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Home My WebLink About04/06/05 AGENDA F _E CITY COUNCIL 345 6th Street, Suite 600, Bremerton, WA 98337-1873 03 (360) 473-5280 *** AMENDED*** APRIL 6, 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 5. CONSENT AGENDA A. Claims & Check Register (#AB05-083) B. Minutes of Meeting - March 30, 2005 (#AB05-084) C. Approval of Budget Adjustment for Funding of Environmental Review of the Chevron Property adjacent to Evergreen Rotary Park (#AB05-085) D. Telecommunications Facilities Lease Agreement between the City of Bremerton and SEATTLE SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS (#AB05-086) E. Telecommunications Facilities Lease Agreement between the City of Bremerton and FTP CORPORATION (#AB05-087) 6. PUBLIC HEARINGS A. Public Hearing and Resolution No. 2956 to surplus and approve sale of Public Utility Property (38 acres formerly known as the Tracyton Watershed) to BEALKO, INC. (#AB05-060) B. Resolution No. 2960, regarding a Closed Record Hearing for the Sylvan Preliminary Plat (File Number BP04-00412) located at the intersection of Ricky Road and Sylvan Way (#AB05-088) 7. GENERAL BUSINESS ,1'\. Approval of 2005 CDBG "off cycle" Funding Request for:. the KITe^P COU~JTY COMMUNITY DEVELOPME~JT CORPORATION Small Business Revolving Loan Progr3m (1fAB05 089) B. Local Agency Standard Consultant Agreement with "SAMPLEY CONSULTING" for the Downtown Pedestrian/BTC Access Improvement Project (#AB05-090) 8. PUBLIC RECOGNITION 9. COUNCIL MEMBER REPORTS 10. ADJOURNMENT OF CITY COUNCIL 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. /J '" CITY COUNCIL MEETING SPEAKERS LIST PLEASE NOTE THAT ALL REQUESTS FOR INFORMATION FROM THE CITY OF BREMERTON MUST BE SUBMITTED IN WRITING. THANK YOU. I PLEASE PRINT YOUR NAME BELOW IF YOU PLAN TO SPEAK DURING THE COUNCIL MEETING TONIGHT Eoyer 12'7'110 --- 72e ~c;.~ {daJ-e-- s 0 /~ 0;::- '""3 D_8cTE SUBMITTED: BILL;I;' ::> ~O o' AGENDA BILL CITY OF BREJ'v1ERTON SA CITY COlTl'-rCIL eeevmm~mIDIDm~8e~E~m~~~S~~R~~eB~mm~M~~EB~s~.mDggEBm~~ms~e~~Dm6emGmBmSmSm~em~e~B~~~E~Bmm~ID~ SUBJECT: Approval of Claims and Checks Committee I'vleeting Date: - Register COllNCIL MEETll'-JG Date: f~~-()5 Department: Financial Services Presenter: Cathy Johnson Phone: 473-5296 SlJI\iMARY: Consent agenda item. Approval of payroll, checks and electronic fund transfers. ATTACHlVIENTS: FISCAL IMPACTS (Include Budgeted Amount):. , APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: FISCAL/BUDGET: ..- CONSENT AGENDA [ZI OPERATIONS: COUNCIL PRESIDENT: -p~ r~m ~ ~ v & 787- &7?1 RECOMMENDED MOTION: Move to Approve: fJ 7 p-o - G, 7~ 1) Check#'s >>?5i?tef througl~/055t and EFT's &77:2 through 0775" 7 h I & 7 in the amount of $ 710. &A7[ Y p 2) Regular Payroll for the pay eriod ending in the amount of $ I .. ~ in the amount of$ 7fLcJ92, g" 3) Retiree Payroll for the pay period ending ;{ -:;2-~-G:b COUNCIL ACTION: ~ove o Deny o Table o Continue o No Action DATE SUBMITTED: BILL # oS - D8'1 AGENDA BILL CITY OF BREMERTON 53 CITY COUNCIL ........................................................................................ SUBJECT: Minutes of Meeting - Committee Meeting Date: N/A /11 ar~1t .30 I d-OO S" COUNCIL MEETING Date: Aprli '-. ;;. o oS' Department: City Council Presenter: Daren Nygren, Council President Phone: (360) 473-5280 SUMMARY: Attached are the minutes for the Council Meeting held. MC;r&h 30, ;J.ooS"'. ATTACHMENTS: Minutes for 1'141'cJ" 3f) ~oo~ f FISCAL IMP ACTS (Include Budgeted Amount): 0 APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: FISCAL/BUDGET: CONSENT AGENDA IZI OPERATIONS: COUNCIL PRESIDENT: ~~ RECOMMENDED MOTION: Move to pass the Consent Agenda as presented. COUNCIL ACTION: 0 Approve o Deny o Table o Continue o No Action DIGITAL RECORDING .. CITY COUNCIL MEETING MINUTES Wednesday, March 30, 2005 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, of the NORM DICKS GOVERNMENT CENTER 345 6th Street, Bremerton, Washington, Wednesday, March 30, 2005, at 5:30 P.M., with Council President Daren Nygren presiding. Council members present were Mike Short, Will Maupin, Carol Arends, Dianne Robinson, Mike Shepherd, Wendy Priest, Cecil McConnell, and Brad Gehring. Also present were City Attorney Roger Lubovich; City Clerk Paula Johnston; and Council Assistant Christine Grenier. The Pledge of Allegiance was led by Council Member Cecil McConnell; followed by the invocation provided by Associate in Ministry Ethyl Mae Nelson of Our Saviour's Lutheran Church. President Nyaren made the following announcements: 1. A Pre-Council session was held in Council Conference Room 603 from 5:00 to 5:30 PM; 2. Council will meet in Council Conference Room 603 immediately following the Council Meeting for a Study Session to hear presentations on upcoming agenda items; and 3. Welcomed Christina Lawrence and Tinisha RockieUe, who were participating in the BREMERTON AREA CHAMBER OF COMMERCE" Shadow Day 2005" with the City Council and Council staff. PUBLIC SERVICE ANNOUNCEMENTS Mike Short announced the City Pride Award winner for the Month of March 2005 would go to Mr. & Mrs. Wilfredo Fernandez of Sandpiper Court; and accepted it on their behalf. Mike Shepherd read a letter that congratulated the City of Bremerton on receiving a Tree City USA Award for 2004. Wendy Priest announced that a Dog Park Meeting will be held on Thursday, March 31 beginning at 7:00 P.M. at the Sheridan Park Recreation Center. Daren Nyaren announced that the next District 3 Neighborhood Meeting will be held on Tuesday, April 26 from 7:00 to 8:30 P.M. at the Manette Senior Center, and the discussion would be on the "Bremerton School District Bond Levy". CONSENT AGENDA A. Check Numbers 298670 - 298863; EFT-6767 - EFT-6762; EFT-6764 - EFT-6765; EFT-6767; EFT-6769 - EFT-6770; 6763P; 6766P; and 6768P in the amount of $462,181.13; Regular Payroll for the period ending March 15, 2005 in the amount of $635,933.39 (#AB05-080) B. Minutes of Meeting - March 23, 2005 (#AB05-081) 5:40:45 M/S/C/U (Priest/McConnell) Move to approve the Consent Agenda as presented. 5A - ORDINANCE NO. 4932 rSECOND READINGl ADOPTING AMENDMENTS TO TITLE 20 OF THE BREMERTON MUNICIPAL CODE RELATING TO THE CITY ZONING CODE (#AB05-051l: The first reading of this ordinance was heard on February 23, 2005. Chris Huao, Director of Community, summarized the action before the Council tonight, and stood by for questions. He clarified that after all zoning code amendments have been reviewed and approved, then those changes would be incorporated into the final zoning map and only then would the changes take -------------.---------..---------- ---- ------- ---- ---- City Council Reg. Mtg. Minutes Wednesday, March 30, 2005., Page 2 of 4 effect. After considering Council discussion, he suggested that language be changed regarding the definition of a recreation vehicle and parking provisions. Mr. Lubovich clarified that strikeouts in the ordinance indicate changes that have been made since the last hearing. Steve Brett commented on a minimum lot size provision within the ordinance and believed that the proposed change would encourage construction of rental complexes instead of single family projects. Stan lev Smith also expressed concerns over the minimum lot size language in the ordinance and suggested that the lot size be adjusted over different zones to allow for different housing densities. Mr. HUQO stated that the provision for 3000 square foot lot size was set for townhomes in district centers and the 10 acre sites would allow planned unit development yet would allow appropriate density levels based on different zones and adjust for areas that may have steep slopes or wetlands. Mr. Shepherd mentioned that the urban centers typically have smaller lot sizes. Mr. Lubovich clarified that the changes regarding the definition of recreational vehicles and parking provisions will be incorporated into the ordinance as well as all passing amendments. 6:04:10 M/S/C/U (Arends/Maupin) Move to pass Ordinance No. 4932 on second reading as amended. 6:04:40 Amended-Motion M/S/C (Priest/Shepherd) Move to delete section 20.46.010 (a) "An accessory dwelling unit (ADU) may only be created as a component of a new single family dwelling unit and shall be recorded in construction plans and permits for construction of the new single family unit and any accessory garage". Voted in favor of Amended-Motion: Priest; Shepherd; Robinson; Arends; Maupin; Short; Gehring; Nygren Voted opposed to Amended-Motion: McConnell Amended Motion Carried: 8-Yes; 1-No 6:09:30 Amended-Motion M/S/C (Gehring/Maupin) Move to change setback requirement from 10 feet to 5 feet over the standard requirement for every 100 square feet in Section 20.60.070(c) (1). Voted in favor of Amended-Motion: Robinson, Arends, Maupin, Short, Gehring, McConnell Voted opposed to Amended-Motion: Priest, Shepherd, Nygren Amended Motion Carried: 6-Yes; 3-No 6:12:40 Amended-Motion M/D (Gehring/) Move to amend maximum height of signs from 8 feet to 12 feet in Section 20.64.070 (e) (3). Motion died due to lack of second. 6:13:45 ~mended-Motion M/S/C/U (Shepherd/Robinson) Move to amend 20.46.050 (e) such that "any occupied recreational vehicle must be self-contained, and all garbage and sanitation shall be disposed of in a manner approved by the City". I City Council Reg. Mtg. Minutes Wednesday, March 30, 2005i; Page 3 of 4 6A - PURCHASE AND SALE AGREEMENT BETWEEN THE CITY OF BREMERTON AND EAST PARK LLC FOR THE SALE OF EASTPARK (#AB05-082l: Gary Sexton, Economic Development Director, explained that staff is recommending that the City sell the property commonly known as Eastpark to EAST PARK LLC for the sum of $2,100,000.00. The terms are $925,000.00, including earnest money of $5,000.00, to be paid by Purchaser at time of closing which is April 22, 2005. The purchase price includes $250,000.00 to be applied to any offsite storm sewer improvements, modifications or repairs for water conveyance from the property to Puget Sound. The buyer is proposing to build approximately 300 or more housing units including not less than 75 multi-family units and agrees that build out of the project will occur within not more than four phases over a period not to exceed four years from the receipt of final Plat and/or Planned Unit Development approval. Jack Willing of LYLE HOMES, commented that market studies have been done so they are confident of the project's cost; and there are public meetings planned to take feedback from Manette residents to help shape the area's identity. Mr. Sexton advised the Council to move forward on this project. Chris Kealy of DIAMOND, believed that his offer meets all of the criteria as set by the City and asked that the Council consider that offer before making a decision. Mr. Shepherd asked if any public meetings have been held with residents of the Manette community. Mr. Sexton responded that there have been two meetings with the citizens when CHAFFEY HOMES was a prospective builder. Mr. Nyaren summarized that he represented Manette and the constituents' concerns in the selection process. Mr. Shepherd asked how much of an investment LYLE HOMES has put forward. Mr. Willina answered that a market study, preliminary conceptual design, and discussion on engineering costs have been done and the estimated cost would be about $15,000. Mr. McConnell pointed out that there is no penalty for not building out the project in a timely fashion. Mr. Sexton commented that there is a level of trust in these kinds of transactions and substantial investment so it is hoped that the builder would follow through on the project. Mr. McConnell asked if the Navy is aware that part of the purchase price includes $250,000 to be spent on off-site sewer improvements. Mr. Sexton answered yes. Mr. McConnell requested clarification of "Harborside Pathway". Mr. Sexton explained that it is a concept for a walking trail that connects various parks and potentially the boardwalk. Mr. Short provided comments in support of this purchase offer. Mr. Maupin asked if all companies receive ample time to respond in the bidding process. Mr. Sexton outlined the difficulties that occurred during the process and answered that while the majority of the groups had sufficient time to respond to needs of the City, DIAMOND had not been part of the earlier discussions and therefore did not have time to make any changes to the proposal. Mr. Shepherd asked what the market price of the single family residential. Mr. Sexton answered that the cost would be about $180,000 to $400,000, depending on the style of the home. Mr. Shepherd was interested in how the projected property tax revenue will fit in with infrastructure costs. ------...---- City Council Reg. Mtg. Minutes. Wednesday, March 30, 2005 Page 4 of 4 Mr. McConnell emphasized the importance of receiving all of the information in order to make a decision. Mr. Nvaren believed that a policy is necessary to address the issues raised in receiving purchase offers on real estate. 6:53:30 (Arends/Short) to approve the Real Estate Purchase and Sale Agreement with Earnest Money Provision between the CITY OF BREMERTON and EAST PARK LLC for the sale of Eastpark for the sum of $2,100,000 and authorize the Mayor to execute the agreement in substantially the same form as presented; and subject to.the approval of the City Attorney and Financial Services Director, prior to closing, as the bank's commitment associated with setting aside the necessary loan funds of $1,175,000.00 payable to the City. With no further business, the meeting of the City Council was adjourned at 6:55 PM. The meeting was reconvened in Council Conference Room 603 for a Study Session to hear presentations on upcoming agenda items. Prepared and Submitted by: CHRISTINE GRENIER Council Assistant Attest: PAULA JOHNSTON, City Clerk DAREN NYGREN, City Council President DN/PJ/ls/cge DATE SUBMITTED: 3-30-05 BILL # t)S'..- Og~ AGENDA BILL CITY OF BREMERTON 5C CITY COUNCIL ...........................................................................................1 SUBJECT: Approval of Budget Adjustment Committee Meeting Date: for Funding of Environmental Review of the COUNCIL MEETING Date: 4-6-05 Chevron Property adjacent to Evergreen Park Department: City Council Presenter: Pres. Daren Nygren Phone: 473-5280 SUMMARY: Upon consideration ofthe proposed purchase ofthe Chevron Property adjacent to Evergreen Park, the City Council decided to obtain an independent environmental assessment of the property. Parametrix, Inc. was selected as the consultant. There are no identified funds for this environmental assessment in the 2005 Budget. It is recommended that this expenditure be authorized. The 2005 adopted budget will be formally amended at a later date and will include this additional expenditure with the funding source reflected as a corresponding reduction in the General Fund Ending Balance for 2005. This contract will not exceed $20,000. ATTACHMENTS: FISCAL IMP ACTS (Include Budgeted Amount): Funds, not to exceed $20,000, are to be committed from the General Fund Ending Balance for 2005. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: FISCAL/BUDGET: CONSENT AGENDA D OPERATIONS: COUNCIL PRESIDENT: ydv'\1A- I~ RECOMMENDED MOTION: Move to approve Cunding Cor the Parametrix, Inc. ProCessional Service Agreement in an amount not to exceed $20,000, where the Cunding source is a corresponding reduction in the General Fund Ending Balance Cor 2005. COUNCIL ACTION: D Approve D Deny D Table D Continue D No Action DATE SUBMITTED: BILL # of-os, AGENDA BILL CITY OF BREMERTON 5 ~ CITY COUNCIL ,/ ..........................................................................................., SUBJECT: Committee Meeting Date: March 30, 2005 Communications Tower Lease Agreement COUNCIL MEETING Date: April 6, 2005 Y3etwee.\A.. ~e t;t-y ec.1.A.Ci S"';\.f.SA/V.ev-; -;z.OIAJ Department: PW& Util Presenter: PaulLucas,Ad~in, ~ Manager 67?~ Phone: 2328 SUMMARY: The City currently leases either sites or towers to various communications organizations. The attached Lease Agreement is from SMSA (A Verizon Wireless Limited Partnership). The SMSA lease expired in July of2004 and has been operating on a month-to-month basis pending approval of a revised lease agreement form by all parties concerned. The new lease will run for a period of 5 years. The new lease agreement states that SMSA will pay the City $900.00 per month. (Previously paid $681.89 per month). The SMSA tower is multi-purposed and allows for additional antennas. SMSA will pay the City 50% of any revenues received from co-locations on the tower. ATTACHMENTS: SMSA Lease Agreement FISCAL IMPACTS (Include Budgeted Amount): None APPROVALS: ( DEPARTMENT DIRECTOR:' CITY ATTORNEY: '.- FINANCE DIRECTOR: MAYOR: FISCAL/BUD~ET: ,_} {! /p \ ~._ .}. ~::;z - CONSENT AGENDA 181 OPERATIONS. / A:[A;.4}'--C v,,,,ctt:>;ft..?1;;,,...' COUNCIL PRESIDENT: ~ ~...-- RECOMMENDED MOTION: That the City Council approve the attached Lease Agreement and authorize the Mayor to execute IA V.' curreat City Polieies and Procedures: ~ \..e,q ~e, w't ~ S' M SA / V-e V'i ?-Cvt..> .. COUNCIL ACTION: 0 Approve 0 Deny 0 Table 0 Continue 0 No Action TELECOMMUNICATIONS FACILITIES LEASE AGREEMENT THIS LEASE AGREEMENT entered into by and between the City of Bremerton, a municipal corporation duly organized and existing under the laws of the State of Washington, as Lessor (hereinafter referred to as "City") and Seattle SMSA Limited Partnership d/b/a Verizon Wireless (hereinafter referred to as "Lessee"). WIT N E SSE T H: 1. PREMISES. The City leases to the Lessee real property located at Alexander Lake for housing, installing, constructing, operating and maintaining certain telecommunications facilities, legally described and/or depicted in Schedule A attached hereto and incorporated herein ("Premises"). Lessee accepts the Premises for such purpose, subject to the considerations, terms and conditions specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as "Lease"). 2. DEFINITIONS. For the purpose ofthis Lease, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings: "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers; "Public street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes, including forest access roads; "Public way" means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a permit or lease to occupy and use such streets and easements for telecommunications facilities; "Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering telecommunications service; "Telecommunications facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment storage structures and other appurtenances used or to be used to transmit, receive, distribute, provide, house or offer telecommunications services; LEASE AGREEMENT - 1 "Telecommunications provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities; "Telecommunications service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. "Utility easement'; means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities. 3. USES AND PURPOSES. Lessee shall have the use and occupancy of the Premises for the purpose of transmission and reception of telecommunication and signals in any and all frequencies using real property and telecommunications facilities approved in Schedule A. Lessee shall be responsible for adherence to all federal, state and local regulations pertaining to the operation of a communications facility. ^ Lessee shall have the right, at its expense, to erect and maintain on the Premises improvements, personal propertyand facilities, as described in Schedule A after obtaining required permits and as approved by City on the Site Plan. City shall provide Lessee access to the Premises at all times on a twenty four hour a day, seven day a week basis, adequate to service the Premises and the telecommunication facilities at all times during this Lease. Lessee agrees to provide the City with a scheduling outlining the ^ frequency of required visits (e.g., quarterly maintenance check, monthly site cleanup, etc.) Lessee shall provide the City with a list of all authorized individuals who will have access to the Premises. Notification of changes to the list shall be provided to the City within 24 hours by telephone or fax from the point of contact identified in Section 41(G), which notice shall be followed by written notification pursuant to Section 41(G). Lessee shall be responsible for conducting appropriate background checks of all of their employees. Employees visiting the Premises shall be clearly identifiable as employees of the Lessee either by uniform identification badge or marked company vehicle. 4. NON-EXCLUSIVE LEASE. Subject to the provisions of Section 7 herein, this Lease is nonexclusive and does not preclude the City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or other persons for telecommunications or any other purpose. LEASE AGREEMENT - 2 5. TERM OF LEASE. This Lease shall be valid for a term of five year(s) commencing August 1, 2004 and terminating July 31, 2009. 6. [Intentionally Deleted] 7. INTERFERENCE WITH OTHER USERS. The Lessee acknowledges that the City may enter into leases with other tenants for their equipment and telecommunications facilities for the purposes oftransmitting and receiving telecommunication signals from City property. The City, however, is not in any way responsible or liable for any interference with Lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the Lessee's use ofthe City property, and such use or operation was not in existence on the date of execution ofthis Lease, and the Lessee cannot resolve this interference with the other tenants, the City will, upon written request by Lessee, cause such interfering use to cease. Lessee understands that if its use interferes with the then-existing equipment of a prior tenant, and the interference problem cannot be cured, this Lease may be terminated by the City pursuant to Sections 35 and 36. The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at Lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications in existence as of the Agreement's commencement date, or other City facilities located upon the City property subject to this Lease except those City antenna sites placed upon Lessee's facilities pursuant to Section 10 B. 8. OWNERSHIP AND REMOVAL OF IMPROVEMENTS. All landscaping and all other improvements, except telecommunications facility, shall become the property of the City upon expiration or termination of the Lease. In the event thatthe City requires removal of such improvements after termination ofthe Lease, such removal shall be accomplished at the sole expense of the Lessee and completed within 30 days after receiving notice from the City requiring removal ofthe improvements. Additional time may be granted upon the discretion of the City which approval shall not be unreasonably withheld. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination ofthe lease, they shall, at the City's option, ifIlot removed by the Lessee upon 30 days written notice from the City, be removed and stored at the expense of Lessee. Stored telecommunications facilities that are not claimed by the Lessee within six (6) months from termination of the Lease shall become the property of the City. 9. CANCELLATION OF LEASE BY LESSEE. A. All Leases are contingent upon the Lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain LEASE AGREEMENT - 3 all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days prior written notice to the City. Lessee agrees to restore City property to original condition if cancellation is requested. B. In the event that the holder of a Lease determines that the City property is unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 180 days written notice to the City. However, no prepaid rent shall be refundable; except in the event any changes occur with respect to the City's use of the property subsequent to the effective date ofthis Lease (including but not limited to additional Lessees as permitted by the City) and such changes result in the property becoming unsuitable for Lessee's intended purpose. 10. COMPENSATION TO THE CITY. A. Starting on the Commencement Date and on the first day of each month thereafter during the term of the Lease, Lessee shall pay rent at a rate of Nine Hundred Dollars ($900.00) per month, prorated for any partial months. Substantial expansion of the initial configuration contained in Schedule A will result in review and possible re-negotiation ofthe rental rate contained herein. At the beginning of each successive year thereafter, the monthly rent shall automatically be adjusted based upon the CPI for all urban consumers, Seattle-Tacoma index (1982-84=100) as published by the Bureau of Labor Statistics for the last month for which statistics are posted prior to the effective date above. However, rent shall not, in any case, decrease, nor shall the annual rent increase by more than five (5) percent per year above the annual rent for the preceding year. Any payments received after the due date shall include a late payment penalty of2% of the annual rental fee for each day or part thereof past the due date. B. Additional Consideration. City shall be allowed, at City's sole expense, to attach City's communication antennas to Lessee's telecommunications tower provided City first obtains Lessee's prior written consent for such attachments. Such consent shall not be unreasonably withheld. Lessee's approval for said attachments shall be contingent upon determining whether Lessee's tower is properly engineered to accommodate City's antenna system and such transmission shall not result in any impairment or diminution in the quality of Lessee's service. Further, said approval shall be given only after Lessee has reviewed and approved City's engineering plans for said antenna attachments in a location specified by Lessee. Approval shall not be unreasonably withheld. Upon written approval by Lessee, said attachments shall be installed by qualified licensed contractors and in accordance with Lessee's directives for the method of installment and with permits issued by all applicable governmental authorities having jurisdiction which shall first be obtained by City at its sole expense. City acknowledges and agrees that Lessee reserves the right to relocate City's antennas at any time(s) to accommodate modifications required for Lessee's future system requirements, provided such relocation shall provide equivalent quality of service after such relocation. LEASE AGREEMENT - 4 ------ C. Pursuant to Section 27 Lessee shall pay to the City 50% of any and all sublessee rent for co-location on Lessee's tower. 11. AMENDMENT OF LEASE. Except as provided within the existing Lease, a new lease application and Lease shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application. 12. RENEWAL APPLICATION. A Lessee that desires to renew its Lease under this Artic1e shall, not more than one hundred twenty (120) days nor less than sixty (60) days before expiration of the current Lease, file an application with the City for renewal of its Lease which shall include the following: A. Any additional information required based upon elements of the current Lease agreement between the City and the Lessee; B. All deposits or charges required pursuant to City ordinances; c. A non-refundable application fee in the amount of Five Hundred and NollOO Dollars ($500.00). The City reserves the right to extend the review period for the renewal application if additional information is required. 13. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease shall be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease have been cured, or a plan detailing the corrective action to be taken by the Lessee has been approved by the City. 14. IMPROVEMENTS. During the term of this Lease if Lessee wishes to substantially expand the initial configuration contained in Schedule A, Lessee will submit a new application to the City. 15. POLICE POWER. In accepting this Lease, the Lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. LEASE AGREEMENT - 5 16. INTERFERENCE WITH THE PUBLIC WAYS. The Lessee shall not locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities which interfere with public ways shall be moved by the Lessee, at the Lessee's cost, temporarily or permanently, as determined by the City Public Works and Utilities Director. 17. REPAIR AND EMERGENCY WORK. In the event of an unexpected repair or emergency, the Lessee may commence such repair and emergency response work as required under the circumstances, provided the Lessee shall notify the City as promptly as reasonably possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. 18. MAINTENANCE OF LEASE FACILITIES. The Lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. Lessee shall not permit waste, damage, or injury to the premises including any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. Lessee shall not store any chemicals, hazardous or otherwise, in the well head protection area. Lessee shall not restrict site access to City. City shall have the exclusive right to inspect the Lessee's telecommunications facilities and equipment at any time during the term of this Lease to ensure compliance with the terms and conditions herein; Provided, however, Lessee has the right to be present at all inspections of Lessee's telecommunications facilities and equipment, and City shall give Lessee at least 72 hours prior notice of such intent. 19. SIGNAGE. Lessee shall display proper signage as required by the FCC as well as current signage on telecommunication facilities identifying Lessee, address and a 24 hour phone number. Signage shall be posted and clearly visible at all times. 20. RELOCATION OR REMOVAL OF FACILITIES. Within one hundred eighty (180) days following written notice from the City, the Lessee shall, at its own expense, temporarily or permanently remove, relocate, change Or alter the position of any telecommunications facilities within the public ways or upon City property whenever the City Public Works & Utilities Director shall have determined that such removal, relocation, change or alteration is reasonable necessary for: A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways; and B. The operations of the City or other governmental entity in or upon the public ways. LEASE AGREEMENT - 6 Additional time for removal or relocation may be granted at the discretion of the City which extension shall not be unreasonably withheld. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 21. REMOVAL OF UNAUTHORIZED FACILITIES. Within sixty (60) days following written notice from the City, Lessee or anyperson who owns, controls or maintains on behalf of Lessee, any unauthorized telecommunications system, facility or related appurtenances within the public ways or real property ofthe City shall, at its own expense, remove such facilities or appurtenances from the public ways or property ofthe City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. Upon expiration or tennination ofthe Lessee's Lease without approved extension or renewal; B. Upon abandonment of a facility within the public ways or real property of the City. Any property of a Lessee shall be deemed abandoned if left in place 60 days after expiration or tennination of the Lease; C. If the system or facility was constructed or installed without the prior grant of a Lease; D. If the system or facility was constructed or installed without the prior issuance of a required City permits; and E. If the system or facility was constructed or installed at a location not pennitted by the Lease. Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such persons who may own, control, or maintain telecommunications facilities within the public ways or property of the City to abandon such facilities in place. No facilities of any type may be . abandoned in place without the eJCpress written consent of the City. Any plan for abandonment or removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director, and all necessary permits must be obtained prior to such work. Upon authorized pennaneht abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property in which event, Lessee shall have no further obligations or liability with respect to such property or facilities. The provisions of this Section shall survive the expiration, revocation, or termination of the Lease grantedhereunder. If the City does not authorize abandonment and Lessee fails to remove such facilities within thirty (30) days following notice, Lessee agrees to reimburse the City for any and all costs incurred by the City for facilities removal. LEASE AGREEMENT - 7 ---- 22. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the City and upon City property, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to Lessee, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 23. DAMAGE TO FACILITIES. Unless directly and proximately caused by the negligence or willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not be liable for any damage to or loss of any telecommunications facility upon City property or within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within the public ways by or on behalf of the City. 24. RESTORATION OF PUBLIC WAYS, OTHER WAYS AND CITY PROPERTY. A. When the Lessee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, .or when Lessee, or any person acting on its behalf damages any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to City construction standards as adopted before the work was undertaken, unless otherwise directed by the City. Lessee shall obtain all requisite permits for such work. B. If weather or other conditions do not permit the complete restoration required by this Section, the Lessee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. The Lessee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. D. The Public Works and Utilities Director shall be responsible for inspection and final approval of the condition of the public ways, other ways, and City property following any construction and restoration activities therein. Further, the provisions of this Section shall survive the expiration, revocation, or termination ofthis Lease. LEASE AGREEMENT - 8 .25. FACILITIES MAPS. The Lessee shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of its telecommunications facilities within the public ways and upon City property. The Lessee shall provide the City with updated maps upon request by the City. 26. BOOKS, RECORDS AND MAPS. All books, records, maps and other documents, maintained by the Lessee with respect to its telecommunications facilities within the public ways and upon City property shall be made available for inspection by the City at . reasonable times and intervals; Provided, however, that nothing in this Section shall be construed to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require the Lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 27. LEASED CAPACITY AND CO-LOCATION. Lessee shall have the right, with prior City approval, to sublet the premises consistent with this Lease; provided: A. The Lessee shall furnish the City with a copy of any such proposed lease or agreement between the Lessee and its sub-lessee; B. The sub-lessee has complied, to the extent applicable, with the requirements contained in this Lease; C. The Lessee owns and/or controls the tower facility located on City property; D. The City and Lessee shall agree upon additional rental fee for sub-lessee hook -ups pursuant to Section 11. The City encourages co-location on existing telecommunications facilities and to that end will not unreasonably withhold approval of sub-leases. 28. UTILITIES. . Electricity, HV AC and telephone service, or other utilities are to be provided to the Premises and Site at Lessee's expense and as outlined in ScheduleA. City shall cooperate with Lessee in obtaining utility service. 29. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be responsible for paying real or personal property, excise leasehold, business and occupation, and/or other taxes or licenses which may in the future be assessed as a direct result of the Lessee's operations at the telecommunications facilities described herein. 30~ INSURANCE. The Lessee shall, as a condition of the Lease, secure and maintain the following liability insurance policies insuring both the Lessee and the City, and its eleCted LEASE AGREEMENT - 9 and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the Lessee: A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: (1) $2,000,000.00 combined single limit coverage for bodily injury and property damage; (2) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $2,000,000.00. B. Automobile liability for owned, non-owned and hired vehicles with a minimum limit of $2,000,000.00 for each accident; c. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; D. The liability insurance policies required by this Section shall be maintained by the Lessee throughout the term of the Lease, and such other period of time during which the Lessee is operating without a Lease hereunder, or is engaged in the removal of its telecommunications facilities. The Lessee shall provide an insurance certificate designating the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any facilities pursuant to said Lease. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of the Lessee. The Lessee's insurance shall be primary insurance as respects the operations of Lessee. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Lessee's insurance and shall not contribute with it in this regard. The City shall be provided thirty (30) days advance notice of cancellation of any coverages required in 30.A. above; E. Within thirty (30) days after receipt by the City of said notice, and in no event later than fifteen (15) days prior to said cancellation or intent not to renew, the Lessee shall obtain and furnish to the City replacement insurance certificates meeting the requirements of this Section. 31. GENERAL INDEMNIFICATION. Lessee covenants not to bring suit against the City and hereby agrees to defend, indemnify, and hold harmless the City, its appointed and LEASE AGREEMENT - 10 elected officers, employees, agents and vo1UIite~rs from and against any and all liability, loss, costs, damage, and expense, including costs and attorney fees in defense thereof, and including claims by the Lessee's own employees to which the Lessee might otherwise be immune under Title S 1 RCW, because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time resulting therefrom, sustained or alleged to have been sustained by any person or persons, and on account of damage to property, arising or alleged to have arisen directly or indirectly out of or in consequence of the performance of this Agreement, whether such injuries to persons or damage to property is due to the negligence ofthe Lessee, its agents, employees, representatives or assigns. This provision shall be inapplicable to the extent such damage or injury is judicially found to be caused by the sole negligence ofthe City. This provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated by the parties. Lessee assumes the risk of damage to its facilities located in the City's public ways, rights-of- way, easements, and property from activities conducted by the City, its officers, employees, agents, and volunteers. The Lessee releases and waives any and all claims against the City, its officers, employees, agents, and volunteers for damage to or destruction ofthe Lessee's facilities except to the .extent any such damage or destruction is caused by the willful and malicious action . of the City, its officers, employees, agents, or volunteers. 32. CONSTRUCTION AND COMPLETION BOND. A performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing the Lessee's telecominunications facilities within the public ways of the City or upon City property shall be deposited in the event construction is commenced. A. Except as provided below, the construction bond shall remain in force unti160 days after substantial completion of the work, as determined by the City, including restoration of public ways and other property affected by the construction. B. The construction bond shall guarantee, to the satisfaction of the City: (1) Timely completion of cO:Q.struction; (2) Construction in compliance with applicable plans, permits, technical codes, and standards; (3) Proper location ofthe facilities as approved by the City; (4) Restoration of the public ways and other public or private property disrupted, damaged, or otherwise affected by the construction. The construction bond shall warrant said restoration work for a period of 1 year; LEASE AGREEMENT - 11 (5) The submission of' as-built' drawings after completion of the work as required by this. Chapter; and (6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. 33. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Lessee, by operation of law or otherwise, without the prior written consent ofthe City, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. A. No Lease shall be assigned or transferred in any manner within twelve (12) months after the initial grant of the Lease, unless otherwise provided. B. Absent extraordinary and unforeseeable circumstances, system or integral part of a system shall be assigned or transferred before construction of the telecommunications facility has been completed. c. The Lessee and the proposed assignee or transferee of the system shall provide mid certify the following information to the City not less than sixty (60) days prior to the proposed date of transfer: (1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (2) Any other information reasonably required by the City; and D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to own, hold and operate the telecommunications facility pursuant to this Lease. E. Unless otherwise provided in this Lease, the Lessee shall reimburse the City for all direct and indired costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Lease. No approval shall be deemed approved until all such costs and expenses have been paid. F. Any transfer or assignment of the lease, system, or integral part of a system without prior written approval of the City under this Section or pursuant to the Lease shall be void and is cause for revocation of the lease. LEASE AGREEMENT - 12 G. Lessee shall make no assignment or transfer of this Agreement without obtaining the written consent of Lessor, which consent shall not be unreasonably withheld. H. Notwithstanding anything to the contrary herein, the City's approval and/or consent shall not be required for an assignment of the Agreement from the Lessee to another person or entity controlling, controlled by, or under common control with the Lessee. 34. [Intentionally Deleted] 35. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the City to use or occupy public ways of the City or City property may be terminated for the . following reasons: A. Lessee's construction or operation in the City or in the public ways of the City or upon City property without proper City authorization; B. Lessee's construction or operation at an illlauthorized location; C. Unauthorized substantial transfer of control ofthe Lessee; D. Unauthorized assignment of Lease; E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a substantial interest therein; F. Misrepresentation by or on behalf of the Lessee in any application or written statement upon which the City relies in making the decision to grant, review or amend said Lease; G. Abandonment oftelecommunications facilities in the public ways or upon City property; H. Failure to relocate or remove facilities as required in this Lease; I. Failure to pay taxes, compensation, fees or costs when and as due the City; J. Insolvency or bankruptcy ofthe Lessee; K. Failure to construct or operate in accordance with approved permits; and L. Violation of any material provision or term of this lease. LEASE AGREEMENT - 13 36. NOTICE AND DUTY TO CURE. In the event that Lessee is in violation of or defaults under the provisions of the Lease, the Lessee shall be given written notice of the .apparent violation, default or non-compliance, providing a short and concise statement ofthe nature and general facts of the violation, default or non-compliance, and providing the Lessee a reasonable period of time not exceeding 90 days to cure the violation. 37. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. If the City Council determines that a Lessee willfully violated or failed to comply with any of the provisions ofthis Lease after notice is given the Lessee by the City under the provisions of this Lease, then the Lessee shall forfeit all rights conferred hereunder and the Lease may be revoked or annulled by the City. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies and to recover damages and costs incurred by the City by reason of the Lessee's failure to comply. 38. NOTICE OF ENTRY ON PRIVATE PROPERTY. If directed by the City, at least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform permitted new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the City, upon the affected property by the Lessee. A door hanger may be used to comply with the notice and posting requirements ofthis Section. The Lessee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Provided, however, that nothing in this Lease shall permit the Lessee to unlawfully enter or construct improvements upon the property or premises of another. 39. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a Lease area; wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The City reserves the general right to see that the telecommunications facility ofthe Lessee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. Ifthe repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from the Lessee. LEASE AGREEMENT - 14 ---.- _.~---- - 40. LIENS. Lessee shall not permit any lien to be imposed upon the property of the City as a result of work done by or on behalf of user and shall indemnify and hold the City harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 41. MISCELLANEOUS. A. This agreement shall be governed by the laws ofthe State of Washington. B. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. c. Each party agrees to furnish the other, within thirty (30) days after request, such truthful estoppel information as the other may reasonably request. D. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Lease must be in writing and executed by both parties. E. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker. F. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. G. Any notice or demand required to be given herein shall be made by certified or registered mail; return receipt requested, to the address ofthe respective parties set forth below: LESSOR: LESSEE: City ofBremerton Seattle SMSA Limited Partnership Attn: Public Works & Utilities d/b/a Verizon Wireless Administrative Manager Attn: Network Real Estate 3027 Olympus Drive 180 Washington Valley Road Bremerton, W A 98310-4799 Bedminster NJ, 07921 The individuals identified in this paragraph shall be the specific point of contact for each party regarding all topics. Any change to this point of contact shall be delivered to the other party in writing by certified or registered mail, return receipt requested. All payments will be sent to the City Finance Office at 345 6th Street, Bremerton, W A 98337. LEASE AGREEMENT - 15 ---------- H. 'The City agrees to execute a Memorandum ofthis Lease Agreement which Lessee may record with the appropriate Recording Officer. The date set forth in the Memorandum of Lease is for recording purposes only and bears no reference to commencement of either term or rent payments. 42. FIRE PRECAUTIONS. Lessee will ensure that all Forest Protection Regulations and Fire Precaution Levels (IFPLs) are observed during closed season (April 15 - October 15). Lessee shall be responsible for checking IFPLs and keeping activities within those allowed for a specific IFPL. Washington State Department of Natural Resources regulates forest land activities and provides daily IFPLs vial telephone and the internet. 43. NONDISCRIMINATION. Lessee shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status or disability, except employment actions based on a bona fide occupational qualification. LESSEE Date: Seattle SMSA Limited Partnership d/b/a Verizon Wireless By: Cellco Partnership, its general partner By: Robert F. Swaine Its: West Area Vice President, Network CITY OF BREMERTON Date: CARY BOZEMAN, Mayor APPROVED AS TO FORM: ROGER A. LUBOVICH, City Attorney LEASE AGREEMENT - 16 ---------- STATE OF ARIZONA ) ) SS. COUNTY OF MARICOPA) On this day of , 20_, before me, the undersigned, a Notary Public in and for the State of Arizona, duly cotmnissioned and sworn, personally appeared Robert F. Swaine to me known to be an authorized representative of Cellco Partnership, general partner of Seattle SMSA Limited Partnership d/b/a Verizon Wireless, the limited partnership that executed the foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of Cellco Partnership, general partner of Seattle SMSA Limited Partnership d/b/a Verizon Wireless;, for the uses and purposes therein mentioned, and on oath stated that He is authorized to execute the said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Print or Type Name: Notary Public in and for the State of AZ, residing at My appointment expires: State of Washington ) ) ss. County of Kitsap ) On this day of , 19_, personally appeared Cary Bozeman to me known to be the Mayor of the City of Bremerton, a municipal corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument. In witness whereof! have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of Washington Residing at My commission expires: LEASE AGREEMENT - 17 SCHEDULE A BREWESTBREM-1 . 1/3 . I '. l' ~ Ot1.111 \ \ .:,' . - !-?\ . I 6 .1, rl \ Note: Access to the site is via existing ~ogging .roads a~~ of which are located on City of Bremerton property. LEGAL DESCRIPTION THAi PORTION OF SECnON 29, TO'flNSHIP 2'" NORTH, RANGE 1 EAST, W.M. KlTSAP COUNTY, WASHINGTON DESCRIBED AS FDLLOWSt COMMENCING AT THENOATHEAST c.OA/'lER OFSf\IO SECTION 29' THENCE SOUTH 00025'27" \tEST (OEAIIlNGS OASED ON TRUE NOATH) 253U9 FEET TO THE TAUE POINT OF OEGINNINGI THENCE NORTH 2302.'00" EAST 60,00. FEET: THENCE NORTH 66036'00" \tEST 50.00 FEET: THENCE SOUTH 2302~'00' \tEST 60.00 FEET! THENCE SOUTH 66036'00" EAST 50.80 FEET TO THE POINT OF OE6INNU4G. CONTAINING 3000 SQUARE FEET MORE OR LESS. \ ~- ~ DATE SUBMITTED: BILL # oS - at7 AGENDA BILL CITY OF BREMERTON Sf CITY COUNCIL ............................................................................................ SUBJECT: Committee Meeting Date: March 30, 2005 Communications Tower Lease Agreement COUNCIL MEETING Date: April 6, 2005 t3etweew fu tJ.'i-y ~~d FTf Cz>rp Department: PW & VtiI Presenter: Paul Lucas, Admin ~ Manager b7?P'\~ Phone: 2328 SUMMARY: The City currently leases either sites or towers to various communications organizations. The attached Lease Agreement is from FTP Corporation (KBRO Radio in Seattle). The current FTP lease will expire this June. The new lease will run for a period of 5 years. The current FTP lease will pay the City $513.00 (a CPI adjustment) (previously paid $494.63) per month with CPI adjustments annually. FTP is a radio tower only with no co-Iocations. ATTACHMENTS: FTPLeaseAgreement FISCAL IMP ACTS (Include Budgeted Amount): None APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: FISCALIBUDGET: ~~' - CONSENT AGENDA [8] OPERATIONS: ?il-- ,0 COUNCIL PRESIDENT: p~~ RECOMMENDED MOTION: That the City Council approve the attached Lease Agreement and authorize the Mayor to execute M. W 6YITeRt Cit3' Pooe;ies aDd Pi"><8eedttres. . ~ \..e.q t< ~ FTv? C-oV'f'oV'cd-t OIA- . COUNCIL ACTION: 0 Approve o Deny o Table o Continue o No Action ------------------- TELECOMMUNICATIONS FACILITIES LEASE AGREEMENT THIS LEASE AGREEMENT entered into by and between the City ofBremerton, a municipal corporation duly organized and existing under the laws of the State of Washington, as Lessor (hereinafter referred to as "City") and FTP Corporation (hereinafter referred to as "Lessee"). WITNE SSE TH: 1. PREMISES. The City leases to the Lessee real property located at the Tower and equipment site at Forest Ridge Park for housing, installing, constructing, operating and maintaining certain telecommunications facilities, legally described and/or depicted in Schedule A ("Premises"). Lessee accepts the Premises for such purpose, subject to the considerations, terms and conditions specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as "Lease"). 2. DEFINITIONS. For the purpose of this Lease, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings: "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers; "Public street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes, including forest access roads; "Public way" means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a permit or lease to occupy and use such streets and easements for telecommunications facilities; "Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering telecommunications service; "Telecommunications facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment storage structures and other appurtenances used or to be used to transmit, receive, distribute, provide, house or offer telecommunications services; LEASE AGREEMENT - 1 ------- -- - ----- - -------------------- "Telecommunications provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities; "Telecommunications service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. "Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities. 3. USES AND PURPOSES. Lessee shall have the use and occupancy of the Premises for the purpose of transmission and reception of telecommunication and signals in any and all frequencies using real property and telecommunications facilities approved in Schedule A Lessee shall be responsible for adherence to all federal, state and local regulations pertaining to the operation of a communications facility. Lessee shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities, as described in Schedule A after obtaining required permits and as approved by City on the Site Plan. City shall provide Lessee access to the Premises at all times adequate to service the Premises and the telecommunication facilities at all times during this Lease. Lessee agrees to provide the City with a scheduling outlining the frequency of required visits (e.g., quarterly maintenance check, monthly site cleanup, etc.) Lessee shall provide the City with a list of all authorized individuals who will have access to the Premises. Notification of changes to the list shall be provided to the City within 24 hours by telephone or fax from the point of contact identified in Section 43(G), which notice shall be followed by written notification pursuant to Section 43(G). Lessee shall be responsible for conducting appropriate background checks of all of their employees. Employees visiting the Premises shall be clearly identifiable as employees of the Lessee either by uniform identification badge or marked company vehicle. 4. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude the City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or other persons for telecommunications or any other purpose. 5. TERM OF LEASE. This Lease shall be valid for a term offive year(s) commencing July 1,2005 and terminating June 30,2010. LEASE AGREEMENT - 2 ---------- 6. RIGHTS GRANTED. This Lease does not convey any right, title or interest in the City property, but shall be deemed the right only to use and occupy the City property for the limited purposes and term stated in the Lease. Further, this Lease shall not be construed as any warranty of title. 7. INTERFERENCE WITH OTHER USERS. The Lessee acknowledges that the City may enter into leases with other tenants for their equipment and telecommunications facilities for the purposes of transmitting and receiving telecommunication signals from City property. The City, however, is not in any way responsible or liable for any interference with Lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the Lessee's use of the City property, and such use or operation was not in existence on the date of execution of this Lease, and the Lessee cannot resolve this interference with the other tenants, the City will, upon written request by Lessee, cause such interfering use to cease. Lessee understands that if its use interferes with a prior tenant, and the interference problem cannot be cured, this Lease may be terminated by the City pursuant to Sections 35 and 36. The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at Lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other City facilities located upon the City property subject to this Lease except those City antenna sites placed upon Lessee's facilities pursuant to Section 11.B. 8. OWNERSHIP AND REMOVAL OF IMPROVEMENTS. All buildings, landscaping and all other improvements, except telecommunications facility, shall become the property of the City upon expiration or termination of the Lease. In the event that the City requires removal of such improvements after termination of the Lease, such removal shall be accomplished at the sole expense of the Less~e and completed within 30 days after receiving notice from the City requiring removal of the improvements. Additional time may be granted upon the discretion of the City which approval shall not be unreasonably withheld. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall, at the City's option, if not removed by the Lessee upon 30 days written notice from the City, be removed and stored at the expense of Lessee. Stored telecommunications facilities that are not claimed by the Lessee within six (6) months from termination of the Lease shall become the property of the City. 9. CANCELLATION OF LEASE BY LESSEE. A. All Leases are contingent upon the Lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any LEASE AGREEMENT - 3 -- - - ------ - --- ---- - ------ --- ----------------- rents paid, without further obligation by giving 30 days prior written notice to the City. Lessee agrees to restore City property to original condition if cancellation is requested. B. In the event that the holder of a Lease determines that the City property is unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 180 days written notice to the City. However, no prepaid rent shall be refundable; except in the event any changes occur with respeCt to the City's use of the property subsequent to the effective date of this Lease (including but not limited to additional Lessees as permitted by the City) and such changes result in the property becoming unsuitable for Lessee's intended purpose. 10. COMPENSATION TO THE CITY. A. This Lease is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the Lessee; starting on the Commencement Date and on the first day of each month thereafter during the term of the Lease, Lessee shall pay rent at a rate of Five Hundred Thirteen and NollOO Dollars ($513.00) per month, prorated for any partial months. Substantial expansion of the initial configuration contained in Schedule A will result in review and possible re-negotiation of the rental rate contained herein. At the beginning of each successive year thereafter, the monthly rent shall automatically be adjusted based upon the CPI for all urban consumers, Seattle-Tacoma index (1982-84=100) as published by the Bureau of Labor Statistics for the last month for which statistics are posted prior to the effective date above. However, rent shall not, in any case, decrease, nor shall the annual rent increase by more than five (5) percent per year above the annual rent for the preceding year. Any payments received after the due date shall include a late payment penalty of 2% of the annual rental fee for each day or part thereof past the due date. B. Additional Consideration. City shall be allowed, at City's sole expense, to attach City's communication antennas to Lessee's telecommunications tower provided City first obtains Lessee's prior written consent for such attachments. Such consent shall not be unreasonably withheld. Lessee's approval for said attachments shall be contingent upon determining whether Lessee's tower is properly engineered to accommodate City's antenna system and such transmission shall not result in any impairment or diminution in the quality of Lessee's service. Further, said approval shall be given only after Lessee has reviewed and approved City's engineering plans for said antenna attachments in a location specified by Lessee. Approval shall not be unreasonably withheld. Upon written approval by Lessee, said attachments shall be installed by qualified licensed contractors and in accordance with Lessee's directives for the method of installment and with permits issued by all applicable governmental authorities having jurisdiction which shall first be obtained by City at its sole expense. City acknowledges and agrees that Lessee reserves the right to relocate City's antennas at any time(s) to accommodate modifications required for Lessee's future system requirements, provided such relocation shall provide equivalent quality of service after such relocation. LEASE AGREEMENT - 4 C. Rent Adjustment. On the fourth annual anniversary date of the Commencement Date of the Lease ("Rent Adjustment Date") the City may adjust the rent due under the Lease in accordance with the following procedure: If the City chooses to adjust the rent, the Rent for the remainder of the Lease term commencing on the Rent Adjustment Date shall be the Fair Market Rental Value. The term "Fair Market Rental Value" shall be the rental rate that comparable space for a wireless telecommunications facility (in terms of quality of location for a similar facility in a similar location) would command on the open market at the time of Rent Adjustment Date. Such amount shall be determined jointly by the City and Lessee through good faith negotiations. If the City determines that a rent adjustment is warranted, it shall so notifY Lessee in writing no earlier than one hundred eighty (180) days prior to the Rent Adjustment Date and no later than one hundred twenty (120) days prior to such date of the rental amount it proposes to commence on that date. Lessee shall respond in writing no later than thirty (30) days from receipt of the City's notice by accepting the proposed rent amount or if it determines that the proposed rent is unsatisfactory, it shall propose a suitable rental amount. The City and Lessee shall thereafter make.a good faith and diligent effort to agree on the rent adjustment amount no later than thirty (30) days after receipt by the City of Lessee's proposed rent adjustment. D. Pursuant to Section 28 Lessee shall pay to the City 50% of any and all sublessee rent for co-location on Lessee's tower. 11. AMENDMENT OF LEASE. Except as provided within the existing Lease, a new lease application and Lease shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application. 12. RENEWAL APPLICATION. A Lessee that desires to renew its Lease under this Article shall, not more than one hundred twenty (120) days nor less than sixty (60) days before expiration of the current Lease, file an application with the City for renewal of its Lease which shall include the following: A. The information required pursuant to Section 4; B. Any additional information required based upon elements of the current Lease agreement between the City and the Lessee; C. All deposits or charges required pursuant to City ordinances; LEASE AGREEMENT - 5 D. A non-refundable application fee in the amount of Five Hundred and NollOO Dollars ($500.00). The City reserves the right to extend the review period for the renewal application if additional information is required. 13. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease shall be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease have been cured, or a plan detailing the corrective action to be taken by the Lessee has been approved by the City. 14. IMPROVEMENTS. During the term of this Lease if Lessee wishes to substantially expand the initial configuration contained in Schedule A, Lessee will submit a new application pursuant to Section 4. 15. POLICE POWER. In accepting this Lease, the Lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. 16. INTERFERENCE WITH THE PUBLIC WAYS. The Lessee shall not locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities which interfere with public ways shall be moved by the Lessee, at the Lessee's cost, temporarily or permanently, as determined by the City Public Works and Utilities Director. J 17. REPAIR AND EMERGENCY WORK. In the event of an unexpected repair or emergency, the Lessee may commence such repair and emergency response work as required under the circumstances, provided the Lessee shall notify the City as promptly as reasonably possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. 18. MAINTENANCE OF LEASE FACILITIES. The Lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. Lessee shall not permit waste, damage, or injury to the premises including any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on ot adjacent thereto. Lessee shall not store any chemicals, hazardous or otherrwise, in the well head protection area. Lessee shall not restrict site access to City. City shall have the exclusive right to inspect the Lessee's telecommunications facilities and equipment at any time during the term of this Lease to ensure compliance with the terms and conditions herein; Provided, however, Lessee has the right to be present at all LEASE AGREEMENT - 6 inspections of Lessee' s telecommunications facilities and equipment, and City shall give Lessee at least 24 hours prior notice "f such intent. 19. SIGNAGE. Lessee shall display proper signage as required by the FCC as well as current signage on telecommunication facilities identifying Lessee, address and a 24 hour phone number. Signage shall be posted and clearly visible at all times. 20. RELOCATION OR REMOVAL OF FACILITIES. Within one hundred eighty (180) days following written notice from the Cjty, the Lessee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways or upon City property whenever the City Public Works & Utilities Director shall have determined that such removal, relocation, change or alteration is reasonable necessary for: A. The construction, repair, maintenance or installation of any City or other public improvement in or upon tpe public ways; and ( B. The operations of the City or other governmental entity in or upon the public ways. Additional time for removal or relocation may be granted at the discretion of the City which extension shall not be unreasonably withheld. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 21. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days following written notice from the City, Lessee or any person who owns, controls or maintains on behalf of Lessee any unauthorized telecommunications system, facility or related appurtenances within the public ways or real property of the City shall, at its own expense, remove such facilities or appurtenances from the public ways or property of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. Upon expiration or termination of the Lessee's Lease without approved extension or renewal; B. Upon abandonment of a facility within the public ways or real property of the City. Any property ofa Lessee shall be deemed.abandoned ifleft in place 30 days after expiration or termination of the Lease; C. If the system or facility was constructed or installed without the prior grant of a Lease; LEASE AGREEMENT - 7 D. If the system or facility was constructed or installed without the prior issuance of a required City pennits; and E. If the system or facility was constructed or installed at a location not pennitted by the Lease. Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such persons who may own, control, or maintain telecommunications facilities within the public ways or property of the City to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director, and all necessary permits must be obtained prior to such work. Upon authorized permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property in which event, Lessee shall have no further obligations or liability with respect to such property or facilities. The provisions of this Section shall survive the expiration, revocation, or tennination of the Lease granted hereunder. If the City does not authorize abandonment and Lessee fails to remove such facilities within thirty (30) days following notice, Lessee agrees to reimburse the City for any and all costs incurred by the City for facilities removal. 22. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the City and upon City property, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to Lesse~, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 13. DAMAGE TO FACILITIES. Unless directly and proximately caused by the willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not be liable for any damage to or loss of any telecommunications facility upon City property or within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within the public ways by or on behalf of the City. 24. RESTORATION OF PUBLIC WAYS, OTHER WAYS AND CITY PROPERTY. A. When the Lessee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, .or when Lessee, or any person acting on its behalf damages any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to City LEASE AGREEMENT - 8 -- - - ---- construction standards as adopted before the work was undertaken, unless otherwise directed by the City. Lessee shall obtain all requisite pennits for such work. B. If weather or other conditions do not pennit the complete restoration required by this Section, the Lessee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. The Lessee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. , D. The Public Works and Utilities Director shall be responsible for inspection and final approval of the condition of the public ways, other ways, and City property following any construction and restoration activities therein. Further, the provisions of this Section shall survive the expiratio"n, revocation, or tennination of this Lease. 25. FACn.ITIES MAPS. The Lessee shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of its telecommunications facilities within the public ways and upon City property. The Lessee shall provide the City with updated maps upon request by the City. 26. BOOKS, RECORDS AND MAPS. All books, records, maps and other documents, maintained by the Lessee with respect to its telecommunications facilities within the public ways and upon City property shall be made available for inspection by the City at reasonable times and intervals; Provided, however, that nothing in this Section shall be construed to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require the Lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 27. LEASED CAPACITY AND CO-LOCATION. Lessee shall have the right, with prior City approval, to sublet the premises consistent with this Lease; provided: A. The Lessee shall furnish the City with a copy of any such proposed lease or agreement between the Lessee and its sub-lessee; B. The sub-lessee has complied, to the extent applicable, with the requirements contained in this Lease; C. The Lessee owns and/or controls the tower facility located on City property; LEASE AGREEMENT - 9 D. The City and Lessee shall agree upon additional rental fee for sub-lessee hook-ups pursuant to Section 11.D. The City encourages co-location on existing telecommunications facilities and to that end will not unreasonably withhold approval of sub-leases. 28. UTll..ITIES. Electricity, HV AC and telephone service, or other utilities are to be provided to the Premises and Site at Lessee's expense and as outlined in Schedule A. City shall cooperate with Lessee in obtaining utility service. 29. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be responsible for paying real or personal property, excise leasehold, business and occupation, and/or other taxes or licenses which may in the future be assessed as a direct result of the Lessee's operations at the telecommunications facilities described herein. 30. INSURANCE. The Lessee shall, as a condition of the Lease, secure and maintain the following liability insurance policies insuring both the Lessee and the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the Lessee: A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: (1) $2,000,000.00 for bodily injury or death to each person; (2) $2,000,000.00 for property damage resulting from anyone accident; and (3) $2,000,000.00 for all other types of liability. B. Automobile liability for owned, non-owned and hired vehicles with a limit of $2,000,000.00 for each person and $2,000,000.00 for each accident; C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits.ofnot less than $2,000,000.00; E. The liability insurance policies required by this Section shall be maintained by the Lessee throughout the term of the Lease, and such other period of time during which the LEASE AGREEMENT - 10 Lessee is operating without. a Lease hereunder, or is engaged in the removal of its telecommunications facilities. The Lessee shall provide an insurance certificate, together with an endorsement designating the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any facilities pursuant to said Lease. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of the Lessee. The Lessee's insurance shall be primary insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Lessee's insurance and shall not contribute with it. The City shall be provided thirty (30) days advance notice of cancellation of any coverages required in 31.A. above; F. Within thirty (30) days after receipt by the City of said notice, and in no event later than fifteen (15) days prior to said cancellation or intent not to renew, the Lessee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section. 31. GENERAL INDEMNIFICATION. Lessee covenants not to bring suit against the City and hereby agrees to defend, indemnify, and hold harmless the City, its appointed and elected officers, employees, agents and volunteers from and against any and all liability, loss, costs, damage, and expense, including costs and attorney fees in defense thereof, and including claims by the Lessee's own employees to which the Lessee might otherwise be immune under Title 51 RCW, because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time resulting therefrom, sustained or alleged to have been sustained by any person or persons, and on account of damage to property, arising or alleged to have arisen directly or indirectly out of or in consequence of the performance of this Agreement, whether such injuries to persons or damage to property is due to the negligence of the Lessee, its agents, employees, representatives or assigns. This provision shall be inapplicable to the extent such damage or injury is judicially found to be caused by the sole negligence of the City. This provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated by the parties. Lessee assumes the risk of damage to its facilities located in the City's public ways, rights-of-way, easements, and property from activities conducted by the City, its officers, employees, agents, and volunteers. The Lessee releases and waives any and all claims against the City, its officers, employees, agents, and volunteers for damage to or destruction of the Lessee's facilities except to the extent any such damage or destruction is caused by the willful and malicious action of the City, its officers, employees, agents, or volunteers. 32. CONSTRUCTION AND COMPLETION BOND. A performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing the Lessee's telecommunications facilities within the public ways of the City or upon City property shall. be deposited in the event construction is commenced. LEASE AGREEMENT - 11 ------ A.' Except as provided below, the construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City, including restoration of public ways and other property affected by the construction. B. The construction bond shall guarantee, to the satisfaction of the City: (1) Timely completion of construction; (2) Construction in compliance with applicable plans, permits, technical codes, and standards; (3) Proper location of the facilities as approved by the City; (4) Restoration of the public ways and other public or private property disrupted, damaged, or otherwise affected by the construction. The construction bond shall warrant said restoration work for a period of 1 year; (5) The submission of 'as-built' drawings after completion of the work as required by this Chapter; and (6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. 33. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Lessee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on .such reasonable conditions as may be prescribed therein. A. No Lease shall be assigned or transferred in any manner within twelve (12) months after the initial grant of the Lease, unless otherwise provided. B. Absent extraordinary and unforeseeable circumstances, system or integral part of a system shall be assigned or transferred before construction of the telecommunications facility has been completed. c. The Lessee and the proposed assignee or transferee of the system shall provide and certify the following information to the City not less than sixty (60) days prior to the proposed date of transfer: LEASE AGREEMENT - 12 (1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (2) All information required of a lease applicant pursuant to Section 4 with respect to the proposed transferee or assignee; (3) Any other information reasonably required by the City; and (4) An application fee set by Section 4. D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to own, hold and operate the telecommunications facility pursuant to this Lease. E. Unless otherwise provided in this Lease, the Lessee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Lease. No approval shall be deemed approved until all such costs and expenses have been paid. F. Any transfer or assignment of the lease, system, or integral part of a system without prior written approval of the City under this Section or pursuant to the Lease shall be void and is cause for revocation of the lease. G. Lessee shall make no assignment or transfer of this Agreement without obtaining the written consent of Lessor, which consent shall not be unreasonably withheld. 34. TRANSACTIONS AFFECTING CONTROL OF LEASE. Any transactions which singularly or collectively result in a change of 50% or more of the ownership or working control of the Lessee, of the ownership or working control of the telecommunications facility, of the ownership or working control of affiliated entities having ownership or working control of the Lessee or of a telecommunications facility, or of control of the capacity or bandwidth of the Lessee's telecommunication system, facilities or substantial parts thereof: shall be considered an assignment or transfer requiring City approval pursuant to Section 34 hereof. Transactions between affiliated entities are not exempt from City approval. The Lessee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of Lessee's company. Every change, transfer, or acquisition of control ofaLessee's company shall cause a review of the proposed transfer. In the event that the City adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the Lease. Approval shall not be required for mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling, controlled by, or under common control with the Lessee. LEASE AGREEMENT - 13 -- 35. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the City to use or occupy public ways of the City or City property may be terminated for the following reasons: A. Lessee's construction or operation in the City or in the public ways of the City or upon City property without proper City authorization; B. Lessee's construction or operation at an unauthorized location; C. Unauthorized substantial transfer of control of the Lessee; D. Unauthorized assignment of Lease; E. Unauthorized sale, assignment or transfer of Lessee' s Lease, assets, or a substantial interest therein; F. Misrepresentation by or on behalf of the Lessee in any application or written statement upon which the City relies in making the decision to grant, review or amend said Lease; G. Abandonment of telecommunications facilities in the public ways or upon City property; H. ' Failure to relocate or remove facilities as required in this Lease; I. Failure to pay taxes, compensation, fees or costs when and as due the City; J. Insolvency or bankruptcy of the Lessee; K. Failure to construct or operate in accordance with approved permits; and L. Violation of any material provision or term of this lease. 