HomeMy WebLinkAbout07/11/2018 STUDY SESSION PACKET
______________________________________________________________
th
CITY COUNCIL 345 6 Street, Suite 100, Bremerton, WA 98337 Phone (360) 473-5280
JULY 11, 2018
CITY COUNCIL STUDY SESSION
5:00 PM in COUNCIL CONFERENCE ROOM 603
The Study Session is open to the public, but there will be no opportunities for input or participation; no
action is anticipated during the Study Session except when deemed appropriate; and the content of
these items is subject to change. If approved by Council, the items will be placed on the July 18, 2018
Council Meeting Agenda:
A. LIMITED PRESENTATION PLANNED - The following items are budgeted items or subjects that
have been raised by the appropriate Council Committee Members:
1. Confirm Appointment of Jeffery Flood to the Bremerton Housing Authority Board of
Commissioners
2. Professional Services Agreement with BMcConsulting LLC for Lobbying Services
3. Interagency Agreement with Washington State Patrol for Fire Service Mobilization
4. Memorandum of
Understanding with the National Recreation and Park Association to administer the grant for
the Manette Park Renovation Project; and authorize Budget Amendment to the Parks Capital
Construction Fund
5. Purchase of Playground Equipment from Landscape Structures, Inc. for the Manette Park
Renovation Project
6. Eastside Wastewater Treatment Plant Outfall Lease Agreement with WA State Department
of Natural Resources
7. Purchase of a replacement Ford Police Interceptor from Columbia Ford of Longview, WA;
and authorize Budget Amendment to ERR Fund 510
8. Public Works Trust Fund Loan Funding Agreement for the Ostrich Creek Culvert
Improvements Project
9. Public Works Trust Fund Loan Funding Agreement for the Pine Road Basin Watershed
Storm Sewer Improvements Project
10. Contract Award to Transblue, LLC for Pedestrian Crossing and Sidewalk Improvements
Project
11. Ordinance to amend Bremerton Municipal Code Chapters 2.06 and 2.09; and to create new
Chapter 2.07 entitled "Office of City Clerk"
B. BRIEFINGS AND FULL PRESENTATIONS
1. Confirm Appointment of James Burchett to Police Chief
C. GENERAL COUNCIL BUSINESS
1. Finance & Parking Committee Briefing (6/26/18 Meeting) Chair Richard Huddy
2. Public Safety & Parks Committee Briefing (7/11/18 Meeting) Chair Leslie Daugs
3. Other General Council Business
D. ADJOURNMENT OF STUDY SESSION
Americans with Disabilities Act accommodations provided upon request. Those requiring special accommodations should contact
-5323 at least 24 hours prior to the meeting.
AGENDA BILL
CITY OF BREMERTON
A1
CITY COUNCIL
SUBJECT: Confirm Appointment of Jeffery Study Session Date: July 11, 2018
Flood to the Bremerton Housing Authority
COUNCIL MEETING Date: July 18, 2018
Board of Commissioners
Department: Executive
Presenter: Mayor Wheeler
Phone: (360) 473-5266
SUMMARY: There is a vacancy on the Bremerton Housing Authority Board of Commissioners due
to the resignation of Marwan Cameron. Mayor Wheeler is seeking conformation of the appointment
of Jeffery Flood to the Commission to fill the unexpired term.
ATTACHMENTS:
FISCAL IMPACTS (Include Budgeted Amount): None
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to confirm the appointment of Jeffery Flood on the Bremerton Housing Authority Board of
Commissioners with a term expiring on 12/31/2020.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
AGENDA BILL
CITY OF BREMERTON
A2
CITY COUNCIL
SUBJECT: Professional Services Study Session Date: July 11, 2018
Agreement with BMcConsulting LLC for
COUNCIL MEETING Date: July 18, 2018
Lobbying Services
Department: Mayor
Presenter: Greg Wheeler
Phone: (360) 473-5266
SUMMARY: This Consulting Agreement with BMcConsulting LLC will provide lobbying services from
July 1, 2018 through June 30, 2019.
ATTACHMENTS: Professional Services Agreement; and Exhibit A (Scope of Work)
FISCAL IMPACTS (Include Budgeted Amount): There are no financial impacts. The contract is
currently budged for 2018.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to authorize the Mayor to finalize and execute the Professional Services Agreement with
BMcConsulting LLC with substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
Document1
PROFESSIONAL SERVICES AGREEMENT
BMcConsulting LLC
BMcConsulting LLC
I. Scope: The Consultant agrees to perform the services more specifically described in the
Scope of Work, including any attachments thereto, attached hereto as Exhibit A, which is
incorporated by reference herein. The Scope of Work may be modified only pursuant to Section
VII.H of this Agreement. If the Scope of Work provides for unspecified additional services such
services shall only be performed upon the express written request of the City. Consultant further
represents that the services furnished under this Agreement will be performed in accordance with
generally accepted professional practices in effect at the time such services are performed.
II. Term: The City and the Consultant agree that the term of this Agreement will be for one
year beginning on July 1, 2018 and ending June 30, 2019. This Agreement may be terminated
pursuant to Section IX.
III. Compensation: In consideration of the services provided pursuant to this Agreement, the
City shall pay Consultant $4,000.00 per month from July 1, 2018 to December 31, 2018 and
$5,000.00 per month from January 1, 2019 to June 30, 2019.
The Consultant shall submit regular billing statements detailing work performed and
amount charged on each task or portion thereof. The descriptions shall conform to and fall
within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a
conforming billing statement, the City shall promptly process payment. PROVIDED,
HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay
work tasks under the time frame set forth in Section II herein. The Consultant's labor rates and
billing fees shall be as delineated in Exhibit C.
Consultant shall not perform work beyond the Scope of Work, nor shall be compensated
for such work, unless the Scope of Work or amount of compensation is modified pursuant to this
Agreement. Consultant shall only be compensated for additional services if requested pursuant
to Section I and, if not otherwise provided, such compensation shall be in accordance with
Exhibit C.
If a billing statement does not conform to this Agreement, the City may withhold
payment until the statement is brought into compliance. Such withholding does not relieve
Consultant of its obligations under this Agreement.
IV. Relationship of Parties: Consultant represents that it is skilled in the matters addressed
in the Scope of Work and is performing independent functions and responsibilities within its
field of expertise. Consultant and its personnel are independent Consultants and not employees
of the City. Consultant and its personnel have no authority to bind the City or to control the
Bremerton/BMcConsulting LLC
Lobbying Services
Page 1 of 6
employees, including, but not limited to, compensation, insurance, and unemployment insurance
are available from the City to the employees, agents, representatives, or sub-Consultants of the
Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of
Consultant's agents, employees, representatives and sub-Consultants during the performance of
this Agreement. The City may, during the term of this Agreement, engage other independent
Consultants to perform the same or similar work.
As an independent Consultant, Consultant is responsible for its own management. The
managerial control over Consultant or its personnel.
As an independent Consultant, Consultant is responsible for payment of all taxes and
licensing fees necessary to perform its obligations under this Agreement. These taxes and fees
include but are not limited to State industrial insurance, Business & Occupation, State
professional licensing, and City business licensing. If any taxes or fees due the City have been
declared delinquent, the City may withhold the delinquent amount, plus any additional charges
arising from the delinquency, from any payments due Consultant.
V. Indemnification:
A. Consultant shall defend, indemnify and hold the City, its officers, officials,
employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or
suits, including all legal costs and attorney fees, arising out of or in connection with the
performance of this Agreement except for that portion of the injuries and damages caused by the
, unless Consultant is conducting work pursuant to Subsection B below.
The City's review or acceptance of any of the work when completed shall not be grounds
to avoid any of these covenants of indemnification.
B. Architects, Engineers and Any Other Professional Listed In and Performing
Services Defined in RCW 4.24.115. Should a court of competent jurisdiction determine that
services provided pursuant to this Agreement is subject to RCW 4.24.115, then, in
the event of liability for damages arising out of bodily injury to persons or damages to property
caused by or resulting from the concurrent negligence of the Consultant and the City, its officers,
officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to
the extent of the Consultant's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S
WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY
FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this Agreement.
VI. Insurance: The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise from or in
Bremerton/BMcConsulting LLC
Lobbying Services
Page 2 of 6
connection with the performance of the work hereunder by the Consultant, its agents,
representatives, employees, sub-consultants or sub-Consultants.
Before beginning work on the project described in this Agreement, the Consultant shall
provide a Certificate of Insurance evidencing:
1. Professional Liability insurance with limits no less than $1,000,000 limit per
occurrence/claim.
2. Workers Compensation insurance as statutorily required by the Industrial Insurance Act
of the State of Washington.
Any payment of deductible or self insured retention shall be the sole responsibility of the
Consultant.
-
The City shall be named as an additional insured on the Commercial General Liability
insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an
endorsement that is acceptable to the City, which names the City as an additional insured shall be
attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of
all the required insurance policies and endorsements. The City further reserves the right to reject
any unacceptable policies and/or endorsements.
The Consultant's Commercial General Liability insurance shall contain a clause stating
that coverage shall apply separately to each insured against whom claim is made or suit is
brought, except with respects to the limits of the insurer's liability.
The Consultant's insurance shall be primary and non-contributory insurance as respects
the City and shall contain a waiver of subrogation against the City for claims arising out of any
operations, liabilities and obligations to which coverage applies. It shall be an affirmative
-5161, or by
th
certified mail, return receipt requested to City of Bremerton, attn: Risk Management, 345 6
Street, Suite 600, Bremerton, WA 98337 within two days of the cancellation, suspension or
substantive change of any insurance policy set out herein, and failure to do so shall be construed
to be a breach of this Agreement.
The City also reserves its unqualified right to require at any time and for any reason,
proof of coverage in the form of a duplicate of the insurance policy with all endorsements as
evidence of coverage.
VII. General Conditions:
A. Reports and Information: When requested by the City, Consultant shall furnish
periodic reports and documents on matters covered by this Agreement. The reports and
documents shall be furnished in the time and form requested. Consultant shall maintain
Bremerton/BMcConsulting LLC
Lobbying Services
Page 3 of 6
accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to
substantiate all billed amounts.
B. Ownership and Use of Records and Documents: Original documents, drawings,
designs and reports, including those in electronic format, developed under this Agreement are the
property of the City. All written information submitted by the City to the Consultant in
connection with the services performed by the Consultant under this Agreement will be
safeguarded by the Consultant to at least the same extent as the Consultant safeguards like
information relating to its own business. If such information is publicly available or is already in
Consultant's possession or known to it, or is rightfully obtained by the Consultant from third
parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise.
All data, documents and files created by Consultant under this Agreement may be stored
at Consultant's office in Gig Harbor, Washington. Consultant shall make such data, documents,
and files available to the City upon its request at all reasonable times for the purpose of editing,
modifying and updating as necessary until such time as the City is capable of storing such
information in the City's offices. Duplicate copies of this information shall be provided to the
City upon its request, and at reasonable cost.
All documents, including all reports, drawings, specifications, computer software or other
items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service
with respect to the project and are the property of the City. Any reuse by the City for other than
C. Use of Photographs and Images. Consultant shall not use or distribute
photographs or images depicting City officials, personnel, property, or equipment whether
prepared by Consultant or provided by City without prior written consent of the City. The City
will not unreasonably withhold its consent.
D. Work Performed at Consultant's Risk: Consultant shall take all precautions
necessary and shall be responsible for the safety of its employees, agents, and sub-consultants in
the performance of the work hereunder and shall utilize all protection necessary for that purpose.
All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss
of or damage to materials, tools, or other articles used or held for use in connection with the
work.
E. Place of Work: The Consultant shall perform the work authorized under this
Agreement at its offices in Gig Harbor, Washington. Meetings with the City staff as described in
Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed
upon by the parties.
F. Entire Agreement: This Agreement and its Exhibits constitutes the entire
agreement between the Parties, and the Parties acknowledge that there are no other agreements,
written or oral, that have not been set forth in the text of this Agreement.
Bremerton/BMcConsulting LLC
Lobbying Services
Page 4 of 6
G. Severability: Should any part of this Agreement be found void, the balance of the
Agreement shall remain in full force and effect.
H. Modification: This Agreement may only be modified by written instrument signed
by both Parties.
I. Written Notices: All communications regarding this Agreement shall be sent
to the parties at the addresses listed below by registered or 1st class mail, or by personal service,
and shall be deemed sufficiently given if sent to the addressee at the address stated in this
Agreement or such other address as may be hereafter specified in writing.
City Address Consultant Address
Greg Wheeler, Mayor Bryan McConaughy
City of Bremerton BMcConsulting, LLC
th
345 6 Street, Suite 1000 15 Marble Beach Dr. NW
Bremerton, WA 98110 Gig Harbor, WA 98332
J. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a
waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be
deemed waiver of any other right or power.
K. Non-Waiver of Breach: The failure of the City to insist upon strict performance
of any of the covenants and agreements contained herein, or to exercise any option herein
conferred in one or more instances shall not be construed to be a waiver or relinquishment of
said covenants, agreements or options, and the same shall be and remain in full force and effect.
L. Compliance with Laws: Consultant shall comply with all applicable Federal,
State, and local laws in performing its obligations under this Agreement.
M. Choice of Law and Venue: This Agreement shall be interpreted according to the
laws of the State of Washington. Any judicial action to resolve disputes arising out of this
Agreement shall be brought in Kitsap County Superior Court.
N. In the event of litigation to enforce any of the terms or
provisions herein, each p
O. Assignment: Any assignment of this agreement by the Consultant without the
written consent of the City shall be void.
VIII. Nondiscrimination: Consultant shall not discriminate in employment or services to the
public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or
sexual orientation except for employment actions based on bona fide occupational qualification.
IX. Termination: Either party may terminate this Agreement at any time for any reason
upon thirty (30) days prior written notice, subject to those obligations set forth in this Agreement
Bremerton/BMcConsulting LLC
Lobbying Services
Page 5 of 6
which arise upon or survive termination. Any Notice by Consultant shall include a report
showing the status of all items listed in the Scope of Work current through the termination date.
A. Rights Upon Termination: In the event of termination, the City shall pay for all
services performed by the Consultant to the effective date of termination, as described on a final
invoice submitted to the City. After termination, the City may take possession of all records and
data within the Consultant's possession pertaining to this project which may be used by the City
without restriction. Any such use not related to the project which Consultant was contracted to
perform shall be without liability or legal exposure to the Consultant.
X. Suspension & Debarment. For contracts involving Federal funding, Consultant hereby
certifies, by signing this agreement, that neither it nor its principals are presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency. Consultant shall provide
immediate written notice to the City if at any time it learns that it is or has become ineligible for
certification. Should Consultant enter into a covered transaction with another firm, Consultant
agrees by signing this agreement that it will verify that the firm with whom it intends to do
business is not debarred, suspended, ineligible, excluded or disqualified.
CITY OF BREMERTON CONSULTANT
By: Greg Wheeler By: Bryan McConaughy
Its: Mayor Its: Principal
Date:____________________ Date:____________________
Approved as to form: Attest:
______________________ ________________________
Bremerton City Attorney City Clerk
R:\\Legal\\Legal\\Contracts\\EXECUTIVE\\BMcConsulting Agreement 2018 - Final.doc
Bremerton/BMcConsulting LLC
Lobbying Services
Page 6 of 6
EXHIBIT A
SCOPE OF WORK
Consultant shall provide the City of Bremerton with the following governmental affairs services:
Work with the City to develop a holistic legislative agenda.
Meet with Legislators to promote City legislative agenda items.
Develop 2019 legislative agenda for the City.
Develop and lobby for Transportation and Capital Budget funding requests identified by the
Council and the Mayor.
Lobby the Legislature on all issues developed under the legislative program.
Lobby defensively on legislation that is introduced that would negatively impact the City.
Attend/monitor Puget Sound Coordinating Council to ensure City of Bremerton interests are
addressed.
Attend relevant meetings/monitor and assist with specific projects of interest to the City, in
particular, the State Route 303 (Warren Avenue/Wheaton Way) Corridor and the Harrison-
Eastside Employment Center.
If Consultant is hired to support the City of Bremerton during session, the following will be
included to the scope of work:
Provide the City with a weekly legislative report during the legislative session that includes
weekly hearing schedules and a summary of bills important to the City. Identify legislation
that would impact the City of Bremerton specifically.
Attend all relevant legislative hearings.
Develop talking points and testimony, as needed, for meetings with Legislators and testimony
before legislative committees; help coordinate such visits with City officials.
Њ
AGENDA BILL
CITY OF BREMERTON
A3
CITY COUNCIL
SUBJECT: Interagency Agreement with Study Session Date: July 11, 2018
Washington State Patrol for Fire Service
COUNCIL MEETING Date: July 18, 2018
Mobilization
Department: Fire
Presenter: Chief David Schmitt
Phone: (360) 473-5380
SUMMARY: The purpose of this agreement is to provide for the reimbursement of allowable Fire
Agency costs incurred while its asset are mobilized.
ATTACHMENTS: Interagency Agreement
FISCAL IMPACTS (Include Budgeted Amount): Temporary financial impact while awaiting
reimbursement from the State
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to approve the Washington State Patrol Interagency Agreement and authorize the Mayor to
finalize and execute the agreement with substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
WSP No. K13981
INTERAGENCY AGREEMENT
BETWEEN
STATE OF WASHINGTON
WASHINGTON STATE PATROL
AND
THE CITY OF BREMERTON
This Interagency Agreement (Agreement), pursuant to RCW 43.43.960 through RCW 43.43.964
(State Fire Service Mobilization) and Chapter 39.34 RCW (Interlocal Cooperation Act), is made and
entered into by and between the Washington State Patrol, hereinafter referred to as "WSP," and the
City of Bremerton, acting through the Bremerton Fire Department, a statutorily authorized fire agency
within the State of Washington, hereinafter referred to as "Fire Agency."
The purpose of this Agreement is to provide for the reimbursement of allowable Fire Agency costs
incurred while its assets are mobilized in accordance with RCW 43.43.960 through RCW 43.43.964
and the Washington State Fire Services Resource Mobilization Plan (Mobilization Plan). The
Mobilization Plan and any subsequent versions adopted pursuant to RCW 43.43.962 are
incorporated herein by this reference.
Therefore, it is mutually agreed that:
1. Mobilization Plan. The Mobilization Plan provides a process to quickly notify, assemble and
deploy fire service personnel and equipment to any local fire jurisdiction in Washington State that
has expended all local and mutual aid resources in attempting to manage, mitigate and control
an emergency incident or situation for the protection of life and property. If the Fire Agency
responds with its available assets to an incident mobilization, both parties shall comply with the
procedures detailed in the Mobilization Plan.
2. Period of Performance. The period of performance of this Agreement begins on July 1, 2018
and ends on June 30, 2023 unless terminated sooner as provided herein.
3. Billing Procedures. WSP shall reimburse the Fire Agency upon the receipt of properly
executed claim forms submitted by the Fire Agency according to the Mobilization Plan. Claims
for payment submitted by the Fire Agency to WSP for costs due and payable under this
Agreement shall be paid by WSP if received by WSP within 45 days from the end of each
respective fire mobilization. The Fire Agency is required to be registered as a Statewide Payee
prior to submitting a request for payment under this Contract. The Washington State
Department of Enterprise Services (DES) maintains the Statewide Payee Registration System;
to obtain registration materials go to
http://www.des.wa.gov/services/ContractingPurchasing/Business/VendorPay/Pages/default.as
px.
4. Compliance with Civil Rights Laws. During the period of performance for this Agreement,
both parties shall comply with all federal and state nondiscrimination laws.
5. Records Maintenance. Both parties shall maintain books, records, documents and other
evidence which sufficiently and properly reflect all direct and indirect costs expended by either
party in the performance of the services described herein. These records shall be subject to
inspection, review or audit by personnel of both parties, other personnel duly authorized by either
party, the Office of the State Auditor, and federal officials so authorized by law. Both parties
Page 1 of 2
shall retain all books, records, documents, and other material relevant to this Agreement for six
(6) years after expiration, and the Office of the State Auditor, federal auditors, and any persons
duly authorized by the parties shall have full access and the right to examine any of these
materials during this period.
6. Agreement Management. The work described herein shall be performed under the
coordination of Chief David Schmitt of the Fire Agency, and Assistant State Fire Marshal Melissa
Gannie of WSP, or their successors. They shall provide assistance and guidance to the other
party necessary for the performance of this Agreement.
7. Hold Harmless. Each party shall defend, protect and hold harmless the other party from and
against all claims, suits and/or actions arising from any negligent or intentional act or omission
under
this Agreement.
8. Agreement Alterations and Amendments. This Agreement may be amended by mutual
agreement of the parties. Such amendments shall not be binding unless they are in writing and
signed by personnel authorized to bind each of the parties.
9. Termination. Either party may terminate this Agreement upon thirty (30) calendar days' written
notification to the other party. If this Agreement is so terminated, the terminating party shall be
liable only for performance in accordance with the terms of this Agreement for performance prior
to the effective date of termination.
10. Appeals of Denied Claims. In the event that WSP denies payment of claim(s) submitted by the
Fire Agency under this Agreement, the Fire Agency may appeal the denial according to the
Mobilization Plan. The process contained in the Mobilization Plan is the sole administrative
recourse available to the Fire Agency for the appeal of denied claims.
11. Order of Precedence. In the event of any inconsistency in the terms of this Agreement, the
inconsistency shall be resolved by giving precedence in the following order:
1. Applicable federal and state statutes and regulations;
2. Terms and Conditions contained in this Agreement
3. Any other provisions of the Agreement, whether incorporated by reference or otherwise.
12. All Writings Contained Herein. This Agreement contains all the terms and conditions agreed
upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of
this Agreement shall be deemed to exist or to bind any of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement.
For the Washington State Patrol: For the City of Bremerton:
FOR: John R. Batiste, Chief Mayor Greg Wheeler
Date Date
APPROVED AS TO FORM BY THE OFFICE OF THE ATTORNEY GENERAL 2/5/2008
Page 2 of 2
AGENDA BILL
CITY OF BREMERTON
A4
CITY COUNCIL
SUBJECT: Study Session Date: July 11, 2018
Play Spaces Grant Acceptance;
COUNCIL MEETING Date: July 18, 2018
Memorandum of Understanding with the
Department: Parks and Recreation
National Recreation and Park Association to
Presenter: Jeff Elevado
administer the grant for the Manette Park
Phone: (360) 473-5428
Renovation Project; and authorize Budget
Amendment to the Parks Capital
Construction Fund
SUMMARY: The attached Memo of Understanding with the National Recreation and Park
Association (NRPA) is to confirm approval and acceptance of a $30,000 award for the Manette Park
Improvement Project. The Meet Me at the Park Play Spaces grant, made possible through the
support of The Walt Disney Company, will provide increased access to inclusive play and physical
activity for kids and families. NRPA will manage the grant and distribute the funds. There is no
required match for this grant.
ATTACHMENTS: 1) NRPA Memo of Understanding
FISCAL IMPACTS (Include Budgeted Amount): The 2018 Parks Capital Construction Fund
Revenue and Expenditure Budgets will be adjusted by $30,000 respectively.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to authorize the Mayor to finalize and execute the agreement with substantially the same terms
and conditions as presented and amend the 2018 Parks Capital Construction Fund Revenue and
Expenditure Budgets by $30,000 respectively.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
Your text hereATTACHMENT 1
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (MOU), dated June 4, 2018 (Effective Date), is made between National
Recreation and Park Association, a Virginia-based not-for-profit 501(c)3 with a mailing address of 22377
Belmont Ridge Road, Ashburn, Virginia, 20148 (NRPA) and City of Bremerton Parks and Recreation
Department, a provider of park, recreation, or community services in Bremerton, Washington (Grantee).
1. Purpose
The purpose of this MOU is to confirm approval of the terms governing the acceptance and use of Thirty
Thousand Dollars ($30,000) made available to Grantee for the implementation of the project selected for grant
funding (Project): Manette Neighborhood Park - multi-sport court and innovative parks features.
Made possible through the support of The Walt Disney Company, NRPA is managing the administration of the
Meet Me at the Park Play Spaces grant program (Program). Grants made through this Program are intended to
provide increased access to inclusive play and physical activity for kids and families.
Having been selected as a recipient of funding through this Program, Grantee is required to accept the terms
contained within this MOU in order to receive funding as a grant recipient.
2. Project Funding
Within 30 days upon execution of this MOU, NRPA will send Grantee a check in the amount of Thirty Thousand
Dollars ($30,000). Funds will be distributed by NRPA.
3. Grantee Requirements
Grantee will:
A. Implement Project in alignment with the application submitted to NRPA by Grantee.
B. Participate in a mandatory orientation call for all grantees on Monday June 18, 2018 at 3pm ET.
C. Demonstrate progress toward project outcomes by August 1, 2018.
D. Complete Project by November 1, 2018.
E. Conduct local community outreach through web, social media, and local press release to help
promote the project, the grant and opportunities for volunteerism. NRPA will provide a toolkit of
sample content for this outreach.
F. Document and share with NRPA success stories, press releases, photos, videos, quotes, local media
coverage and highlights throughout the project and grant period.
G. Offer at least one opportunity for volunteerism for the community and Disney personnel (if
applicable) during the grant period.
H. Administer surveys to 32 community members who are users of the project Pre- and Post-
improvements. Template and further instruction to be provided by NRPA.
I. Perform and record observations of the project site Pre- and Post-improvements. Templates and
further instruction to be provided by NRPA.
J. When requested, provide brief updates on the project to NRPA.
K. If selected, allow the project to be featured in a video to be coordinated and produced by NRPA
L. Submit final report via online template provided by NRPA by November 16, 2018 to include:
Narrative summary of the Project
Narrative summary of Project-related community engagement and employee
volunteer event(s)
Page | 1 of 3
Progress towards meeting Project metrics and outcomes as outlined in the proposal
submitted by Grantee
Budget summary documenting how the grant funds were used
Any photos, local press coverage, videos, quotes and stories
4. Promotion
NRPA and Disney may use the Grantee and/or park names, photos, and/or information in connection with the
Project for promotional or other purposes associated with the Project, in any and all media, without limitation and
without further payment, notification, or permission, except where prohibited by law. oto
release form does not cover promotional and other uses, NRPA can provide one upon request.
5. Limits of Liability
Neither NRPA, nor Disney, or any of their respective parents, subsidiaries, affiliates, officers, directors or
employees shall be liable to Grantee and/or its affiliates for any liability of any kind relating to or arising out of
participation in this Project hereunder.
6. Confidentiality
During the term of this MOU, the parties may learn certain confidential information of each other. For purposes
of this MOU, confidential information means the confidential and proprietary information, not generally known
by non-party personnel, used by the disclosing party and which is proprietary to the disclosing party, and
includes, without limitation, the disclosing party's trade secret or proprietary personnel, financial, marketing and
business information, including strategic, operations and other business plans or forecasts, and confidential
information provided by the disclosing party regarding its employees, customers, vendors, sponsors and other
contractors. Confidential information shall not be disclosed to non-party personnel.
7. Term
The term of this MOU will commence on the Effective Date and shall continue until November 16, 2018.
8. Use of Grant Funds
The Grantee shall use the full amount of the grant for the purposes set forth in Section 1. Unless otherwise agreed
in writing by the Grantor, the Grantee shall return any portion of the grant and the income earned thereon that is
not expended for such purposes.
The Grantee agrees not to use any portion of the grant or any income derived from the grant for the
following:
A. To carry on propaganda or otherwise attempt to influence legislation within the meaning of Section
4945(d)(1) of the Code;
B. To influence the outcome of any specific public election or to carry on, directly or indirectly, any voter
registration drive within the meaning of Section 4945(d)(2) of the Code;
C. To provide a grant to an individual for travel, study, or similar purpose within the meaning of Section
4945(g) of the Code, without prior written approval of Grantor.
D. Payments of salaries, other compensation, or expense reimbursement to employees of the Grantee
within the scope of their employment do not constitute for these purposes and are not
subject to these restrictions;
E. Except as expressly may be authorized in the Grant Description, to provide a grant to any other
organization without prior written approval of the Grantor; or
Page | 2 of 3
F. To promote or engage in criminal acts of violence, terrorism, hate crimes, the destruction of any state,
or discrimination on the basis of race, national origin, religion, military and veteran status, disability,
sex, age, or sexual orientation, or support of any entity that engages in these activities.
G. To travel to Annual Conference or any other conference travel.
All unspent or uncommitted grant funds shall be invested in highly liquid investments (such as an
interest-bearing bank account) with the primary objective being preserving the grant funds availability for the
project. Any interest or other income generated by the grant funds must be applied to the purposes described
in the Grant Description.
9. Audit
Grantee should maintain their
financial receipts and must make the records available at any time as requested by NRPA. If as a result of an
audit, NRPA determines that funds were not spent in accordance with the purposes of this grant, the grantee may
be required to return any funds not substantiated. If NRPA determines that grant funds were used for fraudulent
purposes, the grantee may be barred from participation in any further programs.
10. Termination
Either party may terminate this MOU at any time effective upon receipt of written notice by the other party of
failure to perform. The non-performing party shall have sixty (60) days to cure its obligation. If the non-
performing party fails to satisfactorily cure its obligation within this time this MOU will be terminated.
Neither party shall be liable to the other by reason of termination of this MOU for compensation, reimbursement
or damages for any loss of prospective profits on anticipated sales or for expenditures, investments, leases or other
commitments relating to the business or goodwill of any of the parties, notwithstanding any law to the contrary.
No termination of this MOU shall release the obligation to pay any sums due to the terminating party which
accrued prior to such termination.
These parties have caused this MOU to be signed by their duly authorized representatives as of the date set forth.
National Recreation and Park Association City of Bremerton Parks and Recreation Department
By: _________________________ By: _______________________
Rebecca Wickline
Printed Name: _________________________ Printed Name: _______________________
Senior VP, Development
Title: _________________________ Title: _______________________
June 4, 2018
Date: _________________________ Date: _______________________
Page | 3 of 3
AGENDA BILL
CITY OF BREMERTON
A5
CITY COUNCIL
SUBJECT: Purchase of Playground Study Session Date: July 11, 2018
Equipment from Landscape Structures, Inc.
COUNCIL MEETING Date: July 18, 2018
for the Manette Park Renovation Project
Department: Parks & Recreation
Presenter: Jeff Elevado
Phone: (360) 473-5428
SUMMARY: The City of Bremerton applied for and received funding from the Recreation and
Conservation Office Local Parks grant in the amount of $500,000 for improvements to the Manette
Park.
playground area. Equipment pricing has been competitively solicited and publicly awarded through
the National IPA cooperative contract. Total Equipment Cost: $98,625.38 with freight and sales tax
included.
