoring of the Agreement will require essential oversight. Funds are available in the Public Works & Utilities 2000/01 Budget. 7. RESEARCH SOURCES: PROFESSIONAL SERVICES AGREEMENT Retained Counsel Services - Amendment No. 2 This agreement is by and between the City of Bremerton (hereinafter "City") and Marten & Brown, (hereinafter "Retained Counsel"); and is made and entered into pursuant to the provisions of Chapter 39.34 RCW. WITNESSETH: WHEREAS, on October 1, 1999 the parties entered into a professional services agreement for legal services to be provided to the City by Retained Counsel in the amount not to exceed Seventy-five Thousand Dollars ($75,000); and WHEREAS, on April 27, 2000 the parties executed Amendment No. 1 to the agreement to an amount not to exceed One Hundred Twenty-five Thousand Dollars ($125,000); and WHEREAS, the parties wish to amend the agreement to provide for additional services required for ongoing litigation in an amount of Two Hundred Thousand Dollars ($200,000) to an amount not to exceed Three Hundred Twenty-five Thousand Dollars ($325,000); NOW THEREFORE, in consideration of the mutual covenant hereinafter stated, the parties hereto agree as follows: Section 3. "Compensation", is amended to read: This agreement shall not exceed the total amount of Three Hundred Twenty-five Thousand Dollars ($325,000). All other terms and conditions of the parties October 1, 1999 Professional Services Agreement shall remain in full force and effect unless inconsistent with this agreement. Dated this __ day of December 2000. CITY OF BREMERTON MARTEN & BROWN BY: BY: LYNN S. HORTON, Mayor GILLIS E. REAVIS DEPARTMENT APPROVAL: W. EUGENE SAMPLEY, Director of Public Works & Utilities APPROVED AS TO FORM: City Attorney RECEIVED FOR FILING: KATHLEEN McCLUSKEY, City Clerk MAP, TEN & BP, OWN T91..1651-0 TAL PP,..T.C,E LAWSU~'T AC~EEMENT INVOICE5 PAYMENTS TOTAL EFFECTIVE bATE AMOUNT INVOICE ;~ Date AMOUNT Rte Paid Ck# AMOUNT i0/21/99 75,000.00 75,000.00 19040 10/08/99 1;622.35 10/27/99 ~235692 1.622.35 76,622.35 20550 11/11/99 11,432.80 11/23/99 ~236507 11,432.B0 BB,055.15 2230t 12/10/99 12,~ ~-'7~,19 0t/tl/O0 ~'237677 12,7'75,19 100.830.34 1142§ 01/27/00 42,983.19 03/01/00 #239016 42,983.19 143,813.53 12775 02/28/00 17,815.76 04/19/00 #240640 17,815.76 161,629.29 03/22/00 50,000.00 13124 03/13/00 22,917.B4 04/19/00 #240640 22,917.84 134,547.13 14475 04/24/00 29,375.37 05/03/00 ~241040 29,375.3T 163,922.50 15251 05/12/00 14,882.84 06/07/00 ~242093 14,882.84 178,805.34 16835 06/26/00 94,476.11 10/18/00 1~2460B2 94,476.11 273,281.45 17020 07/24/00 [0,103.73 10/t8/00 ~246082 10,103.73 283,385.18 18251 08/10/00 604.66 10/18/00 ;~246082 604.66 283,989.84 19025 09/19/00 1,078.23 10/18/00 ;~246082 1,078.23 285,068.07 20102 10/15/00 85.26 85.26 285,153.33 12§,000.00 Tot~t I,voi¢~d 260,153.33 T~:I p:ym~ra, 260,1§3.33 BUI)6ET~ YTD COSTS BUD~ 535.1035 1999 ~,0~ 68,B14 3,840 72.6~ (22,6~) 535,1035 2~ NONE ZDEN~ED 191,3~ 11,301 202,641 0 0 0 Lt~ ~O~T~ 260,t~3 t5,~41 275,295 - ~t~l Fllef~ame: mil"ten Ul~da~ed: 1111/0~ MAP, TEN & BROWN T9116510 TAL PP. ICE LAWSUIT :::::::;::::::::: : : ::::: : ::.:::::::::::: :;: ; ::::::::::::::::::::::::::::::::::::::: AC~EEMENT TNVOTCES PAYMENTS TOTAL EFF~CT'~VE DATE AMOUNT ZNVO];CE # bet., AMOUNT b,~i'e P~id Ck# AMOUNT 10/21/99 7§,000.00 75,000.00 19040 10/08/99 1,622.35 10/27/99 #235692 1,622.35 76,622.35 205§0 11/11/99 11,432.80 11/23/99 ~236§07 11,432.80 88,0§§.1§ 22301 12/10/99 12,7-/§.19 01/11/00 ~2376T7 12,7-/'§.19 100,830.34 11425 01/27/00 42,983.19 03/01/00 #239016 42,983.19 143,813.53 1277'5 02/28/00 17,815.76 04/19/00 ~240640 17,815.76 161,629.29 03/22/00 50,000.00 13124 03/13/00 22,917.84 04/19/00 ~240640 22,917.84 134,§47.13 14475 04/24/00 29,37§.37 05/03/00 ~241040 29,37§.37 163,922.50 15251 05/12/00 14,882.84 06/07/00 ~242093 14,882.84 178,805.34 16835 06/26/00 94,476.11 10/18/00 #246082 94,476.11 273,281.45 17020 07/24/00 10,103.73 10/18/00 #246082 10,103.73 283,385.18 18251 08/10/00 604.66 10/18/00 #246082 604.66 283,989.84 19026 09/19/00 1,078.23 10/18/00 ~246082 1,078.23 285,068.07 20102 10/15/00 85.26 11/08/00 #246690 85.26 285,153.33 21251 11/1§/00 184.51 184.51 285,337184 125,000.00 Total Znvoiced 260,337.84 Total Payments 260,337.84 PRO.,TECT MANAGE~mLEh~N,A BUbGET* Y'rl:) COSTS BU~ BARS # YEAR AMOUNT AGREEMENT OTHER COST5 TOTAL BALANCE 535.1035 1999 50,000 68,814 3,840 72,654 (22.654) 535,1035 Z000 NONE ]:DEN'I-J:I~ZED 191,524 11,301 202,826 0 0 O LTD COSTS 260,338 15,141 275,479 - Fllenlme: martin Updated: 12/5/00 AGENDA BILL BREMERTON CIT~ COUNCIL 1. SUBJECT: FOR AGENDA OF: 12/20/00 1. Contract for Mediation Services ORIGINATING DEPT: Mayor Horton 2. Joint Request for expedited ORIGINATOR: Mayor Horton Judicial Review DATE SUBMITTED: 12/14/00 2. CLEARANCES: (comment on back 3. EXHIBITS: if necessary) 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: In an effort to resolve the on-going City Attorney issues and the difference of opinion between the Mayor and the Council regarding legislative and administrative functions, it is proposed that the mayor and council jointly request an expedited judicial review of the issues. These include, but may not be limited to, the City Attorney employment issues and the council's recent motion to incorporate the City Attorney's staff and/or budget into the Council budget. The Mayor continues to support mediation and believes that while judicial issues are being resolved the lines of communication should be opened through a mediated process. Therefore, it is recommended that the Mayor and Council move forward immediately to select a mediator and schedule meetings. 8. RECOMMENDATION: 1. Motion to jointly request an expedited judicial review of the issues. 2. Motion to approve joint selection of a mediator and scheduling of meeting dates. 9. RESPONSIBLE OFFICIAL: Mayor & Council ENFORCEMENT OFFICIAL: Mayor & Council EXPIRATION DATE: REVIEW DATE: ~ 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED AMENDED COUNCIL DIRECTIVE: DATE: 2. CLEARANCE COMMENTS (cont.): 4. SUMMARY STATEMENT (cont.): 5. IMPACT ON NON-PASSAGE: 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES 7. RESEARCH SOURCES: AGENDA. BILL BRE~4ERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: December 20,2000 ORIGINATING DEPT: BPD Appeal of Determination ORIGINATOR: Clyde W. Stricklin of Non-significance DATE SUBMITTED: December 13,2000 2. CLEARANCES: (comment on back 3. EXHIBITS: -~f necessary) 1) DNS 2) Proposed Zoning Map 3) SEPA Checklist ~~ ~ ~/~/~. 