36. NOTICE AND DUTY TO CURE. In the event that Lessee is in violation of or defaults under the provisions of the Lease, the Lessee shall be given written notice of the apparent violation, default or non-compliance, providing a short and concise statement of the nature and general facts of the violation, default or non-compliance, and providing the Lessee a reasonable period of time not exceeding 30 days to cure the violation. 37. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. If the City Council determines that a Lessee willfully violated or failed to comply with any of the provisions of this Lease after notice is given the Lessee by the City under the provisions of this LEASE AGREEMENT - 14 Lease, then the Lessee shall forfeit all rights conferred hereunder and the Lease may be revoked or annulled by the City. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies and to recover damages and costs incurred by the City by reason of the Lessee's failure to comply. 38. NOTICE OF ENTRY ON PRIVATE PROPERTY. If directed by the City, at least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform permitted new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the City, upon the affected property by the Lessee. A door hanger may be used to comply with the notice and posting requirements of this Section. The Lessee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Provided, however, that nothing in this Lease shall permit the Lessee to unlawfully enter or construct improvements upon the property or premises of another. 39. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted metho(js and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a Lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The City reserves the general right to see that the telecommunications facility of the Lessee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from the Lessee. 40. LIENS. Lessee shall not permit any lien to be imposed upon the property of the City as a result of work done by or on behalf of user and shall indemnify and hold the City harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 41. MISCELLANEOUS. A. This agreement shall be governed by the laws of the State of Washington. B. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. LEASEAGREEMENT - 15 ------ C. Each party agrees to furnish the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. D. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Lease must be in writing and executed by both parties. E. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker. F. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. G. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, to the address of the respective parties set forth below: LESSOR: LESSEE: City ofBremerton FTP Corporation Attn: Public Works & Utilities 71 YeslerWay Administrative Manager Seattle, Washington 98104 3027 Olympus Drive And also to: Bremerton, WA 98310-4799 FTP Corporation 1940 Fillmore Street San Francisco, California 94115 The individuals identified in this paragraph shall be the specific point of contact for each party regarding all topics. Any change to this point of contact shall be delivered to the other party in writing by certified or registered mail, return receipt requested. All payments will be sent to the above address. 42. FIRE PRECAUTIONS. Lessee will ensure that all Forest Protection Regulations and Fire Precaution Levels (IFPLs) ate observed during closed season (April 15 - October 15). Lessee shall be responsible for checking IFPLs and keeping activities within those allowed for a specific IFPL. Washington State Department of Natural Resources regulates forest land activities and provides daily IFPLs vial telephone and the internet. LEASE AGREEMENT - 16 43. NONDISCRIMINATION. Lessee shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status or disability, except employment actions based on a bona fide occupational qualification. LESSEE 1\ r /~) ~ ' (~,/ I Date: March 5, 2005 ' ~~-~Q ~. - ~~-~~ By: Bart Seidler, President CITY OF BREMERTON Date: CARY BOZEMAN, Mayor APPROVED AS TO FORM: ROGER A. LUBOVICH, City Attorney II II LEASE AGREEMENT - 17 , t l ~~ \ State of ) ) ss. County of ) " \ f J/ . t,V /" On this day of . 20, \ \' ./. personally appeared to me known to be *f" ",/ of the . . .. . a . ci \ .. // . . corporation, that executed the WIthin and foregomg mstrument, and ackn~e9ged saId mstrument to be the free and voluntary act and deed of said corporation, ~~r I)l uses and purposes therein mentioned, and on oath stated that he/she was authorized tol ~u(e said instrument. ,\ VJ-;r l \1"\ ,/ In witness ~hereofI have ~ set my hand and affixed my official seal the day and year first above wntten. !\ I I // i)\ _I'I'" / ,..,/ (i'l ,~ ,/ / :j"""'/// Notary Public in and for the State of I Residing at My commission expires: State of Washington ) ) ss. County of Kit sap ) On this day of , 19 , personally appeared Cary Bozeman to me known to be the Mayor of the City ofBremerton, a municipal corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument. In witness whereof! have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of Washington Residing at My commission expires: RECEIVED FOR FILING: PAULA JOHNSTON. City Clerk R:\LEGAL\Contracts\FORMS\Telecommunication Facilities Lease.doc LEASE AGREEMENT - 18 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ~~~~~ State of California } 55 County of SAN (;1. A b On ~iJtU cI;../, $' I' -z Ve:;S before me, K'~v" N 71;ftl5 IEJ(;)(..c1-&'N..- N",' , Date Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared _...~,.."'<=><<>~-.-.,...,.,.,...,..,.,"""'~~._"""".,,..=~_...---""..........,,.,,-"="'~ , Name(s) of Signer(s) o personally known to me / f C!1 proved to me on the basis of satisfactory evidence to be the person<s) whose nam~) is/ar6 subscribed "~""""'-'''''--~--~~---''''''l to the within instrument and acknowledged to me that {I &~~~\ KEVIN TABB WOLOHAN h he/she1t~~ executed the same in his/he1'lthe1r ~k1~-~;) CO!v1M. # 1449669 ~ authorized capacity(ies1, and that by his/h,ef/the'ir 0: \ \~ ~u NOTI'.Fi'i PUBLIC.. CALIFORNIA W U \ ' b,.",,;~/ SAN FRANCISCO COUNTY.._ N signatureJ$1 on the instrument the person(~, or the f ..::s~;:':.;,.;V Mv Corr:m. Expires December 3, 20uI 1\ J~~:/~,,_:~~::.-,~~~~,~~t( entity upon behalf of which the person..{s) acted, executed the instrument. ".I' ?'....:t f " WITNESS my ha9€fancreffr9f~1 seal. j"tJ:' ,/'" ~ /' ~ # /,,/. Idt:, / Place Notary Seal Above i 'U.(ft::,t._ ,/ ft? 11' Signatur'~ of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document. 4 ...- Title or Type of Document: L ~ t15'~ l 6b{ (€Jt-'\f!!:-,..../f Document Date: Number of Pages: ')(/ {" (..r Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: o Individual o individual o Corporate Officer - Title(s): o Corporate Officer - Title(s): o Partner - 0 Limited 0 General RIGHT THUMBPRINT o Partner - 0 Limited 0 General -- o Attorney in Fact OF SIGNER o Attorney in Fact . . Top of thumb here Top of thumb here o Trustee o Trustee o Guardian or Conservator o Guardian or Conservator C Other: o Other: Signer Is Representing: Signer Is Representing: ~~~~,',!;li~~,-~~~~ @2004National Notary Association. 9350 De Soto Ave., P.O. Box 2402' Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 FTP CORPORATION AM BROADCAST BANK TRANSMITTER LEGAL DESCRIPTION'OF PROPERTY ON WHICH ANTENNA IS SITED A portion of the SE quarter of the SW quarter of the SE quarter of Section 15, Township 24 N, Range IE, W.M. more particularly described as follows: BEGINNING at the SE corner of the SE quarter of the SW quarter of the SE quarter of Said Section 15; then N 89 00'22" W on the S line of Said Section 15 at a distance of 585.46 feet; thence N 0 , 59'38" E a distance of 254.81 feet to the true point of BEGINNING; thence N 67 10'07" W a distance of 45.00 feet; thence N 22 29'53" E " I , a distance of 35.00 feet; thence S 67 10'07" E a distance of 45.00 feet; thence S 22 39'53" W a distance of 35.00 feet to the true point of BEGINNING; continuing 0.036 acres. Schedule A lO I) I~ '- 11 10 , 9 , R 1 ~ l ~ J 1 \ - I . } . 7 . 9 10 II 11 " ,. " I b ., JI 1 J ~M~T' \:A. 'I , ' ;\ ""_ ,~ f ) ('" J/\ .r"'\ I ------- - ---------- " 9' SI ~I fL r I II 01 6 \I t , ~ ~ t l I I -- r ( to ~ Q L G 6 , , - ~.. JoAe.NT u~" " \ A -~ ) (I, . f\ i~/\J' DATE SUBMITTED: 2-16-05 BILL # 05-0tOO AGENDA BILL CITY OF BREMERTON ~A CITY COUNCIL .fre;~1~4=iDi7..Ai;:.~9tf~................................................................, SUBJECT: PUBLIC HEARING AND Committee Meeting Date: February 23rd, 2005 RESOLUTION ON SURPLUS AND SALE COUNCIL MEETING Date: l\4afeh2Dd, 2005- ~-fo-oS OF PUBLIC UTILITY PROPERTY Department: Public Works & Utilities Presenter: Phil Williams Phone: 473-5315 SUMMARY: The City received an offer from Bealko, Inc. to purchase the Tracyton Watershed in late November, 2004. The unsolicited offer was taken to the City Council for consideration on December 22,2004. Staff recommendation at that time was to declare the property surplus and authorize the Mayor to sign a purchase and sale agreement. The Council directed staff to work with the neighbors who had expressed concerns over the sale to conduct a public informational meeting near the site and then place the item back on the council agenda for re-consideration. That meeting was held on January 27th and attended by approx. 40 people. The property is not currently used for public utility service nor will it be required for providing public utility service in the future. In the opinion of staff the offer to purchase the property is reflective of its fair market value. Staff recommends the purchase and sale agreement be signed and if the sale is closed that any remaining concerns be addressed during the required environmental reviews that will be conducted during the development process itself. ATTACHMENTS: Summary of 1/27/05 Meeting, Resolution and Memo from City Attorney FISCAL IMP ACTS (Include Budgeted Amount): The public utility would receive the sum of $2,900,000 (less fees and costs) from the sale ofthe property and the property would be returned to the tax rolls. The potential purchasers have indicated a desire to annex the property into the City. APPROVALS: DEPARTMENT DIRECTOR. CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: FISCAL/BUDGET: ~~' CONSENT AGENDA 0 OPERATIONS: :dA-~ va..! COUNCIL PRESIDENT: y ~ Aft1 ~ .-..) lV RECOMMENDED MOTION: . . '-e.d F()~V' CI.. dtLtt. -h:> Ge. d':e-fev'll\l\\ i'\. Move to"continue to"ApriI6, 20Q.S Resolution No. 2956 to surplus public utility property and the purchase and sale agreement for the property known as the Tracyton Watershed. . COUNCIL ACTION: 0 Approve o Deny o Table. o Contin~e o No Action ---- Office of the City Attorney Roger A. Lubovich, City Attorney Memorandum To: City Council ~- - From: Roger A. Lubovi He: Offer to Purchase Ci Date: December 16, 2004 The City has received an offer to purchase the 38 acre utility property formerly known as he Tracyton Watershed property located northwest of the intersection of Sugar Pine Drive and Pine Cone Drive. The following documents are presented for your review: . Commercial & Investment Real Estate Purchase & Sale Agreement . Vacant Land Addendum to Commercial & Investment Real Estate Purchase & Sale Agreement . Addendum! Amendment to Purchase and Sale Agreement A summary of the terms of the above agreements follows: . Purchase price: $2.9 million . Earnest money: $145,000 promissory note . City to pay a 4% Commission ($116,000) . The tank and easement areas are excluded from the sale . 120 day inspection contingency period . Transaction will close 45 days after plat inspection contingency is removed . Closing may be extended for 10 periods of 60 days each upon payment of a $10,000 extension fee in cash for each extension which is applied to the purchase price . Closing will occur no later than November 26, 2006 . City must make records available within 10 days of acceptance . The sale is not contingent upon annexation . The sale is contingent upon the selling price meeting or exceeding the appraised value . The property has a Comprehensive Land Use designation of Low Density Residential (LDR) Meeting Summary Tracy ton Watershed Public Meeting Holy Trinity Catholic Church January 27th, 2005 6:30 - 8:00 pm Phil Williams I attended the public Meeting organized by the Tracyton Watershed neighbors on Thursday, January 27ili along with Matthew Keough with DCD. There were a total of approximately 40 people in attendance. Many were nearby neighbors of the property (both inside and outside city limits). There were quite a number of participants that did not live in the immediate vicinity of the property but were interested in the issues raised by its proposed sale, including some who represented land trusts. A few had traveled from Bainbridge Island to attend. The meeting was initiated by Scott Groulik. He is a neighbor of the watershed property and testified before the council in December during your first discussion ofthis issue. He explained the purpose of the meeting and outlined the proposed agenda. He introduced Jim Trainor from Kitsap Trees and asked him to communicate what he had been able to learn about the proposal. Mr. Trainor spent his time providing information and suggesting ways the group could be successful in opposing the development of the property. He suggested they contact the Washington Department ofFish and Wildlife and express concern over the loss of habitat for Piebold (sp) Deer, Black Bears, and potentially Bald Eagles. He also had arranged to walk the property with a representative from WDFW and had discussed with them the appropriate setbacks from the stream that should be mandated by that agency. I do not believe anyone from the City of Bremerton was contacted prior to those visits. Mr. Trainor also encouraged those in attendance to contact the Suquamish Tribe and seek their support to declare the property of cultural and historic interest. He suggested they try to get the trees on the property declared "Historic Structures". It is not certain what specific regulation he was referring to that would accommodate that approach. He encouraged them to work through the County Commissioners to get the property declared open space in the County's Comprehensive Plan. Matthew and I then had a chance to briefly explain who we each were and where this issue was in the public process and what some of the considerations were regarding jurisdiction over the property, City vs. County zoning subtleties, how the City had acquired the property, etc. We then listened to comments and tried to answer as many questions as we could. Those in attendance were very polite and respectful but had many concerns about its proposed sale to a developer. Most of these seemed to fall into two broad categories, environmental concerns and loss of readily accessible open space that they have enjoyed for many years. Matthew and I explained that prior to development the environmental issues would need to be addressed thoroughly under State Environmental Policy Act procedures. We also pointed out that the property is currently zoned for residential development in both the applicable County Comprehensive Plan as well as in the City of Bremerton's proposal for the area under GMA. Neither agency has proposed the area as open space or park land. I told those in attendance I would place this item back on the Council agenda and would let them know about the date of that meeting. I encouraged them to attend and express their opinions and concerns directly. RESOLUTION NO. ~C( 5 (p A RESOLUTION of the City Council of the City of Bremerton, Washington, declaring certain public utility property surplus to the City's needs and approving a sale of the property in accordance with the provisions of BMC 2.78.040 and RCW 35.94.040. WHEREAS, the City has received an offer to purchase the public utility property depicted in Exhibit A and legally described in Exhibit B from Bealko, Inc., for $2,900,000, which sum is the fair market value of the property; and WHEREAS, the City Council has determined that the property is surplus to the City's needs and is not required for providing continued public utility service; and WHEREAS, pursuant to BMC 2.78.040 and RCW 35.94.040, a public hearing was held on March 2,2005 relating to the proposed surplus and sale of the property; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The public utility property legally described in Exhibit B is hereby declared surplus to the City's needs and is not required for providing continued public utility servIce. SECTION 2. The sale of the above-mentioned property creates a benefit to the City and the greater community and therefore a negotiated sale is hereby authorized pursuant to BMC 2.78.040. SECTION 3. The Director of Public Works and Utilities and the City Attorney are hereby authorized to finalize a purchase and sale agreement with substantially the same terms and conditions as set forth in the proposed agreement attached as Exhibit C authorizing the sale of the property to Bealko, Inc. for $2,900,000. SECTION 4. . The Mayor is authorized to execute any and all documents, including but not limited to statutory warranty deeds and real estate excise tax affidavits, necessary to complete the transaction. 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. 1 Surplus and Sale of Public Utility Property J SECTION 6. Effective Date. This Resolution shall take effect and be in force immediately upon its passage: PASSED by the City Council ofthe City of Bremerton, Washington this_ day of ,2005. DAREN NYGREN, Council President APPROVED AS TO FORM:. ATTEST: ROGER A. LUBOVICH, City Attorney P AULA JOHNSTON, City Clerk R\LEGAL\Files\Current Active Files\Tracyton Watershed Sale\Surplus and Sale Resolution.doc 2 Surplus and Sale of Public Utility Property >- i l- n::: W 0.. 0 n::: 0... (0 ~ I 1-- -'" (~ .-' ::t ~ \1\ I ViewPoint Realty @Copyright1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 11 of 11 PURCHASE & SALE AGREEMENT .-- [Legal Description] SW 1/4 NW1J4 EXC FDP BAT NW COR OF SO SEC TH S2*STOSW 2778.1SFT TO W 1/4 COR OF SO SEe TH N89*S8'24E S60SF TH N2*STOSE 400FT TO POB TH CONT N2*ST05E 220FT TH S89*S8'24W 220FT TH TH E I TO POB TGW & SUBJ TO ESMTS SECT. Escrow to verify and insert Exact LeQal Description here. EXHIBIT B INITIALS: Buyer ".' (. i"L Date jl/7..)/di,;1- Seller Date Buyer Date Seller Date I VIEWPOIN'-r REALTY "Where your VIEWPOR-IT is the most important" "_ 0 -",-",=="""",",='~~==?IZ"~~ __......___ _ ~"""'"-~_~~~~~_. -- ~. ~"-~.-= CONFIDENTIAL TO: MAYOR C. BOZEMAN AND CITY COUNCIL MEMBERS CITY OF BREMERTON " C/O: ROBERT A. LUBOVICH CITY ATTORNEY ; PURCHASE OF WATERSHED TAX ACCOUNT NO. 0224012003 2008 (38.89 ACRES) NOVEMBER 24, 2004 ,~r-""=,"""",==""."""'-"'~~.=.f'.~=.'=''''-----''=","''~~,~"",'-O",==~",,-~-,,~=,=,""=-_~"-"",""_=""""",~===,,,,,,,,.,,,~-=>-=..=~~-=-""~___^"'~.,,,,,,,,,"-""'''''-''''''=''-=_'''','','''''i:O"",<>""'-'=C:=<=''''_'''-'''''=.l~,<:>r-".,''''~'"''',=="="""",,,,,,,,:,= 21107 S R 410 Hwy East I Suite G-2 I Bonney lake I Washington I 98390 Phone: (253) 862-5970 I FAX: (253) 862-5969 Emall: viewpolntrealty@aottiNiHIBIT C www .viewpointr~}~ !tY,J~om VIEWPOI~T REALTY "Where your VIEWPOINT is the most important" ...--.....- ~... ~~-=..... ..~....--..... November 24, 2004 HAND DELIVERED TO: Mayor C. Bozeman AND: City Council Members C/o: Mr. Roger A. Lubovich .' ':;:~f j' : '; } City Attorney i .t \ ~ <; , . . 345 6th Street, Suite 600 Bremerton, Washington 98337 RE: Offer to Purchase "Watershed" property (the Subject Property). Tax Account No. 0224 012 003 20 08. (38.89 +- Acres) Dear Mayor Bozeman, Distinguished Council Members & Mr. Lubovich, Esquire: We have attached our Client's Purchase & Sale Agreement (PSA) for the Subject Property of approximately 38.89+- acres mentioned above and owned by the City of Bremerton.(Excluded from the purchase is the "water tank area & access".) Our Client has preliminarily investigated the Subject Property and would like to offer TWO MILLION NINE HUNDRED THOUSAND DOLLARS ($2,900,000) and enter into an extensive 120 day feasibility study in accordance with the PSA. In good faith after the feasibility study (120 days); our Client's earnest money of $145,000 would be non-refundable and, Buyer would allow $10,000 increments to be released to the City of Bremerton during each 60 day period as the transaction moves to closing. We, Viewpoint Realty, currently work very closely buying, selling & leasing property for the City of Bonney Lake (Mayor Robert Young) and therefore; we have extended the same courtesy to the City of Bremerton by modifying our raw-land commission from 10% to 4%. Furthermore, we look forward to working together with the City of Bremerton 0 hIs. transaction and many others to come. Time is of the essence. ., ~) , ...- "<' Since " / ./ .... ...... f/ ~ran~ . . ~~'~ - Designated Broker Encl: Purchase and Sale Agreement Vacant Land Addendum Purchase & Sale Agreement Note "The Law of Real Estate Agency." - pamphlet. CC: Bealko Inc. ~___ T. L."yander ~ool, Const., & Dey:', A~visQr to ~he Desig!latec!.~r.Qker._______~ 21107 S R 410 Hwy East I Suite G-2 I Bonney Lake I Washington I 98390 Phone: (253) 862-5970 I FAX: (253) 862-5969 Email: viewpointrealty@aol.com www.viewpointrealty.com ViewPoint Realty @Copyright 1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390. All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 Page 1 of 11 COMMERCIAL & INVESTMENT REAL.ESTATE PURCHASE & SALE AGREEMENT This has been prepared for submission to your attorney for review and approval prior to signing. No representation is made by licensee as to its sufficiency or tax consequences CBA Text Disclaimer: Text deleted by licensee indicated by strike. New text inserted by licensee indicated by small capital letters. Date: November 24th 2004 ,- The undersigned Buyer, Bealko Inc.. and/or assianee , agrees to buy and Seller agrees to sell, on the following terms, the commercial real estate and all improvements thereon (collectively, the "Property") commonly known as Tax Account No. 0224 012 003 20 08 (38.89+- Acres)., however at Buyer sole cost: Buyer shall identify and exclude the "Water Tank Property" ("WTP") (includinQ easement access) which Buyer and EscrowlTitle shall identify. Thereafter. Escrow shall obtain Buver and Seller written approval of the "WTP" within 90 days of Mutual Acceptance in the City of Bremerton, Kitsap County, Washington, legally described on attached Exhibit A. (Buyer and Seller authorize the Listing Agent or Selling Licensee to insert and/or correct, over their signatures, the legal description of the Property.) 1. PURCHASE PRICE. The total purchase price is TWO MILLION NINE HUNDRED THOUSAND Dollars ($2.900.000), including the earnest money, payable as follows (check only one): [gI All cash at closing, including the earnest money, with no financing contingency. o fl.N cash at closing, including the e3mest money, contingent on ney.' financing under Section .1a be/oll'.'. o $ I % of the purchaso price in cash 3t closing, including the e3mest money, with the b:J!ance of the , purchase prica p3id as rOHal/iS (check one or both, 35 applicable): 0 Buyer's assumption of any unde.'1ying not-e and deed of trust, or roa/ estate contract, under Section 4b below; 0 Buy-er's deU'/ery at closing of a promissory nota for the balance of t.f:1e purchase price, secured by a deed of trust encumbering the Property, :JS described in Soction 4c below. o Other: 2. EARNEST MONEY. Buyer agrees to deliver the earnest money $145.000 in the form of 0 Cash o Personal check [gI Promissory note 0 Other: - If the earnest money is in the form of a promissory note, it shall be due no later than: [gI ~ days after mutual acceptance. o Upon removal of the inspection contingencies in Section 5 below. o Other:_. The earnest money shall be held by o Selling Licensee [gI Closing Agent. Buyer shall deliver the earnest money no later than: o _ days after mutual acceptance. o Upon removal of the inspection contingencies in Section 5 below. [gI Other: Upon removal of the inspection continQencies in Section 5 below: Buver shall cause TEN THOUSAND DOLLARS ($10,000) to be released to Seller each sixty (60) days in accordance with the attached "Vacant Land Addendum to Commercial Investment Purchase & Sale Aareement" dated November 24th. 2004. Selling Licensee may, however, transfer the earnest money to Closing Agent. INITIALS: Buyer 116 t> if j"l/{ () r Date Seller Date n....__ r"'\_.a._ ""_11__ r<I._.a._ ViewPoint Realty @Copyright 1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 . All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 2 of 11 PURCHASE & SALE AGREEMENT If the earnest money is to be held by Selling licensee and is over $10,000, it shall be deposited to: 0 Selling licensee's pooled trust account (with interest paid to the State Treasurer) o A separate interest bearing trust account in Selling Licensee's name. The interest, if any, shall be credited at closing to Buyer whose Social Security or taxpayer 10 Number is: _. If this sale fails to close, whoever is entitled to the earnest money is entitled to interest. Selling Licensee shall deposit any check to be held by Selling Licensee within 3 days after receipt or mutual acceptance, whichever occurs later. Buyer agrees to pay financing and purchase costs incurred by Buyer. If all or part of the earnest money is to be returned to Buyer and any such costs remain unpaid, Selling licensee or Closing Agent may deduct and pay them therefrom. Unless otherwise provided in this Agreement, the earnest money shall be applicable to the purchase price and shall be non-refundable except where a condition to Buyer's obligation under this Agreement is not satisfied through no fault of Buyer. 3. EXHIBITS AND ADDENDA. The following Exhibits and Addenda are made a part of this Agreement: Exhibit A - Legal Description [gI Earnest Money Promissory Note, CBA Form EMN o Promissory Note, LPB Form No. 28A1CBA Form N1-A o Short Form Deed of Trust, LPB Form No. 20 o Deed of Trust Rider, CBA Form OTR o Utility Charges Addendum, CBA Form UA o FIRPTA Certification, CBA Form 22E o Assignment and Assumption, CBA Form PS-AS o Addendum/Amendment, CBA Form PSA o Back-Up Addendum, CBA Form BU-A [gI Vacant Land Addendum, CBA Form VLA o Other_ D Other_ 4. FINANCING. a. Application for Nelli Financing. !f payment of the purchase price is contingent on Buyer obtaining new financing, then Buyer's obligation to close is condit.'oned upon Buyer accepting :1 written commitment for financIng. Buyer wfU not reject thoso torms of a commitment which pro'Ade for a loan amount of at least or % of the purchase price, interest not to exceed percent ( %) per annum, a payment schedule ca!ling for monthly paymonts amortIzed over not less than (---1 years, and total placement foes and points Rot more than percent ( %) of the Joan amount. Buyer shall mako immediat-o app!.'c:1tion for said commitmont, pay required costs ::md make a good faith effort to procure such financing. This /\greement shalf termInate and Buyer shall receivo a refund of the earnest money unless Buyer gi'les SeJl.or written notice that this condition is satisfied or Waived on or bofore (----.J cklys (60 cklys, if not completed) fOlfoV'vqng mutual acceptance of this /\greoment. b. Assumptl(m of Jixisting Financing. !f paymant of the purch3se price includes Buyer's assumption of a note and mortgaga or deed of trust, or a re3! estate contract, SeNor shall promptly detiw;}{ to Buyer a copy of the unck){lying debt instrument(s) to be assumed, and Buyer shalf be deemed to ha'le approved a!l of the terms of the debt instrument(s) unloss Buyer gh'-es notice of disoppro'/al vlithin fivo (5) days aftar receiving such instrumont(s). If any of the debt instrument(s) requires the consent of a third party to tho assumption by Buyer, then Buyer shall 3pply far such consant within se'len (7) days aft{jr receiving the debt instrument(s). Upon Bl:lyor's request, SaUer shalf assist Buyer by requesting the third party's consont to the assumption on Buy.er's behalf. This I\greement shaY terminate and Buyer shaH rooei'/e a refund of the aamost money unless Buyer gives SeUer written notIce wi#tin (--Y days (30 days, if not completed) of recei'ling the debt instrument(s) st-ating that such GfmSent Is availabie, Buyer shaN P3Y any 3ssumption foos or other out of pocket expensas attributable to the assumption of iRe-underlying indoo.tedness. INITIALS: Buyer ;'2-G.i> Date 1/ /7.- ;'/6 5- Seller Date Buyer Date Seller Date ViewPoint Realty @Copyright 1999 ~ 21107 SR410 Commercial Brokers AsSOCiation Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL It INVESTMENT REAL ESTATE Page 3 of 11 PURCHASE & SALE AGREEMENT c. Seller Financing. !f Seifer is financing a portion of the purchase price by promissory note and deed of trust, unless different forms 3.'"0 attached to this Agreement, Buyer shaN e-XOOl.:/te ami submit to the Closing Agent: (i) LPB FOFm No. 28l'. Promissory Note and the DUE ON SALE and COMMERC!AL PROPERTY optional clauses in that form shaN apply; (N) UCC 1 Financing Stat-oment oovering the personal property described iA Section 14 below; (iii) LPB Form ."./0. 20 Short Form Deed of Trust; and (iv) CM Form No. DTR Deod of Trust Rider. Tho promissory noto shaH bear interest at the rat~ of % per annum, and shalt be payable as follolt/-S (cheese one): 0 monthly instal/ments of interest only, 0 monthly instaNments of $ , 0 equal montf:1!y instaHments of principal and interest in an amount sufficient to fut!y amortize the outstanding principal baJance at the stat~d interost r-am ov~r y~ars, 0 other _ . paymonts shat! commonce on the first day of tho first month after closing and continuing on the same day of Dach succeeding month unW (Ghsoso OR&): 0 ~ months from the date of closing, 0 other ----' on which data a!! outstanding principa! and interest shal! be due. The principal shall, at Seller's option, boar interest at the rate of % per annum (18% or the maximum rate a!!oV'led by !aw, whichever is less, if not fiNed in) fi.I:1ring 3ny period of Buyer's default. !f Sa!/er recsi'leS any monthly payment more than days (15 days if not fi/!.ed in) after its fi.I:1e rote, then a tate payment charge of $~ % of the delinquent amo~mt (5% of the de!inquent amount if not fmed in) shal! be added to the schefi.l:1,fed payment. Buyer shall have _ days (5 days if not fmod in) after written notice to curo a default bofore Seller may declare a.'! outstanding sums to be immediately fi.I:1e and payable. (Note to Buyer and Seller: If the Property is currently used primarily for agricultural purposes, then a nonjudicial foreclosure/forfeiture remedy is available to Seller only by using a real estate contract and is not available with a deed of trust. ) d. Section 1031 Like-Kind Exchange. If either Buyer or Seller intends for this transaction to be a part of a Section 1031 like-kind exchange, then the other party agrees to cooperate in the completion of the like-kind exchange so long as the cooperating party incurs no additional liability in doing so, and so long as any expenses (including attorneys fees and costs) incurred by the cooperating party that are related only to the exchange are paid or reimbursed to the cooperating party at or prior to closing. 5. INSPECTION CONTINGENCY. This Agreement shall terminate and Buyer shall receive a refund of the earnest money unless Buyer gives written notice to Seller within 120 days (20 days if not filled in) of mutual acceptance of this Agreement stating that Buyer is satisfied, in Buyer's reasonable discretion, concerning all aspects of the Property, including without limitation, its physical condition; the presence of or absence of any hazardous substances; the contracts and leases affecting the property; the potential financial performance of the Property; the availability of government permits and approvals; and the feasibility of the Property for Buyer's intended purpose. Ifsuch notice is timely given, the inspection contingencies stated in this Section 5 shall be deemed to be satisfied. a. Books, RecOrds, leases, Agreements. Seller shall make available for inspection by Buyer and its agents as soon as possible but no later than ten (10) days after mutual acceptance of this Agreement all documents available to Seller relating to the ownership, operation, renovation or development of the Property, including without limitation: statements for real estate taxes, assessments, and utilities; property management agreements, service contracts, and agreements with professionals or consultants entered into by the Seller or any predecessor in title to the Seller; leases of personal property or fixtures; leases or other agreements relating to occupancy of all or a portion of the Property and a schedule of tenants, rents, and deposits; plans, WETLAND STUDIES, specifications, permits, applications, drawings, surveys, studies and maintenance records; and accounting records and audit reports. Buyer shall determine within the contingency period stated in the preceding introductory paragraph whether it wishes and is able to assume, as of closing, all of the foregoing leases, contracts, and agreements which have terms extending beyond closing. Buyer shall be solely responsible for obtaining any required consents to such assumption. Seller shall transfer the leases, contracts and agreements as provided in Section 17 of this Agreement. I INITIALS: Buyer ,21; ,,, Date I /y Seller Date 111'1- J(,p Buyer Date Seller Date I ViewPoint Realty @Copyright 1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 , CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 4 of 11 PURCHASE & SALE AGREEMENT b. Access. Seller shall permit Buyer and its agents, at Buyer's sole expense and risk to enter the Property at reasonable times after legal notice to tenants, to conduct inspections concerning the Property and improvements, including without limitation, the structural condition of improvements, hazardous materials (limited to a Phase I audit only), pest infestation, soils conditions, sensitive areas, wetlands, or other matters affecting the feasibility of the Property for Buyer's intended use. Buyer shall schedule any entry onto the Property with Seller in advance. Buyer shall not perform any invasive testing or contact the tenants without obtaining the Seller's prior written consent, which shall not be unreasonably withheld. Buyer shall restore the Property and improvements to the same condition they were in prior to inspection. Buyer agrees to indemnify and defend Seller from all liens, costs, claims, and expenses, including attorneys' and experts' fees, arising from or relating to entry onto or inspection of the Property by Buyer and its agents. This agreement to indemnify and defend Seller shall survive closing. Buyer may continue to enter the Property and interview tenants in accordance with the foregoing terms and conditions after removal or satisfaction of the inspection contingency only for the purpose of re-sale, leasing or to satisfy conditions of financing. 6. TITLE INSURANCE. a. Title Report. Seller authorizes Lender and Listing Agent, Selling Licensee or Closing Agent, at Seller's expense, to apply for and deliver to Buyer a [gI standard D extended (standard, if not completed) coverage owner's policy of title insurance. If an extended coverage owner's policy is specified, Buyer shall pay the increased costs associated with that policy including the" excess premium over that charged for a standard coverage policy, and the cost of any survey required by the title insurer. The title report shall be issued by Land Title Company. b. Permitted Exceptions. Buyer shall notify Seller of any objectionable matters in the title commitment or any supplemental report within ten (10) days after receipt of such commitment or supplement. This Agreement shall terminate and Buyer shall receive a refund of the earnest money, less any costs advanced or committed for Buyer, unless (a) within ten (10) days of Buyer's notice of such objections, Seller agrees to remove all objectionable provisions, or (b) within fifteen (15) days after Buyer's notice of such objections, Buyer notifies Seller in writing that it waives any objections which Seller does not agree to remove. The closing date shall be extended to the extent necessary to permit time for these notices. Those provisions not objected to or for which Buyer waived its objections shall be referred to collectively as the "Permitted Exceptions." The title policy shall contain no exceptions other than the General Exclusions and Exceptions common to such form of policy and the Permitted Exceptions. P~~'P /h..J i) (<.t::fPL..Ih:eD'- 5"~ At> \)~D l1 ifI.1 7. CLOSING OF SALE. 1:l:Ii8 sale s,",all be clesee en er BefQflit Novemb9r 24th, 200~ ("closing") by L.aRd-:rnte & ~&crow ("Clo!';ing ag9Flt"). Buyer and Seller will, immediately on demand, deposit with Closing Agent all instruments and monies required to complete the purchase in accordance with this Agreement. "Closing" shall be deemed to have occurred when all documents are recorded and the sale proceeds are available to Seller. Time is of the essence in the performance of this Agreement. 8. CLOSING COSTS. Seller shall pay the excise tax and premium for the owner's standard coverage title policy. Seller and Buyer shall each pay one-half of the escrow fees. Real and personal property taxes and assessments payable in the year of closing; rents on any existing tenancies; interest; mortgage reserves; utilities; and other operating expenses shall be pro-rated as of closing. Buyer shall pay all costs of financing including the premium for the lender's title policy. Security, cleaning, and any other unearned deposits on tenancies, and remaining mortgage or other reserves shall be assigned to Buyer at closing. The real estate commission is due on closing or upon Seller's default under this Agreement, whichever occurs first, and neither the amount nor due date thereof can be changed without Listing Agent's written consent. a. Unpaid Utility Charges. Buyer and Seller [gI WAIVE D DO NOT WAIVE the right to have the Closing Agent disburse closing funds necessary to satisfy unpaid utility charges affecting the Property pursuant to RCW 60.80. If "do not waive" is checked, then attach CBA Form UA ("Utility Charges" Addendum). If neither box is cheeked, then the "do not waive" option applies. INITIALS: Buyer It? lS Date JI!z-J/ay Seller Date Buyer Date Seller Date ViewPoint Realty @Copyright1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBAForm PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/0~ COMMERCIAL & INVESTMENT REAL ESTATE Page 50f11 PURCHASE & SALE AGREEMENT 9. POST-CLOSING ADJUSTMENTS, COLLECTIONS, AND PAYMENTS. After closing, Buyer and Seller shall reconcile the actual amount of revenues or liabilities upon receipt or payment thereof to the extent those items were prorated or credited at closing based upon estimates. Any bills or invoices received by Buyer after closing which relate to services rendered or goods delivered to the Seller or the Property prior to closing shall be paid by Seller upon presentation of such bill or invoice. At Buyer's option, Buyer may pay such bill or invoice and be reimbursed the amount paid plus interest at the rate of 12% per annum beginning fifteen (15) days from the date of Buyer's written demand to Seller for reimbursement until such reimbursement is made. Rents collected from each tenant after closing shall be applied first to rentals due most recently from such tenant for the period after closing, and the balance shall be applied for the benefit of Seller for delinquent rentals owed for a period prior to closing. The amounts applied for the benefit of Seller shall be turned over by Buyer to Seller promptly after receipt. 