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HomeMy WebLinkAbout07/18/2018 AGENDA PACKETCITY COUNCIL 345 6"' Street, Suite 100, Bremerton, WA 98337 - Phone (360) 473-5280 JULY 18, 2018 CITY COUNCIL MEETING AGENDA 1. BRIEFING: 5:00 — 5:30 P.M. in COUNCIL CONFERENCE ROOM 603 A. Review of Agenda B. General Council Business 2. CALL TO ORDER: 5:30 P.M. in FIRST FLOOR CHAMBERS A. Pledge of Allegiance B. Invocation 3. FIREFIGHTER PROMOTION & SWEARING-IN CEREMONY 4. MAYOR'S REPORT • Announcement of the Release of 2019 Request for CDBG Funding Proposals by Sarah Achaoui, City of Bremerton Community Development Block Grant Administrator 5. PUBLIC RECOGNITION 6. CONSENT AGENDA A. Claims and Check Register B. Minutes of Meeting — June 20, 2018 C. Minutes of Special Meeting — June 25, 2018 D. Minutes of Study Session — July 11, 2018 E. Confirm Appointment of Jeffery Flood to the Bremerton Housing Authority Board of Commissioners F. Eastside Wastewater Treatment Plant Outfall Lease Agreement with WA State Department of Natural Resources G. Purchase of a replacement Ford Police Interceptor from Columbia Ford of Longview, WA; and authorize Budget Amendment to ERR Fund 510 H. Ordinance No. 5350 to amend Bremerton Municipal Code Chapters 2.06 and 2.09; and to create new Chapter 2.07 entitled "Office of City Clerk" I. Confirm Appointment of James Burchett to Police Chief 7. GENERAL BUSINESS A. Professional Services Agreement with BMcConsulting LLC for Lobbying Services B. Interagency Agreement with Washington State Patrol for Fire Service Mobilization C. Disney "Meet Me at the Park" Play Spaces Grant Acceptance; Memorandum of Understanding with the National Recreation & Park Association to administer the grant for the Manette Park Renovation Project; and authorize Budget Amendment to the Parks Capital Construction Fund D. Purchase of Playground Equipment from Landscape Structures, Inc. for the Manette Park Renovation Project E. Public Works Trust Fund Loan Funding Agreement for the Ostrich Creek Culvert Improvements Project F. Public Works Trust Fund Loan Funding Agreement for the Pine Road Basin Watershed Storm Sewer Improvements Project G. Contract Award to Transblue, LLC for Pedestrian Crossing and Sidewalk Improvements Project 8. COUNCIL MEMBER REPORTS 9. ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING ® Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special accommodations please contact the City Clerk at (360) 473-5323 at least 24 hours prior to the meeting. CAPTAIN PROMOTION OATH OF OFFICE STATE OF WASHINGTON COUNTY OF KITSAP I, Ricardo Valdez, solemnly swear that I am a Citizen of the United States and of the State of Washington; That I will support the Constitution of the United States and the Constitution and Laws of the State of Washington; That I will continue to abide by the Code of Ethics and Conduct as set forth in the Fire Department Policy Manual; And will, to the best of my judgment, skill and ability, truly, faithfully, diligently and impartially perform the duties of the newly promoted position of Captain, in and for the City of Bremerton, Kitsap County, Washington, as such duties are prescribed by law. Ricardo V Subscribed and sworlo b fib ( ) this 18th day of ,Lulu. 2018 . James 96cter, Bremerton Municipal Court Judge (Sign re & Title of Official Administering the Oath) �S tSd1S� L�e.�l LTA �So LIEUTENANT PROMOTION OATH OF OFFICE STATE OF WASHINGTON COUNTY OF KITSAP I, Jeff Prichardsolemnly swear that I am a Citizen of the United States and of the State of Washington; That I will support the Constitution of the United States and the Constitution and Laws of the State of Washington; That I will continue to abide by the Code of Ethics and Conduct as set forth in the Fire Department Policy Manual; And will, to the best of my judgment, skill and ability, truly, faithfully, diligently and impartially perform the duties of the newly promoted position of Lieutenant, in and for the City of Bremerton, Kitsap County, Washington, as such duties are prescribed by Jaw. at�wo Vto We me this 18thday of.�Iuly. 2018 . zfmi es Docter, Bremerton Municipal Court Judge -I- (Signature & Title of Official Administering the Oath) FIRE FIGHTER/EMT OATH OF OFFICE STATE OF WASHINGTON COUNTY OF KITSAP I, Rickey Muttart, solemnly swear that I am a Citizen of the United States and of the State of Washington; That I will support the Constitution of the United States and the Constitution and Laws of the State of Washington; That I will abide by the Code of Ethics and Conduct as set forth in the Fire Department Policy Manual; And will, to the best of my judgment, skill and ability, truly, faithfully, diligently and impartially perform the duties of the position of Firefighter/EMT, in and for the City of Bremerton, Kitsap County, Washington, as such duties are prescribed by law. Ca Rickey Muttart Subscribed and sworn to me s qday of Iuly . 2018 . C James Wer' Bremerton Municipal Court judge (Signat I Title of Official Administering the Oath) N11,� 11)��TV FIRE FIGHTER/EMT OATH OF OFFICE STATE OF WASHINGTON COUNTY OF KITSAP I, Evan Markovichsolemnly swear that I am a Citizen of the United States and of the State of Washington; That I will support the Constitution of the United States and the Constitution and Laws of the State of Washington; That I will abide by the Code of Ethics and Conduct as set forth in the Fire Department Policy Manual; And will, to the best of my judgment, skill and ability, truly, faithfully, diligently and impartially perform the duties of the position of Firefighter/EMT, in and for the City of Bremerton, Kitsap County, Washington, as such duties are prescribed bylaw. Evan Markovich Subsc6hW-arkd sworn t�efire�ne this 1 8t day of I 2Q1 )cter, Bremerton Municipal Court Judge & Title of Official Administering the Oath) FIRE FIGHTER/PM OATH OF OFFICE STATE OF WASHINGTON COUNTY OF KITSAP I, Kurt Van Ness, solemnly swear that I am a Citizen of the United States and of the State of Washington; That I will support the Constitution of the United States and the Constitution and Laws of the State of Washington; That I will abide by the Code of Ethics and Conduct as set forth in the Fire Department Policy Manual; And will, to the best of my judgment, skill and ability, truly, faithfully, diligently and impartially perform the duties of the position of Firefighter/PM, in and for the City of Bremerton, Kitsap County, Washington, as such duties are prescribed by law. Kurt Van Ness Subscribed and sworn ore this 1 � day of lulu . 2018 . James wter"Cfremer—ton. 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Rtcbw,i -11153M d -7 f 1 06 ift� July 18, 2018 Jack Stanfill, President — Registered Agent 2461 Northlake Way NW Bremerton WA 95312 Bremerton City Council Norm Dicks Bldg. 6th Street, Bremerton WA RE: Department of Ecology Revised Assessment for Gorst Watershed, August 19, 2013 Dear Bremerton City Council: Please find attached documents from the updated results of the Washington Department of Ecology's Revised Assessment for Gorst Watershed, August 19, 2013. The upper 500 acres of the Heins Basin, or which 450 acres is the entire "southern portion" of Ueland Tree Farm, was originally omitted from the Gorst Watershed Analysis in 2012. This was a specific portion of the Heins Basin property in which the Washington Department of Ecology wrote on page 6 of the Revised Analysis, "Permitted uses must preserve forest cover and NOT RESULT IN CONVERSION." The WDOE added Unit 21 to the Gorst Watershed which resulted from their Revised Assessment for Gorst Watershed. + NOT FOR CONVERSION --THIS LAND 1S.IOTTO Bl_ USED FOR MINERALS, NEIGHBORHOODS, OR �. ANYTHING ELSE IN DOE'S UNIT 21, %hHICH INCLUDES HEINS AND ALEXANDER LAKES. It has come to the attention of the Chico Creek Task Force that Bremerton erroneously zone approximately 40 acres from 1 dwelling per 20 acres to 1-5 dwellings per acre. This hilltop property is in the Bremerton Watershed in an EPA Green Zone. We ask that Bremerton City Council to recognize and implement the DOE's Revised Gorst Assessment and rezone the approximately 40 acres to NOT approve any CONVERSION. The full 25 page Ecology Revised Assessment For Gorst Watershed, August 19, 2013 is available to download from the Internet. Thank you, Jack Stanfill, President -Registered Agent Chico Creek Task Force 2461 Northlake Way, NW Bremerton WA 98321 Table 1 and Figure 5 present the final integrated results of the water flow, habitat and sediment models, Figure 5. Management Zones for Gorst Watershed, These zones Represent the integration of the water flow, water quality (sediment) and habitat assessments. See Table 1 for the summary of results for each assessment unit. AT t- d I%.t^V ?I! j ► ;)IC ,i:1 vk, It. i ')v, in 0, 1 lot, Ft o, tv I I �,, -T" Zo-,& ook,, A JI'd fi,-iOv,,ry (1, VI-1011FItl '111 T I, t I! It II'i I I ` I A4 "1 f) t ; j 1 1, t 1Y it Ij Ot4'E C KQ A,,'• }'1 at ,ki• 0 c -k 1.1 ril t. J."! III,- LID jilt 'd -,A A - illi ltci t dtfu( fit 1,15ort ti l!l !)!lift I", rk; ;'.T"AAPOI) R k: _.. I l• I t ) p WDOE Revised Assessment for Gorst Watershed Page 6 August 19, 2013 To: Allison Daniels, City of Bremerton; Lisa Grueter, Berk Consultants; Bill Webb, AECDM Consulting From: Stephen Stanley, Susan Grigsby and Kelly Slattery; Washington Department of Ecology RE: Final Revised water flow and water quality assessment for Gorst watershed August 19, 2013 The purpose of this revised assessment was to add a new assessment unit (#21, Heinz Creek), to the northern portion of the Gorst watershed. Based on citizen input during the current comment period for the Gorst Subarea Master Plan EIS, the City and its consultants in conjunction with the County and Department of Ecology determined that a portion of the northern watershed boundary required adjustment. The existing boundaries for the watershed assessment are based on the Department of Fish and Wildlife Salmon and 5teelhead Habitat Inventory Assessment Program (SSHIAP - 1995) work. Because this work is based on spacial data that approximates stream locations at a scale of 1:24000 and greater, it can be subject to errors especially in areas that are relatively flat at the headwaters for two or more watersheds. The subject area in question is a large flat saddle, part of which drains north into the Chico Creek watershed and the other part south Figure 1— Boundary adjustment !dotted red line to include Heinz Lake & tributary for Heinz Creek sub -watershed. Gorst Watershed to south in shaded "green" area. into the Gorst Creek watershed. Recent field work by the City determined that the current boundary for the Heinz Creek sub -watershed was too far south. Upon additional review of topography and discussion with city officials with expert, long term knowledge of this area, the Gorst watershed boundary was moved north and new assessment unit for Heinz Creek was created. This new assessment unit incorporates Heinz Lake, a tributary immediately to the west of the lake and a riparian wetland associated with Heinz Creek (Figure 1 and Figure 2). WD0E Revised Assessment for Gorst Watershed August 19, 2013 Page 1 Once the new assessment unit was created the assessment model for water flow and water quality was run the week of July 14`x`, 2013. The results of the revised assessment are summarized below; these results are an addendum to the watershed assessment produced by Parametrix and not a substitute for the detailed analysis of and recommendations for the overall watershed. Summary of Assessment Results 0 Figure 2. Assessment units for Gorst watershed Study Area and Heinz Creek Assessment Unit #21 The addition of the Heinz Creek assessment unit (AU 21) increased the total number of assessment units to 21. This has two effects on the overall assessment results: 1) slightly increases the size of the quartile bins for models 1 and 2 of the water flow and water quality results; and 2) introduces new data and results against which the ether 20 assessment units are evaluated. As a consequence, there can be shifting of ranking of priority for protection, restoration and development. The results for the new Heinz Creek assessment unit are presented below. ileiiiz Creek Results The overall water flow results indicate that Heinz Creek has a low importance for water flow and a low degree of degradation. This results in a management category of "Conservation" which suggests permitting land use activities that protect and maintain those water flow processes important to this AU. Recharge is the most important water flow process for the Heinz Creek watershed due to the presence of high permeability deposits. Because Heinz Creek AU is located in the headwaters, its recharge process most likely contributes to and supports areas of downstream discharge which helps maintain low flows in Gorst Creek. Activities which reduce infiltration and recharge, such as buildings and WD0E Revised Assessment for Gorst Watershed August 19, 2013 Page 2 impervious surfaces should be minimized and located outside of these high permeability deposits. Though not as significant in size, existing areas of storage should also be protected in this AU since surface storage in headwater watersheds have a significant effect on maintaining the normal range of downstream flows (e.g. less flooding and erosion). r,� l:. nrr44:a LM.? e Highest Prctection P rot eclm n Pfctecticnr`R estoratiCn C on se rva do n Highest Restoration. Rests ra tic in Restcratic NO evelopment C evelop me ntlR estora tic n The water quafity assessments indicate that the Heinz Creek AU has a high potential for export of sediment due to the presence of outwash deposits. Export of sediment from a headwaters AU can have adverse effect on the entire stream ecosystem including reduction in the structural complexity of streams due to alteration of erosion and deposition patterns. Additionally, sediment can clog spawning gravels and negatively affect water quality due to the increased transport of phosphorous and increase in algae blooms. Results also indicate that metals and pathogens could potentially be exported from this AU. Figure 3. overall Results for Water flow Assessment. Results indicate that Heinz Creek AU has a "conservation" management category. This result does not represent the overall integrated result for the assessments, which is presented in Table 1 and Figure 5. WDOE Revised Assessment for Gorst Watershed }T August 19, 2013 Page 3 GRAVEL MINE A (CONCRrzTE BATCH PLANT) GRAVEL MINE 8 Lpilmllilf;l QUARRY SOURCE: DAIS. 2001 (Aerall); Usap Co, 2008; Parametrix, 2008; WDNR, 2008; VVSDOT, 1997, Railroad Spur if in this Area vfi Cb AHI rn M Q. N 1,01101 2.000 Ueland .208407 Figure 1-2 Site Map with Project Elements Kitsap County, WA A Lpilmllilf;l QUARRY SOURCE: DAIS. 2001 (Aerall); Usap Co, 2008; Parametrix, 2008; WDNR, 2008; VVSDOT, 1997, Railroad Spur if in this Area vfi Cb AHI rn M Q. N 1,01101 2.000 Ueland .208407 Figure 1-2 Site Map with Project Elements Kitsap County, WA , `0 %W wf LU C? 4 w vi `}" �t i M tn a) n a - L v _0 0 .4 c UO ro tn Cv vi +a � c e -0 � (U L v Ul 4-J o N tA cr i cu Ec (Uo Ln 4, tW CL (U a) 0 Q v v 4-1 Com. vU u.c rA cv m 11 vi +a _ Q.l Ul Ln cr i 4-; 0 (U a) C � E s� C '` -� LZ. a (U -5 - LIN o >�' . .x z o a -1 m u m � Q) Lr a Cltn v f� 3 v} .-C a -.j a10 N to C tS a) '� w f E _ a C c as E U Ln cv Ln _C z oCL 4 --Ln r) aj 4-1 0m ® ri O u � aL bD tn E ca a� Q v> G m m 11 KITSAR COUNTY CITY DE BREMERTON 'ti6t!wt''Cree-k'WAt-e-esh'ed'"'- Characterization & Framework Plan City Council Dearing - December 2013 APPENDIX B. REVISED ASSESSMENT FOR GORST WATERSHED SUBJECT: Claims & Check Register SUMMARY: AGENDA BILL CITY OF BREMERTON CITY COUNCIL Study Session Date: COUNCIL MEETING Date: Department: Presenter: Phone: N/A July 18, 2018 Financial Services Angela Woods (360) 473-5323 Approval of the following checks and electronic fund transfers: 1) Check #'s 379819 through 380229 and EFT's 18659 through 18761 in the amount of $5,119,670.16. 