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4264
KITSAP TRANSIT
Conference Center & BTC Phase D Projects
Executive
LEG 12-1
04/02/2002
12/31/2005
02/15/2007
01/01/2007
MOD superceded by Interlocal - 7/18/03
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FINAL PAYMENT APPLICATION AGREEMENT
This Final Payment Application Agreement is made pursuant to Section 5.5.5 of
the "Interlocal Agreement Between The City Of Bremerton And Kitsap Transit
Regarding The Kitsap Regional Conference Center Project" (the "Agreement") dated
July; 2003, between the CITY OF BREMERTON (the "City"), a Municipal Corporation
and Washington First Class Charter City, and KIT SAP TRANSIT ("KT"), a Municipal
Corporation organized as a Public Transportation Benefit Area, as of the ~ day of
I'~ ~ 2005 to resolve all outstanding issues regarding the construction of tne Parking and
....- 0.- Plaza facility of Bremerton Harborside.
Recitals
1. The Conference Center Project has been substantially completed.
2. At the time the Agreement was executed, the budgeted cost of the Parking and
Plaza Facility excluding certain pre-construction costs already advanced by .the
parties was approximately $21,195,000.00. KT's Base Pro-Rata Share thereof
was 18.6%, subject to a $4 million cap, including demolition costs advanced by
KT in the amount of$69,169.00.
3. A footnote appended to Section 5.4.1 of the Agreement created an ambiguity in
calculating the KT Base Pro-Rata Share ofthe cost ofthe Parking and Plaza
Facility.
4. Certain Change Orders were made to the original Construction Contract. KT
contends the net effect of these Change Orders reduced the contract price by
$70,000.00 entitling KT to a credit of $13,020.00 (hereafter the "Change Order
Credit"). The City disputes this claim.
5. Pursuant to Section 5.3 ofthe Agreement, KT expended $16,015.00 in Project
Monitoring expenses for which KT claims it is entitled to a credit (the "PM
Credit") for the City's pro-rata share. The City claims it never agreed to and
disputes this claim.
6. The City acknowledges that the Bremerton Harborside project and KT will jointly
benefit from construction of a pedestrian canopy between the Bremerton
Transportation center and the Commuter Retail Building estimated to cost
approximately $250,000.00 and that KT should receive an allowance as provided
in paragraph 2.7 for a portion of the estimated cost thereof.
7. Section 7.7 of the Agreement obligated the City to replace or relocate any FT A
assets within the Project which were destroyed during the course of construction
("Lost FT A Assets"). KT contends the assets identified in Exhibit 1 with a value
; \}
,;: Page 1 of 4
of$146,563.00 are Lost FT A Assets, consisting of 17 obliterated parking stalls in
the HOV Garage and miscellaneous assets valued at $27,343.00. The City
disputes this claim and claims that KT received other major project benefits that
KT has not been charged which benefits more than offset this claim.
8. As recited in that certain Agreement for "Transfer Of Restaurant Pad Air Rights"
dated November 19, 2004, the City was obligated to reimburse KT for the sum of
$125,000.00 representing one-half (l /2) of the proceeds from the sale ofthe Hotel
Pad Air Rights to Hotel Concepts Of Kitsap, LLC. Further, KT is entitled to
receive compensation in the amount of$62,370.00 representing the fair market
value ofKT's interest in the Restaurant Pad Air Rights the City has agreed to
transfer to a restaurant developer and operator.
9. The purpose of this Settlement Statement is to provide for project close-out, to
resolve KT's offset claims and to provide for KT's final payment for the last of
the Parking Garage and Plaza Facility.
Final Statement
2.a It is agreed that the final Construction Cost ofthe Parking and Plaza Facility
equaled or exceeded $21,195,000.00, subject to the Change Order Credit provided
below, and excluding the cost ofland and other expenses incurred by the parties
prior to the execution of the Agreement.
2.b It is agreed that the initial "KT Base Pro-Rata Share" of the cost ofthe Parking
and Plaza Facility was and remains $4,000,000.00, which sum did not include the
following (the "Excluded Costs"):
. Land Acquisition Costs;
· Any costs associated with acquiring and developing the Kiss-N-
Ride facility contemplated by Section 7.3 of the Agreement;
· The BTC Pedestrian Canopy;
· The cost of constructing the Building formerly known as the
Commuter Retail Building and now known as the "Bremerton
Harborside Office Building" or the "Kitsap Transit Building"; and
· Incidental costs incurred by KT prior to the execution of the
Agreement.
2.c Excluding the PM Credit and Excluded Costs, KT has paid the total sum of
$3,580,919.00 towards KT's share of the cost ofthe Parking and Plaza Facility,
which payments are identified in Exhibit 2 hereto. KT has previously authorized
the City to apply KT's share of the Hotel Pad Air Rights in the amount of
$125,000.00 to KT's share of the cost of the Parking and Plaza Facility.
Accordingly, concurrently herewith, KT shall pay a final payment in the amount
Page 2 of 4
,f-
of$294,081.00. This payment shall fully satisfy KT's obligations with respect to
the Parking and Plaza Facility Construction costs.
2.d KT shall retain sole and exclusive ownership and control of that certain area of
the Parking Garage known as the "HOV Garage" and depicted on Exhibit 3. Prior
to the construction of the Parking Garage and Plaza Facility, there were 60 HOV
parking stalls. 17 of those stalls were obliterated and lost as a result of the
construction of the Parking Garage and Plaza Facility. As a result, KT received as
an offset, 7 additional stalls in Area 51 on Level P-l and having a value of
$70,130.00 in accordance with the provisions of Paragraph 2.g below.
2.e In addition to the remaining 43 parking stalls in the HOV Garage, KT shall be
entitled to a total of 123.5 parking stalls within the Parking Garage. KT shall
retain sole and exclusive ownership of the area of Level P-I commonly known as
"Area 51" identified in the Level P-l map attached hereto as Exhibit 3, consisting
of 51 parking stalls. Subject to the terms of the Conference Center Parking
Agreement dated 8/20/2003 regarding evening parking for the Hotel, KT shall
retain exclusive ownership and control of 72.5 additional stalls on Level P-l.
These 72.5 stalls are identified in the Level P-l map attached as Exhibit 4.
2.f Concurrently herewith, the City will execute and deliver to KT the original
"Contract For Use Of City-Owned Rights-Of-Way", a copy of which is attached
as Exhibit 5 by which the City shall grant and convey to KT the perpetual right to
use certain portions of the Callow A venue and Bruen Avenue rights-of-way,
subject to certain reservations and restrictive covenants.
2.g The agreed value of the right of way transfers and ~covenants set forth in
Paragraph 2.f above is $260,899.00 consisting of the following:
Remaining Lost HOV Stalls @ $7,013.00 each
Other Lost FT A Assets
City Share of BTC Canopy
Value of Restaurant Pad Air Rights
Change Order Credit
PM Credit
$70,130.00
$27,343.00
$75,000.00
$62,370.00
13,020.00
13,036.00
Total Consideration
$260.899.00
2.h I KT relieves the City from any further obligation to partil;;ipate in constructing the
BTC Canopy.
CITY OF BREMERTON
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" Page 3 of 4
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By
Gary Sext , Bremerton Conference
Center Authorized Representative
KITSAP TRANSIT
By Gt-JY~ I
RICHARD HAYES, E
Director
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EXHIBIT 1
KITSAP TRANSIT PROPERTY
LEGAL DESCRIPTION
ORDER NO. 89074S&C3
PARCEL A:
LOTS 1 AND 2 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN
VOLUME 2 OF PLATS AT P AGE(S) 30, IN KITSAP COUNTY, W ASIDNGTONj
TOGETIlER WITH THATPqR TION OF V ACA TED ALLEY ADJOINING OR ABUTTING ON THE
EASTLYlNG BETWEEN THE PRQffiCTiONS EASTERL Y OF UIE NORTH AND SOUTH LlNES
OF sAID LOTS, WHICH UPON V ACA TioN~ Art ACHED TO SAm PREMiSES BY OPERATlONOF
LAW; ALSO TOGETHER WITH THOSE PORTIONS OF VACATED FRONT (FiRST) STREET AND
WASHlNGTON AVENUE ADJOINING OR ABUTTING TIIEREON, WHICH UPON v ACA TION,
A Tt ACHED TO sAID PREMISES BY OPERA nON OF LAW.
PARCEL B:
LOr 3 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN
VOLUME 2 OF PLATS AT PAGES(S) 30, IN KITSAP COUNTY. W ASIllNOTON;
TOGEtHER WITH THAT PORTION OF VACATED ALLEY ADJOTNINO OR ABUTTING ON THE
EAST L YINGBETWEEN THE.PROJECTION Of THE NORTHERLY AND SOUTHERLY LINES OF
SAID LOT 3, WHICH UPON V ACA TION. ATTACHED TO SAID PREMISES BY OPERATiON OF
LA W,PURSUANT 1'OKITSAP COUNTY SUPERlORCOURT CAUSE NO. 66664.
PARCEL c:
LOTS 4, 5, 6 AND 7 IN BLOCK 2 OF TOWN OJ:' BREMERTON,ACCOR,1)ING TO PLAT
RECORDED iN VOLUME 20F PLATS AT P Al3E(S) 30, IN KITSAP COUNTY, WASHINGTON~
T0GEn1E.~"W1T*'THATP0R:T:IQNOF ,VACAmo ALLEY ADJOINlNG.ORAllI.JTTLNGON THE
.EAsr'L YINO BETWEENTHE.SOtJtHERLY-LiNEOF~LOT4~ANri.lliENoiTHERbY.L:lNEOF-
b0T 7 PROJECTED EAst, WHICH UPON 'lACATIQN,.ATTAhH;ED T9 SAID PREMISES BY
OPERATTONOFLAW. . ... .
PARCEL D:
THE SOUTHEASTERLY 30 FEET OF THE FOLLOWING DESCRIBED PROPERTY:
THAt PORTJON OF GOVERNMENT LOT 1, SECTION 34. TOWNSHIP 24 NORm, RANGE 1
EAST. W.M., IN KITSAP COUNTY, W ASH1NGTON. DESCR.lBED AS FOLLOWS:
COMMENCING AT A POINT ON THE NOR'rHEASTERL Y LINE ON FRONT (NOW fIRST)
STREBT. BREMERTON, WASHINGTON. 14 FEET SOUTHEASTERLY FROM THE SOUTHEAST
CORNER OF LOT I IN BLOCK 2 OF TOWN 0.1:'" BREMERTON, ACCORDTNG TO PLAT
RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30. IN KITSAP COUNTY, W ASlJINOTON;
THENCE NOR11IEASTERL Y PARALLEL WITH 1"HE SOUTHEASTERLY LINE OF SAID BLOCK 2
A DISTANCE OF 60 FEET;
llIENCE soutHEASTERLY PARALLEL WITH THE NORTHEASTERLY LTNE OF FRONT
S'I'ReET 234 FEET,. MORE OR LESS, TO INNER HAR.80R LINE;
THENCE SOUTIIWESTERL Y PARALLEL WITH TIlE SOUTHEASTERLY LlNEOF SAID BLOCK 2
A DISTANCE OF 60 FEET, MORE OR LESS, TO TIJE NORTHEASTERLY LJNE OF FRONT
STREET; THENCE ALONG sAiD LINE NORTHWESTERLY TO tHE PLACE OF BEGINNiNG;
Page 1
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LSZ1Z6909C XVd Sc:gO CO/1ZILO
TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR
ABUTTING THEREON, WHlCH UPON V ACA nON, ATTACHED TO. sAID PREMISES BY
OPERA naN OF LAW;
EXCEPT FROM ALL aF tHE ABOVE PORTION THEREOF L YTNG EASTERLY aF THE TNNER
HARBOR LINE.
J:> ARCEL E:
TIlA T rORTION OF THE GOVERNMENT LOT 1, SECTION 24, TOWNSHIP 2.4 NORm, RANGE 1
EAST, W.M, IN KITSAP COUNTY, WASHTNG'fON AND tHE TIDE LANDS ADJOTNTNG,
DESCRJBED AS FOLLOWS:
COMMENCING AT -THE MOST SOUTHERLY CORNER OF BLOCK 2. OF TOWN Of BREMERTON,
ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30;
THENCE SOU'fH 45~0'30" EAST ALONG THE NORTHEAST LINE OF FIRST STREET 14.18 FEET
TO tHE TRUE POJNTOF BEGtNNING;
THENCE NORTH 350:37' 10" EAS1" 60 FEET;
THENCE SOUTH 45<>20'30" EAST 34.02 FEET;
THENCE: NORm 45<>29'10" EAST 14. t 7 FEEr;
THENCE NORTIi 35036'30" EASt 5.90 FEET TO THE SOUTIlWESTERL Y CORNER OF EXISTING
BRICK BUILDING;
THENCE ALONG TIlE SOUTHEASTERL Y WALL OF SAID BUILDING AND TIIE LINE Of SAID
WALL PRODUCED, SOUTH450Z0'30" EAST 129.00 FEET;
THENCE SOUTH 41 053'20" 79.39 FEET, MORE OR LESS, TO A pOINT ON THE
NORTHEASTERLY LINE OF FIRST STREET~ '
THENCE NORTIl45 020'30" WEst ALONG SAID LINE TO TIlE TRUE POINT aF BEGINNING;
rOGETHER WITH THAi PORTION OF VACATED FRONT (FIRSD sTREET ADJOINING OR
ABUTTING ON THE SOU1H, WlllCH UPON VACATION, ATTACHED TO SAID PREMISES BY
OPERATION aF LAW. EXCEPT TIIE FOLLOWING DESCRiBED TRACT:
COMMENCING AT THE MOST SOUTIlE1U.Y CORNER OF SAID BLOCK 2;
TitENCESOUtH,4S,.~20~30"EA.$I.!WPN.G:rHE N,OR-lHE, " "ASTE,RLY LINE,OF FIRST STREET 14.115
F~T TO mE TRUE pomr OF BEGINNING; ., ., ., . q".-. .....,.. .
