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Home My WebLink About05/16/2007 AGENDA m.,. ~ \ ! "I. FILE @011\1 @~ ~~~OOI CITY COUNCIL 345 6th Street, Suite 600, Bremerton, WA 98337-1873 0 (360) 473-5280 ***AMENDED*** MAY 16, 2007 CITY COUNCIL MEETING AGENDA 1. PRE-COUNCIL STUDY SESSION: 5:00 - 5:30 P.M. in COUNCIL CONFERENCE ROOM 603 A. General Council Business 2. CALL TO ORDER: 5:30 P.M. in CHAMBERS LOCATED ON FIRST FLOOR A. Pledge of Allegiance B. Invocation 3. MAYOR'S REPORT 4. PUBLIC RECOGNITION & ANNOUNCEMENTS 5. CONSENT AGENDA A. Claims & Check Register (#AB07-109) B. Minutes of Meeting - May 2, 2007 (#AB07-11 0) C. Minutes of Meeting - May 9,2007 (#AB07-111) D. Renewal of Pollution Liability Insurance (#AB07-112) E. Contract Extension between City of Bremerton and SOREN NORTHWEST, INC. for Lobbying and Consulting Services (#AB07-113) F. Interlocal Agreement for Mutual Aid and Establishing a Traffic Safety Task Force (#AB07-114) G. Requisitioning 151ntergraph Licenses for Mobile Computers in Police Vehicles (#AB07-115) H. Basic Life Support Services Agreement between City of Bremerton and HANDLERS RACING ASSOCIATION (#AB07-116) I. Resolution No. 3031 providing for an election on the West Hills Island Annexation during the August 21,2007 Primary Election (#AB07-117) J. Amendment NO.1 to the Professional Services Agreement with GEoENGINEERS, INC. for the Bremerton Gasworks Phase II - Environmental Site Assessment (#AB07-118) ., K. Ordinance No. 5009, creating Chapter 15.05; and amending Section 15.03.210 of the Bremerton Municipal Code relating to Fats, Oils, and Grease (FOG) Wastewater Pre-Treatment for Food Service Establishments (#AB07-119) L. Grant Agreement with the Washington State Department of Ecology to develop Blueberry Park and Budget Adjustment of $195,170 (#AB07-120) M. Application by SEATTLE OUTBOARD ASSOCIATION for 2007 Hydro Fest to be held on Kitsap Lake May 19 & 20,2007 (#AB07-121) N. Real Estate Purchase and Sale Agreement with Earnest Money Provision between City of Bremerton and United Association Local 26 Building Association (#AB07-122) CONTINUED ON BACK... II Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special accommodations should contact the City Clerk's Office at (360) 473-5323 by noon on the Monday preceding the Council meeting 6. GENERAL BUSINESS A. Ordin~mce No. 5003 3mending Soction 2.09.020 3nd Ch3ptor 2.30 of tho Bromorton Municipal Code (BMC) relating to City employoos covorod under tho City's Civil Sorvico Systom (#.^.B07 076) Postponod from ,".prf! 4, 2007 This item has been postponed to June 20, 2007 B. Artist Selection for "The Art Morken Law Enforcement Center" at 1025 Burwell Street to prepare artwork under the "1 % for Arts" program (#AB07 -123) C. Ordinance No. 5012 to establish a Cable Television Franchise Agreement with COMCAST OF WASHINGTON IV, INC. (#AB07-124) D. Budget Adjustment for installation and maintenance of 28 pole mounted Flower Baskets on Callow Avenue between Burwell Street & 9th Street (#AB07-125) E.. Justice Assistance Grant for 2007 (#AB07 -126) 7. PUBLIC HEARINGS A. Public Hearing and Ordinance No. 5013, vacating a portion of alleys lying adjacent to former City Hall between Burwell & 4th Streets and Washington & Pacific Avenues (#AB07-127) B. Public Hearing and Ordinance No. 5014, vacating a portion of former County Road No. 305 adjacent to Marine Drive (#AB07-128) 8. COUNCIL MEMBER REPORTS 9. ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING fI Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special accommodations should contact the City Clerk's Office at (360) 473-5323 by noon on the Monday preceding the Council meeting. CITY COUNCIL MEETING SPEAKERS LIST PLEASE NOTE THAT ALL REQUESTS FOR INFORMATION FROM THE CITY OF BREMERTON MUST BE SUBMITTED IN WRITING. THANK YOU. PLEASE PRINT YOUR NAME BELOW IF YOU PLAN TO SPEAK DURING THE COUNCIL MEETING TONIGHT Una Sv rl;T(/3Ve P /21 ~c; f,q;rz:r ~H /)5/ P7t/ \RR -The Charleston Business Association is a registered non profitj organized to promote the historic Charleston districe s unique businessesj neighborhoods & history & to participate in the revita[1zation of Bremerton/s oldest community - during the CBA Spring Clean Up volunteers donated over 50 hours of their free time to clear out litterj cut overgrown plantsj & sweep sandj dirt & broken glass from the alleysj streets & sidewalks of Charleston -Charleston residentsj merchants & land owners have been waiting IO years since the Charleston Community Plan was approved by the City in 1997 for improvements in land usej transportationj recreation & beautification -Charleston is a major entrance to Bremerton-help us make a positive first impression with a cleanj attractivej we[[ marked welcome mat for travelers -Charleston merchants have been working very hard to do what they can with their limited resources-many businesses in Charleston have made fa<;adej signage &lor lighting improvements in the past year -Charleston is a complete community that has retained its international flair. Charleston started as a community with its own unique identity & purpose-to service the shipyard employees & their families & has continued to do so even when many other businesses abandoned Bremerton -Charleston residentsj merchants & land owners are proud of our community & want to see its full potential realizedj but we cannot do it alone. -Thank you for your interest in the Historic Charleston Community and the Charleston Business Association. If you have any questions or commentsj please contact Beth Sheaj CBA President @ echo artworksj 626 N. Callow Ave. 360.405.4341 or beth@echoartworks.com DATE SUBMITTED: AGENDA BILL CITY OF BREMERTON CITY COUNCIL BILL # 07- /0 q SA .m.......................'a................................c...cm....a.............am...1 Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: Phone: SUBJECT: Claim & Checks Register Approval SUMMARY: ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): APPRO V ALS: DEP ARTMENT DIRECTOR: CITY ATTORNEY: . FINANCE DIRECTOR: MAYOR: l'ISCAL/BUDGET: 'elrERATIONS: - COUNCIL PRESIDENT: ~);~1.=>' j:/5J RECOMMENDED MOTION: Move to approve.' . 1) CheckWs E3/t{p~7- .3/C,92?, EFT's 7/ :2 ? - 7/ 37 - 2) Regular Payroll for 3) Retiree Payroll for COUNCILACTION, Love o Deny '0 Table ?-/~-07 Financial Services Cathy Johnson' CONSENT AGENDA I2J I $ / / d;;< .3~3 ,t,fL , ... $ $ o Contll~ue 0 No Action DATE SUBMITTED: BILL# 07-110 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 58 ........................................................................................ SUBJECT: City Council Meeting Minutes for meeting of May ~, J 00 7 Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: N/A Ma~ liP, ;)007 City ouncd Will Maupin, Council President (360) 473-5280 Phone: SUMMARY: Attached is a summary of the City Council Meeting held f1 t1 Y ;)..1 .J oc 7 . ATTACHMENTS: Meeting Minutes for i1 a J :;. ( ;;. 007 FISCAL IMP ACTS (Include Budgeted Amount): NI A APPROV ALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: Council President N/A N/A N/A COMMITTEE CHAIR COUNCIL PRESIDENT: N2 4!ft~~0~ CONSENT AGENDA 13' GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COlJNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, May 2,2007 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, of the NORM DICKS GOVERNMENT CENTER 345 6tl1 Street, Bremerton, Washington, Wednesday, May 2,2007, at 5:30 PM, with Council President Will Maupin presiding. Council members present were Nick Wofford, Dianne Robinson, Wendy Priest, Adam Brockus, Cecil McConnell, and Brad Gehring. Council Members Mike Shepherd and Carol Arends were absent. Also present were City Attorney Roger Lubovich; City Clerk Paula Johnston; and Council Assistant Christine Grenier. The Pledge of Allegiance was led by Council Member Brad GehrinQ followed by the invocation provided by Council Member Dianne Robinson. President Maupin announced that a Pre-Council Session to discuss General Council Business and a 10-Minute EXECUTIVE SESSION to discuss "Pending Litigation" per RCW 42.30.110 (1) (i) were held prior to the meeting. MA VOR'S REPORT · Presented the Employee Recognition Award for May 2007 to Cathy Johnson, Finance Officer and Treasurer. The Mayor and Finance Director Laura Lyon thanked her for 28 years of service to the City, and recognized her for her technical expertise and recognition to detail; · Thanked the Council for adopting financial policies so that the City will remain in good financial standing; · Reminded everyone that a Special Reception would be held on Friday, May 4 from 3:00 to 5:00 PM for the contractors and Public Officials; and the Public Grand Opening for the Harborside Fountain Park will be on Saturday, May 5 from 10:30 AM to 5:00 PM with the Ribbon Cutting Ceremony beginning at 12:00 Noon; and · Expressed interest in helping to resolve the ferry issue so that Bremerton and the rest of Puget Sound will be able to have affordable and efficient ferry service. PUBLIC RECOGNITION & ANNOUNCEMENTS Wvn Birkenthal added that there will be children's activities at the Harborside Park Grand Opening beginning at 1 0:00AM, and there will be refreshments as well as entertainment provided at the event. Adam Brockus invited the public to the Cinco de Mama festivities on Saturday, May 5th from 11 :00 AM to 3:00 PM in various locations in Manette. Kathleen Cahall thanked the Mayor for declaring next week "Drinking Water Week" and mentioned that there will be conservation give-aways at the Public Works & Utilities Department located at 3027 Olympus Drive; and encouraged people to visit the website www.volunteerkitsap.orq to find volunteer opportunities in Kitsap. Mike Walton provided information on various YMCA programs including Youth Tee ball, adult noon basketball, Military Date Night on Saturday, May 5th, family Splash & Jam swim, and the Strong Kids Campaign; and announced that the YMCA will be present at the Cinco de Mama events on Saturday. Kevin BerQ and Dick Hurlev expressed concerns regarding a series of incidents involving Diamond Parking that happened recently in a gtl1 Street neighborhood. Mr. Hurlev thanked Council Member Mike Shepherd for working with residents to address the issues but felt that enforcement has now turned to harassment. He hoped to have clarification on the City's regulations and that the issue will soon be resolved. City Council Reg. Mtg. Minutes Wednesday, May 2,2007 Page 2 of 6 Don Larson reported on Earth Day activities and thanked the Navy for picking up over 80 bags of trash which equated to over 20 cubic yards and encouraged Council Members to research how other cities address the litter problem; and announced that Jim Trainer of TREEZ, INC will be giving away tree seedlings on May 2 and 3 at the Hood Canal Nursery located in Port Gamble. People interested may receive more information by calling Don at (360) 373-7593. CONSENT AGENDA A. Check Numbers 316311 through 316548; and EFT-7092 through EFT-7111 in the amount of $995,097.62 for the period ending April 30, 2007 (#AB07-093) B. Minutes of Meeting - April 18, 2007 (#AB07-094) C. Minutes of Meeting- April 25, 2007 (#AB07-095) D. Ordinance No. 5006, amending Chapter 9A.12 of the Bremerton Municipal Code relating to the definition of a "Public Place" (#AB07-096) E. Bremerton Tunnel Construction Cooperative Agreement, Supplement No.1 with the Washington State Department of Transportation (WSDOT); and Purchase of Streetlight Standards from SPRING CITY ELECTRICAL MANUFACTURING COMPANY (#AB07-097) F. Shelter Care Plus Program Annual Renewal Contract with AGAPE UNLIMITED, Project Sponsor (AB#07-098) G. Ordinance No. 5007, amending Section 2.92.040 of the Bremerton Municipal Code relating to insurance, self-insurance and pooled coverage programs (#AB07-099) H. Budget Adjustment to the 2007 Risk Management Fund (#AB07-100) I. Budget Amendment for 2006 Carry Forward Items (#AB07-1 01) J. Budget Amendment for additional principal payments on the Conference Center variable rate debt obligation (#AB07 -102) K. Budget Amendment for additional street maintenance supplies (#AB07-103) There were no comments from the public. 06:01:18 M/S/C/U (Priest/Wofford) Move to approve the CONSENT AGENDA as presented. GENERAL BUSINESS 6A - AMENDMENT TO 2007 BUDGET FOR GENERAL FUND ALLOCATION TO 2007 RECIPIENTS OF CDBG FUNDING (#AB07-104): Betsv Howe, Department of Community Development, explained that in 2006, the City experienced strong financial performance in the General Fund. As a result of increased revenues and reduced expenditures, the General Fund had a higher ending fund balance than was anticipated to carry forward as the beginning fund balance for 2007. $18,000 of this balance carry forward is requested to provide a $2,000 funding 'boost' to nine public service agencies partially funded with CDBG funds in 2007. A breakdown of these agencies and the services provided is attached. She added that the additional funding would be used for Kitsap Sexual Assault Center for counseling of abused children; Kitsap Community Resources for staffing of transitional housing to prevent homelessness; RMH Services for counseling of mentally ill patients; YMCA for childcare scholarships; Bremerton Parks and Recreation Department for a lunch program at Matan and Evergreen Parks; Kitsap Boys and Girls Club to staff the new site at Naval Avenue Elementary School; Kitsap Literacy Council for helping individuals attain sufficiency and GED certifications; YWCA for a bilingual advocate; and Catholic Community Services to staff Benedict House. City Council Reg. Mtg. Minutes Wednesday, May 2,2007 Page 3 of 6 Larrv Ever, Kitsap Community Resources; Jerrv Reid and Ms. Billi Smith, Boys & Girls Club; Mike Walton, YMCA; Linda Jovce, YWCA; Joann Gower, Kitsap Sexual Assault Center; and Don Larson, Kitsap Diving Association and Kitsap Trees & Shoreline Association, all spoke of the programs this funding would assist and thanked the Council for their continued support. Mr. McConnell believed that this is a good use of surplus money and that it is best to give some money back to the community. Mrs. Priest and Mr. Brockus thanked the representatives for telling the' Council about the programs that are available. Mr. Maupin also thanked the service organizations for their work and wished that there was even more funding available. 06:20:42 M/S/C/U (Brockus/Robinson) Move to approve an amendment to the 2007 budget by $18,000 using General Fund Balance to provide $2,000 each to nine partially funded CDBG Public Service Projects for 2007. PUBLIC HEARINGS 7A - RESOLUTION NO. 3030 TO ADOPT THE 2008 COBG CDBG/HOME POLICY PLAN (#AB07- 105): Marie Vila, Department of Community Development, stated that the CDBG/HOME Policy Plan sets parameters for the City's management of its HUD entitlement including outlining the citizen participation plan, application and review processes, and eligibility and implementation requirements for grant funded projects. She added that changes in the plan were 1) HOME funding be included with CDBG funding in the competitive selection for eligible projects 2) The City will prioritize the use of HOME funds to Designated Blight Zones, and may set aside HOME funds for future use, including a City initiated project 3) Sets a maximum subsidy of $30,000 per homeowner unit created with HOME funds 4) Requires a match ratio of 2:1 (two dollars from other sources to each HOME dollar) and 5) HOME applicants will have the option to request funds as a grant or as a loan. Larrv Ever, Kitsap Community Resources, commended Betsy Howe and Marie Vila as staff who he worked with during the funding process; and thanked the City for their past and possible future support. Mike Walton, Kitsap County Community Development Corporation looked forward to working with the City during future application cycles and hoped that the KCCDC will be a more qualified applicant in the future. Mr. GehrinQ asked for clarification on blight zones. Ms. Vila answered that the blight zones would include Anderson Cove and downtown at this time. Ms. Robinson added that this plan has been discussed in committee and was pleased that this program is available to the public. Mr. Maupin commended staff for working to improve this process. Mr. Wofford encouraged the public to contact the Mayor's office if interested in serving on the citizens' committee that addresses this issue. Mr. Brockus announced that the application due date for CDBG and HOME funding is Friday, July 20tl1 at 5:00 PM. 06:31 :013 M/S/C/U (Wofford/Brockus) Move to approve the 2008 CDBG/HOME Policy Plan and pass Resolution No. 3030. City Council Reg. Mtg. Minutes Wednesday, May 2,2007 Page 4 of 6 6C - ORDINANCE NO. 5008 TO AMEND SECTION 17.04.040 "BUILDINGS AND CONSTRUCTION" AND SEVERAL MINOR AMENDMENTS TO TITLE 20 "ZONING CODE" OF THE BREMERTON MUNICIPAL CODE (#AB07-106): Nicole Ward, Department of Community Development, emphasized that the action before the City Council tonight is to conduct a public hearing and adopt Ordinance No. 5008 amending BMC Section 17.04.040 and several sections of the Zoning Code, BMC Title 20 including definitions, outright allowed uses for several zones, development standards for several zones, accessory dwelling unit requirements, fencing requirements, landscaping requirements, and sign standards. The Planning Commission and Community Development staff supports the passage of these amendments to the Zoning Code. Ida Mae Cooper expressed concerns over the increase in the size of the accessory dwelling units (ADU's) and asked if this will be allowed in single family residential neighborhoods. Helen Miller asked if the fencing requirements apply to new construction or apply to pre-existing homes. Don Larson encouraged the City to support low impact development when approving projects to maintain the character of neighborhoods and to minimize pollution. Patricia Hennessv was supportive of the proposed changes and believed that the changes would support a project she has planned for her neighborhood. Louie Clauson suggested that a 2400-square foot total for both home and accessory dwelling unit be considered. Scott McBride asked Council to support the changes so that people may build housing for aging parents. Jerrv Scott suggested that 1500-square feet be the limit that would allow people to construct projects that are both useful but not overwhelming to the neighborhood. Jim Fitzwater also suggested that the minimum square footage be increased to accommodate a project since the 1200 square footage would not be enough to protect and store property. 6:56:03 Main Motion was made as discussion continued... 6:56:58 Amending Motion was made as discussion continued... Mr. McConnell and Ms. Priest provided comments in opposition to the amendment. Ida Mae Cooper expressed concerns over the potential size of the ADU's. Mr. Maupin responded that the proposed change would not change the requirements for accessory dwelling units. Ms. Ward stated that the footprint of the structure is limited to 60% of the lot size and that the size of the structure would be reached sooner for smaller residences than for larger ones when the 60% is applied. Ms. Spencer added that the maximum would be up to 2000-square feet and could be divided among smaller structures or one large structure, based on the suggested amendment. Mr. Gehrin~ emphasized that the larger square footage would allow someone with a larger lot the opportunity to store their items, and that the option is fair and should be considered. 07:10:32 A-M/S/F(Gehring/Robinson) Move to amend BMC Section 20.79.060 (b) (1) to modify the language to read "the maximum area for all accessory structures shall be eighty percent (80%) of the principal residential use not to exceed two-thousand (2000)-square feef'. City Council Reg. Mtg. Minutes Wednesday, May 2,2007 Page 5 of 6 Voted in favor of the motion: Robinson, Gehring, Brockus Voted against the motion: Priest, Wofford, McConnell, Maupin Motion failed: 3-Yes; 4-No Ms. Ward and Ms. Spencer addressed comments made previously by citizens... Ms. Ward responded that either the residence or the ADU must be owner occupied which means that the units will be better cared for and maintained; and the size of the structure will be smaller than the main residence. Ms. Spencer responded that there will be no further permitting for fences; and scale is addressed in the code changes by keeping the size of the ADU smaller than the residence. Mr. McConnell supported the changes relating the fences but did not support accessory dwelling units; and asked for more information on tree size standards. Ms. Ward clarified that tree size varies based on location such as landscaped areas and residential areas. Ms. Robinson asked for clarification on what defines a shop. Ms. Ward summarized that garages are for storage and shops are for projects. Mrs. Priest did not believe that having ADU's goes against the goal of home ownership since the owner resides in one of the structures. Mr. McConnell asked for clarification on development coverage and lot coverage. Ms. Ward stated that development coverage and lot coverage are essentially the same, but in the code the language is used interchangeably. Mr. Wofford hoped that the Planning Commission consider a larger ADU and then bring that proposal back to Council. Mr. Gehrina added that owners have a vested interest in protecting their property and providing affordable housing. Mr. Maupin believed that the problem with rentals in the City is that the rentals are operated by absentee landlords; and believed that having ADU's would improve home ownership and alleviate bad renter situations. Mrs. Priest asked for clarification on density calculation. Ms. Ward stated that the language allows staff to use lot boundaries instead of tax boundaries to determine true density in a given neighborhood. 07:27:56 M/S/C/U (Wofford/Brockus) Move to pass Ordinance No. 5008 to amend BMC Section 17.04.040 Buildings and Construction and several sections of the Zoning Code, BMC Title 20. Voted in favor of the motion: Robinson, Wofford, Brockus, Priest, Maupin Voted against the motion: Gehring, McConnell Motion carried: 5-Yes 2-No COUNCIL MEMBER REPORTS Brad Gehrina thanked Community Development for their work on the zoning code; and thanked Public Works & Utilities for hosting the Annual Spring Clean-Up. Adam Brockus invited the public to the Cinco de Mama festivities on Saturday, May 5th from 11 :00 AM to 3:00 PM in Manette. Dianne Robinson commended Officer Andy Oakley and discussed Block Watch programs; thanked Parks & Recreation for bringing in children's play equipment to Matan Park and looked forward to improved lighting at the parks. City Council Reg. Mtg. Minutes Wednesday, May 2,2007 Page 6 of 6 Nick Wofford encouraged the public to visit the website www.volunteerkitsap.orq and consider a volunteer position. With no further business, President Maupin adjourned the Council Meeting at 7:31 PM. The Council reconvened in the Council Conference Room for a STUDY SESSION to hear a presentation on an upcoming agenda item. Prepared and Submitted by: ~~.~~ CHRISTINE GRENIER ' Council Assistant Attest: PAULA JOHNSTON, City Clerk WILL MAUPIN, City Council President WM:PJ:ls:cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL BILL # 0 7 - II L DA TE SUBMITTED: 5~ ........................................................................................ SUBJECT: City Council Meeting Minutes for meeting of May ~ J.oo7 Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: N/A l1aIC /b, :J.Do7 City ouncIl Will Maupin, Council President (360) 473-5280 Phone: SUMMARY: Attached is a summary of the City Council Meeting held Ma.1 'I, :2007 A TT ACHMENTS: Meeting Minutes for M a .., Q " A 7 J I, 01- (,.If> FISCAL IMPACTS (Include Budgeted Amount): N/ A APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: Council President N/A N/A N/A COMMITTEE CHAIR COUNCIL PRESIDENT: N2 Ai ~~/v~ CONSENT AGENDA G::J GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, May 9,2007 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, of the NORM DICKS GOVERNMENT CENTER 345 6th Street, Bremerton, Washington, Wednesday, May 9, 2007, at 5:30 PM, with Council Vice-President Brad Gehring presiding. Council members present were Nick Wofford, Carol Arends, Dianne Robinson, Mike Shepherd, Wendy Priest, Adam Brockus, and Cecil McConnell. Council Member Will Maupin was absent. Also present were City Clerk Paula Johnston; City Attorney Roger Lubovich; and Legislative Assistant Lori Smith. The Pledge of Allegiance was led by Council Member Cecil McConnell followed by the invocation provided by Pastor Oliver Warren of our Eagles' Wings Fellowship Church. Vice-President Gehrina announced that a Pre-Council Session was held at 5:00 PM in the Council Conference Room to discuss General Council Business; and included a 15-Minute Executive Session to discuss "Potential Litigation" per RCW 42.30.110 (1) (i) and "Labor Negotiations" per RCW 42.30.140 (4) (b), and action is anticipated on a Settlement Agreement. The Council will reconvene in the Council Conference Room following this brief business meeting for a STUDY SESSION to hear presentations on upcoming agenda items. PUBLIC RECOGNITION & ANNOUNCEMENTS Carol Arends asked anyone interested in participating in the Forest Ridge Park Volunteer Stewardship Day to come to the Park on Saturday, May 12, 2007 from 8:00 AM to Noon. Mike Shepherd encouraged the public to wear a spring hat and attend the Spring Tea & Fashion Show hosted by the West Sound Arts Council on Saturday, May 12, 2007 at 1 :00 PM. Don Larson was disappointed that not too many Kitsap County residents took advantage of the free tree seedlings given away at the Hood Canal Nursery last weekend, but he was able to obtain a bag of seedlings and hoped the Parks Department would assist him in getting the trees planted in and around the City of Bremerton. Lastly, he would like to see the City help find projects for future Eagle Scouts. CONSENT AGENDA A. Check Numbers 316549 through 316697; and EFT-7112 through EFT-7122 in the amount of $1,209,438.71; Regular Payroll in the amount of $696,885.62 for the pay period ending April 30, 2007 (#AB07 -107) There were no comments from the public. 05:40:35 M/S/C/U (Priest/Arends) Move to approve the CONSENT AGENDA as presented. GENERAL BUSINESS A. Settlement Agreement with Carole Heavener (#AB07 -108) - An Executive Session was held prior to the meeting to discuss "Potential Litigation" per RCW 42.30.110 (1) (i) 05:42:35 M/S/C/U (McConnell/Arends) Move to approve the settlement agreement regarding Carole Heavener and authorize the Mayor to finalize and execute the settlement agreement with substantially the same terms and conditions as presented. City Council Reg. Mtg. Minutes Wednesday, May 9,2007 Page 2 of 2 Vice-President GehrinQ asked the Council Members to reconvene in the Council Conference Room for a STUDY SESSION to hear presentations on upcoming agenda items, and mentioned the public was welcome to attend. With no further business, the Council Meeting was adjourned at 0:00 PM. Prepared and Submitted by: 1,{J2D~~jj12 LORI SMITH Legislative Assistant Attest: PAULA JOHNSTON, City Clerk WILL MAUPIN, City Council President WM:PJ:ls:cg DATE SUBMITTED: April 30, 2007 BILL # D7-11d- AGENDA BILL CITY OF BREMERTON CITY COUNCIL 5D ........................................................................................ SUBJECT: Renewal of Pollution Liability Insurance Committee Meeting Date: May 9,2007 COUNCIL MEETING Date: May 16,2007 Department: Financial Services Presenter: Peggy Lesser~~ Phone: 473-5302 SUMMARY: The City of Bremerton's Pollution and Remediation Legal Liability Insurance was last written with a three-year policy term in May, 2004, That coverage expires May 16,2007. The current insurer will renew that coverage for a three-year tenn with a premium of $60,042.50, an increase of 9% over the last three years. The quoted coverage is for a $ I million limit with a $ I 00,000 deductible. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): The quoted premium is within budget authority. APPROV ALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: J?;;d?/~:M CONSENT AGENDA GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: I move to authorize the Risk Manager to purchase liability insurance ti'om Indian Harbor Insurance Company. COlJNCIL ACTION: n Approve n Denv n Table n Continue n No Action BILL# 07 - 1(3 DATE SUBMITTED: May 1,2007 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SE ........................................................................................ SUBJECT: Approval of Contract Extension between the City of Bremerton and Soren Northwest, Inc. for Lobbying and Consulting Services Committee Meeting Date: 5-9-07 COUNCIL MEETING Date: 5-16-07 Department: Econ. Development Presenter: Gary Sexton Phone: 473-5282 SUMMARY: Commencing in 2006, and extended until April 2007, the scope of work performed by Soren Northwest was expanded beyond lobbying consulting services to include the coordination of the application process and successful competition for state grants to fund capital projects desired by the City. To continue these services, staff recommends that the existing contract be extended until December 31,2007, creating a contract period of January 1,2006 to December 31, 2007, with the total compensation not to exceed $62,400. ATTACHMENTS: Contract Modification Agreement No.2 Between The City of Bremerton and Soren Northwest, Inc. FISCAL IMP ACTS (Include Budgeted Amount): Adequate funds are budgeted through General Fund Non-Departmental Miscellaneous and Economic Development for the additional compensation. APPROV ALS: DEP ARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: ~ CONSENT AGENDA GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve Contract Modification No.2 between the City of Bremerton and Soren Northwest, Inc, to extend the contract termination date to December 31, 2007, for lobbying and consulting services with compensation not to exceed $62,400 and authorize the Mayor to finalize and execute this agreement in substantially the same form as presented. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action CONTRACT MODIFICATION AGREEMENT NO.2 BETWEEN THE CITY OF BREMERTON AND SOREN NORTHWEST, INC. DATE THIS CONTRACT MODIFICATION AGREEMENT SPECIFICALLY AMENDS THE Professional Services Agreement (the "Contract") entered into between the City of Bremerton and Soren Northwest, Inc. on February 17,2006 and as first modified on October 4, 2006. All provisions in the Contract shall remain in full force and efTect except as expressly modified by this document. For valuable consideration and by mutual consent of the parties, the modifications to the Contract are as follows: H. Section H. Term, is modified as follows: This Agreement commences on January 1, 2006 and terminates on April 30, 2007 December 3 L 2007. HI. Section HI. Compensation, is modified as follows: In consideration of the services provided pursuant to this Agreement, the City shall pay Consultant Two Thousand Five Hundred and No/IOO Dollars ($2,500.00) per month until .^..pril 30, 2007 December 31, 2007. It is estimated that SNW will commit at least thirty (30) billable hours toward the City's concerns each month. City agrees to reimburse SNW for expenditures for postage, facsimile transmission, telephone calls, and photocopying during the course of the contract not to exceed $100.00 per month on average. SNW shall submit an itemized communications expense statement quarterly. It is understood that travel expenses which are incurred at the direction the City outside of Kitsap, King, Pierce and Thurston counties (including lodging, meals, airfare and mileage) will be reimbursed by the City. Total compensation shall not exceed Forty One Thousand Six Hundred and Noll 00 Dollars ($11,600.00) Sixty Two Thousand Four Hundred and Noll 00 Dollars ($62,400.00) plus authorized reimbursable travel expenses. IV. Consultant accepts all requirements of this Contract Modification by endorsing below. Consultant further agrees that this Contract Modification constitutes full and final settlement of all of the Consultant's claims for contract time and for all costs of any kind, including without limitation, costs of delays related to any work either covered or affected by this Contract Modification, claims related to on-site or home office overhead, or lost profits. This Contract Modification does not limit the City's right to bring a claim for past performance. The undersigned consultant approves the foregoing Contract Modification as to the changes, if any, in the contract price specified for each item, including any and all supervision costs and CONTRACT MODIFICA nON Soren Northwest, Inc. Mod #2 other miscellaneous costs relating to the change in work, and as to the extension of time allowed, if ~lDY, for completion of the entire work due to said Contract Modification. This document will become a supplement of the contract and all provisions will apply hereto. It is understood that this Contract Modification shall be effective when approved by the City of Bremerton. The parties whose names appear below warrant that they are authorized to enter into a contract modification that is binding on the parties of this contract. In addition, Consultant warrants that it has or will inform the surety of this change, and shall take appropriate action to modify any bonds required under the contract to address this change. IN WITNESS WHEREOF, the parties have executed this Contract Modification on the day and year first written above. CONSULTANT THE CITY OF BREMERTON By Its By Its Cary Bozeman Mayor DATE: DATE: APPROVED AS TO FORM: ATTEST: Bremerton City Attorney City Clerk R:\Legal\Legal\Contracts\FINANCE\Soren Northwest, Inc. Amend 2.doc CONTRACT MODI FICA TION Soren Northwest, Inc. Mod #2 2 DATE SUBMITTED: April 2, 2007 BILL # 07 - I I 4 AGENDA BILL CITY OF BREMER TON CITY COUNCIL 5F ........................................................................................ SUBJECT: Interlocal Agreement for Mutual Aid and Establishing a Traffic Safety Task Force Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: Phone: May 9,2007 May 16, 2007 Police Chief Rogers 473-5750 SUMMARY: The interlocal agreement is with Kitsap County Sheriff and Police Departments of Port Orchard, Poulsbo, Bainbridge Island and Bremerton. The document contains 19 sections. Some titles are the duration, scope, purpose, financing, administration, operations, task force coordinator, employment, and use of property. The Task Force directly contributes to the reduction and severity of traffic related deaths and injuries in Bremerton and Kitsap County. The agreement is in effect until December 31,2011. ATTACHMENTS: Interlocal Agreement for Mutual Aid and Establishing a Traffic Safety Task Force FISCAL IMPACTS (Include Budgeted Amount): Task Force funding is a cost sharing expenditure. For 2007, the City's obligation is $3,000.00 and is in the Police Department budget. APPROV ALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: ~ CONSENT AGENDA Br GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve the Interlocal Agreement for Mutual Aid and Establishing a Traffic Safety Task Force and authorize the Mayor to finalize and execute the agreement with substantially the same telms and conditions as contained in the proposed interlocal agreement. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action RETURN TO: KITSAP COUNTY TRAFFIC SAFETY TASK FORCE c/o Kitsap County Sheriffs Office 614 Division, MS-37 Port Orchard, W A 98366 INTERLOCAL AGREEMENT FOR MUTUAL AID AND ESTABLISHING A TRAFFIC SAFETY TASK FORCE WHEREAS, the Kitsap County Sheriffs Office, Port Orchard Police Department, Bremerton Police Department, Poulsbo Police Department and Bainbridge Island Police Department ("parties") desire to participate in the Kitsap County Traffic Safety Task Force ("Task Force") for the purpose of providing mutual law enforcement assistance in order to target, and apprehend individuals who commit traffic infractions and offenses in general, and, in particular, individuals who commit crimes and infractions such as driving under the influence, speeding, occupant protection and underage drinking; and WHEREAS, it is the desire ofthe various law enforcement agencies within Kitsap County to participate in such Task Force; and WHEREAS, multi-agency participation in such a Task Force is possible by virtue ofthe Washington Mutual Aid Peace Officer Powers Act set forth in Chapter 10.93 RCW and the Interlocal Cooperation Act set forth in Chapter 39/34 RCW. NOW, THEREFORE, it is mutually agreed as follows: Definitions: "Hosting agency," means the participating agency located in the jurisdiction in which Task Force duties are being performed, "Participating agency," has the same meaning as "primary commissioning agency" set forth in RCW 10.93.020(8). Section 1: Effective Date~ Duration. This Agreement shall become effective upon the later ofthe happening of each of the following events: a. approval by the Kitsap County Sheriff; b. approval by the governing bodies of each party; and c. filing ofthis Agreement with the Kitsap County Auditor. Page 1 of 11 This Agreement will be in effect for a period of approximately four years from its effective date and will terminate according to the provisions of Section 5, herein. Section 2: Scope. Parties to this Agreement will each provide law enforcement personnel for Task Force emphasis operations within targeted areas as set forth in Attachment 1, incorporated by reference herein. The areas selected for emphasis operations at any particular time during the term of this Agreement shall be detennined by the joint administrative board. Section 3: Purpose. The purpose of this Agreement shall be mutual law enforcement assistance in order to apprehending individuals who commit traffic infractions and who drive under the influence, drink while underage, speed, and who commit occupant protection offenses within specifically targeted areas of Kit sap County. No separate legal entity is created by this Agreement. Section 4: Financin2. Consistent with Section 9, herein, each participating agency shall bear the financial responsibility for each of its employees who participate in the Task Force, whether those employees be peace officers or administrative employees, including but not limited to, salary, benefits and worker's compensation insurance. Section 5: Termination. This Agreement shall terminate on December 31,2011 unless an earlier termination date is agreed upon in writing by all parties. If any particular party wishes to terminate its participation under this Agreement, that party must provide 90 days' prior notice in writing, to each party to this Agreement. Section 6: Administration. This Agreement shall be administered by a joint board comprised of the Kitsap County Sheriff and the Chiefs of Police for the cities of Bremerton, Bainbridge Island, Port Orchard and Poulsbo, or their respective delegates. Section 7: Operations. When Task Force emphasis operations are scheduled, the operations shall be coordinated by an employee holding a rank of sergeant or higher from the scheduled hosting agency. Unless an action taken by an officer assigned to the Task Force can be directly attributed to the direction and control of the hosting agency's supervisor, all actions by an officer will be considered actions by that officer, acting under the direction and control of that officer's participating agency and according to that participating agency's policies and procedures, and no allocation of liability to the other participating agencies is otherwise intended by this Agreement. The coordination provided by Kitsap County pursuant to Section 9, herein, shall not be considered an allocation of liability to Kitsap County under RCW 10.93.040. Page 2 of 11 Section 8: Use of Property. Each agency shall be responsible for its own property used during the term of this Agreement and any propeliy acquired by an agency for the purposes of effectuating the temlS of this Agreement shall remain with that agency upon temlination of the Agreement. Section 9: Coordination~ Emplovment. The Task Force Coordinator shall be responsible for coordinating Task Force related communications between the participating agencies. The Task Force Coordinator is an employee of Kit sap County and funding for that position will be the sole responsibility of Kitsap County. Each officer or employee assigned to the Task Force shall remain an employee of the participating agency. As such, the parties shall not have the authority to control employees ofthe other parties. Each officer or employee assigned to the Task Force shall be considered an employee of the participating agency, which agency shall be solely and exclusively responsible for that employee. All rights, duties and obligations of the participating agency as regards its employees shall remain with that agency. Each officer or employee assigned by the participating agency shall be the responsibility of that agency for purposes of any losses, claims, damages, or liabilities arising out of or related to the services provided by that officer or employee to the Task Force or the activities of that officer or employee while performing Task Force duties. Section 10: Participatin2 A2encies. A list of the agencies which will be participating in the Kitsap County Traffic Safety Task Force is attached hereto as Attachment 2. Such list of participating agencies may be modified from time to time to add or delete agencies. Later approval and filing of this Agreement by additional agencies shall be deemed an authorized amendment to any Agreement already on file with the Kitsap County Auditor, without the need for reconsideration and approval by parties that approved and executed the Agreement originally filed, with the following exception: if terms of the Agreement have changed, the Agreement shall need reconsideration, approval and execution by all parties to the Agreement. In that event, the newly approved Agreement will contain provisions indicating amendment of the Agreement originally on file with the Auditor. Each participating agency shall maintain a current list of participating agencies on file together with a copy of this Agreement. Section 11: Filin2. A copy of this Agreement shall be filed with the Kitsap County Auditor. Consistent with Section 1, herein, this Agreement will not be effective or enforceable unless this Agreement has been filed with the Kitsap County Auditor. Section 12: Consent. The undersigned hereby individually consent to the full exercise of peace officer powers within their respective jurisdictions by any and all properly commissioned officers of agencies that are signatories to this Agreement and Page 3 of 11 who are engaged in any operation ofthe Task Force. The undersigned also hereby individually consent to the exercise within their respective jurisdictions of peace officer powers by specially commissioned officers of agencies that are signatories to this Agreement (specifically reserves!) and who are engaged in any operation of the Task Force. The consent granted herein as to specially commissioned officers shall be consent to exercise only those powers granted by the commissioning agency. Each such consent shall be valid during the term of this Agreement, unless revoked in writing. The consents given herein not intended to reallocate, under RCW 10.93.040, the responsibility of the participating agencies for the acts or omissions of their officers. Section 13: Indemnification and Limitation of Liability. The parties agree that each of the parties shall, at all times, be solely responsible for the acts or the failure to act of its personnel that occur or arise in any way out of the performance ofthis Agreement by its personnel only and to save and hold the parties and their personnel and officials harmless from all costs, expenses, losses and damages, including cost of defense, incurred as a result of any acts or omissions of the party's personnel relating to the performance of this Agreement. In the event that a claim and/or lawsuit is brought against a party to this Agreement, or against any party's officers, officials or employees for actions arising out of their conduct under this Agreement, it shall be the duty of each such party to promptly notify the other parties that the same has been initiated. ~ Each party and their respective defense counsel shall, to the extent reasonably possible and consistent with the best interests of their respective clients, cooperate with other parties to this Agreement and their respective defense counsel in the defense of any lawsuit arising out of or under this Agreement, and shall agree, whenever possible, to share non-attorney fee-related costs such as records gathering, preparation oftrial exhibits, the retention and payment of expert witn~sses, and the cost of deposition reporting and transcription. Each party hereto shall obtain and maintain in full force and effect public liability and pI:operty damage insurance or self-insurance coverage in the amount of at least $1 million per occurrence to cover claims for injury to persons or damage to property arising from the performance of this Agreement. Insurance coverage shall not be cancelled by any party except upon thirty (30) days prior written notice by certified mail, to all other parties. See RCW 10.93.020(5) and RCW 10.93.090(2) Page 4 of 11 Nothing herein shall require or be interpreted to: a. Waive any defense arising out ofRCW Title 51. b. Limit or restrict the ability of any party, or any party's officials, officers or employee's or legal counsel for any party, official, officer or employee to exercise any right, defense or remedy which a party to a lawsuit may have with respect to claims or third parties, including any good faith attempts to seek dismissal of legal claims against a party by any proper means allowed under the civil rules in either state or federal court. c. Cover or require indemnification or payment of any judgment against any individual or party for intentional wrongful conduct, conduct outside the scope of employment of any individual, or for any judgment for punitive damages against any individual or party. Payment of punitive damage awards, fines or sanctions shall be the sole responsibility of the individual against whom said judgment is rendered and/or his or her employer, should that employer elect to make said payment voluntarily. This Agreement does not require indemnification of any punitive damage awards or for any order imposing fines or sanctions. d. The parties shall, to the best oftheir ability, coordinate their liability insurance coverages and/or self-insured coverages to the extent possible to fully implement and follow the Agreement set forth herein. However, the consent of any liability insurance carrier or self-insured pool or organization is not required to make this Agreement effective as between the parties signatory to this Agreement and the failure of any insurance carrier or self-insured pool or organization to agree or follow the terms of this provision on liability shall not relieve any party from its obligations under this Agreement. Nothing in this Agreement shall be interpreted to create third party rights in any entity not a signatory to this Agreement. The provisions of this section shall survive termination of this Agreement, whether termination is by all parties, or by one or more parties. Section 14. Amendment. Any party may request changes to this Agreement, however, no change or addition to this Agreement shall be valid or binding upon any party unless such change or addition be in writing. To be considered effective and enforceable against a party, any such amendments shall conform to the procedures set forth in Section 1 herein. Page 5 of 11 Section 15. Notice. Notice provided for in this Agreement shall be sent by certified mail to each member of the joint board, as set forth in Section 6, herein. Section 16. Jurisdiction and Venue. This Agreement has been and shall be construed as having been made and delivered with the State of Washington, and it is agreed by each party hereto that this Agreement shall be govemed by laws of the State of Washington, both as to interpretation and performance. Any action of law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof, shall be instituted and maintained only in any of the courts of competent jurisdiction in Kitsap County, Washington. Section 17. Severability. If, for any reason, any part, term or provision of this Agreement is held by a court of the United States to be illegal, void or unenforceable, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. If it should appear that any provision hereof is in conflict with any statutory provision of the State of Washington, said provision which may conflict therewith shall be deemed inoperative and null and void insofar as it may be in conflict therewith. Section 18. Entire A2:reement. The parties agree that this Agreement is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. Failure to comply with any of the provisions stated herein shall constitute material breach of contract and is cause for termination. It is also agreed by the parties that the forgiveness of the nonperformance of any provision of this Agreement does not constitute a waiver of the provisions of this Agreement. Section 19. Execution in Counterparts. This Agreement is intended to be executed in counterparts, and every such counterpart shall be considered an original Agreement. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed the day and year first hereinabove written. ***Signatures Begin on Following Pages*** Page 6 of 11 DA TED this _ day of , 2007. CHIEF MATT HANEY Bainbridge Island Police Department Approved this _ day of ,2007. CITY OF BAINBRIDGE ISLAND MAYOR DARLENE KORDONOWY Bainbridge Island, V.I ashington APPROVED AS TO FORM: City Attorney Bainbridge Island, Washington ATTEST: ROSALIND LASSOFF, CITY CLERK Page 7 of 11 DATED this _ day of ,2007. Approved this _ day of ,2007. CITY OF BREMERTON APPROVED AS TO FORM: City Attorney Bremerton, Washington ATTEST: P AULA JOHNSTON, CITY CLERK Page 8 of 11 DATED this _ day of ,2007. CHIEF ALAN TOWNSEND POli Orchard Police Department Approved this _ day of ,2007. CITY OF PORT ORCHARD MAYOR KIM ABEL Port Orchard, Washington APPROVED AS TO FORM: City Attorney Port Orchard, Washington ATTEST: Michelle Merlino, City Clerk Page 9 of 11 DATED this _ day of ,2007. CHIEF JEFF DORAN Poulsbo Police Department Approved this _ day of ,2007. CITY OF POULSBO MA YOR DONNA JEAN BRUCE Port Orchard, Washington APPROVED AS TO FORM: City Attorney Poulsbo, Washington ATTEST: KAROL JONES, CITY CLERK Page 10 of 11 DATED this _ day of ,2007. SHERIFF STEVE BOYER Kitsap County Sheriff's Office Approved this day of ,2007. BOARD OF COUNTY COMMISSIONERS KITSAP COUNTY, WASHINGTON CHRIS ENDRESEN, Chair JAN ANGEL, Commissioner JOSH BROWN, Commissioner ATTEST: OPAL ROBERTSON Clerk of the Board APPROVED AS TO FORM: MARTIN MUENCH, Deputy Prosecuting Attorney Kitsap County Prosecuting Attorney's Office Page 11 of 11 DATE SUBMITTED: April 12, 2007 BILL # 07- ( , 5 5~ AGENDA BILL CITY OF BREMERTON CITY COUNCIL ........................................................................................ SUBJECT: Requisitioning 15 Intergraph Licenses for Mobile Computers (MCTs) in Police Vehicles Committee Meeting Date: May 9, 2007 COUNCIL MEETING Date: May 16, 2007 Department: Police Presenter: Tim Sholtis Phone: 473-5277 SUMMARY: The City of Bremerton is purchasing 15 software licenses to equip mobile computers in police vehicles to connect with the Intergraph Law Enforcement Automated Data System (VLEADS), an application used for officer reporting. Intergraph is the vendor that provides the computer aided dispatch (CAD) for CenCom and the incident reporting system for all the law enforcement agencies in Kitsap County. Kitsap County Applications Services is the seller/provider and 24 Bremerton police vehicles will have the program. ATTACHMENTS: Requisition 70088 FISCAL IMPACTS (Include Budgeted Amount): $32,202.60 will be charged against the funds provided under the COPS MORE 2002 federal tec1mology grant. These expenditures are included in . the adopted 2006 budget, but were not expended and require approval to roll forward to 2007. ~.c!. APPROV ALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: ~~ '(57 CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve and ratify the Intergraph license puchase for $32,202.60 from Kitsap County Applications Services and amend the 2007 budget to include expenditures and related grant revenue sources for this amount which was previously approved in the 2006 budget, but was not completed by year end 2006. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action PAGE 1 REQUESTED REQUIRED 04/10/07 04/10/07 APPROVAL GROUP PDADMIN POLICE ADMINISTRATION REQUISITION 70086 BUYER TIMOTHY SHOLTIS SHIP TO 2000 POLICE ADMINISTRATION CITY OF BREMERTON 1025 BURWELL BREMERTON WA 98337 ATTN: CAROLINE BUSHEY ***ENCUMBERED*** VENDOR 21174 KITSAP CO DEPT OF INFO SE 614 DIVISION ST MS-21 PORT ORCHARD WA 98366-4676 FREIGHT LN/ST COMMODITY STOCK NO QUANTITY UOM 01 1.00 YR o 15 - WINDOWS NT SERVER CLIENT SOFTWARE LICENSES UNIT PRICE 32,202.6000 EXTENSION/ TAX/TRADE-IN 32,202.60 0.00 0.00 32,202.60 TOTAL PRICE BUDGET CODE 594.2120 ACCOUNT PROJECT 56440 1304 ACCOUNT 56440 CHARGE AMOUNT 32,202.60 REQUISITION TOTAL 32,202.60 PAGE TOTAL 32,202.60 DATE SUBMITTED: 05-02-07 BILL# ()7- 1/0 51-\ AGENDA BILL CITY OF BREMERTON CITY COUNCIL ........................................................................................ SUBJECT: Basic Lifc Support Agrccmcnt hctwecn thc City of Brcmerton and Handlers Racing Association Committce Mceting Datc: 05-09-07 COUNCIL MEETING Date: 05-16-07 Department: Fire Presenter: Al Duke, Fire Chief Phone: 473-5381 SUMMARY: This is an agreement between the City of Bremerton and Handlers Racing Association to provide one fire engine with a firefighter and one firefighter/EMT, at a minimum, on each race date. South Kitsap Fire & Rescue has heen providing this service for a number of years, but it has now placed a strain on their services to fill these positions every weekend from April till October. The Handlers Racing Association is reimbursing the City at a rate of $100.00 an hour. The Fire Department shall than hire individuals on overtime to cover the event and not take away from the on- duty staffing. ATTACHMENTS: Agreement between the City of Bremerton and Handlers Racing Association. FISCAL IMPACTS (Include Budgeted Amount): This Agreement will generate approximately $18,000 in revenues and corresponding expenditures in the Fire Department. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: ~ CONSENT AGENDA I8r GENERAL BUSINESS D PUBLIC HEARING D RECOMMENDED MOTION: Move to approve the Basic Life Support services agreement hetween the City of Bremerton and Handlers Racing Association with a corresponding budget amcndment. COUNCIL ACTION: D Approve D Deny D Table D Continue D No Action BASIC LIFE SUPPORT SERVICES AGREEMENT BETWEEN THE CITY OF BREMERTON AND HANDLERS RACING ASSOCIATION This Agreement is entered into among CITY of BREMERTON, a municipal corporation. hereinafter referred to as "CITY". and HANDLERS RACING ASSOCIATION. a Washington Nonprofit Corporation, and the principals in HANDLERS RACING ASSOCIATION, namely. GORDON HOWELL and BARBARA HOWELL, husband and wife, and ERIK MCCULLOUGH, HANDLERS RACING ASSOCIA nON and the principals therein shall hereinafter be referred to as "ASSOCIA TlON", and shall each be jointly and severally liable for all obligations imposed upon the ASSOCIA nON herein. The ASSOCIA nON has requested the CITY to provide basic life support services at BREMERTON RACEWAY regarding raceway events to be held commencing in April 2007, and concluding in October 2007. The scheduled race dates are set forth as follows: May 5 June 1 J ul y 6 August 17 Sept 21 October 5 May 5 June 2 July 7 August 18 Sept 22 October 6 May 6 June 3 July 8 August 19 Sept 23 October 7 These said dates will hereinafter be referred to simply as "race dates". The CITY, agreed to provide the services hereinafter set forth on the race dates. Now, therefore, in consideration of the foregoing recitals, and the promises and covenants of the parties hereinafter set forth, they agree as follows: 1. Services provided. The CITY, will provide a fire truck together with one firefighter and one Firefighter/EMT. at a minimum, on each race date indicated herein. CITY personnel at each race date event shall be prepared to provide basic life ~()07 BASIC LIFE SUPPORT SERVICES AGREEMENT 1 BETWEEN BREMERTON FIRE DEPARTMENT AND HANDLERS RACING ASSOCIATION support services and be equipped with radio communications to request immediate response of advanced life support services in the event such services are required. The fire truck and firefighters will be prepared to provide immediate fire protection. It is expressly understood the fire protection will be provided in a safe manner according to CITY standard operating procedures. CITY personnel will also have the ability to request additional personnel and resources as required. In no event will the CITY be responsible for costs to replace BLS services. Notwithstanding anything to the contrary, however, if emergency conditions are present in the territorial areas served by the CITY on any race date, which conditions require the services of the equipment and personnel covered by this Agreement, then and in any such event, the services and equipment to be provided by the CITY on any such race date shall be withdrawn. In the event emergency conditions prevent the providing of CITY personnel and equipment, a representative of the CITY shall attempt to notify GORDON HOWELL or BARBARA HOWELL as soon as possible at (360) 674-2280. 2. Service times. On Friday race dates, the services to be provided by the CITY shall commence at 4 p.m. and shall end at approximately 9:00 p.m. The June 22 race event shall begin at 11 a.m. On the race dates falling on Saturdays, the services to be provided by the CITY shall commence at 9:00 a.m. and shall cease at approximately 6:00 p.m. On Sunday race dates, the services to be provided by the CITY shall commence at 9:00 a.m. and end at approximately 7:00 p.m. 3. Compensation. For each race date event on which the CITY provides the ~()07 BASIC LIFE SUPPORT SERVICES AGREEMENT 2 BETWEEN BREMERTON FIRE DEPARTMENT AND HANDLERS R(\CING ASSOCIATION service identified herein. the ASSOCIATION shall compensate the CITY at S 100.00 per hour. Compensation checks will be made payable to "City of Bremertol1. and tendered to the CITY at 911 Park Ave. Bremerton. WA 98337. within 10 days ofreceiving an invoice from the CITY office. PROVIDED, HOWEVER. if the CITY representatives appear at a race event to provide the services called for herein, and if the races are canceled for any reason, or rained out, compensation shall be paid to the CITY at $100.00 per hour, with a minimum of 2 hours. 4. Orientation bv ASSOCIATION. From time to time, the ASSOCIATION shall conduct orientations at Bremerton Raceway at times mutually agreeable to the ASSOCIA TION and CITY, to allow CITY personnel who are new to the facility to familiarize themselves with the different types of racecars and their characteristics, and the services they may be called upon to provide. CITY personnel may inspect and orient themselves to all types of racecars participating in the ASSOCIATION events. 5. Location of CITY personnel and equipment on race dates. On each race date, the ASSOCIATION shall provide a safe area for the CITY's equipment to be located and its personnel to observe the race events. The ASSOCIATION shall also provide to the CITY's personnel and its equipment an immediate response route to access racing equipment and spectators. 6. ASSOCIATION representative. An ASSOCIATION representative shall be designated and available throughout each race day event on which CITY services are provided. to meet with CITY personnel to answer any questions and address any 2007 BASIC LIFE SUPPORT SERVICES AGREEMENT 3 BETWEEN BREMERTON FIRE DEPARTMENT AND HANDLERS RACING ASSOCIATION concerns the CITY personnel may have. The ASSOCIA nON representative designated on each race date shall seek to diligently solve any concerns raised by CITY personnel to the satisfaction of the CITY personnel. 7. Insurance coverage. Prior to the commencement of the CITY's services hereunder, the ASSOCIATION shall deliver to the CITY, for review by the CITY's insurance representative, a copy of the ASSOCIATION's insurance policy covering race day events which policy shall provide acceptable coverage for CITY, together with a policy endorsement naming the City of Bremerton an additional insursed. Prior to commencement of the CITY's services identified herein, the said insurance policy must be reviewed and accepted in writing by the CITY's insurance representative, to its satisfaction. The said insurance policy must also provide that it will not be canceled or altered in any fashion without first providing to the CITY thirty days advance written notice. 8. Hold harmless. The Association shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this Agreement, except for that portion of the injuries and damages judicially determined to have been caused by the City's sole negligence. The provisions of this section shall survIve the expiration or termination of this Agreement. 9. Termination. This Agreement, and the services to be provided by the CITY herein, shall terminate at the conclusion of the last race date event on October 7, 2007. Provided, however, and notwithstanding anything to the contrary herein, either party may terminate this Agreement with 10 days written notice to the other party. All said 2007 BASIC LIFE SUPPORT SERVICES AGREEMENT 4 BETWEEN BREMERTON FIRE DEPARTMENT AND HANDLERS RACING ASSOCIATION termination notices, and other written notices, shall be directed to the parties at the following address: Handlers Racing Association at P.O. Box 396, Bremerton, W A 98337: and to Bremerton Fire Department at 911 Park Ave. Bremerton, WA 98337. 10. Cooperation of the parties. The parties hereto shall strive to cooperate with one another at all times so that the terms and spirit of this Agreement may be fully implemented in a safe and harmonious manner. 11. Complete A2;reement. This Agreement constitutes the full and complete Agreement of the parties and shall supersede any prior verbal or written Agreements and understanding of the parties regarding the matters contained herein. Any changes or amendments hereto shall be in writing and signed by all parties. 12. Le2;al action. In the event legal action becomes necessary to enforce the terms of this Agreement, or regarding the terms of this Agreement, each party is responsible for their own attorney fees. The venue for any such action shall lie in Kitsap County, Washington. 13. Authoritv to si2;n. The individuals signing this document in a representative capacity, hereby warrant and represent that they possess full legal authority to bind their respective organizations to terms hereof. The CITY approved the terms of this Agreement at its CITY Council meeting held on the _ day of April, 2007. 14. Modifications. This agreement may only be modified by written instrument signed by both parties. CITY: Date of signing: April ,2007 CITY OF BREMERTON 2007 BASIC LIFE SUPPORT SERVICES AGREEMENT 5 BETWEEN BREMERTON FIRE DEPARTMENT AND HANDLERS RACING ASSOCIATION By: its: Datc: Approved as to form: Bremerton City Attorney HANDLERS RACING ASSOCIATION: by: GORDON E. HOWELL Prcsident by: BARBARA F. HOWELL Secretary/Treasurer PRINCIPALS IN ASSOCIATION: by: GORDON E. HOWELL Address: 2219 SW Pine Road Port Orchard, W A 98367 Phone no.: (360) 340-4462 by: BARBARA F. HOWELL Address: 2219 SW Pine Road Port Orchard, W A 98367 Phone no.: (360) 340-4463 by: ERIK MCCULLOUGH Address: 760 Snocap Dr. NE Tahuya, W A 98588 Phone no.: (360) 277-0241 2()()7 BASIC LIFE SUPPORT SERVICES AGREEMENT 6 BETWEEN BREMERTON FIRE DEPARTMENT AND HANDLERS RACING ASSOCIATION Attest: City Clerk Date of signing: Date of signing: Date of signing: Date of signing: DATE SUBMITTED: 5/2/07 BILL # 0 7 - (I 7 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 51 ........................................................................................ SUBJECT: Resolution No. 303/ providing for an election on the West Hills Island Annexation during the August 21, 2007 primary election. Committee Meeting Date: 5/09/07 COUNCIL MEETING Date: 5/16/07 Department: DCD Presenter: Andrea Spencer Phone: 473-5283 SUMMARY: On March 21,2007 the City Council passed Ordinance 5002 approving annexation of the "West Hills Island" using an abbreviated procedure to annex unincorporated islands. Annexations by this method are subject to referendum for 45 days after passage if a petition is prepared and signed by qualified electors in number equal to not less than ten percent of the votes cast in the last state general election in the area to be annexed. A valid petition has been filed with the City Council. This resolution provides for an election on the West Hills Island annexation to be held during the August 21, 2007 primary election. ATTACHMENTS: Resolution No. 303/ FISCAL IMPACTS (Include Budgeted Amount): $5,000 to conduct election. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA ~ GENERAL BUSINESS D PUBLIC HEARING D RECOMMENDED MOTION: Move to pass Resolution No. 3031 the West Hills Island Annexation. providing for an election on COUNCIL ACTION: D Approve D Deny D Table D Continue D No Action RESOLUTION NO. ;3Q31 A RESOLUTION of the City Council of the City of Bremerton, Washington, submitting the question to qualified electors of the West Hills Island Annexation Area during the August 21, 2007 State Primary Election, whether the West Hills Island shall be annexed to the City as provided in City Council Ordinance No. 5002. WHEREAS, on March 21,2007 the City Council passed Ordinance 5002 approving annexation of certain lands situated in West Bremerton comprising approximately 171 acres and completely encompassed by City of Bremerton, and commonly referred to as the "West Hills Island", using an abbreviated procedure to mmex unincorporated islands of property per RCW 35.13.182; and WHEREAS, pursuant to RCW 35.13.1821 island annexations are subject to potential referendum for 45 days after passage if a petition is prepared and signed by qualified electors in number equal to not less than ten percent of the votes cast in the last state general election in the area to be annexed; and WHEREAS, a referendum petition, signed by qualified electors equal in number to at least ten percent of the votes cast in the last state general election in the area to be annexed has been filed with the City Council as provided for in RCW 35.13.1821; and WHEREAS, the City Clerk, through the Kitsap County Auditor, on April 11, 2007, verified the sufficiency ofthe signatures thereto; and WHEREAS, the County Auditor requires a Resolution approved by the City Council authorizing the placement of the question on the August state primary election; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The question of whether the West Hills Island area shall be annexed to the City as provided in City Council Ordinance No. 5002 shall be placed on the August 21, 2007 state primary election ballot. SECTION 2. The City Attomey shall draft and forward the appropriate ballot title to the County Auditor. SECTION 3. Severabilitv. If anyone or more sections, subsections, or sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not affect the validity ofthe remaining portion of this Resolution and the same shall remain in full force and effect. 1 West Hills Island Annexation - Election SECTION 4. Effective Date. This Resolution shall take effect and be in force immediately upon its passage. day of PASSED by the City Council of the City of Bremerton, Washington this_ ,2007. WILL MAUPIN, Council President APPROVED AS TO FORM: ATTEST: ROGER A. LUBOVICH, City Attorney P AULA JOHNSTON, City Clerk R:\Legal\Legal\Files\Cllrrent Active Files\Annexation - West I-Iills Island\Ballot Resollltionl.doc 2 West Hills Islaml Annexation - Election DATE SUBMITTED: May 1,2007 BILL # 07-118 S~ AGENDA BILL CITY OF BREMER TON CITY COUNCIL ............................................................................................ SUBJECT: Amendment No. 1 to Professional Services Agreement with GeoEngineers, Inc. for the Bremerton Gasworks Phase II - Environmental Site Assessment Committee Meeting Date: May 9, 2007 COUNCIL MEETING Date: May 16, 2007 Department: Public Works & Utils. Presenter: Dan Miller Phone: 473-2314 SUMMARY: The City entered into an agreement with GeoEngineers, Inc. on December 20, 2006 to assist the City with the preparation of an EP A-Assessment Cooperative Agreement Work Plan, and provide assistance to the City and EP A with the summary of findings relative to the completion of the Phase I - Environmental Site Assessment (ESA). The amount of this initial contract agreement was $20,000.00. The Amendment No 1 before Council increases the contract amount by $115,400 to a not-to-exceed amount of $135,400 to complete this next Phase II - ESA scope of work with an established end date that is consistent with the completion date stated in the EP A Grant. ATTACHMENTS: 1.) Council Summary; 2.) Aerial Photo; 3.) Amendment No.1 to the Professional Services Agreement; and 4.) Exhibits A & B. FISCAL IMPACTS (Include Budgeted Amount): The amount of this amended Professional Services Agreement is increased $115,400 to a not to exceed amount of $135,400. In support of this increase was a 2006 budget adjustment to receive the EP A Grant funds offered to the City in the amount of $200,000. The 2006 carryover budget for Fund 308 "General Government Improvement" supports this amendment. APPROVALS: DEPARTMENT DIRECTO CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR: COUNCIL PRESIDENT: /1 / I I~~ (bu/}<A~ Q..(t:& CONSENT AGENDA ~ GENERAL BUSINESS D PUBLIC HEARING D RECOMMENDED MOTION: Move to approve Amendment No 1 to the existing Professional Services Agreement with GeoEngineers, Inc. and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: 0 Approve 0 Deny D Table o Continue 0 No Action COUNCIL SUMMARY AMENDMENT NO.1 GEOENGINEERS, INC. ASSESSMENT COOPERATIVE AGREEMENT WORK PLAN PHASE II - ENVlROMENTAL SITE ASSESSMENT BREMERTON GASWORKS & MCCONKEY/SESKO PROPERTIES On September 19,2006, the U.S. Environmental Protection Agency (EPA) provided the City of Bremerton (the City) a Phase II - Environmental Site Assessment Grant in the amount of $200,000. On October 18, 2006, City Council approved the acceptance of this Grant while also approving a budget adjustment for the receipt and expenditure of these funds, Fund 308 "General Government Improvement" (AB#06-219). As part of the EPA-Grant is the Assessment Cooperative Agreement Work Plan. The major portion of this Assessment Work Plan, in the amount of $181,500, is Task 3: Site Investigation & Analysis. The Task 3 includes, but not limited to, site characterization activities outlined in the Amendment NO.1 Exhibit A, "Scope" and Exhibit B, "Compensation" that involves the preparation of the Sampling Analysis Plans (SAP), Quality Assurance Project Plan (QAPP), Health and Safety Plan (HSP), installation of direct borings, laboratory analysis, and data evaluation. In order to continue with Task 3 of the Assessment Work Plan the current PSA with GeoEngineers, Inc. requires modification and approval by Council. The request before City Council is the approval to modify this PSA with GeoEngineers, Inc. to include the expanded "Scope" and "Compensation" as outlined in Amendment No.1, Exhibits A and B. Bremerton/GeoEngineers, Inc. - Amendment No. 1 Bremerton Gasworks - Phase II - Environmental Site Assessment 1 of 1 u:: o a ..... ;; ..;- aJ <Xl o ;:::: ;; .... Ol <Xl o 6 <ii 1:5 Notes: .~ 1. The locations 01 all features shown are approximate. ~ 2. This drawing is for information purposes. 1\ is intended to assist in Ii showing features discussed in an attached document. GeoEngineers. Inc. ean not guarantee the accuracy and content 01 electronic files. The master file is stored by GeoEngineers. Inc. and wm serve as the omcial record 01 this communication. 3. It is unlawful to copy or reproduce all or any part thereof. whether for pwsonal use or resale, without permission. N w. s 200 0 200 , , Feet Parcel Map ..c (ij 0.. Old Bremerton Gas Works Site Bremerton, Washington ~ Data Sources: Roads and parcels from Kllsap County. (f) Aerial photo (June 2001) from Space Imaging LLC. ~ TfcSlll>Vt::rSb Mt:/calur, ZcrH~ iQ N NOItll, Norttl Arn~rical'l Onium 1983 6 Norfr, :ifrOVV otienlud 1n gnd north GEoENGINEERS (J _.7A..~~" Draft Figure AMENDMENT NO.1 PROFESSIONAL SERVICES AGREEMENT GeoEngineers, Inc. Phase]] - Environmental Site Assessment The City ofBremerton (City) and GeoEngineers, Inc (Consultant) desire to supplement the Professional Services Agreement executed on December 20, 2006. All provisions in the Agreement remain in effect except as expressly modified in this Amendment No. 1 as follows: Paragraph I, Scope is revised as follows: The first sentence in this paragraph is eliminated and replaced with the following: "The Consultant agrees to perform the services more specifically described in the Scope of Services, Exhibit A, Amendment No.1, which is incorporated by reference herein." Paragraph II, Term is revised as follows: The language "as provided in the work schedule attached herein as Exhibit B" is eliminated and replaced with "by September 30, 2009, consistent with the completion date of the EPA Grant.)> Paragraph III, Compensation is revised as follows: In the first sentence of the paragraph $20,000 is replaced with $135,400 as set forth in Exhibit B, Amendment No. 1. In the entire paragraph replace "Exhibit C" with "Exhibit B, Amendment No. 1.)> In witness whereof, the parties have executed this Amendment and agree to the changes as stated above as of ,2007. GeoEngineers, Inc. City of Bremerton C2.JCQ~ David A. Cook, LG, RBP Principal Cary Bozeman Mayor DEPARTMENTAL APPROVAL (;;#~ Phil Williams, Director Public Works and Utilities APPROVED AS TO FORM Ken Bagwell, Assistant City Attorney Bremerton/GeoEngineers, Inc. - Amendment NO.1 Bremerton Gasworks - Phase II - Environmental Site Assessment 1 of 1 EXIIIBIT A AMENDMENT NO.1 GeoEngineers, Inc. Phase II - Environmental Site Assessment SCOPE OF SERVICES Project Name: Bremerton Gasworks Site - Phase II - Environmental Site Assessment EPA Cooperative Agreement No.: BF-9604651-0 The Scope of Services and/or budget are hereby modified as follows: 1. Preparation of the Remedial Investigation Work Plan, Sampling and Analysis Plan, Quality Assurance Project Plan, & Health and Safety Plan; 2. Interim source area field investigation to include Subcontract Drilling and Laboratory Analysis; and 3. Data evaluation, preparation and transmittal of data summary tables & figures, TBA project scoping meeting. Bremerton/GecEngineers, Inc. - J\mendment NO.1 Bremerton Gasworks - Phase II - Environmental Site Assessment 1 of 1 EXHIBIT B AMENDMENT NO. I GeoEngineers, Inc. Phase n - Environmental Site Assessment COMPENSATION Project Name: Bremerton Gasworks Site - Phase II - Environmental Site Assessment DESCRIPTION BUDGET 1. Preparation of the Remedial Investigation Work Plan, Sampling and Analysis Plan (SAP), Quality Assurance Project Plan (QAPP), and Health & Safety Plan (HSP) ... ............... ....... ... ...... ............ .., ......... ... ...$10,400 2. Interim source area field investigation (includes approximately $50,000 in Subcontract DrillinglLaboratory Analysis) ..................... $85,000 3. Data evaluation, preparation and transmittal of data summary tables & figures, TBA project scoping meeting ............................. .$20,000 Total for Amendment No.I: ......................................................... $115,400 Original Authorized Budget (initial Scoping) ... .. . ... .. . . .. ... ... .. . . .. .,. .. . .. . .. . $20,000 Total (Not-to-Exceed) Amended Budget.......................................... ...$135,400 BremertonfGeoEngineers, Inc. - Amendment NO.1 Bremerton Gasworks - Phase" - Environmental Site Assessment 1 of 1 AGENDA BILL CITY OF BREMERTON CITY COUNCIL BILL#_-D7~ cr DA TE SUBMITTED: 05/02/2007 5k ........................................................................................ SUBJECT: Fats, oils and grease (FOG) Wastewater pretreatment for food service establishments. z:::: 00 q o rcL.V\a..vlce. pJo. J. Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: Phone: May 9th, 2007 May 16th, 2007 PW&U Phil Williams/Earl Varner 473-5755 or 621-4223 SUMMARY: The adoption of this ordinance will create a new chapter 15.05 in the BMC which outlines pretreatment requirements for the discharge of Fats, Oils, and Grease by food establishments into the City's Sanitary collection system. The ordinance is closely patterned after a model ordinance developed by a working group of Cities and counties in the Puget Sound area. ATTACHMENTS: Proposed ordinance ~ o. --5 00 q FISCAL IMPACTS (Include Budgeted Amount): The implementation of this ordinance will not require additional staff or resources. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: ~ c: 4~~ CONSENT AGENDA GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to pass ordinance 5oo~ creating BMC Chapter 15.05 and amending 15.03.210 relating to Fats, Oils, and Grease COUNCIL ACTION: 0 Approve 0 Deny 0 Table 0 Continue 0 No Action Additional Information The discharge of fats, oils and grease from restaurants and commercial users presents a significant maintenance problem in the sanitary sewer collection system which can result in sewage spills, manhole overflows, or sewage backups in homes and businesses. In addition, sanitary sewer overflows pose a public health risk, are illegal and are coming under increased scrutiny by regulatory agencies. It has been determined that one of the major causes of sewer overflows is the accumulation of FOG in the wastewater collection system. This ordinance is designed to aid in the prevention of sanitary sewer blockages and obstructions from contributions and accumulation of animal or vegetable derived FOG discharged to the sanitary sewer system from industrial or commercial establishments, particularly food preparation and serving facilities. It is the desire ofthe Prefog Group which includes the cities of Bremerton, Issaquah, Redmond, Kent, Seattle, Everett and Kitsap, Snohomish and King counties to establish consistent requirements for FOG removal at food service establishments. This ordinance relies on public education to assist restaurants, commercial and institutional users in reducing the quantity of FOG related compounds discharged to the sanitary sewer system. It also allows existing dischargers options for dealing with their particular situation ranging from implementation of Best Management Practices to installation of new equipment. ORDINANCE NO. 500Q AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Section 15.03.210 of the Bremelion Municipal Code and creating a new Chapter, Chapter 15.05 of the Bremerton Municipal Code entitled Fats, Oils and Grease. WHEREAS, the current provisions of the Bremerton Municipal Code do not include provisions relating to the discharge of fat, oil and grease into City's sanitary sewer system; and WHEREAS, the City Council desires to update the Bremerton Municipal Code to provide provisions for capacity, maintenance, operation, education, inspection, and monitoring relating to the discharge of fat, oil and grease into City's sanitary sewer system and further to provide for enforcement of violations of the provisions; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 15.03.210 of the Bremerton Municipal Code entitled "Prohibited Acts" relating to Wastewater is hereby amended to read as follows; 15.03.210 PROHIBITED ACTS. Violations of this section shall be punishable as misdemeanors unless otherwise indicated. (a) Unlawful Tampering. It shall be unlawful for any person, unless duly authorized by the Department, to disturb, interfere with, or damage any wastewater facilities, including pipe, machinery, or tools, or buildings, improvements, or other appurtenances belonging to, connected with, or under the jurisdiction of the Department. (b) Prohibited Discharges. It shall be unlawful for any person to deposit in any manhole, lamphole, flush tank, sewer opening, drain, ditch, or natural water course: (1) Any garbage, rubbish, dead animals, or any substance which will obstruct, or have a tendency to obstruct, the flow of any sewer, drain, ditch, or natural water course. (2) Discharges containing toxic, poisonous, or flammable solids, liquids, or gases in sufficient quantity, either singly or by interaction with other wastes, to injure or interfere with any sewage collection or treatment process, constitute a hazard to humans or animals, create a public nuisance, or create any hazard in the receiving waters of the wastewater treatment plants. (3) Any strong acid waste, strong alkaline waste or other waste with corrosive properties capable of causing damage or hazard to the structures, equipment, or personnel of the City. (4) Any waste that contains more than one hundred parts per million by \vei;ht of fat, oil, or grease. Any waste that: 1 Fats, Oils and Grease i. Contains polar and nonpolar fats, oils and greases in amounts that cause a visible sheen on the discharge or in the public sewer system; ii. Causes a build-up of grease in any public sewer facility; iii. Causes an obstruction of the public sewer system; iv. Found to contain more than one hundred parts per million by weight of fats, oils and grease as measured using analytical procedures established in 40 CFR Part 136; or v. Any discharge that violates Chapter 15.05 BMC entitled "Fats, Oils and Grease. " (5) Overflows from unpolluted water storage facilities. (6) Clear water from refrigeration, reverse-cycle heat pumps, and cooling or air-conditioning equipment installed hereafter, except for the periodic draining and cleaning. (7) Steam exhaust or blow-off, or any heated water until the temperature thereof has been reduced to less than 100 degrees Fahrenheit. (8) Waste containing suspended solids of such character and quantity that unusual attention or expense is required to handle such materials in the sewer system or at the wastewater treatment plant. (9) Any obnoxious or malodorous gas or substance capable of creating a public nuisance. (10) Any septic tank wastes. (11) Any new stormwater discharges. SECTION 2. A new Chapter, Chapter 15.05 of the Bremerton Municipal Code entitled "Fats, Oils and Grease" is hereby created to read as follows: 15.05.010 ADMINISTRATION. The provisions of this Chapter shall be administered by the Director of Public Works and Utilities or his or her designee. 15.05.020 PURPOSE. The purpose of this Chapter is to aid in the prevention of sanitary sewer blockages and obstructions from contributions and accumulation of animal or vegetable derived fats, oil and greases discharged to the sanitary sewer system from industrial or commercial establishments, particularly food preparation and serving facilities. The objectives of this program are to use reasonable and technically feasible controls to: (a) Eliminate sanitary sewer overflows (b) Reduce the amount of fats, oils and grease discharged to the sanitary sewer collection system (c) Reduce maintenance costs for the sanitary sewer collection system (d) Improve operation ofthe sanitary sewer collection system 15.05.030 APPLICABILITY. This Chapter applies to all food processing establishnlents, food sales establishments, food service establishments and any other facility that discharges polar grease to the sanitary sewer collection system and are located within the boundaries of the City of Bremer ton's wastewater collection system on or after the effective date of this Chapter. 2 Fats, Oils and Grease 15.05.040 DEFINITIONS. Best Management Practices (BMP): A technique or methodology that, through experience and research, has proven to reliably lead to a desired result. City: City of Bremerton Facility: Any Food Processing Establishment, Food Sales Establishment, or Food Service Establishments Fats, Oils and Greases: Organic compounds derived from animal and/or plant sources that contain multiple carbon triglyceride molecules. These substances are detectable and measurable using analytical procedures established in Title 40 of the Code of Federal Regulations Part 136 (40 CFR 136). Commonly referred to as Polar. Food: Any raw, cooked, or processed edible substance, ice, or ingredient used or intended for use or sale in whole or in part for consumption. Food Processing Establishment (FPE): A commercial establishment in which food is manufactured or packaged for consumption. Food Sales Establishment (FSE): Retail and wholesale grocery stores, retail seafood stores, food processing plants, bakeries, confectioneries, fruit, nuts and vegetable stores and places of business and similar establishments, mobile or permanent, engaged in the sale of food primarily for consumption off premises. Food Service Establishments (FSE): Any establishment for the preparation and serving of meals, lunches, short orders, sandwiches, frozen desserts, or other edible products and/or are required to have a Food Busines~ Permit issued by Kitsap County Department of Health. The term includes: restaurants, coffee shops, cafeterias, short order cafes, luncheonettes, taverns, lunchrooms, places which manufacture retail sandwiches, soda fountains, institutional cafeterias, catering establishments, food vending vehicles, and operations connected therewith; and similar facilities by whatever name called. Grease: Rendered animal fat, vegetable shortening, and other such oily matter used for the purposes of and resulting from preparing and/or cooking food. Grease Removal Unit: A device designed to separate fats, oils, and grease from liquid waste prior to the wastewater entering the sanitary sewer system. Grease Interceptor: An interceptor of at least 750-gallon capacity whose rated flow exceeds 50 gallons per minute (gpm) to serve one or more fixtures and which is remotely located underground and outside of a food service facility. It is designed to collect, contain or remove food wastes and grease from the waste stream while allowing the balance of the liquid waste ("gray water") to discharge to the wastewater collection system by gravity. 3 Fats, Oils and Grease Grease Trap: A device located inside a food service facility designed to retain grease from one (1) to a maximum of four (4) fixtures whose rated flow is 50 gallons per minute (gpm) or less. It is designed to collect, contain or remove food wastes and grease from the waste stream while allowing the balance of the liquid waste to discharge to the wastewater collection system by gravity or mechanical means. Minimum Design Capability: The design features of a Grease Interceptor and its ability to or the volume required to effectively intercept and retain greases from grease-laden wastewaters discharged to the sanitary sewer system. Non-Polar (mineral origin): Any water or waste which contains more than one hundred parts per million by weight of fat, oil or grease as measured using analytical procedures established in 40 CFR Part 136. Polar (animal and vegetable origin): Any water or waste which has visible fats, oils or grease floating on the surface or adhering to the sides of the sample containers. Rendering/Disposal Company: Any facility that has a grease interceptor shall utilize a licensed rendering and disposal company. Uniform Plumbing Code (UPC): Governs the requirements for the installation, alteration, removal, replacement, repair or construction of all plumbing. User: Any person, who contributes, causes or permits the contribution of wastewater into the City of Bremerton sanitary sewer system. 15.05.050 GREASE INTERCEPTOR REQUIREMENT. (a) Fats, Oils and Grease Control Program. All facilities are required to submit a Fats, Oils and Grease Control Program. The goal of the program is to implement reasonable and technically feasible controls of free- floating fat, oil and grease. The basic components of the program should include: (1) A written program articulating management and corporate support for the plan and a commitment to implement planned activities and achieve established goals through the implementation and enforcement of Best Management Practices. (2) A description of the facility type and a summary of the products made and/or service provided. (3) A description of current reduction, recycling and treatment activities. (4) Schematics of the process areas illustrating drains and discharge points connected to the sanitary sewer. (5) Specific perfonnance goals and implementation schedule. (6) Initial training for new employees and refresher training every six (6) months. (b) New Facilities - On or after the effective date of this Chapter, Food Processing Establishments, Food Sales Establishments, or Food Service Establishments which are newly proposed or constructed, shall be required to install, operate and maintain an approved type and 4 Fats, Oils and Grease adequately sized grease interceptor necessary to maintain compliance with requirements as described in the Standards for Interceptor/Grease Trap of this Chapter. (c) Existing Facilities with Grease Removal- On or after the effective date of this Chapter, existing Food Processing Establishments, Food Sales Establishments, or Food Service Establishments shall be pern1itted to operate and maintain existing grease interceptors or grease traps provided that the equipment is in efficient operating condition. All such establishments are required to develop and implement Best Management Practices (BMP's) to reduce the quantity of fats, oil and grease discharged to the sanitary sewer collection system. Any facilities that are known to cause grease related cleaning activities in the sanitary sewer, a grease related sanitary sewer overflow or fail to implemenfand enforce BMP's will be required to install a properly sized and functioning grease interceptor designed to meet the City's grease control requirements as described in the Standards for Interceptor/Grease Trap of this Chapter (Polar and nonpolar fats, oils and greases in amounts that cause a visible sheen on the discharge or in the public sewer system, a build-up of grease in any public sewer facility, which accumulations, either alone or in combination with other discharges, cause an obstruction of the public sewer system or any water or waste which contains more than one hundred parts per million by weight of fats, oils and grease as measured using analytical procedures established in 40 CFR Part 136.) Installation must be completed within ninety (90) calendar days from notification by the City or as otherwise specified by other governing agencies. (d) Existing Facilities without Grease Removal- Any Food Processing Establishments, Food Sales Establishments, or Food Service Establishments that expand by 25% their seating capacity for food service shall be required to install, operate and maintain an approved type and adequately sized grease interceptor necessary to maintain compliance with requirements as described in the Standards for Interceptor/Grease Trap of this Chapter. (e) Existing Facilities with/without Grease Removal- Establishments that: (1) Expand by 25% their seating capacity for food service, or (2) Renovate or remodel with a valuation greater than or equal to 25% of the building's assessed value using the current year as recorded by the Kitsap County Assessor's office (accumulative during any 60 month period) or, (3) Are known to cause grease related cleaning activities in the sanitary sewer, or (4) Contributed to a grease related sanitary sewer overflow, or (5) Fail to implement and enforce BMP's will be required to install a properly sized and functioning grease interceptor designed to meet the City's grease control requirements as described in the Standards for Interceptor/Grease Trap of this Chapter (Polar and nonpolar fats, oils and greases in amounts that cause a visible sheen on the discharge or in the public sewer system, a build-up of grease in any public sewer facility, which accumulations, either alone or in combination with other discharges, cause an obstruction of the public sewer system or any water or waste which contains more than one hundred parts per million by weight of fats, oils and grease as measured using analytical procedures established in 40 CFR Part 136.) Installation must be completed within ninety (90) Calendar days from notification by the City or as otherwise specified by other governing agencies. (f) Variance from Grease Interceptor Requirements. Grease interceptors required under this Chapter shall be installed unless the City authorizes the installation of a grease trap or other alternative pretreatment technology after determining that the installation of a grease interceptor would not be feasible due to space constraints or other considerations. The facility 5 Fats, Oils and Grease bears the burden of demonstrating that the installation of a grease interceptor is not feasible and that the variance will not cause the facility any problems in meeting the requirements as described in the Standards for Interceptor/Grease Trap of this Chapter (Polar and nonpolar fats, oils and greases in amounts that cause a visible sheen on the discharge or in the public sewer system, a build-up of grease in any public sewer facility, which accumulations, either alone or in combination with other discharges, cause an obstruction of the public sewer system or any water or waste which contains more than one hundred parts per million by weight of fats, oils and grease as measured using analytical procedures established in 40 CFR Part 136.) The request for an alternate grease removal device or grease trap shall contain the following information. (1) Detailed explanation of the reason(s) that the installation of a grease interceptor isn't feasible. (2) Location of the sanitary sewer main in relation to available exterior space outside the building. Alternative pretreatment technology includes, but is not limited to, devices that are used to trap, separate, and hold grease from wastewater and prevent it from being discharged into the sanitary sewer collection system. Any alternative technology must result in a discharge that meets the requirements as described: (Polar and nonpolar fats, oils and greases in amounts that cause a visible sheen on the discharge or in the public sewer system, a build-up of grease in any public sewer facility, which accumulations either alone or in combination with other discharges cause obstruction of the public sewer system or any water or waste which contains more than one hundred parts per million by weight of fats, oils and grease as measured using analytical procedures established in 40 CFR Part 136.). The City, prior to installation must approve any alternative pretreatment technology. 15.05.060 STANDARDS. (a) Grease Interceptor (1) Each facility is solely responsible for the cost of the grease interceptor installation, inspection, cleaning and maintenance. (2) Grease interceptor sizing and installation shall conform to the requirements contained in the current edition of the Uniform Plumbing Code (UPC) or other criteria as determined on a case by case basis based on review of relevant information, including, but not limited to grease interceptor performance, waste stream characteristics, facility location, maintenance needs, and or inspection needs. The aforementioned determinations mayor may not conform to the Uniform Plumbing Code construction standards or sizing criteria for grease interceptors or similar devices. The minimum capacity of any exterior grease interceptor will be 1500 gallons unless approved by the Director of Public Works. Supporting sizing calculations shall be submitted to the City.) (3) Grease interceptors shall be designed using standard engineering principles for sedimentation and flotation in gravity separators. The grease interceptor will have a minimum of two (2) compartments with fittings designed for grease retention. (4) Grease interceptors shall be installed in accordance with City Standard details. (5) Grease interceptors shall be installed at a location where it is easily accessible for sample collection, inspection, and cleaning and removal of retained grease. The grease interceptor may not be installed in any part of the building, unless pre-approved, and the location must meet the approval of the City. 6 Fats, Oils and Grease (6) Grease interceptors shall be located in the food service establishment's lateral line between all fixtures which may introduce grease into the sanitary sewer and the connection to the sanitary sewer collection system. Such fixtures shall include but not be limited to sinks, dishwashers, floor drains for food preparation and storage areas, mop sinks, and any other fixture which is detennined to be a potential source of grease. (7) Grease interceptors must be vented. (8) Flushing the grease interceptor with water having a temperature in excess of 140 degrees Fahrenheit is prohibited. (Max Temp for affect on concrete). (9) Grease interceptors shall be equipped with a sampling port at the outlet of the interceptor. Inspection tees and manholes must enable the utility to monitor and test the discharge for compliance with utility requirements or to allow monitoring and testing in accordance with the rules and regulations of other federal, state or local agency having governmental or contractual jurisdiction within the utility service area. (10) Access manholes, with a minimum diameter of24 inches, shall be provided over each chamber and sanitary tee. The access manholes shall extend at least to finished grade and be designed to prevent water inflow or infiltration. The manholes shall also have readily removable covers to facilitate inspection, cleaning and removal of retained grease and sample collection. Riser maximum will not exceed 24 inches. (11) Grease interceptors shall be considered out of compliance if the total volume of grease and solids displaces more than 25% of the effective volume of the final chamber of the interceptor. Grease interceptors must be serviced and emptied of accumulated waste content as required maintaining a minimum design capability or effective volume, but not less than once every ninety (90) calendar days. If a facility determines that cleaning every 90 calendar days is unnecessary in order to remain in compliance with requirements, the facility may make a written application for a variance from the cleaning schedule. (12) Sanitary wastes (restroom wastes) cannot be introduced into the grease interceptor. (13) Any facility that has a grease interceptor shall maintain a pumping contract with a licensed grease pumping company. The pumping company will pump the interceptor on a regular schedule without notification from the food service. The pumping company will notify the City if the contract is canceled by either party. (14) Wastes removed from a grease interceptor shall be disposed of at a facility permitted to receive such waste. Neither grease, solids nor liquids removed from grease interceptors shall be returned to any grease interceptor, private sanitary sewer line, any portion of the sanitary sewer collection system or any portion of the storm water system. (15) All facilities shall maintain a written record of inspection and maintenance activities and the rendering/disposal company manifest for a minimum of three (3) years. All such records shall be submitted to the City and made available for on-site inspection during all operating hours. (b) Grease Trap. Each facility is solely responsible for the cost of the grease trap installation, inspection, cleaning and maintenance. (1) Grease trap sizing and installation shall confoffil to the requirements contained in the current edition of the Uniform Plumbing Code or other criteria as determined on a case by case basis based on review or relevant infoffilation, including, but not limited to grease trap perfoffilance, waste stream characteristics, facility location, maintenance needs, and or 7 Fats, Oils and Grease inspection needs. The aforementioned detenninations mayor may not confonn to the Uniform Plumbing Code construction standards or sizing criteria for grease traps or similar devices. (2) Grease traps shall be designed using standard engineering principles for sedimentation and flotation in gravity separators. (3) Grease traps shall be installed in accordance with City Standard details, (4) Grease traps shall be installed at a location where it is easily accessible for sample collection, inspection, and cleaning and removal of retained grease. (5) Grease traps shall be located in the food service establishment's lateral line between all fixtures which may introduce grease into the sanitary sewer and the connection to the sanitary sewer collection system. Such fixtures shall include sinks, drains and other fixtures for food preparation and storage areas, and any other fixture which is determined to be a potential source of grease. Fixtures such as waste disposal units and dishwashers shall not be connected to the grease trap. (6) Flushing the grease trap with water having a temperature in excess of 140 degrees Fahrenheit is prohibited. (7) Grease traps shall be equipped with a device to control the rate of flow through the unit. The rate of flow shall not exceed the manufacturers rated capacity recommended in gallons per minute for the unit. (8) Grease traps shall be considered out of compliance ifthe total volume of grease and solids displaces more than 25% of the effective volume of the chamber. The facility and inspector will determine and document the mutually agreed upon maintenance schedule and complete debris removal frequency. (9) Sanitary wastes (restroom wastes) cannot be introduced into the grease trap. (10) Neither grease, solids nor liquids removed from grease traps shall be returned to any grease trap, private sanitary sewer line, any portion ofthe sanitary sewer collection system or any portion of the storm water system. (11) All facilities shall maintain a written record of inspection and maintenance activities for a minimum of three (3) years. All such records shall be made available for on-site inspection by representatives of the City during all operating hours. 