HomeMy WebLinkAbout02/02/05 AGENDA
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CITY COUNCIL 34S 6th Street, Suite 600, Bremerton, WA 98337-1873 03' (360) 473-S280
FEBRUARY 2, 2005
CITY COUNCIL MEETING AGENDA
1. PRE-COUNCIL STUDY SESSION: 5:00 - 5:30 P.M. in COUNCIL CONFERENCE ROOM 603
A. General Council Business
2. CALL TO ORDER: 5:30 P.M. in MEETING CHAMBERS LOCATED ON FIRST FLOOR
A. Pledge of Allegiance
B. Invocation
3. MAYOR'S REPORT
4.
PUBLIC SERVICE ANNOUNCEMENTS
r~
5. CONSENT AGENDA
A. Claims & Check Register (#ABOS-026)
B. Reappointment of Jessica Kennedy to the Planning Commission (#ABOS-027) I
C. Appointment of Jeffry J. Young to the Civil Service Commission (#ABOS-028) 5
D. Sole Source Purchase of two (2) Hooklift Vehicle Bed Systems from CASCADE CONTAINER (#ABOS-029) 8
E. Computer System Services Agreement with EMERGENCY REPORTING, INC. to provide a Web-based 't
Records Management System; and a CAD link from CENCOM to the Records Management System
(#ABOS-030)
F. Interlocal Agreement between the CITY OF PORT ORCHARD and the CITY OF BREMERTON relating to Marine ~ ~
Patrol Services (#ABOS-031)
6.
GENERAL BUSINESS
A. Commercial Real Estate Purchase and Sale Agreement; and Right of First Refusal and Option to
Purchase Agreement with WESTSOUND BANK (#ABOS-032)
Real Estate Purchase and Sale Agreement with KITSAP COMMUNITY FEDERAL CREDIT UNION (#ABOS-033) 57
Parking Agreement for the NORM DICKS GOVERNMENT CENTER (#ABOS-034) ~ 7
Har96f5idc:: CUlldulllil'lil:lffiS Agreelllent between I<ITSAP COUNTY, KIT8AP COUNTY CON;:)VLluATED I lOUSING 1 d-
~JTl-lnRIT'(, <linn thl'l r.ITV OF RRl=ul=RTON regarding ~ C'JAtiRge,"lluCirl A~Ic::c::"lel'lt (#/\905 OJ i)
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B.
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7. ORDINANCES & RESOLUTIONS
A. Resolution No. 29S2 authorizing transfer of $1S0,OOO from the General Fund to the Abatement Revolving q 0
Fund (#ABOS-036)
B. Resolution No. 29S3 authorizing Cable Franchise Renewal Proceedings with COMCAST (#ABOS-037) q 3
c. Ordinance No. 4931 amending Chapter 3.08 "CLAIMS FUND" of the Bremerton Municipal Code relating to q C{
Issuance of Warrants or Checks (#ABOS-038)
8. PUBLIC RECOGNITION
9. COUNCIL MEMBER REPORTS
10. ADJOURNMENT OF CITYCOUNCIL BUSINESS MEETING
II Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special
accommodations should contact the City Clerk's Office at (360) 473-5323 by noon on the Monday preceding the
Council meeting.
DATE SUHh.1ITTED:
BILL # CJs-:- 02(,
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
5A
Dsemmse~6E~~QeEemDmm~~ED~~GGm~~~&~mm~~~.mmmDmmmR8mm~s~emDGenmmmm@~meBme~gGSEBmEe~m85BBEI
SUBJECT: Approval of Claims and Checks
Register
COlllinitlee Meeting Date:
COUNCIL MEETll-.JG Date: ~ -;( --O.s-
Department: Financial Services
Presenter: Cathy J olmson
Phone: 473-5296
SUMMARY: Consent agenda item. Approval of payroll, checks and electronic fund transfers.
ATTACHMENTS:
FISCAL IMPACTS (Include Budgeted Amount):.
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT: --=:::p>~ I~
RECOMMENDED MOTION: Move to Approve:
;;<.. 97;<' -;<'1 - .2 '? 7587
1) Check#'s 2'17"Jo3 through;297.20Y and EFT's ~~GI through!/? 7S-
I CONSENT AGENDA 01
2) Regular Payroll for the pay period ending
in the amount of $ ?53 5, ?37. 90
in the amount of $
3) Retiree Payroll for the pay period ending
in the amount of $
COUNCIL ACTION: ~prove 0 Deny 0 Table
o Continue 0 No Action
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
BILL # O,? - 0.21_
DATE SUBMITTED: January 18, 2005
55
........................................................................................
SUBJECT: Reappointment to the
Planning Commission
Committee Meeting Date: January 26, 2005
COUNCIL MEETING Date: February 2, 2005
Department: Executive
Presenter: Mayor Bozeman
Phone: 473-5266
SUMMARY: Jessica Kennedy's term on the Planning Commission will expire February 1,2005. It
is recommended she be reappointed to another four year term on the Planning Commission.
ATTACHMENTS: Application for reappointment.
FISCAL IMPACTS (Include Budgeted Amount): N/A
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
~~/~
.1J.
--------
CONSENT AGENDA
RECOMMENDED MOTION: Move to confirm the appointment of Jessica Kennedy to another
four year term on the Planning Commission.
COUNCIL ACTION: 0 Approve 0 Deny 0 Table
I
o Continue D No Action
---..-.---..-, -.-
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01/11/2005 1j:58 FAX j604797255
APPL\CATION FOR CITY BOARDS/COMMISSIONS/COMMITTEE
NOTE:
As an applicant for a City Board. Commission or Committee, your name. address, and
telephone number will be available to the press and public. You will be contacted
before any action Is taken on your ~ppointment.
DATE: ~ lIt 1.1$?
HOMi-!~5131?fJ(O
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ADDRESS: ..~tm jJpa hie I ~/~ wA-- 41'331
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EDUCATION: - 0
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NAME:
PHONE: ~~J111'1~
HOME ADDRESS:
'.
LOCAL REFERENCES (name & phone number):
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I AM INTERESTED IN SERVING ON (please check one or more):
(). Disability Action Committee ~ Planning Commission
( ) Civil Service Commission {")' Parks & Recreation Commission
( ) Ethics Commission { } Cltlzen"s Commi$Slon on Council
Salaries
( ) Public Access Citizens Advisory Committee ( } parking Advisory Board
.. -. -. . -- .. - ..
OJ..
01/11/2005 13:58 FAX 3604797255
-..--"-.- -
_.----
WINDERMERE REAL ESTATE
--. ~ -----.-
@OOJ
Advisory Committee
( ) Bremerton Housing Authority
.. A it) Other
Is this an application for reappointment?~
If yes, how many years have you served o'tthis commission/committee?
1 ~~~1YJ.
Please turn page -+
WHY ARE YOU APPLYING FOR THIS APOINTMENT?
WHICH OF YOUR PERSONAL ANDIOR PROFESSIONAL INTERESTS PROMPTED YOU TO APPLY
FO THIS APPOINTMEN
HAVE YOU SERVED ON ANY OTHER BREMERTON BOARD, COMMISSION, COMMITTEE OR TASK
F~E? IF YES, ~ST: . .
.~ ~ .~ f'fMitJ/LIj";t>..ILt'~ chznt/;j)~ tlU'PI~) .
01/11/2005 13:59 FAX 3604797255
_ WINDERMERE REAL ESTATE
141 004
ACTMTlES)?
We welcome your willingness to serve Bremerton. Please return this completed form to:
Mayors Office
345 6th Street, Suite 600
Bremerton, WA 98337
(3&0) 473-5266
(380) 473-5883 FAX
E-mail: mayor@ci.bremerton.wa.us
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DATE SUBMITTED: January 20, 2005
BILL # O~, O~e
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
5G
........................................................................................
SUBJECT: Appointment to the
Civil Service Commission
Committee Meeting Date: January 26, 2005
COUNCIL MEETING Date: February 2, 2005
Department: Executive
Presenter: Mayor Bozeman
Phone: 473-5266
SUMMARY: There is a vacancy on the Civil Service Commission due to the resignation of John
Lyall. It is recommended Jeffry J. Young be appointed to fill the vacancy.
ATTACHMENTS: Application for appointment.
FISCAL IMPACTS (Include Budgeted Amount): N/A
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MA YOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
--
I CONSENT AGENDA )(j
RECOMMENDED MOTION: Move to confirm the a pointment of Jeffry Young to the Civil
Service Commission.
COUNCIL ACTION: 0 Approve D Deny D Table
./
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D Continue D No Action
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Application For City Boards/ Commissions/ Committee
Note: As an applicant for a City Board, Commission or Committee, your name, address, and
telephone number will be available to the press and public. You will be contacted before any
action is taken on your appointment.
(Please type or print clearly)
Date: 12/14/04
Name: Jeffry
FIRST
J
MIDDLE
Young
LAST
Home Address:
NUMBER STREET
Occupation: Associate Professor
Home Phone: (360) ~
WA
STATE
98337
Bremerton
CITY
ZIP
Employer: Northcentral University
Work Address: same
NUMBER STREET
ZIP
Work Phone: (same
)
Fax: (same
)
E-Mail: youngj@onechoice.net
STATE
CITY
Education: B.A. & M.A. San Jose State University, Ph.D. Claremont Graduate School; Psychology
Local References (names and phone numbers):
Tim Sholtis 473-5277
Jim Pickett 698-7840
Tom Knuckey 473-2376
I am interested in serving (please check one or more):
o Disability Action Committee
X Civil Service Commission (18 yrs. and older)
o Urban Forest Committee
o Public Access Citizens Advisory Committee
o Community Development Block Grant Advisory Board
o Youth Council
o Safe Streets Steering Committee
o Board of Appeals, Housing/Building Codes
o Other
o Planning Commission (18 yrs. and older)
o Parks & Recreation Commission
o Ethics Commission
o Parking Advisory Board
o Mayor's Select Committee on Law Enforcement
o Bremerton Housing Authority
o Solid Waste Management
o Citizen's Commission on Council Salaries
Is this an application for reappointment? no
If yes, how many years have you served on this commission/committee?
Why are you applying for this appointment? To assist the City in retaining the best possible workforce
I.p
City Appointment Application
Page I of2
Which of your personal and/or professional interests prompted you to apply for this appointment?
Fairness, civil service, community interest, voluntarism, growth and development, city employees
Have you ever served on any other Bremerton Board, Commission, Committee or Task Force? If yes,
please list: no
Please list your qualifications for this appointment (include skills, activities, training, education):
excellent reading and writing ability, familiarity with civil service, graduate education, testing experience, first
to ever fill in this form and submit online
What are your community interests (committees, organizations, special activities)? Naval Memorial
Museum of the Pacific, Admiral Theatre, Kitsap Peninsula Mycological Society,
We welcome your willingness to serve Bremerton. For more information please contact the Mayor's Office at
(360) 473-5266, FAX (360) 473-5883 or via email at mayor@ci.bremerton.wa.us. Please return the completed
form to: Mayor's Office, 239 4th Street, Bremerton WA 98337.
7
City Appointment Application
Page 2 of2
DATE SUBMITTED:
BILL # ()r"o:ll
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
5D
........................................................................................
SUBJECT: Purchase of two (2) hooklift
vehicle bed systems.
Committee Meeting Date: 1/26/05
COUNCIL MEETING Date: 2/2/05
Department: Public Works &
Utilities
Presenter: Jim Orton
Phone: 5359
SUMMARY: In 2002 Public Works & Utilities purchased 2 hooklift trucks. These vehicles have the
abilility to utilize different bed configurations on one chassis. In 2005 Public Works & Utilities would
like to purchase 2 more. Sole source purchase from Cascade Containers is strongly recommended to
keep uniformity in the fleet so that each of the four hooklift vehicles can utilize any of the beds. We
will be reducing the fleet size by two 1 ton trucks. Total cost of hooklift kits and beds is $74,065.74
including sales tax.
ATTACHMENTS: none
FISCAL IMPACTS (Include Budgeted Amount): The $74,065.74 cost of purchase is budgeted in
the Equipment Replacement Fund for 2005.
APPROVALS:
DEPARTMENT DIRECTOR.
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
1\
\. 'c
I CONSENT AGENDA~-
FISCALIBUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION: ~~~f,~~ r ~ approve a sole source purchase from Cascade
Container Company for two (2) hooklift packages for a total purchase price of 74,065.74 including
tax.
COUNCIL ACTION: 0 Approve 0 Deny 0 Table
o Continue 0 No Action
B
DATE SUBMITfED: 01-19-05
BILL # O~- D 30
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
5E
........................................................................................
SUBJECT: A contract with Emergency
Reporting, Inc to provide a web-based
Records Management system and a CAD
link from CenCom to the Records
Management System.
Committee Meeting Date: 01-22-05
COUNCIL MEETING Date: 02-02-05
Department: FIRE
Presenter: AI Duke, Fire Chief
Phone: 478-5381
SUMMARY: The Fire Department currently uses a DOS based records management system that is
extremely out-dated and is on two separate platforms. The Fire Department has evaluated major fire
Record Management Systems and is recommending Emergency Reporting for approval.
ATTACHMENTS: Agreements
FISCAL IMPACTS (Include Budgeted Amount): $3492 a year, (on-going maintenance) for the
Records Management System. $ 5,000 to build an interface with the CenCom CAD system and $
5,000 to build an interfac~~?.th~.Y~t..~s Design for medical billing. Both are one time expenses. The
fund\)will come from th(')Bond 'PUner"
~Q'" \......12 (!).....t. -+-, ""'II. Q..)' V Q.S .
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
CONSENT AGENDA
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
Move to approve the contract with Emergency Reporting for a Records Management System and
authorize the Mayor to finalize and execute the agreement in substantially the same form as presented.
Move to approve the contract with Em~rgency Reporting for a CAD interface and authorize the
Mayor to finalize and execute the agreement in substantially the same form as presented.
COUNCIL ACTION: D Approve D Deny D Table
D Continue D No Action
~
Computer System Services Agreement -
Standard Agreement for City of Bremerton, W A
This Computer System Services Agreement ("Agreement") is made and entered into this
day of , 2005 (the Effective Date") by and between Reporting
Systems, Inc. ("RSI") a Washington State "s" corporation, doing business as Emergency
Reporting, located at 851 Coho Way, Suite #307, Bellingham, WA 98225, and the City
of Bremerton ("Agency"), a Washington municipality with an office at 817 Pacific Ave.,
Bremerton, WA 98337.
Recitals
Whereas RSI provides a Web-based, remote-access Fire and Emergency Medical
Services Records Management System ("Fire/EMS RMS"); and
Whereas RSI has the capability and desires to provide these services to the Agency; and
Whereas the Agency desires to obtain these services from RSI solely in accordance with
terms and conditions set forth in this Agreement:
Now, Therefore, the parties hereto agree as follows:
1.0. DEFINITIONS
1.1. "Fire/EMS. RMS" means the Fire and Emergency Medical Service Records
Management System provided py Reporting Systems, Inc.
1.2. "Web site" means the internet web site accessible at
..http//www.emergencyreporting.com.. that is maintained by Reporting Systems,
Inc. provides access to Fire/EMS RMS.
1.3. "Station" means each separate physical fire station. Each of these Stations may
have multiple computers with access to the Website.
1.4. "Emergency Response Data" means all information entered by the Agency related
to the Agency's response to fire and emergency medical incidents and as required
by the current and future National Fire Incident Reporting System (NFIRS) and
National Highway Traffic Safety Administration (NHTSA) standards.
2.0. SERVICES
2.1. RSI shall provide to the Agency access to the Fire/EMS RMS via the Internet
utilizing the current version of Microsoft Internet Explorer.
Reporting Systems, Inc.
Standard Agreement
to
1
2.2. RSI shall collect emergency response data via a website accessible at
http//www.emergencyreporting.comorthroughaparticipatingagencywebsite.in
which the Agency is an active member.
2.3. All data collected via the website above shall be compliant with FEMA's National
Fire Incident Reporting System (NFIRS) Release 5.0 or the National Highway
Safety Administration (NHTSA) Release 2.0 Federal Department of
Transportation's Uniform Pre-Hospital Emergency Medical (EMS) Data
Conference.
2.4. RSI shall provide ongoing updates, changes, and bug fixes, at no additional
charge, to remain. compliant with NFIRS and NHTSA standards and to remain
operational with new releases of Internet Explorer and other software necessary
for the operation of Fire/EMS RMS.
2.5. RSI shall upload via the Internet, transfer via electronic media, or otherwise
transmit appropriate NFIRS and/or NHST A data to the appropriate state office as
necessary to meet the Agency's reporting requirements.
2.6. RSI shall export the Agency's data to the Agency on electronic media once a
year.
2.7. Within thirty days of execution RSI shall provide to the Agency's personnel train-
the-trainer training in the proper use of the Fire/EMS RMS and the website to
include data entry, report generation, operation and administration.
2.8. RSI shall ensure appropriate security and privacy of all data transmitted to the
website in compliance with HIP AA regulations and all other applicable federal,
state and/or local rules, regulations and/or laws.
2.9. RSI shall maintain the Website and store the Agency's data at the Bellingham
Fibercloud Data Center. If RSI utilizes another data center in the future, it shall
meet or exceed the accessibility, reliability, and security standards of the
Fibercloud Data Center.
2.10. RSI shall provide the Website to be accessible by current browser technology
(Internet Explorer 5.5) as standardized by the W3C (World Wide Web
Consortium). In the event that non-standard browsers must be supported,
additional time and funding may need to negotiated separately from this
Agreement.
2.11. RSI shall provide at least daily data backups to guard against data loss in the
event of catastrophic system failure.
Reporting Systems, Inc.
Standard Agreement
2
I \
2.12. RSI shall maintain all data submitted on the Website for a period of eight years
(96 months) from the time of submission by the Agency. Data older than eight
years shall be archived and removed from the servers, but may be reloaded for a
nominal fee if the data is needed.
2.13. RSI shall begin these services with thirty days of execution on this Agreement.
3.0. FUTURE SERVICES AND MODIFICATIONS
3.1. Upon execution of this Agreement, RSI shall begin discussions with Agency
regarding the CAD Interface.
3.2. RSI shall make available to the Agency the ability to download the Agency's
reports from the Website to the Agency's computer upon the release of the
reporting program as decided by RSI.
3.3. RSI shall convert the Agency's existing Fire/EMS records from the records
current format in the Agency's system to the Fire/EMS RMS format and import
the records into the Fire/EMS RMS for a fee of $0.07 to $.lOper record, provided
the Agency is using a nationally recognized fire software program.
4.0. SERVICE AVAILABILITY COMMITMENT
4.1. RSI warrants that the Fire/EMS RMS shall be operational and available for access
by the Agency 99% of the time during any given month.
4.2. RSI shall not be responsible for Service Interruptions for reasons outside RSI's
andlor the Bellingham Fibercloud Data Center's reasonable control such as
failures of the Agency's ISP or failure of the Internet.
4.3. Service suspensions due to scheduled system maintenance or upgrades shall not
be considered a Service Interruption so long as RSI has notified the Agency of
such suspension at least twenty-four hours in advance.
4.4. If a Service Interruption occurs despite the fact that the Agency fulfills all of its
obligations under this Agreement, the Agency shall have the following remedy:
RSI will provide a pro-rata credit on the Agency's fee for the month in which the
Service Interruption occurred. The pro-rata credit shall be calculated by
multiplying the Service Interruption percentage by the Agency's total monthly fee
for the month in which the Service Interruption occurred. This credit will be
applied against the next invoice from RSI. Furthermore, if the Agency
experiences a Service Interruption within three consecutive months, the Agency
has the option to terminate the Agreement.
Reporting Systems, Inc.
Standard Agreement
3
IJ.-
5.0 AGENCY RESPONSIBILITIES
5.1 The Agency shall maintain an active user list of accounts that are authorized to
access the Website.
5.2. The Agency shall pay all valid invoices in a timely manner.
5.3 The Agency shall provide an active Internet Service Provider (ISP) to access the
Web site. Such ISP charges are not included in this Agreement. ISP failures are
not the responsibility of RSI.
5.4 The Agency shall enter emergency response data into the Website per instructions
included in the training provided by RSI.
6.0 FEES AND PAYMENTS
6.1. In consideration of the services described herein provided by RSI, the Agency
shall pay the fees as defined in the Emergency Reporting Order Form. RSI shall
invoice the Agency on a quarterly or annual basis. The invoices will be due thirty
days from receipt by Agency.
6.2. In the event that the Agency adds a station or changes the location of a station
during the initial term of this Agreement, the fee for the new station shall be the
same as the fee for the existing stations as defined in the Order Form.
6.3. In the event that the Agency reduces the number of stations, the fee for that
station(s) shall be eliminated.
6.4. The fees may be renegotiated upon renewal of this Agreement. RSI must notify
the Agency of any changes in the fees at least ninety (90) days prior to renewal.
In no event will the fees exceed the standard, advertised fees RSI charges for
equivalent services at the time of renewal.
6.5. All amounts payable hereunder shall be payable in United States funds without
deductions for taxes or assessments.
6.6. The Agency shall be responsible for paying sale, use, excise, value-added, or
other tax or governmental charges impose on the use of the services provided for
herein.
6.7. The fees shall be established in Appendix A remain the same for the term of the
Agreement.
Reporting Systems, Inc.