ATTACHMENTS: 1) Landscape Structures, Inc. Quote #1802-7507R; 2) National IPA Contract
Award; 3) Manette Playground Design
FISCAL IMPACTS (Include Budgeted Amount): Funding budgeted in the 2018 Parks Capital
Construction Fund as part of the Manette Park Renovation Project.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to approve the purchase of playground equipment from Landscape Structures, Inc. through the
King County Directors Association Purchasing Cooperative in the amount of $98,625.38 including
Washington State sales tax and authorize the Mayor to finalize and execute the agreement with
substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
Manette Park
Quote/Worksheet # 1802-7507R
Option #2
BILLTO:
APPROVAL SIGNATURE
City of Bremerton Parks & Recreation
680 Lebo Blvd.
Bremerton, WA 98310
______________________________________________
Jeff Elevado | 360-473-5428
signature
jeff.elevado@ci.bremerton.wa.us
______________________________________________
PROJECTLOCATION / SHIPTO:
print name
PleaseAdvise
______________________________________________
date
Please sign below and fax back to 206-932-5778 to confirm order
DateLead TimeQuoted by
February 21, 2018John Larson 206.940.1108
14-21 Days
Quantity Design # DescriptionUnit PriceTotal
$ 93,350.00
1 lot 101079-2-4
PlayBooster system by LSI
$ -
$ -
$ -
$ -
ağƷĻƩźğƌ ƦƩźĭźƓŭ ƚƓƌǤ͵ LƓƭƷğƌƌğƷźƚƓ ƓƚƷ źƓĭƌǒķĻķ ƚƓ Ʒŷźƭ ƨǒƚƷĻ͵
ΫCƩĻźŭŷƷ ƨǒƚƷĻ ƷƚĬĻ ǝğƩźŅźĻķ
$ -
$ (7,468.00)
TCPN: Certified Proposal Number R170302-WA-18129
Issue Purchase Order to:Send Purchase Order for Processing to:
$ 85,882.00
Sub Total
LandscapeStructures, Inc.PlayCreation, Inc.
attention: Misty Linkattention: JohnLarson
$ 4,600.00
Freight*
601 -7th Street South2104 SW 152nd Street, ste 1
Delano, MN 55328-0198Burien, WA 98166
$ 8,143.38
Tax (9%)
mistylink@playlsi.comjohnl@playcreation.com
206.932.5778 fax
$ 98,625.38
TOTAL
AGENDA BILL
CITY OF BREMERTON
A6
CITY COUNCIL
SUBJECT: Eastside Wastewater Treatment Study Session Date: July 11, 2018
Plant Outfall Lease Agreement with WA
COUNCIL MEETING Date: July 18, 2018
State Department of Natural Resources
Department: PW&U/WWTP
Presenter: Ned Lever/Pat Coxon
Phone: (360) 473-2398
SUMMARY: The existing outfall lease agreement for the Eastside wastewater treatment plant with
the Washington Department of Natural Resources has expired and needs to be renewed.
The new outfall lease agreement is for a thirty (30) year term.
ATTACHMENTS: Lease Agreement Added
FISCAL IMPACTS (Include Budgeted Amount): $1,460 Lease Fee, to be paid out of the WWTP
O&M Budget of $2,198,864.
STUDY SESSION AGENDA: No Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION: Move to approve the Westside Wastewater Treatment Plant Outfall
Lease Agreement with the Washington Department of Natural Resources, and authorize the Mayor to
finalize and execute the agreement with substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/07/15
When recorded, return to:
City of Bremerton
1600 Oyster Bay Avenue South
Bremerton, WA 98337
AQUATIC LANDS OUTFALL EASEMENT
EASEMENT NO. 51-077356
Grantor: Washington State Department of Natural Resources
Grantee(s):City of Bremerton
Legal Description:Govt. Lot 4 (NW1/4 SE1/4), Section 11, Township 24 North, Range 1 East,
W.M.
Assessor’s Property Tax Parcel or Account Number: Not Applicable
Assessor’s Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Easement: 112401-4-002-2004
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources (“State”), and City of Bremerton,agovernment agency
(“Grantee”).
BACKGROUND
Grantee desires to use state-owned aquatic lands located in Kitsap County, Washington for the
purpose of discharging effluentfrom an outfall pipeline. Grantee has obtained regulatory
authorizations for this purpose including, but not limited to, a National Pollutant Discharge
Elimination System (“NPDES”) Permit.
Aquatic Lands OutfallEasement (1/17)Page 1 of 41Easement No. 51-077356
State is willing to grant an easement for a term to Grantee in reliance upon Grantee’s promises to
operate the outfall in compliance with all laws and permits and in the manner as described in all
regulatory authorizations.
Nonetheless, State’s goals are to promote water re-use and reduce reliance on in-water disposal
of waste effluent, storm water and other discharges that affect the use and environmental
conditions of state-owned aquatic lands and associated biological communities. Therefore, future
grants of easement rights will depend on Grantee’s satisfactory progress toward implementation
of reasonably practical disposal alternatives.
THEREFORE, the Parties agree as follows:
SECTION 1 GRANT OF EASEMENT
1.1Easement Defined.
(a)State grants and conveys to Grantee a nonexclusive easement, subject to the terms
and conditions of this agreement, over, upon, and under the real property
described in Exhibit A and in Section 2 of Exhibit B. In this agreement, the term
“Easement” means this agreement and the rights granted; the term “Easement
Property” means the real property subject to the easement.
(b)This Easement is subject to all valid interests of third parties noted in the records
of Kitsap County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Easement does not include any right to harvest, collect or damage any
natural resource, including aquatic life or living plants, any water rights, or any
mineral rights, including any right to excavate or withdraw sand, gravel, or other
valuable materials.
Survey and Easement Property Descriptions.
1.2
(a)Grantee representsthat the unrecordedsurveyreferenced in Exhibit A isa true
and accurate description of the improvements existing on the portion of the
Easement Property that will be used for the operation, use, reconstruction,
replacement, installation, maintenance, repair, and removal of one Municipal
Wastewater Treatment Plant Outfall Pipe.Grantee warrants that the legal
description in Section 2 of Exhibit B is a true and accurate description of the
temporary easementarea needed for construction purposes.
(b)Grantee shall not rely on any written legal descriptions, surveys, plats, or
diagrams (“property description”) provided by State. Grantee shall not rely on
State’s approval or acceptance of the legal description in Exhibit A, the legal
description in Section 2 of Exhibit B, or any other Grantee-provided property
description as affirmation or agreement that legal description in Exhibit A,
Section 2 of Exhibit B, or other property description is true and accurate.
(c)Grantee shall submit an updated record of survey for State’s acceptance within
180 days of completing the Proposed Work described in Exhibit B, but no later
Aquatic Lands OutfallEasement (1/17)Page 2 of 41Easement No. 51-077356
than June 28, 2020. Upon State’s written acceptance of the updated record of
survey, thelegal description in the updated record of survey shall supersede and
replace the legal description of the Easement Property within Exhibit A.
(d) Grantee’s submission of the updated record of survey shall constitute a warranty
that the updated record of survey is a true and accurate description of the
Easement Property boundaries and the “as built” location of all improvements
constructed or installed by Grantee within the Easement Property. Grantee’s
obligation to provide a true and accurate description of the Easement Property
boundaries and the as built location of the improvements constructed or installed
by Grantee in the updated record of survey is a material term of this Lease.
(e)At Grantee’s expense, and no later than thirty (30) days after receiving State’s
written acceptance of the final record of survey, Grantee shall record the final
record of survey in the County in which the Easement Property is located.
Grantee shall provide State with recording information, including the date of
recordation and the file number, within fifteen (15) days after recording the final
record of survey.
1.3 Condition of Easement Property.State makes no representation regarding the
condition of the Easement Property, improvements located on the Easement Property, the
suitability of the Easement Property for Grantee’s Permitted Use, compliance with governmental
laws and regulations, availability of utility rights, access to the Easement Property, or the
existence of hazardous substances on the Easement Property.
SECTION 2 USE
2.1Permitted Use.Grantee shall use the portion of the Easement Property described in
Exhibit A for the operation, use, reconstruction, replacement,installation,maintenance, repair,
and removal of one Municipal Wastewater Treatment Plant Outfall Pipe(the “Permitted Use”),
and for no other purpose. The Permitted Use is described or shown in detail in Exhibit B.
Grantee shall use the portion of the Easement Property described in Section 2 to Exhibit B for
temporary construction purposes only.
2.2Restrictions on Use.
(a)Grantee shall not cause or permit any damage to natural resources on the
Easement Property or adjacent state-owned aquatic lands, regardless of whether
the damages are a direct or indirect result of the Permitted Use.
(b) Unless approved by State in writing, Grantee shall not cause or permit any filling
activity to occur on the Easement Property or adjacent state-owned aquatic land.
This prohibition includes any deposit of rock, earth, ballast, wood waste, refuse,
garbage, waste matter (including chemical, biological, or toxic wastes),
hydrocarbons, any other pollutants, or other matter. Outfall discharges in full
compliance with a valid NPDES Permit are not subject to this prohibition.
(c)Grantee shall neither commit nor allow waste to be committed to or on the
Easement Property oradjacent state-owned aquatic land.
(d)Failure to Comply with Restrictions on Use.
Aquatic Lands OutfallEasement (1/17)Page 3 of 41Easement No. 51-077356
(1) Grantee’s failure to comply with the restrictions on use under this
Subsection 2.2 is a breach subject to Subsection 14.1. Grantee shall cure
the breach by taking all steps necessary to remedy the failure and restore
the Easement Property and adjacent state-owned aquatic lands to the
condition before the failure occurred within the time for cure provided in
Subsection 14.1. Additionally, Grantee shall mitigate environmental
damages in accordance with Paragraph 2.2(d)(3).
(2)If Grantee fails to cure the default in the manner described in this
Paragraph 2.2(d), State may terminate in accordance with Subsection 14.1.
In addition, the State may (1) restore the Easement Property and adjacent
state-owned aquatic lands and charge Grantee remedial costs and/or (2)
charge Grantee environmental damages. Upon demand by State, Grantee
shall pay all remedial costs and environmental damages.
(3)Mitigation of Environmental Damages
(i)Grantee shall prepare a written plan, subject to State’s approval,
incorporating measures to (1) eliminate or minimize future impacts
to natural resources, (2) replace unavoidable lost or damaged
natural resource values, and (3) monitor and report on plan
implementation. Grantee shall implement the plan upon State’s
approval.
(ii)Grantee shall compensate State in accordance with Subsection 5.4
for lost or damaged resource values that are not replaceable.
(iii) If a regulatory authority requires Grantee to provide mitigation on
state-owned aquatic lands, Grantee shall coordinate the proposed
mitigation activities with state and obtain an appropriate use
authorization prior to commencement of activities.
(e)State’s failure to notify Grantee of Grantee’s failure to comply with all or any of
the restrictions set out in this Subsection 2.2 does not constitute a waiver of any
remedies available to State.
(f) This Section 2.2 does not limit Grantee’s liability under Section 8, below.
2.3 Conformance with Laws. Grantee shall keep current and comply with all conditions
and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding its use of the Easement Property.
2.4Liens and Encumbrances.Grantee shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use of the Easement Property, unless
expressly authorized by State in writing.
2.5Interference with Other Uses.
(a)Grantee shall exercise Grantee’s rights under this Easement in a manner that
minimizes or avoids interference with the rights of State, the public or others with
valid right to use or occupy the Easement Property or surrounding lands and
water.
Aquatic Lands OutfallEasement (1/17)Page 4 of 41Easement No. 51-077356
(b)To the fullest extent reasonably possible, Grantee shall place and construct
Improvements in a manner that allows unobstructed movement in and on the
waters above and around the Easement Property.
(c)Except in an emergency, Grantee shall provide State with written notice of
construction or other significant activity on Easement Property at least thirty (30)
days in advance. “Significant Activity” means any activity that may affect use or
enjoyment by the State, public, or others with valid rights to use or occupy the
Easement Property or surrounding lands and water.
(d)Grantee shall mark the location of any hazards associated with the Permitted Use
and any Improvements in a manner that ensures reasonable notice to the public.
2.6Amendment Upon Change of Permit Status. State reserves the right to amend the
terms and conditions of this Easement whenever any regulatory authority (1) modifies a permit
in a manner affecting the provisions of this Easement or (2) allows for a change in the manner of
outfall operation including, but not limited to, a change in the type, quality, or quantity of
discharge.
SECTION 3 TERM
3.1Term Defined. The term of this Easement for the location described in Exhibit A is
st
Thirty (30)years (the “Term”), beginning on the 1day of July2018(the “Commencement
th
Date”), and ending on the 30day of June2048(the “Termination Date”), unless terminated
sooner under the terms of this Easement.The temporary construction easement described in
Section 2 of Exhibit B shall terminateupon completion of the Proposed Work described in
st
Exhibit B or on the 31day ofDecember2019, whichever date comes first.
3.2Renewal of the Easement.
(a)This Easement does not provide a right of renewal. Grantee may apply for a new
Easement, whichState has discretion to grant subject to requirements in
Paragraph 3.2(b).Grantee must apply for a new Easement at least one (1) year
prior to Termination Date and State will respond with denial or consent within
ninety (90) days.
3.3End of Term.
(a)Upon the expiration or termination of this Easement, Grantee shall remove
Improvements in accordance with Section 7, Improvements, and surrender the
Easement Property to State restored to a condition substantially like its natural
state before construction and operation of the outfall.
(b)If the Easement Property does not meet the condition described in Paragraph
3.3(a), the following provisions apply.
(1)State shall provide Grantee a reasonable time to take all steps necessary to
remedy the conditionof the Easement Property. State may require
Grantee to enter into a right of entry or other use authorization prior to the
Grantee entering the Easement Property to remedy any breach of this
Subsection 3.3.
Aquatic Lands OutfallEasement (1/17)Page 5of 41Easement No. 51-077356
(2)If Grantee fails to remedy the condition of the Easement Property in a
timely manner, State may take any steps reasonably necessary to remedy
Grantee’s failure. Upon demand by State, Grantee shall pay all costs of
such remedial action, including but not limited to the costs of removing
and disposing of any material deposited improperly on the Easement
Property, lost revenue resulting from the condition of the Easement
Property prior to and during remedial action, and any administrative costs
associated with the remedial action.
(c) The provisions in this Paragraph 3.3 shall apply to the portion of the Easement
Property used for temporary construction purposes (legally described in Section 2
of Exhibit B) upon the expiration or termination of the temporary construction
easement.
SECTION 4FEES
4.1Fee.For the Term, Grantee shall pay to State an administrative fee calculated in
accordance with RCW 79.110.230(1) payable on or before the Commencement Date. Any
payment not paid by State’s close of business on the date due is past due.
4.2Payment Place. Grantee shall make payment to Financial Management Division, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
SECTION 5 OTHER EXPENSES
5.1Utilities. Grantee shall pay all fees charged for utilities in connection with the use of the
Easement Property.
5.2Taxes and Assessments.Grantee shall pay all taxes, assessments, and other
governmental charges, of any kind whatsoever, applicable or attributable to the Easement and the
Permitted Use.
5.3 Failure to Pay.If Grantee fails to pay any of the amounts due under this Easement,
State may pay the amount due, and recover its cost in accordance with Section 6.
5.4 Environmental Damages.
(a)If required to mitigate for environmental damage under Paragraph 2.2(d)(3)(ii),
Grantee shall compensate State for lost or damaged resource values upon State’s
demand. The value of damages shall be determined in accordance with Paragraph
5.4(b).
(b)Unless the Parties otherwise agree on the value, a three-member panel of
appraisers will determine the measure of lost or damaged resource values. The
appraisers shall be qualified to assess economic value of natural resources. State
and Grantee each shall appoint and compensate one member of the panel. By
consensus, the two appointed members shall select the third member, who will be
Aquatic Lands OutfallEasement (1/17)Page 6 of 41Easement No. 51-077356
compensated by State and Grantee equally. The panel shall base the calculation of
damages on generally accepted valuation principles. The written decision of the
majority of the panel shall bind the Parties.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1Late Charge.If State does not receive any payment within ten (10) days of the date due,
Grantee shall pay to State a late charge equal to four percent (4%) of the amount of the payment
or Fifty Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to
the delay.
6.2Interest Penalty for PastDue Fees and Other Sums Owed.
(a)Grantee shall pay interest on the past due feesat the rate of one percent (1%) per
month until paid, in addition to paying the late charges determined under
Subsection 6.1, above.
(b)If State pays or advances any amounts for or on behalf of Grantee, Grantee shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (1%) per month from the date State notifies
Grantee of the payment or advance. This includes, but is not limited to taxes,
assessments, insurance premiums, costs of removal and disposalof unauthorized
materials pursuant to Subsection 2.2 above, costs of removal and disposal of
improvements pursuant to Section 7 below, or other amounts not paid when due.
6.3Referral to Collection Agency and Collection Agency Fees. If State does not receive
payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Grantee
shall pay collection agency fees in addition to the unpaid amount.
6.4No Accord and Satisfaction. If Grantee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. No endorsement
or statement on any check, any payment, or any letter accompanying any check or payment
constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS
7.1Improvements Defined.
(a)“Improvements,” consistent with RCW 79.105 through 79.145, are additions
within, upon, or attached to the land. This includes, but is not limited to,
structures and fixtures.
(b)“Personal Property” means items that can be removed from the Easement
Property without (1) injury to the Easement Property, adjacent state-owned lands
or Improvements or (2)diminishing the value or utility of the Easement Property,
adjacent state-owned lands or Improvements.
Aquatic Lands OutfallEasement (1/17)Page 7of 41Easement No. 51-077356
(c)“State-Owned Improvements” are Improvements made or owned by State. State-
Owned Improvements includes any construction, alteration, or addition to State-
Owned Improvements made by Grantee.
(d)“Grantee-Owned Improvements” are Improvements made by Grantee with State’s
consent.
(e)“Unauthorized Improvements” are Improvements made on the Easement Property
without State’s prior consent or Improvements made by Grantee that do not
conform with plans submitted to and approved by the State.
(f)“Improvements Owned by Others” are Improvements made by Others with a right
to occupy or use the Easement Property or adjacent state-owned lands.
7.2Existing Improvements. On the Commencement Date, the following Improvements are
located on the Easement Property:20-inch diameter cast iron pipe; 36-inchdiameterreinforced
concrete pipe with an84-foot long diffuser with twenty-one,5.75-inch diameter ports. The
Improvements are Grantee-Owned Improvements.
7.3Construction, Major Repair, Modification, and Demolition.
(a)This Subsection 7.3 governs construction, alteration, replacement, major repair,
modification alteration, demolition and deconstruction of Improvements
(“Work”).
(b)Except in an emergency, Grantee shall not conduct any Workwithout State’s
prior written consent, as follows:
(1)State may deny consent if State determines that denial is in the best
interests of the State. Statemay impose additional conditions reasonably
intended to protect and preserve the Easement Propertyand/or adjacent
state-owned aquatic lands.If Work is for removal of Improvements at End
of Term, State may waive removal of any or all Improvements.
(2)Except in an emergency, Grantee shall submitto State plans and
specifications describing the proposed Work at least sixty (60) days
before submitting permit applications to regulatory authorities unless
Grantee and State otherwise agree to coordinate permit applications. At a
minimum or if no permits are necessary, Grantee shall submit plans and
specifications at least ninety (90) days before commencement of Work.
(3)State waives the requirement for consent if State does not notify Grantee
of its grant or denial of consent within sixty (60) daysof submittal.
(c)Grantee shall notify State of emergencyWorkwithin five (5) business days of the
start of such Work. Upon State’s request, Grantee shall provide State with plans
and specifications or as-builts of emergency Work.
(d)Grantee shall not commence or authorize WorkuntilGrantee or Grantee’s
contractorhas:
(1)Obtained a performance and payment bond in an amount equal to one
hundred twenty-five percent (125%) of the estimated cost of construction.
Grantee shall maintain the performanceand payment bond until Grantee
pays in full the costs of the Work, including all laborers and material
persons.
(2)Obtained all required permits.
Aquatic Lands OutfallEasement (1/17)Page 8of 41Easement No. 51-077356
(3) Provided notice of Significant Activity in accordance with Paragraph
2.5(c).
(e) Grantee shall preserve and protect Improvements Owned by Others, if any
(f) Grantee shall preserve all legal land subdivision survey markers and witness
objects (“Markers.”) If disturbance of a Marker will be a necessary consequence
of Grantee’s construction, Grantee shall reference and/or replace the Marker in
accordance with all applicable laws and regulations current at the time, including,
but not limited to Chapter 58.24 RCW. At Grantee’s expense, Grantee shall
retain a registered professional engineer or licensed land surveyor to reestablish
destroyed or disturbed Markers in accordance with U.S. General Land Office
standards.
(g)Before completing Work, Grantee shall remove all debris and restore the
Easement Property, as nearly as possible, to itsnatural condition before the Work
began. If Work is intended for removal of Improvements at End of Term, Grantee
shall restore the Easement Property in accordance with Subsection 3.3, End of
Term.
(h) Upon completing work, Grantee shall promptly provide State with as-built plans
and specifications.
(i) State shall not charge rent for authorized Improvements installed by Grantee
during this Term of this Easement, but State may charge rent for such
Improvements when and if the Grantee or successor obtains a subsequent use
authorization for the Easement Property and State has waived the requirement for
Improvements to be removed as provided in Subsection 7.4.
(j)State will not approve plans to construct new Improvements or expand existing
Improvements inor over habitats designated by State as important habitat.
Grantee shall confirm location of important habitat on Property, if any, with State
before submitting plans and specifications.
(k)Grantee shall only conduct in-water Work during time periods authorized for such
work under WAC 220-660-330, Authorized Work Times in Saltwater Areas, as
amended, or as otherwise directed by the Washington Department of Fish and
Wildlife (WDFW).
(l)Grantee shall bury any new pipeline installation below the sediment surface
within nearshore areas.
7.4Grantee-Owned Improvements at End of Easement.
(a)Disposition
(1)Grantee shall remove Grantee-Owned Improvements in accordance with
Subsection 7.3 upon the expiration, termination, or cancellation of the
Easement unless State waives the requirement for removal or State
determines that abandonment of Improvements is in the best interests of
State.
(2)Grantee-Owned Improvements remaining on the Easement Property on the
expiration, termination or cancellation date become State-Owned
Improvements without payment by State, unless State elects otherwise.
State may refuse or waive ownership.
Aquatic Lands OutfallEasement (1/17)Page 9 of 41Easement No. 51-077356
(3)If Grantee-Owned Improvements remain on the Easement Property after
the expiration, termination, or cancellation date without State’s consent,
State may remove all Improvements and Grantee shall pay the costs of
removal and disposal.
(b)Determination of Removal or Abandonment.
(1)State may waive removal of any or all Grantee-Owned Improvements
whenever State determines that it is in the best interests of the State. State
will consider it in the best interests of the State to waive removal where
abandonment is less detrimental than removal to the long term use and
management of state-owned lands and resources.
(2)If Grantee renews the Easement or enters into a new Easement, State may
waive requirement to remove Grantee-Owned Improvements. State also
may consent to Grantee’s continued ownership of Grantee-Owned
Improvements.
(3)If Grantee does not renew the Easement or enter into a new Easement,
State and Grantee shall coordinate removal or abandonment as follows:
(i)Grantee must notify State at least one (1) year before the
Termination Date of its proposal to either leave or remove
Grantee-Owned Improvements.
(ii)State, within ninety (90) days, will notify Grantee whether State
(1) does not waive removal or (2) consents to abandonment.
(c) Grantee’s Obligations if State Consents to Abandonment.
(1)Grantee shall conduct Work necessary for abandonment in accordance
with Subsection 7.3.
(2)The submittal of plans and specificationsshall identify means for plugging
pipelines and notifying public of abandoned Improvements.
(d)Grantee’s Obligations if State Waives Removal.
(1)Grantee shall not remove Improvements if State waives the requirement
for removal of any or all Grantee-Owned Improvements.
(2)Grantee shall maintain such Improvements in accordance with this
Easement until the expiration, termination, or cancellation date. Grantee
is liable to State for cost of repair if Grantee causes or allows damage to
Improvements State has designated to remain.
7.5Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b)State may either:
(1) Consent to Grantee ownership of the Improvements, or
(2) Charge use and occupancy fee in accordance with RCW 79.105.200 of the
Improvements from the time of installation or construction and
(i) Require Grantee to remove the Improvements in accordance with
Subsection 7.3, in which case Grantee shall pay use and occupancy
fee for the Improvements until removal,
(ii) Consent to Improvements remaining and Grantee shall pay use and
occupancy fee for the use of the Improvements, or
Aquatic Lands OutfallEasement (1/17)Page 10of 41Easement No. 51-077356
(iii) Remove Improvements and Grantee shall pay for the cost of
removal and disposal, in which case Grantee shall pay use and
occupancy fee for use of the Improvements until removal and
disposal.
7.6 Disposition of Personal Property.
(a)Grantee retains ownership of Personal Property unless Grantee and State agree
otherwise in writing.
(b) Grantee shall remove Personal Property from the Easement Property by the
Termination Date. Grantee is liable for any damage to the Easement Property and
to any Improvements that may result from removal of Personal Property.
(c)State may sell or dispose of all Personal Property left on the Easement Property
after the Termination Date.
(1)If State conducts a sale of Personal Property, State shall apply proceeds
first to the State’s administrative costs in conducting the sale, second to
payment of amount that then may be due from the Grantee to the State,
and State shall pay the remainder, if any, to the Grantee.
(2) If State disposes of Personal Property, Grantee shall pay for the cost of
removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1Definitions.
(a) “Hazardous Substance” means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup, including, but not limited to, the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C. 6901 et. seq.,as amended;
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (“CERCLA”), 42 U.S.C. 9601 et seq., as amended; Washington’s Model
Toxics Control Act (“MTCA”), Chapter 70.105D RCW,as amended; and
Washington’s Sediment Management Standards, WAC Chapter 173-204.
(b)“Release or threatened release of Hazardous Substance” means a release or
threatened release asdefined under any law described in Paragraph8.1(a) or any
similar event defined under any such law.
(c)“Utmost care” means such a degree of care as would be exercised by a very
careful, prudent, and competent person under the same or similar circumstances;
the standard of care established under MTCA, RCW 70.105D.040.
8.2General Conditions.
(a)Grantee’s obligations under this Section 8 extend to the area in, on, under, or
above:
(1)The Easement Property and
Aquatic Lands OutfallEasement (1/17)Page 11of 41Easement No. 51-077356
(2)Adjacent state-owned aquatic lands where a release or the presence of
Hazardous Substances may arise from Grantee’s use of the Easement
Property.
(b)Standard of Care.
(1)Grantee shall exercise the utmost care with respect to Hazardous
Substances.
(2)In relation to the Permitted Use, Granteeshall exercise utmost care for the
foreseeable acts or omissions of third parties with respect to Hazardous
Substances, and the foreseeable consequences of those acts or omissions,
to the extent required to establish a viable, third-party defense under the
law, including – but not limited to – RCW 70.105D.040.
8.3 Current Conditions and Duty to Investigate.
(a)Hazardous Substances are known to exist in, on, under, or above the Easement
Property or adjacent state-owned lands. These are identified in Exhibit C, which
is attached for information only and is not incorporated in the Easement. State
makes no representations or warranties of any kind or nature regarding the
accuracy, completeness, or any other matter relating to Exhibit C. Hazardous
Substances other than those identified in Exhibit C may exist in, on, under, or
above the Easement Property.
(b) This Easement does not impose a duty on State to conduct investigations or
supply information to Grantee about Hazardous Substances.
(c)Grantee is responsible for conducting all appropriate inquiry and gathering
sufficient information concerning the Easement Property and the existence, scope,
and location of any Hazardous Substances on the Easement Property or on
adjacent lands that allows Grantee to meet Grantee’s obligations under this
Easement.
8.4Use of Hazardous Substances.
(a) Grantee, its, contractors, agents, employees, guests, invitees, or affiliates shall not
use, store, generate, process, transport, handle, release, or dispose of Hazardous
Substances, except in accordance with all applicable laws.
(b) Grantee shall not undertake, or allow others to undertake by Grantee’s
permission, acquiescence, or failure to act, activities that:
(1)Result in a release or threatened release of Hazardous Substances, or
(2)Cause, contribute to, or exacerbate any contamination exceeding
regulatory cleanup standards whether the regulatory authority requires
cleanup before, during, or after Grantee’s use of the Easement Property.
(c) If use of Hazardous Substance related to the Permitted Use results in a violation
of an applicable law:
(1)Grantee shall submit to State any plans for remedying the violation, and
(2)State may require remedial measures in addition to remedial measures
required by regulatory authorities.
8.5 Management of Contamination.
(a)Grantee shall not undertake activities that:
Aquatic Lands OutfallEasement (1/17)Page 12of 41Easement No. 51-077356
(1)Damage or interfere with the operation of remedial or restoration
activities;
(2)Result in human or environmental exposure to contaminated sediments;
(3)Result in the mechanical or chemical disturbance of on-site habitat
mitigation.
(b)Grantee shall not interfere with access by:
(1)Employees and authorized agents of the Environmental Protection
Agency, the Washington State Department of Ecology, health department,
or other similar environmental agencies; and
(2)Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Easement Property. Grantee
may negotiate an access agreement with such parties, but Grantee may not
unreasonably withhold such agreement.
8.6Notification and Reporting.
(a)Grantee shall immediately notify State if Grantee becomes aware of any of the
following:
(1)A release or threatened release of Hazardous Substances;
(2)Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of any Hazardous Substance;
(3)Any lien or action arising from the foregoing;
(4)Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous
Substances;
(5)Any notification from the US Environmental Protection Agency (EPA) or
the Washington State Department of Ecology (DOE) that remediation or
removal of Hazardous Substances is or may be required at the Easement
Property.
(b)Grantee’s duty to report under Paragraph 8.6(a) extends to the Easement Property,
adjacent state-owned aquatic lands where a release or the presence of Hazardous
Substances could arise from the Grantee’s use of the Easement Property, and any
other property used by Grantee in conjunction with Grantee’s use of the Easement
Property where a release or the presence of Hazardous Substances on the other
property would affect the Easement Property.
(c)Grantee shall provide State with copies of all documents concerning
environmental issues associated with the Easement Property, and submitted by
Grantee to any federal, state or local authorities. Documents subject to this
requirement include, but arenot limited to, applications, reports, studies, or audits
for National Pollution Discharge and Elimination System Permits (NPDES);
Army Corps of Engineers permits; State Hydraulic Project Approvals (HPA);
State Water Quality certification; Substantial Development permit; and any
reporting necessary for the existence, location, and storage of Hazardous
Substances on the Easement Property.
Aquatic Lands OutfallEasement (1/17)Page 13of 41Easement No. 51-077356
8.7Indemnification.
(a) “Liabilities” as used in this Subsection 8.7 means any claims, demands,
proceedings, lawsuits, damages, costs, expenses, fees (including attorneys’ fees
and disbursements), penalties, or judgments.
(b) Grantee shall fully indemnify, defend, and hold State harmless from and against
any Liabilities that arise out of, or relate to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Grantee, its contractors, agents,
invitees, guests, employees, affiliates, licensees, or permittees occurring
anytime Grantee uses or has used the Easement Property;
(2)The release or threatened release of any Hazardous Substance, or the
exacerbation of any Hazardous Substance contamination resulting from
any act or omission of Grantee, its contractors, agents, employees, guests,
invitees, or affiliates occurring anytime Grantee uses or has used the
Easement Property.
(c)Grantee shall fully indemnify, defend, and hold State harmless for any Liabilities
that arise out of or relate to Grantee’s breach of obligations under Subsection 8.5.
(d)Third Parties.
(1) Grantee has no duty to indemnify State for acts or omissions of third
parties unless Grantee fails to exercise the standard of care required by
Paragraph 8.2(b)(2). Grantee’s third-party indemnification duty arises
under the conditions described in Subparagraph 8.7(d)(2).
(2)If an administrative or legal proceeding arising from a release or
threatened release of Hazardous Substances finds or holds that Grantee
failed to exercise care as described in Subparagraph 8.7(d)(1), Grantee
shall fully indemnify, defend, and hold State harmless from and against
any liabilities arising from the acts or omissions of third parties in relation
to the release or threatened release of Hazardous Substances. This
includes any liabilities arising before the finding or holding in the
proceeding.
(e) Grantee is obligated to indemnify under the Subsection 8.7 regardless of whether
a NPDES or other permit or license authorizes the discharge or release of
Hazardous Substances.