15.05.070 ENZYMES, BACTERIA & OTHER AGENTS. The direct addition into the building plumbing, grease trap or interceptor of enzymes, chemicals or other agents designed to emulsify the grease compounds is prohibited. Grease trap or interceptor design and sizing criteria are based on gravimetric separation for grease and solids removal. The addition of enzymes or chemical emulsion agents would impede the gravimetric separation and defeats the purpose of the grease trap or interceptor. Any attempt to modify the trap or interceptor into a biological reactor by adding bacterial or microbial agents is also prohibited. 15.05.080 INSPECTION, MONITORING and REPORTING. (a) The City shall inspect Food Processing Establishment, Food Sales Establishment, or Food Service Establishment on both a scheduled and unscheduled, unannounced basis to detennine whether the requirements set forth in this document are being met. (b) Food Processing Establishments, Food Sales Establishments, or Food Service Establishments shall allow City officials and other duly authorized employees or agents of the 8 Fats, Oils and Grease City bearing proper credentials and identifications access at all reasonable times or during normal hours of operation to all parts of the premises for the purpose of inspection, observation, records examination, measurement, sampling and testing in accordance with the provisions of this Chapter. The City shall have the right to set up on any User's property devices necessary for conducting wastewater sampling inspection, compliance monitoring and/or metering operations. All costs for laboratory collection and analysis shall be the responsibility of the Food Processing Establishments, Food Sales Establishments, or Food Service Establishments. (c) Each Food Processing Establishments, Food Sales Establishments, or Food Service Establishments shall retain maintenance records with the following infonnation for each grease removal device located on the premises. The records shall be kept a minimum of three (3) years and provided to the city upon request. (1) Date of service (2) Volume pumped (gallons) (3) Name of waste hauler (4 ) Waste disposal location 15.05.090 VIOLATION - PENALTY (a) Any violation of any provision of this title constitutes a civil violation under Chapter 1.04 BMC for which a monetary penalty may be assessed and abatement may be required as provided therein. (b) In addition to, or as an alternative to, any other penalty provided in this chapter or by law, any person who violates any provision of this title shall be guilty of a misdemeanor pursuant to BMC 1.12.020(2). SECTION 3. Severabilitv. If anyone or more sections, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 4. 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. PASSED by the City Council the day of ,2007 WILL MAUPIN, Council President Approved this day of ,2007 CAR Y BOZEMAN, Mayor 9 Fats, Oils and Grease ATTEST: APPROVED AS TO FORM: PAULA JOHNSTON, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the EFFECTIVE the ORDINANCE NO. day of day of ,2007 ,2007 R:\Legal\LegaI\Ordinances\Public Works & Utilities\Fat Oil & Grease-clean.doc 10 Fats, Oils and Grease KFC lateral obstructed with grease This grease interceptor has not been serviced and is overtlowing into the storm water calch basin. DATE SUBMITTED: BILL # 0 7 - I d.-p AGENDA BILL CITY OF BREMERTON CITY COUNCIL 5L ........................................................................................ SUBJECT: Grant Agreement with Washington State Dept. of Ecology to develop Blueberry Park and budget adjustment of $195, 170 Committee Meeting Date: May 9,2007 COUNCIL MEETING Date: May 16,2007 Depmiment: Parks and Recreation Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: The Department of Ecology (DOE) has awarded Bremerton a $195,170 grant to construct neighborhood park improvements to Blueberry Park using Low Impact Development techniques. This item authorizes the Mayor to execute the grant agreement with DOE and to make a budget adjustment for the amount of the grant. ATTACHMENTS: Grant agreement between the Washington State Dept. of Ecology and the City of Bremerton. FISCAL IMPACTS (Include Budgeted Amount): The grant is an unbudgeted item for 2007 and will require an amendment to the adopted budget to proceed. Project expenditures will be reimbursed by the Department of Ecology. A total budget amendment to the Parks Facility Construction Fund for additional revenues and expenditures of $195, 170 is needed. Once completed, the Maintenance and Operation of the park improvements is estimated at $8,000 per year. APPROVALS: DEP ARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: 4.4~ e~~ ~ CONSENT AGENDA . GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve Blueberry Park development grant agreement with the Washington State Department of Ecology and amend the 2007 budget for expenditures and revenues of $195,170 accordingly, and authorize the Mayor to execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action LOW IMPACT DEVELOPMENT STORMWATER GRANT AGREEMENT BETWEEN THE STATE OF \VASHINGTON DEPARTMENT OF ECOLOGY AND CITY OF BREMERTON PARKS & RECREATION DEPARTMENT THIS is a binding agreement between the state of Washington Department of Ecology [DEPARTMENT] and the City of Bremerton, Parks and Recreation Department [RECIPIENT). The purpose of this agreement is to provide funds to the RECIPIENT to carry out the requirements described herein. PART I. GENERAL INFORMATION Project Title: Bremerton Blueberry Park & Urban Gardens Project Grant Number: RECIPIENT Name: Mailing Address: G0700254 City of Bremerton Parks & Recreation Department 680 Lebo Blvd. Bremerton, W A 98310 Tom Cressman (360) 473-5309 (360)-473-5882 tom.cressman@ci.bremerton.wa.us RECIPIENT Contact: Telephone Number: Fax Number: E-Mail Address: RECIPIENT Billing Contact: RECIPIENT Federal ID Number: DEPARTMENT Project Manager: Mailing Address: SAME AS ABOVE 91-6001231 Telephone Number: Fax Number: E-Mail Address: Anne Dettelbach Northwest Regional Office 3190 160th Avenue SE BelIevue, W A 98008 (360) 473-5309 360-473-5882 adet461 (tV,ecv. wa.e:ov DEPARTMENT Financial Manager: Mailing Address: Telephone Number: Fax Number: E-Mail Address: Emily Morris Water Quality Program Washington State Department of Ecology PO Box 47600, Olympia, W A 98504-7600 360-407-6703 360-407-7151 emar461 (tV,ecv. wa.e:ov DEPARTMENT Funding Source: State Toxics Account Total Cost: Total Eligible Cost: $ 400,000 $195,170 DEP ARTMENT Share: $ 195,170 100 percent DEP ARTMENT Maximum Percentage: *Localmatching contribution not required. The effective date of this grant agreement is February 15, 2007, according to a prior authorization letter issued by the DEPARTMENT for this grant and which is incorporated by reference. Any work performed prior to the effective date of this agreement will be at the sole expense and risk of the RECIPIENT. Eligible costs incurred during the prior authorization period cannot exceed a total of $8,000. Costs exceeding this amount will also be at the sole expense and risk of the RECIPIENT. This agreement shall expire no later than March 31, 2011. PART II. POST PROJECT ASSESSMENT A. The RECIPIENT agrees to submit a brief survey regarding the key project results or water quality project outcomes and the status of eventual environmental results or goals from the project. The DEPARTMENT's Performance Measures Lead will e-mail the RECIPIENT the Post Project Assessment Survey approximately sixty (60) days prior to the Post Project Assessment Date. An example of the Post Project Assessment Survey is included as Attachment 1. This form is to be completed by the RECIPIENT and sent as an e-mail attachment to the DEPARTMENT's Project Manager and the DEPARTMENT's Water Quality Program Performance Measures Lead. The DEPARTMENT may conduct on-site interviews and inspections, and may otherwise evaluate the Project. The DEPARTMENT will enter the information provided into its performance measures database to be provided to the Washington State Legislature, United States Environmental Protection Agency, and other natural resource agencies. The Performance Measures Lead will be available as needed during negotiations, throughout the project, and in the post project assessment period as a resource. Post Project Assessment Date: March 31, 2012. B. Water Quality Goal(s): (Water Quality Goals are tangible environmental changesfor the better, to be achieved or directly addressed by the proposed project.) New development - the RECIPIENT will minimize changes to the natural hydrology and provide water quality protection through the reduction of storm water runoff and combined sewer overflows discharging into 303 (d) -listed waters, including Sinclair, Dyes Inlet, and Port Washington Narrows. Page 2 of 12 C. Water Quality Project Outcomes: (Water Quali(y Project Outcomes are quantitative results realistically anticipated.fi'om the project that will directly lead to the Water Quality Goals.) 1. Reduce stonmvater runoff by 70% through use of pervious trail system, parking areas, and sidewalks as compared to impervious products. 2. Reduce stonnwater runoff by 20-30% by using compost amended soils and vegetation. 3. Reduce stormwater from entering combined sewer overflows by 30%. 4. Roof systems will reproduce open-space runoff characteristics for rainfall events up to 3.5 inches. Little or no immediate runoff occurs for rainfall events delivering up to 0.5 inches. For these events, approximately 54% reduction in annual runoff volume. 5. Train teachers and teach approximately 700 4th grade students. 6. Educate 250 builders, 4 legislators, 100' s of industry professionals, 200+ City staff, 40 local government officials, at least1400 parents, and 100's of community members about LID techniques. PART III. PROJECT DESCRIPTION The RECIPIENT will use low impact development (LID) practices in the development of Blueberry Park along walkways and trails where the LID uses can be explained with interpretive signs combined with outreach education efforts. The project will teach appropriate LID techniques and develop partnerships that will have far-reaching effects throughout the entire regIOn. Interpretive signs along a meandering pedestrian pathway, constructed of pervious pavement, will describe the function and ecological benefits of using pervious pavement in trails and parking lots and establishing rain gardens, vertical gardens, and green roofs. Blueberry Park has served as a central gathering place for the community and has an important role in conveying environmental values to both nearby elementary school students and the surrounding neighborhood. Outreach and education activities on LID will engage city staff, developers, industry professionals, builders, neighbors, visitors, community groups, and adjacent Armin-Jahr Elementary School. Page 3 of 12 PART IV. PROJECT BUDGET Bremerton Blueberry Park & Urban Gardens Project TOTAL TOTAL ELEMENTS PROJECT ELIGIBLE COST COST (TEC) Task 1 - Project Management $ 20,200 $ 20,200 Task 2 - Public Outreach & Education $ 8,700 $ 8,700 Task 3 - Monitoring $ 15,270 $ 15,270 Task 4 - Architectural & Engineering $ 25,000 $ 25,000 Task 5 - Permeable Pavement LID Implementation $ 71 ,222 $ 71,222 Task 6 - Vegetative Bioretention LID Implementation $ 54,778 $ 54,778 Task 7 - Non-LID eligible items: Restroom Facility, Picnic $ 204,830 $ 0 Tables & Benches, Playground, Bike Rack, Compost Bins, Conifer Trees in Successional Forest, Landscape Plants, Groundcover, Turf in Open Meadow Area Total $ 400,000 $ 195,170* *The DEPARTMENT's Fiscal Office will track to the Total Eligible Project Cost. Payment Request Submittals. RECIPIENT must submit payment request at least quarterly, but no more often than monthly, unless allowed by the DEPARTMENT's Financial Manager. The DEP ARTMENT's Financial Manager may require the RECIPIENT to submit regular payment requests to ensure efficient and timely use of funds Payment Schedule. Payments will be made on a cost-reimbursable basis. PART V. SCOPE OF WORK The RECIPIENT shall ensure that this project is completed according to the details of this agreement. The RECIPIENT may elect to use its own forces or it may contract for professional services necessary to perform and complete project related work. The RECIPIENT certifies by signing this agreement that all applicable requirements have been satisfied in the procurement of any professional services. Eligible and ineligible project costs are separate and identifiable for billing purposes. The RECIPIENT shall submit a copy of the final negotiated agreement(s) to the DEP ARTMENT's Financial Manager. The RECIPIENT further certifies by signing this agreement that if interlocal costs are allowed, all negotiated interlocal agreements necessary for the project are or will be consistent with the tenns of this grant agreement, the DEPARTMENT's current edition of Administrative Requirements for Ecology Grants and Loans (see Attachment 2 for applicable document reference) and Chapter 39.34 RCW Interlocal Cooperation Act. The RECIPIENT shall submit a Page 4 of 12 copy of each interlocal agreement necessary for this project to the DEP AR TMENT' s Financial Manager. Task 1 - Proicct Administration/lVlanagcmcnt A. The RECIPIENT shall administer the project. Responsibilities shall include, but not be limited to: maintenance of project records; submittal of payment vouchers, fiscal forms, and progress reports; compliance with applicable procurement, contracting, and interlocal agreement requirements; attainment of all required permits, licenses, easements, or property rights necessary for the project; and submittal of required performance items. B. The RECIPIENT shall manage the project. Efforts shall include conducting, coordinating, and scheduling project activities and assuring quality control. Every effort will be made to maintain effective communication with the RECIPIENT's designees, the DEP ARTMENT, all affected local, state, or federal jurisdictions, and/or any interested individuals or groups. The RECIPIENT shall carry out this project in accordance with any completion dates outlined in this agreement. C. The RECIPIENT shall submit all invoice voucher submittals and supportive documentation to the DEPARTMENT's Financial Manager. Invoice voucher submittals shall include a State of Washington Invoice Voucher Form AI9-1A, Cash-Interlocal Form B2 (ECY 060-7] Form C2 (ECY 060-9), Form D (ECY 060-11), Form G (ECY 060-14), Form E (ECY 060-12), Form F (ECY 060-13), Form H (F-21), and Form I (ECY 060-15) must be completed where eligible costs have been incurred. Copies of all applicable forms shall be included with an original AI9-1A, and shall be submitted to the DEP ARTMENT. Blank forms are found in Administrative Requirements for Ecology Grants and Loans (see Attachment 2 for applicable document reference). D. The RECIPIENT shall submit to the DEPARTMENT's Project Manager the following documents and in the quantities identified: · Draft project completion reports - one hard and electronic copy · Final project completion reports - 5 copies · Electronic copy of final project completion report The RECIPIENT shall submit two copies of any document(s) which require D EP AR TMENT approval. Once approval is given, one copy will be returned to the RECIPIENT. If the RECIPIENT needs more than one approved copy, the number of submittals should be adjusted accordingly. E. Required Performance: 1. Effective administration and management of this grant project. 2. Maintain of all project records. 3. Submit all required performance items, progress reports, financial vouchers, and maintenance of all project records. 4. Submit final report to Ecology. Page 5 of 12 Task 2 - Public Outreach & Education A. Design, purchase, and install 2 interpretive signs to highlight and educate visitors about LID implementation on the site. Signs will likely be located at green root/vertical gardens and at rain gardens/pervious paved trails. B. Conduct and coordinate workshops, education program materials, plans with schools, community groups, and Kitsap Homebuilders Foundation (KHBF) LID educational portion of their Ecology grant project. C. Create and maintain a Web page within the RECIPIENT's Web site with links about LID tec1miques and to the KHBF LID Implementation website (www.kitsaplid.org). D. Establish training protocols and participation standards for citizen involvement in LID implementation and long-term maintenance of installed plantings. E. Publish 2 fact sheets; one halfway through the project, and the other after completion of the project. Publish four articles/media announcements in the Kitsap Business Journal and one in the West Sound Home & Garden magazine on LID and results of this demonstration project. F. Hold two project meetings to discuss designs and construction plans. G. Hold at least four workshops for public, industry, and government folks: 1. Two involving construction of green roofs/vertical gardens and rain gardens. 2. One on installation and maintenance of pervious pavement. 3. One involving public groups, students, and individuals on the benefits of LID features within the park. H. Conduct at least three tours (separate from workshops above) of the site for city officials, staff, local government and policy-makers, legislators, developers, builders, and other interested persons. I. Work with Armin-Jahr Elementary School to develop environmental curriculum centered on LID and ecosystem elements in and around the park. Train teachers and teach approximately 700 4th graders through on-site interactive events. J. The RECIPIENT shall provide the DEPARTMENT with two copies of any tangible educational products developed under this grant, such as brochures, manuals, pamphlets, videos, audio tapes, CDs, curriculum, posters, media announcements or gadgets, such as a refrigerator magnet with a message. The RECIPIENT shall also supply the DEP ARTMENT with the names and contact information oflocal project leads, and a computer file copy of an education product either on floppy disks or CD-ROM. If this is impractical, as in the case of a sign, display, wcbsite, workshop, or educational program, the RECIPIENT shall provide a complete description including photographs or printouts. This includes tcchnical assistance tools if they arc disscminated to a group. K. Required performance: 1. Design and create educational interpretive signs. Page 6 of 12 2. Develop training and educational program materials. 3. Develop & maintain Web site within the RECIPIENT's Web site with links to LID resources. 4. Publish 2 fact sheets and 6 articles. 5. Conduct two public meetings with staff, garden groups, and community members. 6. Hold 4 workshops and 3 tours for public, industry, and government people. 7. Develop elementary school educational program. Task 3 - Monitoring & Performance Evaluation A. Conduct monitoring and evaluation designed to measure the performance of LID practices on site in accordance the Quality Assurance Project Plan (QAPP). The RECIPIENT will monitor for 3-years. B. Capture infiltration activity using photographic records during rainstorm events. The RECIPIENT will also test and tract infiltration times over 3 years. C. Implement and identify monitoring requirements, locations, and adaptive management methods that will be used during and after construction. , E. Prior to initiating water quality monitoring activities, the RECIPIENT shall prepare a QAPP in accordance with the DEP ARTMENT's Guidelines for Preparing Quality Assurance Project Plans for Environmental Studies (see Attachment 2 for applicable document reference). The RECIPIENT may also reference Technical Guidance for Assessing the Quality of Aquatic Environments, February 1994 (Ecology Publication No. 91-78, available on the DEPARTMENT's Publications website at http://www.ecy.wa.govlbiblio/9178.html), in developing the QAPP. The QAPP shall include detailed information on the water quality monitoring approach and laboratory protocols, including types of data and samples to be collected, sample location, sampling frequency, sampling procedures, analytical methods, quality control procedures, data handling protocols, and data assessment procedures. Any discussion of the monitoring approach must also include an explanation of how the project will yield sufficient information to achieve the purpose and intent of monitoring. A discussion of data accuracy and statistical requirements will be included. The QAPP shall be submitted to the DEPARTMENT for review, comment, and approval PRIOR to commencing environmental monitoring activities. Water samples requiring bench testing shall be analyzed by an environmental laboratory accredited by the DEPARTMENT. A list ofDEP ARTMENT accredited laboratories and information on laboratory accreditation is provided on the Environmental Assessment Program website, currently available at: http://www .ecy. wa. gov /programs/ cap/labs/labs main.html All monitoring data collected or acquired under this agreement shall be managed in order to be available to secondary users and meet a 10 year rule. The ten-year rule means that data documentation is sufficient to allow an individual not directly familiar with the Page 7 of 12 specific monitoring effort to understand the purpose of the data set, methods used, results obtained, and quality assurance measures taken, ten years after the data are collected. To assist in this effoli, the D EP AR TMENT has created a database and data fonnat for environmental data. The RECIPIENT shall submit all monitoring data to the DEPARTMENT consistent with the DEPARTMENT. The RECIPIENT shall submit all data which are ElM compatible via an Environmental Infonnation Management System (ElM) import module. Contact the ElM Data Coordinator, at eim data coordinator@ecv.wa.gov, for assistance in identifying which data are ElM acceptable. Data shall be submitted by following instructions on the ElM website, currently available at: http://www.ecv.wa.gov/eim The data submittal portion of the ElM website provides information and help on formats and requirements for submitting tabular data. Specific questions about data submittal can be directed to the ElM Data Coordinator, currently available at: eim data coordinator@ecy.wa.gov If the RECIPIENT chooses to use Geographic Information System (GIS) data, the DEPARTMENT encourages that its data standards be followed. The DEPARTMENT's Guidelines for Creating! Accessing GIS Data under Ecology Grant and Loan Programs are currently available at: http://www.ecv.wa.gov/services/gis/data/standards.htm F. Required Performance: 1. Prepare a QAPP and submit to the DEPARTMENT for review and approval prior to monitoring. 2. Monitor the site in accordance with approved QAPP through the length of the project. 3. Develop post-project monitoring plan with modified frequency and adequate measures paid by the RECIPIENT and conducted in-house. 4. Submit monitoring data to the DEPARTMENT consistent with ElM format. Task 4 - Architectural & Ene:ineerine: A. Select design and engineering consultants, evaluate bids, and develop contracts. B. Complete final designs of permeable paved trails and parking, green roofs, vertical gardens, rain gardens, and other LID features within the park development. C. Comply with design standards laid out in the Low Impact Development Technical Guidance Manual For Puget Sound & 2005 Stormwater Management Manual for Western Washington: Volume I - V (soon to be adopted in whole or in part by the RECIPIENT) and conform to the manual for this project. D. Implement plans and develop schedule for construction. The RECIPIENT will acquire all pennits. E. Required Performance: Page 8 of 12 1. Send final designs to the DEPARTMENT. 2. Send final contracts to the DEPARTMENT's Financial Manager. Task 5 - Permeable Paving LID Implementation A. Prepare bid documents and award construction contract. B. Construct trails, parking lot, and sidewalk with pervious pavement conCUlTent with on- site workshops through project partners involved in the KHBF's LID (Puget Sound Action Team PIE Grant) implementation project. C. Required Performance: I. Send contracts to the DEPARTMENT's Financial Manager. 2. Complete construction by May 30, 2008. 3. Install a 2,500 feet x 8 feet sidewalk & trail, and approximately 0.25 acres of parking lot. Task 6 - Vel!etative LID Implementation A. Prepare bid documents and award construction contract. B. Construct two rain gardens adjacent to the forested section near each end of the property's border. The design redirects stormwater draining from the 7-acre site to the rain garden, or bioretention cell, capturing runoff and removing oil, heavy metals, nutrients, and sediment. The two (600 sq.ft each) rain gardens treat runoff from the site, and the native plant vegetation installed along the south properties border slows and treats stormwater. C. Construct 20 feet x 30 feet green roof near parking and entrance with a roof garden as a demonstration/education tool with interpretive elements and high visibility. Construction will include the membrane, all of the materials above the membrane; the geotextiles, edging, growth medium, plants, and irrigation for a 3 to 4 inch depth of growth medium and an average saturated weight of 20 per square feet dead load. The RECIPIENT's staff, homeowners, and builders will get hands-on experience with green roof design and installation during one of the workshops. D. The RECIPIENT will construct a vertical garden that allows plants to grow sideways, perpendicular to the ground; in a compartmentalized structure built to connect to load- bearing walls along three sides of the concrete restroom. For watering, the vertical garden is soaked from the top and helps filter rainwater that flows across its surface and doesn't dry out as fast because there's less exposure to the air. Soil is covered with plastic to hold it in place, and then covered with mesh and a wood structure. A drip irrigation system at the top of the wall delivers rainwater and a continuous flow of diluted fertilizer solution containing a complete complement of macronutrients. A gutter at the foot of the wall collects the overflow and diverters used to water plants. A vertical garden requires little maintenance except to prevent weeds and replace dying plants. 1. Because vertical gardens are not, at this time, considered a standard LID technique; the vertical garden component is considered a demonstration portion of the project. Page 9 of 12 Therefore, the RECIPIENT's monitoring program must include a quantitative assessment of its hydrologic benefits, and the RECIPIENT must report on these benefits on a at least a quarterly basis. Eft1uent must not be discharged from the site until it is shown to be an adequate pollutant removal technique. As this is not a proven LID technique, vertical gardens may not be considered eligible in the future, pending the evaluation of reports prepared by the RECIPIENT and other information by the DEPARTMENT. Required Performance: 1. Send contracts to the DEPARTMENT's Financial Manager 2. Complete project by May 30, 2008. 3. Install approximately 1200 feet of rain gardens, 600 square feet of roof garden, 370 sq ft of vertical gardens. 4. Ensure that rain gardens, green roofs, vertical gardens & native plants are maintained for a period of at least 5 years to ensure adequate survival. PART VI. SPECIAL TERMS AND CONDITIONS A. Commencement of Work. The Department reserves the right to terminate this agreement if the RECIPIENT does not commence work on the project funded herein within four (4) months of the signed date of the agreement. B. DEPARTMENT Funding Recognition. The RECIPIENT shall acknowledge and inform the public about DEP AR TMENT funding participation in this project through the use of project signs and/or acknowledgement in published materials and reports, the news media, or other public announcements. Projects addressing site-specific locations must utilize appropriately sized and weather-resistant signs. Sign logos are available from the DEPARTMENT upon request. D. Indirect Rate. To acknowledge overhead costs, the RECIPIENT may charge an indirect rate of up to 25 percent based on RECIPIENT employee's direct salary and benefit costs incurred while conducting project related work provided that prior to signature of this agreement, the DEPARTMENT's Financial Manager may require a list of items included in the indirect rate during negotiations or thereafter. Items that are generally included in an indirect rate are identified in Administrative Requirements for Ecology Grants and Loans (see Attachment 2 for applicable document reference). E. Equipment Purchase. The following equipment shall be eligible for purchase through this project, with prior written approval from the DEPARTMENT'S Project Manager and Financial Manager. The total cost of all equipment purchased under this project shall not exceed $5000. The type of equipment the RECIPIENT may purchase is limited to items used for monitoring in Task 3 above. Changes to equipment type must also have prior approval from the DEPARTMENT's Project Manager and Financial Manager. At project completion all purchased equipment or acquired property shall be retained by the RECIPIENT for continuing the performance monitoring and water quality objectives for which the equipment was purchased. Page 10 of 12 F. Minority and Women's Business Participation. The Office of Minority and Women O\ven Business Enterprises (OMWBE) has established voluntmy goals for the participation of minority- and women-owned business in procurements made with DEP ARTMENT funds. In accordance with the provisions ofI-200, no contract award or rejection shall be made based on the achievement or non-achievement of the goals. Achievement of the goal is encouraged; however, the RECIPIENT and all prospective bidders or persons submitting qualifications must take the affinnative steps set forth in the grant agreement in procurement. It is a state and national goal to expand opportunities for minority- and women-owned business enterprise. RECIPIENTS are therefore encouraged to use minority- and women-owned banks (as defined by OMWBE). The RECIPIENT agrees to solicit and recruit, to the maximum extent possible, certified minority-owned (MBE) and women-owned (WBE) businesses in purchases and contracts initiated after the effective date of this agreement. In the absence of more stringent goals established by the RECIPIENT's jurisdiction, the RECIPIENT agrees to utilize the DEPARTMENT's goals for minority- and women- owned business participation in all bid packages, request for proposals, and purchase orders. These goals are expressed as a percentage of the total dollars available for the purchase or contract and are as follows: Construction/Public Works 10% MBE 6% WBE Architecture/Engineering 10% MBE 6% WBE Purchased Goods 8% MBE 4% WBE Purchased Services 10% MBE 4% WBE Professional Services 10% MBE 4% WBE The RECIPIENT and ALL prospective bidders or persons submitting qualifications shall take the following affirmative steps in any procurement initiated after the effective date of this agreement: 1. Include qualified minority and women's businesses on solicitation lists. 2. Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. 3. Divide the total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by qualified minority and women's businesses. 4. Establish delivery schedules, where work requirements permit, which will encourage participation of qualified minority and women's businesses. 5. Use the services and assistance of the State Office of Minority and Women's Business Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S. Department of Commerce as appropriate. By signing this agreement, the RECIPIENT certifies that the above steps were, or will be followed. Any contractor engaged by the RECIPI.ENT under this agreement shall be required to follow the above five affirmative steps in the award of any subcontract(s). The RECIPIENT shall report to the DEPARTMENT at the time of submitting each invoice, on forms provided by the DEPARTMENT, payments made to qualified finns. The report will address: Page 11 of 12 I. Name and state OMWBE cetiification number of any qualified finn receiving funds under the voucher, including any sub-and/or sub-subcontractors. 2. The total dollar amount paid to qualified tinns under this invoice. G. Progress Repotis. The RECIPIENT shaIl prepare and submit progress reports to the DEPARTMENT's Financial Manager. Progress repOlis shall be submitted regardless of whether work is perfonned or not. Progress reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. The DEP ARTMENT will not process payment requests until the corresponding progress reports have been received. At a minimum, progress reports must contain a comparison of actual accomplishments to the objectives established for the period, the reasons for the delay if established objectives were not met, analysis and explanation of any cost overruns, and any additional pertinent infonnation specified in this agreement. PART VII. ALL WRITINGS CONTAINED HEREIN This agreement, the appended GENERAL TERMS AND CONDITIONS, the DEPARTMENT's current edition of Administrative Requirements for Ecology Grants and Loans (see Attachment 2 for applicable document reference), FY 2007 Low Impact Development Stonnwater Management Grant Program Guidelines (see Attachment 2 for applicable document reference)" Low Impact Development Technical Guidance Manual for Puget Sound (see Attachment 2 for applicable document reference) contain the entire understanding between the parties, and there are no other understandings or representations other than as set forth or incorporated by reference, herein. No subsequent modification(s) or amendment(s) of this agreement shall be of any force or effect unless signed by authorized representatives ofthe RECIPIENT and DEPARTMENT and made a part of this agreement, EXCEPT that in response to a request from the RECIPIENT, the DEPARTMENT may redistribute the grant budget. The DEPARTMENT or RECIPIENT may change their respective staff contacts without the concurrence of either party. IN WITNESS WHEREOF, the parties hereby execute this Grant: STATE OF WASHINGTON DEPARTMENT OF ECOLOGY CITY OF BREMERTON PARKS & RECREATION DEPARTMENT. DAVID C. PEELER DATE WATER QUALITY PROGRAM MANAGER WYN BIRKENTHAL DIRECTOR DATE APPROVED AS TO FORM ONLY ASSISTANT ATTORNEY GENERAL (Revised 6121/06) Page 12 ofl2 A TT ACHMENT I 'VATER QUALITY PROGRAM - FINANCIAL MANAGEMENT POST PROJECT ASSESSMENT SURVEY ~;~IM:I'ilh]ffi!~w!lit~~1~~'~~~l~~1~.~tf~lff1!~:~g;:~!~TI~~~1 1. Agreement Number: 2. Recipient Name: 3. Project Name: 4. Years Since Project Completion: o Three o Four 5. Contact Information: o Five o Other (please specify): Contact Name: Contact Phone Number: Contact E-mail Address: 6. Level of Involvement by Present Contact on Project: 7. Type of Project (check both if applicable): 0 Activity o Facility 8. Financing: Total Project Cost: Total Eligible Project Cost: Ecology Loan Amount: If Applicable, Ecology Grant Amount: 9. Water Quality and/or Compliance Problem: 10. Describe the iVlos! Critical Specific "Project Resu1t(s)" or "Outcome(s)" actually achieved by the Project: ATTACHMENT 1 - Page 1 of2 11. Providc documcntation (including digital color pictures) that evidence the continued maintenance and cffectiveness of the Project at the time of this survey: 12. Check the Eventual Environmental Result(s) or Goal(s) substantively addressed or achieved by the Proj ect: o Designated beneficial uses restored or protected, and/or o Regulatory compliance achieved, and/or o Severe Public Health Hazard or Public Health Emergency eliminated. 13. Describe the status of the Eventual Environmental Result(s) or Goal(s) at the time of this assessment: 14. Describe subsequent work and ongoing efforts needed to achieve the Eventual Environmental Result(s) or Goal(s) by you and others in the area: ATTACHMENT 1 - Page 2 of2 ATTACHMENT 2 \V A TER QUALITY PROGRAM'S FINANCIAL MANAGEMENT PUBLICATIONS 1. Administrative Requirements for Ecology Grants and Loans, Publication No. 91-18 (September 2005). 1. FY 2007 Low Impact Development Stormwater Management Grant Program Guidelines, Publication No. 06-10-055. 2. Low Impact Development Technical Guidance Manual For Puget Sound, Publication No. PSA T 05-03. 3. 2005 Stormwater Management Manual for Western Washington: Volume I - V, Publication No. 05-10- 029/030/031/032/033 4. Guidelines for Preparing Quality Assurance Proiect Plan for Environmental Studies, Publication No. 04- 03-030 (July 2004). 5. Stream Habitat Restoration Guidelines(drafi), http://www.wa.gov/wdfwlhab/ahglshrgdoc.htm A TT ACHMENT 2 - Page 1 of 1 DATE SUBMITTED: May 7, 2007 BILL# 07--1;)-\ 5M AGENDA BILL CITY OF BREMER TON CITY COUNCIL ........................................................................................ SUBJECT: 2007 Kitsap HydroFest Committee Meeting Date: May 9, 2007 COUNCIL MEETING Date: May 16, 2007 Department: Parks & Recreation Presenter: Jeff Elevado Phone: 473-5428 SUMMARY: The Seattle Outboard Association (SOA) has once again applied to the City of Bremerton for permission to hold their annual Kitsap HydroFest, a hydroplane and runabout boat race, on May 19th and 20t\ 2007, on Kitsap Lake. This event is part of the 59th Annual Armed Forces Festival and their 5th annual event on Kitsap Lake. The previous events were deemed successes and no significant incidents associated with this event have been reported. The organizers are expected to satisfactorily comply with the 2007 requirements set forth by the Police, Fire, Risk Manager and Parks & Recreation Departments. A TT ACHMENTS: Seattle Outboard Association Special Event Application Letter- 2007 HydroFest FISCAL IMP ACTS (Include Budgeted Amount): No foreseeable impacts. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Motion to approve the Seattle Outboard Association's application to hold the 2007 Kitsap HydroFest, a hydroplane and runabout boat race, on Kitsap Lake on May 19th & 20th, 2007 pending their compliance with the City's requirements. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action UQ/ UII ,1)1)7 H: 06 FAX 3604735200 B3/26/2e07 10:34 368-697-5229 CITY-BREMERTON PACIFIC COAST CO. 14J002 PAGE 82/03 f;~. :.':~~ ~~;:'~~.'~ ~'I~: i)\ ,. '1'-. r'-' .:::':'J 1 j: ::;.~ :"..... :vJ.AI,: :: P ?007 , ,""",., rL-:~ c.~: ::~.~~. \';;).~ ~E:i (.;~~. ......:.' ",. .../, . ,'n ~ City Clerk Paula JohnstOI1 :;45 6lh Street Bremerton, W A 98337 February 26,2007 Dear Paula, Please accept this letter as the official appU~ion for our ParticIpation in the 59th Annual Armed Forces Festival on behalf of the Seattle OUtboard Association to host the 2007 Kitsap Hydl'oFest. a sanctioned regatta on Ki1saD Lake during the weekend of May 19~20, 2007. The event will once again be held at the US Naval Station facility, Camp McKean. We uno.rstand that the City Park boat launch will be closed to the public for that weekend and 'request limited acce55 to the boat launch fQr rli'51>Ue and pnn-ol OOllts for ooth days. As I" (h~ past four yeal'$. we will e.g.l" .rrang~ fOf additional off- site spectator parking and work in conj\mction with Kitsap Transit to provide shuttle servic~. Listed below is tile In Ibrmation requested in paragraph 3 of City Ordinance 13.08.080. Ja) Sponsoring Orgstlizatlon: Seattle Outboard Association ' 29714318TH Ave SE Ravensdale. W A 98051 3b) Ev~qi Contnc:ts: John Eric::/(Soll Ph: (206) 595-9863 P.O. Box 10 I 59 Fax: (360) 697~6229 BaInbridge "$., W A I}lS I 10 Owight MaJhiot Ph: (360) 83()"4978 279 Gold Creek Rd N W BremcrtoM, W A 983 J 2 3c) Event Name: 2007-Kitsap IlydroFest Pu rpt')5e: To conduct and promote the sport of outboard powered boat racing. 3d) Cenc""l Interests; SOA is Q nonprofit orgc:lnizlitiol'/. f(lund~d in tho Ielto 1920.5, to pr(llnoto tho sport of outboard powered boat racing fe~uuring two classes of boats. hydroplanes and runabouts. These. boats range in sb:es fTom 8 to 12 feet in length and the drivers rang~ from jl,miors. be&innillg at 9 Y/,l(\rs old, all tJl111 way up to seniors. Some of ~UA's members havc gone on to becoming famous professional unlimited hydroplane drivers inclUding Chip Hanauer and Nate Brown. ' 3e) Estimated number & types ofwstercraft: 50-75 outboard powered hydroplanes &. runabouts. 3f) Estimated numt)e... 9fspedntor ~atcrc....ft: None - Lake Closcd. 3g) Estimated number of penon::!, partidpants, and all others: 250-500. 3h) Minimum nUn)ber (Ihponsoring boats and persOJ2S to patrol the event: At least 5 boab and 6 people, Ji) Time schedule and description of events: 9:30am to 6:00pm Saturday and Sunday, approx. 14 classes of race boats wilh 2 heats each of limited hydroplancil and runabouts. 3j) Section of.3 chart showing the boundaries ofthe eveat= See accompanying diagram. .3k) CerUflcalt:: Of Insprance: A. Liability InSUranC/il polioy, in' the amount ot'$5,OOO,OOO, WIll be issued pnor to event start and copies submitted to the City of Bremerton. SOA will have five patroVrcscue boats on the !'acecollrse_ !,rior to the &tart of each heilt of the race. TwO boats are dedicated for rescue purposes. as req"ired b)' the American Powcr 80at Association and BMC 13.08.080(6)(C), and will contain dQvi~es to lift injured l:lrivon: from Wll.tOf, FITr,lt. Aid Kitt;. Firc Extin&ui:Jhcl'3, and two-WilY I"IIdios. Tho primm)' rO~(lUC vessel has been specially designed wilh a drop-down bow section, tflat allows for easy transport of a Stokes stretcher to-and- 05/07/2007 12:06 FAX 3604735200 63/26/2007 10:34 350-697-6229 CITY-EREMERTON PACIFIC COAST CO. 141003 PAGE 03/03 from the water and/or shore. This vessel will be manned by three members of the Bremerton Race Rescue team eonsisting of two EMT's and a rescue diver. They will be on~sta[ion as designated by the rire Chief, typically in the center of the: racecour!)e, with ~ cngino idllnl!O in neutral, reed)" to t'c:lPQncl quickly, al1d Ia in radio communication with the entire raco committee and the other patrol and l'C$cue warercratt. 111e seCQndlll1' rescue boat will have a backbOard and be operated by authori~ pe('S{)nnel of SOA and will typically pmol insido the area of the first turn. In addition to the two rescue vessels, there will be two safety judge boats, one anchored inside each end of the racecourse, along with a third patrol bOlt typically patrolling the inside area of the r>eWrld turn. SOA will cool'dinate to hbe two paramedic! who will be on site fur the duration of both dll,Y3. The: ambulance will be positioned nearby tho dock at Camf) McKean. and a clear roadway acce$S to the street will be mainra.11'ICd and supervised by. SONs dQ~iljl1atcd Riak M"nllg~. ThCl Risk MM.&~ for this cvent will eh01"O\lghl,. inspeet the racecourse, and a.1I VCAI! to be used by speotators or pwcipants. Plastic banner type fern::ing Will be positioned to designate spectator and any hazardous areas. SOA will post a $1,000 perfoOT1a'l\c:e bond ((1[ cash) to the City of Brernerton for this eVfmt and will be issued prior to the start: of the event;!!; nmlinf1:r1 in BMC 13.08,OSO(4). The State Department of Fish and Wildlife in Olympia was eontacted prior to the last three year's events and ffley had 5t1rt~ that no perm~ WCT10 rc:quirlXl for the event and that the City of Brcml;\1on has control oftbc lake:. aur Ulie of the C~ Park boat launch facility will be monitored, end cordoned~ff if necessat}', by a designated risk manager to ensure that public; satety is maintained by Others using the park. We will nat be launching any race boats trom the bOat launch nor do WI: request the use of the park fucllltles after dosignated park hours. This event is sanctioned and insured by the American Power Boat Association (APBA) and SOA is the conducting club. APBA wilt provide a suppl~tal letter to the City of Bremel10n that will include Hold Hannle5s language (outlined be19'UV) ~d lligned by lhc: ReGion 10 Ch~irm$n. The American Power Boat A,$$ociQtiQn agrees to tkftnd. i"ckmnifY and hold harmles.s the City, jt$ appointed and elected ojficial: and employees, framrmd against any and aJ/ Ifabi/ity. loss, oosts, dumage and expense, including COsts and attorneylees in defense thereof because of actions, clofmJ or lawsuits for damages resulting therqfrom, IU-'rtamed "r alZq<<d to have hlum .f'J.ftnf/1t1ftf h)I f11f)I [I,-r.tnn nr fI'..nmm: and fin ac;cmmJ. of damage to property, ari$;ng qr alleged to h(/\le orisendirect/y or indirect1)J OUl of the American Power Boat A",'1oclation's evem he/d On Kltsap Lake on May It/' (Jtrti2(/", 2007, exceptlor alleged negli~nt acts or omi/fsion of the dty, ita appo;nt.:ri ami ele.t;;te.d officiall am'l1mployees or arty ult~g~d Q,:fective cOr/ditio'l of tIre premue!I. These regattas provide great spectator entertainment, ftee, for the whole family to enjoy for 1f1e wee\(end. The eVent is str1ctly ~ctioned. and Insured by the American Power Boat Association. and our respel;t for the care and usage of the lalee and park fiaeilitj$S., along with the safety of the spectators. is (If our utmO$t concern. Please let me know ifthere is any additional information that you will need to process this appBcation. T can b~ reached at the nurtlbers listed below. Sincerely, n Erickson S crttlo Outbonrd AssocIation .0. Box 10159 Bainbridge ISland, W A 98110 (Wk) 360-697-6080 (Fax) 206-780-5167 (Cell) 206-59~~9863 05(07/2007 12:08 FAX 3604735200 CITY-...BREMERTON 141008 8S/B3/2807 12:15 206-781::1-3494 THE MERIDIAN PAGE 1::14 . ... ,..-....., ~ iT ., s ,....0 )' cd ~> S;'- ~ ~ ~i ~ I -l ,(>~ ~; J ~j !F l~ 3 ~ ~ ~ "'8IMf~ ~ f~~~~ &: ~~ "- " 1 II h Lt U \.I J ~ X."1N\'f'lI ...... )\ J .J \t - .. i:-~~ ... .. ~. ,\2 .. .. ~ ~~ ~ ~Y.Lc;' ~ & 8 ,.... . ~ (;\- Co' 'i ...::- ~ ~i t ~ .\t'~ ~ t J ~ ?p ~ N .j - [ ..Jo fP A,~ ~~ ~?- ~ il >0 ~ ~~ J ~ 05/07/2007 12:08 FAX 3604735200 05/03/2007 12:15 2a6-780~3494 Corporati~n5: Registration Detail CITY.J3REMERTON THE MERIDIAN 141 007 PAGE 05 Page 1 of 1 ""'-,.:); ~;~;:!\.,""", , '. ~'~"~'~j.. -'t "\, s., . - ,." . '. -hfla' l" f' "... ...... . :. . . .',-',. e., " ." ". ' ~. . . .... ' I. $;ij~!Si\:).l Ra:D ,',. " ,,' .' ' , I ".'J~\o'A'_"" CORPORATIONS Corporations Menu >> Flillt Page Enter Keywords $earc:i wee SJce', . I Corp?rations Division.. Registration Data Search SEATTLE OUTBOARD ASSOCIATION UBI N,Ul11ber 601006654 c..te~ory Regular Corporation Profi~Nonprofit N()n~roflt Activ~lInactive Active state 10f lnc;:orporatlon WA Date ~ IncorpQl'aliulI 01/30/1981 L1cen~e Expiration Date 01/3112006 , I Re9~tered Agent InformaUon Agent: Name JOANN HEGEMANN Address 29114 318TH AvE SE City ; RAVENSDALE State : WA ZIP 98051 Special Address Information . Add"," c it)' i State lip << Return to Search List Disclaimer Infcnn~ticn in thP. ~Anrp.W,Jry t:lf Str:lte'$ OnliM CQrp(lrR'lnn~ ~Mb<'l!'iP. is updated Monday througn Friday by 5:00 a.m. Pacific; Standard Time (state holk:lays excluded). Neither the State of Washington nor any agency, OfflGef. of employee of the St~te of washington warrants the accuracy. reliabilityl or tiJl1li:liness of any information In thfi Puplic Acoes8 Syat=m lllnd ~n311 n?t be lIabl~ for ~ny Joues cau$<<! by $uctl rellMea on the accuracy. ~liElbiljty, "r timelinp.!>.<;. nf such infcrrnetiol'l. . http://w~.secstate.~a.gov/corps/search_detail.as.px?l.lbit:t!l60 1006654 i 4/412 om 05/07/2007 12:07 FAX 3604735200 CITY.J3RE~fERTON 141004 ;:" E IJ J S 7 0 U { ..,..A~ A_.~ .... ~~ ......... ;..., .... ~ 1I~ i~ 2; ;:~:::~ \~, \1'.::7 j:,?: :Ci; . .. . - .; :,c".r...,"", .(. L::' :':"~.. ".' '.. II (.'I, :.j 'J (. 1'-.. I I",::.....;;; :,: rl:.~/.I; (~;~ ~~i. '.;:-;:-<./-.. . ':_,;,:;-:I~~.::- Paula Johnston City Clerk City of Bremerton 345 6lh Street Bremerton, WA 98337 n IqJ) }' February 27, 2007 Dear Paula, Please accept the hold hannless language listed below as an offICial supplement to the Seattle Outboard Association's written application, dated February 26,2007, to host a sanctioned regatta on Kitsap lake during the weekend of May 19th & 20th, 2007. This race is sanctioned by the American Power Boat Association and insured by its insurance company, K&K Insurance of Fort Wayne, Indiana. The Seattle Outboard Association is the corn:lucting club. The American Power Boat Association agrees to defend, indemnify and hold harmless the City, its appointed and elected officials and employees, from and against any and all Iiabilrty, loss, costs, damage and expense, including costs and attorney fees in defense thereof because of actions, claims or lawsuits for damages resulting therefrom, sustained or alleged to have been sustained by any person or persons and on account of damage to property, arising or alleged to have arisen directly or indirectly out of the American Power Boat Association's event held on Kitsap lake on May 19th & 20lh, 2007. Sincerely, "-" -.'-",....... ....-...... ...,,~ VVV"*'vv,,"VV L:ITtjlJ:<EblEJ:<'l'UN ..~ CERTIFICATE OF INSURANCE THE M~)! 1 "( I4J 005 PAGE a2 05/03/26e7 12:15 206-780-3494 1356849 I$:lUE 0A'rE Il\'l.WOClIY'I) 5/04/07 PRODUCER K.& K Insurance Group, ~712 Magnavox way 1'.0. Box 2338 ~orc -ayne. In 46801 .~:' ':':'~', C_~.~:- I :,,; ij;. l-~; i :, .,~'f C~a ,1 .:~.. :_~'. -..... Inc. ' .. ',!i,/\Y 1 2 !J(j"i nlls ce;RTlfIGAl"E IS ISSUEO AS A MATTSR OF INFORMATION ONI.Y ANO CONFERS NO RIGi'iTS UPON TH!: CERTIFICATE HO~OeR. THIS CERTIFICATe 001:5 NOT AMeND, eXTeND 0/\ ~TC~ THC COVERAGE MFORDED BY THE FOUClES SI::LOW. COMPANIES AFFORDING COVERAGE 'NsuReo~,~:," ,; I. .,.(. AMERICAN POWE~ 8~~T ~SSOClA~ION 17640 E. NINE MILE RO P.O. BOX 377 E~STPOINTE, Ml 49021 :1='/'-{;l,~~I,i'::i!/:)I': ".COMPANY A LErl'TER COMPANY a LETTER COMP'ANV C l.eTTER ~ATIONWIDE LIFE INSURANCE COMP GREAT AMERICAN ASSURANCE COMPA COVE~GeS THIS!IB TO OEF(TIFY THAT 'I'I-IE POLlClE;S OF INSURANCE WSTI!I:l SEL.OW HAVE BEEN ISSUED TO Tf-l6 INSURED NAMec ABOVE FOR THE pouev peRIOD INDICATED. NOTWITHSTANDING AK'f REQUIREMENr. TERM OR CONDITION OF ANY CON'l'MCT OR on;eR DOCUMENT WITH REBPEC1' TO WHICH rHIS CERTIfiCATE MAY BE: ISSUED OR MAY f'ERTAlN. THE INSURANCE AFFORbeD BY THE POL.ICIES [)esc~llSel) HEREIN IS SUBJECT TO All THE TERMS. EXCI,.USI~ AND CONDITIQN$ OF $l,lC;:H POl.ICIES. UMlTS $t1Owr. tAAy HAVE! liSEN FlEDueED BY PAlO eLA1M5. 00. LTR 'TYPE OF INSURANCF. POLlC:Y NLlMREiR i:>ATe~ POI..CY EJlPIRA~ ClATE ~ UMIT$ <I" ti'Ml~) General Uabfllty B : I[J Commercial Genersll.iability o Claims MacleKJOccur. D Ownn a OQIW'aQtQr:$ PrQt. , ~ 1.00, 000 JUUtO~$: AND OMISSIONS GLO0568974902 12: o lAM 121Q1/06 12:01AM 12/01/07 Goner.ll AaretPIe PloducIa-ComllfOPII Aggrv;l'lo Pfln;onQJ & Ml'Onl$lna lnJUlY 5:Jch OI.'IllIJItI/lI'B FIno I;l<<map (My 01'0 tom) Medllllll Slcplll1li8 (1Vr( on", pOrwn) ~rtIaIp;ri LC\Ii1lI Liabilllv ~1l1blmal Single Lim~ Bodily mJLIry _ $ (-.......on' Badlly ~!';"_\ $ Prupvrtv ~~sa $ NONE $ 5000 $ 5000 $ 5000 I :;1.00 . 5 . 