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HomeMy WebLinkAbout5329Contract Number: Vendor: Sub�ect: Department: File Class: Begin Date: End Date: Review Date: Vault Date: 5329 KITSAP PUBLIC FACILITIES DISTRICT ILA - Funding for Expansion of Conference Center Public Works LEG 12-1 12/9/2013 �iZ�AiII��i 9/1/2015 Comments : INTERLOCAL AGREEMENT REGARDING FUNDING FOR EXPANSION OF THE I�ITSAP REGIONAL CONFERENCE CENTER RELATED DOCUMENTS - INTERLOCAL AGREEMENT REGARDING FUND/NG, DEVELOPMENT AND OPERATION OF THE KITSAP REG/ONAL CONFERENCE CENTER (MARCH 25, 2002� - FIRST AMENDED & RESTATED INTERLOCAL AGREEMENT REGARD/NG FUNDING, DEVELOPMENT AND OPER,9TION OF THE KITSAP REGIONAL CONFER6NCE CENTER �JULY 28, 2OD3� This Interlocal Agreement ("Agreement") is entered mto as of December 9, 2013, between the City of Bremerton ("the City"), a first class charter crty, duly orgamzed and operatmg pursuant to the Constitution and laws of the State of Washmgton, and the Krtsap Public Facilrties District ("the KPFD"), a mumcipal corporation organized and operatmg under the laws of the State of Washington, as established by Kitsap County, pursuant to Chapter 36 100 RCW RECITALS WHEREAS, the County Commissioners established the PFD pursuant to Chapter 36 100 RCW ("the Chapter") to perform any function or combmation of functions authorized by that chapter, and WHEREAS, the KPFD is authorized by RCW 36 100 030 to acquire, construct, own, remodel, mamtam, equip, re-equip, repair, and operate "regional centers," as defined in RCW 35 57 020, and WHEREAS, RCW 82 14 390 authorized the KPFD to rmpose a 0 033% sales and use tax (the "Sales Tax"), which operates to shift a share of the State's sales and use tax revenues to public facilrties districts at no addrtional cost to taxpayers, and WHEREAS, the KPFD has imposed the Sales Tax authorized by RCW 82 14 390, and WHEREAS, the Sales Tax may be applied to acquire, remodel, finance, and operate a regional special events center as defined in RCW 35 57 020, and WHEREAS, the KPFD and the Crty m 2002 decided to cooperate m establishing a "regional center" as defined m RCW 35 57 020, and WHEREAS, the KPFD and the City implemented their decision to establish this regional center by entering into that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 ("the Original ILA") which was amended and restated on July 28, 2003 ("the First Amended & Restated ILA") ; and WHEREAS, the KPFD's fundmg of the improvements as set forth m the Origmal ILA and the First Amended & Restated ILA were part of a larger pro�ect as defined as the Pro�ect in the Original ILA and the First Amended & Restated ILA, and � WHEREAS, the City completed the improvements to the Krtsap Regional Conference Center called for in the Original ILA and the First Amended & Restated ILA and has operated those improvements consistent wrth the ob�echves of the Original ILA and the First Amended & Restated ILA, and WHEREAS, the Crty proposes to expand the Krtsap Regional Conference Center from rts current 10,000 SF size by leasmg from Kitsap Transit, a Washmgton mumcipal corporation an addrtiona16750 SF (more or less), on the third floor of the existing Transit Building at Bremerton Harborside at an estimated cost of $1,100,000 ("the Addrtional Improvements"), and WHEREAS, the KPFD has collected more Sales Tax than had been originally pro�ected when the Sales Tax was imposed as authorized by RCW 82 14 390, and WHEREAS, the KPFD is willing to provide addrtional funding for the construction of some portion of the Additional Improvements to Regional Conference Center, and WHEREAS, the Addrtional Improvements to the Krtsap Regional Conference Center are wrthm the scope of the parties' Origmal ILA and the First Amended & Restated ILA and consistent wrth the purposes of the Chapter, NOW, THEREFORE, m consideration of the mutual covenants heremafter contamed, the parties agree as follows AGREEMENT 1 Purnose of Agreement The KPFD and the City axe entering into this Agreement pursuant to RCVV 36 100 030 and RCW 39 34 030 The purpose of this Agreement is to set forth the rights and responsibilrties of each of the parties with regard to the fundmg, development, and operation of the Additional Improvements to the Krtsap Regional Conference Center This Agreement supplements, but does not replace, that certain Interlocal Agreement Regardmg Funding, Development, and Operation of the Krtsap Regional Conference Center, dated March 25, 2002 ("the Original ILA") which was amended and restated on July 28, 2003 ("the First Amended & Restated ILA"), provided, however, that in the event a specific provision of this Agreement conflicts wrth the Original ILA or the First Amended & Restated ILA, the terms of this Agreement shall control 2 AdditionalImprovements. The KPFD and the City have agreed that the Addrtional Improvements are important to the development and the conhnued vitality and use of the Krtsap