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HomeMy WebLinkAbout05/12/2021 STUDY SESSION AGENDA PACKET______________________________________________________________ CITY COUNCIL 345 6th Street, Suite 100, Bremerton, WA 98337 Phone (360) 473-5280 WEDNESDAY, MAY 12, 2021 CITY COUNCIL STUDY SESSION AGENDA 5:00 PM – Via Zoom Webinar To help reduce the spread of COVID-19, the City Council is conducting a Study Session via Zoom Webinar. The Study Session is open to the public to listen in, but there will be no opportunities for input; no action is anticipated; and the content of these items is subject to change. If approved by the Council, these items will be placed on the May 19, 2021 City Council Virtual Meeting Agenda…  Members of the public are invited to join the Zoom webinar by clicking on the following link: https://us02web.zoom.us/j/89327857411?pwd=WG5MSjZFZ296NVJRQzBTWVZKZ3F4dz09  Or iPhone one-tap: US: +12532158782,,89327857411#,,,,*209823# or +16699006833,,89327857411#,,,,*209823#  Or Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 253 215 8782 or +1 669 900 6833 or +1 346 248 7799 or +1 929 205 6099 Webinar ID: 893 2785 7411 Passcode: 209823 Public questions or comments may be submitted ahead of time to City.Council@ci.bremerton.wa.us A. BRIEFINGS ON AGENDA BILL ITEMS 1. Ordinance amending the Bremerton Municipal Code relating to General Business Licenses to support transition to WA State BLS online applications 2. Public Works Agreement with Doolittle Construction, Inc. for the 2021 City Road Preservation Project 3. Local Agency Supplemental Agreement No. 2 with Skillings, Inc. for the Washington & 11th Roundabout Project 4. Professional Services Agreement with Barker Creek Consulting, LLC for Construction Management Services for Oyster Bay Beach Sewer Upgrades 5. Authorize 1 FTE Transportation Project Manager and 1 FTE Internal Services Manager for the Public Works & Utilities Department 6. Authorize 1 FTE Legal Assistant for Civil Division and Increase to 1 FTE Legal Assistant for Prosecution Division in the Legal Department 7. Professional Services Agreement w/Kitsap Law Group for Interim City Attorney Legal Services B. GENERAL COUNCIL BUSINESS o Audit Committee Monthly Briefing – Chair Leslie Daugs o Other General Council Business C. ADJOURNMENT OF STUDY SESSION AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Ordinance amending the Bremerton Municipal Code relating to General Business Licenses to support transition to WA State BLS online applications COUNCIL MEETING Date: May 19, 2021 Department: DCD Presenter: Andrea L. Spencer Phone: (360) 473-5283 SUMMARY: Starting in 2018 State law was changed by the Washington State Legislature with the passage of EHB 2005; this law requires that the cities with business licensing programs contract with either FileLocal or Washington State Business License Services (State BLS) for online license applications. In order to meet the requirements of State law the City entered into a contract with FileLocal in April 2018, and that contract ends on September 30, 2021. The City will not be renewing with FileLocal because we have found that this contract has not met our online licensing needs. In addition, prior to the execution of this contract, FileLocal shared with the City that it was anticipated that our annual contract costs would go down over time as other cities joined with their agency. Although other cities have joined FileLocal, our annual contract cost has remained at approximately $40,000. All recent indications from FileLocal about future annual fees appear to be remaining the same and not indicative of any large reductions. In order to continue to meet the requirements of State Law, Bremerton has contracted with State BLS for online business license applications, and the State BLS system will be live for Bremerton Businesses on July 15, 2021. In mid-May the City will be sending correspondence to all of our license holders to make them aware of the switch from FileLocal to State BLS and offer assistance for the transition. The State BLS will be responsible for the acceptance of all the City’s online business license applications, and they will transmit all license fees that they collect back to the City. The State will retain license fines and penalties, which are usually levied for such items as late payments. The City’s usual annual fines and penalties are estimated to be between $10,000 to $15,000. By changing from FileLocal to State BLS we anticipate an annual cost savings of $25,000 to $30,000. The proposed ordinance attached to this agenda bill makes modifications to the City’s licensing code to make the transition to the State BLS and other minor housekeeping modifications for code clarity. ATTACHMENTS: Proposed Ordinance FISCAL IMPACTS (Include Budgeted Amount): BMC changes have no fiscal impacts, however by switching from FileLocal to State BLS the City saves $25,000 to $30,000 annually. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. _______ to make modifications to the Bremerton Municipal Code provisions for general business licenses to support Washington State Business License Service (State BLS) online applications and other minor housekeeping changes for code clarity. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A1 Page 1 of 14 General Business License Revisions ORDINANCE NO. ________ AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending provisions of the Bremerton Municipal Code relating to general business licenses. WHEREAS, the City Council desires to amend Chapter 5.02 and sections of other chapters of the Bremerton Municipal Code to update provisions relating to general business licenses; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Subsection 3.48.030(e) of the Bremerton Municipal Code entitled "Definitions ‘E’" is hereby amended to read as follows: (e) Definitions "E": "Eligible gross receipts tax" means a tax which: (1) Is imposed on the act or privilege of engaging in business activities within BMC 3.48.050; and (2) Is measured by the gross volume of business, in terms of gross receipts and is not an income tax or value added tax; and (3) Is not, pursuant to law or custom, separately stated from the sales price; and (4) Is not a sales or use tax, business license fee, franchise fee, royalty or severance tax measured by volume or weight, or concession charge, or payment for the use and enjoyment of property, property right or a privilege; and (5) Is a tax imposed by a local jurisdiction, whether within or without the State of Washington, and not by a country, state, province, or any other nonlocal jurisdiction above the county level. "Engaging in business," "nexus." (1) The term "engaging in business" means commencing, conducting, or continuing in business and also the exercise of corporate or franchise powers, as well as liquidating a business when the liquidators thereof hold themselves out to the public as conducting such business. (2) This definition sets forth examples of activities that constitute engaging in business in the City and establishes safe harbors for certain of those activities so that a person who meets the criteria may engage in de minimis business activities in the City without having to register and obtain a business license or pay City business and occupation taxes. The activities listed in this definition are illustrative only and are not intended to narrow the definition of "engaging in business" in subsection (1) of this definition. If an activity is not listed, whether it constitutes engaging in business in the City shall be determined by considering all the facts and circumstances and applicable law. (3) Without being all-inclusive, any one (1) of the following activities conducted within the City by a person or its employee, agent, representative, independent Page 2 of 14 General Business License Revisions contractor, broker or another acting on its behalf constitutes engaging in business and requires a person to register and obtain a business license pursuant to Chapter 5.02 BMC: (a) Owning, renting, leasing, maintaining, or having the right to use, or using, tangible personal property, intangible personal property, or real property permanently or temporarily located in the City. (b) Owning, renting, leasing, using, or maintaining an office, place of business, or other establishment in the City. (c) Soliciting sales. (d) Making repairs or providing maintenance on service to real or tangible personal property, including warranty work and property maintenance. (e) Providing technical assistance or service, including quality control, product inspections, warranty work, or similar services on or in connection with tangible personal property sold by the person or on its behalf. (f) Installing, constructing, or supervising installation or construction of real or tangible personal property. (g) Soliciting, negotiating, or approving franchise, license, or other similar agreements. (h) Collecting current or delinquent accounts. (i) Picking up and transporting tangible personal property, solid waste, construction debris, or excavated materials. (j) Providing disinfecting and pest control services, employment and labor pool services, home nursing care, janitorial services, appraising, landscape architectural services, security system services, surveying, and real estate services, including the listing of homes and managing real property. (k) Rendering professional services such as those provided by accountants, architects, attorneys, auctioneers, consultants, engineers, professional athletes, barbers, baseball clubs and other sports organizations, chemists, psychologists, court reporters, dentists, doctors, detectives, laboratory operators, teachers, and veterinarians. (l) Meeting with customers or potential customers, even when no sales or orders are solicited at the meetings. (m) Training or recruiting employees, agents, representatives, independent contractors, brokers or others, domiciled or operating on a job in the City, acting on its behalf, or for customers or potential customers. (n) Investigating, resolving, or otherwise assisting in resolving customer complaints. (o) In-store stocking or manipulating products or goods, sold to and owned by a customer, regardless of where sale and delivery of the goods took place. (p) Except as provided in subsection (5) of this definition, delivering goods in vehicles owned, rented, leased, used, or maintained by the person or another acting on its behalf. (4) Not Engaging in Business. If a person, or its employee, agent, representative, independent contractor, broker or another acting on the person’s behalf, engages Page 3 of 14 General Business License Revisions in no other activities in or with the City but the following, that person is not engaging in business and therefore is not required to register and obtain a City business license pursuant to Chapter 5.02 BMC or pay City business and occupation taxes pursuant to this chapter: (a) Meeting with suppliers of goods and services as a customer. (b) Meeting with government representatives in their official capacity, other than those performing contracting or purchasing functions. (c) Attending meetings, such as board meetings, retreats, seminars, and conferences, or other meetings wherein the person does not provide training in connection with tangible personal property sold by the person or on its behalf. (d) Renting tangible or intangible property as a customer when the property is not used in the City. (e) Attending, but not participating in, a trade show or multiple vendor events. Persons participating at a trade show shall review the City’s trade show or multiple vendor event ordinances. (f) Conducting advertising through the mail. (g) Soliciting sales by phone from a location outside the City. (h) Providing language interpretive services to the Bremerton Municipal Court. (5) A business located outside the City merely delivering goods into the City by common carrier or other means, including use of its own vehicles, is not required to register and obtain a business license; provided, that it engages in no other business activities in the City. Such business activities do not include those in subsection (4) of this definition. (6) Threshold Exemption - Fee-Free License/Registration. To the extent set forth in this definition, the following persons and businesses shall be exempt from the registration, license and/or license fee requirements as follows: (a) Except as set forth in subsection (6)(b) of this definition, any person or business whose annual value of products, gross proceeds of sales, or gross income of the business in the City is equal to or less than two thousand dollars ($2,000) and who does not maintain a place of business within the City shall be exempt from the general business