4) Petition · 5) Applicant's ApPeal ENDORSEMENT ~ INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR ~ ~. ~~ COUNCIL PRESIDENT ~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The City proposes a zoning amendment for the front yard setback street side from 15 (20 garage) feet to ~5 feet street side" for existing lots along a portion of Shore Drive (See exhibit 2) in response to a petition rom a number of Citizens. (See exhibit 4). The Staff issued a DNS (See exhibit 1) based upon an Environmental Checklist (See exhibit 3)in the format required by the WAC as adopted by the BMC. The BMC authorizes One open record appeal of this type two Administrative Decision to the City Council. See continuation... 5. RECOMMENDATION: The appeal should be denied. Cumulative impacts were considered for the geographic area as proposed by the use of the checklist required by the BMC. Other areas ar~D_e.~ithin the city proposal and their analysis is specifig~~-~equired ~7~W~C 197-11-060 (c) (i) . ~ ' ' 7. NOTICE OF ACTION. ~' ' ' COUNCIL DIRECTIVE: DATE: ~l ~ 2. CLEARANCE COMMENTS (cont.): None 4. SUMMARY STATEMENT (cont.): An Appeal has been filed regarding the Shoreline Drive Overlay zone amendment Determination of Non-significance. (See exhibit 5.) On the city form the Appellant alleges that "An EIS is required [due to the DNS] failure to evaluate the cumulative impact of additional requests for similar actions in Bremerton." No other written statements or documentation were submitted with the appeal. The appeal was filed in a timely manner. Subsequent discussions with the appellant have revealed the concern to be the cumulative effect of the potential for extending the proposal to other areas. In this case the city followed WAC 197-11-060(c) (Optional) which states, "Agencies may wish to analyze "similar actions' in a single environmental document. Section WAC 197-11-060(c) (i) states, "Proposals are similar if when viewed with other reasonably foreseeable actions, they have common aspects that provide a basis for evaluating their environmental consequences together, such as common timing, types of impacts, alternative or geography. This section does not require agencies or applicant to analyze similar actions in a sinqle environmental document or require applicant to prepare environmental documents on proposals other than their own. (emphasis added) The City of Bremerton Comprehensive Plan and adopted Environmental impact analysis considered and encouraged increased development within the City of Bremerton. The Housing element anticipates over 7,000 units to be built through development and re-development of City lots. One method for redevelopment is filling in additional housing on existing lots. The time for appeal of this GMA action is long past. While WAC 197-11-060 (4) (e)does require the range of impact to be analyzed in an EIS to include "Cumulative impacts" among others, those impacts are only those directly or indirectly within the City's proposed Shoreline drive proposal which have been adequately analyzed in the city's review by the appropriate use of the Checklist format required by the BMC. Conclusions: Cumulative impacts were considered for the geographic area as proposed by the use of the checklist required by the BMC. Other areas are not within the city proposal and their analysis is specifically not required by WAC 197-11-060(c) (i) . Finally WAC 197-11-680 (D) (vii) provides that the responsible official decision shall be entitled to substantial weight. 10. IMPACT ON NON-PASSAGE: Up holding the appeal would stop the consideration of the Zone amendment for the Shore Drive area and delay several pending building permits seeking the front yard setback change. 11. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES Additional and significant staff time would be involved in processing individual requests for variances on each individual property and expected appeals on each one. 12. RESEARCH SOURCES: SEPA Rules Chapter 197-11 Specifically WAC 197-11-680 Appeals, WAC 197-11- 060 (c) (Optional), WAC 197-11-060 (4) Impacts. See exhibits and the City of Bremerton Comprehensive Plan, Environmental Impact Statement for the Comprehensive Plan adoption and specifically the Housing Element. Date: Thu, Dec 21, 2000 7:41 AM Subject: Written Order required for Scheyer DNSappeal denial ~ ~. Clyde, To complete the record on appeal, B&P needs to prepare a written order for the City Council President's //~ signature indicating the holding of the hearing, the evidence received and considered (testimony & documents), and the order denying Scheyer/Miller's appeal. Copies of the order need also to be sent to the appellants. Notice of the appeal denial may need to be published, please check the BMC. I am off to an all day hearing today and depart tomorrow at noon for two weeks. -David CC: Chris Hugo; City Council; Lee Wyatt / BEFORE THE CITY COUNCIL OF THE CITY OF BREMERTON In re ) DETERMINATION OF ) Appeal PL00-0057 NONSIGNIFICANCE ) FOR SHORE DRIVE REZONE ) ORDER FROM SF-3 TO SF-3 SD ) PROJECT NO. PL00-0055 ) The Bremerton City Council, having heard this matter in open session and being otherwise fully advised, finds, concludes, and orders as follows: FINDING OF FACT 1. This is an appeal of a Determination of Non-significance (DNS) issued by the City of Bremerton on October 13, 2000. The Bremerton Municipal Code (BMC) at section 21.02.935 (b) provides authorization for appeal of Type II Administrative decisions. Type II Administrative decisions are defined at BMC Section 21.02.845 and includes (2) SEPA Determination. BMC section 21.12.240 provides for the adoption of Washington Administrative Code 197-11. 2. The referenced Determination of Non-Significance ( DNS ) was issued for the city proposal to revise the SF-3 Zone street-side setback from 15 feet ( 20 garage) to a blanket 5 feet setback along a portion of Shoreddve. 3. An appeal of the DNS was filed with the City on October 18, 2000 signed by Paul Scheyer and Helen Miller. It sought a review of the DNS because of a: "Failure to evaluate the cumulative impact of additional requests for similar actions in Bremerton" and indicated the relief requested was that an EIS would be required. No other information was submitted with the written appeal. 4. The Determination of Non-significance was issued based upon a completed Environmental Checklist in the format required by the WAC 197-11-960 prepared as noted on its face page section A4 on October 5, 2000. The Date of Signature section C indicates it was signed October 18, 2000. 5. Notice of the appeal hearing was published November 8, 2000, and posted, and mailed November 3, 2000. The hearing was originally scheduled for November 15, 2000. Then Rescheduled for December 20, 2000. Notice of the rescheduled hearing was published December 2, 2000. 