10. OPERATIONS PRIOR TO CLOSING. Prior to closing, Seller shall continue to operate the Property in the ordinary course of its business and maintain the Property in the same or better condition than as existing on the date of mutual acceptance of this Agreement, but shall not be required to repair material damage from casualty except as otherwise provide in this Agreement. Seller shall not enter into or modify existing rental agreements or leases (except that Seller may modify or terminate residential rental agreements or leases in the ordinary course of its business), service contracts, or other agreements affecting the Property which have terms extending beyond closing without first obtaining Buyer's consent, which shall nC)~ be unreasonably withheld. 11. POSSESSION. Buyer shall be entitled to possession, subject to existing tenancies (if any), ~ on closing 0 _ (on closing, if not completed). 12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to Buyer that, to the best of Seller's knowledge, each of the following is true as of the date hereof and shall be true as of closing: (a) Seller is authorized to enter into the Agreement, to sell the Property, and to perform its obligations under the Agreement; (b) All books, records, leases, agreements and other items delivered to Buyer pursuant to this Agreement are accurate and complete; (c) The Property and the business conducted thereon comply with all applicable laws, regulations, codes and ordinances; (d) Seller has all certificates of occupancy, permits, and other governmental consents necessary to own and operate the Property for its current use; (e) There is no pending or threatened litigation which would adversely affect the Property or Buyer's ownership thereof after closing; (f) There are no covenants, conditions, restrictions, or contractual obligations of Seller which will adversely affect Buyer's ownership of the Property after closing or prevent Seller from performing its obligations under the Agreement, except as disclosed in the preliminary commitment for title insurance or as otherwise disclosed to Buyer in writing prior to the end of the inspecting contingency stated in Section 5 above; (g) There is no pending or threatened condemnation or similar proceedings affecting the Property, and except as otherwise disclosed in the preliminary commitment for title insurance as or otherwise disclosed to Buyer in writing prior to closing, the Property is not within the boundaries of any planned or authorized local improvement district; (h) Seller has paid (except to the extent prorated at closing) all local, state and federal taxes (other than real and personal property taxes and assessments described in Section 8 above) attributable to the period prior to closing which, if not paid, could constitute a lien on Property (including any personal property), or for which Buyer may be held liable after closing; and (i) Seller warrants that there are no pending or threatened notices of violation of building, zoning, or land use codes applicable to the Property; and (j) Seller is not aware of any concealed material defects in the Property except: As disclosed by Seller in writina within 30 days after Mutual Acceotance. Seller makes no representations or warranties regarding the Property other than those specified in this Agreement, Buyer otherwise takes the Property "AS IS," and Buyer shall otherwise rely on its own pre-closing inspections and investigations. 13. HAZARDOUS SUBSTANCES. Except as disclosed to or known by Buyer prior to the satisfaction or waiver of the inspection contingency stated in Section 5 above, Seller represents and warrants to Buyer that, to the best of its / ...- INITIALS: Buyer J'tC ;J I Date 7iI> I / /2-71" Y Seller Date I , . Buyer Date Seller Date ViewPoint Realty @ Copyright 1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 6 of 11 PURCHASE & SALE AGREEMENT knowledge: (i) there are no Hazardous Substances (as defined below) currently located in, on, or under the Property in a manner or quantity that presently violates any Environmental Law (as defined below); (ii) there are no underground storage tanks located on the Property; and (iii) there is no pending or threatened investigation or remedial action by any governmental agency regarding the release of Hazardous Substances or the violation of Environmental Law at the Property. As used herein, the term "Hazardous Substances" shall mean any substance or material now or hereafter defined or regulated as a hazardous substance, hazardous waste, toxic substance, pollutant, or contaminant under any federal, state, or local law, regulation, or ordinance governing any substance that could cause actual or suspected harm to human health or the environment ("Environmental Law"). The term "Hazardous Substances" specifically includes, but is not limited to, petroleum, petroleum by-products, and asbestos. 14. PERSONAL PROPERTY. a. This sale includes all right, title and interest of Seller to the following tangible personal property: IZI None o That portion of the personal property located on and used in connection with the Property, which Seller will itemize in an Addendum to be attached to this Agreement within ten (10) days of mutual acceptance (None, if not completed). The value assigned to the personal property shall be the amount agreed upon by the parties and, if they cannot agree, the County-assessed value if available, and if not available, the fair market value determined by an appraiser selected by the Listing Agent and Selling Licensee. Seller warrants title to, but not the condition of, the personal property and shall convey it by bill of sale. Buyer shall pay any sales or use tax arising from the transfer of the personal property. b. In addition to the leases, contracts and agreements assumed by Buyer pursuant to Section 5a above, this sale includes all right, title and interest of Seller to the following intangible property now or hereafter existing with respect to the Property including without limitation: 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 Property; all rights to utilities serving the Property; all drawings, plans, specifications and other architectural or engineering work product; all governmental permits, certificates, licenses, authorizations and approvals; all utility, security and other deposits and reserve accounts made as security for the fulfillment of any of Seller's obligations; any name of or telephone numbers for the Property and related trademarks, service marks or trade dress; and guaranties, warranties or other assurances of performance received. 15. CONDEMNATION AND CASUAL TV. Buyer may terminate this Agreement and obtain a refund of the earnest money, less any costs advanced or committed for Buyer, if improvements on the Property are destroyed or materially damaged by casualty before closing, or if condemnation proceedings are commenced against all or a portion of the Property before closing. 16. FIRPTA - TAX WITHHOLDING AT CLOSING. Closing Agent is instructed to prepare a certification (CBA or NWMLS Form 22E, or equivalent) that Seller is not a "foreign person" within the meaning of the Foreign Investment in Real Property Tax Act. Seller agrees to sign this certification. If Seller is a foreign person, and this transaction is not otherwise exempt from FIRPT A, Closing Agent is instructed to withhold and pay the required amount to the Internal Revenue Service. 17. CONVEYANCE. Title shall be conveyed by a Statutory Warranty Deed subject only to the Permitted Exceptions. If this Agreement is for conveyance of Seller's vendee's interest in a Real Estate Contract, the Statutory Warranty Deed shaU. include a contract vendee's assignment sufficient to convey after acquired title. At closing, Seller and Buyer shall execute and deliver to Closing Agent CBA Form No. PS-AS Assignment and Assumption Agreement transferring all leases, contracts and agreements assumed by Buyer pursuant to Section Sa and all intangible property transferred pursuant to Section 14b. 18. NOTICES AND COMPUTATION OF TIME. Unless otherwise specified, any notice required or permitted in, or related to, this Agreement (including revoCations of offers and counteroffers) must be in writing. Notices to Seller INITIALS: Buyer ,i'( J'> Date II I... 3/"" 'I: Seller Date Buyer Date Seller Date ViewPoint Realty @Copyright 1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev, 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 7 of 11 PURCHASE & SALE AGREEMENT must be signed by as least one Buyer and must be delivered to Seller and Listing Agent. A notice to Seller shall be deemed delivered only when received by Seller, Listing Agent, or the licensed office of Listing Agent. Notices to Buyer must be signed by at least one Seller and must be delivered to Buyer and Selling Licensee. A notice to Buyer shall be deemed delivered only when received by Buyer, Selling Licensee, or the licensed office of Selling Licensee. Selling Licensee and Listing Agent have no responsibility to advise of receipt of a notice beyond either phoning the party or causing a copy of the notice to be delivered to the party's address on this Agreement. Buyer and Seller must keep Selling Licensee and Listing Agent advised of their whereabouts to receive prompt notification of receipt of a notice. Unless otherwise specified in this Agreement, any period of time in this Agreement shall begin the day after the event starting the period and shall expire at S:OO p.m. Pacific time of the last calendar day of the specified period of time, unless the last day is a Saturday, Sunday or legal holiday as defined in RCW 1.16.0S0, in which case the specified period of time shall expire on the next day that is not a Saturday, Sunday or legal holiday. Any specified period of five (S) days or less shall not include Saturdays, Sundays or legal holidays. 19. AGENCY DISCLOSURE. At the signing of this Agreement, Selling Licensee Viewpoint Realtv. Mr. Frank Stratton - Designated Broker (Insert names of Licensee and the Company name as licensed) represented BUYER (Insert Seller, Buyer, both Seller and Buyer or Neither Seller nor Buyer) and the Listing Agent None (Insert names of Licensee and the Company name as licensed) represented Neither Seller nor Buver (Insert Seller, Buyer, both Seller and Buyer or Neither Seller nor Buyer) If Selling Licensee and Listing Agent are different salespersons affiliated with the same Broker, then Seller and Buyer confirm their consent to Broker acting as a dual agent. If Selling Licensee and Listing Agent are the same person representing both parties, then Seller and Buyer confirm their consent to that person and his/her Broker acting as dual agents. If Selling Licensee, Listing Agent, or their Broker are dual agents, then Seller and Buyer consent to Selling Licensee, Listing Agent and their Broker being compensated based on a percentage of the purchase price or as otherwise disclosed on an attached addendum. Buver and Seller confirm receipt of the pamphlet entitled "The Law of Real Estate Aaencv." 20. ASSIGNMENT. Buyer ~ may o may not (may not, if not completed) assign this Agreement, or Buyer's rights hereunder, without Seller's prior written consent, unless provided otherwise herein. 21. DEFAULT AND ATTORNEY'S FEE. In the event Buyer fails, without legal excuse, to complete the purChase of the Property, then (check one): ~ that portion of the earnest money which does not exceed five percent (S%) of the purchase price shall be kept by Seller as liquidated damages (subject to Seller's obligation to pay certain costs or a commission, if any) as the sole and exclusive remedy available to Seller for such failure; or o Seller may, at its option, (a) keep as liquidated damages all of the earnest money (subject to Seller's obligation to pay certain costs or a commission, if any) as the sole and exclusive remedy available to Seller for such failure, (b) bring suit against Buyer for Seller's actual damages, (c) bring suit to specifically enforce this Agreement and recover any incidental damages, or (d) pursue any other rights or remedies available at law or equity. INITIALS: Buyer /2 C. yf, Date I( h.. )/..'1 Seller Date Buyer Date Seller Date _n __ _n_ ---------- ------- -- ---- ----------- ---- ViewPoint Realty @Copyright 1999 ~ 21107SR410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 8 of 11 PURCHASE & SALE AGREEMENT If Buyer or Seller institutes suit concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses. In the event of trial, the amount of the attorney's fee shall be fixed by the court. The venue of any suit shall be the county in which the Property is located, and this Agreement shall be governed by the laws of the state where the Property is located. 22. MISCELLANEOUS PROVISIONS. a. Complete Agreement. The Agreement and any addenda and exhibits to it state the entire understanding of Buyer and Seller regarding the sale of the Property. There are no verbal or written agreements which modify or affect the Agreement. b. No Merger. The terms of the Agreement shall not merge in the deed or other conveyance instrument transferring the Property to Buyer at closing. The terms of this Agreement shall survive closing. c. Counterpart Signatures. The Agreement may be signed in counterpart, each signed counterpart shall be deemed an original, and all counterparts together shall constitute one and the same agreement. d. Facsimile Transmission. Facsimile transmission of any signed original document, and retransmission of any signed facsimile transmission, shall be the same as delivery of an original. At the request of either party, or the Closing Agent, the parties will confirm facsimile transmitted signatures by signing an original document. 23. ACCEPtANCE; COUNTEROFFERS. Seller has until midnight of December 10th, 2004 (if not filled in, the third business day following the last Buyer signature date below) to accept this offer, unless sooner withdrawn. If this offer is not timely accepted, it shall lapse and the earnest money shall be refunded to Buyer. If either party makes a future counteroffer, the other party shall have until 5:00 p.m. on the ~ business day (if not filled in, the second business day) following its receipt to' accept the counteroffer, unless sooner withdrawn. If the counteroffer is not timely accepted or countered, this Agreement shall lapse and the earnest money shall be refunded to the Buyer. No acceptance, offer or counteroffer from the Buyer is effective until a signed copy is received by the Seller, the Listing Agent or the licensed office of the Listing Agent. No acceptance, offer or counteroffer from the Seller is effective until a signed copy is received by the Buyer, the Selling Licensee or the licensed office of the Selling Licensee. 24. INFORMATION TRANSFER. In the event this Agreement is terminated, Buyer agrees to deliver to Seller within ten (10) days of Seller's written request copies of all materials received from Seller and any plans, studies, reports, inspections, appraisals, surveys, drawings, permits, application or other development work product relating to the Property in Buyer's possession or control as of the date this Agreement is terminated. 25. CONFIDENTIALITY. Until and unless closing has been consummated, Buyer will treat all information obtained in connection with the negotiation and performance of this Agreement as confidential (except for any information that Buyer is required by law to disclose and then only after giving Seller written notice at least three (3) days prior to the disclosure) and will not use or knowingly permit the use of any confidential information in any manner detrimental to Seller. 26. SELLER'S ACCEPTANCE AND BROKERAGE AGREEMENT. Seller agrees to sell the Property on the terms and conditions herein, and further agrees to pay a commission in a total amount computed in accordance with the listing :JgreemoFlt. .If there is FlO written .listing agreemeFlt, SeUer agrees to pay a commission of ~% of the sales price or $_. The commission shaH be apportionod betV'/een Listing I\gent and TO Selling Licensee. as specified in the tisting agreement or any co brokorage agroement. Seller assigns to Listing Agent and Selling Licensee a portion of the sales proceeds equal to the commission. If the earnest money is retained as liquidated damages, any costs advanced or committed by Listing AgeRt--el=-Selling Licensee for Buyer or Seller shall be reimbursed or paid therefrom, and the balance shall be paid one-half to Seller and one-half to Listing Agent and Selling Licensee. according to the J.fstiFlg agreement and :my co brokerage agreement. In any action by I:d8#J:IfJ Agent or Selling Licensee to enforce this Section, the prevailing party is entitled to reasonable attorneys' fees and expenses. Neither Listing Agent nor Selling Licensee are receiving compensation from more than one party to this INITIALS: Buyer {. c. yJ. Date II I.. '),!.; <f Seller Date Buyer Date Seller Date ViewPoint Realty @Copyright 1999 ~ 21107SR410 Commercial Brokers Association Bonney Lake, WA 98390' All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 9 of 11 PURCHASE & SALE AGREEMENT transaction unless disclosed on an attached addendum, in which case Buyer and Seller consent to such compensation. The Property described in attached Exhibit A, is commercial real estate. Notwithstanding Section 26 above, the pages containing this section, the parties' signatures and an attachment describing the Property may be recorded. 27. LISTING AGENT AND SELLING LICENSEE DISCLOSURE. EXCEPT AS OTHERWISE DISCLOSED IN WRITING TO BUYER OR SELLER, THE SELLING LICENSEE, LISTING AGENT, AND BROKERS HAVE NOT MADE ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE LEGAL EFFECT OF THIS AGREEMENT, BUYER'S OR SELLER'S FINANCIAL STRENGTH, OR THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE PROPERTY'S ZONING, COMPLIANCE WITH APPLICABLE LAWS (INCLUDING LAWS REGARDING ACCESSIBILITY FOR DISABLED PERSONS), OR HAZARDOUS MATERIALS. SELLER AND BUYER ARE EACH ADVISED TO SEEK INDEPENDENT LEGAL AND TAX ADVICE ON THESE AND OTHER MATTERS RELATED TO THIS AGREEMENT. INITIALS: Buyer /~t: f> Date II/?-;'/O<( Seller Date Buyer Date Seller Date ViewPoint Realty @Copyright1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBAForm PS.1A Fax: (253) 862-5969 Purchase & Sale 9/03 Page 10 of 11 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) ~{/~ZI~ "Date II /..... l/~'~ I Date , Fax No. - Home Phone - Federal Way, Wa. 98003 Other Phone Fax No. (253) 862-5969 . East Suite G-2 Bonne Lake 98390 MLS Office No. 9083 Print Name Frank Stratton Date , MA YOR C. BOZEMAN Date , Home Phone Office Phone 360473-5275 Fax No. 360 473-5278 Print Seller's Name The City of Bremerton Seller's Address 345 6th Street. Suite 600. Bremerton. Washinaton 98337 Listing Agent Listing Office_ Office Phone No. Other Phone Fax No. - Address MLS Office No, 28. BUYER'S RECEIPT. Buyer acknowledges receipt of a Seller signed copy of this Agreement, on ,- BUYER BUYER ViewPoint Realty @Copyright 1999 ~ 21107SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form PS-1A Fax: (253) 862-5969 Purchase & Sale Agreement Rev. 9/03 COMMERCIAL & INVESTMENT REAL ESTATE Page 11 of11 PURCHASE & SALE AGREEMENT EXHIBIT A [Legal Description] SW 1/4 NW1/4 EXC FDP BAT NW COR OF SD SEC TH S2*57'05W 2778.15FT TO W 1/4 COR OF SD SEC TH N89*58'24E 560SF TH N2*S7'OSE 400FT TO POB TH CO NT N2*57'OSE 220FT TH S89*58'24W 220FT TH TH E TO POB TGW & SUBJ TO ESMTS SECT. Escrow to verifv and insert Exact Leaal Descriotion here. INITIALS: Buyer (Z {. iJ. Date il/?-}/~ y" Seller Date Buyer Date Seller Date ViewPoint Realty ~\~ @Copyright1999 ~ 21107SR410 Commercial Brokers Association Bonney Lake, W A 98390 All Rights Reserved Phone: (253) 862-5970 ~ CBA Form No. EMN Fax: (253) 862-5969 Earnest Money Promissory Note Rev. 12/99 Page 1 of 1 EARNEST MONEY PROMISSORY NOTE CBA Text Disclaimer: Text deleted by licensee indicated by strike. New text inserted by licensee indicated by small capital letters. $ 145.000 Place: Bremerton. Washinqton Date: November 24th 2004 FOR VALUE RECEIVED,. the undersigned ("Buyer") agrees to pay to the order of The Citv of Bremerton the sum of ONE HUNDRED FORTY FIVE THOUSAND Dollars ($145.000) as follows: o _ days (3 days if not filled in) following mutual acceptance of the Purchase Agreement (as defined below). j o Upon satisfaction or waiver of the inspection contingency stated in the Purchase Agreement. t8J Other Pavable in accordance with the PSA dated November 22. 2004 but no later than upon Closinq. This Note is evidence of the obligation to pay earnest money under the Purchase and Sale Agreement (the "Purchase Agreement") between the Buyer and The Citv of Bremerton ("Seller") dated November 24th, 2004 for the property located at: Tax Account No. 0224 012 003 2008 (38.89+- Acres).. however at Buyer sole cost: Buyer shall identifv and exclude the 'Water Tank Property" CWTP") (includinq easement access) which Buver and Escrowrritle shall identifv. Thereafter. Escrow shall obtain Buver and Seller written approval of the 'WTP" within 90 days of Mutual Acceotance. Buyer's failure to pay the earnest money strictly as above shall constitute default on said Purchase Agreement as well as on this Note. If this Note shall be placed in the hands of an attorney for collection, or if suit shall be brought to collect any of the balance due on this Note, Buyer prom ises to pay a reasonable attorney's fee as fixed by the Court, and all court and collection costs. This Note shall bear interest at the rate of twelve percent (12%) per annum after default. BUYER: I/t;5../- BEALKO INe ttuuJ2/ By: Richard Butko Namerritle: President ViewPoint Realty @ Copyright 1999 ~ 21107SR410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form VLA Fax: (253) 862-5969 Vacant land Addendum Rev. 12/99 VACANT LAND ADDENDUM TO COMMERCIAL Page 1 of 2 INVESTMENT PURCHASE & SALE AGREEMENT CBA Text Disclaimer: Text deleted by licensee indicated by strike. New text inserted by licensee indicated by small capital letters. This Addendum (the "Addendum") is part of the Commercial Investment Purchase and Sale Agreement (the "Agreement") dated November 24th, 2004 between The City of Bremerton ("Seller") and Bealko Inc.. ("Buyer") concerning Tax Account No. 0224 012 003 20 08 however at Buyer sole cost: Buyer shall identify and exclude the "Water Tank Property" ("WTP") (including easement access) which Buyer and EscrowlTitle shall identify. Thereafter. Escrow shall obtain Buver and Seller written approval of the 'WTP" within 90 days of Mutual Acceptance (the "Property"). Closing Date. The closing shall be ON OR BEFORE 45 days (30 days if not filled in) after eac of the e ts selected below have occurred, but under no circumstances later than Novembe ,2006: ~~ rgj satisfaction of the inspection contingency in Section 5 of th \ . .$ &r& V\\ rgj preliminary plat a al has been obtained for the Prope i\)'^' ft\)\)6"-' rgj recording of the final plat for tli rgj vent construction activities from commencing 0 2. Extensions. Buyer may extend the closing date for up to 10 periods of 60 days each (each an "Extension Period") upon payment of an extension fee of $ 10.000 for each extension Period. Each extension fee shall be paid to rgj Seller 0 closing agent (Seller if not filled in) on or before the start of the Extension Period. The extension fees shall be non-refundable except in the event of Seller's default and rgj shall 0 shall not (shall not if not filled in) apply to the purchase price. 3. Subdivision and Dov.elopment Contingencies. This Agreement shat! terminat.e and Buy.er shall recoh'{) a rofund of the earnest mORey unlass Buy.er giv.es V'iritten notice to SeHer within _ days (120 days 3fter mutual acoeptance if not ffiled in) stating that Buy.er is reasonably satisfied that the fel.leIl'Ang sel.ected matters have occurred: o p.re.'fminary plat appro'l8l for the Property o recording of:3 final plat for the Property (NOTE: If local or st-Qte IB'NS require a /eg31 subdivision to set! the Property, for example if the Property is part of a large parcel, RCW 58.17.205 requires th::1t this Agreement must be contingent on recording of a fin::11 plat containing the p,roperty and that no earnest money shalf be disbursed to Seller until the final plat is recorded.) D removal of any gov.eminental moratoriums which pre\'ent construction ::1cti'lities from commencing eR-the Property as of closing D ~ermit has been issued for the Prope#y INITIALS: Buyer /1. ~- I~ Dale i I I.... J /0 V Seller Dale - - . - .. - . ViewPoint Realty @)Copyright 1999 ~ 21107 SR 410 Commercial Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 CBA Form VLA Fax: (253) 862-5969 Vacant Land Addendum Rev. 12/99 VACANT LAND ADDENDUM TO COMMERCIAL PaQe 2 of 2 INVESTMENT PURCHASE & SALE AGREEMENT (CONTINUED) o a grade and fif! permit has been issued for the P:"Operty . 0 a building permit has been ,issued for the Proporty o other . .If such notice is timely givon, the foregoing contingencies shaN be deemed satisfied. Upon removal of any inspection contingenoy provided in Sootion 5 of the /lgroement, Buyer shaH act di!fgent!y and in good faith to obt{]in the approvals and permits necessary to satisfy the foregoing contingencies. Buy.er sRa!! bear all of the costs of obtaIning tf:1e foregoing permits and approv:JIs. 4. Cooperation. Seller agrees to cooperate with Buyer in obtaining all permits or other governmental approvals necessary or convenient to develop the Property as contemplated by this Agreement, and shall execute all documents Buyer may reasonably require at no cost to Seller, including without limitation, applications for permits or approvals. Buyer agrees to make available at Seller's reasonable request any plat maps, drawings, or applications relating to applications or submittals for the Property made by Buyer to any governmental agency. 5. Buyer's Pre-Closing Development Work. If the Agreement contemplates that Buyer will perform work on the Property prior to closing, for example, to satisfy conditions of final plat approval, then Buyer's right to entry under Section 5b of the Agreement and Seller's duty of cooperation under Section 4 of this Addendum shall extend to those pre-closing construction and development activities. Any studies, inspections or improvements shall be accomplished at the Buyer's expense. Buyer agrees to indemnify and defend Seller from all liens, costs, claims, and expenses, including attorneys' and experts' fees, arising from or relating to entry onto the Property, by Buyer or its CI~ents. This agreement to indemnify and defend Seller shall survive closing. 6. Seller's Acts. Seller shall not create or permit to be created any lien or encumbrance against any portion of the Property, except for encumbrances existing on the date of mutual acceptance of this Agreement, the lien of real property taxes and assessments that are not delinquent, and statutory liens that result from the activities of Buyer in connection with the Property. Seller shall continue to pay when due all such prior encumbrances and shall not suffer or permit a default to arise under those prior encumbrances. If Seller fails to timely pay any such tax, assessment or prior encumbrance or if any encumbrance arises against the Property after mutual acceptance of this Agreement, then Buyer may pay all or any part of those taxes, assessments or encumbrances and may deduct amounts so paid from the earnest money. In the event that the Property has been placed in a forestry, agricultural or open space tax classification, Seller agrees to remove the Property from said classification and the escrow agent shall pay any compensating taxes from the proceeds due Seller at closing. 7. Memorandum of Agreement. Upon the request of Buyer, the Seller agrees to execute and record a memorandum identifying the parties, the date of the Agreement and the closing date of the Agreement. S. Conflict. In the event of any conflict between the terms of this Addendum and the Agreement, this Addendum shall control. INITIALS: Buyer lei:, Date I ( /.1. "$/~ </ Seller Date -- - - . - .. - . ViewPoint Realty @Copyright 1999 21107 SR 410 ~ Bonney Lake, W A 98390 Commercial Brokers Association All Rights Reserved Phone: (253) 862-5970 Fax: (253) 862-5969 CBA Form PSA NWMLS Form No. 34 ADDENDUM/AMENDMENT TO Addendum/Amendment to P & 5 PURCHASE AND SALE AGREEMENT Rev. 12/99 CBA Text Disclaimer: Text deleted by licensee indicated by strike. Page 1 of 1 New text inserted by licensee indicated by small capital letters. The following is part of the Purchase and Sale Agreement dated November 24, 2004, Between City of Bremerton ("Seller") And Bealko Inc. ("Buyer") regarding the sale of the Property known as: Tax ID # 02240120032008 Kitsap County IT IS AGREED BETWEEN THE SELLER AND BUYER AS FOLLOWS: 1) The Water Tank Propertv ('WTP") referred to in the PSA shall be: a) Identified, documented and excluded from the Purchase at Sellers written and sole discretion or this transaction shall be terminated before the Inspection Period of 120 davs. Such documentation shall provide for an easement access until the sub-division plan is approved then. the easement shall be abandoned and the newly approved and recorded sub-division plans shall provide for street access to the WTP: b) Buver shall present easement access reaardina the WTP documentation for Sellers written approval within 90 days of Mutual Acceptance. 2) PSA - Provision 7. CLOSING OF SALE: a) The first sentence in Provision 7 shall be deleted then. the followina shall be inserted: "This sale shall be closed within forty-five (45) days after the Inspection Period ("closina"). b) Escrow and Title shall be handled by ChicaQo Title and Escrow not Land Title and Escrow. 3) To clarifv the "closina" (in correlation with the "Extension Period"): the PSA must be closed on or before November 24. 2006 which includes all of the Extension Periods (approximatelv. a 24 month maximum time frame) 4 Buyer shall provide land apprasial to Seller before closina. 5) PSA - Provision 23: ACCEPTANCE: COUNTEROFFERS: The Buyer and Seller aaree to extend the Seller acceptance date until midniaht of December 24th.2004. ~'Q b) p(jV<'~,;", I t(,.t:. ~tA",t l-A...R Al.(,~w,,^ ( I~ ;15 t<A~,..,7' rJ ~ f\GErff (COMPANy)' Vi",,>> \'0. ,\t Q "..J\-1 ~ 'h. By: /' All OTHER TERMS AND CONDITIONS of said Agreement remain unchanged. INITIALS: Buyer '6-~ Date 1:J-/ c;(c; y Seller Date Buyer Date Seller Date ViewPoint Realty @ Copyright 1999 21107 SR 4.10 ~ Bonney Lake, WA 98390 Commercial Brokers Association Phone: (253) 862-5970 All Rights ReselVed Fax: (253) 862-5969 CBA Form PSA NWMLS Form No. 34 ADDENDUM/AMENDMENT TO Addendum/Amendment to P & S PURCHASE AND SALE AGREEMENT Rev. 12/99 CBA Text Disclaimer: Text deleted by licensee indicated by strike. Page 1 of 1 New text inserted by licensee indicated by small capital letters. The following is part of the Purchase and Sale Agreement dated November 24. 2004, Between Citv of Bremerton ("Seller") And Bealko Inc ("Buyer") regarding the sale of the Property known as: Tax 10 # 02240120032008 Kitsao County (38+- acres). IT IS AGREED BETWEEN THE SELLER AND BUYER AS FOllOWS: The Purchase and Sale Aareement mentioned above is extended until Februarv 28th 200S. I I I Vi~wpoint fi~alty By, ~~12- 21107 SR 410 Suite G2 Bonney Lake, WA 98390 - AGENT (COMPANY): ALL OTHER TERMS AND CONDITIONS of said Agreement remain unchanged. /! 'IS. ) /2.- f ,/ r; S--- Seller INITIALS: Buyer ?Lt~ Date Date Buyer Date Seller Date Itcir'co~[~:~Jsa'~~~corrr'Gl~55:~ar~!fs~~~~~!S'"&~?~~~~:'w":,w~":,~::w"",,,',,.,, ",#~j~',,""::,":" ,*.,:::.."g..~:::".::.:::=:p~~.l' ~ Lc.<'_'L.."" . .,.... ",. ,..".P, M=,"... ,p, . ..... ,..".'# ...." ,,' "''''' ,,,..'L ", '.W " , . '"'' .."W" .,"W .#" .,,' ," '''''' "'''''''',# ,.. ....". ",', ,'.", '.. .. ", ", ...." """ g, .....' , From: Gleim Carden <glenncarden@yahoo.com> To: <citycouncil@ci.bremerton.wa.us> Date: Tue, Mar 29, 2005 7:24 AM Subject: kitsapsun.com: Glenn Carden suggests you read this. Glenn Carden thought you would be interested in this link to "Don't judge Tracyton watershed without visiting it" on the kitsapsun.com Web site: http://www.kitsapsun.com/bsun/op_ columnists/articlelO ,2403, BSUN _ 19095_3655877 ,00 .html Dear City Council Members, I am forwarding this article from the Kitsap Sun just in case you didn't already see it. I think it makes a very good point about visiting the Watershed before you decide to sell the property. Don't judge Tracy ton watershed without visiting it By Heidi Evans, Community Columnist March 28, 2005 I walked into the Tracy ton watershed to make an impartial, balanced and logical assessment of its value. It was impossible. Within 200 yards I nearly screamed, "It's Peter Pan's Neverland!" First a little history: Bremerton purchased the Tracy ton Water District in 2004. The city made badly needed improvements to the district's facilities and took out a $1. 7 million loan in the process. In the purchase, the city also received 40 acres of the district's watershed land valued at $1.2 million, which was to be sold to offset the cost of the improvements. With the land as a guarantee, the water customers avoided paying a massive bill for the work. A developer has now offered to buy the land. The Bremerton City Council is considering the offer. Residents around the property are going berserk because they want the land preserved. "Then cough up the big bucks," I thought at first after reading about the debate. I was angry at Tracy ton residents. They couldn't pay for their water improvements, and the city saved them. Now it seems they want to use undeveloped land they don't own like it's their own personal park. Then I visited the site. I discovered they were right. Maybe I should have left my three young sons at home. Maybe I should have erased every happy memory of my own childhood playing in "The Ditch." I spent hours of my youth playing in untouched acreage tucked between subdivisions in Tuscaloosa, Ala. The Ditch was filled with sticker bushes, kudzu and the errant poisonous cottonmouth snake. For some wonderful reason, our parents let us disappear into that forest when we were children. We played there free from parental rules and prying eyes. That forest absorbed our energy and salved our growing pains. I got lost there, and found there. I learned my body was strong and capable. I learned nature was beautiful and surprising. I wanted to give that kind of place to my children. I couldn't find it. City parks were too sterile and tame. State parks were too wild the visitors, not the forests. I never found the right mix until I entered the watershed. As we walked into the watershed forest, I stepped back in time. A half-dozen forts sprouted from the trees. Narrow paths led to the magical places the stream, the view of Dyes Inlet, or some enormous fallen tree that served as a marvelous bridge for sure-footed forest children. "Mom, this is even better than preschool!" my almost-S-year-old shrieked in joy. Unlike area parks, here there were no discarded beer cans or liquor bottles, no crumpled bits of toilet paper, no soiled condoms, no huffing detritus. There was a forgotten pop bottle, and the carcasses of old paint balls. The forest is a glorious cathedral to innocence. I am ashamed to admit I have lived in Kitsap County for nearly five years and don't recall entering an old growth forest. Upon stepping into the watershed, I knew it was special in biological terms as well as emotional ones. There are massive firs, cedars and maples. A tree three times the height of my home grows cannibal-like out of the stump of more substantial ancestor. One gnarled tree is coated in an inch of moss and appears to be a cast member from "The Lord of the Rings." Thirty feet overheard, one snag is wedged into another tree. Ferns longer than my arms sprout from the bark of ancient living hosts. Delicate Western trillium and pungent yellow skunk cabbage bloom on the forest floor. The air is delightfully cool. A wrong step leaves the hiker in duff to their knees. Two broad ravines divide the property, each swallowing city sounds in its maw. In this drought, water trickles slowly through. Considering that I cannot be impartial, I offer these tips to the Bremerton City Council: Don't dismiss the descriptions of the property as NIMBY namby-pamby. Walk the watershed for at least an hour. To vote without seeing it would be a disservice. Water will go where it wants. The ravines on this property can carry far more water than a storm sewer. Building homes where water wants to flow is an expensive mistake for generations. The Growth Management Act is a farce if it protects pastures in other parts of the county and demands putting dozens of residences on old growth forest. If you can't decide, give a little more time. The only thing lost is interest on the money. If the land is developed unwisely, that forest is gone forever. Compromise is possible. Development might be acceptable on the southwestern fringes of this land. The ravines and the sections north and east of the water tower should be left alone. [91~"Q~~ncj'r:]!!l~gm~~rr9I[M~ellQg:"~~~~r,~arBuslnei~ It~m}~~:::=::::c'::==='"""'m~',="",:::", 'N>,,"%"~"'m''''m_'#:':,=,,==::': ,:': '.: =eiaITl From: "Del Knauss" <damknauss@comcast.net> To: <citycouncil@ci.bremerton.wa.us> Date: Tue, Apr 5, 200S 6:33 PM Subject: City Council Meeting - General Business Item 7B Lori, Please deliver to each council member and include as part of the official record of Wednesday Council Meeting 4/6/0S. Please confirm receipt of this e-mail and let me know if it cannot be included into the official record. I will come down personally Wednesday and address the council to get it into the record. Thanks, Del ************************************************************************************************************************* ************************************************** To the City Council Members: I have to object to General Business Item 7B Local Agency Standard Consultant Agreement with "Simply Consulting" for the Downtown Pedestrian/BTC Access Improvement Project (#ABOS-090), and request it be pulled or voted against for the following reasons: 1. Letter from Douglas B. McDonald, Secretary of Transportation, dated 13 July 2004, states that State Law requires WSDOT to "exercise all the powers and perform all the duties necessary, convenient, or incidental to the planning, locating, designing, constructing, improving, repairing, operating, and maintaining [of] state highways" (see RCW 47.01.260). WSDOT must step forward to fulfill its statutory responsibilities for management of this state highway project. 2. Since the state "WSDOT" has taken control of this project, the City Council should not be voting to approve any funds for a consulting contract. 