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HomeMy WebLinkAbout10/03/2012 AGENDA CITY COUNCIL 345 6th Street, Suite 600, Bremerton, WA 98337 ❑ Phone (360) 473 -5280 ** *AMENDED * ** OCTOBER 3, 2012 CITY COUNCIL MEETING AGENDA 1 BRIEFING 5 00 — 5 30 P M in COUNCIL CONFERENCE ROOM 603 A General Council Business 2 CALL TO ORDER 5 30 P M in FIRST FLOOR CHAMBERS A Pledge of Allegiance B Invocation 3 PUBLIC RECOGNITION 4 MAYOR'S REPORT 5 CONSENT AGENDA A Claims & Check Register B Minutes of Meeting — September 19, 2012 C Minutes of Study Session — September 26, 2012 D Purchase of three (3) Life -Pak Cardiac Monitor /Defibrillators from Physio- Control, Inc 6 PUBLIC HEARING A Resolution No 3180 approving the amended Shoreline Master Program to the Washington State Department of Ecology 7 GENERAL BUSINESS A Resolution No 3181 authorizing a sole source contract with Columbia Hospitality, Inc for management of the Gold Mountain Golf Club B Change Order No 1 to Talbot Excavating for Site Final Restoration at former Chevron Property 8 COUNCIL MEMBER REPORTS 9 EXECUTIVE SESSION — 25- minutes to discuss "Potential and Pending Litigation" per RCW 42 30 110 (1)(1) (Action is anticipated ) 10 ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING ® Amencans with Disabilities Act (ADA) accommodations provided upon request Those requinng special accommodations please contact the City Cleric at (360) 473 -5323 by noon on the day preceding the Meeting BREMERTON CITY COUNCIL MEETING SPEAKERS LIST "Now that the Election Season is here, please be aware that per the Bremerton City Council Rules & Procedures, discussion of ballot issues is prohibited after the issue has qualified for the ballot; and all announcements or advertising concerning candidates is also prohibited..." PLEASE PRINT YOUR NAME BELOW IF YOU WISH YOUR COMMENTS TO BE INCLUDED IN THE RECORD W (�,Ilee� Ljfn�cl� pA -�� ��L= S v ✓� /3RiEMLR i C�mPj r4- �r REQUESTS FOR INFORMATION MUST BE SUBMITTED IN WRITING TO THE CLERK THANK YOU AGENDA BILL CITY OF BREMERTON 6A CITY COUNCIL ■• eeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeeeee SUBJECT: Claims & Check Register Study Session Date COUNCIL MEETING Date October 3, 2012 Department Financial Services Presenter Cathy Johnson Phone 473 -5296 SUMMARY: Consent Agenda item Approval of checks and electronic fund transfers ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount) APPROVALS: DEPARTMENT DIRECTOR CITY ATTORNEY FINANCE DIRECTOR MAYOR RECOMMENDED MOTION: 1) Check #'s 350218 through 350423 and EFT's 12183 through 12231 in the amount of $2,296,547 48 2) Regular Payroll for the pay period ending September 30, 2012 in the amount of $672,9 25 3) Retiree Payroll for the pay period ending September 30, 2012 in the amount of $63,187 STUDY SESSION ACTION: ® Consent Agenda ❑ General Business ❑ Public Hearing COUNCIL PRESIDENT r f , COUNCIL ACTION: 4pprove ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 1/4/12 AGENDA BILL CITY OF BREMERTON 'CITY COUNCIL u55 SUBJECT: City Council Minutes for COUNCIL MEETING Date Department City Council Presenter Jim McDonald Council President Phone. (360) 473 -5280 SUMMARY: Attached is a summary of the City Council Meeting ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount) N/A APPROVALS: N/A RECOMMENDED MOTION: Move to approve the Consent Agenda as presented STUDY SESSION ACTION: x Consent Agenda ❑ General Business ❑ Public Hearing COUNCIL PRESIDENT- COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 4/18/2011 DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, September 19, 2012 The weekly meeting of the City Council of the City of Bremerton was called to order Wednesday, September 19, 2012, at 5 00 PM in Council Conference Room 603 of the NORM DICKS GOVERNMENT CENTER, 345 6 th Street, Bremerton, Washington, with Council President Jim McDonald presiding. Council Members present were Nick Wofford, Faye Flemister, Greg Wheeler, Roy Runyon, Adam Brockus, and Leslie Daugs Council Members Carol Arends and Eric Younger were absent Also present were City Attorney Roger Lubovich; City Clerk Shannon Conn, and Council Assistant Christine Grerner A COUNCIL BRIEFING was held to discuss General Council Business at 5 00 PM in the Council Conference Room At 5 30 PM the meeting moved to the Meeting Chambers The Pledge of Allegiance was led by Council Member Leslie Daugs followed by the invocation provided by Reverend Ron Anderson of Manette Community Church PUBLIC RECOGNITION Todd Best provided comments in support of the proposal to lower the Mayor's salary Julia Zander announced that the Kitsap Community & Agricultural Alliance would be presenting the 4 Annual "Kitsap Grown Harvest Dmnei" on Sunday, October 28 from 6 00 to 8.00 PM at the Olympic College Bremer Student Center Taylor Niemv announced that the "Give a Flower to a Strange" event will be held downtown on Sunday, September 23, and provided comments about grievances as laid out in the "Occupy Wall Street" movement Robert Parker believed that although a review of the Mayor's salary is a politically difficult, it is the responsible thing to do Jerry McDonald provided an update on cooperative marketing efforts being done through the Seattle Visitor & Convention Bureau and Washington State Ferries. Vern LaPrath hoped that other salaries would be adjusted and that money put back into the General Fund, and thanked the unknown parties for cleaning up properties in East Bremerton MAYOR'S REPORT Mayor Patty Lent. . • Responded to comments made by Mr LaPrath by clarifying that the clean -up of those properties was done by volunteers during the Beautify Bremerton event last Saturday, • Introduced Coach Frankie Lee and team members Gwen Barry Kalev Sit Kennedy Lee and Bethany Mayer of the Women's Roller Hockey Team "2012 Hurricane Ladies" who will be representing the U S in the upcoming World Championships from November 10 through 17 in Brazil, • Announced the "National POW /MIA Recognition Day' will be held in front of the Keyport Undersea Naval Museum on Friday, September 21 at 7 45 AM, and the "Stand Down for Veterans and their Families" event will be held at Sheridan Park Community Center on Saturday, September 22 from 10 30 AM to 2.30 PM, • Proclaimed the Month of September 2012 as "Walk to End Alzheimer's Month ", and presented the proclamation to Bob Roy Executive Director for the Western Washington Alzheimer's Society who invited the community to participate in the "Walk to End Alzheimer's" on Saturday, September 22 at 10 00 AM beginning at Evergreen Rotary Park, City Council Reg Mtg Minutes Wednesday, September 19, 2012 Page 2 of 4 • Looked forward to participating in the "Dedication Ceremony for the Tomb of the Unknown Soldier" at Saturday, September 29 at 1 00 PM at Ivy Green Cemetery, thanked Todd Best for all of his efforts, and invited him to share before and after pictures of the work done on the site, and proclaimed September 29, 2012 as "National Public Lands Day', and • Invited Council Members to attend the Ground - breaking Ceremony for the Youth Wellness Center on October 22 for 3 00 to 5:00 PM CONSENT AGENDA 5A Check Numbers 350001 through 350217 and EFT -12147 through EFT -12182 in the amount of $2,176,518.09, and Regular Payroll for the pay period ending September 15, 2012 in the amount of $681,682 56 513 Minutes of Meeting — September 5, 2012 5C Minutes of Study Session — September 12, 2012 5D Bremerton Kitsap Access Television (BKAT) Service Contract with City of Bainbridge Island for 5 -Year Term (2013 - 2017) 5E Goods and Services Agreement with H D. Fowler Company for purchase of Water System Pressure Regulating Valve System Todd Best expressed concerns about contracts that may have longer terms than a mayor's term, and believed that a solution would be to have a shorter term with an option to extend the agreement 06:15:03 M /S /C /U (Flemister /Runyon) Move to approve the CONSENT AGENDA as presented GENERAL BUSINESS 6A — PROFESSIONAL SERVICES AGREEMENT WITH CROSS, LACROSS & MURPHY PLLC FOR PUBLIC DEFENSE SERVICES Dawn Nelson Municipal Court Administrator, explained that the current provider of public defense services for Bremerton Municipal Court submitted their notice of intent to withdraw form their contract with the City earlier this year. Five firms responded to a request for proposal for public defense services A panel interviewed all five firms and forwarded their unanimous recommendation to the Mayor, who agreed with the panel and chose Cross, LaCross, & Murphy, PLLC to enter into a contract for professional services for legal representation of indigent persons This contract will begin on November 1, 2012 There were no comments from the public 06:17:28 Motion was made by Runyon, and seconded by Brockus . Comments and questions were provided by Runyon, Wheeler, Daugs, Wofford, and responses were provided by Ms Corm and Ms Nelson. 06:23:45 M /S /C /U (Runyon /Brockus) Move to approve the professional services agreement for public defense services with Cross, LaCross & Murphy, PLLC, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented City Council Reg Mtg Minutes Wednesday, September 19, 2012 'Page 3 of 4 COUNCIL MEMBER REPORTS Faye Flemister was saddened at the passing of Roy McInnis, and extended condolences to his family Greq Wheeler announced a Centennial Anniversary for Ebenezer A M E Church would be celebrated October 18 to 21, including the "Formal Dinner Dance & Silent Auction Gala' on October 19 at 7 00 PM at the Kitsap Conference Center, and was pleased to report that his daughter Lucky would be competing in the US Figure Skating "National Solo Dance Championship" in Colorado Springs, along with other skaters from the Bremerton Ice Arena Roy Runyon welcomed "Mobster Mike's Restaurant & Bar" to downtown Bremerton, reminded everyone about the Empty Bowl Fundraiser to benefit the Bremerton Food Line beginning at 2 00 PM on Saturday at Our Saviour's Lutheran Church that would include an auction for a bowl made by Nathan Adnan„ and announced he would be hosting a District 4 Meeting to discuss a proposal to reduce the Mayor's Salary on Tuesday, September 25 from 5 to 6 PM in the First Floor Chambers of the Norm Dicks Government Center Adam Brockus enjoyed Manette Fest, welcomed a new Thai restaurant to the neighborhood, and encouraged people to see a movie at the new theatre which will soon be serving beer and wine in the lounge Leslie Daugs encouraged everyone to attend three worthwhile upcoming events including the Kitsap Habitat for Humanity "Raise the Roof' Fundraising Dinner this Saturday, September 22 beginning at 6 00 PM at the Kitsap Conference Center, the Dedication Ceremony at the Tomb of the Unknown Soldier on Saturday, September 29 at 1 00 PM at Ivy Green Cemetery, and the "Harvest Dinner" scheduled on Sunday, October 28 from 6 00 to 8 00 PM in the Bremer Student Center at Olympic College Jim McDonald addressed comments regarding contracts signed by the Mayor's while in office, and emphasized that sometimes longer terms on contracts allow for budget forecasting and some may have 'but' clauses so that contracts may be ended. He d announced that the Council would recess for an Executive Session and action is anticipated 8A — EXECUTIVE SESSION — 20- minutes to discuss "Potential Litigation" per RCW 42 30110 (1)(i) The Council recessed from 6.35 to 6.55 PM . 06:56:20 M/S /C /U (Wofford /Runyon) Move to authorize the City Attorney to file lawsuits and /or take code enforcement action regarding properties at 600 National Avenue, Bremerton, Washington and 1926 North Callow Avenue, Bremerton, Washington With no further business, President McDonald adjourned the Council Meeting at 6 57 PM Prepared and Submitted by CHRISTINE GR NIER Council Assistant City Council Reg Mtg Minutes Wednesday, September 19, 2012 Page 4 of 4 Attest. SHANNON CORK City Clerk JIM McDONALD, City Council President JM SC Is cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL 5C ■■ eeeeeeeeeeeeeeeeeeeseeeseeee � eeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeaeeeeeeee eeseeee SUBJECT: City Council Minutes for COUNCIL MEETING Date OL-�0 6ey- 3 , � p Department. City Council S jQ�. lo �o, C Presenter Jim McDonald ff �� Council President Phone. (360) 473 -5280 SUMMARY: Attached is a summary of the City Council Meeting ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount) N/A APPROVALS: N/A RECOMMENDED MOTION: Move to approve the Consent Agenda as presented STUDY SESSION ACTION: ❑ Consent Agenda ❑ General Business ❑ Public Hearing COUNCIL PRESIDENT Q C? COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 4/1812011 DIGITAL RECORDING CITY COUNCIL STUDY SESSION MINUTES September 26, 2012 A Study Session of the City Council of the City of Bremerton was called to order in the City Council Conference Room 603, of the NORM DICKS GOVERNMENT CENTER, 345 6th Street, Bremerton, Washington, Wednesday, September 26, 2012, at 5 00 PM, with Council President Jim McDonald presiding Council Members present were Nick Wofford, Eric Younger, Faye Flemister, Greg Wheeler, Roy Runyon, Adam Brockus, and Leslie Daugs Council Member Carol Arends was absent Christine Grenier, Council Assistant was present to provide staff support President McDonald emphasized that the Study Session was open to the public but there would be no opportunities for comment A. NO PRESENTATION PLANNED - The following items are budgeted items or have been reviewed by the appropriate Council Committee 1 Purchase of three (3) Life -Pak Cardiac Monitor /Defibrillators from Physio- Control, Inc — Fire Chief Al Duke Consent Agenda B FULL DISCUSSION ITEMS 2 Risk Management Briefing — Thelma Swem, Risk Manager (Information only) 3 Proposed public hearing and resolution approving the amended Shoreline Master Program to the Washington State Department of Ecology — Nicole Floyd, City Planner II, Department of Community Development Public Hearing 4 Interlocal Agreement with Kitsap Transit for Signal System Upgrades to the Signal Preemption System — Gunnar Fridriksson, Traffic Engineer, Department of Public Works Item delayed until October 10... 5. Public Works Department Briefing — Chal Martin, Director of Public Works (Information only) C GENERAL COUNCIL BUSINESS Council Committee Chair Reports were provided, and General Council Business was briefly discussed With no further business, the Council Study Session was adjourned at 6 55 PM Prepared and Submitted by w CH ISTIN GRENIER Council Assistant Attest SHANNON CORIN, City Clerk JIM McDONALD, City Council President JM SC Is cg AGENDA BILL 45D CITY OF BREMERTON CITY COUNCIL ■■ rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr SUBJECT: Authorize the purchase of three Study Session Date September 26, 2012 (3) Life -Pak 15 cardiac monitor / defibnillators COUNCIL MEETING Date October 3, 2012 from Physio- Control, Inc Department Fire Presenter Al Duke, Fire Chief Phone 473 -5380 SUMMARY: On August 20, 2012 the Fire Department received three quotes from the Request for Proposal, one from Enerspect Medical Solutions, one from Zoll Medical Corporation and one from Physio- Control, Inc On August 24, 2012 all three made companies made separate presentations demonstrating and answering questions about their products to staff and employees The Fire Department would propose moving forward with the purchase of three (3) Life -Pak cardiac monitor /defibrillators from Physio- Control, Inc ATTACHMENTS: 1 Quotes from Physio- Control, Inc, 2 Evaluation score sheets FISCAL IMPACTS (Include Budgeted Amount) The department received a Fire Act Grant in the amount of $108,042 of which the Fire Department is required to participate 10% The total amount is approved in the Fire Department budget APPROVALS: DEPARTMENT DIRECTOR CITY ATTORNEY FINANCE DIRECTOR MAYOR RECOMMENDED MOTION: Move to approve the purchase of three (3) Life -Pak 15 cardiac monitor /defibrillators from Physio- Control Inc, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented STUDY SESSION ACTION: )Consent Agenda ❑ General Business ❑ Public Hearing COUNCIL PRESIDENT C COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/2011 Physio- Control, Inc 11811 Willows Road NE I P 0 Box 97023 Redmond, WA 98073 -9723 U S A www physio- control com CONTROL medtronic com tel 800 442 1142 fax 800 732 0956 To Bremerton Fire Department Quote# 1- 237061963 911 Park Ave Bremerton, WA 98337 Rev# 3 Quote Date 08129/2012 Sales Consultant Paula Park 800 -442 -1142 x 72897 FOB Redmond, WA Terms All quotes subject to credit approval and the following terms & conditions Trade -In 3 LP12,SN's, 30903376 Exp Date 11/27/2012 30845357 30845355 30845353 Contract None Line Catalog Description Qty Price Unit Disc Trade-In Unit Price Ext Tota 1 99577 -001219 - LP15 MONITOR/DEFIB, CPR, 3 $37,84500 $5,67675 $5,00000 $27,16825 $81,50475 Pace, to 360/, SPO21CO1MetHb,12L GL, NIBP, CO2, Trend, BT, TMP THE LIFEPAK 15 IS AN ADAPTIV BIPHASIC FULLY ESCALATING (TO 360 JOULES) MULTI - PARAMETER MONITOR/DEFIBRILLATOR SHIP KIT 41577-000109 INCLUDED HARD PADDLES, BATTERIES AND CARRYING CASE NOT INCLUDED 2 21330 -001176 - LI -ION BATTERY 5 7 AMP 9 $40000 $6000 $000 $34000 $3,06000 HOUR CAPACITY RECHARGEABLE LITHIUM -ION, WITH FUEL GAUGE 3 11140 -000052 - LP 15 ADAPTER- REDI- 2 $17500 $2625 $000 $14875 $29750 CHARGE BATTERY CHARGER LP 15 ADAPTER RED[ -CHARGE BATTERY CHARGER 4 11996 -000093 - ELECT ASSY- PED,QC 3 $4500 $675 $000 $3825 $11475 RTS,WORLDWIDE FOR USE ONLY ON MANUAL DEFIBRILLATOR/MONITORS 5 11171 -000049 - RAINBOW DCI ADT 3 $77300 $11595 $000 $65705 $1,97115 REUSABLE SENSOR, REF 2696 RAINBOW DCI ADT REUSABLE SENSOR, REF 2696 6 11577 - 000002 - KIT - CARRY BAG, MAIN BAG 3 $26800 $4020 $000 $22780 $68340 ACCESSORY 11577 - 000002 LP15 KIT CRY BAG Includes shoulder strap 11577- 000001 7 11220 - 000028 -Top Pouch 3 $4800 $720 $000 $4080 $122 40 Storage for sensors and electrodes Insert in place of standard paddles 8 11260- 000039 - KIT - CARRY BAG, REAR 3 $6900 $1035 $000 $5865 $17595 POUCH KIT - CARRY BAG, REAR POUCH 1 Quote# 1- 237061963 Rev# 3 Quote Products (con6nued) Quote Date 08129/2012 Line Catalog #/Description Q SUB TOTAL $87,92990 ESTIMATED TAX $7,56197 ESTIMATED SHIP 8, HANDLING $18500 GRAND TOTAL $95,676.87 Trade -in Detail Product Qty Una Value Total Value Pricing Summary Totals List Price $121,09400 Trade -ins -$15,00000 Cash Discounts -$18,16410 Tax + S&H +$7,74697 GRAND TOTAL FOR THIS QUOTE $95,676.87 TO PLACEAN ORDER, PLEASE FAX A COPY OF THE QUOTEAND PURCHASE ORDER TO: # 800 - 732 -0956, ATTN. REP SUPPORT PHYSIO - CONTROL, INC REQUIRES WRITTEN CUSTOMER APPROVAL (AUTHORIZED SIGNATURE) VERIFICATION OF THIS ORDER A PURCHASE ORDER IS REQUIRED ON ALL ORDERS $10,000 OR GREATER BEFORE NAME APPLICABLE FREIGHT AND TAXES THE UNDERSIGNED IS AUTHORIZED TO ACCEPT THIS ORDER IN ACCORDANCE TITLE WITH THE TERMS AND PRICES DENOTED HEREIN SIGN TO THE RIGHT DATE Ref Code MA/00589601 /1- 3NQFFZ Notes. Taxes, shipping and handling fees are estimates only and are subject to change at the time of order Shipping and handling applies to ground transport only Physio- Control will assess a $10 handling fee on any order less than $200 00 Above pricing valid only if all items in quote are purchased (optional items not required) To receive a trade -in credit, Buyer agrees to return the trade -in device(s) within 30 days of receipt of the replacement device(s) to Physio - Control's place of business or to an authorized Physio- Control representative Physio- Control will provide instructions for returning the devices) and will pay for the associated shipping cost In the event that trade -in device(s) are not received by Physio - Control within the 30-day window, Buyer acknowledges that this quote shall constitute a purchase order and agrees to be invoiced for the amount of the trade -in discount Invoice shall be payable upon receipt Items listed above at no change are included as part of a package discount that involves the purchase of a bundle of items Buyer is solely responsible for appropriately allocating the discount extended on the bundle when fulfilling any reporting obligations it might have If Buyer is ordering service, Buyer affirms reading and accepts the terms of the Physio - Control, Inc Technical Service Support Agreement which Is available from your sales representative or httpJ /www physio- control com /uploadedFdes /products /sennce- plans/TechrncalServiceAgreement pdf 2 j � r � ao94 bA BREMERTON FIRE DEPARTMENT ` A / /5"n DWke / //, Pule Chief Ter 360 -473 -5381 Al duke@ci bremerton wa.us fax 360 473 -5397 611 Park Avenue , Bremerton, WA 98337 Date September 17, 2012 To City Council Members From Fire Chief Duke SUBJECT Purchase of Cardiac Monitor /Defibri llators After careful evaluation and deliberation we are recommending purchase of three Physio- Control LifePak 15 (LifePak 15), monitor- defibrillators These new monitors are to replace the current LifePak 12's and will be purchased with money appropriated from the Assistance to Firefighters Grant Program In reaching this decision we used a standard set of considerations, adapted from our Request for Proposal and assigned numerical scores, to guide our deliberation We also included intangible considerations from the presentations made including accessory costs, "intuitiveness" (therapy control organization and display), usability and user interface in our evaluation All of the monitor - defibrillators met the general requirements which included Food and Drug Administration (F D A) approval The Philips MRx (Enerspect Medical Solutions) was the least expensive of the three monitor - defibrillators evaluated However, it also had the greatest number of "exceptions" (deviations from our feature specifications) than the other monitor - defibrillators Importantly, the Philips submission did not include an intrinsic carbon monoxide monitoring function Further, and most importantly, South Kitsap Fire and Rescue (users of Philips MRx) personnel interviewed, reported recurrent and ongoing problems with device "oversensitivity" when monitoring and /or analyzing This necessitates continual reanalysis or, in some instances, ceasing vehicle movement This phenomenon has been observed by our personnel when operating with P S N S F D aid units using this device Because the Phillips MRx did not meet specifications, they unit will not be considered • Page 2 September 19, 2012 The Zoll X -senes was the lightest and incorporated many innovations However, we considered the Zoll the most urnntuitive (requiring operating personnel to search for operational controls) The printer was also poorly conceived, designed and configured and would print into the device's side carrying case pouch We were also concerned about Zoll's inability to perform on -site service and maintenance The Physio- Control LifePak 15 is the second lowest priced from the three proposals, but lowest for the two qualified proposals The LifePak 15 has incorporated many improvements over our present LifePak 12's including the internal interpretive algorithm and segment trend monitoring We also have a long- standing relationship with Physio- Control (Redmond, WA) Although the device manufacturers offered on -site training we would still anticipate personnel overtime costs for transitional training particularly if the controls and device features were distinctly different The familiarity (system changes and related costs related to implementation) of the LifePak 15 means there would be reduced personnel and training costs Also, Physio- Control's accessories and consumables (end tidal carbon dioxide filter - lines, pacer /defibrillator pads, electrodes, recording paper ) are non- proprietary (generic) and available from general medical supply distributors (and we could continue using our current inventory of monitor - defibrillator related consumable items) We also have one Lithium battery charger (and 4 Lithium Ion batteries) in use with our LifePak 12's that are compatible with the LifePak 15 In conclusion taking into account all of the considerations I recommend the purchase of three Physio- Control LifePak 15's CARDIAC MONITOR/DEFIBRILLATOR SCORE SHEET FROM REQUEST FOR PROPOSAL ITEM # PHILLIPS ZOLL PHYSIO 1 General Requirements Yes Yes Yes 2 Components 21 Light weight 132 1 117 2 189 1 212 Easy replace battenes Yes 2 1 Yes 1 Yes 1 213 Battery Indicator Yes 1 Yes 1 Yes 1 214 Carrying case Yes 2+ 1 1 Yes 1 Yes 1 215 Sunlight/darkness Yes 1 Yes 1 Yes 1 216 Monitor demensions 8 4 Diag 33 8 Total 1 6 5 Diag 2 8 4 Diag 1 134X83X136 1 89X104X79 2 125X158X91 1 Resolution 640 X 480 1 640 X 480 1 640 X 480 1 2.2 Analysis /Diagnosis /transmission 221 Monitor while diagnosis Yes 1 Yes 1 Yes 1 222 Diagnosis Acute MI Yes 1 Yes 1 Yes 1 223 Printing 12 lead Yes 1 Yes 1 Yes 1 224 Transmit 12 lead Yes 1 Yes 1 Yes 1 225 Interface with ER Yes 1 Yes 1 Yes 1 2.3 Pulse Oximetry 231 Incorporate pulse oximetry Yes 1 Yes 1 Yes 1 232 Monitor Carbon Monoxide Exception -1 Yes 1 Yes 1 233 Measure SpO2 Yes 1 Yes 1 Yes 1 234 Ad ustable Alarm Yes 1 Yes 1 Yes 1 235 Cables and Reusable Sensors Yes 1 Yes 1 Yes 2.4 Monitorin 241 Multiple lead /Cable Yes 1 Yes 1 Yes 1 242 Display HR, B/P and Vital Signs Yes 1 Yes 1 Yes 1 243 Heart Rate between 0 -300 Exception -1 Yes 1 Exception -1 244 Alert/Alarm for Shockable Rhythm Yes 1 Yes 1 Yes 1 2.5 Defibrillator 251 Portable DC powered Yes 1 Yes 1 Yes 1 252 Defibrilate using Biphasic Waveform Yes 1 Yes 1 Yes 1 253 Defibrillate thru cable-electrodes Yes 1 Yes 1 Yes 1 254 Defribrdlator Cables 3= 2 +1 Yes 1 Yes 1 Yes 1 255 Synchronized Defibrillation Yes 1 Yes 1 Yes 1 256 Wide Range of Energy Settings Yes 1 Yes 1 Yes 1 257 Charge time no longer than 10 seconds Yes 1 No -1 Yes 1 2.6 Recorder 261 Dela from display to ECG < 15 seconds Yes 1 Yes 1 Yes 1 262 Configure Manual or Automatic Printing Yes 1 Yes 1 Yes 1 263 Print Code Summary Yes 1 Yes 1 Yes 1 2.7 Transcutaneous Pacing 271 Demand and Non - demand Pacing Yes 1 Yes 1 Yes 1 272 Pacing Pulses at 40 -170 bpm 30 -180 1 Yes 1 Yes 1 273 Pacing Output not to exceed +/- 15% Yes 1 Yes 1 Yes 1 274 Pacing Output current 0 -200mA Exception -1 Yes 1 Yes 1 2.8 Capnography 281 Incorporate Capnography Yes 1 Yes 1 Yes 1 282 Provide end title CO2 on Screen Yes 1 Yes 1 Yes 1 283 Necessary Cables and Attachments Yes 1 Yes 1 Yes 1 284 End Title CO2 Value Print Out Yes 1 Yes 1 Yes 1 285 Separate Sensor and Cable Yes 1 Yes 1 Yes 1 286 Measure EtCO2 range 0 -99 HG Yes 1 Yes 1 Yes 1 287 Displa Respiratory rate 0 -99 Breaths Yes 1 Yes 1 Yes 1 288 Initiation Rate Not to Exceed 20 seconds Yes 1 Yes 1 Exception -1 2.9 Noninvasive Blood Pressure (N.I.B.P.) 291 Measure Systolic/Diastolic & Mean Art Yes 1 Yes 1 Yes 1 292 Accurate) Obtain B/P in 30 Seconds Yes 1 Yes 1 Yes 1 293 Automatic Reoccurring Measurements Yes 1 Yes 1 Yes 1 2.10 Battery Charging System 2 10 1 Lithium -Ion Batteries Yes - 2 1 Yes 1 Yes 1 , 2102 Batte ry guage/capacity on screen Yes 1 Yes 1 Yes 1 2 10 3 Station Battery Support/Charging system Yes 1 Yes 1 Yes 1 2 10 4 Test Defibrillator Dischagre Energy Yes 1 Yes 1 Yes 1 2 10 5 Battery replacement and Disposal progran Yes 1 Yes -12 1 Yes 1 2106 Specific Data on Batteries Yes 1 Yes 1 Yes 1 2.11 Data Management 211 1 Store Data- Events, Contmous ECG Yes 1 Yes 1 Yes 1 2 11 2 Transmit Data with Confirmation Yes 1 Yes 1 Yes 1 2 113 Data Received by FAX, PDA or computor Yes 1 Yes 1 Yes 1 2 114 Means to Manage Archived Records Yes 1 Yes 1 Yes 1 2115 Store the following reports 2 11 5a Initial ECG Yes 1 Yes 1 Yes 1 2 11 5b Code Summary Yes 1 Yes 1 Yes 1 2 11 5c Vital Signs every 5 Minutes Yes 1 Yes 1 Yes 1 2 11 5d Trend Summary Yes 1 Yes 1 Yes 1 2 11 5e Vital Sign Logs Yes 1 Yes 1 Yes 1 2 11 5f Snapshot - 8 Second of Transmitted ECG Yes 1 Yes 1 Yes 1 3.0 Personnel Training 31 24 Hours of Technical Support Yes 1 Yes 1 Yes 1 31 1 Provide Training Materials and Videos Yes 1 Yes 1 Yes 1 312 On -site Training 3 -8 Hour Days Yes 1 Yes 1 Yes 1 4.0 Additional Features /Equipment 41 Price List 0 Yes 1 Yes 1 41 1 Measure and Display SpCO Values Exception -1 Yes 1 Yes 1 5.0 Warrenty 51 Provide Loaner Machine 0 Yes 1 Yes 1 51 1 75% of Warrenty Work on Site and 0 Exception -1 Yes 1 14 Day Turn Around Yes 1 Yes 1 Yes 1 512 Provide Extended Warrenty & Annual Maintenance Options Yes 1 Yes 1 Yes 1 6.0 Accessories Provide Pnce List for Accessories Yes 1 Yes 1 Yes 1 7.0 Delivery Notify Delivery Date 0 Yes 1 Yes 1 8.0 Explanation and Variances Yes 1 Yes 1 9.0 'Other Requirements 91 New Additions not Available for 1 Year Yes 1 Yes 1 Yes 1 92 Trade in Value Towards Upgrade 5 -Year Yes 1 Exception -1 Yes 1 9 3 Two temperature Monitoring Channels Yes 1 Yes 1 Yes 1 Price $ 83,791.59 3 $ 109 689.68 1 $ 95,676.87 2 SCORE FROM REQUEST FOR PROPOSAL 68 76 75 Best + 2 Yes= 1 No = 0 Exceptions = -1 Phillips did not meet spec - two components were not part of the device, they were separate devices Other factors considered during presentations: Preventive Maintenance X2 Year $4,60200 $1,48500 $3,09900 Extended Warrenty - 3 Year $9,58500 $8,19000 On Site No on -site repair On Site mad in only Office Location Bothel - Portland HQ Spokane - Mass Redmond Screen Protection Yes Yes Yes Coner Re- enforcement Use pouches Uses pouches Yes + Cases - porous vs vinyl Vinyl Vinyl Washable ECG Cables 12 Lead $31275 $34850 $32400 Cable Connections In Pouches In Pouches Out front Pacer /Defib Pads $2925 $3700 ECG Patches $141 $098 $150 ECG Paper =1 roll $450 $328 $900 ECG Paper Size 75 mm X 80mm X 100mm X 22m Gives ST elevations in all leads ECG goes into pouch Ease of changing paper OK Hard paper in pouch Right in front - OK B/P cuff Disposable $540 $787 $1100 Non- Disposable $2400 $4305 $2700 Battery $30000 $40590 $40000 Battery recharge time 3 hours 4 hours 15 minutes Harrison uses Physio- Control Tamilianty & Training issues lWould need class Would need class Similar to current AGENDA BILL CITY OF BREMERTON (0 CITY COUNCIL ......................................................... ............................... Publ i C �), _ SUBJECT: Resolution No Study Session Date Sept 26, 2012 recommending approval of the amended COUNCIL MEETING Date Oct 3, 2012 Shoreline Master Program to the Department DCD Department of Ecology Presenter Nicole Floyd Phone 360 473 5279 SUMMARY: The proposed resolution recommends approval of the updated Shoreline Master Program to the Department of Ecology who will review the document for consistency with State Guidelines Once Ecology has finished their review, the City Council will have the opportunity to respond to any recommended modifications and adopt the Shoreline Master Program as an Ordinance It is not until both the City and Ecology approve the program that it will go into effect ATTACHMENTS: 1) Resolution No 3180 updating the Shoreline Master Program Exhibits to the Resolution include • Exhibit A — Planning Commission Findings and Conclusions • Exhibit B — Shoreline Master Program and appendices (City Council Draft) • Exhibit C — Council directed amendments to the SMP FISCAL IMPACTS (Include Budgeted Amount) None APPROVALS: DEPARTMENT DIRECTOR CITY ATTORNEY FINANCE DIRECTOR MAYOR i e ,, � RECOMMENDED MOTION: Move to pas esolution No 3l SO recommending approval of the Updated Shoreline Master Program to the Department of Ecology STUDY SESSION ACTION: ❑ Consent Agenda ❑ General Business Public Hearing COUNCIL PRESIDENT il q � 6 COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/2011 RESOLUTION NO. 3160 A RESOLUTION of the City Council of the City of Bremerton, Washington approving the amended Shoreline Master Program The resolution will direct the Department of Community Development to forward the documents comprising the updated Shoreline Master Program to the Washington State Department of Ecology for review and approval WHEREAS, the people of the State of Washington enacted the Shoreline Management Act (RCW 90358) by a vote of the people in 1971; and WHEREAS, RCW 90.58.020 directs local governments developing shoreline master programs to give preference to uses in the shorelines in the following order of preference which- 1) recognize and protect the State -wide interest over local interest; 2) preserve the natural character of the shoreline; 3) result in long -term over short-term benefit; 4) protect the resources and ecology of the shorelines, 5) increase public access to publicly -owned areas of the shorelines, 6) increase recreational opportunities for the public in the shoreline, and 7) provide for any other element as defined in RCW 90 58.100 deemed appropriate or necessary; and WHEREAS, in 2003, The Department of Ecology adopted new rules, pursuant to RCW 90.58 200, which gave procedural and substantive direction to local jurisdictions for updating shoreline uses and regulations, which became effective January 17, 2004; and WHEREAS, The Growth Management ACT (RCW 36.70A.480) adds the goals and policies of the Shoreline Management Act as set forth in RCW 900.58.020 as one of the goals of the Growth Management Act without creating an order of priority; and WHEREAS, the City conducted a comprehensive inventory of the ecological functions and conditions within its shoreline jurisdiction in 2009 to provide a scientific foundation for application of the shoreline environment criteria and assignment of the appropriate shoreline designations; and WHEREAS, the results of this comprehensive inventory are contained in the document entitled, Shoreline Inventory and Characterization, most recently updated in May 2012; and WHEREAS, consistent with the requirements of WAC 173 -26- 186(8)( d), the City conducted an analysis of potential cumulative impacts of reasonably foreseeable future development on shoreline ecological functions and other shoreline functions fostered by the policy goals of the SMA. This analysis is contained in the document entitled, "Shoreline Cumulative Effects Analysis" most recently updated in February 2012, and; WHEREAS, the City has utilized the scientific information from the Inventory and the Cumulative Impact Analysis to draft the proposed SMP Update; and 1 SMPAmendments WHEREAS, consistent with the requirements of WAC I 73- 26- 224(4)(c), the City has conducted a public access analysis entitled, "Shoreline Public Access Inventory", most recently updated in April, 2012. This plan establishes an integrated shoreline public access system that identifies public needs and opportunities to provide public access, and WHEREAS, consistent with the requirements of WAC 173- 26- 186(8)(c) and 173- 26-20 1 (2)(f), a document entitled "Restoration Plan" most recently updated in February, 2012 has been formulated so that the City's master program includes goals, policies and actions for restoration of impaired shoreline ecological functions; and WHEREAS, over the past three years, the City's Planning Commission has reviewed and revised a number of documents, including. the Shoreline Inventory, proposed revisions to shoreline regulations, the Restoration Plan, the Public Access Plan, the Cumulative Effects Analysis, and responded to both governmental agency and public comments, and WHEREAS, the City developed a public participation plan that provided widespread public notice throughout the SMP Update process The City has made a concerted effort to generate public involvement, including holding a public open house, having a booth at the Bremerton Blackberry Festival, sending notice in all residents' utility bills, creating a Citizen Advisory Committee and Technical Advisory Committee, attending monthly coordination meetings with the Technical Advisory Committee, creating a comprehensive and regularly - updated web page devoted to the SMP Update, maintaining a large mailing list in order to keep interested parties informed; holding over 14 workshops and a Public Hearing at the Planning Commission and a series of four televised workshops at the City Council, and WHEREAS, The City issued a complete Planning Commission Draft of the Shoreline Master Program in May of 2012 and considered and responded to government, agency, and public comments and prepared and issued revised Draft Shoreline Master Programs or elements thereof in June 2012; and WHEREAS, the City's Responsible Official issued a Determination of Nonsignificance on the proposed Shoreline Master Program on May 14, 2012 with an appeal deadline of May 29, 2012 No appeals were filed, and WHEREAS, on May 18, 2012, a draft SMP was circulated to the State Agencies for the requisite 60 -day review and comment period. No comments were received; and WHEREAS, the City of Bremerton Planning Commission considered staff's recommendations, received testimony, and formulated a recommendation to forward the amendments for City Council at a duly advertised public hearing on May 29, 2012; and WHEREAS, on September 17, 2012 the public was notified by legal advertisement in the Krtsap Sun of the opportunity to make comment and participate in the public hearing by the City Council; and 2 SMP Amendments WHEREAS, City Council took public testimony from interested parties and considered all written and oral arguments at a duly advertised public hearing for the Shoreline Master Program update on October 3, 2012; and WHEREAS, once the City approves the Shoreline Master Program, it will be sent to the Washington State Department of Ecology for review and approval, a process which may entail further changes and amendments to the documents of the Shoreline Master Program,; and WHEREAS, upon Department of Ecology approval, the City will adopt the Shoreline Master Program by ordinance; and WHEREAS, the City considered and responded to government agency and public comments, NOW THEREFORE, 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 herem in full SECTION Z. The findings and conclusions adopted by the Planning Commission attached hereto as Exhibit A are adopted and incorporated as if set forth fully herem. SECTION 3. The City Council hereby approves and recommends adoption of the Shoreline Master Program, attached hereto as Exhibit B and Exhibit C and subject to Department of Ecology approval. SECTION 4. The City is authorized to make necessary corrections to the Exhibit B including but not limited to; corrections of scriveners or clerical errors, references, numbering of sections or subsections and any reference thereto. SECTION S. After the Department of Ecology completes their review of the Shoreline Master Program the City Council will adopt the program by Ordinance with any changes that the Department of Ecology may provide, if any. Only after said Ordinance is adopted shall the Shoreline Master Program go into effect SECTION 6. Severability If any one or more sections, subsections, or sentence 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; and SECTION 7. Effective Date This resolution shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law PASSED by the City Council of the City of Bremerton, Washington this day of , 2012. JIM McDONALD, Council President 3 SMP Amendments APPROVED AS TO FORM- ATTEST: ROGER A LUBOVICH, City Attorney SHANNON CORIN, City Clerk R \Legal\Legal\Resolutions \Community Development \Shorelme Master Program (2012) doc 4 SW Amendments Exhibit A FINDINGS AND DETERMINATION OF THE CITY OF BREMERTON PLANNING COMMISSION Summary — After almost three years of Planning Commission Workshops, the Planning Commission is recommending the approval of the Shoreline Master Program (SMP) Update for City Council approval The Planning Commission finds that this update addresses Bremerton's unique urban environment and meets the State requirements for the update. The City of Bremerton adopted its first SMP in 1976, with major amendments in 1989 and 1992, with amendments for Downtown Development Standards in 2003 This comprehensive Shoreline Master Program update is an extensive overhaul of the existing SMP intended to incorporate the most accurate and up to date scientific data into the shoreline development regulations. There has been extensive public input throughout the drafting of this code amendment process The SMP and accompanying documents have been reviewed by the Citizen Advisory and Technical Advisory Committee's Once adopted by the City Council the Shoreline Master Program will be reviewed for compliance with State guidelines by the Department of Ecology, who have final adoption authority 1. FINDINGS OF FACT - GENERAL 1. Project Description This comprehensive update to the Shoreline Master Program is comprised of goals, policies, and regulations for all uses within 200' of the shoreline. Additionally the update includes a Shoreline Inventory and Characterization, Cumulative Effects Analysis, Restoration Plan, and Public Access Plan 2. Procedural History The comprehensive SMP Update was drafted, reviewed and recommended for adoption after three years of deliberation and meetings as follows 2.1 Citizen Advisory Committee A team of dedicated citizens working to review the code sections to ensure local knowledge was incorporated, text was reader friendly, and the code requirements achieved the goals established. Meetings were held as follows 1) 8/10/2010 Kickoff meeting 2) 1/31/2011 • Designations 3) 4/1912011 • Policies and Designations 4) 6/17/2011 • Regulations 5) 8/16/2011 Nonconformities 6) 10/18/2011. Public Access 2.2 Technical Advisory Committee: Monthly coordination meetings held the third Thursday of every month Representatives from all a wide array of jurisdictions attend such as, but not limited to Kitsap County, Bainbridge Island, Poulsbo, Port Orchard, Suquamish Tribe, Department of Natural Resources, Department of Fish and Wildlife, Army Corp of Engineers, Department of Ecology, Kitsap County Health Department, etc 2.3 Planning Commission: Public notification of these meetings was provided in the Kitsap Sun, emaiied to interested parties, and posted on the City Website a) 1119/10: Planning Commission Open House: Open House covering the general timelines and requirements of the update b) 7120110: Planning Commission Workshop on State Requirements: Ecology gave a presentation about their expectations and requirements for the SMP update c) 8117110: Planning Commission Workshop on Nonconformities: Discussion of existing nonconforming provisions and how they could be used within the SMP document d) 10116/10: Planning Commission Workshop Code Layout and Requirements* Reviewed existing Zoning, Critical Areas Regulations, and existing SMP to discuss areas of concern and approaches to the SMP Update e) 1/1712011: Planning Commission Workshop on the Inventory and Characterization: Staff provided an over view of the content and findings of the Inventory and addressed how the document would be used to draft code language Commission and public provided comments and asked clarifying questions f) 111712011: Planning Commission Workshop on the Department of Ecology's Expectations: Barbara Nightingale gave a presentation regarding Ecology's role in reviewing SMP's specifically relating to the information within the document that was necessary for approval Questions and comments were answered g) 3/15/2011: Planning Commission Workshop on Mapping & Designations: Reviewed existing maps, zoning, and inventory to determine best designations for the update h) 511712011: Planning Commission Workshop on Goals $ Policies: Draft language was prepared by the Citizen Advisory Committee and Staff was presented to the Commission for comment and review i) 7/1912011: Planning Commission Workshop on Regulations: Draft language was prepared by the Citizen Advisory Committee and Staff was presented to the Commission for comment and review j) 9/2012011: Planning Commission Workshop on Nonconformities: Discussion of draft language to incorporate nonconforming regulations into the SMP k) 11/1512011: Planning Commission Workshop on Public Access: Discussion of the public access plan and its applicability in the future 1) 1121/2012: Planning Commission Workshop on the Restoration and Cumulative Effects Analysis: Discussion of the reports, relationship to the document, and accuracy of data within Several revisions requested. m) 2121/2012: Planning Commission Workshop on Revisions to the Document: Discussion of various topics and potential solutions to issues raised at previous meetings n) 311512012: Planning Commission Workshop on Nonconformities: Significant deliberation and public comment received regarding the title of nonconforming and potential changes based on SSB 5451 Planning Commission directed staff to maintain use of the term Legal Nonconforming and to continue the 75% rule for voluntary redevelopment o) 5129/2012: Planning Commission Heanng on the SMP Update- Review of the entire document. Planning Commission deliberated and made a recommendation to City Council for adoption 3. Public Comment Public comment was received throughout the duration of the SMP Update Comments were received in various formats including letters, e- mails, and public testimony at hearings The Planning Commission addressed the full range of comments received 3 1 Individuals providing written comments including e-mail for all Workshop Meetings a) Richard Nerf, Citizen Advisory Committee Member b) Allison O'Sullivan, Suquamish Tribe Fisheries Department c) Roger Duryea, Property Owner d) Theresa Nation, Department of Fish & Wildlife e) Larry Matel, Bremerton Engineering Department f) Judy Friedberg -Nerf — Citizen Advisory Committee g) Kojo Fordjour, Washington State Ferries h) Stephanie Trudel, Suquamish Tribe i) Alan Beam, Property Owner j) Dana Hamar, Property Owner k) Barbara Nightingale, Department of Ecology 1) Kim Ingham, Property Owner m) Jackie Rossworn, Interested Party n) Bill Broughton, Property Owner 3 2 Individuals providing written comments including e-mail for the Public Hearing. a) Alan Beam, Shoreline property owner in UGA b) Brian Mandak, Shoreline property owner c) Richard Nerf, Shoreline property owner and Citizen Advisory Committee member 4. SEPA Determination The SEPA Environmental Review for the proposed Update to the Shoreline Master Program is complete. The City of Bremerton reviewed the SEPA Checklist on the proposal and issued a Determination of Non Significance (DNS) on May 14, 2012 The public comment period on the DNS expired on May 29, 2012, no appeals were filed The basis for the DNS rests on the fact that the SMP enhances protections for the t environment in every category, and is grounded by extensive scientific study through the Inventory & Characterization, Restoration Plan, and Cumulative Effects Analysis and has undergone extensive public and agency scrutiny 5. Consistency 5 1 The proposal meets requirement of the Shoreline Master Program process described in WAC 173 -26 Parts I and II. The proposal meets SMP Guidelines included in WAC 173 -26, and enforcement requirements per WAC 173 -27 5 2 The proposal is a comprehensive SMP Update that is mandated by the State The revisions intend to update the overall goals and policies of SMP in order to utilize existing scientific data and comply with the Department of Ecology guidelines 5.3 The proposed SMP Update is consistent with the Washington State Growth Management Act goals and policies 5 2 The proposed SMP Update is consistent with the City of Bremerton Comprehensive Plan and Kitsap Countywide Planning Policies (CPP) including the following 2004 Bremerton Comprehensive Plan • E8 Protect and preserve Bremerton's unique marine and fresh water resources. • E12 Ensure consistency between the goals and policies of this Comprehensive Plan and those found in the Bremerton Shoreline Master Program • E11 E Protect public views and vistas of both shoreline environments and mountains. • EC11 Promote both short and extended recreational activities in Bremerton, especially along the waterfront Kitsap Countywide Planning Policies • C4 The County's Comprehensive Plan policies shall promote techniques to protect and enhance significant open spaces, natural resources • E2 Conserving and enhancing the County's natural resources, critical areas, water quality /quantity, and environmental amenities while planning for and accommodating sustainable growth • E5 The County and the Cities shall preserve, protect, and where possible, restore the functions of natural habitat to support ESA - listed species, through the adoption of comprehensive plan policies, critical area ordinances, shoreline master programs and other development regulations that seek to protect, maintain or restore aquatic ecosystems associated habitats and aquifer through the use of management zones, development regulations, incentives for voluntary efforts of private land owners and developers, land use classifications or designations, habitat acquisition programs or habitat restoration projects 54 The proposal will not adversely affect the public health, safety, general welfare, of the Citizens The recommended SMP Update includes provisions and regulations intended to protect the public health, safety, general welfare by preventing development that will degrade shoreline environments, or preclude water - dependent economic uses or obstruct public enjoyment of state waters 55 The proposed SMP Update has included continuous and open public involvement and adequate public notice. The SMP Update has included open houses, public workshops, and a public hearing at the Planning Commission level All meetings at the Planning Commission level, were noticed with formal advertisement in the Kitsap Sun, emailed to interested parties, and dates were posted on the City of Bremerton website. Drafts of the recommended SMP Update were continuously posted to the City of Bremerton website, and paper copies were made available for review at the Community Development offices at 345 6th St Suite 600 I11. CONCLUSIONS & RECOMMENDATION The Planning Commission concludes that the proposed SMP Update is consistent with the Shoreline Management Act, the Growth Management Act, Kitsap County -Wide Planning Policies, and the City of Bremerton Comprehensive Plan The Commission concludes that the proposed SMP Update is adequate to protect the public health, safety, general welfare and private property from development along shorelines that would damage the environment, preclude public enjoyment of waters of the State, or inhibit water - dependent economic uses Res p tfully submitted by ndrea L p cer, Executive Secretary Z d by aair g o Exhibit B Due to the size of the Shoreline Master Program document a full copy of it is not included in this packet A hard copy of the SMP was distributed to each member of the City Council in June at the start of the "Summer Workshops" for this update process To review the contents of the document please go to bremertonshorelmes com or you can review a hard copy of the document at the Department of Community Development on the O h floor of the Norm Dicks Government Center Exhibit C Amendments to the City Council Draft SMP This chart outlines changes to the Draft SMP document that have been reviewed by City Council and are recommended to be included into the recommended draft submitted to the Department of Ecology These revisions along with minor page number alterations will be included into the document prior to submittal to the Department of Ecology The Chart identifies the code section and page number, reason, and actual text amendment Location in Proposed Change Proposed Code Language Code Rationale P 13 Add a definition of Agriculture Agricultural uses and practices include, but are not agriculture so that it is limited to Producing, breeding, or increasing agricultural products, Section clearer what is prohibited rotating and changing agricultural crops, allowing land used for Definitions in the shoreline area agricultural activities to lie fallow in which it is plowed and tilled but left This definition is unseeded, allowing land used for agricultural activities to lie dormant, important to the conducting agricultural operations, and maintaining agricultural lands Suquamish Tribe to under production or cultivation as defined in WAC 173 -27 -020 This ensure fish hatcheries excludes activities typically associated with single family residences, are not prohibited or such as gardening, residential chicken coops, or pet ownership, and considered "agriculture" does not include fish hatcheries which are listed under a uaculture P 17 Replace definition of "fill' Fill The addition of sod, sand, rock, gravel, sediment, earth retaining to be consistent with the structure, or other material to an area that increases the natural surface Section updated guidelines per elevation For wetlands, this includes areas waterward of the OHWM, Definitions WAC 173 -26- 020(16) or on shorelands in a manner that raises the elevation or creates dry This change has been land requested by Ecolo Exhibit C p 73 Clarify that the SMP Upland areas adjacent to the shoreline perform essential functions regulations for buffers necessary to sustain habitat and ecological processes It is for this Section supersede the CAO reason that development must be set back from the water's edge and 20 16 710 regulations This added that natural buffers must be created and or preserved The City language ensures the currently regulates such areas through the Critical Areas Ordinance larger buffers in the CAO (Ordinance 4965 codified in BMC 20 14), however in areas regulated are not applied in the by this document within the shoreline jurisdiction, the following policies shoreline jurisdiction and regulations will supersede those within the Critical Area Regulations P 76 Clarify that underwater (text of footnote in table) (footnote in areas are not used to (4) Determininq Lot Depth Areas inundated with water are not the chart) calculate lot depth when included in the calculation for lot depth, therefore the measurement determining buffer size may be taken from the OHWM For lots with varying lot depth, the Section average depth may be used 20 16 710(b) 5 P 76 Although implied, the ( Buffers and Associated Budding Setback Areas The distance of code does not specifically the buffer shall be measured from the Ordinary High Water Mark Section say refuse /garbage is (OHWM) Buffers shall remain undisturbed natural beach or vegetation 20 16 710(b) prohibited on the beach areas except where the buffer can be enhanced to improve its (5)(1) This is an important functional attributes, as approved by the Department Buffers shall be addition for code maintained along the perimeter of Fish and Wildlife Habitat enforcement Conservation Areas, as outlined in the table above Refuse and proceedings arg bage shall not be placed or stored in the buffers or on the beach Exhibit C P 77 Add language to the list Exemptions from Fish and Wildlife Habitat Conservation Area Buffers of exemptions from (The whole list is not shown herein order to save space) Section buffers for properties (i) Those portions of an approved water - oriented 20 16 710(b) separated from the development that require a location waterward of the ordinary high (10)(11) shoreline by roads or water mark, and /or within their associated buffers and setbacks, other developed a- OODevelopment activities on lots that are physically and properties These functionally separated from shoreline by an improved paved public or properties are not private road or railroad or similar facility and /or by one or more existing necessarily "isolated" developed lots under separate ownership such that the ecological from the shoreline, but functions provided by buffers do not occur This provision shall not would not provide any apply to such a facility within a development proposal or contiguous added benefit from ownership that can be feasibly relocated to accommodate buffers providing a buffer J W104Underground utilities, P 86 Modify language 20 16 760 (a) Policies regarding cultural (1) Prevent the destruction or, or damage to, any cultural resources Section resources to remove the and any site having historic, cultural, scientific, or educational value as 20 16 760 sentence that identified by the appropriate authorities, including the Suquamish encourages land owners Tribe, and the Washington State Department of Archaeology and to provide public access Historic Preservation onto private property for (2) Land owners should PFOVide aGress to qualified picefessieRaIS and the purpose of education Exhibit C P 91 Add provisions allowing ( 1) Heights in the commercial & industrial districts may be increased to increased height for the zoning district height limit through a Type III Conditional Use Section commercial and industrial Permit provided 20 16 790(b) designations that have (a) The increase does not substantially block views from upland (1) higher height limits in the residential properties, zoning code (b)The project may be required to include compensating elements that substantially enhance the visual and physical public Examples of locations access to the shoreline include Old Wheaton (c) It is demonstrated that No Net Loss of habitat function will Way by the Hospital and be achieved the Shipyard - (2) Single Family Residential heights may be increased to 35' with the employment of a pitched roof when (a) The pitch of the roof is not less than 6 12 (b) The pitched roof is oriented perpendicular to the shoreline Minor gables or other roof features parallel to the shoreline may be permitted on a case by case basis provided such features do not extend past the pitched roof where views are intended to be preserved c The pitched roof covers the entire structure P 91 Clarify that the height Table Notes (footnote in limit only applies to the The height limit is restricted to that portion of the building physically table) areas within the shoreline located within the shoreline iunsdiction jurisdiction Section 20 16 790(b) chart Exhibit C P 121 Add language restricting (6) Non - structural and non - regulatory methods to protect, enhance, removal of gravel from and restore shoreline ecological functions and other shoreline Section streams and rivers per resources should be encouraged as an alternative to structural 20 16 950 the WAC as required by flood control works Non - regulatory and non - structural methods (b)(6) Ecology may include public facility and resource planning, land or easement acquisition, education, voluntary protection and enhancement projects, or incentive programs Removal of gravel or similar materials from the creek, stream, or river channel for flood management purposes may be allowed only as part of an adopted integrated flood control management program that demonstrates that other flood hazard reduction strategies would not be effective in the absence of gravel removal 3 i Aug. 8, 2012 — Study Session "Shoreline Modifications" • Buffers & Vegetation Management • Docks • Shoreline Stabilization Aug. 15, 2012 — Televised SMP Presentation (Repeat of previous Study Session) Aug. 22, 1012 — Study Session "Nonconformities" • Nonconformities • SB 5451 Aug 29, 2012 — 5 th Wednesday, No Meeting Sept 5, 2012 — Televised SMP Presentation (Repeat of previous Study Session) Sept 12, 1012 — Study Session "Recap / Revisions" • Review of any modifications recommended by City Council, Ecology, and the public Sept 19, 1012 — No televised presentation Sept 26, 1012 — Study Session "Final Review" • Final review of any modifications recommended by City Council, Ecology, and the public Oct 3, 1012 — Televised SMP Public Hearing • Recap of the process • Review of project applicability and contents MM nbf ilk 0 FAQs What is the Shoreline Master Program? The Shoreline Master Program (SMP) applies across the City and establishes development standards for shoreline development State law requires each jurisdiction with shorelines of State wide significance to make and update these rules Bremerton last updated their SMP in 1992 and is now being required to update it again The City's SMP must comply with the requirements of the Shoreline Management Act specifically the guidelines created in 2003 The general goals of the Shoreline Management Act are • Protect shoreline natural resources, including " the land and its vegetation and wildlife, and the water of the state and their aquatic life " • Promote public access: "the public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally " • Encourage water - dependent uses: "uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the states' shorelines " Where does the Shoreline Management Act apply? The Shoreline Management Act (SMA) applies to all shorelines of statewide significance such as Puget Sound, large lakes (Kitsap Lake), rivers and reservoirs (Twin Lakes) It also applies to upland areas within 200 feet of the shoreline edge, floodplains and associated wetlands Why are we doing this? In 2003 the Department of Ecology adopted new guidelines for shoreline development In addition to the new guidelines the SMP has not been updated since 1992 and several sections are outdated It is the City's intent to modify the SMP to comply with state requirements and to utilize new science to help make regulations logical for each specific area rather than blanket requirements for all areas Generally the City intends to revise the SMP to be user friendly, fair and balanced What changes are required by the State? The following describes some of the key new requirements found in the Guidelines Shoreline Environmental Designations. The Guidelines establishes a new system of classifying the shoreline areas based on physical, biological and development characteristics Each shoreline environment has a different level of protection and the allowed uses, activities and improvements must be appropriate for that level of protection The City's current shoreline designations need to be modified to meet the new classification system No Net Loss The Guidelines require that the impacts of new uses, activities and improvements be identified and mitigated with a final result "no net loss" of the shoreline ecological function The benchmark for the 'no net loss' starts with today as a baseline - NOT a pristine undeveloped environment Since most types of shoreline development result in at least some degree of impact to ecological functions, the 'no net loss' standard means that the SMP must contain provisions for mitigating these unavoidable impacts In evaluating 'no net loss', the City must consider the aggregate effect of future development that includes both the individual impact of each development and the cumulative impact of all of the development that is likely to occur Restoration Plan. The Guidelines also require jurisdictions to plan for restoration of ecological functions where the functions have been impaired Restoration plans are to be done through a combination of public and private programs and actions The goal is to improve the overall condition of habitat and resources within the shoreline area over time compared to the existing conditions Actions could include planting shoreline vegetation, replacing part or all of bulkheads with soft shoreline stabilization and adding fill and vegetation waterward of existing bulkhead Shoreline Stabilization. The Guidelines contain specific standards addressing shoreline stabilization The Guidelines make clear distinctions between hard structural shoreline stabilization (not preferred), such as a bulkhead or concrete wall and soft shoreline stabilization (preferred), such as a mix of gravels, cobbles, boulders, logs and native vegetation New hard structured shoreline stabilization is only to be allowed if soft shoreline stabilization is not feasible What role does science play in the update? Science plays a very important part in preparing an SMP For example, following RCW 90 58 100 (1), local governments are instructed to "utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts and consider all plans, studies, inventories and systems of classification made or being made by federal, state, regional or local agencies or by organizations dealing with pertinent shorelines of the state " This legal direction is implemented in the guidelines in the requirement to incorporate "the most current, accurate and complete scientific and technical information available that is applicable to the issues of concern " This direction is further supported by the obligation that master program provisions be based on "an analysis incorporating the most current, accurate and complete scientific or technical information available " What does No Net Loss mean? The 2003 Shoreline Management Act guidelines establish the 'no net loss' principle The standard of no net loss of ecological functions is to be achieved over the City's SMP planning horizon of 20 years by implementing the updated SMP policies and regulations The no- net -loss standard is designed to stop new impacts to shoreline ecological functions resulting from new development This means that the existing condition of shoreline ecological functions needs to remain the same, and should even be improved as a result of restoration, as the updated SMP is implemented over time This standard is to be met by appropriately regulating public and private development, implementing a Restoration Plan, and improving practices that affect the shoreline Resulting impacts of development should be identified and mitigated so as to maintain shoreline ecological function as it exists today - not from some time in history How is no net loss measured? No net loss is measured from a city wide, cumulative perspective, but met by project -level mitigation from both public and private development and redevelopment Cumulative impacts consider current circumstances affecting the shoreline and relevant natural processes, reasonable foreseeable future development and use of the shoreline, and beneficial effects of any established regulatory programs under other local, state and federal laws Because there are no easy tools to measure ecological function, indicators that are related to function and can be measured are used to assess possible change in ecological function over time (e g, square feet of overwater cover, average structure setback, area of native vegetation) Does that mean that an SMP must prohibit all development that will result in a loss of shoreline ecological functions? No The 'no net loss of ecological function' standard means that the updated SMP must contain provisions for mitigating these unavoidable impacts by restoring degraded shorelines and by avoiding or minimizing impacts When should impacts be avoided, and when may they be minimized? SMA policy and the guidelines recognize the need for both the appropriate shoreline use and protection of shoreline resources Thus, the SMP must provide for preferred shoreline uses set forth in the State SMA These include water- dependent uses, such as marinas, public access facilities, and owner - occupied single - family residences Impacts resulting from these preferred shoreline uses, where they cannot be avoided, must be minimized by application of appropriate regulations Single Family Residence Repair and Maintenance Permits 2012 Remodel Permits for Single Family Residences Work Permitted New Construction Value Assessed Structure Value Update bathroom and $40k $183k replace heat pum Repair foundation & deck $15k $64k New windows, doors, deck $7k $32k Remodel Carport $15k $165k 2011 Remodel Permits for Single Family Residences Work Permitted New Construction Value Assessed Structure Value Garage Repair $13k $102k Window and Porch replace $3k $115k Replace Decks $15k $141k Repair Deck $8k $169k Remodel & Repair Home $500 $47k Note This list does not include all permits issued within the shorelrnejurisdiction, rather it encompasses only those permits that were for single family residential maintenance, repair, or remodel Christine Grenier From Nicole Floyd Sent. Wednesday, October 03, 2012 10 38 AM To: City Council Cc. Andrea Spencer, Heather M Kauer Subject: FW Suquamish Bremerton SMP comments Oct 2012 The following are comments from the Suquamish Tribe regarding the SMP public hearing tonight Sincerely, Nicole Floy' City of Bremerton Land Use Planner phone (360) 473 -5279 fax (360) 473 -5278 From: Alison Osullivan [madtomosullivan @ suquamish nsn us] Sent: Tuesday, October 02, 2012 6.21 PM To: Nicole Floyd Cc: Gina Piazza Subject: Suquamish Bremerton SMP comments Oct 2012 Nicole, Thank you for the opportunity to review and comment on the latest draft of the Bremerton Shoreline Master Program Update These comments are in addition to written, verbal and /or emailed comments previously submitted Comments are as follows General The Tribe requests notification of all shoreline projects ( including exempt) to determine if there are impacts to Tribal treaty cultural or natural resources Specific 20 16 510 (e) Add Suquamish Tribe to agency coordination The Suquamish Tribe is a co- manager of the State fishery resources along with Washington Department of Fish and Wildlife 20 16 510(h) Construction of shoreline stabilization and single family residences should not be exempt There is the potential to impact tribal treaty resources and these impacts are not addressed 20 16 510 Stream bank stabilization should not be considered an "enhancement" activity /project Erosive forces are natural and if they occur at a greater rate than what would occur in an undeveloped segment of stream then it is likely the result of development occurring too close and the stabilization is merely a band -aid and doesn't address the actual problem 20 16 710 (3) Department of Ecology has said that it is not possible to mitigate for Category I wetlands There are so few of these wetlands that impacts should be avoided /prohibited 20 16 710 The Tribe does not support buffers less than 50' Smaller buffers may be protective for some functions but does not include water quality i 20 16 710 (4)(11), 7 16 720 Development should be designed and located so that shoreline stabilization is not required or needed 20 16 710(4) Steep slope buffer reduction applications should also include a seismic evaluation 20 16 790 Marinas, docks, boat launches and dredging should not be allowed in conservancy designations 20 16 860 (a)(7) and 20 16 940 New boating facilities should be located and designed so that dredging is not required or needed (contaminated soil clean -up is a separate issue) 20 16 940 Dredging should only be allowed for those facilities that have a current, approved maintenance dredging permit and when appropriate mitigation is applied No new dredging should be allowed 20 16 940(b)(6) The U S Army Corps of Engineers and the Suquamish Tribe need to be added 20 16 980 Shoreline stabilization should only be allowed at or above the Ordinary High Water mark to better allow for natural functions and processes to occur 20 16 980 Shoreline stabilization should only be allowed if the primary structure is in "immediate" danger (within 1 -2 years) Thank you for the opportunity to comment Please keep us informed of project status and any relevant project related actions If you have questions or concerns please don't hesitate to call 360 - 394 -8447 Alison Alison O'Sullivan Biologist, Suquamish Tribe Fisheries Department 1 ""W 18490 Suquamish Way (street) P 0 Box 498 (mailing) Suquamish, WA 98392 phone (360) 394 -8447 fax (360) 598 -4666 z BROUGHTON LAW GROUP, INC., P.S. ATTORNEYS AT LAw 9057 WASHINGTON AVENUE N W WILLIAM H BROUGHTON SILVERDALE, WASHINGTON 98383 KENNETH W BAGWELL (360) 692 -4888 • FAx (360) 692 -4987 INTERNET ADDRESS bbroughtonlaw com 'RECEIVED CITY COUNCIL OFFICE'S DATE a? n, September 25, 2012 Sent via rirst class mail Bremerton City Council Bremerton City Hall 645 Sixth Street, Suite 600 Bremerton, WA 98337 RE Shoreline height limitations in commercial & industrial districts in the City of Bremerton- Proposed Shoreline Master Program amendments Dear City Council Members I am a member of WEBG, LLC WEBG owns a commercial parcel of property adjacent to Harrison Medical Center in Bremerton next to the former Bay Bowl The property is zoned employment center and currently has a zoning height restriction of 80 feet I would like the City Council to incorporate by reference and revisit all of the testimony and technical input received when the employment center height limitation was established at 80 feet This commercial zone supports Harrison Medical Center The goals for this commercial district include higher density development so that adjacent uses can support the activities of Harrison Medical Center High density residential and commercial uses to this district enable development of medical facilities to support the hospital Higher density residential uses enable those who work at the medical center to be able to walk to work Mixed use developments would allow a "medical center village" where Bremerton residents can obtain goods and services needed without having to drive their cars The record behind the establishment of this zone also reflects the unique topography of the area As you all know, Harrison Medical Center sits some distance from the shoreline areas and is at a much higher elevation than the shoreline The topography generally consists of high bank waterfront considerably below the elevation of the medical center and other upland commercial uses As a result, the 80 foot height limitation in this zone recognizes and takes advantage of this topography Such an analysis is particularly relevant in analyzing a height restriction under the proposed Shoreline Master Program WEBG supports amendment of the proposed Shoreline Master Program by allowing heights in the employment center district to be increased provided that the increase does not substantially block views from upland residential properties A taller building with a smaller footprint would provide more view opportunities than a 35 foot high structure covering most of the site The amendment also provides for enhancement of visual and physical public access to the shoreline and further requires that no net loss of habitat function will occur While supporting this amendment, WEBG would suggest that the height increases be allowed through a type II conditional use permit process While we understand a desire to ensure public participation in height increase decision making, the type II conditional use permit process allows for notice to affected property owners Any property owner or interested citizen who has concerns about an increase in height limitation for a particular project can use the conditional use permitting process to require that a public hearing be held Requiring a type III conditional use permit process for any height increase will utilize significant City resources unnecessarily for those increases that are generally supported by surrounding property owners In addition, the public hearing process required under type III conditional use permits is relatively expensive and time consuming Thank you for considering the amendment to the Shoreline Master Program While a 35 foot height restriction is appropriate in residential areas, there are hundreds of examples where local Jurisdictions have increased height limitations to support commercial and industrial activities including significantly higher height limitations on the shoreline in the downtown Bremerton core Facilitating development of accessory uses to Harrison Medical Center will be a benefit not only to the medical center but to the citizens of Bremerton and Kitsap County Thank you for your consideration of this amendment Sincerely, William H Broughton Cc Nicole Floyd, Bremerton DCD WHB kk �{ October 3, 2012 V NY City Council CITY OF BREMERTON 345 - 6' Street, Suite 600 Bremerton, Washington 98337 SUBJECT Testimony - City's Proposed Shoreline Master Program Honorable Council Members Kitsap Association of Realtors has requested that I submit comments on their behalf regarding the Shoreline Master Program update that the Council is set to adopt That organization has followed the program update process and through the membership of the Kitsap Alliance organization the Realtors are thus informed of the steps taken to bring this program to the Council for adoption Like Kitsap Alliance the Realtors are critical of the SMP that the City of Bremerton is about to adopt Specifically we believe the whole program has the following defects 1 There was no scientific study performed to document the condition of the fresh and saltwater environment to determine whether there is in fact shoreline environment degradation Of the several studies cited in the "Restoration Plan" included as an appendix to the SMP, the only analysis that even comes close to meeting scientific standards of analysis is the 2009 Battelle document - East Kitsap County Nearshore Habitat Assessment and Restoration Prioritization Frame work and West Kitsap Addendum The Kitsap Alliance organization has presented data to Kitsap County to document the fact that study does not qualify as a scientific analysis of either Kitsap County's or the City of Bremerton's shoreline environment conditions Thus it is not a reliable study upon which to base regulatory measures 2 No study was undertaken to document findings of fact showing that the SMP regulations the City has implemented since the mid -1970s have caused any adverse impacts on the shoreline environments within the City 3 The City of Bremerton has faded to recognize that most of its shoreline frontage is already developed That failure is embodied in the proposed regulations that will eventually cause land owners to comply with buffer and re- vegetative planting standards for no demonstrable reason other than because there is a new regulation Because the City faded to perform the study mentioned in point 2, the regulations in the BSMP update are nothing less than a punitive measure for the property owner It is so described because the regulation exists without a problem for which a correction was needed Witness the fact that now in most of the City's Shoreline Environment designations there are regulations that cause existing homes, structures and vegetation to become non - conforming uses This is a problem of substantial P. O. BOX 6 PORT ORCHARD, WASHINGTON 98366 TEL: [3601621-7237 or 12531858-3644. FAX: [253] 858 -3654 e-mail: wpconslts@telebyte.net r + City Council - Shoreline Master Program Update Comments Page 2 magnitude It represents three basic failures of City government - inappropnate planning on the part of those promulgating regulation, irresponsible legislative action on the part of electorate and an abridgement of the rights of use granted to property owners by both the Federal and State Constitution 4 The Bremerton SMP includes new environment designations, not because there was a demonstrated need to reclassify existing environments or even because there was a "mandate" to do so in either RCW 90 58 or WAC 173- 26, but because the City was encouraged to do so by State Department of Ecology personnel In fact all the City is required to do in the SMP update guidelines as found in RCW 173 -26 is to have made an assessment of the effectiveness of the existing environment classifications, policies and regulatory measures pertinent to those environments (See WAC 173- 26- 211(4)(c)(i)) Since the study mentioned in point 2 above was not performed, it is clear the City has chosen to do something someone else told them to do without having first determined what was best for the citizens of Bremerton 5 The City of Bremerton received "grant and aide" money from the Department of Ecology (DOE) to pay for much of the work involved in this SMP update Based on the above listed findings it seems the SMP has been tailored to meet DOE staff wishes rather than on a decision of what is best for the residents of the City of Bremerton Taking the instance of buffer standards, since there is no scientific data to support a buffer over 35 feet, that is exactly the standard the City of Burien imposed While that standard was initially challenged by DOE staff, the City Council maintained their position and their program was approved Because of the funding carrot many other jurisdictions including the City of Bremerton are following the guidance of DOE staff rather than do what is best for their citizenry 6 The City's SMP includes provisions for "no net loss " All SMPs updated according to the new guidelines must include such provisions However, an existing conditions assessment has to have been performed to first understand whether or not there has been or is continuing a degradation of the shoreline environment due to the presence of urban development The date of a "no net loss" assessment is now not some previous point in time in the past Since most of Bremerton's shoreline areas are already developed, there is nothing to loose That fact should be the starting point for any and all regulations that the City might adopt The second line of analysis is to address what changes could occur that might have a material and degrading effect on the shoreline environment Any development behind a bulkhead for example should only be further constrained if it can be shown to have a negative impact on the condition of the 2012 -2013 shoreline environments Unfortunately the City of Bremerton's SMP regulations require the establishment of vegetative buffers and mitigative measures for even additions to homes regardless of whether there is any impact what-so -ever on the shoreline environment 7 Bremerton's SMP includes provisions for "Shoreline Restoration " it is quite plainly admitted in the Restoration Plan (February, 2012 Draft) Section 13 that the SMP does not require restoration activity or measures Clearly that statement is consistent with the RCW and the WAC guidelines However, if it is not required, why is their a 45 paged document included in the SMP? Its inclusion means it will be used as "guidance" for decisions made by staff on Shoreline Substantial Development Permits, Shoreline Conditional Use Permits, City Council - Shoreline Master Program Update Comments Page 3 Shoreline Variance Permits and Shoreline Exemption certifications Call it regulation by proxy if no other term fits, but the measures and the restoration standards found therein will be used in the permitting process - BECAUSE THEY ARE THERE Those wishing to contest the imposition of "standards of permit review" not codified will find their applications contested or denied outright. The only redress for the applicant will be to file an appeal to the Hearings Board or to Superior Court Are the citizens of Bremerton well served when they have to deal with "proxy regulations There are other more specific issues that could be addressed At this final hour, it is unlikely even the points raised herein will be cause for any meaningful action on the part of the Council to perform a more thorough review of the SMP to the point where the implications of imposing a new set of draconian regulations are better understood Even though the Council will not likely take any additional time to study the SMP, it is prudent to request that the Council evaluate the costs involved to implement the SMP For example how much time will staff be required to devote to processing permits under the guidance of this ordinance? Since all new budding permit applications in shoreline property areas will have to be evaluated against the SMP how much staff time will that take Will the projected permit fee revenues cover those costs and is the City committed (as they should be) to pay the difference in actual staffing costs and that derived from permit fees? While such cost benefit analysis is undertaken to assess governmental responsibilities, what are the implications for the citizens of the City Can they afford to pay the permit application fees? Will they forego improving their homes and structures because they cannot afford code compliance? Since the City has a long standing problem with dilapidated structures not repaired in a timely fashion, who has tried to determine whether regulation compliance and the costs there of are reasons people do not upgrade their structures Since 80 - 90 percent of the City's buildings either are or will be made non compliant with new rules why is that not a problem It is certainly a cost of regulation The realtors and others the seven points addressed herein will not be ignored and that the Council will take the time to at least analyze the cost implications of the SMP it is about to adopt Comments respectfully submitted, ( — I C- � X—Lw William M Palmer W M PALMER CONSULTANTS 3 October, 2012 Bremerton City Council 345 6" Street, Suite 600 Bremerton, WA 98337 Re Non - Conformities Related to the Shoreline Master Program Update Dear Members of the Bremerton City Council, As the Chairman of the City of Bremerton Planning Commission, I have been extensively involved in the process of updating the City's Shoreline Master Program (SMP) Planning, studying, developing and adopting the SMP has been a multi -year process, with extensive public involvement and consideration I have been very pleased with the hard work of City Staff, the Citizen Advisory Committee, the Planning Commission and those members of the public who've submitted comments and stood to give public testimony One of the most controversial issues we've faced in the SMP's development is the issue of non - conformities with the proposed updates As you know, changes in buffers, setbacks, vegetation requirements and such will render many shoreline structures non - conforming Concerned homeowners whose properties will be impacted by the change have voiced their concerns to you and others in the state, and as a result, the state legislature enacted Senate Bill 5451 that allows Jurisdictions to legally designate single - family residences as conforming structures, even though they do not in fact conform with the provisions of the proposed SMP Having heard and read many comments on the issue, I understand the concerns of these homeowners, but I urge you to avoid adopting an amendment that would designate these structures as conforming Simply put, such a decision will have unintended and negative consequences that outweigh the concerns of proponents First of all, I have seen many misconceptions and misunderstandings related to non - conforming structures I have heard some say that they will be unable to rebuild following a fire or casualty, or would be unable to perform repairs or renovations of non - conforming structures This is not the case Voluntary replacement of up to 75% of a non - conforming structure's assessed /appraised value will not require compliance with the new SMP, so long as the non- conformity is not increased Repair of existing structures or bulkheads also does not required compliance Involuntary replacement, such as that driven by fire or other similar casualty allows a complete rebuild of the structure When these facts are laid out clearly, they themselves resolve a large portion of the concerns that have been raised Another of the consequences is in how the City will have to deal with the affected structures Whether we call them "conforming" or "non- conforming" these structures will m fact not be in compliance with the soon- to -be- adopted code If such a property owner wishes to add on to his or her residence, will they be able to increase the de -facto non - conformity (something illegal under current code)? Would the SMP requirements even apply? It is unclear then how the current code applies to these structures and how City Staff will be able to deal with building permits and the like, given this conflict I suspect that proponents of the change have not realistically considered these consequences The Bremerton Municipal Code (BMC) already has an entire section dedicated to how the City will deal with non - conformities (BMC 20 54) These sections clearly and significantly protect the property rights of owners of non - conforming structures, and provide regulations specifying how these structures are to be addressed If we make the changes contemplated by SB5451, this section will not apply to the structures being contemplated The reason we have development codes in the first place is to balance the rights of property owners with those held by other citizens and the broader interests of the community The concept of legal nonconformities protects the rights of property owners by ensuring changes in code do not require immediate and costly changes to a property to bring it into compliance A core aspect of community planning and zoning /development regulations is that of Eventual Compliance Though non - conformities can be "grandfathered ", the code is set up so that eventually, at some point in the future, these properties will be made compliant with the current code If we designate these structures as conforming, there will be no means for eventual compliance, and the de -facto non - conformities may continue in perpetuity If this was a possibility, why have codes apply to existing structures at all'? Finally, I raise what I find to be the most compelling reason to avoid designating these structures conforming It is perhaps a subtle one, but one with mayor consequences Noting that SB5451 only applies to single - family residences within the shoreline jurisdiction (and not docks, bulkheads, multi - family and commercial structures), designating these residences as legally conforming privileges waterfront single - family residence owners over all other structures in the city Single - family residences outside the shoreline jurisdiction, and all other structure types in the city would still be designated non - conforming, and would be subject to BMC 20 54, while those who are fortunate enough to own waterfront residences will be freed from these restraints Surely you understand the political implications of this favoritism As discussed at Planning Commission meetings, the proper way to address non - conformities is on a City -wide basis If it is the desire of the Council to consider changes in how the City deals with non - conformities, the proper way to do it is through updates to the comprehensive plan, which would apply city -wide The SMP is not the proper forum for addressing non - conformities, as these changes would only apply to single - family residences within the shoreline jurisdiction Once again, I strongly urge you to avoid making changes to the SMP that would designate single - family residences within the shoreline jurisdiction as "conforming" Sincerely, Greg Jose Chairman City of Bremerton Planning Commission Testimony of Alan R Beam before the Bremerton City Council October 3 2012 I have some observations on the Shoreline Master Program Process First you are the only elected body to review the Shoreline Master program As such you are the only group that is charged with looking out for the best interests of the citizens and property owners of Bremerton We should be your customers not the Washington State Department of Ecology Second the local jurisdictions are given wide latitude to apply the state law to accommodate local conditions The Department of Ecology is attempting to provide uniform controls over all the shorelines As an example the City of Bunen rejected the DOE's demand of expanding the buffers from 20 feet to 50 feet, and have been in active negotiations with the state on behalf of it's citizens for over a year http://www.burienwa.2ov/DocumentView.aspx?DID=l 793 Third the City of Bremerton's Shoreline is almost completely developed Leaving the burden of "No Net Loss" entirely on the property owners that want to improve their property A large percentage of the homes on the water are over 50 years old and could use some improvement Fourth here has been little to no scientific evidence that a shoreline residential lawn is a significant contributor to pollution in the Sound In fact a 15 million dollar, federally funded study for low oxygen in Hood Canal found there was no significant impact of human development on conditions in Hood Canal Draft EPA and Ecology Report on Dissolved Oxygen Impacts in Hood Canal http://blo2.pu2etsoundinstitute.or2/wp- content /uploads /2012 /09 /Draft- EPA -and- Ecology- Report -on- Dissolved - Oxygen- Impacts -in- Hood - Canal- 09- 14- 12.pdf Fifth over the last decade significant progress has been made cleaning up the waters in Dyes Inlet, Port Orchard Sound and Sinclair Inlet This has been accomplished by dedicated efforts by the City of Bremerton to stop combine sewage overflows, Puget Sound Naval Shipyard to stop oil and other Hazardous Waste discharges, and the Kitsap County Stream Team to locate and correct pollution sources in our streams The mayor source of pollution to our waters is Storm water run off https / /fortress wa gov /ecy /publications /publications /1110051 Pdf Sixth this Program is a passive program that places all onus on the land owner to prove that they are not contributing Environmental degradation There is no active process in the program to identify sources of pollution, take corrective action and measure progress I firmly believe that the sound is getting better not worse Seventh there is no justification given for the establishment of variable buffers Why should my required buffer be 100 feet and someone else's be 25 feet Why is my lawn treated the same as an impervious surface, and why does the city think native vegetation such as Salal is a better filter than grass Most shoreline property owners buy their property for the proximity to the water and enjoyment of the view Very few want to have a dense native vegetation wall erected between them and the water In conclusion I believe most home owners are good stewards of their property and want to improve it over time I believe that any program that discourages home owners for this goal is counter productive and will lead to bad consequences Please reject this plan as ill conceived and not in the best interests of the City of Bremerton and its citizens AGENDA BILL 1A CITY OF BREMERTON CITY COUNCIL SUBJECT: Resolution No .3181 Study Session Date September 12, 2012 authorizing a sole source contract with COUNCIL MEETING Date October 3, 2012 Columbia Hospitality, Inc for management Department Financial Services of the Gold Mountain Golf Club Presenter Becky Hasart Phone 473 -5722 SUMMARY: The proposed resolution authorizes the City to enter into a sole source management agreement and transition agreement with Columbia Hospitality, Inc for the promotion, operation and management of the Gold Mountain Golf Club ATTACHMENTS: Proposed Resolution No 3181 , Proposed Transition Agreement, Proposed Golf Course Management Agreement, Draft Pro -Forma Scenano (updated) FISCAL IMPACTS (Include Budgeted Amount) The current proposal on the table is for Columbia Hospitality to receive a 5% base management fee and a 20% incentive fee for any net operating income above $600,000 The attached pro -forma shows the impacts of this proposal If the revenues come in as listed under the yellow highlighted column, the management fee for 2013 would be $185,048 and the City would be in the positive by $466,864 before any consideration for debt service and capital reserve With debt service and a targeted 4% of revenue for capital reserve, the City would be in the positive by $36,796 ($282,030 for 2013 debt service and $148,038 reserved for capital) APPROVALS: DEPARTMENT DIRECTOR CITY ATTORNEY -� FINANCE DIRECTOR MAYOR RECOMMENDED MOTION: Move to pass Resolution No 3 i S 1 approving the sole source Golf Course Management Agreement and the Transition Agreement with Columbia Hospitality, Inc, and further authorizing the Mayor to negotiate, finalize and execute the agreements with substantially the same terms and conditions as presented STUDY SESSION ACTION: ❑ Consent Agenda KGeneral Business ❑ Public Hearing COUNCIL PRESIDENT -� COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/2011 RESOLUTION NO. 31 61 A RESOLUTION of the City Council of the City of Bremerton, Washington, authorizing a sole source contract with Columbia Hospitality, Inc for operation, promotion and management of the Gold Mountain Golf Club WHEREAS, BMC 2 76 040 establishes bidding procedures for the purchase of goods and services, and WHEREAS, pursuant to BMC 2 76 090, the request for bids requirement may be waived by written determination that either the materials, supplies, equipment or services are clearly and legitimately limited to a single source of supply, or that materials, supplies, equipment or services are subject to special market conditions, involve special facilities or services, or that a bid would not be otherwise practical or in the City's best interests under the circumstances, in which instances the purchase price may be best established by direct negotiation, and WHEREAS, Columbia Hospitality, Inc has been managing and operating the Harborside Conference Center on behalf of the City since 2003, and WHEREAS, the City has experienced a good working relationship with Columbia Hospitality, Inc and the management and operation of the conference center has been very successful, and WHEREAS, the operation of Gold Mountain Golf Club by Columbia Hospitality, Inc would allow for the combining of finances, marketing and other resources with the operation of the conference center, and WHEREAS, the City Council desires to waive the request for bids requirement and authorize sole source contracts with Columbia Hospitality for the management and operation of the Gold mountain Golf Club, and WHEREAS, the City Council desires to enter into a management agreement with Columbia Hospitality, Inc for the management and operation of the Gold Mountain Golf Club to begin in 2013 and further to enter into a transitional agreement for October through December 2012 to allow for the transition of management of the golf course from the current manager to Columbia Hospitality, Inc, NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS SECTION]. The recitals set forth above are hereby incorporated as if set forth herein in full 1 Gold Mountain Golf Course Management — Columbia Hospitality, Inc. SECTION 2. Pursuant to BMC 2 76 090, the request forbids requirement is hereby waived and sole source contracts are hereby authorized for the operation, promotion, and management of the Gold Mountain Golf Club. SECTION 3. The Mayor is authorized to negotiate, finalize and enter into the Transition Agreement with substantially the same terms and conditions as presented in Exhibit A attached hereto. SECTION 4. The Mayor is authorized to negotiate, finalize and enter into the Golf Course Management Agreement with substantially the same terms and conditions as presented in Exhibit B attached hereto SECTIONS. Severabdq 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 tlus Resolution and the same shall remain In full force and effect SECTION 6 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 , 2012 JIM McDONALD, Council President APPROVED AS TO FORM ATTEST ROGER A LUBOVICH, City Attorney SHANNON CORIN, Intenm City Clerk R \Legal\Legal\Files \Current Active Files \Gold Mountam\Columbia Hospitality Agreement - 2012 \Sole source resolution docx 2 Gold Mountain Golf Course Management — Columbia Hospitality, Inc. PROFESSIONAL SERVICES AGREEMENT Columbia Hospitality, Inc. - Transition Agreement The City of Bremerton ( "City ") and Columbia Hospitality, Inc., a Washington corporation ( "Manager "), referred to collectively as the "Parties," enter into the following Professional Services Agreement dated effective October 4, 2012 I. Scope: The Manager agrees to perform the services more specifically described in the Scope of Work, attached hereto as Exhibit A, which is incorporated by reference herein The Scope of Work may be modified only pursuant to Section IX.I of this Agreement. If the Scope of Work provides for unspecified additional services such services shall only be performed upon the express written request of the City. Manager represents that the services furmshed under this Agreement will be performed in accordance with applicable industry practices in effect at the time such services are performed II. Term: The City and the Manager agree that work on the tasks described in Exhibit A will be performed from October 4, 2012 through December 31, 2012 III. Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Manager the amount of $7,000 00 per month for the services to be performed On or before the 1 St day of each month during the term of this Agreement, Manager shall submit a monthly billing statement. Upon receipt of a conforming billing statement, the City shall promptly make payment. Amounts not paid within thirty (30) days of the statement date shall be subject to a late fee equal to the lesser of (a) one and one -half percent (1 1 /2%) per month or (b) the legal maximum rate of interest Manager shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement Manager shall only be compensated for additional services if requested and agreed upon by the City IV. Relationship of Parties: Manager represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. Manager and its personnel are independent contractors and not employees of the City Manager and its personnel have no authority to bind the City or to control the City's employees and contractors None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or contractors of the Manager Manager will be solely and entirely responsible for its acts and for the acts of Manager's agents, employees, representatives and contractors during the performance of this Agreement As an independent contractor, Manager is responsible for its own management. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Manager or its personnel 1 Gold Mountain Golf Club EXHIBIT A Transition Agreement As an independent contractor, Manager is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges ansing from the delinquency, from any payments due Manager. V. Indemnification: (a) Each party shall defend, indemnify and hold the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all reasonable legal costs and attorney fees, ansing or alleged to anse out of or in connection with its performance of this Agreement. (b) Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24 115, then, in the event of liability for damages ansing out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Manager and the Owner, its officers, officials, employees and volunteers, the Manager's liability hereunder shall be only to the extent of the Manager's negligence (c) IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES EACH PARTY'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER (d) The provisions of this section shall survive the expiration or termination of this Agreement VI. Insurance: Before beginning work on the project described in this Agreement, the Manager shall provide a Certificate of Insurance evidencing 1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage Coverage shall include but not be limited to blanket contractual, products /completed operationsibroad form property damage, explosion, collapse and underground (XCU) if applicable, and employer's liability, and 3. Excess Liability insurance with limits not less than 1,000,000 limit per occurrence and aggregate 4. Professional Liability insurance with limits no less than $1,000,000 limit per occurrence /claim Any payment of deductible or self insured retention shall be the sole responsibility of the Manager 2 Gold Mountain Golf Club Transition Agreement All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which may be provided on a "claims- made" basis The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Manager and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements The Manager's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability The Manager's insurance shall be primary insurance as respects the City and it shall be an affirmative obligation upon Manager to advise the City's Risk Manager by fax at (360) 473- 5161, or by certified mail, return receipt requested to City of Bremerton, attn: Risk Management, 345 6 Street, Suite 600, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy set out herein, and failure to do so shall be construed to be a breach of this Agreement The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. VII. Limitations on Scope: The City acknowledges and agrees to the following limitations on the scope of services provided hereunder (a) Any and all financial projections prepared by Manager within the scope of services provided under this Agreement are intended solely to assist the City and are not to be relied upon by the City or any other third party as to the accuracy of information contained therein or the results predicted. The City acknowledges and agrees that Manager shall not be held responsible by the City or any third party for any divergence between such projections and budgets and actual operating results (b) Deliverables, if any, resulting from the services shall be dated as of the date of completion Manager is under no obligation to update the results of its work to incorporate changes in market conditions or project concept that occur subsequent to the completion of the services VIII. Limitation of Liability and Warranty: (a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING LOST PROFITS OR FRUSTRATION OF BUSINESS EXPECTATIONS, WHETHER ARISING OUT OF SUCH PARTY'S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE 3 Gold Mountain Golf Club Transition Agreement (b) THE CITY ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR MANAGER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION V OR LIABILITIES ARISING FROM MANAGER'S TORTIOUS CONDUCT, MANAGER AND ITS PERSONNEL SHALL NOT BE LIABLE TO CITY FOR ANY CLAIMS, LIABILITIES OR EXPENSES FOR CLAIMS MADE BY THE CITY RELATING TO THIS AGREEMENT FOR AN AGGREGATE AMOUNT IN EXCESS OF THE COMPENSATION PAID BY THE CITY TO MANAGER UNDER THIS AGREEMENT (c) EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, MANAGER DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON - INFRINGEMENT IX. General Conditions: A Reports and Information- When requested by the City, Manager shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form reasonably requested Manager shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts B Representations and Warranties- Each Party represents and warrants to the other that (i) such party has the full power and legal right to execute, perform and observe all of the provision under this Agreement and (ii) this Agreement constitutes a valid and binding obligation of such parry and does not constitute a breach or default under such party's governing documents or the terms, conditions or provision of any agreement or instrument to which such party is a party or any applicable law C Confidentiality All written information submitted by the City to the Manager in connection with the services performed by the Manager under this Agreement will be safeguarded by the Manager to at least the same extent as the Manager safeguards like information relating to its own business If such information is publicly available or is already in Manager's possession or known to it, or is rightfully obtained by the Manager from third parties, Manager shall bear no responsibility for its disclosure, inadvertent or otherwise. D Ownership and Use of Records and Documents- All data, documents and files created by Manager under this Agreement may be stored at Manager's office in Seattle, Washington Manager shall make such data, documents, and files available for the City's inspection and review upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City's offices Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost. All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Manager pursuant to this Agreement exclusively for the City's 4 Gold Mountain Golf Club Transition Agreement use, are instruments of service with respect to the project and are the property of the City Any reuse by the City for other than the specific purpose intended will be at City's sole risk E Work Performed at Manager's Risk Manager shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub - Managers in the performance of the work hereunder and shall utilize all protection necessary for that purpose All work shall be done at Manager's own risk, and Manager shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work F Place of Work The Manager shall perform the work authorized under this Agreement at its offices in Seattle, Washington Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties G Entire Agreement This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement H Severability Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect I Modification- This Agreement may only be modified by written instrument signed by both Parties. J Written Notices- All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1 st class mail, or by personal service, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing If to City City of Bremerton City Hall, 345 6th Street, Suite 600 Bremerton, WA 98337 Attention. Director of Financial Services Telephone (360) 473 -5722 Facsimile 360) 473 -5200 If to Manager Columbia Hospitality, Inc 2223 Alaskan Way, Suite 200 Seattle, WA 98121 Attention- John Oppenheimer K. Waiver Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. 5 Gold Mountain Golf Club Transition Agreement L. Non - Waiver of Breach- The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect M Compliance with Laws Manager shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement N Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. O Attorneys' Fees In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney's fees P Assignment: Any assignment of this agreement by the Contractor without the written consent of the City shall be void, such consent not to be unreasonably withheld or delayed Notwithstanding the foregoing, Manager may subcontract portions of the services to contractors or subcontractors selected and retained by Manager in the ordinary course Manager shall remain fully responsible for the acts or omissions of any contractor or subcontractor retained by Manager to provide services hereunder. Q. Non - Solicitation The City shall not source, recruit, or solicit for employment with the City or any other entity, including affiliates of the City, any employee of Manager until the earlier of twenty -four (24) months after the expiration or termination of this Agreement or twenty -four (24) months after the employee has ceased to be employed by Manager R Cooperation The City and its employees and contractors shall cooperate with Manager in the performance by Manager of its services hereunder, including providing Manager with timely access to data, information and the personnel and consultants of the City X. Nondiscrimination: Manager shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or sexual orientation except for employment actions based on bona fide occupational qualification Xl. Termination: T1us Agreement shall remain in force until completion and acceptance of the services or terminated by written instrument upon mutual consent This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non - performing Party does not commence correction of the failure of performance within thirty (30) days of the terminating Party's sending notice to the non - performing Party Any Notice by Manager shall include a report showing the status of all items listed in the Scope of Work current through the termination date A Excusable Delays The right of Manager to proceed shall not be terminated nor shall Manager be charged with liquidated damages for any delays in the completion of the work due to 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency, 2) 6 Gold Mountain Golf Club Transition Agreement any acts of the City or its managers, employees or contractors, or other public agencies causing such delay, and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Manager, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual seventy PROVIDED, HOWEVER, that the Manager must promptly notify the City within ten (10) calendar days in writing of the cause of the delay If, on the basis of the facts and the terns of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay B Rights Upon Termination In the event of termination, the City shall pay for all services performed by the Manager to the effective date of termination, as described on a final invoice submitted to the City After termination, the City may take possession of all records and data prepared by Manager exclusively for the City under this Agreement and within the Manager's possession, which may be used by the City without restriction Any such use not related to the project which Manager was contracted to perform shall be without liability or legal exposure to the Manager C Survival Notwithstanding anything to the contrary in this Agreement, all provisions of this Agreement that are expressly or by implication to remain in force after the termination of this Agreement (including Sections IV, V, VII, VIII, IX B — D, IX N, IX 0, IX Q, and XI B) will survive the expiration or earlier termination of this Agreement CITY OF BREMERTON COLUMBIA HOSPITALITY, INC By By its its Date Date Approved as to form Attest- Bremerton City Attorney City Clerk 7 Gold Mountain Golf Club Transition Agreement Exhibit A Scope of Work A. Sales and Marketing 1 Assist the City with the oversight and direction of group sales and marketing 2 Completing a comprehensive annual sales and marketing plan for 2013 by December 1, 2012 to include a A calendar of special promotions and tournaments b. Special packages with area hotels c Cross - marketing and sales strategies with the Kitsap Conference Center team d A focus on weddings and social business representing Gold Mountain at wedding shows and adding it to the Columbia Wedding Collection e An improved websrte and digital marketing with a focus on Facebook, guest messaging, guest surveys, golf packages, Stay and Play packages, and access to the CH database access f Regular websrte audit and websrte search engine optimization g Collaboration with Kitsap Visitor and Convention Bureau and the Seattle Convention and Visitors Bureau h Introduction to CHI key accounts i Including Gold Mountain in the CHI sales manager referral program J Exposure to cruise passengers at the CTA concierge desk, perhaps provide free golf balls that double as ferry tokens B. Human Resources / Training and Development 1 Interview all current golf course personnel and prepare for transition 2. Prepare new employee orientation for all anticipated golf course personnel 3 Customize golf operations service standard training 4. Conduct service standard training for all golf course personnel 5 Identify and train certified trainers 6. Conduct a second day of orientation for all managers focusing on leadership responsibilities and processes C. Accounting 1 Audit all present purchasing agreements with the goal to include Gold Mountain in Manager's national purchasing agreements and local vendor relationships 2 Create a comprehensive budget by December 1 3 Audit all accounting system hardware /software including payroll system 4 Develop internal control systems 5 Develop all purchasing policies /procedures 6 Assist the City in acquiring or transferring all necessary operating licenses and permits 7 Develop appropriate risk management programs 8 Assist the City in establishing appropriate banking relationships /support D. Technology 1 Audit all communication systems 2 Audit all information technology hardware software 3 Audit all computer maintenance agreements 4 Audit PCI compliance 5 Provide a multiyear capital replacement plan E. Food and Beverage 1 Review and revise food and beverage concepts, menus and standard operating procedures 2 Review food and beverage cost control systems 3 Develop menu item standards and recipes 4 Review food handling processes and kitchen cleanliness standards F. Maintenance 1 Assist the City in seeking and negotiating a greens maintenance agreement with Ed Faulk Operations, LLC 2 Auditing the property's mechanical systems and equipment and provide a multiyear capital plan GOLF COURSE MANAGEMENT AGREEMENT Gold Mountain Golf Club This Golf Course Management Agreement ( "Agreement ") is entered into on the date fully executed below by and between the City of Bremerton, a Washington municipal corporation ( "Owner"), and Columbia Hospitality, Inc, a Washington corporation ( "Manager ") or its permitted assignee RECITALS A. Owner is the owner of certain real property and the buildings, facilities and other improvements located thereon, which collectively are commonly known as the Gold Mountain Golf Club and located at 7263 W Belfair Valley Road, Bremerton, Washington (the "Club Facilities ") The Club Facilities are situated on a portion of the following sections • W1 /2 Section 1, T23N, R1W • NE1 /4 NEI /4 Section 2, T23N, R1 W • SEIA SETA Section 35, T24N, R1W • SW1 /4 Section 36, T24N, R1W and are more particularly delineated on the aerial photo -map attached as Exhibit A B As of the Effective Date, the Club Facilities consist of (1) two 18 -hole golf courses, (n) driving range and practice and putting greens, (iii) a golf pro shop, including a retail store, locker rooms, cart storage and bag storage, (iv) a full service restaurant and bar, including meeting and event space, and (v) various buildings and related facilities used for storage of maintenance and related golf course equipment, golf carts and other golf - course related supplies C. Manager is knowledgeable and experienced in the management and operation of resort facilities similar to the Club Facilities D. Owner wishes to engage Manager to promote, operate and manage the Club Facilities, and Manager is willing to provide such services pursuant,to the terms and conditions set forth below AGREEMENTS NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, Owner and Manager agree as follows ARTICLE I INTERPRETATION 1.01 Definitions All initially capitalized terms used and not otherwise defined in this Agreement shall have the meanings set forth below 1 EXHIBIT B Gold Mountain Golf Club Management Agreement "Affiliate" means any other individual, corporation, partnership, limited liability company or other entity directly or indirectly controlling, controlled by, or under common control with Manager or Owner, as applicable "Annual Plan and Budget" has the meaning set forth in Section 5 04 "Annual Statements" has the meaning set forth in Section 5 02 "Applicable Laws" means all laws, statutes, ordinances, regulations, codes, bylaws, orders, judgments, directives, rules, guidelines, orders and other requirements of any governmental or regulatory authority having jurisdiction over Owner and the Club Facilities including Environmental Laws and those laws, statutes, codes, rules and other requirements related to employees, health and safety and the accessibility of public facilities to persons with disabilities "Base Management Fee" has the meaning set forth in Section 4 01 "Capital Improvement" means a replacement, renewal or addition to FF &E or an alteration, improvement or replacement to the structural, mechanical, electrical, heating, ventilation, air conditioning, exterior, plumbing or vertical transportation elements of the Club Facilities, the cost of which is capitalized pursuant to GAAP "Capital Reserve Account' ' has the meaning set forth in Section 6 02(a) "Centralized Services" means accounting human resources training and development, public relations, employee relations, payroll processing, information technology and other related services as provided in accordance with Section 2 04 "Centralized Service Fees" has the meaning set forth in Section 4 04 "Club Facilities" has the meaning set forth in Recital A "Confidential Information" means (a) the terms of this Agreement, (b) all information that one party receives from the other party relating to the disclosing party's business and that is designated in writing as confidential by the disclosing party and (c) Manager's Intellectual Property Notwithstanding the foregoing, the following information is not Confidential Information information that (i) comes into the public domain through no fault of the receiving party, (ii) was lawfully disclosed to the receiving party by a third party, (iii) was disclosed by the receiving party with the disclosing party's written consent, (iv) was independently developed by the receiving party, or (v) was rightfully known by the receiving party prior to entering into this Agreement "Environmental Laws" has the meaning set forth in Section 11 01 "Event of Default" has the meaning set forth in Section 3 02 "FF &E" means furniture, fixtures and equipment "Force Majeure" means acts of God, acts of war, civil disturbance, governmental action (including the revocation or refusal to grant licenses or permits, where such revocation or refusal is not due to the fault of the party whose performance is to be excused for reasons of Force Maleure), strikes, lockouts, fire, unavoidable casualties, performance of approved Capital Improvements that have an adverse effect on income generating areas of the Club Facilities, or any other causes beyond the 2 Gold Mountain Golf Club Management Agreement reasonable control of the party claiming such event occurred (excluding, however, (a) lack of financing, (b) financial condition or (c) general economic and/or market factors)) "GAAP" means generally accepted accounting principles consistently applied "Gross Operating Profit" means the amount by which Gross Revenue for the applicable period exceeds Operating Expenses for that same period "Gross Revenue" means all revenues, receipts, income and sale proceeds of every kind derived directly or indirectly from the Club Facilities as determined in accordance with GAAP Gross Revenue shall include, but not be limited to, greens fees, cart fees (motorized and pull cart), club rentals, pro shop sales, income from the rental of meeting and event space or other facilities or services, license, lease and concession fees and rentals paid for any commercial, retail and other space in the Club Facilities (not including gross receipts of licensees, lessees and concessionaires), income from golf lessons and instruction, income from parking, and food and beverage sales provided by the Club Facilities, in and from both on and off -site locations, wholesale and retail sales of the Club Facilities' merchandise, and service charges Notwithstanding the foregoing, Gross Revenue from the Club Facilities shall not include the following gratuities to the Club Facilities' employees, federal, state or municipal excise, sales or use taxes or any other taxes collected directly from patrons, guests or customers or included as part of the sales price of any goods or services, proceeds from the sale of FF &E (which shall be deposited into the Capital Reserve Account), interest received or accrued with respect to the funds in the Operating Account(s) and Capital Reserve Account, any refunds, rebates, discounts and credits of a similar nature, given, paid or returned in the course of obtaining Gross Revenues or components thereof, insurance proceeds, condemnation proceeds, or any proceeds from any transfer of the Club Facilities "Hazardous Materials" has the meaning set forth in Section 11 01 "Incentive Management Fee" has the meaning set forth in Section 4 02 "Initial Working Capital Deposit" has the meaning set forth in Section 5 07 "Manager" means Columbia Hospitality, Inc or its permitted assigns "Manager's Intellectual Property" has the meaning set forth in Section 12 04 "Manager's Trademarks" has the meaning set forth in Section 12 01 "Monthly Statement" has the meaning set forth in Section 5 01 "Net Operating Income" means the amount by which Gross Operating Profit for the applicable period exceeds (i) the Base Management Fee, (n) insurance costs and expenses for the insurance coverages required under Article VII together with any associated deductibles, and (iii) real estate and personal property taxes, if any, for that same period "Operating Account(s)" has the meaning set forth in Section 5 03 "Operating Expenses" means all ordinary and necessary expenses, including, without limitation, Reimbursable Expenses, incurred in the operation of the Club Facilities, including without limitation, salaries, wages and benefits of the Club Facilities' personnel, utilities, administrative expenses, centralized service fees, and advertising and marketing expenses, all as determined in accordance with GAAP, but excluding (a) real estate and personal property taxes, (b) the Base Management Fee, (c) the 3 Gold Mountain Golf Club Management Agreement Incentive Management Fee, (d) payments pursuant to equipment leases or other forms of FF &E financing, (e) insurance costs and expenses for property and liability coverages required under Article VII together with associated deductibles, (f) amounts expended on Capital Improvements, including, without limitation any funding into or expenditures from the Capital Reserve Account, (g) depreciation and amortization expenses, and (h) costs and expenses of Owner or Owner's personnel "Operating Standard" means the manner in which the Club Facilities are operated, which shall be consistent with the standards and practices maintained at the hotels and other facilities currently operated by Manager "Operating Year" means each 12 -month calendar year period, provided that the first Operating Year shall be the partial year beginning on the Commencement Date and ending on the following December 31 and, if this Agreement is terminated on a date other than December 31 the partial year ending on the date of termination "Owner" means the City of Bremerton, a Washington municipal corporation "Reimbursable Expenses" means all costs and expenses advanced by Manager or its Affiliates on Owner's account or for or on behalf of Owner in the ordinary course of providing services under this Agreement 1.02 Captions, Numbering and Headings Captions, numbering and headings of Articles, Sections and Exhibits in this Agreement are for convenience of reference only and shall not be considered in the interpretation of this Agreement References in this Agreement to Articles, Sections and Exhibits shall be deemed to be references to such Articles, Sections and Exhibits in this Agreement unless otherwise expressly specified 1.03 Number; Gender Whenever required by the context, the singular shall include the plural, the neuter gender shall include the male gender and female gender, and vice versa 1.04 Exhibits All Schedules and Exhibits referenced in this Agreement are incorporated by this reference as if fully set forth in this Agreement, and all references to this Agreement shall be deemed to include all such Schedules and Exhibits 1.05 No Construction Against Drafter This Agreement has been negotiated and prepared by Owner and Manager and their respective attorneys and, should any provision of this Agreement require judicial interpretation, the court interpreting or construing such provision shall not apply the rule of construction that a document is to be construed more strictly against one party 4 Gold Mountain Golf Club Management Agreement ARTICLE II MANAGEMENT SERVICES 2.01 Appointment of Manager / Manager's Management Responsibilities Subject to the terms and conditions of this Agreement, Owner engages Manager, as an independent contractor, to service, operate, promote and manage the Club Facilities for and on the account of Owner, as agent for Owner, and grants Manager the exclusive authority, right and full control to service, operate, promote and manage the Club Facilities and the personnel associated with the Club Facilities on a day -to -day basis consistent with the Operating Standard at Owner's sole cost and expense Manager hereby accepts such engagement and agrees to service, operate, promote and manage the Club Facilities for the account and on behalf of Owner, as Owner's agent, in accordance with the terms of this Agreement Without limiting the foregoing, Manager shall have sole and exclusive authority to do the following (a) manage all aspects of the Club Facilities' human resource functions, including terms and conditions of employment, recruiting, screening, selection, hiring, training, compensation, employee benefits, supervision, discipline, dismissal and replacement, (b) establish all relevant prices, price schedules, rates, rate schedules, rents, lease charges and concession charges for all areas of the Club Facilities, (c) negotiate and administer, in the name and on behalf of Owner, leases, licenses and concession agreements for gift shops or other minor areas appurtenant to the Club Facilities, (d) provide marketing and sales services for the Club Facilities, (e) obtain and keep in full force and effect in Manager's name or in Owner's name, as may be required by Applicable Laws, any and all license and permits to the extent the same is within the control of Manager, (f) negotiate, enter into, and administer, in the name and on behalf of Owner, contracts, licenses and purchase orders for services, inventories, provisions, and supplies that are necessary for maintenance and operation of the Club Facilities, and use the same in the management and operation of the Club Facilities, (g) negotiate, enter into, and administer, in the name and on behalf of Owner, contracts for the use of meeting areas by groups and individuals, (h) institute in its own name or, with Owner's written consent, in the name of Owner or the Club Facilities any and all legal actions or proceedings necessary for, or incident to, operation and maintenance of the Club Facilities, (i) maintain the facilities and equipment associated with the Club Facilities in good repair and condition, 0) collect all charges, rent and other amounts due from guests, patrons, licensees and concessionaires of the Club Facilities and use those funds, together with funds from other sources that may be available to the Club Facilities, first to pay all Operating Expenses of the Club Facilities on behalf of Owner and then any other financial obligations of the Club Facilities as Owner may reasonably direct, and 5 Gold Mountain Golf Club Management Agreement (k) perform such other tasks acceptable to Manager as are customary and usual in the operation of a Club Facilities of a class and standing equal to the Club Facilities Notwithstanding the foregoing, unless otherwise part of the Annual Plan and Budget approved by Owner in accordance with Section 5 02 , Manager shall not enter into any agreement in the name of Owner (i) that creates an obligation of Owner that is greater than twenty -five thousand dollars ($25,000) or (ii) whose term exceeds one year and cannot be terminated without liability on sixty (60) days' written notice without Owner's prior written consent 2.02 Personnel In furtherance of Manager's obligation to manage the Club Facilities' human resource functions, Manager shall have sole and exclusive responsibility for (a) identifying, interviewing, selecting, appointing, hiring, retaining, supervising, directing, disciplining and firing the Club Facilities' general manager(s) and other senior managers, and all other personnel necessary for the operation of the Club Facilities and the Club Facilities' systems and facilities, and (b) adopting and offering to personnel, and administering on Owner's behalf, employee benefit plans determined by Manager All personnel associated with the Club Facilities shall be employees of Manager, provided that all costs associated with such personnel shall be an Operating Expense Costs and expenses related to personnel may include, but are not limited to, benefit administration costs, payroll processing, recruiting, software licensing fees and compliance with all Applicable Laws, including, without limitation, the Consolidated Omnibus Budget Reconciliation Act (COBRA) and the Worker Adjustment and Retraining Notification (WARN) Act 2.03 Sales and Marketing In connection with its management of the Club Facilities, Manager shall provide marketing and sales services, including (a) development (as part of the Annual Plan and Budget) and implementation of a sales and marketing program for the Club Facilities, (b) production and distribution of promotional materials, (c) development and implementation of promotional offers or programs, (d) attendance of the Club Facilities' personnel at relevant conventions, meetings, seminars and conferences, (e) selection of, engagement, and guidance to, as required, advertising, creative and public relations personnel and (f) updating and maintenance of the Club Facilities' website Marketing and sales services provided under this Section 2 03 may be provided by Manager either solely on behalf of the Club Facilities or in conjunction with other similar Manager- operated properties (in which event such services would be centralized and billed to the Club Facilities in accordance with Section 4 04 ) 2.04 Centralized Services Owner acknowledges and agrees that in performing services under this Agreement (i) Manager may elect from time to time to perform certain functions (the "Centralized Services ") as defined in Section 1 01 on a centralized basis using the personnel and resources of Manager's or its Affiliates' corporate office or other Manager - managed properties and (u) the costs of any such centralized services shall be allocated fairly and equitably among the Manager - managed properties benefitting from such services Owner further agrees that Manager may use its reasonable discretion to identify and determine from time to time those functions best performed on a centralized basis and that the costs of providing such Centralized Services to the Club Facilities together with a reasonable profit shall be billed to, and paid by, Owner as an Operating Expense in accordance with Section 4 04 6 Gold Mountain Golf Club Management Agreement 2.05 Conditions to Manager's Obligations Notwithstanding anything contained in this Agreement, Manager shall be excused from, and may immediately suspend its performance of, its obligations under this Agreement (a) To the extent and whenever Manager shall be prevented from compliance with such obligations by events of Force Maleure, (b) To the extent of any breach of any representation, warranty or covenant contained in this Agreement or default hereunder by Owner, or (c) In the event Owner fails to provide the working funds necessary to operate the Club Facilities in a manner consistent with the Operating Standard It is expressly agreed and understood that each and every provision contained in this Agreement pursuant to which Manager is excused from its obligations under this Agreement shall operate without prejudice to any right or remedy that Manager may have hereunder, at law or in equity ARTICLE III TERM 3.01 Initial Term and Renewal Manager's services under this Agreement shall commence on January 1, 2013 (the "Commencement Date ") and, unless earlier terminated in accordance with this Agreement, shall continue until the third (3` anniversary of the Commencement Date (the "Initial Term ") Upon expiration of the Initial Term, this Agreement shall automatically renew for successive two -year renewal terms (each, a "Renewal Term," and together with the Initial Term, the "Term "), unless either party provides written notice of its intent not to renew ninety (90) days prior to expiration of the Initial Term 3.02 Termination - Event of Default In addition to the other termination rights set forth in this Agreement, this Agreement may be terminated prior to expiration under the following circumstances (each an "Event of Default ") (a) By either party, if the other party materially breaches any term of this Agreement or defaults in the performance of any obligation under this Agreement that can be cured with the payment of money and fails to cure such breach within ten (10) days following notice thereof by the non - defaulting party, (b) By either party, if the other party materially breaches any term of this Agreement or defaults in the performance of any obligation under this Agreement that cannot be cured with the payment of money, and fails to cure such breach or default within thirty (30) days following notice thereof by the non - defaulting party, or, in the event that it is not possible to cure such breach or default within thirty (30) days, the defaulting party fails to commence to cure the breach or default within the 30 -day period and thereafter proceed diligently and in good faith to cure such breach or default within ninety (90) days, (c) By Manager, if Owner fails to timely deposit amounts requested by Manager in accordance with Sections 5 07 or 6 02 , or 7 Gold Mountain Golf Club Management Agreement (d) By either party, in the event of an appointment of a receiver, trustee or liquidator of the other party or of all or any part of its assets, or the filing of a voluntary petition in bankruptcy, the making of a general assignment for the benefit of creditors, the filing of a petition or an answer seeking reorganization or arrangement with creditors or bankruptcy petition or similar petition under state law, and such appointment, filing, assignment, or petition is not vacated within sixty (60) days The non - defaulting party shall, in addition to its right of termination, be entitled to pursue all other available remedies at law or equity as a result of an Event of Default, including, in the case of a default by Owner, accrued and owing management fees and reimbursable expenses through the effective date of termination 3.03 Termination - Convenience From and after expiration of the Initial Term, Owner or Manager may terminate this Agreement without penalty or liability by providing the other party one year's prior written notice 3.04 Termination — Casualty or Condemnation Event Owner may terminate this Agreement in accordance with Sections 8 01 or 8 02 provided that the effectiveness of any such termination occurring prior to expiration of the first full Operating Year (December 31, 2013) shall be conditioned on Owner's payment to Manager of an early termination fee calculated in accordance with table below ( "Early Termination Fee ") a a. '`", #. �``��r �'�5.:.,..:� r.- �%0"A q Earl Termination Fee - " r ,Effective erminahon Date, ��� ��� �;,� yy `" n� secs rz: �a�gx 'v��,r �mxu.� January 1, 2013 —March 31, 2013 $100,000 April 1, 2013 — June 30, 2013 $75,000 July 1, 2013 — September 30, 2013 $50,000 October 1, 2013 — December 31, 2013 $25,000 3.05 Effect of Termination Upon expiration or earlier termination of this Agreement, the parties agree that (a) except for costs and expenses caused by Manager's Event of Default or as otherwise set forth in Section 7 03 , any expenses arising as a result of the termination shall be for the sole account of Owner and Owner shall reimburse Manager on receipt of any invoice from Manager for any termination expenses, (b) within thirty (30) days following termination, Owner shall pay Manager any and all fees or other amounts owed under this Agreement through to and including the effective date of termination, including any applicable Early Termination Fee, (c) Manager shall peacefully vacate and surrender the Club Facilities to Owner, (d) Manager shall assign and transfer to Owner (1) all books and records of the Club Facilities in Manager's custody or control, including those contracts, leases and other agreements regarding the Club Facilities that are assignable and not Manager's Intellectual Property and (n) all right, title and interest in and to all permits and licenses, if any, held by Manager in connection with the Club Facilities, to the extent such transfer or assignment is permitted under Applicable Laws, (e) Owner shall honor all business confirmed for the Club Facilities with reservation dates after the effective date of termination, and (f) as of the effective date of termination, Manager shall remove all Manager's Intellectual Property Upon expiration or earlier termination of this Agreement, the parties' obligations with respect to this Agreement will terminate, except as to liabilities or claims of either party that have accrued or arisen before the termination date Notwithstanding the foregoing, all provisions of this Agreement that are expressly or by 8 Gold Mountain Golf Club Management Agreement implication to remain in force after the termination of this Agreement (including Articles X, MI and XIII and Sections 3 04 7 03 7 04, 1101, 14 02, 14 03, 14 04, 14 06, 14 07, 14 12 and 14 13 will survive the expiration or earlier termination of this Agreement ARTICLE IV COMPENSATION 4.01 Base Management Fee From and after the Commencement Date, Owner shall pay Manager for services provided under this Agreement a monthly base management fee of five percent (5 %) of the Club Facilities' Gross Revenue (the "Base Management Fee ") The Base Management Fee shall be paid monthly (prorated for any partial month) on or before the tenth (10`'') day of the month immediately following the month during which services were rendered. 4.02 Incentive Management Fee From and after the Commencement Date and in addition to the Base Management Fee, Owner shall pay Manager for services provided under this Agreement an annual Incentive Management Fee equal to twenty percent (20 %) of the Club Facilities' Net Operating Income in excess of Six Hundred Thousand and No /100 Dollars ($600,000 00) (the "Incentive Management Fee ") The annual Incentive Management Fee shall be computed and paid quarterly on a cumulative year -to -date basis based on year - to- date figures set forth in the Monthly Statements (with any overpayments for the year to date credited against the Base Management Fee) and a final computation and payment shall be made with the Annual Statements provided hereunder 4.03 Reimbursable Expenses From and after the Commencement Date and in addition to the Base Management Fee and Incentive Management Fee, Owner will reimburse Manager for the following Reimbursable Expenses, (a) corporate employees or employees of other Manager- operated properties serving functions associated with the Club Facilities that would otherwise be served by property-level staff, (b) all reasonable third party costs and expenses incurred and paid by Manager and its personnel (corporate or otherwise), including, without limitation, transportation costs, long distance and postage while performing under this Agreement, (c) payments made by Manager to thud parties for goods and services in the ordinary course of the Club Facilities' operation, and (d) taxes and similar assessments levied against any reimbursement payable to Manager, including any applicable withholding taxes Owner will pay, within thirty(30) days after the notice date, expenses to be reimbursed to Manager in accordance with this Section 4 03 4.04 Centralized Service Fees From and after the Commencement Date, Manager reserves the right to charge certain fees and charges associated with any Centralized Services provided by Manager or its Affiliates in accordance with Section 2 04 ( "Centralized Service Fees ") Centralized Service Fees shall be paid monthly (prorated for any partial month) in arrears, no later than the 15' day of each month commencing with the Commencement Date Any such Centralized Service Fees will be allocated equitably among participating Manager- operated properties 9 Gold Mountain Golf Club Management Agreement 4.05 Payment Amounts payable to Manager or its Affiliates under this Agreement shall be paid in immediately available funds without reduction for taxes or other assessments Payment shall be made to the place designated for the giving of notice under Section 14 04 or to such other place designated by Manager At Manager's option, payments due Manager or its Affiliates may be made by Manager out of the appropriate Operating Account(s) 4.06 Club Facilities Accommodations and Amenities In addition to the fees outlined above, Owner shall provide Manager and its staff discounted use of the Club Facilities and their amenities on a "space available basis" for leisure utilization and complimentary use of the Club Facilities for business related visits ARTICLE V ACCOUNTING 5.01 Operating Expenses Paid by Owner All actions of Manager in the performance of its obligations and expenses incurred under this Agreement, including all wages, benefits and other payroll expenses of the Club Facilities' personnel, shall be for, and on behalf of, Owner and for its account, and all debts and liabilities arising in the course of the Club Facilities' operations, including, without limitation, any and all costs related to claims by the Club Facilities' personnel concerning their employment, shall be the obligation of Owner, and Manager shall not be liable for any of such expenses, debts, liabilities and obligations by reason of its direction, management, supervision and operation of the Club Facilities on Owner's behalf 5.02 Accounting Matters During the Term, Manager shall maintain separate books of account and other financial records and systems for the Club Facilities that collect and reflect the results from the Club Facilities in all material respects in accordance with GAAP All books of account and other financial records of the Club Facilities shall be available to Owner at the Club Facilities at reasonable hours for examination, inspection and copying upon reasonable notice On or before the twentieth (20'') day of each month that follows a month during which the Club Facilities were open and operating, Manager shall furnish to Owner a profit and loss statement for each Club Facilities that contains Gross Revenues, Operating Expenses, Gross Operating Profit and Net Operating Income for the preceding month and the year to date (the "Monthly Statements ") Within thirty (30) days following the end of each Operating Year, Manager shall furnish to Owner the cumulative year -end statements that detail calculations and payments of the fees payable to Manager hereunder (the "Annual Statements ") The parties shall, within thirty (30) days after Owner's receipt of the Annual Statements, make any adjustments, by cash payment, in the amounts paid or retained for such Operating Year as are needed because of the final figures set forth in the Annual Statements All out -of- pocket costs and expenses incurred in the preparation of any statements, schedules, computation and other reports required under this Article V or any or provision of this Agreement shall be an Operating Expense of the respective Club Facilities 5.03 Accounts and Expenditures e Club Facilities' operations shall be deposited b Manager in All funds derived from the p p y g separate bank accounts in a bank or banks designated by Manager, subject to Owner's reasonable 10 Gold Mountain Golf Club Management Agreement approval (the "Operating Accounts ") Withdrawals from the Operating Accounts shall be made solely by representatives of Manager whose signatures have been authorized by Owner Reasonable petty cash funds shall be maintained at the Club Facilities Manager shall cause disbursements to be made from the funds collected and deposited in the Operating Accounts in the manner and order designated by Manager, in the exercise of its commercially reasonable discretion Debts and liabilities incurred by Manager hereunder as a result of its operation and management of the Club Facilities, whether asserted before or after expiration or earlier termination, will be paid by Owner to the extent funds are not available for that purpose from Gross Revenue that has been deposited in the Operating Accounts or petty cash Manager shall not be obligated to incur any liability or obligation with respect to the Club Facilities, and Manager shall not be responsible for paying any obligation unless the amounts in the Operating Accounts, together with other funds provided by Owner, are sufficient to make such payment 5.04 Annual Plan and Budget On or before August I' of each Operating Year, Manager shall prepare and provide to Owner for its review Manager's initial estimates (without supporting detail) of Gross Revenue and Operating Expenses for the ensuing Operating Year (the "Initial Annual Estimates ") On or before September 1' of each Operating Year, Manager shall prepare and provide to Owner for its review and approval Manager's proposed operating plan and budget for the Club Facilities, which operating plan and budget shall contain, among things, Manager's Initial Annual Estimates (revised as necessary), as well as estimated Gross Operating Profit and Net Operating Income, proposed Capital Improvements and proposed expenditures from the Capital Reserve Accounts for the ensuing Operating Year (the "Annual Plan and Budget ") If Owner disapproves of the Annual Plan and Budget, it shall identify the line items it disapproves and the remaining items shall be approved Until such time as Owner and Manager are able to reach complete agreement over the Annual Plan and Budget, Manager may operate the Club Facilities under the proposed form of Annual Plan and Budget substituting those items still under dispute (other than fixed charges over which Manager has no control) with items taken from the prior Operating Year's Annual Plan and Budget adjusted to account for changes in anticipated occupancy and inflation and known cost increases For the first Operating Year (Commencement Date — December 31, 2013), Manager shall operate the Club Facilities in accordance with the budget proposed by Manager and adopted by Owner during the Owner's annual budget process for the 2013 budget 5.05 Compliance with Annual Plan and Budget Once the Annual Plan and Budget is approved by Owner or deemed to be approved, Manager may incur the expenditures and implement the provisions of the Annual Plan and Budget and, absent prior approval from Owner, Manager may not exceed amounts set forth in the Annual Plan and Budget (in the aggregate) by more than fifteen percent (15 %), provided, however, that the preceding cap shall not apply to line item increases directly attributable to unplanned increases in occupancy or other revenue - producing activities Owner and Manager acknowledge and agree that the Annual Plan and Budget is predicated on revenues and operating expenses estimated at the time of adoption of the Annual Plans and Budgets The parties agree that adjustments to the Annual Plan and Budget may be required for variable expenses and events not reasonably within the control of Owner or Manager All updates and revisions to the Annual Plan and Budget shall be submitted to Owner for review and approval in the manner described in this Section 5 05 5.06 Emergency Expenditures Notwithstanding anything to the contrary in this Article or elsewhere in the Agreement, Manager may make expenditures in addition to those provided in the Annual Plan and Budget without the prior approval of Owner if Manager determines in its reasonable discretion that such expenditures are necessary to protect life or property, to comply with Applicable Laws or to avoid suspension of any 11 Gold Mountain Golf Club Management Agreement service to the Club Facilities, provided that Manager uses commercially reasonable efforts to confer with Owner prior to any such expenditure and that THG, as soon as reasonably possible, provides Owner written notice of any such expenditure 5.07 Working Capital Owner acknowledges and agrees that it has sole responsibility for the funding of the Annual Plan and Budget All costs and expenses with respect to the operation and ownership of the Club Facilities shall be borne solely by and timely paid by Owner Prior to the commencement of Manager's services under this Agreement, Owner shall deposit no less than Three Hundred Thousand and No /100 Dollars ($300,000 00) into the Operating Account(s) to fund the transition in operations to Manager and its systems (the "Initial Working Capital Deposit ") From and after the Commencement Date, Owner shall ensure that sufficient working capital funds exist and are available to Manager at all times to meet the operating needs of the Club Facilities, which amount shall be no less than two (2) months' average Operating Expenses of the applicable Club Facilities as determined under the applicable Annual Plan and Budget From time to time during the Term, on Manager's request, Owner shall deposit funds into the Operating Accounts sufficient to allow the uninterrupted operation of the Club Facilities in accordance with the terms of this Agreement and in a manner consistent with the Operating Standard Owner's deposit shall be made within thirty (30) days after receiving Manager's funding request ARTICLE VI REPAIRS, MAINTENANCE AND CAPITAL IMPROVEMENTS 6.01 Routine Repairs and Maintenance In furtherance of Manager's obligation to maintain the Club Facilities, Manager shall make or cause to be made such routine maintenance, repairs and minor alterations to the Club Facilities, including, without limitation, the golf course greens and surrounding areas, as it determines are necessary for such purposes and as more thoroughly specified in Exhibit B Such routine maintenance, repairs and alterations shall include only those items that are normally expensed under GAAP and shall be paid from the Operating Account(s) Manager shall comply with RCW Chapters 39 04, 39 12 and 39 80 relating to public works contracting, if and as applicable, for maintenance and repairs In this regard, Manager will periodically seek the advice of Owner in such matters and Owner will provide administrative and purchasing support to Manager if requested Manager may not undertake physical alterations (excluding paint and wall and floor finishes) to the Club Facilities unless set forth in an Annual Plan and Budget without prior written consent of Owner 6.02 Capital Improvements and the Capital Reserve Account (a) Owner acknowledges and agrees that as the Club Facilities age, certain Capital Improvements will be required to maintain and operate the Club Facilities' facilities (including the buildings, grounds, FF &E and operating supplies) in a manner consistent with the Operating Standard To facilitate the funding of such needed Capital Improvements at the Club Facilities, Manager shall deposit, as a minimum, an amount equal to four percent (4 %) of the Gross Revenue in capital reserve account established by Manager for the Club Facilities in a bank or banks designated by Manager, subject to Owner's approval (the "Capital Reserve Account "). (b) Funds deposited in the Capital Reserve Account shall be used solely for paying for Capital Improvements included and approved in the Annual Plans and Budgets or otherwise approved by Owner, provided, that Manager may make expenditures out of the Capital Reserve Account without 12 Gold Mountain Golf Club Management Agreement the prior approval of Owner if Manager determines in its reasonable discretion that expenditures are required to protect' life or property or comply with Applicable Laws If the estimate approved by Owner exceeds the Capital Reserve Account balance, Owner will provide the additional funds required for such work within fifteen (15) days after receiving Manager's funding request, and in the event Owner fails to make such deposit, Manager may terminate this Agreement upon ten (10) days' notice to Owner At the end of each Operating Year, any amount remaining in the Capital Reserve Accounts together with accumulated interest shall be carved forward and credited as an addition to the Capital Reserve Accounts otherwise established for the next succeeding Operating Year Manager shall have no obligation to supervise any Capital Improvement and all Capital Improvements shall be performed exclusively by Owner and its representatives and agents and not by Manager The cost of all Capital Improvements shall be borne solely by Owner, shall not be an Operating Expense, and shall be reimbursed from the Capital Reserve Account to the extent there are funds in that account (c) Any improvements, alterations, or changes made to the Golf Facilities in accordance with this Section 6 02 shall become a part of the Golf Facilities and shall belong to Owner upon expiration or sooner termination of this Agreement 6.03 Liens Subject to Manager's receipt of appropriate funding from Owner, Manager shall keep the Golf Facilities free from any liens arising out of any work performed, materials furnished, or obligations incurred by Manager ARTICLE VII INSURANCE AND CLAIMS 7.01 Insurance and Bonds (a) Manager shall, at all times during the Term and at Owner's sole cost and expense, furnish and maintain insurance and/or bonds of the types and with the coverages and deductibles described in Exhibit C with commercial insurance carriers having an A M Best rating of A -VII or better All insurance policies furnished and maintained under this Section 7 01 shall include, to the extent possible, a requirement that the insurer provide each party at least thirty (30) days' advance written notice of cancellation of the applicable policy Insurance maintained by Manager under this Section 7 01 shall be primary, and any insurance carried by Owner shall be excess and non - contributory On or before the Commencement Date and prior to the effective date of any replacement or renewal policies furnished and maintained hereunder, Manager shall provide Owner with certificates of insurance evidencing that the insurance requirements of this Agreement have been satisfied Owner and Manager acknowledge and agree that the policies and lunits described herein shall be subject to adjustment by mutual agreement of the parties from time to time during the Term to reflect changes in the insuring practices for facilities similar to the Club Facilities and changes in insurance products (b) Owner shall maintain appropriate property coverage for the Club Facilities Such policy(ies) shall include a replacement cost endorsement Upon request, Owner shall provide Manager certificates of insurance evidencing the insurance required to be maintained by Owner under this Section 7.02 Waiver of Subrogation Owner and Manager each waive any and all rights of recovery against the other (and against the affiliates, members, shareholders, managers, directors, officers, employees and representatives 13 Gold Mountain Golf Club Management Agreement of the other party) for any loss, damage or injury to such waiving party or its property or others under its control, to the extent such loss, damage or injury is covered by the insurance maintained by the parties or required to be obtained by the parties under this Agreement (including any related deductible or retention), provided that this waiver does not apply to any rights that any party may have to insurance proceeds from their respective insurance policies at the tune of such loss or damage Each party obtaining any of the insurance described in Section 7 01 shall, to the extent commercially possible, obtain from its insurance carriers a consent to such waiver 7.03 Indemnification (a) Each party shall defend, indemnify and hold the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all reasonable legal costs and attorney fees, arising or alleged to arise out of or in connection with its performance of this Agreement, except as provided in subsection (c) of this section (b) In the event of any claim related to the parties' performance of this Agreement, each party shall first seek application of the primary insurance described in Section 7 01 (c) All reserves, losses, costs, damages or expenses that fall within applicable self - insured or deductible limits as described in Exhibit C, together with any costs of administration of the Club Facilities' insurance program, shall be paid by Owner and shall be treated as a deduction in determining Net Operating Income (d) Notwithstanding subsection (c) of this Section, each party shall pay all claims, damages, losses, expenses, costs and attorney fees that a final court of competent . jurisdiction has found results or arises out of its negligent or willful misconduct (e) Should a court of competent, jurisdiction determine that this Agreement is subject to RCW 4 24 115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Manager and the Owner, Manager's liability hereunder (to the extent not otherwise covered by the insurance required to be maintained by Manager in accordance with Section 7 01) shall be only to the extent of Manager's negligence as determined by a final court of competent, jurisdiction (or otherwise agreed by Manager in a settlement reasonably approved by Manager) (f) In the event of any claim, damage, loss, expense or other cost arising under this Section, the parties agree to reasonably cooperate with, and provide reasonable assistance to, the other to first pursue and maximize possible insurance coverage and then, to the extent such claim, damage, loss, expense or other cost is not insured or falls within any applicable self - insured or deductible limits, defend and settle the claim, damage, loss, expense or cost The parties agree, at Owner's request, to negotiate in good faith revisions to this Section 7 03 in the event claims, damages, losses, expenses or costs during any complete Operating Year greatly exceed the Club Facilities' historical loss history 7.04 Waiver of Industrial Immunity SOLELY TO EFFECTUATE THE INDEMNITIES CONTAINED IN SECTION 703 , EACH PARTY HERETO SPECIFICALLY AND EXPRESSLY WAIVES ANY IMMUNITIES OR LIMITATIONS ON LIABILITIES THAT IT MAY HAVE AS AN EMPLOYER UNDER ANY APPLICABLE WORKER COMPENSATION LAW, INDUSTRIAL INSURANCE ACT, OR ANY SIMILAR STATUTE 14 Gold Mountain Golf Club Management Agreement MANAGER OWNER ARTICLE VIII 8.01 Casualty If the Club Facilities are damaged or destroyed by casualty and Owner reasonably determines it is not feasible to rebuild, Owner or Manager may terminate this Agreement If Owner elects to rebuild, then this Agreement shall continue in full force and effect If the Club Facilities are closed for longer than three (3) months as the result of such casualty and Owner elects to rebuild the Club Facilities, this Agreement and its obligations will be suspended until the Club Facilities are re- opened or such other time as the parties agree The parties may negotiate an interim management agreement to cover the period of such suspension 8.02 Condemnation (a) Permanent Takin g Upon a taking of either a fee interest in, or a perpetual easement on, all or, any portion of the Club Facilities such that the part not taken may not reasonably be repaired, restored, replaced or rebuilt so as to constitute a golf facility as contemplated by the parties under this Agreement, either Owner or Manager shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days' written notice to the other Upon a taking of less than all of the subject Club Facilities, and if this Agreement has not terminated as permitted in this Section, this Agreement shall remain in full force and effect with respect to the remainder of the Club Facilities, and the awards or other proceeds on account of the taking on account of the taking shall not be included in the calculation of Gross Revenue for the Operating Year(s) in which received Owner shall promptly repair, restore, replace or rebuild the remainder of the Club Facilities as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such work shall not be deducted as an Operating Expense Upon any taking, Manager shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days' written notice to Owner (b) TemporM Takm If a temporary taking occurs so that the Club Facilities may not be operated in the manner consistent with the Operating Standard and continues in effect for a period of longer than twelve (12) months, either Owner or Manager shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days' written notice to the other Otherwise, upon a temporary taking of all or any portion of the Club Facilities, this Agreement shall remain in full force and effect, and the awards or other proceeds on account of the taking on account of the taking shall not be included in the calculation of Gross Revenue for the Operating Year(s) in which received When and if, during the Term, the period of temporary taking ceases, Owner shall make all such restoration, repairs and alterations as are necessary to restore the Club Facilities to its condition prior to the taking Owner shall promptly repair, restore, replace or rebuild the remainder of the Club Facilities as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such work shall not be deducted as an Operating Expense ARTICLE IX BUSINESS INTERRUPTION In the event the Club Facilities suffer damage or loss as described in Section 8 01 that results in the interruption of operation of the Club Facilities for a period of three months or less, Owner shall be obligated during the period of interruption or any extended indemnity period (or until this Agreement is 15 Gold Mountain Golf Club Management Agreement otherwise terminated or suspended by the parties in accordance with Section 8 01) to pay Manager for services provided an interim monthly management fee equal to five percent (5 %) of the Club Facilities' Gross Revenue for the same period of , the prior year (the "Interim Management Fee ") By way of example and for clarification purposes only, in the event a portion of the Club Facilities are damaged by fire and Owner elects to repair and re -open the Club Facilities during the three -month period of October through December 2013, Owner shall pay Manager a monthly Interim Management Fee equal to 5% of the Gross Revenue generated by the Club Facilities during the months of October, November and December in 2012 Owner's payment obligations under this Article IX shall be offset and reduced by any proceeds received by Manager under any business interruption policy maintained by Manager in accordance with Section 7 01 ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS 10.01 By Owner Owner represents, warrants and covenants as follows (a) Manager may peaceably and quietly possess, manage and operate the Club Facilities' during the Term, subject to the conditions hereof, free from interference, interruption or disturbance by Owner or its affiliates or anyone claiming through Owner or its Affiliates (b) Owner has full power, authority and legal right to execute, perform and observe all of the provisions under this Agreement This Agreement constitutes a valid and binding obligation of Owner and does not constitute a breach or default under Owner's governing documents or the terms, conditions or provisions of any agreement or instrument to which Owner or any of its Affiliates is a party or any Applicable Law (c) There is no litigation or proceeding pending or, to Owner's knowledge, threatened against Owner, Owner's Affiliates or the Club Facilities that could adversely affect the validity of this Agreement or the ability of Owner to comply with its obligations under this Agreement (d) The Club Facilities are, and Owner will ensure that prior to the Commencement Date all activities and conditions associated with the Club Facilities will continue to be, in compliance with all Applicable Laws (e) To the best of Owner's knowledge (1) no Hazardous Materials are present in or on, or have been released from, the Club Facilities, (n) there exists no other surface or subsurface soil, water, mineral, chemical or environmental condition in, on or under the Club Facilities that presents or poses any threat to the health and safety of any person or any property or with the passage of time will require notice or reporting to any governmental authority or employees or patrons of the Club Facilities, or otherwise require, based on any legal requirement or standard of prudent ownership, monitoring or remedial action, (m) there exists no identifiable threat of the contamination of the Club Facilities by release of Hazardous Materials from existing sources adjacent to the Club Facilities, and (iv) the Club Facilities contain no underground storage tanks (f) As of the Commencement Date, (i) all leases, licenses, franchises, concessions, service agreements, mortgages or other agreements or security instruments with respect to the Club Facilities are in full force and effect and (ii) there exists no breach, default or event or condition 16 Gold Mountain Golf Club Management Agreement which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Club Facilities agreements or instruments either by Owner or the other contracting party (g) During the term of this Agreement, Owner shall use its best efforts to pay, keep, observe and perform all payments, terms, covenants, conditions and obligations to be made, kept, observed or performed by Owner under any lease, license, franchise, concession, mortgage or other agreement or security instrument with respect to the Club Facilities, and shall keep such agreements and instruments in full force and effect (h) Owner has, and throughout the term of this Agreement shall maintain, good and marketable title to the Club Facilities and the FF &E and all operating equipment and supplies, free and clear of all liens and encumbrances 10.02 By Manager Manager represents, warrants and covenants as follows (a) Manager has full power, authority and legal right to execute, perform and observe all of the provisions under this Agreement This Agreement constitutes a valid and binding obligation of Manager and does not constitute a breach or default under Manager's governing documents or the terms, conditions or provisions of any agreement or instrument to which Manager or any of its Affiliates is a party or any Applicable Law (b) There is no litigation or proceeding pending or, to Manager's actual knowledge, threatened against Manager or Manager's Affiliates that could adversely affect the validity of this Agreement or the ability of Manager to comply with its obligations under this Agreement ARTICLE XI ENVIRONMENTAL 11.01 Environmental Laws Manager shall not use, generate, manufacture, store on, dispose of, produce, bring onto, or otherwise introduce to the Club Facilities any Hazardous Material, except those typically used in prudent and safe Club Facilities' operation Owner shall indemnify, defend and hold the Manager harmless from and against all loss, costs, liability and damage (including, without limitation, engineers' and attorneys' fees and expenses, and the cost of litigation) arising from the presence of Hazardous Materials in, on or under the Club Facilities, except to the extent such loss, costs, liability or damage results from Manager's gross negligence or willful misconduct For purposes of this Agreement, "Hazardous Materials" means and includes asbestos or any substance containing asbestos, polychlorinated biphenyls, any explosives, radioactive materials, chemicals known or suspected to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions, infectious wastes, petroleum or petroleum- derived waste or product or related materials and any items defined as hazardous, special or toxic materials, substances or waste under any Environmental Law, or any material which shall be removed from the Club Facilities pursuant to any administrative order or enforcement proceeding or in order to place the Club Facilities in a condition that is suitable for ordinary use "Environmental Laws" means all federal, provincial and local laws (whether under common law, statute or otherwise), ordinances, rules, regulations and guidance documents now in force, as amended from time to time, in any way relating to or regulating human health or safety, industrial hygiene or environmental conditions, protection of the environment, pollution or contamination of the air, soil, surface water or groundwater, 17 Gold Mountain Golf Club Management Agreement including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U S C §9601, et seq, the Resource Conservation and Recovery Act, 42 US C §6901, et seq, the Clean Water Act, 33 U S C §1251 et seq, the Clean Air Act, as amended, 42 U S C §7401 et seq, the Occupational Safety and Health Act, 29 U S C §651 et seq , the Hazardous Materials Transportation Act, 49 U S C § 1801 et seq , the Federal Water Pollution Control Act, 33 U S C § 1321 et seq , and the Toxic Substances Control Act, 15 US C §2601 et seq , and the amendments, regulations, orders, decrees, permits, licenses or deed restrictions now or hereafter promulgated thereunder 11.02 Payment of Costs All costs and expenses paid by Owner in connection with the compliance with all Environmental Laws, and any amounts paid to the Manager pursuant to the environmental indemnities hereunder shall be paid by Owner from its own funds and shall not be an Operating Expense, but may be a deduction from the Capital Improvement Reserve upon mutual consent of the parties ARTICLE JIII TRADEMARKS AND OTHER PROPRIETARY MATERIALS 12.01 Ownership of Manager Trademarks Owner acknowledges and agrees that Manager is and shall remain owner of the trademarks, trade name, service marks and copyrights associated with the name COLUMBIA HOSPITALITY and the related marks that include the words COLUMBIA HOSPITALITY, including COLUMBIA HOSPITALITY ACADEMY, and Manager's corporate logo or symbol, together with the right to use any and all URLs, slogans, derivations, trade secrets, know -how, and trade dress, and all other proprietary rights associated with such names, marks and slogans (the "Manager Trademarks ") Owner agrees not to contest Manager's rights in respect of the Manager Trademarks, including any additions or improvements to the Manager Trademarks by whomever developed 12.02 Use of Manager Trademarks As part of its management services provided under the terms of this Agreement, Manager will use the Manager Trademarks as it deems appropriate and advisable to identify, designate, market, advertise and promote the Club Facilities as being affiliated with the group of inns, hotels, resorts and other facilities managed by Manager, subject to the following terms (a) In connection with Manager's use of the Manager Trademarks, the Club Facilities will be identified as being affiliated with the Manager's group of inns, hotels, resorts and facilities even though the Club Facilities will continue to be primarily designated as the "Gold Mountain Golf Club " (b) Owner may not itself use the Manager Trademarks or apply for international, United States federal, or state or territorial registration of any rights in the Manager Trademarks Without Manager's prior consent, Owner may not use of the Manager Trademarks as all or part of its legal name or any other trade or assumed name under which Owner does business (c) Manager retains the sole right and discretion to (1) determine how and on what materials the Manager Trademarks may be used and (ii) handle disputes and control actual or threatened litigation with third parties relating to any part of the Manager Trademarks 18 Gold Mountain Golf Club Management Agreement (d) Upon termination of this Agreement, any use of or right to use the Manager Trademarks shall immediately cease the Club Facilities will no longer be identified as being affiliated with the Manager's group of inns, hotels, resorts and facilities As of the date of termination, Manager shall remove any proprietary signage, collateral or other materials from the Club Facilities 12.03 Use of Owner's Trademarks Owner hereby grants to Manager a temporary, royalty -free, revocable, non - transferable license to use the trademarks "Gold Mountain," "Gold Mountain Golf Club," "Tucker's at Gold Mountain," and derivations thereof, together with all other trademarks, trade names and logos associated with the Club Facilities in connection with the performance of Manager's obligations hereunder 12.04 Manager's Intellectual Property Owner acknowledges and agrees that Manager or its Affiliates may create, invent, author, produce, conceive or cause to be created, invented, authored, produced or conceived certain proprietary information, processes and systems and utilize or cause to be utilized such proprietary information, processes and systems in its management of the Club Facilities (collectively, "Manager's Intellectual Property ") Manager's Intellectual Property may include certain operations manuals, daily, monthly, quarterly and annual operational reports, budget programs and worksheets, sales and marketing plans and materials, recipes, employee training and development materials and guest profiles and information Owner may not access, use, copy, distribute, reproduce, or allow access to or use of, Manager's Intellectual Property except to the extent authorized by Manager and then only in conjunction with Manager's services provided under this Agreement Owner acknowledges and agrees that all right, title and interest in and to Manager's Intellectual Property, and all copyrights, trademarks, or other intellectual property or proprietary rights relating thereto, are and shall remain the sole and exclusive property of Manager Owner further acknowledges that no such right, title or interest in these items is granted under this Agreement to Owner ARTICLE XIII LIMITATIONS ON SERVICES AND RELEASE 13.01 No Manager Representation re Insurance In connection with any insurance coverages required or obtained under this Agreement, Manager makes no warranty or representation as to the advisability, nature or extent of the insurance coverages furnished and maintained by Manager for the benefit of Owner or other coverages Owner should consider for the protection of the Club Facilities or their operations Owner agrees to rely exclusively on its own insurance advisors with respect to all insurance matters 13.02 Financial Projections Any and all financial projections and budgets prepared by Manager under this Agreement, including the Annual Plans and Budget, are intended solely to assist Owner in operating the Club Facilities, but are not to be relied up on by Owner or any other third party as to the accuracy of information contained therein or the results predicted Owner acknowledges and agrees that Manager shall not be held responsible by Owner or any third party for any divergence between such projections and budgets and actual operating results. 19 Gold Mountain Golf Club Management Agreement 13.03 Warranty and Disclaimer MANAGER WARRANTS THAT IT WILL PERFORM ITS SERVICES HEREUNDER IN ACCORDANCE WITH THE DESCRIPTIONS SET FORTH IN THIS AGREEMENT USING GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES MANAGER DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON - INFRINGEMENT 13.04 Release Owner hereby unconditionally releases Manager and its Affiliates and their respective owners, officers, directors, employees, agents and assigns from, and waives any right or claim relating to, any and all claims, liabilities and obligations, whether now existing or hereafter arising, and whether known, unknown, fixed, contingent or otherwise, arising from or related to the matters described in this Article XIII ARTICLE XIV GENERAL TERMS AND CONDITIONS 14.01 Use of Affiliates Manager shall be entitled to contract with one or more of its Affiliates to provide goods and/or services to the Club Facilities, provided that the prices and/or fees paid to any such Affiliate are competitive with the prices and/or fees that would be charged by reputable and qualified parties that are not Affiliates of Manager for similar goods and/or services The prices and/or fees paid to its Affiliates may include overhead and the allowance of a reasonable return customary for the goods and/or services to be provided 14.02 Independent Contractor Manager and its employees are not employees of the Owner Manager will perform the services hereunder solely as an independent contractor and as agent of Owner Neither this Agreement nor any agreements, instruments, documents or transactions contemplated herem shall in any respect be interpreted, deemed or construed as making Manager or its employees, agents, representatives and contractors an employee, partner orjomt venturer with, or of, Owner or any of its Affiliates 14.03 Confidentiality Each party will use commercially reasonable efforts to keep in confidence and prevent the disclosure to any third party of any Confidential Information it receives from the other party Notwithstanding the foregoing, the receiving party may disclose Confidential Information (a) to its members, managers, employees, agents, lenders, advisors and attorneys on a "need to know" basis, provided that each such person has agreed to keep in confidence and prevent the disclosure to any third party of the Confidential Information, or (b) required to be disclosed pursuant to provisions of law (Public Records Act Chapter 42 56 RCW or other similar law) or a subpoena, provided that, if allowed by law, the receiving party 20 Gold Mountain Golf Club Management Agreement provides the disclosing party with timely written notice of the subpoena or order, and cooperates with the disclosing party in obtaining confidentiality orders Each party will be entitled to equitable relief by way of injunction, temporary restraining order or otherwise, without the need to post a bond, if the other party breaches or threatens to breach any provision of this Section 14 03 14.04 Notices All notices will be in writing and will be deemed duly given if (a) personally delivered, (b) sent by facsimile (with electronic confirmation of delivery), (c) sent by overnight delivery through a nationally- recognized overnight delivery service or (d) mailed registered or certified mail, return receipt requested, postage prepaid Each notice will be delivered to the intended recipient at the applicable address or facsimile number set forth below or at any other address or facsimile number as any party notifies the other party in writing Notices or other communications that are sent by (x) personal delivery or facsimile, will be deemed received on the day sent or on the first business day thereafter if not sent on a business day, (y) overnight delivery, will be deemed received on the first business day immediately following the date sent, and (z) U S mail, will be deemed received three business days immediately following the date sent Notices shall be sent to the following addresses If to Owner City of Bremerton City Hall, 345 6th Street, Suite 600 Bremerton, WA 98337 Attention Director of Financial Services Telephone (360) 473 -5722 Facsimile 360) 473 -5200 If to Manager Columbia Hospitality, Inc 2223 Alaskan Way, Suite 200 Seattle, WA 98121 Attention John Oppenheimer Telephone (206) 239 -1800 Facsimile (206) 239 -1801 with a copy to Garvey Schubert Barer 1191 Second Avenue, 18' Floor Seattle, WA 98101 -2939 Attention Gregory J Duff, Esq Telephone (206) 464 -3939 Facsimile (206) 464 -0125 14.05 Entire Agreement and Modification This Agreement constitutes all of the understandings and agreements of any nature existing between the parties with respect to the management services Manager will perform for Owner under the terms of this Agreement Unless otherwise provided for herein, no amendments, changes, alterations or modifications of this Agreement shall be effective unless they are in writing executed by Manager and Owner 21 Gold Mountain Golf Club Management Agreement 14.06 Governing Law and Venue This Agreement will be construed and interpreted in accordance with the laws of the State of Washington, without regard to applicable choice of law principles Any mediation, arbitration or legal proceeding that arises out of or in connection with this Agreement will be initiated and maintained in Kitsap County, Washington Each party consents to jurisdiction and venue in such courts and waives the right to claim that any such court is an inconvenient forum 14.07 Attorneys' Fees In the event an action is commenced by either party to enforce any right or obligation hereunder or interpret this Agreement, each party shall pay all its own costs and attorney's fees 14.08 Assignment and Binding Effect Neither party may assign, pledge, encumber or otherwise transfer (whether by operation of law or as a result of merger, consolidation, reorganization or sale of assets or equity) its interest in this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, provided that so long as Manager is not then in material breach of default of this Agreement, Manager shall have the right, without Owner's consent, to assign all or a portion of its rights and obligations under this Agreement to (a) any Affiliate of Manager, (b) any successor to Manager that may result from any merger, consolidation or reorganization, or (c) any individual or entity that acquires all or substantially all of the business assets of Manager Subject to the foregoing, this Agreement will be binding upon and mure to the benefit of the parties' successors and permitted assigns 14.09 Waiver No delay or omission in exercising any right or remedy will be deemed a waiver of any right or remedy No waiver of any provision of this Agreement will constitute a waiver of any other provision of this Agreement, nor will any waiver constitute a continuing waiver unless so specified in writing executed by the party to be bound 14.10 Counterparts; Facsimile This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument, with the same effect as if the signatures thereto were in the same instrument This Agreement will be effective and binding on the parties when both parties have executed and delivered a counterpart of this Agreement, it being agreed that facsimile signatures shall be binding on the parties 14.11 Limited Restrictions on Manager Neither Manager nor any of its Affiliates is restricted from owning, operating, licensing, franchising, managing, advising, or otherwise associating in any way with any other hotel, time -share facility, interval ownership facility, vacation club, residential facility, food and beverage operation, or other business of any kind, whether or not such business may be considered competitive, directly or indirectly, with the Club Facilities, and Manager and its Affiliates are expressly permitted to engage in any or all of such activities, except that, Manager shall not manage or operate any golf course or golf club facilities in Krtsap County without Owner's consent, such consent not to be unreasonably withheld, conditioned or delayed 22 Gold Mountain Golf Club Management Agreement 14.12 Non - Solicitation During the Term and for two (2) years following expiration or earlier termination of this Agreement, Owner shall not directly or indirectly, for itself or any Affiliate, solicit, recruit, hire, employ or retain the services of, any personnel of Manager or any Affiliate of Manager that performed services at or for, the Club Facilities during the 12 -month period immediately preceding the expiration or earlier termination of this Agreement 14.13 Patriot Act Each party represents, warrants and covenants that neither it nor any of its Affiliates (or any of their respective principals, partners or funding sources) is nor will become (a) a person designated by the U S Department of Treasury's Office of Foreign Asset Control as a "specially designated national or blocked person" or similar status, (b) a person described in Section 1 of U S Executive Order 13224 issued on September 23, 2001, (c) a person otherwise identified by a government or legal authority as a person with whom an owner or manager of a hotel is prohibited from transacting business, (d) directly or indirectly owned or controlled by the government of any country that is subject to an embargo by the United States government, or (e) a person acting on behalf of a government of any country that is subject to an embargo by the United States government Each party shall notify the other in writing immediately upon the occurrence of any event which would render incorrect any of such party's representations and warranties under this Section [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 23 Gold Mountain Golf Club Management Agreement IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date OWNER City of Bremerton By Its MANAGER Columbia Hospitality, Inc By Its R \Legal\Legal\Files \Current Active Files \Gold Mountam \Columbia Hospitality Agreement - 2012 \Gold Mountain Golf Course Management Agreement (9- 25 -12) Final doc 24 Gold Mountain Golf Club Management Agreement Exhi Ropwty LM. G olf Course Area - • boundary lin t yY� i9k j�-, a. �R .t � 4 • a � y�" .�" 7� r 3�� � � L1Y 4f '; t .�� �t�, "c � �� . � # � � �.. F 3 �3• fi{ t � x WON" Mc �X" f' � Aar �`- n g. y3.- :�- .S+YdM } Z-F� w 4 " � y ♦ 94 �°i"�'Y h.� b t ¢' y-( �. r" b :? "°� �� �asr.' �b'+� v91 � F ���.c t �� rt � '�y y . "d•. k.r y S r >�. "`�� }� 4 ' ^?w x .. t3��"'":' (� f�� � .F � ��t��� 3ty �a r tam �1,; F 1 F " �.w� � � t.R.�`,� �.� 4 �` �.i � �:�• F...rx $""� 0 s,,.,s °`! *F s , .F � tF is 3 g t e. & "`" yl f r t .• t , e rr . ���t fi k — �C, F3` �� l 5 x r-+!�' s e1"?t���3 .3( �b t %�^ia t J � �' ,� w ♦� ti,R ir•r Q � J�y{� Ar ��, �• .3'. xF ... rt r •4k• .� .t .n '�' r� 'S -� 7 9 z, 1J. .,L'° + ��'�. , ♦n z^ }"f F #��,Y,� •�' �aw:F Y f t j`• �_�!` •. '�F,�R.�,� ,} 'Ct� v � �': t �'"c }) s .r.y� ^' "= ,6-''', � f a �} AY #n4i• s 7 ri, " r „4 d{' D: r�` ;k�. '�Yr^. r ��� t �t ?^"` K .•'' -`5 ` ," r s _ j j if -vv +~ � . � j ,3 � s �, • 'ice : i� � r.. JAR I F '�� �y. ,�,• � /��y' J r a� h � �, � "�• .'t lc jM3 � r R ' rt s ' ♦ r R S "' > - " 1 `'�''d Y ,� `rT � '}K1 st }� P � r �•*Y �°,7�i' ? � . 7. � s l j �•.� •�� z ��:3"'�� f � ��# < ' it 9 s. t! b , yA•?��� 1 P� "� N'� �` .y»,t� ! ter s,a 4 y Y• '} c ,y � I. t yg � Jk1� `v st Srk'�Rf5:�3 -+5 - � j �,�r'l�,.�,•'+•.�'t`Gi . ! s+�� 4 3� •' � � t A pr ' ���'�'��� �� '3'��.u'T��' �1 Y : "* -•••^M �.,-" , nom 'St �� ��77� � ,. � , .t": b'�3 ! �' ��� C' d - � � w � A' ' #. Y rid t #' 2' r+, °� y'Ntr,,.� ���TT t ' i. `'Z. x }7A�.�"'+•+. �[ '�'�k3��J(� S ,fikrfrYi��t � `�`� �',"�� F?�, �•F��. �T �, s� x v � t �; •.t S ....� i w,+'.^i'. t .t 3: r�"Yx�• s . ' r:3��4 i ' ' SJ „dot � y� : '' ,5� �.. 1r5� .'e x. . �r� , � i p � 'ar -,♦ wr .1ats,w`s .b r � 't t , L ,� �, . ,y t ����!4� � ���� �, -t �s� Y y4t � w � F �r F' �' `rt} �,«`•+f :. �. ,,� '� n K cR' h a rw y 4 V � �+ti�ti, � Ysr �: + � t SAe� p t►�� ' �t t ai ?s.d� `c.'"' �,g 'S;` *.,�"e -' �. w . x�- Exhibit B Maintenance Standards The following are the parameters of the maintenance practices and programs for the Cascade and Olympic courses A. Maximum Mowing Heights Cutting Height Settings Summer Winter Tees 1/2" 1/2" Fairways 1/2" 1/2" Roughs 1 -1/4" 1 -1/4" Collars 1/2" 1/2" Greens 125" 150" B. Mowing Standards Frequency Per Week Summer Winter Tees 2 As Needed To Fairways 3 Maintain Maximum Roughs 2 Mowing Heights Collars 3 Greens 7 C. Bunkers Raked Frequency Per Week Summer Winter 3 As Needed D. Aerification Greens And Aprons All greens aernfication will be coordinated with the pro staff to mitigate impact to tournaments and special events, and timed to maximize revenues Spring Aerification will be performed with a minimum 5/8" hollow tines Fall Airification will be performed with a minimum 5/8" hollow tines Tees, Fairways And Greens Surrounds These areas will be aerified a minimum of once per year with 3/4" hollow tines Exlubrt B E. Reserved F. Regular Maintenance Practices Light sand top - dressing of the greens will be done monthly during the growing season Cup location and tee markers will be changed daily during the growing season Fairway divots will be filled with sand and seed monthly Divots on tees will be filled with sand and seed daily Divots on driving range tee will be filled with sand and seed a minimum of 4 days per week Both courses will be kept free of storm blow -down and branches Encroaching brush and Scotch Broom with be cut back yearly Cart paths and bunkers will be edged a minimum of once per year All restrooms will be cleaned and sanitized daily Clubhouse lawns and landscaping will be maintained regularly Parking lot and entry road will be kept clean and debris free G. Equipment Maintenance Regularly scheduled maintenance will be performed on all equipment to minimize costly repairs and equipment down time All repairs and parts will be documented to help identify problem equipment and determine cost effectiveness of repair vs replacement All cutting unit blades will be sharpened regularly to ensure a precise clean cut in order to keep the turf healthy and the playing surface smooth H. Irrigation Manager will maintain the irrigation system in accordance with Section 6 01 Owner will contract with and manage (in a manner consistent with Manager's operation of the Club Facilities in accordance with the Agreement) an outside agent for preventive maintenance of the irrigation pump stations on both the Olympic course and the Cascade Course Manager will work with Owner's Water Resource Manager to coordinate water usage and water pressure concerns I. Chemical Use Manager will work closely with the Water Resource Division of Owner in the use of chemicals and their application A list of all pesticides and other chemicals must be maintained by the Manager including the MSDS information sheets, dates and time applied, the person who Exhibit B applied the chemical and other information that may be required by OSHA, WISHA, Department of Labor and Industry, EPA and any other city, county, state, or federal agency that would have enforcement authority J. Fertilization Manager will set up a fertilization program for the Club Facilities and work closely with the Director of Parks and Recreation to determine a yearly budget for fertilizer K. Tree Removal Hazardous trees will be removed by Manager's maintenance crew as required for safety Manager will work with Owner's Forestry Manager for removal of any trees that are not related to safety Exhibit B Exhibit C Manager's Insurance Requirements To the extent commercially permissible or otherwise noted herein, the Manager and Owner shall be named insureds under the policies listed below Deductibles, if any, for the following policies shall be subject to Manager's prior review and approval (a) Commercial General Liability insurance on an occurrence basis against claims for personal mjury (including bodily injury or death) and tangible property damage occurring on, in or about the Club Facilities or otherwise arising under this Agreement in an amount not less than that generally provided in policies of insurance procured by operators of other Club Facilities in the same general region in which the Club Facilities are located, but in no event less than $1 million per occurrence and $2 million aggregate limit This insurance must include bodily injury and property damage liability, independent contractors' liability, contractual liability, products and completed operations liability, liquor liability for host and liquor legal liability, innkeepers legal liability and personal and advertising injury liability and shall be primary and non - contributory to any insurance maintained by either party The policy will also include Premises Medical coverage with an applicable limit of $5,000 There shall be no deductible for this coverage (b) Commercial automobile liability insurance on an accident basis against claims for injury or death to persons or damage with minimum limits of liability of $1 million combined single limit for each accident Such insurance must include coverage for bodily injury liability, property damage liability, and the operation of owned, hired and non -owned vehicles There shall be no deductible for this coverage (c) Workers' compensation insurance as shall be required by and be in conformance with the applicable laws of the ,jurisdiction in which the Club Facilities are located, including employers liability insurance with limits of not less than $1 million for each accident and disease for all of the employees involved in the Club Facilities' operations The Manager shall be the only named insured (d) Excess or "umbrella" liability insurance no less broad than the underlying General Liability, Automobile Liability, and Employers Liability coverages set forth above on an occurrence basis providing excess coverage in a total amount no less than $15 million in the annual aggregate The deductible or self insured retention for this coverage shall not exceed $10,000 (e) Employment practices liability insurance (with an extended reporting period not less than one (1) year in the event that the coverage is given in a "claims made" form) in an amount not less than $2 million per occurrence /annual aggregate The deductible or self insured retention for this coverage shall not exceed $10,000 (f) To the extent determined by Manager to be economically feasible, insurance against business interruption and extra expense resulting from loss or damage from hazards to all property (real and personal) The Manager shall be the only named insured under this policy (g) Comprehensive crime insurance, including employee dishonesty, to the extent Manager and Owner mutually agree it is necessary for the Club Facilities (h) Contractor's pollution coverage for Manager's operation of the Club Facilities with minimum limits of liability of $2 million The Manager shall be the only named insured under this policy Exhibit C (1) Such other insurance in amounts as Manager and Owner in their reasonable judgment, deem advisable for protection against claims, liabilities and losses arising out of or connected with the Club Facilities Exhibit C Gold Mountain Consolidated Pro Forma 2011 Base Year Conservative Moderate Aggressive C1ty Adjusted Revenues Comparison 2013 2013 2013 2013 Pro Shop Operations Greens Fees $ 2,046,000 $ 2,148,300 $ 2,189,220 $ 2,250,600 $ 1,900,000 Pull cart and club rental $ 11,745 $ 12,332 $ 12,567 $ 12,920 $ 10,830 06% Driving Range $ 102,414 $ 107,535 $ 109,583 $ 112,655 S 95,190 50% Pro Shop merchandise $ 424,453 $ 445,676 $ 454,165 $ 466,898 $ 394,250 208% Misc & Other $ 45,686 $ 47,970 $ 48,884 $ 50,255 $ 42,370 22% Total Pro Shop Revenue $ 2,630,298 660% $ 2,761 660% $ 2,814,419 660% $ 2,893,328 66()% $ 2,442,640 660% Golf Cart Rentals Cart Rentals $ 452,540 113% $ 475,167 113% $ 484,218 113% $ 497,794 113% $ 418,210 113% Food and Beverage Division Total F &B revenue $ 905,312 227% $ 950,578 227% $ 968,684 227% $ 995,843 227% $ 840,120 227% Total Revenue $ 3,988 1000% $ 4,187,5 1000% $ 4,267, 1000% $ 4,386, 1000% $ 3,700,970 1000% Departmental Profit Pro Shop $ 1,613,437 613% $ 1,759,933 637% $ 1,807,416 642% $ 1,881,202 642% $ 1,55S,962 637% Food and Beverage $ 5,074 06% $ 66,591 70% $ 80,589 83% $ 103,639 83% $ 58,808 70% Cart Rental $ 330,522 730% $ 353,149 743% $ 362,200 748% $ 375,776 748% $ 310,730 743% Total Departmental Profit $ 1,949,033 48 9 $ 2,179,673 521% $ 2,250,205 527% $ 2,360,617 527% $ 1,924,500 S20% Grounds Maintenance Total Grounds Maintenance $ 1,340,618 336% $ 1,273,587 304% $ 1,273,587 298% $ 1,273,587 298% $ 1,273,587 344% GROSS OPERATING PROFIT $ 608,415 153% $ 906,086 216% $ 976,618 229% $ 1,087,030 248% $ 651,91 176% Base Management Fees $ 199,408 50% $ 209,378 50% $ 213,366 50% $ 219,348 50% $ 185,048 50% Insurance & Real Estate Costs $ $ $ $ $ Total A&G, etc. $ 199,408 $ 209,378 $ 213,366 $ 219,348 $ 185,048 NET OPERATING INCOME $ 409,008 103% $ 696,708 166% $ 763,252 179% $ 867,682 198% $ 466,864 126% Incentive Management Fees $ $ 19,342 $ 32,650 $ S3,536 $ - Capital Reserve $ S 167,502 S 170,693 S 175,479 $ 148,039 Net Income _ $ 409,008 10 3% $ 509,864 122% $ 539,909 131% $ 638,667 146% $ 318,82 a6% 2013 Debt Service $ 282,030 $ 282,030 $ 282,030 $ 282,030 $ 227,834 $ 277,879 S 356,637 $ 36 Total Many ement Fees $ 199,408 $ 228,72o $ 246,016 $ 272,885 $ 184,048 September 12 2012 'RECEIVED Cif COUNCIL OFFICE" 'SATE a- CC Mayor Patty Lent CoL4 A C; City of Bremerton P61kS Dept 345 6 th Street, Suite 600 Bremerton,Washington 98337 -1873 Honorable Mayor Lent - I live and pay taxes in Port Orchard and play golf at the beautiful Gold Mountain Golf Courses I read the article by Chuck Stark in the Kitsap Sun on September 6 th If all the facts that were stated are true in fact, then it doesn't make sense NOT to open up the management and operations of the two courses to some sort of bid The City of Bremerton and its officials should at least be receptive to other management companies ideas and proposals, especially when there's the potential of millions of dollars involved and /or at stake I totally agree with Greg Wheeler's idea of, and I quote, "the proposal go out for a competitive bid from companies with golf course management experience " Further, "the city ought to pull in its reins, take a deep breath & start over on this process. Gold Mountain's 36 hole facility is world class Don't screw it up " Mayor Lent, I sincerely encourage you to consider all bids from the experienced hands-------- - its only right I Very truly yours, Fred Kubasak (e -mail fkubasak @msn com) Fred Kubasak P 0 Box 875 Machestet, WA 98353- . CHUCK STARK I Not too late to change course on Gold Mountain Kitsap Sun Pagel of 3 MtSCIL Sun Road moro at kitsapsuii cram CHUCK STARK I Not too late to change course on Gold Mountain By Chuck Stark Wednesday, September 5, 2012 I'll preface this by saying I have no clue why the city of Bremerton has such a strong desire to have Columbia Hospitality, a company that has no history managing golf courses, take over operations of Gold Mountain Golf Club in 2013 For some reason, Bremerton mayor Patty Lent has targeted the Seattle -based company, which manages the Kitsap Conference Center, to manage the golf course Your guess is as good as mine I've written this before, but I'll write it again I have nothing against Columbia Hospitality, but it boggles my mind that the mayor and the city would not open this up to some sort of bid Touchstone Golf vice president Lynn Shackelford, the former UCLA basketball star and golf course owner /investor, got hold of me after I'd questioned the city's sanity on this topic in this space last month Shackelford said there's no doubt that the top golf course management companies in the country would be interested in sitting down with city officials Why wouldn't city officials be interested in listening to them? I've been told that a couple of management groups made inquiries, but the city opted to go down the Columbia Hospitality path Current Gold Mountain pro Daryl Matheny, who was the business partner of outgoing director of golf Scott Alexander for the last 16 years and has been at the course for 24 years overall, also expressed an interest in managing the course You'd think the city would be interested in listening to his proposal or at least seek his opinions At least one City Councilman, Greg Wheeler, agrees with me, but he appears to be the lone wolf on this issue Wheeler would like to see the proposal go out for a competitive bid from companies with golf course management experience http / /www kitsapsun com/news/ 2012 /sep /05/ chuck - stark -its- not - too -late- for - city -to -change 9/6/2012 CHUCK STARK I Not too late to change course on Gold Mountain Kitsap Sun Page 2 of 3 "I think this is one of our biggest assets," Wheeler said in a story the Kitsap Sun printed last week Wheeler evidently wasn't able to sway any of his cohorts "I got no takers," he said "I think there were some reservations, but the train's left the station " Really? Is it too late to stop that train? I've had calls and people have stopped me in the super market to say that they agree with me on this point One guy suggested they should storm the chambers at a city council meeting to voice their displeasure with how this process has played out Because of the debt that the city has to payoff, this is a complicated deal I'm not sure if there's a lot of people within city government who understand the business of operating a golf course Columbia Hospitality has admitted it has no expertise in that area They've talked to Matheny and respected greens superintendent Ed Faulk about possibly retaining them if they are able to work out a deal with the city Originally, the city said it would contract with Faulk Sounds to me like the city would be adding a middle man to the middle man Sound to me like the city ought to pull in its reins, take a deep breath and start over on this process When it's all said and done, if Columbia Hospitality is by far and away the best choice, cool Sign the dotted lines and let's move forward But the city should look at all of its options before doing that Gold Mountain's 36 -hole facility is world class Don't screw it up So the Kitsap Pumas are suing the Bremerton School District and trying to convince Kitsap County official to dress up Gordon Field and use it for its home Premier Development League games All the legal stuff aside, I've got mixed emotions I thought Memorial Stadium was a pretty cool place to watch a soccer game The grass field was immaculate and I really liked sitting in the end zone seats That said, if the county and Pumas owner Robin Waite can come up with a way of turning Gordon Field into a venue that can hold 2,000 fans with a restroom, concession, press box etc , it could become soccer central for the Kitsap Peninsula There's plenty of parking, it's centrally located and the Pumas would have also have an http / /www kitsapsun com/news/ 2012 /sep /05/ chuck - stark -its- not - too - late - for - city - to - change 9/6/2012 CHUCK STARK I Not too late to change course on Gold Mountain Kttsap Sun Page 3 of 3 opportunity to put a beer garden on the grounds, which would help put some fans Into the stands If you can turn Gordon Field in a soccer palace, and Waite puts up the majority of the money, and youth soccer remains the primary tenant, then I'm all for it Former Sun sportwriter Terry Mosher — you still see his byline in our pages regularly — reported that Babe Ruth League, Inc was so impressed with the recently completed 13- year -old Babe Ruth World Series that they asked the hosts from North Kltsap Babe ruth to do it again — next year Evidently an Ohio city that was suppose to host the 2013 Babe Ruth World Series for 14- year -olds unexpectedly pulled out "We politely said no," organizer Brent Stenman said "Even they said it's best to wait a few years in between, if for no other reason than for sponsorships It's pretty hard to go back and ask all of the sponsors to pony up again next year " Besides, Stenman and Russ Barker — the two who brought the tournament to town — are probably burned out "So it probably wasn't a great time to ask us," Stenman told Mosher "Still, (it was) a nice feather in our cap " © 2012 Scripps Newspaper Group — Online http / /www kitsapsun com/news/ 2012 /sep /05/ chuck - stark -its- not - too -late- for - city -to -change 9/6/2012 From: Christine Grenier on behalf of City Council Sent: Friday, September 07, 2012 10 55 AM To: Faye Flemister Cc. Patty Lent, Roger Lubovich, Wyn Birkenthal, Adam Brockus, Eric Younger, Eric Younger, Faye Flemister, Greg Wheeler, Jim McDonald, Leslie Daugs, Nick Wofford, Roy Runyon Subject: citizen message - Golf Course Management (Terri Dodge) Good morning, Faye You received a call from Terri Dodge on Thursday at 4 44 PM who expressed concerns about the proposed golf course management contract (scheduled for September 12 Study Session) She believed that Gold Mountain "is a jewel" and should be managed by "people with experience" Ms Dodge hoped that you would "stand against the Mayor" on this issue The Kitsap Sun article she referred to may be viewed by following this link http / /www kitsapsun com/ news / 2012 /sep /05/ chuck - stark -its- not - too -late- for - city -to- change/ Ms Dodge would appreciate a call at your convenience at (360) 377 -5076 Christine 1 Christine Grenier From: Scott Winch <swinch @HamptonGolfClubs com> Sent: Wednesday, September 05, 2012 7 29 AM To: City Council Subject: Gold Mountain Golf Complex - Management Mr Wheeler, After reading the recent articles referencing the City of Bremerton's search for new management of the Gold Mountain Golf Complex, I felt inclined to contact you in order to discuss the opportunity to present a "competitive bid from a company with golf course management experience " I believe you understand the intricacies involved in operating such an important asset, so to retain a company with no experience in managing golf courses without even reviewing a competing bid could be catastrophic for the City Although I am obviously biased to Hampton Golf, I implore you to at least review a management proposal from one competing company, even if the review is solely to assist in negotiating the management agreement with Columbia Hospitality Feel free to contact me directly if you have any additional questions or concerns Sincerely, Scott Winch, Esquire VP of Operations / General Counsel Hampton Golf 10401 Deerwood Park Blvd, Ste 2130 Jacksonville, FL 32256 904 564 9129 (o) 904 564 1568 (f) swinchAliamptongolfclubs com This e-mail transmission and the information contained in this communication, including attachments if any, is confidential and may be legally privileged, proprietary information intended for the individual or entity to whom it is addressed If you have received this communication or its attachments in error, you are on notice of its status The unauthorized use, distribution or disclosure of this communication and its attachments is strictly prohibited Please notify us immediately by reply e-mail and then delete this message, and all attachments if any, from your system Thank you for your cooperation IRS Circular 230 Notice To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U S federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (u) promoting, marketing or recommending to another party any transaction or matter addressed herein 1 Christine Grenier From Rob Waldron <rwaldron @bdlycaspergolf com> Sent Friday, July 27, 2012 11 09 AM To Patty Lent, City Council, Becky Hasart, Parks, Legal Subject City of Bremerton - Gold Mountain Golf Course Attachments BCG Intro Package July 2012 pdf, Keegan Privatization Article pdf July 27, 2012 Dear Mr Mayor, City Council Members and City of Bremerton Staff We have been following the challenges the City of Bremerton has been facing with the operation of Gold Mountain Golf Club for the past several years You are not alone Municipal golf courses across the Country have been fighting downward trends in rounds and revenue while faced with escalating operating expenses resulting in lower profit contributions to municipalities At Billy Casper Golf ( "BCG ") we have been able to buck this trend with most of our municipal facilities through creative marketing and attention to detail with respect to course conditioning and customer service as well as the implementation of cost controls Billy Casper Golf is the largest operator of Municipal golf courses in the United States with more than 75 municipal courses under management Our Regional Office which is based in Northern California provides support for all of our Western US operations We currently operate several municipal facilities in Washington State including Sumner Meadows GC and Tri Mountain GC We would welcome the opportunity to discuss how we can help you with your golf course operations Below is an outline how Billy Casper Golf has made a significant difference at facilities similar to Gold Mountain Golf Club 1 BCG is a golf course owner themselves — We walk in your shoes every day BCG understands and appreciates what is critical to your success 2 The marketing efforts are powered by "Guest Trac" — This proprietary marketing software package is utilized for targeted marketing programs designed to acquire new golfers and retaining existing golfers 3 Purchasing Power = Economy of Scale - All BCG managed clubs receive discounts and special promotional programs for purchases at the golf course — significant savings for most facilities 4 HR — Training and administrative support staff — Creates a revenue culture and guest - centric focus among all staff members 5 Regional Support Structure — Our Regional Marketing, Agronomy, and Golf Operations support is unique to the Golf Industry 6 Buffalo Communications — BCG's in -house Public Relations Group provides publicity and media relations to all BCG managed properties Timing is not an issue for BCG. By August we will have transitioned nearly 25 new golf course operations into our portfolio in 2012. Our transition Team are experts at providing quick, seamless transitions of all facets of golf course operations. I have attached an intro package some background information about Billy Casper Golf and the services we provide as well as an interesting article regarding the trend towards privatization of municipal golf courses authored by Jim Keegan, noted golf industry consultant 1 We are available at your convenience to discuss the merits of working with BCG Thank you for your time and consideration Rob Waldron Rai 7044*" Rob Waldron Business Development Manager BILLY CASPER GOLF 8300 Boone Boulevard, Suite 350 Vienna, Virginia 22182 703 8913338 (Direct) 301 529 8454 (Mobile) 703 893 3504 (Fax) rwaldron @billycaspergolf com www billycaspergolf com 2 i 7f5 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Change Order to Talbot Study Session Date N/A Excavating Contract COUNCIL MEETING Date October 3, 2012 Department PW & U Presenter Chal Martin Phone 473 -5315 SUMMARY: On September 27, 2012, a $20,810 48 contract was executed with Talbot Excavating for demolition and grading at the former Chevron Property to stabilize the existing site During execution of the work, additional buried concrete was discovered that requires removal Also, staff concluded the most efficient way to install topsoil at the site is to have this work performed by Talbot The requested action is execution of Change Order No 1, which increases the contract amount by $9,189 52 to $30,000 00 ATTACHMENTS: Council Summary, Change Order No 1 FISCAL IMPACTS (Include Budgeted Amount) The work is funded by the existing )(remedial action grant from the Department of Ecology, with $4,500 in additional funding received from the 9 -11 Memorial Committee APPROVALS: DEPARTMENT DIRECTOR D CITY ATTORNEY FINANCE DIRECTOR MAYOR RECOMMENDED MOTION: Move to approve Change Order No 1 with Talbot Excavating and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented STUDY SESSION ACTION: Consent Agenda XGeneral Business ❑ Public Hearing COUNCIL PRESIDENT COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/2011 COUNCIL SUMMARY CHANGE ORDER TO CONTRACT WITH TALBOT EXCAVATING Summary Remediation of the former Chevron Property was conducted in 2009 and 2011 The work completed under the previous contracts did not account for final stabilization of the site, nor for removal of fencing and concrete debris In September, a contract for $20,810 48 was executed with Talbot Excavating for clearing and grubbing, partial fence removal, and concrete removal and grading of staged soils across the site Completion of this work is necessary for final stabilization, and to close an existing Ecology Construction Stormwater General Permit (WAR 124547) The contract was executed under the Director's authority in accordance with the City's procurement code In developing bid documents, staff estimated a concrete debris volume to allow several contractors to bid the work After work began, it became apparent the site contained much more concrete than estimated, increasing excavation an haul costs Also, during the contractor's execution of the work, staff evaluated alternatives to procure and install topsoil, and believe the most cost effective and efficient method is to have this work performed by Talbot All necessary work at the site can be performed by the contractor for a total cost of approximately $30,000 Following the work by Talbot, the City's street crew will adjust monitoring wells to grade and a separate contract will be issued to hydro seed the property All work at the site will be complete by Friday, October 12 The requested action is execution of Change Order No 1 to the contract with Talbot Excavating to add a Force Account line item and increase the total project cost to $30,000 Fiscal Summary The work is fully funded through the existing Department of Ecology Remediation Grant, with a $4,500 contribution from the 9 -11 Committee CITY OF BREMERTON CHANGE ORDER CONTRACT CHANGE ORDER NO 1 PROJECT NAME Site Final Restoration at Former Chevron Site PROJECT NO CONTRACTOR Talbot Excavating ORIGINAL CONTRACT AMOUNT 20,810 48 DAYS 10 PREVIOUSLY APPROVED CHANGES 000 DAYS 0 THIS CHANGE 9,189 52 DAYS 0 REVISED CONTRACT AMOUNT 30,000 00 DAYS 0 This Change Order covers changes to the subject contract as described herein The Contractor shall construct, furnish equipment and materials, and perform all work as necessary or required to complete the Change Order Items The increase or decrease in contract price shown below Includes any applicable taxes DESCRIPTION OF CHANGES INCREASE IN (DECREASE) IN CONTRACT c CONTRACT CONTRACT TIME AMOUNT AMOUNT EXTENSION m ($) ($) (DAYS) Addition work to remove concrete pavement and mix and place 846180 0 topsoil NET CHANGE IN CONTRACT AMOUNT INCREASE OR (DECREASE) ESTIMATED SALES TAX AT 8 6% 72772 TOTAL INCLUDING SALES TAX 9,18952 0 Contractor acknowledges and accepts that this Change Order constitutes final settlement of all claims of any kind or nature arising from or connected with any work either covered or affected by this Change Order, Including, without limitation, claims related to contract time, on -site or home office overhead, or lost profits Nothing in this Change Order shall limit the City's right to bring a claim for past performance CONTRACT CHANGE ORDER NO PROJECT NAME Site Final Restoration at Former Chevron Site The undersigned Contractor approves the foregoing Change Order as to the changes, if any, in the contract price specified for each item, including any and all supervision costs and other miscellaneous costs relating to the change in work, and as to the extension of time allowed, if any, for completion of the entire work due to said Change Order This document will become a supplement of the contract and all provisions will apply hereto It is understood that this Change Order shall be effective when approved by the City of Bremerton The parties whose names appear below warrant that they are authorized to enter into a change order that is binding on the parties of this contract In addition, Contractor warrants that it has or will inform the surety of this change, and shall take appropriate action to modify any bonds required under the contract to address this change CONTRACTOR Approved DATE PROJECT MANAGER Recommended DATE CITY ENGINEER Council action is required as project cost will exceed approved budget ❑ Yes ❑ No Council action is required as change exceeds Mayors authority per BMC 2 76 110 ❑ Yes ❑ No Recommended DATE DIRECTOR OF PUBLIC WORKS AND UTILITIES Recommended DATE MAYOR Approved DATE APPROVED AS TO FORM: ATTEST: Bremerton City Attorney City Clerk Page 2of2 qA Move to authorize the city attorney to join a coalition of Washington Cities appealing the Department of Ecology standards related to the Phase II National Pollutant Discharge Elimination System (NPDES) Permit, to enter into an Interlocal Agreement in substantially the same form as presented to council, to pay $20,000 for the retention of legal services and litigation costs for the appeal as contemplated in the draft Interlocal Agreement, and to file documents and enter into any agreements as necessary to pursue the appeal. INTERLOCAL AGREEMENT BETWEEN THE CITIES OF AUBURN, BAINBRIDGE ISLAND, BELLEVUE, BURLINGTON, DES MOINES, EVERETT, ISSAQUAH, KENT, MOUNT VERNON, RENTON, SEATAC, SNOQUALMIE AND SUMNER AND COWLITZ COUNTY REGARDING LEGAL SERVICES THIS INTERLOCAL AGREEMENT ( "Agreement') is entered into between the Cities of Auburn, Bainbridge Island, Bellevue, Burlington, Des Moines, Everett, Issaquah, Kent, Mount Vernon, Renton, SeaTac, Snoqualmie, Sumner and Cowlitz County and any other Phase II Permittees that might loin this Coalition of Governmental Entities (collectively, "Coalition ") RECITALS 1 The members of the Coalition are public agencies as defined by Ch 39 34 of the Revised Code of Washington, and may enter into interlocal agreements on the basis of mutual advantage to provide services and facilities in the manner and pursuant to forms of governmental organization that will, accord best with geographic, economic, population, and other factors influencing the needs and development of local communities 2. The Phase II National Pollutant Discharge Elimination System ( NPDES) Permit is required under provisions of the Federal Clean Water Act and requires members of the Coalition in Washington to develop and maintain storm water programs The Department of Ecology (DOE) has adopted standards (DOE Standards) purportedly under the NPDES Permit authority that may impose costly burdens on landowners, including members of the Coalition and may also cause costly legal challenges to members of the Coalition as a result of enforcing DOE Standards 3 The potential impact of the DOE Standards on members of the Coalition and property owners is so significant and far - reaching, members of the Coalition are joining together to explore all legal and other avenues available to challenge the DOE Standards including but not limited to filing an appeal with the Pollution Control Hearings Board The appeal deadline is August 31, 2012, the effective date of the DOE Standards Members of the Coalition wish to retain outside counsel (Counsel) to represent the Coalition in said legal challenge(s) and wish to collectively pay Counsel as further set forth below 4. NOW THEREFORE, in consideration of the terms and provisions contained herein, Coalition agrees as follows. AGREEMENT 1. Purpose It is the purpose of this Agreement to have the Coalition collectively pay for the legal services of Foster Pepper PLLC, or other selected legal counsel(Legal Services) to represent the Coalition's interests in any legal challenges to the NPDES Phase II permits (Litigation). 2 Duration This Agreement shall be effective August 13, 2012, irrespective of the date members of the Coalition execute this Agreement. Unless terminated by any party in accordance with Paragraph 5, Termination, the Agreement shall remain in full force and effect through conclusion of the Legal Services either through settlement of the dispute with the State of Washington, Pollution Control Hearings Board order, court order or other court disposition by the highest court authorized to hear an appeal of this matter, and/or other mutual resolution of the legal challenge or Legal Services as agreed to among members of the Coalition as provided in Paragraph 5.2 of this Agreement. 3 Administration Coalition shall enter into a Joint Prosecution Agreement for the administration of the Legal Services and Litigation Said Joint Prosecution Agreement shall include, but need not be limited to, a confidentiality agreement, establishing a structure for the administration and oversight of the Legal Services and Litigation that is efficient and effective given the number of Coalition who are parties to this Agreement, including oversight of the legal costs incurred pursuant to this Agreement and any other subjects necessary or appropriate to the administration of the Legal Services and prosecution of the Litigation If this Agreement is effective prior to finalizing the Joint Prosecution Agreement, Coalition authorize the City of Bellevue to be Lead Agency to do all things necessary and/or appropriate to pursue the Litigation on behalf of Coalition including but not limited entering into an agreement for Legal Services as contemplated herein 4 Payment 41 The Legal Services' fees and costs shall be shared by members of the Coalition based upon the cost - sharing formula set forth in Exhibit "A" attached hereto and incorporated by this reference This obligation shall continue through conclusion of the Legal Services as provided in Paragraph 2 above, unless a member of the Coalition terminates its participation in this Agreement as provided in Paragraph 5 Members of the Coalition hereby authorize said fees and costs up to $255,000 The amount of this authorization may be increased administratively with the addition of new Coalition members up to a total of $500,000 Provided, however, any increase in the cost of legal services that would require additional payments from any Coalition members in excess of the obligations set forth in Exhibit "A" shall require amendment of this Agreement unless an individual Coalition member expressly volunteers to increase its share without the necessity of amendment of this Interlocal Agreement 4 2 The provider of Legal Services shall provide a monthly bill of its fees and costs to Bellevue Bellevue shall timely pay the bill on behalf of Coalition. Within 15 days of approval of this Agreement, each member of the Coalition shall remit its proportionate share of the fees and costs to the City of Bellevue Bellevue shall place these funds into an interest - bearing account, with any interest derived from these funds to be applied to the costs of the provider of Legal Services At the time of drafting of this Agreement 12 governmental entities have committed to joining this appeal, and based upon the cost sharing formula set forth in Exhibit "A" hereto, each member of the Coalition is obligated to make payment of its proportionate share to the City of Bellevue In the event Bellevue must take legal action to collect any amount due from a member of the Coalition, Bellevue shall be entitled to recover all costs for said action including reasonable attorney's fees. 4 3 In the event additional governmental entities loin this Agreement, each new member of the Coalition shall be obligated to payment to the City of Bellevue based upon the cost - sharing formula set forth in Exhibit "A" 4 4 While it is recognized that members of the Coalition may not be able to sign this Agreement before August 31, 2012 it is agreed that the members will benefit from the Legal Services provided herein Therefore, it is presumed that a member of the Coalition which enters into and signs this Agreement agrees to pay for Legal Services performed from and after August 13, 2012, regardless of the date of signing. Adjustments to amounts previously billed and received by Bellevue due to later joining members of the Coalition will be reconciled on a semi annual basis 5 Termination 51 Termination by Notice Any participating member of the Coalition may terminate its participation in this Agreement by providing at least sixty (60) days prior written notice to all other participating members The terminating member must pay the full share of the Legal Services Fees and Costs due through the date of termination three months from the date of Notice Should it become necessary to amend this Agreement to increase the authorized total amount of fees and costs set forth in Paragraph 41, or a member's proportionate share pursuant to Paragraph 4 3, any member may terminate its participation in this Agreement by providing written nonce to all other participating members within 15 days of receiving written notice of the request to amend fees and costs This termination shall not affect the obligation of the terminating member to pay its full share of the currently authorized Legal Services Fees and Costs, and shall not entitle the terminating member to any refund of monies already paid to the Coalition Except as provided in Paragraph 5 2, the termination of a member's participation in this Agreement shall not result in the termination of this Agreement with respect to other members of the Coalition. 5 2 Termination by Mutual Written Agreement. This Agreement may be terminated at any time by mutual written agreement of a majority of the then participating members of the Coalition Members shall be obligated to pay for Legal Services incurred to the date of Notice to the provider of Legal Services that its services are no longer needed and any reasonable additional fees and costs necessary to conclude its Legal Services 5 3 Distribution of Assets upon Termination. It is not anticipated that any assets will be acquired as a result of participating in this Agreement. If, however, any assets are acquired with point funds of the Members of the Coalition, those assets will be equally divided among the members at the assets fair market value upon termination The value of the assets shall be determined by using commonly accepted methods of valuation. Additionally, any funds remaining in the interest - bearing account following conclusion of all Legal Services shall be divided among the members of the Coalition in amounts proportionate to the members' contributions to the Agreement based upon the cost - sharing formula contained in Exhibit "A and any other voluntary contributions made by that member 6 Miscellaneous 61 Amendments Except as expressly provided herein, this Agreement may only be amended by mutual written agreement of the members of the Coalition 6 2 Severability If any section of this Agreement is adjudicated to be invalid, such action shall not affect the validity of any section not so adjudicated. 6 3 Interpretation The legal presumption that an ambiguous term of this Agreement should be interpreted against the party who prepared the Agreement shall not apply 6 4 Ownership of Property Any property owned and used by Bellevue in connection with this Agreement shall remain the property of Bellevue and any property owned and used by any other participating member of the Coalition shall remain the property of that member, unless otherwise specifically provided in this Agreement or its amendment 6 5 Nonce All communications regarding this Agreement will be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary Any written notice shall become effective upon personal service or three (3) business days after the date of mailing by registered or certified mad, and will be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or any other address if later specified in writing Except for the requirement of Notice as provided in this Agreement, nothing herein shall be construed to prevent the members of the Coalition from communicating among themselves by email, fax or other electronic means Any governmental agency not specifically named herein, that later loins in this Agreement, shall give to all members of the Coalition then participating under this Agreement written notice of the name and address of the person that can accept notices on behalf of such joining governmental agency 6 6 Counterparts This Agreement may be entered into with any number of counterparts which, taken collectively, will constitute one entire agreement 6 7 Ratification and Confirmation. All acts taken prior to the effective date of this Agreement that are consistent with the intent and purpose of the same are hereby ratified and confirmed retroactive to August 13, 2012. 6 8 Dispute Resolution Should any dispute arise among members of the Coalition or between one or more members related to the interpretation, application or administration of this Agreement, the disputing parties shall participate in a good faith mediation effort to resolve their differences prior to bringing any legal action 6 9 Compliance with RCW 39 34 040. Members of the Coalition entering into this Agreement shall be responsible for ensuring that it is filed in accordance with RCW 39 34 040 IN WITNESS, the parties below execute this Agreement, which shall become effective August , 2012 AUBURN: BAINBRIDGE ISLAND: CITY OF AUBURN CITY OF BAINBRIDGE ISLAND By By Print Name Print Name - Its Its Date: Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: I BELLEVUE: BURLINGTON: I CITY OF BELLEVUE CITY OF BURLINGTON By By. Print Name Print Name: Its Its Date Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: DES MOINES: EVERETT: CITY OF DES MOINES CITY OF EVERETT By By Print Name Print Name Its Its Date Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: ISSAQUAH: KENT: CITY OF ISSAQUAH CITY OF KENT By By Print Name Print Name - Its. Its - Date Date. NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: MOUNT VERNON: RENTON: CITY OF MOUNT VERNON RENTON By By: Print Name Print Name Its Its - Date Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) Facsimile - Facsimile APPROVED AS TO FORM: APPROVED AS TO FORM: SEATAC: SNOQUALMIE: CITY OF SEATAC CITY OF SNOQUALMIE By By Print Name Print Name: Its Its• Date • Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: SUMNER: COWLITZ : CITY OF SUMNER COWLITZ COUNTY B B Print Name Print Name Its Its Date Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: i i I I ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: CAMAS: KIRKLAND: CITY OF CAMAS CITY OF KIRKLAND By By Print Name. Print Name Its: Its: Date Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: LONGVIEW: SAMMAMISH: CITY OF LONGVIEW CITY OF SAMMAMISH By By Print Name Print Name Its. Its. Date Date NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: ( ) - (Telephone) ( ) - (Telephone) ( ) - (Facsimile) ( ) - (Facsimile) APPROVED AS TO FORM: APPROVED AS TO FORM: i i EXHIBIT "A" TO INTERLOCAL AGREEMENT REGARDING LEGAL SERVICES For purposes of pursuing an appeal of the 2013 -18 NPDES permit issued by the state Department of Ecology on August 1, 2012, the following delineates the financial contributions to be made by members of the Governmental Entities Coalition Entities with a population of up to 10,000 $10,000 Entities with a population between 10,001 and 30,000 $15,000 Entities with a population between 30,001 and 50,000 $20,000 Entities with a population above 50,000 $25,000