THENCE NORTH3So31'10"EAST 60 fEET;
~CE. SOUI'H 45 020'30" EAST 34.02 FEET;
TIiENCE ~olhiIwESTERL Y TO A POINT ON THE NORTHEASTERLY LINE OF FIRST STREET
WHICH IS SOUTH 450:20'30" EAST 23_69 FEET FROM THE TRUE POlNT OF BEGINNING;
TIIENCE NORTH 45 020'30" WEST 23.69 FEET TO THE TRUE poINT OF BEOINNING;
INCLUDIN<:lWIIH_S_AIP E;XCEPTED TRACT. THAT PORTION OF VACATED FRONT (FIRST)
STREET ADJOINING OR AinjitiNG SAID EXCBfiiED TRACT aN THE SOUTf'f~-WHICtfUP0N'
V ACA TION, ATTACHED TO SAID PREMISES BY OPERA nON OF LAW.
Page 2
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KITSAP
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OTEt
MERTON, WASHINGTON
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:TRUCTION
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CHANGE Contract Transactions
Contract Number 4264
=F
=FVendor Name
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9=
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Comments
KIT SAP TRANSIT
CONFERENCE CENTER
EXECUTIVE
GOV
& BTC PHASE D PROJECTS
T
9=
=F
Insurance
Type Amount
Amount
Begin Date
End Date
Review Date
06/15/2006
04/02/2002
Insurance Total
Insurance Review Date
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$0.00 9=
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MOU IN FILE SUPERCEDED BY INTERLOCAL - 7/18/03
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T
AGREEMENT FOR TRANSFER OF RESTAURANT PAD
AIR RIGHTS
THIS AGREEMENT is made by and between the CITY OF BREMERTON (the
"City '), a municipal corporation and KITSAP TRANSIT ("KT"), a mur~jcjpal
corporation, pursuant to the authority conferred on the part/es under the terms of the
Interlocal Agreement dated July 18, 2003 and recorded under Kitsap County Auditor's
File No. 20030724038.
It is agreed as follows:
1. The City is currently negotiating with a restaurant operator ("Operator")
for the Operator's development and operation of a restaurant at the
Bremerton Harborside Regional Conference Center Project.
2. TIRe City desires to convey to the Restaurant Operator fee title to certain
air fights more particularly described in Exhibit 1, hereafter, sometimes
referred to as the "Air Rights".
3. The Air Rights sit on an existing concrete deck (the L'Transit Deck"),
-- initially constructed by KT to support the future construction of certain
building improveanents on the Transit Deck,
Initially, the only improvements below the Transit Deck was a ground
level parking area commonly known as the HOV Garage. In connection
with the Conference Center Project undertaken by the parties, the City, as
the ,Lead Agency with the construction responsibilities, extended the
Transit Deck to support the construction of the various components of the
Conference Center Project including the creation of(i) a larger restaurant
pad site for sale or lease to a restaurant operator; (ii) the construction of
the Conference Center owned by the City; (iii) the construction of the
mixed use Transit Building for KT;; (iv) the creation ora hotel pad site for
sale or lease to a Hotel Operator; (v) the construction of street level
pedestr/an and public walkways and amenities; and (vi) the construction of
a three story parking garage beneath the Transit Deck and extended pad_
4. For purposes of this Agreement, the following temps shall have tile
following meanings:
a. Restaurant Pad ' means tire portion of the concrete surface
immediately below the Air Rights, together with the abutting
sidewalks and '~sub-structure" as thai term is defined below.
b. "Sub-structure" means the supporting posts, Columns and beam.~
necessary to support the concrete surface of the Transit Deck,
AGREEMENT FOR TRANSFER OF RESTAURANT PAD AIR R1GF{IS .. Page I of 5
(11~19-04)
Restaurant Pad and Transit Building/Conference Center Pad for
use as a foundation to support the construction of building
improvements on such decks and pads. The '~sub-struct~ure',
excludes other improvements be~eath the decks and pads such as
parking areas, restrooms, elevator,, stairways and storage rooms.
c. "Restaurant Improvements" means all improvemellts constructed,
placed or maintained within the Air Rights on and above the
Restaurant Pad.
d. The "Transit Building/Conference Center Pad" means the concrete
surface immediately below the as-built location of the Transit
Building and Conference Center together with the abutting
sidewalks and sub-structure.
5. The City and KT are in the process of adjusting the boundary lines
between the var/ous parcels of land they own within the Cont~'ence
Center Prqject. In connection with suer adjustments, it is the parties intent
that KT will retain ownership of approximately 81% of the land beneath
the Restaurant Pad, while the City will retain ownership of the remainder.
_ 6. KT acknowledges the City intends to sell the Air Rights to the Operator on
terms negotiated by the City. Concurrently with the closing ("Closillg") of
thc City's sale of the Air Rights to the Operator, KT shall convey good
marketable title to its interest in the Air Rights to the Cit.,,', together wilh
the appurtenant Easement rights (the "Easement") described in Paragraph
7 below, subject to the reserved "view cora, ant" described in Paragraph 8
below.
7. KT acknowledges that as part of the City's negotimions with the Operator,
the City contemplates granting the Operator certain easement rights with
respect to some of the City's right, title and interest in the Parking Garage.
Given KT's common interest in he Parking Garage, concurrently with
KT's transfer of the Air Rights, KT shall grant the City and its successors
and assigns an appurtenant, perpetual, non-exclusive easement (the
"Easement") for ingress, egress and utilities to and through the drive-
aisles, walkways, stairways, elevators, utility facilities, freight loading
areas and trash/recycling areas of the Parking Garage. If required by the
Operator or its title insurer to perfect good title to the Easement, KT
agrees that it will consent to the City's easement grant to the Operator al'Id
join in same. Such joinder shall not be construed to operate to effect a
transfer of any of KT's allotted parking stalls to the Operator.
_ 8. KT's transfer of the Air Rights shall be subject to a rese~x, ed perpetual
view protection covenant (the '~View Covenant") to protect the views from
the second and third floors of the Transit Building. The View Covenant
AGR[il.;MENT FOR TRANSFER OF RESTAURANT PAD AIR RIGHTS - Page 2 o1'5
(11-19-04)
*Subject to City Council approval. Should the City Council fhil to approve hxs Sectton 9, this
See6on shall be null a~d void and the remain,,~ of,~ae agree~llent st:tall continue_~fl {brce and
shall generally be in substantial conformance with the ten-ms set forth in
Exhibit 2.
The City agrees the fair market value of KT's interest in the Air Rights,
together with the appurtenant Easement is $62,370_00. Concurrently w/th
the final parking garage accounting and close out, the C/fy will convey
City owoed property and/or right of way of an equivaleut value located on
Callow & Bruen ^venues.4t
10. KT acknowledges the Operator will requi~e certain covenants, assurances
and warranties regarding the maintenance, repair and replacement of the
Restaurant Pad and Parking Garage. KT will join in the following
covenants and assurances for the benefit of the Operator:
a. KT and the City shall jointly warrant the structural integrity of the
Restaurant Pad and Sub-structure for use as a foundation for thc'
cgnstruction and maintenance of the Restm~rant Improvements.
b. KT will agree to be jointly and severally liable with the City to
maintain, repair and/or replace the Restaurant Pad in the event of
-- substantial damage or destruction.
c. KT's undertakings shall be made on the express condition that ~i)
KT shall have no liability of any kind or nature for the Restaurant
Improvements; and (ii) the inclusion of a mutual waiver of
subrogation on the part of KT, the Operator and their respective
insurers.
1 1. KT will provide the Operator with no assurances or covenants with respect
to the maintenance, repair or replacement of the :Parking Garage.
12. Notwithstanding the provisions of Paragraphs 7 and 10 above, solely as
between the City and KT, the City and KT agree as follows:
a. The City's and KT's duties with respect to the maintenance, repair
and/or replacement of the Restaurant Pad mad Transit
Building/Conference Center Pad shall be allocated fairly between
KT and the City based on their respective ownership interests of
the underlying land and respective interests in the above-ground
improvements. Each party shall pay for such party's allocated
share and save, indemnify and hold the other part), bare,less from
any claims in excess of such allocate~t share.
b. The City m~d KT acknowledge they will maintains, repair and/or
replace the Parking Garage in the event of substantial dan~age or
AGREEMENT FOR TRANSFER OF RESTAUP. ANT PAD AIR RIGI-ITS - Page 3 of 5
(11-19-04)
~12/10/2004 09:§6 1B~0~73~@~0 KCCHA ~AGE 0~
destruct/on. These duties shall be allocated between the City and
KT pro-rata based on their respective ownership of the parking
stalls therein, as such ownership may, over time, change.
Notwithstanding the foregoing, in the event of a major casualty,
neither party shall have any obligation ~r replacement beyond the
insurance proceeds that would be available undf~r a standard
commercially reasonable policy of casualty insurance. In the event
of an uninsured casualty, the City and KT shall make a good faith
effort to collectively seek disaster relief; grant funding and other
fm~ding sources to fully restore the Parking Garage and public
improvements constructed on the ex tended pad as part of the
Conference Center Proj eot as a whole.
c. KT shall have no responsibility or liability with respect to the
Hotel Pad and the City shall save, indemni:fy and hold KT ham~less
from any claims of the owner of the air rights and improvements
on or above the Hotel Pad.
d. Each party shall have a license and easement across the other
party's property within the Conference Center Project footprint as
necessary to enable it to comply with its duties and obligations
-- hereunder.
e. The covenants set forth in this Paragraph 12 are for the benefit of
only the City and KT mad no other party shall be deemed a
beneficiary of these covenants.
13. KT and the City affirm and acknowledge that no Owner, operator, tenant
or occupant or any contractor, employee or agent of any such Owner,
operator, tenant or occupant of any property included in the Bremerton
Harborside Development Project, including, specifically, any development
within the Air Rights, shall discriminate nor tolerate harassment on the
basis of race, color, sex, religion, nationality, creed, marital status, sexual
orientation, age or the presence of any sensory, mental or physical
disability in the employment, application of employment and/or the
provision or delivery of accoruruodations, goods and services by and/or to
persons and entities. In connection with the City's prospective resale to a
Restaurant Operator, the City confirms that such Operator has represented
that it is subject to, will and is legally obligated to fully comply with all
applicable Federal, State and Local laws, ordinances, executive orders ;md
regulations that prohibit discrimination, including Chapter' 49.60 RCW.
Titles VI and VJ1 of the Civil Rights Act of 1964 and the Restoration Act
of 1987_ KT and the City shall reserve the ~ght to enforce full compliance
_ w/th all such applicable laws, ordinances, executive orders and
regulations,
AGREEMENT FOR TRANSFER OF RESTAURANT PAl') AIR RJGItTS - Page 4 ot'5
( 11 ~ 19-04)
PAGE
14. The City and KT heretofore joined in the sale of the air rights to the Hotel
Pad, the proceeds of which were delivered to the City. 'l'he City and KT
agree that KT's net share thereof is $125,000.00, which the City shall pay
or credit to KT as part of the Parking Garage final accounting and project
close-out.
15. In the event any dispute arises under this Agreement, such dispute shall be
resolved in accordance with the dispute resolution provisions of the
Interlocal Agreement.
16. This Agreement shall survive the Closing of the sale of the Air Rights.
The terms of this Agreement supereede any inconsistent provisions of any
prior Agreement between the part/es. '
CITY OF BREMER.T-ON
KITSAP TRANSIT
DATED:
R1CHARD HAYES, x~utive Direc~-~:o-~-
INTERLOCAL AGREEMENT
BETWEEN THE CITY OF BREMERTON AND KITS.aP TRANSIT
REGARDING THE KITSAP REGIONAL CONFERENCE CENTER PROJECT
~ . This Interlocal Agreement (the Agreement )lsmadeasofth~ ./~ dayof
J~. 2003 by and bet-wean THE CITY OF BREMERTON (thc C~ty ') a Wash ngto
first class charter city and KITSAP TRANSIT ("KT") a Washington Municipal
Corporation organized as a Public Transportation Benefit Area_
SECTION ONE
REC TAh S
1.1 Thc City is cooperating with several governmental agencies, including KT, Kits,ap
County (thc "County"), the Kitsap Public Facilities District (the "PFD") and with
private sector parties to develop and finance a Regional Conference Center (the
"Conference Center Project") located adjacent to the Bremcrton Iransportation
Center (the "BIC'). The County and the PFD have designated the City as Lead
Agency to complete the Conference Center Project pursuant to a separate
Interlocal Agreement between the City, the County and the PFD.
1.2 Thc Conference Cemter Project includes not only conference center moms, but
associated parking facilities, plazas, a hotel, one or more restaurants, retail space,
office space and other amenities and features, all of which are essential and
integral components of the Conference Center Project.
1.3 The City and KT previously executed a Memorandum Of Understanding
("MOU") dated April 2, 2002, by which the City and KT agreed to explore thc
feasibility of integrating KT's Phase D BTC Project into the City's Project.
Reference is made to the recitals set forth in thc MOU as a reference to provide an
understanding of thc prior history of the Conference Center Project, as it relates to
KT's participation.
1.4 Following the execution of MOU, thc City, as the Project Lead Agcncy
determined that the public interests would best be served by following thc Design-
Build Model set forth in Chapter 39.10 RCW relative to the construction of the
Conference Center Project. The City warrants it undertook, followed, completed
and/or complied with thc procedures and process required by RCW 35.57.020(7)
and the applicable provisions set forth in Section 39.10.051.
1 _5 The City ultimately selected Opus Northwest, LLC ("Opus") to serve as the
Developer for the Conference Project.
1.6 As thc City undertook negotiations with Opus, Opus advised the City that it
would only complete thc Conference Cemer Project if thc Conference Center
Project specifically included supporting office and retail space. At the time, KT
INTERLOCAL AGREEMENT Page I et' 18 6/12/2003
and the City contemplated that KT would negotiate the transfer of the air rights
above the CRB Pad to the City for ultimate transfer to Opus to enable Opus to
construct and retain ownership of the Commuter Retail Building, subject to a
retained option to lease one floor thereof.
1.7 A~ Opus began preparing its design and coustru~tion plans, the City, KT and
Opus began negotiating for KT's transfer of the CRB Pad air rights and KT's
potential lease of one floor of the Commuter Retail Building. Opus, the City and
KT were unable to come to terms. Further, during this process, KT re-examined
its long-range office needs and, as a result of intervening developments,
concluded that KT might ultimately require more than one floor of office space
for its own uses. As a result of these factors, KT concluded that the public
interests would best be served by KT's ownership of the entire Commuter Retail
Building.
1.8 The Architect retained by Opus is at the 90% design stage for the Conference
Center Project. The Design includes the thnctionai integration of the Commuter
Retail Building as an essential component of the Conference Center Project.