5000 : ~*,lIIe 1.18D111ty : 0 Any auto ; B All owned aI.llO& ; SchacMeclaLltll$ ; DHired~ ; t:l Ncm-awned i1UTaB : D Galllge Liability ;0 o : 0 0ttIt'!r tMn umt;lr~IOl fllr'm Worker.!:' COl'np@Malion and Employers' UalllIity $ Exc~ Uabnlty $ ~ Occummca A(wRlQBls $ $ S J.2 : O.L.Al'\ AD&O J.2/0J./07 Ptlrnary~1 Exce5:; Medical W...oIttttI1lldomnllv DEGCR'IP11ON OF OF'ERATlONS"-.OO"TION~ermucTIONa/SF'e!elAL ITEMS TYPE OF EVEl.q'X:21f07 lCITSAP HYIlROFl!:,ST DATE OF EVENT: 5/19 _ 410/01 LOCATION; KITSAP LAKE, BREMERTON, WA (SEE ATTACUltl ArlDENr)UM) P,A. COiTBRA'rEh AilSA MEMBERS SHOWN AllOW; No.t<I'-M:S.U~P.S $3,000 AD&:D($3,OOO EX ra:o CERTIFICATE HOLDER CANnF:l14T1OfII 1\ flBrticip8nt Accident KPXOOD211el1100 J.0i:! I O;I.AM 1:2/01/06 $ Stiltutory e'ilCl~ Acllldam OI__PoIJcy limit Di__~ limlllOVOO S J.O $ NOm: $ 20 is X NON] !II MR. .JOHN ERICKSON SEATTLE OUTBOARD ASSOCIATION P;O. BOX lb159 BAIlIiBIUOGE ISLAND, WA 98110 SHOULD ANY OF THE ABOVE DESCRI6EO POLICIES B~ CANCELLEO B~ORE THE EXPIRA'fION DATE THEREOF. THE ISSIJING COM?^NYWlLLgNOeAVORTOMAIL 30 DAYS WRIT't'gN NOTICE TO THE CERTIFlCAT5 HOLDER NAMW TO THE lefT. BUT FAILURE: 'f0 MAll SUCH NO'rICEtSHAllIMPOSE NO ~BUGAi'lClN OR llABllIlY OF ANY ~N UPON THE COMPANY, ITS AG~NI:ll ut<~ . "'''11V)7 /l AUTHORIZED REPRS5fi;tffATlvy'f .Y 1)' I V I ..J __.~ ~ If) _ St.39 / ~j -c:::::: -.J HI 05/07/2007 12:07 FAX 3604735200 ~5/B3/2e07 12:15 206-780-3494 CITY....,BREMERTON THE MERIDIAN 141006 PAGE e3 ~ f) n R N n 1] M P A. G F. FI' 0 'R ~ R R ~ T F T ~ A ~ F. K & K INSORANCE GROUP, INC. CER'I'IFICATE: 1356849 DATE ISSUED: 5/04/07 ACCOUNT NAME: AMERICAN POWER BOAT ASSOCIATION TYPE OF INSUP..ANCE: GENERAL LIASILITY POLICY.NUMBE:R: GLOOS68974902 PARTIC!PANT AaaXnmN~ I<l?X000240'!\100 ADLJJ.'.I.'.1.0NAL INSUREDS: c~ ~ ~ERSON OR ORGANIZATION ENGAGED IN OPERATING, MANAGING/ SANCTIONING, SPONSORING THE 'ICOVERED PROGRAM" r OR PROVIDING THE "PREMISES" FOR A "COVERED PROGRAM", INCLUDING OFFICIALS OF THE 11 COVERED PROGRAM". .ANY "PARTrCIP1\NT", "COMPETITION VEHICLE" OWNER AND I1COMPETJ:'!'J:ON VEHICLE" SPONSOR. CITY OF BREMERTONi CITY OF BREMERTON PARKS & RECREATION; COMMUNITY !'ROGRAMS; US ~A'\f';( i ~AVAL BASE KJ:TSAP; BREM:ElRTON SCHOOL DISTRICT; BtJT ONLY AS RESPECTS TO THE OPERATIONS OF THE NAMED INSURED A. R, I SPECIAL CONDITIONS: INSURANCE PROV!PE~ BY THESE POLICIES EXCLUDES COVERAGE FOR ANY AMOSEMENT DEVICE AND/OR BUNGEE EXPOSURE. 13.08.080 REGATTAS, RACES OR AQUATIC EVENTS - APPLICATIONS. Applications for regattas, races, or aquatic events shall be submitted under the conditions set forth in this Section. (1) Submission of Application. An individual or organization planning to hold a regatta, race, or aquatic event which, by its nature, circumstance, or location may introduce extra or unusual hazards to the safety or life on the waters of Kitsap Lake, shall submit an application to the City Clerk. (2) Applications shall be submitted on forms provided by the City Clerk and shall be submitted no less than ninety (90) days prior to the start of said event and, in any case, not later than the first day of the month of May of the year of the event provided, however, the City Council may waive this time requirement for a written application received prior to the effective date of this Section, so long as a formal City application is submitted by June 15th and at least two (2) weeks prior to the event. Each application shall be accompanied by a permit of $150.00 to be paid to the City Clerk along with the application. (3) The application shall include the following details: (a) The name and address of the sponsoring organization; (b) The name, address and telephone number of the person or persons in charge of the event; (c) Nature and purpose of the event; (d) Information as to general interests; (e) Estimated number and types of watercraft: participating; (f) Estimated number of spectator watercraft:; (g) Estimated number of persons, participants and all others; (h) Minimum number of boats and persons being furnished by sponsoring organization to patrol the event; (i) A time schedule and description of events; U) A section of a chart or scale drawing showing the boundaries of the event, various water courses or parking areas and areas to be utilized by participants, officials and spectators; (k) A certificate of insurance showing that the appli~nt has ob~ained public liability and property damage insurance for the paymeht of all damages which may be caused either to person or persons, or to property, by reason of said event and to ensure that the requirements for markers, rescue equipment, or other safety conditions stated in the application finally approved as actually provided. The insurance policy required pursuant to this section shall name the City as an additional insured and the City shall be notified by the insurer at least twenty (20) days prior to any cancellation of the insurance. The insurance policy shall also contain a standard form cross-liability endorsement. Such insurance shall contain a minimum coverage of $500,000.00 per occurrence; provided, however, that in the event the applicant desires to h<;lve a hydroplane race, the minimum coverage shall be $1,000,000.00 per occurrence. (4) A $1,000.00 performance bond, or $1,000.00 cash deposit, shall be posted by the applicant to ensure that the aforementioned conditions of the application and permit are followed by the applicant. Following the conclusion of the event said $1,000.00 performance bond, or cash deposit, shall be refunded if all conditions have been performed to the satisfaction of the City. (5) Upon receiving an applicatior:l to hold a regatta, race or aquatic event, the City Clerk's office shall forward the application to the police department, fire department, risk manager, and the parks department. (6) The fire department will make the following determinations, in writing, and send said determinations to the parks department superintendent. (a) Whether the proposed regatta, race or aquatic event may be held on Kitsap Lake safely or whether the interest of safety of life or property requires changes in the application before it can be approved; (b) The extent of paramedic services shall be determined by the fire chief; (c) Whether rescue boats are needed and, if so, the number of required rescue boats; provided, however, that at least two rescue boats positioned as determined by the fire chief shall be required for hydroplane races. The equipment, boats and manpower for these rescue boats shall comply with all applicable state and federal laws, and shall be provided by the applicant; provided, that the applicant will allow Bremerton police and fire personnel to ride in the boats as directed by the fire chief. The rescue boats shall be equipped with fire protection equipment determined necessary by the fire chief. (7) The police department will make the following determinations and will send such determinations to the parks department in writing: (a) Whether the proposed regatta, race or aquatic event may be held on Kitsap Lake safely or whether the interest of safety of life or property requires changes in the application before it can be approved. (b) Whether closure of the lake or a portion thereof is warranted and steps needed to be taken by the applicant in the way of buoys or shore barriers to protect the public; provided, that the parks department will be responsible for posting the closure or partial closure of the lake at least thirty (30) days prior to the designated event and for notifying the F.A.A. of the lake's closure. (c) The amount of law enforcement and manpower supplied by the applicant needed to enforce closure or partial closure of the lake, to include required traffic control in the immediate area of Kitsap Lake. (8) The Risk manager shall determine whether the insurance provided by the applicant is adequate and will send such determination, in writing, to the parks department. (9) The Parks Department shall communicate the requirements imposed by the fire, police, parks department, and risk manager to the applicant and shall add these requirements to the application. The Parks Department shall then forward the application along with these recommendations to the City Council. (10) The City Council may authorize the approval of any application subject to the minimum requirements imposed by this section, as well as additional requirements recommended by the police, fire and parks department, and the risk manager, or they may deny the permit. (11) If the permit is granted subject to the conditions set forth in subsection 10, the fire or police department may revoke the permit in the name of the City if, at any time, the applicant, sponsor, or participant in such event violates any of the conditions contained in the application. (Ord. 4154 91, 1988) rage I 01 1 Jeff Elevado From: Peter Fisher 't: Tuesday, May 08, 2007 10:56 AM To: Jeff Elevado Cc: Tom Wolfe; Greg Rawlins; Craig Rogers Subject: Hydroplane races Jeff, I have reviewed the permit application for the proposed races to be held at Kitsap lake in conjunction with the 59th annual Armed Forces Festival; as well as the requirements enumerated in the BMC. (13.08.080) The race has been in place for the last five years without incident, therefore we approve the application in its entirety. Additionally, I do not foresee the need for off-duty police services since the lake will be closed. Our sector cars will be made aware of this event, and depending on call load will remain in the area. Lieutenant Peter Fisher Bremerton P.O. Operations 1025 Burwell Street Bremerton WA 98337 (360) 473-5236 5/8/2007 lr.~~~~~...rf?T~~~[.tci! ! i: . /' / ill I Ii Ii ri/'r/( ".._,.,...._-- ,( ~ 'SL I ~I U.:=,,--=.: ,-"-~__~~--'=C_'_~~'-:'~ "'l"'?,......."" "" . ! .~~~~~1&~i8: l. t.'S.~_ ..~_:.. __,~ .__.__ .___~~. __ '_." .___. - '_~' _~:-' _ _ _':..-=-__'_=--~ _~ -~__~_i Bremerton Parks & Recreation Aquatics and Recreation Manager Jeff.Elevado@cl.bremerton.wa.us May 9, 2007 NEWS RELEASE Contact: Jeff Elevado Aquatics & Recreation Manager (360) 473-5428 SUBJECT: KITSAP LAKE CLOSED MAY 19TH AND 20TH FOR KITSAP HYDROFEST IMMEDIATE RELEASE Do not use after 5/20/2007 The City of Bremerton Parks & Recreation Department is announcing that Kitsap Lake will be closed to the public all day on Saturday, May 19th and Sunday, May 20th for the Kitsap HydroFest. This race, sponsored by the Seattle Outboard Association, is part of the 59th Annual Armed Forces Festival and the association's 5th annual event on Kitsap Lake. The regatta will feature outboard powered hydroplane and runabout races. Races will include 14 classes with 2 heats each of the limited hydroplanes and runabouts. The boats range in size from 8-12 feet in length with drivers ranging from juniors, beginning at 9 years of age, all the way up to seniors. Seattle Outboard Association members who have gone on to become professional unlimited hydroplane drivers include Chip Hanauer and Nate Brown. According to the Seattle Outboard Association, this event is free to the public. Kitsap Lake Park will be available for spectator parking. The boat launch will be closed Saturday and Sunday. For additional information regarding this closure please contact the Bremerton Parks & Recreation Department at (360) 473-5305 DATE SUBMITTED: April 25,2007 BILL # o 7 - J d-d- 5N AGENDA BILL CITY OF BREMERTON CITY COUNCIL ...................................................................................... .. SUBJECT: Real Estate Purchase and Sale Agreement United Association Local 26 Building Association Committee Meeting Date: May 9, 2007 COUNCIL MEETING Date: May 16, 2007 Depat1ment: City Attorney's Office Presenter: Roger A. Lubovich Phone: 473-2345 SUMMARY: Staff is requesting approval of the purchase and sale agreement with United Association Local 26 Building Association to purchase the "Plumber's and Steam Fitter's Union property", which is adjacent to Evergreen Park for expansion of the park. ATT ACHMENTS: Real Estate Purchase and Sale Agreement with Earnest Money Provision FISCAL IMPACTS (Include Budgeted Amount): The purchase price of the property is $240,000, plus necessary closing costs. "''-- 2.(;)~" \o\)6.~~\-~'" ~c:.<.....'t.. ~.....t."\'\-\e:. c:.a,.,.s.~'f'",-~,oto...) \~ <::\~Q~ \--\..,\.,. ~\) ....\:...\......e...SQ.. \....\__,)','- ~(~Ic.' APPROV ALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: ~ COMMITTEE CHAIR COUNCIL PRESIDENT: ~ CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING D RECOMMENDED MOTION: Move to approve the Real Estate Purchase and Sale Agreement with Earnest Money Provision between the City of Bremerton and United Association Local 26 Building Association and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions and to execute any and all documents necessary to close the transaction. COUNCIL ACTION: D Approve D Deny D Table D Continue D No Action REAL ESTATE PLRClIASE Ai\D SALE AGREE:\IE\'T WITH L\R\'EST'IONEY PROVISION (Plllmhl'rs and Stl':lm Fitter's tniol1 Property) This j\gr~~I11~nt is entered bct\v~t.:n the CITY OF BRE'IERTON, a Washington municipal corporation, ("Buyer"), and UNITED ASSOCIATION LOCAL 26 BLilLDING ASSOCIATION, a \Vashington ~t,; Rt.~n,-- ~\Jrporation, ("Seller"), for the sale and purchase of real property as tullo\Vs: 1. PROPERTY. The property, induding all improvements and appurtenances situated thereon, which Buyer agrees to buy and Seller agrees to sell, is commonly known as the Plumbers and Steam Fitter's Union propel1y located at 1309 Highland Avenue, Bremerton, Washington (the "Property"), and which Property is legally described in Exhibit A, attached hereto and incorporated herein by this reference. A map indicating the location of the Property is also attached as Exhibit B, incorporated herein by this reference. 2. EARNEST MONEY. Received from Buyer, Five Thousand and Noll 00 Dollars ($5,000.00) as camest money and part payment on the purchase ptice for the Property. , 3. PURCHASE PRICE. The total purchase price for the Property is .is Two Hundred Forty Thousand and Noll 00 Dollars ($240,000.00), including earnest money, payable on closing. 4. CONTINGENCIES. This agreement is contingent upon: (a) (b) Acceptance of its terms by the Bremerton City Council. Buyers review arid approval of the titl; reRorton the property prior to Closing. ~2 ~ A Feasibility Study as follows:..:) --q/3 \ (I) Buyer shall have si~~ months from the date of mutual acceptance of this Agreement to determine, in Buyer's sole and absolute discretion, if the Real Property is feasible for use andlor development by Buyer. (2) Buyer's feasibility study may include (but is not limited to) a Phase I and/or Phase II environmental assessment, utilities availability and capacity, access availability, zoning, preliminary architectural and engineering studies, marketing feasibility. (3) A Phase I environmental assessment generally will consist of a review of title of ownership and land use, review of geologic and hydrologic maps of the area, review offederal and state databases for known hazardous water generators or contaminated sites and a site visit. If the Phase I review reveals the potential of a contaminated site, a Phase II environmental assessment lIlay he conducted which ( e) REAL ISlA!!: PURc/IAS[ AND S,\U: ,\GREJi'vlENT Page I 01'5 gellerally \\ill e(ln:si~t iJf pll-sik sampling. induding rhe digging or lJllr1l1g pf test l](llcs f()1' s,lil samples, HI' exccwillg rills Ug/'CCIIICIlt, .)'e/lcl' /icI','b\' i//{r/iol'i::cs Nu\','I' a I'ig/il o(clltn 0/110 Ihe p/'UpCl'fl'.l;J/' /!T('IJlIlj!oS(' o/col/d/{('(ing rhis /casibililr sr/{(~\ i/leluding II j>/z,ISC I. i/nd i/I/('C'cs,wn', II I)//(/,\'(' II C/llil'OIlIl/cllla! aSSCSS/}/cnt, SeI!CI' II'iI! he noti/led Ira P/zllse 1/ c/I\'/I'ulI/}/cnta/ assesslI/cnt is to he condllcrcd. (4) Buyer agrces to conduct its feasibi lity study at its sole cost and expense: and if Buyer does not remove the feasibility contingency on or before the expiration of the feasibility period, then Buyer also agrees, if requested by Seller, to deliver to Seller copies of all infonnation and documentation obtaineu by Buyer in connection with its feasibility study. (5) If Buyer fails to notify Seller of its approval of the Real Property, in writing, on or before the cxpiration of the feasibility period, thcn this Agreement shall be terminated, and neither Buyer nor Seller shall have any ful1her rights, duties or obligations hereunder, except that the Earnest Money held in Accountable Escrow, by Buyer to Seller shall be immediately returned to Buyer. Buyer agrees to return the Real Property to its original state (i.e., fill all boring holes, etc.). Should any of these contingencies not be met prior to closing, then this Agreement shall terminate except neither Buyer nor Seller shall have any further rights, duties or obligations hereunder, except that the Earnest Money held in escrow shall be immediately returned to Buyer. 5. CONVEYANCE AND CONDITION OF TITLE. The title to the real property shall be conveyed by Seller to Buyer at dosing by Statutory Warranty Deed, free and clear of all liens, encumbrances or defects except those described in Paragraph 6 below. 6. TITLE INS URANCE. At Closing, Seller shall cause Tr...~:;:;;;:* ;;:;;::"&17/ ~~S; ~~~'0~S aftd tclel"km'le fttlltlbEr is 9619 Le'.in Raa6 },'W 8il . Ie, \V . 98383, (360692 4556), to issue a standard form owner's policy of title insurance to Buyer in an amount equal to the total purchase price of the Real Property, and insuring the Real Property be discharged by Seller shall be paid from Seller's funds at Closing. For purposes of this Agreement, the following shall not be deemed encumbrances or defects: rights reserved and federal patents or stale deeds; building or use restrictions consistent with current zoning, and utility and road easements of record. If title cannot be made so insurable prior to the Closing date called for herein, unless, Buyer elects to waive such detects or encumbrances, this agreement shall terminate. 7. CLOSING COSTS AND PRO-RA TrONS. The cost of escrow shall be shareu equally between Buyer and Seller, cxcept those tees which are expressly limited by Federal Regulation. Seller shall pay for excise tax and revenUe stumps. Tuxes for the current year, rents, interest, Association, Condominium and/or Homeowner's fees. water and other utility chargcs, i fany, shall be pro-raled as of date of closing unless otherwise agreed. IU-M FSTAIT I'URClL\SF ,\ND S,\LE :,\(jRlUvIENT P'gc 2 015 I ;f Pacific Northwest Title, whose address and telephone number is 9927 Mickelberry Rd NW, Silverdale, WA 98383, (360) 692-4141, I "') 7 '.\ - ") ( ~ L _ 1\ 'Ie) '-\":," :., \ , '2..u i \ . v .-..- ~. CLOSI~G OF THE SALE. This sail: shall h~ clused OIl a date dctcrmiIll;.'d by Buycr hut ill Ill) C\t'Ilt latt'r than f~nb~J07, which shall also bc thc tcrmination dale llfthis I agrc~llIcnt unkss said cl,oslllg date IS extended In \\rttlllg by mutual a~reement of.lh~~~,arties. :f-~V~en__,_ ______,__ not I II cd, the H u ycr and S c ller \\'11 1 deposl t, \\'1 thout delay, 111 escrow with J !'tll1,".'l.::W:r ! :!/c 1:1.": I:/." .'fOe +~I~' all instrumcnts and monies required to clllllplcte the transaction in accordance with this I agreement. Clnsing, fl.)!' the pu'rpose of this agreement, is defined as the date: that all documents are executed and the sale proceeds are available for disbursement to the Sdkr. 9. CASUAL TY LOSS. If prior to closing, improvements on said premises shall be destroyed or materially damaged by tire or other casualty, this agreement, at option of the Buyer, shall become null and void. ~~~/ i;h,!t 7l M()"'~'\L\, 3 \ I L(x8 10. POSSESSION. Buyer shall be entitled to possession on J61mM~-J..-2tJ()8. Seller shall have the right of possession until said date subject to the pal1ies executing a lease providing for no rent and Seller paying all utilities during its possession. 11. SELLER'S REPRESENTATIONS. Seller represents that: (a) It will maintain the property in present or better condition until time ofagreed possessIOn, (b) It has no knowledge or notice from any governmental agency of any violation of laws relating to the subject property. (c) The property is not encumbered by any leases, 12. SELLER'S ENVIRONMENTAL REPRESENTATIONS. Seller represents that to the best of his/her knowledge that he/she is not aware of existence of, or has caused or allowed to be caused, any environment condition (including, without limitation, a spill, discharge or contamination) that existed as of and/or prior to the closing date or any act of omission occurring prior to the closing date, the result of which may require remedial action pursuant to any federal, state or local law or may be the basis for the assertion of any third party claims, including claims of governmental entities except: This provision shall survive the closing and be in addition to Seller's obligation for breach of a representation or warranty as may be set forth herein. 13. DEFAULT AND ATTORNEY'S FEES. (a) Buyer's Default. If Buyer defaults hereunder, Seller's sole remedy shall be limitcd'to damages against Buyer in the liquidated amount of the earnest money previously paid the Buyer. Buyer and Seller intend that said amount constitutes liquidated damages so as to avoid other costs and expenses to either party in connection with potential litigation on account of Buyers' default. Buyer and Seller believe said amount to be a fair estimate of actual damages. (b) Seller's Default. rrScllcr defaults hereunder, Buyer shall have all the rights and remedies available allaw or in equity, IU,\!. I:ST\IT I'URCII,\SF i\.'iD S/\I,E MjR[[:\IENT Page 3 ufS t~K: Pacific Northwest Title -- ---_.~ (e) .\tt()rnc~"s FCl'S and Costs. In the evcnlof litig:llil1n to ent(lrCL' any uflhe terms lll' pru\isiuns ht.TL'in. e:1L'h pdrty shall pay all its uwn L'llsts and attllrl1t:y's teL's. 14. ~OTlCE TO SELLER This form contains prl)\'isions illr an agreement tl)r the purchase :lnd sale of 1'\: a 1 estale. Buyer makes I/O \\'(//'IWlfl' o/' /'<'Pl'cscllfaliol/ o;'allY killd that this rlll'lll, or any llf its pl'llvisions, is intended to meet the t;ldual and legal requirements (lfa particulJr transaction, or that it accurately reflects that laws of the State ofWnshington at the time you enter the agreement. This agreement has signiticant kgal and tinal1l.:ial consequences. By signing this agreement, Seller acknowkdges that Seller has or has had the opportunity to consult with an attomey regarding Sellers rights and obligations in this agreement. 15. BROKERS FEES/COMMISSIONS. Seller agrees to indemnity, defend and hold harmless Buyer with respect to any claim by any person or tmtity claiming through Seller to be entitled to a commission with respect to the transaction contemplated by this agreement. 16. NON-MERGER. The terms, conditions, and provisions ofthis Agreement shaH not be deemed merged into the deed, and shall survive the Closing and continue in full force and effect. '17. NOTICES, All notices required or pennitted to be given hereunder shall be in writing and shall be sent U ,S, certified mail, return receipt requested, or by facsimile transmission addressed as set forth below: (a) All notices to be given to Buyer shaH be addressed as follows: Mayor City of Bremerton 345 6th Street, Suite 600 Bremcrton, Washington 98337-1873 (b) All notices to be given to Seller shall be addressed as follows: l) (\:,.1 ~>3.((~_: ~J.~ \) V\ c' -., ( I.. Either party hereto may, by written notice to the other, designate su<.:h other address for the giving of notices as being nect:ssary, All noti<.:es shall be deemed given on the day such notice is personally served, or on the date of the facsimile transmission, or on the third day tollowing th<.: day such notic<.: is mailed in accordance with this paragraph. 18. ENTIRE AGREEMENT. This agreement, including all incorporated exhibits, constitutes the full Lllldcrstunding bet\veen seller und buyer. There have been no v<.:rbal or other agreements that modi fy th is agreement. RL\L [SL\T[ PLRCHASE AND SALE MiREE[\'IENT Page 4 of 5 19. BI:\'OINf; EFFECT :\ND SLRVI\':\L. This Agreement sl1:111 be binding upon pal1ics hereto ,tlld their respective heirs, SUccess\)rs and assigns: and the krIllS, conditiuns and prl.1\'isions of this Agn.:cment shall slll'\'ive the clusing ur this transadiun. 20. DATE OF i\H,:TljAL :\CCEPT..\NCE. POl' the purposes of this Agrecmcnt, the date uf mutual acceptance of this Agreement shall be the last date on which the p:1l1ies to this Agreement have executed this Agreement as indicated hclow. 21. EXPIRATION OF OFFER. Seller shall have only until 5:00 p.m. on March 30, 2007 to accept the purchase and sale agreement as written, by deliveling a signed copy thereof to the Buyer or the Buyer's agent. If Seller does not so deliver a signed copy within said period, this agreement shall lapse and all tight of the parties hereunder shall tenninatc. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date set forth below. BUYER: SELLER: THE CITY OF BREMERTON UNITED ASSOCIA nON LOCAL 26 BUILDING ASSOCIA nON (- . By: Cary Bozeman, Mayor By: Its: Dated: Daled:Dr ~'-V ;$ In-,,? APPROVED AS TO FORM: By:____ Roger A. Lubovich, City Attorney R::LcgarLcg~dTiks\Currcnt Active Files'Plumhers Union Property Pun:hasc\RFPSA-07.doc IU:..\L ISI!\n: PURClIASE AND SALE ACiR[E\fENT Page 5 uf5 DArE SUl3!\iIITTED: March 20. 2007 131 LL # 07- 0 ~70 AGENDA BILL CITY OF BREMERTON CITY COUNCIL (QA ................... ~~'.' 5~:;.3"""""""""""""""" d......................., SUBJECT: Ordinance amending Section Committee Meeting Da? ~~arch 28. 2007 2.09.020 of the BMC and Chapter 2.30 of the COUNCIL MEETING rilte: .'\priI4.~~ 1UCl...'y' /4:>\ ;:(007 BMC relating to City employees covered Depali6Kent: Financial Services' under the City's Civil Service System. }~cnter: Carol Conley. HR f Phone: 473-5347 SUMMARY: This Ordinance under Chapter 2.30 of the Bren~erton Municipal Code removes and fJ exempts from coverage in the Civil Service System all City ofJ3remerton employees currently covered by Civil Service except those full time paid employ~s, including Teamsters employees, employed by the Police Department and the Fire Departmehl; clarifies duties of the Civil Service Officer; and amends Section 2.09.020 Director of Financi~( Services and Division Managers- Positions created and appointment, to delete the ref1to Civil Service. ATT ACHMENTS: Ordinance and eXPlaIDlllmo. lJo. 500 3 FISCAL IMPACTS (Include Budgeted Alunt): None APPROVALS: It 17/ DEPARTMENT DIRECTOR: i/ CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: fosr-roneJ UV\f{' (p~ /0 7 COMMITTEE CHAIR COUNCIL PRESIDENT: . . J/. II . __/ // / . . .,)., '_....----;;<"', ./ / ./" /,' / I.f I Ii. ' /--17 .~~- --;~..;-' / - // r Y Ii? / . ". V i~,:,[ 0,/;>:,<:--, "1f.((1'1~1'//~('I/,I; If"L { 1...1 P I' J / CONSENT AGENDA 0 GENERAL BUSINESS 12{ PUBLIC HEARING_~ RECOMMENDED MpTION: Movc to approvc Ordinance Nr/j'o03, which amends Chapter 2.30 and Section 2,09.020 0[]1he Breme110n Municipal Code. COUNCIL ACTION: D Approve 0 Deny 0 Table o Continue 0 No Action 07.- (d-3 DATE SUBMITTED: 5/2/2007 BILL # AGENDA BILL CITY OF BREMERTON CITY COUNCIL "8 ........................................................................................ S UBJ ECT: Artist selection for the At"t,AA orK(11 J..c..w tnfDrc~eKf-C-(iJeyat 1025 Burwell Street to prepare artwork under the "1 % for the Arts" program. Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: 5/9/2007 5/16/2007 DCD & Al1s Comm Arts Commission Chair Priest 360.473.5283 Phone: SUMMARY: The Arts Commission is recommending that the City Council select artists for the preparation of public art at the A.fi1. !A.w G"/IIf. CI1.TY (1025 Burwell Street), a project that is subject to the 1 % for the Arts program. The Commission has conducted interviews and has entered into findings and recommends that the City Council chose James Kelsey and James Francis to prepare this artwork. Upon completion of a scope of work for the art the proposal will be submitted to the City Council for final approval. ATTACHMENTS: 1. Arts Commission Findings & Determination 2. Artist - James Kelsey Resume & Sample Works 3. Artist - James Francis Resume & Sample Works FISCAL IMP ACTS (Include Budgeted Amount): Selection of artists for the I % program will not have any financial impacts at this time. Staff will bring forward to Council at a future date a scope of work and contract following negotiation between the artists and the Arts Commission. APPROVALS: DEP ARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA 0 GENERAL BUSINES~ PUBLIC HEARING 0 RECOMMENDED MOTION: Move to accept the ~ndi~s of the Arts Commission to select James Kelsey and James Francis to prepare artwork for the. ~l;,;;(j~ at 1025 Burwell Street and authorize the Arts Commission to work with these at1ists to prepare a scope of work for public art for Council approval. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action FINDINGS AND DETERMINATION OF THE CITY OF BREMERTON ARTS COMMISSION Summary - The Arts Commission has entered into a process to select art for installation at the new public safety building at 1025 Burwell Street. The Commission opened a public call to artists, reviewed the artists' responses, conducted interviews, and is recommending that Council select artist James Kelsey to develop a sculpture for installation in the plaza at the front of the facility and artist James Francis of Phoenix Design to develop an artistic replica of the police shield in glass. The Commission recommends that the sculpture be the primary focus of the 1 % funds for this project with some of the funding to be used for the artistic glass piece. I. FINDINGS OF FACT 1. Project Description The new public safety building at 1025 Burwell Street project is subject to the 1 % for the Arts program, and as such the Commission is tasked with the duty of reviewing and recommending a public art piece for installation at this facility. In conjunction with the Police Chief, Craig Rogers, the Commission has reviewed the project and has determined that it is appropriate to choose public art that would be installed in the front of the building where the general public can enjoy and experience the work. 2. Procedural History 2.1 The call-to-artists was widely advertised in The Kitsap Sun's Arts & Entertainment section and the City's website. The call was closed on February 28, 2007 and 12 artists responded to the call. The artists responding had varied specialties from metal sculpture, painting, tile makers, and glass work. 2.2 The Commission and Chief Rogers interviewed two artists on April 2, 2007 (four artists were invited, two declined). 2.3 The Commission entered into findings on April 19, 2007 to recommend James Kelsey as the artist of choice to create a sculpture for installation in the front plaza of the building. 2.4 The Commission and Chief Rogers interviewed a glass artist on April 26, 2007 (two artists were invited to present their ideas and one artist declined). 2.5 The Commission entered into findings on April 26, 2007 to recommend James Francis of Phoenix Design as the artist of choice to create a replica of the police shield in glass for installation near the front entrance of the police facility. 3. Public Comment There has been no public testimony provided to the Commission regarding art at the public safety building. II. CONCLUSIONS & RECOMMENDATION The Arts Commission has reviewed the artist's submissions and is making recommendation to the City Council for artist selection. The Commission believes that art in public places differs from art in a museum or gallery and the installation at the public safety building should serve to establish focal points and enhancement to the public plaza area of the facility. The Arts Commission finds that James Kelsey, a local Kitsap County artist, who has extensive experience in producing high-quality sculptures, has the talent to prepare a piece that is appropriate for the site. The Commission finds that his experience in creating public sculpture, particularly his experience in creating a piece for the Tacoma police department, makes him an excellent candidate to prepare an installation for our public safety building. The Commission finds that James Kelsey can create a sculpture that is appropriate in scale, material, form and content for both its immediate and general social and physical environment. He has shown that his pieces have durability against vandalism, theft, weather and excessive maintenance costs. Therefore the Commission recommends that the City Council choose James Kelsey and make a motion to direct the Arts Commission to work with him to develop a sculpture for the new public safety building. The Arts Commission also finds that James Francis, a local Kitsap County artist, who has extensive experience in producing high-quality architectural glass art, has the talent to prepare a piece that is appropriate for the site. The Commission finds that his experience in creating public pieces makes him an excellent candidate to prepare an installation for our public safety building. The Commission finds that James Francis can create an artistic glass piece that is appropriate in scale, material, form and content for both its immediate and general social and physical environment. He has shown that his pieces have durability and beauty. Therefore the Commission recommends that the City Council choose James Francis and make a motion to direct the Arts Commission to work with him to develop a replica of the police shield in glass for the new public safety building. Approved by: Steve Priest, Chairman James Kelsey, Sculptor Resume 4761 Cottonwood Drive SE Port Orchard, W A 98366 I - 360 - 871 - 1499 www.jalllcskclscystlldios.colII ja III cs@jameskelscystlldios.com Personal: 1964, Born in Seattle, Washington 1977 - 1978, Lived in Tehran, Iran 1984 - ] 986, Lived in A viano, Italy 1998 - 2002, Studio Assistant to Stone and Glass Sculptor Will Robinson 2000 - 2002, Assistant to Glass Artist Marilee Moore 2002 - Present, Full-time Sculptor (aka: no 'day job') Career progression: Janitor, Fire Fighter, Commercial Pilot, Metal Fabricator, Artist & Sculptor Education 1996-1998, Olympic College, Bremerton, Washington, Welding Technology Program 1992, B.A., Eastern Washington University, Cheney, Washington, Communications 1990, A.S., Big Bend Community College, Moses Lake, Washington, Commercial Aviation Pu bliclnstallations: I have extensive expertise in working with all elements of Public Sculpture. I have worked with city governments, art commissions, and the general public, as well as school faculty members, police departments, and engineers in my roll as an artist. I work well with a variety of people and am able to handle unforeseen circumstances, if they arise, in order to keep a project on budget and on time. Bridgerland Applied Technology College, Logan, UT, "Eye of the Beholder, IV" Budget: $3 I ,000 Budget: $150,000 Budget: $14,000 Budget: $10,500 Budget: $4,300 Budget: $35,000 Budget: $35,000 Budget: $2,700 Budget: $19,000 Budget: $16,000 Budget: $7,500 Tacoma Police Memorial, Tacoma, W A, "Memories of Blue" Kitsap Fairgrounds, Bremerton, W A, "Eye of the Beholder, III" Kennewick Convention Center, Kennewick, W A, "Blue Trinity" Kitsap Transit Ferry Terminal, Port Orchard, W A, "Siren's Song" Government Center, Bremerton, W A, "And A Turning Point Was Realized" The Manor, Lynnwood, W A, "Eye of the Beholder" Manchester Library, Main Branch, Manchester, W A, "And Raven Let Loose the Moon" Edgcwood City Hall, Edgcwood, W A, "Aphrodite Rising from the Foam" The Manor, Lynnwood, W A, "Innuendo" Olympic Community College, Bremerton, W A, "and he offered the moon to the sky" James Kelsey Resllme Page 2 Galleries: Gallery Mack, Seattle, Washington Tri-Art Galler)', Richmond, Washington Invitational Shows and Awards: 2002-2003, Outdoors Art Exhibit, City of Issaquah, Washington 2002, Gardens of Art, Seattle Art Museum Supporters, Seattle, Washington 2002, Kitsap Golf & Country Club, Bremerton, Washington 2002-2003, Outdoors Art Exhibit, Carillon Point, Kirkland, Washington 2001-2002, Outdoors Art Exhibit, City of Redmond Sculpture Park, Redmond, Washington 200 I, Kitsap Golf & Country Club, Bremerton, Washington 200 J, Invitational Exhibition, Foster/White Gallery, Seattle, Washington 200 I, Gardens of Art, Seattle Art Museum Supporters, Seattle, Washington 2000, Artistic Design, Olympic Community College, Bremerton, Washington 2000, Iron Design Center, Seattle, Washington 2000, James F. Lincoln Arc Welding Foundation Award 1999, New Visions, Cafe Revista, Silverdale, Washinbrton 1999, W A VB Scholarship (Washington Award for Vocational Excellence) for sculpting 1998, Art on the Green, Coeur D' Alene, Idaho Private Collections: Jon and Sue Espenschied, Seattle, Washington Doug and Mary Dillard, Olalla, Washington Norbert Zahn, Lynnwood, Washington Dr. Ken Gitlin, Orchard Lake, Michigan Mel and Marie Block, Lake Havasu, Arizona Kelly Devin, Olympia, Washington Barbara Hammerman & Raymond Lavine, Gig Harbor, Washington ,.... - (3 ,.... ~f) 0 .... 8 0... ,.... ,.... .5") 1) Vi U (1:j c :0 ~ .... <lJ VJ ,.... ::l .~ .:.Jt. V t:: (1:j .~ E F <( <lJ 0 ,.... 0::: t: ~ ,.... 'lJ U VJ 'n ,.... > ,.... c (1:j 0 .... 0 1) 1 ~ 0 0 v .... ("'I ;z: co c o cn ,.... c F:-C ca lf1 '0 L1.. (1:j VJ VJ~ 0. >.. ..?:~ -- ..g ~ (1:jo cC;:; ~~~o AaSla)l sawer "Memories In Blue" I" 2006 - Tacoma Police Headq uarters Tacoma, Washington >- Q) en - Q) ~ en Q) E fa ~ "For All They Gave" 2006 Tacoma Police Headquarters Tacoma. Washington i ,\I,l.)'~\. 1~.\j:<gJ,:ji1(;I: l~.; l\A~~(;(lI,~! BELi.,..'~~J~~-;~;,~~~~~'~~---L-~I'(~I~I'~~~\--I~~\- i J-1:~-'~~~rlLLF: I~DL\:\{)LA i KLYPURT I f\1:\(:;ST()~ .\i.\ j';,TI::l, I fll.\Ll;\ !IURT (;;\,\11\1.1:., PUET Ll_:nLU\V i PORT ORCI-!:\RD! l'UlJLSBO: SF.:\BECI\. i :-;ILVERD.\LE I SOl:Tl-IW"{)I\TI-[ I Sll{)U.:\l\llSH leged ~ath ~t' Gets Ident rested )rth IVlason -schooler had o guns in the ; home, the ; office says. l.HLEY -1)](1 I'Llwl~ins j\iiddk lent \\:110 lll:n. h:!\',., "..:)'(':11- i lis!" l!J;ll il1C:!U(!i'd fellow ' ld i'l t(~;lCl:,_~r will J.ll' hl~]d : detenl ion ('l'ntt.'r ~llll il at :lV. .\'as ~l1T<:."kd \V<::c1tll'sd:I'.' !"leI' l~)llild the l..,tll~- \\-Ti1LL'l1, wbcl1 in- S;U(]t;lllS ~lh,J il [(';i(h- h) lll(: MiIS\XI CllUlJly ,nl ,'omcs llll till' lwd.'; l11 I ,:,'iili~r ;liTl~~aS in Kitsap frc,m l'hrt~:\ts ufvi- )l'C1S (hIIS,-' ;Irn;s!.s, ;l S(lllll1 Kii.'-;:lP ma/1 and d Brel1l(-'nn~\ ll1:lll, iT'ien- \pril 1G ma:;S:il.Tt~ ~1 Vir- n lh,:ir tbreats. Ie J.l-:....~~1r-okj ,';tlJd(~/1t is ) h~l\"l~ l11ildc W[lS c1iscov~ noy's t:'lrhl.'r. wllo passt-.d rlll;\ril)n tl) ::;clwol (!tTi- heritf's 'Jffk( W:1S noti~ p.m. -..Vt.:dllesd:ty and all 1 ]\1;\S(lll COlllll'y y 1::. l-~yrcl said. SEE LIST I An '5 CHOICE :ions Set aobal ning Peak !{E:\,lBO j :,1:':~ l:::dk.Vt~ the:: have :he nl'/SLf'n. of \\/h8t i he l1lrJst. ;.;-lobal :ll()\\, n l1isrory. spikc ~;5 a~:o by '~'):",Ct.'n~ l"1;f.:lll-:,yu.';c '.;;l.':(~:; hUll- s t~r(':;tl'r f"ll;l!l i"da','. t, ~tl1t. re:;'-::lrC'!lt~rs' n~- il: 1'111\ Sci- of t'nlp- oITa chain rv;\clic,n rl~- v.~ (!lwnrilies 1I(,':JI""I:"1I)n c,plwrC'. sr:r: CHOICE I .:\11 '5 GUIDE Dl AID G6 C5 C1 ill \.01 Di;.:;,?:-,t 83 AS :i: ,.",b A12 A4 "l\:j';\'l:.j(lll C5 :ACH US ,::I)(J) :;~;;-~)!joS \:~(:O) :',";';<::-lJ ~.~ alii ..,-,,- .~,._-~~~,.,......_~~.,.,.......~..,.~-_. '''-~~-'''--~-'---'_.~--'''~",.~, "'-.........'..'~-~-~.~..... ,."... ,~.~......~.~....~ ,..~..>- -~,-~.- ~.- '-"-,~ --""""--"-~"---' -----,.~. This Little Piggy Goes to the Market Artist James Kelsey kisses his "Solt'borg" (IS he loads her in- to his pickup tmck to be delivered to Pike's Place Murket I'd';:<,~ n',' "M,';/."-)O; J. Y,I-,i:IJl:I'. ' j-;I"('~,1' ~I:); :l 50-p0unrljiherf;hIs,<,; pig makes the last 1ft; of its trek from Port Orchard to downtown Seattle on Thursday. Th..' pig is the work (~r Port Orchard artist fames Kelsey, tvho was one of 100 artists selected to decorate II pif; in !I,m or o/Pike Place ,:\-!arkct's lOOth anniversary. Kelsey used his artistic license to turn his pig into a "sow- horp'," (I porcine t:ariation of l1 cyborg. The pig will go on display next month and be present at the market ill JU.'lc. A/ter the pigs make their rounds (~rSealtlc throughout the summer, the]' will be auctioned offin a bene- fit .t;J," the PiJ~c Plrlct: Market F')Wldatiofl. Kelsey hIlS other WI)J"kS on display in Kilsap, including at the Man- .:llestr!r LiiJrnry ane! the Norm Dicks Government Center in Bremcrto/I. Tale of a Tape Tangles UpGH School 1wo teen girls are caught kissing on video, fueling a controversy over privacy. ASSOCIATED PH.E~S GIG HARBOR Hestrictions on the LIse of st'ctlri- ty vidt~otape ha\'e been tightened at Gig Harbor High School after imag- es of two girls kissing were shown to the parent:-; of one of the g-irls, offi~ dais sa\'. Kdth' Nelson. d(~an of students ! at Gig Harhor High, saiJ he saw tht' students kissing and holding hands in the school's bus\' l'om- lllnns. eheckeJ u sllr\'cillancl~ cam- era and showed the parents t.he tape because tIll'\' had asked him a few weeks earli,:r to alert t.hem to any conduct hy their llaughter that was nut of the ordinary, Thc\' then transferred thdr dall~h~ ! ter to 'a schonl outsiue the Peninsllla I School District. Both girls srlid their privacy was in~ vaded nnd denied doing anything wrong. The kiss amounted to a quick "1Jl'ck:' said the g-irl who remains at the school. a 17-yenr~()ld senior. "W(' weren't dOing anythin~ in. appropriate, nothing anyone else woulchft uO," she said. Nl'lson said students could not cx~ peet privacy in n crowded place and maintnined that he would hnve t:1k- en the same action had tht, students kissing heen a boy and a ~irl. All internal investig-ution t'stab. Iished that Nelson had 110t violated district policy, Assistant School Su. pcrintendent Shannon Wiggs said. Even so, Principal Gn'g Schellen- berg said, schonl surveillance vid- eotape may now be used only for se- curity monitoring and Llisciplinc for act ions such as tre:-;passing. vandal- ism and fight ing. Kissing and other public Jisplays nf affection were at th~ time and re- main violiltions of school rules, but vinlators will first be givt'n \.,.<1rn- j ings und will be disciplineJ only f(.lr a second olTense, Scht'll(mbcrg said. In uddition. school cmployees can't share surveillance video in response to an open-cnded }Jrlrental requcst. In the case of thl' kis:;. he added, "the sanw informat.ion conld have been portrayed to t.he family with- out tllt'.video." Nelson said his first. obligation is to prll"ents. "They're paying good money for us to make t.heir kids good citj:Zt~ns." h(' said. "Whatever that meanl' to till' parents, I'll do it" IN SA'l'URDAY'S SUN Anchors (Almost) Away on Hood Canal Concrete cvlinders that will brace the east half of the bridge are on the verge of being sunk. No need to fret, Iholl~h. It's not in t.lIt' figurative sense. It's in a literal spnsc I hat p~lrt of lIw H(Hld Canal bridge project will soon sink. "St.arting next. wet'k, t lH'y'll actu- ;dly be putting anchors in place," s~1id Grt~g Meudows, Hood Canal briLige site manager. D",,;~~:_.~:.. .._ Yoga Going To the Dogs: Pet ')\\'11- ...rs bond wilh tlwir dl)g,<.; through yo- I By DEREK SHEPP.:\HU g;l cla~;s. I LIFE D~;lIFPP.\I..!'l", 1:IT" \ P'C' 11,: ,'"'' floating bridge that connects Kit- S~lp ~Hld Jdferson countil's. The first to uf the 20 anchors, weighing 1.000 tons each, are now moored in Port Gamble Bay. The finnllO are being constructed al Sp.1ttle's Todd Pacific Shipyards. Work on the project, which in~ valves updatillg the west ll<llf and 1=- ... t J) -fJ \1\ f .. .J .t. - N ..J ~ () ~ __,_.._::.:-..:.;~~.~~s~~._..::::.::::..~ _ c:-PHOENIX DESIGN;";> ~~~=~=B~===T-===:_-=Q_=:"C=~--'. A..._===~=~=_.~ ~'-.;::::::. 26006 Barber Cut-Off Rd PO Box 1693 Kingston WA 98346 360-297-6000 phone/Fax francis@tscnet.com Resume: .James Om Francis Education 1966-1971 Washington State University - Pullman, Washington BA Architecture and Fine Arts Professional experience 1978 to Present Phoenix Design Art Glass Studio & Gallery- Kingston, WA Design and Fabrication of Architectural Art Glass 1985 to Present Stained Glass Association of America Accredited Teacher in Abrasive Glass Etching and Design Additional professional activities 2007 Selected Artist: Bainbridge Island Public Arts Program Juried Artists Roster (JAR) Selected Artist: Kitsap County Arts Board, 1 % for the Arts Commission: Norm Dicks Govemment Center 2004 Featured Artist: "ETCHED GLASS: Technigues & Designs" by Norm Dobbins 2005 Collaborating Artists Mark Eric Gulsrud Tacoma, WA · Numerous commissions: churches, institutions, public projects Perry Stained Glass Issaquah, WA churches, public, private projects Mesolini Studios Bainbridge Island, WA churches, public, private projects Miciah Bienvenue Orcas Island, WA private projects David Franklin India nola, WA public projects Frank Samuelson Port Townsend, WA private projects SsgUlluf6caB1t Site-reBated Commissions Client list -2- 2005 Tacoma Digestive Disease Center Puyallup, WA - Cast Glass Installation 2005 Montecito Covenant Church - Montecito, CA - Flashed Colored Panels e 2005 Norm Dicks Center - Bremerton - 1 % for Art "Timeline of the Seasons 2004 Harrison Hospital- Bremerton - Triage Doors - "Falling Leaves" 2004 Windermere Professional Partners - Tacoma -Cast Glass & Steel 2004 Pierce Co. Administration Bldg. - Carved Glass Installation 2003 Tacoma Orthopedic Surgeons - Window Wall Etched Glass 2002 Delta Yachts/"Gran-Finale", Elevator Doors/Skylights-"Waveforms" 2001 Highline Childbirth Center - Burien - Reception Area 1999 Miller-Dwan Medical Cntr, Duluth, Minn -Spiritual Center Carved Glass 1998 Admiral Theatre Bremerton - Window Wall Cast Glass 1994 Mason General Hospital- Shelton -Reception "Salmon Run" 1985-2006 Churches: 1986 Oyster Bay Inn - Bremerton - Window Wall -" NW Landscape" St. Philomena DesMoines, WA; Miller-Dwan Medical Center Chapel, Duluth, Minn; St. Andrews Episcopal, Chelan, WA; St. Patrick, Merced, Ca; St. Timothy, Bishop, CA; St. Andrews, Sumner, WA; Veteran's Hospital Chapel, Steilacoom, WA; Our Lady of Perpetual Health, Bishop, CA; and many more... Comprehensive client list includes 3,800+ commissions over 27years Partial client list. others available 1 % Arts/ Kitsap County Arts Board Cheryl Marshall Design, Tacoma Jack Sarin Naval Architects, B.1. James Smalley, Gig Harbor Construction N.W., Gig Harbor Cheryl Marshall Design, Tacoma JPL Habitability, Bremerton Jones-Goodell Yachts, Tacoma Windermere P.P., Tacoma U S Navy / USS Carl Vinson Wayne Spears, Ketchikan / LA Delta Yachts, Seattle F-6 Const., Bainbridge Island Rice-Fergus Architects, Bremerton Paratransit Services, Bremerton Mueller Const., Bainbridge Island Northstar Yachts, Kalama Rob Bird, Poulsbo Dahl Glass, Poulsbo Oyster Bay Inn, Bremerton GTH Design, Poulsbo Kevin and Joni Prosser, Tacoma James D. Francis, Phoenix Design Windermere Offices Tacoma, Washington Pierce County Administrative Chambers Tacoma, Washington James D. Francis, Phoenix Design "Timeline of the Seasons" Norm Dicks Government Center Bremerton, Washington James D. Francis, Phoenix Design 'The Deep Forest" Private Residence Seabeck, Washington ,-.,~~..- . ,,.. .~/./ -"::/' /')/ 7- /L- 2007 -- .------ l.-E.lTe12.IN6 A ~ ~tLl) Slea SE/ o 1J6(L 0rJiS S co LoP-eUJ 6(jy5 5 ._-~---qtrfEO L-ETlEP-S 43'1 ~ ~n n- I 1 ~~-1 U ... -, /).!L/ ~/_/ / // /~( 2/L/./ /_/ ~. C-12-O>5 $E(!.TlO I-{ - 12AlSev It~ OF- 'BAASS GO~-o 0UrS5 eTOHeo lMAtt6 Ct)w{2.eD f5latteo HEDAt-ltJt..J ft; 3 II p ~ ~ f1 p... 'i <i) \{ E"R op erU1s5 ttJ PGf'r-rINUtJ\ S" t t... \/ ef.t.. M ElA-t.. Lel\el2-Il-lt1 se~Of.JDA~ '1 6 LAS S LA'-f eJ2- IlJ 15 {2A$$ ?12-lMAP-'{ ~CD bUrs 5 LA'1 e- D.. I tJ SIt-VeR 'S, 5TE::<;;l- lSE:i:EL. fV\olA;} r J ~ / Lf:/' (::l L-P65 I N$€f2-TS INTe; ge~ ~ Lc4-S Nvt[$ L~) I / /1 .. I I I I i I I I tsE.2=EL fv\ollnJ -r v:-- I} ;;/ ~' I/' PraT ~> 1/ L1JvS I~ ~r~ /' I --- ----.-----., v--- /-a&ltT~ // / ,~~~~ u ~ ( \. II (p3 vJAl.L AAc:r0lL5 ) f I , , t~eAT5 C!-) +-2/~ qeEL CU-eA-Ts &-) <n 12-~ Eve; Lo (!,~ ~/,,/ / /' t.II (-'-,-- --- I -v, (? POLICE FACILITY GLASS PROJECT QUOTE ..._>.~,..._.~,... <PIIOENIX DESlGN",- A---n-R----r-------.---- -c;---t:----A----S--s ----~_._-----_._....,.."._:-::::-:-~~--_.;~:~..----_~--------- 26006 Barber Cut-Off Rd PO Box 1693 Killgston WA 98346 360297-6000 fJhone/fax francis@tscnct,com .------- .--------- .----- --e ..- -- -- ----r:- ----.. Business NaJ11.e: Bremertoll Arts COJ11mission PO# Date: April 26, 2007 Bremcrton, Wasbillgtol~____ __________ Name: City of Brcmcrlon Police Facility 1025 Burwell Street --------.-.----- AJJn~ss: City, State, Zip: Bre111erton, W A Phone: Contact: Pam Ransier @ 360-473-5202 Cell: Fax: QUANITY DESCRIPTION Al\IOUNT , , Proposal to design, manufachue, aIul install an art glass project at J the Hremerton Police Facility consisting of the following: i f Location: Exterior Entrance Wall J Design an assembly of carvell ancl cast 3/8" plate glass using I Silvered bacl~ing. Panel size is approx. 43" x 63" ! I Replicate tIle silvere,l portion of the Police Badge , i Design an overlay glass assembly using various forme,l an,l I Etched colored glass elements. , , , , These various elements replicate artistically the other i i Badge elements shown I . , , Attach Waterjet-cut Metal Lettering elements in raised profile I NOTE: wonting as specified by the Client I Fabricate a Stainless Steel Bezel Mount amI steel cleats , , . . , To mount final assembly to wall , i I Delivery amI Installation indul},"} in this .Q!ice , , , , , Sull-Total: $ 9,225. i 00 Tax: 793. i 35 Total: $ 10,018. i 35 ----------- , 1--_____ , --Sl~')ject t(~llIh;al~cceptance ofAlot;(;oHlmission contract ~-~i L--.______ _. ~--- Approved By Tllanl~ you \ ' t DATE SUBMITTED: April 20,2007 BILL# D7-Id.-Lj ("C AGENDA BILL CITY OF BREMERTON CITY COUNCIL ........................................................................................ SUBJECT: Ordinance No. -50 (d.- establishing a Cable Television Franchise Agreement with Comcast of Washington IV, Inc. Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: Phone: 5/2/2007 5/16/2007 Financial Services Laura Lyon 473-5722 SUMMARY: Culminating over a year of negotiations, the City and Comcast of Washington IV, Inc. have finalized a franchise agreement that grants Comcast a non-exclusive franchise to operate a cable television system within the City for the next five year period. Provisions in this agreement ensure the availability and reliability of the cable system within Bremerton, establishes customer service standards to be adhered to, provides for a wide range of programming services to be offered, establishes conditions and requirements for the grantee's use of the City's rights-of-way, and ensures the availability of local programming (including public, educational, and governmental access programming). ATTACHMENTS: Explanatory Memo and Franchise Agreement Ordinance No, 50l:;L FISCAL IMPACTS (Include Budgeted Amount): Provides 3.5% franchise fee revenues, lump sum PEG access fee revenue payment of $115,000, and a one time capital contribution of $150,000 to be used for the purposes of relocating the B KAT production studio and head end connection from 1225 Sylvan Way to the 7266 Tibardis Rd. NW location. The 2007 budget included these revenue expectations with the exception of the $150,000 for the construction of a new studio at Tibardis. APPRO V ALS: DEPARTMENT DIRECTO CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: ~ COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA 0 GENERAL BUSINESS~ PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve Ordinance No. 501;L which establishes a non-exclusive franchise agreement authorizing the operation of a cable television system within Bremcrton with Comcast of Washington IV, Inc. COUNCIL ACTION: 0 Approve 0 Deny 0 Table D Continue D No Action m~. 