3. The Washington State Transportation Committee has not voted on the project and has not added it to the 6 year plan. 4. Full funding for the project has not been approved by the U. S. Senate. Since the project has not been fully funded, you don't know if it will be reimburseable from the Federal Funds provided in the Capital Project Budget. S. Since the City Council voted not to put the CA TT initiative on the ballot based on the letter they received from Secretary of Transportation McDonald stating the State has total control of this project, the City Council should have no action whatsoever on this project. Bottom line - since the state WSDOT has taken control of the BTC project, the City Council of Bremerton should not be voting on the appropriation of any funds, Please pull this item or vote no. Del Knauss 139 Olympic Avenue Bremerton, WA 98312 360-377 -442S . Ap'r 06 05 03:31p Viewpoint Realt~ (253) 862-5969 F. 1 ----- . VIEWPOI~ST REALTY "Where your VIEWPOINT is the most important" April 6, 2005 F A'C: Page 1 of S' (ji) TO: The City of Bremerton. C/O: Mr. Rodger Lubovicht City Attorney. RE: Bealko Inc. - Keep Offer active - TRACYTON WATERSHED. Dear Mr. Lubovich: The Tracyton Watershed property possesses difficult development issues regarding access and utility access, grading, environmental i:ssuest value issues and community issues. Bealko can solve these issues. Bealko has an upcoming meeting with a neighboring owner that will relive access and utility access issues. If Bealko can continue to as:semble the required properties thent Bealko believes they can solve the c:ommunity issues and City issues during a feasibility period. Bealko would like to keep their Offer active andlor continue working with the City during a feasibility period. Also, during said feasibility period; Sealko and Parametrix's shall work with the community to reslolve the community concerns regardil1g the development at no cost to the City. Additionally, Bealko concedes, during the feasibility period, tCI the purchase price being adjusted in light. of the community conCEtrnS and an appraisal to be ordered during the feasibility period. Parametrix's and Bealko are aligned and ready to proceed with planning and presentations to accommodate the City's and the Commullity needs and satisfaction while moving the project forward. It appears that moving forward with Bealko today can minimiz.! the City's Council's impact and immediately address the community issues. Please advise us of your intent. Sincerely, T. L. Vander Pool Dev., & Const., Advisor to the Designated Broker. P.S. Alternatively, Viewpoint Realty requests the opportunity to as:sist the City with Property Divestments in a -Industry standard" way including, an opportunity to List the Traceyton Property For Sale (see exhibit "A"). The Listing Price would be for the appraised value and subject to the City Council acceptance. cc: R. Butko. President- Bea'ko Inc. & Bill Webb - Parametrix's 21107 S R 410 Hwy East I Suite G-2 I Bonney Lake I WaShington I 98390 Phone: (253) 862-5970 I FAX: (253) 862-5969 Email: viewpointrealty1@aol.com www.viewpointrealty.com . Ap'r 06 05 03:31p Viewpoint Realt~ (253) 862-5969 10.2 . ViewPoint Realty @ Copyright 1999 c:Bt" 21107 SR 410 Commercia: Brokers Association Bonney Lake, WA 98390 All Rights Reserved Phone: (253) 862-5970 C8A Form XS Fax: (253) 862-5969 Exclusive Sale Rev. 11/99 COMMERCIAL BROKERS ASSOCIATION Papd 1 of 3 EXCLUSIVE SALE LISTING AGREEMENT CBA Text Disclaimer: Te>:t deleted by licensee indicated by strike, New text inserted by licensee indicated by small capital letters. In consideration of the services to be performed by the undersigned Broker, the undersigned Owner grants to Broker commencing with date of this Agreement and expiring at midnight on October 7, 2005 the exclusive and irrevocable right to sell (see definitions below) and to receipt for deposit in connection therewith. the following described commercial real estate (the "property") situate in the City of Bremerton, Kitsap County, Washington; commonly known as TRACYTON WATERSHED and legally described D as follows [8J as attached hereto: (O'.'Vner authorizes Broker to insert or correct legal description over Owner's signature.) Selling Price $ To be determined. bv appraisal to follow Possession: At Closinq Terms: ALL CASH AT CLOSING; SUBJECT TO CITY COUNCIL APPROVALI 1. DEFINITIONS. The term "sell" (and similar phrases) as used in this Agreement ~;hall mean and include sell, contract to sell, exchange. lease for over 5 years, and/or an option to purcl1ase. The phrase "this Agreement" and "during the term hereof" include written extensions of this Agreement. 2. AGENCY I DUAL AGENCY. Owner authorizes Broker to appoint Frank Stratton to act as Owner's Listing Agent(s). It is understood and agreed that this Agreement creates an auency relationship with Listing Agent(l.) and Broker only, not with any other salesperson of Broo<er; provided, Owner authorizes Broker to appoint other salespersons affiliated with Broker as subagents to act on Owner's behalf as and when needed, at Broker's discretion. Any other broker or salesperson. other than Broker or listing Agent(s), will not be representing Owner and may represent the buyer. Accordingly, for purposes of this Agreement, "Broker" means Listing Agent(s), including any subagents, and Listing Agent.s Broker, Designated Broker or Branch Manager. unless expressly stated otherwise. Owner further authorizes Broker to enter into co-operative brokerage agreements. Owner agrees that if the property is sold to a buyer represented by one of Broker's salespersons other than Listing Agent(s), then Owner consents to Broker acting as a dual agent. Owner further agrees that if the property is sold to a buyer who Listing Agent also represents, then Owner consents to Listing Agent(s) and Broker acting as dual agents. Owner agrees that different salespersons affiliated with Broker may represent different seifers in competing transactions involving the salle buyer and that this shall not be considered action by Broker that is adverse or detrimental to the inlerests of either seller, nor shall it be considered a conflict of interest on the part of Broker. Owner acknowledges receipt of the pamphlet entitled "The Law of Real Estate Agency." If Broker acts as a dual agent, then Broker shall be entitled to the entire commission payable under this Agreement plus any additional compensation Broker may have negotiated with the buyer. 3. PROPERTY INFORMATION. Owner acknowledges receipt of a copy of this Agreement, with the property information in this Agreement fully filled in. Owner warrants that the property information is correct. Owner understands that Broker and other members of the Multiple Lis':ing Service will make representations to prospective buyers based solely on the property information in this Agreement, and agrees to indemnify and hold harmless Broker and other members of the Multiple Listing Service in the Silent the foregoing warranties are incorrect. Owner confirms that following closing, the amount of the I purchase price and any other terms oJ the safe of the property shall not be deemed confidential I Apr 06 05 03:31p Viewpoint Realt~ (253) 862-5969 p.3 .- ViewPoint Realty . ~: CopyrighI1999 rrr..../ 10- S Commercial BDkers AssoCIatIon lJ:S'I 21 I R 410 AI Rights Reserved Bonney Lake. WA 98390 Phone: (253) 862-5970 CBA Form XS F . ('l53) 862-5969 Exclusive Sale ax, '- Rev. 11/99 Page 2 of 3 COMMERCIAL BROKERS ASSOCIATION EXCLUSIVE SALE LISTING AGREEMENT (CONTINUED) information and Owner authorizes disclosure of the same. 4. TITLE AND CLOSING COSTS. Owner warrants that Owner has the right to ::etl the property on the terms herein, and agrees to furnish and pay .for a purchaser's policy of title insurance showing marketable title to the property. Owner ~grees to pay real estate excise tax, dee~d revenue stamps and one-half of any escrow fees. Rents, insurance, taxes, interest and reserves on assumed encumbrances are to be prorated between Owner and buyer as of the date of closing. A sale on real estate contract shall be on Form LPB49 as currently distributed by title insurancE~ companies. 5. COMMISSION. Broker shall be entitled to a commission if: (a) Broker procures a bJyer on the terms of this Agreement, or on other terms acceptable to Owner; (b) Owner sells the property directly or indirectly or through any person or entity other than Broker during the term of this Agreement; (c) Owner sells the property within six months after the expiration or sooner termination of this Agreement to a person or entity that submitted an offer to purchase the property during the term of this Agreement or that appears on any registration list proVided by Broker pursuant to this Agreement. or to an "Affiliate" of such a person or entity that submitted an offer or that appears on the registration list; (d) the property is made unmarketable by Owner's voluntary act; or (e) Owner withdraws the property from sale, or otherwise prevents Broker from selling it. The commission shall be calculated as follows: 6% of Sale Price. Broker must submit any registration list to Owner within 15 days after the expiration or sooner termination of this Agreement and shf\f1 only include on the registration list persons or entities to whose attention the property was brought through the signs, advertising or other action of Broker, or who received information secured directly or indirectly from or through Broker during the term of this Agreement. The Owner shall provide tile registration list to any other brokers that assist the Owner with this property. "Affiliate" means, with respect to any person or entity that sL;bmitted an offer during the term of this Agreement or that appears on the registration list. a person or entity which has more than a 10% ownership or voting interest in such an entity or any entity in whier more than 10% of the ownership or voting interests are owned or controlled by such a person or entity. 6. BROKER/MUL.TIPLE LISTING. Broker shall cause this listing to be published by Commercial Brokers Association ("CBA") for distribution to all CBA members through CBA's listing systems. Broker shall cooperate with all other members of CBA in working toward the sale of the property. Owner' understands and agrees that all property information contained in this Agreement or otherwise given to CEiA becomes the property of CBA,i.s not confidential, and will be given to third parties, including prcsDI,:ctive buyers, other cooperating members of CBA who do not represent tile Owner and, in some instances, may represent the buyer arid other parties granted access to CBA's listing systems. Owner agrees that Broker may record this Agreement. Regardless of whether a cooperating member is the Broker of the buyer, the Owner, neither or both, the member shall be entitled to receive the selling office's share of the commission as designated by the listing office. IT IS UNDERSTOOD THAT COMMERCIAL BROKERS ASSOCIATION IS NOT A PARTY TO THIS AGREEMENT, AND ITS SOLE FUNCTION IS TO FURNISH THE DESCRIPTIVE INFORMATION SET FORTH IN THIS LISTING TO iTS Iv1EMBERS, WITHOU-:- VERIFICATION AND WITHOUT ASSUMING ANY RESPONSIBILITY FOR SUCH iNFORMATION OR IN RESPECT TO THIS AGREEMENT. 7. ATTORNEY'S FEES. In the event either party emplo.ys an attorney to enforce any terms of this A!Jreement and is successful, the other party agrees to pay a reasonable attOrnt3Y'S fee. In the event of trial, the amount of the attorney's fee shall be as fixed by the court. 8. ADDITIONAL TERMS. The fo~:ow;ng attached hereto are part of this Agreemenl: Water Tank with ingress :and egre,ss not included with sale.. . A~r OS 05 03:31p Viewpoint Realt~ (253) 862-5969 p.4 ~ ViewPc:,iClt Hea:ty !~ Copyright 1999 rn< Commercial Brokers Association 21'107 S!~410 All Rights Reserved Bonney Lake, W A 98390 Phone: (253) 862-:5970 CBA Form XS Exclusive Sale Fax: (253) 862-5969 Rev. 11/99 Page 3 of 3 COMMERCIAL BROKERS ASSOCIATION EXCLUSIVE SALE LISTING AGREEMENT (CONTINUED) Dated this day 7n, of April, 2005. City Of Bremerton Owner's Address Own er Business Home Owner's Pllone Owner .... . . . " . .. .. .. . . .. .................................. -.' . .. .. . .. . . . .. .. . .... . .. . ... . ~ . . .. .. .. .. . . .. ... .. .,. ... .. .. .. - . .. .. .. ..... . . . .. .. . .. .. . -. . . . ... . .. .. . . . . . '''' ........ .. In consideration of Owner's execution of this Agreement, the undersigned hereby agrees to act as Owner's agent to sell the property. Viewpoint Realtv Broker (Company) By: Frank Stratton Office Authorized Representative ......-...#.....................#............,............................................................................................................................. Owner l1erehy extends the above Agreement to midnight of (Owner) (Owner) .. Apr 06 05 03:32p Viewpoint Realt~ (253) 862-5969 5 .. " p. ACORD'M CERTIFICATE OF LIABILITY INSURANCE p~~~1 03 _l;~T;O 05 j ; PRODucaJ THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION I I L ERSON G Y NC / S ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE l BEL AND A ENC ,I - PH HOLDER. THIS CERTIFICATE DOES NOT AMEND EXTEND OR I 819579 P: (866)467-8730 F: (877)905-0457 I ALTER THE COVERAGE AFFORCED BY THE POLI'CIES BELOW. i i P. O. BOX 33015 I I SAN ANTONIO TX 78265 i INSURERS AFFORDING COVERAGE I INSURED INSURERA:Hartford Casualty Ins Co I INSURER B: FRANK STRATTON DBA: VIEW POINT REALTY INSURERC: i 21107 SR 410 #G2 INSUFlERD: ; I SUMNER WA 98390 . INSURER E: 1 COVERAGES I THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ,. ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH I POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I~;: I TYP!!: OF INSURANCE POLICY NUMBER ~~~fYJ~~gg~E i pgllfl ~':.tW~JJ$~ LIMITS I . GENERAL LIABILITY I I EACH OCCURRENCE I $l, 0 0 0 , 00 0 -i IA FCOMMERCIALGENER~ABILlTV 52 SBA RX2826 02/10/05 02/10/06/FIREOAMAGE(Anyonefire) Is300,OOO ! ~ CLAIMS MADE lllJ OCCUR . I MED,XP (AnV one personl___.Ls1Q , 000 I 2;j Business Liab i . IPERS')NAL&AOVINJURV Is1,000,OOO] ~ I GENE<AL AGGREGATE i $2, 000, 000 ' GEN'l AGGREGATE liMIT APPLIES PER: . PRODUCTS. COMPIOP AGG I $2 , 000 rOO 0 _ -, POLICY I jr2r I X I LaC I \ AUTOMOBILE LIABILITY I ! I COMI~INED SINGLE LIMIT A i:ANYAUTO '52 SBA RX2826 02/10/05 02/10/06 lEaaccidenl. i$l,OOO,OOO I ALL OWNED AUTOS BODI V INJURY r-; . $ ~ SCHEDULED AUTOS IPer ~ersonl @ HIRED AUTOS ! BODI_V INJURY I ~ NON.OWNED AUTOS (Per ,ccldentl $ _ ~ERTY DAMAGE $ I (Per ,,,,olden,l i GARAGE LIABILITY I AUTO ONLY - EA ACCIDENT I $ ---' ANY AUTO OTHER THAN EA ACC I $ i i AUTO ONLY: AGG I $ EXCESS LIABILITY EACH OCCURRENCE I $ ---.J OCCUR --.J CLAIMS MADE I AGGI~EGATE $ _ L, , -1 DEDUCTIBLE L I $ I I RETENTION $ $ -I I WC STATU, I IOTH- WORKERS COMPeNSATION AND . TORY LIMITS ER 'A ,EMPLOYERS'L1ABllITY 52 SBA RX2826 02/10/05 02/10106 E.L.l:ACHACCIDENT ,1,000,000 I . E L. ,)lSE/\SE - EA EMPLOYEE! $1 , 00 0 , 0 00 I I , E.L. J)ISEASE. POLICY LIMIT I $l , 000 , 000 I OTHER 1 DESCRIPTION OF OPERATIONSJLOCATIONSiVEHICLESIEXCLUSIONS ADDEO BY ENDORSEMENT/SPECIAL PROVISIONS Those usual to the Insured I s Operations. LESMER INC. & ROS::!;N PROPERTIES ARE NAMED AS ADDITIONAL INSURED PER BUSINESS LIABILITY COVERAG:~ FORM SS0008, ATTACHED TO POLICY. ! CERTIACATE HOLDER I X I ADDIlIONAL1NSURED; INSURER LElIER: A CANCELLATION SHOULD ANY OF THE ABOVE DESCRlEIED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL BONNIE LAKE ASSOCIATES DBA 30 DAYS WRITTEN NOTICE 110 DAYS FOR NON-PAYMENT) TO THE CERTIFICATE BONNIE LAKE VILLAGE SHOPPING CENTER HOLDER NAMED TO THE LEFT. BUT F/\lLURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KltJD UPON THE INSURER, ITS AGENTS OR P. 0 BOX 5003 REPRESENT A TJVES. BELLEVUE, WA 98009 - 5003 AUTf\ORIZEO REPRESENT~E ~S€...~~.su..- ACORD 25.S 17/97\ '" Ar.m:!n ("'nDDnO^TI....I\I 1 00... Move to terminate the pending proceedings regarding the surplusing and sale to Bealko, Inc. of the public utility property commonly known as the Tracyton property consisting of approximately 38 acres for $2.9 million as set forth in Resolution 2956, upon which no action will be taken. DATE SUBMITTED: March 30, 2005 BILL # O~,. 098 AGENDA BILL CITY OF BREMERTON ~l3 CITY COUNCIL ........................................................................................ SUBJECT: Closed record hearing for the Committee Meeting Date: NA Sylvan Plat Preliminary Plat COUNCIL MEETING Date: April 6, 2005 Department: DCD Presenter: Robert Grumbach Phone: 473-5379 SUMMARY: Hearing Examiner recommendation on a preliminary plat (File Number BP04-00412) to divide 1.39 acres of land into 11 building lots and three tracts at the northeast intersection of Ricky Road and Sylvan Way. The recommendation included twenty (20) conditions to be imposed for final plat approval. ATTACHMENTS: (1) Procedures for Close Record Hearing. (2) Hearing Examiner Recommendation. (3) StaffRe ort. (4) Site Plan. 5 SEPA. (6) Proposed resolution on Hearin Examiner's recommendation Note: Staff Report Appendicies A through I are available in t e City lCouncil office _ FISCAL IMPACTS (Include Budgeted Amount): None APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: FISCAL/BUDGET: CONSENT AGENDA D OPERATIONS: COUNCIL PRESIDENT: =- RECOMMENDED MOTION: Move to pass resolution No. a.qWapproving and adopting the Findings, Conclusions and Recommendation of the Administrative Hearing Examiner and approve the preliminary plat for Sylvan Plat subject to the proposed conditions. COUNCIL ACTION: 0 Approve o Deny o Table o Continue o No Action I I I MEMORANDUM Department of Community Development . ~ . 3456 Street, Suite 600, Bremerton, WA 98337-1873 CITY OF Phone: (360) 473-5275 BREMERTON Fax: (360) 473-5278 DATE: March 29, 2005 TO: BREMERTON CITY COUNCIL FROM: Robert J. Grumbach, AICP, Bremerton Department of Community DevelopmentPS. SUBJECT: CLOSED RECORD HEARING ON PRELIMINARY PLAT Attached are the following items for the closed record hearing on the Mark Sweeney Preliminary Subdivision Application (File No. BP04-00412): (1) Procedures for Closed Record Hearing; (2) Hearing Examiner Recommendation; (3) Staff Report; (4) Site Plan; (5) SEP A; and (6) Proposed resolution on Hearing Examiner recommendation. If you would like to review the appendices to the staff report, a copy of the appendices is available at the City Council office from Lori Smith. If you have any questions, please call me at (360) 473-5379. I I I .'., PROCEDURE FOR CLOSED RECORD HEARING ON HEARING EXAMINER'S RECOMMENDATION I. STAFF REPORT AND PRESENTATION 1. After the Appearance of Fairness inquiry, Council President asks staff to present Hearing Examiner Recommendation. 2. Pursuant to Council policies, no public comment permitted. 3. Council may ask questions of staff and applicant (discussion limited to the record). II. COUNCIL CONSIDERATION The Council may approve and adopt the hearing examiner's recommendation unless one of the following conditions exists: l. Proceedings were materially affected by irregularities in procedure. 2. Recommendation is outside the authority of the hearing examiner. 3. Recommendation is based on an erroneous interpretation of law. 4. Recommendation is not supported by substantial evidence. 5. Recommendation is based on clearly erroneous application of law to facts. III. DECISION The Council may take any of the following actions: l. Approve and adopt the hearing examiner's findings and recommendation. 2. Modify and approve the findings and recommendation. 3. Reject and deny the hearing examiner's findings and recommendation on the proposal as originally submitted based upon council findings. 4. Continue the closed record hearing and remand to the hearing examiner for clarification on issues of record (no public testimony). R:\LEGAL\Departments-General\City Council\City Council Procedure re hearing exam recom.doc BEFORE THE HEARING EXAMINER OF THE CITY OF BREMERTON In the Matter of the Application of ) NO. BP04-00412 ) Mark Sweeney ) Sylvan Plat ) For approval of a Preliminary Plat ) FINDINGS, CONCLUSIONS, AND ) RECOMMENDATION ) SUMMARY OF REQUEST AND RECOMMENDATION Mark Sweeney (Applicant) requests approval of a preliminary plat to divide a 1.39 acre parcel located at the northeast intersection of Rickey Road and Sylvan Way into 11 building lots and three tracts (for roads and a storm water retention facility).l The Hearing Examiner recommends that the request be APPROVED, subject to conditions. CRITERIA FOR REVIEW Bremerton Municipal Code (BMC) Chapter 21.02.855 contains the City of Bremerton's requirements for processing a preliminary plat application. This chapter requires that the Hearing Examiner hold an open record hearing on the matter and make a written recommendation to the City Council based on the record developed at the hearing. The City Council then makes the final decision following a closed record hearing. The City of Bremerton has not adopted a subdivision ordinance. Therefore, the requirements set forth in the Revised Code of Washington (RCW) ~58.17 govern the Hearing Examiner's recommendation and the City Council's decision. According to RCW ~58.17 .11 0, before a preliminary plat can be approved, it must be determined in written findings that the public interest will be served by the subdivision. Specifically, it must be determined that the preliminary plat makes provisions "for the public health, safety, and welfare, for open spaces, drainage ways, streets or roads, alleys, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools, and sidewalks for safe walking conditions". 1 The parcel's legal description is "Parcel A: That portion of the east 1;2, west Yz, southeast 1;4, northeast 1;4, southwest % of Section 2, Township 24 North, Range 1 East, Willamette Meridian. Except the North 240 feet as me.asured along the east and west sides of said subdivision and except the south 30 feet deeded to the City of Bremerton for Sylvan Way by instrument recorded under Auditor's file no. 825424 and except that portion described in instrument recorded under Auditor's file no. 814143. The Tax Assessor Account Numbers is 022401-3-061-2005. Exhibit 1, page 1; Exhibit 1, Attachment d, page 1. D) , . , Findings, Conclusions, and Recommendation ...j Hearing Examiner for City of Bremerton JU MAR 1 1 2005 Mark Sweeny/Sylvan Preliminary Subdivision, No BP04.00412 Page 1 of9 BREMERTON.OEPT OF COMMUNITY DEVELOPMENT The Hearing Examiner's recommendation and the City's decision must also be consistent with the City of Bremerton's Comprehensive Plan (See BMC S21.02.040). The following provisions of the Comprehensive Plan apply to the current application: PLANNING GOALS Goal # 1 Urban Growth: Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner. Supporting Policy (3): Accommodate new development with care so that Bremerton will continue to be a well-balanced "most livable city." Goal # 2 Reduce Sprawl: Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development. Supporting Policy (5): Promote the concept of development clustering to conserve energy, save land, lower public costs, reduce sprawl, and provide open space. Goal # 4 Housing: Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock. Supporting Policy (3): Provide continuing opportunities for a range of housing types and densities that will accommodate the lifestyles and economic levels of present and future residents. HOUSING ELEMENT Goal D (2) New Housing Development: Provide a variety of housing types and densities to meet changing needs of Bremerton residents. Supporting Policy (3): Stimulate the production of new housing for all income, age, family type and ethnic groups. Goal D (4) Livable Neighborhoods: Build strong, livable neighborhoods where the American Dream of home ownership is possible for a majority of Bremerton Residents. Supporting Policy (5): Promote safe, attractive, livable neighborhoods that will attract homeowners. Supporting Policy (6): Increase opportunities for home ownership within the City. Promote expanded home ownership opportunities for low and moderate income households. SUMMARY OF RECORD AND HEARING An open record public hearing was held before the Hearing Examiner of the City of Bremerton on February 28, 2005.The record is developed at the open record public hearing. The Hearing Examiner makes a written recommendation regarding the proposed preliminary plat to the City Council based solely on the record presented at the hearing. The following individuals submitted testimony under oath at the hearing: Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision. No BP04-00412 Page 2 of9 1. Robert Grumbach, City of Bremerton Planner 2. Ron Cleaver, Jr., representative of Applicant The following exhibits were admitted to the official record at the hearing: Exhibit I Staff Report dated February 28, 2005. Attachment A: PUD Application dated November 9,2004 Attachment B: SEP A Determination dated February 9, 2005 Attachment C: Comprehensive Plan Designation Map Attachment D: Easement Document Attachment E: Public Works Letter dated January 28,2005 Attachment F: Water and Sewer Availability Letter dated January 22,2004 Attachment G: Preliminary Storm Water Report dated August 26, 2004 Attachment H: City and State Agency Comments Attachment I: Affidavit of Notice dated February 9,2005 Attachment J: Site Plan Exhibit 2 Slides of Powe,r Point presentation given by Robert Grumbach Exhibit 3 Map showing parks and schools in vicinity FINDINGS Based on the record outlined above, the Hearing Examiner enters the following Findings and Conclusions regarding the proposed preliminary plat: 1. The Applicant requests approval of a preliminary plat to divide a 1.39 acre parcel located at the northeast intersection of Rickey Road and Sylvan Way in Bremerton, Washington into 11 building lots and three tracts for roads and a storm water retention facility. Tract A will contain an access road and utilities. Tract B will contain an access road and utilities. Tract C will contain the storm water retention facility. Exhibit 1, page 1; Exhibit 1, Attachment A; Exhibit 1, Attachment B, page 15; Exhibit 1, Attachment J. 2. The preliminary plat application was received on November 9,2004. The application was determined complete on December 7, 2004. As of December 7, the subject property was zoned residential low-density (DR). The intent of DR zoning is to maintain neighborhoods of predominantly single and two unit structures. The zone allows a density of eight dwelling units per acre, a minimum single-family dwelling unit lot size of 4,000 square feet, and a maximum lot size of 6,000 square feet. The density for the proposed project is 7.9 dwelling units per acre, The lot sizes range Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision. No BP04-00412 Page 3 of9 ~ ! from 4,000 square feet to 4,853 square feet, and comply with the requirements for single-family dwellings in this zone. Exhibit 1, pages 2-3, 11; Exhibit 1, Attachment I; Testimony of Mr. Grumbach. 3. Following the determination of a complete preliminary plat application, the Bremerton City Council adopted an updated Comprehensive Plan. The updated comprehensive plan designated the subject property as "Low Density Residential" (LDR). The new zoning designation to implement the comprehensive plan will be R- IO. The updated zone increases the minimum lot size from 4,000 square feet for single-family dwellings to about 4,300 square feet. Some of the lots in the proposed project will not comply with the new R-1O zone but, pursuant to RCW 58.17 .170, the application vests to the zoning standards in effect on December 7,2004. Exhibit 1, page 2; Exhibit 1, Attachment 1. 4. Surrounding areas to the north, west, and east are zoned "Residential Low-Density" (DR). The surrounding area to the south is zoned "Residential Low-Density" (SR-3). Duplex residences are to the north and west, and single-family residences are to the south and east of the proposed project. Exhibit 1, page 2; Exhibit 1, Attachment B, page 13. 5. The definition of "lot" in BMC ~ 21.02.070 requires a minimum of 20 feet of frontage on either a public or private street. A minimum lot width of 40 feet is also required. All proposed lots comply with these requirements. Exhibit 1, page 5, Exhibit 1, Attachment A. 6. BMC ~21.02.700(a)(1) requires non-residential structures to have landscaping or a combination of landscaping and fencing to provide a year-round sight barrier to sights that abut any SF or DR zoning district. Additionally, one tree per 25 lineal feet of street frontage is also required. The storm water retention facility located on Tract C is considered a non-residential structure and must comply with these requirements. No landscaping is currently shown on the preliminary plan. Exhibit 1, page 6; Exhibit 1, Attachment A. 7. The site is currently undeveloped. The land is mostly flat, with a slope ranging from two to eleven percent. Alder, maple, fir, and cedar trees, along with other grasses and shrubs, cover the site. No critical areas were identified on the site. There are no threatened or endangered species known to be on or near the site. Songbirds currently live on the site. Exhibit 1, pages 2, 6; Exhibit 1, Attachment B, pages 9-10, 11,14. 8. The City of Bremerton does not require an open space set aside for this project. Exhibit 1, Attachment A. 9. Access to the site will be provided through a 50 foot public right of way that will extend north from Sylvan Way. A dedicationof approximately 8,277 square feet, or Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04.00412 Page 4 of9 a 20 foot wide strip, iq addition to the existing 40 foot access easement, will be required to create the tight of way. The right of way will be developed to the standards of a Local Access Two Way Street and will include sidewalks on both sides. The City Engineer will require the future development of an eight foot wide parking strip along the west side of the street, but will not require a bike lane. Lots 1 through 4 will access the right of way through Private Road Tract A and Lots 6 through 11 will have access through Private Road Tract B. Sidewalks will extend through Private Road Tracts A and B. Exhibit 1, pages 6-7; Exhibit 1, Attachment A; Exhibit 1, Attachment B, page 18. Exhibit 1, Attachment J. 10. Signs are required to identify the new right of way. All street signs are required to meet City standards as provided in the City of Bremerton's Engineer Standards 3251 through 3300. The installation of the signs will be conditions of final plat approval. Exhibit 1, page 8. 11. Frontage improvements, including sidewalks, associated storm drainage and conduit runs for future street lights, are required along Sylvan Way. The installation of these improvements will be .conditions of final plat approval. Exhibit 1, page 8. 12. A fire hydrant is required to be within 250 feet of the proposed preliminary plat per Appendix C of the International Fire Code for residential development pursuant to BMC ~ 18.02.060. The installation of the fire hydrants will be a condition of final plat approval. Exhibit 1, page 8; Exhibit 1, Attachment J; BMC 918.02.060. 13. The City Engineer evaluated the proposal for traffic impacts and determined that a traffic study is not required pursuant to BMC ~ 11.12.060. The proposed development is anticipated to generate an increase of 5.43 Weekday PM Peak Vehicle Trips per hour. This is an increase of 40.4 Weekday Average Vehicle Trips per day. This is not a significant impact and it will not affect the free flowing traffic of the existing level of service on Sylvan Way. The area is served by Kitsap Transit; Route 25 makes a regular stop at Rickey Road and Sylvan Way. Exhibit 1, page 11; Exhibit 1, Attachment B, page 17; Exhibit 1, Attachment H, page 1. 14. The City of Bremerton's Public Works & Utilities Engineering Division issued a letter of conditional water and sewer availability to the project on January 22, 2004. Water and sewer service was approved conditional upon conformance to the City's Comprehensive Land Use Plan and zoning ordinance. Water service is conditionally available within the easement to the east of the proposed plat. Sewer service is conditionally available in the easement to the west of the proposed plat. Exhibit 1, Attachment F; Exhibit 1, page 11. 15. A storm water retention facility will be located on Tract C. This facility will include a shallow detention vault that will retain storm water and release it at allowable runoff rates. An oil and water separator and a wet vault will be used for quality enhancement Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision. No BP04-00412 Page 50f9 of all storm water collected from the developed basin. Exhibit 1, Attachment B, pages 9-10. 16. Blueberry Park is the nearest park to the proposed plat. It is located approximately 900 feet to the southeast of the subject parcel. The nearest school is Armin J ahr Elementary School. It is located approximately 1,200 feet to the southeast of the proposed plat. The School District did not comment on this application. Exhibit 3. 17. Pursuant to the State Environmental Policy Act (SEP A), the application was reviewed for possible environmental impacts. The City of Bremerton Department of Community Development was designated lead agency and the Responsible Official concluded that the project would have no probable significant environmental impact. A Determination of Nonsignificance was issued on Febmary 9, 2005, and became final on Febmary 24,2005. No public comments were received regarding the proposed preliminary plat. Exhibit 1, page 11; Exhibit 1, Attachment B, page 1. 18. The Notice of Application was published in The Sun and posted on the property on December 13,2004. Notices were mailed to state and local agencies, and property owners within 300 feet of the site. The notice of public hearing was published in The Sun and posted on the property on Febmary 9,2005. Notice of the hearing was mailed to property owners within 300 feet of the site. Exhibit 1, page 11; Exhibit 1, Attachment I; Testimony of Mr. Grumbach. Conclusions Based on Findings 1. With conditions of approval, appropriate provision would be made for the public health, safety, welfare, and all other requirements of RCW ~58.17.110. Storm water mnoff from new roads will be treated in a storm water retention facility located on Tract C. Water and sewer service is available to the proposed project. There is a transit stop located near the proposed development. A set- aside for open space is not required for this project. Adequate emergency access will be provided by the new right-of-way. Sidewalks will be installed throughout the proposed project to provide safe walking conditions. Findings of Fact 1-18. 2. With conditions of approval, the public use and interest will be served by approval of the preliminary plat. Roads, storm drainage, and public utilities connections will provide the necessary infrastmcture for the 11 new single-family residential lots. Findings of Fact 9, 11, 12, 14, 15. 3. The proposed preliminary plat complies with the City of Bremerton's Comprehensive Plan. The smaller lot sizes will provide more affordable housing for the City of Bremerton. The proposed project reduces sprawl by locating new residential development where public services are already available. The proposed development will be a safe and attractive community, close to parks and schools. Findings of Fact I, 2, 3, 4, 16. Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 60{9 RECOMMENDATION Upon consideration of the Findings and Conclusions, the Hearing Examiner recommends APPROV AL of the request for the Preliminary Plat to divide a 1.39 acre parcel located at the northeast intersection of Rickey Road and Sylvan Way in Bremerton, Washington into 11 building lots and three tracts for roads and a storm water retention facility, subject to the following conditions: 1. The access easement located adjacent to the west property line shall be developed to the City's Local Access Two Way street standards. The property owner shall be responsible for improvements that meet the City's standards per the letter from City of Bremerton Public Works dated January 28,2005. Improvements shall be installed or bonded for prior to final plat approval. 2. A 20 foot wide dedication of public right of way is required per the submitted site plan received by the City of Bremerton November 9,2004. The dedication shall be included on the face of the final plat and the City Engineer must approve the language for the dedication. 3. Road Tracts A & B shall be developed to the City's Shared Dirveway Access street standards. Improvements shall be installed or bonded for prior to final plat approval. 4. The final plat shall contain language regarding shared ownership and maintenance responsibilities for Private Road Tracts A & B. 5. The final plat shall contain language that no on-street parking shall be allowed on Road Tracts A & B. 6. Frontage improvements, including sidewalks, associated storm drainage and conduit runs for future street lighting, are required to be installed or bonded for prior to final plat approval. All improvements shall meet City Engineering standards set forth in BMC Title 15. 7. The Public Works conditions set forth in the Water and Sewer Availability letter dated January 22, 2004 shall be included as conditions for approving the final plat. The water main extension shall be installed or bonded for prior to final plat approval. 8. A final storm drainage and grading plan shall be submitted to the Public Works Department that meets the City Engineer's approval. All storm drainage systems shall be installed or bonded for prior to final plat approval. Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 70f9 9. Street identification signs are required per the City Engineering Standards 3251 through 3300. The street signs shall be installed or bonded for prior to final plat approval. 10. A fire hydrant meeting City standards is required. The fire hydrant shall be installed or bonded for prior to final plat approval. If the fire hydrant is bonded for, the hydrant must be installed and operational prior to any construction above building foundations. 11. The storm drainage facilities located on Tract C shall be landscaped according to BMC ~21.02.700(a)(1). A landscaping plan that is acceptable to the City must be submitted prior to final plat approval. The landscaping shall be installed or bonded for prior to final plat approval. 12. The final plat shall contain language regarding shared ownership and maintenance responsibilities for the storm drainage facilities and the associated landscaping. 13. Addresses for the individual lots shall be obtained from the Public Works Department and shall be indicated on the final plat. 14. A survey of the proposed final subdivision and preparation of the plat shall be made by or under the supervision of a Washington State registered land surveyor who shall certify on the plat that it is a true and correct representation of the lands actually surveyed. Two copies of the lot closures shall be submitted with the application for final approval of the plat. 15. For the right of way dedication: a waiver of all claims for damages against any government authority, which may be occasioned to the adjacent land by the established construction, drainage, and maintenance of said road shall be included on the final plat. 16. A final plat meeting applicable development standards and conditions shall be submitted to the Department of Community Development for approval within five years of the date of preliminary plat approval. 17. Two copies of the plat certificate shall be submitted with the application of final approval of the plat. 18. Six copies of the plat (not mylar) shall be submitted to the Department of Community Development for final compliance review. 19. The subdivision shall be vested for five years following final plat approval in the allowed uses and development standards for Low-Density Residential (DR) zoning, which were in effect November 9,2004. Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 80f9 20. A copy of the recorded plat shall be provided to the Department of Community Development after it is recorded with the Kitsap County Auditor before building permits will be issued. Recommended this \\~day of March 2004. r\A~~ G PJ ~ Theodore Paul Hunter Hearing Examiner of the City of Bremerton Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 9 of9 .' :.. CITY OF BREMERTON DEPART~NTOFCOMMUNITYDEVELOPMENT STAFF REPORT, CONCLUSIONS AND FINDINGS Hearing Examiner,Public Hearing February 28, 2005 Requested Action: Preliminary Subdivision to divide a 1.39-acre Low-density Residential (DR) zoned parcel into 11 residential lots plus road tracts; to balance cut and fill approximately 2,500 yards of material GENERALINFO~TION 1. Land Use Action (See ApPENDIX A for application): Hearing Examiner recommendation to Bremerton City Council on Preliminary Subdivision 2. File Number: BP04-00412 3. Applicant: Mark Sweeney, 7634 Clover Blossom Lane, Bremerton, W A 4. Location: Northeast intersection of Rickey Road and Sylvan Way 5. Assessor Account Number: 022401-3-061-2005 PROJECT SUMMARY 1. Current Zone Classification: Residential Low-density (DR) 2. Comprehensive Plan Designation: Medium Density Residential (MDR)* 3. Shoreline Environmental Designation: None 4. Critical Areas Designations: None STATE ENVIRONMENTAL POLICY ACT SEPA Threshold Determination: Determination of Nonsignificance issued February 9, 2005 (See ApPENDIX B). * The City Council approved Ordinance 4917 adopting an updated Comprehensive Plan effective December 17, 2004. The new Comprehensive Plan designation for the property is Low Density Residential. However, the proposal is considered under the old Comprehensive Plan, which was in effect at the time of a completed application BP04-00334 1 of 13 SITE DESCRIPTION 1. Legal Description: 02241E PAR A SHORT PLAT B-121 REC AF 8407240102 BEING THE E1/2 OF THE W1/2 OF SE 1/4 NE 1/4 SW 1/4 EXC N 240 FT AS MEAS ALG E & W SIDES SO SUB & EXC S 30 FT DEEDED TO CITY OF BREMERTON FOR SYLVAN WAY PER AF 825424 & EXC TH PTN PER AF 814143 SO PAR A BEING MORE PART OAF COM AT SW COR SO E1/2 W1/2 SE 1/4 NE 1/4 SW 1/4 SO SEC WH BEARS N2*09'57E 1339.14 FT & N89*40' 26W 498.82 FT FR S 1/4 COR SO SEC TH N2*07'37E ALG W LN SO SUB 30FT TO TPOB TH CONT N2*07'37E 397.88 FT TH S89*51, 47E 166.35 FT TH S2*08'24W ALG E LN SO SUB 166.49 FT TH N89*40'26W ALG N LN SO TR REC AF 814143 DIST OF 25 FT TH S2*08' 24W ALG W LN SO TR REC AF 814143 DIST OF 231.93 FT TO N MGN SYLAN WAY TH N89* 40'26W ALG SO N MGN 141.27 FT TO TPOB TGW & SUBJ TO NON-EXCLUSIVE ESMT FOR I E & U PER SHORT PLAT B-121 REC AF 8407 240102 EXC S 30FT DEEDED TO CITY OF BREMERTON FOR SYLVAN WAY PER AF 825424 2. Lot Size: Approximately 1.39 acres 3. Surrounding Land Uses: North Residential Low-density Duplex Residential (DR) South Residential Low-density Single-family Residential (SF-3) East Residential Low-density Single-family Residential (DR) West Residential Low-density Duplex Residential (DR) 4. Topography: The site is relatively flat. Slopes range from 2 to 11 percent. 5. Development: The lot is undeveloped. 6. Access: The ingress/ egress are provided from private road tracts and a public right- of-way that intersects Sylvan Way. 7. Utilities: The site is served by public water and sanitary sewer services. COMPREHENSIVE PLAN (See Appendix C for Comp Plan Map) PLANNING GOALS: The Comprehensive Plan goals help define the vision for Bremerton's future. The following Planning Goals are consistent with the Planned Unit Development application. BP04-00334 2 of 13 . Goal # 1 Urban Growth: "Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner. " Supporting Policy (3): Accommodate new development with care so that Bremerton will continue to be a well-balanced "most livable city." . Goal # 2 Reduce Sprawl: "Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development. " Supporting Policy (5): Promote the concept of development clustering to conserve energy, save land, lower public costs, reduce sprawl, and provide open space. . Goal # 4 Housing: "Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock. Supporting Policy (3): Provide continuing opportunities for a range of housing types and densities that will accommodate the lifestyles and economic levels of present and future residents. HOUSING ELEMENT: Goal D (2) New Housing Development: "Provide a variety of housing types and densities to meet changing needs of Bremerton residents." Supporting Policy (3): Stimulate the production of new housing for all income, age, family type and ethnic groups. HOUSING ELEMENT: Goal D (4) Livable Neighborhoods: "Build strong, livable neighborhoods where the American Dream of home ownership is possible for a majority of Bremerton Residents. Supporting Policy (5): Promote safe, attractive, livable neighborhoods that will attract homeowners. Supporting Policy (6): Increase opportunities for home ownership within the City. Promote expanded home ownership opportunities for low and moderate income households. LAND USE ELEMENT: The property is located in the East Bremerton Plan (Element E, 7, (page 27)). There are no policies specified under this plan applicable to this development. BP04-00334 3 of 13 CITY OF BREMERTON REQUIREMENT FOR A SUBDIVISION The City of -Bremelton has not adopted a subdivision ordinance. Therefore, the City relies on the requirements set forth in RCW 58.17. The processing of a subdivision application is set fOlth in BMC Section 21.02.855, which requires a Type IV City Council Decision after an open . record hearing and recommendation by the Administrative Hearing Examiner. Final subdivision approval is set forth as a Type IV City Council Decision after a closed record hearing. COMPREHENSIVE PLAN, FUTURE ZONING & VESTING The updated comprehensive plan designated the property as Low Density Residential (LDR). This comprehensive plan designation implements within the City the principle zoning classification for detach single-family and attached single-family homes. The new zoning designation will become R-I0. This is anticipated to affect the types of permitted residential uses on the property. The duplex and multiple-unit structures currently allowed under the DR zoning will not be allowed under the R-lO zoning. However, it should be noted that the proposed lot sizes allow only single-family dwelling units under the existing lot regulations. Additionally, the new R-lO zoning designation will increase the minimum lot size from 4,000 square feet for single-family dwellings to about 4,300 square feet. Therefore it is anticipated that subdivision will create lots that are not consistent with future zoning standards. However, pursuant to RCW Section 58.17.170, the subdivision vests in the DR zoning standards until 5 years after the filing of the final plat with the Kitsap County Auditor. ANALYSIS: BMC Section 21.02.855 sets forth preliminary Subdivision applications as a Type IV City Council Decision. The Hearing Exanllner makes a recommendation after an open record pre-decision hearing. ANALYSIS OF ZONING 1. The proposal consists of the development of 11 Single-family residence lots on the 1.39-acre parcel. Development includes the construction of 11 lots, 3 tracts and some land dedicated to right-of-way. Tract A will contain an access road and utilities. Tract B will contain an access road and utilities. Tract C will contain the storm water drainage facility. 2. The intent of DR zoning is to maintain neighborhoods of predominantly single- and two-unit structures as well as areas suitable for a mixture of these dwelling types. The same related accessory uses that are allowed in the other zones are permitted in BP04-00334 4 of 13 this zone and the allowed density is the same as the SF-3 zone, but with a smaller minimum lot s~ze for single units and duplexes. 3. BMC 21.02.290 states that lot area shall include all areas within the exterior lot lines exclusive of water areas. Pursuant to BMC Section 21.02.290 (Calculating Lot Area), the site has 1.39 acres within the lot lines. 4. Figure 130 (Lot Requirements) allows a base density of 8 dwelling units per gross acre. The proposed density for this project is 7.9 dwellings per acre (11 dwellings/ 1.39 acres). 5. Figure 120 (Zone Summary) allows a minimum lot size of 4,000 square feet for single-family dwelling units and 6,000 square feet for duplex structures. Figure 130 (Lot Summary) requires a minimum lot size of 4,000 square feet. All lots comply with the lot requirements for single-family dwellings (see analysis, paragraph 10). 6. BMC Section 21.02.070 definition of Lot requires a minimum of 20 feet of frontage on either a public or private street. All lots comply with this requirement (see analysis, paragraph 10). , 7. Figure 130 (Lot Requirements) requires minimum lot width of 40 feet. All lots comply with this requirement (see analysis, paragraph 10). 8. Figure 130 provides a maximum 30-foot height limitation within SF-3 zoning. BMC Section 21.02.070 definition for Grade sets forth the measurement of zoning height to be from finished grade. This will be evaluated when building permits are applied for. 9. Figure 130 (lot requirements) sets forth the setback standards within the SF-3 zoning district as Front Yard = 15 feet (20 feet to garage), Side Yard = 5 feet and Rear Yard = 15 feet. This will be evaluated when building permits are applied for. 10. Off-street parking is required per Figure 670(a). Detached single-family dwellings require 2.0 parking spaces per unit. This will be evaluated when building permits are applied for. 11.- Lot Development Standards Evaluation: 4,000 47.59 47.59 4,227 40.63 20.01 4,001 66.00 20.01 4,000 64.59 121.49 4,853 40.02 40.02 4,221 47.85 131.46 BP04-00334 5 of 13 7 4,061 48.03 48.03 8 4,109 48.29 40.02 9 4,175 48.29 20.01 10 4,010 48.03 48.03 11 4,175 46.20 128.3 R.O.W 8,276 NA NA Road Tract A 2,365 20.01 NA Road Tract B 1,617 20.01 NA Storm Water 2,778 NA NA Tract C 12. BMC Section 21.02.700(a)(1) requires non-residential structures to have landscaping or a combination of fencing and landscaping to provide a year-around sight barrier to sights that abuts any SF or DR zoning district. Additionally, 1 street tree per 25 lineal feet of street frontage is also required. The storm water facility qualifies as a non- residential structure and therefore landscape provisions apply to Tract C. No landscaping is shown on the preliminary plan, but this will be addressed through the conditions of approval. 13. No critical areas were identified on the site as defined in BMC Chapter 21.22. The soil types identified on the site are predominately Alderwood very gravelly sandy loam, 0 to 15 percent slopes. This soil is suited to urban development if community sewage systems are built. (Source: Soil Survey for Kitsap County (1977).) ANALYSIS OF PUBLIC WORKS STANDARDS 14. The City Engineer evaluated the proposal for traffic impacts and determined that a traffic study is not required pursuant to BMC Section 11.12.060. The subdivision at completion is anticipated to generate an increase of 5.43 Weekday PM Peak Vehicle Trips per hour. This calculates into an increase of 40.4 Weekday Average Vehicle Trip per day. This is not a significant impact and it will hot affect the free flowing traffic ofthe existing level of service on Sylvan Way. 15. The property currently accesses from a westerly adjacent 40-foot wide easement that extends north from Sylvan Way to lots 120 and 101. The 40-foot easement extends 10 feet inside the existing property boundaries. The subject property also contains 140 feet of public street frontage along Sylvan Way. 16. Lots 1 through 4 will have ingress and egress through Private Road Tract A and Lots 6 through 11 will have ingress and egress through Private Road Tract B. All lots connect to the 40-foot wide easement road, which connects into Sylvan Way. 17. The 40-wide easement provides a non-exclusive easement for ingress, egress and utilities over, under and across for properties adjacent to it. (See Appendix D.) BP04-00334 6 of 13 18. A dedication of approximately 8,277 square feet will be required to create a 20-foot wide public right-of-way. The dedication includes 10 feet of the existing access easement. The dedication is the first step towards creating a future 50-foot wide right-of-way, which will allow the access street to be developed to the standards of a Local Access Two Way street. When the proposed subdivision is finalized the street will be located on 20-foot wide public right-of-way plus the remaining 30-foot wide access easement. 19. The City Engineering Standard 3001 (Roadway Classification) allows a street with less than 400 Average Daily Trips to be developed as a Local Access Two Way street. Applicable development standards include the following. . Sidewalks on both sides; . Maximum grade is 12 percent; . Minimum two lO-foot wide lanes; . Curb and gutter on both sides; . 5-foot utility easements on each side; . On street parking lane, which can be waived if off street parking exceeds the zoning requirements; and . 5-foot bike lanes on designated bike routes and at the discretion of the City Engineer on all other streets. The City Engineer will require a future development of an 8-foot wide parking strip along the west side of the street and will not require the bike lane. 20. The property owner will be required to provide a design for the entire street section. However, the City Engineer is requiring street improvements be installed only for a 28-foot wide section adjacent to the proposed subdivision. The abutting property owners to the west will have responsibility for future street improvements fronting their properties. 21. The civil plans submitted for preliminary approval are acceptable. Revisions to the plans are required including providing a road cross-section identifying materials, thickness, existing access easement limits, existing ROW limits, proposed ROW dedication, utility locations, street lighting conduit locations, parking strip, pavement cross-slope, proposed sidewalk and future sidewalk. Sidewalks will need to be extended through the private road tract entrances. These revisions are set forth in the Public Works letter dated January 28,2005. (See Appendix E.) 22. BMC Section 21.02.070 defines a Private Street as a parcel at least 20 feet in width, created specifically to provide motor vehicle access to abutting properties, the owners of which share in the ownership and maintenance responsibilities. Road Tract A and B meet this requirement. BP04-00334 7 of 13 23. The City Engineering Standard 3001 (Roadway Classification) allows a street for 2 to 9 lots to be developed as a Shared Driveway Access. This is applicable to the Private Road Tracts A & B. Applicable development standards includes the following: . Minimum two 9-foot wide lanes; . Maximum grade is 15 percent; . On-street parking is not allowed; and . 7.5-foot utility easement on one side. The preliminary civil plans show Road Tract A & B generally complies with these requirements. A 7.5-utility easement is required on one side unless modified by the City Engineer. The installation of these improvements will be conditioned as part of final plat approval. 24. Frontage improvements, including sidewalks, associated storm drainage and conduit lUns for future street lighting, are required along Sylvan Way. The installation of these improvements will be conditioned as part of final plat approval. 25. Street or road signs are required to identify the Local Access Two Way street. All street signs shall meet City standards as provided for in Engineer Standards 3251 through 3300. The installation of the signs will be conditioned as part of final plat approval. 26. A fire hydrant is required to be within 250 feet of the buildings per Appendix C of the International Fire Code (WC) for residential development. A fire hydrant is required to be located near the northeast intersection corner of Road Tract B behind the sidewalk. The installation of the fire hydrant will be conditioned as part of final plat approval. 27. The property is located within the City's utility service area. Water and sewer are available per the Conditional Water and Sewer Availability Letter. The water service will require the extension of a main water line. Sewer is available and will require separate private service lateral with a clean out placed at the east edge of the existing sewer easement. The installation of water improvements will be conditioned as part of final plat approval. (See Appendix F.) 28. The City Engineer reviewed the preliminary storm drainage report and plans. The plans call for water quantity mitigation through a detention vault designed to provide stream bank erosion control and detain the lO-year, 24 hour, type 1A storm to redevelopment rates. Water quality will be addressed through a wet vault designed to provide treatment for water before releasing into the City's storm drainage system. The preliminary plans are acceptable, but the City Engineer must still approve final storm and grading plans prior to finalizing the plat. (See Appendix G.) BP04-00334 8 of 13 --- COMMENTS RECEIVED Building None Engineering Department . Pri\fate street name and addresses required . Private street shall be developed to City Standards as a Local Access 2-way Street . Require information on road cross-section . ROW dedication to create a SO-foot wide right-of-way is required. . Sidewalk plan needs revision to extend through the private road tract entrance per City Standards . Shall design the street for the full 39-foot road section . Sidewalk is required along Sylvan Way . Detailed storm drainage report with engineered plan for treatment, detention and conveyance shall be provided prior to final plat approval . Revise water utility plan, there shall be a fire hydrant at least 250 feet from a building . An 8-inch main to a hydrant shall replace the existing 4-inch AC main . Sewer plan lacks detail and is unclear regarding what is being proposed Fire . Street or road signs shall be provided for all private and public roads . Roads shall be designed to support the imposed loads of fire apparatus and shall have an all-weather surface . Approved water supply to handle fire flow shall be provided . Fire hydrants per (FC Appendix Band C required . Fire hydrants shall be located so that there is at least 1 hydrant within 1S0 feet of structures and no portion of the structure is further than 300 feet from . If buildings are equipped with sprinkler systems, the distance requirement is 600 feet Cross Connection Control None received Traffic Ok ,~", ",~!:.", '.""f,l ":,"' i <., , . .~ ~ ,~~ ,.,,1;' .,~ )~~ ,~: ':;.;' -', _ --;, ~" .' '. '~ 'I ; ~ ,~~ _. ' '" ' !'<. ' _ ' : Department of None Community, Trade and Economic Development Puget Sound Water None Quality Action Team Suquamish Tribe None Department of Fish & None BP04-00334 9 of 13 Wildlife Department of None Transportation Department of Natural None Resources Department of None Transportation Department of Ecology None Kitsap Transit None Bremerton - Kitsap None County Health District Kitsap County None Department of Community Development 30. PUBLIC COMMENTS RECEIVED: . -~- . ~ ' . ,: ~ ~ .' .' ~ ' " ~".. ~ " . ,'," ~ ' . ';",' ',": '. . None 1. A Determination of Nonsignificance (DNS) was issued February 9,2005. Notice was posted on the property and published in The Sun newspaper on this date. 2. Notification was sent to properties within a 300-foot radius of the subject property (See APPENDIX I). Notification was provided as follows: Application received: November 9,2004 Determination of Completeness December 7, 2004 Notice of Application December 13,2004 DNS published February 9, 2005 Notice of Hearing February 9, 2005 FINDINGS: The City of Bremerton Department of Community Development makes the following findings in support of a recommendation: 1. The subdivision is consistent with the Comprehensive Plan. The smaller lot sizes will provide affordable housing for the City of Bremerton. It reduces sprawl by locates new residential development where public services are already available. 1 BP04-00334 10 of 13 2. The proposal is consistent with identified zoning standards. The proposed subdivision will create 11 lots ranging from 4,000 square feet to 4,853 square feet in area. Lot widths will vary from 40 to 60 feet. The completed project will yield eleven residential units on approximately 1.39 acres. 3. The traffic generated by the subdivision can be accommodated safely and within the adopted Levels of Service for affected streets. Improvements to the right-of-way will improve traffic flow conditions and the subdivision will have only a minor impact to the level of service in the area. 4. The proposed development will be adequately served by existing facilities and services. The subject property has City of Bremerton water and sewer available to it. 5. The public use and interest will be served by the creation of eleven single-family residential lots complying with City of Bremerton zoning standards. The proposed plat will provide increased housing opportunities for residents of Bremerton in a manner consistent with the criteria for approval of preliminary plats. 6. Environmental review of the proposal indicated that it would not result in any significant adverse environmental impacts. A Determination of Nonsignificance (DNS) was issued February 9, 2005 utilizing the Optional DNS process under WAC 197-11-355. 7. The Notice of Application was published in The Sun newspaper and posted on the property on December 13,2004. Notices were mailed to property owners within 300 feet of the site and state and local agencies. A 30-day public comment period was utilized and no comments were received. 8. Notice of Hearing was published in The Sun newspaper and posted on the property on February 9, 2005. Notices were mailed to property owners within 300 feet of the site. CONCLUSION If approved, subject to the following conditions, the preliminary subdivision would comply with the City of Bremerton Comprehensive Plan and applicable Bremerton Municipal Code development regulations. 1. The access easement located adjacent to the west property line shall be developed to the City's Local Access Two Way street standards. The property owner shall be responsible for improvements meeting City standards per the Public Work's letter dated January 28,2005. Improvements shall be installed or bonded for prior to final plat approval. BP04-00334 11 of 13 2. A 20-foot wide dedication of public right-of-way is required per the submitted site plan received November 9, 2004. The dedication shall be included on the face of the final plat 'and the City Engineer must approve the language for the dedication. 3. Road Tracts A & B shall be developed to the City's Shared Driveway Access street standards. Improvements shall be installed or bonded for prior to final plat approval. 4. The final plat shall contain language regarding shared ownership and maintenance responsibilities for private Road Tracts A & B. 5. The final plat shall contain language that no on-street parking shall be allowed on Road Tracts A & B. 6. Frontage improvements, including sidewalks, associated storm drainage and conduit runs for future street lighting, are required to be installed or bonded for prior to final plat approval. All improvements shall meet City Engineering standards set forth in Bremerton Municipal Code Title 15. 7. The Public Works conditions set forth in the Water and Sewer Availability letter dated January 22, 2004 shall be included as conditions for approving the final plat. The water main extension shall be installed or bonded for prior to final plat approval. 8. A final storm drainage and grading plan shall be submitted to the Public Works Department that meets the City Engineer's approval. All storm drainage systems shall be installed or bonded for prior to final plat approval. 9. Street identification signs are required per the City standards set forth in Engineering Standards 3251 through 3300. The street sign shall be installed or bonded for prior to final plat approval. 10. A fire hydrant meeting City standards is required. The fire hydrant shall be installed or bonded for prior to final plat approval. If the fire hydrant is bonded for, the hydrant must be installed and operational prior to any construction above building foundations. 11. The storm drainage facilities located on Tract C shall be landscaped according to BMC Section 21.02.700(a)(I). A landscaping plan that is acceptable to the City must be submitted prior to final approval. The landscaping shall be installed or bonded for prior to final plat approval. 12. The final plat shall contain language regarding shared ownership and maintenance responsibilities for the storm drainage facilities and the associated landscaping. 13. Addresses for the individual lots shall be obtained from the Public Works department and shall be indicated on the final plat. BP04-00334 12 of 13 14. A survey of the proposed final subdivision and preparation of the plat shall be made by or under the supervision of a Washington Sate registered land surveyor who shall certify on the plat that' it is a true and correct representation of the lands actually surveyed. Two (2) copies of the lot closures shall be submitted with the application for final approval of the plat. 15. For the right-of-way dedication: a waiver of all claims for damages against any government authority, which may be occasioned to the adjacent land by the established construction, drainage and maintenance of said road shall be included on the final plat. 16. A final plat meeting applicable development standards and conditions shall be submitted to the Department of Community Development for approval within five (5) years of the date of preliminary plat approval. 17. Two copies of the plat certificate shall be submitted with the application for final approval of the plat. 18. Six (6) copies of the plat (not Mylar) shall be submitted to the Department of Community Development for final compliance review. 19. The subdivision shall be vested for five (5) years following final plat approval in the allowed uses and development standards for Low-density Residential (DR) zoning, which were in effect on November 9,2004. 20. A copy of the recorded plat shall be provided to the Department of Community Development after it is record with the Kitsap County Auditor and before building permits can be issued. END OF STAFF REPORT SIGNATIJRE OF STAFF PREPARING REPORT: 4 +CJ~ . ~ " ._- Robert J. Grumbach, AICP Current Planner BP04-00334 13 of 13 ...-; ~. - ,r.....r)Q.. ....,......"')... txr':1I~~tr.J ~~ --- ...,---... -- l ... ~ Nn/ iUIfI . : GAWYJI ~:;..:.~ . \ I at~'aN" ~ ~ J.YllMIIW ....CI..~O'f.r.t1~........." r:r--DS"II&L -- *- ~ NDIS3CI AI.va -- ..- or_- I ..1 r '", ... Ii Iii III I III Il! I~ ~ 1!llll ! ~r.!!! II! III ; ~!!~! illl I! II .. iU i!1 BI.i h! hI ><~ Iml ~ ~ ud. ~ ~ I I ~! iPi' i I I ~I I . II 1~';.ls'ill;;II_11111 i :ili!'!'1I1111'ililll; II i I &s~ Is!!lli'" lil,";II'"~II= II II I~I ' I~ ~ 11!!;ilill~I;I!lli~! 1111; 1IIIIIIi Iii hi E:: II II IG~l!lll I"i! I Illullllllll I I Ii I .. !;; :::El ~ 1;11 r;Sil!I!! 1=llli- ~ ~~~IIIII~~I~ III Iii! ! ~, I ,~ Ial l;j 1l11'!illl'"llililb'l!lli! ils 23 ~Il!llili! ill ~II-;a!illl rai ~ 1'"1 III a 1i!1'"1' I! ,l!i~ I il!II.."'IDlltnm pi - ~ ,"iJil! li;IIi!;11 H: Ii S ~ II" · I 'f ,'" ~ lei I lilt III c :t I! i .... ~ Illi,"llill~l~ill!I!I;; o...~z t:lt~ '" ~!:j~ ~OON ~J~ U) ~ I .' -I rn ::it " . " @ rn UJ "" I ... r L C\l ' L_'- U gY'/ -- -~--- , , . , I, .... @ @ :'l " P,~::L r:.:i LlI:C;,'Z:~ 'V1V Zt:8Z:~l tOOZ/L/Z~ '5Mp'J81SDWZOI:\NOI1VOllddV 3L31dV'iOo\5MP\UD^IAS @ A8U88MS ZOI:\:X - -- ---- City of Bremerton Department of Community Development DETERMINATION OF NONSIGNIFICANCE PROPOSAL: Subdivision to divide a 1.39-acre Low-density Residential (DR) zoned parcel into 11 residential lots plus road tracts; to balance cut and fill approximately 2,500 yards of material FILE NUMBER: BP04-00412 LOCATION: Northeast intersection of Rickey Road and Sylvan Way Tax ID: 022401-3-061-2005 PROPONENT: Mark Sweeney LEAD AGENCY: Department of Community Development The SEPA Responsible Official of the City of Bremerton hereby makes the following Findings and Conclusions based upon a review of the Environmental Checklist, comments received in response to the Notice of Application issued on August 24, 2004, other information on file with the City of Bremerton, and the policies, plans and regulations designated by the City of Bremerton as a basis for the exercise of substantive authority under the Washington State Environmental Policy Act (SEPA) pursuant to RCW 43.21C.060. FINDINGS OF FACT: 1. The applicant submitted an application for an 11-lot subdivision on November 9, 2004. 2. Notification was mailed to state agencies and property owners within 300 feet of the property on December 10 2004. Legal notice was published in The Sun newspaper and posted on the property on December 13, 2004. No comments were received. 3. There were no wetlands, geologically hazardous areas, wildlife habitat or other environmentally sensitive lands identified on the site. 4. The proposal will have no significant impact on animals, water, noise, environmental health, public services or land use. 5. No significant historic or cultural resources have been identified within the proposed project site. CONCLUSIONS OF RESPONSIBLE OFFICIAL: The Responsible Official concludes that the proposal does not have a probable significant impact on the environment, and an Environmental Impact Statement is not required pursuant to RCW 43.21.C.030(2)(c). This decision is made after a review of the completed Environmental Checklist, other information in the file with the City of Bremerton, and existing regulations. This information is available to the public upon request. - This Determination of Nonsignificance (DNS) is issued after using the optional DNS process in WAC 197-11-355. There is no further comment period on the DNS. RESPONSIBLE OFFICIAL: Christopher R. Hugo, Director Department of Community Development City of Bremerton 286 Fourth Street Bremerton, W A 98337 STAFF CO NT ACT: Robert Grumbach, AICP, (360) 473-5379 DATE OF ISSUE: February 9, 2005 DATE OF PUBLICATION: February 9, 2005 APPEAL DEADLINE: February 24, 2005 hr,sLopher R. \ APPt"::ALS: Pursuant to RCW 43.21 C.075 and City of Bremerton environmental regulations (BMC Chapter 21.12.210), decisions of the Responsible Official may be appealed. Appeals must be filed by a person with standing with the appropriate fees at the Department of Community Development located at the Bremerton Permit Center, 286 Fourth Street, Bremerton, 98337. Appeals must be filed by the date indicated above as "Appeal Deadline." If you appeal, you should be prepared to make specific factual objections. NOTE: The issuance of this DNS does not constitute project approval. The applicant must comply with all other applicable requirements of the City of Bremerton and the State of Washington. 2 . 6fo4 0()4-(3 CITY OF BREMERTON. WASHINGTON 3cX O.bf4 .. ENVIRONMENTAL CHECKLIST OH~(g~ U W 1. Name of proposed project, if applicable: u-u 0 ,) 2004 Sylvan Plat BREMEHTON 2. Name of applicant: reUlLOtNGrJERARTMe,rr Mark Sweeney 3. Address and phone number of applicant and contact person: Mark Sweeney 7634 Clover Blossom Lane Bremerton, WA 98310 (360) 692-8802 Contacts: Mark A. Kuhlman, Engineer Team 4 Engineering 5819 NE Minder Rd Poulsbo, WA 98370 (360) 297-5560 4. . Date checklist prepared: August26,2004 5. Agency requesting checklist: City of Bremerton Department of Community Development 6. Proposed timing or schedule (including phasing, if applicable): Construction may begin in the spring of 2005. The construction the new single family residences may be phased according to sales. 7. Do you have any plans for future additions, expansions, or further activity related to or connected with this proposal? No. 1 8. list any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal: None known. 9. Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? If yes, explain. None known. 10. list any government approvals or permits that will be needed for your proposal, if known: Application for Preliminary Subdivision by City of Bremerton. Application for Final Plat by City of Bremerton. 11. Give brief, complete description of your proposal, including the proposed uses and the project and site. There are several questions later in this checklist that ask you to describe certain aspects of your proposal. You do not need to repeat those answers on this page. (Lead agencies may modify this form to include additional specific information on project description. ) The proposal consists of the development of 11 Single-family residence lots on the 1.39-acre parcel. Development includes the construction of 11 lots, 3 tracts and some land dedicated to Right-of-Way. Tract A will contain an access road and utilities. Tract B will contain an access road and utilities. Tract C will contain the Stormwater management facility, located in the southwestern portion of the parcel. The Right-of-Way dedication will occur on the West edge of the property. Utilities to be installed include water mains, sanitary sewer mains, electric power, natural gas, and telephone. Stormwater will be conveyed to and detained in a stormwater detention vault. Water quality enhancement will be provided by storage of the 6-month, 24-hr Stormwater volume in a wet vault. 2 12. Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section. township. and r..nge, if known. If a proposal would occur over a range of area, proVide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans submitted with any permit applications related to this checklist. The project is located in Bremerton, northeast of the intersection of Rickey Road and Sylvan Way. The site is accessed from Sylvan Way. It is located in the Northwest quarter of the Northeast quarter of Section 2, Township 24 North, Range 1 East, W.M., in Kitsap County, Washington. See application for complete legal description. See site plans for vicinity map and topographic mapping. 3 ( ENVIRONMENTAL ELEMENTS robe Completed by Applicant 1. Earth a. General description of the site (Bold): Flat, rolling, hilly, steep s.lopes, mountainous, other: b. What is the steepest slope on the site (approximate percent slope)? The steepest slope onsite is approximately 11 %. Slopes range from 2 to 11 %. c. What general types of soils are found on the site (for example, clay, sand gravel, peat, muck)? If you know the classification of agricultural soils, specify them and note any prime farmland. According to the SCS Soil Survey for Kitsap County, soils are predominately: Alderwood very gravelly sandy loam, 0 to 15% slopes. d. Are there surface indicators or history of unstable soils in the immediate vicinity? If so, describe. None found. e. Describe the purpose, type, and approximate quantities of any filling or grading proposed. Indicate source of fill. The project will have a balanced cut and fill across the project area of approximately 2,500 cubic yards. Strippings will be used onsite in landscaping areas to eliminate the need for export from the site. f. Could erosion occur as a result of clearing, construction, or use? If so, generally describe. Yes, some erosion could occur if significant rain falls during the construction phase of the project. See Temporary Erosion Control measures below to I mitigate any erosion. 4 I : g. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)? Approximately 68% of the site will be covered by buildings, paving, or other impervious surfaces. h. Proposed measures to reduce or control erosion, or other impact to the earth, if any: A temporary erosion and sedimentation control plan will be submitted to the City prior to construction. The plan will require the use of Best Management Practices throughout tl;'te construction. This may include the following; vegetation retention, earth covering, filter fabric fences, stabilized construction entrances, hydroseeding, sediment traps, and other BMP's. 2. Air 8. What types of emissions to the air would result from the proposal (i.e., dust, automobile, odors, industrial, wood smoke) during construction and when the project is completed? If any, generally describe and give approximate quantities if known. During construction there will be some dust and emissions from construction equipment. Upon project completion, the normal emissions from traffic by residents and guests can be expected. b. Are there any off-site sources of emissions or odor that may affect your proposal? If so, generally describe. None known. c. Proposed measures to reduce or control emissions or other impacts to air, if any: Watering will be used to control dust during construction. Yards will be landscaped after construction. S 3. Water a. Surface 1) Is there any surface water body on or in the immediate vicinity of the site (including year-round and seasonal streams, saltwater, lakes, ponds, wetlands)? If yes, describe type and provide names. If appropriate, state what stream or river it flows into. None known. 2) Will the project require any work over, in, or adjacent to (within 200 feet) the described waters? If yes, please describe and attach available plans. Not applicable. 3) Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. Indicate the source of fill material. Not applicable.. 4) Will the proposal require surface water withdrawals or diversions? Give general description, purpose, and approximate quantities if known. Not applicable. 5) Does the proposal lie within a 100..year floodplain? If so, note location on the site plan. No. 6) Does the proposal involve any discharges of waste materials to surface waters? If so, 6 describe the type of waste and anticipated volume of discharge. No. b. Ground 1} Will ground water be withdrawn, or will water be discharged to ground water? Give generaldescription,pu~ose,and approximate quantities if known. No. 2) Describe waste material that will be discharged into the ground from septic tanks or other sources, if any (for example: Domestic sewage; industrial, containing the following chemicals, agricultural, etc.). Describe the general size of the system, the number of such systems, the number of houses to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. None. c. Water Runoff (including storm water): 1) Describe the source of runoff (including storm water) and method of collection and disposal, if any (include quantities, if known). Where will this water flow? Will this water flow into other waters? If so, . describe. A Stormwater collection/conveyance system will be developed to convey Stormwater to the proposed Stormwater management facilities. The Stormwater management facilities will include a shallow detention vault that will detain Stormwater and release it at allowable predeveloped runoff rates. A wet vault will provide Stormwater quality enhancement. 7 2) . Could waste materials enter ground or surface waters? If so, generally describe. It is possible that a small amount of auto or household wastes could enter the drainage system. d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: An oillwater separator and a wet vault will be used for quality enhancement of all Stormwater collected from the developed basin. 4. Plants a. Check or bold types of vegetation found on the site: X deciduous tree: alder, maple, aspen, other X evergreen tree: fir, cedar, pine, other X shrubs grass pasture crop or grain wet soil plants: cattail, butteroup, bulrush, skunk cabbage, other: water plants: water lily, eelgrass, milfoil, other other types of vegetation: b. What kind and amount of vegetation will be removed or altered? Vegetation required for project construction will be removed. A majority of the developable area is currently covered with small trees and shrubs. All of the existing vegetation will be removed. c. List threatened or endangered species known to be on or near the site. None known. 8 d. Proposed landscaping, use of native plants, or othe~ measures to preserve or enhance vegetation on the site, if any: Areas around the homes will be covered with lawns and landscaping. Tract C will be covered with grasses. 5. Animals a. Bold any birds and animals which have been observed on or near the site or are known to be on or near the site: birds: hawk, heron, eagle, songbirds, other: mammals: deer, bear, elk, beaver, other: fish: bass, salmon, trout, herring, shellfish, other: _ b. list any threatened or endangered species known to be on or near the site. None known. c. Is the site part of a migration route? If so, explain. No. d. Proposed measures to preserve or enhance wildlife, if any: None. 6. Energy and Natural Resources a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy, manufacturing, etc. Electricity and natural gas will be used for lighting, cooking and heating. 9 ; , b. Would your project affect the potential use of solar energy by adjacent properties? If so, generally describe. No. c. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: The project will comply with applicabJe energy codes. 7. Environmental Health a. Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that could occur as a result of this proposal? If so, describe. No. 1) Describe special emergency services that might be required. None. 2) Proposed measures to reduce or control environmental health hazards, if any: None. b. Noise 1) What types of noise exist in the area which may affect your project (for example: traffic, equipment, operation, other)? Traffic on Sylvan Way adjacent to the project produces typical traffic noise. 