license requirements of Chapter 5.02 BMC and this chapter. (b) Any person or business operating as a utility provider subject to utility taxes pursuant to Chapter 3.50 BMC whose annual value of products, gross proceeds of sales, or gross income of the business in the City is equal to or less than two thousand dollars ($2,000) and who does not maintain a place of business within the City shall submit a business license registration to the Tax and Licensing Division. No license fee shall be assessed for the business license registration. (7) Nexus. A person has created nexus with the City if, whether by itself or by its employees, agents, representatives, independent contractors, brokers or others acting on its behalf, it: (a) Is physically present in the City; (b) Endeavors to maintain a share of the market within the City; or (c) Avails itself of the economic benefits of the City. Page 4 of 14 General Business License Revisions The City expressly intends that engaging in business includes any activity sufficient to establish nexus for purposes of applying the tax under the law and the Constitutions of the United States and the State of Washington. Nexus is presumed to continue as long as the taxpayer benefits from the activity that constituted the original nexus-generating contact or subsequent contacts. "Extracting" is the activity engaged in by an extractor and is reportable under the extracting classification. "Extractor" means every person who from the person’s own land or from the land of another under a right or license granted by lease or contract, either directly or by contracting with others for the necessary labor or mechanical services, for sale or for commercial or industrial use, mines, quarries, takes or produces coal, oil, natural gas, ore, stone, sand, gravel, clay, mineral or other natural resource product; or fells, cuts or takes timber, Christmas trees, other than plantation Christmas trees, or other natural products; or takes fish, or takes, cultivates, or raises shellfish, or other sea or inland water foods or products. "Extractor" does not include persons performing under contract the necessary labor or mechanical services for others; persons cultivating or raising fish entirely within confined rearing areas on the person’s own land or on land in which the person has a present right of possession; or persons who fell, cut, or take plantation Christmas trees from the person’s own land or from land in which the person has a present right of possession; or persons meeting the definition of "farmer." "Extractor for hire" means a person who performs under contract necessary labor or mechanical services for an extractor. SECTION 2. Subsection 3.48.090(1) of the Bremerton Municipal Code entitled “Nonprofit Corporations or Nonprofit Organizations” is amended to read as follows: (1) Nonprofit Corporations or Nonprofit Organizations. This section chapter shall not apply to nonprofit organizations exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as currently enacted and as hereafter amended, except with respect to retail sales of such persons which are not exempt from this chapter. SECTION 3. Section 5.03.040 of the Bremerton Municipal Code entitled “License Required – Applications” is hereby amended to read as follows: 5.03.040 LICENSE REQUIRED - APPLICATIONS. The provisions of this chapter shall apply whenever a regulatory license is required by a chapter in this title. Such regulatory licenses are separate from and in addition to the general business license issued under Chapter 5.02 BMC, which may also be required when applicable. The regulatory licensee shall be the person or entity who owns the business. Where the license applicant is a corporation, the term "applicant" shall include principal officers and managers. Where the license applicant is a partnership, the term "applicant" shall include principal partners and managers. Applications shall be filed with the Tax and Licensing Division. Each applicant shall provide, at a minimum, the following information: (a) True name and any assumed names or aliases used. (b) Home address and telephone number. (c) Sex, weight, height, color of eyes and hair. (d) Date of birth. Page 5 of 14 General Business License Revisions (e) A copy of applicant’s identification which must include some form of picture identification, i.e., a driver’s license or Washington State identification card. (f) The business occupation and/or employment history of the applicant for the five (5) years immediately preceding the date of application. (g) Residence address(es) of the applicant for the five (5) years preceding the date of application. (h) The business name, business address, and telephone number of the proposed business. (i) A listing and explanation of all services to be provided. (j) A description of any other business activity to be conducted on the premises or adjoining premises owned and controlled by the applicant. (k) The principal enterprise of the business if different from the activity being licensed. (l) Whether the applicant has ever been convicted, forfeited bail, or pled guilty to any crime, excluding minor traffic offenses. If so, state the charge and the nature of the crime, the name and location of the convicting court and the disposition thereof. (m) Written declaration by the applicant under penalty of perjury, that the foregoing information contained in the application is true and correct, said declaration being duly stated and signed. (n) Such other relevant identification and information necessary as the Director may reasonably require to discover the truth of statements made in the application. (o) Authorization for the City, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the applicant for the license. SECTION 4. Section 5.06.030 of the Bremerton Municipal Code entitled “Registration and Declaration Required” is hereby amended to read as follows: 5.06.030 REGISTRATION AND DECLARATION REQUIRED. (a) Registration and Declaration of Compliance. Any landlord renting or making available for rent any "dwelling unit" as defined in BMC 5.06.020 that requires a general business license pursuant to Chapter 5.02 BMC shall annually with the general business license application or renewal: (1) Register each dwelling unit; (2) Provide the City with the landlord’s name and contact information; (3) Provide the City with the name and contact information of any person designated by the landlord as an alternate contact or as a representative of the landlord responsible for the management of the rental property (optional); (4) Provide an email or mailing address or other method of contact as approved by the Bremerton Police Department for participation in the Department’s landlord notification program for notice of police activity on the rental property; and (5) File with and as part of the registration a declaration of compliance as defined in BMC 5.06.020 that each dwelling unit complies with RCW 59.18.060 of the Landlord-Tenant Act and does not present conditions that endanger or impair the health or safety of the tenants. Page 6 of 14 General Business License Revisions (b) Any general business license applications required pursuant to Chapter 5.02 BMC for rental properties pursuant to this chapter shall be included and processed in conjunction with the rental property registration applications. (bc) Conditions of Issuance. Issuance of the general business license shall require: (1) Registration of dwelling units and providing the landlord’s name and contact information as required in subsection (a) of this section; (2) Submission of a declaration of compliance as required in subsection (a) of this section or, as applicable, submission of certificate of inspection if required by BMC 5.06.040; (3) Payment of applicable fees; and (4) Compliance with this chapter. (cd) Revocation or Denial. Any general business license issued under Chapter 5.02 BMC may be revoked or denied for any violation of this chapter by the licensee or his or her agents or employees pursuant to BMC 5.02.180. SECTION 5. Section 5.16.020 of the Bremerton Municipal Code entitled “License – Required” is hereby amended to read as follows: 5.16.020 LICENSE - REQUIRED. It is unlawful to engage in business as a peddler or mobile food vendor in the City without first obtaining a regulatory license, as required by this chapter, in addition to a general business license issued under Chapter 5.02 BMC. It is unlawful to engage in business as a temporary merchant without first obtaining a regulatory license. A temporary merchant regulatory license shall be issued in lieu of a business license and licensee shall be exempt from payment of City business and occupation taxes. Applications for regulatory licenses shall be filed with the Tax and License Division of the Department of Community Development. SECTION 6. Section 5.17.020 of the Bremerton Municipal Code entitled “License Required” is hereby amended to read as follows: 5.17.020 LICENSE REQUIRED. It shall be unlawful for any charitable organization, its members or employees, to solicit, collect or receive contributions in the City of Bremerton without first obtaining a regulatory "charity solicitation license." This license is separate from the City general business license issued under Chapter 5.02.BMC, which may also be required when applicable. It shall be unlawful for any professional fund raiser to solicit, collect or receive contributions in the City where it is represented that the proceeds of such solicitations or any part thereof are to be used for a charitable purpose without first obtaining a regulatory "professional fund raiser license" in addition to a City general business license issued under Chapter 5.02.BMC. Applications for regulatory licenses shall be filed with the Tax and License Division of the Department of Community Development. Page 7 of 14 General Business License Revisions SECTION 7. Section 5.22.010 of the Bremerton Municipal Code entitled “License – Required” is hereby amended to read as follows: 5.22.010 LICENSE - REQUIRED. It is unlawful for any person, firm, or corporation to conduct any public dance to which the general public is admitted without first having obtained a regulatory license in addition to a general business license issued under Chapter 5.02 BMC. Applications for regulatory licenses shall be filed with the Tax and License Division of the Department of Community Development. SECTION 8. Section 5.36.010 of the Bremerton Municipal Code entitled “License-Required” is hereby amended to read as follows: 5.36.010 LICENSE - REQUIRED. No person, firm, company, or corporation shall run, manage, operate, or conduct any circus, parade, carnival games/rides, street fairs, sidewalk sales, or other promotional activity within the City without first obtaining a regulatory license in addition to a general business license issued under Chapter 5.02 BMC. Applications for regulatory licenses shall be filed with the Tax and License Division of the Department of Community Development. SECTION 9. Section 5.96.050 of the Bremerton Municipal Code entitled “License – Required” is hereby amended to read as follows: 5.96.050 LICENSE - REQUIRED. It shall be unlawful to operate, maintain, or manage an erotic dance studio without first obtaining a regulatory license from the City in addition to a general business license issued under Chapter 5.02.BMC. Applications for regulatory licenses shall be filed with the Tax and License Division. SECTION 10. Section 20.46.030 of the Bremerton Municipal Code entitled “Home Occupations” is hereby by amended to read as follows: 20.46.030 HOME OCCUPATIONS. Home occupations are permitted in a residential dwelling unit subject to the following limitations: (a) The business shall clearly be subordinate to the use of the dwelling unit for residential purposes. (b) The business shall be wholly situated indoors. (c) No person shall be employed in the home occupation unless a resident of the dwelling unit. (d) There shall be no exterior display, storage or other exterior indication of the existence of the home occupation, except as allowed by the underlying zone. (e) One (1) additional off-street parking space shall be provided in addition to the number of off-street parking spaces already required for the dwelling. The Director may waive this requirement if the home occupation involves Internet services that do not require customers or deliveries at the residence. Page 8 of 14 General Business License Revisions (f) Any sales of product shall be limited to those produced on the premises, except products produced elsewhere may be allowed, provided the business is primarily involved in the product’s distribution and does not attract buyers to the property for retail or wholesale sales. (g) Sales and services to patrons