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12/11/2019 STUDY SESSION PACKET
______________________________________________________________ CITY COUNCIL 345 6th Street, Suite 100, Bremerton, WA 98337 Phone (360) 473-5280 * * * A M E N D E D * * * DECEMBER 11, 2019 CITY COUNCIL STUDY SESSION 5:00 PM in COUNCIL CONFERENCE ROOM 603 The Study Session is open to the public, but there will be no opportunities for input or participation; no action is anticipated; and the content of these items is subject to change. If approved by Council, the items will be placed on the December 18, 2019 Council Meeting Agenda: A.BRIEFINGS ON AGENDA ITEMS 1.Confirm Reappointment of Dan Nelson to the Design Review Board 2.Confirm Reappointment of Tory Gruber to the Design Review Board 3.Confirm Reappointment of David Farr to the Design Review Board 4.Confirm Reappointment of Nick Wofford to the Planning Commission 5.Confirm Appointment of Jeffrey Coughlin to the Planning Commission 6.Confirm Appointment of Michelle Ronquillo to the Planning Commission 7.Contract with Kitsap County Sheriff’s Office for Municipal Court Security Services 8.Acceptance of the 2020-2021 Office of Public Defense Grant for the Bremerton Municipal Court 9.Interlocal Agreement with the City of Poulsbo for Provision of Law Enforcement Behavioral Health Navigator Services 10.Second Amendment to the Kitsap County Agreement for Incarceration of City Prisoners 11.Tourism Promotion Services Agreements with Bremerton Historic Ships Association; Washington State Science and Engineering Fair; and Bremerton Chamber of Commerce 12.Ordinance amending Chapter 10.10 of the Bremerton Municipal Code entitled “Parking Code” relating to Parking Permits and Parking in Residential Zones 13.License Agreement with American Tower for the Installation of Sensus Base Station Equipment on Alexander Lake North Tower 14.Consent Agreement to Sublease Site at Alexander Lake South between American Tower and Google LLC 15.Management Agreement with Columbia Hospitality, Inc. for the Kitsap Conference Center at Bremerton Harborside 16.Management Agreement with Columbia Hospitality, Inc. for the Gold Mountain Golf Club 17.Ordinance No. 5388 amending Ordinance No. 5360 establishing City of Bremerton FY- 2019 Budget as amended by Ordinance No. 5367 Continued on back… 18. Salary Surveys Recommendations for Community Development Assistant and Project Assistant; Managing Engineer (Utilities); Managing Engineer (Transportation); and Administrative Project Manager 19. Public Works Agreement with Slabjack Geotechnical, Inc. for the Sidewalk Trip Hazard Removal Project 20. Contract Modification Agreement No. 1 to the Professional Services Agreement with the Johnston Group for Federal Legislative/Agency Representation Services 21. Equipment Purchase and Public Works Agreement with Ferguson Waterworks for a Sensus Flexnet System 22. Proposed Public Hearing on Ordinance amending Title 20 of the Bremerton Municipal Code to add a Permitting Process and Regulations for Temporary Encampments 23. Proposed Public Hearing on Ordinance No. 5389 adopting Comprehensive Plan Amendments; and Ordinance No. 5390 to adopt Zoning Code Amendments 24. Proposed Closed Record Public Hearing on Ordinance No. 5391 approving a Rezone of approximately 22.5 acres on Werner Road (from Industrial to Low Density Residential) B. GENERAL COUNCIL BUSINESS Public Works Committee Briefing (11/19/19 Meeting) – Chair Kevin Gorman Audit Committee Briefing (11/19/19 Special Meeting) – Chair Leslie Daugs Other General Council Business C. EXECUTIVE SESSION 10-Minutes to discuss "Potential Litigation" as allowed under RCW 42.30.110 (1)(i) Action is anticipated... D. ADJOURNMENT OF STUDY SESSION Americans with Disabilities Act accommodations provided upon request. Those requiring special accommodations should contact the City Clerk’s Office at (360) 473-5323 at least 24 hours prior to the meeting. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Confirm Reappointment of Dan Nelson to the Design Review Board Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: Executive Presenter: Mayor Wheeler Phone: (360) 473-5266 SUMMARY: Dan Nelson has been serving on the Design Review Board since May of 2017. Mr. Nelson has been selected for reappointment to Position 1 of the Board for an additional 4 years, with a new term ending date of December 31, 2023. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): No fiscal impacts STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to confirm reappointment of Dan Nelson to Position 1 of the Design Review Board with a term that will end on December 31, 2023. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A1 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Confirm Reappointment of Tory Gruber to the Design Review Board Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: Executive Presenter: Mayor Wheeler Phone: (360) 473-5266 SUMMARY: Tory Gruber has been serving on the Design Review Board since December of 2015. Mr. Gruber has been selected for reappointment to Position 2 of the Board for an additional 4 years, with a new term ending date of December 31, 2023. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): No fiscal impacts STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to confirm reappointment of Tory Gruber to Position 2 of the Design Review Board with a term that will end on December 31, 2023. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A2 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Confirm of Reappointment of David Farr to the Design Review Board Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: Executive Presenter: Mayor Wheeler Phone: (360) 473-5266 SUMMARY: David Farr has been serving on the Design Review Board since November of 2012. Mr. Farr has been selected for reappointment to Position 3 of the Board for an additional 4 years, with a new term ending date of December 31, 2023. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): No fiscal impacts STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to confirm reappointment of David Farr to Position 3 of the Design Review Board with a term that will end on December 31, 2023. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A3 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Confirm Reappointment of Nick Wofford to the Planning Commission COUNCIL MEETING Date: December 18, 2019 Department: Executive Presenter: Mayor Wheeler Phone: (360) 473-5266 SUMMARY: Nick Wofford has been serving on the Planning Commission since February 2014. Mr. Wofford has been selected for reappointment to Position 4 of the Commission for an additional four years, with a new term ending date of December 31, 2023. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): No fiscal impacts STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to confirm reappointment of Nick Wofford to Position 4 of the Planning Commission with a term that will end on December 31, 2023. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A4 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Confirm Appointment of Jeffrey Coughlin to the Planning Commission COUNCIL MEETING Date: December 18, 2019 Department: Executive Presenter: Mayor Phone: (360) 473-5266 SUMMARY: Jeffrey Coughlin has been selected to fill Position 3 of the Planning Commission, with a term ending date of December 31, 2023. Mr. Coughlin is a 6-year resident of Bremerton. ATTACHMENTS: Mr. Coughlin’s volunteer application is on file with the Mayor’s office. FISCAL IMPACTS (Include Budgeted Amount): No fiscal impacts STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to confirm the appointment of Jeffrey Coughlin to Position 3 of the Planning Commission with a term that will end on December 31, 2023. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A5 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Confirm Appointment of Michelle Ronquillo to the Planning Commission COUNCIL MEETING Date: December 18, 2019 Department: Executive Presenter: Mayor Phone: (360) 473-5266 SUMMARY: Michelle Ronquillo has been selected to fill the unexpired term of Position 6 of the Planning Commission, with a term ending date of December 31, 2022. This position became vacant due to a Commissioner’s resignation. Ms. Ronquillo is an 18-year resident of Bremerton. ATTACHMENTS: Ms. Ronquillo’s volunteer application is on file with the Mayor’s office. FISCAL IMPACTS (Include Budgeted Amount): No fiscal impacts STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to confirm the appointment of Michelle Ronquillo to Position 6 of the Planning Commission with a term that will end on December 31, 2022. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A6 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Contract with Kitsap County Sheriff’s Office for Municipal Court Security Services COUNCIL MEETING Date: December 18, 2019 Department: Municipal Court Presenter: Dawn Williams Phone: (360) 473-5242 SUMMARY: The Bremerton Municipal Court is entering into a new contract with the Kitsap County Sheriff’s Office for Court Security Services to provide security for the courthouse at 550 Park Avenue. ATTACHMENTS: Contract with Kitsap County Sheriff’s Office FISCAL IMPACTS (Include Budgeted Amount): $69,665.00 plus the cost of the replacement officer. This amount has already calculated into the budget. This is the same rate as 2019. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Contract between the City of Bremerton and Kitsap County Sheriff’s Office for Courthouse Security Services; 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 A7 1 Courthouse Security Services Contract CONTRACT NO. KC – COURTHOUSE SECURITY SERVICES CONTRACT This Courthouse Security Services Contract (“Contract”) is between Kitsap County, a Washington state political subdivision (“County”) by and through the Kitsap County Sheriff’s Office (“KCSO”), and the City of Bremerton, a Washington state municipal corporation (“City”). In consideration of the terms and conditions of this Contract, the parties agree as follows: SECTION 1. TERM AND EFFECTIVE DATE 1.1 The Contract will become effective on ________ and terminate on ________, unless terminated or extended. The Contract may be extended for additional consecutive terms at the mutual agreement of the parties. SECTION 2. SCOPE OF WORK 2.1 COUNTY RESPONSIBILITIES A. The County agrees to provide the City with one full-time armed KCSO Court Security Officer (“CSO”) to provide courthouse security screening services, as identified in this Contract, for the City of Bremerton Municipal Court (“Court”). For purposes of this Contract, “full-time” means eight hours per day five days per week, excluding court holidays and closures. B. The CSO shall be stationed at the main front entrance of the courthouse through which the public can enter the court building to enforce the Courthouse entry and identification system. The CSO will be responsible for operating the Courthouse security screening equipment for prohibited items (e.g. weapons). The CSO shall screen all items to include handbags, backpacks, briefcases, computers, strollers, and the like, prior to passing the screening area and entering the building. Detected prohibited items shall be brought to the visitor’s attention and, if legal, given back to the individual for removal from the premises before entry is allowed. When authorized by Court policy, the visitor may be permitted to store firearms in a locked compartment provided by the Court. Illegal items confiscated during the screening process shall be secured and turned over to the Bremerton Police Department. C. The CSO services are limited to screening at one stationary post. The CSO will remain at his/her authorized post at the entrance of the courthouse and will not be responsible for providing any other security services for the City or the Court (e.g. courtroom security, roving patrols, escort services, responding to duress alarms or escorting prisoners.) The CSO is not, and will not, be providing the services of a sworn law enforcement officer. D. In the event the assigned CSO is unavailable (e.g. mandatory training, annual or medical leave), the County agrees to provide the City with an alternate CSO to perform the assigned duties of the CSO under this Contract, subject to the payment of an additional fee as identified in Attachment A. 2 Courthouse Security Services Contract E. All County personnel assigned under this Contract shall remain the employees of the County and under the supervision and control of the KCSO, subject to the KCSO policies and procedures. The supervisory contact within KCSO shall be the Support Services Sergeant or such other KCSO employee as may be assigned. 2.2 CITY RESPONSIBILITIES A. In accordance with RCW 43.09.210, the City shall reimburse the County for all costs associated with providing the services under this Contract. B. The City acknowledges that the County is making one (1) CSO available for courthouse security services under this Contract and the limitations of the CSO duties. It is the responsibility of the City, at no cost to the County, to provide adequate coverage for the CSO during the regular morning, lunchtime, and afternoon breaks, consistent with the requirements of the KCSO collective bargaining agreements for the CSO, with an individual designated by the City. C. The City agrees to provide walk-through metal detectors (WTMD) and hand-held metal detectors for use by the CSO, and other monitoring and screening security equipment as needed. The City shall ensure that all screening security equipment, duress alarms, control panels, and battery-operated emergency lighting, if any, are functioning properly and maintained and tested on a regular basis. D. The City is solely responsible for assessing the safety and security needs of the Court and adding additional security personnel, monitoring equipment, and/or other safety and security resources and equipment as it deems appropriate. The County in no way warrants that one CSO is sufficient to meet the safety and security needs of the Court. E. The City shall promptly advise KCSO of any safety and security concerns, or misconduct regarding the assigned CSO. SECTION 3. COMPENSATION AND PAYMENT 3.1 Compensation. The City shall reimburse the County for the costs of providing the City with a full-time Step 12 KCSO Court Security Officer, the costs of which are as identified in the Attachment A: Compensation. The costs subject to reimbursement shall be subject to adjustments as may be provided for in the County’s collective bargaining agreement covering its employees. Both the County and City shall be bound by the terms and provisions of the County’s collective bargaining agreement covering court services for KCSO Court Security Officers now in effect and as amended during the term of this Contract. 3.2 Invoice. The County will submit one invoice to the City per month for payment of Services completed to date, unless otherwise agreed. The City shall pay the invoice within 30 days of receipt. 3 Courthouse Security Services Contract SECTION 4. TERMINATION 4.1 Convenience. Either party may terminate this Contract by giving 30 calendar days prior written notice to the other party. 4.2 Funding. If a party’s funding for the underlying services is withdrawn, reduced or limited in any way after the Contract has been signed or becomes effective, that party may immediately terminate the Contract notwithstanding any other termination provision in the Contract by providing written notice to the other party. Termination under this provision will be effective upon the date specified in the written notice of termination sent by the terminating party. SECTION 5. INDEMNIFICATION 5.1 The City will hold harmless, indemnify and defend the County, its officers, officials, employees and agents, from and against any and all claims, actions, suites, liability, loss, expenses, damages and judgments of any nature whatsoever, including reasonable costs and attorneys’ fees in defense thereof for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of the City’s acts, errors or omissions in connection of the performance of this Contract. 5.2 The County will hold harmless, indemnify and defend the City, its officers, officials, employees and agents, from and against any and all claims, actions, suites, liability, loss, expenses, damages and judgments of any nature whatsoever, including reasonable costs and attorneys’ fees in defense thereof for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of the County’s acts, errors or omissions in connection of the performance of this Contract. 5.3 The obligations under this Section include, without limitation, investigating, adjusting, and defending all claims alleging loss from action, error or omission, or breach of any common law, statutory or other delegated duty by the parties, the parties’ employees, agents or subcontractors. SECTION 6. NOTICE AND CONTRACT REPRESENTATIVES 6.1 Any notices, demands and other communications required by the Contract will be effective if personally served upon the other party or if mailed by first class mail, postage prepaid, to the other party’s Contract Representative at the address below. Notice may also be given by facsimile with the original to follow by regular mail. Notice will be deemed to be given three days following the date of mailing, or immediatel y if personally served. For service by facsimile, service will be effective at the beginning of the next working day County’s Contract Representative Contractor’s Contract Representative Name: Name: Title: Title: Address: Address: Phone: Phone: Fax: Fax: 4 Courthouse Security Services Contract SECTION 7. AMENDMENT, SUBCONTRACT, INDEPENDENT CONTRACTOR 7.1 Amendment. No amendment or modification to the Contract will be effective without the prior written consent of the authorized representatives of the parties. 7.2 Assignments. Except with the prior written consent of the other party, each party shall not assign or transfer, any right, duty, obligation, or remedy under the Contract. Any purported assignment or transfer in violation of this section shall be void. 7.3 Independent Contractor. Each party under the Contract shall be for all purposes an independent contractor. Nothing contained herein will be deemed to create an association, a partnership, a joint venture, or a relationship of principal and agent, or employer and employee between the parties. Neither Contractor nor its Personnel shall be, or be deemed to be, or act or purport to act, as an employee, agent or representative of the County. Contractor shall have complete responsibility and control over its Personnel. Contractor and its Personnel shall have no County employee-type benefits of any kind whatsoever, including without limitation, insurance, pension plan, vacation pay or sick pay, or other right or privilege afforded to County employees. Contractor and its Personnel shall be responsible for payment of all insurance, taxes, and benefits. SECTION 8. GOVERNING LAW 8.1 The Contract will be governed in all respects by the laws of the Washington State, both as to interpretation and performance, without regard to conflicts of law or choice of law provisions. Any action arising out of or in connection with the Contract may be instituted and maintained only in a court of competent jurisdiction in Kitsap County, Washington or as provided by RCW 36.01.050. SECTION 9. GENERAL PROVISIONS 9.1 Force Majeure. Neither party shall be liable to the other or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform any of their respective obligations in relation to the Contract, if the delay or failure was due to any cause beyond said party’s reasonable control including, but not limited to, any act of God, government or state action, war, snow, fire, civil commotion, insurrection or industrial action of third parties out of that party’s control. 9.2 No Third Party Beneficiary. No provision of the Contract is intended to, nor will it be construed to, create any third party beneficiary or provide any rights or benefits to any person or entity other than the parties. 9.3 Severability. If a court of competent jurisdiction holds any provision of the Contract to be illegal, invalid, or unenforceable, in whole or in part, the validity of the remaining provisions will not be affected, and the parties’ rights and obligations will be construed and enforced as if the Contract did not contain the particular provision held to be invalid. In the event of a conflict between the terms and conditions of this Contract and the KCSO 5 Courthouse Security Services Contract collective bargaining agreement for the CSO, the terms and conditions of the collective bargaining agreement shall control. 9.4 Counterparts. The Contract may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitution one and the same agreement. 9.5 Survival. Those provisions of this Contract that by their sense and purpose should survive expiration or termination of the Contract shall so survive. Those provisions include, without limitation: Sections 2 (Scope of Work), 5 (Indemnification), and 8 (Governing Law). 9.6 Entire Agreement. The parties acknowledge the Contract is the product of negotiation between the parties and represents the entire agreement of the parties with respect to its subject matter. All previous agreements, oral or written, are hereby revoked and superseded by the Contract. 9.7 Authorization. Each party signing below warrants to the other party, that they have the full power and authority to execute this Contract on behalf of the party for whom they sign. Dated this ____ day of ____________, 2019 Dated this ____ day of ____________, 2019 CITY OF BREMERTON KITSAP COUNTY SHERIFF ______________________________ __________________________________ GREG WHEELER, Mayor GARY SIMPSON, Sheriff ______________________________ Bremerton City Attorney 6 Courthouse Security Services Contract BOARD OF COUNTY COMMISSIONERS KITSAP COUNTY, WASHINGTON __________________________________ EDWARD E. WOLFE, Chair __________________________________ CHARLOTTE GARRIDO, Commissioner __________________________________ ROBERT GELDER, Commissioner ATTEST: ___________________________________ Dana Daniels, Clerk of the Board 7 Courthouse Security Services Contract ATTACHMENT A COMPENSATION Payment amount and schedule is set forth below. The City shall reimburse the County for the wages and all employment -based benefits necessary and incidental to providing the City with a full-time Step 12 KCSO Court Security Officer under the collective bargaining agreement covering court security officers, now in effect and as amended during the term of this Contract. The costs are as follows: Wages, benefits, and employer’s share of employment taxes (estimated to be $69,000 per year), Uniform (estimated to be $400.00 annually), and uniform cleaning (estimated to be $265.00 per year), Wages for overtime hours worked, Cost of living increases (COLA) as authorized by the Kitsap County Board of County Commissioners subsequent to and during the term of this Contract, and The City shall reimburse the County for all costs submitted with any workers’ compensation claim, including associated death benefits, arising out of the services provided under this Contract. In the event the CSO assigned to the City is absent for personal reasons (e.g. mandatory training, annual or medical leave), the City will pay the County an additional per diem rate consisting of the annual wages and benefits of a Step 12 CSO estimated to be $265.39 per day (annual salary divided by 260 work days per year) to cover the annual and medical leave absences, if the medical leave arises out of the services to be provided under this Contract. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Acceptance of the 2020-2021 Office of Public Defense Grant for the Bremerton Municipal Court COUNCIL MEETING Date: December 18, 2019 Department: Municipal Court Presenter: Dawn Williams Phone: (360) 473-5242 SUMMARY: The Bremerton Municipal Court applied to the Office of Public Defense for a grant and was awarded a grant in the amount of $36,000.00 for a 2 year cycle. $18,000 will be sent in January 2020 for use in 2020 and another check will be mailed in January 2021 for use in 2021. This money is intended to be used for improvements including continuing to adjust pay compensation for contracted attorneys, adding attorneys to reduce public defense caseloads and complying with the Supreme Court Public Defense Standards. ATTACHMENTS: Letter of Acknowledgment and Face Sheet FISCAL IMPACTS (Include Budgeted Amount): The OPD grant is a revenue source for $36,000 ($18,000 in 2020 and $18,000 in 2021) to be used directly for Public Defense costs in the City of Bremerton Municipal Court. These monies will be fully expended each year to assist with public defense. There are no matching funds required. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to accept the grant from the Office of Public Defense; and authorize the Court Administrator 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 A8 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Interlocal Agreement with the City of Poulsbo for Provision of Law Enforcement Behavioral Health Navigator Services COUNCIL MEETING Date: December 18, 2019 Department: Police Presenter: Randy Plumb Phone: (360) 473-5224 SUMMARY: The Behavioral Health Outreach Program will assist law enforcement in connecting individuals with behavioral health issues, who are identified as at-risk or in crisis, with treatment and other community resources, with the goal of diverting initial or further involvement in the criminal justice system. ATTACHMENTS: Interlocal Agreement Among the Cities of Bremerton and Poulsbo for Provision of Law Enforcement Behavioral Health Navigator Services FISCAL IMPACTS (Include Budgeted Amount): 2019 Calendar Year - $30,000. 2020 Calendar Year - $30,000. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Interlocal Agreement for Provision of Law Enforcement Behavioral Health Navigator Services; 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 A9 INTERLOCAL AGREEMENT AMONG THE CITIES OF BREMERTON AND POULSBO FOR PROVISION OF LAW ENFORCEMENT BEHAVIORAL HEALTH NAVIGATOR SERVICES This Agreement (“Agreement”) is by and between the City of Poulsbo (“Poulsbo”) and the City of Bremerton (“Bremerton”) and is made and entered into pursuant to the provisions of Chapter 39.34, RCW. WHEREAS, the undersigned cities hereto are public agencies as defined by Chapter 39.34, Revised Code of Washington, and are authorized to enter into joint or cooperative actions and to cooperate with each other on the basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population and other factors influencing the needs and development of local communities; and WHEREAS, law enforcement agencies are often the first responders to those in behavioral health crises or with behavioral health conditions and who are in need of connection to services, thereby creating a demand upon the undersigned cities respective to resources and impacting the communities of the undersigned cities, both individually and jointly; and WHEREAS, the City of Poulsbo Police Department has an established Behavioral Health Outreach Navigator Program which assists law enforcement in connecting individuals with behavioral health issues, who are identified as at-risk or in crisis, with treatment and other community resources, with the goal of diverting initial or further involvement in the criminal justice system; and WHEREAS, the City of Bremerton has determined that the cooperative utilization of the City of Poulsbo Police Department Behavioral Health Outreach Navigator Program would be of benefit to its Police Department and the community; and WHEREAS, the City of Poulsbo agrees that the cooperative utilization of its Behavioral Health Outreach Program is of benefit to the City of Bremerton, the City of Poulsbo and their respective communities; NOW THEREFORE, the City of Poulsbo and the City of Bremerton, through their respective legislative bodies, do hereby agree as follows: 1. SCOPE OF SERVICES. Poulsbo Police Department (“PPD”) shall assign, as staffing levels permit, to the City of Bremerton Police Department (“BPD”) a Police Navigator (“Navigator”) from the Poulsbo Police Department Behavioral Health Outreach Navigator Program (“Program”). The Navigator will be housed in the Bremerton Police Department and will work no more than 30 hours per week with BPD, assisting law enforcement officers to connect individuals with behavioral health issues to treatment and other community services. 2. NAVIGATOR ASSIGNMENT. PPD shall ensure the Navigator has the appropriate and necessary qualifications, training and experience to provide the services under this Agreement and retains the sole authority to remove, replace or change the assigned Navigator to BPD. However, PPD shall make reasonable attempts to avoid any significant disruptions to ongoing cases. BPD shall provide to the Navigator and PPD a designated member of the BPD Crisis Intervention Team, or other BPD law enforcement officer who shall serve as the point of contact for the Navigator services and shall supervise the Navigator and the provision of related services while on-site, in collaboration with the PPD Administrative Services Manager. a. The City of Poulsbo shall pay the salary, associated benefits and employment costs of the Navigator, with any overtime work needing prior approval by the PPD Administrative Services Manager. b. The Navigator shall be considered an employee solely of the PPD, reporting to, and supervised by the PPD Administrative Services Manager. The Navigator will adhere to the policies and procedures of the PPD, including the Behavioral Health Navigator Program policies. Should an actual or perceived conflict arise regarding the responsibilities, policies, or delegated duties of the Navigator, BPD shall promptly inform PPD. c. The Navigator shall continue to have ongoing responsibilities with the PPD and may be required to provide navigator support, attend mandatory trainings, conduct investigations or attend to other work-related matters for PPD or other partnered agencies, at the sole determination of PPD. Should BPD wish for the Navigator to participate or attend any BPD required meetings or trainings, BPD shall seek authorization from the PPD Administrative Services Manager. d. PPD shall provide the Navigator with a cellular phone and laptop for the provision of the services in this Agreement, which shall remain the property of PPD. e. BPD shall provide the necessary workspace and/or workstation in its Department which provides the Navigator at a minimum access to ILeads, or any replacement County-wide law enforcement records management system. The Navigator shall enter all contacts into ILeads or its successor, and through this agreement are given the authorization to do so. Such entry shall be in accordance with the policies and procedures of the PPD. 3. COSTS. a. For calendar year 2019, the City of Bremerton will remit a payment of Thirty Thousand Dollars ($30,000) to the City of Poulsbo, for services provided herein. Such payment shall be due upon full execution of this Agreement. Unless as especially provided for herein, all other costs for the services under this Agreement shall be borne by the City of Poulsbo. b. For calendar year 2020, the City of Bremerton will remit payment of Thirty Thousand Dollars ($30,000) to the City of Poulsbo, for services provided herein. Such payment shall be paid in four quarterly installments of Seven Thousand Five Hundred Dollars ($7,500). c. Unless as especially provided for herein, all other costs for the services under this Agreement shall be borne by the City of Poulsbo. 4. INSURANCE. The cities shall, to the best of their ability, coordinate their liability insurance coverages and/or self-insured coverages to the extent possible to fully implement and follow the agreement set forth herein. However, the consent of any liability insurance carrier or self- insured pool or organization is not required to make this agreement effective as between the member cities signing this agreement and the failure of any insurance carrier or self-insured pooling organization to agree or follow the terms of this provision on liability shall not relieve any individual city from its obligations under this agreement. 5. LIABILITY. Each City shall be responsible for the wrongful or negligent actions of its employees while participating in the Navigator Program as their respective liability shall appear under the laws of the State of Washington and/or Federal Law and this agreement is not intended to diminish or expand such liability. a. To that end, each City promises to hold harmless and release all the other participating Cities from any loss, claim or liability arising from or out of the negligent tortious actions or inactions of its employees, officers and officials. Such liability shall be apportioned among the parties or other at fault persons or entities in accordance with the laws of the State of Washington. b. Nothing herein shall be interpreted to: i. Waive any defense arising out of RCW Title 51. ii. Limit the ability of a participant to exercise any right, defense, or remedy which a party may have with respect to third parties or the officer(s) whose action or inaction give rise to loss, claim or liability including but not limited to an assertion that the officer(s) was acting beyond the scope of his or her employment. iii. Cover or require indemnification or payment of any judgment against any individual or city for intentionally wrongful conduct outside the scope of employment of any individual or for any judgment for punitive damages against any individual or city. Payment of punitive damage awards, fines or sanctions shall be the sole responsibility of the individual against whom said judgment is rendered and/or his or her municipal employer, should that employer elect to make said payment voluntarily. This agreement does not require indemnification of any punitive damage awards or for any order imposing fines or sanctions. 6. PUBLIC RECORDS. This Agreement does not establish a separate or independent legal entity subject to suit or to the Washington Public Records Act (PRA), Chapter 42.56 RCW. Accordingly, each party shall be responsible for retaining records it creates, owns or uses, in accordance with the applicable record retention laws. All public records requests shall be handled independently by the agency receiving the request in accordance with its own policies and state law. 7. EFFECTIVE DATE. This Agreement shall take effect on January 1, 2019 and shall expire December 31, 2020, unless otherwise terminated per Section 8 of this Agreement. 8. TERMINATION. This agreement can be terminated at any time without cause, with 30 days written notice by either party. Termination during any calendar year shall not entitle the City of Bremerton to a reduction or refund with respect to funds budgeted for, or otherwise committed to, the City of Poulsbo for Navigator Services. Termination of this Agreement shall not terminate paragraphs 4 or 5 hereof as to any incident arising prior to the termination of this Agreement and paragraphs 4 and 5 shall survive the termination of this Agreement with respect to any cause of action, claim, or liability arising on or prior to the date of termination. 9. NONDISCRIMINATION. No party shall discriminate against any person on the basis of race, color, creed, religion, national origin, age, sex, marital status, sexual orientation, veteran status, disability, or other circumstance prohibited by federal, state, or local law, and shall comply with Title VI of the Civil Rights Act of 1964, P.L. 88-354 and Americans with Disabilities Act of 1990 in the performance of this Agreement. 10. ADMINISTRATION. This Agreement is executed in accordance with the authority of Chapter 39.34, the Interlocal Cooperation Act. The parties do not create through this Agreement a separate legal entity subject to suit. The Police Chiefs of PPD and BPD, or their designees, will administer this agreement for each party, and will meet each quarter, or as needed, for the purpose of reviewing and discussing the operations and performance of the Navigator and the Navigator Program. 11. DISPOSAL OF PROPERTY. No real or personal property will be jointly acquired or owned by the parties under this Agreement. All property owned by each of the parties shall remain its sole property to hold and dispose of in its sole discretion. 12. 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 addres s state in this Agreement or such other address as may be hereafter specified in writing. For City of Poulsbo: For City of Bremerton Chief Dan Schoonmaker Chief James Burchett Poulsbo Police Department Bremerton Police Department 200 NE Moe Street 1025 Burwell Street Poulsbo, WA 98370 Bremerton, WA 98337 13. SEVERABILITY. If any section of this Agreement is adjudicated to be invalid, such action shall not affect the validity of any section not so adjudged. 14. WAIVER. Failure to enforce any provisions 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 a waiver of any other right or power. 15. AMENDMENT. This Agreement may only be amended by written agreement of all parties. 16. GOVERNING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws and administrative rules of the State of Washington. In the event of dispute, the venue for any action brought hereunder shall be in Kitsap County Superior Court. 17. FILING. This agreement shall be filed with the County Auditor or listed by subject on each agency’s website pursuant to RCW 39.34. IN WITNESS WHEREOF, the parties hereto have approved and executed this Agreement, this __________day of ____________, 2019. CITY OF POULSBO CITY OF BREMERTON ________________________ _________________________ BECKY ERICKSON, MAYOR GREG WHEELER, MAYOR APPROVED AS TO FORM: APPROVED AS TO FORM: _________________________ __________________________ JAMES HANEY ROGER LUBOVICH CITY ATTORNEY CITY ATTORNEY AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Second Amendment to the Kitsap County/City of Bremerton Agreement for Incarceration of Prisoners COUNCIL MEETING Date: December 18, 2019 Department: Police Presenter: Randy Plumb Phone: (360) 473-5974 SUMMARY: The City of Bremerton and Kitsap County entered into an agreement for Incarceration of Prisoners on January 22, 2018 (“Agreement”). The Agreement was amended on January 28, 2019 to extend the term to December 31, 2019 and make related changes. The proposed second amendment to the Agreement extends the term of the Agreement one additional year, expiring December 31, 2020. For calendar year 2020, the City will pay $115.79 per full bed-day. For calendar year 2021. The full bed-day rate for housing will be adjusted by the All Urban Consumers Index (CPI- U) (1982-1984=100) for the Seattle-Tacoma-Bremerton area pursuant to Subsection 6(a) of the Agreement. ATTACHMENTS: Second Amendment to Kitsap County/City of Bremerton Agreement for Incarceration of City Prisoners. FISCAL IMPACTS (Include Budgeted Amount): The 2020 Budget was adjusted for the new rate. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Second Amendment to the Kitsap County/City of Bremerton Agreement for Incarceration of City Prisoners; 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 A10 1 KC-231-17-B SECOND AMENDMENT KITSAP COUNTY AND CITY OF BREMERTON AGREEMENT FOR INCARCERATION OF CITY PRISONERS This Second Amendment to the Kitsap County and City of Bremerton Agreement for Incarceration of City Prisoners (“Second Amendment”) is made between Kitsap County, a Washington state municipal corporation ("County"), and the City of Bremerton, a Washington state municipal corporation ("Contract Agency"). In consideration of the mutual benefits and covenants contained herein, the parties agree that Kitsap County Contract No. KC-231-17 (“Agreement”), shall be amended as follows: 1. Section 3 (Contract Representatives) is amended to remove the reference to the name and email for the contract representative for both parties. 2. Subsection 6 (a) (Base Rate for House) is amended to change the base rate to $115.79 for each inmate for a 24-hour period, or portion thereof. 3. Subsection 7 (c) (Emergency, Non-emergent and Non-hospital Care Outside the Jail – Notification) is deleted and replaced with the following: Emergency, Non-emergent and Non-hospital Care outside the Jail - Notification. County has an obligation to provide medical care to inmates housed in its facilities. The County will use its best efforts to notify the Contract Agency when outside medical care is necessary for inmates. For emergency care, the County will notify the Contract Agency within four (4) business hours of transport (Monday through Friday, from 8 a.m. to 5 p.m. PST). For non -emergent and non-hospital care outside of the jail, the County will notify the Contract Agency before noon on the next business day. Notice will be provided by email to the Contract Agency at ________________ 4. Section 22 (Duration) is amended and replaced with the following: The Agreement shall be effective January 1, 20 20 through December 31, 2020, unless terminated or extended by agreement of the parties. Nothing in this Agreement shall be construed to make it necessary for the Contract Agency to continuously house prisoners with the County. 5. Effective Date. The effective date of this Second Amendment is January 1, 2020. 2 6. Insurance. If this Second Amendment extends the expiration date of the Agreement, then the Contract Agency shall provide an updated certificate of insurance and endorsement evidencing that any required insurance coverages are in effect through the new contract expiration date. The Contract Agency shall submit the certificate of insurance to: Kitsap County Risk Management Division, 614 Division Street, MS-7, Port Orchard, W ashington 98366. 7. Terms Unchanged. Except as expressly provided in this Second Amendment, all other terms and conditions of the Agreement, and any subsequent amendments, addenda, or modifications thereto remain in full force and effect. 8. Counterparts. This Second Amendment may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitution one and the same agreement. 9. Authorizations. The signatories to this Second Amendment represent that they have been appropriately authorized to enter into this Second Amendment on behalf of the Party for whom they sign, and that no further action or approvals are necessary before its execution. (Signatures on next page) 3 DATED this day of , 2019 DATED this day of , 2019 CITY OF BREMERTON KITSAP COUNTY SHERIFF’S OFFICE _______________________________ _______________________________ Greg Wheeler, Mayor Gary Simpson, Sheriff BOARD OF COUNTY COMMISSIONERS KITSAP COUNTY, WASHINGTON DATED this day of , 2019 _______________________________ EDWARD E. WOLFE, Chair _______________________________ CHARLOTTE GARRIDO, Commissioner _______________________________ ROBERT GELDER, Commissioner ATTEST: _______________________________ Dana Daniels, Clerk of the Board AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Tourism Promotion Services Agreements with Bremerton Historic Ships Association; Washington State Science and Engineering Fair; and Bremerton Chamber of Commerce Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: Finance Presenter: Melinda Monroe Phone: (360) 473-5306 SUMMARY: City Council approved Lodging Tax Awards for 2020 at the Council Meeting held October 21, 2019 and adopted the 2020 budget with Ordinance No. 5387, which included the recommendations for the award of Lodging Tax Funds to: Bremerton Historic Ships in the amount of $57,000.00; Washington State Science and Engineering Fair in the amount of $43,343.00; and to the Bremerton Chamber of Commerce in the amount of $43,814.00. The total amount awarded to applicants both new and returning in 2020 was $220,000.00. ATTACHMENTS: Tourism Promotion Services Agreements FISCAL IMPACTS (Include Budgeted Amount): $144,157 of the total $220,000 budgeted in the Lodging Tax Fund for 2020 for Lodging Tax awardees. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Tourism Promotion Services Agreements with Bremerton Historic Ships, Washington State Science and Engineering Fair, and the Bremerton Chamber of Commerce; 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 A11 Bremerton/BHSA Page 1 of 6 TOURISM PROMOTION SERVICES AGREEMENT Bremerton Historic Ships Association The City of Bremerton (“City”) and Bremerton Historic Ships Association(“Organization”), referred to collectively as the “Parties,” enter into the following Agreement for Tourism Promotion services: I.Scope: The Organization shall provide tourism promotion services for the City. Tourism promotion shall mean activities and expenditures designed to increase tourism to the City. Tourism promotion activities may include, but are not limited to, advertising, publicizing, or otherwise distributing information for the purpose of attracting and welcoming tourists to the City. The Organization shall provide to the City a work plan attached hereto as Exhibit A setting forth its goals and objectives for successful tourism promotion. The event(s) promoted by Organization must occur within the agreement Term, unless otherwise agreed to in writing by the City. II.Term: This agreement shall commence on January 1, 2020 and shall continue in full force and effect until December 31, 2020 unless terminated earlier pursuant to Section IX of this Agreement. III.Compensation: In consideration of the services provided pursuant to this Agreement City shall pay the Organization an amount not to exceed Fifty-Seven Thousand Dollars ($57,000.00) for Tourism Promotion services. However, funding for this Agreement is subject to the actual Hotel/Motel Tax funds received by the City. If Hotel/Motel Tax receipts are lower than budgeted funding may be decreased. A.Payment will be released when the following has been fulfilled: I.The Organization shall submit monthly billing invoices, by the 15th of the month following the end of the quarter in which services were performed, detailing how activities and services performed by the Organization during the preceding month have specifically promoted tourism in the City of Bremerton including measurable results. II.The Organization will provide proof of insurance, agree to the use of Automated Clearing House (ACH) Direct Deposit, a signed W-9, and current City Business license. B.Upon receipt of a conforming billing invoice, the City shall promptly process payment. If a billing invoice does not conform to this Agreement, the City may withhold payment until the invoice is brought into compliance. Sample of a conforming invoices and support is provided in Exhibit B. I.Such withholding does not relieve the Organization of its obligations under this Agreement. Failure by the Organization to submit all conforming billing invoices by January 10th, 2020 after the expiration of this Agreement may result in the forfeiture of remaining unbilled compensation. C.The Organization 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. Bremerton/BHSA Page 2 of 6 IV. Relationship of Parties: The Organization 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. The Organization and its personnel are independent contractors and not employees of the City. The Organization and its personnel have no authority to bind the City or to control the City’s employees and other contractors. None of the benefits provided by the City to its 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 Organization. Organization will be solely and entirely responsible for its acts and for the acts of the Organization'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 contractors to perform the same or similar work. As an independent contractor, the Organization 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 Organization or its personnel. As an independent contractor, Organization 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 Organization. V. Indemnification: Organization 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. 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. The provisions of this section shall survive the expiration or termination of this Agreement. VI. Insurance: Prior to and during the performance of the work covered by this Agreement, Organization shall provide the Risk Manager for the City with evidence that it has obtained and maintains in full force and effect during the term of this Agreement comprehensive general liability insurance coverage of at least $500,000.00 per occurrence. In the event Organization organizes, promotes or sponsors an event involving the sale or consumption of food or alcoholic beverages, Organization shall also provide evidence that it has obtained products liability and liquor liability insurance of at least $500,000.00 per occurrence, for each event. The City shall be named as additional insured and it shall be an affirmative obligation upon Organization 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 100, Bremerton, WA 98337 within two Bremerton/BHSA Page 3 of 6 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 Organization'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. VII.General Conditions: A. Reports and Information: When requested by the City, Organization 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 per Exhibit B. Organization shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts. B. Work Performed at Organization's Risk: Organization 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 Organization's own risk, and Organization 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. C. Place of Work: The Organization shall perform the work authorized under this Agreement at its offices in Bremerton, Washington. Any necessary meetings with the City staff shall take place at the City's offices, or at locations mutually agreed upon by the parties. D.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. E.Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. F.Modification: This Agreement may only be modified by written instrument signed by both Parties. G.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. Contracts Administrator Organization Address City of Bremerton John Hanson 345 6th Street, Suite 100 300 Washington Beach Avenue Bremerton, WA 98337 Bremerton, WA 98337 Bremerton/BHSA Page 4 of 6 H.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. I. 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. J.Compliance with Laws: Organization shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. K.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. L.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. M.Assignment: Any assignment of this agreement by the Organization without the written consent of the City shall be void. VIII.Nondiscrimination: Organization shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, sexual orientation or disability, except for employment actions based on bona fide occupational qualification. IX.Termination: This Agreement may be terminated by either party for convenience upon thirty (30) days written notice to the other party, or for cause if either party fails substantially to perform through no fault of the other and does not commence correction within five (5) days of written notice and diligently completes the correction thereafter. Upon such termination, City will be entitled to reports showing the status of all services Organization is providing to the City as of the effective date of termination. X.Termination of Other Contracts. This Agreement shall supersede all prior Agreements between the parties relating to the use of Hotel/Motel Tax. CITY OF BREMERTON BREMERTON HISTORIC SHIPS ASSOCIATION By: Greg Wheeler By: John Hansen its: Mayor its: President Date:____________________ Date:____________________ Bremerton/BHSA Page 5 of 6 Approved as to form: Attest: ______________________ ________________________ Bremerton City Attorney City Clerk Bremerton/BHSA Page 6 of 6 EXHIBIT A Scope of Services Marketing in support of the Turner Joy and the City of Bremerton including: Television Advertising, Website maintenance, Rack Cards on Washington State Ferries, Seattle Premier Attractions and Concierge Map. Turner Joy Operations. EXHIBIT B Page 1 | 4 Bremerton/BHSA Payment Terms Payment will be released when the following has been fulfilled: 1)Direct Deposit (ACH Agreement) form, current W-9, and City Business License have been received. 2) Monthly Fund Reimbursement Request form with support has been received, by the 15th of the month after the quarter following services performed. a)Follow the services outlined in your scope of work, include the funding reimbursement form (Form B.3.2019) incorporated into this contract via Exhibit B. 3)Please note that payment can be held up for the following: a)If a prior year award reporting is not submitted by March 1, 2020 via the attached reporting form. b)If required support documents are not received including: Automated Clearing House (ACH) Direct Deposit form, W-9, Copies of Receipts and Invoices for Reimbursement, and City Business license. EXHIBIT B Page 2 | 4 Bremerton/BHSA EXHIBIT B Page 3 | 4 Bremerton/BHSA CITY OF BREMERTON LODGING TAX FUND REIMBURSEMENT REQUEST FORM Date Contract No. Total Award Amount Organization Name Mailing address Contact Name:Phone: email: Date of Service Event/Program Title Total Request: Tourism Funding Recipient Name (printed): Tourism Funding Recipient Signature: Date: Please return form along with copies of supporting invoices and receipts to: City of Bremerton Contracts Administrator 346 6th Street, Ste 100 Bremerton, WA 98337‐1873 Form B.3 2019 Please list your expenses below, attach copies of matching receipts. If more space is needed please use page 2 of this form. *I certify under penalty of perjury, the information contained in this request for reimbursement is true and correct: I am authorized to certify and submit this request; and I am requesting reimbursement of money I actually spend for the project or event as described in the application and contract with the City of Bremerton. Page 1 EXHIBIT B CITY OF BREMERTON LODING TAX FUND REIMBURSEMENT REQUEST FORM Date Contract No. Organization Name Please list your expenses below, attach copies of matching receipts. Form B.3 2019 Page 2 CITY OF BREMERTON LODGING TAX WORKSHEET Please return to Melinda Monroe at melinda.monroe@ci.bremerton.wa.us or fax (360) 473-5306. The City of Bremerton is required by RCW 67.28.1816 to report the use of lodging tax funds each year. Your organization received lodging tax funds for 2019. Please complete this form and return to the City no later than March 1, 2020. If you have any questions or concerns please contact Melinda Monroe, Contracts Administrator at (360) 473-5306 or by email at Melinda.monroe@ci.bremerton.wa.us. Organization: Date: Completed By: Email: Telephone: ACTIVITY Activity Name Type ☐Event/Festival ☐Facility ☐Marketing Start Total Cost of Activity End Date ATTENDEE ESTIMATES Projected Actual Methodology Notes/Explanation Overall Attendance Attendees who traveled 50 miles or more to attend: Total Of Total, attendees who traveled from another state or country Attendees who stayed overnight: Paid accommodations Unpaid accommodations Paid Lodging nights PLEASE RETURN COMPLETED WORKSHEET BY MARCH 1, 2020 EXHIBIT B Bremerton/WSSEF Page 1 of 4 TOURISM PROMOTION SERVICES AGREEMENT Washington State Science & Engineering Fair (WSSEF) The City of Bremerton (“City”) and Washington State Science & Engineering Fair (“Organization”), referred to collectively as the “Parties,” enter into the following Agreement for Tourism Promotion services: I.Scope: The Organization shall provide tourism promotion services for the City. Tourism promotion shall mean activities and expenditures designed to increase tourism to the City. Tourism promotion activities may include, but are not limited to, advertising, publicizing, or otherwise distributing information for the purpose of attracting and welcoming tourists to the City. The Organization shall provide to the City a work plan attached hereto as Exhibit A setting forth its goals and objectives for successful tourism promotion. The event(s) promoted by Organization must occur within the agreement Term, unless otherwise agreed to in writing by the City. II.Term: This agreement shall commence on January 1, 2020 and shall continue in full force and effect until December 31, 2020 unless terminated earlier pursuant to Section IX of this Agreement. III.Compensation: In consideration of the services provided pursuant to this Agreement City shall pay the Organization an amount not to exceed Forty-Three Thousand and Three-hundred and Forty-Three Dollars ($43,343.00) for Tourism Promotion services. However, funding for this Agreement is subject to the actual Hotel/Motel Tax funds received by the City. If Hotel/Motel Tax receipts are lower than budgeted funding may be decreased. Payment will be released when the following has been fulfilled: a.The Organization shall submit monthly billing invoices, by the 15th of the month, detailing how activities and services performed by the Organization during the preceding month have specifically promoted tourism in the City of Bremerton including measurable results. b.The Organization will provide proof of insurance, agree to the use of Automated Clearing House (ACH) Direct Deposit, a signed W-9, and current City Business license. Upon receipt of a conforming billing invoice, the City shall promptly process payment. If a billing invoice does not conform to this Agreement, the City may withhold payment until the invoice is brought into compliance. Sample of a conforming invoices and support is provided in Exhibit B. a.Such withholding does not relieve the Organization of its obligations under this Agreement. Failure by the Organization to submit all conforming billing invoices by January 10th , 2020 after the expiration of this Agreement may result in the forfeiture of remaining unbilled compensation. The Organization 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. Bremerton/WSSEF Page 2 of 4 IV.Relationship of Parties: The Organization 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. The Organization and its personnel are independent contractors and not employees of the City. The Organization and its personnel have no authority to bind the City or to control the City’s employees and other contractors. None of the benefits provided by the City to its 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 Organization. Organization will be solely and entirely responsible for its acts and for the acts of the Organization'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 contractors to perform the same or similar work. As an independent contractor, the Organization 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 Organization or its personnel. As an independent contractor, Organization 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 Organization. V.Indemnification: Organization 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. 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. The provisions of this section shall survive the expiration or termination of this Agreement. VI.Insurance: Prior to and during the performance of the work covered by this Agreement, Organization shall provide the Risk Manager for the City with evidence that it has obtained and maintains in full force and effect during the term of this Agreement comprehensive general liability insurance coverage of at least $500,000.00 per occurrence. In the event Organization organizes, promotes or sponsors an event involving the sale or consumption of food or alcoholic beverages, Organization shall also provide evidence that it has obtained products liability and liquor liability insurance of at least $500,000.00 per occurrence, for each event. The City shall be named as additional insured and it shall be an affirmative obligation upon Organization 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 100, Bremerton, WA 98337 within two Bremerton/WSSEF Page 3 of 4 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 Organization'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. VII.General Conditions: A. Reports and Information: When requested by the City, Organization 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 per Exhibit B. Organization shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts. B. Work Performed at Organization's Risk: Organization 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 Organization's own risk, and Organization 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. C. Place of Work: The Organization shall perform the work authorized under this Agreement at its offices in Bremerton, Washington. Any necessary meetings with the City staff shall take place at the City's offices, or at locations mutually agreed upon by the parties. D.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. E.Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. F.Modification: This Agreement may only be modified by written instrument signed by both Parties. G.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 Organization Address Contracts Administrator Caroline M Stein 345 6th Street, Suite 100 PO Box 2412 Bremerton, WA 98337 Silverdale, WA 98383 Bremerton/WSSEF Page 4 of 4 H.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. I. 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. J.Compliance with Laws: Organization shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. K.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. L.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. M.Assignment: Any assignment of this agreement by the Organization without the written consent of the City shall be void. VIII.Nondiscrimination: Organization shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, sexual orientation or disability, except for employment actions based on bona fide occupational qualification. IX.Termination: This Agreement may be terminated by either party for convenience upon thirty (30) days written notice to the other party, or for cause if either party fails substantially to perform through no fault of the other and does not commence correction within five (5) days of written notice and diligently completes the correction thereafter. Upon such termination, City will be entitled to reports showing the status of all services Organization is providing to the City as of the effective date of termination. X.Termination of Other Contracts. This Agreement shall supersede all prior Agreements between the parties relating to the use of Hotel/Motel Tax. CITY OF BREMERTON WSSEF By: Greg Wheeler By: Caroline Stein its: Mayor its: WSSEF Treasurer Date:____________________ Date:____________________ Approved as to form: Attest:______________________ _______________________ _______________________ Bremerton City Attorney City Clerk Page 1 | 1 Bremerton/WSSEF EXHIBIT A Scope of Services Operations and Marketing of the Washington State Science and Engineering Fair: Materials include City of Bremerton logo and name as a Major Sponsor Marketing and advertising a free science film festival throughout the State Direct marketing to 6,000+ teachers across Washington Direct marketing to 1,140,592 students across Washington Direct marketing to 2,393 public schools with 18,218 students home schooled Supporting the current five Regional Fairs funneling students to Bremerton Developing new Regional Fairs to further grow tourism (WSSEF participants) Maintaining a website linked to the City of Bremerton website Including Bremerton on WSSEF Facebook and other social media Promoting Bremerton to national professional groups and educational societies The WSSEF in Bremerton is featured in multiple magazine and journal articles Promotional video’s on Facebook and Tweeted have gone global to 80+ countries WSSEF generates multi-media press releases throughout the year to 269 Washington newspapers, magazines, radio and TV stations Our volunteers network across Washington State attending conventions, making presentations, hosting how-to seminars and a considerable number of other outreach venues – every effort includes Bremerton Page 1 of 6 Bremerton/WSSEF EXHIBIT B Payment Terms Payment will be released when the following has been fulfilled: 1)Direct Deposit (ACH Agreement) form, current W-9, and City Business License have been received. 2)Monthly Fund Reimbursement Request form with support has been received, by the 15th of the month following services performed. a)Follow the services outlined in your scope of work, include the funding reimbursement form (Form B.3.2019) incorporated into this contract via Exhibit B. 3)Please note that payment can be held up for the following: a)If a prior year award reporting is not submitted by March 1, 2020 via the attached reporting form. b)If required support documents are not received including: Automated Clearing House (ACH) Direct Deposit form, W-9, Copies of Receipts and Invoices for Reimbursement, and City Business license. EXHIBIT B Page 2 of 6 Bremerton/WSSEF EXHIBIT B Page 3 of 6 Bremerton/WSSEF CITY OF BREMERTON LODGING TAX FUND REIMBURSEMENT REQUEST FORM Date Contract No. Total Award Amount Organization Name Mailing address Contact Name:Phone: email: Date of Service Event/Program Title Total Request: Tourism Funding Recipient Name (printed): Tourism Funding Recipient Signature: Date: Please return form along with copies of supporting invoices and receipts to: City of Bremerton Contracts Administrator 346 6th Street, Ste 100 Bremerton, WA 98337‐1873 Form B.3 2019 Please list your expenses below, attach copies of matching receipts. If more space is needed please use page 2 of this form. *I certify under penalty of perjury, the information contained in this request for reimbursement is true and correct: I am authorized to certify and submit this request; and I am requesting reimbursement of money I actually spend for the project or event as described in the application and contract with the City of Bremerton. Page 1 EXHIBIT B CITY OF BREMERTON LODING TAX FUND REIMBURSEMENT REQUEST FORM Date Contract No. Organization Name Please list your expenses below, attach copies of matching receipts. Form B.3 2019 Page 2 CITY OF BREMERTON LODGING TAX WORKSHEET Please return to Melinda Monroe at melinda.monroe@ci.bremerton.wa.us or fax (360) 473-5306. The City of Bremerton is required by RCW 67.28.1816 to report the use of lodging tax funds each year. Your organization received lodging tax funds for 2019. Please complete this form and return to the City no later than March 1, 2020. If you have any questions or concerns please contact Melinda Monroe, Contracts Administrator at (360) 473-5306 or by email at Melinda.monroe@ci.bremerton.wa.us. Organization: Date: Completed By: Email: Telephone: ACTIVITY Activity Name Type ☐Event/Festival ☐Facility ☐Marketing Start Total Cost of Activity End Date ATTENDEE ESTIMATES Projected Actual Methodology Notes/Explanation Overall Attendance Attendees who traveled 50 miles or more to attend: Total Of Total, attendees who traveled from another state or country Attendees who stayed overnight: Paid accommodations Unpaid accommodations Paid Lodging nights PLEASE RETURN COMPLETED WORKSHEET BY MARCH 1, 2020 EXHIBIT B City of Bremerton/Bremerton Chamber Page 1 of 5 TOURISM PROMOTION SERVICES AGREEMENT Bremerton Chamber of Commerce The City of Bremerton (“City”) and Bremerton Chamber of Commerce (“Organization”), referred to collectively as the “Parties,” enter into the following Agreement for Tourism Promotion services: I.Scope: The Organization shall provide tourism promotion services for the City. Tourism promotion shall mean activities and expenditures designed to increase tourism to the City. Tourism promotion activities may include, but are not limited to, advertising, publicizing, or otherwise distributing information for the purpose of attracting and welcoming tourists to the City. The Organization shall provide to the City a work plan attached hereto as Exhibit A setting forth its goals and objectives for successful tourism promotion. The event(s) promoted by Organization must occur within the agreement Term, unless otherwise agreed to in writing by the City. II.Term: This agreement shall commence on January 1, 2020 and shall continue in full force and effect until December 31, 2020 unless terminated earlier pursuant to Section IX of this Agreement. III.Compensation: In consideration of the services provided pursuant to this Agreement City shall pay the Organization an amount not to exceed Forty-Three Thousand and Eight Hundred and Fourteen Dollars ($43,814.00) for Tourism Promotion services. However, funding for this Agreement is subject to the actual Hotel/Motel Tax funds received by the City. If Hotel/Motel Tax receipts are lower than budgeted funding may be decreased. A.Payment will be released when the following has been fulfilled: I.The Organization shall submit monthly billing invoices, by the 15th of the month, detailing how activities and services performed by the Organization during the preceding month have specifically promoted tourism in the City of Bremerton including measurable results. II.The Organization will provide proof of insurance, agree to the use of Automated Clearing House (ACH) Direct Deposit, a signed W-9, and current City Business license. B.Upon receipt of a conforming billing invoice, the City shall promptly process payment. If a billing invoice does not conform to this Agreement, the City may withhold payment until the invoice is brought into compliance. Sample of a conforming invoices and support is provided in Exhibit B. I.Such withholding does not relieve the Organization of its obligations under this Agreement. Failure by the Organization to submit all conforming billing invoices by January 10th , 2020 after the expiration of this Agreement may result in the forfeiture of remaining unbilled compensation. C.The Organization 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. City of Bremerton/Bremerton Chamber Page 2 of 5 IV.Relationship of Parties: The Organization 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. The Organization and its personnel are independent contractors and not employees of the City. The Organization and its personnel have no authority to bind the City or to control the City’s employees and other contractors. None of the benefits provided by the City to its 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 Organization. Organization will be solely and entirely responsible for its acts and for the acts of the Organization'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 contractors to perform the same or similar work. As an independent contractor, the Organization 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 Organization or its personnel. As an independent contractor, Organization 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 Organization. V.Indemnification: Organization 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. 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. The provisions of this section shall survive the expiration or termination of this Agreement. VI.Insurance: Prior to and during the performance of the work covered by this Agreement, Organization shall provide the Risk Manager for the City with evidence that it has obtained and maintains in full force and effect during the term of this Agreement comprehensive general liability insurance coverage of at least $500,000.00 per occurrence. In the event Organization organizes, promotes or sponsors an event involving the sale or consumption of food or alcoholic beverages, Organization shall also provide evidence that it has obtained products liability and liquor liability insurance of at least $500,000.00 per occurrence, for each event. The City shall be named as additional insured and it shall be an affirmative obligation upon Organization 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 100, Bremerton, WA 98337 within two City of Bremerton/Bremerton Chamber Page 3 of 5 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 Organization'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. VII.General Conditions: A. Reports and Information: When requested by the City, Organization 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 per Exhibit B. Organization shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts. B. Work Performed at Organization's Risk: Organization 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 Organization's own risk, and Organization 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. C. Place of Work: The Organization shall perform the work authorized under this Agreement at its offices in Bremerton, Washington. Any necessary meetings with the City staff shall take place at the City's offices, or at locations mutually agreed upon by the parties. D.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. E.Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. F.Modification: This Agreement may only be modified by written instrument signed by both Parties. G.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 Organization Address Contracts Administrator Denise Frey, President/CEO 345 6th Street, Suite 100 286 4th Street Bremerton, WA 98337 Bremerton WA 98337 City of Bremerton/Bremerton Chamber Page 4 of 5 H.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. I. 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. J.Compliance with Laws: Organization shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. K.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. L.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. M.Assignment: Any assignment of this agreement by the Organization without the written consent of the City shall be void. VIII.Nondiscrimination: Organization shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, sexual orientation or disability, except for employment actions based on bona fide occupational qualification. IX.Termination: This Agreement may be terminated by either party for convenience upon thirty (30) days written notice to the other party, or for cause if either party fails substantially to perform through no fault of the other and does not commence correction within five (5) days of written notice and diligently completes the correction thereafter. Upon such termination, City will be entitled to reports showing the status of all services Organization is providing to the City as of the effective date of termination. X.Termination of Other Contracts. This Agreement shall supersede all prior Agreements between the parties relating to the use of Hotel/Motel Tax. CITY OF BREMERTON BREMERTON CHAMBER OF COMMERCE By: Greg Wheeler By: Denise Frey its: Mayor its: President/CEO Date:____________________ Date:____________________ City of Bremerton/Bremerton Chamber Page 5 of 5 Approved as to form: Attest: ______________________ ________________________ Bremerton City Attorney City Clerk Page 1 of 1 Bremerton Chamber EXHIBIT A Scope of Services Funding will be spent on maintenance of the Chamber website, Mobile App, utilities, postage, staffing of the Visitor Center and supplemental funding for the Armed Forces Festival. Page 1 of 3 Bremerton Chamber of Commerce EXHIBIT B Payment Terms Payment will be released when the following has been fulfilled: 1)Direct Deposit (ACH Agreement) form, current W-9, and City Business License have been received. 2) Monthly Fund Reimbursement Request form with support has been received, by the 15th of the month following services performed. a)Follow the services outlined in your scope of work, include the funding reimbursement form (Form B.3.2019) incorporated into this contract via Exhibit B. 3)Please note that payment can be held up for the following: a)If a prior year award reporting is not submitted by March 1, 2020 via the attached reporting form. b)If required support documents are not received including: Automated Clearing House (ACH) Direct Deposit form, W-9, Copies of Receipts and Invoices for Reimbursement, and City Business license. EXHIBIT B Page 2 of 3 Bremerton Chamber of Commerce EXHIBIT B Page 3 of 3 Bremerton Chamber of Commerce CITY OF BREMERTON LODGING TAX FUND REIMBURSEMENT REQUEST FORM Date Contract No. Total Award Amount Organization Name Mailing address Contact Name:Phone: email: Date of Service Event/Program Title Total Request: Tourism Funding Recipient Name (printed): Tourism Funding Recipient Signature: Date: Please return form along with copies of supporting invoices and receipts to: City of Bremerton Contracts Administrator 346 6th Street, Ste 100 Bremerton, WA 98337‐1873 Form B.3 2019 Please list your expenses below, attach copies of matching receipts. If more space is needed please use page 2 of this form. *I certify under penalty of perjury, the information contained in this request for reimbursement is true and correct: I am authorized to certify and submit this request; and I am requesting reimbursement of money I actually spend for the project or event as described in the application and contract with the City of Bremerton. Page 1 EXHIBIT B CITY OF BREMERTON LODING TAX FUND REIMBURSEMENT REQUEST FORM Date Contract No. Organization Name Please list your expenses below, attach copies of matching receipts. Form B.3 2019 Page 2 CITY OF BREMERTON LODGING TAX WORKSHEET Please return to Melinda Monroe at melinda.monroe@ci.bremerton.wa.us or fax (360) 473-5306. The City of Bremerton is required by RCW 67.28.1816 to report the use of lodging tax funds each year. Your organization received lodging tax funds for 2019. Please complete this form and return to the City no later than March 1, 2020. If you have any questions or concerns please contact Melinda Monroe, Contracts Administrator at (360) 473-5306 or by email at Melinda.monroe@ci.bremerton.wa.us. Organization: Date: Completed By: Email: Telephone: ACTIVITY Activity Name Type ☐Event/Festival ☐Facility ☐Marketing Start Total Cost of Activity End Date ATTENDEE ESTIMATES Projected Actual Methodology Notes/Explanation Overall Attendance Attendees who traveled 50 miles or more to attend: Total Of Total, attendees who traveled from another state or country Attendees who stayed overnight: Paid accommodations Unpaid accommodations Paid Lodging nights PLEASE RETURN COMPLETED WORKSHEET BY MARCH 1, 2020 EXHIBIT B AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Ordinance No. ______ amending Chapter 10.10 of the Bremerton Municipal Code entitled “Parking Code” relating to Parking Permits and Parking in Residential Zones COUNCIL MEETING Date: December 18, 2019 Department: Finance Presenter: Melinda Monroe Phone: (360) 473-5306 SUMMARY: This update to the Bremerton Municipal Code updates language in Sections 10.10.010 and 10.10.050 relating to parking definitions and permit requirements. ATTACHMENTS: Ordinance No. _______ FISCAL IMPACTS (Include Budgeted Amount): None. STUDY SESSION AGENDA: ☐ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance no. ______ amending Chapter 10.10 of the Bremerton Municipal Code regulating Residential Parking Permits and Recreational Vehicles on-street parking. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A12 1 Chapter 10.10 BMC – Parking Code ORDINANCE NO. ________ AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 10.10 of the Bremerton Municipal Code entitled “Parking Code,” relating to parking permits and parking in residential parking zones. WHEREAS, the City Council desires to update Chapter 10.10 of the Bremerton Municipal Code by amending certain provisions relating to parking permits and parking in residential parking zones, and to make related changes; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 10.10.010 of the Bremerton Municipal Code entitled "Definitions" is hereby amended to read as follows: 10.10.010 DEFINITIONS. For the purpose of this chapter, the words and phrases set forth in this section are defined as follows: "Boat or vessel" means every description of watercraft used or capable of being used as a means of transportation on the water including marine vehicle (trailered or non-trailered). "Block" means the area comprised of properties along each side of a street between two (2) intersections or an intersection and a road end. "BMC" means Bremerton Municipal Code. "City parking facility" means City owned or controlled parking facility, including parking garages and parking lots, whether paid or unpaid parking. "Department" means the Department of Financial Services, unless another department is referenced. "Director" means Director of Financial Services or other department director authorized by the Mayor to enforce this chapter, or their designee, including, but not limited to, parking enforcement officer, unless another director is referenced. "Downtown core" means that area in downtown Bremerton from and including Warren Avenue east to the waterfront and from and including 6th Street south to the waterfront and the Puget Sound Naval Shipyard. "Motor vehicle" means any self-propelled vehicle such as a car, truck, van, motorcycle, or any other similar self-propelled vehicle. "Paid parking zone" means the street, or part thereof, within the City where parking spaces are restricted to paid parking. "Parking generator" means anything that significantly increases commuter parking demand. Examples include, but are not limited to: ferry terminals, schools, hospitals, business districts, and military installations. "Parking permit" means a permit issued by the City that exempts the permit holder, when displayed properly, from the parking restrictionsthe timed parking restriction in effect in the permit holder’s restricted parking zone. 2 Chapter 10.10 BMC – Parking Code "Passenger load only zone" means a parking space reserved for active passenger loading or unloading only. These spaces will be marked with the time restriction applicable to them. "Peak parking hours" means those hours in a day where a particular vicinity experiences the greatest demand for parking. "Permit only zone" means a prescribed area where on-street parking is reserved for the exclusive use of the permit holders in the prescribed vicinity and their visitors holding a permit. "RCW" means Revised Code of Washington. "Recreational vehicle" means a travel trailer, motor home, truck camper, or camping trailer that is primarily designed and used as temporary living quarters, is either self-propelled or mounted on or drawn by another vehicle, is transient and is not immobilized or permanently affixed to a mobile home lot and further includes a dune buggy or off-road vehicle (trailered or non-trailered). "Resident," as used in this chapter, refers to an individual living in a dwelling unit or a business owner operating a business on property owned or leased by the business owner. "Resident vehicle" means a motor vehicle parked in a prescribed residential area by a resident of the area. "Residential area" means a contiguous area containing public rights-of-way or parts thereof primarily abutted by residential property or residential use. "Restricted parking zone" means an area of the City subject to parking restrictions including time limits or other restrictions contained in this chapter including paid parking zones, passenger load only zones, permit only zones and other restricted parking areas or spaces both in residential and nonresidential areas. "Residential Permit Identification Number" means a residential permit identification number assigned to 1) a specific vehicle license plate number, and 2) a dwelling unit and/or business location. "Residential restricted parking zone" means a restricted parking zone in a residential area. "Street" means any right-of-way, highway, avenue, lane, road, drive, place, boulevard, alley, way, sidewalk, planting or parking strip, shoulder and every way or place in the City of Bremerton open as a matter of right to public vehicular travel or parking or other similar public use. "Trailer" means every vehicle without motive power designed to be drawn by another vehicle and attached to the towing vehicle by means of a hitch or other connector, and ordinarily used for transporting items upon public rights-of-way. "Vehicle" means motor vehicle, car, truck, vehicle, van, tractor, bus, trailer (including boat trailer with or without a boat situated thereon), recreational vehicle, tractor or semi-trailer, motorcycle or boat or vessel (trailered or non-trailered), whether licensed or unlicensed, or motorized or nonmotorized, unless otherwise defined. "Visitor vehicle" means a motor vehicle parked by a person who is visiting a resident within a residential restricted parking zone. SECTION 2. Section 10.10.050 of the Bremerton Municipal Code entitled "Parking Permits" is hereby amended to read as follows: 10.10.050 PARKING PERMITS. (a) Residential Parking Permits. Residential parking permits may be issued to park in a residential restricted parking zone as follows: 3 Chapter 10.10 BMC – Parking Code (1) Residential parking permits will only be issued to applicants who are: (i) A legal resident of the residential restricted parking zone who has a motor vehicle registered in his or her name, or who has a motor vehicle for his or her exclusive use and under his or her control, or (ii) A person who owns or leases commercial property and actively engages in business activity within a residential restricted parking zone. (2) Residential parking permits may be issued for motor vehicles not exceeding twenty-two (22) feet in length or having a maximum gross vehicle weight in excess of ten thousand (10,000) pounds. (3) Parking in a residential restricted parking zone is restricted to parking within two (2) blocks of the dwelling unit or business location assigned to the residential permit or to any other area as designated by the Director, and (4) Permits will be issued for one (1) year terms and be renewed upon expiration conditioned upon meeting the residency requirements for a permit. There shall be a limit of two (2) residential parking permits issued per dwelling unit/business location, unless parking availability allows a greater number not to exceed four (4) permits per dwelling unit as determined by the Director in his or her sole discretion. (a) Residential Parking Permits. Residential parking permits may be issued to park in a residential restricted parking zone for motor vehicles not exceeding twenty-two (22) feet in length or having a maximum gross vehicle weight in excess of ten thousand (10,000) pounds only upon application of the following persons: (1) A legal resident of the residential restricted parking zone who has a motor vehicle registered in his or her name, or who has a motor vehicle for his exclusive use and under his control. (2) A person who owns or leases commercial property and actively engages in business activity within a residential restricted parking zone. Permits will be issued for one (1) year terms and be renewed upon expiration conditioned upon meeting the residency requirements for a permit. There shall be a limit of two (2) residential parking permits issued per dwelling unit/business location, unless parking availability allows a greater number not to exceed four (4) permits per dwelling unit as determined by the Director in his or her sole discretion. (b) Visitor Parking Permits. Visitor parking permits are authorized for residents of a residential restricted parking zone for bona fide transient use for visitors to the residence. No dwelling unit or place of business located in a residential restricted parking zone shall be issued more than one (1) visitor permit. It shall be the responsibility of the resident to control the use of the permit. Bona fide transient uses include: visiting guests, babysitters, repair persons and other similar visitors. The following is prohibited: (1) Parking in excess of seven (7) days within any thirty (30) day period unless approved administratively prior to such use; or (2) Parking more than one (1) block from the permitted residence, or (3) Use of visitor permits by residents for the residents’ vehicles. Visitor permits shall only be used for visitor vehicles. (c) Service Parking Permits. Service parking permits may be issued, on a short term temporary basis, for parking of vehicles on a street for a period of time exceeding a parking restriction time period established in BMC 10.10.030 and 10.10.040(a) when necessary. Service parking permits may be issued to landlords or their contractors for building improvements, 4 Chapter 10.10 BMC – Parking Code individuals working in a home service industry (home health care, etc.), or for other short-term use for the providing of services to a residence or to a business in a residential restricted parking zone or a nonresidential restricted parking zone. Service parking permits, and any extensions thereto, shall be issued for a period not to exceed thirty (30) days unless the Director determines that a longer period is warranted. The City may require proof of ongoing continuous work and of a City business or landlord license, as applicable, as a condition to maintaining or extending a valid permit. The following is prohibited: (1) Parking more than two (2) blocks from the permitted dwelling unit. (d) Recreational Vehicles. Residential permits may be issued for recreational vehicle parking as follows: (1) The parking permit shall be valid for a period of time not exceeding forty- five (45) days during a calendar year, (2) Parking during the permit term shall not exceed five (5) consecutive days in the same location, and (3) Recreational vehicles are prohibited from parking more than two (2) blocks from the permitted dwelling unit. (de) Display. Parking permits shall state thereon the particular restricted parking zone, the permit holder's residential permit identification number license number of the motor vehicle for which it is issued and the expiration date. Permits shall be displayed so as to be clearly visible through the rear window of the vehicle on the left side thereof or the front windshield on the left side when necessary. A parking permit shall not guarantee or reserve to the holder thereof an on-street parking space within the designated residential parking area. (ef) The Director may establish policies for the issuance of parking permits. Parking permits may be issued throughout different times of the year based on zones or other criteria. (fg) Permits issued pursuant to this section are not subject to the parking restriction time periods such as one (1), two (2), three (3), or four (4) hour parking set forth in BMC 10.10.030 and 10.10.040(a), however, they are subject to the five (5) day parking restriction set forth in BMC 10.10.070(b)(1) unless otherwise permitted with a temporary parking permit pursuant to BMC 10.10.070(b)(4). SECTION 3. Section 10.10.070 of the Bremerton Municipal Code entitled "Parking Violations” is hereby amended to read as follows: 10.10.070 PARKING VIOLATIONS. In addition to those statutes set forth in the Washington Model Traffic Ordinance as adopted pursuant to Chapter 10.04 BMC restricting standing, stopping and parking of vehicles, it shall be unlawful and punishable as a civil infraction for any person to commit any of the following actions: (a) Parking in Time Limit and No Repark Zones. (1) Downtown Core. Where a time limit and no re-parking is established by official signs, no vehicle may be re-parked on either side of the same named street (i.e., Pacific Avenue or 5th Street) in the downtown core during the same calendar day after the expiration of the posted time limit. For purposes of this section, a vehicle shall be deemed to be re-parked and 5 Chapter 10.10 BMC – Parking Code in violation of this section even if the vehicle is moved prior to the expiration of the posted time limit and is re-parked on either side of the same named street. (2) Residential. Where posted, it is unlawful for a vehicle to remain parked, or to be re-parked within four (4) blocks of the original parking location within a restricted parking zone, if the parking time or combined parking time for the vehicle exceeds the time limitations of the parking zone. Vehicles issued permits under Chapter 10.10 BMC shall be exempt from posted time limits according to the terms of the permit, however, they will not be exempt from the time restrictions set forth in subsections (b)(1), (2) and (3) of this section. (b) Parking or Storage of Vehicles Within Street. Except when otherwise provided by subsection (b)(4) of this section, the parking or storage of vehicles within any street shall be subject to the following parking restrictions in addition to other parking restrictions set forth in this chapter: (1) Time Restriction - No Repark. The parking or storage of any vehicle in the same parking location on a street in excess of five (5) consecutive calendar days without movement shall be unlawful. If any time after the initial five (5) consecutive calendar day period the vehicle is still parked in the same location on the street in violation of the five (5) day parking restriction and is then re-parked on the same street within the same block for any period of time up to twenty-four (24) hours, it shall be considered to be parked in the same location within the street and therefore still in violation of the five (5) day parking restriction. (2) Recreational Vehicles, Boats or Vessels, and Trailers - Additional Restrictions. No person shall park any recreational vehicle, boat or vessel, or trailer, as defined in BMC 10.10.010 on any street for longer than twenty-four (24) hours, unless such activity is authorized pursuant to a temporary permit pursuant to subsection (b)(4) of this section or to a residential permit pursuant to BMC 10.10.050(d). If any time after the initial unpermitted twenty-four (24) hour period the vehicle is still parked in the same location on the street in violation of the twenty-four (24) parking restriction and is then re-parked on the same street within the same block for any period of time up to twenty-four (24) hours, it shall be considered to be parked in the same location within the street and therefore still in violation of the twenty- four (24) parking restriction. (3) Oversized Vehicles - Additional Restrictions. The City Council finds that the parking and storage of commercial trucks, vans, tractor trailers, and semi-trailers, or combination thereof, exceeding twenty-two (22) feet in length (including any attached trailer) or with a maximum gross vehicle weight exceeding ten thousand (10,000) pounds presents unacceptable risks and hazards to public health, safety, and welfare when such vehicles are parked or stored on any street at times when such vehicles are not engaged in business or commercial activity. Accordingly, no commercial truck, vehicle, van, trailer, or semi-trailer, or combination thereof exceeding twenty-two (22) feet in length (including any attached trailer) or with a maximum gross vehicle weight exceeding ten thousand (10,000) pounds, whether licensed or unlicensed, may be stored or parked upon any street for longer than twenty-four (24) hours, unless such activity is authorized pursuant to a temporary permit pursuant to subsection (b)(4) of this section. (4) Temporary Parking Permits - Exception to Time Restrictions. A vehicle may park on a street for a period of time that exceeds the time restrictions set forth in this section, BMC 10.10.070, as well as any parking restriction time period established in BMC 10.10.030 and 10.10.040(a) if it has been specifically permitted, on a temporary short term limited basis and for the period of time permitted. Such a permit may be issued: 6 Chapter 10.10 BMC – Parking Code (i) To a resident when necessary such as when the resident will be out of town or some other similar short term use; (ii) With a public works right-of-way permit or other similar City or State authorization for construction or other related public purpose; or (iii) When otherwise authorized by the Director for good reason. (c) Unauthorized Disabled Parking. It is a traffic infraction for any person to park a vehicle in a public place provided on private property without charge or on public property reserved for physically disabled persons without a placard or special license plate as provided for in BMC 10.10.060 and RCW 46.19.050. If a person is charged with a violation, the person shall not be determined to have committed an infraction if the person produces in court or before the court appearance the placard or special license plate required under this section. Additionally, it is a traffic infraction pursuant to subsection (a) of this section for any vehicle displaying the placard or special license plate as provided for in BMC 10.10.060 and RCW 46.19.050 to violate any time restrictions imposed on nonmetered, on-street parking places reserved for persons with physical disabilities as well as non-reserved, on-street parking spaces. (d) Parking on City Property. A motor vehicle parking or standing on property owned, leased, or operated by the City is subject to the following restrictions: (1) Only motor vehicles belonging to persons who work for the City, who are transacting business with the City or who otherwise have specific permission from the City, may be parked upon such property; and (2) Where pavement markings or signs designate parking stalls on such property, all motor vehicles must be parked within such stalls and not elsewhere on such property, unless otherwise authorized by the City; and (3) Where a parking stall or stalls is designated by pavement markings or signage, any motor vehicle parked in these stalls must be parked within the designated limits of the parking space as indicated. (e) Parking Against Traffic. Except when otherwise provided by City code, ordinance or resolution, it shall be unlawful for any vehicle to stop or park on a street unless: (1) Stopped or parked parallel (or at an angle when authorized) to the traveled portion of the street; (2) In the direction of authorized traffic movement of the street immediately adjacent thereto; and (3) Within twelve (12) inches of the curb or as close as practicable to the edge of the shoulder. In the event of a conflict between the provisions of subsection (m) of this section and RCW 46.61.575 adopted as part of the Washington Model Traffic Ordinance pursuant to Chapter 10.04 BMC, the provisions of this subsection shall apply. (f) Expired Registration. It is unlawful to park any vehicle on a street or on public property without valid, current vehicle license plates or registration tab displayed according to law. (g) Inoperable Motor Vehicle. It is unlawful to park or store an inoperable motor vehicle on a street or on public property. For purposes of this subsection, an "inoperable motor vehicle" is defined as a motor vehicle which is: (1) By any reason of dismantling, disrepair, or other cause is incapable of being propelled under its own power; 7 Chapter 10.10 BMC – Parking Code (2) Unsafe for operation on the streets and highways of this State due to inability to comply with the Washington Model Traffic Ordinance as adopted pursuant to Chapter 10.04 BMC; or (3) Damaged to such extent as to render it illegal for operation on any street, including but not limited to any of the following: broken head or taillights, broken or missing mirrors, cracked or missing window or windshield, deflated tires, missing seats or steering wheel or other general conditions that would render a vehicle incapable of being driven on a public highway. (h) Junk and Abandoned Vehicles. Enforcement of junk and abandoned vehicles may be pursuant to Chapter 46.55 RCW adopted as part of the Washington Model Traffic Ordinance pursuant to Chapter 10.04 BMC. (i) Counterfeit Permits. It is unlawful for any person to copy, reproduce, or otherwise counterfeit a parking permit or to possess any counterfeit copy or facsimile of a City parking permit. (j) Unauthorized Use of Permit. It is unlawful for any person issued a parking permit by the City to: (1) Lend, sell or assign said permit to another; (2) Display any permit issued to another; or (3) Display any permit issued when the recipient of the permit is no longer eligible pursuant to Chapter 10.10 BMC. (k) Tampering with Parking Meters or Collection Devices. No person shall deface, injure, tamper with, open, or willfully break, destroy, or impair the usefulness of any parking meter or collection device. (l) Unlawful Parking in City Lot. In addition to other enforcement remedies, it is unlawful to park any vehicle on a City-owned parking lot or structure without paying the posted fee or parking in excess of posted time limits or in violation of use restrictions. (m) Obliterating Tire Markings. It is unlawful to conceal, obliterate, or erase markings on vehicle tires made by a parking enforcement officer for the purpose of recording parking time. (n) False Application. It is unlawful for any person to intentionally provide false or misleading information on any application for a parking permit. (o) Failure to Surrender Permit. The Director is authorized to revoke the residential parking permit of any person found to be in violation of its intended use. Upon written notification of permit revocation by the Director, it shall be unlawful for any person to fail to surrender a parking permit as directed. (p) Parking Fee - Nonpayment. It is unlawful to park a vehicle in any parking space monitored by a parking fee collection device, including parking meters, without payment as indicated on the collection device. (q) Parking Fee - Time Permitted. It is unlawful to park a vehicle in any parking space monitored by a collection device, including parking meters, for a consecutive period of time longer than that limited period of time for which parking is lawfully permitted in the time zone, irrespective of the amount of money deposited in such collection device. (r) Habitation in Vehicles. No person shall park and/or occupy any vehicle on any street for the purpose of habitation in such vehicle. For purpose of this section, habitation means to camp, live or occupy within such vehicle for residential purposes. 8 Chapter 10.10 BMC – Parking Code SECTION 4. Corrections. The City Clerk and codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener, clerical, typographical, and spelling errors, references, ordinance numbering, section/subsection numbers and any references thereto. SECTION 5. Severability. If any one or more sections, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 6. 