Regional Conference Center KPFD and the County agree that the City shall be responsible for the development, design, calling for bids, and construction of Additional Improvements to the Kitsap Regional Conference Center The KPFD shall provide partial funding of the Addrtional Improvements, as set forth -2- herein 3 Fundin�. A Amount of KPFD Fundmg The KPFD and the City are prepared to fund Additional Improvements with a current estimated cost of approximately $1,100,000 (One- Million and One Hundred Thousand Dollars) Of this cost, the KPFD agrees to contribute $420,000 (Four Hundred Twenty Thousand Dollars) to the City, based on the followmg requirements (1) the execution of The Transit Harborside Building Lease Agreement with Krtsap Transrt for approximately 6,750 SF on the Third Floor, (2) the City having commrtments for all of the other fundmg for the Additional Improvements, (3) the City entering into a construction contract and (4) the City obtaimng permrts required to begin construction The KPFD funds shall be transferred to the 96976 KCC Facility Pro�ect Fund wrth the Krtsap County Audrtor for disbursement as set forth below B Timing & Method of Payment The City shall submit monthly progress payment invoices for actual expenses incurred for review by the KPFD, which shall then reimburse the City of a percentage of completion basis until such time as the KPFD funds in account 96976 are fully disbursed, except as otherwise provided herein C Potential Reduction in Funding In the event the cost of the Addrtional Improvements exceeds the Crty's current estimate of the cost, the City may elect to erther fund the additional expense of the Additional Improvements, or elect not to fund and construct any or all of the Additional Improvements In the event the City elects not to fund or construct the Additional Improvements, then this Agreement shall be terminated and the KPFD has no obligation to provide any funds to the City In the event the City elects not to fund or construct � all of the Additional Improvements and such reduction exceeds ten percent of the Crty's current estimate of the cost, the KPFD's obligation to fund the Addrtional Improvements shall be reduced pro rata based upon the original estimated cost of constructmg the Additional Improvements The KPFD may then allocate such uncommitted funds to any of its other obligations, pro�ects, or expenses that rt, m rts sole discretion, decides to fund 4 I�ead A�encv Responsibilities. The City, on behalf of the KPFD and itself, will (i) be the agency with the primary responsibility for the development of the Additional Improvements to the Kitsap Regional Conference Center, (ii) fund (in con�unchon wrth the KPFD), acquire, design, construct, own (sub�ect to the rights of the Kitsap Transit in the Transit Harborside Buildmg Lease Agreement wrth the Crty for the improved premises), operate, and mamtam the Addrtional Improvements to the Krtsap Regional Conference Center, and (ui) otherwise admmister the development, operation, and mamtenance of the Krtsap Regional Conference Center for the benefit of rtself, the KPFD, and the residents of the County 5 Reporting Requirements. The City shall keep the KPFD mformed as to the status of the design, bidding, construction, fundmg, and completion of each ma�or component of the Additional Improvements As they are developed, the City shall provide prelimmary schemahc and design development -3- documents, drawmgs, plans, and specifications to the KPFD for its review and comment When the final design documents, drawmgs, plans, and specifications for each of the Addrtional Improvements are completed, such design documents shall be submitted to the KPFD for its review and comment For purposes of this Agreement, this requirement to provide prelimmary and final design documents, drawmgs, plans, and specifications for each of the Additional Improvements is deemed satisfied upon execution of the this Agreement The KPFD shall also be notified when the City has awarded any bid for the construction of one or all of the Addrtional Improvements, and, further, shall provide to the KPFD a copy of each contract entered mto by the City with regard to each ma�or component of the Addrtional Improvements Once construction of each ma�or component of the Additional Improvements is under way, the City shall provide the KPFD wrth a monthly status report in a mutually acceptable form regardmg each ma�or component of the Addrtional Improvements At a mmimum, the monthly status report form shall include information regardmg current cost pro�ections and costs mcurred per budget lme rtem � This monthly status report shall be due by the 15 of each month and shall reflect costs mcurred m the previous month 6 Aduninistrator This Agreement does not establish or create a separate legal entity or a �omt board The Crty shall be the administrator (wrthin the meaning of RCW 39 34 030(4)) of this cooperative