Standard Agreement
4
1."3
7.0. DATA OWNERSHIP AND CONFIDENTIALITY
7.1. All data transmitted to the website shall remain the property of the Agency.
Retransmission of this data to the State of Washington and FEMA is authorized.
Modifying, deleting or other modifications of submitted data by RSI is prohibited.
Scientific research that is based on broad data trends is authorized, but no Agency
specific data must be visible to any third parties.
7.2. Each party agrees to keep confidential information disclosed to it by the other
party in accordance herewith, and to protect the confidentiality thereof in the
same manner it protects the confidentiality of similar information and data of its
own (at all times exercising at least a reasonable degree of care in the protection
of confidential information); provided, however, that neither party shall have any
such obligations with respect to use of disclosure to other not parties of this
Agreement of such confidential information as can be established to: (a) have
been known publicly; (b) have been known generally in the industry before
communication by the disclosing party to the recipient; (c) have become known
publicly, without the fault on the part of the recipient, subsequent to disclosure by
the disclosing party; (d) have been known otherwise by the recipient before
communication by the disclosing party; or (e) has been received by the recipient
without any obligation of confidentiality from a source, other than the disclosing
party, lawfully having possession of such information. Notwithstanding the
above, the parties agree to keep confidential all confidential information except as
legally required under Washington State law or as otherwise required under
applicable statute.
7.3. The parities obligations under this Article 7 will survive the termination of this
agreement.
8.0. TERM
8.1. The term of this Agreement shall be three (3) years, from February 1, 2005
through December 31, 2007.
9.0. NONASSIGNABILITY
Neither Party may assign their rights or obligations under this Agreement without
the prior written consent of the other Party.
10.0. SOFTWARE ESCROW
10.1. RIS shall deposit the Software Source Code with National Software Escrow, Inc.
Reporting Systems, Inc.
Standard Agreement
5
l'f
10.2. The Agency will pay the annual escrow fee to National Software Escrow, Inc.
The fee for the initial one-year term shall be three hundred and fifty dollars
($350.00).
11.0. DEFAULT AND TERMINATION
Termination: This Agreement shall remain in force until completion and
acceptance of the services, terminated by written instrument upon mutual consent,
or by the City of Bremerton for convenience. This Agreement may be
immediately terminated for cause by a Party if the other Party substantially fails
to perform through no fault of the terminating Party, and the non-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 RSI shall include a report showing the status of all items listed in
the Scope of Work current through the termination date.
If the City receives reimbursement by any federal, state, or other source for work
described in Sections 2.0-2.13 herein, and that funding is withdrawn, reduced or
limited in any way, or the project is cancelled or substantially reduced after the
execution date of this Agreement and prior to the completion of the work, the City
may summarily terminate this Agreement.
A. Excusable Delavs: The right of RSI to proceed shall not be terminated nor
shall RSI 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) any acts of the City, its consultants, 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 RSI, including, but not
restricted to, acts of God, fires, floods, strikes, or weather of unusual severity.
PROVIDED, HOWEVER, that RSI must promptly notify the City within ten (10)
calendar days in writing of the cause of the delay. If, on the basis of the facts and
the terms of this Agreement, the delay is properly excusable, the City shall, in
writing, extend the time for completing the work for a period of time
commensurate with the period of excusable delay.
B. Rights Upon Termination: In the event of termination, the City shall pay for all
services performed by RSI to the effective date of termination, as described on a
final invoice submitted to the City. After termination, the City may take
possession of all records and data within the RSI's possession pertaining to this
project which may be used by the City without restriction. Any such use not
related to the project which RSI was contracted to perform shall be without
liability or legal exposure to RSI. .
Reporting Systems, Inc.
Standard Agreement
6
/5
12.0. COPYRIGHT AND INDEMNIFICATION
12.1. The Agency agrees not to license, sell, publish or create any kind of derivative
system using the RSI website as source of information.
RSI is not responsible for data loss as a result of Agency error or sabotage by
Agency or unauthorized personnel.
The Agency will be expected to provide additional backup services, if necessary,
which go beyond the standard backup services provided by RSI.
RSIshall defend, indemnify and hold the City, its officers, officials, employees,
agents and volunteers harmless from any and all claims, injuries, damages, losses
or suits, including all legal costs and attorney fees, arising out of or in connection
with the performance of this Agreement, except for that portion of the injuries
and damages caused by the City's sole negligence.
The City's review or acceptance of any of the work when completed shall not be
grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject
to RCW 4.24.115, then, in the event ofliability for damages arising out of bodily
injury to persons or damages to property caused by or resulting from the
concurrent negligence of RSI and the City, its officers, officials, employees,
agents and volunteers, RSI's liability hereunder shall be only to the extent of RSI's
negligence.
IT IS FURTHER SPECIFICALL Y AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES RSI'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR
THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS
WAIVER.
The provisions of this section shall survive the expiration or termination of this
Agreement.
13.0. NOTICES
13.1. All notices, authorizations, and requests in connection with this Agreement will
be deemed given (a) five days after being deposited in the U.S. mail postage
prepaid, certified or registered, return receipt requested; or (b) one day after being
sent by overnight courier, charges prepaid, with a confirming FAX.
Reporting Systems, Inc.
Standard Agreement
7
l~
14.0. GOVERNING LAW AND VENUE
14.1 The validity, interpretation, construction, and performance of this Agreement will
be governed by the laws of the State of Washington. Sole and exclusive
jurisdiction for any action or proceeding arising out of or related to this
Agreement will be in Kitsap County Superior Court, or the United States District
Court for the Western District of Washington State.
15.0. SEVERABILITY
15.1. If a court of competent jurisdiction holds any part, term, or provision of this
Agreement to be illegal or invalid in whole or in part, the validity of the
remaining provisions shall not be affected, and the parties' rights and obligations
shall be construed and enforced as if the Agreement did not contain the particular
provision held to be invalid.
15.2. If any provision of this Agreement is in direct conflict with any state and/or
federal statutory provision, that provision which may conflict shall be deemed
inoperative and null and void insofar as it may conflict and shall be deemed
modified to conform to such statutory provision(s).
15.3. Should the Agency or RSI determine that the severed portions substantially alter
this Agreement so that the original intent and purpose of the Agreement no longer
exist, the Agency or RSI may, in its sole discretion, terminate this Agreement.
Within thirty (30) days of such termination, RSI shall issue a pro-rata refund to
the Agency. The pro-rata refund shall be calculated by multiplying the
annualized fee by the percentage of time remaining in the prepaid service period.
16.0. CAPTIONS AND HEADINGS
16.1. All captions and headings in this Agreement are for purposes of convenience only
and shall not affect the construction or interpretation of any of its provisions.
17.0. ENTIRE AGREEMENT
17.1. This Agreement and its Exhibits contain the entire understanding and agreement
between the parties respecting the subject matter hereof. This Agreement may not
be supplemented, modified, amended, released, or discharged except by an
instrument in writing signed by each party's duly authorized representative. This
Agreement may not be modified by acceptance of a purchase order with
conflicting terms; in such an event the terms of this Agreement shall control.
Reporting Systems, Inc.
Standard Agreement
8
11
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized representatives as of the day and year first above written.
City of Bremerton, Washington
By:
By:
(Authorized Signatory)
(Authorized Signatory)
Name
Name:
Title:
Title
Date:
Date:
Address for Notice:
Address for Notice:
City of Bremerton
817 Pacific Avenue
Bremerton, W A 98337
Reporting Systems, Inc.
851 Coho Way, Suite #307
Bellingham, W A 98225
APPROVED AS TO FORM:
Bremerton City Attorney
ATTEST:
Bremerton City Clerk
Reporting Systems, Inc.
Standard Agreement
9
l8
APPENDIX A
The costs associated with the Bremerton Fire Department accessing the Emergency
Reporting system, includes the following:
1.0. Records Management Account set up fee. Total cost is $1,000 and will be
invoiced upon signed contract and due within 30 days.
2.0. North Kitsap CAD link. Total cost is $5,000 with 50% due upon signed contract;
the balance is due upon completion of work; see CAD Interface Agreement for
more details.
3.0. Medical billing link to NW Systems Design. Total cost is $5,000, with 50% due
upon signed contract; 50% when work is complete.
4.0. Monthly Records Management Service The monthly cost is $297 or $891 per
quarter; the contract states Emergency Reporting is to bill the City of Bremerton
on a quarterly basis. The terms of this invoice is net 30 days. The monthly cost is
based on three (3) stations x $99 per month.
Summary of work costs and timeframes:
Records Management Account set up: The start date is set for January 1,2005;
Emergency Reporting will provide training and configuration of the account upon signed
contract.
CAD Link: The estimated active date for the CAD link is 60 days from signed contract;
however, Emergency Reporting is told the CAD provider (Intergraph) is to develop the
interface required to export data to Emergency Reporting. The CAD interface timeframe
is based on Intergraph's ability to make available the interface to Emergency Reporting;
the estimated active date is based on no delays from the CAD provider.
Medical billing link: The estimated active date for the medical billing link is 90 days
from the time contract is signed. The estimated active date is based on no delays from
the CAD provider and/or other parties involved.
Reporting Systems, Inc.
Standard Agreement
10
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Computer System Services Agreement -
CAD Interface for City of Bremerton, W A
This Computer System Services Agreement ("Agreement") is made and entered into this
day of , 2005 the ("Effective Date") by and between Reporting
Systems, Inc. ("RSI") a Washington State "s" corporation, doing business as Emergency
Reporting, located at 851 Coho Way, Suite #307, Bellingham, W A 98225, and the City
of Bremerton ("Agency"), a Washington municipality located at 817 Pacific Ave.,
Bremerton, W A 98337.
1.0 FUTURE SERVICES AND MODIFICATIONS
1.1 Upon execution of this Agreement, RSI shall begin computer system
services defined as an electronic interface as defined in Exhibit 1 -
Computer Aided Dispatch Interface Definition, to the Agency's Computer
Aided Dispatch (CAD) system. The services are estimated to take 60
business days and are contingent on the CAD company's ability and
cooperation to work with RSI. The cost of this interface shall not exceed
Five Thousand Dollars ($5,000).
2.0 AGENCY RESPONSIBILITIES
2.1 The Agency shall pay all valid invoices in a timely manner.
2.2 The Agency shall provide an Internet connection to the Emergency
Reporting system for a CAD interface. ISP charges, if necessary, are not
included in this Agreement. ISP failures are not the responsibility of RSI
and will not be considered" down-time" of the system.
2.3 Agency agrees to cooperate with RSI and the appropriate dispatch
vendors to design a CAD link and transmission method that is agreeable
to all parties.
3.0 FEES AND PAYMENTS
3.1 All amounts payable hereunder shall be payable in United States funds
without deductions for taxes or assessments.
3.2 The Agency shall be responsible for paying sales, use, excise, value-added,
or other tax or governmental charges impose on the use of the services
provided for herein.
Reporting Systems, Inc.
CAD Interface Agreement
1
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3.3 If Agency decides to cancel the project prior to completion all funds paid
will be considered to be payment in full and NO refund will be given.
3.4 This Agreement applies to RSI only. Other third parties (dispatch
vendors, etc.) may charge additional fees, and these fees are beyond the
control of RSI.
4.0 NON-ASSIGNABILITY
4.1 Neither Party may assign their rights or obligations under this Agreement
without the prior written consent of the other Party.
5.0 DEFAULT AND TERMINATION
5.1 This Agreement may be terminated by the non-defaulting party if any of
the following events of default occur: (a) if either party materially fails to
perform or comply with this Agreement or any provision hereof (b) if a
petition under any foreign state, or the United States bankruptcy act,
receivership statute or the like, as they now exist, or as they may be
amended, is filed by a party; or (c) if such a petition is filed by any third
party, or an application for a receiver is made by anyone and such petition
or application is not resolved favorably within ninety days.
5.2 In all cases, termination shall be effective thirty days after notification of
termination to the defaulting party if the defaults have not been cured
within such thirty-day period.
5.3 Any waiver by either party of any default or breach hereunder shall not
constitute a waiver of any provision of this Agreement or of any
subsequent default or breach of the same or different kind.
6.0 NOTICES
6.1 All notices, authorizations, and requests in connection with this
Agreement will be deemed given (a) five days after being deposited in the
u.s. mail postage prepaid, certified or registered, return receipt requested;
or (b) one day after being sent by overnight courier, charges prepaid, with
a confirming FAX.
7.0 GOVERNING LAW AND VENUE
7.1 The laws of the State of Washington will govern the validity, interpretation,
construction, and performance of this Agreement. Sole and exclusive jurisdiction
Reporting Systems, Inc.
CAD Interface Agreement
2
~(
for any action or proceeding arising out of or related to this Agreement will be in
Whatcom County Superior Court, or the United States District Court for the
Western District of Washington State.
8.0 SEVERABILITY
8.1 If a court of competent jurisdiction holds any part, term, or provision of this
Agreement to be illegal or invalid in whole or in part, the validity of the
remaining provisions shall not be affected, and the parties' rights and obligations
shall be construed and enforced as if the Agreement did not contain the particular
provision held to be invalid.
8.2 If any provision of this Agreement is in direct conflict with any state
and/ or federal statutory provision, that provision which may conflict
shall be deemed inoperative and null and void insofar as it may conflict
and shall be deemed modified to conform to such statutory provision(s).
8.3 Should the Agency or RSI determine that the severed portions substantially alter
this Agreement so that the original intent and purpose of the Agreement no longer
exist, the Agency or RSI may, in its sole discretion, terminate this Agreement.
Within thirty (30) days of such termination, RSI shall issue a pro-rata refund to
the Agency. The pro-rata refund is determined by multiplying the annualized fee
by the percentage of time remaining in the prepaid service period.
9.0 TECHNICAL SUPPORT AND UPGRADES
9.1 Support services shall be provided by RSI to AGENCY in order to maintain the
CAD interface. RSI will not, provide support to AGENCY in those instances
where AGENCY has not elected to purchase RSI fire / EMS records management
services. RSI will provide telephone and/or Internet based technical support. RSI
technical support shall be limited to inquiries regarding the CAD interface to the
records management system and shall NOT cover hardware or operating system
problems including, but not limited to, local area networks, firewall issues, or
modems.
9.2 Agency agrees to pay a yearly maintenance fee of 20% to cover the technical
labor costs directly associated with support, improvements, upgrades.
10.0 LIMIT A TION OF LIABILITY
RSI shall not be liable for any damages of any type, including but not limited to,
lost revenue, loss of expected benefits or other incidental or consequential
damages arising out of the use of inability to use the CAD interface, whether
arising out of contract, negligence, strict tort, or under any warranty, or otherwise,
even if Agency has been advised of the possibility of such damages or for any
other claim by any other party. RSI's liability for damages in no event shall
exceed the fees paid for the CAD interface.
Reporting Systems, Inc.
CAD Interface Agreement
J.J...
3
11.0 CAPTIONS AND HEADINGS
11.1 All captions and headings in this Agreement are for purposes of
convenience only and shall not affect the construction or interpretation of
any of its provisions.
12.0 ENTIRE AGREEMENT
12.1 This Agreement and its Exhibits contain the entire understanding and
agreement between the parties respecting the subject matter hereof. This
Agreement may not be supplemented, modified, amended, released, or
discharged except by an instrument in writing signed by each party's duly
authorized representative. This Agreement may not be modified by
acceptance of a purchase order with conflicting terms; in such an event the
terms of this Agreement shall control.
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized representatives as of the day and year first above written.
City of Bremerton, Washington
Reporting Systems, Inc.
By:
By:
Name
Name:
Title:
Title:
Date:
Date:
Address for Notice:
City of Bremerton
817 Pacific Ave.
Bremerton, W A 98337
Address for Notice:
Reporting Systems, Inc.
851 Coho Way, Suite #307
Bellingham, W A 98225
APPROVED AS TO FORM:
Bremerton City Attorney
Bremerton City Clerk
Reporting Systems, Inc.
CAD Interface Agreement
J.3
4
DATE SUBMITTED: January 11,2005
BILL # /)5" -' ()3/
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
~F
.........................u......a....Ba.........B................................a..u...
SUBJECT: Interlocal Agreement Between
the City of Port Orchard and the City of
Bremerton Relating to Marine Patrol
Services
Committee Meeting Date: January 26, 2005
COUNCIL MEETING Date: February 2, 2005
Department: Police
Presenter: Chief Forbes
Phone: 473-5224
SUMMARY: The City of Port Orchard and the City of Bremerton have geographical boundaries
either bordering on or encompassing navigable waters in Kitsap County. Port Orchard has established
a marine patrol service on the waters within Port Orchard's jurisdiction. The proposed agreement
establishes a resource for the Bremerton Police Department when responding to public safety issues
occurring on these navigable waters. Additionally, it confers municipal police authority to Port
Orchard to enforce State and Bremerton law within Bremerton waters.
A TT ACHMENTS: Proposed Interlocal Agreement Between the City of Port Orchard and the City
of Bremerton Relating to Marine Patrol Services
FISCAL IMPACTS (Include Budgeted Amount):
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
--.....
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
CONSENT AGENDA
I move to approve the proposed Interlocal Agreement Between the City of Port Orchard and the City
of Bremerton Relating to Marine Patrol Services and authorize the Mayor to execute the same with
substantially the same terms and conditions as presented.
COUNCn. ACTION: 0 Approve 0 Deny 0 Table
~lf
o Continue 0 No Action
INTERLOCAL AGREEMENT
BETWEEN THE CITY OF PORT ORCHARD
AND THE CITY OF BREMERTON
RELATING TO MARINE PATROL SERVICES
THIS IS AN AGREEMENT between the City of Port Orchard, a municipal
corporation of the State of Washington, hereinafter referred to as the "Port Orchard", and
the City of Bremerton, a municipal corporation of the State of Washington, hereinafter
referred to as "Bremerton".
WHEREAS, Port Orchard and Bremerton have geographical boundaries either
bordering on or encompassing navigable waters in Kitsap County and, thus have the
authority to police these waters; and
WHEREAS, Port Orchard has established and maintains a marine patrol service on
the waters within Port Orchard's jurisdiction which can also service the waters under the
authority of Bremerton;
NOW Therefore, Port Orchard and Bremerton hereby agree as follows:
1. Police Authority. Bremerton confers municipal police authority on Port
Orchard officers engaged pursuant to this Agreement to enforce State and Bremerton
ordinances within Bremerton waters for the purposes of carrying out this Agreement.
2. Assistance and Patrol. Through its Marine Patrol Unit, Port Orchard may
provide assistance to the Bremerton Police Department upon request, and may patrol
waters under the authority of Bremerton for the purposes of enforcing applicable laws and
ordinances, promoting boating safety, and preventing law or safety violations, including
responding to emergency complaints -in accordance with standard emergency dispatch
protocol.
3. No Duty to Patrol or Provide Assistance. Port Orchard Marine Patrol Unit
shall have the primary interest of patrolling its own waters, and shall not be liable for, or be
considered to be in breach of or default under this Agreement on account of any delay in or
failure to perform any obligation under this Agreement. This Agreement shall not create
any duty on the part of Port Orchard to patrol the waters of Bremerton or respond to
requests for assistance. Port Orchard has the absolute discretion to decline to provide any
requested assistance at any time without incurring any liability.
4. Independent Contractor. The parties to this Agreement agree that Port
Orchard is acting as an independent contractor and controls all marine patrol personnel,
including standards of performance and discipline. All persons rendering marine patrol
services under this Agreement shall be for all purposes employees of Port Orchard.
S. Indemnification.
a. In executing this agreement, Port Orchard does not assume liability or
responsibility for or in any way release Bremerton from any liability or responsibility,
which arises in whole or in part from the existence, validity or effect of Bremerton
- 1 -
;AS
ordinances, rules or regulations. If any such cause, claim, suit, action or administrative
proceeding is commenced, Bremerton shall defend the same at its sole expense and if
judgment is entered or damages are awarded against Bremerton, Port Orchard, or both,
Bremerton shall satisfy the same, including all chargeable costs and attorney's fees.
b. Port Orchard shall indemnify and hold harmless Bremerton and its officers,
agents, and employees, or any of them, from and against any and all claims, actions, suits
liability, loss, costs, expenses, and damages of any nature whatsoever, which are caused by
or result from a negligent act or omission of Port Orchard, its officers, agents, and
employees in performing services pursuant to this agreement. In the event that any suit
based upon such a claim, action, loss, or damage is brought against Bremerton or
Bremerton and Port Orchard, Port Orchard shall defend the same at its sole cost and
expense; and if final judgment be rendered against Bremerton and its officers, agents, and
employees or jointly against Bremerton and Port Orchard and their respective officers,
agents, and employees Port Orchard shall satisfy the same.
c. Bremerton shall indemnify and hold harmless Port Orchard and its officers,
agents, and employees, or any of them, from and against any and all claims, actions, suits,
liability, loss, costs, expenses, and damages of any nature whatsoever, which are caused by
or result from a negligent act or omission of Bremerton, its officers, agents, and employees
in performing services pursuant to this agreement. In the event that any suit based upon
such a claim, action, loss, or damage is brought against Port Orchard or Bremerton and
Port Orchard, Bremerton shall defend the same at its sole cost and expense; and if final
judgment be rendered against Port Orchard, and its officers, agents, and employees or
jointly against Port Orchard C and Bremerton and their respective officers, agents, and
employees Bremerton shall satisfy the same.
d. If a claim is made that both parties are responsible for all or a portion of
damages alleged to have been sustained as a result of acts or omissions of the parties
hereto, then the above referenced indemnity and hold harmless provisions shall apply only
to the extent of the proportion of liability attributable to the indemnifying party. If liability
is not or cannot be apportioned, then the parties shall be responsible for their own costs and
attorneys fees incurred in the matter and shall indemnify and hold the other party harmless
for one half of any amount awarded by the Court or other decision making body with
jurisdiction as a result of the alleged acts or omissions.