shall be arranged through appointment so that only one (1) patron vehicle is on the premises at any given time. (h) Not more than fifty (50) percent of the gross floor area of the dwelling may be devoted to the home occupation use. (i) The garage shall not be used in the business unless the required off-street and customer parking can be adequately accommodated elsewhere on the site. (j) An independent taxi driver may operate as a home occupation; provided, that the business has only one (1) single driver and one (1) taxi vehicle. (k) Automotive painting, body, and engine repair, small engine repair services and any activity likely to produce excessive noise are prohibited as home occupations. (l) The home occupation business must acquire and maintain a general business licenses issued under Chapter 5.02 BMC. (lm) Persons engaged in legal home occupations on the effective date of the ordinance codified in this chapter shall be considered legal, provided the operation is consistent with all of the above-listed performance standards. Any home occupation which was legally established but does not currently conform to all those standards may not expand or enlarge and shall terminate that use upon: (1) Change of use or ownership of the property; or (2) Written complaint of adjacent or nearby property owners after due notice and hearing is provided and if the Director determines that the home occupation is interfering with the use and enjoyment of the neighboring premises and is not compatible with the residential environment in which it is located. SECTION 11. Chapter 5.02 of the Bremerton Municipal Code entitled "General Business Licenses" is hereby amended to read as follows: Chapter 5.02 GENERAL BUSINESS LICENSES 5.02.010 TITLE. This chapter shall constitute the business license code of the city City and may be cited as such. 5.02.020 POWER TO LICENSE FOR REGULATION AND/OR REVENUE. This chapter is adopted by the city, exercising its power authorized under general law to license for the privilege of engaging in business in the City and revoke the license for cause, to regulate, make inspections and to impose excises for revenue or regulation in regard to all places and kinds of businesses, occupations, trades, professions and any other lawful activity, as such power is described in the RCW 35.22.280(32). The provisions of this chapter shall be liberally construed for the accomplishment of such purposes. Page 9 of 14 General Business License Revisions 5.02.030 ADMINISTRATIVE PROVISIONS. The provisions contained in Chapter 3.86 BMC shall be fully applicable to the provisions of this chapter except as expressly stated to the contrary herein. 5.02.040 DEFINITIONS. For the purposes of this chapter, the definitions set forth in Chapter BMC 3.48.030 BMC, as currently enacted and as hereafter amended, shall apply to this chapter as applicable. In addition, the following definitions will apply: "Ancillary rental" means (1) the renting and/or leasing of real property by a person as secondary to the primary business use by said person for which a business license is issued pursuant to this chapter, or (2) the renting or leasing of a single portion of a residence that is within the structure of the primary residence of the landlord, such as the renting of a single bedroom; this does not include a separate or secondary dwelling unit which includes all accessory dwelling units. “Business Licensing Service” and “BLS” mean the office within the Washington State Department of Revenue providing general business licensing services to the City "Casual rental" means the renting of the primary residence of the landlord for a period of four (4) months or less in any given calendar year. "Engaging in business" shall also include the renting and/or leasing of real property except for casual rentals or ancillary rentals. "License to use" means a personal privilege to do some particular act or series of acts on real property without possessing any estate or interest therein. "Possessory interest" means the right to exert control over specific real property, or a portion thereof, to the exclusion of others. "Renting and/or leasing of real property" means the creation of a possessory interest in residential, commercial and/or industrial real property of another party by lease, sublease, expressed or implied rental agreement, or tenancy from period to period, for the purpose of gain, and includes leases or rentals in mixed use structures. The renting and/or leasing of real property does not include the license to use real property. 5.02.050 ADMINISTRATION AND ENFORCEMENT. (a) The Director of Community Development, or designee, shall have general charge of, and supervision over, the administration and enforcement of this chapter and shall exercise such power and perform all the duties imposed upon him or her. (b) Applicant shall, upon reasonable request, provide or allow the Director to inspect relevant documentation of any licensee for verification of the information provided by applicant/licensee on the business license application. (c) The Director may establish administrative rules and regulations as deemed appropriate, consistent with this chapter for the purpose of enforcing and carrying out its provisions. 5.02.060 GENERAL BUSINESS LICENSE REQUIRED. Any person who "engages in business" activities in the City as this term is defined in Chapter 3.48 BMC and this chapter shall first obtain a general business license for the current calendar year or unexpired portion thereof, and pay the fees prescribed in this chapter. Applications for general business licenses shall be filed with the Tax and Licensing Page 10 of 14 General Business License Revisions Divisionmust be submitted to the Business Licensing Service. Any general business license application required for rental property registrations pursuant to Chapter 5.06 BMC shall be included and processed in conjunction with the rental property registration applications. 5.02.070 SEPARATE GENERAL BUSINESS LICENSE REQUIRED. A separate license shall be obtained for each physical branch, establishment or location at which the business related activity is carried on,. and each Each license shall authorizes the licensee to carry on, pursue or conduct only that business, or business enterprise at that location. A separate license is required for each distinct business activity type regardless if conducted by the same person at the same location, provided, shall a separate license will not be required for a business activity determined by the Director to be an accessory activity to a branch, establishment or location for which a license is issued. A separate license shall not be required for the renting and/or leasing of real property in multiple locations which shall be considered a single business encompassing all rental or leased units in the city by a single owner. 5.02.080 LICENSES NOT TRANSFERABLE. No The general business license issued under the provisions of this chapter shall beis not transferable or assignable. unless otherwise specifically provided for herein. A license may be transferred 1) when a business changes its structure which does not result in a substantial change of ownership or, 2) when there is no substantial change in the type of business operated. A new license shall beis required when a business changes its structure, the place of a business location within the City is changed, there is a substantial change of ownership of a business or there is a substantial change in the type of business operated. 5.02.090 LICENSE TO BE POSTED. All licenses issued pursuant to this chapter shall must be posted in a conspicuous place at such the location for which it was issued. No person to whom a license has been issued pursuant to this chapter shall may allow any person for whom a separate license is required, to operate under or to display such license, nor shall may such other person operate under or display such license. 5.02.100 DISCLAIMER OF CITY LIABILITY. Issuance of a license pursuant to this chapter does not constitute the creation of a duty by the city to indemnify the licensee for any wrongful acts against the public, or to guarantee the quality of goods, services or expertise of a licensee. The issuance of a license does not shift responsibility from the licensee to the city for proper training, conduct or equipment of the licensee or his agents, employees or representatives, even if specific regulations require standards of training, conduct or inspection. 5.02.110 GENERAL QUALIFICATIONS OF LICENSEES. (a) No license shall be issued, nor shall any license be renewed, pursuant to the provisions of this chapter to: (1) An applicant who is not eighteen (18) years of age at the time of application; (2) An applicant who has had a similar license denied or revoked pursuant to BMC 5.02.180; (3) An applicant who shall not first comply with the general laws of the state; or Page 11 of 14 General Business License Revisions (4) An applicant who seeks such a license in order to practice some illegal act or some act injurious to the public health or safety. 5.02.120 APPLICATION PROCEDURE, LICENSE FEE. (a) The business owner shall make aThe business license issued under this chapter must be obtained prior to commencing business in the City. Application for any a business license required under this chapter is made through the Business Licensing Service, and must include all information required for all licenses requested, the total fees due for all licenses, and the application handling fee required by RCW 19.02.075.to the Director on a form prepared by the department, which application shall be accompanied by a receipt from the department showing payment of the required fee. Business licenses shall be granted annually. The license application fee will be reduced by one-half of the fee for applications received for businesses which begin operation between July 1st to December 31st of the calendar year for which the license is to be issued and is nonrefundable whether or not the license application is later denied. (b) The City’s fee for a business licensee shall be as set forth in Chapter 3.01 BMC as currently enacted and as hereinafter amended. 5.02.130 APPROVAL AND ISSUANCE OF BUSINESS LICENSE. All licenses approved for issuance by the Director shall be conditioned upon compliance at all times with all applicable ordinances, regulations and statutes of the city and the state. Upon issuance, the license shall will be valid until the expiration date established by the Business Licensing Service as long as the licensee continues in business and pays the city license fee and occupation tax due pursuant to the provisions of this chapter and chapters 3.48 BMC and 3.86 BMC. and shall continue to be valid until the expiration date, which will be December 31st of any given year. The license shall be in addition to any other license required under any law or ordinance of the City. Issuance of a business license does not imply compliance with other City codes. 5.02.140 RENEWAL. The business license issued under the provisions of this chapter expires on the date established by the Business Licensing Service (BLS) and must be renewed on or before that date to continue to engage in business in the city after that date.The Director shall mail the forms for business license renewals to business enterprises in the city to the last address provided to the Director by the licensee. Failure of the business enterprise to receive any such form shall not excuse the business enterprise from making application for and securing the required license or renewal, or for payment of the license fee when and as due hereunder. (a) Application for renewal of the business license is made through the BLS, and must include all information required for each license being renewed, the total fees due for all licenses, and the renewal application handling fee required by RCW 19.02.075. (b) The license term and respective fee amount may be prorated as needed to synchronize the license expiration with that of the business license account maintained by the BLS. (c) Failure to complete the license renewal by the expiration date will incur the late renewal penalty required bypursuant to RCW 19.02.085 and as set forth in Chapter 3.01 BMC in addition to all other fees due. (d) Failure to complete the license renewal within 120 days after expiration will result in the cancellation of the license and will require applying for a new license as provided for in this Page 12 of 14 General Business License Revisions chapter in order to engage in business in the City. Business may not continue until the new license has been approved by the city. The City may require payment of all past due amounts and any applicable city penalties prior to approving the new license. 