HomeMy WebLinkAbout04/28/04 AGENDA FILE
239 4Ih Street · Bremerton, WA 98337 · Phone (360) 478-5280 · Fax (360) 478-5251
CITY COUNCIL MEETING AGENDA
APRIL 28, 2004
1. PRE-COUNCIL STUDY SESSION: 5:00 - 5:30 P.M. in Council Conference Room
A. General Council Business
2. CALL TO ORDER: 5:30 P.M. in Council Chambers
A. Pledge of Allegiance
B. Invocation
3. CONSENT AGENDA
A. Authorization for 1 additional full-time regular Electronics Technician for a two-month
period; and I temporary Electronics Technician for a period not to exceed 5 months
(#AB04-073)
B. Termination of Water Transmission Agreement with NORTHWEST CORPORATE CAMPUS
LLC (#AB04-074)
C. Construction Agreement with PUGET SOUND ENERGY for Underground Conversion
Project (#AB04-077)
4. CLAIMS/CHECK REGISTERS
5. MAYOR'S REPORT
6. NEW BUSINESS - There are no New Business items this week
7. PUBLIC HEARINGS - ORDINANCES & RESOLUTIONS
A. Ordinance No. 4894 [Second Reading] amending Chapter 2.13 of the Bremerton
Municipal Code related to filings and appeal fees regarding proceedings before the
Administrative Hearing Examiner (#AB04-070)
B. Ordinance No. 4895 [Second Reading] amending Chapters 3.86 and 3.50 relating to
utility taxes (#AB04-071)
C. Ordinance [First Reading] vacating a portion of First Street located between Marion
and Yantic Avenues (flAB04-075)
D. Resolution No. 2925, in support of locating a NASCAR Racing Facility in Kitsap
County (#AB04-076)
8. PUBLIC RECOGNITION - Comments limited to 3-minutes
9. COUNCIL MEMBER REPORTS
10, ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING
E-mail: citycouncil@ci.bremerton.wa.us · Web: www.ci.bremerton.wa.us
DATE SUBMITTED: BILL # Or'l- O 7.3
AGENDA BILL
CITY OF BREMERTON 3 h
CITY COUNCIL
SUBJECT: Authorization for Additional Committee Meeting Date: April 20, 2004
Electronics Technicians CO~CIL MEET~G Date: April 28, 2004
Depa~ment: ~blic ~s & Utilities
Presenter: R.ETulp, PW Ops Mgr
Phone: 473-5753
SUM~RY: It is recommended that the Council autho~ze one (1) addition~ ~ll-time regul~
Electronics Technician position for a two (2) momh period (June & July 2004) and one (1) tempor~
Electronics Tec~ician for a period not to exceed five (5) months. The employee hired for the regular
position would be in training as the replacement for ~. Glenn Sheph~d, Electro,cs Technician,
who retires on July 31, 2004. These positions would also be utilized in the additional tasks c~emly
being assigned to Electronics such as the Govemmem Cemer ~d Conference Cemer and will allow
electronics perso~el to meet established deadlines (See Attachmems).
ATTACHMENTS: Org~izational Cha~ for Public Works Opermions Division and Labor Cost
Estimates ~om affected projects.
FISCAL ~PACTS (Include Budgeted ~ount): Funding for these positions would be obtained
~om the project ~nds ($23,500.00) for both the Govemmem Cemer ~d Conference Cemer. There
would be no additional ~nds required from the City for these positions. There will be no impact on
equipmem or facilities.
APPROVALS: ~ ~ /~ ~ ~
DEP~ O~CTOR: .~ ~' 5', ~--~
ATTO~Y: ~-~~/~-~ ~y. *
CITY
MAYOR:
FISC~GET: ",: - CONSE~ AGE~A
CO~C~ P~S~ENT:
~COMME~DED MOTION: That the City Council ap ve an additional $23,500.00 in the
Ele~ronics Division Labor Account md the tempora~ increase of one ~ll-time regul~ Electronics
Technician and the hiring of one p~-time Electronics Technician.
COUNCIL ACTION: [] Approve [] Deny [] Table [] Continue [] No Action
CITY OF BREMERTON
DEPARTMENT OF PUBLIC WORKS & UTILITIES
PUBLIC WORKS OPERATIONS
I tvlAY()f'~( I
Honorable Cary Bozeman
I
I flT,-"T('" elF UUEI If' liV"RKC 8. I f'"I' 'TI( ~ I
'.,' , \,:-\.,- )r-:._ . ,_ ." ". ,.) '.',~, I ,1..., "".~
W. Eugene Sampley, P.E.
I
I PUBLIC V,;Uf,KS ~J::~~~ IONS MAWle,])I
I
I I I I
I ('J;',]I ,':) ":.;;Ui,I'! I j"I'T C"I 'en ~'-"-P\f Sf'll' ('j <1-;'/1 I '<[Rei') ''''f'''''': "P' '>' "";1 I ',:,-rr;<;:T r 'C;;FR'.!I'-'c ::,!-,).~(. ."::, 'P' I
~,u .1 ,~-j ~~n~)~e;st~~~ :.' ,~'" \ '.,. ,.,.., ",. ,"'_','0_ ',j, .._ . u, , '.' . , , __.. .... ..' , '. . '..' L _ ' _ _..' ',~ ,., "
Greg Cryder Colen Corey Scott Corey
N r ';!::CH j SI"" ",1<>' 'eef,v ",p,,- >' I 'RC;'T"",' . "I ~:r ;::f; -,;c,c., ';i(' I
. ,-,- ..t''''):-'-'>- '-..<
'. ....'. ~" ,-' '-, -- '. --'..' --. ...-. '.,' - .,"~ -- '." - , ~.
Tom Baker Jeff Ingham John Corey Terry Devery
:;L[:,:Tr~:Ct; I SIC;!~ Slj(iF' Sf:l~'i' 5F[C I ,'"." [''1'1''''' ,'" ", I ';1 RU.":- ::;1,:>,'\'\;1'.' I
..: r ,.r:: ___, .) _ ',". ,'",;. .j'- c: , ~,,'
Jeff Collins Brian Thompson Dean Smith Brian Brewer
[,-yel! :;:H I Tn~~:i:iV:~~~:O~PI C I S:;::;>F:r::T SEP'/iCE :.>'-'t::- I
James Dean James lovinelli
r:..b:T -rE-Ci-! I "I"" "u"-",, I "'"'CPT"" 'c I
_' -'c. -'- I .~ ',1,\.,,_ ,_" , \" " '; __, ,-,. '.t" ',.' I __"~ " C"';",
Glenn Shephard Ghryn Hobson Mike Hart
" I
C'. (r:T -T,:CH
:U(:k::E-J LJ:\.'f:L E'_Fe! I
Steve Reed
, Individual will be on-board replacement for Glen Shephard who retires July 31, 2004
ESTIMATED LABOR COSTS
Government Center
Install (horizontal) cabling (data & communications) 6t~ floor and partial 5t~ floor.
Install (vertical) trunk lines from basement to 6th floor.
Labor: $12,500.00
Materials: $16,000.00
Equipment: $ 1,000.00
Total: $29,500.00
Convention Center
Labor: $11,000.00
Materials: $18,800.00
PBX Equipment: $19~850.00
Total: $49,650.00
DATE SUBMITTED: April 20, 2004 BILL # 0 q- o 7q
AGENDA BILL
CiTY OF BREMERTON 3 B
C1TY COUNCIL
SUBJECT: Authorization to Seek Committee Meeting Date: 4/20/04
Bankruptcy Court Approval to Terminate or COUNCIL MEETING Date: 4/28/04
Amend Water Transmission Agreement with Department: City Attorney's Office
Northwest Corporate Campus, LLC Presenter: Roger A. Lubovich
Phone: 2345
SUMMARY: The current alignment for the proposed water transmission main to be developed for
the West 580 Pressure Zone mns from the existing pump station to Old Clifton Road through the
NWCC property. Due to the bankruptcy of NWCC and the need to proceed with this project, a new
alignment is proposed for the transmission main on City property adjacent to the NWCC property. To
implement this new alignment, it is necessary to seek bankruptcy approval to terminate or amend the
May 2001 agreement with Northwest Corporate Campus, LLC.
ATTACHMENTS:
1. Agreement with Northwest Corporate Campus, LLC
2. Letter to James L. Day and attachment requesting new transmission main alignment
FISCAL IMPACTS (Include Budgeted Amount):
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNC~ PRES~ENT:
RECOMME~ED MOTION:
I move to authorize the City Attorney to seek bankruptcy court approv~ ~d to take all necessary
action including entering into appropriate agreements to terminate or amend the Water Transmission
Agreement with Noahwest Co,orate Cmpus, LLC in order to proceed with an alternate alignment.
COUNCIL ACTION: [] Approve [] Deny' ~?t~l--] Table [] Continue [] No Action
Office of the City Attorney
Roger A. Lubovich, City Attorney Te!360-4~.2345
Brem~rt0~, WA ~3:7
March 4, 2004 ' :
James L. Day
Bush Strout & Komf¢ld
601 Union Street, Suite $$00
Seattle, WA 98101
Re: Northwest Corporate Campus
Dear Mr. Day:
This letter is a follow-up to our recent telephone conversation during which I agreed to
provide you with information relating to the City's proposed West 580 zone pump station
and water transmission main plan that affects the Northwest Corporate Campus (NWCC).
The City is now proposing to 1) modify the alignment of the water main transmission and
distribution lines and 2) change the responsibility for initial development and payment of
the same. Additionally, I would also like to present to you an issue related to a boundary
line adjustment and the effect on the City's interest of a potential foreclosure of existing
deed of trusts on the NWCC property.
I. Water Transmission and Distribution Lines.
Alignment. The current alignment runs southwest from the existing pump station to Old
Clifton Road and crosses both McCormick Land Company (MLC) property and the
NWCC property. Pursuant to the NWCC development agreement, NWCC granted the
City an easement recorded on or about September 19, 2003 for the current alignment. The
new proposed alignment runs south from the existing pump station to Old Clifton Road,
east of and somewhat parallel to the current alignment, taking advantage of an existing
forest road (see attached). The proposed alignment does not cross NWCC land but will
be constructed solely on City and MLC land. This alignment minimizes the amount of
grading required to install the water main and is a more direct route to Old Clifton Road.
Responsibility for Development. As to the responsibility for development of the lines,
originally the City was responsible for installing the water main transmission line from
the pump station through the NWCC property to a water reservoir and NWCC was
responsible for installing a distribution line back to its campus for its use. By agreement
executed May 16, 2001, the parties agreed to modify this concept by providing that the
City would basically build both the transmission and distribution lines outside the campus
James L. Day
March 4, 2004
Page 2
property and NWCC would build the transmission and distribution lines within NWCC.
The new proposal is for MLC to construct the transmission main at their expense with the
intent that a latecomer's agreement be executed so that they can recover some of the costs
for construction of the transmission main. MLC has tentatively agreed to this concept. It
is intended that properties requiring domestic and fireftow service from the City will be
served via metered interties with the Port Orchard water system which would be
connected to the City of Bremerton's system. NWCC and MLC development would be
responsible for the construction of the distribution system from their respective intertie to
their property line. Additionally, the properties will also be responsible to participate in
future distribution system improvements in Old Clifton Road to the new reservoir when
constructed by the City. This would be through an LID or other similar agreement or
arrangement.
Impact on NWCC. Looking at this change with respect to NWCC, the new alignment
eliminates the need for NWCC to construct transmission main improvements now as is
required by the existing agreement. The distribution main improvements can be
postponed until the NWCC is under construction. The property will be encumbered by
the MLC latecomer's agreement which will require some fair share monetary
contribution when service is requested. Participation in the future distribution system in
Old Clifton Road may be handled by posting a bond or by executing an LID agreement.
In general, this new proposal should expedite construction of the W580 zone, reduce the
upfront construction costs for NWCC, and allow for cost sharing among the interested
parties. Under this proposal, the May 16, 2001 agreement between the City of
Bremerton and NWCC is no longer be necessary and would be terminated since it would
no longer reflect the changed responsibilities of the parties.