undertakmg for the provision and operation of the Additional Improvements to the Kitsap Regional Conference Center mcludmg any of the following acquiring, designmg, constructmg, ownmg (sub�ect to the rights of the Krtsap Transrt in the Transrt Harborside Buildmg Lease Agreement with the Crty for the improved premises), remodeling, maintammg, equipping, re- equippmg, repairing, financing, managing, scheduling, and operatmg the Addrtional Improvements as provided for in this Agreement 7 Non-Discrimination. \`, � The City shall admmister the provision and operation of the Krtsap Regional Conference Center, mcluding the Addrtional Improvements, m such a manner as to provide residents of the County wrth access to the Krtsap Regional Conference Center wrthout regard to their place of residence The County shall not discriminate with respect to fees charged, condrtions for use, attendance, or other access to the Krtsap Regional Conference Center on the basis of such residency ��� 8 Insurance. The City agrees to acquire and maintam msurance on the Krtsap Regional Conference Center, mcludmg the Additional Improvements, against risks, accidents, or casualties, at least to the extent that msurance is usually carried by public entities operating like properties and at least to the extent that such policies are available at reasonable cost, to protect the Krtsap Regional Conference Center agamst loss In the event of any loss or damage, the Crty will promptly apply the proceeds of any msurance policy to the extent necessary to repair or replace (or cause the repair or replacement o� the damaged portion of the msured property to the extent economically viable Insurance described m this Paragraph shall be m the form of policies or contracts for msurance wrth insurers of good standmg and shall be payable to the City, or m the form of self- -4- insurance by the City The City shall establish such funds or reserves that rt deems are necessary to provide for rts share of any such self-msurance 9 Environmental Law Compliance. The Crty shall be responsible for complymg wrth all environmental laws applicable to construction of the Additional Improvements at the Kitsap Regional Conference Center This mcludes, but is not limrted to, Crty regulations, the State Environmental Policy Act ("SEPA"), CERCLA (42 U S C§ 9603), MTCA (RCW 70 105(D)), and the Clean Water Act (33 U S C§ 1321) To the extent required by WAC 197-11-944, the County shall be the nominal lead agency, whereby the City shall be responsible for complymg with the duties of the lead agency under all applicable SEPA rules 10 M�intenance, Oneration, and Legal Comnliance. The City shall manage, operate, and mamtain the Kitsap Reg2onal Conference Center including the Addrtional Improvements, at all times in a safe and clean manner The City shall provide (erther directly or by contract) all management, supervision, personnel, materials, equipment, services, and supplies necessary to operate, maintam, and repair the Addrtional Improvements to the Kitsap Regional Conference Center (sub�ect to the rights and obligations of the Krtsap Transrt m the Transrt Harborside Building Lease Agreement wrth the City for the improved premises) and shall take all reasonable precautions to prevent damage, m�ury, or loss by reason of or related to the construction, operation, and mamtenance of the Addrtional Improvements to the Krtsap Regional Conference Center to any person or property The City shall comply wrth all applicable laws and ordinances in constructmg, operatmg, and maintaming the Additional Improvements to the Kitsap Regional Conference Center The Crty shall undertake all modifications to the Additional Improvements to the Kitsap Regional Conference Center required to comply wrth all applicable laws, regulations, �udgments, and orders 11 Appointment as Agent. Except with respect to the express undertakmgs of the KPFD in this Agreement, the KPFD hereby appomts the City as rts agent wrth respect to the provision, construction, and operation of the Krtsap Regional Conference Center, includmg the Addrtional Improvements, but not otherwise, with full power and authority in connection therewith to make all management and operational decisions and take all actions necessary to carry out this �oint undertakmg wrthout further need or requirement to consult with or obtain approval from the KPFD in connection with matters relating to the Krtsap Regional Conference Center 12 City Indemnity Obligations. The City shall defend, mdemmfy, and hold the KPFD, and its respective elected officials, officers, employees, and agents ("KPFD Indemmtees") harmless from all claims, regardless of the nature of the claim, arising directly or mdirectly from the planning, permitting, construction, maintenance, and operation of the Krtsap Regional Conference Center, includmg the Addrtional Improvements, except for claims arismg from the sole negligence of any