8.8 Reservation of Rights.
(a) For any environmental liabilities not covered by the indemnification provisions of
Subsection 8.7, the Parties expressly reserve and do not waive or relinquish any
rights, claims, immunities, causes of action, or defenses relating to the presence,
release, or threatened release of Hazardous Substances that either Party may have
against the other under law.
(b)This Easement affects no right, claim, immunity, or defense either Party may have
against third parties, and the Parties expressly reserve all such rights, claims,
immunities, and defenses.
(c) The provisions under this Section 8 do not benefit, or create rights for, third
parties.
Aquatic Lands OutfallEasement (1/17)Page 14of 41Easement No. 51-077356
(d) The allocations of risks, liabilities, and responsibilities set forth above do not
release either Party from, or affect the liability of either Party for, claims or
actions by federal, state, or local regulatory agencies concerning Hazardous
Substances.
8.9Cleanup.
(a) If Grantee’s act, omission, or breach of obligation under Subsection 8.4 results in
a release of Hazardous Substances, Grantee shall, at Grantee’s sole expense,
promptly take all actions necessary or advisable to clean up the Hazardous
Substances in accordance with applicable law. Cleanup actions include, without
limitation, removal, containment, and remedial actions.
(b) Grantee’s obligation to undertake a cleanup under Section 8 is limited to those
instances where the Hazardous Substances exist in amounts that exceed the
threshold limits of any applicable regulatory cleanup standards.
(c)At the State’s discretion, Grantee may undertake a cleanup of the Easement
Property pursuant to the Washington State Department of Ecology’s Voluntary
Cleanup Program, provided that Grantee cooperates with the Department of
Natural Resources in development of cleanup plans. Grantee shall not proceed
with Voluntary Cleanup without Department of Natural Resources approval of
final plans. Nothing in the operation of this provision is an agreement by
Department of Natural Resources that the Voluntary Cleanup complies with any
laws or with the provisions of this Easement. Grantee’s completion of a
Voluntary Cleanup is not a release from or waiver of any obligation for
Hazardous Substances under this Easement.
8.10Sampling by State, Reimbursement, and Split Samples.
(a)Grantee shall conduct sediment sampling, if required, in accordance with Exhibit
B.
(b) State may conduct sampling, tests, audits, surveys, or investigations (“Tests”) of
the Easement Property at any time to determine the existence, scope, or effects of
Hazardous Substances.
(c) If such Tests, along with any other information, demonstrate the existence,
release, or threatened release of Hazardous Substances arising out of any action,
inaction, or event described or referred to in Subsection 8.4, above, Grantee shall
promptly reimburse State for all costs associated with such Tests.
(d) State shall not seek reimbursement for any Tests under this Subsection 8.10
unless State provides Grantee written notice of its intent to conduct any Tests at
least thirty (30) calendar days prior to undertaking such Tests, except when such
Tests are in response to an emergency. Grantee shall reimburse State for Tests
performed in response to an emergency if State has provided such notice as is
reasonably practical.
(e)Grantee is entitled to obtain split samples of any Test samples obtained by State,
but only if Grantee provides State with written notice requesting such samples
within twenty (20) calendar days of the date of Grantee’s receipt of notice of
State’s intent to conduct any non-emergency Tests. Grantee solely shall bear the
additional cost, if any, of split samples. Grantee shall reimburse State for any
Aquatic Lands OutfallEasement (1/17)Page 15of 41Easement No. 51-077356
additional costs caused by split sampling within thirty (30) calendar days after
State sends Grantee a bill with documentation for such costs.
(f)Within sixty (60) calendar days of a written request (unless otherwise required
pursuant to Paragraph8.6(c), above), either Party to this Easement shall provide
the other Party with validated final data, quality assurance/quality control
information, and chain of custody information, associated with any Tests of the
Easement Property performed by or on behalf of State or Grantee. There is no
obligation to provide any analytical summaries or the work product ofexperts.
8.11Closeout Assessment.
(a)State has discretion to require Grantee to conduct a Closeout Environmental
Assessment (“Closeout Assessment”) prior to Termination of the Easement.
(b)The purpose of the Closeout Assessment is to determine the existence, scope, or
effects of any Hazardous Substances on the Easement Property and any associated
natural resources. The Closeout Assessment may include sediment sampling.
Sediment sampling includes those sample locations and parameters reported in
Exhibit C as well as any additional testing State may require.
(c)State shall provide Grantee with written notice that a Closeout Assessment is
required no later than one hundred eighty (180) calendar days prior to the
Termination Date, or within ninety (90) days of any valid notice to terminate the
Easement earlier than originally agreed.
(d)Within sixty (60) days of State’s notice that Closeout Assessment is required and
before commencing assessment activities, Grantee shall submit a proposed plan
for conducting the Closeout Assessment in writing for State’s approval.
(e)If State fails to approve or disapprove of the plan in writing within sixty (60) days
of its receipt, State waives requirement for approval.
(f)Grantee shall be responsible for all costs required to complete planning, sampling,
analyzing, and reporting associated with the Closeout Assessment.
(g)If the initial results of the Closeout Assessment disclose that Hazardous
Substances may have migrated to other property, State may require additional
Closeout Assessment work to determine the existence, scope, and effect of any
Hazardous Substances on adjacent property, any other property subject to use by
Grantee in conjunction with its use of the Easement Property, or on any associated
natural resources.
(h)Grantee shall submit Closeout Assessment to State upon completion.
(i)As required by law, Grantee shall report to the appropriate regulatory authorities
if the Closeout Assessment discloses a release or threatened release of Hazardous
Substances.
SECTION 9 ASSIGNMENT
Grantee shall not assign any part of Grantee’s interest in this Easement or the Easement Property
or grant any rights or franchises to third parties without State’s prior written consent. State
reserves the right to reasonably change the terms and conditions of this Easement upon State’s
consent to assignment.
Aquatic Lands OutfallEasement (1/17)Page 16of 41Easement No. 51-077356
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
Indemnity.
10.1
(a) Grantee shall indemnify, defend, and hold State, its employees, officers, and
agents harmless from any Claims arising out of the Permitted Use or activities
related to the Permitted Use by Grantee, its contractors, agents, invitees, guests,
employees, affiliates, licensees, or permitteesto the fullest extent permitted by
law and subject to the limitations provided below.
(b) “Claim” as used in this Subsection 10.1 means any financial loss, claim, suit,
action, damages, expenses, costs, fees (including attorneys’ fees), fines, penalties,
or judgments attributable to bodily injury; sickness; disease; death; damages to
tangible property, including, but not limited to, land, aquatic life, and other
natural resources; and loss of natural resource values. “Damages to tangible
property” includes, but is not limited to, physical injury to the Easement Property,
diminution of value, and/or damages resulting from loss of use of the Easement
Property.
(c) Grantee is obligated to indemnify under this Subsection 10.1 regardless of
whether any other provision of this Agreement or NPDES or other permit or
license authorizes the discharge or release of a deleterious substance resulting in a
claim.
(d) No damages or fees paid by Grantee to State under other provisions of this
Easement are a setoff against Grantee’s obligation to indemnify under this
Subsection 10.1
(e) State shall not require Grantee to indemnify, defend, and hold State harmless for
claims causedsolely by or resulting solely from the negligence or willful act of
State or State’s elected officials, employees, or agents.
(f)Grantee specifically and expressly waives anyimmunity that may be granted
under the Washington State Industrial Act, Title 51 RCW in connection with its
obligation to indemnify, defend, and/or hold State and its agencies, officials,
agents, or employees harmless. Further, the indemnification obligation under this
Easement shall not be limited in any way by any limitation on amount or type of
damages, compensation, or benefits payable to or for any third party under the
worker’s compensation acts.
(g) Section 8, Environmental Liability/Risk Allocation, exclusively governs
Grantee’s liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold State harmless for Hazardous Substances
(h) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a
claim, suit, or action for injuries or damage is caused by or results from the
concurrent negligence of (a) the State or State’s agents or employees and (b) the
Grantee or Grantee’s agents or employees, these indemnity provisions shall be
valid and enforceable only to the extent of the negligence of the Grantee and those
acting on its behalf.
10.2Insurance Terms.
(a) Insurance Required.
Aquatic Lands OutfallEasement (1/17)Page 17of 41Easement No. 51-077356
(1)Grantee certifies that it is self-insured for all the liability exposures, its
self-insurance plan satisfies all State requirements, and its self-insurance
plan provides coverage equal to that required in this Subsection 10.2 and
by Subsection 10.3, Insurance Types and Limits. Grantee shall provide to
State evidence of its status as a self-insured entity. Upon request by State,
Grantee shall provide a written description of its financial condition and/or
the self-insured funding mechanism. Grantee shall provide State with at
least thirty (30) days’ written notice prior to any material changes to
Grantee’s self-insured funding mechanism.
(2)Unless State agrees to an exception, Grantee shall provide insurance
issued by an insurance company or companies admitted to do business in
the State of Washington and have a rating of A-or better by the most
recently published edition of Best’s Reports. Grantee may submit a
request to the risk manager for the Department of Natural Resources for an
exception to this requirement. If an insurer is not admitted, the insurance
policies and procedures for issuing the insurance policies must comply
with Chapter 48.15 RCW and 284-15 WAC.
(3)The State of Washington, the Department of Natural Resources, its elected
and appointed officials, agents, and employees must be named as an
additional insured on all general liability, excess, umbrella, property,
builder’s risk, and pollution legal liability insurance policies.
(4)All insurance provided in compliance with this Easement must be primary
as to any other insurance or self-insurance programs afforded to or
maintained by State.
(b)Waiver.
(1)Grantee waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Easement covers these
damages.
(2)Except as prohibited by law, Grantee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this Easement.
(c)Proof of Insurance.
(1)Grantee shall provide State with a certificate(s) of insurance executed by a
duly authorized representative of each insurer, showing compliance with
insurance requirements specified in this Easement and, if requested, copies
of policies to State.
(2)The certificate(s) of insurance must reference additional insureds and the
Easement number.
(3)Receipt of such certificates or policies by State does not constitute
approval by State of the terms of such policies.
(d)State must receive written notice before cancellation or non-renewal of any
insurance required by this Easement, in accordance with the following:
(1)Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium,
provide State ten (10) days’ advance notice of cancellation; otherwise,
Aquatic Lands OutfallEasement (1/17)Page 18of 41Easement No. 51-077356
provide State forty-five (45) days’ advance notice of cancellation or non-
renewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to
non-payment of premium, provide State ten (10) days’ advance notice of
cancellation; otherwise, provide State thirty (30) days’ advance notice of
cancellation or non-renewal.
(e) Adjustments in Insurance Coverage.
(1)State may impose changes in the limits of liability for all types of
insurance as State deems necessary.
(2)Grantee shall secure new or modified insurance coverage within ninety
(90) days after State requires changes in the limits of liability.
(f) If Grantee fails to procure and maintain the insurance described above within
fifteen (15) days after Grantee receives a notice to comply from State, State may
either:
(1) Deem the failure an Event of Default under Section 14, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Grantee shall pay to State the full amount paid
by State, together with interest at the rate provided in Subsection 6.2 from
the date of State’s notice of the expenditure until Grantee’s repayment.
(g)General Terms.
(1) State does not represent that coverage and limits required under this
Easement will be adequate to protect Grantee.
(2)Coverage and limits do not limit Grantee’s liability for indemnification
and reimbursements granted to State under this Easement.
(3)The Parties shall use any insurance proceeds payable by reasonof damage
or destruction to Easement Property first to restore the Easement Property,
then to pay the cost of the reconstruction, then to pay the State any sums in
arrears, and then to Grantee.
10.3Insurance Types and Limits.
(a)General Liability Insurance.
(1)Grantee shall maintain commercial general liability insurance (CGL) or
marine general liability (MGL) covering claims for bodily injury, personal
injury, or property damage arising on the Easement Property and/or
arising out of the Permitted Use and, if necessary, commercial umbrella
insurance with a limit of not less than One Million Dollars ($1,000,000)
per each occurrence. If such CGL or MGL insurance contains aggregate
limits, the general aggregate limit must be at least twice the “each
occurrence” limit. CGL or MGL insurance must have products-completed
operations aggregate limit of at least two times the “each occurrence”
limit.
(2)CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
personal injury and advertising injury, and liability assumed under an
Aquatic Lands OutfallEasement (1/17)Page 19of 41Easement No. 51-077356
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross-liability)
condition.
(3)MGL insurance must have no exclusions for non-owned watercraft.
(b)Workers’ Compensation.
(1)State of Washington Workers’ Compensation.
(i)Grantee shall comply with all State of Washington workers’
compensation statutes and regulations. Grantee shall provide
workers’ compensation coverage for all employees of Grantee.
Coverage must include bodily injury (including death) by accident
or disease, which arises out of or in connection with the Permitted
Use or related activities.
(ii)If Grantee fails to comply with all State of Washington workers’
compensation statutes and regulations and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees, Grantee shall indemnify State. Indemnity includes all
fines; payment of benefits to Grantee, employees, or their heirs or
legal representatives; and the cost of effecting coverage on behalf
of such employees.
(2)Longshore and Harbor Worker’s Act. The Longshore and Harbor
Worker’s Compensation Act (33 U.S.C. Section 901 et. seq.) may require
Grantee to provide insurance coverage for longshore and harbor workers
other than seaman.Failure to obtain coverage in the amount required by
law may result in civil and criminal liabilities. Grantee is fully responsible
for ascertaining if such insurance is required and shall maintain insurance
in compliance with this Act. Grantee is responsible for all civil and
criminal liability arising from failure to maintain such coverage.
(3)Jones Act. The Jones Act (46 U.S.C. Section 688) may require Grantee to
provide insurance coverage for seamen injured during employment
resulting from negligence of the owner, master, or fellow crew members.
Failure to obtain coverage in the amount required by law may result in
civil and criminal liabilities. Grantee is fully responsible for ascertaining
if such insurance is required and shall maintain insurance in compliance
with this Act. Grantee is responsible for all civil and criminal liability
arising from failure to maintain such coverage.
(c)Employer’s Liability Insurance. Grantee shall procure employer’s liability
insurance, and, if necessary, commercial umbrella liability insurance with limits
not less than One Million Dollars ($1,000,000) each accident for bodily injury by
accident or One Million Dollars ($1,000,000) each employee for bodily injury by
disease.
(d)Pollution Legal Liability Insurance.
(1)Grantee shall procure and maintain for the duration of this Easement
pollution legal liability insurance, including investigation and defense
costs, for bodily injury and property damage, including loss of use of
damaged property or of property that has been physically damaged or
destroyed. Such coverage must provide for both on-site and off-site
Aquatic Lands OutfallEasement (1/17)Page 20of 41Easement No. 51-077356
cleanup costs and cover gradual and sudden pollution, and include in its
scope of coverage natural resource damage claims. Grantee shall maintain
coverage in an amount of at least:
(i)Three million Dollars ($3,000,000) each occurrence for Grantee’s
operations at the site(s) identified above, and
(ii)Six Million Dollars ($6,000,000) general aggregate or policy limit,
if any.
(2) Such insurance may be provided on an occurrence or claims-made basis.
If such coverage is obtained as an endorsement to the CGL and is
provided on a claims-made basis, the following additional conditions must
be met:
(i)The Insurance Certificatemust state that the insurer is covering
Hazardous Substance removal.
(ii) The policy must contain no retroactive date, or the retroactive date
must precede abatement services.
(iii) Coverage must be continuously maintained with the same
insurance carrier through the official completion of any work on
the Easement Property.
(iv) The extended reporting period (tail) must be purchased to cover a
minimum of thirty-six (36) months beyond completion of work.
10.4Financial Security.
(a) At its own expense, Grantee shall procure and maintain during the Term of this
Easement a corporate security bond or provide other financial security that State
may approve (“Security”). Grantee shall provide Security in an amount equal to
ZeroDollars ($0.00), which is consistent with RCW 79.105.330, and secures
Grantee’s performance of its obligations under this Easement, with the exception
of the obligations under Section 8, Environmental Liability/Risk Allocation.
Grantee’s failure to maintain the Security in the required amount during the Term
constitutes a breach of this Easement.
(b)All Security must be in a form acceptable to the State.
(1) Bonds must be issued by companies admitted to do business within the
State of Washington and have a rating of A-, Class VII or better, in the
most recently published edition of Best’s Reports, unless State approves
an exception. Grantee may submit a request to risk manager for the
Department of Natural Resources for an exception to this requirement.
(2) Letters of credit, if approved by State, must be irrevocable, allow State to
draw funds at will, provide for automatic renewal, and comply with
RCW 62A.5-101, et. seq.
(3) Savings account assignments, if approved by State, must allow State to
draw funds at will.
(c)Adjustment in Amount of Security.
(1)State may require an adjustment in the Security amount:
(i)At the same time as revaluation, if any,
(ii) As a condition of approval of assignment of this Easement,
Aquatic Lands OutfallEasement (1/17)Page 21of 41Easement No. 51-077356
(iii)Upon a material change in the condition or disposition of any
Improvements, or
(iv)Upon a change in the Permitted Use.
(2)Grantee shall deliver a new or modified form of Security to State within
thirty (30) days after State has required adjustment of the amount of the
Security.
(d)Upon any default by Grantee in its obligations under this Easement, State may
collect on the Security to offset the liability of Grantee to State. Collection on the
Security does not (1) relieve Grantee of liability, (2) limit any of State’s other
remedies, (3) reinstate or cure the default or (4) prevent termination of the
Easement because of the default.
SECTION 11 MAINTENANCE AND REPAIR
11.1State’s Repairs. Stateshallnotberequiredtomakeanyalterations,maintenance,
replacements,orrepairsin,on,orabouttheEasement Property,oranypartthereof, during
theTerm.
11.2Grantee’s Repairs and Maintenance.
(a)Granteeshall,atitssolecostandexpense,keepandmaintaintheEasement
Propertyandallimprovements(regardlessofownership)ingoodorderand
repair,inaclean,attractive,andsafecondition.
(b)Granteeshall,atitssolecostandexpense,makeanyandalladditions,
repairs,alterations,maintenance,replacements,orchangestothe
Easement PropertyortoanyimprovementsontheEasement Property
whichmayberequiredbyanypublicauthorityhaving jurisdictionover
theEasement Propertyandrequiringitforpublichealth,safetyand
welfarepurposes.
(c)Except as provided in Section 11.2(d), alladditions,repairs,alterations,
replacementsorchangestothe
Easement Propertyandtoany
improvementsontheEasement Propertyshallbemadeinaccordancewith,
andownershipshallbegovernedby,Section7,above.
(d)Routine maintenance and repair are acts intended to prevent a decline, lapse
or, cessation of the Permitted Use and associated Improvements. Routine
maintenance or repair that does not require regulatory permitsdoes not
require authorization from State pursuant to Section 7.
(e)Upon completion of maintenance activities, Grantee shall remove all debris and
restore the Easement Property, as nearly as possible, to the condition prior to the
commencement of work.
SECTION 12 DAMAGE OR DESTRUCTION
12.1Notice and Repair.
(a)In the event of any known damage to or destruction of the Easement Property or
Aquatic Lands OutfallEasement (1/17)Page 22of 41Easement No. 51-077356
any Improvements, Grantee shall promptly give written notice to State. State
does not have actual knowledge of the damage or destruction of the Easement
Property or any Improvements without Grantee’s written notice.
(b) Unless otherwise agreed in writing, Grantee shall promptly reconstruct, repair, or
replace any Improvements in accordance with Subsection 7.3, Construction,
Major Repair, Modification, and Demolition, as nearly as possible to its condition
immediately prior to the damage or destruction. Where damage to state-owned
aquatic land or natural resources is attributable to the Permitted Use or related
activities, Grantee shall promptly restore the lands or resources to the condition
preceding the damage in accordance with Subsection 7.3 unless otherwise agreed
in writing.
12.2 State’s Waiver of Claim. State does not waive any claims for damage or destruction of
the Easement Property unless Stateprovides written notice to Grantee of each specific claim
waived.
12.3Insurance Proceeds. Grantee’s duty to reconstruct, repair, or replace any damage or
destruction of the Easement Property or any Improvements on the Easement Property is not
conditioned upon the availability of any insurance proceeds to Grantee from which the cost of
repairs may be paid. The Parties shall use insurance proceeds in accordance with Subparagraph
10.2(g)(3).
SECTION 13 CONDEMNATION
In the event of condemnation, the Parties shall allocate the award between State and Grantee
based upon the ratio of the fair market value of (1) Grantee’s rights in the Easement Property and
Grantee-Owned Improvements and (2) State’s interest in the Easement Property; the
reversionary interest in Grantee-Owned Improvements, if any; and State-Owned Improvements.
In the event of a partial taking, the Parties shall compute the ratio based on the portion of
Easement Property or Improvements taken. If Grantee and State are unable to agree on the
allocation, the Parties shall submit the dispute to binding arbitration in accordance with the rules
of the American Arbitration Association.
SECTION 14 TERMINATION
14.1Termination by Breach.State may terminate this Easement upon Grantee’s failure to
cure a breach of the terms and conditions of this Easement. State shall provide Grantee written
notice of breach. Grantee shall have sixty (60) days after receiving notice to cure. State may
extend the cure period if breach is not reasonably capable of cure within sixty (60) days.
14.2Termination by Nonuse.If Grantee does not use the Easement Property for a period of
three (3) successive years, this Easement terminates without further action by State. Grantee’s
rights revert to State upon Termination by Nonuse.
Aquatic Lands OutfallEasement (1/17)Page 23of 41Easement No. 51-077356
14.3Termination by Grantee.Grantee may terminate this Easement upon providing State
with sixty (60) days written notice of intent to terminate.
SECTION 15 NOTICEAND SUBMITTALS
15.1Notice. Following are the locations for delivery of notice and submittals required or
permitted under this Easement. Any Party may change the place of delivery upon ten (10) days
written notice to the other.
State:DEPARTMENT OF NATURAL RESOURCES
Shoreline District
950 Farman Avenue North
Enumclaw, WA 98022
Grantee:CITY OF BREMERTON
Public Works and Utilities; Wastewater Division
1600 Oyster Bay Avenue South
Bremerton, WA 98312
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery, notice is effective upon personal delivery, upon receipt of
a confirmation report if delivered by facsimile machine, or three (3) days after mailing. All
notices must identify the Easement number. On notices transmitted by facsimile machine, the
Parties shall state the number of pages contained in the notice, including the transmittal page, if
any.
15.2Contact Persons.On the Commencement Date, the following persons are designated
day-to-day contact persons. Any Party may change the Contact Person upon reasonable notice to
the other.
State:Kitsap County Aquatic Land Manager
360-825-1631
360-825-1672
Aquaticleasing.shoreline@dnr.wa.gov
Grantee:Patric Coxon; Wastewater Manager
360-473-5448
360-473-5455
Patric.Coxon@Ci.Bremerton.WA.US
SECTION 16 MISCELLANEOUS
16.1Authority.Grantee and the person or persons executing this Easement on behalf of
Grantee represent that Grantee is qualified to do business in the State of Washington, that
Aquatic Lands OutfallEasement (1/17)Page 24of 41Easement No. 51-077356
Grantee has full right and authority to enter into this Easement, and that each and every person
signing on behalf of Grantee is authorized to do so. Upon State’s request, Grantee shall provide
evidence satisfactory to State confirming these representations. This Easement is entered into by
State pursuant to the authority granted it in Chapter 43.12 RCW, Chapter 43.30 RCW, and Title
79 RCW and the Constitution of the State of Washington.
16.2Successors and Assigns. This Easement binds and inures to the benefit of the Parties,
their successors, and assigns.
16.3 Headings. The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
16.4Entire Agreement.This Easement, including the exhibits,attachments, and addenda, if
any, contains the entire agreement of the Parties. This Easement merges all prior and
contemporaneous agreements, promises, representations, and statements relating to this
transaction or to the Easement Property.
16.5 Waiver.
(a)The waiver of any breach or default of any term, covenant, or condition of this
Easement is not a waiver of such term, covenant, or condition; of any subsequent
breach or default of the same; or of any other term, covenant, or condition of this
Easement. State’s acceptance of payment is not a waiver of any preceding or
existing breach other than the failure to pay the particular payment that was
accepted.
(b)The renewal of the Easement, extension of the Easement, or the issuance of a new
Easement to Grantee, does not waive State’s ability to pursue any rights or
remedies under the Easement.
16.6Cumulative Remedies. The rights and remedies under this Easement are cumulative and
in addition to all other rights and remedies afforded by law or equity or otherwise.
16.7Time is of the Essence.TIME IS OF THE ESSENCE as to each and every provision of
this Easement.
16.8 Language. The word “Grantee” as used in this Easement applies to one or more persons,
as the case may be. The singular includes the plural, and the neuter includes the masculine and
feminine. If there is more than one Grantee, their obligations are joint and several. The word
“persons,” whenever used, includes individuals, firms, associations, and corporations. The word
“Parties” means State and Grantee in the collective. The word“Party” means either or both State
and Grantee, depending on context.
16.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Easement does
not affect, impair, or invalidate any other provision of this Easement.
16.10Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Any reference to a statute means that
Aquatic Lands OutfallEasement (1/17)Page 25of 41Easement No. 51-077356
statute as presently enacted or hereafter amended or superseded. Venue for any action arising
out of or in connection with this Easement is in the Superior Court for Thurston County,
Washington.
16.11Recordation.At Grantee’s expense and no later than thirty (30) days after receiving the
fully-executed Easement, Grantee shall record this Easementin the county in which the Property
is located. Grantee shall include the parcel number of the upland property used in conjunction
with the Easement Property, if any. Grantee shall provide State with recording information,
including the date of recordation and file number.
16.12Modification.No modification of this Easement is effective unless in writing and signed
by the Parties. Oral representations or statements do not bind either Party.
16.13Survival.Any obligations of Grantee not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantee until fully performed.
Aquatic Lands OutfallEasement (1/17)Page 26of 41Easement No. 51-077356
16.14Exhibitsand Attachments. All referenced exhibitsand attachmentsare incorporated in
this Easement unless expressly identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Dated: _____________________, 20__ __________________________________
By: KRISTIN SWENDDAL
Title: Acting Deputy Supervisor for Aquatics,
Geology and IT
Address: 950 Farman Avenue North
Enumclaw, WA 98022
CITY OF BREMERTON
Dated: _____________________, 20__ __________________________________
By: GREG WHEELER
Title:Mayor
TH
Address: 345 6Street – Suite 600
Bremerton, WA 98337
Phone: 360-473-5266
Approved as to form this
th
17th day of May 2018
Jennifer Clements, Assistant Attorney General
Aquatic Lands OutfallEasement (1/17)Page 27of 41Easement No. 51-077356
REVIEWED AND APPROVED BY FOR THE
CITY OF BREMERTON BY
Dated: _____________________, 20__ __________________________________
By:ROGER LUBOVICH
Title:City Attorney of City of Bremerton
Dated: _____________________, 20__ __________________________________
By:
Title:City Clerk for the City of Bremerton
Aquatic Lands OutfallEasement (1/17)Page 28of 41Easement No. 51-077356
REPRESENTATIVE ACKNOWLEDGMENT
STATE OFWASHINGTON)
) ss.
County of)
I certify that I know or have satisfactory evidence that GREG WHEELERis the person who
appeared before me, and said person acknowledged that hesigned this instrument, on oath stated
that hewas authorized to execute the instrument and acknowledged it as the Mayorof the City of
Bremertonto be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: _____________________, 20___________________________________
(Signature)
(Seal or stamp)
___________________________________
(Print Name)
Notary Public in and for the State of
Washington, residing at
___________________________________
My appointment expires _______________
Aquatic Lands OutfallEasement (1/17)Page 29of 41Easement No. 51-077356
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON)
) ss.
County of )
I certify that I know or have satisfactory evidence that KRISTIN SWENDDAL is the person who
appeared before me, and said person acknowledged that she signed this instrument, on oath
stated that she was authorized to execute the instrument and acknowledged it as the Acting
Deputy Supervisor for Aquatics, Geology and Information Technology of the Department of
Natural Resources of the State of Washington to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
Dated: _____________________, 20__ _________________________________
(Signature)
(Seal or stamp)
___________________________________
(Print Name)
Notary Public in and for the State of
Washington, residing at
___________________________________
My appointment expires _______________
Aquatic Lands OutfallEasement (1/17)Page 30of 41Easement No. 51-077356
EXHIBIT A
Agreement Number:51-077356
Legal descriptionof theEasementProperty:
As shown on that unrecorded surveyfor the City of Bremerton Sanitary Sewer Outfall,
DNR Application No. 51-077356,datedNovember 7, 2017, BySteven E. Ottmar, PLS,
of AES Consultants, Inc.On file atthe Washington State Department of Natural
ResourcesTitle and Records Officeunder DNRFILE 51-077356.
Square footage of each of these Use classifications:
Water-dependent___0.0
Nonwater-dependent5,145.0
Public Access___0.0
Total square feet5,145.0
Aquatic Lands OutfallEasement (1/17)Page 31of 41Easement No. 51-077356
PLAN OF OPERATIONS
EXHIBIT B
1.DESCRIPTION OF PERMITTED USE
A.Existing Facilities
The existing Bremerton EastWastewater Treatment Plant (EastPlant) was
commissioned on January 1, 2002 and discharges disinfected primarytreated
effluent off the easternshore of the Port Washington Narrows. The EastPlant
receives domestic sewage from residential and light commercial activities in the
city of Bremerton.
he treatment system consists of a High Rate Clarification (HRC) system that
T
provides advanced primary treatment. Treatment components include a 100,000-
gallon storage tank, a bar screen, a Parshall flume for influent flow measurement,
a Ballasted Sand High Rate Clarification (HRC) system, and an ultraviolet (UV)
light disinfection system.
The discharge outfall is approximately 470 feet long. The shoreward portion of
the East Plant outfall consists of a 223-foot, 20-inch diameter cast iron pipe
installed in 1947 in association with the former Mannette Treatment Plant.
Approximately 100 feet of the cast iron pipe occurs on State Owned Aquatic
Land. The terminal portion of the outfall consists of a 244-foot, 36-inch
reinforced concrete pipe (RCP) installed in 1972 and an 84-foot diffuser with 26,
5.75-inch ports. The existing outfall discharges at a depth of approximately -25
feet MLLW, and is buried between 2.5 feet and 7 feet to the point of discharge.
Approximately one and a half years after the City put the plant in operation, WA
State Department of Health (DOH), Shellfish Program, conducted a dye test to
determine the fate and transport of the effluent from the East Plant. The study
resulted in DOH conditionally opening previously closed shellfish beds in Dyes
Inlet.
The EastPlant operates infrequently for short durations a few times per year.
Operation always takes place under adverse weather conditions and with little
advanced notice. The plant has discharged peak hour flows in excess of 15 MGD.
The current NPDES permit expires in June 2018.
The most recent underwater inspection of the outfall was completed in April 2017
and found the existing reinforced concrete pipe to be in good condition. However,
inspections in 2008 and 2017 found that the existing diffuser ports were filled
with sediment and visual inspection of the portion of the cast iron pipe on the
uplands indicated that its capacity may be further reduced due to buildup of
corrosion byproducts.
Aquatic Lands OutfallEasement (1/17)Page 32of 41Easement No. 51-077356
B.Proposed Work.
Although the East Plant has a design capacity of 20 million gallons per day
(mgd), the small diameter of the cast iron pipe and the sedimentation of the
diffuser only allows a maximum discharge of 15 mgd. To improve flows Grantee
proposes todo the following Proposed Work:
Remove approximately 223 feet of theexisting 20-inch diameter cast iron
pipeand the associated anchor blocks.
o A shored trench will be excavated using excavatorson the beach
and barge based equipment.
o Excavation will commence 20-feet from the bulkhead
o A maximum of 1,720 cubic yards of material will be removed.
o Excavated material will be stored along the bulkhead or on a barge
for onsite reuse or offsite disposal.
