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HomeMy WebLinkAbout2004 - Tunnel Initiative RESOLUTION NO. 9433 A RESOLUTION of the City Council of the City of Bremerton, Washington, taking action not to submit to the qualified electors of the City of Bremerton at the November 2, 2004 General Election, Initiative Petition 101 relating to construction of a vehicular traffic tunnel as part of the Downtown PedestnanBTC Access Improvements Project WHEREAS, an Initiative Petition signed by registered voters, equal in number to at least twenty -five percent of the total votes cast for all candidates for Mayor at the last preceding City of Bremerton election, has been filed with the City Clerk as provided for in RCW 35 17 260, and WHEREAS, the Petition seeks to prohibit the City from constructing a traffic tunnel as part of the Downtown PedestnanBTC Access Improvements Project ( "Project ") WHEREAS, the City Clerk, through the Krtsap County Auditor, on July 23, 2004, venfied the sufficiency of the signatures thereto, and WHEREAS, RCW 35 17 260 provides for the matter to be presented to the City Council within 20 days of certification of sufficiency of signatures for either adoption of the ordinance as proposed or to forward the initiative to election on November 2, 2004, and WHEREAS, the County Auditor requires a Resolution approved by the City Council authorizing the placement of the proposition on the November General Election, and WHEREAS, the State of Washington, in a letter from the Secretary of Transportation received by the City on July 13, 2004, notified the City that the State is assuming the Project, and WHEREAS, because the State has assumed jurisdiction of the Project, the City Council finds that the subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980), the issue presented in the initiative petition is now moot, and submitting the initiative to a vote of the citizens would be confusing in that the voters may think may think they have an impact on the tunnel decision, and WHEREAS, the City Council has three options when reviewing the initiative petition 1) adopt the proposed ordinance, 2) submit the initiative to a vote of the citizens, or 3) decide not to submit the initiative to a vote of the citizens, and WHEREAS, because of the above -noted findings, the City Council finds that it would be inappropriate to submit the Initiative Petition to the voters, NOW THEREFORE 1 Initiative Petition 101 THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS SECTION 1. The recitals set forth above are hereby incorporated as if set forth herein in full SECTION2. Initiative Petition 101 shall not be placed on the November General Election SECTION 3. SeverabihN If any one or more sections, subsections, or sentences of this Resolution are held to be unconstitutional or Invalid, such decision shall not affect the validity of the remaining portion of this Resolution and the same shall remain in full force and effect SECTION 4. Effective Date This Resolution shall take effect and be in force immediately upon its passage PASSED by the City Council of the City of Bremerton, Washington this day of 2004 DAREN NYGREN, Counc President APPROVED AS TO FORM ATTEST 4 ER A L C , rt orn A J ON, City Clerk r R TEGAUResolutions \City CouncilUnitiatrve Petition doc 2 Initiative Petition 101 DATE SUBMITTED July 29, 2004 BILL # 0445 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Public Hearing on Resolution Committee Meeting Date July 28 , 2004 No a 13 -3_ regarding the Downtown COUNCIL MEETING Date August 4, 2004 Pedestnan/BTC Access Improvements Department City Attorney's Office Project- Initiative Petition Presenter Roger A Lubovich Phone 473 -2345 SUMMARY: Citizen's Initiative 101 was certified by the County Auditors office on July 23, 2004 This initiative petition seeks to prohibit the City from constructing a traffic tunnel as a part of the Downtown Pedestnan/BTC Access Improvements Project in downtown Bremerton The City Council has three options with regard to the initiative petition 1) adopt the proposed ordinance as presented in the petition, 2) submit the initiative to a vote of the citizens, or 3) not submit the initiative to a vote of the citizens It is the City Attorney's recommendation that the initiative petition not be submitted to the voters for the following reasons a The subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980), b The issue presented in the initiative petition is now moot, and c Submitting the initiative to a vote of the citizens would be confusing in that the voters may think they have an impact on the tunnel decision ATTACHMENTS: Proposed Resolution, Initiative 101 Petition, Letter of Certification FISCAL IMPACTS (Include Budgeted Amount) APPROVALS: DEPARTMENT DIRECTOR CITY ATTORNEY FINANCE DIRECTOR MAYOR FISCALBUDGET Pre-Council 7/28/04 OPERATIONS Pre-Council 7/28/04 CONSENT AGENDA ❑ COUNCIL PRESIDENT. RECOMMENDED MOTION: I move to pass Resolution No electing not to submit the initiative to a vote of the citizens COUNCIL ACTION: prove ❑ Deny ❑ Table Continue ❑ ❑ No Action R TEGAUDepartments- GeneraWity counciffunnel ab doc INITIATIVE 101 "Citizens Against The Tunnel (GATT)" Wants to Give you the RIGHT TO VOTE ON A TUNNEL INITIATIVE PETITION FOR SUBMISSION TO THE CITY COUNCIL OF BREMERTON, WASHINGTON To the City Clerk of the City of Bremerton Washington We the undersigned registered voters of the City of Bremerton Washington, respectfully direct that this petition and the proposed ordinance contained herein entitled An ordinance prohibiting construction of a downtown tunnel be enacted into law, and furthermore if the City Council fails to enact this ordinance, that it be submitted to a vote of the people at a regular or special election to be held on a date and in the manner required by the Revised Code of Washington and each of us for himself or herself says I have personally signed this petition I am a legal voter of the City of Bremerton Washington my residence address is correctly stated and I have knowingly signed this petition only once Statement of Action Sought The purpose of this initiative is to prohibit the City of Bremerton from constructing a vehicular traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements project Such an initiative is authorized by the Bremerton City Charter Section 5 and Section 36, adopting RCW 35 17 240 through RCW 35 17 360 Text of Ordinance The proposed ordinance reads as follows Ordinance _ (Initiative #101) An ordinance of the City of Bremerton prohibiting construction of a vehicular traffic tunnel as part of the Downtown Pedestrian/BTC Access Improvements The City of Bremerton Does Ordain Section I The City of Bremerton shall not construct a vehicular traffic tunnel as part of its Downtown Pedestrian/BTC Access Improvements project Warning Every person who signs this petition with any other than his or her true name, or who knowingly signs more than one of these petitions or signs a petition seeking an election when he or she is not a legal voter, or signs a petition when he or she is otherwise not qualified to sign, or who makes herein any false statement, shall be guilty of a misdemeanor CITY OF BREMERTON INITIATIVE TO THE PEOPLE CITY OF BREMERTON VOTERS SIGN BELOW Petitioner s Residence Address Petitioner s Signature Date Petitioner's Printed Name Must reside within City limits of Bremerton City or Town Zip Coun 2 3 4 5 6 7 8 9 10 MAIL COMPLETED PETITIONS TO CITIZENS AGAINST THE TUNNEL (CATT) PO Box 502, Bremerton, WA 98337 (360) 373 -1594 t FINANCIAL SERVICES City Clerk / Paula Johnston Plohnston@d bremerton waus Tot 360.473 -5323 r " ` , ;`Ae r360-473-5200' " 239 4th Sheet° Bremerton, WA 96337 +` August 5, 2004 Karen Flynn Krtsap County Auditor 614 Division Street, MS -31 Port Orchard, Washington 98366 Dear Ms Flynn Enclosed for your records is a fully executed copy of Resolution No. 2933 approved by the City Council on August 4, 2004 This Resolution takes action not to submit Initiative Petition 101 relating to construction of a vehicular traffic tunnel as part of the Downtown PedestnanBTC Access Improvements Project to the voters at the November 2, 2004 General Election Sincere' , aula Johns n City Clerk PJ:ch enclosure fl Office of the City Attorney 1 !1 Roger A Lubovich, City Attorney 3 Ali Memorandum TO: City Council From: Roger A Lubovid Be: Downtown Pedestnanl TC Access pprovements Project — Initiative Petition Date: August 2, 2004 Facts. On July 12, 2004, the City Clerk received a copy of a citizen's initiative which provides "The City of Bremerton shall not construct a vehicular traffic tunnel as part of its Downtown Pedestnan/BTC Access Improvements project" (emphasis added) This initiative petition in essence seeks to stop construction of a traffic tunnel as a part of the street improvements proposed for State Route 304 in downtown Bremerton The initiative was certified by the County Auditors office on July 23, 2004 as having enough signatures to submit to the voters for an election On July 13, 2004, the City received a letter from Douglas B MacDonald, Secretary of Transportation, Washington State Department of Transportation informing the City that the State was assuming jurisdiction over the project City Council options. The City Council has three options with regard to the presented initiative petition The City Council may take action to 1) adopt the proposed ordinance as presented in the petition, 2) submit the initiative to a vote of the citizens, or 3) not submit the initiative to a vote of the citizens Recommendation. I recommend that the City Council vote not to submit the initiative to a vote of the citizens for the following reasons a The subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980), b The issue presented in the initiative petition is now moot, and c Submitting the initiative to a vote of the citizens would be confusing in that the voters may think they have an impact on the tunnel decision Analysis. The primary question raised concerns the fundamental issue of whether this type of decision, which basically is whether to construct a vehicular traffic tunnel as part of its downtown street improvement to State Highway 304, is a proper subject for an initiative by the citizens of Bremerton Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 2 My conclusion, after reviewing the relevant cases in this state, is that the decision whether to construct a tunnel as part of the improvement project is not subject to an initiative by the citizens of Bremerton since the primary decision - making authority resides with the State Department of Transportation and not the City Council of the City of Bremerton The Bremerton City Charter provides for the process of initiative and referendum by the citizens of the City, which is to be exercised in the manner set forth in RCW 35 17 240 — 35 17 360 Certain procedural requirements must be met, such as obtaining the required number of signatures on the petition, before an initiative is valid. However, in addition to the procedural requirements for an initiative petition to be valid, there are two tests that have been created by the courts in this state and consistently applied to initiative measures to determine if they concern valid subjects for the exercise of the power of initiative Not all types of city council actions are subject to the initiative and referendum process I will briefly outline these tests and how they apply to the facts in this situation The first test applied by the courts in Washington is whether the underlying council action is legislative or administrative in nature The power of the people to adopt legislation directly through the initiative process is limited to actions that are legislative in nature See Ruano v Spellman, 81 Wn 2d 820 (1973) If an action is deemed to be administrative in nature, then the decision in not subject to initiative or referendum powers In this context, an act is characterized as legislative or administrative according to the following two tests Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative In addition, the power to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in nature if it merely pursues a plan already adopted by the legislative body itself or some power superior to it Citizens for Financially Responsible Government v Spokane, 99 Wn 2d 339 (1983) Applying these tests to the facts in this situation, a decision concerning whether to construct the street improvement project to SR 304 by means of a tunnel is not a legislative decision of the city council The street improvement is an action that will be of a permanent and general character, however, the decision to construct a major street improvement to SR 304 in downtown Bremerton by means of a vehicular traffic tunnel merely pursues a plan already adopted by some power superior to it, in this case, the State The key decisions relating to this project are no longer subject to the control of the City Council This is true for the underlying decision whether to pursue the project at all and also for the decision whether the project should be completed by means of a vehicular traffic tunnel or a surface street These key decisions are not being made by the City but rather by the State Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 3 One earlier Washington court case that needs to be considered in this analysis is Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980) In that case, an initiative was proposed by citizens in Seattle to withdraw the city's participation in a limited access highway project (an improvement to a portion of Interstate 90) The initiative was challenged as being beyond the powers of the initiative process The Washington Supreme Court applied the tests outlined above and concluded that the initiative process did not apply because the actions remaining to the City of Seattle were administrative in nature and thus not subject to a citizen's initiative The conclusion in the Seattle Building Council case is applicable to the situation in Bremerton The court emphasized in that case that the highway being constructed was a limited access facility governed by the procedures in Ch 47 52 RCW As a limited access facility, the state had full jurisdiction, responsibility and control over it While Seattle had a voice in determining the type of facility to be constructed, its participation was limited to the role provided in Ch 47 52 RCW If the city disapproved of the plan proposed by the state highway department, it could only file that disapproval in writing with the state Secretary of Transportation and request a hearing before a board of review After a hearing before the board, the board makes the final and binding decision, subject to revision only by stipulation of the parties The court concluded the role of Seattle in the Interstate 90 improvement project was merely adrrunistrative in nature The city had no authority to act in a legislative capacity in regard to the location and construction of the limited access facility The city could not ban construction of the facility nor refuse to cooperate in construction once the plan had been adopted The key decisions regarding the project were made by the state In Bremerton, although the portion of the street project under consideration is not a limited access facility, the result is the same in that the decision whether to proceed with construction of the project rests with the State, not the City Council. The decision whether to construct a traffic tunnel as the means of accomplishing the project also rests with the State So in my opinion, the key facts in the Seattle Building Council case are similar to the facts in Bremerton and it seems likely that the court would reach the same conclusion The second court- created test that must be applied to determine if an action of a city council is subject to the initiative process is whether the underlying grant of authority by the state legislature in regard to the action being taken is to the city as a corporate entity or to its legislative authority (which is the city council for cities) See Lince v Bremerton, 25 Wn App 309 (1980), and Leornard v Bothell, 87 Wn 2d 847 (1992) If the grant of authority is to the city as a corporate entity, direct legislation by the people in the form of initiative or referendum is permissible If the grant of power is to the legislative authority of the city, then initiative and referendum is prohibited Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 4 When applying this test, it is necessary to determine the statutory grant of authority underlying the action involved The primary statute applicable to this situation appears to be RCW 35 22 280, which contains a list of powers granted to first class cities such as Bremerton. The statute provides, Any city of the first class shall have power . (7) To lay out, establish, open, alter, widen, extend, grade, pave, plank, establish grades, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and other public grounds (12) To construct and keep in repair bridges, viaducts, and tunnels, and the regulate the use thereof, Because this statute does not reference the city council, the primary grant of authority by the state legislature to construct and improve streets and construct tunnels is to the city as a corporate entity This leads to the conclusion that this action under this test is subject to the citizen initiative process After reviewing the two tests applied by courts in this state to determine if an action by the City Council is subject to the initiative process, it appears that the proposed subject of the initiative, which prohibits the City from constructing a vehicular traffic tunnel as a part of the improvements to SR 304, is not valid for the initiative process in Bremerton because the decision of the City Council is administrative in nature pursuant to Seattle Building Council City Council Action. A decision must be made by the City Council when an initiative measure is successfully submitted by the citizens As noted above, the City Council has three options when reviewing the initiative petition 1) adopt the proposed ordinance, 2) submit the initiative to a vote of the citizens, or 3) decide not to submit the initiative to a vote of the citizens The City Council is directed by RCW 35 17 260, after receiving a valid initiative, to either pass the proposed ordinance within twenty days or cause an election to be held on the next appropriate election date and submit the initiative to a vote of the citizens of the City However, in view of the tests outlined above, the initiative proposed is not a proper subject for an initiative As noted above, this is because the subject of the initiative relates to an administrative action Some city councils have refused to submit an initiative measure to the voters because they have deemed it to involve an issue that is not properly subject to the initiative process The courts in this state have reviewed initiative measures before they are submitted to the electorate for a vote in order to make the determination of whether the proposed law is beyond the scope of the initiative process Seattle Building Trades Council v Seattle, 94 Wn 2d 740 (1980) The courts will apply the tests outlined above and make this determination Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 5 The state statutes that govern the initiative process for the City of Bremerton also provide a reference to submitting a proposed initiative to the courts It provides in RCW 35 17 290 that if the clerk finds the petition insufficient, or if the city council refuses either to pass the initiative or order an election, then any taxpayer may commence an action in superior court in order to obtain a decree ordering an election to be held Additionally, because of the action by the State to take over the project, the subject matter to be voted on by the citizens is moot Any vote against the tunnel project will have no impact on the State's action relating to the same since the State is the decision maker A vote by the citizens on the initiative may cause confusion in that the voters may believe their vote will have an impact on the project when in fact it will not Conclusion. Because the proposed subject of the initiative, which prohibits the City from constructing a vehicular traffic tunnel as a part of the improvements to SR 304, is not valid for the initiative process because the decision of the City Council is administrative in nature pursuant to Seattle Building Council, it is my recommendation that the City Council vote to not submit the initiative to a vote of the citizens 07/23/2004 15 58 FAX 360 337 5769 KITSAP COUNTY ELECTIONS 002 r 4 Karen Flynn Kitsap County Auditor - Elections &Voter Registration SHIpGifl 1026 Sidney Avenue, Suite 175 + Port Orchard, Washington 98366 -4678 Telephone (360) 337 -7128 • Facsimile (360) 337 -5769 Add Ariwoola Financial Services Managar Winne Flores -Logan Chief Deputy Auditor CERTIFICATE OF SUFFICIENCY I hereby certify, In accordance with RCW 35.17.260, that the Petition Initiative 101 from the City of Bremerton, Washington (Citizens Against The Tunnel), was signed by at least twenty -five percent (2,060 of 8,238) of the votes cast for all candidates for mayor at the last general election at the last preceding general election. WITNESS my hand and official seal of office affixed this 23" day of July 2004. 4 KAREN F I ; • f ' " FL r Kltsap County Auditor f' Administration Accounts payable Payroll Vehmla Licensing Public Records (360) 337 -7129 (300) 337.7122 (360 ) 33 - 1.7125 (360) 337-4440 (360) 3374935 Fax 337--"45 Fax 3377016 Fax 337-7010 Fax-337-4645 Fax 337.4645 Toll Free from Olalla 559 -4147 • Bainbridge Island 842 -2051 v7P Washington State Transportation Building Department of 'Transportation 310 Maple Park Avenue S E Douglas B. MacDonald P O Box 47300 Secretary of Transportation Olympia, WA 98504 -7300 360 - 705 -7000 TTY 1 -800- 833 -6388 July 13, 2004 www wsdot wa gov The Honorable Cary Bozeman Mayor, City of Bremerton Councilman Daren Nygren, Council President, City of Bremerton 239 Fourth Street Bremerton WA 98337 Re Downtown Bremerton Pedestnan/BTC Access Improvement Project Dear Mayor Bozeman and Councilman Nygren I write today regarding the Downtown Bremerton PedestnanBTC Access Improvement Project on State Route 304 I understand that the draft Environmental Assessment stage of this project should be completed shortly As we move from the draft Environmental Assessment to the final Environmental Assessment, WSDOT must step forward to fulfill its statutory responsibilities for management of this state highway protect State law requires WSDOT to "exercise all the powers and perform all the duties necessary, convenient, or incidental to the planning, locating, designing, constructing, improving, repairing, operating, and maintaining [ofJ state highways" (See RCW 47 01 260 ) We are prepared to handle the complex scope issues and public involvement question required of such a project The Environmental Assessment may raise many issues that will have to be addressed with the community before the project could proceed WSDOT looks forward to continuing to work with the City of Bremerton Randy Hain, WSDOT's Olympic Region Administrator, can be reached via telephone at (360) 357 -2605 with any questions Sincerely, r Douglas B TVIacDonald Secretary of Transportation DBM iaa cc Randy Hain, WSDOT, 47440 Larry Ehl, WSDOT, 47322 1 2 RECEIVED FOR 3-ILING KITSAP COUNTY CLERK 4 C)AVIU VV PETERSON KITSAP COUNTY CLERK 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No. 04 -2- 02001 -0 Petitioner, v 12 ORDER DENYING PETITION FOR WRIT OF MANDATE 13 THE CITY OF BREMERTON and CITY 14 COUNCIL OF BREMERTON, Respondents 15 16 THIS MATTER came before the Court on a Petition for Writ of Mandate 17 The Court considered the following pleadings and evidence: 18 1 Petition for Writ of Mandate, 19 2 Respondents Answer and Affirmative Defenses to Petition for Writ of Mandate, 3 City of Bremerton's Opposition to Petition for Writ of Mandate, 20 4 Declaration of Randall A Hain, P E, WSDOT, 21 5 Declaration of David P Horton with attachments, and 22 6 Petitioner's Memorandum of Law 23 24 Based on the argument of counsel and the pleadings and evidence presented, the 25 Court finds 1 The ordinance proposed by the initiative seeks to stop'the constructi"t a state 26 highway ORDER DENYING PETITION FOR ROGER A LUBOVICH BREMERTON CITY ATTORNEY WRIT OF MANDATE - 1 ')7Q arh 'Zt-, r, 4 t 1 2 The Department of Transportation has plenary authority over construction and design 2 of state highways 3 3 The subject matter of the petition is administrative, not legislative 4 4 7 Based on the above findings, it is ORDERED that the Petition for Writ of Mandate 7 filed by Dell Knauss is DENIED ' g DONE IN OPEN COURT this 2 ' ® Y August, da of 2004 9 10 JUDGE CRADDOCK D VERSER 11 12 13 Presented by ROGER A LUBOVICH 14 Bremerton City Attorne 1 15 By ista 16 Davi Orton, ssnt City Attorney 17 W A #27123 Attorneys for Respondents 18 19 Approved as to Form 20 21 5 22 Walter M Hackett, Jr WSBA #1055 23 Attorney for Petitioner 24 25 26 ORDER DENYING PETITION FOR ROGER A LUBOVICH WRIT OF MANDATE - 2 BREMERTON CITY ATTORNEY RECENED Aug srnrga cj'1 of Y�I tOr Gl1 W sapf Washington COY ��', County of K t No (Plaintiff /Petitioner, ) ASSIGNMENT OF TRIAL DATE vs AND STATEMENT OF ARBITRABILITY (ASTD) (Defendant/Respondent This case shall be heard on the following date(s) ❑ TRIAL &TOTHER r ` -Date -Time - Date V ## Y - Trial Length - Time A - ❑ Jury - ❑ fi.�- Nonjury � y _Length Nature of Case '") c_ NOTE IF YOUR CASE IS PUT ON STANDBY, YOU WILL BE. REQUIRED TO BE IN COURT ON TWO HOURS NOTICE COUNSEL ARE REQUIRED TO BE PRESENT IN THE TRIAL COURTROOM AT 8 45 A M ON THE FIRST DAY OF TRIAL INITIAL STATEMENT OF ARBITRABILITY (LMAR 2 1) ❑ This case is subject to arbitration because the sole relief sought is a money judgment and involves no claim in excess of $35,000 exclusive of attorney fees, interest and costs (MAR 1 2) ❑ This case is not subject to mandatory arbitration because ❑ Plaintiffs claim exceeds $35,000 ❑ Plaintiff seeks relief other than a money judgment ❑ Defendant's counter or cross claim exceeds $35,000 ❑ Defendant's counter or cross claim seeks relief other than a money judgment ❑ Counsel agree that the claim exceeds $35,000 but hereby waive any claim in excess of $35,000 for purpose of arbitration (MAR 1 2) IF A SETTLEMENT CONFERENCE IS HELD, ALL PARTIES MUST BE PREPARED TO SERIOUSLY NEGOTIATE SETTLEMENT Dated J D 4GOMM{ -SIONER /SCHEDULER Court File (White) >� ,� A t CUSTODY CASES Has GAL, attorney for cc PI /Pet Atty (Yellow) ; f _,, )` child, or Investigative Officer been appointed pursuant to LCR 20(1)? Def /Res Atty (Pink) (- ._ _ _ ❑ Yes ❑ No (Goldenrod) Court Scheduler (Green) (Name of Guardian ad L/tem) ASSIGNMENT OF TRIAL DATE AND STATEMENT OF ARBITRABILITY (5/00) G \SCRl of Trial Date and Statement of Arbitrabihty cjoc kA IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 1 FOR KITSAP COUNTY 2 DELL KNAUSS, ) 3 ) NO 04- 2- 02001 -0 4 Petitioner, ) tof t Ii (OL)( `S P£:I$N MEMORANDUM 5 v ) OF LAW 6 THE CITY OF ) OF BREMERTON and ) �� 7 CITY COUNCIL OF BREMERTON, 8 � AUG d 7 9 Respondents ) �� J � 11 I 12 FACTS 13 This case concerns the refusal of the legislative body of the City of 14 Bremerton to place on the ballot for the November, 2004, General Election 15 Initiative 101 which provided in part "the City of Bremerton shall not construct a 16 vehicular traffic tunnel as part of the downtown Pedestrian/BTC Access 17 Improvements Project" 18 19 The proposed ordinance was filed with the City of Bremerton on July 12, 20 2004 and was certified as having the proper number of signatures on July23, 21 2004 22 The City Council considered the initiative but did not enact it into law 23 and for the following reasons refused to place it on the ballot, that the subject 24 matter of the initiative is not a valid subject, the issue presented is moot, and 25 26 27 PETITION MEMORANDUM OF LAW - 1 28 a submission to a vote of the citizens would be confusing in that the voters may 1 think they have an impact on the tunnel decision (Exhibit 1 ) 2 3 The Petitioner a resident and voter who had signed the Petition to the City 4 Council asks this Court to issue a Writ of Mandate directing the Council to place 5 the matter on the general election ballot 6 II LAW 7 8 As a general proposition, initiative measures may only be barred from the 9 ballot before a vote is taken if the} are not proper subjects of legislation For 10 example in Leonard v Bothell, 87 WN 2d 847, 557 p 2nd 1306 (197), the 11 Supreme Court held that a rezone was an administrative matter and not a proper 12 legislative matter In Ruano v SpgIlman 81 WN 2d 820 505, p 2d 447 (1973), 13 the Supreme Court held that a public improvement could not be halted where it 14 15 would impair the County's obligation on bonds, finally in the case of Seattle 16 Building and Construction Trades Council v Seattle, 94 WN 2d 740 (1980), it 17 was held an initiative could not block a limited access state highway to be 18 constructed under RCW 47 52 through one of the participating municipalities 19 In rejecting the proposed initiative the City relied on a letter dated July 20 13, 2004, from the Secretary f Transportation, supposedly ry po taking over the 21 project 22 23 We believe a project take -over a this point is not proper since it is a 24 proposed improvement by the State which was not approved by the 25 Transportation Commission as required by RCW 47 01 280 26 2 ,, PETITION MEMORANDUM OFLAW -2 28 V The reality of the situation is that this has been a City project improving 1 City traffic flow over streets that are designated as a State highway The City 2 executed a local agency agreement with the State to receive federal funds but all 3 4 the planning and engineering studies up to this point have been paid for by the 5 City of Bremerton (Exhibit 3) 6 In this case, the proposed improvement has not been validly assumed by 7 the State No construction contracts have been let or bonds issued Moreover, 8 this is not a Limited Access Highway Project under RCW 47 52 9 III 10 11 Because Citizens' Initiative 101 is a proper subject of legislation, it should be 12 placed on the general election ballot for November, 2004 13 Respectfully submitted, 14 15 N�V-OAI 16 WALTER M HACKETT, JR Attorney for Petitioner 17 WSBA 91055 18 19 20 21 22 23 24 LAW OFFICES OF 25 WALTER M. HACKETT, JR. 423 Pacific Avenue, #202 26 Bremerton, WA 98337 PETITION MEMORANDUM ( 360) 377 -4481 27 OF LAW - 3 28 J 30 04 01 lUr p.3 RESOLUTION NO 8 33 _ A RESOLUTION of the City Council of the City of Bremerton, Washington, taking action not to submit to the qualified electors of the City of Brem, ertor at the November 2, 2004 General Election, Initiative Petition 101 relatin; to construction of a vehicuiaz traffic ttuuiel as part of the Dowaito,tin Pedestnan/BTC Access Imp-o ern r Project WHEREAS, an Initiative Petition signed by registered voters, equal in number to at least twenty -five percent of the total votes cast for all candidates for Mayor at the las preceding City of Bremerton election, has been filed with