6. Contract Administration. The parties do not by this Agreement create any
separate legal or administrative entity. The Chief of Police of each party shall be
responsible for administering the terms of this Agreement. The parties do not intend to
jointly own any real or personal property as part of this undertaking.
7. Duration. This Agreement is effective upon authorization and signature by
both parties. The contract period shall continue until terminated by either ofthe parties.
8. Termination. Either party may terminate this Agreement at any time upon
thirty days (30 days) written notice to other party.
9. Amendment and Waiver. This Agreement may be amended by mutual
written agreement of the parties. No waiver by any party of any term or condition of this
- 2 -
~~
Agreement shall be deemed or construed waiver of any other term or condition, nor shall a
waiver of any breach be deemed to constitute a waiver of any subsequent breach whether
of the same or a different provision of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement.
Dated this _ day of
,2005
Dated this
day of
,2005
CITY OF BREMERTON
CITY OF PORT ORCHARD
By:
CARY BOZEMAN, Mayor
By:
KIM ABEL, Mayor
DEP ARTMENTAL APPROVAL:
DEPARTMENTAL APPROVAL:
Rob Forbes, Chief of Police
Alan Townsend, Chief of Police
APPROVED AS TO FORM:
APPROVED AS TO FORM:
Roger A. Lubovich, City Attorney
Loren D. Combs, City Attorney
ildocs/20766/agmt/patrol agreement
- 3 -
;).7
/ -.;?O-05
DATE SUBMITTED: November 17,2004-
BILL # 05 - 03;;1...
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
..........a..a........uDa.a....a.a...ma...m.............................as.a..........al
SUBJECT: Commercial Real Estate
Purchase and Sale Agreement and Right of
First Refusal and Option to Purchase
Agreement with WestSound Bank
Committee Meeting Date: .N6r/embcI 23,2004 1(;t0-o5
COUNCIL MEETING Date: Des8lRboc 1,2004 .;; - ;;? -OS
Department: Economic Development
Presenter: Gary Sexton
Phone: 473-5282
SUMMARY: WestSound Bank has made an offer to purchase the property located at 607 Pacific
Avenue (former U.S. Bank building). In addition to the proposed purchase and sale agreement for
this property is a first right of refusal and option to purchase agreement for the City to purchase the
current WestSound Bank building located at 190 Pacific Avenue.
ATTACHMENTS:
Proposed Commercial Real Estate Purchase and Sale Agreement
Proposed Right of First Refusal and Option to Purchase
FISCAL IMPACTS (Include Budgeted Amount): ,~\, ..o.\&. ~ \wc..o....~.""c.\..c.."d " ......\-0
-\.\"'e. o.c\.o ~\-...~ 'tOOS 'o"'~"'e.~ ~"" ~\...". ~\)\o\~c:. "&..~,~cr.'f',\,..\ ""t:"^"~~~~
":\)...d. ~"'...,c\..~ ~"'G_ ~\~ ~\" w,\\ ~ .,..,c.\~~ ,~w ~"---~ ~~...d.:-
APPROVALS: G..~ -\-"-. \>~_rt."\.~~-. o~ ~~\,. f~,,-e'l.~ Uolc..~ ......Q.~"'~~ ~ ~\.'"
\06~ Q~~~ ""_ ~"""- .f~":>h L c:.c.J~Q,~ ~o",,&.a. u- tho/as
DEP ARTMENT DIRECTOR: - ~
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
I CONSENT AGENDA 0 I
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION: I move to approve the Commercial Real Estate Purchase and Sale
Agreement and the Right of First Refusal and Option to Purchase with WestSound Bank and authorize
the Mayor to finalize and execute the agreements with substantially the same terms and conditions as I
presented. ~11 C-OI1 d, +/rnu -rt-~ 5ubse~ v-eK;f- C ~CI/It~C J <::t.ffv"ova.1 w;1l he. Y'~()'~
-f-o .ex~v'CLS.e. rft.. e 00"1; OIA- i?> fv{"c1u. se. D r- KI~ k;t o-fl F,'.rST I'< eJ;'u so.l.
COUNCIL ACTION: 0 Approve 0 Deny 0 Table
28
o Continue 0 No Action
COMMERCIAL REAL ESTATE
PURCHASE AND SALE AGREEMENT
This COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT
("Agreement") is made as ofthis day of ,2005, by and between CITY
OF BREMERTON, a Washington municipal corporation ("Seller"), and WESTSOUND BANK,
a Washington State Chartered Bank ("Buyer"), with reference to the following facts:
RECITALS
A. Seller is the owner of that certain parcel of improved real property located in
Kitsap County, Washington, the legal description of which is attached hereto as Exhibit A (the
"Land").
B. Seller desires to sell to Buyer, and Buyer desires to buy from Seller the
"Property," as defined below, upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement,
and the mutual covenants herein contained, Buyer and Seller hereby agree as follows:
1. Propertv Description. Seller shall sell and convey to Buyer, and Buyer shall
purchase and acquire from Seller, upon and subject to the tenus and conditions set forth in this
Agreement, the following (collectively, the "Property"): the Land, together with any buildings,
easements, appurtenances, rights, privileges, reversionary interests and improvements thereunto
belonging or appurtenant to the Land; all trees, shrubbery and plants now in or on the Land; all
right, title and interest of Seller in and to all alleys, strips or gores of land, if any, lying adjacent
to the Land; all rights of Seller to utilities serving the Property; all right, title and interest of
Seller in and to all rights-of-way, rights of ingress or egress or other interests in, on, or to, any
land, highway, street, road, or avenue, open or proposed, in, on, or across, in front of, abutting or
adjoining the Land.
1.1 Items of Taneible Personal ProDertv Included. Any of the following
tangible personal property owned by Seller and located in or on the Property is included in this
sale: all goods, chattels, goods to become fixtures, mobile goods, machinery, equipment, tools,
appliances, fixtures, furniture, furnishings, trade fixtures, window treatments, floor coverings,
drawings, plans, specifications, diagrams, soil reports, environmental reports, other architectural
or engineering work product and other tangible personal property used or useable in the
construction, renovation, ownership, management, marketing or operation of the Property or any
part thereof, and all replacements, additions or accessions thereto.
1.2 Items of Intaneible Personal Propertv Included. Seller's interest in any
of the following intangible personal property located in or on the Property is included in this
sale, if and to the extent assignable by Seller: all intangible personal property used or useable in
I
11
the construction, renovation, ownership, management, marketing or operation of the Property or
any part thereof, and all replacements, additions or accessions thereto, including without implied
limitation: (i) ali licenses, franchises, certifications, authorizations, approvals and permits issued
or approved by any governmental authority or other person, including without implied limitation,
certificates of occupancy, occupancy permits, building permits, sign permits, environmental
permits, elevator permits, machinery permits, business licenses, and ingress and egress permits;
(ii) all rent, deposits and other sums paid for the use or occupancy of the Property; (iii) all
insurance policies, proceeds, uncollected claims and all rights relating thereto that relate to
insurance policies covering the Property; (iv) all utility, security and other deposits and reserve
accounts made as security for the fulfillment of any obligation of the Seller or any affiliate of the
Seller in connection with the Property; and (v) all written or oral (A) service, maintenance,
operating, repair and other contract rights and commitments, (B) equipment leases, conditional
sale contracts and all rights and options of the Seller thereunder, including, without implied
limitation, rights to renew or extend the term or purchase the leased equipment, (C) guaranties
and warranties and other assurances of performance, (D) agreements with contractors,
materialmen, laborers, managers and other persons providing for the construction, renovation or
installation of all or portions of the Property, together with all payment and/or performance
bonds, insurance policies, certificates and other assurances relating thereto, (E) agreements with
architects and engineers for architectural and engineering design and supervision services, and
(F) agreements with all other contractors, engineers, architects, property managers, brokers,
professionals and consultants entered into by the Seller or any predecessor in title to the Seller.
1.3 Leases. Seller's interest in all agreements in the nature of leases,
subleases, rental contracts, licenses, permits, franchises, concessions and other agreements
relating to the use or occupancy of the Property (collectively the "Leases"); all rents, receipts,
and security and other deposits; all guaranties of the performance of the tenants thereunder; all
proceeds payable under any policy of insurance against loss of rents or business interruption; all
rights, claims, causes of action and demands that the Seller might now or hereafter have against
any tenant, subtenant, assignee or other occupant of the Property; and all records and pertinent
correspondence relating thereto.
2. Purchase Price. The purchase price to be paid by Buyer to Seller for the
Property is One Million One Hundred Fifty Thousand and No/1 00 Dollars ($1,150,000.00) (the
"Purchase Price").
3.
follows:
Payment of Purchase Price. The Purchase Price shall be payable to Seller, as
3.1 Earnest Monev Deposit. Within five (5) days following the execution
and delivery of this Agreement, Buyer shall open escrow with Stewart Title of Kitsap, LLC
(9633 Levin Road, Suite 101, Silverdale, Washington 98383) ("Escrow Agent"), by depositing
with Escrow Agent a copy of this Agreement and the amount of Fifty Thousand and No/100
Dollars ($50,000.00) (the "Earnest Money"). The Earnest Money Deposit shall be applied
towards payment of the Purchase Price. Interest on the Earnest Money Deposit, if any, shall be
for the benefit of whichever party is entitled to the Earnest Money Deposit at Closing or other
termination of this Agreement.
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3.2 Cash to Close. On the "Closing Date" (as defined below), Buyer shall
deposit with Escrow Agent the entire amount of the Purchase Price, less the Earnest Money
Deposit (and interest thereon).
4. Closin!!: Date. "Closing" shall occur when the statutory warranty deed to Buyer
(the "Deed") is recorded and the Purchase Price is delivered to the Escrow Agent for delivery to
Seller. The Closing shall be held at the offices of the Escrow Agent, on or before
(the "Closing Date").
5. Title and Survey Matters.
5.1 Title Commitment. Within three (3) days following execution of this
Agreement by both parties, Seller shall obtain at Seller's cost and deliver to Buyer a current form
of commitment for a 1970-B form ALTA owner's standard title insurance policy issued by
Stewart Title of Kitsap, LLC (the "Title Company") describing the Property, showing all matters
pertaining to the Property, listing Buyer as the prospective named insured and showing as the
policy amount the total Purchase Price. Seller shall pay the cost of a "standard coverage policy"
and Buyer shall pay the additional cost to secure an "extended coverage" policy, if such extended
coverage is so desired by Buyer. At the same time, the Title Company shall also deliver to
Buyer true, correct and legible copies of all documents (the "Title Documents") referred to in
such title commitment as conditions or exceptions to title to the Property (such title insurance
policy commitment and the Title Documents are collectively referred to herein as the "Title
Commitment").
5.2 Title Review. During a ten (10) day period commencing with the Buyer's
receipt of the Title Commitment Buyer shall review the Title Commitment and the Survey, if
applicable (as defined below) and, on or before the expiration of the 10-day period, shall notify
Seller what exceptions to title, if any, will be accepted by Buyer. Only those exceptions
approved by Buyer in writing shall constitute "Approved Exceptions." Seller shall remove all
exceptions that are not Approved Exceptions prior to the Closing Date unless, within five (5)
business days after Buyer gives notice of its Approved Exceptions, Seller notifies Buyer that
Seller will not be able to remove an exception (other than a monetary lien), in which case, within
five (5) business days of such notice from Seller, or prior to the Closing Date, whichever is
earlier, Buyer shall notify Seller either that Buyer (i) waives the objection to such exception and
accepts such title as Seller is willing to convey, or (ii) terminates this Agreement, in which event
Escrow Agent shall return the Earnest Money Note to Buyer and neither party shall have any
further rights or obligations under this Agreement.
Immediately upon discovering the need to amend or add any exception to the Title
Commitment, Title Company will notify Buyer and Seller. Within five (5) business days after
notice from Title Company together with a copy of such intervening lien or matter, Buyer shall
notify Seller in writing of any objections thereto (the "Amendment Objections"). Seller shall
satisfy the Amendment Objections prior to the Closing Date unless, within five (5) calendar days
after Buyer gives notice of its Amendment Objections or prior to the Closing Date, whichever is
earlier, Seller notifies Buyer that Seller will not be able to remove any of the Amendment
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Objections (other than a monetary lien), in which case, within five (5) business days after such
notice from Seller, or prior to the Closing Date, whichever is earlier, Buyer shall notify Seller
either that Buyer (i) waives the Amendment Objections and accepts such title as Seller is willing
to convey, or (ii) terminates this Agreement, in which event Escrow Agent shall return the
Earnest Money Deposit to Buyer and neither party shall have any further rights or obligations
under this Agreement.
The Approved Exceptions and any other exceptions that Buyer approves in writing shall
be referred to hereinafter as the "Permitted Exceptions."
5.2.1 Buyer acknowledges and agrees that it has read and is aware of the
restrictions on use of the property as set forth in the Special Warranty Deed to the City of
Bremerton recording no. 200406300659 and hereby agrees to indemnify and hold the Seller, City
ofBremerton, harmless for any and all claims arising out of any violation of said covenant if
such covenant remains an encumbrance on the property following Closing. This section, 5.2.1
shall survive closing of the transaction contemplated in this agreement.
5.3 Title Policy. Buyer shall receive at Closing, an Owner's Standard
Coverage Title Insurance Policy (ALTA Form 1970-B) issued by the Title Company. The Title
Policy shall be issued in the amount of the total Purchase Price and shall insure fee simple,
indefeasible title to the Property in Buyer, subject only to the Permitted Exceptions. The Title
Policy shall contain extended coverage and/or such endorsements as Buyer may reasonably
require, at Buyer's expense. Buyer's obligation to close this transaction shall be contingent on
Buyer's receipt of such Title Policy.
5.4 Survey. If Buyer desires extended coverage as part of the Title Policy
then Buyer shall at its sole expense, obtail.l a current ALTAJASCM survey (the "Survey") of the
Property prepared by a licensed or registered surveyor, which survey shall be satisfactory to
Buyer and to the Title Company. Buyer will provide a copy of such Survey to Seller.
6. Conditions to Buyer's Oblie:ations.
6.1 Satisfaction of Conditions. Buyer's obligation to purchase the Property
shall be subject to and contingent upon:' (i) the Buyer's satisfaction with the Title Commitment,
as provided in Section 5.2, above; (ii) the execution of the Right of First Refusal and Option to
Purchase Agreement, as described in Section 6.2, below; and (iii) the Buyer's satisfaction with
the conditions stated in Section 6.3, below.
6.2 Rie:ht of First Refusal and Ootion to Purchase Ae:reement. Upon
mutual execution of this Agreement, Seller and Buyer shall sign a Right of First Refusal and
Option to Purchase Agreement pertaining to that certain real property commonly known as 190
Pacific Avenue, Bremerton, Washington 98337. A form of the Right of First Refusal and Option
to Purchase Agreement is attached hereto as Exhibit B. Notwithstanding the execution of the
Right of First Refusal and Option to Purchase Agreement, the respective rights and duties of
Seller and Buyer thereunder shall terminate in the event the transaction contemplated under this
Agreement fails to close for any reason.
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6.3 Additional Closine Conditions. Buyer's obligation to purchase the
Property shall be subject to the following conditions that must be satisfied by Seller as of Closing
unless waived by Buyer at or prior to Closing:
(a) All representations and warranties of Seller contained herein shall
be true, accurate and complete at the time ofthe Closing as if made again at such time;
(b) Seller shall have performed all obligations to be performed by it
hereunder on or before Closing (or, if earlier, on or before the date set forth in this Agreement for
such performance);
(c) At Closing, Seller shall deliver title to the Property in the condition
required by Section 5 of this Agreement; and
(d) At Closing, the physical condition of the Property shall be the
same as on the date hereof, ordinary wear and tear excepted.
If the conditions set forth in this Section 6.2 are not satisfied as of Closing and Buyer
does not waive same, the Earnest Money Deposit and all interest thereon, if any, shall be
returned by Escrow Agent to Buyer, and thereafter neither Buyer nor Seller shall have any
further liability to the other under this Agreement.
7. Condition of Prooertv. Buyer, upon Closing, accepts the Property and
improvements thereon in "as is" condition, subject to the express representations and warranties
made in this Agreement. Neither Seller or any agent representative of Seller makes any
representation or warranty of any kind, express or implied, either oral or written with respect to
the Property, other than the express representations and warranties made by Seller in Sections 8
and 17 of this Agreement and in any documents executed and delivered by Seller to Buyer at
Closing.
8. Seller's Reoresentations. Seller hereby makes the following representations and
warranties, which representations and warranties shall be deemed made by Seller to Buyer also
as of the Closing Date:
8.1 Parties in Possession. There are no parties or trespassers in possession or
that have a right to possession ofthe Property, except as otherwise disclosed to Buyer within five
(5) days of mutual execution of this Agreement and Buyer's acceptance thereof.
8.2 Condemnation or Assessment: Access. There is no pending
condemnation or similar proceeding affecting the Property, nor, to Seller's knowledge, is there
any such proceeding or assessment contemplated by any governmental authority. The Property
has full and free access from public highways, streets or roads, and there is no pending or
threatened governmental proceeding that would impair or curtail such access.
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8.3 Compliance with Law. To Seller's actual knowledge, the Property
complies with, and the Seller has complied with, all applicable zoning, land use, environmental,
flood control, planning, building, fire, health, traffic, disabled persons and other laws,
ordinances, regulations, statutes and rules relating to the Property, and every part thereof. Seller
has not received nor is aware of any notification from any governmental authority requiring any
work to be done on the Property or advising of any condition (including, without limitation,
hazardous substances or wastes) that would render the Property unusable or affect the usability
of the Property or any part thereof as a branch office for Buyer's operations.
8.4 Option to Acauire Premises. No person or entity other than Buyer has
any right to acquire any interest in the Property or any part thereof, and Seller has not sold or
contracted to sell the Property or any portion thereof or interest therein other than as set forth
herein.
8.5 Forehm Person. Seller is not a foreign person and is a "United States
Person" as such term is defined in Section 7701(a) (30) of the Internal Revenue Code of 1986, as
amended (the "Code") and shall deliver to Buyer prior to the Closing an affidavit evidencing
such fact and such other documents as may be required under the Code.
8.6 Sole Lel!al Owner. Seller is the sole legal fee owner of the Property, and
is not holding fee title as a nominee for any other person or entity.
8.7 Mechanics' Liens. No labor, material or services have been furnished in,
on or about the Property or any part thereof as a result of which any mechanics', laborer's or
materialmen's liens or claims might arise.
8.8 Defaults. To the best of Seller's knowledge, Seller is not in default and
there has occurred no uncured event that, with notice, the passage of time or both would be a
default, under any contract, agreement, lease, encumbrance, or instrument pertaining to the
Property.
8.9 Litil!ation. There is no litigation or to the best of Seller's knowledge
threatened litigation that could now or in the future in any way constitute a lien, claim, or
obligation of any kind on the Property, affect the use, ownership or operation of the Property or
otherwise adversely affect the Property. For purposes of this Section 8.9, litigation includes
lawsuits, actions, administrative proceedings, governmental investigations and all other
proceedings before any tribunal having jurisdiction over the Property.
8.10 Hazardous Substances. To the best of Seller's knowledge, the Property
is not in violation of any law, ordinance, rule or regulation relating to the environmental
conditions thereon. Moreover, Seller represents, warrants and agrees that Seller has not used,
generated, manufactured, produced, stored, released, discharged or disposed of on, under or
about the Property (or off-site of the Property that might affect the Property) or transported from
the Property, any Hazardous Substance (as defined below) in violation of Environmental Laws
(as defmed below), nor to the best of Seller's knowledge has any Hazardous Substance been
used, generated, manufactured, produced, stored, released, discharged or disposed of on, under
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or about the Property or off-site of the Property in violation of Environmental Laws that might
affect the Property. To the best of Seller's knowledge no underground storage tanks are
currently located on the Property. The term "Hazardous Substance" means any hazardous or
toxic substance, material or waste, pollutants or contaminants, as defined, listed or regulated now
or in the future by any federal, state or local law, ordinance, code, regulation, rule, order or
decree regulating, relating to or imposing liability or standards of conduct concerning, any
environmental conditions, health or industrial hygiene (collectively, "Environmental Laws"),
including without limitation, (i) chlorinated solvents, (ii) petroleum products or by-products, (iii)
asbestos, (iv) polychlorinated biphenyls, and (v) anything that would be a hazardous waste,
material or substance, toxic substance or pollutant, as defined under the federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42 V.S.C. 9
9601 et seq.; Hazardous Materials Transportation Act, 49 V.S.C. S 1801 et seq.; Resource
Conservation and Recovery Act, 42 V.S.C. 9 6901 et seq., the Clean Water Act, 42 V.S.C. 9
1251 et seq., the Washington Environmental Policy Act, RCW Ch. 43.21, the Washington Water
Pollution Control Act, RCW 90.48.010 et seq., the Washington Hazardous Waste Management
Act, RCW Ch. 70.105, the Washington Model Toxics Control Act, RCW Ch. 70.105D, and the
regulations promulgated thereunder.