Replace the 20-inch diameter cast iron pipe with a 36-inch diameter
reinforced concrete pipe.
Open trench to remove 104-feet of the 36-inch diameter reinforced
concrete pipe and diffuser.
Install a single port diffuser at the terminus with an elastometric diffuser
valve set at a 15 degree vertical bend. Secure the diffuser with up to four
helical anchors.
Backfill trenches with native material and large rock to grade.
All portions of the pipe and diffuser which are removedwill be disposed
of at an approved upland location. Any abandoned pipes which are
exposed during excavation will also be removed and disposed of at an
upland location.
No changes in discharge quantity, quality, or frequency are proposed.Grantee
anticipatescompleting the Proposed Workwithin the dry season(July-September
2018)to avoid service interruptions.Detailed plans and specifications for the
above-describedProposed Work,are shown in Attachment B-1to this Exhibit B.
State grants its consent to the Proposed Work as provided under Paragraph 7.3 of
the Lease. Granteeshall conform the Proposed Work to all requirements of this
Easement, including Section 7 and the additional obligations of this Exhibit B.
Grantee shall complete the Proposed Work by December 31, 2019. Within 30
days after completing the Proposed Work, Grantee shall send State a written
notice that states the date Grantee completed the Proposed Work.
Upon completion of the Proposed Work,thenew outfall will be about 104 feet
shorter than the existing outfall. As a result, thenew footprint ofGrantee’s
improvements will be smaller than the footprint of Grantee’s improvements on
the Commencement Date. State may reducethe square footage of the Easement
Aquatic Lands OutfallEasement (1/17)Page 33of 41Easement No. 51-077356
Property and require Grantee to revise the legal description of the Easement
Property to reflect the smaller footprint of the new outfall improvements.
C.Permits.Grantee has secured the following permits for the Proposed Work:
City of Bremerton,Mitigated Determination of Nonsignificance; BP16 00081;
Ecology SEPA #201700592 dated April 13, 2017
ity of Bremerton Exemption from shoreline Substantial Development Permit;
C
dated April 13, 2017
WA Department of Fish and Wildlife, Hydraulic Project Approval; Permit
Number 2018-6-32+01 dated January 23, 2018
WA Department of Ecology, Approval of Engineering Report;(NPDES Permit
No. WA0029289 dated March 15, 2018
USA Army Corps of Engineers, Nationwide Permit; Permit Number NWS-2017-
980 dated April 2, 2018
WA Department of Ecology, 401 Water Quality Certification and Coastal Zone
Management Act Consistency; #NWS-2017-980 dated April 12, 2018
2.LEGAL DESCRIPTION OF TEMPORARY CONSTRUCTION EASEMENT
That portion of the bedlands fronting Government Lot 4, Section 11,
Township 24 North, Range 1 East, W.M., Kitsap County, Washington,
being within a strip of land 600 feet in width, 300 feet on each of the
following described centerline:
ommencing at the northeast corner of Section 11; thenc
C
along the east line thereof 2651.91 feet to the east quarter corner of said
Low Tide and the Point of Beginning of this centerline; thence continuing
Terminus of this center line description, and from which the east quarter
rly
The side lines are to extend or end at the southerly limit line and line of
extreme low tide.
Easement Area = 400,460 square feet.
Aquatic Lands OutfallEasement (1/17)Page 34of 41Easement No. 51-077356
A diagram showing the temporary construction easement area is at Attachment B-2 to
this Exhibit B.
3.ADDITIONAL OBLIGATIONS
Except for the Proposed Work authorized in Section 1.B. of this Exhibit B, State has not
authorized Grantee to conduct any Work on the Property. Where Work will need to be conducted
to meet the Additional Obligations below, Granteeshall obtain State's prior written consent in
accordance with Section 7.3 of this Easement and obtain all necessary regulatory permits prior to
commencing such Work.
A.National Pollutant Discharge Elimination System (NPDES) permit
i.The NPDES Permit start date is June 2013 and requires renewal at least
every 5 years.
ii.Grantee shall notify State when they contact the Department of Ecology to
apply or renew a National Pollutant Discharge Elimination System
(NPDES) permit.
iii.Grantee shall notify State of any proposed changes/additions/deletions to
the NPDES permit and allow State a reasonable period to comment.
iv.Grantee shall submit to State a summary of all Outfall Evaluation Reports,
Sediment Sampling Reports, and Overflow bypass information generated
for compliance to the NPDES Outfall permit. The summary shall include
core findings and sufficient detail to locate the original documents in the
Department of Ecology records system.
B.Grantee shall not allow Barges and other vessels used during project activities to
ground at any time.
C.Grantee shall avoid operating or anchoring within known beds of submerged
aquatic vegetation.
D.G
rantee shall limit all excavation to the minimum footprint necessary to complete
the Proposed Work.
E.Grantee shall remove any derelict pipes or debris in the construction easement
which are exposed during excavation. All derelict pipes or debris shall be
disposed of at an upland location.
Aquatic Lands OutfallEasement (1/17)Page 35of 41Easement No. 51-077356
ATTACHMENT B-1
Aquatic Lands OutfallEasement (1/17)Page 36of 41Easement No. 51-077356
Aquatic Lands OutfallEasement (1/17)Page 37of 41Easement No. 51-077356
Aquatic Lands OutfallEasement (1/17)Page 38of 41Easement No. 51-077356
Aquatic Lands OutfallEasement (1/17)Page 39of 41Easement No. 51-077356
Aquatic Lands OutfallEasement (1/17)Page 40of 41Easement No. 51-077356
ATTACHMENT B-2
Aquatic Lands OutfallEasement (1/17)Page 41of 41Easement No. 51-077356
City of Bremerton
Sediment Sampling and
Analysis Plan Addendum:
Round II
Prepared for:
City of Bremerton
1600 Oyster Bay Ave. S
Bremerton, WA 98312
Prepared by:
Cosmopolitan Marine Engineering
PO Box 623
Gig Harbor, Washington 98335
October 2016
Exhibit CPage 1 of 35Easement No. 51-077356
CERTIFICATE OF ENGINEER
The technical material and data contained in this document were prepared under the supervision
and direction of the undersigned, whose seal as a professional engineer licensed to practice as
such, is affixed below.
Prepared by:
William P. Fox, PE
Cosmopolitan Marine Engineering
P.O. Box 623
Gig Harbor, Washington 98335
(253) 265-2958
City of Bremerton October 2016
SSAP Addendum: Round II
Exhibit CPage 2 of 35Easement No. 51-077356
TABLE OF CONTENTS
Page
SECTION 1: INTRODUCTION.................................................................................................4
1.1 Discussion......................................................................................................................4
1.1.1 2014 Sampling Plan................................................................................................4
1.1.2 Sediment Sampling and Report..............................................................................4
1.1.3 Sampling Report Conclusions.................................................................................5
1.1.4 Ecology Review....................................................................................................10
1.2 Purpose.........................................................................................................................11
1.3 Regulatory Guidance...................................................................................................12
SECTION 2: SAMPLING DESIGN.........................................................................................13
2.1 Project and Sampling Design.......................................................................................13
2.2 Sampling Schedule.......................................................................................................13
2.3 Proposed Sampling Locations......................................................................................13
2.3.1 Sand and Gravel Sites...........................................................................................13
2.3.2 West Plant Outfall.................................................................................................15
2.3.3 Supplementary Chemistry.....................................................................................17
2.3.4 Chemistry and Bioassay........................................................................................17
SECTION 3: FIELD SAMPLING METHODS.......................................................................21
3.1 Station Positioning.......................................................................................................21
3.2 Decontamination Procedures.......................................................................................21
3.3 Sample Collection and Compositing...........................................................................21
3.4 Field Documentation....................................................................................................22
3.5 Disposal of Contaminated Sediments..........................................................................23
SECTION 4: SAMPLE HANDLING PROCEDURES...........................................................24
4.1 Sample Containers and Labels.....................................................................................24
4.2 Chain of Custody Procedures.......................................................................................24
4.3 Sample Storage Requirements.....................................................................................24
4.3.1 Chemical Testing..................................................................................................24
4.3.2 Biological Testing.................................................................................................25
SECTION 5: LABORATORY ANALYTICAL METHODS.................................................26
5.1 Chemical Analysis.......................................................................................................26
5.2 Quality Control............................................................................................................26
5.3 Biological Testing........................................................................................................26
5.3.1 Acute Effects Test, Amphipod..............................................................................27
5.3.2 Acute Effects Test, Larval....................................................................................27
5.3.3 Chronic Effects Test.............................................................................................28
5.3.4 Quality Control.....................................................................................................29
SECTION 6: QUALITY ASSURANCE/QUALITY CONTROL..........................................30
6.1 Laboratory QA/QC......................................................................................................30
6.2 Data Quality Assurance Review..................................................................................30
City of Bremerton iOctober 2016
SSAP Addendum: Round II
Exhibit CPage 3 of 35Easement No. 51-077356
TABLE OF CONTENTS
Page
SECTION 7: DATA ANALYSIS, RECORD KEEPING, AND REPORTING....................31
7.1 Data Analysis...............................................................................................................31
7.1.1 Sediment Chemistry and Bioassay........................................................................31
7.1.2 Data Interpretation................................................................................................31
7.2 Record Keeping and Reporting....................................................................................32
SECTION 8: REFERENCES....................................................................................................33
LIST OF TABLES
Page
Table 1 Sample Results Exceeding SQS/LAET Criteria............................................................5
Table 2 Proposed Sampling Station Coordinates, Chemistry Only..........................................17
Table 3 Proposed Sampling Station Coordinates, Chemistry and Bioassay.............................17
LIST OF FIGURES
Page
Figure 1 Photo of Sediment Grab Sample at Station EP-3...........................................................7
Figure 2 Hjulstrom Diagram Demonstrating Non-Depositional Environment in Port
Washington Narrows Stations EP and 12-2 for Sand and Finer Grades........................7
Figure 3 Photo of Sediment Grab Sample at Station WP-4.........................................................8
Figure 4 Mercury Concentrations at West Plant Outfall Sediment Stations Compared to
USGS (2009) Sediment Mercury Data in Sinclair Inlet................................................9
Figure 5 Photos of Sediment Grab Samples with High Sand Content.......................................10
Figure 6 Ecology Comments Regarding Additional Sediment Sampling..................................12
Figure 7 2015 Bremerton Sediment Sampling Outfall Locations..............................................14
Figure 8 Location of PSNS Superfund Operable Units and Bremerton West Plant
Outfall..........................................................................................................................16
Figure 9 OF 6 Sampling Locations............................................................................................18
Figure 10 OF 12 Sampling Locations..........................................................................................19
Figure 11 OF 13 Sampling Locations..........................................................................................20
Figure 12 Decision Tree for Selecting Appropriate Amphipod Species for
Marine/Estuarine Toxicity Tests..................................................................................27
LIST OF APPENDICES
Appendix A: 2015 Sediment Sampling Laboratory Results
City of Bremerton iiOctober 2016
SSAP Addendum: Round II
Exhibit CPage 4 of 35Easement No. 51-077356
LIST OF APPENDICES
Appendix B: Tables 8-1 and 8-2 from Ecology’s Sediment Cleanup User’s Manual II
Appendix C: Proposed Laboratory Analytes and Methods
Appendix D: Tables 4-6 and 4-7 from Ecology’s Sediment Cleanup User’s Manual II
Appendix E: Tables 5-3 – 5-5 from Ecology’s Sediment Cleanup User’s Manual II
LIST OF ACRONYMS
CSO Combined Sewer Outfall
DGPS Differential Global Positioning System
EIMEnvironmental Information Management
MDL Method Detection Limit
NPDES National Pollutant Discharge Elimination System
PQL Practical Quantitation Limit
PSEP Puget Sound Estuary Program
RI/FS Remedial Investigation/Feasibility Study
SCUM II Sediment Cleanup Users Manual II
SMS Sediment Management Standards
SQS Sediment Quality Standards
SSAP Sediment Sampling and Analysis Plan
TOC Total Organic Carbon
WAC Washington Administrative Code
City of Bremerton iiiOctober 2016
SSAP Addendum: Round II
Exhibit CPage 5 of 35Easement No. 51-077356
SECTION 1:INTRODUCTION
1.1DISCUSSION
Ecology issued NPDES Permit No. WA0029289 to the City of Bremerton on June 21, 2013.
Condition S10 of the permit requires the City to conduct sediment monitoring at the treatment
plants and selected Combined Sewer Outfall (CSO) outfall locations. This monitoring is required
in order to determine compliance with the SMS for both untreated CSO and treated East and
West Plant discharges. The report documenting this monitoring is due February 1, 2018.
1.1.12014 Sampling Plan
A Sediment Sampling and Analysis Plan (SSAP) was submitted in October 2014 and was
approved in November 2014. The approved SSAP established sediment monitoring of the areas
surrounding three CSO outfalls (OF-6, OF-7, and OF-13) and both treatment plant outfalls (West
and East Plant). An addendum to the SSAP proposed additional sampling at a fourth CSO outfall
discharge location (OF-12), which was incorporated into the sampling schedule in summer 2015.
Three sampling stations were established at each of the CSO outfall sites, and five sampling
stations were established at each of the treatment plant outfalls, for a total of 22 sample sites. The
SSAP additionally recommended a tiered testing approach, wherein samples would be tested for
sediment chemistry only. If any samples exceeded Sediment Quality Standards (SQS) criteria, a
second round of sampling would be triggered for confirmatory chemistry and bioassay testing.
1.1.2Sediment Sampling and Report
Sediment sample collection was performed as described in the SSAP in July and August 2015.
Samples were collected over two two-day periods, at intertidal or shallow subtidal stations at low
tide on July 29 and 30 and at high slack at deeper stations from a sampling vessel on August 17
and 18. The stations sampled during these two sampling efforts were selected according to their
accessibility at either high or low tide. The intertidal or shallow subtidal stations sampled in July
were: OF6-1–3, 12-1, 12-3, and 13-1–3. The deeper stations sampled in August were: WP-1–5,
EP-1–5, OF7-1–3, and 12-2. The samples were analyzed for the 47 SQS chemicals,
conventionals, and dioxins and furans. The full lab results packets are included in Appendix A.
Total volatile solids, though included in the SSAP for stations WP-1–5 per Ecology comments,
City of Bremerton 4October 2016
SSAP Addendum: Round II
Exhibit CPage 6 of 35Easement No. 51-077356
were inadvertently omitted from the sediment chemistry. This omission will be addressed in the
second round of sampling to be conducted.
A draft Sediment Monitoring Study Report documenting the results of the sediment sampling was
submitted to Ecology in January 2016. Data results were uploaded to Ecology’s Environmental
Information Management (EIM) Database under the study name BREMSED2015. The report
was not approved by Ecology due to errors in the results tables and references to older versions
of guidance documents. However, the bulk of the report’s conclusions are unaffected by these
errors and are summarized below. Corrected results tables are included in Appendix A.
1.1.3 Sampling Report Conclusions
The sediment sampling stations and chemistry results can be split up into three distinct
categories, which are discussed below.
Table 1 Sample Results Exceeding SQS/LAET Criteria
Sand Stations
Parameter SQSSIZMax
13-1 13-2 6-2
N ON-I ONIZABLE O RGANIC C OMPOUNDS (mg/kg, organic carbon)
Dilution Factor101010
TOC0.710.572.00
Chlorinated Benzenes
1,2-Dichlorobenzene2.3 2.33.44.2
1,4-Dichlorobenzene3.193.54.4
1,2,4-Trichlorobenzene 0.81 1.8 3.74.61.3
Hexachlorobenzene0.38 2.34.65.81.7
Phthalate Esters
Butyl benzyl phthalate 4.9 64 5.26.5
Bis\[2-ethylhexyl\]phthalate 47 78 150
Miscellaneous
Hexachlorobutadiene3.9 6.24.25.3
I ONIZABLE O RGANIC C OMPOUNDS (µg/kg, dry weight)
2,4-Dimethylphenol29 29636363
Benzoic acid 650 650 960960960
City of Bremerton 5October 2016
SSAP Addendum: Round II
Exhibit CPage 7 of 35Easement No. 51-077356
Table 1 Sample Results Exceeding SQS/LAET Criteria
Sand Stations
Parameter SQSSIZMax
6-16-312-112-313-3
N ON-I ONIZABLE O RGANIC C OMPOUNDS (mg/kg, organic carbon)
Dilution Factor 5 5 10 10 5
TOC 0.24 0.23 0.33 0.41 0.22
Chlorinated Benzenes
Hexachlorobenzene22 703333
Miscellaneous
Hexachlorobutadiene11 120 1515303015
N-nitrosodiphenylamine 28 403232
I ONIZABLE O RGANIC C OMPOUNDS (µg/kg, dry weight)
2,4-Dimethylphenol29 29 6363323232
Benzoic acid 650 650 960 960
Mud Stations
Parameter SQSSIZMax
WP-1WP-2WP-3WP-4WP-5
Dilution Factor 1 varies varies 1 1
TOC 4.49 8.43 3.87 5.57 3.85
M ETALS(mg/kg, dry weight)
Mercury0.41 0.59 0.784 0.882 1.04 1.04 0.742
Phthalate Esters
(2)(1)
Butyl benzyl phthalate 63 900 4500140
(3)(2)
Bis\[2-ethylhexyl\]phthalate 1300 1900 85001800
Miscellaneous
(1)(1)
Total PCBs 130 1000 180310
(1)
Dilution factor of 1
(2)
Dilution factor of 5
(3)
Dilution factor of 10
Gravel Stations
All of the East Plant sediment stations (EP-1, EP-2, EP-3, EP-4 and EP-5) and the offshore
station at OF-12 (12-2) consisted of over 90 percent gravel content. A photo of the most
successful grab sample at Station EP-3 is shown below in Figure 1.
City of Bremerton 6October 2016
SSAP Addendum: Round II
Exhibit CPage 8 of 35Easement No. 51-077356
Figure 1 Photo of Sediment Grab Sample at Station EP-3
The EP stations and the offshore 12-2 station are located in very swift tidal currents, with
average daily maximum current speeds exceeding 1.1 meter/second (NOAA Tidal Current
Predictions, Port Washington Narrows). As shown in the Hjulstrom Diagram in Figure 2 below,
the maximum current speed and observed grain size (pebbles) are wholly consistent.
Figure 2 Hjulstrom Diagram Demonstrating Non-Depositional Environment in Port
Washington Narrows Stations EP and 12-2 for Sand and Finer Grades
City of Bremerton 7October 2016
SSAP Addendum: Round II
Exhibit CPage 9 of 35Easement No. 51-077356
It is not feasible to sample chemistry for the stations consisting predominantly of gravel. These
sites are clearly not depositional environments, and therefore no further sediment sampling
should be required at these locations.
Mud Stations
All of the West Plant sediment sampling stations consisted predominantly of fine-grained
particles (though WP-3 alone had some fine sand), and would commonly be categorized as
typical bay mud. Total organic carbon content of 4-8% and total sulfides exceeding 500 mg/kg
are consistent with this characterization. A typical photo of a WP sediment sample is shown in
Figure 3.
Per Table 1, the West Plant sediment samples met all SQS/LAET criteria with the exception of
mercury and, in the case of WP-2 and 3, two phthalates and total PCBs.
Phthalates and PCBs are not typically associated with WWTP discharges. However, they are
commonly associated with stormwater or CSO discharges, which have occurred in the vicinity of
the West Plant Outfall. Additional investigation may be required to confirm the high phthalate
and PCB concentrations at WP-2 and 3 and assess potential sources.
Figure 3 Photo of Sediment Grab Sample at Station WP-4
City of Bremerton 8October 2016
SSAP Addendum: Round II
Exhibit CPage 10 of 35Easement No. 51-077356
Figure 4 shows the range of mercury concentrations observed at the five West Plant Outfall
stations with other sediment data in Sinclair Inlet provided in a 2009 USGS investigation of
mercury concentrations in Sinclair Inlet. The observed mercury concentrations are in the middle
of the range of other sediment stations in Sinclair Inlet. Remediation of the sediments in Sinclair
Inlet, including those around the West Plant Outfall, will come from the remedial
investigation/feasibility study (RI/FS) being conducted by USGS.
Figure 4 Mercury Concentrations at West Plant Outfall Sediment Stations Compared to
USGS (2009) Sediment Mercury Data in Sinclair Inlet
Sand Stations
The remaining stations (OF-6, OF-7, OF-13, and OF-12) were all predominantly sand or sand
and gravel. All of these stations had percent fines below 10 percent. Typical photos of sediment
samples are shown in Figure 5.
City of Bremerton 9October 2016
SSAP Addendum: Round II
Exhibit CPage 11 of 35Easement No. 51-077356
Station 6-1 Station 12-3
Figure 5 Photos of Sediment Grab Samples with High Sand Content
These stations all had very low concentrations of sulfides, ammonia and TOC compared to mud
samples, and typically no odor. The TOC of all but three of these stations (OF13-1, 13-2, 6-2)
fell below the 0.5 percent threshold for carbon normalization, and are thus compared to LAET
dry weight criteria.
The only detected compound at any sand station that exceeded SQS or LAET criteria was bis\[2-
ethylhexyl\]phthalate at Station 6-2. Station 6-2 is located straight offshore of the CSO Outfall
OF-6 and a municipal storm drain. Station 6-2 also had the highest TOC of all sand stations at
2.0 percent, approximately three times higher than the next highest sand station, suggesting there
is some organic input from the CSO and/or stormwater outfalls.
The only quality issue with the laboratory analysis was the aforementioned elevated reporting
limits for the sand stations. As a result, there are a number of non-detected compounds at sand
stations where the detection level exceeded SQS or LAET criteria, shown in blue type in Table 1.
Although there is no reason to suspect that any of the sand stations would exceed criteria,
Ecology may require resampling at all or some of these stations. Measures to reduce the
detection levels by eliminating laboratory dilutions should be investigated and coordinated
between the analytical laboratory and Ecology laboratory experts.
1.1.4Ecology Review
A letter from Ecology dated March 29, 2016 regarding the sediment study report contains
comments which fall broadly under a few categories:
City of Bremerton 10October 2016
SSAP Addendum: Round II
Exhibit CPage 12 of 35Easement No. 51-077356
References to old or outdated guidance, analytical methods, and criteria. These
references have been corrected in the updated results table and the following
SSAP, and will be updated in the final data report due in 2018.
Errors and inconsistencies in data result reporting, such as incorrect station
coordinates, comparison to SQS instead of LAETs for stations with high
concentrations of organic carbon, and differing units between some results and
criteria. These errors have been corrected in the following SSAP, in the updated
results tables in Appendix A, and in the final data report.
Various formatting requirements for the results tables. These comments have also
been addressed in the updated results tables in Appendix A.
Omission of various components of the data report, including a reference to the
EIM study ID, a comparison of study results with historical sediment conditions,
further discussion of lab quality control, and various figures. These omissions will
be addressed in the final data report due in 2018.
Requirements for further chemical and bioassay analyses. The rest of this
document will address these requirements.
1.2PURPOSE
This Round II SSAP is intended to address the two bullet points at the top of page 5 of the March
29, 2016 Ecology letter (Figure 6). These comments pertain to the additional sampling that must
be performed due to chemical exceedances at several sampling stations.
City of Bremerton 11October 2016
SSAP Addendum: Round II
Exhibit CPage 13 of 35Easement No. 51-077356
Figure 6 Ecology Comments Regarding Additional Sediment Sampling
The rest of this document comprises an addendum to the 2014 SSAP for round two of sediment
sampling. Its purpose is to:
Establish additional sampling to be conducted for confirmatory chemical and bioassay
testing, per Ecology comments
Update the 2014 SSAP according to current guidance and sampling and analysis methods
1.3REGULATORY GUIDANCE
Washington State has enacted sediment management standards (SMS) to “reduce and ultimately
eliminate adverse effects in biological resources and significant health threats to humans from
surface sediment contamination…” (WAC 173-204-320(2)). The SMS include chemical
concentration and biological effects criteria, known as the sediment quality standards (SQS).
These criteria are available in Tables 8-1 and 8-2 of the 2015 Department of Ecology (Ecology)
document entitled Sediment Cleanup Users Manual II, or SCUM II. Copies of the SQS are
included in Appendix B.
City of Bremerton 12October 2016
SSAP Addendum: Round II
Exhibit CPage 14 of 35Easement No. 51-077356
SECTION 2:SAMPLING DESIGN
2.1PROJECT AND SAMPLING DESIGN
Chemical analytes for this sediment study will include the 47 SQS chemicals and conventional
sediment variables listed in Appendix C. The previous SSAP recommended using a tiered testing
approach wherein biological assay testing (also known as bioassay or toxicity testing) would
only be conducted if a sample exceeds one of the chemical SQS. Sediments will be collected for
biological analysis at select sampling sites which failed chemical tests, and will follow the
procedures described herein.
2.2SAMPLING SCHEDULE
Subject to DNR and Ecology approval of this SSAP Addendum, the sediment sampling
described in herein will be conducted in Summer 2017. Prior to sampling, the sampling
personnel will coordinate with the marine vessel contractor to check all provided sampling gear
and confirm an appropriate sampling date. Laboratories will also be contacted to arrange delivery
of the necessary sampling containers and schedule lab analyses of the samples.
2.3PROPOSED SAMPLING LOCATIONS
The 2014 SSAP proposed sampling at four CSO outfall locations and both treatment plant outfall
locations (Figure 7). Three stations were proposed at each CSO outfall location, and five at each
treatment plant outfall location, for a total of 22 sample stations. 16 of these sites were sampled
for sediment chemistry and conventional parameters during the 2015 sampling study.
2.3.1Sand and Gravel Sites
Six of the sampling sites (EP-1–5, OF12-2) are in very high current speed locations and consist
exclusively of coarse sand and gravel. These sites yielded very low amounts of sediment, and
were analyzed for grain size only (with the exception of site EP-2, which was abandoned after
eleven unsuccessful sampler casts). This SSAP Addendum proposes no further sampling at these
sites, as they are clearly not depositional sites (see discussion in Section 1.1.3). This SSAP
Addendum also proposes no additional sampling at OF7, as none of those samples exceeded
chemical SQS and consisted largely of sand-sized particles.
City of Bremerton 13October 2016
SSAP Addendum: Round II
Exhibit CPage 15 of 35Easement No. 51-077356
OF 7A & B
Sampling Outfall Locations
Figure 7:2015 Bremerton Sediment
OF 13
East Plant
OF 6
West Plant
Exhibit CPage 16 of 35Easement No. 51-077356
2.3.2West Plant Outfall
All five of the West Plant outfall sediment stations exceeded SQS for mercury. Two of the West
Plant stations also had exceedances of phthalate SQSs. Under the SMS, these stations should
include biological testing. However, this SSAP does not include biological sampling at these
stations for the following reasons:
The West Plant outfall is located within Operable Unit B of the Puget Sound Naval
Shipyard Superfund Site (see Figure 8). The Record of Decision (USEPA, 2000) has
established remedial action for sediments that include the West Plant outfall site.
Mercury found in the sediments near the West Plant outfall is attributed to historic naval
shipyard activities, and is not associated with the West Plant discharge. As was shown in
Figure 4, the mercury concentrations observed at Stations WP-1 through WP-5 are all
within the range of mercury concentrations elsewhere in Operable Unit B of the
Superfund site.
Sediment investigations prior to and subsequent to the Record of Decision have already
included biological sampling near the West Plant outfall. All remedial activities and
decisions within the Superfund Site, including biological sampling, should be conducted
under the CERCLA umbrella and the ENVVEST project.
City of Bremerton 15October 2016
SSAP Addendum: Round II
Exhibit CPage 17 of 35Easement No. 51-077356
Source: USGS, 2009
Superfund Operable Units and Bremerton West Plant Outfall
Figure 8:Location of PSNS
West PlantOutfall
Exhibit CPage 18 of 35Easement No. 51-077356
2.3.3Supplementary Chemistry
Three stations are proposed for supplementary chemistry resampling, one at each CSO outfall
site where detection levels exceeded SQS criteria. Parameters at these sites were all undetected,
and exceedances were due to elevated MDLs resulting from sample dilutions. This SSAP
proposes these sites only be retested for sediment chemistry and conventional parameters, with
efforts made with the laboratory to ensure MDLs are below SMS criteria.
Sediment characteristics were sufficiently similar at the sample sites for each CSO outfall
location, and chemistry results were comparable; therefore only one sample is proposed for each
CSO outfall location instead of three. The sites proposed for resampling are OF6-1, 12-1, and 13-
2 (Figures 9-11).
Table 2 Proposed Sampling Station Coordinates, Chemistry Only
StationN 47° W 122° Depth (ft)
35.15’38.777’1
OF6-1
OF12-134.703’38.273’2
34.644’37.812’0
OF13-2
2.3.4Chemistry and Bioassay
Station OF6-2 had detected parameters at concentrations exceeding SMS criteria. Therefore,
Station OF6-2 will be sampled for chemistry and bioassay testing (Figure 9). Reference
sediments for this station must also be collected for the bioassay analysis. The reference site will
be chosen based on sediment characteristics at OF6-2 and Ecology guidance.
Table 3 Proposed Sampling Station Coordinates, Chemistry and Bioassay
StationN 47° W 122° Depth (ft)
35.14’38.77’3
OF6-2
City of Bremerton 17October 2016
SSAP Addendum: Round II
Exhibit CPage 19 of 35Easement No. 51-077356
Figure 9:OF 6 Sampling Stations
OF6-3
Chemistry OnlyChemistry and Bioassay
OF6-2
OF6-1
Exhibit CPage 20 of 35Easement No. 51-077356
OF 12-2
OF 12-1OF 12-3
Figure OF 12 Sampling Locations
Chemistry Only
10:
Chemistry and Bioassay
Exhibit CPage 21 of 35Easement No. 51-077356
OF13-3
Figure 11:OF 13 Sampling Stations
OF13-2
OF13-1
Chemistry OnlyChemistry and Bioassay
Exhibit CPage 22 of 35Easement No. 51-077356
SECTION 3:FIELD SAMPLING METHODS
3.1STATION POSITIONING
The stations for sediment sampling will be located in the field and documented using WAAS
differential global positioning system (DGPS) technology. Station locations will be reported in
latitude and longitude. Water depth will also be recorded at the time of sampling.
3.2DECONTAMINATION PROCEDURES
The field sampling equipment, including the sampler and any stainless steel bowls and spoons
used for compositing samples, will be decontaminated in the laboratory using the following
procedure, per SCUM II recommendations:
Scrub equipment with phosphate free detergent such as Alconox®
Rinse with hot tap water or clean site water
Air dry equipment
Wrap equipment in plastic wrap
In the field the equipment will be cleaned of all adhering sediment with site water. In addition,
sediment will be removed from the sampler by collecting the sample without contacting any
surfaces of the sampling device to minimize the risk of contamination.
3.3SAMPLE COLLECTION AND COMPOSITING
Sediment samples will be collected with a surface sediment sampler, either a van Veen or Ponar
grab sampler, deployed from a research vessel with a power winch. Only the top 10 cm of any
collected sample will be extracted from the sampler. Water will be carefully removed with a
turkey baster to minimize loss of fines. Sediment samples will be inspected to meet acceptance
criteria such as, the sampler is not overfilled, presence of overlying water, and depth of
penetration into the sediment surface. Samples that do not satisfy the acceptance criteria will be
rejected.