2) Regular Payroll for the pay period ending June 15, 2018 in the amount of $833,971.80. 3) Regular Payroll for the pay period ending June 15, 2018 in the amount of $724.04. 4) Regular Payroll for the pay period ending June 30, 2018 in the amount of $33,100.36. 5) Regular Payroll for the pay period ending June 30, 2018 in the amount of $835,699.08. 6) Regular Payroll for the pay period ending June 30, 2018 in the amount of $52,614.13. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): STUDY SESSION AGENDA: x❑ Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to approve the consent agenda as presented. COUNCIL ACTION: ❑ Approve Form Updated 01/02/2018 ❑ Deny ❑ Table ❑ Continue ❑ No Action AGENDA BILL CITY OF BREMERTON CITY COUNCIL 6B SUBJECT: Minutes of Meeting — June 20, Study Session Date: N/A 2018 COUNCIL MEETING Date: July 18, 2018 Department: City Council Presenter: Council President Phone: (360) 473-5280 SUMMARY: The Minutes of Meeting held on June 20, 2018 are attached. ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: ❑ Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to approve the June 20, 2018 Meeting Minutes as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/02/2018 DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, June 20, 2018 The weekly meeting of the City Council of the City of Bremerton was called to order Wednesday, June 20, 2018, at 5:00 PM In Council Conference Room 603 of the NORM DICKS GOVERNMENT CENTER, 345 6t" Street, Bremerton, Washington, with Council President Eric Younger presiding. Council Members present were Richard Huddy, Michael Goodnow, Tony Hillman, Kevin Gorman, Leslie Daugs, and Pat Sullivan. Also present were City Attorney Roger Lubovich; Legislative Assistant and Acting City Clerk Lori Smith; and Kevin Matthew, Information Services Manager. A COUNCIL BRIEFING was held to discuss General Council Business at 5:00 PM in the Council Conference Room. At 5:30 PM the meeting moved to the Meeting Chambers. The Pledge of Allegiance was led by Council Member Pat Sullivan followed by the invocation provided by Major Scott Ramsey of the Salvation Army. MAYOR'S REPORT— Mayor Wheeler... • Encouraged any local family interested in hosting Kure, Japan Exchange Student Khoka from July 23 to August 19 to contact his office at (360) 473-5266 for more information; • Discussed the recent Kitsap Transit Retreat he attended with Council Member Leslie Daugs; • Explained that he was currently working with Kurt Weist, Bremerton Housing Authority Executive Director to find available property in the City to locate low-income housing; • Requested the Department of Community Development to add "Building Heights", "Parking", and "Affordable Housing" during the next Comprehensive Plan & Zoning Code Amendments; and • Lastly, stated he was strongly opposed to the zero tolerance policy currently being implemented with persons hoping to migrate to the United States, and strongly encouraged people to vote. President Younger announced that later in the meeting under Item 7B, the City Council will be conducting a public hearing on the City's "Multi -Family Tax Exemption" (MFTE) program. The Council understands that there may be citizens in the audience that are interested in providing comments on a recently approved proposed 22 -story building at 6`" & Washington on the Eagle's site. This project was approved consistent with the City's adopted regulations in the Downtown Sub -Area Plan. The public hearing tonight about the Tax Exemption is a separate issue from building heights, and therefore comments regarding this project approval should be made during Public Recognition, and will not be accepted during the hearing about the MFTE. President Younger further established that if anyone is interested in finding out more about the development at 6` & Washington, they can contact the Project Manager Ryan Crater, at (360) 473- 5279; and announced the appeal period for the approval of the project ends on Friday June 22. PUBLIC RECOGNITION Jack Stanfill with the Chico Task Force, discussed the feasibility study for the walking trail in the Ueland Tree Farm, and stated that a Veterans Park is needed in the West Bremerton area near the 300 new homes planned on Werner Road and the 120 new homes planned near Winco. Everett Clark talked about the Juneteenth Celebration, encouraged the community to learn more about it, and invited everyone to the Juneteenth Reception to be held in the lobby outside the Chambers immediately following the Council Meeting tonight. Regina Hill talked about the Juneteenth Celebration and also hoped more persons would learn about it, thanked the Public Works Committee for reading the Juneteenth Proclamation, and in recognition of her recent passing, asked for a moment of silence for Dr. Claudia Thomas, a former Bremerton School Superintendent. City Council Reg. Mtg. Minutes Wednesday, June 20, 2018 Page 2 of 6 Aaron Williams, local musician, thanked the Salvation Army for their efforts in feeding the homeless and mentioned that if an affordable venue is found, he would like to organize a benefit concert. Lori Wheat provided comments against the proposed 22 -story Eagle Tower Apartment Project. Kim Siebens, Without a Voice, promoted the Housing First Program for those on fixed -incomes. Jerry Laws mentioned that he and his wife recently started a new business with automated massage machines, and hoped someone would contact him if they have suggestions on how he could be more involved in the community. Tim De La Cruz, Founder of "Hands on Entertainment', thanked Regina Hill for inviting him and other persons here to attend the Council Meeting tonight; and would like to offer his help with any events organized to help the homeless. Sherry Felice Lincoln expressed her concern about the planned location for the proposed 22 -story Eagle Tower Apartment Project due to its close proximity to the water, especially in the event of an earthquake. Collins Stanford Clark Hill thanked the community for their support of the Juneteenth "Rebooted" events; and invited those in attendance tonight to attend the reception following the Council Meeting. Daneen Louise Stith asked for the community to support housing for the homeless; and to consider placing housing for the homeless in the former Albertson's parking lot. Dawn Michele Wilson hoped a solution can be found to address the housing needs of homeless families. Jerry McDonald asked for an update on the Navy Burwell Pedestrian Tunnel Project. Mr. Martin answered that the project would be completed by mid-August... of this year. President Younger invited Community Development Director Andrea Spencer to provide clarification on the Building Permit Process and the Design Review Board Process for the proposed 22 -story Eagle Tower Apartment Project; and to also establish that the City Council has no authority to change the project at this point in the process. CONSENT AGENDA 5A — Claims & Check Register: Check Numbers 379530 through 379818 and EFT -V18606 through EFT- V18658 in the amount of $3,924,349.35; and Regular Payroll (Supplemental) for the pay period ending May 31, 2018 in the amount of $440.69 5B— Minutes of Meeting — June 6, 2018 5C — Minutes of Study Session — June 13, 2018 5D— Confirm Reappointment of Bo Palmer to the Housing Authority Board of Commissioners 5E— Confirm Appointment of Charles Henderson to the CDBG Project Review Committee 5F — Confirm Appointment of Patricia Iolavera to the CDBG Project Review Committee 5G — Confirm Appointment of Patricia Iolavera to the Citizen's Commission on Council Salaries 5H — Confirm Appointment of Deborah McDaniel to the Citizen's Commission on Council Salaries City Council Reg. Mtg. Minutes Wednesday, June 20, 2018 Page 3 of 6 51— Change Order No. 1 with Allen Shearer Trucking & Landscape Supply for the Gateway Project 5J — Resolution No. 3308 to authorize (3) Grant Applications with the WA State Recreation & Conservation Office for 1) the Warren Avenue Neighborhood Park Renovation; 2) the Warren Avenue Playfield Lighting & ADA Improvements; and 3) the Kitsap Lake Fishing Dock & Park Renovation 5K— Public Works Agreement with Better Boats, Inc. (dba Lee Shore Boats) to Repower the existing Argus Fire Boat There were no questions or comments from the public... President Younger, on behalf of the City Council, thanked Mr. Henderson and Ms. Iolavera for their willingness to serve. 06:14:53 M/S/C/U (Gorman/Huddy) Move to approve the CONSENT AGENDA as presented GENERAL BUSINESS 6A — COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) AWARD; AGENCY SERVICE AGREEMENT WITH PUBLIC WORKS; AND BUDGET ADJUSTMENT FOR QUINCY SQUARE ON 4TH STREET PROJECT: Chal Martin, Public Works & Utilities Director, summarized that the Grant Agreement was for the use of CDBG funds for the Quincy Square on 4th Street Project, which is a capital project that will revitalize a one -block segment of 4th Street from Washington Avenue to Pacific Avenue with new sidewalks, roadway, lighting, and architectural elements that will create a modern walkable streetscape. Quincy Square on 4th is envisioned as a regionally significant destination for events such as street fairs and musical acts. The CDBG grant will fund a portion of the Architectural and Engineering Plans for the future construction of the improvements. A state appropriation will fund the rest of the design phase of the project. There were no comments from the public... 06:17:26 Motion was made by Goodnow and seconded by Gorman... Comments were made by Gorman... 06:18:34 M/S/C/U (Goodnow/Gorman) Move to authorize Community Development Block Grant for the Quincy Square on 4th Street; authorize the Mayor to finalize and execute the Grant Agreement with substantially the same terms and conditions as presented; and further authorize a budget adjustment to $300,000 in expenditures and $300,000 in grant revenue in the Transportation Capital Projects Fund. 6B —WA STATE DEPARTMENT OF COMMERCE FUNDING AGREEMENT FOR QUINCY SQUARE ON 4TH STREET PROJECT: Chal Martin, Public Works & Utilities Director established that this Grant Agreement was for the use of state funds appropriated for the Quincy Square on 4th Street Project, with the funds to be managed and distributed by the State Department of Commerce. The state appropriation will fund a portion of the Architectural and Engineering Plans for the future construction of the improvements. A CDBG capital grant will fund the rest of the design phase of the project. There were no comments from the public 06:19:16 M/S/C/U (Good now/Su llivan) Move to authorize the state appropriation for the Quincy Square on 4th Street; authorize the Mayor to finalize and execute the funding agreement with Commerce with substantially the same terms and conditions as presented; and further authorize a budget adjustment to $250,000 in expenditures and $250,000 in state revenue in the Transportation Capital Projects Fund. City Council Reg. Mtg. Minutes Wednesday, June 20, 2018 Page 4of6 6C — ORDINANCE NO. 5348 TO AMEND ORDINANCE NO. 5341 RELATING TO THE CITY OF BREMERTON FISCAL YEAR 2018 BUDGET; AND APPROVE DEPARTMENT STAFFING CHANGES: Caroline Tompson, Budget Analyst, explained that each year the City assesses its current fiscal year budget for any needed adjustments, which are recommended for the following reasons: 1) to adjust the estimated beginning fund balances to actual, 2) to account for unanticipated/unexpected conditions, 3) to incorporate 2017 carryover items, and 4) to adjust for previously approved Council motions/resolutions etc. The attached ordinance and supporting documents outlines the various reasons for the current proposed budget amendment. Staffing changes included: Contracts Administrator; Permit Technician; 2 seasonal part-time Parks Laborers; and extra help in the Legal Department. There were no comments from the public... 06:20:52 Motion was made by Sullivan and seconded by Hillman... Comments and questions were made by Sullivan and Daugs; with responses provided by Ms. Tompson... 06:22:17 M/S/C/U (Sullivan/Hillman) Move to pass Ordinance No. 5348 amending Ordinance No. 5341 relating to the City of Bremerton Fiscal Year 2018 Budget; and further authorize identified staffing adjustments. PUBLIC HEARINGS 7A — PUBLIC HEARING AND RESOLUTION NO. 3309 TO ADOPT THE SIX-YEAR TRANSPORTATION IMPROVEMENT PLAN FOR 2019-2024: Tom Knuckev, City Engineer, stated that the Six -Year Transportation Improvement Program (TIP) is prepared pursuant to RCW 35.77.010 The TIP is updated annually and filed with the Secretary of Transportation, Local Programs Office. It is intended as a planning tool for the local, State, and Federal transportation funding entities. The TIP has been prepared for City Council approval by Resolution prior to submittal to the Washington State Department of Transportation. This TIP is consistent with Bremerton's Comprehensive and Non - Motorized Transportation Plans, and Street CIP. President Younger opened the public hearing... With no comments received, President Younger closed the Hearing to the public; and opened for discussion with the Council... 06:25:22 Motion was made by Gorman and seconded by Huddy... Comments and questions were made by Gorman, Huddy, Daugs, Sullivan, and Hillman; with responses provided by Mr. Knuckev... 06:30:27 M/S/C (Gorman/Huddy) Move to pass Resolution No. 3309, which approves the City's 2019 to 2024 Six -Year Transportation Improvement Plan; and allow the Mayor to forward the Resolution and Plan to the Washington State Department of Transportation, Local Programs Office. Voted in favor of Motion: Goodnow, Huddy, Sullivan, Gorman, Hillman, Younger Voted opposed to Motion: Daugs Motion carried: 6 -Yes; and 1 -No 7B — PUBLIC HEARING AND ORDINANCE NO. 5349 TO AMEND CHAPTER 3.78 OF THE BREMERTON MUNICIPAL CODE ENTITLED "MULTIFAMILY PROPERTY TAX EXEMPTION" (MFTE): Kelli Lambert, Department of Community Development Planner, presented the proposed ordinance at the request of Mayor Wheeler, with the following amendments to the terms of Multi- family Property Tax Exemption (MFTE) Program (Section 3.78 of the Bremerton Municipal Code): 1) Discontinue the eight (8) Year MFTE 2) Require affordable units for the 12 -year MFTE to be affordable to Low Income households only (current program allows low and moderate income households to qualify), with a revised formula to calculate Low Income as those earning 60 percent of Area Median Income (AMI) — See Attachment A City Council Reg. Mtg. Minutes Wednesday, June 20, 2018 Page 5 of 6 3) Add requirements regarding tenant displacement • Mandatory 12 month notification to current tenants • Relocation costs paid to low income households 4) Clarification of requirements for affordable units to be distributed proportionally across the unit types available Mayor Wheeler requested that the City Council hold a Public Hearing at their Council Meeting on June 20, 2018 to gather public testimony on the proposed amendments. The City Council will then determine if it is appropriate to act on the amendments, modify the proposed amendments, and/or establish a schedule for review and adoption of changes to the MFTE program as necessary. President Younger reiterated that The City Council is conducting this public hearing on the City's "Multi -Family Tax Exemption" (MFTE) program. This program is a tool that the City has adopted to incentivize the creation of new multifamily developments within the City. The Council is considering proposed changes by Mayor Wheeler and is taking testimony only on those proposed changes. President Younger further stated that public comment will be accepted, that no action is anticipated; and then opened the public hearing... Comments provided in favor of the proposed amendments to the MFTE Program: Lori Wheat, Daryl Daugs (Habitat for Humanity of Kitsap County Executive Director); Eli Oldfield; Mel Pritchard; Gina Chamberlin; Fred Druin; and Adam Brockus Comments opposed