II. Boundary Line Adjustment.
On or about November 9 1999, Deeds of Trust were recorded on the NWCC property by
NWCC. Subsequently, on or about September 21,2000, deeds between the City of
Bremerton and NWCC were recorded on the property to reflect a boundary line
adjustment which I believe was requested by NWCC. The original Deeds of Tmst were
never amended to reflect the newly recorded property description. Upon foreclosure of
the Deed or Deeds of Trust, it is my understanding that the City loses its property interest
on its newly acquired parcel and the newly added parcel to the NWCC will not be
foreclosed upon even though it is now part of the new NWCC recorded property
description. In any event, there now appears to be a cloud on the title to the property. It
is my desire that either the boundary line adjustment be revoked or the deed of Trust
modified to reflect the current recorded description for the property. It is my
understanding that the property received by the City in the boundary line adjustment
James L. Day
March 4, 2004
Page $
exchange is less developable than the property NWCC received therefore it would be
more beneficial for NWCC if the Deeds of Trust were amended.
Thank you for your assistance on these matters.
Sincerely,
Enclosure
RAL:tvs
7
West 580 Zone TOPO
ORIGINAL
AGREEMENT
An AGREEMENT between the City of Bremerton and
Northwest Corporate Campus LLC, regarding construction of
water transmission and distribution system improvements.
This Agreement is entered into this 16th day of May, 2001, between the City of
Bremerton, a municipal corporation (the City), and Northwest Corporate Campus LLC, a
Washington limited liability company (NWCC), hereinafter collectively referred to as "the
Parties".
WHEREAS, NWCC proposes to develop property generally ·located north of
Clifton Road Southwest and west of Anderson Hill Road within the City limits and City
water service area; and
WHEREAS, the City has agreed to expand its water supply system by
developing and constructing a new water pressure zone ("West 540 Pressure Zone") to
provide sufficient water flow and pressure to serve the properties within its water service
area, including the NWCC development; and
WHEREAS, NWCC is responsible for development of a water distribution system
which generally includes construction of a water distribution main from the location of a
future reservoir into its proposed development; and
Agreement, Construction of System ImproVements
Page 1 of 6
WHEREAS, an interim connection to the City of Port Orchard transmission-
distribution water main in Clifton Road Southwest will be provided to allow deferral of
certain portions of the West 540 Pressure Zone improvements; and
WHEREAS, the City and NWCC mutually desire to define their respective
responsibilities for construction of the transmission and distribution mains in Clifton
Road Southwest and Campus Parkway to better serve the project schedule and the
funding capabilities of the Parties, while maintaining the respective costs assigned to
each party for the water system development;
NOW, THEREFORE, THE CITY AND NWCC HEREBY ENTER INTO THE
FOLLOWING AGREEMENT:
Agreement, Construction of System Improvements
Page 2 of 6
SECTION I, PURPOSE.
If the Parties proceeded independently:
The City would be responsible for constructing approximately 6,600 lineal feet
of transmission main in Campus Parkway and approximately 4,735 lineal feet of
transmission main in' Clifton Road Southwest.
NWCC would be responsible for constructing approximately 6,600 lineal feet
of distribution main in Campus Parkway and approximately 4,735 lineal feet of
distribution main in Clifton Road Southwest.
The purpose of this Aqreement is to:
1. Define the Parties' respective responsibilities for design and construction of
the transmission and distribution water main systems along Clifton Road and
Campus Parkway from a future reservoir location to a mutually agreed point
of connection to the City's water system.
2. Adjust the Parties' respective design and construction responsibilities without
altering the respective overall costs that would be incurred by each party if the
Parties proceeded independently.
Agreement, Construction of System Improvements
II Page 3 of 6
SECTION I!, AGREEMENT.
In furtherance of the above purposes, the Parties agree that:
The City and NWCC will initially focus construction of transmission and
distribution main improvements in Campus Parkway with an interim connection to
the City of Port Orchard water system at Clifton Road Southwest, to provide fire
flow requirements and to defer construction of transmission and distribution main
improvements in Clifton Road Southwest.
SECTION III, RESPONSIBILITIES OF THE PARTIES.
1. To facilitate expeditious construction of transmission and distribution mains to
serve NWCC's development, the City will design and construct the following
improvements, all as shown on "Exhibit A", attached herewith:
A. Transmission main from the City's Pump Station 2A to NWCC's
northeasterly property boundary.
B. Transmission main from NWCC's northeasterly property boundary to
Campus Parkway, and in Campus Parkway to the mutually-agreed point
of connection at Campus Parkway roadway Station 51+40.
C. Temporary connection between the Campus Parkway tranSmission and
distribution mains approximately at Campus Parkway roadway Station
51+40.
Agreement, Construction of System Improvements
Page 4 of 6
D. A transmission main and a distribution main in Clifton Road Southwest,
from a future reservoir site to Campus Parkway.
E. Interim fire-flow connection to the City of Port Orchard water system
approximately at the intersection of Campus Parkway and Clifton Road
Southwest.
2. To facilitate expeditious construction of transmission and distribution mains to
serve NWCC's development, NWCC will design and/or construct, as
applicable, the following improvements, also as shown on "Exhibit A",
attached herewith:
A. Transmission and a distribution main in Campus Parkway, from Clifton
Road SW to the mutually-agreed point of connection at Campus Parkway
roadway Station 51 +40.
B. Remove the temporary connection between the CampUs Parkway
transmission and distribution mains at Campus Parkway roadway Station
51+40, at such time that NWCC extends its distribution system northerly
of that connection point.
Agreement, Construction of System Improvements
Page5 of 6
This Agreement is entered into by the City of Bremerton and Northwest
Corporate Campus on the date indicated above.
NORTHWEST CORPORATE CAMPUS LLC
RONALD S. SCIEPKO, Managing Member
CITY OF BREMERTON
LYNN HORTON, Mayor
DEP~.~OVAL
W. EUGENE SAMPLEY, P.E., Director of Public Works and Utilities
I~i'~-City Attorney
A'FrEST
KATHLEEN McCLUSKEY, City Clerk
Agreement, Construction of System Improvements
Page6 of 6
DATE SUBMITTED: April 23, 2004 BILL # 0 ~ '- 0 -7 7
AGENDA BILL
CITY OF BREMERTON ,aa~ ,~
CITY COUNCIL
SUBJECT: PSE Agreement for Committee Meeting Date: April 27, 2004
Underground Conversion on Washington COUNCIL MEETING Date: April 28, 2004
Avenue Department: PW&U, Engineering
Presenter: Lyrm Price
Phone: 473-5272
SUMMARY: An agreement is required between the City of Bremerton and Puget Sound Energy for
the undergrounding of Puget Sound Energy's power distribution system on Washington Avenue
between 2nd Street and 4th Street.
ATTACHMENTS: Schedule 74 Underground Conversion -Project Construction Agreement.
FISCAL IMPACTS (Include Budgeted Amount): The City's share of $135,800 is funded with
federal and state funds budgeted for the SR 304 - Downtown Stage 1E Project and with additional
fimding provided through an adjacent property vner agreement.
DEPARTMENT DIRECTOR: ~
CITY ATTORNEY: -"~/ ~ ~
FINANCE DIRECTOR: ~
MAYOR: _
FISCAL/BUDGET: CONSENT AGENDA []
OPERATIONS:
COUNCiL PRESIDENT:
RECOMMENDED MOTION: Move to authorize the Mayor to execute the Schedule 74
Underground Conversion Project Construction Agreement with Puget Sound Energy for
Washington Avenue between 2"a Street and 4th Street.
COUNCIL ACTION: [] Approve [] Deny [] Table [] Continue [] No Action
SCHEDULE 74 UNDERGROUND CONVERSION
Project Construction Agreement
Project Name: City of Bremerton -Washington Avenue between 2® and 4th Avenues
Project Number: #101019342
THIS Agreement, dated as of this day of ,200~, is made by and
between City of Bremerton, a Municipal Corporation (the "Government Entib/'), and PUGET SOUND
ENERGY, Inc., a Washington Corporation (the "Company").
RECITALS
A. The Company is a public service company engaged in the sale and distribution of electric
energy, and pursuant to its franchise or other rights from the Government Entity, currently locates its
electric distribution facilities within the jurisdictional boundaries of the Government Entity.
B. The Government Entity has determined that it is necessary to replace the existing overhead
electric distribution system within the area specified in the Project Plan (as defined below) (the
"Conversion Area") with a comparable underground electric distribution system, all as more specifically
described in the Project Plan (the "Conversion Project").
C. The Government Entity and the Company have previously entered into a Project Design
Agreement dated as of November 20, 2003 (the "Design Agreement"), pursuant to which the par[les
completed certain engineering design, cost assessment, operating rights planning and other preliminary
work relating to the Conversion Project and, in connection with that effod, developed the Project Plan.
D. The Government Entity and the Company wish to execute this written contract in accordance
with Schedule 74 of the Company's Electric Tariff G ("Schedule 74") to govern the completion of the
Conversion Project, which both parties intend shall qualify as an underground conversion under the terms
of Schedule 74.
AGREEMENT
The Government Entity and the Company therefore agree as follows:
1. Definitions.
(a) Unless specifically defined otherwise herein, all terms defined in Schedule 74 shall have the same
meanings when used in this Agreement, including, without limitation, the following:
i) Cost of Conversion;
ii) Public Thoroughfare;
iii) Temporary Service;
iv) Trenching and Restoration;
v) Underground Distribution System; and
vi) Underground Service Lines.
(b) "Company-Initiated Upgrade" shall mean any feature of the Underground Distribution System
which is required by the Company and is not reasonably required to make the Underground
Distribution System comparabre to the overhead distribution system being replaced. For
purposes of the foregoing, a "comparable" system shall include, unless the Parties otherwise
agree, the number of empty ducts (not to exceed two (2), typically having a diameter of 6" or less)
Construction Agreement, Attachment "B" to Schedule 74, Page 1
[City of Bremerton - Washington Avenue]
of such diameter and number as may be specified and agreed upon in the Project Plan necessary
to replicate the load-carrying capacity (system amperage class) of the overhead system being
replaced.
(c) "Estimated Reimbursable Private Conversion Costs" shall.mean the Company's good faith
estimate of the Reimbursable Private Conversion Costs, as specified in the Project Plan and as
changed and adjusted from time to time in accordance with Section 6, below.
(d) "Estimated Reimbursable Temporary Service Costs" shall mean the Company's good faith
estimate of the Reimbursable Temporary Service Costs, as specified in the Project Plan and as
changed and adjusted from time to time in accordance with Section 6, below.
(e) "Estimated Reimbursable Upgrade Costs" shall mean the Company's good faith estimate of the
Reimbursable Upgrade Costs, as specified in the Project Plan and as changed and adjusted from
time to time in accordance with Section 6, below.
(f) "Estimated Shared Company Costs" shall mean the Company's good faith estimate of the Shared
Company Costs, as specified in the Project Plan and as changed and adjusted from time to time
in accordance with Section 6, below.
(g) "Estimated Shared Government Costs" shall mean the Government Entity's good faith estimate of
the Shared Government Costs, as specified in the Project Plan and as changed and adjusted
from time to time in accordance with Section 6, below.
(h) "Government-Requested Upgrade" shall mean any feature of the Underground Distribution
System which is requested by the Government Entity and is not reasonably required to make the
Underground Distribution System comparable to the overhead distribution system being replaced.
For purposes of the foregoing, any empty ducts installed at the request of the Government Entity
shall be a Government-Requested Upgrade.
(i) "Party" shall mean either the Company, the Government Entity, or both.
(j) "Private Property Conversion" shall mean that portion, if any, of the Conversion Project for which
the existing overhead electric distribution system is located, as of the date determined in
accordance with Schedule 74, (i) outside of the Public Thoroughfare, or (ii) pursuant to rights not
derived from a franchise previously granted by the Government Entity or pursuant to rights not
otherwise previously granted by the Government Entity.