KPFD Indemmtee In the case of concurrent negligence of the City and a KPFD Indemnrtee, each party shall, unless -5- otherwise agreed, defend itself and hold the other party harmless from their proportionate shaze of the resultmg damages This mdemmty and hold harmless obligation shall extend to all claims of whatsoever kmd and nature It shall include attorneys' fees, expert witness fees, court costs, arbitration costs, administrative fines and penalties, and any other direct expense that is a direct consequence of a breach of any provision of this Agreement or any negligent act or failure to act It shall mclude the duty to promptly accept tender of defense and provide defense to the KPFD Indemnrtees 13 KPFD Indemnitv Obligations. The KPFD shall defend, mdemmfy, and hold the City, and rts respective elected officials, officers, employees, and agents ("Crty Indemmtees") harmless from all claims, regardless of the nature of the claim, arismg directly or mdirectly from any breach by the KPFD of this Agreement or any negligent acts of the KPFD except for claims arismg from the sole negligence of a City Indemnrtee, for which the KPFD is solely responsible This mdemmty and hold harmless obligation shall extend to all claims of whatsoever kind and nature It shall include attorneys' fees, expert wrtness fees, court costs, arbrtration costs, administrative fines and penalties, and any other direct expense that is a direct consequence of a breach of any provision of this Agreement or any negligent act or failure to act It shall mclude the duty to promptly accept tender of defense and provide defense to the City Indemnitees 14 Interlocal Cooperation Act Provisions. The parties acknowledge that they have entered mto this Agreement pursuant to the express authority granted to them by RCW 36 100 030(2) and RCW 36 O1 010, pursuant to RCW 39 34 100, the powers and authority conferred by the Interlocal Cooperation Act (Chapter 39 34 RCW) are supplemental to powers or authorrty conferred by RCW 36 O1 O10 and RCW 36 100 030(2), and nothmg contained m the Interlocal Cooperation Act limrts the authonty or power of either party to contract pursuant to RCW 36 O1 O10 and RCW 36 100 030(2) To avail themselves of the supplemental powers and authority granted by the Interlocal Cooperation Act, the parties agree that a No separate legal or administrative entrty within the meanmg of RCW 39 34 030(3)(b) or "�omt board" wrthm the meanmg of RCW 39 34 030(4)(a) is created by this Agreement, b The City's Director of Public Works & Utilrties, is appointed as the "admimstrator" withm the meamng of RCW 39 34 030(4)(a) and is responsible for admmistering the City's rights and duties set forth in this Agreement, and the KPFD's president is appomted as the "administrator" wrthm the meanmg of RCW 39 34 030(4)(a) and is responsible for administermg the KPFD's rights and duties set forth in this Agreement, c. Paragraphs 2, 3, and 4 of this Agreement set forth the manner in which property is to be acquired, held, and disposed of under this Agreement, as required by RCW 39 34 030(3)(e) and RCW 39 34 030(4)(b), and -6- d The City will, pursuant to RCW 39 34 040, cause this Agreement to be filed wrth the Krtsap County Audrtor immediately upon the full exeeution hereof by the parties 15 Available Legal Remedies. The parties have the right to exercise any and all of the followmg remedies, smgly or in combination, m the event that a party violates any material provision of this Agreement a Commence an action for equrtable or other relief, includmg in�unctive relief, or b Seek a writ of mandamus to compel performance, or c Commence an action seekmg specific performance of any provision that reasonably lends itself to such remedy 16 Procedure in the Event of Default Before exercising any of the available legal remedies the party allegmg a breach ("Parly") shall follow the procedure below a Notice of Violation In the event that the Party believes that the other party has not complied with the terms of this Agreement and is a defaultmg party ("Defaultmg Party"), the Party shall notify the Defaultmg Party m - writing, by certified mail, of the nature of the alleged non-compliance b The Defaultmg Party's Right to Cure or Respond The Defaultmg Party shall have ten (10) days from the receipt of notice described above, to (a) respond to the Party, or (b) to cure such default or, in the event that by nature of the default such default cannot be cured wrth the ten (10) day period, imtiate steps to remedy such default as promptly as possible The duty to cure mcludes the duty to cure all harms caused by the acts or omissions of the Defaulting Party At the end of the ten (10) day per�od, the Defaulting Party shall notify the Party, in writing, of the steps it has taken to cure the default, if any, if the cure is not complete, the reason it is not complete and the pro�ected date for completion, and if the default is