to proposed amendments to the MFTE Program: Jim McDonald; Kurt Wiest (Bremerton Housing Authority Executive Director); Gary Gartin; Wes Larson (Sound West Group); Mary Ann Weber (Sound West Group); Mark Goldberg (Real Estate Developer); Chuck Henderson; Lucas Wilde (Sound West Group Intern); and Jeremy Stith President Younger asked for clarification on the exemption, which was provided by Mr. Lubovich; He then closed the Hearing to the public; and opened for discussion with the Council... Comments and questions were made by Daugs, Hillman, Sullivan, Gorman, Goodnow, Huddy and Younger, with responses provided by Ms. Spencer and Mayor Wheeler, who also reminded the Council that the longer they wait, applications will continue to come in... President Younger then closed the Public Hearing. COUNCIL MEMBER REPORTS Richard Huddy provided photos of several local events he recently attended including the 76th Anniversary Midway Remembrance Ceremony, a Fire Department Promotion & Badge Pinning Ceremony, a Change of Command Ceremony at Kitsap Connect, a meeting of the Public Facilities District; and a Change of Command Ceremony at the Navy Region NW. He also thanked Public Works for fixing the street at the 1100 block of North Montgomery Avenue; and announced the neighborhood will probably host a Block Party when the project is finished. Tony Hillman announced that volunteers are welcome at the Monthly Friends of Kiwanis Park Clean - Up on Saturday, June 23 from 9:00 to 11:00 AM. Kevin Gorman shared the schedule of Josh Farley's Storywalk "Bridging Bremerton" on Saturday, June 23 as part of Manette's Centennial Celebration; announced a District 3 Community Meeting on Wednesday, June 27 from 5:00 to 7:00 PM in the Meeting Chambers to discuss several topics of interest; looked forward to the 2nd Bremerton Bridge Blast on Saturday, June 30; and announced Rock the Dock Concerts on Saturdays, July 7 and 14 at 5:00 PM on the Louis Mentor Boardwalk. City Council Reg. Mtg. Minutes Wednesday, June 20, 2018 Page 6 of 6 Leslie Daugs announced the next Youth Build Kitsap Informational Sessions on July 11 and August 28; cautioned drivers to watch for children now that school is out for summer; and mentioned the Summer Food Service Program. Pat Sullivan announced the City of Bremerton will be accepting applications from non-profit organizations who wish to apply for lodging tax funding until Thursday, July 12 at 5:00 PM; and the next Lions Park Work Party will be on Saturday, July 14 from 10:00 AM to Noon. Eric Younger announced the Parks & Recreation Commission will be hosting its 2nd Kitsap Lake Park Planning Meeting on Tuesday, June 26 at 5:30 PM at Kitsap Lake Park. President Younger mentioned that due to the AWC Annual Conference in Yakima next week, the Study Session on Wednesday, June 27 will be cancelled; but a Special Meeting will be held on Monday, June 25 beginning at 5:00 PM in the Council Conference Room, unless the Chambers will better accommodate the size of the crowd. With no further business, President Younger adjourned the Council Meeting at 9:04 PM. Prepared and Submitted by: LORI SMITH Legislative Assistant APPROVED by the City Council on the 18th day of July, 2018. ERIC YOUNGER, City Council President Attest: ANGELA WOODS, City Clerk EY:AW:ls:cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL 6C SUBJECT: Minutes of Special Meeting — Study Session Date: N/A June 25, 2018 COUNCIL MEETING Date: July 18, 2018 Department: City Council Presenter: Council President Phone: (360)473-5280 SUMMARY: The Minutes of Special Meeting held on June 25, 2018 are attached. ATTACHMENTS: Special Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: ❑ Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to approve the June 25, 2018 Special Meeting Minutes as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/02/2018 DIGITAL RECORDING CITY COUNCIL SPECIAL MEETING MINUTES Monday, June 25, 2018 A Special Meeting of the City Council of the City of Bremerton was called to order in the Council Conference Room of the NORM DICKS GOVERNMENT CENTER, 345 6t" Street, Bremerton, Washington, Monday, June 25, 2018, at 5:00 PM, with Council President Eric Younger presiding. Council Members present were Richard Huddy, Tony Hillman, Kevin Gorman, and Pat Sullivan. Council Member Michael Goodnow and Leslie Daugs were absent. Lori Smith, Legislative Assistant, was present to provide staff support. President Younger emphasized that the Special Meeting is open to the public, but there will be no opportunities for input or participation, and except for Item Al, no action is anticipated; and the content of these items is subject to change. A. GENERAL BUSINESS 1. APPOINTMENT OF ANGELA WOODS TO THE POSITION OF CITY CLERK; AND SET THE SALARY AT BAND 13, RATE 2 ON THE CITY OF BREMERTON'S 2018 MANAGEMENT & PROFESSIONAL SALARY PLAN: DeWayne Pitts, Financial Services Director explained that Section 21 of the Bremerton City Charter requires confirmation by Council of appointments of appointive officers including the City Clerk. Per BMC 2.50.032 (a), City Council approval is required when setting a new employee's initial salary at a rate which exceeds Rate 1; and it is proposed that Angela's salary be set at Rate 2. She was hired by the City of Fife as their Deputy City Clerk in January of 2016 and then promoted to City Clerk in 2017. From June 2014 through December 2016 she worked for Pierce Transit as their Assistant to the CEO/Deputy Clerk of the Board. From June 2006 through May 2014 she worked for the City of Bremerton as an Office Assistant Senior. Ms Woods has her Bachelor's Degree from the University of California. There were no comments from the public... 05:05 M/S/C/U (Sullivan/Huddy) Move to confirm the appointment of Angela Woods to the Position of City Clerk and authorize her salary being set at Band 13, Rate 2 of the Management and Professional Salary Plan. B. GUEST PRESENTATIONS 1. Proposed Puget Sound Tunnel — By Retired Civil Engineer Bob Ortblad Information only 2. Heading Home: Kitsap Homeless Crisis Response and Housing Plan — By Kirsten Jewel, Housing and Homelessness Division Coordinator with the Kitsap County Department of Human Services Information only C. GENERAL COUNCIL BUSINESS 1. Audit Committee Briefing (6/18/18 Meeting) — Committee Member Pat Sullivan 2. Public Works Committee Briefing (6/19/18 Meeting) — Chair Pat Sullivan 3. President Younger announced that the next meeting will be the City Council Study Session on Wednesday, July 11, 2018. With no further business, President Younger adjourned the Council Special Meeting at 7:55 PM. City Council Special Meeting Minutes Monday, June 25, 2018 Page 2 of 2 Prepared and Submitted by: LORI SMITH, Legislative Assistant APPROVED by the City Council on the 18th day of July, 2018. ERIC YOUNGER, City Council President Attest: ANGELA WOOD, City Clerk EY:AW:ls:cg AGENDA BILL CITY OF BREMERTON D CITY COUNCIL SUBJECT: Minutes of Study Session — July Study Session Date: N/A 11, 2018 COUNCIL MEETING Date: July 18, 2018 Department: City Council Presenter: Council President Phone: (360) 473-5280 SUMMARY: The Minutes of Study Session held on July 11, 2018 are attached. ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: ❑ Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to approve the July 11, 2018 Study Session Minutes as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/02/2018 DIGITAL RECORDING CITY COUNCIL STUDY SESSION MINUTES Wednesday, July 11, 2018 A Study Session of the City Council of the City of Bremerton was called to order in the Council Conference Room of the NORM DICKS GOVERNMENT CENTER, 345 6t" Street, Bremerton, Washington, Wednesday, July 11, 2018, at 5:00 PM, with Council Vice -President Richard Huddy presiding. Council Members present were Michael Goodnow, Tony Hillman, Kevin Gorman, Leslie Daugs, and Pat Sullivan. Council President Eric Younger was absent. Lori Smith, Legislative Assistant, was present to provide staff support. Vice -President Huddy emphasized that the Study Session is open to the public, but there will be no opportunities for input or participation; no action is anticipated except when deemed appropriate; and the content of these items is subject to change. If approved by the Council, items will be placed on the July 18, 2018 City Council Meeting Agenda A. LIMITED PRESENTATION PLANNED —The following items are budgeted items or subjects that have been raised with the appropriate Council Committee Members: 1. Confirm Appointment of Jeffery Flood to the Bremerton Housing Authority Board of Commissioners Consent Agenda 2. Professional Services Agreement with BMcConsulting LLC for Lobbying Services General Business 3. Interagency Agreement with Washington State Patrol for Fire Service Mobilization General Business 4. Disney "Meet Me at the Park" Play Spaces Grant Acceptance; 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 General Business 5. Purchase of Playground Equipment from Landscape Structures, Inc. for the Manette Park Renovation Project General Business 6. Eastside Wastewater Treatment Plant Outfall Lease Agreement with WA State Department of Natural Resources Consent Agenda 7. Purchase of a replacement Ford Police Interceptor from Columbia Ford of Longview, WA; and authorize Budget Amendment to ERR Fund 510 ConsentAgenda 8. Public Works Trust Fund Loan Funding Agreement for the Ostrich Creek Culvert Improvements Project General Business 9. Public Works Trust Fund Loan Funding Agreement for the Pine Road Basin Watershed Storm Sewer Improvements Project General Business 10. Contract Award to Transblue, LLC for Pedestrian Crossing and Sidewalk Improvements Project General Business 11. Ordinance to the amend Bremerton Municipal Code Chapters 2.06 and 2.09; and to create new Chapter 2.07 entitled "Office of City Clerk" Consent Agenda B. BRIEFINGS & FULL PRESENTATIONS 1. Confirm Appointment of James Burchett to Police Chief Consent Agenda City Council Study Session Minutes Wednesday, July 11, 2018 Page 2 of 2 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. General Council Business was discussed. With no further business, Vice -President Huddy adjourned the Council Study Session at 7:00 PM. Prepared and Submitted by: LORI SMITH, Legislative Assistant APPROVED by the City Council on the 18th day of July, 2018. ERIC YOUNGER, City Council President Attest: ANGELA WOODS, City Clerk EY:AW:ls:cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Confirm Appointment of Jeffery Flood to the Bremerton Housing Authority Board of Commissioners Study Session Date: COUNCIL MEETING Date: Department: Presenter: Phone: 6E July 11, 2018 July 18, 2018 Executive Mayor Wheeler (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: Application available in the Mayor's office. FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: ❑x Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 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 CITY COUNCIL SUBJECT: Eastside Wastewater Treatment Plant Outfall Lease Agreement with WA State Department of Natural Resources Study Session Date: COUNCIL MEETING Date: Department: Presenter: Phone: 6F July 11, 2018 July 18, 2018 PW&U/WWTP Ned Lever (360) 473-2398 SUMMARY: The existing outfall lease agreement for the Eastside Wastewater Treatment Plant with the Washington State 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 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: 0 No Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑x Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to approve the Eastside Wastewater Treatment Plant Outfall Lease Agreement with the Washington State 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 Form Updated 01/07/15 ❑ Deny ❑ Table ❑ Continue ❑ No Action When recorded, return to: City of Bremerton 1600 Oyster Bay Avenue South Bremerton, WA 98337 HILARY S. tRANZ Wl; ;); LANDS 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 (NW 1/4 SE 1/4), 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, a government agency ("Grantee"). BACKGROUND Grantee desires to use state-owned aquatic lands located in Kitsap County, Washington for the purpose of discharging effluent from 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 Outfall Easement (1/17) Page 1 of 41 Easement 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 1.1 Easement 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. 1.2 Survey and Easement Property Descriptions. (a) Grantee represents that the unrecorded survey referenced in Exhibit A is a 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 easement area 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 Outfall Easement (1/17) Page 2 of 41 Easement No. 51-077356 than June 28, 2020. Upon State's written acceptance of the updated record of survey, the legal 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 2.1 Permitted 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. 2.2 Restrictions 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 or adjacent state-owned aquatic land. (d) Failure to Comply with Restrictions on Use. Aquatic Lands Outfall Easement (1/17) Page 3 of 41 Easement 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. 2.4 Liens 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. 2.5 Interference 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 Outfall Easement (1/17) Page 4 of 41 Easement 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. 2.6 Amendment 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 3.1 Term Defined. The term of this Easement for the location described in Exhibit A is Thirty (30) years (the "Term"), beginning on the 1st day of July 2018 (the "Commencement Date"), and ending on the 30th day of June 2048 (the "Termination Date"), unless terminated sooner under the terms of this Easement. The temporary construction easement described in Section 2 of Exhibit B shall terminate upon completion of the Proposed Work described in Exhibit B or on the 31st day of December 2019, whichever date comes first. 3.2 Renewal of the Easement. (a) This Easement does not provide a right of renewal. Grantee may apply for a new Easement, which State 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. 3.3 End 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 condition of 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 Outfall Easement (1/17) Page 5 of 41 Easement 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 4 FEES 4.1 Fee. 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. 4.2 Payment Place. Grantee shall make payment to Financial Management Division, 1111 Washington St SE, PO Box 47041, Olympia, WA 98504-7041. SECTION 5 OTHER EXPENSES 5.1 Utilities. Grantee shall pay all fees charged for utilities in connection with the use of the Easement Property. 5.2 Taxes 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 Outfall Easement (1/17) Page 6 of 41 Easement 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 6.1 Late 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. 6.2 Interest Penalty for Past Due Fees and Other Sums Owed. (a) Grantee shall pay interest on the past due fees at 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 disposal of 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. 6.3 Referral 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. 6.4 No 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 7.1 Improvements 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 Outfall Easement (1/17) Page 7 of 41 Easement 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. 7.2 Existing Improvements. On the Commencement Date, the following Improvements are located on the Easement Property: 20 -inch diameter cast iron pipe; 36 -inch diameter reinforced concrete pipe with an 84 -foot long diffuser with twenty-one, 5.75 -inch diameter ports. The Improvements are Grantee -Owned Improvements. 