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08/24/2022 STUDY SESSION AGENDA PACKET
______________________________________________________________ CITY COUNCIL 345 6th Street, Suite 100, Bremerton, WA 98337 Phone (360) 473-5280 WEDNESDAY, AUGUST 24, 2022 CITY COUNCIL STUDY SESSION AGENDA 5:00 PM – Via Zoom Webinar City Council is currently conducting all meetings via Zoom Webinar. The Study Session is open to the public to listen in, but there will be no opportunities for input; the content of these items is subject to change; and no action is anticipated. If approved by the Council, these items will be placed on the September 7, 2022 City Council Meeting Agenda… Members of the public are invited to join the Zoom webinar by clicking on the following link: https://us02web.zoom.us/j/86909902987?pwd=U0Jaa1liTWJKNWR5aTZpc1ZhWk5RUT09 Or iPhone one-tap: US: +12532158782,,86909902987#,,,,*209823# or +16694449171,,86909902987#,,,,*209823# Or Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 253 215 8782 or +1 346 248 7799 or +1 669 444 9171 or +1 669 900 6833 or +1 564 217 2000 Webinar ID: 869 0990 2987 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. Proposed Public Hearing for Acceptance of 2023 Edward Byrne Memorial Justice Assistance Grant 2. Contract Modification Agreement No. 4 with KPFF Consulting Engineers for Design of the East 11th Street & Perry Avenue Complete Streets Reconstruction Project 3. Professional Services Agreement with SCJ Alliance for Construction Management Services for the East 11th Street and Perry Avenue Complete Streets Reconstruction Project 4. Public Works Agreement with Stripe Rite, Inc. for 2022–2024 Unit Priced Contract for the Preservation of City-Wide Pavement Markings 5. Reconsider Ordinance No. 5453 amending Chapter 6.32 of the Bremerton Municipal Code entitled “Noise Levels” B. GENERAL COUNCIL BUSINESS o Public Works Committee Monthly Briefing (Last Meeting 8/16/22) – Chair Eric Younger o Audit Committee Briefing – Chair Jeff Coughlin o Finance, Investment & Parking Committee Monthly Briefing (Last Meeting 8/23/22) – Chair Jennifer Chamberlin o Other General Council Business C. ADJOURNMENT OF STUDY SESSION AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: August 24, 2022 Proposed Public Hearing for Acceptance of 2023 Edward Byrne Memorial Justice Assistance Grant COUNCIL MEETING Date: September 7, 2022 Department: Police Presenter: Lt. Ryan Heffernan Phone: (360) 473-5777 SUMMARY: The Bremerton Police Department is applying for the local solicitation of the Edward Byrne Memorial Justice Assistance Grant (JAG). Since 2010, funding has been used to help fund the salary for the position of the Community Resource Specialist. The grant will allow the City to continue the Community Resource Unit and its crime prevention function and programs. The grant is from the Department of Justice. No matching funds are required of the City. Bremerton PD will request $15,979 from the DOJ. ATTACHMENTS: Edward Byrne Memorial Justice Assistance Grant Application FISCAL IMPACTS (Include Budgeted Amount): None STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☒ Public Hearing RECOMMENDED MOTION: Move to approve the Edward Byrne Memorial Justice Grant, and to 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 A1 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: August 24, 2022 Contract Modification Agreement No. 4 with KPFF Consulting Engineers for Design of the East 11th Street & Perry Avenue Complete Streets Reconstruction Project COUNCIL MEETING Date: September 7, 2022 Department: PW&U Engineering Presenter: Vicki Grover Phone: (360) 473-2317 SUMMARY: In April 2019, the City executed a contract with KPFF to design the East 11th Street and Perry Avenue Reconstruction project for $534,002.58. Three supplement agreements have been executed: Supplement No. 1 was in the amount of $53,282.50 for additional design services including water/sewer utility design support, potholing, stormwater downstream impact analysis, utility coordination, and other engineering design support services. The amendment also increased the contract time by extending the time through December 2021. Supplement No. 2 was in the amount of $156,631.65; the additional design work included right-of-way acquisition services, formation of small works roster contract for residential electrical work required by PSE for overhead electrical relocations, additional survey, and design of additional watermain and drainage improvements. Supplement No. 3 was in the amount of $20,045.54 and was for support during the bid phase of the project. The proposed Supplement No. 4 increases the contract value by $88,795.97 to a new total of $852,758.24; the work includes construction engineering support services and extends the term of the contract to December 31, 2023. ATTACHMENTS: 1) Contract Modification Agreement No. 4 with KPFF FISCAL IMPACTS (Include Budgeted Amount): The project is in the Transportation Capital 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 Contract Modification Agreement No. 4 with KPFF, for the East 11th Street and Perry Avenue Reconstruction Project, in an amount not to exceed $88,795.97 for a total amended contract amount of $852,758.24, 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 11/09/2021 A2 Page 1 of 2 Contract Modification Rev. 09/2021 CONTRACT MODIFICATION AGREEMENT NO. 004 to CITY CONTRACT #5972 BETWEEN THE CITY OF BREMERTON AND KPFF CONSULTING ENGINEERS PROJECT East 11th Street and Perry Avenue Complete Streets Improvement Project #315018 CONSULTANT KPFF Consulting Engineers DATE July 28, 2022 THIS CONTRACT MODIFICATION AGREEMENT SPECIFICALLY AMENDS THE CONSULTANT AGREEMENT (the "Contract") entered into between the City of Bremerton and KPFF Consulting Engineers on April 16, 2019 and as modified on January 1, 2021 on Contract Modification #001 and again modified on June 10, 2021 on Contract Modification #002, and again modified on May 27, 2022 on Contract Modification #003. All provisions in the Contract shall remain in full force and effect except as expressly modified by this document. For valuable consideration and by mutual consent of the parties, the modifications to the Contract are as follows: I. Section I. Scope , is modified as follows: See Amended Scope of Work attached as Exhibit A Section II. Term , is modified as follows: The Consultant shall complete the work described in this Contract Modification Agreement by December 31, 2023. Section III. Compensation , is modified as follows: The original contract amount was $ 534,002.58. The current contract amount, including all previous amendments is $ 763,962.27. The City shall pay the Consultant for the additional work described above, based on time and materials, an amount not to exceed $88,795.97 for a total amended contract amount of $852,758.24, including this Contract Modification. II. Consultant accepts all requirements of this Contract Modification by endorsing below. Consultant further agrees that this Contract Modification constitutes full and final settlement of all of the Consultant’s claims for contract time and for all costs of any kind, including without limitation, costs of delays related to any work either covered or affected by this Contract Modification, claims related to on-site or home office overhead, or lost Page 2 of 2 Contract Modification Rev. 09/2021 profits. This Contract Modification does not limit the City’s right to bring a claim for past performance. The undersigned consultant approves the foregoing Contract Modification as to the changes, if any, in the contract price specified for each item, including any and all supervision costs and other miscellaneous costs relating to the change in work, and as to the extension of time allowed, if any, for completion of the entire work due to said Contract Modification. This document will become a supplement of the contract and all provisions will apply hereto. It is understood that this Contract Modification shall be effective when approved by the City of Bremerton. The parties whose names appear below warrant that they are authorized to enter into a contract modification that is binding on the parties of this contract. In addition, Consultant warrants that it has or will inform the surety of this change, and shall take appropriate action to modify any bonds required under the contract to address this change. IN WITNESS WHEREOF, the parties have executed this Contract Modification on the day and year first written above. City Engineer / Public Works Director approved to process _________________________ (Initials and Date) CONSULTANT THE CITY OF BREMERTON By: By: Print Name: Ron Leimkuhler______ Print Name: Greg Wheeler________ Its: Principal___________________ Its: Mayor_____________________ Date: Date: APPROVED AS TO FORM: ATTEST: By: By: KYLIE J. FINNELL, Bremerton City Attorney ANGELA HOOVER, City Clerk NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: Ron Leimkuhler Vicki Grover Principal Engineering Project Manager KPFF Consulting Engineers City of Bremerton 1601 5th Avenue, Suite 1600 345 6th Street Suite 100 Seattle, WA 98101 Bremerton, WA 98337 R:\Legal\Legal\Forms\FORMS ON COBWEB\Contract Modification Rev. 09 2021.docx Ned Lever Digitally signed by Ned Lever DN: C=US, E=ned.lever@ci.bremerton.wa.us, O=City of Bremerton, OU=Engineering, CN=Ned Lever Date: 2022.08.05 13:50:00-07'00' EAST 11TH STREET AND PERRY AVENUE DESIGN SCOPE OF WORK AMENDMENT 4 This amendment supplements the existing CONSULTANT agreement with the City of Bremerton for the East 11th Street and Perry Avenue project. Services performed under this amendment will be invoiced at current Consultant rates. Project Description The following is revised. Schedule • Project Construction Advertisement Q2 2022 • Project Construction Completed by Summer 2023 Task 1: Project Management Add the following section. 