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12/20/2022 - Regular - Packet
Mayor: Rob Putaansuu Administrative Official Councilmembers: Mark Trenary E/D & Tourism Committee, Chair Utilities/Sewer Advisory Committee Transportation Committee KRCC-alt Shawn Cucciardi Finance Committee E/D & Tourism Committee Lodging Tax, Chair Fred Chang Economic Development & Tourism Committee Land Use Committee Transportation Committee Jay Rosa pepe Finance Committee, Land Use Committee KRCC, PSRC-alt, PSRCTranspol-alt, KRCCTransF alt, KRCC Planpol-alt, John Clauson Finance Committee, Chair Utilities/Sewer Advisory Committee Kitsap Public Health District-alt Cindy Lucarelli (Mayor Pro-Tempore) Festival of Chimes & Lights Committee, Chair Utilities/Sewer Advisory Committee, Chair Kitsap Economic Development Alliance Scott Diener Land Use Committee, Chair Transportation Committee Department Directors: Nicholas Bond, AICP Development Director Tony Lang Public Works Director Tim Drury Municipal Court Judge Noah Crocker, M.B.A. Finance Director Matt Brown Police Chief Brandy Wallace, MIMIC, CPRO City Clerk Meeting Location: Council Chambers, V Floor 216 Prospect Street Port Orchard, WA 98366 Contact us: (360) 876-4407 cityhall@portorchardwa.gov City of Port Orchard Council Meeting Agenda December 20, 2022 6:30 p.m. Pursuant to the Open Public Meetings Act, the City Council is conducting its public meeting in the Council Chambers at City Hall. Members of the public may view and provide public comment during the meeting in person at City Hall, via the online platform zoom (link below), or via telephone (number below). The public may also view the meeting live on the City's YouTube channel. Remote access Link: https://us02web.zoom.us/m/86484673441 Zoom Webinar ID: 864 8467 3441 Zoom Call -In: 1 253 215 8782 Guiding Principles • Are we raising the bar? • Are we honoring the past, but not living in the past? • Are we building connections with outside partners? • Is the decision -making process positively impacting diversity, equity, and inclusion? 1. CALL TO ORDER A. Pledge of Allegiance 2. APPROVAL OF AGENDA 3. CITIZENS COMMENTS (Please limit your comments to 3 minutes for items listed on the Agenda and that are not for a Public Hearing. Please keep your comments respectful and no personal attacks. This is a comment period and not a question -and -answer session. When recognized by the Mayor, please state your name for the official record. If you are attending remotely via telephone, enter *9 from your keypad to raise your hand. 4. CONSENT AGENDA (Approval of Consent Agenda passes all routine items listed below, which have been distributed to each Councilmember for reading and study. Consent Agenda items are not considered separately unless a Councilmember so requests. In the event of such a request, the item is returned to Business Items.) A. Approval of Vouchers and Electronic Payments B. Approval of Payroll and Direct Deposits C. Adoption of a Resolution Accepting Funding from the State of Washington to Off -Set Costs Generated by 2021/2022 Law Enforcement and Criminal Justice Legislation (M. Brown) Page 4 D. Adoption of an Ordinance Amending POMC Chapter 10.12 Establishing Regulations and Fees Related to Parking, Stopping, or Standing in Certain Areas of the City (Lang) Page 7 5. PRESENTATION 6. PUBLIC HEARING 7. BUSINESS ITEMS A. Adoption of an Ordinance Authorizing the Position of Code Enforcement Officer I, Establishing General Duties and Qualifications and Setting Salary Ranges (Lund) Page 52 B. Adoption of a Resolution Adopting Policies for Washington Paid Family and Medical Leave and Volunteer Emergency Services Leave (Lund) Page 57 C. Adoption of a Resolution Confirming the Mayoral Committee, Boards, and Commissions Appointments (Wallace) Page 65 D. Adoption of a Resolution Adopting the 2023 City Council Meeting Schedule (Wallace) Page 68 E. Adoption of a Resolution Approving a Memorandum of Understanding with Port of Bremerton for the Marina Pump Station (Lang) Page 70 F. Adoption of a Resolution Approvine a Contract with All Around Fence Companv for the Bav Street Pedestrian Pathway Repairs (Lang) Page 130 G. Approval of a Commercial Lease Agreement with Hillstrom Holdings for Commercial Office Space of 600 Kitsap Street Units 101 and 201 (Archer) Page 184 H. Approval of Amendment No. 1 to Contract No. 015-20 with Inslee, Best, Doezie & Ryder, PS for Legal Services (Wallace) Page 235 I. Approval of Amendment No. 7 to Contract No. 054-18 with RH2 Engineering, Inc. for the Marina Pump Station Rebuild Project (Lang) Page 248 J. Adoption of a Resolution Authorizing the Re -appointment of Tim Drury as the City's Abatement Hearing Officer (Archer) Page 262 8. DISCUSSION ITEMS (No Action to be Taken) 9. REPORTS OF COUNCIL COMMITTEES 10. REPORT OF MAYOR 11. REPORT OF DEPARTMENT HEADS 12. CITIZEN COMMENTS (Please limit your comments to 3 minutes for any items not up for Public Hearing. When recognized by the Mayor, please state your name for the official record. If you are attending remotely via telephone, enter *9 from your keypad to raise your hand.) 13. EXECUTIVE SESSION: Pursuant to RCW 42.30.110, the City Council WILL hold an executive session. The topic(s) and the session duration will be announced prior to the executive session. 14. CITY COUNCIL GOOD OF THE ORDER 15. ADJOURNMENT COMMITTEE MEETINGS Economic Development and Tourism /11111 11v vvvv 11 , Utilities Finance Date & Time TBD TBD January 17, 2023; 5:00pm Location Remote Access Remote Access Remote Access Please turn off cell phones during meeting and hold your questions for staff until the meeting has been adjourned. The Council may consider other ordinances and matters not listed on the Agenda, unless specific notification period is required. Meeting materials are available on the City's website at: www.portorchardWg.gov or by contacting the City Clerk's office at (360) 876-4407. December 20, 2022, Meeting Agenda Page 2 of 3 Transportation Festival of Chimes & Lights Land Use Lodging Tax Advisory Sewer Advisory Outside Agency Committees January 24, 2023; 4:30pm; 4th Tuesday of each month January 23, 2023; 3:30pm TBD February, 2023 March 22, 2023; S:OOPM Varies Remote Access Remote Access Remote Access City Hall and Remote Access City Hall Varies Please turn off cell phones during meeting and hold your questions for staff until the meeting has been adjourned. The Council may consider other ordinances and matters not listed on the Agenda, unless specific notification period is required. Meeting materials are available on the City's website at: www.portorchardWg.gov or by contacting the City Clerk's office at (360) 876-4407. December 20, 2022, Meeting Agenda Page 3 of 3 Back to Agenda City of Port Orchard 216 Prospect Street Port Orchard WA 98366 n oINYI _A�_ (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Consent Agenda 4C Subject: Adoption of a Resolution Accepting Funding from the State of Washington to Off -Set Costs Generated by 2021/2022 Law Enforcement and Criminal -Justice Legislation Meeting Date: December 20, 2022 Prepared by: Matt Brown Chief of Police Atty Routing No.: 366922-0012 — Police Atty Review Date: December 5, 2022 Summary: The State Legislature, in the 2021 session, passed the 2021-2023 fiscal biennium operating appropriation via Engrossed Substitute Senate Bill (ESSB) 5092. Included in ESSB was an allocation of funding to Washington's cities to offset training costs generated by certain law enforcement and criminal -justice related legislation enacted during the 2021 and 2022 legislative sessions. The City of Port Orchard anticipates receiving funds through this appropriation from the State of Washington totaling $16,394.84. The City of Port Orchard Police Department has been evaluating potential uses of these funds which are consisted with the legislative intent. At this time the Police Department has provided the following list of unfunded mandates for which the police department intends on using some of the funding. Please note this is not an exhausted list of all legislation enacted during the 2021 and 2022 legislative sessions. Additional proposals may be coming forward in the future. HB 1310 — Use of Force (Chapter 324, Laws of 2021) SB 5066 — Duty to Intervene (Chapter 321, Laws of 2021) HB 1735 — Use of Force (Chapter 4, Laws of 2022) HB 2037 — Use of Force (Chapter 80, Laws of 2022) Under RCW 35A.11.040, the legislative body of a code city shall have power to accept any gift or grant for any public purpose and may carry out any conditions