10 2) . What types and levels of noise would be . created by or associated with the project on a short-term or a long-term basis (for example: traffic, construction, operation, other)? Indicate what hours noise would come from the site. Construction noise will be generated during normal business hours on a short-term basis during construction. Long-term noise typical of residential development will be generated. 3) Proposed measures to reduce or control noise impacts, if any: Construction will be limited to normal business hours. 8. land and Shoreline Use a. What is the current use of the site and adjacent properties? The site is currently vacant with small trees and shrubs. Adjacent uses are as follows; North: Single-family residential. East: Single-family residential. South: Single-family residential. West: Single-family residential. Has the site been used for agriculture? If so, describe. No. b. Describe any structures on the site. None exist. c. Will any structures be demolished? If so, what? None proposed. 11 d. What is the current zoning classification of the site? . Duplex Residential. e. What is the current comprehensive plan designation of the site? The site is designated Duplex Residential. f. If applicable, what is the current Shoreline Master Program designation of the site? Not Applicable. g. Has any part of the site been classified an "environmentally sensitive" area? If so, specify. No. h. Approximately how many people would reside or work in the completed project? About 50 people will live in the completed project. i. Approximately how many people would the completed project displace? None. The parcel is currently vacant. j. Proposed measures to avoid or reduce displacement impacts, if any? None. required. k. Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: The proposal agrees with current zoning and comprehensive plan designations. 12 9. Housing 8. Approximately how many units would be provided, if any? Indicate whether high-, middle-, or low-income housing. The project will create 11 single-family residences. b. Approximately how many units, if any, would be eliminated? Indicate whether high-, middle-, or low-income housing. None. c. Proposed measures to reduce or control housing impacts, if any: None. 10. Aesthetics a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed? The tallest structure will not exceed the 30-foot height limit for Duplex Residential zoning. The homes will have wood or wood like siding. b. What views in the immediate vicinity would be altered or obstructed? Neighbors' views of trees and brush will be replaced with buildings and landscaping. c. Proposed measures to reduce or control aesthetic impacts, if any: None proposed. 13 11. light and Glare a. What type of light or glare will the proposal produce? What time of day would it mainly occur? Street lighting and residential lighting will produce some glare, mostly at night. b. Could light or glare from the finished project be a safety hazard or interfere with views? No. c. What existing off-site sources of light or glare may affect your proposal? Some existing residences to the west, south and north have typical home lighting. d. Proposed measures to reduce or control light and glare impacts, if any: Streetlights will be hooded to direct light downward. 12. Recreation a. What designated and informal recreational opportunities are in the immediate vicinity? None. b. Would the proposed project displace any existing recreational uses? If so, describe. No. c. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be provided by the project or applicant, if any: None. 14 13. Historic and Cultural Preservation a. Are there any places or objects listed on, or proposed for, national, state, or local preservation registers known to be on or next to the site? If so, generally describe. None known. b. Generally describe any landmarks or evidence of historic, archaeological, scientific, or cultural importance known to be on or next to the site. None known. c. Proposed measures to reduce or control impacts, if any: None. 14. Transportation a. Identify public streets and highways serving the site, and describe proposed access to the existing street system. Show on site plans, if any. The site is accessed from Sylvan WaYI which connects State Route 303 (Wheaton Way) between Riddell Road and Sheridan Road. b. Is site currently served by public transit? If not, what is the approximate distance to the nearest transit stop? Yes. Kitsap Transit Route #25 makes a regular stop at Rickey Road and Sylvan Way. c. How many parking spaces would the completed project have? How many would the project eliminate? The project will provide only off street parking in garages and driveways associated with the new homes. 15 d. Will the proposal require any new roads or streets, or improvements to existing roads or streets, not including driveways? If so, generally describe (indicate whether public or private). The proposal includes development of 2 private streets that will connect to a proposed publiC street to be located in a proposed public right-of-way. The proposed public street will connect to Sylvan Way. e. Will the project use (or occur in the immediate vicinity of) water, rail, or air transportation? If so, generally describe. No. f. How many vehicular trips per day would be generated by the completed project? If known, indicate when peak volumes would occur. The addition of 11 single-family residences will generate about 11 0 total daily trips. The peak volumes are likely to occur between 7-9 AM and 4-6 PM. g. Proposed measures to reduce or control transportation impacts, if any: None proposed. 15. Public Services a. Would the project result in an increased need for public services (for example: fire protection, police protection, health care, schools, other)? If so, generally describe. As is typical of residential developments, some increased need for all public services will be required. b. Proposed measure to reduce or control public service impacts, if any: Impact fees will be assessed and paid as is typical with new res4dential development. 16 16. Utilities a. Bold utilities currently available at the site: electricity, natural gas, water, refuse service, telephone, sanitary sewer, septic system, other. b. Describe the utilities that are proposed for the project, the utility providing the service, and the general construction activities on the site or in the immediate vicinity, which might be needed. . Electricity: Puget Sound Energy Services Water: City of Bremerton Sanitary Sewer: City of Bremerton Refuse Service: Brem-Air Waste Management Telephone: Owest Communications Natural Gas: Cascade Natural Gas SIGNATURE The above answers aFe true and complete to the best of my knowledge. I U~de1S~al.{;jd ~ge" i~m to make its decisions. Signature: I ~/ ,lUA . Date: ~ ~JoV DP 17 RESOLUTION NO. ~ 9 (Po A RESOLUTION of the City Council of the City of Bremerton, Washington, approving the preliminary plat (file No. BP04-00412) for Sylvan Plat. WHEREAS, the City received a Preliminary Plat application for "Sylvan Plat" from Mark Sweeney; and WHEREAS, on February 28, 2005 the City Administrative Hearing Examiner held an open-record hearing on the application pursuant to BMC 21.02.855; and WHEREAS, The City's Administrative Hearing Examiner has submitted recommended findings to the City Council; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby approves and adopts the findings, conclusions and recommendation of the Administrative Hearing Examiner attached as Exhibit "A" and approves the preliminary plat for "Sylvan Plat" (File No. BP04-00412) subject to the proposed conditions contained in Exhibit "A." SECTION 2. 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\Resolutions\Community Development\Sylvan Preliminary Plat Resolution.doc 1 Sylvan Preliminary Plat Approval BEFORE THE HEARING EXAMINER OF THE CITY OF BREMERTON In the Matter of the Application of ) NO. BP04-00412 ) Mark Sweeney ) Sylvan Plat ) For approval of a Preliminary Plat ) FINDINGS, CONCLUSIONS, AND ) RECOMMENDATION ) SUMMARY OF REQUEST AND RECOMMENDATION Mark Sweeney (Applicant) requests approval of a preliminary plat to divide a 1.39 acre parcel located at the northeast intersection of Rickey Road and Sylvan Way into 11 building lots and three tracts (for roads and a storm water retention facility). 1 The Hearing Examiner recommends that the request be APPROVED, subject to conditions. CRITERIA FOR REVIEW Bremerton Municipal Code (BMC) Chapter 21.02.855 contains the City of Bremerton's requirements for processing a preliminary plat application. This chapter requires that the Hearing Examiner hold an open record hearing on the matter and make a written recommendation to the City Council based on the record developed at the hearing. The City Council then makes the final decision following a closed record hearing. The City of Bremerton has not adopted a subdivision ordinance. Therefore, the requirements set forth in the Revised Code of Washington (RCW) g58.17 govern the Hearing Examiner's recommendation and the City Council's decision. According to RCW S58.17 .11 0, before a preliminary plat can be approved, it must be determined in written findings that the public interest will be served by the subdivision. Specifically, it must be determined that the preliminary plat makes provisions "for the public health, safety, and welfare, for open spaces, drainage ways, streets or roads, alleys, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools, and sidewalks for safe walking conditions". 1 The parcel's legal description is "Parcel A: That portion of the east V2, west Yz, southeast %, northeast ~, southwest ~ of Section 2, Township 24 North, Range 1 East, Willamette Meridian. Except the North 240 feet as measured along the east and west sides of said subdivision and except the south 30 feet deeded to the City of Bremerton for Sylvan Way by instrument recorded under Auditor's file no. 825424 and except that portion described in instrument recorded under Auditor's file no. 814143. The Tax Assessor Account Numbers is 022401-3-061-2005. Exhibit 1, page 1,' Exhibit 1, Attachment d, page 1. l~ j-C;! -~.~ o lS OJ Findings, Conclusions, and Recommendation J1.1 MAR 1 .1 2005 Hearing Examinerfor City of Bremerton ._~ Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 1 of9 EXHIBIT A .- BREMEf-1TOi,j.DEPT: OF COMMUNllY DEVEl.OPMENT The Hearing Examiner's recommendation and the City's decision must also be consistent with the City of Bremerton's Comprehensive Plan (See BMC ~21.02.040). The following provisions of the Comprehensive Plan apply to the current application: PLANNING GOALS Goal # 1 Urban Growth: Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner. Supporting Policy (3): Accommodate new development with care so that Bremerton will continue to be a well-balanced "most livable city." Goal # 2 Reduce Sprawl: Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development. Supporting Policy (5): Promote the concept of development clustering to conserve energy, save land, lower public costs, reduce sprawl, and provide open space. Goal # 4 Housing: Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock. Supporting Policy (3): Provide continuing opportunities for a range of housing types and densities that will accommodate the lifestyles and economic levels of present and future residents. HOUSING ELEMENT Goal D (2) New Housing Development: Provide a variety of housing types and densities to meet changing needs of Bremerton residents. Supporting Policy (3): Stimulate the production of new housing for all income, age, family type and ethnic groups. Goal D (4) Livable Neighborhoods: Build strong, livable neighborhoods where the American Dream of home ownership is possible for a majority of Bremerton Residents. Supporting Policy (5): Promote safe, attractive, livable neighborhoods that will attract homeowners. Supporting Policy (6): Increase opportunities for home ownership within the City. Promote expanded home ownership opportunities for low and moderate income I households. SUMMARY OF RECORD AND HEARING I An open record public hearing was held before the Hearing Examiner of the City of Bremerton on February 28, 200S.The record is developed at the open record public hearing. The Hearing Examiner makes a written recommendation regarding the proposed preliminary plat to the City Council based solely on the record presented at the hearing. The following individuals submitted testimony under oath at the hearing: Findings. Conclusions. and Recommendation Hearing Examinerfor City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision. No BP04-00412 Page 2 019 1. Robert Grumbach, City of Bremerton Planner 2. Ron Cleaver, Jr., representative of Applicant The following exhibits were admitted to the official record at the hearing: Exhibit 1 Staff Report dated February 28,2005. Attachment A: PUD Application dated November 9,2004 Attachment B: SEPA Determination dated February 9,2005 Attachment C: Comprehensive Plan Designation Map Attachment D: Easement Document Attachment E: Public Works Letter dated January 28, 2005 Attachment F: Water and Sewer Availability Letter dated January 22,2004 Attachment G: Preliminary Storm Water Report dated August 26, 2004 Attachment H: City and State Agency Comments Attachment I: Affidavit of Notice dated February 9, 2005 Attachment J: Site Plan Exhibit 2 Slides of Power Point presentation given by Robert Grumbach Exhibit 3 Map showing parks and schools in vicinity FINDINGS Based on the record outlined above, the Hearing Examiner enters the following Findings and Conclusions regarding the proposed preliminary plat: 1. The Applicant requests approval of a preliminary plat to divide a 1.39 acre parcel located at the northeast intersection of Rickey Road and Sylvan Way in Bremerton, Washington into 11 building lots and three tracts for roads and a storm water retention facility. Tract A will contain an access road and utilities. Tract B will contain an access road and utilities. Tract C will contain the storm water retention facility. Exhibit 1, page 1; Exhibit 1, Attachment A; Exhibit 1, Attachment B, page 15; Exhibit 1, Attachment J. 2. The preliminary plat application was received on November 9,2004. The application was determined complete on December 7, 2004. As of December 7, the subject property was zoned residential low-density (DR). The intent of DR zoning is to maintain neighborhoods of predominantly single and two unit structures. The zone allows a density of eight dwelling units per acre, a minimum single-family dwelling unit lot size of 4,000 square feet, and a maximum lot size of 6,000 square feet. The density for the proposed project is 7.9 dwelling units per acre. The lot sizes range Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 30f9 from 4,000 square feet to 4,853 square feet, and comply with the requirements for single-family dwellings in this zone. Exhibit 1, pages 2-3, 11; Exhibit 1, Attachment I; Testimony of Mr. Grumbach. 3. Following the determination of a complete preliminary plat application, the Bremerton City Council adopted an updated Comprehensive Plan. The updated comprehensive plan designated the subject property as "Low Density Residential" (LDR). The new zoning designation to implement the comprehensive plan will be R- IO. The updated zone increases the minimum lot size from 4,000 square feet for single-family dwellings to about 4,300 square feet. Some of the lots in the proposed project will not comply with the new R-lO zone but, pursuant to RCW 58.17.170, the application vests to the zoning standards in effect on December 7, 2004. Exhibit 1, page 2; Exhibit 1, Attachment J. 4. Surrounding areas to the north, west, and east are zoned "Residential Low-Density" (DR). The surrounding area to the south is zoned "Residential Low-Density" (SR-3). Duplex residences are to the north and west, and single-family residences are to the south and east of the proposed project. Exhibit 1, page 2; Exhibit 1, Attachment B, page 13. 5. The definition of "lot" in BMC ~21.02.070 requires a minimum of 20 feet of frontage on either a public or private street. A minimum lot width of 40 feet is also required. All proposed lots comply with these requirements. Exhibit 1, page 5. Exhibit 1, Attachment A. 6. BMC ~21.02.700(a)(I) requires non-residential structures to have landscaping or a combination of landscaping and fencing to provide a year-round sight barrier to sights that abut any SF or DR zoning district. Additionally, one tree per 25 lineal feet of street frontage is also required. The storm water retention facility located on Tract C is considered a non-residential structure and must comply with these requirements. No landscaping is currently shown on the preliminary plan. Exhibit 1, page 6; Exhibit 1, Attachment A. 7. The site is currently undeveloped. The land is mostly flat, with a slope ranging from two to eleven percent. Alder, maple, fir, and cedar trees, along with other grasses and shrubs, cover the site. No critical areas were identified on the site. There are no threatened or endangered species known to be on or near the site. Songbirds currently live on the site. Exhibit 1, pages 2, 6; Exhibit 1, Attachment B, pages 9-10, 11,14. 8. The City of Bremerton does not require an open space set aside for this project. Exhibit 1, Attachment A. 9. Access to the site will be provided through a 50 foot public right of way that will extend north from Sylvan Way. A dedication S)f approximately 8,277 square feet, or Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 40f9 a 20 foot wide.strip, in addition to the existing 40 foot access easement, will be required to create the r~ght of way. The right of way will be developed to the standards of a Local Access Two Way Street and will include sidewalks on both sides. The City Engineer will require the future development of an eight foot wide parking strip along the west side of the street, but will not require a bike lane. Lots 1 through 4 will access the right of way through Private Road Tract A and Lots 6 through 11 will have access through Private Road Tract B. Sidewalks will extend through Private Road Tracts A and B. Exhibit 1, pages 6-7; Exhibit 1, Attachment A; Exhibit 1, Attachment B, page 18. Exhibit 1, Attachment J. 10. Signs are required to identify the new right of way. All street signs are required to meet City standards as provided in the City of Bremerton's Engineer Standards 3251 through 3300. The installation of the signs will be conditions of final plat approval. Exhibit 1, page 8. 11. Frontage improvements, including sidewalks, associated storm drainage and conduit runs for future street lights, are required along Sylvan Way. The installation of these improvements will be conditions of final plat approval. Exhibit 1, page 8. 12. A fire hydrant is required to be within 250 feet of the proposed preliminary plat per Appendix C of the International Fire Code for residential development pursuant to BMC ~ 18.02.060. The installation of the fire hydrants will be a condition of final plat approval. Exhibit 1, page 8; Exhibit 1, Attachment J; BMC *18.02.060. 13. The City Engineer evaluated the proposal for traffic impacts and determined that a traffic study is not required pursuant to BMC S 11.12.060. The proposed development is anticipated to generate an increase of 5.43 Weekday PM Peak Vehicle Trips per hour. This is an increase of 40.4 Weekday Average Vehicle Trips per day. This is not a significant impact and it will not affect the free flowing traffic of the existing level of service on Sylvan Way. The area is served by Kitsap Transit; Route 25 makes a regular stop at Rickey Road and Sylvan Way. Exhibit 1, page 11; Exhibit 1, Attachment B, page 17; Exhibit 1, Attachment H, page 1. 14. The City of Bremerton's Public Works & Utilities Engineering Division issued a letter of conditional water and sewer availability to the project on January 22, 2004. Water and sewer service was approved conditional upon conformance to the City's Comprehensive Land Use Plan and zoning ordinance. Water service is conditionally available within the easement to the east of the proposed plat. Sewer service is conditionally available in the easement to the west of the proposed plat. Exhibit 1, Attachment F; Exhibit 1, page 11. 15. A storm water retention facility will be located on Tract C. This facility will include a shallow detention vault that will retain storm water and release it at allowable runoff rates. An oil and water separator and a wet vault will be used for quality enhancement Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision. No BP04-00412 Page 50f9 of all storm water collected from the developed basin. Exhibit 1, Attachment B, pages 9-10. 16. Blueberry Park is the nearest park to the proposed plat. It is located approximately 900 feet to the southeast of the subject parcel. The nearest school is Armin J ahr Elementary School. It is located approximately 1,200 feet to)he southeast of the proposed plat. The School District did not comment on this application. Exhibit 3. 17. Pursuant to the State Environmental Policy Act (SEP A), the application was reviewed for possible environmental impacts. The City of Bremerton Department of Community Development was designated lead agency and the Responsible Official concluded that the project would have no probable significant environmental impact. A Determination of Nonsignificance was issued on February 9, 2005, and became final on February 24, 2005. No public comments were received regarding the proposed preliminary plat. Exhibit 1, page 11; Exhibit 1, Attachment B, page 1. 18. The Notice of Application was published in The Sun and posted on the property on December 13,2004. Notices were mailed to state and local agencies, and property owners within 300 feet of the site. The notice of public hearing was published in The Sun and posted on the property on February 9, 2005. Notice of the hearing was mailed to property owners within 300 feet of the site. Exhibit 1, page 11; Exhibit 1, Attachment I; Testimony of Mr. Grumbach. . Conclusions Based on Findings 1. With conditions of approval, appropriate provision would be made for the public health, safety, welfare, and aU other requirements of RCW ~58.17.110. Storm water runoff from new roads will be treated in a storm water retention facility located on Tract C. Water and sewer service is available to the proposed project. There is a transit stop located near the proposed development. A set- aside for open space is not required for this project. Adequate emergency access will be provided by the new right-of-way. Sidewalks will be installed throughout the proposed project to provide safe walking conditions. Findings of Fact 1-18. 2. With conditions of approval, the public use and interest will be served by approval of the preliminary plat. Roads, storm drainage, and public utilities connections will provide the necessary infrastructure for the 11 new single-family residential lots. Findings of Fact 9,11,12,14,15. 3. The proposed preliminary plat complies with the City of Bremerton's Comprehensive Plan. The smaller lot sizes will provide more affordable housing for the City of Bremerton. The proposed project reduces sprawl by locating new residential development where public services are already available. The proposed development will be a safe and attractive community, close to parks and schools. Findings of Fact 1, 2, 3, 4, 16. Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 6 of 9 RECOMMENDA TION Upon consideration of the Findings and Conclusions, the Hearing Examiner recommends APPROVAL of the request for the Preliminary Plat to divide a 1.39 acre parcel located at the northeast intersection of Rickey Road and Sylvan Way in Bremerton, Washington into 11 building lots and three tracts for roads and a storm water retention facility, subject to the following conditions: 1. The access easement located adjacent to the west property line shall be developed to the City's Local Access Two Way street standards. The property owner shall be responsible for improvements that meet the City's standards per the letter from City of Bremerton Public Works dated January 28,2005. Improvements shall be installed orbonded for prior to final plat approval. 2. A 20 foot wide dedication of public right of way is required per the submitted site plan received by the City of Bremerton November 9, 2004. The dedication shall be included on the face of the final plat and the City Engineer must approve the language for the dedication. 3. Road Tracts A & B shall be developed to the City's Shared Dirveway Access street standards. Improvements shall be installed or bonded for prior to final plat approval. 4. The final plat shall contain language regarding shared ownership and maintenance responsibilities for Private Road Tracts A & B. 5. The final plat shall contain language that no on-street parking shall be allowed on Road Tracts A & B. 6. Frontage improvements, including sidewalks, associated storm drainage and conduit runs for future street lighting, are required to be installed or bonded for prior to final plat approval. All improvements shall meet City Engineering standards set forth in BMC Title 15. 7. The Public Works conditions set forth in the Water and Sewer Availability letter dated January 22,2004 shall be included as conditions for approving the final plat. The water main extension shall be installed or bonded for prior to final plat approval. 8. A final storm drainage and grading plan shall be submitted to the Public Works Department that meets the City Engineer's approval. All storm drainage systems shall be installed or bonded for prior to final plat approval. Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 70f9 9. Street ideJ;ltificatiori signs are required per the City Engineering Standards 3251 through 3300. The street signs shall be installed or bonded for prior to final plat approval. 10. A fire hydrant meeting City standards is required. The fire hydrant shall be installed or bonded for prior to final plat approval. If the fire hydrant is bonded for, the hydrant must be installed and operational prior to any construction above building foundations. 11. The storm drainage facilities located on Tract C shall be landscaped according to BMC ~21.02.700(a)(1). A landscaping plan that is acceptable to the City must be submitted prior to final plat approval. The landscaping shall be installed or bonded for prior to final plat approval. 12. The final plat shall contain language regarding shared ownership and maintenance responsibilities for the storm drainage facilities and the associated landscaping. 13. Addresses for the individual lots shall be obtained from the Public Works Department and shall be indicated on the final plat. 14. A survey of the proposed final subdivision and preparation of the plat shall be made by or under the supervision of a Washington State registered land surveyor who shall certify on the plat that it is a true and correct representation of the lands actually surveyed. Two copies of the lot closures shall be submitted with the application for final approval of the plat. 15. For the right of way dedication: a waiver of all claims for damages against any government authority, which may be occasioned to the adjacent land by the established construction, drainage, and maintenance of said road shall be included on the final plat. 16. A final plat meeting applicable development standards and conditions shall be submitted to the Department of Community Development for approval within five years of the date of preliminary plat approval. 17. Two copies of the plat certificate shall be submitted with the application of final approval of the plat. 18. Six copies of the plat (not mylar) shall be submitted to the Department of Community Development for final compliance review. 19. The subdivision shall be vested for five years following final plat approval in the allowed uses and development standards for Low-Density Residential (DR) zoning, which were in effect November 9,2004. Findings, Conclusions, and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 80f9 20. A copy of the recorded plat shall be provided to the Department of Community Development after it is recorded with the Kitsap County Auditor before building permits will be issued. Recommended this \.\~day of March 2004. r\A~~c R.l) \.\~~, Theodore Paul Hunter Hearing Examiner of the City of Bremerton , . Findings. Conclusions. and Recommendation Hearing Examiner for City of Bremerton Mark Sweeny/Sylvan Preliminary Subdivision, No BP04-00412 Page 9 019 DATE SUBMITTED: BILL # os~ tJBr AGENDA BILL CITY OF BREMERTON 7 A CITY COUNCIL ........................................................................................ SUBJECT: CDBG "off cycle" funding Committee Meeting Date: 03/23/05 request for the Kitsap County Community COUNCIL MEETING Date: 04/06/05 Development Corporation (KeCDC) Small Department: DCD Business Revolving Loan Program Presenter: Michelle Eichhorn Phone: (360) 473-5375 SUMMARY: The KCCDC requests $20,000 of CDBG ~ds (Program Income) for program administration costs and seed money for their revolving loan fund. ATTACHMENTS: Memorandum from CDBG staff, summary letter from KCCDC staff, corporation flowchart. FISCAL IMPACTS (Include Budgeted Amount): Requested funds are available from CDBG Revolving Loan Fund (program Income); otherwise no impact. APPROVALS: DEPARTMENT DIRECTOR: t:t1 4,k//l' etrvt:5 fY CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: \. FISCAUBUDGET: .~~~ CONSENT AGENDA D OPERATIONS: (;r!at~ 'fl1..~' ]./ COUNCIL PRESIDENT: ~ ~ ~~ RECOMMENDED MOTION: Move to approve atarding $20,000 ofCDBG 2005 funds to Kitsap County Community Development Corporatio~ ~ \("e.v..v- ~C)O ~- OVl ly\ COUNCIL ACTION: 0 Approve 0 Deny 0 Table 0 Continue 0 No Action I I I I I I DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM To: Bremerton City Cmlllcil From: Michelle Eichhorn Date: March 16, 2005 RE: Kitsap County Community Development Corporation (KCCDC) request for $20,000 of "off cycle" Community Development Block Grant funds. The KCCDC has submitted an application for $20,000 of CDBG "off cycle" funds. Their application indicates that they intend to use funds for program administration costs and seed money for their revolving loan fund. Background On April 17th 2002, the City Council approved $60,000 of "off cycle" funding for the development of the Kitsap County Community Development Corporation (KCCDC). The KCCDC has since hired a full time loan officer, Jean Charneski, who has managed the project for the last year. The project has achieved all of the goals outlined in its 2003 CDBG Contract. The KCCDC applied for 2005 CDBG and was not recommended for funding. The agency then requested consideration for CDBG "off cycle" funding. CDBG "Off Cycle" Funding Process The application has been: 1. recommended for approval by the Mayor; 2. reviewed by the CDBG Advisory Committee (Capital and Economic Development) and recommended for approval; 3. technically reviewed by City Staff and an analysis of the AdvantageslDisadvantages of providing or not providing funding is attached; Recommendation The application has satisfied all of the technical and eligibility requirements for the CDBG program. We therefore recommend the application for approval. Please contact Michelle Eichhorn at 473-5375 if you have any questions regarding this application. 1 I City of Bremerton CDBG staff analysis of the AdvantageslDisadvantages of providing or not providing funding to the Kitsap County Community Development Corporation. Providing or not providing funding will allow or not allow the agency to: . pay for anticipated operating expenses throughout the next year. ($10,000 is needed to meet the budgeted expenses for operating costs); . cover the basic operation costs until the 2005 allocated CDBG funds from Kitsap County arrive in late spring; . sustain the current salary level of the program director and continue to provide a similar level of service to the public as in the recent past; . continue to grow its revolving loan fund and gain more visibility and support in the community. I I I --'--- . .. Kitsap . County Community Development Corporation (KCCDe) Purpose: . Local mechanism to provide gap financing for small business retention, start-up or expansion in Bremerton and Kitsap County. . Consultation and referrals to other services for small businesses . Process: . Applications by small business owners . Loan Officer does credit underwriting . Loan Review Committee reviews and either approves or declines . LaserPro loan documents used for loan closing . Follow up continues for the duration of the loan Goals: . Economic Development aided with four loans in Kitsap County, each creating a low-income job within a two-year period and with technical assistance to 40 individuals . Capital leveraged with bank funds in loans and by obtaining $18,500 in grants from five banks . Marketing KCCDC throughout the community has led to a steady flow of referrals from banks for technical assistance. This Request: . $18,000 for personnel, supplies and administrative expenses with the remainder for the Revolving Loan Fund. Other Requests: . USDA grant application for $50,000 . New requests to the five national banks that contributed in 2004 . Initial requests to community banks within Kitsap County that will be more personal with meetings with senior management. . Fund drive to small businesses and individuals in Kitsap County - The Board is still developing the best approach to use after studying techniques used by Cascadia Revolving Fund and Washington CASH. SMALL BUSINESS REVOLVING LOAN FUND DEVELOPMENT -.-,--,,-- . ""'''',"''M~''__~~'':=1 '.. V-......."T...~~, .d_KRCC_~~ , ~ 'f~, I Kitsap Regional Coordinating Council L- . -Appoints CDC Board l' ~ A.. _ WI J. ll; 1R'11' """ Vil1P~ ...-.q~..~ , -... "" -;.\ - CITY OF :~ ii ~ KITSAP ~; -. BREMERTON .~ COUNTY .~ ;<: .ct , ~,llf<r;':';"*,:;"~';'~"'~~'~;>'6/..~~~,;,~k~! '. 1 ~~~z~.:v. ~.,~JJ,~~kW;:': Initiate Corporate Development _iIlllll.'l~.l. y ,ilf_"fill~"lIli COMMUNITY DEVELOPMENT CORPORATION ~1(Ioq CDC ~ , I.; . CDC . - ' tL.l9 BOARD MAKEUP y Continue Page 2 "'/ DATE SUBMITTED: March 21, 2005 BILL # 05~()10 AGENDA BILL CITY OF BREMERTON {,3 CITY COUNCIL ........................................................................................ SUBJECT: Local Agency Standard Committee Meeting Date: March 30, 2005 Consultant Agreement for the Downtown COUNCIL MEETING Date: April 6, 2005 >o.;{ Pedestrian/BTC Access Improvement Project Department: Public Works & Utilities ~1il~,~ Presenter: Phil Williams ,,\,\v.\W,\\,(ill} Phone: 473-5315 SUMMARY: The City requires project coordination assistance for the Downtown PedestrianlBTC Access Improvement Project. Retaining the services ofW. Eugene Sampley dba Sampley Consulting will provide the expertise necessary to maintain project continuity, scope and schedule. A Local Agency Standard Consultant Agreement for federally funded projects has been negotiated with Sampley Consulting for the Downtown Pedestrian/BTC Access Improvement Project for a total authorized amount not to exceed $120,000. ATTACHMENTS: 1) Council Summary; 2) Local Agency Standard Consultant Agreement with Sampley Consulting for the Downtown PedestrianlBTC Access Project FISCAL IMPACTS (Include Budgeted Amount): These services are reimbursable from federal funds provided in the capital project budget. No local match is required for this contract. APPROVALS: J:f4~ /J! &UI-~~ PiU I vJ: 1\~'Q\01~ DEP ARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: FISCAL/BUDGET: .