Accordingly, the Commuter Retail Building cannot be segregated or isolated from
the other elements of the Conference Center.
1.9 In order to insure the success of the Conference Center Project, the City wants m
insure the first and thtrd floors of the Commuter Retail Building are available for
lease by private sector tenants for a minimtln~ period often (I0) years.
1_10 The City desires to retain control over the completion of the design and
construction of ali the components of the Conference Center Project including the
Commuter Retail Building so as to assure the full integration of the Commuter
Retail Building into the Conference Center Project.
1.11 By allowing Opus to continue with the design and comumction of the Commuter
Retail Building, KT and the City will derive cost savings arising from the
resulting economies of scale
l-I 2 KT warrants it has received the FTA's approval for the funding of the Phase D
BTC grant funds necessary to proceed with the public parking facilities
encompassed within that grant.
1.13 'ltte "Preliminary Phase" contemplated by the MOU has been completed. The
purpose of this agreement is to memorialize the "Final Development Plan"
contemplated by the MOU and to set forth the parties' rights, roles and
responsibilities as they relate to KT's participation in the Conference Center
Project.
INTERLOCAL AGREEMENT Page 2 of 18 6/12/2003
SECTION TWO
AGREEMENT AND INCORPORATION OF RECITALS.
This Agreement is being entered into pursuant to Chapter 39.34 RCW. The
recitals set forth above are incorporated herein.
SECTION THREE
DEFINITIONS
All words used in this Agreement shall be given their normal and ordinary
meaning unless otherwise defined differently in this sect. ion. Certain terms have been
defined in the Recitals. The following additional terms are the special definitions for the
purpose of this Agreement only:
"Conferenc~ Center Project" means the Transit-oriented development intended to
serve as a Regional Center as defined in RCW 35.57.020 located adjacent to the BTC and
will include a Conference Center facility, a Parking Facility, a restanranb public lxansit
related facilities, a hotel, pedes~an oriented retail space, pedestrian oriented public
spaces, professional office space and residential and Port facilities and improvements.
"Parking and Plaza Facility" shall mean the parking garage, plaza and associated
streetwork and streetseape that will be an integral part of the Corfferance Center Project.
The Parking and Plaza Facility excludes the "HOV Garage" which is separately defined
herein.
"Developer" means Opus NW, LLC.
"KT Property" refers to the two parcels of land described or depicted in Exhibit 1.
Individually, these two parcels may sometimes be refbrred to as KT Parcel 1 and KT
Parcel 2, respectively.
"City Property" refers to the 5 parcels of land described or depicted in Exhibit 2a
- e. Individually, these parcels may sometimes be ref~tred to as City Parcels 1, 2, 3, 4
and 5.
"HOV Garage" refcm to thc area of land described or depicted in Exhibit 3
devoted exclusively for transit-related use. The HOV Oarage includes 60 parking stalls.
After the Parking Facility is constructed, the 60 HOV stalls will be located on the existing
lower level on the area of land described or depicted in Exhibit 3 beneath the CRB Fad.
The "CRB Pad" r~fcrs to the area of land over which the Commuter Retail
Building will be built and is described or depicted in Exhibit 3.
INTERLOCAL AGREEMENT Page 3 of 18 6/12/2003
The "Commuter Retail Building" refers to the three story mixed use retail and
office building to be constructed on the CRB Pad as an integral part of the Conference
Center Project.
"Kiss And Ride Facility" means an area of land to be used by the pnblic to drop-
off and pick-up passengers from the BTC.
"Shared Project Expense" refers to the cost nf completing the Parking and Plaza
Facility that are allocated between the City a~d KT as either described as such in this
Agreement or set forth m the Parking Facility and Plaza Project Budget as an expense to
be allocated between the City and KT. The Parking and Plaza Facility Project Budget
(hereinafter referred to as the "Parking Budget") has been mutually approved by the
Parties.
"KT's Pm-Rata Share" means the share of the cost of the Parking and Plaza
Facility allocated to Kitsap Transit pursuant to the Parking Budget. KT's Pro-Rata Share
varies for different elements and components of the Parking Budget and reference is
made to the Parking Budget to the computation of KT's pro-ram share of such elements
and components, ffKT's Pm-Rata Shaze for a given element is not allocated in the
Parking Budget, such share shall be deemed 18.6% of the total savings attributable to
such element.
"Project Footprint" means the total land on which the Con/erence Center Project
will be built consisting ofKT Pamcls 1 and 2 and City Parcels 1, 2, 3, 4 and 5.
SECTION FOUR
DESIGNATION OF LEAD AGENCY
Subject to the terms h~'eof, the City shall serve as thc Lead Agency to complete
the Conference Center Project. The City shall be responsible for coordinating the design
and construction of the Conference Center Project with its other public partners, the
Washington State Ferry System and U.S. Navy to the extent the Conference Center
Project involves, impacts or effects said entities,
SECTION FIVE
THE PARKING AND PLAZA FACILITY
5.1 General Provisions. Thc City shall 1~ responsible for ~ design, construction,
ovezsight, inspection, completion and financing of the Parking Facility, subject to
and in compliance with the terms of this Section 5.
INTERLOCAL AGREEMENT Page 4 of 18 6/12/2003
~0~ --~0iWId~,L~LL¥~ ~gI~6909~ XVt 9C:90 CO/T~/£O
5,3 Protect Monitoring And Review By KT. KT reserves thc right to retain or
5.2 Construction Tcrms.
5,2.1 Contract IFith Developer. 2'he City has contracted with the Developer for the
conslxucflon and completion of the Parking and Plaza Facility, pursuant to a
contract dated November 15, 2003.
5_2.2 Plans, Pursuant to thc Main ConWact, the Developer and its design consultants
and engineers are required to develop final Plans and Spociticadons (collectively:
thc "Plans") consistent with general design standards and specifications
heretofore joimly developed and approved by the City and KT.
The Plans shall be subject to KT's approval, which shall not be withheld except
for just and reasonable cause.
The Parking and Plaza Facility shail be completcd in accordance with the Plato
approved by KT within thc time specified in the Cntical Path Schedule mutually
approved by the Parties and in a good workmanshiplikc manner in conformance
with acceptable industry standards for similar parking facilities. Thc completion
date set forth in the Critical Path Schedule may be extandcd for force majeure or
other delays beyond thc reasonable control of thc City and thc Developer.
5.2.3 Permits. The City shall bc responsible for sccuring all required permits required
for the completion of the Parking and Plaza Facility.
5.2.4 Legal Requirements, The City shall insure the Parking and Pl~a Facility is
completed in compliancc with, and that the Developer complies with, all
applicable requirements of State, Federal and local laws, including the following:
a. The Federal contnicting requirements set forth in FTA Circular C4220.1D
and the FTA Master Agreement dated October 1, 2002;
b. The bonding requirements of Chapter 39.08 RCW;
c. The retention requirements of Chapter 60.28 RCW;
d. The Design-Build requirements of Chapter 39.10 RCW; and
e. All applicable environmental laws, including applicable City regulations,
the State Environm~lltal Policy Act (SEPA), CERCLA (42 USC §9603),
MTCA (RCW 70.105(D)), and the Cleau Water Act (33 USC §1321).
Pursuant to WAC 197-11-944, thc City shall serve as the nominal lead
agency, whereby the City shall be responsible for complying with the
duties of the lead agency under all applicable SEPA rules. In addition, the
City shall comply with the NEPA Finding of No Significant Impact issued
by the FTA on May 22, 2001.
INTERLOCAL AGREEMENT Page 5 of [8 6/12/2003
90~ --N0&~ld~H&X&L¥~ £SZlZ6909t YYH 9C:~0
b. KT's Pro-Rata Shale of any liquidated damages assessed by the City
against the Developer; and
e. Any other deductions hereinafter agreed to between the City and KT in
writing.
5.4.4 Other Costs. Subject to thc allowable Increases and Decreases allocated to KT in
accordance with the provisions of Sections 5,4.2 and 5.4.3, the City shall be solely
respormible for all costs, fees and expenses in excess of the KT Base Pro-Rata Share_
5.5 Payment Of KT's Share Of The Cost Of The Parking Facilities. KT's Base
Pro-Rata Share of the cost of thc P~rking and Plaza Facilities as allocated and computed
in accordance with Section 5.4 shall be paid as follows:
5.5_1 Credit For Payments Made To Date. KT has hcrctofore paid the sum of
$69,169.00 relative to Joint Project Expenses, which sum shall serve as a credit against
the KT Base Pm-Rata Share.
5.3.2 Concurrent Payment. Concurrently herewith, KT shall pay thc City the sum of
$432,095 ~00 as a further credit against thc KT Base Pro-Rata Share.
3..5.3 Other Payments. As the City receives progress payment applications from the
Developer, the City shall transmit copies thereof to KT, together with City's payment
application setting forth KT's Pro-Rata Share. Within 15 days of KT's receipt of each
progress payment application, KT shall remit it's Pro-Rata Share thereof, subject to the
procedures set forth in Section 5.5.4 below.
$.$.4 KT Payment Procedures. Any objections which KT may have regarding a Project
Application For Payment shall be made in writing by KT within 15 days of receipt o£thc
application for paymenL Failure to provide a timely written objection shall not, however,
constitute any waiver of right to withhold and/or not approve any subsequent payment
application. KT shall pay all approved portions of Applications For Payment within the
time periods specified in Section 5.5.3. All paymem applications fxom the Developer
shall be accompanied by the federally required certification forms.
5.5.5 Final Payment. Final Payment of KT's share shall be governed by thc following
procedures:
Upon Final Completion, the City shall submit a Final Payment
Application (clearly marked as such), give notice to KT and coordinate a
completion inspl:ction with KT's project representative.
b. During the completion inspection, the City shall prepare a written punch
work list of any uncompleted or deficient work lbr transmittal to the
Developer. Thereafter, the City sludl cause any such punch work list to be
INTERLOCAL AGREEMENT Page 7 of 18 6/12/2003
promptly completed and arrange a final inspe~ztion for KT's Final
Acceptance.
Final Payment of KT's share shall be paid within 30 days after KT's Final Acceptance
and KT's receipt of three (3) sets of final record, "as-built", construction drawings and
operations manual, one of which shall be in an electronic CD tbrmat (CAD file);
5.6 Retaiuage. Retainage shall be governed by Chapter 60.28. Retainage shall not be
released by the City until 30 days after KT's Final Acceptance and the City's compliance
with Chapter 60.28 RCW.
5.7 Payment Of Ci~'s Share. Subject to KT's duty to remit its Pro-Rata Share o1'
the cost of the Parking and Plaza Facility as provided in Section 5.5, the City shall be
responsible for the full and timely paymem of all costs, fees and expenses arising from
the design, construction~ administration and completion oft. he Parking and Plaza Facility,
whether due the Developer, consultants, subcontractors, materialmen, laborers, taxing
authorities or otherwise.
Thc City warrants it has sufficient non-contingent funds available to fully complete the
Parking and Plaza Facility in accordance with the requirements of this Agreement, any
other agreements between the City, other public agencies who are participants ia the
Project and any agreements with the Developer, subject only to KT's payment of KT's
Pro-Rata Share.
5.8 Ownership And Management.
5.8.1 Allocated ParMng Stalls. Subject to the provisions of Section 5.8.2, all parking
stalls within the Parking and Plaza Facility shall be allocated between KT and the City as
follows:
KT: 116.5 stalls (the "KT Stalls")
City: 404.5 stalls (the "City Stalls)
Subject to the provisions of Section 5.8.2, KT shall retain owners~p of the KT Stalls, and
the City shall retain ownership of the City Stalls.
The allocation of the parking stalls was based on thc assumption that the Joint Parking
and pla?~a Facility will conaist of 521 new stalls and the total costs thereof are allocated in
accordance with thc Parking Budget. It'the number of stalls change or the allocated stalls
change, thc stalls will be allocated by separate agreement in accordance with the
methodology set forth in the approved Parking Budget.
5.8.2 Parking Management. All stalls within thc Parking and Plaza Facility shall be
managed, operated and/or subject to the Conference Ccmer Parking Garage Agreement to
be negotiated and mutually approved by the Parties.
INTERLOCAL AGREEMENT Page 8 of ~ 8 6/12/2003
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~.9 Insurance; Destruction.
$.9.1 Insurance Requirements. The City and KT shall each maintain and keep m force
property insurance on that portion of the Parking and Plaza Facility owned by
them. The insurance shall be written on a replacement cost basis and shall insure
against all risks of direct physical loss, subject to the standard and customary
exclusions found in property pohcies written for similar governmental entities.
The property insurance required by this section may be included in blanket
policies written for the City or KT and may be subject to the same deductible used
by each party for other insured properties. Each party shall be responsible to the
other for payment of such deductible. Coverage for earthquake, flood and
terrorism shall not be required.
The City and KT shall each maintain and keep in force comprehensive liability insurance in an
amount not less than $5 million per occurrence. Each shall name the other an additional insured.
5.9.2 Adjustments. The types of policies, risks insured, coverage axnounts, deductibles
and endorsements may be adjusted from time to time as the City and KT may
mutually determine and agree.
5.9_5 Destruction.
a. If the Parking and Plaza Facility is totally or partially destroyed at any
time aRer thc execution of this Agreement and the insurance proceeds
(less any deductible) are sufficient to pay the cost or reconstruction or
restoration, then the City shall reconstruct or repair the damage consistent
with the ten'ns and intent of this Agreement. If the insurance proceeds
(less any deductible) are insufficient to reconsU'uct or repair the Parking
and Plaza Facility, then the City may nonetheless elect to reconstruct or
repair the Parking and Plaza Facility or to terminate this Agreement.
b. If the City is unable to reconstruct or restore the damage to the Parking
Facility, KT shall be entitled to a pro-rata share of the insurance proceeds,
based on the ratio of the amount of payments made by KT pursuant to this
Agreement divided by the total conswuction costs of the Parking and Plaza
Facility.
c. Until Final Acceptance, the City shall be responsible for processing and
the defense of any claims arising from any destruction or damage to the
Parking and Plaza Facility or other casualty arising therefrom, including
property damage, personal injury and death.