of such gift or grant when not in conflict with state or federal law. Furthermore, the city maintains a practice of accepting grants by ordinance or resolution. Recommendation: Staff recommends the City Council adopt a Resolution, accepting of the funding provided by the Washington State legislature to offset training costs generated by certain law enforcement and criminal -justice legislation during the 2021 and 2022 legislative sessions. Relationship to Comprehensive Plan: N/A. Motion for consideration: I move to adopt a Resolution accepting funding provided by the state to offset the City's training costs generated by state law enforcement and criminal -justice legislation. Fiscal Impact: $16,394.84 Alternatives: Not authorize the Resolution and provide further guidance. Attachments: Resolution. Page 4 of 263 Back to Agenda RESOLUTION NO. A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, ACCEPTING THE FUNDING PROVIDED BY STATE OF WASHINGTON TO OFFSET TRAINING COSTS GENERATED BY CERTAIN LAW ENFORCEMENT & CRIMINAL -JUSTICE LEGISLATION ENACTED DURING THE 2021 AND 2022 LEGISLATIVE SESSIONS, AND ACCEPTING THE TERMS AND CONDITIONS REQUIRED ASSOCIATED THEREWITH. WHEREAS, on April 25, 2021, the Washington State legislature approved Engrossed Substitute Senate Bill (ESSB) 5092, 671" Legislature 2021 regular session; and WHEREAS, ESSB 5092, Section, 739 provided $20 million in city assistance funds allocated during the state 2021-2023 operating budget; and WHEREAS, the appropriation through ESSB 5092 was subject to the condition that the funding was to be distributed to cities according to population to assist with one-time costs related to law enforcement and criminal -justice related legislation enacted between January 1, 2020, and June 30, 2021; and WHEREAS, the City of Port Orchard estimates that its allocation of this appropriation from the state is $16,394.84; and WHEREAS, the City is aware of the funding source and has identified eligible uses for the City, consistent with the conditions and limitations set out in ESSB 5092; and WHEREAS, under RCW 35A.11.040, the City shall accept grants by resolution; and WHEREAS, the City Council finds it in the City's interest to accept these funds; and WHEREAS, Staff will prepare a budget amendment to allocate these funds, consistent with the conditions and limitations set out in ESSB 5092; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The City Council recognizes, supports, and ratifies the acceptance of the funding provided to the City, appropriated through ESSB 5092. THAT: Staff shall prepare a budget amendment at a later date for any and all eligible projects identified and submit same for Council approval. Page 5 of 263 Back to Agenda Resolution No. Page 2 of 2 PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage this 20' day of December 2022. Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 6 of 263 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Consent Agenda 4D Subject: Adoption of an Ordinance Amending POMC Chapter 10.12 Establishing Regulations and Fees Related to Parking, Stopping or Standing In Certain Areas of the Citv Back to Agenda Meeting Date: December 20, 2022 Prepared by: Tony Lang Public Works Director Atty Routing No: 366922-0009 — PW Atty Review Date: December 13, 2022 Summary: The City has codified regulations for parking at Port Orchard Municipal Code (POMC) Chapter 10.12. As a continued housekeeping measure, working in conjunction with the City's Parking Enforcement staff, the City's Public Works Department inventories existing parking signage on a continual basis and has compiled corrections, revisions, and modifications to current POMC Chapter 10.12 at Sections 10.12.050, 10.12.460, 10.12.490, and 10.12.500, to reflect existing needs and conditions for parking within the City and to make grammatical and typographical corrections to these sections. By this Ordinance, the Council would adopt the recommended amendments (see attached redline of Ordinance 049-22 to assist with review.) Relationship to Comprehensive Plan: None Recommendation: Staff recommends adoption of Ordinance No. 049-22, amending POMC Chapter 10.12 Sections 10.12.050, 10.12.460, 10.12.490, and 10.12.500 regarding Parking, Stopping or Standing in Certain Areas of the City. Motion for Consideration: I move to adopt Ordinance No. 049-22, amending POMC Sections 10.12.050, 10.12.460, 10.12.490, and 10.12.500, regarding Parking, Stopping or Standing in the City. Fiscal Impact: None Alternatives: Do not approve and provide further direction to staff Attachments: Ordinance Amending POMC 10.12.050, 10.12.460, 10.12.490, 10.12.500 (Clean, for adoption) Ordinance Amending POMC 10.12.050, 10.12.460, 10.12.490, 10.12.500 (Redline to assist with review) Page 7 of 263 Back to Agenda Ordinance No. 049-22 —Tracked POMC Chapter 10.12 10.12.050 Parking prohibited and restricted. (1) The city council may from time to time establish parking prohibitions and restrictions on city -owned or city -operated parking lots and portions of certain specified streets, including establishment of reserved parking areas and residential permit parking zones which restrict parking of vehicles on certain streets or city parking lots at certain times except by permit. These regulations are codified in POMC 10.12.460-599 through 10.12.5306-2-9. (2) Failure to comply with a parking restriction or prohibition adopted by the city council and filed with the city clerk shall be cited under this section and shall constitute a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). 10.12.460 Parking prohibited at all times. (1) When signs or markings are installed giving notice thereof, no person shall park a vehicle at any time upon any of the streets or parts of streets described as follows: 1. Advantage on the west side of the Avenue: north 350 feet of roadway and on the left-hand side, as the traffic flows, of the remainder of the street. 2. Amherst Way on both sides of the SW: street. 32. Andasio Loop on the outside curb along SE: the entire loop. t. 4. Arnold along the west side of Avenue E: Arnold Avenue E., from the Lawrence Street intersection, to the northeast towards Bay St., 100 feet. 5. Arnold along the east side of Avenue E: Arnold Avenue E., from the Bay Street intersection, to the south 66 feet. 6. Bay Street: at the intersection with Page 8 of 263 Back to Agenda Ordinance No. 049-22 Page 2 of 22 Wharf Street (Mitchell Point), along the outside radius of the existing road as delineated by the established guardrail. 7. Bay Street: on the south side from Tracy Avenue, westerly for a distance of 200 feet. 8. Bay Street: on the north side, from the DeKalb Street pedestrian pier westerly for 70 feet and in front of 501 Bay Street. 9. Bay Street: at the southwest corner of the intersection with Arnold Avenue E., from the point of curvature to the point of tangency of the curve radius. 10. Bay Street: on the south side from Dekalb Street, 130 feet to the east. 11. Becky on both sides of street, Avenue: from Dallas Street south to dead end. 12. Bethel on the west side from the Avenue: driveway at 1130 Bethel Avenue, 245 feet north. 13. Bittern Ln: on both sides of the street from McCormick Village Dr. to Wandering Way. 14. Bristol Ln on the east side of the SE: street. 153. Castleton on both sides of the Road SW: street. 164. Cedar on both sides of the street Canyon: within 100 feet of the Tremont Street right-of- way. 17-. Chanting on both sides of street, Page 9 of 263 Back to Agenda Ordinance No. 049-22 Page 3 of 22 Circle SW: from Old Clifton Road 260 feet. Then on the east side to Chanting Circle. Then along the inside curb of the remaining part of Chanting Circle. 186. Chatterton on the west side of street. Avenue SW: 19-7. Chowchilla on the south side of Way: street. 20. SW Colbert on left-hand side of street Way. as the traffic flows, from Pickford Place SW to Chatterton Avenue SW. 214-9. Currant on the west side of the Lane SW: street. 224-9. Dallas on the right-hand side, as Street: the traffic flows. 239. DeKalb on south side from Cline Street: Avenue easterly to dead end. 24-1. DeKalb on the south side, from Street: Sidney Avenue westerly for a distance of 100 feet. 252-. DeKalb on the north side, from Street: Tracy Avenue easterly to the end of DeKalb Street. 26-. DeKalb on the south side, from Street: Mitchell Avenue to the east side of Tracy Avenue. 274. Donna on the south side of Street: street. 28-5. Donnegal on both sides of the Circle SW: street. 296. Egret on the south side of the Street: street. 