(k) "Project Plan" shall mean the project plan developed by the Parties under the Design Agreement
and attached hereto as Exhibit A, as the same may be changed and amended from time to time in
accordance with Section 6, below. The Project Plan includes, among other things, (i) a detailed
description of the Work that is required to be performed by each Party and any third party, (ii) the
applicable requirements and specifications for the Work, (iii) a description of the Operating Rights
that are required to be obtained by each Party for the Conversion Project (and the requirements
and specifications with respect thereto), (iv) an itemization and summary of the Estimated Shared
Company Costs, Estimated Shared Government Costs, Estimated Reimbursable Private
Conversion Costs (if any), Estimated Reimbursable Temporary Service Costs (if any) and
Estimated Reimbursable Upgrade Costs (if any), and (v) the Work Schedule.
(I) "Operating Rights" shall mean sufficient space and legal rights for the construction, operation,
repair, and maintenance of the Underground Distribution System.
(m) "Reimbursable Private Conversion Costs" shall mean (i) all Costs of Conversion, if any, incurred
by the Company which are attributable to a Private Property Conversion, less (ii) the distribution
pole replacement costs (if any) that would be avoided by the Company on account of such Private
Property Conversion, as determined consistent with the applicable Company distribution facilities
Construction Agreement, Attachment "B" to Schedule 74, Page 2
[City of Bremerton - Washington Avenue]
replacement program, plus (iii) just compensation as provided by law for the Company's interests
in real property on which such existing overhead distribution system was located prior to
conversion; provided that the portion of the Reimbursable Private Conversion Costs attributable to
the Costs of Conversion under subparagraph (i) of this paragraph shall not exceed the Estimated
Reimbursable Private Conversion Costs without the prior written authorization of the Government
Entity.
(n) "Reimbursable Temporary Service Costs" shall mean all costs incurred by the Company which
are attributable to (i) any facilities installed as part of the Conversion Project to provide Temporary
Service, as provided for in Schedule 74, and (ii) the removal of any facilities installed to provide
Temporary Service (less salvage value of removed equipment); provided that the Reimbursable
Temporary Service Costs shall not exceed the Estimated Reimbursable Temporary Service Costs
without the prior written authorization of the Government Entity.
(o) "Reimbursable Upgrade Costs" shall mean all Costs of Conversion incurred by the Company
which are attributable to any Govemment-Requested Upgrade; provided that the Reimbursable
Upgrade Costs shall not exceed the Estimated Reimbursable Upgrade Costs without the prior
written authorization of the Government Entity.
(p) "Shared Company Costs" shall mean all Costs of Conversion (other than Reimbursable Upgrade
Costs, Reimbursable Private Conversion Costs and Reimbursable Temporary Service Costs)
incurred by the Company in connection with the Conversion Project; provided, however, that the
Shared Company Costs shall not exceed the Estimated Shared Company Costs without the prior
written authorization of the Government Entity. For the avoidance of doubt, the "Shared Company
Costs" shall, as and to the extent specified in the Design Agreement, include the actual,
reasonable costs to the Company for the "Design Work" performed by the Company under the
Design Agreement.
(q) "Shared Government Costs" shall mean all Costs of Conversion incurred by the Government
Entity in connection with (i) any duct and vault installation Work which the Parties have specified
in the Project Plan is to be performed by the Government Entity as part of the Government Work,
and (ii) the acquisition of any Operating Rights which the Parties have, by mutual agreement,
specified in the Project Plan are to be obtained by the Government Entity for the Conversion
Project, but only to the extent attributable to that portion of such Operating Rights which is
necessary to accommodate the facilities of the Company; provided, however, that the Shared
Government Costs shall not exceed the Estimated Shared Government Costs without the prior
written authorization of the Company.
(r) "Total Shared Costs" shall mean the sum of the Shared Company Costs and the Shared
Government Costs. For the avoidance of doubt, the Total Shared Costs shall not include, without
limitation, (i) costs to the Government Entity for Trenching and Restoration, or (ii) costs associated
with any joint use of trenches by other utilities as permitted under Section 3(b).
(s) "Work" shall mean all work to be performed in connection with the Conversion Project, as more
specifically described in the Project Plan, including, without limitation, the Company Work (as
defined in Section 2(a), below) and the Government Work (as defined in Section 3(a), below).
(t) "Work Schedule" shall mean the schedule specified in the Project Plan which sets forth the
milestones for completing the Work, as the same may be changed and amended from time to
time in accordance with Section 6, below.
2. Qbliqations of the Company.
(a) Subject to the terms and conditions of this Agreement, the Company shall do the following as
specified in, and in accordance with the design and construction specifications and other
requirements set forth in, the Project Plan (the "Company Work"):
Construction Agreement, Attachment "B" to Schedule 74, Page 3
[City of Bremerton - Washington Avenue]
i) furnish and install an Underground Distribution System within the Conversion Area
(excluding any duct and vault installation or other Work which the Parties have
specified in the Project Plan is to be performed by the Government Entity);
ii) provide a Company inspector on-site at the times specified in the Work Schedule to
inspect the performance of any duct and vault installation Work which the Parties
have specified in the Project Plan is to be performed by the Government Entity; and
iii) upon connection of those persons or entities to be served by the Underground
Distribution System and removal of facilities of any other utilities that are connected to
the poles of the overhead system, remove the existing overhead system (including
associated wires and Company-owned poles) of 15,000 volts or less within the
Conversion Area except for Temporary Services.
(b) Upon request of the Government Entity, the Company shall provide periodic reports of the
progress of the Company Work identifying (i) the Company Work completed to date, (ii) the
Company Work yet to be completed, and (iii) an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Company Costs, the Estimated
Reimbursable Private Conversion Costs (if any), the Estimated Reimbursable Temporary Service
Costs (if any), the Estimated Reimbursable Upgrade Costs (if any) and the Work Schedule.
(c) Except as otherwise provided in the Company's Electric Tariff G, the Company shall own, operate
and maintain all electrical facilities installed pursuant to this Agreement including, but not limited
to, the Underground Distribution System and Underground Service Lines.
(d) Subject to the terms and conditions of this Agreement, the Company shall perform all Company
Work in accordance with the Project Plan, the Work Schedule and this Agreement.
3. Obliqations of the Government Entity.
(a) Subject to the terms and conditions of this Agreement, the Government Entity shall do the
following as specified in, and in accordance with the design and construction specifications and
other requirements set forth in, the Project Plan (the "Government Work"):
i) provide the Trenching and Restoration;
ii) perform the surveying for alignment and grades for ducts and vaults; and
iii)perform any duct and vault installation and other Work which the Padies have
specified in the Project Plan is to be performed by the Government Entity.
(b) Other utilities may be permitted by the Government Entity to use the trenches provided by the
Government Entity for the installation of their facilities so long as such facilities or the installation
thereof do not interfere (as determined pursuant to the Company's electrical standards) with the
Underground Distribution System or the installation or maintenance thereof. Any such use of the
trenches by other utilities shall be done subject to and in accordance with the joint trench design
specifications and installation drawings set forth or otherwise identified in the Project Plan, and the
Government Entity shall be responsible for the coordination of the design and installation of the
facilities of the other utilities to ensure compliance with such specifications and drawings.
(c) Upon request of the Company, the Government Entity shall provide periodic reports of the
progress of the Government Work identifying (i) the Government Work completed to date, (ii) the
Government Work yet to be completed, and (iii) an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Government Costs and the Work
Schedule.
(d) The Government Entity shall be responsible for coordinating all work to be performed in
connection with the street improvement program within the Conversion Area.
Construction Agreement, Attachment "B" to Schedule 74, Page 4
[City of Bremerton - Washington Avenue]
(e) Subject to the terms and conditions of this Agreement, the Government Entity shall perform all
Government Work in accordance with the Project Plan, the Work Schedule and this Agreement.
4. Work Schedule.
(a) The Government Entity and the Company have agreed upon the Work Schedule as set forth in
the Project Plan. Changes to the Work Schedule shall be made only in accordance with
Section 6, below.
(b) Promptly following the execution of this Agreement, and upon completion by the Government
Entity of any necessary preliminary work, the Government Entity shall hold a pre-construction
meeting involving all participants in the Conversion Project to review project design, coordination
requirements, work sequencing and related pre-mobilization requirements. Following the pre-
construction meeting, the Government Entity shall give the Company written notice to proceed
with the Work at least ten (10) business days prior to the commencement date specified in the
Work Schedule.
(c) Subject to the terms and conditions of this Agreement, each Party shall perform the Work
assigned to it under this Agreement in accordance with the Work Schedule. So long as the
Company performs the Company Work in accordance with the Work Schedule, the Company
shall not be liable to the Government Entity (or its agents, servants, employees, contractors,
subcontractors, or representatives) for any claims, actions, damages, or liability asserted or
arising out of delays in the Work Schedule.
5. Location of Facilities.
All facilities of the Company installed within the Conversion Area pursuant to this Agreement shall be
located, and all related Operating Rights shall be obtained, in the manner set forth in the applicable
provisions of Schedule 74, as specified by the Parties in the Project Plan.
6. Chanqes.
(a) Either Party may, at any time, by written notice thereof to the other Party, request changes in the
Work within the general scope of this Agreement (a "Request for Change"), including, but not
limited to: (i) changes in, substitutions for, additions to or deletions of any Work; (ii) changes in the
specifications, drawings and other requirements in the Project Plan, (iii) changes in the Work
Schedule, and (iv) changes in the location, alignment, dimensions or design of items included in
the Work. No Request for Change shall be effective and binding upon the Parties unless signed
by an authorized representative of each Party.
(b) If any change included in an approved Request for Change would cause a change in the cost of,
or the time required for, the performance of any part of the Work, an equitable adjustment shall be
made in the Estimated Shared Company Costs, the Estimated Shared Government Costs, the
Estimated Reimbursable Private Conversion Costs (if any), the Estimated Reimbursable
Temporary Service Costs (if any), the Estimated Reimbursable Upgrade Costs (if any) and/or the
Work Schedule to reflect such change. The Parties shall negotiate in good faith with the objective
of agreeing in writing on a mutually acceptable equitable adjustment. If the Parties are unable to
agree upon the terms of the equitable adjustment, either Party may submit the matter for
resolution pursuant to the dispute resolution provisions in Section 10, below.
(c) The Work Schedule, the Estimated Shared Company Costs, the Estimated Shared Government
Costs, the Estimated Reimbursable Private Conversion Costs, the Estimated Reimbursable
Temporary Service Costs and/or the Estimated Reimbursable Upgrade Costs shall be further
equitably adjusted from time to time to reflect any change in the costs or time required to perform
the Work to the extent such change is caused by: (i) any Force Majeure Event under Section 11,
below, (ii) the discovery of any condition within the Conversion Area which affects the scope, cost,
Construction Agreement, Attachment "B" to Schedule 74, Page 5
[City of Bremerton -Washington Avenue]
schedule or other aspect of the Work and was not known by or disclosed to the affected Party
prior to the date of this Agreement, or (iii) any change or inaccuracy in any assumptions regarding
the scope, cost, schedule or other aspect of the Work which are expressly identified by the Parties
in the Project Plan. Upon the request of either Party, the Parties will negotiate in good faith with
the objective of agreeing in writing on a mutually acceptable equitable adjustment. If, at any time
thereafter, the Parties are unable to agree upon the terms of the equitable adjustment, either
Party may submit the matter for resolution pursuant to the dispute resolution provisions in
Section 10, below.
(d) Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually acceptable
equitable adjustment, each Party shall, if requested by the other Party, proceed with the Work in
accordance with any approved Request for Change. Any request to proceed hereunder must be
accompanied by a written statement setting forth the requesting Party's reasons for rejecting the
proposed equitable adjustment of the other Party.
7. Compensation and Payment.
(a) Subject to and in accordance with the terms and conditions of this Agreement (including, without
limitation, the payment procedures set forth in this Section 7), payment in connection with the
Conversion Project and this Agreement shall be as follows:
i) The Total Shared Costs shall be allocated 1o the Parties in the following percentages:
(A) sixty percent (60%) to the Company, and (B) forty percent (40%) to the
Government Entity.
ii) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Private Conversion Costs, if any.
iii) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Upgrade Costs, if any.
iv) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Temporary Service Costs, if any.
v) The Government Entity shall pay one hundred percent (100%) of the costs it incurs to
perform that portion of the Government Work specified in Section 3(a)(i) and (ii) (i.e.,
Trenching and Restoration and surveying).
vi) The Company shall pay one hundred percent (100%) of the costs it incurs to design,
provide and construct any Company-Initiated Upgrade.
vii) The Company shall pay one hundred percent (100%) of the costs it incurs to obtain
Operating Rights outside the Public Thoroughfare.