6. At hearing city staff prepared and presented a staff report in the format required by the city council. The report was hand delivered to the appellant prior to the heating. The staff report included a summary statement, the DNS, the Proposed Zoning map, the SEPA checklist, the petitions of property owners requesting the change, and the applicants appeal. 7. The staff summary statement reviewed the requirements for all Environmental review as set forth in WAC 197-11-060 as the applicable criteria for review and specifically WAC 197-11- 060 section( c ) (optional) which authorizes jurisdictions to analyze impacts of similar actions that have common aspects such as "geography." And that further states, "this section does not require agencies or applicants to analyze similar actions in a single environmental document or require applicant to prepare environmental documents on proposals other then their own." 8. Additional information provided pertaining to the number of lots developed in the Shoredrive geographical area indicated that most of the lots were developed before existing zoning as shown on a photo from 1978. Staffalso indicated that it had reviewed the county assessors information during its preparation of the Check list. Assessors review indicated that about 55 lots are in the area and that of those, 44 have houses and garages. A site inspection by staff indicated that most of these would not meet current setbacks. Two houses appear to meet the current setbacks. Only about 6 lots are vacant on which new structures may be proposed. The checklist impacts analyzed included potential additions on the existing houses, new houses on the vacant lots as well as reconstruction of new houses under the revised standard according to the requirements for permitting and environmental checklist review. 9. Also considered in the staff report, as well as required for review in all environmental reviews is other information that may be available to the appropriate official. The staff report identifies that the City ofBremerton Comprehe~tsive plan and its Environmental Impact Analysis considered the impact of redevelopment within the city and identifies its preferred strategy for redevelopment and infill of 7000 city lots in order to provide for anticipated growth of 20,000 additional persons in the twenty year plan (1995-2015). Future individual site plan and building plans will also provide for additional on- site review impact analysis. 10. At hearing the appellants were repeatedly requested to provide any substantiating information as to the environmental impact within the geographical area that were not considered by the use of the checklist. Appellants raised procedural issues including the timing of the checklist signature and date of the DNS, storm drainage and safety as concerns but without any supporting documentation. 11. The Checklist Section A4 indicates that it was prepared on October 5 prior to the DNS Publication on October 13, 2000. Staff indicated that normally the final review is completed after publication when signed on October 18, 2000 to allow for inclusion of public comments if any. 12. Storm drainage was a part of the checklist. Legal staff'advised that safety issues have to do with the ordinance adoption, rather than the adequacy of the analysis of the environment and that the ordinance is not the subject of this appeal. Conclusions 1. Staff accomplished the Checklist on October 5, 2000 prior to the Determination of Non- Significance such that the review was done in a timely manner. 2. The DNS and Checklist review relevant environmental concerns as required under WAC 197-11 for the staff proposal and is not required to review other areas as requested by appellant as per 197-11-060 section( c ). 3. The appropriate official has reviewed the impacts in relationship to the Requirements of WAC 197-11 as required by the Bremerton Municipal Code, the City Comprehensive Plan, Environmental Impact Statement and existing city mitigating process including building permits and shoreline requirements. 4. WAC 197-11-680 (d) (viii) provides that the responsible official's decision shall be entitled to substantial weight. Appellants have provided only their opinions without substantiated evidence of any kind that environmental impacts will be significant. And the City Council having fully considered this matter, NOW THERFORE, it is ORDERED, ADJUDGED AND DECREED AS FOLLOWS: Action by the City of Bremerton Building and Planning Department Director is AFFIRMED Appellants request for review of the Determination of Non-Significance Appeal PL00-0057 is DENIED. Dated this 20 day of December. BREMERTON CITY COUNCIL Carol Arends, Council President Attest City Clerk Approved as to form City Attorney DNS appeal order PL00-0057.Doc CITY OF BREMERTON DEPARTMENT OF BUILDING & PLANNING DETERMINATION OF NONSIGNIFICANCE Description of Proposal: Zoning Map Amendment to create Zoning District "SF-3-SD," for current shoreline single-unit residential lots along Shore Drive, that would allow a minimum five feet front yard setback (street side) for structures. Proponent: City of Bremerton Proiect Number: PL00-0055 Location of Proposal: Primarily shore lot portions of Shore Drive, Bremerton, WA Lead Agency: City of Bremerton Department of Building & Planning The lead agency for this proposal has determined that it does not have a probable significant adverse impact on the environment. An environmental impact statement (ETS) is not required under RCW 43.21C.030(2)(c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request. This DNS is issued under WAC 197-11-340(2); the lead agency will not act on this proposal for at least 14 days from the date below. Comments must be submitted by: 5:00 p.m., October 31, 2000. Responsible Official: Clyde Stricklin Position/Title: Land Use Official Phone: (360) 478-5275 Address: 286 Fourth Street, Bremerton WA 98337 Date: ~ ~2/~ -~~d Signature You may appeal this determination to: Bremerton City Council No later than: October $'!, 2000. You should be prepared to make specific factual objections. Contact: James Coombes to read or ask about the procedures for SEPA appeals. Phone: (360) 478-5845 WAC 197-11-970 DNS SEPA PL00-0055 Shore Drive SF-3-SD Zone.doc 10/13/00 (~ WAC 197-11-960 Environmental checklist. ENVIRONMENTAL CHECKLIST Purpose of checklist: The State Environmental PoLicy Act (SEPA), chapter 43.21C RCW, requires all governmental agencies to consider the environmental impacts of a proposal before making decisions. An environmental impact statement (EIS) must be prepared for all proposals with probable significant adverse impacts on the quality of the environment. The purpose of this checklist is to provide information to help you and the agency identify impacts fi:om your proposal (and