1.6 Contract Administration – Construction Phase The CONSULTANT shall develop and manage the project scope, schedule, and budget and execute contract administration activities as needed to complete the scope of work during the Construction Phase of the project. Monthly invoices for work completed to date shall be submitted to the City with cost tracking at the Task Level. The CONSULTANT shall prepare SUBCONSULTANT contracts and manage SUBCONSULTANTS to ensure accurate and timely implementation of the work plan and the appropriate coordination of work activities, including the review of all SUBCONSULTANTS’ work on various project elements. In addition, the CONSULTANT shall conduct reviews of SUBCONSULTANTS’ progress and invoices. Assumption(s): 1. Construction period will last 12 months and have two months of close out Deliverable(s): 1. Scope, schedule, and budget updates as warranted (electronic PDF) 2. Monthly progress report summary (electronic PDF) 3. Monthly invoices (electronic PDF) Task 7: Construction Management - DSDC 7.1 Design Services During Construction This section is revised as follows. The CONSULTANT shall provide design support during construction (DSDC) services. Activities may include: • CONSULTANT (one staff member) shall attend up to Forty (40) construction team meetings of one hour in duration via a virtual meeting platform • Responding to up to thirty Requests For Information (RFI) from the CONTRACTOR. • Review of up to fifteen CONTRACTOR proposals and submittals. • Attending up to three construction challenge resolution meetings at the site. • Developing and transmitting up to ten design change orders with approximately four engineered drawings or exhibits per change order. • Performing up to five field visits to observe CONTRACTOR operations and construction of key work elements, including o Illumination systems and foundations (Illumination Designer) o Modular wetlands (KPFF Staff) o Soil cell installation and soil placement / Or Urban treatments (Landscape Architect) CONSULTANT shall communicate directly with the project’s construction management team and shall copy City staff on all communications with the construction management team. The project’s construction management team shall review material submittals from the Contractor and will not require designer review, except in specialty areas such as landscaping, soil cells, urban features and illumination. Assumption(s): 1. Construction period from NTP to physical completion shall last 12 months 2. Design modifications shall be stamped and sealed by a professional engineer 3. DSDC budget does not include developing design change orders to incorporate decorative illumination system design modifications proposed by the Contractor or substitution of modular wetland vendor types. Consultant may utilize DSDC budget to provide these services after consultation with City on priority DSDC needs. Deliverable(s): 1. Design change orders, submittal responses, support documentation and meeting participation City of Bremerton - East 11th and Perry Project Amendment 4 Proposed Fee Total Task Task Name Fee KPFF HDR HBB 1.6 Contract Administration - Construction Phase 11,579.03$ 9,170.00$ 1,505.10$ 903.93$ 7.1 Design Services During Construction 68,544.58$ 56,885.00$ 4,441.46$ 7,218.12$ KPFF Travel / Reimbursables 500.00$ HBB Travel/Reimburasables 100.00$ Total 80,723.61$ by firm KPFF (including reimbursables)66,555.00$ HDR (including reimbusables)5,946.56$ HBB (Including reimbusables)8,222.05$ Sub Total 80,723.61$ Management Reserve @10%8,072.36$ Total - 88,795.97$ Prepared by :John McMillan Date:7/7/2022 Firm Principal Project Manager Senior Engineer III Senior Engineer II Senior Engineer I Engineer II Engineer I Cad Lead CAD Drafter Project Coordinator Task # Task Name Proposed Fee 215.00$ 185.00$ 190.00$ 180.00$ 145.00$ 115.00$ 100.00$ 127.00$ 77.00$ 95.00$ 1.6 Contract Administration - Construction Phase 9,170.00$ 28 42 7.1 Design Services During Construction 56,885.00$ 20 95 120 50 80 Total 66,055.00$ 20.0 123.0 0.0 120.0 50.0 0.0 0.0 0.0 80.0 42.0 REIMBURSABLES Item Quantity Unit Unit Cost Totals KPFF Travel / Ferry Allowance 1.00$ LS 500.00$ 500.00$ Notes: Rates updated to 2022 KPFF all inclusive rates Assumes Task 1.5 14 invoices 2 hours PM and 4 hours Project Coordinator Task 7.1 Weekly Construction Meetings 40 times - 1 hour each 40 hours PM 25 RFI's 2 hours per RFI 50 hours Senior Engineer I Other RFIs done by other Consultants 10 Contractor Submittals to Review 2 hours per submittal 20 hours Senior Engineer II Other Consultants review 5 submittals 10 change orders 2 hours Principal, 4 hours PM, 8 Hours Senior Engineer II, 10 hours CAD Field Review of Construction Issues 3 trips to Bremerton - 5 hours each way 15 hours Senior Engineer / PM Modular Wetland Review 2 Trips to Bremerton - 5 hours each way 10 hours senior engineer II Quality Management & Client Support ~10% of Hours 10 hours senior engineer II Prepared by John McMillan 7/7/2022 2022 all inclusive Rate Principal 215.00$ Project Manager 185.00$ Senior Engineer III 190.00$ Senior Engineer II 180.00$ Senior Engineer I 145.00$ Engineer II 115.00$ Engineer I 100.00$ Cad Lead 127.00$ CAD Drafter 77.00$ Project Coordinator 95.00$ KPFF Bremerton East 11th and Perry Amendment 4 Hour Fee Back Up 20 hour Principal, 40 hours PM, 80 hours Senior Engineer II, 80 hours CAD Drafter Senior PM Project Accountant Sr Engineer Task # Task Name 215.43$ 134.28$ 178.18$ 1.6 Contract Administration - Construction Phase 1,505.10$ 2 8 7.1 Design Services During Construction 4,441.46$ 14 8 Total 5,946.56$ 16.0 8.0 8.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Hours 32.0 Includes 1 field trip to review illumination installations Response to several RFI's Correspondence with Contractor and CM team for illumination system direction and review of shop drawings/illumination system submittals Attendance at select coordination meetings HDR Bremerton East 11th and Perry Amendment 4 Hour Fee Back Up Fee Proposal East 11th & Perry Hough Beck & Baird Description Notes Principal Project Manager Design Staff Comp. Tech Staff Business Management Total Hours Total Direct Salary Cost Task 1 Project Management 1.6 Contract Administration - Construction Phase 1 6 7 903.93$ Task 7 Construction Management - DSDC 7.1 Design Services During Construction Responding to Requests For Information (RFI)10 10 20 2,473.50$ Review of Submittals 8 4 1,583.04$ Attend virtual meetings (up to 2)2 2 296.82$ Change Orders (up to 2)2 2 4 8 16 1,677.48$ Field Visits 8 1,187.28$ -$ 2.0 31 18 8 6 45 8,122.05$ 168.65$ 148.41$ 98.94$ 80.95$ 125.92$ Sub-Totals 337.30$ 4,600.71$ 1,780.92$ 647.60$ 755.52$ 8,122.05$ REIMBURSABLES Item Quantity Unit Unit Cost Sub-Totals Totals Reproduction 1 LS -$ -$ -$ Mileage/Travel 1 LS 100.00$ 100.00$ 100.00$ Courier 0 Each -$ -$ -$ 0 Each -$ -$ -$ 0 Each -$ -$ -$ 0 Each -$ -$ -$ 0 LS -$ -$ -$ 0 Each -$ -$ -$ Total 100.00$ Hough Beck & Baird Total Project Costs 8,222$ Includes Field review of soil cells - urban design treatments Amendment 4 7/7/2022 Total Hours per person Current Hourly Rates Direct Salary Cost (DSC) AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Professional Services Agreement with SCJ Alliance for Construction Management Services for the East 11th Street and Perry Avenue Reconstruction Project Study Session Date: August 24, 2022 COUNCIL MEETING Date: September 7, 2022 Department: PW&U Engineering Presenter: Vicki Grover Phone: (360) 473-2317 SUMMARY: In August, the City awarded a construction contract to Sound Pacific Construction LLC, for the reconstruction of East 11th Street from Pitt Avenue to Perry Avenue, and on Perry Avenue from East 11th Street to East 17th Street. This agreement will provide construction management support during the construction phase of the project and is in the amount of $719,312.22. The scope of work includes a full-time inspector, and part time resident engineer, and administrative support. ATTACHMENTS: 1) Professional Services Agreement with SCJ Alliance FISCAL IMPACTS (Include Budgeted Amount): This project is in the Transportation Capital 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 the Professional Services Agreement with SCJ Alliance for the East 11th Street and Perry Avenue Reconstruction Project in the amount of $719,312.22; 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 PROFESSIONAL SERVICES AGREEMENT Construction Management Services for East 11th & Perry Avenue Reconstruction Project The City of Bremerton (“City”) and SCJ Alliance (“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 July 27, 2022, 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 set forth in Exhibit A; provided however, that additional time shall be granted by the City for excusable delays or extra work as provided for in Section X.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 $ 719,312.22. Consultant’s charges and bills shall conform to the fee schedule attached hereto as Exhibit B 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 B. 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 B. 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. Page 1 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 Page 2 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 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 Page 3 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 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.Excess Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate; and 4.Professional Liability insurance with limits no less than $1,000,000 limit per occurrence/claim; and 5.