8.11 Seller's Knowlede:e. Wherever within this Agreement it is stated that
Seller's representation or warranty is to Seller's knowledge or actual knowledge, such
knowledge does not include any inquiry or investigation by Seller.
9. Representations of Buver. Buyer represents and warrants to Seller as follows:
9.1 Authority. Buyer duly organized and validly existing under the laws of
the state of Washington, with the power and authority to own its properties and conduct its
business as now being conducted, and the purchase of the Property as provided herein has been
fully authorized by Buyer. .
9.2 No Lee:al Bar. To the best of Buyer's knowledge, Buyer is not prohibited
from consummating the transactions contemplated in this Agreement by any law, regulation,
agreement, instrument, restriction, order or judgment.
10. Covenants of Seller. Seller covenants and agrees as follows:
10.1 Performance of Oblie:ations. From the date of this Agreement to the
Closing Date, and except for those obligations assumed by Buyer, Seller will perform all of its
monetary and non-monetary obligations under all indebtedness (whether for borrowed money or
otherwise) and the liens securing same pertaining to the Property or any portion thereof, if any.
10.2 Liens. From the date of this Agreement to the Closing Date, Seller will
not allow any lien to attach to the Property or any part thereof except the lien for ad valorem
taxes that are not due and payable and any liens that result from the activities of Buyer in
connection with the Property, nor will Seller grant, create, or voluntarily allow the creating of, or
amend, extend, modify or change, any easement, right-of-way, encumbrance, restriction,
covenant, lease, license, option or other right affecting the Property or any part thereof without
Buyer's written consent first having been obtained.
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10.3 Notification. From the date of this Agreement to the Closing Date, Seller
shall notify Buyer of each material event of which Seller becomes aware affecting the Property
or any part thereof promptly upon learning of the occurrence of such event.
10.4 Encumbrances. Seller shall not enter into any leases (other than leases
currently in effect and previously disclosed in writing to Buyer), trust deeds, mortgages,
restrictions, encumbrances, liens, licenses or other instruments or agreements affecting the
Property without the prior written consent of the Buyer from and after the date of this
Agreement.
10.5 Environmental Indemnification. Seller shall protect, indemnify, defend
and hold harmless Buyer and its directors, officers, employees, agents, parents, subsidiaries,
successors and assigns from any loss, damage, cost expense or liability (including reasonable
attorneys' fees and costs) directly or indirectly arising out of or attributable to the Seller City of
Bremerton's use, generation, manufacture, production, storage, release, threatened release,
discharge, disposal or presence of a Hazardous Substance on, under or about the Property (or off-
site on property owned or operated by Seller that affected the Property) or a breach of any
representation, warranty, covenant or agreement contained in Section 8.10 of this Agreement
including, without limitation, the costs of any required or necessary repairs, cleanup or
detoxification of the Property and the preparation and implementation of any closure, remedial or
other required plans. The foregoing indemnification shall survive Closing.
10.6 Payment of Impositions. No assessment, special assessment or tax
affecting the Property shall be permitted to become delinquent or go to bond prior to Closing
without the prior written consent of Buyer; provided, however, Seller may in good faith, at its
expense and in its own name and behalf, diligently contest by appropriate proceedings any
impositions so long as the same are instituted prior to delinquency and Seller shall post such
security in such manner, form and amount as Buyer may request to ensure that the same will be
paid in full prior to any enforcement against Buyer, or the Property, or any part thereof.
10.7 Assumption of Liabilities. Except for those obligations expressly
assumed by Buyer in writing, Buyer, by virtue of the purchase of the Property, will not be
required to satisfy any contractual obligation of Seller arising prior to the Closing Date. Other
than such obligations so expressly assumed by Buyer or any liens or other obligations with
respect to the Property that result from any action or activities by or on behalf of Buyer after the
Closing Date, Seller, after the Closing Date, will pay and discharge any and all liabilities of each
and every kind arising out of or by virtue of the possession, ownership or use of the Property
prior to the Closing Date, and shall indemnify, defend and hold Buyer harmless therefrom.
10.8 Security Deposits. At Closing, Seller shall assign and transfer to Buyer
the security deposits, if any, referred to in leases that pertain to the Property as of the mutual
execution ofthis Agreement and which are expressly assumed by Buyer.
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11. Closine and Escrow.
11.1 Time and Place of Closine. Provided that all the contingencies set forth
in this Agreement have been previously fulfilled, the Closing shall take place at the place and
time determined as set forth in Section 4 of this Agreement.
11.2 Documents to be Delivered bv Seller. For and in consideration of, and
as a condition precedent to, the payment to Seller of any of the Purchase Price, Seller shall obtain
and deliver to Buyer at Closing the following documents (all of which shall be duly executed and
acknowledged where required):
11.2.1 Warranty Deed. The Deed in recordable form and otherwise in
form and substance reasonably acceptable to Buyer containing the legal description of the Land
in such form as will convey to Buyer a good, marketable and indefeasible title in fee simple
absolute to the Property, free and clear of all liens, encumbrances, conditions, easements,
assignments, and restrictions, except for the Permitted Exceptions.
11.2.2 Title Documents. Such other documents, including, without
limitation, lien waivers, indemnity bonds, indemnification agreements, certificates of authority,
and certificates of good standing as shall be reasonably required by the Title Company as a
condition to its insuring Buyer's good and marketable fee simple title to the Property free of any
exceptions, other than the Permitted Exceptions.
11.2.3 Title Policy. As soon as practicable after Closing, the Title Policy.
11.2.4 Nonforeien Mfidavit. An affidavit by Seller in a form
satisfactory to Buyer and Escrow Agent confirming that Seller is not a foreign person within the
meaning of26 U.S.C g 1445 and the regulations issued thereunder.
11.2.5 Bill of Sale. A warranty bill of sale in substantially the form
attached hereto as Exhibit C conveying all of the Seller's right, title and interest in any and all
tangible personal property included in the sale of the Property.
11.2.6 Assie:nment and Assumption Aereement. An assignment and
assumption agreement assigning to Buyer all of Seller's right, title and interest in and duties
under the Leases, contracts and other intangible personal property included in the sale of the
Property and the Buyer's assumption of those Seller obligations thereunder expressly assumed
by Buyer.
11.2.7 Tenant Estoppel Certificate. An estoppel certificate executed by
each party who is a tenant of the Property as of date this Agreement is signed by Seller, if any.
Such certificate that confirm the monthly rental paid by such party, the amount of any security
deposit paid and whether any party to such tenancy is in default of its respective obligations
thereunder and the nature of such default, if any.
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11.2.8 Additional Documents. Such additional documents as might
reasonably be required by Buyer to consummate the sale of the Property to Buyer.
11.3 Delivery bv Buver. Buyer shall deliver to Seller at Closing the Purchase
Price (after credit for the Earnest Money Deposit and all interest and any other credits pursuant
hereto).
11.4 Payment of Costs.
11.4.1 Payment of Respective Costs. At Closing, Seller and Buyer shall
pay their own respective costs incurred with respect to the consummation of the purchase and
sale of the Property including, without limitation, attorneys' fees.
11.4.2 Payment bv Seller. Notwithstanding Section 11.4.1 to the
contrary, Seller shall pay: (a) the premium for the owner's standard coverage portion of the Title
Policy to be issued by Title Company to Buyer; (b) the documentary or other transfer taxes; (c)
the real estate excise tax, if any; and (d) one-half(~) ofthe escrow fee.
11.4.3 Payment bv Buver. Notwithstanding Section 11.4.1 to the
contrary, Buyer shall pay: (a) any additional premiums for title insurance endorsements or
extended coverage; (b) the cost of the survey, if any; ( c) all costs of financing, including lender's
title insurance premium, if any; (d) the cost of recording the Deed and any deed of trust or
mortgage granted by Buyer to a lender; and ( e) one-half (~) of the escrow fee.
11.4.4 Prorated Costs. All real property taxes and assessments, surface
water management charges and similar fees or charges, and other expenses and revenues of the
Property shall be prorated as of the Closi~g Date. Seller shall pay at Closing any Real Property
Taxes due or to become due with respect to the Property for the period up to the Closing Date.
All personal property taxes shall be prorated based upon the year in which they are payable.
11.4.5 Utilities. Buyer and Seller DO NOT WAIVE the services of the
Escrow Agent in disbursing closing funds to satisfy unpaid utility charges affecting the Property
pursuant to RCW 60.80. Within five (5) days after execution of this Agreement by both parties,
Seller shall deliver to Escrow Agent the names, addresses and other information regarding all
utility providers providing services to the Property.
11.5 Monetary Liens. Seller shall payor cause to be satisfied at or prior to
Closing all monetary liens on or with respect to all or any portion of the Property, including, but
not limited to, mortgages, deeds of trust, security agreements, assignments of leases, rents and/or
easements, judgment liens, tax liens (other than those for taxes not yet due and payable) and
financing statements.
12. Possession. Seller shall deliver possession of the Property to Buyer on or before
midnight at the end of the Closing Date, free from all parties claiming rights to possession or
having claims against the Property other than as tenants in possession or pursuant to contractual
obligations approved or to be assumed by Buyer.
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13. Condemnation. In the event of any commenced, to be commenced or
consummated proceedings in eminent domain or condemnation (collectively, "Condemnation")
respecting the Property or any portion thereof, Buyer may elect, by written notice to Seller, to
terminate this Agreement and the escrow created pursuant hereto and be relieved of its obligation
to purchase the Property. If Buyer makes such election, the Earnest Money Deposit (including
all interest earned thereon) and other sums delivered to Escrow Agent or Seller by Buyer
promptly shall be returned to Buyer and neither Buyer nor Seller shall have any further liability
to the other and shall be relieved of all obligations hereunder. If Buyer fails to make such
election prior to the Closing Date, this Agreement shall continue in effect, there shall be no
reduction in the Purchase Price, and Seller shall, prior to the Closing Date, assign to Buyer, by an
assignment agreement in form and substance satisfactory to Buyer, its entire right, title and
interest in and to any condemnation award or settlement made or to be made in connection with
such Condemnation proceeding. Buyer shall have the right at all times to participate in all
negotiations and dealings with the condemning authority and approve or disapprove any
proposed settlement in respect to such matter. Seller shall forthwith notify Buyer in writing of
any such Condemnation respecting the Property.
14. Casualty. If any fire, earthquake, windstorm or other casualty occurs and
materially affects all or any portion of the Property on or after the date of this Agreement and
prior to the Closing, Buyer may elect, by written notice to Seller, to terminate this Agreement
and the escrow created pursuant hereto and be relieved of its obligation to purchase the Property.
If Buyer makes such election, the Earnest Money Deposit (including all interest earned thereon)
and other sums delivered to Escrow Agent or Seller by Buyer promptly shall be returned to
Buyer and neither Buyer nor Seller shall have any further liability to the other and shall be
relieved of all obligations hereunder. If Buyer fails to make such election prior to the Closing
Date, this Agreement shall continue in eff~ct, the Purchase Price shall be reduced by the amount
of loss or damage occasioned by such casualty not covered by insurance, and Seller shall, at or
prior to the Closing Date, assign to Buyer, by an assignment agreement in form and substance
satisfactory to Buyer, its entire right, title and interest in and to all insurance claims and proceeds
to which Seller may be entitled in connection with such casualty. Buyer shall have the right at
all times to participate in all negotiations and other dealings with the insurance carrier providing
such coverage and to approve or disapprove any proposed settlement in respect to such matter.
Seller shall forthwith notify Buyer in writing of any such casualty respecting the Property.
15. Notices. Unless applicable law requires a different method of giving notice, any
and all notices, demands or other communications required or desired to be given hereunder by
any party (collectively, "notices") shall be in writing and shall be validly given or made to
another party if delivered either personally, or by Federal Express or other overnight delivery
service of recognized standing, or by United States Mail, certified, registered, or express mail
with postage prepaid. If such notice is personally delivered, it shall be conclusively deemed
given at the time of such delivery. If such notice is delivered by Federal Express or other
overnight delivery service of recognized standing, it shall be deemed given one (1) business day
after the deposit thereof with such delivery service. If such notice is mailed as provided herein,
such shall be deemed given three (3) business days after the deposit thereof in the United States
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Mail. Each such notice shall be deemed given only if properly addressed to the party to whom
such notice is to be given as follows:
To Seller:
City of Bremerton
c/o The Office of the Mayor
345 - 6th Street, Suite 600
Bremerton, W A 98337
To Buyer:
David K. Johnson
Westsound Bank
190 Pacific Avenue
Bremerton, Washington 98337
Any party hereto may change its address for the purpose of receiving notices as herein provided
by a written notice given in the manner aforesaid to the other party hereto.
16. Survival of Representations and Warranties. All representations, warranties,
covenants and agreements of the parties contained in this Agreement, or in any instrument or
other writing provided for herein, shall survive the Closing.
17. Finders' or Brokers' Fees. Each of the parties represents and warrants that it
has not dealt with any broker or finder to which a commission or other fee is due in connection
with any of the transactions contemplated by this Agreement. The parties hereto each agree to
indemnify, defend and hold hannless the other party against any loss, liability, damage, cost,
claim or expense, including interest, penalties and reasonable attorneys' fees, that the other party
shall incur or suffer by reason of a breach by the first party of the representation and warranty set
forth above.
18. Event of Default. In the event of a default under this Agreement by Seller
(including a breach of any representation, warranty or covenant set forth herein), Buyer shall be
entitled, in addition to all other remedies, to seek monetary damages and specific performance of
Seller's obligations hereunder. In the event of a breach or default by Buyer without any default
by Seller or failure of any condition to Buyer's obligations hereunder, Seller's sole and exclusive
remedy shall be the retention of the Earnest Money Deposit held by Escrow Agent, together with
all interest earned thereon, and all amounts previously paid to it hereunder, as liquidated
damages and not as a forfeiture or penalty. The parties acknowledge that in the event of such
default by Buyer, Seller will have incurred substantial but unascertainable damages and that
therefore the provision herein for liquidated damages is a valid one.
19. Reports. Within five (5) calendar days after Seller's execution of this Agreement
and its delivery to Buyer, Seller shall deliver to Buyer copies, if any, of all available plans and
specifications relating to the Property, all surveys, topographical and plat maps, results of soil
tests, engineering studies, and any other test results or reports, and other data reasonably
requested by Buyer and in Seller's possession or under Seller's control.
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20. Miscellaneous.
20.1 Applicable Law. This Agreement shall in all respects be governed by the
laws of the state of Washington.
20.2 Further Assurances. Each of the parties shall execute and deliver any
and all additional papers, documents and other assurances, and shall do any and all acts and
things reasonably necessary in connection with the performance of its obligations hereunder, to
carry out the intent of the parties hereto.
20.3 Modification or Amendment. No amendment, change or modification of
this Agreement shall be valid, unless in writing and signed by all ofthe parties hereto.
20.4 Successors and Assie:ns. Buyer may assign its rights and obligations
under this Agreement. All of the terms and provisions contained herein shall inure to the benefit
of and shall be binding upon the parties hereto and their respective heirs, legal representatives,
successors and assigns.
20.5 Entire Ae:reement. This Agreement constitutes the entire understanding
and agreement of the parties with respect to its subject matter and any and all prior agreements,
understandings or representations with respect to its subject matter are hereby canceled in their
entirety and are of no further force or effect.
20.6 Attornevs' Fees. Should either party bring legal action to enforce or
interpret this Agreement, each party shall be responsible for its attorneys' fees and costs incurred
in connection with such action, whether in mediation or arbitration, at trial or on appeal, or in
any bankruptcy proceeding.
20.7 Headine:s. The captions and section headings used in this Agreement are
inserted for convenience of reference only and are not intended to define, limit or affect the
interpretation or construction of any term or provision hereof.
20.8 Confidentiality. All information furnished to Buyer relating to the
Property (other than matters of public record), including without limitation, any information
obtained through Buyer's inspection of the Property and any and all documents provided to
Buyer, will be treated by Buyer as confidential, will not be disclosed by Buyer to anyone (except
Buyer's consultants and sources of financing having a need to know), and will be returned by
Buyer to Seller unless Closing occurs in accordance with this Agreement.
20.9 Acceptance. Time is of the essence. Seller has until 5 :00 p.m.
, 2005, to accept this offer. Acceptance is not effective until a signed
copy hereof is received by Buyer. Buyer's receipt of a signed facsimile of this Agreement by
Seller will be treated as Buyer's receipt of a signed original Agreement by Seller. If this offer is
not accepted by Seller within the prescribed period of time, it shall lapse.
13
to
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20.10 Council Approval. This Agreement is conditioned upon and subject to
approval by the <:ity Council ofthe City of Bremerton.
20.11 Exhibits. The following exhibits are attached hereto and incorporated
herein:
Exhibit A -
Exhibit B -
Legal Description
A copy of proposed Right of First Refusal and Option to
Purchase Agreement
A copy of proposed Bill of Sale
Exhibit C -
SELLER:
CITY OF BREMERTON,
a Washington municipal corporation
By:
(Print Name)
(Print Title)
Its:
BUYER:
WESTSOUND BANK, a Washington State Chartered Bank
By:
David K. Johnson, CEO/President
14
If:l-
EXHIBIT A
(Legal Description)
THAT PORTION OF GOVERNMENT LOT 2, SECTION 13, TOWNSHIP 24 NORTH,
RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS:
BEGINNING AT NORTHEAST CORNER OF BLOCK 16, TOWN OF BREMERTON,
ACCORDING TO THE PLAT RECORDED IN VOLUME 2 OF PLATS, PAGE 30,
RECORDS OF KITSAP COUNTY, WASHINGTON; THENCE NORTH 60 FEET TO THE
SOUTHEAST CORNER OF INTERSECTION OF P ACIFIC AVENUE AND 6TH STREET
AND THE TRUE POINT OF BEGINNING; THENCE NORTH ALONG THE WEST
MARGIN OF P ACIFIC AVENUE 200 FEET; THENCE WEST ALONG THE SOUTH
MARGIN OF 7TH STREET A DISTANCE OF 250 FEET; THENCE SOUTH 97 FEET;
THENCE WEST 20 FEET; THENCE SOUTH 103 FEET TO THE NORTH MARGIN OF 6TH
STREET; THENCE EAST 270 FEET TO THE TRUE POINT OF BEGINNING.
TAX PARCEL ACCOUNT NO. - 132401-3-189-2009
A-I
4.3
EXHIBIT B
Attach copy of Right of First Refusal and Option to Purchase Agreement
Lflf
EXHIBIT C
(Bill of Sale)
Glen P. Garrison, Esq.
Keller Rohrback L.L.P.
1201 Third Avenue
Suite 3200
Seattle, Washington 98101
(Space above this line for recorder's use only)
DOCUMENT TITLE: Bill of Sale
REFERENCE NUMBER(S) OF N/A
RELATED DOCUMENTS:
Additional reference numbers on page(s) N/A of document.
GRANTOR: City of Bremerton, a Washington municipal
corporation
GRANTEE: Westsound Bank, a Washington State Chartered
Bank
ABBREVIATED LEGAL Govt. Lot 2, S13 T24N RIE
DESCRIPTION:
Additional legal on page ~ of document.
ASSESSOR'S TAX PARCEL 132401-3-189-2009
NO(S).
BILL OF SALE
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, CITY OF BREMERTON, a Washington municipal corporation ("Grantor" or
"Seller"), does hereby sell, convey, set over, assign, transfer and warrant to WESTSOUND
BANK, a Washington State Chartered Bank ("Buyer"), all of its right, title and interest in and to
the personal property described in Exhibit A attached hereto and by this reference incorporated
herein (the "Personal Property") located on the real property legally described on Exhibit B
attached hereto and incorporated herein. This Bill of Sale is delivered pursuant to the
Commercial Real Estate Purchase and Sale Agreement dated as of
2005, incorporated by reference herein.
Grantor hereby warrants to Buyer that Grantor is the sole owner of all the Personal
Property above conveyed; that is has full power to convey the same; and that it will defend the
title of the Buyer against any and all persons lawfully making claim thereto.
't~
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
,200_
GRANTOR/SELLER:
CITY OF BREMERTON, A WASHINGTON
MUNICIPAL CORPORATON
By:
(Print Name)
Its:
(Print Title)
STATE OF WASHINGTON
)
) ss:
)
COUNTY OF KITSAP
I certify that I know or have satisfactory evidence that is the
person who appeared before me on , 2005, and said person
acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to
execute this instrument and acknowledged it as the of the CITYOF
BREMERTON, a Washington municipal corporation, to be the free and voluntary act of such
party for the uses and purposes mentioned in this instrument.
Print Name:
NOTARY PUBLIC in and for the State of
Washington. residing at
My Appointment expires:
Lfy,
EXHIBIT A to Bill of Sale
(Personal Property)
Attach list of Items of Personal Property located on the Real Property (Exhibit B)
Safe Deposit Boxes
Chest Safe
'17
EXHIBIT B to Bill of Sale
(Legal Description)
THAT PORTON OF GOVERNMENT LOT 2, SECTOIN 13, TOWNSHIP 24 NORTH,
RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS:
BEGINNING AT NORTHEAST CORNER OF BLOCK 16, TOWN OF BREMERTON,
ACCORDING TO THE PLAT RECORDED IN VOLUME 2 OF PLATS, PAGE 30,
RECORDS OF KITSAP COUNTY, WASHINGTON; THENCE NORTH 60 FEET TO THE
SOUTHEAST CORNER OF INTERSECTION OF PACIFIC AVENUE AND 6TH STREET
AND THE TRUE POINT OF BEGINNING; THENCE NORTH ALONG THE WEST
MARGIN OF P ACIFIC AVENUE 200 FEET; THENCE WEST ALONG THE SOUTH
MARGIN OF 7TH STREET A DISTANCE OF 250 FEET; THENCE SOUTH 97 FEET;
THENCE WEST 20 FEET; THENCE SOUTH 103 FEET TO THE NORTH MARGIN OF 6TH
STREET; THENCE EAST 270 FEET TO THE TRUE POINT OF BEGINNING.