disputed, the complete basis for that contention c If the Party determmes that the Defaulting Party did not cure or imtiate steps to cure to the Party's satisfaction, after the notice required herein was provided, then the Party may exercise rts available remedies 17 Supplemental Documents. The parties agree to complete and execute all supplemental documents necessary or appropriate to implement fully the terms of this Agreement -7- 18 Duration of Agreement. This Agreement shall contmue in full force and effect until the soonest of the time that the parties have fully performed their respective obligations under this Agreement, the City's lease for the premises that contain the Additional Improvements installed and funded as set forth herem has expired or terminated (which early termmahon shall require the consent of the KPFD), that the KPFD is no longer Iegally entitled to collect Saies Tax, or that this Agreement has been termmated by agreement of the parties 19 Governin� Law; Venue. This Agreement is governed by and shall be construed m accordance wrth the substantive laws of the State of Washmgton 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 m and for Krtsap County 20 Notices All notices and other written commumcations required by this Agreement shall be in writmg and, except as expressly provided elsewhere m this Agreement, shall be deemed to have been given at the time of delivery if personally delivered, or at the time of mailmg if mailed by first class, postage pre-paid and addressed to the party at rts address as stated below or at such ' address as any party may designate at any time m wrrtmg To KPFD Chair, Board of Directors Krtsap Public Facilrties District 9481 Silverdale Way, NW Surte 265 Silverdale, WA 98383 . And to Executive Director, Krtsap Public Facilrties District 9481 Silverdale Way NW, Surte 265 Silverdale WA 98383 To Crty City Clerk City of Bremerton 345 6 Street, Suite 600 Bremerton, WA 98337 21 Severabilitv. � It is the intent of the parties that if any provision of this Agreement or its application is held by a court of competent jurisdiction to be illegal, invalid or void, the validity of the remammg provisions of this Agreement or rts application to other entrties, or circumstances shall not be affected The remammg provisions shall contmue in full force and effect The rights and -8- obligations of the parties shall be construed and enforced as if this Agreement did not contam the particular invalid provision However, if the mvalid provision or rts applicahon is found by a court of competent �urisdichon to be substantive and to render performance of the remammg provisions unworkable and non-feasible, and is found to seriously affect the consideration and/or is mseparably connected to the remamder of this Agreement, then the entire Agreement shall be null and void 22 Complete Agreement. This Agreement, together wrth that certain Interlocal Agreement Regardmg Fundmg, Development, and Operation of the Krtsap Regional Conference Center, dated March 25, 2002 ("the Origmal ILA") which was amended and restated on July 28, 2003 ("the First Amended & Restated ILA")represent the entire agreement between the parties concerning the Kitsap Regional Conference Center This Agreement may not be amended except as provided herein 23 Bond Covenants. Nothmg in this Agreement is intended to affect or in any way modify the bond covenants previously made by the City m that Interlocal Agreement Regarding Fundmg, Development, and Operation of the Krtsap Regional Conference Center, dated March 25, 2002 ("the Ongmal ILA") which was amended and restated on July 28, 2003 ("the First Amended & Restated ILA") 24 Modification No change, termmation or attempted waiver of any of the provisions of this Agreement shall be bmding on any of the parties unless executed in wrrting by authorized representatives of each of the parties This Agreement shall not be modified, supplemented, or otherwise affected by the course of dealmgs between the parties 25 Benefits. This Agreement is entered mto for the benefit of the parties to this Agreement only and shall confer no benefits, direct or implied, on any third persons 26 Assignment. The rights granted by this Agreement may not be assigned wrthout the written consent of all the parties hereto 27 Execution in Counterparts. This Agreement may be executed m several counterparts, each of which shall be an origmal and all of which shall constitute but one and the same instrument 28 Disclaimer With Respect to Loans and the KPFD. � ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW CITY OF BREMERTON � Patty Le , ayor st � Shannon L Corm, City Clerk Approved as to form• Rog r Lubovich, City Attorne , Signatures Continue on Next Page , ' � -10- KITSAP PiJBLIC FACILITIES RICT � esa Osmski, air Attest ��N � � , Anne Blair, Treasurer Approved as to form o�/e�c � �r.�� Brian E. Lawler, General Counsel Socius Law Group PLLC -11-