30. Explorer Ave: on the inside radius of the street. 31. Fantail Place: on the east side of the Page 10 of 263 Back to Agenda Ordinance No. 049-22 Page 4 of 22 street. 32. Farragut on both sides, from Avenue: DeKalb Street to Morton Street; except, on the east side, 160 feet north of r%—I/..11_ ca......a 33. SW Fielder on the west side includin Place: the cul-de-sac. 342-7. Fiscal on the south side of the Street: street. stFeet. 29 FaFrag A r,., hr,+h sardlPes, fr.,m StFeet;except, en the ea s Te, 1V TfeeC"l"1or h e 359. Forest Park on both sides of the Street: street. 36-1. Glenmore on the inside radius of the Loop: entire loop. 37-2. Glenwood on the north side, from Road SW: Sidney Road 350 feet west. 38-. Grebe Way: on the north side, from Siskin Circle to Swift Avenue. 394. Guy Wetzel on both sides from Bay Street: Street to Perry Avenue. 403-5. Hales on both sides of the Court SW: street. 4136. Hibiscus on the outside radius of Circle SW: the entire circle. 42--Z7. on both sides from Olney Huntington Avenue to Glenmore Loop Street: and the north side from Glenmore Loop to west end terminus. 43-38. Jabirin on the north side of Page 11 of 263 Back to Agenda Way: street. 443-9. Keppel on both sides of the Loop SW: street. 4548. Koda along fire lanes where Circle: marked/posted. 46. Ladd Ct SW: on both sides of the street. 47-1. Landis Ct. on the northeast side. SW: 482. Lazuli Street: 49-3. Limerick Drive SW: 5044. Lippert Drive: 514-5. Lloyd Parkway: 52. Lone Bear Drive: 53. Longview Avenue: 5446. Lowren Street: 5547. Lumsden Road: nQ i„ B -,F 494engv Avenue- 569. Mitchell Avenue: on the south side, from Wigeon Avenue to Siskin Circle. on both sides of the street. on both sides, from Pottery Avenue to Advantage Street. on both sides from SW Old Clifton Road to Lumsden Road. on both sides from Feigley Road to 100 feet west of Chatterton Avenue SW. on east side of street. on the right-hand side, as the traffic flows on the one-way portion of the street. on both sides of the street. ChatteFteit'Avenue S . an east side r)f street on both sides, from Bay Street to Kitsap Street. Ordinance No. 049-22 Page 5 of 22 Page 12 of 263 Back to Agenda Ordinance No. 049-22 Page 6 of 22 57-1. Murrelet on both sides, from Old Avenue: Clifton Road to Siskin Circle. 58. SE on the outside curb of the Nordmann Loop: entire loop. 59. SW Old on both sides from Clifton Road: Chanting Circle SW to Campus Parkway. 60-52. Olivine on both sides of the Drive SW: street. 61. SW on the south side of the Pendleton Way: street. 6255. Pickford on the left-hand side as Place SW: the traffic flows on the street, from SW Colbert Way to end of cul-de-sac. 6354. Plisko on both sides, from Avenue: Mitchell Avenue to Mile Hill Drive. 64. Pottery on both sides of the Avenue: street, within 100 feet of the Tremont Street right- of-way. 6555. Prospect on the inside radius of the Street: curve between Robert Geiger Street and 56 Petter-y r-cv-cn twee -cr� e: Frederick Avenue. r,., h.,+h r*.dr,r A-f+he c+re�e t, within 1-00 feet of 6657. Retsil the Tr,,.,.ept St Fe ,+ r gh+_ ef way. on the west side, from the Road: north corporate limits to the south property line of 982 Retsil Road. 675-8. Robert other than official city Geiger Street: vehicles, parking is prohibited at all times along the south side, from Bay Street to Prospect Page 13 of 263 Back to Agenda Ordinance No. 049-22 Page 7 of 22 Street. 68-59. Rockwell on both sides, from Bay Avenue: Street to Kitsap Street. 699. Ross Street: on the south side of the 400 block. 7064. Sage on both sides of street. Court: 716-2. Sage on both sides from Street: Pottery Avenue east for a distance of 70 feet and on the left-hand side, as the traffic flows, on the remainder of the street. 7263. Seattle on the east side, from Bay Avenue: Street southerly for a distance of 82 feet. 73. SW Sedge St: On the north side of the street including the cul- de-sac. 7464. Sherman on the east side of the Avenue: 1200-1300 block from the dead end 980 feet north. 7565. Sidney on the west side from Bay Avenue: Street to Prospect Street. 7666. Siskin on the inside curb of Circle: Siskin Circle throughout the circle. 776-7. Snowridge on the left-hand side, as Avenue: the traffic flows on the street. 7869. Sprague on the right-hand side, as Street: the traffic flows on the one-way portion of the street. 796-9. Sroufe on the south side, from Street: Sidney Avenue to Portland Avenue. 80. SW Stanwick on the right-hand side of Way: street as the traffic flows, Page 14 of 263 Back to Agenda Ordinance No. 049-22 Page 8 of 22 from Lone Bear Drive to Pickford Place SW. 817-9. on outside of circle Strathmore traveling either direction. Circle SW: 82-74. Sweany on the north side, from Street: Cline Avenue westerly for a distance of 340 feet. 8374. Sweany on the south side, from Street: Sidney Avenue westerly for a distance of 200 feet. 847-3. Swift on west side, from Siskin Avenue: Circle to Lazuli Street. 7-4 SW Celb.,r+ T on left hand side of street s the tFa4*.- flews frenz Piel eFd Place SW tee Etaatterten Avenue SW. 85-77. Tremont on both sides of street Place: from 233 Tremont Place driveway to end of road guardrail. 867-9. Tremont on both sides of the Street: street, within 100 feet of Pottery Avenue right-of- way. 877-9. Vardon on both sides of the Circle SW: street. 889. Viridian on both sides of the Avenue SW: street. 89. Wandering on the outside radius of Way: the street. 9094. Warbler on both sides of street Page 15 of 263 Back to Agenda Ordinance No. 049-22 Page 9 of 22 Way: from Old Clifton Road to Siskin Circle. 918-2. Warbler from Siskin Circle to curve Way: (park) on south side and on east side from curve (park) to Grebe Way. 92. Waverly Rd on the west side of the SW: street. 938-3. Wilkins on both sides, from the Drive: west terminus, eastward 350 feet. 9484. Lot 4: all of Lot 4, as defined in POMC 10.12.500, Saturdays from 5:00 a.m. to 5:00 p.m., from April 1st through October 31st. (2) Violation of this section is a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). 10.12.490 Parking time limited on certain streets. (1) When signs are erected by the city engineer in each block giving notice thereof, no person shall park a vehicle for longer than the time specified in this section, on the days specified in this section, upon any of the streets described as follows except vehicles complying with the residential parking permit program: 1. Ada Street: on both sides of Ada Street, from Sidney Avenue to Harrison Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 2. Arnold on the west side of Arnold Avenue E: Avenue E., south of Bay Street. There will be two- hour parking from 8:00 Page 16 of 263 Back to Agenda Ordinance No. 049-22 Page 10 of 22 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 3. Austin on both sides, from Avenue: Division Street to Dwight Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 4. Bay Street: on both sides, from Orchard Avenue to Harrison Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. Vehicles with residential parking permits are not exempt from the parking restrictions specified within this subsection. 5. Bay Street: on the north side from the DeKalb Street pedestrian pier easterly for 110 feet. There will be 15-minute loading and unloading only. 6. Bay Street: on the south side from Port Orchard Boulevard to DeKalb Street and 130 feet east of DeKalb Street to Kitsap Street there will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday and federal holidays. 7. Bay Street: on west side of the 1500 Page 17 of 263 Back to Agenda Ordinance No. 049-22 Page 11 of 22 and 1600 block. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 8. Bay Street: on the north side at Ross Point (SR 166). There will be four-hour parking. 9. Bay Street: on the south side of Bay Street, west of Arnold Avenue E. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day, except Saturday, Sunday, and federal holidays. 10. Bravo on the east side from the Terrace: Bravo Terrace intersection south to end of cul-de-sac. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 11. Cline on both sides, from Kitsap Avenue: Street to Dwight Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 12. Cline from the northeast corner Avenue: of Kitsap Street and Cline Avenue northerly along the east line of Cline Avenue to Bay Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, Page 18 of 263 Back to Agenda Ordinance No. 049-22 Page 12 of 22 and federal holidays. 