TAX PARCEL ACCOUNT NO. - 132401-3-189-2009
R:\LEGAL\Files\Current Active Files\West Sound Bank - Real Estate\2005.01.l9 Revised PSA.doc
LtB
RIGHT OF FIRST REFUSAL AND
OPTION TO PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of this day of February, 2005,
by and between WESTSOUND BANK, a Washington State Chartered Bank (the "Bank"), and
CITY OF BREMERTON, a Washington municipal corporation (the "City"), with reference to
the following facts:
RECITALS
A. On ,2005 the City, as the "Seller," and the Bank, as the
"Buyer," entered into that certain Commercial Real Estate Purchase and Sale Agreement (the
"Purchase and Sale Agreement").
B. A copy of this Agreement was attached as Exhibit B to the Purchase and Sale
Agreement.
C. The parties desire to enter into an option to purchase and right of first refusal
agreement of the improved real property commonly known as 190 Pacific Avenue, Bremerton,
Washington 98337 (the "Property"). A legal description of the Property is attached hereto as
Exhibit A and incorporated herein by reference.
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement and
the mutual covenants herein contained, and pursuant to the terms of the Purchase and Sale
Agreement, the Bank and the City hereby agree as follows:
1. Option to Purchase Property. If the sale and purchase contemplated under the
Purchase and Sale Agreement closes, then the Bank grants to the City an option to purchase the
Property in accordance with this Section 1. If the sale and purchase contemplated under the
Purchase and Sale Agreement fails to close then neither party hereto shall have any rights or
obligations.
1.1 Removal of Use Restrictions. When the City acquired title to the
property described in the Purchase and Sale Agreement pursuant to a Special Warranty Deed
from U.S. Bank National Association ("U.S. Bank"), there were certain use restrictions imposed
("Use Restrictions"). If the City and/or the Bank is/are able to remove with the consent of U.S.
Bank, or its successor, the Use Restrictions from the property described in the Purchase and Sale
Agreement within one hundred eighty (180) days from mutual execution of this Agreement then
the City shall have the right to purchase the Property for a single cash payment of One Million
and No/OO Dollars ($1,000,000.00). If the City and/or the Bank is/are able to remove with the
consent of U.S. Bank, or its successor, the Use Restrictions from the Property described in the
Purchase and Sale Agreement at any time after one hundred eighty (180) days from mutual
execution of this Agreement but on or before the second (2nd) anniversary of mutual execution of
- 1 -
tot"
this Agreement then the City shall have the right to purchase the Property for a single cash
payment of One Million One Hundred Fifty Thousand and No/OO Dollars ($1,150,000.00). If the
Use Restrictions are not removed by the second (2nd) anniversary of mutual execution of this
Agreement, then the City's option to purchase the Property under this Section 1 shall be deemed
to have expired and lapsed.
1.2 Exercise of Option. In order to exercise the option granted hereunder, the
City shall deliver to the Bank on or prior to the second (2nd) anniversary of mutual execution of
this Agreement written notice of its election to purchase the Property in accordance with the
terms of this Section 1.
1.3 Closine of Sale. The closing of the sale of the Property from the Bank to
the City shall occur within thirty (30) days following the Bank's receipt of the City's option
exercise notice.
1.4 Term of Sale. The terms and conditions of the sale of the Property after
the City's exercise of its option shall be in accordance with an agreement that is substantially
similar to the Purchase and Sale Agreement except: (i) the property that is the subject of such
sale shall be the Property described in this Agreement; (ii) the Seller shall be the Bank and the
Buyer shall be the City; (iii) the purchase price for the Property shall be the applicable amount
stated in Section 1.1 of this Agreement; (iv) the closing date shall be the date stated in Section
1.3 of this Agreement; and (v) Sections 6.2 and 20.9 of the Purchase and Sale Agreement shall
not apply.
2. Rieht of First Refusal. Assuming the City has not exercised its option to
purchase the Property granted under Section 1, the Bank grants to the City a right of first refusal
for the purchase of the Property commen~ing the day following the second (2nd) anniversary of
the mutual execution of this Agreement as provided in this Section 2. If the Bank receives a
bona fide offer from a third party for the purchase the Property during the "Term," as defined in
Section 3, and the Bank is willing to accept such offer, then Bank will give the City written
notice thereof and will provide the City with a copy of the proposed contract of sale to the third
party (the "Offer"). The City shall then have twenty (20) days after receipt of the Offer to enter
into a contract for the sale of the Property on the same terms and conditions as stated in the
Offer, which right of the City shall be paramount to the rights ofthe third party. However, if the
City fails to exercise its right of first refusal within the prescribed period of time, or if the City
fails to purchase the Property in accordance with the terms of the Offer through no fault of the
Bank, then the Bank shall have the right to enter into a contract for the sale of the Property with
the third party on the same terms and conditions stated in the Offer. In the event the Bank and
the third party amend the terms of the Offer in any material manner, e.g., change the purchase
price or the terms of financing, the City's right of first refusal with respect to the Property shall
be revived and the City shall have a right to purchase the Property in accordance with the
materially amended terms of the original Offer in accordance with the provisions of this Section.
3. Term of the Rieht of First Refusal. The right of first refusal granted by the
Bank to the City hereunder shall continue in effect until the Bank has conveyed legal title to the
Property to the City or to a third party after complying with the terms of the right of first refusal
-2-
50
described in Section 2, above. However if legal title to the Property is not conveyed to either the
City or to a third party pursuant to the right of first refusal described in Section 2, above, the
City's right of first refusal shall expire as of the fifth (5th) anniversary of the Closing
contemplated under the Purchase and Sale Agreement. Upon the termination of this right of first
refusal, either by a conveyance of the Property or by expiration, the City shall deliver to the
Bank a signed and acknowledged document stating that this right of first refusal has terminated
and that the City expressly relinquishes all rights under this Agreement. In the event the City
fails to deliver such signed acknowledged document within thirty (30) days, the Bank shall have
the authority to: (i) sign on behalf of the City under a limited power of attorney granted
hereunder the necessary document acknowledging the City's relinquishment of its right of first
refusal; and (ii) record such document with the Kitsap County Auditor's Office.
4. Warranty of Title. The Bank warrants and represents that the Bank has good,
fee simple, marketable title to the Property and has full authority to grant this right of first refusal
to the City.
5. No Asshmment bv the City. The City shall have no right to assign any or all of
its rights under this Agreement to a third party. Any direct or indirect assignment of the City's
rights under this Agreement shall automatically terminate the City's right of first refusal to
purchase the Property and all of the City's other rights hereunder.
6. Broker. The parties warrant and represent to each other that no broker brought
about or participated in this Agreement. Each party agrees to indemnify and hold the other party
harmless against all liabilities and expenses (including, without limitation, reasonable attorneys'
fees) arising from any claims for brokerage on this transaction based on any act of the
indemnifying party. The warranties, representations and agreements contained in this Section 6
shall survive any conveyance of the Prope~y pursuant to this Agreement.
7. Recordin2:. This Agreement shall not be recorded. However the City shall have
a right to record a memorandum of this Agreement in a form reasonably acceptable to the Bank
that states that the City has an option to purchase the Property and a right of first refusal to
purchase the Property. If the City elects to record such a memorandum, the preparation and
recording of such memorandum shall be at the City's sole expense.
8. Bindin2: Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective representatives, successors and assigns.
9. Notices. Unless applicable law requires a different method of giving notice, any
and all notices, demands or other communications required or desired to be given hereunder by
any party (collectively, "notices") shall be in writing and shall be validly given or made to
another party if delivered either personally, or by Federal Express or other overnight delivery
service of recognized standing, or by United States Mail, certified, registered, or express mail
with postage prepaid. If such notice is personally delivered, it shall be conclusively deemed
given at the time of such delivery. If such notice is delivered by Federal Express or other
overnight delivery service of recognized standing, it shall be deemed given one (1) business day
after the deposit thereof with such delivery service. If such notice is mailed as provided herein,
- 3 -
5(
--_._-----~--_.j
such shall be deemed given three (3) business days after the deposit thereof in the United States
Mail. Each such notice shall be deemed given only if properly addressed to the party to whom
such notice is to be given as follows:
To Bank:
David K. Johnson
Westsound Bank
190 Pacific Avenue
Bremerton, W A 98337
To City:
City of Bremerton
c/o The Office of the Mayor
345 6th Street, Suite 600
Bremerton,WA 98337
Any party hereto may change its address for the purpose of receiving notices as herein provided
by a written notice given in the manner aforesaid to the other party hereto.
10. Event of Default. In the event a party hereto defaults or breaches an obligation
hereunder, the non-breaching party shall be entitled to any remedy available in law or in equity
including the right to seek injunctive relief without posting a bond. The remedies available to
the non-breaching party may be pursued concurrently or consecutively by such party at its own
election and the pursuit of one remedy shall not constitute a waiver of the other remedies.
11. Termination of Ril!hts and Oblil!ations. Notwithstanding any provision of this
Agreement to the contrary all rights and obligations of each party hereunder shall terminate if the
sale and purchase of the property described in the Purchase and Sale Agreement fails to close in
accordance with the terms of the Purchase and Sale Agreement. In such event and if this
Agreement (or a memorandum thereof) has been previously recorded with the Kitsap County
Auditor's Office, then the City shall deliver to the Bank a signed and acknowledged document
stating that all of rights hereunder have terminated and that the City expressly relinquishes all
rights hereunder. In the event the City fails to deliver such signed acknowledged document
within thirty (30) days of this Agreement's termination, the Bank shall have the authority to: (i)
sign on behalf of the City under a limited power of attorney granted hereunder the necessary
document acknowledging the City's relinquishment of all of its rights hereunder; and (ii) record
such document with the Kitsap County Auditor's Office.
12. Miscellaneous.
12.1 Applicable Law. . This Agreement shall in all respects be governed by the
laws of the state of Washington.
12.2 Further Assurances. Each of the parties shall execute and deliver any
and all additional papers, documents and other assurances, and shall do any and all acts and
things reasonably necessary in connection with the performance of its obligations hereunder, to
carry out the intent of the parties hereto.
12.3 Modification or Amendment. No amendment, change or modification of
this Agreement shall be valid, unless in writing and signed by all of the parties hereto.
-4-
5J-
12.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
12.5 Entire A2:reement. This Agreement constitutes the entire understanding
and agreement of the parties with respect to its subject matter and any and all prior agreements,
understandings or representations with respect to its subject matter are hereby canceled in their
entirety and are of no further force or effect.
12.6 Attornevs' Fees. Should either party bring legal action to enforce or
interpret this Agreement, each party shall be responsible for its own attorneys' fees and costs
incurred in connection with such action, whether in mediation or arbitration, at trial or on appeal,
or in any bankruptcy proceeding.
12.7 Headin2:s. The captions and section headings used in this Agreement are
inserted for convenience of reference only and are not intended to define, limit or affect the
interpretation or construction of any term or provision hereof.
12.8 Confidentiality. All information furnished to the City relating to the
Property (other than matters of public record), including without limitation, any information
obtained through the City's inspection of the Property and any and all documents provided to the
City, will be treated by the City as confidential, will not be disclosed by City to anyone (except
City's consultants and sources of financing having a need to know), and will be returned by the
City to the Bank unless the City acquires the Property occurs in accordance with this Agreement.
12.9 Use of Property. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall have a right to.: (i) encumber the Property provided however such
encumbrance is removed if and when the Bank transfers legal title to the Property to the City as
described in this Agreement; and (ii) lease all or part of the Property to a third party provided
however the rights of such tenant shall terminate as of the date the Bank transfers legal title to
the Property to the City as described in this Agreement.
THE BANK:
WESTSOUND BANK, a Washington State Chartered Bank
By:
David K. Johnson, CEO/President
Dated -
,2005
- 5 -
53
THE CITY:
CITY OF BREMERTON, a Washington municipal
corporation
By:
Cary Bozeman
Its: Mayor
(Print Name)
(Print Title)
Dated -
,2005
-6-
5V
STATE OF WASHINGTON)
COUNTY OF KITSAP
) ss.
)
On this day of ,2005, before me personally appeared David
K Johnson, to me known to be the CEO/President of West sound Bank that executed the within
and foregoing Right of First Refusal and Option to Purchase Agreement, and acknowledged said
instrument to be the free and voluntary act and deed of said Bank, for the uses and purposes
therein mentioned, and on oath stated that he is authorized to execute said instrument.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
Print Name:
NOTARY PUBLIC in and for the State of Washington;
residing at:
My commission expires:
ST ATE OF WASHINGTON)
COUNTY OF KITSAP
) ss.
)
On this day of , 2005, before me personally appeared Cary
Bozeman, to me known to be the Mayor of the City of Bremerton that executed the within and
foregoing Right of First Refusal and Option to Purchase Agreement, and acknowledged said
instrument to be the free and voluntary act and deed of said City, for the uses and purposes
therein mentioned, and on oath stated that he/she is authorized to execute said instrument.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
Print Name:
NOTARY PUBLIC in and for the State of Washington;
residing at:
My commission expires:
- 7 -
55
EXHIBIT A
(Legal Description for the Property -190 Pacific Ave., Bremerton, W A)
Lots 3, 4, 5, 6, and 7, Block 9, Town of Bremerton, according to
the plat recorded in Volume 2 of Plats, Page 30, Records of Kitsap
County, Washington
Tax Parcel No. 3718-0009-003-0005
R:\LEGAL\Files\Current Active Files\West Sound Bank - Real Estate\2005.01.l9 Right of First Refusal-FinaLdoc
- 8 -
51
DATE SUBMITTED: 1-20-05
BILL # 05"" -- 033
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
loB
.............................&....................8.........................................
SUBJECT: Real Estate Purchase and Sale
Agreement with Kitsap Community Federal
Credit Union
Committee Meeting Date: 1-26-05
COUNCIL MEETING Date: 2-2-05
Department: Econ Development
Presenter: Gary Sexton
Phone: 473-5282
SUMMARY: Kitsap Community Federal Credit Union owns property located at 1025 Burwell
Street. Staff is proposing purchasing. the property for the new public safety facility.
A TT ACHMENTS: Proposed Real Estate Purchase and Sale Agreement
e~lo{-\-s 1), E, ~ F l.J\lt ~ f-\~\\ 'Z...eo! f'Cio"r t-o
c.\OS\~~ .
FISCAL IMP ACTS (Include Budgeted Amount): The Public Safety Capital Improvement Fund has
sufficient 2005 Funds appropriated to cover the earnest money payment. The 2006 purchase
commitment, contained in Sec. 3 Purchase Price of this agreement, will need to be incorporated into
the 2006 budget ($2,325,000). It is expected Public Safety Bond proceeds will be carried forward to
cover the actual 2006 purchase COmmitment/'If<J/~S
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
I CONSENT AGENDA D I
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
Move to approve the Real Estate Purchase and Sale Agreement with Kitsap Community Federal
Credit Union and authorize the Mayor to finalize and execute the agreement with substantially
the same terms and conditions presented.
COUNCIL ACTION: D Approve D Deny D Table
D Continue D No Action
57
REAL EST A TE PURCHASE AND SALE AGREEMENT
WITH EARNEST MONEY PROVISION
This contract controls the terms ofthe sale of real property.
(Please read carefully before si~nin~.)
This Agreement is entered between the CITY OF BREMERTON, a Washington municipal
corporation, whosemailingaddressis3456thStreet.Suite 600, Bremerton, Washington 98337,
("Buyer"), and KITSAP COMMUNITY FEDERAL CREDIT UNION, a
, ("Seller"), for the sale and purchase of real property as follows:
1. PROPERTY. The property, including all improvements and appurtenances situated
thereon, which Buyer agrees to buy and Seller agrees to sell, is commonly known as 1025 Burwell
Street, Bremerton, Washington 98337 (the "Property"), and which Property is legally described in
Exhibit A, attached hereto and incorporated herein by this reference. A site plan ofthe Property is
attached as Exhibit B, incorporated herein by this reference.
2. EARNEST MONEY. Buyer shall deposit with Transnation Title Company, Twenty-
five Thousand Dollars ($25,000.00) in the form of a promissory note, as earnest money and part
payment on the purchase price of the following described real estate.
3. PURCHASE PRICE.
(a) The total purchase price for the Property is Two Million Three Hundred Fifty
Thousand Dollars ($2,350,000), including earnest money.
(b) The purchase price is payable as follows:
(1) Buyer shall pay seller Earnest Money of Twenty Five Thousand
Dollars ($25,000) as set for in paragraph 2 above.
(2) Buyer shall pay seller at closing One Million One Hundred Fifty
Thousand Dollars ($1,150,000) on March 15,2006.
(3) Buyer shall pay seller the balance of ($1,175,000) on July 31, 2006,
except, time for payment may be extended as provided for in
paragraph 5(c).
4. CLOSING. Shall occur on March 15,2006.
5. POSSESSION.
(a) Buyer shall receive possession of the westerly portion of the property as set
forth on the site plan attached as Exhibit B at Closing. Said portion is
marked as "annex property." Upon obtaining possession, Buyer shall have
full use thereof and shall be entitled to commence earthwork and construction
of improvements.
(b) Buyer shall receive possession of the balance of the property on July 31,2006
excepting as provided for in section 5(c). Seller shall provide general
maintenance ofthe structure(s) and related grounds during Sellers possession
REAL ESTATE PURCHASE AND SALE AGREEMENT
Page 1 of 6
t:;g
ofthe easterly portion of the property prior to Buyers possession of the same.
Seller's status while in possession ofthe easterly portion ofthe property shall
be that of a tenant.
(c) Seller may extend transferring possession to the balance of the property
beyond July 31, 2006 for a period not to exceed four months. Notice of
intent to extend date of possession shall be given in writing not less than 60
days prior to the first day of the respective month(s) seller intends to retain
possession. In the event seller extends delivery of possession to the balance
ofthe property, the payment by buyer ofthe purchase price balance provided
for in paragraph 3(b )(2) shall be delayed until transfer to seller of said
remaining property.
(d) This paragraph shall survive closing.
6. LEASE WITH OPTION TO PURCHASE ADJACENT PARKING. At closing,
the parties shall execute with the Buyer as Lessee and Seller as Lessor, a five year lease with option
to purchase the parking lot adjacent to the subject property, legally described in Exhibit C attached
and incorporated by reference herein. The lease with option to purchase shall be in the form and with
terms contained in Exhibit D. The purchase price shall be Eighty Thousand Dollars ($80,000.00)
payable in cash at closing. The monthly lease rate shall be $785.00 per month.
7. CONTINGENCIES. This agreement is contingent upon:
(a) Acceptance of its terms by the Bremerton City Council and the Kitsap
Community Federal Credit Union Board of Directors.
(b) Buyers review and approval of the title report on the property prior to
Closing.
(c) Prior to vacating the property, Seller removing all personal property,
equipment, and fixtures except those items as identified in Exhibit E, which
list will be attached prior to closing. Buyer shall purchase those items listed
in Exhibit F at a price agreed to prior to closing.
(d) A Feasibility Study as follows:
(1) Buyer shall have three (3) months from the date of mutual acceptance
of this Agreement to determine, in Buyer's sole and absolute
discretion, if the Real Property is feasible for investment and/or
development by Buyer for its uses.
(2) Buyer's feasibility study may include (but is not limited to) a Phase I
and/or Phase II environmental assessment, utilities availability and
capacity, access availability, zoning, preliminary architectural and
engineering studies, marketing feasibility.
(3) A Phase II environmental assessment may be conducted which
generally will consist of on-site sampling, including the digging or
boring of test holes for soil samples. BY EXECUTING THIS
AGREEMENT, SELLER HEREBY AUTHORIZES BUYER A
RIGHT OF ENTRY ON TO THE PROPERTY FOR THE PURPOSE
REAL ESTATE PURCHASE AND SALE AGREEMENT
Page 2 of 6
5~
OF CONDUCTING THIS FEASIBILITY STUDY AND TESTING
AT SUCH LOCATION AND IN SUCH MANNER AS MAY BE
APPROVED IN ADVANCE BY SELLER.
(4) Buyer agrees to conduct its feasibility study at its sole cost and
expense; and if Buyer does not remove the feasibility contingency on
or before the expiration of the feasibility period, then Buyer also
agrees, if requested by Seller, to deliver to Seller copies of all
information and documentation obtained by Buyer in connection with
its feasibility study.
(5) If Buyer fails to notify Seller of its approval ofthe Real Property, in
writing, on or before the expiration of the feasibility study period,
then this Agreement shall be terminated, and neither Buyer nor Seller
shall have any further rights, duties or obligations hereunder, except
that the Earnest Money held in Accountable Escrow, by Buyer to
Seller shall be immediately returned to Buyer. Buyer agrees to return
the Real Property to its original state (i.e., fill all boring holes, etc.).