the City Clerk as provided for in RCti�' 35 17 26D, and WHEREAS, the Petition seeks to prohinit the City born constntcting a traffic tunnel as pact of the Downtoi&m Pedestnan,BTC Access Improvements Project ( "Project ") WHEREAS, the City Clerk, through the Kitsap County Auditor, on July 23, 2004 verified the sufficiency of the signatures thereto, and Wif)'REAS, RM 35.17 260 proti ides for the matter to be presented to the City Council withui 20 days of certification of sufficiency of signatuies for either adoption of the ordinance as proposed or to foru.,rd the itutiatrvt to election on Noti ernbcr 2, 2004, and WHEREAS the Count} Auditor requires a Resolution apl:roved by the City Council authoitzing the ptaeement of the proposition on the Notiernbet Gem r211✓lecttori, and WHEREAS, the State of Washington in a letter front t],e Secretary of Transportation received by the City on July 13, 2 notified the City that the State is assurning the Project, and WHEREAS because the State has assumed junsdtetion of the Project, the City Council finds that the subject matter of the initiativ a petition is not a Lalid subject pursuant to Seattle6 and Conshuction Trades Council v Seattle, 94 Wn 2d 740 (1980) the issue presented in the initiative petition is now moot, and submitting the initiatne to a vote of the citizens would be confusing in that the , ottrs inay think may think they have an inipact on the tunnei decision, and WHEREAS, the ON Council has three options „hen reviewing the initiative petition 1) adopt the proposed ordinance, 2) submit the initiative to a vote of the ci'izens, of 39 dcctde not to submit the irutialrvE. to a vote of the citlzen,, arid WHEREAS, because of the above -noted findings, the City Council finds that it �%ould be inappropriate to submit the butiah ►e Petition to the voters, NOt� THEREFORE 2 Initianve Petition 101 jui a0 04 a1:1tp p.4 THE CITY COUNCIL OF THE CITY OF BR1r1,1ERTOV, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS SECT - 101V 1 The rentals set forth above are hereby Incorporated as if set fore herein zn full SECTI0IV ?. Inrtian petition 101 shall not be placed on the i Gencial Electron 'L''CTI N 3. Severabdin If any one or more sections, subsections, or scnterces of this Resolution are held to be unconstitutional or mn alid such decision 5hall not affect the validity of the remaining portion of this Resolution and the same shall remairi iti full force and effect SECTION 4 E e ttrve.Dat Tl e us l:Fsolutioa shall tale effect and be in :otce immediately upon its passage , PASSED by the City Council of the City of 13remerton, Washington this day of _ _ , 200.3 -- Council Prc sident APPROVED AS TO FORM AT I F,S I' ROGEK A LU>30VICH, City .Att<imey ` PAULA JOHNSTON, t'ity Clerk F \r�C 4 LResowtorsGiry Qc�cdJvnaave Pei n �� doe 2 IniliativePetruvn 101 4P Washington State Local Agency Agreerner Department of Transportation Agency City of Bremerton CFDA No 20 205 (Catalog of Federal Domestic Ass,stance) ddress 3027 Olympus Drive Project No H U EI (6 QZ-9 Bremerton, WA 98310 5 % Agreement No For OSC WSDOT Use Only The Local Agency having complied, or hereby agreeing to comply, with the terns and conditions set forth in (1) Title 23, U S Code Highways, (2) the regulations issue pursuant thereto, (3) Office of Management and Budget Circulars A 102 A -87 ai d � 33 i t) t po+icies and procedures promulgated by the Washington State Department of Transportation and (5) the federal aid project agreement enterLd;trlto tjetw4ti thl~Staib and Federal Government relative to the above project, the Washington State Department of Transportation will authorize the Local Ager1cY 1'orpr6ceed on tfie project by a separate notification Federal funds which are to be obligated for the project may not exceed the amount shown herein on line r, column 3 without wntten authority by the State, subject to the approval of the Federal Highway Administration All project costs not reimbursed by the Federal Goveilijment sha g a tt2 r9ponsibility of the Local Agency Project Description ; Name Downtown Pedestnan/BTC Access Improvement f ` - Length 0 53 miles Termini Warren Ave fir. Burwell Swe Intersec to Breme F erry Te rminal Description of Work The project consists of improvements for pedestrian and vehicular access, within the downtown Bremerton core, to the Bremerton Transportation Center (BTC) at the ferry terminal The project includes a potential ferry exit tunnel, roadway reconstruction and realignment, transit enhancements, channelization, signalization, sidewalk and streetscape improvements, illumination, landscaping and drainage improvements Estimate of Funding Type of Work (�) ( (3) Estimated Total Estimated Agency Estimated _ Project Funds Funds Federal Funds B a Ag ency 500,000 00 100,000 00 400,0 80 % b Other Consultants 3,100,000 00 620,000 00 2,480,0000 c O ther Federal Aid Participation of State 150,000 00 30,000 00 120,000 Oi Ratio for PE a Total PE Cost Estimate a +b +c +d 3,750,000 00 750,000 00 3,000,000 01 Right of Way f Agenc Other h Other Federal Aid I State Participation Ratio for RW I Total R/W Cost Estimate f+ +h +i Construction k Contract I Other m Other n Other o Agenc Federal Aid Participation State Ratio for CN q Total CN Cost Estimate (k +l +rim +n lo+ ) r Total Project Cost Estimate (e +j +y) 3,750,000 001 750,000001 3,000,000 0( Agency Official Washington State Department of Transportation By By 'tie C ary B ozeman istant Secretar/ for Highways and Local Programs APR 14 2003 Maynr, (^tty of Bremerton Date Executed DOT Form 140 -039 EF 1 Revised 10/01 i Construction Method of Financing (Check Method Selected) — State Ad and Award ❑ Method A - Advance Payment - Agency Share of total construction cost (based on contract award) ❑ Method B - Withhold from gas tax the Agency's share of total construction cost (line d, column 2) In the amount or $ at $ per month for months i_ocal Force or Local Ad and Award ® Method C - Agency cost incurred with partial reimbursement The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and procedures, and as a condition to payment of the federal funds obligated, it accepts and will comply with the applicable provisions set forth below Adopted by official action on NA Resolution /Ordinance No Provisions I Scope of Work I Preliminary engineering The Agency shall provide all the work labor rfatenals and services necessary 2 Right of way acquisition to perform the project which is described and set forth in detail in the ` Project 3 Project c. nst -uct on Description' and Type of Work In the event that right of way acquisition or actual construction of the road, for When the State acts for and on behalf of the Agency, the State shall be deemed which preliminary engineenng is undertaken as not started by the closing of the tenth an agent of the Agency and shall perform the services described and indicated in fiscal year following the fiscal year in which the agreement is executed, the Agency Type of Work on the face of this agreement, in accordance with plans and will repay to the State the sum or sums of federal funds paid to the Agency under the specifications as proposed by the Agency and approved by the State and the terms of this agreement (see Section Dn Federal Highway Administration The Agency agrees that all stages of construction necessary to provide the initially When the State acts for the Agency but is not subject to the nght of control by planned complete facility within the limits of this project will conform to at least the the Agency, the State shall have the right to perform the work subject to the min irnum values set by approved statewide design standards applicable to this class ordinary procedures of the State and Federal Highway Administration of highways, even though such additional work is financed without federal aid 11 Delegation of Authority participation The State is willing to fulfill the responsibilities to the Federal Government by The Agency agrees that on federal aid highway construction projects, the current administration of this project The Agency agrees that the State shall have the federal aid regulations which apply to liquidated damages relative to the basis of I authority to cant' out this administration The State shall review process, and federal participation in the project cost shall be applicable in the event the contractor approve documents required for federal aid reimbursement in accordance with fails to complete the contract within the contract time federal requirements If the State advertises and awards the contract, the State VI. Payment and Partial Reimbursement will further act for the Agency in all matters conceming the project as requested by the Agency if the Local Agency advertises and awards the project, the State The total cost of the project, including all review and engineering costs and shall review the work to ensure conformity with the approved plans and othLr expenses of the State, is to be paid by the Agency and by the Federal specifications Government Federal funding shall be in accordance with the Transportation Equity Act for the 21st Century (TEA 21) as amended, and Office of III Project Administration Management and Budget circulars A -102, A -87 and A -133 The State shall not Certain types of work and services shall be provided by the State on this be ultimately responsible for any of the costs of the project The Agency shall be project as requested by the Agency and described in the Type of Work above In ultimately responsible for all costs associated with the project which are not addition, the State will famish qualified persornel for the supervision and reimbursed by the Federal Government Nothing in this agreement shall be inspection of the work in progress On Local Agency advertised and awarded construed as a promise by the State as to the amount or nature of federal projects the :;uoervision and inspection shall be limited to ensunng all work is in par cipation in this project conformance with approved plans, specifications, and federal aid requirements The Agency shall bill the state for federal aid project costs incurred in conformity The salary of such engineer or other supervisor and all other salanes and costs with applicable federal and srite laws The --gercy shall mimimize the time elapsed incurred by State forces upon the project will be considered a cost thereof All between receipt of federal aid funds and subsequent payment of incurred costs costs related to this project incurred by employees of the State in the customary Expenditures by the Local Agency for maintenance general administration, manner on highway payrolls and vouchers shall be cna -o,.d as costs of the si, ,Dervision, and other overhead shall not be eligible for federal participation unless project an indirect cost plan has been approved by WSDOT IV Availability of Records The State will pay for State incurred costs on the project Following All project records in support of all costs incurred and actual expenditures payment, the State shall bill the Federal Govemment for reimbursement of kept by the Agency are to be maintained in accordance with local govemment those costs eligible for federal participation to the extent that such costs are accounting procedures prescribed by the Washington State Auditor's Office, attributable and properly allocable to this project The State shall bill the the U S Department of Transportation, and the Washington State Department Agency for that portion of State costs which were not reimbursed by the of Transportation The records shall be open to inspection by the State and Federal Govemment (see Section DC) Federal Govemment at all reasonable times and shall be retained and made 1 Project Construction Costs available for such inspection for a period of not less than three years from the final payment of any federal aid funds to the Agency Copies of said records Project construction financing will be accomplished by one of the three shall be fumished to the State and/or Federal Government upon request m ethods as indicated in this agreement V Compliance with Provisions The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing by the State for each classification The classifications of work for projects are DOT Form 140 -039 EF 2 Revised 10101 Method A — The Agency will place with the State, within (20) days after the X Traffic Control, Signing, Marking, and Roadway execution of the construction contract, an advance in the amount of the Maintenance P �e -icy's shat e of the total construction cost based on the contract award The Sta e will notify the Agency of the exact amount to be deposited with the State The Agency will not permit any changes to be made in the provisions for park S *:te will pay all costs incurred under the contract upon presentation of regulations and traffic control on this project without prior approval of the State a gress billings from the contractor Following such payments, the State will Federal Highway Administration The Agency will not install or permit to be submit a billing to the Federal Government for the federal aid participation installed any signs signals, or markings not in conformance wnti" Lhe standards share of the cost When the project is substantially completed and final actual approved by the Federal Highway Administration and MUTCD The Agencywil costs of the project can be determined, the State will present the Agency with a at its own exoe ise, maintain the ,morovement covered by this ar cement final billing showing the amount due the State or the amount due the Agency This billing will be cleared by either a payment from the Agency to the State or XI Indemnity by a refund from the State to the Agency The Agency shall hold the Federal Government and the State harmless from an shall process and defend at its own expense all claims, demands, or suits, whether Method B — The Agency's share of the total construction cost as shown on l or equity brought against the Agency, State, or Federal Government, arising the face of this agreement shall be withheld from its monthly fuel tax from the Agency s execution, performance, or failure to perform anj of the allotments The face of this agreement establishes the months to which the provisions of this agreement, or of any other agreement or contract connected witl withholding shall take place and the exact amount to be withheld each month this agreement, or arising by reason of the participation of the State or Federal The extent of withholding will be confirmed by letter from the State at the time Government in the project, PROVIDED, nothing herein shall require the Agency of contract award Upon receipt of progress billings from the contractor, the reimburse the State or the Federal Government for damages arising out of bodily State will submit such billings to the Federal Government For payment of its injury to persons or damage to property caused by or resulting from the sole participating portion of such billings negligence of the Federal Government or the State No liability shall attach to the State or Federal Government except as expressly Method C — The Agency may submit vouchers to the State in the format provided herein prescribed by the State, in duplicate, not mo .han once per month for th ^Ee costs eligible for Federal panic pat,on to he extent that such toss are directly XII Nondiscrimination Provision attributable and properly allocable to this project Expenditures by Local The Agency shall not discriminate on the basis of race, color, national ongm, or Agency for maintenance, general administration, supervision, and other sex in the award and performance of any USDOT- assisted contract and/or overhead shall not be eligible for Federal participation unless claimed under a agreement or in the administration of its DBE program or the requirements of 49 previously approved indirect cost plan CFR Part 26 The Agency shall take all necessary and reasonable steps under 49 The State shall reimburse the Agency for the Federal share of eligible project CFR Part 26 to ensure nondiscrimination in the award and administration of costs up to the amount showr on the face of this agreement At the time of USDOT - assisted contracts and agreements The WSDOT's DBE program, as audit, the Agency will provide documentation of all costs incurred on the required by 49 CFR Part 26 and as approved by USDOT, is incorporated by reference in this agreement Implementation of this program is a legal obligation project and failure to carry out its terms shall be treated as a violation of this agreement The State shall bill the Agency for all costs incurred by the State relative to Upon notification to the Agency of its failure to carry out its approved program, th the project The State shall also bJI the Agency for the federal funds paid by Department may impose sanctions as provided for under Part 26 and may, in the State to the Agency for project costs which are subsequently determined to appropriate cases, refer the matter for enforcement under 18 U S C 1001 and/or tl ineligible for federal participation (see Section DQ Program Fraud Civil Remedies Act of 1986 (31 U S C 3801 et seq ) Jll Audit of Federal Consultant Contracts The Agency if services of a consultant are required, shall be responsible for The Agency hereby agrees that it will incorporate or cause to be incorporated in audit of the consultant's records to determine eligible federal aid costs on the any contract for construction work, or modification thereof, as defined in the rules project The report of said audit shall be in the Agency's files and made and regulations of the Secretary of Labor in 41 CFR Chapter 60, which is paid for available to the State and the Federal Government whole or in part with funds obtained from the Federal Government or borrowed or the credit of the Federal Government pursuant to a grant, contract, loan, insurance An audit shall be conducted by the WSDOT Internal Audit Office in or guarantee or understanding pursuant to any federal program involving such gal accordance vith generally accepted governmental auditing standards as contract, loan, insurance, or guarantee, the required contract provisions for issued by the United States General Accounting Office by the Comptroller Federal -Aid Contracts (FHWA 1273), located in Chapter 44 of the Local Agency General of the United States, WSDOT Manual M 27 -50, Consultant Guidelines Authorization, Selection, and Agreement Administration, memoranda of The Agency further agrees that it will be bound by the above equal opportunity understanding between WSDOT and FHWA, and Office of Management clause with respect to its own employment practices when it panic pa­�!; in and Budget Circular A -133 federally assisted construction work Provided that if the applicant so If upon audit it is found that overpayment or participation of federal participating is a State or Local Government the above equal opportunity clause money in ineligible items of cost has occurred, the Agency shall reimburse is not applicable to any agency, instrumentality, or subdivision of such the State for the amount of sach overpayment or excess part,cipatnon (set go ernment which does not participate in work on or under the contract Section DC) VIII Single Audit Act The Agency also agrees The Agency, as a subrecipient of federal funds, shall adhere to the federal (1) To assist and cooperate actively with the State to obtaining the compliance Office of Management and Budget (OMB) Circular A -133 as well as all contractors and subcontractors with the equal opportunity clause and rules, applicable federal and state statutes and regulations A subrecipient who regulations, and relevant orders of the Secretary of Labor expends $300,000 or more in federal awards from all sources during a given (2) To fumish the State such information as it may require for the supervision fiscal year shall have a single or program specific audit performed for that such compliance and that it will otherwise assist the State in the discharge of its year in accordance with the provisions of OMB Circular A -133 Upon conclusion of the A -133 audit, the Agency shall be responsible for ensuring primary responsibility for securing compliance that a copy of the report is transmitted promptly to the State (3) To refrain from entering into any contract or contract modification subject Executive Order 11246 of September 24, 1965, with a contractor debarred from, e IX Payment of Billing who has not demonstrated eligibility for, government contracts and federally The Agency agrees that if payment or arrangement for payment of any of assisted construction contracts pursuant to the Executive Order the State's billing relative to the project (e g , State force work, project cancellation, overpayment, cost ineligible for federal participation, etc ) is not (4) To carry out such sanctions and penalties for violation of the equal made to the State within 45 days after the Agency has been billed, the State opportunity clause as may be imposed upon contractors and subcontractors by the shall effect reimbursement of the total sum due from the regular monthly fuel State Federal Highway Administration or the Secretary of Labor pursuant to Pall tax allotments to the Agency from the Motor Vehicle Fund No additional II, subpart D of the Executive Order Federal project funding will be approved until full payment is received unless otherwise directed the Assistant Secretary for Highways and Local Programs DOT Form 140 039 EF 3 P,-ri in/m In addition, the Agency agrees that if it fails or refuses to comply with these XV Venue for Claims and/or Causes of Action un.ie,iakings, the State may take any or all of the following actions For the convenience of the parties to this contract it is agreed that any claims (a) Cancel, terminate, or suspend this agreement in whole or in part, and/or causes of action which the Local Agency has against the State of Washington growing out of this contract or the project with which it is b) Refrain from extending any further assistance to the Agency under the concerned, shall be brought only in the Superior Court for Thurston County gram with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from the Agency, and XVI Certification Regarding the Restrictions of the Use (c) Refer the case to the Department of Justice for appropriate legal proceedings of Federal Funds for Lobbying The approving authority certifies, to the best of his or her knowledge and belief that XIII Liquidated Damages (1) No federal appropriated funds have been paid or will be paid, by or on beh, The Agency hereby agrees that the liquidated damages provisions of 23 CFR of the undersigned, to any person for influencing or attempting to influence an Part 630, Subpart 305, as supplemented, relative to the amount of Federal officer or employee of any federal agency, a member of Congress, an officer or participation in the project cost, shall be applicable in the event the contractor employee of Congress, or an employee of a member of Congress in connection wi fails to complete the contract within the contract time Failure to include the awarding of any federal contract the making of any federal grant, the making liquidated damages provision will not relieve the Agency from reduction of any federal loan, the entering into of any cooperative agreement, and the ertensior federal participation in accordance with this paragraph continuation, renewal, amendment, or modification of any federal contract, grant, loan or cooperative agreement XIV Termination for Public Convenience (2) if any funds other than federal appropriated funds have been paid or will be The Secretary the Washington State Department of Transportation may paid to any person for influencing or attempting to influence an officer or employe terminate the contract in whole, or from time to time in part, whenever of any federal agency a member of Congress, an officer or employee of Congress (1) Tlie requisite federal funding becomes , rsvailable through failure of or an employee of a member of Congress in connection with this federal contract, appropriation or otherwise &.-ant loan or cooperative affeement ht iindersigned shall complete and submit (2) The contractor is prevented from proceeding with the work as a direct the Standard Form - LLL, 'Disclosure Form to Report Lobbying, in accordance with its instructions result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense, or an Executive Order of the (3) The undersigned shall require that the language of this certification be President or Governor of the State with respect to the preservation of energy included in the award documents for all subawards at all tiers (including subgrants resources and contracts and subcontracts under grants, subgrants loans, and cooperative agreements) which exceed $100,000, and that all such subrecipients shall certify (3) The contractor is prevented from proceeding with the work by reason of and disclose accordingly a preliminary, special, or permanent restraining order of a court of competent This certification is a material representation of fact upon which reliance was jurisdiction where the issuance of such order is primarily caused by the acts or placed when this transaction was made or entered into Submission of this omissions of persons or agencies other than the contractor certification as a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U S Code Any person who fails to file the required (4) The Secretary determines that such termination is in the best interests of cc- tification shall be subject to a civil penalty of not less than $10,000 and not moi the State than $100,000 for each such failure Additional Provisions DOT Form 140 039 EF 4 � ' M � Washington State ®I® Department of Transportation Local Agency Agreement Supplement Agency Supplement Number Bremerton o NF Federal Aid Project Number Agreement Number CFDA No 20.205 HP 1998(029) LA - 5522 (Catalog of Federal Domestic Assistance) The Local Agency desires to supplement the agreement entered into and executed on April 14, 2003 All provisions in the basic agreement remain in effect except as expressly modified by this supplement The changes to the agreement are described as follows Project Description Name Ferry Tunnel Length 0 53 Termini Warren Ave & Burwell Street Intersection to Bremerton Ferry tunnel Description of Work ® No Change Reason for Suaplement Convert project into Toil Credit Niatch 1, ent /tJ4G' Estimate of Funding T of Work (1) (2) (3) (4) (5) Ty Previous Supplement Estimated Total Estimated Agency Estimated Agreement/Suppl 1 Project Funds Funds Federal Funds PE a A gency I 500,000 00 0 00 500,000 00 000 500,000 00 100 % b_Other Consultant 3,100,000 00 E � 8 25.6 92 '^ ° 0 1 -9 000 3 �-m - -� o� Sic c�1 c Other �y Federal Aid d State 150,000 00 0 00 150,000 00 000 150,000 00 Participation Ratio for PE e Total PE Cost Estimate (a +b +c +d) 3,750,000 00 --&25,492-N 4, .00 Right of Way f Agency I g Other Federal Aid h Other Participation Ratio for RW i State j Total R/W Cost Estimate (f +g +h +i) Construction k Contract m Other n Other o Agency Federal Aid Participation p State Ratio for CN q Total CN Cost Estimate k+t+m+n+o+p r Total Project Cost Estimate (e+l+q) 3,750,000 00 The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and procedures, and as a condition to payment of the Federal fu I it accepts and will comply with the applicable provisions Agenc tcl ashtngton State partment of By By Title Cagr Bazeman Assistant Secretary for Highways and Local Programs Mayor, City of RremPrton Date Executed DEC 2 Q DOT Form 140 -041 EF Revised 4/2000 / Mayor Cary Bozeman c6ozemanaa bremerton wa 239 4th Street Bremerton WA98337 July 28, 2003 Ms Kathleen Davis, Director WSDOT Highways and Local Programs P O Box 47390 Olympia, WA 98504 -7390 RE Downtown Pedestrian /BTC Access improvements, Request For Approval of Ferry Toll Credits to Match Federal Funding Dear Ms Davis The Downtown Pedestrian /Bremerton Transportation Center (BTC) Access Improvements are needed to improve ingress and egress from the BTC and relieve the congestion to the City of Bremer urban core environment The need exists currently, however, the City's current revitalization and economic development efforts will further exacerbate the traffic conflicts, further highlighting the need to separate the ferry traffic from the urban core The plan to resolve these conflicts includes constructing a ferry traffic egress tunnel to eliminate the significant vehicle /pedestrian conflicts that occur when a ferry unloads vehicles onto Bremerton's street system Congress has supported the City's vision with approximately $6 2 million to date, and we are confident that the remaining $21 8 million will also be provided, either all in their next budget cycle, or split between the next two The federal funding summary is shown in the table below Federal/ Soft Match Federal Non - Federal Requested Section of Law or Funds Match from State Federal Program Appropriations Act Available Requirement Toll Credits TEA -21 High Section 1602, TEA - Pr ton Funds 21 Authorization Act $4,700,000 80/20 $1,175,000 Section 330, Earmark 2003 Transportation Appropriations $1,490,250 100 10 0 Anticipated Earmark or Unknown SAFETEA High Anticipate Priority Funds Anticipated Funding $21,809,750 80/20 $5,452,438 Total $28,090,000 $6,627,438 a Page 2 July 28, 2003 In addition, the City is partnering with Kitsap Transit to incorporate the Phase C improvements to the BTC to address operational needs of WSF Although these Phase C improvements are funded separately through a FTA grant, the projects are integrally related and will be planned, designed and constructed cooperatively The ferry traffic egress tunnel will be under State Route 304 and carry SR 304 outbound traffic The design of the improvements is being coordinated with WSDOT through your Olympic Region Local Programs office, and with the federal government through the FHWA and the FTA Although the project improves both the state highway and Washington State Ferries facilities, and directly benefits both highway and ferry traffic, the federal funds shown are sufficient to meet the current cost estimate and there has been no request for direct WSDOT financial participation The City needs your assistance, however, to meet the local match requirements for the $4 7 million funding already in hand, as well as for the remaining $21 8 million that is coming The City is requesting that WSDOT support the project by approving the use of $6 63 million in Ferry Toll Credits to serve as the required local match for the funds being provided by Congress Your doing so will boost the City's economic development, make the state highway safer for both people and vehicles, help the ferries operate more effectively and unload on schedule, and make being a pedestrian in Bremerton pleasant again If you have questions, or need additional information regarding this request, please contact me or Gene Sampley, Director of Public Works & Utilities Thank you for your consideration of this request, we look forward to your favorable reply Sincerely, Cary Bozeman Mayor, City of Bremerton cc W Eugene Sampley, Director of Public Works & Utilities Department, City of Bremerton Gary Sexton, Director of Economic Development, City of Bremerton Vi 1! U-i 1J i. r-i.