1.[1 II :'1 1il . .' . ,:., ":'i: ..\ '~'::"':!'. Memorandum To: City Council Members Mayor Cary Bozeman Laura Lyon, Director of Fin~~1 selVices~ Paula Johnston, City Clerk 'V "? Summary of Provisions of the Cable Television Franchise Agreement with Comcast From: Re: Date: April 20, 2007 The current cable television franchise agreement with Comcast expires in July 2007. The City retained the services of River Oaks Communications Corporation to assist in developing a new franchise agreement with Comcast. The informal process to negotiate an agreement was put into motion in early 2006. Surveys of users and interested parties were conducted in February 2006 and public meetings were held on March 2, 2006 to develop the needs and issues to be addressed. Armed with this information, the City staff began discussions with the Comcast representative on May 25th 2006 and has proceeded to work through the development of a non-exclusive franchise agreement to operate a cable system within the City for a five year period. This franchise agreement provides capital funding for BKA T, funding for relocation of the BKA T studio to the Tibardis office, and provides for franchise fees that cover the remaining operational cost of BKA T - with the residual amount (after covering such costs) being transferred to the General Fund to assist in covering administration and engineering costs related to the cable franchise. The estimated annual positive impact to the General Fund is $75,000 (transfer of net franchise fees and removal of BKA T operations funding previously paid by the General Fund). The total capital funding provided to BKAT is $265,000 (inclusive of the studio relocation contribution) and the franchise fee revenue in combination with service contracts already established with the County and City _ covers all BKA T operating costs projected for the next five year period. The provisions of this franchise addresses the major issues and needs identified in the preliminary public and stakeholders meetings and supports the BKA T financial plan. Staff recommends that the City Council approve this franchise agreement as negotiated. The following is a summarized recap section-by-section of the franchise agreement: SECTION 1 - DEFINITIONS Pertinent terms, phrases and words, are defined including the following key items: · "Access Channel" - a channel designated to provide Public, Education, and Government access programming on a noncommercial basis · "Channel" - Much broader definition that covers whether it is by analog or digital signal · "Gross Revenues" - broader definition retained · "Interconnect" or "Interconnection" - provision of Access Channel programming to the geographically contiguous cable system, including support and components necessary to such provisioning · "Noncommercial" - in the context of Access Channels does not preclude soliciting and receiving contributions used to produce and transmit video programming on the Access Channel, or from acknowledging a contribution, in the manner of the Corporation for Public Broadcasting or some similar manner, subject to applicable law. SECTION 2 - GRANT OF FRANCHISE Grants to Comcast a nonexclusive authorization to make use of the City's right- of-ways to construct, operate, maintain, reconstruct, repair and upgrade the cable system for the purpose of providing cable television services. Provides for a franchise term of five years with a five year renewal option upon mutual agreement of the parties, SECTION 3 - FRANCHISE FEE AND FINANCIAL CONTROLS This section provides for a franchise fee to be paid to the City of 3.5% of gross revenues for the term of the agreement. Payments are to be made to the City on a quarterly basis accompanied by a quarterly franchise fee report that includes the gross revenue amounts of the cable system. Financial records are subject to City review and audit upon 30 days prior written notice. Interest will be assessed on late payments (more than 45 days overdue) based upon the then current prime rate as listed in the Wall Street Journal. This section also acknowledges the current federal law limits to the City's collection of a franchise fee to no more than 5% of gross revenues in any 12 month period. The payment of PEG funding and other capital support for Access Channels are excluded from the definition of franchise fees, as are payments to the City by Comcast for utility taxes, business & occupation taxes, or similar taxes. There is no offset of the franchise fee for these other payment obligations. In the event that franchise fees are prohibited by law or regulations, Comcast is obligated to pay the City that amount, if any, which is determined by applicable law. Finally, this section states affirmatively that franchise fees shall be in addition to any and all taxes or other levies or assessments which are now or in the future required to be paid by 2 businesses by any law of the City, State, or federal government - including, without limitation, sales, use, utility and other taxes, or business license fees. SECTION 4 - ADMINISTRATION AND REGULATION Outlines the City's authority to administer and enforce the provisions of this franchise including rate regulation and performance evaluation process. Establishes that rates and charges will be published, made available to the public, and shall be non-discriminatory. SECTION 5 - FINANCIAL AND INSURANCE REQUIREMENTS This section covers indemnification provisions and performance bond/insurance requirements. SECTION 6 - CUSTOMER SERVICE '" Section 6 establishes Comcast's responsibility for effective customer response regarding service and repair requests, customer privacy, customer service locations, refund policy, termination charges and equipment return, and customer service agreement and manual. Exhibit I - "Customer Service Standards" are incorporated by reference into the agreement. SECTION 7 - REPORTS AND RECORDS Describes the minimum types of information required to be maintained by Comcast and provides for the City to have access to (and the right to inspect) Com cast's books and records within 30 days of any such request. Requires the franchise grantee to keep an accurate and comprehensive compilation of customer complaints received and their actions in response and to provide a summary report of such to the City on an annual basis - including the average response time for service calls. SECTION 8 - PROGRAMMING Outlines the expected broad categories of programming and special services expected to be provided to subscribers with provisions for notification to the City if any broad category is to be deleted. This section also provides for Comcast to provide, without charge, a standard installation and one outlet of basic cable service to existing City buildings or those hereinafter constructed or acquired by the City - included under this provision are fire stations, police stations, libraries and schools provided they are already served or are within 125 aerial service feet or 60 underground trench feet (a standard installation) of the cable system _ excluding buildings that house or occupy prison/jail populations. SECTION 9 - PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS Defines PEG access including the retention of the current BKAT channel as the primary channel of PEG with an additional PEG channel provided triggered by 3 the City requesting such an addition and predicated on a formula based review demonstrating locally scheduled original programming on the first PEG channel has reached 48 hours per week - 80% of the time between 10 am and 10 pm. This section also provides for the provision of one new scrambled channel to the City at no charge. The scrambled channel provides connection and transmission capabilities to support videoconferencing and teletraining - among other applications. Financial support for PEG capital and equipment funding needs is provided through a subscriber pass-thru fee of $0.25 per month per customer which is to be paid substantially up front to the City in the amount of $115,000. If the franchise renewal option is exercised, this obligation would be renewed in the second five year period with a like payment required at that time. In addition, this section provides for the continuation of the return connectivity at the Norm Dicks Government Center, and the current studio location at Sylvan Way until April 15, 2008. Upon request of the City a return connection will be provided at the Fairgrounds site (Tibardis building location) for the purposes of relocating the studio from Sylvan Way to the administrative building location at Tibardis Rd. Com cast will continue to provide the current PEG Access studio location at 1225 Sylvan Way until April 15, 2008. Comcast will pay the City $150,000 (45 days after the franchise agreement is approved by both parties) as an additional capital contribution for the purposes of constructing a new PEG Access Studio. The City intends to relocate the studio at the Tibardis Rd. site - combining the current administrative office with the production and connection equipment location. The City will be required to move out of the current studio location by April 15, 2008. An interlocal agreement with the County providing permission to construct an addition to the Tibardis Rd. building (owned by the County) and to provide use of the facilities for a sufficient period of time to get sufficient value from the investment of capital dollars will be necessary and is being worked on by staff concurrent to this franchise agreement approval process. SECTION 10 - GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION Addresses the requirements that must be met to construct, alter or maintain the cable system within the City right-of-way including compliance with applicable local permits and regulations, undergrounding, non-interference and notice procedures, tree trimming, restoration to public and private property, relocation of facilities in public right-of-way, safety requirements, and the annual provision of information by Comcast of their trunk and distribution facilities within the franchise area in a standard geographic information system (GIS) format to the City. SECTION 11 - CABLE SYSTEM DESIGN Describes the technical standards and performance standards of the cable system. The cable system as currently installed meets or exceeds FCC technical quality standards regardless of the manner in which the signal is transmitted. Comcast is required to maintain the system in a manner consistent 4 with, or in excess of, these specifications throughout the term of the franchise, and commits them to make future construction decisions upon legitimate engineering decisions precluding them from consideration of income level of any particular community in the franchise area. SECTION 12 - SCRAMBLED CHANNEL AND INSTITUTIONAL NETWORK This section provides for a scrambled, encoded digital channel to be provided by Comcast at their expense to the City's origination site within four months of the acceptance of this franchise agreement. Access to the scrambled, encoded digital channel is limited to those locations that contain uniquely coded converters. Comcast is to provide 18 converters at their expense to the City. Additional converters may be obtained at the City's expense upon request. Members of the public will be unable to discern the programming provided over the scrambled channel. Programming provided over this channel shall originate from the City, be transported upstream over the connection to the head end and then be broadcast downstream as a digital channel that requires a converter box to decode. The 18 converter boxes provide scrambled channel access to a variety of City and general public sites including but not limited to the government center building, parks, public works, fire, police, conference center, libraries, senior center, Admiral Theatre, and municipal court sites. Finally, this section incorporates the City's current I-Net Maintenance Agreement by reference and attachment and provides for the provisions to apply to all currently listed locations and any sites that may be subsequently added pursuant to the terms of this franchise agreement. The City may request additional I-Net connections in future periods and will be responsible to pay the incremental costs over a standard installation connection. SECTION 13 - TECHNICAL STANDARDS Specifies that the cable system technical performance shall meet or exceed all applicable standards authorized by the FCC, or required by law, regardless of the transmission technology utilized and that Comcast will conduct tests on system performance as required by the FCC. Comcast is required to take prompt measures as necessary to correct any performance deficiencies fully and to prevent their recurrence. SECTION 14 - SERVICE EXTENSION Defines standard installation criteria for new subscriber service extensions in the City (generally 125 foot aerial drop or 60 foot underground drop connections from existing cable system) which are to be provided at request without cost to the subscriber. Incremental cost recovery for non standard installations is described and permitted. 5 SECTION 15 - STANDBY POWER AND EAS Addresses requirement to be capable of meeting all federal and state requirements for the provision of Emergency Alert Systems and to provide adequate standby power generating capacity at the cable system head end to cover at least 12 hours of emergency operation, as well as standby power of lesser durations throughout the distribution system, nodes, and hubs. SECTION 16 - FRANCHISE BREACHES; TERMINATION OF FRANCHISE Provides the terms and conditions under which the franchise may be terminated including breaches of the terms of the franchise if such default is not properly cured and the liquidated damages to be paid by Grantee upon failure to comply with any of the material provisions of this franchise. SECTION 17 - FRANCHISE TRANSFER Change of ownership provisions - requires City consent to transfer the franchise agreement to a new entity. SECTION 18 - PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND NOTICES Requires Comcast to comply with federal, state, and local employment laws. Specifies the mailing/contacting address for franchise agreement correspondence. SECTION 19 - MISCELLANEOUS PROVISIONS General contract provisions related to governing laws, venue for disputes, severability, force majeure, etc. We are asking for the City Council to approve this franchise agreement at its May 16th business meeting. 6 ORDINANCE NO. ':)0 \ ~ AN ORDINANCE granting Comcast of Washington IV, Inc., the right, privilege, authority and franchise to construct, operate, maintain, reconstruct, repair and upgrade the Cable System upon, over, under, along, across and through the Franchise Area for the purpose of providing Cable Services, subject to the terms and conditions set forth in this Ordinance and applicable law. WHEREAS, the City has reviewed Grantee's performance under the prior Franchise and the quality of service during the prior Franchise term, has identified the future cable-related needs and interests of the City and its citizens, has considered the financial, technical and legal qualifications of Grantee, and has determined that Grantee's plans for constructing, operating and maintaining its Cable System are adequate, in a full public proceeding affording due process to all parties; and WHEREAS, the public has had adequate notice and opportunity to comment on Grantee's proposal to provide cable television service within the City; and WHEREAS, the City has a legitimate and necessary regulatory role in ensuring the availability of cable communications service, and reliability of cable systems in its jurisdiction, the availability of local programming (including public, educational and Governmental Access programming) and quality Customer service; and WHEREAS, diversity in Cable Service programming is an important policy goal and the Grantee's Cable System should offer a wide range of programming services; and WHEREAS, Subscriber interests and competitive factors within the Cable Service market should be an essential characteristic of this Franchise; and WHEREAS, the City is authorized by applicable law to grant one or more nonexclusive Franchises to construct, operate and maintain cable systems within the boundaries of the City; and WHEREAS, in consideration of the mutual promises made herein, and other good and valuable consideration as provided herein, the receipt and adequacy of which are hereby acknowledged, City and Grantee do hereby agree as follows; NOW THEREFORE THE CITY COUNCil OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOllOWS: Cable Television Franchise T ABLE OF CONTENTS INTRODUCTORY ST A TElVlENT ........................... ......... ........ ............. ..................... 7 SECTION 1. DEFINITIONS........... ..... .......... ......... .., ...... '" ............ .... ..... ................ 8 "Access or Access Programming" ................................................................................. 8 "Access Channel" ., . " . '" ..... ...... . " .,. . ........... . ..... ... '" ...... .., . ..... .. ........... ..' '" . " ..... " .... .,. 8 "Access Fees" ......................................................................................................... 8 "Activation" or "Activated" ........................................................................................ 8 "Atliliated Entity" or "Affiliate" .................................................................................. 8 "Bad Debt" ............................................................................................................ 8 "Basic Service" .............................. ......................................................................... 9 "Broadcast Signal" ................................................................................................... 9 "Cable Act" .................................. .......................................................................... 9 "Cable Operator" ..................................................................................................... 9 "Cable Service" ....................................................................................................... 9 "Cable System" ............................. .......................................................................... 9 "Channel" .............................................................................................................. 9 "City" ............................................................... .................................................... 9 "Customer Service Representative" .............................................................................. 9 "Designated Access Provider" .................................................................................... 10 "Downstream Channel" .................... .................................................... ....................10 "Dwelling Unit" ..................................................................................................... 10 "Expanded Basic Service" ......................................................................................... 10 "FCC" ................................ ......... .............................. ..........................................10 "Fiber Optic" ......................................................................................................... 10 "Franchise" ........................................................................................................... 10 "Franchise Area" .............. ..... ................................................................................. 10 "Franchise Fee" ...................................................................................................... 10 "Grantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 11 "Gross Revenues" .................... ............................................................................... 11 "Headend" or "Hub" ................................................................................................ 11 "Incremental Costs" ................................................................................................. 11 "Institutional Network" ............................................................................................. 11 "Interconnect" or "Interconnection".............................................................................. 11 "Leased Access Channel........................................................................................... 12 "Locally Scheduled Original Programming" ................................................................... 12 "Noncommercial" ................................................................................................... 12 "Normal Business Hours"...... ........................ ........... ................... ...... ......... ....... ........12 "N ormal Operating Conditions" .................................................................................. 12 "Pay Service" or "Premium Service" ............................................................................12 "Person" .., .. ...... .... ... .... ... ... .. . .... ... . ... ... . ., .. . .... .... ... ... ... .. . ..... .. . .. .... .. . . ....... ..... .. '" .. .., 12 "Qualified I-NET Users"..... ....................................... ............ ................... ...... ..........12 " Rights-of-Way" ..................................................................................................... 12 2 Cable Televi....;on Franchise "School" .......... ..................................................................................................... 13 "S . I '" 13 erVlce nterruptlon .............................................................................................. "State" ................................................................................................................. 13 "Subscriber" or "Custolner" .............................................. .................. ........... ............13 "Tier" .................................................................................................................. 13 "V'd P '" 13 1 eo rogran1n11ng .............................................................................................. SECTION 2. GRANT OF FRANCHISE.................................................................... 13 2. 1 Grant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 13 2.2 lJse of Rights-of-Way........ ............................................................................... 14 2.3 Term.......................................................................................................... 15 2.4 Effective Date............................................................................................... 15 2.5 Franchise Nonexclusive................................................................................... 15 2.6 Grant of Other Franchises................................................................................ 16 2.7 Familiarity with Franchise................................................................................ 16 2.8 Effect of Acceptance....................................................................................... 16 2.9 Police Powers............................................................................................... 17 2.10 Franchise Area.............................................................................................. 17 SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS................................... 17 3.1 Franchise Fee............................................................................................... 17 3.2 Payments ..................................................................................................... 17 3.3 Acceptance of Payment.................................................................................... 17 3.4 Quarterly Franchise Fee Reports ........................................................................ 17 3.5 Audits......................................................................................................... 18 3.6 Financial Records........................................................................................... 18 3.7 Interest on Late Payments......... ................. .......................... .............................18 3.8 Maximum Franchise Fee... ............................................ ..... .............. ................ 18 3.9 Additional Commitments Not Franchise Fees......................................................... 19 3.10 Payment on Termination..................... ................................................. ............19 3.11 Service Packages............................................................................................ 19 3.12 Additional Compensation ................................................................................. 19 3.13 Tax Liability................................................................................................. 19 SECTION 4. ADMINISTRATION AND REGULATION...............................................l9 4. 1 Rates and Charges.......................................................................................... 19 4.2 No Rate Discrimination................................................................................... 20 4.3 Filing of Rates and Charges.............................................................................. 20 4.4 Time Limits Strictly Construed.......................................................................... 20 4.5 Performance Evaluation................................................................................... 20 4.6 Leased Access Channel Rates............................................................................ 21 4.7 Late Fees..................................................................................................... 21 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS.................................. 21 5.1 Indemni tication ............................................................................................. 21 5.2 Insurance Requirements................................................................................... 22 3 Cable TelevisioJl FraJlchise 5.3 Security........ ............................................................................................... 24 SECTION 6. CUSTOIVIER SERVICE....................................................................... 25 6.1 Customer Service Standards.............................................................................. 25 6.2 Subscriber Privacy......................................................................................... 25 6.3 Customer Service Location(s) ............................................................................ 25 6.4 Customer Service Agreement and Manual............................................................. 26 SECTION 7. REPORTS AND RECORDS.................................................................. 26 7. 1 Open Records ............................................................................................... 26 7.2 Contidential/Proprietary Informaion " . ... .... ., ....... '" .. .. .... ........... ......... ... ....... .. .. '" . 27 7.3 Records Required........................................................................................... 27 7.4 Copies of Federal and State Reports.................................................................... 27 7.5 Complaint File and Reports............................................................................... 28 7.6 Inspection of Facilities and Annual Meeting........................................................... 28 7.7 False Statements............................................................................................ 28 SECTION 8. PROGRAMMING............................................................................... 28 8.1 Broad Programming Categories.......................................................................... 28 8.2 Deletion of Broad Programming Categories........................................................... 29 8.3 Obscenity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 8.4 Services for the Disabled.................................................................................. 29 8.5 Parental Control Device................................................................................... 29 8.6 Complementary Cable Service........................................ ...................................29 8.7 New Technology............................................................................................ 30 SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS.................... 30 9.1 Access Channels........................ ...............................................................;.... 30 9.2 Triggers for Additional Access Channels .............................................................. 31 9.3 Management and Control of Access Channels........................................................ 31 9.4 U nderutilized Access Channels.......................................................................... 31 9.5 Access Channel Identification/Location/Relocation/Bill Insertions................................ 31 9.6 Access Interconnections............................................................. ......................32 9.7 Support for Access Capital Costs........................................................................ 32 9.8 Access Channels On Lowest Tier......................................... ........... ...................33 9.9 Technical Quality........................................................................................... 33 9.10 Return Connectivity........................................................................................ 33 9.11 PEG Access Studio Location............................................................................. 34 SECTION 10. GENERAL RIGHT -OF -\V A Y USE AND CONSTRUCTION...................... 34 10.1 Construction. .. ..... .. ..... ....... .. ..... .. ...... ... ...... .. .. .. .. .. . .. . .... .... . .. ........ .. . .. .. . .. ..... ... 34 1 10.2 Location of Facilities...................................................................................... 35 10.3 Restoration of Rights-of- Way.......... ... .. . ..... .... ...... ... . ............ ... ..... .. . ... .. .. . .. ........ 35 10.4 Maintenance and Workmanship.............................................................. ~.. ... .... .. 36 10.5 Acquisition of Facilities................................................................................... 36 10.6 Reservation of Rights-of-Way............................................................................ 36 4 Cable Television Franchise 10.7 Rights-of- W ay Vacation................................................................................... 37 10.8 Removal of Discontinued Facilities ..................................................................... 37 10.9 Hazardous Substances ..................................................................................... 38 10.10 Undergrounding of Cable................................................................................ 38 10.11 Codes........................................................................................................ 39 10. 12 Construction and Use of Poles .......................................................................... 39 10.13 Tree Trinllning ............................................................................................. 39 10. 14 Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 10.15 Stop Work................................................................................................... 40 10.16 Work of Contractors and Subcontractors.............................................................. 40 10.17 GIS Mapping............................................................................................... 40 SECTION 11. CABLE SYSTEM DESIGN ................. ............................ ........... ... ......41 SECTION 12. SCRAMBLED CHANNEL and INSTITUTIONAL NET\VORK ..................41 12.1 Scrambled Channel......................................................................................... 41 12.2 Institutional Network...... .............. .................................................................. 42 SECTION 13.TECHNICAL STANDARDS.................................................................. 42 13.1 Technical Performance.................................................................................... 42 13.2 Cable System Performance Testing..................................................................... 43 SECTION 14. SERVICE EXTENSION...................................................................... 43 14.1 Service Availability........................................................................................ 43 SECTION 15. STANDBY POWER AND EAS ............................................................44 15.1 Standby Power ............. ................................................................................. 44 15.2 Emergency Alert Capability............................................................ ..................44 SECTION 16. FRANCHISE BREACHES; TERMINATION OF FRANCHISE.................. 44 16.1 Procedure for Remedying Franchise Violations ...................................................... 44 16.2 Alternative Remedies ...................................................................................... 46 16.3 Assessment of Liquidated Damages and Letter of Credit........................................... 46 16.4 Revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 16.5 Purchase of the Cable System............................................................................ 49 SECTION 17. FRANCHISE TRANSFER... ... ... ........... .............. ......... .......... .... .......... 49 17.1 Transfer of Ownership or Control....................................................................... 49 SECTION 18. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND NOTICES............................................................................................................ 51 18.1 Preferential or Discriminatory Practices Prohibited.................................................. 51 18.2 Notices....................................................................................................... 51 SECTION 19. MISCELLANEOUS PROVISIONS....................................................... 51 19.1 Cumulative Rights.......................................................................................... 51 5 Cable Televbdoll Frallchise 19.2 Costs to be Borne by Grantee ...... ............... .... ........ ..... .......... .............. ....... .......52 19.3 Binding Effect............................................................................................... 52 19.4 Authority to Amend........................................................................................ 52 19.5 Venue............ .... ....................... ...................... ................. ..................... ......52 19.6 Governing Laws............................................................................................ 52 19.7 Captions. .. .,. ... .. '" . .. .. . " .,. .. . . ., . . ., '" '" . ..... .. ..... .., . . . .. .., " . '" . . . . .. .. . " .,. ., '" ., .. ... ., " . 52 19.8 No Joint Venture........................................................................................... 52 19.9 Waiver ... ....... ..... ... ... ........... ...... ....... ....... ..... .., ............ .., ... .......... .,. .............52 19.10 Severability.................................................................................................. 53 19.11 Compliance with Federal, State and Local Laws..................................................... 53 19.12 Force Majeure............................................................................................... 53 19.13 Entire Agreement.. ........ ...... ................ .. ............ '" ..... .... " . ........ '" .. ................. 53 19.14 Attorneys' Fees............................................................................................. 53 19.15 Action of the City or Grantee............................................................................ 53 19.16 Acceptance................................................................................................... 53 SECTION 20. SEVERABILITy............................................................................... 54 SECTION 21. EFFECTIVE DATE........................................................................... 54 Acceptance ........................................ ................................................................... 55 Exhibits: Exhibit I - Customer Service Standards Exhibit II - I-Net Maintenance Agreement 6 Cable Television Franchise INTRODUCTORY STATEMENT CABLE TELEVISION FRANCHISE. This Cable Television Franchise is entered into in Bremerton, Washington, this _ day of June, 2007, by and between the City of Bremerton, Washington a municipal corporation, hereinafter ("City") and Comcast of Washington IV, Inc. who is hereinafter known as ("Grantee"). City and Grantee are sometimes referred to hereinafter collectively as the "parties." 7 Cable Televisioll Frallchise SECTION 1. DEFINITIONS For the purposes of this Franchise and the Exhibits attached hereto the following terms, phrases, words and their derivations shall have the meanings given herein when indicated with the text of the Franchise by being capitalized. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined, or those detined, but not capitalized within the text shall be given their common and ordinary meaning. The word "shall" is always mandatory and not merely directory. "Access" or "Access Programming" includes Public Access, Educational Access and Governmental Access, collectively, and means the availability for Noncommercial use by various governmental and educational agencies, institutions and organizations, in the community, including City and its designees, of particular channels on the Cable System to receive and distribute Video Programming to Subscribers, as permitted under applicable law, including, but not limited to: (A) "Public Access" means Access where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the City or its designee. Such rules shall not be designed to control the content of public access programming. Such rules shall also address the extent to which and manner in which members of the general public who are not residents of the City may be programmers on the Access Channel. (B) "Educational Access" means Access where Schools are the primary users having editorial control over programming and services. (C) "Governmental Access" means Access where governmental institutions or their designees are the primary users having editorial control over programming and services. "Access Channel" means any Channel, or portion thereof, designated for Noncommercial Access purposes or otherwise made available to facilitate Access programming. "Access Fees" means the Capital Contribution paid to the City by the Grantee in accordance with section 9.7. "Activation" or "Activated" means the status of any capacity on or part of the Cable System wherein the use of that capacity or part thereof may be made available without further installation of Cable System equipment other than Subscriber premise equipment, whether hardware or software. "Anil iated Entity" or "Anil iate" when used in connection with Grantee means any Person who owns or controls, is owned or controlled by, or is under common ownership or control of Grantee. "Bad Debt" means amounts lawfully owed by a Subscriber and accrued as revenues on the books of Grantee, but not collected after reasonable efforts by Grantee. 8 Cable Television Franchise , "Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of local television Broadcast Signals and Access programming. "Broadcast Signal" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System off-the-air by antenna, microwave, satellite dishes or any other means. "Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and as amended by the Telecommunications Act of 1996, and any amendments thereto. "Cable Operator" means any Person or group of Persons, including Grantee, who provides Cable Service over the Cable System and directly or through one or more Affiliates owns a signiticant interest in such Cable System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of the Cable System. "Cable Service" means the one-way transmission to Subscribers of Video Programming, or other programming service and Subscriber interaction, if any, that is required for the selection or use of such Video Programming or other programming service. "Cable System" means a facility, .consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide Cable Service that includes Video Programming and that is provided to multiple Subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves Subscribers without using any public right-of-way; (3) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 V.S.C. Section 201 et seq.), except that such facility shall be considered a cable system (other than for purposes of Section 621(c) (47 V.S.C. Section 541(c)) to the extent such facility is used in the transmission of Video Programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with Section 653 of the Cable Act; or (5) any facilities of any electric utility used solely for operating its electric utility systems. When used herein, the term "Cable System" shall mean Grantee's Cable System in the Franchise Area unless the context indicates otherwise. "Channel" means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof. "City" means the City of Bremerton, Washington, a municipal corporation, of the State of Washington. "Customer Service Representative" (or "CSR") shall mean any person employed by Grantee to assist, or provide service to, Customers, whether by answering public telephone lines, writing 9 Cable Televb;ion Franchise service or installation orders, answering Customers' questions, receiving and processing payments, or performing other Customer service-related tasks. "Designated Access Provider" means the entity or entities designated by the City to manage or co-manage Public, Educational or Governmental Access Channels and facilities. The City may be a Designated Access Provider. "Downstream Channel" means a Channel capable of carrying a transmission from the Headend to remote points on the Cable System. "Dwelling Unit" means any building or portion thereof that has independent living facilities, including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy. "Expanded Basic Service" means cable programming services not included in the Basic Service and excluding premium or pay-per-view services. "FCC" means the Federal Communications Commission or its lawful successor. "Fiber Optic" means a transmission medium of optical fiber cable, along with a1\ associated electronics and equipment capable of carrying electric lightwave pulses. "Franchise" means the document in which this definition appears, that is executed between City and Grantee, containing the specific provisions of the authorization granted and the contractual and regulatory agreement created hereby. "Franchise Area" means the area within the jurisdictional boundaries of the City, including any areas annexed by City during the term of this Franchise. "Franchise Fee" includes any tax, fee or assessment of any kind imposed by the City on the Grantee or Subscribers, or both solely because of their status as such. The term Franchise Fee does not include: (A) Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment on both utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is unduly discriminatory against Cable Operators or cable Subscribers); (B) Capital costs that are required by the Franchise to be incurred by the Grantee for Public, Educational or Governmental Access facilities, including the support required in Section 9.7. (C) Requirements or charges incidental to the awarding or enforcing of the Franchise, including but not limited to, payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages; or (D) Any fee imposed under Title 17, United States Code. 10 Cable Televbdoll Frallchise "Grantee" means Comcast of Washington IV, Inc. or its lawful successor, transferee or assignee. "Gross Revenues" means any and all revenue derived directly or indirectly by Grantee, or by Grantee's Affiliates from the operation of the Grantee's Cable System to provide Cable Services in the Franchise Area. Gross Revenues include, by way of iIlustration and not limitation, monthly and other fees charged Subscribers for Cable Services including Basic Service, Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service instaIlation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, remote control rental fees, late fees and administrative fees or other consideration received by the Grantee from programmers for carriage of Cable Services on the Cable System and recognized as revenue under generaIly accepted accounting principles (GAAP), revenues from rentals of converters or other Cable System equipment, advertising sales revenues (including local, regional and a pro rata share of national advertising carried on the Cable System in the Franchise Area), revenues from program guides, additional outlet fees, revenue from the sale or carriage of other Cable Services, and revenues from home shopping. Gross Revenues shall not include (i) Bad Debt, provided, however, that all or part of any such Bad Debt that is written off but subsequently collected shaIl be included in Gross Revenues in the period collected; or (ii) any taxes on services furnished by the Grantee that are imposed directly on any Subscriber or user by the State, City or other governmental unit and that are collected by the Grantee on behalf of said governmental unit; or (iii) the Capital Contributions as required by Section 9.7 of this Franchise. The Franchise Fees are not a tax and are therefore included in Gross Revenues. "Headend" or "Hub" means any Facility for signal reception and dissemination on a Cable System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, and all other related equipment and Facilities. "Incremental Costs" means the direct and actual material and labor cost (excluding profit) of constructing, relocating or placing additional ducts, conduit or related structures by Grantee for the City, or for the City's use, excluding the costs that Grantee would otherwise incur to construct, relocate or place ducts, conduit or related structures for the Grantee including, but not limited to, trenching, pipe bedding, backfilling, compacting, restoring the surface, and other charges, costs or expenses. "Institutional Network" means that part of the Cable System facilities or capacity designated for use by non-residential Subscribers including communications to, from and among government agencies, Schools, libraries and other public agencies. "Interconnect" or "Interconnection" means the provision of City Access Channel programming to a geographically contiguous cable system, including technical, engineering, physical, and other necessary components to accomplish, complete and adequately maintain such provlslol1lng. 11 Cable Television Fl'anchi....'e "Leased Access Channel" means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act. "Locally Scheduled Original Programming" means Public Access, Government Access or Educational Access programming that is created by the City or their designated access provider(s) induding edited coverage of live programming. Such Locally Scheduled Original Programming shall not be considered as qualifying as such after three (3) cablecasts (initial, first repeat and second repeat). Automated Video Programming tiller, such as cablecasts of highways and roads, or video bulletin boards does not constitute Locally Scheduled Original Programming that qualities herein. "Noncommercial" means, in the context of Access Channels, those particular products and services that are not promoted or sold. This term shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting and receiving contributions used to produce and transmit Video Programming on an Access Channel, or from acknowledging a contribution, in the manner of the Corporation for Public Broadcasting or some similar manner, subject to applicable law. "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve Customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some hours on Saturday. "Normal Operating Conditions" means those service conditions that are within the control of the Grantee. Those conditions that are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, severe or unusual weather conditions, and availability of materials, equipment or labor. Those conditions that are ordinarily within the control of the Grantee include, but are not limited to, regular peak or seasonal demand periods and maintenance or upgrade of the Cable System. "Pay Service" or "Premium Service" means Video Programming or other programming service choices (such as movie Channels or pay-per-view programs) offered to Subscribers on a package tier, per-Channel, per-program or per-event basis. "Person" means any natural person, sole proprietorship, partnership, joint venture, association, or limited liability entity or corporation, or any other form of entity or organization. "Qualitied I-NET Users" means (i) the City; (ii) other governmental and public agencies, libraries and Schools; and (iii) other entities that Grantee and City agree may use the I-NET. "Rights-of-Way" means land acquired for or dedicated to the public or are hereafter acquired or dedicated to the public and maintained under public authority, including but not limited to public streets or roads, highways, avenues, lanes, alleys, bridges, sidewalks and areas behind sidewalks, easements, and similar public property located within the Franchise Area. 12 Cable Televb,,;o/l Fra/lc/rise "School" means any State accredited K-12 public or private educational institution not including home schools, prisons or jails (provided that state accredited juvenile schools within prisons or jails shall be included). "Service Interruption" means the loss of picture or sound on one or more cable Channels. "State" means the State of Washington. "Subscriber" or "Customer" means any Person who lawfully receives Cable Services provided by Grantee by means of the Cable System with Grantee's express permission. Said permission may be withdrawn and customer disconnected by Grantee at Grantee's discretion. "Tier" means a category of Cable Services provided by the Grantee for which a separate rate is charged. "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, or cable programming provider. SECTION 2. GRANT OF FRANCHISE 2.1 Grant (A) City hereby grants to Grantee a nonexclusive authorization to make reasonable and lawful use of the Rights-of-Way within the Franchise Area to construct, operate, maintain, reconstruct, repair and upgrade the Cable System for the purpose of providing Cable Services, subject to the terms and conditions set forth in this Franchise and applicable law. This Franchise shall constitute both a right and an obligation to fulfill the obligations set forth in, the provisions of this Franchise. (B) The Grantee, through this Franchise, is granted the right to operate its Cable System using the public Rights-of-Way within the Franchise Area in compliance with Title 11 of the Bremerton Municipal Code, as may be amended periodically, and all lawfully enacted applicable construction codes and regulations. The Grantee specifically agrees to comply with the provisions of City ordinances provided that in the event of a conflict between the provisions of ordinances and the Franchise, the express provisions of the Franchise shall govern. Subject to federal and State preemption, the material terms and conditions contained in this Franchise may not be unilaterally altered by the City through subsequent amendment to any ordinance, rule, regulation, resolution, or other enactment of City, except in the lawful exercise of City's police power. Grantee acknowledges that the City may modify its generally applicable regulatory policies by lawful exercise of the City's police powers throughout the term of this Franchise. Grantee agrees to comply with such lawful modifications unless there is a conflict with Grantee's negotiated rights hereunder. Grantee reserves all rights it may have to challenge such lawful modifications whether arising in contract or at law. The City reserves all of its rights and defenses to such challenges whether arising in contract or at law. (C) This Franchise shall not be interpreted to prevent the City from imposing other conditions, to the extent permitted by law. 13 Cable Television Franchise (0) Grantee agrees, as a condition of exercising the privileges granted by this Franchise, that any Affiliate of the Grantee that is a Cable Operator of the Cable System in the Franchise Area, as defined herein, or directly involved in the management or operation of the Cable System in the Franchise Area, wiJl comply with the terms and conditions of this Franchise. (E) No rights shaJl pass to Grantee by, implication. Without limiting the foregoing, by way of example and not limitation, this Franchise shaJl not include or be a substitute for: (1) Any other permit or authorization required for the privilege of transacting and carrying on a business within the City that may be required by the ordinances and laws of the City. (2) Any permit, agreement or authorization required by the City for Rights- of-Way users in connection with operations on or in Rights-of-Way or public property; or (3) Any permits or agreements for occupying any other property of the City or private entities to which access is not specificaJly granted by this Franchise. (F) This Franchise is intended to convey limited rights and interests only as to those Rights-of-Ways in which the City has an actual interest. It is not a warranty of title or interest in any Rights-of-Way; it does not provide the Grantee with any interest in any particular location within the Rights-of-Way; and it does not confer rights other than as expressly provided in the grant hereof. (G) This Franchise is an express authorization to provide Cable Services only. This Franchise is not a bar to the imposition of any lawful conditions on Grantee with respect to non-Cable Services, telecommunications services or information services, whether similar, different or the same as the condition specified herein. This Franchise does not relieve Grantee of any obligation it may have to obtain from the City an authorization to provide non- Cable Services, telecommunications services or information services or relieve Grantee of its obligation to comply with any such authorization(s) that may be lawfully required. 