13. Cline on both sides, from Taylor Avenue: Street to Division Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 14. DeKalb on both sides, from Street: Seattle Avenue to Sidney Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays; except for a space on the south side of DeKalb Street beginning 105 feet east of Harrison Avenue and continuing easterly for 175 feet. The 175 feet as described shall be designated all day parking. 15. DeKalb on the north side, from Street: Sidney Avenue westerly for a distance of 120 feet. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 16. DeKalb on the south side, from Street: Tracy Avenue easterly to the end of DeKalb Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 17. DeKalb on both sides, from Street: Mitchell Avenue westerly Page 19 of 263 Back to Agenda Ordinance No. 049-22 Page 13 of 22 for a distance of 340 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 18. DeKalb on the north side, from Street: Mitchell Avenue to Tracy Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 19. Division on both sides, from Street: Sidney Avenue to Seattle Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 20. Division on both sides, from Cline Street: Avenue to Sidney Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 21. Division on both sides from Cline Street: Avenue westerly to dead end. There will be four- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday and federal holidays. 22. Dwight on both sides, from Street: Sidney Avenue to Seattle Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on Page 20 of 263 Back to Agenda Ordinance No. 049-22 Page 14 of 22 any day except Saturday, Sunday, and federal holidays. 23. Dwight on both sides, from Street: Mitchell Avenue westerly for a distance of 250 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 24. Dwight on both sides, from Austin Street: Avenue to Cline Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 25. Farragut on the east side, 160 feet Avenue: north of DeKalb Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 26. Frederick on both sides, from Avenue: waterfront parking lot to Prospect Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 27. Harrison on both sides, from Avenue: DeKalb Street to Dwight Street. There will be four- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. Page 21 of 263 Back to Agenda Ordinance No. 049-22 Page 15 of 22 28. Harrison on both sides, from Avenue: Dwight Street to Division Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 29. Harrison on both sides from Ada Avenue: Street to dead end. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 30. Kitsap Street: on both sides, from Cline Avenue to Rockwell Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 31. Kitsap Street: on both sides, from Mitchell Avenue westerly for a distance of 150 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 32. Mitchell on the east side, from Avenue: DeKalb Street northerly for a distance of 70 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 33. Mitchell on the west side, from Avenue: Kitsap Street to Taylor Street. There will be two - Page 22 of 263 Back to Agenda Ordinance No. 049-22 Page 16 of 22 hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 34. Mitchell on the east side, from Avenue: DeKalb Street southerly to the bus loading access road, shall be designated all day parking except for the revetment area which is two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 35. Morton on both sides, from Street: Rockwell Avenue westerly for a distance of 230 feet on both sides. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 36. Morton on both sides, from Street: Rockwell Avenue easterly for a distance of 230 feet on both sides. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 37. Prospect on both sides, from Street: Sidney Avenue to Robert Geiger Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m. (except where posted as one -hour parking for the City Permit Center located Page 23 of 263 Back to Agenda Ordinance No. 049-22 Page 17 of 22 at 720 Prospect Street; holders of residential parking permits are not exempt from this restriction), on any day except Saturday, Sunday, and federal holidays, and the inside radius of the curve between Robert Geiger Street and Frederick Avenue. 38. Prospect on both sides, from Kitsap Street: Street to Robert Geiger Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays, except where 30-minute zone is delineated. 39. Prospect along the green curb, in Street: front of City Hall at 216 Prospect Street. There is 30-minute parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 40. Robert on the north side, from Geiger Street: Prospect Street to Bay Street. There will be four- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 41. Seattle on both sides, from Kitsap Avenue: Street to Dwight Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day Page 24 of 263 Back to Agenda Ordinance No. 049-22 Page 18 of 22 except Saturday, Sunday, and federal holidays. 42. Seattle on both sides from Avenue: Dwight Street to Division Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 43. Sidney on both sides from Bay Avenue: Street to the waterfront. There will be two-hour parking from 8:00 a.m. tc 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 44. Sidney on the east side from Bay Avenue: Street to Prospect Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 45. Sidney on both sides, from Avenue: Prospect to Kitsap Street. There will be four-hour parking from 8:00 a.m. tc 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 46. Sidney on both sides, from Kitsap Avenue: Street to DeKalb Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 47. Sidney on both sides, from Avenue: DeKalb Street to Ada Street. There will be two - Page 25 of 263 Back to Agenda Ordinance No. 049-22 Page 19 of 22 hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 48. Sweany on the south side, from Street: Cline Avenue westerly for a distance of 300 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 49. Sweany on the north side, from Street: Sidney Avenue westerly for a distance of 200 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 50. Tracy on both sides, from Avenue: DeKalb Street to Guy Wetzel Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 51. Tracy abutting 219 Tracy Avenue: Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 52. Water from Bay Street to Street: waterfront on the west side. There will be four- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Page 26 of 263 Back to Agenda 53. SW Yarrow St: Sunday, and federal holidays. on the south side. from Explorer Avenue westerly for a distance of 360 feet and easterly for a distance of 390 feet. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday. Sunday. and federal holidays. Ordinance No. 049-22 Page 20 of 22 (2) Violation of this section is a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). 10.12.500 Parking time limited on certain city parking lots. (1) The city parking lots are identified as follows: (a) Lot 1, which lies between Orchard and Frederick Streets, on the north of Bay Street. Parking in Lot 1 is a combination of city parking and Port Orchard Marina parking. Port Orchard Marina parking is the three northernmost rows and shall be managed by the Port of Bremerton. City parking is limited to four hours maximum and/or monthly merchant parking. (b) Lot 2, which lies between Frederick Street and Sidney Avenue, north of Bay Street. Parking in Lot 2 shall be allowed for a maximum period of four hours, including two car charging stalls limited to four hours maximum, and one motorcycle stall. (c) Lot 3, which is the five rows of parking area under city jurisdiction west of Harrison Avenue and east of and parallel to the library's easternmost exterior wall. Parking in the Page 27 of 263 Back to Agenda Ordinance No. 049-22 Page 21 of 22 three westerly rows of Lot 3 shall be allowed for a maximum period of four hours at no monetary charge. Parking in the easterly two rows is paid parking and shall require a paid daily parking pass as established in POMC 10.12.520. (d) Lot 4, which is all parking area under city jurisdiction which lies east of Parking Lot 3 and Harrison Avenue and west of the Marina Park. Parking in Lot 4 is a combination of free two- hour parking for the park at the most northerly and easterly corner and paid parking and shall require a paid daily parking pass as established in POMC 10.12.520. (e) Lot 5, which is all parking spaces on City Hall property (first floor entry). Parking in Lot 5 shall be for City Hall ADA Parking patrons and official vehicles only. The police chief or his/her designate may authorize deviations to this policy for Lot 5, if necessary. No monetary charge. (f) Lot 6, which is all parking spaces abutting the landscaped area at the southwest corner of the intersection of Bay Street and DeKalb Street (Bayside Plaza). Parking in Lot 6 shall be allowed for a maximum period of two hours. No monetary charge. (g) Lot 7, which is all parking spaces located on the library property. Parking in Lot 7 shall be limited to library staff only. Access to Lot 7 and parallel parking stalls via the adjacent parcel to the south pursuant to easement AF# (8903310122). No monetary charge. (h) Lot 8, which lies east of City Hall, north of and adjacent to Prospect Alley (between Kitsap Street and Prospect Street). Lot 8 is for designated city vehicles and city employees via pass Monday through Friday. No monetary charge. 