7.3 Construction, 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 Work without 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. State may impose additional conditions reasonably intended to protect and preserve the Easement Property and/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 submit to 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) days of submittal. (c) Grantee shall notify State of emergency Work within 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 Work until Grantee or Grantee's contractor has: (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 performance and 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 Outfall Easement (1/17) Page 8 of 41 Easement 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 its natural 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 in or 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). (1) Grantee shall bury any new pipeline installation below the sediment surface within nearshore areas. 7.4 Grantee -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 Outfall Easement (1/17) Page 9 of 41 Easement 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 specifications shall 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. 7.5 Disposition 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 Outfall Easement (1/17) Page 10 of 41 Easement 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 8.1 Definitions. (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 as defined under any law described in Paragraph 8.1(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. 8.2 General 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 Outfall Easement (1/17) Page 11 of 41 Easement 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, Grantee shall 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 -parry 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. 8.4 Use 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 Outfall Easement (1/17) Page 12 of 41 Easement 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. 8.6 Notification 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 are not 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 Outfall Easement (1/17) Page 13 of 41 Easement No. 51-077356 8.7 8.8 Indemnification. (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. 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 Outfall Easement (1/17) Page 14 of 41 Easement 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. 8.9 Cleanup. (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. 8.10 Sampling 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 Outfall Easement (1/17) Page 15 of 41 Easement 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 Paragraph 8.6(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 of experts. 8.11 Closeout 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 Outfall Easement (1/17) Page 16 of 41 Easement No. 51-077356 SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE 10.1 Indemnity. (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 permittees to 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 caused solely 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 any immunity 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. 10.2 Insurance Terms. (a) Insurance Required. Aquatic Lands Outfall Easement (1/17) Page 17 of 41 Easement 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 Outfall Easement (1/17) Page 18 of 41 Easement 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 reason of 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. 10.3 Insurance 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 Outfall Easement (1/17) Page 19 of 41 Easement 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 Outfall Easement (1/17) Page 20 of 41 Easement 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 Certificate must 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. 10.4 Financial 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 Zero Dollars ($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 Outfall Easement (1/17) Page 21 of 41 Easement 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 11.1 State's Repairs. State shall not be required to make any alterations, maintenance, replacements, or repairs in, on, or about the Easement Property, or any part thereof, during the Term. 11.2 Grantee's Repairs and Maintenance. (a) Grantee shall, at its sole cost and expense, keep and maintain the Easement Property and all improvements (regardless of ownership) in good order and repair, in a clean, attractive, and safe condition. (b) Grantee shall, at its sole cost and expense, make any and all additions, repairs, alterations, maintenance, replacements, or changes to the Easement Property or to any improvements on the Easement Property which may be required by any public authority having jurisdiction over the Easement Property and requiring it for public health, safety and welfare purposes. (c) Except as provided in Section 11.2(d), all additions, repairs, alterations, replacements or changes to the Easement Property and to any improvements on the Easement Property shall be made in accordance with, and ownership shall be governed by, Section 7, 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 permits does 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 12.1 Notice and Repair. (a) In the event of any known damage to or destruction of the Easement Property or Aquatic Lands Outfall Easement (1/17) Page 22 of 41 Easement 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 State provides written notice to Grantee of each specific claim waived. 12.3 Insurance 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 14.1 Termination 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. 14.2 Termination 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 Outfall Easement (1/17) Page 23 of 41 Easement No. 51-077356 14.3 Termination by Grantee. Grantee may terminate this Easement upon providing State with sixty (60) days written notice of intent to terminate. SECTION 15 NOTICE AND SUBMITTALS 15.1 Notice. 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. 15.2 Contact 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 16.1 Authority. 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 Outfall Easement (1/17) Page 24 of 41 Easement 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. 16.2 Successors 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. 16.4 Entire 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. 16.6 Cumulative 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. 16.7 Time 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. 16.10 Applicable 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 Outfall Easement (1/17) Page 25 of 41 Easement 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. 16.11 Recordation. At Grantee's expense and no later than thirty (30) days after receiving the fully -executed Easement, Grantee shall record this Easement in 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. 16.12 Modification. No modification of this Easement is effective unless in writing and signed by the Parties. Oral representations or statements do not bind either Parry. 16.13 Survival. 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 Outfall Easement (1/17) Page 26 of 41 Easement No. 51-077356 16.14 Exhibits and Attachments. All referenced exhibits and attachments are 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. Dated: 20 Dated: , 20 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES By: KRISTIN SWENDDAL Title: Acting Deputy Supervisor for Aquatics, Geology and IT Address: 950 Farman Avenue North Enumclaw, WA 98022 CITY OF BREMERTON By: GREG WHEELER Title: Mayor Address: 345 6Tn Street — Suite 600 Bremerton, WA 98337 Phone: 360-473-5266 Approved as to form this 17thth day of May 2018 Jennifer Clements, Assistant Attorney General Aquatic Lands Outfall Easement (1/17) Page 27 of 41 Easement No. 51-077356 Dated: .20 Dated: 20 REVIEWED AND APPROVED BY FOR THE CITY OF BREMERTON BY By: ROGER LUBOVICH Title: City Attorney of City of Bremerton By: Title: City Clerk for the City of Bremerton Aquatic Lands Outfall Easement (1/17) Page 28 of 41 Easement No. 51-077356 REPRESENTATIVE ACKNOWLEDGMENT STATE OF WASHINGTON) ss. County of ) I certify that I know or have satisfactory evidence that GREG WHEELER is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Mayor of the City of Bremerton to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 20 (Seal or stamp) (Signature) (Print Name) Notary Public in and for the State of Washington, residing at My appointment expires Aquatic Lands Outfall Easement (1/17) Page 29 of 41 Easement 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: (Seal or stamp) 20 (Signature) (Print Name) Notary Public in and for the State of Washington, residing at My appointment expires Aquatic Lands Outfall Easement (1/17) Page 30 of 41 Easement No. 51-077356 EXHIBIT A Agreement Number: 51-077356 Legal description of the Easement Property: T)'J� .� r'f rrar ODS; C." r71 fir(l0 in L01 - -�.p 24 M) M. Pun qs I c-rrrt r. If, r r a.,if �,L'1� r�J.ti �i �raF�rir r F err f1tia ���0 CrL:. I` W.1; Y f-919? an side of G omni en _"; ;i rj"• ra e tih o No,' -t.''1' el%r t c orae- of tti rh-P Fra � � gUCr rer ��r�r r� r of So r� s&r=1 r lam: 1 • .�, }1: Xh µ'��r�. �' f�� r 113��'��r�+dr7r I�rr:r�f�r Ur 'a J'r•'�� ti: 05 141 ' 16 "W ? 4r6. f 31 r{7 1), r, o f Ex & et.,r5 47.'.r U:7c� the PoO f 1 Jrof tiRjLl, r; r� ��arrg of rhe s ���jL',� � �'r�'rl �*; ',I 11� -L}- -. `' 1 Jr 1�U. rig SVfY 1 Y l (-' •'915'V ! T 1$�'L 1 .9 Jt. L fee �. The.11' a �o Y' I '1 r J��.w�1 ie ra r.,3.r F'C)rp ti a r rri �r, ' As shown on that unrecorded survey for the City of Bremerton Sanitary Sewer Outfall, DNR Application No. 51-077356, dated November 7, 2017, By Steven E. Ottmar, PLS, of AES Consultants, Inc. On file at the Washington State Department of Natural Resources Title and Records Office under DNR FILE 51-077356. Square footage of each of these Use classifications: Water -dependent 0.0 Nonwater-dependent 5,145.0 Public Access 0.0 Total square feet 5,145.0 Aquatic Lands Outfall Easement (1/17) Page 31 of 41 Easement No. 51-077356 PLAN OF OPERATIONS EXHIBIT B 1. DESCRIPTION OF PERMITTED USE A. Existing Facilities The existing Bremerton East Wastewater Treatment Plant (East Plant) was commissioned on January 1, 2002 and discharges disinfected primary treated effluent off the eastern shore of the Port Washington Narrows. The East Plant receives domestic sewage from residential and light commercial activities in the city of Bremerton. The treatment system consists of a High Rate Clarification (HRC) system that 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 East Plant 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 Outfall Easement (1/17) Page 32 of 41 Easement 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 to do the following Proposed Work: Remove approximately 223 feet of the existing 20 -inch diameter cast iron pipe and the associated anchor blocks. o A shored trench will be excavated using excavators on 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 removed will 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 anticipates completing the Proposed Work within the dry season (July -September 2018) to avoid service interruptions. Detailed plans and specifications for the above-described Proposed Work, are shown in Attachment B-1 to this Exhibit B. State grants its consent to the Proposed Work as provided under Paragraph 7.3 of the Lease. Grantee shall 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, the new outfall will be about 104 feet shorter than the existing outfall. As a result, the new footprint of Grantee's improvements will be smaller than the footprint of Grantee's improvements on the Commencement Date. State may reduce the square footage of the Easement Aquatic Lands Outfall Easement (1/17) Page 33 of 41 Easement 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; BP 16 00081; Ecology SEPA 9201700592 dated April 13, 2017 City of Bremerton Exemption from shoreline Substantial Development Permit; 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: Commencing at the northeast corner of Section 11; thence S 01°45'35" W along the east line thereof 2651.91 feet to the east quarter corner of said Section 11; thence S 71048'55" W 2512.66 feet to the Government Meander Line; thence S 06043'36" W 148.73 feet to the line of Extreme Low Tide and the Point of Beginning of this centerline; thence continuing S 06043'36" W 95.25 feet; thence S 0004703" E 547.74 feet to the Terminus of this center line description, and from which the east quarter corner bears N 56049'46" E 2877.08 feet. From the terminus the southerly limit line bears S 75058'25" E and N 75058'25" W. 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 Outfall Easement (1/17) Page 34 of 41 Easement 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 I.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, Grantee shall 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. Grantee 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 Outfall Easement (1/17) Page 35 of 41 Easement No. 51-077356 —' ATTACHMENT B-1 I ID r Aquatic Lands Outfall Easement (1/17) Page 36 of 41 Easement No. 51-077356 J 4 ILL CO Q W aU W Z4 r-i O J w a bCLa .j W � � 2: Z W �W x CO Q W U.�WU 0 J J � CL W UJ UO r Aquatic Lands Outfall Easement (1/17) Page 36 of 41 Easement No. 51-077356 Y! CO W o N J w a a r Aquatic Lands Outfall Easement (1/17) Page 36 of 41 Easement No. 51-077356 "ZD Aquatic Lands Outfall Easement (1/17) Page 37 of 41 Easement No. 51-077356 Aquatic Lands Outfall Easement (1/17) Page 38 of 41 Easement No. 51-077356 waw L1Y 4N] dr g� V Aquatic Lands Outfall Easement (1/17) Page 38 of 41 Easement No. 51-077356 dJ"d R6 L1Y 4N] 3� ii qW3 - Fit ump ....LL ]sew Aquatic Lands Outfall Easement (1/17) Page 38 of 41 Easement No. 51-077356 Aquatic Lands Outfall Easement (|/|7) Page 39o[4| Easement No. 5|'077356 mFT v I I i I i � � I I I I I I 'I i I � i 1 zr. s 21 a; I f a W a it I 21 a; w Aquatic Lands Outfall Easement (1/17) Page 40 of 41 Easement No. 51-077356 ATTACHMENT B-2 TEMPORARY CONSTRUCTION EASEMENT \ Balanced Govt \Meander Line yo \ East Side Treatment Plant _ Concrete Bulkhead - MN Existing cs�n�12 3 X=1194439.5 Y=217444.66 X=1194446.1 Y=216946.69 #�S s (NW7. TWP. 24N., KG. 7L., W.M. Aquatic Lands Outfall Easement (1/17) Page 41 of 41 95040.07 7413.50 195048.241 e 16796.2 0 EXHOT PREPARED BY CITY CF BRE.WERMV Easement No. 51-077356 EXHIBIT C 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 C Page 1 of 35 Easement 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 SSAP Addendum: Round 11 Exhibit C Page 2 of 35 of WASH 23453 .....��' G\� �StO N A L �C> October 2016 Easement 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 4.1 Sample Containers and Labels ......................... 4.2 Chain of Custody Procedures ........................... 4.3 Sample Storage Requirements ......................... 4.3.1 Chemical Testing ....................................... 4.3.2 Biological Testing ...................................... .......................................................... 24 ...........................................................24 ...........................................................24 ...........................................................24 .......................................................... 24 .......................................................... 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 i October 2016 SSAP Addendum: Round 11 Exhibit C Page 3 of 35 Easement 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 ii October 2016 SSAP Addendum: Round II Exhibit C Page 4 of 35 Easement 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 EIM Environmental 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 SSAP Addendum: Round II Exhibit C Page 5 of 35 October 2016 Easement No. 51-077356 SECTION 1: INTRODUCTION 1.1 DISCUSSION Ecology issued NPDES Permit No. WA0029289 to the City of Bremerton on June 21, 2013. Condition S 10 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. 