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Home My WebLink About12/16/2009 AGENDA I �� =-- � � i Ij � ' �,L .�, � CITY COUNCIL 345 6� Street, Suite 600, Bremerton, WA 98337 ❑ Phone (360) 473-5280 ***AMENDED*** DECEMBER 16, 2009 CITY COUNCIL MEETING AGENDA 1. BRIEFING 5:00 — 5:30 P.M. in COUNCIL CONFERENCE ROOM 603 � A. General Council Business 2. CALL TO ORDER 5:30 P.M. in FIRST FLOOR CHAMBERS A. Pledge of Allegiance -� B. I nvocation 3. MAYOR'S REPORT 4. PUB�IC RECOGNITION 5. CONSENT AGENDA A. Claims & Check Register B. Minutes of Meeting — December 2, 2009 C. Minutes of Study Session — December 9, 2009 D. Agreement with KiTSaP HunnANE SoCiEnr for Animal Control Services E. , Pulled down to General Business as Item �6A F. Ordinance No. 5100 establishing a Cable Television Franchise Agreement with WavE Divisiotv IV, LLC G. Intergovernmental Cooperative Purchasing Ag'reement with Washington State Office of Procurement . H. Award Contract to MicHE�s CoRPO�Tiotv for Construction of "Cambrian Avenue Sewer Repair" Project I. Amendment to Professional Services Agreement with PA�nnETRix, INC. for Construction Support of the "Gorst Sewerage" Project J. Amendment to State Revolving Fund Loan Agreements for the "Gorst Sewerage and Septic System Abandonment" Project K. Amendment to extend the Gold Mountain Gotf Club "Greens Superintendent Professional Services ` Agreement" Wlth ED FAULK OPERATIONS LLC to December 31, 2010 `; L. Amendment to extend the term of the Gold Mountain Golf Club "Golf Management Agreement" with SCOTT ALEXANDER'S GOLF SHOP INC. by one-year to December 31, 2010 M. Amendment to extend the Gold Mountain Golf Club "Pro Shop, Driving Range, and Cart Pad Lease Agreement" Wlth SCOTT ALEXANDER'S GOLF SHOP INC. by one-year to December 31, 2010 N. Amendment to extend the Gold Mountain Golf Club "Food and Beverage Agreement" with Scorr ALEXANDER'S GOLF SHOP Itvc. for one additional year to December 31, 2010 � Continued on back... � Americans with Disabilities Act (ADA) accommodations provided upon riequest. Those requiring special accommodations should , contact the City C/e►1c's O�ce at (360) 473-5323 by noon on the Monday p►�ceding the Council meefing. 6. GENERAL BUSINESS A. Second Amendment to Professional Services Agreement with DIAMOND PARKING SERVICES LLC for Parking Enforcement Services B. Professional Services Agreement with LoR�c PARTivERS, INC. for Design, Management, and Marketing of "Park Avenue Plaza Garage" Project C. Design/Build Agreement with Di��otv WoRKS! INC. for custom sculptures at 4�' Street & Pacific Avenue D. Ordinance No. 5101 to amend Ordinance No. 5071 which adopted the Fiscal Year 2009 Budget, and Ordinance No. 5079 which amended the Fiscal Year 2009 Budget 7. COUNCIL MEMBER REPORTS � 8. ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING � , � Americans with Disabilities Act (ADA) accommodations provided upon request Those requiring special accommodations should contact the City Clerlc's O�ce at (360) 473-5323 by noon on the Monday prt�c;eding the Council meeting. COUNCIL MEETING SPEAKERS LIST PLEASE PRINT YOUR NAME BELOW IF YOU WISIT YOUR COMMENTS TO BE INCLUDED IN TH]E RECORD J ✓�i�.J G �(�7( Z. �� '� 1'1(� ,�L �Q�'�'�✓L �rPi�'� (r�a r�Gl �� ' �� S / /I�� Gaa IIM REQUESTS FOR INFORMATION MUST BE SUBMITTED IN WRITING TO THE CLERK THANK YOU DATE SUBMITI'ED: 12/16/2009 AGENDA BILL � CITY OF BREMERTON CITY COUNCIL ..........................................................................................., SUBJECT: Committee Meeting Date: COUNCIL MEETING Date: December 16, 2009 Claims & Check Register Department: Financial Services Presenter: Cathy Johnson Phone: 473-5296 � SUMMARY: Consent Agenda item. Approval of checks and electronic fund transfers. ATTACHMENTS: Check Register. FISCAL IlVIPACTS (Include Budgeted Amount): APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: CONIlVIITTEE CHAIR COUNCIL PRESIDENT: ` ��,. CONSENT AGENDA � r GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: 1) Check #'s 335059 through 335269 and EFT's 9385 through 9420 in the amount of $2,549,671.63. 2) Regular Payroll for the pay period ending November 30, 2009 in the amount of $771,658.80. COUNCIL ACTION: � Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action i�.�ii. �� i;�-�ti i��.n. .�c:H:;�n:� �;tt.�. ('IT�' OF' BRF:'�1�ftTON CI"fY COUti('IL .......................................................................................� Sl [3JF.CT: C'ity ('uuncil �Ytcctin� :�linutcs Cuinm�ttc� Mcctin� Uat�: V,A fur mcrtin� uf ('c)l:tic'll. ��11:1: l'INC� t)atr: �� ,�^ J�o� � Ob� ��eVy��p�'' �� AO� Dcpartmcnt: City C ouncil Prescntcr: Cccil McConncll Cuuncil Presidcnt ('h�►ne: (360) 473-�?80 SUMi�1ARY: Attached is a summary of the City Council Meetin� held (��yy��-- 2�, Zc�o� ATTACHNIENTS: Meeting Minutes for D��UP�-- �� oo `j FISCAL IMPACTS (Include Budgeted Amount): N/A APPROVALS: DEPARTMENT DIRECTOR: Council President CITY ATTORNEY: N/A FINANCE DIRECTOR: N/A MAYOR: N/A C'OMMITTEE CHA[R N/A , C'OUNCIL PRESIDENT: �r� , � , �. � �.,., �, , � CONSENT AGENDA � � ,� . �-� �� l�! GENERAL BUSINESS ❑ PUBLIC HEARfNG ❑ RECO1�I�ti1F.NDED 1IOTION: i�tuvc to <<pE�co��c th� Cunscnt ,��cncla �is pr�s�ntc�i. ('O['�ICIL ACT1ON: ❑ :1ppr��ve ❑ Ueny ❑ 'I�ahl� � ( �t)IlUT1LIC ❑ N�� .�ction DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, December 2, 2009 The weekly meeting of the City Council of the City of Bremerton was called to order Wednesday, December 2, 2009, at 5:00 PM in Council Conference Room 603 of the NoRM DicKS GovERtvnnEtvT CENTER, 345 6' Street, Bremerton, Washington, with Council President Cecil McConnell presiding. Council Members present were Nick Wofford, Will Maupin, Carol Arends, Dianne Robinson, Mike Shepherd, Roy Runyon, Adam Brockus, and Brad Gehring. Also present were City Attorney Roger Lubovich, City Clerk Carol Etgen, and Council Assistant Christine Grenier. A COUNCIL BRIEFING was held to discuss General Council Business; and at 5:30 PM the meeting moved to the First Floor Meeting Chambers. The Pledge of Allegiance was led by Council Member Brad Gehrinq followed by the invocation provided by Minister Tanva Johnson of Emmanuel Apostolic Church. MAYOR'S REPORT Mayor Patty Lent... • Reported on a very busy first week in office which included meeting with Kitsap Regional Coordinating Council and Kitsap Health District boards, a roundtable with other mayors from Kitsap cities, and various meetings with City Department Directors and Management staff; • Enjoyed a pleasant Thanksgiving holiday; and • Looked forward to working with administration and Council in 2010. PUBLIC RECOGNITION Paula Stenz, of new non-profit group "Soul Works", announced that there will be employment opportunities to bring rain gardens to Bremerton and this program witl help people gain work experience after getting through challenging life experiences such as addiction, unemployment, and displacement. Vern LaPrath congratulated Patty Lent as the new mayor; encouraged the City to cut spending and to not raise taxes in order to balance the budget; and hoped the community would support the City of Lakewood in response to the loss of the their four police officers. Kimberlv Tavler thanked Mike Shepherd for his 12-years of service and for supporting the community around Evergreen Park by helping to improve parking, sewer, and park expansion; and welcomed Greg Wheeler as the incoming new District 5 Council Member. Mike Shepherd thanked them for their support. The following "Friends of Evergreen Park" spoke in opposition to the proposed housing project near Evergreen Park... Catherine Purves encouraged Council to consider the impact that the proposed housing project will have on current residents and Evergreen Park with respect to parking and traffic. Tim Henkel emphasized that the project will completely block the view from his properties and was concerned that the project's scale was inappropriate for the proposed location and that the rental ,housing involves a higher rate of crime. Kris DaY read a statement on behalf of Kyle Cruver, that this project will negatively impact Evergreen Park and impact the residential nature of the community. H. Emilv Moshay was concerned that the project, if built, would impact businesses like CJ's Evergreen Store and the community would no longer be a close knit family-friendly safe neighborhood; and the project does not fit in the Evergreen Park area. David Mercer does not believe that Evergreen Park will be able to handle the stresses that the project would produce; and encouraged Council to "think this through". City Council Reg. Mtg. Minutes Wednesday, December 2, 2009 Page 2 of 6 Kris Garland expressed concerns that the proposed project would only allow one parking space per unit which is inadequate and parking at Evergreen Park does not have the capacity to pick up the overftow from additionai vehicles from visitors or residents; was against reckless development. Lisa Lawrence did not believe that the City's Engineering Department has not addressed traffic; and added that the estimated traffic is about an additional 820 vehicle trips per day in the area of the project; and thanked Mr. Shepherd for his service to the neighborhood. Bill Hoke also recognized Mr. Shepherd's contributions and welcomed the new mayor; could not fathom the amount of traffic that would come to that neighborhood; encouraged planners to outline how much sunlight would be lost by allowing the structure to be built. Raven Ravne supported greater density and new housing stock; and asked for a moratorium to prevent this project until planners, architect, and developers can meet to find a solution that fits for Evergreen Park. Jim Pecoad believed that this project will overshadow the park and the lack of light will limit the use of the park. City Clerk Carol Etqen added that a letter was also provided by John Larson in opposition to the proposed project near Evergreen Park and that the letter will be made part of the meeting record. CONSENT AGENDA A. Check Numbers 334828 through 335058; and EFT-9327 through EFT-9384 in the amount of $2,447,155.25; and Retiree Payroll in the amount of $78,887.77 for the pay period ending November 30, 2009. B. Minutes of Meeting — November 18, 2009 . C. Award Contract to CALGON CARBON CORPORATION for Pre-Purchase of UV System Equipment for "UV Treatment Facility" Project D. Award Contract to SCI ItvFRASTRUCTURE for Construction of "Gorst Sewarage and Septic AbandonmenY' Project There were no questions or comments from the public... 06:12:50 M/S/C/U (Arends/Brockus) Move to approve the CotvsENT AGEtv�A as presented. GENERAL BUSINESS 6A — RESOLUTION NO. 3103 TO ASSUME A PORTION OF INDEBTEDNESS FOR THE SOUTH KITSAP FIRE & RESCUE (SKFR) LONG TERM DEBT ATTRIBUTABLE TO THOSE PROPERTIES WITHIN THE SOUTH KITSAP INDUSTRIAL AREA (SKIA) ANNEXED TO THE CITY OF BREMERTON: Andv Parks, Financial Services Director, summarized that the City annexed the South Kitsap Industrial Area (SKIA) effective April 1, 2009 and other adjacent , properties during 2009. The annexation actions taken did not specify whether or not the City would assume the non-voter approval general obligation debt attributable to the annexed property. As the County Assessor prepared the tax statements they noted this, and have inquired as to whether or not the City intended to assume this liability. The total indebtedness to be assumed, if the Council agrees, is $7,227.65 (principal only). If not, the annexed property owners will be levied a tax of approximately $0.0369 per $1,000 (of assessed valuation) in 2010. The City's tax rate after the annexation in 2009 is $1.96. 06:16:12 Motion was made and discussion by Council Members continued... City Council Reg. Mtg. Minutes Wednesday, December 2, 2009 Page 3 of 6 Adam Brockus asked if any of the property is located on Port of Bremerton property and if so, will the Port help assume debt. Andv Parks answered yes, the property is located within the Port and the Port is a major land owner. However, they will not be assessed the tax. Also, it was the City of Bremerton that initiated the SKiA Annexation and therefore will assume responsibility for the additional liability. Mike Shepherd pointed out that while the City may be assuming debt, we will also be receiving revenue as part of the annexation. Mr. Parks continued that the effect of this action will ensure property owners in that area are not double-taxed. Rov Runvon hoped that in the future that Council would be informed of such debt obligations at the time of annexation. Mr. Parks responded that legal counsel reviewed this matter, and that this is a new issue since the annexation just occurred. From here forward we will be considering this issue and Council will be kept in the loop. Brad Gehrinq provided his support; and commented that the Fire Department has assumed responsibility for SKIA and this is cleaning up the details. Mr. Parks added the overall percentage of debt being assumed is less than a half %. Mr. Brockus asked if the original debt was set originally by levy or bond. Mr. Parks responded that the debt was caused by Council manic action through annexation which was considered non- voter approved general obligation debt. 06:20:45 M/S/C (Runyon/Shepherd) Move to approve Resolution No. 3013 assuming portion of indebtedness of South Kitsap Fire & Rescue attributable to annexed properties. Voted in favor of Motion: Runyon, Shepherd, Robinson, Arends, Maupin, Wofford, Gehring, McConnell Voted opposed to Motion: Brockus � Motion carried: 8-Yes; 1-No PUBLIC HEARINGS 7A = PUBLIC HEARING REGARDING ORDINANCE NO. 5097 TO ADOPT UTILITY RATES AND GENERAL FACILITIES CHARGES: AND TO AMEND CHAPTER 15.06 OF THE BREMERTON MUNICIPAL CODE: Andv Parks, Financial Services Director, explained that the proposed ordinance amends Appendix A of Section 15.06.015 relating to assessments, rates, fees, and charges for municipal water, wastewater, and stormwater services by establishing new rates for all categories to implement a 3% rate increase effective January 1, 2010 and an additional 3% rate increase effective July 1, 2010. This public hearing was continued from the Council Meeting on November 18, 2009. President McConnell opened the Public Hearing for comments... President McConnell stafed that with no further comments, the Public Hearing was now closed to tl�e public as discussion was opened to the Council... Carol Etgen re-read the Main Motion as made by Wofford and seconded by Maupin during the Public Hearing on November 18... "Move fo approve Ordinance No. 5097 adopting new utility rates effective January 1, 2010 and July 1, 2010, and amending Chapter 15.06 of the Bremerton Municipal Code (BMC)"and discussion by Counci! continued... Rov Runvon asked for clarification on PILOT and proposed increase in utility rates. Mr. Parks explained that the Council encouraged the administration to fund general fund programs with appropriate revenue like PILOT from utility funds; and added that the staff is prepared to consider other options if rates are not raised. City Council Reg. Mtg. Minutes Wednesday, December 2, 2009 Page 4 of 6 Dianne Robinson asked if we are meeting the necessary level of the service within the utilities. Phil Williams answered yes, financially speaking; and that he was not certain if PILOT would be a continuous source of funding after 2010. Ms. Robinson did not support �ny rate increases at this time. Adam Brockus asked if property taxes could be raised instead of utility rates. Mr. Parks answered that Council already approved the 1% increase. Mr. Brockus also raised questions about natural gas purchases and related taxes. Mr. Parks stated that changes in actual revenue have caused an impact of approximately $700,000 to the current budget. Brad Gehrinq asked if there any specific cost reductions to generate enough revenue to offset the use of utility reserves. Mr. Parks responded that there may be future discussions regarding fire department consolidation, setting up a regional parks district, annexation, and expanding economic development. Mr. Williams encouraged Council to increase rates; and emphasized that a reduction in reserves would mean that there would be less funds to work on future capital projects. Nick Wofford asked if the timing for a proposed rate increase would be more appropriate after the utility rate study and efficiency review are completed in 2010. Mr. Parks answered responses from those studies would have to be evaluated and that any action would be up to Council. Will Maupin hoped that former rate increases which brought the utilities into a solvent state would mean that no increases would be needed now; and stated that using reserves now may result in a rate increase later to pay for projects to be paid out of the enterprise fund. Cecil McConnell did not support tax increases at this time or the idea that the rate payers should support the general fund. Rov Runvon asked for more information on how citizens can receive financial support for paying their utility bills. Mr. Williams explained that there are programs available which provide energy assistance for low-income residents through a partnership with Puget Sound Energy and Kitsap Community Resources. Adam Brockus requested historical information on the reserves. Mr. Williams responded that in 2004 Wastewater reserves had deteriorated below 12% of operation and maintenance budget and money was being borrowed from other funds and that the Water balance had dropped as well. 06:58:45 M/S/F/U (Wofford/Maupin) Move to approve Ordinance No. 5097 adopting new utility rates effective January 1, 2010 and July 1, 2010, and amending Chapter 15.06 of the Bremerton Municipal Code (BMC)". Counci! recessed at 6:59 PM and reconvened at 7:09PM... PUBLIC HEARINGS — Continued... 7B — FINAL PUBLIC HEARING ON ORDINANCE NO. 5099 TO APPROVE AND ADOPT THE 2010 ANNUAL CITY BUDGET: Andv Parks, Financial Services Director, summarized that the City of Bremerton prepares its budget on an annual basis under the authority granted by Chapter 35.33 RCW. The budget process is designed to meet the operations and service needs of the City by integrating the planning and implementation of City programs and objectives with the allocation of resources sufficient to support such services and programs within the limits of available funds. A preliminary annual budget for fiscal year 2010 has been prepared and fi�ed with the Office of the City Clerk. Public hearings have been held for the purpose of fixing the final City Budget and the City Council has deliberated prior to the approval and adoption of the budget. One change has City Council Reg. Mtg. Minutes , Wednesday, December 2, 2009 Page 5 of 6 been made to the preliminary budget. Within the General Fund, the City Council appropriation has been increased $1,000 and Financial Services appropriation decreased $1,000, for a net effect of $0 on the Generai Fund. There are no other changes proposed at the time of submitting this agenda bill. Additional changes included reductions to Municipal Court, Police/Fire Pension, General Facilities, and Water-Wastewater-Stormwater Utilities. Presideni McConneil opened the Public Hearing for comments... President McConnell stated that with no further comments, the Public Hearing was now closed fo the public and opened to the Counci! for discussion... 07:12:45 Motion was made and discussion by Council continued... 07:13:20 Amending Motion was made and discussion by Council continued... Mr. Brockus asked which employees the COLA decrease would affect. Mr. Wofford asked what savings the COLA decrease provides. Mr. Parks answered that 47 of 350 employees would be affected and he estimated savings through a COLA reduction at about $50,000. Mr. Gehrinq believed that staff has already sacrificed quite a bit in overall compensation. Mr. Maupin agreed and believed that further concessions are being taken in the coming year. Mr. Shepherd stated that the new budget already assumes furlough and an approximate loss in 5 to 8% of salary per employee. Ms. Robinson looked at what other cities are doing to bring costs down and considered a reduction in COLA as an option to consider. Mr. Runvon asked for clarification on personnel costs. Mr. Parks responded that personnel costs are approximately 28% of budget, and that other savings have been found through voluntary reduced work hours and voluntary retirement or separation which has brought total employee numbers from 370 to 351.5 FTE's. Mr. Runvon asked for clarification on benefits costs. Mr. Parks answered that the City can expect a 12% increase in insurance premiums. Mr. Runvon added that other areas use 90% of Seattle Tacoma CPI while we use 100% of CPI which may be bringing costs up. Mr. Maupin recommended not singling out a small group of employees. Mr. Gehrinq believed in applying changes equally and by not doing so would create disparity among employees; and that we should look at how COLA is provided should be looked at since it does increase the cost of government. Mrs. Arends emphasized that is in unfair to single out a dedicated group for a relatively small savings which does not seem right. 07:32:30 Amendment/S/F (Runyon/Robinson) Move to amend Ordinance No. 5099 to reduce the Cost of Living Allowance (COLA) for, non-represented, management and professional employees from two percent to one percent. Voted in favor of Motion: Robinson Voted opposed to Motion: Shepherd, Arends, Maupin, Wofford, Gehring, Brockus, Runyon, McConnell Motion failed: 1-Yes; 8-No City Council Reg. Mtg. Minutes Wednesday, December 2, 2009 Page 6 of 6 07:33:20 M/S/C (Arends/Wofford) Move to approve Ordinance No. 5099 adopting the City of Bremerton 2010 Annual Budget as amended. Voted in favor of Motion: Arends, Maupin, Wofford, Gehring, Runyon, Shepherd, McConnell Voted opposed to Motion: Robinson, Brockus Motion carried: 7-Yes; 2-No COUNCIL MEMBER REPORTS Brad Gehrinq offered his condolences to the City of Lakewood for their four fallen police officers; and weicomed new Mayor Patty Lent. Adam Brockus invited the pubiic to Winter Fest on Friday, December 4 beginning at 6:00 PM at Domstad Vista on the east end of the Manette Bridge. Festivities wili include an appearance by Santa, hot cocoa, tree lighting to be set off by Police Chief Craig Rogers, and a performance by Bremerton High School choir. Rov Runvon announced First Friday Artwalk and tree lighting events to be held downtown. Dianne Robinson thanked citizens of Anderson Cove for the work being done to start up a Child Care facility; congratulated owners of Hi-Lo's Cafe and 15'" Street Bakery for creating neighborhood businesses; and announced that she will be attending the Grand Opening of West Side Treatment Center to be held on Friday from 11:00 AM to 4:00 PM at 1956 Taft Street. Carol Arends encouraged people to support businesses and thanked people who are keeping those businesses going even during a down economy; and invited the public to come downtown for First Friday Artwalk. Nick Wofford also thanked Hi-Lo's Cafe for improving Bremerton; and encouraged people to participate in the sub-area planning process. President McConnell presented a plaque to Mike Shepherd for his 12-years of service to the City of Bremerton. Mike Shepherd then invited the public, staff, and Council Members to attend his last District 5 Community Meeting to be held on Thursday, December 10 beginning at 6:00 PM at Our Saviour's Lutheran Church located at 10'" Street & Veneta Avenue; and added this will also be an opportunity to meet newly-elected Council Member Greg Wheeler. With no further business, President McConnell adjourned the Council Meeting at 7:42 PM. Prepared and Submitted by: CHRISTINE GRENIER Council Assistant Attest: CAROL ETGEN, City Clerk CECIL McCONNELL, City Council President CM:CE:Is:cg I) \ I I �( I��111 11�.1): �� .�c.H:`n.� t3��.�. ( Of� f3R�ti1f�:RTOti CI�fY ( Ol_�tiCIL .......................................................................................� tiUBJECT: City Cuuncil �l�c:tin� tilinutcs Cummitt�c Mcrtiii3 Dat�: tiiA liir mcctii�� uF ('�)(;N('ll. ��11:1:1�1ti(� I)at�: �C �6 �oop D�parhiici�t: City Cuw�cil �� 9 � a�v � P�•cscntcr: C ccil McConnell . Council President Phuile: ( 360) �173-5280 SUMiViARY: Attached is a swnmary of the City Council Nier:tin� hel�i �.�2Gg,,.,b�. e)� a 0�9 ATTACHNIENTS: Meeting Minutes for �� y „b�, q� a o0 � FISCAL IIVIPACTS (Include Budgeted Amount): N/A APPROVALS: DEPARTMENT DIRECTOR: Council President CITY ATTORNEY: N/A FINANCE DIRECTOR: N/A MAYOR: N/A COMMITTEE CHAIR N/A , h C'OUNCIL PRESIDENT: '"�� , � / ,� ` � , // CONSENT AGENDA �'( � I i�,'L - L LC 1 GENERAL BUSINESS ❑ PUBL.fC HEARING ❑ RECO:�1bIF;NDED vIOTION: Viovc tc� approvc thc C'unscnt /��ciul�i �is pr�s�ntc�1. ('Oli�i('IL AC'TtON: ❑ ,�pprove ❑ I)eny ❑ "[�ahle ❑ ('unt�nu� ❑ N�� ctiun DIGITAL RECORDING CITY COUNCIL STUDY SESSION MINUTES December 9, 2009 A Study Session of the City Council of the City of Bremerton was called to order in the City Council Conference Room 603, of the NORM DICKS GOVERNMENT CENTER 345 6�' Street, Bremerton, Washington, Wednesday, December 9, 2009, at 5:00 PM, with Council Vice President Nick Wofford presiding. Council Members present were Will Maupin, Carol Arends, Dianne Robinson, Mike Shepherd, Roy Runyon, and Brad Gehring. Council Members Cecil McConnell and Adam Brockus were absent. Legislative Assistant Lori Smith was present to provide staff support. Vice President Wofford emphasized that the Study Session was open to the public, however there would be no opportunities for input or participation; that no action will be taken, and the content of these items is subject to change. A. NO DISCUSSION PLANNED - The following items are budgeted items or have been reviewed by the appropriate Council Committee; and will be placed on the next Council Meeting Agenda for action: 1. Agreement with K�TSAP HunnANE Soc�Enr for Animal Control Services — Carol Etgen, City Clerk; and Nick Wofford, Finance Committee Chair Consent Agenda 2. Second Amendment to Professional Services Agreement with DIAMOND PARKING SERVICES LLC for Parking Enforcement Services — Carol Etgen, City Clerk; and Nick Wofford, Finance Committee Chair Consent Agenda 3. Proposed ordinance to establish a Cable Television Franchise Agreement with WAVE DivisioN IV, LLC — Carol Etgen, City Clerk; and Nick Wofford, Finance Committee Chair Consent Agenda 4. Intergovernmental Cooperative Purchasing Agreement with Washington State Office of Procurement — Carol Etgen, City Clerk; and Nick Wofford, Finance Committee Chair Consent Agenda 5. Award Contract to MICHELS CORPORATION for Construction of "Cambrian Avenue Sewer Repair" Project — Michael Mecham, City Engineer; and Brad Gehring, Public Works Committee Chair Consent Agenda 6. Amendment to Professional Services Agreement with PA�METRix, INC. for Construction Support of the "Gorst Sewerage" Project — Michael Mecham, City Engineer; and Brad Gehring, Public Works Committee Chair Consent Agenda 7. Amendment to State Revolving Fund Loan Agreements for the "Gorst Sewerage and Septic System Abandonment" Project — Michael Mecham, City Engineer; and Brad Gehring, Public Works Committee Chair Consent Agenda 8. Amendment to extend the Gold Mountain Golf Club "Greens Superintendent Professional Services AgreemenY' Wlth ED FAULK OPERATIONS LLC to December 31, 2010 — Wyn Birkenthal, Parks 8� Recreation Director; and Will Maupin, Public Safety, Parks, 8 Planning Committee Chair Consent Agenda 9. Amendment to extend the term of the Gold Mountain Golf Club "Golf Management AgreemenY' Wlth SCOTT ALEXANDER'S GO�F SHOP INC. by one-year to December 31, 2010 — Wyn Birkenthal, Parks 8 Recreation Director; and Will Maupin, Public Safety, Parks, 8 Planning Committee Chair Consent Agenda 10. Amendment to extend the Gold Mountain Golf Club "Pro Shop, Driving Range, and Cart Pad Lease AgreemenY' Wlth SCOTT ALEXANDER'S GOLF SHOP INC. by one-year to City Council Study Session Minutes Wednesday, December 9, 2009 Page 2 of 2 December 31, 2010 — Wyn Birkenthal, Parks & Recreation Director; and Will Maupin, Public Safety, Parks, & Planning Committee Chair Consent Agenda B. FULL DISCUSSION PLANNED 11. Amendment to extend the Gold Mountain Golf Club "Food and Beverage Agreement" with � SCOTT ALEXANDER'S GOLF SHOP Itvc. for one additional year to December 31, 2010 — Wyn Birkenthal, Parks & Recreation Director; and Will Maupin, Public Safety, Parks, 8� Planning Committee Chair Consent Agenda 12. Professional Services Agreement with LOwvc PART►vERS, IrvC. for Design, Management, and Marketing of "Park Avenue Plaza Garage" Project — Gary Sexton, Redevelopment Projects Administrator General Business 13. Design/Build Agreement with Di��otv WoRKS! Irvc. for custom sculptures at 4�' Street & Pacific Avenue — Gary Sexton, Redevelopment Projects Administrator; and Nick Wofford, Finance Committee Chair General Business 14. Proposed ordinance to amend Ordinance No. 5071 which adopted the Fiscal Year 2009 Budget, and Ordinance No. 5079 which amended the Fiscal Year 2009 Budget — Andy Parks, Financial Services Director; and Nick Wofford, Finance Committee Chair General Business C. GENERAL COUNCIL BUSINESS A brief discussion of General Council Business was held. Vice President Wofford adjourned the Study Session at 7:15 PM. Prepared and Submitted by: . � L I SMITH Legislative Assistant Attest: CAROL ETGEN, City Clerk CECIL McCONNELL, City Council President DATE SUBMITTED: December 1, 2009 AGENDA B[LL CITY OF BREMERTON CITY COUNCIL, ........................................................................................ SUBJECT: Contract with Humane Society Committee Meeting Date: December 9, 1009 COUNC[L MEETING Date: December 16, 2009 Department: Financial Services Presenter: Carol Etgen, City Clerk Phone: 360-473-5323 SUMMARY: The current animal control contract with the Kitsap Humane Society provides for annual review of scope of services and compensation. The 2010 proposal is for the same budgeted amount as the 2009 contract. The Scope of Services has been re-worked to reflect actual services provided by the Humane Society. ATTACHMENTS: Contract FISCAL IMPACTS (Include Budgeted Amount): $204,000 (fully budgeted) APPROVALS: � � DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR COUNCIL PRESIDENT: '' CONSENT AGENDA GENERAL BUSINESS ❑ PUBLIC HEARING RECOMMENDED MOTION: Move to approve the agreement with the Kitsap Humane Society and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTIOH: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action PROFESSIONAL SERVICES AGREEMENT Kitsap Humane Society The City of Bremerton ("City") and Kitsap Humane Society ("Contractor"), referred to collectively as the "Parties," enter into the following Agreement for professional services: I. Scope: The Contractor agrees to perform the services more specifically described in the Scope of Work, dated , 20_, including any attachments thereto , attached hereto as Exhibit A, which is incorporated by reference herein. The Scope of Work may be modified only pursuant to Section VII.G. of this Agreement. If the Scope of Work provides for unspecified additional services such services shall only be perFormed upon the express written request of the City. Contractor further represents that the services furnished under this Agreement will be perFormed in accordance with generally accepted professional practices in effect at the time such services are performed. II. Term: This Agreement shall be effective as of January 1, 2010 and continue until terminated pursuant to Section IX of this agreement. III. Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Contractor in an amount not to exceed two hundred and four thousand dollars ($204,000) or seventeen thousand dollars ($17,000) per month. Consultant's charges and bills shall conform to the fee schedule attached hereto as Exhibit B and incorporated herein by this reference. The Contractor shall submit regular billing statements detailing work performed and amount charged on each task or portion thereof. The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a conforming billing statement, the City shall promptly process payment. PROVIDED, HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks under the time frame set forth in Section II herein. Contractor shall not perForm work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement. Contractor shall only be compensated for additional services if requested pursuant to Section I and, if not otherwise provided, such compensation shall be in accordance with Exhibit B. If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance. Such withholding does not relieve Contractor of its obligations under this Agreement. IV. Relationship of Parties: Contractor represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. Contractor and its personnel are Bremerton/Kitsap Humane Society Page 1 of 6 independent Contractors and not employees of the City. Contractor and its personnel have no authority to bind the City or to control the City's employees and other Contractors. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-Contractors of the Contractor. Contractor will be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, representatives and sub-Contractors during �the performance of this Agreement. The City may, during the term of this Agreement, engage other independent Contractors to perform the same or similar work. As an independent Contractor, Contractor is responsible for its own management. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Contractor or its personnel. As an independent Contractor, Contractor is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Contractor. V. Indemnification: Contractor shall defend, indemnify and hold the City, its o�cers, 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 caused by the City's sole negligence. �The City's review or acceptance of any of the work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its o�cers, officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. _ IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. Bremerton/Kitsap Humane Society Page 2 of 6 VI. Insurance: The Contractor shali procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees, sub-Contractors or sub- Contractors. Before beginning work on the project described in this Agreement, the Contractor shall provide a Certi�cate of Insurance evidencing: 1. Automobile Liabilit�r insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liabilitv insurance written on an occurrence basis with ._. .._. limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor. All required policies shall be provided on �an "occurrence" basis except professional liability insurance (if required), which may be provided on a"claims-made" basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Contractor and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements. The Contractor's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Contractor's insurance shall be primary insurance as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. The Ciry also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. Bremerton/Kitsap Humane Society Page 3 of 6 VII. General Conditions: A. Reqorts and Information: When requested by the City, Contractor shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form requested. Contractor shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts. B Ownership and Use of Records and Documents: Original documents, drawings, designs and reports, including those in electronic format, developed under this Agreement are the property of the City. All written information submitted by the City to the Contractor in connection with the services perFormed by the Contractor under this Agreement will be safeguarded by the Contractor to at least the same extent as the Contractor safeguards like information relating to its own business. If such information is publicly available or is already in Contractor's possession or known to it, or is rightfully obtained by the Contractor from third parties, Contractor shall bear no responsibility for its disclosure, inadvertent or otherwise. All data, documents and files created by Contractor under this Agreement may be stored at Contractor's office in Silverdale, Washington. Contractor shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City's offices. Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost. All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Contractor pursuant to this Agreement, are instruments of service with respect to the project and are the property of the City. Any � reuse by the City for other than the specific purpose intended will be at City's sole risk. C. Work Performed at Contractor's Risk: Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub- Contractors in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. D. Place of Work: The Contractor shall perform the work authorized under this Agreement at its offices in Silverdale, Washington, and within the Bremerton City limits. Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties. E. Entire Apreement: This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. F. Severabilitv: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. � Bremerton/Kitsap Humane Society Page 4 of 6 G. Modification: This Agreement may only be modified by written instrument signed by both Parties. H. Written Notices: All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1st class mail, or by personal service, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. City Address Contractor Address City Clerk Kitsap Humane Society City of Bremerton 9167 Dickey Rd NW 345 6� Street, Suite 600 Silverdale, WA 98383-8860 Bremerton, WA 98337-1873 I. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. J. Non-Waiver of Breach; The failure of the City to insist upon strict perFormance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. K. Comaliance with Laws: Contractor shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. L. Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. M. Attornevs' Fees: In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney's fees. N. Assianment: Any assignment of this agreement by the Contractor without the written consent of the City shall be void. VIII. Nondiscrimination: Contractor shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or sexual orientation except for employment actions based on bona fide occupational qualification. IX. Termination: This Agreement shall remain in force until terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non- Bremerton/Kitsap Humane Society Page 5 of 6 performing Party does not commence correction of the failure of performance within thirty (30) days of the terminating Party's sending notice to the non-performing Party. Any Notice by Contractor shall include a report showing the status of all items listed in the Scope of Work current through the termination date. A. Excusable Delavs: The right of Contractor to proceed shall not be terminated nor shall Contractor be charged with liquidated damages for any delays in th� completion of the work due to: 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency; 2) any acts of the City, its Contractors, or other public agencies causing such delay; and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity. PROVIDED, HOWEVER, that the Contractor must promptly notify the City within ten (10) calendar days in writing of the cause of the delay. If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay. B. Riqhts Upon Termination: In the event of termination, the City shall pay for all services performed by the Contractor to the effective date of termination, as described on a final invoice submitted to the City. After termination, the City may take possession of all records and data within the Contractor's possession pertaining to this project which may be used by the City without restriction. Any such use not related to the project which Contractor was contracted to perform shall be without liability or legal exposure to the Contractor. CITY OF BREMERTON CONTRACTOR By: By: its: its: Date: Date: Approved as to form: Attest: Bremerton City Attorney City Clerk H:Wnimal Control\Contract DocumentsVlnimal Control Contrad 2010.doc Bremerton/Kitsap Humane Society Page 6 of 6 EXHIBIT A SCOPE OF SERVICES The following is a list of services that will be provided by Kitsap Humane Society with the approval of the 2010 service agreement. With the dual function of being a Humane Society as well as Animal Control, the society will provide an all encompassing animal welfare and control program to the City. 1. Investigate complaints of animal cruelty and violations. 2. Remove and dispose of dead dogs and cats from streets and alleys. 3. Provide 24-hour 7-days a week emergency services, to include the following: a. Injured stray animals. b. Livestock on City-maintained roadways. c. Dogs declared potentially dangerous or dangerous at large. d. Same day dog bites. (unprovoked) e. Animals injured in accidents, owned or otherwise. f. Assistance to City law enforcement officers for DUI, DWI stops and/or traffic accidents involving dogs or cats. (After hours we are contacted through answering service or Cen-Com.) 4. Provide veterinary care for injured stray animals. 5. Provide kenneling and care facilities for all City strays, including inoculations and flea treatment for those animals. 6. Provide a redemption system for impounded animals. 7. Provide an adoption program that promotes responsible pet ownership as well as securing the spaying or neutering of animals in order to reduce population. 8. Provide euthanasia and disposal of unclaimed animals. 9. Provide a 24-hour lost and found pet information phone line and develop, if possible, a web site with appropriate safeguards to view animals that have been picked up as stray. (360-692-6977 x 1) 10. Develop an education program that reaches children and adult groups, promoting responsible pet ownership. 11. Provide administrative staff to oversee the programs as well as support staff to handle phones, dispatching, accounting and all general office functions. 12. Work with the City to develop a comprehensive licensing program. 13. Provide subsidized surgery program for low-income residents of the City. Bremerton/Kitsap Humane Sociery Contract — 2010 EXHIBIT A 14. Act as a resource facility for court-ordered community service. � 15. Work with the City to develop mutually agreeable performance measures and reporting methodology. 16. Submit a monthly report to the City which reflects animal control activities, with annual comparisons where reliable data exists. 17. With the permission of the property owner and at the request of an elderly or disabled or infirm City resident, Kitsap Animal Control will set and retrieve trap(s) necessary to impound stray or injured domestic dogs and/or cats. Bremerton/Kitsap Humane Society Contract — 2010 EXHIBIT B FEE SCHEDULE All services detailed within the Scope of Services (Exhibit A) shall be included in the monthly compensation rate of $17,000. The City shall pay the Society for costs of impoundment of animals exceeding 30 days due to the Bremerton Municipal Court requiring the retention of evidence (animals). Such Boarding costs for impoundment beyond 30 days shall be limited to: • Small Animals -$16.29 per day, or $114 per week • Larger Animals (Livestock) -$21.72 per day, or $152.04 per week In the event the Society finds it necessary to board the animals at other shelters for Court ordered impoundment beyond 30 days the City shall pay the Society for additional expenditures for veterinarian costs including medicine and lab work which will be billed separately at the Society's costs. The Society shall notify the City on the 25 day if it appears Court ordered impounded animals will be sheltered for over 30 days. Bremerton/Kitsap Humane Society Contract — 2010 DATE SUBMITTED� Dcccmbcr I, 200y � AGENDA BILL CITY OE BREMERTON CITY COUNCIL ..........................................................................................., SUBJECT: Ordinance No. ' � 00 Committee Meeting Date: December 9, 2009 establishing a Cable Television Franchise COUNCIL MEETING Date: December 16, 2009 Agreement with WaveDivision IV, LLC Department: Financiai Services Presenter: Carol Etgen, City Clerk Phone: 473-5323 SUMMARY: Culminating over a year of negotiations, the City and WaveDivision IV, LLC have finalized a franchise agreement that grants WaveDivision IV, LLC a non-exclusive franchise to operate a cable television system within the City for the next ten 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: Ordinance No. S I 0 � - Franchise Agreement with WaveDivision IV, LLC FISCAL IMPACTS (Include Budgeted Amount): 3. S% of Grantee's Gross Revenues. � Capital Support to BKAT in the amount of $.25 per subscriber; approx $300.00 per year. APPROVALS: � DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR COUNCIL PRESIDENT: • � CONSENT AGENDA GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: Move to pass Ordinance No. J � 0 establishing a Cable Television Franchise Agreement with WaveDivision IV, LLC. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ T�ble ❑ Continuc ❑ No Action ORDINANCE NO. 5� � AN ORDINANCE granting WaveDivision IV, LLC 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 to provide Cable Services to the Franchise Area 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 will 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: 1 Cab/e Television Frnne%ise Table of Contents INTRODUCTORY STATEMENT .....................................................................................7 SECT/ON 1. DEFINITIONS ............................................................................................8 ��Access" or "Access Programming'► ...........................................................................8 . �Access Channel" ..........................................................................................................8 ��Access Fees" ...............................................................................................................8 .. Activation" or "Activated" ...........................................................................................8 ,. Affiliated Entity or "A�liate" .....................................................................................8 ��Bad Debt" .....................................................................................................................9 ��Basic Service" ..............................................................................................................9 "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 . .............................9 .. Cable Act" .....................................................................................................................9 ��Cable Operator" ...........................................................................................................9 � Service" ..............................................................................................................9 ��Cable System" ..............................................................................................................9 . �Channel" .....................................................................................................................10 ��Ci�� ............................................................................................................................10 "Customer Service Representative" ..........................................................................10 ��Designated Access Provider" ...................................................................................10 ,. Downstream Channel" ..............................................................................................10 ��Dwelling Unit" ............................................................................................................10 � Basic Service" ..........................................................................................10 ,� FCC" ............................................................................................................................10 ��Fiber Optic" ................................................................................................................10 ��Franchise" ..................................................................................................................10 .. Franchise Area" .........................................................................................................10 .. Franchise Fee" ...........................................................................................................11 «Grantee" .....................................................................................................................11 ��Gross Revenues" .......................................................................................................11 ,. Headend" or "Hub" ....................................................................................................12 ��Incremental Costs" ....................................................................................................12 "Interconnect" or "Interconnection" ..........................................................................12 . �Leased Access Channel" ..........................................................................................12 "Locally Scheduled Original Programming" .............................................................12 ��Noncommercial" ........................................................................................................13 ��Normal Business Hours" ...........................................................................................13 .. Normal Operating Conditions" .................................................................................13 ��Pay Service" or "Premium Service" .........................................................................13 ., Person" .......................................................................................................................13 ��Rights-of-Way�� ...........................................................................................................13 .. Service Interruption" .................................................................................................13 .. State" ..........................................................................................................................13 . �Subscriber" or "Customer" .......................................................................................14 2 . Cable Television Franckise ��Tier" .............................................................................................................................14 ��Video Programming�� .................................................................................................14 SECTION 2. GRANT OF FRANCHISE ........................................................................14 2.1 Grant ..................................................................................................................14 2.2 Use of Rights-of-Way ........................................................................................15 2 .3 Term ...................................................................................................................16 2.4 Effective Date ....................................................................................................16 2.5 Franchise Nonexclusive ...................................................................................16 2.6 Grant of Other Franchises ...............................................................................17 2.7 Familiarity with Franchise ................................................................................17 2.8 Effect of Acceptance ........................................................................................18 2.9 Police Powers ...................................................................................................18 2.10 Franchise Area ..................................................................................................18 SECT/ON 3. FRANCHISE FEE AND FINANCIAL CONTROLS ..................................18 3.1 Franchise Fee ....................................................................................................18 3.2 Payments ...........................................................................................................18 3.3 Acceptance of Payment ....................................................................................18 3.4 4uarterly Franchise Fee Reports ....................................................................19 3.5 Audits .................................................................................................................19 3 .6 Financial Records .............................................................................................19 3.7 Interest on Late Payments ...............................................................................19 3.8 Maximum Franchise Fee ..................................................................................20 3.9 Additional Commitments Not Franchise Fees ................................................20 3.10 Payment on Termination ..................................................................................20 3 .11 Service Packages .............................................................................................20 3.12 Additional Compensation ............................................:....................................21 3.13 Tax Liability ....................................................................................................... 