5.02.150 APPLICATION AS PUBLIC RECORD. General business license applications and related business licensing information are subject to applicable controls and restrictions found in RCW 19.02.115.made to the Director pursuant to this chapter shall be public information subject to inspection by all persons except to the extent those records may be deemed to be private or would result in unfair competitive disadvantage to such business enterprise if disclosed, all as more particularly described in Chapter 42.17 RCW. 5.02.160 NONPAYMENT OF BUSINESS LICENSE FEE. All City license fees unpaid under this chapter when due and all interest and penalties imposed by the City thereon, shall constitute a debt to the City and may be collected with any taxes owed and in the same manner as unpaid taxes under chapters 3.48 BMC and 3.86 BMC. 5.02.170 GROUNDS FOR DENIAL OR REVOCATION OF LICENSE. (a) In addition to the other penalties provided by law, any business license issued under the provisions of this chapter may be denied or revoked pursuant to the provisions of this chapter at any time, where: (1) The license was procured by fraud, false representation or material omission of fact, or for the violation of or failure to comply with any of the provisions of this chapter by the person holding such license, or any of his servants, agents or employees, while acting within the scope of their employment; or (2) The licensee or employee of the licensee violates any of the provisions of this chapter or any applicable city, state or federal law, including, but not limited to Chapters 3.48, 3.50 and 3.86 BMC, or the purpose for which the license was issued is being abused to the detriment of the public, or such license is being used for a purpose different from that for which it was issued. (3) The licensee submits a false or fraudulent City tax return or makes a false statement on any City tax return. (4) The licensee fails to pay any license fee or tax to the city when due including, but not limited to any taxes pursuant to Title 3 BMC. (5) The licensee or employee has been convicted of a crime involving the business. 5.02.180 DENIAL AND REVOCATION - PROCEDURE. (a) Any application for the issuance or renewal of a license issued under this chapter may be denied, or any license issued under this chapter may be revoked based on one or more of the grounds set forth in BMC 5.02.170. (b) The Director shall have the power and authority to deny the issuance of or revoke any license issued under the provisions of this chapter. The Director shall notify such licensee in writing by certified mail or personal service of the denial or revocation of his or her license application or license and the grounds therefore. Page 13 of 14 General Business License Revisions (c) Any applicant or licensee may, within fourteen (14) calendar days from the date that the denial or revocation notice was mailed to the applicant or licensee, appeal from such denial or revocation by filing a written notice of appeal setting forth the grounds therefore with the Administrative Hearing Examiner pursuant to Chapter 2.13 BMC. A filing fee as set forth in chapter Chapter 3.01 BMC shall be submitted with the appeal, which filing fee is required to process the appeal. The hearing shall be conducted in accordance with the procedures for hearing contested cases set out in Chapter 2.13 BMC. After the hearing thereon the Administrative Hearing Examiner shall, after appropriate findings of fact, and conclusions of law, affirm, modify, or overrule the denial or revocation and order issuance or reinstatement of the license, and may impose any terms thereupon. (d) No renewal or revocation of a license issued pursuant to the provisions of this chapter shall take effect until fourteen (14) calendar days after service of the notice thereof by the Director, and if the appeal is timely filed, the renewal or revocation shall be stayed pending final action by the Administrative Hearing Examiner. All licenses which are revoked shall be surrendered to the City on the effective date of such revocation. (e) The decision of the Administrative Hearing Examiner shall be final. The applicant or licensee and/or the City may seek review of the decision by the Superior Court of Washington in and for Kitsap County within twenty-one (21) calendar days from the date of the decision. If review is sought as herein prescribed the renewal or revocation shall be stayed pending final action by the Superior Court. (f) When revoked, the license shall be canceled and immediately surrendered to the Director. Upon revocation of any license as provided in this chapter no portion of the license fee shall be returned to the licensee. (g) Upon denial or revocation, the person whose application was denied or license revoked shall not be granted a license for a business, upon any new application that may be made, for a period of ninety (90) calendar days from date of denial or revocation and further, no license shall be issued until such person cures any defaults that resulted in the denial or revocation. 5.02.190 UNLAWFUL - VIOLATIONS AND PENALTIES. (a) It shall be unlawful: (1) For any person to engage in business without having obtained a business license or for a person to engage in business after denial of a business license application or renewal or after revocation of a business license. (2) For the president, vice-president, secretary, treasurer, or other officer of any company to engage in business without having obtained a business license or for a person to engage in business after denial of a business license application or renewal or after revocation of a business license. (3) For any person to violate any provision of this chapter. (b) Non-payment penalty. Failure In addition to any other applicable penalty provided for in this chapter, failure to pay the City license fee prior to engaging in business in the City, or otherwise within ninety (90) days after the date of expirationsuch payment is due, pursuant to BMC 5.02.120, shall may subject the licensee to a monetary penalty imposed directly by the City in the amount of fifty dollars ($50) or as otherwise amended as set forth in Chapter 3.01 BMC to reinstate the license, in addition to the required license fee. Page 14 of 14 General Business License Revisions (c) Civil penalties. In addition to any violation set forth in Chapter 3.86 relating to the administration of this chapter, any violation of BMC 5.02.190(a) constitutes a civil violation under chapter 1.04 BMC for which a monetary penalty may be assessed and enforcement may be required as provided therein. (d) Criminal penalties. In addition to the foregoing penalties or any violation set forth in Chapter 3.86 relating to the administration of this chapter, any person who violates or fails to comply with BMC 5.02.190(a) shall, upon conviction, be punished as described in the general criminal penalty provisions of BMC 1.12.020(2). Such person will be guilty of this violation for each day, or portion thereof, during which the business is so engaged or carried on. SECTION 12. 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 13. 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 14. 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 ____________________, 2021. _________________________________ KEVIN GORMAN, Council President Approved this ________ day of ________________________, 2021. _________________________________ GREG WHEELER, Mayor ATTEST: APPROVED AS TO FORM: __________________________________ _________________________________ ANGELA HOOVER, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the ________ day of ______________________, 2021. EFFECTIVE the ________ day of ______________________, 2021. ORDINANCE NO. ________. R:\Legal\Legal\Ordinances\Community Development \2021.04.02 General Business License Code Revisions - Final.docx AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Public Works Agreement with Doolittle Construction, Inc. for the 2021 City Road Preservation Project COUNCIL MEETING Date: May 19, 2021 Department: Engineering Presenter: Andrea Archer-Parsons Phone: (360) 473-2317 SUMMARY: The City advertised the 2021 City Road Preservation Project and three bids were opened on April 30, 2021. Doolittle Construction, LLC is the lowest, responsive, responsible bidder with their bid of $439,768.40, including sales tax. The project provides for chip sealing, slurry sealing, and micro-sealing multiple locations around the City of Bremerton. ATTACHMENTS: 1) Site Plan; 2) Bid Tabulation 3) Contract FISCAL IMPACTS (Include Budgeted Amount): The project is budgeted at $500,000 in the 2021 Streets Fund. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to award contract to Doolittle Construction, Inc. for the 2021 City Road Preservation Project in the amount of $439,768.40; 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 A2 PUBLIC WORKS AGREEMENT – Page 1 of 8 2021 City Road Preservation Project Project # 6016 PUBLIC WORKS AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation (“City”), and Doolittle Construction, LLC (“Contractor”), whose mailing address is 1900 118th Ave. S.E., Bellevue, WA 98005. The parties agree as follows: 1. CONTRACTOR SERVICES. The Contractor shall perform the following services for the City: as described in the Bid Documents titled ‘2021 CITY ROAD PRESERVATION PROJECT.’ 2. TIME OF COMPLETION. Contractor shall complete the work within 45 working 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 $439,768.40. Applicable Washington State Retail Sales Tax on this contract shall be governed by WAC 458-20-171 and its related rules for the work 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. 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 PUBLIC WORKS AGREEMENT – Page 2 of 8 2021 City Road Preservation Project Project # 6016 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. D. The Contractor’s persistent disregard of federal, state or local 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 PUBLIC WORKS AGREEMENT – Page 3 of 8 2021 City Road Preservation Project Project # 6016 provisions. The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached. 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. 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, PUBLIC WORKS AGREEMENT – Page 4 of 8 2021 City Road Preservation Project Project # 6016 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 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 Cit y 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 PUBLIC WORKS AGREEMENT – Page 5 of 8 2021 City Road Preservation Project Project # 6016 defects are corrected, the warranty for that portion of the work shall extend for one year from 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 incurre d 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. 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: A. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and B. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence PUBLIC WORKS AGREEMENT – Page 6 of 8 2021 City Road Preservation Project Project # 6016 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 C. Excess Liability insurance with limits not less than $1,000,000 per occurrence and aggregate; and B. Workers Compensation insurance as statutorily required by the Industrial Insurance Act of the State of Washington, Title 51, Revised Code of Washington and employer's liability with limits not less than $1,000,000. 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 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. Equal Employment Opportunity Statement. In the hiring of employees for the performance of work under this Agreement, the Contractor, its subcontractors, or any person acting on behalf of Contractor shall not discriminate in any employment practice on the basis of age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military status, or the presence of any physical, mental or sensory disability. B. ADA Statement. The City of Bremerton does not discriminate on the basis of disability in programs and activities, which it operates pursuant to the requirements of the Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to PUBLIC WORKS AGREEMENT – Page 7 of 8 2021 City Road Preservation Project Project # 6016 both employment and admission to participation in the programs, services and activities of the City of Bremerton. Reasonable accommodation for employees or applicants for employment will be provided. C. 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. D. 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. E. 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 F. 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. G. 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. H. 