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. Page 4 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 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 Lacey, 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 Page 5 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 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 on the jobsite and at its offices in Lacey, 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: Vicki Grover Attn: Daniel Clark City of Bremerton SCJ Alliance 345 6th Street, Suite 100 8730 Tallon Lane NE, Suite 200 Bremerton, WA 98337-1891 Lacey, WA 98516 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. Page 6 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 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. Page 7 of 7 Bremerton/SCJ Alliance Construction Management Services for East 11th & Perry Avenue Reconstruction Project Rev. 09/2021 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. CITY: CONSULTANT: CITY OF BREMERTON SCJ ALLIANCE By: By: Print Name: Greg Wheeler Print Name: Its: Mayor Its: Date: Date: APPROVED AS TO FORM: ATTEST: By: By: Kylie J. Finnell, Bremerton City Attorney Angela Hoover, City Clerk R:\Legal\Legal\Forms\FORMS ON COBWEB\Professional Services Agreement Rev. 09 2021.docx 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 Office 360.352.1465 Fax 360.352.1509 scjalliance.com Construction Management Services Scope of Work East 11th Street & Perry Avenue Complete Streets Project Prepared For: City of Bremerton, Vicki Grover, Project Manager Prepared By: Daniel Clark, Construction Management Manager Date Prepared: July 27, 2022 I.INTRODUCTION This scope of work will provide construction management services for the construction contract to complete 11th & Perry Project. The Consultant shall observe the construction of the project for compliance with the Contract Documents contract plans, specifications, and estimate), as may be amended or revised, and administer project documentation. The following scope of services and associated costs are based upon the assumptions outlined below. General Assumptions: The level of service and fee is based on project duration of 210 contract days plus two weeks (10 days) startup. The proposed project team will include part‐time resident engineer, part‐time documentation specialist, full‐time inspector. Team also includes sub‐consultants to provide services for materials testing and public outreach. SCJ will use the Record of Materials (ROM) developed by the City. This scope of services provides the administration of the ROM and the scheduling of required materials testing. The City will review and execute insurance documents, bonds, payments to the contractor and the Construction Contract. II.SCOPE OF WORK Phase 1 Project Management Provide overall project management, coordination with the city, progress reporting, and invoicing. This effort will include the following elements. Task 1 Management 1)Management: Organize and plan work for project staff. Prepare project instructions on contract administration procedures to be used during construction. EXHIBIT A East 11th Street & Perry Avenue Complete Streets Project July 27, 2022 Page | 2 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 Office 360.352.1465 Fax 360.352.1509 scjalliance.com Task 2 Monthly Invoicing 1) Monthly Invoicing: Review monthly expenditures and CM team scope activities. Prepare and submit invoices describing CM services provided each month. Phase 2 Construction Inspection The Consultant will provide one inspector during construction activities and other tasks to monitor the progress of the work. The Inspector will prepare the daily inspection reports and working days reporting on a weekly basis. Task 1 Construction Inspection: 1) Construction Inspection: Perform the following daily activities: Observe technical conduct of the construction, including providing day‐to‐day contact with the contractor, City, utilities, and other stakeholders, and monitor for adherence to the Contract Documents. The Consultant’s personnel will act in accordance with Sections 1‐05.1 and 1‐05.2 of the Standard Specifications as assistants and Inspector. Observe material, workmanship, and construction areas for compliance with the Contract Documents and applicable codes and advise the contractor of noncompliance. Notify the City of any non‐ conforming work observed. Document material delivered to the job site in accordance with the Contract Documents. Prepare daily inspection reports, recording the contractor’s operations as observed by the Consultant, including quantities of work placed that day, contractor’s equipment and crews, and other pertinent information. Facilitate resolution of questions which may arise as to the quality and acceptability of materials furnished, work performed, and rate of progress of work performed by the contractor. Establish communications with adjacent property owners. Directly respond to questions from property owners and the public in addition to the communication provided by Stepherson & Associates Communications. Monitor contractor compliance with the city NPDES permit on the Project. Prepare field records. Collect and calculate delivery tickets and scaleman’s daily reports of aggregate. Tickets will be initialed with correct bid item and stationing identified (Construction Manual 10‐2). Attend and actively participate in regular on‐site weekly construction meetings on site or at Norm Dicks 5th floor. Take digital photographs during construction and record locations. Punch list: Upon substantial completion of work, coordinate with the City and affected agencies, to prepare a ‘punch list’ of items to be completed or corrected. Coordinate final inspection. Substantial Completion: Upon substantial completion of work, the City to perform a project inspection and develop a comprehensive list of deficiencies or ‘punch list’ of items to be completed. City to issue substantial completion. East 11th Street & Perry Avenue Complete Streets Project July 27, 2022 Page | 3 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 Office 360.352.1465 Fax 360.352.1509 scjalliance.com Understanding: Consultant will provide observation services for the days/hours that the contractor’s personnel are on‐ site. It is assumed the contractor will work normal 40‐hour work weeks. For this project, the “normal” work week may occur at night. SCJ does not differentiate day shift from night shift. However, if the contractor works a double shift (both day and night) within a single 24‐hour period this will constitute two working days. SCJ’s hours for inspection are based on one shift for number of working days allowed per Contract. The Consultant’s monitoring of the contractor's activities is to ascertain whether work is performed in accordance with the Contract Documents In the case of noncompliance, Consultant will notify the City of the non‐conforming work. Deliverables: Daily Inspection Reports with project photos Monthly field note records to be used for payment to Contractor that show daily quantities of units installed Punch List Review of test reports for compliance Issue of substantial and final completion – City to issue Phase 3 Construction Administration Task 1 Construction Administration 1) Document Control: Original documentation will be housed at the Consultant’s office and filed in accordance with standard filing protocol. A copy of working files will be maintained in the field office. Document files will contain the following: Final Estimate Comparison of Preliminary and Final Quantities Final Records Record of Material Samples and Tests Materials Certification Affidavit of Wages Paid Release for the Protection of Property Owners and General Contractor Certified Payroll 2) Project Coordination: Liaison with City, contractor, Engineer, utilities, and property owners on a regular basis to discuss project issues and status. 3) Plan Interpretations: Facilitate technical interpretations coming from the city of the plans, specifications, and Contract Documents, and evaluate requested deviations from the approved design and/or specifications. Coordinate with the City for resolution of issues involving scope, schedule, and/or budget changes. East 11th Street & Perry Avenue Complete Streets Project July 27, 2022 Page | 4 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 Office 360.352.1465 Fax 360.352.1509 scjalliance.com 4) Weekly Meetings: Lead weekly meetings, including preparation of agenda, meeting minutes, and distribution of notes to attendees. Track outstanding issues on a weekly basis. Review the contractor’s Weekly Statement of Working Days and forward to the city for acceptance. 5) Initial Schedule Review: Review the schedule provided by the contractor for conformance with the Contract Documents. 6) Lump Sum Breakdown: Evaluate the contractors’ Schedule of Values for lump sum items. Review the Contract Price allocations and verify that such allocations are made in accordance with the requirements of the Contract Documents. Calculate Lump Sum Breakdowns for payment each month using detailed data provided by the contractor. 7) Monthly Pay Requests: Prepare monthly requests for payment, review with the City and the contractor and recommend for City approval. Use City‐provided templates for pay estimates 8) Monthly Schedule Review: Review the contractor’s updated schedule and compare with field‐observed progress, as described in Section 1‐08 of the Special Provisions. In addition, analyze the contractor‐ provided schedule updates and review the schedule for delays and impacts. Provide input to the contractor in the development of recovery schedules prepared by the contractor to address delays. 9) Certified Payroll: Check the contractor's and subcontractor’s certified payroll per State Prevailing Wage Requirements. Tracking of payroll shall consist of recording each payroll received from the contractor and subcontractors and checking pay rates against the Contract requirements. 10) Record of Materials (ROM): The City will prepare the ROM based on Contract Documents for use on the project. SCJ will maintain the ROM and track the materials delivered to the site including manufacturer/supplier, approved RAM’s, QPL items, material compliance documentation, and other required documentation. 11) Submittals: Review submittals and coordinate the review by others of shop drawings, samples, traffic control plans, test reports, and other submittals from the contractor for compliance with the Contract Documents. Transmit submittals to the City for their review and approval. Log and track submittals on the ROM. 12) Request for Information (RFI): Facilitate review and response to RFI’s. Log and track RFI’s. 13) Weekly Statement of Working Days: Prepare and issue weekly statement of working day report. 14) Subcontractor Documentation: Process required subcontractor documentation and recommend for approval by the City. Verify and log Requests to Sublet. This includes checking the System Award Management System (SAMS), verifying business licensing, reviewing insurance documentation, verifying city business licensing, and checking Intent to Pay Prevailing Wage and Affidavit of Wages Paid. Log subcontractor documentation. Track required DBE and Training Goals. 