5.10 Indemnification.
5.10.1 In General. The City shall defend, indemnify and hold KT and its respective
directors, officers, employees and agents ("Indemnitees") harmless fxom all
claims, liabilities, causes of action and demands, regardless of-the nature of the
INTERLOCAL AGREEMENT Page 9 of 18 6/12/2003
claim, arising directly or indiiectly from the planning, pemntting, construction
and completion of the Parking and Plaza Facility and Conference Center Project,
except for claims arising from the sole negligence of any Indemnitee. In the case
of concurrent negligence of the City and an Indemnitee, each party shall hold the
other party harmless from trek proportionate share of the resulting damages.
5.10.2 Exceptions. The general indemnification and hold harmless provisions of
Section 5.10.1 do not extand to (1) the operation of the Parking and Plaza Facility
following final acceptance of the Parking and Plaza Facility, which liabilities
associated with the ownership, maintenance and operation of the Parking and
Plaza Facility is allocated in the Parking Maintenance Agreement; (2) the specific
duties allocated to KT under this Agreement, including specifically the Commuter
Retail Building.
5.10.3 F/A Compliance. In addition to the Fe, d~ml contracting requirements,
construction and completion of the Parking and Plaza Facility is gnvemed by the
additional terms set forth in this Section 5.10:
5.104 Incorporation Of FT,,I Terms. All contractual provisions required by DOT as set
forth in FIA Circular 4220,1D dated August 4, 1998, as amended, and FTA MA
9 dated October 1, 2002, are hereby incorporated by reference. Anything to the
contrary herein notwith,tanding, all FTA mandated terms shall be deemed to
control in the event ora conflict with any other provisions contained h~ this
Agreement. The City shall not perform any act, fail to perform any act or refuse
to comply with any requests t¥om KI which would cause KT to be in violation ol
the FTA terms and conditions.
5.10.5 Ownership Of Documents And Assets. All designs, drawings, specifications,
technical data and other documents or information produced by Developer
pertaining to the Parking and Plaza Facility shall be the sole property of the City
and KI and the City and KT shall be vested with all rights therein of whatever
kind and however created, lXovided, however, any design documents not stamped
and signed by applopriate registered professional archit~t~ or en~ineers shall be
deemed to be incomplete and requiring further review or design completion.
litle to all property fumishe, d by KT or the City shall remain in the name of KT
and the City, respectively, and they shall become the owner of the work, product
and other documents, ff any, prepared by Developer pursuant to the City's
contract with Developer unless otherwise expressly pmvidecl herein.
5.10.6 Change& Any proposed change in the scope of work, design or construction of
the Parking and Plaza Facility shall be submitted to KT for its prior approval.
5.10. 7 trr'arranty Of The Work. The City war~ants to KT that all materials and
equipment furnished with respect to the parking and Plaza Facility will be new
unless otherwise specified by KT, flee from/hults and defects and in
INTERLOCAL AGREEMENT Page 10 of 18 6/12/2003
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contbrmance with Plans, Specifications and Documents approved by KT. All
work not so conforming to these standards shall be considered detective. If
requested by KT, the City shall furnish satisfactory evidence as to the kind and
quality of materials and equipmem.
The Work relative to the Paxking and p!aya Facility (the "Work") must be of first
quality and the workmanship must be the best obtainable m the various trades.
The Work must be of safe, substantial and du~ablc construction in all respects.
The City hereby guarantees the Work against defective materials or faulty
workmanship in accordance with the terms set tbrth in the City's Design Build
Contract with Opus.
5.10.8 No FTA Liability For FTA Withdrawal. In the event the FTA withdraws its
approval, fails to fund the approved grant or demands the remm of FTA grant
funds allocated to the Parking and Plaza Facility, the FIA shall not have any
liability to the City.
SECTION SIX
THE COMMUTER RETAIL BUILDING
6.1 General Provisions. The Commuter Retail Building shall be designed,
constructed, financed and owned in accordance with the provisions of this Section
Six.
6.2 KT's General Responsibilities. Except as set forth in Section 6.3,
notwithstanding the City's execution of the "CRB Addendum", KI shall be
responsible for the payment, financing, insurance, lease-up, ownership and
operation of the Commuter Retail Building.
6.3 City's General l~uties. The City shall have the following duties with respect to
the Commuter Retail Building.
a, Pursuant to WAC 197-I 1-944, the City shall serve as the nominal lead
agency, whereby the City shall be responsible for complying with thc
duties of the lead agency under all applicable SEPA roles_
b. The City as the Lead Agency shall be responsible for the construction,
oversight, permitting, inspection and completion of the Commuter Retail
Building pursuant to Plans, Specifications and Contract Documents
approved by KT.
c. The City, as the Lead Agency for the Cont~rence Center Project, shall
cooperate with KT as necessary to insure the coordination of the
construction of the Commuter R~til Building with and as an integral
element of the Conference Centex Project as a whole, so long as KT bears
INTERLOCAL AGREEMENT Page 11 of 18 6/12/2003
all costs related to the design, construction and completion of the
Commuter Retail Building.
6.4 Ownership. KT shall retain exclusive ownership and conlml of the Commuter
Retail Building.
6.5 Contract With Developer. The City shall contract with the Developer by
Addendum (the "CRB Addendum") to the Main Contract, tbr the design and
construction of'the Commuter Retail Building in a form approved by KT- The
final construction and design of the Commuter Retail Building shall be subject to
the following:
The City shall not ex~cute or approve any modifications to the CRB
Addendum, any related design and construction documenls or any change
orders without the express w~itten consent of KT.
b. In connection with any modifications to the design, the City and KT will
work cooperatively to insure any design changes are harmonious with the
Conference Center Project as a whole.
c_ On the City's receipt of Progress Billings from the Developer, the City
shal! promptly remit copies thereof to KT and KT shall promptly remit
payment thereof so as to insure timely payment to the Developer.
d. KT's Representatives with respect to the Commuter Retail Building are
Richard Hayes and Don Laford of URS Corporation, either of whom shall
have the fight to approve modifications and change orders_
e. KT reserves the right to monitor consauction so as to insure timely and
proper completion in accordance with Contract Documents. When
requested by KT, the City shall arrange for such inspections, testing,
examination and audits as designated by KT, which inspections, tests,
examinations or audits shall be undertaken by individuals or entities
directed by KT at KT's sole cost and expense.
Concurrently with the City's receipt of any notices, communications or
correspondence from the Develope~ or any authority having jurisdiction
over the inspection and construction of the Commuter Retail Building, the
City will promptly provide KT with copies thereof and/or any information
acquired by the City.
g. ri shall be solely responsible for the full and timely paymem of all costs
and fees allocated to Lead Agency under the CRB Addendum.
Conversely, KT shall receive all liquidated damages and savings that may
be payable under the CRB Addendum.
INTERLOCAL AGREEMENT Page 12 of 18 6/12/2003
h. When ~nd if requested by KT, the City shall assign the CRB Addendum or
divisible portions thereof to KT as KT deems necessary to protect its
interest in the Commuter Retail Building, In the event ora breach by the
Developer and/or a dispute, iT shall assume r~sponsibility for pro~cming
and defending any claims at KT's sole expense. The City shall take no
action to enforce any fight or remedy without the approval of KI.
6.6 Indemnification.
6.6.1 In General. KT shall defend, indcumify and hold the City and its elected
officials, officers, employees and agents ("Indcmnitees:) harmless from all claims,
regardless of the nature of the claim, arising directly or indirectly fi'om the
pla, nlng, fllllmcing, owfl~l~llip and operation of the Commuter Retail Building,
except for claims arising flom the sole negligence of any lnd~flnitcc. In the case
of coneurrant negligence of KT and an Indemnitee, each party shall hold the other
pmx'y hurmless fi'om their proportionate share of remlting damages.
6.6.2 Exceptions. Thc gcncl~ indt~mnification and hold IMfllllcss provisions of Section
6.6 do not extend to thc breach o£any of thc City's express warranties and duties
under this Agreement, including specifically the warranties set forth ~n Sections
1,4 and 6.3.
SECTION SEVEN
OTHER PROPERTIES
7.1 LIOV Garage.
7.1.1 Perrtument Ownership. KT shall retain cx¢lmivc ownership and control of the
HOV Garde and shall be solely responsible for the maintenance and operation
thereof.
7.1.2 Temporary Construction £a~emcnt. During the Conference Center l'mject
Construction period, the City and the develo!~r shall have the right to use and
occupy the HOV Garage for access, storage and other conslx'uction purposes
t~lated to the Project, so long as the policies of liability insurance provided by thc
City OF in the City's Design Build Contract with Opus include coverage for the
HeY Garage and all activities thereon, or adjacent thereto.
7.1.3 ])ermarlerlt Access Easement_ On thc completion of the Parking and Plaza
Facility, the City shall convey a perpetual non-exclusive ~lsement for ingress and
egress over, across and through the dlive aisles of thc Parking and Plaza Facility
and thc entrances, approaches and access roads to the Parking and Plaza Facility
fi'om the nearest permanent public street.
7.2 Hotel And Restaurant l)ad Air Ri~ht~. -l'he City end KT shall t:onvey the air
fights above thc Hotel and Restaurant Pads, to the Developer for fair market value
IIqTERLOCAL AGREEMENT Page 13 ell8 6/18/'2003
as established by independent appraisal subject to the applicable rules of the PTA
regardinE Joint Developments. The net proceeds from the sale of those air rights
after payment of the closing easts allocated to the seller shall be allocated to the
City and KY in fair shares. As of the date hereof, the parties estimate the fair
market value of these air rights is $500,000.00 and that, subject to confumetion of
the value by appraisal, KT's share thereof is $250,000.00.
7.3 Kiss And Ride. The City and KT shall u.~ their best efforts to develop a Kiss
And Ride facility consisting of 24 spaces at the SW comer of Second Avenue and
Washington. The parties' respective duties and obligations with respect thereto
will be developed by separate agreement hereto.
7.4 Cross Easement~, KT and the City shall grant and establish public cross-
easements to provide pedestrian access over and acwss the sidewalks, plazas and
walkways abutting each component of the Conference Center Project. As to the
private components of the Conference Center Project, the City shall insure the
Developer and any private party who acquires properties within the Conference
Center Project footprint dedicates the abutting sidewail~ and walkways for pedestrian
ac'~:egS.
7.5 Other Properties, Exert as act forth in this Agreement, thc City and KT shall retain
title to all land owlaed by either of them and subject to thc Cross-F~aseraeut$ or any
cxp~ss re.~trictinns set forth herein~ are fre~ to convey, dispose, improve or encumber
any such land as such owning patty deems appropriate or necessary.
7.6 Miscellaneous. On thc conveyance ofthe Easements described in Sections 7.1.3 and
7.4, all cxist~ ea.s~lents within the Project Footprillt shall be extinguished.
7.7 BTC FTA Asset~. The exi~nE Fi'A assets now cn~compasacd within thc BTC which
are to be relocated, recon~gured, removed o~ d~srul~ed as either (1) required by the
Wa~hln~on State Fercy D~partl:ncnt; (ii) requh~d or designated in thc Confc~nce
Center Plans; or (iii) mutually ag~ed by thc City and KT, including parking stalls,
l~&strian zones, landscaping, bike locker areas, directional signsge, storage units,
telescopes and plagues shail be replaced or relocated by the City at no cost to KT.
SECTION EIGHT
DISPUTE ItES.(~LUTION
8.1 In General. If a dispute at,sas between the parties on account of this Agrecment~
includlnE the ~)rlllance Of an~ provision of ~ Agr~mcnt or the
interpretation thereo£, thc parties agncc to follow the procedure set forth in this
Section Eight. It is thc goal of the parties to resolve tbeir differences as early in
this step p~ocess as possible.
INTER.LOCAL AORE~.]VJ[F..NT Pag~ 14 of 18 6/I 8/2003
8.2 Step One - Informal Discussions. Thc Designated Representatives shall meet to
sec if the roarer can be informally resolved. This may involve more than one
meeting.
8.3 Step Two- Written Notification And Resolution. If informal discussions are
not successful, then a written notice of dispute shall be mailed to the address for
notices set forth in Section 9.1, as well as to the Designated Representative. The
notice shall set forth the nature of the dispute and the desked outcome. A written
response shall be provMed within ten (10) business days. The response shall
provide the responding party's version of the dispute and a proposed resolution.
The parties shall meet within ten (10) business days after the response is received
in order to see tithe ra~er can be amicably resolved. If the matter is amicably
resolved at this stage, the affected parties ahall sign a Memorandum Of
Understanding with regards thereto.
8.4 Step Three - Litigation. If the parties are unable to resolve theix differences at
Step Two, either party may initiate an action in Kitsap County Superior Court. The
parties agree that jurisdiction and venue lie exclusively in Kitsap County Superior Court,
SECTION NINE
MISCELLANEOUS PROVISIONS
9.1 Notices. All notices and other wriRen commUmcations required by this
Agreement shall be in writing and, except as expressly provided elsewhere in this
Agreement, shall be deemed lo have been given at the time of delivery if
personally delivered, or at the time of mailing if mailed by lirst class, postage pre-
paid and addressed to the patty at its address as stated below or at such address as
any party may designate at any time in writing.
To City: Mayor
City of Bremerton
2394~ Street
Bremerton, WA 98337
With Copy To: Gary Sexton
City of Bremerton
239-4t~ Street
Bremertom WA 98337
To Iii[sap Transit: Richard Hayes, Executive Director
Kitsap Transit
200 Charleston Blvd.
INTERLOCAL AGREEMENT Pag~ 15 of 18 6/12/2003
Bremerton, WA 98312
With Copy To: Ronald C. Templeton
MaRy & Templeton
3212 NW Byron g~'eet, Suite 104
Silverdale, WA 98383
9.2 Severability. It is the intent of the parties that if any provision of this Agreement
or its application is held by a Court of competent jurisdiction to be illegal, invalid
or void, the validity of the remaining provisions of this Agreement or its
application to other entities, or circumstances shall not be affected. The
remaining provisions shall continue in full force and effect. The rights and
obligations of the parties shall be cortstmed and enforced as if this Agreement did
not contain the particular invalid provision. However, if the invalid provision or
its application is found by a Court ofenmpctent jurisdiction to be substantive and
to render performance of the remaining provisions unworkable and non-feasible,
and is found to seriously affect the consideration and/or is inseparably connected
to the remainder of this Agreement, then the entire Agreement shall be null and
void.
9.3 Modification. This Agreement represents the entire agreement between the
parties. No change, termination or attempted waiver of any of the provisions of
this Agreement shall be binding on any of thc parties unless executed in writing
by each of the parties. This Agreement shall not be modiI]ed, supplemented or
otherwise affected by the course of dealings between thc parties.