City of Bremerton 21October 2016
SSAP Addendum: Round II
Exhibit CPage 23 of 35Easement No. 51-077356
Based on prior sampling conducted in 2015, very low productivity in sampling is anticipated at
some stations. Multiple casts are expected to be needed to obtain the required sample volume,
and many casts will be discarded. Therefore, multiple casts will be made as close to the original
cast as possible to collect the required volume of sediment for all the laboratory analyses.
Sediment from multiple casts at a single station will be homogenized using a decontaminated
stainless steel bowl and stainless steel spoon prior to placing the sample in the appropriate
laboratory testing container. Minimum sediment sample sizes required for the analytical tests are
listed in Table 4-6 (copy provided in Appendix D) of SCUM II.
If multiple casts are required, samples for the total sulfides and volatile organic compounds tests
will be obtained directly from the sampler and placed in the appropriate laboratory container
prior to homogenizing and sub-sampling sediment for the other analyses. These sample jars
should have no headspace.
3.4FIELD DOCUMENTATION
A field notebook will document all field sampling activities, including:
General information, such as field personnel, start and end time, weather conditions, and
other miscellaneous observations
Decontamination procedures for field sampling equipment, collection method, sample
depth, number of casts, water depth to sediment surface, time and date of sample
collection, sample identification name, and sampler name
Station coordinates for each sampler cast
General observations of sample makeup, including odor, color, and texture, and obvious
signs of contamination
Type and quantity of material (woody debris, rocks, shells, etc) removed from a sample
grab before homogenization
Each set of samples will be documented and transported to the analytical laboratory using the
Laboratory Analytical Request and Chain of Custody forms.
City of Bremerton 22October 2016
SSAP Addendum: Round II
Exhibit CPage 24 of 35Easement No. 51-077356
3.5DISPOSAL OF CONTAMINATED SEDIMENTS
SCUM II notes that it is standard practice in most sediment studies to return excess sediments to
the water near the sampling station if they show no obvious signs of contamination. However, if
there is reason to believe that there is sufficient contamination to render this practice unsafe,
excess sediment should be retained on board and safely disposed of on shore.
City of Bremerton 23October 2016
SSAP Addendum: Round II
Exhibit CPage 25 of 35Easement No. 51-077356
SECTION 4:SAMPLE HANDLING PROCEDURES
4.1SAMPLE CONTAINERS AND LABELS
The testing laboratory will provide the appropriate sample containers. The containers will have
been cleaned and prepared by the laboratory according to the methods described in the PSEP
protocols. The laboratory will provide any necessary preservatives according to the testing
requirements.
Each sample container will have a self-adhesive label, also provided by the testing laboratory.
The following information will be recorded on the label at the time of sample collection: project
name, sample station number, sampler name, date and time, laboratory test procedure, and
preservative, if required.
4.2CHAIN OF CUSTODY PROCEDURES
A Laboratory Analytical Request and Chain of Custody form will be completed at the time of
sampling. One copy of the form will be placed in a waterproof bag and attached to the inside of
the cooler. This form will identify each sample by its individual identification number and the
date and time collected, and will also identify the analyses requested for each sample. One copy
will also be retained by the project manager. The cooler will be sealed and kept in a secure
location until delivery to the laboratory.
4.3SAMPLE STORAGE REQUIREMENTS
4.3.1Chemical Testing
Samples to be delivered to the laboratory will be kept on ice at 4°C until they are shipped, and
will be delivered within 24 hours of shipping. Samples not scheduled for the initial analysis will
be archived and stored at the laboratory in a secure area. Storage requirements for the archived
chemistry samples will include freezing and storage of the samples at -18°C, with the exception
of samples to be analyzed for grain size, ammonia, total sulfides, and volatile organic
compounds. Sample preservation techniques and maximum holding time for each laboratory
analysis is shown in SCUM II Table 4-7 (Appendix D).
City of Bremerton 24October 2016
SSAP Addendum: Round II
Exhibit CPage 26 of 35Easement No. 51-077356
4.3.2Biological Testing
Samples will be transported to the toxicology lab on ice at 4°C. SCUM II states that once at the
laboratory, samples should be stored in the dark at 4°C and should not be frozen, and all analyses
should be conducted within two weeks of sampling. The laboratory will report holding times and
conditions along with the results of the testing.
City of Bremerton 25October 2016
SSAP Addendum: Round II
Exhibit CPage 27 of 35Easement No. 51-077356
SECTION 5:LABORATORY ANALYTICAL METHODS
5.1CHEMICAL ANALYSIS
All analytical methods will follow the standard testing protocols outlined in SCUM II. An
Ecology-accredited laboratory will analyze all sediment samples for the 47 SQS chemicals and
conventional sediment variables. The table in Appendix C lists all the analytes to be monitored
as well as the associated SQS criteria, recommended sample preparation, cleanup, and analytical
methods. The most recent update of the EPA analytical methods shall be used. SCUM II Table
D-1, listing target Practical Quantitation Limits (PQLs) and Method Detection Limits (MDLs), is
also included in Appendix C.
5.2QUALITY CONTROL
The sampler will coordinate with the testing laboratory to take all practical measures to achieve
lab MDLs that meet the PQLs and the SQS chemical criteria listed in Appendix C (WAC-173-
204-320\[2\]\[a\]). The laboratory will provide written documentation of the procedures and results
undertaken to achieve the recommended detection limits.
Total organic carbon (TOC) levels will be analyzed before completing organic chemical
analyses. This method is done to avoid MDL exceedances of the SQS when the data is organic
carbon normalized.
5.3BIOLOGICAL TESTING
SCUM II requires that a reference sediment sample be collected from one of three approved
reference stations (in Samish Bay, Holmes Harbor, or Carr Inlet) for bioassay comparisons (PTI,
1991). Reference sediments for the bioassay testing are utilized to compare the response of the
test to sediments that are known to be unimpacted by chemical contamination. Bioassays will be
run with reference sediment that is matched to the test sediment grain size using tables of
reference sites furnished by Ecology. SCUM II requires that three bioassay tests be completed
for each site exceeding the chemical SQS. Two of the tests are acute effects tests, using both an
amphipod and a larval species. The third test is a chronic effects test using either juvenile
polychaete or Microtox® 100 percent porewater extract.
City of Bremerton 26October 2016
SSAP Addendum: Round II
Exhibit CPage 28 of 35Easement No. 51-077356
5.3.1Acute Effects Test, Amphipod
The amphipod test is a 10-day acute sediment toxicity test. Choices of amphipod species are
Rhepoxynius abronius,Ampelisca abdita, or Eohaustorius estuaries. SCUM II provides guidance
on selecting the appropriate amphipod species for the acute effects test based upon interstitial
salinity and the percentage of sediment fines, as indicated by the decision tree in Figure 12. The
test compares the mortality rates of the selected amphipod species exposed to the test and control
sediments at the end of ten days. The test additionally notes the daily emergence and number of
amphipods failing to rebury at the end of testing.
Interstitial Salinity
Interstitial Salinity
25 ppt?
25 ppt?
yesno
Sediment FinesSediment FinesSediment FinesSediment Fines
Sediment FinesSediment FinesSediment Fines
Sediment Fines
< 60 percent?< 60 percent?60 percent?60 percent?
< 60 percent?< 60 percent?60 percent?60 percent?
yesnoyesno
Rhepoxynius abroniusAmpelisca abditaEohaustorius estuarius
Rhepoxynius abroniusAmpelisca abditaEohaustorius estuarius
Figure 12 Decision Tree for Selecting Appropriate Amphipod
Species for Marine/Estuarine Toxicity Tests
5.3.2Acute Effects Test, Larval
For the larval acute effects test, adults must be collected in spawning conditions or induced to
spawn in the laboratory. As a result, the season in which the analysis takes place often dictates
the choice of species for this test. Potential species are:
Crassostrea gigas (Pacific oyster) – Summer
Mytilus galloprovincialis (Blue mussel) – Late Spring through early Summer
Strongylocentrotus purpuratus (Purple sea urchin) – December through April
Strongylocentrotus droebachiensis (Green sea urchin)
City of Bremerton 27October 2016
SSAP Addendum: Round II
Exhibit CPage 29 of 35Easement No. 51-077356
Dendraster excentricus (Sand dollar) – April through October
The larval bioassay is a test of the selected organism’s mortality and abnormality rates after
exposure to the test sediments. The test is run until the appropriate stage of development is
achieved in the seawater control. Ten milliliters aliquots are then taken from each of the five
replicates for each sample and preserved in 5 percent buffered solution. The larvae are counted to
determine the number of larvae and the number failing to develop a complete shell. This data is
used to calculate the percent abnormality, percent mortality, and percent combined abnormality
and mortality.
5.3.3Chronic Effects Test
This SSAP recommends the selection of the Microtox® 100 percent porewater extract test for
the chronic effects test. An alternative to this test is a 20-day sublethal toxicity test using the
juvenile polychaete Neanthes sp. This plan does not recommend the benthic macroinvertebrate
community analysis due to the increased expense and time required to collect and prepare the
samples.
The Microtox® test is “a rapid method of assessing toxicity in marine and freshwater sediment
by using the bioluminescent properties of the marine bacteria Vibrio fischeri. The bacteria are
exposed to field sediment and the light emitted by the bacteria is used to assess the overall
biological condition of the bacteria by comparing to a control. The difference in luminescence is
an indication of relative toxicity.” (Ecology, 2015) To analyze the sediment quality, 500ml of
sediment is first extracted in order to collect approximately 50 ml of pore water from both the
reference and test sediment. This pore water is then adjusted for the proper pH, salinity, and
dissolved oxygen concentrations. The freeze-dried bacterial suspension is reconstituted and
allowed to equilibrate before adding to the test, reference, and control sample. After 15 minutes,
the samples luminesce and are measured. The test assumes that the light emitted by the bacteria
can be used to make a correlation of the overall biological health of the bacteria exposed to
chemical compounds and mixtures. Statistical comparisons are made between the reference and
test sediment data. The final analysis includes the testing environment, testing conditions, and
positive and negative controls.
City of Bremerton 28October 2016
SSAP Addendum: Round II
Exhibit CPage 30 of 35Easement No. 51-077356
If the juvenile polychaete test is selected, the polychaete species Neanthes sp. is used in a 20-day
test comparing the growth rates of organisms exposed to the test and reference sediments.
5.3.4Quality Control
Each bioassay analysis must be conducted using both positive (toxic) and negative controls. A
reference toxicant such as cadmium chloride, silver chloride, phenol, or sodium lauryl sulfate is
used to establish the relative sensitivity/mortalities of the test organisms.
Negative controls are used to measure laboratory performance for the bioassay analyses. Clean
reference sediments are expected to produce low mortalities and are used as a negative control
for the amphipod and polychaete tests. The negative control for Microtox is distilled or deionized
water. If the larval bioassay test is used, seawater will be used as a negative control rather than
sediment.
For the marine toxicity tests, there are control limits on the water quality in order to ensure the
survival of the organisms and to avoid any stress on the organisms that is not test-related. Daily
measurements of the water temperature, salinity, dissolved oxygen, and pH must be taken for the
acute effects tests and sulfide and ammonia measurements must be taken at the beginning and
end of the test. These same measurements are made every three days if Neanthes bioassays are
completed. For Microtox, SCUM II requires a pH between 7.9 < pH < 8.2, and monitoring of the
temperature, salinity, and dissolved oxygen.
City of Bremerton 29October 2016
SSAP Addendum: Round II
Exhibit CPage 31 of 35Easement No. 51-077356
SECTION 6:QUALITY ASSURANCE/QUALITY CONTROL
6.1LABORATORY QA/QC
The chemical samples will be analyzed at an analytical laboratory that is accredited by the State
of Washington Department of Ecology. The analytical laboratory will follow quality control
requirements for the selected analytical methods using the quality control procedures outlined in
SCUM II and PSEP protocols for each type of test. The laboratory analyst is responsible for
identifying analytical problems and taking corrective actions, and should communicate any
problems with the project manager. Quality control procedures for organic analyses are listed in
SCUM II Table 5-3, and for metals and conventionals analyses in Tables 5-4 and 5-5,
respectively. All procedures are outlined in greater detail in their corresponding chapters in the
PSEP protocols, which can be found online at:
https://fortress.wa.gov/ecy/publications/documents/1509046.pdf
Tables 5-3–5-5 are included in Appendix E.
6.2DATA QUALITY ASSURANCE REVIEW
After testing has been completed, the project quality assurance manager will review the field
documentation and laboratory data packet, including:
Compliance with the planning document
Proper sample collection and handling procedures
Holding times within those outlined in protocols
Completeness and acceptability of data
Review of data qualifiers/flags based on laboratory quality control tests
The quality assurance review will follow guidance provided in PTI (1989a), and will be
documented in the final report.
City of Bremerton 30October 2016
SSAP Addendum: Round II
Exhibit CPage 32 of 35Easement No. 51-077356
SECTION 7:DATA ANALYSIS, RECORD KEEPING, AND REPORTING
7.1DATA ANALYSIS
7.1.1Sediment Chemistry and Bioassay
Sediment chemistry will be tabulated in a spreadsheet with the conventional values at the top of
the table for easy reference. Separate tables will be prepared for dry-weight and TOC-normalized
concentrations. If the TOC is below 0.5 percent and the analyte has a non-detect concentration
with the MDL below the dry weight criteria, the analyte will be in compliance with the numeric
standard. The tabulated data will also include the sample station identification number, date of
sample collection, sediment sampling depth interval, and the SMS criteria.
All test, reference, negative control and positive control data for the bioassay testing will be
included in the final report. Positive control data will also be submitted showing the last 12
months of positive control data or the last 15 control tests, whichever is greater.
Results of the chemical and bioassay testing will be analyzed using the MyEIM tool, which can
be found online at:
http://www.ecy.wa.gov/eim/myEIM.htm
Chemical/bioassay analysis results obtained using the MyEIM tool will be cross-checked, and
any unexpected differences will be noted and explained in the Data Report.
7.1.2Data Interpretation
The final report will compare test results to the relevant chemical or biological effects identified
in the SMS. Results will also be compared to the sediment quality established by previous
monitoring at the sample sites to determine the impact the discharge has had on the surrounding
sediments.
City of Bremerton 31October 2016
SSAP Addendum: Round II
Exhibit CPage 33 of 35Easement No. 51-077356
7.2RECORD KEEPING AND REPORTING
All sediment sampling and testing records will be maintained in a project file for no less than 10
years in accordance with the requirements of Section 610 of the SMS. The records will be
provided upon request, or made available at reasonable times for inspection, to authorized
personnel.
The results of the sediment sampling and analysis will be presented in a report for submittal to
Ecology that follows the guidance in Section A.7 of the SCUM II. The report will include
graphics for sampling stations, sample collection methods and coordinates, sample receiving,
compositing, shipping and archiving, and quality assurance and quality control for the sample
collection and analysis. Results will be compared to the SQS criteria.
Hard copy data reports will be given to Ecology. The sediment data will also be provided
electronically in Ecology’s EIM template format for inclusion in the EIM database. That data
will be entered into the required EIM data entry templates to ensure for proper and error-free
formatting prior to submittal to Ecology. Any data exceeding the SQS criteria levels will be
highlighted in the data tables using bold text.
City of Bremerton 32October 2016
SSAP Addendum: Round II
Exhibit CPage 34 of 35Easement No. 51-077356
SECTION 8:REFERENCES
PTI Environmental Services. 1989a. Data quality evaluation for proposed dredged material
disposal projects. Prepared for Washington Department of Ecology, Sediment
Management Unit.
PTI Environmental Services. 1991. Reference Area Performance Standards for Puget Sound.
EPA Contract 68-D8-0085.
Puget Sound Estuary Program. 1997. Recommended Guidelines for Sampling Marine Sediment,
Water Column, and Tissue in Puget Sound.
U.S. Environmental Protection Agency (EPA), 2000. EPA Superfund Record of Decision – Puget
Sound Naval Shipyard Complex, Bremerton, Washington.
United States Geological Survey (USGS), 2009. Mercury in Sediment, Water and Biota of
Sinclair Inlet, Puget Sound, Washington, 1989-2007. Open-File Report 2009-1285.
http://pubs.usgs.gov/of/2009/1285/.
Washington Administrative Code 173-204. Sediment Management Standards.
Washington State Department of Ecology. 2015. Sediment Cleanup Users Manual II. Ecology
Publication No. 12-09-057.
City of Bremerton 33October 2016
SSAP Addendum: Round II
Exhibit CPage 35 of 35Easement No. 51-077356
AGENDA BILL
CITY OF BREMERTON
A7
CITY COUNCIL
SUBJECT: Purchase of a replacement Ford Study Session Date: July 11, 2018
Police Interceptor from Columbia Ford of
COUNCIL MEETING Date: July 18, 2018
Longview, WA; and authorize Budget
Department: PW&U / ERR
Amendment to Fund 510
Presenter: Milenka Hawkins-Bates
Phone: (360) 473-5333
SUMMARY: The request before Council is to a replace a totaled 2015 Ford Police Interceptor Utility
Patrol Vehicle (04/13/18). This quote is for one Police Interceptor. We will be utilizing State Contract
No. 05916. The total cost for the vehicle is $37,680.09 including Washington State sales tax.
Funds for the replacement vehicle will come from ERR Fund 510 and Private Insurance Settlement.
ATTACHMENTS: 1) Quote from Columbia Ford
FISCAL IMPACTS (Include Budgeted Amount): Funds for the replacement vehicle will come from
Fund 510 and Private Insurance Settlement.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to approve the purchase of one Ford Interceptor per quote in the amount of $37,680.09
including Washington State sales tax from Columbia Ford of Longview WA and authorize an increase
in Fund 510 expenditure budget of $37,680.09.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
AGENDA BILL
CITY OF BREMERTON
A8
CITY COUNCIL
SUBJECT: Public Works Trust Fund Loan Study Session Date: July 11, 2018
Funding Agreement for the Ostrich Creek
COUNCIL MEETING Date: July 18, 2018
Culvert Improvements Project
Department: PW & Utilities
Presenter: Chal Martin
Phone: (360) 473-5758
SUMMARY: Loan agreement for the use of Public Works Trust Funds for the Ostrich Creek Culvert
Improvements project. The funds will be managed and distributed by the State Department of
Commerce. The Ostrich Creek Culvert project will replace existing undersized culverts at Price Road,
Kitsap Way, and Brentwood Road with fish passable culverts and provide stream rehabilitation at the
culvert locations.
ATTACHMENTS: 1. Proposed Agreement Updated
2. Vicinity Maps
FISCAL IMPACTS (Include Budgeted Amount): The project is funded by a Public Works Trust
Fund Loan in the amount of $4,687,968. The loan term is 20 years with an interest rate of 1.66%
and will be paid with stormwater utility funds.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to authorize the Public Works Trust Fund Loan for the Ostrich Creek Culvert Improvements
and authorize the Mayor to finalize and execute the funding agreement with Commerce with
substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
CONTRACT FACE SHEET
Contract Number: PC18-96103-004
PUBLIC WORKS BOARD
CONSTRUCTION LOAN CONTRACT
1. Contractor 2. Contractor Doing Business As (optional)
N/A
City of Bremerton
th
345 6 St, STE 100
Bremerton, WA 98337
3. Contractor Representative 4. Public Works Board Representative
N/AN/A
5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End
Date Date
$4,687,968.00 Contract Execution June 1, 2038
Federal: State: Other:
Date
N/A:
9. Federal Funds (as applicable) Federal Agency CFDA Number
N/AN/A N/A
10. Tax ID # 11. SWV # 12. UBI # 13. DUNS #
N/A181-002-539
SWV0000221-00
14. Contract Purpose
Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction,
replacement, rehabilitation, or improvement of streets, roads, bridges, drinking water systems, stormwater
systems, sanitary sewage systems, or solid waste facilities, including recycling facilities.
The Board, defined as the Washington State Public Works Board and Contractor acknowledge and accept the
terms of this Contract and attachments and have executed this Contract on the date below to start as of the
date and year last written below. The rights and obligations of both parties to this Contract are governed by
this Contract and the following other documents incorporated by reference: Contract Terms and Conditions
including Declarations Page; and Attachment I:
FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD
Signature Scott Hutsell, Public Works Board Chair
Print Name Date
APPROVED AS TO FORM ONLY
Title
May 02, 2018
Date
Signature on file
Sandra Adix
Assistant Attorney General
2
DECLARATIONS
CLIENT INFORMATION
Legal Name:
City of Bremerton
Loan Number:
PC18-96103-004
PROJECT INFORMATION
Project Title:
Ostrich Creek Culvert Improvements
Project City:
Bremerton
Project State:
Washington
Project Zip Code:
98337
LOAN INFORMATION
$4,687,968.00
Loan Amount:
$4,687,968.00
Total Estimated Cost:
Total Estimated Funding: $4,687,968.00
Loan Term: 20
Interest Rate: 1.66%
st
Payment Month: June 1
Loan Reimbursement Start Date: September 1, 2016
Time of Performance 60 months from Execution Date of this Contract to Project
Completion.
SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT
N/A
LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT
This loan is a revenue obligation of the CONTRACTOR payable solely from the net revenue of the Stormwater/Sanitary
Sewer system. Payments shall be made from the net revenue of the utility after the payment of the principal and interest
on any revenue bonds, notes, warrants or other obligations of the utility having a lien on that net revenue. As used here,
he BOARD grants the
CONTRACTOR the right to issue future bonds and notes that constitute a lien and charge on net revenue superior to the
lien and charge of this loan agreement.
SCOPE OF WORK
Replace three existing undersized culverts at: Brentwood Drive, Kitsap Way, and Price Road along Ostrich Creek to
benefit fish habitat recovery and stormwater facility replacement.
The project costs may include but are not limited to engineering, cultural and historical resources, environmental
documentation, review, permits, public involvement, easements, bid documents and construction. The project needs to
meet all applicable Local, State, and/or Federal standards.
3
TABLE OF CONTENTS
CONTRACT TERMS AND CONDITIONS ................................................................................. 1
Part 1. SPECIAL TERMS AND CONDITIONS ........................................................................ 1
1.1 Definitions .............................................................................................................................1
1.2 Authority ................................................................................................................................1
1.3 Purpose .................................................................................................................................1
1.4 Order of Precedence ............................................................................................................1
1.5 5- year deferral for start-up systems ..................................................................................2
1.6 Competitive Bidding Requirements ...................................................................................2
1.7 Default in Repayment ...........................................................................................................2
1.8 Investment Grade Audit .......................................................................................................2
1.9 Sub-Contractor Data Collection ..........................................................................................2
1.10 Eligible Project Costs ...........................................................................................................2
1.11 Historical and Cultural Resources ......................................................................................3
1.12 Performance Incentives .......................................................................................................3
1.13 Project Completion Amendment and Certified Project Completion Report ...................4
1.14 Project Signs .........................................................................................................................4
1.15 Rate and Term of Loan .........................................................................................................5
1.16 Recapture ..............................................................................................................................5
1.17 Reimbursement Procedures and Payment ........................................................................5
1.18 Repayment ............................................................................................................................6
1.19 Reports ..................................................................................................................................7
1.20 Termination for Cause .........................................................................................................7
1.21 Termination for Convenience ..............................................................................................7
1.22 Time of Performance ............................................................................................................7
1.23 Contract Suspension ...........................................................................................................8
1.24 Special Conditions ...............................................................................................................8
1.25 Loan Security ........................................................................................................................8
Part 2. GENERAL TERMS AND CONDITIONS ...................................................................... 9
2.1 DEFINITIONS ..........................................................................................................................9
2.2 Allowable Costs .....................................................................................................................9
2.3 ALL WRITINGS CONTAINED HEREIN .................................................................................9
2.4 AMENDMENTS .......................................................................................................................9
2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also
.....................................................................................9
2.6 APPROVAL .............................................................................................................................9
2.7 ASSIGNMENT ...................................................................................................................... 10
............................................................................................................ 10
2.9 AUDIT ................................................................................................................................... 10
2.10 CODE REQUIREMENTS .................................................................................................... 11
2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION ............................................. 11
2.12 CONFORMANCE ................................................................................................................ 11
2.13 COPYRIGHT PROVISIONS ................................................................................................ 11
2.14 DISALLOWED COSTS ....................................................................................................... 12
2.15 DISPUTES ........................................................................................................................... 12
2.16 DUPLICATE PAYMENT ..................................................................................................... 12
2.17 ETHICS/CONFLICTS OF INTEREST ................................................................................. 12
2.18 GOVERNING LAW AND VENUE ....................................................................................... 13
2.19 INDEMNIFICATION ............................................................................................................ 13
2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR ...................................................... 13
2.21 INDUSTRIAL INSURANCE COVERAGE ........................................................................... 13
2.22 LAWS .................................................................................................................................. 13
2.23 LICENSING, ACCREDITATION AND REGISTRATION .................................................... 14
2.24 LIMITATION OF AUTHORITY ............................................................................................ 14
2.25 Local Public Transportation Coordination ..................................................................... 14
2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ............................................... 14
2.27 PAY EQUITY ....................................................................................................................... 14
2.28 POLITICAL ACTIVITIES ..................................................................................................... 15
2.29 PREVAILING WAGE LAW ................................................................................................. 15
2.30 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION .............................. 15
2.31 PUBLICITY .......................................................................................................................... 15
2.32 RECAPTURE ...................................................................................................................... 15
2.33 RECORDS MAINTENANCE ............................................................................................... 16
2.34 REGISTRATION WITH DEPARTMENT OF REVENUE .................................................... 16
2.35 RIGHT OF INSPECTION .................................................................................................... 16
2.36 SAVINGS ............................................................................................................................ 16
2.37 SEVERABILITY .................................................................................................................. 16
2.38 SUBCONTRACTING .......................................................................................................... 16
2.39 SURVIVAL .......................................................................................................................... 17
2.40 TAXES ................................................................................................................................. 17
2.41 TERMINATION FOR CAUSE / SUSPENSION................................................................... 17
2.42 TERMINATION FOR CONVENIENCE ............................................................................... 17
2.43 TERMINATION PROCEDURES ......................................................................................... 17
2.44 WAIVER .............................................................................................................................. 18
Part 3. .................................................. 18
CONTRACT TERMS AND CONDITIONS
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
Part 1. SPECIAL TERMS AND CONDITIONS
1.1 Definitions
As used throughout this Construction Loan Contract the following terms shall have the meaning set forth
below:
A.
B. local government identified on the Contract Face Sheet performing
service(s) under this Contract and who is a Party to the Contract, and shall include all employees and
agents of the Contractor.
C.
Washington (RCW) 43.155.030, and who is a Party to the Contract.
D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions as stated
on the Declarations Page of this Loan Contract, displayed within the contract in THIS STYLE for easier
identification.
1.2 Authority
Acting under the authority of Chapter 43.155 RCW, the Board has awarded the Contractor a Public Works
Board construction loan for an approved public works project.
1.3 Purpose
The Board and the Contractor have entered into this Contract to undertake a local public works project that
furthers the goals and objectives of the Washington State Public Works Program. The project will be
undertaken by the Contractor and will include the activities described in the SCOPE OF WORK shown on
the Declarations page. The project must be undertaken in accordance with the loan terms and conditions,
and all applicable federal, state and local laws and ordinances, which by this reference are incorporated into
this Contract as though set forth fully herein.
1.4 Order of Precedence
In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence
in the following order:
A. Applicable federal and state of Washington statutes and regulations.
B. Special Terms and Conditions including attachments.
C. General Terms and Conditions.
1
1.5 5- year deferral for start-up systems
If the project financed by this contract is to develop a system to deliver previously unavailable services, and
revenue from those services is to repay the loan, the new system is eligible for a deferral of loan payments
for sixty (60) months after the Contract execution date. The Contractor may provide a written request to the
Board requesting a 5-year deferral for an eligible system. The Board may approve the deferral request.
Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is due June
1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of the 7th year of the
loan term.
1.6 Competitive Bidding Requirements
The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding
requirements for projects assisted in whole or in part with money from the Public Works Program.
1.7 Default in Repayment
Loan repayments shall be made on the loan in accordance with Section 1.18 of this Contract. A payment
not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall
be assessed a monthly penalty beginning on the first (1st) day past the due date. The penalty will be
assessed on the entire payment amount. The penalty will be one percent (1%) per month or twelve percent
(12%) per annum. The same penalty terms shall apply at project completion if the repayment of loan funds
in excess of eligible costs are not repaid at the time of the Project Completion Amendment is submitted, as
provided for in Section 1.13.
annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of such
delinquency.
The Contractor shall be responsible for all legal fees incurred by the Board in any action undertaken to
enforce its rights under this section.
1.8 Investment Grade Audit
For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other public
works facility for which an investment grade audit is obtainable, Contractor must undertake an investment
grade audit.
Costs incurred as part of the investment grade audit are eligible project costs.
1.9 Sub-Contractor Data Collection
Contractor will submit reports, in a form and format to be provided by Commerce and at intervals as agreed
by the parties, regarding work under this Contract performed by sub-contractors and the portion of the
Contract funds expended for work performed by sub-contractors, including but not necessarily limited to
minority-owned, women-owned, and veteran-owned business sub-contracto-
mean sub-contractors of any tier.
1.10 Eligible Project Costs
The Eligible project costs must consist of expenditures eligible under Washington Administrative Code
(WAC) 399-30-030 and be related only to project activities described in declared SCOPE OF WORK.
2
Eligible costs for reimbursement shall be construed to mean expenditures incurred and paid, or incurred
and payable within thirty (30) days of the reimbursement request. Only costs that have been incurred on or
after LOAN REIMBURSEMENT START DATE shown in the Declarations are eligible for reimbursement
under this Contract. Eligible costs will be paid according to an approved budget up to the maximum amount
stated on the Contract Award or Amendment Face Sheet.
The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for projects
assisted with Public Works Board loans.
These terms supersede the terms in Section 2.2. Allowable Costs.
1.11 Historical and Cultural Resources
Prior to commencing construction, Contractor shall complete the requirements of
Order 05-05, or, as an alternative to -05, Contractor shall
complete Section 106 of the National Historic Preservation Act, as applicable. Contractor agrees that the
Contractor is legally and financially responsible for compliance with all laws, regulations, and agreements
related to the preservation of historical or cultural resources and agrees to hold harmless the Board and the
State of Washington in relation to any claim related to such historical or cultural resources discovered,
disturbed, or damaged as a result of the project funded by this Contract.
In addition to the requirements set forth in this Contract, Contractor shall, in a
Executive Order 05-05, coordinate with the Washington State Department of Archaeology and Historic
Preservation (DAHP), including any recommended consultation with any affected tribe(s), during project
design and prior to construction to determine the existence of any tribal cultural resources affected by the
proposed project funded by this Contract. Contractor agrees to avoid, minimize, or mitigate impacts to
cultural resource as a continuing pre-requisite to receipt of funds under this Contract.
The Contractor agrees that, unless the Contractor is proceeding under an approved historical and cultural
monitoring plan or other memorandum of agreement, if historical or cultural resources are discovered during
construction, the Contractor shall immediately stop work and notify the local historical preservation officer
and the state's historic preservation officer at DAHP. If human remains are uncovered, the Contractor shall
report the presence and location of the remains to the coroner and local enforcement immediately, then
The Contractor shall require this provision to be contained in all sub-contracts for work or services related to
the declared SCOPE OF WORK.
In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW 27.44.040
regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW
68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and, WAC 25-48 regarding
Archaeological Excavation and Removal Permits.
Completion of the Section 106 of the National Historic Preservation Act shall substitute for completion of
-05.
In the event that the Contractor finds it necessary to amend SCOPE OF WORK, the Contractor may be
required to re--05 or Section 106 of the National Historic
Preservation Act.
1.12 Performance Incentives
The Contractor shall complete the project no later than sixty (60) months after the date of contract
execution.