to reduce or avoid impacts fi:om the proposal, if it can be done) and to help the agency decide whether an EIS is required. Instructions for applicants: This environmental checklist asks you to describe some basic information about your proposal. Governmental agencies use this checklist to determine whether the environmental impacts of your proposal are significant, requiring preparation of an EIS. Answer the questions briefly, with the most precise information known, or ~ve the best description you can. You must answer each question accurately and carefully, to the best of your knowledge. In most cases, you should be able to answer the questions from your own observations or project plans without the need to hire experts. If you really do not know the answer, or if a question does not apply to your proposal, write "do not know" or "does not apply." Complete ansxvers to the questions now may avoid unnecessary delays later. Some questions ask about governmental regulations, such as zoning, shoreline, and landmark designations. Ans~ver these questions if you can. If you have problems, the governmental agencies can assist you. The checklist questions apply to all parts of your proposal, even if you plan to do them over a period of time or on different parcels of land. Attach any additional information that will help describe your proposal or its environmental effects. The agency to which you submat this checklist may ask you to explain your answers or provide additional information reasonably related to deterraining if there may be significant adverse impact. Use of checklist fbr nonproject proposals: Complete this checklist for nonproject proposals, even though questions may be answered "does not apply." ~4 XDDr~0N. complete the SUPPLEMENT.~L SHEET FOR NONPROJECT ACTIONS (part D). For nonproject actions, the references in the checklist to the words "project," "applicant," and "property or site" should be read as "proposal," "proposer," and "affected geographic area," respectively. A. BACKGROUND t. Name of proposed project, if applicable: Proposed Ordinance Amendment - SF - 3SD 2. Name of applicant: City of Bremerton Building and Planning Department 3. Address and phone number of applicant and contact person: 286 4th St. Contact: William Palmer Bremert°n, Wa 98337 (360) 478-5243 4. Date checklist prepared: October 5, 2000 5. Agency requesting checklist: City of Bremerton Building and Planning Department 6. Proposed timing or schedule (including phasing, if applicable): City will adopt the proposed ordinance and amend the zoning ordinance and official map within three months. 7. Do you have any plans for future additions, expansion, or further activity related to or connected with this proposal? If yes. explain. No TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY 8. List any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal. NA 9. Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? If yes, explain. An application for a special exception is pending which would modify the fi'ont yard setback requirement similar to what is, would be allowable with the proposed code and map amendment. 10. List any government approvals or permits that will be needed tbr your proposal, if known. Approval of the proposed ordinance is required by the city council. ! 1. Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. There are several questions later in this checklist that ask you to describe certain aspects of your proposal. You do not need to repeat those answers on this page. (Lead agencies may modify this form to include additional specific information on project description.) Proposal would allow a reduction in the front yard setback along Shore Drive. Proposal is to create a "Single Family Residential" SF-3SD zone and concurrently amend the city's official zoning map to establish the zone in the Shore Drive area of Bremerton. 12. Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section, township, and range, ffknown. Ifa proposal would occur over a range of area, provide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans ~ubmitted with any permit applications related to this checklist. Properties affected by the proposed SF-3-SD rezone are located on Shore Drive south of East 9th and East 11~ and east of Pitt and Trenton Avenues - most of the properties abutt Port Washington Narrows. B. ENVII~ONMENTAL ELEMENTS ',.. Earth a. General description of the site (circle one): Flat, rolling, hilly, steep slopes, mountainous, other ...... b. What is the steepest slope on the site (approx/mate percent slope)? NA for rezone. TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY c. What general types of soils are found on the Site (for example, clay, sand, gravel peat, muck)? If you know the classification of agricultural soils, specify them and note any prime farmland. NA for Rezone d. Are there surface indications or history of unstable soils in the immediate vicimty? If so, describe. NA for Rezone e. Describe the purpose, type, and approximate quantifies of any filling or grading proposed. Indicate source of fill. NA for Rezone f. Could erosion occur as a result of clearing, construction, or use? If so, generally describe. NA for Rezone g. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)? NA for Rezone h. Proposed measures to reduce or control erosion, or other impacts to the earth, if any: NA for Rezone a. Air a. What types of emissions to the air would result from the proposal (i.e., dust, automobile, odors, industrial wood smoke) during construction and when the project is completed? If any, generally describe and give approximate quantities if known. NA b. Are there any off-site sources of emissions or odor that may affect your proposal? If so, generally describe. There are a few vehicles a day which use Shore Drive and these produce exhaust. c. Proposed measures to reduce or control emissions or other impacts to air, if any: None proposed or required for the proposed above. TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY 3. Water a. Surface: 1) Is there any surface water body on or m the immediate vicinity of the site (including year-round and seasonal sn:eams, saltwater, lakes, ponds, wetlands)? If yes, describe type and provide names. If appropriate, state what stream or river it flows into. Yes - Port Washington Narrows a tributary to Puget Sound abuts the site. 2) Will the project require any work over, m, or adjacent to (within 200 feet) the described waters? If yes, please describe and attach available plans. NO 3) Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. Indicate the source of fill material. NA 4) Will the proposal require surface water withdrawals or diversions? Give general description, purpose, and approximate quantities if known. NA 5) Does the proposal lie within a 100-year floodplain? If so, note location on the site plan. NO 6) Does the proposal involve any discharges of waste materials to surface waters'? If so, describe the type of waste and anticipated volume of discharge. NA b. Ground: 1) Will ground water be withdrawn, or will water be discharged to ground water? Give general description, purpose, and approximate quantities if known. The lots and existing homes affected by the rezone are served with public water and sewer. 