9.4 Benefits. 'ltds Agreement is entered into for the benefit of the parties to this
Agreement only and shall confer no benefits, direct or implied, on any third
persons.
9.5 Assignment. The fights granted by this Agreement may not be assigned without
the written consent of all the parties hereto.
9.6 Supplemcnial Documents And Signature Authority The parties agree to
complete and timely execute all supplemental documents ("Supplemental
Agreements') necessary or appropriate to fully implement the terms of this
Agreement, The following persons shall have the authority to sign or approve all
the agreemcnts specified herein including the CRB Addendum., the Conference
Center Parking Garage Agreement, Change Orders, the insmunents and
agreements specified in Section Seven and the Supplemental Agreement:
For The City: Gary Sexton, Project Coordinator
or Cary Bozcman, Mayor
For KT: Richard Hayes, its Executive Director
INTERLOCAL AGREEMENT Page I 6 of 18 6/I 2/2003
9.7 Filing Of Agreement With Couaty Auditor. Within five (5) days from the date
of this Agreement, as set forth in Section One, the originai ofth~ Agreement shall
be filed by the City with the Kitsap County Auditor, as required by ~e provisions
ofRCW 39.34.040. The City shall provide KT with a conformed copy thereof.
Speeific Performaace. Thc parties acknowledge that any party may r~quire
specific performance of any of thc terms and conditions of this Agreement, in
addition to any other remedies that may be available as a matter of law.
9.9 Complete Agreement.. This Agreement represents the entire agrccment between
thc pasties hereto concerning thc subject matter hereof. This Agreement may not
be amendcO except as ~ovided herein. This Agreement replaces, supersedes and
satisfies the MOU, provided in thc event of a dispute, the MOU may be used as a
resource to explain the underlying history or as an aide to resolve any ambiguities.
However, the tcrms of this Agreement control over any inconsistent provisions of
the MOU.
9.10 Execution In Conaterparts. This Agreement may bc executed in several
counterparts, each of which shall be an original and ail of which shall constitute
but one and the same instrument.
SECTION TEN
OF zxmarrs
The Exhibits to this Agreement consist of the following:
Exhibit I: KT Parcels 1 and 2
Exhibit 2: City Parcels 1-5
Exhibit 3: HOV Garage ~nd CRB Pad
CITY OF BRE~
CARY BOZEMAN, Mayor
INTERLOCAL AGREEMENT Page 17 of 18 6/18~003
9I ~ --~0£HTd~H~J. LVH igglg6909g XV~ 9~:90
Attest:
KATI-~EEN McCluskey, City Cl~rk {
Approved as to form:
KITSAP TRANSIT
KICH.ThRD HAYES, Excculiv~irector
Attest:
CAT, HI£ KNOX-BROWNING, Clia'k oflhe Boar~
ROfigALD C. TEMPLETON, C, en~ral Counsel
INTERLOCAL AGREEMENT Page 18 of 18 6/I 8/2003
EXHIBIT 1
KITSAP TRANSIT PROPERTY
LEGAL DESCRIPTION
ORDER NO- 890745-C3
PARCEL A:
LOTS I AND 2 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN
VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHI~GTOlq;
TOGETHER WITH THAT PORTION OF VACATED ALLEY ADIOINING OR ABU'I lING ON THE
EAST LYING BETWEEN THE PROJECTIONS EASTERLY OF THE NORTH AND SOUTH LINES
OF SAID LOTS, W'HICH UPON VACATION, ATTACHED TO SAID PR.ElViiSES BY OPERATION, OF
LAW: ALSO TOGETHER WITI-I THOSE PORTIONS OF VACATED FRONT (FIKST) STREET AND
WASHINGTON AVENUE ADJOINING OR ABUTTING THEREON~ WHICH UPON VACATION:
ATTACHED TO SAID PREMISES BY OPERATION OF LAW
PARCEL B:
LOT ~ [iq BLOCK 2 OF TOWN OF BREMERTO1V, ACCORDING TO PLAT RECORDED ]IV
VOLUME 2 OF PLATS AT PAGES(S) 30, IN KITSAP COUNTY, WASHINGTON;
TOGETHER 'WITH THAT PORTION OF VACATED ALLEY ADJOIN'lNG OR ABU,. lNG OI~ TH~
EAST LYING BE]3VEEN 3'HE PROJECTION OF THE NORI]-IE. RLY AND sOuTHERLY LINES OF
SAiD LOT 3, WHICH UPON VACATION, A~I'ACHED TO SAID PREMISES BY OPERATION OF
LAW, PURSUANT TO KITSAP COUNTY SUPERIOR COURT CAUSE NO. 66664.
PARCEL C:
LOTS 4, 5. 6 AND 7 IN BLOCK 2 OF TOWN OF BREMEKTON, ACCORDING TO PLAT
RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITS,M) COUNTY, WASHINOTON;
TOGETH]SR WITH THAT PORTION OF VACATED ^1 ,~ ~Ey ADJOINING OR ABU-iTiIVO ON TH~
EAST LY'INO BETWEEN THE SOUTHERLY LINE OF LOT 4 AND THE NOR~Y LI~E OP
LOT 7 PROJECTED EAST, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY
OPERATION OF LAW.
PARCEL D:
THE SOLrTH~ASTERLY 30 FEET OF THE FOLLOWING DESCRIBED PROPERTY:
THAT PORTION OF GOVERNMENT LOT 1, SECTION 34, TOWNSHIP 24 NORTH, RANGE 1
EAST, W.M., IN K1TSAP COUNTY, WASH.LNOTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE NORTHEASTERLY LINE ON FRONT (NOW FIRST)
STREET, BILEMERTON, WASHINGTON, 14 FEET SOUTHEASTERLY FROM THE SOLFfHEAST
CORNER OF LOT I IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT
RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASI-IINOTON;
TI-IE~CE NORTHEASTERLY PARALLEL WITH 1'I4E SOUTHF. ASTERLY LINE OF SAID BLOCK 2
A DISTANCE OF 60 FEET;
THENCE SOUI'HEASTERLY PARALLEL WITH TIlE NORTHEASTERLY LINE OF FRONT
STREET 234 FEET, MORE OR LESS, TO INNER HARBOR LIN-E;
THENCE SOLrI~IWESTFA~Y PARALLEL WITH THE SOUTHEAS I~.KLY LINE OF SAID BLOCK 2
A DISTANCE OF 60 FEET, MORE OR LESS, TO THE NOR'I'HEASTERLY LINE OF FRONT
STREET; THENCE ALONG SAID LINE NORTHWESTERLY TO THE PLACE OF BEGINNING;
Page 1
8I ~ --g0~2d~£X~¥~ Z2~IgG909g XVd gig:gO
TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOIIffllqG OR
ABU'I'I'ING TI-LER~ON, Wl~CH UPON VACATION. ATTACHED TO SAID PREMISES BY
OPERATION OF LAW;
EXCEPT FROM ALL OF THE ABOVE PORTION THEREOF LYING EAS 1 ~KL,Y OF THE INNER
HARBOR LINE,
PARCEL E:
THAT PORTION OF THE GOVERNMENT LOT 1, SECTION 24, TOWNSI-BP 24 NORTH, RANOE 1
EAST, W.M., IN KITSAP CouNTY, WASHINGTON AND THE TIDE LANDS ADJOINING,
DESCRIBED AS FOLLOWS:
COMIV~NCllqG AT THE MOST SOUTHERLY CORNER OF BLOCK 2 OF TOWN OF BREMERTON,
AcCORDInG TO PLAT RECORDED Ri VOLUME 2 OF PLATS AT PAGE(S) 30;
THENCE SOUTH 45~0'30" EAST A.LONG THE NORTHEAST LINE OF FIRST STREET 14.18 FEET
TO THE TRUE POINT OF BEGII'TNIlqG;
THENCE NORTH 35037' 10" EAST 60 FEET;
THENCE SOUTH 45o20'30'' EAST 34.02 FEET;
THENCE NORTH 45o29' 10" EAST 14_17 FEET;
THENCE NORTH 35~6'30" EAST 5.90 I'"EE F TO THE SOUTHWESTERLY CORNER OF EXISTI~O
BRICK BUILDRIG;
T}IENCE ALONG THE SOUTHEASTERLY WALL OF SAID BUILDING AND THE LINE OF SAID
WALL PRODUCED, SOUTH 45 °20'30~ EAST 129.00 FEET;
THENCE SOUTH 41 °53'20" 79.39 PEET, MORE OR LESS, TO A POINT ON THE
NORTHEASTERLY LINE OF FIRST STREET;
THENCE NORTH 45 °20'30" WEST ALONO SAID LINE TO THE TRUE POINT OF BEOIi"qNING;
TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOININO OR
ABUTTING ON THE SOUTH, WH1CI-1 LrPON VACATION, AFl'ACHED TO SAID PREMISES BY
OPERATION OF LAW. EXCEPT THE FOLLOWII'qG DESCRIBED TRACT:
COMMENCINO AT THE MOST SOUTHERLY CORNER OF SAID BLOCK 2;
THENCE SOUTH 45 °20'30" EAST ALONG THE NORTHEASTERLY LINE OF FIRST STREET 14.18
FEET TO THE TRUE POINT OF BEOINNING;
THENCE NORTH 35°37'10'' EAST 60 FEET;
THENCE SOUTH 45 °20'30" EAST 34.02 FEET;
THENCE SOUTHWESTERLY TO A POINT ON THE NORTHEASTEPLLY LINE OF FIRST STREET
WHICH IS SOUTH 45 °20'30" EAST 23.69 FEET FROM THE TRUE POINT OF BEGINNING;
THENCE NORTH 45 °20'30" WEST 23.69 FEET TO TI-IE TRUE POINT OF BEG I'NN RIG;
INCLUDI]N'O WITH SAID EXCEPTED TRACT. THAT PORTION OF VACATED FRONT (FIRST)
STREET ADJOINING OR ABUTFING SA.ID EXCEPTED TRACT ON THE SOUTH, WHICH UPON
VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW.
P~e2
6I[~ --N0;L~4~IdI~t~LXJ. L¥I~ ,~;glg6909g XYd 8g:90 C0/IT~'L0
EXHIBIT 2
CITY PROPERTY
LEGAL DESCRIPTION
ORDER NO. 890744-C3
PARCEL I:
THAT PORTION OF GOVERNMENT LOT 3, SECTION 12, AND THAT POR~I'ION OF
GOVERNMENT LOT 1, SECTION 24, AND TIDELANDS ADJOINING ALL tN TOWNSHIP 24
NORTH, RANGE I EAST. W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS:
COMM'ENCING AT TbIE MOST SOUTHERLY CORNER OF LOT 1 IN BLOCK 2 OF TOWN OF
BREMERTON, ACCORDING TO PLAT RECORDED rN VOLUME 2 OF PLATS AT PAGF~S) 30, IN
IrdTSAP COUNTY, WASP,_INGTON;
THENCE SOUTH 45 °20'30'~ EAST ALONG THE NORTHEASTERLY MARGIN OF FIleT STREET
(FRONT STREET) IN SAID PLAT A DISTANCE OF 14.18 FEET TO THE MOST SOUTI-!.ERLY
CORNER OF AN ALLEY DELINEATED ON BLOCK 2 OF SAm PLAT;
THENCE NORTH 35 °37' 10" EAST ON 60.00 PEET ALONG SAID DELINEATED ALLEY TO THE
TRUE POINT OF BEGINNING, WHICH IS ALSO CALLED POINT ~'A" FOR REFERENCE
PURPOSES;
THENCE SOUTH 45 °20'30" EAST PARALLEL TO THE NORTHEASTERLY MARGIN OF FIRST
STREET (FRONT STREET) TO AN INTERSECTION ~ THE INNER ~OR LINE
DELINEATED ON 1958 SUPPLEMENTAL MAP OF BKEMERTON TIDELANDS, ON FILE IN THE
OFFICE OF TH~ COMMISSIONER OF PUBLIC LANDS, OLYMPIA, WASHING2'ON;
THENCE NORTHEASTERLY ALONG SAIl) ]lql'qER I-I~RBOR LLNE TO TI-I~ SOUTHWESTERLY
MARGIN OF SECOND STREET AS DELINEATED ON SAID SUPPLEMENTAL MAP.
THENCE NORTHWESTERLY ALONG SAID MARGIN TO A POINT ON THE MOST EAST~KL¥
CORNER OF THE ALLEY DELINEATED ON BLOCK 2 IN PLAT OF TOWN OF BREMERTON;
THENCE SOUTH 35°37' 10' WEST ALONG SAID ALLEY 24721.FEET TO THE TRUE POINT OF
BEGINNING;
EXCEPT THAT PORTION DESCRIBED AS FOLLOWS:
COMMENCING AT POINT "A" I-IERETOFORE DESCRIBED;
THENCE SOUTH 45 °20'30" EAST PARALLEL TO TIdE NORTI~ASTERLY MARGIN OF FIRST
STREET 34.02 FEET TO THE TRUE POINT OF BEGINNING OF THIS EXCEPTION;
THENCE NORTH 45 °29' 10" EAST 14.17 FEET;
THENCE NORTH 35 °36'30" EAST 5.90 FEET TO THE SOUTHWEST CORNER OF AN EXISTING
BRICK BUILDING;
TItENCE SOUTI-145 °20'30~' EAST ALONG THE SOUTHEASTERLY WALL THEREOF 129 FEET;
THENCE SOUT~ 41 °53'20' WEST 20 FEET, MORE OR LESS, TO THE SOUTHWEST BOUNDARY
OF THE MAIN TRACT HERETOFORE DESCRIBED;
THENCE NORTH 45 °20'30" WEST 129.41 FEET, MORE OR LESS, TO THE TRUE POINT OF
BEGINNING_
PARCEL Il:
COMMENCING AT A POINT ON THE NORTHEASTERLY LINE OF FRONT STREET, ALSO
KNO~/N AS FIRST STREET, BRE_MERTON~ WASHINGTON, ~VHICH I$ SOLrI~145o20'30" EAST A
DISTANCE OF 14.18 FEET FROM THE SOUTHEAST CORNER OF LOT 1 IN BLOCK 2 OF
ORIGINAL PLAT OF THE TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN
VOLUIv~ 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON;
THENCE NORTH 35 °37' 10" EAST FOR A DISTANCE OF 60 FEET;
Page I
TttF-~ICE SOUTH 45 °20'30" EAST FOR A DISTANCE OF 163.43 FEET TO THE TRUE POINT Of
BEGrNNI~G;
THENCE SOU~ 45 ~0'3~ EAST 45 FEET;
~NCE SO~ 41°53'20' ~ST 5939 FE~, MO~ OK ~SS, TO ~ NORT~AS~Y L~
OF SAID ~O~ ST~T ff~gT ST~ET);
THENCE NORTH~S~Y ~ONG ~E NOR~ASTE~Y L~E OF ~O~ S~T ff~ST
S~ET) ~5 F~T;
~NCE NOR~ 41 °53'20" ~ST 59.39 FEET, MO~ OR LESS, TO ~ ADJO~G OR
AB~G ~REON, W~CH ~N VACA~ON, A~'AC~ TO SA~ P~SES BY
OPEn. ON OF LAW.