3
Should the Contractor complete the project within forty-eight (48) months of the date of contract execution,
the Contractor may choose one of the two following incentives upon project completion:
Option A: The repayment period will be increased by twenty-four (24) months, not to exceed the life
of the asset, OR:
Option B: The interest rate will be decreased by one-quarter of one percent (0.25%).
Should the Contractor complete the project within thirty-six (36) months of the date of contract execution,
the Contractor may choose one of the following two incentives upon project completion:
Option C: The repayment period will be increased by sixty (60) months, not to exceed the life of the
asset, OR;
Option D: The interest rate will be decreased by up to one-half of one percent (0.50%).
Once an option is selected, the Contract shall be modified to note the appropriate change and no further
adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of the performance
incentive chosen, at no point in time shall the minimum loan interest rate be less than 0.25%.
The calculation of interest rate and term adjustments will apply to the remaining payments beginning from
the date the Project Completion report is certified.
1.13 Project Completion Amendment and Certified Project Completion Report
The Contractor shall complete a Certified Project Completion Report when all activities identified in the
SCOPE OF WORK are complete. The Board will supply the Contractor with the Certified Project Completion
Report form, which shall include:
A. A certified statement that the project, as described in the declared SCOPE OF WORK, is complete and,
if applicable, meets required standards.
B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the
project as described in the SCOPE OF WORK.
C. Certification that all costs associated with the project have been incurred and have been accounted for.
Costs are incurred when goods and services are received and/or contract work is performed.
D. A final voucher for the remaining eligible funds.
E. Pictures of Completed Project.
The Contractor will submit the Certified Project Completion Report together with the last Invoice Voucher for
a sum not to exceed the balance of the loan amount. The final Invoice Voucher payment shall not occur
prior to the completion of all project activities identified in the SCOPE OF WORK and the Board's receipt
and acceptance of the Certified Project Completion Report.
The Project Completion Amendment shall serve as an amendment to this Contract determining the final
loan amount, local share, term, and interest rate.
1.14 Project Signs
If the Contractor displays, during the period covered by this Contract, signs or markers identifying those
agencies participating financially in the approved project, the sign or marker must identify the Washington
State Public Works Board as a participant in the project.
4
1.15 Rate and Term of Loan
The Board shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the Contract Face
Sheet and declared on the Contract Declarations Page. The interest rate shall be the declared INTEREST
RATE per annum on the outstanding principal balance. The length of the loan shall not exceed the declared
LOAN TERM in years, with the final payment due by the CONTRACT END DATE as shown on the Contract
Face Sheet.
1.16 Recapture
The right of recapture under Section 2.32. Recapture, shall exist for a period not to exceed six (6) years
following contract termination. In the event that the Board is required to institute legal proceedings to
enforce the recapture provision, the Board shall be entitled to its costs thereof, including atto
1.17 Reimbursement Procedures and Payment
If funding or appropriation is not available at the time the invoice is submitted, or when this contract is
executed, the issuance of warrants will be delayed or suspended until such time as funds or appropriation
become available. Therefore, subject to the availability of funds, warrants shall be issued to the Contractor
for reimbursement of allowable expenses incurred by the Contractor while undertaking and administering
approved project activities in accordance with the declared SCOPE OF WORK.
The Board shall reimburse the Contractor for eligible project expenditures up to the maximum loan amount
under this contract, as identified in Section 1.10. When requesting reimbursement for costs incurred, the
Contractor shall submit a signed and completed Invoice Voucher (Form A19), referencing the SCOPE OF
WORK project activity performed, and any appropriate documentation such as bills, invoices, and receipts.
The Invoice Voucher must be certified by an official of the Contractor with authority to bind the Contractor.
Requests for reimbursements for costs related to construction activities will not be accepted until the
Contractor provides:
Proof of c-05 or Section 106 of the National Historic
Preservation Act, as described in Section 1.11, and
Signed Public Works Board Notice of Contract Award and Notice to Proceed, which follows the
formal award of a construction contract.
The Contractor shall submit all Invoice Vouchers and all required documentation to:
Public Works Board
Attn: (Program Specialist)
PO Box 42525
Olympia, WA 98504-2525
The Board will pay the Contractor upon acceptance of the work performed and receipt of properly
completed invoices. Invoices shall be submitted to the Board not more often than monthly.
Payment shall be considered timely if made by the Board within thirty (30) calendar days after receipt of
properly completed invoices. Payment shall be sent to the address designated by the Contractor.
The Board may, at its sole discretion, terminate the contract or withhold payments claimed by the
Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of
this contract.
5
No payments in advance or in anticipation of services or supplies to be provided under this contract shall be
made by the Board.
Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by another
source for an eligible project cost, then the Contractor shall not be reimbursed by the Board for that cost.
Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its
own organization or that of its subcontractors.
In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At the time of
project completion, the Contractor shall submit to the Board a Project Completion Amendment certifying the
total actual project costs and local share. The final Public Works loan disbursement shall bring the total
loan to the lesser of 100% of the eligible project costs or the total declared LOAN AMOUNT. The Project
Completion Amendment shall serve as an amendment to this Contract determining the final loan amount,
local share, and interest rate.
In the event that the final costs identified in the Project Completion Amendment indicate that the Contractor
has received Public Works Board monies in excess of 100.00% of eligible costs, all funds in excess of
100.00% shall be repaid to the Public Works Board by payment to the Department of Commerce, or its
successor, together with the submission of the Project Completion Amendment.
1.18 Repayment
Loan repayment installments are due on the day and month identified under the term: PAYMENT MONTH
on the Declarations Page. Payments are due each year during the term of the loan beginning one year
from the date of contract execution. Interest only will be charged for this payment if a warrant is issued prior
to this date. All subsequent payments shall consist of principal and accrued interest due on the specified
PAYMENT MONTH date of each year during the remaining term of the loan.
Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum based on
a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest will begin to accrue
from the date each warrant is issued to the Contractor. The final payment shall be on or before the
CONTRACT END DATE shown on the Declarations page, of an amount sufficient to bring the loan balance
to zero.
In the event that the Board approves the Contractor's request for a deferral as outlined in Section 1.5, then
the first loan repayment is due sixty (60) months after contract execution. Interest accrues for the sixty (60)
months after contract execution. The accrued interest only will be charged for this payment if a warrant is
issued prior to this date. Interest and principal payments are due on the declared PAYMENT MONTH date
of each year during the remaining term of the loan. The Contractor has the right to repay the unpaid
balance of the loan in full at any time or make accelerated payments without penalty.
The Contractor will repay the loan in accordance with the preceding conditions through the use of a check,
money order, or equivalent means made payable to the Washington State Department of Commerce, or its
successor.
6
1.19 Reports
The Contractor shall furnish the Board with:
A. Project Status Reports with each Invoice Voucher;
B. Project Quarterly Reports (if no funds have been reimbursed in the quarter) and/or Quarterly
Expenditures Report;
C. Certified Project Completion Report at project completion (as described in Section 1.13);
D. Pictures of various stages of the project, and
E. Other reports as the Board may require.
1.20 Termination for Cause
If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds only for
those activities identified in the SCOPE OF WORK, the Board may terminate the Contract in whole or in part
at any time. The Board shall notify the Contractor in writing of its determination to terminate, the reason for
such termination, and the effective date of the termination. Nothing in this section shall affect the
Contractor's obligation to repay the unpaid balance of the loan.
These terms supersede the terms in Section 2.41 Termination for Cause/Suspension.
1.21 Termination for Convenience
The Board may terminate this contract in the event that state funds are no longer available to the Board, or
are not appropriated for the purpose of meeting the ontract. Termination will
be effective when the Board sends written notice of termination to the Contractor. Nothing in this section
shall affect
These terms supersede the terms in Section 2.42 Termination for Convenience.
1.22 Time of Performance
No later than sixty (60) months after the date of contract execution the Contractor must reach project
completion.
Failure to meet Time of Performance shall constitute default of this contract. In the event of extenuating
circumstances, the Contractor may request, in writing, that the Board extend the deadline for project
completion. The Board may extend the deadline.
The term of this contract shall be for the entire term of the loan, regardless of actual project completion,
unless terminated sooner as provided herein.
1.23 Contract Suspension
In the event that the Washington State Legislature fails to pass and the Governor does not authorize a
Capital Budget by June 30 of each biennium, the Washington State Constitution Article 8 and RCW
43.88.130 and RCW 43.88.290 prohibit expenditures or commitments of state funds in the absence of
appropriation.
In such event, all work will be suspended effective July 1. The Contractor shall immediately suspend work
and take all reasonable steps necessary to minimize the cost of performance directly attributable to such
suspension until the suspension is cancelled.
7
THE BOARD shall notify the Contractor immediately upon lifting of the contract suspension.
1.24 Special Conditions
If SPECIAL CONDITIONS are listed on the Contract Declarations Page then these conditions are herein
incorporated as part of the terms and requirements of this contract.
1.25 Loan Security
Loan Security payments shall be made as stated on the attached Declarations Page, and identified therein
as LOAN SECURITY.
8
Part 2. GENERAL TERMS AND CONDITIONS
2.1 DEFINITIONS
As used throughout this Contract, the following terms shall have the meaning set forth below:
A.
B. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this
Contract, and shall include all employees and agents of the Contractor.
C.
Washington (RCW) 43.155.030, and which is a Party to the Contract
D.
of governmental services or other activities, addresses, telephone numbers, social security
numbers, driver license numbers, other identifying numbers, and any financial identifiers.
E.
F. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or
part of those services under this Contract under a separate contract with the Contractor. The terms
2.2 Allowable Costs
Costs allowable under this Contract are actual expenditures according to an approved budget up to the
maximum amount stated on the Contract Award or Amendment Face Sheet.
2.3 ALL WRITINGS CONTAINED HEREIN
This Contract contains all the terms and conditions agreed upon by the parties. No other understandings,
oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the
parties hereto.
2.4 AMENDMENTS
This Contract may be amended by mutual agreement of the parties. Such amendments shall not be binding
unless they are in writing and signed by personnel authorized to bind each of the parties.
2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as
The Contractor must comply with the ADA, which provides comprehensive civil rights protection to
individuals with disabilities in the areas of employment, public accommodations, state and local government
services, and telecommunications.
2.6 APPROVAL
This
be binding until so approved. The contract may be altered, amended, or waived only by a written
amendment executed by both parties.
9
2.7 ASSIGNMENT
Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the
Contractor without prior written consent of the Board.
Unless expressly permitted under another provision of the Contract, in the event of litigation or other action
2.9 AUDIT
A. General Requirements
Contractors are to procure audit services based on the following guidelines.
The Contractor shall maintain its records and accounts so as to facilitate the audit requirement and
shall ensure that Subcontractors also maintain auditable records.
The Contractor is responsible for any audit exceptions incurred by its own organization or that of its
Subcontractors.
The Board reserves the right to recover from the Contractor all disallowed costs resulting from the audit.
Responses to any unresolved management findings and disallowed or questioned costs shall be
included with the audit rep
corrective action concerning audit issues within thirty (30) days of the date of request.
B. State Funds Requirements
In the event an audit is required, if the Contractor is a local government entity, the Office of the State
Auditor shall conduct the audit. Audits of non-profit organizations are to be conducted by a certified
public accountant selected by the Contractor.
The Contractor shall include the above audit requirements in any subcontracts.
C. Documentation Requirements
The Contractor must send a copy of any required audit no later than nine (9) months after the end of the
l year(s) to:
Department of Commerce
ATTN: Audit Review and Resolution Office
PO Box 42525
Olympia WA 98504-2525
In addition to sending a copy of the audit, when applicable, the Contractor must include:
Corrective action plan for audit findings within three (3) months of the audit being received by the
Board.
Copy of the Management Letter.
If the Contractor is required to obtain a Single Audit in accordance with 2 CFR Part 200, a copy must be
provided to Commerce; no other report is required.
10
2.10 CODE REQUIREMENTS
All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and
federal building, mechanical, plumbing, fire, energy and barrier-free codes. Compliance with the Americans
with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building
Department.
2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION
A.
1. All material provided to the Contractor by the B
2.
3. All personal information in the possession of the Contractor that may not be disclosed under state or
fed
name, health, finances, education, business, use of government services, addresses, telephone
er identifying numbers, and
1996 (HIPAA).
B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or
disclosure of Confidential Information. The Contractor shall use Confidential Information solely for the
purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information
to any third party except with the prior written consent of the Board or as may be required by law. The
Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to
prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of
any state or federal laws related thereto. Upon request, the Contractor shall provide the Board with its
policies and procedures on confidentiality. The Board may require changes to such policies and
procedures as they apply to this Contract whenever the Board reasonably determines that changes are
necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time
period specified by the Board. Upon request, the Contractor shall immediately return to the Board any
Confidential Information that the Board reasonably determines has not been adequately protected by
the Contractor against unauthorized disclosure.
C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of
any unauthorized use or disclosure of any confidential information, and shall take necessary steps to
mitigate the harmful effects of such use or disclosure.
2.12 CONFORMANCE
If any provision of this contract violates any statute or rule of law of the state of Washington, it is considered
modified to conform to that statute or rule of law.
2.13 COPYRIGHT PROVISIONS
Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire"
as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the
Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials,
including all intellectual property rights, moral rights, and rights of publicity to the Board effective from the
moment of creation of such Materials.
ted to, data, reports, documents,
pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or
these rights.
11
For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced
under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty-free, irrevocable
license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare
derivative works, publicly perform, and publicly display. The Contractor warrants and represents that the
Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of
publicity, necessary to grant such a license to the Board.
The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materials
furnished under this Contract, of all known or potential invasions of privacy contained therein and of any
portion of such document which was not produced in the performance of this Contract. The Contractor shall
provide the Board with prompt written notice of each notice or claim of infringement received by the
Contractor with respect to any Materials delivered under this Contract. The Board shall have the right to
modify or remove any restrictive markings placed upon the Materials by the Contractor.
2.14 DISALLOWED COSTS
The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization
or that of its Subcontractors.
2.15 DISPUTES
Except as otherwise provided in this Contract, when a dispute arises between the parties and it cannot be
resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who
may designate a neutral person to decide the dispute.
The request for a dispute hearing must:
be in writing;
state the disputed issues;
state the relative positions of the parties;
state the Contractor's name, address, and Contract number; and
working days after the parties agree that they cannot resolve the dispute.
The respondent shall
designee and the requestor within five (5) working days.
The Chair or designee shall review the written statements and reply in writing to both parties within ten (10)
working days. The Chair or designee may extend this period if necessary by notifying the parties.
The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding.
The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal.
dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above.
2.16 DUPLICATE PAYMENT
The Contractor certifies that work to be performed under this contract does not duplicate any work to be
charged against any other contract, subcontract, or other source.
2.17 ETHICS/CONFLICTS OF INTEREST
In performing under this Contract, the Contractor shall assure compliance with the Ethics in Public Service
Act (Chapter 42.52 RCW) and any other applicable state or federal law related to ethics or conflicts of
interest.
12
2.18 GOVERNING LAW AND VENUE
This Contract shall be construed and interpreted in accordance with the laws of the state of Washington,
and the venue of any action brought hereunder shall be in the Superior Court for Thurston County.
2.19 INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of
Washington, the Board, all other agencies of the state and all officers, agents and employees of the state,
from and against all claims or damages for injuries to persons or property or death arising out of or incident
any Subcontractor or its agents, employees, or representatives.
alleged concurrent negligence of the state or its agents, agencies, employees and officers.
Subcontracts shall include a comprehensive indemnification clause holding harmless the Contractor, the
Board, the state of Washington, its officers, employees and authorized agents.
The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and
hold harmless the state and its agencies, officers, agents or employees.
2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR
The parties intend that an independent contractor relationship will be created by this Contract. The
Contractor and its employees or agents performing under this Contract are not employees or agents of the
state of Washington or the Board. The Contractor will not hold itself out as or claim to be an officer or
employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any
claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and
control of the work will be solely with the Contractor.
2.21 INDUSTRIAL INSURANCE COVERAGE
The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the
Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of
its employees as may be required by law, the Board may collect from the Contractor the full amount
payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the
Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract,
and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance
2.22 LAWS
The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of local
and state and federal governments, as now or hereafter amended including, but not limited to:
Washington State Laws and Regulations
A. Affirmative Action, RCW 41.06.020 (11).
B. Boards of Directors or Officers of Non-profit Corporations Liability - Limitations, RCW 4.24.264.
C. Disclosure-Campaign Finances-Lobbying, Chapter 42.17 RCW.
D. Discrimination-Human Rights Commission, Chapter 49.60 RCW.
E. Ethics in Public Service, Chapter 42.52 RCW.
F. Housing Assistance Program, Chapter 43.185 RCW.
13
G. Interlocal Cooperation Act, Chapter 39.34 RCW.
H. Noise Control, Chapter 70.107 RCW.
I. nterprises, Chapter 39.19 RCW and Chapter 326-02
WAC.
J. Open Public Meetings Act, Chapter 42.30 RCW.
K. Prevailing Wages on Public Works, Chapter 39.12 RCW.
L. Public Records Act, Chapter 42.56 RCW.
M. Relocation Assistance - Real Property Acquisition Policy, Chapter 8.26 RCW.
N. Shoreline Management Act of 1971, Chapter 90.58 RCW.
O. State Budgeting, Accounting, and Reporting System, Chapter 43.88 RCW.
P. State Building Code, Chapter 19.27 RCW and Energy-related building standards, Chapter 19.27A
RCW, and Provisions in buildings for aged and handicapped persons, Chapter 70.92 RCW.
Q. State Coastal Zone Management Program, Publication 01-06-003, Shorelands and
Environmental Assistance Program, Washington State Department of Ecology.
R. State Environmental Policy, Chapter 43.21C RCW.
S. State Executive Order 05-05 Archeological and Cultural Resources.
2.23 LICENSING, ACCREDITATION AND REGISTRATION
The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and
registration requirements or standards necessary for the performance of this Contract.
2.24 LIMITATION OF AUTHORITY
Only the Authorized
made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive
any clause or condition of this Contract.
2.25 Local Public Transportation Coordination
Where applicable, Contractor shall participate in local public transportation forums and implement strategies
designed to ensure access to services.
2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
During the performance of this Contract, the Contractor shall comply with all federal, state, and local
-compliance or refusal
to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or
terminated in whole or in part, and the Contractor may be declared ineligible for further contracts with the
Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance.
Any
2.27 PAY EQUITY
equals, consistent with the following:
A. Emp
the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar
14
working conditions. Job titles alone are not determinative of whether employees are similarly
employed;
B. Contractor may allow differentials in compensation for its workers if the differentials are based in good
faith and on any of the following:
1. A seniority system; a merit system; a system that measures earnings by quantity or quality of
production; a bona fide job-related factor or factors; or a bona fide regional difference in
compensation levels.
2. A bona fide job-related factor or factors may include, but not be limited to, education, training, or
experience that is: Consistent with business necessity; not based on or derived from a gender-based
differential; and accounts for the entire differential.
3. A bona fide regional difference in compensation level must be: Consistent with business necessity;
not based on or derived from a gender-based differential; and account for the entire differential.
This Contract may be terminated by the BOARD, if the Department of Commerce or the Department of
Enterprise Services determines that the Contractor is not in compliance with this provision.
2.28 POLITICAL ACTIVITIES
Political activity of Contractor employees and officers are limited by the State Campaign Finances and
Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508.
No funds may be used for working for or against ballot measures or for or against the candidacy of any
person for public office.
2.29 PREVAILING WAGE LAW
The Contractor certifies that all contractors and subcontractors performing work on the Project shall comply
with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by
39.12.040. The Contractor shall maintain records sufficient
review upon request.
2.30 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION
The funds provided under this Contract shall not be used in payment of any bonus or commission for the
purpose of obtaining approval of the application for such funds or any other approval or concurrence under
this Contract provided, however, that reasonable fees or bona fide technical consultant, managerial, or
other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project
costs.
2.31 PUBLICITY
The Contractor agrees not to publish or use any advertising or publicity materials in which the state of
consent of the Board.
2.32 RECAPTURE
In the event that the Contractor fails to perform this contract in accordance with state laws, federal laws,
and/or the provisions of this contract, the Board reserves the right to recapture funds in an amount to
compensate the Board for the noncompliance in addition to any other remedies available at law or in equity.
15
Repayment by the Contractor of funds under this recapture provision shall occur within the time period
specified by the Board. In the alternative, the Board may recapture such funds from payments due under
this contract.
2.33 RECORDS MAINTENANCE
The Contractor shall maintain all books, records, documents, data and other evidence relating to this
Contract and performance of the services described herein, including but not limited to accounting
procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature
expended in the performance of this Contract. Contractor shall retain such records for a period of six years
following the date of final payment.
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be
retained until all litigation, claims, or audit findings involving the records have been finally resolved.
2.34 REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law, the Contractor shall complete registration with the Washington State Department of
Revenue.
2.35 RIGHT OF INSPECTION
nce under this Contract shall be subject
at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and
federal and state officials so authorized by law, in order to monitor and evaluate performance, compliance,
and quality assurance under this Contract. The Contractor shall provide access to its facilities for this
purpose.
2.36 SAVINGS
In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after
the effective date of this Contract and prior to normal completion, the Board may terminate the Contract
under the "Termination for Convenience" clause, without the ten business day notice requirement. In lieu of
termination, the Contract may be amended to reflect the new funding limitations and conditions.
2.37 SEVERABILITY
If any provision of this Contract or any provision of any document incorporated by reference shall be held
invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect without
the invalid provision, if such remainder conforms to the requirements of law and the fundamental purpose of
this Contract and to this end the provisions of this Contract are declared to be severable.
2.38 SUBCONTRACTING
The Contractor may only subcontract work contemplated under this Contract if it obtains the prior written
approval of the Board.
If the Board approves subcontracting, the Contractor shall maintain written procedures related to
subcontracting, as well as copies of all subcontracts and records related to subcontracts. For cause, the
Board in writing may: (a) require the Contractor to amend its subcontracting procedures as they relate to
this Contract; (b) prohibit the Contractor from subcontracting with a particular person or entity; or (c) require
the Contractor to rescind or amend a subcontract.
Every subcontract shall bind the Subcontractor to follow all applicable terms of this Contract. The Contractor
is responsible to the Board if the Subcontractor fails to comply with any applicable term or condition of this
Contract. The Contractor shall appropriately monitor the activities of the Subcontractor to assure fiscal
16
conditions of this Contract. In no event shall the existence of a subcontract operate to release or reduce the
Every subcontract shall include a term that the Board and the State of Washington are not liable for claims
or damages arising from a Subco
2.39 SURVIVAL
The terms, conditions, and warranties contained in this Contract that by their sense and context are
intended to survive the completion of the performance, cancellation or termination of this Contract shall so
survive.
2.40 TAXES
gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole
responsibility of the Contractor.
2.41 TERMINATION FOR CAUSE / SUSPENSION
In event the Board determines that the Contractor failed to comply with any term or condition of this
Contract, the Board may terminate the Contract in whole or in part upon written notice to the Contractor.
notice.
In the alternative, the Board upon written notice may allow the Contractor a specific period of time in which
to correct the non-compliance. During the corrective-action time period, the Board may suspend further
this Contract. Failure by the Contractor to take timely corrective action shall allow the Board to terminate
the Contract upon written notice to the Contractor.
the Contractor did not fail to comply with the terms of the Contract or when the Board determines the failure
If the Contract is terminated for cause, the Contractor shall be liable for damages as authorized by law,
including, but not limited to, any cost difference between the original contract and the replacement contract,
as well as all costs associated with entering into the replacement contract (i.e., competitive bidding, mailing,
advertising, and staff time).
2.42 TERMINATION FOR CONVENIENCE
Except as otherwise provided in this Contract the Board may, by ten (10) business days written notice,
beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is
so terminated, the Board shall be liable only for payment required under the terms of this Contract for
services rendered or goods delivered prior to the effective date of termination.
2.43 TERMINATION PROCEDURES
After receipt of a notice of termination, except as otherwise directed by the Board, the Contractor shall:
A. Stop work under the Contract on the date, and to the extent specified, in the notice;
B. Place no further orders or subcontracts for materials, services, or facilities related to the Contract;
C. Assign to the State all of the rights, title, and interest of the Contractor under the orders and
subcontracts so terminated, in which case the Board has the right, at its discretion, to settle or pay any
or all claims arising out of the termination of such orders and subcontracts. Any attempt by the
Contractor to settle such claims must have the prior written approval of the Board; and
17
D.
possession as directed by the Board.
Upon termination of the Contract, the Board shall pay the Contractor for any service provided by the
Contractor under the Contract prior to the date of termination. The Board may withhold any amount due as
the Board reasonably determines is necessary to protect the Board against potential loss or liability
resulting from the termination. The Board shall pay any withheld amount to the Contractor if the Board later
determines that loss or liability will not occur.
The rights and remedies of the Board under this section are in addition to any other rights and remedies
provided under this Contract or otherwise provided under law.
2.44 WAIVER
Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach.
Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such
in writing and signed by Authorized Representative of the Board.
18
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
City of Bremerton
PC18-96103-004
I, ________________________________________________, hereby certify:
I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the
City of Bremerton (the Contractor); and
I have also examined any and all documents and records which are pertinent to the Contract, including the
application requesting this financial assistance.
Based on the foregoing, it is my opinion that:
1. The Contractor is a public body, properly constituted and operating under the laws of the State of
Washington, empowered to receive and expend federal, state and local funds, to contract with the State of
Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their
application.
2. The Contractor is empowered to accept the Public Works Board financial assistance and to provide for
repayment of the loan as set forth in the Contract.
3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the
above-described public facilities project or to enjoin the Contractor from repaying the loan extended by the
Public Works Board with respect to such project. The Contractor is not a party to litigation which will
materially affect its ability to repay such loan on the terms contained in the Contract.
4. Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable
to the Contractor.
__________________________________ _____________________________
Signature of Attorney Date
__________________________________
Name
_______________________________________________________________________
Address
19
AGENDA BILL
CITY OF BREMERTON
A9
CITY COUNCIL
SUBJECT: Public Works Trust Fund Loan Study Session Date: July 11, 2018
Funding Agreement for the Pine Road Basin
COUNCIL MEETING Date: July 18, 2018
Watershed Storm Sewer Improvements
Department: PW & Utilities
Project
Presenter: Chal Martin
Phone: (360) 473-5758
SUMMARY: Loan agreement for the use of Public Works Trust Funds for the Pine Road Basin
Watershed Storm Sewer Improvements project. The funds will be managed and distributed by the
State Department of Commerce. The Pine Road Basin project will include new storm sewer facilities
to increase capacity and eliminate residential flooding in the Eagle Avenue Sub-basin, upgrade
downstream facilities as necessary, and replace a failing stormwater outfall on the beach at Lebo
Boulevard and Sheridan Road.
ATTACHMENTS: 1. Proposed Agreement
2. Vicinity Maps
FISCAL IMPACTS (Include Budgeted Amount): The project is funded by a Public Works Trust
Fund Loan in the amount of $3,881,330. The loan term is 20 years with an interest rate of 1.66%
and will be paid with stormwater utility funds.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to authorize the Public Works Trust Fund Loan for the Pine Road Watershed Storm Sewer
Improvements and authorize the Mayor to finalize and execute the funding agreement with
Commerce with substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
CONTRACT FACE SHEET
Contract Number: PC18-96103-005
PUBLIC WORKS BOARD
CONSTRUCTION LOAN CONTRACT
1. Contractor 2. Contractor Doing Business As (optional)
N/A
City of Bremerton
th
345 6 St, STE 100
Bremerton, WA 98337
3. Contractor Representative 4. Public Works Board Representative
N/AN/A
5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End
Date Date
$3,881,330.00 Contract Execution June 1, 2038
Federal: State: Other:
Date
N/A:
9. Federal Funds (as applicable) Federal Agency CFDA Number
N/AN/A N/A
10. Tax ID # 11. SWV # 12. UBI # 13. DUNS #
N/A181-002-539
SWV0000221-00
14. Contract Purpose
Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction,
replacement, rehabilitation, or improvement of streets, roads, bridges, drinking water systems, stormwater
systems, sanitary sewage systems, or solid waste facilities, including recycling facilities.
The Board, defined as the Washington State Public Works Board and Contractor acknowledge and accept the
terms of this Contract and attachments and have executed this Contract on the date below to start as of the
date and year last written below. The rights and obligations of both parties to this Contract are governed by
this Contract and the following other documents incorporated by reference: Contract Terms and Conditions
including Declarations Page; and Attachment I:
FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD
Signature Scott Hutsell, Public Works Board Chair
Print Name Date
APPROVED AS TO FORM ONLY
Title
May 02, 2018
Date
Signature on file
Sandra Adix
Assistant Attorney General
2
DECLARATIONS
CLIENT INFORMATION
Legal Name:
City of Bremerton
Loan Number: PC18-96103-005
PROJECT INFORMATION
Project Title:
Pine Basin Watershed Storm Sewer Improvements
Project City: Bremerton
Project State: Washington
Project Zip Code: 98337
LOAN INFORMATION
Loan Amount: $3,881,330.00
Total Estimated Cost: $3,881,330.00
Total Estimated Funding: $3,881,330.00
Loan Term: 20
Interest Rate: 1.66%
st
Payment Month: June 1
September 1, 2016
Loan Reimbursement Start Date:
Time of Performance 60 months from Execution Date of this Contract to Project
Completion.
SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT
N/A
LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT
This loan is a revenue obligation of the LOCAL GOVERNMENT payable solely from the net revenue of the
Stormwater/Sanitary Sewer system. Payments shall be made from the net revenue of the utility after the
payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility
penses of
maintenance and operations. The BOARD grants the LOCAL GOVERNMENT the right to issue future bonds
and notes that constitute a lien and charge on net revenue superior to the lien and charge of this loan
agreement.
SCOPE OF WORK
Replace existing Pine Road Basin Outfall and install new storm sewer facilities to increase capacity and
eliminate residential flooding in the Eagle Avenue Sub-basin.
The project costs may include but are not limited to engineering, cultural and historical resources,
environmental documentation, review, permits, public involvement, easements, bid documents and
construction. The project needs to meet all applicable Local, State, and/or Federal standards.