2) Describe waste material that will be discharged into the ground from septic tanks or other sources, If any (for example: Domestic sewage; industrial, containing the following chemicals...; agricultural; etc.). Describe the general size of the system, the number of such systems, the number of houses to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. NONE TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY c. Water nmoff(including stormwater): I) Describe the source ofrunoff(inclucling storm water) and method of collection and disposal, if any (include quantifies, if known). Where will this water flow? Will this water flow into other waters? If so, descn'be. Storm sewers available to collect storm water proposed actions will not affect storm water runoff. 2) Could waste materials enter ground or surface waters? If so, generally describe. NO d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: None are proposed or required by the proposed rezone. 4. Plants a. Check or circle types of vegetation found on the site: .-XX2JCXX deciduous tree: alder, maple, aspen, other -- evergreen tree: fir, cedar, pine, other ~'XXXX shrubs XLX3CXX grass -- pasture ~- crop or grain -- wet soft plants: cattail, buttercup, bullrush, skunk cabbage, other water plants: water lily, eelgrass, rnilfofl, other -- other types of vegetation b. What ldnd and amount of vegetation will be removed or altered? NONE c. List threatened or endangered species known to be on or near the site. None are evident on or near the site. Some species of salmon are listed as threatened. The proposed rezone action will not affect any habitat of any species of salmon - it is a built up area. d. Proposed landscaping, use of native plants, or other measures to preserve or enhance vegetation on the site, if any: NOT APPLICABLE 5. Animals a. Circle any birds and animals which have been observed on or near the site or are known to be on or near the site: birds: hawk, heron, eagle,~other: mammals: deer, bear, elk, beaver, other: fisl~: bass,~out, herrmg~ther: b. List any threatened or endangered species known to be on or near the site. See comment for 4c above. TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY C. IS the site part of a migration route? Lfso, explain. NO d. Proposed measures to preserve or enhance wildlife, if any: None of the propose or warranted by the proposed rezone action. 6. Energy and natural resources a. What lcmds of energy (elec~c, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy needs? Describe whether it will be used for heating, manufacturing, etc. Each of the several homes (approx. 47) are already served with gas, electric and in some cases wood stove fuel for heating and electricity for lighting. b. Would your project affect the potential use of solar energy by adjacent properties? If so, generally describe. NO c. What kinds of energy conservation features axe included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: Not Applicable 7. Environmental health a..Axe there any environmental health hazards, including exposure to tordc chemicals, risk of fire and explosion, spill, or hazardous waste, that could occur as a result of this proposal? If so, describe. NO 1) Describe special emergency services that might be required. No special emergency services are required for the rezone or eventual development which might occur in conformance to the rezone. 2) Proposed measures to reduce or control env/ronmental health hazards, if anY: None are proposed or warranted by the proposed rezone action. b. Noise I) What types of noise ex/st in the area wh/ch may affect your project (for example: traffic, equipment, operation, other)? Noise normally associated with residential living. 2) What types and levels of noise would be created by or associated with the project on a short-term or a long-term basis (for example: traffic, construction, operation, other)? Indi- cate what hours noise would come from the site. Noise normally associated with residential living. TO BE COMPLETED BY APPLICANT EYALUAT1ON FOR AGENCY USE ONLY 3) Proposed measures to reduce or control noise impacts, if any: None are proposed or warranted by the proposed rezone. 8. Land and shoreline use a. What is the current use of the site and adjacent properties? Single family residential b. Has the site been used for agriculture? If so, describe. NO c. Describe any structures on the site. There are approximately 47 houses w/garages and carports with in the rezone area. d. Will any structures be demolished? If so, what? NO e. What is the current zoning classification of the site? SF-3 f. What is the current comprehensive plan designation of the site? Low Density Residential g. If applicable, what is the current shoreline master program designation of the site? Residential h. Has any pan of the site been classified as an "environmentally sensitive" area? If so, specify. NO i. Approximately how many people would reside or work in the completed project? NA j. Approximately how many people would the completed project dmplace? NA k. Proposed measures to avoid or reduce displacement impacts, if any: NA TO BE COMPLETED BY APPLICANT EVALUATION FOIl. AGENCY USE ONLY 1. Proposed measures to ensure the proposal is compatible w/th existing and projected land uses and plans, if any: Proposed rezone changes only a setback requirement in the front yard. The new zone is the same as the existing zone in all other respects. 