2.2 Use of Rights-of-Way (A) Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along the Rights-of-Way within the Franchise Area, such wires, cables (both coaxial and Fiber Optic), conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable System for the provision of Cable Service within the Franchise Area. Grantee shaJl comply with aJl lawfuJly enacted and applicable construction codes, laws, ordinances, regulations and procedures regarding placement and instaJlation of Cable System facilities in the Rights-of Way. (B) Grantee must foJlow City-established requirements, including Title 11 of the Bremerton Municipal Code, as may be amended periodicaJly, as well as aJl other City codes, 14 Cable Television Franchise ordinances and other regulations regarding placement of Cable System facilities in Rights-of- Way, including the specific location of facilities in the Rights-of-Way. The Grantee must in any event install Cable System facilities in a manner that minimizes interference with the use of the Rights-of-Way by others, including others that may be installing communications facilities. To protect public health, safety and welfare. the City may require that Cable System facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Rights-of-Way; may deny access if Grantee is not willing to comply with City's requirements; and may remove, or require removal of, any facility that is not installed in compliance with the requirements established by City, or that is installed without prior City approval of the time; place or manner of installation and charge Grantee for all the costs associated with removal; and City may require Grantee to cooperate with others to minimize adverse impacts on the Rights-of-Way through joint trenching and other arrangements. Grantee shall assume its costs (in accordance with applicable law) associated with any requirement of City in the exercise of its police powers, to relocate its Cable System facilities located in the Rights-of-Way. 2.3 Term This Franchise shall have a tenn of five (5) years, effective on June 1, 2007 and terminating on May 30,2012; then at any time during the three (3) year franchise renewal period, this Franchise may be extended by mutual agreement of the parties for five (5) additional years to May 30, 2017. 2.4 Effective Date (A) This Franchise and the rights, privileges, and authority granted hereunder and the contractual relationship established hereby shall take effect and be in force from and after the effective date of this Franchise as specified in this Section and for the duration of the term as specified in Section 2.3. (B) adoption. The effective date of this Franchise shall be five business days after its (C) The grant of this Franchise shall have no effect on any ordinance in effect prior to the effective date of this Franchise to indemnify or insure the City against acts and omissions occurring during the period that the prior Franchise was in effect, nor shall it have any affect upon liability to pay all Franchise Fees (for any prior years) that were due and owed under a prior franchise and the franchise ordinance. 2.5 Franchise Nonexclusive This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements, or franchises granted by City or its predecessors to any Person to use any property, Right -of- Way, easement, including the right of City to use same for any purpose it lawfully deems fit, including the same or similar purposes allowed Grantee hereunder. City may at any time grant authorization to use the Rights-of-Way for any purpose not incompatible with Grantee's authority under this Franchise and for such additional franchises for Cable Systems, as City deems appropriate. 15 Cable Television Franchise 2.6 Grant of Other Franchises 2.6.1. The Grantee acknowledges and agrees that the City reserves the right to grant one or more additional franchises to provide Cable Service within the Franchise Area; provided, however, that no such franchise agreement shalI contain terms or conditions substantialIy more favorable or less burdensome to the competitive entity than the material terms and conditions herein, including, but not limited to: franchise fees; insurance; system build-out requirements; security instruments; public, education and government access channels and support; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. If any such additional or competitive franchise is granted by the City which, in the reasonable opinion of the Grantee, contains more favorable or less burdensome terms or conditions than this Franchise, the City agrees that it shalI amend this Franchise to include any more favorable or less burdensome terms or conditions in a manner mutualIy agreed upon by City and Grantee. 2.6.2. In the event an application for a new cable television franchise is filed with the City proposing to serve the Franchising Area, in whole or in part, the City shalI serve or require to be served a copy of such application upon any existing Gran~ee or incumbent cable operator by registered or certified mail or via nationally recognized overnight courier service. 2.6.3. In the event that a wireline multichannel video programming distributor provides service to the residents of the City under the authority granted by Federal or State legislation or other regulatory entity, the Grantee shall have a right to request Franchise amendments that relieve the Grantee of regulatory burdens that create a competitive disadvantage to the Grantee. In requesting amendments, the Grantee shall file a petition seeking to amend the Franchise. Such petitions shall: (1) indicate the presence of a wireline competitor operating without a local franchise; (2) identify the basis for Grantee's belief that certain provisions of the Franchise place Grantee at a competitive disadvantage; and (3) identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage. The City shall not unreasonably withhold consent to the Grantee's petition. 2.7 Familiarity with Franchise The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement granted herein, that it has carefully read and fully comprehends the terms and conditions of this Franchise and is willing to and does accept all reasonable risks of the meaning of the provisions, terms and conditions herein. The Grantee further acknowledges and states that it has fully studied and considered the requirements and provisions of this Franchise, and finds that the same are commercially practicable at this time and consistent with all local, State and federal laws and regulations currently in effect, including the Cable Act. 2.8 Effect of Acceptance By accepting the Franchise, the Grantee: (1) acknowledges and accepts the City's legal right to issue and enforce the Franchise; (2) agrees that it will not oppose the City's intervening to the extent it is legally entitled to do so in any legal or regulatory proceeding affecting the Cable System; (3) accepts and agrees to comply with each and every provision of this 16 Cable Televb,.;on Franchise Franchise subject to applicable law; and (4) agrees that the Franchise was granted pursuant to processes and procedures consistent with appl icable law, and that it wiII not raise any claim to the contrary. 2.9 Police Powers Grantee's rights hereunder are subject to the police powers of City to adopt and enforce ordinances necessary to the safety, health and welfare of the public. and Grantee agrees to comply with all applicable laws, ordinances and regulations lawfully enacted pursuant to the police powers of City. or hereafter enacted in accordance therewith, by City or any other legalIy constituted governmental unit having lawful jurisdiction over the subject matter hereof. The City reserves the right to exercise its police powers, notwithstanding anything in this Franchise to the contrary. 2.10 Franchise Area Grantee shall provide Cable Services, as authorized under this Franchise. within the Franchise Area in accordance with line extension and density provisions as provided herein. SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS 3.1 Franchise Fee As compensation for the use of City's Rights-of-Way, Grantee shall pay as a Franchise Fee to City, throughout the duration of this Franchise, an amount equal to three and one half percent (3.5 %) of Grantee's Gross Revenues. Accrual of such Franchise Fee shall commence as of the effective date of this Franchise. 3.2 Payments Grantee's Franchise Fee payments to City shall be computed quarterly for the preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than forty five (45) days after said dates. 3.3 Acceptance of Payment No acceptance of any payment shall be construed as an accord by City that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim City may have for further or additional sums payable or for the performance of any other obligation of Grantee. The period of limitation for recovery of Franchise Fees payable hereunder shall be six (6) years from the date on which payment by the Grantee was due or such shorter period of time if so provided by law. 3.4 Quarterly Franchise Fee Reports Each payment shall be accompanied by a written report to City on a form commonly used by Grantee. verified by an officer of Grantee. containing an accurate statement in summarized form, of Grantee's Gross Revenues and the computation of the payment amount. Such reports shall include all Gross Revenues of the Cable System. 17 Cable Television Frallchi.\'e 3.5 Audits On an annual basis, upon thirty (30) days' prior written notice, City shall have the right to conduct an independent audit of Grantee's financial records necessary to enforce compliance with this Franchise and to calculate any amounts determined to be payable under this Franchise. Provided Grantee cooperates in making all relevant records available upon request, City will in good faith attempt to complete each audit within six (6) months, and the audit period shall not be any greater than the previous six (6) years or such shorter period of time if so provided by law. Any additional amounts due to the City as a result of the audit shall be paid within sixty (60) days following written notice to the Grantee, and Grantee's agreement that the audit findings are correct, which notice shall include a copy of the audit findings. If a Franchise Fee underpayment is discovered as the result of an audit, Grantee shall pay, in addition to the amount due, interest at the maximum allowed rate as provided under State law calculated from the date the underpayment was originally due until the date the City receives the payment. If the audit shows that Franchise Fees have been underpaid, by five percent (5 %) or more in a calendar year, Grantee shall pay the cost of the audit in an amount up to $7,500 per audited year. 3.6 Financial Records Grantee agrees to meet with a representative of the City upon request to review Grantee's methodology of record-keeping, financial reporting, the computing of Franchise Fee obligations and other procedures, the understanding of which the City deems necessary for reviewing reports and records that are relevant to the enforcement of this Franchise. 3.7 Interest on Late Payments In the event any payment is not received within forty-five (45) days from the end of the scheduled payment period, Grantee shall pay, in addition to the payment or sum due, interest from the due date at the prime rate as listed in the Wall Street Journal on the date the payment was due, until the date the City receives the payment. 3.8 Maximum Franchise Fee The parties acknowledge that, at present, applicable federal law limits City to collection of a Franchise Fee of five percent (5 %) of Gross Revenues in any twelve (\2) month period. In the event that at any time throughout the term of this Franchise, City is authorized to collect an amount in excess of five percent (5 %) of Gross Revenues in any twelve (\2) month period, the parties hereby agree to amend the Franchise after written notice to Grantee, and a public meeting to discuss same provided that all wireline cable systems in the Franchise Area over which the City has jurisdiction are treated in an equivalent manner. In the event that at any time throughout the term of this Franchise, City is limited by federal law to collecting an amount which is less than five percent (5 %) of Gross Revenues in any twelve (\2) month period, Grantee may reduce the Franchise Fee payments to the City in accordance with federal law and the parties hereby agree to amend the Franchise unless the City would be covered under grandfathered provisions under federal law to keep the Franchise Fee at 3.5 % of Gross Revenues. 18 Cable Television Franchise 3.9 Additional Commitments Not Franchise Fees No term or condition in this Franchise shall in any way modify or affect Grantee's obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this Franchise may total more than five percent (5 %) of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional commitments regarding PEG funding. and Access Channels are excluded from the detinition of Franchise Fees herein and are not Franchise Fees, nor are they to be offset or credited against any Franchise Fee payments due to City, pursuant to any federal law. Furthermore, City and Grantee agree that any utility tax, business and occupation tax or similar tax shall be in addition to any Franchise Fees required herein and there shall be no offset against Franchise Fees subject to applicable law. 3.10 Payment on Termination If this Franchise terminates for any reason, the Grantee shall tile with the City within one hundred twenty (120) calendar days of the date of the termination, a tinancial statement, certified by an independent certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous fiscal year. Within forty five (45) days of the tiling of the certified statement with the City, Grantee shall pay any unpaid amounts as indicated, If the Grantee fails to satisfy its remaining financial obligations as required in this Franchise, the City may do so by utilizing the funds available in a Letter of Credit or other security provided by the Grantee. 3.11 Service Packages If Grantee offers bundled Cable Services and non-Cable Services to Subscribers, Grantee shall fairly and reasonably allocate revenue with regard to Cable Services. If a dispute arises between the parties regarding this matter, the City and Grantee will meet and discuss such matters in good faith in an attempt to resolve the dispute. 3.12 Additional Compensation In the event that Franchise Fees are prohibited by any law or regulation, Franchisee shall pay to the City that amount, if any, which is determined by applicable law. 3.13 Tax Liability The Franchise Fees shall be in addition to any and all taxes or other levies or assessments which are now or hereafter required to be paid by businesses by any law of the City, the State or the United States including, without limitation, sales, use, utility and other taxes, or business license fees. SECTION 4, ADMINISTRA TION AND REGULATION City shall be vested with the power and right to administer this Franchise and the regulations and requirements of applicable law, including the Cable Act, or to delegate that power and right of administration, or any part thereof, to the extent permitted under federal, State and local law, to any agent in the sole discretion of the City. 4.1 Rates and Charges Grantee rates and charges related to or regarding Cable Services shall be subject to regulation 19 Cable Television Franchise by City to the full extent authorized by applicable federal, State and local laws. Customer billing shall be itemized by service(s) per FCC Regulation 76.309 (8) (ii)(A) and 76.1619 or as amended. Grantee shall comply with all applicable laws regarding rates for Cable Services and all applicable laws covering issues of cross subsidization. 4.2 No Rate Discrimination All Grantee rates and charges shall be published (in the form of a publicly-available rate card), made available to the public, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances and conditions. Grantee shall apply its rates in accordance with governing law. Nothing herein shall be construed to prohibit: (A) The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns; (B) The offering of reasonable discounts to similarly situated Persons; (C) The offering of rate discounts for either Cable Service generally; or (D) The offering of bulk discounts for Multiple Dwelling Units. (E) The Grantee offers to continue through a voluntary initiative a discount of 30 % from its published rate card rate to Subscribers for Basic Cable Services or the Basic portion of Expanded Basic as part of their service (provided they are not already receiving a package discount) who are deemed low income by City standards and aged 65 years or older or disabled, provided that such individual(s) are the legal owner or lessee/tenant of their Dwelling Unit. 4.3 Filing of Rates and Charges (A) Throughout the term of this Franchise, Grantee shall maintain on file with City a complete schedule of applicable rates and charges for Cable Services provided under this Franchise. Nothing in this subsection shall be construed to require Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. 4.4 Time Limits Strictly Construed Whenever this Franchise sets forth a time for any act to be performed by Grantee, such time shall be deemed to be of the essence, and any failure of Grantee to perform within the allotted time may be considered a breach of this Franchise. 4.5 Performance Evaluation (A) Special evaluation sessions may be held at any time upon request by City during the term of this Franchise following Grantee's repeated failure to comply with the terms of this Franchise. (B) All evaluation sessions shall be open to the public and announced at least one week in advance in a newspaper of general circulation in the Franchise Area. 20 Cable Television Franchise (C) Topics that may be discussed at any evaluation session may include those issues surrounding Grantee's failure to comply with the terms of the Franchise provided that nothing in this subsection shall be construed as requiring the renegotiation of this Franchise or any term or provision therein and further provided that this subsection need not be followed before other legal or equitable remedies within this Franchise. 4.6 Leased Access Channel Rates Upon request, Grantee shall provide a complete schedule of current rates and charges for any and all Leased Access Channels, or portions of such Channels, provided by Grantee. 4.7 Late Fees (A) For purposes of this subsection, any assessment, charge, cost, fee or sum, however, characterized, that the Grantee imposes upon a Subscriber solely for late payment of a bill is a late fee and shall be applied in accordance with applicable local, State and federal laws. (B) The Grantee's late fee and disconnection policies and practices shall be nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this subsection, shall apply equally in all parts of the City without regard to the neighborhood or income level of the subscribers, SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification (A) General Indemnification. Grantee, at its sole cost and expense, shall indemnify, defend and hold City, its officers, officials, boards, commissions, authorized agents, representatives, and employees, harmless from any action or claim for injury, damage, loss, liability, settlement, proceeding, judgment, or cost or expense, including court and appeal costs and attorneys I fees and expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, erection, operation, maintenance, repair or reconstruction, or any other act done under this Franchise, by or for Grantee, its authorized agents, or by reason of any neglect or omission of Grantee its authorized agents or its employees, Grantee shall consult and cooperate with the City while conducting its defense of the City. (B) Indemnification for Relocation. Subject to applicable law, Grantee shall indemnify City for any damages, payable by City related to, arising solely out of or resulting solely from Grantee's failure to properly install, remove, adjust or relocate any of its facilities in the streets in accordance with any lawful relocation required by City. (C) Additional Circumstances. Grantee shall also indemnify, defend and hold City harmless for any claim for injury, damage, loss, liability, cost and expense, including court and appeal costs and attorneys' fees and expenses in any way arising out of any failure by Grantee to secure consents from the owners, authorized distributors or Franchisees/licensors of programs to be delivered by the Cable System, provided however, that Grantee will not be 21 Cable Television Franchise required to indemnify the City for any claims arising out of the use of Access Channels by the City and/or its Designated Access Providers or use by the City of the Emergency Alert Cable System. (D) Procedures and Defense. If a claim or action arises, City or any other indemnified party shall tender the defense of the claim or action to Grantee, which defense shall be at Grantee's expense. City may participate in the defense of a claim and, in any event, Grantee may not agree to any settlement of claims financially affecting City without City's written approval that shall not be unreasonably withheld. (E) Duty of Defense. The fact that Grantee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Grantee's duty of defense and indemnification under this Section. (F) Duty to Give Notice. The City shall give the Grantee timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity in this Section. In the event any such claim arises, the City or any other indemnified party shall tender the defense thereof to the Grantee and the Grantee shall have the obligation and duty to defend any claims arising thereunder, and the City shall cooperate fully therein. (G) Separate Representation. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by Grantee to represent the City, Grantee shall select other counsel without conflict of interest with the City. (H) The grant of this Franchise shall have no effect on the Grantee's duty under the prior franchises to indemnify or insure the City against acts and omissions occurring during the period that the prior franchises were in effect, nor shall it have any effect upon Grantee's liability to pay all Franchise Fees which were due and owed under prior franchises. 5.2 Insurance Requirements (A) General Requirement. Grantee shall maintain in full force and effect at its own cost and expense each of the following policies of insurance: (1) Commercial General Liability coverage for bodily injury, personal injury, and property damage with limits of no less than two million dollars ($2,000,000) per occurrence. The general aggregate limit shall be no less than five million dollars ($5,000,000). Such insurance shall name the City, the City's officers, officials, boards, commissions, agents, representatives, volunteers and employees as additional insureds. (2) Commercial Automohile Liability Insurance with minimum combined single limits of at least two million dollars ($2,000,000) each occurrence and five million dollars ($5,000,000) aggregate with respect to each of Grantee's owned, hired and non-owned, 22 Cable Telev;.....;on Franchise or any other vehicles assigned to or used in any activ ities authorized under or used in conjunction with this Franchise. (3) ($1,000,000). Employer's Liability with limits of at least one million dollars (4) Workers' Compensation insurance shall be maintained during the life of this Franchise to comply with State law for all employees. (B) Each policy shall provide that the insurance shall not be canceled or terminated so as to be out of compliance with these requirements without forty-five (45) days' written notice tirst provided to the City via mail, and ten (10) days notice for nonpayment of any premium. If the insurance is canceled or terminated so as to be out of compliance with the requirements of this Franchise, Grantee shall provide a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in at least the amounts required, until all work required to be performed under the terms of this Franchise is satisfactorily completed and, in the case of Commercial General Liability Insurance, for at least one (1) year after expiration of this Franchise. Any failure of Grantee to comply with the claim reporting provisions of the policy(ies) or any breach of an insurance policy warranty shall not affect coverage afforded under the policy to protect the City. However, if coverage is not afforded under these circumstances, Grantee will indemnify City for losses City otherwise would have been covered for as an additional insured. All insurance policies, except Workers Compensation, shall contain a waiver of transfer rights of recovery (subrogation) against City, its officers, officials, agents, and employees for any claims arising out of Grantee's work or service. Grantee solely shall be responsible for deductibles and/or self-insured retention, and City, at its option, may require Grantee to secure the payment of such deductible or self-insured retention by a surety bond or an irrevocable Letter of Credit. (C) Endorsements. (1) All policies shall contain, or shall be endorsed so that: (a) The City, and the City's officers, officials, boards, commissions, agents, representatives, and employees are to be covered as, and have the rights of, additional insured's with respect to liability arising out of activities performed by, or on behalf of, Grantee under this Franchise or applicable law, or in the construction, operation, upgrade, maintenance, repair, replacement or ownership of the Cable System; (b) Grantee's insurance coverage shall be primary insurance with respect to the City, City Council and the City's officers, officials, boards, commissions, agents, and employees. Any insurance or self insurance maintained by the City, City Council and the City's officers, officials, boards, commissions, agents, representatives, volunteers or employees shall be in excess of the Grantee's insurance and shall not contribute to it, provided the occurrence arises out of Grantee's negligence; and 23 Cable Television Frallchise (c) Grantee's insurance shaH apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. (D) Verification of Coverage. The Grantee shaH furnish the City with certiticates of insurance and an endorsement ret1ecting additional insured status. The certificates for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the City at the time of acceptance of this Franchise by Grantee with existing insurance coverage to be maintained by Grantee until that date. The Grantee hereby warrants that its insurance policies satisfy the requirements of this Franchise. 5.3 Security (A) Grantee shaH provide a performance bond in the amount of twenty-five thousand dollars ($25,000) to ensure the faithful performance of its responsibilities under this Franchise and applicable law, including, by way of example and not limitation, its obligations to relocate and remove its facilities and to restore City Rights-of-Way and other property. Grantee may be required to obtain additional bonds, such as generally applicable construction bonds, in accordance with the City's ordinary practices. The construction bond and performance bond shall be in a standard industry form. Grantee shall pay all premiums or costs associated with maintaining the bond(s), and shall keep the same in full force and effect at all times. Except as expressly provided herein, the Grantee shall not be required to obtain or maintain other bonds as a condition of being awarded the Franchise or continuing its existence. (B) If there is uncured breach by Grantee of a material provision of this Franchise or pattern of repeated violations of any provision(s) of this Franchise, then the City may request and Grantee shall establish and provide within thirty (30) days from receiving notice from the City, to the City as security for the faithful performance by Grantee of all of the provisions of this Franchise, a letter of credit from a financial institution satisfactory to the City in the amount of twenty-five thousand dollars ($25,000). (C) After the giving of notice by the City to Grantee, and expiration of any applicable cure period, the letter of credit may be drawn upon by the City for purposes that include, but are not limited to the foHowing: (l) Failure of Grantee to pay the City sums due under the terms of this Franchise; (2) Reimbursement of costs borne by the City to correct Franchise violations not corrected by Grantee; and (3) Liquidated damages assessed against Grantee as provided in this Franchise. 24 Cable Television Franchi.\'e (D) The City shalI give Grantee written notice of any withdrawal under this subsection upon such withdrawal. Within ten (10) days folIowing receipt of such notice, Grantee shall restore the letter of credit to the amount required under this Franchise. Grantee's maintenance of the letter of credit shalI not be construed to excuse unfaithful performance by Grantee or limit the liability of Grantee to the amount of the letter of credit or otherwise limit the City's recourse to any other remedy available at law or in equity. (E) Grantee agrees to maintain continuous uninterrupted letter of credit and bonds in the amounts required for the duration of this Franchise or as otherwise specified in this Franchise. (F) Grantee shall have the right to appeal to the City Council for reimbursement in the event Grantee believes that the letter of credit was drawn upon improperly. After a determination by the City Council, Grantee shall also have the right of judicial appeal if Grantee believes the letter of credit has not been properly drawn upon in accordance with this Franchise. Any funds the City erroneously or wrongfully withdraws from the letter of credit shall be returned to Grantee with interest, from the date of withdrawal at a rate equal to the prime rate of interest as quoted in the Wall Street Journal. SECTION 6. CUSTOMER SERVICE 6.1 Customer Service Standards' Grantee shall comply with Customer Service Standards as provided in FCC Standards 47 C.F.R. Sections 76.309,76.1602,76.1603 and 76.1619. Additionally, Grantee shall provide its service under Normal Operating Conditions and comply with Customer Service Standards and the City Code as they exist on the date of adoption of this Franchise, as are currently contained in Exhibit I attached hereto and made a part hereof. The Grantee shall not enter into a contract with any Subscriber that is in any way inconsistent with the terms of this Franchise, or the requirements of any applicable Customer Service Standards. 6.2 Subscriber Privacy Grantee shall comply with privacy rights of Subscribers in accordance with applicable law. 6.3 Customer Service Location(s) For a period of two (2) years, the Grantee must maintain, at a minimum, one (1) Customer service location as prescribed herein conveniently located within three (3) miles of the City that wilI be open during Normal Business Hours, to provide Subscribers the opportunity to pick up (certain types of equipment depending upon size and subject to storage availability on site) and return Subscriber equipment and to make bilI payments. Sixty (60) days prior to any closure of such Customer Service location, the City and the Grantee agree to meet to discuss any prospective closure. In addition, Grantee shalI at alI times maintain a Customer support center where Customers may access information related to services and products, make bilI payments or "speak" with a Customer Service Representative. Grantee is encouraged to provide a website. 25 Cable TelevisioJl FraJlchise 6.4 Customer Service Agreement and Manual (A) Grantee shall provide to Suhscrihers an accurate, comprehensive service agreement (currently called the work order) and Customer installation packet (currently called the Install Package) for use in estahlishing Suhscriher service. This material shall, at a minimum, contain the following: (1) Grantee I s procedure for investigation and resolution of Suhscriher service complaints. (2) Services to be provided and rates for such services. (3) Billing procedures. (4) Service termination procedure. (5) A description of the manner that will be used to provide notice of changes in rates, service or service terms and conditions. (6) A complete statement of the Subscriber's right to privacy. (7) Equipment policy. (8) The name, address and phone number of the Customer care department that is responsible for handling cable questions and complaints for the Grantee. (B) A copy of the installation packet shall be available to each Subscriber at the time of initial installation and any reconnection or Cable Service upgrade requiring a home visit by the Grantee (excluding reconnections to the same Subscriber within twelve (12) months), and at any time the packet is requested by the Subscriber. Within thirty (30) days following material policy changes, information regarding the changes will be provided to Subscribers. SECTION 7. REPORTS AND RECORDS 7.1 Open Records 7.1.1. Books and Records. Throughout the term of this Franchise, the Grantee agrees that the City, upon reasonable prior written notice to the Grantee, may review such of the Grantee's books and records regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor Grantee's compliance with the provisions of this Franchise at the Grantee's business office, during normal husiness hours, and without unreasonably interfering with Grantee's husiness operations. Such books and records shall include any records required to be kept in a public tile by the Grantee pursuant to the rules and regulations of the FCC. All such documents pertaining to financial matters that may he the subject of an inspection by the City shall he retained by the Grantee for a minimum period of tive (5) years. 26 Cable Television Franchise 7.1.2. File for Public Inspection. Throughout the term of this Franchise, the Grantee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations. 7.2 Confidential/Proprietary Information. Not withstanding anything to the contrary set forth in this Section. the Grantee shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature. That said, Grantee does agree to provide all information reasonably required to verify compliance with the material terms of the Franchise. City agrees to keep confidential any proprietary or confidential books or records to the extent permitted by law. Grantee shall be responsible for clearly and conspicuously identifying the work confidential or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or federal law . If City receives a demand from any Person for disclosure of any information designated by Grantee as confidential, City shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding 'access to such information within a reasonable time. 7.3 Records Required Grantee shall at all times maintain: (A) Access to a full and complete set of plans, records and "route" maps showing the location of all Cable System equipment installed or in use in the Rights-of- Way, that are generated in Grantee's normal course of business; (B) A copy of all FCC filings on behalf of Grantee, its parent corporations or Affiliates that relate to the operation of the Cable System in the Franchise Area; (C) A list of Grantee's Cable Services, rates and Channel line-ups; (0) A compilation of Subscriber complaints, actions taken and resolution, and a log of service calls. (E) Financial records as referred to in Section 3. 7.4 Copies of Federal and State Reports Upon written request, Grantee shall submit to City copies of any pleading, applications, notitications, communications and documents of any kind, submitted by Grantee or its Affiliates to any federal, State or local courts, regulatory agencies and other government bodies if such documents directly relate to the operations of Grantee's Cable System within the Franchise Area. Grantee shall submit such documents to City no later than thirty (30) days after receipt of City's request. Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. With respect to all other reports, documents and notifications provided to any federal, State or local regulatory agency as a routine matter in the due course of operating Grantee's 27 Cable Television Frallchi.....e Cable System within the Franchise Area, Grantee shall make such documents available to City upon City's written request. 7.5 Complaint File and Reports Grantee shall keep an accurate and comprehensive compilation of any and all Customer complaints received and Grantee's actions in response to those complaints. in a manner consistent with the privacy rights of Subscribers. Grantee shall provide an executive summary report to the City on an annual basis within ninety (90) days of the end of each year that shall include the following information: (A) Nature and type of Customer complaints; (B) Average response time for service calls; (C) Phone activity report; (D) A summary of the previous year's activities regarding the development of the Cable System, including, beginning and ending plant miles constructed, any technological changes occurring in the Cable System and the number of subscribers for each class of Cable Service (i.e., Basic, Expanded Basic Service, premium, etc.); 7.6 Inspection of Facilities and Annual Meeting City may inspect any of Grantee's facilities and equipment located in the Rights-of-Way or on other public property at any reasonable time during business hours upon at least twenty-four (24) hours notice, or, in case of emergency, upon demand without prior notice. Throughout the term of the Franchise, Grantee shall meet with the City on an annual basis upon fifteen (15) days prior written notice from City. Matters to be discussed include, but are not limited to Customer service, Cable System performance, technical issues and other matters related to Grantee's operation of the Cable System. 7.7 False Statements Any intentional false or misleading statement or representation in any report required by this Franchise shall be a material breach of this Franchise and may subject Grantee to alI remedies, legal or equitable, that are available to City under this Franchise. - SECTION 8. PROGRAMl\HNG 8.1 Broad Programming Categories Grantee shall provide at least the following initial broad categories of programming to the extent such categories are reasonably available. (A) Educational programming; (B) News. weather and information; 28 Cable Televi.\'ion Franchise (C) Sports; (D) General entertainment including movies; (E) Foreign language programming. 8.2 Deletion of Broad Programming Categories (A) Grantee shall not delete or so limit as to effectively delete any broad category of programming within its control without prior written notice to the City. (B) In the event of a modification proceeding under federal law , the mix and quality of Cable Services provided by Grantee shall follow the guidelines of Federal law. 8.3 Obscenity Grantee shall not transmit, or permit to be transmitted, over any Channel subject to its editorial control any programming which is obscene under applicable federal, State or local laws. 8.4 Services for the Disabled Grantee shall comply with the Americans With Disabilities Act and any amendments or successor legislation thereto. 8.5 Parental Control Device Upon request by any Subscriber, Grantee shall make available at no charge a parental control or lockout device, traps or filters to enable a Subscriber to control access to both the audio and video portions of any Channels. Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter. 8.6 Complementary Cable Service The Grantee, upon request, shall provide without charge, a Standard Installation and one outlet of Basic Service to those City buildings now existing, acquired or hereafter constructed provided that the buildings are either owned and occupied or leased and occupied by the City, for administrative purposes, fire station(s), police station(s), libraries and School(s) and provided further that they are already served or are within 125 aerial service feet or 60 underground trench feet (a Standard Installation) of its Cable System, excluding those buildings or portions of buildings that house or occupy prison/jail populations. The Cable Service described herein is a voluntary initiative that Grantee offers to continue throughout the term of this Franchise. The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from Grantee. In the case of leased facilities, the recipient of service is responsible for securing approval for appropriate right of entry suitable to the Grantee in its reasonable discretion. The Cable Service provided shall not be used for commercial purposes and the City shall take reasonable steps to limit display in public areas to the City Access Channels. The City shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in the inappropriate use thereof or any loss or damage to the Cable System. To the extent not inconsistent with other provisions in this Franchise, the City shall hold the Grantee harmless from any and all liability 29 Cable Televbdon Franchise or claims arising out of the use of Cable Service at City facilities and other facilities identified in this Section. For new hookups, the Grantee shall not provide an outlet to such buildings where a nem-Standard Installation is required, unless the City or building owner/occupant agrees to pay the cost of any necessary Cable System extension and non-Standard Installation. If additional outlets of Cable Service are provided to such buildings beyond those required herein, there shall not be any monthly service fees associated therewith. 8.7 New Technology (A) If there is a new technology, Cable Service program offering, programming delivery method or other such new development that Grantee in its sole discretion decides to beta test or trial on a limited basis in the marketplace, and such a test or trial is suited to the size and demographics of the City, Grantee shall be allowed by City to conduct the trial or beta test in the City so long as such a test is technically feasible. (B) If there is a new technology that in City's opinion would enhance substantially the quality or quantity of programming available to Subscribers on the Cable System, Grantee shall, at the request of the City, investigate the feasibility of implementing said technology and report to City the results of such investigation within ninety (90) days from the date of such request. SECTION 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS 9.1 Access Channels At all times during the term of this Franchise, Grantee shall provide, as part of the Basic Service package, at no charge, the following Access Channels: One (1) Channel for Governmental and other Access Programming; and One (1) Channel for the Scrambled Channel. Additionally, Grantee shall make available at no charge one (1) additional Channel to be triggered for PEG programming in accordance with Section 9.2 herein. It is further agreed that any Access Channel that has Governmental Programming may also be utilized for public access programmmg. In addition, Grantee shall endeavor to carry regional educational Channels in the City. In the event Grantee makes any change in the Cable System and related equipment and facilities or in signal delivery technology, which change directly or indirectly affects the signal quality or transmission of any Access Channel programming or services, the Grantee shall, at its own expense, take necessary technical steps, acquire new equipment so that the Access facilities and equipment may be used as intended to ensure that delivery of Access Video Programming signals is not diminished or adversely affected, including, among other things, so that live and taped programming can be cablecast with as good or better signal quality than existed prior to such change. For example, these provisions shall apply if Basic Service on the Cable System is converted from an analog to a digital format, such that the Access Channels must also be converted to digital in order to be received by Subscribers. 30 Cable Televisioll Frallchise 9.2 Triggers for Additional Access Channel Pursuant to Section 9.1 (Access Channels), the City may require Grantee to make available an additional activated Downstream Channel when the Access Channels required by Section 9.1 are used for LocalIy Scheduled Original Programming (excluding chara~ter generated and filIer programming, e.g. video bulIetin board, NASA, AM/FM Radio Programming) at least forty eight (48) hours per week eighty percent (80%) of the time between 10:00 A.M. and 10:00 P.M., Monday through Friday during any consecutive ten (10) week period, and then Grantee shalI make available, upon written request within six (6) months one additional Access Channel for Access Programming purposes. Therefore, an average of 3.2 hours of non-replay original programming per day on a tive day per week basis for a ten (10) consecutive week period is required to trigger use of an additional Access Channel. The programming of an additional Access Channel required herein must contain distinct and non-repetitive programming of the other Access Channel. 9.3 Management and Control of Access Channels (A) City may authorize Designated Access Providers to control, operate, and manage the use of any and all Access facilities provided by Grantee under this Franchise, including, without limitation, the operation of Access Channels. The City or its designee may formulate rules for the operation of the Access Channels, consistent with this Franchise, the FCC, federal and State law. Nothing herein shall prohibit the City from authorizing itself to be a Designated Access Provider. (B) Grantee shall cooperate with City and Designated Access Providers in the use of the Cable System and Access facilities for the provision of Access Channels. 9.4 Underutilized Access Channels Grantee and the City agree that it is their mutual goal to fully and efficiently use the Channel capacity of the Cable System, which may include allowing the Grantee to use underutilized Access Channels. If Grantee believes that any Access Channel is underutilized, Grantee may file a request with the City to use that Access Channel. The City shall in its sole and absolute discretion render a decision regarding the matter within sixty (60) days of receiving the request. Should the City find that the Access Channel may be used by the Grantee, then Grantee may begin using such Channel ninety (90) days after receipt of the decisio~. 9.5 Access Channel Identification/Location/Relocation/BiIl Insertions Grantee will use reasonable efforts to minimize the movement of Access Channel assignments. Grantee shall provide to the City a minimum of sixty (60) days notice, and use its best efforts to provide ninety (90) days notice, prior to any relocation of its Access Channels, unless the change is required by federal law, in which case Grantee shall give the City the maximum notice possible. Any Access Channel that is relocated shall be carried on the Basic or Expanded Basic Channel line-up. Grantee shall reimburse the City up to three thousand dollars ($3,000.00) for the necessary cost of replacing printed materials in the event that the Access Channel is moved. Grantee, upon request, and when space is available, shall provide the City the opportunity to J 1 Cable Television Franchise include two bill insertions per year. The City or Designated Access Providers shall be responsible for the costs of printing its bill insertions, the cost of inserting the information into Grantee's bills and for any incremental postage costs. Bill insertions must conform to Grantee's reasonable mailing requirements. Grantee shall be provided an opportunity to review and approve all Access bill insertions. 9.6 Access Interconnections (A) Grantee shall, in accordance with this Franchise, continue throughout the term of this Franchise to maintain the existing Interconnection with the adjacent cable systems owned and operated by Grantee or an Affiliate of Grantee. Grantee, at its expense shall take all necessary technical steps to ensure that downstream transmissions provide an adequate signal quality in accordance with FCC regulations. (B) Grantee shall, in accordance with this Franchise, continue throughout the term of this Franchise to maintain the existing Interconnect with the adjacent cable system not owned or operated by Grantee or an Affiliate of Grantee. (C) Nothing in this section alters Grantee's Channel obligations for Access programming delivered to Subscribers within the Franchise Area. (D) It is not the Grantee's responsibility to ensure that the signals provided to the existing Interconnection by another Interconnecting cable system meet industry standards. (E) City retains the right to contract with other Persons for fiber and lines that are not paid for or provided by Grantee and Grantee acknowledges and agrees that given the complexity of the network in the City, there are and may be situations where Grantee's fiber may be used for transport in addition to other Person's facilities used by the City. (F) Any equipment and construction costs borne by Grantee in connection with the obligation to provide for Access Channel Interconnection shall be considered a capital cost. City agrees that such cost is an "external cost" as such term is used in 47 C.F.R. Section 76.922(f) on the date of this Franchise, and as such, the cost is permitted under federal law and regulation to be passed through to Subscribers, to the extent and in a manner provided for in federal regulations governing the same. 9.7 Support for Access Capital Costs Grantee shall provide an initial Capital Contribution payment to the City of one hundred fifteen thousand ($115,000), within forty-five (45) days of the effective date of this Franchise to be used for PEG capital and I-Net capital purposes. Commencing upon thirty (30) days from the effective date hereof, the Grantee shall begin collecting from Subscribers an amount of twenty five cents $.25 per Subscriber per month that Grantee shall retain until the amount retained by Grantee equals the Capital Contribution as defined above (at which time the Grantee shall remit twenty five cents $.25 per Subscriber per month to the City). The Capital Contributions may only be applied by the City toward capital expenditures related to PEG Access, including but not limited to studio, City Council chamber equipment, portable production equipment, editing. program playback equipment, Access related facilities 32 Cable Televisio/l Fra/lchise purchases, renovation or construction, local origination, return feeds, scrambled channel and for I-NET purposes. Grantee agrees that at the end of the initial 5 year term and if the Franchise is extended for an additional 5 years, Grantee shall provide an additional Capital Contribution matching the initial Capital Contribution under the same recovery terms and conditions as the initial Capital Contribution as defined above. Grantee shall not be responsible for paying the Capital Contributions with respect to gratis or Bad Debt accounts. The City can inquire as to the status of any such accounts, and the Grantee agrees to meet with the City, upon request, to discuss such matters as necessary. The City shall have discretion to allocate the Capital Contributions in accordance with applicable law, provided that the City submits a summary of capital expenditures from the Capital Contributions to Grantee within sixty (60) days of the end of each calendar year. After Grantee has recouped its Capital Contribution(s) payment, the City may, at any time, institute, reinstitute or waive the requirement of Grantee to make all or part of the twenty five cents ($.25) per Subscriber per month Capital Contribution to City, provided that Grantee is given sixty (60) days advance written notice. To the extent the City makes Access capital investments using City funds prior to receiving necessary Capital Contributions funds, the City is entitled to apply subsequent Capital Contributions payments from Grantee toward such City capital investments. The City and Grantee agree that any Capital Contributions shall be referred to on Subscribers' bills as a "PEG Fee", or language substantially similar thereto. Grantee shall not change such reference on the Subscribers' bills without the prior written consent of the City, which consent shall not be unreasonably withheld. The Capital Contribution payments are not an advance against any Franchise Fee payment and there shall not be any offset or credit against any such Franchise Fee payment (previously or hereafter made) due to the Capital Contribution payments from Grantee to the City. 9.8 Access Channels On Lowest Tier All Access Channels provided to Subscribers under this Franchise shall be included by Grantee, without limitation, on the Tier of Cable Service as required by the FCC. 9.9 Technical Quality The Grantee shall maintain all Access channels and Interconnections as required by FCC standards. 9.10 Return Connectivity (A) Grantee at its cost and expense shall continue to provide and maintain a local origination return line from the Norm Dicks Government Center at 345 6111 Street, Bremerton, Washington 98337 to its Headend, throughout the term of this Franchise. Grantee at its cost and expense shall also continue to provide and maintain a local origination return line from 1225 Sylvan Way, Bremerton, Washington 98310 to its Headend, until April 15, 2008. Within (me-hundred twenty (120) days from the date of receipt of the request, or as soon thereafter otherwise agreed upon by the City and Grantee, Grantee shall construct and 33 Cable Television Franchise thereafter maintain a local origination fiber optic return line from the Kitsap County Fairgrounds to its Headend. Grantee agrees to provide the fiber optic connectivity at Grantee's incremental cost, and the City shall provide any underground pathway, and any fiber placement, induding, engineering, labor and materials, required to access the termination site from Grantee's existing splice location in ROW to the site on the Kitsap County Fairgrounds, at the City's expense. Upon written request of the City, Grantee shall construct and maintain additional fiber-optic return connectivity from the City to other locations within the Franchise Area, for the purpose of delivering Access programming to the City. All return connectivity engineering and construction costs for additional fiber optic connectivity shall be paid by the City at a cost mutually agreed to between the City and Grantee prior to beginning construction, and shall be completed within four (4) months of the year following City's acceptance of Grantee's estimated cost. Grantee must submit to City, all requested estimates, prior to March 1 sl of each calendar year, and City must respond, to Grantee, with acceptance or refusal prior to June 1'1 of each calendar year. City shall be responsible for any of Grantee's engineering costs associated with a project requested by City, but not accepted for construction. Grantee may require that a reasonable deposit of the estimated project cost be paid in advance. (B) After satisfactory completion of work requested by the City for which the City is to reimburse the Grantee and upon submission by Grantee of a proper invoice for payment of the cost reasonably incurred and accompanied by such evidence in support thereof, the City agrees to make payment for the cost reasonably incurred up to the estimated cost for the work; provided, however, that all payments shall be subject to adjustment for any amount found upon audit or otherwise to have been improperly invoiced. All work shall be performed in a cost-effective manner to minimize the costs to the City. 9.11 PEG Access Studio Location Grantee shall maintain the current PEG Access studio location at 1225 Sylvan Way, Bremerton, Washington 98310 until April 15,2008. Within forty-five (45) days of the effective date of this Franchise, and in addition to the Capital Contribution provided for in Section 9.7, Grantee shall pay the City as an additional Capital Contribution payment one- hundred-fifty-thousand dollars and no cents ($150,000) for the cost of constructing a new PEG Access studio. The City agrees that this money is to be used solely for the construction costs associated with the new studio and that 47 C.F.R. 976.922 permits Grantee to add these costs to the price of Cable Services and to recoup these costs from Subscribers. In addition, as permitted in 47 C.F.R. 976.985, all of these amounts paid by Grantee for the cost of constructing a new PEG Access studio may be separately stated on Subscriber's bills as a Government Access capital equipment fee. SECTION 10, GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION 10.1 Construction (A) Grantee shall perform all maintenance, construction, repair, upgrade and reconstruction necessary for the operation of its Cable System in accordance with applicable laws, regulations, ordinances and provisions of this Franchise. To the extent practicable and economically feasible, Grantee's construction and location of its facilities shall be of minimal 34 Cable Television Franchise impact to City streets and sidewalks located within the Rights-of-Way. All construction and maintenance of any and all of Grantee's facilities within Rights-of-Way shall, regardless of who performs the construction, be and remain Grantee's responsibility. (B) Prior to beginning any construction, Grantee shall provide City with a construction schedule for work in the Rights-of-Ways as required by City's permitting regulations. (C) Grantee may make excavations in Rights-of-Way for any facility needed for the maintenance or extension of Grantee's Cable System. Prior to doing such work, Grantee shall apply for, and obtain, appropriate permits from City, and give appropriate notices to City, and Grantee shall pay all applicable fees upon issuance of the requisite construction permits by City to Grantee. As a condition of any permits so issued, City officials may impose such conditions and regulations as are necessary for the purpose of protecting any structures in such Rights-of- Way, proper restoration of such Rights-of- Way and structures, protection of the public and the continuity of pedestrian or vehicular traffic. Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other providers, permittees and franchisees so as to reduce so far as possible the number of Rights- of-Way cuts within the Franchise Area. (D) In the event that emergency repairs are necessary, Grantee may initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency. 10.2 Location of Facilities Within three (3) business days, unless otherwise specified in federal, State or local regulations, after the City or any franchisee or permittee of the City notifies Grantee of a proposed Right- of- W ay excavation, Grantee shall, at Grantee's expense, mark on the surface all of its located underground facilities within the area of the proposed excavation; 10.3 Restoration of Rights-of-Way (A) When any opening is made by Grantee in a hard surface pavement in any Rights-of- Way, Grantee shall promptly refill the opening and restore the surface as required by its construction permit. (B) If Grantee excavates the surface of any Rights-of-Way, Grantee shall be responsible for restoration in accordance with applicable regulations regarding the Rights-of- Way and its surface within the area affected by the excavation. City may, after providing notice to Grantee, and Grantee's failure to respond within the agreed upon time, refill or repave any opening made by Grantee in the Rights-of- Way, and the expense thereof shall be paid by Grantee. City may, after providing notice to Grantee, and Grantee's failure to respond within the agreed upon time, remove and repair any work done by Grantee that, in the determination of City, does not conform to applicable code. The cost thereof, including the costs of inspection and supervision shall be paid by Grantee. All of Grantee's work under this Franchise, and this Section in particular, shall be done in compliance with all laws, regulations and ordinances of City and State. 35 Cable Televisioll Frallchise 10.4 Maintenance and \Vorkmanship (A) Grantee's Cable System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes or any other property of City, or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in Rights-of- W ay by, or under, City's authority. (B) Grantee shall provide and use any equipment and appliances necessary to control and carry Grantee's signals so as to prevent injury to City's property or property belonging to any Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in safe condition. (C) The Grantee's transmission and distribution Cable System, wires and appurtenances shall be located, erected and maintained so as not to endanger or interfere with the lives of Persons, or to unnecessarily hinder or obstruct the free use of Rights-of-Way, or other public property. (D) Grantee will maintain membership in good standing with the Utility's Underground Location Center, or other similar or successor organization designated to coordinate underground equipment locations and installations. Grantee shall abide by Washington State's "Underground Utilities" statutes and will further comply with and adhere to procedures relating to the one call locator service program. (E) Grantee shall give reasonable notice to private property owners of construction work in adjacent Rights-of-Way. 10.5 Acquisition of Facilities Upon Grantee's acquisition of facilities in any Rights-of-Way, or upon the addition or annexation to the City of any area in which Grantee owns or operates any facility, such facilities shall immediately be subject to the terms of this Franchise. 10.6 Reservation of Rights-of-Way Nothing in this Franchise shall prevent City from constructing any public work or improvement. If any of Grantee's Cable System interferes with the construction or repair of any Rights-of-Way or public improvement, including construction, repair or removal of a sewer or water main, Grantee's Cable System shall be removed or relocated in the area City shall direct. Any and all such removal or relocation shall be at the expense of Grantee. In the case of a joint relocation project, Grantee shall be responsible for the cost of relocating its facilities. All such removal or relocation shall be preceded by sixty (60) days written notice or such additional time as may be provided by City. Should Grantee fail to remove, adjust or relocate its facilities by the date established by City's written notice to Grantee, City may effect such removal, adjustment or relocation, and the expense thereof shall be paid by Grantee. 36 Cable Television Franchise (A) Movement of Cable System For and By City. The City may remove or disconnect Grantee's facilities and equipment located in the Right-of-Way or on any other property of the City in the case of fire, disaster or other emergency. Except during an emergency, the City shall provide reasonable notice to Grantee prior to taking such action and shall provide Grantee with the opportunity to perform such action. Following notice by the City, Grantee shall remove. replace, relocate, modify or disconnect any of its facilities or equipment within any Right-of- Way, or on any other property of the City, except that the City shall provide at least sixty (60) days' written notice of any major capital improvement project that would require the removal, relocation, replacement, modification or disconnection of Grantee's facilities or equipment. If the Grantee fails to complete this work within the time prescribed and to the City's satisfaction, the City may cause such work to be done and bill the cost of the work to the Grantee. Grantee shall remit payment to City within thirty (30) days of receipt of an itemized list of those costs. (B) Movement for Other Permittees. At the request of any Person holding a valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The cost of such temporary change must be paid by the permit holder, and Grantee may require the estimated payment in advance. 10.7 Rights-of-Way Vacation If any Rights-of-Way or portion thereof used by Grantee is vacated by City during the term of this Franchise, unless City specifically reserves to Grantee the right to continue the use of vacated Rights-of-Way, Grantee shall, without delay or expense to City, remove its facilities from such Rights-of-Way, and restore, repair or reconstruct the Rights-of-Way where such removal has occurred. In the event of failure, neglect or refusal of Grantee, after thirty (30) days' notice by City, to restore, repair or reconstruct such Rights-of-Way, City may do such work or cause it to be done, and the reasonable cost thereof, as found and declared by City, shall be paid by Grantee within thirty (30) days of receipt of an invoice and documentation. 10.8 Removal of Discontinued Facilities Whenever Grantee intends to discontinue using any facility within the Rights-of-Way, Grantee shall submit to City a complete description of the facility and the date on which Grantee intends to discontinue using the facility. Grantee may remove the facility or request that City allow it to remain in place. Notwithstanding Grantee's request that any such facility remain in place. City may require Grantee to remove the facility from the Rights of Way or modify the facility to protect the public health, welfare, safety and convenience, or otherwise serve the public interest. City may require Grantee to perform a combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a schedule set by City. Until such time as Grantee removes or modifies the facility as directed by City, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Grantee shall be 37 Cable Television Franchise responsihle for the facility, as well as maintenance of the Rights-of-Way, in the same manner and degree as if the facility were in active use. and Grantee shall retain all liability for such facility. If Grantee abandons its facilities, City may choose to use such facilities for any purpose whatsoever including, hut not limited to, Access Channel purposes. 10.9 Hazardous Substances (A) Grantee shaIl comply with all applicable State and federal laws, statutes, regulations and orders concerning hazardous substances within the Rights-of- Way. (B) Upon reasonable notice to Grantee, City may inspect Grantee's facilities in Rights-of-Way to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as provided in this Franchise, Grantee shall also remove all residue of hazardous substances related thereto. 10.10 Undergrounding of Cable (A) Wiring. (1) Where electric or telephone utility wiring is installed underground at the time of Cable System construction, or when such wiring is subsequently placed underground, all Cable System lines, wiring and equipment shall also be placed underground with other wireline service at no expense to the City. Related Cable System equipment, such as pedestals, must be placed in accordance with applicable City Code requirements and rules. In areas where both electric and telephone utility wiring are aerial, the Grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation. (2) The Grantee shall utilize existing poles and conduit wherever possible. (3) This Franchise does not grant, give or convey to the Grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the City or any other Person. (4) The Grantee and the City recognize that situations may occur in the future where the City may desire to place its own cable or conduit for Fiber Optic cable in trenches or bores opened by the Grantee. Therefore, if the Grantee further upgrades its Cable System, the Grantee shall submit these plans to the City in accordance with the City's permitting process so that such opportunities may be explored. However, nothing set forth herein shaIl obligate the Grantee to slow the progress of any future upgrade of the Cable System to accommodate the City. In addition, the Grantee agrees to cooperate with the City in any other construction by the Grantee that involves trenching or boring. If sufficient space is reasonably available, the Grantee shaIl aIlow the City to lay its cable, conduit and Fiber Optic cahle in the Grantee's trenches and bores, provided the City shares in the cost of the trenching and boring on the same terms and conditions as the Grantee at that time shares the total cost of trenches and hores. The City shaIl be responsible for maintaining its respective cable, conduit and Fiber Optic cable buried in the Grantee's trenches and bores under this paragraph. 38 Cable Television Franchise (5) The City shall not be required to obtain easements for the Grantee. (6) The Grantee may participate with other providers in joint trench projects to relocate its overhead facilities underground and remove its overhead facilities in areas where all utilities are being converted to underground facilities. (B) Repair and Restoration of Property. If public property is disturbed or damaged by Grantee arising out of or in connection with the provision of Cable Service, the Grantee shall restore the property to its former condition. Rights-of-Way or other City property shall be restored in a manner and within a timeframe approved by the City's Director of Public Works & Utilities or his or her designee. If restoration of Rights-of-Way or other property of the City is not satisfactorily performed within a reasonable time, the Director of Public Works & Utilities may, after prior notice to the Grantee, or without notice where the disturbance or damage may create a risk to public health, safety or welfare, or cause delay or added expense to a public project or activity, cause the repairs to be made at the Grantee's expense and recover the cost of those repairs from the Grantee. Within thirty (30) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the Grantee shall issue payment to the City. If suit is brought by City upon Grantee's failure to pay for repair or restoration, the responsibility for reasonable costs and expenses of the prevailing party including attorney costs and fees, will be determined by a court of competent jurisdiction. 10.11 Codes Grantee shall strictly adhere to all building and zoning codes currently in effect. Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any Person. In the event of such interference, City may require the removal or relocation of Grantee's lines, cables and other appurtenances from the property in question. 10.12 Construction and Use of Poles Whenever feasible, Grantee shall use existing poles when the installation of facilities above- ground is permitted. In the event Grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement, and only in such event, then it shall be lawful for Grantee to make all needed excavations in the streets for the purpose of placing, erecting, laying, maintaining, repairing and removing poles, conduits, supports for wires and conductors, and any other facility needed for the maintenance or extension of Grantee's Cable System. 10.13 Tree Trimming Upon obtaining a written permit from City, if such a permit is required. Grantee may prune or cause to be pruned. using proper pruning practices in accordance with such permit, any tree in the Rights-of-Way that interferes with the Cable System. 39 Cable Television Franchise 10.14 Standards (A) The Grantee must comply with all federal, State and local safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its Cable System. By way of illustration and not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. (B) All installations of equipment shall be permanent in nature, and shall not interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not obstruct or impede traffic. 10.15 Stop Work On notice from City that any work is being conducted contrary to the provisions of this Franchise, or in violation of the terms of any applicable permit, laws, regulations, ordinances or standards, the work may immediately be stopped by City. The stop work order shall: (A) Be in writing; (B) Be given to the Person doing the work, or posted on the work site; (C) Be sent to Grantee by mail at the address given herein; (D) Indicate the nature of the alleged violation or unsafe condition; and (E) Establish conditions under which work may be resumed. 10.16 Work of Contractors and Subcontractors Grantee's contractors and subcontractors shall be bonded in accordance with local ordinances, regulations and requirements. Work by contractors and subcontractors shall be subject to the same restrictions, limitations and conditions as if the work were performed by Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf, and shall ensure that all such work is performed in compliance with this Franchise and other applicable law, and shall be jointly and severally liable for all damages caused by them. It is Grantee's responsibility to ensure that contractors, subcontractors or other persons performing work on Grantee's behalf are familiar with the requirements of this Franchise and other applicable laws governing the work performed by them. 10.17 GIS Mapping (A) Grantee shall provide the City with records of Grantee's trunk and distribution facilities within the Franchise Area in a standard geographic information system format (GIS) format. All updates of the GIS shall be submitted to the City Public Works & Utilities Department within thirty (30) days upon annual request. 40 Cable Television Franchise SECTION 11. CABLE SYSTEM DESIGN (A) Prior to the effective date of this Franchise, the Grantee undertook a voluntary upgrade of its Cable System to a fiber-to-the-node Cable System architecture, with fiber-optic cable deployed from the Headend to the nodes and tying into a coaxial Cable System already serving Subscribers. Active and passive devices currently are passing a minimum of 750 MHz, and the Cable System is capable of delivering high quality signals that meet or exceed FCC technical quality standards regardless of a particular manner in which the signal is transmitted. Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of these specifications throughout the term of the Franchise. (B) Equipment must be installed so that all closed captioned programming received by the Cable System shall include the closed caption signal so long as the closed caption signal is provided consistent with FCC standards. (C) Grantee's construction decisions shall be based solely upon legitimate engineering decisions and shall not take into consideration the income level of any particular community within the Franchise Area. (D) Grantee acknowledges that the minimum Cable System design and performance requirements set forth in this Franchise are enforceable, to the extent allowed by law. (E) System Review. The City may hold a hearing to review whether or not the Cable System and the Cable Services offered by the Grantee are meeting demonstrated community needs and interests, taking into account the cost of meeting those needs and interests. The parties recognize that, as of the Effective Date, the City is not permitted to require the provision of specific Video Programming pursuant to this subsection. SECTION 12. SCRAMBLED CHANNEL AND INSTITUTIONAL NETWORK 12.1 Scrambled Channel Within four (4) months from the effective date hereof, or as soon thereafter otherwise agreed upon by City and Grantee, Grantee shall provide the City with capacity on the digital Tier of the Cable System in the form of a scrambled, encoded digital Channel as provided herein. Such scrambled, encoded digital Channel shall be provided at Grantee's expense at Grantee's Headend and up to and including the termination point at the City's origination site and with the number of converters described in or referred to herein. Such locations shall be provided one service drop at City's expense for those sites requiring new service installations. The City shall be responsible for Grantee's engineering costs associated with an installation design and cost estimate requested by the City, but not accepted for installation. Additional outlets shall be at City's expense. Access to the scrambled, encoded digital Channel will be limited to those locations referred to herein that contain uniquely coded converters, which must effectively descramble and decode the signals at the aforementioned referred to locations. Beyond the 18 converters to be provided at Grantee's expense, additional programmed converters shall be made available to 41 Cable Television Franchise the City, or other institutions authorized by the City, at the advertised retail rate upon the express written request of the City. The converters themselves shall be digital and the signal shall be transmitted in digital format, be addressable and scrambled such that residential and commercial Subscribers will not be able to see, hear or interpret the video or audio. Members of the public shall not be able to discern the programming provided over the scrambled, encoded digital Channel. Programming provided over the scrambled, encoded digital Channel shall originate from the City and be transported upstream over a Fiber Optic connection to Grantee's Headend for subsequent connection to the downstream digital Channel. 12.2 Institutional Network. The City and Grantee covenant and agree that, other than as provided in this Subsection 12.2, Section I through Section 11 ofthe I-Net Maintenance Agreement that was finalized as of December 4,2003 ("I-Net Maintenance A!,'Teement") and is attached hereto and made part hereof as Exhibit II, shall apply to any and all sites and related information currently listed in Exhibit's "A" and "B" of the INET Maintenance Agreement and to those sites that may be subsequently added pursuant to the tern1S and conditions of this Franchise. Therefore the past tense of the INET Maintenance Agreement shall be interpreted as present tense for future INET sites. At any time during the term of the Franchise, the City may request that Grantee provide a cost estimate for the provision of INET connectivity within the City. If the City elects to do so, then within ninety (90) days written notice from the City, Grantee shall provide the requested cost estimate taking into account incremental cost to the extent possible.. If the City elects for Grantee to do such construction, it will notify Grantee prior to June 1 sl of the calendar year so that Grantee may budget appropriately for work to be completed by April 1 sl of the following year. Prior to the City giving notice to proceed, the City and Grantee must agree in writing as to the cost of such work. If such work is requested to be done, the City shall pay Grantee within one hundred twenty (120) days atter completion of such work and acceptance testing that such fiber construction and operation conforms to accepted industry service and performance standards. The City shall be responsible for Grantee's engineering costs associated with a project design and cost estimate requested by the City, but not accepted tor construction. The I-Net is a private communication network governed by this Franchise and I-Net Maintenance Agreement. The City will use the I-Net solely for noncommercial applications in accordance therewith and may grant access only to Qualitied I-Net Users. SECTION 13. TECHNICAL STANDARDS 13.1 Technical Performance The technical performance of the Cable System shall meet or exceed all applicable technical standards authorized or required by law, including, FCC technical standards, as they may be amended from time to time, regardless of the transmission technology utilized. The City shall have the full authority permitted by applicable law to enforce compliance with these technical standards. 42 Cable Television Franchise 13.2 Cable System Performance Testing (A) Grantee shall, at its expense, perform all tests on its Cable System required by the FCC (including FCC required test points located within the City) and shall maintain written records of its test results. Upon request, all FCC required technical performance tests may be witnessed by representatives of the City. Copies of such test results will be provided to the City upon request. (B) All required technical performance or other Cable System tests shall be at the expense of the Grantee and may be witnessed by representatives of the City. Upon request, Grantee will notify the City before any required technical proof-of-performance or other testing occurs. (C) Grantee shall promptly take such measures as are necessary and diligently continue the same until completion in order to correct any performance deficiencies fully and to prevent their recurrence. Grantee's failure to correct deficiencies identified through this testing process shall be a violation of this Franchise. Sites shall be re-tested within five (5) days following correction until correction has been confirmed and satisfactory results are obtained. SECTION 14. SERVICE EXTENSION 14.1 Service Availability (A) In general, except as otherwise provided herein, Grantee shall provide a standard aerial installation of Cable Service within seven (7) days of a request by any Person within its Franchise Area. For standard underground installations scheduling shall be done within seven (7) days of a request for service. For purposes of this Section, a request shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verbal request. Grantee shall provide such service: (1) With no line extension charge except as specifically authorized elsewhere in this Franchise. (2) At a non-discriminatory installation charge for a Standard Installation, consisting of a one hundred twenty five (125) foot aerial drop or sixty (60) foot underground drop connecting to the exterior demarcation point for Subscribers, with additional charges for non-standard installations computed according to a non-discriminatory methodology for such installations. (3) At non-discriminatory monthly rates for all Subscribers, excepting commercial Customers, MDU Bulk Customers and other lawful exceptions to uniform pricing. (B) No Customer shall be refused service arbitrarily. However, for non Standard Installations of service to Customers, or a density of less than twenty tive (25) residences per 5280 aerial cable-bearing strand feet of trunk or distribution cable, or sixty (60) residences per 5280 underground trench feet of trunk or distribution cable, Cable Service may be made 43 Cable Television Franchise available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. The Grantee may require that the payment of the capital contribution in aid of construction be borne by such potential Customers be paid in advance. (C) The Grantee shall provide Cable Service to Multiple Dwelling Units in accordance with an agreement with the property owner or owners, this Franchise and all applicable laws. SECTION 15. STANDBY PO\VER AND EAS 15.1 Standby Power Grantee shall provide standby power generating capacity at the Cable System Headend capable of providing at least twelve (12) hours of emergency operation. Grantee shall maintain standby power supplies that will supply back-up power of at least two (2) hours duration throughout the distribution networks, and four (4) hours duration at all nodes and hubs. In addition, throughout the term of this Franchise, Grantee shall have a plan in place, along with all resources necessary for implementing such plan, for dealing with outages of more than two (2) hours. This outage plan and evidence of requisite implementation resources shall be presented to the City no later than thirty (30) days following receipt of a request therefore. 15.2 Emergency Alert Capability (A) In accordance with, and at the time required by, the provisions of FCC Regulations or other federal or state requirements, as such provisions may from time to time be amended, Emergency Alert System ("EAS") implementation will be accomplished in compliance with the Washington State EAS Plan and to be in compliance with or further Homeland Security requirements or applications. (B) Grantee shall ensure that the EAS is functioning properly at all times in accordance with FCC regulations. SECTION 16. FRANCHISE BREACHES; TERMINATION OF FRANCHISE 16.1 Procedure for Remedying Franchise Violations (A) If City believes that Grantee has failed to perform any material obligation under this Franchise or has failed to perform in a timely manner, City shall notify Grantee in writing, stating with documented specificity, the nature of the alleged default. Grantee shall have thirty (30) days from the receipt of such notice to: (l) Respond to City, contesting City I S assertion that a default has occurred, and requesting a hearing in accordance with subsection (B), below; (2) Cure the default; or (3) Notify City that Grantee cannot cure the default within the thirty (30) days, because of the nature of the default. In the event the default cannot be cured within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and notify 44 Cable Television Franchise City in writing and in detail as to the exact steps that will be taken and the projected completion date. Upon five (5) business days' prior written notice, either City or Grantee may call an informal meeting to discuss the alleged default. In such case, if matters are not resolved at such meeting, City may set a hearing in accordance with subsection (8) below to determine whether additional time beyond the thirty (30) days specified above is indeed needed, and whether Grantee's proposed completion schedule and steps are reasonable. (8) If Grantee does not cure the alleged default within the cure period stated above, or by the projected completion date under subsection (A)(3), or denies the default and requests a hearing in accordance with subsection (A)(1), or City orders a hearing in accordance with subsection (A)(3), City shall set a public hearing to investigate said issues or the existence of the alleged default. City shall notify Grantee of the hearing in writing and such hearing shall take place no less than seven (7) days after Grantee's receipt of notice of the hearing. At the hearing, Grantee shall be provided an opportunity to be heard, to present and question witnesses, and to present evidence in its defense. At any such hearing, City shall not unreasonably limit Grantee's opportunity to make a record that may be reviewed should any final decision of City be appealed to a court of competent jurisdiction. The determination as to whether a default or a material breach of this Franchise has occurred shall be within City's sole discretion, but any such determination shall be subject to appeal to a court of competent jurisdiction. (C) If, after the public hearing, City determines that a default still exists, City shall order Grantee to correct or remedy the default or breach within fourteen (14) days of City notification or within such other reasonable timeframe as City shall determine. In the event Grantee does not cure within such time to City's reasonable satisfaction, City may: (1) Assess and collect monetary damages in accordance with this Franchise; and (2) Terminate this Franchise; and (3) Pursue any other legal or equitable remedy available under this Franchise or applicable law. (D) The determination as to whether a violation of this Franchise has occurred pursuant to this Section herein shall be within the sole discretion of the City or its designee. Any such determination by City shall be accompanied by a record, to which Grantee's contribution shall not be limited by City (i.e., City shall hear any interested Persons and shall allow Grantee an opportunity to be heard, to cross examine witnesses, to present evidence and to make additions to the hearing record). Any such final determination shall be subject to appeal to a court of competent jurisdiction. Such appeal to the appropriate Court shall be taken within thirty (30) days of the issuance of the determination of the City. City shall receive notice from Grantee of any appeal concurrent with any filing to a court of competent jurisdiction. 45 Cable Television Franchise 16.2 Alternative Remedies No provision of this Franchise shall be deemed to bar the right of either party to seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. The City specitically does not, by any provision of this Franchise, waive any right, immunity, limitation or protection (including complete damage immunity) otherwise available to the City, its officers, officials, Boards, commissions, agents, or employees under federal, State, or local law including by example Section 635A of the Cable Act. The Grantee shall not have any monetary recourse against the City, or its officers, officials, Board, commissions, authorized agents or employees for any loss, costs, expenses or damages arising out of any provision, requirement of this Franchise or the enforcement thereof, subject to applicable law. 16.3 Assessment of Liquidated Damages and Letter of Credit Subject to Section 5.3: (A) Grantee shall deliver to the City an irrevocable and unconditional Letter of Credit, in a form and substance acceptable to the City, from a National or State bank subject to reasonable approval by the City, in the amount of twenty-tive thousand dollars ($25,000.00). (B) The Letter of Credit shall provide that funds will be paid to the City ;and in an amount for liquidated damages charged pursuant to this Section, in payment for any monies owed by the Grantee to the City as a result of any material acts or material omissions by the Grantee pursuant to this Franchise or a pattern of repeated violations of any provisions of this Franchise. (C) In addition to the recovery of any monies owed by the Grantee to the City or damages to the City as a result of any material acts or material omissions by the Grantee pursuant to the Franchise; the City in its sole discretion may, after notice and opportunity to cure as provided in Section 16.1, charge to and collect from the Letter of Credit the following liquidated damages. (1) For failure to provide data, documents, reports or information or to cooperate with the City during an application process or Cable System review or as otherwise provided herein, the Liquidated Damages shall be $150.00 per day for each day, or part thereof, such failure occurs or continues. (2) For failure of Grantee to comply with construction, operation or maintenance standards or the provision of the scrambled Channel as provided in Section 12.1, the Liquidated Damages shall be $150.00 per day for each day, or part thereof. such failure occurs or continues. 46 Cable Televbdo/l Fra/lchise (3) For failure to provide the PEG payments required hy this Franchise, and the implementation and the utilization of the PEG Access Channels, the Liquidated Damages shall he $150.00 per day for each day, or part thereof. such failure occurs or continues. (4) For failure to comply with any of the material provisions of this Franchise or Customer service standards, or other City ordinance for which a liquidated damages is not otherwise specitically provided pursuant to this paragraph (C), the liquidated damages shall be $150.00 per day for each day, or part thereof, such failure occurs or continues. (D) Each violation of any material provision of this Franchise shall be considered a separate violation for which separate liquidated damages can be imposed. Any liquidated damages for any given violation shall be imposed upon Grantee for a maximum of 90 days. (E) If any subsequent Letter of Credit delivered pursuant thereto expires prior to twelve (12) months after the expiration of the term of this Franchise, it shall be renewed or replaced during the term of this Franchise to provide that it will not expire earlier than twelve (12) months after the expiration of this Franchise. The renewed or replaced Letter of Credit shall be of the same form and with a bank authorized herein and for the full amount stated in paragraph (A) of this Section. (F) The City and the Grantee recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the City as a result of the Grantee's breach of this Franchise. Accordingly, instead of requiring such proof, the City and the Grantee agree that the Grantee shall pay to the City the sums set forth above for each day that the Grantee shall be in breach of the specific provisions of this Franchise. Such amounts are agreed by both parties to be a reasonable estimate of the actual damages the City would suffer in the event of the Grantee's breach of such provisions of this Franchise. (G) The bond(s) and Letter of Credit referred to in Section 5.3 (A) may be drawn upon by the City for breach of a material provision after notice and opportunity to cure. The City shall give Grantee written notice of any intent to withdraw under this subsection. Within seven (7) days following receipt of such notice, Grantee shall restore the bond(s) and Letter of Credit to the amount required under this Franchise. Grantee's maintenance of the bond(s) and Letter of Credit shall not be construed to excuse unfaithful performance by Grantee or to limit the liability of Grantee to the amount of the bond(s) and Letter of Credit or otherwise to limit the City's recourse to any other remedy available at law or in equity. Grantee shall have the right to appeal to the City Council for reimbursement in the event Grantee believes that a bond or Letter of Credit was drawn upon improperly. Grantee shall also have the right of judicial appeal if grantee believes a bond or Letter of Credit has not been properly drawn upon in accordance with this Franchise. Any funds the City erroneously or wrongfully withdraws from the bond(s) or Letter of Credit shall be returned to Grantee with interest from the date of withdrawal. 47 Cable Televi....'ioll Frallchi.....e The assessment of liquidated damages does not constitute a waiver by the City of any other right or remedy it may have under the Franchise or applicable law, including its right to recover from Grantee any additional damages, losses, costs and expenses that are incurred by City hy reason of the hreach of this Franchise. Grantee's maintenance of the security required herein or hy applicable code shall not be construed to excuse unfaithful performance by the Grantee of this Franchise; to limit liability of the Grantee to the amount of the security; or to otherwise limit the City's recourse to any other remedy available at law. 16.4 Revocation (A) This Franchise may be revoked and all rights and privileges rescinded if a material breach of the Franchise is not cured pursuant to Section 16.1, or in the event that: (1) Grantee attempts to evade any material provision of this Franchise or to practice any fraud or deceit upon the City or Subscribers; (2) this Franchise; Grantee makes a material misrepresentation of fact in the negotiation of (3) Grantee fails to maintain the required Customer service location within the City limits as provided in this Franchise in accordance with Section 6.3; operations; (4) Grantee abandons the Cable System, or terminates the Cable System's (5) Grantee fails to restore service to the Cable System after three consecutive days of an outage or interruption in service; except in the case of an emergency or during a force majeure occurrence, or when approval of such outage or interruption is obtained from the City, it being the intent that there shall be continuous operation of the Cable System ); or (6) Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, there is an assignment for the benefit of Grantee's creditors, or all or part of the Grantee's Cable System is sold under an instrument to secure a debt and is not redeemed by Grantee within thirty (30) days from said sale. (B) Additionally, this Franchise may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Grantee (at the option of the City and subject to applicable law) whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court of competent jurisdiction. (C) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Grantee, City may serve notice of revocation on Grantee and 48 Cable Television Franchise to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise shall be revoked thirty (30) days after service of sllch notice, unless: (1) City has approved the transfer of the Franchise, in accordance with the procedures set forth in this Franchise and as provided by law; and (2) The purchaser has covenanted and agreed with City to assume and be bOllnd by all of the terms and provisions of this Franchise. 