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. I. Assignment. Any assignment of this agreement by the Contractor without the written consent of the City shall be void. J. 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. K. 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 PUBLIC WORKS AGREEMENT – Page 8 of 8 2021 City Road Preservation Project Project # 6016 of the remaining portion of this agreement and the remainder shall remain in full force and effect. 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. CONTRACTOR 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: Doolittle Construction, LLC Andrea Archer-Parsons, P.E. 1900 118th Ave. S.E. 345 6th Street, Suite 100 Bellevue, WA 98005 Bremerton, WA 98337 (360) 473-2317 (360) 473-5270 (facsimile) APPROVED AS TO FORM: ATTEST: Roger A. Lubovich Angela Hoover, City Clerk Bremerton City Attorney PUBLIC WORKS AGREEMENT – Page 9 of 9 2021 City Road Preservation Project Project # 6016 THIS PAGE LEFT INTENTIONALLY BLANK AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Local Agency Supplemental Agreement No. 2 with Skillings, Inc. for the Washington & 11th Roundabout Project COUNCIL MEETING Date: May 19, 2021 Department: Engineering Presenter: Andrea Archer-Parsons Phone: (360) 473-2317 SUMMARY: In November 2019, the City executed a contract with Skillings, Inc. for the design of the Washington and 11th Roundabout Project in the amount of $530,000. One no cost supplemental agreement has been executed to reallocate work from a subconsultant to Skillings. This proposed Supplement No. 2 increases the contract value by $130,882.99 for a new total of $660,882.99 to accommodate additional design work. The design work includes replacement of lower sidewalks on Washington Avenue between the Manette Bridge and 11th Street Place, and replacement two water main crossings within 11th Street at Pleasant Avenue and Highland Avenue. ATTACHMENTS: 1) Local Agency Supplement No. 2 with Skillings, Inc.; 2) Vicinity Map FISCAL IMPACTS (Include Budgeted Amount): The project is in Transportation Projects Fund, no budget adjustment is required. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve Supplement No. 2 with Skillings, Inc. for the Washington and 11th Roundabout 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 A3 Supplemental Agreement Number Organization and Address Phone: Original Agreement Number Project Number Execution Date Completion Date Project Title New Maximum Amount Payable Description of Work The Local Agency of desires to supplement the agreement entered in to with and executed on and identified as Agreement No. All provisions in the basic agreement remain in effect except as expressly modified by this supplement. The changes to the agreement are described as follows: I Section 1, SCOPE OF WORK, is hereby changed to read: II Section IV, TIME FOR BEGINNING AND COMPLETION, is amended to change the number of calendar days for completion of the work to read: III Section V, PAYMENT, shall be amended as follows: as set forth in the attached Exhibit A, and by this reference made a part of this supplement. If you concur with this supplement and agree to the changes as stated above, please sign in the Appropriate spaces below and return to this office for final action. By: By: Consultant Signature Approving Authority Signature Date DOT Form 140-063 Revised 09/2005 2 Skillings, Inc. 5016 Lacey Blvd. SE Lacey, WA 98503 360-491-3399 LA 9630 STPUL-9918(017)November 26, 2019 December 31, 2022 Washington & 11th Improvements Project $ 660,882.99 This project will design and construct a roundabout in the intersection of Washington Avenue and the Manette Bridge, and will include full street reconstruction (including sidewalks and bike lanes) on 11th Street and Washington Avenue between the new roundabout and Pacific Avenue. City of Bremerton Skillings, Inc. 11/26/2019 315026 See Exhibit A Attached. No Change See Exhibit D-2 Attached. Thomas Skillings, P.E., Skillings, Inc.Greg Wheeler, Mayor LOCATIONPROJECT11TH STREET WASHINGTON AVENUEHIGHLAND AVENUEPLEASANT AVENUE1"=100'SHEETVERT.HORIZ.SCALEBYDATENO.CITY OF BREMERTONREVISIONSDESCRIPTIONDEPARTMENT OF PUBLIC WORKS & UTILITIESCAD FILE:ENGINEERING DIVISIONIF NOT SCALE ACCORDINGLYTWO INCHES AT FULL SCALE1"02"PN: DESC 11TH ST & WASHINGTON AVEVICINITY MAPAMENDMENT 211LOWER SIDEWALK WORK (STREET & SEWER FUNDED)WATER MAIN REPLACEMENT(WATER FUNDED) AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Professional Services Agreement with Barker Creek Consulting, LLC for Construction Management Services for Oyster Bay Beach Sewer Upgrades COUNCIL MEETING Date: May 19, 2021 Department: Engineering Presenter: Bill Davis Phone: (360) 473-2312 SUMMARY: The City of Bremerton requested proposals from four (4) qualified firms on the Municipal Research and Services Center (MRSC) consultant roster to provide construction management services for the project Oyster Bay Beach Sewer Upgrades. Only one proposal was received. The proposal was reviewed and services were accepted. A fee for $262,355 was negotiated. Barker Creek Consulting previously assisted the City in 2015 for the Washington Avenue Sewer project, which is similar in nature to the current project. ATTACHMENTS: 1. Professional Services Agreement with Exhibits A, B, C and D FISCAL IMPACTS (Include Budgeted Amount): This project is included in the 2021 Wastewater Capital Budget and is partially funded by a Department of Ecology Clean Water State Revolving Fund loan. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Professional Services Agreement with Barker Creek Consulting LLC to provide construction management services for Oyster Bay Beach Sewer Upgrades in the amount of $262,355; 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 A4 City of Bremerton/Barker Creek Consulting, LLC Page 1 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 PROFESSIONAL SERVICES AGREEMENT Construction Management Services for Oyster Bay Beach Sewer Upgrades The City of Bremerton (“City”) and Barker Creek Consulting, LLC (“Consultant”), referred to collectively as the “Parties,” enter into the following Agreement for professional services: I.Scope: The Consultant agrees to perform the services more specifically described in the Scope of Work, dated April 21, 2021, including any attachments thereto, attached hereto as Exhibit A, which is incorporated by reference herein. The Scope of Work may be modified only pursuant to Section VII.H of this Agreement. If the Scope of Work provides for unspecified additional services such services shall only be performed upon the express written request of the City. Consultant further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices in effect at the time such services are performed. II.Term: The City and the Consultant agree that work will begin on the tasks described in Exhibit A immediately upon execution of this Agreement. The parties agree that the work described in Exhibit A is to be completed as provided for in the work schedule attached hereto as Exhibit B; provided however, that additional time shall be granted by the City for excusable delays or extra work as provided for in Section IX.A of this agreement. III.Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Consultant in an amount not to exceed $262,355. Consultant’s charges and bills shall conform to the fee schedule attached hereto as Exhibit C and incorporated herein by this reference. The Consultant shall submit regular billing statements detailing work performed and amount charged on each task or portion thereof. The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a conforming billing statement, the City shall promptly process payment. PROVIDED, HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks under the time frame set forth in Section II herein. The Consultant's labor rates and billing fees shall be as delineated in Exhibit C. Consultant shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement. Consultant shall only be compensated for additional services if requested pursuant to Section I and, if not otherwise provided, such compensation shall be in accordance with Exhibit C. If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance. Such withholding does not relieve Consultant of its obligations under this Agreement. City of Bremerton/Barker Creek Consulting, LLC Page 2 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 IV.Relationship of Parties: Consultant represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. Consultant and its personnel are independent Consultants and not employees of the City. Consultant and its personnel have no authority to bind the City or to control the City’s employees and other Consultants. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-consultants of the Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-consultants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent Consultants to perform the same or similar work. As an independent Consultant, Consultant is responsible for its own management. The City’s administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Consultant or its personnel. As an independent Consultant, Consultant is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Consultant. V.Indemnification: A.Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this Agreement except for that portion of the injuries and damages caused by the City’s sole negligence, unless Consultant is conducting work pursuant to Subsection B below. The City's review or acceptance of any of the work when completed shall not be grounds to avoid any of these covenants of indemnification. B.Architects, Engineers and Any Other Professional Listed In and Performing Services Defined in RCW 4.24.115. Should a court of competent jurisdiction determine that Consultant’s services provided pursuant to this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE City of Bremerton/Barker Creek Consulting, LLC Page 3 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. VI.Insurance: The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees, sub-consultants or sub-contractors. Before beginning work on the project described in this Agreement, the Consultant 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 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) if applicable; and 3.Professional Liability insurance with limits no less than $1,000,000 limit per occurrence/claim; and 4. Workers Compensation insurance as statutorily required by the Industrial Insurance Act of the State of Washington, Title 51, Revised Code of Washington and employer's liability with limits not less than $1,000,000. Any payment of deductible or self-insured retention shall be the sole responsibility of the Consultant. All required policies shall be provided on an “occurrence” basis except professional liability insurance (if required), which may be provided on a “claims-made” basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements. The Consultant's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. City of Bremerton/Barker Creek Consulting, LLC Page 4 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 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 cancellation, suspension or substantive change of any insurance policy set out herein, and failure to do so shall be construed to be a breach of this Agreement. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. In the event that the Consultant employs other consultants or contractors (sub-consultants or sub-contractors) as part of the work covered by this Agreement, it shall be the Consultant’s responsibility to require and confirm that each sub-consultant or sub-contractor meets the minimum insurance requirements specified above. The Consultant shall, upon demand of the City, deliver to the City copies of such policy or policies of insurance and the receipts for payment of premiums thereon. VII. General Conditions: A. Reports and Information: When requested by the City, Consultant shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form requested. Consultant shall maintain accounting records in accordance with Generally Accepted Accounting Principles (“GAAP”) to substantiate all billed amounts. B. Ownership and Use of Records and Documents: Original documents, drawings, designs and reports, including those in electronic format, developed under this Agreement are the property of the City. All written information submitted by the City to the Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available or is already in Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. All data, documents and files created by Consultant under this Agreement may be stored at Consultant's office in Bellevue, Washington. Consultant shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City's offices. Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost. All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service City of Bremerton/Barker Creek Consulting, LLC Page 5 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 with respect to the project and are the property of the City. Any reuse by the City for other than the specific purpose intended will be at City’s sole risk. C. Use of Photographs and Images. Consultant shall not use or distribute photographs or images depicting City officials, personnel, property, or equipment whether prepared by Consultant or provided by City without prior written consent of the City. The City will not unreasonably withhold its consent. D. Work Performed at Consultant's Risk: Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub-consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. E. Place of Work: The Consultant shall perform the work authorized under this Agreement at its offices in Bellevue, Washington. Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties. F. Entire Agreement: This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. G. Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. H. Modification: This Agreement may only be modified by written instrument signed by both Parties. I. Written Notices: All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1st class mail, or by personal service, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. Notices to be sent to: Notices to be sent to: CITY: CONSULTANT: Attn: Angela Hoover Attn: Shannon Thompson City of Bremerton Barker Creek Consulting, LLC 345 6th Street, Suite 100 PO Box 2011 Bremerton, WA 98337-1891 Silverdale, WA 98383 J. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. City of Bremerton/Barker Creek Consulting, LLC Page 6 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 K. Non-Waiver of Breach: The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. L. Compliance with Laws: Consultant shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. M. Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. N. Attorneys’ Fees: In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney’s fees. O. Assignment: Any assignment of this agreement by the Contractor without the written consent of the City shall be void. VIII. Equal Employment Opportunity Statement: In the hiring of employees for the performance of work under this Agreement, the Consultant, its subcontractors, or any person acting on behalf of Consultant shall not discriminate in any employment practice on the basis of age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military status, or the presence of any physical, mental or sensory disability. IX. ADA Statement: The City of Bremerton does not discriminate on the basis of disability in programs and activities, which it operates pursuant to the requirements of the Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to both employment and admission to participation in the programs, services and activities of the City of Bremerton. Reasonable accommodation for employees or applicants for employment will be provided. X. Termination: This Agreement shall remain in force until completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non- performing Party does not commence correction of the failure of performance within thirty (30) days of the terminating Party’s sending notice to the non-performing Party. Any Notice by Consultant shall include a report showing the status of all items listed in the Scope of Work current through the termination date. If the City receives reimbursement by any federal, state, or other source for work described in Section I herein, and that funding is withdrawn, reduced or limited in any way, or the project is cancelled or substantially reduced after the execution date of this Agreement and prior to the completion of the work, the City may summarily terminate this Agreement. City of Bremerton/Barker Creek Consulting, LLC Page 7 of 7 Construction Management Services for Oyster Bay Beach Sewer Upgrades May 2021 A.Excusable Delays: The right of Consultant to proceed shall not be terminated nor shall Consultant be charged with liquidated damages for any delays in the completion of the work due to: 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency; 2) any acts of the City, its consultants, or other public agencies causing such delay; and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity. PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) calendar days in writing of the cause of the delay. If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay. B.Rights Upon Termination: In the event of termination, the City shall pay for all services performed by the Consultant to the effective date of termination, as described on a final invoice submitted to the City. After termination, the City may take possession of all records and data within the Consultant's possession pertaining to this project which may be used by the City without restriction. Any such use not related to the project which Consultant was contracted to perform shall be without liability or legal exposure to the Consultant. XI. Suspension & Debarment. For contracts involving Federal funding, Consultant hereby certifies, by signing this agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Consultant shall provide immediate written notice to the City if at any time it learns that it is or has become ineligible for certification. Should Consultant enter into a covered transaction with another firm, Consultant agrees by signing this agreement that it will verify that the firm with whom it intends to do business is not debarred, suspended, ineligible, excluded or disqualified. IN WITNESS WHEREOF, the parties below have executed this Agreement. CONSULTANT: BARKER CREEK CONSULTING, LLC By: ______________________________ Print Name: Its: ______________________________ Date: ______________________________ ATTEST: By: ______________________________ CITY: CITY OF BREMERTON By: Print Name: Greg Wheeler Its: Mayor Date: APPROVED AS TO FORM: By: Roger A. Lubovich, Bremerton City Attorney Angela Hoover, City Clerk 1 April 21, 2021 City of Bremerton Oyster Bay Beach Sewer Upgrades Exhibit A - Scope of Work SCOPE OF WORK City of Bremerton Oyster Bay Beach Sewer Upgrades Owner Rep Services During Construction INTRODUCTION Barker Creek Consulting (BCC) will provide on call owner representative construction management service for the Oyster Bay Beach Sewer Upgrades project and work as an extension of City Staff to provide construction management services throughout the construction of the project. A proposed schedule for the work is provided in Exhibit B and our proposed budget is attached as Exhibit A. The following tasks are associated with this SOW: Task 1– Construction Management Support Objective Barker Creek Consulting will provide construction management support as requested throughout the construction phase of the project. This work will be performed on a time and materials basis. Work assignments are as follows: Activities The following activities may be associated with this task: •Lead and attend weekly construction meetings •Prepare and draft meeting agendas and meeting notes for the weekly construction meetings •Review changes and provide comment for the preparation work change directive and field orders •Review contractor master schedule •Review contractor schedule of values and payment request. •Verify certified payrolls •Prepare contract working day reports for issuance to the contractor. •Implement and maintain master document control system to track correspondence, shop drawing submittals, RFI’s, laboratory and test reports, work directives, and change orders. •Coordinate project close out and punch list with the deign team Deliverables The following deliverables will be prepared: •Work change directives, field orders, pay request reviews and other document as requested by the City •Provide weekly construction agenda meeting notes and documentation required EXHIBIT A April 21, 2021 2 April 21, 2021 City of Bremerton Oyster Bay Beach Sewer Upgrades Exhibit A - Scope of Work •Maintain master document control system to track correspondence, shop drawing submittals, RFI’s, laboratory and test reports, work directives, and change orders. •Maintain electronic files per City’s instructions. Assumptions The following assumptions apply to this task: •Barker Creek Consulting will provide support on an on-call basis such as needed for negotiating change orders, reviewing construction issue and field changes. •Barker Creek Consulting upon request will provide staff for onsite observation which includes tracking pay estimate quantities, coordinating special inspections and testing, and tracking all project changes. •Barker Creek Consulting will draft, field orders, change orders, and all pay applications for the City staff to process. PROJECT ASSUMPTIONS AND CONDITIONS •This Scope of Services and associated fee schedule are based on the assumption that BARKER CREEK CONSULTING will provide construction management services for the above stated project on a time and material basis. The Scope of Services and associated fee schedule is based on a time and materials not to exceed budget (see estimated effort attached). Work beyond that time has not been included in the costs for this Scope of Services and would be considered additional or extra work. If the project is delayed, the Contractor works on unworkable or non-working days, or the project’s working days exceed this time, then the effort needed to provide construction services by BARKER CREEK CONSULTING will need to be increased. The CITY and BARKER CREEK CONSULTING will work closely to optimize this additional-required level of effort by BARKER CREEK CONSULTING. •Work under this contract will begin May 2020 and continue through the October 2022 •Normal working day and night work hours shall be in accordance (Monday through Friday 8:00 AM – 5:00 PM). Saturday, Sunday, and holidays, plus nighttime work may be required at the request of the City and for work performed on those days, reimbursement shall be in accordance with the hourly rates contained within this proposal. •BARKER CREEK CONSULTING shall not be responsible for the Contractor’s construction means, methods, techniques, sequences or procedures, or safety precautions and programs except as otherwise provided in this Scope of Services. BARKER CREEK CONSULTING shall not be responsible for the Contractor’s failure to carry out the work in accordance with the contract documents. BARKER CREEK CONSULTING will endeavor to identify and guard the City against defects and deficiencies in the work of the Contractor, but it is understood that BARKER CREEK CONSULTING does not and cannot guarantee the performance of the Contractor. •BARKER CREEK CONSULTING has prepared this Scope of Services and related cost spreadsheet with the assumption that a competent Contractor is selected by the CITY for the project. April 21, 2021 City of Bremerton Oyster Bay Beach Sewer Upgrades Exhibit B - Schedule EXHIBIT B - SCHEDULE Work Element Completed By Notice to Proceed May 2021 Substantial Completion, 30 days after anticipated construction completion November 1, 2022 EXHIBIT C - FEE BARKER CREEK CM SERVICES HOURLY ESTIMATE FOR OYSTER BAY BEACH SEWER UPGRADES STAFF Jan-21 Feb-21 Mar-21 Apr-21 May-21 Jun-21 Jul-21 Aug-21 Sep-21 Oct-21 Nov-21 Dec-21 TOTAL HRS Construction Manager 60 60 60 60 60 60 60 60 480 Senior Admin 60 60 50 50 50 50 50 50 420 Accountant 2 2 2 2 2 2 2 2 16 STAFF Jan-22 Feb-22 Mar-22 Apr-22 May-22 Jun-22 Jul-22 Aug-22 Sep-22 Oct-22 Nov-22 Dec-22 TOTAL HRS Manager 40 40 40 40 40 40 40 40 40 20 380 Admin 50 50 50 40 40 40 40 40 40 20 410 Accountant 2 2 2 2 2 2 2 2 2 2 20 Constr.Senior Manager Admin Acct. Burdened Rates 2021: $165 $115 $95 Burdened Rates 2022: $170 $120 $95 480 420 16 380 410 20 $79,200 $48,300 $1,520 $64,600 $49,200 $1,900 PROJECT LABOR -$ $143,800 $97,500 $3,420 SUM OF TOTAL PROJECT LABOR $244,720 $4,900 $735 $5,635 MANAGEMENT RESERVE (written authorization only)$12,000 $262,355 ESTIMATED 2021 LABOR HOURS ESTIMATED 2022 LABOR HOURS HOURS Labor 2021 Labor 2022 TOTAL ESTIMATED AMOUNT Cost for Labor 2021: Cost for Labor 2022: plus 15% Estimated @ 2 % of labor Direct Expenses and project mileage SUM OF DIRECT EXPENSES SRF Specification Insert 1 Revised 10/24/2014 WASHINGTON STATE DEPARTMENT OF ECOLOGY WATER POLLUTION CONTROL REVOLVING FUND ENGINEERING SERVICES INSERT Revised 10/24/14 The following clauses will be incorporated into contracts for engineering services receiving financial assistance from the Washington State Department of Ecology Water Pollution Control Revolving Fund. In the event of conflict within the contract these clauses shall take precedence Compliance with State and Local Laws The engineering