1.1.1 2014 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. 1.1.2 Sediment 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 SSAP Addendum: Round 11 Exhibit C Page 6 of 35 October 2016 Easement 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 Parameter SQS SIZMax Sand Stations 13-1 carbon) 13-2 6-2 ORGANIC COMPOUNDSi ' organic Dilution Factor 10 10 10 TOC Chlorinated Benzenes 0.71 0.57 2.00 1,2 -Dichlorobenzene 2.3 2.3 3.4 4.2 1,4 -Dichlorobenzene 3.1 9 3.5 4.4 1,2,4-Trichlorobenzene 0.81 1.8 3.7 4.6 1.3 Hexachlorobenzene Phthalate Esters 0.38 2.3 4.6 5.8 1.7 Butyl benzyl phthalate 4.9 64 5.2 6.5 Bis[2-ethy1hexy1]phtha1ate Nfiscellaneous 47 78 150 Hexachlorobutadiene ORGANICIONIZABLE I I' I 3.9 1 6.2 dry weight) 4.2 5.3 2,4 -Dimethylphenol 29 29 63 63 63 Benzoic acid 650 650 960 960 960 City of Bremerton SSAP Addendum: Round 11 Exhibit C Page 7 of 35 October 2016 Easement No. 51-077356 Table 1 Sample Results Exceeding SQS/LAET Criteria Parameter SQS SIZMax Sand Stations 6-1 carbon) 1 6-3 1 12-1 1 12-3 1 13-3 ORGANIC CompouNDsI organic Dilution Factor 5 5 10 10 5 TOC Chlorinated 0.24 0.23 0.33 0.41 0.22 Hexachlorobenzene Miscellaneous 22 70 33 j 33 Hexachlorobutadiene 11 120 15 15 30 30 15 N-nitrosodiphenylamine IONIZABLE ORGANIC CONWOUNDS 28 40 32 32 2,4 -Dimethylphenol 29 29 63 63 32 32 32 Benzoic acid 650 650 960 960 Parameter SQS Mud Stations SIZMax WP -1 WP -2 WP -3 WP -4 WP -5 Dilution Factor 1 varies varies 1 1 TOC METALS Igdry weight) 4.49 8.43 3.87 5.57 3.85 Mercury Phthalate Esters 0.41 0.59 0.784 0.882 1.04 1.04 0.742 Butyl benzyl phthalate 63 900 4500(2) 140(') Bis[2-ethylhexyl]phthalate Miscellaneous 1300 1900 8500(3) 1800(2) Total PCBs 130 1000 1800) 310(') (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 SSAP Addendum: Round 11 Exhibit C Page 8 of 35 October 2016 Easement 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. Clay C Si, VF S F S V S I C S VC S Gran I -i r ll0 Cr hlr 7 0 WY-- 'A.� FPCSCSNAN1')TR.%f.SP"?R7 !j U �y} Eros+an oFt,ncWnaalidsted mud > ®rte--------�------- 'a l7FPi1S t77p# TR.AN'SPORT IN SU/EN11ON �— Fnr f7 ae pe of f maim. 7ne Rs ,'ons of the CSNVES very f�,,rdifrieruWfA7Ndepms aM o0orenr seo megr characren€rxs 01 0.C'1 l}U'1 Q luou 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 7 October 2016 SSAP Addendum: Round 11 Exhibit C Page 9 of 35 Easement 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 SSAP Addendum: Round 11 Exhibit C 8 Page 10 of 35 October 2016 Easement 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. s Region F 0 Off OU A, qualified 5 ► OUR Marine O LLI�9` Outside of OU S Marine .,_ Outside of OU 8 Marine, Qualified } R� d W0 ► LU a 3 J QLLI VVI E7KCL7t (L q� eZ)N6. o © Li S fZ_V [=. D A -r A . L J VV e 5 r-il o r S A, A ► ► 4 P a � AA • a � 0 1 1 i 0 5,600 10,060 15,000 20,000 25,000 TOTAL ALUMINUM, IN MILLIGRAMS PER KILOGRAM, DRY WEIGHT 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 9 October 2016 SSAP Addendum: Round 11 Exhibit C Page 11 of 35 Easement No. 51-077356 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 (OF 13-1, 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. 1.1.4 Ecology 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 SSAP Addendum: Round 11 Exhibit C 10 Page 12 of 35 October 2016 Easement 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. 1.2 PURPOSE 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 SSAP Addendum: Round 11 Exhibit C 11 Page 13 of 35 October 2016 Easement No. 51-077356 Lazaro Eleuteno, P -E_, NWRO t WQP City of Bremerton Sediment Monitoring March 29, 2016 Page 5 of 6 o Based on the chemicals results from the 2015 sampling event, confirmatory designation of sediments using bioassays was required per WAC 173-204- 310(2)(x). ■ Please include a discussion in the data report outlining which stations should be included in bioassays. o Additionally, chemistry results presented in the data report are inconclusive due to detection linnits above the SMS criteria provided in WAC 173-204-320. ■ The analytical results only show that the chemical is present and does not quantify at what concentration. ■ Therefore, samples will need to be recollected and analyzed for chemistry using better detection methods along u-ith all conventionals. 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 1.3 REGULATORY 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 SSAP Addendum: Round II Exhibit C 12 Page 14 of 35 October 2016 Easement No. 51-077356 SECTION 2: SAMPLING DESIGN 2.1 PROJECT 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. 2.2 SAMPLING 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. 2.3 PROPOSED 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. 2.3.1 Sand and Gravel Sites Six of the sampling sites (EP -1-5, OF 12-2) 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 SSAP Addendum: Round 11 Exhibit C 13 Page 15 of 35 October 2016 Easement No. 51-077356 Exhibit C N +r � O O � a V O O Cf) J O O o 0 m .Q LO E T M N Cf) ti i iL � v r r Page 16 of 35 Easement No. 51-077356 2.3.2 West 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 ENWEST project. City of Bremerton SSAP Addendum: Round 11 Exhibit C 15 Page 17 of 35 October 2016 Easement No. 51-077356 r rte,•'' L.1.1 d•M1 n* ' Z LL =2 z }K E Y 8 1 a u u u u u u 4a 0000000 = IL a p Q ff a fool �� • ._ ,III •� � �`�-• h — L . j IP tt i F. �■ I 3 t -r J 4.0 �r A o ff y *r M �a T `7 Exhibit C Page 18 of 35 Easement No. 51-077356 rn 0 0 N v� 0 CO D 6 U 0 U) 2.3.3 Supplementary 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 0176-1, 12-1, and 13- 2 (Figures 9-11). Table 2 Proposed Sampling Station Coordinates, Chemistry Only Station N 470 W 1220 Depth (ft) OF6-1 35.15' 38.777' 1 OF12-1 34.703' 38.273' 2 OF13-2 34.644' 37.812' 0 2.3.4 Chemistry and Bioassay Station 0176-2 had detected parameters at concentrations exceeding SMS criteria. Therefore, Station 0176-2 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 0176-2 and Ecology guidance. Table 3 Proposed Sampling Station Coordinates, Chemistry and Bioassay Station N 470 W 1220 Depth (ft) OF6-2 35.14' 38.77' 3 City of Bremerton SSAP Addendum: Round 11 Exhibit C 17 Page 19 of 35 October 2016 Easement No. 51-077356 O E m cn to U- 0 L cu cu 0 � m 7 0 cu L E E U U 0 L --N v 51-077356 O �twwjl IiI��IN o ; l�� IN(IH�-E-RIN( Chemistry Only Figure OF 12 Sampling Locations 10: Chemistry and Bioassay Exhibit C Page 21 of 35 Easement No. 51-077356 Exhibit C N c O M N M r U- 0 T iTLT L cu cu 0 � m 7 O cu L E E U U O L -P v z — C=F v . it— Page 22 of 35 Easement No. 51-077356 SECTION 3: FIELD SAMPLING METHODS 3.1 STATION 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. 3.2 DECONTAMINATION 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 11 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. 3.3 SAMPLE 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 rej ected. City of Bremerton SSAP Addendum: Round 11 Exhibit C 21 Page 23 of 35 October 2016 Easement 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. 3.4 FIELD 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 SSAP Addendum: Round 11 Exhibit C 22 Page 24 of 35 October 2016 Easement No. 51-077356 3.5 DISPOSAL 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 SSAP Addendum: Round 11 Exhibit C 23 Page 25 of 35 October 2016 Easement No. 51-077356 SECTION 4: SAMPLE HANDLING PROCEDURES 4.1 SAMPLE 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. 4.2 CHAIN 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. 4.3 SAMPLE STORAGE REQUIREMENTS 4.3.1 Chemical 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 SSAP Addendum: Round 11 Exhibit C 24 Page 26 of 35 October 2016 Easement No. 51-077356 4.3.2 Biological 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 SSAP Addendum: Round 11 Exhibit C 25 Page 27 of 35 October 2016 Easement No. 51-077356 SECTION 5: LABORATORY ANALYTICAL METHODS 5.1 CHEMICAL 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. 5.2 QUALITY 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. 5.3 BIOLOGICAL 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 11 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 SSAP Addendum: Round 11 Exhibit C 26 Page 28 of 35 October 2016 Easement No. 51-077356 5.3.1 Acute 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 >_ 25 ppt? yes no 1 1 Sediment Fines Sediment Fines < 60 percent? i—I >_ 60 percent? ll yes no yes no Rhepoxynius abronius Ampelisca abdita Eohaustorius estuarius Figure 12 Decision Tree for Selecting Appropriate Amphipod Species for Marine/Estuarine Toxicity Tests 5.3.2 Acute 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 (Pack 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 SSAP Addendum: Round 11 Exhibit C 27 Page 29 of 35 October 2016 Easement 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. 5.3.3 Chronic 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 SSAP Addendum: Round 11 Exhibit C 28 Page 30 of 35 October 2016 Easement 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. 5.3.4 Quality 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 SSAP Addendum: Round 11 Exhibit C 29 Page 31 of 35 October 2016 Easement No. 51-077356 SECTION 6: QUALITY ASSURANCE/QUALITY CONTROL 6.1 LABORATORY 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: hnps:Hfortress.wa.gov/ecy/publications/documents/1509046.pdf Tables 5-3-5-5 are included in Appendix E. 6.2 DATA 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 SSAP Addendum: Round 11 Exhibit C 30 Page 32 of 35 October 2016 Easement No. 51-077356 SECTION 7: DATA ANALYSIS, RECORD KEEPING, AND REPORTING 7.1 DATA ANALYSIS 7.1.1 Sediment 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/myElM.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. 7.1.2 Data 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 SSAP Addendum: Round 11 Exhibit C 31 Page 33 of 35 October 2016 Easement No. 51-077356 7.2 RECORD 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 IL 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 SSAP Addendum: Round 11 Exhibit C 32 Page 34 of 35 October 2016 Easement 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. hLtp://pubs.usgs.gov/of/2009/1285/. Washington Administrative Code 173-204. Sediment Management Standards. Washington State Department of Ecology. 2015. Sediment Cleanup Users Manual IT Ecology Publication No. 12-09-057. City of Bremerton SSAP Addendum: Round 11 Exhibit C 33 Page 35 of 35 October 2016 Easement No. 51-077356 Charles Ernst From: NOREPLY@des.wa.gov Sent: Wednesday, June 27, 2018 2:43 PM To: Charles Ernst Cc: Steve.Hatfield@des.wa.gov Subject: Vehicle Quote - 2018-6-321 - BREMERTON, CITY OF - 21801 Vehicle Quote Number: 2018-6-321 Create Purchase Rpt View organization DUrchase request=s This is a quote only. You must create a purchase request to order this vehicle(s) Contract & Dealer Information Contract #: 05916 Dealer: Columbia Ford (W403) 700 7th Avenue Longview WA 98632 Organization Information Dealer Contact: Marie Tellinghiusen Dealer Phone: (360) 423-4321 Ext: 187 Dealer Email: orders@colford.com Organization: BREMERTON, CITY OF - 21801 Email: charles.ernst@ci.bremerton.wa.us Quote Notes: For incoming stock vehicle. If ordered before vehicle arrives, can omit stock vehicle upcharge. Vehicle Location: VANCOUVER Color Options Sterling Gray Metallic (UJ) - 1 Tax Exempt: N Vehicle Options Order Code Option Description Qty Unit Price Ext. Price 2018-0506-001 2018 Ford Police Interceptor AWD Pursuit -Rated Utility/SUV (KBA/500A) 1 $28,156.00 $28,156.00 2018-0506-006 Ready for the Road Package. [Includes contents of Front Headlamp Lighting Solution #66A, Tail Lamp 1 $3,406.00 $3,406.00 Lighting Solution #66B, Rear Lighting Solution #66C; Pre -wiring for grille LED lights, siren and speaker #60A, 100 Watt Siren/Speaker #18X, Rear console Plate #85R, Hidden Door -Lock Plunger/Rear Door Handles Inoperable #52P; PLUS: Grille linear LED lights (Red/Blue); Whelen Cencom Light Controller Head with dimmable backlight; Whelen Cencom Relay Center/Siren/Amp with Traffic Advisor mounted behind 2nd row seat; Light controller/relay cencom wiring with additional input/output pigtails; high current pigtail; Whelan Specific WECAN cable (console to cargo area) connects Cencom to Control Head](Not available with Cargo Wiring Upfit Package #67G, Ultimate Wiring Package #67U or Interior Upgrade Package #65U)(67H) 2018-0506-014 Police Wire Harness Connector Kit - Front (For connectivity to Ford PI Package Solutions)[Includes two 1 $105.00 $105.00 (2) male 4 -pin connectors for siren, five (5) female 4 -pin connectors for lighting/siren/speaker, one (1) 4 -pin IP connector for speakers, one (1) 4 -pin IP connector for siren controller connectivity, one (1) 8 - pin sealed connector, one (1) 14 -pin IP connector](47C) 2018-0506-015 Police Wire Harness Connector Kit - Rear (For connectivity to Ford PI Package Solutions)[Includes one 1 $129.00 $129.00 (1) 2 -pin connector for rear lighting, one (1) 2 -pin connector, six (6) female 4 -pin connectors, six (6) male 4 -pin connectors, one (1) 10 -pin connector](21P) 2018-0506-018 Side Marker LED, Sideview Mirrors (Driver side - Red / Passenger side - Blue) (Located on backside of 1 $290.00 $290.00 exterior mirror housing) (LED lights only. Wiring and controller "not" included.) (Must also order Pre - wiring for grille lamp, siren and speaker #60A) (63B) 1 —m 2018-0506-026 Noise Suppression Bonds (Ground Straps)(60R) 1 $100.00 $100.00 2018-0506-027 Power Windows, Driver Control (deletes rear window power controls) (18W) 1 $25.00 $25.00 2018-0506-028 Dome Lamp - Red/White in Cargo Area(17T) 2018-0506-029 Daytime Running Lights (942) 1 $51.00 $51.00 1 $45.00 2018-0506-031 Police Silent Mode (when activated, courtesy lamps and daytime running lights are disabled) (Must also 1 $20.00 order Daytime Running Lights #942) (43L) 2018-0506-032 Police Engine Idle Feature (when activated, allows the key to be removed from ignition while vehicle 1 remains idling, which allows driver to leave the engine running and prevents vehicle from unauthorized use when driver is outside of the vehicle) (47A) 2018-0506-035 Heated Sideview Mirrors (included with BLIS #55B)(549) 1 2018-0506-042 SYNC Basic Voice -Activated Communications System (includes single USB port and single auxiliary audio 1 input jack) (53M) 2018-0506-043 Remappable (4) switches on steering wheel (if ordered with SYNC, includes Voice Button) (61R/61S) 1 2018-0506-048 Remote Keyless Entry with Four (4) FOBS/Transmitters (includes Liftgate Release Button) (Does not 1 include Keyless Entry Door Keypad) (If ordered with Fleet Keyed Alike option, fobs are unique and are not fobbed -alike) (55F) 2018-0506-056 Spot Lamps, LED Bulbs, Dual (Whelen) (51V) 1 2018-0506-207 Undercoating (wheel wells) (DLR) 1 2018-0506-209 Stock Vehicle Upcharge (Call dealer for availability) Delivery within 14 days when available (DLR) 1 Quote Totals 2 $45.00 $20.00 $260.00 $260.00 $61.00 $61.00 $294.00 $294.00 $155.00 $155.00 $338.00 $338.00 $664.00 $664.00 $125.00 $125.00 $250.00 $250.00 Total Vehicles: 1 Sub Total: $34,474.00 8.4 % Sales Tax: $2,895.82 Quote Total: $37,369.82 � Li, N I -`i .0U AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Purchase of a replacement Ford Police Interceptor from Columbia Ford of Longview, WA; and authorize Budget Amendment to Fund 510 6G Study Session Date: July 11, 2018 COUNCIL MEETING Date: Julv 18. 2018 Department: Presenter: Phone: PW&U / ERR Milenka Hawkins -Bates (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: 0 Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 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 CITY COUNCIL SUBJECT: Ordinance No. 5350 to amend Bremerton Municipal Code Chapters 2.06 and 2.09; and to create new Chapter 2.07 entitled "Office of City Clerk" 6H Study Session Date: July 11, 2018 COUNCIL MEETING Date: Julv 18. 