0) Lot 9, 720 Prospect St, which lies east of Lot 8, north of and adjacent to Prospect Alley (between Kitsap Street and Prospect Street). Lot 9 is for designated vehicles and city employees via pass Monday through Friday. No monetary charge. (il Lot 10, which lies on the east side of McCormick Village Dr. between SW Old Clifton Rd and SW Yarrow St. Parking in Lot 10 shall be allowed for a maximum period of four hours, enforced on a 24-hour basis. (k+) Paul Powers Park, which lies north and east of the public works department "south shed" located at 2051 Sidney Avenue. Paul Powers Park parking is limited to dawn -to -dusk parking only. (j) Van Zee Park, which lies south of Tremont Street and west of Sidney Avenue, located at 300 Tremont Street. Van Zee Park parking is limited to dawn -to -dusk parking only. (M-k) Rockwell Pocket Park will be limited to two-hour parking from dawn to dusk. (2) Parking restrictions in Lots 1, 2, 3, 4, 5, 6, 7, and 99 shall be enforced on a 24-hour basis, except Saturday, Sunday, and federal holidays within the city. Page 28 of 263 Back to Agenda Ordinance No. 049-22 Page 22 of 22 (3) Parking restrictions in Lot 4 shall also be enforced on a 24-hour basis on each Saturday in the period of April 1st to October 31st. (4) Currency through electronic payment in an electronic parking pay station or similar instrument provided near the parking space for each 12-hour interval or part thereof. (5) Violation of this section is a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). Page 29 of 263 Back to Agenda ORDINANCE NO. 049-22 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, RELATING TO PARKING, STANDING, AND STOPPING; AMENDING SECTIONS 10.12.050, 10.12.460, 10.12.490, AND 10.12.500 OF THE PORT ORCHARD MUNICIPAL CODE; PROVIDING FOR SEVERABILITY; ESTABLISHING AN EFFECTIVE DATE. WHEREAS, WAC 308-330-270 authorizes the City to adopt regulations to prohibit, regulate or limit stopping, standing or parking of vehicles in areas of the City; and WHEREAS, in accordance with that authority, the City's regulations for this topic are codified at Port Orchard Municipal Code (POMC) Chapter 10.12, and POMC Section 10.12.050(1) authorizes the City Council to from time to time, establish parking prohibitions and restrictions on portions of certain specified streets, with those prohibitions and restrictions codified at POMC 10.12.460 through 10.12.530; and WHEREAS, the City Council deems it in the best interest of the City of Port Orchard to periodically review and update such regulations; and WHEREAS, the City Council chooses to codify any updates to the parking regulations in order to aid the public in its ability to access and review said regulations; and WHEREAS, staff audited the existing regulations and identified necessary, specific revisions to POMC Section 10.12.050, Parking prohibited and restricted, Section 10.12.460, Parking prohibited at all times, Section 10.12.490, Parking time limited on certain streets, and Section 10.12.500, Parking time limited on certain city parking lots; and WHEREAS, the City Council has reviewed the proposed amendments and believes it to be in the best interests of the City to enact the proposed amendments; now, therefore THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. Section 10.12.050 of the Port Orchard Municipal Code is hereby amended to read as follows: 10.12.050 Parking prohibited and restricted. (1) The city council may from time to time establish parking prohibitions and restrictions on city -owned or city -operated parking lots and portions of certain specified streets, including establishment of reserved parking areas and residential permit parking zones which restrict parking of vehicles on certain streets or city parking lots at certain times except by permit. These regulations are codified in POMC 10.12.460 through 10.12.530. Page 30 of 263 Back to Agenda Ordinance No. 049-22 Page 2 of 22 (2) Failure to comply with a parking restriction or prohibition adopted by the city council and filed with the city clerk shall be cited under this section and shall constitute a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). SECTION 2. Section 10.12.460 of the Port Orchard Municipal Code is hereby amended to read as follows: 10.12.460 Parking prohibited at all times. (1) When signs or markings are installed giving notice thereof, no person shall park a vehicle at any time upon any of the streets or parts of streets described as follows: 1. Advantage on the west side of the Avenue: north 350 feet of roadway and on the left-hand side, as the traffic flows, of the remainder of the street. 2. Amherst Way on both sides of the SW: street. 3. Andasio Loop on the outside curb along SE: the entire loop. 4. Arnold along the west side of Avenue E: Arnold Avenue E., from the Lawrence Street intersection, to the northeast towards Bay St., 100 feet. 5. Arnold along the east side of Avenue E: Arnold Avenue E., from the Bay Street intersection, to the south 66 feet. 6. Bay Street: at the intersection with Wharf Street (Mitchell Point), along the outside radius of the existing road as delineated by the established guardrail. 7. Bay Street: on the south side from Tracy Avenue, westerly for a distance of 200 feet. Page 31 of 263 Back to Agenda Ordinance No. 049-22 Page 3 of 22 8. Bay Street: on the north side, from the DeKalb Street pedestrian pier westerly for 70 feet and in front of 501 Bay Street. 9. Bay Street: at the southwest corner of the intersection with Arnold Avenue E., from the point of curvature to the point of tangency of the curve radius. 10. Bay Street: on the south side from Dekalb Street, 130 feet to the east. 11. Becky on both sides of street, Avenue: from Dallas Street south to dead end. 12. Bethel on the west side from the Avenue: driveway at 1130 Bethel Avenue, 245 feet north. 13. Bittern Ln: on both sides of the street from McCormick Village Dr. to Wandering Way. 14. Bristol Ln on the east side of the SE: street. 15. Castleton on both sides of the Road SW: street. 16. Cedar on both sides of the street Canyon: within 100 feet of the Tremont Street right-of- way. 17. Chanting on both sides of street, Circle SW: from Old Clifton Road 260 feet. Then on the east side to Chanting Circle. Then along the inside curb of the remaining part of Chanting Circle. 18. Chatterton on the west side of street. Avenue SW: Page 32 of 263 Back to Agenda Ordinance No. 049-22 Page 4 of 22 19. Chowchilla on the south side of Way: street. 20. SW Colbert on left-hand side of street Way: as the traffic flows, from Pickford Place SW to Chatterton Avenue SW. 21. Currant Lane on the west side of the SW: street. 22. Dallas Street: on the right-hand side, as the traffic flows. 23. DeKalb on south side from Cline Street: Avenue easterly to dead end. 24. DeKalb on the south side, from Street: Sidney Avenue westerly for a distance of 100 feet. 25. DeKalb on the north side, from Street: Tracy Avenue easterly to the end of DeKalb Street. 26. DeKalb on the south side, from Street: Mitchell Avenue to the east side of Tracy Avenue. 27. Donna on the south side of Street: street. 28. Donnegal on both sides of the Circle SW: street. 29. Egret Street: on the south side of the street. 30. Explorer Ave: on the inside radius of the street. 31. Fantail Place: on the east side of the street. 32. Farragut on both sides, from Avenue: DeKalb Street to Morton Street; except, on the east side, 160 feet north of DeKalb Street. 33. SW Fielder on the west side including Page 33 of 263 Back to Agenda Ordinance No. 049-22 Page 5 of 22 Place: the cul-de-sac. 34. Fiscal Street: on the south side of the street. 