9. Housing a. Approximately how many units would be provided, if any? Indicate whether high, middle, or low-income housing. NA b. Approximately how many units, if any, would be eliminated? Indicate whether high, middle, or low-income housing. NONE c. Proposed measures to reduce or conlxol housing impacts, if any: None are proposed or warranted by the proposed rezone. I0. Aesthetics a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed? Approximately 30 feet b. What views in the immediate vicinity would be altered or obstructed? Views of the water are restricted by the presence of the houses already situated along Shore--Drive. The proposal will not change existing site development conditions. c. Proposed measures to reduce or control aesthetic impacts, if any: NA 11. Light and glare a. What type of light or glare will the proposal produce? What time of day would it mainly occur? NA b. Could light or glare fi-om the finished project be a safety hazard or interfere with views? NO c. What existing off-site sources of light or glare may affect your proposal? There is existing light and glare fi:om the residences located along Shore Drive and from vehicles using the street. d. Proposed measures to reduce or control light and glare impacts, if any: None are proposed or warranted by the proposed rezone action. TO BE COMPLETED BY APPLICANT EVALUATION FO R AGENCY USE ONLY 12. Recreation a. What designated and informal recreational opporumifies are in the Lmmediate vicinity? There are two small parks within the proposed rezone area. Also, Port Washington Narrows provides recreational opportunities for boaters, fishermen and beach walking. b. Would the proposed project displace any existing recreational uses? If so, describe. NO c. Proposed measures to reduce or control impacts on recreation, including recreation oppommities to be provided by the project or applicant, il'any: None are proposed or warranted by the proposed rezone. - 13. Historic and cultural preservation a. Are there any places or objects listed on, or proposed for, national, state, or local preservahon registers known to be on or next to the site? If so, generally describe. NO b. Generally describe any landmarks or evidence ofkistoric, archaeological, scientific, or cultural importance known to be on or next to the site. None have been found on the rezone site or are in the immediate vicinity. c. Proposed measures to reduce or control impacts, if any: None are proposed or wan-anted by the proposed rezone. 14. Transportation a. Identify public streets and highways serving the site, and describe proposed access to the existing street system. Show on site plans, if any. Shore Drive b. Is site currently served by public transit? If not, what is the approximate distance to the nearest transit stop? There are transit services on Trenton Avenue. c. How many parking spaces would the completed project have? How many would the project eliminate? The proposed rezones would not change the parking requirements for the area. d. Will the proposal require any new roads or streets, or improvements to existing roads or streets, not including driveways? If so, generally describe (indicate whether public or private). NO TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY e. Will the project use (or occur m the immediate vicinity of) water, rail, or air transporta- tion? If so, generally describe. Yes - Port Washington Narrows is approximately 60 - 70 to the south ~and south east of the rezone oz'ea. How many vehicular trips per day would be generated by the completed project? If known, indicate when peak volumes would occur. NA g. Proposed measures to reduce or control transportation impacts, if any: None are proposed or warranted by the proposed rezone. 15. Public services a. Would the project result m an increased need for public services (for example: fixe pro- tection, police protection, health care, schools, other)? If so, generally describe. NA b. Proposed measures to reduce or control direct impacts on public semces, if any. Shore Drive is already impacted by the existing nonconforming homes and accessory buildings found along Lower Shore Drive. There would be no change as a result of the proposed rezone. 16. Utilities a. Circle utilities currently available at the site: e~'-~ci~a~ b. Describe the utilities that are proposed for the project, the utility providing the service, and the general construction activities on the site or m the immediate vicinity which might be needed. None are proposed C. SIGNATURE The above answers are true and complete to the best of my knowledge. [ understand that the lead agency is relying on ~hem to make its decision. .~ Signature: .............. ~T. ................. ~...-~'.. ........................................ Date Submitted: TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY D. SUPPLEMENTAL SHEET FOP, NONPROJECT ACTIONS (do not use this sheet for project actions) Because these questions are very general, it may be helpful to read them m conjunction with the list of the elements of the environment. When answering these questions, be aware of the extent the proposal, or the types of activities likely to result from the proposal, would affect the item at a greater intensity or at a faster rate than if the proposal were not in~lemented. Respond briefly and in general 1. How would the proposal be likely to increase discharge to water; emissions to air; pro- duction, storage, or release of toxic or hazardous substances; or production of noise? No. The proposed rezone is essentially the same as the existing SF-3 zone. _The only change in the new zone is to reduce the front yard setback which reflects existing development conditions. Proposed measures to avoid or reduce such increases are: Not Applicable 2. How would the proposal be likely to affect plants, animals, fish, or rnarme life? No, the reduced setback affects the relationship of the houses and accessory structures to the street and not to the water front. Proposed measures to protect or conserve plants, animals, fish, or manne life are: None are proposed or warranted by the proposed rezone action 3. Ho~v would the proposal be likely to deplete energy or natural resources? No - see commnet for D-1 above. Proposed measures to protect or conserve energy and natural resources are: None are required or are wan'anted by the proposed rezone action. 4. How would the proposal be likely to use or affect environmentally sensitive areas or areas designated (or eligible or under study) for governmental protection; such as parks, wilderness, wild and scenic rivers, threatened or endangered species habitat, h/storic or cultural sites, wetlands, floodplains, or prime farmlands? The proposed rezone or resulting development or site redevelopment which takes advantage of the reduced setback fi.om Shore Drive will not affect an environmentally sensitive area. Proposed measures to protect such resources or to avoid or reduce impacts are: None are proposed or warranted by the proposed rezone. TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY 5. How would the proposal be likely to affect land and shoreline use, including whether it would allow or encourage land or shoreline uses incompatible with existing plans? The proposed would have the affect of giving property owners more room and more setback area from the shoreline. Proposed measures to avoid or reduce shoreline and land use impacts are: The proposed rezone is a mitigate measure to minimize future setback encroachments into the required "front yard" adjacent to the shoreline. 