21 SECT/ON 4. ADMINISTRATION AND REGULATION .................................................21 4.1 Rates and Charges ...........................................................................................21 4.2 No Rate Discrimination ....................................................................................21 4.3 Filing of Rates and Charges ............................................................................22 4.4 Time Limits Strictly Construed ........................................................................22 4.5 Performance Evaluation ...................................................................................22 4.6 Leased Access Channel Rates ........................................................................ 22 4.7 Late Fees ........................................................................................................... 22 SECT/ON 5. FINANCIAL AND INSURANCE REQUIREMENTS .................................23 5.1 Indemnification .................................................................................................23 5.2 Insurance Requirements ..................................................................................24 5 .3 Security ..............................................................................................................26 SECTION 6. CUSTOMER SERVICE ...........................................................................27 6.1 Customer Service Standards ...........................................................................27 6.2 Subscriber Privacy ...........................................................................................27 3 Cable Television Franclrise 6.4 Customer Service Agreement and Manual .....................................................28 SECT/ON 7. REPORTS AND RECORDS ....................................................................28 7.1 Open Records ................................................................................................... 28 7.2 Confidential / Proprietary Information . ...........................................................29 7.3 Records Required .............................................................................................29 7.4 Complaint File and Reports .............................................................................29 7.5 inspection of Facilities and Annual Meeting ..................................................30 7.6 False Statements ..............................................................................................30 SECT/ON 8. PROGRAMMING .....................................................................................30 8.1 Broad Programming Categories ......................................................................30 8.2 Deletion of Broad Programming Categories ..................................................30 8.3 Obscenity ...........................................................................................................30 8.4 Services for the Disabled ................:................................................................ 30 8.5 Parental Control Device ...................................................................................30 SECT/0N 9. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS ................31 9.1 Access Channels ..............................................................................................31 9.2 Triggers for Additional Access Channel .........................................................31 9.3 Management and Control of Access Channels ..............................................32 9.4 Underutilized Access Channels .......................................................................32 9.5 Access Channel Identification/Location/Relocation/Bill Insertions .............32 9.6 Access Interconnections .................................................................................32 9.8 Access Channels On Lowest Tier ................................................................... 34 9.9 Access Channels On Lowest Tier ................................................................... 34 SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ...................34 10.1 Construction ......................................................................................................34 10.2 Location of Facilities ........................................................................................35 10.3 Restoration of Rights-of-Way ..........................................................................35 10.4 Maintenance and Workmanship ......................................................................35 10.5 Acquisition of Facilities ....................................................................................36 10.6 Reservation of Rights-of-Way ..........................................................................36 10.7 Rights-of-Way Vacation by City .......................................................................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 ......................................................................40 10.13 Tree Trimming .................................................................................................40 10.14 Standards ........................................................................................................40 10.15 Stop Work ........................................................................................................40 10.16 Work of Contractors and Subcontractors .....................................................41 10.17 GIS Mapping ....................................................................................................41 SECTlON 11. CABLE SYSTEM DESIGN ....................................................................41 4 Cable Television Franchise SECTION 12. TECHNICAL STANDARDS ...................................................................42 12.1 Technical Performance ....................................................................................42 12.2 Cable System Performance Testing ................................................................42 SECTION 13. STANDBY POWER AND EAS ..............................................................42 13.1 Standby Power ..................................................................................................42 13.2 Emergency Alert Capability ..............................................................................43 SECTION 14. FRANCHISE BREACHES; TERMINATION OF FRANCHISE ..............43 14.1 Procedure for Remedying Franchise Violations ............................................43 14.2 Alternative Remedies ........................................................................................44 14.3 Revocation .........................................................................................................45 SECT/ON 15. FRANCHISE TRANSFER ......................................................................46 15.1 Transfer of Ownership or Control ...................................................................46 SECT/ON 16. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND NOTICES.......................................................................................................................47 16.1 Preferential or Discriminatory Practices Prohibited ......................................47 16.2 Notices ..................................................................................................................47 SECT/ON 17. MISCELLANEOUS PROVISIONS ........................................................48 17.1 Cumulative Rights ............................................................................................48 17.2 Costs to be Borne by Grantee .........................................................................48 17.3 Binding Effect ....................................................................................................48 17.4 Authority to Amend ...........................................................................................48 17.5 Venue .................................................................................................................48 17.6 Governing Laws ................................................................................................48 17.7 Captions ............................................................................................................49 1T.8 No Joint Venture ...............................................................................................49 17.9 Waiver ................................................................................................................49 17.10 Severability ......................................................................................................49 17.11 Compliance with Federal, State and Local Laws .........................................49 17.12 Force Majeure ..................................................................................................49 17.13 Entire Agreement ...........................................................................................50 17.14 Attorneys' Fees ...............................................................................................50 17.15 Action of the City or Grantee .........................................................................50 17.16 Acceptance ......................................................................................................50 i SECT/ON 18. SEVERABILITY .....................................................................................50 SECT/ON 19. EFFECTIVE DATE . ...............................................................................50 EXHIBIT1 ....................................................................:..................................................53 CUSTOMER SERVICE STANDARDS ...........................................................................53 SECTION1. POLICY ...................................................................................................53 5 Cable Television Franc%ise SECTION 2. CUSTOMER SERVICE . ...........................................................................53 2.1. Courtesy .............................................................................................................53 2.2. Accessibility; Cable System office hours and telephone availability .............53 2.3. Responsiveness; installations, outages and service calls ............................. 54 2.4 Services for Customers with Disabilities .........................................................56 2.5 Notification to Customers ................................................................................. 56 2.6 Customer Privacy .............................................................................................. 57 2.7 Safety ................................................................................................................. 57 SECTION 3. COMPLAINT PROCEDURE ....................................................................57 3.1 Complaints to Grantee ......................................................................................57 3.2 Complaints to the City ..........................................................................................58 3.3 Overall Quality of Service ...................................................................................58 3.4 Non-Compliance with Customer Service Standards .......................................58 SECTION 4. MISCELLANEOUS ...................................................................................58 4.1 Severability ........................................................................................................ 58 4.2 Non-Waiver ........................................................................................................ 59 6 Cable Television Franc/rise INTRODUCTORY STATEMENT CABLE TELEVISION FRANCHISE. This Cable Television Franchise is entered into in Bremerton, Washington, this day of , 2009, by and between the City of Bremerton, Washington a municipal corporation, ("City") and WaveDivision IV, LLC d/b/a Wave Broadband ("Grantee"). City and Grantee are sometimes referred to hereinafter collectively as the "parties." 7 Cable Television Francl�ise 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 defined, 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. "Affiliated Entity" or "Affiliate" when used in connection with Grantee means any Person who owns or controls, is owned or controlled by, or is under commo.n ownership or control of Grantee. 8 Cable Te%vision Francl:ise "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. "Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of local television Broadcast Signals. "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 Guide" means any guide operated and maintained by N Guide, Grantee or contractor to maintain the day and time of programs on channels carried by Grantee. "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 significant 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 U.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 U.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 9 Cable Te%vision Francliise "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 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 in the Franchise Area. "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 all associated electronics and equipment capable of carrying electric lighfinrave 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. 10 Cable Te[evision Francl:ise "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 Contributions as required by Section 9.7 of this Franchise. (C) Requirements or charges incidental to the awarding or enforcing of the Franchise, including but not limited to, payments for bonds, insurance, indemnification or penalties; or (C) Any fee imposed under Title 17, United States Code. "Grantee" means WaveDivision IV, LLC d/b/a Wave Broadband or its lawful successor, transferee or assignee. "Gross Revenues" means any and all revenue derived directly or indirectly by Grantee, or by Grantee's A�liates from the operation of the Grantee's Cable System to provide Cable Services in the Franchise Area. Gross Revenues include, by way of illustration 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 installation, 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 generally accepted accounting principles (GAAP), revenues from rentals of converters or other Cable System equipment, net 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 ii) Bad Debt, provided, however, that all or part of any such Bad Debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected; (iii) refunds, rebates or discounts made to Subscribers or other third parties; (iv) any revenues classified, in whole or in part, as Non-Cable Services revenue under federal or state law including, without limitation, revenue received from Telecommunications Services; revenue received from Information Services; charges made to the public for commercial or cable television that is used for two-way communication; and any other revenues attributed by Grantee to non-Cable Services in accordance with FCC or state public utility regulatory commission rules, regulations, standards or orders; (v) any revenue of Grantee or any other Person which is received directly from the sale of inerchandise through any Cable Service distributed over the Cable System, notwithstanding that portion of such revenue that represents or can be attributed to a Subscriber fee or a payment for the use of the Cable 11 Cable Television Francleise System for the sale of such merchandise, which portion shall be included in Gross Revenue; (vi) any taxes on services furnished by the Grantee that are imposed directly on any Subscriber or user by the State, City, federal or other governmental unit and that are collected by the Grantee on behalf of said governmental unit; (vii) any foregone revenue which Grantee chooses not to receive in exchange for its provision of free or reduced cost cable or other communications services to any Person, including without limitation, employees of Grantee and public institutions or other institutions designated in the Franchise; provided, however, that such foregone revenue which Grantee chooses not to receive in exchange for trades, barters, services or other items of value shall be included in Gross Revenues; (viii) sales of capital assets or sales of surplus equipment; or (ix) directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement and electronic publishing; or (x) 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. "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 provisioning. "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) including 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 filler, such as cablecasts of highways and roads, or video bulletin boards does not constitute Locally Scheduled Original Programming that quatifies herein. l2 Cable Television Francliise "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. "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. "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. l3 Cable Televisiun Frnnc%ise "Subscriber" or "Customer" means any Person who lawfuliy receives Cable Services provided by Grantee in the Franchise Area 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. SECT/ON 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 for the Grantee. (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. 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. ` (D) 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 14 Cable Te%vision Francliise management or operation of the Cable System in the Franchise Area, will comply with the terms and conditions of this Franchise. (E) No rights shall pass to Grantee by implication. Without limiting the foregoing, by way of example and not limitation, this Franchise shall 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 specifically granted by this Franchise. (F) This Franchise is intended to convey limited rights and interests only as to those Rights-of-Way 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 conditior�s 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 shall comply with all ` lawfully enacted and applicable construction codes, laws, ordinances, regulations and procedures regarding placement and installation of Cable System facilities in the Rights-of Way. (B) Grantee must follow City-established requirements, including Title 11 of the Bremerton Municipal Code, as may be amended periodically, as well as l� Cable Television Fra�rclrise all other City codes, 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 such that interference with the use of the Rights-of- Way by others is as minimal as reasonably practicable, including interference with 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 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 reasonably reduce 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 term of ten 10 years, effective on January 1, 2010 and terminating on December 31, 2019; then at any time during the three (3) year franchise renewal period, this Franchise may be extended for five (5) additional years to December 31, 2024 unless Grantee is in material breach of the Franchise and has not cured such material breach. 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) The effective date of this Franchise shall be January 1, 2010. (C) The grant of this Franchise shall have no effect on Grantee's duty under 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 or easement, including the right of City to use same for any purpose it lawfully deems fit, including the same or similar l6 Cable Te%vision Francltise purposes aliowed Grantee hereunder. City may at any time grant authorization to use the Rights-of-Way for any purpose not incompatible with Grantee's authority and rights granted under this Franchise and for such additional franchises for Cable Systems, as City deems appropriate. 2.6 Grant of Other Franchises 2.6.1. 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 shall contain terms or conditions substantially more favorable or substantially 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 Grantee, contains more favorable or substantially less burdensome terms or conditions than this Franchise, the City agrees that it shall amend this Franchise to include any more favorable or less burdensome terms or conditions in a manner mutually 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 shall serve or require to be served a copy of such application upon any existing Grantee 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, Grantee shalt have a right to request Franchise amendments that relieve Grantee of regulatory burdens that create a competitive disadvantage to Grantee. In requesting amendments, 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 Grantee's petition. 2.7 Familiarity with Franchise Grantee acknowledges and warrants by acceptance of the rights, privileges and agreements 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. 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 17 Cable Television Frnnc%ise commercially practicable at this time and consistent with all locai, State and federal laws and regulations currently in effect, including the Cable Act. 2.8 Effect of Acceptance By accepting the Franchise, 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 Franchise subject to applicable law; and (4) agrees that the Franchise was granted pursuant to processes and procedures consistent with applicable law. 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 legally 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 18 Cable Television Franc%ise 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 or designee 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. 3.5 Audits Every five years, upon thirty (30) days' prior written notice, City or City's designated representative shall have the right to conduct an independent audit of , Grantee's financial records necessary to enforce compliance with the Franchise Fee payment provisions of 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 two weeks, and the audit period shall not be any greater than the previous 12 months 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 ten percent (10%) or more in a calendar year, Grantee shall pay the cost of the audit. 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 the Franchise Fee Provisions 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 Grantee remits the payment. 19 Cab/e Television Frane/:ise 3.8 Maximum Franchise Fee The parties acknowledge that, at present, applicable federal law limits the City to collection of a Franchise Fee of five percent (5%) of Gross Revenues in any twelve (12) month period. Only 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 (12) month period, the parties hereby agree to amend the Franchase 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. Only 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 (12) 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. 3.9 Additional Commitments Not 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 Capital Contributions are excluded from the definition 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, Grantee shall file with the City within one hundred twenty (120) calendar days of the date of the termination, a �nancial statement, certified by an officer of Grantee, showing the Gross Revenues received by Grantee since the end of the previous fiscal year. Within forty �ve (45) days of the filing of the certified statement with the City, Grantee shall pay any unpaid amounts as indicated. If 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 perFormance bond provided by 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. ?0 Cable Television Franc/rise 3.12 Additionai Compensation In the event that Franchise Fees are prohibited by any law or regulation, Grantee 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. SECT/ON 4. ADMINISTRATION 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 Customer billing shall be itemized by service(s) per FCC Regulation 76.309 (6) (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 made available to the public on Grantee's website at www.wavebroadband.com, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances and conditions, except as allowed under applicable law. 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) Grantee agrees to offer a discount of 30% from its published rate card rate to Subscribers for Limited Cable Services 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. ?t Cab/e Te/evision Franclrise 4.3 Filing of Rates and Charges Throughout the term of this Franchise, Grantee shall maintain on its website 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) Upon 90 days written notice to Grantee, 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. (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 established within this Franchise are followed. 4.6 Leased Access Channel Rates Upon a bona fide request, as defined by the FCC, by a Person pursuing a Leased Access Channel, 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 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) 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. ?2 Cab/e Television Franc/rise SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification (A) Indemnification: Grantee 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 Franchise to the extent of the negligent acts or omissions of Grantee, except for that portion of the injuries and damages caused by the City's negligence. The City's review or acceptance of any of the work when completed shall not be grounds to avoid any of these covenants of indemnification. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Grantee and the City, its officers, officials, employees, agents and volunteers, Grantee's liability hereunder shall be only to the extent of the Grantee's negligence. It is further specifically and expressly understood that, solely to the extent required to enforce the indemnification provided herein, Grantee waives its immunity under RCW Title 51; provided, however, the foregoing waiver shall not in any way preclude Grantee from raising such immunity as a defense against any claim brought against Grantee by any of its employees. This waiver has been mutually negotiated by the parties. (B) Indemnification for Relocation. 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, except for such damages caused by the City's negligence. (C) Additional Circumstances. Grantee shall also indemnify, defend and hold the 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. (D) Procedures and Defense. If a claim or action arises pursuant to sections 5.1(A), 5.1(B) or 5.1(C), the City shall tender the defense of the claim or action to Grantee, which defense shall be at Grantee's expense. The City may participate in the defense of a claim and, in any event, Grantee may not agree to any settlement of claims financiatly affecting the City without the City's written approval. ?3 Cable Te%vision Frane%ise (E) Dutv 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) Dutv to Give Notice. The City shall give 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 Grantee and Grantee shall have the obligation and duty to defend any claims arising thereunder, and the City shall cooperate fully therein. (G) Seaarate 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 and the City shall discuss in good faith a mutually satisfactory resolution. (H) The grant of this Franchise shall have no effect on Grantee's liability to pay all Franchise Fees which were due and owed under prior franchises. 5.2 Insurance Requirements (A) General Reauirement. 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 milli�n 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 and employees as additional insureds. �imits of insurance in no way serve as limitations of liability. (2) Commercial Automobile 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, or any other vehicles assigned to or used in any activities authorized under or used in conjunction with this Franchise. (3) Employer's Liability with limits of at least one million dollars ($1,000,000). (4) Workers' Compensation insurance shall be maintained during the life of this Franchise to comply with State law for all employees. (B) Each policy will provide that, should any of the above described policies be cancelled before the expiration date thereof, the issuing insurer shall endeavor to mail 30 days written notice (10 days if due to non-payment of 24 Cable Television Franc/rise premium) to the certificate holder, but failure to do so will impose no obligation or liability of any kind upon the insurer, its agents or representatives. If the insurance is canceled or terminated 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. 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 defend and 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 o�cers, officials, agents, and employees for any claims arising out of Grantee's work or service. (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 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, volunteers, and employees as it relates to this Franchise. 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. (c) Grantee's insurance shall 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 Coveraae. Grantee shall furnish the City with certificates of insurance and an endorsement reflecting 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. Grantee hereby warrants that its insurance policies satisfy the requirements of this Franchise. 25 Cable Televisio�: Francliise 5.3 Security (A) Grantee shall provide a performance bond in the amount of two thousand dollars ($2,000) 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, pay franchise fees and 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 as approved by the City's Risk Manager. 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. (B) The bond(s) shall provide that the bond(s) shall not be cancelled or materially altered so as to be out of compliance with the requirements of this subsection without thirty (30) days written notice first being given to the City. If the bond(s) is/are cancelled or materially altered so as to be out of compliance with the requirements of this subsection, Grantee shall provide replacement bond(s). Grantee agrees to maintain continuous uninterrupted bonds in the amounts required for the duration of this Franchise or thereafter as specified in this Franchise. (C) The bond(s) referred to in Section 5.3 (A) may be drawn upon by the City for breach of a material provision of this Franchise after 30 days notice and opportunity to cure. If such cure cannot be reasonably accomplished within 30 days of such notice, Grantee shall have a reasonable time to cure, provided that Grantee commences such cure within such 30 days and diligently pursues such cure to completion. If Grantee fails to cure the material breach as specified above, 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) to the amount required under this Franchise. Grantee's maintenance of the bond(s) shall not be construed to excuse unfaithful perFormance by Grantee or to limit the liability of Grantee to the amount of the bond(s) 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 was drawn upon improperly. Grantee shall also have the right of judicial appeal if Grantee � believes a bond has not been properly drawn upon in accordance with this 26 Cable Television Franclrise Franchise. Any funds the City erroneously or wrongfuliy withdraws from the bond(s) shall be returned to Grantee with interest from the date of withdrawal. (D) Grantee agrees to maintain continuous uninterrupted bond(s) in the amounts required for the duration of this Franchise or as otherwise specified in this Franchise. (E) Grantee shall have the right to appeal to the City for reimbursement in the event Grantee believes that the bond was drawn upon improperly. Such appeal shall be made within fifteen (15) business days of the date Grantee has been notified in writing of the withdrawal. Appeal shall be made to the City's designated contact. The appeal shall be accompanied by a written letter outlining the nature and circumstances of the appeal and any applicable franchise provisions. After a determination by the City, Grantee shall also have the right of judicial appeal if Grantee believes the bond has not been properly drawn upon in accordance with this Franchise. Any funds the City erroneously or wrongfully withdraws from the bond 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. (F) Failure to follow any of the procedures outline in section 5.3(F) , shall result in the Grantee's waiver of any claims related to withdrawal of funds from the perFormance bond. SECT/ON 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) � Grantee shall at all times during the term of the Franchise maintain within Kitsap County a Customer support center where Customers may access information related to services and products, make bill payments or "speak" with a Customer Service Representative. Grantee is encouraged to provide a website. ?7 Cuble Television Francltise 6.4 Customer Service Agreement and Manual (A) Grantee shall provide to Subscribers an accurate, comprehensive service agreement (currently called the work order) and Customer installation packet (currently called the Install Package) for use in establishing Subscriber service. This material shall, at a minimum, contain the following: (1) Grantee's procedure for investigation and resolution of Subscriber 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. SECT/ON 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 or designated representative, 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 business hours, and without unreasonably interfering with Grantee's business operations. Such books and records shall include any records required to be kept in a public file by the Grantee pursuant to the rules and regulations of the FCC. All such documents pertaining to financial � . Cuble Television Franclrise matters that may be the subject of an inspection by the City shall be retained by the Grantee for a minimum period of six (6) years. 7.1.2. File for Public Inspection. Throughout the term of this Franchise, the Grantee shall maintain at its business office, in a�le available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations. 7.2 Confidential / Proprietary Information. Grantee agrees to provide all information reasonably required to verify � compliance with the material terms of the Franchise. The 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 that is confidential or proprietary, and shall provide a brief written explanation as to why such information is con�dential and how it may be treated as such under State or federal law. If the City receives a demand from any Person for disclosure of any information designated by Grantee as confidential, the 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 directly impact the operation of the Cable System in the Franchise Area. (C) A list of Grantee's Cable Services, rates and Channel line-ups in the Franchise Area; (D) A compilation of written Subscriber complaints actions taken in the Franchise Area and resolution. (E) Financial records as referred to in Section 3. 7.4 Complaint File and Reports Grantee shall keep an accurate and comprehensive compilation of any and all written Customer complaints received and Grantee's actions in response to ; those complaints, in a manner consistent with the privacy rights of Subscribers. 29 Crrble Te%visivn Franc%ise 7.5 inspection of Facilities and Annual Meeting The City may inspect any of Grantee's facilities and equipment located in the Rights-of-Way in the Franchise Area or on other public property at any reasonable time during Normal Business Hours upon at least seventy-two (72) hours notice to Grantee, or, in case of emergency, upon demand without prior notice. 7.6 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 all remedies, legal or equitable, that are available to City under this Franchise for such material breach. SECT/ON 8. PROGRAMMING 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; (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 applicable State and Local laws 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 � 30 Cable Televisiun Franc%ise shall inform its Subscribers of the availability of the lockout device at the time of their initial subscriptions and periodically thereafter. 8.6 Cable Guide Grantee will assure BKAT (Bremerton Kitsap Access Television) programming is listed on the Cable Guide on WAVE channels and website. The City will provide programming information to designee on a timely basis. 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: Additionally, Grantee shall make available at no charge one (1) additional digital 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 programming. 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 to ensure that delivery of Access Video Programming signals is not diminished or adversely affected. 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. 9.2 Triggers for Additional Access Channel Pursuant to Section 9.1 (Access Channels), the City may require Grantee to make available an additional digital Downstream Channel when the Access Channels required by Section 9.1 are used for Locally Scheduled Original Programming (excluding character generated and filler programming, e.g. video bulletin 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 shall 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 five 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. 3l Cable Television Frrrnclrise 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 e�ciently use the Channel capacity of the Cable System, which may include allowing the Grantee to use underutilized Access Channels. If an Access Channel fails to meet the continuing criteria of programming usage set forth in section 9.2, i.e., Locally Scheduled Original Programming (excluding character generated and filler programming, e.g. video bulletin board, NASA, AM/FM Radio Programming) at least forty eight (48) hours per week eighty percent (80%) of the time befinreen 10:00 A.M. and 10:00 P.M., Monday through Friday during any consecutive ten (10) week period, for one hundred eighty (180) continuous days of operation, such Access Channel will revert to Grantee for whatever use it deems appropriate. 9.5 � Access Channel IdentificationlLocation/Relocation/Bill 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 include notice of such relocation in its marketing materials in the Franchise Area. 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) Nothing in this section alters Grantee's Channel obligations for Access programming delivered to Subscribers within the Franchise Area. 32 Cable Television Franc%ise (C) 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. (D) City agrees that any equipment and construction costs borne by Grantee in connection with the obligation to provide for Access Channel Interconnection shall be considered "external costs" as such term is used in 47 C.F.R. Section 76.922(� on the date of this Franchise, and as such, the costs are 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 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 then remit to the City (the "Capital Contributions"). Grantee's Capital Contribution payments to City shall be remitted 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. The Capital Contributions may only be applied by the City toward capital expenditures consistent with applicable law. . Grantee agrees that at the end of the initial fifteen (15) year term upon delivering written notice to the City sixty (60) days prior to the expiration of the term subject to mutual agreement by the City and Grantee, the Franchise will be extended an � additional five (5) years. Grantee shall not be responsible for paying the Capital Contributions with respect to exclusions to Gross Revenues, as defined in the "Gross Revenues" definition in section 1 of this Franchise. The City can inquire as to the status of any such exclusions, 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. 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. 33 Cable Television Franc/:ise 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 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. SECT/ON 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 reasonably minimal 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 the City with a construction schedule for work in the Rights-of-Ways as required by the 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 � the City, and give appropriate notices to the City, and Grantee shall pay all applicable fees upon issuance of the requisite construction permits by the 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 34 Cable Televisiof� Francliise initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency, and notify the City by calling the Public Works and Utilities Hotline at (360) 473-5920 if digging in the right-of-way or interrupting traffic. 10.2 Location of Facilities Within five (5) business days or such longer period made necessary by the availability of a third party locating company, 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-Way 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. The 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. The 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. 10.4 Maintenance and Workmanship (A) Grantee's Cable System shall be constructed and maintained in such manner as not to interfere unreasonably 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-Way 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 35 Cuble Television Franc%ise 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 cable television 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 to be used in conjunction with the operation of a cable television system, 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, unless the City has removed or relocated facilities of other similarly situated users of the public Rights-of-Way or compensated said users for such removal or relocation. In such situations, Grantee shall be entitled to equivalent removal or relocation treatment as those other similarly situated users. 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. (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, following 30 business days notice by the City or such longer period necessary to obtain required permits or perform major construction, redesign or any other major removal, replacement, relocation or modification, Grantee shall remove, replace, relocate, modify or 36 Cable Television Franckise 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, modi�cation 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 reasonable 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 by City 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 City Rights-of-Way, Grantee shall, without delay or expense to City, remove its facilities from such Rights-of-Way, and reasonably 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 reasonable schedule set by City. Until such time as Grantee removes or modifies the facility as reasonably directed by City, Grantee shall be responsible 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, but not limited to, access channel purposes. 37 Cable Te%vision Franc%ise 10.9 Hazardous Substances (A) Grantee shall comply with all applicable State and federal laws, statutes, regulations and orders concerning hazardous substances within the Rights-of-Way. (B) As used herein, the term "Hazardous Substances" shall mean any substance or material now or hereafter defined or regulated as a hazardous substance, hazardous-waste, toxic substance, pollutant, or contaminant under any federal, state or local law, regulation, or ordinance governing any substance that could cause actual or suspected harm to human health or the environment (Environmental Law). The term "Hazardous Substance" specifically includes but is not limited to, petroleum, petroleum by-products, and asbestos. Grantee agrees to indemnify, defend and hold City harmless from and against any and all claims, liabilities, losses, penalties, remediation costs and expenses (including attorney's and consultant's fees and costs) that City may incur or have assessed against it as a result of any actions of Grantee resulting in the presence of any Hazardous Substance in, on, or under the property which violates any Environmental Law at any time, unless such liabilities are the result of the City's negligence or willful omission. 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 unless the City has provided compensation to similarly situated users of the Rights-of-Way for such underground wiring, in which case Grantee shall be entitled to equivalent compensation. 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 reasonably possible. (3) This Franchise does not grant, give or convey to 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 38 Cable Television Francleise to the City in accordance with the City's permitting process so that cost sharing opportunities may be explored. However, nothing set forth herein shall 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 shall allow the City to lay its cable, conduit and Fiber Optic cable 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 bores. The City shall be responsible for maintaining its respective cable, conduit and Fiber Optic cable buried in the Grantee's trenches and bores under this paragraph. (5) The City shall not be required to obtain easements for Grantee. (6) 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 the provision of Cable Service, Grantee shall reasonably restore the property to its former condition. Rights-of-Way or other City property shall be restored in a manner and within a reasonable 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 written notice to Grantee, or without notice where the disturbance or damage may create a risk to public health, safety or welfare, cause the repairs to be made at Grantee's expense and recover the cost of those repairs from Grantee. Within thirty (30) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, 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 adhere to all building and zoning codes currently in effect and hereinafter amended. 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 39 Cable Television Franclrise removai 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 subject to City approval. 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 as defined by the International Society of Arboriculture in accordance with such permit, any tree in the Rights-of-Way that interFeres with the Cable System. 10.14 Standards (A) Grantee must comply with all applicable 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 unreasonably interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not unreasonably obstruct or impede traffic. 10.15 Stop Work On notice from the City that any work is being conducted contrary to the material provisions of this Franchise, or in substantial 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. =F0 Cable Television Francliise 10.16 Work of Contractors and Subcontractors Grantee's contractors and subcontractors shali 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 auto-cat format. All updates of the records shall be submitted to the City Public Works & Utilities Department within thirty (30) days upon written request, no more than once per year. SECT/ON 11. CABLE SYSTEM DESIGN (A) 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 ineeting those needs and interests. The parties recognize that, as of the 41 Cable Television Franclrise Effective Date, the City is not permitted to require the provision of specific Video Programming pursuant to this subsection. SECT/ON 12. TECHNICAL STANDARDS 12.1 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. 12.2 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 written 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 written 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 reasonably 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 con�rmed and satisfactory results are obtained. SECT/ON 13. STANDBY POWER AND EAS 13.1 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 nefinrorks, 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. �2 Cable Television Franclrise 13.2 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 in accordance with FCC regulations. SECTION 14. FRANCHISE BREACHES; TERMINATION OF FRANCHISE 14.1 Procedure for Remedying Franchise Violations (A) If City reasonably believes that Grantee has repeatedly failed to perForm any material obligation under this Franchise or has repeatedly 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: (1) Respond to City, contesting City'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 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 (B) 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. (B) 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 the 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 43 Cable Te%vision Franc%ise hearing, the City shall not unreasonably limit Grantee's opportunity to make a record that may be reviewed should any final decision of the 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 the 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 the City shall determine. In the event Grantee does not cure within such time to City's reasonable satisfaction, the City may: (1) Terminate this Franchise; and (2) 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 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. 14.2 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 specifically 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. �� Cable Te%vision Francltise 14.3 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) Grantee makes a material misrepresentation of fact in the negotiation of this Franchise; (3) Grantee abandons the Cable System or terminates the Cable System's operations; (4) Grantee fails to restore service to the Cable System after three consecutive days of an outage or interruption in service to all Subscribers; 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 (5) 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 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 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 such 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 bound by all of the terms and provisions of this Franchise. 4� Cable Television Fraiie%ise SECTION 15. FRANCHISE TRANSFER 15.1 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 approvat 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 has the financial, 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) The City's consent to a sale, transfer or change in control shall not be unreasonably withheld. (G) 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 46 Cable Television Franclrise 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. (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 intra-company Affiliate , provided that the proposed assignee or transferee must show financial 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 financing without the consent of the City; provided that such pledge of assets shall not impair or mitigate Grantee's responsibilities and capabilities to meet all of its obligations under the provisions of this Franchise. SECT/ON 16. PROHIBITED PRACTICES, LOCAL EMPLOYMENT EFFORTS AND NOTICES 16.1 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. 16.2 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: Wave Division IV, LLC. 401 Kirkland Park Place, Suite 500 ` Kirkland, WA 98033 Attn. Jim Penney 47 Cable T�levision Francltise With a Copy To: 4519 S.E. Mile Hiil Drive Port Orchard, WA 98366 Attn. Michaei Talpai City's address shall be: City of Bremerton, Washington 345 6 th Street, Suite 600 Bremerton, Washington 98337 Attention: City Clerk SECTION 97. MISCELLANEOUS PROVISIONS 17.1 Cumulative Rights Subject to applicable law, all rights and remedies given to the City by 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 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. 17.2 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. 17.3 Binding Effect This Franchise shall be binding upon the parties hereto, their permitted successors and assigns. 17.4 Authority to Amend This Franchise may be amended at any time by written agreement between the parties. 17.5 Venue The venue for any dispute related to this Franchise shall be in an appropriate court of competent jurisdiction. 