services provider (CONTRACTOR) shall assure compliance with all applicable federal, state, and local laws, requirements, and ordinances as they pertain to the design, implementation, and administration of the approved project. State Interest Exclusion Partial funding of this project is being provided through the Washington State Department of Ecology Water Pollution Control Revolving Fund. Neither the State of Washington nor any of its departments or employees are, or shall be, a party to this contract or any subcontract. Third Party Beneficiary Partial funding of this project is being provided through the Washington State Department of Ecology Water Pollution Control Revolving Fund. All parties agree that the State of Washington shall be, and is hereby, named as an express third-party beneficiary of this contract, with full rights as such. Cost Basis of Contract No contract may be written for "cost-plus-a-percentage-of-cost" or "percentage of construction cost." The cost basis for this contract must be cost-reimbursement, unit price, fixed-price, time and materials, or any combination of these four methods. Funding Recognition Documents produced under this agreement shall inform the public that the project received financial assistance from the Washington State Water Pollution Control Revolving Fund. Washington State Department of Ecology’s and the EPA’s logomust be on all signs and documents. Logos will be provided as needed. Access to the work site and to records The CONTRACTOR shall provide for access to their records by Washington State Department of Ecology and Environmental Protection Agency (EPA) personnel. EXHIBIT D SRF Specification Insert 2 Revised 10/24/2014 The CONTRACTOR shall maintain accurate records and accounts to facilitate the Owner’s audit requirements and shall ensure that all subcontractors maintain auditable records. These records shall be separate and distinct from the CONTRACTOR’s other records and accounts. All such records shall be available to the Owner and to Washington State Department of Ecology and EPA personnel for examination. All records pertinent to this project shall be retained by the CONTRACTOR for a period of three (3) years after the final audit. Certification Regarding Suspension, Debarment, Ineligibility Or Voluntary Exclusion 1. The CONTRACTOR, by signing this agreement, certifies that it is not suspended, debarred, proposed for debarment, declared ineligible or otherwise excluded from contracting with the federal government, or from receiving contracts paid for with federal funds. If the CONTRACTOR is unable to certify to the statements contained in the certification, they must provide an explanation as to why they cannot. 2. The CONTRACTOR shall provide immediate written notice to the Washington State Department of Ecology if at any time the CONTRACTOR learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the Washington State Department of Ecology for assistance in obtaining a copy of the regulations. 4. The CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under the applicable Code of Federal Regulations, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction. 5. The CONTRACTOR further agrees by signing this agreement, that it will include this clause titled “Certification Regarding Suspension, Debarment, Ineligibility Or Voluntary Exclusion” without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 6. Pursuant to 2CFR180.330, the CONTRACTOR is responsible for ensuring that any lower tier covered transaction complies with certification of suspension and debarment requirements. 7. The CONTRACTOR acknowledges that failing to disclose the information required in the Code of Federal Regulations may result in the delay or negation of this funding agreement, or pursuance of legal remedies, including suspension and debarment. 8. The CONTRACTOR agrees to keep proof in its agreement file that it and all lower tier SRF Specification Insert 3 Revised 10/24/2014 recipients or contractors are not suspended or debarred and will make this proof available to the Washington State Department of Ecology upon request. The RECIPIENT/CONTRACTOR must run a search in http://www.sam.gov/ and print a copy of completed searches to document proof of compliance. This term and condition supersedes EPA Form 5700-49, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters.” Disadvantaged Business Enterprises General Compliance (40 CFR Part 33). The CONTRACTOR shall comply with the requirements of the Environmental Protection Agency’s Program for Participation By Disadvantaged Business Enterprises (DBE) 40 CFR Part 33. Non-discrimination Provision (40CFR Appendix A to Part 33). The CONTRACTOR shall not discriminate on the basis of race, color, national origin or sex in the performance of this contract. The CONTRACTOR shall carry out applicable requirements of 40 CFR part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the CONTRACTOR to carry out these requirements is a material breach of this contract which may result in the termination of this contract or other legally available remedies. Six Good Faith Efforts (40 CFR Part 33 Subpart C). The CONTRACTOR agrees to make the following good faith efforts whenever procuring subcontracts, equipment, services and supplies. The CONTRACTOR shall retain records documenting compliance with the following six good faith efforts. 1. Ensuring Disadvantaged Business Enterprises are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State and Local and Government recipients, this will include placing Disadvantaged Business Enterprises on solicitation lists and soliciting them whenever they are potential sources. Qualified Women and Minority business enterprises may be found on the Internet at www.omwbe.wa.gov or by contacting the Washington State Office of Minority and Women’s Enterprises at (866) 208-1064. 2. Making information on forthcoming opportunities available to Disadvantaged Business Enterprises and arrange time frames for contracts and establish delivery schedules, where the requirements permit, in a way that encourages and facilitates participation by Disadvantaged Business Enterprises in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of thirty (30) calendar days before the bid or proposal closing date. 3. Considering in the contracting process whether firms competing for large contracts could subcontract with Disadvantaged Business Enterprises. For Indian Tribal, State and local Government recipients, this will include dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum participation by Disadvantaged Business Enterprises in the competitive process. 4. Encourage contracting with a consortium of Disadvantaged Business Enterprises when a SRF Specification Insert 4 Revised 10/24/2014 contract is too large for one of these firms to handle individually. 5. Using services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce. 6. If the prime contractor awards subcontracts, requiring the subcontractors to take the six good faith efforts in paragraphs 1 through 5 above. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Authorize 1 FTE Transportation Project Manager and 1 FTE Internal Services Manager for the Public Works & Utilities Department COUNCIL MEETING Date: May 19, 2021 Department: PW&U Presenter: Tom Knuckey Phone: (360) 473-2376 SUMMARY: In 2019 the City contracted with FCS Group to evaluate staffing levels in the Engineering Division; the evaluation conclusion is that staffing levels should increase. To begin implementing the report findings, staff request a new Transportation Project Manager be approved in the 2021 budget, in addition to the two new Development Staff Council previously approved on April 7th. Staff additionally request that a new Internal Services Manager position be created to address structural concerns with Public Works & Utilities Management. The assumed pay band for this position is Band 16, consistent with the other Public Works managers. This band will be confirmed by Human Resources through a salary survey. Adding this new position will allow the creation of a needed Office Assistant Senior position by downgrading an existing Utilities Service Specialist position. ATTACHMENTS: (1) Powerpoint Presentation FISCAL IMPACTS (Include Budgeted Amount): The Transportation Project Manager is 10% funded by Stormwater, 45% by the General Fund and 45% by Grants. The Internal Service Manager is funded at 30% by Water, 10% by Wastewater, 10% by Stormwater, 30% by the General Fund, and 20% by the Equipment Services Fund. Annual labor and benefits for the two positions are $157,000 for the Transportation Project Manager, and $177,000 for the Internal Services Manager. Further detail regarding 2021 half-year costs is included in the powerpoint presentation. STUDY SESSION AGENDA: ☐ Limited Presentation ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to create the position of Internal Services Manager at Band 16 of the Management, Professional, Confidential & Fiduciary Salary Plan to be confirmed by a salary survey, and authorize the 2021 mid-year hire of an Internal Services Manager and approve a $26,550 increase to the labor budget of the General Fund, $26,550 from Water, $8,850 from Wastewater, $8,850 from Stormwater, and $17,700 from Equipment Services; and approve the mid-year hire of a Transportation Project Manager, and approve a $94,500 increase to the Engineering General Fund budget with revenue to the Engineering General Fund of $9,450 from Stormwater. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A5 Updated Public Works & Utilities Mid-Year Position Requests City Council Study Session May 12, 2021 Transportation Project Manager •Recommended by the FCS Workload Study •Mid-year request necessary to address operational workload, Capital Project backlog/workload, and Transportation Planning to support 2022 Grant requests and Comp Plan update Internal Services Manager •Additional management position allows for reorganization to address workload concerns •Mid-year request necessary due to two imminent retirements One of the lost positions supported survey, the others supported Operations and Capital Average tenure of the Managing Engineer – Transportation is 3-yrs Responsibilities of the Managing Engineer –Transportation include:•Traffic Engineer•Transportation Planner (separate position for all FCS benchmark Cities)•Transportation Capital Program Manager •Technical oversight responsibility for Transportation Operations and Planning Studies •Due to backlog the Managing Engineer is also currently managing multiple Capital projects Requested Position:•New Transportation Project Manager/Transportation Planner -50:50 time split between Operations (planning, traffic engineering & customer response) and Capital project delivery TransCap projects have been 71% grant funded on average since 2015 •$32M in transportation project grants received since 2015; $2.6M through lobbying. Lobbying success will increase with restart of Federal earmarks •66% success rate since 2015 (38 transportation applications, 25 awards) •Background work required for heavy application cycle in 2022 that will fund projects through 2026 •Projects in construction become highest priority, second only to safety issues •Federal STP grants have inflexible deadlines; delays may result in grant loss/pay back. Similar but less strict concerns with State grants •Heavy capital workload results in staffing concern for the 2023 update to the Transportation Element of the Comp Plan, and planning for PSIC/Airport Way, SR3 Freight Corridor, Gorst, etc. •FCS report cited that benchmark Cities had between 2.5 and 4 Capital Projects/Engineer; Bremerton has over 6.5 Capital Projects/Engr •Existing capital projects exceed capacity resulting in delays and placing existing and future grants at-risk •Recruiting is difficult –will take several months to fill the position Internal Services Manager •New position enables reorganization to address workload concerns •Enables downgrade of an existing position to address Facilities administration needs •Mid-year request necessary due to two imminent management retirements Director Public Works Operations Manager * Water Resources Division Manager Wastewater Operations Division Manager Utility Division Manager * Engineering Division Manager/City Engineer Administrative Assistant Administrative Project Manager Fiscal Analyst * (PW&U Financial Manager) Water Resources (10-FTE, $6.4M) Administration (3-FTE, $1M) Street Division (14-FTE, $5.5M) Forestry (4-FTE, $1.5M) Eqpt. Services (4-FTE, $3M) Facilities & Inventory (8-FTE, $2M) Facility Electrical Maint (3-FTE) Storm/NPDES Compliance (2-FTE, $3M) Wastewater Operations WWTP’s & Pump Stations (20-FTE, $6.4M) Signal Maint (1-FTE) Transportation, Utilities, Development (21-FTE, $28M) Utility