\ icu /UO 06UU i��vu{ JD�.KG11Xt J ucrl�c. �•• 1 � Washington State Temnsportation Building Department of Tr ansporiation 310 Ma ple Park Avenue S E Douglas S. MacDonAld PO 0cx47300 secrQtwy orTransportauon 0 WA 96504'300 3M7oa_7Loo rt Y. 1 000 833.8388 July 13, 2004 urer-v wsdot we gov The Hoaorable Caxy Bozeman Mayor, City of Bremerton Councilman Daren Nygren, Council President, City of Bremerton 239 Potarth Street Bremerton OVA 98337 Re Downtown Bremerton Pedestnan/BTC Access I Improvemetit Project Dear Mayor Bozeman and Councilman Nygren I write today regarding the Downtown ldrernerton Pedestrian/BTC Access Improvement Pioje.t on State Route 304 I understand that the draft Environmental Assessment stage of this project should be completed shortly. As we move fro-n the draft Etiviroamental Assessment to the final Environincl7tal Asstvsment, WSDOT must step forward to fulfill its stat'iitilr} responsibilities fcr managemer_t of this state ti,ghway proj�C State law requires WSDOT to "exercise all the powers and perform all the duties necessary, rcrovtmient, or incidental to be planning, locating, dcstgnitig, constructing, improving, repairing, operating, and maintaining (of] state highways" (See RCW 47 01260 ) We are prepared to }candle the complex scope issues and public involvement quests rented of such a project 71e Envirotunental Assessment may raise many issues that wc1I have to � addressed with the comity before the project could proceed WSDOT looks forward to continuing to work with the City of Bremerton Randy Haw, WSDOT's Olympic Reg on Adimirustrator, c2n be reacl•ed via telephone at (360) 357 3605 with any questions Sincerely, v l Donald Douglas B. Secretary of Transportation DBM Jaa cc Randy Hain, WSDOT, 47440 Larry Fhl, WSDOT, 47322 ` RECEI, FOR FILING KITSAP COUNTY CLERK AUG % 6 2004 1 DAVID W. PETERSON 2 3 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FORII 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No 04 -2- 02001 -0 Petitioner, - 12 v CITY OF BREMERTON' S ' OPPOSITION TO PETITION FOR 13 THE CITY OF BREMERTON and CITY WRIT OF MANDATE 14 COUNCIL OF BREMERTON, Respondents 15 16 I. ISSUES 17 The Department of Transportation has plenary authority regarding the 18 construction of state highways SR -304 is a state highway A citizen's initiative petition 19 is not valid if the subject matter of the petition is dictated to the City by a higher power Bremerton citizens have submitted an initiative petition directing the City of Bremerton 20 to not construct a tunnel on SR -304 Is this a valid subject for an initiative petition? 21 22 If the City does have authority to stop the State from constructing a tunnel the 23 grant of authority is from the legislature to the City Council under RCW 47 24 020 24 When authority is granted to the City Council by the legislature, the exercise of that authority is not a proper subject for an initiative. Is an initiative to prevent the City 25 Council from authorizing the construction of a tunnel a proper subject for a citizen's 26 initiative? CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th street, Bremerton, Washington 98337 MANDATE-1 Phone 360 - 473 -2345 Fax 360 -473 -5161 V i 1 II. FACTS 2 A. Summary 3 On July 12, 2004, the Bremerton City Clerk received a copy of a citizen's 4 initiative which provides "The City of Bremerton shall not construct a vehicular traffic tunnel as part of its Downtown Pedestnan/BTC Access Improvements project"' The 5 initiative seeks to prevent construction of a traffic tunnel as a part of the improvements 6 planned for State Route 304 in downtown Bremerton The initiative was certified by the 7 County Auditors office on July 23, 2004 as having enough signatures to submit to the 8 voters 2 9 On July 13, 2004, the City received a letter from Douglas B MacDonald, the 10 Secretary of Transportation informing the City that the State was assuming control of the project as lead agency 3 11 The City Council declined to submit the initiative to the voters because the object 12 of the initiative was not a proper subject matter for the initiative process 4 13 B. Background 14 Construction of the Downtown Bremerton Pedestnan/Bremerton Transportation 15 Center (BTQ Access project will include either surface or tunnel access for automobile loading and unloading from the ferry 5 The project seeks to improve commuter traffic to 16 and from the Bremerton Transportation Center and increase downtown pedestrian access 17 and safety Federal funds through the Federal Highway Administration and Federal 18 Transit Administration will be utilized 6 The project requires an Environmental 19 Assessment to satisfy both NEPA and SEPA A tunnel is one of the options for the 20 improvements The tunnel will divert traffic off the ferry This will ease traffic on 21 Washington Avenue, the present egress route from the ferry It will not change the grade of the existing roads 7 The other options are a surface option, and a "no- build" option 22 23 24 Declaration of David P Horton at Exhibit A 2 Id at Exhibit B 25 3 Id at Exhibit C 4 Id at Exhibit D 26 5 Declaration of David P Horton at Exhibit E, Declaration of Randy Hain at ¶ 4 6 Declaration of David P Horton at Exhibit E and F, Declaration of Randy Hain at 13 7 Declaration of Randy Hain at 14 CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE - 2 Phone 360 - 473 -2345 Fax 360 -473 -5161 I C. City Council Actions 2 At its start, the City of Bremerton was the lead agency on the project. Although 3 made possible by federal funds, and subject to WSDOT oversight, the City controlled the 4 process as lead agency As with all State highway projects WSDOT retained overall authority for the project in an oversight role 8 5 In this role the City Council authorized a professional services agreement with 6 KPFF Consulting Engineers to perform screening analysis for the project on February 19, 7 2003 The screening analysis was necessary to meet City, State, and Federal g environmental review requirements and to identify a preferred alternative prior to the 9 completion of the environmental permitting process 9 10 On August 13, 2003 the Council authorized a professional services agreement with Exeltech Consulting Inc to provide engineering and environmental consulting 11 services for the design of Downtown Pedestnan/BTC Access improvements. Exeltech 12 will prepare an Environmental Checklist Summary following its preparation of the 13 Environmental Discipline Reports This will be used in deciding on which design option 14 to pursue 10 15 And on March 24, 2004, the Council approved a Consultant Agreement with Sampley Consulting to manage the project and provide expertise necessary to maintain 16 project continuity, scope, and schedule 11 17 D. Involvement of the Washington Department of Transportation 18 Under the statutory scheme outlined below, WSDOT has ultimate authority over 19 state highway projects 12 Here it utilized the City as the lead agency, but retained 20 responsibility for the design and construction of the improvement 13 The Federal 21 Highway Administration also requires that WSDOT retain control over projects being built with federal funds 14 22 23 24 s Id at 3 9 Declaration of David P Horton at Exhibit G 25 10 Id at Exhibit H " Id at Exhibit I 26 12 Declaration of Randy Hain at 13 13 Id 14 Id CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE-3 Phone 360 -473 -2345 Fax 360 -473 -5161 I The City has a maintenance agreement with the State for maintenance of State 2 Highway 304 This agreement acknowledges that the State has full jurisdiction, 3 responsibility, and control to and over SR 304 The agreement assigns maintenance 4 responsibilities between the City of Bremerton and the Department of Transportation The City has also entered into a project agreement with the state for preliminary 5 engineering related to the Downtown Pedestnan/BTC Access Improvement Project 16 6 The scope of this agreement includes analysis of a potential ferry exit tunnel, roadway 7 reconstruction and realignment, transit enhancements, channelization, signalization, g sidewalk and streetscape improvements, illumination, landscaping and drainage 9 improvements 10 In summary, the State coordinated for the City to be lead agency for its convenience This allows the State to use local personnel and expertise while 11 maintaining overall control of the local highway project as required by RCW 47 01 and 12 the Federal Highway Administration 13 14 E. Initiative language 15 The ordinance proposed by the initiative reads The City of Bremerton shall not construct a 16 vehicular traffic tunnel as part of its Downtown 17 Pedestnan/BTC Access Improvements project. 17 18 F. Recent Developments 19 The State has assumed control of the project as lead agency Ina letter dated July 13, 2004 Secretary of Transportation Douglas MacDonald gave notice of their intent to 20 take over administration of the project 21 As we move from the draft Environmental Assessment to the final Environmental Assessment WSDOT must step 22 forward to fulfill its statutory responsibilities for 23 management of this state highway project 24 State law requires WSDOT to "exercise all the powers and perform all the duties necessary, convenient, or incidental 25 26 15 Declaration of David P Horton at Exhibit J 16 Id at Exhibit K 17 Id at Ex A CITY OF BREMERTON'S OPPOSITION ROGER LU13OVICH BREMERTON MY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE-4 Phone 360473 -2345 Fax 360473 -5161 � I I to the planning, locating, designing, constructing, Improving, repairing, operating and maintaining [of] state 2 highways" (See RCW 47 01 260 ) 18 3 The City and WSDOT then executed an agreement to coordinate the transfer of 4 responsibility 19 5 III. ARGUMENT 6 A. Statutory Framework 7 As a first class city, the City of Bremerton has the power [t]o lay out, establish, open, alter, widen, extend, grade, 8 pave, plank, establish grades, or otherwise Improve streets, alleys, avenues, sidewalks, wharves, parks, and other public 9 grounds 21 10 And [t]o construct and keep in repair bridges, viaducts, and 11 tunnels, and to regulate the use thereof 22 12 But the proposed tunnel is part of SR -304, a state highway 23 And state highways 13 are the responsibility of the Washington State Department of Transportation WSDOT is 14 vested by the legislature with the power to 15 perform all the duties necessary, convenient, or Incidental to the planning, locating, designing, constructing, 16 improving, repairing, operating, and maintaining state highways, including bridges and other structures, culverts, 17 and drainage facilities and channel changes necessary for 18 the protection of state highways .24 19 This plenary power over state highways within cities is somewhat limited by 20 RCW 47 24 020 The jurisdiction, control, and duty of the state and city or 21 town with respect to [state highways within cities] is as 22 follows 23 24 18 Id at Exhibit C 19 Id at Exhibit L 25 20 RCW 35 01010, Bremerton City Charter 2' RCW 35 22 280 (7) 26 22 RCW 35 22 280 (12) 23 RCW 47 17 556 "RCW 47 01 260 CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street Bremerton, Washington 98337 MANDATE-5 Phone 360473 -2345 Fax 360 -473 -5161 I 1 (1) The department [of transportation] has no authority to change or establish any grade of any such street without 2 approval of the governing body of such city or town, except 3 with respect to limited access facilities established by the commission 25 4 Here, it is agreed that the portion of SR -304 at Issue is not a limited access 5 facility And although the tunnel would be built below existing streets, it is a by -pass 6 route The grade of the existing highway (on Washington Avenue, Pacific Avenue and 7 Burwell) will not be affected 26 As will become evident below, even if the proposed 8 tunnel is a grade change, the initiative is still invalid 9 In summary, the proposed tunnel is being built as part of a state highway system 10 WSDOT has plenary authority to place and construct state highways except on limited access highways, or when the grade of an existing street will change 11 B The Subject Matter of the Proposed Initiative is Administrative, and Not 12 Subject to Initiative 13 Bremerton's City Charter provides for the process of initiative and referendum by its citizens Procedural requirements must be met before an initiative is valid 27 Here 14 those procedural requirements were met But in addition to procedural requirements 15 there are two court created tests that must be applied to initiative measures to determine if 16 they concern valid subjects for the exercise of the power of initiative. 17 In order for a petition to be valid 1) the character of the action must be legislative, 18 not administrative And 2) the grant of authority for the proposed action must be given to the City as a corporate entity, not to the City Council These tests are outlined and 19 described below 20 21 22 23 24 25 26 25 RCW 47 24 020 26 Declaration of Randy Hain at 14 27 See RCW 35 17 240 — 35 17 360 CITY OF BREMERTON'S OPPOSITION ROGER LU13OVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE-6 Phone 360 -473 -2345 Fax 360 -473 -5161 1 2 Is the Proposed Ordinance Beyond the Scope of the 3 TEST 1 Initiative Power? Is it Administrative - Is it 4 What are ? Does it pursue a plan NO Legislative— trying to do? already adopted by the Is the subject of 5 Stop the construction Council itself or some the initiative 6 of a State power superior to it? permanent or Highway Ruano v Spellman 81 general or a 7 project W 2d 820 (1973) new policy or plan'? Ruano 8 YES YES 9 NO NO 10 Is the grant 11 of authority :O:R Test 2 to the legislative What gives us 12 authority of Is the grant of the authority to the City authority to the do it? 13 Lince v City as a Bremerton corporate 14 25 Wn App entity Lince 309 (1980) 15 16 YES YES 17 18 19 Not subject 20 to initiative Subject to Initiative Power 21 power 22 23 24 25 26 CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washmgton 98337 i I Test 1: Legislative of Administrative? 2 The first test applied by the courts In Washington is whether the underlying 3 council action is legislative or administrative This test looks at what is trying to be 4 accomplished by the Initiative The power of the people to adopt legislation directly through the Initiative process is limited to actions that are legislative 28 When an action is 5 administrative the decision is not subject to Initiative or referendum powers 6 An act is characterized as legislative or administrative by asking two questions 7 1 If the action relates to a subject of a permanent and general character, then 8 they are regarded as legislative Those providing for subjects of a temporary 9 and special character are regarded as administrative 2 The power to be exercised Is legislative in nature if it prescribes a new policy 10 or plan But it is administrative in nature if it merely pursues a plan already 11 adopted by the legislative body Itself or some power superior to it 29 12 The decision to construct a tunnel is of a permanent and general character But 13 the decision whether to build a tunnel will be made by a higher power, WSDOT As 14 such, the answer to the second question dictates the proposed action is administrative 15 Because the City cannot control the construction of a state highway, a decision concerning whether to construct the street improvement project to SR 304 by means of a 16 tunnel is not a legislative decision of the city council The decision to construct a mayor 17 street Improvement to SR 304 in downtown Bremerton by means of a vehicular traffic 18 tunnel merely pursues a plan already adopted by some power superior to It In this case 19 that power is the State 20 The key decisions relating to this project are no longer subject to the control of 21 the City Council This is true for the underlying decision whether to pursue the project at all and also for the decision whether the project should be completed by means of a 22 tunnel 23 Seattle Building and Construction Trades Council v Seattle 30 is illustrative An 24 initiative was proposed by citizens in Seattle to withdraw the city's participation In a 25 26 28 Ruano v Spellman, 81 Wash 2d 820, 505 P 2d 447 (1973) 29 Citizens for Financially Responsible Government v Spokane, 99 Wn 2d 339 (1983) 30 94 Wn 2d 740, 620 P 2d 82 (1980) CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE - 8 Phone 360 -473 -2345 Fax 360473 -5161 I limited access highway project (an improvement to a portion of Interstate 90) As here, I- 2 90 was designated as a state route in RCW 47 17 140 The project was financed 3 exclusively by federal and state highway funds The initiative was challenged as being 4 beyond the powers of the initiative process The Supreme Court concluded that the initiative process did not apply because the actions remaining to the City of Seattle were 5 administrative in nature and thus not subject to a citizen's initiative 6 The city had no authority to act in a legislative capacity regarding the location and 7 construction of the limited access facility The city could not ban construction of the 8 facility The city could not refuse to cooperate in construction once the plan had been 9 adopted The key decisions regarding the project were made by the state Here, the City cannot stop construction of the highway The State will exercise its 10 plenary authority over state highways and move forward with or without the consent of 11 the City Because the action is administrative and this is not a proper subject for a 12 citizen's initiative, there is no need to address the second test 13 What if we are wrong? 14 It could be argued that the tunnel is a grade change and requires City Council 15 approval under RCW 47 24 020. The City does not agree with this position The tunnel will be a new diversion for traffic from the tunnel, and will not change the grade of the 16 existing highway 31 If RCW 47 24 020 is applicable, the City Council can choose to not 17 approve the tunnel construction This action would be legislative, and the first test is 18 satisfied But, the second test, described below, dictates the same result — this is not a 19 proper subject for initiative 20 Test 2: Is the Underlying Grant of Authority Given to the City as a Corporate Entity or to its Governing Body? 21 The second test to determine if a city council action is subject to the initiative process 22 is whether the underlying grant of authority by the state legislature for the action being 23 taken is to the city as a corporate entity or to its legislative authority (which is the city 24 council for cities) 32 25 26 3 1 Declaration of Randy Hain at 14 32 See Lince v Bremerton, 25 Wn App 309 (1980), and Leornard v Bothell, 87 Wit 2d 847 (1992) CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE-9 Phone 360 -473 -2345 Fax 360 -473 -5161 I If the grant of authority is to the city as a corporate entity, direct legislation by the 2 people in the form of initiative or referendum is permissible If the grant of power is to 3 the legislative authority of the city, then initiative and referendum is prohibited 33 4 The City of Bremerton is a charter city The constitution specifically provides, however, that city 5 charters must be "consistent with and subject to the Constitution and laws of this state " Wash Const Art 11, s 6 10 In State ex rel Guthrie v Richland, 80 Wash 2d 382, 7 384 494 P 2d 990, 991 (1972), the court stated that where the general law grants authority to the legislative g authority of a city, that authority may not be exercised by the city as a corporate entity, nor is the exercise of that 9 authority by the legislative authority subject to repeal, amendment or modification by the people through the 10 initiative or referendum procedure See Trautman, Initiative and Referendum in Washington A Survey, 49 11 Wash L Rev 55, 82 (1973) 34 12 13 Lance v Bremerton 35 is directly on point RCW 47 01 260 gives the governing body of the City of Bremerton authority to approve changes of grade on state highways 14 within the City Because this statute directly references the governing body, the primary 15 grant of authority by the state legislature is to the council It is not subject to initiative In 16 Lance a citizen's initiative attempted to modify the City's zoning ordinance. The first test 17 as to whether it was a legislative action was met The change was a permanent and 18 general change to the zoning code But the legislature has delegated the zoning power 19 specifically to the governing body of the City. Because of this, changing the zoning code is not a proper exercise of the initiative power 36 If the authority is granted to the 20 City in its corporate capacity, it is a proper subject for initiative For example, if the 21 grant of authority stated "first class cities have the power to approve grade changes" or if 22 a RCW 35 22 280 gave authority to control state highway projects to cities then a 23 citizen's initiative would be proper 24 25 33 Id 26 34 Id at 312 35 Id 36 Id See also Leonard v Bothell, 87 Wash 2d 847, 557 P 2d 1306 (1976) CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE - 10 Phone 360473 -2345 Fax 360473 -5161 I Because the grant of authority to approve, or disapprove of grade changes to state 2 highways within a City is delegated to the legislative body of the City, it is not a proper 3 subject for a citizen's initiative C. The Subject Matter of the Initiative is Rendered Moot by the Action of the 4 WSDOT. 5 A City cannot be ordered to hold an election on an initiative ordinance when the 6 issue addressed by the ordinance is moot While the City was the lead agency on the 7 project, and was responsible for the design and construction of the project, WSDOT has 8 always had statutory responsibility for the project They have taken over as lead agency As such, the City of Bremerton will not "construct a vehicular traffic tunnel as part of its 9 Downtown Pedestnan/BTC Access Improvements project " 10 This situation is analogous to the facts of Yakima v Huza 37 The citizen's of 11 Yakima sought to adopt an ordinance repealing certain taxes By the time the issue was 12 tried the ordinances had already been repealed by the City Council The initiative 13 proponents sought to submit the ordinance to the voters even though the proposed ordinance would repeal no present taxes The Supreme Court held that 14 [t]he city cannot be ordered to hold an election in this 15 instance because it would be requiring the city to erform a useless act, and to expend public funds uselessly 3 16 Because WSDOT will move forward with design and construction on this state 17 highway project regardless of the City of Bremerton's objections, requiring the City to 18 submit this issue to the voters of the City would be requiring the City to perform a useless 19 act and expend public funds uselessly 20 IV. CONCLUSION 21 The subject matter of the initiative is moot The state has plenary authority over 22 the project Any authority of the City was, and is, subordinate to WSDOT. Because the details of the construction of the state highway at issue rest with the state (a higher 23 power), an initiative to adopt a city ordinance that gives direction to the City is not a 24 proper subject for an initiative And if there authority to deny the state the right to 25 construct a tunnel, that right rests solely with the City Council. And under the holding in 26 37 67 Wash 2d 351, 407 P 2d 815 (1965) " Id at 360 CITY OF BREMERTON'S OPPOSITION ROGER LUBOVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE - 11 Phone 360 -473 -2345 Fax 360473 -5161 I Lance the exercise of this power is not subject to the initiative process Petitioner's 2 request for the issuance a writ of mandate must be denied 3 Dated this day of August, 2004 ROGER A LUBOVICH 4 Bremerton City Atto ey 5 6 By David Horton, ssistant City Attorney 7 WSB # 27123 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CITY OF BREMERTON'S OPPOSITION ROGER LU13OVICH BREMERTON CITY ATTORNEY TO PETITION FOR WRIT OF 239 4th Street, Bremerton, Washington 98337 MANDATE - 12 Phone 360 - 473 -2345 Fax 360 -473 -5161 AUG -25 -2004 WED 01:05 PM 6` " * SW REGION FAX NO. 7,0 905 2222 P. 02/03 1 RECEIVED FOR FILING 2 KITSAP COUNTY CLERK 3 AUG 2 g 2004 4 DAVio W, PETERSOJV 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KITSAP 9 DELL KNAUSS, NO 04 -2- 02001 -0 10 Petitioner, DECLARATION OF RANDALL A. 11 V. HAIN, P E, WSDOT THE CITY OF BREMERTON and 12 CITY COUNCIL OF 13 BREMERTON, 14 Respondents. 15 16 17 18 19 I, Randall A Hain, P E, affirm under penalty of penury under the laws of the State of 20 Washington that the following is a true and correct statement to the best of my knowledge 21 1 I am the Regional Administrator for the Washington State Department of 22 Transportation (WSDOT), Olympic Region, as well as a licensed professional engineer I 23 2 . The WSDOT, Olympic Region, has the ultimate decision- making authonty for the 24 proposed State Route 304 Downtown Bremerton Pedestrian/BTC Access Improvement Pioject, 25 pursuant to RCW 47.01.260, where the law requires the department to "exercise all the powers DECLARATION OF RANDALL A HAIN, 1 Attorney General of Washington PE, WSDOT Transportation & Public Constriction Division 905 Plum Sheet, Building I POB 40113 Olympia, WA 98504 -0113 (360)753 -6126 AUG -25 -2004 WED 01;06 PM V SOT SW REGION FAX NO. _ - 0 905 2222 P. 03/03 1 and perform all the duties necessary, convenient, or incidental to the planning, locating, designing, 2 constructing, improving, repairing, operating, and maintaining state highways ." 3 3 Although the WSDOT has full decision - making authority over all aspects of state 4 highway location, design, construction, operation and maintenance, it often works with local 5 jurisdictions, such as the City of Bremerton, on highway design and/or construction projects 6 Sometimes, the WSDOT will permit a local jurisdiction to be the lead agency on a project, which 7 means that the city or county merely coordinates the administration of a project The WSDOT, 8 however, remains solely responsible for approving design, construction contracts, project 9 inspections and acceptance, and other project features WSDOT retains all authority to administer 10 a project, at any time that it sees fit Further, when there are Federal Highway Administration 11 (FHWA) funds in a project, as is the case for the SR 304 improvement, FHWA requires that the 12 WSDOT be responsible for the highway project. FHWA also requires that WSDOT sign the 13 environmental documents. Since the environmental aspects of the SR 304 project aie complex 14 and require public involvement, the WSDOT has decided to exercise is statutory authority and 15 become lead agency 16 4 At this juncture, one of the alternatives being considered to improve ferry traffic 17 flow on SR 304 is the construction of a 930 foot tunnel to more efficiently direct a percentage of 18 the flow of exiting ferry traffic. Ferry traffic will still have the option of exiting into the City of 19 Bremerton by Washington Street, basically in same manner and at the same giade as is currently 20 available to travelers 21 22 SIGNED this day of August, 2004 Olympia, Washington 23 e , 24 RANDALL A HAIN, P E Regional Administrator 25 Olympic Region Washington State Department of Transportation DECLARATION OF RANDALL A HAIN, 2 Attorney General of Washington PE, WSDOT Transportation & Public Construction Dtvtsion 905 Plum Street, Building 3 POB 40113 Olympia, WA 98504-0113 (360)753 -6126 f Y I, 1 2 3 RECEIVED FOR FILING KITSAP COUNTY CLERK 5 PAVIw q, 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No 04 -2- 02001 -0 Petitioner, 12 v DECLARATION OF DAVID P HORTON 13 THE CITY OF BREMERTON and CITY 14 COUNCIL OF BREMERTON, Respondents 15 16 David P Horton declares 17 1 I am over the age of eighteen and am competent to testify I make this 18 declaration from personal knowledge 19 2 I am the Assistant City Attorney for the City of Bremerton 3 Attached as Exhibit A is a true and correct copy of Initiative 101 20 4 Attached as Exhibit B is a true and correct copy of Kitsap County Auditor's 21 Certificate of Sufficiency regarding Petition Initiative 101 22 5 Attached as Exhibit C is a true and correct copy of July 13, 2004 23 correspondence from Douglas B MacDonald 24 6 Attached as Exhibit D is a true and correct copy of City of Bremerton City Council Resolution No. 2933 25 7 Attached as Exhibit E is a true and correct copy of April 29, 2002 26 correspondence from Mayor Bozeman enclosing cost estimates and concept design for the _ 1 ROGER A LUBOVICH BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 360 -473 -2345 Fax 360 -473 -5161 I proposed tunnel 2 8 Attached as Exhibit F are true and correct copies of December 16, 2002 3 correspondence from Congressman Norm Dicks and July 28, 2003 correspondence from 4 Mayor Cary Bozeman 9 Attached as Exhibit G is a true and correct copy of City of Bremerton City 5 Council Agenda Bill No 03 -0326 6 10 Attached as Exhibit H is a true and correct copy of City of Bremerton City 7 Council Agenda Bill No 03 -149 g 11 Attached as Exhibit I is a true and correct copy of City of Bremerton City 9 Council Agenda Bill No 04 -046 10 12 Attached as Exhibit J is a true and correct copy of Agreement DC -00732 between the State of Washington and the City of Bremerton 11 13 Attached as Exhibit K is a true and correct copy of Local Agency Agreement 12 No LA 5522 between the Washington State Department of Transportation and the City of 13 Bremerton 14 14 Attached as Exhibit L is a true and correct copy of August 5, 2004 Letter of 15 Understanding between the City of Bremerton and Washington State Department of Transportation 16 I declare under penalty of penury under the laws of the State of Washington that 17 the foregoing is true and correct 18 Dated Aousf 94 , 2004 at Bremerton, Washington 19 20 5!;ID NORTON 21 22 23 24 25 26 - 2 ROGER LUBOVICH BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 3 60 -473 -2345 Fax 360 -473 -5161 INITIATIVE 101 "Citizens Against The Tunnel (GATT)" Wants to Give you the RIGHT TO VOTE ON A TUNNEL INITIATIVE PETITION FOR SUBMISSION TO THE CITY COUNCIL OF BREMERTON, WASHINGTON To the City Clerk of the City of Bremerton, Washington We, the undersigned registered voters of the City of Bremerton, Washington, respectfully direct that this petition and the proposed ordinance contained herein entitled An ordinance prohibiting construction of a downtown tunnel be enacted into law and furthermore if the City Council fails to enact this ordinance that it be submitted to a vote of the people at a regular or special election to be held on a date and in the manner required by the Revised Code of Washington, and each of us for himself or herself says I have personally signed this petition, I am a legal voter of the City of Bremerton Washington my residence address is correctly stated and I have knowingly signed this petition only once Statement of Action Sought The purpose of this initiative is to prohibit the City of Bremerton from constructing