17.6 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 48 Cable Television Franc%ise other applicable local, State and federai laws, rules, and regulations, as amended. The Grantee specifically agrees to comply with the provisions of City ordinances. 17.7 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. 17.8 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. 17.9 Waiver The failure of either party at any time to require perFormance by 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 by 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. 17.10 Severability If any Section, subsection, paragraph, term or provision of this Franchise is determined to be illegal, invalid or unconstitutional by 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. 17.11 Compliance with Federal, State and Local Laws Grantee shall comply with applicable federal, state and local laws, now existing or hereafter adopted. 17.12 Force Majeure 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 reasonable 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, delays caused by failure of the City or utilities to provide permits in a timely manner, 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. 49 Crrble Television Frctnckise 17.13 Entire Agreement This Franchise and Exhibit I represent the entire understanding and agreement befinreen the parties hereto with respect to the subject matter hereof and supersede all prior oral and written negotiations between the parties. 17.14 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. 17.15 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. 17.16 Acceptance Within forty-five (45) days of receipt of the Franchise after its execution by the City, this Franchise shall be 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. SECT/ON 18. SEVERABILITY If any one or more sections, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECT/ON 19. 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 , 2009 CECIL MCCONNELL, Council President �0 Cable Te%vision Franclrise Approved this day of , 2009. PATTY LENT, Mayor ATTEST: APPROVED AS TO FORM: CAROL L. ETGEN, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the day of , 2009. EFFECTIVE the day of , 2009. � ORDINANCE NO. ` �t . Cable Television Francltise CITY COUNCIL CITY OF BREMERTON, WASHINGTON In the matter of the application : of Wave Division IV, LLC : Franchise Ordinance No. for a franchise to construct, operate : and maintain facilities in, upon, : over under, along, across and : through the franchise area of the : ACCEPTANCE City of Bremerton, : Washington. : WHEREAS, the City Council of the City of Bremerton, Washington, has granted a franchise to Wave Division IV, LLC its successors and assigns, by enacting Ordinance No. bearing the date of , 2009; and WHEREAS, a copy of said Ordinance granting said franchise was received by the Wave Division IV, LLC on , 2009, from said City of Bremerton, Kitsap County, Washington. NOW, THEREFORE, Wave Division IV, LLC, 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 Wave Division IV, LLC has caused this written Acceptance to be executed in its name by its undersigned thereunto duly authorized on this day of , 2009. ATTEST: WAVE DIVISION IV, LLC By: Its: 52 Cable Television Fra�:clrise EXHIBIT I CUSTOMER SERVICE STANDARDS SECTION 1. POLICY Grantee should be permitted the option and autonomy to first 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 continuous and substantial 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 answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. (B) Under normai operating conditions, telephone answer time shall not exceed thirty (30) seconds, not including hold time, after the Subscriber has selected his or her option when an automated response system is used by Grantee,. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly 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 tess than three (3) percent of the time. (E) A Customer service center 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 noti�cation 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 shall 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 shall have the authority to provide credit for interrupted service, to waive fees, to schedule service appointments and to change billing cycles, where appropriate. (D) Billings, refunds and credits. (1) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills 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 Grantee, 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 shall repair, replace or compensate a property owner for any damage resulting from Grantee's installation, construction, service or repair activities unless such damages were caused by the negligence or willful misconduct of the property owner. (3) Except in the case of an emergency involving public safery 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 shall 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 property, 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 notified 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 wiil 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 Qf 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 identification cards bearing their name and photograph. Grantee shall account for all identification 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 identifiable 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 in 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 dissatisfied 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. (6) The Customer may initiate the review by filing a written complaint together with Grantee's written decision, if any, with the City. (C) The Customer shall make such filing and notification within thirty (30) days of receipt of Grantee's decision or, if no decision has been provided, within forty (40) days after filing 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 ,e 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. n A�T'E SUE3N11"I°I'ED� Dcccmbcr I. 2UU9 3 .�GENDA BILL CI"f Y OF BREMERTON CITY COUNCIL ...........................................................................................� SUBJECT: Approval of State of Committee Meeting Date: December 9, 2009 Washin�ton lntergovernmental Agreement COUNCIL MEETING Datc: December 16, 2009 for State Purchasing Cooperative Department: Financial Services Presenter: Carol Etgen Phone: 473-5323 SUMMARY: In 2008 the City signed a two-year Interlocal Agreement with the State of Washington Office of Purchasing in order to participate in the State's contract and bidding process. The attached lnterlocal Agreement is for another two-year period for January I, 2010 through December 31, 2011. Departments throughout the City benefit from this program and the cost savings from the cooperative purchasing and bidding process. The participation cost for each entity is based on the expenditure budget, and has not changed from the last agreement. ATTACHMENTS: Intergovernmental Cooperative Purchasing Agreement with the Washington State Office of Procurement FISCAL IMPACTS (Include Budgeted Amount): $3,000 yearly -' � � �•`•-��-�— ° �' � � �� 2d �tl , APPROVALS: � DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: � COMMITTEE CHAIR COUNCIL PRESIDENT: � f � l CONSENT AGENDA � � GENERAL BUSINESS ❑ PUBLIC FIEARING ❑ RECOMMENDED MOT[ON: Move to approve the [ntergovernmental Cooperative Purchasing Agreement with the Washington State Office of Procurement and authorize the Mayor to tinalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Tabie ❑ Continue ❑ No Act�on ._. , . •� � ;, •A State of Washington DEPARTMENT OF GENERAL ADMINISTRATION O�ce of State Procurement Rm. 201 General Administration Buiiding, P.O. Box 41017 Olympia, Washington�98504-1017 (360) 902-7400 http://www.ga.wa.gov STATE OF WASHINGTON INTERGOVERNMENTAL AGREEMENTFOR STATE PURCHASING COOPERATIVE Pursuant to Chapter 43.19 RCW, Chapter 39.34 RCW and WAC 236-49-060, the State of Washington, Department of General Administration, Office of State Procurement, ("Office of State Procurement" or "OSP"), and BREMERTON CITY OF ("Cooperative Member") agree to enter into this Intergovernmental Agreement ("Agreement"), for the purpose of the Cooperative Member participating in the State Purchasing Cooperative Program ("Cooperative") under the following terms and conditions: 1) Washington State political subdivisions (e.g. local governments and school districts) and public benefit nonprofit corporations are eligible for membership in the Cooperative and must be subject to audit by Washington State Auditor's Office (SAO). Offices, departments, divisions, or other sub-units ("subdivisions") within Washington State political subdivisions and public benefit nonprofit corporations may join the Cooperative. However, the subdivision's membership fee will be assessed at the rate of the associated Washington State political subdivision or public benefit nonprofit corporations. Washington state agencies and their subdivisions are automatically Cooperative Members and do not need to apply for membership or pay a membership fee. 2) The Office of State Procurement is required to recover the costs of administering the State Purchasing Cooperative Program from Cooperative Members. The Membe�ship Fee Schedule below sets forth the fee structure for Cooperative Members, which are not Washington State agencies. The Membership Fee Schedule is based on the Cooperative Member's total expenditures, less debt service and inter-fund transfers, as reported in the Cooperative Member's last audited financial statement. 3) The term of this Agreement and Cooperative membership is January 1, 2010 through December 31, 2011. This Agreement may be canceled in writing by either party. However; if the Cooperative Member has used state contracts during the current membership period; the Cooperative Member remains liable to pay any unpaid balance of the membership fee for the entire term. Fees are not based on the level of contract usage. Refunds will not be aiven to members due to lack of contract usaae. 4) The Office of the Superintendent of Public Instruction (OSPI) financial reporting information will be used to verify fee amounts for public school districts, and Educational Service Districts. (ESD's). 5) Any Cooperative Member not reported in the OSPI or State Auditors financial reporting information, must submit a copy of its most recent audited financial statements to OSP upon request. When a Cooperative Member does not have audited financial statements, the Cooperative Member shall provide intemal budgets or financial statements. Once membership fees are verified through such authoritative sources, OSP will issue quarterly invoices for remittance due and payable within 30 days of receipt or due date shown on invoice whichever is sooner. After initial verification and at the beginning of each calendar quarter thereafter, invoices will be sent via electronic mail to the contact listed below. 6) This executed Agreement entitles the Cooperative Member access to state contracts for goods and services as viewed on www.ga.wa.gov. Cooperative Members may only access Western States Contracting Alliance (WSCA) contracts where Washington is the lead state, or has a signed a participating addendum (PA). Cooperative Members are not authorized to enter into separate WSCA participating addenda with vendors. Cooperative Members are also entitled to use Oregon Purchasing Contracts, 7) If a Washington State political subdivision or public benefit nonprofit corporation or a subdivision thereof that is not a current Cooperative Member is found to have used a state contract, WSCA contract, or Oregon Purchasing Contract; that Washington State political subdivision or public benefit nonprofit corporation shall be liable for payment of a full year membership fee. Failure to pay such fee may be reported to the State Auditor's O�ce and result in audit findings against the entity. � 8) The Office of State Procurement, in contracting on behalf of the State of Washington for the purchase of goods and services according to the laws and regulations governing such purchases, agrees to also contract on behalf of the Cooperative Member, to the extent permitted by law. The Cooperative Member accepts responsibility for compliance with any additionai laws and regulations applicable to the Cooperative Member. 9) The Office of State Procurement agrees to comply with its statutory requirements regarding notice for bids or proposais for goods or services subject to this Agreement, and wili either: a) post the bid or solicitation notice on a web site established and maintained by OSP for the purposes of posting public notice of bid or proposal solicitations, or b) provide an access link on the State of Washington's web portal to the notice. 10) When the Office of the State Procurement has entered into a contractual agreement for the purchase of goods or services on behalf of Cooperative Member, the Cooperative Member may purchase goods and services covered by the contract on the same terms and conditions as the State of Washington, except that the contractor has the right to modify payment terms based on its credit assessment of the Cooperative Member. Purchases by the Cooperative Member may be made by a purchase order issued by the Cooperative Member to the contractor. The Cooperative Member is solely responsible for payment for any goods and services it purchases under contracts pursuant to this Agreement or services it purchases directly from OSP. The Cooperative Member agrees to be responsible for limited contract monitoring related to their use of these contracts. 11) The Cooperative Member reserves the right to contract independently for the purchase of any particular class of goods or services, with or without notice being given to OSP. 12) In the event that either the Office of the State Procurement or the Cooperative Member is abolished, this Agreement shall continue in operation as to any entity succeeding to the powers and duties of the abolished party, except as canceled or modified by operation of law. • 13) The Cooperative Member agrees to use only those OSP, WSCA, or Oregon Purchasing contracts authorized under the terms of this Agreement and to comply with those contracts' terms and conditions. The Cooperative Member further agrees that all purchases from OSP, WSCA, or Oregon Purchasing contracts will be made only for the direct use of the Cooperative Member's programs and no purchases will be made on behalf of or for the use of other entities or jurisdictions. 14) It is not the intention of the parties, nor shall this Agreement be interpreted, to create a separate legal entity for the performance of this Agreement. Instead, the Office of State Procurement shall be responsible for administering this Agreement. 15) In accordance with RCW 39.34.040; the Cooperative Member shall be responsible for filing the executed copy of this Agreement with its counry audito�'s office, o� filed in such manner as required by law, to meet public disclosure requirements. This may include listing on the Cooperative Member's intemet site or any other electronically retrievable public source. 16) By its signature below, the Office of State Procurement confirms it approves of this Agreement as required by RCW 39.34.050 and it is authorized to enter into this Agreement pursuant to RCW 39.34.030 and RCW 39.34.080. Similarly, by its signature below, the Cooperative Member confirms it is authorized to enter into this Agreement pursuant to RCW 39.34.030 and RCW 39.34.080. 17) PAYMENT and NOTICES: Payment shall be made to OSP at the address provided below. Further, any notice, demand or other communication required or permitted to be given under this Agreement shall be made to the pa�ties at the addresses provided below. The Cooperative Member agrees to pay the membership fee as a part of this Agreement. Late payments may be subject to statutory interest and co�lection related costs. First time Cooperative Members joining after June 30th may have their fee prorated, if the member has not previously accessed state contracts. Pro-rated fees will be based on 6-month intervals, January — June, June — December. Mail the signed Agreement and payment to: State of Washington, OSP PAF-Non/Prof Fund: 422 04 20 000214, Room 303 General Administration Bldg., P.O. Box 41008, Olympia, WA 98504-1008 Cooperative Member contact information: Contact Person to whom contract documents and related communications are to be mailed or faxed. Cooperative Member Agency Name: Agency Federal TIN #: Contact Name: Address: City, St. Zip Phone Number: Fax Number: Email Address: Secondary Contact: Name: Email: Two-Year Membership Fee Schedule Note: Total ex enditures listed below are minus of debt service and inter-fund transfers Annual Annual Two-Year Verified expenditures expenditures of Membership Fee Level of more than less than Fee $0.00 $3,000,000 $400 $3,000,001 $7,500,000 $1,000 $7,500,001 $30,000,000 $2,000 $30,000,001 $68,000,000 $4,000 $68,000,001 $90,000,000 $6,000 $90,000,001 $150,000,000 $8,000 $150,000,001 and over $10,000 According to the most recent authoritative information; BREMERTON CITY OF, your annual operating expenditures were $80356191 making your two-year fee $6000. The undersigned has read, understands and agrees to the terms and conditions of this Agreement, certifies that he/she is the Authorized Signatory for the Cooperative Member, and certi�es under penalty of perjury under the laws of Washington State that the verified expenditure in the Membership Fee Schedule above is true and correct Cooperative Member Authorized Signature: Signature: Date Signed: Print Name: Title: Address (if not the same as above): Phone Number(s): FOR OSP USE ONLY (Completed by OSP, this page will be returned to you in executed copy) Approved as to form• AAG Date: 10/16/2009 (signature on file) Your assigned Co-op member number is . Please provide this number to vendors when ordering from contracts or communicating with OSP. OSP AUTHORIZED SIGNATURE Verification Used: Name Title Date DA"��F SU[3ti11�('"I�ED: Deccmber 2. 2009 � AGFNDA BILL 5 CITY OF QREMFR"CON CITY COUNCIL .......................................................................................� SUBJECT: Award Contract for Committee Meeting Date: December 9, 2009 Construction of Cambrian Avenue Sewer COUNCIL MEETING Date: December 16, 2009 Repair to Michels Corporation. Department: Engineering Presenter: Michael Mecham Phone: 473-5288 SUMMARY: Three proposals were received in res�onse to a request from the City to complete sanitary sewer repairs in Cambrian Avenue from 13` Street south to Wycoff Avenue. Michels Corporation in Salem, Oregon submitted the lowest responsible, responsive proposal for $72,803.27 (including sales tax). ATTACHMENTS: 1) Council Summary; 2) Public Works Agreement; 3) Attachment l; 4) Attachment 2; 5) Michels Corporation Proposal; and 6) Exhibit. FISCAL IMPACTS (Include Budgeted Amount): This project is funded by the 2009 Wastewater Fund Substandard Main Replacement. � APPROVALS: DEPARTMENT DIRECTOR. ' CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: . COMMITTEE CHAIR COUNCIL PRESIDENT: � CONSENT AGENDA GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: Move to award a contract in the amount of $72,803.27 (including sales tax) with Michels Corporation for construction of the project titled "Cambrian Avenue Sewer Repair" and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action COUNCIL SUMMARY CAMBRIAN AVENUE SEWER LINING Contract Summarv The sanitary sewer system in Cambrian Avenue from 13`" Street south to Wycoff Avenue is failing. The main is an existing 15-inch concrete line from 13` Street to the north side of 11` Street, a 16-inch cast iron line running diagonally from the north side of 1 lcn Street to the south side of 11` Street and Meade Avenue, and then a 24-inch concrete main running easterly from Meade to Wycoff Avenue. The entire main has been compromised by hydrogen sulfide gas which has deteriorated the main. In the concrete portions of the line, this deterioration can be seen as a removal of up to half of the wall thickness above the flow line. The cast iron has seen similar deterioration, with the iron scaling off, thinning the wall thickness and compromising the integrity of the line which is under 40 feet of fill from the l l Street construction. This contract would clean and place a liner capable of replacing the structural integrity lost to the deterioration and which is impervious to the gas and this type of damage. This project consists of cleaning and lining approximately 990 feet of various size main, by-pass pumping flows, reattaching laterals from the residences, providing traffic control and other work, all in accordance with a Public Works Agreement and all attachments thereof, along with the Standard Specifications and City Standards. In accordance with RCW 39.04.155(2), a contractor was selected using the Small Works Roster. Firms were requested in writing for a proposal. The firms contacted from the - roster were Insituform Technologies, Michels Corporation, Columbia Pumping and Construction, and Planned and Engineered Construction. Of the four contacted, three submitted proposals, with Michels Corporation being the lowest responsible, responsive. Fiscal Summary The proposal for completing this work is $67,038.00 plus sales tax, or $72,803.27 total and is funded by the wastewater fund substandard main replacement. 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'F�'e'aY�. `I� �� l . i. .."'i ti '!c.S �. .• 4 : '`�� _ ' �j � � � . �� •.. � � '� - � �,� � '� � . �t�' M »� „- '. ' , r � � � i,.r �A � y�-� � . .�` � "•' � ' .! � °. ' . q•' . �� „� ,n. �: yt�t'{`.�; � '' i �� r ,�, ;•.`'as z'�; �. . t�'' � ,s` `• `� '��, � 'r .� � � f�'P� 1.! � � - `m � � �� - c. �` ° � t ��`"�' � � ��' - U � . 3�_� ..... ._....f_.._.� _ �' . . .. �..._ . _. � t �a�.� ��'1�� ' �"�-.3. � �� PUBLIC WORKS AGREEMENT THIS AGREEMENT, is entered into between the City of Bremerton, a Washington Municipal Corporation ("City"), and Michels Corporation ("Contractor"), whose mailing address is 1715 16` Street, Salem, Oregon 97302. The parties agree as follows: 1. CONTRACTOR SERVICES. The Contractor shall perform construction services, in accordance with generally accepted standards and at the direction of the Public Works Director (Director) for the following project: Provide labor, equipment, and materials necessary to perform repairs of sanitary lines from 13` Street on Cambrian Avenue south to 11 ` Street, then diagonally across 11 ` to Mead Avenue easterly from there to Wycoff Avenue. A detailed description of services is included herein as Attachment 1. The Work shall conform to the 2008 Standard Specifications for Road, Bridge, and Municipal Construction and the Technical Specifications included herein as Attachment 2. All work shall be performed under the control of the Director as provided in Section 1-OS CONTROL OF WORK of the 2008 Standard Specifications for Road, Bridge and Municipal Construction. , 2. TIME OF COMPLETION. The Contract time shall be divided into two phases. Phase I, Procurement, shall be 30 calendar days and shall begin on the date of Notice to Proceed. Phase II, Construction, shall be 30 calendar days and shall begin upon receipt of a second Notice to Proceed from the City. Issuance of the second Notice to Proceed is dependant on consultation between the City and the Contractor. 3. COMPENSATION. The City shall pay the Contractor the total amount of $67,038.00 plus applicable Washington State Retail Sales Tax. The Contractor shall invoice the City monthly. The City will pay for the portion of the work described in the invoice that has been completed by the Contractor and approved by the City. The City payment shall not constitute a waiver of the City's right to final inspection and acceptance of the project. A. Performance Bond. Pursuant to Chapter 39.08 RCW, the Contractor, shall provide the City a performance bond for the full contract amount to be in effect until sixty (60) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor and Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. B. Retainage. The City shall hold back a retainage in the amount of five percent (5%) of any and all payments made to contractor for a period of sixty (60) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State PUBLIC WORKS AGREEMENT — Page 1 of 9 (December l, 2009) (between Ciry of Bremerton and Michels Corporation) Department of Labor & Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. C. Defective or Unauthorized Work. The City reserves its right to withhold payment &om Contractor for any defective or unauthorized work. Defective or unauthorized work includes, without limitation: work and materials that do not conform to the requirements of this agreement; and extra work and materials furnished without the City's written approval. If Contractor is unable, for any reason, to satisfactorily complete any portion of the work, the City may complete the work by contract or otherwise, and Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Contract price specified above. The City further reserves its right to deduct the cost to complete the Contract work, including any Additional Costs, from any and all amounts due or to become due the Contractor. D. Final Pa�nent: Waiver of Claims. THE ACCEPTANCE OF FINAL PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL CONSTITUTE A WANER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. 4. INDEPENDENT CONTRACTOR Contractor is and shall be at all times acting as an independent contractor and not as an employee of the City. The Contractor shall secure at its expense, and shall be responsible for all payments of income tax, social security, state industrial insurance compensation, unemployment compensation, and all other payroll deductions for the Contractor, officer, agents, employees and sub-contractors. The Contractor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Contractor's officers, agents, employees and sub- contractors. 5. TERMINATION. The City may terminate this agreement without notice for good cause. "Good cause" shall include, without limitation, any one or more of the following events: A. The Contractor's failure to supply sufficient skilled workers or suitable materials or equipment. B. The Contractor's failure to prosecute the work with such diligence as will ensure its physical completion within the original physical completion time specified in this Agreement and any extensions of time which may have been granted to the Contractor by change order or otherwise. PUBLIC WORKS AGREEMENT — Page 2 of 9 (December 2, 2009) (between City of Bremerton and Michels Corporation) C. The Contractor's failure to make full and prompt payment to subcontractors or for material or labor. � D. The Contractor's disregard of federal, state or local laws, rules or regulations. E. The Contractor's filing for bankruptcy or becoming adjudged bankrupt. F. The Contractor disregards the authority of the City. G. The Contractor performs work which deviates from the Contract, and neglects or refuses to conect rejected work. H. The Contractor's failure to provide continuous competent supervision. I. The Contractor otherwise violates in any material way any provisions or requirements of the contract. If the City terminates this agreement for good cause, the Contractor shall not receive any monies due under this agreement, if any, until the Contract work is completed. 6. PREVAILING WAGES. Contractor shall file a"Statement of Intent to Pay Prevailing Wages," with the State of Washington Department of Labor & Industries prior to commencing the Contract work. Contractor shall pay Kitsap County prevailing wages and comply with Chapter 39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate provisions. The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached. 7. CHANGES. The City may issue a written or oral work change directive for any change in the Contract work during the performance of this agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the City's project manager within two (2) business days of the date the Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving either a written or oral work change directive from the City or a change order from the City. If the Contractor fails to request a change order within the time allowed, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment the Contractor must complete the change order work; however, the Contractor may elect to protest the adjustment as provided below: PUBLIC WORKS AGREEMENT — Page 3 of 9 (Decem6er 2, 1009) (between City of Bremerton and Michels Corporation) A. Procedure and Protest bv the Contractor. If the Contractor disagrees with anything required by a written work change directive, oral work change directive or change order, including any direction, instruction, interpretation, or determination by the City, the Contractor shall: 1. Give a signed written notice of protest to the City within one business day; 2. Supplement the written protest within five (5) calendar days with a written statement that provides the following information: a. The date of the Contract's protest. b. The nature and circumstances that caused the protest. c. The provisions in this agreement that support the protest. d. The estimated dollar cost, if any, of the protested work and how that estimate was determined. e. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Contractor's records needed for evaluating the protest. 3. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. B. Contractor's Duty to Complete Protested Work. In spite of any protest, the Contractor shall proceed promptly with the work as the City has ordered. C. Contractor's Acce�tance of Chan�es. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). PUBLIC WORKS AGREEMENT — Page 4 of 9 (December 2, 2009) (between City of Bremerton and Michels Corporution) E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). 8. CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only i� no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Contractor's written claim must include the information set forth regarding protests in Section 7.A.2.a.-e. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete. 9. WARRANTY. The Contractor shall correct all defects in workmanship and materials within one year from the date of the Contractor's acceptance of the City's final payment under this contract. When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 10. INDEMNIFICATION. Contractor 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 injuries and damages solely caused by the City's negligence. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and PUBLIC WORKS AGREEMENT — Page 5 of 9 (December 2, 2009) (between Ciry of Bremerton and Michels Corporation) the City, its officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. � IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this agreement. 11. INSURANCE. The Contractor shall procure and maintain for the duration of this agreement, insurance against claims for injuries to persons or damage to property that may arise from or in connection with the perfortnance of the Contract work by the Contractor, its agents, representatives, employees or subcontractors. Before beginning the work on the project described in this agreement, the Contractor shall provide a Certificate of Insurance evidencing: A. Automobile Liabilitv insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and B. Commercial General Liabilitv insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCLn if applicable; and employer's liability. Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor. The City reserves the right to receive a certified copy of all the required insurance policies. The City, its officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The Contractor's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. PUBLIC WORKS AGREEMENT — Page 6 of 9 (December 2, 2009) (between City of Bremerton and Michels Corporation) The Contractor's insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. If this contract requires work to be performed in or on navigable waters, the Contractor shall provide insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate for claims made under the Longshoreman and Harbor Workers Act and the Jones Act. 12. MISCELLANEOUS. A. Nondiscrimination. In the hiring of employees for the performance of work under this Agreement or any sub-contract hereunder, the Contractor, its sub-contractors, or any person acting on behalf of such Contractor or sub-contractor shall not, by reason of race, religion, color, sex, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. B. Compliance with Laws. Contractor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this agreement. C. Work Performed at Contractor's Risk. Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this � agreement. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. D. Nonwaiver of Breach. The failure of the City to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be construed to be a waiver or relinquishment of those terms and rights and they shall remain in full force and effect E. Governin� Law. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. F. Attorney's Fees. To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties' performance of this agreement, each party shall be responsible for payment of its own PUBLIC WORKS AGREEMENT — Page 7 of 9 (December 2, 2009) (between City of Bremerton and Michels Corporation) legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City's right to indemnification under Section 10 of this agreement. G. Written Notice. All communications regarding this agreement shall be sent to the parties at the addresses listed on the signature page of this agreement, unless otherwise notified. Any written notice shall become effective upon delivery, but in any event three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this agreement. H. Assi�nment. Any assignment of this agreement by the Contractor without the written consent of the City shall be void. I. Modification. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor. J. Severabilitv. If any one or more sections, sub-sections, or sentences of this agreement aze held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this agreement and the remainder shall remain in full force and effect. K. Entire A�reement. The written provisions and terms of this agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be , construed as forming a part of or altering in any manner this agreement. This agreement and any attached Exhibits contain the entire agreement between the parties. Should any language in any Exhibit to this agreement conflict with any language contained in this agreement, the terms of this agreement shall prevail. PUBLIC WORKS AGREEMENT — Page 8 of 9 (December 2, 2009) (beriveen City of Bremerton and Michels Corporation) IN WITNESS WHEREOF, the parties below have executed this agreement. CONTRACTOR THE CITY OF BREMERTON Print Name: Print Name: Title: Title: DATE DATE Notices to be sent to: Notices to be sent to: CONTRACTOR: CITY OF BREMERTON: Michels Corporation City Clerk 1715 16` Street 345 6`�' Street, 6` Floor Salem, Oregon 9�302 Bremerton, WA 98337 (503) 364-1199 (360) 473-5323 (503) 391-8317 (facsimile) (360) 473-5200 (facsimile) APPROVED AS TO FORM: � Bremerton City Attorney ATTEST: Bremerton City Clerk R:\LEGAL\Contracts�FORMS�ShortForm.P W.Agr.doc PUBLIC WORKS AGREEMENT — Page 9 of 9 (December 2, 2009) (between City of Bremerton und Michels Corporation) ATTACHMENT 1 SCOPE OF SERVICES General The work to be completed under this alternate consists of installation of approximately 6301inear feet of cure-in-place liner in a 12 inch storm sewer pipe, including all materials, equipment, and labor required to install the liner, cure the liner in place, seal the sanitary sewer pipe at manholes, restore lateral connections, and all other appurtenant work required to install the cured-in-place liner. Work shall be performed in accordance with Attachment 2, CURED-IN-PLACE LINERS. Included with this work, the City requests the Contractor to bid cumulative Alternates as part of the proposal Base Proposal The base proposal is composed of the following parts: 1. Base Proposal The base proposal shall include constructing all items included in the proposal except those items contained in the Alternate(s) A1, A2, A3, (etcetera. ) 2. Alternate(s) A1, A2, A3, (etcetera) a. Alternate A1 � The work to be completed under this alternate consists of installation of approximately 236 linear feet of cure-in-place liner in a 16-inch cast iron sanitary sewer pipe, including all materials, equipment, and labor required to clean/pig the line prior to lining, install the liner, cure the liner in place, seal the sanitary sewer pipe at manholes, and all other appurtenant work required to install the cured-in-place liner. Work shall be performed in accordance with Attachment 2, CURED-IN-PLACE LINERS. b. Alternate A2 The work to be completed under this alternate consists of installation of approximately 120 linear feet of cure-in-place liner in a 24-inch concrete sanitary sewer pipe, including all materials, equipment, and labor required to install the liner, cure the liner in place, restore lateral connections, seal the sanitary sewer pipe at manholes, and all other appurtenant work required to install the cured-in-place liner. . Work shall be performed in accordance with Attachment 2, CURED-IN-PLACE LINERS. Cambnan Sanitary Sew•�r Rehabilitation Attachmeni I-I Citv uf l3remerton I)ep�nment of Public Works and Uulrtirs Proposal Procedures The Contractor shall submit a proposal on each and every item of work included in the Base Bid and all Alternates. Accepted Proposal � Acceptance of the base proposal and alternates is dependent on project funds and the amount of the proposal. The City's preference for awarding the work is as follows: 1. Preference 1: Lowest total for (Base Proposal plus Alternate A1 plus Alternate A2) 2. Preference 2: Lowest totat for (Base Proposal plus Alternate A1) 3. Preference 3: Lowest total for Base Proposal. Work, Materials, and Equipment to be provided bv the Contractor: • Mobilization to and demobilization from the Project Site • Traffic Control per MUTCD • Coordination/cooperation with City crew for bypass pumping. Bypass pumping to be provided by the Contractor. • Installation of cured-in-place liner for the 12-inch, 16-inch and 24-inch lines. • Replacement of the 12-inch line with HDPE. • Restoration of all laterals to the sanitary lines. • CCTV inspection of pipe after lining operations. • Testing of a sample of the installed liner in accordance with ASTM D 790 and ASTM D 5813 at Contractor's in-house laboratory. • Traffic control shall be by the Contractor. Traffic control plans shall be submitted to the Engineer for approval before work commences. Work. Materials and Equiqment to be provided bv the Citv • A backflow preventer for connection to a City fire hydrant for water supply • Water from the nearest fire hydrant for curing the liner • Cleaning of mainline pipe to remove any debris required to be removed from the interior of the pipe prior to lining. • CCTV inspection of pipe prior to lining operations. Video records of this inspection will be provided to the Contractor to confirm pipe cleanliness. • Legal and physical access to the manholes and pipe • Locating, exposing and making accessible all manholes, including removal of obstructions • Spot repairs necessary to prepare the existing pipes for lining, including removal of obstructions that will impede or prevent lining operations and repair of defects in the existing pipe that would be unacceptable in the,finished product • As-built surveys and record drawings • A staging area near the work site • Notification of any affected parties • Provide any necessary permits or variances required for performing the work. Cambnan Sanitary Scwer Rehabilnation Attachment I-2 City uf l3remerton Ucpartment of Public Works and Uulmes Other Conditions pertinent to the performance of the Contract • No overtime inspection fees or penalties will be billed to the Contractor for working outside the normal working hours. • Working hours will be restricted from 8am to 9pm, Monday through Sunday. Actual working hours will be submitted and approved by the City prior to work beginning. Schedule Task Duration Start Finish Notice to Proceed - 11/16/2009 11/16/2009 Procurement 30 da s 11/16/2008 12/16/2009 Construction 30 da s 12/17/2009 1/17/2009 Note 1: Date of Notice to Proceed is assumed. Schedule will begin on actual date of Notice to Proceed. Cambrian Sanitary Sewer Rchabihtation Attachment 1-3 Ciry of E3remertun I)epartment of Publ�c WorMs and Ut�hties CURED-IN-PLACE LINERS SECTION 02511 PART 1 — GENERAL 1.1 DESCRIPTION A. This specification defines the requirements for the rehabilitation of pipelines by the installation of a resin-impregnated liner. The liner may be installed either by inversion or may be pulled in to place. The resin is cured using steam under air pressure or hot water under hydrostatic pressure within the liner. The Cured-In-Place Pipe (CIPP) will be continuous and tight fitting. 1.2 REFERENCE STANDARDS Reference Title ASTM F1216 Standard Practice for Rehabilitation of Existing Pipelines and Conduits by the Inversion and Curing of a Resin-Impregnated Tube ASTM F1743 Standard Practice for Rehabilitation of Existing Pipelines and Conduits by Pulled-in-Place Installation of Cured-in-Place Thermosetting Resin Pipe (CIPP) � ASTM D790 Standard Test Methods for Flexural Properties of Unreinforced and Reinforced Plastics and Electrical Insulating Materials ASTM D543 Standard Practices for Evaluating the Resistance of Plastics to Chemical Reagents ASTM D2990 Standard Test Methods for Tensile, Compressive, and Flexural Creep and Creep-Rupture of Plastics ASTM D3839 Standard P�actice for Underground Installation of "Fiberglass" (Glass-Fiber- Reinforced Thermosetting- Resin) Pipe 1.3 DEFINITIONS A. Definitions are in accordance with terminology of ASTM F412, unless otherwise specified. Abbreviations are in accordance with terminology of ASTM D1600, unless otherwise specified. 1. Service Connection: The point where the lateral pipe intersects with the mainline pipe, also known as the lateral interface. It can consist of a tee, wye, or cut-in connection. • � 2. Host Pipe: An existing pipeline or conduit to be internally rehabilitated by installation of a pipe liner. 3. Manufacturer and/or Assembler: The entity responsible for obtaining individual components of a cured-in-place liner system and assembling into the final products which are shipped to the job site for installation. Attachment 2 0251 1-1 City of Bremerton Departmen[ of Public Wurks and Utilit�es 4. CIPP Contractor: Licensed Contractor of subcontractor responsible for the installation of the cured-in-place liner system in the field. 5. Lateral Cutter Operator: The person directly responsible for reinstating service connections. 1.4 QUALIFICATIONS A. Qualification Requirements: 1. The Manufacturer or Assembler shall have supplied a minimum of 50,000 linear feet of liner for similar projects. Contractor shall provide a list of installation projects including project names, owner contacts, phone numbers, and year installed. 2. The CIPP Contractor shall have completed a minimum of three projects installing CIPP similar in type, complexity, and value to the Work. The three projects shall have been completed in the last five years. The CIPP Contractor shall have installed a minimum of 50,000 linear feet of CIPP. Contractor shall provide a list of installation projects including the project names, owner contacts, phone numbers and year installed with the Bid Documents. 3. The Lateral Cutter Operator shall have a minimum of 6 months experience. Contractor shall submit experience of all personnel to be used as Lateral Cutter Operators. 4. Provide certification showing that the Contractor is currently licensed by the manufacturer to install the specified product. 1.5 LICENSING AND CERTIFICATION A. The Contractor or subcontractor installing the CIPP shall have a current license agreement with the product Manufacturer or Assembler. 1.6 SUBMITTALS A. Procedures: Part 3, Division 1. B. Qualifications information. C. Shop drawings and equipment data: 1. Details on all lining materials and resins. 2. Name of resin supplier and liner fabric supplier. 3. Technical data showing that the cured CIPP system meets the chemical resistance, corrosion resistance, flexural strength, flexural modulus, long term flexural modulus, and wall color requirements of " this specification section. 4. Manufacturer certification that the liner materials are in compliance with the specifications, codes, and standards reference herein. 5. Manufacturer's recommendation for storage procedures and temperature control, minimum and maximum pressures and temperatures; time durations for handling and inserting the liner, curing, and cool down; service connection methods, and trimming and finishing. 6. Material Safety Data Sheets for resins, hardeners, solvents, and atl other compounds or chemicals to be used on job site. 7. Flat plate samples from each section of liner. Attachment 2 0251 I-2 Cny of Hrcmerton Department of Pubhc Works and Utihties D. Pipe sizing calculations which demonstrate that the liner has been properly sized to avoid the creation of wrinkles or folds. E. Bypass pumping and/or diversion plans at least 10 working days prior to . the work. Notify the ENGINEER 24 hours prior to commencing with the bypass pumping operation. The Contractor's plan for bypass pumping shall be satisfactory to the ENGINEER before the CONTRACTOR shall be allowed to commence bypass pumping. Identify the liner insertion and bypass pumping locations and methods with sufficient details to assure that the work can be accomplished without sewage spill. The bypass pumping plan shall include an emergency response plan to be followed in the event of a failure of the bypass pumping system. F. The resin manufacture's heating requirements, and conceptually discuss with the ENGINEER the general curing guidelines. 1.7 QUALITY ASSURANCE A. The finished CIPP shall be continuous over the entire length of an insertion run between finro manholes or access points and shall be free from visual defects such as foreign inclusions, dry spots, pinholes, and delamination. B. Wrinkles in the finished CIPP greater than'/z-inch shall be unacceptable and shall be removed and repaired by the Contractor at the Contractor's expense. Methods of repair shall be proposed by Contractor and submitted to the Project Representative for review. PART 2 — PRODUCTS 2.1 MATERIALS A. Liner: 1. The CIPP shall consist of one or more layers of flexible needled felt or an equivalent non-woven material, or a combination of non- woven and woven materials capable of carrying resin and withstanding installation pressures. 2. The liner shall have a uniform thickness that when compressed at installation pressures will meet or exceed the design thickness. 3. The liner shall tightly fit the internal circumference and length of the host pipe. 4. The liner shall be homogeneous across the entire wall thickness containing no intermediate or encapsulated elastomeric layers. No material shall be included in the tube that may cause delamination in the cured CIPP. No dry or unsaturated layers shall be evident. 5. � The wall color of the interior pipe surface of CIPP after installation shall be a light reflective color. 6. Seams in the liner shall be stronger than the non-seamed fabric. 7. The outside of the shall be marked for distance at regular intervals along its entire length, not to exceed 25 ft. Such markings shall include the Manufacturers name or identifying symbol. ,�ttachment 2 02511-3 City of Bremcrton I)epartmcnt uf Public Works a�id Utilities B. Resin: The resin shall be a corrosion resistant polyester, vinyl ester, or epoxy system. C. The layers of the cured CIPP shall be uniformly bonded. It shall not be possible to separate any two layers with a probe or point of a knife blade so that the layers separate cleanly or the probe or knife blade moves freely between the layers. D. Subject to these specifications, the following manufacturers or assemblers are acceptable. 1. Gelco Services Inc. (Salem, OR) 2. Pacific Multilining Inc. (Abbotsford, BC, Canada) 3. C.I.P.P. Corporation (Hudson, IA) 4. Perma-Liner Industries, Inc. (Clearwater, FL) 5. LMK Enterprises Inc. (Ottawa, IL) 6. Insituform Technologies, Inc. (Chesterfield, MO) 7. Inliner Technologies (Paoli, IN) 8. Or Equal E. Chemical grout shall be Avanti's AV-100, or as approved by the Engineer. An alternative to the chemical grouting rehabilitation method may be proposed and used, if approved by the Engineer, if it provides a water-tight lateral connection. 2.2 DESIGN PARAMETERS A. The hydraulic capacity of the CIPP shall be greater than or equal to the hydraulic capacity of the original host pipe, based on hydraulic calculations with standard engineering roughness coefficients. . B. The liner thickness shall be designed based on the engineering formulas listed in ASTM F1216 for fully deteriorated pipes, assuming groundwater at the surface, HS-20 live loading, 120 pounds per cubic foot dry soil density, and depth of cover as determined by the adjacent upstream or downstream manhole, whichever is deeper. The thickness shall be sufficient to prevent groundwater from entering the pipe, while maintaining the maximum cross- sectional pipe area possible. C. The liner thickness shall be designed based on the engineering formulas listed in ASTM F1216 for fully deteriorated pipes, assuming groundwater at the surface, HS-20 live loading, 120 pounds per cubic foot dry soil density, and depth of cover as determined by the adjacent upstream or downstream manhole, whichever is deeper. The thickness shall be sufficient to prevent groundwater from entering the pipe, while maintaining the maximum cross- sectional pipe area possible. The CIPP design shall assume no bonding to � the original pipe wall. :lttachment 2 (1251 I-d Ciry of Brcmerton Departm�nt of Pubhc Works anJ Utilitics MINIMUM PHYSICAL PROPERTIES Curred Composite Curred Composite Composite Property Test Method min. per ASTM F1216 (400,000 psi Resin) ASTM D-790 Modulus of Elasticity (short term) 250,000 psi 400,000 psi Flexural Stress ASTM D-790 4,5000 si 4,000 si D. Chemical Resistance: The CIPP shall meet the chemical resistance requirements of ASTM F1216, Appendix X2. CIPP samples for testing shall be of liner and resin system similar to that proposed for actual construction. E. Hydraulic Capacity: Overall, the hydraulic profile shall be maintained as large as possible. The CIPP shall have a minimum of the full flow capacity of the original pipe before rehabilitation. 2.3 SAMPLES A. CIPP Field Samples: When requested by the ENGINEER, the Contractor shall submit test results from field installations of the same resin system and tube materials as proposed for the actual installation. These test results must verify that the CIPP physical properties have been achieved in previous field applications. PART 3 — EXECUTION 3.1 HANDLING AND STORAGE A. Handling and storage of the resin-impregnated liner before installation shall be per the manufacturer's instructions. 3.2 INSTALLATION A. Cleaning and Inspection: 1. Contractor shall clean and inspect the pipe immediately prior to lining. 2. All roots, debris, rolled gaskets, mineral deposits, and protruding service connections shall be removed prior to the CIPP lining process. 3. The current condition of the pipe shall be compared to the original designed condition to verify that design parameters have not changed and that the pipe can be lined as planned. B. Pre-Construction CCTV Inspection 1. Perform a closed circuit television (CCTV) inspection of the pipeline prior to liner installation. Provide two copies of video tapes to ENGINEER. C. Point Repairs 1. Contractor shall chemically grout active leaks in host pipe as recommended by Manufacturer or Installer. Attachm�nt 2 02� I I-� Crty of f3remerton Dcpartmcnt uf Pubhc Wurks and Utilities D. Public Notification: 1. The Contractor shall make every effort to maintain service usage throughout the duration of the project. In the event that a service will be out of service, the maximum amount of time without service shall be 8 hours for any property served by the sewer. A public notification program shall be implemented, and shall as a minimum, contact each home or business connected to the sanitary sewer and informing them of the work to be conducted, and when the sewer will be off-line. The Contractor shall also provide the following: a. Written notice to be delivered to each home or business the day prior to the beginning of work being conducted on the section, and a local telephone number of the Contractor they can call to discuss the project or any problems which could arise. b. Personal contact with any home or business, which cannot be reconnected within the time stated in the written notice. E. The Contractor shall be responsible for confirming the locations of all service connections prior to installing and curing the CIPP. F. CIPP installation shall be in accordance with ASTM F1216, Section 7, or ASTM F1743, Section 6, with the following modifications: 1. Resin Impregnation: a. The quantity of resin used for liner impregnation shall be sufficient to fill the volume of air voids in the tube with additional allowances for polymerization shrinkage and the loss of resin through cracks and irregularities in the host pipe wall. Any alternate resin impregnation method must be proven. b. The resin impregnation method shall be vacuum impregnation, or an alternate proven method producing similar results. 