Should any of these contingencies not be met prior to closing, then this Agreement shall
terminate and neither Buyer nor Seller shall have any further rights, duties or obligations hereunder,
except that the Earnest Money held by Transnation Title, shall be immediately returned to Buyer.
8. CONVEYANCE AND CONDITION OF TITLE. The title to the real property
shall be conveyed by Seller to Buyer at closing by Statutory Warranty Deed, free and clear of all
liens, encumbrances or defects except those described in Paragraph 9 below.
9. TITLE INSURANCE. At Closing, Seller shall cause Transnation Title Company, to
issue a standard form owner's policy of title insurance to Buyer in an amount equal to the total
purchase price ofthe Real Property, and insuring the Real Property being discharged by Seller shall
be paid from Seller's funds at Closing. For purposes ofthis Agreement, the following shall not be
deemed encumbrances or defects: rights reserved and federal patents or state deeds; building or use
restrictions consistent with current zoning, and utility and road easements of record. Iftitle cannot
be made so insurable prior to the Closing date called for herein, unless, Buyer elects to waive such
defects or encumbrances, this agreement shall terminate.
10. CLOSING COSTS AND PRO-RATIONS. The cost of escrow shall be shared
equally between Buyer and Seller, except those fees which are expressly limited by Federal
Regulation. Seller shall pay for excise tax and revenue stamps. Taxes due shall be paid by seller,
Water and other utility charges, if any, shall be pro-rated as of date of closing unless otherwise
agreed.
11. CASUALTY LOSS. If prior to closing, improvements on said premises shall be
destroyed or materially damaged by fire or other casualty, this agreement, at option of the Buyer,
shall become null and void.
REAL ESTATE PURCHASE AND SALE AGREEMENT
Page 3 of 6
(Po
12. SELLER'S REPRESENTATIONS. Seller represents:
(a) that it will maintain the property in present or better condition until time of
agreed possession,
(b) that it has no knowledge or notice from any governmental agency of any
violation of laws relating to the subject property.
( c) that the property is not encumbered by any leases.
13. HAZARDOUS SUBSTANCES. To the best of Seller's knowledge, the Property is
not in violation of any law, ordinance, rule or regulation relating to the environmental conditions
thereon. Moreover, Seller represents, warrants and agrees that Seller has not used, generated,
manufactured, produced, stored, released, discharged or disposed of on, under or about the Property
(or off-site of the Property that might affect the Property) or transported from the Property, any
Hazardous Substance (as defined below) in violation of Environmental Laws (as defined below), nor
to the best of Seller's knowledge has any Hazardous Substance been used, generated, manufactured,
produced, stored, released, discharged or disposed of on, under or about the Property or off-site of
the Property in violation of Environmental Laws that might affect the Property. To the best of
Seller's knowledge no underground storage tanks are currently located on the Property. The term
"Hazardous Substance" means any hazardous or toxic substance, material or waste, pollutants or
contaminants, as defined, listed or regulated now or in the future by any federal, state or local law ,
ordinance, code, regulation, rule, order or decree regulating, relating to or imposing liability or
standards of conduct concerning, any environmental conditions, health or industrial hygiene
(collectively, "Environmental Laws"), including without limitation, (i) chlorinated solvents, (ii)
petroleum products or by-products, (iii) asbestos, (iv) polychlorinated biphenyls, and (v) anything
that would be a hazardous waste, material or substance, toxic substance or pollutant, as defined
under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 V.S.C. 99601 et seq.; Hazardous Materials Transportation Act, 49 V.S.C. 9 1801 et
seq.; Resource Conservation and Recovery Act, 42 V.S.C. 96901 et seq., the Clean Water Act, 42
V.S.C.9 1251 et seq., the Washington Environmental Policy Act, RCW Ch. 43.21, the Washington
Water Pollution Control Act, RCW 90.48.010 et seq., the Washington Hazardous Waste
Management Act, RCW Ch. 70.105, the Washington Model Toxics Control Act, RCW Ch. 70.1 05D,
and the regulations promulgated thereunder.
14. INDEMNIFICATION.
(a) GENERAL. Seller shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims,
injuries, damages, losses or suits, including all legal costs and attorney fees,
arising out of or in connection with the Seller's possession, use, occupancy
and maintenance of the portion of the site in which it retains possession
following Closing.
(b) ENVIRONMENTAL. Seller shall protect, indemnify, defend and hold
harmless Buyer and its directors, officers, employees, agents, parents,
subsidiaries, successors and assigns from any loss, damage, cost expense or
REAL ESTATE PURCHASE AND SALE AGREEMENT
Page 4 of 6
0t
liability (including reasonable attorneys' fees and costs) directly or indirectly
arising out of or attributable to the Sellers use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal or
presence of a Hazardous Substance on, under or about the Property (or off-
site on property owned or operated by Seller that affected the Property) or a
breach of any representation, warranty, covenant or agreement contained in
Section 13 of this Agreement including, without limitation, the costs of any
required or necessary repairs, cleanup or detoxification of the Property and
the preparation and implementation of any closure, remedial or other required
plans.
(c) The foregoing indemnification shall survive Closing.
15. DEFAULT AND ATTORNEY'S FEES.
(a) Buyer's Default. IF BUYER DEF AUL TS HEREUNDER, SELLER'S
SOLE REMEDY SHALL BE LIMITED TO DAMAGES AGAINST
PURCHASE IN THE LIQUIDATED AMOUNT OF THE EARNEST
MONEY PAID BY THE BUYER. BUYER AND SELLER INTEND THAT
SAID AMOUNT CONSTITUTES LIQUIDATED DAMAGES: AND SO
AS TO AVOID OTHER COSTS AND EXPENSES TO EITHER PARTY IN
CONNECTION WITH POTENTIAL LITIGATION ON ACCOUNT OF
BUYERS'DEFAULT. BUYER AND SELLER BELIEVE SAID AMOUNT
TO BE A FAIR ESTIMATE OF ACTUAL DAMAGES.
(b) Seller's Default. IF SELLER DEF AUL TS HEREUNDER, BUYER SHALL
HAVE ALL THE RIGHTS AND REMEDIES AVAILABLE AT LAW OR
IN EQUITY.
(c) Attorney's Fees and Costs. In the event oflitigation to enforce any of the
terms or provisions herein, each party shall pay all its own costs and
attorney's fees.
16. NON-MERGER. The terms, conditions, and provisions oftms Agreement shall not
be deemed merged into the deed, and shall survive the Closing and continue in full force and effect.
17. NOTICES. All notices required or permitted to be given hereunder shall be in
writing and shall be sent U.S. certified mail, return receipt requested, or by facsimile transmission
addressed as set forth below:
(a) All notices to be given to Buyer shall be addressed as follows:
Mayor
City ofBremerton
345 6th Street, Suite 600
Bremerton, Washington 98337
REAL ESTATE PURCHASE AND SALE AGREEMENT
Page 5 of 6
6;).
(b) All notices to be given to Seller shall be addressed as follows:
Either party hereto may, by written notice to the other, designate such other address
for the giving of notices as being necessary. All notices shall be deemed given on the day such
notice is personally served, or on the date of the facsimile transmission, or on the third day following
the day such notice is mailed in accordance with this paragraph.
18. ENTIRE AGREEMENT. This agreement, including all incorporated exhibits,
constitutes the full understanding between seller and buyer. There have been no verbal or other
agreements that modify this agreement.
19. BINDING EFFECT AND SURVIVAL. This Agreement shall be binding upon
parties hereto and their respective heirs, successors and assigns; and the terms, conditions and
provisions of this Agreement shall survive the closing of this transaction.
20. DATE OF MUTUAL ACCEPTANCE. For the purposes of this Agreement, the
date of mutual acceptance of this Agreement shall be the last date on which the parties to this
Agreement have executed this Agreement as indicated below.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date set
forth below.
BUYER:
SELLER:
THE CITY OF BREMERTON
KITSAP COMMUNITY
FEDERAL CREDIT UNION
By:
Cary Bozeman, Mayor
By:
Its:
Dated:
Dated:
APPROVED AS TO FORM:
By:
Roger A. Lubovich, City Attorney
R:\LEGAL\Files\Current Active Files\Kitsap Credit Union - Real Estate\2005.01.19 REPSA.doc
REAL ESTATE PURCHASE AND SALE AGREEMENT
Page 6 of 6
0j
LEGAL DESCRIPTION
Lots 1 through 12, Block 21, Town ofBremerton as per plat recorded
in Volume 2 of Plats, Page 30, records of Kitsap County,
Washington.
EXHIBIT A
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LEGAL DESCRIPTION OF PARKING LOT
Lots 8 & 9, Block 22, Town of Bremerton as per plat recorded in
Volume 2 of plats, Page 30, records of Kit sap County, Washington.
EXHffiIT C
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DATE SUBMITTED: January 11,2005
BILL # ()~ - 03<f
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
~c
........................................................................................
SUBJECT: Norm Dicks Government
Center Parking Agreement
Committee Meeting Date: January 26,2005
COUNCIL MEETING Date: February 2, 2005
Department: City Attorney's Office
Presenter: Roger A. Lubovich
Phone: 473-2345
SUMMARY: The proposed agreement is between principal condominium owners of the Norm Dicks
Government Center. The agreement allocates parking spaces within and without the government
center to the condominium owners.
ATTACHMENTS: Proposed Norm Dicks Government Center Parking Agreement
FISCAL IMPACTS (Include Budgeted Amount):
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
---:
r
CONSENT AGENDA D
I move to approve the proposed Norm Dicks Government Center Parking Agreement and authorize
the Mayor to execute the same with substantially the same terms and conditions as presented.
COUNCIL ACTION: D Approve D Deny D Table
f.o7
D Continue D No Action
NORM DICKS GOVERNMENT CENTER
PARKING AGREEMENT
This Parking Agreement ("Agreement") is entered into between the Kitsap County Consolidated
Housing Authority, the City of Bremerton, Kitsap County and the Kitsap County Health District
(the "Health District") (collectively, the "parties") on the date fully executed below.
RECITALS
WHEREAS, the parties are contemplated to be the principal initial owners of the office units of
the Bremerton Government Center, a condominium, also known as the Norm Dicks Government
Center, ("Government Center") to be formed; and
WHEREAS, the parties wish to enter into this Agreement in order to resolve amicably a special
parking rights related issue that has arisen in the course of negotiations over creation of the
condominium; and
WHEREAS, the parties acknowledge that the Health District's participation in the Government
Center is contingent upon the parties' entering into this Agreement, and each party by the act of
entering into this Agreement acknowledges that adequate consideration as to it exists for the
enforceability of this Agreement;
WHEREAS, the parties acknowledge that visitor parking is needed for other occupants of the
building, and
WHEREAS, the parties intend this Memorandum to be legally binding to the fullest extent
permitted by law; NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
AGREEMENT
Section 1. Health District Parking. Twenty-two (22) uncovered parking spaces will be reserved
for clients ofthe Health District or for official Health District business use. Eighteen (18) of
these spaces will be the parking spaces on the east side of the building. The remaining four (4)
spaces will be on 5th Street, immediately east of the entrance to the parking garage. The entrance
to the eighteen (18) spaces on the east side will be marked with signs indicating that the spaces
are reserved for Health District visitor parking, between the hours of7:30 AM to 5:00 PM. The
four (4) spaces on 5th Avenue will be marked with signs approved by the Health District and the
City ofBremerton indicating that the spaces are reserved for Health District visitor or official
business use between the hours of7:30 AM and 5:00 PM. The Health District shall have the
exclusive right to claim these twenty-two (22) parking spaces for use during the hours posted for
Health District use in partial satisfaction of its parking-rights allocation for covered parking
under the Condominium Declaration. The covered parking spaces vacated by the Health District
in exchange for the twenty-two (22) uncovered spaces is reallocated to the parties with new
parking allocation and assignments for the parties as set forth in Exhibit "A" attached hereto.
~q,
Eighteen (18) parking spaces. In the event that any or all of the eighteen (18) uncovered parking
spaces are eliminated for any reason at any time, the Health District shall have the right to claim
a proportionate share of the covered parking spaces in the Government Center parking garage
based on the allocation of parking spaces set forth in the column labeled "Share of Spaces GC
Inside" in Exhibit "A" attached hereto, unless alternate parking spaces are provided and agreed
to by all parties as replacement parking spaces. In such event, the parties shall proportionally
reallocate the remaining uncovered outside parking spaces in the same manner unless otherwise
agreed. Any reallocation of parking spaces herein is subject to the approval of the Government
Center Owner's Association Board ("Board"). Ifthe Health District wishes voluntarily to
exchange some or all ofthe eighteen (18) uncovered spaces for other spaces, it will be entitled to
do so only with the approval of, and on such terms and conditions as set by the Board.
Four (4) parking spaces. In the event that any or all ofthe four (4) parking spaces on 5th Street,
immediately east ofthe entrance to the parking garage, are eliminated for any reason at any time,
the Health District shall have the right to claim a like number of spaces from the City of
Bremerton in the Government Center parking garage, or shall acquire a like of number or
parking spaces from the City at another appropriate parking area if approved by the Health
District. All parties acknowledge that the four (4) unccivered spaces on 5th street assigned to the
Health District were exchanged with the City ofBremerton resulting in the City of Bremerton
receiving four (4) covered spaces from the Health District. With regard to these traded spaces,
the parties further acknowledge that the Health District and the City of Bremerton may re-
exchange all or a portion of these spaces to each other without approval of the Board.
These special parking space rights are specific to the Health District as initial owner of Units 3
and 4A and are not transferable to any lessee or transferee of the Health District's interests in
Units 3 and 4A. '
Section 2. City of Bremerton Visitor Parking. Seven (7) uncovered parking spaces are on the
north side of the building. Two of these spaces are designated and marked for disabled parking
available to all building visitors. The remaining five (5) spaces will be marked with signs
indicating that the spaces are reserved for City of Bremerton visitor or official business use
between the hours of7:30 AM and 5:00 PM.
Section 3. Over-Issuance of Permits. The Board may authorize the over-issuance of parking
permits to the number of spaces in the parking garage in order to realize higher utilization ofthe
parking garage.
Section 4. Disabled Parking. There are currently two (2) unassigned disabled parking spaces in
the parking garage. These spaces will be allocated or assigned by the Board pursuant to Article 8
of the "Condominium Declaration for Bremerton Government Center, A Condominium." These
spaces will be allocated or assigned based on availabil~ty only to those having access to the
parking garage and displaying a disabled parking placard in their vehicle.
Section 5. Parking Agreement Modification. Except as otherwise provided in this agreement,
the parking allocation set forth in Exhibit "A" may be modified, reallocated and/or reassigned
~~
2
subject to approval of the Board pursuant to Article 8 of the "Condominium Declaration for
Bremerton Government Center, A Condominium."
Section 6. Counterparts. This Agreement may be executed in counterparts.
KITSAP COUNTY CONSOLIDATED HOUSING AUTHORITY:
DATE:
Kim Abel, Chair
ATTEST:
CITY OF BREMERTON:
By
Cary Bozeman, Mayor
DATE:
ATTEST:
KITSAP COUNTY:
BOARD OF COUNTY COMMISSIONERS
DATE:
Chris Endresen, Chair
ATTEST:
Opal Robertson, Clerk of the Board
KITSAP COUNTY HEALTH DISTRICT:
BOARD OF HEALTH
DATE:
Patty Lent, Chair
ATTEST:
R:\LEGAL\Files\Current Active Files\Govemment Center\BGC Parking MOU3.doc
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DATE SUBMITTED: 1-24-05
BILL # O~- 03S
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
0D
........................................................................................
SUBJECT: Harborside Condominiums
Agreement between Kitsap County, Kitsap
County Consolidated Housing Authority and
the City ofBremerton regarding a
Contingent Loan Agreement
Committee Meeting Date: 1-26-05
COUNCIL MEETING Date: 2-2-05
Department: City Attorney's Office
Presenter: Roger A. Lubovich
Phone: 473-2345
SUMMARY:
Two agreements are proposed for execution by the City, Kitsap County, and the Kitsap County
Consolidated Housing Authority (KCCHA). The first is the Harborside Condominiums
Agreement and the second is the Contingent Loan Agreement. (There is a second contingent loan
agreement between Kitsap County and KCCHA of which the City is not a party) These
agreements provide guarantees for financing and development ofthe condominium project by the
Kitsap County Consolidated Housing Authority.
ATTACHMENTS:
1. Harborside Condominiums Agreement
2. Contingent Loan Agreement
3. Harborside Condominiums Uses and Sources of Funds Exhibit
FISCAL IMPACTS (Include Budgeted Amount): The City will be undertaking a commitment of
$2,000,000 (plus related interest) of contingent debt liability in the event sale proceeds from the
condominium project are not sufficient to repay the KCCHA's project debt. However, this contingent
liability is not invoked until Kitsap County has fully exercised its contingent debt guarantee of
$11,867,292.
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
Move to approve the Harborside Condominiums Agreement and the Contingent Loan
Agreement between the City of Bremerton, Kitsap County and Kitsap County Consolidated
Housing Authority and authorize the Mayor to execute the agreements in substantially the same
form as presented subject to final approval of the City Attorney and Director of Financial
Services.
I CONSENT AGENDA 0 I
COUNCIL ACTION: D Approve D Deny D Table
l;}-
D Continue D No Action
Draft Dated January 24,2005
HARBORSIDE CONDOMINIUMS AGREEMENT
This Harborside Condominiums Agreement (this "Agreement") is entered into this _
day of , 2005, by and among the KITSAP COUNTY CONSOLIDATED HOUSING
AUTHORITY (the "Authority"), KITSAP COUNTY, WASHINGTON (the "County"), and the
CITY OF BREMERTON, WASHINGTON (the "City").
RECITALS
A. RCW 35.82.070(12) provides that a housing authority may, upon the request of a
county or city, exercise any powers of an urban renewal agency (now known as a community
renewal agency) under chapter 35.81 RCW.
B. The City Council of the City, by Ordinance No. 4830, previously adopted a
"Community Renewal Plan for the Project Area" (the "Community Renewal Plan") and
authorized the Authority to exercise the powers of a community renewal agency pursuant to
chapter 35.81 RCW.
C. RCW 35.81.070(8) provides that such powers include the power to "borrow
money" and to "accept . . . loans . . . from any sources, public or private" for the purposes of
chapter 35.81 RCW.
D. The Project (defined below) IS located within the "blighted area" that is the
subject of the Community Renewal Plan.
E. RCW 35.81.130 provides that, "for purposes of aiding in the planning,
undertaking, or carrying out of a community renewal project located within the area in which it
is authorized to act, any public body. . . may, upon such terms, with or without consideration,
. . . lend, grant, or contribute funds, including without limitation any funds derived from bonds
issued or other borrowings authorized in this chapter, to a municipality or other public body."
F. RCW 35.81.130 provides further that, "for purposes of aiding in the planning,
undertaking, or carrying out of a community renewal project located within the area in which it
is authorized to act, any public body. . . may, upon such terms, with or without consideration,
. . . enter into agreements (which may extend over any period, notwithstanding any provision or
rule of law to the contrary) with a municipality or other public body respecting action to be taken
pursuant to any of the powers granted by [this chapter], including the furnishing of funds or other
assistance in connection with a community renewal project."
G. The Authority plans to issue, from time to time, bonds or other obligations (the
"Obligations") to fmance or refmance, as the case may be, the development of a 78-unit residential
condominium complex ("Phase I") and related public space ("Phase II"), as well as a possible 122
additional residential condominium units ("Phase 111"), to be known as the Harborside
Condominiums (the "Project").
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Draft Dated January 24, 2005
H. It is anticipated that the Obligations issued to finance or refinance Phase I and
Phase II of the Project will be (i) privately placed directly with a bank or other such financial
institution and/or (ii) publicly offered for sale with the timely payments of principal and interest
on such Obligations being secured by one or more irrevocable letters of credit (each a "Letter of
Credit" and, collectively, the "Letters of Credit") issued by a bank or other such financial
institution, so as to obtain the most favorable interest rates thereon, which interest rates are
essential to the feasibility of the Project. In this Agreement, all of the banks or other such
financial institutions which directly purchases the Obligations as well as all of the banks or other
such financial institutions which issue a Letter of Credit to secure the Obligations are, in each
instances, as applicable, collectively referred to herein as the "Bank."
I. It is further anticipated that the Bank will seek additional assurances that the
amounts of and all accrued but unpaid interest (i) on the Obligations, if such Obligations are
privately placed with the Bank, or (ii) on any draws on the Letters of Credit made to pay
principal and interest on the Obligations, if such Obligations are publicly offered for sale, issued
to finance or refinance Phase I and Phase II of the Project will be paid when due.
J. The purpose of this Agreement is to formalize commitments whereby the County
and the City will enter into one or more contingent loan agreements (as applicable) to provide such
additional assurances.
NOW THEREFORE, the Authority, the County and the City enter into this Agreement
pursuant to RCW 35.81.130(5) to set forth the intentions of each party with respect to the
development of the Project.
Section 1. Incorporation of Recitals. The foregoing recitals to this Agreement are
hereby incorporated herein as part of this Agreement as representations (as applicable) of the
parties hereto.
Section 2. Development of the Proiect: Issuance of Obligations. The Authority
agrees to proceed with reasonable dispatch in connection with the issuance of the Obligations
related to and the development of Phase I and Phase II of the Project; provided that no such
Obligations will be issued until the Authority has entered into purchase and sale agreements with
qualified buyers for at least 60% of the 78 residential condominium units to be developed in
Phase I.