~);;J~ CONSENT AGENDA 0 OPERA nONS: ~ COUNCIL PRESIDENT: y~~ RECOMMENDED MOTION: Move to approve the Local Agency Standard Consultant Agreement with Sampley Consulting for the Downtown Pedestrian/BTC Access Improvement Project in the amount not to exceed $120,000 and authorize the Mayor to finalize and execute the necessary contract documents for the agreement. COUNCIL ACTION: 0 Approve o Deny o Table o Continue o No Action ab/ Agenda Bills 2005/Sampley Consulting Agrmt Local Agency Consultant Agreement Sampley Consulting Council Summary The City retained the services ofW. Eugene Sampley dba Sampley Consulting on April 1,2004 to provide project coordination assistance for the Downtown Bremerton PedestrianlBTC Access Improvement Project. The current contract with Sampley Consulting has reached its maximum amount payable. A project coordinator position continues to be needed to monitor and coordinate the performance of project participants. WSDOT recommends that a project coordinator position be retained by the City to represent and protect the interests ofthe City. Resource projections were performed and it was determined that there were no available in-house personnel available to perform these tasks. In conformance with City and State requirements, consultant services were solicited for this position. A request for qualifications for a project coordinator position was advertised in February 2005. Sampley Consulting was the only applicant for the position. A budget of$120,000 has been identified for Sampley Consulting to provide the services identified in the scope of work. This work includes continuing coordination of the environmental and design services of the consultant Exeltech with City and WSDOT staff through the design stage ofthe project. It is anticipated that the design stage ofthe project will not be completed until June of 2006. The contract completion date of December 31, 2006 was set to cover potential delays in completion ofthe design stage. Funding for these services are 100% reimbursable from federal funds provided in the capital project budget. Consultant! AddressfT elephone Local Agency Sampley Consulting Standard Consultant 7407 Roundup Lane NW Agreement Si1verda1e, W A 98383 -- Agreement Number -------- Federal Aid Number Project Title And Work Description HP-1998(029) Downtown Bremerton PedestrianIBTC Agreement Type (Choose one) Access Improvement o Lump Sum Lump Sum Amount $ D Cost Plus Fixed Fee Overhead Progress Payment Rate % DBE Participation Overhead Cost Method DYes ~No % D Actual Cost WBE Participation D Actual Cost Not To Exceed % DYes ~ No % D Fixed Rate FederallD Number or Social Security Number % --- Fixed Fee $ Do you require a 1099 for IRS? Completion Date DYes 181 No December 31, 2005 181 Specific Rates Of Pay ~ Negotiated Hourly Rate Total Amount Authorized $ 120,000.00 D Provisional Hourly Rate Management Reserve Fund $ o Cost Per Unit of Work Maximum Amount Payable $ 120,000.00 THIS AGREEMENT, made and entered into this 7 day of April , 2005 , between the Local Agency of City of Bremerton , Washington, hereinafter called the "AGENCY" , and the above organization hereinafter called the "CONSULTANT". WITNESSETH THAT: WHEREAS, the AGENCY desires to accomplish the above referenced project, and WHEREAS, the AGENCY does not have sufficient staff to meet the required commitment and therefore deems it advisable and desirable to engage the assistance of a CONSUL T ANT to provide the necessary services for the PROJECT; and WHEREAS, the CONSULTANT represents that he/she is in compliance with the Washington State Statutes relating to professional registration, if applicable, and has signified a willingness to furnish Consulting services to the AGENCY, NOW THEREFORE, in consideration of the terms, conditions, covenants and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows: DOT Form 140-089 EF Page 1 of 8 Revised 12/99 I All reports, PS&E materials, and other data, furnished GENERAL DESCRIPTION OF WORK to the CONSULTANT by the AGENCY shall be returned. All designs, drawings, specifications, The work under this AGREEMENT shall consist of documents, and other work products prepared by the the above described work and services as herein CONSULTANT prior to completion or termination of defined and necessary to accomplish the completed this AGREEMENT are instruments of service for this work for this PROJECT. The CONSULTANT shall PROJECT and are property of the AGENCY. Reuse furnish all services, labor and related equipment by the AGENCY or by others acting through or on necessary to conduct and complete the work as behalf of the AGENCY of any such instruments of designated elsewhere in this AGREEMENT, service, not occurring as a part of this PROJECT, shall be without liability or legal exposure to the II CONSULTANT. SCOPE OF WORK IV The Scope of Work and project level of effort for this TIME FOR BEGINNING AND COMPLETION project is detailed in Exhibit "B" attached hereto, and The CONSULTANT shall not begin any work under by this reference made a part of this AGREEMENT. the terms of this AGREEMENT until authorized in III writing by the AGENCY. All work under this GENERAL REQUIREMENTS AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT under All aspects of coordination of the work of this completion date. AGREEMENT, with outside agencies, groups or individuals shall receive advance approval by the The established completion time shall not be extended AGENCY. Necessary contacts and meetings with because of any delays attributable to the CONSUL T- agencies, groups or individuals shall be coordinated ANT, but may be extended by the AGENCY, in the through the AGENCY. event of a delay attributable to the AGENCY, or because of unavoidable delays caused by an act of The CONSULTANT shall attend coordination, GOD or governmental actions or other conditions progress and presentation meetings with the beyond the control of the CONSULTANT. A prior AGENCY or such Federal, Community, State, City supplemental agreement issued by the AGENCY is or County officials, groups or individuals as may be required to extend the established completion time. requested by the AGENCY. The AGENCY will provide the CONSULTANT sufficient notice prior V to meetings requiring CONSULTANT participation. PAYMENT The minimum number of hours or days notice - The CONSULTANT shall be paid by the AGENCY required shall be agreed to between the AGENCY for completed work and services rendered under this and the CONSULTANT and shown in Exhibit "B" attached hereto and made part of this AGREEMENT. AGREEMENT as provided in Exhibit "C" attached hereto, and by this reference made part of this The CONSULTANT shall prepare a monthly AGREEMENT. Such payment shall be full compen- progress report, in a form approved by the AGENCY, sation for work performed or services rendered and that will outline in written and graphical form the for all labor, materials, supplies, equipment, and various phases and the order of performance of the incidentals necessary to complete the work work in sufficient detail so that the progress of the specified in Section II, "Scope of Work". The work can easily be evaluated. Goals for Disadvan- CONSULTANT shall conform with all applicable taged Business Enterprises (DBE) and Women portions of 48 CFR 31. Owned Business Enterprises (WBE) if required shall be shown in the heading of this AGREEMENT. Page 2 of 8 - VI employees of the CONSULTANT only and not of the SUBCONTRACTING AGENCY, and any and all claims that mayor might arise under any Workmen's compensation Act on The AGENCY permits subcontracts for those items behalf of said employees or other persons while so of work as shown in Exhibit G to this Agreement. engaged, and any and all claims made by a third party Compensation for this subconsultant work shall be as a consequence of any act or omission on the part of based on the cost factors shown on Exhibit G, at- the CONSULTANT's employees or other persons tached hereto and by this reference made a part of this while so engaged on any of the work or services AGREEMENT. provided to be rendered herein, shall be the sole The work of the subconsultant shall not exceed its obligation and responsibility of the CONSULTANT. maximum amount payable unless a prior written The CONSULTANT shall not engage, on a full or approval has been issued by the AGENCY. part time basis, or other basis, during the period of the All reimbursable direct labor, overhead, direct non- contract, any professional or technical personnel who salary costs and fixed fee costs for the subconsultant are, or have been, at any time during the period of the shall be substantiated in the same manner as outlined contract, in the employ of the United States Depart- in Section V. All subcontracts exceeding $10,000 in ment of Transportation, the STATE, or the cost shall contain all applicable provisions of this AGENCY, except regularly retired employees, AGREEMENT. without written consent of the public employer of such person. The CONSULTANT shall not subcontract for the . performance of any work under this AGREEMENT VIII without prior written permission of the AGENCY. No NONDISCRIMINATION permission for subcontracting shall create, between The CONSULTANT agrees not to discriminate the AGENCY and subcontractor, any contract or any against any client, employee or applicant for employ- other relationship. ment or for services because of race, creed, color, VII national origin, marital status, sex, age or handicap EMPLOYMENT except for a bona fide occupational qualification with regard to, but not limited to the following: employ- The CONSULTANT warrants that he/she has not ment upgrading, demotion or transfer, recruitment or employed or retained any company or person, other any recruitment advertising, a layoff or terminations, than a bona fide employee working solely for the rates of payor other forms of compensation, selection CONSULTANT, to solicit or secure this contract, and for training, rendition of services. The CONSUL T- that it has not paid or agreed to pay any company or ANT understands and agrees that if it violates this person, other than a bona fide employee working provision, this AGREEMENT may be terminated by solely for the CONSULTANT, any fee, commission, the AGENCY and further that the CONSULTANT percentage, brokerage fee, gift, or any other consider- shall be barred from performing any services for the ation, contingent upon or resulting from the award or AGENCY now or in the future unless a showing is making of this contract. For breach or violation of this made satisfactory to the AGENCY that discrimina- warrant, the AGENCY shall have the right to annul tory practices have terminated and that recurrence of this AGREEMENT without liability, or in its discre- such action is unlikely. tion, to deduct from the AGREEMENT price or During the performance of this AGREEMENT, the consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, CONSULTANT, for itself, its assignees and or contingent fee. successors in interest agrees as follows: Any and all employees of the CONSULTANT or A. COMPLIANCE WITH REGULATIONS: The other persons while engaged in the performance of CONSULTANT shall comply with the Regula- any work or services required of the CONSULTANT tions relative to nondiscrimination in the same manner as in Federal-assisted programs of the under this AGREEMENT, shall be considered Page 3 of 8 Department of Transportation, Title 49, Code of sive possession of another who fails or refuses to Federal Regulations, Part 21, as they may be furnish this information the CONSUL T ANT shall amended from time to time, (hereinafter referred so certify to the AGENCY, or the United States to as the Regulations), which are herein incorpo- Department of Transportation as appropriate, and rated by reference and made a part of this shall set forth what efforts it has made to obtain AGREEMENT. The consultant shall comply the information. with the American Disabilities Act of 1992, as E. SANCTIONS FOR NONCOMPLIANCE: In the amended. event of the CONSULTANT's noncompliance B. NONDISCRIMINATION: The CONSULTANT, with the nondiscrimination provisions of this with regard to the work performed by it during the AGREEMENT, the AGENCY shall impose . AGREEMENT, shall not discriminate on the such sanctions as it or the Federal Highway grounds of race, creed, color, sex, age, marital Administration may determine to be appropriate, status, national origin or handicap except for a including, but not limited to: bona fide occupational qualification in the selec- 1. Withholding of payments to the CONSUL T~ tion and retention of subconsultants, including ANT under the AGREEMENT until the procurements of materials and leases of equip- CONSUL T ANT complies, and/or ment. The CONSULTANT shall not participate either directly or indirectly in the discrimination 2. Cancellation, termination or suspension of the prohibited by Section 21.5 of the Regulations, AGREEMENT, in whole or in part. including employment practices when the contract F. INCORPORATION OF PROVISIONS: The covers a program set forth in Appendix II of the CONSULTANT shall include the provisions of Regulations. paragraphs (A) through (G) in every subcontract, C. SOLICITATIONS FOR SUBCONSULTANTS, including procurements of materials and leases of INCLUDING PROCUREMENTS OF MATERI- equipment, unless exempt by the Regulations or ALS AND EQUIPMENT: In all solicitations directives issued pursuant thereto. The CON- either by competitive bidding or negotiation made SUL T ANT shall take such action with respect to by the CONSULTANT for work to be performed any subconsultant or procurement as the under a subcontract, including procurements of AGENCY or the Federal Highway Administra- materials or leases of equipment, each potential tion may direct as a means of enforcing such subconsultant or supplier shall be notified by the provisions including sanctions for noncompli- CONSULTANT of the CONSULTANT's ance; provided, however, that, in the event a obligations under this AGREEMENT and the CONSULTANT becomes involved in, or is Regulations relative to nondiscrimination on the threatened with, litigation with a subconsultant or grounds of race, creed, color, sex, age, marital supplier as a result of such direction, the CON- status, national origin and handicap. UL T ANT may request the AGENCY to enter D. INFORMATION AND REPORTS: The into such litigation to protect the interests of the CONSULTANT shall provide all information AGENCY, and in addition, the CONSULTANT may request the United States to enter into such and reports required by the Regulations, or litigation to protect the interests of the United directives issued pursuant thereto, and shall States. permit access to its books, records, accounts, other sources of information, and its facilities as G. UNFAIR EMPLOYMENT PRACTICES: The may be determined by the AGENCY to be CONSULTANT shall comply with RCW pertinent to ascertain compliance with such 49.60.180. Regulations or directives. Where any information required of the CONSULTANT is in the exclu- Page 4 of 8 IX In the event of the death of any member, partner or TERMINATION OF AGREEMENT officer of the CONSULTANT or any of its supervi- The right is reserved by the AGENCY tp terminate sory personnel assigned to the project, or, dissolution of the partnership, termination of the corporation, or this AGREEMENT at any time upon ten days written notice to the CONSULTANT. disaffiliation of the principally involved employee, the surviving members of the CONSULTANT hereby In the event this AGREEMENT is terminated by the agree to complete the work under the terms of this AGENCY other than for default on the part of the AGREEMENT, if requested to do so by the CONSULTANT, a final payment shall be made to the AGENCY. The subsection shall not be a bar to CONSUL T ANT as shown in Exhibit F for the type of renegotiation of the AGREEMENT between the AGREEMENT used. surviving members of the CONSULTANT and the No payment shall be made for any work completed AGENCY, if the AGENCY so chooses. after ten days following receipt by the CONSUL T- In the event of the death of any of the parties listed in ANT of the Notice to terminate. If the accumulated the previous paragraph, should the surviving members payment made to the CONSULTANT prior to Notice of the CONSULTANT, with the AGENCY's concur- of Termination exceeds the total amount that would renee, desire to terminate this AGREEMENT, be due computed as set forth herein above, then no payment shall be made as set forth in the second final payment shall be due and the CONSULTANT paragraph of this section. shall immediately reimburse the AGENCY for any Payment for any part of the work by the AGENCY excess paid. shall not constitute a waiver by the AGENCY of any If the services of the CONSULTANT are terminated remedies of any type it may have against the CON- by the AGENCY for default on the part of the CON- SUL TANT for any breach of this AGREEMENT by SUL T ANT, the above formula for payment shall not the CONSULTANT, or for failure of the CONSUL T- apply. In such an event, the amount to be paid shall be ANT to perform work required of it by the determined by the AGENCY with consideration AGENCY. Forbearance of any rights under the given to the actual costs incurred by the CONSUL T- AGREEMENT will not constitute waiver of entitle- ANT in performing the work to the date of ment to exercise those rights with respect to any termination, the amount of work originally required future act or omission by the CONSULTANT. which was satisfactorily completed to date of termina- X tion, whether that work is in a form or a type which is CHANGES OF WORK usable to the AGENCY at the time of termination; the cost to the AGENCY of employing another firm The CONSULTANT shall make such changes and to complete the work required and the time which revisions in the complete work of this AGREEMENT maybe required to do so, and other factors which as necessary to correct errors appearing therein, when affect the value to the AGENCY of the work per- required to do so by the AGENCY, without additional formed at the time of termination. Under no compensation thereof. Should the AGENCY find it circumstances shall payment made under this subsec- desirable for its own purposes to have previously tion exceed the amount which would have been made satisfactorily completed work or parts thereof using the formula set forth in the previous paragraph. changed or revised, the CONSULTANT shall make If it is determined for any reason that the CONSUL T- such revisions as directed by the AGENCY. This ANT was not in default or that the CONSULTANT's work shall be considered as Extra Work and will be failure to perform is without it or it's employee's fault paid for as herein provided under Section XIV. or negligence, the termination shall be deemed to be a termination for the convenience of the AGENCY in accordance with the provision of this AGREEMENT. Page 5 of 8 XI that nothing herein shall require a CONSULTANT to DISPUTES indemnify the AGENCY and the STATE against and hold harmless the AGENCY and the STATE from Any dispute concerning questions of fact in connec- claims, demands or suits based solely upon the tion with the work not disposed of by AGREEMENT conduct of the AGENCY and the STATE, their between the CONSULTANT and the AGENCY shall agents, officers and employees and provided further be referred for determination to the Director of Public that if the claims or suits are caused by or result from Works or AGENCY Engineer, whose decision in the the concurrent negligence of (a) the matter shall be final and binding on the parties of this CONSULTANT's agents or employees and (b) the AGREEMENT, provided however, that if an action is AGENCY and the STATE, their agents, officers and brought challenging the Director of Public Works or employees, this indemnity provision with respect to AGENCY Engineer's decision, that decision shall be (1) claims or suits based upon such negligence, (2) the subject to de novo judicial review. costs to the AGENCY and the STATE of defending XII such claims and suits, etc. shall be valid and enforce- VENUE, APPLICABLE LAW AND able only to the extent of the CONSULTANT's PERSONAL JURISDICTION negligence or the negligence of the CONSULTANT's agents or employees. In the event that either party deems it necessary to The CONSULTANT's relation to the AGENCY shall institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the be at all times .as an independent contractor. parties hereto agree that any such action shall be The CONSULTANT specifically assumes potential initiated in the Superior court of the State of Washing- liability for actions brought by the CONSULTANT's ton, situated in the county the AGENCY is located in. own employees against the AGENCY and, solely for The parties hereto agree that all questions shall. be the purpose of this indemnification and defense, the resolved by application of Washington law and that CONSULTANT specifically waives any immunity the parties to such action shall have the right of appeal under the state industrial insurance law, Title 51 from such decisions of the Superior court in accor- RCW. The CONSULTANT recognizes that this dance with the laws of the State of Washington. The waiver was specifically entered into pursuant to the CONSULTANT hereby consents to the personal provisions of RCW 4.24.115 and was the subject of jurisdiction of the Superior court of the State of mutual negotiation. Washington, situated in the county in which the Unless otherwise specified in the AGREEMENT, the AGENCY is located in. AGENCY shall be responsible for administration of XIII construction contracts, if any, on the project. Subject LEGAL RELATIONS AND INSURANCE to the processing of an acceptable, supplemental The CONSULTANT shall comply with all Federal, agreement, the CONSULTANT shall provide on-call assistance to the AGENCY during contract adminis- State, and local laws and ordinances applicable to the tration. By providing such assistance, the work to be done under this AGREEMENT. This CONSULTANT shall assume no responsibility for: AGREEMENT shall be interpreted and construed in proper construction techniques, job site safety, or any accord with the laws of Washington. construction contractor's failure to perform its work The CONSULTANT shall indemnify and hold the in accordance with the contract documents. AGENCY and the STATE, and their officers and The CONSULTANT shall obtain and keep in force employees harmless from and shall process and during the terms of the AGREEMENT, or as other- defend at its own expense all claims, demands, or wise required, the following insurance with suits at law or equity arising in whole or in part from companies or through sources approved by the State the CONSULTANT's negligence or breach of any of Insurance Commissioner pursuant to RCW 48. its obligations under this AGREEMENT; provided Page 6 of 8 XIV Insurance Coverage. EXTRA WORK , A. Worker's compensation and employer's liability A. The AGENCY may at any time, by written order, insurance as required by the STATE. make changes within the general scope of the AGREEMENT in the services to be performed. B. 081,81 c!ll (,Olllll,ercialliability if\3l:Jffifloe ifl on B. If any such change causes an increase or decrease ~II,OUllt "ot less tl,an a single limit of one million in the estimated cost of, or the time required for, cHid 00/100 Dollars ($1,000,000.00) for bodily performance of any part of the work under this injul), including dealt, BAd pfOperty damage AGREEMENT, whether or not changed by the pcr ooourrenee, order, or otherwise affects any other terms and Excepting the Worker's Compensation insurance and conditions of the AGREEMENT, the AGENCY any professional liability insurance secured by the shall make an equitable adjustment in the CONSULTANT, the AGENCY will be named on all (1) maximum amount payable; (2) delivery or certificates of insurance as an additional insured. The completion schedule, or both; and (3) other CONSULTANT shall furnish the AGENCY with affected terms and shall modify the AGREE- verification of insurance and endorsements required MENT accordingly. by this AGREEMENT. The AGENCY reserves the C. The CONSULTANT must submit its "request right to require complete, certified copies of all for equitable adjustment" (hereafter referred to required insurance policies at any time. as claim) under this clause within 30 days from All insurance shall be obtained from an insurance the date of receipt of the written order. However, company authorized to do business in the State of if the AGENCY decides that the facts justify it, Washington. The CONSULTANT shall submit a the AGENCY may receive and act upon a claim verification of insurance as outlined above within submitted before final payment of the 14 days of the execution of this AGREEMENT to AGREEMENT. the AGENCY. D. Failure to agree to any adjustment shall be a No cancellation of the foregoing policies shall be dispute under the Disputes clause. However effective without thirty (30) days prior notice to nothing in this clause shall excuse the CON- the AGENCY. SUL T ANT from proceeding with the The CONSULTANT's professional liability to the AGREEMENT as changed. AGENCY shall be limited to the amount payable E. Notwithstanding the terms and condition of under this AGREEMENT or one million dollars, paragraphs (a) and (b) above, the maximum whichever is the greater unless modified by amount payable for this AGREEMENT, shall Exhibit H. In no case shall the CONSULTANT's not be increased or considered to be increased professional liability to third parties be limited in except by specific written supplement to this any way. AGREEMENT. The AGENCY will pay no progress payments XV under Section V until the CONSULTANT has fully ENDORSEMENT OF PLANS complied with this section. This remedy is not exclu- The CONSULTANT shall place his endorsement on sive; and the AGENCY and the STATE may take such other action as is available to them under other all plans, estimates or any other engineering data provisions of this AGREEMENT, or otherwise in law. furnished by him. Page 7 of 8 XVI XVIII FEDERAL AND STATE REVIEW COMPLETE AGREEMENT The Federal Highway Administration and the This document and referenced attachments contains Washington State Department of Transportation all covenants, stipulations and provisions agreed upon shall have the right to participate in the review or by the parties. No agent, or representative of either examination of the work in progress. party has authority to make, and the parties shall not be bound by or be liable for, any statement, represen- XVII tation, promise or agreement not set forth herein. No CERTIFICATION OF THE CONSULTANT changes, amendments, or modifications of the terms AND THE AGENCY hereof shall be valid unless reduced to writing and Attached hereto as Exhibit "A-1", are the signed by the parties as an amendment to this Certifications of the Consultant and the Agency, AGREEMENT. Exhibit "A-2" Certification regarding debarment, XIX suspension and other responsibility matters - primary EXECUTION AND ACCEPTANCE covered transactions, Exhibit "A-3" Certification regarding the restrictions of the use of Federal. funds This AGREEMENT may be simultaneously executed for lobbying, and Exhibit "A-4" Certificate of Current in several counterparts, each of which shall be Cost or Pricing Data. Exhibits "A-3" and "A-4" are deemed to be an original having identical legal effect. only required in Agreements over $100,000. The CONSULTANT does hereby ratify and adopt all statements, representations, warranties, covenants, and agreements contained in the proposal, and the supporting materials submitted by the CONSUL T- ANT, and does hereby accept the AGREEMENT and agrees to all of the terms and conditions thereof. In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year first above written. By By ------- Consultant W. Eugene Sampley Agency Cary Bozeman, Mayor __n_____ Page 8 of 8 Exhibit A-1 Certification Of Consultant Project No. Local Agency I hereby certifY that I am W. Eugene Sampley and duly authorized representative of the firm of Sampley Consulting whose address is 7407 Roundup Lane NW, Silverdale, W A 98383 and that neither I nor the above firm I here represent has: (a) Employed or retained for a commission, percentage, brokerage, contingent fee or other consideration, any firm or person (other than a bona fide employee working solely for me or the above CONSULTANT) to solicit or secure this contract. (b) Agreed, as an express or implied condition for obtaining this contract, to employ or to retain the services of any firm or person in connection with carrying out the contract. (c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above CONSULTANT) any fee, contribution donation or consideration of any kind for, or in connection with procuring or carrying out the contract; except as here expressly stated (if any): I further certify that the firm I hereby represent is authorized to do business in the State of Washington and that the firm is in full compliance with the requirements of the board of Professional Registration. I acknowledge that this certificate is to be available to the State Department of Transportation and the Federal Highway Administration, U.S. Department of Transportation, in connection with this contract involving participation of Federal aid funds and is subject to applicable State and Federal laws, both criminal and civil. 4/7/2005 Date Signature Certification of Agency Official I hereby certify that I am the AGENCY Official of the Local Agency of City of Bremerton Washington and that the above consulting firm or their representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this contract to: (a) Employ or retain, or agree to employ or retain, any firm or person, or (b) Payor agree to pay to any firm, person or organization, any fee, contribution, donation or consideration of any kind, except as here expressly stated (if any). I acknowledged that this certificate is to be available to the Federal Highway Administration, U.S. Department of Transportation, in connection with this contract involving participation of Federal aid highway funds and it subject to applicable State and Federal laws, both criminal and civil. -------------------- Dale --00- ------- --- ---p----------- - _n__ - --- -Signalure--------------'----- ---------- Exhibit A-2 Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions 1. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction; violation of federal or state antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph l.b. of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (federal, state, or local) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Consultant (Firm): Sampley Consulting 4/7/2005 (Date) (Signature) President or Authorized Official of Consultant Exhibit A-3 Certification Regarding The Restrictions of The use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influenc.e an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission ofthis certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly. Consultant (Firm): Sampley Consulting 4/7/2005 (Date) (Signature) President or Authorized Official of Consultant Exhibit A-4 Certificate of Current Cost or Pricing Data This is to verify that, to the best of my knowledge and belief, the cost or pricing data (as defined in section 15.401 of the Federal Acquisition Regulation (FAR) and required under FAR subsection 15.403-4) submitted, either actually or by specific identification in writing, to the contracting officer or to the contracting officer's representative in support of Downtown Pedestrian/BTC Access Imp. * are accurate, complete, and current as of April 7, 2005 **. This certification includes the cost or pricing data supporting any advance agreements and forward pricing rate agreements between the offeror and the Government that are part of the proposal. Firm Sampley Consulting Name W. Eugene Sampley Title Owner Date of Execution*** April 7, 2005 * Identify the proposal, quotation, request for price adjustment, or other submission involved, giving the appropriate identifying. number (e.g., RFP No.). ** Insert the day, month, and year when price negotiations were concluded and price agreement was reached. *** Insert the day, month, and year of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to. Exhibit B-1 Scope of Work Project No. The Consultant shall perfollTI project coordination services necessary to closely monitor and coordinate the perfonnance ofthe project participants, including the City's Consultant for project environment~ and engineering services (Design Consultant) and City staff in their respective roles in the prosecution of work Consultant shall provide thorough coordination sufficient to ensure the overall success of the project; however, Consultant shall not have authority or responsihility for directing the actual perfonnance of any work The first sentence of Section TIT shall only apply to coordination activities specifically identified in writing hy the Director ofPuhlic Works and I Jtilities Consultant shall participate in project meetings including, hut not limited to monthly Project Oversight Committee meetings, weekly project team meetings of the Design Consultant, weekly City project coordination meetings, and project meetings related to the puhlic envolvement process Consultant shall also provide hriefings or assist in hriefings to City and other local government councils and commissions . Documents To Be Furnished By The Consultant The Consultant shall suhmit monthly progress reports on Consultant's Activities ----- -------------------.. ---------.. -- -~-_._----~-~--_.__._--------~----~----- --_.._-~--------------------.~~----- -~--_..._--_._-~ ----.- - -------- .--.------- ------_._~. - - --_."- --- --'--~_.__._.. -------- ----- -----..--- ..--...------ ------,---_._-~---- Exhibit C-3 Payment (Negotiated Hourly Rate) The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for work performed or services rendered and for.alllabor, materials, supplies, equipment, and incidentals necessary to complete the work. The CONSULTANT shall conform with all applicable portions of 48 CFR 31. 1. Hourly Rates The CONSULTANT shall be paid by the AGENCY for work done, based upon the negotiated hourly rates shown in ExhibitsD and E attached hereto and by this reference made part of this AGREEMENT. The rates listed shall be applicable for the first 12-month period and shall be subject to negotiation for the following 12-month period upon request of the CONSULTANT or the AGENCY. Ifnegotiations are not conducted for the second or subsequent 12-month periods within 90 days after completion of the previous period, the rates listed in this AGREEMENT or subsequent written authorization(s) from the AGENCY shall be utilized for the life of the AGREEMENT. The rates are inclusive of direct salaries, payroll additives, overhead, and fee. In the event renegotiation of the hourly rates is conducted, the AGENCY reserves the right to audit for any change in the overhead rate currently in use by the CONSULTANT and modify the hourly rates to be paid to the CONSULTANT subsequent to the renegotiation accordingly. Any changes in the CONSULTANT'S fixed hourly rates may include salary or overhead adjustments. 2. Direct Nonsalary Costs Direct nonsalary costs will be reimbursed at the actual cost to the CONSULTANT. These charges may include, but are not limited to the following items: travel, printing, long distance telephone, supplies, computer charges, and fees of subconsultants. Air or train travel will only be reimbursed to economy class levels unless otherwise approved by the AGENCY. Automobile mileage for travel will be reimbursed as the current rate approved for AGENCY employees and shall be supported by the date and time of each trip with origin and designation of such trips. Subsistence and lodging expenses will be reimbursed at the same rate as for AGENCY employees. The billing for nonsalary cost, directly identifiable with the PROJECT, shall be an itemized listing of the charges supported by the original bills, invoices, expense accounts, and miscellaneous supporting data retained by the CONSULTANT. Copies of the original supporting documents shall be supplied to the AGENCY upon request. All above charges must be necessary for the services provided under this AGREEMENT. 3. Management Reserve Fund The AGENCY may desire to establish a Management Reserve Fund to provide the Agreement Administrator the flexibility of authorizing additional funds to the AGREEMENT for allowable unforeseen costs, or reimbursing the CONSULTANT for additional work beyond that already defined in this AGREEMENT. Such authorization(s) shall be in writing and shall not exceed the lesser of $50,000 or 10% of the Total Amount Authorized as shown in the heading ofthis AGREEMENT. The amount included for the Management Reserve Fund is shown in the heading of this agreement. This fund may be replenished in a subsequent supplemental agreement. Any changes requiring additional costs in excess of the "Management Reserve Fund" shall be made in accordance with Section XIV, "Extra Work." 4. Maximum Amount Payable The maximum amount payable for completion of work under this AGREEMENT shall not exceed the amount shown in the heading ofthis AGREEMENT. The maximum amount payable includes the Management Reserve Fund, but does not include payment for extra work as stipulated in Section XIV, "Extra Work." No minimum amount payable is guaranteed under this AGREEMENT. 5. Monthly Progress Payments Progress payments may be claimed on a monthly basis for all costs authorized in 1 and 2 above. The monthly invoices shall be supported by detailed statements for hours expended at the rates established in Exhibits D and E, including names and classifications of all employees, and invoices for all direct nonsalary expenses. To provide a means of verifying the invoiced salary costs for the consultant's employees, the agency may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the project at the time of the interview. 6. Inspection of Cost Records The CONSULTANT and his/her subconsultants shall keep available for inspection by representatives of the AGENCY, STATE, and the United States, for a period of three years after final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with following exception: if any litigation, claim, or audit is started before the three-year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. The three-year retention period begins when the CONSULTANT receives final payment. 7. Final Payment Final payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the work under this AGREEMENT, contingent upon receipt of all PS&E, plans, maps, notes, reports, and other related documents which are required to be furnished under this AGREEMENT. Acceptance of such final payment by the CONSULTANT shall constitute a release of all claims for payment which the CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and transmitted to the AGENCY by the CONSULTANT prior to its acceptance. Said final payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY may pursue with respect to such claims. The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time of final audit, all required adjustments will be made and reflected in a final payment. In the event that such final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to the AGENCY within ninety (90) days of notice of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT or any claims relating to the validity of a finding by the AGENCY of overpayment. ., Exhibit C-S Payment (Cost Per Unit Of Work) 1. When the AGENCY requests that a project be undertaken, the CONSULTANT shall prepare a fee proposal based upon a typical scope of work. Upon agreement by the AGENCY and the CONSULTANT upon a scope of work and related fee, a maximum encumbrance, inclusive of expenses, will be established, to serve as a maximum amount payable for the project. For accounting purposes, the CONSULTANT will be paid by the AGENCY for work done, based upon mutually agreed unit rates for work defined in Exhibits D and E. The listed rates shall be applicable throughout the life of this AGREEMENT. The rates are inclusive of actual salaries, overhead, profit, tools, materials, and equipment necessary or incidental for the completion of the AGREEMENT work. Compensation for the following expenditures will be allowed when these costs are incurred directly in fulfilling the terms ofthis AGREEMENT: 2. The maximum total amount payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown on page 1 of this AGREEMENT, unless a supplemental AGREEMENT has been negotiated and executed by the AGENCY prior to incurring any costs in excess of the maximum amount payable. 3. The CONSULTANT may submit invoices to the AGENCY not more often than once per month during the progress of the work for partial payment of work completed to date. The invoices will indicate the units of work completed each day during the invoice period in addition to the previous total. Direct non salary costs, such as travel, reproduction, telephone, supplies, and computer costs, shall be supported by an original or a copy of the invoice or billing instrument the CONSULTANT received for payment. For example, a copy of the telephone company's itemized listing showing each call is necessary to verify the billing for long distance telephone calls. Such invoices will be checked by the AGENCY and payment will be made in full for the amount thereof as has been found to represent the value of the completed work, less the amounts previously paid. --- - ------ Exhibit 0-2 . Consultant Fee Determination - Summary Sheet (Specific Rates of Pay) Fee Schedule Discipline or Job Title Hourly Overhead Profit Rate Rate @ % @ % Per Hour Proj ect Coordinator 105.00 0.00 0.00 105.00 - Exhibit F Payment Upon Termination of Agreement \ By the Agency Other Than for Fault of the Consultant (Refer to Agreement, Section IX) Lump Sum Contracts A final payment shall be made to the CONSULTANT which when added to any payments previously made shall total the same percentage of the Lump Sum Amount as the work completed at the time of termination is to the total work required for the PROJECT. In addition, the CONSULTANT shall be paid for any authorized extra work completed. Cost Plus Fixed Fee Contracts A final payment shall be made to the CONSULTANT which when added to any payments previously made, shall total the actual costs plus the same percentage of the fixed fee as the work completed at the time of termination is to the total work required for the Project. In addition, the CONSULTANT shall be paid for any authorized extra work completed. Specific Rates of Pay Contracts A final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT plus any direct non salary costs incurred at the time of termination of this AGREEMENT. Cost Per Unit of Work Contracts A final payment shall be made to the CONSULTANT for actual units of work completed at the time of termination of this AGREEMENT. Exhibit H (To Be Used Only If Insurance Requirements Are Increased) The professional liability limit of the CONSULTANT to the AGENCY identified in Section Xill, Legal Relations and Insurance of this Agreement is amended to $ IV;//:\ The CONSULTANT shall provide Professional Liability insurance with minimum per occurrence limits in the amount of $ 1,000,000.00 . Such insurance coverage shall be evidenced by one of the following methods: . Certificate of Insurance. . Self-insurance through an irrevocable Letter of Credit from a qualified financial institution. Self-insurance through documentation of a separate fund established exclusively for the payment of professional liability claims, including claim amounts already reserved against the fund, safeguards established for payment from the fund, a copy of the latest annual financial statements, and disclosure of the investment portfolio for those funds. Should the minimum Professional Liability insurance limit required by the AGENCY as specified above exceed $1 million per occurrence or the value of the contract, whichever is greater, then justification shall be submitted to the Federal Highway Administration (FHW A) for approval to increase the minimum insurance limit. IfFHW A approval is obtained, the AGENCY may, at its own cost; reimburse the CONSULTANT for the additional. professional liability insurance required. Notes: Cost of added insurance requirements: $ . Include all costs, fee increase, premiums. . This cost shall not be billed against an FHW A funded project. . For final contracts, include this exhibit.