6. How would the proposal be likely to increase demands on transportation or public services and utilities.'? No change is existing conditions is expected. Proposed measures to reduce or respond to such demand(s) are: None are proposed or warranted by the proposed rezone. 7. Identify, if possible, whether the proposal may conflict with local, state, or federal laws or requirements for the protection of the environment. No conflicts have been identified with other local ordinances, state or federal laws which would protect environment. Memorandum 2 s BREMERTON BUILDING DEPARTMENT I~" ~ ~,~. ' To: Bill Palmer, Inte~m Director Department of Community Development, City of Bremerton From: ~eside~ts of (lowe0 Sho~e Drive Date: ~/26/00 Fie: Front yard setbacks along (lower) Shore Drive _ Due to lot size limitations of waterfront properties along Shore Drive, we the residents of (lower) Shore Drive, request that you amend the City of Bremerton Zoning Ordinance and the Bremerton Municipal Code to reduce the front yard setback requirements from the current 15' (for residential buildings) and 20' (for garages) to a combined 5' for both. This reduction in setback would pertain to the one way portion of (lower) Shore Drive beginning at the intersection of East l0'h Street to Trenton Avenue continuing along the t~vo way portion of Shore Drive until the street ends to the North. Listed below are names of residents along (lower) Shore Drive in support of this initiative: Name Address Memorandum BREMERTON BUILDING DEPARTMENT To: Bill Palmer, Interim Director Department of Community Development, City of Bremerton From: Residents of (lower) Shore Drive Date: 6/26/00 Fie: Front yard setbacks along (lower) Shore Drive Due to lot size limitations of waterfront properties along Shore Drive, we the residents of (lower) Shore Drive, request that you amend the City of Bremerton Zoning Ordinance and the Bremerton Municipal Code to reduce the front yard setback requirements from the current 15' (for residential buildings) and 20' (for garages) to a combined 5' for both. This reduction in setback would pertain to the one way portion of (lower) Shore Drive beginning at the intersection of East l0Th Street to Trenton Avenue continuing along the txvo way portion of Shore Drive until the street ends to the North. Listed below are names of residents along (lower) Shore Drive in support of this initiative: Name Address ri .'~/~ //ri '4 Memorandum JU~ 9, 7 ZUt:i BREMERTON BUILDING DEPARTMENT To: Bill Palmer, Interim Director Department °f C°mmunity Devel°pment' City °t' BremertR ~ ~ .:[~ ~ ~7 .~ ~,~'ji From: Residents of (lower) Shore Drive Date: 6/26/00 JUN 2 ~ ~idU[; Re: Front yard setbacks along (lower) Shore Drive BREMERTON BUILDING DEPART~,~ENT Due to lot size limitations of waterfront prope~ies along Shore Drive, we the residents of (lower) Shore Drive, request that you amend the City of Bremerton Zoning Ordinance and the Bremerton Municipal Code to reduce the ~ont yard setback requirements from the cu~ent 15' (for residential buildings) and 20' (for garages) to a combined 5' for both. ~is reduction in setback would pe~ain to the one way potion of (lower) Shore Drive be~ing at the intersection of East 10'~ Street to Trenton Avenue continuing along the ~o way portion of Shore Dhve until the street ends to the No~h. Listed below are names of residents along (lower) Shore Drive in support of this i~tiative: Name Address /'~ ' I~, - -- Memorandum JUN BREMERTON To: Bill _Palmer, Interim Director BUILBING DEPARTMENT Department of Community Development, City of Bremerton From: :Residents of (lower) Shore Drive Date: 6/24/00 Re: Front yard setbacks along (lower) Shore Drive Due to lot size limitations of waterfront properties along Shore Drive, we the residents of (lower) Shore Drive, request that you amend the City of Bremerton Zoning Ordinance and the Bremerton Municipal Code to reduce the front yard setback requirements from the current 15' (for residential buildings) and 20' (for garages) to a combined 5' for both. This reduction in setback would pertain to the one way portion of (lower) Shore Drive beginning at the intersection of East 10'" Street to Trenton Avenue continuing along the two way portion of Shore Drive until the street ends to the North. Listed below are names of residents along (lower) Shore Drive in support of this initiative: Name Address " '/ ' '...-~"-zf'~_ _ . _ .~ ' Io% PE IT CENTER BREMERTON zs~ Fou~h Street, B~me~on WA ~S337 BUILDING DEPARTMENT Phone: (3~0~7S-~275 F~: (360)47S-SZ7S Cz] Request for Review of Decision of Director, TfPE Planning Commission or to Appeal a Cease & Desist Order Code Section ~~t~ Z. I o O Z .. ~ FY Reference: Zoning ~our nme) / ¢our mailing adbess) / (Telephone Number) Plebe pro,de a concise s~tement of~e specific fining(s) or conclusion(s) to be reviewed, tog~er wi~ material facts clmmed to suppo~ your contemions. Use additional paper ifnecess~. Ple~e provide a brief statement of ae relief sou~t ~d ~e repons why ~e decisio~action should be reversed, modified or rem~ded. Use ad~tional pages ifnecessa~. Fee: Review to Ci.ty Council - $170.00 Review to Planning Commission - $120.00 (Only applicable to a Cease & Desist Order Appeal) Reviews will be scheduled to be heard before the Bremerton City Council as soon as possible, allowing for adequate preparation and notice. You xvill receive written notification of the Council hearing date mailed to your address given above. The Ci.ty Council decision is the final legislative decision. Last printed 12/01/99 2:22 PMC:LMy Documents~ormCApplicafionsLRequest for Review of Decision of Director. doc City Of Bremerton Notice of Appeal / Public Hearing Appellant: Paul Scheyer / Hellen Miller 2111 Madrona Point Drive, P.O. Box 788 Bremerton, WA 98337 Applicant: city of Bremerton Nature of Application Subject To Appeal: Determination of Non-Significance for the proposed rezone along Shore Drive from SF-3 TO SF-3 SD Location: Shore Drive in the Manette area of Bremerton Proposal and Action: The appeal filed by Paul Scheyer and Helen Miller cites the failure of the State Environmental Policy Act (SEPA) Responsible Official "to evaluate the cumulative impact of additional requests for similar action in Bremerton." The appellant's remedy is for the SEPA Official to require an Environmental Impact Statement be prepared prior to a decision being made by the City of Bremer~on on the rezone. File No: Pc 00 -0055 Public Hearing and Submittal of Comments: The City ~ Breanetton has rzce, ived the above appcal as drscribed in this NOTICE and has scheduled a public lmmag to be held by thc City Council on Wednesday, November !.5, 20O0. The matter 'has been scheduled 9.n th~ City Council's Public Hearing Agenda, which begins at 6:00 P.M. in the City Council's Public Hearing Room located at 239 Fourth Street. All interested pea'sons may appear and provide testimony on the above referenced appeal. Thc City Council will receive written comments and other exhibits on the above referenced appeal up to 4:30 P.M. on thc day of the Public Hearing. Written comm~l'~ a~l other exhibit~ may aim be submilled to the City Council prior to the clone of the Public Hearing. Cop~cs of thc appeal, slaff rq~orts a~d cop~s of ~ maKe=Is ~n be obtained from the Building and Planning ~ which is located at 286 Fourth Stma. Please direct any questions, conunents or reque~ for additional information to Bill Palmer at the Building and Planning Department or by phone at (360) 478-5275. Date of Posting: Deadline for Comment: ~~~oo/ ;i:r t.:i~--. ~' .,,r~ ~ ' I ALKING PAPER 2{[.J~'~;.Pi1BER~01)'0~.~, ,, crrY COUNCIL MEETING - PUBLIC' CO.N/EMENT PERIOD , :" ...... -~" SUBJECT: CITY PROPOSED REZONE OF A PORTION OF SHORE DRIVE T~ GOXiERN~'G ~GL~ATIONS ~QL~. THAT TI~ CITY .&X,.~ND T~ BSS,,~ BEFO~ ATTE5,'fl~T~G T~S ~ZO~ ACTION. We have been told that tiffs is just a S5..I.~L change ((BSMP ha~ to be atnended i~ accordance ,.,~lt the Department of Ecologl, rule\, ~' contained in the RCH.:'s and I.~5-t and in the BS3,IP)) ~I,g ~ZONE IS I~7~IN' THE 200 FEET OF ~E SHO~LI:~< W~ICH CONTROLLED BY ~E B&~IP. TO C~4NGE ~E BSMP (Chapt 3 - 26, Table 3-2) ~QUI~S AN A~tlEND2ItENZ ~tus the required proce~res hm,e not been fo~owed for th~, or SE24. O'70LA ~ON OF SE~4 PROCES, g It'24C 197-10 ~IS ~ZOz~ ~zOULD C~A~ A P~CIDEz~T FORA 5 FOOT SETBAK FOR ALL ,gHO~LINE A~AS IN B~MERTON- NO EE41. L54 ~ON O.F CU3~.rL4 I~IlPA CT ~4S BEEN C02VD UCTED. THE SEPA DNS WAS SUBMITTED TO ECOLOGY ON 13 OCT, 2000 ~Pz~ENTLY ~ITHOUT THE E~r~O~ENTAL CHECKLIST. THE CHECKLIST SHOWED L~ IN DCD FILES, DATED 18 OCTOBER --- ~,~ICH WAS, COINCIDENTALLY THE S~ME DAY THE .~PEAL WAS FILED, AT B'~ICH TIME T~RE WAS NO CHECKLIST IN THE FILES. (those DCD~es agt~n O. THERE IS A NEED TO FOLLOW TYPE II DECISION REQ/~RES~NTS - FI~INGS OF[~CT ~&~ CONCLUSIONS ~&VE NOT BEEN DONE (BMC 21.02.845)..~DITIONALLY T~ REQU~D 'CRITICAL L~ ~EA O~INMNCE REVIEW' ~ THE 'STORM WATER O~IN~&NCE REVIEW' ~&VE NOT BEEN ACCOS~LISHED. CREATI~NG MORE IS~E~IE.~LE S[~FACES BY T~ ENACTMENT OF T~S PROPOSED REZONE WOULD BE PERIOUSLY CLOSE TO SERIOS VIOLATION OF DEP.~TMENT OF ECOLOGY' REGULATIONS. ~E PE~ON Iz~ ~E COUNCIL ME~IBE~ / PUBLIC LSrFO~I~4 ~ON ~4 CKE~ IS FROM A F.~ED ATTE.5/~T TO PUSH ~OUGH AN "OVE~AYZO~" TO ACCOk,~LISH TI~, S.~. SETBACK AS T~S ~ZO~. ~XT A "SPECL~ EXCEP~ON PE~,flT" WAS AT~5,~TED BY DCD - Xt,~CH ~SO F~ED. ~IT~R OF T~SE ATTEN~TS k,~T T~ I.EG~ C~E~A. NOW, N~. P,~k,,~R A~ ~,~. ST~C~ .~ ATTEN~T~G TO G~T A V.~.I.&NCE, DISGUISED AS THIS REZONE. ~k~ E SO5/~ SL~PORT~'E DOCUZ,ffiNTS, ~- T~. FO~M OF AN OLD, L~LATED PETITION - HAS M,~E IT ~TO T~ P~SNTATION TON2GHT - ~k~_E OF T~ LEG~LY SL~N'~TED CON'~,~NTS (EV~ENCE) BOTH Xk~TTEN AN~ VE~,~. - ,~PE~ TO HAVE BEEN !GNO~D OR DELETED FROM TO~GHT's P~SENTATION BY DCD. T}~S OF COL~SE IS ~FFECT B,'~SHA~L~G OF EV~ENCE A~ A VIOLATION OF DL~ PROCESS - AN~ MOST DEF~TELY A DEP~X~'G OF T~ CITY COL~C~ k,~,~ERS OF TI~ FLZL AN~ B,~TI.M. FACTS - AN ~SL~T TO T~ COL~C~5~k,~ERS ~TEG~TY. THIS IS A REQUEST THAT THE REZONE BE DENIF~D - THIS RUSH TO JL-DGEMENT WITHOUT SL~FICIENT BACKGROL~rD INFORxMATIC)N HAV~G BEEN PROVIDED THE COL~CIL MEMEBERS WOULD HAVE LONG LASTING CONSEQLTENCES FOR THE. ENTI]~. CITY. Sh~c. elerb; sub~rdtted HELEN MLLLER BREMERTON P,~O. BOX 788 ~ (~' . r"i~,{ ~ :* ~' TALKING P.4a:'ER ~ ~~B~r-~000 CITX COUNCIL MEETING - PUBLIC COS,[5~IENT PERIOD · x T SLBJECT: CITY PROPOSED REZONE OF A PORTION OF SHORE DRIVE BEFO~ I BEG~ N~' COS~NTS ON SHO~ D~,~E, I WOULD LIKE TO ~.[&KE OBSERVATION OF B~MERTON INTERNAL OPERATIONS: 1. THE FILES ACCL~IULATED BY DCD CONCEDING L.&N~ USE .&N~ OTHER ISSUES PUBLIC DATA A~ ~ TO BE ACCESS~LE TO TI~ PL~LIC L~ON X~TTEN ~PLK ATI.~ T~S IS SPECkeD ~ T~ PL~LIC ~CO~S ACT. 2. THESE FILES, TOGETHER WITH THE AL~IO T.~ES RECO~ING COUNCIL PLANNING CO~ISSION MEETINGS .~E THE OFFICIAL RECO~S SUBST~'TIATING CITY ACTIONS; AN~ ,~ ITEMS OF EVIDENCE USED TO SL~STANTIATE AN~ ~-C~ATE T~ ACTIONS AN~ DECISIONS OF T~ CITY - ~ A COL~T OF LAW. 3. T~ MAYOR, T~ CO5.~,,ffSSION AN~ T~ COU~C~ HAVE LC)NO BEEN M.~E AW~ THAT THE A[~IO T.~ES, AS THE ONLY OFFICIAL RECO~S OF T~. COUNCIL .~ COS~/IISSION MEETINGS ~E LACKING IN SEVE~kL IS,~ORT.&N7 RESPECTS - PE~.~S T~ MOST ~,~ORTANT OF X~CH HAS BEEN T~ Ok/fiSSION OF ~E~X~G .~L T~ X~TTEN CO~NTS S~5/HTTED TO T~SE CITY BODES ~G~G TE~ MATTERS BEFO~ '~M; A~ NOT VEnalLY ~ENT~G EV~ENCE AN~ EX,ITS P~SENTED T~ COL~SE OF T~ ~.~'GS.. 4. T~ MAYOR A~ T~ DCD HAVE LONG BEEN M~E AW.~ THAT THE DCD FILES ,~E INFERIO~ I~ROPER, z~ ~,~S~N~LED. ~E~OR A~ ~ROPER ~ THAT AL~~ITY HAS BEEN COk/~RONffSED BY T~ LACK OF PROCESS A~ SIGNATL~S, NON ~E~ICATION OF O~G~ATOR OR DATES ON MA~~ OF T~ DOCL~/~NTS; A~ A NON E)GSTENT CONTROL Xk,~CH IGNO~S T~ S2,~LEST F~E M.~TENANCE A~ CONSOL PROCEDL~S SUCH AS LOGG~G ITEMS AN~ F~ES ~ OR OUT OF T~ FOLDER OR SIGN OUT S~ETS FOR T~ FOLDERS T~MSELVES. AG.~, PROB~LY T~ MOST SEROUS k,,ffSH.A~L~G HAS BEEN T~ DIS2~PE.~CE ,&~ SELDEN .~PE~CE OF CRITICAL, DOCL~ENTS FROM / IN T~ FILES. THIS ~kS ~PENED SEVEraL TIMES IN THE PAST MONTH, ~ IS BEING CONSIDERED FOR PROSECUTION UN~ER THE MISDEME.~NOR C~GE OF T~.~ERING WITH EVIDENCE. PE~S T~ STATUS OF TI~.SE F~ES CAN BEST BE ILLUSTraTED BY A RECENT INCIDENT: DCD's ~,'~. ST~C~' WAS L~L~LE TO F~ A~' DOCL~NTATION ~* T~ F2,ES X~CH WOL~D PROVE THAT TWO PETITIONERS H.~ "STAN~G" ~ T~ ISSL~ BE~-G .~PE,~ED AN~ T~BY DISS, flSSED Tt~ ,~PLICATION FOR A ~~G BEFO~ T~ PLANinG CON,~,ffSSION. aBOUT A Xt,~EK LATER X~%~.N k'~. ST~C~' ~O~X,~D T~ - ( PETITIONERS OF ~S DECISION T~ PETITIONERS ENTE~D T~ DCD ~ES SO )N L~ER T~ AUTHO~TY OF T~ PL~LIC ~CO~S ACT. AN~) MANAGED TO F~ NIA,IEROUS DOCL~,~NTS DET,~G T~ P~ 3R ~X OLX, N~NT ~- T~ MATTER TO BE .~PE.~ED. ,~N~ P~SN~TED SO~.~ OF T~M TO T~ CITY ATTORNEY. ((L~FOR~?~X~4 TE~ ~E~ ~4S BEEN NO ~JIEDI.4 ~ON OR ~A C~ON OR O~ER T4NGIBLE ~S[T ~ OF ~4 T DISCLOSU~ TO DATE)) POOR POOR FILES ~1,~EN A SENIOR CITY E~.~LOYEE IS UNABLE TO LOCATE INFO~L&TION~ Wt;:~e'hndersi~ed, oppose ~e proposed variance allo~ng building within five feet of . t~ad on~Sho~e Drive. We believe it ~11 have a negmive impact on ~ique qualiW of ,..~ffnei~hborhood ~d presents a potential h~ard to the many pedestrians who utilize ' ~. ~h[ road. We also strongly protest the lack of co~unicmion to the public regarding this ~ ' action and the poor timing of this proposed decision. 10.