Section 3.
Contingent Loan Agreements.
(i) The County. The County agrees that it will enter into one or more contingent
loan agreements, as necessary, with the Authority (and, if reasonable and necessary, the Bank),
each in substantially the form attached hereto as Exhibit A, to evidence the County's commitment to
make advances to or on behalf of the Authority to cover any deficiencies in the amounts provided
by the Authority to pay, when due, the amounts of and all accrued but unpaid interest on, as
applicable, (i) the Obligations, if such Obligations are privately placed with the Bank, and (ii)
any draws on any Letter of Credit issued by the Bank to secure the Obligations, if such
Obligations are publicly offered for sale, which are issued by the Authority to finance or
50495877.06
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Draft Dated January 24, 2005
refinance, as the case may be, Phase I and Phase II of the Project; provided that the total amount
of funds to be -advanced by the County pursuant to such contingent loan agreements shall not, in
any event, exceed (a) thirteen million nine hundred thousand dollars ($13,900,000.00) plus
interest accrued thereon with respect to any Obligations or any Letter of Credit issued by the Bank
to secure the Obligations, as applicable, which are issued by the Authority to fmance Phase I and
(b) eight million five hundred thousand dollars ($8,500,000.00) plus interest accrued thereon with
respect to any Obligations or any Letter of Credit issued by the Bank to secure the Obligations, as
applicable, which are issued by the Authority to finance Phase II of the Project; provided further
that the County shall not be required to enter into any such contingent loan agreement or make
any such advances to or on behalf of the Authority to make up any deficiencies with respect to the
Obligations or any Letter of Credit issued by the Bank to secure the Obligations, as applicable,
which are issued by the Authority to finance Phase I or Phase II of the Project unless the City has
entered into a contingent loan agreement with the County as described in Section 3(ii) below. The
County acknowledges and agrees that its obligation to make any advances to or on behalf of the
Authority under any contingent loan agreement entered into pursuant to this Agreement shall be
absolute and unconditional, shall not be subject to diminution by setoff, counterclaim, abatement or
otherwise and shall be secured by the full faith, credit and resources of the County.
(ii) The City. The City agrees that it will enter into a contingent loan agreement
with the County and the Authority, in substantially the form attached hereto as Exhibit B, to
evidence the City's commitment to make advances to or on behalf of the County to make up any
deficiencies in the amounts provided by the Authority to pay, when due, the amounts of and all
accrued but unpaid interest on, as applicable, (i) the Obligations, if such Obligations are privately
placed with the Bank, and (ii) any draws on any Letter of Credit issued by the Bank to secure the
Obligations, if such Obligations are publicly offered for sale, which are issued by the Authority
to finance Phase I of the Project; provided that the City shall not be required to make any such
advances to the County until the County has made advances to or on behalf of the Authority under a
contingent loan agreement entered into pursuant to Section 3(i) with respect to Phase I of the
Project in an aggregate amount equal to eleven million eight hundred sixty seven thousand two
hundred ninety two dollars ($11,867,292) plus interest accrued thereon. The City acknowledges
and agrees that its obligation to make any advances to or on behalf of the County under a
contingent loan agreement entered into pursuant to this Agreement shall be absolute and
unconditional, shall not be subject to diminution by setoff, counterclaim, abatement or otherwise
and shall be secured by the full faith, credit and resources of the City. The City obligations under
the contingent loan agreement with the County entered into pursuant to this Section 3(ii) shall not,
in any event, exceed two million dollars ($2,000,000.00) plus interest accrued thereon and shall
be limited to Phase I of the Project.
Section 4. Additional Conditions. The obligations of the County and the City to
deliver any contingent loan agreement pursuant to this Agreement shall be subject to:
(i) The pledge by the Authority of all proceeds from the sale of the condominium
units, and related parking spaces, developed in Phase I that remain following the payment in full of
the Authority's Non-Revolving Tax-Exempt Line of Credit Revenue Note, 2003 (Bremerton
Waterfront Condos), in a principal amount not to exceed $6,500,000, draws on which were
previously made by the Authority to finance the acquisition of land for and pre-development
15
50495877.06
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Draft Dated January 24,2005
costs of the Project, less any ordinary and customary expenses incurred by the Authority in
connection the development of the Project (including but not limited to costs associated with
marketing the condominium units) (a) to pay the Obligations issued to finance or refInance Phase
I of the Project, and then (b) to pay outstanding principal of and interest on advances made by the
County under its contingent loan agreement(s) with respect to Phase I and then (c) to pay
outstanding principal of and interest on advances made by the City under its contingent loan
agreement with respect to Phase I. The Authority shall be entitled to retain any additional
proceeds from the sale of the condominium units, and related parking spaces, developed in Phase I
that remain following such application to be used by it for any lawful purpose, including but not
limited to the repayment of the developer loan expected to be made by the Authority with respect
to Phase I in a principal amount of approximately $2,200,000.
(ii) The pledge by the Authority of any real property acquired by the Authority with
the proceeds of the Obligations issued to finance Phase II of the Project to secure the repayment of
such Obligations, as well as any outstanding principal of and interest on any advances made by the
County under its contingent loan agreement(s) with respect to Phase II, if the Authority elects not
to develop Phase III. The Authority shall also agree that if the Authority elects to develop Phase III
'of the Project, it will pledge all the proceeds from the sale of the additional residential
condominium units, and related parking spaces, developed in Phase III less any ordinary and
customary expenses incurred by the Authority in connection the development of the Project
(including but not limited to costs associated with marketing the condominium units) to, in the
following order of priority, (a) pay the Obligations issued to finance Phase II of the Project, (b)
pay outstanding principal of and interest on advances made by the County under any contingent
loan agreement with respect to Phase II and (c) pay the Obligations issued to finance Phase III.
The Authority shall be entitled to retain any additional proceeds from such sale of the
condominium units developed in Phase III that remain following such application to be used by it
for any lawful purpose, including but not'limited to the repayment of the developer loan expected
to be made by the Authority with respect to Phase II, in a principal amount of approximately
$2,000,000.
Section 5.
Future Phases~ Control.
(i) The Authority may at any future time proceed with the development of additions
to or subsequent phases of the Project, including, but not limited to Phase III, but neither the
County nor the City shall be obligated pursuant to this Agreement to take any action with respect
to the financing of such future development.
(ii) Notwithstanding anything else herein to the contrary, the Authority shall have full
and complete control over the development the Project, as well as the sale of the condominium
units.
Section 6. Term of Agreement. This Agreement shall terminate upon repayment of
(i) the Obligations issued by the Authority to fmance or refinance, as the case may be, Phase I and
Phase II of the Project and (ii) any outstanding principal of and interest on advances made by the
County or the City under any contingent loan agreement with respect to Phase I and II.
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Draft Dated January 24,2005
Section 7. Prior Agreements Superseded. To the extent any of the provisions of the
prior agreemerits among the parties hereto relate to the Obligations or the commitments by the
County and the City hereunder conflict with the provisions of this Agreement, the provisions of
this Agreement shall control.
Section 8.
Miscellaneous.
(i) This Agreement and each provision hereof may be amended, changed, waived,
discharged or terminated only by an instrument in writing signed by the parties hereto.
(ii) Section headings have been inserted in this Agreement only as a matter of
convenience of reference, and it is agreed that such section headings are not a part of this
Agreement and will not be used in the interpretation of any provisions of this Agreement.
(iii) If any provision of this Agreement shall be held or deemed to be or shall, in fact,
be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions, because it conflicts with any provisions of any constitution,
statute or rule of public policy, or for any other reason, such circumstances shall not have the
effect of rendering the provisions in question invalid, inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions of this Agreement
invalid, inoperative or unenforceable to any extent whatever.
(iv) This Agreement may be executed in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same document.
(v) This Agreement shall be interpreted and construed under the provisions of the
laws of the State of Washington.
[Signature Page to Follow]
50495877.06
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"
Dated as of the date set forth above.
Approved as to Form:
By:
Deputy Prosecuting Attorney
Kitsap County, Washington
Approved as to Form:
By:
City Attorney
City of Bremerton, Washington
-.
Draft Dated January 24,2005
KITSAP COUNTY CONSOLIDATED HOUSING
AUTHORITY
By:
Executive Director
KITSAP COUNTY, WASHINGTON
By:
Name:
Title:
CITY OF BREMERTON, WASHINGTON
By:
Name:
Title:
[Signature Page to Harborside Condominiums Agreement]
lOfMO.c:;R'7'7 n..-:
78
Draft Dated January 24, 2004
Exhibit B
CONTINGENT LOAN AGREEMENT
THIS CONTINGENT LOAN AGREEMENT (this "Agreement") made this _ day of
, 2005, by and among CITY OF BREMERTON, WASHINGTON (the "City"),
KITSAP COUNTY, WASHINGTON (the "County"), and KITSAP COUNTY
CONSOLIDATED HOUSING AUTHORITY, a public body corporate and politic of the State of
Washington (the "Authority"),
WIT N E SSE T H:
WHEREAS, RCW 35.82.070(12) provides that a housing authority may, upon the
request of a county or city, exercise any powers of an urban renewal agency (now known as a
community renewal agency) under chapter 35.81 RCW; and
WHEREAS, by Ordinance No. 4830, the City Council of the City of Bremerton adopted
a "Community Renewal Plan for the Project Area" (the "Community Renewal Plan") and
authorized the Kitsap County Consolidated Housing Authority (the "Authority") to exercise the
powers of a community renewal agency pursuant to chapter 35.81 RCW; and
WHEREAS, RCW 35.81.070 (8) provides that such powers include the power to 'borrow
money" and to "accept . . . loans ... from any sources, public or private" for the purposes of
chapter 35.81 RCW; and
WHEREAS, the Project (defined'below) is located within the "blighted area" that is the
subject of the Community Renewal Plan; and
WHEREAS, RCW 35.81.130 provides that, "for purposes of aiding in the planning,
undertaking, or carrying out of a community renewal project located within the area in which it
is authorized to act, any public body. . . may, upon such terms, with or without consideration,
. . . lend, grant, or contribute funds, including without limitation any funds derived from bonds
issued or other borrowings authorized in this chapter, to a municipality or other public body;"
and
. WHEREAS, the Authority, by its Resolution No. 2005-_ adopted , 2005,
authorized the issuance of its [INSERT NAME OF BOND ISSUE] (the "Bond[s]l,,), in the
principal amount of $[ ], to finance the development of a 78-unit residential
condominium complex to be known as the Harborside Condominiums (the "Project"), pending
the receipt of proceeds from the sale of such condominiums; and
[WHEREAS, [INSERT NAME OF LETTER OF CREDIT PROVIDER] (the "Bank") has
agreed to facilitate the financing of the Project by providing credit enhancement for the Bonds
pursuant to, and subject to the limitations of, an irrevocable letter of credit (the "Letter of
I Use if the County CLA supports payments due on the Reimbursement Agreement.
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50498112,01
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Credit"), which will provide for the timely payment of principal of and interest on the Bonds
when due; and'
WHEREAS, the Authority's reimbursement obligations to the Bank for advances made
under the Letter of Credit will be evidenced by a Reimbursement [and Security] Agreement dated
as of ' 2005 (the "Reimbursement Agreement"), by and between the Authority and the
Bank; and
WHEREAS, the Bank has requested additional assurances that the Authority's
reimbursement obligations to the Bank for advances made under the Letter of Credit will be paid
when due; and]2
WHEREAS, the County, by Resolution No. _-2005 adopted ,2005, declared
its intent, if certain conditions are met, including, but not limited to, the condition that the City
enter into this Agreement, to enter a contingent loan agreement (the "County CLA") with the
Authority to evidence the County's commitment to make loans to the Authority if and to the
extent necessary to [make payments of the principal of and interest on the Bond]3 [reimburse the
Bankfor advances made under the Letter of Credit]4 when due; and
WHEREAS, the City, by adopted, 2005, declared its intent, if
certain conditions are met, to enter into a contingent loan agreement with the Authority to
evidence the City's commitment to make loans to the Authority if and to the extent necessary to
repay loans made by the County under the County CLA, and approved the form and execution of
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the
parties hereto covenant and agree as follows.
ARTICLE I
Incorporation of Documents: Definitions
Section 1.01. Incorporation of Documents. A copy of the County CLA is attached hereto
as Exhibit A. The Authority and the County, as applicable, shall not amend the County CLA [,
the Reimbursement Agreement]5 or the Bond[s]6 without the prior written consent of the City so
long as this Agreement is in effect.
Section 1.02. Definitions. Unless the context clearly requires otherwise, the following
terms shall have the respective meanings assigned to them in the County CLA.
2 Use if the County CLA supports payments due on the Reimbursement Agreement.
3 Use if the County CLA supports payments due on the Bond.
4 Use if the County CLA supports payments due on the Reimbursement Agreement.
5 Use if the County CLA supports payments due on the Reimbursement Agreement.
6 Use if the County CLA supports payments due on the Reimbursement Agreement.
50498112,01
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ARTICLE II
Loans to the Authority:
Repayment Terms: Interest Rate: Limitation of Liability
Section 2.01. Loans to the County. The City agrees to lend to the Authority the principal
amount equal to the amount sufficient, together with proceeds, if any, from the sale of
condominium units and related parking spaces within the Project ("Sale Proceeds"), to repay
loans made by the County under the County CLA [to pay the principal of and interest on the
Bond when due] 7 [to reimburse the Bank for advances under the Letter of Credit to pay principal
of and/or interest on the Bonds]8 on behalf of the Authority; provided that the City shall not be
required to make any such loans to the Authority until the County has made loans to the Authority
under the County CLA in an aggregate principal amount equal to eleven million eight hundred
sixty seven thousand two hundred ninety two dollars ($11,867,292) plus interest accrued thereon
(the "Threshold Amount"). The Authority agrees to borrow the amounts described above from
the City pursuant to this Agreement for the purpose of meeting its obligations under the County
CLA.
The total amount of funds to be lent by the City pursuant to this Agreement shall not
exceed two million dollars ($2,000,000) plus accrued interest thereon.
Section 2.02. Time of Loan. The loan shall be made at such time, if any, as the
Authority is unable, because of lack of available Sale Proceeds, if any, to repay loans made by
the County under the County CLA (subject to the limitations set forth in Section 2.1 above). The
loan may be made in a series of principal advances.
Section 2.03. Repayment Terms. The loan shall be repaid by the Authority on terms
established at such time as funds are advanced, which terms shall only require the repayment of
principal of such advance and interest thereon from Sale Proceeds in excess of the amounts
needed to pay debt service on the Bond[s, amounts due under the Reimbursement Agreement]9, to
repay loans made by the County under the County CLA, and to reimburse the Authority for any
ordinary and customary expenses incurred by the Authority in connection the development of the
Project (including but not limited to costs associated with marketing the condominium units).
Section 2.04. Interest Rate. The rate of interest borne by each loan hereunder shall be the
rate that represents the documented actual cost (including opportunity cost) to the City of making
the loan to the Authority, but in no event shall the rate of interest on any loan hereunder exceed 8%
per annum. The City may in its discretion charge a lower rate of interest.
Section 2.05. Procedures. The Authority shall give written notice to the City, at least
[_] days prior to any date payment is due [on the Bond] 10 [under the Reimbursement Agreement
to reimburse the Bank for any advance under the Letter of Credit to pay principal of or interest
7 Use if the County CLA supports payments due on the Bond.
S Use if the County CLA supports payments due on the Reimbursement Agreement.
9 Use if the County CLA supports payments due on the Reimbursement Agreement.
10 Use if Agreement supports payments due on the Bonds.
50498112,01
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on the Bonds] 11, of any anticipated deficiency in the amounts available (other than amounts
available under the County CLA) to make such payment and shall confirm not later than five
days prior to the payment date the amount of such deficiency which will, when paid from
proceeds of a loan under the County CLA, cause the aggregate amount of loans made by the
County under the County CLA to exceed the Threshold Amount. The City shall deliver the
amount so specified to the Authority or the County on behalf of the Authority not later than the
business day prior to the day payment is due [on the Bond]12 [under the Reimbursement
Agreement]I3. The Authority or the County on behalf of the Authority shall apply such amount
to the repayment of such amount due under the County CLA.
Section 2.06. Nature of Authority's Obligation. The obligation of the Authority to make
the loan payments from the sources identified herein and to perform and observe the other
obligations on its part contained herein shall be absolute and unconditional, and shall not be
subject to diminution by setoff, counterclaim, abatement or otherwise.
Section 2.07. Nature of City's Obligation. The obligation of the City to advance funds to
the Authority in the amounts, at the times and in the manner described herein shall be absolute
and unconditional, and shall not be subject to diminution by setoff, counterclaim, abatement or
otherwise.
The obligations of the City hereunder shall terminate upon payment in full of the
principal of and interest on the Bond[s]14 and all amounts due to the County under the County
CLA.
ARTICLE III
Remedies Upon Default
Section 3.01. Remedies of City on Default. If the Authority is in default in its repayment
obligations with respect to any loans made to the Authority by the City hereunder (an "Authority
Default") the City may take one or more of the following steps:
(a) If, and only if, the Bond[s]15 [is]16 [are] I? no longer Outstanding[, amounts are no
longer due to the Bank under the Reimbursement Agreement] 18 and amounts are no longer due to
the County under the County CLA, the City may declare the entire principal balance of the loans
(if not then due and payable) to be due and payable immediately, and upon any such declaration
the principal of the loan shall become and be immediately due and payable, together with all
interest accrued thereon to the date of such acceleration, anything in this Agreement to the
contrary notwithstanding;
11 Use if Agreement supports payments due to the Bank under the Reimbursement Agreement.
12 Use if Agreement supports payments due on the Bonds.
13 Use if Agreement supports payments due to the Bank under the Reimbursement Agreement.
14 Use if the County CLA supports payments due on the Reimbursement Agreement.
15 Use if the County CLA supports payments due on the Reimbursement Agreement.
16 Use if the County CLA supports payments due on the Bond.
17 Use if the County CLA supports payments due on the Reimbursement Agreement.
18 Use if the County CLA supports payments due on the Reimbursement Agreement.
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(b) The City may exercise any of its rights under any security document given by the
Authority to the City to secure loans made hereunder; and
(c) The City may proceed to protect and enforce its rights in equity or at law, either in
mandamus or for the specific performance of any covenant or agreement contained herein, or for
the enforcement of any other appropriate legal or equitable remedy, as the City may deem most
effectual to protect and enforce any of its rights or interests hereunder.
The City may waive any Authority Default and may rescind and annul any declaration of
acceleration of any advance(s) and its consequences; but no such waiver, rescission or annulment
shall extend to or affect any subsequent Authority Default or impair any right incident thereto.
Section 3.02. Remedies of Authority on Default. Upon the occurrence of a default by
the City in its obligations to make loans to the Authority hereunder (a "City Default") the
Authority may proceed to protect and enforce its rights in equity or at law, either in mandamus or
for the specific performance of any covenant or agreement contained herein, or for the
enforcement of any other appropriate legal or equitable remedy, as the Authority may deem most
effectual to protect and enforce any of its rights or interests hereunder.
Section 3.03. No Remedy Exclusive. No remedy conferred upon or reserved to either
party by this Agreement is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity or by statute,
and either party hereto shall be free to pursue, at the same time, each and every remedy, at law or
in equity, which it may have under this Agreement, or otherwise.
Section 3.04. No hnplied Waiver. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time and as often as
may be deemed expedient. For the exercise of any remedy, it shall not be necessary to give any
notice, other than such notice as may be expressly required herein.
Section 3.05. Agreement to Pay Attorneys' Fees and Expenses. If a default arises under
any of the provisions of this Agreement and either party hereto should employ attorneys or incur
other expenses for the collection of amounts due under this Agreement or the enforcement of
performance or observance of any obligation or agreement on the part of the other party
contained in this Agreement, on demand therefor, the nonprevailing party shall payor reimburse
the prevailing party for the reasonable fees of such attorneys and such other expenses so
incurred.
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ARTICLE IV
Miscellaneous
Section 4.01. Governing Law: Venue. This Agreement is governed by and shall be
construed in accordance with the substantive laws of the State of Washington and shall be
liberally construed so as to carry out the purposes hereof. Except as otherwise required by
applicable law, any action under this Agreement shall be brought in the Superior Court of the
State of Washington in and for Kitsap County and/or in the United States District Court for the
Western District of Washington.
Section 4.02. Notices. Except as otherwise provided herein, all notices, consents or
other communications required hereunder shall be in writing and shall be sufficiently given if
addressed and mailed by first-class, certified or registered mail, postage prepaid and return
receipt requested, as follows:
To the City:
[Insert Address]
To the Authority:
Kitsap County Consolidated Housing Authority
9307 Bayshore Drive NW
Silverdale, Washington 98383
Attention: Executive Director
To the County:
Kitsap County
614 Division Street
Port Orchard, Washington 98366
Attention:
The City, the Authority or the County may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates, requests or other
communications shall be sent. Notices shall be deemed served upon deposit of such notices in
the United States mail in the manner provided above.
Section 4.03. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the City, the Authority and the County and their successors. This Agreement may
not be assigned.
Section 4.04. Severability. In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
50498112.ol
-B-6-
~~
Section-4.05. Amendments. This Agreement may not be effectively amended, changed,
modified or altered, except by an instrument in writing duly executed by the City, the Authority
and the County (or ilieir successors in title).