a vehicular traffic tunnel as part of the Downtown Pedestrian/BTC Access Improvements project Such an initiative is authonzed by the Bremerton City Charter Section 5 and Section 36, adopting RCW 35 17 240 through RCW 35 17 360 Text of Ordinance The proposed ordinance reads as follows Ordinance _(Initiative #101) An ordinance of the City of Bremerton prohibiting constriction of a vehicular traffic tunnel as part of the Downtown Pedestrian/BTC Access Improvements The City of Bremerton Does Ordain Section l The City of Bremerton shall not construct a vehicular traffic tunnel as part of its Downtown Pedestrian/BTC Access Improvements project Warning Every person who signs this petition with any other than his or her true name, or who knowingly signs more than one of these petitions, or signs a petition seeking an election when he or she is not a legal voter, or signs a petition when he or she is otherwise not qualified to sign, or who makes herein any false statement, shall be guilty of a misdemeanor CITY OF BREMERTON INITIATIVE TO THE PEOPLE CITY OF BREMERTON VOTERS SIGN BELOW Petitioner s St Petitioner s Residence Address nature Date Petitioner's Printed Name Must reside within City limits of Bremerton City or Town Zip Coun I Q 2 3 4 5 6 7 8 9 10 MAIL COMPLETED PETITIONS TO CITIZENS AGAINST THE TUNNEL (CATT) PO Box 502, Bremerton, WA 98337 (360) 373 -1594 e r 07/23/2004 15 58 FAX 360 -_/ 5769 KITSAP COUNTY ELEC,,ONS X002 4 Karen Flynn K1tsap County Auditor- Elections & Voter Registration BHiNG 1026 Sidney Avenue, Suite 175 + Port 0 chard, Waslnngton 98366 -4678 Telephone (360) 337 -7128 • Facsini le (360) 337 -5769 Adi Ariwoi Ftnanc'al Services Mana Winnie Flores -Log Chief Deputy Audi CERTIFICATE OF SUFFICIENCY I hereby certify, in accordance with RCW 35,17.260, that the Petition Initiative 101 from the City of Bremerton, Washington (Citizens Against The Tunnel), was signed by at least twenty -five percent (2,060 of 8,23 8) of the votes cast for all candidates for mayor at the last general election at the last preceding general election. WITNESS my hand and official seal of office affixed this 23' day of July 2004, V , i l \ KARBIV FL '� • �,/� f Kltsap County Auditor B u Administration Accounts payable payroll Vehicle Llcenaing (380) 337 -7129 (300) 337 -7122 (360) 337 -7729 (360) 337-4440 onaln Public Records Fax 337-4645 Fax. 337 -7016 Fax: 337.7010 C__ ... ._._ (360) 337 4935 07/13/04 13 12 FAX 360 _6 6800 WSDOT SECRETARY'S uFFICE 1 0002 V Aft W79 Washington State Department Of Transportation Transportation Bullding Douglas 03. MacDonald 310 Maple Park Avenue 5.E Secretary of Transportation P.0 Box 47300 Olympla. WA 96504 -7300 360 - 705 -7000 TTY, 1- 800 - 833.6388 July 13, 2004 www wsdot wa gov The Honorable Cary Bozeman Mayor, City of Bremerton Councilman Daren Xygren, Council President, City of Bremerton 239 Fourth Street Bremerton WA 98337 Re. Downtown Bremerton Pedestrian/BTC Access Improvement Project Dear Mayor Bozeman and Councilman Nygren: I write today regarding the Downtown Bremerton Pedestrian/J3TC Access Improvement ProJect on State Route 304. I understand that the draft Environmenta Project Assessment stage of this should be completed shortly. As we move from the draft Environmental Assessment to the final Environmental Assessment, WSDOT must step forward to fulfill its statutory responsibiliti highway project s for management of this state State law requires WSDOT to "exercise all the powers and perform all the duties neees convenient, or incidental to the planning, sary, C designing, constructing, " S, improving, repairing, operating, and maintaining [of) state highways (See RCytr 47 01.260 ) We are prepared to handle the complex scope issues and public involvement question required Of such a project. The Environmental Assessment may raise many Issues that will have to be addressed with the community before the project could proceed WSDOT looks forward to continuing to work with the City of Bremerton Randy Hain, WSDOT's Olympic Region Administrator, can be reached via telephone at (360) 35 7 -2605 with any questions, Sincerely, Douglas 13. acDonald ScCretary of Transportation DBMJaa cc Randy Hain, WSDOT, 47440 Larry Ehl, WSDOT, 47322 C RESOLUTION NO. 23 33 A RESOLUTION of the City Council of the City of Bremerton, Washington, taking action not to submit to the qualified electors of the City of Bremerton at the November 2, 2004 General Election, Initiative Petition 101 relating to construction of a vehicular traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements Project WHEREAS, an Initiative Petition signed by registered voters, equal in number to at least twenty -five percent of the total votes cast for all candidates for Mayor at the last preceding City of Bremerton election, has been filed with the City Clerk as provided for in RCW` 35 17 260, and WHEREAS, the Petition seeks to prohibit the City from constructing a traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements Protect ( "Project") WHEREAS, the City Clerk, through the Kitsap County Auditor, on July 23, 2004, verified the sufficiency of the signatures thereto; and WHEREAS, RCW 35 17 260 provides for the matter to be presented to the City Council within 20 days of certification of sufficiency of signatures for either adoption of the ordinance as proposed or to forward the initiative to election on November 2, 2004, and WHEREAS, the County Auditor requires a Resolution approved by the City Council authorizing the placement of the proposition on the November General Election, and WHEREAS, the State of Washington, in a letter from the Secretary of Transportation received by the City on July 13, 2004, notified the City that the State is assuming the Project, and WHEREAS, because the State has assumed jurisdiction of the Project, the City Council finds that the subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v. Seattle, 94 Wn 2d 740 (1980), the issue presented in the initiative petition is now moot, and submitting the initiative to a vote of the citizens would be confusing in that the voters may think may think they have an impact on the tunnel decision, and WHEREAS, the City Council has three options when reviewing the initiative petition: 1) adopt the proposed ordinance, 2) submit the initiative to a vote of the citizens, or 3) decide not to submit the initiative to a vote of the citizens; and WHEREAS, because of the above -noted findings, the City Council finds that it would be inappropriate to submit the Initiative Petition to the voters; NOW THEREFORE i Initiative Petition 101 rr THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS SECTION 1. The recitals set forth above are hereby incorporated as if set forth herein in full SE_ CTION2. Initiative Petition 101 shall not be placed on the November General Election SECTION 3. Severabtlrty If anyone or more sections, subsections, or sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Resolution and the same shall remain in full force and effect. SECTION4. E ectzve Date This Resolution shall take effect and be in force immediately upon its passage PASSED by the City Council of the City of Bremerton, Washington this day of 7 2004 DAREN NYGREN, Counc President APPROVED AS TO FORM ATTEST 4 ffl -1 E a RA. L H, City torn A J N, City Clerk R \LEGAUResolutionACity CouncillImdahve Petition doc 2 Initiative Petition 101 Ma Cary Bozeman April 29, 2002 Congressman Norm Dicks 2467 Rayburn House Office Bldg Washington DC 20515 Dear Representative Dicks You'll find enclosed the cost estimates and concept design for the Pacific Avenue tunnel This tunnel will catalyze a solution for the conflict created by the departing vehicular traffic from the Bremerton ferry Currently, no holding area exists for the vehicles, a situation which consistently clogs the main downtown streets with each vessel arrival The engineered solution moves the outgoing two lanes of ferry traffic from the waterfront Washington Avenue to a tunnel running west on First Street, north on Pacific Avenue and exiting west on Burwell Avenue The tunnel enables Bremerton's core to become pedestrian friendly Even for today's Bremerton pedestrian, crossing Washington Avenue during ferry arrivals can prove to be a daunting task Compounded with the city's future projects, a pedestrian- friendly environment is not only desirable, it is paramount for access to the new Maritime Park, the Navy park on Pacific Avenue, the regional conference center, the new government center, the Navy parking garage, new condominiums on Washington Avenue, a projected entertainment center, and unproved circulation and pedestrian amenities All of these developments are projected to commence construction in the next two years As we know, the tunnel approval is crstncal to this vitalization effort The entire South Puget Sound water corridor, in both transportation and recreational interests, will receive quantum enhancement by seizing this uruque, one -tune opportunity With this foresight in mind, the need for immediate action cannot be underscored enough The attached total tunnel construction cost is estimated at $17,093,362 plus contingencies of $6,837,000 The projected architect and engineering, including EIS and NEPA permitting, totals $3,862,557 The entire project would primarily be spread over the 2003, 2004, and 2005 calendar years Engineering, permitting and iiutial Phase I construction in the year 2003 will require estimated funding between $4,500,000 and $5,100,000, engineering and construction in 2004, in the sum of $8,400,000, and construction and contingencies in 2005 ranging between $8,000,000 and $12,400,000 On behalf of the City of Bremerton, Kitsap County and the entire Olympic Peninsula communities, I can not thank you enough for investing in this tremendous opportunity S erely, __ �2r__ Mayor Cary Bozeman I I I CITY OF B REMERTON Ferry Exit Traffic Transportation Project E E,�� _ FUTURE GOVERNMENT CENTER a i ri'EYERGREEN PARK UEM� I i I ,a slNO yi ,. vu I s I ! _ I I - FuruRE Nousl i - i " - MARINA EXPANSION TLNNEI BOARDWALK r� �--- r - , FUTURE CON NTER PUGET SOUND N/WAL SHIPYARD - ' I ` \� t EUM L D \\, �• \ `t \..,`. �\ / I ` c -- �' MARINA \`\ t S N R \ a • s. � ,\ v 1 MARITI 1 I CITY of BREMERT ®N UDBB TRANSPORTATION IMPROVEMENT S T IJUY rK 2003 Studies Duration Qtr 2 Qtr 3 Qtr 4 Qtr 1 2004 40 Wks Qtr 2 Qtr 3 Qtr 4 Qtr 1 Qtr 2 2005 2006 Qtr 3 Qtr 4 Qtr 1 Qtr 2 Qtr 3 Qtr 4 Qtr 1 Qtr 2 Kick -Off 0 wks � 613 Data Research 10 wks nalysis 10 wks ve Development 10 Wks 6 Stakeholder Involvment 0 wks 7 Engineering Sceening --~ -- 10/18 ; _ I 10 wks 8 Stake holder Involvement �- 0 wks 9 Select Preferred Options '" - -' 12/27 0 Wks , 10 Refine Preferred Tunnel Concept _ 10 wks 12127 11 Refine Temp Facilities Concept 10 wks 12 Pre - Design Complete 0 wks 13 Final Design, 317 50 wks 14 30% Design Package 16 wks , 15 OwnedStakeholder Revew 3 wks 16 60% Design Package T 12 wks 17 Owner Stake holder Review __� -- 3 wks 18 100% Design Package 12 wks 19 Owner Stakeholder Review 2 wks 20 Final Design Package 2 wks 21 Design Complete 0 wks 22 Final Design, Tunnel 70 12/12 Wks , 23 30% Design Package 20 wks 24 Owner /Stakeholder Revew 2 wks 25 60% Design Package 20 wks , 26 Owner Stake holder Review 2 wks I City of Bremerton Transportation Improvement str►r1w 9 -loo., ID Task Name 2003 27 100% Design Package ! Duration Qtr 2 Qtr 3 Qtr 4 Qtr 1 2004 20 Wks Qtr 2 Qtr 3 Qtr 4 Qtr 1 Qtr 2 2 _ Qtr 3 Qtr 4 Qtr 1 Qtr 2 20GG 28 Owner Stakeholder Review Qtr 3 Qtr 4 Qtr 1 2 Qtr 2 jw � wks � , 29 Final Design Package _ r 4 Wks 30 Design Complete 0 Wks 31 Permit Process_____ "� _ _ 75 Wks 7/9 32 EIS Process �R__ -'_ " ""�-- 75 Wks 33 Approval for Temp Facilities I ___ _ , _ 48 Wks 34 - Approval for Entire Tunnel 75 wlcs Shoreline and Building Permits ~ ' Y ( _ I 75 wks 36 Approval for Temp Factli ii; j 37 Approval for Entire Tunnel 75 Wks 38 Phase 1 Constru ctionTempora ry Facilltl� 33 Wks 39 Bid and Award Contract _ ` 6 Wks 40 Temp Utilities �`�`�" " _ 26 Wks 41 Temp, StreeMaffic mos. _ d �26 Wks 42 System Crossover - 1 wk 43 Phase 2 Construction, Tunnel � 93 Wks 44 Bid and Award Contract 8 Wks 45 _ Demolition �� ' ` �" 16 wks - _ Excavation and Shoring 32 Wks 47 Tunnel and Wall Construction 32 wks 48 _ Tunnel Systems Installation ; 24 wits 49 Street Improvements, Signals, Signagc I T 16 wks 50 Project Complete " ° 1 0 Wks 4/2U City of Bremerton Transportation Improvement Study, 2 -lane Ferry FYit TiiP, CITY OF BREMERTON 2 -Lane Ferry Exit Lane Tunnel under First and Pacific SUMMARY PROJECT SCHEDULE Date 4/25/02 2002 2003 2004 2005 2006 Pre - Design or TS &L Study EIS / NEPA Shoreline and Building permits etc Design - Temporary Facilities Design - Tunnel Construction - Temporary Facilities Construction - Tunnel City of Bremerton "r I ransportation Improvement Study 2-Lane Ferry Exit Lane Tunnel Under First and Pacific A/15'5/02 I I Category/Description Unit Unit Quantity ost Tem Facilities Price ,Porary Utilities L S $ 200,000 $ 200,000 Temporary Ferry ops L S $ 1,000,000 $ 1,000,000 Traffic Control L S $ 250,000 1 $ 250,000 0 0 5 st 0 0 0 0 0 0 0 0 0 0 0 0 Site Work Demolition L S. $ 250,000 1 $ 250,000 Temportary Shoring Sq Ft $ 25 55,0()o $ 1,375.0100 Excavation for Tunnels Cu Yds $ 20 35,424 $ 708,481 Excav For Cut Walls Cu Yds $ 20 5,481 $ 109,630 r Contaminated Materials Allowance L S $ 250,000 1 $ 250n,Onoon Construction Dewatenng L S $ 250.000 1 $ 250,000 Utility Relocation L S $ 500,000 1 $ 500,000 Tunnel Structures Tunnel Concrete Lin Ft $ 4,500 111100 $ 4.950.000 Tieback Entry/Exit Walls, 10' avg Sq Ft. $ 120 4.000 $ 480,000 Burwell Street Widening Tieback Wall, 30 it avg. Sq Ft. $ 120 6,000 Backfill Cu Yds. $ is 5,556 $ 720,000 $ 83,333 Street Widening/Curb Sq. Ft. $ 5 7,500 $ 37,500 Tunnel Systems Drainage L S $ 300,000 1 $ 300,000 Pump Station L S $ 150,000 1 HVAC L S $ 1.500.000 1 $ 150,000 Fire Protection L S $ 1 000,000 1 $ 1,500,000 Lighting $ 1,000,000 L S. $ 1:000,000 1 $ 1 Other Costs Signals L S $ 200,000 1 Signage $ 200,000 L S. $ 100,000 1 $ 100,000 Surface Streets & Improvements Earthwork C Y $ 1250 8,481 $ 106,013 Rough Grading S Y $ 0.80 12,722 $ 10,178 Fine Grading S Y $ 150 12,722 $ Drainage L S $ 190,000 1 19,083 Surfacing L S $ 1540,897 1 $ 190,000 Curb and Gutter L S $ 30,000 1 $ 540,897 Striping L S. $ 15,000 1 $ 30,000 Signage $ 15,000 L S $ 7,000 1 $ 7,000 Site Furnishings L S $ 481,200 1 Lighting $ 481,200 L S $ 200,000 1 3 200,000 Planting and Irrigation L S $ 80,047 1 $ 80,047 Subtotal $ 17,093,362 30% Oesign Cont'gency $ 5,128,008 10% Construction Contingency $ 1,709,336 Estimated Construction Cost* $ 23.930,706 Estimated Construction Cost does not include Sales Tax, A/E fees, Owner Project administration cost or construc management cost City of Bremerton Transportation Improvement Study 2 -Lane Ferry Exit Lane Tunnel Under First and Pacific A/E Services Calculation based on Washington State Guidelines Approach Date: 4/25/02 MACC based on 2002 Dollars $ 22,221,370 00 MACC inflated to Mid -point of Construction in 2005, (2 % /yr) $ 23,581,495 00 A/E Services Calculations: 1) Pre - Design or TS&L Study Project Management by A/E 75000 Traffic Analysis 50000 Alignment Alternatives Analysis 100000 Utility Investigation 50000 Drainage Investigation 50000 Geotechrncal Investigation 150000 Survey 100000 WSF Terminal Phasing 50000 ROW Procurement 50000 Public /Stakeholder Involvement 50000 Total Pre - Design Services: $ 725,000.00 2) EIS / NEPA / Permitting Estimate for Fee: $ 661,500 00 3) A/E Basic Design Services. Consider Tunnel as a Facility with more than average design difficulty Schedule A rate for MACC at Midpoint of Construction 7% Consider New Tunnel as an effective "Remodel Project" Increase rate to account for remodel effect and phasing 2% Fast Track Design Services 15% Basic A/E Rate through Construction Basic A/E Fee through Construction: $ 2,476,057 Total Estimated Fee for A/E Tunnel Design Services": $ 3,862,557 ' A/E services do not include City Administration costs, legal costs, Value Engineering, document reproduction and permitting application fees NEPA and SEPA Documentation frost Estimate for the Ferry Terminal Exit Tunnel and the Bremerton Waterfront Project by ESA Inc (Environmental Studies and Permit Manager) and Entranco Engineers Inc. Bremerton Ferry Tunnel EIS Prelimary Cost Estimate Labor Hours Average Cost/ Hour Total Cost TASK 1 SCOPING Issue Notice to Proceed - Obtain Existing Data 120 $90 $10,800 Establish Inter - Disciplinary Team (IDT) 40 $150 $6,000 Develop Purpose and Need 40 $110 $4,400 Agency Scoping Meeting 60 $110 $6,400 Public Scoping Open House 120 $110 $13,200 TASK 2 ALTERNATIVE ANALYSIS Traffic Analysis footnote (1) Conduct Environmental Inventory 360 $90 $32,400 Develop Conceptual Alternatives footnote (2) Conduct Altemative Screening 2 20 $110 $24,200 Obtain IDT Approval - Screening - Decision on Alternatives to Cary Forward - Public Altemabves Open House 100 $110 $11,000 TASK i PREPARE DISCIPLINE REPORTS Develop 30% Design on Alternatives to Carry Forward footnote (2) Transmit Engineering Maps / Information to Env Team - Engineering for Avoidance / Minimization footnote (2) Noise Report 450 $110 $49,500 Waterways / Water Qualrty Report 350 $90 $31,500 Wetlands Report 120 $ Fish $10,800 sh and Wildlife Report 120 $90 $10,800 Biological Assessments - ESA Compliance 225 $90 $20,250 Displacements / Relocations Report 260 $90 $23,400 Cultural Resources Report 250 $90 $22500 Socio-economic / Land Use / Environmental Justice Report 300 $90 $27,000 Visual Quality Report 275 $90 $24,750 WSDOT/ FHWA Review of Discipline Reports Revisions to Discipline Reports 220 $110 $24,200 WSDOT / FHWA Approval of Discipline Reports TASK 4 PREPARE ENVIRONMENTAL IMPACT STATEMENT Prepare Predraft EIS 400 $90 $36,000 WSDOT / FHWA Review of Predraft EIS - Revisions to provide draft EIS 180 $90 $16,200 WSDOT / FHWA Review of draft EIS - Revisions to provide EIS for public review 120 $90 $10,800 WSDOT / FHWA Approval of EIS for circulation - EIS Public Hearing 120 $110 $13,200 Public Review of EIS Consolidate / Review Public Comment/ Response Plan 80 $110 $8,800 WSDOT / FHWA Approval of EIS Comment Response Plan - Prepare Responses to Comments 120 $110 $13,200 WSDOT / FHWA Review Responses - FHWA Issue Record of Decision (ROD) - TASK 5 PROJECT MANAGEMENT / COORDINATION ESA Project Management and Coordination 700 $100 ,000 Entranco Project Management 700 $150 $ $70$70 Total Labor $626,500 Expenses $35,000 Total Cost $661,500 � t r Doc °16-01 12:3Baa NC HM UKAZ; P -61 I P 01/04 F -133 "ft. DWreeer, WA&*.GW* 2467 RAMM Mcu?s Qrggq 9Laxra BUT WASr04T{SN, DO X51r -3709 _^� A ;W Pwar+t (202) 2285910 PHOR C cm) 80: Ilttp: Awm house.gmichckv Sur ire GOMMfTTi L' vw of t4P ate t t�� S00Paor�ca APPROPRIATIONS PR� � 4 3UDCOMMIT7EE5 312 E 5th S I NTERIOR igvi .SP I1f �P� RAMW4 PoaraMct�es WA DEMQCRAr ,C Mua.ut DEFENSE P HCNE - (360) 452 MrUTA CONSTRUCTION December 16, 2002 RECYCLED F The Hon. Cary Bozeman Mayor City ofBremerrron 239 4th St Bremerton, WA 98337 -1812 Dear Mayor Bozeman: I am writing to update you on the current state of fandding for the tunnel project in downtown Bremerton. In the FY 2003 Senate Transportation Appropriations bill, S. 2808, there is a $3 million earmark for the Bremerron Ferry Exit Tunnel. The earmark is listed on page 164 of the Report accompanying S. 2088 under Section 330 in Title III — General Provisions_ I have enclosed copies of the pertinent pages. There was no similar provision in the House Transportation Appropriations bill. Congress is expected to complete work on the FY 2003 Appropriations bills, including Transportation, in January 2003. I am confident that this earma will be contained in the final version of the Transportation Appropriations bill, although at this time that prediction cannot be made with absolute certainty. I have been working with Senator Patty Murray —currently the Chairwoman of the Senate Transportation Appropriations Subcommittee — on this project and we are continuing our effort to snake sure that this project is funded in the final FY 2003 Transportation Appropriations bill. I look forward to our continued work on this important project. Sincerely, NOPCM DICKS Member of Congress F Pec -16 -01 IZ 38ps From— T -611 P 01/04 F -133 h Calendar No. 522 107TH CoN?PMS l NATE i RMRT 2d Session J ` 107 -224 DEPARTMENT OF TRANSPORTATION AND RELATED AGENCIES APPROPRIATIONS BILL, 2003 JULY 26, 2002— Ordarcd to be punted Mrs MURRAY, from the Committee on Appropriations, submitted the following REPORT [To a=Mpany 8. 28081 The C on Appro riatiams reports the bill (S_ 2808) mak- ing appropriations for the epartaisnt of Transportation and re- lated agencies for the fiscal year ending SeptemBer 30, 2003, and for other purposes, reports favorably thereon and recommends that the bill do pass. Amounts of new budget (obligational) authority for fiscal year 2003 Amount of bill as reported to Senate .... ............... $22,251,162,000 Amount of budget estimates, 2003 ................... .... 20,759,680,000 Fiscal year 2002 enacted ..... ............................... 18,900,670,000 81-066 *(Star Prow 1 p ®c -16 —O2 IZ :3B� From— T -611 P 03/04 F -133 TITLE III -- GENERAL PROVISIONS The Committee concurs with the general provisions that apply to the Department of Transportation and related agencies as proposed in the budget, with some changes, deletions, and additions. These are noted below: SEC 304. Modifies a requested provision to prohibit the use of fide for the salaries and expenses to no more than 100 political and presidential appointees to the Department of Transportation. SEC. 316. Modifies a provision regarding the funding of adminis- trative 8t%enses for the Federal Motor Carrier Safety Administra- tion and the Federal Highway A mim stratlon. SEC. 318. Modifies a proviaion regarding funds made available to Alaska or Hawaii for ferry boats, ferry teruunals and ferry pas- senger service_ SEC- 320 Includes a provision exemp a general aviation air- port anth more than 300,000 annual operations from having to ac- cept scheduled passenger service provided that airport meets spe- cific conditions. SEC. 322. Includes a provision periziAting funds from Public Law 106 - 69 and Public Law 106 - 346 for the Wilmington. Delaware downtown corridor project shall be available for the W Delaware commuter rail improvements SEC. 324. Includes a provision transferring the operation and maintenance of the instrument landing system at the Walnut Ridge Regional Airport, Arkansas to the Federal Aviation Admnnis. tratzon. SEC- 325. Includes a provision transferring the operation and maintenance of the air t cor_trol tower at W G a t eway Airport, Arizona to the Federal Aviation AdministratiozL SEC_ 327 Includes a provision regarding a highway in Alaska - SEC. 329. Includes a provision which modifies section 1211(1) of Public Law 105-178 to define the Alameda Corridor East and Southwest Passage, California high priority corridor. S EC. 330 - Provides 5160,000,000 to the Secretary of Transpor. tation to make grants for surface transportation projects The Com- mittee's recommendation represents a $16,000,000 increase over the amount that was appropriated in fiscal year 2002 Funds pro- vided for this program for fiscal year 2003 shall be available for the following activities. Ptk^Y Amowar Aberdeen, Sr) to Genesso ND Rul Repair Project $650,000 Adrlaa's Landing Urban Dt velopineat Roadway ReatiCament Project, Hartford, CT .... ---- -- --- - 5,000,000 Arkwnght Connector, Spartanburg 3C -- 1,200,000 Aroostook County North -South Highwaya. 51000,000 Basehnc Roud, Isabella, Nottawa, Deerfield, Union, MI ... 1,000,000 Bowling Green Riverfront Project, KY _ -- . _ .. ......... 4,000,000 Bremerton, Ferry Exit Tunnel. WA _ $,000,000 (154) D ®c -16 -02 12.39pa From- 7-611 P 0 4 104 F -133 155 .i„ic.ou Broomsfield Wadsworth Intercha e, CO -- - 4,000,000 Caraway Road Overpass Project, Jonesboro AR ... _ _.. „ a,000.000 Cedar Ave Bus Rapid Transit Project, .14N .-_ --- - ........ ._ 3.000,000 Council Bluffs US-6 Study/Prelinunary Design, IA _ 2,000,000 David L. Lawrence Convenbon Center, Rive.fx t Park, 'hma. burgh, P.A. .. - - -- - - 1,400,000 Dubuque Southwest Arterial, IA ... - - - -- - • 3,000,000 East Clucago, Railroad the Grade �Croanng Qeparatson, IN » - „ , , 3,000,000 Elkhart Underpasa IN .. .. ._ .._ »__. ».... 4.000.000 Parmagton Highwi�y, HI ... - „._�; 11000,000 Genersl ]�Litc cell International Airport Passenger Rail Station, WI _ ... ... ... .... . . . ..... _-- - _ ........ . . _ .. - . - • 5,000,000 Rani Highway, HI _ _ _ ..... ...._..� .. 1,0001000 I-405 Corridor Tukwila to Lynnwood, WA _.- ..........__ _ 2, 00 5,000 John Wright Drive— Huntsvills. AL ...__ •------ ...... . ,. .... 6,600,000 Juneau Heliport, AK .. _. ._ _....._........._�. ».. -. 21000,000 Lenexa Prairie Star Expressway, HS . - ...._— .. .......... .. » 3.000,000 Matanuska- Susitna Borough road improvements. AK .. 5 000,000 Main, Ave. Bridge & Pede=ian/Bicycle Amenities. Fargo ND 3,000,000 Martin Luther King, Jr Parkway, Den Momes. TA_ -- -_ . «... , �; 5,000.000 Missouri River Trail, ND 2,000,000 Montpelier Downtown Redevelopment Protect, VT ~ - 2,500.000 Old Donunron University Maglev Project, Norfolk. VA .......„ . 2,000.000 Olympic Discovery Vail, WA »_ .-- ._._...... ... -_ 1,000,000 Phalen Blvd. Pmect. St. Paul, MN� ».. ........._....__ ». ». ... ,,.... 5,000,000 Aerre Rail Bypass, SD 6.000,000 Portland, Safety Eahanament. ML . .. . .............. ». _�_ 1,000,000 Route la Truck Bypass Project, Huron, SD ._... __ .._ »_..... , .. 2,260,000 Saddle Road improvements, HI ....... ...... ........... -..,.. ,„.- -- 4.000.000 South & East Beltway System Conatructron, NE ....... ___ —.. „ . 5,000,000 SR 67/605 in Saucier, US _ ». » .. ..........._ _. ----- ._ _....... , 6,000,000 SR- 104/Hood Canal Bridge East Half Replacement, WA 2,000,000 SR.-99 /Alaskan Way Viaduct & Seattle Seawall Rcplutement, WA_._ ... _ .. ..... ». - -- - - »........... _... . - 2.500,000 St. Louis Major Arterial Road Improvement/R.eaovatma, MO 4,000 000 Trunk Highway 610/10, Twin Cities, MN ... .......... _... .____ ».. 3,000,000 Tucson Railroad Grade Crossing Project. AZ ------ .. ..._ 1,500.000 Tuscaloosa Downtown Revitalization Project, AL .__ _. »»»». __ 5,000,000 Umatilla Interinodal Facility. OR .. .. . . ... ......_ ..... _ - _ 3,800,000 US-14 E!rpansion and Impasise_me_ots, hilt ..... _.. ».•• . •. 2,000,000 US-81 & Highway 30 Arterial Improvements, Columbus, NE ���__„ 2.500,000 U3-93, Westsrdc Mispell Bypas. Project, 34T - __ .. ... ......... . _ 2.500.000 US-95. Worley to Xca, stage 2, ID .............. _. __ ._ ._ .. 7,000,000 WSU Composite Applications for Ferries, WA __ ........ .... - _ 1,000,000 WV Route 9, Jefferson and Berkeley Counties, WV __ - - - -- .. , „ 10,000,000 SEC. 331. Includes a provision direc ing the Secretary of Trans- portation to approve the use of national highway system and sur- face transportation funds for construction of noise barriers in Geor- gia. SEC. 332. MoMes a provision from the fiscal year 2000 appro- priations act which prolubits the use of fends in this Act unless the Secretary of Transportation notifies the House and Senate Commit- tees on Appropriations not less than 3 full business days before any discretionary grant award is made under section 3 of Public Law 107 -178 as amended, and before any award totaling $500,000 or more is announced by the Department or its modal administra- tions The administration proposed deleting this provision. SEC. 333 Includes a provision naming buildings at the William J Hughes Technical Center as the "Frank R. I.autenberg Aviation Secunty Complex." Mayor Cary Bozeman rbolelon0d br 239 Atli Street' July 28, 2003 i)rernenon, WA 9 Ms Kathleen Davis, Director WSDOT Highways and Local Programs P O Box 47390 Olympia, WA 98504 -7390 RE Downtown Pedestrian /BTC Access Improvements, Request For Approval of Ferry Toll Credits to Match Federal Funding Dear Ms. Davis The Downtown Pedestrian /Bremerton Transportation Center (BTC) Access Improvements are needed to improve ingress and egress from the BTC and relieve the congestion to the City of Bremerton's urban core environment The need exists currently,- however, the City revitalization and economic development efforts will further exacerbate the traffic , conflicts further highlighting the need to separate the ferry traffic from the urban core. ' The plan to resolve these conflicts includes constructing a ferry traffic egress tunnel to eliminate the significant vehicle /pedestrian conflicts that occur when a ferry unloads vehicles onto Bremerton's street system. Congress has supported the City's vision with approximate) million to date, and we are confident that the remaining $ 2113 million will also be provided, either all in their next budget cycle, or split between the next two. The federal funding summary is shown in the table below Federal/ Soft Match Federal Non - Federal Requested Section of Law or Funds Match from State Federal Pro ram A1 ro riations Act Available Re uirement Toll Credit TEA -21 High Section 1602, TEA - Priont Funds 21 Authorization Act $4.700,000 80/20 Section 330, $1,175,000 Earmark 2003 Transportation A ro riations $1,490,250 100/0 Anticipated 0 Earmark or Unknown SAFETEA High Anticipate Priorit Funds Anticipated Fundin $21,809,750 80/20 $5,452,438 Total $28,000,000 $6,627,438 ® Page 2 July 28, 2003 In addition, the City is partnering with Kitsap Transit to incorporate the Phase C improvements to the BTC to address operational needs of WSF Although these Phase C improvements are funded separately through a FTA grant, the projects are integrally related and will be planned, designed and constructed cooperatively. The ferry traffic egress tunnel will be under State Route 304 and carry SR 304 outbound traffic. The design of the improvements is being coordinated with WSDOT through your Olympic Region Local Programs office, and with the federal government through the FHWA and the FTA Although the project improves both the state highway and Washington State Ferries facilities, and directly benefits both highway and ferry traffic, the federal funds shown are sufficient to meet the current cost estimate and there has been no request for direct WSDOT financial participation The City needs your assistance, however, to meet the local match requirements for the $4 7 million funding already in hand, as well as for the remaining $218 million that is coming. The City is requesting that WSDOT support the project by approving the use of $6 63 million in Ferry Toll Credits to serve as the required local match for the funds being Congress Your doing so will boost the City's economic development, make the tate highway safer for both people and vehicles, help the ferries operate more e schedule, and make being a pedestrian in Bremerton pleasant again. ffectively and unload on If you have questions, or need additional information regarding this request, please contact me or Gene Sampley, Director of Public Works & Utilities Thank you for your consideration of this request; we look forward to your favorable reply. Sincerely, l Cary Bozeman Mayor, City of Bremerton cc W Eugene Sampley, Director of Public Works & Utilities Department, City of Bremerton Gary Sexton, Director of Economic Development, City of Bremerton i F � AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: PSA with kpff. FOR AGENDA OF: February 19, 2003 CONSULTING ENGINEERS for the ORIGINATING DEPT: Public Works & Utllitl �,/ DOWNTOWN PEDESTRIAN/BTC ORIGINATOR: W. Eugene Sampley, Director7z,r� ACCESS IMPROVEMENT DATE SUBMITTED: February 6, 2003 2. CLEARANC (Comment on back if-r C =ssar4 ) 3. EXFIIBITS: 1. Professional Services Agreement C DtrCCftx - e 4 nn 2Muc.12evelonment dt� ttomey Dir . r inance , Cou 1 al & Budget Committee Coun it Operations Committee ENDORSE T TION [ j APPROVED BY CO C ID MAYOR � TTAL: X COUNCIL PRESIDEN 4. SUMMARY AND REQUIREMENT FOR COUNCIL ACTION Federal transportation funds have been earmarked for a project to improve both commuter traffic with the Bremerton Transportation Center (BTC) and pedestrian access and safety within downtown Bremerton The City of Bremerton has been identified as the lead agency for this project. To meet City, State and Federal environmental review requirements a screening analysis is needed to identify a preferred alternative prior to completion of the environmental permitting process Through a formal consultant selection process kpff Consulting Engineers was selected to perform this screening analysts It is recommended the City Council approve a Professional Service Agreement with kpff Consulting Engineers to perform the screening analysis for the Downtown Pedestnan/BTC Access Improvement Project in the amount of $99,731.00 S. RECOMMENDATION• The City Council approve the Professional Services Agreement with kpff Consulting Engineers to perform the screening analysis for the Downtown Pedestrian/BTC Access Improvement in the amount of $99,731 00 and authorize the Mayor to execute the same 9. RESPONSIBLE OFFICIAL: Director Pub Wks & Util ENFORCEMENT OFFICIAL: Director Economic Devl EXPIRATION DATE: REVIEW DATE: 10. NOTWE OF ACTION PULLED [ j TABLED [ ] APPROVED [ ] DISAPPROVED [ I AMENDED ( ] COUNCIL DIRECTIVE: 1 6 (OVER) 11. AGENDA BILL NO.: 03 oa ` ) 1c, DATE SUBMITTED Jub 15, 2003 AGENDA BILL BILL CI3 Y OF BREMERTON CITY COUNCIL 8C Bag a aaaaaa aeaaawaaaaaaaasaauaaaaa w a mamas aa News aaoaaa mum aaaoaa MORE aasaaau aai SUBJECT: Professional Services Committee Meeting Date July 22, 2003 Agreement - Design of Downtown COUNCIL MEETING Date July 30, 2003 Pedestnan/BTC Access Improvements Department PW &U --- Presenter Gene Sam plev Phone 5315 SUMMARY: As a consequence ofBremerton's Downtown economic development efforts, the City needs to reroute exiting ferry traffic through its downtown core and has secured federal funding for the design of the Downtown Pedestnan/BTC Access Improvements Exeltech Consulting Inc, has been selected from qualified engineering firms to provide engineering and environmental consulting services for this project and a professional services agreement (PSA) has been negotiated for the required services for Design of Downtown Pedestrian/BTC Access Improvements in the amount of $3,885,804 with a Management Reserve of $39,888 for a total authorized amount of $3,925,692 00 It is recommended City Council approve execution of the attached PSA ATTACHMENTS: (1) Project Summary (2) Professional Services Agreement FISCAL ]IMPACTS (Include Budgeted Amount) This project is included in the 2003 amended budget APPROVALS: DEPARTMENT DIRECTOR CITY ATTORNEY - _ ''- ECON DEV DIRECTOR FINANCE DIRECTOR MAYOR ' ti FISCAL/BUDGET OPERATIONS S SesS r CONSENT AGENDA ❑ COUNCIL PRESIDENT 2 : CG"�!:� RECOMMENDED MOTION: I move that City Council approve the Professional Services Agreement with Exeltech Consulting Inc for Design of Downtown PedestrianBTC Access Improvements for a total authorized amount of $3,925,692 00 and authorize the Mayor to finalize and execute the same J- � 1 DATE SUBMITTED March 10 AGENDA RILL BILL # - CITY OF 13REMERTON rarrrsrarrsorsrarrrrarrrararrraarersra CITY COUNC am ar...rrr ,MEN .aa.aa..r.r. SUBJECT: Local Agency Standard Committee Meeting Date March 16, 2004 Consultant Agreement for the Downtown COUNCIL MEETING Dare Pedestrian/BTC Access Improvement Project Department 24, D004 ePartment Economic Dev_ Presenter Gary Sexton Phone 5282 SUMMARY: The City requires project management assistance for the Downtown Pedestrian/gTC Access Improvement Project Retaining the services of W Eugene Sampley dba Sampley Consulting to manage the project will provide the expertise necessary to maintain project continuity, schedule A Local Agency Standard Consultant Agreement for federally funded projects has en d negotiated with Sampley Consulting for the Downtown Pedestrian/BTC Access Improvement Project for a total authorized amount not to exceed $50,000 It is recommended that City Council attached Local Agency Standard Consultant Agreement with Sampley Consulting. approve the ATTACHMENTS: Local Agency Standard Consultant Agreement with Sampley Consulting for the Downtown Pedestrian/BTC Access Improvement Project MCAL M PACTS (include B'Ydgeted Amouut), n0-3-e WTvices are rei tom federal funds provided in the capital project budget. No local match is required for this contract. APPROVALS: DEPARTMENT DIRECTOR. CITY ATTORNEY: MAYOR: FISCAL/BUDGET- OPERATIONS. ', -- -� COUNCIL PRESIDENT RECOMMENDED MOTION: City Council approves the Local Agency Standard Consultant Agreement with Sampley Consulting for the Downtown Pedestrian/BTC Access Improvment in the amount not to exceed $50,000 and authorize the Mayor to finalize and execute he same Project AGENDA STATUS: Consem New Busaness Old Buses COUNCIL ACTION ❑ Approve Deny (l Pos tpone �"' std ❑ No Action Resolution Public Heann 1nf�rmahan AGREE NT DC -00732 This AGREEMENT, made and entered into this sr 2002, by and between the STATE OF WASHINGTON, Departme ent of a acting b and through the Secretary of Transportation, hereinafter called the "STATE", and the City of Bremerton, 3027 Olympus Drive, Bremerton, Washington 98 310 -4799, acting through the Mayor, hereinafter called the "CITY" WHEREAS, the CITY has a project on SR 304 entitled Transportation Improvement Project Stage 1B- Gateway, a portion of which is on a limited access facility within the CITY Limits, hereinafter referred to as the "Facility ", and WHEREAS, by virtue of RCW 47.52.090, the STATE has full Jurisdiction, responsibility, and control to and over the Facility, and WHEREAS, the CITY wishes to assume maintenance responsibility for items on the STATE's Facility. NOW THEREFORE, by virtue of RCW 47 28 140 and in consideration of the terns, conditions, covenants, and performances contained herein, or attached and incorporated and made part hereof, IT IS MUTUALLY AGREED AS FOLLOWS- I GENERAL 1.0 The CITY agrees to assume maintenance responsibility for all items identified as CITY responsibility in Exhibit "A ", attached hereto and b AGREE Y reference made a part of this ~NT All maintenance by the CITY shall occur at no cost to the STATE, with the exception of maintenance of the limited access fence, which shall be maintained by the CITY at STATE expense The STATE agrees to assume maintenance responsibility, including cost to maintain, for all items identified as STATE responsibility in Exhibit "A" II PAYMENT 20 The STATE, in consideration of the faithful erfo by the CITY, agrees to reimburse the CITY for the actual directnand related i to ct done incurred in the maintenance of the limited access fence These rect costs payments are not to be more 9 frequent than one (1) per month 21 Reimbursement to the CITY for costs associated with signal maintenance will be provided for under separate agreement GM -01326 III UTILITIES 30 The STATE shall be the permitting authority for all future installations of utility facilities, other than CITY utility installations The CITY shall be the permitting authority for all CITY utility installations The CITY agrees to provide to the STATE copies of all existing utility installations within the boundaries of this limited access Facility The CITY also agrees to provide to the STATE copies of as -built plans of all future CITY utility installations located within this limited access Facility 1V RIGHT OF ENTRY 40 The STATE hereby grants and conveys to the CITY the right of entry upon all land which the STATE has interest, within or adjacent to the right of way to the highway, for the purpose of maintaining the aforementioned items or for the construction of future CITY utilities on the STATE's Facility V LEGAL RELATIONS 50 Each of the parties shall protect, defend, indemnify, and save harmless the other party, its officers, officials, employees, and agents, while acting within the scope of their employment as such, from any and all costs, claims, judginent, and /or awards of damages, arising out of, or in any way resulting from, each of the party's negligent acts or omissions. No party will be required to indemnify, defend, or save harmless the other party if the claim, suit, or action for injuries, death, or damages is caused by the sole negligence of the party Where such claims, suits, or actions result from concurrent negligence of the parties, the indemnity provisions provided herein shall be valid and enforceable only to the extent of the party's own negligence Each of the parties agrees that its obligations under this subparagraph extend to any claim, demand, and/or cause of action brought b agents For this purpose, each of the parties, by mutual t negotiat i tiion he eb waives, employees or to each of the other party only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 RCW In the event that any of the parties or combination of the parties incurs anyjudgment, award, and/or cost ansmg therefrom, including attorneys' fees, to enforce the provisions of this Section, all such fees, expenses, and costs shall be recoverable from the responsible party or combination of the parties to the extent of that party's /those parties' culpability 51 In the event that any party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the parties hereto agree that any such action or proceedings shall be brought in a court of competent jurisdiction situated in Thurston County, Washington. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the day and year first above written CITY OF BREMERTON STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION B � y By Mayor Jerald R. alter Asst. Region Administrator for Operations Date. ,p� �� Date* l / D7/ APPROVED AS TO FORM By, City ttorney Date L l,�_ i DC -00732 Exhibit "A" City /, Maintenance Responsi . b i iities Maintenance Item Responsible Agency Roadway Surface State Curbs State Directional Signs/Route Markers State Signals (Navy Yard Rd. and Farragut St) State Stability of Cut & Fill Slopes City Sidewalks City Stone Sewers City Snow Plowing City Sanding & De -icing City Snow Removal City Sand Removal City Channelization City C1`08 swalk!3 ( Striping City Parking Signs City Regulatory Signs City Stop Signs (Intersecting Streets) City Illummation (Including Operational Service Billings) City Street Cleaning City Street Sweeping City Landscaping/Vegetation City Imgation City Noxious Weeds City R/W Encroachments City R/W Cleanup City Limited Access Fence City 1 j Washington State Department of Transportation regime Loca� Agency A g Agency City of Bremerton CFDA No. 20 205 [(Catalog of Federal Domestic Assistance) Address 3027 Olympus Dnve Project No H — $ (;!)Zq Bremerton, WA 98310 Agreement No 1 For OSC WSDOT Use Only The Local Agency having complied, or hereby agreeing to comply, with the terms and conditions set forth in (1) Title 23, U S Code Highways, (2) the regulations issue pursuant thereto, (3) Office of Management and Budget Circulars A -102, A -87 and A -133, (4) the policies and procedures promulgated by the Washington State Department of Transportation, and (5) the federal aid project agreement entered into between the State and Federal Government, relative to the above project, the Washington State Department of Transportation will authorize the Local Agency to proceed on the project by a separate notification Federal funds which are to be obligated for the project may not exceed the amount shown herein on line r, column 3, without written authority by the State, subject to the approval of the Federal Highway Administration All project costs not reimbursed by the Federal Government shall be the responsibility of the Local Agency Project Description Name Downtown Pedestnan/BTC Access Improvement Length 0 53 miles Termini Warren Ave & Burwell Street Intersection to B Ferr Te rminal _ Description of Work The project consists of improvements for pedestrian and vehicular access, within the downtown Bremerton core, to the Bremerton Transportation Center (BTC) at the ferry terminal The project includes a potential ferry exit tunnel, roadway reconstruction and realignment, transit enhancements,channelization, signalization, sidewalk and streetscape improvements, illumination, landscaping and drainage improvements Estimate of Funding Type of Work (A) _ ,. M Estimated Total Estimated Agency 43 � Protect Funds 9 cY Estimated PE a Agency 500,000 00 Funds Federal Funds 80 % b Other Consultants 3,100,000 00 100,000 00 400,000 00 Federal Aid c Other 620,000 00 2,480,000 00 d State 150 000 00 Participation 30,000 00 120,000 00 Ratio for PE a Total PE Cost Estimate a +b +c +d 3,750,000.00 750,000.00 Right of Way f Agency 3,000,000.00 Other Federal Aid h Other Participation i State Ratio for RW Total R/W Cost Estimate f+ +h +i Construction k Contract I Other M Other n Other % o Agenc Federal Aid Participation State Ratio for CN rt Total CN Cost Estimate k +l +m +n +o+ r Total Protect Cost Estimate (e +) +q) 3,750,000.00 750 000.00 3,000,000.00 Agency Official Washington State Department of Transportation By By Title _Cary Brizernan istant Secretary for Highways and Local Programs � Mayor, City of )ate Executed Bremerton APR 1 4 2003 �� Construction Method of Financirig (Check Method Selected) State Ad and Award ❑ Method A - Advance Payment - Agency Share of total construction cost (based on contract award) ❑ Method B - Withhold from gas tax the Agency's share of total construction cost (line 4, column 2) In the amount of $ at $ per month for months Local Force or Local Ad and Award ® Method C - Agency cost Incurred with partial reimbursement The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and procedures, and as condition to payment of the federal funds obligated, it accepts and will comply with the applicable provisions set fora below Adopted by official action on NA , Resolution /Ordinance No Provisions Scope of Work 1 Preliminary engineering The Agency shall provide ail the work, labor, materials, and services necessary 2 Right of way acquisition to perform the project which is described and set forth in detail in the "Project 3 Project const: uct.on Description" and 'Type of Work." When the State acts for and on behalf of the Agency, the State shall be deemed In the event that right of way acquisition, or actual construction of the road, for an a When th the t A gency and shall perform the services described and inducted a which preliminary engineering is undertaken is not started by the closing of the ten g g y fiscal year following the fiscal year m which the agreement is executed, the Agent `Type of Work" on the face of this agreement, in accordance with plans and specifications as proposed by the Agency and approved by the State and the will repay to the State the sum or sums of federal funds paid to the Agency under t Federal Highway Administration terns of this agreement (see Section DQ When the State acts for the Agency but is not subject to the right of control by The Agency agrees that all stages of construction necessary to provide the initial the Agency, the State shall have the right to perform the work subject to the planned complete facility within the limits of this project will conform to at least th ordinary procedures of the State and Federal Highway Administration nrim mium valu approved statewide design standards applicable to this clan t �8!h s h a&tt"h'at n� =;pia li €taimed wtihout Jt.&,t ad It 1�ioyatlon of Authority prart�iy�itz� The the adm tale i t w i l lin g this ful t res ponsibilities Agency to the Federal Government by The Agency agrees that on federal aid highway construction projects, the current project The agrees that the State shall have the federal aid regulations which apply to liquidated damages relative to the basis of full authority to carry out this administration The State shall review, process, and federal participation in the project cost shall be applicable in the event the contracts approve documents required for federal aid reimbursement in accordance with fails to complete the contract within the contract time federal requirements If the State advertises and awards the contract, the State will further act for the Agency in all matters concerning the project as requested V1 Payment and Partial Reimbursement by the Agency If the Local Agency advertises and awards the project, the State The total cost of the project, including all review and engineering costs and shall review the work to ensure conformity with the approved plans and other expenses of the State, is to be paid by the Agency and by the Federal specifications Government Federal funding shall be in accordance with the Transportation Ill. Project Administration Equity Act for the 21st Century (TEA 21), as amended, and Office of Management and Budget circulars A -102, A -87 and A -133 The State shall not Certain types of work and services shall be provided by the State on this bo ultim responsible responsible for any of the costs of the project. The Agency shall be project ect as requested b the Agency and described in the Type of Work above In Y for all costs associated with the project which are not addition, the State will furnish qualified personnel for the supervision and reimbursed by the Federal Government Nothing in this agreement shall be inspection of the work in progress On Local Agency advertised and awarded construed as a promise by the State as to the amount or nature of federal projects, the supervision and inspection shall be limited to ensuring all work is in participation in this project conformance with approved plans, specifications, and federal aid requirements The Agency shallbill the state for federal aid project costs incurred in conformity The salary of such engineer or other supervisor and all other salaries and costs With applicable federal and state laws The agency shall mimimize the time elapsed incurred by State forces upon the project will be considered a cost thereof All between receipt of federal aid funds and subsequent payment of Incurred costs costs related to this project incurred by employees of the State in the customary Expenditures by the Local Agency for maintenance, general administration, manner on highway payrolls and vouchers shall be charged as costs of the supervision, and other overhead shall not be eligible for federal participation unless project an indirect cost plan has been approved by WSDOT IV Availability of Records The State will pay for State incurred costs on the project Following All project records in support of all costs incurred and actual expenditures payment, the State shall bill the Federal Govemment for reimbursement of kept by the Agency are to be maintained in accordance with local government those costs eligible for federal participation to the extent that such costs are accounting procedures prescribed by the Washington State Auditor's Office, attributable and properly allocable to this project The State shall bill the the U S Department of Transportation, and the Washington State Department Agency for that portion of State costs which were not reimbursed by the of Transportation The records shall be open to inspection by the State and Federal Government (see Section DQ Federal Government at all reasonable times and shall be retained and made available for such inspection for a period of not less than three years from the 1_ Project Construction Costs final payment of any federal aid funds to the Agency Copies of said records Project construction financing will be accomplished by one of the three shall be furnished to the State and /or Federal Government upon request methods as indicated in this agreement V Compliance with Provisions The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing by the State for each classification The classifications of work for projects are Method A — The Agency will place with the Staic, within (20) days after the X. Traffic Control, Signing, Marking, and Roadway execution of the construction contract, an advance in the amount of the Agency's share of the total construction cost based on the contract award The Maintenance State will notify the Agency of the exact amount to be deposited with the State The Agency will not permit any changes to be made in the provisions for parks The State will pay all costs incurred under the contract upon presentation of regulations and traffic control on this project without prior approval of the State a progress billings from the contractor Following such payments, the State will Federal Highway Administration The Agency will not install or permit to be submit a billing to the Federal Government for the federal aid participation installed any signs, signals, or markings not in conformance with the standards share of the cost When the project is substantially completed and final actual approved by the Federal Highway Administration and MUTCD The Agency wil costs of the project can be determined, the State will present the Agency with a at its own expense, maintain the improvement covered by this agreement final billing showing the amount due the State or the amount due the Agency This billing will be cleared by either a payment from the Agency to the State or XI. Indemn by a refund from the State to the Agency The Agency shall hold the Federal Government and the State harmless from an Method B — The Agency's share of the total construction cost as shown on shall process and defend at its own expense all claims, demands, or suits, whether the face of this agreement shall be withheld from its monthly fuel tax law or equity brought against the Agency, State, or Federal Government, arising allotments The face m this agreement establishes the months u which the from the Agency's execution, performance, or failure to perform any of the al lotmen t s shall take place and the exact amount to be withheld each month provisions of this agreement, or of any other agreement or contract connected Witt The extent withholding will be confirmed o letter from the State h the time this agreement, or arising by reason of the participation of the State or Federal of contract award Upon receipt of progress billings from the contractor, the Government in the project, PROVIDED, nothing herein shall require the Agency i State will submit such billings to the Federal Government for payment of its reimburse the State or the Federal Government for damages arising out of bodily participating portion of such billings injury to persons or damage to property caused by or resulting from the sole negligence ence of the Federal Government or the State Method C — The Agency may submit vouchers to the State in the format No liability shall attach to the State or Federal Government except as expressly prescribed by the State, in duplicate, not more than once per month for those provided herein costs eligible for Federal partic to the extent that such costs are direLtly Xli. Nondiscrimination Provision attributable and properly allocable to this project Expenditures by the Local The Agency Agency for maintenance, general administration, supervision, and other g cY shall not discriminate on the basis a race, color, national origin, or overhead shall not be eligible for Federal participation unless claimed under a sex in the award and performance of any USDOT or contract and/or previously approved indirect cost plan agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26 The Agency shall take all necessary and reasonable steps under 49 The State shall reimburse the Agency for the Federal share of eligible project CFR Part 26 to ensure nondiscrimination in the award and administration of costs up to the amount shown on the face of this agreement At the time of USDOT- assisted contracts and agreements The WSDOT's DBE program, as audit, the Agency will provide documentation of all costs incurred on the required by 49 CFR Part 26 and as approved by USDOT, is incorporated by project reference in this agreement Implementation of this program is a legal t3 obligation Th ate bha1l ball thug iivY fur lilt ttss ;itr t,nd ]r rile htat rurstiroi tto and failure to carry out its terms shall be treated as a violation of this agreement. ills rr �L• rid-Saute also bill di&A iui€s r { lsrin rititiflt�tioii tftilia Aegneq of its ti, tarty iiUt 'ft§alsprtitietY�irogtain,the g Y .w tli�r feLercat fun t +d ptu 1 t6ti[ rnity tri,polL, Na irr tttiii� litvirtietf fiir�under itt P #ranrl ina , the State to the Agency for project costs which are subsequently determined to appropriate cases, refer the matter for enforcement under 18 U S C 1001 and /or the be ineligible for federal participation (see Section DQ program Fraud Civil Remedies Act of 1986 (31 U S C 3801 et seq ) VII Audit of Federal Consultant Contracts The Agency, if services of a consultant are required, shall be responsible for The Agency hereby agrees that it will incorporate or cause to be incorporated into audit of the consultant's records to determine eligible federal aid costs on the any contract for construction work, or modification thereof, as defined in the rules project The report of said audit shall be in the Agency's files and made and regulations of the Secretary of Labor in 41 CFR Chapter 60, which is paid for in available to the State and the Federal Government whole or in part with funds obtained from the Federal Govemment or borrowed on An audit shall be conducted by the WSDOT Internal Audit Office in the credit of the Federal Government pursuant to a grant, contract, loan, insurance, accordance with generally accepted govemmental auditing tandards as c guarantee , i undc nsurance, or insurance, or g g uarantee, the require pursuant to any federal p g contract, loan, rogram involving such grant, issued by the United States General Accounting Office by the Comptroller d contract provisions for Federal -Aid Contracts General of the United States, WSDOT Manual M 27 - 50, Consultant Guidelines (FHWA 1273), located in Chapter 44 of the Local Agency Authorization, Selection, and Agreement Administration, memoranda of understanding between WSDOT and FHWA, and Office of Management The Agency further agrees that it will be bound by the above equal opportunity and Budget Circular A -133 clause with respect to its own employment practices when it participates in If upon audit it is found that overpayment or participation of federal pa ticipat ng is a State or Local Government, th above equal opportunity clause money in ineligible items of cost has occurred, the Agency shall reimburse is not applicable to any agency, instrumentality, or subdivision of such the State for the amount of such overpaynent or excess part.cipatign (see gc N emment which does not participate in work on or under the contract Section DQ VIII. Single Audit Act The Agency also agrees The Agency, as a subrecipient of federal funds, shall adhere to the federal (1) To assist and cooperate actively with the State in obtaining the compliance of Office of Management and Budget (OMB) Circular A -133 as well as all contractors and subcontractors with the equal opportunity clause and rules, applicable federal and state statutes and regulations A subrecipient who regulations, and relevant orders of the Secretary of Labor expends $300,000 or more in federal awards from all sources during a given fiscal year shall have a single or program - specific audit performed for that (2) To fumish the State such information as it may require for the supervision of year in accordance with the provisions of OMB Circular A -133 Upon such compliance and that it will otherwise assist the State in the discharge of its conclusion of the A -133 audit, the Agency shall be responsible for ensuring primary responsibility for securing compliance g that a copy of the report is transmitted promptly to the State (3) To refrain from entering into any contractor contract modification subject to IX Payment of Billing Executive Order 11246 of September 24, 1965, with a contractor debarred from, or The Agency agrees that if yment p a who has not demonstrated eligibility for, government contracts and federally the State's billing relative to the project t arrangement for payment (e g ,State force work, project any of assisted construction contracts pursuant to the Executive Order cancellation, overpayment, cost ineligible for federal participation, etc ) is not (4) To carry out such sanctions and penalties for violation of the equal shal of he total sum due f om the regular monthly fuel State, Federal H ighway may Administration, imposed upon contractors and subcontractors by the g y y ministration, or the Secretary of Labor pursuant to Part tax allotments to the Agency from the Motor Vehicle Fund No additional II, subpart D of the Executive Order Federal project funding will be approved until full payment is received unless o otherwise directed the Assistant Secretary for Highways and Local Programs I 1 In addition, the Agency agrees that if it fails or refuses to comply with these XV. Venue for Claims and /or Causes of Action undertakings, the State may take any or all of the following actions For the convenience of the parties to this contract, it is agreed that any claims (a) Cancel, terminate, or suspend this agreement in whole or in part, and/or causes of action which the Local Agency has against the State of Washington, growing out of this contract or the project with which it is (b) Refrain from extending any further assistance to the Agency under the concerned, shall be brought only in the Supenor Court for Thurston Coun program with respect to which the failure or refusal occurred until satisfactory ty assurance of future compliance has been received from the Agency, and XVI. Certification Regarding the Restrictions of the Use (c) Refer the case to the Department of Justice for appropriate legal proceedings of Federal Funds for Lobbying The approving authority certifies, to the best of his or her knowledge and belie XIII. Liquidated Damages that The Agency hereby agrees that the liquidated damages provisions of 23 CFR (1) No federal appropriated funds have been paid or will be paid, by or on beh of the undersigned, to any person for influencing or attempting to influence an Part 630, Subpart 305, as supplemented, relative to the amount of Federal officer or employee of any federal agency, a member of Con participation in the project cost, shall be applicable in the event the contractor gress, an officer or fails to complete the contract within the contract