P~L 11[:
~AT ~R~ON OF GO~NT LOT I, SECTION 24, TO~S~ 24 NORT~ ~GE I
EAST, W.M.. ~D ~ ~DE~S ADJOIN~G, ~ K[TS~ CO~Y, WAS~GTON,
DESCRIBED AS FOLLOWS:
CO~C~G AT T~ MOST SOUT~RI.Y ~ER OF ~T 1 IN BL~K 2 OF TO~ OF
B~MERTON, ACCO~G TO T~ PLAT ~CO~ ~ VOLU~ 2 OF PLA~ AT PAGE(S)
30, IN ~S~ CO~, WAS~NG~N;
T~NCE SOO~ 4~ ~0'30TM ~ST ~ONG ~ NOR~SI'~Y L~ OF ~T
(FRO~ S~ 14.18 ~ET TO ~ ~ POINT OF BEG~G;
~NCE NORTH 35°31'10'' EAST 60 FEET;
T~CE SOUTH 45 ~0'3ff' EAST 34.~
T~NCE SOUTHerlY TO A ~T ON T~ NORTHEASTE~Y L~E OF F~T S~EET
~CH IS ~ 45~0'3~ ~ST ~.69 FEET ~OM ~E
T~CE NORI~ 45 ~0'30' WEST ~.~ F~T TO ~ ~UE PO~T OF BEG~G;
T~E~R WITH T~T ~RTION OF VACA~D FRO~ ~ S~ ADIO~G OR
~[NG ~ON. W~CH ~N VACA~ON, A~AC~D TO SAID P~SES BY
OPE~TION OF LAW.
P~C~L W.
LO~ 8 AND 9 IN B~K 2 OF TO~ OF B~MER~, ACk.lNG TO ~AT ~CO~
VOL~E 2 OF PLATS AT PAGE(S) 30, ~ KiT~ CO~, WAS~GTON;
T~E~R WITH T~T ~R~ON OF VACA~D ~Y
~KEON, ~CH U~N VACA~ON, A~AC~D ~ SAID P~SES BY OPEn. ON OF
LAW
P~¢2
[g~ --NO,L~!i~IdPi~I.L.!.'I£VP! t-!gI~69091; XYA t~C:t~O C0/Ig.'L0
+Browse: Next Previous First Last Update Delete Restart X - Exit
+Retrieve the Next record
+Found: 10 Record(s) MAINTAIN Contract Transactions
+ Contract Number 4264
+
+Vendor Name KITSAP TPg~NSIT
+Subject CONFERENCE CENTER & BTC PHASE D PROJECTS
+Department EXECUTIVE
+Status Code MOU
+ Amount
+ Begin Date 04/02/2002
+ Insurance End Date
+ Type Amount Review Date 06/15/2004
+
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+ Insurance Total $0.00
+ Insurance Review Date
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+ Comments REVIEW DATE FOR TRACKING PURPOSES ONLY
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MEMORANDUM OF UNDERSTANDING
City Conference Center Project and BTC Phase D Project
This Memorandum Of Understanding (the "Aereement"~ is '~.~ ~-- ~-~ '- ......
of Bre----' .,,~,_. ..... , ~e~ / ,~,~au~ VY mm oetween me Ui~y
me~ton [ ~ay ) ano r~tsap Transit as of the ~_ day of_~s ! ,2002.
SECTION ONE
Recitals And Preliminsrv A~,reemen~'~
1. I Be~innin$ in 1995, the City and Kitsap Transit and other entities have been working
together to seek an innovative and integrated redevelopment of portions of the central
waterfi'ont City of Bremerton. Initially, tiffs project was known as the "Sinclair Landing
ProJect , herea~er, the Master Project". Due to its proximity to the Wasiffn~ton State
Ferry terminal, the "Master Project" was intended to include "transit-oriented
development", which would include a number of public and private features, including a
new transit center, offce space, retail uses, restaurants, a hotel, residential units, theatre,
museums, maritime attractions, a public watergont park and promenade, plaza and access
corridors to the central waterfront and transit center, public parking facilities, marina
improvements and similar public, private and mixed use public and private project
features.
1.2 An essential component of the Master Project was the development of an intermodel
transportation center to include transit, passenger only and car ferry service, commuter
retail facilities, other uses and similar features. This element of the Master Project is
known as the "Bremerton Transportation Center" or "BTC" and specifically contemplated
the construetion ora building for commuter-oriented retail use and office use, known as
the "Commuter Retml Building' or "CRB Building".
1.3 Kitsap Transit was designated as the lead a~ency to complete the BTC component. The
BTC component was to be undertaken in phases. The Federal Transit Administration
"FT"
( A ) and State of Washin~tnn Department of Transportation authorized ~rants for the
BTC recognizing that associated economic development wili enhance the effectiveness and
coordination of Kitsap Transit and Wasiffn~ton State Ferry services.
1.4 "Phases A & B" of the BTC have been completed. Those phases included the
~onstmction ora new fen3' terminal, passenger-oniy ferny dock, transit center, and related
~mprovements.
1.$ Phases A & B of the BTC also included the construction of parking facilities for
occupancy vehicles (hereina_Qer referred to as the 'TIOV Garage"). The HOV Garage was
MEMOILANDUM OF UNDI~RSTANDING _ 1
(Final 3-6-02)
designed and constructed to accommodate the future construction of a two or three story
building (the "Commuter Retail Building") above the HOV Garage for commuter-oriented
retail uses and office use. This building pad (the "CRB Pad") is approximately 10,000
square feet in size.
1.6 The CRB Pad and HOV Garage were built on (i) a segment of City Property (hereinafter,
"City Parcel 1") pursuant to a prior MOU known as the SLA MOU and (ii) on abutting
property separately acquired by and now owned by Kitsap Transit.
1.7 Access to the HOV Garage is derived by means of one or more access lanes (the "HOV
Access") that cross an abutting parcel of land owned by the City ("City Parcel 2").
The HOV Access is more fully addressed in the HOV Access Addendum attached hereto
as Exhibit 2 and incorporated into this Agreement as though fully set forth herein.
1.8 In 2000, Transit submitted and received preliminary approval for a supplemental grant (the
"Phase D FTA Grant") in the approximate amount of $3.3 million dollars from the FTA to
undertake and complete "Phase D" of the BTC, hereinafter referred to as the "Phase D
BTC Project'? As approved, the Phase D BTC Project is premised upon the following
features:
a. Kitsap Transit's acquisition of the following property or property interests
(collectively, the "Enetai Site"):
(i) Fee title to the Enetai Plaza Building from a private owner;
(ii) The right to construct portions of its proposed 3 level parking garage
beneath, (measured from Washington Grade) a parcel of land ("City Parcel
3") northeasterly of the Enetai Plaza Building and the southerly 20 feet of
the Washington Avenue right-of-way ("City Parcel 4") abutting the Enetai
Plaza Building and City Parcel 3, both of which are owned by the City.
b. Kitsap Transit's demolition of the Enetai Plaza Building and the excavation of the
Enetai Site?
The Grant required a local match of approximately $500,000.00. These local funds were
obtained from State and local funds which were funded and expended. Kitsap Transit also
received separate preliminary approval to complete "Phase C" of the BTC. Phase C involves the
expansion of the feny vehicle holding area and toll booths and is not materially relevant to this
Agreement. Kitsap Transit will independently pursue the Phase C BTC Project.
2 Removal and remediation of the contaminated soils beneath the Enetal Plaza Building was not
specifically included in the grant request.
MEMORANDUM OF UNDERSTANDING - 2
(Final 3-6-02)
c. Kitsap Transit's construction ofa 3 story (below the Washington Avenue grade)
parking structure (the "Enetai Garage") on the Enetal Site which was estimated to
accommodate not more than 175 parking spaces and an area for passenger-only
ferry pick-up and drop-off. Kitsap Transit generally contemplated the Enetal
Garage would be designed and constructed to accommodate the future construc-
tion by the City (or its assigns) of up to a six story building measured from the
Washington Avenue grade, for a variety of mixed uses.
1.9 Of the estimated parking spaces available in the Enetai Garage, Kitsap Transit
contemplates it will need approximately 75-125 spaces for direct transit-related purposes,
including Kitsap Transit's electric car station program. Kitsap Transit contemplated that it
may transfer or lease the remaining spaces to generate revenues for transit-related
purposes.
1.10 Because Federal funds are involved in the Phase D BTC Project, Kitsap Transit is required
to comply with the National Environmental Protection Act ("N-EPA") and other Federal
requirements including Federal contracting requirements.
1.11 The FTA is the lead Federal agency for the Phase D BTC Project for purposes of
compliance with Federal requirements for environmental review, funding, project
monitoring and audit. On May 5, 2001, the FTA issued its Finding Of No Significant
Impact ("FONSI") for the Phase D BTC Project.
1.12 Kitsap Transit has acquired the Enetai Plaza Building from a private owner? The Enetal
Plaza Building is currently occupied by the City's Naval Museum, a coffee shop, a
computer consulting firm known as SRA and a day care facility.
1.13 The Enetal Site contains petroleum contaminated soils. The source of this contamination
has been attributed to an underground gasoline tank located in the Washington Avenue
right-of-way (City Parcel 4). The tank was apparently placed in the City's right-of-way
sometime prior to 1910 by a prior owner or tenant of the Enetal Plaza Building.
1.14 In connection with the future construction of building improvements over the CRB Pad
and/or adjacent properties, Kitsap Transit desires to lease up to 12,000 square feet of
second story office space for Kitsap Transit's use (the "Kitsap Transit Office Space").
1.15 Kitsap Transit has heretofore expended approximately $800,000.00 on the Phase D BTC
Project, leaving a balance of approximately $3 million dollars of anticipated FTA Grant
funds available to complete the Phase D BTC Project.
3 The property was acquired by means of a pm-award "hardship" approval.
MEMORANDUM OF UNDERSTANDING - 3
(Final 3-6-02)
1.16 The City has received funding/stent approval (the "PFD Grant") fi.om the Kitsap County
Public Facilities District ("PFD") in the approximate sum of $6.9 million dollars for the
design and construction of a Regional Conference Center, including associated parking
facilities. Pursuant to the PFD Grant, construction of the Conference Center must
commence by January 1, 2003.
1.17 Transit-Oriented Developments ("TODs") increase the use of the mass transit modes of
transportation and encourage reduced dependency on single-vehicular trips.
1.18 The City desires to coordinate the construction of the Conference Center with its long-
term goal of encouraging the development of the City's central business core in a way that
further enhances the use of mass transit modes of transportation.
1.19 The City desires to commence the first phase of the City's development project (the
"Conference Center Project") within the general Project boundaries identified on Exhibit
1. The Conference Center Project will include the following features:
a. Conference Center. A regional conference center owned and operated by the City.
b. Hotel. A hotel owned and operated by a private developer.
c. Restaurant. Restaurant facilities adequate to service banquets and conferences in
the Conference Center owned and operated by a private developer.
d. Parkine Facilities. Parking facilities ("City Parking Facilities") owned by the City
to accommodate the Hotel and Conference Center and other uses associated with
the Conference Center Project.
e. Retail and Office. The potential construction of one or more buildings by a private
developer for a variety of uses, including office and retail.
f. Residential. The construction of privately owned residential units.4
g. Park Facilities. The construction of public park facilities.
h. Pedestrian Access. Pedestrian walkways and access through the Conference
Center Project for access to the Transit Center, Waterfront, Downtown Business
Core and the components of the Conference Center Project.
1.20 Siting the Conference Center, Hotel and related facilities adjacent to the Transit Center
It is possible there may be participation by the Kitsap County Consolidated Housing Authority.
MEMORANDUM OF UNDERSTANDING - 4
(Final 3-6-02)
will encourage increased use of the mass transit modes of transportation afforded by the
Transit Center. Accordingly, the parties believe the Conference Center Project is a TOD.
1.21 It is anticipated that funding for the public features of the Conference Center Project will
be derived from some or all of the following sources:
a. Revenue Bonds issued by the City;
b. Section 108 HUD block grant funds;
c. PFD bond/grant funds.
1.22 The City and Kitsap Transit desire to orplore the coordination and integration of the
common features and elements of the Phase D BTC Project and the Conference Center
Project as a joint development project (collectively, the "Joint Project"), including parking
facilities and the construction of improvements over the CRB Pad including specifically
the Commuter Retail Building. It is the City's specific desire to integrate the design and
construction of the City Parking Facilities needed for the Conference Center Project with
the Enetai Garage. Subject to the concurrence of the FTA, Kitsap Transit is willing to
allow the City to lease, acquire and/or use the non-dedicated parking spaces available in
the Enetai Garage for uses associated with the City's Conference Center Project.
Hereafter, references to the "Joint Project" means and includes all the elements of the
Phase D BTC Project, the development of the Commuter Retail Building and the City's
Conference Center Project. References to the "City's Parking Facilities" shall refer to the
parking facilities the City needs to construct and/or own to consummate the City's
Conference Center Project. Collectively, the Enetai Garage and the City's Parking
Facilities shall, for convenience, sometimes be referred to as "Project Parking Facilities".
The "Commuter Retail Building" means a building which at a minimum will include not
less than 10,000 square feet of Washington Avenue grade level commuter-oriented retail
space, not less than 10,000 square feet of upper level office space for lease by Kitsap
Transit and pedestrian easements and canopies for access to Transit Center.
1.23 The presence of too many parking spaces can adversely effect the effectiveness of TODs.
During the Preliminary Phase of the Joint Project the parties shall negotiate the
appropriate number of parking spaces.