3
TABLE OF CONTENTS
CONTRACT TERMS AND CONDITIONS ................................................................................. 1
Part 1. SPECIAL TERMS AND CONDITIONS ........................................................................ 1
1.1 Definitions .............................................................................................................................1
1.2 Authority ................................................................................................................................1
1.3 Purpose .................................................................................................................................1
1.4 Order of Precedence ............................................................................................................1
1.5 5- year deferral for start-up systems ..................................................................................2
1.6 Competitive Bidding Requirements ...................................................................................2
1.7 Default in Repayment ...........................................................................................................2
1.8 Investment Grade Audit .......................................................................................................2
1.9 Sub-Contractor Data Collection ..........................................................................................2
1.10 Eligible Project Costs ...........................................................................................................2
1.11 Historical and Cultural Resources ......................................................................................3
1.12 Performance Incentives .......................................................................................................3
1.13 Project Completion Amendment and Certified Project Completion Report ...................4
1.14 Project Signs .........................................................................................................................4
1.15 Rate and Term of Loan .........................................................................................................5
1.16 Recapture ..............................................................................................................................5
1.17 Reimbursement Procedures and Payment ........................................................................5
1.18 Repayment ............................................................................................................................6
1.19 Reports ..................................................................................................................................7
1.20 Termination for Cause .........................................................................................................7
1.21 Termination for Convenience ..............................................................................................7
1.22 Time of Performance ............................................................................................................7
1.23 Contract Suspension ...........................................................................................................8
1.24 Special Conditions ...............................................................................................................8
1.25 Loan Security ........................................................................................................................8
Part 2. GENERAL TERMS AND CONDITIONS ...................................................................... 9
2.1 DEFINITIONS ..........................................................................................................................9
2.2 Allowable Costs .....................................................................................................................9
2.3 ALL WRITINGS CONTAINED HEREIN .................................................................................9
2.4 AMENDMENTS .......................................................................................................................9
2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also
.....................................................................................9
2.6 APPROVAL .............................................................................................................................9
2.7 ASSIGNMENT ...................................................................................................................... 10
............................................................................................................ 10
2.9 AUDIT ................................................................................................................................... 10
2.10 CODE REQUIREMENTS .................................................................................................... 11
2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION ............................................. 11
2.12 CONFORMANCE ................................................................................................................ 11
2.13 COPYRIGHT PROVISIONS ................................................................................................ 11
2.14 DISALLOWED COSTS ....................................................................................................... 12
2.15 DISPUTES ........................................................................................................................... 12
2.16 DUPLICATE PAYMENT ..................................................................................................... 12
2.17 ETHICS/CONFLICTS OF INTEREST ................................................................................. 12
2.18 GOVERNING LAW AND VENUE ....................................................................................... 13
2.19 INDEMNIFICATION ............................................................................................................ 13
2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR ...................................................... 13
2.21 INDUSTRIAL INSURANCE COVERAGE ........................................................................... 13
2.22 LAWS .................................................................................................................................. 13
2.23 LICENSING, ACCREDITATION AND REGISTRATION .................................................... 14
2.24 LIMITATION OF AUTHORITY ............................................................................................ 14
2.25 Local Public Transportation Coordination ..................................................................... 14
2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ............................................... 14
2.27 PAY EQUITY ....................................................................................................................... 14
2.28 POLITICAL ACTIVITIES ..................................................................................................... 15
2.29 PREVAILING WAGE LAW ................................................................................................. 15
2.30 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION .............................. 15
2.31 PUBLICITY .......................................................................................................................... 15
2.32 RECAPTURE ...................................................................................................................... 15
2.33 RECORDS MAINTENANCE ............................................................................................... 16
2.34 REGISTRATION WITH DEPARTMENT OF REVENUE .................................................... 16
2.35 RIGHT OF INSPECTION .................................................................................................... 16
2.36 SAVINGS ............................................................................................................................ 16
2.37 SEVERABILITY .................................................................................................................. 16
2.38 SUBCONTRACTING .......................................................................................................... 16
2.39 SURVIVAL .......................................................................................................................... 17
2.40 TAXES ................................................................................................................................. 17
2.41 TERMINATION FOR CAUSE / SUSPENSION................................................................... 17
2.42 TERMINATION FOR CONVENIENCE ............................................................................... 17
2.43 TERMINATION PROCEDURES ......................................................................................... 17
2.44 WAIVER .............................................................................................................................. 18
Part 3. .................................................. 18
CONTRACT TERMS AND CONDITIONS
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
Part 1. SPECIAL TERMS AND CONDITIONS
1.1 Definitions
As used throughout this Construction Loan Contract the following terms shall have the meaning set forth
below:
A.
B. local government identified on the Contract Face Sheet performing
service(s) under this Contract and who is a Party to the Contract, and shall include all employees and
agents of the Contractor.
C.
Washington (RCW) 43.155.030, and who is a Party to the Contract.
D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions as stated
on the Declarations Page of this Loan Contract, displayed within the contract in THIS STYLE for easier
identification.
1.2 Authority
Acting under the authority of Chapter 43.155 RCW, the Board has awarded the Contractor a Public Works
Board construction loan for an approved public works project.
1.3 Purpose
The Board and the Contractor have entered into this Contract to undertake a local public works project that
furthers the goals and objectives of the Washington State Public Works Program. The project will be
undertaken by the Contractor and will include the activities described in the SCOPE OF WORK shown on
the Declarations page. The project must be undertaken in accordance with the loan terms and conditions,
and all applicable federal, state and local laws and ordinances, which by this reference are incorporated into
this Contract as though set forth fully herein.
1.4 Order of Precedence
In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence
in the following order:
A. Applicable federal and state of Washington statutes and regulations.
B. Special Terms and Conditions including attachments.
C. General Terms and Conditions.
1
1.5 5- year deferral for start-up systems
If the project financed by this contract is to develop a system to deliver previously unavailable services, and
revenue from those services is to repay the loan, the new system is eligible for a deferral of loan payments
for sixty (60) months after the Contract execution date. The Contractor may provide a written request to the
Board requesting a 5-year deferral for an eligible system. The Board may approve the deferral request.
Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is due June
1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of the 7th year of the
loan term.
1.6 Competitive Bidding Requirements
The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding
requirements for projects assisted in whole or in part with money from the Public Works Program.
1.7 Default in Repayment
Loan repayments shall be made on the loan in accordance with Section 1.18 of this Contract. A payment
not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall
be assessed a monthly penalty beginning on the first (1st) day past the due date. The penalty will be
assessed on the entire payment amount. The penalty will be one percent (1%) per month or twelve percent
(12%) per annum. The same penalty terms shall apply at project completion if the repayment of loan funds
in excess of eligible costs are not repaid at the time of the Project Completion Amendment is submitted, as
provided for in Section 1.13.
annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of such
delinquency.
The Contractor shall be responsible for all legal fees incurred by the Board in any action undertaken to
enforce its rights under this section.
1.8 Investment Grade Audit
For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other public
works facility for which an investment grade audit is obtainable, Contractor must undertake an investment
grade audit.
Costs incurred as part of the investment grade audit are eligible project costs.
1.9 Sub-Contractor Data Collection
Contractor will submit reports, in a form and format to be provided by Commerce and at intervals as agreed
by the parties, regarding work under this Contract performed by sub-contractors and the portion of the
Contract funds expended for work performed by sub-contractors, including but not necessarily limited to
minority-owned, women-owned, and veteran-owned business sub--
mean sub-contractors of any tier.
1.10 Eligible Project Costs
The Eligible project costs must consist of expenditures eligible under Washington Administrative Code
(WAC) 399-30-030 and be related only to project activities described in declared SCOPE OF WORK.
2
Eligible costs for reimbursement shall be construed to mean expenditures incurred and paid, or incurred
and payable within thirty (30) days of the reimbursement request. Only costs that have been incurred on or
after LOAN REIMBURSEMENT START DATE shown in the Declarations are eligible for reimbursement
under this Contract. Eligible costs will be paid according to an approved budget up to the maximum amount
stated on the Contract Award or Amendment Face Sheet.
The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for projects
assisted with Public Works Board loans.
These terms supersede the terms in Section 2.2. Allowable Costs.
1.11 Historical and Cultural Resources
Prior to commencing construction, Contractor shall complete the requirements of
Order 05-05, or, as an alternative to -05, Contractor shall
complete Section 106 of the National Historic Preservation Act, as applicable. Contractor agrees that the
Contractor is legally and financially responsible for compliance with all laws, regulations, and agreements
related to the preservation of historical or cultural resources and agrees to hold harmless the Board and the
State of Washington in relation to any claim related to such historical or cultural resources discovered,
disturbed, or damaged as a result of the project funded by this Contract.
Executive Order 05-05, coordinate with the Washington State Department of Archaeology and Historic
Preservation (DAHP), including any recommended consultation with any affected tribe(s), during project
design and prior to construction to determine the existence of any tribal cultural resources affected by the
proposed project funded by this Contract. Contractor agrees to avoid, minimize, or mitigate impacts to
cultural resource as a continuing pre-requisite to receipt of funds under this Contract.
The Contractor agrees that, unless the Contractor is proceeding under an approved historical and cultural
monitoring plan or other memorandum of agreement, if historical or cultural resources are discovered during
construction, the Contractor shall immediately stop work and notify the local historical preservation officer
and the state's historic preservation officer at DAHP. If human remains are uncovered, the Contractor shall
report the presence and location of the remains to the coroner and local enforcement immediately, then
r committee.
The Contractor shall require this provision to be contained in all sub-contracts for work or services related to
the declared SCOPE OF WORK.
In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW 27.44.040
regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW
68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and, WAC 25-48 regarding
Archaeological Excavation and Removal Permits.
Completion of the Section 106 of the National Historic Preservation Act shall substitute for completion of
-05.
In the event that the Contractor finds it necessary to amend SCOPE OF WORK, the Contractor may be
required to re-comply with -05 or Section 106 of the National Historic
Preservation Act.
1.12 Performance Incentives
The Contractor shall complete the project no later than sixty (60) months after the date of contract
execution.
3
Should the Contractor complete the project within forty-eight (48) months of the date of contract execution,
the Contractor may choose one of the two following incentives upon project completion:
Option A: The repayment period will be increased by twenty-four (24) months, not to exceed the life
of the asset, OR:
Option B: The interest rate will be decreased by one-quarter of one percent (0.25%).
Should the Contractor complete the project within thirty-six (36) months of the date of contract execution,
the Contractor may choose one of the following two incentives upon project completion:
Option C: The repayment period will be increased by sixty (60) months, not to exceed the life of the
asset, OR;
Option D: The interest rate will be decreased by up to one-half of one percent (0.50%).
Once an option is selected, the Contract shall be modified to note the appropriate change and no further
adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of the performance
incentive chosen, at no point in time shall the minimum loan interest rate be less than 0.25%.
The calculation of interest rate and term adjustments will apply to the remaining payments beginning from
the date the Project Completion report is certified.
1.13 Project Completion Amendment and Certified Project Completion Report
The Contractor shall complete a Certified Project Completion Report when all activities identified in the
SCOPE OF WORK are complete. The Board will supply the Contractor with the Certified Project Completion
Report form, which shall include:
A. A certified statement that the project, as described in the declared SCOPE OF WORK, is complete and,
if applicable, meets required standards.
B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the
project as described in the SCOPE OF WORK.
C. Certification that all costs associated with the project have been incurred and have been accounted for.
Costs are incurred when goods and services are received and/or contract work is performed.
D. A final voucher for the remaining eligible funds.
E. Pictures of Completed Project.
The Contractor will submit the Certified Project Completion Report together with the last Invoice Voucher for
a sum not to exceed the balance of the loan amount. The final Invoice Voucher payment shall not occur
prior to the completion of all project activities identified in the SCOPE OF WORK and the Board's receipt
and acceptance of the Certified Project Completion Report.
The Project Completion Amendment shall serve as an amendment to this Contract determining the final
loan amount, local share, term, and interest rate.
1.14 Project Signs
If the Contractor displays, during the period covered by this Contract, signs or markers identifying those
agencies participating financially in the approved project, the sign or marker must identify the Washington
State Public Works Board as a participant in the project.
4
1.15 Rate and Term of Loan
The Board shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the Contract Face
Sheet and declared on the Contract Declarations Page. The interest rate shall be the declared INTEREST
RATE per annum on the outstanding principal balance. The length of the loan shall not exceed the declared
LOAN TERM in years, with the final payment due by the CONTRACT END DATE as shown on the Contract
Face Sheet.
1.16 Recapture
The right of recapture under Section 2.32. Recapture, shall exist for a period not to exceed six (6) years
following contract termination. In the event that the Board is required to institute legal proceedings to
1.17 Reimbursement Procedures and Payment
If funding or appropriation is not available at the time the invoice is submitted, or when this contract is
executed, the issuance of warrants will be delayed or suspended until such time as funds or appropriation
become available. Therefore, subject to the availability of funds, warrants shall be issued to the Contractor
for reimbursement of allowable expenses incurred by the Contractor while undertaking and administering
approved project activities in accordance with the declared SCOPE OF WORK.
The Board shall reimburse the Contractor for eligible project expenditures up to the maximum loan amount
under this contract, as identified in Section 1.10. When requesting reimbursement for costs incurred, the
Contractor shall submit a signed and completed Invoice Voucher (Form A19), referencing the SCOPE OF
WORK project activity performed, and any appropriate documentation such as bills, invoices, and receipts.
The Invoice Voucher must be certified by an official of the Contractor with authority to bind the Contractor.
Requests for reimbursements for costs related to construction activities will not be accepted until the
Contractor provides:
Proof of c-05 or Section 106 of the National Historic
Preservation Act, as described in Section 1.11, and
Signed Public Works Board Notice of Contract Award and Notice to Proceed, which follows the
formal award of a construction contract.
The Contractor shall submit all Invoice Vouchers and all required documentation to:
Public Works Board
Attn: (Program Specialist)
PO Box 42525
Olympia, WA 98504-2525
The Board will pay the Contractor upon acceptance of the work performed and receipt of properly
completed invoices. Invoices shall be submitted to the Board not more often than monthly.
Payment shall be considered timely if made by the Board within thirty (30) calendar days after receipt of
properly completed invoices. Payment shall be sent to the address designated by the Contractor.
The Board may, at its sole discretion, terminate the contract or withhold payments claimed by the
Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of
this contract.
5
No payments in advance or in anticipation of services or supplies to be provided under this contract shall be
made by the Board.
Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by another
source for an eligible project cost, then the Contractor shall not be reimbursed by the Board for that cost.
Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its
own organization or that of its subcontractors.
In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At the time of
project completion, the Contractor shall submit to the Board a Project Completion Amendment certifying the
total actual project costs and local share. The final Public Works loan disbursement shall bring the total
loan to the lesser of 100% of the eligible project costs or the total declared LOAN AMOUNT. The Project
Completion Amendment shall serve as an amendment to this Contract determining the final loan amount,
local share, and interest rate.
In the event that the final costs identified in the Project Completion Amendment indicate that the Contractor
has received Public Works Board monies in excess of 100.00% of eligible costs, all funds in excess of
100.00% shall be repaid to the Public Works Board by payment to the Department of Commerce, or its
successor, together with the submission of the Project Completion Amendment.
1.18 Repayment
Loan repayment installments are due on the day and month identified under the term: PAYMENT MONTH
on the Declarations Page. Payments are due each year during the term of the loan beginning one year
from the date of contract execution. Interest only will be charged for this payment if a warrant is issued prior
to this date. All subsequent payments shall consist of principal and accrued interest due on the specified
PAYMENT MONTH date of each year during the remaining term of the loan.
Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum based on
a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest will begin to accrue
from the date each warrant is issued to the Contractor. The final payment shall be on or before the
CONTRACT END DATE shown on the Declarations page, of an amount sufficient to bring the loan balance
to zero.
In the event that the Board approves the Contractor's request for a deferral as outlined in Section 1.5, then
the first loan repayment is due sixty (60) months after contract execution. Interest accrues for the sixty (60)
months after contract execution. The accrued interest only will be charged for this payment if a warrant is
issued prior to this date. Interest and principal payments are due on the declared PAYMENT MONTH date
of each year during the remaining term of the loan. The Contractor has the right to repay the unpaid
balance of the loan in full at any time or make accelerated payments without penalty.
The Contractor will repay the loan in accordance with the preceding conditions through the use of a check,
money order, or equivalent means made payable to the Washington State Department of Commerce, or its
successor.
6
1.19 Reports
The Contractor shall furnish the Board with:
A. Project Status Reports with each Invoice Voucher;
B. Project Quarterly Reports (if no funds have been reimbursed in the quarter) and/or Quarterly
Expenditures Report;
C. Certified Project Completion Report at project completion (as described in Section 1.13);
D. Pictures of various stages of the project, and
E. Other reports as the Board may require.
1.20 Termination for Cause
If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds only for
those activities identified in the SCOPE OF WORK, the Board may terminate the Contract in whole or in part
at any time. The Board shall notify the Contractor in writing of its determination to terminate, the reason for
such termination, and the effective date of the termination. Nothing in this section shall affect the
Contractor's obligation to repay the unpaid balance of the loan.
These terms supersede the terms in Section 2.41 Termination for Cause/Suspension.
1.21 Termination for Convenience
The Board may terminate this contract in the event that state funds are no longer available to the Board, or
are not appropriated for the purpose of meeting the der this contract. Termination will
be effective when the Board sends written notice of termination to the Contractor. Nothing in this section
These terms supersede the terms in Section 2.42 Termination for Convenience.
1.22 Time of Performance
No later than sixty (60) months after the date of contract execution the Contractor must reach project
completion.
Failure to meet Time of Performance shall constitute default of this contract. In the event of extenuating
circumstances, the Contractor may request, in writing, that the Board extend the deadline for project
completion. The Board may extend the deadline.
The term of this contract shall be for the entire term of the loan, regardless of actual project completion,
unless terminated sooner as provided herein.
1.23 Contract Suspension
In the event that the Washington State Legislature fails to pass and the Governor does not authorize a
Capital Budget by June 30 of each biennium, the Washington State Constitution Article 8 and RCW
43.88.130 and RCW 43.88.290 prohibit expenditures or commitments of state funds in the absence of
appropriation.
In such event, all work will be suspended effective July 1. The Contractor shall immediately suspend work
and take all reasonable steps necessary to minimize the cost of performance directly attributable to such
suspension until the suspension is cancelled.
7
THE BOARD shall notify the Contractor immediately upon lifting of the contract suspension.
1.24 Special Conditions
If SPECIAL CONDITIONS are listed on the Contract Declarations Page then these conditions are herein
incorporated as part of the terms and requirements of this contract.
1.25 Loan Security
Loan Security payments shall be made as stated on the attached Declarations Page, and identified therein
as LOAN SECURITY.
8
Part 2. GENERAL TERMS AND CONDITIONS
2.1 DEFINITIONS
As used throughout this Contract, the following terms shall have the meaning set forth below:
A.
B. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this
Contract, and shall include all employees and agents of the Contractor.
C.
Washington (RCW) 43.155.030, and which is a Party to the Contract
D. person, including, but not limited
of governmental services or other activities, addresses, telephone numbers, social security
numbers, driver license numbers, other identifying numbers, and any financial identifiers.
E.
F. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or
part of those services under this Contract under a separate contract with the Contractor. The terms
2.2 Allowable Costs
Costs allowable under this Contract are actual expenditures according to an approved budget up to the
maximum amount stated on the Contract Award or Amendment Face Sheet.
2.3 ALL WRITINGS CONTAINED HEREIN
This Contract contains all the terms and conditions agreed upon by the parties. No other understandings,
oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the
parties hereto.
2.4 AMENDMENTS
This Contract may be amended by mutual agreement of the parties. Such amendments shall not be binding
unless they are in writing and signed by personnel authorized to bind each of the parties.
2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as
The Contractor must comply with the ADA, which provides comprehensive civil rights protection to
individuals with disabilities in the areas of employment, public accommodations, state and local government
services, and telecommunications.
2.6 APPROVAL
all not
be binding until so approved. The contract may be altered, amended, or waived only by a written
amendment executed by both parties.
9
2.7 ASSIGNMENT
Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the
Contractor without prior written consent of the Board.
Unless expressly permitted under another provision of the Contract, in the event of litigation or other action
brought to enforce Contract terms, each party agrees to
2.9 AUDIT
A. General Requirements
Contractors are to procure audit services based on the following guidelines.
The Contractor shall maintain its records and accounts so as to facilitate the audit requirement and
shall ensure that Subcontractors also maintain auditable records.
The Contractor is responsible for any audit exceptions incurred by its own organization or that of its
Subcontractors.
The Board reserves the right to recover from the Contractor all disallowed costs resulting from the audit.
Responses to any unresolved management findings and disallowed or questioned costs shall be
corrective action concerning audit issues within thirty (30) days of the date of request.
B. State Funds Requirements
In the event an audit is required, if the Contractor is a local government entity, the Office of the State
Auditor shall conduct the audit. Audits of non-profit organizations are to be conducted by a certified
public accountant selected by the Contractor.
The Contractor shall include the above audit requirements in any subcontracts.
Board.
C. Documentation Requirements
The Contractor must send a copy of any required audit no later than nine (9) months after the end of the
Department of Commerce
ATTN: Audit Review and Resolution Office
PO Box 42525
Olympia WA 98504-2525
In addition to sending a copy of the audit, when applicable, the Contractor must include:
Corrective action plan for audit findings within three (3) months of the audit being received by the
Board.
Copy of the Management Letter.
If the Contractor is required to obtain a Single Audit in accordance with 2 CFR Part 200, a copy must be
provided to Commerce; no other report is required.
10
2.10 CODE REQUIREMENTS
All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and
federal building, mechanical, plumbing, fire, energy and barrier-free codes. Compliance with the Americans
with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building
Department.
2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION
A.
1.
2. All material produced by the Contractor th
3. All personal information in the possession of the Contractor that may not be disclosed under state or
name, health, finances, education, business, use of government services, addresses, telephone
ability and Accountability Act of
1996 (HIPAA).
B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or
disclosure of Confidential Information. The Contractor shall use Confidential Information solely for the
purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information
to any third party except with the prior written consent of the Board or as may be required by law. The
Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to
prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of
any state or federal laws related thereto. Upon request, the Contractor shall provide the Board with its
policies and procedures on confidentiality. The Board may require changes to such policies and
procedures as they apply to this Contract whenever the Board reasonably determines that changes are
necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time
period specified by the Board. Upon request, the Contractor shall immediately return to the Board any
Confidential Information that the Board reasonably determines has not been adequately protected by
the Contractor against unauthorized disclosure.
C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of
any unauthorized use or disclosure of any confidential information, and shall take necessary steps to
mitigate the harmful effects of such use or disclosure.
2.12 CONFORMANCE
If any provision of this contract violates any statute or rule of law of the state of Washington, it is considered
modified to conform to that statute or rule of law.
2.13 COPYRIGHT PROVISIONS
Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire"
as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the
author of such Materi
Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials,
including all intellectual property rights, moral rights, and rights of publicity to the Board effective from the
moment of creation of such Materials.
pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or
these rights.
11
For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced
under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty-free, irrevocable
license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare
derivative works, publicly perform, and publicly display. The Contractor warrants and represents that the
Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of
publicity, necessary to grant such a license to the Board.
The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materials
furnished under this Contract, of all known or potential invasions of privacy contained therein and of any
portion of such document which was not produced in the performance of this Contract. The Contractor shall
provide the Board with prompt written notice of each notice or claim of infringement received by the
Contractor with respect to any Materials delivered under this Contract. The Board shall have the right to
modify or remove any restrictive markings placed upon the Materials by the Contractor.
2.14 DISALLOWED COSTS
The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization
or that of its Subcontractors.
2.15 DISPUTES
Except as otherwise provided in this Contract, when a dispute arises between the parties and it cannot be
resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who
may designate a neutral person to decide the dispute.
The request for a dispute hearing must:
be in writing;
state the disputed issues;
state the relative positions of the parties;
state the Contractor's name, address, and Contract number; and
be mailed to the Chair and the
working days after the parties agree that they cannot resolve the dispute.
designee and the requestor within five (5) working days.
The Chair or designee shall review the written statements and reply in writing to both parties within ten (10)
working days. The Chair or designee may extend this period if necessary by notifying the parties.
The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding.
The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal.
Nothing in this Contract shall be construed to limit t
dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above.
2.16 DUPLICATE PAYMENT
The Contractor certifies that work to be performed under this contract does not duplicate any work to be
charged against any other contract, subcontract, or other source.
2.17 ETHICS/CONFLICTS OF INTEREST
In performing under this Contract, the Contractor shall assure compliance with the Ethics in Public Service
Act (Chapter 42.52 RCW) and any other applicable state or federal law related to ethics or conflicts of
interest.
12
2.18 GOVERNING LAW AND VENUE
This Contract shall be construed and interpreted in accordance with the laws of the state of Washington,
and the venue of any action brought hereunder shall be in the Superior Court for Thurston County.
2.19 INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of
Washington, the Board, all other agencies of the state and all officers, agents and employees of the state,
from and against all claims or damages for injuries to persons or property or death arising out of or incident
obligation to indemnify,
any Subcontractor or its agents, employees, or representatives.
rmless shall not be eliminated by any actual or
alleged concurrent negligence of the state or its agents, agencies, employees and officers.
Subcontracts shall include a comprehensive indemnification clause holding harmless the Contractor, the
Board, the state of Washington, its officers, employees and authorized agents.
The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and
hold harmless the state and its agencies, officers, agents or employees.
2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR
The parties intend that an independent contractor relationship will be created by this Contract. The
Contractor and its employees or agents performing under this Contract are not employees or agents of the
state of Washington or the Board. The Contractor will not hold itself out as or claim to be an officer or
employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any
claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and
control of the work will be solely with the Contractor.
2.21 INDUSTRIAL INSURANCE COVERAGE
The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the
Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of
its employees as may be required by law, the Board may collect from the Contractor the full amount
payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the
Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract,
and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance
S
2.22 LAWS
The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of local
and state and federal governments, as now or hereafter amended including, but not limited to:
Washington State Laws and Regulations
A. Affirmative Action, RCW 41.06.020 (11).
B. Boards of Directors or Officers of Non-profit Corporations Liability - Limitations, RCW 4.24.264.
C. Disclosure-Campaign Finances-Lobbying, Chapter 42.17 RCW.
D. Discrimination-Human Rights Commission, Chapter 49.60 RCW.
E. Ethics in Public Service, Chapter 42.52 RCW.
F. Housing Assistance Program, Chapter 43.185 RCW.
13
G. Interlocal Cooperation Act, Chapter 39.34 RCW.
H. Noise Control, Chapter 70.107 RCW.
I. nterprises, Chapter 39.19 RCW and Chapter 326-02
WAC.
J. Open Public Meetings Act, Chapter 42.30 RCW.
K. Prevailing Wages on Public Works, Chapter 39.12 RCW.
L. Public Records Act, Chapter 42.56 RCW.
M. Relocation Assistance - Real Property Acquisition Policy, Chapter 8.26 RCW.
N. Shoreline Management Act of 1971, Chapter 90.58 RCW.
O. State Budgeting, Accounting, and Reporting System, Chapter 43.88 RCW.
P. State Building Code, Chapter 19.27 RCW and Energy-related building standards, Chapter 19.27A
RCW, and Provisions in buildings for aged and handicapped persons, Chapter 70.92 RCW.
Q. State Coastal Zone Management Program, Publication 01-06-003, Shorelands and
Environmental Assistance Program, Washington State Department of Ecology.
R. State Environmental Policy, Chapter 43.21C RCW.
S. State Executive Order 05-05 Archeological and Cultural Resources.
2.23 LICENSING, ACCREDITATION AND REGISTRATION
The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and
registration requirements or standards necessary for the performance of this Contract.
2.24 LIMITATION OF AUTHORITY
made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive
any clause or condition of this Contract.
2.25 Local Public Transportation Coordination
Where applicable, Contractor shall participate in local public transportation forums and implement strategies
designed to ensure access to services.
2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
During the performance of this Contract, the Contractor shall comply with all federal, state, and local
nondiscrimination -compliance or refusal
to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or
terminated in whole or in part, and the Contractor may be declared ineligible for further contracts with the
Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance.
2.27 PAY EQUITY
equals, consistent with the following:
A.
the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar
14
working conditions. Job titles alone are not determinative of whether employees are similarly
employed;
B. Contractor may allow differentials in compensation for its workers if the differentials are based in good
faith and on any of the following:
1. A seniority system; a merit system; a system that measures earnings by quantity or quality of
production; a bona fide job-related factor or factors; or a bona fide regional difference in
compensation levels.
2. A bona fide job-related factor or factors may include, but not be limited to, education, training, or
experience that is: Consistent with business necessity; not based on or derived from a gender-based
differential; and accounts for the entire differential.
3. A bona fide regional difference in compensation level must be: Consistent with business necessity;
not based on or derived from a gender-based differential; and account for the entire differential.
This Contract may be terminated by the BOARD, if the Department of Commerce or the Department of
Enterprise Services determines that the Contractor is not in compliance with this provision.
2.28 POLITICAL ACTIVITIES
Political activity of Contractor employees and officers are limited by the State Campaign Finances and
Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508.
No funds may be used for working for or against ballot measures or for or against the candidacy of any
person for public office.
2.29 PREVAILING WAGE LAW
The Contractor certifies that all contractors and subcontractors performing work on the Project shall comply
with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by
to evidence compliance with Chapter 3
review upon request.
2.30 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION
The funds provided under this Contract shall not be used in payment of any bonus or commission for the
purpose of obtaining approval of the application for such funds or any other approval or concurrence under
this Contract provided, however, that reasonable fees or bona fide technical consultant, managerial, or
other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project
costs.
2.31 PUBLICITY
The Contractor agrees not to publish or use any advertising or publicity materials in which the state of
m which the connection with the state
consent of the Board.
2.32 RECAPTURE
In the event that the Contractor fails to perform this contract in accordance with state laws, federal laws,
and/or the provisions of this contract, the Board reserves the right to recapture funds in an amount to
compensate the Board for the noncompliance in addition to any other remedies available at law or in equity.
15
Repayment by the Contractor of funds under this recapture provision shall occur within the time period
specified by the Board. In the alternative, the Board may recapture such funds from payments due under
this contract.
2.33 RECORDS MAINTENANCE
The Contractor shall maintain all books, records, documents, data and other evidence relating to this
Contract and performance of the services described herein, including but not limited to accounting
procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature
expended in the performance of this Contract. Contractor shall retain such records for a period of six years
following the date of final payment.
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be
retained until all litigation, claims, or audit findings involving the records have been finally resolved.
2.34 REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law, the Contractor shall complete registration with the Washington State Department of
Revenue.
2.35 RIGHT OF INSPECTION
at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and
federal and state officials so authorized by law, in order to monitor and evaluate performance, compliance,
and quality assurance under this Contract. The Contractor shall provide access to its facilities for this
purpose.
2.36 SAVINGS
In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after
the effective date of this Contract and prior to normal completion, the Board may terminate the Contract
under the "Termination for Convenience" clause, without the ten business day notice requirement. In lieu of
termination, the Contract may be amended to reflect the new funding limitations and conditions.
2.37 SEVERABILITY
If any provision of this Contract or any provision of any document incorporated by reference shall be held
invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect without
the invalid provision, if such remainder conforms to the requirements of law and the fundamental purpose of
this Contract and to this end the provisions of this Contract are declared to be severable.
2.38 SUBCONTRACTING
The Contractor may only subcontract work contemplated under this Contract if it obtains the prior written
approval of the Board.
If the Board approves subcontracting, the Contractor shall maintain written procedures related to
subcontracting, as well as copies of all subcontracts and records related to subcontracts. For cause, the
Board in writing may: (a) require the Contractor to amend its subcontracting procedures as they relate to
this Contract; (b) prohibit the Contractor from subcontracting with a particular person or entity; or (c) require
the Contractor to rescind or amend a subcontract.
Every subcontract shall bind the Subcontractor to follow all applicable terms of this Contract. The Contractor
is responsible to the Board if the Subcontractor fails to comply with any applicable term or condition of this
Contract. The Contractor shall appropriately monitor the activities of the Subcontractor to assure fiscal
16
conditions of this Contract. In no event shall the existence of a subcontract operate to release or reduce the
liability of the Contractor to the Board for any breach in the performance of the Co
Every subcontract shall include a term that the Board and the State of Washington are not liable for claims
2.39 SURVIVAL
The terms, conditions, and warranties contained in this Contract that by their sense and context are
intended to survive the completion of the performance, cancellation or termination of this Contract shall so
survive.
2.40 TAXES
All payments accrued on account of payroll taxes, unemployme
gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole
responsibility of the Contractor.
2.41 TERMINATION FOR CAUSE / SUSPENSION
In event the Board determines that the Contractor failed to comply with any term or condition of this
Contract, the Board may terminate the Contract in whole or in part upon written notice to the Contractor.
t on the date specified in the
notice.