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 ____________________, 2019. _________________________________ ERIC YOUNGER, Council President Approved this ________ day of ________________________, 2019. _________________________________ GREG WHEELER, Mayor ATTEST: APPROVED AS TO FORM: __________________________________ _________________________________ ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the ________ day of ______________________, 2019. EFFECTIVE the ________ day of ______________________, 2019. ORDINANCE NO. ________. R:\Legal\Legal\Ordinances\Finance\2019.09.30 BMC 10.10 - Parking Code AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 License Agreement with American Tower for the Installation of Sensus Base Station Equipment on Alexander Lake North Tower COUNCIL MEETING Date: December 18, 2019 Department: Public Works Presenter: Melinda Monroe Phone: 360-473-5306 SUMMARY: This License agreement with American Tower is for the placement of City owned equipment on the existing north tower on parcel 292401-2-002-2008 located on Water Utility property. The equipment includes the Sensus Base Station M400 purchased via the Ferguson Sensus Purchase and Installation agreement. American Tower and the City of Bremerton have a current agreement for the land lease which is set to expire on June 20, 2020 and is currently in negotiation for the terms of this long-term land lease renewal. The current land lease gives the City of Bremerton access to install our equipment on this tower per section 10.b. The License Agreement is at no cost to the City with an initial term of 5-years with three 5-year renewal terms. ATTACHMENTS: License Agreement with Scope of Work and drawings, American Tower NTP. FISCAL IMPACTS (Include Budgeted Amount): $0 installation for these items are included in the 2020 budget and are expensed under the Ferguson Sensus Base Station Equipment purchase and installation agreement. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move that the City enter into a license agreement for the communication site on parcel 292401-2- 002-2008 with American Tower; 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 A13 LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 LICENSE AGREEMENT ATC Contract No: ________________ This LICENSE AGREEMENT (“Agreement”) is entered into as of the latter signature date hereof (“Effective Date”) by and between American Tower Delaware Corporation, a Delaware corporation, with a place of business at 10 Presidential Way, Woburn, MA 01801 (“Licensor”) and City of Bremerton, WA, with a place of business at 100 Oyster Bay Avenue N, Bremerton, WA 98312 (“Licensee”). I. TOWER FACILITY INFORMATION: Site Name: West Bremerton Site Number: 83092 Address and/or location of Tower Facility: 1301 Union Avenue, Bremerton, WA 98312-3202 Tower Facility Coordinates: Lat. 47° 32' 52.334" N47.54787064 Long. 122° 42' 16.496" W-122.70458220 II. NOTICE & EMERGENCY CONTACTS: Licensee’s local emergency contact (name and number): Milenka Hawkins-BatesMelinda Monroe (360) 473-533306. Licensor’s local emergency contact: Network Operations Communications Center (800) 830 -3365. Notices to Licensee shall be sent to Licensee’s address above to the attention of Milenka HawkinsMelinda Monroe -Bates. Notices to Licensor shall be sent to Licensor’s address above to the attention of Contracts Manager. Licensor’s Remittance Address: American Tower Corporation, 29637 Network Place, Chicago, IL 60673-1296; all payments shall include a reference to the Site Name and Site Number as identified above in Section I. III. PERMITTED USE OF TOWER FACILITY BY LICENSEE: Transmitting and Receiving frequencies: See Exhibit A for specific frequencies. Antenna mount height on tower: See Exhibit A for specific location. All other permitted uses of the Tower Facility including Licensee’s Approved Equipment, and the Licensed Space are further described in Section 4 of this Agreement and Exhibits A and B attached hereto. IV. FEES & TERM: Monthly License Fee: Zero and 00/100 Dollars ($0.00), increased by the Annual Escalator on the first anniversary of the Commencement Date of this Agreement and each anniversary of the Commencement Date thereafter during the Term (as defined in Appendix I). Annual Escalator: Four percent (4%). Application Fee: N/A Relocation Application Fee: N/A Site Inspection Fee: N/A Initial Term: A period of five (5) years beginning on the Commencem ent Date. The “Commencement Date” shall be the earlier of: (i) the date of Licensor’s issuance of a NTP or (ii) January 13, 2019. Renewal Terms: 3 additional periods of 5 years each. Connection Fee (as described in Subsection 5(b)): N/A LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Electricity for operation of Approved Equipment is to be provided by (check one): Licensor, with the cost of such electricity to be paid by Licensee at the initial rate of $______ per month (“Utility Fee”) subject to adjustment pursuant to Subsection 5(b), OR Licensee, at its sole expense. V. TERMS & CONDITIONS: The attached terms and conditions are incorporated herein by this reference. VI. OTHER PROVISIONS: Other provisions: (check one): None As listed below A. PCN/PCN Retention Fee/Cross-Default. Licensee, an Affiliate of Licensee or any entity or individual acting on behalf Licensee or an Affiliate of Licensee shall only issue Prior Coordination Notices (“PCNs”) for the Permitted Frequencies set forth in Exhibit A and shall not issue PCNs for any other frequencies at this Tower Facility or at any other tower facility owned and/or operated by Licensor unless Licensee has submitted an Application for use of the subject frequencies to Licensor for which a partially executed License Agreement shall be signed by Licensee and returned to Licensor within sixty (60) d ays of the submittal of the Application. Licensee shall withdraw PCNs filed for any frequencies which are not licensed to Licensee by Licensor, no more than ten (10) days from the date of Licensee’s withdrawal of an Application or Licensor’s election to not process a Licensee-submitted Application. Failure to comply with the terms of this Subsection A shall constitute an event of default pursuant to Section 21 hereof (a “PCN Default”) for which the cure period is set forth in Section 21. In the event Licensee fails to cure a PCN Default within the cure period set forth in Section 21, then, in addition to all other obligations of Licensee under this Agreement, Licensee shall pay Licensor Twenty Five Thousand and 00/100 Dollars ($25,000.00) per month as liquidated damages for each tower facility wherein Licensee maintains an active PCN in breach of this Subsection A (“PCN Retention Fee”). Licensor and Licensee acknowledge that holding PCNs in violation of this Subsection A reduces Licensor’s opportunity to license space at Licensor’s tower facilities and since the actual amount of such lost revenue is difficult to determine, Licensor and Licensee agree that the PCN Retention Fee is a reasonable estimate of the damages that would accrue if a breach occurred. Licensor and Licensee agree that the PCN Retention Fee is fair and reasonable and would not act as a penalty to the breaching Party. The PCN Retention Fee shall be remitted by Licensee within ten (10) days of Licensor’s written notice to Licensee of Licensee’s uncured default of this Subsection A and Licensee shall continue to remit payment of the PCN Retention Fee on a monthly basis on or before the first day of each calendar month while such default of this S ubsection A remains uncured. In the event that Licensor does not receive the PCN Retention Fee on or before the first day of each month, then Licensor may, at its option, declare a default of this Agreement and all agreements between Licensor and Licensee and the PCN Retention Fee shall continue to be due and payable as set forth herein until the time Licensee withdraws the subject PCNs. B. Notwithstanding anything to the contrary in this Agreement, the offer expressed to Licensee in this Agreement shall automatically become null and void with n o further obligation by either Party hereto if a structural analysis of the Tower Facility completed after the execution of this Agreement by Licensor but before the commencement of the installation of Licensee’s Approved Equipment indicates that the Tower Facility is not suitable for Licensee’s Approved Equipment unless Licensor and Licensee mutually agree that structural modifications or repairs shall be made to the Tower Facility on mutually agreeable terms. C. In no event shall Licensee's use of the Tower Facility, or operation of any of its equipment thereon, be conducted in a manner that interferes with Licensor's lighting system located on any of the towers, building systems, or, in the event that Licensee’s equipment is installed on the rooftop of a building, with equipment of any kind used by building tenants who are not tenants of Licensor. In the event that such interference does occur, Licensee shall be solely responsible to reimburse Licensor for any and all costs LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 required to modify and/or upgrade Licensor’s lighting system, to comply with all necessary FAA/FCC regulations, as a result of said interference. D. Licensor and Licensee agree and acknowledge that Licensee shall be responsible for painting the transmission lines to match the colors of the tower. E. Licensor and Licensee agree and acknowledge that this Agreement is contingent upon the ground lessor’s consent. [Signatures appear on next page] LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 IN WITNESS WHEREOF, each Party in consideration of the mutual covenants contained herein, and for other good and valuable consideration, intending to be legally bound, has caused this Agreement to be executed by its duly authorized representative as of the day and year written below; provided, however, that this Agreement shall not become effective as to either Party until executed by both Parties. LICENSOR LICENSEE American Tower Delaware Corporation, City of Bremerton, WA a Delaware corporation By: ______________________________ By ______________________________ Print Name: ________________________ Print Name: Wayne HamiltonGreg Wheeler Its: ______________________________ Its: Utility/Facility ManagerMayor Date: ______________________________ Date: ______________________________ LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 TERMS AND CONDITIONS 1. DEFINITIONS. Capitalized terms defined in the body of this Agreement are indexed by location in Appendix I attached hereto. Capitalized terms used in Agreement but not defined herein are defined in Appendix I. 2. GRANT OF LICENSE. Subject to the terms of this Agreement, Licensor hereby grants Licensee a non-exclusive license to install, maintain and operate the Approved Equipment at the Licensed Space. All Approved Equipment shall be and remain Licensee’s personal property throughout the Term of this Agreement. Licensor shall maintain the Tower Facility in good order and repair, wear and tear, damage by fire, the elements or other casualty excepted. In no event shall Licensee’s license as granted herein include rights to use the ai r space above the Approved Equipment, and Licensor reserves the right to install, construct and/or operate additional improvements or equipment of Licensor or others above Licensee’s Approved Equipment, including Licensee’s shelter (commonly referred to as “stacking”), provided that such additional improvements or equipment do not materially and adversely interfere with the access to or operation of the Approved Equipment, including Licensee’s shelter. Licensee is not required to utilize a stackable shelter, provided that, if Licensee opts to install a shelter that is not stackable and if Licensor receives an offer to license the air space above Licensee’s non-stackable shelter by a proposed subsequent user, Licensor may, at its election, upon thirty (30) days’ prior written notice require Licensee to replace such non -stackable shelter with a stackable shelter of a comparable size, provided that the proposed subsequent user agrees in writing to be wholly responsible for the cost of Licensee’s shelter replacement. Subject to any limitations contained in the Ground Lease, Licensor grants Licensee a right of access to the Tower Facility 24 hours per day, 7 days per week during the Term. Licensor grants Licensee a designated location for the installation of Licensee’s utilities over, under or across the Tower Facility (collectively, “Easement”). Licensee shall be responsible for any and all Damage or loss that results from the installation of any cables or utility wires by Licensee or any company or person retained by Licensee (including a public utility company), including, without limitation, any damage or loss that results from the accidental cutting of utility wires or cables of any other party operating at the Tower Facility. Licensor shall provide Licensee with one set of keys and/or codes to access the Tower Facility. Licensee shall be responsible for ensuring that Licensor has, at all times, a complete and accurate written list of all employees and agents of Licensee who have been provided the keys or access codes to the Tower Facility. Licensor shall have the right to continue to occupy the Tower Facility and to grant rights to others to the Tower Facility in its sole discretion. Licensee shall have no property rights or interest in the Tower Facility or the Easement by virtue of this Agreement. If Licensor’s right to license space on the Tower Facility to Licensee is subject to a right of first refusal for the benefit of a third party and if such third party exercises its right of first refusal prior to the Commencement Date, Licensor may terminate this Agreement upon written notice to Licensee. 3. EXHIBITS. Within forty-five (45) days following the Commencement Date, Licensee shall provide Licensor with as-built or construction drawings showing the Approved Equipment as installed in both hard copy and electronic form (“Construction Drawings”); such Construction Drawings shall include the location of any shelters, cabinets, grounding rings, cables, and utility lines associated with Licensee’s use of the Tower Facility. Upon receipt, Licensor shall attach the Construction Drawings as Exhibit C hereto. In the event that Licensee fails to deliver the Construction Drawings as required by this Section, Licensor may cause such Construction Drawings to be prepared on behalf of Licensee and Licensor shall assess a fee for such Construction Drawings in an amount equal to one hundred twenty percent (120%) of the actual cost of obtaining the Construction Drawings including in-house labor, which upon invoicing shall become immediately due and payable by Licensee. In the event of inconsistency or discrepancy between (a) Exhibit A and Exhibit B hereto, Exhibit A shall govern, and (b) between Exhibit A (with respect to Approved Equipment and antenna locations) together with Exhibit B (with respect to Ground Space installation locations) and Exhibit C hereto, Exhibits A and B shall govern, notwithstanding any approval or signature by Licensor or its agents. Licensee hereby acknowledges and agrees that installation of the Approved LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Equipment must be in strict accordance with the approved Construction Drawings and Exhibits A and B. Notwithstanding the forgoing, Licensee shall not infer nor shall acceptance of the Construction Drawings by Licensor be deemed to be a representation by Licensor that (i) such Construction Drawings or the plans and specifications described therein are in compliance with federal, state or local laws, ordinances, rules or regulations, (ii) that such installation shall not cause impermissible or unlawful interference, or (iii) that such installation is consistent with Licensee’s permitted installation as specifically set forth in Exhibits A and B hereto. 4. USE. Subject to the terms of any Ground Lease, Licensee shall be permitted the non-exclusive right to install, maintain, operate, service, modify and/or replace its Approved Equipment at the Licensed Space, which Approved Equipment shall be utilized for the transmission and reception of wireless voice and data communications signals (such transmission and reception to be solely within the Permitted Frequencies , and, if the Permitted Frequencies include licensed spectrum, within the spectrum licensed to Licensee by the FCC). If as of the Effective Date, Licensee’s wireless business consists of a one -way network which requires only that signals be transmitted from the Tower Facility, then notwithstanding the foregoing sentence, Licensee’s use of the Tower Facility under this Agreement shall be limited to the transmission of wireless voice and data communications signals from the Tower Facility. Licensee’s permitted use with respect to the Licensed Space shall be limited solely to that enumerated in this Section, and, except pursuant to a separate agreement with Licensor, no person or entity other than Licensee shall have the right to install, maintain or operate its equipment or transmit or receive communications at, or otherwise use, the Licensed Space. 5. LICENSE FEES; TAXES; ASSESSMENTS. (a) Monthly License Fee. The Monthly License Fee as adjusted by the Annual Escalator, shall be payable in advance on the first day of each calendar month during the Term beginning upon the Commencement Date. If the Commencement Date is not the first day of a calendar month, the Monthly License Fee for any partial month shall be prorated on a daily basis. (b) Utilities. All utility services installed on the Tower Facility for the use or benefit of Licensee shall be made at the sole cost and expense of Licensee and shall be separately metered from Licensor’s utilities. Licensee shall be solely responsible for extending utilities to the Tower Facility as necessary for the operation of the Approved Equipment and for the payment of utility charges including connection charges and security deposits incurred by Licensee. Licensee shall obtain and pay the cost of telephone connections, the installation of which shall be in compliance with the procedures for installation and maintenance of Approved Equipment set forth herein. (c) Taxes. (i) Property Taxes. Licensee shall be responsible for the reporting and payment when due of any tax directly related to Licensee’s ownership or oper ation of the Approved Equipment and such reporting and payment shall be made directly to the appropriate tax authorities. Licensee shall reimburse Licensor in full for any taxes assessed against Licensor but attributed to the Approved Equipment within thirty (30) days of Licensor’s request for such reimbursement. Licensor shall pay all property taxes directly assessed against Licensor’s property or for which Licensor is obligated to pay under the Ground Lease, provided, however, Licensee shall reimburse Licensee’s pro rata share of such taxes. Licensee’s pro rata share shall be determined by dividing such taxes evenly among all users Licensor has permitted to utilize any portion of the Tower Facility. Licensee shall reimburse Licensor for such taxes within thirty (30) days of Licensor’s request for such reimbursement. (ii) Sales; Use and Other Taxes. Licensor shall be responsible for billing, collecting, reporting, and remitting sales, use and other taxes directly related to any Monthly License Fee or other payments received pursuant to this Agreement. Licensee shall be responsible for reimbursing Licensor for all such sales, use and other taxes billed related to any payments received pursuant to this Agreement. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Licensor shall add to the Monthly License Fee or any other payment then due and payable any associated sales, use or other tax, which shall be paid by Licensee at the same time and in the same manner as the Monthly License Fee or other payment due and payable under this Agreement. (d) Federal Use Fees & Assessments. In the event that a particular Licensed Space is at a Tower Facility located on property which is owned by the Bureau of Land Management (“BLM”) or the United States Forest Service (“USFS”), Licensee shall reimburse Licensor for any and all fees or assessments attributable to this Agreement or Licensee’s use of the Licensed Space paid by Licensor to the BLM or USFS related to such Tower Facility within thirty (30) days of Licensor’s request for such reimbursement. (e) Restrictions on Reimbursement. Solely for the purposes of determining Licensee’s portion of such taxes, fees, assessments or similar expenses as contemplated in this Section 5 or anywhere else in this Agreement, if any such amounts are determined in whole or in part on the income or profits (aside from gross revenues) of any person or entity, Licensor and Licensee shall agree on a fixed amount (subject to the Annual Escalator, which shall be applied in the same manner as it is applied to the Monthly License Fee), that shall be treated as such tax, fee, assessment or similar expense in lieu of the actual amount, which agreed to amount shall be set forth in an amendment to this Agreement. (f) Payment Address. All payments due under this Agreement shall be made to Licensor at Licensor’s Remittance Address shown on page 1 of this Agreement or such other address as Licensor may notify Licensee of in writing. (g) No Set-Off. All payments due under this Agreement shall be due without set-off, notice, counterclaim or demand from Licensor to Licensee. (h) Effect of Partial Payment. No endorsement or statement on any check or letter accompanying a check for payment of any monies due and payable under the terms of this Agreement shall be deemed an accord and satisfaction, and Licensor may accept such check o r payment without prejudice to its right to recover the balance of such monies or to pursue any other remedy provided by law or in this Agreement. 6. TERM. (a) Initial Term. The Initial Term of this Agreement shall be as specified on page 1. (b) Renewal Term. The Term of this Agreement may be extended for each of the Renewal Terms as specified on page 1 of this Agreement, provided that at the time of each such renewal, (i) the Ground Lease remains in effect and has not expired or been terminated, (ii) Licensee is not in default hereunder and no condition exists which if left uncured would with the passage of time or the giving of notice result in a default by Licensee hereunder and (iii) the original Licensee identified on page 1 of this Agreement has not assigned, sublicensed, subleased or otherwise transferred any of its rights hereunder. Provided that the foregoing conditions are satisfied, this Agreement shall automatically renew for each successive Renewal Term unless either Party notifies the other in writing of its intention not to renew this Agreement at least one hundred eighty (180) days prior to the end of the then existing Term. (c) Holdover Term. If Licensee fails to remove the Approved Equipment at the expiration of the Term, such failure shall be deemed to extend the Term of this Agreement on a month-to-month basis under the same terms and conditions herein except that (i) a monthly license fee shall be due on or before the first day of every calendar month during such month-to-month term in an amount equal to one hundred fifty percent (150%) of the Monthly License Fee in effect for the last month of the Term prior to the commencement of such month-to-month term (“Holdover Fee”), such Holdover Fee to escalate annually on the anniversary of the Commencement Date by an amount equal to six percent (6%) of the Holdover Fee in effect for the month immediately prior to the month in which such escalation takes place, and (ii) the month-to-month extension shall be terminable upon fifteen (15) days’ prior written notice from either LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Licensor or Licensee to the other; provided, however, nothing contained herein shall grant Licensee the unilateral right to extend the Term of this Agreement af ter the expiration of the Term. In addition to the monthly license fee payable to Licensor in the event of an extension under this Subsection 6(c), Licensee agrees to indemnify and hold Licensor harmless from any Damages arising out of or in connection with the extension, the operation of the Approved Equipment at the Tower Facility and Licensee’s failure to perform all of its obligations under this Agreement at the termination or earlier expiration of this Agreement. 7. COMMON EXPENSES. Licensee shall reimburse Licensor for Licensee’s pro-rata share of all common expenses (the “Common Expenses”) incurred by Licensor in the installation, operation, maintenance and repair of the Tower Facility, including, but not limited to, the construction, maintenance and repair of a common septic system and field, insurance, common utilities and any and all other costs of operating and maintaining the Tower Facility. Notwithstanding the foregoing, the cost and expenses associated with any Damage which is directly attributable to the acts or omissions of Licensee or Licensee’s contractors shall be borne solely by Licensee. Licensee shall not be required to pay any share of costs or expenses incurred to replace the Tower. In the event that Licensee also licenses space within a building or shelter owned by Licensor on the To wer Facility, Licensee shall also reimburse Licensor for its pro-rata share of all Common Expenses incurred for the operation, maintenance, repair and replacement associate d with such building or shelter, including, without limitation, the physical structure of the building, HVAC system, and common utility expenses. In the event that Licensee is connected to a generator or back -up power supply owned by Licensor, Licensee shall also reimburse Licensor for its pro-rata share of all expenses incurred for the operation, maintenance, repair and replacement associated with such generator, including, without limitation, fuel expenses . For the purposes of this Section, a “pro-rata share” of costs and expenses shall be determined based on the number of licensees using the Tower Facility (or with respect to a shared shelter or building, the number of licensees using Licensor’s shelter or building) on the first day of the month in which an invoice is mailed to Licensee. Licensee shall reimburse Licensor for Common Expenses within thirty (30) days following receipt of an invoice from Licensor. 8. SITE INSPECTION. Concurrent with Licensee’s delivery of a fully executed Agreement to Licensor, and before the date of any subsequent modifications to or installation of additional Approved Equipment, Licensee shall pay Licensor the Site Inspection Fee as defined on page 1 of this Agreement. Licensee acknowledges that any site inspection performed by Licensor of Licensee’s installation is for the sole purpose and benefit of Licensor and its affiliates, and Licensee shall not infer from or rely on any inspection by Licensor as assuring Licensee’s installation complies with any Applicable Laws, that the installation was performed in a good, workmanlike manner or that such installation will not cause impermissible or unlawful interference. 9. LABELING. Licensee shall identify its Approved Equipment, including its equipment cabinets and coaxial cable (at the top and bottom of the Tower) (unless such cabinet is located in a building or cabinet owned by Licensee) by labels with Licensee’s name, contact phone number and date of installation. In the event that Licensee fails to comply with this provision and fails to cure such deficiency within ten (10) days of Licensor’s written notice of such failure, Licensor may, but is not obligated to, in addition to any other rights it may have hereunder, label the Approved Equipment and assess against Licensee a fee of $1,500 (“Labeling Fee”) which shall be payable to Licensor upon receipt of an invoice therefor. Licensor shall not be responsible to Licensee for any expenses or Damages incurred by Licensee arising from the interruption of Licensee’s service caused by Licensor if Licensor is unable to identify the Approved Equipment as belonging to Licensee as a result of Licensee’s failure to label such Approved Equipment. 10. IMPROVEMENTS BY LICENSEE. (a) Installation and Approved Vendors. Prior to the commencement of any W ork on the Tower Facility, Licensee shall submit to Licensor for review and approval, which approval shall not be LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 unreasonably withheld, detailed plans and specifications accurately describing all aspects of the proposed Work. Licensee shall provide notice to Licensor no less than 5 days prior to the date upon which Licensee intends to commence Work at the Tower Facility, together with a construction schedule, so Licensor has the opportunity to be present during any such Work. Licensee shall not commence Work on the Tower Facility until Licensor issues to Licensee a NTP. Licensor shall issue a NTP only upon request from Licensee and receipt of the following complete and accurate documentation: (1) evidence that any contingencies set forth in the approval of Licensee’s Application have been satisfied; (2) evidence that Licensee has obtained all required governmental approvals including, but not limited to, zoning approvals, building permits, and any applicable environmental approvals including copies of the same; (3) a copy of the plans and specifications that have been approved by Licensor for the proposed equipment installation; (4) evidence that any party, other than Licensor but including Licensee, that will be performing the Work are on Licensor’s approved vendor list, with valid and current worker's compensation and general liability insurance certificates on file with Licensor naming Licensor as an additional insured and which otherwise satisfy the insurance coverage requirements set forth in Subsection 15(d) of this Agreement; and (5) a construction schedule. In no event will a NTP be issued prior to the payment by Licensee of a Relocation Application Fee when required pursuant to Subsection 10(c) of this Agreement. Notwithstanding anything to the contrary in this Agreement, Licensor reserves the right, in its sole discretion, to refuse to permit any person or company to climb the Tower. (b) Structural Analysis/Interference Analysis. Prior to the commencement of any Work on the Tower Facility by or for the benefit of Licensee, Licensor may, in its reasonable discretion, perform or cause to be performed a structural analysis or require a professional engineer’s certified letter to determine the availability of capacity at the Tower Facility for the installation or modification of any Approved Equipment and/or additional equipment at the Licensed Space by Licensee. Licensee agrees to remit payment to Licensor for all reasonable costs and expenses incurred by Licensor for such structural analysis or professional engineer’s certified letter (“Structural Analysis Fee”) within thirty (30) days following receipt of an invoice from Licensor. The foregoing charge shall be at Licensor’s prevailing rates for the performance of same or the amount Licensor’s vendor is then charging Licensor, as applicable. In the event a structural analysis is performed after the execution of this Agreement but prior to the initial installation of the Approved Equipment, and such analysis indicates that the existing Tower cannot accommodate the proposed installation of Licensee’s Approved Equipment thereon, Licensor shall notify Licensee that modification of the Tower is required and inform Licensee of the fee Licensor will charge Licensee to complete such modification (which fee shall be a reasonable estimate of Licensor’s actual cost of making such modifications). Such modification shall become part of the Tower Facility and be Licensor’s sole property. If Licensee elects not to pay such fee, and Licensee and Licensor do not otherwise reach an agreement regarding the costs of such modification, Licensee may terminate this Agreement upon written notice to Licensor. Prior to the commencement of any initial or subsequent construction or installation on the Tower Facility by or for the benefit of Licensee and/or the modification of Licensee’s Permitted Frequencies propagated from the Licensed Space, Licensor may elect to perform a shared site interference study (“SSIS”) and Licensee shall pay Licensor a fee of $1,600.00 per study (“SSIS Fee”), as adjusted annually on the anniversary of the Commencement Date by a percentage rate equal to the Annual Escalator. This fee shall be payable at the time Licensee pays the Relocation Application Fee where required pursuant to Subsection 10(c) of this Agreement, or immediately upon receipt of notice from Licensor that Licensor has determined that a SSIS is required. In the event a SSIS is performed after the execution of this Agreement by Licensor but prior to the installation of Licensee’s Approved Equipment, and such SSIS indicates that the proposed installation of Licensee’s Approved Equipment on the Tower is acceptable, such an indication in no way relieves Licensee of its obligations under Section 11 herein. (c) Equipment; Relocation, Modification, Removal. Licensor hereby grants Licensee reasonable access to the Licensed Space for the purpose of installing and maintaining the Approved Equipment and its appurtenances. Except as otherwise provided, Licensee shall be responsible for all site Work to be done on the Licensed Space or the Easement pursuant to this Agreement. Licensee shall provide all materials and shall pay for all labor for the construction, installation, operation, maintenance and repair of the Approved Equipment. Licensee shall not construct, install or operate any equipment or improvements on the Tower Facility other than those which are described on Exhibit A, alter the Permitted Frequencies, or alter the operation of the Approved Equipment. Licensee shall submit an Application, LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 utilizing Licensor’s then current form, to request the right to replace or modify its Approved Equipment, alter the Permitted Frequencies or increase the Ground Space, which Application shall be accompanied by a Relocation Application Fee. Licensor shall evaluate for approval the feasibility of Licensee’s request, which approval shall be in Licensor’s sole discretion. Licensee acknowledges that any such relocation or modification of the Approved Equipment may result in an increase in the Monthly License Fee. An amendment to this Agreement shall be prepared to reflect each addition or modification to Licensee’s Approved Equipment to which Licensor has given its written consent and the resulting increase in the Monthly License Fee, if any. Licensee shall have the right to remove all Approved Equipment at Licensee’s sole expense on or before the expiration or earlier termination of the License provided Licensee repairs any damage to the Tower Facility or the Tower caused by such removal. Within thirty (30) days of the expiration or termination of this Agreement for any reason, Licensee shall: (i) remove the Approved Equipment and any other property of Licensee at the Tower Facility at Licensee’s sole risk, cost, and expense; (ii) deliver the Licensed Space in substantially the same and in as good a condition as received (ordinary wear and tear excepted); and (iii) repair any damage caused by the removal of the Approved Equipment within ten (10) days of the occurrence of such damage. If Licensee fails to timely pay the Holdover Fee or does not remove its Approved Equipment within thirty (30) days after the expiration or termination of this Agreement, (i) the Approved Equipment shall be deemed conclusively and absolutely abandoned by Licensee and anyone claiming by, through, or under Licensee except for Hazardous Materials and waste and Approved Equipment containing Hazardous Materials and waste; and (ii) Licensor shall have the right to remove the Approved Equipment at Licensee’s sole expense and dispose of such Approved Equipment in any manner Licensor so elects, and Licensee shall reimburse Licensor for its expenses upon demand without off -set. 11. RF INTERFERENCE/ USER PRIORITY. (a) Definitions. For purposes of this Section 11, the following capitalized terms shall have the meanings set forth herein: (i) Interference includes any performance degradation, misinterpretation, or loss of information to a radio communications system caused by unwanted energy emissions, radiations, or inductions, but shall not include permissible interference as defined by the FCC, and in addition, with regard to Unlicensed Frequencies, congestion. (ii) Licensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are licensed by the FCC in the geographic area where the Tower Facility is located. (iii) A Licensed User is any user of the Tower Facility, including Licensee, which transmits and/or receives Licensed Frequencies at the Tower Facility, but only with respect to such Licensed Frequencies. (iv) A Priority User is any Licensed User of the Tower Facility that holds a priority position in relationship to Licensee for protection from Interference, as determined in this Section 11, which status is subject to change as set forth herein. (v) A Subsequent User is any user of the Tower Facility that holds a subordinate position in relationship to Licensee for protection from Interference, as determined in this Section 11, which status is subject to change as set forth herein. (vi) Unlicensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are not licensed by the FCC and are available for use by the general public in the geographic area where the Tower Facility is located. (vii) An Unlicensed User is any user of the Tower Facility, including Licensee, which transmits and/or receives Unlicensed Frequencies at the Tower Facility, but only with respect to such Unlicensed Frequencies. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 (b) Information. Licensee shall cooperate with Licensor and with other lessees, licensees or occupants of the Tower Facility for purposes of avoiding Interference and/or investigating claims of Interference. Upon request, Licensee, within ten (10) days of Licensor’s request, shall provide Licensor with a list of Licensee’s transmit and receive frequencies and Approved Equipment specifications necessary to resolve or investigate claims of Interference. (c) Unlicensed Frequencies. Notwithstanding any other provision contained herein, as among Licensor, Licensee and other users of the Tower or Tower Facility, (i) an Unlicensed User shall have no priority with respect to any other FCC Unlicensed Users with respect to Interference; and (ii) an Unlicensed User’s rights and obligations with respect to such Interference shall be determined and governed by FCC Rules and Regulations and any other Applicable Law. Licensor expressly disclaims any and all warranties and accepts no responsibility for management, m ediation, mitigation or resolution of Interference among FCC Unlicensed Users operating at the Tower Facility and shall have no liability therefor. (d) Licensed Frequencies. Subject to FCC Rules and Regulations and other Applicable Law, the Parties acknowledge and agree that the accepted industry standard for priority protection from Interference between multiple Licensed Users has been based on the priority of occupancy of each user to another user of the Tower or Tower Facility, which priority has been based on the order of submittal of its collocation Application by each user of the Tower or Tower Facility. Should the application of FCC Rules and Regulations and other Applicable Law not resolve any claims of Interference consistent with Subsections 11(e), 11(f) and 11(g) below, as among Licensor, Licensee and other users of the Tower Facility, (i) each Licensed User’s priority shall be maintained so long as the Licensed User does not change the equipment and/or frequency that it is entitled to use at the Tower Facility at the time of its initial occupancy; and (ii) Licensee acknowledges and agrees that if Licensee replaces its Approved Equipment or alters the radio frequency of the Approved Equipment to a frequency range other than as described on page 1 of this Agreement, Licensee will lose its priority position for protection from Interference with regard to Approved Equipment operating at the new frequency in its relationship to other Licensed Users which are in place as of the date Licensee replaces its Approved Equipment or alters its radio frequency, consistent with this Section 11. (e) Correction. (i) Licensee. Licensee agrees not to cause Interference with the operations of any other user of the Tower or Tower Facility and to comply with all other terms and provisions of this Section 11 imposed upon Licensee. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that Licensee’s Approved Equipment is causing Interference to the installations of Licensor or a Priority User, Licensee shall, within 48 hours of notification from Licensor, take such actions as are necessary to mitigate or eliminate the Interference, with the exception of ceasing Licensee's operations. If Licensee cannot mitigate or eliminate suc h Interference within the 48 hour period, Licensor may file a complaint with the FCC (currently the FCC’s Enforcement Bureau, Spectrum Enforcement Division) or if such other user of the Tower Facility which is subject to Interference from Licensee’s Approved Equipment is a Priority User, then upon the request of such Priority User consistent with Licensor’s contractual obligations owed to the Priority User, Licensor may require that Licensee turn off or power down its interfering Approved Equipment and only power up or use such Approved Equipment during off-peak hours specified by Licensor in order to test whether such Interference continues or has been satisfactorily eliminated. If Licensee is unable to resolve or eliminate, to the satisfaction of Licensor , such Interference within thirty (30) days from Licensee’s initial notification thereof, Licensee will immediately remove or cease operations of the interfering Approved Equipment. (ii) Licensor. Upon the request of Licensee, Licensor hereby covenants to take commercially reasonable efforts to prohibit a Subsequent User from causing Interference with the operations of Licensee to the extent Licensee is a Priority User pursuant this Section 11. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that a Subsequent User’s equipment is causing Interference to the installations of Licensee, upon Licensee’s LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 request, Licensor shall, within 48 hours of request, commence such actions as are necessary to mitigate or eliminate the Interference, with the exception of ceasing Subsequent User’s operations. (iii) Government Users. Notwithstanding the foregoing, if another user of the Tower or Tower Facility is a governmental entity, Licensor shall give such governmental enti ty written notice of the Interference within 5 Business Days of Licensor’s determination that such action is reasonably necessary. Licensor shall have the right to give the governmental entity 5 Business Days, or more as specified in the governmental site or occupancy agreement or as required by Applicable Law, from the receipt of such notice prior to Licensor being required to tak e any actions required by this Subsection 11(e) to cure such Interference. (f) FCC Requirements Regarding Interference. Nothing herein shall prejudice, limit or impair Licensee’s rights under Applicable L aw, including, but not limited to, FCC Rules and Regulations to redress any Interference independently of the terms of this Section 11. Notwithstanding anything herein to the contrary, the provisions set forth in this Section 11 shall be interpreted in a manner so as not to be inconsistent with Applicable Law, including, but not limited to, FCC Rules and Regulations and nothing herein relieves Licensee from complying with all Applicable Laws governing the propagation of radio frequencies and/or radio frequency interference. The Parties acknowledge that currently FCC Rules and Regulations govern the obligations of wireless telecommunication service providers with respect to the operation of equipment and use of frequencies. Consequently, th e provisions set forth in this Section 11 are expressly subject to CFR, Title 47, including but not limited to Part 15, et seq, governing Radio Frequency Devices; Part 20, et seq, governing commercial mobile radio services; Part 24, et seq, governing personal communications services; and Part 90, et seq, governing private land mobile radio services. In addition, in accordance with good engineering practice and standard industry protocols, licensee s employ a wide range of techniques and practices, including those involving the use of proper types of equipment as well those related to the adjustment of operating parameters, in a mutually cooperative effort to identify and mitigate sources of Interference. The obligation of Part 20 licensees, including, but not limited to, private paging, specialized mobile radio services, cellular radiotelephone service and personal communications services, to avoid Interference is set forth in 47 CFR Part 90, Subpar t N – Operating Requirements, §90.403(e). Claims of Interference are ultimately cognizable before the FCC’s Enforcement Bureau, Spectrum Enforcement Division. Licensee shall observe good engineering practice and standard industry protocols, applying such commercially reasonable techniques as constitute best practices among licensees, in the deployment of their frequencies and the operation of the Approved Equipment. If Licensee deploys its frequencies or operates the Approved Equipment in a manner which prevents any other user of the Tower or Tower Facility from decoding signal imbedded in their licensed frequencies such that the Spectrum Enforcement Division makes a determination that Licensee is the cause of the Interference and Licensee fails or refuses to mitigate or eliminate the Interference within the time and in the manner prescribed by the Spectrum Enforcement Division, Licensee shall be default of this Agreement and the remedies set forth in Section 22 shall apply. (g) Public Safety Interference. As of the Commencement Date, Licensor and Licensee are aware of the publication of FCC Final Rule, Private Land Mobile Services; 800 MHz Public Safety Interference Proceeding, Federal Register: November 22, 2004 (Volume 69, Number 224), Rules and Regulations, Page 67823-67853 (“Final Rule”). Claims of Interference made by or against users which are public safety entities shall be in compliance with the Final Rule as and when effective, or otherwise in accordance with FCC Rules and Regulations. (h) AM Detuning. The parties acknowledge that the FCC Rules and Regulations govern the obligations of Licensee with respect to the operation of the Approved Equipment. Consequently, the provisions set forth in this Agreement are expressly subject to the FCC Rules and Regulations, including, but not limited to 47 C.F.R. §§ 27.63, 22.371 and 73.1692. Licensee agrees, at Licensee’s sole cost, to comply with the foregoing as well as any and all other FCC Rules, Regulations and public guidance relating to AM detuning as such provisions currently exist or are hereafter modified. Licensee shall be fully responsible for any pre and/or post installation testing for AM interference at the Tower Facility and for the installation of any new detuning apparatus or the adjustment of any existing detuning apparatus that may be necessary to prevent adverse effects on the radiation pattern of any AM station caused by the installation LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 of the Approved Equipment. Licensee shall provide Licensor with written proof of such compliance. In the event that Licensee determines that pre or post-installation testing for AM interference is not required at the Tower Facility, such a determination shall be at Licensee’s sole risk. If Licensee or Licensor receives a complaint of interference from an AM broadcast station after the Approved Equipment is added to a Tower or a Tower is modified to accommodate Licensee, Licensee shall eliminate such interference within thirty (30) calendar days of the receipt of such complaint. Licensee’s failure to eliminate such interference within such thirty (30) day period shall constitute a default under this Agreement and Licensor shall have the right to eliminate such interference at Licensee’s expense. Licensee further agrees to indemnify Licensor in the event that Licensee’s failure to comply with the FCC Rules and Regulations prior to installation/modification of the Approved Equipment results in any administrative investigation, proceeding or adjudication with respect to Licensor. 12. SITE RULES AND REGULATIONS. Licensee agrees to comply with the reasonable rules and regulations established from time to time at the Tower Facility by Licensor, which may be modified by Licensor from time to time upon receipt by Licensee of such revised rules and regulations. Such rules and regulations will not unreasonably interfere with Licensee’s use of the Licensed Space under this Agreement. 13. DESTRUCTION; CONDEMNATION. (a) Destruction. If the Tower or other portions of the improvements at the Tower Facility owned by Licensor are destroyed or so damaged as to materially interfere with Licensee’s use and benefits from the Licensed Space, Licensor or Licensee shall be entitled to elect to cancel and terminate th is Agreement on the date of such casualty and any unearned Monthly License Fee paid in advance of such date shall be refunded by Licensor to Licensee within thirty (30) days of such termination date. Notwithstanding the foregoing, Licensor may elect, in its sole discretion, to restore the damaged improvements, in which case Licensee and Licensor shall remain bound to the terms of this Agreement but Licensee shall be entitled to an abatement of the Monthly License Fee during the loss of use. If the Tower is so damaged that reconstruction or repair cannot reasonably be undertaken wi thout removing the Approved Equipment, then (i) Licensor may, upon giving written notice to Licensee, remove any of the Approved Equipment and interrupt the signal activity of Licensee, (ii) Licensee may, at Licensee’s sole cost and expense, install temporary facilities pending such reconstruction or repair, provided such temporary facilities do not interfere with the construction, rebuilding or operation of the Tower, (iii) Licensor agrees to provide Licensee alternative space, if available, on the Tower or at the Tower Facility during such reconstruction/repair period and (iv) should Licensor not substantially restore or replace the Tower in a fashion sufficient to allow Licensee to resume operations thereon within 6 months of the date of casualty, provided that such 6 month period shall be automatically extended for so long as Licensor has commenced and diligently continues to restore or replace such Tower, and Licensee’s operation has been materially disrupted for sixty (60) or more consecutive days, then Licensee, upon thirty (30) days’ prior written notice to Licensor, may terminate this Agreement. (b) Condemnation. If the whole or any substantial part of the Tower Facility shall be taken by any public authority under the power of eminent domain or in deed or conveyance in lieu of condemnation so as to materially interfere with Licensee’s use thereof and benefits from the Licensed Space, then this Agreement shall terminate on the part so taken on the date of possession by such authority of that part, and Licensor or Licensee shall have the right to terminate this Agreement and any unearned Monthly License Fee paid in advance of such termination shall be refunded by Licensor to Licensee within thirty (30) days following such termination. Notwithstanding the foregoing, Licensor may elect to rebuild the Tower or other improvements affected by such condemnation at an alternate location or property owned, leased or managed by Licensor, in which case Licensee and Licensor shall remain bound hereby. Upon such relocation of the Tower or improvements, the Licensed Space shall be modified to include the new Tower or improvements and the property on which the same are located and this Agreement shall be amended accordingly to clarify the rights of Licensor and Licensee with respect to the Licensed Space. Licensee agrees not to make a claim to the condemning authority for any condemnation award to the extent such claim shall diminish or affect the award made to Licensor with regard to such condemnation. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 (c) License Fee Abatement. The Monthly License Fee with respect to the affected Tower Facility shall be abated during any period that the Tower has not been restored f ollowing an event described in Subsections (a) or (b) above so long as Licensee is unable to continue to operate from a temporary location at the Tower Facility during any period of restoration. 14. COMPLIANCE WITH LAWS. Licensor shall be responsible for compliance with any marking and lighting requirements of t he FAA and the FCC applicable to the Tower Facility, provided that if the requirement for compliance results from the presence of the Approved Equipment on the Tower, Licensee shall pay the costs and expenses therefor (including any lighting automated alarm system so required). Licensee has the responsibility of carrying out the terms of Licensee’s FCC license with respect to tower light observation and notification to the FAA if those requirements imposed on Licensee are in excess of those required of Lic ensor. Notwithstanding anything to the contrary in this Agreement, Licensee shall at all times comply with all Applicable Laws and ordinances and all rules and regulations of municipal, state and federal governmental authorities relating to the installation, maintenance, location, use, operation, and removal of the Approved Equipment and other alterations or improvements authorized pursuant to the provisions of this Agreement. 15. INDEMNIFICATION; INSURANCE. (a) Mutual Indemnity. Subject to the mutual waiver of subrogation set forth in Section 27, Licensee and Licensor each indemnifies the other against and holds the other harmless from any and all costs, demands, Damages, suits, expenses, or causes of action (including reasonable attorneys fees and court costs) which arise out of the use and/or occupancy of the Licensed Space by the Indemnifying Party. This indemnity does not apply to any Claims to the extent arising from the gross negligence or intentional misconduct of the Indemnified Party. (b) Limits on Indemnification. Neither Party shall be responsible or liable to any of the foregoing Indemnified Parties for any Damages arising from any claim to the extent attributable to any acts or omissions of other licensees or users occupying the Tower Facility or for any structural or power failures or destruction or damage to the Tower Facility except to the extent caused by the sole, joint, or concurrent gross negligence or willful misconduct of such Party. (c) Survival. The provisions of this Section 15 shall survive the expiration or earlier termination of this Agreement with respect to any events occurring on or before expiration or termination of same whether or not Claims relating thereto are asserted before or after such expiration or termination. (d) Insurance. Licensor and Licensee shall keep in full force and effect, during the Term of this Agreement, insurance coverage in accordance with Appendix II attached hereto. 16. LIMITATION OF PARTIES’ LIABILITY. NEITHER LICENSOR NOR LICENSEE SHALL BE RESPONSIBLE FOR, AND HEREBY WAIVES ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED RESULTING FROM (i) LICENSEE’S USE OR LICENSEE’S INABILITY TO USE THE TOWER FACILITY, OR (ii) DAMAGE TO THE OTHER’S EQUIPMENT. If Licensor shall fail to perform or observe any term, condition, covenant or obligation required to be performed or observed by it under this Agreement or is charged with an indemnity obligation hereunder, and if Licensee shall, as a consequence thereof, recover a money judgment against Licensor (whether compensatory or punitive in nature), Licensee agrees that it shall look solely to Licensor’s right, title and interest in and to the Tower Facility and the Tower for the collection of such judgment, and Licensee further agrees that no other assets of Licensor shall be subject to levy, execution or other process for the satisfaction of Licensee’s judgment, and that Licensor shall not be personally liable for any deficiency. 17. DISCLAIMER OF WARRANTY. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE TOWER FACILITY OR THE TOWER. LICENSEE HEREBY ACCEPTS THE TOWER FACILITY “AS IS, WHERE IS, WITH ALL FAULTS.” 18. NOTICES. All notices, demands, approvals, requests and other communications shall be in writing to such Party at the address listed in the introductory paragraph of this Agreement (and in each case, in the event of notice to Licensor, with a copy of such notice to American Towers LLC, 116 Huntington Avenue, Boston, MA 02116, Attention: General Counsel) or at such other address as such Party shall designate by notice to the other Party hereto in accordance with this Section 18 (the “Notice Address”) and may be personally delivered; mailed, via United States certified mail, return receipt requested; or transmitted by overnight courier for next Business Day delivery, and, if not delivered personally, shall be deemed to be duly given or made 2 Business Days after deposit with the applicable carrier or courier. Notices will be deemed to have been given upon either receipt or rejection. Notwithstanding the foregoing, (i) any notice that is given by a Party may be given by the attorneys for that Party and shall be deemed effective for all purposes herein, and (iii) only notices, letters, documents, or instruments threatening to declare or declaring such addressee or recipient in default under this Agreement shall be required to be sent to the attorneys representing such addressee or recipient, if the name and address of such attorney is provided for herein. 19. ASSIGNMENT; SUBLEASING. Licensee may not, directly or indirectly, assign this Agreement as a whole, or any portion of Licensee’s rights, title and interests hereunder without Licensor’s prior written consent. In no event may Licensee sublet, sublease, or permit any use of the Tower Facility or Licensed Space by any other party. Any permitted assignee shall expressly assume, and become bound by, all of Licensee’s obligations under this Agreement. Licensor may freely assign, transfer, or sublease this Agreement and, in such event, Licensor shall be relieved of all of its obligations under this Agreement from and after the da te of such assignment or transfer. Licensee shall pay Licensor a fee of $500.00 (which fee shall increase annually on each anniversary of the Commencement Date by a percentage rate increase equal to the Annual Escalator) in each instance in which Licensee requests Licensor to consent to an assignment of this Agreement or in which Licensee seeks an estoppel certificate, non-disturbance agreement, subordination agreement or other similar agreement to defray the administrative cost incurred by Licensor to process such requests, prepare and process any necessary documentation, and modify its database and other information systems to reflect any such agreement. Such fee is due upon submission of Licensor’s request and is hereby deemed fully earned by Licensor upon receipt. Notwithstanding anything to the contrary, Licensor may condition its consent to any assignment, on among other things, (i) requiring that the assignee execute a new form of license agreement so long as the Monthly License Fee and Initial and Renewal Terms of such agreement are consistent with those set forth in this Agreement, and (ii) requiring the assignee to demonstrate that it maintains at the time of such assignment, as evidenced by current financial statements provided to Licensor, a financial position reasonably demonstrating the ability of such assignee to m eet and perform the obligations of Licensee hereunder through the unexpired balance of the then current Initial Term or Renewal Term . Any purported assignment by Licensee in violation of the terms of this Agreement shall be void. This Agreement shall be binding upon the successors and permitted assigns of both Parties. 20. SUBORDINATION TO GROUND LEASE. The Parties acknowledge and agree that in the event Licensor’s rights in the Licensed Space and/or any part of the Tower Facility is derived in whole or part pursuant to an underlying lease, sublease, permit, easement or other right of use agreement (a “Ground Lease”), all terms, conditions and covenants contained in this Agreement shall be specifically subject to and subordinate t o the terms and conditions of the applicable Ground Lease. In the event that any of the provisions of the Ground Lease are in conflict with any of the provisions of this Agreement (other than those provisions relating to the length of term, termination rights or financial consideration), the terms of the Ground Lease shall control. Further, Licensee agrees to comply with the terms of such Ground Lease as applicable to the access and occupancy of the LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Licensed Space. Notwithstanding anything contained in this Agreement to the contrary, if the Ground Lease expires or is terminated for any reason, this Agreement shall terminate on the effective date of such termination and Licensor shall have no liability to Licensee as a result of the termination of this Agreement. Licensor is under no obligation to extend the term of or renew the Ground Lease. Licensor shall give Licensee written notice of such termination or expiration of this Agreement as a result of the termination or expiration of the Ground Lease as soon as practicable. Unless prohibited by the terms of such Ground Lease, upon Licensee’s written request, Licensor shall provide a copy of any applicable Ground Lease with the economic terms and other terms that Licensor deems reasonably confidential redacted. 21. DEFAULT. The occurrence of any of the following instances shall be considered to be a default or a breach of this Agreement by Licensee: (i) any failure of Licensee to pay the Monthly License Fee, or any other charge for which Licensee has the responsibility of payment under th is Agreement, within ten (10) Business Days of the date following written notice to Licensee from Licensor, or its designee, of such delinquency, it being understood, however, that Licensor is obligated to provide such notice only two times in each calenda r year, and the third instance of the failure to pay the Monthly License Fee or any other charge shall be an immediate default without notice to Licensee if not paid within ten (10) Business Days of the date when due; (ii) except for a PCN Default for which the cure period is set forth in clause (iv) below, any failure of Licensee to perform or observe any term, covenant, provision or condition of this Agreement which failure is not corrected or cured by Licensee within thirty (30) days of receipt by Licensee of written notice from Licensor, or its designee, of the existence of such a default; except such thirty (30) day cure period shall be extended as reasonably necessary to permit Licensee to complete a cure so long as Licensee commences the cure within such thirty (30) day cure period and thereafter continuously and diligently pursues and completes such cure; (iii) failure of Licensee to abide by the Interfere nce provisions as set forth in Section 11; (iv) a PCN Default occurs that Licensee fails to cure within ten (10) days of Licensor’s written notice to Licensee, or its designee of t he existence of such default; (v) Licensee shall become bankrupt, insolvent or file a voluntary petition in bankruptcy, have an involuntary petition in bankruptcy filed against Licensee which cannot be or is not dismissed by Licensee within sixty (60) days of the date of the filing of the involuntary petition, file for reorganization or arrange for the appointment of a receiver or trustee in bankruptcy or reorganization of all or a substantial portion of Licensee’s assets, or Licensee makes an assignment for such purposes for the benefit of creditors; (vi) this Agreement or Licensee’s interest herein or Licensee’s interest in the Tower Facility are executed upon or attache d; (vii) Licensee commits or fails to perform an act which results in a default under or nonconformance with the Ground Lease by Licensor and the same shall not be cured within 5 Business Days (or such shorter time as permitted under the Ground Lease to cure) of the date following written notice to Licensee from Licensor, or its designee, of such default; or (viii) the imposition of any lien on the Approved Equipment except as may be expressly authorized by this Agreement, or an attempt by Licensee or anyone claiming through Licensee to encumber Licensor’s interest in the Tower Facility, and the same shall not be dismissed or otherwise removed within ten (10) Business Days of written notice from Licensor to Licensee. 22. REMEDIES. In the event of a default or a breach of this Agreement by Licensee and after Licensee’s failure to cure the same within the time allowed Licensee to cure such default, if applicable, then Licensor may, in addition to all other rights or remedies Licensor may have hereunder at law or in equity, (i) terminate this Agreement by giving written notice to Licensee, stating the date upon which such termination shall be effective, accelerating and declaring to be immediately due and payable the then present value of all Monthly License Fees and other charges or fees which would have otherwise been due Licensor absent a breach of this Agreement by Licensee, discounted by an annual percentage rate equal to five percent (5%), (ii) terminate electrical power to the Approved Equipment, and/or (iii) remove the Approved Equipment without being deemed liable for trespass or conversion and store the same at Licensee’s sole cost and expense for a period of thirty (30) days after which the Approved Equipment, other than Hazardous Materials, will be deemed conclusively abandoned if not claimed by Licensee. Licensee shall pay all reasonable attorney’s fees, court costs, removal and storage fees (including any damage caused thereby), and other items of cost reasonably incurred by Licensor in recovering the Monthly License Fee or other fee or charge. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Licensee shall not be permitted to claim the Approved Equipment until Licensor has been reimbursed for removal and storage fees. Past due amounts under this Agreement will bear interes t from the date upon which the past due amount was due until the date paid at a rate equal to eighteen percent (18%) per annum, or at a lower rate if required by law in the state in which this Agreement is to be performed. In addition, Licensee shall be assessed a late payment fee equal to twenty-five percent (25%) of the then-current Monthly License Fee for any payment or reimbursement due to Licensor under this Agreement which is overdue by ten (10) days or more and such fee shall be assessed for each thirty (30) day period thereafter that any such amount (or portion thereof) remains unpaid. 23. GOVERNMENTAL APPROVALS; PERMITS. In the event that any governmental permit, approval or authorization required for Licensor’s use of, operation of, or right to license space to Licensee at the Tower Facility is terminated or withdrawn by any governmental authority or third party as part of any governmental, regulatory, or legal proceeding, Licensor may terminate this Agreement. Licensee hereby agrees that in the event of a governmental or legal order requiring the removal of the Approved Equipment from the Tower, the modification of the Tower, or the removal of the Tower, Licensee shall remove the Approved Equipment promptly, but in no event later than the date required by such order, at Licensee’s sole cost and expense. Licensor shall cooperate with Licensee in Licensee's efforts to obtain any permits or other approvals that may be necessary for Licensee’s installation and operation of the Approved Equipment, provided that Licensor shall not be required to expend any funds or undertake any liability or obligation in connection with such cooperation. Licensor may elect to obtain such required approvals or permits on Licensee’s behalf, at Licensee’s sole cost and expense. In no event may Licensee encourage, suggest, participate in or permit the imposition of any restrictions or additional obligations whatsoever on the Tower Facility or Licensor’s current or future use or ability to license space at the Tower Facility as part of or in exchange for obtaining any such approval or permit. In the event that Licensee’s shelter or cabinets are installed above a third-party or Licensor-owned shelter or building, Licensee shall be solely responsible for obtaining any required appr ovals, or permits in connection with such shelter or cabinet installation, excepting the consent of other users at the Tower Facility and/or the ground landlord which shall remain the sole responsibility of Licensor where required. 24. REPLACEMENT OF TOWER/RELOCATION OF APPROVED EQUIPMENT. (a) Replacement of Tower. Licensor may, at its election, replace or rebuild the Tower or a portion thereof. Such replacement will (i) be at Licensor’s sole cost and (ii) not result in an interruption of Licensee’s communications services beyond that which is necessary to replace the existing Tower. If Licensee, in Licensee’s reasonable discretion, cannot operate the Approved Equipment from the existing Tower during such replacement or rebuild of the Tower, Licensee may establish, at Licensee’s sole cost, a temporary facility on the Tower Facility to provide such services as Licensee deems necessary during any such construction by Licensor so long as adequate space is then available. The location of such temporary facilities shall be subject to Licensor’s approval. The Monthly License Fee due hereunder shall be abated for any period during which Licensee is prevented from broadcasting from the existing Tower due to such replacement or relocation. At the request of either Party, Licensor and Licensee shall enter into an amendment to this Agreement to clarify the rights of Licensor and Licensee to the new Tower Facility. (b) Relocation of Approved Equipment. In the event another Paying Carrier (as hereinafter defined) desires to occupy the space on the Tower (which includes any necessary vertical separation as determined by Licensor) where Licensee’s Approved Equipment is then located (the “Trigger Condition”), Licensor reserves the right to require Licensee to decide whether to (i) terminate this Agreement, (ii) relocate Licensee’s Approved Equipment located at the Tower Facility, at Licensee’s sole cost and expense, to another antenna mount height on the Tower, or (iii) increase the Monthly License Fee to that which would initially be paid by the Paying Carrier (“Paying Carrier Rate”), all in accordance with the terms and provisions provided in this Subsection 24(b). Upon the Trigger Condition occurring, Licensor may notify Licensee in writing (“Relocation Notice”) that the Trigger Condition has occurred and if other spaces or antenna mount heights are available to accommodate Licensee’s Approved Equipment on the Tower (without the requirement of any improvements to the Tower by Licensor), indicate which other spa ces or antenna mount heights are so available and, also, indicate the Paying Carrier Rate. Within ten (10) LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Business Days of Licensee’s receipt of the Relocation Notice, Licensee will be required to inform Licensor in writing of its election either to (A) increase the Monthly License Fee to the Paying Carrier Rate (which would thereafter be subject to escalation of the Monthly License Fee generally as otherwise provided in this Agreement) and continue to occupy the same space or antenna mount height on the Tower; (B) provided other spaces or antenna mount height are available on the Tower, relocate Licensee’s Approved Equipment to one of the other such spaces or antenna mount height as specified in the Relocation Notice; or (C) remove Licensee’s Approved Equipment from Tower and terminate this Agreement. If Licensee elects option (A), then such election shall be effective and the Monthly License Fee shall increa se effective upon the eleventh Business Day after Licensee’s receipt of the Relocation Notice without further act or deed. If Licensee elects option (B), if such option is available, and notifies Licensor that it elects to relocate its Approved Equipment to a particular antenna mount height or space specified in the Relocation Notice, Licensee shall have forty-five (45) days of Licensee’s receipt of the Relocation Notice to relocate its Approved Equipment on the Tower to such elected space or antenna mount height at Licensee’s sole cost and expense, such relocation to be subject to all of the terms and conditions of this Agreement otherwise imposed. If Licensee elects or is deemed to elect option (C), Licensee will remove its Approved Equipment from the Tower Facility within forty-five (45) days of Licensee’s receipt of the Relocation Notice, such removal to be subject to all terms and conditions of this Agreement otherwise imposed. If Licensor fails to receive notice from Licensee within such ten (10) Business Day period as to whether Licensee elects option (A), (B) or (C), then Licensee shall be deem ed conclusively to have elected option (C). If Licensee elects option (B) or elects or is deemed to elect option (C), if Licensee fails to relocate or remove the Approved Equipment within such time period as required above, TIME BEING OF THE ESSENCE, then the Approved Equipment shall be deemed conclusively and absolutely abandoned by Licensee and anyone claiming by, through, or under Licensee except for Hazardous Materials and waste and equipment containing Hazardous Materials and waste, which shall be rem oved by Licensee from the Tower Facility immediately; and Licensor shall have the right to remove the Approved Equipment at Licensee’s sole expense and dispose of such Approved Equipment in any manner Licensor so elects, and Licensee shall reimburse Licensor for its expenses upon demand without off-set. For purposes of this Subsection, a “Paying Carrier” is a paying carrier or potential licensee of Licensor which, through a written Application or offer, offers to monetarily compensate Licensor for the right to use the space on the Tower included in the Licensed Space. (c) Tower Removal: If during the term of this Agreement Licensor determines based on engineering structural standards generally applied to communications towers that the Tower is or has become structurally unsound such that pursuant to generally accepted industry safety standards the Tower or a portion thereof must be removed, then, upon ninety (90) days’ prior written notice to Licensee, Licensor may, in its sole discretion either (i) remove the T ower and terminate this Agreement effective as of the date of such removal, or (ii) modify the T ower and relocate Licensee’s Approved Equipment to an alternative location on the modified Tower. If Licensee and Licensor are not able to agree on an alternative location on the modified Tower for the installation of Licensee’s Approved Equipment within the foregoing ninety (90) day notice period, then Licensee or Licensor may elect to terminate this Agreement. 25. EM ISSIONS. If antenna power output (“RF Emissions”) is presently or hereafter becomes subject to any restrictions imposed by the FCC or other governmental agency for RF Emissions standards on Maximum Permissible Exposure (“MPE”) limits, or if the Tower Facility otherwise becomes subject to federal, state or local rules, regulations, restrictions or ordinances, Licensee shall comply with Licensor’s reasonable requests for modifications to the Approved Equipment which are reasonably necessary for Licensor to compl y with such limits, rules, regulations, restrictions or ordinances and Licensor shall use commercially reasonable efforts to cause all other licensees of the Tower Facility to promptly comply. If Licensor requires an engineering evaluation or other power density study be performed to evaluate RF Emissions compliance with MPE limits, then all reasonable costs of such an evaluation or study shall be paid proportionately by Licensee and all other licensees of the Tower within thirty (30) days of Licensor’s request therefor. If said study or a study sponsored by any governmental agency indicates that RF Emissions at the Tower Facility do not comply with MPE limits, then Licensee and Licensor, each for itself, shall immediately take any and all steps necessary to ensure that it is individually in compliance with such limits, up to and including cessation of operation, until a maintenance program or other mitigating measures can be implemented to comply with LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 MPE and in addition, Licensor shall use commercially reasonable efforts to cause all other licensees of the Tower to take similar steps necessary to ensure that they are individually in compliance with such limits. 26. ENVIRONMENTAL. Licensee covenants that it will not use, store, dispose, or release any Hazardous Substances on the Tower Facility in violation of Applicable Law. Licensee agrees to indemnify and save harmless Licensor against any and all Claims, liabilities, causes of action, Damages, orders, judgments, and clean -up costs arising from Licensee’s breach of any of the covenants contained in this Section 26. The obligations of Licensee to indemnify Licensor pursuant to this Section 26 shall survive the termination or expiration of this Agreement. 27. SUBROGATION. (a) Waiver. Licensor and Licensee waive all rights against each other and any of their respective consultants and contractors, agents and employees, for Damages caused by perils to the extent covered by the proceeds of the insurance provided herein, except such rights as they may have to the insurance proceeds. All insurance policies required under this Agreement shall contain a waiver of subrogation provision under the terms of which the insurance carrier of a Party waives all of such carrier’s rights to proceed against the other Party. Licensee’s insurance policies shall provide such waivers of subrogation by endorsement. Licensee shall require by appropri ate agreements, written where legally required for validity, similar waivers from its contractors and subcontractors. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. (b) Mutual Release. Notwithstanding anything in this Agreement to the contrary, Licensor and Licensee each release the other and its respective affiliates, employees and representatives from any Claims by them or any one claiming through or under them by way of subrogation or otherwise for Damage to any person or to the Tower Facility and to the fixtures, personal property, improvements and alterations in or on the Tower Facility that are caused by or result from risks insured against under any insurance policy carried by each and required by this Agreement, provided that such releases shall be effective only if and to the extent that the same do not diminish or adversely affect the coverage under such insurance policies and only to the extent of the proceeds received from such policy. 28. GOVERNING LAW. This Agreement shall be governed by the laws of the state in which the Tower Facility is located, with the exception of its choice of laws provisions. If any provision of this Agreement is found invalid or unenforceable under judicial decree or decision, the remaining provisions of this Agreement shall remain in full force and effect. Any approval, consent, decision, or election to be made or given by a Party may be made or given in such Party’s sole judgment and discretion, unless a different standard (such as reasonableness or good faith) is provided for explicitly. 29. MISCELLANEOUS. Upon Licensor’s written request, Licensee shall promptly furnish Licensor with complete and accurate information in response to any reasonable request by Licensor for information about any of the Approv ed Equipment or utilities utilized by Licensee at the Tower Facility or any of the channels and frequencies utilized by Licensee thereon. In the event that this Agreement is executed by Licensor, its Affiliates or any trade name utilized by Licensor or its Affiliates and such signatory does not hold the real Tower Facility or leasehold interest in the affected Tower Facility, the execution of this Agreement shall be deemed to have been properly executed by Licensor or Licensor’s Affiliate which properly holds such interest in the affected Tower Facility. Upon the termination or expiration of this Agreement, Licensee shall immediately upon the request of Licensor deliver a release of any instruments of record evidencing such Agreement. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Notwithstanding the expiration or earlier termination of this Agreement, Sections 15, 16, 17, and 26 shall survive the expiration or earlier termination of this Agreement. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision herein (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly agreed to in writing by the affected Party. This Agreement constitutes the entire agreement of the Parties hereto concerning the subject matter herein and shall supersede all prior offers, negotiations and agreements, whether written or oral. No revision of this Agreement shall be valid unless made in writing and signed by authorized representatives of both Parties. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute but one instrument. The Parties agree that a scanned or electronically reproduced copy or image of this Agreement shall be deemed an original and may be introduced or submitted in any action or proceeding as a competent evidence of the execution, terms and existence of this Agreement notwithstanding the failure or inability to produce or tender an original, executed c ounterpart of this Agreement and without the requirement that the unavailability of such original, executed counterpart of this first be proven. 30. CONFIDENTIALITY. Neither Party shall use the other’s name, service mark or trademark in any public announcement or advertisement without the prior written consent of the other Party, which may be withheld in such Party’s sole and absolute discretion. The submission of this Agreement for examination and negotiation does not constitute an offer to license, or a reservation of, or option for, any portion of the Tower Facility, and Licensee shall have no right to use or occupy any portion of the Tower Facility or any appurtenant easement area hereunder until the execution and delivery of this Agreement by both Licensor and Licensee. ATTACHED EXHIBITS: Exhibit A: List of Approved Equipment and location of the Licensed Space Exhibit B: Site Drawings indicating the location of Ground Space for Licensee’s equipment shelter or space in Licensor’s building (as applicable) Exhibit C: As-Built Drawings or Construction Drawings to be attached within forty-five (45) days after the Commencement Date in accordance with Section 3 Appendix I: Definitions Appendix II: Insurance LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Exhibit A List of Approved Equipment and location of the Licensed Space LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Exhibit B Site Drawing indicating the location of Ground Space for Licensee’s equipment shelter or space in Licensor’s building (as applicable) Licensee shall not commence installation until Licensor has approved in writing said drawing and attached it hereto. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Exhibit C As Built Drawings or Construction Drawings To be attached hereto within forty-five (45) days after the Commencement Date. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Appendix I Defined Terms Affiliate(s): Any corporation, partnership, limited liability company or other entity that (i) is controlled directly or indirectly (through one or more subsidiaries) by Licensee, (ii) is the successor or surviving entity by a merger or consolidation of Licensee pursuant to Applicable Law, or (iii) purchases all or substantially all of the assets of Licensee. For purposes of this definition, “control” means the possession of the right through the ownership of fifty percent (50%) or more of the shares with voting rights to effectively direct the business decisions of the subject entity. Agreement: defined in the introductory paragraph. Annual Escalator: defined in Section IV. Applicable Law: All applicable statutes, ordinances, laws, regulations and directives of any federal, state or local governmental unit, authority or agency having jurisdiction over a Licensed Space or affecting the rights and obligations of Licensor or Licensee under this Agreement, including without limitation, the Communications Act of 1934, as amended from time to time, FCC Rules and Regulations, and the rules, regulations and written policies and decisions of the FAA. Application: defined in Section IV. Application Fee: defined in Section IV. Approved Equipment: the communications system, including antennas, radio equipment, cabling and conduits, shelter and/or cabinets and other personal property owned or operated by Licensee at the Licensed Space, as defined in Exhibit A or B to this Agreement. BLM: defined in Subsection 5(d). Business Day: a day other than a Saturday, Sunday or legal holiday for commercial banks under the laws of the United States or the state in which the Tower Facility is located. Claims: demands, claims, suits, actions, proceedings or investigations brought against a Party by an unrelated or unaffiliated person or entity. Commencement Date: defined in Section IV. Common Expenses: defined in Section 7. Connection Fee: defined in Section IV. Construction Drawings: defined in Section 3. Damages: debts, liabilities, obligations, losses, damages, excluding consequential or punitive damages, costs and expenses, interest (including, without limitation, prejudgment interest), penalties, reasonable legal fees, court costs, disbursements and costs of investigations, deficiencies, levies, duties and imposts. Easement: defined in Section 2. Effective Date: defined in the introductory paragraph. FAA: the United States Federal Aviation Administration or any successor federal agency established for the same or similar purpose. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 FCC: the United States Federal Communications Commission or any successor federal agency established for the same or similar purpose. FCC Rules and Regulations: All of the rules, regulations, public guidance, written policies and decisions governing telecommunications generally and wireless telecommunications specifically as promulgated and administered by the FCC, which on the Effective Date includes, but is not limited to, those administered by the Wireless Telecommunications Bureau of the FCC and more specifically referenced as the Code of Federal Regulations, title 47, parts 0 through 101, as amended. Final Rule: defined in Subsection 11(g). Ground Lease: defined in Section 20. Ground Space: The portion of the Tower Facility licensed for use by Licensee to locate a portion of the Approved Equipment thereon, in the square footage amount depicted on Exhibit B of this Agreement. In no event shall the Ground Space include the air space or rights above the Approved Equipment located in the Ground Space. Hazardous Substances: Any hazardous material or substance which is or becomes defined as a hazardous substance, pollutant or contaminant subject to reporting, investigation or remediation pursuant to Applicable Law; any substance which is or becomes regulated by any federal, state or local governmental authority; and any oil, petroleum products and their by-products. Holdover Fee: defined in Subsection 6(c). Indemnified Party: any person or entity entitled to indemnification under Section 15 hereof. Indemnifying Party: any person or entity obligated to provide indemnification under Section 15 hereof. Initial Term: defined in Section IV and referenced in Subsection 6(c). Interference: defined in Subsection 11(a)(i). Labeling Fee: defined in Section 9. Licensed Frequencies: defined in Subsection 11(a)(ii). Licensed Space: Location of the Approved Equipment on the Tower and at the Ground Space as more specifically described in Exhibits A and B attached hereto. Licensed User: defined in Subsection 11(a)(iii). Licensee: defined in the introductory paragraph. Licensor: defined in the introductory paragraph. Monthly License Fee: defined in Section IV and referenced in Subsection 5(a). MPE: defined in Section 25. Notice Address: defined in Section 18. NTP (Notice to Proceed): Written notice from Licensor to Licensee acknowledging that all required documentation for the construction and installation of the Approved Equipment has been received and LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 approved by Licensor and Licensee is author ized to commence its installation of the Approved Equipment at the Licensed Space, as more particularly set forth in Subsection 10(a) of this Agreement. Paying Carrier: defined in Subsection 24(b). Paying Carrier Rate: defined in Subsection 24(b). Party(ies): Licensor or Licensee. PCN Default: defined in Subsection VI.A. PCN Retention Fee: defined in Subsection VI.A. PCNs: defined in Subsection VI.A. Permitted Frequencies: defined in Section III. Priority User: defined in Subsection 11(a)(iv). Relocation Application Fee: defined in Section IV. Relocation Notice: defined in Subsection 24(b). Remittance Address: defined in Section II. Renewal Term(s): defined in Section IV and referenced in Subsection 6(b). RF Emissions: defined in Section 25. Site Inspection Fee: defined in Section IV. SSIS: defined in Subsection 10(b). SSIS Fee: defined in Subsection 10(b). Structural Analysis Fee: defined in Subsection 10(b). Subsequent User: defined in Subsection 11(a)(v). Term: Initial Term and each Renewal Term which is effected pursuant to Section 6 of this Agreement. Tower: A communications or broadcast tower owned and operated by Licensor and located at the Tower Facility. Tower Facility: Certain real property owned, leased, subleased, licensed or managed by Licensor shown on page 1 of this Agreement, on which a Tower owned, leased, licensed or managed by Licensor is located. Trigger Condition: defined in Section 24(b). Unlicensed Frequencies: defined in Subsection 11(a)(vi). Unlicensed User: defined in Subsection 11(a)(vii). Utility Change Event: defined in Subsection 5(b). LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Utility Fee: defined in Section IV. USFS: defined in Section 5(d). Work: all work relating to the construction, installation, relocation and reconfiguration of Licensee’s Approved Equipment on the Tower Facility, including without limitation, construction management, construction of an equipment pad, installation or modification of lines, antennas, shelters and equipment cabinets. LICENSOR SITE NAME / NUMBER: West Bremerton / 83092 LICENSEE SITE NAME / NUMBER: Meter Monitor ATC 83092 / MM001 Appendix II Insurance A. Licensor shall maintain in full force during the Term of this Agreement the following insurance: 1. Worker’s Compensation Insurance with statutory limits in accordance with all applicable state, federal and maritime laws, and Employers’ Liability Insurance with minimum limits of $500,000.00 per accident/occurrence, or in accordance with all applicable state, federal and maritime laws. 2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of liability of which shall not be less than $1,000,000.00 per occurrence. 3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00). The above insurance shall provide that Licensee will receive not less than thirty (30) days written notice prior to any cancellation of, or material change in coverage. The insurance specified in this Item A shall contain a waiver of subrogation against Licensee and shall name Licensee as an additional insured, and shall be primary over any insurance coverage in favor of Licensee but only with respect to and to the extent of the insured liabilities assumed by Licensor under this Agreement and shall contain a standard cross- liability endorsement. B. Licensee shall maintain in full force during the Term of this Agreement and shall cause all contractors or subcontractors performing Work on any Licensed Space prior to the commencement of any such Work on behalf of Licensee to maintain the following insurance: 1. Worker’s Compensation Insurance with statutory limits in accordance with all applicable state, federal and maritime laws, and Employers’ Liability Insurance with minimum limits of $500,000.00 per accident/occurrence, or in accordance with all applicable state, federal and maritime laws. 2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of liability of which shall not be less than $1,000,000.00 per occurrence. 3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00). The above insurance shall provide that Licensor will receive not less than thirty (30) days written notice prior to any cancellation of, or material change in coverage. The insurance specified in this Item B shall contain a waiver of subrogation against Licensor and shall name Licensor as additional insured, and shall be primary over any insurance coverage in favor of Licensor but only with respect to and to the extent of the insured liabilities assumed by Licensee under this Agreement and shall contain a standard cross -liability endorsement. C. Notwithstanding the foregoing insurance requirements, (a) the insolvency, bankruptcy, or failure of any insurance company carrying insurance for either Party, or failure of any such insurance company to pay Claims accruing, shall not be held to waive any of the provisions of this Agreement or relieve either Party from any obligations under this Agreement, and (b) Licensor reserves the right, from time to time, to increase the required liability limits described above in Items A and/or B in accordance with then -current customary insurance requirements in the tower industry nationally. XXXXXXXXXXXXCopyright © 2018 ATC IP LLC, All Rights Reserved.ATC PROJECT NO.: DRAWN BY: DATE DRAWN: CUSTOMER: SHEET NUMBER:AUDITED BY THESE DRAWINGS AND/OR THE ACCOMPANYING SPECIFICATION AS INSTRUMENTS OF SERVICE, ARE THE EXCLUSIVE PROPERTY OF LESSOR/SITE OWNER AND THEIR USE AND PUBLICATION SHALL BE RESTRICTED TO THE ORIGINAL SITE FOR WHICH THEY ARE PREPARED. REUSE, REPRODUCTION OR PUBLICATION BY ANY METHOD, IN WHOLE OR IN PART, IS PROHIBITED EXCEPT BY WRITTEN PERMISSION FROM LESSOR/SITE OWNER. TITLE TO THESE PLANS AND/OR SPECIFICATIONS SHALL REMAIN WITH LESSOR/SITE OWNER WITHOUT PREJUDICE AND VISUAL CONTACT WITH THEM SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF ACCEPTANCE OF THESE RESTRICTIONS. ALL MEASUREMENTS AND LOCATIONS USED IN THIS SITE DESIGN ARE APPROXIMATE AND LESSOR/SITE OWNER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO UNDERGROUND FEATURES, INCLUDING BUT NOT LIMITED TO UTILITIES, ROCK FORMATIONS, ETC. THIS SITE DESIGN SHALL NOT BE USED FOR CONSTRUCTION PURPOSES AND LESSEE SHOULD CONTACT AND UTILIZE A UTILITY LOCATOR SERVICE PRIOR TO COMMENCING CONSTRUCTION TO AVOID SERVICE DISRUPTION TO OTHER USERS AND INJURY OR DEATH ON LEGEND GROUNDING TEST WELL AV, A/V AIR VENT ATS AUTOMATIC TRANSFER SWITCH B BOLLARD C CABINET CS COAX SHROUD CSC CELL SITE CABINET D DISCONNECT E ELECTRICAL F FIBER GEN GENERATOR G GENERATOR RECEPTACLE HH, V HAND HOLE, VAULT HFC HYDROGEN FUEL CELL HSM HYDROGEN STORAGE MATERIAL IB ICE BRIDGE K KENTROX BOX LC LIGHTING CONTROL LPG LIQUID PROPANE GAS M METER OHW OVERHEAD WIRE P POWER PB PULL BOX PP POWER POLE T TELCO TRN TRANSFORMER BUFFER GROUND SPACE (LEASE AREA) EASEMENT 83092 WEST BREMERTON WASHINGTON H. DEGROOT 09/17/2018 CITY OF BREMERTON WA OAA739487 SITE-1 ATC SITE NUMBER: ATC SITE NAME: SITE PLAN LAYOUT PROPOSAL A.T. ENGINEERING SERVICE, PLLC 3500 REGENCY PARKWAY SUITE 100 CARY, NC 27518 PHONE: (919) 466-0112 GRAPHIC SCALE ( IN FEET ) 1 UNIT = 10 FEET 105010 PROPOSED 3' X 3' GROUND SPACE CITY OF BREMERTON WA 4'-0"3'-0" Notice to Proceed Process www.americantower.com CO1563 – 110414 © 2014 ATC IP LLC. All rights reserved. American Tower desires to maintain worksite conditions satisfactory to all employees and vendors at the site. To make this possible, we require all tenants to follow the Notice to Proceed (NTP) process. Following this process ensures that all installation contingencies have been met prior to commencing installation, minimizing the possibility of disruption. Please note: › All site maintenance (e.g., decommissions, cabinet swaps, etc.) requires a Maintenance NTP. Send the name of your Contractor, start date and scope of work to your Account Project Manager to request a Maintenance NTP. If emergency maintenance is required, reach out to the ATC NOC directly at (877)-51-TOWER or 877-518-697. › Verify that the NTP process has been completed and an NTP letter has been received from American Tower prior to performing any work on the site. NTP documents should be uploaded via ON AIR Access. For information on uploading NTP documents, please refer to Online NTP Deliverable Submission. If you have any questions, please contact your APM. Include the Customer Name, American Tower Site Name, State and Site Number in the subject line of the email. Once all the required documents are collected (along with any regulatory information, if required) and your contract is executed, we can issue a Notice to Proceed on the site. If this information is not properly submitted, it could cause a delay in the receipt of your NTP letter. For details on the collocation process with American Tower, please refer to 8 Steps to Get On Air Fast. For up-to-date information on your collocation projects, use ON AIR Access, our online portal. It provides access to project documents, milestones and contact information. Register or login at www.onairaccess.com To complete the NTP process, the following documents must be submitted to American Tower: ›Proposed Construction Drawings showing the size and location of all improvements or modifications to the site. The Service Delivery Installation team and a Field Operations Technician will approve the drawings and communicate any changes that may be required. The customer must contact the Field Operations Technician to schedule a preconstruction walk prior to any construction. ›Copy of Building Permit (if applicable) or an alternate verification of compliance from the local jurisdiction stating that a Building Permit is not required. Letters, emails, faxes or downloadable templates may be used. For more information, please refer to Exceptions to Building Permit Requirements for Notice to Proceed. ›Purchase Orders for all outstanding fees sent to po@americantower.com ›Construction Schedule ›Any other regulatory (FAA/FCC) requirements, which will be provided to you on our checklist throughout the approval process. ›General Contractor’s Name. Please note that your contractor must be an American Tower approved vendor. In addition, if the contractor utilizes any subcontractor, that subcontractor must also be an American Tower approved vendor. Please make sure your contractor completes an on-site preconstruction walk with the Field Operations Technician prior to installation. To learn how your contractors can become American Tower approved vendors, please send an email inquiry to vendor.compliance@americantower.com AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Consent Agreement to Sublease Site at Alexander Lake South between American Tower and Google LLC COUNCIL MEETING Date: December 18, 2019 Department: Public Works Presenter: Melinda Monroe Phone: 360-473-5306 SUMMARY: The City of Bremerton has a long-term land lease agreement with American Tower for the land commonly known as site 310495 Alexander Lake South. Section 10.D of this agreement includes a rent sharing of 50% for the City of Bremerton on any sublease agreements that American Tower enters. American Tower would like to sublease space on their Tower to Google LLC for the amount of $1100 monthly with a 3% annual increase for an initial term of 5 years with three, 5-year renewal periods. As this arrangement is beneficial to all parties, the City would like to consent to this agreement. ATTACHMENTS: 1) Consent Agreement; 2) Sublease between American Tower and Google LLC; 3) Original American Tower lease number 4612 FISCAL IMPACTS (Include Budgeted Amount): Sublease split with American Tower results in annual revenue of an additional $6,600 with a 20-year Gross Rent Potential of $135,831. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the consent agreement for the communication site on parcel 292401-2-002-2008 with American Tower authorizing the sublease of Tower space to Google LLC; and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A14 10 Presidential Way • Woburn, MA 01801 • 781.926.4500 Office • 781.926.4545 Fax • www.americantower.com September 24, 2019 City of Bremerton Wash 345 6th Street Suite 100 Bremerton, WA 98337 REQUEST FOR CONSENT TO SUBLEASE* SITE NUMBER SITE NAME PROJECT NUM. CUSTOMER** 310495 Bremerton- City 3 OAA749036 GOOGLE LLC SITE ADDRESS GROUND AGREEMENT BREMERTON, Washington 98312-3202 4780 W. Belfair Valley Rd. Telecommunications Facilities Lease Agreement dated October 13, 2006 * the transaction contemplated may be a sublease, sub-sublease, license, or other form of conveyance whereby GOOGLE LLC is entering into an agreement to use this site. ** any reference to GOOGLE LLC includes one or more of its related entities. Dear Landlord: We are writing to request your consent to a proposed sublease to GOOGLE LLC at this site. Since GOOGLE LLC will be a new customer at the site, we are required to get your written consent to this sublease per the ground agreement. As wireless coverage demands continue to change, providers routinely expand their networks by placing equipment on new towers. Below are a few answers to frequently asked questions we receive from landlords on this type of project: • All work will take place within the existing compound and on the existing tower. • The overall appearance of the tower will remain similar. • The addition of GOOGLE LLC’s equipment at a different height than existing carrier(s)’ equipment will not change the overall height of the tower. • The obligations and responsibilities of American Tower under the ground agreement are still in full force and effect. • You may receive revenue share pursuant to the ground lease as a result of this sublease. If you could please consent to this sublease by signing this letter below and returning it to my attention, either by mail or email, I would appreciate it. American Tower values our relationship with you so if there are any questions please do not hesitate to contact me directly. Thank you for your time. Sincerely, George Hamel Project Manager - Land Management American Tower Corporation 10 Presidential Way Woburn, MA 01801 (781) 428-7290 george.hamel@americantower.com Page 2 of 2 CONSENT I consent to the proposed sublease* to GOOGLE LLC at the site referenced above. Signature: _____________________________ Print Name: ____________________________ Title: _________________________________ Date: _________________________________ REQUEST FOR CONSENT TO SUBLEASE Bremerton- City 3 / 310495 ATC Project OAA749036 GOOGLE LLC collocation LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 1 LICENSE AGREEMENT ATC Contract No: ________________ This LICENSE AGREEMENT (“Agreement”) is entered into as of the latter signature date hereof (“Effective Date”) by and between American Tower Asset Sub, LLC, a Delaware limited liability company, a subsidiary of SpectraSite Communications, LLC, a Delaware limited liability company, with a place of business at 10 Presidential Way, Woburn, MA 01801 (“Licensor”) and Google LLC, a Delaware limited liability company with a place of business at 1600 Amphitheatre Parkway, Mountain View, CA 94043 (“Licensee”) pursuant to that certain letter agreement dated July 26, 2019 by and between American Towers LLC, a Delaware limited liability company, on behalf of itself, its affiliates, and its subsidiaries, SpectraSite Communications, LLC, a Delaware limited liability company, on behalf of itself, its affiliates, and its subsidiaries, and Licensee (the “Letter Agreement”). I. TOWER FACILITY INFORMATION: Site Name: Bremerton- City 3 Site Number:310495 Address and/or location of Tower Facility: 4780 W. Belfair Valley Road, Bremerton, WA 98312-3202 Tower Facility Coordinates: Lat. 47.54772 Long. -122.7051 II. NOTICE & EMERGENCY CONTACTS: ● Licensee’s local emergency contact (name and number): Michael Blankenship (650) 279-2494. ● Licensor’s local emergency contact: Network Operations Communications Center (800) 830 -3365. ● Notices to Licensee shall be sent to legal-notices@google.com. ● Notices to Licensor shall be sent to Licensor’s address above to the attention of Contracts Manager. ● Licensor’s Remittance Address: SpectraSite Communications, LLC, 29641 Network Place, Chicago, IL 60673-1296 Attn: Property Management; all payments shall include a reference to the Site Name and Site Number as identified above in Section I. III. PERMITTED USE OF TOWER FACILITY BY LICENSEE: Transmitting and Receiving frequencies: See Exhibit A for specific frequencies. Antenna mount height on tower: See Exhibit A for specific location. All other permitted uses of the Tower Facility including Licensee’s Approved Equipment, and the Licensed Space are further described in Section 4 of this Agreement and Exhibits A and B attached hereto. IV. FEES & TERM: Monthly License Fee: One Thousand One Hundred and 00/100 Dollars ($1,100.00), increased by the Annual Escalator on the first anniversary of the Commencement Date of this Agreement and each anniversary of the Commencement Date thereafter during the Term (as defined in Appendix I). Annual Escalator: Three percent (3.0%). Application Fee: NA Relocation Application Fee: NA Site Inspection Fee: NA Initial Term: A period of five (5) years beginning on the Commencement Date. The “Commencement Date” shall be the earlier of: (i) the date of Licensor’s issuance of a NTP or (ii) December 2, 2019. Renewal Terms: 3 additional periods of 5 years each. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 2 Connection Fee (as described in Subsection 5(b)): NA Electricity for operation of Approved Equipment is to be provided by (check one): ☐ Licensor, with the cost of such electricity to be paid by Licensee at the initial rate of $______ per month (“Utility Fee”) subject to adjustment pursuant to Subsection 5(b), OR ☒ Licensee, at its sole expense. V. TERMS & CONDITIONS: The attached terms and conditions are incorporated herein by this reference. VI. OTHER PROVISIONS: Other provisions: (check one): ☐ None ☒ As listed below A. PCN/PCN Retention Fee/Cross-Default. If applicable, Licensee, an Affiliate of Licensee or any entity or individual acting on behalf Licensee or an Affiliate of Licensee shall only issue Prior Coordination Notices (“PCNs”) for the Permitted Frequencies set forth in Exhibit A and shall not issue PCNs for any other frequencies at this Tower Facility or at any other tower facility owned and/or operated by Licensor unless Licensee has submitted an Application for use of the subject frequencies to Licensor for which a partially executed License Agreement shall be signed by Licensee and returned to Licensor within sixty (60) days of the submittal of the Application. Licensee shall withdraw PCNs filed for any frequencies which are not licensed to Licensee by Licensor, no more than ten (10) days from the date of Licensee’s withdrawal of an Application or Licensor’s election to not process a Licensee-submitted Application. Failure to comply with the terms of this Subsection A shall constitute an event of default pursuant to Section 21 hereof (a “PCN Default”) for which the cure period is set forth in Section 21. B. Notwithstanding anything to the contrary in this Agreement, CommScope Technologies LLC (“CommScope”) shall have the same right to access the Licensed Space and Tower Facility, including any temporary facilities, as Licensee may have subject to the same terms and conditions of this Agreement provided that Google will remain responsible for CommScope’s compliance with the terms of this Agreement. C. Notwithstanding anything to the contrary in this Agreement, the offer expressed to Licensee in this Agreement shall automatically become null and void with no further obligation by either Party hereto if a structural analysis of the Tower Facility completed after the execution of this Agreement by Lice nsor but before the commencement of the installation of Licensee’s Approved Equipment indicates that the Tower Facility is not suitable for Licensee’s Approved Equipment unless Licensor and Licensee mutually agree that structural modifications or repairs shall be made to the Tower Facility on mutually agreeable terms. D. In no event shall Licensee's use of the Tower Facility, or operation of any of its equipment thereon, be conducted in a manner that interferes with Licensor's lighting system located on any of the towers, building systems, or, in the event that Licensee’s equipment is installed on the rooftop of a building, with equipment of any kind used by building tenants who are not tenants of Licensor. In the event that such interference does occur, Licensee shall be solely responsible to reimburse Licensor for any and all costs required to modify and/or upgrade Licensor’s lighting system, to comply with all necessary FAA/FCC regulations, as a result of said interference. E. Notwithstanding anything to the contrary contained herein, Licensee shall pay to Licensor a one-time non-refundable fee in the amount of Three Thousand Five Hundred and 00/100 Dollars ($3,500.00) (the “Collocation Fee”) payable concurrent with the submission of the Application. Notwithstanding the foregoing, any equipment design modification that, by its nature, requires additional structural analysis and is initiated by Licensee that occurs prior to the initial installation of Licensee’s LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 3 Approved Equipment or any subsequent modification thereto, shall result in an additional structural analysis fee of One Thousand Five Hundred and No/100 Dollars ($1,500.00), per each design change. F. Licensor and Licensee agree and acknowledge that this Agreement is contingent upon the ground lessor’s consent. G. The Parties agree that (i) a digital or electronic signature on this Agreement and/or (ii) a fully executed scanned or electronically reproduced copy or image of this Agreement shall be deemed an original and may be introduced or submitted in any action or proceeding as competent evidence of the execution, terms and existence hereof notwithstanding the failure or inability to produce or tender an original, manually executed counterpart of this Agreement and without the requirement that the unavailability of such original, manually executed counterpart of this Agreement first be proven. [Signatures appear on next page] LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 4 IN WITNESS WHEREOF, each Party in consideration of the mutual covenants contained herein, and for other good and valuable consideration, intending to be legally bound, has caused this Agreement to be executed by its duly authorized representative as of the day and year written below; provided, however, that this Agreement shall not become effective as to either Party until executed by both Parties. LICENSOR LICENSEE American Tower Asset Sub, LLC, a Google LLC, a Delaware limited liability company Delaware limited liability company By: ______________________________ By ______________________________ Print Name: ________________________ Print Name: ________________________ Its: ______________________________ Its: ______________________________ Date: ______________________________ Date: ______________________________ LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 5 TERMS AND CONDITIONS 1. DEFINITIONS. Capitalized terms defined in the body of this Agreement are indexed by location in Appendix I attached hereto. Capitalized terms used in Agreement but not defined herein are defined in Appendix I. 2. GRANT OF LICENSE. Subject to the terms of this Agreement, Licensor hereby grants Licensee a non-exclusive license to install, maintain and operate the Approved Equipment at the Licensed Space and to occupy space on the Tower to the extent required for its related transmission lines, provided, however , that Licensee shall have the exclusive right to occupy the point of attachment where Licensee’s Approved Equipment attaches to the Tower. Licensee acknowledges that other tenants on the Tower may occupy space above Licensee’s Approved Equipment which may require another tenant’s transmission lines to traverse through Licensee’s Licensed Space. Subject to the terms and conditions of this Agreement and provided that Licensee is not otherwise in default hereunder beyond any applicable cure period provided for in Section 21, Licensee shall have the right provided herein to operate its Approved Equipment without hindrance or interruption from Licensor. All Approved Equipment shall be and remain Licensee’s personal property throughout the Term of this Agreement. Subject to Section 13 to this Agreement, Licensor shall maintain the Tower Facility in good order and repair, provided that wear and tear that does not materially and adversely interfere with Licensee’s use and benefit of the Licensed Space is exc epted. In no event shall Licensee’s license as granted herein include rights to use the air space above the Approved Equipment, and Licensor reserves the right to install, construct and/or operate additional improvements or equipment of Licensor or others above Licensee’s Approved Equipment, including Licensee’s shelter (commonly referred to as “stacking”), provided that such additional improvements or equipment do not materially and adversely interfere with the access to or operation of the Approved Equipment, including Licensee’s shelter. Licensee is not required to utilize a stackable shelter, provided that, if Licensee opts to install a shelter that is not stackable and if Licensor receives an offer to license the air space above Licensee’s non -stackable shelter by a proposed subsequent user, Licensor may, at its election, upon thirty (30) days’ prior written notice require Licensee to replace such non-stackable shelter with a stackable shelter of a comparable size, provided that the proposed subsequent user agrees in writing to be wholly responsible for the cost of Licensee’s shelter replacement. Subject to any limitations contained in the Ground Lease, Licensor grants Licensee a right of access to the Tower Facility 24 hours per day, 7 days per week during the Term. Licensor grants Licensee a designated location for the installation of Licensee’s utilities over, under or across the Tower Facility (collectively, “Easement”). Licensor shall provide Licensee with one set of keys and/or codes to access the Tower Facility. Licensee shall be responsible for ensuring that Licensor has, at all times, a complete and accurate written list of all employees and agents of Licensee who have been provided the keys or access codes to the Tower Facility. Licensor shall have the right to continue to occupy the Tower Facility and to grant rights to others to the Tower Facility in its sole discretion. Licensee shall have no property rights or interest in the Tower Facility or the Easement by virtue of this Agreement. If Li censor’s right to license space on the Tower Facility to Licensee is subject to a right of first refusal for the benefit of a third party and if such third party exercises its right of first refusal prior to the Commencement Date, Licensor may terminate this Agreement upon written notice to Licensee. 3. EXHIBITS. Within one hundred twenty (120) days following the Commencement Date, Licensee shall provide Licensor with as-built or construction drawings showing the Approved Equipment as installed in both ha rd copy and electronic form (“Construction Drawings”); such Construction Drawings shall include the location of any shelters, cabinets, grounding rings, cables, and utility lines associated with Licensee’s use of the Tower Facility. Upon receipt, Licensor shall attach the Construction Drawings as Exhibit C hereto. In the event that Licensee fails to deliver the Construction Drawings as required by this Section, and such failure continues for no fewer than 10 days following Licensor’s providing written notice to Licensee, Licensor may cause such Construction Drawings to be prepared on behalf of Licensee and Licensor shall assess a fee for such Construction Drawings in an amount equal to one hundred twenty percent (120%) of the actual LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 6 cost of obtaining the Construction Drawings including in-house labor, which upon invoicing shall become immediately due and payable by Licensee. In the event of inconsistency or discrepancy between (a) Exhibit A and Exhibit B hereto, Exhibit A shall govern, and (b) between Exhibit A (with respect to Approved Equipment and antenna locations) together with Exhibit B (with respect to Ground Space installation locations) and Exhibit C hereto, Exhibits A and B shall govern, notwithstanding any approval or signature by Licensor or its agents. Licensee hereby acknowledges and agrees that installation of the Approved Equipment must be in strict accordance with the approved Construction Drawings and Exhibits A and B. Notwithstanding the forgoing, Licensee shall not infer nor shall acceptance of the Construction Drawings by Licensor be deemed to be a representation by Licensor that (i) such Construction Drawings or the plans and specifications described therein are in compliance with federal, state or local laws, ordinances, rules or regulations, (ii) that such installation shall not cause impermissible or unlawful interference, or (iii) that such installation is consistent with Licensee’s permitted installation as specifically set forth in Exhibits A and B hereto. 4. USE. Subject to the terms of any Ground Lease, Licensee shall be permitted the non -exclusive right to install, maintain, operate, service, modify and/or replace its Approved Equipment at the Licensed Sp ace, which Approved Equipment shall be utilized for the transmission and/or reception of wireless voice and/or data communications signals (such transmission and/or reception to be solely within the Permitted Frequencies, and, if the Permitted Frequencies include licensed spectrum, within the spectrum licensed to Licensee by the FCC). Licensee’s permitted use with respect to the Licensed Space shall be limited solely to that enumerated in this Section, and, except pursuant to a separate agreement with Lice nsor (including the Letter Agreement), no person or entity other than Licensee shall have the right to install, maintain or operate its equipment or transmit or receive communications at, or otherwise use, the Licensed Space. 5. LICENSE FEES; TAXES; ASSESSM ENTS. (a) Monthly License Fee. The Monthly License Fee as adjusted by the Annual Escalator, shall be payable in advance on the first day of each calendar month during the Term beginning upon the Commencement Date. If the Commencement Date is not the first d ay of a calendar month, the Monthly License Fee for any partial month shall be prorated on a daily basis. (b) Utilities. All utility services installed on the Tower Facility for the use or benefit of Licensee shall be made at the sole cost and expense of Licensee and shall be separately metered from Licensor’s utilities. Licensee shall be solely responsible for extending utilities to the Tower Facility as necessary for the operation of the Approved Equipment and for the payment of utility charges including connection charges and security deposits incurred by Licensee. Licensee shall obtain and pay the cost of telephone connections, the installation of which shall be in compliance with the procedures for installation and maintenance of Approved Equipment set forth herein. (c) Taxes. (i) Property Taxes. Licensee shall be responsible for the reporting and payment when due of any tax directly related to Licensee’s ownership or operation of the Approved Equipment and such reporting and payment shall be made directly to the appropriate tax authorities. Licensee shall reimburse Licensor in full for any taxes assessed against Licensor but attributed solely to the Approved Equipment within sixty (60) days of Licensor’s request for such reimbursement. Licensor shall pay all property taxes directly assessed against Licensor’s property or for which Licensor is obligated to pay under the Ground Lease, provided, however, Licensee shall reimburse Licensee’s pro rata share of such taxes. Licensee’s pro rata share shall be determined by dividing such taxes evenly among all users Licensor has permitted to utilize any portion of the Tower Facility. Licensee shall reimburse Licensor for such taxes within sixty (60) days of Licensor’s request for such reimbursement. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 7 (ii) Sales; Use and Other Taxes. Licensor shall be responsible for billing, collecting, reporting, and remitting sales, use and other taxes directly related to any Monthly License Fee or other payments received pursuant to this Agreement (but in no way shall include taxes attributed to Licensor’s income or profits). Licensee shall be responsible for reimbursing Licensor for all such sales, use and other taxes billed related to any payments received pursuant to this Agreement. Licensor shall add to the Monthly License Fe e or any other payment then due and payable any associated sales, use or other tax, which shall be paid by Licensee at the same time and in the same manner as the Monthly License Fee or other payment due and payable under this Agreement. (d) Federal Use Fees & Assessments. In the event that a particular Licensed Space is at a Tower Facility located on property which is owned by the Bureau of Land Management (“BLM”) or the United States Forest Service (“USFS”), Licensee shall reimburse Licensor for any and all fees or assessments attributable to this Agreement or Licensee’s use of the Licensed Space paid by Licensor to the BLM or USFS related to such Tower Facility within sixty (60) days of Licensor’s request for such reimbursement. (e) Restrictions on Reimbursement. Solely for the purposes of determining Licensee’s portion of such taxes, fees, assessments or similar expenses as contemplated in this Section 5 or anywhere else in this Agreement, if any such amounts are determined in whole or in part on the inc ome or profits (aside from gross revenues) of any person or entity, Licensor and Licensee shall agree on a fixed amount (subject to the Annual Escalator, which shall be applied in the same manner as it is applied to the Monthly License Fee), that shall be treated as such tax, fee, assessment or similar expense in lieu of the actual amount, which agreed to amount shall be set forth in an amendment to this Agreement. (f) Payment Address. All payments due under this Agreement shall be made to Licensor at Licensor’s Remittance Address shown on page 1 of this Agreement or such other address as Licensor may notify Licensee of in writing. (g) No Set-Off. All payments due under this Agreement shall be due without set-off, notice, counterclaim or demand from Licensor to Licensee. (h) Effect of Partial Payment. No endorsement or statement on any check or letter accompanying a check for payment of any monies due and payable under the terms of this Agreement shall be deemed an accord and satisfaction, and Licensor may accept such check or payment without prejudice to its right to recover the balance of such monies or to pursue any other remedy provided by law or in this Agreement. 6. TERM. (a) Initial Term. The Initial Term of this Agreement shall be as specified on page 1. (b) Renewal Term. The Term of this Agreement may be extended for each of the Renewal Terms as specified on page 1 of this Agreement, provided that at the time of each such renewal, (i) the Ground Lease remains in effect and has not expired or been term inated, (ii) Licensee is not in default hereunder and no condition exists which if left uncured would with the passage of time or the giving of notice result in a default by Licensee hereunder and (iii) the original Licensee identified on page 1 of this Agreement has not assigned, sublicensed, subleased or otherwise transferred any of its rights hereunder except in accordance with Section 19 herein. Provided that the foregoing conditions are satisfied, this Agreement shall automatically renew for each successive Renewal Term unless either Party notifies the other in writing of its intention not to renew this Agreement at least one hundred eighty (180) days prior to the end of the then existing Term. (c) Holdover Term. If Licensee fails to remove the Approved Equipment at the expiration of the Term, such failure shall be deemed to extend the Term of this Agreement on a month-to-month basis LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 8 under the same terms and conditions herein except that (i) a monthly license fee shall be due on or before the first day of every calendar month during such month-to-month term in an amount equal to one hundred fifty percent (150%) of the Monthly License Fee in effect for the last month of the Term prior to the commencement of such month-to-month term (“Holdover Fee”), such Holdover Fee to escalate annually on the anniversary of the Commencement Date by an amount equal to six percent (6%) of the Holdover Fee in effect for the month immediately prior to the month in which such escalation takes place, and (ii) the month-to-month extension shall be terminable upon fifteen (15) days’ prior written notice from either Licensor or Licensee to the other; provided, however, nothing contained herein shall grant Licensee the unilateral right to extend the Term of this Agreement af ter the expiration of the Term. 7. COMMON EXPENSES. Licensee shall reimburse Licensor for Licensee’s pro-rata share of all documented common expenses incurred by Licensor in the installation, operation, maintenance and repair of the Tower Facility, incl uding, but not limited to, the construction, maintenance and repair of a common septic system and field, lawn maintenance, snow removal, insurance, common utilities, and any and all other documented costs of operating and maintaining the Tower Facility but excluding any lease payment Licensor has under its Ground Lease (the “Common Expenses”). Licensor shall not allocate any Common Expenses to Licensee that are not also allocated to other customers of the particular Tower or Tower Facility, as applicable. Notwithstanding the foregoing, the cost and expenses associated with any damage which is directly attributable to the acts or omissions of Licensee or Licensee’s contractors shall be borne solely by Licensee; provided that Licensor will first provide a reasonable period for Licensee to correct any such damage, except in the event of emergency situations, in which Licensor may cure without providing prior notice to Licensee and Licensee will be responsible to reimburse Licensor upon Licensor’s provision to L icensee of documented expenses directly related to curing such emergency situation that were incurred and paid by Licensor. Licensee shall not be required to pay any share of costs or expenses incurred to replace the Tower. In the event that Licensee also licenses space within a building or shelter owned by Licensor on the Tower Facility, Licensee shall also reimburse Licensor for its pro -rata share of all Common Expenses incurred for the operation, maintenance, repair and replacement associated with such building or shelter, including, without limitation, the physical structure of the building, HVAC system, and common utility expenses. In the event that Licensee is connected to a generator or back -up power supply owned by Licensor, Licensee shall also reimburse Licensor for its pro-rata share of all expenses incurred for the operation, maintenance, repair and replacement associated with such generator, including, without limitation, fuel expenses. For the purposes of this Section, a “pro-rata share” of costs and expenses shall be determined based on the number of licensees using the Tower Facility (or with respect to a shared shelter or building, the number of licensees using Licensor’s shelter or building) on the first day of the month in which an invoice is mailed to Licensee. Licensee shall reimburse Licensor for Common Expenses within sixty (60) days following receipt of an invoice from Licensor. 8. SITE INSPECTION. Concurrent with Licensee’s delivery of a fully executed Agreement to Licensor, and before the date of any subsequent modifications to or installation of additional Approved Equipment, Licensee shall pay Licensor the Site Inspection Fee as defined on page 1 of this Agreement. Licensee acknowledges that any site inspection performed by Licensor of Licensee’s installation is for the sole purpose and benefit of Licensor and its affiliates, and Licensee shall not infer from or rely on any inspection by Licensor as assuring Licensee’s installation complies with any Applicable Laws, that the installation was performed in a good, workmanlike manner or that such installation will not cause impermissible or unlawful interference. 9. LABELING. Licensee shall identify its Approved Equipment, including its equipment cabinets and coaxial cable (at the top and bottom of the Tower) (unless such cabinet is located in a building or cabinet owned by Licensee) by labels with Licensee’s name, contact phone number and date of installation consistent with industry practice. In the event that Licensee fails to comply with this provision and fails to cure such material deficiency within fifteen (15) days of Licensor’s written notice of such failure, Licensor may, but is not LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 9 obligated to, in addition to any other rights it may have hereunder, label the Approved Equ ipment and assess against Licensee a fee of $1,500 (“Labeling Fee”) which shall be payable to Licensor upon receipt of an invoice therefor. Licensor shall not be responsible to Licensee for any expenses or damages incurred by Licensee arising from the interruption of Licensee’s service caused by Licensor if Licensor is reasonably unable to identify the Approved Equipment as belonging to Licensee as a result of Licensee’s material failure to label such Approved Equipment. 10. IMPROVEMENTS BY LICENSEE. (a) Installation and Approved Vendors. Prior to the commencement of any Work on the Tower Facility, Licensee shall submit to Licensor for review and approval, which approval shall not be unreasonably withheld, detailed plans and specifications accurately describing all aspects of the proposed Work. Licensee shall provide notice to Licensor no less than 5 days prior to the date upon which Licensee intends to commence Work at the Tower Facility, together with a construction schedule, so Licensor has the opportunity to be present during any such Work. Licensee shall not commence Work on the Tower Facility until Licensor issues to Licensee a NTP. Licensor shall issue a NTP only upon request from Licensee and receipt of the following complete and accurate documentation: (1) evidence that any contingencies set forth in the approval of Licensee’s Application have been satisfied; (2) evidence that Licensee has obtained all required governmental approvals including, but not limited to, zoning approvals, building permits, and any applicable environmental approvals including copies of the same; (3) a copy of the plans and specifications that have been approved by Licensor for the proposed equipment installation; (4) evidence that any party, other than Licensor but including Lice nsee, that will be performing the Work are on Licensor’s approved vendor list, with valid and current worker's compensation and general liability insurance certificates on file with Licensor naming Licensor as an additional insured and which otherwise satisfy the insurance coverage requirements set forth in Subsection 15(d) of this Agreement; and (5) a construction schedule. In no event will a NTP be issued prior to the payment by Licensee of a Relocation Application Fee when required pursuant to Subsection 10(c) of this Agreement. Notwithstanding anything to the contrary in this Agreement, Licensor reserves the right, but on a nondiscriminatory basis as to all licensees, in its reasonable discretion, to refuse to permit any person or company to climb the Tower. (b) Structural Analysis/Interference Analysis. Prior to the commencement of any Work on the Tower Facility by or for the benefit of Licensee, Licensor may, in its reasonable discretion, perform or cause to be performed a structural analysis or require a professional engineer’s certified letter to determine the availability of capacity at the Tower Facility for the installation or modification of any Approved Equipment and/or additional equipment at the Licensed Space by Licensee. Licensee agrees to rem it payment to Licensor for all reasonable costs and expenses incurred by Licensor for such structural analysis or professional engineer’s certified letter (“Structural Analysis Fee”) within thirty (30) days following receipt of an invoice from Licensor. The foregoing charge shall be at Licensor’s prevailing rates for the performance of same or the amount Licensor’s vendor is then charging Licensor, as applicable. In the event a structural analysis is performed after the execution of this Agreement but prior to the initial installation of the Approved Equipment, and such analysis indicates that the existing Tower cannot accommodate the proposed installation of Licensee’s Approved Equipment thereon, Licensor shall notify Licensee that modification of the Tower is required and inform Licensee of the fee Licensor will charge Licensee to complete such modification (which fee shall be a reasonable estimate of Licensor’s actual cost of making such modifications). Such modification shall become part of the Tower Fac ility and be Licensor’s sole property. If Licensee elects not to pay such fee, and Licensee and Licensor do not otherwise reach an agreement regarding the costs of such modification, Licensee may terminate this Agreement upon written notice to Licensor. Prior to the commencement of any initial or subsequent construction or installation on the Tower Facility by or for the benefit of Licensee and/or the modification of Licensee’s Permitted Frequencies propagated from the Licensed Space, Licensor may elect to perform a shared site interference study (“SSIS”) and Licensee shall pay Licensor a fee of $1,600.00 per study (“SSIS Fee”), as adjusted annually on the anniversary of the Commencement Date by a percentage rate equal to the Annual Escalator. This fee shall be payable at the time Licensee pays the Relocation Application Fee where required pursuant to Subsection 10(c) of this Agreement, or immediately upon receipt of notice from Licensor that Licensor has determined that a SSIS is required. In the event a SSIS is performed after the execution of this Agreement by Licensor but prior to the installation of Licensee’s Approved Equipment, and such SSIS indicates that LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 10 the proposed installation of Licensee’s Approved Equipment on the Tower is acceptable, such an indication in no way relieves Licensee of its obligations under Section 11 herein. Licensee shall have no obligation to pay for more than one SSIS per each initial or subsequent construction or installation on the Tower Facility by or for the benefit of Licensee, or each modification of Licensee’s receive only Permitted Frequencies propagated from the Licensed Space. (c) Equipment; Relocation, Modification, Removal. Licensor hereby grants Licensee reasonable access to the Licensed Space and those portions of the Tower Facility reasonably necessary to access the Licensed Space for the purpose of installing, operating, and maintaining the Approved Equipment and its appurtenances. Except as otherwise provided, Licensee shall be responsible for all site Work to be done on the Licensed Space or the Easement pursuant to this Agreement. Licensee shall provide all materials and shall pay for all labor for the construction, installation, operation, maintenance and repair of the Approved Equipment. Licensee shall not construct, install or operate any equipment or improvements on the Tower Facility other than those which are described on Exhibit A, alter the Permitted Frequencies, or alter the operation of the Approved Equipment. Licensee shall submit an Application, utilizing Licensor’s then current form, to request the right to replace or modify its Approved Equipment, alter the Permitted Frequencies or increase the Ground Space, which Application shall be accompanied by a Relocation Application Fee. Licensor shall evaluate for approval the feasibility of Licensee’s request, which approval shall be in Licensor’s sole discretion. Licensee acknowledges that any such relocation or modification of the Approved Equipment may result in an increase in the Monthly License Fee. An amendment to this Agreement shall be prepared to reflect each addition or modification to Licensee’s Approved Equipment to which Licensor has given its written consent and the resulting increase in the Monthly License Fee, if any. Notwithstanding the foregoing, Licensee may swap out equipment for like equipment (“Like for Like Swap”) with no increase in the License Fee. ”Like for Like Swap” shall be defined as an equipment replacement in which: (i) there is no increase in quantity of equipment; (ii) Licensee does not operate at additional and/or modified frequencies other than the permitted frequency licensed pursuant to this Agreement; (iii) the functionality of the like equipment is the same as the functionality of the Approved Equipment; (iv) Licensee’s licensed ground space dimensions do not change; (v) the dimensions and weight of the equipment remain the same or are less than the equipment being removed; (vi) Licensee’s proposed modification does not cause structural integrity issues impacting t he Tower; (vii) Licensee submits an application prior to the Like for Like Swap; and (viii) Licensor and Licensee memorialize the modification in an amendment. Licensee shall have the right to remove all Approved Equipment at Licensee’s sole expense on or before the expiration or earlier termination of the License provided Licensee repairs any damage to the Tower Facility or the Tower caused by such removal. Within thirty (30) days of the expiration or termination of this Agreement for any reason, Licensee shall: (i) remove the Approved Equipment and any other property of Licensee at the Tower Facility at Licensee’s sole risk, cost, and expense; (ii) deliver the Licensed Space in substantially the same and in as good a condition as received (ordinary wear and tear excepted); and (iii) repair any damage to the Tower Facility caused by the removal of the Approved Equipment within ten (10) days of the occurrence of such damage. If Licensee fails to timely pay the Holdover Fee or does not remove its Approved Equ ipment within thirty (30) days after the expiration or termination of this Agreement, (i) the Approved Equipment shall be deemed conclusively and absolutely abandoned by Licensee and anyone claiming by, through, or under Licensee except for Hazardous Materials and waste and Approved Equipment containing Hazardous Materials and waste; and (ii) Licensor shall have the right to remove the Approved Equipment at Licensee’s sole expense and dispose of such Approved Equipment in any manner Licensor so elects, and Licensee shall reimburse Licensor for its expenses upon demand without off-set. 11. RF INTERFERENCE/ USER PRIORITY. (a) Definitions. For purposes of this Section 11, the following capitalized terms shall have the meanings set forth herein: (i) Interference includes any performance degradation, misinterpretation, or loss of information to a radio communications system caused by unwanted energy emissions, radiations, or inductions, but shall not include permissible interference as defined by the FCC, and in addition, with regard to Unlicensed Frequencies, congestion. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 11 (ii) Licensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are licensed by the FCC in the geographic area where the Tower Facility is located. (iii) A Licensed User is any user of the Tower Facility, including Licensee, which transmits and/or receives Licensed Frequencies at the Tower Facility, but only with respect to such Licensed Frequencies. (iv) A Priority User is any Licensed User of the Tower Facility that h olds a priority position in relationship to Licensee for protection from Interference, as determined in this Section 11, which status is subject to change as set forth herein. (v) A Subsequent User is any user of the Tower Facility that holds a subordinate position in relationship to Licensee for protection from Interference, as determined in this Section 11, which status is subject to change as set forth herein. (vi) Unlicensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are not licensed by the FCC and are available for use by the general public in the geographic area where the Tower Facility is located. (vii) An Unlicensed User is any user of the Tower Facility, including Licensee, which transmits and/or receives Unlicensed Frequencies at the Tower Facility, but only with respect to such Unlicensed Frequencies. (b) Information. Licensee shall cooperate with Licensor and with other lessees, licensees or occupants of the Tower Facility for purposes of avoiding Interference and/or investigating claims of Interference. Upon request, Licensee, within ten (10) days of Licensor’s request, shall provide Licensor with a list of Licensee’s transmit and receive frequencies and Approved Equ ipment specifications necessary to resolve or investigate claims of Interference. (c) Unlicensed Frequencies. Notwithstanding any other provision contained herein, as among Licensor, Licensee and other users of the Tower or Tower Facility, (i) an Unlicensed User shall have no priority with respect to any other FCC Unlicensed Users with respect to Interference; and (ii) an Unlicensed User’s rights and obligations with respect to such Interference shall be determined and governed by FCC Rules and Regulations and any other Applicable Law. Licensor expressly disclaims any and all warranties and accepts no responsibility for management, mediation, mitigation or resolution of Interference among FCC Unlicensed Users operating at the Tower Facility and shall have no liability therefor. (d) Licensed Frequencies. Subject to FCC Rules and Regulations and other Applicable Law, the Parties acknowledge and agree that the accepted industry standard for priority protection from Interference between multiple Licensed Users has been based on the priority of occupancy of each user to another user of the Tower or Tower Facility, which priority has been based on the order of submittal of its collocation Application by each user of the Tower or Tower Facility. Should the applicati on of FCC Rules and Regulations and other Applicable Law not resolve any claims of Interference consistent with Subsections 11(e), 11(f) and 11(g) below, as among Licensor, Licensee and other users of the Tower Facility, (i) each Licensed User’s priority shall be maintained so long as the Licensed User does not change the equipment and/or frequency that it is entitled to use at the Tower Facility at the time of its initial occupancy; and (ii) Licensee acknowledges and agrees that if Licensee replaces its Ap proved Equipment or alters the radio frequency of the Approved Equipment to a frequency range other than as described on page 1 of this Agreement, Licensee will lose its priority position for protection from Interference with regard to Approved Equipment operating at the new frequency in its relationship to other Licensed Users which are in place as of the date Licensee replaces its Approved Equipment or alters its radio frequency, consistent with this Section 11. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 12 (e) Correction. (i) Licensee. Licensee agrees not to cause Interference with the operations of any other user of the Tower or Tower Facility and to comply with all other terms and provisions of this Section 11 imposed upon Licensee. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that Licensee’s Approved Equipment is causing Interference to the installations of Licensor or a Priority User, Licensee shall, within 48 hours of notification from Licensor, take such actions as are necessary to mitigate or eliminate the Interference, with the exception of ceasing Licensee's operations. If Licensee cannot mitigate or eliminate such Interference within the 48 hour period, Licensor may file a complaint with the FCC (currently the FCC’s Enforcement Bure au, Spectrum Enforcement Division) or if such other user of the Tower Facility which is subject to Interference from Licensee’s Approved Equipment is a Priority User, then upon the request of such Priority User consistent with Licensor’s contractual obliga tions owed to the Priority User, Licensor may require that Licensee turn off or power down its interfering Approved Equipment and only power up or use such Approved Equipment during off -peak hours specified by Licensor in order to test whether such Interfe rence continues or has been satisfactorily eliminated. If Licensee is unable to resolve or eliminate, to the satisfaction of Licensor, such Interference within thirty (30) days from Licensee’s initial notification thereof, Licensee will immediately remove or cease operations of the interfering Approved Equipment. (ii) Licensor. Licensor will use commercially reasonable efforts to include substantially similar requirements as outlined in Section 11(e)(i) above in subsequent license agreements entered into by Licensor with new tenants for the use of this Tower Facility. Upon the request of Licensee, Licensor hereby covenants to take commercially reasonable efforts to prohibit a Subsequent User from causing Interference with the operations of Licensee to the extent Licensee is a Priority User pursuant this Section 11. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that a Subsequent User’s equipment is causing Interference to the installations of Licensee, upon Licensee’s request, Licensor shall, within 48 hours of request, commence such actions as are necessary to mitigate or eliminate the Interference, with the exception of ceasing Subsequent User’s operations. (iii) Government Users. Notwithstanding the foregoing, if another user of the Tower or Tower Facility is a governmental entity, Licensor shall give such governmental entity written notice of the Interference within 5 Business Days of Licensor’s determination that such action is reasonably necessary. Licensor shall have the right to give the governmental entity 5 Business Days, or more as specified in the governmental site or occupancy agreement or as required by Applicable Law, from the receipt of such notice prior to Licensor being required to take any actions required by this Subsection 11(e) to cure such Interference. (f) FCC Requirements Regarding Interference. Nothing herein shall prejudice, limit or impair Licensee’s rights under Applicable Law, including, but not limited to, FCC Rules and Re gulations to redress any Interference independently of the terms of this Section 11. Notwithstanding anything herein to the contrary, the provisions set forth in this Section 11 shall be interpreted in a manner so as not to be inconsistent with Applicable Law, including, but not limited to, FCC Rules and Regulations and nothing herein relieves Licensee from complying with all Applicable Laws governing the propagation of radio frequencies and/or radio frequency interference. The Parties acknowledge that currently FCC Rules and Regulations govern the obligations of wireless telecommunication service providers with respect to the operation of equipment and use of frequencies. Consequently, the provisions set forth in this Section 11 are expressly subject to CFR, Title 47, including but not limited to Part 15, governing Radio Frequency Devices; Part 20, governing commercial mobile radio services; Part 24, governing personal communications services; Part 90, governing private land mobile radio services; and Par t 96, governing citizens band radio service. In addition, in accordance with good engineering practice and standard industry LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 13 protocols, licensees employ a wide range of techniques and practices, including those involving the use of proper types of equipment as well those related to the adjustment of operating parameters, in a mutually cooperative effort to identify and mitigate sources of Interference. The obligation of Part 20 licensees, including, but not limited to, private paging, specialized mobile r adio services, cellular radiotelephone service and personal communications services, to avoid Interference is set forth in 47 CFR Part 90, Subpart N – Operating Requirements, §90.403(e). Claims of Interference are ultimately cognizable before the FCC’s Enforcement Bureau, Spectrum Enforcement Division. Licensee shall observe good engineering practice and standard industry protocols, applying such commercially reasonable techniques as constitute best practices among licensees, in the deployment of their fr equencies and the operation of the Approved Equipment. If Licensee deploys its frequencies or operates the Approved Equipment in a manner which prevents any other user of the Tower or Tower Facility from decoding signal imbedded in their licensed frequencies such that the Spectrum Enforcement Division makes a determination that Licensee is the cause of the Interference and Licensee fails or refuses to mitigate or eliminate the Interference within the time and in the manner prescribed by the Spectrum Enforc ement Division, Licensee shall be default of this Agreement and the remedies set forth in Section 22 shall apply. (g) Public Safety Interference. As of the Commencement Date, Licensor and Licensee are aware of the publication of FCC Final Rule, Private Land Mobile Services; 800 MHz Public Safety Interference Proceeding, Federal Register: November 22, 2004 (Volume 69, Number 224), Rules and Regulations, Page 67823-67853 (“Final Rule”). Claims of Interference made by or against users which are public safety entities shall be in compliance with the Final Rule as and when effective, or otherwise in accordance with FCC Rules and Regulations. (h) AM Detuning. The parties acknowledge that the FCC Rules and Regulations govern the obligations of Licensee with respect to the operation of the Approved Equipment. Consequently, the provisions set forth in this Agreement are expressly subject to the FCC Rules and Regulations, including, but not limited to 47 C.F.R. §§ 27.63, 22.371 and 73.1692. Licensee agrees, at Licen see’s sole cost, to comply with the foregoing as well as any and all other FCC Rules, Regulations and public guidance relating to AM detuning as such provisions currently exist or are hereafter modified. Licensee shall be fully responsible for any pre and/or post installation testing for AM interference at the Tower Facility and for the installation of any new detuning apparatus or the adjustment of any existing detuning apparatus that may be necessary to prevent adverse effects on the radiation pattern of any AM station caused by the installation of the Approved Equipment. Licensee shall provide Licensor with written proof of such compliance. In the event that Licensee determines that pre or post-installation testing for AM interference is not required at the Tower Facility, such a determination shall be at Licensee’s sole risk. If Licensee or Licensor receives a complaint of interference from an AM broadcast station after the Approved Equipment is added to a Tower or a Tower is modified to accommodate Licensee, Licensee shall eliminate such interference within thirty (30) calendar days of the receipt of such complaint. Licensee’s failure to eliminate such interference within such thirty (30) day period shall constitute a default under this Agreement and Licensor shall have the right to eliminate such interference at Licensee’s expense. Licensee further agrees to indemnify Licensor in the event that Licensee’s failure to comply with the FCC Rules and Regulations prior to installation/modification of the Approved Equipment results in any administrative investigation, proceeding or adjudication with respect to Licensor. 12. SITE RULES AND REGULATIONS. Licensee agrees to comply with the reasonable rules and regulations established from time to time at the Tower Facility by Licensor, which may be modified by Licensor from time to time upon receipt by Licensee of such revised rules and regulations. Such rules and regulations will not unreasonably interfere with Licensee’s use of the Licensed Space under this Agreem ent. 13. DESTRUCTION; CONDEMNATION. (a) Destruction. If the Tower or other portions of the improvements at the Tower Facility owned by Licensor are destroyed or so damaged as to materially interfere with Licensee’s use and benefits from the Licensed Space, Licensor or Licensee shall be entitled to elect to cancel and terminate this LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 14 Agreement on the date of such casualty and any unearned Monthly License Fee paid in advance of such date shall be refunded by Licensor to Licensee within thirty (30) days of such te rmination date. Notwithstanding the foregoing, Licensor may elect, in its sole discretion, to restore the damaged improvements, in which case Licensee and Licensor shall remain bound to the terms of this Agreement but Licensee shall be entitled to an abatement of the Monthly License Fee during the loss of use of the Licensed Space. If the Tower is so damaged that reconstruction or repair cannot reasonably be undertaken without removing the Approved Equipment, then (i) Licensor may, upon giving no less than ten (10) days’ prior written notice to Licensee and a reasonable opportunity for Licensee to remove the Approved Equipment, remove any of the Approved Equipment and interrupt the signal activity of Licensee, (ii) Licensee may, at Licensee’s sole cost and expense, install temporary facilities pending such reconstruction or repair, provided such temporary facilities do not interfere with the construction, rebuilding or operation of the Tower, (iii) Licensor agrees to provide Licensee alternative space, if a vailable, on the Tower or at the Tower Facility during such reconstruction/repair period and (iv) should Licensor not substantially restore or replace the Tower in a fashion sufficient to allow Licensee to resume operations thereon within 6 months of the date of casualty, provided that such 6 month period shall be automatically extended for so long as Licensor has commenced and diligently continues to restore or replace such Tower, and Licensee’s operation has been materially disrupted for thirty (30) or more consecutive days, then Licensee, upon thirty (30) days’ prior written notice to Licensor, may terminate this Agreement. (b) Condemnation. If the whole or any substantial part of the Tower Facility shall be taken by any public authority under the power of eminent domain or in deed or conveyance in lieu of condemnation so as to materially interfere with Licensee’s use thereof and benefits from the Licensed Space, then this Agreement shall terminate on the part so taken on the date of possession by such au thority of that part, and Licensor or Licensee shall have the right to terminate this Agreement and any unearned Monthly License Fee paid in advance of such termination shall be refunded by Licensor to Licensee within thirty (30) days following such termination. Notwithstanding the foregoing, Licensor may elect to rebuild the Tower or other improvements affected by such condemnation at an alternate location or property owned, leased or managed by Licensor, and shall promptly provide written notice to Licen see of Licensor’s intent to rebuild the Tower, in which case Licensee and Licensor shall remain bound hereby; provided, however, that if such alternative location would materially and adversely affect Licensee’s use of the Approved Equipment for its intended purpose and Licensee shall have notified Licensor of the impossibility for Licensee to operate the Approved Equipment at the proposed replacement site within fifteen (15) days of receipt of said notice provided by Licensor, then Licensee shall have the right to terminate this Agreement by written notice to Licensor and any unearned Monthly License Fee paid in advance of such termination shall be refunded by Licensor to Licensee within sixty (60) days following such termination. Upon such relocation of the Tower or improvements, the Licensed Space shall be modified to include the new Tower or improvements and the property on which the same are located and this Agreement shall be amended accordingly to clarify the rights of Licensor and Licensee with respe ct to the Licensed Space. Licensee agrees not to make a claim to the condemning authority for any condemnation award to the extent such claim shall diminish or affect the award made to Licensor with regard to such condemnation. (c) License Fee Abatement. The Monthly License Fee with respect to the affected Tower Facility shall be abated during any period that the Tower has not been restored following an event described in Subsections (a) or (b) above so long as Licensee is unable to continue to operate from a temporary location at the Tower Facility during any period of restoration. 14. COMPLIANCE WITH LAWS. Licensor shall be responsible for compliance with any marking and lighting requirements of the FAA and the FCC applicable to the Tower Facility, provided that if the requirement for compliance results from the presence of the Approved Equipment on the Tower, Licensee shall pay the costs and expenses therefor (including any lighting automated alarm system so required). Licensee has the responsibility of carrying out the terms of Licensee’s FCC license with respect to tower light observation and notification to the FAA if those requirements imposed on Licensee are in excess of those required of Licensor. Notwithstanding anything to the contrary in this Agreement, Licensee shall at all times comply with all Applicable Laws and ordinances and all rules and regulations of municipal, state and federal governmental authorities relating LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 15 to the installation, maintenance, location, use, operation, and removal of the Approved Equipment and other alterations or improvements authorized pursuant to the provisions of this Agreement. 15. INDEMNIFICATION; INSURANCE. (a) Mutual Indemnity. Subject to the mutual waiver of subrogation set forth in Section 27, Licensor and Licensee each agrees to indemnify, defend and hold harmless (collectively, “Indemnify,” or “Indemnification”) the other Party, the other Party’s subsidiaries and affiliated companies, and the other Party’s, and its subsidiaries’ and affiliated companies’, respective present and former officers, directors, employees, shareholders, partners, members, managers, representatives, agents, predecessors, successors, and assigns from and against any and all Damages , resulting from third-party claims or causes of action, and final awards, judgments, fines, forfeitures, penalties, losses, costs, and expenses (including, without limitation, actual attorneys’ fees reasonably incurred, and court costs) (collectively, “Claims”) to the extent such Claims arise out of: (i) injury to persons (including death) or damage to property and/or equipment resulting from the acts or omissions of the Indemnifying Party; (ii) breach of the Agreement by the Indemnifying Party; (iii) negligence of the Indemnifying Party; (iv) the failure of the Indemnifying Party to obtain or maintain any governmental permit, license, approval, or authorizati on required under this Agreement to be obtained or maintained by the Indemnifying Party, and/or (v) the Indemnifying Party’s failure to comply with any applicable laws, rules , or regulations to which it is subject. This forgoing Indemnification obligations do not apply to any Claims to the extent arising from the negligence or intentional misconduct of the Indemnified Party. (b) Limits on Indemnification. Notwithstanding the foregoing Indemnification obligations, neither Party shall be responsible or liable to any of the foregoing Indemnified Parties for any Claims to the extent attributable to any acts or omissions of other licensees or users occupying the Tower Site or for any structural or power failures or destruction or damage to the Tower Site, except to the extent caused by the gross negligence or willful misconduct of such Party. (c) Notice. A Party seeking Indemnification from the other Party under this Agreement must notify the other Party of the pertinent Claims promptly after the Party seeking such Indemnification has knowledge of such Claims. A failure to promptly provide such notice will not relieve the Indemnifying Party of its Indemnification obligations under this Agreement, except to the extent that the Indemnifying Party’s ability to defend such Claims is actually prejudiced by such failure. The Indemnified Party may participate at its cost and expense with counsel of its choice and appear in an equal capacity as the Indemnifying Party in the defense of any Claims defended under this Agreement by the Indemnifying Party. (d) Settlement. The Indemnifying Party will not settle any Claims (“Claims Settlement”) without the Indemnified Party’s prior written consent if such Claims Settlement imposes any: (A) equitable remedy against the Indemnified Party; (B) financial obligation for which the Indemnified Party is not Indemnified under this Agreement; or (C) liability or obligation upon the Indemnified Party, including any admission of wrongdoing by the Indemnified Party, that could be re asonably expected to have an adverse effect upon the Indemnified Party. The Indemnifying Party will include in any Claims Settlement a release of the Indemnified Party from all liability with respect to the underlying Claims. (e) Survival. The provisions of this Section 15 shall survive the expiration or earlier termination of this Agreement with respect to any events occurring on or before expiration or termination of same whether or not Claims relating thereto are asserted before or after such expiration or termination. (f) Insurance. Licensor and Licensee shall keep in full force and effect, during the Term of this Agreement, insurance coverage in accordance with Appendix II attached hereto 16. LIMITATION OF PARTIES’ LIABILITY. NEITHER LICENSOR NOR LICENSEE SHALL BE RESPONSIBLE FOR, AND HEREBY WAIVES ANY CLAIM UNDER THIS AGREEMENT FOR LOST PROFITS, INCIDENTAL, PUNITIVE, OR LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 16 CONSEQUENTIAL DAMAGES EXCEPT AS PROVIDED IN THIS SECTION 16. EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO TWO MILLION DOLLARS ($2,000,000). NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM EITHER PARTY’S NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS, (ii) FRAUD OR FRAUDULENT MISREPRESENTATION, (iii) BREACH OF SECTION 30 (CONFIDENTIALITY), (iv) INDEMNIFYING THE OTHER PARTY PURSUANT TO SECTION 15, or (v) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. 17. DISCLAIMER OF WARRANTY. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE TOWER FACILITY OR THE TOWER. LICENSEE HEREBY ACCEPTS THE TOWER FACILITY “AS IS, WHERE IS, WITH ALL FAULTS.” 18. NOTICES. All notices, demands, approvals, requests and other communications shall be in writing to such Party at the address listed in the introductory paragraph of this Agreement (and in each case, in the event of notice to Licensor, with a copy of such notice to American Towers LLC, 116 Huntington Avenue, Boston, MA 02116, Attention: General Counsel) or at such other address as such Party shall designate by notice to the other Party hereto in accordance with this Section 18 (the “Notice Address”) and may be personally delivered; mailed, via United States certified mail, return receipt requested; or transmitted by overnight courier for next Business Day delivery, and, if not delivered personally, shall be deemed to be duly given or made 2 Business Days after deposit with the applicable carrier or courier. Notices will be deemed to have been given upon either receipt or rejection. Notwithstanding the foregoing, (i) any notice that is given by a Party may be given by the attorneys for that Party and shall be deemed effective for all purposes herein, and (iii) only notices, letters, documents, or instruments threatening to declare or declaring such addressee or recipient in default under this Agreement shall be required to be sent to the attorneys representing such addressee or recipient, if the name and address of such attorney is provided for herein. 19. ASSIGNMENT; SUBLEASING. Licensee may not, directly or indirectly, assign this Agreement as a whole, or any portion of Licensee’s rights, title and interests hereunder without Licensor’s prior written consent. Notwithstanding the foregoing Licensee may, effective upon providing written notice to Licensor, together with a copy of an assignment and assumption document executed by CommScope, IRS Form W -9 and all other paperwork Licensor requires to set up CommScope in Licensor’s billing system, assign Licensee’s rights and obligations under this Agreement to CommScope without the need to obtain Licensor’s consent or to pay Licensor any fee to effect such assignment. In no event may Licensee sublet, sublease, or permit any use of the Tower Facility or Licensed Space by any other party. Any permitted assignee (including CommScope) shall expressly assume, and become bound by, all of Licensee’s obligations under this Agreement. Licensor may freely assign, transfer, or sublease this Agreement and, in such event, Licensor shall be relieved of all of its obligations under this Agreement from and after the date of such assignment or transfer. Licensee shall pay Licensor a fee of $500.00 (which fee shall increase annually on each anniversary of the Commencement Date by a percentage rate increase equal to the Annual Escalator) in each instance in which Licensee requests Licensor to consent to an assignment of this Agreement or in whic h Licensee seeks an estoppel certificate, non-disturbance agreement, subordination agreement or other similar agreement to defray the administrative cost incurred by Licensor to process such requests, prepare and process any necessary documentation, and modify its database and other information systems to reflect any such agreement. Such fee is due upon submission of Licensor’s request and is hereby deemed fully earned by Licensor upon receipt. Notwithstanding anything to the contrary, Licensor may conditio n its consent to any assignment, on among other things, (i) requiring that the assignee execute a new form of license agreement so long as the Monthly License Fee and Initial and Renewal Terms of such agreement are consistent with those set forth in this Agreement, and (ii) requiring the assignee to demonstrate that it LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 17 maintains at the time of such assignment, as evidenced by current financial statements provided to Licensor, a financial position reasonably demonstrating the ability of such assignee to meet and perform the obligations of Licensee hereunder through the unexpired balance of the then current Initial Term or Renewal Term. Any purported assignment by Licensee in violation of the terms of this Agreement shall be void. This Agreement shall be binding upon the successors and permitted assigns of both Parties. 20. SUBORDINATION TO GROUND LEASE. The Parties acknowledge and agree that in the event Licensor’s rights in the Licensed Space and/or any part of the Tower Facility is derived in whole or part pursuant to an underlying lease, sublease, permit, easement or other right of use agreement (a “Ground Lease”), all terms, conditions and covenants contained in this Agreement shall be specifically subject to and subordinate to the terms and conditions of the applicable Ground Lease, a copy of which is attached as Exhibit D with redactions of the economic terms and other terms Licensor deems reasonably confidential, except information related to amounts payable by or other obligations that may be imposed on Licensee. In the event that any of the provisions of the Ground Lease are in conflict with any of the provisions of this Agreement (other than those provisions relating to the length of term, termination rights or financial consideration), the terms of t he Ground Lease shall control. Further, Licensee agrees to comply with the terms of such Ground Lease as applicable to the access and occupancy of the Licensed Space. Notwithstanding anything contained in this Agreement to the contrary, if the Ground Lease expires or is terminated for any reason, this Agreement shall terminate on the effective date of such termination and Licensor shall have no liability to Licensee as a result of the termination of this Agreement. Licensor is under no obligation to exte nd the term of or renew the Ground Lease. Licensor shall give Licensee written notice of such termination or expiration of this Agreement as a result of the termination or expiration of the Ground Lease as soon as practicable. 21. DEFAULT. The occurrence of any of the following instances shall be considered to be a default or a breach of this Agreement by Licensee: (i) any failure of Licensee to pay the Monthly License Fee, or any other undisputed charge for which Licensee has the responsibility of payment under this Agreement, within ten (10) Business Days of the date following written notice to Licensee from Licensor, or its designee, of such delinquency, it being understood, however, that Licensor is obligated to provide such notice only two times in e ach calendar year, and the third instance of the failure to pay the Monthly License Fee or any other charge shall be an immediate default without notice to Licensee if not paid within ten (10) Business Days of the date when due; (ii) except for a PCN Default for which the cure period is set forth in clause (iv) below, any failure of Licensee to perform or observe any term, covenant, provision or condition of this Agreement which failure is not corrected or cured by Licensee within thirty (30) days of receip t by Licensee of written notice from Licensor, or its designee, of the existence of such a default; except such thirty (30) day cure period shall be extended as reasonably necessary to permit Licensee to complete a cure so long as Licensee commences the cure within such thirty (30) day cure period and thereafter continuously and diligently pursues and completes such cure; (iii) failure of Licensee to abide by the Interference provisions as set forth in Section 11; (iv) a PCN Default occurs that Licensee fails to cure within ten (10) days of Licensor’s written notice to Licensee, or its designee of the existence of such default; (v) Licensee shall become bankrupt, insolvent or file a voluntary petition in bankruptcy, have an involuntary petition in bankruptcy filed against Licensee which cannot be or is not dismissed by Licensee within sixty (60) days of the date of the filing of the involuntary petition, file for reorganization or arrange for the appointment of a receiver or trustee in bankruptcy or reorganization of all or a substantial portion of Licensee’s assets, or Licensee makes an assignment for such purposes for the benefit of creditors; (vi) this Agreement or Licensee’s interest herein or Licensee’s interest in the Tower Facility are executed upon or attached; (vii) Licensee commits or fails to perform an act which results in a default under or nonconformance with the Ground Lease by Licensor and the same shall not be cured within ten (10) Business Days (or such shorter time as permitted under the Ground Lease to cure) of the date following written notice to Licensee from Licensor, or its designee, of such default; or (viii) the imposition of any lien on the Approved Equipment except as may be expressly authorized by this Agreement, or an attempt by Licensee or anyone claiming through Licensee to encumber Licensor’s interest in the Tower Facility, and the same shall not be dismissed or otherwise removed within ten (10) Business Days of written notice from Licensor to Licensee. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 18 22. REMEDIES. In the event of a default or a breach of this Agreement by Licensee and after Licensee’s failure to cure the same within the time allowed Licensee to cure such default, if applicable, then Licensor may, in addition to all other rights or remedies Licensor may have here under at law or in equity, (i) terminate this Agreement by giving written notice to Licensee, stating the date upon which such termination shall be effective, accelerating and declaring to be immediately due and payable the then present value of all Monthl y License Fees and other charges or fees which would have otherwise been due Licensor absent a breach of this Agreement by Licensee, discounted by an annual percentage rate equal to five percent (5%), (ii) terminate electrical power to the Approved Equipment, and/or (iii) remove the Approved Equipment without being deemed liable for trespass or conversion and store the same at Licensee’s sole cost and expense for a period of thirty (30) days after which the Approved Equipment, other than Hazardous Materials , will be deemed conclusively abandoned if not claimed by Licensee. Licensee shall pay all reasonable attorney’s fees, court costs, removal and storage fees (including any damage caused thereby), and other items of cost reasonably incurred by Licensor in recovering the Monthly License Fee or other undisputed fee or charge. Licensee shall not be permitted to claim the Approved Equipment until Licensor has been reimbursed for removal and storage fees. Past due amounts that are not disputed under this Agreeme nt will bear interest from the date upon which the past due amount was due until the date paid at a rate equal to ten percent (10%) per annum, or at a lower rate if required by law in the state in which this Agreement is to be performed. 23. GOVERNMENTAL APPROVALS; PERMITS. In the event that any governmental permit, approval or authorization required for Licensor’s use of, operation of, or right to license space to Licensee at the Tower Facility is terminated or withdrawn by any governmental authority or third party as part of any governmental, regulatory, or legal proceeding, Licensor may terminate this Agreement. Licensee hereby agrees that in the event of a governmental or legal order requiring the removal of the Approved Equipment from the Tower, the modification of the Tower, or the removal of the Tower, Licensee shall remove the Approved Equipment promptly, but in no event later than the date required by such order, at Licensee’s sole cost and expense; provided that Licensor will promptly reimburse Licensee for the cost and expense of removing the Approved Equipment if the government or legal order resulted from Licensor’s negligence or willful misconduct. Licensor shall cooperate with Licensee in Licensee's efforts to obtain any permits or other approvals that may be necessary for Licensee’s installation and operation of the Approved Equipment, provided that Licensor shall not be required to expend any funds or undertake any liability or obligation in connection with such cooperation. Licensor may elect to obtain such required approvals or permits on Licensee’s behalf, at Licensee’s sole cost and expense. In no event may Licensee encourage, suggest, participate in or permit the imposition of any restrictions or additional obligations whatsoever on the Tower Facility or Licensor’s current or future use or ability to license space at the Tower Facility as part of or in exchange for obtaining any such approval or permit. In the event that Licensee’s shelter or cabinets are installed above a third-party or Licensor-owned shelter or building, Licensee shall be solely responsible for obtaining any required approvals, or permits in connection with such shelter or cabinet installation, excepting the consent of other users at the Tower Facility and/or the ground landlord which shall remain the sole responsibility of Licensor where required. 24. REPLACEMENT OF TOWER/RELOCATION OF APPROVED EQUIPMENT. (a) Replacement of Tower. Licensor may, at its election and after prior written notice to Licensee, replace or rebuild the Tower or a portion thereof. If Licensor elects to replace or rebuild the Tower or a material portion thereof, Licensor will provide as much notice as reasonably practical, but not less than four (4) months prior notice, to Licensee. Such replacement will (i) be at Licensor’s sole cost and (ii) not result in an interruption of Licensee’s operation of the Approved Equipment beyond that which is necessary to replace the existing Tower. If Licensee, in Licensee’s reasonable discretion, cannot operate the Approved Equipment from the existing Tower during such replacement or rebuild of the Tower, Licensee may establish, at Licensee’s sole cost, a temporary facility on the Tower Facility to provide such services as Licensee deems necessary during any such construction by Licensor so long as adequate space is then LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 19 available. The location of such temporary facilities shall be subject to Licensor’s approval. The Monthly License Fee due hereunder shall be abated for any period during which Licensee is prevented fr om broadcasting from the existing Tower due to such replacement or relocation. At the request of either Party, Licensor and Licensee shall enter into an amendment to this Agreement to clarify the rights of Licensor and Licensee to the new Tower Facility. (b) Intentionally Deleted. (c) Tower Removal: If during the term of this Agreement Licensor determines based on engineering structural standards generally applied to communications towers that the Tower is or has become structurally unsound such that pursuant to generally accepted industry safety standards the Tower or a portion thereof must be removed, then, upon one hundred and twenty (120) days’ prior written notice to Licensee, Licensor may, in its sole discretion either (i) remove the Tower and t erminate this Agreement effective as of the date of such removal, or (ii) modify the Tower and relocate Licensee’s Approved Equipment to an alternative location on the modified Tower. If Licensee and Licensor are not able to agree on an alternative location on the modified Tower for the installation of Licensee’s Approved Equipment within the foregoing one hundred and twenty (120) day notice period, then Licensee or Licensor may elect to terminate this Agreement. 25. EMISSIONS. If antenna power output (“RF Emissions”) is presently or hereafter becomes subject to any restrictions imposed by the FCC or other governmental agency for RF Emissions standards on Maximum Permissible Exposure (“MPE”) limits, or if the Tower Facility otherwise becomes subject to fed eral, state or local rules, regulations, restrictions or ordinances, Licensee shall comply with Licensor’s reasonable requests for modifications to the Approved Equipment which are reasonably necessary for Licensor to comply with such limits, rules, regulations, restrictions or ordinances and Licensor shall use commercially reasonable efforts to cause all other licensees of the Tower Facility to promptly comply. If Licensor requires an engineering evaluation or other power density study be performed to eva luate RF Emissions compliance with MPE limits, then all reasonable costs of such an evaluation or study shall be paid proportionately by Licensee and all other licensees of the Tower within thirty (30) days of Licensor’s request therefor. If said study or a study sponsored by any governmental agency indicates that RF Emissions at the Tower Facility do not comply with MPE limits, then Licensee and Licensor, each for itself, shall immediately take any and all steps necessary to ensure that it is individually in compliance with such limits, up to and including cessation of operation, until a maintenance program or other mitigating measures can be implemented to comply with MPE and in addition, Licensor shall use commercially reasonable efforts to cause all oth er licensees of the Tower to take similar steps necessary to ensure that they are individually in compliance with such limits. 26. ENVIRONMENTAL. Licensee covenants that it will not use, store, dispose, or release any Hazardous Substances on the Tower Facility in violation of Applicable Law. 27. SUBROGATION. (a) Waiver. Licensor and Licensee waive all rights against each other and any of their respective consultants and contractors, agents and employees, for damages caused by perils to the extent covered by the proceeds of the insurance provided herein, except such rights as they may have to the insurance proceeds. All insurance policies required under this Agreement shall contain a waiver of subrogation provision under the terms of which the insurance carrier of a Party waives all of such carrier’s rights to proceed against the other Party. Licensee’s insurance policies shall provide such waivers of subrogation by endorsement. Licensee shall require by appropriate agreements, written where legally required for validity, similar waivers from its contractors and subcontractors. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 20 (b) Mutual Release. Notwithstanding anything in this Agreement to the contrary, Licensor and Licensee each release the other and its respective affiliates, employees and representatives from any Claims by them or any one claiming through or under them by way of subrogation or otherwise for damage to any person or to the Tower Facility and to the fixtures, personal property, improvements and alterations in or on the Tower Facility that are caused by or result from risks insured against under any insurance policy carried by each and required by this Agreement, provided that such releases shall be effective only if and to the extent that the same do not diminish or adversely affect the coverage under such insurance policies and only to the extent of the proceeds received from such policy. 28. GOVERNING LAW. This Agreement shall be governed by the laws of the state in which the To wer Facility is located, with the exception of its choice of laws provisions. If any provision of this Agreement is found invalid or unenforceable under judicial decree or decision, the remaining provisions of this Agreement shall remain in full force and effect. Any approval, consent, decision, or election to be made or given by a Party may be made or given in such Party’s sole judgment and discretion, unless a different standard (such as reasonableness or good faith) is provided for explicitly. 29. MISCELLANEOUS. Upon Licensor’s written request, Licensee shall promptly furnish Licensor with complete and accurate information in response to any reasonable request by Licensor for information about any of the Approved Equipment or utilities utilized by Licensee at the Tower Facility or any of the channels and frequencies utilized by Licensee thereon. In the event that this Agreement is executed by Licensor, its Affiliates or any trade name utilized by Licensor or its Affiliates and such signatory does n ot hold the real Tower Facility or leasehold interest in the affected Tower Facility, the execution of this Agreement shall be deemed to have been properly executed by Licensor or Licensor’s Affiliate which properly holds such interest in the affected Tower Facility. Upon the termination or expiration of this Agreement, Licensee shall immediately upon the request of Licensor deliver a release of any instruments of record evidencing such Agreement. Notwithstanding the expiration or earlier termination of this Agreement, Sections 15, 16, 17, and 26 shall survive the expiration or earlier termination of this Agreement. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision herein (whether or not similar), nor sha ll such waiver constitute a continuing waiver unless expressly agreed to in writing by the affected Party. This Agreement constitutes the entire agreement of the Parties hereto concerning the subject matter herein and shall supersede all prior offers, negotiations and agreements, whether written or oral. No revision of this Agreement shall be valid unless made in writing and signed by authorized representatives of both Parties. This Agreement may be executed in any number of counterparts, each of which s hall be an original, but all of which together shall constitute but one instrument. The Parties agree that a scanned or electronically reproduced copy or image of this Agreement shall be deemed an original and may be introduced or submitted in any action or proceeding as a competent evidence of the execution, terms and existence of this Agreement notwithstanding the failure or inability to produce or tender an original, executed counterpart of this Agreement and without the requirement that the unavailabil ity of such original, executed counterpart of this first be proven. 30. CONFIDENTIALITY. Neither Party shall use the other’s name, service mark or trademark in any public announcement or advertisement without the prior written consent of the other Party, w hich may be withheld in such Party’s sole and absolute discretion. 31. DISPUTES. If Licensee in good-faith disputes any invoice, Licensee will (i) pay all charges not disputed, and (ii) notify Licensor of the dispute in writing within sixty (60) days of the date of the invoice containing the disputed charge, providing the invoice number and an explanation of the issue in dispute. Payment of any undisputed amount will not prejudice Licensee’s right to object to the disputed amount. The Parties will cooperate in LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 21 good faith to resolve any such dispute as soon as reasonably possible after Licensee notifies Licensor of the dispute. If both Parties agree that a disputed amount is a legitimate charge, Licensee will pay such amount within sixty (60) days of such agreement. If the Parties are unable to come to an agreement regarding the disputed charge during the sixty (60) day resolution period, then the dispute will be escalated to Licensee’s VP and Licensor’s VP, who will attempt to resolve the dispute in good faith within sixty (60) days after escalation. If the dispute remains unresolved, either Party may utilize any rights granted to them under this Agreement. This Section 31 shall not apply to the Monthly License Fee. The submission of this Agreement for examination and negotiation does not constitute an offer to license, or a reservation of, or option for, any portion of the Tower Facility, and Licensee shall have no right to use or occupy any portion of the Tower Facility or any appurtenant easement area hereunder until the execution and delivery of this Agreement by both Licensor and Licensee. ATTACHED EXHIBITS: Exhibit A: List of Approved Equipment and location of the Licensed Space Exhibit B: Site Drawings indicating the location of Ground Space for Licensee’s equipment shelter or space in Licensor’s building (as applicable) Exhibit C: As-Built Drawings or Construction Drawings to be attached within forty-five (45) days after the Commencement Date in accordance with Section 3 Appendix I: Definitions Appendix II: Insurance LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 22 Exhibit A List of Approved Equipment and location of the Licensed Space LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 23 Exhibit B Site Drawing indicating the location of Ground Space for Licensee’s equipment shelter or space in Licensor’s building (as applicable) Licensee shall not commence installation until Licensor has approved in writing said drawing and attached it hereto. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 24 Exhibit C As Built Drawings or Construction Drawings To be attached hereto within one hundred twenty (120) days after the Commencement Date. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 25 Exhibit D Ground Lease LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 26 Appendix I Defined Terms Affiliate(s): Any corporation, partnership, limited liability company or other entity that (i) is controlled directly or indirectly (through one or more subsidiaries) by Licensee, (ii) is the successor or surviving entity by a merger or consolidation of Licensee pursuant to Applicable Law, or (iii) purchases all or substantially all of the assets of Licensee. For purposes of this definition, “control” means the possession of the right through the ownership of fifty percent (50%) or more of the shares with voting rights to effectively direct the business decisions of the subject entity. Agreement: defined in the introductory paragraph. Annual Escalator: defined in Section IV. Applicable Law: All applicable statutes, ordinances, laws, regulations and directives of any federal, state or local governmental unit, authority or agency having jurisdiction over a Licensed Space or affecting the rights and obligations of Licensor or Licensee under this Agreement, including without limitation, the Communications Act of 1934, as amended from time to time, FCC Rules and Regulations, and the rules, regulations and written policies and decisions of the FAA. Application: defined in Section IV. Application Fee: defined in Section IV. Approved Equipment: the communications system, including antennas, radio equipment, cabling and conduits, shelter and/or cabinets and other personal property owned or operated by Licensee at the Licensed Space, as defined in Exhibit A or B to this Agreement. BLM: defined in Subsection 5(d). Business Day: a day other than a Saturday, Sunday or legal holiday for commercial banks under the laws of the United States or the state in which the Tower Facility is located. Claims: demands, claims, suits, actions, proceedings or investigations brought against a Party by an unrelated or unaffiliated person or entity. Commencement Date: defined in Section IV. Common Expenses: defined in Section 7. Connection Fee: defined in Section IV. Construction Drawings: defined in Section 3. Damages: debts, liabilities, obligations, losses, damages, excluding consequential or punitive damages, costs and expenses, interest (including, without limitation, prejudgment interest), penalties, reasonable legal fees, court costs, disbursements and costs of investigations, deficiencies, levies, duties and imposts. Easement: defined in Section 2. Effective Date: defined in the introductory paragraph. FAA: the United States Federal Aviation Administration or any successor federal agency established for the same or similar purpose. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 27 FCC: the United States Federal Communications Commission or any successor federal agency established for the same or similar purpose. FCC Rules and Regulations: All of the rules, regulations, public guidance, written policies and decisions governing telecommunications generally and wireless telecommunications specifically as promulgated and administered by the FCC, which on the Effective Date includes, but is not limited to, those administered by the Wireless Telecommunications Bureau of the FCC and more specifically referenced as the Code of Federal Regulations, title 47, parts 0 through 101, as amended. Final Rule: defined in Subsection 11(g). Ground Lease: defined in Section 20. Ground Space: The portion of the Tower Facility licensed for use by Licensee to locate a portion of the Approved Equipment thereon, in the square footage amount depicted on Exhibit B of this Agreement. In no event shall the Ground Space include the air space or rights above the Approved Equipment located in the Ground Space. Hazardous Substances: Any hazardous material or substance which is or becomes defined as a hazardous substance, pollutant or contaminant subject to reporting, investigation or remediation pursuant to Applicable Law; any substance which is or becomes regulated by any federal, state or local governmental authority; and any oil, petroleum products and their by-products. Holdover Fee: defined in Subsection 6(c). Indemnified Party: any person or entity entitled to indemnification under Section 15 hereof. Indemnifying Party: any person or entity obligated to provide indemnification under Section 15 hereof. Initial Term: defined in Section IV and referenced in Subsection 6(c). Interference: defined in Subsection 11(a)(i). Labeling Fee: defined in Section 9. Licensed Frequencies: defined in Subsection 11(a)(ii). Licensed Space: Location of the Approved Equipment on the Tower and at the Ground Space as more specifically described in Exhibits A and B attached hereto. Licensed User: defined in Subsection 11(a)(iii). Licensee: defined in the introductory paragraph. Licensor: defined in the introductory paragraph. Monthly License Fee: defined in Section IV and referenced in Subsection 5(a). MPE: defined in Section 25. Notice Address: defined in Section 18. NTP (Notice to Proceed): Written notice from Licensor to Licensee acknowledging that all required documentation for the construction and installation of the Approved Equipment has been received and LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 28 approved by Licensor and Licensee is authorized to commence its installation of th e Approved Equipment at the Licensed Space, as more particularly set forth in Subsection 10(a) of this Agreement. Paying Carrier: defined in Subsection 24(b). Paying Carrier Rate: defined in Subsection 24(b). Party(ies): Licensor or Licensee. PCN Default: defined in Subsection VI.A. PCN Retention Fee: defined in Subsection VI.A. PCNs: defined in Subsection VI.A. Permitted Frequencies: defined in Section III. Priority User: defined in Subsection 11(a)(iv). Relocation Application Fee: defined in Section IV. Relocation Notice: defined in Subsection 24(b). Remittance Address: defined in Section II. Renewal Term(s): defined in Section IV and referenced in Subsection 6(b). RF Emissions: defined in Section 25. Site Inspection Fee: defined in Section IV. SSIS: defined in Subsection 10(b). SSIS Fee: defined in Subsection 10(b). Structural Analysis Fee: defined in Subsection 10(b). Subsequent User: defined in Subsection 11(a)(v). Term: Initial Term and each Renewal Term which is effected pursuant to Section 6 of this Agreement . Tower: A communications or broadcast tower owned and operated by Licensor and located at the Tower Facility. Tower Facility: Certain real property owned, leased, subleased, licensed or managed by Licensor shown on page 1 of this Agreement, on which a Tower owned, leased, licensed or managed by Licensor is located. Trigger Condition: defined in Section 24(b). Unlicensed Frequencies: defined in Subsection 11(a)(vi). Unlicensed User: defined in Subsection 11(a)(vii). Utility Change Event: defined in Subsection 5(b). LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 29 Utility Fee: defined in Section IV. USFS: defined in Section 5(d). Work: all work relating to the construction, installation, relocation and reconfiguration of Licensee’s Approved Equipment on the Tower Facility, including without limitation, construction management, construction of an equipment pad, installation or modification of lines, antennas, shelters and equipment cabinets. LICENSOR SITE NAME / NUMBER: Bremerton- City 3 / 310495 LICENSEE SITE NAME / NUMBER: ATC Bremerton City 3 / W31F2 30 Appendix II Insurance A. Licensor shall maintain in full force during the Term of this Agreement the following insurance: 1. Worker’s Compensation Insurance with statutory limits in accordance with all applicable state, federal and maritime laws, and Employers’ Liability Insurance with minimum limits of $500,000.00 per accident/occurrence, or in accordance with all applicable state, federal and maritime laws. 2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Da mage), the limits of liability of which shall not be less than $1,000,000.00 per occurrence. 3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00). The above insurance shall provide that Licensee will receive not less than thirty (30) days written notice prior to any cancellation of, or material change in coverage. The insurance specified in this Item A shall contain a waiver of subrogation against Licensee and shall name Licensee as an additional insured, and shall be primary over any insurance coverage in favor of Licensee but only with respect to and to the extent of the insured liabilities assumed by Licensor under this Agreement and shall contain a standard cross - liability endorsement. B. Licensee shall maintain in full force during the Term of this Agreement and shall cause all contractors or subcontractors performing Work on any Licensed Space prior to the commencement of any such Work on behalf of Licensee to maintain the following insurance: 1. Worker’s Compensation Insurance with statutory limits in accordance with all applicable state, federal and maritime laws, and Employers’ Liability Insurance with minimum limits of $500,000.00 per accident/occurrence, or in accordance with all applicable state, federal and maritime laws. 2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of liability of which shall not be less than $1,000,000.00 per occurrence. 3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00). The above insurance shall provide that Licensor will receive not less than thirty (30) days written notice prior to any cancellation of, or material change in coverage. The insurance specified in this Item B shall contain a waiver of subrogation against Licensor and shall name Licensor as additional insured, and shall be primary over any insurance coverage in favor of Licensor but only with respect to and to the extent of the insured liabilities assumed by Licensee under this Agreement and shall contain a standard cross-liability endorsement. C. Notwithstanding the foregoing insurance requirements, (a) the insolvency, bankruptcy, or failure of any insurance company carrying insurance for either Party, or failure of any such insuranc e company to pay Claims accruing, shall not be held to waive any of the provisions of this Agreement or relieve either Party from any obligations under this Agreement, and (b) Licensor reserves the right, from time to time, to increase the required liability limits described above in Items A and/or B in accordance with then -current customary insurance requirements in the tower industry nationally. 1 I V AMERICAN TOWER C O R P O R A T I O N Via Certified Mail Return Receipt Requested RECEIVED Article#7012 0470 0000 3899 7050 UL 2 9 2016 July 25, 2016 CITY CLERK City of Bremerton, WA Financial Services 345 6'St, Suite 600 Bremerton, WA 98337 Re: Telecommunications Facilities Lease Agreement between American Tower Asset, LLC, as successor in interest to Tower Asset Sub, LLC, and City of Bremerton, dated October 13, 2006(as amended,modified and/or assigned from time to time,collectively,the"Lease") American Tower Site#310495; Site Name: Bremerton/City 3 Dear Valued Landlord: Pursuant to the terms of the Lease, we are pleased to notify you that American Tower Asset Sub, LLC hereby exercises its right to renew or extend the original or existing renewal, as the case may be, term of the Lease. Please note that our contact information and notice address under the Lease are as follows: For correspondence and notices: AMERICAN TOWER ATTN: LAND MANAGEMENT 10 PRESIDENTIAL WAY WOBURN, MA 01801 Email: Landlord.Relations@americantower.com Phone: 1.866.586.9377(select Option 4) Fax: 1.781.926.4555 We look forward to our continued relationship and we thank you for your past and current cooperation. Sincerely, Shawn Lanier Vice President,Legal 10 Presidential Way • Woburn,MA 01801 • 781.926.4500 Office • 781.926.4545 Fax • www.americantower.com Contract Number~ Vendor~ Subject~ Department~ File Class~ Begin Date~ End Date~ Review Date: Vault Date~ Comments~ 4612 TOWER ASSET SUB LLC Telecommunication Site - Alexander Lake PW Admin LEG 16-3 11/01/2006 10/31/2011 07/01/2011 CPI Two additional 5 year renewal terms 60-120 days notification required r; TELECOMMUNICATIONS FACILITIES LEASE AGREEMENT THIS LEASE AGREEMENT entered into by and between the City of Bremerton, a municipal corporation duly organized and existing under the laws of the State of Washington, as Lessor (hereinafter referred to as "City") and Tower Asset Sub, LLC, a Delaware limited liability company (hereinafter referred to as "lessee") as of this J.~ ) day of 2006( WIT N E SSE T H: 1. ~MISES. The City leases to the Lessee real property located at Clt~ ~ for housing, installing, constructing, operating and maintaining certain telecommunications facilities, legally described and/or depicted in Schedule A ("Premises"). Lessee accepts the Premises for such purpose, subject to the considerations, terms and conditions specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as Lease"). 2. DEFINITIONS. For the purpose of this Lease, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings: Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers; Public street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes, including forest access roads; Public way" means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a permit or lease to occupy and use such streets and easements for telecommunications facilities; Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering telecommunications service; Telecommunications facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment LEASE AGREEMENT - 1 storage structures and other appurtenances used or to be used to transmit, receive, distribute, provide, house or offer telecommunications services; Telecommunications provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities; Telecommunications service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities. 3. USES AND PURPOSES. Lessee shall have the use and occupancy of the Premises for the purpose of transmission and reception of telecommunication and signals in any and all frequencies using real property and telecommunications facilities approved in Schedule A. Lessee shall be responsible for adherence to all federal, state and local regulations pertaining to the operation of a communications facility. Lessee shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities, as described in Schedule A after obtaining required permits and as approved by City on the Site Plan. City shall provide Lessee access to the Premises at all times reasonable to service the Premises and the telecommunication facilities at all times during this Lease. Lessee agrees to provide the City with a schedule outlining the frequency of required visits (e.g., quarterly maintenance check, monthly site cleanup, etc.) Lessee shall provide the City with a list of all authorized individuals who will have access to the Premises. Notification of changes to the list shall be provided to the City within 24 hours by telephone or fax from the point of contact identified in Section 41 (G), which notice shall be followed by written notification pursuant to Section 41 (G). Lessee shall be responsible for conducting appropriate background checks of all of their employees. Employees visiting the Premises shall be clearly identifiable as employees of the Lessee either by uniform identification badge or marked company vehicle. LEASE AGREEMENT - 2 4. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude the City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or other persons for telecommunications or any other purpose. 5. TERM OF LEASE. This Lease shall be valid for a term of five year(s) commencmg "71 (!11'--" I; ;;LOt) rp and terminating ()c;:t- 3)/ .::2 all . 6. RIGHTS GRANTED. This Lease does not convey any right, title or interest in the City property, but shall be deemed the right only to use and occupy the City property for the limited purposes and term stated in the Lease. Further, this Lease shall not be construed as any warranty of title. 