2018 Department: Legal 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: Ordinance No. 5350 FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: 0 Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: 0 Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. 5350 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. 5350 AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 2.09 of the Bremerton Municipal Code entitled "Department of Financial Services", amending Chapter 2.06 of the Bremerton Municipal Code entitled "Office of City Attorney," 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]. Chapter 2.09 of the Bremerton Municipal Code entitled "Department of Financial Services" is hereby amended to read as follows: 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 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 Manager as managers for their respective divisions. The managers (hereinafter "managers" or "division managers") shall manage the operations of their respective divisions and shall report 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 positions shall serve as "at -will" employees subject to termination by the Director of Financial 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 responsible for assisting in the management of the City's investment and debt 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. MJF1'11.1Wff1T, .VNNr1 . fi1WM_1nrvMvrvMN.A►w.Anr. h Y.NO111�1111 11 jr, 11 1 2.09.0-50040 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 2.09.0-50040 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. 2.09.864050 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, 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: 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. 0) 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. (1) 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 Ci . 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: M 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 City of Bremerton ("Charter"). (b) Pursuant to Section 21 of the Charter, the appointment of the City Clerk shall be by the Mayor,ject to confirmation by the City Council. The Mmor 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 perform the City Clerk's duties if the position becomes vacant. 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 Citv Attornev may direct or as may be reauired by law. SECTION4. Severability. If anyone or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity 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. 5 GREG WHEELER, Mayor Title 2 Amendments — City Clerk ATTEST: ANGELA WOODS, City Clerk PUBLISHED the day of EFFECTIVE the day of ORDINANCE NO. APPROVED AS TO FORM: ROGER A. LUBOVICH, City Attorney 2018. 2018. R:\Legal\Legal\Ordinances\Legal\BMC Title 2 Amendments - City Clerk.doc 0 Title 2 Amendments — City Clerk AGENDA BILL CITY OF BREMERTON �� CITY COUNCIL SUBJECT: Confirm Appointment of James Study Session Date: July 11, 2018 Burchett to Police Chief COUNCIL MEETING Date: Julv 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: 1) Employment Contract 2) Salary Comparison Worksheet 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 ❑x Full Presentation STUDY SESSION ACTION: 0 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 Form Updated 01/02/2018 ❑ Deny ❑ Table ❑ Continue ❑ No Action EMPLOYMENT CONTRACT CHIEF OF POLICE THIS EMPLOYMENT CONTRACT ("Contract") is made and entered into this day of , 2018, by and between the City of Bremerton, Washington, a chartered first class municipal corporation organized under the laws of the State of Washington ("City"), and James Burchett ("Employee"). RECITALS WHEREAS, Pursuant to Section 21 of the City Charter and Section 2.19.020 of the Bremerton Municipal Code ("BMC"), 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 the same may be amended from time to time ("Policies"), subject to 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 City agrees to employ the services of Employee as Chief of Police of the City's Police Department ("Department"). 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, which may be amended by the City upon thirty (30) days' notice to the 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 is an "at -will" 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 with the City is not included in the City's Civil Service system 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 shall prevent, limit or otherwise interfere with the City's right to 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 other City without the prior written approval of the Mayor. The term "employed" and 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 teaching, writing, consulting or military reserve service performed on Employee's own time, 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 Chief's pay, 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 shall participate in the City's health benefit (medical, dental, vision, 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. HRANEBA contribution; Page 3 4. Sick leave accrual, carry-over and cash out; and 5. Vacation accrual, carry-over and cash out. F. FurloughProgram. Program. Notwithstanding the terms of this Contract that describes the Employee's 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 ("LEOFF"). The City shall make all legally required City contributions for Employee's participation in said system, and Employee shall be responsible for paying all legally required employee contributions for Employee's participation in said retirement system. B. In addition to City's payment to LEOFF described above, City shall pay an amount equal to five and one-half (5.5%) percent of Captain's Step 5 annual base salary into an Internal Revenue Code Section 457 plan or similar deferred compensation program to be paid by the City in accordance with the City's normal payroll schedule. SECTION 6. RESIGNATION, TERMINATION AND SEVERANCE PAY A. Employee's employment with the City may be terminated (separated from employment) as follows: 1. Without Cause. The Employee is an "at will" employee and the City may terminate his employment with the City without cause, at any time, with thirty (30) days' notice pursuant to BMC 2.50.090. If terminated without cause, Employee shall receive three (3) months' severance pay pursuant to BMC 2.50.090. 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 Employ. In the event that the Employee shall terminate his employment with the City, he agrees that he shall provide the City not less than thirty (30) days' prior notice of 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 who is able to commence employment prior to the expiration of thirty (30) days' notice, that they may, in good faith, negotiate an earlier termination date. B. The following reasons shall constitute grounds to terminate this Contract with "Cause" and 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 6.13.1; 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 for reasons that have the potential to adversely impact Employee's 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 taken out at City's expense. 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. 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 c/o Human Resources 3456 th Street, Suite 100 Bremerton, WA 98337 James Burchett In case of service by mail, it shall be deemed complete on the day of actual delivery as shown on the addressee's registry of certification 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 claim for payment or damages by Employee or the City. The City's decision as to whether 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 Greg Wheeler, Mayor Date: APPROVED AS TO FORM: Roger A. Lubovich, City Attorney EMPLOYEE By James Burchett Date: ATTEST: City Clerk R:ALegal\Legal\ContractsAM\Chief of Police Employment Contract1docx Page 8 Total 199,107.75 206,710.10 203,068.02 206,734.59 Original Captain Interim Chief Chief Proposal Base Salary *9/ Longevity 152,047.00 152,047.00 152,047.00 182,593.44 Base with 9% Longevity +5% 7,602.35 7,602.35 DC 5.5% 8,362.59 8,362.59 8,362.59 9,036.98 Life/Disability Insurance 720.00 720.00 7220.000 720.00 Education Pay 6,081.88 6,081.88 6,081.88 MGMT Cert Pay 6,462.00 6,462.00 6,462.00 HRA/VEBA 1,200.00 1,200.00 1,200.00 1,200.00 Sick Leave Cash Out 3,583.51 3,583.51 3,583.51 Vacation Cash Out 5,972.52 5,972.52 5,972.52 Overtime 3,642.08 3,642.08 Total 188,071.57 195,673.92 192,031.84 193,550.42 Medicare 2,326 2,326 2,326 2,779 LEOFF 8,710 8,710 8,710 10,406 Total 199,107.75 206,710.10 203,068.02 206,734.59 AGENDA BILL CITY OF BREMERTON 7A 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: 1) Professional Services Agreement; 2) Exhibit A — Scope of Work; and 3) Supplemental Budget & Legislative Success Summary FISCAL IMPACTS (Include Budgeted Amount): There are no financial impacts. The contract is currently budged for 2018. STUDY SESSION AGENDA: 0 Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda 0 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 Documentl PROFESSIONAL SERVICES AGREEMENT BMcConsulting LLC The City of Bremerton ("City") and BMcConsulting LLC ("Consultant"), referred to collectively as the "Parties," enter into the following Agreement for professional services: L 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 11 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 City's employees and other Consultants. None of the benefits provided by the City to its 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 City's administration and enforcement of this Agreement shall not be deemed an exercise of 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 City's sole negligence, 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 Consultant's 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. All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which may be provided on a "claims -made" basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the 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 obligation upon Consultant to advise the City's Risk Manager by fax at (360) 473-5161, or by certified mail, return receipt requested to City of Bremerton, attn: Risk Management, 345 6th 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 the specific purpose intended will be at City's sole risk. 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. BremertonBMcConsulting 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 Greg Wheeler, Mayor City of Bremerton 3456 th Street, Suite 100 Bremerton, WA 98337 Consultant Address Bryan McConaughy BMcConsulting, LLC 15 Marble Beach Dr. NW 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. Attorneys' Fees: In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney's fees. 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 Its: Mayor Date: Approved as to form: Bremerton City Attorney R:\Legal\Legal\Contracts\EXECUTIVE\BMcConsulting Agreement 2018 - Final.doc BremertonBMcConsulting LLC Lobbying Services Page 6 of 6 By: Bryan McConaughy Its: Principal Date: Attest: City Clerk 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. • BMcConsulting would register as the City's lobbyist with the Public Disclosure Commission. • 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. Supplemental Budget Success: Office of the Mayor 345 6th Street, Suite 100 Bremerton, WA 98337-1873 Telephone: 360-473-5266 Fax: 360-473-5883 Greg. Wheeler@ci.bremerton.wa.us Greg Wheeler, Mayor Senator Christine Rolfes was able to include $450,000 with a $50,000 City - match in supplemental funding for a State Route 303 Corridor Study. The study is critical to identify future projects to improve mobility and retain business viability along the corridor. Rep. Sherry Appleton, with strong support from Speaker of the House, Rep. Frank Chopp, was able to include $280,000 in the Supplemental Capital Budget for planning and study of the Harrison property and surrounding area. The 2017-19 Capital budget was passed early in the session, and funded the following Bremerton projects: • Quincy Square $250,000 • Manette Park $500,000 • Ostrich Creek $4.688M • Pine Basin Sewer $3.881 M • PSIC Sewer Ext $515,000 Legislative Success: HB 16821SB 5652 — Kitsap County BRB/Annexation Bill — Bremerton strongly opposed and was successful in having the bill not make it during this session or the last session. The City of Bremerton has requested that the Ruckelhaus Study review annexations as part of its GMA review and analysis. SB 6587 — Adding taxing language to utility bills — The City was the primary reason this bill did not move past House Local Government Committee, as the potential costs and burden to utilities would have been detrimental to City operations. Improvements were made to this bill, but not enough to alleviate the City's concerns. We may be asked to be involved during the offseason to help Senator Bob Hasegawa address his desired outcomes. SB 6143 - Concerning unit priced contracting by cities — The bill allows a city to procure public works with a unit priced contract to complete anticipated types of work based on hourly rates or unit pricing for one or more categories of work or trades. The City was very active in helping get this legislation passed as it will result in significant cost savings by the City. SUBJECT: Interagency Agreement with Washington State Patrol for Fire Service Mobilization AGENDA BILL CITY OF BREMERTON CITY COUNCIL Study Session Date: COUNCIL MEETING Date: Department: Presenter: Phone: r =� July 11, 2018 July 18, 2018 Fire Chief David Schmitt (360) 473-5380 SUMMARY: The purpose of this 5 -Year Interagency 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: ❑x Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda 0 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 Form Updated 01/02/2018 ❑ Deny ❑ Table ❑ Continue ❑ No Action WSP No. K13981 INTERAGENCY AGREEMENT BETWEEN STATE OF WASHINGTON WASHINGTON STATE PATROL ME -9i 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: 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 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 of that party's employees, agents, and/or authorized subcontractor(s) while performing 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: John R. Batiste, Chief For the City of Bremerton: 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 CITY COUNCIL SUBJECT: Disney "Meet Me at the Park" Play Spaces Grant Acceptance; Memorandum of Understanding with the National Recreation & Park Association to administer the grant for the Manette Park Renovation Project; and authorize Budget Amendment to the Parks Capital Construction Fund Study Session Date: July 11, 2018 COUNCIL MEETING Date: Julv 18. 2018 Department: Presenter: Phone: Parks & Recreation Jeff Elevado (360) 473-5428 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; and 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: ❑x Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda 0 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 Form Updated 01/02/2018 ❑ Deny ❑ Table ❑ Continue ❑ No Action Yew- to?it ereATTACHM] 9 RNational Recreation N Park Association 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. K 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. L 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 I 1 of 3 ,.,, v Of 9 RNational Recreation N Park Association 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. If the grantee's photo 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 "grants" 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 12 of 3 'It' V Of 9 RNational Recreation N Park Association 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 NRPA's 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 NRPA has the right to audit the grantee's financial records relating to this MOU. 