16.5 Purchase of the Cable System If at any time this Franchise lawfully terminates, the City shall have the option to purchase the Cable System. SECTION 17. FRANCHISE TRANSFER 17.1 Transfer of Ownership or Control (A) The Cable System and this Franchise shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the City, which consent shall be by the City Council, acting by ordinance or resolution. (B) The Grantee shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used herein is not limited to majority stockholders but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall make this Franchise subject to cancellation unless and until the City shall have consented in writing thereto. (C) The parties to the sale or transfer shall make a written request to the City for its approval of a sale or transfer or change in control and shall furnish all information required by law. (D) In seeking the City's consent to any change in ownership or control, the proposed transferee or controlling entity shall indicate whether it: (1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; (2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; 49 Cable Telev;",,,;oll Frallchise (3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a cable system; (4) Is financially solvent, by submitting financial data including tinancial statements that are audited by a certi tied publ ic accountant who may also be an officer of the transferee or controlling entity, along with any other data that is lawfully required; and (5) Has the tinancial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Franchise. (E) The City shall act by ordinance or resolution on the request within one hundred twenty (120) days of receipt of the FCC Form 394 application, provided it has received a complete application. Subject to the foregoing, if the City fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the City agree to an extension of time. (F) Within thirty (30) days of any transfer or sale or change in control, if approved or deemed granted by the City, Grantee shall file with the City a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantee and the transferee or controlling entity, and the transferee or controlling entity shall file its written acceptance agreeing to be bound by all of the provisions of this Franchise, subject to applicable law. In the event of a change in control, in which the Grantee is not replaced by another entity, the Grantee will continue to be bound by all of the provisions of the Franchise, subject to applicable law, and will not be required to file an additional written acceptance. The approval of any change in control shall not be deemed to waive any rights of City to subsequently enforce noncompliance issues relating to this Franchise. For purposes herein to the extent that a change of control involves an entity that was not an Affiliate prior to the contemplated transaction, the City's consent shall be required for such change in control. (G) In reviewing a request for sale or transfer or change in control, the City may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall assist the City in so inquiring. The City may condition said sale or transfer or change in control upon such terms and conditions as it deems reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical and tinancial qualifications of the prospective controlling party or transferee and to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this Franchise by Grantee. (H) Notwithstanding anything to the contrary in this subsection, the prior approval of the City shall not be required for any sale, assignment or transfer of the Franchise or Cable System to an intracompany entity controlling, controlled by or under the same common control as Grantee, provided that the proposed assignee or transferee must show tinancial responsibility as may be determined necessary by the City and must agree in writing to comply with all of the provisions of the Franchise. Further, Grantee may pledge the assets of the Cable System for the purpose of tinancing without the consent of the City; provided that such 50 Cable Television Franchise pledge of assets shall not impair or mitigate Grantee's responsibilities and capabilities to meet all of its ohligations under the provisions of this Franchise. SECTION 18. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND NOTICES 18.1 Preferential or Discriminatory Practices Prohibited Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color, ethnic or national origin, religion, age, sex, sexual orientation, or physical or mental disability. Throughout the term of this Franchise, Grantee shall fully comply with all equal employment and non-discrimination provisions and requirements of federal, State and local laws, and rules and regulations relating thereto. 18.2 Notices Throughout the term of this Franchise, each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. At the effective date of this Franchise: Grantee's address shall be: Comcast of Washington, IV, Inc. P.O. Box 3042 Bothell, Washington 98041-3042 Attention: Franchising With a Copy To: Comcast Cable - Attention Franchising 1225 Sylvan Way Bremerton, W A 98310 City's address shall be: City of Bremerton, Washington 345 6(h Street, Suite 600 Bremerton, Washington 98337 Attention: City Clerk SECTION 19. lVIISCELLANEOUS PROVISIONS 19.1 Cumulative Rights Subject to applicahle law, all rights and remedies given to the City hy this Franchise or retained by the City herein shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to the City, at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy 51 Cable Television Franchise specifically given by this Franchise or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by the City and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 19.2 Costs to be Borne by Grantee Grantee shall pay for all costs of publication of this Franchise, and any and all notices prior to any public meeting or hearing provided for pursuant to this Franchise. 19.3 Binding Effect This Franchise shall be binding upon the parties hereto, their permitted successors and assigns. 19.4 Authority to Amend This Franchise may be amended at any time by written agreement between the parties. 19.5 Venue The venue for any dispute related to this Franchise shall be in an appropriate court of competent jurisdiction. 19.6 Governing Laws This Franchise shall be governed, construed and enforced in accordance with the laws of the State of Washington (as amended), the Cable Act as amended, any applicable rules, regulations and orders of the FCC, as amended, and any other applicable local, State and federal laws, rules, and regulations, as amended. Except as provided in Section 2.4(C) or otherwise in this Franchise, Ordinance No.4598 and Resolution No. 2862 and Resolution No.2687 are hereby rescinded and of no further force or effect. To the extent there is a conflict between this Franchise and any City Ordinance or Resolution, the terms and provisions of this Franchise shall control. 19.7 Captions The captions and headings of this Franchise are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of any provisions of this Franchise. 19.8 No Joint Venture Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. 19.9 \Vaiver The failure of either party at any time to require performance hy the other of any provision hereof shall in no way affect the right of the other party hereafter to enforce the same. Nor shall the waiver hy either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision. 52 Cable TelevisioJl FraJlchise 19.10 Severability If any Section, subsection, paragraph, term or provision of this Franchise is determined to he illegal, invalid or unconstitutional hy any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other Section, subsection, paragraph, term or provision of this Franchise, all of which will remain in full force and effect for the term of the Franchise. 19.11 Compliance with Federal, State and Local Laws The Grantee shall comply with applicahle federal, state and local laws, now existing or hereafter adopted. 19.12 Force Majeure The Grantee shall not be held in default under, or in noncompliance with, the provisions of this Franchise, nor suffer any enforcement or imposition of damages relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control, including war or riots, civil disturbances, floods or other natural catastrophes, labor stoppages, slow downs, availability of materials, labor or equipment, power outages exceeding back-up power supplies or work delays caused by waiting for utility providers to service or monitor their utility poles to which the Grantee's Cable System is attached. 19.13 Entire Agreement This Franchise, Exhibit I and Exhibit II which is the I-Net Maintenance Agreement represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior oral and written negotiations between the parties. 19.14 Attorneys' Fees If any action or suit arises in connection with this Franchise, either the City or Grantee, as the case may be, shall be entitled to recover all of its reasonable attorneys' fees, costs and expenses in connection therewith as determined by the court. 19.15 Action of the City or Grantee In any action by the City or Grantee mandated or permitted under the terms hereof, it shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. 19.16 Acceptance Within forty-five (45) days of receipt of the Franchise after its execution by the City, this Franchise shall he accepted by Grantee by filing with the City Clerk an unconditional, written acceptance of all of the terms, provisions and conditions of this Franchise. The failure of Grantee to file such an acceptance shall be deemed a rejection by the Grantee and this Franchise shall then be voidable at the discretion of the City. 53 Cable T elevisioll Frallchise SECTION 20. SEVERABILITY I f anyone or more sections, subsections, or senknces of this ordinance are held to he unconstitutional or invalid, such decision shall not affect the validity of the remaining pOl1ion of this ordinance and the same shall remain in full force ancl effect. SECTION 21. EFFECTIVE DATE. This ordinance shall take effect and be in force ten ( 10) clays from ancl after its passage, approval ancl publication as provicled by law. PASSED by the City Council the day of ,2007 WILL MAUPIN, Council President Approvecl this clay of ,2007 CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: PAULA JOHNSTON, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the EFFECTIVE the ORDINANCE NO. clay of day of ,2007 ,2007 54 Cable Televb,,;o1l Fra1lchise CITY COUNCIL CITY OF BREMERTON, WASHINGTON In the matter of the application of Comcast of Washington IV, Inc. for a franchise to construct, operate and maintain facilities in, upon, over under, along, across and through the franchise area of the City of Bremerton, Washington Franchise Ordinance No. ACCEPT ANCE WHEREAS, the City Council of the City of Bremerton, Washington, has !,'Tanted a franchise to Com cast of Washington IV, Inc., its successors and assigns, by enacting Ordinance No. , bearing the date of ,2007; and WHEREAS, a copy of said Ordinance !,'Tanting said franchise was received by the Comcast of Washington IV, Inc. on ,2007, trom said Cityof Bremerton, Kitsap County, Washington. NOW, THEREFORE, Comcast of Washington IV, for itself, its successors and assigns, hereby accepts said Ordinance and all the terms and conditions thereof, and files this, its written acceptance, with the City of Bremerton, Kitsap County, Washington. IN TESTIMONY WHEREOF said Comcast of Washington IV, Inc. has caused this written Acceptance to be executed in its name by its undersigned thereunto duly authorized on this _ day of ,2007. ATTEST: COMCAST OF WASHINGTON IV, INC. By: Its: R:\Lcgal\Lcgal\Ordinancl's\Fi nancc'2()()/ CllnKasl Franchisc.li nal.dllc 55 Cable Television Franchise EXHIBIT I CUSTOMER SERVICE STANDARDS SECTION 1.POLICY Grantee should be permitted the option and autonomy to tirst resolve citizen complaints without delay and interference from the City. Where a given complaint is not addressed by Grantee to the citizen's satisfaction, the City may intervene, if requested to do so by the citizen. In addition, where a pattern of unremedied complaints or noncompliance with these Standards is identified, the City may prescribe a cure and establish a thirty (30) day deadline for implementation of the cure. These Standards are intended to be of general application; however, Grantee shall be relieved of any obligations hereunder if it is unable to perform due to a natural emergency in the region, or in the event of force majeure affecting a significant portion of the City. Grantee is free to exceed these Standards to the benefit of its Customers and such shall be considered performance for the purposes of these Standards. Grantee is responsible to the City to insure that its agents, contractors and subcontractors comply with all applicable provisions of these Standards. SECTION 2. CUSTOMER SERVICE. 2.1. Courtesy All employees of Grantee shall use reasonable good faith efforts to provide effective and satisfactory service in all contacts with Customers. 2.2. Accessibility; Cable System office hours and telephone availability (A) Grantee shall maintain a local, toll-free or collect call telephone access line which will be available to its Customers 24 hours a day, seven days a week. (1) Trained company representatives will be available to respond to Customer telephone inquiries during normal business hours. (2) After normal business hours, the access line may be answered by a service or an automated response system, including an answeri'ng machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. (B) Under normal operating conditions, telephone answer time shall not exceed thirty (30) seconds when the connection is made. These standards shall he met no less than ninety (90) percent of the time under normal operating conditions, measured on a qual1erly basis. (C) Grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards set forth above, unless a historical record of complaints indicates a clear failure to comply. (D) Under normal operating conditions, the Customer will receIve a busy signal less than three (3) percent of the time. (E) A Customer service center which is encouraged or required by the terms of an agreement with the City, will be open during normal business hours. 2.3. Responsiveness; installations, outages and service calls (A) Under normal operating conditions, each of the following five standards will be met no less than ninety (90) percent of the time measured on a quarterly basis: (1) Standard installation will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to 125 feet for an aerial installation and 60 underground feet for an underground installation from the existing distribution Cable System. (2) Excluding conditions beyond the control of a Grantee, a Grantee will begin working on "service interruptions" promptly and in no event later than 24 hours after the interruption becomes known. Grantee must begin actions to correct other service problems the next business day after notification of the service problem. (3) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. For purposes herein, "normal business hours" shall be between 8:00 A.M. to 5:00 P.M., Monday through Friday. Grantee may schedule service calls and other installation activities outside of normal business hours for the express convenience of the Customer. (4) Grantee may not cancel an appointment with a Customer after the close of business on the business day prior to the scheduled appointment unless due to extended work at another location. (5) If Grantee's representative is running late for an appointment with a Customer and will not be able to keep the appointment as scheduled, the Customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the Customer. (B) Grantee shall meet or exceed technical standards established by the United States Federal Communications Commission (the "FCC"). Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions shaII occur during periods of minimum use of the Cable System, preferably between midnight and six a.m. (6:00 a.m.). (C) Grantee's Customer Service Representative shaII have the authority to provide credit for interrupted service, to waive fees, to schedule service appointments and to change bilIing cycles, where appropriate. (D) Billings, refunds and credits. (1) BilIs will be clear, concise and understandable. BilIs must be fulIy itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. BilIs will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. In case of a billing dispute, Grantee must respond to a written complaint from a Customer within thirty (30) days. (2) Refund checks will be issued promptly, but no later than either the Customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or the return of the equipment supplied by Grantee if service is terminated. (3) Credits for service will be issued no later than the Customer's next billing cycle following the determination that a credit is warranted. (4) Upon request, full credit will be given to a Subscriber for the period of an outage if the Subscriber was without service for a period exceeding twenty- four (24) hours. (E) Treatment of Private Property. (1) Grantee shall keep tree trimming to a minimum; trees and shrubs or other landscaping that are damaged by a Cable Operator, any employee or agent of Grantee during installation or construction shall be restored to their prior condition or replaced. Trees and shrubs shall not be removed without the prior permission of the owner or legal tenant of the property on which they are located. (2) Grantee shall, at its own cost and expense, and in a manner approved by the property owner, restore any property to as good condition as before the work causing such disturbance was initiated. Grantee shaII repair, replace or compensate a property owner for any damage resulting from Grantee's installation, construction, service or repair activities. (3) Except in the case of an emergency involving public safety or service interruption to a large number of Customers, Grantee shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, provided that in the case of construction operations such notice shaII be delivered or provided at least twenty-four (24) hours prior to entry. Nothing herein shall be construed as authorizing access or entry to private propel1y, or any other property, where such right to access or entry is not otherwise provided by law, easement, and/or an agreement with the City. For the installation of pedestals or other major construction or installation projects on private property, the property owner and/or resident shall also be notitied in writing at least forty-eight hours in advance. In the case of an emergency, Grantee shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made. Notwithstanding the foregoing, if another Person's property will be affected by work requested by a Customer or potential Customer, Grantee shall endeavor to provide notice to that Person as well. (4) Grantee personnel shall clean all areas surrounding any work site and ensure that all cable materials have been disposed of properly. 2.4 Services for Customers with Disabilities Grantee will use reasonable good faith efforts to meet the special needs of Customers with disabilities. 2.5 Notification to Customers (A) Grantee shall provide written information on each of the following areas at the time of installation of service, at least annually to all Customers, and at any time upon request. (1) Products and services offered; (2) Prices and options for programming servIces and conditions of subscription to programming and other services; (3) Installation and service maintenance policies; (4) Instructions on how to use the cable service; (5) Channel positions programming carried on the Cable System; and, (6) Billing and complaint procedures. (B) Customers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notwithstanding any other provision herein, Grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, agreement fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal or State agency, on the transaction between Grantee and the Customer. (C) All officers, agents, and employees of Grantee or its contractors or subcontractors who are in personal contact with Customers shall have identitication cards bearing their name and photograph. Grantee shall account for all identitication cards at all times. Every vehicle of Grantee shall be clearly visually identified to the public as working for Grantee. All CSRs shall identify themselves orally to callers immediately following the greeting during each telephone contact with the public. 2.6 Customer Privacy (A) Grantee shall not monitor cable television signals to determine the individual viewing patterns or practices of any Customer without prior written consent from that Customer, except as otherwise permitted by Federal Law. (B) Grantee shall not sell or otherwise make available Customer lists or other personally identitiable Customer information without prior written Customer consent, except as otherwise permitted by Federal Law. Grantee is permitted to disclose such information if such disclosure is necessary to render, or conduct, a legitimate business activity related to a cable service or other service provided by Grantee to its Customers. 2.7 Safety Grantee shall install and locate its facilities, Cable System, and equipment in compliance with all federal, state, local, and company safety standards, and in such manner as shall not endanger persons or property. Whenever a Grantee receives notice that an unsafe condition exists with respect to its equipment, Grantee shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition. SECTION 3. COMPLAINT PROCEDURE 3.1 Complaints to Grantee (A) Grantee shall establish written procedures for receiving, acting upon, and resolving Customer complaints, and crediting Customer accounts and shall publicize such procedures through printed documents at Grantee's sole expense. (B) Said written procedures shall prescribe a simple manner m which any Customer may submit a complaint by telephone or in writing to Grantee that it has violated any provision of these Customer Service Standards, or any terms or conditions of the Customer's contract with Grantee. (C) At the conclusion of Grantee's investigation of a Customer complaint, but in no more than thirty (30) calendar days after receiving the complaint, Grantee shall notify the Customer of the results of its investigation and its proposed action or credit. 3.2 Complaints to the City (A) Any Customer who is dissatistied with any proposed decision of Grantee or who has not received a decision within the thirty (30) day period as required shall be entitled to have the complaint reviewed by the City or its designee. (B) The Customer may initiate the review by tiling a written complaint together with Grantee's written decision, if any, with the City. (C) The Customer shall make such tiling and notitication within thirty (30) days of receipt of Grantee's decision or, if no decision has been provided, within forty (40) days after tiling the original complaint with Grantee. (D) The City or its designee may extend these time limits for reasonable cause and may intercede and attempt to negotiate an informal resolution. (E) If the City or its designee determines that the Customer's complaint is valid and that Grantee did not provide the complaining Customer with the proper solution and/or credit, the City or its designee may further pursue the issue with the Grantee and Grantee shall respond to City within 5 business days. 3.3 Overall Quality of Service The City may evaluate the overall quality of Customer service provided by Grantee to Customers: (A) In conjunction with any performance review provided for in an agreement with the City; and, (B) At any other time, at its sole discretion based on the number of Customer complaints received by Grantee and the City, and Grantee's response to those complaints. 3.4 Non-Compliance with Customer Service Standards. Non-compliance with any provision of these Standards is a violation of these Standards. SECTION 4. MISCELLANEOUS 4.1 Severability Should any section, subsection, paragraph, term, or provIsIon of these Standards be determined to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction with regard thereto, such determination shall have no effect on the validity of any other section, subsection, paragraph, term, or provision of these Standards, each of the latter of which shall remain in full force and effect. 4.2 Non-Waiver Failure to enforce any provision of these Standards shall not operate as a waiver of the obligations or responsibilities of Grantee under said provision, or any other provision of these Standards. @omcast~ Corneast Cable Communications, Inc. 440 Yallller Way &N Olympia, WA 98502-8153 INSTITUTIONAL NETWORK MAINTENANCE AGREEMENT BETWEEN Corneast of Was bing ton IV, Inc. AND The City ofBremerton THIS INSTITUTIONAL NETWORK MAINTENANCE AGREEMENT (the "Agreement") is between the City ofBremerton, a Washington municipal corporation, hereinafter the "City," and Corneast of Washington IV, Inc.( formerly known as TCI Cablevision of Washington Inc.) aIkIa Corneast, hereinafter "Comcast". The parties intend to set forth in this Agreement the terms and conditions for provision oflnstitutional Network ("I-Net") maintenance by Comcast. RECITALS WHEREAS, on August 23, 1997, the City granted to Corneast a cable television franchise by Ordinance No. 4598 (the "Franchise"); and WHEREAS, Section 6.2 of the Franchise contemplates the manner in which the City may require the provision of an I-Net; and WHEREAS, Comcast has completed construction of the I-Net and the parties have determined that it is necessary to clarify the terms and conditions for maintenance ofthe City utilized I-Net, for the City, by Corneast. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: See.ion L S~t:tion 2. City I-Net Fiber Connections To City Buildings Within City Limits. Comcast has provided I-Net connections to the public buildings as designated in the mutually agreed upon site list attached hereto as Exhibit "A", with each building connecting to the City Hub. The City shall have an indefatigable, exclusive right of use thereof for non-commercial private network communications, which right cannot be revoked by Comcast, or successor companies, ifany, during the term of the Franchise or any renewals thereof. However, notwithstanding anything in this Agreement to the contrary, Comcast shall at all times own in fee and maintain the outside aerial and underground fiber optic cable and associated facilities and equipment up to said fiber termination points where physically connected to City-owned optronics.n Fiber Construction and Termination. Fiber has been constructed and terminated in accordance with Corneast standard practices, including but not limited to practices concerning connectorization. Comcast is allowed to utilize EXHIBIT II Section 3. Section 4. City-owned conduit with available capacity, at no charge, for fiber construction on City property and in Public R.O.W., and the City has agreed to grant Corncast all necessary rights of entry, easements and licenses to accomplish the construction to the sites referenced hereunder and listed on Exhibit "A," attached hereto. Each fiber connection has been terminated at an internal point of demarcation in a Comcast standard fiber termination panel, unless the City provided another means of termination, in which case the City has provided, at its expense, all necessary fiber termination equipment. At each fiber termination location the City bas provided wall mount backboards and a power source for the basic termination, or such equipment as chosen by the City as a replacement. Maintenance of Fiber. Routine maintenance on the fiber used for City 1- Net purposes and including associated facilities and equipment used exclusively by the City for I-Net communications will be conducted on the same schedule as routine maintenance on Comcast's cable system. Any repairs effected upon the fiber and associated I -Net facilities and equipment shall be perfonned by Comcast, with prior notice to the City when practicable. In emergency conditions, such as a natural emergency resulting from a windstorm, Corncast will effect emergency repair work on the Corneast utilized fiber and City utilized I-Net fiber, if any, in the course of conducting its own emergency repair work on its cable system, excepting where City utilized I-Net fiber may not be co-located with Corneast system plant on a strand or in conduit in which case Comcast fiber shall be repaired as a first priority and City utilized fiber shall be repaired as a second priority. In such event, Comcast shall have no liability to City for such delay in I-Net service restoration. Comeast shall levy an all-inclusive, annual maintenance fee (as hereinafter described) for all routine maintenance, non-emergency and emergency repairs upon the I-Net fiber and associated facilities and equipment from the Corncast side of the I-Net fiber termination panel located at each site out to and including the backbone fiber. Service Trouble Calls and Escalation. The City acknowledges that Corneast does not actively monitor the signal transmission upon City utilized I-Net fiber, and would have no notice of a service outage but for City-initiated notification. For any outages of City utilized I-Net fiber as determined by the City, the City or its designated I-Net site representative shall notifY its information technology ("IT") representative. The City IT representative shall, in turn, contact the Corneast Service Assurance Center ("CSAC") Corneast shall respond to any routine trouble call within four (4) hours of receipt of notification at CSAC and shall actively begin working continuously until the problem is resolved. 2 U&..I Section 5. Administration. Maintenance and Management of the I-Net. The City shall be responsible for the ongoing administration, maintenance and management of the non-backbone I-Net facilities and equipment located on the City side of the I-Net fiber termination panel located at each site, and the internal site network itsel(unless it contracts with Corneast for a managed network. All such maintenance conducted by the City shall be performed in accordance with industry standards, and any equipment owned and used by the City shall comply in all respects with applicable governmental codes, laws, ordinances or regulations. Section 6. City I-Net Users to Provide Electronics. Comcast shall be responsible for supplying and installing the specified fiber optic cable, for the City's use, to the specified fiber termination panel locations only, providing a pathway for I-Net communications between sites. NOTWITHSTANDING, COMCAST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMCAST SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY THE CITY ARISING OUT OF ITS PERFORMANCE UNDER THIS AGREEMENT. IN NO EVENT SHALL COMCAST BE LIABLE TO THE CITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE. Any "active" equipment or components, including but not limited to computers, network cards, optronics, electronics, and equipment racks, required for I-Net use shall be provided at the City's sole expense, unless the City has entered into a separate agreement with Comcast for a managed network, in which case the terms of such agreement shall govern equipment ownership. Section 7. Private Network Status. The City utilized I-Net is a private communication network governed by the Franchise, as amended, and this Agreement, and the City will use the I-Net solely for non-commercial applications in accordance therewith. To-wit, the City shall not lease, resell or grant access privileges to I-Net capacity or services to a third party, for any purpose whatsoever. The City will not attach any equipment or otherwise modifY the I-Net in any way that will interfere with the signal quality and the normal operation ofComcast's cable system, and Comeast reserves the right to immediately suspend until rectified the City's rights granted hereunder in the event such interference should occur. The City shall be notified within 4 hours of such occurrence or within 4 hours of the next business day the City is available to receive such a call. Such unilateral suspension shall not place Corneast in violation of the Franchise or constitute a breach of this Agreement. The City may not access any part of the backbone fiber and associated facilities and equipment outside the 3 J.lL.I actual I-Net site fiber tennination panel; the City's permitted access shall in no event extend beyond the City's side of the fiber termination panel. The City's use of the I-Net contemplated herein shall not qualify Comeast as a common carrier, and City agrees to forebear its rights hereunder indefinitely in the event of inquiry into same by a state or federal agency with oversight. Section 8. Undergrounding. When electric and telephone utility wiring and the aerial lines of telecommunications providers in an area of the City are relocated underground, Corncast shall, in accordance with its obligation, if any, under the Franchise, place its cable system and I-Net lines underground at the same time. Comeast shall be responsible for costs associated with the placement ofl-Net utilized fiber when Comcast's system fiber is placed underground at the same time . Section 9. Cost on-Net Maintenance: Annual Maintenance Fee. The ongoing maintenance and repair of the City utilized I-Net backbone fiber, whether scheduled or prompted by an emergency. shall be performed by Comcast as part of an annual maintenance fee. Such fee, payable by the City to Corneast at commencement of the City's next fiscal year following execution of this Agreement and each anniversary thereafter, shall initially be Five Hundred and No One Hundredths Dollars ($500.00) per strand mile per year. Current total I-Net strand mileage shall be indicated on Exhibit "B", attached hereto. Such fee shall apply without regard to number of necessary non-emergency or emergency repair incidents required, and shall cover, without limitation, restoration of outages caused by third-party plant damage or damage wrought by inclement weather, quarterly system drive-outs for preventive maintenance, code compliance inspections, fiber functionality testing and re-documentation, pole change- outs and relocation, strand replacement, strand/facilities re-tensioning, anchoring, all labor, materials and equipment charges and associated engineering costs. City shall make payment within ninety (90) days of receipt of the invoice. Should City fail to make payment within such period, City shall be assessed an interest charge from the date payment was due at an annual rate of the then current prime rate plus two (2%) percent. Section 10. Annual Maintenance Fee Increase. Effective on the first anniversary of the initial invoicing of the City for the annual maintenance fee (the "Adjustment Date"), and on each succeeding anniversary during the term of the Franchise, the annual maintenance fee payable by City to Comcast shall be increased by an amount equal to the increase in the Consumer Price Index for Seattle- Tacoma-Bremerton (All Urban Consumers) (the "Index") published most inunediately preceding that date which is twelve (12) months prior to the Adjustment Date; provided, however, that in no event shall the annual maintenance fee payable after the Adjustment Date be less 4 than the annual maintenance fee payable before the Adjustment Date. Comcast shall not be obligated to make any adjustments or re- computations, retroactive or otherwise, by reason of any revision which later may be made in the Index figures first published for any period. If the CPI or the Index is discontinued, the parties shall follow any official consumer price index, whether so named or designated or not, issued by any authorized agency of the United States which supplants the Index; otherwise, the parties shall use any comparable general wholesale or retail price index for the United States jointly selected by City and Comcast. Section 11. Force Maieure. No party shall be in default or liable to the other for any fuilure or performance under this Agreement due to causes beyond its control (except for the fulfillment of payment obligations as set forth herein), including, but not limited to: acts of God, fire, flood or other catastrophes; adverse weather conditions; national emergencies; insurrections; riots, wars; or strikes, lock-outs, work stoppages or other labor difficulties; provided, however, the party that is unable to perform its obligations shall promptly notify the other party of such delay and the time period shall be extended for the actual amount of time said party is so delayed. Section 12. Entire Agreement. This Agreement represents the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes aU prior oral negotiations and agreements between them. All other provisions of the Franchise shall remain in full force and effect. AGREED TO BETWEEN THE PARTIES on the last date written below. Comcast of Washington IV, Inc. By: sident - Finance 5 By: CAr 80u its: M;go t" Date: /1-.;1.'-1-0.3 P:'CiviI\FILES\OpenFilesIBremertonINET Maintaincn<:c Agreemenldoc 6 EXHIBIT A SITES: 1. City Hall 239 Fourth Street Police & Courts 239 Fourth Street 2. Public Works 100 Oyster Bay 3. Utilities Headquarters 3027 Olympus Drive 4. Parks And Recreation 680 Lebo Blvd. 5. Wastewater Treatment Plan 1600 Oyster Bay 6. Fire Station No. 1 817 Pacific Ave. 7. Fire Station No.2 5005 Kitsap Way 8. Jarstad Aquatic Center 50 Magnuson 9. Senior Center 1140 Nipsic 10. West Police Precinct 4846 Auto Center Way 7 EXHIBIT "B" ,--.., Bremerton I-Net consists of 57,029' of system plant strand miles. 57029' = 10.8 miles 8 DATE SUBMITTED: May 1,2007 BILL # __D 7 ____1;;L S- AGENDA BILL CITY OF BREMERTON CITY COUNCIL G,D ........................................~............................................... SUBJECT: Budget Adjustment for installation and maintenance oft10wer baskets on Callow A venue Committee Meeting Date: May 9, 20C>7 COUNCIL MEETING Date: May 16,2007 Department: Parks and Recreation Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: Expanding the City's Horal color program on Callow A venue between Burwell and 9lh Street will beautify a highly visible entryway to Bremerton and help to make the area more attractive for shopping and commerce. The Parks and Recreation Department is requesting a budget adjustment of $4,400 in supplies to pay for pole hangers, baskets, Hower plugs and planting soil and $3,000 of part-time labor for daily watering and care of the 28 flower baskets. ATTACHMENTS: Itemized cost estimate for supplies and labor. FISCAL IMPACTS (Include Budgeted Amount): Total fiscal impact is $7,400 for 2007. This is an unbudgeted item for 2007 and will require an amendment to the adopted budget to proceed. Funds will be provided by the General Fund-ending fund balance. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: ~~- - (/. CONSENT AGENDA 0 GENERAL BUSINESS ~ PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve the Park and Recreation Department's request for a budget adjustment of$7,400 to install and maintain 28 pole mounted t10wer baskets on Callow A venue between Burwell and 9th Street; and to budget $7,400 from the 2007 General Fund ending balance to the Parks Fund. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action Cost For Flower Baskets on Callow Ave. Between 9th and Burwell Materials 28 baskets and hangers Steel banding for poles Pot holders and castings Flowers Soil\fertilizer Subtotal Materials 900 1,100 1,700 400 300 $ 4,400 Labor for watering, fertilization and flower replacement 200 hrs @ $15 per hr Total 2007 Cost 3,000 $ 7,400 DATE SUBMITTED: May 3, 2007 BILLlI 07- (d-0 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 'e ........................................................................................ SUBJECT: Justice Assistance Grant for 2007 Committee Meeting Date: COUNCIL MEETING Date: Department: Presenter: Phone: May 9, 2007 May 16, 2007 Police Chief Rogers 473-5750 SUMMARY: The City of Bremerton Police Department applied for an Edward Byrne Memorial Justice Assistance Grant (JAG) that will allow the City of Bremerton to support a broad range of activities to prevent and control crime based on our own local needs and conditions. These needs are to purchase training equipment needed to protect and preserve valuable Police and City provided resources. Funds will also purchase ancillary prevention and education equipment which is needed to improve community policing services. The grant is from the Department of Justice. No matching funds are required of the City. The total grant amount is $63,798.00. The grant duration is through September 2011. ATTACHMENTS: Budget Narrative of the Grant Application FISCAL IMPACTS (Include Budgeted Amount): None. The JAG funding is a revenue source for $63, 798.00. It will provide dollars for training and associated equipment purchases. COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA D GENERAL BUSINESS J8[ PUBLIC HEARING D APPROVALS: DEPARTMENT DIRECTOR: . CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: RECOMMENDED MOTION: Move to approve the Justice Assistance Grant for 2007 for equipment and training funding. COUNCIL ACTION: D Approve D Deny D Table D Continue D No Action Bud2et Narrative CAtch 2) The Multiple Interactive Leaming Objectives (MILO) training system generates simulated leaming environment for use with any teaching training or testing objective. The unit will be stationed in the Department's defensive tactics room and jointly maintained with in-house staff and vendor support. Senior leadership believe this is the top priority for training equipment purchases and essential for preparing officers to better protect the community from criminal and terrorist threats. $63,798.00 The MILO Range (Multiple Interactive Learning Objective) system is a state of the art training tool that uses computer generated video environments for officers to interact with. It can be used for teaching proper tactics, training, testing judgment, decision making, reaction and weapons handling. The system provides unlimited training scenarios. While many scenarios cover every day situations that officers are likely to encounter, the options also include response to school shootings, hostage situations and other incidents that present an extreme risk to officers and to the vulnerable public from domestic and other terrorism acts. The MILO system will allow the Bremerton Police Department to train officers frequently and to an intensity and level of proficiency that can not easily be replicated or simulated through other instructional means. The desired goal of this quality training will result in a higher level of officer competency which positively impacts and leads to higher officer safety, higher public safety and decreasing or lowering exposure to legal risk. The system will allow the Department to prepare officers for a multitude of high risk events that previously were not possible to train for; and accomplish the training in a timely and cost effective manner. Equipment: Total: MILO Training Range T ASER Module AR-15 Kit Video Capture Return Fire Cannon $44098.00 $2200.00 $2600.00 $8400.00 $6500.00 $63798.00 $63,798.00 Total expenditure DATE SUBMITTED: May 9, 2007 BILL # 07-- I ~ 7 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 7A ......................................................................................... SUBJECT: Public Hearing and Ordinance No. F50 13 vacating a portion of alleys lying adjacent to former City Hall between Burwell & 4th Streets and Washington & Pacific Avenues Committee Meeting Date: COUNCIL MEETING Date: May 16, 2007 Department: Public Works & Utilities Presenter: Mike Mecham Phone: 473-5288 SUMMARY: The city has initiated a vacation of portions of the alleys lying adjacent to former City Hall between Burwell & 4th Streets and Washington & Pacific Avenues. A public hearing is scheduled for May 16, 2007 regarding the vacation. The proposed ordinance vacates portions of the alleys lying adjacent to former City Hall between Burwell & 4th Streets and Washington & Pacific A venues. ATTACHMENTS: Proposed Ordinance; Site map FISCAL IMP ACTS (Include Budgeted Amount): None COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA D GENERAL BUSINESS D PUBLIC HEARING APPROV ALS: DEPARTMENT DIRECTO CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: RECOMMENDED MOTION: Move to pass Ordinance No. 5013 vacating portions of the alleys lying adjacent to former City Hall between Burwell & 4th Streets and Washington & Pacific Avenues COUNCIL ACTION: D Approve D Deny 0 Table o Continue D No Action ORDINANCE NO. 50 /3 AN ORDINANCE of the City Council of the City of Bremerton, Washington, relating to the vacation of portions of Alley lying adjacent to fom1er City Hall properties, between Burwell and 4th Streets and Washington and Pacific Avenues. WHEREAS, the City initiated a vacation of portions of the alley lying adjacent to the fonner City Hall properties, between Burwell and 4th Streets and Washington and Pacific Avenues; and WHEREAS, the abutting property owner has agreed to dedicate a new right-of- way to allow f~r replacement and re-alignment of the right-of-way. WHEREAS, the City passed Resolution No. 3028 declaring its intention to vacate these portions of the alley lying adjacent to the former City Hall properties, which resolution also set a hearing to take public comment or consider written objections to the vacation; and WHEREAS, a public hearing was held with proper notice on May 16, 2007, in the City Council Chambers at the Norm Dicks Govemment Center 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; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The foregoing recitals are incorporated as if fully set forth herein. SECTION 2. Vacation. Those portions of the alley lying adjacent to the former City Hall properties, between Burwell and 4th Streets and Washington and Pacific Avenues, as described in Exhibit A, which is attached and incorporated herein by this reference, is hereby vacated to the abutting property owner subject to the following condition: The abutting property owner shall dedicate a new right-of-way as described in Exhibit B attached hereto and incorporated herein by this reference, or as otherwise approved by the City. The street vacation herein shall be effective upon the recording of a deed dedicating the new right-of-way. 1 Street Vac.ation - Portion of the alley behind former City Hall SECTION 3. Easements. The granting of this vacation is subject to no easements. SECTION 4. Vested Rif,!hts. No vested rights shall be affected by the provisions of this ordinance. SECTION 5. Severability. If anyone 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. PASSED by the City Council the day of ,2007. WILL MAUPIN, Council President Approved this day of ,2007. CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: Paula Johnston, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the EFFECTIVE the ORDINANCE NO. day of day of ,2007. ,2007. R:\Legal\Legal\Ordinances\Public Works & UtilitiesWacation - Portion of Alley behind old City Hall.doc 2 Street Vacation - Portion of the alley behind former City Hall EXHIBIT A Vacation of those portions of the alley lying within Block 7 of the Plat of the Town of Bremerton, as recorded in Volume 2, of plats Page 030, records of Kitsap County, Washington, situate in Government Lot 3, Section 13, Section 24, Township 24 North, Range 1 East, Willamette Meridian, Kitsap County, Washington, as further described below: Portion of the alley lying adjacent to and abutting Lots 22 and 23 of said Block 7; Portion of the alley lying adjacent to and abutting the easterly 10 feet of Lot 14 of said Block 7; Portion of the east-west alley adjacent to and abutting Lot 15 of said Block 7. Vacation of Porlion of Alley Behind Former City Hall May 7, 2007 EXHIBIT B DEDICATION AREA The westerly 20 feet of Lot 14, Block 7 of the Plat of the Town of Bremerton, as recorded in Volume 2, of plats Page 030, records of Kitsap County, Washington, situate in Government Lot 3, Section 13, Section 24, Township 24 North, Range 1 East, Willamette Meridian, Kitsap County, Washington. Dedication of Portion of Plat for New Alley behind Former City Hall May 7,2007 EXHIBIT FOR ALLEY VACATION PORTION OF SEC. 13 T. 24 N. R. 1.E., WM. CITY OF BREMERTON 10/31/06 S.J. DATE SUBMITTED: May 9, 2007 BILL # 07-/:>.-8 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 78 ........................................................................................ SUBJECT: Public Hearing and Ordinance No. 50 I 4_ vacating a portion of former County Road No. 305 adjacent to Marine .. Drive Committee Meeting Date: COUNCIL MEETING Date: May 16,2007 Department: Public Works & Utilities Presenter: Mike Mecham Phone: 473-5288 SUMMARY: As part of the dedication and construction 6fMarine "Drive in 1933, Kitsap County was required to vacate County Road No. 305 back to the adjacent property owners. The vacation was never completed by the County and the City annexed this area in 1961. As such the responsibility for the vacation transferred from the County to the City. A public hearing is scheduled for May 16, 2007 regarding the vacation. The proposed ordinance vacates a portion of former County Road No. 305 adjacent to Marine'" Drive. ATTACHMENTS: Proposed Ordinance FISCAL IMP ACTS (Include Budgeted Amount): None APPROV ALS: DEP ARTMENT DIRECTO CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA 0 GENERAL BUSINESS 0 PUBLIC HEARING RECOMMENDED MOTION: Move to pass Ordinance No. 5011 vacating a portion of County Road No. 305 COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action ORDINANCE NO. 5014 AN ORDINANCE of the City Council of the City of Bn:merton, Washington, relating to the vacation of a portion of County Road No. 305 in the City of Brcmcrton. WHEREAS, in constructing Marine Drive in 1933, Kitsap County was requircd to vacate County Road No. 305 back to thc adjacent propc11y owncrs. The vacation was never completed by the County and the City annexed this area in 1961 and has recently been made aware of this situation; and WHEREAS, the City has initiated the vacation ofa portion of the County Road No. 305 in the City of Bremerton; and WHEREAS, the City passed Resolution No. 3029 declaring its intention to vacate this portion of the County Road No. 305, 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 May 16,2007, 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; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The foregoing recitals are incorporated as if fully set forth herein. SECTION 2. The portion of County Road No. 305 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 owners including any and all easements contained therein. SECTION 3. No vested rights shall be affected by the provisions of this ordinance. SECTION 4. Se vera bilitv. If anyone or more section, subsections, or sentcnces of this Ordinance arc held to be unconstitutional or invalid, such decision shall not atIect the Street Vacatioll - COllllfy Road No. 305 validity of the remaining portion of this ordinance and the same shall remain in full t()I-ce and effect. SECTION 5. E//'ective Date. This ordinance shall take effect and be in force ten (10) days from and atter its passage, approval and publication as provided by law. PASSED by the City Council the day of ,2007. WILL MAUPIN, Council President Approved this day of ,2007. CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: Paula Johnston, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the EFFECTIVE the ORDINANCE NO. day of day of ,2007. ,2007. R:\Lcgal\Lcgal\Ordinanccs\Puhlic Works & Utilitics\Vacation - County Road #305.doc 2 Street Vacatio/l - County Road No. 305 EXHIBIT A Legal Description Vacation of County Road No. 305 That portion of County Road No. 305 lying within the north 15 acres of Government Lot 3, Section 15, Township 24 North, Range 1 East, W.M., Kitsap County, Washington. --.-. ---. -----~-_.- - .~ - --- --------,-..-.--...--- -._-- ----_.__.~._--_. .. - ---,,- - .. ::/"0 - 90/8&/7 ~ : JlVM (3L21 (NfrZl (qL :J3S ~O NO/l210d NOll VJ VII . ~O~# Ov02i Ai NnOJ 210~ 1/8/HX3 '-~--'_._---'"-----'--'-'------------~----,,----------~_.. _._._----~----._----"--_._--_._-~----_._.~_.~------_.~_..._-------_._------------_._---~----------,--- --_..~- -----...__.~----- ------------.-.