(b) Based on the allocation of responsibilities set forth in Section 7(a), above, the Parties shall
determine the net amount payable by the Government Entity or the Company, as applicable, to
the other Party under this Agreement (the "Net Amount"). The Net Amount shall be determined
by using the amount of the Total Shared Costs allocated to the Government Entity under
Section 7(a)(i), and adjusting such amount as follows:
i) Subtracting (as a credit to the Government Entity) the amount of the Shared
Government Costs.
ii) Adding (as a credit to the Company) the amount of all Reimbursable Private
Conversion Costs, Reimbursable Upgrade Costs and Reimbursable Temporary
Service Costs.
iii) Subtracting (as a credit to the Government Entity) any payments previously made to
the Company by the Government Entity under the Design Agreement which, under
the terms of the Design Agreement, are to be credited to the Government Entity
under this Agreement.
The Net Amount, as so calculated, (A) will be an amount payable to the Company if it is a positive
number, and (B) shall be an amount payable to the Government Entity if it is a negative number.
Construction Agreement, Attachment "B" to Schedule 74, Page 6
[City of Bremerton - Washington Avenue]
(c) Within sixty (60) business days of completion of the Conversion Project, the Government Entity
shall provide the Company with an itemization of the Shared Government Costs (the "Government
Itemization"), together with such documentation and information as the Company may reasonably
request to verify the Government Itemization. The Government Itemization shall, at a minimum,
break down the Shared Government Costs by the following categories, as applicable: (i) property
and related costs incurred and/or paid by the Government Entity, including any costs of obtaining
Operating Rights, and (ii) construction costs incurred and/or paid by the Government Entity,
including and listing separately inspection, labor, materials and equipment, overhead and all costs
charged by any agent, contractor or subcontractor of the Government Entity.
(d) Within thirty (30) business days after the Company's receipt of the Government Itemization and
requested documentation and information, the Company shall provide the Government Entity a
written statement (the "Company Statement") showing (i) an itemization of the Shared Company
Costs, (ii) the Parties' relative share of the Total Shared Costs based on the Company's
itemization of the Shared Company Costs and the Government Entity's itemization of the Shared
Government Costs set forth in the Government Itemization, (iii) any Reimbursable Private
Conversion Costs, (iv) any Reimbursable Upgrade Costs, (v) any Reimbursable Temporary
Service Costs, (vi) any credits to the Government Entity for payments previously made to the
Company by the Government Entity under the Design Agreement which, under the terms of the
Design Agreement, are to be credited to the Government Entity under this Agreement, and
(vii) the Net Amount, as determined in accordance with Section 7(b), above, together with such
documentation and information as the Government Entity may reasonably request to verify the
Company Statement. The itemization of the Shared Company Costs included in the Company
Statement shall, at a minimum, break down the Shared Company Costs by the following
categories, as applicable: (i) design and engineering costs, and (ii) construction costs, including
and listing separately inspection, labor, materials and equipment, overhead and all costs charged
by any agent, contractor or subcontractor of the Company.
(e) Within thirty (30) business days after the Government Entity's receipt of the Company Statement
and requested documentation and information, the Net Amount shall be paid by the owing Party to
the other Party, as specified in the Company Statement.
8. Indemnification.
(a) The Government Entity releases and shall defend, indemnify and hold the Company harmless
from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited
to, reasonable attorneys' fees) caused by or arising out of any negligent act or omission or willful
misconduct of the Government Entity in its performance under this Agreement. During the
performance of such activities the Government Entity's employees or contractors shall at all times
remain employees or contractors, respectively, of the Government Entity.
(b) The Company releases and shall defend, indemnify and hold the Government Entity harmless
from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited
to, reasonable attorneys' fees) caused by or arising out of any negligent act or omission or willful
misconduct of the Company in its performance under this Agreement. During the performance of
such activities the Company's employees or contractors shall at all times remain employees or
contractors, respectively, of the Company.
(c) Solely for purposes of enforcing the indemnification obligations of a Party under this Section 8,
each Party expressly waives its immunity under Title 51 of the Revised Code of Washington, the
industrial Insurance Act, and agrees that the obligation to indemnify, defend and hold harmless
provided for in this Section 8 extends to any such claim brought against the indemnified Party by
or on behalf of any employee of the indemnifying Party. The foregoing waiver shall not in any way
preclude the indemnifying Party from raising such immunity as a defense against any claim
brought against the indemnifying Party by any of its employees.
Construction Agreement, Attachment "B" to Schedule 74, Page 7
[City of Bremerton - Washington Avenue]
9. Conversion of Service to Customers within Conversion Area.
(a) Upon commencement of the Work, the Government Entity shall notify all persons and entities
within the Conversion Area that service lines to such customers must be converted from overhead
to underground service within the applicable statutory period following written notice from the
Government Entity that service from underground facilities are available in accordance with RCW
35.96.050. Upon the request of any customer, other than a single family residential customer,
within the Conversion Area, the Company shall remove the overhead system and connect such
persons' and entities' Underground Service Lines to the Underground Distribution System.
(b) The Parties acknowledge that single family residences within the Conversion Area must (i)
provide a service trench and conduit, in accordance with the Company's specifications, from the
underground meter base to the point of service provided during the conversion, and (ii) pay for the
secondary service conductors as defined in Schedule 85 of the Company's Electric Tariff G. The
Government Entity shall exercise its authority to order disconnection and removal of overhead
facilities with respect to owners failing to convert service lines from overhead to underground
within the timelines provided in RCW 35.96.050.
10. Dispute Resolution.
(a) Any dispute, disagreement or claim arising out of or concerning this Agreement must first be
presented to and considered by the Parties. A Party who wishes dispute resolution shall notify the
other Party in writing as to the nature of the dispute. Each Party shall appoint a representative
who shall be responsible for representing the Party's interests. The representatives shall exercise
good faith efforts to resolve the dispute. Any dispute that is not resolved within ten (10) business
days of the date the disagreement was first raised by written notice shall be referred by the
Parties' representatives in writing to the senior management of the Parties for resolution. In the
event the senior management are unable to resolve the dispute within twenty (20) business days
(or such other period as the Parties may agree upon), each Party may pursue resolution of the
dispute through other legal means consistent with the terms of this Agreement. All negotiations
pursuant to these procedures for the resolution of disputes shall be confidential and shall be
treated as compromise and settlement negotiations for purposes of the state and federal rules of
evidence.
(b) Any claim or dispute arising hereunder which relates to any Request for Change or any equitable
adjustment under Section 6, above, or the compensation payable by or to either Party under
Section 7, above, and which is not resolved by senior management within the time permitted
under Section 10(a), above, shall be resolved by arbitration in Seattle, Washington, under the
Construction Industry Arbitration Rules of the American Arbitration Association then in effect. The
decision(s) of the arbitrator(s) shall be final, conclusive and binding upon the Parties. All other
disputes shall be resolved by litigation in any court or governmental agency, as applicable, having
jurisdiction over the Parties and the dispute.
(c) In connection with any arbitration under this Section 10, costs of the arbitrator(s), hearing rooms
and other common costs shall be divided equally among the Parties. Each Party shall bear the
cost and expense of preparing and presenting its own case (including, but not limited to, its own
attorneys' fees); provided, that, in any arbitration, the arbitrator(s) may require, as part of his or
her decision, reimbursement of all or a portion of the prevailing Party's costs and expenses
(including, but not limited to, reasonable attorneys' fees) by the other Party.
(d) Unless otherwise agreed bythe Parties in writing, the Parties shall continue to perform their
respective obligations under this Agreement during the pendency of any dispute.
Construction Agreement, Attachment "B" to Schedule 74, Page 8
[City of Bremerton -Washington Avenue]
I
11. Uncontrollable Forces.
In the event that either Party is prevented or delayed in the performance of any of its obligations under
this Agreement by reason beyond its reasonable control (a "Force Majeure Event"), then that Party's
performance shall be excused during the Force Majeure Event. Force Majeure Events shall include,
without limitation, war; civil disturbance; flood, earthquake or other Act of God; storm, earthquake or
other condition which necessitates the mobilization of the personnel of a Party or its contractors to
restore utility service to customers; laws, regulations, rules or orders of any governmental agency;
sabotage; strikes or similar labor disputes involving personnel of a Party, its contractors or a third
party; or any failure or delay in the performance by the other Party, or a third party who is not an
employee, agent or contractor of the Party claiming a Force Majeure Event, in connection with the
Work or this Agreement. Upon removal or termination of the Force Majeure Event, the Party claiming
a Force Majeure Event shall promptly perform the affected obligations in an orderly and expedited
manner under this Agreement or procure a substitute for such obligation. The Parties shall use all
commercially reasonable efforts to eliminate or minimize any delay caused by a Force Majeure Event.
12. Insurance.
(a) PSE shall, and shall require each of its contractors to, secure and maintain in force throughout the
duration of the Conversion Project (or, if sooner, until termination of this Agreement)
comprehensive general liability insurances, with a minimum coverage of $1,000,000 per
occurrence and $2,000,000 aggregate for personal injury; and $1,000,000 per occurrence/
aggregate for property damages, and professional liability insurance in the amount of $2,000,000.
(b) The Government Entity shall ensure that each of its contractors performing any Government Work
secures and maintains in force throughout the duration of the Conversion Project (or, if sooner,
until termination of this Agreement) insurance policies having the same coverage, amounts and
limits as specified Section 12(a), above.
(c) In lieu of the insurance requirements set forth in Section 12(a), above, the Company may self-
insure against such risks in such amounts as are consistent with good utility practice. Upon the
Government Entity's request, the Company shall provide the Government Entity with reasonable
written evidence that the Company is maintaining such self-insurance.
13. Other.
(a) Aqreement Subiect To Tariff. This Agreement is subject to the General Rules and Provisions set
forth in Tariff Schedule 80 of the Company's electrical Tariff G and to Schedule 74 of such Tariff
as approved by the Washington Utilities and Transportation Commission and in effect as of the
date of this Agreement.
(b) Termination. The Government Entity reserves the right to terminate the Conversion Project and
this Agreement upon written notice to the Company. In the event that the Government Entity
terminates the Conversion Project and this Agreement, the Government Entity shall reimburse the
Company for all costs reasonably incurred by the Company in connection with the Work
performed prior to the effective date of termination. In such event, the costs reimbursable to the
Company (i) shall not be reduced by any Shared Government Costs or other costs incurred by the
Government Entity, and (ii) shall be paid within thirty (30) days after the receipt of the Company's
invoice therefor. Sections 1,5, 7, 8, 9~ 10, 11 and 13 shall survive any termination of the
Conversion Project and/or this Agreement.
(c) Facilities Greater Than 15,000Volts. Nothing in this Agreement shall in any way affect the rights
or obligations of the Company under any previous agreements pertaining to the existing or future
facilities of greater than 15,000 Volts within the Conversion Area.
Construction Agreement, Attachment "B" to Schedule 74, Page 9
[City of Bremerton -Washington Avenue]
/
(d) Compliance With Law. The Parties shall, in performing the Work under this Agreement, comply
with all applicable federal, state, and local laws, ordinances, and regulations.
(e) No Discrimination. The Company, with regard to the Work performed by the Company under this
Agreement, shall comply with all applicable laws relating to discrimination on the basis race, color,
national origin, religion, creed, age, sex, or the presence of any physical or sensory handicap in
the selection and retention of employees or procurement of materials or supplies.
(f) Independent Contractor. The Company and the Government Entity agree that the Company is an
independent contractor with respect to the Work and this Agreement. The Company is acting to
preserve and protect its facilities and is not acting for the Government Entity in performing the
Work. Nothing in this Agreement shall be considered to create the relationship of employer and
employee between the Parties. Neither the Company nor any employee of the Company shall be
entitled to any benefits accorded employees of the Government Entity by virtue of the Work or this
Agreement. The Government Entity shall not be responsible for withholding or otherwise
deducting federal income tax or social security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to the Company, or any
employee of the Company.