1.24 Because some Conference Center Project parking will occur on the Enetai Site, the PFD
has previously acknowledged that the demolition of the Enetal Plaza Building will
constitute "commencement" of construction of the Conference Center for purposes of
compliance with the PFD Grant conditions.
1.25 The FTA has previously designated Kitsap Transit as the local lead agency to complete the
MEMORANDUM OF UNDERSTANDING - 5
(Final 3-6-02)
Phase D BTC Project in compliance with all applicable Federal requirements. Kitsap
Transit is authorized to delegate its responsibilities, but notwithstanding such delegation
remains obligated to the FTA to insure all Federal requirements are met. The City desires
to assume the responsibilities of the lead local agency to undertake and complete the Joint
Project. To the extent permissible under applicable Federal and State law, Kitsap Transit
is willing to delegate its responsibilities to the City so long as the City complies with all
applicable Federal requirements.
1.26 The City intends to secure a Developer (the "Developer") to construct all the
improvements required for the completion of the Joint Project. In securing such
Developer, the City intends to employ a competitive process that complies with all
applicable requirements and, in particular, as it relates to any work on land subject to the
BTC FONSI and/or the use of Federal funds. It is generally contemplated the City will
assume responsibility for the preparation of a Request For Proposal (the "RFP") for the
design, construction and potential management of the Joint Project.
1.27 Kitsap Transit previously received approval for the issuance of a $20,000.00 grant (the
"PSRC Grant") for the preparation ora RFP relative to the Joint Project which obligates
Kitsap Transit to serve as the Contracting Agency for the retention of the consulting firm
that will draft the RFP.
1.28 During the course of completing the Phase A & B BTC improvements, in response to
public input, Kitsap Transit and the City recognized some need to develop Kiss-N-Ride
facilities available to the general public near the Transit Center. As a temporary solution,
Kiss-N-Ride facilities are currently located on City Parcel 2 immediately adjacent to the
HOV Garage and access thereto is derived by means of the HOV Access. Kitsap Transit
currently provides Kiss-N-Ride spaces for disabled persons and taxi service on the BTC
transit deck abutting the Transit Center.
The City generally believes the City's Conference Center Project may not lend itself to the
continuation of general public Kiss-N-Ride facilities in the current location. The City
acknowledges and agrees that use of the BTC transit deck for general public Kiss-N-Ride
use violates the terms of the Phase A & B FTA grant funding and such use will not be
proposed by the City or its Developer.
Until such time as increased levels of transit operations render the continued use of the
BTC Transit Deck for taxis and disabled Kiss-N-Ride services impracticable, Kitsap
Transit will continue to provide space for taxi and disabled Kiss-N-Ride services on the
BTC Transit Deck, subject to such rules as Kitsap Transit may develop to protect the safe
and efficient use of the BTC Transit Deck.
Kitsap Transit and the City agree that a joint circulation planning study will be undertaken
MEMORANDUM OF UNDERSTANDING - 6
(Final 3-6-02)
for the downtown area that will include an examination of Kiss-N-Ride facilities at a
location other than the Transit Deck or HOV Garage, in accordance with the "Scope of
Service" outline attached as Schedule A hereto.
1.29 During the course of construction of Phases A & B of the BTC, Kitsap Transit caused
utility lines to be installed on City Parcel 2 adjacent to the waterfront within an easement
granted by the City (the "Utility Easement"). It is believed the utilities were sized to
accommodate connections thereto sufficient to support the same or all of the intended
elements of the Joint Project, including, in particular, the Phase D BTC Project..
1.30 Kitsap Transit and the City recognize the importance of public involvement and
participation in any joint planning process and agree to work to establish a means to insure
a meaningful opportunity for public comment, input and/or involvement.
1.31 Through an innovative joint design process involving input from the proposed Developer,
the City, Kitsap Transit and the PFD, the parties contemplate that a more precise
development proposal (the "Final Development Plan") will emerge setting forth the full
extent of the Joint Project, the anticipated costs thereof and the parties' expected roles,
responsibilities and interests with respect to the Joint Project and the properties within the
Project boundaries.
Once the Developer is selected, the Final Development Plan is approved, the parties
anticipate that a detailed Intedocal Agreement will be negotiated and executed to fully
define the parties' responsibilities, roles and interests in the Joint Project components.
1.32 The purpose of this Agreement is to
a. Provide a general outline to enable the parties to explore undertaking the Joint
Project and to set forth the parties intended or anticipated roles and responsibilities
with respect to such Joint Project;
b. Set forth the parties' roles and responsibilities during the "Preliminary Phase" as
that term is defined in Section 1.33 below; and
c. Set forth the parties' roles and responsibilities should the parties fail to approve the
Final Development Plan and execute the Joint Project Interlocal Agreement.
1.33 The term "Preliminary Phase" as used in this Agreement is intended to denote all activities
that may be undertaken prior to the parties' formal acceptance of the Final Development
Plan and execution of the Joint Development Interlocal Agreement. Kitsap Transit desires
to explore the pursuit of the Joint Project in a manner that does not jeopardize its
anticipated FTA grant or the potential independent completion of the Phase D BTC
MEMORANDUM OF UNDERSTANDING - 7
(Final 3-6-02)
Project if the Joint Project cannot be undertaken. During the Preliminary Phase:
a. Each party shah use its best efforts to lawfully undertake the responsibilities
specifically allocated to such party hereunder (relative to Preliminary Phase
activities);
b. Any costs, fees or expenses advanced or incurred by either party during the
Preliminary Phase shall be at the sole cost and risk of the party who advanced or
incurred same and such party shall save, indemnify and hold the other party
harmless from same and from any liability for any action taken by such party
(provided, if the Joint Development is consummated, a party shall be entitled to
reimbursement ora "Shared Joint Project Expense" as set forth in Section 2.12).
c. Kitsap Transit may continue moving forward with certain preliminary planning and
design work consistent with the independent pursuit of Kitsap Transit's Phase D
BTC Project.
1.34 This A4greemeut and ail Intedocal Agreements that may be executed pursuant to this
Agreement shall be approved by the parties respective Board and Council through
authorized resolutions.
SECTION TWO
General Terms
2.1 Lead A~en~. It is generally contemplated that the City will serve as the lead local agency
responsible for the completion of the Joint Project.
2.2 Removal Of Enctai Plaza Buildina Ten,htS. Responsibility for the removal of the existing
Enetai Plaza Building Tenants shall be allocated as follows:
a. The City shah be solely responsible to provide for the relocation of the City's
Naval Museum at it's sole cost.
b. Kitsap Transit will be solely responsible for the relocation of the day care facility at
it's sole cost. Kitsap Transit shall use its best efforts to relocate the Coffee Shop
to meet the Joint Project time lines, subject to and in compliance with ail applicable
Federal and State laws.
c. Kitsap Transit shall use its best efforts to insure SRA and the day care center
operator vacate the premises to meet the Joint Project time lines, subject to and in
compliance with ail Federal and State laws.
MEMORANDUM OF UNDERSTANDING - 8
(Final 3-6-02)
d. Kitsap Transit will advance and pay all sums (the "Base Costs") required by the
Uniform Relocation Assistance Act that may be due the Coffee Shop or SRA
tenants, if any. In the event the City requires the removal of such two tenants
earlier than the permissible time flame under Federal law, the parties will, by
separate agreement, allocate between the parties the payment of any supplemental
sums above the Base Costs necessary to assure such removal.
2.3 Developer Selection.
2.3.1 Preparation Of RFP. During the Preliminary Phase, Kitsap Transit, as the
"Contracting Agency", will contract with Art Anderson & Associates to prepare
the RFP. The City will serve as the "lead agency" responsible for overseeing the
preparation and completion of the RFP in compliance with ail applicable Federai,
State and locai requirements, ffrequired by the PSRC, a separate RFP Inteflocal
Agreement will be prepared regarding the preparation, oversight, completion,
issuance, approval and payment of the RFP.
Kitsap Transit, through the use of the PSRC Grant will advance the first
$20,000.00 of the costs associated with the RFP. The City shail advance the
baiance unless the parties hereafter negotiate a separate ailocation.
2.3.2 Approval Of RFP. The City will not publish or transmit the RFP until Kitsap
Transit approves the final draft thereof. It is anticipated that so long as Kitsap
Transit has obtained the FTA Grant Award, Kitsap Transit will approve the RFP
and so long as it complies with all applicable Federal, State and local requirements
and adequately addresses Kitsap Transit's interests in the Joint Project.
2.3.3 Selection Of Devel0per. The City and Kitsap Transit will jointly review and
approve ail proposals submitted in response to the RFP and select the Developer.
2.4 Desi~ma Phase. The City, Kitsap Transit, the Developer and the PFD will work
collaboratively on mutually agreeable designs, site plans, construction plans and
specifications, operation and management plans and contracts fully setting forth the
elements and features of the Project so the Final Development Plan can be concluded and
mutuaily approved.
2.5 Demolition OfEnetai Pl~za Building. Once (i) Kitsap Transit has approved the RFP, the
Developer and at least preliminary Schematic Design, Site and Development Plan and a
preliminary project budget; (ii) Kitsap Transit has received the FTA Grant Award and/or it
is satisfied that it may proceed with demolition without jeopardizing the FTA Grant; (iii)
ail existing occupants of the Enetai Plaza Building have vacated the building; and (iv) ail
necessmy demolition permits and approvals have been obtained, it is anticipated that
MEMORANDUM OF UNDERSTANDING - 9
(Final 3-6-02)
Kitsap Transit will contract with the City to commence the mediate demolition of the
Enetai Plaza Building. It is anticipated that demolition will occur in the summer or fail of
2002 and such demolition shall be deemed the "Commencement" of the City Conference
Center Project pursuant to the PFD Grant. Initially, Kitsap Transit will advance the cost
of such condition.
2.6 Remediation Of Contaminated $giis. Following the demolition of the Enetai Plaza
Building, it is anticipated the City will provide for the lawful remediation of ail
contaminated soils on the Enetal Site. Such remediation shall be completed in compliance
with all local, State and Federal regulations, including the State Environmentai Policy Act,
CERCLA (42 USC 9603), MTCA OtCW 70.105(D), and the Clean Water Act (33 USC
§ 1321). It is anticipated that initially Kitsap Transit will advance the remediation costs.
Both parties shall explore the availability of additional grant funds for the remediation of
their respective properties encompassed within the Enetai Site.
2.7 Permits. The City (and/or the Developer) will be solely responsible for obtaining ail
necessary permits and approvais necessary for the construction of ail Joint Project
improvements, including the permits required for the Demolition of the Enetai Plaza
Building and Remediation of the Enetal Site.
2.8 Administration.
2.8.1 In General. Once the Final Development Plan is approved, to the extent
permissible under all applicable Federai, State and local laws, the City will solicit,
award and administer ail third-party contracts for the design, construction and
completion of the Project in compliance with ail applicable Federal, State and locai
requkements and oversee the timely completion and construction of ail Joint
Project improvements. The City specificaily acknowledges that all work relating
to the Phase D BTC project must comply with the Federal contracting
requirements set forth in FTA Circular C4220.1D as may from time to time be
supplemented or amended and in the FTA Master Agreement dated October 1,
2001 as may be subsequently supplemented and amended to conform with any
required FTA concurrence relative to the Joint Project.
2.8.2 Project Monitoring And R~view By Kitsap Transit. It is anticipated that Kitsap
Transit will reserve the fight to retain or provide third-party services for
Alternative Cost Analysis, Federal Compliance monitoring and general project
monitoring (collectively "Project Monitoring") as a Shared Joint Project Expense.
At the request of Kitsap Transit, the City will provide copies of and/or permit the
inspection and/or audit of all contracts, documents, plans, specifications, permits
and records that pertain to the Joint Project. During the course of construction,
the City will permit Kitsap Transit and/or its designated representatives access to
MEMORANDUM OF UNDERSTANDING - 10
(Final 3-6-02)
the site to inspect, test and/or monitor any and all work encompassed within the
Phase D BTC Project and Commuter Retail Building portions of the Project.
2.8.3 Indemnification. The City stroll assume, defend, save, indemnify and hold Kitsap
Transit harmless from all clain~ and liabilities associated with or related to the
preparation of the RFP, the selection of the Developer and the design and
construction of the Joint Project improvements, including claims arising from the
City's failure to obtain any required permits or approvals, the City's failure to
adhere to any State or Federal contracting, procurement, public work or
administration requirements, design flaws and claims relating to the demolition,
excavation and remediation work of the Enetai Site, (excluding prior ownership
and contamination liability and responsibility; which shall be allocated under
applicable federal and state law).
2.9 Mutual Cooperation And Proiect Renresentativcs. During all stages of the Joint Project,
including the Preliminary Phase, each party shall designate a representative ("Designated
Representative") who will serve as the official contact person for that party regarding the
implementation of any provision of this Agreement. The Designated Representative may
be changed at any time by giving written notice of the change to the Designated
Representative of the other party. The initial Designated Representative for each party,
and their address, phone number and fax number and e-mail address is attached hereto as
Schedule B.
Final Selection of the Developer, review and approval of ail contracts, substantial and finai
acceptance of construction and ail other similar major activities shall require the approval
by the Designated Representatives. In addition, the above-listed events and activities shall
be subject to the review of and input from the PFD Board and/or its Designated
Representative, and the FTA as may be required.
During the development of the RFP and subsequent Design phase, the design and
budgeted expenses to complete the Joint Project shall be established and mutually
approved by Kitsap Transit, the City and the Developer, all of which shall be set forth in
the Final Development Plan.
2.10 FTA Concurrence. Kitsap Transit shall use its best efforts to seek FTA concurrence for
the Joint Project, if required. Kitsap Transit reserves the right to withhold its consent to
the City's selection of the Developer and/or approval of the Design until such concurrence
is obtained. In the event the FTA withholds or fails to provide its concurrence, Kitsap
Transit may terminate this Agreement.
2.11 Additional Agreements. The City and Kitsap Transit acknowledge that the completion of
the Joint Project will require the negotiation and execution of certain additional contracts
MEMORANDUM OF UNDERSTANDING - 11
(Final 3-6-02)
and agreements ("Collateral Agreements") including the following:
2.11.1 Joint Project Inteflocal A~reement. An Interlocal Agreement between the City and Kitsap
Transit for the full implementation and consummation oftbe Joint Project and Final
Development Plan, including payment and funding for all Joint Project expenses.