2. Liner Insertion: - Inversion Method a. The impregnated tube shall be inserted through an existing manhole or other access point by means of the Manufacturer's or Assembler's recommended installation process and in accordance with ASTM F1216. The application of a air or water pressure shall fully extend the liner to the next designated manhole or termination point , and inflate and firmly adhere the liner to the pipe wall. b. Single line�s may be installed through intermediate manholes. c. When inversion is by water pressure, the Contractor shall use methods which control the installation rate, accounting for the increase in hydrostatic head in pipes which have significant elevation change. :�ttachment 2 02� I I-6 City of F3remerton I)cpartm�nt uf Public Works and Utilities 3. Liner Insertion: - Pull/Winch Method a. The impregnated tube shall be pulled into place in � accordance with ASTM F1743 within the host pipe with the aid of a power winch. b. The maximum allowable longitudinal elongation, or stretch, of the material shall be one one percent. The longitudinal stretch of the tube shall be gauged by comparing marker on the fully inserted tube to the actual length of pipe being rehabilitated. 4. Existing sewers to be lined may be located on steep slopes. The impact of the slope and grade change shall be accounted for in the design and installation of the liner. 5. Curing: a. After placement of the liner is complete, provide a suitable heat source and distribution equipment. The equipment shall be capable of circulating hot water or steam throughout the lined section in accordance with the Manufacturer's or Assembler's recommendations to raise the temperature uniformly above the temperature required to affect a resin cure. This temperature shall be determined by the Manufacturer or Assembler based on the resin/hardener system employed. b. The heat source shall be fitted with continuous monitoring thermocouples to measure and record the temperature of the incoming and outgoing hot water or steam. c. Provide standby equipment to maintain the heat source , supply. The temperature during the cure shall not be less than 130 degrees Fahrenheit at the boundary between the pipe wall and the liner unless otherwise directed by the Manufacturer. d._ Temperature shall be maintained during the curing period as recommended by the Manufacturer, and shall follow the heating schedule supplied by the Manufacturer. e. A data logger shall record temperature, pressure and time during heating, cure, and cool down at both ends of the liner. Contractor to provide a color plot in Microsoft Excel format comparing temperature and pressure against time. Units shall be degrees Fahrenheit, psi and minutes. 6. Cool Down a. Cool the liner down to below the temperature specified by Manufacturer following the cure period, for duration specified by Manufacturer, prior to relieving installation pressure. b. Care shall be taken to ensure that a vacuum is not induced , which could damage the new CIPP during the release of head on the new CIPP. c. Continue data logger operation throughout the cool down phase. 7. Sealing of the Sewer Main at the Manhole: Make a watertight seal using a minimum of 12-inches of epoxy grout between the CIPP liner and the host pipe at the manholes. No water shall be able to Attachment 2 0251 I-7 C'�ty of [3remerton Dcpanmrnt uf Pub�ic Works and Utilrtirs migrate between the CIPP liner and the host pipe, otherwise the CIPP shall be considered defective and shall be repaired or replaced at the Contractor's expense. G. Reinstatement of Service Connections 1. Lateral connections identified on the drawings or discovered in the field shall be cut open and brushed smooth with a remote cutting tool from inside the lined pipe. Provide a nearly full-diameter hole, free from burrs or projections and with a smooth and crack-free edges. The hole shall be 95 percent minimum and 100 percent maximum of the original service connection inside diameter. 2. The service connection opening shall be chemically grouted to produce a water tight seal. 3.3 TESTING A. CIPP samples shall be prepared in accordance with ASTM D5813, Section . 7, ASTM F1216 or ASTM F1743, Section 8, using either method proposed. The flexural properties must meet or exceed the values listed in Table 1 of the applicable ASTM standard. B. CIPP flat plate samples shall be submitted to the ENGINEER for testing. The sample will be large enough to allow for a minimum of five specimens for flexural testing. Samples shall be cured on conditions similar to those of the CIPP liner. C. Wall thickness of samples shall be determined as described in paragraph 6.3.3 of ASTM D5813 or paragraph 8.1.6 of ASTM F1743. The minimum wall thickness at any point shall not be less than 87'/Z% of the design thickness. D. Visual inspection of the CIPP shall be in accordance with ASTM F1743, Section 8.6. � E. Should the pre-installation inspection reveal conditions in the sewer to be substantially different than those presented in the appendices of these Specifications, the Contractor shall report the changes to the Engineer along with supporting videotape recording of existing conditions. 3.4 FIELD QUALITY CONTROL A. Should the post-installation CCTV inspection reveal any material flaws or ineffective installation of the liner, the Contractor will make corrections as approved by the Engineer, at no cost to the OWNER. END OF SECTION Attachment 2 0251 I-8 City of [3rcmerton Departm�nt of Public Wor6s and Utilrties ,t9tclrel.s is sl�nalnn� to !he Labn�en. Unton �' -:. � J, y � �•, y .R t)'Y'�"�'{��+� °, i t ` 9 l �'7 ry + , k ,, � , jkAj ;4i'�.r 4L'� E f1 �s. �'�� Michels Cornoration Attn: Gunnar Fridriksson November 6 2009 Civil Engioeer It Re: Carobrian Avenue Sewer Repairs C(PP Proposal i�tichels Corporation is pieased ro provide the following quote to your firm for the above-mentioned proj�ct, per yuw� request. The following prices should be considcred cantidential. Your investment for this pro�ect is as ti�llows: -------- --- - - � � - - - - ---- �-- - __ Item Descri tion uantl U/M Unit E:tension - _— Bsae Pro�osal � i ITCM: 1-_ _ - Mobilitation __--- I l.S 3.0110.00 ' 3AU�.00 r - - - _ _�_ �.._--•-- I fT[iM: Z- 12" C1PP �i30 LF d3.01) � 27,09(l.f►t) �---- --- - --- - - __ _ __ Alternate A1 _ _ � (. f fEM: I- � 16" Cii't' Alternate AI 236 l.P 93 �)0 21.9�18.(10 Alter nate AZ I"t C:M: 1- '_J" CIPP Altcmatc .A2 12� I.F I?5.�1t1 I5.0�.1)0 � ------1---- ---� _.___._ Total S 67,038.00 I Items Included in Michels Pipe Services' Pr000sal: • One mobilization only to and t�om project site. Any addihonal mobilizations �vill bc ncgutiatcd • Traffic contrvl for Michels' operati.�ns. • 13ypass of sanitary sewcr maiuline Ilow ris re��wred �i�r �'IPP in,trillatiun. • "Pretni�r Pipc USA" Cured in�talled ai locanons associated �vith quotcd items. • Internally reinstate laterals ass�ciatcd with CIPP inst�llation. • Post-C1can,CCTV inspect pipe after t:1PP installation. • Sample testing of fi�iished CIPP. • If required. Michrls will pr�vide hond at 2 perceni at total price. Any task or item not specitically included under this Proposa! Letter is excluded from the scope of this project. Any additioael items or ioformation provlded to Michels Pipe Services after the date of this Proposal Letler may result in modifications and/or adjustmeots to t6e schcdule nnd pricing. Items Not Included in Ylichels Piae Services' Proposal: • Site R�`torntion 1lichcltC_�rp,ratinn I?li_Ih_� '�alrin ��R��';r,? I�h. l,i�e{i�cJ (�ri�rr.tl t. �rWia�l:�r� in � a.I�� I,`1"'l;7) �.\' �_,hm ��;n �.,\Ilt'lli;l ";��vill >,lrniem� �+"'�-!, �'�rc��a�;t=11 t:'R� - _. )�_ - t- - - - bi;d��_Lrli r �I�A):niat �3p1=�1'��_\1)�tirl.('iprliu��_,�n,in�.��,�n'_`:e�.l�l�_�??_.'R?� 1Li�..��_;='_I__I'ii!..lii:r�nai*%.,�.t+�)r Michels is sienatorv to the Labarers Unlon Items & Tasks to be arovidcd by CltenUOwner (aon-chargeablel: • Clean / CCTV of pipelines prior to CIPP installation. To Michels' standards • Water source to be H�ithin 340' of installatian location. Including bacf�flow preventer. • Dumpsite at or near the project site for material removed from pipeline. • Any and all environmental requirements. Including SWPPP and F.rosion control. • Any required waste �vater containment and remediation. • Lega! cigl�t of way access and physical access to both ends of each pipe segment for equipment and personncl to perform all aspects of C1PP operation. • Notification of affected parties on a daily basis of the status of the project. • A rnutually agreed upon schedule for the project. • All permits, fees, licenses, engineering etc., including but not limiting to railroad permits/insurance if reyuired. • Any point repairs/mechanical work required to install CIPP liner. Including removal ot manhole coue (S3MH 3), to facilitete bypass and C�P in9tallstion. • Verification of pipe diameter, line length, pipe condition and Miehels' pipe design and material selection. Any change in diameter, line length, waU thickness, or overall project footage will result in an equitable increase or decrease in unit price. Any change in installation locations as stated in ori�inal documents may result in an increasc or dccrease in unit price. If at any time Michels Cotporation discovers any condition that existed but was not discovered due to no feult of Michels Corporation or arises that prevents Michels Corporation from ttte installation of CIPP by normal methods, Michels' reserves the right to modify this Praposal Letter and any terms or conditions herein. IjoWr crerv� an delayed thro�gb no fault of tlielr own, Mkhels wlll chorge the responsibla porty a1,3S0.00 per crew standby hoar jor straight dme wor$1 K time on a!l overd�ne work and double d�ne on aQ weeXe�d work; th�s rate wip also be applled for ary extra neoblHzado�s, indochlnattoas, nreetings, erafning, ect Material acyuisition lead-time is generally 4 weeks to jobsite location. This quote is valid for 30 days and the payment terms are Cash, Net 30 days, no retainage, and supersede general or prime contract. If the Prime Contractor elects to accept Michels' proposal then both parties expressly agree that this proposal letter will be Pulty incorporated into the CONTRAC"T or SUBCONTRACT AGREEMENT. In the event of a conflict between any other provision in tfie Contract or Subcuntract Agreement, the scope and intent of this Proposal Letter shall goe•ern. Michels appreciates your consideration of this quote and Ivoks forward to working with you on this pro}ect. Please feel free to contact me at (503) 364-1199 if 1 may answer any questions yuu may have. Sincerely, Michels Corporation S�= ""'"`__� Sam Zandofsky Estimator / Aroject Manager Michels_Ls?r r. ion I'l�.l§"'S� Sulcm"��li97i(�2_f'hnnct�D3)if�4-1199;Fa+c�031�91-�t317 I,i.rnscA (;cncral Contra.lo�.u� Aln;►,a i�27A�7�,11�'�ehing�un i4\1lCHt��:'QN91F3),_�•I�intana (�i74�i�� tJiho I� I bl I S-�4A,4-31. C�liliirni�l�55361? Jba ivLchcts Piueline Cqn�tn�cti��nl, �:evad� 1�7:5282), liati�n�i_�4�'1? I_J�,: �riLnr�a {k3,528.SU) DATE SUBMITTED: December 2, ?009 � � AGENDA BILL CITY OF BREMERTON CITY COUNCIL .......................................................................................� SUBJECT: Amendment to the Professional Committee Meeting Date: December 9, 2009 Services Agreement with Parametrix for COUNCIL MEETING Date: December 16, 2009 Construction Support of the Gorst Sewerage Department: PW&U, Engineering Project Presenter: Michael Mecham Phone: 473-5288 SUMMARY: The City will require construction management support during the construction of the Gorst Sewerage Project. The City currently has a contract with Parametrix, Inc. to design the project. The proposed Amendment to the current Parametrix contract would increase the contract by $182,000 to provide specific construction management services for the Project. The requested action before Council is approval of an amendment for construction support to the Professional Services Agreement with Parametrix, Inc. in the amount of $182,000. ATTACHMENTS: 1. Council Summary, 2. Amendment to Professional Services Agreement. FISCAL IMPACTS (Include Budgeted Amount): The Gorst Sewerage Project includes the Gorst Sewerage and Gorst Septic System Abandonment projects. The former is funded by a$3,620,213 ARRA "Forgivable Principal" loan and a$520,987 ARRA loan. The Septic System Abandonment project is funded by a$1,283,000 ARRA "Forgivable Principal" loan. The 2010 budget is $5,200,000 for the Gorst Sewerage project and $1,390,000 for the Gorst Septic System Abandonment project. APPROVALS: DEPARTIV�ENT DIRECTOR: ' CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR �,, COUNCIL PRESIDENT: CONSENT AGENDA GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: Move to approve the Amendment to the Professional Services Agreement with Parametrix, Inc.,` in the amount of $182,000 (including sales tax) for Construction Support of the Gorst Sewerage Project and authorize the Mayor to tinalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action COUNCIL SUMMARY AMENDMENT TO PSA WITH PARAMETRIX GORST SEWERAGE PROJECT Summarv Parametrix was approved by City Council on May 20, 2009 to provide the design for the Gorst Sewerage Project. The design work is complete and finro construction contracts for two sewage pump stations and for the collection system and septic system abandonment have been awarded. City staff is requesting that the contract with Parametrix be amended to provide construction management support for the two construction contracts. The support includes, contract document administration assistance, preparation of record documents, permit support, support on contractor requests for information and submittal reviews, construction survey, and special inspection and commissioning support. The proposed budget for these services is $182,000. Fiscal Summarv The project is funded by a combination of ARRA Grant and Loan funds, and Wastewater Rates. The project is included in the 2009 and 2010 Wastewater Capital Budgets; construction costs will be expended in 2010. The 2010 budget for Gorst Sewerage is $5,200,000; the budget for Gorst Septic System Replacement is $1,390,000. Crry of l3re��tc�r�on Prige 1 nf l C:ors� .Seirernge' .Vr�vc nther. ?009 AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT FOR GORST UGA SEWERAGE PROJECT The City of Bremerton, Washington, (the "City"), and Parametrix, ("ConsultanY') have entered into a PROFESSIONAL SERVICES AGREEMENT for the project identified as the Gorst Sewerage Project. This AMENDMENT NO. 3 modifies the Scope of Work and Budget set forth in the AGREEMENT dated June 5, 2009 and as amended on July 30, 2009 (Amendment No. 1) and November 23, 2009 (Amendment No. 2), as outlined in the attached Exhibit A: � The Compensation for services shall be increased by $182,000 and the total fees under this Agreement shall not exceed $905,078. Except as herein modified, the terms of the AGREEMENT shall remain in full force and effect. In WITNESS WHEREOF, the parties hereto have executed the AMENDMENT NO. 3 to the Professional Services Agreement the date and year indicated. For Parametrix, dated this day of , 2009. By: Diane Lenius Its:Vice President For the City of Bremerton, dated this day of , 2009. By: Patty Lent, Mayor DEPARTMENTALAPPROVAL: Phil Williams, Director of Public Works and Utilities APPROVED AS TO FORM: City Attorney RECEIVED FOR FILING: Carol Etgen, City Clerk I E1(H9BIT A- SCOPE OF �VOR6U�UDGET GORST SEWERAGE PROJECT PROFESSIONAL SERVICES AGREEMENT AMENDMENT NO. 3 The following summarizes additional professional services to provide support to the City staff during the bidding construction phase of the project. ADMINISTRATIVE SUPPORT Task 01 — Project Management and Document Control Support • Attend meetings with the City staff related to coordination of the design with construction activities and assist with document administration related to the Ecology and ARRA funding. • Proposed task budget is $5,000.00. Task 02 — Addenda Preparation and Conforming Documents • Prepaze addenda for both the pump stations and collection system bid documents based on City and Bidder questions and input. Once the bids aze opened, prepare a set of plans and specifications that incorporate the addenda changes into a"conformed" bid document to be used during construction. • Proposed task budget is $9,500.00. Task 03 Record Documents • Following completion of all construction, prepare a set of plans and specifications that incorporate changes made during construction. The input for the record documents shall be the contractors "Red Line" plans and the City Inspector's notes/records. • Proposed task budget is $18,500.00. Task 04 — Permit Follow • Assist with securing permits required by the City or the Contractor to construct the pump stations and the collector system. • Proposed budget is $7,500.00. Task 05 — RFI Responses � Assist the City staff prepare responses to the Contractor or Vendor/Supplier "Request for Information" (RFI). � Proposed budget is $10,000.00. Task 06 — Submittal Reviews • Provide engineering review of the applicable submittals made by the contractor as required in the respective specifications related to submittal documents. • Proposed budget is $50,000.00 Gorsl UGA Setiverage Pro�ect ' 236-1896-085 1 November 2009 Task OT — Meetings • Participate or attend meetings as requested by the City related to the construction of the facilities. It � is anticipated that no more than 40 hours of the Parametrix team members effort will be required for meetings. o Proposed budget is $5,000.00. � FIELD SUPPORT Task 08 — Survey � Using the primary site control established during design, stake the manholes inciuding invert elevations; lateral subs and clean outs; required locations of structure at the pump stations; and as- constructed survey support. City is to secure all applicable right-of-entry for survey work on private property. • Proposed budget is $60,500.00. � Task 09— Special inspection Service � As set forth in Section 02340 of the pump station specifications, AMEC will provide the engineering review of the design and installation of the Aggregate Piers at both pump stations. The contractor will be responsible for the actual system design and installation. • Proposed budget is $8,000.00. Task 10 Commissioning Support • Provide support to City staffduring,the start up and commissioning of the pump stations and grinder pumps. • Proposed budget is $8,000.00 PROPOSED BUDGET ADMINISTRATIVE SUPPORT Task O1 Project Management and Document Control Support ................................................. $5,000.00 Task 02 Addenda Preparation and Conforming Documents ..................................................... $9,500.00 Task 03 Records Documents ................................................................................................... $18,500.00 Task 04 Permit Follow-up ......................................................................................................... $7,500.00 Task RFI Responses ........................................................................................................... $10,000.00 Task 06 Submittal Reviews ..................................................................................................... $50,000.00 Task Meetings ...................................................................................................................... $5,000.00 Gorst UCA Sewerage Project 236-1896-085 2 November 2009 FIELD SUPPORT Task . Survey ....................................................................................................................... $60,500.00 Task 09 Special Inspection Services ......................................................................................... $8,000.00 Task l 0 Commissioning Services ............................................................................................. $8,000.00 TOTAL ............................................................................................... $182,000.00 Gors[ UG.4 Seiverage Project 136-1�496-085 3 November 1009 DA"I�E SUBMI'1"CED: � .aGF.NDA BII.L � CITY OF BREMERTON CITY COUNCIL .......................................................................................� SUBJECT: Amendment to State Revolving Committee Meeting Date: December 9, 2009 F�md Loan A�reements between the COUNC[L MEETING Date: December 16, 2009 Department of Ecology and the City of Department: PW&U, Engineering Bremerton for the Gorst Sewerage and Gorst Presenter: Tom Knuckey / Mike Septic System Abandonment Projects. Mecham Phone: 473-2376 / 473-5288 SUMMARY: On May 20, 2009, the City accepted $6,102,550 in Loans and Forgivable Principal loans (Grants) to design and construct the Gorst Sewerage and Gorst Septic System Abandonment Projects. During design, it became obvious that the available funding would not be sufficient to construct the entire collection system; therefore the bid scope was broken into a base bid with several alternatives. On December 2, 2009 the City Council awarded construction of the base bid, and approved acceptance of additional Forgivable Principal Loans. Subsequent to this award, the Department of Ecology offered an additional $80,631 in loans, and $591,294 in Forgivable Principal Loans (grants) to construct additional project scope, and indicated that additional funding may be forthcoming. The requested action before the City Council is approval of up to $175,000 in additional loans for construction of the Gorst Sewerage and Gorst Septic System Abandonment Projects. ATTACHMENTS: l. Council Summary; 2. Site and Vicinity Map FISCAL IMPACTS (Include Budgeted Amount): The 2010 budget is $5,200,000 for the Gorst Sewerage project and $1,390,000 for the Gorst Septic System Abandonment project. APPROVALS: DEPARTMENT DIRECTOR: �, fl� ��'h C� � CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR ° COUNCIL PRESIDENT: ` � CONSENT AGENDA GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: Move to approve an increase of up to $175,000 in Loan fimding for the Gorst Sewerage project, and authorize the Mayor to finalize and execute the necessary documents to accept the additional loan f�u�ding. COl�V('IL ;1("['IO�I: ❑ ;�E�}�ro��c ❑ Urny ❑ Tahl� ❑ ('untmur ❑ No ��rtiun COUNCIL SUMMARY AMENDMENT TO STATE REVOLVING FUND LOAN AGREEMENTS BETWEEN THE DEPARTMENT OF ECOLOGY AND THE CITY OF BREMERTON FOR THE GORST SEWERAGE AND GORST SEPTIC SYSTEM ABANDONMENT PROJECTS Contract Summarv On May 20, 2009, the City accepted $6,102,550 in Loans and Forgivable Principal loans (Grants) to design and construct the Gorst Sewerage and Gorst Septic System Abandonment Projects. During design, it became obvious that the funding offered would not be sufficient to construct the entire sewer collection system; therefore the bid scope was broken into a base bid with several alternatives to allow the City maximum flexibility in awarding the contract while minimizing expenditure from rates. The project was bid in November and the contract award for the Collection System was presented to Council on December 2, 2009 — as presented, the projected rate expenditure for construction (without contingency) was approximately $240,000. In November, the Department of Ecology indicated additional funding beyond the original offer might be available, and requested the City put procedures in place to quickly accept and obligate the funds. At that time, it was understood that the offer would include grant funds only. To accommodate this request, the motion included in the December 2, 2009 Agenda Bill included authorization for the Mayor to approve amendments to the State Revolving Fund Agreements to accept additional grant funds, and to approve Change Orders in excess of the limits of BMC 2.76.110 up to the amount of the additional grant funds offered. On December 3, 2009, staff was notified that an additional $671,925 was made available to the City for the Gorst project, and further notified that this funding (along with any future funding) would be provided at a split of 12% loan to 88% grant — the actual funding offered was $80,631 in loan and $591,294 in grant funds. These additional funds reduce the projected 2010 rate expenditure for construction to $133,000, and provide for a$30,000 contingency for the Septic System Abandonment project. Should additional funds become available, it is believed that the maximum offer to the City would be $781,000. Of this amount, $93,720 (12% of the total) would likely be in loan funds. Given that Ecology has indicated additional funding may be made available in the future and to expedite acceptance and obligation of any future offer, the requested action of Council would allow the Mayor to approve an increase in loan funding up to $175,000. $175,000 is the rounded sum of the $80,631 currently offered, plus the $93,720 anticipated maximum offer. Fiscal Summarv The offered grant and loan funding is as follows: Project Interest Rate Initial Amount Additional Approx and Term Offered Amount Annual Offered Debt Svc 12/3/09 Gorst Sewerage Forgivable $3,940,592 (1) $485,109 N/A Princi al Desi n 1.4%, 20- r $520,987 N/A $29,880 Construction 9.4%, 20- r $568,350 $80,631 $37,222 2 Septic System Aban. Forgivable $962,621 (1) $106,185 N/A � Princi al Desi n 2.9%, 20- r $110,000 N/A $7,255 TOTAL $6,102,550 $671,925 $74,357 2 Notes: 1. Ecology transferred $320,379 from the Septic System Abandonment to Sewerage Project at the City's request. 2. 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SUBJECT: Amendment to Gold Mountain Committee Meeting Date: Dec. 9` 2009 Golf Club Greens Superintendent Agreement COi1NCIL MEETING Date: Dec. 16` , 2009 with Ed Faulk Operations LLC. Department: Parks and Recreation Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: The Professional Services Agreement with Ed Faulk Operations LLC, for Greens Superintendent Services at Gold Mountain Golf Club expires on December 31 S ` 2009. This amendment will extend the current agreement for one additional year to December 31 S ` 2010. The extension will allow the City and Ed Faulk Operations LLC time needed to assess the opportunity and circumstances presented by the recent refinancing of Gold Mountain debt from tax exempt to taxable. ATTACHMENTS: Amendrnent Current Greens Superintendent Agreement FISCAL IMPACTS (Include Budgeted Amount): Amendment is consistent with the amount bndgeted for Greens Superintendent Services in the 2010 Budget. APPROVALS: .._--- DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: , /a J' " . COMMITTEE CHAIR ��(� COUNCIL PRESIDENT: ` � CONSENT AGENDA � GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: I move to approve the amendment to the Gold Mountain Golf Club Greens Superintendent Agreement extending the agreemnent to Dec. 31 `� 2010 and authorize the Mayor to finalize and execute the agreement in substantially the same form as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑'Cable ❑ Continue ❑ No Action AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT Greens Superintendent WHEREAS, on December 12, 2007, the City of Bremerton, a municipal corporation of the State of Washington, "City" and Ed Faulk Operations, LLC., a Washington corporation, "Contractor" entered into and Agreement to provide greens maintenance and related services at the Gold Mountain Golf Club and WHEREAS, the term of the Professional Services Agreement commenced on January l, 2008 and shall terminate on December 31, 2009; and WHEREAS, the parties desire to amend the Agreement to extend the term through December 31, 2010; NOW THEREFORE, for mutual consideration, City and Contractor agree as follows: Section 2 of the Agreement is hereby amended to extend the termination date of the Professional Services Agreement to December 31, 2010. All other terms of the Agreement not specifically amended herein shall remain in full force and effect. CITY OF BREMERTON ED FAULK OPERATIONS, LLC. , Mayor By: Edward G. Faulk Its: � DATE: DATE: APPROVED AS TO FORM: ROGER LUBOVICH, City Attorney ATTEST: Carol Etgen, City Clerk R\Legal�Lrgal\FiIc,�Cwicnt Acirvc FiIcslGuld Mountain�Gicrns,uprnntcndcnt Agrecment Amcndmcnt (2009) doc .�l inendn�ent Professional Services Agree�nent — Greens Superinlendent PROFESSIONAL SERVICES AGREEMENT Greens Superintendent THIS AGREEMENT is between the CITY OF BREMERTON, a municipal corporation (hereinafter referred to as "City") and ED FAULK OPERATIONS, LLC., a Washington limited liability corporation, (hereinafter referred to as "Contractor ). WHEREAS, the City is the owner of Gold Mountain Golf Club, which ownership includes the land upon which said golf complex is located, the buildings and other improvements which are a part thereof; and WHEREAS, the Gold Mountain Golf Club consists of two 18 hole golf courses, the Olympic and the Cascade course, ("Golf Courses" or "Courses"), a driving range, the clubhouse and other related facilities and structures, collectively also referred to herein as ("Golf Club") WHEREAS, the City previously entered into an agreement with Ed Faulk, Contractor's principal ("Principal"), for greens maintenance and related services at the Golf Club; and WHEREAS, the current agreement between the City and Contractor for these services expires December 31, 2007; and - WHEREAS, the City desires to enter into a new agreement with Contractor for greens maintenance and related services at the Golf Club; NOW, THEREFORE, in considerarion of the mutual covenants contained herein, the parties agree as follows: 1• Scope of Work: The City hereby agrees to retain the Contractor to maintain and improve the Golf Club as follows: a• The Contractor shall maintain and improve the Golf Club grounds, to include clubhouse grounds and surrounding areas, which will meet or exceed the standard in the industry for public courses in the Puget Sound region, and as more thoroughly specified in Exhibit A. b• The Contractor shall devote its attention and energy on a full time basis to the performance of duties as Greens Superintendent for the City during the term of this agreement. Contractor and its employees shall conduct themselves at all times and in all matters in accordance with the standards accepted for Greens Superintendents. The Contractor's Principal is required to be a member of the Golf Superintendent's of America, the Western Washington Golf Course Superintendent's Association, and the Northwest Turf Grass Association. PROFESSIONAL SERVICES AGREEMENT - 1 Greens Superintendent I c. The Contractor shall report directly to the Director of Parks and Recreation or assigned designee ("Director") and work closely with the Golf Professionals who manage the golf operations of the Golf Club. The Contractor and Golf Professionals shall mutually agree upon the open and start of play daily, with the Director resolving any conflicts. In all instances, the start time will be set to maximize the Golf Club's availability to the public. d. The Contractor's Principal shall attend all meetings of the Gold Mountain Golf Complex Board of Directors. The Contractor may recommend and submit changes in policies and procedures to the Golf Complex Board at any regular meeting. e. The Contractor shall maintain a good credit rating in all commercial transactions so as to not discredit the reputation or name of the City of Bremerton. f. The Contractor shall supervise, direct, and train its staff to perform the duties and meet the requirements specified in Exhibit A. g. The Contractor's Principal agrees to be available to attend regulaz and special meetings of the Parks and Recreation Commission, and City Council, and shall be prepared to discuss issues and ideas of interest to the Contractor and City. h. The Contractor will comply with all auditing and accounting requirements set forth by the City. The Contractor's books and records will be open to inspection at any time during normal business hours. 2. Term: This Agreement will commence on January. 1, 2008 and terminate on December 31, 2009. 3. Performance: The Contractor shall supervise and direct the work as provided for in this Agreement, using its best skills and attention. From the perspective of grounds safety and turf condition, the Contractor shall have the sole authority to declare when the courses are open for golf play and when golf carts will be allowed on the courses. Any maintenance practices or renovation projects that would disrupt play will be mutually agreed upon by the Contractor, Golf Professionals and Director. The Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures for coordinating all portions of the work contemplated by this Agreement. 4. Compensation: The Contractor will be paid seven hundred seventy-one thousand two hundred sixty four dollars and NO/100 ($771,264.00) for the services described herein for 2008. For 2009, Contractor will be paid seven hundred seventy-eight thousand nine hundred seventy-six dollars and 64/100 ($778,976.64), a one percent (1%) increase from 2008. However, the Director is authorized, in his discretion, to negotiate a further increase in the compensation for 2009 by an additional amount not to exceed three percent (3%). The fiscal standing of the Golf Club at year end 2008 may influence this negotiation, notwithstanding the performance of the Contractor. Arulual compensation will be paid in 24 equal installments. These installments will be made twice monthly on a mutually agreed schedule. The parties PROFESSIONAL SERVICES AGREEMENT - 2 Greens Superintendent � acknowledge and agree that, except as otherwise provided for in this agreement, this compensation covers all the Contractor's costs of operations including: , a. Labor costs including, but not limited to, medical coverage for Contractor's employees, payroll, insurance, L&I, Board Expenses, dues, laundry, and travel. b. Taxes and fees including, but not limited to, retail sales, state and local B&O, federal income, social security, and unemployment, and c. Other costs and expenses related to Contractor's operations under this Agreement at the Golf Club. 5. Agreement Opener: In the event of extraordinary circumstances, such as major capital improvements to the facilities or a major tournament, requiring the Contractor to perform significant additional work, the parties may revisit the compensation set forth in Section 4 above and negotiate additional compensation for the additional work pursuant to a separate agreement or as an amendment to this Agreement. 6. Purchasing: All supplies, capital and equipment expenditures used by Contractor in the maintenance of the facilities such as fertilizers, small tools and parts for maintenance equipment, will be the responsibility of the Department of Parks and Recrearion. The Contractor agrees to coordinate all purchasing requests for such items through the Director. 7. Facilities and Equipment: The Contractor will have the use of the City's maintenance facilities at the Golf Club for the duration of this Agreement, at no cost to the Contractor. The Contractor agrees to keep the building in a clean and orderly condition throughout the term of this Agreement. The Contractor agrees to make necessary minor repairs to the maintenance building. In the event of major damage or deshvction to the maintenance building that is not the responsibility of the Contractor, the City agrees to repair or replace said building. Contractor will promptly notify Department of Parks and Recreation of any building defects. The Golf Club equipment including, but not limited to, the irrigation system, drainage, benches, trash receptacles, flag sticks, ball washers and maintenance equipment shall be provided by the City and be maintained in good working condition by the Contractor, and remains the property of the City. The Contractor agrees to maintain the irrigation system in good working condition. Repairs and maintenance of the pump station beyond the capabilities of the Contractor will be the responsibility of the City. , Unless specifically provided otherwise herein, all equipment for maintaining the Golf Club, as specified in this Agreement, shall be provided by the City. 8. Relationship of Parties: Contractor is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of PROFESSIONAL SERVICES AGREEMENT - 3 Greens Superintendent expertise. Contractor and its employees are independent contractors and not employees of the City. Contractor and its employees have no authority to bind the City or to control the City's employees and other contractors. It is agreed and understood that the Contractor shall be solely responsible for the hiring and firing of its employees. All employees retained by Contractor to perform services under this Agreement shall be employees of Contractor and not employees of the City. Contractor shall be responsible for payroll, payroll taxes, FICA, federal taxes, workers compensation, Labor & Industry, and medical insurance premiums and all other benefits associated with employment with Contractor. As an independent contractor, Contractor is responsible for its own management. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Contractor or its employees. 9. Insurance: Contractor agrees to purchase a policy of liability insurance which shall protect it and its employees from any loss caused by property damage or personal injury at the Golf Club. Said insurance policy shall be in the amount of One Million Dollars ($1,000,000.00) for each occunence. The Contractor agrees that said insurance shall name the City of Bremerton as an additional insured. A copy of the certificate shall be required to be kept on file with the City Risk Manager. � 10. Supervision: Contractor shall report directly to the Director and shall cooperate and work closely with the Golf Professionals. In those situations where conflict of interest arises, the situation will be brought immediately before the Director for resolution. 11. Liens and Insolvency: The Contractor shall not allow any property of the City to become encumbered with liens of any sort by reason of its action or omission. ' 12. Indemnity: The Contractor agrees to defend, indemnify and save harmless the City, its appointed and elected officers and employees, from and against any and all liability, loss, costs, damage and expense, including costs and attorney fees in defense thereof because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time 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 or in consequence of the performance of Contractor under this Agreement, whether such injuries to persons or damage to property is due to the act, omission or negligence of Contractor, its employees, subcontractors, agents, successors or assigns. This provision shall be inapplicable to the extent that th� City is judicially found solely negligent for such damage or injury. 13. Nondiscrimination: Contractor shall not discriminate in the employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, sexual orientation or disability, except employment actions based on a bona fide occupational qualification. PROFESSIONAL SERVICES AGREEMENT - 4 Greens Superintendent 14. Termination: This Agreement will terminate upon the happening of any of the following events: a• Upon its normal termination if not renewed. b• Upon the death of the Superintendent's Principal. c. The physical disability of the Superintendent's Principal which substantially prevents the Principal from performing his duties for a continuous period of one (1) month or for an aggregate of three (3) months during each calendar year. d• Principal's conviction of a gross misdemeanor or felony. e• Major damage or destruction of the Golf Club property, shuctures or equipment that is the subject of this Agreement, when the City decides not to rebuild, and that damage or destruction will prevent Contractor from substantially performing its obligations under this Agreement. f Continuing inattention or neglect of duties. g. Suspension of Principal from those associations listed under Subsection 1(b) for more than thirty (30) days. h• Substantial breach of any provision of this Agreement. In the event of termination of this Agreement by reason of Principal's death or disability, the Contractor shall be paid its compensation to and including the month of death, or in the event of disability, the Contractor shall be paid to the last day of the month in which termination occurs. 15. Breach and Cure: In the event that either party claims that the other party is in violation of subsection 14( fl(g) �d/or (h) of this Agreement, the party claiming the violation may give the other party a written notice of breach. The party in breach shall have thirty (30) days after notice within which to correct any activity or conduct claimed by the other to have constituted a breach of the Agreement. Upon mutual agreement, a conference may be called between the parties in which case every reasonable effort shall be made to reach an amicable solution. At said conference, either party shall be entitled to have representatives present. In the event that either party shall, within said thirty (30) day period, fail to either correct the activity claimed to constitute a substantial breach of this Agreement or notify the other party in writing of their denial of said substantial breach of this Agreement, then, in such event, this Agreement shall cease and terminate as of the expiration of the thirty (30) day period. PROFESSIONAL SERVICES AGREEMENT - 5 Greens Superintendent 16. Notice: Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and personally served or sent by registered or certified mail. In the case of the Contractor, it may be mailed to : PO Box 4130, Bremerton, Washington 98312, and in the case of the City: Bremerton City Clerk, 345 Sixth Street, Suite 600, Bremerton, Washington 98337. 17. Applicable Law: This Agreement shall be controlled by the laws of the State of Washington. Contractor shall perform and comply with all applicable laws of the Untied States and the State of Washington; the Charter, Municipal Code and Ordinances of the City of Bremerton; and rules, regulations, order and directives of their administrative agencies and the officers thereof. 18. Severability: The invalidity or unenforceability of any provision hereof shall, in no way, affect the validity or enforceability of any other provision. 19. Waiver: Failure to insist upon strict compliance with any terms, covenants or conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or relinquishment of such right or power at any time be taken to be a waiver of any other breach. 20. Modification: Any waiver, alteration or modification of any of the provisions of this Agreement or cancellation or replacement of this Agreement shall not be valid unless in writing and signed by the parties. 21. Entirety: This Agreement, including the exhibits attached hereto and forming a part hereof, are all of the covenants, promises, agreements and conditions, either oral or written, between the parties. 22. Remedies: Rights under this Agreement are cumulative; the failure to exercise on any occasion any right shall not operate to forfeit such right on another occasion. The use of one remedy shall not be taken to exclude or waive the right to use another. 23. Licenses and Fees: Contractor shall secure and maintain, in full force and effect during the term of this Agreement, all required licenses, permits and similaz legal authorizations and comply with all requirements thereof. Contractor is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, B&O, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional chazges arising &om the delinquency, from any payments due Contractor. 24. Use of Facilities and Equipment: The Contractor and its employees shall use the facilities herein described for those purposes and only for those purposes enumerated herein and other complex related maintenance items, and for no personal uses. PROFESSIONAL SERVICES AGREEMENT - 6 Greens Supermtendent 25. Fidelity Bond: Contractor shall enter into an honesty and fidelity bond in the sum of Ten Thousand Dollars ($10,000.00), naming the City as the insured thereunder. IN WITNESS WHEREOF the parties hereto have executed this Agreement the date and year indicated. ED FAULK OPERATIONS, LLC. Date� �— �� EDWARD G. FAUL Principal CITY REM /� � �a - 7 Date CARY B ZEMAN, Mayor APPROVED AS TO FORM: ROG A. LUBOVICH, City Att R:\LEGAL\Files\Current Active\Greena Superintendent Agreement 2007.doc PROFESSIONAL SERVICES AGREEMENT - 7 Greens Supenntendent EXHIBIT A — DUT[ES The City hereby agrees to retain the Contractor to maintain and improve the Gold Mountain Golf Complex courses, to include c(ubhouse �nounds and surrounding areas, and through Contractor's efforts will strive to have the condition of the Gold Mountain Golf Compiex in the best possible shape, subject to budgetary and environmental limitations within which the Contractor must perform this work. The Contractor does agree to conform to the generally accepted standards and practices of similar golf courses in the Western Washington region. MAINTENANCE STAIYDARDS: The following are the parameters of the maintenance practices and programs for the Cascade and Olympic courses: A. Maximum Mowing Heights Cuttine Hei t Setti� Summer Winter Tees 1 /2" 1 /2" Fairways 1 /2" 1 /2" Roughs 1-1 /4" �1-1 /4" Collars 1 /2" 1 /2" Greens .125" .150" B. Mowing Standards Frequencv Per Week Summer Winter Tees 2 As Needed To Eairways 3 Maintain Maximum Roughs 2 Mowing Heights Collars 3 Greens � C. Bunkers Raked Freauencv Per Week Summer Winter 3 As Needed D. Aerification Greens And Aprons• All greens aeritication will be coordinated with the pro staff to mitigate impact to tournaments and special events, and timed to maximize revenues. q Spring: Aerification will be performed with a minimum 5/8" hollow tines Fall: Airification will be perfortned with a minimum 5/8" hollow tines Tees. Fairwavs And Greens Surrounds• These areas will be aerified a minimum of once per year with 3/4" hollow tines. E. Capital Projects Capital projects that have been approved by the City that can be accomplished with the knowledge and skills of the Golf Complex maintenance staff but would require additional labor will be negotiated as a separate contract or an addendum to the current contract. Construction of new tees on Cascade Course will continue as manpower and conditions allow. Upgrading irrigation system on Cascade Course, i.e. new satellites and sprinkler heads will continue as budget allows. F. Regutar Maintenance Practices Light sand top-dressing of the greens will be done monthly during the growing season Cup location and tee markers will be changed daily during the growing season Fairway divots will be filled with sand and seed monthly Divots on tees will be filled with sand and seed daily Divots on driving range tee will be filled with sand and seed a minimum of 4 days per week Both courses will be kept free of storm blow-down and branches. Encroaching brush and Scotch Broom with be cut back yearly. Cart paths and bunkers will be edged a minimum of once per year. All restrooms will be cleaned and sanitized daily. Clubhouse lawns and landscaping will be maintained regularly. Parking lot and entry road will be kept clean and debris free. G. Equipment Maintenance Regularly scheduled maintenance will be performed on all equipment to minimize costly repairs and equipment down time All repairs and parts will be documented to help identify problem equipment and determine cost effectiveness of repair vs. replacement All cutting unit blades will be sharpened regularly to ensure a precise clean cut in order to keep the turf healthy and the playing surface smooth H. Irrigation The Contractor will maintain the irrigation system to the best of his abilities. The City will contract with an outside agent for preventive maintenance of the irrigation pump stations on both the Olympic course and the Cascade Course. The Contractor will work with the City's Water Resource Manager to coordinate water usage and water pressure concerns. I. Chemical Use The Contractor will work closely with the Water Resource Division of the City in the use of chemicals and their application at the Gold Mountain Golf Complex. A list of all pesticides and other chemicals must be maintained by the Contractor including the MSDS information sheets, dates and time applied, the person who applied the chemical and other information that may be reyuired by OSHA, WISHA, Department of Labor and Industry, EPA and any other city, county, state, or federal agency that would have enforcement authority. J. Fertilization The Contractor will set up a fertilization program for the Golf Complex and work closely with the Director of Parks and Recreation to determine a yearly budget for fertilizer. K. Tree Removal Hazardous trees will be removed by the Gold Mountain maintenance crew as required for safety. The Contractor will work with the City Forestry Manager for removal of any trees that are not related to safety. UA'I'E SUBMI'I'TED: December 2° 2009 AGENDA BILL �� CITY OF BREMERTON CITY COUNCIL .. ...................................................................................... SUBJECT: Amendment to Golf Committee Meeting Date: December 9` 2009 Management Agreement for Gold Mountain COUNCIL MEETING Date: December 16` , 2009 Golf Club with Scott Alexander's Golf Shop Department: Parks and Recreation Inc. Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: The City's Gold Mountain Golf Management Agreement with Scott Alexander's Golf Shop Inc. will expire on December 31 S ` 2009. This amendment will extend the current agreement for one additional year to Dec. 31 S ` 2010. The additional year will allow the parties to enter into negotiations to reach a longer term agreement reflective of the opportunities provided by the refinance of Gold Mountain's debt from tax exempt to taxable financing. ATTACHMENTS: Amendment Original Agreement FISCAL IMPACTS (Include Budgeted Amount): The amendment's fiscal impact is consistent with the amount budgeted for Golf Services in the 2010 Budget. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: " � � - MAYOR: . � COMMITTEE CHAIR COUNCIL PRESIDENT: `� CONSENT AGENDA � GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: I move to approve the amendment to the Gold Mountain Golf Club management agreement extending the term by one year to December 31'`, 2010 and authorize the Mayor to finalize and execute and the agreement in substantially the same form as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑"fable ❑ Continue ❑ No Action AMENDMENT TO GOLF MANAGEMENT AGREEMENT WHEREAS, on September 13, 2007, the City of Bremerton, a municipal corporation of the State of Washington, "City" and Scott Alexander's Golf Shop, Iac., a Washington corporation, "Contractor" entered into and Agreement to provide professional golf management and services at the City of Bremerton Gold Mountain Golf Club; and WHEREAS, the term of the Golf Management Agreement commenced on January 1, 2007 and shall terminate on December 31, 2009; and WHEREAS, the parties desire to amend the Agreement to extend the term through December 31, 2010; NOW THEREFORE, for mutual consideration, City and Contractor agree as follows: Section 3 of the Agreement is hereby amended to extend the ternunation date of the Golf Management Agreement to December 31, 2010. All other terms of the Agreement not specifically amended herein shall remain in full force and effect. CITY OF BREMERTON SCOTT ALEXANDER'S GOLF SHOP, INC. , Mayor By: SCOTT ALEXANDER Its: DATE: DATE: By: DARYL MATHENY Its: DATE: ATTEST: Carol Etgen, City Clerk APPROVED AS TO FORM: ROGER LUBOVICH, City Attorney R'Legal�,Legai\F�lec\Cw7ent Acuve Fiks�Gold Mowuam�Gnlf Management Agreement Amendment (2009) doc A�nendme�rt to Cnlf �Nai�a�emen� �I�reenienl GOLF MANAGEMENT AGREEMENT THIS AGREEMENT made and entered into on the date fully executed by and between the CITY OF BREMERTON, a municipal corporation of the State of Washington, hereinafter refened to as "City," and SCOTT ALEXANDER'S GOLF SHOP, INC., a Washington Corporation, hereinafter referred to as "Contractor," to provide professional golf management and services pursuant to this Agreement, at the City of Bremerton Gold Mountain Golf Club. WHEREAS, the City is the owner of Gold Mountain Golf Club, which ownership includes the land upon which said golf complex is located, the buildings and other improvements which are a part thereof; and WHEREAS, the Gold Mountain Golf Club consists of two 18 hole golf courses, the Olympic and the Cascade course, ("Golf Courses" or "Courses"), a driving range, and the clubhouse containing a Pro Shop, restaurant, meeting rooms and the Olympic room, ("Clubhouse'� and other related facilities and structures, collectively also referred to herein as ("Golf Club'� WHEREAS, the City previously entered into an agreement with Scott Alexander and Daryl Matheny, Contractor's principals ("Principals'�, for food, beverage, and golf management and related services at the Gold Mountain Golf Club; including, but not limited to, food and beverage service, management of the Cascade and Olympic golf courses and driving range, and for providing P.G.A. professional golf services and lessons to the facility; and WHEREAS, the agreement between the City and Contractor for these services expired December 31, 2006 which has twice been extended by amendments to said agreement pending negotiation of a new agreement; and WHEREAS, the extensions were executed with the understanding that new terms may be negotiated for a new agreement beginning with the year 200'7; and WHEREAS, the City desires to enter into a new agreement with Contractor for management of the Cascade and Olympic golf courses, Clubhouse, driving range and Pro Shop, and for providing professional golf services and lessons to the facility entitled "Golf "Management AgreemenY' effective January 1, 2007 and superseding the terms of the extended agreement; and WHEREAS, the parties hereto have simultaneously executed a separate agreement entitled "Food and Beverage Agreement" relating to the food and beverage service at the Gold Mountain Golf Club; and WHEREAS, the parties hereto have also simuItaneously executed a document entitled "Lease AgreemenY' relating to the lease to the Contractor of a certain portion of the Gold Golf Management Agreement Page 1 of 20 Mountain Golf Club (the "Lease") for operation of a Pro Shop, driving range and Contractor's private cart rental business. It is the intent of this Agreement to have the Contractor provide management services to the Gold Mountain Golf Club in accordance with the terms and conditions of this Agreement; and WHEREAS, it is the intent of this Agreement that the Contractor operate the facilities covered herein in such a manner as to generate and provide revenue at or above a level sufficient to meet bond payment obligations and operating expenses paid by the City for the Gold Mountain Golf Club. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: SECTION 1. PURPOSE AND ADMINISTRATION. A. The purpose of this Agreement is to establish a management services agreement whereby contractor will provide certain management and related services at City-owned golf facilities. This Agreement is not a lease, nor does it create a leasehold interest other than similar property interest in Contractor to the City's facilities. B. Contractor will be responsible for performing all work and/or services described herein. The Contractor's performance will be monitored and reviewed by the City of Bremerton Director of Parks and Recreation, or his or her designee, (hereinafter "Director"). Contractor shall report directly to the Director and work closely with the Greens Superintendent. Reports and data required to be provided by the Contractor shall be delivered to the Director. Questions . of the Contractor regarding interpretation of the terms, provisions and requirements of this Agreement shall be addressed to the Director for response. SECTION 2. PREMISES. The facilities of the Golf Club to be managed by the Contractor pursuant to this agreement include the Golf Courses, the Clubhouse and related facilities, hereinafter ("Premises"). SECTION 3. TERM. Pursuant to IRS Revenue Procedure 97-13, the term of this Agreement shall be three (3), years commencing on January 1, 2007 (the "Commencement Date") and shall terminate on December 31, 2009, unless terminated earlier in accordance with Section 14. SECTION 4. SCOPE OF SERVICES. A. General Services. The Contractor's responsibilities include promoting and managing the use of the Golf Courses; the collection of fees; staffing the courses, including starter services and marshals; management of the Clubhouse and areas of Contractor's responsibility at the driving range, except as otherwise agreed upon between the parties in writing. Golf Management Agreeine�:t Page 2 of 20 B. Specific Services. In providing the general services described above, Contractor shall provide not less than the following specific services: 1. Olympic and Cascade courses. a. Contractor shall provide an adequate number of starters, agreed upon by both parties, deemed necessary for the courses to facilitate a good golf operation. Contractor shall be responsible for all starting of golf play and for control of the first tee at all times. During peak play times for each season as identified herein, Contractor must provide a course marshal a minimum of 346 hours per week for the months of May through September, 148 hours per week for the months of March, April and November, and seven hours per week for the months of November and December. On days when the tee sheet is not full, Contractor may adjust this minimum downward to the extent start times aze not materially affected. In case of extended periods of inclement weather, this requirement can be waived by mutual agreement of the Director of Parks and Recreation and Contractor. In such case, the compensation will be adjusted accordingly upon mutual agreement. b. All counter staff at the courses shall be experienced, trained, and knowledgeable of golf operations and course rules. c. Contractor shall provide an adequate number, as agreed upon by both parties, of golf clubs, bags, and pull-carts for rent to users at the courses. d. Contractor shall operate and maintain a service for the handling, sales, and leasing of golf equipment and for leasing of carts for operation of the Golf Club operations. e. In cooperation with the Director and Golf Complex Boazd of Directors, established pursuant to Chapter 2.34 of the Bremerton Municipal Code (the "Golf Complex Boazd"), Contractor shall schedule a11 golf tournaments and shall initiate and promote golf activities at the Golf Club. f. The Contractor and Greens Superintendent shall mutually agree upon the open and start of play daily with the Director resolving any conflicts. 2. Driving Range and Pro Shop. a. The Contractor agrees to maintain and operate the driving range and Pro Shop in conjunction with the services provided in this agreement. The driving range and Pro shop shall be maintained and operated in accordance with the Lease between the City and Contractor for the facilities. 3. Lessons. a. The Contractor may provide competent golf instruction to all groups and levels of public players, including juniors. Qualified P.G.A. members or registered assistants must be available to conduct lessons. All revenues received and costs incurred by Contractor for lessons shall be revenue and costs of the Contractor. b. All lesson gross revenue shall be paid directly to the Contractor or subcontractor and shall not be included in the City's revenue receipts. ' 4. Gift Certificates. Contractor will sell gift certificates for merchandise, restaurant, green fees, and lessons. Sale of these certificates will be in accordance with internal � Golf Management Agreeme�:t Page 3 of 20 controls as approved by the City. Contractor shall maintain a log showing all ui�redeemed outstanding certificates. 5. Clubhouse Management. a. The Contractor shall manage the Clubhouse for the City. This shall include operating and maintaining the restaurant and lounge in accordance with the Food and Beverage Agreement between the City and Contractor. b. Contractor shall maintain the facilities in a clean, neat and hygienic condition. Contractor shall provide basic janitorial services, including supplies necessary to provide adequate janitorial services. These services shall include, but not be limited to: i. Cleaning all carpets annually, ii. Vacuuming floors at least daily during peak season, iii. Cleaning restrooms and all common areas at least daily, iv. Providing periodic spot checks of restrooms to replenish supplies and paper products and attend to problems as needed, and v. Clean windows and clean patios, sidewalks and other common areas as needed. c. The Contractor shall maintain the Clubhouse, and exterior patios, including garbage containers around Clubhouse buildings and entryways, in a clean, well kept, orderly manner to the satisfaction of the City. Contractor shall conduct minor maintenance and repairs to interior facilities and fixtures, including lights, plumbing, and locks associated with Contractor's area of responsibility. d. The Contractor shall provide maintenance and repair services for all FF&E within the Clubhouse, Contractor owned tools and equipment, and all Contractor leased equipment. Replacement of City owned equipment shall be in the sole discretion of the City and the City shall arrange for equipment replacement in accordance with available funding. e. Contractor shall be responsible for the costs of supplies for operations at its cost and expense. 6. Advertising. a. The Contractor shall annually provide to the Director for approval an advertising and promotion plan for the Golf Club, which approval shall not be unreasonably withheld. Contractor shall spend a minimum of $35,000 per year for advertising for the Golf Club operations. b. Contractor shall obtain City approval for all advertisement for commercial vendors unrelated to concession operation on score cards, benches, entryways, etc. Contractor agrees to honor contracts with existing advertising vendors until said contracts expire. 7. Attend Meetings. Contractor agrees to be available to attend regular and special meetings of the Golf Complex Board, Parks and Recreation Commission and City Council, and shall be prepared to discuss issues and ideas of interest to the Contractor and City. C. Pricing of Golf Services. 1. Green fees are established by City Council following a review and recommendation of the Golf Complex Board. The City reserves the right to establish fees for residents, residential preferential programs, and events sponsored by local businesses and organizations, as well as non-resident fees. Fee adjustments must be approved by the City Golf Managen:e�:t Agreement Page 4 of 20 Council except that the Director may establish discount rates for promotional purposes. Contractor, as an ex-officio member of the Golf Complex Board, shall have input on pricing of golf services. 2. All tournament fees will be set by the Contractor subject to review and final approval of tlie Director. SECTION 5. OTHER DUTIES AND RESPONSIBILITIES. A. Performance of Duties. The Contractor shall devote their attention and energies to the performance of duties as golf Contractor for the City during the term of this Agreement. They shall conduct themselves at all times and in all matters in accordance with the standards accepted for golf Contractor as established by the Professional Golfers Association (hereinafter "PGA"). The Contractor shall operate the facilities and programs under their direction and control so that they will meet or exceed the standard in the industry for public golf courses in the Puget Sound region. B. Personnel. The Contractor shall provide competent personnel necessazy for such operations and shall train and supervise them in their work and shall pay them for their services at the Contractor's sole cost and expense. Contractor shall supervise, direct and train staff to perform duties and meet requirements for sales, rentals and services which are, in the opinion of the City and Contractor, necessary. Contractor shall provide an on-going staff training program with emphasis on customer training. There will be a minimum of two PGA professionals on staff including the Principals of Contractor. At least one of the PGA professionals must be on site daily during peak business hours of the Golf Club. C. Credit Rating. Contractor shall maintain a good credit rating in all commercial transactions so as not to discredit trie reputation or name of the City of Bremerton. D. Tournament Play. The Contractor shall have the right and are expected to represent the City of Bremerton in various golf tournaments. They shall submit their tournament schedule for information to the Director. In the event they qualify, they shall have the right to play in the U.S. Open, Masters, the PGA National Championship, and the Club Contractor's Championship, or any tour event held locally. E. Security. The City has installed a monitored burglar alarm system at the Clubhouse and Pro Shop, and the City will pay the monthly service charge for the system. Contractor is responsible for setting the alarm, insuring that it is properly operating and notifying the City if it is in need of repair. F. Inspections. The Contractor will make a daily physical inspection of the complex and report any unusual or unsafe conditions observed during said inspection to the Director immediately. Such reports shall be followed up in writing. Golf �Llanagement Agreement Page 5 of 20 G. Quarterly Review. Contractor and City shall meet on a quarterly schedule, or as otherwise as mutually agreed, to evaluate operations at the Golf Club and the performance of the parties pursuant to this agreement and to make mutually agreeable changes. SECTION 6. OPERATING POLICIES AND PROCEDURES. The Contractor will: A. Operate the Golf Club pursuant to the rules and regulations established by the City Council and the Director. B. Expel unruly persons or those under the influence of intoxicants from the Premises under Contractor's control. C. Not foster nor permit any illegal activity on the Premises under Contractor's control. D. Answer and handle all complaints and shall supervise a public relations program. In dealing with the public, Contractor will not speak towazd City policies or decisions in a derogatory manner. Contractor shall explain and support city policies to staff and the golfing public. E. Not use the Premises for ancillary, revenue-producing activities, or social activities uriless expressly authorized by the City. The parties acknowledge that Contractor conducts certain private business operations pursuant to the Lease executed with the City for operation of a Pro Shop, driving range and Contractor's private cart rental business and further that Contractor subcontracts lessons at the Golf Club. F. Regulate the play and conduct of all persons on the golf course, including keeping off trespassers and preventing injury to the golf course by players and others. G. Not allow any person to be afforded free use of the golf course unless approved by the Director. H. Supervise all golf activities in connection with outside parties and shall provide members of the golfing public with adequate services, as may be required. I. Provide service to meet public demand and shall keep the Clubhouse open each day that the golf courses are open for play, and at other reasonable hours as prescribed by the City, except Thanksgiving and Christmas, at Contractors option, days the Greens Superintendent closes the course due to inclement weather and except as set forth in Section 7(D) and (E). SECTION 7. COMPENSATION. ° A. Contractor shall be compensated for services as follows: l. Course and Facility Management Fee. Golf Managenient Agreement Page 6 of 20 a. Fixed Fee - Year 2007. Contractor shall be paid the annual sum of three hc�ndred fifty-five ti�ousand eight hundred fifty dollars ($355,850). This fixed fee compensation shall be paid in weekly installments of $6,843.27 or as otherwise agreed. b. Fixed Fee - Years 2008 and 2009. Contractor shall be paid the annual sum of three hundred eighty-five thousand eight hundred fifty dollars ($385,850). This fixed fee compensation shall be paid in weekly installments of $7,420.19 or as otherwise agreed. c. Percentage (Greens) Fee. In addition, throughout the term of this contract, Contractor shall be paid ten percent (10%) of revenues received &om greens fees, net of sales tax, in excess of $2,000,000.00 but in no event shall this percentage fee exceed the fixed fee in any given yeaz set forth in this section. For purposes of this subsection, greens fees include daily private cart fees and all other course activities not otherwise provided for in this section, Section 7, for which revenue is received for use of the course, whether golf related or not. This percentage fee shall be paid after the end of each year. 2. Golf Rounds. For each yeaz of this agreement, Contractor shall be paid additional compensation for customer paid golf rounds that are sold above the prior yeaz's golf round sales as follows: Rounds Compensation 1000-1500 $3,000.00 1501-2000 $5,000.00 2001-2500 $7,500.00 2501-3000 $15,000.00 3001 and above $18,000.00 For purposes of determining compensation for golf rounds for the first year of this agreement, it is acknowledged that the prior year's (2006) golf rounds were 90,509. Payment of this compensation will be made at the end of the year. 3. Final reconciliation. Final reconciliation and payment for each year will be made by January 31 of the following year. B. Billing and Payment Procedures. The City shall pay the amounts due to Contractor as set forth in Section 7(A). Appropriate reconciliation payments for the costs and expenses incurred by the City (i.e. credit cazd fees) in the current month for which the Contractor is obligated to pay under the terms of the agreement, shall be included in the reconciliation adjustments and will be deducted from the City's payment in the following month. C. Withholding of Payments to Contractor. In the event the Contractor is 60 days or later in payment of lease payments associated with the Lease, City may withhold and apply all monies due to Contractor from City under this Agreement to offset any such amounts due to City from Contractor under said Lease. D. Gotf Course Closure — For Conditions and Repair. The golf course facilities shall remain open for play unless they are closed as a result of causes beyond the control, fault, or negligence of the parties. Such causes may include, without limitation, acts of God or public Golf Ma»agement Agreement Page 7 of 20 enemy; acts of the federal, state, or ]ocal governments; fires; floods; epidemics; volcanic eruptions; quarantine restrictions; strikes; freight embargoes; court orders; and unusually severe weather or other condition that causes all or a portion of the Golf Club facilities to be closed for extended periods of time. Should either the City or the Contractor fail to perform because of a cause described in this subsection, the City and the Contractor shall make a mutually acceptable revision in the SCOPE OF SERVICES and COMPENSATION provided for in this Agreement, including termination of the Agreement if the Golf Club is deemed unusable by the City as a result of major damage or destruction and the City elects not to rebuild the same. In the event that City determines that it is necessary to close all or a portion of the golf Club facilities due to regular maintenance, repair, capital improvements, inclement weather, or similar condition which results in a situation where the golf course is unsatisfactory for play, or if damage to the course and facilities is likely if it remained open, the City shall coordinate such closing with the Contractor prior to actual closing. Contractor shall comply with the Director's decision to close all or part of the course and facilities at no cost to the City. In the event of closure of all or a portion of the Golf Club facilities as set forth in this subsection, Contractor shall not be entitled to any compensation pursuant to this section, Section 7, whether fixed fee or percentage fee, however, when feasible, the City and Contractor shall revise the SCOPE OF SERVICES and COMPENSATION as noted above for partial closure of the Golf Club, unless this agreement is terminated pursuant to Section 14(F). The City shall incur no liability to Contractor for lost revenue or other additional compensation as a result of any closure of all or a portion of the golf Club facilities as set forth in this subsection. E. Golf Course Closure — For Events. In the event circumstances require the closure of the course or portions thereof for events that may result in the loss of greens fees, the Director may approve, in advance of the closure and in writing, an amount representing potential greens fees lost as a consequence of the course closure. This amount shall be used to determine what amount, if any, shall be paid to the Contractor pursuant to this section. Any amount pursuant to this section will be included in the Final reconciliation and payment as provided in this section. SECTION 8. CITY RESPONSIBILITIES. A. Golf Course grounds. 1. The City shall maintain and repair all turf and landscaped areas adjacent to the tees, greens, fairways, driving range, parking lot and the Golf Course buildings. 2. The City shall maintain and repair all building exteriors, parking lots, pathways and all of their fixed components, including structural maintenance of buildings, heating and cooling units, doors and windows, locks associated with City's area of responsibility, and lighting systems. 3. The services provided in (1) and (2) above sha11 be in the manner and to the extent previously provided and within defined annual budgets. Golf Manageme�:t Agreemei:t Page 8 of 20 B. Utilities. All electric power, water, sewer, gas/propane, street utility, garbage and telephone service related to this agreement shall be paid by the City. If upon review the City determines that action is needed to address excessive consumption, Contractor wilI promptly respond and take appropriate action to remedy the excessive consumption. Each party shall pay internet and web page costs and expenses related to their duties and responsibilities under this Agreement, unless otherwise agreed. SECTION 9. CAPITAL IMPROVEMENTS AND FIXTURES. Contractor shall not make any alterations, additions or improvements in the Gold Mountain Golf Club, including the Clubhouse, without first obtaining the consent of City in writing, which consent can be withheld at City's sole discretion. All alterations, additions and improvements, shall be at the sole cost and expense of Contractor, and shall remain in and be surrendered with the Clubhouse as a part thereof at the termination of this Agreement except for those improvements and fixtures supplied by the Contractor which at the time of this Agreement are identified on the attached Exhibit A. If Contractor performs work with the consent of City, as provided above, Contractor agrees to comply with all laws, ordinances, rules and regulations of the City and any other authorized public authority. Contractor further agrees that workmanship will be of a reasonable commercial quality, in color schemes in accordance with current building, standards, and free of inechanics liens. Contractor further agrees to save City free and harmless from damage, loss or expense arising out of such work. SECTION 10. COLLECTION OF FEES, FINANCIAL REPORTING, AUDITING AND TAXES. Pursuant to the Golf Club Revenue Bond resolutions, the City irrevocably pledged gross revenues from the Golf Club as security for bond repayment. Therefore, all gross revenues from any source shall first be deposited in the City's bank account and disbursed pursuant to this Agreement. A. Point of Sale System. City shall be responsible for purchasing, setting up and maintaining a point of sale system through which all transactions at the Golf Club will be processed. 1. City's Responsibilities. The City sha11 provide a cashiering system for use by the Contractor. City shall provide initial training on the operations of the cashiering system. All subsequent training of Contractor's staff shall be the responsibility of the Contractor. The City shall also be responsible for maintenance of network, wiring, software, and equipment. The City will provide repair parts as needed for equipment. 2. Contractor's Responsibilities. Contractor shall be responsible for any additional hardware, user licenses, and software that Contractor chooses to install. The Contractor shall also be responsible for operating supplies such as receipt paper, toner, and labels. Contractor shall provide additional formal training for Contractor's employees after initial training sessions have been performed by the City. New cashier employees and office managers •must have suitable knowledge of the Golf cashiering system in order to perform their duties in an efficient and accurate manner. This training may be provided by Contractor personnel. Golf Mai:agement Agreeine�:t � Page 9 of 20 3. Modifications. Any other changes, additions, or modifications appl�cable to the City owned cashiering system would need mutual agreement as to payment responsibility. B. Receipting. Contractor and/or subcontractor shall collect for, and on behalf of, the City all �ross revenue, including but not limited to golf course greens fees, driving range fees collected under the Lease, golf club and cart rentals, golf course tournament fees, non-sufficient fund check retum fees, and all other fees at the Golf Club in strict accordance with the schedule of fees established by the City, unless other instructions aze given in writing to the Contractor. Netting of transactions is prohibited. All revenue collected from transactions under this agreement, with the exception of lessons, must be processed through the Point of Sale System and deposited as provided in subsection 10(C). Contractor may process lesson revenue through the Point of Sale System in which case the revenue must be receipted and deposited as provided in subsection 10(C) and thereafter reconciled and paid to Contractor as appropriate. All course gross revenue must be recorded, collected and deposited in a manner which will dispense a dated receipt to be given to each customer. C. Deposits. All deposits must be prepared in a timely manner defined as %z hour ahead of scheduled pick-up and composition of deposit shall remain intact and a clear audit trail maintained. The City will provide and pay for courier service. Any delays causing additional "premise charges" will be paid by Contractor. All deposits will be made into a single account established for the Golf Club. Settlements and appropriate disbursements will be made from this account. Contractor shall be responsible for any loss or theft of City funds while the same are in its possession or control. Contractor shall provide City with a fidelity bond and a performance bond as required in this Agreement. Contractor and any subcontractor shall comply with accounting procedures as may be required by the City to comply with state laws, regulations and audit review requirements. � D. Reports. Contractor shall provide to the City daily reports of golf activity and receipts in a format to be provided by the Director and Finance Officer, and shall structure their accounting system in a method satisfactory and acceptable to the City. The reports will be forwarded to the Director and must be received by the 2nd business day following the day of activity, excluding Fridays, Saturdays and Sundays which will be due on Tuesdays. The reports must agree with the corresponding deposit for the day. In addition, the Contractor shall submit a copy of its previous year's operating statement by March 31 to demonstrate Contractor's financial ability to maintain operations under this Agreement. E. Audits. All revenue and fees collected at the Golf Club are City revenues and subject to audit by the State Auditor, City Internal Auditor, or City hired Certified Public Accountants. Contractor shall permit the City, from time to time as the City deems necessary, through its designated representatives, to inspect and audit in Bremerton, Washington, at any reasonable time, all pertinent books and records of Contractor and any other person or entity that has performed work in connection with or related to Contractor's services under this Agreement to verify the accuracy of accounting records and shall supply the City with, or shall permit the City to make a copy of any books and records and any portion thereof, upon the City's request. Golf Ma�:ageme�:t Agreement Page 10 of 20 Contractor shall ensure that such inspection, audit and copying right of the City is a condition of any contract, agreement or other arrangement under which any other person or entity is permitted to perform work in connection with or related to Contractor's services under this Agreement. The Contractor shall take immediate corrective action on all prior, current or future intemal control weaknesses as directed by the City. F. Taxes. Pursuant to the City's bond resolutions on the Golf Club facilities, the Contractor will remit to the City all gross revenues collected. Sales tax from Contractor's activities remitted to the City will be held by the City and will be returned to the Contractor weekly or as otherwise agreed. City shall retain and remit sales taxes on revenues from green fees sales. As an independent contractor, the Contractor acknowledges that it is responsible for payment of any local, state, including business and occupation tax, or federal taxes or fees with respect to the Contractor's business, including sales tax, for its activities. The Contractor shall pay any and all applicable taxes when due. G. Credit Card Costs and Fees. Contractor shall be responsible for all credit card costs and related fees incurred for Contractor's business pursuant to this agreement (ie. lessons) and the City shall be responsible for credit card costs and related fees incurred for the City's business pursuant to this agreement (ie. greens fees). SECTION 11. MAINTENANCE OF RECORDS. The Contractor shall keep and maintain on a current basis all books and records, including the operating accounts, to support its management and operations of the Premises under this Agreement. The City or its authorized representative shall have the authority to inspect, audit, and copy, upon reasonable notice and from time to time, any records of the Contractor regazding its billings, payments or work under this Agreement. Contractor shall retain these records for inspection, audit, and copying for at least three (3) years from the date of completion or termination of this Agreement, or as otherwise required by the Washington Secretary of State General Records Retention Schedule for all Local Government Agencies in Washington State. Contractor shall, at all times, provide the City with all records for the prior three (3) yeazs that relate to the financial matters of the Premises managed by Contractor under this Agreement. SECTION 12. AUDIT OF PAYMENTS. The City, either directly or through a designated representative, may audit the records of the Contractor at any time during the three (3) year period established by Section 11, MAINTENANCE OF RECORDS. If an audit discloses that payments to the Contractor under Section 7, COMPENSATION, were in excess of the amount to which the Contractor was entitled, or that the payments to the City were less than the amount to which the City was entitled, then Contractor shall repay the amount of the excess or deficiency to the City. If an audit discloses that payments to the City under Section 7, COMPENSATION, were in excess of the amount to which the City was entitled, or that • payments to the Contractor were less than the amount to which the Contractor was entitled, then the City shall repay the amount of the excess or deficiency to the Contractor. Golf Management Agreement - Page 11 of 20 SECTION 13. ASSIGNMENT. Contractor shall not either voluntarily or by operation of law assign, transfer, mortgage, p(edge, hypothecate, or encumber this contract or any interest therein and shall not subcontract the obligations under this Agreement, or any part thereof, or allow any person (employees, agents, servants, and invitees of Contractor excepted) to use the Golf Club Facilities, or any portion thereof, without the prior written consent of the City. Any such assignment, subcontracting or use without compliance with the terms of this paragraph shall be void and shall constitute a default under the terms of this Contract. If Contractor is a corporation, any transfer of this Contract from Contractor by merger, consolidation, or liquidation, or any change in the ownership or power to vote in a majority of the outstanding voting stock of Contractor shall constitute an assignment for purposes of this paragraph. Any consent to one assignment, subcontracting, or use by any other person shall not be deemed to be a consent to any subsequent assignment, subcontracting, or use by another person. Consent to any such assignment, subcontracting or use shall in no way relieve Contractor of any liability under this Agreement. Assignment by Contractor to a financial institution holding a security interest in this Agreement shall not be considered to be a violation of the consent requirements of this Agreement. Consent for any subsequent assignments by said financial institution will not be unreasonably withheld; however, any assignee must have experience and be knowledgeable in golf and food and beverage operations. SECTION 14. TERMINATION. This Contract will terminate upon the happening of any of the following events: A. Upon its normal termination if not renewed. B. Upon temunation of the Lease and/or Food and Beverage Agreement. C. Upon the death of both of Contractor's Principals. D• By mutual written agreement. E. Breach of this Agreement as set forth in Section 15 below. F. Major damage or destruction of the golf Club property, structures or equipment that is the subject of this Agreement, when the City decides not to rebuild, and that damage or destruction will prevent Contractor from substantially performing their obligation under this Agreement. SECTION 15. BREACH. A. In the event that either party claims that the other is in a substantial breach of any of the provisions of this Contract, notice of the breach shall be submitted to the party alleged to be in breach and the party in breach shall have thirty (30) days from receipt of the notice within which to conect any activity or conduct claimed by the other to have constituted a substantial Colf Management Agreement Page 12 of 20 breach of this Contract. The notice shail identify the nature of the breach and the contract provisions violated. B. In the event that the party in breach shall fail to correct the activity claimed to constitute a substantial breach of this Contract within thirty days of receipt of the notice of breach, the party claiming breach may: 1. Issue a notice of termination; and/or 2. Seek judicial remedy or specific performance; and/or 3. Pursue any other remedy available at law or equity. C. The Contractor is subject to immediate termination upon written notice by City if 1. Contractor violates any fiduciary duty to the City by misappropriating or not properly accounting for or mishandling City funds as determined by the City or Washington State Auditor; or 2. Contractor vacates or abandons the Golf Club facilities under Contractor's responsibility. D. Upon receipt of notice of termination by Contractor, which is issued by the City, the City shall have the right to: 1. Enter and take possession of the facilities; and/or 2. Bring suit for and collect all fees and portions of gross revenue or any other monies required to be paid to the City which shall have accrued to the time of termination of the Contractor's rights. E. Upon written notice of termination by the City, Contractor will have thirty (30) days to vacate the Premises unless the City elects to take immediate possession as set forth in paragraph D above. Termination shall be affected by serving a Notice of Termination by certified mail (return receipt requested) or by personal delivery upon the Contractor setting forth the manner in which the Contractor is in default. F. Neither the City nor the Contractor shall have breached this Contract by reason of the closing of all or a portion of the golf course facilities as set forth in Section 7(D) and (E). G. Examples of a breach by the Contractor which warrants termination, if not cured, shall include but not be limited to: . 1. Misappropriation or mishandling of City funds. 2. Contractor makes any general assignment or general arrangement for the benefit of creditors or the filing by or against Contractor of a petition to have Contractor adjudicated as bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Contractor, the same is dismissed within sixty (60) days or the appointment of a trustee or a receiver to take possession of substantially all of Contractor's assets located at the Premises or of Contractor's interest in this Agreement, where possession is not restored to Contractor within thirty (30) days or the attachment, execution, or other judicial seizure of substantially all of Contractor's assets located Golf Management Agreement Page 13 of 20 at the Premises or of Contractor's interest in this Agreement where such seizure is not discharged within thirty (30) days. 3. Contractor assigns all or part of its interest in this Agreement without prior written consent of the City pursuant to Section 13. 4. Nonpayment of outstanding current liabilities within ninety (90) days and failure to pay Federal, State, and local taxes and license fees when due. 5. Continuing inattention or neglect of duties. 6. Suspension &om the PGA resulting in a situation where neither principal is a member of the PGA for more than thirty (30) days. 7. Conviction of a felony or conviction of a non-felony crime of dishonesty, theft or deceit of either of the Principals. SECTION 16. PURCHASE OF CONTRACTORS MERCHANDISE. In the event the City takes over management of the Golf Club facilities, after expiration of this Agreement or earlier termination by the City, Contractor reserves the right, if it so elects at its discretion, to require City to purchase the Contractor's Pro shop and driving range merchandise and moveable fumishings identified in Exhibit A at Contractor's cost less depreciation mutually agreed upon. If there is no agreement, this amount shall be established by a mutually agreed upon independent appraiser. The City shall make payment within 90 days of expiration or termination, less any monies owing to the City under the terms of this Agreement, the Food and Beverage Agreement or under the terms of the Lease. Should Contractors simply abandon any items set forth above, they shall immediately become the property of the City. SECTION 17. INDEPENDENT CONTRACTOR A. The Contractor is engaged as an independent contractor and will be responsible for any federal, state, and local taxes and fees applicable to payments hereunder. B. The Contractor, its subcontractors, and their employees, aze not employees of the City and aze not eligible for any benefits through the City, including without limitation federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits. C. The parties agree and acknowledge that the Contractor is an independent contractor and not the agent or employee of the City of Bremerton, and that no liability shall attach to the City as a result of the acts or omissions of the Contractor, its agents or employees. D. The Contractor shall be responsible for withholding and paying all payroll taxes for any person hired by them to perform the duties they are required to perform under the terms of this agreement. They are also responsible for all taxes owed to any govemmental agency as a result of the monies paid to them under the terms of this Agreement. Golf Management Agreen:ent Page 14 of 20 SECTION 18. INDEMNIFICATION, INSURANCE, BOND. A. Indemnification. 1. Contractor agrees to defend, indemnify and save harmless the City, its appointed and elected officers, employees and volunteers, from and against any and all liability, loss, cost, damage and expenses, including costs and attorney fees in defense thereof because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time resulting there from, 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 or in consequence of or the performance of this Agreement, whether such injuries to persons or damage to property is due to the willful or negligent acts or omissions of Contractor, their subcontractors or agents. This provision shall be inapplicable to the extent the City is judicially found solely negligent for such damage or injury. 2. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. B. Insurance Requirements. 1. The Contractor shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. 2. The Contractor shall provide a Certificate of Insurance evidencing: � a. Automobile Liability Insurance with no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and b. Commercial General Liability Insurance written on an occurrence bases with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury, and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property damage; liquor liability, and employer's liability. 3. Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor. 4. The City, including its officials, employees, and volunteers, shall be named as an additional insured on the insurance policy, with respect to work performed by, or on behalf of, the Contractor and a copy of the endorsement naming the City as additional insured, approved by the City's Risk Manager, shall be attached to the Certificate of Insurance. 5. The Contractor's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. ° 6. The Contractor's insurance shall be the primary and non-contributing insurance with respect to the City's insurance and the City shall be given thirty (30) days prior written notice of any cancellation, suspension or material change in coverage. Golf Management Agreen:ent Page 15 of 20 7. Acceptability of Insurers. Insurance is to be placed with an insurer with a Bests' rating of no less than A:XIII, or with an insurer acceptable to the City. 8. Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. C. Bond. The Contractor shall continuously maintain at its expense an employee dishonesty bond covering collection of fees on the Premises for the benefit of the City. The bond shall be in an amount not less than SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00). The Contractor must additionally provide broad form money and securities coverage both inside and outside the Premises in an amount not less than FNE THOUSAND AND NO/100 DOLLA.RS ($5,000.00). D. Proof of Insurance. Proof of the above requirements must be provided to the City upon execution of this Agreement. The policies required herein shall provide not less than thirty (30) days prior written notice to the City of any cancellation, expiration, modification, or reduction in coverage or liability limits. SECTION 19. SUBCONTRACTING. The Contractor shall not subcontract its work under this Agreement, in whole or in part, without the written approval of the City. The City reserves the right to review and approve any subcontracts prior to execution to ensure compliance with the provisions of this Agreement. The Contractor shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all terms and conditions as specified in this Agreement. Notwithstanding City approval of a subcontractor, the Contractor shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to the Contractor hereunder. Any subcontracts approved by the City shall be subject to and shall not extend any rights granted beyond those set forth in this Agreement to Contractor. Contractor agrees that if subcontractors aze employed in the performance of this Agreement, Contractor and its subcontractors are subject to the requirements of the State of Washington, Workers' Compensation Laws. SECTION 20. CONDITION OF PREMISES. The Contractor has inspected and examined the Premises and all facilities and fixtures thereon and accepts the same in its present condition. The Contractor shall not make any alterations, changes, or additions to the Clubhouse or to any fixtures or equipment owned by the City without the written consent of the Director. The Contractor shall not commit, permit, or allow any nuisance, waste, or injury in, upon, or to the golf course, or to permit the use of the golf course for any illegal or immoral purpose. SECTION 21. NOTICE. Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving party hereafter shall specify in writing: Golf llla�:agement Agree�nent Page 16 of 20 City: Director of Parks and Recreation City of Bremerton 345 6th Street, Suite 600 Bremerton, Washington 98337 Contractor: SECTION 22. PAYMENTS TO VENDORS AND SUBCONTRACTORS. The Contractor shall pay timely all suppliers, lessors, and contractors providing services, materials or equipment for canying out its obligations under this Agreement. The Contractor shall not take or fail to take any action in a manner that causes the City or any materials that the Contractor provides hereunder to be subject to any claim or lien of any person without the City's prior written consent. SECTION 23. BUSINESS LICENSE. Contractor shall obtain a City of Bremerton business license as required by Chapter 5.02 of the Bremerton City Code prior to beginning work under this Agreement. SECTION 24. CONFIDENTIALITY OF RECORDS. The City will, to the extent allowed by law, keep all of Contractor's and subcontractor's financial cost information confidential, unless required to disclose the information as a result of the Washington Public Records Disclosure law, Ch. 42.56 RCW or by court order. SECTION 25. PRIOR CONTRACT EXTENSIONS SUPERSEDED AND TERMINATED. The prior agreement between the City and Contractor for these services had an expiration date of December 31, 2006 which has twice been extended pending negotiation of this agreement. The extensions were executed with the understanding that new terms may be negotiated for a new agreement beginning with the year 2007. Accordingly, this Agreement supersedes the terms and conditions of the fourth amendment extending the 2006 agreement executed on January 18, 2007 and the fifth amendment extending the 2006 agreement executed on or about April 2, 2007 to the extent this Agreement is inconsistent with the prior agreement and amendments and upon execution of this Agreement, said agreement and amendments shall terminate. SECTION 26. OTHER. A. Costs and Attorney Fees: If, by reason of any default or breach on the part of either party in the performance of any of the provisions of this Agreement, a legal action is instituted, the losing party agrees to pay all reasonable costs and attorney fees in connection therewith. It is agreed that the venue of any legal action brought under the terms of this Agreement shall be in Kitsap County. Golf Manageinent Agreefnent Page 17 of 20 B. Construction. This Agreement shall be construed in accordance with the laws of the State of Washington. The provisions of this Agreement have been negotiated by the parties, and when interpreting the provisions of this Agreement, there shall be no presumption of draftsmanship for or against either party. C. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. D. Waiver. Failure to insist upon strict compliance with any terms, covenants or conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or relinquishment of such right or power at any time be taken to be a waiver of any other breach. The City and the Contractor shall not be deemed to have waived any breach of this Agreement by the other party except by an express waiver in writing. An express written waiver as to one breach shall not be deemed a waiver of any other breach not expressly identified, even though the other breach is of the same nature as that waived. E. Amendment. The City and the Contractor may amend this Agreement at any time only by written amendment executed by the City and the Contractor. The City and the Contractor agree that this Agreement shall be amended at any time if, in the opinion of bond counsel to the City, such amendment is necessary to preserve the tax exempt status of interest on obligations of the City issued to finance the Golf Club. F. Entire Agreement. This Agreement contains the entire agreement between the parties with regards to the subject matter set forth herein. There are no other representations with regards to the subject matter, either orally or in writing. From January 1, 2007 until . execution of this agreement, this agreemenf supersedes the prior agreement between the City and Contractor for these services which had an expiration date of December 31, 2006 and which has twice been extended by amendments on January 18, 2007 and on or about April 2, 2007 pending negotiation of a new agreement. Upon and following the execution of this Agreement, this agreement will replace the prior agreement in its entirety. G. Nondiscrimination. Contractor sha11 not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, physical, mental or sensory disability except in an employment action based on a bona fide occupational qualification. H. Liens. The Contractor agrees that it shall pay, or cause to be paid, all costs and expenses for work done and materials delivered to the Premises and shall keep the Premises free and clear of all liens for work performed thereon. I. Remedies. Rights under this Agreement are cumulative; the failure to exercise on any occasion any right shall not operate to forfeit such right on another occasion. The use of one remedy shall not be taken to exclude or waive the right to use another. Golf Management Agreement Page 18 of 20 J. Washington law and Forum. This Agreement shall be construed according to the law of the State of Washington. Any litigation between the City and the Contractor arising under this Agreement or out� of work performed under this Agreement shall occur, if in the state courts, in the Kitsap County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the Western District of Washington. CI B N SCO T ALEXANDER'S GOLF SHOP, INC. � CARY BOZEMAN, Mayor By: S OTT ALEXANDER Its: M£S' 4 K�''T DATE: �" �� DATE: Q IL o7 By: DARYL M T ENY Its: DATE: `� I �� 4 0 � ATTEST: Paula Johnston, City Cler APPROVED AS TO FORM: R ER L OVICH, City Attome Golf Management Agreen:ent Page 19 of 20 EXHIBIT A Pro Shop Moveable Furnishin�s 1 Slotwall 2 Driver Racks 3 Putter Racks 6 Clothes Racks 2 Full Set Racks 1 4-Set Rack 1 Nesting Table 1 TV 1 Hat Rack 1 Range Picker 1 Range Dispenser 1 Washer and Dryer 1 Range Cart 1 Janitorial Supplies 1 Laminator 2 Fax Machines 4 Tables for Golf Balls Christmas and other seasonal decorations Cones for Shotgun Starts 9 File Cabinets 1 Fire Pit and Chairs R:\LegalU.egal�Files\Current Active Files\Gold Mountain\Golf Management Agreement - FINAL.doc Golf Management Agreement Page 20 of 20 DATE SUBMITTED: December 2" 2009 AGENDA BILL � CITY OF BREMERTON C[TY COUNCIL . ....................................................................................... SUBJECT: Committee Meeting Date: Dec. 9` 2009 Amendment to Gold Mountain Golf Club COUNCIL MEETING Date: Dec. 16 2009 Pro Shop , Driving Range and Cart Pad Department: Parks and Recreation Lease Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: The lease ageement with Scott Alexander's Golf Shop Inc. for the Pro Shop, Cart Pad and Driving Range at Gold Mountain Golf Club expires on December 31 2009. This amendment extends the agreement for one additional year to December 31, 2010. The extension allows the City and Scott Alexander's Pro Shop Inc. an opportunity to enter into negotiations to reach a master agreement for Golf operations at Gold Mountain that reflects the opportunities presented by the refinancing of Gold Mountain debt. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): Revenue anticipated from the amended lease is consistent with the 2010 Gold Mountain Budget APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR � , ' � COUNCIL PRESIDENT: ` CONSENT AGENDA � GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: I move top approve the amendment to the Gold Mountain Pro Shop, Car�Pad and Driving Range Lease extending the lease to December 31 S `, 2010. and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action AMENDMENT TO LEASE AGREEMENT WHEREAS, on September 13, 2007, the City of Bremerton, a municipal corporation of the State of Washington, "Landlord" and Scott Alexander's Golf Shop, Inc., a Washington corporation, "Tenant" cntered into a Lease Agreement; and WHEREAS, the term of the Lease Agreement commenced on September 1, 2007 and shall terminate on December 31, 2009; and WHEREAS, the parties desire to amend the Agreement to extend the term through December 31, 2010; NOW THEREFORE, for mutual consideration, Landlord and Tenant agree as follows: Section 5 of the Lease Agreement is hereby amended to extend the ternunation date to December 31, 2010. All other terms of the Lease Agreement not specifically amended herein shall remain in full force and effect. LANDLORD: TENANT: CITY OF BREMERTON SCOTT ALEXANDER'S GOLF SHOP, INC. , Mayor By: SCOTT ALEXANDER Its: DATE: DATE: By: DARYL MATHENY Its: DATE: ATTEST: Carol Etgen, City Clerk APPROVED AS TO FORM: ROGER LUBOVICH, City Attorney R`Lrgal`L�gal\FiI�S�Cunent Achvc Filcs\GoIJ Muunlain`,Lcatic Agrcement Amendment (2009) doc .�1n�end�nent 10 Leuse.tgreen�ent LEASE AGREEMENT 1. Date and Parties. THIS LEASE AGREEMENT (the "Lease"), is entered into on the date fully executed by and between the CITY OF BREMERTON, a municipal corporation, hereinafter referred to as "Landlord", and SCOTT ALEXANDER'S GOLF SHOP, INC., a Washington Corporation, hereinafter referred to as "TenanY'. 