15) Cost Projections: Prepare up to two cost at complete projections for the construction. Projections to be based on the current amounts paid to date, pending change orders, quantity projections, and other information. Prepare a memo to the file at substantial completion outlining the over/under‐runs by bid item. 16) Record Drawings: Review record drawings prepared by the contractor and prepare a conformed set of project record drawings based on the contractor provided information and inspection notes. Verify record East 11th Street & Perry Avenue Complete Streets Project July 27, 2022 Page | 5 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 Office 360.352.1465 Fax 360.352.1509 scjalliance.com drawings monthly as part of the progress payment to the contractor. Upon project completion, check contractor‐provided markups for completeness and supplement with inspection information. The Consultant will provide marked‐up plan sheets with showing the contractor’s and inspector’s as‐built information. Revisions to the CAD drawings are not included. 17) State Audit Assistance: Assist Client staff during audits performed by WSDOT Local Programs and make corrections to project documentation. The Consultant will perform a QA/QC review of the documents with the City’s project manager at 15%, 50%, 70%, and 100% project completion. 18) Physical Completion Letter: Following completion of all punch list work, prepare the physical completion letter for the city to send to the contractor and recommend that the city accept the project. 19) Project Closeout: Transfer project documents to the city for permanent storage. At Physical Completion Schedule review comments As‐built schedule Submittal Log RFI Log Completed Record of Materials Meeting agendas and notes Monthly Pay Estimates Subcontractor Packets Cost Projection Physical Completion Letter Final Project Documents Understanding: It is assumed that audit supports consists of a maximum of 8 hours. Phase 4 Material Testing ‐ Subconsultant Task 1 Coordination & Tracking 1) Coordinate with the contractor and the HWA to schedule testing of materials in the field. Task 2 Material Testing 1) SCJ will subcontract with HWA Geosciences, Inc. to perform material testing. Testing will be done in accordance with the Contract Documents. Phase 5 Public Outreach ‐ Subconsultant Task 1 Public Outreach 1) SCJ will subcontract with Stepherson & Associates Communications to develop an overall project communication plan based on the Contractor’s approved project communication plan. East 11th Street & Perry Avenue Complete Streets Project July 27, 2022 Page | 6 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 Office 360.352.1465 Fax 360.352.1509 scjalliance.com Phase 98 Management Reserve Fund The Management Reserve shall be used only upon written authorization from City project manager. This reserve shall only be used when original contract funds have been depleted and circumstances beyond the Consultant’s control have extended contract time or the original scope of work has changed. The fee for Management Reserve has been set at $20,000.00. Phase 99 Expenses Expenses include items such as mileage, plan reproduction, copies, etc. SCJ Alliance Client: Project: Job #:Template Version: File Name: 220201 City of Bremerton Utility Contacts.xlsx Contract Type: Consultant Fee Determination DIRECT SALARY COST Classification Hours Direct Hourly Rate Amount Principal 0.0 $95.00 $0.00 RE 3 Construction Resident Engineer 1,273.0 $75.96 $96,697.08 Construction Office Engineer 630.0 $71.35 $44,950.50 CI 4 Construction Inspector 1,760.0 $55.00 $96,800.00 Total Direct Salary Cost $238,447.58 OVERHEAD Overhead Rate: 151.79% Direct Salary Cost:$238,447.58 Overhead Cost $361,939.58 FIXED FEE Fixed Fee Rate: 31.00% Direct Salary Cost:$238,447.58 Fixed Fee Cost $73,918.75 TOTAL SALARY COST Total Salary Cost $674,305.91 SUBCONSULTANTS Yes $10,000 $10,000 x Subconsultant Fee Subtotal:$0 $20,000.00 Q Subconsultant Markup:10%$2,000.00 REIMBURSABLE EXPENSES Copies, Printing, etc. 0.1% of the Direct Salary Costs $674.31 Bridge Toll $1,520 Mileage 1,400 miles at $0.580 per mile $812.00 Expenses Subtotal:$3,006.31 Expenses Markup:0%$0.00 SUBTOTAL (SALARY, SUBCONSULTANTS AND EXPENSES) Subtotal (Salary, Subconsultants and Expenses)$699,312.22 MANAGEMENT RESERVE FUND (MRF) Management Reserve: $20,000 $20,000.00 Total Estimated Budget: $719,312.22 WSDOT City of Bremerton Bridge Toll Consultant Fee Determination Summary ‐ Exhibit D‐1 East 11th Street & Perry Avenue Complete 4/4/20220702 Stepherson & Associates PHASE 5 Public Outreach ‐ Subconsultant Stepherson & Assoc HWA PHASE 4Material Testing ‐ Subconsultant HWA 8/5/2022 Page 1 EXHIBIT B ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 8/4/2022 License # 0C36861 25674 Shea, Carr & Jewell, Inc. dba: SCJ Alliance 8730 Tallon Lane NE, Suite 200 Lacey, WA 98516 19046 25623 20443 A 2,000,000 X X 680-3S28842A 6/15/2022 6/15/2023 1,000,000 5,000 2,000,000 4,000,000 4,000,000 1,000,000B BA-3S293103 6/15/2022 6/15/2023 3,000,000A CUP-3S296295 6/15/2022 6/15/2023 3,000,000 10,000 C UB-3S295329 6/15/2022 6/15/2023 1,000,000 N 1,000,000 1,000,000 D Prof/Pollution Liab AEH591920345 6/15/2022 Each Claim 5,000,000 D Prof/Pollution Liab AEH591920345 6/15/2022 6/15/2023 Aggregate 5,000,000 Re: SCJ Project #22-P00505 East 11th Street & Perry Avenue Complete City of Bremerton is Additional Insured with respect to the General Liability per forms attached. General Liability coverage is Primary and Non-Contributory per forms attached. City of Bremerton Attn: Vicki Grover 6th St., Ste. 100 Bremerton, WA 98337 SCJALLI-01 JSENESCALL Seattle-Alliant Insurance Services, Inc. 1420 Fifth Ave 15th Floor Seattle, WA 98101 Melanie Kelly Melanie.Kelly@alliant.com Travelers Property Casualty Company of America Travelers Casualty Insurance Company of Americ Phoenix Insurance Company Continental Casualty Company X 6/15/2023 X X X X X X X THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL GENERAL LIABILITY BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART CG D3 81 09 15 © 2015 The Travelers Indemnity Company. All rights reserved. Includes the copyrighted material of Insurance Services Office, Inc., with its permission Page 1 of 2 1.The following is added to SECTION II – WHO IS AN INSURED: Any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Coverage Part, but: a.Only with respect to liability for "bodily injury", "property damage" or "personal injury"; and b.If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies, or in connection with premises owned by or rented to you. The person or organization does not qualify as an additional insured: c.With respect to the independent acts or omissions of such person or organization; or d.For "bodily injury", "property damage" or "personal injury" for which such person or organization has assumed liability in a contract or agreement. The insurance provided to such additional insured is limited as follows: e.This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this Coverage Part. f.This insurance does not apply to the rendering of or failure to render any "professional services". g.In the event that the Limits of Insurance of the Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the insurance provided to the additional insured shall be limited to the limits of liability required by that "written contract requiring insurance". This endorsement does not increase the limits of insurance described in Section III – Limits Of Insurance. h.This insurance does not apply to "bodily injury" or "property damage" caused by "your work" and included in the "products- completed operations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that occurs before the end of the period of time for which the "written contract requiring insurance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 2.The following is added to Paragraph 4.a. of SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS: The insurance provided to the additional insured is excess over any valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover. However, if you specifically agree in the "written contract requiring insurance" that this insurance provided to the additional insured under this Coverage Part must apply on a primary basis or a primary and non-contributory basis, this insurance is primary to other insurance available to the additional insured which covers that person or organizations as a named insured for such loss, and we will not share with the other insurance, provided that: (1)The "bodily injury" or "property damage" for which coverage is sought occurs; and (2)The "personal injury" for which coverage is sought arises out of an offense committed; after you have signed that "written contract requiring insurance". But this insurance provided to the additional insured still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured when that person or organization is an additional insured under any other insurance. COMMERCIAL GENERAL LIABILITY Page 2 of 2 CG D3 81 09 15© 2015 The Travelers Indemnity Company. All rights reserved. Includes the copyrighted material of Insurance Services Office, Inc., with its permission 3.The following is added to Paragraph 8., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS: We waive any right of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal injury" arising out of "your work" performed by you, or on your behalf, done under a "written contract requiring insurance" with that person or organization. We waive this right only where you have agreed to do so as part of the "written contract requiring insurance" with such person or organization signed by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury" offense is committed. 4.The following definition is added to the DEFINITIONS Section: "Written contract requiring insurance" means that part of any written contract under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs and the "personal injury" is caused by an offense committed: a.After you have signed that written contract; b.While that part of the written contract is in effect; and c.Before the end of the policy period. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: August 24, 2022 Public Works Agreement with Stripe Rite, Inc. for 2022–2024 Unit Priced Contract for the Preservation of City-Wide Pavement Markings COUNCIL MEETING Date: September 7, 2022 Department: Public Works & Utilities Presenter: Dave Carter Phone: (360) 473-5333 SUMMARY: The City annually programs pavement markings and bids the work each year, however, for 2022 we have prepared a Unit Priced Contract that follows RCW 35.22.620. Using this approach, we will award a three-year contract that establishes the unit price of each of the materials to be incorporated into the work and will execute annual task orders that define the road to be marked; the 2022 work is generally focused on Arterial Roadways. ATTACHMENTS: 1) 2022-2024 Unit Priced Public Works Agreement for the Preservation of City-Wide Pavement Markings 2) Bid Results; 3) Site Plan FISCAL IMPACTS (Include Budgeted Amount): This contract is funded by Transportation Capital Funding. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Public Works Agreement with Stripe Rite, Inc. for the 2022-2024 Unit Priced Contract for the Preservation of City-Wide Pavement Markings” in the amount not to exceed $658,553.40, including sales tax; and authorize the Mayor to finalize and execute the contract with substantially the same terms and conditions presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/09/2021 A4 Updated 2022 – 2024 Unit Priced Contract for the Preservation of City-Wide Pavement Markings PUBLIC WORKS AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation (“City”), and Stripe Rite Inc. (“Contractor”), whose mailing address is 1813 137th Ave E, Sumner, WA 98390. The parties agree as follows: 1. CONTRACTOR SERVICES. The Contractor shall perform the following services for the City: 2022-2024 Preservation of City-Wide Pavement Markings. Contractor shall complete the WORK as specified or indicated in the CITY’s Contract Documents entitled ________________________________________________________________________. 2. TIME OF COMPLETION. The WORK shall obtain Physical Completion within the number of working days established under each assigned Work Order. 3. COMPENSATION. The City shall pay the Contractor for completion of the WORK in accordance with the Contract Documents. The City has established this contract as a Unit Priced Contract for a three- (3) year period with a possible additional option year. Work under this contract will be authorized by Work Order using a Work Order form that will describe the work including total quantities, associated unit prices, and a total Work Order Price. Unit prices shall be based on the Bid Schedule, including annual adjustment as described in the Proposal Form. 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 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 provisions. Contractor will be required to pay Kitsap County Prevailing Wage Rates current on the bid opening date. The Kitsap County rates are available at the Department of Labor and Industries website. 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, 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). F. Liens. In the event that there are any liens on file against the City of Bremerton, the City of Bremerton shall be entitled to withhold final or progress payments to the extent deemed necessary by the City of Bremerton to properly protect the outstanding lien claimants until proper releases have been filed with the City Clerk 8. CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Contractor’s written claim must include the information set forth regarding protests in Section 7.A.2.a.-e. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete. 9. WARRANTY. The Contractor shall correct all defects in workmanship and materials within one year from the date of the City’s acceptance of the Contract work. When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the Cit y of the defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officer, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with the performance of this agreement, except for injuries and damages caused by the City’s sole negligence. The City’s inspection or acceptance of any of Contractor’s work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor’s negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this agreement. 11. 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 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 D. 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 res pects 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. In the event that the Contractor employs other contractors (sub-contractors) as part of the work covered by this Agreement, it shall be the Contractor’s responsibility to require and confirm that each sub-contractor meets the minimum insurance requirements specified above. The Contractor 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. 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 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 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. M. Mutually Bound. Contractor and Subcontractor are mutually bound by the terms of this agreement. Terms of this agreement will apply to the work of any subcontractor. The Contractor shall assume toward the subcontractor all obligations and responsibilities the Owner, under this agreement, assumes toward the Contractor, and the Subcontractor shall assume toward the Contractor all obligations and responsibilities which the Contractor, under this agreement, assumes towards the Owner. N. Solicitation of Minority Business. Per RCW 35.22.650, Contractor agrees that the contractor shall actively solicit the employment of minority group members. Contractor further agrees that the contractor shall actively solicit bids for the subcontracting of goods or services from qualified minority businesses. Contractor shall furnish evidence of the contractor's compliance with these requirements of minority employment and solicitation. Contractor further agrees to consider the grant of subcontracts to said minority bidders on the basis of substantially equal proposals in the light most favorable to said minority businesses. The contractor shall be required to submit evidence of compliance with this section as part of the bid. 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: 345 6th Street, Suite 100 Bremerton, WA 98337 (360) (360) (facsimile) APPROVED AS TO FORM: Kylie J. Finnell Bremerton City Attorney ATTEST: Angela Hoover, City Clerk AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Study Session Date: August 24, 2022 Reconsider Ordinance No. 5453 amending Chapter 6.32 of the Bremerton Municipal Code entitled “Noise Levels” COUNCIL MEETING Date: September 7, 2022 Department: Mayor’s Office Presenter: Mayor Wheeler Phone: (360) 473-5266 SUMMARY: On August 3, 2022, the City Council unanimously adopted amendments to Chapter 6.32 of the Bremerton Municipal Code entitled “Noise Levels.” On August 11, 2022, Mayor Wheeler exercised the veto authority located in Section 15 of the Charter of the City of Bremerton. The written objections are contained herein. Pursuant to Section 15(5) of the Charter of the City of Bremerton, the City Council shall cause the objections to be entered on the record and proceed to reconsideration of the ordinance. ATTACHMENTS: 1) Written Objections by Mayor Wheeler, 2) Proposed ordinance from Mayor, 3) Parcels affected by ordinance, 4) Maps A, 5) Maps B, 6) Ordinance No. 5453 as adopted by Council on August 3, 2022. FISCAL IMPACTS (Include Budgeted Amount): None. STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. ______ amending Chapter 6.32 of the Bremerton Municipal Code entitled “Noise Levels” as presented by Mayor Wheeler and included herein as Attachment 2. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/02/2018 A5 From:Greg Wheeler To:City Council; Michael Goodnow Cc:Kylie Finnell; Brett Jette; Angela Hoover; Jennifer Hayes; Lori Smith Subject:Noise Ordinance Date:Thursday, August 11, 2022 4:24:32 PM Attachments:Parcels Affected by Noise Ordinance.docx MAPS A.pdf MAPS B.pdf Copy of Text From City Charter Regarding Mayor’s Veto Power. .docx Ordinance No. 5453.pdf Dear City Council, On August 3rd, the City Council unanimously adopted updates to the City's noise regulations, and while this was an important step to take to ensure that the City has enforceable regulations relating to noise levels, the City's administration cannot support this ordinance in its current form. The proposed ordinance establishes a policy that says it seeks to "minimize the exposure of citizens to the physiological and psychological effects of excessive noise and to protect, promote and preserve the public health, safety and welfare" and I believe strongly in this policy. I support the ordinance establishing a standard that if loud noises can be heard at a distance of more than 100 feet, that this should not be permitted during the night and early morning. Unfortunately, the adopted ordinance goes farther, providing an exemption for the City's commercial districts to exceed noise levels until 11pm on Fridays and Saturdays at an increased distance of 200 feet. This is not a minor adjustment to the city’s standard practice of enforcing this code, which has been in place for at least 30 years, but instead represents the potential for a major change of character for businesses and residents who operate and live within or directly adjacent to all commercial zones throughout the city. A change of this magnitude reflects a new direction from the city council that has not been communicated to the public. The City Council drafted these changes to the City's regulations in one of their sub committees, and then sent it to the whole body for action to adopt. There was no analysis done to determine how many properties would be affected by this twofold increase in the acceptable distance for disturbance. There was no broad communication with the public or targeted outreach to affected residents to provide input into the drafting of this new legislation. I believe that it is important for these citizens to know how they may be negatively impacted by this decision. My Administration has analyzed the new regulations and determined that the increase of the noise exemption from 100 to 200 feet has expanded the impact that off-sight noises can have from about 3,100 parcels to 