7. INTERFERENCE WITH OTHER USERS. The Lessee acknowledges that the City may enter into leases with other tenants for their equipment and telecommunications facilities for the purposes of transmitting and receiving telecommunication signals from City property. The City, however, is not in any way responsible or liable for any interference with Lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the Lessee's use ofthe City property, and such use or operation was not in existence on the date of execution of this Lease, and the Lessee cannot resolve this interference with the other tenants, the City will, upon written request by Lessee, cause such interfering use to cease. Lessee understands that if its use interferes with a prior tenant, and the interference problem cannot be cured, this Lease may be terminated by the City pursuant to Sections 34 and 35. The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at Lessee's own expense and without installation of extra filters on City- owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other City facilities located upon the City property subject to this Lease except those City antenna sites placed upon Lessee's facilities pursuant to Section 10.8. 8. OWNERSHIP AND REMOVAL OF IMPROVEMENTS. All buildings, landscaping and all other improvements, except the telecommunications facility, shall become the property of the City upon expiration or termination of the Lease. In the event that the City requires removal of such improvements after termination of the Lease, such removal shall be accomplished at the sole expense of the Lessee and completed within 30 days after receiving notice from the City requiring removal of the improvements. Additional time may be granted upon the discretion of the City which approval shall not be unreasonably withheld. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall, at the City's option, ifnot removed by the Lessee upon 30 days written notice from the City, be removed and stored at the expense of Lessee. Stored LEASE AGREEMENT - 3 telecommunications facilities that are not claimed by the Lessee within six (6) months from termination of the Lease shall become the property of the City. 9. CANCELLA TION OF LEASE BY LESSEE. A. All Leases are contingent upon the Lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days prior written notice to the City. Lessee agrees to restore City property to original condition if cancellation is requested, reasonable wear and tear excepted. B. In the event that the holder of a Lease determines that the City property is unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 180 days written notice to the City. However, no prepaid rent shall be refundable; except in the event any changes occur with respect to the City's use of the property subsequent to the effective date of this Lease (including but not limited to additional Lessees as permitted by the City) and such changes result in the property becoming unsuitable for Lessee's intended purpose. 10. COMPENSATION TO THE CITY. A. This Lease is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the Lessee; starting on the Commencement Date and on the first day of each month thereafter during the term of the Lease, Lessee shall pay rent at a rate of One Thousand Two Hundred and Noll 00 Dollars 1,200.00) per month, prorated for any partial months. Substantial expansion of the initial configuration contained in Schedule A will result in review and possible re-negotiation of the rental rate contained herein. At the beginning of each successive year thereafter, the monthly rent shall automatically be adjusted based upon the CPI for all urban consumers, Seattle-Tacoma index (1982-84=100) as published by the Bureau of Labor Statistics for the last month for which statistics are posted prior to the effective date above. However, rent shall not, in any case, decrease, nor shall the annual rent increase by more than five (5) percent per year above the annual rent for the preceding year. Any payments received after the due date shall include a late payment penalty of2% of the annual rental fee for each day or part thereof past the due date. B. Additional Consideration. City shall be allowed, at City's sole expense, to attach City's communication antennas to Lessee's telecommunications tower provided City first obtains Lessee's prior written consent for such attachments. Such consent shall not be unreasonably withheld. Lessee's approval for said attachments shall be contingent upon determining whether Lessee's tower is properly engineered to accommodate City's antenna LEASE AGREEMENT - 4 system and such transmission shall not result in any impairment or diminution in the quality of Lessee's service. Further, said approval shall be given only after Lessee has reviewed and approved City's engineering plans for said antenna attachments in a location specified by Lessee. Approval shall not be unreasonably withheld. Upon written approval by Lessee, said attachments shall be installed by qualified licensed contractors and in accordance with Lessee's directives for the method of installment and with permits issued by all applicable governmental authorities having jurisdiction which shall first be obtained by City at its sole expense. City acknowledges and agrees that Lessee reserves the right to relocate City's antennas at any time(s) to accommodate modifications required for Lessee's future system requirements, provided such relocation shall provide equivalent quality of service after such relocation. c. Rent Adjustment. On the fourth annual anniversary date of the Commencement Date of the Lease ("Rent Adjustment Date") the City may adjust the rent due under the Lease in accordance with the following procedure: If the City chooses to adjust the rent, the Rent for the remainder of the Lease term commencing on the Rent Adjustment Date shall be the Fair Market Rental Value. The term "Fair Market Rental Value" shall be the rental rate that comparable space for a wireless telecommunications facility (in terms of quality of location for a similar facility in a similar location) would command on the open market at the time of Rent Adjustment Date. Such amount shall be determined jointly by the City and Lessee through good faith negotiations. If the City determines that a rent adjustment is warranted, it shall so notifY Lessee in writing no earlier than one hundred eighty (180) days prior to the Rent Adjustment Date and no later than one hundred twenty (120) days prior to such date of the rental amount it proposes to commence on that date. Lessee shall respond in writing no later than thirty (30) days from receipt of the City's notice by accepting the proposed rent amount or if it determines that the proposed rent is unsatisfactory, it shall propose a suitable rental amount. The City and Lessee shall thereafter make a good faith and diligent effort to agree on the rent adjustment amount no later than thirty 30) days after receipt by the City of Lessee's proposed rent adjustment. Failure by the City and Lessee to agree to a rent adjustment is grounds for termination of the lease. D. Pursuant to Section 27 Lessee shall pay to the City 50% of any and all sublessee rent for co-location on Lessee's tower. 11. AMENDMENT OF LEASE. Except as provided within the existing Lease, a new lease application and Lease shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application. LEASE AGREEMENT - 5 12. RENEWAL APPLICATION. Lessee shall have the right and option to renew this lease for two (2) additional five (5) year renewal terms. If Lessee desires to renew its Lease under this Article it shall, not more than one hundred twenty (120) days nor less than sixty (60) days before expiration of the current Lease, notify the City of its intent to renew the Lease. Upon receiving such notification the city may request the following information if necessary: A. Any additional information required based upon elements of the current Lease agreement between the City and the Lessee; and B. All deposits or charges required pursuant to City ordinances. The City reserves the right to extend the review period for the renewal application if additional information is required. Should all parties not agree to renewal terms, the current lease may be extended on a month-to-month basis at the sole discretion of the City. 13. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease shall be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease have been cured, or a plan detailing the corrective action to be taken by the Lessee has been approved by the City. 14. IMPROVEMENTS. During the term of this Lease if Lessee wishes to substantially expand the initial configuration contained in Schedule A, Lessee will submit a new application. 15. POLICE POWER. In accepting this Lease, the Lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. 16. INTERFERENCE WITH THE PUBLIC WAYS. The Lessee shall not locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities which interfere with public ways shall be moved by the Lessee, at the Lessee's cost, temporarily or permanently, as determined by the City Public Works and Utilities Director. 17. REPAIR AND EMERGENCY WORK. In the event of an unexpected repair or emergency, the Lessee may commence such repair and emergency response work as required under the circumstances, provided the Lessee shall notify the City as promptly as reasonably possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. LEASE AGREEMENT - 6 18. MAINTENANCE OF LEASE FACILITIES. The Lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. Lessee shall not permit waste, damage, or injury to the premises including any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. Lessee shall not store any chemicals, hazardous or otherwise, in the well head protection area. Lessee shall not restrict site access to City. City shall have the exclusive right to inspect the Lessee's telecommunications facilities and equipment at any time during the term of this Lease to ensure compliance with the terms and conditions herein; Provided, however, Lessee has the right to be present at all inspections of Lessee's telecommunications facilities and equipment, and City shall give Lessee at least 24 hours prior notice of such intent. 19. SIGNAGE. Lessee shall display proper signage as required by the FCC as well as current signage on telecommunication facilities identifYing Lessee, address and a 24 hour phone number. Signage shall be posted and clearly visible at all times. 20. RELOCATION OR REMOVAL OF FACILITIES. Within one hundred eighty (180) days following written notice from the City, the Lessee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways or upon City property whenever the City Public Works & Utilities Director shall have determined that such removal, relocation, change or alteration is reasonable necessary for: A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways; and B. The operations of the City or other governmental entity in or upon the public ways. Additional time for removal or relocation may be granted at the discretion of the City which extension shall not be unreasonably withheld. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 21. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days following written notice from the City, Lessee or any person who owns, controls or maintains on behalf of Lessee any unauthorized telecommunications system, facility or related appurtenances within the public ways or real property of the City shall, at its own expense, remove such facilities or appurtenances from the public ways or property of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: LEASE AGREEMENT - 7 A. Upon expiration or termination of the Lessee's Lease without approved extension or renewal; B. Upon abandonment of a facility within the public ways or real property of the City. Any property of a Lessee shall be deemed abandoned ifleft in place 30 days after expiration or termination of the Lease; C. If the system or facility was constructed or installed without the prior grant of a Lease; D. If the system or facility was constructed or installed without the prior issuance of a required City permits; and E. If the system or facility was constructed or installed at a location not permitted by the Lease. Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such persons who may own, control, or maintain telecommunications facilities within the public ways or property of the City to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director, and all necessary permits must be obtained prior to such work. Upon authorized permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property in which event, Lessee shall have no further obligations or liability with respect to such property or facilities. The provisions of this Section shall survive the expiration, revocation, or termination of the Lease granted hereunder. If the City does not authorize abandonment and Lessee fails to remove such facilities within thirty (30) days following notice, Lessee agrees to reimburse the City for any and all costs incurred by the City for facilities removal. 22. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the City and upon City property, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to Lessee, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 23. DAMAGE TO FACILITIES. Unless directly and proximately caused by the willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not be liable for any damage to or loss of any telecommunications facility upon City property or LEASE AGREEMENT - 8 within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within the public ways by or on behalf of the City. 24. RESTORATION OF PUBLIC WAYS, OTHER WAYS AND CITY PROPERTY. A. When the Lessee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, or when Lessee, or any person acting on its behalf damages any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to City construction standards as adopted before the work was undertaken, unless otherwise directed by the City. Lessee shall obtain all requisite permits for such work. B. Ifweather or other conditions do not permit the complete restoration required by this Section, the Lessee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. The Lessee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. D. The Public Works and Utilities Director shall be responsible for inspection and final approval of the condition of the public ways, other ways, and City property following any construction and restoration activities therein. Further, the provisions of this Section shall survive the expiration, revocation, or termination of this Lease. 25. FACILITIES MAPS. The Lessee shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of its telecommunications facilities within the public ways and upon City property. The Lessee shall provide the City with updated maps upon request by the City. 26. BOOKS, RECORDS AND MAPS. All books, records, maps and other documents, maintained by the Lessee with respect to its telecommunications facilities within the public ways and upon City property shall be made available for inspection by the City at reasonable times and intervals; Provided, however, that nothing in this Section shall be construed to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require the Lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. LEASE AGREEMENT - 9 27. LEASED CAPACITY AND CO-LOCATION. Lessee shall have the right, with prior City approval, to sublet the premises consistent with this Lease; provided: A. The Lessee shall furnish the City with a copy of any such proposed lease or agreement between the Lessee and its sub-lessee; B. The sub-lessee has complied, to the extent applicable, with the requirements contained in this Lease; C. The Lessee owns and/or controls the tower facility located on City property; D. The City and Lessee shall agree upon additional rental fee for sub-lessee hook-ups pursuant to Section 10.D. The City encourages co-location on existing telecommunications facilities and to that end will not unreasonably withhold any approvals required by the City. 28. UTILITIES. Electricity, HV AC and telephone service, or other utilities are to be provided to the Premises and Site at Lessee's expense and as outlined in Schedule A. City shall cooperate with Lessee in obtaining utility service. 29. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be responsible for paying real or personal property, excise leasehold, business and occupation, and/or other taxes or licenses which may in the future be assessed as a direct result of the Lessee's operations at the telecommunications facilities described herein. 30. INSURANCE. The Lessee shall, as a condition of the Lease, secure and maintain the following liability insurance policies insuring both the Lessee and the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the Lessee: A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: 1) $2,000,000.00 for bodily injury or death to each person; 2) $2,000,000.00 for property damage resulting from anyone accident; and LEASE AGREEMENT - 10 3) $2,000,000.00 for all other types ofliability. B. Automobile liability for owned, non-owned and hired vehicles with a limit of $2,000,000.00 for each person and $2,000,000.00 for each accident; C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $2,000,000.00; E. The liability insurance policies required by this Section shall be maintained by the Lessee throughout the term of the Lease, and such other period of time during which the Lessee is operating without a Lease hereunder, or is engaged in the removal of its telecommunications facilities. The Lessee shall provide an insurance certificate, together with an endorsement designating the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any facilities pursuant to said Lease. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of the Lessee. The Lessee's insurance shall be primary insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Lessee's insurance and shall not contribute with it. The City shall be provided thirty (30) days advance notice of cancellation of any coverages required in 30.A. above; F. Within thirty (30) days after receipt by the City of said notice, and in no event later than fifteen (15) days prior to said cancellation or intent not to renew, the Lessee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section. 31. GENERAL INDEMNIFICATION. Lessee covenants not to bring suit against the City and hereby agrees to defend, indemnifY, and hold harmless the City, its appointed and elected officers, employees, agents and volunteers from and against any and all liability, loss, costs, damage, and expense, including costs and attorney fees in defense thereof, and including claims by the Lessee's own employees to which the Lessee might otherwise be immune under Title 51 RCW, because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time resulting therefrom, sustained or alleged to have been sustained by any person or persons, and on account of damage to property, arising or alleged to have arisen directly or indirectly out of or in consequence of the performance of this Agreement, whether such injuries to persons or damage to property is due to the negligence of the Lessee, its agents, employees, representatives or assigns. This provision shall be inapplicable to the extent LEASE AGREEMENT - 11 such damage or injury is judicially found to be caused by the sole negligence of the City. This provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated by the parties. Lessee assumes the risk of damage to its facilities located in the City's public ways, rights-of- way, easements, and property from activities conducted by the City, its officers, employees, agents, and volunteers. The Lessee releases and waives any and all claims against the City, its officers, employees, agents, and volunteers for damage to or destruction of the Lessee's facilities except to the extent any such damage or destruction is caused by the willful and malicious action of the City, its officers, employees, agents, or volunteers. 32. CONSTRUCTION AND COMPLETION BOND. A performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing the Lessee's telecommunications facilities within the public ways of the City or upon City property shall be deposited in the event construction is commenced. A. Except as provided below, the construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City, including restoration of public ways and other property affected by the construction. B. The construction bond shall guarantee, to the satisfaction of the City: 1) Timely completion of construction; 2) Construction in compliance with applicable plans, permits, technical codes, and standards; 3) Proper location of the facilities as approved by the City; 4) Restoration ofthe public ways and other public or private property disrupted, damaged, or otherwise affected by the construction. The construction bond shall warrant said restoration work for a period of 1 year; 5) The submission of 'as-built' drawings after completion of the work as required by this Chapter; and 6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. 33. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, LEASE AGREEMENT - 12 merger, consolidation or other act of the Lessee, by operation oflaw or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. A. No Lease shall be assigned or transferred in any manner within twelve (12) months after the initial grant of the Lease, unless otherwise provided. B. Absent extraordinary and unforeseeable circumstances, system or integral part of a system shall be assigned or transferred before construction of the telecommunications facility has been completed. C. The Lessee and the proposed assignee or transferee of the system shall provide and certify the following information to the City not less than sixty (60) days prior to the proposed date of transfer: 1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; 2) All information required of a lease applicant with respect to the proposed transferee or assignee; and 3) An application fee. D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to own, hold and operate the telecommunications facility pursuant to this Lease. E. Unless otherwise provided in this Lease, the Lessee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Lease. No approval shall be deemed approved until all such costs and expenses have been paid. F. Any transfer or assignment of the lease, system, or integral part of a system without prior written approval of the City under this Section or pursuant to the Lease shall be void and is cause for revocation of the lease. G. Lessee shall make no assignment or transfer of this Agreement without obtaining the written consent of Lessor, which consent shall not be unreasonably withheld. 34. TRANSACTIONS AFFECTING CONTROL OF LEASE. Any transactions which singularly or collectively result in a change of 50% or more of the ownership or working LEASE AGREEMENT - 13 control of the Lessee, of the ownership or working control of the telecommunications facility, of the ownership or working control of affiliated entities having ownership or working control of the Lessee or of a telecommunications facility, or of control of the capacity or bandwidth of the Lessee's telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to Section 33 hereof. Transactions between affiliated entities are not exempt from City approval. The Lessee shall promptly notifY the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of Lessee's company. Every change, transfer, or acquisition of control of a Lessee's company shall cause a review of the proposed transfer. In the event that the City adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the Lease. Approval shall not be required for mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling, controlled by, or under common control with the Lessee. 35. REVOCA TION OR TERMINATION OF LEASE. The Lease granted by the City to use or occupy public ways of the City or City property may be terminated for the following reasons: A. Lessee's construction or operation in the City or in the public ways of the City or upon City property without proper City authorization; B. Lessee's construction or operation at an unauthorized location; C. Unauthorized substantial transfer of control of the Lessee; D. Unauthorized assignment of Lease; E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a substantial interest therein; F. Misrepresentation by or on behalf of the Lessee in any application or written statement upon which the City relies in making the decision to grant, review or amend said Lease; G. Abandonment of telecommunications facilities in the public ways or upon City property; H. Failure to relocate or remove facilities as required in this Lease; I. Failure to pay taxes, compensation, fees or costs when and as due the City; J. Insolvency or bankruptcy of the Lessee; LEASE AGREEMENT - 14 K. Failure to construct or operate in accordance with approved permits; and L. Violation of any material provision or term of this lease. 36. NOTICE AND DUTY TO CURE. In the event that Lessee is in violation of or defaults under the provisions of the Lease, the Lessee shall be given written notice of the apparent violation, default or non-compliance, providing a short and concise statement of the nature and general facts of the violation, default or non-compliance, and providing the Lessee a reasonable period of time not exceeding 90 days to cure the violation. 37. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. If the City Council determines that a Lessee willfully violated or failed to comply with any of the provisions of this Lease after notice is given the Lessee by the City under the provisions of this Lease, then the Lessee shall forfeit all rights conferred hereunder and the Lease may be revoked or annulled by the City. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies and to recover damages and costs incurred by the City by reason of the Lessee's failure to comply. 38. NOTICE OF ENTRY ON PRIVATE PROPERTY. If directed by the City, at least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform permitted new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the City, upon the affected property by the Lessee. A door hanger may be used to comply with the notice and posting requirements of this Section. The Lessee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Provided, however, that nothing in this Lease shall permit the Lessee to unlawfully enter or construct improvements upon the property or premises of another. 39. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a Lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The City reserves the general right to see that the telecommunications facility of the Lessee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the LEASE AGREEMENT - 15 repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from the Lessee. 40. LIENS. Lessee shall not permit any lien to be imposed upon the property of the City as a result of work done by or on behalf of user and shall indemnify and hold the City harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 41. MISCELLANEOUS. A. This agreement shall be governed by the laws of the State of Washington. B. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. C. Each party agrees to furnish the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. D. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Lease must be in writing and executed by both parties. E. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker. F. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. G. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, to the address of the respective parties set forth below: LESSOR: City of Bremerton Attn: Public Works & Utilities Administrative Manager 3027 Olyrnpus Drive Bremerton, W A 98310-4799 LESSEE: AMffLlc...p<.rJ 7owu.. Attn: LAf'JD MAN"'~E.N-r 0 ffJ..€SIDf-N..,'ltL W~'f WQ80l..rJ / MA 0 jg-o/ AAetl.JCArJ -r owu... Ht, J4"N;I~t1l""" Iwr.. Easbv I MA O"Z.JI (, Prr-r '" : !..t.IrAL. The individuals identified in this paragraph shall be the specific point of contact for each party regarding all topics. Any change to this point of contact shall be delivered to the other party in LEASE AGREEMENT - 16 writing by certified or registered mail, return receipt requested. All payments will be sent to the above address. 42. FIRE PRECAUTIONS. Lessee will ensure that all Forest Protection Regulations and Fire Precaution Levels (IFPLs) are observed during closed season (April 15 - October 15). Lessee shall be responsible for checking IFPLs and keeping activities within those allowed for a specific IFPL. Washington State Department of Natural Resources regulates forest land activities and provides daily IFPLs vial telephone and the internet. 43. NONDISCRIMINATION. Lessee shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status or disability, except employment actions based on a bona fide occupational qualification. LESSEE Date:if ~1 hb I By: Its: Date: /0 -I a - tM,C!!:~ CARY BOZEMAN, Mayor TO FORM: BOYICH, City Attorney LEASE AGREEMENT - 17 State of ./lIJ C(fJ ) County of .A1,\lj/~)O ~ ss. On this ,;:2J~ of ~ urr , 20 &J t , personally appeared r- rf;1"1 f}. H)ryot.. to m own to be the f).'MdtJt;- C".,J Af,,1drttfe"'..- t r7,uv1"'r ~~k- (.. L-e- , a ~(a~ _ l"'/.- c.- corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. In witn'"tiimh6AlWf I have hereunto set my hand and affixed my official seal the day and 7.;AA.-;:"'I'1. year first iPSu ~~'~u. ~ "'~ I.: ~ T....~<<":I\()N EXPII/;.. "1,A. ~ i L~"~~ '~ t. 2011 JIr ...~" \ex: .~ · -e..a;; . = ice.: : = t ~ J.: .. n\. ~..~. . ~ L .......... ..# r,~ AIrYc-" ".,.., .*,VVI'A"(\~. ~\\~ S tate of W as~f<<~~,""~~ Notary Public in and for the State of /I14s:/ Residing at k0?b,,~ ~ . My commission expires: I f1 /J-I>I/ County of Kitsap ss. On this J.3::t/Oday of ~ ' 20[UJ::L_, personally appeared Cary Bozeman to me known to be the Mayor 0 he City of Bremerton, a municipal corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. In witness ,W.DQ)lIoof,] have hereunto set my hand and affixed my official seal the day and L L L III year first ab~~~~t't:eD" "'.7.~~'",,, f v." ~OTARJ-:::.l:%. MAY15,2010: ~ Y/-"" PUBLIC .:~q.~ 1' ~ ... .. 0:,~ 0 ...... \~"Su.",1, I" W~ ~',\' RECEIVED Fa ''PIlU1N(9~\\ STaN, City Clerk R:\LEGAL\Co tracts\FORMS\Telecommunication Facilities Lease.fonn.doc LEASE AGREEMENT - 18 EXHIBIT 'A' DESCRIPTION: THE NORTHWEST QU.~qTER k~D TH~ SOGihwEST QUARTER k~D THE WEST P~F OF THE NORTHEAST QOAqTE: h~D WEST P~F OF THE NORTHWEST QO&qTER OF TtiE SOUTHEAST QUFRTER OF SECTION 29, TOw~TSHI? 2, NORTH, RANGE 1 EAST, W. M ., IN KITSAP COUNTY, WASHINGTON;EXCEPT THE FOLLOWING: THAT PORTION OF THE NORThl~EST QUARTER OF THE SOUTHEAST QOAqTER, SECTION 29, TOwrlSHIP 24 NORTH, RfuVGE 1 EAST, W.M., DESCRIBED AS FOLLOWS:BEGINNING AT A POINT 396 FEET EAST h~D 15 FEET NORTH OF THE SODTmlEST CORNER 02 SAIDNORTnwESTQUARTEROFTHESOG1HE.~T QUPRTER; THENCE EAST ALONG A LINE PAR~LEL TO ANDDISTk~T 15 FEET NORTH OF THE SOUTH LINE OF SAID NORTh~EST QU&qTER OF THE SOUTHEAST QOA~TEr TO THE EAST LINE OF THE SOUTH P_~F OF THE SOUThwEST QQ~qTER OF THE NORTW~EST QUAqTER 0: THE SOGiHE.~T QU.~TER OF SAID SECTION 29; THENCE NORTH ALONG SAID EAST LINE TO THENORTHEASTCO~~ER OF SAID SOuiE R~F OF THE SOUTill~EST QU~RTER OF TEE NORTWNEST QOARTER 0= THE SOulHEAST QUARTER; rnENCE WEST ALONG THE NORTH LINE THEREOF TO A POINT 396 FEET R~~T OF THE NORTHWEST CO~~ER OF SAID SOUTH P~F OF THE SOOT~~EST QUPRTER OF THE NORTh~ESTQUARTEROFTHESOUTHEASTQUARTER; THENCE SOUTH ON A ST~~IGhl LINE TO THE POINT OFBEGINNING. 1~1-'- l"_:'''' -..' f "...., ; t .~_7_~-i' .,-~-'"~1 jJi~,_L// EXHIBIT "8" EXISTING .34'x12' EQUIPMENT SHELTER EXISTING GRAVEL PARKING AREA EXISTING 20' WIDE \ ' GRAVEL ACCeSS DRIVE . / \ PROPOSED 12'x 11 'f GRAVEL ACCESS DRIVE EXISTING TREES TO BE REMOVED i, i,':,_,~,~~"'\'; ,<:,:::,\: f ."' N EE)SITE PU~o'IS' NOTES 1) PLAN SHOWN IS A GR/\PHIC REPRESENTMION Of' L[!ISE J\REA, 2) THIS "DHIBIT G" MAY BE AMENDED OR ADDED TO AT ANY TIME I l(~.",', j../ S~/>> h: 30'50' EXISTING 190' rIV66'a6' LATTICE rowERSa ~ oo"woo'~ l~ EXISTING FENCEc::,!r';:J1.,-, 7~ 7/\j ISoS66~'OO' 86;::~'00'''' NOR THEA, ST CORNER \ OF SECTION 29__1S50'2S'27:' ", 2634 \ 9 H b I o If) EXISTING 60'x50' US WEST CELL SITE PARCEL# 292401-2-022-2008 PROPOSED 4S'x4S' LEASE AREA; SEE SHEET 2 OF 2 SITE. PLAN - 1 OF 2 ONECOMM COMMUNICATIONS BREMERTON/CITY 3 OFF OLD BELFAIR HIGHWAY WA0554022Z-3 APRIL 17, 1995 JUNE 20, 1996 WA55.3-B.OWG MJG 6 20 96 EXHIBIT "B" I PROPOSED FENCE; (4) SIDES PROPOSED 12'x 11;':1: GRAVEL ACCESS DRIYE " EXIS TING 20' WIDE GRAVEL ACCESS DRIVI r I_-"x-~ l I b.." ", e_, ,:j~~_,< ,:~:'! . I "" ',' J",:~t\~ ENLARGED SITE ;'):~',,~ - 2 OF 2 ONECOMM CUrv1MUNICATIONS BREMERTON/CITY 3 OFF OLD BELFAIR HIGHWAY 45'-0" LEASE AREA N LItr)SITE i PlJI,NL. ~~'10'20' NOTES 1) PLAN SHOWI\) IS A GRAPHIC REPRESENTATION OF LEASE AREA 2) THIS "EXliIOIT B" MAY BE AMENDED OR ADDEO TO AT ANY TIME x:, j W l- I- - J U1 1 w--.J 5--.Jo WIU1U o :::l LlJ '01- j-C:!] X W PROPOSED 150' LATTICE TOWER PROPOSED 4S'x4S' LEASE AREA PROPOSED 11 x20' PREFABRICATED EQUIPMENT SHELTER J PARCEL# 292401-2-022-2008 I I i WA0554022Z-j APRIL 17, 1995 JUNE 20, 19996 WA5S.3--g,QWC M,JG 6 20 96 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Management Agreement with Columbia Hospitality, Inc. for the Kitsap Conference Center at Bremerton Harborside COUNCIL MEETING Date: December 18, 2019 Department: Finance Presenter: Melinda Monroe Phone: (360) 473-5306 SUMMARY: The current Conference Center Management Agreement for Kitsap Conference Center will expire on December 31, 2019. A Request for Proposals was issued on June 4, 2019. Three proposals were received. A Proposal Review Committee was formed and reviewed and evaluated the proposals, conducted interviews and performed other due diligence. The Committee recommended retaining Columbia Hospitality, Inc. ATTACHMENTS: 1) Kitsap Conference Center Management Agreement 2) Agreement Proposal Summary 3) Letters of support FISCAL IMPACTS (Include Budgeted Amount): Budgeted amount for 2020 - $1,699,635 STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Columbia Hospitality, Inc. Conference Center Management Operations Agreement; and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A15 Kitsap Conference Center Management Agreement 1 MANAGEMENT AGREEMENT Kitsap Conference Center at Bremerton Harborside BETWEEN CITY OF BREMERTON AND COLUMBIA HOSPITALITY, INC. This MANAGEMENT AGREEMENT ("Agreement") is entered into as of the ___ day of _______ 2020 between the City of Bremerton, a Washington municipal corporation ("City") and Columbia Hospitality, Inc., a Washington corporation ("Contractor"). A. The City is the owner of the Conference center, parking garage, and related facilities known as the Kitsap Conference Center at Bremerton Harborside located at 100 Washington Avenue, Bremerton, WA 98337 (“Conference Center” or “Facility”) as described in Exhibit A: Legal Description. The City desires to hire Contractor to serve as the manager for the conference center on the terms and conditions described below. B. Contractor is experienced in providing management services for conference centers and is willing and able to provide the conference center with services required by the City. Now, therefore, the parties agree as follows: 1. Appointment of Manager. 1.1 Purpose and Administration. The purpose of this Agreement is to establish a management services agreement whereby Contractor will provide certain management and related services to the Facility (as defined below). This Agreement is not a lease, nor does it create a leasehold interest or other similar property interest in Contractor to the Facility. 1.2 Appointment of Contractor as Manager. City hereby engages Contractor, and Contractor hereby agrees to be engaged, as the City's operator and manager of the Facility, with right and control to service, promote, operate and manage the Facility and its personnel in accordance with the terms and conditions set forth herein. 1.3 Scope of Services. Contractor's responsibilities include promoting and managing the use of the Facility; providing food and beverage service; providing other services as set forth herein related to the operation of the Facility; and providing janitorial services for the areas of Contractor's responsibility pursuant to this Agreement, except as otherwise agreed upon between the parties in writing. Additionally, Contractor shall provide competent personnel necessary for such operations and shall train and supervise them in their work. 1.4 Legal Relationship. 1.4.1 This Agreement shall not be construed as establishing a partnership or joint venture between the City and Contractor, and neither party shall be liable for the acts, omissions, debts or obligations of the other, except to the extent as may otherwise be expressly agreed to herein. Except as provided herein, neither party may make any representation or create any liability on behalf of the other, and no rights in any third party shall arise by virtue of the agreements contained herein. Kitsap Conference Center Management Agreement 2 1.4.2 Contractor, its subcontractors, and their employees, are not employees of the City and are not eligible for any benefits through the City, including without limitation federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits. 1.4.3 Except as otherwise provided herein, the parties agree and acknowledge that Contractor is an independent contractor and that no liability shall attach to City as a result of the acts or omissions of Contractor, its agents or employees. 2. Facility. 2.1 The Facility. The Facility shall consist of the Primary Premises (as defined below) and the Additional Premises (as defined below) (collectively, the “Facility”) as follows: 2.1.1 Primary Premises. Contractor shall have exclusive control over, and responsibility for the following areas, in (the "Primary Premises") (The identifying room numbers below are taken from LMN Architects record drawings dated October 1, 2004, page A210 & A212): (a) Conference Center Conference Rooms, including the Conference Center conference room(s), the boardroom, the Conference Center lobby and reception offices, and the Conference Center pre-function area (100, 101, 102 a-d, 103, 126); (b) Conference Center prep kitchen and staff restrooms 120, 120a, 120b, 118, 119); (c) All storage rooms (P204); (d) Conference Center Bridal / Guest Dressing Rooms (114, 115); (e) All Conference Center storage rooms adjacent to the receiving area and prep kitchen (listed above); (f) Conference Center Sales Office (123, 124, 145); (g) All Conference Center public restrooms (121, 122); (h) Conference Center Patio (Exterior plaza immediately in front of room 101); (i) Conference Center Audio - Visual Room (113); (j) Conference Center janitor closets and all electrical, mechanical and communications rooms (112a, 112b, 111); (k) All corridors and common areas among the above stated areas together with all reasonable ingress and egress thereto (110, 110a, 110b, 116); and (l) Transit Harborside Building 3rd floor meeting rooms, pantry and related facilities. Kitsap Conference Center Management Agreement 3 2.1.2 Additional Premises. In addition to the Primary Premises, Contractor may use and book, arrange and conduct events in the following areas, (the "Additional Premises"). (a) Conference Center/Hotel Plaza Contractor shall be the exclusive provider of food, beverage and event booking and production services for the Conference Center/Hotel Plaza. (b) Harborside Fountain Park Facilities, which consist of (1) a meeting/event room and adjoining deck and associated kitchen facilities ("Event Facilities"), (2) restrooms serving the facilities together with connecting hallways ("Bathroom Areas"). Use of the Harborside Fountain Park, is available through arrangement with the City of Bremerton Parks Department. In the event that Contractor utilizes any portion of the Additional Premises, all of the terms of this Agreement shall apply for the limited period of use; provided, however, Contractor shall not have the obligation of maintenance and repair as set forth in Section 6.4 hereof, but instead shall only be responsible for returning that portion of the Additional Premises utilized by Contractor in as good and clean a condition as when received, subject to normal wear and tear. The Contractor shall also be responsible to reimburse, at current rental rates, the City of Bremerton Parks Department for staff time related to the contractor's use of the additional premises. Arrangement for use, as well as resulting reimbursement to the City of Bremerton Parks Department, of adjacent Park facilities is available with the City of Bremerton Parks Department. In the event that Contractor utilizes any portion of the Additional Premises, all of the terms of this Agreement shall apply for the limited period of use; provided, however, Contractor shall not have the obligation of maintenance and repair as set forth in Section 6.4 hereof, but instead shall only be responsible for returning that portion of the Additional Premises utilized by Contractor in as good and clean a condition as when received, subject to normal wear and tear. 2.2 The City's Right to access the Facility. The City may access and utilize the Facility as follows: 2.2.1 Repair & Maintenance. The City may enter the Primary Premises to perform any repair and maintenance the City reasonably believes necessary, provided that the City's repair and maintenance work shall not materially interfere with Contractor's use of the Facility as contemplated herein and the City provides Contractor advance notice of at least twenty-four hours. The City may also enter the Primary Premises to alter or construct major improvements to the Primary Premises in accordance with the Annual Plan and Budget (as defined below), provided that the City's alteration and construction shall not materially interfere with Contractor's use of the Facility as contemplated herein and that the City provides at least ten (10) business days advance written notice to Contractor. Pursuant to Section 6.4, Contractor shall be responsible for maintenance and repair of the Primary Premises. 2.2.2 Use & Occupancy. Except as otherwise expressly provided in this Agreement, the City shall have no right to use or occupy the Primary Premises, other than as a customer of the Contractor. 3. Term and Termination 3.1 Term. Pursuant to IRS Revenue Procedure 97-13, the term of this Agreement shall be five (5) years, commencing on January 1, 2020 (the "Commencement Date") and, unless terminated earlier in accordance with this agreement, expiring on December 31, 2024 (the “Initial Term”). Any additional renewals, if any, shall be mutually agreed upon in writing in advance of contract expiration and approved Kitsap Conference Center Management Agreement 4 by the City Council. Requests for renewal should be made in writing at least 160 days in advance of contract expiration. Upon expiration of the Initial Term, this Agreement shall automatically renew for two (2) successive three- year renewal terms, unless either party provides written notice of its intent not to renew ninety (90) days prior to expiration of the Initial Term. 3.2 Termination - Default. In addition to the other termination rights set forth elsewhere in this Agreement, this Agreement may be terminated prior to expiration of the then current term (Initial or Renewal) by either party, if the other party materially breaches any term of this Agreement or defaults in the performance of any obligation under this Agreement and fails to cure such breach or default within thirty (30) days or (fifteen(15)if the default involves the nonpayment of money) following notice thereof by the non-defaulting party, provided, that if the default cannot reasonably be cured within the 30-day period, the defaulting party shall not be in default if it commences to cure the default within the initial 30-day period and diligently pursues it to completion. The non-defaulting party, shall in addition to its right of termination, be entitled to pursue all other remedies at law or in equity as a result of a default. 3.3 Termination - IRS Revenue Procedure 97-13. Pursuant to IRS Revenue Procedure 97- 13, the City reserves the right to terminate this Agreement, without cause and without penalty on the third anniversary of the Commencement Date. In such event, the City shall provide Contractor no less than ninety (90) days’ prior written notice of termination. 3.4 Termination - Performance. Provided the City is not then in default under this Agreement, the City shall have the right, subject to Contractor's right to cure described below, to terminate this Agreement prior to the expiration of the then current term (Initial or Renewal) upon not less than forty-five (45) days' prior written notice to Contractor, without penalty, if for reasons other than Force Majeure (as defined below), the Facility's Net Income (as defined below) is not equal to or greater than seventy-five percent (75%) of the Net Income budgeted in the applicable Annual Plan and Budget (the "Performance Threshold") for any two (2) consecutive Operating Years (as defined below) commencing with the second full year the Facility is operating, provided, however, that such notice of termination shall be deemed null and void and shall not affect a termination of this Agreement if, within thirty (30) days after the City gives Contractor the notice of termination, Contractor pays to the City the difference between the Facility's actual Net Income and the Performance Threshold for the Operating Year for which the termination notice is provided. For the purposes of this Agreement, "Operating Year" shall be defined as each calendar year during the Term, except that the first Operating Year shall be the partial year beginning on the Commencement Date and ending on the following December 31, and the final Operating Year shall be the year or partial year as applicable beginning on January 1 of the year in which the Agreement expires or is earlier terminated and ending on the expiration date or effective date of termination. 3.5 Survival. Sections 9, 10, and 14 of this agreement shall survive expiration or earliest termination of this agreement. 4. Compensation and Reimbursable Expenses. 4.1 Fixed Fee to Contractor. As compensation for services rendered by Contractor, the City shall pay to Contractor (without right to setoff) a fixed fee of seven thousand five hundred ($7,500) per Kitsap Conference Center Management Agreement 5 month during the Initial Term (the “Fixed Fee”). The Fixed Fee is payable monthly not later than the last day of the month following the month for which services are provided. 4.2 Percentage Fee to Contractor. As additional compensation for services rendered by Contractor the City shall pay to Contractor (without right of setoff) an amount equal to one and one-half percent (1.5%) of Gross Revenues (as defined below) for the applicable period (the "Percentage Fee," and together with the Fixed Fee, the "Management Fee"). The Percentage Fee shall be payable for each Operating Year. The Percentage Fee shall be paid monthly in arrears based on actual Gross Revenues accrued through the end of the immediately preceding calendar month. 4.3 Reimbursable Expenses. The City shall promptly reimburse Contractor for any Operating Expenses (as defined below) to the extent paid directly by Contractor and not out of the Operating Accounts. 4.4 Payment. Amounts payable to Contractor or its Affiliates (as defined below) under this Agreement shall be paid to Contractor in immediately available funds without deduction for taxes or other assessments. At Contractor's option, payments due Contractor or its Affiliates under this Agreement may be made by Contractor out of the appropriate bank accounts required under Section 6.9.2. 4.5 Default Interest. Any and all amounts that may become due from one party to the other under this Agreement shall bear interest from and after the respective due dates thereof at an annual rate of interest of eight percent (8%). An amount due Contractor under this Agreement is deemed received by Contractor when Contractor has the authority and ability, consistent with the prudent exercise of Contractor's duties under this Agreement, to pay itself such amount from the Operating Accounts. 4.6 Required -- Fee Adjustment. Kitsap County issued $11,395,000 in Limited Tax General Obligation Bonds, Series 2002A on April 11, 2002, in part to finance the Kitsap Public Facilities District's contribution towards construction of the Facility. As a condition to receipt of such funds, the City has agreed not to take actions with respect to the Facility that would jeopardize the tax -exempt status of the bonds. Therefore, pursuant to IRS Revenue Procedure 97-13, the Percentage Fee paid to Contractor for any full Operating Year shall not exceed the Fixed Fee for that Operat ing Year. In the event the parties reasonably anticipate that the Percentage Fee for any full Operating Year will exceed the Fixed Fee for that Operating Year, the parties shall adjust the fee schedule to comply with this provision and, in doing so, shall ensure that the level of compensation to be paid Contractor as calculated under the compensation formula originally established above is maintained. In addition, during the first year of operation of the Facility, the Percentage Fee and Fixed Fee may be adjusted by the parties on a monthly basis as necessary to comply with the fixed/percentage fee requirements of IRS Revenue Procedure 97-13. Finally, the Fixed Fee and Percentage Fee formulas in Sections 4.1 and 4.2 above will be evaluated on an annual basis by the parties and adjusted by the parties as necessary to comply with IRS Revenue Procedure 97 -13 and further as may be agreed upon between the parties. 4.7 Definitions. For purposes of this Agreement, the following terms have the meanings set forth below: 4.7.1 “FF&E” are movable furniture, fixtures, or other equipment that have no permanent connection to the structure of a building or utilities. 4.7.2 "Gross Revenues" means all revenue of any kind resulting directly or indirectly from operations at the Facility generated by Contractor pursuant to this Agreement during the period at issue as determined in accordance with Generally Accepted Accounting Principles (GAAP), including without Kitsap Conference Center Management Agreement 6 limitation, (i) all income and proceeds from the rental and use of space within the Facility; (ii) all income and proceeds from food and beverage operations at the Facility; (iii) commissions from subcontractors; and (iv) all income and proceed from goods and services supplied to Facility users. Gross Revenues does not include the following: (a) Applicable federal, state and local excise, sales, use or admissions taxes collected directly from patrons as part of, or based on, the sales price of goods and services. (b) The service staff distribution portion of service charges collected by or on behalf of employees. 4.7.3 "Operating Expenses" means all ordinary and necessary expenses incurred in the maintenance and operation of the Facility, including without limitation the following: (a) Cost of operations, maintenance, and repair of all operating equipment and replacement of minor items initially supplied by the City and cost of operating supplies. (b) Contractor's expense associated with the cost of compensation, benefits and payroll taxes of all personnel working at the Facility or while performing duties with respect to the Facility from other locations, including, without limitation, at Contractor's or Contractor's Affiliates' offices, excluding Contractor's "Executive Personnel" and the portion of gratuities kept by Contractor employees. For proposes of this provision, Contractor's Chief Executive Officer, the Chief Operating Officer, the Senior Vice Presidents, and the Corporate Controller and their successors (unless specifically otherwise agreed in writing) are Contractor's "Executive Personnel.” City has the right to approve all time spent and billed to the Facility operations by Contractor personnel located outside the Facility that is not otherwise reflected in the Annual Plan and Budget; (c) Cost of utilities servicing the Facility; (d) Cost of repair and maintenance of the Facility, excluding maintenance and repairs that are the City's sole responsibility; (e) Premiums for workers' compensation insurance and public liability insurance as may be required under this Agreement, together with any deductibles or reasonable costs to cover any self-insured losses; (f) Cost of all business taxes and valid third party assessments against Contractor or the City with respect to the operation of the Facility, excluding federal, state and local income taxes; (g) Cost of reasonable legal, accounting, auditing and human resources fees for services directly related to the operation of the Facility, provided, however, that each party shall bear its own legal and accounting fees associated with the negotiation and drafting of this Agreement; Manager may determine with City that certain disciplines of the Facility, (e.g. Accounting, Human Resources and Marketing) as listed on Exhibit B are more effectively and efficiently managed centrally versus on the property. Charges for such disciplines which are centrally managed but directly provided to the Facility will be billed to the Facility as an Operating Expense (“Centralized Services”). Centralized Services shall be paid monthly (prorated for any partial month) in arrears, no later than the fifteenth (15th) day of each month. The City will have discretion to approve such services as part of the annual budget review. Kitsap Conference Center Management Agreement 7 (h) Costs of technical consultants and specialized operational experts for specialized services in connection with non-recurring work on operation, functional design or construction problems; (i) All costs and expenses for marketing, advertising, promotion and sales activity directly related to the Facility, including travel, f ood and beverage and lodging while away from the City of Bremerton on these activities; City will reimburse Contractor for these expenditures to the extent they were incurred in accordance with City's travel policies. (j) Contractor's Fixed Fee and Percentage Fee pursuant to Sections 4.1 and 4.2; (k) All costs and expenses associated with the provision of food and beverage services and event production services for events at the Facility; (l) Deposits into the Reserve Account; and (m) All other reasonable charges and expenses associated with the operation and management of the Facility to the extent set forth in the Annual Plan and Budget, authorized under Section 6.6 or otherwise authorized by the City in writing. Notwithstanding the foregoing Operating Expenses do not include (i) depreciation or amortization; (ii) debt service on any bonds or indebtedness to construct the Facility; (iii) costs of repairing or maintaining the roof, exterior, foundations and structural components of the Facility; (iv) costs to repair or replace construction or design defects in the Facility. 4.7.4 "Net Income" means for any period, the amount, if any, by which Gross Revenue for that period exceeds Operating Expenses for that period. 5. City Responsibilities 5.1 Generally. Subject to the terms and conditions set forth herein, the City shall commit sufficient financial and other resources to permit the Facility to be operated by Contractor in accordance with the Annual Plan and Budget and in a manner consistent with the other conference centers and properties managed by Contractor (the "Operating Standard"). 5.2 Parking. City shall provide for at least 150 parking spaces at the Facility garage for use by patrons of the Facility at then prevailing market rates or as otherwise neg otiated by Contractor. Patrons do not include any employees or subcontractors of Contractor. City shall provide, as available, parking for use by employees and caterers of the Facility at a negotiated hourly rate. City will provide seven (7) spaces for sen ior staff of the Facility at monthly market rates. All costs and expenses for parking under this Section shall be Operating Expenses under Section 4.7.3. 5.3 Repair & Maintenance. The City, at its sole cost and expense, shall repair and maintain the roof, foundations, fire suppression system, HVAC system, elevators, escalators, security system, dock structure (if any), structural components and all exterior elements of the Facility. 5.4 Noninterference. Contractor has the sole responsibility and authority to manage the day- to-day operations of the Primary Premises and any of Contractor's activities occurring within the Additional Premises. To the extent the City's consent or approval is required under this Agreement, Kitsap Conference Center Management Agreement 8 such consent or approval may not unreasonably be withheld, delayed or conditioned. The City may, however, withhold its’ consent whether or not such withholding is considered unreasonable if Contractor's proposed actions are reasonably deemed by City to be contrary to the Facility's Mission Statement as follows: The Kitsap County Regional Conference Center will be designed and operated to establish a first-class conference and event center on the Bremerton waterfront. Its unique design, spectacular view, creative cuisine, and first-class service will provide a complete experience for corporate meetings, community social events, naval facility activities, and create opportunities for county educational institutions. The Conference Center will serve as an economic enhancement for the further revitalization of the Bremerton waterfront and Kitsap County. 5.5 Sales of Goods at the Facility. The City reserves the right to approve any items sold at the Facility or items that carry any sort of identification with the Facility, except for food and beverage as provided as part of a function under this Agreement. 6. Contractor Responsibilities. 6.1 Professional Skill & Judgment. Contractor shall use its highest standard of professional skill and judgment in managing the Facility and shall use all reasonable efforts to promote the reputation and financial success of the Facility. Contractor shall at all times undertake its activities in a manner consistent with the Mission Statement. Contractor will be responsible for the overall management of the Facility, including, without limitation, the services described in this Section 6. In so doing, Contractor may, at its option, directly perform such services itself and on an exclusive basis or through the use of a short list of preferred vendors . If Contractor chooses to work with preferred vendors, it is authorized and directed to use its sole discretion and good faith judgment in choosing and managing such vendors and sub-contractors. 6.2 Business License. Contractor shall obtain a City of Bremerton business license as required by Chapter 5.02 of the Bremerton Municipal Code prior to beginning work under this Agreement. 6.3 Personnel. Contractor shall hire, train, manage and terminate all executive staff, operating and service employees and subcontractors hired or retained to assist in the operation of the Facility. All personnel hired by Contractor for the Facility shall be Contractor's employees or sub -contractors and not the City's, provided that such personnel shall be employed at the expense of the City. 6.4 Maintenance and Repairs; Alterations. Contractor shall, at the City's sole cost and expense, undertake normal maintenance and repair to the Primary Premises and all FF&E located within the Primary Premises. Contractor shall comply with RCW Chapters 39.04, 39.12 and 39.80, if and as applicable, for maintenance and repairs. In this regard, Contractor will periodically seek the advice of the City in such matters and the City will provide administrative and purchasing support to Contractor if requested. Contractor may not undertake physical alterations (excluding paint and wall and floor finishes) to the Facility without the prior written consent of the City unless set forth in the Annual Plan and Budget. All contracts entered into pursuant to this paragraph, without regard to whether City is bound thereon, shall contain a provision (1) that City is a third- party beneficiary of the agreement, (2) that all representations, warranties and guarantees are fully assignable to City, and (3) that the contract ma y be assumed by City in the event of termination of this Agreement. In addition, all goods acquired pursuant to this paragraph shall be titled in the name of City. Kitsap Conference Center Management Agreement 9 6.5 Pro Forma. Contractor will prepare and submit to City a pro forma financial and operating statement that describes Contractor's planned activities at the Facility over the term of this Agreement, including proposed budgets for marketing, catering, and operations (the "Pro Forma") within thirty (30) days of the commencement of the renewal term unless otherwise agreed. Contractor will prepare the Pro Forma using its good faith business judgment. The Pro Forma represents an estimate and is subject to factors beyond Contractor's control. Contractor acknowledges that City will refer to the Pro Forma, as adjusted for actual results, to judge performance by Contractor during the term of this Agreement. 6.6 Annual Plan and Budget. By July 31st of each Operating Year of the Term hereof (with an initial estimate of total Gross Revenues and Operating Expenses without detail no later than July 31st) Contractor shall prepare and submit to the City for its review and approval a proposed operating plan and budget for the Facility for the following Operating Year (the "Annual Plan and Budget"). The Annual Plan and Budget must provide reasonable detail regarding the time and money to be spent on operations as well as reasonable estimates of Gross Revenues and Operating Expenses and proposed FF&E replacements and withdrawals from the Reserve Account. The FF& E replacements and improvements shall address items in the Asset inventory list per Exhibit C and provide the value cost of the replacement amount or the repair reserve amount needed in the corresponding budget year . In the event that item is not already included in the list it will be added. The Annual Plan and Budget will also include a narrative description of the sales and marketing program. The Annual Plan and Budget shall be considered with the Pro Forma as adjusted by changes in general economic conditions past operating experience, and competitive conditions. The Annual Plan and Budget will be Contractor's best estimate of operations for the following calendar year and the parties recognize that actual results may vary from the Annual Plan and Budget. The Annual Plan and Budget will contain a summary of the proposed expenditures for the year ("Summary Page"). The City shall have one hundred twenty (120) days from its receipt of the Annual Plan and Budget to approve or disapprove the Annual Plan and Budget. Once the Annual Plan and Budget is approved, Contractor is authorized to incur the expenditures and implement the provisions of the Annual Plan and Budget. Contractor may not expend more than the expense items in the Annual Plan and Budget in the aggregate. Contractor may not exceed spending for any line item on the Summary Page by more than fifteen percent (15%) without the City's prior written approval or as otherwise provided herein. Until the Annual Plan and Budget is approved, Contractor must operate the Facility in accordance with the prior year's Annual Plan and Budget adjusted to account for changes in anticipated event activity/facility usage and inflation and known cost increases. The City shall ensure that sufficient Working Capital funds exist at all times to meet the operating needs of the Facility in light of the Mission Statement, the Operating Plan and the Pro Forma. 6.7 Quarterly Condition Survey. Unless waived by City, the parties shall conduct a quarterly inspection of the Facility to observe and note the condition of, cleanliness of, and existing damage to, the Facility and to determine whether funds on deposit in the Replacement Reserve Account will be applied at the Facility. Pursuant to Section 6.4, Contractor shall be responsible for repairing any problems or defects noted except those that are the City's responsibility pursuant to Section 5.3. 6.8 Additional Responsibilities of Contractor. Contractor shall in its own name perform the following additional services, or cause the same to be performed for the Facility: 6.8.1 determine and implement personnel policies and practices relating to the Facility, including policies and practices relating to terms and conditions of employment, screening, selection, training, compensation, employee benefits, discipline, dismissal and replacement; 6.8.2 recruit, hire, relocate, pay, supervise and dismiss all personnel providing services in the name of the Facility; Kitsap Conference Center Management Agreement 10 6.8.3 establish all relevant prices, price schedules, rates, rate schedules, rents, lease charges and concession charges for all areas of the Facility subject to City review as part of the annual budget process; 6.8.4 negotiate and administer, in the name and on behalf of the Facility, leases, licenses and concession agreements for all appropriate areas of the Facility; 6.8.5 except as otherwise provided in Section 5.3, manage the design, construction and installation of renovations, improvements, repairs or replacement of FF&E; 6.8.6 negotiate, enter into, and administer, in the name of Contractor, contracts, licenses and purchase orders for services, inventories, provisions, and supplies that are necessary for maintenance and operation of the Facility to the extent set forth in the Annual Plan and Budget, and to use the same in the management and operation of the Facility; 6.8.7 negotiate, enter into, and administer, in the name and on behalf of Contractor, contracts for the use of banquet and meeting areas within the Facility by groups and individuals; 6.8.8 apply for, and use commercially reasonable efforts to obtain in the name of the City or Contractor (as applicable) all licenses and permits including liquor licenses required of the City or Contractor in connection with the operation and management of the Facility, provided that the City agrees to execute and deliver any and all applications and other documents as shall be reasonably required and to otherwise cooperate with Contractor in applying for, obtaining and maintaining such licenses and permits; 6.8.9 use reasonable efforts to do, or cause to be done, all such acts and things in and about the Facility as shall be necessary to comply in all material respects with all Legal Requirements (as defined below); 6.8.10 collect all charges, rent and other amounts due from customers, tenants, licensees and concessionaires of the Facility and use those funds, together with funds from other sources that may be available to the Facility, first to pay all Operating Expenses and then any other financial obligations of the Facility as the City may reasonably direct; and 6.8.11 perform such other tasks as are customary and usual in the operation of a conference center of a class and standing equal to the Facility. 6.9 Accounting System & Operating Accounts. 6.9.1 IACC Standards. Contractor shall establish an accounting system for the Facility consistent with the most recent version of the International Association of Conference Centers Uniform Systems of Accounts for Conference Centers in consultation with the City to properly reflect all Gross Revenues and Operating Expenses of the Facility on an accrual basis in accordance with GAAP. 6.9.2 Operating Account. Contractor shall establish one or more Operating Accounts in the name of the Facility into which all Gross Revenues shall be deposited and from which all Operating Expenses, including amounts due Contractor, shall be paid. Contractor's designees shall be the only persons authorized to draw from the Operating Accounts. Contractor will deposit all funds into the Operating Account and pay all Operating Expenses and distributions as provided in this Agreement from the Operating Account. All signatories to this account (and any separate account) must be bonded for any amounts in the accounts. Kitsap Conference Center Management Agreement 11 Replacement Reserve Account. Contractor shall establish an account and deposit into the account an amount equal to three percent (3%) of Gross Revenues as a reserve fund to pay for replacements of all FF&E in the Facility (the "Replacement Reserve Account"). Expenditures from the Reserve Account shall be set forth in the Annual Plan and Budget and must meet the capitalized thresholds set forth in city asset policies or otherwise approved by the City. Except for Contractor is authorized to make expenditures for FF&E that require replacement due to unanticipated breakdowns or damage or Legal Requirements*subject to city approval. Annual reconciliation shall occur within 45 days of fiscal year end. Approval of the annual replacement plan shall be approved within 45 days after the reconciliation of the fund balance so Manager can expend authorized funds for actual replacements. 6.9.3 6.9.4 Compliance, Access & Audits. Contractor shall keep all books and records with respect to the Facility, including the Operating Accounts and the Capital Reserve Account, in accordance with GAAP as prescribed by the Financial Accounting Standards Board (FASB) and open for inspection and copying by the City or its representatives at any reasonable time. The City or its representatives may audit all of Contractor's books and records relating to the Facility and its operation each year, and may audit some or all of those books and records at any other reasonable time, upon not less than five days' prior written notice. The cost of any such audits shall be paid by the City unless the results of the audit reveal a discrepancy of five percent (5%) or more in Contractor's favor in the calculation of Gross Revenue and Operating Expenses, either individually or combined. In the case of such discrepancy, Contractor will pay the full cost of the audit and Contractor will promptly remit any funds owing under the audit calculations. All such books and records and patron information shall be the property of the City, provided that Contractor shall also own all patron information. 6.9.5 Per the Washington State Auditor, Contractor shall retain these records for inspection, audit, and copying for at least three (3) years from the date of completion or termination of this Agreement. Contractor shall, at all times, provide City with all records three (3) years old and older that relate to the financial matters of the facilities managed by Contractor under this Agreement. 6.10 Continuous Operation. During the term of this Agreement, Contractor shall continuously conduct the business of operating and promoting the use of the Facility for conferences and other approved uses in such a manner as to maximize Gross Revenues and fulfill the Mission Statement and goals prepared by Contractor and approved by City as long as the City is providing funding pursuant to Section 6.6. Contractor shall therefore provide all necessary support to operate the Facility for its intended purposes at all times. 6.11 Statements to City. Contractor shall provide monthly and annual financial statements to City along with operating statements reasonably detailing all Gross Revenues, Operating Expenses, and expenditures from the Reserve Fund, a comparison to the then-current Annual Plan and Budget on an item- by-item basis, and a marketing update. The statements and update will be provided within 20 calendar days after the end of the preceding calendar month. 6.12 Quarterly Remittance to City. To the Extent Net Income is positive in any calendar quarter (calculated on Operation Year-to-date basis), Contractor shall remit to the City Net Income resulting in excess amount above the required working capital within 25 days from the end of the calendar quarter the positive Net Income amount (within 25 days from the end of every calendar quarter, provided, however, that sufficient Working Capital shall remain in the Operating Accounts. Kitsap Conference Center Management Agreement 12 6.13 Compliance with Laws & City Regulations. Contractor shall comply with all applicable federal, state, and local laws, ordinances and regulations in the operation of the Facility, including those relating to environmental matters. Contractor must comply with all City rules and regulations, relating to the improvements at the Facility and its use, which are applied to all users on a nondiscriminatory basis, and excluding internal City requirements for bidding or hiring. Contractor shall comply with any future City resolutions relating to use of the Facility, which are applied to all users on a nondiscriminatory basis. If a future resolution requires Contractor to cancel a contract for an event at the Facility entered into by Contractor prior to the passage of the resolution, or such resolution makes it impracticable or financially unfeasible for Contractor to perform its duties hereunder, City will indemnify and hold Contractor harmless from all direct losses or direct damage resulting therefrom. 6.14 Institution of Legal Action. Contractor shall obtain City's written approval prior to commencing any legal action related to the Facility (except for any disputes between City and Contractor and collection matters in the ordinary course of business). 6.15 Security Services. Contractor shall be responsible for determining, and shall provide, all necessary security in the Primary Premises and for any events conducted by Contractor within the Additional Premises; provided, however, nothing in this paragraph shall make Contractor responsible for determining, or providing, general security in, on or about City's other properties. In the event of any major event that requires extra security outside the Facility, Contractor shall be responsible for coordinating with City Police or other law enforcement body having jurisdiction. 6.16 Emergency Procedures Plan. Contractor will consult with City and with emergency service providers having jurisdiction and devise, monitor and, if necessary, implement an Emergency Procedures Plan for the Facility that is acceptable to City. 6.17 Liens & Encumbrances. Contractor shall use commercially reasonable efforts to keep the Facility free and clear of any liens and encumbrances arising out of Contractor’s operation of the Facility. Contractor shall exercise reasonable care and judgment in resolving all claims and shall make reasonable settlement of claims. 6.18 Contractor's Proprietary Information. City acknowledges that Contractor has directly or indirectly created, invented, authored, produced and conceived certain proprietary information, processes and systems and that Contractor may utilize or cause to be utilized such proprietary information, processes and systems in its management and operation of the Facility (collectively, "Contractor's Proprietary Information"). Contractor's Proprietary Information shall include, without limitation, software, budgets, worksheets and sales and market plans or actions. The City may not access, use, copy, distribute, reproduce or allow access to or use of, Contractor's Proprietary Information except in conjunction with Contractor's services provided hereunder. The City acknowledges and agrees that (i) all right, title and interest in and to Contractor's Proprietary Information, and all copyrights, trademarks or other intellectual property or proprietary rights relating thereto are and shall remain with Contractor, and (ii) that, except as expressly provided in this Section, no right, title or interest in Contractors' Proprietary Information is granted under this Agreement. 7. Insurance. 7.1 Liability/Casualty Insurance. Contractor shall, at all times during the Term and at the City's sole cost and expense, to the extent specifically contemplated and permitted by the applicable Plan and Budget or otherwise authorized under Section 6.6, procure and maintain the following minimum coverages with commercial carriers reasonably acceptable to both the City and Contractor. Contractor Kitsap Conference Center Management Agreement 13 shall be the named insured, and the City shall be an additional insured, under the insurance policies obtained pursuant to this Sections 7.1.1; 7.1.2; 7.1.3; and 7.1.4.. All of the insurance policies obtained pursuant to this Section shall be primary and non-contributory to any insurance maintained by the City. 7.1.1 Commercial General Liability insurance on an occurrence basis against claims for personal injury (including bodily injury or death) and property damage occurring on, in or about the Facility, or any elevator therein or otherwise arising under this Agreement in an amount not less than $1,000,00 combined single limit for each occurrence and $2,000,000 annual aggregate. This insurance must include bodily injury and property damage liability, independent contractors' liability, contractual liability, products and completed operations liability, liquor liability, and personal and advertising injury liability, and may not include any exclusions for terrorism; 7.1.2 Commercial automobile liability insurance on an occurrence basis against claims for injury or death to persons or damage occurring in or about the Facility with minimum limits of liability of $1,000,000 combined single limit for each occurrence. Such insurance must include coverage for bodily injury liability, personal injury liability, property damage liability, and the operation of owned, hired and non-owned vehicles. 7.1.3 Employment practices liability insurance (with an extended reporting period not less than one (1) year in the event that the coverage is given in a "claims made" form) in an amount not less than $2,000,000 for each occurrence and without any exclusion for terrorism; 7.1.4 Excess or "umbrella" liability insurance no less broad than the underlying coverages on an occurrence basis providing excess coverage in a total amount not less than $15,000,000 in the annual aggregate; 7.1.5 Worker's compensation insurance as shall be required by and be in conformance with the laws of the State of Washington, including employers liability insurance with limits of not less than $1,000,000 for each accident and disease for all of Contractor's employees working with the Facility and $1,000,000 in the aggregate; Contractor will be the only named insured on this policy. 7.1.6 Professional liability insurance (with an extended reporting period not less than one (1) year in the event the coverage is given in a "claims made" form) for errors and omissions that may arise out of the negligent acts of Contractor while providing professional services as manager of the Facility. The minimum amount of this insurance must be $1,000,000 for each occurrence and may not include any exclusion for terrorism; Contractor will be the only named insured on this policy and 7.1.7 Such other insurance coverage, Employer Theft Insurance or employee dishonesty insurance with a limit not less than $2,000,000 per occurrence, reasonably requested by Contractor to insure against other insurance risks not covered under the above subsections that are commonly insured against by Contractor or owners of similar conference facilities. 7.2 Policies and Endorsements. All insurance policies furnished and maintained under this Section shall include a requirement that the insurer provide each party at least thirty (30) days written notice of any cancellation or material change in the terms and provision of the applicable policy. As soon as practicable prior to the effective date of the policies furnished and maintained hereunder, each party shall provide the other with certificates of insurance evidencing that the insurance requirements of this Agreement have been satisfied. Contractor and the City acknowledge and agree that the policies and limits described above shall be subject to adjustment by the parties from time to time during the Term to reflect changes in the insuring practices for facilities similar to the Facility and changes in insurance products. Kitsap Conference Center Management Agreement 14 7.3 Waiver of Subrogation. Each party shall request its respective insurance companies to waive subrogation against the other party and its Affiliates (as applicable) and their respective authorized representatives on account of any loss, damage, injury and all liability of every kind and nature arising from any risk generally insured against under any insurance policies carried by the parties or required to be carried by the parties under this Agreement. 8. Equal Opportunity. 8.1 Services. Contractor shall not discriminate against any person or persons because of race, sex, age, creed, color, physical disability, HIV infection, veteran's state, marital status, sexual orientation, national origin or any other basis made unlawful (whether on a national, state or local level) during the term of this Agreement in furnishing, or by refusing to furnish to any person the use of Contractor's services associated with the Facility. 8.2 Employment. Contractor shall conduct its business in a manner that assures fair, equal and nondiscriminatory treatment of all full or part -time employees. Contractor shall not discriminate against any full or part-time employee on the basis of race, sex, age, creed, color, physical disability, HIV infection, veteran's state, marital status, sexual orientation, national origin or any other basis made unlawful (whether on a national, state or local level) during the term of this Agreement. Contractor shall seek to hire and maintain a diverse work force. 9. Indemnification. 9.1 By the City. The City shall indemnify, defend and hold harmless Contractor and its Affiliates and their respective owners, officers, directors, employees and agents from any and all claims and liability (including reasonable attorneys' fees) arising or alleged to arise out of (i) the City's ownership or operation of the Facility, the Real Property or the surrounding development; (ii) a default by the City under this Agreement; or (iii) any violation of the Legal Requirements by the City or its employees, representatives or agents. For purposes of this Agreement, "Legal Requirements" means all laws, statutes, ordinances, regulations, codes, by-laws, orders, judgments, directives, rules, guidelines, orders or other requirements of any governmental or regulatory authority having jurisdiction over the City, the Facility, or the Real Property, including those related to employees, building, health, safety, environmental matters and the accessibility of public facilities to persons with disabilities. 9.2 By Contractor. Contractor shall indemnify, defend and hold harmless the City, its owners, officers, directors and employees, from and against any and all claims and liabilities (including reasonable attorneys' fees) arising or alleged to arise out of the negligent act or omission or willful misconduct of Contractor or its Affiliates or their respective owners, officers, directors, employees or agents. 9.3 Waiver of Industrial Immunity. TO THE EXTENT NECESSARY TO GIVE FULL EFFECT TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS SECTION 9, EACH PARTY HERETO HEREBY WAIVES ITS IMMUNITY WITH RESPECT TO THE OTHER PARTY UNDER THE INDUSTRIAL INSURANCE ACT (RCW TITLE 51) AND EACH PARTY EXPRESSLY AGREES TO ASSUME POTENTIAL LIABILITY FOR ACTIONS BROUGHT AGAINST THE OTHER PARTY BY THE WAIVING PARTY'S EMPLOYEES. THIS WAIVER HAS BEEN SPECIFICALLY NEGOTIATED BY THE PARTIES TO THIS AGREEMENT AND EACH PARTY HAS HAD THE Kitsap Conference Center Management Agreement 15 OPPORTUNITY TO, AND HAS BEEN ENCOURAGED TO, CONSULT WITH INDEPENDENT COUNSEL REGARDING THIS WAIVER. ________ City’s Initials ________ Contractor’s Initials 10. Representations and Warranties. 10.1 By the City. The City represents and warrants to Contractor as follows: 10.1.1 The City has, and throughout the Term will maintain, sole ownership of the Facility, including its contents, and Real Property, free and clear of any liens, charges or encumbrances of any kind. 10.1.2 There is no litigation or proceeding pending or threatened against the City or the Facility that could adversely affect the validity of this Agreement or the ability of the City to comply with its obligations under this Agreement. 10.1.3 Contractor may peaceably and quietly possess, manage and operate the Facility during the Term, subject to the conditions hereinafter 10.2 By Contractor. Contractor represents and warrants to the City as follows: 10.2.1 There is no litigation or proceeding pending, or to Contractor's knowledge, threatened against Contractor or that could adversely affect the validity of this Agreement or the ability of Contractor to comply with its obligations under this Agreement. 11. Mortgages. 11.1 The City shall have the right to encumber the assets that comprise the Facility and the Real Property, including the Facility building, FF&E and operating supplies used in connection with operation of the Facility, and to assign to any mortgagee as collateral security for any such loan, all of the City's right, title and interest in and to this Agreement, provided that the City (a) provides Contractor with a true and complete copy of any mortgage and related documents within thirty (30) days of the signing of such documents, (b) ensures that, so long as Contractor is not in material default under this Agreement beyond any applicable cure period, Contractor shall be able to enjoy, occupy and manage the Facility throughout the Term free from interference or ejection by the City, any mortgagee, any ground lessor or any other entity or individual claiming under, through or by right of the City, except as may be provided in this Agreement, and (c) ensures that all existing and future mortgages and lessors provide Contractor with non- disturbance protection in form and content reasonably satisfactory to Contractor, except as may be provided in this Agreement. 12. Casualty & Condemnation. 12.1 Casualty. If the Facility is damaged or destroyed by casualty and City determines it is not feasible to rebuild, City or Contractor may terminate this Agreement. If City elects to rebuild, then this Agreement shall continue in full force and effect. If the Facility is closed for longer than three months as the result of such casualty and City elects to rebuild the Facility, this Agreement and its obligations will be suspended until the Facility is re-opened or such other time as the parties agree. The parties may negotiate Kitsap Conference Center Management Agreement 16 an interim management agreement to cover the period of such suspension. 12.2 Condemnation. 12.2.1 Permanent Taking. Upon a taking of either a fee interest in, or a perpetual easement on, all or any portion of the Facility, if the part not taken may not be repaired, restored, replaced or rebuilt so as to constitute a conference facility as contemplated by the parties under this Agreement, then this Agreement shall terminate as of the date that is 90 days after the earlier of the date on which the relevant governmental authority (i) is entitled to possession or (ii) takes possession. Upon a taking of less than all of the Facility, and if this Agreement has not been terminated as permitted under this Section, this Agreement shall remain in full force and effect with respect to the remainder of the Facility and the awards or other proceeds on account of the taking shall not be included in the calculation of Gross Revenue for the Operating Year(s) in which received. The City shall promptly repair, restore, replace or rebuild the remainder of the Facility as nearly as possible to its value, condition, and character immediatel y prior to the taking and the costs of any such works shall not be deducted as an Operating Expense. Upon any taking, Contractor shall, in its sole discretion, be entitled to terminate this Agreement on 30 days' written notice to the City. 12.2.2 Temporary Taking. Upon a taking of all or any portion of the Facility for temporary use, this Agreement shall remain in full force and effect, and the award or other proceeds on account of the temporary taking shall not be included in the calculation of Gross Revenue f or the Operating Year(s) in which received. When and if, during the Term, the period of temporary taking ceases, the City shall make all such restoration, repairs and alterations as are necessary to restore the Facility to its condition prior to the taking. The City shall promptly repair, restore, replace or rebuild the remainder of the Facility as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such work shall not be deducted as an Operating Expense. Notwithstanding the foregoing, if a temporary taking occurs so that the Facility may not be operated in the manner contemplated by the parties under this Agreement and continues in effect for a period of longer than twelve (12) months, either the City or Contractor shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days' written notice to the other. 13. Names & Marks. The name of the Facility shall be ”Kitsap Conference Center at Bremerton Harborside” and the trademark associated with the Facility shall be as established by the City hereafter and neither may be changed without the consent of both parties. Contractor may identify itself as the manager of the Facility in connection with advertising and promotion of the Facility and Contractor with due recognition to City as the owner of the Facility. In the event the parties agree to change the name of the Facility, the City shall pay the costs associated with any name changes. 14. General Provisions. 14.1 Waiver. No express or implied waiver by either party of any event of default shall in any way be or be construed to be a waiver of any future or subsequent event of default. The written waiver by either party of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. 14.2 Construction as Covenants. Wherever in this Agreement it is provided that either party shall or will make any payment or perform or refrain from performing any act or obligation, each such Kitsap Conference Center Management Agreement 17 provision shall, even though not so expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as the case may be, such act or obligation. 14.3 Time of Performance. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. 14.4 Force Majeure. Performance of this Agreement by either party is subject to acts of God, government authority, disaster, strikes, civil disorders or other emergencies, any of which make it illegal or impossible to provide the facilities or services contemplated herein. 14.5 Partial Invalidity. Any provision of this Agreement which is held to be invalid, void or illegal by any court of competent jurisdiction shall in no way affect, impair or invalidate any other provision hereof. 14.6 Choice of Law; Venue. The laws of the State of Washington shall govern this Agreement and the legal relations of the parties without giving effect to conflicts of laws principles. The venue of any proceeding shall be Kitsap County, Washington. 14.7 Attorneys' Fees. In the event an action is commenced by either party to enforce any right or obligation hereunder, the substantially prevailing or successful party shall be entitled to reasonable attorneys' fees and court costs, including fees and costs incurred on appeal or review, or in any bankruptcy proceeding. 14.8 Entire Agreement; Modification. This Agreement, together with the Exhibits attached hereto, contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Agreement, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provision of this Agreement may be amended or waived except by an agreement in writing signed by the parties hereto or their respective successors in interest. This Agreement shall not be effective or binding upon any party until fully executed by both parties hereto. 14.9 Counterparts. This Agreement may be executed in counterparts, both of which shall form but one and the same contract. 14.10 Integration. This Agreement contains the entire agreement between City and Contractor and supersedes all prior written or oral discussions or agreements. 14.11 Non-Solicitation. During the Term and for two (2) years following expiration or earlier termination of this Agreement, the City shall not directly or in-directly or a company hired by the City shall not directly or indirectly, solicit for separate employment the services of, any personnel of Manager. Notwithstanding the foregoing, if this Agreement is terminated for any reason, neither the City or any company hired by the City or the Manager shall interfere in any way with the decision of any personnel who has been continuously working at the Property for two (2) years (“Property Employee”), prior to the date of termination to either continue employment with the Manager or seek employment with the City or a company hired by the City. To allow any Property Employee to decide whether to continue as an employee of Manager or seek employment with the City or a company hired by the City, neither the Manager nor the City or a company hired by the City shall (a) offer any pay increase or other incentives to any Property Employee, (b) create a new position for any Property Employee, or (c) make disparaging remarks about the other party. 14.11.1 Contractor and City may amend this Agreement at any time only by written Kitsap Conference Center Management Agreement 18 amendment executed by Contractor and City. 14.11.2 Contractor and City agree that this Agreement shall be amended at any time if, in the opinion of bond counsel to City, such amendment is necessary to preserve the tax exempt status of interest on obligations of City issued to finance the Conference Center. If Contractor finds s uch amendments unreasonable, Contractor may terminate this agreement upon ninety (90) days written notice. 14.12 Authority. Each individual executing this Agreement on behalf of each party represents and warrants that he or she is duly authorized to execute and deliver this Agreement. 14.13 Notices. Except as otherwise provided in this Agreement, all notices, demands, request, consents, approvals and other communications (herein collectively called "Notices") required or permitted to be given hereunder, or which are to be given with respect to this Agreement, shall be in writing sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the party to be so notified at the addresses set forth below or transmittal by facsimile. If to Contractor: If to City: Columbia Hospitality, Inc. City of Bremerton 2200 Alaskan Way, Suite 200 345 6th Street, Suite 600 Seattle, WA 98121 Bremerton, WA 98337 Attention: Attention: John Oppenheimer Director of Financial Services Tel: (206) 239-1800 Tel: (360) 473-5296 Fax: (206) 239-1801 Fax: (360) 473-5200 With a copy to: Foster Garvey PC 1111 3rd Avenue, STE 3000 Seattle, WA 98101 Attention: Gregory J. Duff Tel: (206) 447-4400 Fax: (206) 464-0125 Any notice shall be deemed delivered upon receipt or three (3) days after the mailing thereof. Either party may at any time change the addresses for notices to such party by mailing a notice as aforesaid. 14.14 Use of Affiliates. The City acknowledges and agrees that Contractor may from time to time purchase goods, supplies and services from or through Contractor and its Affiliates. If an Affiliate performs services Contractor is required to provide under this Agreement, Contractor shall be ultimately responsible to the City for Contractor's Affiliate's performance. For purposes of this Agreement, "Affiliates" means any entity directly or indirectly controlled by, controlling or under common control with Contractor. 14.15 Remedies Cumulative and Non-Exclusive. The parties' rights and remedies set forth in this Agreement are in addition to all other rights and remedies available at law or in equity, including without limitation specific performance and temporary and permanent injunctive relief Kitsap Conference Center Management Agreement 19 14.16 Confidentiality. For a period of five (5) years after disclosure, neither party will use the other party's confidential information other than in furtherance of this Agreement, nor will it disclose the other's confidential information except (i) to obtain advice from legal or financial consultants (who will themselves treat the information as confidential) or (ii) when compelled to do so under public record and disclosure laws, in which case the disclosing party will give the other party as much notice as is possible before releasing any confidential information so the requested disclosure can be contested and will cooperate with the contest. "Confidential Information" shall mean information marked as confidential or which, under the circumstances surrounding disclosure, b ought in good faith be treated as confidential, including, without limitation, all information concerning Conference Center contracts and accounts, and Contractor's Proprietary Information. Confidential Information shall not include information that the recipient developed independently, or information that is or subsequently becomes readily publicly available, in both cases other than by a breach of an obligation of confidentiality. 14.17 Assignment. Contractor shall not either voluntarily or by operation of law assign, transfer, mortgage, pledge, hypothecate, or encumber this Agreement or any interest therein and shall not subcontract the obligations under this Agreement, or any part thereof, or allow any person (employees, agents, servants, and invitees of Contractor excepted) to use the Conference Center, or any portion thereof, without the prior written consent of City, which consent shall not be unreasonably withheld. Any such assignment, subcontracting or use without compliance with the terms of this paragraph shall be void and shall constitute a default under the terms of this Agreement. If Contractor is a corporation, any transfer of this Agreement from Contractor by merger, consolidation, or liquidation, or any change in the ownership or power to vote in a majority of the outstanding voting stock of Contractor shall constitute an assignment for purposes of this paragraph. Any consent to one assignment, subcontracting, or use by any other person shall not be deemed to be a consent to any subsequent assignment, subcontracting, or use by another person. Consent to any such assignment, subcontracting or use shall in no way relieve Contractor of any liability under this Agreement. 14.18 Subcontracting. Contractor shall not subcontract its work under this Agreement, in whole or in part, without the written approval of City. City reserves the right to review and approve any subcontracts prior to execution to ensure compliance with the provisions of this Agreement. Contractor shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all terms and conditions as specified in this Agreement. Notwithstanding City approval of a subcontractor, Contractor shall remain obligated for full performance hereunder, and City shall incur no obligation other than its obligations to Contractor hereunder. Any subcontracts approved by City shall be subject to and shall not extend any rights granted beyond those set forth in this Agreement to Contractor. Contractor agrees that if subcontractors are employed in the performance of this Agreement, Contractor and its subcontractors are subject to the requirements of the State of Washington, Workers' Compensation Laws. Kitsap Conference Center Management Agreement 20 This Agreement is executed in duplicate originals dated as of the day and year first set forth above. CITY: City of Bremerton By: ____________________ Greg Wheeler, Mayor CONTRACTOR: Columbia Hospitality, Inc. By: ____________________ Its: ____________________ EXHIBIT A 21 EXHIBIT A: LEGAL DESCRIPTION *****EXCEPT FOR BUILDING ONLY CONSTRUCTED ON BOARDWALK TO 242401-2-011- 2002*****PARCEL 1)>>THAT PTN OF GOVT LOT 3 SEC 13 & LOT 1 SEC 24 & TDLDS FRTG CNVYD BY VOL 326/249 DAF, ALL OF SD LOTS LY BTW BLK 2 TOWN OF BREMERTON & MEA LN EXC SLY 60FT & ALSO TDLDS FRTG DAF, LY BTW NLY BDRY FRONT ST & NLY BDRY 2ND ST EXT IN CITY EXC SLY 60FT M/L INCL 14FT VAC ALLEY EXC 129FT STRIP TO E BJORK PER VOL 972/139; TOGETHER WITH THAT PORTION OF VACATED 2ND STREET IN THE PLAT OF THE TOWN OF BREMERTON PER ORDINANCE 4847, AS DESCRIBED UNDER AUDITOR'S FILE NO. 200303170013, RECORDS OF KITSAP COUNTY, WASHINGTON.** BLDG VALUE CARRIED ON ACCT NO 242401-2-008-2007** PARCEL 2)>>THAT PTN OF GOVT LOT 1 & TDLDS FRTG CNVYD BY VOL 449/114 DAF, BEG S45*20'30E 14.18FT FR SE COR LOT 1 BLK 2 TOWN OF BREMERTON TH N35*37'10E 60FT TH S45* 20'30E 163.43FT TO TPOB TH S45*20'30E 45FT TH S41*53'20W 59.39FT M/L TO NELY LN FRONT ST TH NWLY ALG NELY LN FRONT ST 45FT TH N41*53'20E 59.39FT M/L TO TPOB; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET THAT ATTACHES BY OPERATION OF LAW, AS VACATED BY ORDINANCE NO. 4691, RECORDED UNDER AUDITOR'S FILE NO. 3232826, DATED JANUARY 20, 2000. PARCEL 3)>> THAT PORTION OF GOVERNMENT LOT 1, OF SECTION 24, TOWNSHIP 24 NORTH, RANGE 1 EAST, DESCRIBED AS FOLLOWS: BEGINNING ON THE NORTHEASTERLY SIDE OF 1ST STREET, 14.18 FEET SOUTH- EASTERLY OF THE MOST SOUTHWESTERLY CORNER OF LOT 1, BLOCK 2 PLAT OF TOWN OF BREMERTON; THENCE ANGLE TO THE LEFT 99* 2'20 60 FEET; THENCE ANGLE TO THE RIGHT 99*2'20 34.02 FEET; THENCE ANGLE TO THE RIGHT 90*49'30 59.35 FEET TO THE NORTH- EASTERLY LINE OF 1ST STREET; THENCE ANGLE TO THE RIGHT 89* 10'30 ALONG 1ST STREET 23.69 FEET TO THE BEGINNING. TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET THAT ATTACHES BY OPERATION OF LAW, AS VACATED BY ORDINANCE NO. 4691, RECORDED UNDER AUDITOR'S FILE NO. 3232826, DATED JANUARY 20, 2000. PARCEL 4)>> LOTS 8 AND 9, BLOCK 2, TOWN OF BREMERTON, VOLUME 2 OF PLATS, PAGE 30, RECORDS OF KITSAP COUNTY, WASHINGTON, TOGETHER WITH PORTION OF VACATED ALLEY ADJOINING. ALSO TOGETHER WITH THAT PORTION OF VACATED 2ND STREET IN THE PLAT OF THE TOWN OF BREMERTON PER ORDINANCE 4847, AS DESCRIBED UNDER AUDITOR'S FILE NO. 200303170013, RECORDS OF KITSAP COUNTY, WASHINGTON.