35. Forest Park on both sides of the Street: street. 36. Glenmore on the inside radius of the Loop: entire loop. 37. Glenwood on the north side, from Road SW: Sidney Road 350 feet west. 38. Grebe Way: on the north side, from Siskin Circle to Swift Avenue. 39. Guy Wetzel on both sides from Bay Street: Street to Perry Avenue. 40. Hales Court on both sides of the SW: street. 41. Hibiscus on the outside radius of Circle SW: the entire circle. 42. Huntington on both sides from Olney Street: Avenue to Glenmore Loop and the north side from Glenmore Loop to west end terminus. 43. Jabirin Way: on the north side of street. 44. Keppel Loop on both sides of the SW: street. 45. Koda Circle: along fire lanes where marked/posted. 46. Ladd Ct SW: on both sides of the street. 47. Landis Ct. on the northeast side. SW: 48. Lazuli Street: on the south side, from Wigeon Avenue to Siskin Circle. 49. Limerick on both sides of the Page 34 of 263 Back to Agenda Ordinance No. 049-22 Page 6 of 22 Drive SW: street. 50. Lippert on both sides, from Drive: Pottery Avenue to Advantage Street. 51. Lloyd on both sides from SW Parkway: Old Clifton Road to Lumsden Road. 52. Lone Bear on both sides from Feigley Drive: Road to 100 feet west of Chatterton Avenue SW. 53. Longview on east side of street. Avenue: 54. Lowren on the right-hand side, as Street: the traffic flows on the one-way portion of the street. 55. Lumsden on both sides of the Road: street. 56. Mitchell on both sides, from Bay Avenue: Street to Kitsap Street. 57. Murrelet on both sides, from Old Avenue: Clifton Road to Siskin Circle. 58. SE on the outside curb of the Nordmann Loop: entire loop. 59. SW Old on both sides from Clifton Road: Chanting Circle SW to Campus Parkway. 60. Olivine Drive on both sides of the SW: street. 61. SW on the south side of the Pendleton Way: street. 62. Pickford on the left-hand side as Place SW: the traffic flows on the street, from SW Colbert Way to end of cul-de-sac. 63. Plisko on both sides, from Avenue: Mitchell Avenue to Mile Page 35 of 263 Back to Agenda Ordinance No. 049-22 Page 7 of 22 Hill Drive. 64. Pottery on both sides of the Avenue: street, within 100 feet of the Tremont Street right- of-way. 65. Prospect on the inside radius of the Street: curve between Robert Geiger Street and Frederick Avenue. 66. Retsil Road: on the west side, from the north corporate limits to the south property line of 982 Retsil Road. 67. Robert other than official city Geiger Street: vehicles, parking is prohibited at all times along the south side, from Bay Street to Prospect Street. 68. Rockwell on both sides, from Bay Avenue: Street to Kitsap Street. 69. Ross Street: on the south side of the 400 block. 70. Sage Court: on both sides of street. 71. Sage Street: on both sides from Pottery Avenue east for a distance of 70 feet and on the left-hand side, as the traffic flows, on the remainder of the street. 72. Seattle on the east side, from Bay Avenue: Street southerly for a distance of 82 feet. 73. SW Sedge St: On the north side of the street including the cul- de-sac. 74. Sherman on the east side of the Avenue: 1200-1300 block from the dead end 980 feet north. Page 36 of 263 Back to Agenda Ordinance No. 049-22 Page 8 of 22 75. Sidney on the west side from Bay Avenue: Street to Prospect Street. 76. Siskin Circle: on the inside curb of Siskin Circle throughout the circle. 77. Snowridge on the left-hand side, as Avenue: the traffic flows on the street. 78. Sprague on the right-hand side, as Street: the traffic flows on the one-way portion of the street. 79. Sroufe on the south side, from Street: Sidney Avenue to Portland Avenue. 80. SW Stanwick on the right-hand side of Way: street as the traffic flows, from Lone Bear Drive to Pickford Place SW. 81. Strathmore on outside of circle Circle SW: traveling either direction. 82. Sweany on the north side, from Street: Cline Avenue westerly for a distance of 340 feet. 83. Sweany on the south side, from Street: Sidney Avenue westerly for a distance of 200 feet. 84. Swift on west side, from Siskin Avenue: Circle to Lazuli Street. 85. Tremont on both sides of street Place: from 233 Tremont Place driveway to end of road guardrail. 86. Tremont on both sides of the Street: street, within 100 feet of Pottery Avenue right-of- way. 87. Vardon Circle on both sides of the SW: street. Page 37 of 263 Back to Agenda Ordinance No. 049-22 Page 9 of 22 88. Viridian on both sides of the Avenue SW: street. 89. Wandering on the outside radius of Way: the street. 90. Warbler on both sides of street Way: from Old Clifton Road to Siskin Circle. 91. Warbler from Siskin Circle to curve Way: (park) on south side and on east side from curve (park) to Grebe Way. 92. Waverly Rd on the west side of the SW: street. 93. Wilkins on both sides, from the Drive: west terminus, eastward 350 feet. 94. Lot 4: all of Lot 4, as defined in POMC 10.12.500, Saturdays from 5:00 a.m. to 5:00 p.m., from April 1st through October 31st. (2) Violation of this section is a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). SECTION 3. Section 10.12.490 of the Port Orchard Municipal Code is hereby amended to read as follows: 10.12.490 Parking time limited on certain streets. (1) When signs are erected by the city engineer in each block giving notice thereof, no person shall park a vehicle for longer than the time specified in this section, on the days specified in this section, upon any of the streets described as follows except vehicles complying with the residential parking permit program: 1. Ada Street: on both sides of Ada Street, from Sidney Avenue to Harrison Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Page 38 of 263 Back to Agenda Ordinance No. 049-22 Page 10 of 22 Sunday, and federal holidays. 2. Arnold on the west side of Arnold Avenue E: Avenue E., south of Bay Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 3. Austin on both sides, from Avenue: Division Street to Dwight Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 4. Bay Street: on both sides, from Orchard Avenue to Harrison Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. Vehicles with residential parking permits are not exempt from the parking restrictions specified within this subsection. 5. Bay Street: on the north side from the DeKalb Street pedestrian pier easterly for 110 feet. There will be 15-minute loading and unloading only. 6. Bay Street: on the south side from Port Orchard Boulevard to DeKalb Street and 130 feet east of DeKalb Street Page 39 of 263 Back to Agenda Ordinance No. 049-22 Page 11 of 22 to Kitsap Street there will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday and federal holidays. 7. Bay Street: on west side of the 1500 and 1600 block. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 8. Bay Street: on the north side at Ross Point (SR 166). There will be four-hour parking. 9. Bay Street: on the south side of Bay Street, west of Arnold Avenue E. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day, except Saturday, Sunday, and federal holidays. 10. Bravo on the east side from the Terrace: Bravo Terrace intersection south to end of cul-de-sac. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 11. Cline on both sides, from Kitsap Avenue: Street to Dwight Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 12. Cline from the northeast corner Page 40 of 263 Back to Agenda Ordinance No. 049-22 Page 12 of 22 Avenue: of Kitsap Street and Cline Avenue northerly along the east line of Cline Avenue to Bay Street. There will be two-hour parking from 8:00 a.m. tc 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 13. Cline on both sides, from Taylor Avenue: Street to Division Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 14. DeKalb on both sides, from Street: Seattle Avenue to Sidney Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays; except for a space on the south side of DeKalb Street beginning 105 feet east of Harrison Avenue and continuing easterly for 175 feet. The 175 feet as described shall be designated all day parking. 15. DeKalb on the north side, from Street: Sidney Avenue westerly for a distance of 120 feet. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 16. DeKalb on the south side, from Street: Tracy Avenue easterly to Page 41 of 263 Back to Agenda Ordinance No. 049-22 Page 13 of 22 the end of DeKalb Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 17. DeKalb on both sides, from Street: Mitchell Avenue westerly for a distance of 340 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 18. DeKalb on the north side, from Street: Mitchell Avenue to Tracy Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 19. Division on both sides, from Street: Sidney Avenue to Seattle Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 20. Division on both sides, from Cline Street: Avenue to Sidney Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 21. Division on both sides from Cline Street: Avenue westerly to dead end. There will be four- hour parking from 8:00 Page 42 of 263 Back to Agenda Ordinance No. 049-22 Page 14 of 22 a.m. to 5:00 p.m., on any day except Saturday, Sunday and federal holidays. 22. Dwight on both sides, from Street: Sidney Avenue to Seattle Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 23. Dwight on both sides, from Street: Mitchell Avenue westerly for a distance of 250 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 24. Dwight on both sides, from Austin Street: Avenue to Cline Avenue. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 25. Farragut on the east side, 160 feet Avenue: north of DeKalb Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 26. Frederick on both sides, from Avenue: waterfront parking lot to Prospect Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal Page 43 of 263 Back to Agenda Ordinance No. 049-22 Page 15 of 22 holidays. 27. Harrison on both sides, from Avenue: DeKalb Street to Dwight Street. There will be four- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 28. Harrison on both sides, from Avenue: Dwight Street to Division Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 29. Harrison on both sides from Ada Avenue: Street to dead end. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 30. Kitsap Street: on both sides, from Cline Avenue to Rockwell Avenue. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 31. Kitsap Street: on both sides, from Mitchell Avenue westerly for a distance of 150 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 32. Mitchell on the east side, from Page 44 of 263 Back to Agenda Ordinance No. 049-22 Page 16 of 22 Avenue: DeKalb Street northerly for a distance of 70 feet. There will be two-hour parking from 8:00 a.m. tc 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 33. Mitchell on the west side, from Avenue: Kitsap Street to Taylor Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 34. Mitchell on the east side, from Avenue: DeKalb Street southerly to the bus loading access road, shall be designated all day parking except for the revetment area which is two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 35. Morton on both sides, from Street: Rockwell Avenue westerly for a distance of 230 feet on both sides. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 36. Morton on both sides, from Street: Rockwell Avenue easterly for a distance of 230 feet on both sides. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Page 45 of 263 Back to Agenda Ordinance No. 049-22 Page 17 of 22 Sunday, and federal holidays. 37. Prospect on both sides, from Street: Sidney Avenue to Robert Geiger Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m. (except where posted as one -hour parking for the City Permit Center located at 720 Prospect Street; holders of residential parking permits are not exempt from this restriction), on any day except Saturday, Sunday, and federal holidays, and the inside radius of the curve between Robert Geiger Street and Frederick Avenue. 38. Prospect on both sides, from Kitsap Street: Street to Robert Geiger Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays, except where 30-minute zone is delineated. 39. Prospect along the green curb, in Street: front of City Hall at 216 Prospect Street. There is 30-minute parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 40. Robert on the north side, from Geiger Street: Prospect Street to Bay Street. There will be four - Page 46 of 263 Back to Agenda Ordinance No. 049-22 Page 18 of 22 hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 41. Seattle on both sides, from Kitsap Avenue: Street to Dwight Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 42. Seattle on both sides from Avenue: Dwight Street to Division Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 43. Sidney on both sides from Bay Avenue: Street to the waterfront. There will be two-hour parking from 8:00 a.m. tc 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 44. Sidney on the east side from Bay Avenue: Street to Prospect Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 45. Sidney on both sides, from Avenue: Prospect to Kitsap Street. There will be four-hour parking from 8:00 a.m. tc 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. Page 47 of 263 Back to Agenda Ordinance No. 049-22 Page 19 of 22 46. Sidney on both sides, from Kitsap Avenue: Street to DeKalb Street. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 47. Sidney on both sides, from Avenue: DeKalb Street to Ada Street. There will be two- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 48. Sweany on the south side, from Street: Cline Avenue westerly for a distance of 300 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 49. Sweany on the north side, from Street: Sidney Avenue westerly for a distance of 200 feet. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 50. Tracy on both sides, from Avenue: DeKalb Street to Guy Wetzel Street. There will be two-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 51. Tracy abutting 219 Tracy Avenue: Avenue. There will be Page 48 of 263 Back to Agenda Ordinance No. 049-22 Page 20 of 22 four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 52. Water from Bay Street to Street: waterfront on the west side. There will be four- hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. 53. SW Yarrow on the south side, from St: Explorer Avenue westerly for a distance of 360 feet and easterly for a distance of 390 feet. There will be four-hour parking from 8:00 a.m. to 5:00 p.m., on any day except Saturday, Sunday, and federal holidays. (2) Violation of this section is a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). SECTION 4. Section 10.12.500 of the Port Orchard Municipal Code is hereby amended to read as follows: 10.12.500 Parking time limited on certain city parking lots. (1) The city parking lots are identified as follows: (a) Lot 1, which lies between Orchard and Frederick Streets, on the north of Bay Street. Parking in Lot 1 is a combination of city parking and Port Orchard Marina parking. Port Orchard Marina parking is the three northernmost rows and shall be managed by the Port of Bremerton. City parking is limited to four hours maximum and/or monthly merchant parking. (b) Lot 2, which lies between Frederick Street and Sidney Avenue, north of Bay Street. Parking in Lot 2 shall be allowed for a maximum period of four hours, including two car charging stalls limited to four hours maximum, and one motorcycle stall. Page 49 of 263 Back to Agenda Ordinance No. 049-22 Page 21 of 22 (c) Lot 3, which is the five rows of parking area under city jurisdiction west of Harrison Avenue and east of and parallel to the library's easternmost exterior wall. Parking in the three westerly rows of Lot 3 shall be allowed for a maximum period of four hours at no monetary charge. Parking in the easterly two rows is paid parking and shall require a paid daily parking pass as established in POMC 10.12.520. (d) Lot 4, which is all parking area under city jurisdiction which lies east of Parking Lot 3 and Harrison Avenue and west of the Marina Park. Parking in Lot 4 is a combination of free two- hour parking for the park at the most northerly and easterly corner and paid parking and shall require a paid daily parking pass as established in POMC 10.12.520. (e) Lot 5, which is all parking spaces on City Hall property (first floor entry). Parking in Lot 5 shall be for City Hall ADA Parking patrons and official vehicles only. The police chief or his/her designate may authorize deviations to this policy for Lot 5, if necessary. No monetary charge. (f) Lot 6, which is all parking spaces abutting the landscaped area at the southwest corner of the intersection of Bay Street and DeKalb Street (Bayside Plaza). Parking in Lot 6 shall be allowed for a maximum period of two hours. No monetary charge. (g) Lot 7, which is all parking spaces located on the library property. Parking in Lot 7 shall be limited to library staff only. Access to Lot 7 and parallel parking stalls via the adjacent parcel to the south pursuant to easement AF# (8903310122). No monetary