2. General Recitals. A. The Landlord owns and operates a golf complex known as the Gold Mountain Golf Club ("Golf Club"). Gold Mountain originally had one 18-hole golf course and a clubhouse. For purpose of this Lease, this 18-hole course shall be known as "Cascade Course" and this clubhouse as the "Old Clubhouse". The Driving Range (the "Driving Range'� is located on the Old Course. B. In 1996 the Landlord decided to expand the Gold Mountain Golf Club by adding a new 18-hole golf course known as the Olympic Course. Additionally, the Landlord built a new clubhouse (the "Clubhouse") in 2001 at a total cost of $3.5 million. The Landlord financed $3.1 million of the total cost of constructing the Clubhouse by selling bonds (the "Bonds'�, the interest on which is not included in gross income fvr federal income tax purposes. C. The Tenant has served the Landlord as its golf professional for many years. It is the desire of the Tenant and Landlord to continue this relationship. The Tenant and , the Landlord aze simultaneously, with the execution of this Lease, also entering into an agreement for golf management and services entitled "Golf Management Agreement" and an agreement for food and beverage service entitled "Food and Beverage Agreement" so that the Tenant will serve as the Golf Course Pmfessional, and provide management services and food and beverage services for the Golf Club. D. As an inducement for Tenant to enter into the Golf Management Agreement and the Food and Beverage Agreement, and to assure that the customers receive all of the services that are customary for a golf course, the Landlord has agreed to lease the Driving Range and a portion of the Clubhouse to the Tenant. The portion of the Clubhouse to be leased to the Tenant is for a Golf Pro Shop. E. The Driving Range is located adjacent to the Cascade Course, neither of which includes improvements that were bond-financed. F. The Golf Pro Shop, the location of which is within the Clubhouse, is pictorially illustrated in Exhibit A attached hereto and by reference incorporated herein. The pro rata cost of construction for the Clubhouse that is attributable to the Golf Pro Shop is less than the Landlord's contribution to the cost of construction derived from sources other than Bond proceeds, which contribution was approved in the Declaration of Official Intent of the Landlord adopted pursuant to federal tax law prior to the issuance of the Bonds and allocated by Landlord to area of the Clubhouse in which the Golf Pro Shop is located. Page 1 of 8 Gold Mountain Lease G. Tenant has a golf cart rental business and desires to lease land ("Cart Pad'� from the Landlord at Gold Mountain Golf Club for said business. The area to be leased consists of an area of land for a total area of approximately 15,000 square feet identified in Exhibit B attached hereto and by reference incorporated herein. H. The purpose of this Lease is to provide for the Tenant to operate the Pro Shop and Driving Range as well as to operate its private golf cart rental business while serving as the Landlord's Golf Professional under the tenns of the Professional Service Agreeinent referenced above. 3. Premises. The premises subject to this Lease are the Driving Range located at the Gold Mountain Golf Club, the Golf Pro Shop located in the Gold Mountain Clubhouse and the Cart Pad (collecrively, the "Premises'�. The Premises aze located on the real property legally described as Section 36, Township 24 N, Range 1 West, WM in Kitsap County, Washington. � 4. Use of Premises. A. The Golf Pro Shop may be used for all activities normally related to the retail activities of a golf course including, but not limited to, retail sales of golf related merchandise, equipment rental, and golf related professional services. The Driving Range may be used for all activities normally related to operating a Driving Range, including, but not limited to, providing lessons and rental of ba11s and equipment. B. The Tenant shall maintain an adequate stock of golf related merchandise to serve the playing public. C. The Tenant has the exclusive right to rent practice balls on the Driving Range. The Tenant shall provide and maintain ball dispensing machines, ball retrieval and washing equipment. The Tenant shall be responsible for retrieving the balls. The Landlord shall be responsible for grass related maintenance of the Driving Range. D. The Tenant shall have the� exclusive right to salvage golf balls from all water hazards at Gold Mountain. E. The Tenant sha11 have the right to use the Cart Pad for the storage, maintenance and operation of his private golf cart rental business. F. Tenant shall not use the Premises or any part thereof for any illegal purpose. Tenant shall not engage in any activity with respect to or on the Premises other than the express uses and purposed stipulated therein, without obtaining prior written consent from the Landlord, which consent can be withheld for any reason. Tenant agrees to conform to municipal, county, and state codes, statutes, ordinances, and regulations concerning the use and occupation of the Premises. G. The Landlord and Tenant do not intend to allow the Premises to be used in such a manner as to cause the interest on the Bonds to be included in gross income for purposes of federal income taxation. If it is determined that any use contemplated under the terms of this Lease, the Golf Management Agreement or the Food and Beverage Agreement referenced herein Page 2 of 8 Gold Mountain Lease would cause the bonds to be private activity bonds, then the parties agree, that without penalty to either party, the terms of this Lease, the Golf Management Agreement and/or the Food and Beverage Agreement will be modified accordingly so as to preserve the exclusion of the interest on the Bonds from federal income taxation. S. Term. The term of this Lease shall be thirty (30) months commencing on September 1, 2007 (the "Commencement Date") and shall terminate on December 31, 2009, unless otherwise eazlier terminated in accordance with Paragraph 13. 6. Golf ManaQement and Food and Bevera¢e A¢reements The Landlord and Tenant, contemporaneously with the execution of this Lease, have entered into the Golf Management Agreement and the Food and Beverage Agreement, in which the Tenant agrees to perform the services of the Golf Professional for the Golf Club and to operate the restaurant located within the Gold Mountain Clubhouse. A breach of the Golf Management Agreement or the Food and Beverage Agreernent shall be deemed a breach of this Lease. The faithful performance of the terms of said agreements aze part of the consideration for entering into this Lease. 7. Rent. Tenant shall be obligated to pay the following rent for the Premises: - A. Flxed Fee. Base rent of thirty-three thousand dollars ($33,000) per yeaz payable $4,750 on January 1, $11,750 on April 1, $11,750 on July 1, and $4,750 on October 1 of each year during the term of this lease. (�� \ �v�� v./ �� 1 � � � B. Percentaee Fee. In addition, the nant shall pay as additional rent, six � b L��S percent (6%) of the gross revenue from the Golf Club golf cart rental and eight percent (8%) of the gross revenues from driving range fees. These amounts shall be paid quarterly for the \ preceding quarter, payable on April 15, July 1 S, October 1 S and January 15. Tenant shall �� l provide a quarterly accounting to the Landlord of all "gross revenues" at the same time it makes the quarterly payment. The Landlord reserves the right to inspect the financial statements and records of the Tenant at any reasonable time and may require accounting to be performed in accordance with Landlord audit standards. C. Cart Pad. In addition to the Fixed Fee and the Percentage Fee, Tenant shall pay $3,444 per yeaz for the Cart Pad in quarterly payments of $861.00 on January 1, April 1, July 1, and October 1 of each yeaz during the term of this lease. D. Receiating and DeoositinQ. All revenue collected from transactions generated from the driving range and Pro Shop must be processed through the City's Point of Sale System and deposited as provided in Section 10 of the Golf Management Agreement. E. Credit Card Costs and Fees. Contractor shall be responsible for all credit card costs and related fees incurred for Contractor's business pursuant to this Lease. 8. Taxes. The Tenant shall be responsible for the timely payment of all taxes associated with the businesses operated under the terms of this Lease. In addition, the Tenant shall pay all leasehold taxes imposed upon the Landlord and/or the Tenant as a result of this Lease. Page 3 of 8 Gold Mountain Lease 9. Utilities. The Landlord agrees to provide and pay all charges for electricity, water, sewer, gaslpropane, garbage, telephone, and for all other pubIic utilities used in the Premises. The Landlord shall not be responsible for failure of provision of these services unless said failure is due to nonpayment for services. Each party shall pay internet and web page costs and expenses related to their duties and responsibilities under this Agreement, unless otherwise agreed. 10. Sublet. Tenant shall not assign this Lease or sublet the whole or any portion of the Premises without first obtaining Landlord's written consent. Landlord may withhold its consent for any reason. Provided, however, the Tenant may transfer the Lease to a wholly owned corporation or limited liability company for tax purposes or third party liability purposes. However, the Tenant shall remain personally liable to Landlord for the faithful performance of all Lease terms. If consent is once given by Landlord to the assignment of the Lease, or any interest therein, Landlord shall not be ban�ed from afterwazd refusing to consent to any further assignment. 11. Renairs and Maintenance. The Premises have been inspected and aze accepted by Tenant in their present condition, and Tenant will at all times keep the Premises neat, clean and in a sazutary condition. Landlord shall maintain at its sole expense the building, including but not limited to, the roof, foundations, exterior walls, structural members, gutters, downspouts, concealed and underground plumbing and utilities of the Premises in good condition and repair, except that Tenant shall be responsible for repair of any damage resulting from the negligence of Tenant, Landlord shall not be required to redecorate the Premises at any time. Tenant shall be responsible to maintain at its sole expense all the furniture, fixtures and equipment and provide general maintenance as set forth in the Golf Management Agreement and the Food and Beverage Agreement. Tenant agrees that at the expiration of tlus Lease, Tenant will quit and surrender the Premises in a neat and clean condition, and will deliver all keys belonging to the Premises to Landlord. The Contractor shall maintain the counter/kiosk azea at the Driving Range. City shall � provide landscaping services for the Driving Range field. 12. Defaul� In case of violation of this Lease by Tenant, the Landlord shall notify Tenant in writing of such violation. The Tenant shall cure any default that imposes an immediate threat to the public health, safety or welfare within 24 hows. Any default in the payment of monies due under any pmvision of this Lease shall be cured within 10 days. All other violations shall be cured within thirty (30) days following the delivery of said notice. In the event of the failure of the Tenant to remedy any default or violation of the covenants, agreements, or condirions herein contained within the period of time specified in the notice, this Lease and all rights of Tenant hereunder shall be terminated and the Landlord shall have the right to enter upon the Premises and re-take possession thereof. Continued violations for same or similar reasons may be grounds for immediate teanination if a subsequent violation occurs after the Landlord gives notice that it intends to terminate upon the further occurrence of similar violations. 13. Termination. This Lease shall terminate on December 31, 2009. This Lease can be earlier tenninated for good cause. Good cause shali mean any of the following; 1) failure to timely cure a default after notice as provided in pazagraph 12 above, 2) termination or expiration of the Golf Management Agreement or the Food and Beverage Agreement, 3) lack of sufficient Page 4 of 8 Gold Mountain Lease insurance proceeds to rebuild or repair the facility after damage or destruction; 4) insolvency of the Tenant, or the appointment of a receiver to administer its financial affairs, or 5) any reason specified elsewhere in this Lease,` or the attachments hereto; that is designated as grounds for termination. Upon the terminadon of the Lease, the Tenant shall vacate the Premises, and the Landlord may immediately reenter and take possession of the Premises without the necessity of a court order to do so. 14. Accldents and Indemnitv. Tenant agrees to defend, indemnify and hold Landlord hamiless from all loss, daznage, liability or expense resulting from any injury to any person or any loss of or damage to any property caused by or resulting from any act or amission of Tenant or any officer, agent, employee, guest, invitee or visitor of Tenant in or about the Premises, but the foregoing provision shall not be construed to make Tenant responsible for injuries to third parties caused by the sole negligence of Landlord or any officer, agent, employee, guest, invitee or visitor of Landlord. Landlord shall not be liable for any loss or damage to person or property sustained by Tenant, or other persons, which may be caused by theft or by any act of neglect of any tenant or occupant of the building, or of any other person, or by any other cause, unless Landlord is judicially found solely negligent for such damage or injury. Tenant further agrees to procure, at no expense to the Landlord, industrial insurance for all employees of Tenant. 15. Liens. Tenant shall keep the Premises and the Golf Club free from any liens arising out of any work performed, materials fumished or obligations incurred by Tenant. 16. Access. Tenant will allow Landlord or Landlord's agent free access at all reasonable times to the Premises for the purpose of inspection, or of making repairs, additions or alterations to the Premises or any properiy owned by or under the control of Landlord, but this right shall not be construed as an agreement on the part of Landlord to make any repairs other than those repairs for which Landlord is responsible pursuant to the terms hereof. Landlord shall have the right to show the interior of the Premises to interested parties for thirty (30) days prior to the expiration of this Lease. By mutual agreement of the Director of Pazks and Recreation, or his or her designee, (hereinafter "Director'� and Tenant, portions af the Clubhouse may be provided on a non-interference basis with no room chazges assessed when conducting Landlord's business. Room set-up is the responsibility of the Landlord. 17. Ffre Insurance. Iiazards. A. No use shall be made or pennitted to be made of the Premises, nor acts done, which will increase the existing rate of insurance upon the Clubhouse or cause the cancellation of any insurance policy covering the Clubhouse, or any part thereof, nor shall Tenant sell or permit to be kept, used or sold, in or about the Premises, any article which may be prohibited by the standazd form of fire insurance policies. Tenant shall, at its sole cost and expense, comply with any and all requirements, pertaining to the Premises and resulting from Tenant's business activities, of any insurance organization or company necessary for the maintenance of reasonable fire and public liability insurance covering the Premises, Clubhouse and appurtenances. In the event that Tenant fails or refuses to comply with any and all such requuements then Landlord may, at its option, assess the Tenant any increases in such fire and public liability insurance premiums caused as a result thereof and the Tenant shall pay the same Page 5 of 8 Gold Mountain Lease upon demand as additional rent or Landlord may declaze the Tenant to be in default under the terms of this Lease. B. Landlord hereby releases Tenant of and &om every and all right, claim and demand the Landlord may hereafter have against Tenant or TenanYs successors or assigns arising out of or in connection with any property loss or losses occasioned by fire and such items as aze included under the normal extended coverage clause of fire insurance policies and to ihe extent of the policy limits, and does hereby waive all rights of subrogation in favor of insurance carriers against the Tenant arising out of any lawsuit occasioned by fire and such items as are included under the normal extended coverage clause of fire insurance policies and sustained by Landlord in or ar+ound the Premises. Tenant hereby releases Landlord from any and every right, claim and demand that Tenant may hereinafter have against Landlord or Landlord's successors or assigns arising out of or in connection with any lawsuit occasioned by fire and such items as are included under the normal extended coverage clause of fire insurance policies, and does hereby waive all rights of subrogation in favor of insurance carriers against Landlord arising out of any loss occasioned by fire and such items as are included under the normal extended coverage clause of fire insurance policies and sustained by Tenant to the trade fixtures, equipment and merchandise on the Premises. The waiver pmvided for in this paragraph shall be applicable and effective only in the event such waivers are attainable from the insurance carriers concerned. 18. Liabilitv Insarance. Tenant, at its own expense, shall provide and keep in force with companies acceptable to Landlord, comprehensive public liability, including products liability insurance far the benefit of Landlord and Tenant jointly against liability for bodily injury and property damage in the amount of not less than one million dollars ($1,000,000.00). Tenant . shall fiunish Landlord with a certificate of such policy, including an additional insured endorsement acceptable to Landlord's Risk Manager, within ten (10) days of the commencement date of this Lease and thereaRer shall satisfy Landlord that such policy is in full force and effeet. Such policy shall name Landlord as an additional insured and shall be primary and noncontributing with any insurance carried by Landlord. 1fie policy shall further provide that it shall not be canceled or altered without twenty (20) days prior written notice to Landlord. 19. DamaQe or Destruction. In the event the Premises, other than the Clubhouse are damaged to such an extent as to render the same unusable in whole or in substantial part, or are destroyed, Tenant shall give Landlord or Landlord's agent immediate written notice thereof, and it sha11 be optional with Landlord to repair or rebuild the same. Landlord shall have not more than ninety (90) days after date of such notification to notify Tenant in writing of Landlord's intention to repair or rebuild the Premises, or the part so damaged and, if Landlord elects to repair or rebuild Premises, Landlord shall prosecute the work of such repairing or rebuilding without unnecessary delay, and during such period the rent of the Premises shall be abated in the same ratio that that portion of the Premises rendered for the time being unfit for occupancy shall bear to the whole of the Premises. If Landlord shall fail to give the notice aforesaid, Tenant shall have the right to declare this Lease terminated by written notice served upon Landlord or Landlord's agent. In the event that there is not sufficient insurance to pay for the repair or rebuilding of any damaged structure, then the Landlord, in its sole discretion, may terminate this Lease. Provided, however, prior to terminating the Lease for this reason, the Landlord shall discuss with the Tenant other ways to provide for the funding shortfall, but such will not prohibit the Landlord from terminating the lease. Page 6 of 8 Cold Mountain Lease In the event the Clubhouse is damaged (even though the Premises shall not be damaged thereby) to such an extent that in the reasonable opinion of Landlord it shall not be practicable to repair or rebuild, or its destroyed, then it shall be optional with Landlord to terminate this I.ease by written notice served on Tenant within thirty (30) days after such damage or destruction. 20. Notices. All notices under this Lease shall be in writing and delivered in person or sent by registered or certified mail to Landlord in care of the Director, 345 6'� Street, Suite 600, Bremerton, Washington 98337, and to Tenant at P.O. Box 197, Bremerton, Washington 98312, effective as of postmazk time and date, or to such other place as may hereafter be designated by either party in writing. 21. Alterations. Tenant shall not make any alterations, additions or impmvements in the Premises without first obtaining the consent of Landlord in writing, which consent can be withheld at Landlord's sole discretion. All alterations, addirions and improvements, shall be at the sole cost and expense of Tenant, and shall remain in and be surrendered with the Premises as a part thereof at the termination of this Lease. If Tenant shall perform work with the consent of Landlord, as provided above, Tenant agrees to comply with all laws, ordinances, rules and regulations of the City of Bremerton and any other authorized public authority. Tenant further agrees that workmanship will be of a reasonable commercial quality, in color schemes in accordance with current building standards and free of inechanics liens. Tenant further agrees to save Landlord free and harmless from damage, loss or expense arising out of such work. 22. Costs and Attornev Fees. If, by reason of any default or breach on the part of either party in the performance of any of the provisions of this Lease, a legal action is instituted, the losing party agrees to pay all reasonable costs and attomey fees in connection therewith. It is agreed that the venue of any legal action brought under the terms of shall be in Kitsap County. 23. Amendments. This Lease may be amended at any time only by written agreement signed by the parties. 24. Insolvencv. In the event that the Tenant shall become insolvent or go into bankr�uptcy, this Lease may be canceled at the option of the Landlord without notice, and the Landlord may take immediate possession of the Premises and the whole thereof and the same shall not become an asset in bankruptcy. 25. Nondiscrimination. Tenant shall not discruninate in employment or services to the public on the basis of sex, race, color, creed, national origin, age, marital status, physical, mental or sensory handicap except an employment action based o a bona fide occupational qualification. 26. Waiver. Failure to insist upon strict compliance with any terms, covenants or conditions of this agreement shall not be deemed a waiver of such, nor shall any waiver or relinquishment of such right or power at any time be taken to be a waiver of any other breach. 27. BindinQ Effect. This Lease shall be binding upon the heirs, successors, assigns and all other parties legally empowered with signatory rights of any or all of the parties hereto. Page 7 vf 8 Gold Mountain Lease 28. Invaliditv of Provisions. Should any term, provision, condition or other portion of this lease be held to be inoperative, invalid or void, the same shall not affect any other term, provision, condition or other portion of this Lease and the remainder of this Lease shall be effective as if such term, provision, condition or portion had not been contained herein. 29. Previous Aereements Superseded. The terms and conditions of this Lease supersede the terms, obligations and conditions of any existing or prior agreement between the parties regarding the subject matter of this Lease. This lease replaces in its entirety any prior agreements including prior leases and any amendments and extensions thereto. 30. Entire Agreemen� This Lease, including the exhibits and statutes referenced herein contain the entire agreement between the Parties and aze the embodiment of all written or oral representarions between the parties hereto. LANDLORD: TENANT: CITY RT - ��"r"� CARY BO EMAN, Mayor By: S�OTT ALEXANDER Its: A.� iS�06�r DATE: -.3 DA 9 � Lro � By: Y H ATTEST: Its: . DATE: � � PAULA JOHNSTON, Ci Cler ST R GER A. LUBOVICH, City R:�LegalV.egal�Files rrent Active Files\Gold Mountain�Lease Agreement - FINAL.doc Page 8 of S Cold Mountain Lease �. • _. , EXHi61T"A" Golf Pro Shop new Gold Mountain Clubhouse �.a ,� , ��, ;------- �� `°"' i ; . , � � i � ' �� .�.,�. i ' -� ' ' 1 _.. � "�.'.� .�:'.�.- I � � ` -'� , � f ril l� � � � I �,� + _. r . w"' L � � .i "� � ' . � ... .� � � +s�� w .�. � �. �. � � � � wa� . �i wp�a . e�w� a a O MAIN LEYEL FL�OOR PLAN , c�uaNOUSe � � ' � .'n� f �L ' 'i � . _ �" ' ! '�. I Sf _ y � r , � ~ � ` m.� � � r ,c, �,•, ,� � Lt,+'' � � s'-f � a � �'+✓ i► i +�:� ., j t� ''`F' ',, ��„ . , �'� _ e t, t, � � •'�." 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',', ~�� .� - � .. ; .;% ♦ J � `' ` , �I / . � � • / �•```_` �• `� . � 1t1 , �` � �� //) ��/� s \ � `�—� �� HYDROSEED [ EXHIBIT B — � DA"TE SUBMI'CTED: Dece►nber 2" , 2009 AGENDA BILL � CITY OF BREMERTON CITY COUNCIL . ....................................................................................... SUBJECT: Amendment to Gold Mountain Committee Meeting Date: Dec. 9` 2009 Golf Club Food and Beverage Services COUNCIL MEETING Date: Dec. 16, 2009 Agreement Department: Parks and Recreation Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: The Food and Beverage Agreement at Gold Mountain Golf Club with Scott Alexander's Golf Shop Inc. expires on December 31 St ,2009. This amendment modifies the compensation clause and extends the agreement for one additional year and to Dec.3l 2010. The modification to compensation removes Section 7. 1. a. requiring the Contractor to be paid an annual sum for operation of Food and Beverage sales. The clause is no longer required owing to the refinancing of the Gold Mountain debt. ATTACHMENTS: Amendment Original Agreement FISCAL IMPACTS (Include Budgeted Amount): The amendment is consistent with 2010 Gold Mountain Golf budget. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: , � � COMMITTEE CHAIR � COUNCIL PRESIDENT: � CONSENT AGENDA GENERAL BUSINESS ❑ PUBLIC HEARING ❑ RECOMMENDED MOTION: I move to approve the amendment modifying and extending the Gold Mountain Golf Club Food and Beverage A�eement and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action AMENDMENT TO FOOD AND BEVERAGE AGREEMENT WHEREAS, on September 13, 2007, the City of Bremerton, a municipal corporation of the State of Washington, `'City" and Scott Alexander's Golf Shop, Inc., a Washington corporation, "Contractor" entered into and Agreement to provide professional restaurant and other food and beverage management and services at the Ciry of Bremerton Gold Mountain Golf Club; and WHEREAS, the term of the Food and Beverage Agreement commenced on January l, 2007 and shall terminate on December 31, 2009; and WHEREAS, the parties desire to amend the Agreement to extend the term through December 31, 2010; NOW THEREFORE, for mutual consideration, City and Contractor agree as follows: 1) Section 3 of the Agreement entitled "TERM" is hereby amended to extend the termination date of the Food and Beverage Agreement to December 31, 2010. 2) Section 7 of the Agreement entitled "COMPENSATION" is hereby amended to read as follows: A. Contractor shall compensate Citv for use of the Premises for food and bevera�e �e �pe�se�ec#�-fe�services as follows: � • �---z�-�ncCE��c « r 1, tt 1. •a rl, 1 „F - � _ � e • • � � � � > > • . • � � 0 � � • f � • 1 Compensation Contractor shall�av Citv the sum of six percent (6%) of revenues received from all food and bever�,e sales net of sales tax in excess of one million dollars ($1,000,00O.00Z 2. Final reconciliation. Final reconciliation and payment for each year will be made by January 31 S` of the following year. , ` EB. Restaurant Closure — For Conditions and Repair. The restaurant shall remain open unless the golf courses and related facilities are closed pursuant to Section 7(D) and (E) of the Golf Management Agreement or the Clubhouse is closed as a result of causes beyond the control, fault, or negligence of the parties. Such causes may include, without limitation, acts of God or public enemy; acts of the federal, state, or local governments; fires; floods; epidemics; voicanic eruptions; quarantine Amendmenl to Food and Beverage Agreemen� restrictions; strikes; frei�ht embargoes; court orders; and unusually severe weather or other condition ihat causes all or a portion of the Golf Club facilities to be closed for eYtended periods of time. Should either the City or the Contractor fail to perform because of a cause described in this subsection, the Ciry and the Contractor shall make a mutually acceptable revision in the SCOPE OF SERVICES and COMPENSAT[ON provided for in this Contract, including termination of the A�reement if the Premises ' ' is deemed unusable by the City as a result of major damage or destruction and the City elects not to rebuild the same. In the event that City determines that it is necessary to close all or a portion of the Clubhouse due to regular maintenance, repair, capital improvements, inclement weather, or similar condition, the City shall coordinate such closing with the Contractor prior to actual closing. Contractor shall comply with the Director's decision to close all or part of the Clubhouse at no cost to the City. In the event of closure of all or a portion of the Premises as set forth in this subsection, Contractor shall not be entitied to any compensation pursuant to this section, Section 7, whether fixed fee or percentage fee, however, when feasible, the City and Contractor shall revise the SCOPE OF SERVICES and COMPENSATION as noted above for partial closure of the Premises, unless this agreement is terminated pursuant to Section 14 (F). The City shall incur no liability to Contractor for (ost revenue or other additional compensation as a result of any closure of all or a portion of the Premises as set forth in this subsection. All other terms of the Agreement not specifically amended herein shall remain in futl force and effect. CITY OF BREMERTON SCOTT ALEXANDER'S GOLF SHOP, INC. , Mayor By: SCOTT ALEXANDER Its: DATE: DATE: By: DARYL MATHENY Its: DATE: ATTEST: Carol Etgen, City Clerk APPROVED AS TO FORM: ROGER LUBOV[CH, City Attorney R 1l.egal\LegalU�iles\Current AcUve hiles\Gold Mountain\Food and [3everage Agreement Amendment 1'O�y) doc Amendment to Foud and Beverage Agreement FOOD AND BEVERAGE AGREEMENT THIS AGREEMENT made and entered into on the date fully executed by and between the CITY OF BREMERTON, a municipal corporation of the State of Washington, hereinafter refened to as "City," and SCOTT ALEXANDER'S GOLF SHOP, INC., a Washington Corporation, hereinafter referred to as "Contractor," to provide professional restaurant and other food and beverage management and services pursuant to this Agreement, at the City of Bremerton Gold Mountain Golf Club. WHEREAS, the City is the owner of Gold Mountain Golf Club, which ownership includes the land upon which said golf complex is located, the buildings and other improvements which are a part thereof; and WHEREAS, the Gold Mountain Golf Club consists of two 18 hole golf courses, the Olympic and the Cascade course, ("Golf Courses" or "Courses"), a driving range, and the clubhouse containing a Pro Shop, restaurant, meeting rooms and the Olympic room, ("Clubhouse") and other related facilities and structures, collectively also referred to herein as ("Golf Club") WHEREAS, the City previously entered into an agreement with Scott Alexander and Daryl Matheny, Contractor's principals ("Principals"), for food, beverage, and golf management and related services at the Gold Mountain Golf Club; including, but not limited to, food and beverage service, management of the Cascade and Olympic golf courses and driving range, and for providing Professional Golf Association ("PGA") professional golf services and lessons to the facility; and WHEREAS, the agreement between the City and Contractor for these services expired December 31, 2006 which has twice been extended by amendments to said agreement pending negotiation of a new agreement; and WHEREAS, the extensions were executed with the understanding that new terms may be negotiated for a new agreement beginning with the year 2007; and WHEREAS, the City desires to enter into a new agreement with Contractor for food and beverage services entitled "Food and Beverage Agreement" with terms effective January 1, 2007 and superseding the terms of the extended agreement; and WHEREAS, the Parties hereto have simultaneously executed a separate agreement entitled "Golf Management Agreement" relating to the management of the Cascade and Olympic golf courses and driving range and Pro Shop and for providing professional golf services and lessons to the Gold Mountain Golf Club; and WHEREAS, the Parties hereto have also simultaneously executed a document entitled "Lease Agreement" relating to the lease to the Contractor of a certain portion of the Gold Food & Beverage Agreement Page 1 of 16 Mountain Golf Club ("Lease") for operation of a Pro Shop, driving range and Contractor's private cart rental business; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: SECTION 1. PURPOSE AND ADMINISTRATION. A. The purpose of this Agreement is to establish a management services agreement whereby contractor will provide food and beverage management and related services at City- owned golf facilities. This Agreement is not a lease, nor does it create a leasehold interest other than similar property interest in Contractor to the City's facilities. B. Contractor will be responsible for performing all work and/or services described herein. The Contractor's performance will be monitored and reviewed by the City of Bremerton Director of Pazks and Recreation, or his or her designee, (hereinafter "Director"). Contractor shall report directly to the Director. Reports and data required to be provided by the Contractor shall be delivered to the Director. Questions of the Contractor regarding interpretation of the terms, provisions and requirements of this Agreement shall be addressed to the Director for response. SECTION 2. PREMISES. The facilities of the Golf Club to be provided food and beverage services by the Contractor pursuant to this agreement include the Golf Courses and the Clubhouse and related facilities, hereinafter ("Premises"). SECTION 3. TERM. Pursuant to IRS Revenue Procedure 97-13, the term of this Agreement shall b"e three (3) years commencing on January 1, 2007 ("Commencement Date") and shall terminate on December 31, 2009, unless terminated earlier in accordance with Section 14. SECTION 4. SCOPE OF SERVICES. A. General Services. 1. The Contractor's responsibilities include providing food and beverage service on the Premises including cart service on the Golf Courses and restaurant service in the Clubhouse: Unless otherwise noted, food and beverage service includes the restaurant and all other food and beverage sales and service at the Golf Club. B. Specific Services. In providing the general services described above, Contractor shall provide not less than the following specific services: 1. Restaurant, Food and Beverage Service. a. The Contractor will be responsible, and assume all costs and expenses, for the operation, management, and supervision of all food and beverage service operations on the Premises as proposed by Contractor and approved by City, including but not limited to, restaurant, vending machines and providing catering for special events at the Golf Club. Contractor shall be responsible for the furnishing of adequate stock of food and beverage supplies at its cost and expense. Food & Beverage Agreement Page2of16 b. The Contractor shall be responsible for hiring, training and managing sufficient employees to adequately staff the restaurant and lounge. Contractor shall provide high caliber quality staff properly certified and permitted to provide food and alcohol service as required by state law. c. The Contractor shall apply and prepare the application and shall assume responsibility for all costs and expenses of the application for an applicable liquor license. The Contractor shall abide by state requirements regarding use of alcohol at the Golf Club. The City shall execute any reasonable, appropriate documents as owner of the Golf Club that may be required in conjunction with such application. d. The Contractor shall be responsible for obtaining all necessary licenses and permits for the operation of a restaurant and lounge. 2. Restaurant Management. a. The Contractor shall manage the restaurant and lounge at the Clubhouse for the City. The City shall provide the furniture, fixtures and equipment ("FF&E") currently located in the Clubhouse; provided, that the Contractor is providing, and will replace as needed, the FF&E listed in Exhibit A attached hereto and by reference incorporated herein. b. The Contractor shall provide maintenance and repair services for all kitchen appliances and fixtures, restaurant furniture, all FF&E within the restaurant, Contractor owned tools and equipment, and all Contractor leased equipment. Replacement of City owned equipment shall be in the sole discretion of the City and the City shall arrange for equipment replacement in accordance with available funding. c. Contractor shall provide adequate notice and signage at all points of entry to the restaurant as well as the front entrance to the Clubhouse designating that the restaurant is open or closed for business. Contractor shall adequately staff and provide prompt service for customers to the restaurant. 3. Attend Meetings. Contractor agrees to be available to attend regular and special meetings of the Golf Complex Board, Parks and Recreation Commission and City Council, and shall be prepared to discuss issues and ideas of interest to the Contractor and City. C. Pricing of 5ervices. 1. Food and beverage menus and prices shall be approved by the Director. SECTION 5. OTHER DUTIES AND RESPONSIBILITIES. A. Personnel. The Contractor shall provide competent personnel necessary for such operations and shall train and supervise them in their work and shall pay them for their services at the Contractor's sole cost and expense. Contractor shall supervise, direct and train staff to perform duties and meet requirements for sales and services which are, in the opinion of the City and Contractor, necessary. Contractor shall provide an on-going staff training program with emphasis on customer training. B. Credit Rating. Contractor shall maintain a good credit rating in all commercial transactions so as not to discredit the reputation or name of the City of Bremerton. Food 8� Beverage Agreement Page 3 of 16 C. Quarterly Review. Contractor and City shall meet on a quarterly schedule, or as otherwise as mutually agreed, to evaluate operations at the Golf Club and the performance of the parties pursuant to this agreement and to make mutually agreeable changes. SECTION 6. OPERATING POLICIES AND PROCEDURES. The Contractor will: A. Operate the restaurant pursuant to the rules and regulations established by the City Council and the Director. B. Expel unruly persons or those under the influence of intoxicants from the Premises under Contractor's control. C. Not foster nor permit any illegal activity within the restaurant under Contractor's control. D. Answer and handle all complaints and shall supervise a public relations program. In dealing with the public, Contractor will not speak towazd City policies or decisions in a derogatory manner. Contractor shall explain and support city policies to staff and the golfing public. E. Not use the Premises for ancillary, revenue-producing activities or social activities, unless expressly authorized by the City. The parties acknowledge that Contractor conducts certain private business operations pursuant to the Lease executed with the City for operation of a Pro Shop, driving range and Contractor's private cart rental business and further that Contractor subcontracts lessons at the Golf Club. F. Provide service to meet public demand and shall keep the restaurant open each day that the golf courses are open for play, and at other reasonable hours as prescribed by the City, except Thanksgiving and Christmas, at Contractors option, days the Greens Superintendent closes the course due to inclement weather and except when closed as set forth in Section 7(C). SECTION 7. COMPENSATION. A. Contractor shall be compensated for services as follows: 1. Food and Beverage Sales. a. Fixed Fee. Contractor shall be paid the annual sum of one million dollars ($1,000,000.00). The compensation shall be paid in weekly installments. Each weekly payment will be in an amount equal to the gross food and beverage revenue, net of sales tax for the week, until gross revenues, net of sales tax, reach one million dollars ($1,000,000.00). b. Percentage Fee. In addition, throughout the term of this contract, Contractor shall be paid ninety four percent (94%) of revenues received from all food and beverage sales, net of sales tax, in excess of one million dollars ($1,000,000.00) but in no event shall this percentage fee exceed the fixed fee in any given year set forth in Section 7(A)(1)(a) above. � Food & Beverage Agreement Page 4 of 16 2. Final reconciliation. Final reconciliation and payment for each year will be made by January 31 of the following year. B. Withholding of Payments to Contractor. In the event the Contractor is 60 days or later in payment of lease payments associated with the Lease, City may withhold and apply all monies due to Contractor from City under this Agreement to offset any such amounts due to City from Contractor under said Lease. C. Restaurant Closure — For Conditions and Repair. The restaurant shall remain open unless the golf courses and related facilities are closed pursuant to Section 7(D) and (E) of the Golf Management Agreement or the Clubhouse is closed as a result of causes beyond the control, fault, or negligence of the parties. Such causes may include, without limitation, acts of God or public enemy; acts of the federal, state, or local governments; fires; floods; epidemics; volcanic eruptions; quarantine restrictions; strikes; freight embargoes; court orders; and unusually severe weather or other condition that causes all or a portion of the Golf Club facilities to be closed for extended periods of time. Should either the City or the Contractor fail to perform because of a cause described in this subsection, the City and the Contractor shall make a mutually acceptable revision in the SCOPE OF SERVICES and COMPENSATION provided for in this Contract, including termination of the Agreement if the Premises is deemed unusable by the City as a result of major damage or destruction and the City elects not to rebuild the same. In the event that City determines that it is necessary to close all or a portion of the Clubhouse due to regular maintenance, repair, capital improvements, inclement weather, or similar condition, the City shall coordinate such closing with the Contractor prior to actual � closing. Contractor shall comply with the Director's decision to close all or part of the Clubhouse at no cost to the City. In the event of closure of all or a portion of the Premises as set forth in this subsection, Contractor shall not be entitled to any compensation pursuant to this section, Section 7, whether fixed fee or percentage fee, however, when feasible, the City and Contractor shall revise the SCOPE OF SERVICES and COMPENSATION as noted above for partial closure of the Premises, unless this agreement is terminated pursuant to Section 14 (F). The City shall incur no liability to Contractor for lost revenue or other additional compensation as a result of any closure of all or a portion of the Premises as set forth in this subsection. SECTION 8. CITY RESPONSIBILITIES - UTILITIES. All electric power, water, sewer, gas/propane, street utility, garbage and telephone service related to this agreement shall be paid by the City. If upon review the City determines that action is needed to address excessive consumption, Contractor will promptly respond and take appropriate action to remedy the excessive consumption. Each party shall pay internet and web page costs and expenses related to their duties and responsibilities under this Agreement, unless otherwise agreed. SECTION 9. CAPITAL IMPROVEMENTS AND FIXTURES. Contractor shall not make any alterations, additions or improvements in the Gold Mountain Golf Club, including the restaurant, without first obtaining the consent of City in writing, which consent can be withheld at City's sole discretion. All alterations, additions and improvements, shall be at the sole cost Food & Beverage Agree►nent Page 5 of 16 and expense of Contractor, and shall remain in and be surrendered with the Clubhouse as a part thereof at the termination of this Agreement except for those improvements and fixtures supplied by the Contractor which at the time of this Agreement are identified on the attached Exhibit A. If Contractor performs work with the consent of City, as provided above, Contractor agrees to comply with all laws, ordinances, rules and regulations of the City and any other authorized public authority. Contractor further agrees that workmanship will be of a reasonable commercial quality, in color schemes in accordance with current building, standards, and free of inechanics liens. Contractor further agees to save City free and harmless from damage, loss or expense arising out of such work. SECTION 10. COLLECTION OF FEES, FINANCIAL REPORTING, AUDITING AND TAXES. Pursuant to the Golf Club Revenue Bond resolutions, the City irrevocably pledged gross revenues from the Golf Club as security for bond repayment. Therefore, all gross revenues from any source shall first be deposited in the City's bank account and disbursed pursuant to this Agreement. A. Point of 5ale System. City shall be responsible for purchasing, setting up and maintaining a point of sale system through which all transactions at the Golf Club will be processed. 1. City's Responsibilities. The City shall provide a cashiering system for use by the Contractor. City shall provide initial training on the operations of the cashiering system. All subsequent training of Contractor's staff shall be the responsibility of the Contractor. The City shall also be responsible for maintenance of network, wiring, software, and equipment. The City will provide repair parts as needed for equipment. 2. Contractor's Responsibilities. Contractor shall be responsible for any additional hardware, user licenses, and software that Contractor chooses to install. The Contractor shall also be responsible for operating supplies such as receipt paper, toner, and labels. Contractor shall provide additional formal training for Contractor's employees after initial training sessions have been performed by the City. New cashier employees and office managers must have suitable knowledge of the Golf cashiering system in order to perform their duties in an efficient and accurate manner. This training may be provided by Contractor personnel. � 3. Modifieations. Any other changes, additions, or modifications applicable to the City owned cashiering system would need mutual agreement as to payment responsibility. B. Receipting. Contractor and/or subcontractor shall collect for, and on behalf of, the City all gross revenue, including but not limited to food and beverage sales, non-sufficient fund check return fees, and all other fees at the Golf Club in strict accordance with the schedule of fees established by the City, unless other instructions are given in writing to the Contractor. Netting of transactions is prohibited. All revenue collected from transactions under this agreement must be processed through the Point of Sale System and deposited as provided in subsection 10(C). All food service gross revenue, including from tournaments, group functions and special package offerings, must be recorded, collected, and deposited in a manner which will dispense a dated receipt to be given to each customer. Food & Beverage Agree�ne�:t Page6of16 C. Deposits. All deposits must be prepared in a timely manner defined as '/z hour ahead of scheduled pick-up and composition of deposit shall remain intact and a clear audit trail maintained. The City will provide and pay for courier service. Any delays causing additional "premise charges" will be paid by Contractor. All deposits will be made into a single account established for the Golf Club. Settlements and appropriate disbursements will be made from this account. Contractor shall be responsible for any loss or theft of City funds while the same are in its possession or control. Contractor shall provide City with a fidelity bond and a performance bond as required in this Agreement. Contractor and any subcontractor shall comply with accounting procedures as may be required by the City to comply with state laws, regulations and audit review requirements. D. Reports. Contractor shall provide to the City daily reports of food and beverage sales activity and receipts in a format to be provided by the Director and Finance Officer, and shall structure their accounting system in a method satisfactory and acceptable to the City. The reports will be forwarded to the Director and must be received by the 2nd business day following the day of activity, excluding Fridays, Saturdays and Sundays which will be due on Tuesdays. The reports must agree with the corresponding deposit for the day. In addition, the Contractor shall submit a copy of its previous yeaz's operating statement by March 31 to demonstrate Contractor's financial ability to maintain operations under this Agreement. E. Audits. All revenue and fees collected at the Golf Club are City revenues and subject to audit by the State Auditor, City Internal Auditor, or City hired Certified Public Accountants. Contractor shall permit the City, from time to time as the City deems necessary, through its designated representatives, to inspect and audit in Bremerton, Washington, at any reasonable time, all pertinent books and records of Contractor and any other person or entity that has performed work in connection with or related to Contractor's services under this Agreement to verify the accuracy of accounting records and shall supply the City with, or shall permit the City to make a copy of any books and records and any portion thereof, upon the City's request. Contractor shall ensure that such inspection, audit and copying right of the City is a condition of any contract, agreement or other arrangement under which any other person or entity is permitted to perform work in connection with or related to Contractor's services under this Agreement. The Contractor shall take immediate corrective action on all prior, current or future internal control weaknesses as directed by the City. F. Taxes. Pursuant to the City's bond resolutions on the Golf Club facilities, the Contractor will remit to the City all gross revenues collected. Sales tax from Contractor's activities remitted to the City will be held by the City and will be returned to the Contractor weekly or as otherwise agreed. City shall retain and remit sales taxes on revenues from food and beverage sales. As an independent contractor, the Contractor acknowledges that it is responsible for payment of any local, state, state business and occupation taac, or federal taxes or fees with respect to the Contractor's business, including sales tax, for its activities. The Contractor shall pay any and all applicable taxes when due. G. Credit Card Costs and Fees. Contractor shall be responsible for all credit card costs and related fees incurred for food and beverage service pursuant to this agreement. Food & Beverage Agreement Page7of16 SECTION 11. MAINTENANCE OF RECORDS. The Contractor shall keep and maintain on a current basis all books and records, including the operating accounts, to support its management and operations of the Premises under this Agreement. The City or its authorized representative shall have the authority to inspect, audit, and copy, upon reasonable notice and from time to time, any records of the Contractor regarding its billings, payments or work under this Agreement. Contractor shall retain these records for inspection, audit, and copying for at least three (3) years from the date of completion or termination of this Agreement, or as otherwise required by the Washington Secretary of State General Records Retention Schedule for all Local Government Agencies in Washington State. Contractor shall, at all times, provide the City with all records for the prior three (3) years that relate to the financial matters of the facilities managed by Contractor under this Agreement. SECTION 12. AUDIT OF PAYMENTS. The City, either directly or through a designated representative, may audit the records of the Contractor at any time during the three (3) year period established by Section 11, MAINTENANCE OF RECORDS. If an audit discloses that payments to the Contractor under Section 7, COMPENSATION, were in excess of the amount to which the Contractor was entitled, or that the payments to the City were less than the amount to which the City was entitled, then Contractor shall repay the amount of the excess or deficiency to the City. If an audit discloses that payments to the City under Section 7, COMPENSATION, were in excess of the amount to which the City was entitled, or that payments to the Contractor were less than the amount to which the Contractor was entitled, then the City shall repay the amount of the excess or deficiency to the Contractor. SECTION 13. ASSIGNMENT. Contractor shall not either voluntarily or by operation of law assign, transfer, mortgage, pledge, hypothecate, or encumber this contract or any interest therein and shall not subcontract the obligations under this Agreement, or any part thereof, or allow any person (employees, agents, servants, and invitees of Contractor excepted) to use the Golf Club Facilities, or any portion thereof, without the prior written consent of the City. Any such assignment, subcontracting or use without compliance with the terms of this paragraph shall be void and shall constitute a default under the terms of this Contract. If Contractor is a corporation, any transfer of this Contract from Contractor by merger, consolidation, or liquidation, or any change in the ownership or power to vote in a majority of the outstanding voting stock of Contractor shall constitute an assignment for purposes of this paragraph. Any consent to one assignment, subcontracting, or use by any other person shall not be deemed to be a consent to any subsequent assignment, subcontracting, or use by another person. Consent to any such assignment, subcontracting or use shall in no way relieve Contractor of any liability under this Agreement. Assignment by Contractor to a financial institution holding a security interest in this Agreement shall not be considered to be a violation of the consent requirements of this Agreement. Consent for any subsequent assignments by said financial institution will not be unreasonably withheld; however, any assignee must have experience and be knowledgeable in golf and food and beverage operations. SECTION 14. TERMINATION. This Contract will terminate upon the happening of any of the following events: A. Upon its normal termination if not renewed. Food & Beverage Agreement Page8of16 B. Upon termination of the Lease and/or Golf Management Agreement. C. Upon the death of both of Contractor's Principals. D. By mutual written agreement. E. Breach of this Agreement as set forth in Section 15 below. F. Major damage or destruction of the golf Club property, structures or equipment that is the subject of this Agreement, when the City decides not to rebuild, and that damage or destruction will prevent Contractor from substantially performing their obligation under this Agreement. SECTION 15. BREACH. A. In the event that either party claims that the other is in a substantial breach of any of the provisions of this Contract, notice of the breach shall be submitted to the party alleged to be in breach and the party in breach shall have thirty (30) days from receipt of the notice within which to correct any activity or conduct claimed by the other to have constituted a substantial breach of this Contract. The notice shall identify the nature of the breach and the contract provisions violated. B, In the event that the party in breach shall fail to correct the activity claimed to constitute a substantial breach of this Contract within thirty days of receipt of the notice of breach, the party claiming breach may: 1. Issue a notice of termination; and/or 2. Seek judicial remedy or specific performance; and/or 3. Pursue any other remedy available at law or equity. C. The Contractor is subject to immediate termination upon written notice by City if: 1. Contractor violates any fiduciary duty to the City by misappropriating or not properly accounting for or mishandling City funds as determined by the City or Washington State Auditor; or 2. Contractor vacates or abandons the Golf Club facilities under Contractor's responsibility. D. Upon receipt of notice of termination by Contractor, which is issued by the City, the City shall have the right to: 1. Enter and take possession of the facilities; and/or 2. Bring suit for and collect all fees and portions of gross revenue or any other monies required to be paid to the City which shall have accrued to the time of termination of the Contractor's rights. E. Upon written notice of termination by the City, Contractor will have thirty (30) days to vacate the Premises unless the City elects to take immediate possession as set forth in Food & Beverage Agreement Page 9 of 16 paragraph D above. Termination shall be affected by serving a Notice of Termination by certified mail (return receipt requested) or by personal delivery upon the Contractor setting forth the manner in which the Contractor is in default. F. Neither the City nor the Contractor shall have breached this Contract by reason of the closing of all or a portion of the golf course facilities as set forth in Section 7(C)). G. Examples of a breach by the Contractor which warrants termination, if not cured, shall include but not be limited to: 1. Misappropriation or mishandling of City funds. 