>>>EXCEPT THAT PORTION CONVEYED TO THE STATE OF WASHINGTON, UNDER AUDITOR'S FILE NO. 200612110096, RECORDS OF KITSAP COUNTY, WASHINGTON. EXHIBIT B 22 Exhibit B: Centralized Services Centralized Services • Accounting - $3,916 per month / $46,992 annually • People and Culture (Human Resources) - $2,253 per month / $27,036 annually • Marketing - $700 per month / $8,400 annually • Public Relations/Social Media - $500 per month / $6,000 annually Beginning January 1, 2021, the above amounts will increase no more than four percent (4%) per year and will be included as part of the Annual Plan and Budget. EXHIBIT C 23 Exhibit C: Asset Inventory Kitsap Conference Center Inventory for Capital Reserve for Replacement Plan Asset ID Acquire Date Location Description of Item or Work Supplier Name 3/19/2019 Trays, serving utensils, buffet décor WASSERSTROM 3/19/2019 Trays, serving utensils, buffet décor WASSERSTROM 3/19/2019 Trays, serving utensils, buffet décor WASSERSTROM 3/19/2019 Trays, serving utensils, buffet décor WASSERSTROM 5/8/2019 Future of KCC design scope Coates Design, Inc. 5/31/2019 150 White Resin Wedding Chairs Mity-Lite, Inc. 6/30/2019 Table Skirts & Linens Gourmet Table Skirts & Linens 6/30/2019 Cocktail Tables & Amp Mity-Lite, Inc. 7/23/2019 Large vacuum, backpack vacuum HD Supply Facilities Maintenance LTD 7/23/2019 6 & 8 foot table replacement Mity-Lite, Inc. 8/13/2019 Trays, serving utensils, buffet décor WASSERSTROM 8/13/2019 Trays, serving utensils, buffet décor WASSERSTROM 8/13/2019 Trays, serving utensils, buffet décor WASSERSTROM 8/13/2019 Trays, serving utensils, buffet décor WASSERSTROM 8/13/2019 Trays, serving utensils, buffet décor WASSERSTROM 3/13/2018 Poynt Credit Card Terminals SURV 10/31/2018 Cocktail Tables Wasserstrom 12/27/2018 Cocktail Table Extension Poles Wasserstrom 3/14/2017 (2) Apple iPad Air 2 Amazon 3/20/2017 Roller Shades for Fountain Room Beard's Window Coverings 3/27/2017 AV boxes POSH SPEAKER SYSTEMS 5/8/2017 HDMI cable and extender POSH SPEAKER SYSTEMS 7/31/2017 Office Chairs Staples 8/10/2017 Large Venue Projector Visual Apex, Inc. EXHIBIT C 24 Asset ID Acquire Date Location Description of Item or Work Supplier Name 11/8/2017 Event Planning Software EventPro 2/27/2017 9 DZ Cups & Saucers Wasserstrom 2/28/2017 3gal Coffee Urns Starbucks 2/28/2017 gal Coffee Pots Starbucks 6/20/2017 (1) CRTG ECO-IX14 PKDSGL Ecolab 6/20/2017 (1) CRTG ECO-TO10 PKDSGL, (1) CRTG ECO- TO14S PKDSGL, (2) HEAD ECO SGL SMF 6 Ecolab 3/27/2017 Credit for Cups/Saucers Wasserstrom 10/31/2017 Credit for Wasserstrom Duplicate Pmt Wasserstrom 11/30/2016 Podium ESKP Bestlecterns.com 1/31/2016 Server Upgrade nGenX Corporation 1/31/2016 Projector Visual Apex, Inc. 1/31/2016 IT Equipment KITSAP NETWORKING SERVICES 3/31/2016 IT Equipment Amazon 12/31/2016 LED Lighting System CCI Solutions 2/22/2016 F&B EQUIP. ENHANCEMENT WASSERSTROM 5/17/2016 Sensor XP Vacuum Cleaner WINDSOR 5/25/2016 Brochure re-design ELSCHWARTZO DESIGN LLC 6/13/2016 Wedding Chairs Mity-Lite, Inc. 6/13/2016 Risers, Beverage Dispensers, Shelves WASSERSTROM 6/13/2016 Risers, Beverage Dispensers, Shelves WASSERSTROM 6/13/2016 Risers, Beverage Dispensers, Shelves WASSERSTROM 7/18/2016 IT Enhancements Dell 9/20/2016 Brochures PrintWest, Inc. 10/10/2016 Butane Stove WASSERSTROM 10/10/2016 Risers, Beverage Dispensers, Shelves WASSERSTROM 10/24/2016 Risers, Beverage Dispensers WASSERSTROM 12/13/2016 Glasswear, Coffee Grinder, Trash Can Dolly WASSERSTROM EXHIBIT C 25 Asset ID Acquire Date Location Description of Item or Work Supplier Name 12/20/2016 Glasswear, Coffee Grinder, Trash Can Dolly WASSERSTROM 12/20/2016 Glasswear WASSERSTROM 12/28/2016 Cups/Saucers WASSERSTROM 12/28/2016 Carpet for Reception Offices, Public Space Great Floors LLC 12/31/2016 Carpet for Area 1, Area 4 Great Floors LLC 2/17/2015 Dance Floor Inc. Use Tax Arne Baker 12/31/2015 SERVER UPGRADE KITSAP NETWORKING SERVICES 12/31/2015 Firewall & Computer Upgrade ARNE BAKKER 4/1/2015 Racks Wasserstrom 4/1/2015 Glassware Wasserstrom 4/1/2015 Kitchen Equipment Wasserstrom 4/1/2015 AMV Internet Marketing 4/30/2015 KITSAP NETWORKING SERVICES 5/31/2015 SAFEGUARD BUSINESS SYSTEMS, INC. 8/17/2015 ERICKSON COMMERCIAL REFRIGERATION 11/30/2015 WASSERSTROM 11/30/2015 ARNE BAKKER 11/30/2015 WASSERSTROM 4/11/2014 Office 2013 Buycheapsoftware.com 4/11/2014 Office Pro 2013 Buycheapsoftware.com 4/21/2014 Computers, Software, Equipment DELL BUSINESS CREDIT 4/30/2014 Silverware WASSERSTROM 4/30/2014 Glassware, Dishes, Silverware WASSERSTROM 4/30/2014 Glassware, Dishes, Silverware WASSERSTROM 4/30/2014 Glassware, Dishes, Silverware WASSERSTROM 4/30/2014 Glassware, Dishes, Silverware WASSERSTROM 4/30/2014 Coffee Mugs SAFEGUARD BUSINESS SYSTEMS, INC. 4/30/2014 Glassware, Dishes, Silverware WASSERSTROM 4/30/2014 Utility Cart, Mop/Mop Bucket, Broom WASSERSTROM EXHIBIT C 26 Asset ID Acquire Date Location Description of Item or Work Supplier Name 4/30/2014 Utility Cart WASSERSTROM 4/30/2014 Glassware WASSERSTROM 4/30/2014 Glassware WASSERSTROM 4/30/2014 Glassware WASSERSTROM 5/23/2014 Glassware, Dishes, Silverware WASSERSTROM 03223 6/18/2014 Tilting Skillet SMITH & GREENE 8/31/2014 RC Capital Purchases 2012 Reclass 8/31/2014 RC Capital Purchases 2012 Reclass 8/31/2014 RC Capital Purchases 2012 Reclass 4/30/2013 Computers CDW Direct 5/15/2013 Vacuum Cleaners and Carpet Shampoo WINSOR 5/15/2013 Vacuum Cleaners and Carpet Shampoo WINSOR 8/31/2013 Software upgrade EventPro 9/30/2013 Glassware Bargreen Ellingson 9/30/2013 Glassware Bargreen Ellingson 9/30/2013 Coffee mugs SAFEGUARD BUSINESS SYSTEMS, INC. 3/22/2012 Website Redesign 50% deposit AMV Internet Marketing 4/30/2012 Table Skirts Bargreen Ellingsom 6/20/2012 Photography THOMAS M. BARWICK INC. 8/22/2012 Website redesign 40% deployment AMV Internet Marketing 9/19/2012 Deposit Chair Order 50% Gasser Chair Company, Inc. 9/19/2012 Final payment website AMV Internet Marketing 10/17/2012 Final payment chairs Gasser Chair Company, Inc. Kitsap Conference Center HarborsidConference Center Management Agreement Proposal SummaryProposedDescription CHI Proposal CHI Proposal Negotiated Proposal CHIBase Management Fee $7500 per month 90,000 $7500 per month 90,000Incentive Management Fee 1.5% of Gross Operating Revenue 112,500 1.5% of Gross Operating Revenue 112,500*lowest responsive offerTotal Cost of Management 202,500 202,500Reserve Fund Set Aside 3.0% of Gross Revenue 3.0% of Gross RevenueReserve Fund Annual Reconciliation Not includedRequired for annual authorization of replacement reserve plan"Non‐Solicitation" Existing staff can not be retained Rules of Engagement for staff retentionAlternative Space Undefined Defined and associated with appropriate fundAsset Inventory Not required Required and included as an Exhibit CCentralized Service Not defined Defined and added to Exhibit D P.O. Box 990, Bremerton, WA 98337 • (360) 662-2000 • (800) 422-5852 • kitsapcu.org July 2, 2019 Mayor Greg Wheeler Norm Dicks Building – City of Bremerton Bremerton, WA 98337 RE: Letter of Support for Columbia Hospitality and Kitsap Conference Center Mayor Wheeler: I am writing to show my support for Columbia Hospitality and their bid for continued operations of our wonderful Kitsap Conference Center. I believe the continuity of world-class service from Columbia Hospitality will greatly benefit our community and I am writing to express my full support. Kitsap Credit Union has worked closely with Columbia Hospitality since they started operations and will continue to support them through our staff collaboration, resources, and financial commitment (through utilization of the space). In fact, we hosted our corporate mid-year meeting across the street just a few weeks ago! It is also noteworthy the added impact the Columbia Hospitality team plays on the greater Bremerton community. One of their team sits on the board of the Downtown Bremerton Association, another volunteers her time with Bremerton Green Drinks, another sits as the President of the Board for Visit Kitsap. Most noteworthy is the key role the entire team played in helping to organize and execute a brand new Bremerton Tourism Council within the last year. As you can see, the loss of Columbia Hospitality to the Bremerton community would be felt extensively throughout. I look forward to working with Columbia Hospitality at the Kitsap Conference Center for many years to come, and I hope that you strongly consider them in your upcoming RFP process. Sincerely, John Morrissey Kitsap Credit Union & Downtown Bremerton Association �BREMERTON \.] / chombe, of commerce .. . Helping businesses achieve success since 1907 2019 Board of Directors Jack Edwards, Chairman Days Inn-Part Orchard Tom Brobst, Chairman-Elect Puget Sound Energy David Emmons, Vice-Chairman Olympic College Foundation Clarke Whitney, Treasurer Clarke Whitney, CPA, Inc. Leah Olson, Secretary Kitsap Credit Union Katrina Fulkerson Kitsap Tennis & Athletic Center Jennifer Gelsleichter Kitsap Bank Linda Hupka Bremerton Unified School District Tiana Kleinhoff Bradley Scott Commercial Real Estate Jay Mills Port Gamble Enterprises Joe Roszak Kitsap Mental Health Services Betty Skinner Allstate Insurance Jeremy Stitt Sound West Group Chris Tibbs ARC of the Peninsulas Matt Wheelus CHI Franciscan Denise Frey, CEO, Ex-Officio Bremerton Chamber of Commerce 286 Fourth Street Bremerton, WA 98337 Office (360)479.3579 Fax (360)479.1033 www.bremertonchamber.org staff@bremertonchamber.org June 28, 2019 Mayor Greg Wheeler City of Bremerton Norm Dicks Building 345 61h Street, Suite 600 Bremerton, WA 98337 Dear Mayor Wheeler, As you know, the Bremerton Chamber of Commerce has been working to support and promote local businesses since 1907. The Chamber also operates as Bremerton's Visitor Center which is a role of many local Chambers of Commerce in support of local tourism as a local industry. The Bremerton Chamber of Commerce feels very fortunate to have the Kitsap Conference Center located here in Bremerton. The increasing business tourism the Kitsap Conference Center has been attracting generates an important income stream for local businesses, particularly those in the tourism and hospitality industry. I am certain that the strategic management of the Conference Center under the leadership of Lori Main and her team at Columbia Hospitality will continue to develop Bremerton's identity and impact as a business destination. Since becoming President and CEO of the Bremerton Chamber of Commerce last year, I have had the opportunity to work closely with Lori Main and her team. They have all been wonderful to work with and I've appreciated their professional expertise on which I've grown to depend. The Columbia Hospitality team are also actively involved in our community. I know that Lori is active with the Bremerton Rotary and her staff are involved with the Downtown Bremerton Association. They are obviously investing themselves personally in our community, something that only a local sourced company like Columbia Hospitality can do. The Bremerton Chamber of Commerce considers the staff of Columbia Hospitality to be valuable partners in the support and promotion of local business. For the above reasons, the Bremerton Chamber of Commerce supports Columbia Hospitality as the Management Company of the Kitsap Conference Center for the City of Bremerton. Best regards, Denise Frey President and CEO July 10, 2019 Mayor Greg Wheeler Norm Dicks Building - City of Bremerton 345 6th Street, Suite 600 Bremerton, WA 98337 Dear Mayor Wheeler: I am writing to express my support and appreciation for Columbia Hospitality and their exceptional management of the Kitsap Conference Center. I have worked with them for the last several years and could not be more pleased with our experiences. As you know, Leadership Tomorrow brings our class of 80 regional leaders (some from Kitsap County!) to Bremerton for our Fall Retreat in September. We often return in February for our Mid-year Retreat. Our contract includes multiple days, several changes in room set-up, complicated menu/dietary requests, and AV needs. I can’t say enough about the incredible staff that we encounter. From the initial contact and booking the request, to room set up, to the folks who prepare and serve the meals – absolutely everyone we work with is friendly, responsive, accommodating and professional. I’m including a letter that we wrote to the staff last March in appreciation for their incredible support and responsiveness to our needs. Leadership Tomorrow holds events all around Puget Sound. Columbia Hospitality is a special organization comprised of remarkable individuals in every position. I hope you will continue to choose their services to manage the Kitsap Conference Center. Warmly, Sue Bennett, LT’94 Executive Director July 19, 2019 Mayor Greg Wheeler Norm Dicks Building - City of Bremerton 345 6th Street, Suite 100 Bremerton, WA 98337 Dear Mayor Wheeler: I have had the pleasure of working with the Columbia Hospitality staff at the Kitsap Conference Center in various capacities over the years: As a local non-profit director who hosted large events at the facility, as a community member who has attended numerous events at the facility, and most recently as the President of Bremerton Rotary who meets weekly at the Conference Center. My experience with Columbia Hospitality has been consistently positive. The staff are well- trained and friendly, and the customer service is exceptional. Lori Main is very responsive, personable and accommodating. It has been a huge relief to me as Rotary President to know that I can count on Lori to work with me – even last minute – when we have changes we need to make to our weekly luncheon, and I always know she and the staff will follow through – every time. I’m sharing this feedback as an individual and not representing my Rotary Club or my current or past employers. However, I am confident if you asked others in the Club or my colleagues, you’d likely get the same response! Sincerely, Karen McKay Bevers 206-718-36661 (personal cell) klmckaybevers@gmail.com (personal email) Director of Communications & Community Engagement Bremerton School District 2018-19 Bremerton Rotary President Former Director of American Red Cross – West Sound C c: Melinda Monroe, Lori Main AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Management Agreement with Columbia Hospitality, Inc. for the Gold Mountain Golf Club COUNCIL MEETING Date: December 18, 2019 Department: Parks and Recreation Presenter: Jeff Elevado Phone: (360) 473-5428 SUMMARY: The current Golf Course Management Agreement for Gold Mountain Golf Club will expire on December 31, 2019. A Request for Proposals was issued on June 4, 2019. Three proposals were received. A Proposal Review Committee was formed and reviewed and evaluated the proposals, conducted interviews and performed other due diligence. The Committee recommended retaining Columbia Hospitality, Inc. and entered into contract negotiations for management of Gold Mountain Golf Club. ATTACHMENTS: 1) Golf Course Management Agreement 2) Agreement Proposal Summary 3) Letters of support FISCAL IMPACTS (Include Budgeted Amount): Included in the Budget for 2020 - $3,334,637 STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the agreement with Columbia Hospitality, Inc. for the management of Gold Mountain Golf Club; 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 A16 Gold Mountain Golf Club Management Agreement 1 GOLF COURSE MANAGEMENT AGREEMENT Gold Mountain Golf Club This Golf Course Management Agreement (“Agreement”) is entered into on the date fully executed below by and between the City of Bremerton, a Washington municipal corporation (“Owner”), and Columbia Hospitality, Inc., a Washington corporation (“Manager”) or its permitted assignee. RECITALS A. Owner is the owner of certain real property and the buildings, facilities and other improvements located thereon, which collectively are commonly known as the Gold Mountain Golf Club and located at 7263 W. Belfair Valley Road, Bremerton, Washington (the “Club Facilities”). The Club Facilities are situated on a portion of the following sections W1/2 Section 1, T23N, R1W NE1/4 NE1/4 Section 2, T23N, R1W SE1/4 SE1/4 Section 35, T24N, R1W SW1/4 Section 36, T24N, R1W and are more particularly delineated on the aerial photo-map attached as Exhibit A. B. As of the Effective Date, the Club Facilities consist of (i) two 18-hole golf courses; (ii) driving range and practice and putting greens; (iii) a golf pro shop, including a retail store; (iv) a full service restaurant and bar, including meeting and event space; and (v) various buildings and related facilities used for storage of maintenance and related golf course equipment, golf carts and other golf- course related supplies. C. Manager is knowledgeable and experienced in the management and operation of resort facilities similar to the Club Facilities. D. Owner wishes to engage Manager to promote, operate and manage the Club Facilities, and Manager is willing to provide such services pursuant to the terms and conditions set forth below. AGREEMENTS NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, Owner and Manager agree as follows: ARTICLE I INTERPRETATION 1.01 Definitions All initially capitalized terms used and not otherwise defined in this Agreement shall have the meanings set forth below. Gold Mountain Golf Club Management Agreement 2 “Affiliate” means any other individual, corporation, partnership, limited liability company or other entity directly or indirectly controlling, controlled by, or under common control with Manager or Owner, as applicable. “Annual Plan and Budget” has the meaning set forth in Section 5.04. “Annual Statements” has the meaning set forth in Section 5.02. “Applicable Laws” means all laws, statutes, ordinances, regulations, codes, bylaws, orders, judgments, directives, rules, guidelines, orders and other requirements of any governmental or regulatory authority having jurisdiction over Owner and the Club Facilities including Environmental Laws and those laws, statutes, codes, rules and other requirements related to employees, health and safety and the accessibility of public facilities to persons with disabilities. “Base Management Fee” has the meaning set forth in Section 4.01. “Improvement” means a replacement, renewal or addition to FF&E or an alteration, improvement or replacement to the structural, mechanical, electrical, heating, ventilation, air conditioning, exterior, plumbing or vertical transportation elements of the Club Facilities, the cost of which is capitalized pursuant to GAAP. “Centralized Services” means accounting. human resources training and development, public relations, employee relations, payroll processing, information technology and other related services as provided in accordance with Section 2.04. “Centralized Service Fees” has the meaning set forth in Section 4.04. “Club Facilities” has the meaning set forth in Recital A. “Confidential Information” means (a) the terms of this Agreement, (b) all information that one party receives from the other party relating to the disclosing party's business and that is designated in writing as confidential by the disclosing party and (c) Manager’s Intellectual Property. Notwithstanding the foregoing, the following information is not Confidential Information: information that (i) comes into the public domain through no fault of the receiving party; (ii) was lawfully disclosed to the receiving party by a third party; (iii) was disclosed by the receiving party with the disclosing party's written consent; (iv) was independently developed by the receiving party; or (v) was rightfully known by the receiving party prior to entering into this Agreement. “Environmental Laws” has the meaning set forth in Section 11.01. “Event of Default” has the meaning set forth in Section 3.02. “FF&E” means furniture, fixtures and equipment. “Force Majeure” means acts of God, acts of war, civil disturbance, governmental action (including the revocation or refusal to grant licenses or permits, where such revocation or refusal is not due to the fault of the party whose performance is to be excused for reasons of Force Majeure), strikes, lockouts, fire, unavoidable casualties, performance of approved Capital Improvements that have an adverse effect on income generating areas of the Club Facilities, or any other causes beyond the reasonable control of the party claiming such event occurred (excluding, however, (a) lack of financing, (b) financial condition or (c) general economic and/or market factors)). Gold Mountain Golf Club Management Agreement 3 “GAAP” means accounting principles generally accepted in the United States. “Gross Operating Profit” means the amount by which Gross Revenue for the applicable period exceeds Operating Expenses for that same period. “Gross Revenue” means all revenues, receipts, income and sale proceeds of every kind derived directly or indirectly from the Club Facilities as determined in accordance with GAAP. Gross Revenue shall include, but not be limited to, greens fees; cart fees (motorized and pull cart); club rentals; pro shop sales; income from the rental of meeting and event space or other facilities or services; license, lease and concession fees and rentals paid for any commercial, retail and other space in the Club Facilities (not including gross receipts of licensees, lessees and concessionaires); income from golf lessons and instruction; income from parking, and food and beverage sales provided by the Club Facilities; in and from both on and off-site locations; wholesale and retail sales of the Club Facilities’ merchandise; and service charges. Notwithstanding the foregoing, Gross Revenue from the Club Facilities shall not include the following: gratuities to the Club Facilities’ employees; federal, state or municipal excise, sales or use taxes or any other taxes collected directly from patrons, guests or customers or included as part of the sales price of any goods or services; proceeds from the sale of FF&E (which shall be deposited into the Capital Reserve Account); interest received or accrued with respect to the funds in the Operating Account(s) and Capital Reserve Account; any refunds, rebates, discounts and credits of a similar nature, given, paid or returned in the course of obtaining Gross Revenues or components thereof; insurance proceeds; condemnation proceeds; or any proceeds from any transfer of the Club Facilities. “Hazardous Materials” has the meaning set forth in Section 11.01. “Incentive Management Fee” has the meaning set forth in Section 4.02. “Initial Working Capital Deposit” has the meaning set forth in Section 5.07. “Manager” means Columbia Hospitality, Inc. or its permitted assigns. “Manager’s Intellectual Property” has the meaning set forth in Section 12.04. “Manager’s Trademarks” has the meaning set forth in Section 12.01. “Monthly Statement” has the meaning set forth in Section 5.01. “Net Operating Income” means the amount by which Gross Operating Profit for the applicable period exceeds (i) the Base Management Fee, (ii) insurance costs and expenses for the insurance coverages required under Article VII together with any associated deductibles, and (iii) real estate and personal property taxes, if any, for that same period. “Net Income” means the Net Operating Income, minus (i) the Incentive Management Fee, (ii) the deposits to the reserve for replacement account equal to 4% of Gross Revenue. “Operating Account(s)” has the meaning set forth in Section 5.03. “Operating Expenses” means all ordinary and necessary expenses, including, without limitation, Reimbursable Expenses, incurred in the operation of the Club Facilities, including without limitation, salaries, wages and benefits of the Club Facilities’ personnel, utilities, administrative expenses, centralized service fees, and advertising and marketing expenses, all as determined in accordance with GAAP, but excluding (a) real estate and personal property taxes; (b) the Base Management Fee, (c) the Incentive Management Fee; (d) payments pursuant to equipment leases or other forms of FF&E Gold Mountain Golf Club Management Agreement 4 financing; (e) insurance costs and expenses for property and liability coverages required under Article VII together with associated deductibles; (f) amounts expended on Capital Improvements, including, without limitation any funding into or expenditures from the Capital Reserve Account; (g) depreciation and amortization expenses; and (h) costs and expenses of Owner or Owner’s personnel. “Operating Standard” means the manner in which the Club Facilities are operated, which shall be consistent with the standards and practices maintained at the hotels and other facilities currently operated by Manager. “Operating Year” means each 12-month calendar year period, provided that the first Operating Year shall be the partial year beginning on the Commencement Date and ending on the following December 31st and, if this Agreement is terminated on a date other than December 31st, the partial year ending on the date of termination. “Owner” means the City of Bremerton, a Washington municipal corporation. “Reimbursable Expenses” means all costs and expenses advanced by Manager or its Affiliates on Owner’s account or for or on behalf of Owner in the ordinary course of providing services under this Agreement. “Replacement Reserve Account” has the meaning set forth in Section 6.02(a). "Target Fund Balance" as approved by the City Council action. 1.02 Captions, Numbering and Headings Captions, numbering and headings of Articles, Sections and Exhibits in this Agreement are for convenience of reference only and shall not be considered in the interpretation of this Agreement. References in this Agreement to Articles, Sections and Exhibits shall be deemed to be references to such Articles, Sections and Exhibits in this Agreement unless otherwise expressly specified. 1.03 Number; Gender Whenever required by the context, the singular shall include the plural, the neuter gender shall include the male gender and female gender, and vice versa. 1.04 Exhibits All Schedules and Exhibits referenced in this Agreement are incorporated by this reference as if fully set forth in this Agreement, and all references to this Agreement shall be deemed to include all such Schedules and Exhibits. 1.05 No Construction Against Drafter This Agreement has been negotiated and prepared by Owner and Manager and their respective attorneys and, should any provision of this Agreement require judicial interpretation, the court interpreting or construing such provision shall not apply the rule of construction that a document is to be construed more strictly against one party. Gold Mountain Golf Club Management Agreement 5 ARTICLE II MANAGEMENT SERVICES 2.01 Appointment of Manager / Manager’s Management Responsibilities Subject to the terms and conditions of this Agreement, Owner engages Manager, as an independent contractor, to service, operate, promote and manage the Club Facilities for and on the account of Owner, as agent for Owner, and grants Manager the exclusive authority, right and full control to service, operate, promote and manage the Club Facilities and the personnel associated with the Club Facilities on a day-to-day basis consistent with the Operating Standard at Owner’s sole cost and expense. Manager hereby accepts such engagement and agrees to service, operate, promote and manage the Club Facilities for the account and on behalf of Owner, as Owner’s agent, in accordance with the terms of this Agreement. Without limiting the foregoing, Manager shall have sole and exclusive authority to do the following: (a) manage all aspects of the Club Facilities’ human resource functions, including terms and conditions of employment, recruiting, screening, selection, hiring, training, compensation, employee benefits, supervision, discipline, dismissal and replacement; (b) establish all relevant prices, price schedules, rates, rate schedules, rents, lease charges and concession charges for all areas of the Club Facilities; (c) negotiate and administer, in the name and on behalf of Owner, leases, licenses and concession agreements for gift shops or other minor areas appurtenant to the Club Facilities; (d) provide marketing and sales services for the Club Facilities; (e) obtain and keep in full force and effect in Manager’s name or in Owner’s name, as may be required by Applicable Laws, any and all license and permits to the extent the same is within the control of Manager; (f) negotiate, enter into, and administer, in the name and on behalf of Owner, contracts, licenses and purchase orders for services, inventories, provisions, and supplies that are necessary for maintenance and operation of the Club Facilities, and use the same in the management and operation of the Club Facilities; (g) negotiate, enter into, and administer, in the name and on behalf of Owner, contracts for the use of meeting areas by groups and individuals; (h) institute in its own name or, with Owner’s written consent, in the name of Owner or the Club Facilities any and all legal actions or proceedings necessary for, or incident to, operation and maintenance of the Club Facilities; (i) maintain the facilities and equipment associated with the Club Facilities in good repair and condition; (j) collect all charges, rent and other amounts due from guests, patrons, licensees and concessionaires of the Club Facilities and use those funds, together with funds from other sources that may be available to the Club Facilities, first to pay all Operating Expenses of the Club Facilities on behalf of Owner and then any other financial obligations of the Club Facilities as Owner may reasonably direct; and Gold Mountain Golf Club Management Agreement 6 (k) perform such other tasks acceptable to Manager as are customary and usual in the operation of a Club Facilities of a class and standing equal to the Club Facilities. Notwithstanding the foregoing, unless otherwise part of the Annual Plan and Budget approved by Owner in accordance with Section 5.02, Manager shall not enter into any agreement in the name of Owner (i) that creates an obligation of Owner that is greater than twenty-five thousand dollars ($25,000) or (ii) whose term exceeds one year and cannot be terminated without liability on sixty (60) days’ written notice without Owner’s prior written consent. 2.02 Personnel In furtherance of Manager’s obligation to manage the Club Facilities’ human resource functions, Manager shall have sole and exclusive responsibility for (a) identifying, interviewing, selecting, appointing, hiring, retaining, supervising, directing, disciplining and firing the Club Facilities’ general manager(s) and other senior managers, and all other personnel necessary for the operation of the Club Facilities and the Club Facilities’ systems and facilities; and (b) adopting and offering to personnel, and administering on Owner’s behalf, employee benefit plans determined by Manager. All personnel associated with the Club Facilities shall be employees of Manager, provided that all costs associated with such personnel shall be an Operating Expense. Costs and expenses related to personnel may include, but are not limited to, benefit administration costs, payroll processing, recruiting, software licensing fees and compliance with all Applicable Laws, including, without limitation, the Consolidated Omnibus Budget Reconciliation Act (COBRA) and the Worker Adjustment and Retraining Notification (WARN) Act. 2.03 Sales and Marketing In connection with its management of the Club Facilities, Manager shall provide marketing and sales services, including (a) development (as part of the Annual Plan and Budget) and implementation of a sales and marketing program for the Club Facilities; (b) production and distribution of promotional materials; (c) development and implementation of promotional offers or programs; (d) attendance of the Club Facilities’ personnel at relevant conventions, meetings, seminars and conferences; (e) selection of, engagement, and guidance to, as required, advertising, creative and public relations personnel and (f) updating and maintenance of the Club Facilities’ website. Marketing and sales services provided under this Section 2.03 may be provided by Manager either solely on behalf of the Club Facilities or in conjunction with other similar Manager-operated properties (in which event such services would be centralized and billed to the Club Facilities in accordance with Section 4.04). 2.04 Centralized Services Owner acknowledges and agrees that in performing services under this Agreement (i) Manager may elect from time to time to perform certain functions (the “Centralized Services”) as defined in Section 1.01 and in Exhibit D on a centralized basis using the personnel and resources of Manager’s or its Affiliates’ corporate office or other Manager-managed properties and (ii) the costs of any such centralized services shall be allocated fairly and equitably among the Manager-managed properties benefitting from such services. Owner further agrees that Manager may use its reasonable discretion to identify and determine from time to time those functions best performed on a centralized basis and that the costs of providing such Centralized Services to the Club Facilities together with a reasonable profit shall be billed to, and paid by, Owner as an Operating Expense in accordance with Section 4.04. Gold Mountain Golf Club Management Agreement 7 2.05 Conditions to Manager’s Obligations Notwithstanding anything contained in this Agreement, Manager shall be excused from, and may immediately suspend its performance of, its obligations under this Agreement: (a) To the extent and whenever Manager shall be prevented from compliance with such obligations by events of Force Majeure; (b) To the extent of any breach of any representation, warranty or covenant contained in this Agreement or default hereunder by Owner; or (c) In the event Owner fails to provide the working funds necessary to operate the Club Facilities in a manner consistent with the Operating Standard. It is expressly agreed and understood that each and every provision contained in this Agreement pursuant to which Manager is excused from its obligations under this Agreement shall operate without prejudice to any right or remedy that Manager may have hereunder, at law or in equity. ARTICLE III TERM 3.01 Initial Term and Renewal Manager’s services under this Agreement shall commence on January 1, 2020 (the “Commencement Date”) and, unless earlier terminated in accordance with this Agreement, shall continue until the December 31, 2024of the Commencement Date (the “Initial Term”. Upon expiration of the Initial Term, this Agreement shall automatically renew for two successive three-year terms, (a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides written notice of its intent not to renew ninety (90) days prior to expiration of the Initial Term. 3.02 Termination - Event of Default In addition to the other termination rights set forth in this Agreement, this Agreement may be terminated prior to expiration under the following circumstances (each an “Event of Default”): (a) By either party, if the other party materially breaches any term of this Agreement or defaults in the performance of any obligation under this Agreement that can be cured with the payment of money and fails to cure such breach within ten (10) days following notice thereof by the non-defaulting party; (b) By either party, if the other party materially breaches any term of this Agreement or defaults in the performance of any obligation under this Agreement that cannot be cured with the payment of money, and fails to cure such breach or default within thirty (30) days following notice thereof by the non-defaulting party, or, in the event that it is not possible to cure such breach or default within thirty (30) days, the defaulting party fails to commence to cure the breach or default within the 30-day period and thereafter proceed diligently and in good faith to cure such breach or default within ninety (90) days; (c) By Manager, if Owner fails to timely deposit amounts requested by Manager in accordance with Sections 5.07 or 6.02; or Gold Mountain Golf Club Management Agreement 8 (d) By either party, in the event of an appointment of a receiver, trustee or liquidator of the other party or of all or any part of its assets, or the filing of a voluntary petition in bankruptcy, the making of a general assignment for the benefit of creditors, the filing of a petition or an answer seeking reorganization or arrangement with creditors or bankruptcy petition or similar petition under state law, and such appointment, filing, assignment, or petition is not vacated within sixty (60) days. The non-defaulting party shall, in addition to its right of termination, be entitled to pursue all other available remedies at law or equity as a result of an Event of Default, including, in the case of a default by Owner, accrued and owing management fees and reimbursable expenses through the effective date of termination. 3.03 Termination - Convenience After expiration of the Initial Term, Owner or Manager may terminate this Agreement without penalty or liability by providing the other party written notice 160 days prior to expiration date. 3.04 Effect of Termination Upon expiration or earlier termination of this Agreement, the parties agree that (a) except for costs and expenses caused by Manager’s Event of Default or as otherwise set forth in Section 7.03, any expenses arising as a result of the termination shall be for the sole account of Owner and Owner shall reimburse Manager on receipt of any invoice from Manager for any termination expenses; (b) within thirty (30) days following termination, Owner shall pay Manager any and all fees or other amounts owed under this Agreement through, to, and including the effective date of termination, including any applicable Early Termination Fee; (c) Manager shall peacefully vacate and surrender the Club Facilities to Owner; (d) Manager shall assign and transfer to Owner (i) all books and records of the Club Facilities in Manager’s custody or control, including those contracts, leases and other agreements regarding the Club Facilities that are assignable and not Manager’s Intellectual Property and (ii) all right, title and interest in and to all permits and licenses, if any, held by Manager in connection with the Club Facilities, to the extent such transfer or assignment is permitted under Applicable Laws; (e) Owner shall honor all business confirmed for the Club Facilities with reservation dates after the effective date of termination; and (f) as of the effective date of termination, Manager shall remove all Manager’s Intellectual Property. Upon expiration or earlier termination of this Agreement, the parties' obligations with respect to this Agreement will terminate, except as to liabilities or claims of either party that have accrued or arisen before the termination date. Notwithstanding the foregoing, all provisions of this Agreement that are expressly or by implication to remain in force after the termination of this Agreement (including Articles X, XII and XIII and Sections 3.04, 7.03, 7.04, 11.01, 14.02, 14.03, 14.04, 14.06, 14.07, 14.12 and 14.13) will survive the expiration or earlier termination of this Agreement. ARTICLE IV COMPENSATION 4.01 Base Management Fee From and after the Commencement Date, Owner shall pay Manager for services provided under this Agreement a monthly base management fee of four and a quarter percent (4.25%) of the Club Facilities’ Gross Revenue (the “Base Management Fee”). The Base Management Fee shall be paid monthly (prorated for any partial month) on or before the tenth (10th) day of the month immediately following the month during which services were rendered. Gold Mountain Golf Club Management Agreement 9 4.02 Incentive Management Fee From and after the Commencement Date and in addition to the Base Management Fee, Owner shall pay Manager for services provided under this Agreement an annual Incentive Management Fee equal to twenty percent (20%) of the Club Facilities' Net Operating Income, less replacement reserves, in excess of Six Hundred Thousand and No/100 Dollars ($600,000 00) and to the cap of Six Hundred and Fifty Thousand and No/100 Dollars ($650,000). Owner shall pay Manager for services provided under this Agreement an annual Incentive Management Rate equal to twenty-five percent (25%) of the Club Facilities Net Operating Income, less replacement reserves, in excess of Six- hundred and Fifty Thousand and One Dollars and No/100 Dollars ($650,001) and to the cap of Seven- hundred Thousand and No/100 Dollars ($700,000). Owner shall pay Manager for services provided under this Agreement an annual Incentive Management Rate equal to thirty percent (30%) of the Club Facilities Net Operating Income, less replacement reserves, in excess of Seven-hundred Thousand and One Dollars and No/100 Dollars ($700,001) and to the cap of Seven-hundred Thousand and Fifty No/100 Dollars ($750,000). Owner shall pay Manager for services provided under this Agreement an annual Incentive Management Rate equal to forty percent (40%) of the Club Facilities Net Operating Income, less replacement reserves, in excess of Seven-hundred and Fifty Thousand and One Dollars and No/100 Dollars ($750,001). (the "Incentive Management Fee"). The annual Incentive Management Fee shall be computed and paid annually based on the Annual Statements provided hereunder. Payment shall be made on or before the tenth (10th) day following the delivery of the Annual Statements 4.03 Reimbursable Expenses From and after the Commencement Date and in addition to the Base Management Fee and Incentive Management Fee, Owner will reimburse Manager for the following Reimbursable Expenses, (a) corporate employees or employees of other Manager-operated properties serving functions associated with the Club Facilities that would otherwise be served by property-level staff; (b) all reasonable third party costs and expenses incurred and paid by Manager and its personnel (corporate or otherwise), including, without limitation, transportation costs, long distance and postage while performing under this Agreement; (c) payments made by Manager to third parties for goods and services in the ordinary course of the Club Facilities’ operation; and (d) taxes and similar assessments levied against any reimbursement payable to Manager, including any applicable withholding taxes. Owner will pay, within thirty (30) days after the notice date, expenses to be reimbursed to Manager in accordance with this Section 4.03. 4.04 Centralized Service Fees From and after the Commencement Date, Manager reserves the right to charge certain fees and charges associated with any Centralized Services provided by Manager or its Affiliates in accordance with Section 2.04 (“Centralized Service Fees”). Centralized Service Fees shall be paid monthly (prorated for any partial month) in arrears, no later than the 15th day of each month commencing with the Commencement Date. Any such Centralized Service Fees will be allocated equitably among participating Manager-operated properties. 4.05 Payment Gold Mountain Golf Club Management Agreement 10 Amounts payable to Manager or its Affiliates under this Agreement shall be paid in immediately available funds without reduction for taxes or other assessments. Payment shall be made to the place designated for the giving of notice under Section 14.04 or to such other place designated by Manager. At Manager’s option, payments due Manager or its Affiliates may be made by Manager out of the appropriate Operating Account(s). 4.06 Club Facilities Accommodations and Amenities In addition to the fees outlined above, Owner shall provide Manager and its staff discounted use of the Club Facilities and their amenities on a “space available basis” and with no impact to public access, for leisure utilization and complimentary use of the Club Facilities for business related visits. ARTICLE V ACCOUNTING 5.01 Operating Expenses Paid by Owner All actions of Manager in the performance of its obligations and expenses incurred under this Agreement, including all wages, benefits and other payroll expenses of the Club Facilities’ personnel, shall be for, and on behalf of, Owner and for its account, and all debts and liabilities arising in the course of the Club Facilities’ operations, including, without limitation, any and all costs related to claims by the Club Facilities’ personnel concerning their employment, shall be the obligation of Owner, and Manager shall not be liable for any of such expenses, debts, liabilities and obligations by reason of its direction, management, supervision and operation of the Club Facilities on Owner’s behalf. 5.02 Accounting Matters During the Term, Manager shall maintain separate books of account and other financial records and systems for the Club Facilities that collect and reflect the results from the Club Facilities in all material respects in accordance with GAAP. All books of account and other financial records of the Club Facilities shall be available to Owner at the Club Facilities at reasonable hours for examination, inspection and copying upon reasonable notice. The City or its representatives may audit all of the Contractor’s books and records relating to the Facility and its operation each year, and may audit some or all those books and records at any other reasonable time, upon not less than five days’ prior written notice. On or before the twentieth (20th) day of each month that follows a month during which the Club Facilities were open and operating, Manager shall furnish to Owner a profit and loss statement for each Club Facilities that contains Gross Revenues, Operating Expenses, Gross Operating Profit and Net Operating Income for the preceding month and the year to date (the “Monthly Statements”). Within thirty (30) days following the end of each Operating Year, Manager shall furnish to Owner the cumulative year-end statements that detail calculations and payments of the fees payable to Manager hereunder (the “Annual Statements”). The parties shall, within thirty (30) days after Owner’s receipt of the Annual Statements, make any adjustments, by cash payment, in the amounts paid or retained for such Operating Year as are needed because of the final figures set forth in the Annual Statements. All out-of-pocket costs and expenses incurred in the preparation of any statements, schedules, computation and other reports required under this Article V or any or provision of this Agreement shall be an Operating Expense of the respective Club Facilities. 5.03 Accounts and Expenditures Gold Mountain Golf Club Management Agreement 11 All funds derived from the Club Facilities’ operations shall be deposited by Manager in separate bank accounts in a bank or banks designated by Manager, subject to Owner’s reasonable approval (the “Operating Accounts”). Withdrawals from the Operating Accounts shall be made solely by representatives of Manager whose signatures have been authorized by Owner. Reasonable petty cash funds shall be maintained at the Club Facilities. Manager shall cause disbursements to be made from the funds collected and deposited in the Operating Accounts in the manner and order designated by Manager, in the exercise of its commercially reasonable discretion. Debts and liabilities incurred by Manager hereunder as a result of its operation and management of the Club Facilities, whether asserted before or after expiration or earlier termination, will be paid by Owner to the extent funds are not available for that purpose from Gross Revenue that has been deposited in the Operating Accounts or petty cash. Manager shall not be obligated to incur any liability or obligation with respect to the Club Facilities, and Manager shall not be responsible for paying any obligation unless the amounts in the Operating Accounts, together with other funds provided by Owner, are sufficient to make such payment. 5.04 Annual Plan and Budget On or before July 31st of each Operating Year, Manager shall prepare and provide to Owner for its review and approval Manager’s proposed operating plan and budget for the Club Facilities, which operating plan and budget shall contain, among things, Manager’s Initial Annual Estimates (revised as necessary), as well as estimated Gross Operating Profit and Net Operating Income, proposed Improvements and proposed expenditures from the Replacement Reserve Accounts for the ensuing Operating Year (the “Annual Plan and Budget”). If Owner disapproves of the Annual Plan and Budget, it shall identify the line items it disapproves and the remaining items shall be approved. Until such time as Owner and Manager are able to reach complete agreement over the Annual Plan and Budget, Manager may operate the Club Facilities under the proposed form of Annual Plan and Budget substituting those items still under dispute (other than fixed charges over which Manager has no control) with items taken from the prior Operating Year’s Annual Plan and Budget adjusted to account for changes in anticipated occupancy and inflation and known cost increases. For the first Operating Year (Commencement Date – January 1, 2020), Manager shall operate the Club Facilities in accordance with the budget proposed by Manager and adopted by Owner during the Owner’s annual budget process for the 2020 budget. 5.05 Compliance with Annual Plan and Budget Once the Annual Plan and Budget is approved by Owner or deemed to be approved, Manager may incur the expenditures and implement the provisions of the Annual Plan and Budget and, absent prior approval from Owner, Manager may not exceed amounts set forth in the Annual Plan and Budget (in the aggregate) by more than fifteen percent (15%), provided, however, that the preceding cap shall not apply to line item increases directly attributable to unplanned increases in occupancy or other revenue-producing activities. Owner and Manager acknowledge and agree that the Annual Plan and Budget is predicated on revenues and operating expenses estimated at the time of adoption of the Annual Plans and Budgets. The parties agree that adjustments to the Annual Plan and Budget may be required for variable expenses and events not reasonably within the control of Owner or Manager. All updates and revisions to the Annual Plan and Budget shall be submitted to Owner for review and approval in the manner described in this Section 5.05. 5.06 Emergency Expenditures Notwithstanding anything to the contrary in this Article or elsewhere in the Agreement, Manager may make expenditures in addition to those provided in the Annual Plan and Budget without the prior approval of Owner if Manager determines, in its reasonable discretion, that such expenditures are reasonably necessary to protect life or property, to comply with Applicable Laws or to avoid suspension Gold Mountain Golf Club Management Agreement 12 of any service to the Club Facilities, provided that Manager uses commercially reasonable efforts to confer with Owner prior to any such expenditure and that Manager, as soon as reasonably possible, provides Owner written notice of any such expenditure. Additionally," reasonable efforts to confer with the owner" includes the following: requests for owner to self-perform needed work. If Owner, in its reasonable discretion, identifies a matter that it believes is reasonably necessary to protect life or property, to comply with Applicable Laws or to avoid suspension of any service to the Club Facilities, and provides three days’ advance written notice for Manager to address, and such matter goes without remedy or satisfactory response, Owner may make such expenditures to address the matter and may deduct such expenses from Manager’s Base Management Fee. Notwithstanding the foregoing, such Emergency Expenditures are not a part of the Annual Plan and Budget calculations, and the funds for such Emergency Expenditures as set forth in this Section 6.05 shall be provided by Owner to Manager. 5.07 Working Capital Owner acknowledges and agrees that it has sole responsibility for the funding of the Annual Plan and Budget. All costs and expenses with respect to the operation and ownership of the Club Facilities shall be borne solely by and timely paid by Owner. Prior to the commencement of Manager’s services under this Agreement, Owner shall deposit no less than Three Hundred Thousand and No/100 Dollars ($300,000.00) into the Operating Account(s) to fund the transition in operations to Manager and its systems (the “Initial Working Capital Deposit”). From and after the Commencement Date, Owner shall ensure that sufficient working capital funds exist and are available to Manager at all times to meet the operating needs of the Club Facilities, which amount shall be no less than two (2) months’ average Operating Expenses of the applicable Club Facilities as determined under the applicable Annual Plan and Budget. From time to time during the Term, on Manager’s request, Owner shall deposit funds into the Operating Accounts sufficient to allow the uninterrupted operation of the Club Facilities in accordance with the terms of this Agreement and in a manner consistent with the Operating Standard. Owner’s deposit shall be made within thirty (30) days after receiving Manager’s funding request. ARTICLE VI REPAIRS, MAINTENANCE AND IMPROVEMENTS 6.01 Routine Repairs and Maintenance In furtherance of Manager’s obligation to maintain the Club Facilities, Manager shall make or cause to be made such routine maintenance, repairs and minor alterations to the Club Facilities, including, without limitation, the golf course greens and surrounding areas, as it determines are necessary for such purposes and as more thoroughly specified in Exhibit B. Such routine maintenance, repairs and alterations shall include only those items that are normally expensed under GAAP and shall be paid from the Operating Account(s). Manager shall comply with RCW Chapters 39.04, 39.12 and 39.80 relating to public works contracting, if and as applicable, for maintenance and repairs. In this regard, Manager will periodically seek the advice of Owner in such matters and Owner will provide administrative and purchasing support to Manager if requested. Manager may not undertake physical alterations (excluding paint and wall and floor finishes) to the Club Facilities unless set forth in an Annual Plan and Budget without prior written consent of Owner. 6.02 Improvements and the Replacement Reserve Account (a) Owner acknowledges and agrees that as the Club Facilities age, certain Capital Improvements will be required to maintain and operate the Club Facilities’ facilities (including the buildings, grounds, FF&E and operating supplies) in a manner consistent with the Operating Standard. Gold Mountain Golf Club Management Agreement 13 To facilitate the funding of such needed Improvements at the Club Facilities, Manager shall deposit, as a minimum, an amount equal to four percent (4%) of the Gross Revenue, after the annual reconciliation of the fund balance, in a replacement reserve account established by Manager for the Club Facilities in a bank or banks designated by Manager, subject to Owner’s approval (the “Replacement Reserve Account”). Annual reconciliation shall occur within 45 days of fiscal year end. Approval of the annual replacement plan shall be approved within 45 days after the reconciliation of the fund balance so Manager can expend authorized funds for actual replacements. (b) Funds deposited in the Capital Reserve Account shall be used solely for paying for Capital Improvements included and approved in the Annual Plans and Budgets or otherwise approved by Owner, provided, that Manager may make expenditures out of the Capital Reserve Account without the prior approval of Owner if Manager determines in its reasonable discretion that expenditures are required to protect life or property or comply with Applicable Laws. If the estimate approved by Owner exceeds the Replacement Reserve Account balance, Owner will provide the additional funds required for such work within fifteen (15) days after receiving Manager’s funding request, and in the event Owner fails to make such deposit, Manager may terminate this Agreement upon ten (10) days’ notice to Owner. At the end of each Operating Year, any amount remaining in the Replacement Reserve Accounts together with accumulated interest shall be carried forward and credited as an addition to the Replacement Reserve Accounts otherwise established for the next succeeding Operating Year. Manager shall have no obligation to supervise any Improvement and all Improvements shall be performed exclusively by Owner and its representatives and agents and not by Manager. The cost of all Improvements shall be borne solely by Owner, shall not be an Operating Expense, and shall be reimbursed from the Capital Reserve Account to the extent there are funds in that account. (c) Any improvements, alterations, or changes made to the Golf Facilities in accordance with this Section 6.02 shall become a part of the Golf Facilities and shall belong to Owner upon expiration or sooner termination of this Agreement. (d) Manager shall maintain and repair the Facility and all furniture fixtures and equipment (FF&E) located on and in the premises. Manager shall undertake make all repairs and replacements that may be necessary so that at all times the Facility is in good order, condition and repair. 6.03 Liens Subject to Manager’s receipt of appropriate funding from Owner, Manager shall keep the Golf Facilities free from any liens arising out of any work performed, materials furnished, or obligations incurred by Manager. ARTICLE VII INSURANCE AND CLAIMS 7.01 Insurance and Bonds (a) Manager shall, at all times during the Term and at Owner’s sole cost and expense, furnish and maintain insurance and/or bonds of the types and with the coverages and deductibles described in Exhibit C with commercial insurance carriers having an A.M. Best rating of A-VII or better. All insurance policies furnished and maintained under this Section 7.01 shall include, to the extent possible, a requirement that the insurer provide each party at least thirty (30) days’ advance written notice of cancellation of the applicable policy. Insurance maintained by Manager under this Section 7.01 shall Gold Mountain Golf Club Management Agreement 14 be primary, and any insurance carried by Owner shall be excess and non-contributory. On or before the Commencement Date and prior to the effective date of any replacement or renewal policies furnished and maintained hereunder, Manager shall provide Owner with certificates of insurance evidencing that the insurance requirements of this Agreement have been satisfied. Owner and Manager acknowledge and agree that the policies and limits described herein shall be subject to adjustment by mutual agreement of the parties from time to time during the Term to reflect changes in the insuring practices for facilities similar to the Club Facilities and changes in insurance products. (b) Owner shall maintain appropriate property coverage for the Club Facilities. Such policy(ies) shall include a replacement cost endorsement. Upon request, Owner shall provide Manager certificates of insurance evidencing the insurance required to be maintained by Owner under this Section. 7.02 Waiver of Subrogation Owner and Manager each waive any and all rights of recovery against the other (and against the affiliates, members, shareholders, managers, directors, officers, employees and representatives of the other party) for any loss, damage or injury to such waiving party or its property or others under its control, to the extent such loss, damage or injury is covered by the insurance maintained by the parties or required to be obtained by the parties under this Agreement (including any related deductible or retention), provided that this waiver does not apply to any rights that any party may have to insurance proceeds from their respective insurance policies at the time of such loss or damage. Each party obtaining any of the insurance described in Section 7.01 shall, to the extent commercially possible, obtain from its insurance carriers a consent to such waiver. 7.03 Indemnification (a) Each party shall defend, indemnify and hold the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all reasonable legal costs and attorney fees, arising or alleged to arise out of or in connection with its performance of this Agreement, except as provided in subsection (c) of this section. (b) In the event of any claim related to the parties’ performance of this Agreement, each party shall first seek application of the primary insurance described in Section 7.01. (c) All reserves, losses, costs, damages or expenses that fall within applicable self- insured or deductible limits as described in Exhibit C, together with any costs of administration of the Club Facilities’ insurance program, shall be paid by Owner and shall be treated as a deduction in determining Net Operating Income. (d) Notwithstanding subsection (c) of this Section, each party shall pay all claims, damages, losses, expenses, costs and attorney fees that a final court of competent jurisdiction has found results or arises out of its negligent or willful misconduct. (e) Should a court of competent jurisdiction determine that 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 Manager and the Owner, Manager's liability hereunder (to the extent not otherwise covered by the insurance required to be maintained by Manager in accordance with Section 7.01) shall be only to the extent of Manager's negligence as determined by a final court of competent jurisdiction (or otherwise agreed by Manager in a settlement reasonably approved by Manager). Gold Mountain Golf Club Management Agreement 15 (f) In the event of any claim, damage, loss, expense or other cost arising under this Section, the parties agree to reasonably cooperate with, and provide reasonable assistance to, the other to first pursue and maximize possible insurance coverage and then, to the extent such claim, damage, loss, expense or other cost is not insured or falls within any applicable self-insured or deductible limits, defend and settle the claim, damage, loss, expense or cost. The parties agree, at Owner’s request, to negotiate in good faith revisions to this Section 7.03 in the event claims, damages, losses, expenses or costs during any complete Operating Year greatly exceed the Club Facilities’ historical loss history. 7.04 Waiver of Industrial Immunity SOLELY TO EFFECTUATE THE INDEMNITIES CONTAINED IN SECTION 7.03, EACH PARTY HERETO SPECIFICALLY AND EXPRESSLY WAIVES ANY IMMUNITIES OR LIMITATIONS ON LIABILITIES THAT IT MAY HAVE AS AN EMPLOYER UNDER ANY APPLICABLE WORKER COMPENSATION LAW, INDUSTRIAL INSURANCE ACT, OR ANY SIMILAR STATUTE. MANAGER ________ OWNER _______ ARTICLE VIII 8.01 Casualty If the Club Facilities are damaged or destroyed by casualty and Owner reasonably determines it is not feasible to rebuild, Owner or Manager may terminate this Agreement. If Owner elects to rebuild, then this Agreement shall continue in full force and effect. If the Club Facilities are closed for longer than three (3) months as the result of such casualty and Owner elects to rebuild the Club Facilities, this Agreement and its obligations will be suspended until the Club Facilities are re-opened or such other time as the parties agree. The parties may negotiate an interim management agreement to cover the period of such suspension. 8.02 Condemnation (a) Permanent Taking. Upon a taking of either a fee interest in, or a perpetual easement on, all or any portion of the Club Facilities such that the part not taken may not reasonably be repaired, restored, replaced or rebuilt so as to constitute a golf facility as contemplated by the parties under this Agreement, either Owner or Manager shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days’ written notice to the other. Upon a taking of less than all of the subject Club Facilities, and if this Agreement has not terminated as permitted in this Section, this Agreement shall remain in full force and effect with respect to the remainder of the Club Facilities, and the awards or other proceeds on account of the taking on account of the taking shall not be included in the calculation of Gross Revenue for the Operating Year(s) in which received. Owner shall promptly repair, restore, replace or rebuild the remainder of the Club Facilities as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such work shall not be deducted as an Operating Expense. Upon any taking, Manager shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days’ written notice to Owner. (b) Temporary Taking. If a temporary taking occurs so that the Club Facilities may not be operated in the manner consistent with the Operating Standard and continues in effect for a period of longer than twelve (12) months, either Owner or Manager shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days’ written notice to the other. Otherwise, upon a temporary Gold Mountain Golf Club Management Agreement 16 taking of all or any portion of the Club Facilities, this Agreement shall remain in full force and effect, and the awards or other proceeds on account of the taking on account of the taking shall not be included in the calculation of Gross Revenue for the Operating Year(s) in which received. When and if, during the Term, the period of temporary taking ceases, Owner shall make all such restoration, repairs and alterations as are necessary to restore the Club Facilities to its condition prior to the taking. Owner shall promptly repair, restore, replace or rebuild the remainder of the Club Facilities as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such work shall not be deducted as an Operating Expense. ARTICLE IX BUSINESS INTERRUPTION In the event the Club Facilities suffer damage or loss as described in Section 8.01 that results in the interruption of operation of the Club Facilities for a period of three months or less, Owner shall be obligated during the period of interruption or any extended indemnity period (or until this Agreement is otherwise terminated or suspended by the parties in accordance with Section 8.01) to pay Manager for services provided an interim monthly management fee equal to four and a quarter percent (4.25%) of the Club Facilities’ Gross Revenue for the same period of the prior year (the “Interim Management Fee”). By way of example and for clarification purposes only, in the event a portion of the Club Facilities are damaged by fire and Owner elects to repair and re-open the Club Facilities during the three-month period of October through December 2020, Owner shall pay Manager a monthly Interim Management Fee equal to 4.25% of the Gross Revenue generated by the Club Facilities during the months of October, November and December in 2019. Owner’s payment obligations under this Article IX shall be offset and reduced by any proceeds received by Manager under any business interruption policy maintained by Manager in accordance with Section 7.01. ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS 10.01 By Owner Owner represents, warrants and covenants as follows: (a) Manager may peaceably and quietly possess, manage and operate the Club Facilities’ during the Term, subject to the conditions hereof, free from interference, interruption or disturbance by Owner or its affiliates or anyone claiming through Owner or its Affiliates. (b) Owner has full power, authority and legal right to execute, perform and observe all of the provisions under this Agreement. This Agreement constitutes a valid and binding obligation of Owner and does not constitute a breach or default under Owner’s governing documents or the terms, conditions or provisions of any agreement or instrument to which Owner or any of its Affiliates is a party or any Applicable Law. (c) There is no litigation or proceeding pending or, to Owner’s knowledge, threatened against Owner, Owner’s Affiliates or the Club Facilities that could adversely affect the validity of this Agreement or the ability of Owner to comply with its obligations under this Agreement. (d) The Club Facilities are, and Owner will ensure that prior to the Commencement Date all activities and conditions associated with the Club Facilities will continue to be, in compliance with all Applicable Laws. Gold Mountain Golf Club Management Agreement 17 (e) To the best of Owner’s knowledge (i) no Hazardous Materials are present in or on, or have been released from, the Club Facilities, (ii) there exists no other surface or subsurface soil, water, mineral, chemical or environmental condition in, on or under the Club Facilities that presents or poses any threat to the health and safety of any person or any property or with the passage of time will require notice or reporting to any governmental authority or employees or patrons of the Club Facilities, or otherwise require, based on any legal requirement or standard of prudent ownership, monitoring or remedial action, (iii) there exists no identifiable threat of the contamination of the Club Facilities by release of Hazardous Materials from existing sources adjacent to the Club Facilities, and (iv) the Club Facilities contain no underground storage tanks. (f) As of the Commencement Date, (i) all leases, licenses, franchises, concessions, service agreements, mortgages or other agreements or security instruments with respect to the Club Facilities are in full force and effect and (ii) there exists no breach, default or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Club Facilities agreements or instruments either by Owner or the other contracting party. (g) During the term of this Agreement, Owner shall use its best efforts to pay, keep, observe and perform all payments, terms, covenants, conditions and obligations to be made, kept, observed or performed by Owner under any lease, license, franchise, concession, mortgage or other agreement or security instrument with respect to the Club Facilities, and shall keep such agreements and instruments in full force and effect. (h) Owner has, and throughout the term of this Agreement shall maintain, good and marketable title to the Club Facilities and the FF&E and all operating equipment and supplies, free and clear of all liens and encumbrances. 10.02 By Manager Manager represents, warrants and covenants as follows: (a) Manager has full power, authority and legal right to execute, perform and observe all of the provisions under this Agreement. This Agreement constitutes a valid and binding obligation of Manager and does not constitute a breach or default under Manager’s governing documents or the terms, conditions or provisions of any agreement or instrument to which Manager or any of its Affiliates is a party or any Applicable Law. (b) There is no litigation or proceeding pending or, to Manager’s actual knowledge, threatened against Manager or Manager’s Affiliates that could adversely affect the validity of this Agreement or the ability of Manager to comply with its obligations under this Agreement. ARTICLE XI ENVIRONMENTAL 11.01 Environmental Laws Manager shall not use, generate, manufacture, store on, dispose of, produce, bring onto, or otherwise introduce to the Club Facilities any Hazardous Material, except those typically used in prudent and safe Club Facilities’ operation. Owner shall indemnify, defend and hold the Manager harmless from and against all loss, costs, liability and damage (including, without limitation, engineers’ and attorneys’ fees and expenses, and the cost of litigation) arising from the presence of Hazardous Gold Mountain Golf Club Management Agreement 18 Materials in, on or under the Club Facilities, except to the extent such loss, costs, liability or damage results from Manager’s gross negligence or willful misconduct. For purposes of this Agreement, “Hazardous Materials” means and includes asbestos or any substance containing asbestos, polychlorinated biphenyls, any explosives, radioactive materials, chemicals known or suspected to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions, infectious wastes, petroleum or petroleum-derived waste or product or related materials and any items defined as hazardous, special or toxic materials, substances or waste under any Environmental Law, or any material which shall be removed from the Club Facilities pursuant to any administrative order or enforcement proceeding or in order to place the Club Facilities in a condition that is suitable for ordinary use. “Environmental Laws” means all federal, provincial and local laws (whether under common law, statute or otherwise), ordinances, rules, regulations and guidance documents now in force, as amended from time to time, in any way relating to or regulating human health or safety, industrial hygiene or environmental conditions, protection of the environment, pollution or contamination of the air, soil, surface water or groundwater, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq., the Clean Water Act, 33 U.S.C. §1251 et seq., the Clean Air Act, as amended, 42 U.S.C. §7401 et seq., the Occupational Safety and Health Act, 29 U.S.C. §651 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §1321 et seq., and the Toxic Substances Control Act, 15 U.S.C. §2601 et seq., and the amendments, regulations, orders, decrees, permits, licenses or deed restrictions now or hereafter promulgated thereunder.. 11.02 Payment of Costs All costs and expenses paid by Owner in connection with the compliance with all Environmental Laws, and any amounts paid to the Manager pursuant to the environmental indemnities hereunder shall be paid by Owner from its own funds and shall not be an Operating Expense, but may be a deduction from the Capital Improvement Reserve upon mutual consent of the parties. ARTICLE XII TRADEMARKS AND OTHER PROPRIETARY MATERIALS 12.01 Ownership of Manager Trademarks Owner acknowledges and agrees that Manager is and shall remain owner of the trademarks, trade name, service marks and copyrights associated with the name COLUMBIA HOSPITALITY and the related marks that include the words COLUMBIA HOSPITALITY, including COLUMBIA HOSPITALITY ACADEMY, and Manager’s corporate logo or symbol, together with the right to use any and all URLs, slogans, derivations, trade secrets, know-how, and trade dress, and all other proprietary rights associated with such names, marks and slogans (the “Manager Trademarks”). Owner agrees not to contest Manager’s rights in respect of the Manager Trademarks, including any additions or improvements to the Manager Trademarks by whomever developed. 12.02 Use of Manager Trademarks As part of its management services provided under the terms of this Agreement, Manager will use the Manager Trademarks as it deems appropriate and advisable to identify, designate, market, Gold Mountain Golf Club Management Agreement 19 advertise and promote the Club Facilities as being affiliated with the group of inns, hotels, resorts and other facilities managed by Manager, subject to the following terms: (a) In connection with Manager’s use of the Manager Trademarks, the Club Facilities will be identified as being affiliated with the Manager’s group of inns, hotels, resorts and facilities even though the Club Facilities will continue to be primarily designated as the “Gold Mountain Golf Club.” (b) Owner may not itself use the Manager Trademarks or apply for international, United States federal, or state or territorial registration of any rights in the Manager Trademarks. Without Manager’s prior consent, Owner may not use of the Manager Trademarks as all or part of its legal name or any other trade or assumed name under which Owner does business. (c) Manager retains the sole right and discretion to (i) determine how and on what materials the Manager Trademarks may be used and (ii) handle disputes and control actual or threatened litigation with third parties relating to any part of the Manager Trademarks. (d) Upon termination of this Agreement, any use of or right to use the Manager Trademarks shall immediately cease the Club Facilities will no longer be identified as being affiliated with the Manager’s group of inns, hotels, resorts and facilities. As of the date of termination, Manager shall remove any proprietary signage, collateral or other materials from the Club Facilities. 12.03 Use of Owner’s Trademarks Owner hereby grants to Manager a temporary, royalty-free, revocable, non-transferable license to use the trademarks “Gold Mountain,” “Gold Mountain Golf Club,” “Tucker’s at Gold Mountain,” and derivations thereof, together with all other trademarks, trade names and logos associated with the Club Facilities in connection with the performance of Manager’s obligations hereunder. 12.04 Manager’s Intellectual Property Owner acknowledges and agrees that Manager or its Affiliates may create, invent, author, produce, conceive or cause to be created, invented, authored, produced or conceived certain proprietary information, processes and systems and utilize or cause to be utilized such proprietary information, processes and systems in its management of the Club Facilities (collectively, “Manager’s Intellectual Property”). Manager’s Intellectual Property may include certain operations manuals; daily, monthly, quarterly and annual operational reports; budget programs and worksheets; sales and marketing plans and materials; recipes; employee training and development materials and guest profiles and information. Owner may not access, use, copy, distribute, reproduce, or allow access to or use of, Manager’s Intellectual Property except to the extent authorized by Manager and then only in conjunction with Manager’s services provided under this Agreement. Owner acknowledges and agrees that all right, title and interest in and to Manager’s Intellectual Property, and all copyrights, trademarks, or other intellectual property or proprietary rights relating thereto, are and shall remain the sole and exclusive property of Manager. Owner further acknowledges that no such right, title or interest in these items is granted under this Agreement to Owner. Gold Mountain Golf Club Management Agreement 20 ARTICLE XIII LIMITATIONS ON SERVICES AND RELEASE 13.01 No Manager Representation re Insurance In connection with any insurance coverages required or obtained under this Agreement, Manager makes no warranty or representation as to the advisability, nature or extent of the insurance coverages furnished and maintained by Manager for the benefit of Owner or other coverages Owner should consider for the protection of the Club Facilities or their operations. Owner agrees to rely exclusively on its own insurance advisors with respect to all insurance matters. 13.02 Financial Projections Any and all financial projections and budgets prepared by Manager under this Agreement, including the Annual Plans and Budget, are intended solely to assist Owner in operating the Club Facilities, but are not to be relied up on by Owner or any other third party as to the accuracy of information contained therein or the results predicted. Owner acknowledges and agrees that Manager shall not be held responsible by Owner or any third party for any divergence between such projections and budgets and actual operating results. 13.03 Warranty and Disclaimer MANAGER WARRANTS THAT IT WILL PERFORM ITS SERVICES HEREUNDER IN ACCORDANCE WITH THE DESCRIPTIONS SET FORTH IN THIS AGREEMENT USING GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES. MANAGER DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. 13.04 Release Owner hereby unconditionally releases Manager and its Affiliates and their respective owners, officers, directors, employees, agents and assigns from, and waives any right or claim relating to, any and all claims, liabilities and obligations, whether now existing or hereafter arising, and whether known, unknown, fixed, contingent or otherwise, arising from or related to the matters described in this Article XIII. ARTICLE XIV GENERAL TERMS AND CONDITIONS 14.01 Use of Affiliates Manager shall be entitled to contract with one or more of its Affiliates to provide goods and/or services to the Club Facilities, provided that the prices and/or fees paid to any such Affiliate are competitive with the prices and/or fees that would be charged by reputable and qualified parties that are not Affiliates of Manager for similar goods and/or services. The prices and/or fees paid to its Affiliates may include overhead and the allowance of a reasonable return customary for the goods and/or services to be provided. 14.02 Independent Contractor Gold Mountain Golf Club Management Agreement 21 Manager and its employees are not employees of the Owner. Manager will perform the services hereunder solely as an independent contractor and as agent of Owner. Neither this Agreement nor any agreements, instruments, documents or transactions contemplated herein shall in any respect be interpreted, deemed or construed as making Manager or its employees, agents, representatives and contractors an employee, partner or joint venturer with, or of, Owner or any of its Affiliates. 14.03 Confidentiality Each party will use commercially reasonable efforts to keep in confidence and prevent the disclosure to any third party of any Confidential Information it receives from the other party. Notwithstanding the foregoing, the receiving party may disclose Confidential Information: (a) to its members, managers, employees, agents, lenders, advisors and attorneys on a “need to know” basis, provided that each such person has agreed to keep in confidence and prevent the disclosure to any third party of the Confidential Information; or (b) required to be disclosed pursuant to provisions of law (Public Records Act Chapter 42.56 RCW or other similar law) or a subpoena, provided that, if allowed by law, the receiving party provides the disclosing party with timely written notice of the subpoena or order, and cooperates with the disclosing party in obtaining confidentiality orders. Each party will be entitled to equitable relief by way of injunction, temporary restraining order or otherwise, without the need to post a bond, if the other party breaches or threatens to breach any provision of this Section 14.03. 14.04 Notices All notices will be in writing and will be deemed duly given if (a) personally delivered, (b) sent by facsimile (with electronic confirmation of delivery), (c) sent by overnight delivery through a nationally-recognized overnight delivery service or (d) mailed registered or certified mail, return receipt requested, postage prepaid. Each notice will be delivered to the intended recipient at the applicable address or facsimile number set forth below or at any other address or facsimile number as any party notifies the other party in writing. Notices or other communications that are sent by (x) personal delivery or facsimile, will be deemed received on the day sent or on the first business day thereafter if not sent on a business day, (y) overnight delivery, will be deemed received on the first business day immediately following the date sent, and (z) U.S. mail, will be deemed received three business days immediately following the date sent. Notices shall be sent to the following addresses: If to Owner: City of Bremerton City Hall, 345 6th Street, Suite 600 Bremerton, WA 98337 Attention: Director of Financial Services Telephone: (360) 473-5722 Facsimile: 360) 473-5200 If to Manager: Columbia Hospitality, Inc. 2223 Alaskan Way, Suite 200 Seattle, WA 98121 Attention: John Oppenheimer Telephone: (206) 239-1800 Facsimile: (206) 239-1801 Gold Mountain Golf Club Management Agreement 22 with a copy to: Shiers Law Firm 600 Kitsap St, Suite 202 Port Orchard, WA 98366 Attention: Ken Kambich Telephone: (360) 876.4455 Facsimile: (360) 876-0169 14.05 Entire Agreement and Modification This Agreement constitutes all of the understandings and agreements of any nature existing between the parties with respect to the management services Manager will perform for Owner under the terms of this Agreement. Unless otherwise provided for herein, no amendments, changes, alterations or modifications of this Agreement shall be effective unless they are in writing executed by Manager and Owner. 14.06 Governing Law and Venue This Agreement will be construed and interpreted in accordance with the laws of the State of Washington, without regard to applicable choice of law principles. Any mediation, arbitration or legal proceeding that arises out of or in connection with this Agreement will be initiated and maintained in Kitsap County, Washington. Each party consents to jurisdiction and venue in such courts and waives the right to claim that any such court is an inconvenient forum. 14.07 Attorneys’ Fees In the event an action is commenced by either party to enforce any right or obligation hereunder or interpret this Agreement, each party shall pay all its own costs and attorney’s fees. 14.08 Assignment and Binding Effect Neither party may assign, pledge, encumber or otherwise transfer (whether by operation of law or as a result of merger, consolidation, reorganization or sale of assets or equity) its interest in this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, provided that so long as Manager is not then in material breach of default of this Agreement, Manager shall have the right, without Owner’s consent, to assign all or a portion of its rights and obligations under this Agreement to (a) any Affiliate of Manager, (b) any successor to Manager that may result from any merger, consolidation or reorganization, or (c) any individual or entity that acquires all or substantially all of the business assets of Manager. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. 14.09 Waiver No delay or omission in exercising any right or remedy will be deemed a waiver of any right or remedy. No waiver of any provision of this Agreement will constitute a waiver of any other provision of this Agreement, nor will any waiver constitute a continuing waiver unless so specified in writing executed by the party to be bound. 14.10 Counterparts; Facsimile Gold Mountain Golf Club Management Agreement 23 This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument, with the same effect as if the signatures thereto were in the same instrument. This Agreement will be effective and binding on the parties when both parties have executed and delivered a counterpart of this Agreement, it being agreed that facsimile signatures shall be binding on the parties. 14.11 Limited Restrictions on Manager Neither Manager nor any of its Affiliates is restricted from owning, operating, licensing, franchising, managing, advising, or otherwise associating in any way with any other hotel, time-share facility, interval ownership facility, vacation club, residential facility, food and beverage operation, or other business of any kind, whether or not such business may be considered competitive, directly or indirectly, with the Club Facilities, and Manager and its Affiliates are expressly permitted to engage in any or all of such activities, except that, Manager shall not manage or operate any golf course or golf club facilities in Kitsap County without Owner’s consent, such consent not to be unreasonably withheld, conditioned or delayed. 14.12 Non-Solicitation During the Term and for two (2) years following expiration or earlier termination of this Agreement, the City shall not directly or indirectly or a company hired by the City shall not directly or indirectly, solicit for separate employment the services of, any personnel of Manager. Notwithstanding the foregoing, if this Agreement is terminated for any reason, neither the City or any company hired by the City or the Manager shall interfere in any way with the decision of any personnel who has been continuously working at the Property for two (2) years (“Property Employee”), prior to the date of termination to either continue employment with the Manager or seek employment with the City or a company hired by the City. To allow any Property Employee to decide whether to continue as an employee of Manager or seek employment with the City or a company hired by the City, neither the Manager nor the City or a company hired by the City shall (a) offer any pay increase or other incentives to any Property Employee, (b) create a new position for any Property Employee, or (c) make disparaging remarks about the other party. 14.13 Patriot Act Each party represents, warrants and covenants that neither it nor any of its Affiliates (or any of their respective principals, partners or funding sources) is nor will become: (a) a person designated by the U.S. Department of Treasury’s Office of Foreign Asset Control as a “specially designated national or blocked person” or similar status; (b) a person described in Section 1 of U.S. Executive Order 13224 issued on September 23, 2001; (c) a person otherwise identified by a government or legal authority as a person with whom an owner or manager of a hotel is prohibited from transacting business; (d) directly or indirectly owned or controlled by the government of any country that is subject to an embargo by the United States government; or (e) a person acting on behalf of a government of any country that is subject to an embargo by the United States government. Each party shall notify the other in writing immediately upon the occurrence of any event which would render incorrect any of such party’s representations and warranties under this Section. 14.14 Duplicate Originals TThhiiss AAggrreeeemmeenntt mmaayy bbee eexxeeccuutteedd iinn dduupplliiccaattee oorriiggiinnaallss.. Gold Mountain Golf Club Management Agreement 24 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Exhibit A IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date. OWNER: City of Bremerton _________________________________________ By: Greg Wheeler Its: Mayor Date:__________________ MANAGER: Columbia Hospitality, Inc. _________________________________________ By: John Oppenheimer Its: President and CEO Date:__________________ Exhibit B Legal Description – The Club Facilities are situated on a portion of the following sections:W1/2 Section 1, T23N, R1WNE1/4 NE1/4 Section 2, T23N, R1WSE1/4 SE1/4 Section 35, T24N, R1WSW1/4 Section 36, T24N, R1W Exhibit B Exhibit B Maintenance Standards 1. Regular Maintenance In order for Golf Mountain Golf Club to continue its regard as a nationally known and well-respected golf destination, maintenance practices will remain in place to ensure the preservation of this reputation. Maintenance practices will include: A. Regular mowing of all turf, including greens, tees, fairways, roughs, collars and surrounds. B. Aerification of tees and greens at least twice per year C. Ongoing top-dressing of greens D. Ongoing sanding and seeding of tees, including driving range tees, in order to restore divots E. Ongoing sanding and seeding of fairways in order to restore divots F. Hole locations and tee locations shall be changed at least 5 days per week, as weather allows. G. Bunkers shall be raked at least three days per week, as weather allows. Bunkers shall be kept free of debris. H. Clubhouse surrounds to be kept clean, orderly and maintained on a year-round basis I. Parking lot to remain clean and free of debris on a year-round basis. Snow removal shall occur as necessary on entrance roads, parking lots and pedestrian walk ways. J. All restrooms to be cleaned and sanitized daily. K. Mowing heights, as weather allows, shall be maintained as follows: a. Greens speeds shall be a minimum of 9.5 feet on the stimp scale in season b. Fairways shall be maintained at or below .5 inches in season c. Rough shall be maintained at or below 2 inches in season d. All heights noted herein, may be adjusted when requested by tournament organizations. L. All equipment shall be proactively maintained in order to preserve life expectancy. Regular maintenance shall be performed in accordance with manufacturer recommendations, on all major equipment, including; mowers, carts, tractors, aerifiers, sprayers and top-dressing equipment. All maintenance service records shall be logged and saved. Records/logs shall be kept for each piece of major equipment. M. Mowing units shall be kept ground and sharpened in order to maintain proper turf conditions. N. All putting greens shall be proactively treated for disease on a year-round basis. O. Regular fertilizing practices shall be maintained in order to maintain turf health. P. All regulatory laws/rules shall be followed and proper reporting/training shall be maintained. Q. Hazardous trees will be removed by Manager’s maintenance team members, when the removal can be conducted safely. An outside contractor may be used for tree removal when the scope of the removal exceeds the limitations of the on-site team members. 2. Irrigation A. Manager will maintain the irrigation systems in order to maintain life expectancy of all components. Manager shall contract with irrigation specialists when maintaining pumps and pump stations. Manager will work with Owner’s Water Resource Manager to coordinate water usage and water pressure concerns. Exhibit B 3. Chemical Applications A. Manager will work closely with the Water Resource Division of Owner in the use of chemicals and their applications. A list of all pesticides and other chemicals shall be maintained by the manager including MsSDS information sheets, date and times of applications, the person who applied the chemicals and all other information required by regulatory agencies such as OSHA, DOL, DOE, L&I, EPA and any other city, county, state or federal agencies that would have enforcement authority. Exhibit C Exhibit C Manager’s Insurance Requirements To the extent commercially permissible or otherwise noted herein, the Manager and Owner shall be named insureds under the policies listed below. Deductibles, if any, for the following policies shall be subject to Manager’s prior review and approval. (a) Commercial General Liability insurance on an occurrence basis against claims for personal injury (including bodily injury or death) and tangible property damage occurring on, in or about the Club Facilities or otherwise arising under this Agreement in an amount not less than that generally provided in policies of insurance procured by operators of other Club Facilities in the same general region in which the Club Facilities are located, but in no event less than $1 million per occurrence and $2 million aggregate limit. This insurance must include bodily injury and property damage liability, independent contractors’ liability, contractual liability, products and completed operations liability, liquor liability for host and liquor legal liability, inn keepers legal liability and personal and advertising injury liability and shall be primary and non-contributory to any insurance maintained by either party. The policy will also include Premises Medical coverage with an applicable limit of $5,000. There shall be no deductible for this coverage. (b) Commercial automobile liability insurance on an accident basis against claims for injury or death to persons or damage with minimum limits of liability of $1 million combined single limit for each accident. Such insurance must include coverage for bodily injury liability, property damage liability, and the operation of owned, hired and non-owned vehicles. There shall be no deductible for this coverage. (c) Workers' compensation insurance as shall be required by and be in conformance with the applicable laws of the jurisdiction in which the Club Facilities are located, including employer's liability insurance with limits of not less than $1 million for each accident and disease for all of the employees involved in the Club Facilities’ operations. The Manager shall be the only named insured. (d) Excess or “umbrella” liability insurance no less broad than the underlying General Liability, Automobile Liability, and Employers Liability coverages set forth above on an occurrence basis providing excess coverage in a total amount no less than $15 million in the annual aggregate. The deductible or self-insured retention for this coverage shall not exceed $10,000. (e) Employment practices liability insurance (with an extended reporting period not less than one (1) year in the event that the coverage is given in a “claims made” form) in an amount not less than $2 million per occurrence/annual aggregate. The deductible or self-insured retention for this coverage shall not exceed $10,000. (f) To the extent determined by Manager to be economically feasible, insurance against business interruption and extra expense resulting from loss or damage from hazards to all property (real and personal). The Manager shall be the only named insured under this policy. (g) Comprehensive crime insurance, including employee dishonesty with a limit not less than $2 million per occurrence. (h) Contractor’s pollution coverage for Manager’s operation of the Club Facilities with minimum limits of liability of $2 million. The Manager shall be the only named insured under this policy. Exhibit C (i) Such other insurance in amounts as Manager and Owner in their reasonable judgment, deem advisable for protection against claims, liabilities and losses arising out of or connected with the Club Facilities. Exhibit D Exhibit D: Centralized Services Fees Accounting - $4,583 per month / $55,000 annually People and Culture (Human Resources) - $2,642 per month / $31,704 annually Marketing - $667 per month / $8,004 annually Public Relations/Social Media - $500 per month / $6,000 annually Beginning January 1, 2021, the above amounts will increase no more than four percent (4%) per year and will be included as part of the Annual Plan and Budget Gold Mountain Golf Club Golf Management Agreement Proposal Summary Initial Proposed Description Initial CHI Proposal CHI Proposal Negotiated Proposal CHI Delta Base Management Fee 5.0% of Gross Revenue 238,002 4.25% of Gross Revenue 202,301 (35,701) Incentive Management Fee 40% of Net Operating Income 59,170 20% of NOI ($600-650k)7,206 (51,964) in excess of $500k 25% of NOI ($650-700k) 30% of NOI ($700-750k 40% of NOI (greater than $750k) Total Cost of Management 297,172 209,507 (87,665) Reserve Fund Set Aside 3.0% of Gross Revenue 142,801 4.0% of Gross Revenue 190,401 47,600 "Non-Solicitation"Existing staff can not be retained Rules of Engagement for staff retention Indemnification Language Risk heavily weighted to City Revised and accepted by COB 1. Total Cost of Management reduced by $87,664. 