time Failure to include employee of Congress, or an employee of a member of Congress in connection w liquidated damages provision will not relieve the Agency from reduction of the awarding of any federal contract, the making of any federal grant, the making federal participation in accordance with this paragraph any federal loan, the entering into of any cooperative agreement, and the extensioi continuation, renewal, amendment, or modification of any federal contract, grant, XIV Termination for Public Convenience loan, or cooperative agreement. The Secretary of the Washington State Department of Transportation may (2) If any funds other than federal appropriated funds have been paid or will be terminate the contract in whole, or from time to time in part, whenever paid to any person for influencing or attempting to influence an officer or employe (1) The requisite federal funding becomes unavailable through failure of of any federal agency, a member of Congress, an officer or employee of Congress, g or an employee of a member of Congress in connection with this federal contract, appropriation or otherwise grant, loan, or cooperative agreement, the undersigned shall complete and si.brrit (2) The contractor is prevented from proceeding with the work as a direct the Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance result of an Executive Order of the President with respect to the prosecution of with its instructions war or in the interest of national defense, or an Executive Order of the (3) The undersigned shall require that the language of this certification be President or Governor of the State with respect to the preservation of energy included in the award documents for all subawards at all tiers (including subgrants resources and contracts and subcontracts under grants, subgrants, loans, and cooperative (3) The contractor is prevented from proceeding with the work by reason of agreements) which exceed $100,000, and that all such subrecipients shall certify a preliminary, special, or permanent restraining order of a court of competent and disclose accordingly junsdiction where the issuance of such order is primarily caused by the acts or This certification is a material representation of fact upon which reliance was omissions of persons or agencies other than the contractor placed when this transaction was made or entered into Submission of this rxr:rficatian as a riv equi5itp for - -ranking, or r wto this. tnr,;netion +ii np%WaI (d) The Secretary determines that such termination is fn the best interests of (ay ri�stt4r l 5�, T,itFp l l ` l I S i't# Any t s skhA fa t;t fls th; resluRd the State certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure Additional Provisions i Aug 25 04 03:27p En Peering Division 3C 1 478 -5398 p,3 AW Washingion Stage Olympic Region Headquarters Department of Transportation 5720 Capitol Boule ✓ard, Tumwater Douglas D. MacDonald P O Box 47440 Secretary of Transportation Olympia, WA 98504 7440 360 - 357 -2600 Fax 360 - 357 -2601 TTY 1 -800- 833 -6388 Ymv wsdot wa gov August 10, 2004 Mayor Cary Bozeman City of Bremerton 239 Fourth Street Bremerton, WA 98337 Re SR 304 Downtown Bremerton Pedestrian / BTC Access Improvements Letter of Understanding — LA -5522 Dear Mayor Bozeman The purpose of this Letter of Understanding is to clarify operational details in implementing Secretary Douglas B McDonald's July 13, 2004 lettei (attached) which notified the City of Bremerton of WSDOT's management responsibilities in association with the SR 304 Downtown Bremerton Pedestrian / BTC Access Improvement project More specifically this letter of understanding defines the approval authority for project design, environmental documentation, right -of -way acquisition and construction Additional considerations maybe addressed prior to initiation of a construction phase The Washington State Department of Transportation, hereinafter called the "State ", an_d the City of Bremerton, hereinafter called the "City ", in an effort to avoid any unnecessary delay in the current project schedule, concur in the following 1 The State and City have designated formal points of contact (State contact) (City contact) Neal J Campbell, P E, Local Programs Engineer Phil Williams, Director WA State Department of Transportation Department of Public Works & Utilities P O Box 47440, Olympia, WA 98504- 7440 3027 Olympus Drive 5720 Capitol Boulevard Bremerton, WA 98310 Tumwater, WA 98501 (360) 473 -5315 (360) 357 -2666 FAX (360) 473 -5018 FAX (360) 798 -2740 2 The City recognizes and accepts the State's authority to "exercise all the powers and perform all the duties necessary, convenient, or incidental to the planning, locatins. Aug 25 04 03:27p En s neering Division 3F"- 478 -5398 p•4 designing, constructin g, improving, repairing, operating, and maintaining [of] state highways" including the SR 304 Downtown Bremerton Pedestrian / BTC Access Jinprovement project And in that recognition the City accepts the State as the final approving authority for all project elements in the current and future phases of design, environmental documentation, nght -of -way acquisition and construction 3 The City and State agree that in order to avoid delays by canceling and re- establishing existing financial agreements (LA -5522) and previously executed consultant contracts, the City shall continue in the role of the project financial administrator 4 The City extends to the State, authority to direct agents of the City employed in the design, environmental documentation, or right -of -way acquisition processes, associated with this project It is the desire of the City and State to continue working cooperatively towards the completion of this project - Signature below constitutes concurrence of both parties in this Letter of Understanding City of Bremerton State of Washington Department of Transportation By B 14Z Y Cary Boze an, Randall A. Hain, P E Mayor Region Administrator Date �d" e5 Date 3 • 0 4 C Neal J Campbell, P E, Local Programs Engineer Phil Williams, City Director of Public Works & Utilities Gene Sampley, P E , City Project Manager t � s 1 2 RECEIVED FOR FILING 3 KITSAP COUNTY CLERK AUG 2 6 2004 4 DAVI1) W P - �TERSON 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 _> 11 DELL KNAUSS, Case No 04 -2- 02001 -0 Petitioner, 12 v DECLARATION OF SERVICE 13 THE CITY OF BREMERTON and CITY 14 COUNCIL OF BREMERTON, Respondents 15 16 I am the Legal Assistant for the Bremerton City Attorney's Office On the 26th day 17 of August, 2004, and in the manner indicated below, I caused a copy of the City of 18 Bremerton's Notice of Appearance, Motion for Change of Judges, Affidavit of Prejudice 19 by Roger A Lubovich in Support of City of Bremerton's Motion for Change of Judge, 20 Answer and Affirmative Defenses to Petition for Writ of Mandate, Opposition to Petition 21 for Writ of Mandate, Declaration of Randall A Hain, P E, WSDOT, Declaration of David 22 P Horton, and this Declaration of service to be served on 23 Walter M Hackett, Jr 423 Pacific Avenue, #202 24 Bremerton, WA 98337 25 [ ] By United States Mail 26 [ ] By Legal Messenger [X] By Hand Delivery [ ] By Facsimile DECLARATION OF SERVICE - 1 ROGER A LU13OVICH BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 360 -473 -2345 Fax 360 -473 -5161 l r* I 1 I declare under penalty of penury under the laws of the State of Washington that 2 the foregoing is true and correct 3 Executed at Bremerton, Washington this 26th day of August, 2004 4 n 6 Thelma Swem, Legal Assistant 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DECLARATION OF SERVICE - 2 ROGERA LUBOVICH BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 360 -473 -2345 Fax 360 -473 -5161 �r v 1 2 3 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No 04 -2- 02001 -0 Petitioner, 12 v RESPONDENTS ANSWER AND AFFIRMATIVE DEFENSES TO 13 THE CITY OF BREMERTON and CITY PETITION FOR WRIT OF 14 COUNCIL OF BREMERTON, MANDATE Respondents 15 16 ANSWER 17 Respondents, the City of Bremerton, and the Bremerton City Council Answers 18 Petitioner's Petition for Writ of Mandate, pursuant to RCW 7 16 200 as follows 19 1 Paragraphs Admitted Respondents admit the allegations contained in paragraphs I, II, III, V, VI, VII of 20 the petition 21 2 Paragraphs Denied 22 Respondents deny the allegations contained in paragraph IV of the petition 23 AFFIRMATIVE DEFENSES 1 24 The subject matter of the initiative petition is not a valid 25 2 The issue of whether the initiative should be submitted to a vote of the people is moot 26 WHEREFORE, having fully answered the Petition, Respondents pray as follows ANSWER AND AFFIRMATIVE ROGER A LUBOVICH DEFENSES-1 BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 360- 473_71d1; F,,, z4n A71 c, G e I 1 That the Petition be dismissed 2 2 That Respondents be awarded its costs and attorney's fees incurred 3 herein 4 3 For such other and further relief as the Court deems appropriate ROGER A LUBOVICH 5 Bremerton City Atto y 6 / 7 By David Orton, Assistant City Attorney 8 WSB # 27123 9 VERIFICATION OF CARY BOZEMAN 10 CARY BOZEMAN, on oath, says on behalf of the above -named plaintiff 11 1 I am the Mayor of the City of Bremerton 12 13 2 I have read this ANSWER, know its contents and believe the same to be true 14 15 DATED this X day of 2004 ' 16 17 18 GARY BOZEMAN 19 Signed and sworn to before me on the day of o 2004 b 20 Cary Bozeman 21 22 �P V • S� J 23 �!(�.��SStoN Eka�P •�.� (Printed Name) Notary Public in and for the State of Washington 24 Residing at ? KD12CnA E r16'. t N k 25 J� o U2�? `o �p� My Appointment Expires a•t_Q� 26 ANSWER AND AFFIRMATIVE ROGER A LUBOVICH DEFENSES-2 BREMERTON CITY ATTORNEY 239 4th Street, Biemerton, Washington 98337 Phone 160.473_ , )Zda P_ z9n A-,') C111 M ,j 1 RECEIVED FOR FILING KITSAP COUNTY CLERIC 2 AUG 2 6 2004 3 DAVID W PETERSON 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No. 04 -2- 02001 -0 Petitioner, 12 v CITY OF BREMERTON'S MOTIO FOR CHANGE OF JUDGES 13 THE CITY OF BREMERTON and CITY 14 COUNCIL OF BREMERTON, (Clerk's Action Required) Respondents 15 16 The City of Bremerton moves the Court for an order granting a change ofjudge 17 because the judge before whom the Petition for Writ of Mandate is set for hearing is 18 prejudiced against the City of Bremerton This motion is made pursuant to RCW 4 12 040 19 and 4 12 050 and is supported by the attached affidavit 2 0 Dated this `�5X day of August, 2004 21 ROGER A LUBOVICH 22 Bremerton City Attorney 24 Roger Lubovich WSBA # 8942 25 David P Horton, Assistant City Attorney 26 WSBA # 27123 CITY OF BREMERTON'S MOTION FOR ROGER A LU13OVICH BREMERTON CITY ATTORNEY CHANGE OF JUDGES - 1 239 4th Street, Bremerton, Washington 98337 Phone 360473 -2345 Fax 360 -473 -5161 v s , E 1 � , � coU D FAR NTV n� 3 2 A�6 2 6 LUU4 3 AVID w 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No 04 -2- 02001 -0 Petitioner, 12 v AFFIDAVIT OF PREJUDICE BY ROGER A LUBOVICH IN ' 13 THE CITY OF BREMERTON and CITY SUPPORT OF CITY OF BREMERTON'S MOTION FOR COUNCIL OF BREMERTON, 14 Respondents CHANGE OF JUDGE 15 16 STATE OF WASHINGTON) 17 ) ss COUNTY OF KITSAP ) 1s ROGER A LUBOVICH, on oath says 19 1 I am the City Attorney of the City of Bremerton 20 2 Petitioner has filed a Petition for Writ of Mandate 21 3 Judge M Karlynn Haberly, before whom the Petition for Writ of Mandate is set for 22 hearing is prejudiced against the City of Bremerton, its City Attorney or its interests, such 23 that the City of Bremerton believes that it cannot obtain a fair and impartial hearing before 24 Judge Haberly 25 26 RO ERA LUBOVICH AFFIDAVIT OF PREJUDICE BY ROGER ROGER A LUBOVICH BREMERTON CITY ATTORNEY A LUBOVICH - 1 239 4th street, Bremerton, Washington 98337 Phone 360 -473 -2345 Fax 360 -473 -5161 Y 1 .w t 1 Signed and sworn to before me on the4�da of Y , 2004 b 2 Roger A Lubovich, City Attorney of the City of Bremerton 3 4 , A 5 ���{JV V S (Pnnted Name) G � o ,tssioN Notary Public in and for the State of Washington . 0 6 q F :• Residing at 7 My Appointment Expires y ' �'27 -p1.•. 8 OF WASHING�� 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AFFIDAVIT OF PREJUDICE BY ROGER ROGER LUBOVICH A LUBOVICH - 2 BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 360 -473 -2345 Fax 360 -473 -5161 I RECEIVED FOR FILING 1 KITSAP COUNTY CLERK 2 I�UG 2 6 2004 3 DAVID w P ETE RSON 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR 9 KITSAP COUNTY, WASHINGTON 10 11 DELL KNAUSS, Case No 04 -2- 02001 -0 Petitioner, 12 V NOTICE OF APPEARANCE 13 THE CITY OF BREMERTON and CITY 14 COUNCIL OF BREMERTON, Respondents 15 TO THE CLERK OF THE ABOVE- ENTITLED COURT, and 16 TO WALTER HACKETT, Attorney for Petitioner, 17 YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE that the above - named Respondents, City of Bremerton and City Council of Bremerton, without waiving 18 objection as to improper service, venue or jurisdiction, appear in the above - entitled 19 matter by their undersigned attorney, and you are further notified that service of all 20 further pleadings, notices, documents or other papers herein, exclusive of process, may 21 be had upon said respondents, by service upon the undersigned at the address below 22 DATED this 25�-- day of August, 2004 23 ROGER A LUBOVIC Bremerton City Attorn 24 By 25 Dav Orton, ss stant City Attorney WSBA # 27123 26 239 Fourth Street Bremerton, WA 98337 NOTICE OF APPEARANCE - 1 ROGER A LUBOVICH BREMERTON CITY ATTORNEY 239 4th Street, Bremerton, Washington 98337 Phone 360473 -2345 Fax 360 -473 -5161 1 � IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KITSAP COUNTY 1 2 DELL KNAUSS, ) NO I 2 02 0 01 ( 3 ) 4 Petitioner, ) PETITION FOR WRIT OF MANDATE 5 v ) 6 THE CITY OF BREMERTON and ) RECEIVED PON FILING CITY COUNCIL OF ) KITSAP COUNTY CLERK BREMERTON, ) AUG 13 OIIQ 8 ) ')A v'U vv Hr FER • Respondents ) ON , 9 ) 10 11 NOW COMES the Petitioner herein, and pursuant to RCW 12 35 17 260 and any other pertinent statutes and respectfully show the 13 Court 14 15 I 16 The Petitioner, DELL KNAUSS, is a resident and elector of the 17 City of Bremerton, Washington 18 II 19 That the Defendant City of Bremerton in the County of Kitsap, 20 State of Washington, is a city organized under the laws of the State of 21 Waslungton 22 23 24 25 26 PETITION FOR WRIT OF MANDATE - 1 27 28 L* r 1 III I That the Bremerton City Council acts as the legislative body for 2 the said city 3 IV 4 5 That the said city has the power to enact ordinances regulating 6 any and all improvements to public streets within its corporate limits 7 and to regulate the flow of traffic 8 V 9 That on July 12, 2004, a proposed initiative for adoption of the 10 following ordinance was filed with the City of Bremerton The said 11 ordinance was as follows, 12 An ordinance of the City of Bremerton prohibiting construction 13 14 of a vehicular traffic tunnel as part of the downtown pedestnan/BTC 15 access improvements The City of Bremerton does ordain Section 1 16 The City of Bremerton shall not construct a vehicular traffic tunnel as 17 part of the downtown pedestnan/BTC access improvements project 18 VI 19 The said initiative designated 101 was certified as being signed 20 by 25% of the votes cast by all candidates for Mayor at the last general 21 election on July 23, 2004. 22 23 24 25 26 PETITION FOR WRIT OF MANDATE - 2 27 28 y VII 1 That the City Council of Bremerton has refused to adopt the 2 proposed ordinance and in addition adopted a resolution refusing to 3 place the proposed ordinance on the ballot 4 5 WHEREFORE, Petitioner prays that this Court exanme the said 6 initiative and Auditors certificate and enter a Writ of Mandate directing 7 the City of Bremerton and the City Council thereof to place the matter 8 on the ballot for the November 2, 2004, General Election 9 sp��� �' . �. 10 WALTER M HACKETT, JR Attorney for Petitioner 11 WSBA #1055 12 VERIFICATION 13 14 DELL KNAUSS, states under the pains and penalties of penury 15 under the laws of the State of Washington, that he has read the Petition 16 herein and believe the contents to be true 17 DATED I //.3 1O1 18 19 20 21 22 23 24 LAW OFFICES OF WALTER M. HACKETT, JR. 25 423 Pacific Avenue, #202 Bremerton, WA 98337 26 (360) 377 -4481 27 PETITION FOR WRIT OF MANDATE - 3 28 DATE SUBMITTED July 29, 2004 BILL AGENDA BILL CITY OF BREMERTON CITY COUNCIL ■■ aaarrarrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrarrrrrrrrrrrrrrrrrrrarrsarrrrrrrr SUBJECT: Public Hearing on Resolution Committee Meeting Date J u l y 28, 2004 No. A 13 .3 regarding the Downtown COUNCIL MEETING Date: August 4, 2004 Pedestnan/BTC Access Improvements Department- City Attorney's Office Project - Initiative Petition Presenter- Roger A. Lubovich Phone: 473 -2345 SUMMARY: Citizen's Initiative 101 was certified by the County Auditors office on July 23, 2004 This initiative petition seeks to prohibit the City from constructing a traffic tunnel as a part of the Downtown Pedestnan/BTC Access Improvements Project in downtown Bremerton The City Council has three options with regard to the initiative petition. 1) adopt the proposed ordinance as presented in the petition, 2) submit the initiative to a vote of the citizens, or 3) not submit the initiative to a vote of the citizens It is the City Attorney's recommendation that the initiative petition not be submitted to the voters for the following reasons - a The subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980), b The issue presented in the initiative petition is now moot, and c Submitting the initiative to a vote of the citizens would be confusing in that the voters may think they have an impact on the tunnel decision ATTACHMENTS: Proposed Resolution, Initiative 101 Petition, Letter of Certification FISCAL IMPACTS (Include Budgeted Amount) APPROVALS: DEPARTMENT DIRECTOR - CITY ATTORNEY 4 FINANCE DIRECTOR: r MAYOR FISCAL/BUDGET- Pre-Council 7/28/04 CONSENT AGENDA OPERATIONS: Pre-Council 7/28/04 ❑ COUNCIL PRESIDENT- T__ . _ - RECOMMENDED MOTION: I move to pass Resolution No q 3 3 electing not to submit the initiative to a vote of the citizens. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action R \LEGAMcpartmenu- CmemWity Councd\Tunnei ab doc 44 RESOLUTION NO. %133 A RESOLUTION of the City Council of the City of Bremerton, Washington, taking action not to submit to the quahfied electors of the City of Bremerton at the November 2, 2004 General Election, Initiative Petition 101 relating to construction of a vehicular traffic tunnel as part of the Downtown PedestnanBTC Access Improvements Project. WHEREAS, an Initiative Petition signed by registered voters, equal in number to at least twenty -five percent of the total votes cast for all candidates for Mayor at the last preceding City of Bremerton election, has been filed with the City Clerk as provided for in RCW 35.17.260, and WHEREAS, the Petition seeks to prohibit the City from constructing a traffic tunnel as part of the Downtown PedestnanBTC Access Improvements Project ( "Project ") WHEREAS, the City Clerk, through the Kitsap County Auditor, on July 23, 2004, verified the sufficiency of the signatures thereto, and WHEREAS, RCW 35 17 260 provides for the matter to be presented to the City Council within 20 days of certification of sufficiency of signatures for either adoption of the ordinance as proposed or to forward the initiative to election on November 2, 2004; and WHEREAS, the County Auditor requires a Resolution approved by the City Council authorizing the placement of the proposition on the November General Election, and WHEREAS, the State of Washington, in a letter from the Secretary of Transportation received by the City on July 13, 2004, notified the City that the State is assuming the Project; and WHEREAS, because the State has assumed jurisdiction of the Project, the City Council finds that the subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980), the issue presented in the initiative petition is now moot, and submitting the initiative to a vote of the citizens would be confusing in that the voters may think may think they have an impact on the tunnel decision, and WHEREAS, the City Council has three options when reviewing the initiative petition. 1) adopt the proposed ordinance, 2) submit the initiative to a vote of the citizens, or 3) decide not to submit the initiative to a vote of the citizens, and WHEREAS, because of the above -noted findings, the City Council finds that it would be inappropriate to submit the Initiative Petition to the voters; NOW THEREFORE 1 Initiative Petition 101 45 THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS. SECTION L The recitals set forth above are hereby incorporated as if set forth herein in full SECTION 2. Initiative Petition 101 shall not be placed on the November General Election. SECTION 3. Severability If any one or more sections, subsections, or sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Resolution and the same shall remain in full force and effect SECTION 4. Effective Date. This Resolution shall take effect and be in force immediately upon its passage PASSED by the City Council of the City of Bremerton, Washington this day of , 2004. DAREN NYGREN, Council President APPROVED AS TO FORM- ATTEST. ROGER A LUBOVICH, City Attorney PAULA JOHNSTON, City Clerk R %EGAL\R=1uhons\City CounciA[mhative Penhon doc 2 Initiative Petition 101 46 INITIATIVE 101 "Citizens Against The Tunnel (CATT)" Wants to Give you the RIGHT TO VOTE ON A TUNNEL INITIATIVE PETITION FOR SUBMISSION TO THE CITY COUNCIL OF BREMERTON, WASHINGTON To the City Clerk of the City of Bremerton Washington We, the undersigned registered voters of the City of Bremerton, Washington, respectfully direct that this petition and the proposed ordinance contained herein enuded 'An ordumoo prohibiting construction of a downtown —( be enacted into law and furthermore of the City Council farts to enact this ordinance ice that at be submitted to a vote of the people at a regular or special election to be held on a dare and in the manner required by the Revised Code of Washington and each of us for lumself or herself says I have personally signed this petition, T am a Legal voter of the City of Bremerton Washington my residence address is correctly stated and 1 have knowingly signed this petition only once_ Statement of Action Sought The purpose of this initiative is to prohibit the City of Bremerton from constructing a vehicular traffic tunnel as part of the Downtown Pedestrian/BTC Access Improvements project Such an initiative is authonzed by the Bremerton City Charter Section 5 and Section 36, adopting RCW 35 17 240 through RCW 35 17360 Text of Ordinance. The proposed ordinance reads as follows Ordooance _ (Inmative NI01) An ordinance of the City of Bremerton prohibiting construction of a vehicular traffic tunnel as part of the Downtown PedestnanBTC Access Improvements The City of Bremenon Does Ordain Section t The City of Bretnertom shall not construct a vehicular traffic tunnel as part of its Downtown Pedestnan/BTC Access Improvements project Warning Every person who signs this petition with any other than his or her rue name or who knowingly signs more than one of these petitions or signs a petition seeking an election when he or she is not a legal voter or signs a petition when he or she is othcrwtsc not qualified to sign or who makes herein any false statement, shall be guilty of a nusderneanor CITY OF BREMERTON INITL4TIVE TO THE PEOPLE CITY OF BREMERTON VOTERS SIGN BELOW Petitioner is Residence Address Petitioner s St tune Date Petitioner's Pnnted Name Must reside within City limits of Bremerton Cit or Town 2i Coun to I 3 -- — 2 3 4 5 6 8 9 10 _ MAIL COMPLETED PETITIONS TO CITIZENS AGAINST THE TUNNEL (CATT) PO Box 502, Bremerton, WA 98337 (360) 377 -1594 07/25/2004 15 58 PAZ 360 557 5769 BITSAP COUNTY ELECTIONS 0 002 Is Karen Flynn Kitsap County Auditor - Elections & v ote r Registration 1026 Sidney Avenue, Suite 175 • Port Ombard, Wsshm&n 98366.4678 Telephone (360) 337 -7128 • Faesunlle (360) 337 -5769 Add Ariwoola Ftancbt S*n*Rs Manages WIMk Mores-Logan Chet DepufyAuwW CERTIFICATE OF S1U'FFICIENCY I hereby certify, in accordance with RCW 35.17.260, that the Pctitlon Initiative 101 from the City of Bremerton, Washington (Citizens Against The Tunnel), was signed by at least twenty -five percent (2,060 of 8,238) of the votes cast for all candidates for mayor at the last general election at the last preceding general election. WITNESS my hand and official seal of office affixed this 23"' day of July 2004. mob,? ,a.♦• ;�� r KAREN FL = Kitsap County Auditor - Admutistrabun Accounts p 360)337 -7128 dyable Payroll Vehicle t.lesnaing Public Raeobs ( 360 337 -8645 (300( 337.7122 (360) 337 -7123 (360) 3374140 (360) 3374935 Fax. 337 -7016 4 F$ 337.7016 Fax 337464S Fax 337.1645 Poll Free From- 01811a 851.4147 • 6alnbrldue Island 842 -2081 .( Office of the City Attomey FILE Roger A Lubovich, Cfty Attomey Memorandum TU. City Council F0'Qm; Roger A Lubovic Re; Downtown Pedestri TC Access provements Project — Initiative Petition D8t8: August 2, 2004 Facts. On July 12, 2004, the City Clerk received a copy of a citizen's initiative which provides- "The City of Bremerton shall not construct a vehicular traffic tunnel as part of its Downtown Pedestnan/BTC Access Improvements protect" (emphasis added) This initiative petition in essence seeks to stop construction of a traffic tunnel as a part of the street improvements proposed for State Route 304 in downtown Bremerton The initiative was certified by the County Auditors office on July 23, 2004 as having enough signatures to submit to the voters for an election On July 13, 2004, the City received a letter from Douglas B. MacDonald, Secretary of Transportation, Washington State Department of Transportation informing the City that the State was assuming jurisdiction over the project City Council options. The City Council has three options with regard to the presented initiative petition The City Council may take action to. 1) adopt the proposed ordinance as presented in the petition, 2) submit the initiative to a vote of the citizens, or 3) not submit the initiative to a vote of the citizens. Recommendation. I recommend that the City Council vote not to submit the initiative to a vote of the citizens for the following reasons a The subject matter of the imtiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn.2d 740 (1980), b The issue presented in the initiative petition is now moot, and c Submitting the initiative to a vote of the citizens would be confusing in that the voters may think they have an impact on the tunnel decision Analysis. The primary question raised concerns the fundamental issue of whether this type of decision, which basically is whether to construct a vehicular traffic tunnel as part of its downtown street improvement to State Highway 304, is a proper subject for an initiative by the citizens of Bremerton Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 2 My conclusion, after reviewing the relevant cases in this state, is that the decision whether to construct a tunnel as part of the improvement project is not subject to an initiative by the citizens of Bremerton since the primary decision - making authority resides with the State Department of Transportation and not the City Council of the City of Bremerton The Bremerton City Charter provides for the process of initiative and referendum by the citizens of the City, which is to be exercised in the manner set forth in RCW 35 17 240 — 35.17 360 Certain procedural requirements must be met, such as obtaining the required number of signatures on the petition, before an initiative is valid. However, in addition to the procedural requirements for an initiative petition to be valid, there are two tests that have been created by the courts in this state and consistently applied to initiative measures to determine if they concern valid subjects for the exercise of the power of initiative. Not all types of city council actions are subject to the initiative and referendum process I will briefly outline these tests and how they apply to the facts in this situation The first test applied by the courts in Washington is whether the underlying council action is legislative or administrative in nature The power of the people to adopt legislation directly through the initiative process is limited to actions that are legislative in nature. See Ruano v Spellman, 81 Wn 2d 820 (1973) If an action is deemed to be administrative in nature, then the decision in not subject to initiative or referendum�powers In this context, an act is characterized as legislative or administrative according to the following two tests Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative. In addition, the power to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in nature if it merely pursues a plan already adopted by the legislative body itself or some power superior to it Citizens for Financially Responsible Government v Spokane, 99 Wn 2d 339 (1983) Applying these tests to the facts in this situation, a decision concerning whether to construct the street improvement project to SR 304 by means of a tunnel is not a legislative decision of the city council The street improvement is an action that will be of a permanent and general character, however, the decision to construct a major street improvement to SR 304 in downtown Bremerton by means of a vehicular traffic tunnel merely pursues a plan already adopted by some power superior to it, in this case, the State The key decisions relating to this project are no longer subject to the control of the City Council This is true for the underlying decision whether to pursue the project at all and also for the decision whether the project should be completed by means of a vehicular traffic tunnel or a surface street These key decisions are not being made by the City but rather by the State Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 3 One earlier Washington court case that needs to be considered in this analysis is Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980) In that case, an initiative was proposed by citizens in Seattle to withdraw the city's participation in a limited access highway project (an improvement to a portion of Interstate 90) The initiative was challenged as being beyond the powers of the initiative process The Waslungton Supreme Court applied the tests outlined above and concluded that the initiative process did not apply because the actions remaining to the City of Seattle were administrative in nature and thus not subject to a citizen's initiative The conclusion in the Seattle Building Council case is applicable to the situation in Bremerton. The court emphasized in that case that the highway being constructed was a limited access facility governed by the procedures in Ch. 47 52 RCW As a limited access facility, the state had full jurisdiction, responsibility and control over it While Seattle had a voice in determining the type of facility to be constructed, its participation was limited to the role provided in Ch. 47.52 RCW If the city disapproved of the plan proposed by the state highway department, it could only file that disapproval in writing with the state Secretary of Transportation and request a hearing before a board of review. After a hearing before the board, the board makes the final and binding decision, subject to revision only by stipulation of the parties. The court concluded the role of Seattle in the Interstate 90 improvement project was merely administrative in nature The city had no authority to act in a legislative capacity iwregard to the location and construction of the limited access facility. The city could not ban construction of the facility nor refuse to cooperate in construction once the plan had been adopted. The key decisions regarding the project were made by the state. In Bremerton, although the portion of the street protect under consideration is not a limited access facility, the result is the same in that the decision whether to proceed with construction of the project rests with the State, not the City Council The decision whether to construct a traffic tunnel as the means of accomplishing the project also rests with the State So in my opinion, the key facts in the Seattle Building Council case are similar to the facts in Bremerton and it seems likely that the court would reach the same conclusion The second court- created test that must be applied to determine if an action of a city council is subject to the initiative process is whether the underlying grant of authority by the state legislature in regard to the action being taken is to the city as a corporate entity or to its legislative authority (which is the city council for cities) See Lince v Bremerton, 25 Wn App 309 (1980), and Leornard v Bothell, 87 Wn 2d 847 (1992) If the grant of authority is to the city as a corporate entity, direct legislation by the people in the form of initiative or referendum is permissible If the grant of power is to the legislative authority of the city, then initiative and referendum is prohibited Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 4 When applying this test, it is necessary to determine the statutory grant of authority underlying the action involved. The primary statute applicable to this situation appears to be RCW 35.22 280, which contains a list of powers granted to first class cities such as Bremerton The statute provides; Any city of the first class shall have power . (7) To lay out, establish, open, alter, widen, extend, grade, pave, plank, establish grades, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and other public grounds . (12) To construct and keep in repair bridges, viaducts, and tunnels, and the regulate the use thereof, Because this statute does not reference the city council, the primary grant of authority by the state legislature to construct and improve streets and construct tunnels is to the city as a corporate entity. This leads to the conclusion that this action under tins test is subject to the citizen initiative process After reviewing the two tests applied by courts in this state to determine if an action by the City Council is subject to the initiative process, it appears that the proposed subject of the initiative,' which prolubits the City from constructing a vehicular traffic tunnel as a part of the improvements to SR 304, is not valid for the initiative process in Bremerton because the decision of the City Council is administrative in nature pursuant to Seattle Building Council City Council Action. A decision must be made by the City Council when an initiative measure is successfully submitted by the citizens. As noted above, the City Council has three options when reviewing the initiative petition- 1) adapt the proposed ordinance, 2) submit the initiative to a vote of the citizens, or 3) decide not to submit the initiative to a vote of the citizens The City Council is directed by RCW 35.17 260, after receiving a valid initiative, to either pass the proposed ordinance within twenty days or cause an election to be held on the next appropriate election date and submit the initiative to a vote of the citizens of the City. However, in view of the tests outlined above, the initiative proposed is not a proper subject for an initiative. As noted above, tlus is because the subject of the initiative relates to an administrative action Some city councils have refused to submit an initiative measure to the voters because they have deemed it to involve an issue that is not properly subject to the initiative process. The courts in this state have reviewed initiative measures before they are submitted to the electorate for a vote in order to make the determination of whether the proposed law is beyond the scope of the initiative process Seattle Building Trades Council v Seattle, 94 Wn 2d 740 (1980) The courts will apply the tests outlined above and make this determination Downtown Pedestnan/BTC Access Improvements Project August 2, 2004 Page 5 The state statutes that govern the initiative process for the City of Bremerton also provide a reference to subnuttmg a proposed initiative to the courts It provides in RCW 35.17 290 that if the clerk finds the petition msufficient, or if the city council refuses either to pass the initiative or order an election, then any taxpayer may commence an action in superior court in order to obtain a decree ordering an election to be held Additionally, because of the action by the State to take over the project, the subject matter to be voted on by the citizens is moot Any vote against the tunnel project will have no impact on the State's action relating to the same since the State is the decision maker A vote by the citizens on the initiative may cause confusion in that the voters may believe their vote will have an impact on the project when in fact it will not Conclusion. Because the proposed subject of the initiative, which prolubits the City from constructing a vehicular traffic tunnel as a part of the improvements to SR 304, is not valid for the initiative process because the decision of the City Council is administrative in nature pursuant to Seattle Building Council, it is my recommendation that the City Council vote to not submit the initiative to a vote of the citizens. Adak Washington State Transportation Building CAW Department of Transportation 310 Maple Park Avenue S E Douglas B. MacDonald P O Box 47300 Secretary of Transportation Olympia WA 98504 -7300 360 - 705 -7000 TTY 1 -800 -833 -6388 www wsdot wa gov July 13, 2004 The Honorable Cary Bozeman Mayor, City of Bremerton Councilman Daren Nygren, Council President, City of Bremerton 239 Fourth Street Bremerton WA 98337 Re Downtown Bremerton Pedestnan/BTC Access Improvement Project Dear Mayor Bozeman and Councilman Nygren I write today regarding the Downtown Bremerton Pedestnan/BTC Access Improvement Project on State Route 304 I understand that the draft Environmental Assessment stage of tlus project should be completed shortly. As we move from the draft Environmental Assessment to the final Environmental Assessment, WSDOT must step forward to fulfill its statutory responsibilities for management of this state highway project - State law requires WSDOT to "exercise all the powers and perform all the duties necessary, convenient, or incidental to the planning, locating, designing, constructing, improving, repairing, operating, and maintaining (of) state highways" (See RCW 47 01 260 ) We are prepared to handle the complex scope issues and public involvement question required of such a project The Environmental Assessment may raise many issues that will have to be addressed with the community before the project could proceed WSDOT looks forward to continuing to work with the City of Bremerton Randy Hain, WSDOT"s Olympic Region Administrator, can be reached via telephone at (360) 357 -2605 with any questions Sincerely, Douglas B acDonald Secretary of Transportation DBM jaa cc Randy Hain, WSDOT, 47440 Larry Ehl, WSDOT, 47322 City Council - FW Proposal for Bremerton Tunnel Page 1 From "Elizabeth & Don Drury" <dedrury@wavecable.com> To <atycouncII@ci bremerton wa us> Date Tue, Aug 3, 2004 1 15 PM Subject- FW Proposal for Bremerton Tunnel - - -- Original Message-- - From. Elizabeth & Don Drury [madto dedrury@wavecable com] Sent Tuesday, August 03, 2004 11 12 AM To. Bremerton City Council Cc Bozeman, Cary Subject Proposal for Bremerton Tunnel Dear Mayor Bozeman and Members of the Bremerton City Council, I have followed the saga of the proposed tunnel by the Bremerton ferry landing for many months I considered writing a letter earlier, but thought it would be unnecessary I am not one to write letters to have them printed in the newspaper However, I continue to read letters from people in the paper who seem to be thinking that you are not listening to the people While I do not live in Bremerton, I have a definite interest in this matter My husband and I live, in Seabeck, not very far away We have lived in Kitsap County for over thirty years and before that in King County I often use the Bremerton ferry (depending on how convenient the schedule is to where I am headed in Seattle) Returning home from Seattle, I am not preparing to shop in downtown Bremerton I am usually tired and my one stop might be at a grocery to buy bread or milk In my opinion, the majority of cars coming off the ferry are trying to get to areas unrelated to downtown Bremerton I have been excited to learn of plans to tunnel under the streets near the ferry terminal It would be wonderful to have more pedestrian friendly streets and parks in the downtown area near the waterfront This will draw me to Bremerton It would be helpful, I would think, to point out that there will be an exit for the City of Bremerton from the tunnel I truly believe, when there is a working tunnel to channel ferry traffic away from the business district, Bremerton will have the opportunity to become a rather nice city I believe shop owners will like the ambiance and so will all of us who live nearby. I believe I have been reading the letters (in The Sun) of many disgruntled property owners of stagnant, depressed, old buildings in downtown Bremerton i have often wished that the owners would tear down those buildings and create parks until the interest is evident in constructing new buildings in a more interesting commercial pattern that would allow views of the water and mountain and would draw shoppers to new businesses To think that our present setup will bring people back to Bremerton is not visionary I truly believe that this matter is to be handled by the Highway Department of the State of Washington With input from the community, I am confident that the design will be pleasing to all concerned City Council - FW pr000sal for Bremerton Tunnel Sincerely, (Gretchen) Elizabeth Drury 11525 Seabeck Hwy N W Seabeck, Washington 98380 (360)830 -3024 City Council - SR 304 Roufe Downtown Bremerton Page 1 From Phil Williams To Council, City Date: Tue, Aug 3, 2004 2 26 PM Subject: SR 304 Route in Downtown Bremerton A question was raised at the Council study session on 7/28 regarding the specific route of SR 304 in downtown Bremerton The State's Project Manager from the WSDOT Local Programs Office, Neal Campbell, provided the following answer via e-mail on 7/29 "We checked that out Our state highway log lists the whole loop Burwell down Pacific onto 1 st and into the ferry terminal, out of the ferry terminal onto 1st, Washington and back on Burwell The Washington side of the loop is listed as the 304 couplet Some commercial maps do not show both sides of the loop " If you have any further questions please contact either Mike Mechem or myself If you wish to contact the State directly you can e-mail Neal at camoben(cDwsdot we gov CC: Johnston, Paula, Lubovich, Roger, Mayor, The, Mechem, Mike, Sampley, Gene Gene David Hart P.O Box 773 Bremerton, WA 98337 August 4, 2004 Senator Patty Murray 111 Russell Senate Office Bldg Washington, D C. 20510 Dear Patty, 1 Well, here it is August 2004 And I'm reminded of the book, The Guns of August That's the book about the failure to communicate -- failure, which began World War I, 90 years ago Fortunately, President Kennedy read that book just before the beginning of the Cuban Missile Crisis, 42 years ago And he applied to the Cuban Missile Crisis the book's learned lessons in failure to communicate -- helping America to end the Crisis, preventing World War III, paying the price of 1 American life, and bearing the burden of 1 American life lost, to get it all done 2 Well, now we have another failure to communicate This time it's here in Washington State, today. Norm Dicks, Cary Bozeman and even a majority of the Bremerton City Council insist on spending 28 million dollars to build a tunnel through the heart of Bremerton, rather than use the money for a sensible surface street alternative, honor 3.000 citizen's unalienable right to a binding vote about it, and address the higher transportation priorities which exist in Washington State 3 Patty, give this message to Norm 4 If Norm wants millions of dollars to prevent the death of 7 more angels on Highway 3 between Gorst and Belfair, if he wants millions of dollars to prevent the death of 1 more angel at the Burley - Olalla intersection on Highway 16, and if Norm wants millions of dollars to build a bridge across Sinclair Inlet to decrease the level of danger for fatal and mayor -injury transportation collisions in the Gorst corridor, to save travel time, to prevent that daily air pollution and to improve air quality over Sinclair Inlet, then tell him you pledge to work hard to get that money for him 5 But without a binding vote by the people, respective to the tunnel, you pledge he will get -- not I penny for a tunnel through the heart of Bremerton Sincerely, / 1!5; / - GENE DAVID HART P.S Sorry I missed you at Kitsap's last Jefferson - Jackson supper I was simply too sick and tired to attend and suffer the political tom foolery that goes on, while our children remain uneducated, our fellow citizens are being killed on Washington State streets, roads and highways, and our people are without jobs PUBLIC COMMENT BEFORE THE CITY COUNCIL on 4 August, 2004 by Helen Miller Council President and Council Members: c(opy I offer comment concerning Council Resolution 2933, regarding the "Downtown Bremerton Pedestrian BTC Access Improvement Project" (Initiative #AB04 -151) I question the propriety and the legality of the Resolution being considered this evening - At this point in time - there is a City Study - but NO PROJECT. Where is the precedent for asking people to vote on a matter that is as yet undetermined ? Can a relatively small City group legally qualify to place a measure like this on a State ballot ? I also understand that the State Transportation Department has, or will be assuming control of the Pedestrian Friendly Project ... Which further makes the assumptions upon which the Initiative is predicated - moot. I am also concerned about the cost the taxpayers of our community would have to bear for putting the Initiative on the November Ballot, if that is indeed possible. Especially when no one in the city has identified the source of the $8,000 to $20,000 cost to put the measure on the ballot. This concern is based on what was being said by the Administration during the Budget Negotiations last year - that "there was not a nickel to spare in the approved budget." In light of the questionable legality and costs - it would be inappropriate for the Council to approve putting this measure on the Ballot. - - Re -�, P� J V v EsaP r: Karen Flynn Kitsap County Auditor - Elections & Voter Registration MQ 1026 Sidney Avenue, Suite 175 • Port Orchard, Washington 98366 -4678 Telephone (360) 337 -7128 • Facsimile (360) 337 -5769 Adi Ariwoola Financial Services Manager Winnie Flores -Logan Chi ef Deputy Auditor August 5, 2004 C E D AUG 0 9 2004 TAX & LICEIy sE City of Bremerton Attn: Paula Johnston 239 Fourth Street Bremerton WA 98337 Dear Paula Johnston: Petition Initiative 101 (Citizens Against The Tunnel) will be retained in the Auditor's Office for a period of at least six years Upon request, a certified copy or the original can be provided to the City of Bremerton at any time during the six - year retention period. Please contact the Elections Division at 360 337 -7128 with any questions you may have Sincerely, KAREN FLYNN Kitsap County Auditor B Dolores Gilmore, Elections Manager Administration Accounts Payable Payroll Vehicle Licensing Public Records (360) 337 -7129 (360) 337 -7122 (360) 337 -7123 (360) 337.4440 (360) 337 -4935 Fax 337 -4645 Fax 337 -7016 Fax 337 -7016 Fax 337 -4645 Fax 337 -4645 Toll Free from Olalla 851 -4147 • Bainbridge Island 842 -2061 Law FINANCIAL SERVICES City Clerk i Paula Johnston pjohnston@cl brenterton wa us Tel 36073-53i3 Fiw 360473-5200 = z 239 4th S#6`6 Bremerton, WA 98337' August 5, 2004 Karen Flynn Kitsap County Auditor 614 Division Street, MS-31 Port Orchard, Washington 98366 Dear Ms. Flynn- Enclosed for your records is a fully executed copy of Resolution No. 2933 approved by the City Council on August 4, 2004. This Resolution takes action not to submit Initiative Petition 101 relating to construction of a vehicular traffic tunnel as part of the Downtown Pedestrian/BTC Access Improvements Project to the voters at the November 2, 2004 General Election W Sincerel , cere, City C ul aa Johns n C PJ:ch enclosure RESOLUTION NO. q 33 A RESOLUTION of the City Council of the City of Bremerton, Washington, taking action not to submit to the qualified electors of the City of Bremerton at the November 2, 2004 General Election, Initiative Petition 101 relating to construction of a vehicular traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements Project WHEREAS, an Initiative Petition signed by registered voters, equal in number to at least twenty -five percent of the total votes cast for all candidates for Mayor at the last preceding City of Bremerton election, has been filed with the City Clerk as provided for in RCW 35 17 260, and WHEREAS, the Petition seeks to prohibit the City from constructing a traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements Project ( "Project ") WHEREAS, the City Clerk, through the Kitsap County Auditor, on July 23, 2004, verified the sufficiency of the signatures thereto, and WHEREAS, RCW 35 17 260 provides for the matter to be presented to the City Council within 20 days of certification of sufficiency of signatures for either adoption of the ordinance as proposed or to forward the initiative to election on November 2, 2004, and WHEREAS, the County Auditor requires a Resolution approved by the City Council authorizing the placement of the proposition on the November General Election, and WHEREAS, the State of Washington, in a letter from the Secretary of Transportation received by the City on July 13, 2004, notified the City that the State is assuming the Project, and WHEREAS, because the State has assumed jurisdiction of the Project, the City Council finds that the subject matter of the initiative petition is not a valid subject pursuant to Seattle Building and Construction Trades Council v Seattle, 94 Wn 2d 740 (1980), the issue presented in the initiative petition is now moot, and submitting the initiative to a vote of the citizens would be confusing in that the voters may think may think they have an impact on the tunnel decision, and WHEREAS, the City Council has three options when reviewing the initiative petition 1) adopt the proposed ordinance, 2) submit the initiative to a vote of the citizens, or 3) decide not to submit the initiative to a vote of the citizens, and WHEREAS, because of the above -noted findings, the City Council finds that it would be inappropriate to submit the Initiative Petition to the voters, NOW THEREFORE 1 Initiative Petition 101 THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS SECTION 1. The recitals set forth above are hereby incorporated as if set forth herein in full SECTION 2. Initiative Petition 101 shall not be placed on the November General Election SECTION 3. SeverabihV If any one or more sections, subsections, or sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Resolution and the same shall remain in full force and effect SECTION 4. E fective Date This Resolution shall take effect and be in force immediately upon its passage PASSED by the City Council of the City of Bremerton, Washington this j day of 0 469 , Udt , 2004 DAREN NYGREN, Councl#Pr APPROVED AS TO FORM ATTEST ER A L O ICH, City orn A J ON, City Clerk R \LEGAL\Resoluhons \City CouncilUnitiative Petition doc 2 Initiative Petition 101 07/23/2004 15 58 FAX 360 337 5769 KITSAP COUNTY ELECTIONS 0002 � r Karen Flynn MW Kitsa County Auditor - Election p � s &Voter Registration 1026 Sidney Avenue, Suite 175 4 Port Orchard, Washington 98366 -4678 Telephone (360) 337 -7128 • Facsimile (360) 337 -5769 Add Artwoola Financial Services Manager winnie Flores -Logan Chief Deputy Auditor CERTIFICATE OF SUFFICIENCY I hereby certify, In accordance with RCW 35.17 260, that the Petition Initiative 101 from the City of Bremerton, Washington (Citizens Against The Tunnel), was signed by at least twenty -five percent (2,060 of 8,238) of the votes cast for all candidates for mayor at the last general election at the last preceding general election. WITNESS my hand and official seal of office affixed thus 23" day of July 2004. IV f v Y KAREN M&N �, • r --�- '- f i Kitsap County Auditor ; , f •.' �' • r Adm,nistlahon Accounts Payable Payroll Vehicle Llaenaing Public Records (360) 337 -7129 (380) 337 -7122 (360) 337.7129 (360) 337-0440 (360) 3374935 Fax 337 -4645 Fax 337 -7016 Fax $37.7010 Fax. 337-4645 Fax 337-645 7'011 Free from. 01alla 851 - 4147 • Bainbridge Island 542 -2061 -�45 - -- _. N' e- C61o�� , -.e ms — -__. _ _ _ __ _ _4L�i/� _. _ O _ _�itl� 00 ) �i- _a -PPaY' Karen Flynn Kitsa P County Auditor - Elections & Voter Registration !MHINGro" 1026 Sidney Avenue, Suite 175 • Port Orchard, Washington 98366 -4678 Telephone (360) 337 -7128 • Facsimile (360) 337 -5769 Adk Ariwoola Financial Services Manager Winne Flores -Logan Chief Deputy Auditor CERTIFICATE OF SUFFICIENCY I hereby certify, in accordance with RCW 35 17.260, that the Petition Initiative 101 from the City of Bremerton, Washington (Citizens Against The Tunnel), was signed by at least twenty -five percent (2,060 of 8,238) of the votes cast for all candidates for mayor at the last general clection at the last preceding general election. WITNESS my hand and official seal of office affixed this 23 day of July 2004. ry ` " c KAREN FL Kitsap County Auditor ' t Administration Accounts Payable Payroll Vehicle Licensing Public Records (360) 337 -7129 (360) 337 -7122 (360) 337 -7123 (360) 3374440 (360) 337 -4935 Fax 337 -4645 Fax 337 -7016 Fax 337 -7016 Fax 337 -4645 Fax 337.4645 Toll Free from Olalla 851 -4147 • Bainbridge Island 842 -2061 TRANSMISSION VERIFICATION REPORT TIME 05/26/2004 15 15 DATE DIME 05/26 15 14 FAX NO /NAME 94782065 DURATION 00 01 17 PAGE(S) 02 RESULT OK MODE STANDARD 373-���� INITIATIVE 101 "Citizens Against The Tunnel (CATT)" Wants to Give you the RIGHT TO VOTE ON A TUNNEL INITIATIVE PETITION FOR SUBMISSION TO THE CITY COUNCIL OF BREMERTON, WASHINGTON To the City Clerk of the City of Bremerton Washington We, the undersigned registered voters of the City of Bremerton Washington respectfully direct that this petition and the proposed ordinance contained herein entitled "An ordinance prohibiting construction of a downtown tunnel be enacted into law and furthermore if the City Council fails to enact this ordinance that it be submitted to a vote of the people at a regular or special election to be held on a date and in the manner required by the Revised Code of Washington and each of us for himself or herself says I have personally signed this petition, I am a legal voter of the City of Bremerton Washington my residence address is correctly stated and I have knowingly signed this petition only once Statement of Action Sought The purpose of this initiative is to prohibit the City of Bremerton from constructing a vehicular traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements project Such an initiative is authonzed by the Bremerton City Charter Section 5 and Section 36 adopting RCW 35 17 240 through RCW 35 17 360 Test of Ordmance The proposed ordinance reads as follows Ordinance_ (Initiative #101) An ordinance of the City of Bremerton prohibiting construction of a vehicular traffic tunnel as part of the Downtown Pedestrian/BTC Access Improvements The City of Bremerton Does Ordain Section 1 The City of Bremerton shalt not construct a vehicular traffic tunnel as part of its Downtown Pedestran/BTC Access Improvements project Warning Every person who signs this petition with any other than his or her true name or who knowingly signs more than one of these petitions, or signs a petition seeking an election when he or she is not a legal voter or signs a petition when he or she is otherwise not qualified to sign or who makes herein any false statement, shall be guilty of a misdemeanor CITY OF BREMERTON INITIATIVE TO THE PEOPLE CITY OF BREMERTON VOTERS SIGN BELOW Petitioner s Residence Address Petitioner s Signature Date Petitioner s Printed Name Must reside within City limits of Bremerton City or Town Zip Coun 2 3 4 5 6 7 8 9 10 MAIL COMPLETED PETITIONS TO CITIZENS AGAINST THE TUNNEL (CATT) PO Box 502, Bremerton, WA 98337 (360) 373 -1594 }: RECEIPT FOR PETITION We, the undersigned, do hereby certify that we received on __._ 0 (J� �� 3 1 9 G , at 1 ' 7 1 from C) CY petition(s) numbered l , with an estimated 3 , signatures. (Sig ned) !_ \� Election Official (signed) ,Ele tion Official l I ACKNOWLEDGED BY : . % ' e , 117 `'Petitionbkr � ' FINANCIAL SERVICES Cft Clerk / Paula Johnston 7 pjohnston@cl bremerton wa us 0 0 ',Ftix360'473 - 5200 ,a .2 39 4th t' - Bre" h6nj July 13, 2004 ������ ��,�3 ' po W � I Karen Flynn Kitsap County Auditor 1026 Sidney Avenue, Suite 175 Port Orchard, Washington 98366-4678 RE- Initiative #101 Petition Dear Ms. Flynn Pursuant to RCW 35 21 005, 1 am transmitting the petition for Initiative #101 that contains approximately 3,125 signatures for your office to certify We look forward to receiving your certification as soon as possible Sincerely, If Al Paula John ton City Clerk PJ.ch RECEIVED Office of the City Clerk INI'T'IA'T'IVE 101 Date 7 -12-0 Ti 2:35 p.m. SIG T "Citizens Against The Funnel (CATT)" Wants to Give you the RIGHT TO VOTE ON A TUNNEL INITIATIVE PETITION FOR SUBMISSION TO THE CITY COUNCIL OF BREMERTON, WASHINGTON. To the City Clerk of the City of Bremerton, Washington We, the undersigned registered voters of the City of Bremerton, Washington, respectfully direct that this petition and the proposed ordinance contained herein, entitled "An ordinance prohibiting construction of a downtown tunnel' be enacted into law, and furthermore, if the City Council fails to enact this ordinance, that it be submitted to a vote of the people at a regular or special election to be held on a date and in the manner required by the Revised Code of Washington, and each of us for himself or herself says I have personally signed this petition, I am a legal voter of the City of Bremerton, Washington, my residence address is correctly stated, and I have knowingly signed this petition only once Statement of Action Sought: The purpose of this initiative is to r� ohibit the City of Bremerton from constructing a vehicular traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements project Such an initiative is authonzed by the Bremerton City Charter Section 5 and Section 36, adopting RCW 35 17 240 through RCW 35 17 360 Text of Ordinance The proposed ordinance reads as follows Ordinance (Initiative #101) An ordinance of the City of Bremerton prohibiting construction of a vehicular traffic tunnel as part of the Downtown Pedestnan/BTC Access Improvements The City of Bremerton Does Ordain Section 1 The City of Bremerton shall not construct a vehicular traffic tunnel as part of its Downtown Pedestnan/BTC Access Improvements project Warning Every person who signs this petition with any other than his or her true name, or who knowingly signs more than one of these petitions, or signs a petition seeking an election when he or she is not a legal voter, or signs a petition when he or she is otherwise not qualified to sign, or who makes herein any false statement, shall be guilty of a misdemeanor CITY OF BREMERTON INITIATIVE TO THE PEOPLE CITY OF BREMERTON VOTERS SIGN BELOW: Petitioner's Residence Address Petitioner's Signature Date Petitioner's Printed Name Must reside within City limits of Bremerton City or Town Zip � j Coun ty V / 3 4 5 6 7 8 9 10 MAIL COMPLETED PETITIONS TO: CITIZENS AGAINST THE TUNNEL (GATT) PO Box 502, Bremerton, WA 98337 (360) 373 -1594 07/23/2004 15 58 FAX 360 337 5769 KITSAP COUNTY ELECTIONS 1ij001 Karen Flynn Kitsap County Auditor ° Elections & Voter Registration 1026 Sidney Avenue, Suite 175 • Port Orchard, Washington 98366 -4678 Telephone (360) 337 -7128 • Facsimile (360) 337 -5769 FAX To u From. D D 1 1 , 4tp ay� Fax: _ �0 , �j7 3, 52 Oa Date Phone: 4- 17 3, 6 g!j Phone: RE: 1Y.-Z r D Pages: (Includes cover sheet count) ❑ Urgent XFor Review O Please Comment ❑ Please Reply Comments: r 07/23/2004 15 58 FAX 360 337 5769 KITSAP COUNTY ELECTIONS Z 002 r ,P Karen Flynn Kitsap County Auditor - Elections & Voter Registration x, 1026 Sidney Avenue, Suite 175 + Port Orchard, Washington 983664678 Telephone (360) 337 -7128 • Facsunlle (360) 337 -5769 AM Ariwoola Financial S&wces Manager Winnte Flores - Logan Chief Deputy Auditor CERTIFICATE OF SUFFICIENCY I hereby certify, in accordance with RCW 35.17.260, that the Petition Initiative 101 from the City of Bremerton, Washington (Citizens Against The Tunnel), was signed by at least twenty -five percent (2,060 of 8,23$) of the votes cast for all candidates for mayor at the last general election at the last preceding general election. WITNESS my hand and official seal of office affixed this 23r day of July 2004. , , 4 KAREN F • ,f f ,�` ` f Kitsap County Auditor ' Adinin,strahon Accounts Payable Payroll VeMcla Llceneing Public Records (360) 337 -7129 (350) 337 -7122 (360)33 (360) 337-4440 (360) 337-4935 Fax 3374645 Fax 337 -7016 Fax 337.7010 Fax 337-4645 Fax 337.4645 'roll Free from Malta 8514147 • Bainbridge Island 842 -2061 = = CITY OF BREMERTON 239 4 STREET BREMERTON WA 99337 R Y � FAX NUMBER (360) 473 -5200 FAX COVER SHEET DATE SENT - D TIME TO FAX NUMBER SENDER SUBJECT NUMBER OF PAGES INCLUDING COVER SHEET COMMENTS- TRANSMISSION VERIFICATION REPORT TIME 07/23/2004 15:43 DATE DIME 07123 15 41 FAX NO INAME 94782065 DURATION 00.01 08 PAGE(S) 02 RESULT OK MODE STANDARD L � RESOLUTION NO. A RESOLUTION of the City of Bremerton, Washington providing for the submission to the qualified electors of the City at the February 2, 1999 Special Election, a Proposition to "Stop Fluoridation of the Water Supply of Bremerton, Washington' WHEREAS, an Initiative Petition signed by registered voters, equal in number to at least twenty -five percent of the total votes cast for all candidates for Mayor at the last preceding City of Bremerton election, has been filed with the City Clerk as provided for in RCW 35 17 260 WHEREAS, the City Clerk, through the Kitsap County Auditor, on September 25, 1998, verified the sufficiency of the signatures thereto WHEREAS, RCW 35 17 260 provides for the matter to be presented to the City Council within 20 days of certification of sufficiency of signatures for either adoption of ordinance as proposed or to forward the initiative to election on February 2, 1999 WHEREAS, the County Auditor requires a Resolution approved by the City Council authorizing the placement of the proposition on the February Special Election WHEREAS, the Bremerton City Council by passage of this Resolution takes no position on the proposition in forwarding to this item to the County Auditor NOW, THEREFORE, BE IT RESOLVED by the Bremerton City Council that a proposition to "Stop Fluoridation of the Water Supply of Bremerton, Washington' be placed on the February 2, 1999 Special Election BE IT FURTHER RESOLVED that the City Attorney shall draft and forward the appropriate ballot title to the County Auditor for the Proposition PASSED by the City Council of the City of Bremerton this 14th day of October 1998 DAVID FARR, Council President v � placable state statutes allow approximately 50 days for an Initiative Petition filing and view process which includes time for other contingencies such as amendments and peals Using the Statute, the filing date would be July 28, 1998 The following schedule is made available These dates do not accommodate any contingencies as provided for in statute or otherwise 8/28/98 (Friday) Petition to be filed with City of Bremerton by close of business, 5 00 p m 9/1/98 (Tuesday) City of Bremerton files petition with county for signature verification County requires petition by early morning on this date County requests five full days to verify 9/9/98 (Wednesday) County returns petition to City for placement on Agenda City policy requires that the council secretary receive all items by 12 00 noon on the Thursday (9/10/98) prior to the council meeting 9/16/98 (Wednesday) Resolution presented to council 9/18/98 (Friday) Resolution filed with County (By state law) i ­3 Z - Z� Lew vu mv C 5x4P5 �A_ ADMINISTRATIVE SERVICES Interim City Clerk / Paula Johnston F_ pjohnston@cl brernerton wa us i.1360-473-531) Fax 360-473-5200 239 4th Street' Date May 26, 2004 Bremerton, WA 98 , 337 To Roger Lubovich, City Attorney From Paula Johnston, Interim City Clerk Re Initiative Petition Timeline Initiative Petition 101 Timeline Target Date of November 2, 2004 — General Election July 29, 2004 Petition submitted to City Clerk August 2, 2004 Petition transmitted to Kitsap County Auditor (within 3 business days) RCW 35 21 005 August 16, 2004* County issues Certificate of Sufficiency (or Non) RCW 35 21 August 26, 2004** Amended Petition submitted to City Clerk RCW 35 17 280 if Non-Sufficient September 7, 2004 County issues Certificate of Sufficiency (or Non) RCW 35 17 280 based on amended petition September 8, 2004 Bremerton City Council Committees discuss Resolution for Initiative Petition September 15, 2004 Bremerton City Council considers Resolution September 16, 2004 Resolution filed with Kitsap County Auditor for placement on November 2, 2004 General Election Ballot 17 September,24, Final day that Resolution can be submitted to the Auditor in order to make the November 2 ° General Election. Auditors Office must make determination with reasonable promptness which has in some instances been 30 days Auditor's Office has advised that they can probably verify 3,000 signatures within approx 10 workmg days In the event of Non-Sufficiency Petitioner has 10 days to amend the petition with additional signatures in which case more tune for review will be needed NOTE: The above dates are estimated guidelines to meet the due date of September 24, 2004 for submitting the approved Resolution to the County Auditor. The time for County review and a determination of non - sufficiency could affect the date of submittal to the County Auditor for election. From <Joanbrem @aol com> To: <pjohnston @ci bremerton wa us> Date: 7/21/04 7 29AM Subject: Initiative timeline document dtd 5/26/04 Dear Paula Please send me another copy of the May 26, 2004 timeline document concerning the initiative process My copy has been soiled and unreadable My e-mail address is joanbrem @aol corn My fax # 478 -2065 Thank You, Louis Soriano e From: Paula Johnston To: joanbrem @aol com Date: 7/12/04 4 09PM Subject: Initiative 101 Lou, This email is to notify you that there is a correction on the time line I shared with you (via May 26, 2004 memo to Roger Lubovich) regarding pertinent dates for the petition process Please note that the final day the Kitsap County Auditor will accept a resolution from City Council placing Initiative 101 on the General Election ballot is Friday, September 17, 2004 NOT September 24th as stated The Election Office had given me the wrong date when preparing the time line The date of September 15, 2004 for City Council to consider a resolution is still appropriate Please let me know if I can clarify Thanks Sincerely, Paula Johnston, City Clerk City of Bremerton 239 4th St, Bremerton WA 98337 (360)473 -5323 (360)473 -5200 fax pjohnston @ci bremerton wa us CC: Roger Lubovich CITY OF BREMERTON ,> 2394 TH STREET BREMERTON WA 98337 FAX NUMBER (360) 473 -5200 FAX COVER SHEET DATE SENT TIME TO FAX NUMBER SENDER J ��j -S 3a3 SUBJECT NUMBER OF PAGES INCLUDING COVER SHEET COMMENTS. Z 2 or ? - -6 Za s FINANCIAL SERVICES City Clerk / Paula Johnston - pjohnston&Lbrenwdon waus 73-5311 F& 366"4 2394th Street July 13, 2004 Karen Flynn Kitsap County Auditor 1026 Sidney Avenue, Suite 175 Port Orchard, Washington 98366-4678 RE Initiative #101 Petition Dear Ms. Flynn Pursuant to RCW 35 21005, 1 am transmitting the petition for Initiative #101 that contains approximately 3,125 signatures for your office to certify We look forward to receiving your certification as soon as possible Sincerely, Paula John ton City Clerk PJ ch Initiative Petition 101 Timeline Target Date of November 2, 2004 — General Election July 29, 2004 Petition submitted to City Clerk August 2, 2004 Petition transmitted to Kitsap County Auditor (within 3 business days) RCW 35 21 005 August 16, 2004* County issues Certificate of Sufficiency (or Non) RCW 35 21.005 August 26, 2004 ** Amended Petition submitted to City Clerk RCW 35.17 280 if Non - Sufficient September 7, 2004 County issues Certificate of Sufficiency (or Non) RCW 35.17.280 based on amended petition September 8, 2004 Bremerton City Council Committees discuss Resolution for Initiative Petition September 15, 2004 Bremerton City Council considers Resolution September 16, 2004 Resolution filed with Krtsap County Auditor for placement on November 2, 2004 General Election Ballot 1? September3 , 2004 Final day that Resolution can be submitted to the Auditor in order to make the November 2 °d General Election. *Auditors Office must make determination with reasonable promptness which has in some instances been 30 days Auditor's Office has advised that they can probably verify 3,000 signatures within approx 10 working days * *In the event of Non-Sufficiency Petitioner has 10 days to amend the petition with additional signatures in which case more time for review will be needed. NOTE: The above dates are estimated guidelines to meet the due date of September 24, 2004 for submitting the approved Resolution to the County Auditor. The time for County review and a determination of non-sufficiency could effect the date of submittal to the County Auditor for election. �( D Page 1 of 1 RCW 35.17.240 Legislative -- Referendum -- Filing suspends ordinance. Upon the filing of a referendum petition praying therefor, the commission shall reconsider an ordinance subject to referendum and upon reconsideration shall defeat it in its entirety or shall submit it to a vote of the people The operation of an ordinance so protested against shall be suspended until the referendum petition is finally found insufficient or until the ordinance protested against has received a majority of the votes cast thereon at the election [1965 c7 §35 17 240 Prior 1911 c 116 § 22, part, RRS § 9111, part ] http //www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =35 17 240 &printver 4/23/2004 Page 1 of 1 ti RCW 35.17.250 Legislative -- Referendum -- Petitions and conduct of elections. All provisions applicable to the character, form, and number of signatures required for an initiative petition, to the examination and certification thereof, and to the submission to the vote of the people of the ordinance proposed thereby, shall apply to a referendum petition and to the ordinance sought to be defeated thereby [1965 c 7 § 35 17 250 Prior 1911 c 116 § 22, part, RRS § 9111, part ] http //www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =35 17 250 &printver 4/23/2004 Page 1 of 1 RCW 35.17.260 '25-7. 2 3 g Legislative -- Ordinances by initiative petition. Ordinances may be initiated by petition of registered voters of the city filed with the commission If the petition accompanying the proposed ordinance is signed by the registered voters in the city equal in number to twenty -five percent of the votes cast for all candidates for mayor at the last preceding city election, and if it contains a request that, unless passed by the commission, the or inance e submitted to a vote of the registered voters of the city, the commission shall either (1) Pass the proposed ordinance without alteration within twenty days after the county auditor's certificate of sufficiency has been received by the commission, or (2) Immediately after the county auditor's certificate of sufficiency for the petition is received, cause to be called a special election to be held on the next election date, as provided in *RCW 29 13 020, that occurs not less than forty -five days thereafter, for submission of the proposed ordinance without alteration, to a vote of the people unless a general election will occur within ninety days, in which event submission must be made on the general election ballot [1996 c 286 § 4, 1965 c 7 §35 17 260 Prior 1911 c 116 § 21, part, RRS § 9110, part ] NOTES: *Reviser's note: RCW 29 13 020 was recodified as RCW 29A 04 330 pursuant to 2003 c 111 § 2401, effective July 1, 2004 http //www leg wa gov/RCW /index cfm Section &Section =35 17 260 &printver 4/23/2004 Page 1 of 1 RCW 35.17.270 Legislative -- Initiative petition -- Submission procedures. The petitioner preparing an initiative petition for submission to the commission shall follow the procedures established in RCW 35 21 005 [1996 c 286 § 5, 1965 c 7 § 35 17 270 Prior (1) 1911 c 116 § 21, part, RRS § 9110, part (») 1911 c 116 § 20, part, RRS § 9109, part (111) 1911 c 116 § 24, RRS § 9113 ] http / /www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =35 17 270 &printver 4/23/2004 Page 1 of 3 RCW 35.21.005 Sufficiency of petitions. Wherever in this title petitions are required to be signed and filed, the following rules shall govern the sufficiency thereof (1) A petition may include any page or group of pages containing an identical text or prayer intended by the circulators, signers or sponsors to be presented and considered as one petition and containing the following essential elements when applicable, except that the elements referred to in (d) and (e) of this subsection are essential for petitions referring or initiating legislative matters to the voters, but are directory as to other petitions (a) The text or prayer of the petition which shall be a concise statement of the action or relief sought by petitioners and shall include a reference to the applicable state statute or city ordinance, if any, (b) If the petition initiates or refers an ordinance, a true copy thereof, (c) If the petition seeks the annexation, incorporation, withdrawal, or reduction of an area for any purpose, an accurate legal description of the area proposed for such action and if practical, a map of the area, (d) Numbered lines for signatures with space provided beside each signature for the name and address of the signer and the date of signing, (e) The warning statement prescribed in subsection (2) of this section (2) Petitions shall be printed or typed on single sheets of white paper of good quality and each sheet of petition paper having a space thereon for signatures shall contain the text or prayer of the petition and the following warning WARNING Every person who signs this petition with any other than his or her true name, or who knowingly signs more than one of these petitions, or signs a petition seeking an election when he or she is not a legal voter, or signs a petition when he or she is otherwise not qualified to sign, or who makes herein any false statement, shall be guilty of a misdemeanor Each signature shall be executed in ink or indelible pencil and shall be followed by the name and address of the signer and the date of signing (3) The term "signer" means any person who signs his or her own name to the petition http //www leg wa gov /RCW /mdex cfm ?f iseaction= Section &Section =35 21 005 &printver 4/23/2004 Page 2 of 3 (4) To be sufficient a petition must contain valid signatures of qualified registered voters or property owners, as the case may be, in the number required by the applicable statute or ordinance Within three working days after the filing of a petition, the officer with whom the petition is filed shall transmit the petition to the county auditor for petitions signed by registered voters, or to the county assessor for petitions signed by property owners for determination of sufficiency The officer or officers whose duty it is to determine the sufficiency of the petition shall proceed to make such a determination ' with reasonable promptness and shall file with the officer receiving the petition for filing a certificate stating the date upon which such determination was begun, which date shall be referred to as the terminal date Additional pages of one or more signatures may be added to the petition by filing the same with the appropriate filing officer prior to such terminal date Any signer of a filed petition may withdraw his or her signature by a written request for withdrawal filed with the receiving officer prior to such terminal date Such written request shall so sufficiently describe the petition as to make identification of the person and the petition certain The name of any person seeking to withdraw shall be signed exactly the same as contained on the petition and, after the filing of such request for withdrawal, prior to the terminal date, the signature of any person seeking such withdrawal shall be deemed withdrawn (5) Petitions containing the required number of signatures shall be accepted as prima facie valid until their invalidity has been proved (6) A variation on petitions between the signatures on the petition and that on the voter's permanent registration caused by the substitution of initials instead of the first or middle names, or both, shall not invalidate the signature on the petition if the surname and handwriting are the same (7) Signatures, including the original, of any person who has signed a petition two or more times shall be stricken (8) Signatures followed by a date of signing which is more than six months prior to the date of filing of the petition shall be stricken (9) When petitions are required to be signed by the owners of property, the determination shall be made by the county assessor Where validation of signatures to the petition is required, the following shall apply (a) The signature of a record owner, as determined by the records of the county auditor, shall be sufficient without the signature of his or her spouse, (b) In the case of mortgaged property, the signature of the mortgagor shall be sufficient, without the signature of his or her spouse, (c) In the case of property purchased on contract, the signature of the contract purchaser, as shown by the records of the county auditor, shall be deemed sufficient, without the signature of his or her spouse, (d) Any officer of a corporation owning land within the area involved who is duly authorized to execute deeds or encumbrances on behalf of the corporation, may sign on behalf of such corporation, and shall attach to the petition a certified excerpt from the bylaws of such corporation showing such authority, http //www leg wa gov/RCW /index cfm Section &Section =35 21 005 &prmtver 4/23/2004 Page 3 of 3 (e) When property stands in the name of a deceased person or any person for whom a guardian has been appointed, the signature of the executor, administrator, or guardian, as the case may be, shall be equivalent to the signature of the owner of the property, and (f) When a parcel of property is owned by multiple owners, the signature of an owner designated by the multiple owners is sufficient (10) The officer or officers responsible for determining the sufficiency of the petition shall do so in writing and transmit the written certificate to the officer with whom the petition was originally filed [2003 c 331 § 8, 1996 c 286 § 6 ] NOTES: Intent -- Severability -- Effective date -- 2003 c 331: See notes following RCW 35 13 410 http / /www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =35 21 005 &printver 4/23/2004 Page 1 of 1 RCW 29.79.090 Petitions to legislature -- Form. (Effective until July 1, 2004.) Petitions for proposing measures for submission to the legislature at its next regular session, shall be substantially in the following form WARNING Every person who signs this petition with any other than his or her true name, knowingly signs more than one of these petitions, signs this petition when he or she is not a legal voter, or makes any false statement on this petition may be punished by fine or imprisonment or both INITIATIVE PETITION FOR SUBMISSION TO THE LEGISLATURE To the Honorable , Secretary of State of the State of Washington We, the undersigned citizens and legal voters of the State of Washington, respectfully direct that this petition and the proposed measure known as Initiative Measure No and entitled (here set forth the established ballot title of the measure), a full, true, and correct copy of which is printed on the reverse side of this petition, be transmitted to the legislature of the State of Washington at its next ensuing regular session, and we respectfully petition the legislature to enact said proposed measure into law, and each of us for himself or herself says I have personally signed this petition, I am a legal voter of the State of Washington in the city (or town) and county written after my name, my residence address is correctly stated, and I have knowingly signed this petition only once Petitioner's Print name Residence address, City signature for positive street and number or County identification if any Town (Here follow 20 numbered lines divided into columns as below ) 1-- - - - -- -- - --- -- -- -- -- -- -- -- - - - --- - - - - - -- -- -- - - -- 2--------- ------ -- - - -- ------ - - - --- - -- - - -- -- - - ---- 3--------- ----- - - - ---- --- --- -- - - -- --- -- -- -- - - - - -- etc [1982 c 116 § 9, 1965 c 9 § 29 79 090 Prior 1913 c 138 § 5, part, RRS § 5401, part 1 http / /www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =29 79 090 &printver 4/23/2004 Page 1 of 1 RCW 35.17.280 Legislative -- Initiative petition -- Checking by clerk. Within ten days from the filing of a petition submitting a proposed ordinance the city clerk shall ascertain and append to the petition his certificate stating whether or not it is signed by a sufficient number of registered voters, using the registration records and returns of the preceding municipal election for his sources of information, and the commission shall allow him extra help for that purpose, if necessary If the signatures are found by the clerk to be insufficient the petition may be amended in that respect within ten days from the date of the certificate Within ten days after submission of the amended petition the clerk shall make an examination thereof and append his certificate thereto in the same manner as before If the second certificate shall also show the number of signatures to be insufficient, the petition shall be returned to the person filing it [1965 c 7 § 35 17 280 Prior (1) 1911 c 116 § 20, part, RRS § 9109, part (u) 1911 c 116 § 21, part, RRS § 9110, part ] http / /www leg wa gov/RCW /index cfm Section &Section =35 17 280 &prmtver 4/23/2004 Page 1 of 1 RCW 35.17.290 Legislative -- Initiative petition -- Appeal to court. If the clerk finds the petition insufficient or if the commission refuses either to pass an initiative ordinance or order an election thereon, any taxpayer may commence an action in the superior court against the city and procure a decree ordering an election to be held in the city for the purpose of voting upon the proposed ordinance if the court finds the petition to be sufficient [1965 c 7 § 35 17 290 Prior (j) 1911 c 116 § 20, part, RRS § 9109, part (n) 1911 c 116 § 21, part, RRS § 9110, part ] http / /www leg wa gov/RCW /index cfm Section &Section =35 17 290 &printver 4/23/2004 Page 1 of 1 RCW 35.17.300 Legislative -- Initiative -- Conduct of election. Publication of notice, the election, the canvass of the returns and declaration of the results, shall be conducted in all respects as are other city elections Any number of proposed ordinances may be voted on at the same election, but there shall not be more than one special election for that purpose during any one six -month period [1965 c 7 § 35 17 300 Prior (1) 1911 c 116 § 20, part, RRS § 9109, part (n) 1911 c 116 § 21, part, RRS § 9110, part ] NOTES: Canvassing returns, generally Chapter 29A 60 RCW Conduct of elections -- Canvass RCW 29A 60 010 http //www leg wa gov /RCW /index cfm ?fuseaction= Section &Section =35 17 300 &printver 4/23/2004 Page 1 of 1 RCW 35.17.310 Legislative -- Initiative -- Notice of election. The city clerk shall cause any ordinance or proposition required to be submitted to the voters at an election to be published once in each of the daily newspapers in the city not less than five nor more than twenty days before the election, or if no daily newspaper is published in the city, publication shall be made in each of the weekly newspapers published therein This publication shall be in addition to the notice required in *chapter 29 27 RCW [1965 c 7 § 35 17 310 Prior 1911 c 116 § 21, part, RRS § 9110, part ] NOTES: *Reviser's note: RCW 29 27 0665, containing ballot title notice requirements, has been recodified as RCW 29A 36 080 pursuant to 2003 c 111 § 2401, effective July 1, 2004 http //www leg wa gov /RCW /index cfm ?fuseaction= Section &Section =35 17 310 &prmtver 4/23/2004 Page 1 of 1 RCW 35.17.330 Legislative -- Initiative -- Effective date -- Record. If the number of votes cast thereon favor the proposed ordinance, it shall become effective immediately and shall be made a part of the record of ordinances of the city [1965 c7 § 35 17 330 Prior 1911 c 116 § 21, part, RRS § 9110, part] http / /www leg wa gov /RCW /index cfm'?fuseaction= Section &Section =35 17 330 &prmtver 4/23/2004 Page 1 of 1 RCW 35.17.340 Legislative -- Initiative -- Repeal or amendment. Upon the adoption of an ordinance initiated by petition, the city clerk shall write on the margin of the record thereof "ordinance by petition No ," or "ordinance by vote of the people," and it cannot be repealed or amended except by a vote of the people [1965 c7 §35 17 340 Prior 1911 c 116 § 21, part, RRS § 9110, part] http / /www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =35 17 340 &prmtver 4/23/2004 Page 1 of 1 RCW 35.17.350 Legislative -- Initiative -- Repeal or amendment -- Method. The commission may by means of an ordinance submit a proposition for the repeal or amendment of an ordinance, initiated by petition, by submitting it to a vote of the people at any general election and if a majority of the votes cast upon the proposition favor it, the ordinance shall be repealed or amended accordingly A proposition of repeal or amendment must be published before the election thereon as is an ordinance initiated by petition when submitted to election [1965 c 7 § 35 17 350 Prior 1911 c 116 § 21, part, RRS § 9110, part ] http / /www leg wa gov/RCW /index cfm ?fuseaction= Section &Section =35 17 350 &printver 4/23/2004 Page 1 of 1 a • RCW 35.17.360 Legislative -- Initiative -- Repeal or amendment -- Record. Upon the adoption of a proposition to repeal or amend an ordinance initiated by petition, the city clerk shall write upon the margin of the record of the ordinance "repealed (or amended) by ordinance No ," or "repealed (or amended) by vote of the people " [1965 c 7 § 35 17 360 Prior 1911 c 116 § 21, part, RRS § 9110, part http / /www leg wa gov/RCW /index cfm ?f iseaction= Section &Section =35 17 360 &printver 4/23/2004 Karen Flynn Kitsap County Auditor - Elections & Voter Registration NINEW 1026 Sidney Avenue, Suite 175 • Port Orchard, Washington 98366 -4678 Telephone (360) 337 -7128 • Facsunile (360) 337 -5769 Add Anwoola Financial Services Manager Jul 1 2004 Winnie Flores -Logan Y Chief Deputy Auditor City of Bremerton Attn Paula Johnston 239 Fourth Street Bremerton WA 98337 Dear Paula Johnston In preparation for the fall elections, enclosed is your copy of the Election Guidelines for 2004 Filing week begins July 26 and ends July 31" Offices open for election, as of this writing, are listed on page 14 thru page 15 We are pleased to advise you that our office will be producing a Local Voters' Pamphlet for the 2004 Primary and General Elections as well as an online Local Voters' Guide Anyjunsdiction with a measure on the ballot is included The intent of the Local Voters' Pamphlet is to provide citizens of Kitsap County with informative and objective information regarding ballot measures Local Voters' Pamphlets are distributed to each household approximately twenty days prior to the election The costs associated with publication of the Local Voters' Pamphlet are prorated among all districts in the same manner as other election costs This notification to all jurisdictions of publication of a Local Voters' Pamphlet is pursuant to RCW 29A 32 220 If your district is planning to run any ballot measures in the year 2004, please remember to formally appoint committees to prepare the appropriate statements No later than 45 days prior to the date of the election, you will need to appoint one committee advocating the voters' approval of the measure and one committee advocating the voters' refection of the measure If you have any elections questions, please feel free to call Suzanne Boltz at (360) 337 -7128, (253) 851 -4147 from Olalla or (206) 842 -2061 from Bainbridge Island Since ly, N FLYNN Kitsap County Auditor Enclosure Administration Accounts Payable Payroll Vehicle Licensing Public Records (360) 337.7129 (360) 337 -7122 (360) 337 -7123 (360) 337 -4440 (360) 337 -4935 Fax 3374645 Fax 337 -7016 Fax 337 -7016 Fax 337 -4645 Fax 337 -4645 Toll Free from Olalla 851 -4147 • Bainbridge Island 842 -2061 RECEIVkD OFFICE OF CITY CLERK DAME k/ga TIME_ July 12, 2004 MRAITME Ms Paula Johnston, City Clerk City of Bremerton 239 - 4th Street Bremerton, Wa 98337 RE INITIATIVE #101 SIGNATURES Dear Ms. Johnston: We are delivering to you, in accordance with instructions from the City Attorney, Mr Roger Lubovich, with this letter, initiatives regarding any proposal to build a transit tunnel in downtown Bremerton. The petitions contain 3,125 (THREE THOUSAND ONE HUNDRED TWENTY FIVE) signatures, which appears to be more than the number necessary to place this initiative on the November 2, 2004 ballot. It is requested that you acknowledge receipt by your official date stamp on our photocopied set We trust that you and your office will keep the names of the signatures on the initiatives at the highest degree of confidentiality and they will not be available to anyone except you as the City Clerk and the City of Bremerton Attorney, Mr. Roger Lubovich before submitting them to the County Elections Office. Very truly yours, CATT 1116r e I u vo- 11 WaAIA �� 13 2! �Z -0 aa-9, - 7 9, Z z -17A A V24 JP i 1 V Qr- 35.17.200 Legislative —A ro riations of move . thereof initiati p s s on the t o the exa mina t ion of people of certification tification No money shall be appropriated except by ordinance and the ordinance proposed thereby, shall apply to a referendu every such ordinance complete in the form: in which it is petition and to the ordinance sought to be defeated thereby , finally passed shall remain on file with the city clerk for [1965 c 7 § 35 17 250 Prior 1911 c 116 § 22 public inspection at least one week before final passage, § 9111, part] ' part, RRS i= ' [1965 c 7 § 35 17 200 Prior 1911 c 116 § 16, part, RRS § 9105, part,] „ 35.17.260 Legislative — Ordinances by initiative { 35.17.210 Le petition. Ordinances may be, initiated by petition of regis- gislative— Street improvements. Every tered voters of the city filed with the commission he ordinance or resolution ordering any street improvement or petition accompanying the proposed ordinance as signed If the by sewer complete in the form in which it is finally passed shall the registered voters in the city equal in number to twenty- remain on file with the city clerk for public 'inspection at five percent of the votes cast for all candidates for ma or at y least one week before final passage [1965 c 7 § 35 17 210 the last preceding city election, and if it contains a request Prior 1911 c 116 § 16, part, RRS § 9105, part ] that, unless'passed by the commission, the ordinance be � submitted to a vote of the registered voters of the city, the # 35.17.220 Le Franchises — .Referendum. commission shall either 1 No franchise or right to occupy or use the streets, highways, (1) Pass the proposed ordinance without alteration bridges or other public places shall be granted, renewed, or within twenty days after the county auditor's certificate of extended except by ordinance and every such ordinance sufficiency has been received by the commission, or complete in the form in which it is finally passed shall ( Immediately after the county auditor's certificate of remain on file with the city clerk for at least one week sufficiency for the petition is received, cause to be called a before final passage and if the franchise or grant is for special election to be held on the next election date, as interurban or street railways, gas or water works, electric provided in RCW 29 13 020, that occurs not less than forty - hght or power plants, heating plants, telegraph or telephone five days thereafter, for submission of the proposed ordi- systems .or other public service utilities, the ordinance must nance without alteration, to a vote of the people unless a be submitted to a vote of the people at a general or special general election will occur within ninety days, in which election and approved by a majority of those voting thereon event submission must be made on the general election [1965 c 7 § 35 17 220 Prior 1911 c 116 § 16, part, RRS ballot [1996 c 286 § 4, 1965 c 7 § 35 17 260 Prior 1911 § 9105, part ] c 116 § 21, part, RRS § 9110, part ] [Title 35 RCW —page 481 (2002 Ed) 14 -39 ®� r 15 16 17 -7 18 19 MAIL COMPLETED PETITIONS TO: C F C C Citizens For Common Cents, 25227 Reath Road, Kent, Washington 98032 Call 253 -941 -9869 or 253- 859 -5286 or Fax 253- 856 -0383