2.11.2 Kitsan Transit Office Lease. During the Preliminary Phase, it is contemplated that
Kitsap Transit will negotiate directly with the Developer for Kitsap Transit's
potential lease of the Kitsap Transit Office Space. The City's Project Manager
shall be entitled to be present during these negotiations and provide input so as to
insure integration oft}tis element with the overall Joint Project.
2.11.3 HOV Access. The negotiation and execution of a satisfactory Easement for Kitsap
Transit's on-going access to the HOV Garage as more fully addressed in the HOV
Access Addendum.
2.11.4 Cross Easements. Cross easements to provide for pedestrian and vehicular access
and ingress and egress through, to and from the Joint Project parking facilities and
Washington Avenue and pedestrian access to the passenger-only pier, the Transit
Center, the Waterfront, the Hotel, the Conference Center, the Restaurant, the
proposed building improvements on the CRB Pad and Enetai site and the Joint
Project parking facilities.
2.11.5 CRB Buildim~ Construction. During the design phase, it is anticipated that the
City and Kitsap Transit will jointly negotiate directly with the Developer for the
design and construction of the Commuter Retail Building and/or any other specific
building improvements above the CRB Pad.
2.11.6 Restrictive Covenants. It is generally contemplated that a restrictive covenant that
restricts the use of not less than 12,000 square feet of ground level (measured from
Washington Avenue) retail space within any building improvements over the CRB
and/or adjacent property to commuter-oriented retail use will be jointly negotiated
with the Developer. In addition, if required by the FTA, additional restrictive
covenants may apply to the transfer of air rights above the Enetal Site or CRB Pad
as listed in Paragraph 9(a) of Appendix B to FTA Circular 9300. lA.
2.11.7 Instruments Of Conveyance. Instruments of conveyance necessary to perfect
and/or transfer ownership of the various parcels of land consistent with the
intended property ownership that will be negotiated during the Preliminary Phase.
2.11.8 Utility Easement A~eement. During the Preliminary Phase, it is expected the
MEMORANDUM OF UNDERSTANDING - 12
(Final 3-6-02)
parties will negotiate and execute an Utility Easement Agreement to address the
parties' respective interests and concerns relative thereto.
2.11.9 Parking, Management Agrli~a0nt. The Parking Management Agreement identified
in Section 2.16.
2.11.10 Miscellaneous. Such other and further documents as may be reasonably
necessary to enable each party to comply with its obligations under this Agreement, to
obtain any necessapy approvals and permits and/or to lawfully secure sources of funding
available to a party.
2.12 Shared Joint Project Exoenses. As used in this Agreement, the term "Shared Joint Project
Expenses" shall include the followins:
a. The cost of demolition of the Enetai Plaza Building;
b. The cost of the Enetal Site remediation, less any sources of additional new grant
funding either party may obtain specifically earmarked for such remediation;
c. All costs associated with the construction of the Joint Parking Facilities including a
pro-rata share of the fees incurred in the preparation of the Joint Project RFP and
design and permit fees attributable to the construction of the Joint Parking
Facilities, excluding, however, any Special Accommodation Costs as defined in the
HOV Access Addendum and allocated solely to Kitsap Transit;
d. Supplemental tenant relocation costs the parties may hereafter agree that should be
considered a Shared Joint Project Expense; and
e. The costs of Project Monitoring as described in Section 2.8.2.
During the Preliminmy Phase a Project Budget shall be established and mutually approved
setting forth the actual projected Shared Joint Project Expenses.
At all stages of the Joint Project, Shared Joint Project Expenses shall be segregated and
separately tracked, monitored and accoumed. Shared Joim Project Expenses shall not
include the parties' respective attorney fees or the fees of their Designated Representatives
or other project representatives.
2.13 Payment Of Proiect Costs. All costs, fees and expenses associated with the Joint Project
shall be allocated between and paid by the City and Kitsap Transit as follows:
2.13.1 Kitsan Transit. Kitsap Transit shall pay for the following:
MEMORANDUM OF UNDERSTANDING - 13
(Final 3-6-02)
a. Base Relocation Costs for the SRA. and Coffee Shop tenants, all relocation
costs relative to the day care operation and any supplemental relocation
costs Kitsap Transit may expressly agree to assume.
b. The Special Accommodation costs as described and defined in the HOV
Access Addendum as may be allocated to Kitsap Transit pursuant thereto.
c. Three Million Dollars oftbe total Shared Joint Project Expenses, less the
amounts Kitsap Transit expends on tenant relocation costs pursuant to
subparagraph (a) above and the Special Accommodation costs allocated to
Kitsap Transit pursuant to the HOV Access Addendum. Hereafter, this
resultant sum (i.e. $3 million less the subparagraphs (a) and (b) and
reductions), shall be referred to as the "KT Base Share".
d. Such additional contributions toward the total Shared Joint Project
Expenses as Kitsap Transit may, in its sole discretion, deem is necessary to
meet Kitsap Transit's minimum parking needs, which additional
contribution shall be referred to as the "KT Supplemental Share".
e. Costs and fees associated with the negotiation of the Kitsap Transit Office
Space lease and costs, fees and expenses associated with the space,
including design and tenant improvement costs.
Attorney fees incurred by Kitsap Transit relative to the Joint Project.
g. Costs and fees associated with the negotiation and completion of building
improvements over the CRB as may be negotiated by Kitsap Transit and
the Developer.
2.13.2 City. The City will pay alt other Joint Project Expenses and all other expenses
associated with or related to the Conference Center Project and shall save,
indemnify and hold Kitsap Transit harmless therefrom.
2.14 Allocation Of Pronerty Interests And Ownership.
2.14.1 Allocation Of Joint Parkimt Facilities. It is generally contemplated on the
completion of the Joint Parking Facilities, all the available parking spaces ("Total
Parking Spaces") created and/or developed within the Joint Parking Facilities shall
be allocated to Kitsap Transit and the City as follows:
a. Kitsap Transit shall be entitled to a pro-rata share thereof determined by
multiplying the Total Parking Spaces by a fraction whose numerator is the
MEMORANDUM OF UNDERSTANDING - 14
(Final 3-6-02)
total KT Base Share and KT Supplemental Share (as those terms are
defined in Section 2.13.1 (c) and (d)) and whose denominator is the total
Shared Joint Project Expenses as defined and calculated under Section
2.12. These spaces shall be referred to as the "Kitsap Transit Dedicated
Parking Spaces" and shall be located within the "Enetai Garage".
b. The City shall be entitled to all remaining parking spaces developed within
the Joint Parking Facilities. These spaces shall be referred to as the City's
Dedicated Parking Spaces.
c. In the event the Kitsap Transit Dedicated Parking Spaces exceed 125
spaces ("Excess Spaces"), Kitsep Transit will convey or lease all such
Excess Spaces requested by the City to the City, subject to fair
compensation therefore.
2.14.2 Enetai Site And CRB Site. Fee title to the underlying land beneath the Enetal Site
and CRB Site shall be determined and negotiated during the Preliminary Phase. In
all events a party shall own any property interests required to comply with such
party's funding requirements.
2.14.3 HOV Garage And Enetai G-arane. It is generally contemplated Kitsap Transit will
retain exclusive control and/or ownership of the HOV Garage. It is generally
contemplated that control and ownership of the Enetal Garage will be determined
during the Preliminary Phase. In all events, ownership and control shall (i) comply
with applicable requirements of the FTA; (ii) be subject to each party's rights and
interests to the Dedicated Parking Spaces, allocated to such Party; and (iii) the
Parking Facilities Maintenance Agreement.
2.14.4 CRB And Enetpi Plllza B~filqling Ak Rights. It is generally contemplated that the
ak rights above the CRB Pad and Enetai Plaza Building parcel may be retained by
Kitsap Transit or conveyed or leased to the City as negotiated during the Prehmi-
nary Phase subject to (i) any Restrictive Covenants required pursuant to the terms
of Section 2.11.6; and (ii) the Kitsap Transit Office Space lease as may hereafter
be negotiated by Kitsap Transit and the Developer. The City shall retain the sole
right to determine the ownership of the air rights over City Parcels 3 and 4.
2.14.5 Title to and ownership of the Hotel and restaurant shall vest in the Developer.
2.14.6 Title to the residential units will vest in the Developer, City, Housing Authority
and/or other entities as determined during the Preliminary Phase.
2.14.7 Title to City Parcel 2 shall vest in the City or Developer as may be negotiated
MEMORANDUM OF UNDERSTANDING - 15
(Final 3-6-02)
between the City and Developer, subject to the Cross Easements, the Utility
Easement and/or the HOV Access, if required, as more fully addressed in the HOV
Access Addendum.
2.15 Comnensation For Pronertv Transfers. During the Preliminary Phase, the intended
ownership of the project properties shall be fully determined and the parties shall negotiate
a method of determining appropriate compensation due either party for such party's
conveyance of property interests nece~u'y to perfect such ownership. Such compensation
and valuations shall conform with all applicable Federal, State and local laws.
2.16 Maintenance Of Pftrking F~'tlities And Reserved Rights To Dedicated Parking S~aces.
During the Preliminary Phase, the parties shall negotiate a Parking Facilities Maintenance
Agreement that will (i) allocate the parking spaces not retained by Kitsap Transit for
transit-related uses as between the Port of Bremerton, the City, the Developer and other
intended tenants, owners and occupants of the Joint Project improvements; (ii) restrict or
limit the use of the Joint Parkin8 Facilities for ferry commuter parking; (iii) allocate
operation, maintenance and insurance responsibilities for the Joint Parking Facilities; and
(iv) establish parking fare rates for any designated "paid" parking spaces that may be
allocated within the Joint Parking Facilities.
2.17 Kitsap Transit's Right To Proceed Indenendentl¥. In the event (i) the City fails to obtain
PFD funding; (ii) the FTA refuses to provide any required concurrence for the conduct of
the Joint Project; (iii) this Agreement is terminated prior to the commencement of the
construction of the Enetai Garage for any reason; or (iv) the parties fall to approve the
Final Development Plan or conclude the Joint Project Inteflocal Agreement to enable
either party to meet its Project time lines, Kitsap Transit shall be entitled to proceed, on its
own, with the Phase D BTC Project subject to the following provisions:
a. The City shall grant Kitsap Transit a perpetual easement, license and the
development rights under City Parcels 3 and 4 to enable Kitsap Transit (and its
contractors) to construct and maintain the Enetal Garage on the Enetai Site (built
under the Washington Avenue grade), together with temporary construction
easements on any abutting City Property as may be reasonably required for ingress,
egress and staging areas to enable Kitsap Transit (and its contractors) to construct
the Enetai Garage (including demolition, excavation and remediation).
b. The City shall retain fee title to City Parcels 3 and 4 and the air rights above those
portions of the Enetal Garage sited on City Parcels 3 and 4 (subject to Kitsap
Transit's easement, license and development rights described in subparagraph (a)
above).
c. The City shall have the option of purchasing a portion of the completed parking
MEMORANDUM OF UNDERSTANDING - 16
(Final 3-6-02)
spaces ("City's Designated Parking Spaces") in the Enetai Garage determined by
multiplying the total number of spaces by a fraction whose numerator is the
number of square feet of City Parcels 3 and 4 devoted to the Enetai Garage and
whose denominator is the total square footage of the Enetal Site.
d. Kitsap Transit shall retain its interest in the Utility Easement. The City will
coordinate any future development of Second Avenue in a manner that preserves
reasonable ingress and egress to (i) the Enetai Garage and (ii) the HOV Garage, as
more fully addressed in the HOV Access Addendum.
e. Kitsap Transit shall be solely responsible for all costs of completing the Enetal
Garage on the Enetal Site, including the responsibility to remediate the
contamination under City Parcel 4 and obtain any necessary permits.
f. City Parcel 1 shall be conveyed to Kitsap Transit outfight.
g. Kitsap Transit will retain all air fights over the CRB Pad and the Enetai Plaza
Building site. Kitsap Transit shall retain exclusive ownership of the HOV Garage.
h. Subject to the City's right to pumhase the pro-rata Parking Spaces allocated to the
City, Kitsap Transit shall he deemed the owner of the Enetai Garage and/or the
controlling agency as required by applicable FTA rules.
i. Land values for City Parcel 1 and the easement, license and development fights as
to City Parcel 3 shall be valued by independent MAI appraisal. Because of Kitsap
Transit's agreement to remediate City Parcel 4, the easement, license and
development fights as to City Parcel 4 shall be assigned no value. The appraisals
shall include a review appraisal in accordance with FTA/FI-IA requirements.
Kitsap Transit shall pay the City the appraised value of such interests.
j. If the City elects to purchase the City's Designated Parking Spaces, the City shall
pay Kitsap Transit a pro-rata share of the hard construction costs of the Enetai
Garage (excluding land acquisition, relocation and remediation) based on the
number of parking stalls allocated to the City, pursuant to subparagraph (c) above.
k. If, after offsetting funds that may be due each other, the City has a net obligation
to Kitsap Transit, the City may defer its payment of the City's Designated Parking
Spaces it elects to purchase until it actually commences use of the City's
Designated Parking Spaces and until such payment is made, Kitsap Transit shall be
entitled to the exclusive use, control and management of all such Parking Spaces.
1. IfKitsap Transit should so proceed independently, and if permitted and reasonably
MEMORANDUM OF UNDERSTANDING - 17
(Final 3-6-02)
feasible, all construction, finanein8 and procurement documents shall be worded so
as to allow the use of the contractors by the City and/or the Kitsap County
Consolidated Housing Authority in connection with any proposed development of
abutting or adjacent properties to the north and/or east of the Enetai Site by the
City and/or Housing Authority. Additionally, the City will provide Kitsap Transit
with copies of any and all Joint Project documents generated pursuant to this
Agreement so as to allow integration ofKitsap Transit's construction on the
Enetai Site with any intended construction on abutting or adjacent properties by
the City, the Housing Authority or their respective Developers.
2.18 Bindin~ Effect. The parties agree that should any disputes arise from the provisions of
Sections 2.17 and the HOV Access Addendum which the parties cannot resolve through
good faith negotiations, the parties agree not to interpose a defense of unenforceability.
CARY BOZEMAN,"IVlayor
KITSAP TRANSIT
RICHARD HAYES, Exec iv~irector
MEMORANDUM OF UNDERSTANDING - 18
(Final 3-6-02)