2. Reserve Set Aside increased by $47,600. Mayor Grey Wheeler Norm Dicks Building-City of Bremerton 345 6th Street, Suite 600 Bremerton, WA 98337 July 5, 2019 Dear Sir, I am a marketing representative for Uniformed Services Family Health Plan, a TRICARE option for military families in the Puget Sound area. Part of my job is providing guidance and counsel to military families regarding their TRICARE healthcare options and in doing so I hold monthly meetings in Bremerton at the Kitsap Conference Center and have been doing so for the past 3 years. The Columbia Hospitality team has been instrumental in ensuring that my dates and times requested for these meetings are always available and if there was ever a conflict they would communicate with me with alternative dates, times and locations but all in all they have had a positive impact on all my venues as well as the attendees who attend my meetings. The Columbia Hospitality team is very accommodating and communicative. I believe that this is their mission to work closely with their customers and provide a positive experience and furthermore it is my belief that they will continue to practice this standard now and in the future with any organization that they provide service to. I understand that it is your ultimate decision to find the best management team to oversee the operations of the Kitsap Conference Center but as I said you already have the best team in place. The old saying “if it’s not broken…why fix it?” If you have any questions do not hesitate to contact me at (206) 445-9701 or e-mail marks@pacmed.org. Thank you for your time and consideration. Sincerely, Mark A Slavik Dear Mayor Wheeler, I am writing to you regarding your beautiful Gold Mountain Golf Club. In my opinion the best public golf facility in the Pacific Northwest. I have been working with Gold Mountain for over 15 years and my primary business is the management and execution of corporate and charity golf outings. In my 15 years in the corporate golf industry I have visited and worked with over 150 golf courses. Gold Mountain has something special. For one, the management team all the way down to the hourly employee operates and represents themselves on a first-class level. The environment that Columbia Hospitality has created and along with the top-notch team members Gold Mountain has set itself apart from the rest. Course conditions, service, execution, and the ability to meet all tournament needs are just a few reasons we partner with Gold Mountain on an annual basis. I own two small businesses in the North Puget Sound Area and just like Gold Mountain we focus on community. Gold Mountain has the communal feel as those that work at the facility are community residents. This factor plays a huge role in the success of the golf course and experience for the guests. Overall, I consider Gold Mountain part of my extended work family and look forward to working with Columbia Hospitality and Gold Mountain for many years to come. If I can provide more feedback or additional information, please reach out to me at the below contact info. Brian Remington Golf & Corporate Solutions, Principal 190 W Dayton St, Suite 104 Edmonds, WA 98020 brian@golfcorpsolutions.com 206.372.1525 1 Melinda Monroe From:Holland EK <60holland54@gmail.com> Sent:Friday, June 28, 2019 7:06 AM To:Greg Wheeler Cc:Melinda Monroe Subject:Gold Mountain Golf Complex and Columbia Hospitality Dear Mayor Wheeler, As a member of Gold Mountain Ladies Club, I want to express my gratitude and support to the Gold Mountain, Columbia Hospitality staff for their excellent work serving our community and many visitors from our region and beyond. The Columbia Hospitality Food Service staff have been providing excellent service and food for our weekly women’s golf events and buffet luncheons for our monthly tournaments. Jesse McGee is excellent to work with, and helps us to insure everything is perfect with the room, food, beverages and service. Jesse and the food service staff are indispensable to us when we sponsor our Gold Mountain Ladies Club Invitational Tournament when we invite over 120 guests from our region to play at Gold Mountain. The Columbus Hospitality Professional Golf staff members at Gold Mountain GC are always very professional and helpful, guiding us to create successful tournaments and enjoy playing golf. Daryl Matheny John Sitton, Travis Cary and Mark Knowles significantly contribute to improving our golf skills and playing abilities, by providing individual as well as group instruction. Mark Knowles has created innovative classes that I have benefited from for over 3 years. I also benefited from Ted Naff’s instruction. They are a great team working to help us enjoy playing golf. They are indispensable guiding us to create effective and fun golf tournaments for example our Ladies Club Invitational when we invite players throughout our region to play at Gold Mountain GC. They arrange tournaments for a variety of educational organizations, e.g., UW Huskies, Mountain West (colleges & Universities), social organizations, e.g., Veterans, Kitsap Mental Health, PNGA and WSGA, US Amateur, and corporations, to name a few. Over the course of nine years, I have thoroughly enjoyed my experiences at Gold Mountain GC. There are many opportunities to volunteer for tournaments held at Gold Mountain and meet other members of our local golf community. One of our Ladies Club members died a couple of years ago, it is a testament to relationships that build through golf that her family had her memorial at Gold Mountain. It was a touching tribute to an amazing woman who affected many lives. Golf tends to bring all kinds of people together in the pursuit of enjoying this arguably silly game. While playing with a variety of people, we experience adversity as well as joy, we share in challenges and hazards, sometimes we laugh or cry, and keep coming back for more, often because of the people we get to know and desire to keep improving ourselves and our game. The staff at Gold Mountain are integral to keep us coming back, they are an integral part of our community and friends. Kind regards, Erenn Kiriaell Sent from my iPhone 1 Melinda Monroe From:Scott Houmes <scott@silvercitybrewery.com> Sent:Thursday, June 27, 2019 3:55 PM To:Greg Wheeler Cc:Melinda Monroe; Shawn Cucciardi (scucciardi@columbiahospitality.com) Subject:Columbia Hospitality Mayor Wheeler, It is my understanding that the contracts for Columbia Hospitality, Inc. are in the process of renewal for Gold Mountain Golf Club and The Kitsap Conference Center. I thought it would be beneficial for you to understand the positive working relationship your local Bremerton Brewery has had with Columbia Hospitality. Silver City Brewery has had positive relationships with both properties for eight years. Since Columbia has taken over the management of these properties our synergistic relationship has not only increased revenue for both entities but we have been able to provide multiple win‐win decisions that has resulted in great feedback from the community. Columbia’s management has brought several groups of team members here to the brewery to learn more about craft beer which has enable them to understand and communicate the advantages of providing local, award winning craft beer to the local clientele as well as the visiting guests to the region. As the sixth largest craft brewery in the state it greatly benefits Silver City having a relationship to work with people who understand the importance of having the knowledge and salesmanship in order to promote on of Bremerton’s treasured business’s. From our perspective it is very rewarding to work with a management team that values staff training. As someone who has spent over 20 years in the hospitality industry, I believe Columbia Hospitality has taken training to the next level. Their commitment to a high level of service as well as how well they keep their facilities shows that they are proud of their work. We are proud to partner with people who work hard to earn the hard working dollars or our great community. I believe that Columbia Hospitality has the right culture, understanding and synergy that it takes to help build, promote and cultivate long standing relationships that help continue building Bremerton as a destination for future tourism as well as taking care of it’s base of local guests. Silver City Brewery highly recommends that you continue your working relationship with Columbia Hospitality and its team. I appreciate your support. All the best. Sincerely, Scott Houmes ‐ Owner Silver City Brewery 360.265.3442 1 Melinda Monroe From:sdecoy@wavecable.com Sent:Thursday, June 27, 2019 10:35 AM To:Greg Wheeler Cc:Melinda Monroe Subject:Letter of Support For Columbia Hospitality and Gold Mountain Staff Dear Mayor Wheeler, My name is Steve DeCoy, and I am the President of the Gold Mountain Men’s Club. We currently are almost 500 members strong and have a wonderful relationship with the golf course and their management. It is through their love of golf and support to our club that we have been able to grow the last six years when other courses are struggling to not lose members. I would like to express my support for the renewal of the contract with Columbia Hospitality and the employees that are currently employed by them to run Gold Mountain. I have been a member there since the early 80s and have always liked the local feel that you got when you played there, including the interactions with the pro shop and the restaurant. Six years ago, like many others, I had great reservations about the city contracting out the management of running GM, fearing the loss of that locally ran atmosphere. Now six years later I am so pleased with the manner in which Columbia Hospitality and Daryl and his crew have kept the personal feel there but also added a very professional feel to the facilities. I have been involved with hosting tournaments and banquets as well as attending friends’ weddings there and all of the events have been perfectly organized and well received by the patrons. I play a lot of golf around the region, and whenever I mention that I am from Gold Mountain the respect and compliments that are given by the other course’s professionals is a testament that they are doing something right and sustainable. In closing the men’s club would appreciate a renewal of the current contract with Columbia Hospitality as well as Daryl and his outstanding crew to insure the health of our club and facilities. Thank You, Steve DeCoy Gold Mountain Men’s Club President 1 Melinda Monroe From:Andrews Nate -OHS <NATEA@ckschools.org> Sent:Monday, July 1, 2019 8:54 AM To:Greg Wheeler Cc:Melinda Monroe Subject:Golf Mountain and Columbia Hospitality Mayor Wheeler, I wanted to send a quick email in support of the Columbia Hospitality (CH) team out at Gold Mountain Golf Club. It’s my understanding that the contract between the City of Bremerton and CH will be up for bid again here very soon. I would certainly hope CH is give strong consideration to continue operations and management of the facility. I have had the pleasure of working with several of the key members of the current team in scheduling and planning an annual golf tournament fundraiser that benefits local youth and high school baseball programs. We just hosted our 5th tournament in as many years and it was a total success, as it has been in the past. I sincerely appreciate the professional services provided, the quality of the facility overall and the talented staff members that make the experience one to remember. As you likely know and understand, I truly value the CH team for their involvement in our local community. Most of the folks live in our neighborhoods and are active contributors to a growing and ever‐changing community. It’s my hope that we can continue working with the CH team in the future. Thank you for your dedication to the City of Bremerton and the greater Kitsap region and I wish you the best in the future. Nate Andrews M.Ed. CAA Athletic Director Olympic High School 360‐662‐2711 LIKE US FOLLOW US AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Ordinance No. 5388 amending Ordinance No. 5360 establishing City of Bremerton FY-2019 Budget as amended by Ordinance No. 5367 Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: Finance Presenter: Caroline Tompson Phone: (360) 473-5209 SUMMARY: This is a year-end housekeeping action. The Bremerton City Council adopted the 2019 Annual City Budget by Ordinance 5360 on November 20, 2018 and later amended the budget by Ordinance 5367 on June 5, 2019. In preparation for wrapping up 2019, it is necessary to do a final amendment to the budget to incorporate Council actions and other unforeseen items that have arisen subsequent to the last amendment. This amendment is necessary to provide adequate expenditure authority for various City funds and departments. ATTACHMENTS: • Ordinance No. 5388 amending the 2019 Fiscal Year Budget • Exhibit A – 2019 All Funds Revenue & Expenditures • Detailed supporting schedules by fund FISCAL IMPACTS (Include Budgeted Amount): Overall 2019 budget will be $179,742,838 (inclusive of fund balances). STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve Ordinance No. 5388 of the City Council of the City of Bremerton, Washington, amending Ordinance No. 5360 establishing the City of Bremerton’s Fiscal Year 2019 budget as amended by Ordinance No. 5367. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A17 1 2019 Final Budget Amendment ORDINANCE NO. 5388____ AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Ordinance No. 5360 establishing the City of Bremerton’s Fiscal Year 2019 budget as amended by Ordinance No. 5367. WHEREAS, the City Council passed the Fiscal Year 2019 City Budget Ordinance No. 5360 on November 20, 2018; and WHEREAS, the City Council subsequently amended the Fiscal Year 2019 City Budget by Ordinance No. 5367 on June 5, 2019 to provide for certain programs and actions taken up to that point requiring amendment to the 2019 budget; and WHEREAS, the City Council has previously amended the budget by various motions and resolutions subsequent to June 5, 2019 which require a formal amendment by ordinance; and WHEREAS, several City Departments and Funds are experiencing or anticipate additional expenses due to factors such as costs related to provision of contracted services, changed allocations of staff time; and WHEREAS, several City Departments and Funds require adjustment to revenues to reflect activity in 2019 or timing changes from that which was anticipated in the 2019 budget; and WHEREAS, certain reclassifications of revenues and expenditures are required to properly reflect budget categories in a manner consistent with actuals in accordance with BMC 3.0.010; and WHEREAS, each of these actions has an impact on the City of Bremerton’s FY 2019 Annual Budget resulting in the need to amend this Budget document; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Ordinance No. 5360 establishing the City of Bremerton’s 2019 Budget as amended by Ordinance No. 5367 is hereby amended as follows: (1) regular revenues and unencumbered fund balances of $179,742,838, the total for each fund as set forth in Exhibit A, attached hereto and incorporated herein by this reference, and (2) in accordance with BMC 3.02.010, expenditures and ending fund balances of $179,742,838 as set forth in Exhibit A SECTION 2. The totals for the funds noted in Exhibit A are hereby appropriated for the fiscal year 2019. 2 2019 Final Budget Amendment SECTION 3. Corrections. The City Clerk and codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener, clerical, typographical, and spelling errors, references, ordinance numbering, section/subsection numbers and any references thereto. SECTION 4. Severability. If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION 5. Effective Date. This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. PASSED by the City Council the___________ day of ____________________, 2019 _________________________________ ERIC YOUNGER, Council President Approved this ________ day of ________________________, 2019 ________________________________ GREG WHEELER, Mayor ATTEST: APPROVED AS TO FORM: __________________________________ ________________________________ ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the________ day of ______________________, 2019 EFFECTIVE the_________day of ______________________, 2019 ORDINANCE NO. ______ BEG LIC. INTER- CHARGES FINES 2019 FUND AND GOV'T FOR AND OTHER TOTAL FUND BAL. TAXES PERMITS REVENUE SERVICEFORFEITS REVENUE BUDGET General Fund General Government: City Council 00 0139,001 00139,001 Executive 00 0131,511 00131,511 Financial Services 00 0740,912 00740,912 Legal 00 0537,546 00537,546 Human Resources 00 0249,199 00249,199 Community Development 3,284,250 1,075,800 200,000 461,500 50,000 0 5,071,550 Municipal Court 0018,857 199,900 259,250 32,045 510,052 City Auditor 00 032,178 0032,178 Law Enforcement 0 6,500 218,130 159,100 2,000 11,000 396,730 Fire/Emergency Medical 1,301,697 1,550 745,368 670,350 6,000 5,010 2,729,975 Police & Fire Pension 0062,341 00 062,341 General Facilities 00 0176,281 0 522,100 698,381 Parks 0 200 15,000 254,000 0 70,900 340,100 Engineering 0 49,000 0 1,755,647 001,804,647 Non-Departmental 28,209,505 27,000 845,450 92,044 800,000 106,100 30,080,099 Beginning Fund Balance 11,194,478 11,194,478 Total General Fund 11,194,478 32,795,452 1,160,050 2,105,146 5,599,169 1,117,250 747,155 54,718,700 Special Revenue Funds: Street 776,300 750,000 0 910,015 95,000 0 994,100 3,525,415 Contingency Reserve 1,298,269 0000042,975 1,341,244 Lodging Tax 474,660 650,000 00004,000 1,128,660 Parking System 836,009 0000425,000 1,443,000 2,704,009 Comm. Dev. Block Grant 41,612 00723,904 71,919 0 79,500 916,935 Abatement Revolving Fund 284,278 000025,000 500 309,778 Police Special Projects 328,762 000015,000 3,500 347,262 Public Access Television 686,503 0 273,000 0 123,047 0 54,600 1,137,150 Gift & Donations Fund 86,226 0000011,200 97,426 Trial Improvement 72,932 0022,000 00500 95,432 One Percent for Arts 29,263 00 011,500 0 3,700 44,463 Conference Center Oper 224,931 00 01,498,846 0 493,695 2,217,472 Total Spec. Rev. Funds 5,139,745 1,400,000 273,000 1,655,919 1,800,312 465,000 3,131,270 13,865,246 Debt Service Fund: 2010 LTGO 173,200 330,000 0 101,040 0076,500 680,740 2010 UTGO/LTGO (B) 103,523 780,000 0 29,975 00174,000 1,087,498 Government Center LTGO 77,385 00000341,500 418,885 2015 Public Safety Bond 55,715 480,000 00001,000 536,715 2019 Refunding LTGO 0 131,252 131,252 Total Debt Service Fund 409,823 1,590,000 0 131,015 0 0 724,252 2,855,090 Capital Improvement Funds: General Govt Capital Improv. 2,739,879 1,800,000 000020,000 4,559,879 Park Facilities Construction 223,748 0000062,250 285,998 Residential Street & Sidewalk Fund 1,142,106 1,017,379 125,000 000107,000 2,391,485 Transportation Projects Fund 948,353 417,379 0 3,465,581 001,634,769 6,466,082 Fire Public Safety Capital 1,080,815 000005,000 1,085,815 Lebo Blvd Fund 234,454 000003,546 238,000 Affordable Housing Capital Fund 0 00000101,104 101,104 Total Capital Improv. Funds 6,369,355 3,234,758 125,000 3,465,581 0 0 1,933,669 15,128,363 Total General Gov't Funds 23,113,401 39,020,210 1,558,050 7,357,661 7,399,481 1,582,250 6,536,346 86,567,399 2019 REVENUE - ALL FUNDS Amended by Ordinance No. 5388 Exhibit A BEG LIC. INTER- CHARGES FINES 2019 FUND AND GOV'T FOR AND OTHER TOTAL FUND BAL. TAXES PERMITS REVENUE SERVICEFORFEITS REVENUE BUDGET 2019 REVENUE - ALL FUNDS Amended by Ordinance No. 5388 Exhibit A Enterprise Funds: Water Utility 3,989,773 00 013,910,775 50,000 543,000 18,493,548 Water Capital 5,413,252 000004,484,966 9,898,218 Wastewater Utility 2,250,449 102,000 0015,915,450 18,000 47,000 18,332,899 Wastewater Capital 10,358,795 000002,917,339 13,276,134 Stormwater Utility 634,803 0023,000 4,130,288 10,000 10,500 4,808,591 Stormwater Capital 3,942,176 00101,000 002,101,209 6,144,385 Utility Debt Reserve 1,649,795 0000014,500 1,664,295 Gold Mountain Golf Complex 285,095 00 04,429,730 0 16,500 4,731,325 Total Enterprise Funds 28,524,138 102,000 0 124,000 38,386,243 78,000 10,135,014 77,349,395 Internal Service Funds: Risk Management 2,731,265 000001,847,336 4,578,601 Employment Security 317,510 000004,000 321,510 Accumulated Leave Liability 163,047 00000543,000 706,047 ER&R Operations & Maint. 78,894 00 01,868,227 0 3,000 1,950,121 ER&R Equipment Reserve 4,423,572 000001,510,878 5,934,450 Information Services 406,306 00 01,676,009 0 253,000 2,335,315 Total Internal Service Funds 8,120,594 0 0 0 3,544,236 0 4,161,214 15,826,044 Total Business Type Funds 36,644,732 102,000 0 124,000 41,930,479 78,000 14,296,228 93,175,439 Total All Funds 59,758,133 39,122,210 1,558,050 7,481,661 49,329,960 1,660,250 20,832,574 179,742,838 1/0/1900 2019 SUPPLIES & DEBT CAPITAL ENDING TOTAL FUND PERSONNEL SERVICES SERVICE OUTLAY TRANSFERS FUND BAL. BUDGET General Fund General Government: City Council 326,200 58,287 000 384,487 Executive 283,200 75,618 000 358,818 Financial Services 1,255,200 310,640 000 1,565,840 Legal Department 1,252,900 287,078 000 1,539,978 Human Resources 486,800 199,821 000 686,621 Community Development 1,678,300 623,242 0075,000 2,376,542 Municipal Court 939,396 558,943 000 1,498,339 City Auditor 81,300 8,085 000 89,385 Law Enforcement 10,121,200 1,711,452 000 11,832,652 Fire/Emergency Medical 9,456,200 1,200,919 000 10,657,119 Police & Fire Pension 1,377,000 392,700 000 1,769,700 General Facilities 499,700 1,177,921 0 200,000 0 1,877,621 General Parks 2,276,781 815,501 000 3,092,282 Engineering 2,328,300 351,880 000 2,680,180 Non-Departmental 155,000 3,565,096 001,417,179 5,137,275 Ending Fund Balance 9,171,861 9,171,861 Total General Fund 32,517,477 11,337,183 0 200,000 1,492,179 9,171,861 54,718,700 Special Revenue Funds: Street 1,461,350 1,853,174 0 20,000 0 190,891 3,525,415 Contingency Reserve 000001,341,244 1,341,244 Lodging Tax 0 479,000 00350,000 299,660 1,128,660 Parking System 0 1,153,973 523,408 65,000 171,500 790,128 2,704,009 Comm. Dev. Block Grant 147,100 407,832 00310,842 51,161 916,935 Abatement Revolving Fund 0 83,660 000226,118 309,778 Police Special Projects 0 115,700 0 60,000 0 171,562 347,262 Public Access Television 385,000 72,140 0 100,000 0 580,010 1,137,150 Gift & Donations Fund 0 28,000 00069,426 97,426 Trial Improvement 0 26,000 00069,432 95,432 One Percent for Arts 0 18,000 00026,463 44,463 Conference Center Oper 0 1,891,412 100,000 00226,060 2,217,472 Total Spec. Rev. Funds 1,993,450 6,128,891 623,408 245,000 832,342 4,042,155 13,865,246 Debt Service Fund: 2010 LTGO 00532,766 0 123,336 24,638 680,740 2010 UTGO/LTGO (B)001,053,902 0 7,916 25,680 1,087,498 Government Center LTGO 00335,563 0083,322 418,885 2015 Public Safety Bond 00499,400 0037,315 536,715 2019 Refunding LTGO 131,252 131,252 Total Debt Service Fund 0 0 2,421,631 0 131,252 302,207 2,855,090 Capital Improvement Funds: General Govt Capital Improv.00002,269,556 2,290,323 4,559,879 Park Facilities Construction 0 39,500 0 140,515 0 105,983 285,998 Residential Street & Sidewalk Fund 358,100 406,242 0 445,000 0 1,182,143 2,391,485 Transportation Projects Fund 0 1,148,984 0 4,330,535 0 986,563 6,466,082 Fire Public Safety Capital 000981,531 0 104,284 1,085,815 Lebo Blvd Fund 0000238,000 0 238,000 Affordable Housing Capital Fund 0 100,000 0001,104 101,104 Total Capital Improv. Funds 358,100 1,694,726 0 5,897,581 2,507,556 4,670,400 15,128,363 Total General Gov't Funds 34,869,027 19,160,800 3,045,039 6,342,581 4,963,329 18,186,623 86,567,399 2019 EXPENDITURES - ALL FUNDS Amended by Ordinance No. 5388 Exhibit A 1/0/1900 2019 SUPPLIES & DEBT CAPITAL ENDING TOTAL FUND PERSONNEL SERVICES SERVICE OUTLAY TRANSFERS FUND BAL. BUDGET 2019 EXPENDITURES - ALL FUNDS Amended by Ordinance No. 5388 Exhibit A Enterprise Funds: Water Utility 4,598,700 7,783,663 965,121 0 3,544,366 1,601,698 18,493,548 Water Capital 0 347,100 0 4,179,179 0 5,371,939 9,898,218 Wastewater Utility 3,448,000 8,535,526 2,557,688 0 2,046,739 1,744,946 18,332,899 Wastewater Capital 0 60,000 0 9,145,000 0 4,071,134 13,276,134 Stormwater Utility 1,467,776 2,282,954 154,575 0 434,649 468,637 4,808,591 Stormwater Capital 0 25,000 0 3,170,747 0 2,948,638 6,144,385 Utility Debt Reserve 000001,664,295 1,664,295 Gold Mountain Golf Complex 0 4,040,753 436,230 12,500 0 241,842 4,731,325 Total Enterprise Funds 9,514,476 23,074,996 4,113,614 16,507,426 6,025,754 18,113,129 77,349,395 Internal Service Funds: Risk Management 700,000 1,548,491 0002,330,110 4,578,601 Employment Security 100,000 0000221,510 321,510 Accumulated Leave Liability 600,000 0000106,047 706,047 ER&R Operations & Maint 543,900 1,352,047 00054,174 1,950,121 ER&R Equipment Reserves 0 2,761 0 1,988,754 0 3,942,935 5,934,450 Information Services 903,300 823,326 000608,689 2,335,315 Total Internal Service Funds 2,847,200 3,726,625 0 1,988,754 0 7,263,465 15,826,044 Total Business Type Funds 12,361,676 26,801,621 4,113,614 18,496,180 6,025,754 25,376,594 93,175,439 Total All Funds 47,230,703 45,962,421 7,158,653 24,838,761 10,989,083 43,563,217 179,742,838 CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE GENERAL FUND For the Year Ended December 3 l, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ 8,891,627 $ 8,891,627 $ Retail Sales 9,600,000 9,600,000 Other 14.303,825 14,303,825 Licenses and Permits 1,160,050 1,160,050 Intergovernmental 2,105,146 2,105,146 Charges for Services 5,599,169 5,599,169 Fines and Forfeitures 1,117,250 1,117,250 Miscellaneous 281,155 281,155 Transfers In & Other Financing 466,000 466,000 Total Revenues 43,524,222 43,524,222 EXPENDITURES Personnel Expenses 32,527,877 32,517,477 (10,400) Supplies, Services, and Taxes 11,214,183 11,337,183 123,000 Capital Expenditures 180,000 200,000 20,000 Debt Service Transfers Out 1,492,179 1,492,179 Total Expenditures 45,414,239 45,546,839 132,600 CHANGES IN FUND BALANCE Net change in fund balances (1,890,017) (2,022,617) (132,600) Fund Balances-beginning 11,194,478 11,194.478 Fund Balances-ending $ 9,304,461 $ 9,171,861 $ (132,600} GENERAL FUND EXPENDITURES BY DEPARTMENT City Council $ 381,887 384,487 $ 2,600 Executive 358,818 358,818 Financial Services 1,561,840 1,565,840 4,000 Legal Department 1,539,978 1,539,978 Human Resources 686,621 686,621 Community Development 2,376,542 2,376,542 Municipal Court 1,486,339 1,498,339 12,000 City Auditor 89,385 89,385 Police Department 11,825,652 11,832,652 7,000 Fire Department 10,657,119 10,657,119 Police & Fire Pension 1,697,700 1,769,700 72,000 General Facilities 1,842,621 1,877,621 35,000 Parks & Recreation 3,092,282 3,092,282 Engineering 2,680,180 2,680,180 Non-Departmental 5,137,275 5,137,275 Total Expenditures $ 45,414,239 $ 45,546,839 $ 132,600 Per the City's Financial Goals and Policies, the target ending fund balance is 8.5% of annual expenditures excluding capital. The target fund balance for the 2019 budget, as amended, is $3,854,481. The actual ending fund balance after the proposed amendments is $9,171,861 which is higher than the target amount by $5,317,380. The 2019 budget as proposed, includes an ending fund balance which exceeds the target, and is decreased from the previously amended budget by $132,600. The financial planning goal is to maintain an ending fund balance recommended by the Government Finance Officers Association (GFOA) of 16.67%, or $7,559,318. The proposed budget with amendments, meets this recommendation. FUND 001 CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE GENERAL FUND For the Year Ended December 31, 2019 Budget Adjustments: Items Previously Approved by Council or Finance Committee Expenditure -Increase personnel in City Council for Council salary adjustment Expenditure -Increase capital for design of Naval Museum dehumidifier project (carryover from 2018) New Items Not Previously Approved by Council Expenditure • Increase supplies & services in Court for Public Defender costs that may exceed contract amount Expenditure -Increase personnel in Police & Fire Pension for medical and pension payments Expenditure • Increase supplies & services in Pension for costs associated with long-term care Expenditure • Decrease personnel in Legal and reallocate to supplies for unanticipated professional services Expenditure • Increase supplies & services in Legal for unanticipated professional services Expenditure -Increase supplies & services for equipment interfund associated with totaled police car Expenditure· Increase personnel in Facilities for overtime associated with NDGC building improvements Expenditure -Decrease personnel in Fire and reallocate to supplies due to increases in medical supplies Expenditure • Increase supplies and services in Fire due to increases in medical supplies Expenditure -Increase supplies and services in Finance due to increase in State Audit fees Net adjustment to ending fund balance required FUND 001 $ (2,600) (20,000) (12,000) (27,000) (45,000) 40,000 (40,000) (7,000) (15,000) 15,000 (15,000) (4,000) (132,600) CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE STREET FUND For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other 750,000 750,000 Licenses and Permits Intergovernmental (fuel tax) 910,015 910,015 Charges for Services 95,000 95,000 Fines and Forfeitures Miscellaneous 20,500 20,500 Transfers in & Other Revenue 973,600 973,600 Total Revenues 2,749,115 2,749,115 EXPENDITURES Personnel Expenses 1,461,350 1,461,350 Supplies, Services, and Taxes 1,835,674 1,853,174 17,500 Capital Expenditures 20,000 20,000 Debt Service Transfers Out Total Expenditures 3,317,024 3,334,524 17,500 CHANGES IN FUND BALANCE Net change in fund balances (567,909) (585,409) (17,500) Fund Balances-beginning 776,300 776,300 Fund Balances-ending $ 208,391 $ 190,891 $ (17,500) Budget Adjustments: Items Previously Approved by Council Expenditure -Increase supplies and services for equipment interfund for snow plow blade New Items Not Previously Approved by Council Net adjustment to ending fund balance required FUND 102 (17,500) $ (17,500) ---'--"----'- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE COMMUNITY DEVELOPMENT BLOCK GRANT For the Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Budget Budget 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental 723,904 723,904 Charges for Services 45,919 71,919 Fines and Forfeitures Miscellaneous 4,500 4,500 Transfers in 75,000 75,000 Total Revenues 849,323 875,323 EXPENDITURES Personnel Expenses 147,100 147,100 Supplies, Services, and Taxes 280,811 407,832 Capital Expenditures Debt Service Transfers Out 412,913 310,842 Total Expenditures 840,824 865,774 CHANGES IN FUND BALANCE Net change in fund balances 8,499 9,549 Fund Balances-beginning 41,612 41,612 Fund Balances-ending $ 50,111 $ 51,161 $ Budget Adjustments: Items Previously Approved by Council Items Not Previously Approved by Council Revenue -Increase charges for services for BHA Joan payoffs Expenditure -Increase supplies and services for Housing Market Analysis Expenditure -Decrease capital and reallocate to supplies (technical correction) Adj Required From The Amended Budget 2019 26,000 26,000 127,021 (102,071) 24,950 1,050 1,050 Expenditure -Increase supplies and services for weatherization programs (technical correction) Net adjustment required to the ending fund balance FUND 106 26,000 (24,950) 102,071 (102,071) $ ___ 1""'",o_s_o_ CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE ABATEMENT REVOLVING FUND For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures 25,000 25,000 Miscellaneous 500 500 Transfers in Total Revenues 25,500 25,500 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 57,500 83,660 26,160 Capital Expenditures Debt Service Transfers Out Total Expenditures 57,500 83,660 26,160 CHANGES IN FUND BALANCE Net change in fund balances (32,000) (58,160) (26,160) Fund Balances-beginning 284,278 284,278 Fund Balances-ending $ 252,278 $ 226,118 $ (26,160) Budget Adjustments: Items Previously Approved by Council Expenditure -Increase supplies and services for demolition costs associated with 1317 N Lafayette (26,160) Net adjustment to ending fund balance required $ (26,160) ---'----'----'- FUND 108 CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE GIFT AND DONATION FUND For the Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Budget Budget 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 11,200 11,200 Transfers in Total Revenues 11,200 11,200 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 22,000 28,000 Capital Expenditures Debt Service Transfers Out Total Expenditures 22,000 28,000 CHANGES IN FUND BALANCE Net change in fund balances (10,800) (16,800) Fund Balances-beginning 86,226 86,226 Fund Balances-ending $ 75,426 $ 69,426 $ Budget Adjustments: Items Not Previously Approved by Council Expenditure -Increase Parks Donations supplies and services for Park improvements Net adjustment to ending fund balance required FUND 114 Adj Required From The Amended Budget 2019 6,000 6,000 (6,000) (6,000) (6,000) $ (6,000) ----"------- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE 2010 LTGO For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales 330,000 330,000 Other Licenses and Permits Intergovernmental 101,040 101,040 Charges for Services Fines and Forfeitures Miscellaneous 1,500 1,500 Transfers in 75,000 75,000 Total Revenues 507,540 507,540 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes Capital Expenditures Debt Service 532,766 532,766 Transfers Out 123,336 123,336 Total Expenditures 532,766 656,102 123,336 CHANGES IN FUND BALANCE Net change in fund balances (25,226) (148,562) (123,336) Fund Balances-beginning 173,200 173,200 Fund Balances-ending $ 147,974 $ 24,638 $ (123,336) Budget Adjustments: New Items Not Previously Approved by Council Expenditure -Increase transfer-out to Fund 2017 for fund balance associated with debt refinancing Net adjustment required to the ending fund balance FUND 203 (123,336) $ _ __,(~l 2_3;;._,33_6.._) CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE 2010 UTGO/LTGO (B) For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 REVENUES Taxes Property $ 780,000 $ 780,000 $ Sales Other Licenses and Permits Intergovernmental 29,975 29,975 Charges for Services Fines and Forfeitures Miscellaneous 2,500 2,500 Transfers in 171,500 171,500 Total Revenues 983,975 983,975 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes Capital Expenditures Debt Service 1,053,302 1,053,902 Transfers Out 7,916 Total Expenditures 1,053,302 1,061,818 CHANGES IN FUND BALANCE Net change in fund balances (69,327) (77,843) Fund Balances-beginning 103,523 103,523 Fund Balances-ending $ 34,196 $ 25,680 $ Budget Adjustments: New Items Not Previously Approved by Council Expenditure -Increase debt service for fiscal agent fees 2019 600 7,916 8,516 (8,516) (8,516) Expenditure -Increase transfer-out to Fund 2017 for balance associated with debt refinancing Net adjustment required to the ending fund balance FUND 204 (600) (7,916) $ __ .,_(8.a._,5_16-""-) CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE GOVERNMENT CENTER LTGO For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 1,500 1,500 Transfers in & Other Revenue 340,000 340,000 Total Revenues 341,500 341,500 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes Capital Expenditures Debt Service 335,263 335,563 300 Transfers Out Total Expenditures 335,263 335,563 300 CHANGES IN FUND BALANCE Net change in fund balances 6,237 5,937 (300) Fund Balances-beginning 77,385 77,385 Fund Balances-ending $ 83,622 $ 83,322 $ (300) Budget Adjustments: Items Not Previously Approved by Council Expenditure -Increase debt service for fiscal agent fees Net adjustment required to the ending fund balance FUND 205 (300) $ (300) ----~ CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE 2015 PUBLIC SAFETY BOND FUND For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ 480,000 $ 480,000 $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 1,000 1,000 Transfers in & Other Revenue Total Revenues 481,000 481,000 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes Capital Expenditures Debt Service 499,100 499,400 300 Transfers Out Total Expenditures 499,100 499,400 300 CHANGES IN FUND BALANCE Net change in fund balances (18,100) (18,400) (300) Fund Balances-beginning 55,715 55,715 Fund Balances-ending $ 37,615 $ 37,315 $ (300) Budget Adjustments: New Items Not Previously Approved by Council Expenditure -Increase debt service for fiscal agent fees Net adjustment required to the ending fund balance FUND 206 (300) $ (300) -----'--"'- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE 2019 REFUNDING LTGO For the Year Ended December 3 1, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous Transfers in & Other Revenue 131,252 131,252 Total Revenues 131,252 131,252 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes Capital Expenditures Debt Service Transfers Out Total Expenditures CHANGES IN FUND BALANCE Net change in fund balances 131,252 131,252 Fund Balances-beginning Fund Balances-ending $ $ 131,252 $ 131,252 Budget Adjustments: Items Previously Approved by Council Revenue -Increase transfer-in from Funds 203 and 204 for fund balance associated with debt refinancing 131,252 Net adjustment required to the ending fund balance $ 131,252 ------- FUND 207 CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE GENERAL GOVERNMENT CAP IT AL IMPROVEMENT FUND Forthe Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Budget Budget 2019 2019 REVENUES Taxes Property $ $ Sales Other (Real Estate Excise Taxes) 1,800,000 1,800,000 Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 20,000 20,000 Transfers in & Other Revenue Total Revenues 1,820,000 1,820,000 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes Capital Expenditures Debt Service Transfers Out 2,124,556 2,269,556 Total Expenditures 2,124,556 2,269,556 CHANGES IN FUND BALANCE Net change in fund balances (304,556) (449,556) Fund Balances-beginning 2,739,879 2,739,879 Fund Balances-ending $ 2,435,323 $ 2,290,323 Budget Adjustments: Items Previously Approved by Council Expenditure -Increase transfer-out to Fund 315 for Gateway Project Items Previously Approved by Council Net adjustment required to the ending fund balance FUND 308 Adj Required From The Amended Budget 2019 $ 145,000 145,000 (145,000) $ (145,000) (145,000) $ _____ (1_4 __ 5,_00_0~) CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE PARK FACILITIES CONSTRUCTION FUND For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous Transfers in & Other Revenue 62,250 62,250 Total Revenues 62,250 62,250 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 39,500 39,500 Capital Expenditures 65,000 140,515 Debt Service Transfers Out Total Expenditures 104,500 180,015 CHANGES IN FUND BALANCE Net change in fund balances (42,250) (117,765) Fund Balances-beginning 223,748 223,748 Fund Balances-ending $ 181,498 $ 105,983 $ Budget Adjustments: Items Previously Approved by Council Expenditure -Increase capital for design associated with Warren Ave. Playfield Project Items Not Previously Approved by Council Net adjustment required to the ending fund balance FUND 310 2019 75,515 75,515 (75,515) (75,515) (75,515) $ (75,515) --"'-------"- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE TRANSPORTATION CAPITAL PROJECTS For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other 417,379 417,379 Licenses and Permits Intergovernmental 3,465,581 3,465,581 Charges for Services Fines and Forfeitures Miscellaneous 80,000 80,000 Transfers in 1,409,769 1,554,769 145,000 Total Revenues 5,372,729 5,517,729 145,000 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 983,984 1,148,984 165,000 Capital Expenditures 4,350,535 4,330,535 (20,000) Debt Service Transfers Out Total Expenditures 5,334,519 5,479,519 145,000 CHANGES IN FUND BALANCE Net change in fund balances 38,210 38,210 Fund Balances-beginning 948,353 948,353 Fund Balances-ending $ 986,563 $ 986,563 $ Budget Adjustments: Items Previously Approved by Council Revenue • Increase transfer-in from Fund 308 for funding associated with Gateway Project Expenditure -Increase supplies and services for Gateway Project Expenditure -Decrease capital and reallocate to supplies and services (technical correction) Expenditure -Increase supplies and services for major maintenance projects (technical correction) Items Not Previously Approved by Council Net adjustment required to the ending fund balance FUND 315 $ 145,000 (145,000) 20,000 (20,000) ----- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE WATER CAPITAL For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 40,600 40,600 Transfers in & Other Revenue 4,444,366 4,444,366 Total Revenues 4,484,966 4,484,966 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 347,100 347,100 Capital Expenditures 4,526,279 4,179,179 (347,100) Debt Service Transfers Out Total Expenditures 4,526,279 4,526,279 CHANGES IN WORKING CAPITAL BALANCE Net change in working capital (41,313) (41,313) Fund Balances-beginning working capital 5,413,252 5,413,252 Fund Balances-ending working capital $ 5,371,939 $ 5,371,939 $ Budget Adjustments: Items Previously Approved by Council Expenditure -Decrease capital and reallocate to supplies and services (technical correction) Expenditure -Increase supplies and services for major maintenance projects (technical correction) New Items Not Previously Approved by Council Net adjustment required to the ending fund balance FUND404 $ 347,100 (347,100) ----- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE GOLD MOUNT AlN GOLF COMPLEX For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services 4,429,730 4,429,730 Fines and Forfeitures Miscellaneous 16,500 16,500 Transfers in Total Revenues 4,446,230 4,446,230 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 4,012,267 4,040,753 28,486 Capital Expenditures 12,500 12,500 Debt Service 436,230 436,230 Transfers Out Total Expenditures 4,448,497 4,489,483 40,986 CHANGES IN FUND BALANCE Net change in working capital (2,267) (43,253) (40,986) Fund Balances-beginning working capital 285,095 285,095 Fund Balances-ending working capital $ 282,828 $ 241,842 $ (40,986) Budget Adjustments: Items Previously Approved by Council Expenditure -Increase supplies and services for installation of conduit associated with Fiber Optic Cable Items Not Previously Approved by Council Expenditure -Increase supplies and services for small tools and equipment anticipated but not budgeted Expenditure -Decrease supplies and reallocate to capital for (technical correction) Expenditure -Increase capital reallocated from supplies (technical correction) Net adjustment required to the ending fund balance FUND407 (32,591) (8,395) 12,500 (12,500) $ __ ( ..... 4 __ 0,_98_6.._) CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE WASTEWATER CAPITAL For the Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Budget Budget 2019 2019 REVENUES Taxes Property $ $ Sales Other Licenses and Permits [ntergovernmental Charges for Services Fines and Forfeitures Miscellaneous 120,600 120,600 Transfers in & Other Revenue 2,796,739 2,796,739 Total Revenues 2,917,339 2,917,339 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 60,000 Capital Expenditures 8,855,000 9,145,000 Debt Service Transfers Out Total Expenditures 8,855,000 9,205,000 CHANGES IN FUND BALANCE Net change in working capital (5,937,661) (6,287,661) Fund Balances-beginning working capital 10,358,795 10,358,795 Fund Balances-ending working capital $ 4,421,134 $ 4,071,134 Budget Adjustments: Items Previously Approved by Council Expenditure -Increase capital due to emergency Gorst sewer repairs. Adj Required From The Amended Budget 2019 $ 60,000 290,000 350,000 (350,000) $ (350,000) Expenditure -Decrease capital and reallocate to supplies and services (technical correction) Expenditure -Increase supplies and services for major maintenance projects (technical correction) New Items Not Previously Approved by Council Net adjustment required to the ending fund balance FUND 454 $ (350,000) 60,000 (60,000) (350,000) CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE STORMWATER CAPITAL For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental 101,000 101,000 Charges for Services Fines and Forfeitures Miscellaneous 30,000 30,000 Transfers in & Other Revenue 2,071,209 2,071,209 Total Revenues 2,202,209 2,202,209 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 25,000 Capital Expenditures 3,195,747 3,170,747 Debt Service Transfers Out Total Expenditures 3,195,747 3,195,747 CHANGES IN FUND BALANCE Net change in working capital (993,538) (993,538) Fund Balances-beginning working capital 3,942,176 3,942,176 Fund Balances-ending working capital $ 2,948,638 $ 2,948,638 $ Budget Adjustments: Items Previously Approved by Council Expenditure -Decrease capital and reallocate to supplies and services (technical correction) Expenditure -Increase supplies and services for major maintenance projects (technical correction) New Items Not Previously Approved by Council Net adjustment required to the ending fund balance FUND484 2019 25,000 (25,000) $ 25,000 (25,000) ----- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE RISK MANAGEMENT INTERNAL SERVICE FUND For the Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Budget Budget 2019 2019 REVENUES Taxes Property $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 1,847,336 1,847,336 Transfers in Total Revenues 1,847,336 1,847,336 EXPENDITURES Personnel Expenses 340,000 700,000 Supplies, Services, and Taxes 1,548,491 1,548,491 Capital Expenditures Debt Service Transfers Out Total Expenditures 1,888,491 2,248,491 CHANGES IN FUND BALANCE Net change in working capital (41,155) (401,155) Fund Balances-beginning working capital 2,731,265 2,731,265 Fund Balances-ending working capital $ 2,690,110 $ 2,330,110 Budget Adjustments: Items Previously Approved by Council Expenditure -Increase personnel for additional worker's compensation costs New Items Not Previously Approved by Council Net adjustment required to the ending fund balance FUND 503 Adj Required From The Amended Budget 2019 $ 360,000 360,000 (360,000) $ (360,000) (360,000) $ (360,000) ---'--'----'- CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE EMPLOYMENT SECURITY For the Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Budget Budget 2019 2019 REVENUES Taxes Property $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 4,000 4,000 Transfers in Total Revenues 4,000 4,000 EXPENDITURES Personnel Expenses 40,000 100,000 Supplies, Services, and Taxes Capital Expenditures Debt Service Transfers Out Total Expenditures 40,000 100,000 CHANGES IN FUND BALANCE Net change in working capital (36,000) (96,000) Fund Balances-beginning working capital 317,510 317,510 Fund Balances-ending working capital $ 281,510 $ 221,510 Budget Adjustments: Items Not Previously Approved by Council Expenditure -Increase personnel for higher than anticipated unemployment costs Net adjustment required to the ending fund balance FUND 506 Adj Required From The Amended Budget 2019 $ 60,000 60,000 (60,000) $ (60,000) (60,000) $ (60,000) __ ...._ ___ __.._ CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE ACCUMULATED LEA VE LIABILITY For the Year Ended December 31, 2019 Amended Proposed Adj Required Mid-Year Year-End From The Budget Budget Amended Budget 2019 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 543,000 543,000 Transfers in Total Revenues 543,000 543,000 EXPENDITURES Personnel Expenses 400,000 600,000 200,000 Supplies, Services, and Taxes Capital Expenditures Debt Service Transfers Out Total Expenditures 400,000 600,000 200,000 CHANGES IN FUND BALANCE Net change in working capital 143,000 (57,000) (200,000) Fund Balances-beginning working capital 163,047 163,047 Fund Balances-ending working capital $ 306,047 $ 106,047 $ (200,000) Budget Adjustments: Items Not Previously Approved by Council Expenditure -Increase personnel due to unanticipated yr-end retirements & excess compensation payments (200,000) Net adjustment required to the ending fund balance $ (200,000) FUND 507 CITY OF BREMERTON 2019 ANTICIPATED REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE EQUIPMENT RENTAL RESERVE -RESERVES For the Year Ended December 31, 2019 Amended Proposed Mid-Year Year-End Adj Required From The Budget Budget Amended Budget 2019 2019 REVENUES Taxes Property $ $ $ Sales Other Licenses and Permits Intergovernmental Charges for Services Fines and Forfeitures Miscellaneous 50,000 50,000 Transfers in & Other 1,414,550 1,460,878 Total Revenues 1,464,550 1,510,878 EXPENDITURES Personnel Expenses Supplies, Services, and Taxes 2,761 2,761 Capital Expenditures 1,910,708 1,988,754 Debt Service Transfers Out & Other Total Expenditures 1,913,469 1,991,515 CHANGES IN FUND BALANCE Net change in working capital (448,919) (480,637) Fund Balances-beginning working capital 4,423,572 4,423,572 Fund Balances-ending working capital $ 3,974,653 $ 3,942,935 Budget Adjustments: Items Previously Approved by Council Expenditure -Increase capital to replace totaled police car Expenditure -Increase capital for snow plow blade Revenue -Increase other revenue for equipment interfund from Fund I 02 for snow plow blade New Items Not Previously Approved by Council Expenditure -Increase capital for additional equipment needed for police car replacement 2019 46,328 46,328 78,046 78,046 (31,718) (31,718) (53,546) (17,500) 17,500 Revenue -Increase other revenue from insurance recovery & equip. interfund for police care replacement (7,000) 28,828 Net adjustment required to the ending fund balance $ (31,718) ---'-------"'- FUND 510 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Salary Surveys Recommendations for Community Development Assistant and Project Assistant; Managing Engineer (Utilities); Managing Engineer (Transportation); and Administrative Project Manager COUNCIL MEETING Date: December 18, 2019 Department: Human Resources Presenter: Charlotte Nelson Phone: (360) 473-5926 SUMMARY: Human Resources Department has completed a salary surveys on the Community Development Assistant, Project Assistant, Managing Engineer – Utilities, Managing Engineer – Transportation, and Administrative Project Manager. Community Development Assistant and Project Assistant – upgrade from Grade 10 to Grade 12 Managing Engineer Utilities and Managing Engineer – Transportation – upgrade from Pay Band 16 to Pay Band 17 Administrative Project Manager – downgrade from Pay Band 15 to Pay Band 10 ATTACHMENTS: Results from the Community Development Assistant, Project Assistant, Managing Engineer – Utilities, Managing Engineer – Transportation, and Administrative Project Manager salary surveys. FISCAL IMPACTS (Include Budgeted Amount): The projected cost of implementing the recommended changes can be absorbed in the existing 2020 budgets because of staffing changes/retirements. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to accept the salary survey recommendations presented and to implement those recommendations effective January 1, 2020. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A18 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Public Works Agreement with Slabjack Geotechnical, Inc. for the Sidewalk Trip Hazard Removal Project COUNCIL MEETING Date: December 18, 2019 Department: Engineering Presenter: Shane Weber Phone: (360) 473-2354 SUMMARY: The City bid the project using the MRSC Small Public Works Roster, opening bids on December 3rd, 2019 and 3 bids were received. Slabjack Geotechnical Inc. is the lower responsive, responsible bidder with their bid of $156,337.95, including sales tax. The project removes trip hazards at multiple locations around the City by raising sidewalk panels with polyurethane foam injection (sidewalk jacking), and edge grinding. ATTACHMENTS: 1) Public Works Agreement; 2) Site Plan FISCAL IMPACTS (Include Budgeted Amount): This project is budgeted at $70,000 in the 2019 Residential Streets Fund and $100,000 in the Transportation Capital Fund. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Public Works Agreement with Slabjack Geotechnical, Inc. for the Sidewalk Trip Hazard Removal Project; 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 A19 City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 1 of 9 November 2019 PUBLIC WORKS AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation (“City”), and Slabjack Geotechnical (“Contractor”), whose mailing address is 630 Valley Mall Parkway #431 East Wenatchee, WA 98802 . The parties agree as follows: 1. CONTRACTOR SERVICES. The Contractor shall perform the following services for the City described tin the Bid Documents titled: SIDEWALK TRIP HAZARD REMOVAL PROJECT #310533-6026. 2. TIME OF COMPLETION. Contractor shall complete the work within 40 Working Days from the date of issuance of the City’s Notice to Proceed. FOR PROJECTS WHERE CONTRACTOR USES A PERFORMANCE BOND, USE THE FOLLOWING LANGUAGE : 3. COMPENSATION. The City shall pay the Contractor the total amount of $ 156,337.95, plus any applicable Washington State Sales Tax, for the work and services contemplated in this agreement. The Contractor shall invoice the City monthly. The City will pay for the portion of the work described in the invoice that has been completed by the Contractor and approved by the City. The City payment shall not constitute a waiver of the City’s right to final inspection and acceptance of the project. A. Performance Bond and Payment Bond. Pursuant to Chapter 39.08 RCW, the Contractor shall provide the City a performance bond and payment bond for the full contract amount to be in effect until thirty (30) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor and Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. [RETAINAGE: THIS ITEM IS NEGOTIABLE IF WE USE THE 90/10 PAYMENT (NO PERFORMANCE BOND) AND THE CONTRACT IS UNDER $35,000 (WAC 458-20- 217[7]). FOR INSTANCE, IF THE PROJECT IS $12,000 AND WILL ONLY TAKE 3 DAYS AND HAS LITTLE RISK OF NON-COMPLETION, WE WOULD PROBABLY NOT KEEP 5% RETAINAGE, BECAUSE WE ARE STILL HOLDING 10% OF THE FINAL PAY ESTIMATE UNTIL WE RECEIVE THE L&I RELEASES.] B. Retainage. The City shall hold back a retainage in the amount of five percent (5%) of any and all payments made to contractor for a period of thirty (30) days after the date of City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 2 of 9 November 2019 final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor & Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. C. Defective or Unauthorized Work. The City reserves its right to withhold payment from Contractor for any defective or unauthorized work. Defective or unauthorized work includes, without limitation: work and materials that do not conform to the requirements of this agreement; and extra work and materials furnished without the City’s written approval. If Contractor is unable, for any reason, to satisfactorily complete any portion of the work, the City may complete the work by contract or otherwise, and Contractor shall be liable to the City for any additional costs incurred by the City. “Additional costs” shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Contract price specified above. The City further reserves its right to deduct the cost to complete the Contract work, including any Additional Costs, from any and all amounts due or to become due the Contractor. D. Final Payment: Waiver of Claims. THE MAKING OF FINAL PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL PRECLUDE ALL CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. 4. INDEPENDENT CONTRACTOR. Contractor is and shall be at all times acting as an independent contractor and not as an employee of the City. The Contractor shall secure at its expense and shall be responsible for all payments of income tax, social security, state disability insurance compensation, unemployment compensation, and all other payroll deductions for the Contractor, officer, agents, employees and sub-contractors. The Contractor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Contractor's officers, agents, employees and sub-contractors. 5. TERMINATION. The City may terminate this agreement for good cause. “Good cause” shall include, without limitation, any one or more of the following events: A. The Contractor’s refusal or failure to supply a sufficient number of properly skilled workers or proper materials for completion of the Contract work. B. The Contractor’s failure to complete the work within the time specified in this agreement. C. The Contractor’s failure to make full and prompt payment to sub-contractors or for material or labor. City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 3 of 9 November 2019 D. The Contractor’s persistent disregard of federal, state or lo cal laws, rules or regulations. E. The Contractor’s filing for bankruptcy or becoming adjudged bankrupt. If the City terminates this agreement for good cause, the Contractor shall not receive any further monies due under this agreement until the Contract work is completed. 6. PREVAILING WAGES. Contractor shall file a “Statement of Intent to Pay Prevailing Wages” with the State of Washington Department of Labor & Industries prior to commencing the Contract work. Contractor shall pay prevailing wages and comply with Chapter 39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate provisions. 7. CHANGES. The City may issue a written work change directive for any change in the Contract work during the performance of this agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the City’s project manager within two (2) business days of the date the Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor’s costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving a written work change directive or change order from the City. If the Contractor fails to require a change order within the time allowed, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment the Contractor must complete the change order work; however, the Contractor may elect to protest the adjustment as provided below: A. Procedure and Protest by the Contractor. If the Contractor disagrees with anything required by a work change directive or change order, including any direction, instruction, interpretation, or determination by the City, the Contractor shall: 1. Immediately give a signed written notice of protest to the City; 2. Supplement the written protest within fourteen (14) calendar days with a written statement that provides the following information: a. The date of the Contract’s protest. b. The nature and circumstances that caused the protest. City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 4 of 9 November 2019 c. The provisions in this agreement that support the protest. d. The estimated dollar cost, if any, of the protested work and how that estimate was determined. e. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Contractor’s records needed for evaluating the protest. 3. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. B. Contractor’s Duty to Complete Protested Work. In spite of any protest, the Contractor shall proceed promptly with the work as the City has ordered. C. Contractor’s Acceptance of Changes. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts form the City any written order (including directions, instructions, interpretations, and determination). 8. CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 5 of 9 November 2019 to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Contractor’s written claim must include the information set forth regarding protests in Section 7.A.2.a.-e. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete. 9. WARRANTY. The Contractor shall correct all defects in workmanship and materials within one year from the date of the City’s acceptance of the Contract work. When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officer, officials, employees, agents and volunteers harmle ss 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 injuries and damages caused by the City’s sole negligence. The City’s inspection or acceptance of any of Contractor’s work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, then, in the event 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 Contractor and the City, its officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor’s negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 6 of 9 November 2019 The provisions of this section shall survive the expiration or termination of this agreement. 11. INSURANCE. The Contractor shall procure and maintain for the duration of this agreement insurance of the types and in the amounts described below against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by the Contractor, its agents, representative, employees, sub-consultants or sub-contractors. Before beginning work on the project described in this agreement, the Contractor shall provide a Certificate of Insurance evidencing: 1. Automobile Liability insurance with limits no le ss than $1,000,000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU); and employer’s liability. 3. Excess Liability insurance with limits not less than $1,000,000 per occurrence and aggregate. Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor. The City, its officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The Contractor’s 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 100, Bremerton, WA 98337 within two days of the City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 7 of 9 November 2019 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 reserves the right to receive a certified copy of all the required insurance policies. 12. MISCELLANEOUS. A. Nondiscrimination. In the hiring of employees for the performance of work under this Agreement or any sub-contract hereunder, the Contractor, its sub-contractors, or any person acting on behalf of such Contractor or sub-contractor shall not, by reason of race, religion, color, sex, national origin, or the presence of any sensory, mental, physical disability, or sexual orientation discriminate against any person who is qualified and available to perform the work to which the employment relates. B. Compliance with Laws. Contractor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this agreement. C. Work Performed at Contractor’s Risk. Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this agreement. All work shall be done at Contractor’s own risk, and Contractor 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. D. Nonwaiver of Breach. The failure of the City to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of those terms and rights and they shall remain in full force and effect E. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. F. Attorney’s Fees. To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties’ performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney’s fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City’s right to indemnification under Section 10 of this agreement. G. Written Notice. All communications regarding this agreement shall be sent to the parties at the addresses listed on the signature page of this agreement, unless otherwise notified. Any written notice shall become effective upon delivery, but in any event City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 8 of 9 November 2019 three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this agreement. H. Assignment. Any assignment of this agreement by the Contractor without the written consent of the City shall be void. I. Modification. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor. J. Severability. If any one or more sections, sub-sections, or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this agreement and the remainder shall remain in full force and effect. K. Entire Agreement. The written provisions and terms of this agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be construed as forming a part of or altering in any manner this agreement. This agreement and any attached Exhibits contain the entire agreement between the parties. Should any language in any Exhibit to this agreement conflict with any language contained in this agreement, the terms of this agreement shall prevail. L. Not Used. M. Per RCW 35.22.650, Contractor agrees that the contractor shall actively solicit the employment of minority group members. Contractor further agrees that the contractor shall actively solicit bids for the subcontracting of goods or services from qualified minority businesses. Contractor shall furnish evidence of the contractor's compliance with these requirements of minority employment and solicitation. Contractor further agrees to consider the grant of subcontracts to said minority bidders on the basis of substantially equal proposals in the light most favorable to said minority businesses. The contractor shall be required to submit evidence of compliance with this section as part of the bid upon request. City of Bremerton Public Works Agreement Sidewalk Trip Hazard Removal Project 310533-6026 Page 9 of 9 November 2019 IN WITNESS WHEREOF, the parties below have executed this agreement. CONTRACTOR THE CITY OF BREMERTON Slabjack Geotechnical Print Name: Print Name: Title: Title: DATE DATE Notices to be sent to: Notices to be sent to: CONTRACTOR: CITY OF BREMERTON: SLABJACK GEOTECHNICAL Attention: Chris Dimmitt_ 630 Valley Mall Parkway #431 345 6th Street, Suite 100 East Wenatchee, WA 98802 Bremerton, WA 98337 (855) 752-2522 (360) 473-2307 (360) 473-5398 (facsimile) APPROVED AS TO FORM: ATTEST: ________________________________________ Roger A. Lubovich Angela Hoover Bremerton City Attorney City Clerk THIS PAGE LEFT INTENTIONALLY BLANK 200283200756 200754200701 200751 200937201164201221200752 200636200654200552 200561200702200715200755200879200900200901200887200770200894200907200897200873200788200758202706 202712 200614 200583 November 2019 City of Bremerton Department of Public Works and Utilities Engineering DivisionBID DOCUMENT 0 1,000 2,000500 US Feet Sheet 1 of 1COB Project No. 315033-6026 Sidewalk Trip Hazard Removal Project Sidewalk Location Map Legend Sidewalk Locations General Note: See Appendix A of special provisions for trip hazard location data table. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Contract Modification Agreement No. 1 to the Professional Services Agreement with the Johnston Group for Federal Legislative/Agency Representation Services Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: PW &U Presenter: Tom Knuckey Phone: (360) 473-2376 SUMMARY: Last year the City executed an agreement with the Johnston Group to assist with federal lobbying, and to help build collaborative working relationships with federal agencies and legislators. In 2019, they facilitated a series of meetings between the City and its congressional delegation both in Washington DC and locally. They also coordinated meetings with officials from the South Sound Military and Community Partnership, the City of Lakewood and the Office of Economic Adjustment, and assisted in developing a focused approach to secure funds to develop an NBK commuter master plan, with the ultimate goal to secure construction funding for implementation. Throughout the year the Johnston Group has been monitored the progress of funding the Defense Community Infrastructure Program in the legislature and advised the City on steps it can take to assist in ensuring the program is funded. ATTACHMENTS: 1) Contract Modification No. 1 to PSA with the Johnston Group; 2) Exhibit A (November 2019) which includes Summary of 2019 Accomplishments and 2020 Scope of Work FISCAL IMPACTS (Include Budgeted Amount): This contract is $5,000 per month except for travel expenses, which will be reimbursed to the Johnston Group based on actual expenses in accordance with Exhibit B. This item is included in the City’s 2020 expense budget. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve Amendment No. 1 to the Professional Services Agreement with the Johnston Group for Federal Legislative/Agency Representation Services; 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 A20 Page 1 of 2 Contract Modification Rev. 10/2019 CONTRACT MODIFICATION AGREEMENT NO. 1 BETWEEN THE CITY OF BREMERTON AND THE JOHNSTON GROUP PROJECT: Federal Legislative/Agency Representation Services CONSULTANT: The Johnston Group THIS CONTRACT MODIFICATION AGREEMENT SPECIFICALLY AMENDS THE Professional Services Agreement (the "Contract") entered into between the City of Bremerton and the Johnston Group on January 10, 2019. All provisions in the Contract shall remain in full force and effect except as expressly modified by this document. For valuable consideration and by mutual consent of the parties, the modifications to the Contract are as follows: I. Section I. Scope , is modified as follows: Exhibit A is replaced with updated Exhibit A (November 2019); attached to this Contract Modification. Section II. Term , is modified as follows: The Consultant shall complete the work described in this Contract Modification Agreement by December 31, 2020. Section III. Compensation , is modified as follows: The original contract amount was $60,000. The City shall pay the Consultant for the additional work described above, based on time and materials, an amount not to exceed $60,000 for a total amended contract amount of $120,000, including this Contract Modification. II. Consultant accepts all requirements of this Contract Modification by endorsing below. Consultant further agrees that this Contract Modification constitutes full and final settlement of all of the Consultant’s claims for contract time and for all costs of any kind, including without limitation, costs of delays related to any work either covered or affected by this Contract Modification, claims related to on-site or home office overhead, or lost profits. This Contract Modification does not limit the City’s right to bring a claim for past performance. The undersigned consultant approves the foregoing Contract Modification as to the changes, if any, in the contract price specified for each item, including any and all supervision costs and other miscellaneous costs relating to the change in work, and as to the extension of time allowed, if any, for completion of the entire work due to said Contract Modification. Page 2 of 2 Contract Modification Rev. 10/2019 This document will become a supplement of the contract and all provisions will apply hereto. It is understood that this Contract Modification shall be effective when approved by the City of Bremerton. The parties whose names appear below warrant that they are authorized to enter into a contract modification that is binding on the parties of this contract. In addition, Consultant warrants that it has or will inform the surety of this change, and shall take appropriate action to modify any bonds required under the contract to address this change. IN WITNESS WHEREOF, the parties have executed this Contract Modification on the day and year first written above. City Engineer / Public Works Director approved to process _________________________ (Initials and Date) CONSULTANT THE CITY OF BREMERTON By: By: Print Name: Print Name: Its: Its: Date: Date: APPROVED AS TO FORM: ATTEST: By: By: ROGER A. LUBOVICH, Bremerton City Attorney ANGELA HOOVER, City Clerk NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: Mr./Mrs. Title City of Bremerton Engineering Dept. Address 1 Address 2 Phone/Fax R:\Legal\Legal\Forms\FORMS ON COBWEB\Contract Modification Rev. 10 2019.docx Exhibit A (November 2019) Scope of Work and Summary of Accomplishments This Exhibit outlines some of the major accomplishments achieved in 2019 and outlines a Scope of Work in prioritized order for 2020. 2019 Accomplishments The Johnston Group helped the City of Bremerton make major gains in 2019 in support of its federal legislative agenda. Specifically, we accomplished the following key goals: 1. Worked with the City of Bremerton to apply for a $690,000 grant from the Office of Economic Adjustment (OEA) at the Department of Defense that will create a master Commuter Workforce plan to solve the parking and transportation challenges associated with the Puget Sound Naval Shipyard. a. Secured delegation support for this grant application. b. Prepped the grant with OEA prior to its submittal so that the Agency would be ready to review when funding was available. c. Helped the City define the scope of the grant request to best meet its needs and set up projects for future funding under the Defense Community Infrastructure Program (DCIP). 2. Facilitated the necessary relationships between the City and its key regional and federal partners including the Congressional delegation, the City of Lakewood (host community to Joint Base Lewis McChord), the South Sound Military and Community Partnership, the Office of Economic Development and the Association of Defense Communities. a. In DC meetings and in regional meetings, the City’s Mayor and key staff have been able to build relationships with key policy and funding decision-makers. b. Congressional offices have toured the City’s identified projects and have a keen understanding of the city’s objectives and goals. 3. Lobbied in support of funding a new program called the Defense Community Infrastructure Program (DCIP) in the Department of Defense for infrastructure projects in military communities. This work has yet to be finalized in 2019 at the time of this memo’s creation, but we expect there to be close to $100 million of new funding in a new program designed to partner with cities that host military installations. a. Funding grew from $0 in 2018 to $30 million in the House-passed version of a bill in Spring of 2019 to $75 million in the Senate version in early Fall to an amount currently in negotiation that could be between $100 and $125 million. b. This new DCIP funding could provide a significant portion of the capital budget for the future commuter workforce projects that will be identified in the OEA grant. 4. Regarding transportation, have grown support for establishing a medium sized city set- aside for federal transportation budgets. If successful in this effort, cities the size of Bremerton will have increased access to competitive funding opportunities for infrastructure and transportation projects. The 2020 scope of work build on our short-term success and continues to build support in 2020 and for longer-term initiatives in the years ahead. Additionally, we follow the work being done by partner agencies and organizations and will levy support when and where appropriate. Some of these organizations include the Association of Washington Cities, the Association of Defense Communities, the Puget Sound Regional Council and Kitsap County, among others. These items are listed in priority order. 1. Funding the City’s OEA grant request to develop a comprehensive Pedestrian and Commuter Strategy for the Puget Sound Naval Shipyard The Puget Sound Naval Shipyard (PSNS) is a key economic factor for the City of Bremerton with insufficient parking, pedestrian and bicycle infrastructure and drop-off areas for a commuting workforce. The City has done an excellent job of researching the challenge and looking at potential mitigation strategies and has formally submitted a $690,000 grant request to the Office of Economic Adjustment (OEA) at the Pentagon to develop a comprehensive strategy and capital plan. This grant request fits with the Joint Land Use Study conducted for the Puget Sound Naval Shipyard and Naval Base Kitsap and enjoys the support of the Base Commander and the Congressional delegation. We expect a final determination about this grant shortly and hope to let the contract in early 2020. Part of our work in 2020 will be to ensure that funding is delivered and accessible and to also keep our congressional delegation informed about the work being done as key milestones are hit. The completion of this project will (hopefully) identify key projects that we will be seeking support for federal funding to implement, potentially through the DCIP. 2. Defense Community Infrastructure Program (DCIP) In 2018, Congress included the creation of the Defense Community Infrastructure Program (DCIP) in the Defense Authorization bill with an initial authorization of $100 million for the program. This program was the result of a multiple-year effort led by the City of Lakewood and pushed by Rep. Denny Heck with the support of Rep. Derek Kilmer and Rep. Adam Smith. This new federal program will create a new funding program for the Department of Defense to help cities construct infrastructure that serves military installations. Congress failed to fund the program in 2018 leaving that as our primary strategy in 2019 – to fully fund this program and get it set up so that the City of Bremerton could access it once its pedestrian and commuter workforce study at PSNS was complete. While the specific funding level in 2019 is not yet known, all signs are extremely positive. The first version of the House bill included $30 million for the DCIP thanks to the advocacy of Rep. Derek Kilmer. The Senate’s version of the bill increased this amount to $75 million and as the bill gets conferenced between the two bodies, we’ve seen the number continue to climb towards the fully authorized amount of $100 million. Assuming that Congress funds this program, it will fall to the Office of Economic Adjustment to implement the program. This is where the city’s grant request for the PSNS Commuter study allows us to build strong relationships with that agency. This is a tremendous opportunity for the City of Bremerton and lays out some clear steps for us in 2020 that should be among the City’s top policy, funding, and legislative priorities for 2020. Our work will be to watch the establishment of the program to ensure it fits for the city of Bremerton and that Congress continue to prioritize funding for this effort. 3. Transportation Currently, there are a lack of federal funding programs that the City can use for its transportation and infrastructure goals. To make investments in local infrastructure in this environment, the City should pursue targeted requests of its federal delegation and support broader efforts to define more opportunities at a federal level. We expect Congress to take up an infrastructure bill early in 2020 as the current Transportation bill expires next year. Finally, we expect that earmarks may make a comeback in 2020 for public agencies. Each of these opportunities defines some policy priorities for the City of Bremerton. Funding for Non-Motorized Infrastructure For decades, Congress has debated the amount of funding from the federal gas tax revenues that should go towards projects that are not directly highway related. These projects include transit systems and non-motorized projects like sidewalks, trails and other programs. The share of federal dollars being made available to non-motorized projects has diminished over the past few transportation bills and there is a concerted effort to eliminate funding for transit and non-motorized access all together. As Congress debates a new Transportation bill and considers the continued funding of the BUILD Program (formerly known as the Transportation Investment Generating Economic Recovery, or TIGER, discretionary grant program), the City should continue to lobby for a portion of federal infrastructure dollars be allocated for transit and non-motorized projects. Medium Sized City Set Aside Most federal infrastructure spending has a rural set aside which is critical for smaller communities to be able to access federal dollars. There is no comparable medium sized city set aside. Instead, medium sized cities compete against large cities like Seattle, Portland and Los Angeles for limited resources. Medium sized cities need a defined pool to compete within so as to make federal funds available in a way that simply aren’t in their current status. As Congress debates a new Transportation bill and considers the continued funding of the BUILD Program (formerly known as the Transportation Investment Generating Economic Recovery, or TIGER, discretionary grant program), the City should lobby for a portion of federal infrastructure dollars be set aside for medium sized cities. This policy position is consistent with the work the city has been doing for years and is supported broadly by similar sized cities throughout the state. The BUILD program is the key federal funding program for local infrastructure investments. Yet, all cities compete within the same funding pool, putting smaller and medium sized cities at a competitive disadvantage for funding even as the transit and commuter challenges are similar to those of larger communities. There are efforts in Congress to create funding tiers so that cities of similar size can compete for federal funds. The City should support efforts to designate a portion of federal transportation spending for cities under 100,000 in population size. Funding for MPOs Federal transportation funding is generally distributed in Washington State via the State Department of Transportation (DOT) or via a Metropolitan Planning Organization (MPO) like the Puget Sound Regional Council (PSRC). In the most recent Transportation bill from 2016, Congress changed the allocation of funds from 50%-50% between DOTs and MPOs to 55%-45% with MPOs gaining the larger amount. As Congress starts to consider the next Transportation bill, the City should support increasing this proportion to the benefit of MPOs and oppose any attempt to preclude the formation of new MPOs to meet regional needs. This should dovetail with the City’s work at PSRC to more highly value cities with military installations in competitive funding pools. 4. Defense Policy / Issues As the host community to the Puget Sound Naval Shipyard and Naval Base Kitsap, the City is keenly impacted by Defense policies. The following issues comprise a key portion of our 2020 federal policy agenda. Base Realignment and Closure (BRAC) The City should support a BRAC round to focus limited federal funding on critical military infrastructure needs. The City urges Congress to invest in the Office of Economic Adjustment with any BRAC round. While the prospects of a BRAC round before 2021-23 are unlikely, the DOD and our congressional delegation are supportive. A BRAC round is the best way to direct military construction and infrastructure funding to the bases and locations that need the most investments. More, for bases that see an increase in missions or personnel following a BRAC, Congress should consider creating a new funding support to address deficiencies on those installations. Office of Economic Adjustment (OEA) As Congress moves forward with annual Defense Authorization bills, preserving funding for the Office of Economic Adjustment at the Pentagon is a key priority for the City. OEA funds economic studies and planning for cities that experience reductions or growth in their military installations. We expect OEA to become a critical partner to the City for many of our shared initiatives in support of PSNS and NBK. Funding for OEA is under persistent threat and the City should lobby for stable funding for OEA in recognition of its strong role in the economic growth in our region. Association of Defense Communities Engagement The Association of Defense Communities (ADC) has the potential to become a key ally for the City. The ADC’s support for the Defense Infrastructure Program was key to enactment in 2018. Additionally, its steadfast support for the Office of Economic Adjustment has been critically important for the viability of that agency. The City should look for ways to deepen its relationship with ADC and consider travelling to the ADC conferences with the eventual goal of seeking committee and board positions with ADC. Support for MilCon Projects at PSNS and NBK As the City develops its relationships with base leadership at PSNS and NBK, it should lobby for projects at both installations that the bases are seeking funding support for within the congressional spending bills. Carefully watch shipyard budgets for PSNS and advise City about impacts The Navy has identified a multi-billion infrastructure needs at its major shipyards but has failed to adequately fund the need to date. Watching this budget and analyzing its impacts on the City of Bremerton will be a key priority for the Johnston Group in 2020 and the years ahead. 5. Community and Economic Development Programs Restoration of Earmark Authority Congress is considering restoring the earmarking authority to the legislative branch following the election. The Administration is currently not funding the obligations directed by Congress and many elected officials want more authority over how funds are allocated. The City should support earmarks with the following criteria: o Only available to public agencies. o Fully transparent process for requests. o Limited to economic development, infrastructure, transportation and human services funding programs. Community Development Block Grants (CDBG) and the Home Investment Partnership Program (HOME) o The City of Bremerton uses Community Development Block Grant (CDBG) and Home Investment Partnership Program (HOME) funding to support local initiatives that benefit the City’s vulnerable population. Funding in the CDBG program increased by 30% in 2018 after falling to a decade low in 2017. The City should support the CDBG and HOME program at the federal level and lobby for increased funding that could be put to use in Bremerton immediately. Support Municipal Tax Policy Congress has adjusted various tax policies that have a direct impact on the City of Bremerton, including the New Markets Tax Credit, the Affordable Housing Tax Credit and the State and Local Sales Tax Deduction. These policies, in addition to policies that would negatively value municipal bonding authority, remain under debate in Congress in 2020 and the City should advocate for strong municipal authority and tax credits that facilitate economic development and meet our region’s critical housing needs. 6. Support the Green Stormwater Infrastructure Initiatives. Representatives Derek Kilmer and Denny Heck are leading a long-term strategy to modify federal laws, funding opportunities and programs to benefit the Puget Sound ecosystem. This effort has multiple policy components: Add green stormwater treatment as a scoring criteria for federal transportation awards. This would advantage projects seeking federal funds that include a stormwater management component. Create a tax credit program for stormwater retrofits and new development. If enacted, this program would provide a 50% tax credit for individuals and developers that incorporate stormwater projects such as rain gardens, bioswales and similar projects. Create a new federal program to fund culvert replacement, fish passage improvements and habitat restoration in municipal streams and creeks. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Equipment Purchase and Public Works Agreement with Ferguson Waterworks for a Sensus Flexnet System Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: PW&U/Finance Presenter: T. Knuckey/M. Riley Phone: 473-2376/473-5303 SUMMARY: Over the past seven years, Bremerton Utility staff have been replacing water meter transmitter units (MXUs) to be compatible with the Sensus Flexnet technology; this replacement is approximately 87% complete (13,000 of 15,000 installed.) This new technology allows Utility Billing staff to read, detect leaks, communicate with, shut-off and turn-on individual meters remotely. The system can also monitor and control other facilities such as street lights; however, that capability is not included in this initial contract and would require additional software. The Public Works Agreement includes three parts; purchase and installation of the equipment, set-up and integration of the software into the City’s billing system, and a Software as a Service agreement. Further detail is included in the attached Council Summary. ATTACHMENTS: 1) Council Summary Updated; 2) Equipment Purchase and Public Works Installation Agreement with Ferguson Waterworks; 3) Sole Source Determination FISCAL IMPACTS (Include Budgeted Amount): Total cost over 5-years is $550,734.93 (including Sales Tax). 2020 cost is $283,465.40 for the hardware, installation, training and integration, plus $39,745 for the first year of software and analytics fees. On-going annual software, analytics and warranty fees are approximately $55,000/year; see Council Summary. This work is included in the Water Utility Capital Program budget. STUDY SESSION AGENDA: ☐ Limited Presentation ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Equipment Purchase and Public Works Installation Agreement with Ferguson Waterworks for purchase, installation, and on-going software and analytics of a Sensus Flexnet system in the amount of $550,734.93 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 A21 Updated APPROVE PUBLIC WORKS AGREEMENT WITH FERGUSON WATERWORKS COUNCIL SUMMARY Background: Staff began installing Sensus “Smart Point” Water Meter Transmitter Units (MXUs) in 2012 to allow remote reading and meter operations. Conversion to the Sensus MXUs is approximately 87% complete, 13K of 15K meters have been installed. To date the City has invested approximately $2,000,000 with the meter conversion; an additional $258K is required to complete the conversion. It should be noted that the older MXUs are being phased out, and replaced with the Sensus MXUs, and so the conversion to Smart Point MXUs will be completed as the meters fail (full conversion within 7-years) regardless of whether the City implements FlexNet. Current meter reading operations are as follows: a meter reader drives most City streets each billing cycle (4-cycles total, 2 per month) and meters are read using two separate base stations outfitted in a Service Truck, one to read the Sensus MXUs and one to read the other MXUs (520M MXUs.) The data is collected on a thumb drive, then uploaded into the Utility Billing System. The data is reviewed by utility billing and meter reading staff to ensure all accounts are collected, the meter reader then returns to the field and physically reads all un-read accounts and repairs faulty MXUs. Utility billing runs a query to identify anomalies, reviews past data, and dispatches customer response to investigate and address issues. The Sensus Flexnet system uses 4 base station/antenna system units distributed throughout the City that would automatically read and record the water meters each hour. Flow anomalies would be automatically identified and reported to the City immediately. Advantages: Meters are read 24-times per day as opposed to 6-times per year Out of cycle data query is available at a keystroke Reduced labor to read meters; savings estimated conservatively at 1/2-FTE/year. Recovered labor will be applied to existing work backlog including valve cycling, meter testing, replacing meters past service life, etc. Webcheck is eliminated. Webcheck is $50K/year service that estimates out-of-cycle flow readings required for home sales (day-of-sale), landlord requests and customer complaints Initial capital cost results in on-going annual savings. Meter malfunction is identified and corrected early. Confusion with customers is minimized and staff time to resolve issues and disputes is minimized Leaks are detected much earlier – customers avoid high bills, flooding is minimized and water loss is controlled. Note that the City policy is to write off 50% of excess cost once every 2-years. Customers have received, and paid water bills in excess of $5,000 Staff safety is improved. Accounts with chronic non-payment history are outfitted with new meters with remote shut-off/turn-on capability Capability would exist to incorporate continuous pressure, temperature and chlorine residual monitoring at key locations throughout the water system Minimizes the cost to move to monthly utility billing; monthly meter reading would require a second meter reader FTE System Implementation: Contract with Ferguson Waterworks includes the following: 1. Equipment purchase and installation at 4 reservoir sites - $244,634.15 (2020 cost). 2. Set-up of the software system, integration into the City’s billing system and staff training - $38,831.25 (2020 cost). 3. Annual Software as a Service and Equipment Warranty – total cost is $267,278.53, paid as follows: a. 2020 - $43,322.05 (Warranty fee not required for year 1) b. 2021 - $53,303.56 c. 2022 - $55,211.41 d. 2023 - $56,867.73 e. 2024 - $58,573.79 In addition, the City will need to complete Smart Point MXU installation, 239 “doubles” and 1,668 “singles”; 2020 - $258,000. Note that current MXUs have been discontinued and replaced by Smart Point. MXUs are replaced as they fail, and all of the expedited MXUs will be replaced within 7 years regardless of Flexnet implementation Cost to Implement: The following table presents costs that are affected by both the implementation of flexnet and monthly billing. 1 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install EQUIPMENT PURCHASE AND PUBLIC WORKS INSTALLATION AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation (“City”), and Ferguson Waterworks (“Contractor”), whose mailing address is 11650 Clear Creek Rd NW Silverdale, WA 98383. The parties agree as follows: 1. CONTRACTOR SERVICES. The Contractor shall perform the following services for the City: A. Deliver and Install Flexnet infrastructure including 4 Sensus M400R Base Stations at four locations: i. Location 1: Cheryl Street Telecommunications Tower, owned by the City of Bremerton ii. Location 2: Reservoir # 6 owned by the City of Bremerton iii. Location 3: Reservoir # 20 owned by the City of Bremerton iv. Location 4: Alexander North Telecommunications Tower, owned by Seattle SMSA Verizon Wireless and managed by American Tower. v. Installation shall be in accordance with the Plans and Specifications attached hereto as Exhibit A and per requirements set forth by the City of Bremerton and American Tower the management agent for the Alexander Lake North Telecommunications Tower. B. Set up the Sensus Flexnet Software System, integrate it into the City’s billing system, and train staff. The work includes all necessary integration to make the Flexnet system fully functional and operational to the City's satisfaction. Staff training will be as needed and located at the City’s offices. i. Costs in this task include payment of all analytics set-up fees. ii. Terms, conditions and details regarding the set-up, warranty, Implementation Training Statement of Work and fees are outlined in Exhibit B. C. 5-year Software as Service Agreement and 5 Year Annual Warranty: Ferguson acting on behalf of Sensus USA, Inc. will bill the City of Bremerton for the annual fees for software as a service agreement (SAAS) and annual warranty through the fifth year of operation between the City of Bremerton and Sensus USA, Inc. as noted in the enclosed pricing via Exhibit C. The Base Station Warranty is included into the terms and conditions of this contract via Exhibit B and Terms and Conditions of SAAS are attached as Exhibit D. 2. TIME OF COMPLETION. Contractor shall complete the work included in paragraph 1.A. and 1.B. within _160_ calendar days from the date of issuance of the City’s Notice to Proceed. 3. COMPENSATION. The City shall pay the Contractor the total amount of $244,634.15, including applicable Washington State Sales Tax, for the work included under Paragraph 1.A. above (Flexnet Infrastructure Installation). The City shall pay Contractor the total amount of 2 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install $38,831.25 including applicable Washington State Sales Tax, for the work included in Paragraph 1.B. above (Set-up, Integration, and Training of the Flexnet System). The City shall pay the Contractor the total amount of $267,278.53 including applicable Washington State Sales Tax, for the work included in Paragraph 1.C. above (annual Analytics and Warranty Fee). The Contractor shall invoice the City monthly, via the Schedule of Values in Exhibit E, for the work included in Paragraph 1A and 1 B above, and annually for the work included in Paragraph 1.C as per the SAAS agreement in Exhibit D. The City will pay for the portion of the work described in the payment application and invoice that has been completed by the Contractor and approved by the City. The City payment shall not constitute a waiver of the City’s right to final inspection and acceptance of the project. A. Performance Bond. Pursuant to Chapter 39.08 RCW, the Contractor shall provide the City a performance bond for the full contract amount to be in effect until thirty (30) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor and Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. B. Retainage. The City shall hold back a retainage in the amount of five percent (5%) of any and all payments made to contractor for a period of thirty (30) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor & Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. C. Defective or Unauthorized Work. The City reserves its right to withhold payment from Contractor for any defective or unauthorized work. Defective or unauthorized work includes, without limitation: work and materials that do not conform to the requirements of this agreement; and extra work and materials furnished without the City’s written approval. If Contractor is unable, for any reason, to satisfactorily complete any portion of the work, the City may complete the work by contract or otherwise, and Contractor shall be liable to the City for any additional costs incurred by the City. “Additional costs” shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Contract price specified above. The City further reserves its right to deduct the cost to complete the Contract work, including any Additional Costs, from any and all amounts due or to become due the Contractor. D. Final Payment: Waiver of Claims. THE MAKING OF FINAL PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL PRECLUDE ALL CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. E. 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 services are not completed within the time specified in Article 2 herein plus any extensions thereof allowed in accordance with Section7 of this agreement. They also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by the CITY if the services are 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. F. Payment procedures. CONTRACTOR shall submit Applications for Payment in accordance with Exhibit E, the Schedule of Values, which may be modified by the Change Orders. Applications for Payment will be processed by the City as provided in Exhibit E. 3 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install G. Fees. Except for fees that are the responsibility of the Contractor, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 4. INDEPENDENT CONTRACTOR. Contractor is and shall be at all times acting as an independent contractor and not as an employee of the City. The Contractor shall secure at its expense, and shall be responsible for all payments of income tax, social security, state disability insurance compensation, unemployment compensation, and all other payroll deductions for the Contractor, officer, agents, employees and sub-contractors. The Contractor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Contractor's officers, agents, employees and sub- contractors. 5. TERMINATION. The City may terminate this agreement for good cause. “Good cause” shall include, without limitation, any one or more of the following events: A. The Contractor’s refusal or failure to supply a sufficient number of properly skilled workers or proper materials for completion of the Contract work. B. The Contractor’s failure to complete the work within the time specified in this agreement. C. The Contractor’s failure to make full and prompt payment to sub- contractors or for material or labor. D. The Contractor's failure to comply with staff training and implementation modules. E. The Contractor’s persistent disregard of federal, state or local laws, rules or regulations. F. The Contractor’s filing for bankruptcy or becoming adjudged bankrupt. If the City terminates this agreement for good cause, the Contractor shall not receive any further monies due under this agreement until the Contract work is completed. 6. PREVAILING WAGES. Contractor shall file a “Statement of Intent to Pay Prevailing Wages” with the State of Washington Department of Labor & Industries prior to commencing the Contract work. Contractor shall pay prevailing wages and comply with Chapter 39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate provisions. The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached to Exhibit C. 7. CHANGES. The City may issue a written work change directive for any change in the Contract work during the performance of this agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the City’s project manager within two (2) business days of the date the Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor’s costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. 4 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving a written work change directive or change order from the City. If the Contractor fails to require a change order within the time allowed, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment the Contractor must complete the change order work; however, the Contractor may elect to protest the adjustment as provided below: A. Procedure and Protest by the Contractor. If the Contractor disagrees with anything required by a work change directive or change order, including any direction, instruction, interpretation, or determination by the City, the Contractor shall: a. Immediately give a signed written notice of protest to the City; b. Supplement the written protest within fourteen (14) calendar days with a written statement that provides the following information: i. The date of the Contract’s protest. ii. The nature and circumstances that caused the protest. iii. The provisions in this agreement that support the protest. iv. The estimated dollar cost, if any, of the protested work and how that estimate was determined. v. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. B. Complete Records. The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Contractor’s records needed for evaluating the protest. C. Evaluation. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. D. Contractor’s Duty to Complete Protested Work. In spite of any protest, the Contractor shall proceed promptly with the work as the City has ordered. E. Contractor’s Acceptance of Changes. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. F. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written order (including directions, instructions, interpretations, and determination). G. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts form the City any written order (including directions, instructions, interpretations, and determination). 5 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install 8. CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Contractor’s written claim must include the information set forth regarding protests in Section 7.A.2.a-e..FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete. 9. WARRANTY. The Contractor shall correct all defects in workmanship, and materials within one year from the date of the City’s acceptance of the Contract work, including work that was done by sub-contractors. When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officer, 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 injuries and damages caused by the City’s sole negligence. The City’s inspection or acceptance of any of Contractor’s work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, then, in the event 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 Contractor and the City, its officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor’s negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this agreement. 11. CONSTRUCTION ZONE WORKER SAFETY. The CONTRACTOR will comply at all times with its Health and Safety Plan. The Health and Safety Plan must be received by the CITY prior to mobilization and comply with current OSHA and WISHA standards for the applicable work. Construction safety is the sole responsibility of the contractor and safety requirements are to be upheld 6 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install by contractors and subcontractors on site. Minimum requirements for personal protective equipment at the work site include hard hat, safety glasses, type 2 vest or shirt, and sturdy work boots. Contractor acknowledges the CITY’s designated Safety Officer is an agent of the Engineer. The Engineer or the designated Safety Officer may stop work on site for any condition deemed unsafe, until the condition is corrected. 12. INSURANCE. The Contractor shall procure and maintain for the duration of this agreement insurance of the types and in the amounts described below against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by the Contractor, its agents, representative, employees, sub-consultants or sub- contractors. Before beginning work on the project described in this agreement, the Contractor shall provide a Certificate of Insurance evidencing: 1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU); and employer’s liability. 3. Excess Liability insurance with limits not less than $1,000,000 per occurrence and aggregate. Any payment of deductible or self-insured retention shall be the sole responsibility of the Contractor. The City, its officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The Contractor’s 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 6the Street, Suite 100, Bremerton, WA 98337 within 30 days of the cancellation or suspension of any insurance policy set out herein, and failure to do so shall be construed to be a breach of this Agreement. 13. MISCELLANEOUS. A. Nondiscrimination. In the hiring of employees for the performance of work under this Agreement or any sub-contract hereunder, the Contractor, its sub-contractors, or any person acting on behalf of such Contractor or sub-contractor shall not, by reason of race, religion, color, sex, national origin, or the presence of any sensory, mental, physical disability, or sexual 7 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install orientation discriminate against any person who is qualified and available to perform the work to which the employment relates. B. Compliance with Laws. Contractor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this agreement. C. Work Performed at Contractor’s Risk. Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this agreement. All work shall be done at Contractor’s own risk, and Contractor 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. D. Nonwaiver of Breach. The failure of the City to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of those terms and rights and they shall remain in full force and effect E. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. F. Attorney’s Fees. To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties’ performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney’s fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City’s right to indemnification under Section 10 of this agreement. G. Written Notice. All communications regarding this agreement shall be sent to the parties at the addresses listed on the signature page of this agreement, unless otherwise notified. Any written notice shall become effective upon delivery, but in any event three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this agreement. H. Assignment. Any assignment of this agreement by the Contractor without the written consent of the City shall be void. I. Modification. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor. J. Severability. If any one or more sections, sub-sections, or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this agreement and the remainder shall remain in full force and effect K. Contract Documents. The contract documents that comprise the entire agreement between the City and the Contractor concerning the services, consists of this Contract and the following attachments to this Contract: i. The information required of the Contractor, and all required certificates and 8 PUBLIC WORKS AGREEMENT | Flexnet System Purchase and Install affidavits, warranties and manufacturer's specifications. ii. Performance Bond iii. Payment Bond iv. Exhibits and Appendices v. Contract plans and drawings vi. SAAS agreement L. Entire Agreement. The written provisions and terms of this agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be construed as forming a part of or altering in any manner this agreement. This agreement and any attached Exhibits contain the entire agreement between the parties. Should any language in any Exhibit to this agreement conflict with any language contained in this agreement, the terms of this agreement shall prevail. IN WITNESS WHEREOF, the parties below have executed this agreement. FERGUSON WATERWORKS, INC. THE CITY OF BREMERTON Print Name:_______________________ Print Name: Greg Wheeler Title:______________________________ Title: Mayor DATE DATE __________________ Notices to be sent to: Notices to be sent to: CONTRACTOR: CITY OF BREMERTON: FERGUSON WATERWORKS, INC. Attn: Melinda Monroe Contracts Administrator City of Bremerton 345 6th Street, Suite 100 Bremerton, WA 98337 (360) 473-5306 melinda.monroe@ci.bremerton.wa.us APPROVED AS TO FORM: Roger A. Lubovich Bremerton City Attorney ATTEST: Angela Hoover, City Clerk PUBLIC WORKS AGREEMENT (Between City of Bremerton and Ferguson Waterworks EXHIBIT A: P lans and Specifications We are pleased to quote the following labor, equipment, and materials in accordance with the plans and specifications listed above. This proposal is subject to exclusions that may be listed below. Scope of work for the project to be constructed as depicted in the plans and details as described herein: JOB A: NAME & LOCATION: Reservoir #20 Proposal Scope: Installation of Senses equipment on 100’ Utility Pole 1.Provide and install 100’ Utility pole 2.Crane to lift Pole and Digger derrick to drill 20’ hole 3.Provide Tower crew with Vehicle and associated tools to perform work 4.Installation of Senses M400 Base Station cabinet at base of utility pole 5.Installation of 7/8 Coax and connectors at RAD Center (80’) 6.Installation of 1 ground bar and Coax ground kits 7.Installation of Omni antenna and Chain Mount at top of utility pole 8.Hoisting grips and Misc. hardware for Coax installation on pole 9.Perform final sweep test 10.Provide closeout documents • Electrical excluded City to perform Grand Total: $ 35,000.00 JOB B: NAME & LOCATION: Reservoir #6 Proposal Scope: Installation of Senses equipment and Antenna on Water Tank 1.Provide Tower crew with Vehicle and associated tools to perform work 2.Installation of Senses M400 Base Station cabinet inside existing shelter 3.Band Climbing leg with banding and blocks every 4’ 4.Installation of 7/8 Coax and connectors at top of tower railing (Rad Center 140’) 5.Installation of 2 ground bars and Coax ground kits 6.Installation of Omni antenna and Pipe to Pipe mount on existing handrail 7.Hoisting grips and Misc. hardware for Coax installation on tower 8.Perform final sweep test 9.Provide closeout documents a.Electrical excluded City to perform Grand Total: $ 24,450.00 EXHIBIT A: P lans and Specifications PUBLIC WORKS AGREEMENT (Between City of Bremerton and Ferguson Waterworks JOB C: NAME & LOCATION: Cheryl Street Self Support Tower Proposal Scope: Installation of Senses equipment on existing Self Support Tower 1.Provide Tower crew with Vehicle and associated tools to perform work 2.Installation of Senses M400 Base Station cabinet inside existing shelter 3.Installation of 7/8 Coax and connectors at top of tower railing 4.Installation of 2 ground bars and Coax ground kits 5.Installation of Omni antenna and Pipe to Pipe mount on existing handrail 6.Hoisting grips and Misc. hardware for Coax installation on tower 7.Perform final sweep test 8.Provide closeout documents Electrical excluded City to perform Grand Total: $ 26,710.00 JOB D: NAME & LOCATION: Alexander North ATC Tower Proposal Scope: Installation of Senses equipment on existing Self Support Tower 1.Provide Tower crew with Vehicle and associated tools to perform work 2.Installation of Senses M400 Base Station cabinet inside existing shelter 3.Installation of 7/8 Coax and connectors at RAD Center (90’) 4.Installation of 2 ground bars and Coax ground kits 5.Installation of Omni antenna and Pipe to Pipe mount on tower cross member 6.Hoisting grips and Misc. hardware for Coax installation on tower 7.Ice Bridge from H-Frame to Cable ladder 8.Perform final sweep test 9.Provide closeout documents Electrical excluded City to perform Grand Total: $ 27,075.00 All Sites Exclusions- Premium time, Permits, Inspection fees, delays by others, unforeseen conditions GENERAL NOTES INSTALLATION OF 100' UTILITY POLE BURIED 15' LEAVING US WITH OVERALL HEIGHT OF 85' Omni antenna RAD center at 85' RAD CENTER AT 85' 7/8 HELIAX COAX WITH GROUNDS AT TOP AND BOTTOM. CENSUS CABINET ATTACHED TO POLE. Chain Mount POWER SUPPLIED BY OTHERS. 100' class2 Utility pole POWER buried at 15' total height 85' POWER TO BE SUPPLIED BY CITY OF BREMERTON 7/8 Coax Heliax FIBER Census cabinet placed at woring height. Electrical for 30amp breaker supplied by others. #2 bare tinned cooper ground with 8' ground rod SITE ADDRESS: 400 Ridge Lane NE Bremerton, Wa LATTITUDE: 47.611714 LONGITUDE:-122.542519 SCALE: PROJECT NAME: Reservior #20 SHEET NUMBER: 1 Drawing D-1 SHEET NAME: EXHIBIT A: Plans and Specifications GENERAL NOTES INSTALLATION OF OMNI ANTENNA ON TOP OF EXISTING WATER TANK RAD CENTER AT 85' 7/8 HELIAX COAX WITH GROUNDS AT TOP OF WATER TANK AND INSIDE EXISTING BUILDING. CENSUS CABINET INSIDE BUILDING LOCATION POWER SUPPLIED BY OTHERS. POWER POWER TO BE SUPPLIED BY CITY OF BREMERTON FIBER 5144 W. Francis Street, Bremerton, WA LATTITUDE: 47.555836 LONGITUDE:-122.684196 SCALE: SHEET NUMBER: PROJECT NAME: Cheryl Street 1 EXHIBIT A: Plans and Specifications Reservoir #6 EXHIBIT A: Plans and Specifications EXHIBIT A: Plans and Specifications GENERAL NOTES INSTALLATION OG OMNI ANTENNA ON TOP OF EXISTING SELF SUPPORT TOWER RAD CENTER AT 85' 7/8 HELIAX COAX WITH GROUNDS AT TOP AND BOTTOM. CENSUS CABINET INSIDE BUILDING LOCATION POWER SUPPLIED BY OTHERS. POWER Cheryl Street Building POWER TO BE SUPPLIED BY CITY OF BREMERTON FIBER SITE ADDRESS: 1925 NE Cheryl Street Bremerton, Wa LATTITUDE: 47.602123 LONGITUDE:-122.617468 SCALE: PROJECT NAME: Cheryl Street SHEET NUMBER: 1 Drawing D-1 SHEET NAME: EXHIBIT A: Plans and Specifications Cheryl Street Tower 7/8 Heliax Coax Census Electrical by others Existing port hole for penetration trough building Census cabinet location Coax on existing hangers and Ice bridge for protection from falling Ice 7/8 heliax coax GENERAL NOTES INSTALLATION OG OMNI ANTENNA ON TOP OF EXISTING SELF SUPPORT TOWER RAD CENTER AT 85' 7/8 HELIAX COAX WITH GROUNDS AT TOP AND BOTTOM. CENSUS CABINET INSIDE BUILDING LOCATION POWER SUPPLIED BY OTHERS. POWER POWER TO BE SUPPLIED BY CITY OF BREMERTON FIBER SITE ADDRESS:1925 NE Cheryl Street Bremerton, Wa LATTITUDE: 47.602123 LONGITUDE:-122.617468 SCALE: PROJECT NAME: Cheryl Street SHEET NUMBER: 2 Drawing D-1 SHEET NAME: EXHIBIT A: Plans and Specifications GENERAL NOTES INSTALLATION OG OMNI ANTENNA ON TOP OF EXISTING SELF SUPPORT TOWER RAD CENTER AT 85' 7/8 HELIAX COAX WITH GROUNDS AT TOP AND BOTTOM. CENSUS CABINET INSIDE BUILDING LOCATION POWER SUPPLIED BY OTHERS. POWER POWER TO BE SUPPLIED BY CITY OF BREMERTON FIBER SITE ADDRESS:1925 NE Cheryl Street Bremerton, Wa LATTITUDE: 47.602123 LONGITUDE:-122.617468 SCALE: PROJECT NAME: Cheryl Street SHEET NUMBER: 3 Drawing D-1 SHEET NAME: EXHIBIT A: Plans and Specifications American Tower Scope of Work 10 Presidential Way Woburn, MA 01801 ATC Tower Name: Alexander Lake North Tower site 83092 ATC Tower Number: 83092 Customer: City of Bremerton Colo Project # (if available): Approved for use by (Name and Title of ATC Employee): Jason Orrick APM Requested by (Your name and position): Melinda Monroe, Contracts Administrator (All information below needs to be completed in order for ATC to review) Please list all equipment that you will be installing on the tower site. Include the following for each piece of equipment: Elevation of equipment; Model and Manufacturer; Coax lines attached to the equipment and how you plan to run the coax to the antenna (list face if SS or Guyed) or inside/out (if monopole). If an ATC Structural has been performed on the site, make sure the coax information guidelines match your description below. -Elevation 1(# of Antennas/ # of Lines): RAD Center 195 with 1 Omni antenna and 1 run of 7/8 Heliax coax attached to existing wave guide ladder. -Elevation 2(# of Antennas/ # of Lines): -Elevation 3(# of Antennas/ # of Lines): -Elevation 4(# of Antennas/ # of Lines): -Additional Elevations (if necessary): COAX Description: 7/8 Heliax Coax attached to existing Wave Gauide Will you be removing any existing equipment off of the tower site? If so, please list the specific equipment you are removing. Include the following for each piece of equipment: Elevation of equipment; Model and Manufacturer; Coax lines attached to the equipment. N/A Will you be removing any equipment from the existing footprint? If so, please list the equipment you will be removing and its current location. N/A Will you be adding any equipment in the existing footprint? If so, please list the exact size in feet and inches and please sketch the placement of the ground equipment below and any additions or changes to the electrical work (Please do a rough sketch of the compound in the space provided below or attach signed version of ATC’s Compound Sketch): EXHIBIT A: Plans and Specifications American Tower Scope of Work 10 Presidential Way Woburn, MA 01801 List all grounding work that needs to be completed on site and where you plan to install. Rad Center 195’ Coax and Antenna ground to new Buss Bar on tower. Grounding at ground level will be Ground Rod for new Sensus cabinet and H- Frame at lease area. EXHIBIT A: Plans and Specifications AQG-10007-02 M400B Cabinet Quick Start Installation Guide The M400B is designed for pole mounting applications and the mounting hardware will accommodate varying applications and pole types. Pole installations should be on a minimum nine inch wood, metal, or concrete type pole. The pole mounting bracket can accommodate bolts, stainless steel strapping or a combination of both. •17mm socket with extension for the bolts that attach the cabinet to the mounting bracket. •Two 1/2” diameter machine bolts (UNC thread); SAE (Grade 5 or better), length to suit the pole (not provided) •Two 1/2” diameter (I.D.) zinc-plated flat washers •Two 1/2” diameter (I.D.) hex nuts (UNC thread) •Auger or drill for boring 9/16” diameter holes in the wood pole MOUNT THE CABINET 1.Remove the mounting bracket from the enclosure and use it as a template to drill 2 holes into the pole. Follow local practices for drilling the holes. 2.Secure the mounting bracket to the pole with the specified machine bolts. 3.Hook the top of the mounting bracket under the enclosure attachment fitting. 4.Secure the cabinet to the mounting bracket. 5.As an option, you can use utility grade stainless steel pole straps to thread through the provided slots up to 2 1/2” wide with a minimum of 3 (of the wide type) if this is the primary support. Installation Description Required Hardware/Equipment (for Bolted Installations) Figure 1: Cabinet Mounting EXHIBIT A: Plans and Specifications BONDING/GROUNDING Each M400B cabinet is equipped with a master ground bar (MGB) that should be used for all ancillary non AC type (lightning ground) bonding connections, along with three pre-cut conduit openings (1/2, 3/4, and 1”) sized to accommodate industry standard seal-type conduit fittings, and three watertight plugs. 1.After the cabinet is mounted, attach a #6 AWG minimum (#2 preferred) stranded or equivalent braided ground conductor to the master ground bar using a 3/8” diameter double-hole lug on a 1” center with hex bolts. Torque securely. 2.Remove one of the three water tight plugs from the base of the cabinet and run the #6 AWG (#2 preferred) stranded or equivalent braided ground conductor through the connector using the desired type and size of conduit as appropriate. 3.Connect the opposite end of the conductor running from the master ground bar to the appropriate lightning ground system; a ground source of 5 ohms or less is recommended. 4.Connect another ground conductor to the 1/4” diameter double-hole lug on a 5/8” center located on the back of the cabinet at the lower rear and then connect it to the appropriate lightning ground system. The cabinet and the master ground bar connection must be attached to the same ground wire source. CONNECT AC POWER 1.Make sure that all three AC breakers are in the OFF position. 2.Remove the water tight plug from the base of the cabinet for the intended conduit attachment; any unused plugs should remain in place. Install the conduit, using the desired type and size of conduit as appropriate. 3.Base the input wiring size on voltage drop considerations and NEC Table 310-16 for copper wire. The AC power conductor size must be in the #10- #16 range. A 120 Volt, 15 Amp minimum circuit is required. 4.Connect the AC feed to the AC Input terminal block. Attach to the lugs marked L, N, and G as appropriate. CONNECT THE BACKHAUL & ANTENNA 1.Connect the backhaul to the front of the transceiver using the provided ethernet cable. 2.There are two bulkhead connectors located to the right of the battery shelf on the bottom of the cabinet. The front connector is for the lightning arrestor for the FlexNet transceiver. Connect the antenna cable to this connector if not connected already. Installation cont. Figure 2: Master Ground Bar Figure 3: Plug Locations in the Cabinet Base AQG-10007-02 Page 2 of 4 Figure 4: Lighting Arrestor Location EXHIBIT A: Plans and Specifications 3.The rear connector is for optional use when connecting auxiliary equipment. If this is applicable to your installation, install the necessary lightning arrestor and any other hardware as needed. 4.Connect the antenna as appropriate. Installation cont. Battery temperature sensor Connect positive enclosure battery cable to positive terminalConnect negative enclosure battery cable to negative terminal Inter-unit connector AC BREAKERS 1.Turn all three AC breakers to the ON position. The power supply should start up normally. 2.Turn on the transceiver, if desired, using the switch on the front panel. Figure 5: Battery Connections Battery #1 Battery #2 BATTERY NOTE: BATTERIES ARE TYPICALLY PRE-INSTALLED AND CONNECTED 1.Turn off the battery breaker if it is not off. 2.Connect the battery cables leading from the Anderson style quick disconnect to the corresponding battery terminals. 3.Torque all connections according to the battery specifications. 4.Connect the Anderson style quick disconnect. 5.Turn the battery breaker on. AQG-10007-02 Page 3 of 4 EXHIBIT A: Plans and Specifications 8601 Six Forks Road, Suite 700 Raleigh, NC 27615 1-800-638-3748 © Copyright 2013, Sensus. All Rights Reserved. This document is for informational purposes only. No part of this publication may be reproduced, transmitted, stored in a retrieval system, or granulated into any language in any form by any means, without the written permission of Sensus. SENSUS MAKES NO EXPRESS WARRANTIES IN THIS DOCUMENT. FURTHERMORE, THERE ARE NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WAR- RANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. ANY USE OF THE PRODUCTS THAT IS NOT SPECIFICALLY PERMITTED HEREIN IS PROHIBITED. Warning! The antenna used for this transmitter must not be co-located in conjunction with any other antenna or transmitter. Attention! For Class B - Unintentional Radiators: This device complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) this device may not cause harmful interference and (2) this device must accept any interference received, including interference that may cause undesired operation. Warning! Hazardous voltages are present: to reduce the risk of electric shock and danger to personal health, follow instructions provided in the product manual. Attention! Any modifications made to this device that are not approved by Sensus may void the authority granted to the user by the FCC to operate equipment. Attention! ICES-003 Class B Notice—Avis NMB-003, Classe B This Class B digital apparatus complies with Canadian ICES-003. Cet appareil numerique de la classe B est conforme à la norme NMB-003 du Canada. Warning! For products with multiple power cords, all power cords must be disconnected to completely remove power from the system. Warning! There is danger of explosion if batteries are mishandled or incorrectly replaced. On systems with replaceable batteries, replace only with the same manufacturer and type or equivalent type recommended per the instructions provided in the product manual. Do not disassemble batteries or attempt to recharge them outside the system. Do not dispose of batteries in fire. Dispose of batteries properly in accordance with the manufacturer’s instructions and local regulations. Attention! Note: This equipment has been tested and found to comply with the limits for a Class B digital device, pursuant to Part 15 of the FCC Rules. These limits are designed to provide reasonable protection against harmful interference in a residential installation. This equipment generates, uses, and can radiate radio frequency energy and, if not installed and used in accordance with the instructions, may cause harmful interference to radio communications. However, there is no guarantee that interference will not occur in a particular installation. If this equipment does cause harmful interference to radio or television reception, which can be determined by turning the equipment off and on, the user is encouraged to try to correct the interference by one or more of the following measures: • Reorient or relocate the receiving antenna • Increase the separation between the equipment and receiver • Connect the equipment into an outlet on a circuit different form that to which the receiver is connected • Consult the dealer or an experienced radio/TV technician for help Attention! Do not dispose in fire, mix with other battery types, charge above specified rate, connect improperly, or short circuit, which may result in overheating, explosion or leakage of cell contents. Attention! This radio is intended for use in occupational/controlled conditions, where users have full knowledge of their exposure and can exercise control over their exposure to meet FCC limits. This radio device is NOT authorized for general population, consumer or any other use. RF Radiation Hazard! In order to satisfy the FCC RF exposure limit for transmitting devices, a separation distance of 1.52m (5 ft.) or more should be maintained while operating the Sensus M400 Transceiver. To ensure compliance, operations at closer than this distance are not recommended. This minimum safe distance is required between personnel and this antenna of this device. Attention! This device complies with Industry Canada license-exempt RSS standard(s). Operation is subject to the following two conditions: (1) this device may not cause interference, and (2) this device must accept any interference, including interference that may cause undesired operation of the device. Le présent appareil est conforme aux CNR d’Industrie Canada applicables aux appareils radio exempts de licence. L’exploitation est autorisée aux deux conditions suivantes : (1) l’appareil ne doit pas produire de brouillage, et (2) l’utilisateur de l’appareil doit accepter tout brouillage radioélectrique subi, même si le brouillage est susceptible d’en compromettre le fonctionnement. Attention! This radio transmitter, M400 Transceiver, has been approved by Industry Canada to operate with the antenna types listed below with the maximum permissible gain and required antenna impedance for each antenna type indicated. Antenna types not included in this list, having a gain greater than the maximum gain indicated for that type, are strictly prohibited for use with this device. Le présent émetteur radio, M400 Transceiver, a été approuvé par Industrie Canada pour fonctionner avec les types d’antenne énumérés ci-dessous et ayant un gain admissible maximal et l’impédance requise pour chaque type d’antenne. Les types d’antenne non inclus dans cette liste, ou dont le gain est supérieur au gain maximal indiqué, sont strictement interdits pour l’exploitation de l’émetteur. • DIPOLE 10dBd Attention! Under Industry Canada regulations, this radio transmitter may only operate using an antenna of a type and maximum (or lesser) gain approved for the transmitter by Industry Canada. To reduce potential radio interference to other users, the antenna type and its gain should be so chosen that the equivalent isotropically radiated power (e.i.r.p.) is not more than that necessary for successful communication. Conformément à la réglementation d’Industrie Canada, le présent émetteur radio peut fonctionner avec une antenne d’un type et d’un gain maximal (ou inférieur) approuvé pour l’émetteur par Industrie Canada. Dans le but de réduire les risques de brouillage radioélectrique à l’intention des autres utilisateurs, il faut choisir le type d’antenne et son gain de sorte que la puissance isotrope rayonnée équivalente (p.i.r.e.) ne dépasse pas l’intensité nécessaire à l’établissement d’une communication satisfaisante. Warning! ANTENNAS: An outdoor antenna system should not be located in the vicinity of overhead power lines or other electric light or power circuits, or where it can come in contact with such power lines or circuits as death or serious injury can occur. Be sure the antenna ysstem is grounded so as to provide some protection against voltage surges and built-up static charges. Section 810 of the National Electric Code (NEC) in the U.S.A. provides information with respect to proper grounding of the mast and supporting structure, grounding of the lead-in wire to an antenna discharge unit, size of grounding conductors, location of antenna discharge unit, connection to grounding electordes and requirements for the grounding electrode. Antenna grounding shall be according to the National Electrical Code, ANSI/NFPA 70. Compliance Statements AQG-10007-02 Page 4 of 4 EXHIBIT A: Plans and Specifications DATA SHEET ADS-10009-01 FlexNet M400B2 Base Station Compact Point-to-Multipoint Base Station The Sensus FlexNet® M400B2 Base Station offers a strategic communications option for public service providers with endpoints deployed in remote or densely populated areas. The efficient transceiver can transmit and receive in a 200kHz band of spectrum. 200kHz enables more dedicated channels, resulting in higher network capacity, allowing more granular data and more channels of data. And the Sensus FlexNet communication network delivers double the transmit power of competitive systems over primary-use licensed spectrum – ensuring reliability for mission critical applications. The tower-based architecture enables reliable communication of status and usage information with fewer access points than other network architectures. These compact, efficient base stations fit in space- constrained environments and require no air conditioning. Licensed Radio Spectrum In North America, FCC/IC protected primary-use spectrum avoids competition with other wireless services, interference from other radio devices and the risk of being taken over by emergency service providers Fewer Access Points Our point-to-multipoint architecture directly connects base stations to endpoints over large geographic areas – greatly reducing the number of network backhaul connections as well as O&M costs Resilient Network Design Sensus Base Stations continue to provide real time data during outages and emergencies because of eight hour plus battery backup – enabling better workforce management and faster service restoration Small Footprint Flexible pole or wall-mounting options enable strategic deployment with a discreet appearance Industry Leading Security Sensus has achieved GE/Wurldtech™ Achilles® communications certification for critical infrastructure security against cyber threats FEATURES GPS receiver for time synchronization Duplexer for single antenna IP-addressable power supply with hot- swap capability 8-hour battery backup Alarms and reporting capability Backhaul via Ethernet/IP Heated battery for cold weather environ- ments Modular construction for easy serviceability APPLICATIONS Two-way Advanced Meter Infrastructure (AMI) Distribution Automation (DA) Demand Response (DR) Home Area Networks (HAN) Sensus VantagePoint® Lighting Control EXHIBIT A: Plans and Specifications ©2018 Sensus. All products purchased and services performed are subject to Sensus’ terms of sale, available at either https://sensus.com/TC or 1-800-638-3748. Sensus reserves the right to modify these terms and conditions in its own discretion without notice to the customer. The Sensus logo is a registered trademark of Sensus. This document is for informational purposes only, and SENSUS MAKES NO EXPRESS WARRANTIES IN THIS DOCUMENT. FURTHERMORE, THERE ARE NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. ANY USE OF THE PRODUCTS THAT IS NOT SPECIFICALLY PERMITTED HEREIN IS PROHIBITED. 8601 Six Forks Rd, Ste 700 Raleigh, NC 27615 1-800-638-3748 sensus.com FlexNet® M400B2 Base Station Compact Point-to-Multipoint Base Station Enclosures - Outdoor - Pole/Wall Mount Height 22” (55.9 cm) Width x Depth 22” (55.9 cm) x 10.5” (26.7 cm) Capacity One transceiver Temperature -40º to +122º F (-40º to +50º C) Voltage 120 VAC Battery backup 8 hours NEMA rating 4 Air conditioned No Properties Receive bandwidth 200 KHz Transceivers Single Spectrum Licensed 900 MHz PCS/MAS Duplexing Single transmit Sixteen receivers - simultaneous/dedicated Applications Single Expandability No Compatibility SNMP FlexNet Requires RNI 3.x or newer EXHIBIT A: Plans and Specifications 8601 Six Forks Road, Suite 700 Raleigh, NC 27615 1-800-638-3748 Sensus Limited Warranty G-500 R22 1.General Product Coverage. Unless otherwise provided herein, Sensus USA Inc. (“Sensus”) warrants its products and parts to be free from defects in material and workmanship for one (1) year from the date of Sensus shipment and as set forth below. All products are sold to customer (“Customer”) pursuant to Sensus’ Terms of Sale, avail- able at: sensus.com/TC (“Terms of Sale”). 2.SR II® and accuSTREAM™ 5/8”, 3/4” & 1” Meters are warranted to perform to AWWA New Meter Accuracy Standards for five (5) years from the date of Sensus shipment or until the registration shown below, whichever occurs first. Sensus further warrants that the SR II and accuSTREAM meters will perform to at least AWWA Repaired Meter Accuracy Standards for fifteen (15) years from the date of Sensus shipment or until the registration shown below, whichever occurs first: New Meter Accuracy Repair Meter Accuracy 5/8” SR II Meter and accuSTREAM Meter 500,000 gallons 1,500,000 gallons 3/4” SR II Meter and accuSTREAM Meter 750,000 gallons 2,250,000 gallons 1” SR II Meter and accuSTREAM Meter 1,000,000 gallons 3,000,000 gallons 3.ally® Meters that register water flow are warranted to perform to the accuracy level set forth in the ally Data Sheet available at sensus.com/ally/datasheet for fifteen (15) years from the Date of Installation, but no longer than sixteen (16) years from date of manufacture, not including the meter’s sensors, valve, and gear motor, which are warranted under different terms described below. As used herein, “Date of Installation” means the date after which the ally Meter has been out of empty pipe for seven (7) consecutive days, as those days are measured by the ally Meter and stored in the meter’s nonvolatile memory. 4.iPERL® Meters that register water flow are warranted to perform to the accuracy levels set forth in the iPERL Data Sheet available at sensus.com/iperl/datasheet or by request from 1-800-METER-IT, for twenty (20) years from the date of Sensus shipment. The iPERL System Component warranty does not include the external housing. 5. Maincase of the SR II in both standard and low lead alloy meters are warranted to be free from defects in material and workmanship for twenty-five (25) years from the date of Sensus shipment. Composite and E-coated maincases will be free from defects in material and workmanship for fifteen (15) years from the date of Sensus shipment. 6. Sensus OMNI™ Meters and Propeller Meters are warranted to perform to AWWA New Meter Accuracy Standards for one (1) year from the date of Sensus shipment. 7.Sensus accuMAG™ Meters are warranted to be free from defects in material and workmanship, under normal use and service, for 18 months from the date of Sensus shipment or 12 months from startup, whichever occurs first. 8.Sensus Registers are warranted to be free from defects in material and workmanship from the date of Sensus shipment for the periods stated below or until the applicable registration for AWWA Repaired Meter Accuracy Standards, as set forth above, are surpassed, whichever occurs first: 5/8” thru 2” SR II, accuSTREAM Standard Registers 25 years 5/8” thru 2” SR II, accuSTREAM Encoder Registers 10 years All HSPU, IMP Contactor, R.E.R. Elec. ROFI 1 year Standard and Encoder Registers for Propeller Meters 1 year OMNI Register with Battery 10 years 9. Sensus Electric and Gas Meters are warranted pursuant to the General Limited Warranty available at sensus.com/TC. 10. Batteries, iPERL System Components, AMR and FlexNet® Communication Network AMI Interface Devices are warranted to be free from defects in material and workmanship from the date of Sensus shipment for the period stated below: Electronic TouchPad 10 years Act-Pak® Remote Monitoring Instruments 1 year Gas SmartPoint® Modules and Batteries 20 years1 6500 series Hand-Held Device 2 years Vehicle Gateway Base Station (VGB) and other AMR Equipment 1 year FlexNet Base Station (including the R100NA and M400 products) 1 year iPERL System Battery and iPERL System Components 20 years2 Sensus® Electronic Register+™ 20 years1 Sensus® Smart Gateway Sensor Interface 1 year SmartPoint® 510M/520M Modules and Batteries 20 years2 Footnote 1: Sensus will repair or replace non-performing: •Gas SmartPoint Modules (configured to the factory setting of six transmissions per day under normal system operation of up to one demand read to each SmartPoint Module per month and up to five firmware downloads during the life of the product) and batteries; •Sensus Electronic Register+ with hourly reads for the first ten (10) years from the date of Sensus shipment, and for the remaining ten (10) years, at a prorated percentage, applied towards the published list prices in effect for the year product is accepted by Sensus under warranty conditions according to the following schedule: Years Replacement Price Years Replacement Price 1 – 10 0% 16 55% 11 30% 17 60% 12 35% 18 65% 13 40% 19 70% 14 45% 20 75% 15 50% >20 100% Footnote 2: Sensus will repair or replace non-performing: •iPERL System Batteries, and/or the iPERL System flowtube, the flow sensing and data processing assemblies, and the register (“iPERL System Components”) with hourly reads •SmartPoint 510M/520M Modules (configured to the factory setting of six transmissions per day under normal system operation of up to one demand read to each SmartPoint Module per month and up to five firmware downloads during the life of the product) and batteries, unless the SmartPoint 510M/520M Module is ever paired with an ally Meter, which event immediately amends the warranty terms to those described in Section 11; at no cost for the first fifteen (15) years from the date of Sensus shipment, and for the remaining five (5) years at a prorated percentage, applied towards the published list price in effect for the year the product is accepted by Sensus under the warranty conditions according to the following schedule: Years Replacement Price 1 – 15 0% 16 30% 17 40% 18 50% 19 60% 20 70% >20 100% 11. ally® Meter Batteries and Components, including SmartPoint 510M/520M Modules are warranted to be free from defects in material and workmanship from the Date of Installation, as defined in Section 3, for the period stated below: Batteries 15 years3 Sensors 5 years Valve & Gear Motor 5 years4 SmartPoint 510M/520M Modules and Batteries in service w/ally 15 years3 Footnote 3: If applicable, any SmartPoint 510M/520M Modules ever paired with an ally Meter are warranted with the following limitations: o When configured to the default installation setting of six transmissions of metrology and pressure per day and one update of temperature per day, the SmartPoint is warranted to perform up to five (5) firmware upgrades for the SmartPoint Module and up to five (5) firmware upgrades for the ally Meter; o 2500 Operational Commands, where “Operational Commands” include on demand reads (such as consumption, pressure, temperature), an ally valve command, or a configuration command; and o 15 Diagnostic Commands, which includes two-way communications tests and installations for the first ten (10) years from Date of Installation at no cost. For the remaining five (5) years, Customer will pay the reduced Replacement Price of the then-current list price in effect at the time the product is accepted for return in accordance with the following schedule: Years Replacement Price Years Replacement Price 1 – 10 0% 14 65% 11 35% 15 75% 12 45% >15 100% 13 55% Footnote 4: Notwithstanding the foregoing, valve and gear motor components of ally Meters are not warranted beyond two thousand (2000) Valve State Operations, even if the warranty period provided herein has not yet expired. As used herein, “Valve State Operations” means adjustments of the Meter to open, close, or reduce flow. 12. iPERL and ally Connectors and Cables are warranted to be free from defects in materials and workmanship, under normal use and service, for ten (10) years from the date of Sensus shipment. Nicor or Itron connectors included with a Sensus product are warranted according to the terms for Third-Party Devices in Section 13. 13. Third-Party Devices are warranted to be free from defects in materials and workmanship, under normal use and service, for one (1) year from the date of Sensus shipment. As used in this Sensus Limited Warranty, “Third Party Devices” means any product, device, or component part used with a Sensus product that is manufactured or sold by any party that is not Sensus. Failure of a Third Party Device which subsequently causes failure to a Sensus device shall be the responsibility of the manufacturer of the Third Party Device. EXHIBIT B: Warranty and Implementation Training 8601 Six Forks Road, Suite 700 Raleigh, NC 27615 1-800-638-3748 14. Software. Software supplied and/or licensed by Sensus is supported according to the terms of the applicable software license or usage agreement. Sensus warrants that any network and monitoring services shall be performed in a professional and workmanlike manner. 15. Return. Sensus’ obligation, and Customer’s exclusive remedy, under this Sensus Limited Warranty is, at Sensus’ option, to either (i) repair or replace the product, provided the Customer (a) returns the product to the location designated by Sensus within the warranty period; and (b) prepays the freight costs both to and from such location; or (ii) deliver replacement components to the Customer, provided the Customer installs, at its cost, such components in or on the product (as instructed by Sensus), provided, that if Sensus requests, the Customer (a) returns the product to the location designated by Sensus within the warranty period; and (b) prepays the freight costs both to and from such location. In all cases, if Customer does not return the product within the time period designated by Sensus, Sensus will invoice, and Customer will pay within thirty days of the invoice date, for the cost of the replacement product and/or components. The return of products for warranty claims must follow Sensus’ Returned Materials Authorization (RMA) procedures. Water meter returns must include documentation of the Customer’s test results. Test results must be obtained according to AWWA standards and must specify the meter serial number. The test results will not be valid if the meter is found to contain foreign materials. If Customer chooses not to test a Sensus water meter prior to returning it to Sensus, Sensus will repair or replace the meter, at Sensus’ option, after the meter has been tested by Sensus. The Customer will be charged Sensus’ then current testing fee. All product must be returned in accordance with the RMA process. For all returns, Sensus reserves the right to request meter read- ing records by serial number to validate warranty claims. For products that have become discontinued or obsolete (“Obsolete Product”), Sensus may, at its discretion, replace such Obsolete Product with a different product model (“New Product”), provided that the New Product has substantially similar features as the Obsolete Product. The New Product shall be warranted as set forth in this Sensus Limited Warranty. THIS SECTION 15 SETS FORTH CUSTOMER’S SOLE REMEDY FOR THE FAILURE OF THE PRODUCTS, SERVICES OR LICENSED SOFTWARE TO CONFORM TO THEIR RESPECTIVE WARRANTIES. 16. Warranty Exceptions and No Implied Warranties. This Sensus Limited Warranty does not include costs for removal or installation of products, or costs for replacement labor or materials, which are the responsibility of the Customer. The warranties in this Sensus Limited Warranty do not apply to goods that have been: installed improperly or in non-recommended installations; installed to a socket that is not functional, or is not in safe operating condition, or is damaged, or is in need of repair; tampered with; modified or repaired with parts or assemblies not certified in writing by Sensus, including without limitation, communication parts and assemblies; improperly modified or repaired (including as a result of modifications required by Sensus); converted; altered; damaged; read by equipment not approved by Sensus; for water meters, used with substances other than water, used with non-potable water, or used with water that contains dirt, debris, deposits, or other impurities; subjected to misuse, improper storage, improper care, improper maintenance, or improper periodic testing (collectively, “Exceptions.”). If Sensus identifies any Exceptions during examination, troubleshooting or performing any type of support on behalf of Customer, then Customer shall pay for and/or reimburse Sensus for all expenses incurred by Sensus in examining, troubleshooting, performing support activities, repairing or replacing any Equipment that satisfies any of the Exceptions defined above. The above warranties do not apply in the event of Force Majeure, as defined in the Terms of Sale. THE WARRANTIES SET FORTH IN THIS SENSUS LIMITED WARRANTY ARE THE ONLY WARRANTIES GIVEN WITH RESPECT TO THE GOODS, SOFTWARE, SOFTWARE LICENSES AND SERVICES SOLD OR OTHERWISE PROVIDED BY SENSUS. SENSUS EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER IN CONNECTION WITH THIS SENSUS LIMITED WARRANTY OR WITH THE TERMS OF SALE, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND TITLE. SENSUS ASSUMES NO LIABILITY FOR COSTS OR EXPENSES ASSOCIATED WITH LOST REVENUE OR WITH THE REMOVAL OR INSTALLATION OF EQUIPMENT. THE FOREGOING REMEDIES ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR THE FAILURE OF EQUIPMENT, LICENSED SOFTWARE OR SOFTWARE SERVICES, AND OTHER SERVICES TO CONFORM TO THEIR RESPECTIVE WARRANTIES. 17. Limitation of Liability. SENSUS’ AGGREGATE LIABILITY IN ANY AND ALL CAUSES OF ACTION ARISING UNDER, OUT OF OR IN RELATION TO THIS AGREEMENT, ITS NEGOTIATION, PERFORMANCE, BREACH OR TERMINATION (COLLECTIVELY “CAUSES OF ACTION”) SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SENSUS UNDER THIS AGREEMENT. THIS IS SO WHETHER THE CAUSES OF ACTION ARE IN TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY, IN CONTRACT, UNDER STATUTE OR OTHERWISE. AS A SEPARATE AND INDEPENDENT LIMITATION ON LIABILITY, SENSUS’ LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES. SENSUS SHALL NOT BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; NOR (II) ANY REVENUE OR PROFITS LOST BY CUSTOMER OR ITS AFFILIATES FROM ANY END USER(S), IRRESPECTIVE OF WHETHER SUCH LOST REVENUE OR PROFITS IS CATEGORIZED AS DIRECT DAMAGES OR OTHERWISE; NOR (III) ANY IN/OUT COSTS; NOR (IV) MANUAL METER READ COSTS AND EXPENSES; NOR (V) DAMAGES ARISING FROM MAINCASE OR BOTTOM PLATE BREAKAGE CAUSED BY FREEZING TERMPERATURES, WATER HAMMER CONDITIONS, OR EXCESSIVE WATER PRESSURE. “IN/OUT COSTS” MEANS ANY COSTS AND EXPENSES INCURRED BY CUSTOMER IN TRANSPORTING GOODS BETWEEN ITS WAREHOUSE AND ITS END USER’S PREMISES AND ANY COSTS AND EXPENSES INCURRED BY CUSTOMER IN INSTALLING, UNINSTALLING AND REMOVING GOODS. “END USER” MEANS ANY END USER OF ELECTRICITY/WATER/GAS THAT PAYS CUSTOMER FOR THE CONSUMPTION OF ELECTRICITY/WATER/GAS, AS APPLICABLE. The limitations on liability set forth in this Agreement are fundamental inducements to Sensus entering into this Agreement. They apply unconditionally and in all respects. They are to be interpreted broadly so as to give Sensus the maximum protection permitted under law. EXHIBIT B: Warranty and Implementation Training Sensus Terms of Sale CF-C-TOS-00-00-0814-05-A 1. DEFINITIONS. “Customer” shall mean the party purchasing goods or services pursuant to these Terms of Sale. “Sensus” shall mean Sensus USA Inc., a Delaware corporation. “Equipment” means the Sensus goods and services sold or otherwise provided pursuant to this Agreement. Software licenses are provided solely through a separate Sensus software license. 2. CONTRACT OF SALE. All Sensus goods and services are offered for sale subject to the prices and other terms specified in (a) the applicable Sensus quotation, proposal or pricelist, and (b) these Terms of Sale, all of which are subject to the correction of clerical errors. A Customer’s purchase order or similar writing shall constitute an acceptance of the offer to sell; however, any inconsistent, additional or different terms contained in a Customer’s request for quotation or purchase order (“Additional Terms”) are hereby objected to and rejected by Sensus, and will not become part of the contract of sale unless accepted by Sensus in a writing signed by a vice president of Sensus. 3. ENTIRE AGREEMENT. These Terms of Sale, the General Limited Warranty, Customer’s purchase order (except any Additional Terms), Sensus’ Acknowledgement Form (if any), and Sensus’ invoice constitutes the entire agreement (“Agreement”) between the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, understanding or other communications, whether written or oral, formal or informal, between them. No consent, waiver, alteration, amendment, or modification shall be binding unless in writing and signed by a vice president of Sensus. 4. PRICES. All prices are subject to change based on Sensus’ selling prices in effect as of date of shipment. Prices quoted for blanket orders are subject to review and retroactive adjustment, if necessary, based on actual quantities shipped. 5. TAXES. All prices quoted are exclusive of federal, state and municipal taxes. Customer shall be liable for all sales, use and other taxes (whether local, state or federal) imposed on this Agreement or on the goods and/or services provided to Customer hereunder. 6. TITLE AND RISK OF LOSS. All Equipment is shipped Ex Works shipping point, prepay freight and add. Title to, and property in, the Equipment shall pass to Customer upon shipment. Risk of loss of the Equipment shall also pass to Customer upon shipment. 7. PAYMENT TERMS. Customer shall pay all invoices within thirty (30) days of the invoice date. Sensus reserves the right to establish credit limits for Customer and may require full or partial payment prior to shipment of any goods or commencement of any services provided hereunder. All payments shall be made via electronic payment according to instructions provided by Sensus. Any invoices not disputed in good faith by Customer which Customer does not pay within the time provided in this Agreement shall bear interest at the lower of (i) one and a half percent (1.5%) per month up to a maximum of eighteen percent (18%) per year; or (ii) the highest rate permitted by applicable law. Should Customer become delinquent in payment of sums due hereunder, Seller shall not be obligated to continue performance. 8. PACKAGING. Sensus reserves the right to select the manner in which Equipment is packaged. Quoted prices include regular packing. Special requirements for packing will be subject to extra charges. 9. DELIVERY. Shipping dates and completion dates quoted by Sensus are made in good faith but are not guaranteed; Sensus reserves the right to extend shipping dates as it deems necessary in its sole discretion, without liability to Customer. In the absence of shipping instructions from Customer, Sensus will use its discretion as to the selection of shipping services and routings. Installation of Equipment is the responsibility of the Customer unless otherwise agreed in writing. 10.FORCE MAJEURE. If Sensus becomes unable, either wholly or in part, by an event of Force Majeure, to fulfill its obligations under this Agreement, the obligations affected by the event of Force Majeure will be suspended during the continuance of that inability. Sensus will take reasonable steps to mitigate the Force Majeure. “Force Majeure” means an event beyond the reasonable control of Sensus, including acts of God, hurricane, flood, volcano, tsunami, tornado, storm, tempest, mudslide, vandalism, illegal or unauthorized radio frequency interference, strikes, lockouts, or other industrial disturbances, unavailability of component parts of any goods provided hereunder, acts of public enemies, wars, blockades, insurrections, riots, epidemics, earthquakes, fires, restraints or prohibitions by any court, board, department, commission or agency of the United States or any States, any arrests and restraints, civil disturbances and explosions. 11.CANCELLATION. Orders submitted to Sensus may not be canceled or amended, or deliveries deferred, by Customer except with Sensus’ prior written consent, and then only upon such terms as shall be acceptable to Sensus. 12.WARRANTIES. Sensus’ sole warranty and remedies associated therewith are set forth in the General Limited Warranty found at: sensus.com/tc, or available at 1-800- METER-IT, which General Limited Warranty is hereby incorporated herein by this reference. All repairs are made on an Ex Works factory basis. All transportation charges for goods returned for repairs must be prepaid by the Customer. THE WARRANTIES IN THIS SECTION ARE THE ONLY WARRANTIES GIVEN WITH RESPECT TO EQUIPMENT SOLD OR OTHERWISE PROVIDED BY SENSUS. SENSUS EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER IN CONNECTION WITH THESE TERMS OF SALE, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON- INFRINGEMENT AND TITLE. 13.INTELLECTUAL PROPERTY. No Intellectual Property is assigned to Customer hereunder. Sensus shall own or continue to own all Intellectual Property used or created in the course of performing this Agreement. To the extent, if any, that any ownership interest in and to such Intellectual Property does not automatically vest in Sensus by virtue of this Agreement or otherwise, and instead vests in Customer, Customer agrees to grant and assign and hereby does grant and assign to Sensus all right, title, and interest that Customer may have in and to such Intellectual Property. Customer agrees not to reverse engineer any Equipment purchased or provided hereunder. “Intellectual Property” means patents and patent applications, inventions (whether patentable or not), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, drawings, designs, maskwork rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction, any registrations or applications thereof, and all goodwill pertinent thereto. 14.LIMITATION OF LIABILITY. (a)SENSUS’ AGGREGATE LIABILITY IN ANY AND ALL CAUSES OF ACTION ARISING UNDER, OUT OF OR IN RELATION TO THIS AGREEMENT, ITS NEGOTIATION, PERFORMANCE, BREACH OR TERMINATION (COLLECTIVELY “CAUSES OF ACTION”) SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SENSUS UNDER THIS AGREEMENT. THIS IS SO WHETHER THE CAUSES OF ACTION ARE IN TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY, IN CONTRACT, UNDER STATUTE OR OTHERWISE. (b) (b) AS A SEPARATE AND INDEPENDENT LIMITATION ON LIABILITY, SENSUS’ LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES. SENSUS SHALL NOT BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; NOR (II) ANY REVENUE OR PROFITS LOST BY CUSTOMER OR ITS AFFILIATES FROM ANY END USER IRRESPECTIVE OF WHETHER SUCH LOST REVENUE OR PROFITS IS CATEGORIZED AS DIRECT DAMAGES OR OTHERWISE; NOR (III) ANY IN/OUT COSTS; NOR (IV) MANUAL METER READ COSTS AND EXPENSES. “IN/OUT COSTS” MEANS ANY COSTS AND EXPENSES INCURRED BY CUSTOMER IN TRANSPORTING GOODS BETWEEN ITS WAREHOUSE AND ITS END USER’S PREMISES AND ANY COSTS AND EXPENSES INCURRED BY CUSTOMER IN INSTALLING, UNINSTALLING AND REMOVING GOODS. “END USER” MEANS ANY END USER OF ELECTRICITY/WATER/GAS THAT PAYS CUSTOMER FOR THE CONSUMPTION OF ELECTRICITY/WATER/GAS, AS APPLICABLE. (c)The limitations on liability set forth in this Agreement are fundamental inducements to Sensus entering into this Agreement. They apply unconditionally and in all respects. They are to be interpreted broadly so as to give Sensus the maximum protection permitted under law. (d)To the maximum extent permitted by law, no Cause of Action may be instituted by Customer against Sensus more than TWELVE (12) MONTHS after the Cause of Action first arose. In the calculation of any damages in any Cause of Action, no damages incurred more than TWELVE (12) MONTHS prior to the filing of the Cause of Action shall be recoverable. 15.INDEMNIFICATION. Customer agrees to defend, indemnify and hold harmless Sensus from and against all claims, liabilities, demands, damages, losses, costs and expenses, in law or in equity, of every kind and nature whatsoever (collectively, “Losses”), to the extent arising out of Customer’s use of the Equipment,, except to the extent such Losses arise out of a breach of this Agreement by Seller. 16.CONFIDENTIALITY. Customer shall (and shall cause its employees and contractors to) keep all Sensus Confidential Information strictly confidential and shall not disclose it to any third party or use it, except to the extent reasonably required to perform and enforce this Agreement or as required under applicable law, court order or regulation. As used herein, “Sensus Confidential Information” means any and all non-public information of Sensus, including the terms of this Agreement, all technical information about products or services, pricing information, marketing and marketing plans, Equipment performance, Equipment architecture and design, other business and financial information, software and all trade secrets. Sensus Confidential Information may be transmitted orally, in writing, electronically or otherwise observed by Customer. Notwithstanding the foregoing, “Sensus Confidential Information” shall not include: (i) any information that is in the public domain other than due to Customer’s breach of this Agreement; (ii) any information in the possession of the Customer without restriction prior to disclosure by Sensus; or (iii) any information independently developed by the Customer without reliance on or access to the information disclosed hereunder by Sensus. 17.RETURNS. No Equipment may be returned for credit or repair without the prior written authorization of Sensus. Authorized return shipments must be returned in good condition to Sensus’ designated receiving point, must be accompanied by a packing slip, including Sensus’ Return Authorization Number, and must have transportation charges prepaid. Correspondence concerning all returned Equipment must be addressed to the appropriate Sensus office. Sensus reserves the right to deduct an adequate service charge to cover all inspection, testing and handling from any credit. 18.ASSIGNMENT. Customer may not assign, transfer or delegate this Agreement or any part of Customer’s rights or duties without prior written consent of Sensus. Any attempted assignment in violation of this section shall be null and void. 19.GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware, without regard to conflicts of law principles. Any and all disputes arising under, out of, or in relation to this Agreement or its performance (“Disputes”) shall first be resolved by the Parties attempting mediation in Delaware. If the Dispute is not resolved within sixty (60) days of the commencement of the mediation, it shall be litigated in the state or federal courts located in the State of Delaware. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES AGREE TO A BENCH TRIAL AND THAT THERE SHALL BE NO JURY IN ANY DISPUTES. 20.SEVERABILITY. In the event any provision of this Agreement is held to be void, unlawful or otherwise unenforceable, that provision will be severed from the remainder of the Agreement and replaced automatically by a provision containing terms as nearly like the void, unlawful, or unenforceable provision as possible; and the Agreement, as so modified, will continue to be in full force and effect. 21.NON-WAIVER. Failure or delay of Sensus to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof. 8601 Six Forks Road, Suite 700 Raleigh, NC 27615 1-800-638-3748 EXHIBIT B: Warranty and Implementation Training PUBLIC WORKS AGREEMENT (Between City of Bremerton and Ferguson Waterworks EXHIBIT B: Warranty and Implementation Training PUBLIC WORKS AGREEMENT (Between City of Bremerton and Ferguson Waterworks EXHIBIT B: Warranty and Implementation Training FEL - SILVERDALE WW #1604 11650 CLEARCREEK RD NW SILVERDALE, WA 98383-0000 Phone: 360-697-1510 Fax: 360-698-4729 Deliver To: From:Todd Mitchell Comments: HOW ARE WE DOING? WE WANT YOUR FEEDBACK! Scan the QR code or use the link below to complete a survey about your bids: https://survey.medallia.com/?bidsorder&fc=3156&on=57329 19:18:15 AUG 28 2019 FERGUSON WATERWORKS #3011 Price Quotation Phone: 360-697-1510 Fax: 360-698-4729 Bid No:B339907 Bid Date:08/26/19 Quoted By:TRM Cust Phone:360-473-5296 Terms:NET 10TH PROX Customer:CITY OF BREMERTON METER ACCOUNT 100 OYSTER BAY AVE N BREMERTON, WA 98312 Ship To:CITY OF BREMERTON METER ACCOUNT 100 OYSTER BAY AVE N BREMERTON, WA 98312 Cust PO#:Job Name: Page 1 of 2 Item Description Quantity Net Price UM Total SENSUS ANALYTICS SAAS YR1 ////////////////////////// SP-SSX40XXXXXXXXXX ANNUAL RNI SAAS FEE 1 22245.000 EA 22245.00 SP-S5396383700535D WTR ANALYTICS ST B 15-25K ANUAL FEE 1 17500.000 EA 17500.00 ------- SENSUS ANALYTICS SAAS YR2 ////////////////////////// SP-SSX40XXXXXXXXXX ANNUAL RNI SAAS FEE 1 22912.350 EA 22912.35 SP-S5396383700535D WTR ANALYTICS ST B 15-25K ANUAL FEE 1 17750.000 EA 17750.00 SP-SPMM400WAR M400 EXT BASE STATION WARRANTY 4 2060.000 EA 8240.00 ------- SENSUS ANALYTICS SAAS YR3 ////////////////////////// SP-SSX40XXXXXXXXXX ANNUAL RNI SAAS FEE 1 23599.720 EA 23599.72 SP-S5396383700535D WTR ANALYTICS ST B 15-25K ANUAL FEE 1 18565.750 EA 18565.75 SP-SPMM400WAR M400 EXT BASE STATION WARRANTY 4 2121.800 EA 8487.20 ------- SENSUS ANALYTICS SAAS YR4 ////////////////////////// SP-SSX40XXXXXXXXXX ANNUAL RNI SAAS FEE 1 24307.710 EA 24307.71 SP-S5396383700535D WTR ANALYTICS ST B 15-25K ANUAL FEE 1 19122.720 EA 19122.72 SP-SPMM400WAR M400 EXT BASE STATION WARRANTY 4 2185.450 EA 8741.80 ------- SENSUS ANALYTICS SAAS YR5 SP-SSX40XXXXXXXXXX ANNUAL RNI SAAS FEE 1 25036.940 EA 25036.94 SP-S5396383700535D WTR ANALYTICS ST B 15-25K ANUAL FEE 1 19696.400 EA 19696.40 SP-SPMM400WAR M400 EXT BASE STATION WARRANTY 4 2251.020 EA 9004.08 Net Total:$245209.67 Tax:$22068.86 Freight:$0.00 Total:$267278.53 Exhibit C: Pricing Page 2 of 2 19:18:15 AUG 28 2019 FERGUSON WATERWORKS #3011 Price Quotation Fax: 360-698-4729 Reference No:B339907 HOW ARE WE DOING? WE WANT YOUR FEEDBACK! Scan the QR code or use the link below to complete a survey about your bids: https://survey.medallia.com/?bidsorder&fc=3156&on=57329 Quoted prices are based upon receipt of the total quantity for immediate shipment (48 hours). SHIPMENTS BEYOND 48 HOURS SHALL BE AT THE PRICE IN EFFECT AT TIME OF SHIPMENT UNLESS NOTED OTHERWISE. QUOTES FOR PRODUCTS SHIPPED FOR RESALE CONTACT YOUR SALES REPRESENTATIVE IMMEDIATELY FOR ASSISTANCE WITH DBE/MBE/WBE/SMALL BUSINESS REQUIREMENTS. ARE NOT FIRM UNLESS NOTED OTHERWISE. https://www.ferguson.com/content/website-info/terms-of-sale LEAD LAW WARNING: It is illegal to install products that are not "lead free" in accordance with US Federal or other applicable law in potable water systems anticipated for human consumption. Products with *NP in the description are NOT lead free and can only be installed in non-potable applications. Buyer is solely responsible for product selection. Seller not responsible for delays, lack of product or increase of pricing due to causes beyond our control, and/or based upon Local, State and Federal laws governing type of products that can be sold or put into commerce. This Quote is offered contingent upon the Buyer's acceptance of Seller's terms and conditions, which are incorporated by reference and found either following this document, or on the web at Govt Buyers: All items are open market unless noted otherwise. Exhibit C: Pricing FEL - SILVERDALE WW #1604 11650 CLEARCREEK RD NW SILVERDALE, WA 98383-0000 Phone: 360-697-1510 Fax: 360-698-4729 Deliver To: From:Todd Mitchell Comments: HOW ARE WE DOING? WE WANT YOUR FEEDBACK! Scan the QR code or use the link below to complete a survey about your bids: https://survey.medallia.com/?bidsorder&fc=3156&on=57329 19:17:41 AUG 28 2019 FERGUSON WATERWORKS #3011 Price Quotation Phone: 360-697-1510 Fax: 360-698-4729 Bid No:B339906 Bid Date:08/26/19 Quoted By:TRM Cust Phone:360-473-5296 Terms:NET 10TH PROX Customer:CITY OF BREMERTON METER ACCOUNT 100 OYSTER BAY AVE N BREMERTON, WA 98312 Ship To:CITY OF BREMERTON METER ACCOUNT 100 OYSTER BAY AVE N BREMERTON, WA 98312 Cust PO#:Job Name: Page 1 of 1 Item Description Quantity Net Price UM Total SENSUS FLEXNET SYSTEM SET UP COST ////////////////////////// SP-SMSSURNISAAS1 RNI SAAS SETUP FEE 1 16500.000 EA 16500.00 SP-S5396383700521D ANLYTCS SYS SETUP WATER 15-25K RNI 1 10625.000 EA 10625.00 SP-SPSSASTANDARD SENSUS ANAYLYTICS BASIC INTEGRATION 1 3500.000 EA 3500.00 SP-SEDVAREUTRNG AMI FLEX NETCORE EDUCATION BY VAR 1 5000.000 EA 5000.00 ---- SET UP COST YR 1 35625.00 ------- Net Total:$35625.00 Tax:$3206.25 Freight:$0.00 Total:$38831.25 Quoted prices are based upon receipt of the total quantity for immediate shipment (48 hours). SHIPMENTS BEYOND 48 HOURS SHALL BE AT THE PRICE IN EFFECT AT TIME OF SHIPMENT UNLESS NOTED OTHERWISE. QUOTES FOR PRODUCTS SHIPPED FOR RESALE CONTACT YOUR SALES REPRESENTATIVE IMMEDIATELY FOR ASSISTANCE WITH DBE/MBE/WBE/SMALL BUSINESS REQUIREMENTS. ARE NOT FIRM UNLESS NOTED OTHERWISE. https://www.ferguson.com/content/website-info/terms-of-sale LEAD LAW WARNING: It is illegal to install products that are not "lead free" in accordance with US Federal or other applicable law in potable water systems anticipated for human consumption. Products with *NP in the description are NOT lead free and can only be installed in non-potable applications. Buyer is solely responsible for product selection. Seller not responsible for delays, lack of product or increase of pricing due to causes beyond our control, and/or based upon Local, State and Federal laws governing type of products that can be sold or put into commerce. This Quote is offered contingent upon the Buyer's acceptance of Seller's terms and conditions, which are incorporated by reference and found either following this document, or on the web at Govt Buyers: All items are open market unless noted otherwise. Exhibit C: Pricing FEL - SILVERDALE WW #1604 11650 CLEARCREEK RD NW SILVERDALE, WA 98383-0000 Phone: 360-697-1510 Fax: 360-698-4729 Deliver To: From:Todd Mitchell Comments: HOW ARE WE DOING? WE WANT YOUR FEEDBACK! Scan the QR code or use the link below to complete a survey about your bids: https://survey.medallia.com/?bidsorder&fc=3156&on=57329 14:53:20 SEP 06 2019 FERGUSON WATERWORKS #3011 Price Quotation Phone: 360-697-1510 Fax: 360-698-4729 Bid No:B339900 Bid Date:08/26/19 Quoted By:TRM Cust Phone:360-473-5296 Terms:NET 10TH PROX Customer:CITY OF BREMERTON METER ACCOUNT 100 OYSTER BAY AVE N BREMERTON, WA 98312 Ship To:CITY OF BREMERTON METER ACCOUNT 100 OYSTER BAY AVE N BREMERTON, WA 98312 Cust PO#:Job Name: Page 1 of 2 Item Description Quantity Net Price UM Total COLLECTORS & INSTALLATION ---- ////////////////////////// SP-SM400B SENSUS M400B BASESTATION UNIT 4 24500.000 EA 98000.00 ---- INSTALLATION & PROJECT MANAGEMENT ////////////////////////// SP-SM400INSTALL M400 BASE STATION INSTALLATION 1 26710.000 EA 26710.00 CHERYL STREET RESERVOIR #15 SP-SM400INSTALL M400 BASE STATION INSTALLATION 1 35000.000 EA 35000.00 RESERVOIR #20 SP-SM400INSTALL M400 BASE STATION INSTALLATION 1 24450.000 EA 24450.00 RESERVOIR #6 SP-SM400INSTALL M400 BASE STATION INSTALLATION 1 27075.000 EA 27075.00 ALEXANDER NORTH PROJECTMGTFEE PROJECT MGT FEE 1 5200.000 EA 5200.00 SP-MATERIALS&MOB MATERIALS & MOB COST 1 8000.000 EA 8000.00 YEAR ONE TOTAL 224435.00 ------- Net Total:$224435.00 Tax:$20199.15 Freight:$0.00 Total:$244634.15 Exhibit C: Pricing Page 2 of 2 14:53:20 SEP 06 2019 FERGUSON WATERWORKS #3011 Price Quotation Fax: 360-698-4729 Reference No:B339900 HOW ARE WE DOING? WE WANT YOUR FEEDBACK! Scan the QR code or use the link below to complete a survey about your bids: https://survey.medallia.com/?bidsorder&fc=3156&on=57329 Quoted prices are based upon receipt of the total quantity for immediate shipment (48 hours). SHIPMENTS BEYOND 48 HOURS SHALL BE AT THE PRICE IN EFFECT AT TIME OF SHIPMENT UNLESS NOTED OTHERWISE. QUOTES FOR PRODUCTS SHIPPED FOR RESALE CONTACT YOUR SALES REPRESENTATIVE IMMEDIATELY FOR ASSISTANCE WITH DBE/MBE/WBE/SMALL BUSINESS REQUIREMENTS. ARE NOT FIRM UNLESS NOTED OTHERWISE. https://www.ferguson.com/content/website-info/terms-of-sale LEAD LAW WARNING: It is illegal to install products that are not "lead free" in accordance with US Federal or other applicable law in potable water systems anticipated for human consumption. Products with *NP in the description are NOT lead free and can only be installed in non-potable applications. Buyer is solely responsible for product selection. Seller not responsible for delays, lack of product or increase of pricing due to causes beyond our control, and/or based upon Local, State and Federal laws governing type of products that can be sold or put into commerce. This Quote is offered contingent upon the Buyer's acceptance of Seller's terms and conditions, which are incorporated by reference and found either following this document, or on the web at Govt Buyers: All items are open market unless noted otherwise. Exhibit C: Pricing County Trade Job Classification Wage Holiday Overtime Notes Kitsap TelecommuJourney Level $51.07 7E 1E Kitsap Laborers Erosion Control Worker $41.09 7A 4V 8Y Kitsap Laborers Air, Gas Or Electric Vibrating Screed $41.09 7A 4V 8Y Kitsap Laborers Airtrac Drill Operator $42.30 7A 4V 8Y Kitsap Laborers Ballast Regular Machine $41.09 7A 4V 8Y Kitsap Laborers Batch Weighman $38.59 7A 4V 8Y Kitsap Laborers Brick Pavers $41.09 7A 4V 8Y Kitsap Laborers Bruch Cutter $41.09 7A 4V 8Y Kitsap Laborers Brush Hog Feeder $41.09 7A 4V 8Y Kitsap Laborers Burner $41.09 7A 4V 8Y Kitsap Laborers Caisson Worker $42.30 7A 4V 8Y Kitsap Laborers Carpenter Tender $41.09 7A 4V 8Y Kitsap Laborers Cement Dumper‐paving $41.79 7A 4V 8Y Kitsap Laborers Cement Finisher Tender $41.09 7A 4V 8Y Kitsap Laborers Change House Or Dry Shack $41.09 7A 4V 8Y Kitsap Laborers Chipping Gun (30 Lbs. And Over) $41.79 7A 4V 8Y Kitsap Laborers Chipping Gun (Under 30 Lbs.) $41.09 7A 4V 8Y Kitsap Laborers Choker Setter $41.09 7A 4V 8Y Kitsap Laborers Chuck Tender $41.09 7A 4V 8Y Kitsap Laborers Clary Power Spreader $41.79 7A 4V 8Y Kitsap Laborers Clean‐up Laborer $41.09 7A 4V 8Y Kitsap Laborers Concrete Dumper/Chute Operator $41.79 7A 4V 8Y Kitsap Laborers Concrete Form Stripper $41.09 7A 4V 8Y Kitsap Laborers Concrete Placement Crew $41.79 7A 4V 8Y Kitsap Laborers Concrete Saw Operator/Core Driller $41.79 7A 4V 8Y Kitsap Laborers Crusher Feeder $38.59 7A 4V 8Y Kitsap Laborers Curing Laborer $41.09 7A 4V 8Y Kitsap Laborers Demolition: Wrecking & Moving (Incl. Charred Material)$41.09 7A 4V 8Y Kitsap Laborers Ditch Digger $41.09 7A 4V 8Y Kitsap Laborers Diver $42.30 7A 4V 8Y Kitsap Laborers Drill Operator (Hydraulic, Diamond)$41.79 7A 4V 8Y Kitsap Laborers Dry Stack Walls $41.09 7A 4V 8Y Kitsap Laborers Dump Person $41.09 7A 4V 8Y Kitsap Laborers Epoxy Technician $41.09 7A 4V 8Y Kitsap Laborers Faller & Bucker Chain Saw $41.79 7A 4V 8Y Kitsap Laborers Fine Graders $41.09 7A 4V 8Y Kitsap Laborers Firewatch $38.59 7A 4V 8Y Kitsap Laborers Form Setter $41.09 7A 4V 8Y Kitsap Laborers Gabian Basket Building $41.09 7A 4V 8Y Kitsap Laborers Gaurdrail Erector $41.09 7A 4V 8Y Kitsap Laborers General Laborer $41.09 7A 4V 8Y Kitsap Laborers Grade Checker & Transit Person $42.30 7A 4V 8Y Kitsap Laborers Grinders $41.09 7A 4V 8Y Kitsap Laborers Grout Machine Tender $41.09 7A 4V 8Y Kitsap Laborers Groutmen (Pressure) Including Post Tension Beams $41.79 7A 4V 8Y Kitsap Laborers Hazardous Waste Worker (Level A)$42.30 7A 4V 8Y Kitsap Laborers Hazardous Waste Worker (Level B)$41.79 7A 4V 8Y Kitsap Laborers Hazardous Waste Worker (Level C)$41.09 7A 4V 8Y Kitsap Laborers High Scaler $42.30 7A 4V 8Y Kitsap Laborers Jackhammer $41.79 7A 4V 8Y Kitsap Laborers Laserbeam Operator $41.79 7A 4V 8Y Kitsap Laborers Maintenance Person $41.09 7A 4V 8Y Kitsap Laborers Manhole Builder‐Mudman $41.79 7A 4V 8Y Kitsap Laborers Material Yard Person $41.09 7A 4V 8Y Kitsap Laborers Motorman‐Dinky Locomotive $41.79 7A 4V 8Y Kitsap Laborers Nozzleman (Concrete Pump, Green Cutter When Using Combination Of High Pressure Air & Water O $41.79 7A 4V 8Y Kitsap Laborers Pavement Breaker $41.79 7A 4V 8Y Kitsap Laborers Pilot Car $38.59 7A 4V 8Y Kitsap Laborers Pipe Later Lead $42.30 7A 4V 8Y Kitsap Laborers Pipe Layer/Tailor $41.79 7A 4V 8Y Kitsap Laborers Pipe Pot Tender $41.79 7A 4V 8Y Kitsap Laborers Pipe Reliner $41.79 7A 4V 8Y Kitsap Laborers Pipe Wrapper $41.79 7A 4V 8Y Kitsap Laborers Pot Tender $41.09 7A 4V 8Y Kitsap Laborers Powderman $42.30 7A 4V 8Y Kitsap Laborers Powderman's Helper $41.09 7A 4V 8Y Kitsap Laborers Power Jacks $41.79 7A 4V 8Y Kitsap Laborers Railroad Spike Puller ‐ Power $41.79 7A 4V 8Y Kitsap Laborers Raker ‐ Asphalt $42.30 7A 4V 8Y Kitsap Laborers Re‐timberman $42.30 7A 4V 8Y Kitsap Laborers Remote Equipment Operator $41.79 7A 4V 8Y Kitsap Laborers Rigger/Signal Person $41.79 7A 4V 8Y Kitsap Laborers Rip Rap Person $41.09 7A 4V 8Y Kitsap Laborers Rivet Buster $41.79 7A 4V 8Y Kitsap Laborers Rodder $41.79 7A 4V 8Y Kitsap Laborers Scaffold Erector $41.09 7A 4V 8Y Kitsap Laborers Scale Person $41.09 7A 4V 8Y Kitsap Laborers Sloper (Over 20)"$41.79 7A 4V 8Y Kitsap Laborers Sloper Sprayer $41.09 7A 4V 8Y Kitsap Laborers Spreader (Concrete)$41.79 7A 4V 8Y Exhibit C: Pricing County Trade Job Classification Wage Holiday Overtime Notes Kitsap Laborers Stake Hopper $41.09 7A 4V 8Y Kitsap Laborers Stock Piler $41.09 7A 4V 8Y Kitsap Laborers Tamper & Similar Electric, Air & Gas Operated Tools $41.79 7A 4V 8Y Kitsap Laborers Tamper (Multiple & Self‐propelled)$41.79 7A 4V 8Y Kitsap Laborers Timber Person ‐ Sewer (Lagger, Shorer & Cribber)$41.79 7A 4V 8Y Kitsap Laborers Toolroom Person (at Jobsite)$41.09 7A 4V 8Y Kitsap Laborers Topper $41.09 7A 4V 8Y Kitsap Laborers Track Laborer $41.09 7A 4V 8Y Kitsap Laborers Track Liner (Power)$41.79 7A 4V 8Y Kitsap Laborers Traffic Control Laborer $40.90 7A 4V 9C Kitsap Laborers Traffic Control Supervisor $40.90 7A 4V 9C Kitsap Laborers Truck Spotter $41.09 7A 4V 8Y Kitsap Laborers Tugger Operator $41.79 7A 4V 8Y Kitsap Laborers Tunnel Work‐Guage and Lock Tender $42.40 7A 4V 8Y Kitsap Laborers Tunnel Work‐Guage and Lock Tender $42.40 7A 4V 8Y Kitsap Laborers Vibrator $41.79 7A 4V 8Y Kitsap Laborers Vinyl Seamer $41.09 7A 4V 8Y Kitsap Laborers Watchmen $35.20 7A 4V 8Y Kitsap Laborers Welder $41.79 7A 4V 8Y Kitsap Laborers Well Point Laborer $41.79 7A 4V 8Y Kitsap Laborers Window Washer/Cleaner $35.20 7A 4V 8Y Exhibit C: Pricing Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement Exhibit D: SAAS Agreement MEMORANDUM Date: November 25, 2019 To: Procurement File From: Thomas Knuckey, PW&U Director Subject: Sole Source Determination – Contract with Ferguson Waterworks ------------------------------------------------------------------------------------------------------------ In accordance with Bremerton Municipal Code 2.76.090, Sole Source Purchases, the purpose of this memorandum is to document the necessity for sole source procurement methodology for the public works agreement with Ferguson Waterworks to implement the Sensus FlexNet System. The City has been purchasing Sensus meter transmitter units (MXUs) for over seven years; at this time approximately 13,000 of the 15,000 MXUs have been installed. This installation has been made to implement FlexNet. The Sensus FlexNet System is proprietary, and Sensus Metering Systems is the only company that provides the hardware and software to interface with the City’s water metering installation. Ferguson Waterworks is the regional supplier and only authorized distributor of the FlexNet system. In order to implement the FlexNet System it is necessary for the City to execute a Public Works Agreement with Ferguson Waterworks. Therefore, it is my determination that pursuant to BMC 2.76.010 and 2.76.090 it is in the City’s best interest to negotiate directly with Ferguson Waterworks for sole source procurement of the Sensus Flexnet System. Flexnet is an automated meter reading system with remote meter shutoff capability. The system can also automate streetlight management In 2012, the City began installing Sensus “Smart point” Meter Transmitter Units (MXUs) to facilitate Flexnet. Implementation is 87% complete (13K of 15K installed, current investment is $2M) Remaining work to activate the system is installation of antennas, data collectors, software system integration and training which is included in this contract. Additional work outside of the contract is the completion of MXU replacement. Meter (Bottom), and MXU (Top) have 20-year lives, including battery life Current Meter Reading Operations (bi-monthly): •A meter reader drives most City Streets during each billing cycle. The drive takes 9-hrs/billing cycle or 18- hrs/month. Readings are uploaded to two separate receivers in the truck. •Un-read accounts are identified; the meter reader returns and manually reads. •Data is uploaded to the Utility Billing System, then Utility Billing staff and the Meter Reader review to ensure data exists for all accounts •The meter reader returns and repairs all un-read meters. •Utility Billing runs a query to identify anomalies, reviews past data, and dispatches customer response to field investigate to when issues are identified Flexnet Meter Reading Operations: •Meters are outfitted with “Smart Point” Meter Transmitter Units (MXUs) which automatically read and record each hour. Failures and system anomalies are identified and reported to Utility Billing immediately •Utility Billing can check flow data real-time and investigate some issues from the office. In many cases Utility Billing can contact the Owner or Property Manager directly when issues are identified •Meter read frequency and data capture increases from 6-times per year to 24-times per day •Early Leak detection means customers avoid high bills and minimize flooding. City policy is to write off 50% of excess once every 2-years •Automated/early identification of meter malfunction based on change in usage (unusual readings) •Early identification of issues reduces water loss •Out of cycle data query at a keystroke; home sale (day-of-sale), off-cycle landlord requests, customer complaint response, eliminate Webcheck (savings of $50K/yr) •Better understand water loss by area of the system allowing for improved system management and more informed capital improvements •Capability to incorporate continuous pressure monitoring, temperature and chlorine residual at key locations through the water system •Hourly flow data = enhanced modeling and better system management •Current meter read takes 1-FTE two days/month. Flexnet is automated, or off-cycle by keystroke •Improved efficiency is estimated to save field staff at least ½-FTE/yr. Recovered time allows for improved maintenance of key infrastructure •Ability to add remote shutoff capability for chronic non-payment accounts = efficiency + safety •Monthly billing would require 1-new meter crew FTE, plus an equipped truck ($50K-truck, $60K- equipment); this is not required with Flexnet. Monthly bills would likely reduce delinquencies 432 “Door Knockers” for 1 (of 4) billing cycles. This resulted in 85-shut offs Contract with Ferguson: •Installation of Collection Equipment (Antennas and Data Collectors) at 4 locations ($244,634) •Sensus set-up, system integration and training ($38,831) •Annual Software as a Service (SAAS) and Water analytics fees ($43,322-first year, $55K+/-each year thereafter) Additional cost not included –$258K to expedite “Smart point” MXU conversion AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Public Hearing on Ordinance No. _______ amending Title 20 of the Bremerton Municipal Code to add a Permitting Process and Regulations for Temporary Encampments Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: DCD Presenter: Allison Satter Phone: (360) 473-5845 SUMMARY: The action before Council is to conduct a Public Hearing and adopt an Ordinance amending Bremerton Municipal Code (BMC) Title 20 related to Temporary Encampments. The amendments include developing a permitting process and regulations for the placement of temporary encampments. The State has already authorized religious organizations to host temporary encampments pursuant to RCW 35.21.915. The legislation grants broad authority to religious organizations to provide shelter or housing to homeless persons on property that these organizations own or control. This law allows local jurisdictions to adopt regulations in order to establish conditions necessary to protect public health and safety, and this ordinance is written to achieve that for the Bremerton community. ATTACHMENTS: Staff Memo o Memo Attachment I: 2019 Kitsap County Point in Time Count Overview o Memo Attachment II: RCW 35.21.915 o Memo Attachment III: Temporary Encampment Siting Example o Memo Attachment IV: Planning Commission Meeting Minutes: November 18, 2019 (Draft) Proposed Ordinance Updated o Exhibit A: Planning Commission Findings and Conclusion for Temporary Encampment FISCAL IMPACTS (Include Budgeted Amount): None. STUDY SESSION AGENDA: ☐ Limited Presentation ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☒ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No.______ to amend Title 20 of the Bremerton Municipal Code to add a new section to add permitting authority and regulations the placement of temporary encampments. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A22 Updated To: City Council From: Allison Satter, Sr. Planner Date: December 2, 2019 Re: Zoning Code Amendment – New Section: Temporary Encampment Permit EXECUTIVE SUMMARY The Planning Commission has recommended that the City Council review and approve the proposed Ordinance to make changes to the Bremerton Municipal Code (BMC) to add a permitting process and regulations for the placement of temporary encampments. Washington State Law already allows temporary encampments to be operated by religious organizations and these can occur today without any local process. Because of the increasing population of people experiencing homelessness we believe that it may be desirable to establish a temporary encampment in ou r community soon. Due to this, it is important to establish appropriate regulations to protect the health , and safety of our community and all its residences. ZONING CODE PROPOSED TEXT AMENDMENT The City has received the preliminary data for the 2019 Kitsap County Point in Time Count Overview (see Memo Attachment I), and the data shows an increasing number of people who are unsheltered in our community. The data indicates 58% of the County’s unsheltered population are in Bremerton – which means that we have at least 101 people that need shelter each night, which has increased since 2018. There are many groups in our community, churches, non-profits, and others, that are seeking ways to help those that are experiencing homelessness. Over the last decade, temporary homeless encampments, sometimes called tent cities, have become an often-used mechanism for providing shelter for homeless individuals. The City of Bremerton does not have any regulations tha t address temporary encampments. It is vitally important that the City establish regulations to protect the health of the individuals in temporary encampments and the public health, safety and security of our neighborhoods. The state has already authorized religious organizations to host temporary encampments (see excerpt of RCW 35.21.915 in Memo Attachment II). The DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM legislation grants broad authority to religious organizations to provide shelter or housing to homeless persons on property that these organization s own or control. This law allows local jurisdictions to adopt regulations in order to establish conditions necessary to protect public health and safety, and the proposed regulations are written to achieve that for the Bremerton community. Because of the number of unsheltered people that are in our community, we believe it is important to broaden the scope of who can apply to operate a temporary encampment to include more than religious institutions, but to also allow other non-profit agencies and groups to operate these facilities. The new code proposes to expand the scope of the intent of the state law to allow others to operate temporary encampments that conform to regulatory standards. In summary, the proposed code establishes the following requirements to protect health, safety, and security of the Bremerton community for the placement of temporary encampments: • Temporary encampments are allowed in all zoning districts • Site must be at least one (1) acre, and the area dedicated to the encampment must contain 150 square feet per resident (the code does not cap the number of residents). • 20’ minimum setback, 40’ setback from residential uses • Activities must be screened/fenced • Requires security management • Outreach to neighbors • Performance standards must be met for health and safety (access to clean water and toilet facilities) • Permit application process that will take a maximum of 30 days • Temporary encampment can last up to 92 days at one location and can’t return to that site for 24 months. • Only one encampment is allowed in the City limits at one time The City’s new regulations are consistent with the RCW, in that Bremerton is permitted to establish regulations that protect the health and safety of the citizens of the community. City staff has done significant research into what other jurisdictions in Washington state have adopted for their temporary encampment rules; the proposed code amendments implement standards for the Bremerton community that are appropriate for us and are also consistent with what other cities in Washington have already adopted . The City’s new code for the placement of temporary encampment identifies a permitting process for the placement of temporary encampments. As the City is committed to permitting temporary encampment within 30-days through an administrative decision, the proposed permit process requires significant up-front work by the applicant(s) prior to applying with the City, including performing public outreach and a community meeting. The placement of a temporary encampment in the City of Bremerton can be summarized as a six-step regulatory process: 1. Find a site (siting criteria is illustrated in Memo Attachment III). 2. Perform Preapplication work to identify and mitigate impacts. • Part of this pre-application work is to have a meeting/outreach with Police, Fire, Health District and nearby School District and childcare services to help develop the management plan for the encampment including identify potential impacts and propose mitigations to ensure the health and safety of the encampment residence and the public. 3. Conduct a Neighborhood Meeting. 4. Revise the proposal and ensure all items are addressed and appropriate mitigations and measures are proposed. 5. Apply for a permit (30-day review) 6. After encampment duration is complete, site must be restored to its original condition. MINORITY REPORT FROM THE PLANNING COMMISSION Though the Planning Commission voted to recommended approval of the temporary encampments, there were two opposing votes on the proposed zoning code amendments. The following summarizes the Commissioner’s concerns: • One Commissioner wanted to extend the duration of time that the temporary encampment was allowed to be sited at a particular location and requested additional criteria for buffers from schools. o Duration extension: The proposed code states that a temporary encampment may be located at any one site for 92 days for a 24-month period. The Commissioner requested that the 24-month period be extended to be 36-months to have less impacts on a neighborhood. There was not support for the Commission to make this modification due to concern that the code would be more restrictive then other jurisdictions. o Buffer from Schools. They requested that additional siting criteria be placed on temporary encampments for the protection of students (such as a certain distance around schools where a temporary encampment shall not be located). Staff explained that likely many of these encampments would locate on church properties, and church properties are typically located near school locations; to add this siting criteria could be too restrictive, and staff has not found any other jurisdictions that establishes setbacks to schools. In addition, the proposed code requires that the applicant meet with the school district (and any childcare services) in the nearby area to discuss potential impacts from the encampment and potential mitigations that could be in place to ensure the safety of the encampment residences and the students. There was not support for the Commission to make this modification. • Another Commissioner expressed concerns that City staff would not be able to manage the permitting and impacts of temporary encampments and voted in opposition due to this. Defining Sheltered vs. Unsheltered For the purposes of this survey, information is collected on sheltered (in emergency shelter or transitional housing) vs. unsheltered homelessness. In this year’s count, 174 people said they were unsheltered. The majority of those who were unsheltered indicated they lived outside in places not meant for human habitation. Characteristics When asked about various personal characteristics, the most common response from survey participants was that they experienced challenges related to permanent disability, followed by mental illness, chronic health conditions, and chronic substance use. Kitsap County 74% Other WA County 18% Out of State 8% 2012 2013 2014 2015 2016 2017 2018 2019 Transitional Housing 147 72 155 152 192 183 155 155 Emergency Shelter 118 104 66 84 72 122 88 101 Winter Shelter 47 65 57 Unsheltered 60 64 77 106 181 165 149 174 Sheltered Total 265 176 221 236 264 352 308 313 Total Count 325 240 298 342 445 517 457 487 0 100 200 300 400 500 600 2019 Kitsap County Point in Time Count Overview – Preliminary Data The “Point in Time” count is an annual survey that gathers information about people experiencing homelessness during a 24-hour period at the end of January. This survey provides critical information regarding the scope and nature of homelessness in our community and can impact funding for homeless housing and services. Because participating in the survey is voluntary, and relies on volunteers finding people experiencing homelessness, it is considered to be an under count of the actual number of homeless. Participants are surveyed in a number of locations throughout the county including the Project Connect Resource Fairs[1], food banks/meal sites, in encampments, and on the streets. Last Place of Residence Surveys also collected information about the last city of permanent residence, and 73% of households provided this data. 85 (74%) of those households previously had stable housing in Kitsap County. Increasing Numbers of Unsheltered Individuals The 2019 count of 174 unsheltered individuals indicates a 17% increase from 2018 and a 5% increase from the average of 165 individuals over the prior 3 years. Since the opening of the Winter Shelter, the number of sheltered individuals has increased 19% from 264 in January 2016 to 313 in January 2019. Causes of Homelessness When asked about the specific cause (or causes) of their homelessness, the most common response was housing issues (eviction or loss of housing), economic issues (loss of job or unable to work), followed by health issues (including mental health). Current City Increased efforts were made to expand the count in 2019 throughout previously under-counted areas in Kitsap County. Unsheltered participants were asked to provide their current cities of residence, and 85 households (73%) provided this data. [1] In 2017 the Project Connect was hosted at the Salvation Army in Bremerton. In 2018 and 2019 the Project Connect was additionally offered at the Village Green Community Center in Kingston and at the Givens Center in Port Orchard. 25% 34% 11% 36% 37% 13% 0%10%20%30%40% Family Conflict Health Issues/Mental Health Discharged from Systems Job Loss/Unable to Work Eviction/Loss of Housing Substance Use Bremerton 58% Port Orchard 20% Bainbridge Island 6% Kingston 2%Poulsbo 9% Silverdale 5% 12% 28% 53% 7% 48% 30% 0%10%20%30%40%50%60% Domestic Violence Chronic Substance Abuse Permanent Physical Disability Developmental Disability Mental Health Chronic Health Condition Out of Doors (street, tent, etc.) 17% Vehicle 12% RV/Boat Lacking Amenities 5%Abandoned Building 1% Emergency Shelter 32% Transitional Housing 32% Total Sheltered 64% (313) Total Unsheltered 36% (174) Memo Attachment I Memo Attachment II RCW 35.21.915 Temporary encampments for the homeless—Hosting by religious organizations authorized—Prohibitions on local actions. (1) A religious organization may host temporary encampments for the homeless on property owned or controlled by the religious organization whether within buildings located on the property or elsewhere on the property outside of buildings. (2) A city or town may not enact an ordinance or regulation or take any other action that: (a) Imposes conditions other than those necessary to protect public health and safety and that do not substantially burden the decisions or actions of a religious organization regarding the location of housing or shelter for homeless persons on property owned by the religious organization; (b) Requires a religious organization to obtain insurance pertaining to the liability of a municipality with respect to homeless persons housed on property owned by a religious organization or otherwise requires the religious organization to indemnify the municipality against such liability; or (c) Imposes permit fees in excess of the actual costs associated with the review and approval of the required permit applications. (3) For the purposes of this section, "religious organization" means the federally protected practice of a recognized religious assembly, school, or institution that owns or controls real property. (4) An appointed or elected public official, public employee, or public agency as defined in RCW 4.24.470 is immune from civil liability for (a) damages arising from the permitting decisions for a temporary encampment for the homeless as provided in this section and (b) any conduct or unlawful activity that may occur as a result of the temporary encampment for the homeless as provided in this section. 0BHow does the siting criteria and setbacks fit on a lot? 1BCan this code meet the need for the unsheltered individuals* in Bremerton? 220’ 198’ Bremerton Street 40’ 40’ 20’ 40’ Perimeter Setback Usable area = 19,320 sq ft Could shelter up to ~129 residents Example: This example demonstrates how the City’s new temporary encampment regulations would be applied to a theoretical one-acre vacant site (which measures 198’ by 220’) that is surrounded by residential uses and a street. • Perimeter setback (shown in gray above). A 20’ setback is required from all exterior property lines, plus an addition 20’ from any residential uses. The area taken up by setbacks is 24,240 square feet. • Remaining Usable Area for an encampment (shown in white above) is 19,320 square feet. This area would be reduced if there were existing buildings and associated parking lots. • Encampments are required to have 150 square feet for each resident. 19,320 square feet can accommodate 129 residents (19,320/150) • Bremerton’s Unsheltered Homeless population* = 101 people This exercise demonstrates that the City’s new regulations can accommodate Bremerton’s unsheltered population. *As identified in the Kitsap County Point in Time Count (2019): https://www.kitsapgov.com/hs/HOUSINGBLOCK/2019%20Kitsap%20County%20PIT%20Overview%20-%20Preliminary-rev1.pdf Temporary Encampment Siting Example Potential Site: 1-acre parcel outlined in red ? Memo Attachment III Next Door Duplex Next Door Apartment Next Door Single- family home DRAFT Subject to January 27, 2020 Approval CITY OF BREMERTON PLANNING COMMISSION MINUTES OF REGULAR MEETING November 18, 2019 CALL TO ORDER: Chair Tift called the regular meeting of the Bremerton Planning Commission to order at 5:30 p.m. ROLL CALL Commissioners Present Staff Present Chair Tift Vice Chair Wofford Commissioner Mosiman Commissioner Jones Commissioner Pedersen Commissioners Excused Commissioner Davis Quorum Certified Andrea Spencer, Director, Department of Community Development Allison Satter, Senior Planner, Department of Community Development ELECTION OF OFFICERS FOR 2020 CHAIR TIFT MOVED TO APPOINT COMMISSIONER WOFFORD TO SERVE AS CHAIR OF THE COMMISSION IN 2020. COMMISSIONER JONES SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. COMMISSIONER WOFFORD MOVED TO APPOINT COMMISSIONER TIFT TO SERVE AS VICE CHAIR OF THE COMMISSION IN 2020. COMMISSIONER PEDERSEN SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. APPROVAL OF AGENDA VICE CHAIR WOFFORD MOVED TO APPROVE THE AGENDA AS PRESENTED. COMMISSIONER MOSIMAN SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. APPROVAL OF MINUTES VICE CHAIR WOFFORD MOVED TO APPROVE THE MINUTES OF OCTOBER 21, 2019 AS PRESENTED. COMMISSIONER JONES SECONDED THE MOTION, WHICH CARRIED 4-0, WITH COMMISSIONER MOSIMAN ABSTAINING. Memo Attachment IV DRAFT Bremerton Planning Commission Minutes November 18, 2019 ~ Page 2 of 7 PUBLIC MEETING Call to the Public (public comments on any item not on the agenda) Chair Tift asked if there were any comments from citizens. Seeing none, he closed the public portion of the meeting. Public Hearing: Zoning Code Amendment to Establish Regulations for Temporary Encampments Ms. Satter reviewed the rules and procedures for the public hearing and Chair Tift opened the hearing. Ms. Satter explained that, currently, State law allows temporary encampments to be established by religious organizations, which means the City cannot prohibit temporary encampments. However, it can adopt regulations that are specific to Bremerton in order to protect the health, safety, security and general welfare of the encampment residents and the general public. She referred to Revised Code of Washington (RCW) 35.21.915 (Attachment B of the Staff Report), which authorizes temporary encampments to be placed throughout the State. It says they must be temporary, but there is no definition of what “temporary” means. It is up to individual jurisdictions to regulate the use. By State code, temporary encampments must be sponsored by a religious organization. Ms. Satter recalled that when preparing the draft provisions, staff looked at how other jurisdictions regulate temporary encampments. All of the proposed regulations have been used successfully in other jurisdictions. She advised that Option 1 would be to do nothing, which means the City would utilize the State code to regulate temporary encampments. They could be located anywhere in the City, as long as they are sponsored by religious organizations. Option 2 would be for the City to adopt a permitting process and regulations that are applicable to Bremerton. The purpose of the hearing is to discuss proposed code language as per Option 2. As proposed, temporary encampments: • Would be allowed citywide. • Would be limited to only one at a time. Allowing temporary encampments in more than one location at the same time could end up taxing the City’s emergency services and the ability to respond in a crisis situation. • Would be limited to 92 days (1/4 year) at one location during any 24-month period. That means that 8 locations would be needed for the temporary encampments to rotate around the City during a 2-year period. • Must be at least 1 acre in size and provide at least 150 square feet (typical parking stall) for each of the occupants. The idea is that there must be sufficient space for residential tents, restrooms, security and food tents, access and circulation, etc. • Would require a 20-foot perimeter setback and an additional 20-foot setback (for a total 40 feet) when adjacent to residential uses. • Must be screened and/or fenced. The Fire Department would also have to ensure there is adequate ingress and egress and that emergency services can access the site at all times. Ms. Satter shared an example of how the proposed regulations could be applied to a vacant 1-acre site. With a 40-foot buffer on three sides (adjacent to residential uses), and a 20-foot buffer along the street, the useable area would be 19,320 square feet. About 129 residents could be accommodated. She acknowledged that this is an ideal situation that doesn’t consider buildings, parking lots on the site, etc. Ms. Satter explained that, currently, no permit is required for temporary encampments, and staff is proposing that a Type I Permit be required. This is the least burdensome permit type (typical of a Building Permit) and does not require a public hearing. Type I Permits are administrative decisions and are issued within 30 days. She acknowledged that a 30-day process does not allow enough time to do public outreach. As such, significant upfront planning would be required by the host, including a neighborhood meeting and meetings with the Police, Fire, Health District and nearby schools and childcare services to discuss and mitigate potential impacts prior to permit submittal. Hosts must provide a plan to help address potential impacts before a permit will be issued. At a minimum, the plan must address the following: • Meet all health regulations. • Provide adequate access for emergency services. Memo Attachment IV DRAFT Bremerton Planning Commission Minutes November 18, 2019 ~ Page 3 of 7 • Allow Fire Marshal and Building Code inspections throughout the encampment’s duration. • Provide adequate potable water and toilet facilities. • Provide regular trash patrol. • Manage the noise on the site. • Manage the light and glare from the site. • Provide security via a Security Management Plan. • Develop and implement a Code of Conduct. (i.e. no guns, no open flames, no violence, etc.) Ms. Satter said the idea of the proposed language is to make the requirements clear to applicants (hosts) so that permits can be quickly approved. She pointed out that the proposed language would not limit temporary encampments to specific zoning districts; they would be allowed citywide. It also doesn’t limit the number of occupants. However, a minimum 1-acre parcel would be required to ensure enough area to accommodate Bremerton’s unsheltered population, which has been identified in Attachment A as 101 people. The proposal would allow other groups, in addition to religious organizations, to host a temporary encampment. Ms. Satter reviewed the few changes that were made to the draft proposal after the Commission Packets were sent out: 1. The original proposal had a 90-day limit, and the updated proposal increased the limit to 92 days. This change was based on a public comment, noting that 90-days is not a quarter of a year. A 90-day limit would require nine locations in a 2-year period rather than the desired 8 locations. 