4,200 (an increase of more than 1,000 properties). The increase from the original 50’ noise exemption (which has been in practice for over 30 years) to 200’ impacts more than 1500 properties. These figures only account for properties directly adjacent to commercial zones and do not take into account the hundreds of existing and new residential developments occurring within commercial zones throughout our city. As Mayor I feel that more should have been done for public outreach to our residents before the City Council took action to adopt this ordinance, because our citizens deserve better. It is for these reasons that I am vetoing this legislation. This will be the easiest time to roll this back for further consideration. I would propose that the 200 ft buffer be eliminated in its entirety and replaced with the original 50ft or 100ft as proposed by my administration and set aside the 200ft discussion as a separate issue for the reasons I explained above. The city has not had an ordinance for 2-1/2 years and the current ordinance with the adjustments I am recommending offers a constitutionally legal and enforceable ordinance that strikes a proper balance that protects our neighborhoods and allows for businesses to coexist with neighboring businesses and the surrounding residents that live nearby. Respectfully, Greg Wheeler Mayor City of Bremerton (360) 473-5266 Page 1 of 10 Chapter 6.32 – Noise Levels ORDINANCE NO. ________ AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 6.32 of the Bremerton Municipal Code entitled “Noise Levels.” WHEREAS, the City Council desires to amend and update Chapter 6.32 of the Bremerton Municipal Code, relating to noise levels; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 6.32 of the Bremerton Municipal Code entitled "Noise Levels" is hereby amended to read as follows: Chapter 6.32 NOISE LEVELS 6.32.010 POLICY AND APPLICATION. (a) It is the policy of the City to minimize the exposure of citizens to the physiological and psychological effects of excessive noise and to protect, promote and preserve the public health, safety and welfare. It is the express intent of the City Council to control the level of noise in a manner which promotes commerce; the use, value and enjoyment of property; sleep and repose; and the quality of the environment. (b) The following environments have been identified and approaches adopted: (1) Use of property. The different zoning districts of the City establish lawful uses which can be anticipated to produce noise at certain reasonable levels associated with these uses. The provisions of BMC 6.32.030 utilize thresholds consistent with those set forth in Chapter 70.107 RCW entitled “Noise Control” and Chapter 173-60 WAC entitled “Maximum Environmental Noise Levels” and recognizing that decibel intervals are increased exponentially with each ten MHz of noise generation. The use of property is better suited to the use of noise measuring devices because use is consistent and can be measured at the property line from the property of the complainant. Properly trained and certified City staff or a certified consultant trained in the field of sound level measurement can be utilized in these situations when warranted. Intermittent noises and noise generated for the purpose of annoyance is more sporadic in nature and requires a different approach. The provisions of BMC 6.32.050 entitled “Public Disturbance Noises” are aimed at those situations which are difficult or impossible to address through measurement pursuant to BMC 6.32.030 entitled “Environmental Sound – Maximum Permissible Levels”. In administering and enforcing the provisions of this chapter, the City desires to coordinate the application of these two approaches. The content of the speech shall not be considered against any person in determining a violation of this Chapter. (2) Similarly, public uses of the rights-of-way, such as parades, and First Amendment speech such as a lawful demonstration should be differentiated from pure commercial speech. Pure commercial speech has been defined by the US Supreme Court as speech “which does no more than propose a commercial transaction.” Such speech while Page 2 of 10 Chapter 6.32 – Noise Levels protected is susceptible of regulation provided that the City address the legitimate public concern of noise pollution in a thoughtful and targeted manner. (3) Finally, the City recognizes that the use of bells, chimes and carillons may constitute a call to worship and accordingly such a use is protected as religious speech under the First Amendment. In addition, the historic use of a carillon by the City of Bremerton is an established historical use appropriate within the zone in which it is located. These noises are appropriate when limited by reasonable time, place and manner restrictions. (c) The provisions of this chapter shall be administered and enforced by the Administrator defined in BMC 6.32.020(a) below. 6.32.010020 DEFINITIONS. All technical terminology used in this chapter not defined herein shall be interpreted in conformance with American National Standards Institute Specifications, Sections 1.1-1960 and 1.4-1971. For purposes of this chapter, the words and phrases used herein shall have the meaning indicated below: (a) "Administrator" means the Chief of Police or the Director of the Department of Community Development, Mayor of the City of Bremerton, or his or her designee as applicable, or their designee. (b) "db(A)" means a sound level, measured in decibels, using the A frequency- weighting network of a sound-level meter. (c) “City” means City of Bremerton. (cd) "District" means the land use zones to which the provisions of this chapter apply. For the purposes of this chapter, the following noise control districts shall be established, which include land use zones designated in the Bremerton zoning and subarea plan ordinances, as follows: Noise Control District Land Use Zones (pursuant to BMC Title 20 and Subarea Plans) District I R-10, R-10M18, R-2040, East Park Subarea Plan (SAP) District II NB, BC, DCC, DW, DC, EC, INST, GC, Bay Vista SAP, Downtown SAP, Gorst SAP, Eastside Village SAP District III I, CUL, WS, FC, PSIC SAP (de) "Emergency work" means: (1) Work made necessary to restore property to a safe condition following a public emergency consistent with BMC Chapter 2.26. calamity; (2) Work required to protect persons or property from imminent exposure to danger; or (3) Work by private or public utilities for providing or restoring immediately necessary utility service. Page 3 of 10 Chapter 6.32 – Noise Levels (f) “Enforcement Officer” means the Administrator or a city, county or state law enforcement officer, City code enforcement officer or other official designated or authorized by the Administrator to enforce the provisions of this chapter. (g) “Impulsive sound” means sound having the following qualities: the peak of the sound level is less than one (1) second and short compared to the occurrence rate; the onset is abrupt; the decay rapid; and the peak value exceeds the ambient level by more than ten (10) dB(A). (h) “Leq” means the equivalent sound level, which is the constant sound level in a given time period that conveys the same sound energy as the actual time-varying A-weighted sound. The applicable time period for the Leq must be specified. (i) “Lmax” means the maximum sound level over a measurement interval determined by using a sound level meter set to “Fast” response time. (ej) "Motorcycle" means any motor vehicle having a saddle for the use of the rider and designed to travel on not more than three (3) wheels in contact with the ground, except farm tractors and such vehicles powered by an engine of less than five (5) horsepower. (fk) "Motor vehicle" means any vehicle which is self-propelled, used primarily for transporting persons or property upon public highways, and required to be licensed under RCW 46.16.010 or a motorized transportation device as defined in BMC 10.13.010. (Aircraft, watercraft, and vehicles used on rails or tracks are not motor vehicles as that term is used herein.) (gl) "Noise" means the intensity, duration and character of sounds from any and all sources. The terms “noise” and “sound” can be used interchangeably for purposes of this chapter. (hm) "Person" means any natural person,individual firm, association, partnership, corporation or any other entity, public or private. (n) “Plainly Audible” means any sound for which any of the content of that sound, such as, but not limited to, comprehensible musical rhythms, is communicated to a person using their unaided hearing faculties. For the purposes of enforcement of this code, the detection of any component of sound, including, but not limited to, the rhythmic bass by a person using their unaided hearing faculties is sufficient to verify plainly audible sound. It is not necessary for such person to determine the title, specific words or artist of music, or the content of any speech. (i) "Police officer" means a duly appointed city, county or State law enforcement officer. (jno) "Property boundary" means the survey line at ground surface which separates real property owned, rented or leased by one or more other persons and its vertical extension. (kop) "Receiving property" means real property within which sound originating from sources outside the property is received. (pq) “Sound” means vibrations that travel through the air or another medium and are audible to the human ear. The terms “sound” and “noise” can be used interchangeably for purposes of this chapter. (lqr) "Sound level" means a weighted sound pressure level obtained by the use of a sound level meter and weighted as specified in American National Standards Institute Specifications (ANSI), Section 1.4-19711983, as it now exists or is hereafter amended.. (mrs) "Sound level meter" means a sound-level measuring device, either Type I or Type II, as defined by American National Standards Institute Specifications, Section 1.4-19711983, as it now exists or as hereafter amended.. (nst) "Weekend" means Saturday and Sunday or any legal holiday. Page 4 of 10 Chapter 6.32 – Noise Levels 6.32.040030 ENVIRONMENTAL SOUND – MAXIMUM PERMISSIBLE LEVELS. (a) It is unlawful for any person to cause or permit noise from any source located within the City of Bremerton to intrude into the property of another which exceeds the maximum or permissible exterior noise level limits set forth below: TABLE I – Exterior noise level limits District of Sound Source District Receiving Property Within the City of Bremerton I II III I 55 dB(A) 57 dB(A) 60 dB(A) II 57 dB(A) 60 dB(A) 65 dB(A) III 60 dB(A) 65 dB(A) 70 dB(A) (b) The exterior noise level limits are based on the Leq, as defined in BMC 6.32.020, during the measurement interval, using a minimum interval of one (1) minute for a constant sound source, or a one-hour measurement for a non-continuous sound source. The standard of measurement shall be a one hour Leq. Leq may be measured for times not less than one (1) minute to project an hourly Leq. (1) During a measurement interval, Lmax, as defined in BMC 6.32.020, may exceed the exterior sound level limits shown in Table I by no more than 15 dB(A). (2) For any source of sound that is impulsive, as defined in BMC 6.32.020, and not measured with an impulse sound level meter, the exterior sound level limits established by Table I are reduced by 5 dB(A). (bc) Between the hours of 10:00 p.m. and 7:00 a.m. the noise limitations of the foregoing table shall be reduced by ten (10) dBA for receiving property within District I and District II. (cd) At any hour of the day or night the applicable noise limitations in (a) and (bc) above may not be exceeded for any receiving property. by no more than: (1) Five (5) dBA for a total of fifteen (15) minutes in any one (1) hour period; or (2) Ten (10) dBA for a total of five (5) minutes in any one (1) hour period; or (3) Fifteen (15) dBA for a total of one and one-half (1.5) minutes in any one (1) hour period. (de) Exemptions. (1) The following shall be exempt from the provisions of subsections (a) and (bc) between the hours of 7:00 a.m. and 10:00 p.m.: i. Sounds originating from residential property relating to temporary projects for the maintenance or repair of homes, grounds and appurtenances. ii. Sounds created by the discharge of firearms on authorized shooting ranges. Page 5 of 10 Chapter 6.32 – Noise Levels iii. Sounds created by blasting conducted in compliance with WAC 296-52- 64005. iv. Sounds created by aircraft engine testing and maintenance not related to flight operations; provided, that aircraft testing and maintenance shall be conducted at remote sites whenever possible. v. Sounds created by the installation or repair of essential utility services. (2) The following shall be exempt from the provisions of subsection (cb). i. Noise from electrical substations and existing stationary equipment used in the conveyance of water, waste waterwastewater, and natural gas by a utility. ii. Noise from existing industrial installations which exceed the standards contained in these regulations but which comply with or are authorized by the State Department of Ecology pursuant to Chapter 70.107 RCW entitled “Noise Control”, Chapter 173-58 WAC entitled “Sound Level Measurement Procedures” and Chapter 173-60 WAC entitled “Maximum Environmental Noise Levels”.and which, over the previous three years, have consistently operated in excess of fifteen (15) hours per day as a consequence of process necessity and/or demonstrated routine normal operation. Changes in working hours, which would affect exemptions under this regulation, require approval of the State Department of Ecology. (3) The following shall be exempt from the provisions of subsections (a) and (cb), except insofar as such provisions relate to the reception of noise within District I and District II between the hours of 10:00 p.m. and 7:00 a.m. i. Sounds originating from duly permitted temporary construction sites as a result of construction activity. ii. Sounds originating from forest harvesting and silvicultural activity. (4) The following shall be exempt from all provisions of subsections (a) and (cb): i. Sounds created by motor vehicles when regulated by Chapter 173- 62 WAC. ii. Sounds originating from aircraft in flight and sounds that originate at airports which are directly related to flight operations. iii. Sounds created by surface carriers engaged in interstate commerce by railroad. iv. Sounds created by warning devices not operating continuously for more than five (5) minutes, or bells, chimes, and carillons which do not exceed five (5) minutes in an hour when operated between the hours of 7:00 a.m. and 10:00 p.m. v. Sounds created by safety and protective devices where noise suppression would defeat the intent of the device or is not economically feasible. vi. Sounds created by emergency equipment and work necessary in the interests of law enforcement or for health, safety or welfare of the community. vii. Sounds originating from motor vehicle racing events at existing authorized facilities. viii. Sounds originating from officially sanctioned parades and other public events when duly permitted and conducted within the public right-of-way or on a site designated by the applicable permit. ix. Sounds emitted from petroleum refinery boilers during start-up of said boilers; provided, that the start-up operation is performed during daytime hours whenever possible. Page 6 of 10 Chapter 6.32 – Noise Levels x. Sounds created by watercraft. xi. Sound created by the discharge of firearms in the course of hunting. ix. xii. Sounds created by motor vehicles, licensed or unlicensed, when operated off public highways except when such sounds are received in District I and District II. x. Fireworks lawfully discharged within the City pursuant to Chapter 9.48 BMC. xi. Sounds caused by the emergency repair, routine maintenance, or construction of any public facility, utility, or street approved by the City of Bremerton Public Works and Utilities Department. 6.32.050040 MEASUREMENT OF SOUND. (a) If the measurements of sound are made with a sound-level meter, it shall be an instrument in good operating condition meeting the requirements for a Type I or Type II instrument, as delineated in American National Standards Institute Specifications (ANSI), Section 1.4-19711983, as it now exists or is hereafter amended.. If the measurements are made with other instruments, or assemblages of instruments, the procedure must be carried out in such a manner that the overall accuracy shall be at least that called for in Section 1.4-1971 1983 ANSI for Type II instruments. (b) When the location, distance or technique for measurement of sound is impractical or would yield misleading or inaccurate results, measurements shall be taken at other locations or distances utilizing appropriate correction factors, as specified in the rules promulgated by the Administrator. (c) Where a receiving party is partly within one (1) district and partly within another, the maximum permissible noise level at a point within the property boundary shall be that permitted into a receiving property wholly within the lowest intensity district in which the sound is measured. 6.32.060 POSITION OF ADMINISTRATOR ESTABLISHED. (a) Establishment. The position of administrator is hereby established, and shall be the mayor, or his or her designee. The administrator is authorized and directed to administer and enforce the provisions of this chapter. (b) Qualifications of Administrator. The administrator shall be a person having a working knowledge of acoustics and competent in the field of noise control. The administrator shall have completed instructional guidance provided by the State Department of Ecology or other recognized institution to operate Type I and Type II sound-level meters, and make all computations and calculations necessary to enforce this chapter. (c) Duties of Administrator. The duties of the administrator shall include, but are not limited to: (1) Obtaining assistance from other appropriate city departments and officials; (2) Training law enforcement officers and staff; (3) Purchasing measuring instruments and training inspectors in their calibration and use; (4) Establishing a noise-control field procedures manual providing techniques and procedures for measuring or reducing noise to provide for clarification, interpretation and implementation of this chapter; (5) Investigating citizens’ noise complaint; (6) Issuing orders for the reduction or elimination of noise; Page 7 of 10 Chapter 6.32 – Noise Levels (7) Assisting citizens and city departments in evaluating and reducing the noise impact of their activities; (8) Assisting city planning officials in evaluating the noise component in planning and zoning actions; (9) Instituting a public education program on noise; and (10) Reviewing at least every three years the provisions of this chapter and recommending revisions consistent with technology to reduce noise. 6.32.070 VARIANCE PROCEDURE. (a) A person who owns or is in possession of any property or use, or any process or equipment, may make a request for a variance to the Administrative Hearing Examiner for relief from any provision of this chapter governing the quality, nature, duration or extent of discharge or noise. The application shall be accompanied by such information and data as the Hearing Examiner may require. The Hearing Examiner shall enforce rules and regulations governing the application for and granting of variances, including hearing and notices. A variance or its renewal shall not be the right of the applicant or holder thereof, but shall be at the reasonable discretion of the Hearing Examiner. (b) The variance shall not be granted under this section unless the Hearing Examiner has considered the relevant interests of the applicant, other owners of property likely to be affected, and the general public and finds that all the following facts and conditions exist: (1) That there are exceptional or extraordinary circumstances or conditions applying to the applicant’s property, or intended use thereof, that do not apply generally to other properties in the same noise control district; (2) That such variance is necessary for the preservation and enjoyment of a substantial personal or property right of the applicants possessed by the owners of other properties in the same noise control district; (3) That the authorization of such variance does not endanger public health or safety in the same or adjacent noise control districts; (4) That the granting of such variance will not adversely affect the general policy and purposes of this chapter. (c) In authorizing a variance, conditions regarding noise level, duration, type and other considerations deemed necessary to carry out the policy and purpose of this chapter may be imposed. 6.32.090 APPEAL TO SUPERIOR COURT An appeal of the decision of the Hearing Examiner must be filed with the Superior Court within twenty-one (21) calendar days of the issuance of the decision. 6.32.110050 PUBLIC DISTURBANCE NOISES It is hereby unlawful and declared a public nuisance for any person to cause, or for any person in possession of property to allow to originate from the property, noise defined in this section. For prosecution under this section, evidence of sound level through the use of a sound level meter reading shall not be necessary to establish a commission of the offense. Provisions of this section shall be cumulative and not exclusive, and shall not affect any other claim, cause of action or remedy including any prosecution for violation of sections regulating environmental noise. The content of the noise will not be considered in determining a violation. Sounds which Page 8 of 10 Chapter 6.32 – Noise Levels do not exceed the maximum environmental noise levels set forth in BMC 6.32.030 may constitute public disturbance noises. For purposes of this section, any noise or sound emanating from a business or other source on the property shall be presumed to be with knowledge, permission or consent of the owner or legal occupant of the property, which presumption may be rebutted by reasonable evidence to the contrary. The following shall be public disturbance noises: (a) The frequent, repetitive or continuance sound of any horn or siren attached to a motor vehicle, except as a warning of danger or as specifically permitted or required by law. (ba) The creation of frequent, repetitive or continuous noise in connection with the starting, operation, repair, rebuilding or testing of any motor vehicle, motorcycle, off-highway vehicle or internal combustion engine within District I and District II so as to unreasonably disturb or interfere with the peace, comfort and repose of owners or possessors of real property so as to be plainly audible to a person of average hearing from a distance ofgreater than one hundred (100) feet or more from the source. (cb) The use of a sound amplifier or other device capable of producing or reproducing amplified sound upon public streets for the purpose of commercial advertising or sales or for attracting the attention of the public to any vehicle, structure or property or the contents therein operated at a volume so as to be plainly audible to a person of average hearing from a distance of greater than one hundred (100) feet or more from the source, except as permitted by law, and except that vendors whose sole method of selling is from a moving vehicle shall be exempt from this subsection. (dc) Sound from motor vehicle sound systems, such as tape players, radios, and compact disc players, operated at a volume so as to be plainly audible to a person of average hearing from a distance of greater than fiftyone hundred (50100) feet or more from the vehicle itself. (ed) Operating or playing, or permitting the operating or playing of, any audio equipment, television set, musical instrument, or any sound, music or other noise emanating from any other fixed or portable audio equipment or similar device, operated at a volume so as to be plainly audible to a person of average hearing from a distance ofgreater than one hundred (100) feet or more from the source.Sound from audio equipment, such as tape players, radios, and compact disc players, operated at a volume so as to be audible greater than fifty (50) feet from the source. (e) Creating loud, raucous, frequent, repetitive, or continuous sounds with the human voice, whether by amplification equipment, such as a microphone, or not, so as to be plainly audible to a person of average hearing from a distance ofgreater than one hundred (100) feet or more from the source. (f) The creation of any loud noises which emanate frequently, or repetitively or continuously from any building, structure or property which unreasonably disturbs the peace, comfort and repose of others so as to be plainly audible to a person of average hearing from a distance ofgreater than one hundred (100) feet or more from the source.. (g) Between the hours of 7:00 a.m. and 10:00 p.m. the following noises shall be exempt from the provisions of BMC 6.32.050 and shall not be considered public disturbance noises: (1) Sounds originating from residential property relating to temporary projects for the maintenance or repair of homes, grounds and appurtenances. (2) Sounds created by the discharge of firearms on authorized shooting ranges. (3) Sounds created by the installation or repair of essential utility services. Page 9 of 10 Chapter 6.32 – Noise Levels (4) Sounds originating from duly permitted temporary construction sites as a result of construction activity. (5) Sounds originating from forest harvesting and silvicultural activity. (6) Sounds created by bells, chimes, and carillons which do not exceed five (5) minutes in an hour. (h) At all times the following noises shall be exempt from the provisions of BMC 6.32.050 and shall not be considered public disturbance noises: (1) Sounds created by warning devices not operating continuously for more than five (5) minutes. (2) Sounds created by safety and protective devices where noise suppression would defeat the intent of the device or is not economically feasible. (3) Sounds created by emergency equipment and work necessary in the interests of law enforcement or for the health, safety or welfare of the community. (4) Sounds originating from parades and other public events when duly permitted and conducted within the public right-of-way or on a site designated by the applicable permit. (5) Fireworks lawfully discharged within the City pursuant to Chapter 9.48 BMC. (6) Sounds caused by the emergency repair, routine maintenance, or construction of any public facility, utility, or street approved by the City of Bremerton Public Works and Utilities Department. (7) Sounds created from school marching bands while participating in school sanctioned practices or performances. 6.32.115 BELLS, CHIMES OR CARILLONS. The operation of bells, chimes or carillons shall be exempt from the provisions of this chapter. 6.32.120060 VIOLATIONS – CIVIL PENALTY, CRIMINAL PENALTY. (a) Civil Infraction. Any person who violates the provisions of this chapter shall be subject to a civil penalty of up to $250.00; provided, that the penalty for a second or subsequent violation within a two-year period shall be a civil penalty of up to $500.00, unless determined to be a habitual violator pursuant to Subsection (b) below.Every offense defined by this chapter or conduct made unlawful hereby shall constitute a civil infraction under the Bremerton Municipal Code; provided, however, A second violation within a twenty-four (24) hour period shall constitute a misdemeanor. (b) Habitual Violators – Misdemeanor. Any person, after receiving three (3) or more infractions, singularly or in combination, for prior violations of this chapter within a one hundred and eighty (180) day period found to be committed by the Municipal Court shall be guilty of a misdemeanor pursuant to BMC 1.12.020(2) upon a subsequent violation within said one hundred and eighty (180) day period. A conviction of a misdemeanor under this subsection shall be considered and counted as an infraction for the purpose of determining whether or not a violator is a habitual violator. In addition to any other sanction or injunctive procedure which may be available at law or equity, any person failing to comply with the final order issued by the administrator or a police officer shall be subject to a cumulative civil penalty in an amount not to Page 10 of 10 Chapter 6.32 – Noise Levels exceed one hundred dollars ($100.00) per day from the date set for compliance until compliance. The civil penalty shall be collected by legal action brought in the name of the City. (c) For enforcement purposes, each day, defined as a twenty-four (24) hour period beginning at 12:01 a.m. in which violation of this chapter occurs, shall constitute a separate violation. SECTION 2. 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 3. 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 4. 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 ____________________, 2022. _________________________________ MICHAEL GOODNOW, Council President Approved this ________ day of ________________________, 2022. _________________________________ GREG WHEELER, Mayor ATTEST: APPROVED AS TO FORM: __________________________________ _________________________________ ANGELA HOOVER, City Clerk KYLIE FINNELL, City Attorney PUBLISHED the ________ day of ______________________, 2022. EFFECTIVE the ________ day of ______________________, 2022. ORDINANCE NO. ________. R:\Legal\Legal\Ordinances\Police\BMC 6.32 - Noise Levels - City version 18.docx AREA # OF PARCELS City 13,200 Commercial Properties 1,773 50 Foot Buffer 2,642 100 Foot Buffer 3,153 200 Foot Buffer 4,191 Here’s how you interpret this data: In the entire City we have 13,200 parcels, and of those parcels there are 1,773 that are commercially zoned. Note that in all commercially zoned parcels an eating/drinking/entertainment use could be established. Some of the commercially zoned parcels (we don’t have a total for this) have existing residential uses or they allow mixed use or residential uses (again we don’t have a total for these). If you apply a 50’ buffer to our commercial zones (our old measurement) there are 2,642 parcels that fall within that distance. If you apply a 100’ buffer, then there are 3,153 parcels If you apply a 200’ buffer, then there are 4,191. Basically increasing the noise distance from 50’ to 200’ increased the number of impacted properties by 1,549 (which is 11.7% of our total parcels in the City) If there was an increase of the noise distance from 50’ to 100 the increase of impacted properties would have been 511 additional properties (which would have been just 3.9%).