(g) Nonwaiver of Riqhts or Remedies. No failure or delay of either Party to insist upon or enforce
strict performance by the other Pady of any provision of this Agreement or to exercise any other
right under this Agreement, and no course of dealing or performance with respect thereto, shall,
except to the extent provided in this Agreement, be construed as a waiver or, or choice of, or
relinquishment of any right under any provision of this Agreement or any right at law or equity not
otherwise provided for herein. The express waiver by either Party of any right or remedy under
this Agreement or at law or equity in a particular instance or circumstance shall not constitute a
waiver thereof in any other instance or circumstance.
(h) No Third Party Beneficiaries. There are no third-party beneficiaries of this Agreement. Nothing
contained in this Agreement is intended to confer any right or interest on anyone other than the
Parties, their respective successors, assigns and legal representatives.
(i) Governmental Authority. This Agreement is subject to the rules, regulations, orders and other
requirements, now or hereafter in effect, of all governmental regulatory authorities and courts
having jurisdiction over this Agreement, the Parties or either of them. All laws, ordinances, rules,
regulations, orders and other requirements, now or hereafter in effect, of governmental regulatory
authorities and courts that are required to be incorporated into agreements of this character are by
this reference incorporated in this Agreement.
(j) No Partnership. This Agreement shall not be interpreted or construed to create an association,
joint venture or partnership between the Parties or to impose any partnership obligations or liability
upon either Party. Further, neither Party shall have any right, power or authority to enter into any
agreement or undertaking for or on behalf of, to act as or be an agent or representative of, or to
otherwise bind the other Party.
(k) Severability. In the event that any provision of this Agreement or the application of any such
provision shall be held invalid as to either Party or any circumstance by any court having
jurisdiction, such provision shall remain in force and effect to the maximum extent provided by
law, and all other provisions of this Agreement and their application shall not be affected thereby
but shall remain in force and effect unless a court or arbitrator holds they are not severable from
the invalid provisions.
Construction Agreement, Attachment "B" to Schedule 74, Page 10
[City of Bremerfon - Washington Avenue]
(I) Notice. Any notice under this Agreement shall be in writing and shall be faxed (with a copy
followed by mail or hand delivery), delivered in person, or mailed, properly addressed and
stamped with the required postage, to the intended recipient as follows:
If to the Government Entity:
Iftothe Company: Puget Sound Energy
22884 Ryen Drive
Poulsbo, WA 98370
Attn: Linda Streissguth
Fax:360-779-4897
Any Party may change its address specified in this Section 13(I) by giving the other Party notice of
such change in accordance with this Section 13(I).
(m) Applicable Law. This Agreement shall in all respects be interpreted, construed and enforced in
accordance with the laws of the State of Washington (without reference to rules governing conflict
of laws), except to the extent such laws may be preempted by the laws of the United States of
America.
(n) Entire A r~ment. This Agreement constitutes the entire agreement of the Parties with respect to
the subject matter hereof and all other agreements and understandings of the Parties, whether
written or oral, with respect to the subject matter of this Agreement are hereby superseded in their
entireties; provided, however, that except as expressly set forth in this Agreement, nothing herein
is intended to or shall alter, amend or supersede the Design Agreement and the same shall
remain in full force and effect in accordance with its terms.
(o) Successors and Assiqns. This Agreement shall be binding upon and inure to the benefit of the
respective successors, assigns, purchasers, and transferees of the Parties, including but not
limited to, any entity to which the rights or obligations of a Party are assigned, delegated, or
transferred in any corporate reorganization, change of organization, or purchase or transfer of
assets by or to another corporation, partnership, association, or other business organization or
division thereof.
Government Entity: Company:
PUGET SOUND ENERGY, INC.
BY BY
iTS ITS
Date Signed Date Signed
Approved as to form:
Construction Agreement, Attachment "B" to Schedule 74, Page 11
[City of Bremerton - Washington Avenue] ,,
PUGET SOUND ENERGY
Exhibit A: Project Plan
City of Bremerton: Washington Ave Underground Conversion
Project Number 101019342
March 24,2004
This Project Plan describes work to be performed by Puget Sound Energy and/or its contractor
("PSE") and the City of Bremerton and/or its contractor ("City") for the conversion of
certain PSE electrical distribution system facilities as described heroin (the "Conversion Project").
In addition to this document, this Project Plan includes and consists of:
Relevant drawings and specifications for the Conversion Project work
Relevant PSE Standards for installation of PSE facilities
Project Cost Estimate document(s)
Revisions to this Proiect Plan must be mutually approved by the City and PSE.
Conversion Project Scope
Pursuant to PSE's Schedule 74, PSE will convert its existing overhead distribution system of
15,000 volts and less to an Underground Distribution System within the following area (the
"Conversion Area"): Along and within Washington Avenue between 2nd and 4t~ Avenue
including the intersections of all cross streets and alleys there along as may be necessary and
convenient. The Conversion Project includes modification or replacement of all existing service
lines within the Conversion Area to connect to the Underground Distribution System and
removal of PSE's existing overhead distr/bution facilities from the Conversion Area. Refer to
project drawings for PSE Work Order 101019342. The conversion is 1390 feet in length.
In conjunction with the Conversion Project, the existing street lighting system within the
Conversion Area will be removed and the City will provide and install a new street lighting
system from a connection point location at location HH-2. The City will install the service from
the meter point to the HH. The construction responsibilities are not finalized at this time and will
be an addendum to this agreement.
There are no Company Initiated Upgrades or Tempora~ Service elements included in this
Project Scope~ The City has requested the following upgrade: Total Underground Transformer
located at V-10 of above reference drawing, located on the north side of Burwell Street
approximately 100 feet west of Washington Avenue.
Operating Rights
The existing overhead distribution facilities are located within the Public Thoroughfare unless
otherwise indicated in this Project Plan. The Underground Distribution System will be located
within Public Thoroughfare, except for facilities at location V08 (Stn: 4+96) and V09 (Stn:
6+20). Sufficient Space is not available within existing Public Thoroughfare at these locations.
Unless otherwise mutually agreed, operating rights to provide Sufficient Space will need to be
acquired pursuant to Schedule 74 Section 3 prior to the start of Conversion Project construction.
City of Bremerton Page I
Washington Ave. Underground Conversion
101019342
Ci,ty Responsibilities
Notice to Customers: The City w/Il provide appropriate written notice to customers within the
Conversion Area prior to the start of Conversion Pr~ect construction work, including City and
PSE contact information, Conversion Project Schedule, anticipation of service interruptions and
work required to be performed by customers.
Trenching, Restoration & Job Coordination: The City will perform all excavation and
trcnching, shoring (if rcquircd), bcdding, backfill, site restoration and job coordination rcquircd
for the installation of the Underground Distribution System. At locations where existing
undcrground clcctrical facilitics am to bc cut ovcr to thc undcrground system, thc City or it's
Contractor will provide scheduled excavation with two (2) business days notice.
Surveying: The City will perform all surveying for alignment and grades of vaults and ducts for
the installation of the Underground Distribution System.
Installation of Ducts & Vaults: The City will perform the installation of ducts and vaults for
thc Undcrground Distribution System using matcrials providcd by PSE subject to inspection and
acceptance of this work by PSE. PSE will accept the completed ducts and vaults system upon
thc City's showing to PSE's rcasonablc satisfaction that thc system is installed to propcr gradc
and at the prope~ location, is free of damage and clear of debris, and contains appropriate pulling
lines.
Staging and Storage: The City will provide secure staging and storage area(s) for ducts and
vaults materials provided by PSE and will bc responsible for thc sccurity and condition ofthcsc
materials until they are installed and accepted by PSE or returned to PSE.
Traffic Control: The City will provide flagging and traffic control as required for all work
performed by the City.
Notice to Convert or Modify Service Lines: Unless otherwise specified in this Project Plan, at
thc complction of thc Conversion Projcct all customers within thc Conversion Ama must bc
served by underground services lines. The City will provide ,mitten notice to customers within
thc Conversion Area that they must replace existing overhead service lines with undcrground
service lines or modify/reroute existing underground service lines as required to connect to the
Undcrground Distribution Systcm. Scrvicc lincs to bc rcplaccd or modificd arc listed in this
Project Plan.
Coordination of Other Utilities: The City will coordinate the removal and relocation of other
utilities attached to PSE's poles within the Conversion Area and will coordinate any joint use by
other utilities of any excavations and/or trenches used for the Conversion Project.
PSE Responsibilities
Ducts & Vaults Materials: PSE will provide and deliver on site all materials for installation of
ducts and vaults by thc City. Dclivcry shall bc in accordancc with lcttcr agrccmcnt signed by thc
City on April ,~ , 2004.
Inspection and Acceptance of Ducts & Vaults: PSE will provide inspection services to
oversee proper installation of ducts and vaults by the City. PSE will accept the completed ducts
City of Bremerton Page 2
Washin~on Ave Under~ound Conversion
101019342
and vaults system upon the City's showing to PSE's reasonable satisfaction that the system is
installed to proper gradc and at thc proper location, is frcc of damagc and clear of debris, and
contains appropriate pulling lines. Proofing of all conduit runs with a mandrel is also required.
Mandrel will bc supplied by thc PSE inspector.
Installation of Electrical Facilities: Following acceptance of the ducts and vaults system
installed by thc City, PSE will install all electrical facilitics for thc Underground Distribution
System.
Removal of Electrical Facilities: PSE will remove the existing overhead facilities (including
overhead services lines) within the Conversion Area after the Underground Distribution System
is placed in service, all customer service lines are connected thereto and all other utilities have
been removed from PSE's poles. PSE will fill holes left after pole remove with crushed rock.
Traffic Control: PSE w/Il provide flagging and traffic control as required for all work
performed by PSE.
Underground Service Lines: Unless otherwise specified in this Project Plan, at the completion
of thc Convcrsion Projcct all customers within thc Convcrsion Area must bc scrvcd by
underground services lines. PSE will install underground service lines for single-family
msidcntial customers (in trcnchcs and conduits provided by thc customer) and will comncct all
underground service lines to the Underground Distribution System, all in accordance with PSE
Schcdulc 85. PSE will providc information and assistance to customers and thc City to facititatc
work to be performed by customers associated with underground service lines. PSE will
disconnect and rcconncct scrvicc to customcrs during regular business hours and will schcdulc
service line work with customers at least two business days in advance. Service lines to be
rcplaccd or modified arc listed in this Project Plan.
Service Interruptions: Temporary interruptions of electrical service to customers will be
required during construction of thc Conversion Project and transfer of customers to thc
Underground Distribution System. PSE will use reasonable efforts to provide at least two
working days advance notice of scrvicc intcrruptions to customers.
Customers Responsibilities
Underground Service Lines: Unless otherwise specified in this Project Plan, at the completion
of the Conversion Project all customers within the Conversion Area must be served by
underground services lines. Customers must make their premises ready for service by
underground service lines and must make application to PSE for replacement, modification and
connection of service lines. Non-residential customers must provide suitable customer installed,
owned and maintained underground service lines in accordance ~vith PSE Schedule 85.
Residential customers (single family residences) must provide the trench, backfill and suitable
conduit under obstructions (if any) to PSE's specifications, and PSE will install, owm and
maintain the service lines therein in accordance with PSE Schedule 85. Customers served by
underground service lines connected to PSE's overhead distribution system must perform thc
above work as necessary to reroute existing underground serv/ce lines to connect to the
Underground Distribution System. Scrv'icc lines to bc rcplaccd or modified arc listed in this
Project Plan.
City of Bremerton Page 3
Washin~on Ave Underground Conversion
101019342
Construction Work Schedule
The Conversion Project Work will be performed in accordance with the following Work
Schedule, unless this Schedule is revised by mutual consent and a~eement of the City. and PSE
or circumstances beyond the control of PSE and the City preclude such performance.
installation of ducts and vaults: Start date April 5th and working continuously until
completed and accepted by PSE.
Installation of the new underground system will begin after successful acceptance of the duct and
vault installation.
Removal of the overhead system will begin after the City has notified PSE that all utilities have
removed their facilities from thc poles.
Pro,]ect Cost Estimate & Allocation
The estimated costs to perform the Conversion Project are presented in the attached Project Costs
Estimate Summary. (Attachment A) and consist of PSE's good faith estimate of costs to design
and construct the Conversion Project together with the City's good faith estimate of its costs to
perform certain work as described in the Project Plan (if any). Estimated project costs are based
on the installation of Facilities and performance of the Conversion Project as described in this
Project Plan and may be subject to change in the event that performance of the Conversion
Project differs from that described in this Project Plan.
Actual project costs will be allocated pursuant to the Conversion Project Design Agreement and
Construction Agreement and PSE's rote Schedule 74. As of the date of this Project Plan and
unless otherwise altered by one or more mutually agreed Requests for Change, certain project
costs will be allocated as follows:
City costs incurred to aCquire Public Thoroughfare for the installation of the Conversion
Projcct Facilitics (if any) will bc Sharcd Govcmmcnt Costs.
The City has elected to install the ducts and vaults for this Conversion Project. The costs
incurrcd by thc City to pcrform this work togcthcr with PSE's costs to pcrform inspcction of
the City's work will be Shared Government Costs and Shared Company Costs respectively to
thc cxtcnt thc total of such costs ("total amount") docs not cxcccd thc cstimatc of costs to thc
Conversion Project for installation of ducts and vaults if performed by PSE ("estimated
amount"). Any pottion of thc total amount in cxccss of thc cstimatcd amount will bc
allocated 100% to the City. The City has requested certain upgrades to the design of the
Undcrgrouad Distribution Systcm. Costs associatcd with thcsc upgradcs which cxcccd thc
estimated cost of the standard installation will be allocated 100% to the City.
Assumptions
The Project Design Work (construction plans and specifications), Construction Schedule and
Construction Costs Estimate are based on and reflect the following assumptions. Construction
conditions that are not consistent with these assumptions may result in a request for change to the
City of Bremerton Page 4
Washin~on Ave. Underground Conversion
101019342
Construction Schedule and~or Construction Costs Estimate pursuant to Section 6 of the
Construction Agrccmcnt.
Schedule
1 PSE wih be provided continuous access to the construction site and associated electrical
work from 7:00 AM to 5:30 PM Monday through Friday (regular business hours).
2 The normal PSE construction crew work schedule consists of five eight-hour workdays per
week within the working period referenced in assumption 1 above.
3 Once PSE's construction crews are mobilized, the conversion will be constructed in one
continuous nonstop cffort for cach phasc.
4 Cut-over and transfers of existing customers will be performed dtmng regular business hours.
Ovcrtimc chargcs may bc asscsscd for work pcfformcd outsidc of thc rcgular busincss hours
referenced in assumption 1.
5 PSE's contractor and the City's contractor will mutually agree upon a schedule for excavation
for and delivery of all vaults. Scheduling for delivery of vaults from the manufacture will
require a minimum of two days notice.
6 Customer work to install or modi~ service lines and work necessary by other utilities will be
performed and completed so as not to interfere with or delay the performance of PSE's work.
7 A City ofBremerton perufit does not include a pem~it fee and is the ol~ly permit required.
PSE Design Plans
7 The Conversion Project will be performed as shown in PSE's project drawings and PSE's
design and construction standards which accompany this Project Plan.
8 Vaults, handholes and pad-mounted equipment have been located consistent with PSE
Design Standard 6775.0035.
9 Locations for facilities as shown on PSE's project drawings are available for use.
10 Vault excavation will provide for appropriate grade, elevations and locations. The bottom of
vault excavations will be leveled with a minimum of six (6) inches of 5/8 inch crushed rock.
1 l Maximum trench depth for PSE conduits and conductors is 48 inches unless otherwise shown
on PSE's project drawings or otherwise approved by PSE's project inspector.
12 Minimum depth of cover above the top of PSE's conduits and conductors is 36 inches unless
otherwise shown on PSE's project drawings or otherwise approved by PSE's project
inspector.
13 This Project Plan does not include installation and removal of"temporary" facilities at the
request of others during construction.
Cost Estimate
14 The estimated costs presented in the Construction Costs Estimate Summary are based on the
installation of facilities at locations shown in PSE's project drawings and otherwise in
accordance with this Project Plan.
15 The estimated costs presented in the Construction Costs Estimate Summary are based on the
performance of work by PSE in accordance with the Construction Work Schedule included
City of Bremerton Page 5
WashingXon Ave. Underground Conversion
101019342
in this Project Plan during the working period addressed in assumptions 1 and 2 above. No
ovcrtimc work is includcd in this Projcct Plan.
16 The estimated costs presented in the Construct/on Costs Estimate Summary provide for
performancc of duct & vault installation thc City mad PSE inspcction of this work.
17 The Daily Productivity Rate is based on the City's contractor opening a minimum of 50 feet
oftrcnching pcr day. Thc daily production ratc is uscd to calculatc thc numbcr of days a
PSE/Potelco ingpector will be required.
PSE Facilities Design Standards
This Conversion Project has been designed by PSE and will be constructed by PSE and the City
in accordance with PSE design and construction standards in effect as of the date of this Project
Plan. Standards applicable to work to be performed by the City have been provided to the City is
PSE's Electric Distribution Trench/Duct/Vault Construction Standards, 2003, attached to this
Project Plan by reference.
Services Lines
The following services must be replaced or modified to provide underground service from the
Underground Distribution System.
1.221 Washington Ave.
Dodgcrs Eatcry
Restaurant
Neal J. Peterson LLC
Convert to underground 4 wire 3 phase service and route to H/-I- 1
2. 223 Washington Ave.
3 unit apartmcnt building
Karen Fisher, Rainier Properties
Convcrt to undcrground 3 wirc 1 phasc scrvicc and routc to HH-1
3. 206 Burwell
Pizza and Bagcl Shop
Pizzeria
Jocl Diamond, Owncr
Convert to underground 3 wire, 1 phase service and route to HH-2
City of Bremerton Page 6
Washin~on Ave. Under~ound Conversion
101019342
4. 309 Washington Ave.
6 units of apartments over Pizzeria
Karen Fisher
Rainier Properties
Convert to underground 3 wire, 1 phase service and route to HH-2
5. 232 Washington ~Ave.
The Sinclair Building
Office building
Kitsap Co. Consolidated Housing Authority
Convert to underground 4 wire, 3 phase service and route to V-08
Cutovers: Existing underground service reconnected to new underground distribution system
I. 400 Washington Ave.
Professional Building
Reroute existing underground service to V-13
Acceptance of Proiect Plan
The City and PSE mutually agree to and accept this Project Plan as of the date indicated:
For the City: For PSE:
By: By:
Date: Date:
City of Bremerton Page 7
Washington Ave. Underground Conversion
101019342
DATE SUBMITTED: March 26, 2004 BILL #
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
............ .......................................................
SUBJECT: Public Hearing on Ordinance hlS~ Committee Meeting Date: April 13, 2004
amending Ch. 2.13 BMC relating to filings COUNCIL MEETING Date: April 21 and 28, 2004
and appeal fees regarding proceedings before Department: City Attorney's Office
the Administrative Hearing Examiner Presenter: Roger A. Lubovich
Phone: 2345
SUMMARY: The current provisions of Ch. 2.13 BMC need to be clarified regarding the location for
filing applications and appeals to the Administrative Hearing Examiner and to further provide for a
refund of appeal filing fees when the appellant is the substantially prevailing party. The filing fee for
an appeal is $175. The proposed ordinance makes these changes to Chapter 2.13.
ATTACHMENTS: Proposed ordinance
FISCAL IMPACTS (Include Budgeted Amount): Administrative Heating Examiner appeal fees in
the amount of $175 would be returned in each case where the appellant is the substantially prevailing
party of an appeal.
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY: '
FINANCE DIRECTOR:
MAYOR: ~ ~"/~'-~ ~--.-- ---_._.__._~
'~'%?~'cd/~""2'~' '~c__..~--- CONSENT AGENDA []
FISCAL/BUDGET:
OPERATIONS: "
P=SIDENT:
RECOMMENDED MOTION:
2. I move to pass Ordinance No. ~ ~ ~¢ on second reading.
COUNCIL ACTION: [] Approve [] Deny [] Table [] Continue [] No Action
ORDINANCE NO. ~ ~ q ~
AN ORDINANCE of the City Council of the City of
Bremerton, Washington, amending Section 2.13.090 of the
Bremerton Municipal Code relating to filing applications and
appeals to the Administrative Hearing Examiner and further
amending Section 2.13.110 of the Bremerton Municipal Code
relating to the refund of Administrative Heating Examiner appeal
filing fees when the appellant is the substantially prevailing party.
WHEREAS, the City Council desires to amend Section 2.13.090 of the Bremerton
Municipal Code relating to filing applications and appeals to the Administrative Hearing
Examiner to clarify the location of filing said applications;
WHEREAS, the current provisions of Section 2.13.110 of the Bremerton
Municipal Code relating to decisions and recommendations of the Administrative Hearing
Examiner do not address refund of the appeal filing fees in the event the appellant is the
substantially prevailing party; and
WHEREAS, the City Council desires to update the provisions of Section 2.13.100
in order to provide for a refund of appeal filing fees when the appellant is the substantially
prevailing party; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1.. Section 2.13.090 of the Bremerton Municipal Code entitled "Filing
of Applications and Appeals" relating to proceedings before the Administrative Hearing
Examiner is hereby amended to read as follows:
2.13.090 FILING OF APPLICATIONS AND APPEALS.
............................ , ..................................................... lcat to
the Administrative Hearing Examiner for a decision, recommendation or an appeal shall be filed
with the Department of Community Development
.................... ., ....... Apphcat~ons ............. , ......................... ~ .... ~ shall be
filed with the applicable filing fee as set forth in Chapter 3.01 BMC. When it is found an
application or appeal meets the filing requirements of the effected City Codes, role or regulation,
the application shall be accepted. The Administrative Heating Examiner shall be responsible for
assigning a date for the public hearing for each application or appeal. Hearings on project permit
1
] ~ Administrative Hearing Examiner
applications are subject to the notice and heating requirements set forth in the Bremerton
Municipal Code.
SECTION2. Section 2.13.110 of the Bremerton Municipal Code entitled
"Decisions and Recommendation" relating to proceedings before the Administrative Hearing
Examiner is hereby amended to read as follows:
2.13.110 DECISIONS AND RECOMMENDATION.
(1) The Administrative Hearing Examiner's recommendation or decision may be to
grant or deny the application, or the Administrative Hearing Examiner may recommend or
require of the applicant such conditions, modifications and restrictions as the Administrative
Hearing Examiner finds necessary to make the application compatible with its environment, with
applicable state laws, and to carry our the objectives and goals of the comprehensive plan, the
zoning code, the subdivision code, and other codes and ordinances of the city. Conditions,
modifications and restrictions which may be imposed are, but are not limited to, additional
setbacks, screenings in the form of landscaping and fencing, covenants, easements and
dedications of additional road rights-of-way. Performance bonds or other financial assurances
may be required to insure compliance with conditions, modifications and restriction.
(2) In regard to all Type IV applications set forth in Chapter 21.02.855 BMC,
Administrative Hearing Examiner's findings and conclusions and recommendation shall be
submitted to the city council, which shall have the final authority to act on such applications.
The heating by the Administrative Hearing Examiner shall constitute an open record pre-
decision hearing before the final decision is made by the city council. The Administrative
Hearing Examiner shall file its recommendation with the city council at the expiration of the
period provided for reconsideration, or if reconsideration is accepted, within ten (10) working
days after the decision on reconsideration.
(3) When the Administrative Hearing Examiner renders a decision or
recommendation, the Administrative Hearing Examiner shall make and enter written findings
from the record and conclusions therefrom which support such decision. The decision shall be
rendered within ten (10) working days following conclusion of all testimony and hearings, unless
a longer period is mutually agreed to on the record by the applicant and the Administrative
Hearing Examiner. The copy of such decision, including findings and conclusions, shall be
transmitted by first class mail, to the applicant and other parties of record in the case requesting
the same.
(4) In the case of Shoreline Substantial Development permits, pursuant to BMC
21.02.860(d)(4), appeals shall be decided within thirty (30) calendar days of filing of the appeal.
(5) The filing fee as set forth in Chapter 3.01 BMC paid by the appellant for any
appeal to the Administrative Heating Examiner shall be refunded to the appellant if the appellant
is the substantially prevailing party.
SECTION3. Severabilitv. If any one or more sections, subsections, or
sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not
affect the validity of the remaining portion of this ordinance and the same shall remain in full
force and effect.
Administrative Hearing Examiner
SECTION4. Effective Date. This ordinance shall take effect and be in force ten
(10) days from and after its passage, approval and publication as provided by law.
APPROVED by the City Council the day of ,2004
PASSED by the City Council the day of ,2004
DAREN NYGREN, Council President
Approved this day of ,2004
CARY BOZEMAN, Mayor
ATTEST: APPROVED AS TO FORM:
PAULA JOHNSTON, Interim City Clerk ROGER A. LUBOVICH, City Attorney
PUBLISHED the day of ,2004
EFFECTIVE the day of _, 2004
ORDINANCE NO.
R:\LEGAL\OrdinancesU-Iearing Examiner~Appeal Fees.doc
Administrative Hearing Examiner
DATE SUBMITTED: March 26, 2004 BILL # ~" ] - O
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL 7~
SUBJECT: Public Hearing on Ordinance ~'~$ Committee Meeting Date: April ,1~, 2004
amending Ch. 3.86 and Ch. 3.50 BMC COUNCIL MEETING Date: April 21 and 28, 2004
relating to utility taxes Department: City Attorney's Office
Presenter: Roger A. Lubovich
Phone: 2345
SUMMARY: The current provisions of Ch. 3.86 BMC relating to apportionment of taxes of multiple
taxing jurisdictions are vague. Additionally, the current definition of "gross income" in Ch. 3.50
BMC is not consistent with the Washington Administrative Code definition and that chapter needs
further clarification as to when the tax imposed is due. The proposed ordinance clarifies the
provisions of Ch. 3.86 relating to apportionment of taxes and further updates Ch. 3.50 to update the
definition of "gross income" and clarify when the tax is due.
ATTACHMENTS: Proposed Ordinance
FISCAL IMPACTS (Include Budgeted Amount):
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
F~ANCE DIRECTOR:
FISCA~BUDGET: ~/13/0~ ~ ~/20/0~
CONSENT AGENDA
OPERATIONS: b/13/0~ ~ ~/20/0~
COUNC~ PRESIDENT: ~~~__ __ _
RECOMMENDED MOTION:
....... tv app~uvc thc ........ ' ' - firs
2. I move to pass Ordinance No. ~ ~ on second reading.
Iq
COUNCIL ACTION: [] Approve [] Deny [] Table [] Continue [] No Action
ORDINANCE NO. t4~'
AN ORDINANCE of the City Council of the City of
Brcmerton, Washington, amending Chapter 3.86 of the Bremerton
Municipal Code entitled "Administrative Provisions for Taxes" to
clarify provisions relating to apportionment of taxes and Chapter
3.50 of the Bremerton Municipal Code entitled "Utility Taxes" to
amend the definition of gross income relating to utility taxes and to
add a provision to clarify when the tax is due.
WHEREAS, the current provisions of Chapter 3.86 of the Bremerton Municipal
Code relating to apportionment of taxes of multiple taxing jurisdictions are vague as to how
taxes are to be apportioned; and
WHEREAS, the current definition of"gross income" contained in Chapter 3.50 of
the Bremerton Municipal Code relating to utility taxes is not consistent with the definition of
"gross income" as set forth in the Washington Administrative Code for utility taxes; and
WHEREAS, the current provisions of Chapter 3.50 of the Bremerton Municipal
Code needs to be clarified as to when the tax imposed in that chapter is due; and
WHEREAS, the City Council desires to update the provisions of Chapter 3.86
relating to apportionment of taxes and to further update the provisions of Chapter 3.50 relating to
the definition of"gross income" and when the tax imposed pursuant to Chapter 3.50 is due
relating to utility taxes; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION L Section 3.86.170 of the Bremerton Municipal Code entitled
"Ancillary Allocation Authority of Director" relating to administrative provisions for taxes is
hereby amended to read as follows:
3.86.170 ANCILLARY ALLOCATION AUTHORITY OF DIRECTOR.
The Director is authorized to enter into agreements with other Washington cities which
impose an "eligible gross receipts tax":
(1) To conduct an audit or joint audit ora taxpayer by using an auditor
employed by the City of Bremerton, another city, or a contract auditor, provided, that such
contract auditor's pay is not in any way based upon the amount of tax assessed;
(2) To allocate or apportion the gross proceeds of sales, gross receipts, or
gross income of the business, or taxes due from any person that is required to pay an eligible
gross receipts tax to more than one Washington city in a manner that fairly reflects gross receipts
earned from activities conducted within the respective cities.
Utility Taxes
(3) To apply the City's tax prospectively where a taxpayer has no office or
place of business within the City and has paid tax on all gross income to another Washington city
where the taxpayer is located; provided that the other city maintains an eligible gross receipts
tax, and the income was not derived from contracts with the City.
SECTION2. Chapter 3.50 of the Bremerton Municipal Code entitled "Utility
Taxes" is hereby amended to read as follows:
Chapter 3.50
UTILITY TAXES
3.50.010 EXERCISE OF REVENUE LICENSE POWER.
The provisions of this chapter shall be deemed an exercise of the power of the City to
license and/or tax for revenue. The provisions of this chapter are subject to periodic statutory or
administrative rule changes or judicial interpretations of the ordinances or rules. The
responsibility rests with the licensee or taxpayer to reconfirm tax computation procedures and
remain in compliance with the City code.
3.50.020 BUSINESS LICENSE - REQUIRED.
It is unlawful for any person to engage in business in the City without having first
obtained a business license pursuant to Chapter 5.02 BMC.
3.50.030 ADMINISTRATIVE PROVISIONS.
The provisions contained in chapter 3.86 BMC shall be fully applicable to the provisions
of this chapter except as expressly stated to the contrary herein.
3.50.040 DEFINITIONS.
For the purposes o£this chapter, the definitions contained in chapter 3.48 BMC shall
apply equally to the provisions of this chapter as applicable unless the term is defined otherwise
in this chapter. In addition, the following definitions will apply:
"Cellular telephone service" is a voice or data telephone/telecommunications system
based in whole or substantial part on wireless radio communications, whether or not the
communications are subject to regulation by the Washington Utilities and Transportation
Commission (WUTC). This includes cellular mobile service. Cellular mobile service includes
other wireless radio communications services such as specialized mobile radio (SMR), personal
communications services (PCS), and any other evolving wireless radio communications
technology which accomplishes the same purpose as cellular mobile service.
"Competitive telephone service" means the providing by any person of telephone
telecommunications equipment or apparatus, or service related to that equipment or apparatus
such as a repair and maintenance service, if the equipment or apparatus is of a type which can be
provided by persons who are not subject to regulation as telephone companies under Title 80
RCW, and for which a separate charge is made.
"Gross income" means thc "~ ......... ~; ......... ;.~ c~^~ +ua ~n~ ~c+~:u~
2
~ t Utility Taxes
means the value proceeding or accruing by reason of the business activity engaged in and
operations incidental thereto, and includes gross proceeds of sales, compensation for the
rendition of services and other emoluments, but without any deduction on account of the cost of
the commodity furnished or sold, the cost of materials used, labor costs, interest, discount,
delivery costs, taxes, or any other expense whatsoever paid or accrued and without any deduction
on account of losses.
"Gross income from timber sales" means "stumpage value of timber" as defined in
Chapter 84.33 RCW minus the costs of production including, but not limited to logging and
tracking costs, fees and excise taxes.
"Page service" means service provided by means of an electronic device that has the
ability to send or receive voice or digital messages transmitted through the local telephone
network, via satellite or any other form of voice or data transmission.
"Reporting period" means a one-month period beginning the first day of each calendar
month (monthly).
"Solid waste collection service" means receiving solid waste from any facility or location
within the City for transfer, processing, treatment, storage, or disposal, including, but not limited
to, all collection services, public or private dumps or landfills, transfer stations, and other similar
operations.
"Solid waste," for purposes of this subsection, means garbage, trash, rubbish, or other
material discarded as worthless or not economically viable for further use, infectious, hazardous,
or toxic wastes, and recyclable or reusable materials collected, in whole or part, for recycling or
salvage.
"Telephone business" means the providing by any person of access to a local telephone
network, local telephone network switching service, toll service, cellular or mobile telephone
service, coin telephone services, page service, or the providing of telephonic, video, data, or
similar communication, or transmission for hire, via a local telephone network, toll line or
channel, cable, microwave, or similar communication or transmission system. The term includes
cooperative or farmer line telephone companies or associations operating exchanges. The term
also includes the provision of transmission to and from the site of an intemet provider via a local
telephone network, toll line or channel, cable, microwave, or similar communication or
transmission system. "Telephone business" does not include the providing of competitive
telephone service, or providing of cable television service, or other providing of broadcast
services by radio or television stations.
3.50.050 PERSONS SUBJECT TO TAX - AMOUNT.
In addition to other taxes or fees that may be imposed or levied by the City, there is
hereby levied upon all persons (including the City) engaging in business within the City, a fee or
tax to be collected as follows:
3
~t,. UtiliO~ Tares
(a) Gas. Upon every person engaging in the business of transmitting, distributing or
the selling of manufactured or natural gas, a fee or tax equal to six (6) pement of the total gross
income from such business conducted within the City.
(b) Water. Upon every person engaging in the business of providing water utility
service, a fee or tax equal to seven (7) percent of the total gross income from such business
conducted within the City. The total gross income from the business of providing water utility
service includes the "gross income from timber sales" of the utility as that term is defined in this
chapter.
(c) Wastewater. Upon every person engaging in the business of providing wastewater
utility service, a fee or tax equal to seven (7) percent of the total gross income from such
business conducted within the City.
(d) Stormwater. Upon every person engaging in the business of providing stormwater
utility service, a fee or tax equal to seven (7) percent of the total gross income from such
business conducted within the City.
(e) Cable. Upon every person engaging in the business of transmitting television
signals by means of a cable distribution system commonly known as television cable service, a
fee or tax equal to seven (7) percent of the total gross income from such business conducted
within the City.
(f) Solid waste. Upon every person engaging in the business of providing solid waste
collection service, a fee or tax equal eleven (11) percent of the total gross income from such
business conducted within the City.
(g) Electricity. Upon every person engaging in the business of producing,
transmitting, distributing or selling electricity, a fee or tax equal to six (6) pement of the total
gross income fi.om such business conducted within the City.
(h) Telephone. Upon every person engaged in carrying on a telephone business for
hire or for sale of a commodity or a service within or partly within the corporate limits of the
City, a tax for the privilege of so doing business a tax equal to six percent (6%) of the total gross
income rendered within the City.
(1) "Deductions" In computing the telephone tax, there shall be deducted from
the gross operating revenues the following items:
(i) Amounts derived from transactions in interstate or foreign
commerce or from any business which the City is prohibited from taxing under the Constitutions
of the United States or the State of Washington.
(ii) Amounts derived from that portion of network telephone service,
as defined in RCW 82.04.065, which represents charges to another telecommunications
company, as defined in RCW 80.04.010, for connecting fees, switching charges or carrier access
charges relating to intrastate toll telephone services, or for access to, or charges for, interstate
services or charges for network telephone service that is purchased for the purpose of resale.
(iii) Adjustments made to a billing or to a customer account or to a
telecommunications company accrual account in order to reverse a billing or charge that had
been made as a result of third-party fraud or other crime and was not properly a debt of a
customer.
(iv) A complete deduction from gross income shall be allowed for
credit losses, only to cellular telephone service companies which keep their regular books of
Utility Taxes
account on an accrual basis, for cash discounts and credit losses actually sustained by a taxpayer
as a result of telephone service business.
(2) Allocation of Income - Cellular Telephone Service.
(i) Service address: Payments by a customer for the telephone service
from telephones without a fixed location shall be allocated among taxing jurisdictions to the
location of the customer's principal service address during the per/od for which the tax applies.
(ii) Roaming phones: When the service is provided while a subscriber
is roaming outside the subscriber's normal cellular network area, the gross income shall be
assigned consistent with the taxpayer's accounting system to the location of the originating cell
site of the call, or to the location of the main cellular switching office that switched the call.
3.50.060 DEDUCTIONS.
(a) There may be deducted from the total gross income, upon which the license fee or
tax is computed, revenues derived from business which the City is prohibited from taxing under
the constitution or laws of the state of Washington or the United States or the Charter of the City.
(b) There may be deducted from the total gross income, upon which the license fee or
tax is computed, the amount of state excise taxes, pursuant to RCW 82.18, imposed directly upon
persons using the service of a solid waste collection business and collected for payment to the
state by the solid waste collection business.
(c) There may be deducted from the total gross income, upon which the license fee or
tax is imposed under Section 3.50.050, revenues derived from providing the service of collecting
recyclable mater/als, as follows:
(1) commercial recycling: revenues derived from the service of collecting
commercial recyclable materials. This exemption is limited to mater/als actually resold and
computed in proportion to weight, as follows:
(i) any weight added by processing or treatment after collection is
subtracted from the weight as sold to obtain the allowable weight as sold; and
(ii) revenues are multiplied by a fraction, the numerator of which is the
allowable weight as sold and the denominator of which is the weight as collected.
(2) This deduction does not apply to any energy recovery or fuel-use process,
nor in any case where materials collected have not been sold for commercial reuse within 100
days from the date of collection. This period may be extended when a taxpayer shows to the
Department's satisfaction that market conditions necessitate a longer period for sale.
3.50.070 TAX - WHEN DUE.
The tax imposed by this Chapter shall be due and payable in monthly installments.
3.50.~?0080 RULES AND REGULATIONS.
The Director may establish administrative rules and regulations as deemed appropriate,
consistent with this chapter for the purpose of enforcing and carrying out its provisions.
3.50.0~090 SEVERABILITY.
If any provision or section of this chapter shall be held void or unconstitutional, all other
parts, provisions, and sections of this chapter not expressly so held to be void or unconstitutional
shall continue in full force and effect.
Utility Taxes
SECTION 3. Severabilitv. If any one or more sections, subsections, or
sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not
affect the validity of the remaining portion of this ordinance and the same shall remain in full
force and effect.
SECTION4. Effective Date. This ordinance shall take effect and be in force ten
(10) days from and after its passage, approval and publication as provided by law.
APPROVED by the City Council the day of ,2004
PASSED by the City Council the day of _, 2004
DAREN NYGREN, Council President
Approved this day of ,2004
CARY BOZEMAN, Mayor
ATTEST: APPROVED AS TO FORM:
PAULA JOHNSTON, Interim City Clerk ROGER A. LUBOVICH, City Attorney
PUBLISHED the day of ,2004
EFFECTIVE the day of ,2004
ORDiNANCE NO.
R:\LEGAL\Ordinances~Administration\Utility Taxes Amend.doc
Utility Taxes
DATE SUBMITTED: April 6, 2004 BILL
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
SUBJECT: HEARING AND Committee Meeting Date: April 20, 2004
ORDINANCE # VACATING A COUNCIL MEETING Date: APRIL 28, 2004
PORTION OF FIRST STREET LOCATED Department: PW&U, Engineering
BETWEEN MARION AND YANTIC Presenter: Michael C. Mecham
AVENUES. Phone: 473.5288
SUMMARY: The City received a petition from Victor Targett to vacate a portion of First Street
located between Marion and Yantic Avenues. This date has been scheduled for a public hearing in
accordance with state law and the Bremerton Municipal Code for first reading on the proposed
ordinance vacating the subject property. This is a Class III right-of-way and compensation is not
required in accordance with BMC 11.20.¢g0.
ATTACHMENTS: 1.) Ordinance # .; 2.) Site Map
FISCAL IMPACTS (Include Budgeted Amount): No Impact.
APPROVALS:
DEPARTMENT DIRECTO~
CITY ATTORNEY:
FINANCE DIRECTOR:
~ ~--- ~x ~ // :~ I ,..,o~or:~ AGENDA []
OPERATIONS:
RECOMMENDED MOTION:
A. Move to approve the attached ordinance on first reading, vacating a portion of First Street located
between Marion and Yantic Avenues.
B. Move to pass Ordinance # __ on second reading, vacating a portion of First Street located
between Marion and Yantic Avenues.
COUNCIL ACTION: [] Approve [] Deny [] Table [] Continue [] No Action
ab/Agenda Bills 2004/First Street Vacation, Agenda Bill for Ordinance
ORDINANCE NO.
AN ORDINANCE of the City Council of the City of
Bremerton, Washington, relating to the vacation of streets,
vacating a portion of First Street located between Marion and
Yantic Avenues in the City of Bremerton.
WHEREAS, the City received a petition to vacate a portion of First Street located
between Marion and Yantic Avenues in the City of Bremerton, and
WHEREAS, the City passed Resolution No. 2922 declaring its intention to vacate
a portion of First Street located between Marion and Yantic Avenues, which resolution also set a
hearing to take public comment or consider written objections to the vacation; and
WHEREAS, fewer than fifty percent of the property owners abutting said right-
of-way filed written objections to this action prior to the time set for public hearing herein; and
WHEREAS, a public hearing was held with proper notice on April 28, 2004, in
the City Council Chambers of the Bremerton City Hall to take public comment or consider
written objections to the vacation; and
WHEREAS, the City Council has determined that it is in the best interest of the
public to proceed with the vacation; and
WHEREAS, the City Council finds it appropriate to reserve certain easements
within the area to be vacated; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION1. The foregoing recitals are incorporated as if fully set forth herein.
SECTION2. A portion of First Street located between Marion and Yantic
Avenues in the City of Bremerton, as described in Exhibit A, which is attached and incorporated
herein by this reference, is hereby vacated to the abutting property owner including any and all
easements contained therein.
SECTION3. Reservation o_f Easements.
a. An easement is reserved for the City of Bremerton, Public Works and Utilities
Department for construction, operation, maintenance and repair of City utilities over, under and
upon the entire area vacated pursuant to this ordinance.
b. An easement is reserved for Cascade Natural Gas for operation, maintenance and
repair of a gas line and appurtenances within the area vacated pursuant to this ordinance.
1 Street Vacation -
First Street between Marion and Yantic Avenues
c. An easement is reserved for Puget Sound Energy for operation, maintenance and
repair of electrical facilities within the area vacated pursuant to this ordinance.
d. An easement is reserved for QWest for operation, maintenance and repair of
utilities within the area vacated pursuant to this ordinance.
SECTION 4. No vested rights shall be affected by the provisions of this
ordinance.
SECTION 5. Severabilitv. If any one or more section, subsections, or sentences
of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the
validity of the remaining portion of this ordinance and the same shall remain in full force and
effect.
SECTION 6. Effective Date. This ordinance shall take effect and be in force ten
(10) days from and after its passage, approval and publication as provided by law.
APPROVED by the City Council the day of ,2004.
PASSED by the City Council the day of ., 2004.
DAREN NYGREN, Council President
Approved this day of ., 2004.
CARY BOZEMAN, Mayor
ATTEST: APPROVED AS TO FORM:
Paula Johnston, Interim City Clerk ROGER A. LUBOVICH, City Attomey
PUBLISHED the day of ., 2004.
EFFECTIVE the day of ,2004.
ORDiNANCE NO.
R:\LEGAL\Ordinances~Public Works & UtilitiesWacation - Marion & Yantic.doc
2 Street Vacation -
First Street between Marion and Yantic A venues
EXHIBIT A
Legal Description
Right-Of-Way Vacation
A portion of First Street located between Marion and Yantic Avenues
THAT PORTION OF FIRST STREET SITUATE WITHIN THE PLAT OF
CHARLESTON NAVY VIEW ADDITION AS RECORDED IN VOLUME 4 OF
PLATS, PAGE 81, BEING A PORTION OF THE NORTHWEST QUARTER OF
THE NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 24 NORTH,
RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 52, BLOCK 3, SAID
PLAT OF CHARLESTON NAVY VIEW ADDITION ALSO BEING A POINT ON
THE SOUTH RIGHT-OF-WAY LINE OF FIRST STREET; THENCE WEST
ALONG THE SOUTH LINE OF SAID FIRST STREET 15.00 FEET TO THE
POINT OF BEGINNING; THENCE CONTINUING WEST 15.00; THENCE
NORTH PARALLEL WITH THE WEST LINE OF SAID LOT 52 A DISTANCE OF
30.00 FEET TO THE NORTH LINE OF SAID SECTION 22; THENCE EAST
ALONG SAID NORTH LINE 15.00 FEET; THENCE SOUTH PARALLEL WITH
THE WEST LINE OF SAID LOT 52 A DISTANCE OF 30.00 FEET TO THE
POINT OF BEGINNING.
SUBJECT TO AN EASEMENT FOR UTILITIES.
YANTIC A V~.
VACATED PER A.F ~/2001052J0042
~-.'.,k°~ ., ,.,.
NORTH: ASsu~ed
CONSULT~TS, INC. FOR: DO'EAST 14/~2/04[
~ ~.o. ~ ~ - m~ ,~ ~. (~$~t-~ DE~LOPMENT, L.L.C.
DATE SUBMITTED: 4/16/04 BILL #
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
SUBJECT: Resolution No. ~ e~,~ffinviting Committee Meeting Date: April 20, 2004
the International Speedway Corporation COUNCIL MEETING Date: April 28, 2004
(ISC) to consider Kitsap County as the Department: City Council
location for a NASCAR racing facility Presenter: Daren Nygren,
Council President
Phone: (360) 473-5280
SUMMARY: The Bremerton City Council supports the continued efforts in promoting
Kitsap County as the best location in the Northwest for a NASCAR racing facilitly.
ATTACHMENTS: Proposed Resolution No. ,,~,,~'
FISCAL IMPACTS (Include Budgeted Amount): 0
APPROVALS:
DEPARTMENT DIRECTOR:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET: .24f'_ ~'.~,/'~-f-'~,-----.~a_-~___ [
-~ '5 '~-// ~ I CONSENT AGE~A ~
OPE~TIONS: 3 '~ '~.. ' ~ ~
CO~CIL P~S~ENT: ~ ~ ~~ -"'
/ · n~~
~COMMENDED MOTION: Move to pass Resolutio o. ~ ~&.~ in support of inviting the
International Speedway Co~oration (ISC) to consider Kitsap County as the location for a NASC~
racing venue.
31
COUNCIL ACTION: [] Approve [] Deny [] Table [] Continue [] No Action
RESOLUTION NO. 2q~o~
A RESOLUTION of the City Council of the City of
Bmmerton, Washington affirming support for inviting the
International Speedway Corporation (ISC) to consider Kitsap
County as the best place in the Northwest for a new world class
racing facility.
WHEREAS, the International Speedway Corporation (ISC) has made it known
that it would like to locate a NASCAR racing venue in the Northwest, and has indicated interest
in Kitsap County as one of the potential sites for such a facility; and
WHEREAS, the Bmmerton City Council believes that locating such a facility in
Kitsap County would be of tremendous benefit to the local and state economies including retail
and recreational development and tourism; and
WHEREAS, the economic impact of a NASCAR racing complex could include
more than $200 million in construction spending, $100 million a year in direct and indirect
economic impacts, including 550 jobs, and $21 million in state and local taxes once a facility is
operational; and
WHEREAS, with numerous transportation options, including Bremerton
International Airport, the Washington State Ferry System, railroad system, and roadways, in
addition to available land, Kitsap County can provide the kind of access to and from a racing
facility that few, if any other locations can replicate; and
WHEREAS, Kitsap County has a strong history of motorsports involvement, and
a significant base of NASCAR fans for one of the fastest growing spectator sports in the country;
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Bremerton City Council does hereby voice its strong support
to invite the International Speedway Corporation (ISC) officials to consider Kitsap County as the
best place in the Northwest for a new world class racing facility.
PASSED by the City Council of the City of Bremerton, Washington on the 28th
day of April, 2004.
DAREN NYGREN, Council President
APPROVED AS TO FORM: ATTEST:
ROGER A. LUBOVICH, City Attorney PAULA JOHNSTON, Interim City Clerk
R:\LEGALkResolu/ions\City Council\NASCAR.doc
1
NASCAR