2. A citation to the RCW related to indemnification was added for clarity. As per State Code, the City would not be held responsible if something were to happen at a temporary encampment at a religious facility. Therefore, religious organizations would not be required to provide the additional documentation. Ms. Satter reported that three written comments have been received to date. One person requested a longer duration of time for each encampment, up to 6 months. The person also noted that, at the least, the duration should be expanded from 90 to 92 days, which would at least be a quarter year. Another person strongly opposed encampments and requested a law against vagrants. However, the latter request is beyond the scope of the current proposal. A third person strongly opposed “tent cities.” Regarding the last two comments, she reminded the Commission that the City cannot prohibit encampments. The City can either rely on the State regulations or adopt regulations that are more specific to the City of Bremerton. Ms. Satter concluded that the Planning Commission must consider all public comments, deliberate and make a recommendation to the City Council relative to the proposed amendments. Staff’s hope is to present the proposed amendment to the City Council on December 18th for a public hearing and final decision. Chair Tift invited public comment. Roy Runyan, Bremerton, expressed his belief that a minimal screen should be required to provide privacy to the individuals in the camp and to screen the camp from the surrounding area/neighborhood. He also commented that the Code of Conduct requirements are too vague. He noted that many of the occupants in the temporary encampments suffer from drug and alcohol addiction and they should have access to treatment. He recommended that hosts be required to coordinate with social service agencies and organizations to provide these services. He noted that, as proposed, temporary encampments would be allowed in any 1-acre parcel in any zone in the City. He suggested that the use be excluded within a certain radius of schools. Chair Tift pointed out that the proposed regulations do include a screening requirement. Mike Simpson Snyder, Bremerton, suggested reducing the 1-acre requirement to ½ acre and then adding a maximum size limit. He voiced concern that they could end up with a very large temporary encampment, which is not appropriate for Bremerton. If the City requires 150 square feet for each occupant, limiting the total size of the encampment to 2.5 to 5 acres would be well advised. He asked if the screening requirement is spelled out in the proposed code language or if the requirement would vary per agreements with each individual organization. Chair Tift closed the public hearing. Memo Attachment IV DRAFT Bremerton Planning Commission Minutes November 18, 2019 ~ Page 4 of 7 Vice Chair Wofford commented that “temporary” is an arbitrary word. He asked if there is a standard in any other State or City regulation that defines “temporary.” Ms. Satter answered that the City’s zoning code removed all references to “temporary” based on the idea that there is nothing more permanent than “temporary.” The International Building Code identifies “temporary” as 180 days. The proposed language would establish what “temporary” means as far as temporary encampments are concerned. Vice Chair Wofford observed that, as proposed, a temporary encampment could be located anywhere in the City and would not be limited to just the host’s property. He asked if this would include City-owned properties. Ms. Satter responded that State Code requires that temporary encampments be sponsored by religious organizations, but a religious organization could partner with another property owner, including the City. The proposed code would allow other groups, besides religious organizations, to host a temporary encampment. Director Spencer added that property-owner consent would be required. For example, the City would have to agree before a temporary encampment could be located on a city-owned property. Commissioner Jones asked who would be responsible for screening the residents of an encampment. Ms. Satter said the proposed language does not outline a specific screening process. It would be up to the host to decide the types of occupants that are allowed. Commissioner Jones asked if the language could include a screening requirement. Ms. Satter responded that if concerns are expressed at a neighborhood meeting, a host may choose to place limits on the occupants, but that decision would be made by the host and not the City. Commissioner Jones asked if there are currently encampments that are sponsored by religious organizations, and Ms. Satter answered none that are being regulated. However, there are some informal encampments in the City. Commissioner Jones requested clarification of the screening requirement. Ms. Satter referred to BMC 20.46.090(c)(4), which states that “All activities, shelters, toilets, cooking facilities, etc. of the temporary encampment shall be screened from view of the adjacent properties and the public right-of-way to the maximum extent feasible. This can be accomplished by a minimum 6-foot-high sight-obscuring fence, existing dense vegetation, an existing topographic difference, distance from exterior property lines, or other means.” Commissioner Jones asked who would be responsible for making sure there is adequate security. Ms. Satter said this will be addressed when a host meets with the Police Department prior to submitting an application. The occupancy load may be limited by the host’s ability to provide adequate security. Commissioner Pedersen said he lived near a temporary encampment in Central Seattle a few years ago. He recognized the need for temporary encampments, particularly those that are well-regulated, but he wouldn’t want to have the use located next to his home once every two years. He suggested that it might be better to have a duration limit of 92 days during a 36-month period, but he acknowledged it would require 12 rather than 8 viable sites. Ms. Satter said staff’s preliminary analysis indicates there are numerous viable sites in Bremerton where encampments could be located. The 92-day duration in a 24-month period was taken from another City. She hasn’t seen any codes from other jurisdictions that have a 36-month duration, but that doesn’t mean it can’t be done. Commissioner Pedersen acknowledged that it takes a lot of work to complete all of the permit requirements for a temporary encampment, but for those who live right next the encampments, extending the time period to 36 months might make a big difference. Ms. Satter pointed out that the City of Seattle only allows three encampments at any given time, and many other cities only allow one. Commissioner Pedersen suggested it would be appropriate to require some type of additional setback from childcare facilities and schools. Ms. Satter pointed out that the proposed regulations would require hosts to notify all childcare facilities and schools in the within the vicinity. The facility operators, as well as the parents of the children being served, would be invited to attend the neighborhood meeting to comment and specifically request additional setbacks and other mitigation. Director Spencer added that during staff’s research no other regulations were found by other jurisdictions that required additional setbacks from schools or childcare facilities. Commissioner Mosiman referred to RCW 35.21.915, and asked if the City has any codes or regulations to govern the “within building” part of the provision. For example, could a religious organization open up its basement for a homeless encampment. Director Spencer answered yes, provided the building meets all of the Building Code requirements for a residential use, such as sprinklers and access. Memo Attachment IV DRAFT Bremerton Planning Commission Minutes November 18, 2019 ~ Page 5 of 7 Commissioner Mosiman observed that the words “applicant” and “property owner” are used throughout the proposed language. In BMC 20.46.090(b)(1) and (2), “applicant” means “the temporary encampment host, sponsor and manager,” and “property owner” means “the owner of the property or legal representative of the real property proposed for use as a temporary encampment.” However, in the overhead summary, staff used the word “groups.” He asked for clarification about these terms. He also asked if the definition for “applicant” implies that three individuals (host, sponsor, manager) would be required. Ms. Satter answered no. One person or organization could serve as the host, sponsor and manager. Commissioner Mosiman suggested that the definition should be revised to make it clear that the applicant could be an individual. As currently proposed, it implies that at least three people must serve as applicant. Director Spencer specifically asked for direction from the Commission as to whether or not the use should be limited to religious and non-profit organizations or opened for anyone to be the applicant. Commissioner Mosiman said that, as currently proposed, an applicant could be either a group or an individual. It is confusing that the words “host,” “manager,” and “sponsor” all mean the same thing. He suggested it would be simpler to say that the applicant is the group or individual hosting the temporary encampment. He observed that none of the conversation to this point would imply that the use should be limited to religious and non-profit organizations. Ms. Satter suggested the definition for “applicant” should be changed to mean “a group or individual that hosts, sponsors and/or manages a temporary encampment.” The Commissioners agreed that would clarify the definition. Commissioner Jones asked if City staff would inspect the encampments to ensure they are meeting the Code of Conduct and all City regulations. If so, how often. Ms. Satter responded that, as proposed, the host would be required to allow the Fire Marshal and/or Building Official to have access to the site for inspections at any time. Hosts would also be required to coordinate with the Police Department and Health District. Vice Chair Wofford asked where the code requires the sponsor to be a religious organization. He also asked how “religious organization” is defined. Ms. Satter referred to RCW 35.21.915 (Attachment B), which states that “a religious organization may host temporary encampments for the homeless on property owned or controlled by the religious organization whether within buildings located on the property or elsewhere on the property outside of buildings.” The proposed code would not limit the use to only religious organizations. Vice Chair Wofford summarized that, as proposed, anyone could sponsor a temporary encampment. Chair Tift asked the Commissioners to comment on the idea of changing the duration from 92 days every 24 months to 92 days every 36 months. He also asked them to comment on the buffers proposed and if they should be increased when adjacent to childcare facilities and schools. Commissioner Pedersen asked what recourse a school or childcare facility would have if a temporary encampment is located adjacent. Could a greater setback be imposed at that time? Could a permit for a temporary encampment be denied if a school or childcare facility objects? Director Spencer pointed out that the applicant would be required to meet with the school and/or childcare facility and respond to their concerns with some mitigating measures. Ms. Satter added that an impact mitigation plan would be required as part of the permitting process. Director Spencer pointed out that temporary encampments are outright permitted by State Law, so the City cannot outright deny an application. However, it can add conditions as part of permit approval. Again, she said the proposed regulations are modeled after other jurisdictions and have been proven effective. They haven’t found any regulations in other jurisdictions that required additional setbacks from schools or childcare facilities. Given the size of Bremerton and the proposed duration of 92 days during a 24-month period, Commissioner Mosiman questioned the likelihood of finding that many parcels within a 2-year time period. He said he can sympathize with property owners where temporary encampments are located repeatedly, yet the unsheltered people need to be taken care of. He voiced his opinion that the proposed regulations strike a good balance. He voiced concern against making the regulations so onerous that they end up violating the RCW, itself. The City may be not be able to survive a challenge if there are insufficient areas in the City for temporary encampments to locate. Again, he said he supports the proposed 92-day rotation every two years. Director Spencer also expressed her belief that the proposed language strikes the right balance of making sure there are enough areas for temporary encampments to locate while still protecting the public’s health, safety and welfare. Director Spencer observed that, as soon as a temporary encampment is permitted and in place, the next host will have to start the public outreach and application process again. The host groups and/or individuals will have to be constantly working. Memo Attachment IV DRAFT Bremerton Planning Commission Minutes November 18, 2019 ~ Page 6 of 7 Commissioner Mosiman asked if any of the proposed regulations have been in operation in cities of similar size long enough to see how well the rotation works and what the groups are doing to make encampments happen. Ms. Satter answered that the City of Bremerton is actually a little behind other jurisdictions. Many have had code provisions in place for about five years. The City hasn’t been impacted by the RCW provision, so no city-specific regulations have been adopted to date. A lot of the proposed language came from the City of Bothell, but she doesn’t know if they have had enough experience to know if the regulations work effectively. You tend to hear more about the problems associated with temporary encampments in Seattle, and that is why additional provisions are needed. Based on what she learned from other jurisdictions, she agreed that if the requirements are too stringent, they may have to revise the code later if challenged. Rather than waiting for groups to establish temporary encampments, Director Spencer said some cities are setting up their own camps to deal with the homeless issue. Chair Tift observed that the 1-acre requirement would fit the City’s current need, as it would house up to 129 residents, and the City currently has about 101 homeless individuals. If the number of homeless individuals increases above 130, the parcel size and/or the setback requirements could be adjusted later. Other elements of the provision could also be updated if deemed necessary in the future. Ms. Satter pointed out that Kitsap County, Poulsbo and Bainbridge Island all have code provisions for temporary encampments, and Bremerton and Port Orchard are the only jurisdictions in the county that do not. Absent a code, religious organizations can already host temporary encampments and there would be no specific City requirements. Chair Tift asked who would be responsible for closing a temporary encampment. Ms. Satter referred to BMC 20.46.090(e) and (i). Section e talks about restoration of the site. After 92 days, the site must be restored, as near as possible, to its original condition. For example, the applicant would be required to replant areas where vegetation was removed or destroyed, remove gravel and replace with grass, etc. Section i outlines the circumstances and process for closing down a temporary encampment that is found in violation of the permit conditions. Upon revocation of the permit, all residents would have to vacate the premises within 72 hours. Chair Tift asked if retail sales, such as a food concession, would be allowed within a temporary encampment. He also asked if a host could charge the occupants rent. Ms. Satter answered that the proposed language would not prohibit either from occurring. It would be left up to the host. COMMISSIONER MOSIMAN MOVED TO RECOMMEND THE CITY COUNCIL ADOPT THE ZONING CODE AMENDMENTS TO BMC TITLE 20 TO ADD A PERMITTING PROCESS AND REGULATIONS FOR TEMPORARY ENCAMPMENTS AS SHOWN IN ATTACHMENT C WITH THE TEXT EDITS AS PRESENTED AT THE HEARING ON NOVEMBER 18, 2019 AND THE DEFINITION CHANGE TO “APPLICANT,” THE STAFF REPORT AND THE FINDINGS AND CONCLUSIONS PRESENTED IN ATTACHMENT E. VICE CHAIR WOFFORD SECONDED THE MOTION. Ms. Satter advised that staff would prepare a minority report to indicate there was some concern about requiring more setback when adjacent to schools and childcare facilities. There was also a suggestion that the duration be increased to a maximum of 92 days in any 36-month period. THE MOTION CARRIED 3-2, WITH COMMISSIONERS MOSIMAN, WOFFORD AND TIFT VOTING IN FAVOR AND COMMISSIONERS PEDERSEN AND JONES VOTING IN OPPOSITION. Commissioner Pedersen commented that he supports the idea of adopting local regulations for temporary encampments and would likely have supported the motion if the proposed language had addressed his concerns about additional setbacks when adjacent to schools and childcare facilities and if the duration had been increased from 92 days every 24-month period to every 36-month period. Commissioner Jones said she doesn’t feel comfortable that the City would have the ability to regulate the temporary encampments to the extent needed. She was concerned that the use could get out of control. While the concept looks good on paper, she is not convinced it would actually turn out that way. Director Spencer reminded her that the use is already allowed by State Law without any City oversight. Commissioner Jones acknowledged that the use is already allowed, but she did not believe there would be sufficient follow-through to make sure the new codes would be enforced. Memo Attachment IV DRAFT Bremerton Planning Commission Minutes November 18, 2019 ~ Page 7 of 7 BUSINESS MEETING Chair Report Chair Tift noted that this would be his last meeting to serve as Chair of the Commission. He thanked the Commissioners for the support they provided over the past two years. The Commission has done some good things that have made the City a better place to live and work. Director Report Director Spencer congratulated the new 2020 officers and thanked Chair Tift for his great leadership over the past two years. Director Spencer reported that permitting activity remains high and that walk-in customers at the counter do not show any signs of slowing down. Old Business: Bylaw Review and Comments Chair Tift reminded the Commissioners to share their comments regarding the bylaws with Ms. Satter or Director Spencer. Director Spencer advised that she hasn’t received any comments to date. Director Spencer announced that the Commission’s December meeting was cancelled. Instead, the Commissioners will meet for a “Holiday Cheer.” The next meeting will be January 27, 2019, a special meeting, given that the third Monday of the month is a holiday (Martin Luther King Day). Ms. Satter also noted that the February meeting would be on February 24th rather than February 17th due to the holiday (President’s Day). New Business There was no new business. ADJOURNMENT The meeting was adjourned at 6:35 p.m. Respectively Submitted by: ______________________________ ______________________________ Andrea L Spencer, AICP Rick Tift, Chair Executive Secretary Planning Commission Memo Attachment IV 1 Zoning Code Updates – Temporary Encampments ORDINANCE NO. ________ AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending the Bremerton Municipal Code to add a permitting process and regulations for temporary encampments, and amending Ordinance No 5381 to add to Rate Table C a permit fee for temporary encampment applications. WHEREAS, there is a history of homelessness in Bremerton and a demonstrated need for additional facilities to address temporary housing; and WHEREAS, the 2019 Kitsap County Point in Time Count identifies 174 unsheltered individuals in the Kitsap County, and 58% of those individuals are Bremerton residences, for a total of 101 unsheltered people in Bremerton; and WHEREAS, the City’s focus on solutions for people who are homeless should be a roof-overhead and services to connect individuals with a pathway toward long-term housing, however, the current capacity of our housing and homeless services continuum cannot meet the needs of all those who are homeless and, as an alternative, temporary encampments can offer a sense of safety and community while seeking longer term housing options; WHEREAS, RCW 35.21.915 expressly authorizes religious organizations to host temporary encampments for homeless persons on property owned or controlled by religious organizations, and likewise authorizes cities to establish permit or other regulatory conditions necessary to protect public health and safety, provided, however, that they do not substantially burden the decisions or actions of religious organizations providing housing or shelter for homeless persons on property owned or controlled by religious organizations; and WHEREAS, the City and its elected and appointed officials are committed to protecting the health, safety and well-being of its citizens; and WHEREAS, the City does not seek to limit the Temporary Encampment to particular zoning districts in the city, and therefore allows them to be established in all areas as long as the proposed site is at least one (1) acre in size because this will lessen the health, safety and welfare impacts to existing uses located adjacent to Temporary Encampments; and WHEREAS, no more than one Temporary Encampment shall be permitted in the City at any one time due to the limitations on City resources and services that are necessary to support temporary homeless encampments; the City Council further finds that these limitations on resources and services would cause public health, safety and welfare impacts if more than one Temporary Encampment was authorized at a time ; and WHEREAS, the City Council finds that a site may only host a Temporary Encampment once every twenty-four (24) months in order to lessen and disburse throughout the 2 Zoning Code Updates – Temporary Encampments City the health, safety and welfare impacts to existing uses located adjacent to Temporary Encampment sites; and WHEREAS, the City Council finds that limiting the permit duration to ninety two (92) days for Temporary Encampments does not measurably increase the health, safety and welfare impacts to adjacent neighborhoods and City services. WHEREAS, the City desires to enact this ordinance in order to set forth the requirements for the issuance of a temporary encampment use permit to an applicant wishing to host a homeless encampment; and WHEREAS, the City, by this ordinance, desires to establish a fee of $175.00 for the review and approval of a permit application for the placement of a temporary encampment. Pursuant to RCW 35.21.915, the City shall not impose permit fees in excess of the actual costs associated with the review and approval of the required permit applications for the placement of temporary encampments. The City Council finds that a fee of $175.00 is not in excess of actual cost associated with the review and approval of the required permit application for the placement of a temporary encampment; and WHEREAS, the City of Bremerton has established a procedure for amending the Zoning Code in Title 20.18.020(d) of the Bremerton Municipal Code (“BMC”), which requires amendments to the Zoning Code to be both consistent with the goals and policies of the Comprehensive Plan and to be consistent with other applicable rules and regulations; and WHEREAS, these amendments are consistent with the City’s Comprehensive Plan, County-wide Planning Policies, the State Growth Management Act, and other applicable regulations and ordinances; and WHEREAS, on November 5, 2019, the proposed Zoning Code amendments related to temporary encampments were circulated to the State Agencies for the requisite review and comment period; and WHEREAS, on November 5, 2019, a State Environmental Policy Act (“SEPA”) Determination of Nonsignificance (“DNS”) was issued for the proposed action related to the temporary encampment and no appeals were filed; and WHEREAS, on November 12, 2019, the Department of Commerce received the proposed amendments related to temporary encampments pursuant to RCW 36.70A.106 for the State’s procedural requirements for agency review; and WHEREAS, on November 8, 2019, the public was notified by a legal advertisement in the Kitsap Sun of the opportunity to make comment and participate in the public hearing held by the Planning Commission; and 3 Zoning Code Updates – Temporary Encampments WHEREAS, on November 18, 2019, the Planning Commission conducted a public hearing on the Zoning Code amendments and formulated a recommendation to forward the amendments for City Council consideration; and WHEREAS, on December 6, 2019, the public was notified by a legal advertisement in the Kitsap Sun of the opportunity to make comment and participate in the public hearing by the City Council; and WHEREAS, on December 18, 2019, the City Council conducted a public hearing and considered all testimony prior to their decision; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findings and Recitals. The findings and recitals set forth above are hereby adopted and incorporated herein by this reference. SECTION 2. Planning Commission Findings. The finding and conclusions adopted by the Planning Commission attached hereto as Exhibit A related to temporary encampments, are adopted and incorporated as set forth herein in full. SECTION 3. Municipal Code Amended. The Bremerton Municipal Code is hereby amended to add a new Section 20.46.090 entitled “Temporary Encampment Permit” which reads as follows: 20.46.090 TEMPORARY ENCAMPMENT PERMIT. (a) Intent. The City of Bremerton desires to establish reasonable development standards for sponsors of outdoor temporary encampments. These facilities do not represent a permanent solution to homelessness but rather can provide vitally needed shelter and a first step to more permanent forms of housing. This section provides an equitable process, with reasonable conditions and an associated permit, to meet the need for temporary shelter for local homeless persons while ensuring public health, safety and welfare. (b) Definitions. (1) “Applicant” shall mean a group or individual(s) that host, sponsor and/or manages a temporary encampment. (2) “Property Owner” shall mean the owner of the property or legal representative of the real property proposed for use as a temporary encampment. (3) “Shelter(s)” shall mean tents, sheds, huts, cabins, tiny homes, trailers or other enclosures which are not permanently attached to the ground, may be easily erected and dismantled, and are intended for temporary occupancy. (4) “Temporary encampment(s)” shall mean an area of a parcel(s) that hosts shelters, security, and other facilities, for housing the homeless for humanitarian purposes. Temporary encampment facilities that are established for this use shall be easily erected and dismantled and shall only be temporary. (5) “Temporary” shall mean, for the purposes of this section, 92 days. 4 Zoning Code Updates – Temporary Encampments (c) Siting Criteria. A temporary encampment may be placed on a property in the City that complies with the following: (1) Location. Temporary encampments can be permitted in all zoning districts. (2) Site Size and Encampment Size Requirements. (i) Site Size. The minimum site size shall be one (1) acre. The one (1) acre site can include one or more contiguous parcels but in no case may the parcels be separated by a right-of-way (streets, alleyways, etc.), critical area, or other means. All property owners shall jointly apply for the temporary encampment permit and shall be equally responsible for compliance with all conditions of the permit. (ii) Encampment Size. The area of the parcel(s) dedicated to the encampment must equal 150 square feet or more for each resident (not including the required setback area). This size requirement is to ensure that there is sufficient land area to support the activities of the temporary encampment without overcrowding of occupants, degradation of vegetation, eroding soils or otherwise overtaxing the land. (3) Perimeter Setback. A temporary encampment shall be set back no less than twenty (20) feet from all exterior boundary lines, with an additional twenty (20) feet setback when adjacent to residential uses (for a total of 40’ setback when adjacent to a residential use). This setback is intended to ensure all activities of the temporary encampment are set back from adjacent properties a sufficient distance so as not to impinge upon or otherwise unduly influence activities on said adjacent properties. The required exterior setback may be reduced or waived if the owners of such adjacent property consent in writing to support a reduction or waiver of such setback. (4) Screening of Activities. All activities (shelters, toilets, cooking facilities, etc.) of the temporary encampment shall be obscured from view from adjacent properties and public right-of-way to the maximum extent feasible. This can be accomplished by a minimum six-foot-high sight-obscuring temporary fence, existing dense vegetation, an existing topographic difference, distance from exterior property lines, or other means. (5) Critical Areas. A temporary encampment may not be located within critical areas or their associated buffers. All proposed temporary encampments shall comply with the city’s critical areas regulations as set forth in Chapter 20.14 BMC and the Shoreline Master Program. (6) Limit of encampments. No more than one (1) temporary encampment shall be permitted and operating at any one time in the City. (d) Preapplication Work. Prior to application submittal, the applicant and property owners must address community and neighborhood impacts from the proposed temporary encampment by developing the following: (1) Impact Mitigation Plan. The applicant shall identify potential adverse effects of the proposed temporary encampment on neighboring properties and the community and shall develop measures to mitigate such effects. The applicant shall develop a temporary encampment impact mitigation plan. The plan shall contain a narrative and drawing(s) that describe the measures the applicant will use to mitigate the effects of the temporary encampment. At a minimum, the plan shall specifically describe the measures that will be 5 Zoning Code Updates – Temporary Encampments implemented to satisfy the approval criteria provided in this section. The impact mitigation plan shall be updated to address the comments and suggestions received at the required neighborhood meeting and review as identified in sections (3) and (4) of this subsection (discussions with police, fire, school, childcare, and health district). The implementation and enforcement of the plan shall be a condition of permit approval. (2) Security Management Plan. The applicant shall develop a plan demonstrating security measures, site specific or otherwise, necessary to ensure the safety of the residents of the temporary encampment and the public. At a minimum, the plan shall specify the following: (i) The person or entity responsible for providing security; (ii) The type of security to be used, e.g., private security firm, volunteers, or other means; and (iii) Recommendations and/or requirements provided by the Police Department. (3) Discussions with Police, Schools, and Child Care Services. A representative of the applicant or property owner shall meet and confer with the following entities regarding the proposal and any proposed security measures for the temporary encampment: (1) the Bremerton Police Department; (2) the administration of any public or private preschool, elementary, middle, junior high, or high school if within 500 feet of the boundaries of the proposed site; and (3) the operators of any properly licensed child care service(s) within 500 feet of the boundaries of the proposed site. (4) Discussions with Kitsap Public Health District. A representative of the applicant or property owner shall meet and confer with the Kitsap Public Health District regarding the proposal and the proposed plan for providing adequate drinking water, solid waste management, and the waste management (trash removal) plan for the temporary encampment. (5) Parking Plan. The applicant shall develop a parking plan. The parking plan shall address the following: (i) Adequate parking for the temporary encampment shall be provided so as not to reduce parking utilized by existing site uses; (ii) The temporary encampment shall not displace the site’s parking lot in such a way that the site no longer meets the minimum or required parking of the principal use as required by code or previous approvals; (iii) An alternative parking plan may be approved by the Director if the parking plan can demonstrate how the existing use on the site and the encampment can provide off-site parking sufficient to have no off-site impact to the surrounding neighborhoods. This alternative parking plan will be not valid after the expiration of the temporary encampment; (iv) Parking vehicles shall only be allowed in existing approved parking areas and shall not be located in unapproved areas such as the grass or field; and (v) A Temporary Encampment Permit cannot permit new site development such as paving, gravel laydown, and structure installation. This work requires a separate process through the approval of a Site Development Permit as outlined in BMC 20.58.090. 6 Zoning Code Updates – Temporary Encampments (e) Neighborhood Meeting. The applicant shall conduct a neighborhood meeting to inform nearby residents and the public about the proposed temporary encampment prior to submittal of an application. The following process shall be used: (1) Notification. The applicant shall provide notice of the neighborhood meeting by mail, first class and postage prepaid, to all owners of property within 500 feet of the lot(s) containing the proposed temporary encampment, provided such area shall be expanded as necessary to send mailed notices to at least 20 different property owners. The notice of the neighborhood meeting shall be mailed at least 15 days prior to the neighborhood meeting. (2) Neighborhood Meeting. At the neighborhood meeting, a representative of the applicant or property owner shall present in writing and verbally the proposed temporary encampment location, timing, site plan, code of conduct, impact mitigation plan, accommodations concerns, and a security management plan. The presentation shall also include copies of all previously submitted comments received on the proposed temporary encampment, including comments from the Bremerton Police Department, school(s), and child care services. Copies of the agenda and the other specified comments and materials shall be provided by the applicant at the meeting. The meeting shall be conducted on the proposed Temporary encampment site whenever feasible; this meeting shall be held in a location that is ADA (Americans with Disability) accessible. (f) Performance Criteria. Temporary encampments shall be operated in such a manner as to ensure the health and safety of occupants of the encampment and surrounding properties. Accordingly, all temporary encampments shall comply with the list below. Demonstration of compliance with this section is a requirement of the temporary encampment permit. Any proposed mitigation or actions from this section shall be identified in the Impact Mitigation Plan. (1) Health Regulations. All applicable city, county and state regulations pertaining to public health shall be met. (2) Fire Safety. Inspections of the site by the city for fire safety purposes may be conducted at any time and without prior notice. Adequate access, as determined by the Fire Marshal, shall be maintained within and around the temporary encampment at all times to ensure that emergency vehicles can ingress/egress the site. (3) Building Code Inspections. Inspections of the temporary encampment by the city to ensure the public health and safety may be conducted at any time and without prior notice. (4) Drinking Water and Solid Waste. An adequate supply of potable water and adequate toilet facilities shall be available on-site at all times. All city, county and state regulations pertaining to drinking water connections and solid waste disposal shall be met. (5) Trash. Adequate facilities for dealing with trash shall be provided on-site. A regular trash patrol or other method of regular maintenance in the immediate vicinity of the site shall be provided. (6) Noise. Any temporary encampment shall comply with city noise regulations as set forth in Chapter 6.32 BMC. (7) Light and Glare. Any temporary encampment shall comply with city light and glare regulations as set forth in Chapter 20.44.110 BMC. 7 Zoning Code Updates – Temporary Encampments (8) Security. Any temporary encampment shall provide all required legal access to public areas of the site by the city of Bremerton Police Department and any other relevant law enforcement agency at all times. (9) Codes of Conduct. The applicant shall enforce a written code of conduct which mitigates impacts to neighbors and the community. Said code shall be incorporated into the conditions of approval. The code shall contain the following as a minimum: (i) Prohibit possession or use of firearms and/or illegal drugs; (ii) No violence; (iii) No open flames; (iv) No loitering in the surrounding neighborhood; and (v) Quiet hours (at a minimum between the hours of 10:00 p.m. and 7:00 a.m.). (g) Process and Permit. Notwithstanding any other provision in the Bremerton Municipal Code, the following procedures shall apply in accepting, noticing, reviewing, and otherwise processing temporary encampment permit applications. A City issued temporary encampment permit is required prior to the commencement of such a use. (1) A temporary encampment permit is a Type I action and shall be processed accordingly, as set forth in Chapter 20.02 BMC, Project Permits. The prospective temporary encampment applicant and property owner(s) shall jointly apply for the temporary encampment permit and shall be equally responsible for compliance with all conditions of the permit. A complete application for a temporary encampment permit shall be submitted a minimum of thirty (30) days prior to the anticipated start of the encampment. (2) The following documentation is required for a complete application: (i) Application; (ii) The date that the temporary encampments will commence; (iii) The maximum duration requested of said temporary encampment; (iv) The number of residents to be accommodated on the site; (v) The host location; (vi) The names of the managing agency and host, with contact information; (vii) Impact Mitigation Plan (viii) Security Management Plan (ix) Code of Conduct; (x) Documentation of Actions taken prior to application submittal. This document shall include a summary of the Neighborhood Meeting, including who was notified of the meeting (mailing list and map of mailed property owners), who attended the meeting, summary of the items discussed at the neighborhood meeting, and summary of discussion and any request for mitigations of the temporary encampment from the Health District, Police, Fire, School District(s) and Childcare services; (xi) Vicinity Map including buildings and uses on properties surrounding the proposed temporary encampment, and the distance the proposed accommodations would be set back from the property lines; and (xii) Site plan showing at least the following: 8 Zoning Code Updates – Temporary Encampments (A) Existing buildings and parking and vehicle maneuvering area. (B) Location of where encampment will be located including overall dimensions; (C) Location of on-site parking for primary use of the site and number of vehicles associated with the encampment (parking plan); and (D) Access routes for emergency vehicles (xiii) Encampment layout showing at least the following: (A) Layout of all encampment facilities, including, but not limited to, food and security facilities, arrangement of shelters, etc.; (B) Method and location of potable water; (C) Method and location of waste receptacles; (D) Method and location of required screening; and (E) Location of required sanitary stations including toilets and hand washing facility; and (xiv) Application Fee. (4) Decisions may be appealed. Appeals of a Type I decision shall be heard and decided by the hearing examiner in accordance with the procedures set forth in BMC 20.02.140. (5) Emergencies. The Director may waive these requirements of this section when a natural or manmade disaster necessitates the immediate establishment of temporary encampments. (h) Duration and Site Restoration. (1) Duration. A proposed temporary encampment may be allowed at one property for up to 92 days, either consecutively or cumulatively, during any 24-month period, except that where the ninetieth day falls on Friday through Sunday, an additional two days shall be allowed to dismantle and remove the accommodation over the immediately following weekend. The applicant and/or property owner shall store, out-of-sight from adjacent properties, the residents’ personal belongings that are left onsite after the dismantling of the site. (2) Restoration of Site. Upon cessation of the temporary encampment, the site shall be restored, as near as possible, to its original condition. The applicant shall re-plant areas in which vegetation had been removed or destroyed. (i) Revocation and Indemnification. (1) Failure to Comply. If a temporary encampment permit has been issued, and the Director determines that the applicant has violated any condition of that permit, the Director shall issue a notice of violation and require compliance in accordance with the procedures set forth in Chapter 1.04 BMC, Code Enforcement. The City may revoke a temporary encampment permit for any violation of this section or the temporary encampment permit where such a violation is: (i) Not cured following notice from the City and an opportunity to cure such violations. (ii) Intentionally or knowingly committed by the applicant or property owner; or 9 Zoning Code Updates – Temporary Encampments (iii) So severe as to substantially threaten public health and safety. (2) Upon revocation of the temporary encampment permit, all residents of the encampment must vacate the premises within seventy-two hours of revocation. The applicant or property owner shall be required to remove all physical evidence of the use and to restore or replant any required vegetation within one week of revocation. The applicant and/or property owner shall store, out-of-sight from adjacent properties, the residents’ personal belongings that are left onsite after the seventy-two hours. (3) Indemnification. The applicant, except for religious facilities per RCW 35.21.915, shall defend, indemnify, and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits of any nature, including attorney fees, due to the acts or omissions of the applicant in connection with the operation of the temporary encampment. (4) Liability Insurance. Except for religious facilities, the applicant shall procure and maintain in full force, through the duration of the temporary encampment, comprehensive general liability insurance with a minimum coverage of $1,000,000 per occurrence/aggregate for personal injury and property damage. SECTION 4. Ordinance Amended. Ordinance No. 5381 establishing the City of Bremerton’s 2020 Rates and Fees is hereby amended by amending Rate Table C entitled “Department of Community Development” to add “Temporary Encampment Permit” with an associated fee of “$175.00” to subsection (2)(e) entitled “Zoning Ordinance”. SECTION 5. Corrections. The City Clerk and codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener, clerical, typographical, and spelling errors, references, ordinance numbering, section/subsection numbers and any references thereto. SECTION 6. Severability. If any one or more sections, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 7. 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 ____________________, 2019. _________________________________ ERIC YOUNGER, Council President 10 Zoning Code Updates – Temporary Encampments Approved this ________ day of ________________________, 2019. _________________________________ GREG WHEELER, Mayor ATTEST: APPROVED AS TO FORM: __________________________________ ________________________________ ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the ________ day of ______________________, 2019. EFFECTIVE the ________ day of ______________________, 2019. ORDINANCE NO. ____________ R:\Legal\Legal\Ordinances\Community Development\2019.12.18 Ord for Temp Ecamp - Final.docx Exhibit A Exhibit A AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Public Hearing on Ordinance No. 5389 adopting Comprehensive Plan Amendments; and Ordinance No. 5390 to adopt Zoning Code Amendments Study Session Date: December 11, 2019 COUNCIL MEETING Date: December 18, 2019 Department: DCD Presenter: Allison Satter Phone: (360) 473-5845 SUMMARY: The action before the Council is to conduct a public hearing for the 2019 Comprehensive Plan Amendment Docket and associated zoning code amendments. To maintain consistency through the Comprehensive Plan and Zoning Code, this action includes two ordinances as follows: 1. Ordinance No. 5389 is to amend the Comprehensive Plan text and land use maps; and 2. Ordinance No. 5390 is to amend the Zoning Code text and maps to maintain consistency with the Comprehensive Plan. ATTACHMENTS: 1. Staff Memo with attachments: Memo Attachment I: Modifications of Multifamily Residential Land Use Designation and Land Use Map Change for Anderson Cove Memo Attachment II: Modification of land use map on Werner Road Memo Attachment III: Minutes of the Planning Commission Workshops and Public Hearing (April 22, June 17 and September 16, 2019) 2. Proposed Ordinance No. 5389 with the following Exhibits: Exhibit A: Findings and Conclusions from the Planning Commission Exhibit B: Comprehensive Plan Land Use Element replacement page for Multifamily Residential modifications Exhibit C: New official Land Use Maps (#1, #2, #3, and #4) with amendments (name change and two modified areas in Maps #2 and #4) reflected in those maps Exhibit D: Close-up of Land Use district showing change from Multifamily Residential to Medium Density Residential Exhibit E: Close-up of Land Use district showing change from Industrial to Low Density Residential 3. Proposed Ordinance No. 5390 with the following Exhibit: Exhibit A: New official Zoning Maps (#1, #2, #3, and #4) with amendments (name change and two modified areas in Maps #2 and #4) reflected in those maps FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: ☐ No Presentation ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☒ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. 5389 adopting amendments to the Comprehensive Plan Text and Official Land Use Map. Move to pass Ordinance No. 5390 adopting Zoning Code text and Zoning map amendments to Bremerton Municipal Code Title 20, Zoning Code to be consistent with the Comprehensive Plan amendments. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/07/15 A23 To: City Council From: Allison Satter, Sr. Planner Date: December 2, 2019 Re: Comprehensive Plan Amendment & Associated Zoning Code Changes Staff and the Planning Commission are pleased to present the proposed 2019 Comprehensive Plan Amendment Docket for Council consideration. State and City statutes (including the Bremerton Municipal Code (BMC)) allow the Comprehensive Plan to be amended a maximum of once per year. The 2019 Docket includes three amendments as follows: Amendment #1.1: Modify the Multifamily Residential District. More fully described in Memo Attachment I. Summary of the revisions include: a. Rename the Multifamily Residential District to High Density Residential b. Increase the permissible maximum density. c. Revise BMC 20.79 entitled Multifamily Residential. Amendment #1.2: Change the Land Use designation for 25 acres in An derson Cove from Multifamily Residential to Medium Density Residential. More fully described in Memo Attachment I. Revisions include revising the Comprehensive Plan Land Use Map #2 and Zoning Code Map #2 for the area between 15th, 19th, Naval, and Rainier Avenue. Amendment #2: Public Proposal: Change the Land Use designation on Werner from Industrial to Low Density Residential. More fully described in Memo Attachment II. Revisions include revising the Comprehensive Plan Land Use Map #4 and Zoning Code Maps #4. There are two ordinances attached to this agenda bill, because the actions that the City is taking to amend the Comprehensive Plan, they must also be reflected as changes to the City’s zoning code. State law requires that there be consistency between these two documents. Because of the interrelatedness of the issue, the public hearing is combined, but the City Council has to take action to adopt two separate ordinances to amend the two different documents. The ordinance amending the City’s Comprehensive Plan must be passed prior to the ordinance amending the Zoning Code. DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM Memo Attachment I for Ord No. 5389 and 5390 Amendment #1: Modify the Multifamily Residential and to change the Land Use Map for Anderson Cove (including Amendment #1.1 and #1.2) This amendment is to consider revising the Multifamily Residential (MR) description within the Comprehensive Plan’s Land Use Element, specifically page LU-39 (as seen as in Exhibit B of the proposed ordinance). The amendment is to increase the density within the MR district to 40 dwelling units per acre and rename the district to High Density Residential. The City has three residential-only districts: Low Density Residential (LDR), Medium Density Residential (MDR), and Multifamily Residential (MR). For consistency and to reduce confusion, the amendment is proposed to rename the zone from Multifamily Residential (MR) to High Density Residential (HDR) district. In addition to the name change request, the amendment allows an additional modification to the increase the density within the MR district. In 2018 the City updated the Comprehensive Plan for the density in the MDR (Ordinance 5363). Part of the 2018’s amendments was to increase the MDR’s density from 10 dwelling units per acre to 18 dwelling unit per acre. With MDR becoming 18 dwelling units per acre, the MR current maximum permissible density of 20 dwelling units per acre should be increased. There are five areas within the City that are currently in the MR districts (maps and aerials images of the districts are shown in the April 2019’s Planning Commission packet: https://www.bremertonwa.gov/AgendaCenter/Planning-Commission-4). The current amendments do not propose to create any more MR districts at this time. The amendment is to set the maximum density at 40 dwelling units per acre and the following section outlines the reasons for this change: • Comparative to Existing Development. In 2016, the area along Pine Road has been designated as MR as this area consists primarily of multifamily housing. The following are existing developments within the City that are currently located in the MR district for comparison (with densities that range from 17 to 42 dwelling units per acre). Though some of the multifamily housing density shown here are senior housing developments which is a little different than typical multifamily housing, these examples help illustrate what type of development this amendment would be anticipating for the MR district if the increase in density is accepted. (Pictures on following page) Memo Attachment I for Ord No. 5389 and 5390 Screenshot of area along Pine Rd of properties that are part of the Multifamily Residential district. The Willows Retirement Living (shown in red dashed line) is 31 units per acre; with 140 units on 4.47 acres. The Cottage Assisted Living (shown in yellow dashed line) is 42 units per acre; with 100 units on 2.39 acres. The Cascade of Bremerton Ashley Gardens (shown in green dashed line) is 17 units per acre; with 40 units on 2.39 acres. Tamarack Apartments on Almira Drive, shown in red dashed lines above, is also located in the MR district. This property has 83 units on 2.35 acres therefore a density of 35 units per acre. 31 units/acre 42 units/acre 17 units/acre 35 units/acre Memo Attachment I for Ord No. 5389 and 5390 • More consistent with the industry standard for multifamily density. Municipal Research and Services Center (MRSC) has provided an overview on density including providing illustrations and the industry standards. The MRSC article “Visualizing Compatible Density,” which was released on April 2017, can be located here: http://mrsc.org/Home/Stay-Informed/MRSC-Insight/April- 2017/Visualizing-Compatible-Density.aspx. When evaluating the City’s anticipated density and comparing it with the details of this article, 34 to 36 dwelling units seemed appropriate for the City of Bremerton (and consistent with existing development), however to spur any redevelopment of these sites 40 dwelling units per acre may be more appropriate and therefore this is the density that we are analyzing at this early stage of the docket process. • Impacts due to existing development. In 2016, the City increased the areas that were designated MR, and this designation was applied in areas of the city that were already developed primarily with multifamily units. Many of the MR districts have few undeveloped properties. For future multifamily projects to happen, multiple properties will need to be acquired and likely buildings will need to be removed prior to the placement of future development. This makes locating any new multifamily development within these areas more difficult and expensive than finding a large undeveloped site. Therefore, the amendment proposal is to increase the density of the MRSC’s recommendation of 34 or 36 units/acre to 40 dwelling units per acre. This will help offset the additional cost of redevelopment. In conjunction with the Comprehensive Plan amendment, changes are proposed for the associated zoning code regulations. The zoning regulations can contain safeguards to ensure compatibility with the neighboring use. Within the Comprehensive Plan and Zoning Code, additional development provisions for the MR district and zone will be adjusted to ensure compatible development with the neighboring uses and districts. The development regulations include limitations to the height, lot coverage, and setbacks, and contain design standards for multifamily buildings. The specific zoning code changes can be seen in the associated ordinance for the Zoning Code amendments. These amendments for Zoning Code changes to the Multiple Residential (MR) zone (Bremerton Municipal Code Chapter 20.79) are to be consistent with the Comprehensive Plan amendments to this district. The changes are summarized • Rename the Zone to High Density Residential (R-40) throughout the BMC. • Height – The Comprehensive Plan’s MR district identifies a height of 3 stories with supportive residential uses, such as churches or schools, could be up to 5 stories. The MR zoning code currently matches with the Comprehensive Plan with a maximum height of 45’ for multifamily buildings (typically 14’ per story is 3 stories equals 42’) and 60’ for all uses that need a conditional use approval such as churches and schools. The proposal is to amend the height criteria to protect the existing single-family homes within adjacent Low Density Residential zone from being overshadowed by a multifamily complex. The proposed requirement would be for any MR property adjacent to the Low Density Residential Zone to add an additional foot of setback for every foot of height to the building above 35’. Example: there is a typical 5’ side yard setback and a someone is going to Memo Attachment I for Ord No. 5389 and 5390 build a 45’ building abutting the Low Density Residential (R-10) zone, the side yard setback would be increased to 15’ (10’ additional to the 5’ typical side yard setback = 15’). • Lot width – Lot width is the minimum a lot size width can be when subdividing or changing a lot line on your property. The current code has 30’ which is consistent with the Low Density Residential zone. The amendment removes this requirement as it is no longer applicable to the type of development that this zone permits. Any development that comes to fruition, will have to have sufficient area to meet the density of this zone, and thus this district will not see small lot widths when subdividing. • Maximum Development Coverage – The maximum development coverage of impervious surfaces currently shall not exceed 60%. This is consistent with the Low and Medium Density Residential zones as they are also 60%. The proposal is to increase the maximum coverage to 75% as this is more consistent with a High Density Residential zone (still on the low end with industry standards). • Density – To be consistent with the Comprehensive Plan amendment, the density would be increased to a minimum density of 18 dwelling units per acre and a maximum density of 40 units per acre. • Open Space Requirement – For significant projects of 25 units or more, amendments are proposed to add criteria that 15% of the site shall be preserved for open space for the enjoyment of residents. MODIFY MAP (Amendment #1.2) On September 16, 2019 the Planning Commission held a public hearing and deliberated the Comprehensive Plan docket for 2019. At this hearing, the Commission considered the public comments and testimony that was received, and this resulted in the Commission modifying Amendment #1 Multifamily Residential. As a result of public comments, the Planning Commission made a recommendation to modify the areas where MR was applied. The Commission received testimony and had significant discussions regarding the increased permissible density in the MR district and determined that the area of Anderson Cove (which is predominately duplexes) should maintain its existing density and therefore have an allowed density similar to the current developed density. To maintain a comparable density of the existing MR district, the proposed recommendation is to modify the land use designation around Anderson Cove from MR district to Medium Density Residential (MDR). The area is approximately 25 acres. Memo Attachment II for Ord No. 5389 and 5390 Amendment #2: Public Initiated Proposal – Map change from I to LDR The City has received one public request to amend the Comprehensive Plan. The proposal is to revise the Land Use Map of a portion of the applicant’s property, at the end of Werner Road, from Industrial (I) to Low Density Residential (LDR). The area proposed for land use change is 22.5 acres. Map of Area: Though the City should not be in the practice of removing Industrial lands from the inventory, the proposed boundary for the land use map change is consistent with the topography of the site and thus the Planning Commission unanimously recommended approving this proposal. This new boundary separates the Industrial Lands and the new proposed Low Density Residential area that will be on top of the sloped area. This natural separation creates a buffer between the residential and industrial uses. This subject area is adjacent to the Sound View development which is adding 240 single-family homes into this area. If this rezone was approved, the applicant anticipates adding an additional 120 homes to this development. ULDR (Kitsap) Low Density Residential (LDR) Rural Protection (Kitsap County) City Utility Lands (CUL) Freeway Corridor (FC) UMDR (Kitsap) Industrial (Kitsap) Proposal #2: Public initiated Map change to area highlighted in the red hashmarks from Industrial (I) to Low Density Residential (LDR) Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 Memo Attachment III for Ord No. 5389 and 5390 1 2019 Comprehensive Plan Amendment Docket: Comprehensive Plan Amendments ORDINANCE NO. 5389 AN ORDINANCE of the City Council of the City of Bremerton, Washington, for the 2019 Comprehensive Plan docket to amend the Comprehensive Plan to modify the Multifamily Residential District, and to change the Land Use Maps for two areas: (1) between 15th and 19th Street and Rainier and Naval Avenue from Multifamily Residential to Medium Density Residential and (2) on Werner Road from Industrial to Low Density Residential; and WHEREAS, the City of Bremerton adopted a Comprehensive Plan on May 18, 2016, by Ordinance No. 5299, hereinafter referred to as the “Comprehensive Plan;” and WHEREAS, the Washington State Growth Management Act ("GMA") requires internal consistency among comprehensive plan elements and applicable regional plans; and WHEREAS, the City adopted an area-wide land use classification and zoning for the Comprehensive Plan: Land Use Map (Ord. No. 5299) and Zoning Map (Ord. No. 5301) on May 18, 2016; and WHEREAS, to assure that comprehensive plans remain relevant and up to date, the GMA requires each jurisdiction to establish procedures whereby amendments to the plan are considered by the City Council (RCW 36.70A.130(2)), and limits these amendments to once each year unless an emergency exists; and WHEREAS, the City of Bremerton has established a procedure for amending the Comprehensive Plan in Title 20.10.010 of the Bremerton Municipal Code (“BMC”), that limits amendments to the Comprehensive Plan to no more than once each year; and WHEREAS, the zoning code and maps must be consistent with the Comprehensive Plan, therefore a concurrent ordinance (Ordinance Number 5390) is being considered to amend the zoning code and maps to maintain consistency; and WHEREAS, the Planning Commission conducted two workshops on the 2019 Comprehensive Plan amendments and associated Zoning Code changes proposal on April 22 and June 17, 2019 which throughout the processes the Commission received written comments and various verbal testimonies; and WHEREAS, on July 2, 2019, the Washington State Department of Commerce was notified of the City’s Comprehensive Plan Amendment docket for 2019; and WHEREAS, on August 8, 2019, a SEPA Determination of Nonsignificance was issued for amendment docket items with a 14-day comment period; and 2 2019 Comprehensive Plan Amendment Docket: Comprehensive Plan Amendments WHEREAS, on September 6, 2019, the public was notified by a legal advertisement in the Kitsap Sun of the opportunity to make comment and participate in the public hearing by the Planning Commission; and WHEREAS, on September 16, 2019, the Planning Commission conducted a public hearing on the 2019 Comprehensive Plan Amendment Docket, and the Planning Commission recommended the City Council make recommendations on the amendments as presented; and WHEREAS, on December 6, 2019, the public was notified by a legal advertisement in the Kitsap Sun of the opportunity to make comment and participate in the public hearing by the City Council; and WHEREAS, on December 18, 2019 the City Council conducted a public hearing and considered all testimony prior to their decision; and WHEREAS, the proposal meets requirements of the GMA; and WHEREAS, the proposal is consistent with Kitsap County Countywide Planning Policies (“KCCPP”); NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findings and Recitals Incorporated. The findings and recitals set forth above are hereby incorporated by reference. SECTION 2. The findings and conclusions adopted by the Planning Commission on September 16, 2019 and attached hereto as Exhibit A are adopted and incorporated as if set forth fully herein. SECTION 3. The City of Bremerton Comprehensive Plan is hereby amended by approving and adopting docket items listed in this section as follows: Amendment #1.1 Modify the Multifamily Residential District. Amend the Multifamily Residential District within the Comprehensive Plan’s Land Use Element (page LU-34), more particularly described in Exhibit B affixed hereto, as follows: a. Increase permissible density from 20 units per acre to 40 dwelling units per acre; b. Rename District to High Density Residential (HDR); and c. Due to the renaming of this district to High Density Residential (HDR), all Land Use Maps are updated as illustrated in Exhibit C for the name change. 3 2019 Comprehensive Plan Amendment Docket: Comprehensive Plan Amendments Amendment #1.2 Modify the Land Use Maps. As this ordinance will increase the Multifamily Residential permissible maximum density, the 25 acres between 15th and 19th Street and Rainier and Naval Avenue area, known as the general area of Anderson Cove, shall have a land use designation change from Multifamily Residential (MR) to Medium Density Residential (MDR). This modification will allow this area to maintain the current district’s permissible density as MDR is the comparable zoning designation to the existing density. The subject area to be changed from MR to MDR is shown in a close- up map in Exhibit D and incorporated in the new official Land Use Map #2 which is part of Exhibit C affixed hereto. Public Request to revise Land Use Maps on Werner Road. Revise the Land Use map for approximately 22.5 acres on Werner Road to change the land use designation from Industrial to Low Density Residential district, more particularly described in the close-up map as shown in Exhibit E and incorporated in the new official Land Use Map #4 which is part of Exhibit C affixed hereto. SECTION 4. Corrections. The City Clerk and codifiers of this corrections to this ordinance including, but not limited to, the correction of scrivener, clerical, typographical, and spelling errors, references, ordinance numbering, section/subsection numbers and any references thereto. SECTION 5. Severability. If any provision of this ordinance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remainder of this ordinance. Provided however, that if any provision of this ordinance is held invalid or unconstitutional, then the provision in effect prior to the effective date of this ordinance shall be in full force and effect for that individual provision as if this ordinance had never been adopted. 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 ____________________, 2019. ERIC YOUNGER, Council President Approved this ___________ day of ____________________, 2019. GREG WHEELER, Mayor 4 2019 Comprehensive Plan Amendment Docket: Comprehensive Plan Amendments ATTEST: APPROVED AS TO FORM: ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the ________ day of ______________________, 2019. EFFECTIVE the _________day of ______________________, 2019. ORDINANCE NO. 5389 Exhibit A to Ord No. 5389 Exhibit A to Ord No. 5389 Exhibit A to Ord No. 5389 Exhibit A to Ord No. 5389 Exhibit A to Ord No. 5389 Exhibit A to Ord No. 5389 City of Bremerton Comprehensive Plan LU-34 Land Use Element Element 2 Land Use Designation: Multifamily Residential MR (Multifamily Residential) High Density Residential (HDR) Purpose/Intent To provide a high standard of development for residential multifamily type structures and to provide a variety of housing options for a wide diversity of people. This designation should be limited to those neighborhoods that are currently developed with multifamily housing. Location Neighborhoods that consist primarily of multifamily type structures as mapped. Land Uses Residential uses of multifamily dwelling units, townhomes, duplexes, and single family attached or detached. Supporting residential uses, such as schools, parks and churches, and nursing homes/senior complexes should be allowed within this designation. Intensity/Density •20 units per acre 40 dwelling units per acre •Three stories and supporting residential uses could be up to five stories Character This designation is generally for areas that generally have an existing intense level of development and includes properties that are primarily multifamily development, such as condominiums, apartments, and senior housing complex/nursing homes. Most structures are one to three story multifamily structures. Multifamily Residential Policies LU1: Plan for Growth LU1-MR(A): Provide wider variety in residential designations throughout the city to achieve a greater diversity of housing. Support existing multifamily neighborhoods that enhance the quality of life for the City's existing and future residents. LU2: Encourage Economic Development LU2-MR(A): Encourage adaptive reuse and preservation of existing commercial spaces that are compatible with the surrounding community. LU3: Protect the Environment LU3-MR(A): Encourage clustering to reduce total site footprint and help maintain natural hydrologic characteristics of the site. LU4: Promote Community Health LU4-MR(A): Promote neighborhoods that foster interaction among residents, contribute to well-being of citizenry, and create and sustain a sense of community and personal safety. LU4-MR(B): Develop pedestrian connections between residential areas and neighborhood services and parks. Ensure street design and orientation that encourage pedestrian and bicycle use. Exhibit B to Ord No. 5389 Exhibit C to Ord No 5389 Exhibit C to Ord No 5389 Exhibit C to Ord No 5389 Exhibit C to Ord No 5389 Exhibit D for Ord No. 5389 Exhibit E for Ord No. 5389 1 Zoning Code Amendments for the 2019 Comprehensive Plan Amendment Docket ORDINANCE NO. 5390 AN ORDINANCE of the City Council of the City of Bremerton, Washington, for the 2019 Comprehensive Plan docket to amend the Zoning Code to modify the Multifamily Residential District, and to change the zoning maps for approximately 25 acres between 15th and 19th Street and Rainier and Naval Avenue from Multifamily Residential to Medium Density Residential; and WHEREAS, the Washington State Growth Management Act ("GMA") requires internal consistency among comprehensive plan elements and applicable regional plans; and WHEREAS, the City of Bremerton adopted a Zoning Code on May 18, 2016, by Ordinance No. 5301 hereinafter referred to as the “Zoning Code;” and WHEREAS, the City adopted an area-wide land use classification and zoning for the Comprehensive Plan: Land Use Map (Ord. No. 5299) and Zoning Map (Ord. No. 5301) on May 18, 2016; and WHEREAS, the zoning code and maps must be consistent with the Comprehensive Plan; and WHEREAS, the City of Bremerton has established a procedure and criteria for approval for amending City proposed text amendments in the Zoning Code in Title 20.18 of the BMC. This procedure supports Comprehensive Plan and Zoning Code amendments to be processed concurrently; and WHEREAS, this ordinance approves the 25 acres area-wide rezone from Multifamily Residential to Medium Density Residential pursuant to BMC 20.58.050 entitled Area-wide Rezones. This rezone will ensure consistency between this ordinance’s amendments to the Comprehensive Plan and the City’s Zoning Code; and WHEREAS, the City Council will conduct an additional public hearing for the site-specific rezone for the Zoning Map change on Werner Road pursuant to BMC 20.58.040 entitled, Site-Specific Rezone.; and WHEREAS, the Planning Commission conducted two workshops on the 2019 Comprehensive Plan amendments and associated Zoning Code changes proposal on April 22 and June 17, 2019; and WHEREAS, on July 2, 2019, the Washington State Department of Commerce was notified of the City’s Comprehensive Plan Amendment docket for 2019; and WHEREAS, on August 8, 2019, a SEPA Determination of Nonsignificance was 2 Zoning Code Amendments for the 2019 Comprehensive Plan Amendment Docket issued for amendment docket items with a 14-day comment period; and WHEREAS, on September 6, 2019, the public was notified by a legal advertisement in the Kitsap Sun of the opportunity to make comment and participate in the public hearing by the Planning Commission; and WHEREAS, on September 16, 2019, the Planning Commission conducted a public hearing on the 2019 Comprehensive Plan Amendment Docket and its associated zoning code amendments, and the Planning Commission recommended the City Council adopt amendments as presented here in this ordinance; and WHEREAS, on December 6, 2019, the public was notified by a legal advertisement in the Kitsap Sun of the opportunity to make comment and participate in the public hearing by the City Council; and WHEREAS, on December 18, 2019 the City Council conducted a public hearing and considered all testimony prior to their decision; and WHEREAs, on the December 18, 2019 the City Council adopted Ordinance No. 5389 which amended the City’s Comprehensive Plan and those amendments require Zoning Code text and map change; and WHEREAS, the proposal meets requirements of the GMA; and WHEREAS, the proposal is consistent with Kitsap County Countywide Planning Policies (“KCCPP”); NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findings and Recitals Incorporated. The findings and recitals set forth above are hereby incorporated by reference. SECTION 2. Amend Chapter 20.40 of the Bremerton Municipal Code entitled “Administration” by amending Figure 20.40(a) to rename “Multifamily Residential (R-20)” to “High Density Residential (R-40);” and SECTION 3. Amend the official Zoning Maps #1, #2, #3 and #4 of the Bremerton Municipal Code Title 20 by renaming the Zoning designation “Multifamily Residential” to “High Density Residential” as described in Exhibit A affixed hereto. SECTION 4. Amend Chapter 20.79 of the Bremerton Municipal Code entitled “Multifamily Residential” by renaming this Zoning designation to “High Density Residential (R- 40);” and 3 Zoning Code Amendments for the 2019 Comprehensive Plan Amendment Docket SECTION 5. Amend Chapter 20.79 of the Bremerton Municipal Code entitled “Multifamily Residential” by amending Subsection 20.79.010 as follows: 20.79.010 INTENT. The intent of the multifamily residential (R-20) high density residential (R-40) zoning district is to provide a high standard of development for residential multifamily type structures and to provide a variety of housing options for a wide diversity of people, within neighborhoods that are currently developed with multifamily development. In addition, this zone supports to supporting the adopted Downtown Subarea Plan. SECTION 6. Amend Chapter 20.79 of the Bremerton Municipal Code entitled “Multifamily Residential” by amending Subsection 20.79.020 as follows: 20.79.020 OUTRIGHT PERMITTED USES. The following uses are permitted outright: (a) Co-location of wireless communications per BMC 20.46.140; (b) Residential Use. Dwelling units, including a duplex or townhouse, must meet the underlying density of this zone unless otherwise allowed for by state law or city code. Residential uses include: (1) Day care facility (twelve (12) or fewer persons receiving care); (2) Foster home; (3) Class I group residential facility; (4) Multi-unit dwelling units; (5) Single-unit dwelling unit, attached (zero (0) lot lines); (6) Single-unit dwelling unit, detached; (7) Townhouses; (8) Duplexes. SECTION 7. Amend Chapter 20.79 of the Bremerton Municipal Code entitled “Multifamily Residential” by amending Subsection 20.79.040 as follows: 20.79.040 CONDITIONAL USES. The following conditional uses shall be permitted pursuant to BMC 20.58.020, provided the conditional use complies with the corresponding standard as listed in BMC 20.60.040 (low density residential (R-10) zone), except the criteria for minimum site area is not applicable to this zone for the following uses: (a) Bed and breakfast; (b) Senior housing complex; (c) Nursing/convalescent home; (d) Day care facilities (more than twelve (12) persons receiving care); (e) Worship, religious, and community facilities; (f) Schools, parks and associated facilities of the types set forth in BMC 20.60.040(j). SECTION 8. Amend Chapter 20.79 of the Bremerton Municipal Code entitled “Multifamily Residential” by amending Subsection 20.79.060 as follows: 4 Zoning Code Amendments for the 2019 Comprehensive Plan Amendment Docket 20.79.060 DEVELOPMENT STANDARDS. (a) For properties located within the downtown regional center, the Downtown Subarea Plan will regulate development standards. The following development standards listed are for all other locations where the R-20 R-40 zone is located. (b) Lot Standards. Lot development requirements shall be in accordance with this section and the following standards unless allowed for by law otherwise: (1) Setbacks. (i) Minimum front yard setback is fifteen (15) feet; (ii) Minimum side yard setback is five (5) feet; (iii) Minimum rear yard setback is fifteen (15) feet. (2) The maximum height of the structure shall meet the following: (i) Maximum structure height is forty-five (45) feet, except that conditionally allowed uses per BMC 20.79.040 may be sixty (60) feet unless otherwise noted; and (ii) For properties that are adjacent to Low Density Residential (R-10) zone, buildings taller than thirty-five (35) feet shall increase the setback by one foot from the R- 10 zone property line for every one (1) foot building height increase over thirty-five (35) feet. (3) Minimum lot width is thirty (30) feet (43) Maximum development coverage is sixty (60) seventy-five (75) percent. (bc) Zero (0) Lot Line (ZLL) Development. An attached single-family dwelling and/or garage structure may have a single shared side or rear lot line, and a setback reduced to zero (0), provided the structure complies with building code fire separation requirements. (cd) Garages, Storage Buildings and Shops. (1) Garage, Carport, and Shop Vehicle Entrance Setbacks. When the vehicle entrance faces the street, the garage, carport, or shop shall have a front yard setback of at least twenty (20) feet, except as provided in BMC 20.44.020 (Traditional front yard). (e) Minimum density: five (5) eighteen (18) dwelling units per acre. (f) Maximum density: twenty (20) forty (40) dwelling units per acre. (g) Open Space. For projects of 25 units or more, a minimum of 15% of the net site area shall be set aside and utilized as open space for use and enjoyment of future residents either as passive and/or active space. Designated critical areas pursuant to Chapter 20.14 BMC shall not be used for the open space. Such open spaces shall at a minimum meet the following standards: (1) Passive and Active Open Spaces. All open spaces must include facilities for active and/or passive recreation. Passive spaces could include facilities such as trails, benches, shelters, public plaza, and year-round water-feature. Active spaces can include children play equipment, paved hard court (basketball or tennis court), flat, open lawn for ballfield and other such facilities. (2) Open Space Plan. For all designated open space areas the proposal shall include an open space plan. This plan is to ensure the open space is maintained and preserved in perpetuity. All open space areas shall comply with the following: (i) Identify all proposed improvements such as public facilities, proposed vegetation, and existing vegetation to remain; and 5 Zoning Code Amendments for the 2019 Comprehensive Plan Amendment Docket (ii) The plan must comply with the requirements of the landscaping chapter, found in Chapter 20.50 BMC; and (iii) The plan shall outline maintenance responsibilities; and (iv) The plan shall include a notice to title approved by the City and recorded with the County Auditor. This notice shall include provisions for the designation and retention of open space, and provisions for permanent maintenance of the open space and/or commonly owned facilities. SECTION 9. The City of Bremerton Zoning Maps #2, adopted by Ordinance 5301 located within Title 20 of the Bremerton Municipal Code, is hereby amended as set forth in Exhibit A. The amendments are described as the 25 acres rezone from Multifamily Residential to Medium Density Residential between 15th and 19th Street and Naval and Rainier Avenue. SECTION 10. Corrections. The City Clerk and codifiers of this corrections to this ordinance including, but not limited to, the correction of scrivener, clerical, typographical, and spelling errors, references, ordinance numbering, section/subsection numbers and any references thereto. SECTION 11. Severability. If any provision of this ordinance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remainder of this ordinance. Provided however, that if any provision of this ordinance is held invalid or unconstitutional, then the provision in effect prior to the effective date of this ordinance shall be in full force and effect for that individual provision as if this ordinance had never been adopted. SECTION 18. 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 ____________________, 2019. ERIC YOUNGER, Council President Approved this ___________ day of ____________________, 2019. GREG WHEELER, Mayor 6 Zoning Code Amendments for the 2019 Comprehensive Plan Amendment Docket ATTEST: APPROVED AS TO FORM: ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the ________ day of ______________________, 2019. EFFECTIVE the _________day of ______________________, 2019. ORDINANCE NO. 5390 Exhibit A to Ord No. 5390 Exhibit A to Ord No. 5390 Exhibit A to Ord No. 5390 Exhibit A to Ord No. 5390 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: December 11, 2019 Closed Record Public Hearing on Ordinance No. 5391 approving a Rezone of approximately 22.5 acres on Werner Road (from Industrial to Low Density Residential) COUNCIL MEETING Date: December 18, 2019 Department: DCD Presenter: Allison Satter Phone: (360) 473-5845 SUMMARY: Consistent with the 2019 Comprehensive Plan Amendments, the action before the Council is to grant approval of a rezone of the subject parcels located on 9000 Werner Road and surrounding area (tax parcel id: 202401-4-002-2003, 202401-4-001-2004, 4597-000-193-0008, 4597- 000-001-0000, 4597-000-076-0000, 4597-000-085-0009, 4597-000-096-0006, 4597-000-099-0003, 4597-000-104-0006, 4597-000-107-0003, 4597-000-108-0002, 4597-000-112-0204, 4597-000-217- 0000) from Industrial (I) to Low Density Residential (R-10). ATTACHMENTS: Staff Memorandum Proposed Ordinance o Exhibit A: Hearing Examiner Findings, Conclusion and Recommendation o Exhibit B: Close-up of Rezone area showing change from Industrial to Low Density Residential and legal description o Exhibit C: New official Zoning Map #2 with rezone reflected FISCAL IMPACTS (Include Budgeted Amount): None. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☒ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. 5391 approving a rezone of approximately 22.5 acres at Werner Road from Industrial to Low Density Residential. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A24 To: City Council From: Allison Satter, Sr. Planner Date: December 2, 2019 Re: Werner Road Rezone – BP19 00069 This action is to rezone multiple parcels located at the end of Werner Road (9000 Werner Road) from Industrial (I) to Low Density Residential (R-10). Please see Exhibit B of the proposed ordinance for the map of the subject properties. The Bremerton Municipal Code (BMC) 20.40.170 requires consistency between the Comprehensive Plan land use designations and the zoning code and maps. This rezone will be considered by City Council the same night that the Public Hearing for the 2019 Comprehensive Plan Amendments will be processed. The Comprehensive Plan amendments would change the subject properties land use designation and therefore create an inconsistency between the Comprehensive Plan and the Zoning Code. This rezone action is to resolve this inconsistency. Rezone actions are classified by the BMC as a “Type IV City Council Decision” whereby the City’s Hearing Examiner holds the open-record public hearing, creates the official public record for the rezone, and provides a recommendation to the City Council. The Hearing Examiner conducted the public hearing on October 28, 2019 and issued a recommendation of rezone to R-10 on November 12, 2019 (see Exhibit A of the proposed ordinance for the Examiner’s recommendation, findings and conclusions). The Council shall conduct a closed-record public hearing, consider the record and recommendation prepared by the Hearing Examiner, and provide a decision on the rezone to R-10 for the Parcel Nos.: 202401-4-002-2003, 202401-4-001-2004, 4597-000-193-0008, 4597-000-001-0000, 4597-000-076-0000, 4597-000-085-0009, 4597-000-096-0006, 4597- 000-099-0003, 4597-000-104-0006, 4597-000-107-0003, 4597-000-108-0002, 4597-000- 112-0204, 4597-000-217-0000. DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM 1 2019 Werner Road Rezone ORDINANCE NO. 5391 AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending the Official Zoning Map for 22.5 acres at 9000 Werner Road from Industrial (I) to Low Density Residential (R-10), to establish zoning that is consistent with the 2019 Comprehensive Plan Amendment Docket (Ord. 5389). WHEREAS, the City of Bremerton adopted a Comprehensive Plan on May 18, 2016, by Ordinance No. 5299, hereinafter referred to as the “Comprehensive Plan;” and WHEREAS, the City of Bremerton Municipal Code (BMC) Chapter 20.10 allows applications for annual amendments to the Comprehensive Plan and consistent with this annual process, a public-request was initiated for Comprehensive Plan land use change for the subject parcels located at 9000 Werner Road to change the land use designation from Industrial (I) to Low Density Residential (LDR); and WHEREAS, the Washington State Growth Management Act ("GMA") requires internal consistency among comprehensive plan elements and applicable regional plans; and WHEREAS, the City of Bremerton adopted a Zoning Code on May 18, 2016, by Ordinance No. 5301 hereinafter referred to as the “Zoning Code;” and WHEREAS, the City adopted an area-wide land use classification and zoning for the Comprehensive Plan: Land Use Map (Ord. No. 5299) and Zoning Map (Ord. No. 5301) on May 18, 2016; and WHEREAS, the zoning code and maps must be consistent with the Comprehensive Plan; and WHEREAS, of Comprehensive Plan Application for Land Use Map change was submitted on March 28, 2019 and it was processed with the 2019 Docket; and WHEREAS, on July 2, 2019, the Washington State Department of Commerce was notified of the City’s Comprehensive Plan Amendment docket for 2019 including this rezone proposal; and WHEREAS, the City of Bremerton Municipal Code (BMC) Chapter 20.02 specifies procedures for rezone applications by property owners, and a complete application for the rezone for the subject parcels was submitted to the City on August 5, 2019; and WHEREAS, on August 8, 2019, a SEPA Determination of Nonsignificance was issued for amendment docket items with a 14-day comment period; and 2 2019 Werner Road Rezone WHEREAS, the Planning Commission conducted two workshops on the 2019 Comprehensive Plan amendments and associated Zoning Code changes proposal on April 22 and June 17, 2019. Following a Public Hearing on September 16, 2019, the Planning Commission made the recommendation to City Council for the approval of the Comprehensive Plan land use change from Industrial (I) to Low Density Residential (LDR) for the 22.5 acres; and WHEREAS, pursuant to Bremerton Municipal Code 20.40.170 City’s zoning designations are required to be fully consistent with underlying Comprehensive Plan land use designations and therefore a rezone application was necessary to match the 2019 Comprehensive Plan amendment docket; and WHEREAS, an application for rezone was submitted to the City on August 5, 2019; and WHEREAS, site specific rezones are a Type IV decision requiring the Hearing Examiner to hold an open record hearing and provide a recommendation to the City Council; and WHEREAS, on October 1, 2019 the public was notified by legal advertisement in the Kitsap Sun of the opportunity to comment and participate in the open record public hearing held by the Hearing Examiner; and WHEREAS, on October 28, 2019 the Hearing Examiner conducted an open record public hearing on the rezone to change the subject parcels on Werner Road from Industrial (I) to Low Density Residential (R-10); and WHEREAS, on November 12, 2019 the Hearing Examiner issued findings, conclusions, and recommendation to rezone the subject property to Low Density Residential (R- 10); and WHEREAS, on December 6, 2019 the public was notified by a legal advertisement in the Kitsap Sun of the public hearing by the City Council; and WHEREAS, on December 18, 2019 the City Council conducted a closed record public hearing to consider the rezone proposal; and WHEREAS, on December 18, 2019 City Council held a Public Hearing, and adopted Ordinance No. 5389 adopting the 2019 Comprehensive Plan Amendment Docket which included the land use change of the subject parcels consisting of 22.5 acres located at the end of Werner Road from Industrial to Low Density Residential; and WHEREAS, the current zoning of the site of Industrial (I) is not consistent with the land use map and the proposed rezone to Low Density Residential (R-10) brings the site into conformance with the updated Comprehensive Plan land use map and is consistent BMC 20.40.170; NOW THEREFORE 3 2019 Werner Road Rezone THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Recitals Incorporated. The recitals set forth in this ordinance are hereby incorporated as if fully set forth herein. SECTION 2. The findings, conclusions and recommendation of the Hearings Examiner attached hereto as Exhibit A are adopted and incorporated as if set forth fully herein. SECTION 3. The Official Zoning Map is hereby amended to change the zoning of Werner Road (Parcel Nos. 202401-4-002-2003, 202401-4-001-2004, 4597-000-193-0008, 4597-000-001-0000, 4597-000-076-0000, 4597-000-085-0009, 4597-000-096-0006, 4597-000- 099-0003, 4597-000-104-0006, 4597-000-107-0003, 4597-000-108-0002, 4597-000-112-0204, 4597-000-217-0000) from Industrial (I) to Low Density Residential (R-10) more particularly depicted in the close-up map as shown in Exhibit B and illustrated in the new official Zoning Map #4 in Exhibit C. SECTION 4. Corrections. The City Clerk and codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener, clerical, typographical, and spelling errors, references, ordinance numbering, section/subsection numbers and any references thereto. SECTION 4. Severability. If any provision of this ordinance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remainder of this ordinance. Provided however, that if any provision of this ordinance is held invalid or unconstitutional, then the provision in effect prior to the effective date of this ordinance shall be in full force and effect for that individual provision as if this ordinance had never been adopted. 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 ____________________, 2019 _________________________________ ERIC YOUNGER, Council President Approved this ________ day of ________________________, 2019 _________________________________ GREG WHEELER, Mayor 4 2019 Werner Road Rezone ATTEST: APPROVED AS TO FORM: __________________________________ ________________________________ ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the________ day of ______________________, 2019 EFFECTIVE the_________day of ______________________, 2019 ORDINANCE NO. 5391 Findings, Conclusions, and Recommendation City of Bremerton Hearing Examiner Werner Road Rezone, No. BP19-00069 Page 1 of 6 BEFORE THE HEARING EXAMINER FOR THE CITY OF BREMERTON In the Matter of the Application of ) No. BP19-00069 ) Harbor Custom Homes ) Werner Road Rezone ) ) ) FINDINGS, CONCLUSIONS, For Approval of a Rezone Request ) AND RECOMMENDATION SUMMARY The Hearing Examiner recommends that the request to rezone approximately 22.5 acres from the “Industrial” zoning designation to the “Low Density Residential” (R-10) zoning designation, including 9000 Werner Road, be APPROVED. SUMMARY OF RECORD Hearing Date: The Hearing Examiner held an open record hearing on the request on October 28, 2019. Testimony: The following individuals presented testimony under oath at the open record hearing: Garrett Jackson, City Planner Norm Olsen, Applicant Representative Exhibits: The following exhibits were admitted into the record: 1. Application for Site Specific Rezone, received August 5, 2019; Project Narrative; Vicinity Map 2. Zoning Map 4, undated 3. Land Use Map, undated 4. Wetland Delineation, BGE Environmental, LLC, dated April 6, 2018 5. Legal Description; Rezone Exhibit, dated October 21, 2019 6. Notice Materials: a.Determination of Completeness, dated September 30, 2019 b.Declaration of Mailing, dated September 30, 2019; with Notice of Application and Public Hearing, dated October 1, 2019; Proposed Comprehensive Plan Map Change Concept Plan; and Land Use Map, undated c.Declaration of Posting, dated October 1, 2019; Notice of Application and Public Hearing, dated October 1, 2019 d. Invoice, Kitsap Sun, for publication October 1, 2019 Exhibit A Findings, Conclusions, and Recommendation City of Bremerton Hearing Examiner Werner Road Rezone, No. BP19-00069 Page 2 of 6 7. Determination of Nonsignificance, dated August 8, 2019 8. Staff Analysis and Conclusion, dated October 18, 2019 9. Findings and Conclusions of the Bremerton Planning Commission, dated September 16, 2019 10. Notice of Environmental Review for 2019 Comprehensive Plan Docket and Zoning Code Amendments, dated August 8, 2019; with attached materials The Hearing Examiner enters the following Findings and Conclusions based upon the testimony and exhibits admitted at the open record hearing: FINDINGS Application and Notice 1. Harbor Custom Homes (Applicant) requests approval to rezone approximately 22.5 acres from the “Industrial” zoning designation to the “Low Density Residential” (R-10) zoning designation. The undeveloped property is located adjacent to Werner Road, and includes property at 9000 Werner Road. The City of Bremerton (City) is currently in the process of changing the land use designation for the subject property, under the Comprehensive Plan, from Industrial to Low Density Residential.1 Exhibit 1; Exhibit 8, Staff Report, pages 1 and 2; Exhibit 10. 2. The City determined the application was complete on September 30, 2019. On October 1, 2019, the City provided notice of the application and the associated open record hearing by mailing notice to all owners of real property within 300 feet of the subject property, and by posting the combined notice on the subject property, and by publishing notice in the Kitsap Sun.2 The City received no public comments in response to its notice materials. Exhibit 6. State Environmental Policy Act 3. The City Department of Community Development acted as lead agency and analyzed the environmental impacts of the proposed rezone request under the State Environmental Policy Act (SEPA), Chapter 43.21C Revised Code of Washington (RCW). The City reviewed the potential environmental impacts associated with the proposal concurrently with the environmental review it performed in adoption of its annual Comprehensive Plan amendments (for 2019). As noted above, the City is currently in the process of changing the land use designation for the subject property under the Comprehensive Plan. The 1 The subject properly is identified by tax parcel numbers: 202401-4-002-2003, 202401-4-001-2004, 4597- 000-193-0008, 4597-000-001-0000, 4597-000-076-0000, 4597-000-085-0009, 4597-000-096-0006, 4597- 000-099-0003, 4597-000-104-0006, 4597-000-107-0003, 4597-000-108-0002, 4597-000-112-0204, 4597- 000-217-0000. Exhibit 9. A legal description of the property is included with the application materials. Exhibit 5. 2 Bremerton Municipal Code (BMC) 20.02.100 and BMC 20.02.110 permit combined notice of application and open record hearing. Exhibit A Findings, Conclusions, and Recommendation City of Bremerton Hearing Examiner Werner Road Rezone, No. BP19-00069 Page 3 of 6 City reviewed the environmental checklist associated with the property, and other information on file, and determined that changing the land use designation and zoning for the property would not have a probable significant adverse impact on the environment. Accordingly, the City issued a Determination of Nonsignificance (DNS) on August 8, 2019, by publishing, mailing, and posting notice, with a comment deadline August 23, 2019. No comments specific to the rezone of the subject property were received and the DNS was not appealed. Exhibit 7; Exhibit 8, Staff Report, page 2; Exhibit 10. Site-Specific Rezone 4. The Growth Management Act (GMA), Chapter 36.70A RCW, requires cities and counties to engage in a planning process. RCW 36.70A.040. Thirteen exclusive goals guide that process: the goals concern urban growth, sprawl reduction, transportation, ho using, economic development, property rights, permitting, natural resource industries, open space and recreation, the environment, citizen participation and coordination, public facilities and services, and historic preservation. RCW 36.70A.020. Any jurisdiction subject to the GMA’s planning requirement must balance these sometimes competing goals (see Feil v. E. Wash. Growth Mgmt. Hrgs. Bd., 172 Wn.2d 367 (2011)) and produce a Comprehensive Plan that guides future growth and development. RCW 36.70A.040 through .120. The jurisdiction must then enact development regulations implementing the Comprehensive Plan and otherwise act in conformity with the Comprehensive Plan. RCW 36.70A.120. 5. Here, the subject property is currently designated “Industrial” under the City’s Comprehensive Plan. The City, however, seeks to change the Comprehensive Plan designation to Low Density Residential when it amends its Comprehensive Plan later this year. The City’s Planning Commission reviewed the proposed amendment and conducted a public hearing on the proposed changes. No comments specific to the Comprehensive Plan designation changes at Werner Road were received. On September 16, 2019, the Planning Commission produced a decision recommending that the City Council change the designation, as requested. It determined that, consistent with Bremerton Municipal Code (BMC) 20.10.080, the Comprehensive Plan amendment would: be consistent with the GMA and with the City’s Comprehensive Plan and its other goals and policies; allow the opportunity for more housing as the City and region are experiencing shortages related to affordable housing; be consistent with existing or planned land uses in the area; and not adversely affect the City’s ability to provide urban services to the area. Exhibit 9; Exhibit 10. 6. Much of the land in the general area that includes the subject property is underdeveloped or undeveloped. Surrounding property use includes industrial areas to the north, south, and west, and residential areas to the east. Surrounding zoning designations include Low-Density Residential (R-10) to the east and Industrial (I) to the north, south, and west. A portion of the land to the south is also zoned as City Utility Land (CUL). Exhibit 2; Exhibit 3; Exhibit 8, Staff Report, page 1. Exhibit A Findings, Conclusions, and Recommendation City of Bremerton Hearing Examiner Werner Road Rezone, No. BP19-00069 Page 4 of 6 7. The area that is proposed to be rezoned includes several critical areas, including wetlands and geologically hazardous areas. The Applicant submitted a Wetland Delineation, prepared by BGE Environmental, LLC (“BGE”), assessing on-site critical areas. BGE determined that there are two Category IV wetlands on-site that would require 50-foot wetland buffers when future site development occurs. In addition, the Applicant submitted information stating that the property contains steeps slopes which are not conducive to use of the site for industrial purposes. Any future development of the site would require additional analysis to ensure the City’s critical areas ordinances are satisfied. Exhibit 1; Exhibit 4. 8. City staff reviewed the proposal for consistency with the requirements for a rezone under BMC 20.58.040(d) and determined: The rezone would be consistent with the Comprehensive Plan designation for the property so long as the City Council adopts the Planning Commission’s recommendation to change the land use designation of the property from Industrial to Low Density Residential. The rezone would advance the public, health, safety, and welfare and would not have adverse impacts on adjacent properties. Specifically, the amendment would separate industrial and residential uses, through utilizing existing topographical constraints, to provide a transition between industrial land and existing residential development. Moreover, because of on-site critical areas, the site is more conducive to residential development rather than industrial development. The rezone is necessary because conditions in the immediate vicinity or neighborhood have changed and the rezone request would serve the public interest. Specifically, there is a demand for increased residential development in the area. Exhibit 8, Staff Report, pages 2 and 3. Testimony 9. City Planner Garrett Jackson testified generally about the proposal. He explained that the City Council would decide on December 18, 2019, whether to change the land use designation for the property, under the Comprehensive Plan, from Industrial to Low Density Residential. Mr. Jackson explained that, without such approval, it would be inappropriate to rezone the property. Exhibit 8, Staff Report, pages 2 and 3; Testimony of Mr. Jackson. 10. Applicant Representative Norm Olsen testified that the Applicant concurs with the City’s assessment of the site-specific rezone and the Planning Commission’s recommendation that the City Council amend the designation of the property under the Comprehensive Plan. Testimony of Mr. Olsen. Exhibit A Findings, Conclusions, and Recommendation City of Bremerton Hearing Examiner Werner Road Rezone, No. BP19-00069 Page 5 of 6 CONCLUSIONS Jurisdiction The Hearing Examiner has authority to conduct an open record hearing on a rezone request and to issue a recommendation on the request to the Bremerton City Council. Bremerton Municipal Code (BMC) 2.13.070; BMC 2.13.080(3); BMC Chapter 20.02, Table 040. Criteria for Review The Hearing Examiner holds the open record hearing on the rezone request and provides a recommendation to the City Council. Chapter 20.02 BMC, Table 040; BMC 20.58.040(b). The City may grant a site-specific rezone only if it finds that: (1) The rezone is consistent with the Comprehensive Plan; (2) The rezone will advance the public health, safety, or welfare, and will not have adverse impacts on adjacent properties; (3) The rezone is necessary because either: (i) Conditions in the immediate vicinity or neighborhood have so markedly changed that it is in the public interest to approve the rezone; or (ii) The rezone will correct a zone classification or zone boundary that was inappropriate when established; and (4) The rezone is in the public interest. BMC 20.58.040(d). Conclusions Based on Findings 1. The proposed rezone would be consistent with the City Comprehensive Plan . The Planning Commission has recommended that the City Council amend the land use designation for the property from Industrial to Low Density Residential as part of the 2010 Annual Comprehensive Plan Amendments process. The Applicant’s request to change the zoning from “Industrial” to “Low Density Residential” (R-10), would be consistent with the City Comprehensive Plan, if amended by the City Council. Findings 1, 3 – 10. 2. The proposed rezone would advance the public health, safety, or welfare, and would not have adverse impacts on adjacent properties. The City provided adequate public notice and opportunity for comment on the rezone request. No public comments specific to the rezone proposal were received. The City analyzed the environmental impacts of amending the property’s zoning designation in conjunction with the City’s process for evaluating changing the Comprehensive Plan designation for the property. The City determined that the proposed rezone would not have a probable significant adverse impact on the environment and issued a DNS. The proposed rezone from Industrial to Low Density Residential (R-10) is appropriate for these parcels and would benefit adjacent properties by providing a transition for the existing residential area to the east and the industrial areas to the west. The rezone would facilitate development of additional housing in the area. Findings 1 – 10. Exhibit A Findings, Conclusions, and Recommendation City of Bremerton Hearing Examiner Werner Road Rezone, No. BP19-00069 Page 6 of 6 3. The proposed rezone is necessary because conditions in the immediate vicinity and neighborhood have changed and it would be in the public interest to approve the rezone request. The City’s Planning Commission determined that a change in the Comprehensive Plan designation from Industrial to Low Density Residential is appropriate, especially given the increased need for housing the vicinity and region. Assuming the City Council adopts the Commission’s recommendation, approval of this rezone request would implement the Comprehensive Plan with appropriate development regulations as required by the Growth Management Act. Findings 1 – 10. RECOMMENDATION Based on the findings and conclusions above, the Hearing Examiner recommends that the request to rezone approximately 22.5 acres from the “Industrial” zoning designation to the “Low Density Residential” (R-10) zoning designation, located adjacent to Werner Road, including the property at 9000 Werner Road, be APPROVED. RECOMMENDED this 12th day of November 2019. ANDREW M. REEVES Hearing Examiner Sound Law Center Exhibit A Exhibit B for Ord No. 5391 (REZONE AREA) THAT PORTION OF THE WEST HALF OF THE SOUTHEAST QUARTER OF SECTION 20, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 20; THENCE NORTH 88 °37'35" WEST ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER, 1314.07 FEET TO THE SOUTHWEST CORNER OF BOUNDARY LINE ADJUSTMENT RECORDED UNDER AUDITOR'S FILE NUMBER 201811080105, AS SHOWN ON SURVEY RECORDED UNDER AUDITOR'S FILE NUMBER 201811050138, RECORDS OF KITSAP COUNTY, WASHINGTON, AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 88°37'35" WEST ALONG SAID SOUTH LINE, 584.94 FEET; THENCE NORTH 4 °37'31" EAST, 1324.57 FEET TO THE SOUTH LINE OF LOT 257 OF SAID BOUNDARY LINE ADJUSTMENT; THENCE SOUTH 88°37'12" EAST ALONG THE SOUTH LINE OF SAID LOT 257, A DISTANCE OF 343.77 FEET; THENCE NORTH 1°35'00" EAST, 554.75 FEET; THENCE NORTH 88 °25'00" WEST, 109.44; THENCE NORTH 1 °35'50" EAST, 237.50 FEET TO THE NORTH LINE OF SAID LOT 257; THENCE CONTINING NORTH 1°35'50" EAST, 160.99 FEET; THENCE NORTH 65 °45'14" EAST, 106.05 FEET TO THE BEGINNING OF A CURVE TO THE LEFT HAVING A RADIUS OF 280.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE 212.42 FEET, THROUGH A CENTRAL ANGLE OF 43°28'02"; THENCE NORTH 22°17'12" EAST, 125.69 FEET TO WEST LINE OF SAID BOUNDARY LINE ADJUSTMENT; THENCE SOUTH 1 °34'28" WEST ALONG SAID WEST LINE, 477.19 FEET TO THE NORTHEAST CORNER OF SAID LOT 257; THENCE CONTINUING SOUTH 1 °34'28" WEST ALONG THE LINE COMMON TO LOTS 25 THROUGH 41, INCLUSIVE, AND LOT 257 OF SAID BOUNDARY LINE ADJUSTMENT, 792.67 FEET TO THE SOUTHEAST CORNER OF SAID LOT 257; THENCE CONTINUING SOUTH 1°34'28" WEST ALONG THE WEST LINE OF SAID BOUNDARY LINE ADJUSTMENT, 1321.99 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS 961,152 SQUARE FEET, (22.07 ACRES) MORE OR LESS. JAMES C DEMPSEY, P.L.S. WASHINGTON STATE REGISTRATION NO. 41078 NLO Projects:\10133 Sterling Harbor Custom Homes-Werner Rd.-Survey, geotech & Planning\Legals\10133 REZONE AREA DESCRIPTION 10-18-19.doc Exhibit B for Ord No. 5391 Exhibit B for Ord No. 5391 Exhibit C of Ord No. 5391 Motion Move to approve the settlement of the claim by Spencer Berntsen consisting of paid administrative leave up to one year and cash payment as agreed upon in the Separation Agreement for total amount not to exceed $200,000 for both components. In addition, the City shall pay claimant's share of the cost of mediation in the amount of approximately $2,500. The Mayor is authorized to finalize and execute the Separation Agreement pursuant to these terms as approved by the City Attorney. December 11, 2019 Study Session Item C - Executive Session