2. Contractor makes any general assignment or general arrangement for the benefit of creditors or the filing by or against Contractor of a petition to have Contractor adjudicated as bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Contractor, the same is dismissed within sixty (60) days or the appointment of a trustee or a receiver to take possession of substantially all of Contractor's assets located at the Premises or of Contractor's interest in this Agreement, where possession is not restored to Contractor within thirty (30) days or the attachment, execution, or other judicial seizure of substantially all of Contractor's assets located at the Premises or of Contractor's interest in this Agreement where such seizure is not discharged within thirty (30) days. 3. Contractor assigns all or part of its interest in this Agreement without prior written consent of the City pursuant to Section 13. 4. Nonpayment of outstanding current liabilities within ninety (90) days and failure to pay Federal, State, and local taxes and license fees when due. 5. Continuing inattention or neglect of duties. 6. Conviction of a felony or conviction of a non-felony crime of dishonesty, theft or deceit of either of the Principals. SECTION 16. PURCHASE OF CONTRACTORS MERCHANDISE. In the event the City takes over management of the Golf Club facilities, after expiration of this Agreement or earlier termination by the City, Contractor reserves the right, if it so elects at its discretion, to have the City purchase the Contractor's food and beverage merchandise and moveable furnishings identified in Exhibit A at Contractor's cost less depreciation mutually agreed upon. If there is no agreement, this amount shall be established by a mutually agreed upon independent appraiser. The City shall make payment within 90 days of expiration or termination, less any monies owing to the City under the terms of this Agreement, the Golf Management Agreement or under the terms of the Lease. The City may, at its discretion, replace any of the items in Exhibit A, in which case, the replaced items will belong to the City and not be subject to purchase by the City as provided herein. SECTION 17. INDEPENDENT CONTRACTOR. A. The Contractor is engaged as an independent contractor and will be responsible for any federal, state, and local taxes and fees applicable to payments hereunder. Food & Beverage Agreement Page 10 of 16 B. The Contractor, its subcontractors, and their employees, are not employees of the City and are not eligible for any benefits through the City, including without limitation federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits. C. The parties agree and acknowledge that the Contractor is an independent contractor and not the agent or employee of the City of Bremerton, and that no liability shall attach to the City as a result of the acts or omissions of the Contractor, its agents or employees. D. The Contractor shall be responsible for withholding and paying all payroll taxes for any person hired by them to perform the duties they are required to perform under the terms of this Agreement. They are also responsible for all taxes owed to any governmental agency as a result of the monies paid to them under the terms of this Agreement. SECTION 18. INDEMNIFICATION, INSURANCE, BOND. A. Indemni�cation. 1. Contractor agrees to defend, indemnify and save harmless the City, its appointed and elected officers, employees and volunteers, from and against any and all liability, loss, cost, damage and expenses, including costs and attorney fees in defense thereof because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time resulting there from, 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 or in consequence of or the perfortnance of this Agreement, whether such injuries to persons or damage to property is due to the willful or negligent acts or omissions of Contractor, their subcontractors or agents. This provision shall be inapplicable to the extent the City is judicially found solely negligent for such damage or injury. 2. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. B. Insurance Requirements. 1. The Contractor shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. 2. The Contractor shall provide a Certifccate of Insurance evidencing: a. Automobile Liability Insurance with no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and b. Commercial General Liability Insurance written on an occurrence bases with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury, and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property damage; iiquor liability, and employer's liability. Food & Beverage Agreement Page 11 of 16 3. Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor. 4. The City, including its officials, employees, and volunteers, shall be named as an additional insured on the insurance policy, with respect to work performed by, or on behalf of, the Contractor and a copy of the endorsement naming the City as additional insured, approved by the City's Risk Manager, shall be attached to the Certificate of Insurance. 5. The Contractor's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 6. The Contractor's insurance shall be the primary and non-contributing insurance with respect to the City's insurance and the City shall be given thirty (30) days prior written notice of any cancellation, suspension or material change in coverage. 7. Acceptability of Insurers. Insurance is to be placed with an insurer with a Bests' rating of no less than A:XIII, or with an insurer acceptable to the City. 8. Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. C. Bond. The Contractor shall continuously maintain at its expense an employee dishonesty bond covering collection of fees on the Premises for the benefit of the City. The bond shall be in an amount not less than SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00). The Contractor must additionally provide broad form money and securities coverage both inside and outside the Premises in an amount not less than FNE THOUSAND AND NO/100 DOLLARS ($5,000.00). D. Proof of Insurance. Proof of the above requirements must be provided to the City upon execution of this Agreement. The policies required herein shall provide not less than thirty (30) days prior written notice to the City of any cancellation, expiration, modification, or reduction in coverage or liability limits. SECTION 19. SUBCONTRACTING. The Contractor shall not subcontract its work under this Agreement, in whole or in part, without the written approval of the City. The City reserves the right to review and approve any subcontracts prior to execution to ensure compliance with the provisions of this Agreement. The Contractor shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all terms and conditions as specified in this Agreement. Notwithstanding City approval of a subcontractor, the Contractor shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to the Contractor hereunder. Any subcontracts approved by the City shall be subject to and shall not extend any rights granted beyond those set forth in this Agreement to Contractor. Contractor agrees that if subcontractors are employed in the performance of this Agreement, Contractor and its subcontractors are subject to the requirements of the State of Washington, Workers' Compensation Laws. SECTION 20. CONDITION OF PREMISES. The Contractor has inspected and examined the Premises and all facilities and fixtures thereon and accepts the same in its present condition. The Contractor shall not make any alterations, changes, or additions to any fixtures or equipment Food & Beverage Agreement Page 12 of 16 owned by the City without the written consent of the Director. The Contractor shall not commit, permit, or allow any nuisance, waste, or injury in, upon, or to the golf course, or to permit the use of the golf course for any illegal or immoral purpose. SECTION 21. NOTICE. Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving party hereafter shall specify in writing: City: Director of Parks and Recreation City of Bremerton 345 6th Street, Suite 600 Bremerton, Washington 98337 Contractor: SECTION 22. PAYMENTS TO VENDORS AND SUBCONTRACTORS. The Contractor shall pay timely all suppliers, lessors, and contractors providing services, materials or equipment for carrying out its obligations under this Agreement. The Contractor shall not take or fail to take any action in a manner that causes the City or any materials that the Contractor provides hereunder to be subject to any claim or lien of any person without the City's prior written consent. SECTION 23. BUSINESS LICENSE. Contractor shall obtain a City of Bremerton business license as required by Chapter 5.02 of the Bremerton City Code prior to beginning work under this Agreement. SECTION 24. CONFIDENTIALITY OF RECORDS. The City will, to the extent allowed by law, keep all of Contractor's and subcontractor's financial cost information confidential, unless required to disclose the information as a result of the Washington Public Records Disclosure law, Ch. 42.56 RCW or by court order. SECTION 25. PRIOR CONTRACT EXTENSIONS SUPERSEDED AND TERMINATED. The prior agreement between the City and Contractor for these services had an expiration date of December 31, 2006 which has twice been extended pending negotiation of this agreement. The extensions were executed with the understanding that new terms may be negotiated for a new agreement beginning with the year 2007. Accordingly, this Agreement supersedes the terms and conditions of the fourth amendment extending the 2006 agreement executed on January 18, 2007 and the fifth amendment extending the 2006 agreement executed on or about April 2, 2007 to the extent this Agreement is inconsistent with the prior agreement and amendments and upon execution of this Agreement, said agreement and amendments shall terminate. Food & Beverage Agreement Page 13 of 16 SECTION 26. OTHER A. Costs and Attorney Fees: If, by reason of any default or breach on the part of either party in the performance of any of the provisions of this Agreement, a legal action is instituted, the losing party agrees to pay all reasonable costs and attorney fees in connection therewith. It is agreed that the venue of any legal action brought under the terms of this Agreement shall be in Kitsap County. B. Construction. This Agreement shall be construed in accordance with the laws of the State of Washington. The provisions of this Agreement have been negotiated by the parties, and when interpreting the provisions of this Agreement, there shall be no presumption of draftsmanship for or against either party. C. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. D. Waiver. Failure to insist upon strict compliance with any terms, covenants or conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or relinquishment of such right or power at any time be taken to be a waiver of any other breach. The City and the Contractor shall not be deemed to have waived any breach of this Agreement by the other party except by an express waiver in writing. An express written waiver as to one breach shall not be deemed a waiver of any other breach not expressly identified, even though the other breach is of the same nature as that waived. E. Amendment. The City and the Contractor may amend this Agreement at any time only by written amendment executed by the City and the Contractor. The City and the Contractor agree that this Agreement shall be amended at any time if, in the opinion of bond counsel to the City, such amendment is necessary to preserve the tax exempt status of interest on obligations of the City issued to finance the Golf Club. F. Entire Agreement. This Agreement contains the entire agreement between the parties with regards to the subject matter set forth herein. There are no other representations with regards to the subject matter, either orally or in writing. From January 1, 2007 until execution of this agreement, this agreement supersedes the prior agreement between the City and Contractor for these services which had an expiration date of December 31, 2006 and which has twice been extended by amendments on January 18, 2007 and on or about Apri12, 2007 pending negotiation of a new agreement. Upon and following the execution of this Agreement, this agreement will replace the prior agreement in its entirety. G. Nondiscrimination. Contractor shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, physical,� mental or sensory disability except in an employment action based on a bona fide occupational qualification. Food & Beverage Agreeme�:t Page 14 of 16 H. Liens. The Contractor agrees that it shall pay, or cause to be paid, all costs and expenses for work done and materials delivered to the Premises and shall keep the Premises free and clear of all liens for work performed thereon. I. Remedies. Rights under this Agreement are cumulative; the failure to exercise on any occasion any right shall not operate to forfeit such right on another occasion. The use of one remedy shall not be taken to exclude or waive the right to use another. J. Washington law and Forum. This Agreement shall be construed according to the law of the State of Washington. Any litigation between the City and the Contractor arising under this Agreement or out of work performed under ttus Agreement shall occw, if in the state courts, in the Kitsap County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the Western District of Washington. CITY O B TON SCOTT ALEXANDER'S GOLF SHOP, INC. �d(� CARY BOZEMAN, Mayor By: S OTT ALEXANDER Its: ILES�OB.�'r DATE: � lo� - O'� DATE: l Z� � B �x-� . Its: DATE: � �� D / ATTEST: ��e � � � Paula Johnston, rty Clerk �— APPROVED AS TO FORM: RO ER LUBO ICH, City Attorney R:\L.egal\Legal�'deslCurrent Active Files\Gold Mountai everage Agreement - FMAL.doc Food & Beverage Agreement Page 15 of 16 EXHIBIT A Food and Beverage Moveable Furnishings Meat slicer Soup warmer 1 Service bar Silverwaze service for 400 6 dozen Salt & pepper Glassware for 300 (coffee, water, champagne, wine) 2 dozen Coffee thermoses Bus tubs Table skirting 13 4 dozen Plastic pitchers 2 Desks P.O.S. system 3 Coat racks Dish racks Sheet pans Pot & pans Hotel pans Misc. small tools: Quisinart, Burr mixer, spats tongs Menu covers 8 wood highchairs Box light (proxima) Portable Screen 8'x 10' Serving platters 10 lg Chafers (11) Banquet Plates 300 B&B plates 450 Baskets misc. 15 Vacuums 3 Copier E studio 45 Fax machine Office jet v40 2 Computers with monitors and printers 6 Office desks Butane burners 2 Safes Speed racks 3 P.A. system & speakers , Cordless microphone system Pressure washer Rug shampooer Bus tray 20 Dish machine Food & Beverage Agreement Page 16 of 16 �.��rE suan�rr�rE� Dcccmbcr 1, Z009 � � :�GENDA B1LL CiTY OF BREMERTON -= = CITY COUNCIL ..........................................................................................., SUBJECT: Approval ofExtension of Committee Meeting Date� December 9, 2009 Contract with Diamond Parking for Parking COUNCIL MEETING Datc• December 16, 2009 Enforcement Services Department Financial Services Presenter Carol Etgen, City Clerk Phone. 473-5323 SUMMARY: The contract with Diamond Parking for general parking enforcement services expires on December 31, 2009. It is proposed that the agreement be extended on a month-by-month basis for six months to allow for a full analysis of the parking review study. The proposed agreement is for the same base management rate of $18,689 per month with an incentive fee of two (2) percent also carried forward. ATTACHMENTS: Professional Services Agreement FISCAL IMPACTS (Include Budgeted Amount): $18,689 per month (budgeted) APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: — � COMMITTEE CHAIR COUNCIL PRESIDENT: < < CONSENT AGENDA`' __- u1 � e � �� GENERAL BUSINESS � �y1.� PUBLIC [-�ARING ❑ �.,�' RECOMMENDED MOTION: Move to approve the second amendment to the Professional Services Agreement with Diamond Parking for parking enforcement services and authorize the Mayor to tinalize and execute the agreement with substantially the same terms and conditions as presented COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continuc ❑ No Act�on SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT DIAMOND PARKING SERVICES, LLC WHEREAS, on March 6, 2007, the City of Bremerton, a municipal corporation of the State of Washington, "City" and Diamond Parking Services, LLC., a Washington corporation, "Contractor" entered into an Agreement for professional services ; WHEREAS, on October 8, 2009 Sections I and III of the Professional Services Agreement were modified by a Modification Agreement; and WHEREAS, the term of the Professional Services Agreement commenced on January l, 2007 and shall terminate on December 31, 2009; and WHEREAS, the parties desire to amend the Agreement to extend the term through June 30, 2010; NOW THEREFORE, for mutual consideration, City and Contractor agree as follows: Section 2 of the Agreement is hereby amended to extend the termination date of the Professional Services Agreement on a month to month basis through June 30, 2010. Unless the parties notify each other of an earlier ternunation date pursuant to the terms of the Agreement, the Agreement shall be considered to be renewed automatically each month during the extended term. All other terms of the Agreement not specifically amended herein shall remain in full force and effect. CITY OF BREMERTON DIAMOND PARIaNNG SERVICES, LLC. Pariy Lent, Mayor By: Its: DATE: DATE: � APPROVED AS TO FORM: ROGER LUBOVICH, City Attorney ATTEST: Carol Etgen, City Clerk Y Amendment to Projessronal Services Agreement — Diamond Parking DATE SUEiMITTED: 12/02/09 AGENDA BILL C[TY OF BREMERTON CITY COUNCIL .......................................................................................� SUBJECT: Professional Service Agreement Committee Meeting Date: 12/09/09 between the City of Bremerton and Lorax COUNCIL MEETING Date: 12/16/09 Partners for Design, Management and Department: Economic Dev. Marketing of Park Ave. Plaza Presenter: Gary Sexton Phone: 360-473-5282 SUMMARY: Professional Services Agreement for architectural, engineering, project management and marketing for Park Avenue Plaza parking structure, plaza design and retail marketing. ATTACHMENTS: Park Avenue Plaza Garage Professional Service"s Agreement FISCAL IMPACTS (Include Budgeted Amount): Agreement is for $500,000. Budgeted in State Appropriated Local Revitalization Funds and State of Washington Capital Development Grant administered by CTED, contract #08-961U5-014. APPROVALS: DEPARTMENT DIRECTOR: � CITY ATTORNEY: FINANCE DIRECTOR: � MAYOR: s �1 COMMITTEE CHAIR � COUNCIL PRESIDENT: ' . ,, ` '� ' _ CONSENT AGENDA ❑ GENERAL BUSINESS f � PUBLIC HEARING ❑ RECOMMENDED MOTION: Move that the City approve the Professional Services Agreement with Lorax Partners and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Move to amend Professional Services Agreement between City of Bremerton and Lor� Partners for Design, Management and Marketing of Park Avenue Plaza. by removing the third paragraph, page 6 of 9. See amended version below: 'fhc PDMM shall submit regular billing statcments detailing work performed and amount charged on each task or portion thereof. "fhe d��scriptions shall conform to and tall within the categories set out in thc Scope oF Work and/or Cce Schedule. Upon receipt of a conforming billing xtatemcnt, the Ciry shall promptiy process payment. PROVID�D, HOWEVF,R, the City reserves thc right to prioritize scoped work and accelerate and/or dclay work tasks. PDMM shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope oF Work or amowt of compensations is modified in writing signed by the City. as-farsigning�+ um, � . y`tfie-BremeFfc+n-EitY S. PROVIDED BY OTHERS: The following are excluded from PDMM Scope of Services: • Surveying • As-built or record dnwings. • G�technical Consultants • Construction and instatla6on. • Special studies including but not limited to: Water quality analysis, wind studies, environmental impact reports, etc. � � • Sales tax or any other applicable taxes. • Special petmits and fees. , • Tes6ng and inspecrion 6. INSURANCE: PDMM shall procure and maintain for the duradon of the Agrament, insurance against claims for injuries to persons or damage to property which may arise ftom or in connection with the performance of the work hereunder by the PDIvIIv[, its agents, representadves, emp(oyees, sub-consuttants or sub-Consultanu. Before beginning work on the project described in this Agreement, ihe PDMM shatl provide a Certificate of Insurance evidencing: �ommercial Ceneral Liabilitv insurance written on an occwrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for per�nal injury, bodily injury and properry damage. Coverage shall include but not be limited to: btanket contractuat; products/completed � operationsJbroad Form property damage; explosiun, collapse and undery,rcound (XCU) if applicable; and cmployer's liability; and Excess Liabilitv insucance with limits not Iess ttwn {,000,000 limit per occurrence and aggregate. Professioaa! Liabilitv insurance with limits no less than $1,000,000 limit per occurrence%laim. Brcmerton/Locax Partners, I.LC Park Avenue Plaza Garaae Pg6of9 PARK AVENUE PLAZA GARAGE AGREEMENT "I'his professional services agreement is entered into between the City of F3remerton ("City") and Lorax Partners, LLC ("PDMM" — Project Designer, Manager, and Marketing") as follows: 1. PROJECT DESCRIPTION: There are tive components of the project and possible four phases: City Owned garage (final stall count to be determined; 175 to 440 stalls) and City Owned plaza will be Phase One; office pad (approximately 12,000 SF) is Phase Two; cinema pad (approximately 43,000 SF) is Phase 3; retail pad (approximately 6,000 SF) is Phase 4. Scope of Work (marketing) will include development of marketing materials (renderings, schematic plans,) for the cinema and retail pads. Scope of Work will include complete Construction Documents for Garage and Plaza (Phase One) as well as Conceptual Design for office pad (Phase Two), cinema pad (Phase Three), and retail pad (Phase Four). Conceptual Design elements of Phase 2, 3 and 4 will include documentation of exit pathways; vertical conveyance; water proofing; structural loads (gravity and seismic); utilities (water, sanitary sewer, storm sewer, gas, power, telephone, cable). The PDMM will enter into separate Contracts with each design professional. The PDMM expects to have contracts with the following design professionals: O Architectural Services O Structural Engineering O Civil Engineering O Mechanical O Electrical 2. SCOPE OF WORK: PDMM shall be responsible for the following: (i) The preparation of (or causing the preparation o� all design, schematics, plans and specifications, site plans, interior design layouts, grading and engineering plans, studies, reports, plats and other information necessary to carry out the purpose of designing and entitling the Project in preparation for the Project to be released for bid to general contractors. Contract directly with the each design consultant, lead the project vision and manage the design/construction process with the design team through the bidding process. The initial estimate for demolition site development and construction of the 350 automobile � garage, plaza, retail and office plaza substructure and utility run, landscaping and plaza amenities is Six Million Eight Hundred Thousand Dollars including tax. That estimate may only be adjusted by written approval of the City Project Manager at the completion of each phase. PDMM shall provide an updated written estimate at the end of each phase. It shall be PDMM responsibility to provide value engineering and design to stay within the approved construction maximum cost allowance. Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg2of9 (ii) Provide schematic design drawings for other projects on the site to include: cinema, oFfice pad and retail pad. (iii) Construction Drawings. PDMM shall cause the Architect and other design consultants to prepare the Construction Drawings and Detailed Speciftcations for the Project for the City's Project Manager's review and approval. 'Che intention of the parties is to cooperate in good faith to provide a completed design which meets all Requirements of Law and is consistent with all Project design and cost requirements and the building quality reflected therein. (iv) PDMM shall cause design services to be performed by qualified architects, engineers and other professionals. The following entities are intended to be retained in connection with the Project: a. Architect: b. Structural Engineer: Exeltech Inc. c. Civil Engineer: Exeltech, Inc. d. Mechanical Design-Build Engineer: Stirrett Johnsen, Inc. e. Electrical Design-Build Engineer: TBD In order to complete the Project, DCPM shall have the right to select other professionals as necessary or desirable for the design, permitting, and development of the Project and shall have the obligation to recommend Contractors for the future bidding process. (v) The PDMM shall oversee all design work done by the Architect and other design professionals for the design and development of the Project. PDMM shall expeditiously review design documents during their development and advise on proposed site use and improvements, selection of materials, building systems and equipment and methods of Project delivery. PDMM shall provide recommendations on relative feasibility of construction methods, availability of materials and labor, and time requirements for procurement, installation, construction and factors related to construction costs including, but not limited to, costs of alternative designs or materials, budgets and possible economics. (vi) PDMM shall provide the vision, design, layout and marketing of the Plaza including possible Cinema and Retail Pad for future sale or development. This shall include creation of renderings, site plans and specifications to the pads as necessary to market the sites. (vii) PDMM shall lead the procurement of the bidding process for a contractor. Create a list of potential construction bidders' interest in the Project; establish bidding procedures, issue bidding documents to bidders, conduct pre-bid conferences with � prospective bidders and field questions from bidders and issuance addenda as necessary. Work with the City's Project Manager on the future contract document, and then manage the contractor through the completion of the project as an owner's representative. Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg 3 of 9 (viii) In consultation with the Project Manager, the PDMM shall oversee the course of construction and shall conduct such inspections and testing of work to insure that the work of each Contractor is being performed in substantial accordance with the requirements of the Contract Documents in a good and workmanlike manner, free of defects and deficiencies in work, and free and clear of all liens. �'he PDMM shall reject all work which does not conform to the requirements of the Contract Documents and cause corrective action to be taken. (ix) The PDMM shall develop and implement procedures for the review and processing of applications by Contractors for progress and final payments. (x) The PDMM shall secure final close out information from General Contractor to include but not be limited to: warranties, as-built drawings, lien releases, etc. 2.A. MARKETING SCOPE OF WORK: (i) PDMM shall direct the vision of the Project with the intent to sign a future Cinema owner to the completed Cinema Pad on the garage. This effort will include the design, planning and construction of the garage that best serves the needs of the City of Bremerton, but also to maximize the viability of the Pad for the possible future Cinema's requirements and other retail uses. These needs include but are not limited to the following: pedestrian and vehiculaz access, parking, efficient layout for constructability, visibility and signage, connection to traffic patterns, link to additional retail immediately around the site as well as strong link back to the core of downtown. � (ii) Lead the vision, design, layout, marketing and brokerage representation of the Cinema and Retail Pad for future sale or developrnent. This will include, but not be limited to the following: ■ Undertake an active and vigorous program to lease or sale the Pads to first class retail tenants, developers or Cinema owners. ■ Development of renderings, site plans and specifications to the pads as necessary to market the sites. ■ Creation of a brochure for the project and coordination of all necessary functions in the distribution of all marketing materials to local and national brokers, as well as active national Cinema owners and developers. ■ Tour and travel as necessary and approved by the City's Project Manager to meet with Cinema owners, developers and brokers, tour existing facilities and attend national, regional and local ICSC conventions to market the site as appropriate. ■ Cooperate with other brokers and leasing specialists by keeping them apprised periodically on the status of the Project. � ■ Promptly respond to any request for retail leasing proposal relating to the Pads, which response shall be forwarded to the City's Project Manager for review and comment before being forwarded to a prospective user or its representatives. ■ PDMM shall advertise availabitity of the Pads by signage, brochures, circulars, mailings, advertisements and/or by engaging in other appropriate forms of Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg4of9 advertising subject to the mutual agreement with the City's Project Manager. Cost sliall be paid by the City. ■ PDMM shall meet with the City's Project Manager as necessary or appropriate in order to plan the marketing program for the Pads and to keep the City's Project Manager tiully advised as to the status of such program. ■ Coordinate the negotiations of letter-of-intents, leases or purchase and sale contracts from prospective tenants and developers with the City's Project Manager. 3. SCHEDULE (PHASE ONE): Anticipated schedule of the project for City Owned portions (garage and plaza) is as follows: l. PDMM / City Agreement signed 9 Nov 2009 2. Schematic Design Complete 14 Dec 2009 3. Design Development Complete 8 Jan 2010 4. Construction Documents Complete 8 Mar 2010 5. Out to Bid 8 Maz 2010 6. Bid Complete Demo existing building (sepazate contract) 8 Mar 2010 7. Bid Award 15 April 2010 8. Permit / Bidding / GC Contract 25 April 2010 9. Begin Construction 26 April 2010 10. Complete Garage & Plaza 4 Apri12011 4. DISTRIBUTION OF COSTS AND PAYMENT SCHEDULE: The distribution of fees and payment schedule is as follows with reimbursable expenses paid in addition, directly by the City: The total fee for services will be Eight Hundred Thousand Dollars ($800,000). Architectural/Engineering Distribution % TOTAL 385 000 Schematic design: 20% Design Development 25% Construction Documents: 35% Construction Administration: 20% Project Management, Marketing, Coordination, Overhead 415 000 Project Management $156,000 Project Coordination, Marketing $234,000 Oftice expense and overhead $25,000 • Payment to be $22,000 per month tior 17 months • Final billing at project completion of $41,000 Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg5of9 The PDMM shall submit regular billing statements detailing work performed and amount charged on each task or portion thereof. "I'he descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a conforming billing statement, the City shall promptly process payment. PROVIDED, HOWEVF,R, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks. - PDMM shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensations is modified in writing signed by the City. PDMM may be paid a bonus for signing any retail purchasers/leasers in such sum, if any, at the sole discretion of the City of Bremerton, as approved by the Bremerton City Council. 5. PROVIDED BY OTHERS: The following are excluded from PDMM Scope of Services: • Surveying • As-built or record drawings. • Geotechnical Consultants • Construction and installation. • Special studies including but not limited to: Water quality analysis, wind studies, environmental impact reports, etc. • Sales tax or any other applicable taxes. • Special permits and fees. • Testing and Inspection 6. INSURANCE: PDMM shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the PDMM, its agents, representatives, employees, sub-consultants or sub-Consultants. Before beginning work on the project described in this Agreement, the PDMM shall provide a Certificate of Insurance evidencing: Commercial General Liabilitv insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and Excess Liabilitv insurance with limits not less than 1,000,000 limit per occurrence and aggregate. Professional Liabilitv insurance with limits no less than $1,000,000 limit per occurrence/claim. Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg6of9 Any payment of deductible or self insured retention shall be the sole responsibility of the PDMM. All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which may be provided on a"claims-made" basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements. The PDMM's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The PDMM's insurance shall be primary insurance as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. 7. ADDITIONAL TERMS PDMM represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices in effect at the time such services are performed. PDMM represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. PDMM and its personnel are independent Consultants and not employees of the City. PDMM and its personnel have no authority to bind the City or to control the City's employees and other Consultants. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub- Consultants of the Consultant. PDMM will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-Consu(tants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent Consultants to perform the same or similar work. As an independent Consultant, PDMM is responsible for its own management. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Consultant or its personnel. Qremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg7of9 As an independent Consultant, PDMM is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. 'I'hese taxes and fees may include but are not limited to State industrial insurance, E3usiness & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared detinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Consultant. All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1 st class mail, or by personal service, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. City Address PDMM Address 45 6�' St.. Ste 600 Bremerton, WA 98337 Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. ' The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. Consultant shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. Either Party may terminate this Agreement by sending a written notice. In the event of such termination, PDMM will be entitled to receive payment for all work performed to the date of the termination, and PDMM will refund any money that they may have received in advance of work that they and for their consultants have not performed up to the time of the termination. Neither party will be liable for indirect, consequential or punitive damages, nor for lost profits. Upon termination, the City has the right to assume any and all subcontracts of PDMM on the project and ownership of all materials generated therein. Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg 8 of 9 f The provisions of this Agreement are severable and the inva(idity of any provision of this Agreement will not affect the validity of the remaining provisions of this Agreement. No failure or delay of either party to exercise any power given under this Agreement or to insist upon strict compliance by the other party of any obligations will constitute a waiver of any of the party's rights to demand exact compliance with the terms of this Agreement. , This Agreement will be binding on the heirs, executors, administrators, successors and assigns of the respective parties. This Agreement contains the complete agreement and understanding between the parties and supersedes all prior oral or written proposals, agreements or communications with respect to the subject matter of this Agreement. This Agreement may only be modified in writing signed by both parties. Any individual signing this Agreement on behalf of an entity, represents and warrants that they have the authority to execute this Agreement and that this Agreement will be binding. CITY OF BREMERTON LORAX PARTNERS Signed Signed Title Title Date Date Bremerton/Lorax Partners, LLC Park Avenue Plaza Gara�e Pg9of9 DA"I'E SUBMITTED: 1?/02/09 �� AGENDA BILL � C[TY OF BREMERTON _ CITY COUNCIL .......................................................................................� SUBJECT: Design/Build Agreement Committee Meeting Date: 12/09/09 between the City of Bremerton and Dillon COUNCIL MEETWG Date: 12/16/09 Works for custom sculptures at 4` Street and Department: Econ. Development Pacific Avenue Presenter: Gary Sexton Phone: 360-473-5282 SUMMARY: Dillon Works will design, engineer, fabricate, deliver and install a pair of custom sculptures on opposite corners of 4� and Pacific. The sculptures are approximately 14 feet tall and depict a whimsical fish catching a fisherman. Dillon Works will provide all design, labor, materials, and equipment necessary to complete the project. ATTACHMENTS: Design/Build Agreement between the City of Bremerton and Dillon Works and sample drawings of the sculptures. FISCAL IMPACTS (Include Budgeted Amount): Contract total, including sales tax is $250,000.00. Funded in full through the Capital Development Grant administered by CTED, contract # 08-96105- 014. APPROVALS: / DEPARTMBi�1T DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR __,_ ` ' � MAYOR: �� COMMITTEE CHAIR COUNCIL PRESIDENT: � CONSENT AGENDA ❑ , � GENERAL BUSINESS� PUBLIC HEARING ❑ RECOMMENDED MOTION: Move that the City approve the design/build agreement with Dillon Works for the custom sculptures at 4` and Pacific, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action DESIGN/BUILD AGREEMENT BETWEEN THE CITY OF BREMERTON AND DILLON WORKSI INC. FoR CUSTOM SCULPTURES AT 4 S� PACIFIC Based on original concepts by Communication Arts, Inc. and revised fish and man concepts dated November 12, 2009, Dillon Works, the parties agree on the following: Scope of Work. Dillon Works will provide all design, labor, materials, and equipment necessary to design, fabricate and install one (1) pair of sculptures to be displayed outdoors at two specified locations on opposite street corners at 4�' & Pacific Streets, in Bremerton, WA. Dillon Works' Scope to include: 1. Design Development (Phase 1)— Based on the concept of one (1) Salmon and one (1) Fisherman, as reflected in Attachment "A" Dillon Works will provide: a. Two (2) to three (3) color presentation drawings that will: i. Further define the overall look of the Sculptures. ii. Clarify the position/layout on the street corner. iii. Further define approximate dimensions of components. iv. Further define the palate of materials and finishes. b. One (1) scale model for each sculpture. 2. Engineering and Shop Drawings (Phase 2)— Based on the City's approval of the Design Development Phase (1 — above), Dillon Works will provide: a. Detailed shop drawings illustrating fabrication methods, materials, and attachments. b. Detailed structural design of both the sculptures and footings, stamped/sealed by a structural engineer licensed in the state of Washington. c. Upon approval by the City, the Scope of Work shall be fixed and final for purposes of design and engineering. , 3. Fabrication (Phase 3)— Based on the City's review and approval of Engineering and Shop Drawings, fabrication will commence at which time Dillon Works witl provide: o. Fabrication of the sculptures in accordance with the Engineering and Shop Drawings utilizing the � materials and methods, including attachment methods, all as defined by the Structural Engineer. 4. Delivery and Installation (Phase 4)-- Delivery and installation will commence based upon: a. The City's review and acceptance, at Dillon Works fabrication site of the fabricated structures and elements (3.a — above), and b. Dillon Works conducting a site inspection confirming the installation sites and surrounding areas necessary for delivery, mobilization and installation are available and ready for installation. Upon acceptance of the site and surrounding areas, Dillon Works will provide: i. Delivery of the Sculptures to the installation sites. , ii. One (1) pre-install meeting on site for part of one (1) day. iii. One (1) site survey for two (2) persons on site for one (1) day. iv. One (1) Dillon Works' supervisor and a crew of four (4) on site for three (3) days. v. Post installation cleanup. Design/Build Price. Materiats................................................................................................... $ 104,908.00 WA. State sales tax (9.5%) ....................................................................... $ 9,966.00 Labor........................................................................................................ $ 135.126.00 Total.......................................................................................................... $ 250,000.00 Tax. The above-mentioned price includes WA. State sales tax (on materials only), but does not include any other applicable taxes. Buyer will be responsible for any additional taxes. Packaging 8� Shipping. The above-mentioned price includes packaging, and shipping F.O.B. Destination (Bremerton, WA). Installation. The above-mentioned price includes installation. Schedule. See attached CPM. Terms. Dillon Works will require a signed contract and twenty-five percent (25%) mobilization payment upon execution of the contract, a twenty-five percent (25%) payment upon completion and City approval of Engineering and Shop Drawings Phase 2, forty percent (40%) upon completion of Fabrication (Phase 3), and prior to shipninq, and the remaining ten percent (10%) net twenty (30) days after completion of Installation (Phase 4). Exclusions. Excluded from the Scope of Work: • All taxes, except WA. State sales tax on materials • Weekend, holiday, and 2nd or 3rd work shifts • Liquidated damages and/or completion penalties • Bonds, testing, surveys, and inspections • Provision of structural footings/cast in place concrete, and foundations • Flame-retardant materials unless specifically identified in the written scope of work • All design, provision, and/or installation of lighting, unless specifically identified in the written scope of work • Traffic control and security during installation • Any changes to the Scope of Work requested by the City after approval of the Engineering and Shop Drawings � Concealed, unknown or latent conditions at the installation sites which differ materially from those ordinarily encountered and that materially hinder or impair performance of mobilization, installation, or storage of equipment used by Dillon Works! Inc. General Assumptions: • Cost is based on one mobilization, 1 st shift, regular work hours • Temporary power, lighting, water supply and facilities provided by owner • If Dillon Works! Inc. is delayed in the progress or completion of the work due to any act, occurrence or condition beyond Dillon Works! Inc.'s control, then the estimated or agreed completion date, if any, shall be extended for a reasonable period of time. Dillon Works! Inc. shall be entitled to additional compensation for all ° costs and expenses occasioned by the delay. • Temporary and/or winter protection provided by owner � Clear, continuous and uninterrupted access to all installation sites and surrounding areas required for storage and mobilization • Staging area (approximately 50' x 50') provided by owner within immediate area of installation sites for material 8� equipment storage 0109-0103.3_db_bremerton public art (4).doc November 17, 2009 Page 3 of 4 If this project agreement is satisfactory please sign, date and return it to us. Upon execution by authorized representatives of Dillon Works! Inc. and the City of Bremerton, this "Design/Build Agreement" together with its attachments and addenda shall become a binding and enforceable contract The undersigned represent that they are the authorized representatives of the parties. Dillon ks! Inc. By: B n Leonard, ' tor of les & Marketing � Datg: NnvPmhpr 1 Q 2009 City of Bremerton gy: Date: 0109-0103.3_db_bremerton public art (4).doc November 17, 2009 Page 4 of 4 F t / ±t � ` �}' u�. � ; C � .„: 5 y� • S t r .� � vAj �ta o �b� y�; :� � ��a � � <� _ - � �� b ��_ � ' rfig1�:.,��, c z „� x � �� . ,// ` � `v � �,��-.. :A;,, 5 Q -- "��' } ' � ^ :,-� — 7e.. � '� '�'��5 � c �� /� rn 3 rn . 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This is the drawing he requested from Phil Williams. Ed Aban From: Sheree Jankowski Sent: Tuesday, December 15, 2009 7:52 AM To: Eduardo Aban Subject: 1 12/15/2009 $� � � . i � �I � 3 I � a I � I i �� ► � I , E q � I L U � I I � N h ('� I � i � � „fyy` I I 1� fT.iT. �.T ,_F � � f �'�' `�� > �� 4 � j �, . . , �r - ...Z' t ° _ r, .a'i - W � �I31�od _ !� + � �=� rr � v w �� ... � ; k L � ' 1 1 + �' w£ � — ' r . + . "}, t =`� ... � 5.Y „ :J � � -_.. � l L _ h T _ t^h,: :'-� =C�' t _ . � r ' .. M m . � L� � :-r' ..� r'.;' ' _ - _ .�' $ :' N � 4 O ' ' -'��E:�. �l :`. j j4 TI ��- mnSr Y� DI • �g,` � �— � �' t _____L r_ r �� tt , � �� I + � � p ❑ - � � o � � � i � o i � � d 'tt � — I I� i � ° � I� � � I I -'� , � e ,o�=„i Page 1 of 1 Lori Smith From: Lori Smith on behalf of City Council Sent: Monday, December 14, 2009 3:37 PM To: City Council Subject: FW: Citizen Letter -"Fish Statue is Bad Idea (Randy Damewood) Mr. Damewood, Thank you for your comments, which I have provided to the Council Members as well as Mr. Sexton for their review and consideration. �o�. S,r,.,x�. Lori Smith Legislative Assistant Bremerton City Council (360) 473-5280 From: Randy Damewood [mailto:randydamewood@msn.com] Sent: Monday, December 14, 2009 3:32 PM To: City Council Subject: Fish statue is bad idea Dear City Council and Gary Sexton, Please do not go ahead with plans for the "Fish catching a Man" statue for downtown Bremerton. The sketches in the paper make it look like more corporate ticky tack. The parks you have installed already are overdesigned and would be a lot more enjoyable if they were created by real landscape artists. Did you ask Dan Hinkley (formerly of Heronswood and a Kitsap resident) for some input on the garden parts of your designs? He knows a lot of garden designers and artists who create sculptures for public spaces. (One such terrific artist is Steve Jenson of Seattle). Gary Sexton is very good at getting pro�ects completed, but leaving design elements up to a city official isn't always the best option. Many of the mature-sized plants in those gardens are showing severe signs of stress. Thanks for reading. Sincerely, Randy Damewood 2022 15th St Bremerton, WA 98337 12/ 14/2009 Page 1 of 1 Lori Smith From: Lori Smith on behalf of City Council Sent: Monday, December 14, 2009 2:56 PM To: '44bru44@tscnet.com' Subject: FW: Citizen Letter - Art Work Selection (Bruce Fields) Mr. Fields, Thank you for your comments, which I have provided to the Council Members for their review and consideration. �C�. 