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 parry may terminate this MOU at any time effective upon receipt of written notice by the other parry of failure to perform. The non-performing party shall have sixty (60) days to cure its obligation. If the non- performing parry 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: fj * WOWBy: Printed Name: Rebecca Wickline Printed Name: Senior VP, Development Title: Title: Date: June 4, 2018 Date: Page 13 of 3 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Purchase of Playground Equipment from Landscape Structures, Inc. for the Manette Park Renovation Project 7D Study Session Date: July 11, 2018 COUNCIL MEETING Date: Julv 18. 2018 Department: Presenter: Phone: Parks & Recreation Jeff Elevado (360) 473-5428 SUMMARY: The City of Bremerton applied for and received funding from the Recreation & Conservation Office's Local Parks grant in the amount of $500,000 for improvements to the Manette Park. One of the main elements of the project is the relocation and installation of a new children's 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: 0 Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda ❑x 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 $98,625.38 including Washington State sales tax; and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/02/2018 NATIONALIPA 2555 Meridian Blvd., Suite 300, Franklin, TN 37067 N A T I O N A L I N T E R G OV E R N M E N TA L P U R C H A S IN G A L L I A N C E April 28, 2017 Fred Caslavka Chief Financial Officer Landscape Structures, Inc 601 7th Street South Delano, MN 55328 Re: Award of Contract # R170302 Dear Mr. Caslavka: Per official action taken by the Board of Directors of Region 4 Education Service Center, on April 25, 2017, National IPA is pleased to announce after approval of the exceptions as agreed upon in the terms and conditions that Landscape Structures, Inc has been awarded an annual contract for the following, based on the sealed proposal (RFP# 17-03) submitted on March 15, 2017: Commodityj$ervice Supplier Playground Systems, Installation, Landscape Structures, Inc. Service and Related Items This contract is effective May 1, 2017 and will expire on April 30, 2020. As indicated above, your Contract # is R170302. This contract may be renewed annually for an additional two (2) years if mutually agreed by Region 4 ESC/National IPA and Landscape Structures, Inc. Your participation in the proposal process is appreciated and we look forward to a successful partnership. Please feel free to provide copies of this letter to your sales representative(s) to assist in their daily course of business. If you have any questions, please contact Al Piper, Contract Manager assigned to your contract at phone # 615- 380-1307 or alan.piper@nationalipa.org Sincerely, Al Piper, CPPB Contract Manager www.NationalIPA.org EXPERIENCED * FOCUSED * TRUSTED Manette Park Quote/Worksheet # 1802-7507R Option #2 BILL TO: City of Bremerton Parks & Recreation 680 Lebo Blvd. Bremerton, WA 98310 Jeff Elevado 1 360-473-5428 jeff.elevado@ci.bremerton.wa.us PROJECT LOCATION / SHIP TO: Please Advise PLAY CREAT I O N landscape structures �-- Pi,, yyround Cons uwta n APPROVAL SIGNATURE signature print name date Please sign below and fax back to 206-932-5778 to confirm order Date Lead Time Quoted by February 21, 2018 14-21 Days John Larson 206.940.1108 Quantity Design # Description Unit Price Total 1 lot 101079-2-4 PlayBooster system by LSI $ 93,350.00 Material pricing only. Installation not included on this quote. *Freight quote to be varified TCPN: Certified Proposal Number R170302 -WA -18129 $ (7,468.00) Issue Purchase Order to: Landscape Structures, Inc. attention: Misty Link 601 - 7th Street South Delano, MN 55328-0198 mistylink@playlsi.com Send Purchase Order for Processing to: PlayCreation,Inc. attention: John Larson 2104 SW 152nd Street, ste 1 Burien, WA 98166 john)@playcreation.com L 206.932.5778 fax Sub Total $ 85,882.00 Freight* $ 4,600.00 Tax (9%) $ 8,143.38 TOTAL $ 98,625.38 Ac 44 Am i }t I� fT_ r N 4 � n r• coW 1 70 P � y-, W Cl) . r Co < m � 'rBs f titer !�, � �,• }t I� 4 � 1 70 � 1 'rBs f titer !�, � �,• }t AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Public Works Trust Fund Loan Funding Agreement for the Ostrich Creek Culvert Improvements Project 7E Study Session Date: July 11, 2018 COUNCIL MEETING Date: Julv 18. 2018 Department: Presenter: Phone: PW & Utilities Katie Ketterer (360) 473-5334 SUMMARY: The Public Works Trust Fund Loan will be used 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. Loan Funding Agreement 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: 0 Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda ❑x General Business ❑ Public Hearing RECOMMENDED MOTION: Move to authorize the Public Works Trust Fund Loan for the Ostrich Creek Culvert Improvements Project; 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 Form Updated 01/02/2018 ❑ Deny ❑ Table ❑ Continue ❑ No Action CONTRACT FACE SHEET Contract Number: PC18-96103-004 PUBLIC WORKS BOARD CONSTRUCTION LOAN CONTRACT 1. Contractor 2. Contractor Doing Business As (optional) City of Bremerton N/A 3456 1h St, STE 100 Bremerton, WA 98337 3. Contractor Representative 4. Public Works Board Representative N/A N/A 5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End Date Date $4,687,968.00 Federal: ❑ State: Q Other: ❑ Contract Execution June 1, 2038 N/A: ❑ Date 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10. Tax ID# 11.SWV# 12.UB1# 13. DUNS# N/A SWV0000221-00 181-002-539 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: Attorney's Certification. FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD Scott Hutsell, Public Works Board Chair Date APPROVED AS TO FORM ONLY Signature Print Name Title May 02, 2018 Date Siqnature on file Sandra Ad ix Assistant Attorney General 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 Loan Amount: $4,687,968.00 Total Estimated Cost: $4,687,968.00 Total Estimated Funding: $4,687,968.00 Loan Term: 20 Interest Rate: 1.66% Payment Month: June 1St 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, "net revenue" means gross revenue minus expenses of maintenance and operations. The 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 referred to as the "ADA" 28 CFR Part 35.....................................................................................9 2.6 APPROVAL.............................................................................................................................9 2.7 ASSIGNMENT......................................................................................................................10 2.8 ATTORNEYS' FEES............................................................................................................ 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. ATTACHMENT I: ATTORNEY'S CERTIFICATION.................................................. 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. "Contract" shall mean this Construction Loan Contract. B. "Contractor' shall mean the 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. "The Board" shall mean the Washington State Public Works Board created in Revised Code of 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. 1.5 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. The Contractor acknowledges and agrees to the Board's right, upon delinquency in the payment of any 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 -contractors. "Sub -Contractors" shall 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. 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 Governor's Executive Order 05-05, or, as an alternative to completion of Governor's Executive Order 05-05, 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 accordance with Governor's 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 contact DAHP and the concerned tribe's cultural staff or 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 Governor's Executive Order 05-05. In the event that the Contractor finds it necessary to amend SCOPE OF WORK, the Contractor may be required to re -comply with Governor's Executive Order 05-05 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. M 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 attorney's fees. 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 compliance with Governor's Executive Order 05-05 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. 1.1 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 Board's obligations under this contract. Termination will be effective when the Board sends written notice of termination to the Contractor. 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 2.42 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. N. 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. "Authorized Representative" shall mean the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. 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. "BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and which is a Party to the Contract D. "Personal Information" shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. E. "State" shall mean the state of Washington. 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 "subcontractor" and "subcontractors" mean subcontractor(s) in any tier. 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 "ADA" 28 CFR Part 35 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 contract shall be subject to the written approval of the Board's Authorized Representative and shall 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. 2.8 ATTORNEYS' FEES 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 bear its own attorney's fees and costs. 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 report. The Contractor must respond to the Board's requests for information or 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. In any case, the Contractor's financial records must be available for review by the 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 Contractor's fiscal 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. "Confidential Information" as used in this section includes: 1. All material provided to the Contractor by the Board that is designated as "confidential" by the Board; 2. All material produced by the Contractor that is designated as "confidential" by the Board; and 3. All personal information in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of government services, addresses, telephone numbers, social security number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health Insurance Portability 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 Materials. In the event the Materials are not considered "works for hire" under the U.S. 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. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the ability to transfer 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 other party's (respondent's) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's 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 the parties' choice of a mutually acceptable alternate 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 to the Contractor's performance or failure to perform the Contract. The Contractor's obligation to indemnify, defend, and hold harmless includes any claim by the Contractor's agents, employees, representatives, or any Subcontractor or its agents, employees, or representatives. The Contractor's obligation to indemnify, defend, and hold harmless 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 Services. This provision does not waive any of L&I's rights to collect from the Contractor. 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. Office of Minority and Women's Business Enterprises, 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 43.21 C 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 Representative or Authorized Representative's designee by writing (designation to be 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 laws, regulations and policies. In the event of the Contractor's non-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 dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.27 PAY EQUITY The Contractor agrees to ensure that "similarly employed" individuals in its workforce are compensated as equals, consistent with the following: A. Employees are "similarly employed" if the individuals work for the same employer, the performance of 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: 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. 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. 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 this contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39.12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's 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 Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written 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 no additional cost all records relating to the Contractor's performance 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 M. 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 Contractor's duties. Every subcontract shall include a term that the Board and the State of Washington are not liable for claims or damages arising from a Subcontractor's performance of the subcontract. 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, unemployment contributions, the Contractor's income or 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. Such termination shall be deemed "for cause." Termination shall take effect 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 payment to the Contractor in whole or in part, or may restrict the Contractor's right to perform duties under 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. "Termination for Cause" shall be deemed a "Termination for Convenience" when the Board determines that 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 Contractor's actions or negligence. 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. Preserve and transfer any materials, contract deliverables and/or the Board property in the Contractor's 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 ATTACHMENT I: ATTORNEY'S CERTIFICATION 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 Name Address Date 19 NoiiomJiSN00 �JOJ iON MJVNINI�3�Jd If, 0 CJ A If, 0 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Public Works Trust Fund Loan Funding Agreement for the Pine Road Basin Watershed Storm Sewer Improvements Project 7F Study Session Date: July 11, 2018 COUNCIL MEETING Date: Julv 18. 2018 Department: Presenter: PW & Utilities Katie Ketterer Phone: (360)473-5334 SUMMARY: The Public Works Trust Fund Loan will be used 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. Loan Funding 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: 0 Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda ❑x General Business ❑ Public Hearing RECOMMENDED MOTION: Move to authorize the Public Works Trust Fund Loan for the Pine Road Watershed Storm Sewer Improvements Project; 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 Form Updated 01/02/2018 ❑ Deny ❑ Table ❑ Continue ❑ No Action CONTRACT FACE SHEET Contract Number: PC18-96103-005 PUBLIC WORKS BOARD CONSTRUCTION LOAN CONTRACT 1. Contractor 2. Contractor Doing Business As (optional) City of Bremerton N/A 3456 th St, STE 100 Bremerton, WA 98337 3. Contractor Representative 4. Public Works Board Representative N/A N/A 5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End Date Date $3,881,330.00 Federal: ❑ State: Q Other: ❑ Contract Execution June 1, 2038 N/A: ❑ Date 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10. Tax ID# 11.SWV# 12.UB1# 13. DUNS# N/A SWV0000221-00 181-002-539 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: Attorney's Certification. FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD Scott Hutsell, Public Works Board Chair Date APPROVED AS TO FORM ONLY Signature Print Name Title May 02, 2018 Date Siqnature on file Sandra Ad ix Assistant Attorney General 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% Payment Month: June 1St 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 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 having a lien on that net revenue. As used here, "net revenue" means gross revenue minus expenses 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 referred to as the "ADA" 28 CFR Part 35.....................................................................................9 2.6 APPROVAL.............................................................................................................................9 2.7 ASSIGNMENT......................................................................................................................10 2.8 ATTORNEYS' FEES............................................................................................................ 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. ATTACHMENT I: ATTORNEY'S CERTIFICATION.................................................. 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. "Contract" shall mean this Construction Loan Contract. B. "Contractor' shall mean the 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. "The Board" shall mean the Washington State Public Works Board created in Revised Code of 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. 1.5 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. The Contractor acknowledges and agrees to the Board's right, upon delinquency in the payment of any 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 -contractors. "Sub -Contractors" shall 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. 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 Governor's Executive Order 05-05, or, as an alternative to completion of Governor's Executive Order 05-05, 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 accordance with Governor's 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 contact DAHP and the concerned tribe's cultural staff or 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 Governor's Executive Order 05-05. In the event that the Contractor finds it necessary to amend SCOPE OF WORK, the Contractor may be required to re -comply with Governor's Executive Order 05-05 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. M 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 attorney's fees. 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 compliance with Governor's Executive Order 05-05 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. 1.1 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 Board's obligations under this contract. Termination will be effective when the Board sends written notice of termination to the Contractor. 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 2.42 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. N. 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. "Authorized Representative" shall mean the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. 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. "BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and which is a Party to the Contract D. "Personal Information" shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. E. "State" shall mean the state of Washington. 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 "subcontractor" and "subcontractors" mean subcontractor(s) in any tier. 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 "ADA" 28 CFR Part 35 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 contract shall be subject to the written approval of the Board's Authorized Representative and shall 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. 2.8 ATTORNEYS' FEES 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 bear its own attorney's fees and costs. 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 report. The Contractor must respond to the Board's requests for information or 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. In any case, the Contractor's financial records must be available for review by the 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 Contractor's fiscal 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. "Confidential Information" as used in this section includes: 1. All material provided to the Contractor by the Board that is designated as "confidential" by the Board; 2. All material produced by the Contractor that is designated as "confidential" by the Board; and 3. All personal information in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of government services, addresses, telephone numbers, social security number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health Insurance Portability 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 Materials. In the event the Materials are not considered "works for hire" under the U.S. 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. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the ability to transfer 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 other party's (respondent's) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's 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 the parties' choice of a mutually acceptable alternate 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 to the Contractor's performance or failure to perform the Contract. The Contractor's obligation to indemnify, defend, and hold harmless includes any claim by the Contractor's agents, employees, representatives, or any Subcontractor or its agents, employees, or representatives. The Contractor's obligation to indemnify, defend, and hold harmless 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 Services. This provision does not waive any of L&I's rights to collect from the Contractor. 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. Office of Minority and Women's Business Enterprises, 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 43.21 C 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 Representative or Authorized Representative's designee by writing (designation to be 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 laws, regulations and policies. In the event of the Contractor's non-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 dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.27 PAY EQUITY The Contractor agrees to ensure that "similarly employed" individuals in its workforce are compensated as equals, consistent with the following: A. Employees are "similarly employed" if the individuals work for the same employer, the performance of 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: 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. 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. 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 this contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39.12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's 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 Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written 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 no additional cost all records relating to the Contractor's performance 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 M. 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 Contractor's duties. Every subcontract shall include a term that the Board and the State of Washington are not liable for claims or damages arising from a Subcontractor's performance of the subcontract. 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, unemployment contributions, the Contractor's income or 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. Such termination shall be deemed "for cause." Termination shall take effect 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 payment to the Contractor in whole or in part, or may restrict the Contractor's right to perform duties under 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. "Termination for Cause" shall be deemed a "Termination for Convenience" when the Board determines that 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 Contractor's actions or negligence. 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. Preserve and transfer any materials, contract deliverables and/or the Board property in the Contractor's 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 ATTACHMENT I: ATTORNEY'S CERTIFICATION 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 Name Address Date 19 .... ,,,,....,,,--, Exhibit 1A I Feet 50 100 Source: City of Bremerton Vicinity Map Pin Basin Outfall 107, 4 MI url w+ i a N ` r,' ! 1. v New 36" Storm1 Sewer r 41 Ir -14 , J •. �a a r l a _ w 24" Storm Sewer r +� fir,. ,t�,. �.. x '�• �q...,r� r i��. .li t u Y , , y flyw �I 1 M� i'L ,iM R . �bA' J" MA.. r�':'.�A `� 1 , .•!�. ,,, bk � � 1. ! �i.� M w , .7�n^fin::Ilrrx�rncd>neni C :.�mY�-r�(�rd l��tCcllaT.r�'St�al�•ra li:t[Yt^fri> �.wl CITY OF BREMERTON EAGLE AVENUE STORMWATER SUB -BASIN PROJECT to ALLEVIATE FLOODING and PROVIDE WATER QUALITY TREATMENT Condition and Need The storm water system in this residential sub -basin was constructed in WWII. The system has inadequate capacity and no water quality treatment capability. During a large (but not unusual) rainfall event, a several -square block area of the neighborhood will flood. This happens repeatedly and most recently in November, 2012. During that flood event water was over 2 feet deep in the streets, and ponded to the front doors and into the crawl spaces of numerous residences. This is a dangerous situation for neighborhood residents; the flooding builds rapidly once the system reaches capacity. This project is needed to make the neighborhood safe during storm events, and also provide water quality treatment for the sub -basin. Project Description This project will replace or upsize storm lines as indicated by hydraulic modeling so that the dangerous and recurring flooding condition is alleviated. Additionally, the project will provide water quality treatment that currently does not exist on the old system. Funding Request $970,000 Contact Information Chal Martin, P.E. Public Works and Utilities Director City of Bremerton ctidl.m r i ci.bremerton.wa.us (360) 473-5758 Public Works & Utilities 1100 Oyster Bay Ave. N Exhibit 3B Eagle Avenue Funding Bremerton, WA 98312' Phone (360) 473-5315 *ear Memorandum 2012 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 7G Updated 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) was consistent with the Engineer's Estimate, recent experience with City construction on 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 (Bid Schedule E) 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 (Bid Schedule E), and authorize amendments to the contract up to a total expenditure of $107,000 to match the project budget. 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: ❑x Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda 0 General Business ❑ Public Hearing RECOMMENDED MOTION: Move to award Bid Schedule E of the contract titled Pedestrian Crossing and Sidewalk Improvements Project to Transblue LLC, authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented, and authorize amendments to the contract up to a total expenditure of $107,000 to match the project budget. 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WORK. CONTRACTOR shall complete the WORK as specified or indicated in the CITY's Contract Documents entitled PEDESTRIAN CROSSING AND SIDEWALK IMPROVEMENTS ARTICLE 2. CONTRACT TIMES. The WORK shall obtain Physical Completion within 60 working days after the commencement date stated in the Notice to Proceed. Time is of the essence as to each and every deadline set forth in this agreement. This provision has been specifically negotiated. ARTICLE 3. LIQUIDATED DAMAGES. CITY and the CONTRACTOR recognize that time is of the essence for this Agreement and that the CITY will suffer financial loss if the WORK is not completed within the time specified in Article 2 herein, plus any extensions thereof allowed in accordance with Section 1-08.8 of the Standard Specifications which may be modified by the Special Provisions. They also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by the CITY if the WORK is not completed on time. Accordingly, instead of requiring any such proof, the CONTRACTOR shall pay the CITY liquidated damages in the amount of $1,000 per day after the date of Physical Completion for each phase. ARTICLE 4. CONTRACT PRICE. CITY shall pay CONTRACTOR for completion of the WORK in accordance with the Contract Documents in the amount set forth in the Bid Proposal, which shall include sales tax as provided in Section 1-07.2 of the Special Provisions. ARTICLE 5. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment in accordance with Section 1-09.9 of the Standard Specifications which may be modified by the Special Provisions. Applications for Payment will be processed by ENGINEER as provided in the Special Provisions Contractor Initials CONTRACT (Page 2 of 4) ARTICLE 6. CONTRACT DOCUMENTS. The Contract Documents which comprise the entire agreement between CITY and CONTRACTOR concerning the WORK consist of this Contract and the following attachments to this Contract: • Bid Proposal including the Proposal Forms, Performance Bond, ® Payment Bond, • Standard Specifications, • Amendments to the Standard Specifications, • Special Provisions, Contract Plans, Addenda numbers to , inclusive. • Change Orders which may be delivered or issued after Effective Date of the Agreement and are not attached hereto. There are no Contract Documents other than those listed in this Article 6. The Contract Documents may only be amended by Change Order as provided in Section 1-04.4 of the Standard Specifications which may be modified by the Special Provisions. ARTICLE 7. INDEMNIFICATION. The CONTRACTOR and CITY acknowledge and agree that they have negotiated the following in accordance with the requirements of RCW 4.24.115 and the CONTRACTOR specifically waives his immunity under industrial insurance under Title 51 RCW. To the fullest extent permitted by Laws and Regulations, the CONTRACTOR shall indemnify, defend, and hold harmless the CITY, ENGINEER, their consultants, subconsultants, and the officers, directors, employees, and agents of each and any of them, against and from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, all claims and liability arising under, by reason of, related, or incidental to the Contract Documents or any performance of the WORK, but not from the sole negligence or willful misconduct of the CITY and/or the ENGINEER as further defined in the Contract Documents. The provisions of this section shall survive the termination of the contract. Contractor Initials CONTRACT (Page 3 of 4) ARTICLE 8. ASSIGNMENT No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation monies that may become due and monies that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignorfrom any duty or responsibility under the Contract Documents. The CITY, in its sole discretion, may refuse to allow the CONTRACTOR to assign any or all of its duties, rights and/or responsibilities under the Agreement, except with regards to an assignment of funds for security purposes. In the case of an assignment for security purposes the CITY may condition its approval to the extent it deems necessary to assure that there will be adequate funds to complete the WORK and to pay a subcontractors and suppliers. ARTICLE 9. DAVIS BACON AND RELATED ACTS Bidder shall comply with the requirements of the Davis -Bacon and related acts (DBRA) as outlined in 29 CFR parts 1-7 when the contract for construction, alteration, and or repair exceeds $2,000, is federally assisted, and involves the employment of laborers and/or mechanics to perform the work. CITY and CONTRACTOR each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. IN WITNESS WHEREOF, CITY and CONTRACTOR have caused this Agreement to be executed the day and year first above written. 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