Maint. W, WW, SW (31-FTE, $18M) Nine Division Managers in 2008, Five currently *Desk audit requested for Fiscal Analyst; inconclusive desk audit results for Opns Mgr & Utility Division Mgr PW&U Safety Officer PW Operations Manager -Milenka to retire in June •Unreasonable span of control -3-Divisions (Streets, Forestry, Equipment Services), 20-FTEs, $9M Utility/Facility Manager -Wayne to retire in December •Unreasonable span of control –2-Divisions/3 Functions (W/WW/SW Maintenance, Building Maintenance, Materials & Equipment Inventory), 42-FTEs, $20M •PW&U Safety Officer –used to be primary responsibility of the Administrative Manager Facilities/Inventory Division •Span of control is significant (20 facilities plus Eqpt/material inventory for all of PW&U) –8 FTEs, $2.1M •Significant workload increase with NDGC Mgt.; coordinating to add Park buildings •Facilities Supervisor’s OT has been over 30% of all Facilities OT the last 6-years; nearly 40% since March •Need accounting/admin assistance to manage responsibilities Engineering Division •FCS Evaluation recommends 6 positions plus 0.5-FTE for Electronics. Need reduced from 9 through proposed efficiencies •Stormwater split between Water Resources & Engineering •Several Operations activities shifted to Engineering since 2013 Proposed Revisions: •Add one new Manager –Internal Services Manager (Facilities, Materials & Equipment Inventory, Equipment Services) •Band 16 assumed –to be confirmed by HR through a salary survey •Future Council Action to appoint the Facilities/Inventory Supervisor at Rate 8 •Downgrade one position in Facilities from Service Specialist to OA Senior to address accounting need and provide Customer Response Backup •Adjust Responsibilities through Reorganization for Efficiency: •Shift Stormwater to Engineering to consolidate SW responsibilities •Shift Forestry to Water Resources –better nexus than Streets •Consolidate Facility/Traffic Signal Electricians and shift to new Internal Services Mgr (FCS Report Implementation) •Shift maintenance contracts & more customer response from Engineering to Streets (FCS Report Implementation) Director Public Works Operations Manager Water Resources Division Manager Wastewater Operations Division Manager Utility Division Manager Engineering Division Manager/City Engineer Fiscal Analyst (Desk Audit Pending) Internal Services Manager (New Position) Administrative Assistant Administrative Project Manager Water Resources (10-FTE, $6.4M) Forestry (4-FTE, $1.5M) Street Division (14-FTE, $5.5M) Wastewater Operations WWTP’s & Pump Stations (20-FTE, $6.4M) Utility Maintenance W, WW, SW Mains (31-FTE, $18M) Facility & Signal Electrical Maint (4-FTE) Transportation, Utilities, Development (21-FTE, $28M) Storm/NPDES Compliance (2-FTE, $3M) Admin Division (3-FTE, $1M)Facilities & Inventory (9-FTE, $2M) Eqpt. Services (4-FTE, $3M)PW&U Safety Officer •New Transportation Project Manager ($157,000/yr) •New Internal Services Manager ($177,000/yr) •Downgrade one Utility Svc Specialist to Office Assistant Sr. (-$8,000) Programmed rate increases through 2026 not affected by new positions: •Higher GFC revenue than projected •Utility capital projects delayed •Conservative projected growth in the model does not reflect current development •Success in securing low-interest loans replaced programmed bond issuance = lower annual debt service AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Authorize 1 FTE Legal Assistant for Civil Division and Increase to 1 FTE Legal Assistant for Prosecution Division in the Legal Department COUNCIL MEETING Date: May 19, 2021 Department: Legal Presenter: Roger Lubovich Gary Hersey Phone: (360) 473-2345 SUMMARY: The City Attorney’s office is seeking to increase Prosecution’s Legal Assistant position from a part time to a full-time position. The City Attorney’s office is also requesting to add a full-time Legal Assistant position in the Civil division to assist the City Clerk with public records and other functions, as well as providing assistance with litigation and contract review. ATTACHMENTS: 1) PowerPoint Presentation FISCAL IMPACTS (Include Budgeted Amount): Annual labor and benefits increase for the 2021 budget is $76,000. STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to: 1) Increase Prosecution’s Legal Assistant position from a part time to a full-time position at Band 4, Rate 1 of the Management, Professional, Confidential & Fiduciary Salary Plan; 2) Create a full- time Legal Assistant position in the Civil division at Band 4, Rate 1 of the Management, Professional, Confidential & Fiduciary Salary Plan; 3) Authorize the 2021 mid-year hire of a full-time Legal Assistant position in the Civil division; and 4) Approve a $76,000 increase to the 2021 labor budget of the General Fund. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 STUDY SESSION AGENDA: ☐ Limited Presentation ☒ Full Presentation A6 CITY ATTORNEY STAFFING REQUESTS STAFFING REQUESTS BREAKDOWN Civil Division Add one full time Legal Assistant position to: Assist City Clerk with public records. Perform other various legal assistant duties. Prosecution Increase part-time Legal Assistant position to full-time position. CIVIL DIVISION Current Staffing Levels Roger Lubovich, City Attorney Mychael Raya, Assistant City Attorney Brett Jette, Assistant City Attorney Melisa Vaal Folmer, Risk Management Specialist Angela Hoover, City Clerk Stephanie Olson, Legal Assistant CIVIL DIVISION CONTRACTS 2015: 208 2016: 206 2017: 292 2018: 314 2019: 427 2020: 388 2021: 163 (As of May 4, 2021) 2021 Projected: 400+ NUISANCE PROP. 2020 1 property 2021 7 properties LITIGATION 2021 Lawsuits: 9 RALJ Appeals: 2 CIVIL DIVISION Legal Assistant duties include: Provides litigation and administrative support. Logs and monitors work requests and contracts. Reviews insurance documents for contracts. Drafts and reviews ordinances, resolutions, agenda bills, office forms, pleadings and correspondence. Prepares and submits claims for monthly bills and credit card statements and generates monthly budget statements. Maintains case management system. Assists with maintenance, retention, and destruction of files. Assists with responding to public records requests. Assists with budget process. Monitors and orders office supplies. Assist and back-up Risk Management and City Clerk. RISK MANAGEMENT TORT CLAIMS 2015: 39 2016: 31 2017: 30 2018: 32 2019: 44 2020: 36 2021: 8 (As of April 23, 2021) CITY PROPERTY DAMAGE 2015: 56 2016: 77 2017: 75 2018: 91 2019: 107 2020: 101 2021: 33 (As of April 23, 2021) WORKER’S COMPENSATION 2015: 33 2016: 27 2017: 34 2018: 37 2019: 35 2020: 15 2021: 8 (As of April 23, 2021) CITY CLERK PUBLIC RECORDS REQUESTS 2015: 153 2016: 223 2017: 241 2018: 675 2019: 395 2020: 334 2021: 156 (As of April 27, 2021) PROSECUTION Current Staffing Levels Gary Hersey, City Prosecutor Maureen McKeeman, Assistant City Prosecutor Kari Mann, Legal Assistant Jennifer Boynton, Records Clerk/Legal Assistant (Part- Time) PROSECUTION Filings 2016: 1289 2017: 1342 2018: 1296 2019: 1762 2020: 1564 2021: 1720 (projected) Hearings 2016: 10,006 2017: 10,321 2018: 10,630 2019: 11,596 2020: 14,316 2021: 17,348 (projected) Future Needs •ESB 5476 (Makes simple possession a Misdemeanor): If passed, this will increase criminal filings at least 200 cases per year and will create substantially more hearings. •COVID trial backlog. •Increase in out-of-custody referrals. •Back-up for Kari Mann. •Increased victim/witness contact needed. PROSECUTION Legal Assistant duties include: Assist in all phases of litigation. Review police reports/open criminal referrals/coordinate with County Prosecutor’s Office for “drop downs” and “bump ups”. Victim/Witness interviews/coordination. Connect victims with services and domestic violence resources. Coordinate with insurance companies. Prepare draft legal documents at prosecutor request. Work with Bremerton Police Department and other agencies. Obtain Court records and criminal history reports. Close and scan all completed cases for record retention purposes. Coordinate follow-up requests related to pending investigations and ensure timely compliance with discovery requests and obligations. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: May 12, 2021 Professional Services Agreement w/Kitsap Law Group for Interim City Attorney Legal Services COUNCIL MEETING Date: May 19, 2021 Department: Executive Presenter: Mayor Wheeler Phone: (360) 473-5266 SUMMARY: Kylie Finnell through Kitsap Law Group will serve as the City of Bremerton Interim City Attorney from June 28, 2021 to December 31, 2021. The duties of the Interim City Attorney will include advising the City on legal matters, supervising pending litigation, attending meetings customarily attended by the City Attorney, and consulting with the Mayor on City Attorney’s Office departmental operations. ATTACHMENTS: 1) Professional Services Agreement FISCAL IMPACTS (Include Budgeted Amount): There is no financial impact to the 2021 budget, however a re-allocation of $81,000.00 from the City Attorney’s personnel budget to professional services will be required. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to authorize a budget re-allocation of $81,000 from the City Attorney’s office personnel budget to professional services; approve the Professional Services Agreement with Kitsap Law Group; 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 PROFESSIONAL SERVICES AGREEMENT The City of Bremerton ("City") and Templeton Horton Weibel & Broughton PLLC dba KITSAP LAW GROUP ("Retained Counsel"), referred to collectively as the "Parties," enter into the following Agreement for professional services: I. Scope: Retained Counsel will serve as Interim City Attorney for the City pursuant to the terms of this Agreement. The duties of the Interim City Attorney will include advising the City on legal matters, supervising pending litigation, attending meetings customarily attended by the City Attorney, and consulting with the Mayor on City Attorney’s Office departmental operations. This Agreement does not include representation in litigation and other matters which is addressed by separate agreement executed by the parties May 26, 2015. II. Term: This Agreement commences June 21, 2021 and shall continue in full force and effect until December 31, 2021 or termination pursuant to Section V of this Agreement. III. Compensation: The City shall pay Retained Counsel $3,000.00 per week for services as described in Section I for a total of $84,000.00. IV. Insurance: Retained Counsel shall provide Certificates of Insurance to the City's Risk Manager verifying the following coverage: a professional liability policy ("E&O") providing coverage of One Million Dollars ($1,000,000) for errors and omissions committed by Retained Counsel while performing its obligations under this Agreement. The policy shall remain in full force and effect, and provide coverage for the full term of this Agreement. Insurer shall provide the Risk Manager with thirty (30) days' written notice of any cancellation or change of coverage of the policy. V. Termination: The Parties agree that this Agreement will continue in full force and effect until terminated. Either party may terminate this agreement at any time, with or without cause, upon 15 days written notice to the other party and as allowed by court rules. VI. General Conditions: A. Reports and Information: When requested by the City, Retained Counsel 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 . B. Entire Agreement: This Agreement constitutes the entire agreement between the Parties regarding Interim City Attorney services, 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. C. Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. D. Modification: This Agreement may only be modified by written instrument signed by both Parties. E. Notices: Notices shall be in writing and delivered to the following addresses: CITY: RETAINED COUNSEL: Greg Wheeler, Mayor Kylie J. Finnell City of Bremerton KITSAP LAW GROUP 345 Sixth Street, Suite 100 3212 NW Byron Street, Suite 101 Bremerton, WA 98337 Silverdale, WA 98383 F. 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 a waiver of any other right or power. G. Compliance with Laws: Retained Counsel shall comply with all applicable Federal, State and local laws in performing its obligations under this Agreement. H. 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 Pierce County Superior Court. I. 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 attorneys' fees. VII. Nondiscrimination: Retained Counsel 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 for employment actions based on bona fide occupational qualification. CITY OF BREMERTON KITSAP LAW GROUP By: Roger A. Lubovich By: Kylie J. Finnell Its: City Attorney Its: Member Date: Date: