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5475
NAVY, DEPT OF
License Agreement - Burwell Tunnel
Engineering
LEG 12-1
7/1/2014
6/30/2017
1/1/2017
2018
Comments :
/ , i /'�
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
SUBJECT: License Agreement.between the
City of Bremerton and U.S. Navy regarding
Construction of the Puget Sound Naval
Safety Project Burwell Pedestrian Access
Gate and Tunnel
Study Session Date:
COUNCIL MEETING Date:
Department:
Presenter:
Phone:
�
July 23, 2013
August 6, 2013
PW&U
Chal Martin
473-5758
SUMMARY: Pursuant to its interpretation of 10 USC 2336, and pursuant to a recent Navy
headquarters memo on the topic, the Navy has determined that a License Agreement is the
appropriate implementing instrument for the Burwell Tunnel project to proceed. Due to time
constraints for the project, the attached draft License Agreement is presented for review. Updates
are anticipated to the License Agreement in the next few days.
ATTACHMENTS:
1) License Agreement
2) 10 USC 2336;
3) Memorandum of May 22, 2014 from Dennis V
Installations and Environment)
4) Bremerton Gift Acknowledgements
McGinn, Assistant Secretary of the Navy (Energy,
FISCAL IMPACTS (Include Budgeted Amount): The project is funded by a State capital
appropriation of $1.3 million. Of this amount, the Department of Commerce will retain $39,000 to
manage the appropriation, leaving $1.261 million for construction and construction management.
The City will be the contracting agency for the construction, in close coordination with Naval Base
Kitsap.
STUDY SESSION AGENDA: ❑ No Presentation � Full Presentation
STUDY SESSION ACTION: ❑x Consent Agenda ❑ General Business ❑ Public Hearing
RECOMMENDED MOTION:
Move to approve a License Agreement with the Navy for construction of the Burwell Tunnel project,
and authorize the Mayor to finalize and execute the License Agreement with substantially the same
terms and conditions as presented.
COUNCIL ACTION: [�Approve
❑ Deny ❑ Table ❑ Continue ❑ No Action
Form Updated 01/25/13
�
LICENSE FOR NONFEDERAL USE OF REAL PROPERTY LICENSE NUMBER
SWDIV 11011/29 (1-92)
THIS LICENSE TO USE U.S. G�VERNMENT PROPERTY HEREIN DESCRIBED IS ISSUED BY THE
DEPARTMENT OF THE NAVY TO THE LICENSEE NAMED BELOW FOR THE PURPOSE HEREIN SPECIFIED N44255-14-RP-OOOCO
UPON THE TERMS AND CONDITIONS SET FORTH BELOW AND THE GENERAL PROVISIONS ON THE
REVERSE SIDE HEREOF AND ANY SPECIAL CONDITIONS ATTACHED HERETO. BY THE EXECUTION
HEREOF THE LICENSEE AGREES TO COMPLY WITH ALL SUCH TERMS, CONDITIONS AND GENERAL
ANDIOR SPECIAL PROVISlONS.
1. NAVAL ACTIVITY (Property Location) 2. DATES COVERED (Inclusive)
\av:il Dasc Kitsap Drcmcnon FROM 1 luly 2014 T � 30 Jun� 2017
3. DESCRIPTION OF PROPERTY (Include room and building number where appropriate)
[3urwe1l Peilesh•ian G9ic and Acce�s Tunncl Projrct (Fxhibit "A"j
4. PURPOSE OF LICENSE
Tu enable the City of I3remcrron to complcte a rcno�•:riiun ol thc ;�aw's D«nvcll Tunncl. Pundcd by a grant to thc City ti•om the State uf 1Yashington, and in
accordancc ���ith the Assistant Sccrctary of thc Na��y's preliminary acceptancc ot'thc completed renov:rtion prujcct as gift From thc Ciry to thc Dcparuncnt of the
Navp (DON). 1'his liccns� authorize+ acccss by Ciry ofticials. cmploycc,, contr,icturs, und represcntati��es m subject arca subject tu prowsions of this License.
5. LICENSOR 5a. LOCAL REPRESENTATIVE
UNITL:D S"I'A'1'GS.Of� A1NL:RIC'� Na�•al [iasc Kitsap Public V1'arks Ofliccr
DF:I'AR"I'h1EN't' Of� "I'F1L•: NAVY �IAV:\L f'ACILI'flliS tiNGINL:CRING COh1ti1AND NORTH�UEST
6. LICENSEE (Name and address) 6a. LOCAL REPRESENTATIVE (Name and add�ess)
Citv of Dremcrwn
7. CASH PAYMENT BY LICENSEE (Peyable in advance)
If no cash a ment Is re ulred enter "None" under item 7a "Amount"
a. AMOUMT (Each b. FREQUENCY c. FIRST DUE DATE d. TO (Local Goveinment representative)
Payment) PAYMENT DUE
i�UOI' �
8. DEPOSIT FOR UTILITIES AND SERVICES (Payable In advance)
If no cash a ment is re uired enter "None" under item 8a "Amount"
a. AMOUNT (Each B. FREQUENCY c. FIRST DUE DATE d. TO (Mailing Address)
Payment) PAYMENT DUE
None
. 9. INSURANCE REQUIRED AT EXPENSE OF LICENSEE
If an or all Insurance re ulrements have been walved, enter "None" in .a, b c or d as a ro riate
TYPE MINIMUM AMOUNT TYPE MINIMUM AMOUNT
a. FIRE AND EXTENDED COVERAGE c. THIRD PARTY PERSONAL
City is Sel(-Insured INJURY PER PERSON Ciq- is Selt=lnsured
b. THIRD PARTY PROPERTY DAMAGE c. THIRD PARTY PERSONAL
City is Sclf=lusured INJURY PER ACCIDENT Ciry is Sclf
10. GENERAL PROVISIONS (See Reverse Side)
Spccial Procisions arc attuchcd as Exhibi� "H" �nd m:�dc pan of this L�ccn;c.
II. EXECUTION OF LICENSE
FOR NAME POSITION AND TITLE SIGNATURE DATE
DEPARTMENT t�1ichacl D. 13r:icly ,
OF THE NAVY �
Rcal Lttntc Ciintracun[� Oliicrr ` � �''�'V�/p�1f'iiC�—• � �.� ��� �/�
LICENSEE
Patty Lent
�tayor
�a a Z� �
' t..�. . � _ r...� •
u�rL1�;A � t
�RIGINAL
10. GENERAL PROV[SIONS
a Thc Licensor hereby grants to the L�ccnscc thc nght to use the premises or facihucs
descnbed m rtem 3, together �ti•�th thc necessary nghts of mgress and egress
b This License shall be effectrve for the penud stated m item 2 and is revocable at any
ume wnhout nouce at the upuun and discreuon of the Licensor or �ts dul�� authonzed
representatrvc
c The usc shall be limited to the purposcs specificd hercm
d This License shall be neuher assignable nor transferable by the L�cznscc
e If uuhucs and sen ices arc furmshed to the Liccnscc for rts use of the premises the
Liccnscc shall reimburse the Licensor for thc cost thercof as determmed b�• the
I.�censor m accordance �vrth apphcable st�tutes and regulauons
f The I.icensze at rts own cost and expense shall prutect, maintain, and kecp m good
order, the premiscs or facihues hcensed herzby At thc discretion of the Licenwr, this
obhgation shall mclude, but not bc hmrted to, contnbuuon toward the expcnse of long
rerm mamtenance of the premises or fac�hues, the necessity for which accrued durmg
the penod of Licensee's usc The amount of expense to be bome b} thc Licensee shall
be determined by prorat�no thc total expense of the rtem of long term mamtcnance on
thc basis of fractional use by the L�censec This fracuonal part of the rotal c�pcnsc
shall be prorated further if the rtem of long term mam�enance did not accrue m ns
enurct�� dunng Licensee's usc
g Upon a dctermmauon by the Licznsor that thc ncccssuy ex�sts for an expendrture of
funds fur mamtenancc, protect�on, preservation or repau, the Liccnscc shall pay to the
I,icensor, rts proportionate share, on demand
h No addiuons to, or altcrations of, the premises or facihuzs shall bc made wuhout
the pnor consent of the L�censor Upon revocation or surrender of this I.icense, tu the
e�tent directcd bJ the Licensor, the L�censee shall rcmovc all altcrations, addiuons,
betterment, and improvcmcnts made, or installed, and restore the prem�ses or fac�lrties
ro the same, or as good condiuon as existed on the datc of zntry under this License,
reasonable ��•ear and tear excepted
� The I.icensee shall be liable for anp loss oF, or dama�e to, the premises or facilrt�es
mcurred as a result of rts use and shall make such restoranon or repau, ur munetary
compensat�on as ma�� be directed by the L�censor The I.icensee's liabihty Cur loss or
damage to the premises resultmg I�om nsks expressly reqwred to bc rosurcd hercunder
shall not exceed the amount of msurance so reqwred 'l'he Licensee shall not be liable
for loss of, or damage to, the prem�ses ansmg Gom causes beyond the control of the
Licensee and occasioned by a nsk not m fact covered by msurance and not customanly
co�•ered by msurancc m the locaht�• m which thz prem�ses are situated Nothmg
contamed h�rem, however, shall rehc��c ihc Licensee of habiht}• ���rth respect to any
loss or damage to the premises, not fully compensatcd for by msurance, �+•hich results
from �wllful misconduct, lack of good fanh, or fadurc to excrc�se due dingence, on thz
part of the Licensee All msurance required of the Licensee on the prem�ses shall be
for the protecuon of thc Liccnsor and the Licensee agamst thcir respectrve nsks and
I�abilrtics m connechon wrth the premises Each pohcy of msurance agamst loss or
damage to Go�•emment property shall name the Licensee and the Un�ted States of
Amenca. Department of ihe Na�y, as lhe insured and shall contam a loss payable
clausc rcadmg substanu�lh• as follows
"LOSS, IF ANY, UNDER THIS POLICY SHAI.L BE ADJUSTED WITH
(NAME AND I.ICENSGCj ANU "1'HE PROCEEDS, AT THE
DIRECTION OF TFIE GOVGRNMLNT, SHALL BE PAYABLt l�0
(NAME OF LICENSEt), AND PROCEEDS NOT PAID TO (NAME OF
LICENSEE) SHAI.L. BL•; PAYABLE TO TIIE TREASURFR OF 'I'Ht
UNITED STATF.S OF AMERICA "
In the event that any �tcm or part of the premises ur facilrt�es shall reqwre repau,
rebwldmg, or replacement resulung (rom loss or damage the nsk of w•hich �s assumcd
under this paragraph, the Licensee shall promptly grve noucc thcreo( to the Licensur
and, to the extent of rts habihty as pro�•ided m this paragraph, shall, upon demand,
either compensate the Government for such loss or damage, or rebwld, replace ur
rcpau the rtem or rtems of the prem�ses or facilitics so lost or damaged, as the Licensor
may elect If the cos[ of such rcpau, rebuddmg, or replacement exceeds thc habihty of
the Licensee for such loss or damage, the Licensee shall effect such repair, rebwldmg,
or replacemcnt if reqwred so to do b� the Licensor, and such exccss of cost shall be
re�mbursed to the Licensee bv the Licensor In the event the Licensee shall ha��e
efl'ected any repair, rebwldmg, or replacement which the I.icensee is reqwred to effect
pursuant to this paragraph, the L�censor shall direct payment ro the Licensee of so
much of the proceeds of any msurance carcied by the Licensee and made avadable to
the Government on account of lass of or damage to any rtem or part of thc prcmises or
facilities as maJ be necessan� to enablc the Licensee to effect such repair, rebu�lding or
replacement ln evcnt the Licensee shall not have been reqwrcd to effcct such repmr,
rebwldmg or replacement, xnd thc rosurance proceeds allocable to �he luss ur dumage
�vhich has created the nud for such repa�r, rebuddmg or replaccmcnt havc bccn pa�d to
the Licensee, the Licensee shall promptly refund to the Licensor the amount of such
proceeds
� Interest Nohcithstandmg any other prowsion of this License, unless paid wnhm
thirty (30) days, all amounts that become pa}•able by the uCEUSee to thc
GOVER��tE�l' undzr this contract (net of any apphcable tax credrt under the Internal
Revenue Code) shall bear mtcrest from the date due unul paid and shall be sub�ect to
ad�ustments as provided m the Federal Acqwsihon Regulauons, as m eflect on the date
of th�s Liccnse The mterest rare per annum shall be thc mtcrest rate m effect which
has been estabhshed by �hc Secrctaq� of the Treasury pursuant to Pubhc La��• 9�-563,
the Contracts Disputes Act oF 1978, �ahich �s apphcable to the penod m�vh�ch the
amount becomes due as hcrem prov�ded Amounts shall be due upon the earlicst onc
of (a) the date fixed pursuant to this contract, (b) the date of the first wnttcn demand
for payment, consistent a�rth this License, mcludmg demand consequcnt upon dcfault
termmauon, or (c) the date of transmittal by the GOVERNMENT to the LICENSEE of
proposed supplementsl agreement to confirm complcted negouat�ons fixing the
�mount 'l�he �nterest charge made under this clause may b� reduced under the
procedures prcscnbed m 33 614 uf thz Federal Acqws�uon Rcgulauons m cffcct on the
date of tha contract
k The Licensee shall �ndemnifi and save harmless the Government, rts ofticers,
agcnts, scrvants and employees from all I�ab�lrty undcr the Fedcral Tort Clmms Act (6'!
Stat 869, 98?, 28 U S C Sec 2671, 26R0) or othenvise, for death or m�ury to all
persons, or loss or damage to the property of all persons resulting from the use of the
premises by the Licensee L�censec shall fumish the msurance specitied m Item 9
Each pohcy of msurance reqwred m Item 9 covenng boddy m�unes and thud party
property damage shall contam an cndursement readmg substantially as follows
'(a) Thc rosurer warves any nght of subroganon agamst thc Umtcd Statcs of Amenca
which might anse by' reason of am• pa�-ment madc undcr th�s policp (b) The
Commandin� Officcr, Naval Facdities Fngmeenng Cummand Northwest, shall be
gi�en thirty (30) days �a•ntten nouce pnor to makmg any m�tenal change m ur the
cancellauon of the policy (c) The Umted States of Amenca (Dept of the Navy) �s
added as an add�tional insurcd in operations of the pulicy holder at or frum the
premises licenscd from the Umted States (d) This msurance certificatc �s for usc of
facihues at rtem +i I
I All msurance rcqwred by this [.icense shall be m such form, for such penods of
ume, and wrth such msurers as the Licensor may rcqwre or approve A certificate uf
insurance or a certified copy of each polic�� of �nsurance taken out hercunder shall be
deposited wrth the Licensors local representaU�•e pnor to use uf the premises and
facihues The Licensee agrees that not less than th�rty j30) days prwr to the expirat�on
of any msurancc reqwred by this License, it wdl deliver to the Licensor's local
representauve a certificate of msurance or a certified copy uf each renewal pohcy to
co�•er the same nsks
m No member of or dclegate to congress, ur resident commissioner shall be admitted
to any share or part of th�s Littnsc or to any benetit that may anse thereGom, but th�s
provision shall not be construed to extend to this License if made a•rth a corporahon
for ns ecncral benefi[
n The L�censee warrants that rt has not employed any person tu solicit or secure this
I.icense upon any agreement for a commission percentage, brokerage or contingent fee
Brcach of this warr�nty shall grve the Go��cmmcnt thc right [o annul this License or m
rts discreuon to reco��cr Gom the L�censee the amount of such commission, percentage,
broherage or conungent fce m addrt�on to the considerauon herem set forth Th�s
H�artanty shall not apply to commasions payable by thc Liccnscc upon contracts or
sales secured or made throu�h bona fide cstabhshed commercisl or selhng agencies
mamta�ned b}• the I.�censee for the purpose uf secunng busmess
o In connecuon wnh thc performance of �ti•urk under this License ihe Licensee agrees
not to discnm�nate against any employee or applicant for employment because of race,
rehgion, color, or nahonal ongm The aforesaid provision shall mclude, but not be
hmrted W, the followmg emplo�ment, upgradmg, demoUOn, or transter recrmtment ur
recrurtment advenismg, layoff or termmauon, rates uf pay or other furms of compen-
sahon, and selecuon for trammg, mcludmg apprcnticeship The I.icensee agrees W
post hereafter m conspicuous places available for employees and applicants for
employment, nouces to bc provided by the Licensor setung forth the prov�sions of the
nondiscnmmauon clause l�he Licensee further agrecs to msert thc foregomg
provision m all subcontracts hereunder except subcontracts for standard commercial
supphcs or raw matenals
p All actrvrties xuthonzed hereunder shall be sub�cct to such rules and regulations as
regards supervis�on or othcnvisc, as maV, from time to hme, be prcscnbed by the
local representatn�e of thc Liccnsor as designated m Item Sa
NAVFAC 11011129 (1-92) (Back)
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EXHIBIT "B"
SPECIAL PROVISIONS
a. This license is issued as specified in the letter dated July 11, 2014 from Mr. Paul L. Oostburg,
Acting Secretary of the Navy acknowledging the City's offer of a gift of improvements to the
Burwell Pedestrian Access Gate and Tunnel and stating the Navy's intention to formally accept
the gift upon completion of the improvement project.
b. Intended use of improvements in lieu of ownership or long-term lease. The parties to the
License for Non-Federal Use of Real Property agree that the Navy intends at the time of
entering into this agreement to maintain the improvement as a pedestrian walkway for a
period of at least ten years, as described and agreed to in the Letter of Intent from
Commander, Navy Region Northwest to Mayor of Bremerton dated September 30, 2014.
c. Commander Navy Region Northwest (COMNAVREG NW) identifies Naval Base Kitsap (NBK)
Public Works (PW) as its subject matter expert for all construction oversight and regulatory
compliance issues on NBK Bremerton and within the Puget Sound Naval Shipyard's (PSNS)
highly-secured Controlled Industrial Area (CIA). COMNAVREG NW has authorized NBK PW to
interface directly with the City of Bremerton (City) for the duration of this project.
d. City and Ci#y's contractors working inside the PSNS CIA must be properly screened, badged
and regularly monitored by Navy employee(s) throughout Project execution.
e. Construction work performed under this Project must comply with all Federal environmental
protection regulations related to this proposed action on board NBK. PSNS is designated as a
United States Environmental Protection Agency "Superfund" hazardous waste clean-up site,
and additional, site-specific environmental requirements apply. This designation requires Navy-
performed coordination/oversight during construction to ensure the Burwell Pedestrian Tunnel
Improvements Project is completed consistent with all existing environmental orders,
agreements, and regulations.
f. Navy-performed quality assurance oversight during construction is essential to ensuring the
Burwell Pedestrian Tunnel Improvements Project is completed such that the final gift will be a
complete and usable facility acceptable to the Navy. '
g. The City, as the contracting agency, will award all contracts required to complete this
project, approve any changes to those contracts (subject to Navy approval and concurrence on
issues pertaining to special provisions d, e, and f), and make payment for all contracted work.
Contracts awarded by the City under this license will contain appropriate clauses mandating
compliance with U.S. Government requirements identified by NBK PW.
h. The City accepts the design and other technical requirements approved by the Navy and will
close out construction and Designer of Record (DOR) consultation (a.k.a Post Construction
Award Services or PCAS) contracts upon final project acceptance by NBK PW. After final gift
acceptance, the City will not be held responsible for further errors, omissions, or quality issues
related to the design or construction. However, if construction errors or defects are discovered
before or after acceptance, the City will assist Navy by taking any available actions under the
City's contract to have the contractor correct those defects.
i. Recurring coordination/oversight will be expended by NBK PW during the pre-award and
construction phases of this project in order to guarantee the final project and its execution
meet all DON requirements.
j. The City of Bremerton is authorized to make improvements to the Navy's Burwell Tunnel,
including its utilities and access points. Improvements to real property and structures must
comply with all Navy regulations, instructions, standards, and requirements. Upon acceptance
of the final gift and termination of this license, Department of the Navy will retain ownership of
all improvements, construction, etc., authorized herein.
k. The parties agree that nothing herein will be construed as obligating either party to violate
existing laws or regulations.
I. The City and NBK PW will coordinate regarding any audits resulting from this project while
this LICENSE is in place, and after it has been terminated.
m. This license does not create, limit, or modify existing legislative jurisdiction vested in the
State of Washington or the U.S. government. Nothing contained herein creates or extends any
right, privilege, or benefit to any person or entity.
n. All terms and conditions outlined in this LICENSE shall form the basis of the agreement;
however, the parties agree that the terms may be modified by the parties as necessary to
administer and complete the project.
o. ROLES AND RESPONSIBILITIES.
a. Naval Base Kitsap Public Works (NBK PW)will:
(1) , Request final approval from higher authority for the acceptance of the gift of real
property improvements from the City.
(2) Provide existing project scope information.
(3) Review any changes proposed to the Construction RFP prior to award, to ensure that all
Federal and DoD/DON requirements are addressed in the final contract. Changes to the
Construction RFP may not become final without Navy concurrence.
(4) Coordinate with the City to ensure the City receives required information from the DOR
and that the PCAS scope of work is complete and sufficient to satisfy Navy requirements.
(5) Coordinate any necessary site visit(s) inside NBK and CIA, and any access requirements,
during project solicitation/bid and pre-award process. .
(6) Ensure all NBK/PSNS-specific station support is properly coordinated throughout
construction (e.g., contractor access issues on PSNS, utilities outages, environmental
compliance, compliance with Navy Uniform Facilities Criteria, etc.).
(7) Monitor construction and immediately notify the City of any actions required to comply
with DON requirements. ,
(8) Upon completion of project, accept and process project acceptance documents from
the City. .
b. City of Bremerton will:
(1) Complete and submit the Commerce Contract Readiness survey.
(2) Execute and manage the Grant with Commerce as the single point of contact for all
communication with Commerce on Grant issues.
(3) Ensure City's RFP for Project construction includes all DON requirements, and
incorporate necessary bid forms and other language so that the resulting contract complies
with applicable City and State contracting regulations.
(4) Coordinate with DOR and NBK PW to develop the contract for the City to award for
PCAS services; award the PCAS and Construction contr-acts; ensure contractor compliance with
all regulatory and contract requirements.
(5) Ensure project is completed without exceeding the designated Washington State
Department of Commerce, Jobs and Economic Development Grant funds available for project
execution ($1,261,000) and without requiring any compensation from the United States.
(6) Consult with NBK PW to evaluate the elimination of project phases to reduce costs in
order to deliver an acceptable final project to the U.S if at any time it appears that costs to
complete the project may exceed the available Grant funds.
(7) Make all required payments to the Construction Contractor and DOR.
(8) At least once a month or more frequently if required, coordinate with NBK PW to
aggregate any required Work Change Directives into Change Orders, and execute those Change
Orders.
(9) Upon completion of the project, provide project acceptance documents to NBK PW.
p. FINANCIAL MANAGEMENT REQUIREMENTS.
a. Washington State Department of Commerce, Jobs and Economic Development
Grant:
(1) The Available Grant Funds available to the City for project execution is $1,261,000. The
City will be responsible to ensure that the project is completed without requiring any
compensation from the United States.
(2) If at any time it appears that costs to complete the project may exceed the available
Grant funds, the City will consult with NBK PW to evaluate the elimination of project phases to
reduce costs in order to deliver an acceptable final project to the U.S.
b. City will make all required payments to the Construction Contractor and DOR.
c. Changes to the Construction Contract:
(1) Field Changes Executed by Work Change Directive:
(a) As stated at o.a.(7) above, NBK PW will monitor construction regularly. NBK PW will
immediately notify the City of any changes required in order to comply with DON requirements.
(b) Field changes affecting contract price or time must be incorporated by the City into a
Change Order.