Section 4.06. Waiver of Breach. No waiver of any breach of any covenant or agreement
contained herein shall operate as a waiver of any subsequent breach of the same covenant or
agreement or as a waiver of any breach of any other covenant or agreement, and in case of a
breach by either party of any covenant, agreement or undertaking, the nondefaulting party may
nevertheless accept from the other any payment or payments or performance hereunder without
in any way waiving its right to exercise any of its rights and remedies provided for herein or
otherwise with respect to any such default or defaults that were in existence at the time such
payment or payments or performance were accepted by it.
Section 4.07. No Rights Created in Third Parties. The terms of this Agreement are not
intended to establish nor to create any rights in any persons or entities other than the City, the
Authority and the County.
Section 4.08. Time of Essence. Time and all terms and conditions shall be of the essence
of this Agreement.
Section 4.09. Termination of Agreement. This Agreement shall terminate upon payment
in full of all principal of and interest on the Bond[s]19 (or defeasance thereof), [payment infull of
the Authority's repayment obligation to the Bank under the Reimbursement Agreement for
advances under the Letter of Credit to pay principal of or interest on the Bonds,]2o payment in
full of the Authority's repayment obligation to the County under the County CLA and payment in
full of the Authority's repayment obligation, if any, to the City, from the sources described herein.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND
CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER W ASHINGTON LAW.
Section 4.10. Execution in Counterparts. This Agreement may be executed In
counterparts.
19 Use if the County CLA supports payments due on the Reimbursement Agreement.
20 Use if the County CLA supports payments due on the Reimbursement Agreement.
50498112.Q1
- B-7-
<65'
IN WITNESS WHEREOF, the City, the Authority and the County have caused this
Agreement to be executed in their respective names by their duly authorized officers, and have
caused this Agreement to be dated as of date set forth on page 1 hereof.
CITY OF BREMERTON, WASHINGTON
By:
Name:
Title:
KITSAPCOUNTY, WASHINGTON
By
Title: Chair, Board of County Commissioners
KITSAP COUNTY CONSOLIDATED
HOUSING AUTHORITY
By
Executive Director
50498112,01
-B-8-
g~
EXHIBIT A
County Contingent Loan Agreement
50498112,01
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DATE SUBMITTED: 1-19-05
BILL # Os--03/-
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
1A
........................................................................................
SUBJECT: Resolution authorizing transfer
of$150,000 from the General Fund to the
Abatement Revolving Fund
R-e50/IA-hCn /Jo. ,;{ Cj 5" ~
Committee Meeting Date:
COUNCIL MEETING Date:
Department:
Presenter:
Phone:
1-26-05
2-2-05
Financial Services
Laura Lyon
473-5722
SUMMARY: The Abatement Revolving Fund has previously undertaken a line of credit to finance costs
associated with abatement of unfit dwellings, buildings, structures, and premises. The current line of credit
expires on January 31,2005 and the principal plus accrued interest thereon (total of $223,448.28) is due at that
time. The costs currently fmanced with this line of credit relate to the Sesko Properties Nuisance Abatement
claim which is scheduled to go to court on January 21,2005. This claim will not be resolved in sufficient time
to provide funds for repayment of the debt obligation per the terms of the loan agreement. The Sesko claim
amount is $313,389.09 (including attorney fees). The exact amount allowed and the final payment of said
claim cannot be determined at this time. A transfer of$150,000 to the Abatement Revolving Fund from the
General Fund is sufficient (in combination with current funds on hand in the Abatement Revolving Fund) to
provide for the payment of the debt obligation plus provide sufficient ongoing working capital for the
Abatement Fund. Although the 2005 Budget Documents contemplated a new line of credit being obtained, it
is the opinion of the Director of Financial Services that these costs are not good candidates for debt financing
given the uncertainty of collection expectations on these types of claims - both in timing and in amount. A
transfer from the General Fund of $150,000 to the Abatement Revolving Fund is therefore proposed with all
future rights and claims to the Sesko Abatement similarly transferred to the General Fund in consideration of
the transfer being made.
ATTACHMENTS: Proposed Resolution
FISCAL IMPACTS (Include Budgeted Amount): Immediate impact is $150,000 expenditure from the
General Fund that was not contemplated in the 2005 Budget as adopted. The preliminary unaudited ending
fund balance for the General Fund as of December 31, 2004 (which becomes the beginning fund balance for
the 2005 year) is higher than the 2004 budget or 2005 budget contemplated. There is sufficient capacity to
accommodate this proposed increased expenditure. The 2005 Budget will require amendment to incorporate
this, which will be done at a later date in combination with other required budget adjustments.
RECOMMENDED MOTION: Move to pass Re olution # -t15J-authorizing the transfer of
$150,000 from the General Fund to the Abatement Revolving Fund.
I CONSENT AGENDA 0 I
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
COUNCIL ACTION: D Approve D Deny D Table
90
D Continue D No Action
RESOLUTION NO. .1 q S;;L
A RESOLUTION of the City Council of the City of
Bremerton, Washington authorizing the transfer of $150,000 from
the General Fund to the Abatement Revolving Fund and placing all
future rights and claims associated with the Sesko Properties
Nuisance Abatement in the General Fund.
WHEREAS, the Abatement Revolving Fund previously obtained a Line of Credit
from Bank of America, N.A., Seattle, Washington for usage in financing costs related to the
enforcement of Ordinance No. 4418 and chapter 35.80 RCW concerning the abatement of unfit
dwellings, buildings, structures and premise; and
WHEREAS, the Line of Credit has a principal balance due of$217,363 which is
payable with all accrued interest thereon by January 31,2005; and
WHEREAS, the current Line of Credit balance is attributable to financing costs
associated with the Sesko Properties Nuisance Abatement which is currently not concluded; and
WHEREAS, because the Sesko Abatement Claim will not be concluded prior to
January 31,2005, the Abatement Revolving Fund will not have sufficient funds to pay the debt
obligation when due and payable; and
WHEREAS, it is the opinion ofthe Director of Financial Services for the City of
Bremerton that the continued use of debt to finance the costs ofthe Abatement Revolving Fund
is not in the financial best interests of the City; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Finance Officer is hereby authorized and directed to transfer
$150,000 from the General Fund to the Abatement Revolving Fund and that all future rights and
claims associated with the Sesko Properties Nuisance Abatement are hereby transferred to the
General Fund.
SECTION 2. The 2005 Budget for the City of Bremerton will be adjusted at a
later date to incorporate the financial effects of this resolution.
SECTION 3. Severability. If anyone or more sections, subsections, or
sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not
affect the validity of the remaining portion of this Resolution and the same shall remain in full
force and effect.
1
q,
Abatement Revolving Fund
SECTION 4. Effective Date. This Resolution shall take effect and be in force
immediately upon its passage.
day of
PASSED by the City Council of the City of Bremerton, Washington this _
,2005.
DAREN NYGREN, Council President
APPROVED AS TO FORM:
ATTEST:
ROGER A. LUBOVICH, City Attorney
PAULA JOHNSTON, City Clerk
R:\LEGAL\Resolutions\Finance\Abatement transfer,doc
2
1;L
Abatement Revolving Fund
DATE SUBMITTED: 1-19-05
BILL # 05"- 037
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
7B
......................m.....................................................................
SUBJECT: Resolution authorizing Committee Meeting Date: 1-26-05
commencement of Cable Franchise Renewal COUNCIL MEETING Date: 2-2-05
Proceedings with Comcast pursuant to the Department: City Attorney's Office
1984 Cable Act Presenter: Brett Vinson
Res 0 1l-tf1v'y\ M>, ,J 1 ~3 Phone: 473-2345
SUMMARY: Section 626(a) ofthe Cable Act provides that, during the six-month period which
begins with the 36 months before cable franchise expiration (August 2007), the City shall, at the
request of the cable operator (Comcast), commence proceedings which afford the public in the City of
Bremerton appropriate notice and participation, for the purpose of identifying the future cable-related
community needs and interests and reviewing the performance ofthe cable operator under the current
franchise. On September 22, 2004 Comcast formally requested that the City commence formal
renewal proceedings but also indicated its desire to reach a mutually satisfactory franchise renewal
agreement with the City through informal negotiations as per Section 626(h) of the Cable Act.
ATTACHMENTS: Proposed Resolution, staffmemo and Comcast letter dated Sept. 22, 2004
FISCAL IMP ACTS (Include Budgeted Amount): No direct fiscal impact although failure to
commence formal franchise renewal proceedings could jeopardize the City's interests in future
franchise negotiations.
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DI~CTOR:
MAYOR:
.
[ CONSENT AGENDA D I
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
Move to pass Resolution # ;J. 1 5"3 authorizing commencement of cable franchise renewal
proceedings in accordance with provisions of the 1984 Cable Act and written requests from
Comcast.
COUNCIL ACTION: 0 Approve 0 Deny 0 Table
93
o Continue 0 No Action
RESOLUTION NO. ~ 'i53
A RESOLUTION of the City Council of the City of
Bremerton, Washington, authorizing commencement of cable
franchise contract renewal proceedings in accordance with the
'provisions of the 1984 Cable Act and written requests from
Com cast.
WHEREAS, Comcast of Washington IV, Inc. currently provides cable services in
the City of Bremerton pursuant to a franchise agreement authorized by Ordinance No. 4598
which expires on August 21,2007; and
WHEREAS, Comcast of Washington IV, Inc. is wholly owned by Comcast Cable
Communications Holdings, Inc. and are together also known as Comcast; and
WHEREAS, Section 626 of the Cable Communications Policy Act of 1984
(Cable Act) 47 USC S546, establishes both formal and informal procedures that govern the
franchise renewal process; and
WHEREAS, the City of Bremerton is the franchising authority for cable services
within its city limits; and
WHEREAS, Section 626(a) of the Cable Act provides that, during the six-month
period which begins with the 36 months before franchise expiration, the franchising authority
shall, at the request of the cable operator, commence proceedings which afford the public in the
franchise area appropriate notice and participation, for the purpose of identifying the future
cable-related community needs and interests and reviewing the performance of the cable operator
under the franchise during the then current franchise term; and
WHEREAS, in a letter (Exhibit A) to the City of Bremerton dated September 22,
2004, Comcast formally requested that the City commence formal renewal proceedings in
accordance with the requirements of Section 626( a-g) of the Cable Act but also indicated its
desire to reach a mutually satisfactory franchise renewal agreement with the City through
informal negotiations as per Section 626 (h) of the Cable Act; NOW THEREFORE,
.
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY RESOLVE AS FOLLOWS:
1
crtf
Cable Franchise Renewal Proceedings
SECTION 1. Comcast's September 22,2004, letter formally requesting the
commencement of renewal proceedings under Section 626 of the Cable Act was submitted in a
timely manner and is hereby acknowledged.
SECTION 2. The Mayor or his designated representative is authorized to
implement the necessary processes and procedures to enable the City to comply with all of its
obligations under Section 626 of the Cable Act.
SECTION 3. The City hereby commences proceedings to afford the public in the
franchise areas appropriate notice and participation for the purpose of identifYing future cable-
related community needs and interests, and reviewing the performance of the cable operators
under the franchises during the current franchise term.
SECTION 4. Pursuant to the requests by Comcast the Mayor or his designated
representative is authorized to study the feasibility of an informal franchise renewal process
pursuant to Section 626(h) of the Cable Act, while reserving the City's right to implement the
formal processes outlined by Section 626(a-g) of the Cable Act.
SECTION 5. Severability. If anyone or more sections, subsections, or
sentences of this Resolution are held to be unconstitutional or invalid, such decision shall not
affect the validity of the remaining portion of this Resolution and the same shall remain in full
force and effect.
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
,2005.
DAREN NYGREN, Council President
APPROVED AS TO FORM:
ATTEST:
ROGER A. LUBOVICH, City Attorney
PAULA JOHNSTON, City Clerk
R:\LEGAL\Departments-General\Administrative Svcs\cable franchise renewal resolution. DOC
2
qs- Cable Franchise Renewal Proceedings
@omcast~
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Comcast Cable Communications, Inc,
440 Yauger Way SW
Olympia, WA 98502-11 E C E IV E j
SEP 2 7 2004
OFFICE OF THE
CITY CLERK
September 22, 2004
Ms. Paula Johnston
City Clerk
City ofBremerton
239 - 4th Street
Bremerton, WA 98337
Subject:
FRANCHISE RENEWAL
Dear Ms. Johnston:
We at Comcast appreciate the opportunity to serve the citizens ofBremerton. It is our credo that we
will be the company to look to first for the communications products and services that connect
people to what's important in their lives. In living our credo, we look forward to providing
broadband services to our customers in Bremerton for many years to come. Therefore, we are
taking this step to ensure the renewal of our franchise with you.
The Cable Communications Policy Act of 1984 ("the 1984 Cable Act") encourages franchisors and
cable operators to reach renewal agreements at any time through an informal process of discussion.
However, Section 626 of the 1984 Cable Act also provides for commencement ofa formal renewal
procedure. To preserve our statutory rights to this formal procedure, this letter is our official notice
,to ,yo.u, invoking that provision.
This letter is not intended to introduce a new formality into our discussions, nor is that the intention
of the 1984 Cable Act. In fact, we prefer to reach a mutually satisfactory agreement through
mformal negotiations, thus making many ofthe 1984 Cable Act's formal procedures unnecessary.
I will be happy to discuss this matter with you, or provide any additional information that you may
require. I look forward to meeting with you in the near future and to continuing
a relationship that, we believe, benefits both the community and the residents of Bremerton.
Sincerely,
/~, /)'"!/
l ;(.{ ..,'
-~~'Finl~i-/~
Director, Franchising and Government Affairs
cc: Brad Dusto, Mountain Division President
Deborah Luppold, Mountain Division Vice President of Government Affairs
Sheila Willanf;'Senior Vice President of Government Affairs
EXHIBIT A
q{"
Office of the City Attorney
Roger A. Lubovich, City Attorney
.elllrlldulI
To: City Council
From: Brett C. Vinson, Assistant City Attorney /!;t/
Re: Cable Franchise Renewal Resolution
lale: January 19, 2005
Comcast currently has a Franchise with the City of Bremerton to provide cable related services.
The Franchise expires in August 2007. Federal law (Section 626(a) of the Cable Act), requires
negotiations to commence on a new franchise 36 months before the expiration date ofthe
Franchise.
Pursuant to this requirement, Comcast submitted a request for the renewal of the Franchise on
September 22,2004. The City must commence renewal proceedings, including public
participation to identify the future cable-related community needs and interests, and Comcast's
performance, within six (6) months after the receipt of Comcast's request to commence renewal
negotiations. This resolution is in accordance with the provisions of the Cable Act necessary to
commence renewal negotiations and preserve statutory renewal rights and procedures.
11
@omcast~
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Comcast Cable Communications. Inc,
440 Yauger Way SW
O~mpia, WA 98502-11 E C E IV E [
SEP 2 7 2004
OFFICE OF THE
CITY CLERK
September 22, 2004
Ms. Paula Johnston
City Clerk
City ofBremerton
239 - 4th Street
Bremerton, W A 98337
Subject:
FRANCHISE RENEWAL
Dear Ms. Johnston:
We at Comcast appreciate the opportunity to serve the citizens ofBremerton. It is our credo that we
will be the company to look to first for the communications products and services that connect
people to what's important in their lives. In living our credo, we look forward to providing
broadband services to our customers in Bremerton for many years to come. Therefore, we are
taking this step to ensure the renewal of our franchise with you.
The Cable Communications Policy Act of 1984 ("the 1984 Cable Act") encourages franchisors and
cable operators to reach renewal agreements at any time through an informal process of discussion.
However, Section 626 of the 1984 Cable Act also provides for commencement ofa formal renewal
procedure. To preserve our statutory rights to this formal procedure, this letter is our official notice
t.o you,inv?king that provision.
This lett~r is not intended to introduce a new formality into our discussions, nor is that the intention
of the 1984 Cable Act. In fact, we prefer to reach a mutually satisfactory agreement through
Informal negotiations, thus making many of the 1984 Cable Act's formal procedures unnecessary.
I will be happy to discuss this matter with you, or provide any additional information that you may
require. I look forward to meeting with you in the near future and to continuing
a relationship that, we believe, benefits both the community and the residents of Bremerton.
Sincerely,
,-::.::., /i/.~
~-::::-Finld:~
Director, Franchising and Government Affairs
cc: Brad Dusto, Mountain Division President
Deborah Luppold, Mountain Division Vice President of Government Affairs
Sheila Will.anI;'Senior Vice President of Government Affairs
qg
DATE SUBMITTED: 1-19-05
BILL # bS-,,; 0:5 f
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
/G
.......................am...................s.............................................ml
SUBJECT: Ordinance amending Chapter
3.08 Claims Fund of the Bremerton
Municipal Code relating to issuance of
warrants or checks before City Council
approval subject to certain conditions
Committee Meeting Date: 1-26-05
COUNCIL MEETING Date: 2-2-05
Department: Financial Services
Presenter: Laura Lyon
Phone: 473-5722
SUMMARY: Frequently, throughout the normal course of paying bills, there are occasions where
payment of claims does not coincide with City Council approval. Electronic debt service payments,
initiated by the City or a fiscal agent, may have due dates that do not coincide with council meetings
creating a delay in posting to the financial system Pre-approval of claim payments would enhance
the City's relationship with its vendors, help to meet legal deadlines and to comply with terms of
ongoing contracts more effectively. RCW 42.24.180 authorizes cities to expedite the payment of
claims before City Council approval subject to the City's meeting certain conditions and safeguards
provided in RCW 42.24.180.
ATTACHMENTS: Proposed Ordinance AlP. '1131
FISCAL IMPACTS (Include Budgeted Amount): There is no financial impact from passage of the
ordinance as proposed.
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
APPROV ALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
.1 CONSENT AGENDA 0 I
Move to Pass Ordinance # 4tj31 amending Chapter 3.08 entitled Claims Fund of the
Bremerton Municipal Code authorizing issuance of warrants or checks to pay claims before
approval by the City Council subject to certain conditions pursuant to RCW 42.24.180.
COUNCIL ACTION: D Approve D Deny D Table
D Continue D No Action
<11
ORDINANCE NO. ~
AN ORDINANCE of the City Council of the City of
Bremerton, Washington, authorizing issuance of warrants or
checks to pay claims before approval by the City Council, subject
to certain conditions pursuant to RCW 42.24.180, and adding a
new Section 3.08.040, entitled "Payment of Claims" to Chapter
3.08 Claims Fund ofthe Bremerton Municipal Code.
WHEREAS, RCW 42.24.180 authorizes cities to expedite the payment of
claims before the city council has acted to approve said claims, subject to the city's
meeting certain conditions and safeguards provided in RCW 42.24.180; and
WHEREAS, the City Council has adopted contracting, hiring, purchasing, and
disbursing policies that implement effective internal control; and
WHEREAS, the City of Bremerton may realize certain efficiencies and cost
savings as a result of expediting the payment of claims including, but not limited to, discounts on
the payment of goods and avoidance of interest charges; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. A new section, Section 3.08.040, entitled "Payment of claims" is
hereby added to Chapter 3.08 of the Bremerton Municipal Code to read as follows:
3.08.040 PAYMENT OF CLAIMS.
(a) Claims presented to the City for the payment of materials furnished or services
rendered to the City may be paid by warrant or check prior to City Council approval if the
following conditions are met:
(1) The Mayor, the Mayor Pro-Tern, the Director of Financial Services, and
any designee authorized to sign the checks or warrants, shall each furnish an official bond for the
faithful discharge of his or her duties in an amount not less than fifty thousand dollars ($50,000).
A blanket fidelity bond applicable to such officials and employees in addition to others in an
amount not less than fifty thousand dollars ($50,000) shall be sufficient to meet this requirement;
(2) All claims paid prior to Council approval shall require the approval ofthe
Director of Financial Services or his or her designee.
(3) The City Council shall review all documentation supporting any claim
paid and for approval of all checks or warrants issued in payment of any claim at its next
regularly scheduled public meeting, subject to scheduling, but in no event, later than one month
from issuance; and
(4) If, upon review, the City Council disapproves a claim, the auditing officer,
Mayor, Mayor Pro-Tern, Director of Financial Services, and any person signing the check shall
jointly cause the disapproved claim to be recognized as a receivable of the City and shall direct
1
Warrants and Checks
100
the financial services department to pursue collection diligently until the amounts disapproved
are collected or until the City Council is satisfied and approves the claim.
(5) Notwithstanding the fact that all ofthe above conditions are met, the City
Council may stipulate that certain kinds or amounts of claims shall not be paid before the City
Council has reviewed the supporting documentation and approve the issue of checks or warrants
in payment of those claims.
SECTION 2. Severability. If anyone or more sections, subsections, or
sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not
affect the validity ofthe remaining portion ofthis ordinance and the same shall remain in full
force and effect.
SECTION 3. Effective Date. This ordinance shall take effect and be in force ten
(10) days from and after its passage, approval and publication as provided by law.
PASSED by the City Council the
day of
,2005
DAREN NYGREN, Council President
Approved this
day of
, 2005
CARY BOZEMAN, Mayor
ATTEST:
APPROVED AS TO FORM:
P AULA JOHNSTON, City Clerk
ROGER A. LUBOVICH, City Attorney
PUBLISHED the
EFFECTIVE the
ORDINANCE NO.
day of
day of
, 2005
,2005
2
/01
Warrants and Checks