5•�. Lori Smith Legislative Assistant Bremerton City Council (360) 473-5280 From: BR Fields [mailto:44bru44@tscnet.com] Sent: Monday, December 14, 2009 1:46 PM To: City Council Subject: art work selection As rightly stated by many already, the current art work you will be discussing of a fish and fisherman are not representative of our community. Bremerton, the City, our residents, and the workers of our surrounding community are all about or nations' defense. The city should be relishing our duty in supporting the role our defense installations play in maintaining our way of life. A Modern depiction of a white color badged worker, a waterfront trade worker and a naval officer would better represent a pride of service and sense of community we should pro�ect to tourists and potential tourists. Send the selection team back to try again. There are metal sculptors around that could rise to the chance. Further, I continue to see the folks in authority concentrating on Warren Ave. to the East with wine and cheese visions and not recognizing the reality of areas to the north and west of there and the beer an pretzel needs. Lets maintain our infrastructure and public safety, keep utility costs under control and stimulate business opportunities. This art proposal is just too fishy. Bruce Fields Bremerton Native, city resident 12/ 14/2009 Page 1 of 1 Lori Smith From: Lori Smith on behalf of City Council Sent: Tuesday, December 15, 2009 9:31 AM To: City Council Subject: FW: Citizen Comments - Proposed Art for Pacific (Tom Baker) Attachments: Port Angeles Art on the Town.pdf; Wentachee Collection.pdf Mr. Baker, Thank you for your comments, which I have provided to Council Member Dianne Robinson per your request. I have also provided a copy to the other Council Members as additional information for them to consider. f.�. S.Y,��. Lori Smith Legislative Assistant Bremerton City Council (360) 473-5280 From: Tom Baker [mailto:tombaker07@att.net] Sent: Monday, December 14, 2009 8:27 PM To: City Council Subject: Proposed Art for Pacific Attention Dianne Robinson: I would like to comment on the proposed statues for Pacific Ave as reported on in the Kitsap Sun. Public art can be an important component of a community Here is an example of two Washington cities that have public art, both have walking tours and maps for installations throughout their downtowns. Port Angeles: I have attached a brochure ftom the Port Angeles Art On the Town Walking Tour Guide. Please print and look carefully at the second page listing all the locations. Its comprised of many small installations instead of one large installation. Note that many of the artists are local to Port Angeles. Wenatchee: The Wenatchee public art is more extensive than Port Angeles, but both are smaller installations spread out throughout each city. My favorite is the "Chance Encounter with a Long Taded Weasel". Please refer to attached brochure. I would like to know if the City of Bremerton Arts Commission has had any input to this proposed project. I feel the project is too expensive for the one location, and more benefit would be derived from many smaller installations in various locations. Additionally, the proposed statues do not have any direct retationship to the history of Bremerton. The public art in Port Angeles and Wenatchee may not have a direct relationship either, but the art is so varied in content and scope that it is interesting, and makes a wonderful walking tour. Thank you for your consideration. Tom Baker 1137 Hewitt Ave Bremerton resident since 1979 12/15/2009 Page 1 of 1 Lori Smith From: Andrea Spencer Sent: Tuesday, December 15, 2009 9:56 AM To: City Council; 'tombaker07@att.net' Cc: Pam Bykonen Subject: RE: Citizen Comments - Proposed Art for Pacific (Tom Baker) Mr Baker- Thank you for your comments and you bring up some very good points. The Arts Commission has commissioned (currently being created) several smaller metal sculptural pieces that are going to be installed along Pacific Avenue in various places, making this street our equivalent of an "outdoor sculpture park." The Commission has also worked with local artists to reproduce their artwork on 2'x4' banners that will be prominently displayed on our lightpoles first in downtown and hopefully in other parts of the city — these are also in production and we are hopeful that they will be installed in January. I believe that all of these things when added to the other revitalization that has happened in downtown will draw people to the area. IYs complicated to explain, but the sculpture that is contemplated by the Council at this time (the Fish and Fisherman) will be paid for out of State capital dollars (a grant) that is a separate funding source than our 1% for the Arts program, and thaYs why the Arts Commission has not been involved. The decision to commission the work rests with the City Council. If you would like to see some of the works that have been commissioned so far for Pacific Avenue, the Arts Commission clerk Pam Bykonen would be happy to show them to you. She's cc'd on this message so you have her email or you can call her at 360.473.5202. Thank you for your support of art and I hope that you have a great day. Andrea �Cnc�rea .0 S�iencer, �C9CP Director of Community Development City of Bremerton 345 6th Street, Suite 600, Bremerton WA 98337 Voice 360.473.5283 � Fax 360.473.5278 Want to be the first to know what's going on in Bremerton? Slgn Up fOr e-News: http //www.ci bremerton.wa.us/eNews/signup.php 12/15/2009 i i -;- - - I ARTon tF�e town �,o�u,e��m� �'�fi��'`"="�^""�: ; rti,�-=.,;�.,';� tr� fart�By a�+e�ted, �v eMra.na�, the s�anr '`�' ve n u e � � � ��m��,�� A . _ 8 arnst Bob stokes �ad� m n,e nau, m� an a��g hadamop wr «a e�u, ye� '- �w..� ��_ OCI; ��CI �__� _ y r �� Tha yeai# aQta# f� wak in vabus medfure fiom rea�t Oo �-''�� a�strad �� ,, � � � � AIZTonthetown��mv�a+e�ata�es . . ' ��.� `- —' • � I oow�mown l�eoaenon ra u,e �p�r�aR aa�e mmrc�ty ana au _ E ,� ��"'�"p''�°"�"��"°"°°`"°�"�`°` . ,=� Outdoor Sculpt�ire Gaii�ry �� , � ��,�,6��8 • � ; Walking Tour Guide _�� _, � � , YouwlOnatlmCatarrarbeidqeaesaremparnanartd�layard , hae been daw0ad to the �y d Prt ArgpJes. Tlrse wala ha�e r � hmieoq�YiadthraghtlfegsiaoSYydtllepecpledFErtM�,�eks, - �_'- �-j w�' � `� P�9 � uW the flatArgeJes Oot�rt�wn 0.�datlon for .� - �i � � ' t � Y0�/�t 2c _ i�• � � �, -4��•^' ' __ -- � _ L _ _ _ � ' � � _ __ � (S ART on the town Committce ` K ~" ' ° � �. � 1. IOST LOGGER � I was a er, rt of a lo Bab rtarbfdc • aialrs a 9rd�h •]an Flatidc • Bob � - b99 Pa �9, P� tlmber tradition. Rid�ad Sh�has • krtrs Ttdas �-.,: o' �,: ,,. , 2. CORI � SpeedwalWng to tlie Ferty or ... wtAn�es Dwxuamassoaeaan � �� 3. ]ACK and RIJTFI � Older wuple window shopping while walWng. � a. sos ��nduxj padentN a►one waidny tor oompanron to come ouc ot a store. ART on the town .��`� " 5. �cHna� and �ar�e � He is pushing her whedchair up hill whtle dosely joined through Illr�ess and etfort. Our Mission Statement �� o � a_ 6. DANIELLE and IARED � Embradng oouple, side by side, taking in the sights and each otlier. �roeRII4GANONC�pID►GANDaW�IGOdGp�OFAtmWRK :,ri= �- "_ : a _ lDDOY�MUAMP�ORrAMC$B" '�2._.� a� � r��,� � , � J �� , „P-.,,� y . ART on t{�e town InstaQation Sponsors �p ' , ��''� Mr' ��r�•�s�.�em�e�•�gar� � �1. " ,_;� ,.. � � �` ART on t{�e town Pedestal Sponsors ,' �,-.� � '�? � ; ` -• ime uon Nom • meToggav (2) • eem Ba9a • P�ic wm rm�y • ° • _ � I Md�t1�55110P5'$OI�II�.QDI0710b U�IWVBNIIFJIOCA�LTD. ��'....�" r - - - . , j..� � ! � = - � BBPl1 & 91e�rtHn ICrigIY If1 Ma1uy dDpx�lasG Balar' - - - '_� ^ c° � , fsY� ,.� yr;i��"�q; ' M � :��„� `s� v �k� - _ ..,,� NOt'VY�7 RC�rY (2� � VYdO�S NRY' ' PoSL FB1Pld� (2� � - ' ��' �': ., _,,,'.� '� �_ �'"' re ` � � � - _ = ART on the town Site Contributors � �"' � h � �''�'-w�� "'� �''r'� �) � - aya►axcax,pes�aacar�xcnry�s•rseeauon►+om•r�rwea �` ' .''^'. ,,,,� � a��a�uas�' "a�''`�°`� • `a�,a`� x • �=-, `"�` { � . � , �,,,.,'�r' �`!1 � � � �� • , , , '�o'` `+.�, � ,_ � ART on the town Fund Raising Sponsors �.- � •� �.. .. , 7. LILY � PregnaM woman shopping to rest and catch her breath. Neo�&7�np�tiors. Rrst�edaal . F�rtdy 9ne5toie ''� .�: {1SI I■ ` .; .•^'�'! ' -; 8. CARI and BART � Couple having an animated "give and take" dlscussion about where to eat, where bo go, etc. ,, 9. tAURA � Motl�er reaching for erront child. ��'�,{/.�,� �' �' �' �� s 7 rciHi n��.ttF� t �o. Madce� � Young woman sitdng on a Down6own bench. She Is engaged i� and enjoyfng a conversatlon with a ART on the town Partners � ? �x� s Y�9entleman. Rrtage�pa . F ,,,' 11. MICHAEL � Young gentleman leaning against ralUng to underground talidng � woman siGing on bench. p�� n be mailed to: Pat Mgeles Downtown Assoc. ' Y Avenue ot the people is part of the permanent aollectlon vo aw� saz • von a,ye+�s, wa � �s. �� x =+ � a�a'��.��=�?�`v�.��' .•4 . �y" . . s��i��5��"'�-rGir.7sre 3' -,anwc ans*ha osr ��GnXr�ia'Ki� .� ._ . . . I I Y � jl'': 4 t.� �. ' j7:�� !� � F.f/'?R'te' .�. .�r'i Ff '�"� ..) 15 }: _ � � L � � 1 - � �� J ` � � '�� '�� ~ �.. �� ' ��,� r �� '- � �7� • �� r'� ;�,1 i • �; ► ` , ' � f�; `•'�::%� :'� x i :� i ��i ' �tl� °-:. ;'�*,. � '' ! ' ' r� �� = .r r { `'f' � f J .� , a'�,�' �� N ' ��.. J - __`> : , x ,� r r;; `�� 1 � : � � . ._ - . ��R"` . JI .�CYK ` '(� : ��'~ �••: �� `■ ;� � ' �,�� r: � 9��a � ��"�.��?� ' � 'Y i y. " ; df .-:�.`.�� 't'' ( . �. � � �' � 4':,„;�ya `7 �� • y��_ _ � � r. "�7�J . < � I _ .- � � i Y �i:��. ik. .tliii� ,I"�..i .`` r -. � �; - �� _ - _ .iG �. .�. _ Y , . _ � - �f?'! - � _ � YY - . ':; `:. ' :: � �;, N� zr t� r� � � 'ti�� 1 'a n ��. Q ~ `1 Q j - �Z� '35 U�O)U1� - r r .. "L N r t �{ �? _ � ' ir � ^ �� ' "� `ti � �^ _ _ �11.,��. :� Q � .: '7 � � �- � i �a r �:� �• � Y/ �A^.�� 2 T:� 31d03d 3H1 �O 3f1N3Atl '�S I� = � - - = �� T�� .�' . , y � N ,^c -• - - ♦�i° /* �� ' � � � r. '�1 tr� a N v+O I N �j� � � c N .. d: .- � LL LL • � � � . ' � N 'rN ' '.o '� + ' 4�� . ' �(": ' - �: �O .3$ �ep � �� N i�(: N � � ��' � ' N - _ r � � ,-;1� .. + � �� 'r • , �"� ��'.,,` �� s . - - , 1� � t - �� « � � � � C _ - ;� j� M S �k-., ; •�5 ��a4� _ �Y�1tii�r . N � !_ i iu �.... �, � N N N a �#._��.� . ' c E .•' � ` �;: h � �'' �� 1 5ia r' , �;-„ � �~ �y -;,-, l `" ,��/ i "'( ,� L. .� ��Y�✓':� K :�'�f � � 'p �' � �•. � , �, " � � �� i �� ;' N Y�:i � ��'n . ,,. . � �'�1''J� • wili'4/�.' � l. � , A �• I r�1 4�'r' k �r.I ). �� , , � � •... � v ,r ,r ` 4 � , •� � ^ ` � l it• �� , � � � , ' 4 ��h r +� �':� >at, - � «,,,:,rv �r;rr�� , �,� %�. ,; ��' � � ��ar �r ` k � �. ��'� n� • c ��,_ _ � _ ` .° .� «. .:, -'- �� i � _ � �'� I � _. � • r r� �� i � � ^ �_ . .; N • � •�� i � j .��, ' r \ !f{ �1 t;�� r ";� .i 7 = �^ ": ��, �. t_�i4 �� ,1 � ,�1 ' � �• �� .�' � N �� ` � , � �� ,rw- �� '\�f rk� � %r.� r ; � ' •`�1 � . • L, � i `• ' - .�l ,..� :g -�,��?%�': ,., , �� . ti� r l F r'. .'r+• S ��"}', ��.:"`� +��. )� cc' y �� ;{ ,� i � .S - �:� , -', r � .n iu'.'.: kz - k : i �, � r R• 3 '. �. � - +��(�+�.� t ur „ \i ' t�� Y J � �l� #'4 �e'�' ,`tY�� 4i � 14'� �ii•�.l'��, r'^?:'v+ ..:(��Tli� Y., G� \:� � City oF VI/�n�tch�� . u c . o ec o �� .�. ::�� '- � =� � �� -�� ° ' , �. � ��- � � - � �4�....�..� — ' '� � > ��' , � f: - -+� a, -�• � � '� _, ��^� '� . Y , ta . . '+ ��. �a.. ` � ��. �� ' ` r�' �-' " • �,.- ', ,. � ^x.`!V4�`` • � � � a,,-.� � � � � �.+�n�r Za � w� d � ' `� � � ��'� '�^.+ , � . �� . �� S 3:;-�9�'' � ��, '�- ' ' . . .�� 1 y . _ , .0 � � ��1�� u S ��'�� ' _ ' _ y . - - " . _ _ � � �� ,. k � �Welcome to Wenatchee" Entrance Proiect by David Clemons Public art project of stained concrete placed at North Wenatchee Avenue & Horselake Road and at the south exit ramp to Wenatchee Ave. from the George Sellar Bridge. Co/lecdon Listing - Sp�ing, 2009 The City of Wenatchee Arts Commission oversees the citys public art collection which includes public art projects, sculptu�e and wall art on display in parks, downtown, by o� inside the city-owned buildings Funds are also used tn support children s art events, or programs, art workshops, or public performances of music and theater. All capital projects exceeding $75,000 in cost budget pay 1% of the project const�uction costs to the Art Fund (excluding funds from State or Federal sou�ces). A"capital project" is defined as any project paid for wholly or in part by the City of Wenatchee to construct or remodel any public building, structure, park, street, sidewalk, parking facility or utility, or any portion thereof, including permanent fixtures to any buildings within the jurisdiction of the City of Wenatchee. Fo� more information, ca// fhe Arts Commission O�ce at (509) 888-6243. �' The Public Art & Collection �`�� a� � � �/i a � � �A e�� o , ; t 4`' ° � y d �� tl' C'� �� ` 6 0 ^ �O �Pp. a � � s �'�� o 1�.�`� ��'" � 0 0� r a �' � 5� 4 � y � o 6, a ;�k .. '�z z`r ?z k� 7't rv � h r7 ;Y :x -� �k :� �r ',r t: � dr(, � Qay °?'� � Start your tour at � �� "" � o �a° ' � any of the "star" �` �'s � °` � ;r d �. ;� locations. � ' � Just look for the � � co�ors of the stars � '''"`� :: � above each group � `'�� Me ��` o � � of described art. � `� e � �� ?z M � ;� Sr `� ti- � ;, ;.� ;; .r ;x �- =r �',z �r :z � �'o P ��4 `� Z� ;--------__________________�_____.___�. __._.__�___._________.___—_ ___._____.____._�____�____---__.__�.___�_,__.____---__ ' Walla Walla Point & Riverfront Parks � , � _ _ -_' F y ,.„ � �� ' '' � �'� ;�i "Coyote Leading the _ � � - -- Salmon" " _ � - _ - i -� - � _ by Richard Beyer Z >---�-� r' --� Cast aluminum cast sculpture Entrance Ballfields �` a ��=' � in Walla Walla Point Park, to w�ia 1 ��,..��:,ti=� n.: �-` - — � ''� near the swimming area Walla �► �� ,-, ' 4 ---_.'. _ ROtdry/Alli2d ArrS Spo1lSOred Point Restrooms, beach ` l� ,a�,, project, donated to the City in 1988. First Street, Palouse Street & Wenatchee Avenue � "Mountain Spi�it" Wenatchee Avenue ' by �Iliam F. Reese � � Sculpture of mother cougar and 3 ❑ H ��' I -- cubs in bronze, at Hedeen Plaza, � � Plaza ❑ �� First & Wenatchee Avenue The s 2 a �, Hedeen family commissioned this .� �.�,. .,.� a � ,- j piece in memory of their son Eric "4." _ _.. Jl• ' 4.'. � � Columbia � a (a Washington State University graduate) who was killed in the Gulf War. Donated to Ciry, 1998. - (I ' , L�: � "Reflections" - � - �° by Doug Hansen � - � . _ -� "'� r -- ,-� �: � � Art is located at both ends of ,,. ;� the Wenatchee Riverwalk ' � ` �� ' - � ` � Crossing Bridge on First Street � { , -' �= -�- � - " _ �_-.. =� -- � � � �:� ^ �' � from Wenatchee Avenue or +� ---� ` ^ ,�' from the Riverfront Park ; __ !. � - -� entrance off Worthen Street. `"� _- This is a public art project that �"�` � ,� -�--=--� '� includes 8 light poles with � , . "' custom light heads, glass/ `` Y �� metal details, 2 glass and c � metal arches with fiber optic _ �� , - -- - -- lighting, 2005. - � `� - - � 3 ❑ -� _ _,.____---__-____ _ • -- -__--- _ -- - 2� ��.vy0te by Dan Klennert "Found metal" sculpture located at the corner of Wenatchee and Palouse St., 1% for Art Fund, 1998. Wenatchee Convention Center Fountain & Plaza/Interior � � � Wenatchee Center Water � F ' �`� Feature project 1 3 �� by Angela Danadjieva � � � � Corner of Frst & Wenatchee `� `°` Ave. 1% for Art Fund, 1988. 6 - - �'��.�.�t� 3. .,�.; _-..r yy rw - y�` ■ — 4 ` �- .� ' s 7 �- "` -•ze- -�'�- w� $ � �, y' ":�.. � � -� r. ' : y � L , aa� Y i �g� s7,�-'r,� fttl, �` � "rU?v; � ' �� , "Perfect on Petra" by � � •� �� i � - ' •��-�- Ross Matteson � > as� , � s �re ; r Bronze sculpture located �d=� ' � _ �� .�� at the Wenatchee Avenue � .. ,. �� °�� side of the Center Fountain �'� Sunrise �-� ' by Leo Osborne �•. ' at First, funded by the 1% �'; �� - Bronze sculpture gifted to the ��°� ;, l°� for Art Fund & Art on the �° �- City by Wenatchee Centrai Lions rO��Qz, w .[i�p:� _ ..- . mr� •.�:�•.�� . Avenues, 2001. � �''�, � Q�a•� �� a�- Club. Located at the Center �°o a.°`•�� ,� � - _� a�fll�� r > Plaza, 2002. ��.a0�n�v• �. , � 3 �;7� O=O C� t��69�'O�G e � •R ❑ � Or ��m ~ n n d � Robe of the Rainbows by Jan Cook Mack & "Great Biue Suzanne Morris � Heron" Tite art located on the west � b Walter Matia ."� ' Y `� ' 41L wall of the Center's Columbia "Single Point" Bronze sculpture St. entrance. Fundraiser for � by Kevin Pettelle at the Center's • , y � Art on the Avenues, donated Bronze sculpture located Fountain Plaza, � .,�� to the City, 1996. in the stairwell inside the 1% for Art Fund, ;.;, � �� ..c Wenatchee Center, 1% 1998. 'W - �-` , ` � for Art Fund, 1997. � �_ � �.. a Brush work wall sculpture by Ruth Allan & Betty Raymer � Interior ro'ect on main floor of Center, composed p J of vintage brushes, 1% for Art Fund, 1980. � . � - - --- -- - -- �; � - - - � � _ ,�� ' 6 „-�-� s �� . i � � { t � � �' .:� < — �► ' �� _ °� --- �� : =_ � t �� P Y 1�� t`�� I� ` '''� ' � 1 �� ^��`•T"�" � i • � � , � �• _ �m� t � e � � �„ �`, j� _ �,.' - id��vi�. i:�. 'r° � � �'� ---' "Confluence" by Peter de Lory and Kay Kirkpatrick 28 individual panels (glass, photographs, ceramic, and natural wood materials). Loca�ed inside the Center's entrance on Columbia Street between ist & 2nd Streets on the balcony wall. Public art project, 1% for Art Fund, 2000. Mission & Yakima � Mission � „_ � � "Listen...La Lune" ,;,�°"' � —`'—`� 'S by Margaret Grant. �` ��-�� 3 a s 6 1 - Two separate aluminum , ,� Museum� z i , sculpture pieces laated in _,�; Centennial Park, Wenatchee � -; ' Centennial P k - �""` 4 t�Y -�- 2 � � - �� i Ave. & Yakima St., 1% for Art ,�- LJ ` �:;4�y,� �: � =: `=�-� -" � �''� � � � Fund, 1996. �.. } -�"�-� :� ;��;; � � �..;.::��=-� , .: �.�`�,� �� - z �. a ., _,,�_ � 1 � $ _.�- .�.. � L � ��" ' ./ f Y, _ s�r' `�' i �� f� "Tempus Fugit" .�° `�;� �� 1 -r°" i �-�—,-� ("Time Flies'� � r �`�� -0 � � _, , 4 � � ' .£ �f� „�,�, by Jan Uchytil, , - � `�:.-�-��, r� . �, Commissioned �'`�`=' _ - - ' �°� a „ ,•. } � .�:� ' � ' - - �. �-r �.s " r ; ,� metal art piece - - _ - a;� '-� - ��-�=° `� located at the �° � � � ° ° �~� ~ � r Millennium Plaza in - - R ' °;� _ _ - "" �._ �' �"{ the park. 1% for � `� " "Coyote Reading a R -; ;�, _ Art Fund, 2003. ,,;:; �'' Candy Wrapper fi � :� by Richard Beyer ,�, � ,�• .;� ��, � Cast aluminum " � _ � d - sculpture located on the steps of the "�� Wenatchee Valley Museum and Cultural .`" '��.i�� "Chance Encounter with a �''k � Long-Tailed Weasel" Center Annex, 127 S. Mission, 1% for Art �,� by Gretchen Daiber Fund, 1996. % ° Bronze sculpture located at corner of . Mission & Yakima under the Museum's � ��' sign. Purchased by Art on the Avenues �� . and donated to the City, 1997. t 3❑ 5� � .� �" . '�—��-. `- � � '�" 4 �{ " . � �_� 4 � ,_..�� _ , � ��' �, ' -� — - — __�__�__� _r�� y �,t r, ��'`t�„�:� ` � � '�.."�' � 't^-,.r � ,�'c'�N �S.'ti�, a�,,,_��' ? "� ' -� r r i I � "Crouching � " ` ` `' i � Ma n" � j b . . � � _ _ �- v .:�. � ,�� Kevin Pettelle "Hidden Springs" � ; �� k Bronze sculpture by Shirley Thomsen-Smith "Elberta Lady, " '� � located near the Bronze sculpture located at the circa 1910 _ - 4 =:� north entrance Wenatchee Valley Museum. A lightweight metal sculpture '•" �` of the Museum, Purchased by Art on the � reportedly from the Elberta � 1% for Art Fund, Avenues and donated to the Hotel," which was located at 2002. City, 1996. Mission and Orondo, piece now inside the Museum, 1% for Art Fund, 1998. 1 � , 1 1 ._ - _i � i �L ;-.: ' � . - '3rr� X4+�i y i_ �� 1 ' . 1 - a � v � w ` , �- t u1\ .. .il� 1 � � j �t :� � . , � -�— � �+/� ' i. `� j ��. . • � � �. ,,s � �' � `�� '\ M,4rM n ;� I' �;u • _ L w. � - � _ li� . ,�j� � � � i.rs . l��'..f' �'„�'".�il. "1 �id� i� a r ��a}�N� 2�1_ S� -� ✓.+ �� '�i 7� � Iti� • �� i ��: �,� � ,,,� t,� � {[�� e • � � . � - .:y ��1 `1 7�1'� r11 r5 �}� . ,r r � i�3°■� !�''� �Rfiif� � � � � • � � •' • r. �.sn�+�� 1 �II_ r�a � � a7M��! I � � � - • � � ��fi+`'�'ixti'�y��m , g � ' �tlWY �\t�'�ii 1 � l . �� s.�ab�_�Y � Sliiis" � � �� - . �' � II��; 11 � � � - - • ' �%%1 �''� `. A � �{r !� fl�a ' "� M� �'r. '* •� • - - r . - / � � _ . 1�� `}A( . . i ' � ' ir.'°s �, ';, �;�� ,',��'� r� �5� „'— � . . i - • • • - ��f `::s��'' ;� ... r -�� - � �� ,�� a � _ � �,� � : i � Jr : rAS �� _ . .,. � r _ � _ . � - . �� t y � � .� ,..►.✓ .c� .+5� , � ' � �r��;a _,r. � � }<`r� ' ' + � - � - • �� ^� y , ; ��` � � • : • � • I I � I - I � � _ �1`��S'� . . ( 1l` ` ,�-.R•, c' '' .� ' • • � � � � ' � ♦ .s b' 1 � �� I �YYY{� � I /I II - - - - - - � " � ;,��,� `'� ! NaMNNN �� , , , __ „ , i *. ' ,� � ��::� �, �� ,. . ' ; ;i '�►:'.� �' � ,� 4 '-- '� �"�'��` I � ; i . — -"� � `i : i � v'd � �` �� :��:J ` �� \�'�, r�� _ � a��1�iU ��IjIII I I , � �_� / i . i • � � ��1it • �� • `S''�' — �� - i i� i�i - � - � �. . �� " ` - i • ��s; �.� : - . ' � "� - ' • �:� a: � _ . '. � M1 ._.� - ` 1 � " �� c � � �� Y- �� i - : i� � �� , _ rv._ , � � � � �,, � � � ;. r . . _ — � ' � , � � ��_ ' �r ,, . y,, �---., ti; ., \ \�''� 4 �► � _ i i , � �' `� 1 i i�� \ � � � r ,�c � . - , �r o � . �. . � �L ��t- v�� i- , --.� — ,� _� 1 � :! �� - � i I - �� •� r. - •r. -� • r• 1 �- � � � � �-' �„ � � ,,,,;� � j' l �� . ��['.... . � � r �' � " ,�. -- ��; ' � �= . . � . :� - � , . � ;.- n ., .�. �'� ,� , d �..- ! . �efe. .sr �if�.� �.a . � � � • l� � � f � ' � �� M ' - � - - ' - , . �� ,� ��.'��' � �W � 0 !I�_�� , , ' ..,.:�.� , � �" .- • . . . - � t� �� ',� ';�,�I�� ;, . �,�� ' � � . �` • � � �� '�� . , � }� . ,. . _ . . . . . _ , . . . s __ . . ., .. _....__-- . - .. "`!� __ . > -- . . .. - . - . . .. - . �. ' � . �- . .-. . ...- , � -. - . � - � - � -� - - �. - r.�• - - �. . • - � . - ' � • � 11 1' ' I II . � � 1 Q Chelan �` � � City Hall � � �, ��i. _ "Winter's Rest" -. � � o � ; � � ��, , by Shirley Thomsen-Smith � o ,�:::= Bronze sculpture located at _,- �" Police �� ,=" � Wenatchee Ciry Hall, 127 S. � F , , , _.��_ _ , . R.�,�—� ►` ��,�„ Chelan, i% for Art Fund, ��4 �''' �=U � 1997. _;;-,.� a ;: ; ,�---,- � -. ; �` �� ,� � M �R` ��" " - � -x ° � ` f ,,�i '-{ �r,. Y � r�. trv ��y 1' „,� . ' e •i .0 — � � I f 'I � � ' 1 � � ""'�--- � "Rattlesnake Canyon" � by Rod Weagant. Oil painting located at Wenatchee �ty Hall, 129 S. Chelan, i% for Art Fund, 2002. � I - � � - r� r � "Noah with Raven" �--'� � � � ��"`'—�-"�' � by Simon V. Kogan �� Bronze sculpture located ( �? ' inside Wenatchee City Hall � �� 129 S. Chelan. Purchased by Art on the Avenues, � pL �� donated to City of � � .�� a' � � � Wenatchee, 1997. 4 � � '�- � : �1 � r- _ � � �� ,! �� ; .. Guppo n i ;� by Kevin Pettelle. a '�' ��- �, Bronze salpture commissioned by the `' , Wenatchee Youth Circus members in r r commemoration of founder Paui Pugh �� and the organizations 50th anniversary. Donated to the City of Wenatchee, � � 2003. .,:.°� � � _ - �i� Chelan between Uro ndo & Palouse County Courthouse & Jail �� ,.J"� "Hampton" � ;�� by William F. Reese o Memorial Pazk Librazy n, Bronze sculpture IOCdt2d at o i � 2 - � � . - - �"�w � � �`� the corner of Chelan & Orondo on �❑ Memor�al Park. Purchased by 1/o Chelan � fOr Art Fund, private donations and Art on the Avenues , 2000. � ( �C �� Q � p� .�, � „��_� ° 3 � ` '' �' v� ~ � f y��l�u� � d ar, �� t�' ;i � � � �,� * � � t�� i'�� /'� �! ,° t �` �� i �� - � � � � � �` s� / r � "Harvest Moon Ball" � �� . �,�� by Georgia Gerber � ' - �' T � 1 S �?'� ' � Bronze salpture is located in � � ��.'' `�,;° � front of the Wenatchee Public 4 '� � � �., � : � � � �� , �„ ;, � ; J � . � - Library, 1% for Art Fund, 1998. �. ===^-'�";�;��r - _ _-� ,. �,.�-�. .,.-, � , , - 2 "High Flying Act" � � �;�� -�t = by Aaron McCullough r - "'��--• ° . Pastel drawing inside the public library, purchase from the ° f' - Wenatchee Valley Museum's ��---�----�� "Wenatchee's Best" show, 1% �__° , � �� •�� -� for Art Fund 2004. I 3 � �% ❑ "Puffed Up Prince" -�,.� , by Gary Price "Souls in Stone" ��: _,v`� � Bronze sculpture is in a Art from Zimbabwe place of honor at the top Carved serpentine stone � of the stairs in the located in Library's main � children's reading room floor reading area. 1% ��=- of the Library. 1% for for Art Fund, 2007. � �� Art Fund, 1999. ' , .��.. ..�� _� _ �'{�;•� i ° � � f'� r�. � a' _ P . �� ', - ,� � �+�4�� ',1 � : �' � �, �•.� ,�' • � ; r.; -- �. � �, � .��`�. � * � � h `5 ,� l ' � r _ ..._ �'�- _. . d I rb 'a � "Anything and Everything" by Liz Mapelli Eleven fused glass panels framed in maple and located inside the Library's front glass windows. 1% for Art Fund, 2007. Six photogrephs, oils, and watercolors, purchased in 1987 by Wenatchee Arts Commission _� _' with 1% for Art Fund for the North Central Washington Library. All pieces are inside �e Wenatchee Public Library located at the north side of Memorial Park off Chelan and Palouse. -�_�°�� I Greyhounds --- — ---- --� � ' � ' I b LaZelle Russell, � y � �x� � ' i y � �' oil pastel with ..� ' �� watercolor wash, �ndow of Books , 1 � }� �=�� " - � 1984. by Jeannie Borrer, ' � ' � � � � oil, 1987. ' — � � � �� , , , s . ._ _ -R-, , _ ,., Columbia Hotel Door L �„��' ' � by ]ames B. Fountain, ��'�� f phot�raph, 1987. , � I A. Untitled Landscape ,- .,� � � by Melissa Osbome, � watercolor, 1987. � �i 1 � � J a' , . s ' � �� •.s" I � _ �_ - � � �r i -r� � ' � �'� � � � �� aw. ; � � O ` � ` �� ' �, ` t ��` � � Oid Methodist Church _--- by Lila Jorgensen, oil, 1987. .�, �----- I � 8ti �,. , Have You Got a Costume '�� . . for Ann's Party? � Coming soon to the Library! by Tish Epperson, o�i 1985 �� „� �`' ; i ,� � y � �` � '� 5 ,� � � ., . � � �. . _ •� � � � I � = �.� � � Z '' ��. ��' ,r••:_} I n .SflOVI/ BP.dPJ �-- . �� by Wiiliam F. Reese �� _ =d ` '��`� � —__ __ - . �, � Bronze sculpture wiii be installed in --- �' +'� '` the spring of 2009 on the library's �� -�- �- -�---- - front counter. Art on the Avenues ,- �- purchase and donated to the City of i x �� - .,�, �� Wenatchee, 1997. , � I 1 , i � 1 1 � ��^ ' _ � � t � e ,�., ��Y ,� � , . - � � ��=_ � , .., .-,-.-,-.- ,-., :.: , �. ...-. �- .. . � � - .. . . � �� ,� � _ _ ' y • M / i � � _ _ �� -� 1 1 � � �' \ �L � ' ' , �9 'M . : � �- t '-l.a � .� (•�•� � � j �� , � � 4 � t;`''i "!''�+�� . '�" � .�` ' y{ ` i� ?z � _ � _ •�• _ � _ � � � � V � �•�. �- . � ��A�l'�.. � '. I� � . �� - - . - - - - * I +�- t:_. � - � � � 1 f � " �. 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'� �.�`� ' ' : ��; ' �. • . - � • . • . - . - - • . - . . - . . - . -. - . . . • - - - Public Services Center, McKittrick and Stella (continued) "When Two Rivers Meet" by Michele Van Slyke The laser cut aluminum wail sconces with hand ,, painted details depict the Wenatchee landscape tl �,,. ,�� with the two rivers meeting at the bottom while a the top shows the rows of orchard trees and hills ";�, �� on the backdrop of the larger mountains. The 21 a, , ��` s conc es c an b e viewed throu ghout the buildin g, �,` either iiluminated or featured as wall art. Public z, Art project, 1% for Art Fund, instailed November, ; � 2008. .� t` , ,L . Riverside Drive and Fifth St. �.- ---___.�___._._____ _ ____ - _� � � � 4� � � .� . �l j 4 � . ,.= . �� - - - .� � ' '�' L 'r _ - � � - � - - ' - '� _ " - - " �..._, � - '- _ " - - - - -�_ �.. "Convergenae" by Mark Stasz This 15' high metal sculpture will be mounted in the roundabout at the bottom of Fifth Street as a part of the new Riverside Drive dedicated in October, 2009. 1% for Art Fund. The arlwork features two steel and stainless steel arms extending over 5' feet across at their wid- est points, curving down to wrap around and suspend a 6' high basalt column before sitting on a 12' wide hexagon raised base of steel. Page 1 of 2 Christine Grenier From: Jerry L [jlybeck@gmail com] Sent: Wednesday, December 16, 2009 10:43 AM To: City Council Subject: RE: Citizen Concern - Better use for $250,000? (Jerry Lybeck) Thank you for your quick and polite reply. I am sure the council can find something worthy to improve within the downtown arena. Otherwise, I bet the state can find a use for $250,000. The biggest problem I see for downtown is available and free parking. You are appreciated. J -------Original Message------- � From: City Council Date: 12/15/2009 2:35:31 PM To: Jerry L Subject: RE: Citizen Concern - Better use for $250,000? (Jerry Lybeck) Mr. Lybeck, Thank you for your comments, which I have provided to the Council Members for their review and consideration. I also provided a copy of your comments to Gary Sexton, the City's Redevelopment Projects Administrator. Mr. Sexton clarified that the funding that will be used to construct the sculpture (the "Fish and Fisherman") will be paid for out of state grant dollars that have been specifically allocated to construct improvements within the City's downtown. These dollars have been put toward the improvements at the new Harborside Memorial Plaza, and it is anticipated that the dollars that remain will be used for other street plaza improvements and this proposed sculpture. If the state appropriation is not spent on projects to improve the City's downtown Harborside district the funds will have to be returned to the State. The City is not permitted to spend the money to create new jobs, fill potholes, or anything else that is not capital improvements in the downtown. Hope this information has been helpful. Thank you, Lori Smith Lori Smith Legislative Assistant Bremerton City Council (360) 473-5280 From: Jerry L [mailto:jlybeck@gmail.com] Sent: Tuesday, December 15, 2009 11:22 AM To: City Council Subject: $250,000 I understand you have $250,000 to spend for a rock in the shape of a fish? Isn't there a better use for this surplus money? Hungry, or unemployed people, potholes? Doubt very much if a statue 12/ 16/2009 I Page 2 of 2 , will attract tourists unless it is a Michaelangelo and then it is questionable. I will look forward to a better use for this "loose change". Jerry Lybeck (360) 692 9235 - _� �, � � � �� ;� `� ] a `-' � ' �� _ �, '�� , ' � �' ' � � � . _ , 1 t �� ..J-"'""� FREE Christmas Animations for Your email — by IncrediMail! , Click Here! - 12/16/2009 Page 1 of 1 Christine Grenier - - -- - - - - - - - - -- - - - --- - - -- From: Christine Grenier on behalf of City Council Sent: Wednesday, December 16, 2009 10:35 AM To: 'Sherlock Bill' Subject: Citizen Concern - Proposed Fish Art (Rieger) Dear Mr. Rieger, Thank you for your comments, which I have provided to the Council Members for their review and consideration. I also provided a copy of your comments to Gary Sexton, the City's Redevelopment Projects Administrator. Mr. Sexton clarified that the funding that will be used to construct the sculpture (the "Fish and Fishennan") will be paid for out of state grant dollars that have been specifically allocated to construct improvements within the City's downtown. These dollars have been put toward the iinprovements at the new Harborside Memorial Plaza, and it is anticipated that the dollars that remain will be used for other street plaza improvements and this proposed sculpture. If the state appropriation is not spent on projects to improve the City's downtown Harborside district the funds will have to be returned to the State. The City is not permitted to spend the money to create new jobs, fill potholes, or anything else that is not capital improvements in the downtown. I hope this information has been helpful. Sincerely, Christine Grenier Council/Auditor Assistant City of Bremerton (360)473-5280 From: Sherlock Bill [mailto:sherlockbill@yahoo.com] Sent: Tuesday, December 15, 2009 10:38 PM To: City Council Subject: Fish art Dear Council members: I read in the Kitsap Sun dated 12-14-09 on page A 1 that you will be considering $250,000 for statues at Fourth Street and Pacific Avenue. This is the worst possible time to even think of spending money on a non-essential like that. I am not sure what the limitations on the money are, but spend it on something utilitarian for the Pacific Avenue redevelopment. We have deteriorating streets and people out of work and to me it is an insult to the taxpayers to approve this. Please vote no on this issue. Sincerely, William L. Rieger 1522 Almira Court - PO Box 2423 Bremerton, Wa 98310-0317 Phone 360-377-8443 12/ 16/2009 Page 1 of 1 Christine Grenier From: Christine Grenier on behalf of City Council Sent: Wednesday, December 16, 2009 10:35 AM To: 'Sherlock Bill' Subject: Citizen Concern - Proposed Fish Art (Rieger) Dear N1r. Rieger, Thanlc you for your comments, which I have provided to the Council Members far their review and consideration. I also provided a copy of your comments to Gary Sexton, the City's Redevelopment Pro�ects Admmistrator. Mr. Sexton clarified that the funding that will be used to construct the sculpture (the "Fish and Fisherman") will be paid for out of state grant dollars that have been specifically allocated to construct improvements withm the City's downtown. These dollars have been put toward the improvements at the new Harborside Memorial Plaza, and it is anticipated that the dollars that remain will be used for other street plaza improvements and this proposed sculpture. If the state appropriation is not spent on pro�ects to improve the Crty's downtown Harborside district the funds will have to be returned to the State. The City is not permrtted to spend the money to create new �obs, fill potholes, or anything else that is not caprtal improvements m the downtown. I hope this information has been helpful. Sincerely, Christme Grenier Council/Audrtor Assistant Crty of Bremerton (360) 473-5280 From: Sherlock Bill [mailto:sherlockbill@yahoo.com] Sent: Tuesday, December 15, 2009 10:38 PM To: Ciry Council Subject: Fish art Dear Council members: I read in the Kitsap Sun dated 12-14-09 on page A1 that you will be considering $250,000 for statues at Fourth Street and Pacific Avenue. This is the worst possible time to even think of spending money on a non-essential like that. I am not sure what the limitations on the money are, but spend it on something utilitarian for the Pacific Avenue redevelopment. We have deteriorating streets and people out of work and to me it is an insult to the taxpayers to approve this. Please vote no on this issue. Sincerely, William L. Rieger 1522 Almira Court PO Box 2423 Bremerton, Wa 98310-0317 Phone 360-377-8443 12/16/2009 t Christine Grenier From: Christine Grenier on behalf of City Council Sent: Wednesday, December 16, 2009 4•35 PM To: 'George & Sara Nell Davis' � Subject: Citizen Letter - proposed fish statue (Davis) Dear Sara, Thank you for your comments regarding the proposed artwork. I have provided your letter to the Council for their consideration. Sincerely, Christine Grenier Council/Auditor Assistant City of Bremerton (360) 473-5280 -----Original Message----- From: George & Sara Nell Davis [mailto:sngdavis@wavecable.com] Sent: Wednesday, December 16, 2009 3:45 PM To: City Council Subject: Fish statues Dear Bremerton City Council Members: I worked for five years as a Visitor Information specialist at the Bremerton Chamber of Commerce and am currently serving on the board of the Kitsap Historical Society and Museum, a block away from the intersection of Pacific and Fourth. I ask you please, please, to put the brakes on the proposed `�fish" statues. My reasons are (1) Bremerton is not a fly fishing center. If they were installed, my first thought on seeing them would be "why"? (2) The fish statues' whimsical charm would be fun at a park like Evergreen or by a marina, but they are not lovely to look at and would be out of character—even jarring, I believe--a block away from the elegant, classy park installations further south on Pacific leading to the ferry. Those parks feature the natural beauty of Bremerton's setting and the town's Naval history. Art work a block away should be consistent with that approach. I am a strong proponent of public art and have been proud to show off the beautiful waterfront and the new parks on Pacific and Washington. I wouldn't want tourists to come to Bremerton to see the crazy fish statues. Please continue your excellent history of beautifying Bremerton by looking for another art installation for Pacific and Fourth. Sara Nell Davis Seabeck 1 DATE SUBMITTED• Dcccmbcr 2. �009 AGENDA B[LL � CITY OF BEtEMERTON - � CITY COUNCIL ■ ��t��s��t�� s �� ■ SUBJECT: Passage of Ordinance No. Study Session Date: December 9, 2009 �0� Amending Ordinance No. COUNCIL MEETING Date: December 16, 2009 5071, and Ordinance No 5079 - Modifying Department: Financial Services the 2009 Annua! Budget Presenter: Andy Parks Phone: 473-5722 SUMMARY: The Bremerton City Council adopted the 2009 annual City budget by Ordinance No. 5071 on December 17, 2008. On April 1, 2009, the City Council adopted Ordinance No. 5079, amending Ordinance No. 5071 to reduce appropriations due to reduced revenue. Subsequently, certain actions have been taken and conditions change since the budget adoption and amended budget adjustment which had an impact on the City's 2009 budget - resulting in the need tQ amend the 2009 budget. ATTACHMENTS: Ordinance and attachments, explanatory memo, and detailed fund recaps to be provided on the December 9, 2009 Council Study Session. FISCAL IMPACTS (Indude Budgeted Amount): funds of the City are updated by this ordinance. The attached discussion memo and supporting schedules provide the net fiscal impact to each fund for the proposed changes. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMNQTTEE CHAIR , - COUNCIL PRESIDENT: �.� --� CONSENT AGENDA ❑ GENERAL BUSINESS � � PUBLIC HEARING ❑ RECOMMENDED MOTION: Move to approve Ordinance No. S�I � � amending Ordinance No. 5071, which adopted the Fiscal Year 2009 budget and Ordinance No. 5073 which amended the Fiscal Year 2009 budget. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action ORDINANCE NO. 5( 0 I AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Ordinance No. 5079 which amended the Fiscal Year 2009 budget as originally adopted by Ordinance No. 5071 and further authorizing an interfiind loan from the Water Fund to the General Govemment Capital Improvement Fund. WHEREAS, the City Council passed the Fiscal Year 2009 City Budget Ordinance (Ordinance No. 5071) on December 3, 2008; and WHEREAS, the City Council subsequently amended the Fiscal Yeaz 2009 City Budget (Ordinance No. 5079) on April 1, 2009 to reduce General Fund revenues and expenditures to reflect reduced revenue projections; and WHEREAS, the City Council has previously amended the budget by various motions and resolutions subsequent to April 1, 2009 which require a formal amendment by ordinance; and WHEREAS, several City Departments and Funds are experiencing or anticipate additional expenses due to factors such as higher costs related to provision of contracted services, staffing costs, and debt issuance; and WHEREAS, several City Departments and Funds require adjustment to revenues to reflect reduced activity in 2009 or timing changes from that which was anticipated in the 2009 budget; and WHEREAS, the General Government Capital Improvement fund has insufficient cash flow to honor grant match commitments on capital projects in progress; and WHEREAS, surplus cash in an amount sufficient to meet the needs of this project is presently on hand in the Water Fund; WHEREAS, each of these actions has an impact on the City of Bremerton's Fiscal Yeaz 2009 Annual Budget resulting in the need to amend this Budget document; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Ordinance No. 5071 establishing the City of Bremerton's 2009 Budget and Ordinance No. 5079 amending the 2009 budget are hereby amended to establish the final year end adjustment to the Fiscal Year 2009 budget as follows: 1 2009 Final Budget Adjustinent 2009 Budget Final as Amended by 2009 Fund No. Ord No. 5079 N� Adjustments Budget 001 General Fund City Councii $ 304,330 $ 6,000 $ 310,330 ExecuUve 327,590 - 327,590 Financial Services 1,292,272 30,500 1,322,772 Legal 705,054 50,000 755,054 Human Resources 514,603 (120,500) 394,103 Community Develapment 1,165,348 - 1,165,348 Municipal Court 1,310,110 40,000 1.350,110 City Auditor 182,187 - 162.167 LawEnforcement 12,928.829 (1,110,000) 11,818,629 Fire/Emergency Services 7,660,030 430,000 8,090,030 PdicelFire Pension 2,578,000 (40,000) 2,538,000 General Facilitles 819,870 - 819,870 Parks 8 Recreation 2,945,847 - 2,945,847 Engineering 375,774 - 375,774 Economic Development 124,253 40,000 164,253 Non-Departmerrt 3,052,378 901,000 3,953,378 Ending Fund Balance 2,835,902 (1,154,406) 1,681,498 Totai General Fund $ 39,102,157 $ (927,406) $ 38,174,751 101 Arteriai Street 5,542,609 - 5,542.609 102 Street 2,847,759 - 2,847,759 103 Contingency Reserve 1,860,000 345,635 2,205,835 104 Civic Improvement 360,890 - 360,890 105 Parking System 1,677,007 - 1,677,007 108 Community De�velopment Block Gran 1,729,483 - 1,729,483 108 AbatemeM Revolving 215,041 - 215,041 110 Pdice Special Projects 605,549 - 605,549 113 Public Access Television 415,494 - 415,494 114 Gift & Danatlon Fund 80,861 - 80,881 116 TriallmprovemeM 50,671 - 50,671 117 One PerceM For Arts 109,335 - 109,335 120 ConferenceCenterOperadng 1,770,318 - 1,770,316 201 Bond Fund 2,498,732 - 2,498,732 302 Public Safety Bond 1,811,196 - 1,811,196 304 Harborside Plaza 8 Commons 600,705 2,287,020 2,867,725 308 General Govemment Capital improve 1,033,610 (87,539) 948,071 310 Park Facilides Construction 1,464,588 - 1.464.588 311 Boardwalk Project 1,905,499 (433,250) 1,472,249 401 Water Utility 16,442,343 6,431,648 22,873,991 407 Gdf Mountain Golf 3,922,197 5,339,061 9,261,258 451 Wastewater Utility 20,916,000 3,294,728 24,210,728 452 SW Bremertan Sewer Constructlon 3,973,024 - 3,973,024 481 Stormwater Udlity 3,531,040 - 3,531,040 499 Utilky Debt Reserve 1,322,128 (92,128) 1,230,000 503 Risk ManagemeM 2,545,484 - 2,545,484 509 ERB�R - OperaGons 8 Maintenance 2,374,548 - 2,374,548 510 ERBR - Reserves 6,296,217 1,288,853 7,585,070 511 Informad� Services 1,082,681 - 1,082,681 Total All funds $ 128,087,164 $ 17,426,622 $ 145,513,788 SECTION 2. That the totals for the funds noted in Section 1 above are hereby appropriated for the fiscal year 2009. 2 2009 Final Budget Adjustment SECTION 3. The Finance Officer is hereby authorized and directed to make an interfund loan from the Water Fund to the General Govemment Capital Improvement Fund in an amount not to exceed $350,000. This loan shall bear interest at the rate of 2.0% per annum and shall be repaid in its entirety not later than December 31, 201 l. Future amendments or adjustments to this loan requiring City Council action may be made by motion or resolution. SECTION 3. Severabilitv. If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION 4. Ef�`'ective 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 , 2009 CECIL MCCONNELL, Council President Approved this day of , 2009 PATTY LENT, Mayor ATTEST: APPROVED AS TO FORM: CAROL ETGEN, City Clerk ROGER A. LUBOVICH, City Attomey PUBLISHED the day of , 2009 EFFECTNE the day of , 2009 ORDINANCE NO. R:\Legal\Legal\Ordinances�Pinance�2009 Final Budget Adjustment.doc 3 2009 Final Budget Adjustment 2009 Budget Final as Amended by �� Fund No Ord No. 5079 Net Adjustments Budget 001 General Fund City Counal S 304,330 S 6,000 $ 310,330 Execuave 327.590 - 327,590 Financial Services 1,292,272 30,500 1,322,772 Legal 705,054 50,000 755,054 Human Resources 514,60:i (120,500) 394,103 Communrty Development 1,1b'S ' �'� Municipal CouR 1,310,110 40,000 1,350,110 City Auditw 162.167 - 162.167 LawEnforcement 12,928,629 (1,110,000) 11,818,629 Flre/Emergency Sennces 7,660,030 430,000 8,090,030 Police/F�re Pension 2.5�8,�0 ��.�� 2 �� General Facddies 8 - 819 Parks & Recreation 2,945.847 - 2,945,847 Engineenng 375,774 - 375,774 Economic Development 124,253 40,000 164,253 Na�-Department 3,052,378 901,000 3,953,378 Ending Fund Baiance 2.835.902 (1,154,406) 1,681,496 Total Generel Fund S 39,102.157 $ (927,406) $ 38,174,751 101 Artenal Street 5,542,609 - 5,542,609 102 St�eet 2.847,759 - 2,847,759 103 Cor�tingency Reserve 1.860,000 345,635 2,20`'.635 t04 Civic ImprovemeM �,� - �' 105 Parldng System 1,677.007 - 1,677,007 106 Community Development Block Gran t,729,483 - �,��`� 108 Abatement Revolving 215,041 - 215,041 110 Police Spec�al Projects �•� " �'� 113 Public Access Television 415,494 - 415,494 114 Gift 8 Donation Fund �,�� ' �� 116 Triallmprovement 50.671 - 50,671 117 One PerceM For Arts 109,335 - 109,335 120 Conference CeMer Operating 1,770,316 - 1,770,316 201 Bond Fund 2,498,732 - 2.498,732 302 Public Safety Bond 1.811,196 - 1,811,196 304 Harborside Plaza 8� Commo� 600,706 2,267,020 2.867,725 308 Generai Govemment Capitai Improve 1,033,610 (87,539) 946,071 310 Park Facilides Conshucti� 1,464,588 - 1,464,588 311 Boardwalk Pro�ect 1,905.499 (433,250) 1,472,249 401 Water Utdity 16.442,343 6,431,648 22.873.991 407 Golf Mourrtain Goif 3,922,197 5,339,061 9,�1.� 451 Wastewater Utdity 20,916.000 3,294.728 24,210,728 452 SW Bremerto� Sewer Co�struction 3,973,024 - 3,973,Q24 481 Stomiwater Uridy 3,531.040 - 3,531,040 499 Utddy Debt Reserve 1,322.128 (92,128) 1,230,000 503 Risk Management 2,545,484 - 2,545.484 509 ERBR - Operetions 8 Mamtenance 2.374,548 - 2,374.548 510 ER&R - Reserves 6,296,217 1,288,853 7,585,070 511 Information Services 1 .�.�� ' � �� Total All funds S 128,087,164 S 17,426,622 $ t45,513,786 General Fund 2ppy 20U9 2009 2009 Amcndcd Approvcd Ycar-End Final Amendcd Budgct Ad�ustmcnts Adjustmaits Budget Revenues TaYCS $23,672,226 $0 -$1,900,000 $21,772,226 Liccnses & Pcrmits R88,100 0 -121,000 767,100 lntergovernmental 3,896,349 0 -245,000 3,651,3�9 Charges for Services 3,034,787 0 -175,000 2,859,787 Fincs & Forfeits 1,632, I70 0 -175,000 1,457,170 Other Revenue 4,621,903 0 1,713,000 6,334,903 Total 37,745,535 0 -903,000 36,842,535 Ezpenditures City Council 304,330 0 6,000 310,330 EYecutive 327,590 0 0 327,590 Finance 1,292,272 0 30,500 1,322,772 Legal 705,054 50,000 � 0 755,054 Human Resources 514,603 0 -120,500 394,103 Community Development 1,165,348 0 0 1,165,348 Municipal Court 1,310,110 0 40,000 1,350,110 City Auditor 162,167 0 0 162,167 Law Enforcement 12,928,629 -737,000 � -373,000 11,818,629 Fire/Emergency Medical Services 7,660,030 0 430,000 8,090,030 Police & Fire Pension 2,578,000 0 -40,000 2,538,000 Facilities 819,870 0 0 819,870 Parks & Recreation 2,945,847 0 0 2,945,847 Engincering 375,774 0 0 375,774 Economic Development 124,253 0 40,000 164,253 Non-Departmental 3,052,378 687,000 � 214,000 3,953,378 Total Expenditures 36,266,255 0 227,000 36,493,255 Revenue ovcr(under) expenditures 1,479,280 -1,130,000 349,280 Beginning fund batance 1,356,622 -24,�06 1,332,216 Ending fund balance 52,835,902 -$1,154,406 $1,681,496 Total Exp & End Fund Bal 539,102,157 $38,174,751 � Approved through Agcnda Bilt 09-121, May 20,2009 � Contingency Reserve Fund 2009 2009 2UU9 2009 Adoptcd Approvcd Ycar-End Final Amcndcd Budget Ad�ustmcnts Ad�usUncnts Budgct Revenue Taxcs $0 $0 $0 $0 Licenses & permits 0 0 0 � Intergovernmental 0 0 0 0 Charges for services 0 0 0 0 Fincs & forfeits 0 0 0 0 Other revenue 50,000 0 365,000 415,000 Total revenue 50,0� 0 365,0� 415,000 Egpenditures Personnel 0 0 0 0 Supplies, services & ta.xes 0 0 0 0 Capital expenditures 0 0 0 0 Debt serv�ce 0 0 0 � Transfcrs & Other 855,720 0 95,280 951,000 Total Expenditures 855,720 0 95,280 951,000 Revenues over(under) expenditures -805,720 269,720 -536,000 Beginning fund balance 1,810,000 -19,365 1,790,635 Ending fund balance $1,004,280 $250,355 $1,254,635 Total Ezp & End Fund Bal $1,860,000 $2,205,635 Narborside Plaza Fund 20U9 2009 20U9 2009 Adopted Approvcd Ycar-End F�nal Amended Budget Ad�ustments Adjustments Budgct Revenue Taxcs $0 $0 $0 $0 Licenscs & pc;rmits 0 0 0 0 Intergovernmental 450,000 0 2,061,000 2,511,000 Charges for services 0 0 0 0 Fines & forfcits 0 0 0 0 Other revenue 150,000 0 206,644 3�6,644 Total revenue 6�,000 0 2,267,644 2,867,644 Egpenditures Personnel 0 0 0 0 Supplies, services & taxes 0 0 0 0 Capital expenditures 599,865 0 2,260,724 2,860,589 Debt service 0 0 0 0 Transfcrs & Other 0 0 0 0 Total Expenditures 599,865 0 2,260,724 2,860,589 Revenues over(under) expenditures 135 6,920 7,055 Beginning fund balance 705 -624 81 Ending fund balance $840 56,296 $7,136 Total Exp & End Fund Bal $600,705 $2,867,725 General Government Capital Improvement Fund 2009 20O9 20U9 2009 Adoptcd Approvcd Yc;ar-End Final Amcndcd Budgct Ad�ustmcnts Adjustmcnts Budgct Revenue Ta�ccs $1,000,000 $0 -$450,000 $550,000 Liccnses & permits 0 0 0 0 Intergovernmental 0 U 15,000 I 5,000 Charges for scrviccs 0 0 0 � Fines & forfeits 0 0 0 0 Other revenue 30,000 0 320,000 1 350,000 Total revenue 1,030,000 0 -115,000 915,000 Expenditures Personnel 0 0 2,000 2,000 Supplies, services & taxes 0 0 13,000 13,000 Capital expenditures 0 0 0 0 Debt service 0 0 0 0 Transfers & Other 1,025,000 0 -119,000 906,000 Totai Expenditures 1,025,000 0 -104,000 921,000 Revenues over(under) expenditures 5,000 -11,000 -6,000 Beginning fund balance 3,610 27,461 31,071 Ending fund balance $8,610 516,461 $25,071 Total Exp & End Fund Bal $1,033,610 $946,071 1 lncludes interfund loan of $350,000 [3oardwalk Fund 2U09 2U09 2U09 2009 Adoptc;d Approvc� Ycar-End Final Amcndcd Budgct Adjustmcnts Adjustmcnts Budgct Revenue Taxes $0 $0 $0 $0 Liccnses & permrts � � � � Intergovernmental 250,000 0 685,000 935,000 Charges for services 0 0 0 0 Fines & forfe�ts 0 0 0 0 Other revenue 105,000 346,750 � -104,000 347,750 Total revenue 355,000 346,750 581,000 1,282,750 Expenditures Personnel � � � a Supplies, services & taxes 0 0 0 0 Capital expenditures 630,000 1,120,000 � -285,000 1,465,000 Debt service 0 0 0 0 Transfers & Other 0 0 0 0 Total Expenditures 630,000 1,120,000 -285,000 1,465,000 Revenues over(under) expenditures -275,000 -773,250 866,000 -182,250 Beginning fund balance 1,550,499 -1,361,000 189,499 Ending fund balance $1,275,499 -$495,000 $7,249 Total Exp & End Fund Bal $1,905,499 $1,472,249 ' Approved through Agenda Bill #09-106 dated, May 6, 2009 Water Fund 2009 2009 2009 2009 Adoptcd Approved Ycar-End Final Amcndc;d Budget Adjustmcnts Adjustmcnts Budgct Revenue Ta�ces $0 $0 $0 $0 Licc:nses & permits 0 0 0 0 Intcrgovcrnmcntal 0 0 0 0 Charges for services 9,709,896 0 0 9,709,896 Fines & forfeits 0 0 0 0 Other revenue 2,036, l75 2,364,000 ' 0 4,400,175 Total revenue 11,746,071 2,364,000 0 14,110,071 Expenditures Pcrsonnel 4,429,337 0 0 4,429,337 Supplies, services & taxes 3,667,758 0 0 3,667,758 Capital expenditures 4,055,000 2,384,000 1 0 6,439,000 � Debt service 749,770 0 0 749,770 Transfers & Other 885,153 0 0 885,153 Total Ezpenditures 13,787,018 2,384,000 0 16,171,018 Revenues over(under) expenditures -2,040,947 -20,000 0 -2,060,947 Beginning fund balance 4,696,272 4,067,648 8,763,920 Ending fund balance $2,655,325 $4,�7,648 $6,702,973 Total Exp & End Fund Bal S16,442,343 522,873,991 ' Approved tivough Agenda Bill #09-108 $2,225,000, May 6, 2009 & Council Action $159,000 August 5, 2009 Gold Mountain Golf Fund 20U9 2U09 2Q09 20U9 Adoptc� Approvc� Year-End Final Amended Budgct Adjustmcnts AdjusUnents Budget Revenue Taxcs $0 0 $0 $0 Liccnses & permits 0 0 0 0 Intergovcrnmcntal 0 0 0 0 Charges for services 3,631,554 0 3,631,554 Fines & forfeits 0 0 0 0 Other revenue 114,444 5,373,000 � 5,487,444 Total revenue 3,745,998 5,373,000 0 9,118,998 Expenditures Personnel 64,928 0 0 64,928 Supplies, services & taxes 3,032,389 0 0 3,032,389 Capital expenditures 15,000 0 0 15,000 Debt service 620,300 0 0 620,300 Transfers & Other 0 5,348,000 1 0 5,348,000 Total Expenditures 3,732,617 5,348,000 0 9,080,617 Revenues over(under) expenditures 13,381 25,000 0 38,381 Beginning fund balance 176,199 -33,939 142,260 Ending fund balance 5189,580 -$33,939 $180,641 Total Egp & End Fund Bal $3,922,197 $9,261,258 1 Authorized through Council Action Resolution #3097 September 16, 2009 Wastewater Fund 4S1 2009 2009 20U9 20U9 Adopted Approvc:d Ycar-End Final Amcndui Budgct Ad�ustments Ad�ustments Budget Revenue Taxcs $60,000 $0 $0 $60,OU0 Licenses & permits 0 0 0 0 Intcrgovernmcntal 0 0 0 0 Chargcs for scrvices 13,877,700 0 0 13,877,700 Fines & forfcits 0 0 0 � Other revenue 3,754,317 1,455,000 ' 0 5,209,317 Total revenue 17,692,017 1,455,000 0 19,147,017 Expenditures Personnel 3,10'7,134 0 0 3,107,134 Supplies, services & taxes 3,264,652 0 0 3,264,652 Capital expenditures 6, I50,000 1,455,000 ' 0 7,605,000 Debt service 2,656,600 0 0 2,656,600 Transfers & Other 2,233,680 346,750 2 0 2,580,430 Total Expenditures 17,412,066 1,801,750 0 19,213,816 Revenues over(under) expenditures 279,951 -346,750 0 -66,799 Beginning fund balance 3,223,983 1,839,728 5,063,711 Ending fund balance 53,503,934 $1,839,728 �4,996,912 Total Ezp & End Fund Bal $20,916,0� $24,210,728 ' Approved through Agenda Bill #09-120 $500,000 and Agenda Bill # 09-122 $955,000, May 20, 2009 Z Approved through Agenda Bill #09-106, May 6, 2009 Utility Debt Reserve Fund 499 2009 2009 ?009 2U09 Adoptc� Approvc� Yc;ar-End Final Amcndcd Budget Adjus[ments Adjustments Budget Revenue Taxes $0 $0 $0 $0 Licenses & permits 0 0 0 0 Intergovcrnmcntal 0 0 0 0 Charges for services 0 0 0 0 Fines & forfeits 0 0 0 0 Other revenue 103,270 0 -86,813 16,457 Total revenue 103,270 0 -86,813 16,457 Expenditures Pcrsonnel 0 0 0 0 Supplies, services & taxes 0 0 0 0 Capita.l expenditures 0 0 0 0 Debt service 0 0 0 0 Transfers 0 0 1,230,000 1 1,230,000 Total Expenditures 0 0 1,230,000 1,230,0� Revenues over(under) expenditures 103,270 -1,316,813 -1,213,543 Beginning fund balance 1,218,858 -5,315 1,213,543 Ending fund balance $1,322,128 -$1,322,128 $0 Total Exp & End Fund Bal $1,322,128 $1,230,000 � Closing Utility Debt Reserves - Transferring to Water and Wastewater Funds ER&R - Reserve Fund 2009 2009 2009 2009 Amcndcd Approvcd Ycar-End Final Amcndcd Budget Ad�ustments Adjustmcnts Budgct Revenue TaYes $� $� $� $� Licenses & permits 0 0 0 0 Intergovernmental 0 0 0 0 Charges for services 0 0 0 0 Fines & forfcits 0 0 0 0 Other revenue 909,044 0 0 909,044 Totai revenue 909,044 0 0 909,044 Egpenditures Personnel 0 0 0 0 Supplies, services & taxes 0 0 0 0 Capital expenditures 1,607,500 50,000 � 0 1,657,500 Debt service 0 0 0 0 Transfers & Other 1,000,000 0 600,000 2 1,600,000 Total Eapenditures 2,607,500 50,000 600,000 3,257,500 Revenues over(under) expenditures -1,698,456 -50,000 -600,000 -2,348,456 Beginning fund balance 5,387,173 1,288,853 6,676,026 Ending fund balance $3�688��1� $688 $4,32� Total Exp & End Fund Bal $6,Z96,217 $7,585,070 1 Approved through Agenda Bill # 09-115 &#09-116, May 20, 2009. 2 Authorized $500,000 Interfund Loan through Council Action May 6, 2009, Resolution #3087 2 Transfer to ER&R Operations and Maintenance Fund 509, $100,000