In the alternative, the Board upon written notice may allow the Contractor a specific period of time in which
to correct the non-compliance. During the corrective-action time period, the Board may suspend further
pa
this Contract. Failure by the Contractor to take timely corrective action shall allow the Board to terminate
the Contract upon written notice to the Contractor.
the Contractor did not fail to comply with the terms of the Contract or when the Board determines the failure
was not caused by the Contrac
If the Contract is terminated for cause, the Contractor shall be liable for damages as authorized by law,
including, but not limited to, any cost difference between the original contract and the replacement contract,
as well as all costs associated with entering into the replacement contract (i.e., competitive bidding, mailing,
advertising, and staff time).
2.42 TERMINATION FOR CONVENIENCE
Except as otherwise provided in this Contract the Board may, by ten (10) business days written notice,
beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is
so terminated, the Board shall be liable only for payment required under the terms of this Contract for
services rendered or goods delivered prior to the effective date of termination.
2.43 TERMINATION PROCEDURES
After receipt of a notice of termination, except as otherwise directed by the Board, the Contractor shall:
A. Stop work under the Contract on the date, and to the extent specified, in the notice;
B. Place no further orders or subcontracts for materials, services, or facilities related to the Contract;
C. Assign to the State all of the rights, title, and interest of the Contractor under the orders and
subcontracts so terminated, in which case the Board has the right, at its discretion, to settle or pay any
or all claims arising out of the termination of such orders and subcontracts. Any attempt by the
Contractor to settle such claims must have the prior written approval of the Board; and
17
D.
possession as directed by the Board.
Upon termination of the Contract, the Board shall pay the Contractor for any service provided by the
Contractor under the Contract prior to the date of termination. The Board may withhold any amount due as
the Board reasonably determines is necessary to protect the Board against potential loss or liability
resulting from the termination. The Board shall pay any withheld amount to the Contractor if the Board later
determines that loss or liability will not occur.
The rights and remedies of the Board under this section are in addition to any other rights and remedies
provided under this Contract or otherwise provided under law.
2.44 WAIVER
Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach.
Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such
in writing and signed by Authorized Representative of the Board.
18
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
City of Bremerton
PC18-96103-005
I, ________________________________________________, hereby certify:
I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the
City of Bremerton (the Contractor); and
I have also examined any and all documents and records which are pertinent to the Contract, including the
application requesting this financial assistance.
Based on the foregoing, it is my opinion that:
1. The Contractor is a public body, properly constituted and operating under the laws of the State of
Washington, empowered to receive and expend federal, state and local funds, to contract with the State of
Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their
application.
2. The Contractor is empowered to accept the Public Works Board financial assistance and to provide for
repayment of the loan as set forth in the Contract.
3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the
above-described public facilities project or to enjoin the Contractor from repaying the loan extended by the
Public Works Board with respect to such project. The Contractor is not a party to litigation which will
materially affect its ability to repay such loan on the terms contained in the Contract.
4. Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable
to the Contractor.
__________________________________ _____________________________
Signature of Attorney Date
__________________________________
Name
_______________________________________________________________________
Address
19
AGENDA BILL
CITY OF BREMERTON
A10
CITY COUNCIL
SUBJECT: Contract Award to Transblue, Study Session Date: July 11, 2018
LLC for Pedestrian Crossing and Sidewalk
COUNCIL MEETING Date: July 18, 2018
Improvements Project
Department: PW&U
Presenter: Tom Knuckey
Phone: (360) 473-2376
SUMMARY: The work in the Bid Documents includes construction of 8 ADA curb ramps, and
sidewalk repairs at 11 locations. Two bids were received; the lowest was from Transblue, LLC from
Edmonds, Washington. While the bid cost from Transblue for the ADA curb ramps (Bid Schedules A
D)
residential streets indicates significant cost savings can be achieved if these ramps are constructed
using in-house staff. The projected cost savings for the sidewalk repairs is more modest since the
City would contract out the tree removal. In the Bid Documents, staff included language to allow the
City to adjust the project scope. The Staff recommendation is to award the Sidewalk Repair work
only (Schedule E of the contract).
ATTACHMENTS: 1) Bid Tab 2) Contract 3) Sidewalk Repair Site Plans
FISCAL IMPACTS (Include Budgeted Amount): This work is included in the Residential Streets
and Transportation Capital Budgets under ADA Sidewalk Improvements ($90K for curb ramps), and
Sidewalk Abatement ($70K for sidewalk repairs.) The project would combine these funds for
sidewalk repairs.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to award Schedule E of the contract titled Pedestrian Crossing and Sidewalk Improvements
Project to Transblue LLC, and authorize the Mayor to finalize and execute the agreement with
substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
AGENDA BILL
CITY OF BREMERTON
A11
CITY COUNCIL
SUBJECT: Ordinance to amend Bremerton Study Session Date: July 11, 2018
Municipal Code Chapters 2.06 and 2.09; and
COUNCIL MEETING Date: July 18, 2018
Office of
Department: Legal
City Clerk
Presenter: Roger Lubovich/
DeWayne Pitts
Phone: (360) 473-2335/
(360) 473-5296
SUMMARY: The action before Council is to adopt an ordinance amending Chapter 2.09 of the
Bremerton Municipal Code to remove the Office of the City Clerk from the Department of Financial
Services, amending Chapter 2.06 to add the Office of the City Clerk to the Office of City Attorney,
and creating a new Chapter 2.07 entitled Office of City Clerk.
ATTACHMENTS: Proposed Ordinance
FISCAL IMPACTS (Include Budgeted Amount): None
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to pass Ordinance No.____ amending Chapters 2.06 and 2.09 of the Bremerton Municipal
Code and adding Chapter 2.07 relating to the Office of City Clerk.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
ORDINANCE NO. ________
AN ORDINANCE of the City Council of the City of
Bremerton, Washington, amending Chapter 2.09 of the Bremerton
amending Chapter 2.06 of the Bremerton Municipal Code entitled
,and creating a new chapter, Chapter
2.07 relating to the Office of City Clerk.
WHEREAS, the City Council desires to amend certain chapters of Title 2 of the
Bremerton Municipal Code in order to transfer the Office of City Clerk from the Department of
Financial Services to the Office of City Attorney and make other related changes in order to
restructure the provision of certain administrative services of City government; NOW
THEREFORE,
THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 2.09 of the Bremerton Municipal Code entitled
2.09.010 DEPARTMENT CREATED.
There is hereby created the Department of Financial Services.
(a) Divisions. The Department of Financial Services shall consist of the following
divisions, as well as any other divisions established by the City Council:
(1) Finance;
(2) Information Technology; and
(3) Bremerton Kitsap Access Television (BKAT).
(b) Duties. The Director of Financial Services shall be in charge of the Department
of Financial Services and all divisions established thereunder. The duties enumerated in each
division as set forth in this chapter may be reassigned within the Department of Financial
Services at the discretion of the Director of Financial Services for the purpose of achieving work
efficiencies. The Director of Financial Services is also responsible for the management of the
Conference Center operating fund.
2.09.020 DIRECTOR OF FINANCIAL SERVICES AND DIVISION
MANAGERS POSITIONS CREATED AND APPOINTMENT.
(a) Department Director Appointment. There is hereby created the position of
Director of Financial Services who shall be in charge of the Department of Financial Services
and all divisions established thereunder. The Director of Financial Services shall have complete
charge of all of the work of the Department and shall be responsible for hiring and supervising
employees of the Department. The Director of Financial Services shall be appointed by the
Mayor, subject to confirmation by the City Council, on the basis of professional experience,
education and demonstrated knowledge of accepted practices relating to the duties of the
1
Title 2 Amendments
City Clerk
Department. All appointees to the position of Director of Financial Services are terminable at
will by the Mayor as set forth in Chapter 2.05 BMC.
(b) Division Managers Appointment. There are hereby created the positions of
Assistant Director of Financial Services, Information Technology Manager, and Public Access
directly to the Director of Financial Services. The division managers shall be appointed by and
shall serve at the pleasure of the Director of Financial Services, subject to the approval of the
Mayor, on the basis of professional experience, education and demonstrated knowledge of
accepted practices relating to the duties of the division. All appointees to the division manager
-
Services without cause at any time with no notice or hearing unless otherwise provided pursuant
to an applicable rule or regulation, the City Charter, ordinance, or terms and conditions as
approved by the City Council.
2.09.030 FINANCE DIVISION CREATED DUTIES.
There is hereby created the Finance Division for the purpose of performing all finance
and accounting functions of the City of Bremerton. The division shall be managed by the
Assistant Director of Financial Services who shall serve as the City Treasurer. It shall be the
duty of the Assistant Director of Financial Services to:
(a) Be responsi
portfolios.
(b) Assist City administration in budget preparation and monitoring.
(c) Maintain the accounting system in accordance with generally accepted accounting
principles (GAAP).
(d) Maintain the payroll system.
(e) Exercise control of accounts payable and purchasing.
(f) Maintain an inventory of capital assets.
(g) Collect and account for all City Funds.
The Assistant Director of Financial Services shall perform such other duties as the Mayor
and Director of Financial Services may direct or as may be required by law.
2.09.040 OFFICE OF THE CITY CLERK CREATED DUTIES.
There is hereby created the Office of the City Clerk for the purpose of performing all
records management functions of the City. The office shall be managed by the City Clerk. It
shall be the duty of the City Clerk to act as the official records keeper of the City and in such
capacity shall perform those duties as required by the laws of the state, City Charter and City
Code.
The City Clerk shall perform such other duties as the Mayor, or designee, may direct or
as may be required by law. The City Clerk is authorized to appoint one (1) or more Deputy City
Clerks as needed to fulfill the duties of the City Clerk during his or her absence.
2.09.050040 INFORMATION TECHNOLOGY DIVISION CREATED
DUTIES.
There is hereby created the Information Technology Division for the purpose of
performing all information technology operations of the City. The division shall be managed by
2
Title 2 Amendments
City Clerk
the Information Technology Manager. It shall be the duty of the Information Technology
Manager to:
(a) Direct the activities of the Information Technology Division with the
responsibility to provide technological leadership in systems planning, implementation and
support programs.
(b) Direct the development and maintenance of long-range information processing
plans and budgets.
(c) Act as a contact person with user departments responding to and analyzing their
inquiries.
The Information Technology Manager shall perform such other duties as the Mayor or
the Director of Financial Services may direct or as may be required by law.
2.09.060050 BREMERTON-KITSAP ACCESS TELEVISION (BKAT) DIVISION
CREATED DUTIES.
There is hereby created the Bremerton Kitsap Access Television (BKAT) Division for the
purpose of performing all public access television functions of the City. The division shall be
managed by the Public Access Manager. It shall be the duty of the Public Access Manager to
manage the production, programming and operating of the local access television station. The
Public Access Manager shall perform such other duties as the Mayor or the Director of
Financial Services may direct or as may be required by law.
SECTION 2. Chapter 2.06 of the Bremerton Municipal Code entitled "Office
of City Attorney" is hereby amended to read as follows:
Chapter 2.06
OFFICE OF CITY ATTORNEY
2.06.010 DEPARTMENT CREATED.
There is hereby created the Office of the City Attorney which shall serve as the Legal
Department for the City pursuant to the laws of the State of Washington and the Charter of the
City of Bremerton for the purpose of representing the City in all legal matters involving the City.
The office shall be managed by the City Attorney who shall serve as its director, and who shall
be responsible for hiring and supervising employees of the office. The City Attorney shall
oversee and manage the civil and prosecution divisions of the office. The City Attorney shall
also oversee and manage the Office of Risk Management established pursuant to Chapter 2.92
BMC, and the Office of Human Resources established pursuant to Chapter 2.11 BMC, and the
Office of City Clerk established pursuant to Chapter 2.07 BMC.
2.06.020 APPOINTMENT.
The City Attorney shall be appointed by the Mayor subject to confirmation by the City
Council. The resignation of the City Attorney shall be effective upon the acceptance of
resignation by the Mayor.
2.06.030 DUTIES.
To accomplish the directives of the City Charter and requirements of state law, the
functions of the Office of the City Attorney shall include, but not be limited to:
3
Title 2 Amendments
City Clerk
(a) Advise the Mayor, boards, commissions, department heads, Council and its
committees, and other City officials and officers, including the rendering of formal legal
opinions when so requested or when it appears to the Attorney advisable to do so.
(b) Attend all regular and special meetings of the Council, unless excused by the
President of the Council.
(c) Prepare, draft, approve as to form, or supervise the preparation of ordinances,
resolutions, leases, deeds, contracts and/or agreements, and such other and similar instruments as
may be required by the business of the City.
(d) Represent the City in criminal prosecutions in Municipal Court and appellate
courts.
(e) Represent the City in all litigation and administrative proceedings in which the
City is involved either as a plaintiff or defendant, or recommend the appointment of special
counsel therein.
(f) Attend meetings of the Civil Service Commission, pension boards, and other
commissions, boards, or committees required by law, or as directed by the Council, or
represented by the chair of such board or commission.
(g) Facilitate bond issues; provided, this shall not mean the rendering of an opinion
on the validity of the bonds in any case where special bond counsel has been retained by the City
or by any prospective bond buyer.
(h) On request of the Mayor or Council participate in intergovernmental relations
affecting the City.
(i) Keep litigation files and records, and copies of all other official written
communications, and deliver same to successors of the Office of the City Attorney.
(j) Direct or participate in proceedings for the vacation of streets, condemnation of
land, land acquisition, sale of surplus properties, and related legal transactions.
(k) Prepare and administer the budget for the Office of the City Attorney.
(l) Serve as advisor and/or participant in labor negotiations and approve labor
contracts as to form.
(m) Coordinate and assist in obtaining information and legal opinion from Municipal
Research as requested by the Mayor, Council President, or Chair of the Audit Committee.
(n) Prepare and/or approve ballot measures and levies.
(o) Interpret substance, form, and applicability of the City Charter and ensure
consistency of all ordinances, resolutions, and administrative rules therewith.
(p) Manage the Office of Risk Management.
(q) Manage the Office of Human Resources.
(r) Manage the Office of City Clerk.
2.06.040 OUTSIDE EMPLOYMENT.
The City Attorney and Assistant City Attorneys shall not engage in any legal practice
outside the Office of the City Attorney that would interfere or conflict with the duties of this
office.
SECTION 3. Chapter 2.07 of the Bremerton Municipal Code entitled
"Office of City Clerk" is hereby established to read as follows:
4
Title 2 Amendments
City Clerk
Chapter 2.07
OFFICE OF CITY CLERK
2.07.010 OFFICE CREATED.
There is created the Office of City Clerk for the purpose of performing all records
management and other related functions of the City. The Office of City Clerk shall be
administered by the City Clerk.
2.07.020 CITY CLERK - APPOINTMENT - REMOVAL.
(a) The position of City Clerk is created pursuant to Section 20 of the Charter of the
.
(b) Pursuant to Section 21 of the Charter, the appointment of the City Clerk shall be
by the Mayor, subject to confirmation by the City Council. The Mayor may remove the City
Clerk at his or her discretion.
(c) The City Clerk shall report directly to the City Attorney. The City Attorney may
assign the duties of the City Clerk to other employees of the City as necessary to assist the City
Clerk or to
2.07.030 DUTIES.
It shall be the duty of the City Clerk to:
(a) Perform all records management and other related functions of the City.
(b) Act as the official records keeper of the City and in such capacity perform those
duties as required by the laws of the state, City Charter and City Code.
(c) Perform such other duties as the City Attorney may direct or as may be required by
law.
SECTION 4. Severability. If any one or more sections, subsections, or
sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not
affect the validity of the remaining portion of this Ordinance and the same shall remain in full
force and effect.
SECTION 5. Effective Date. This ordinance shall take effect and be in force ten
(10) days from and after its passage, approval and publication as provided by law.
PASSED by the City Council the___________ day of ____________________, 2018.
_________________________________
ERIC YOUNGER, Council President
Approved this ________ day of ________________________, 2018.
_________________________________
GREG WHEELER, Mayor
5
Title 2 Amendments
City Clerk
ATTEST: APPROVED AS TO FORM:
__________________________________ ________________________________
ANGELA WOODS, City Clerk ROGER A. LUBOVICH, City Attorney
PUBLISHED the ________ day of ______________________, 2018.
EFFECTIVE the ________ day of ______________________, 2018.
ORDINANCE NO. ________.
R:\\Legal\\Legal\\Ordinances\\Legal\\BMC Title 2 Amendments - City Clerk.doc
6
Title 2 Amendments
City Clerk
AGENDA BILL
CITY OF BREMERTON
B1
CITY COUNCIL
SUBJECT: Confirm Appointment of James Study Session Date: July 11, 2018
Burchett to Police Chief
COUNCIL MEETING Date: July 18, 2018
Department: Executive
Presenter: Mayor Wheeler
Phone: (360) 473-5266
SUMMARY: Approval of the attached Employment Contract with James Burchett confirms his
appointment as Chief of Police. Pursuant to Section 21 of the City Charter and Section 2.19.020 of
the Bremerton Municipal Code, the Chief of Police shall be appointed by the Mayor, subject to
confirmation by the City Council. Employee is currently serving as Interim Chief of the Police
Department and the Mayor desires to officially appoint him to the position of Chief of Police. BMC
2.50.034 authorizes adjustments to benefits established for professional and management
employees pursuant to an employment contract approved by the City Council.
ATTACHMENTS: Employment Contract
FISCAL IMPACTS (Include Budgeted Amount): There are sufficient funds in the 2018 budget to
cover the cost of this Contract.
STUDY SESSION AGENDA: Limited Presentation Full Presentation
STUDY SESSION ACTION: Consent Agenda General Business Public Hearing
RECOMMENDED MOTION:
Move to confirm the appointment of James Burchett to the position of Chief of Police and authorize
the Mayor to finalize and execute the Employment Contract with substantially the same terms and
conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
EMPLOYMENT CONTRACT
CHIEF OF POLICE
THIS EMPLOYMENT CONTRACT Contract
day of ______________, 2018, by and between the City of Bremerton, Washington, a chartered
first class municipal corporation organized under the laws
RECITALS
WHEREAS, Pursuant to Section 21 of the City Charter and Section 2.19.020 of the
, the Chief of Police shall be appointed by the Mayor,
subject to confirmation by the City Council; and
WHEREAS, Employee is currently serving as Interim Chief of the Police Department
and the City desires to officially appoint Employee as Chief of Police of the Department
consistent with the laws of the State of Washington and the ordinances and policies of the City;
and
WHEREAS, The City agrees to provide the same compensation and benefits that the
Employee receives as a Captain plus a 5% increase in salary, which is what the Employee is
currently receiving while holding the position of Interim Chief, in order to establish fair
compensation and benefits as well as internal equity in transferring from the position of Captain
to Chief of Police; and
WHEREAS, BMC 2.50.034 authorizes adjustments to benefits established for
professional and management employees pursuant to an employment contract approved by the
City Council; and
WHEREAS, The City also desires to establish certain conditions of employment and set
the general working conditions for Employee; and
WHEREAS, Employee agrees to accept the position of Chief of Police of the Police
Department for the City in accordance with the terms and conditions of this Contract, City
ordinances, Police Department Standard Operating Procedures and the City Human Resources
Policies, as Policiesto the provisions of
Section 11;
NOW, THEREFORE, in consideration of the mutual covenants herein contained the
parties agree as follows:
SECTION 1. EMPLOYMENT AND DUTIES
Page 1
A.
The Employee agrees to furnish full time services as defined in
the job description for Chief of Police, which is attached and hereby incorporated as a part of
this Contract
Employee.
B. The parties understand and agree that the Employee will perform independent functions and
responsibilities in the exercise of his field of work.
C. Employee agrees to accept employment and act as Chief of Police for the City and to perform
his duties to the best of his ability in accordance with the highest professional and ethical
standards of the profession and shall comply with all general rules and regulations
established by the State of Washington and the City.
D. Employee shall not engage in any activity that is, or may become, a conflict of interest, as
defined by Washington law, or would be incompatible with the position of Chief of Police, or
enter into a prohibited contract, as defined by Washington law.
SECTION 2. POSITION AND TERM
A. This Contract shall be effective ______________, 2018 and shall remain in full force and
effect until terminated as provided in Section 6 of this Contract. Employee -
employee of the City and shall report to and serve at the pleasure of the Mayor.
B. The Employee acknowledges, understands and agrees that the position he is accepting with
the City is a management/professional position as defined under Chapter 2.50 BMC and is
exempt from Union Membership. It is expressly understood by and between the parties that
the position of Chief of Police is an exempt position pursuant to the Fair Labor Standards
Act. Even though the position Employee is accepting with the City is a
management/professional position, Employee will receive the compensation and benefits he
received as Captain pursuant to the Bremerton Police Management Association collective
bargaining agreement as set forth in Sections 3 and 4 below.
C. The Employee further acknowledges, understands and agrees that the position he is accepting
and that he will not be
covered by the Civil Service system applicable to the Department under RCW 42.12 and
BMC 2.19.020. Employee shall not be entitled to any of the procedural or substantive
protections afforded civil service employees, but the employment relationship between the
City and Employee shall be at will and governed by the terms of this Contract.
D. Nothing in this Contract
terminate this Contract, with or without cause, at any time, subject only to the provisions set
forth in Section 6 of this Contract, the laws of the State of Washington, City ordinances, and
City Polices.
Page 2
E. Nothing in this Contract shall prevent, limit or otherwise interfere with the right of the
Employee to resign and terminate this Contract at any time, subject only to the provisions set
forth in Section 6 of this Contract.
F. So long as this Contract remains in effect, Employee agrees to remain in the exclusive
employment of City and shall neither accept other employment nor become employed by any
derivations of that term as used in the preceding sentence shall include employment by
another legal entity or self-employment, but shall not be construed to include occasional
and with the advance approval of the Mayor.
SECTION 3. COMPENSATION
A. The Employee and City agree that compensation for services rendered under this contract
shall begin at Step 5 of the Police Management pay schedule, plus 9% longevity and a 5%
increase in salary for , with an annual rate of approximately One Hundred Fifty-
Nine Thousand, Six Hundred Forty-Nine Dollars, and Thirty-One Cents ($159,649.31).
B. The parties agree that Employee shall receive the same cost-of-living adjustment (if any) that
applies to the Bremerton Police Management Association collective bargaining agreement.
SECTION 4. BENEFITS
A. Medical.
employee assistance) plans in accordance with the terms then applicable to other non-
represented employees pursuant to BMC 2.50.070.
B. Life Insurance. The City shall pay one hundred percent (100%) of the premium for term life
insurance in the amount of Two Hundred Thousand Dollars ($200,000.00). The Employee
shall name the beneficiary(ies) of said term life insurance.
C. Disability Insurance. The City shall provide long-term disability insurance for Employee
with terms equivalent to that which applies to Bremerton Police Management Association
employees.
D. City Vehicle. Employee shall have the use of a Police Department vehicle. In the event that
Employee uses his own vehicle for City business-related trips, the City shall reimburse
Employee for such use in accordance with the then-current IRS approved mileage rate.
E. Additional Benefits. Employee shall receive certain benefits as provided pursuant to the
Bremerton Police Management Association collective bargaining agreement, in lieu of
similar benefits, if any, provided to Professional and Management employees, as follows:
1. Education pay;
2. Management Certification pay;
3. HRA/VEBA contribution;
Page 3
4. Sick leave accrual, carry-over and cash out; and
5. Vacation accrual, carry-over and cash out.
F. Furlough Program. Notwithstanding the terms of this Contract
salary, the Employee shall participate in any furlough program that applies, from time to
time, to City non-represented employees.
SECTION 5. RETIREMENT AND DEFERRED COMPENSATION PLANS
A. Employee shall be enrolled in the Law Enforcement and Fire Fighters Plan of Washington
participation in said system, and Employee shall be responsible for paying all legally
required e
B. yment to LEOFF described above, City shall pay an amount equal to
five and one-half (5.5%) percent of annual base salary into an Internal
Revenue Code Section 457 plan or similar deferred compensation program to be paid by the
City in acco
SECTION 6. RESIGNATION, TERMINATION AND SEVERANCE PAY
A.
follows:
1. Without Cause. the City may terminate his
employment with the City
pursuant to BMC 2.50.090. If terminated without cause, Employee shall receive three (3)
2. For Cause. The Employee may be terminated from employment with the City for cause,
without notice, and Employee understands, agrees and accepts that no severance pay shall
be paid.
3. By Employee. In the event that the Employee shall terminate his employment with the
the effective date of said termination in order to afford the City a reasonable opportunity
to find a replacement. The parties further agree that in the event a replacement is found
that they may, in good faith, negotiate an earlier termination date.
B. The following reasons shall constitute grounds to terminate this Contract
without payment of the severance provided in Subsection 6.A.2 above:
1. A material breach of this Contract or the repeated neglect by Employee to perform the
duties Employee is required to perform under this Contract, either of which continues
after written notice and a 30-day cure period, or which occurs within one year following a
prior written notice and cure opportunity under this Subsection 6.B.1;
Page 4
2. Conviction of any criminal act relating to employment with the City or otherwise
involving dishonesty, moral turpitude or physical violence;
3. Conduct, relating to City employment, which, while not criminal in nature, violates the
City Policies or other reasonable standards of professional and personal conduct in some
substantial manner injurious to the business or reputation of the City;
4. Conviction of any felony offense;
5. Mental or physical unfitness that prevents the Employee from carrying out the essential
functions and/or duties of the position of Chief of Police; and
6. Loss of law enforcement commission.
C. As a condition to eligibility to receive any severance benefits under this Section 6, the
Employee shall sign, as of the date immediately following his separation and in a form
provided by the City, a legal release of any and all claims of any kind against the City
(except for earned and unpaid wages and benefits as of the termination date, and except for
severance benefits hereunder and COBRA benefits), and agreeing neither to bring any
litigation nor to make any written or oral communications that are harmful to the reputation
of the City or any elected or unelected official or employee of the City.
D. It is understood that after notice of termination or resignation in any form, Employee and the
City will cooperate to provide for an orderly transition. Specific responsibilities during such
transition will be specified in a written separation agreement. If Employee is involuntarily
terminated by City
professional reputation if made public, Employee may request, and if requested, Employee
shall be given an opportunity for a name clearing hearing with the Mayor.
E. This Contract shall be terminated upon the death or permanent disability of the Employee,
which for the purposes of this Contract shall mean that Employee is incapacitated and unable
to perform his essential duties, with or without reasonable accommodation, for at least the
period of time prescribed by the terms of the Long-Term Disability benefit plan that then
covers him.
SECTION 7. FLEXIBLE HOURS OF WORK
It is recognized that Employee must devote a great deal of time outside the normal office hours
on business for City, and to that end Employee shall be allowed to establish an appropriate work
schedule that allows time away from the office during normal office hours. It is expected that
Employee will work at least forty (40) hours per week. The parties recognize that Employee will
be exempt from the provisions relating to overtime payment and compensatory time under the
Fair Labor Standards Act.
SECTION 8. PERFORMANCE EVALUATION
Page 5
The City shall review and evaluate the performance of Employee on an annual basis.
Performance evaluations shall be conducted by the Mayor. Employee shall be provided with a
written copy of the evaluation.
SECTION 9. PROFESSIONAL DEVELOPMENT
The City shall budget and pay for the professional dues and subscriptions of Employee and
associated costs (including travel, lodging and meal expenses) reasonably necessary for his
continuation and full participation in regional, state and local associations and organizations that
are necessary and desirable for his continued professional participation, growth and advancement
to better serve the interests of the City.
SECTION 10. CIVIC INVOLVEMENT
City recognizes the desirability of representation in and before local and regional civil and other
organizations, and Employee is authorized to become a member of such civic clubs or
organizations he deems necessary or desirable in order to maintain awareness of community
attitudes and ideas. City shall pay all expenses for membership and participation in up to three
such Bremerton organizations. Employee shall report to City on each membership that he has
SECTION 11. OTHER TERMS AND CONDITIONS OF EMPLOYMENT
A. All provisions of City ordinances, regulations, rules and City Policies as they now exist or
hereafter may be amended, shall also apply to Employee as they would to other employees of
the City, except as may be specifically agreed upon herein.
B. If any term of this Contract differs from City Policies, the terms of this Contract shall take
precedence.
SECTION 12. MISCELLANEOUS PROVISIONS
A. Paragraph Headings. The headings in this Contract are inserted for convenience and
identification only and are in no way intended to describe, interpret, define or limit the scope,
extent or intent of this Contract or any of the provisions of the Contract.
B. Provisions Severable. Every provision of this Contract is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity of the remainder of this Contract.
C. Rights and Remedies. The rights and remedies provided in this Contract are cumulative, and
the use of any one right or remedy by any party shall not preclude nor waive its rights to use
any or all other remedies. Any rights provided to the parties under this Contract are given in
addition to any other rights the parties may have by law, statute, ordinance or otherwise.
Page 6
D. Entire Agreement. This Contract constitutes the entire agreement between the parties and
both parties acknowledge that there are no other agreements, written or oral, that have not
been fully set forth in the text of this Contract.
E. Governing Law and Dispute Resolution. This Contract shall be construed in accordance with
the laws of the State of Washington. Venue for any dispute arising hereunder shall be in
Kitsap County Superior Court. However, before any lawsuit may be filed by either party, the
Employee and City must agree to engage in non-binding mediation, in which the expense of
the mediator will be paid by the City. Other than the cost of the mediator, each party shall
bear its own expenses and attorney fees in any dispute, including mediation or litigation.
F. Preparation of Contract. No presumption shall exist in favor of or against any party to this
Contract as a result of the drafting and preparation of this document.
G. No Waiver. No waiver of any breach by either party of the terms of this Contract shall be
deemed a waiver of any subsequent breach of the Contract.
H. Counterparts. This Contract may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and
the same document.
I. Amendment. No amendment of this Contract shall be effective unless the amendment is in
writing, signed by each of the parties.
J. Notices. All notices and demands of any kind which either party hereby may be required or
desires to serve upon the other party under the terms of this Contract shall be in writing and
shall be served upon such other party by personal service, or by leaving a copy of such notice
or demand at the address hereinafter set forth, whereupon service shall be deemed complete,
or by mailing a copy thereof by certified or regular mail, airmail if the address is outside the
state in which the same is mailed, postage prepaid, with return receipt requested, addressed
as follows:
City: Employee:
City of Bremerton James Burchett
c/o Human Resources __________________________
th
345 6 Street, Suite 100 __________________________
Bremerton, WA 98337
In case of service by mail, it shall be deemed complete on the day of actual delivery as
receipt or at the expiration of the third
day after the date of mailing, whichever first occurs. The addresses to which notices and
demands shall be delivered or sent may be changed from time to time by notice served as
hereinabove provided by either party upon the other party.
Page 7
K. Appropriations. No commitment of public funds will be made prior to the approval of this
Contract. The terms of this Contract are contingent upon sufficient appropriations being
made by the City Council for the performance of this Contract. If sufficient appropriations
are not made, this Contract shall terminate subject to the conditions subsequent concerning
notice and severance payment being given by the City to Employee as provided in Section 6
of this Contract. Termination pursuant to the terms of this Contract shall not result in any
sufficient appropriations are available shall be accepted by Employee and shall be final.
IN WITNESS WHEREOF, the City has caused this Contract to be signed and executed on its
behalf by the Mayor, and Employee has signed and executed this Contract, both in duplicate, as
of the day and year first above written.
CITY OF BREMERTON EMPLOYEE
By___________________________ By___________________________
Greg Wheeler, Mayor James Burchett
Date: Date:
APPROVED AS TO FORM: ATTEST:
Roger A. Lubovich, City Attorney City Clerk
R:\\Legal\\Legal\\Contracts\\HR\\Chief of Police Employment Contract3.docx
Page 8