charge. (h) Lot 8, which lies east of City Hall, north of and adjacent to Prospect Alley (between Kitsap Street and Prospect Street). Lot 8 is for designated city vehicles and city employees via pass Monday through Friday. No monetary charge. (i) Lot 9, 720 Prospect St, which lies east of Lot 8, north of and adjacent to Prospect Alley (between Kitsap Street and Prospect Street). Lot 9 is for designated vehicles and city employees via pass Monday through Friday. No monetary charge. (j) Lot 10, which lies on the east side of McCormick Village Dr. between SW Old Clifton Rd and SW Yarrow St. Parking in Lot 10 shall be allowed for a maximum period of four hours, enforced on a 24-hour basis. (k) Paul Powers Park, which lies north and east of the public works department "south shed" located at 2051 Sidney Avenue. Paul Powers Park parking is limited to dawn -to -dusk parking only. (1) Van Zee Park, which lies south of Tremont Street and west of Sidney Avenue, located at 300 Tremont Street. Van Zee Park parking is limited to dawn -to -dusk parking only. (m) Rockwell Pocket Park will be limited to two-hour parking from dawn to dusk. (2) Parking restrictions in Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 shall be enforced on a 24-hour basis, except Saturday, Sunday, and federal holidays within the city. Page 50 of 263 Back to Agenda Ordinance No. 049-22 Page 22 of 22 (3) Parking restrictions in Lot 4 shall also be enforced on a 24-hour basis on each Saturday in the period of April 1st to October 31st. (4) Currency through electronic payment in an electronic parking pay station or similar instrument provided near the parking space for each 12-hour interval or part thereof. (5) Violation of this section is a Class A infraction. (Ord. 029-22 § 1 (Exh. A)). SECTION S. Authorization to Post Signs. The City Engineer is hereby directed to post the signs as required by this Ordinance and as a result of the amendment of POMC Sections 10.12.460, 10.12.490, and 10.12.500, upon the effective date of this Ordinance. SECTION 6. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of this Ordinance. SECTION 7. Effective Date. This ordinance shall be in full force and effect five (5) days after posting and publication as required by law. A summary of this Ordinance may be published in lieu of the entire ordinance, as authorized by State Law. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this 201" day of December 2022 Robert Putaansuu, Mayor ATTEST: Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: SPONSOR: Charlotte A. Archer, City Attorney Scott Diener, Councilmember PUBLISHED: EFFECTIVE DATE: Page 51 of 263 Back to Agenda Agenda Item No.: Subject: City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7A Adoption of an Ordinance Authorizing the Position of Code Enforcement Meeting Date: Prepared by: Officer I, Establishing General Duties Atty Routing No. and Qualifications and Setting Salary Atty Review Date Ranges December 20, 2022 Debbie Lund HR Manager 366922-0008 - HR December 16, 2022 Summary: As part of the 2023-2024 budget process, the Community Development Department was given authority to hire an additional FTE into the Code Enforcement Officer position. After further discussion and review of the demands of the position, the Department has requested that the current Code Enforcement Officer be designated as the Code Enforcement Officer II and that the City develop a job description and pay range reflecting the additional FTE as a Code Enforcement Officer I, a position with less experience, less responsibility, and therefore a lower pay rate. Staff believes this will aid in the recruitment for the second position, allowing it to be a more entry position into the profession, with room to learn and grow. The Ordinance for consideration tonight would change the existing title of Code Enforcement Officer to Code Enforcement Officer II with no other changes in duties, responsibilities or pay. In addition, the Ordinance would create the position of Code Enforcement Officer I and establish the general duties and qualifications for the position and establish the pay range at 14% below the Code Enforcement Officer II position or $31.40 to 36.41 per hour, which equates to $65,312 to $75,732 per year. This proposed change results in a cost savings to the City. The Personnel Position Listing in the 2023- 2024 budget will be modified appropriately with the passage of the Ordinance. The City Council previously adopted Ordinance 008-20, which delegates authority to the Mayor to establish and amend job descriptions, provided they are consistent with the general qualifications and duties assigned by the Council. Therefore, attached to this proposed Ordinance for Council's consideration is a summary of qualifications and duties for each of the newly proposed positions. Recommendation: Staff recommends approval of the attached Ordinance which includes provisions for general qualifications and duties assigned for the new position of Code Enforcement Officer I and approval of the salary range for the position. Relationship to Comprehensive Plan: N/A Motion for consideration: "I move to adopt an ordinance authorizing the creation of the position of Code Enforcement Officer I, establishing general qualifications and duties for the positions, and setting the salary range for the position" Page 52 of 263 Back to Agenda Staff Report 7A Page 2 of 2 Fiscal Impact: This reflects a costs savings to the City and would be incorporated into the salary table attached to the budget via a future budget amendment. Alternatives: Do not approve the position summary and proposed salary and provide alternative guidance. Attachments: Ordinance and Appendix A, position summary for Code Enforcement Officer I. Page 53 of 263 Back to Agenda ORDINANCE NO. AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, TO AUTHORIZE POSITION OF CODE ENFORCEMENT OFFICER I AND CODE ENFORCEMENT OFFICER II, TO ESTABLISH GENERAL QUALIFICATIONS AND DUTIES OF POSITION, AND SET THE SALARY RANGE FOR THE POSITION; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, the City has determined that rather than having two employees at the same Code Enforcement Officer level, the City should create the position of Code Enforcement Officer I and revise the title of the current Code Enforcement Officer to Code Enforcement Officer 11; and WHEREAS, the 2023-2024 budget contains two FTE at the Code Enforcement Officer position; and WHEREAS, the 2023-2024 budget also contains the approved salary for the Code Enforcement Officer; and WHEREAS, the 2023-2024 approved salary for Code Enforcement Officer would be applied to the Code Enforcement Officer II position; and WHEREAS, a salary of 14% less for the position of Code Enforcement Officer I has been determined appropriate based on the minimum requirements proposed for the position; and WHEREAS, this proposal provides for a savings in the 2023-2024 budget due to the reduced salary for the position; and WHEREAS, this Ordinance would modify the Personnel Position Listing as adopted in the 2023-2024 budget; and WHEREAS, Ordinance 008-20 delegates authority to the Mayor to establish and amend job descriptions, provided they are consistent with the general qualification and duties assigned by the council; and WHEREAS, a statement of the general qualifications and duties of the Code Enforcement Officer I position is attached hereto as Appendix A, and incorporated herein by reference; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby authorizes the creation of the position of Code Page 54 of 263 Back to Agenda Ordinance No. Page 2 of 3 Enforcement Officer I with qualifications and general duties as generally provided for in Appendix A. SECTION 2. The City Council hereby revises the previously approved position title of Code Enforcement Officer to Code Enforcement Officer 11. SECTION 3. The City Council hereby sets a salary range for the position of Code Enforcement Officer I between $31.40 and $36.41 per hour on the 2023 pay scale. SECTION 4. The City Council acknowledges that this will create a change to the Personnel Position Listing in the 2023-2024 budget, with no additional fiscal impact. Staff is directed to incorporate this change into the 2023-2023 budget salary table. SECTION 5. Severability. If any section, sentence, clause or phrase of this Ordinance should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 6. Publication. This Ordinance shall be published by an approved summary consisting of the title. SECTION 7. Effective Date. This Ordinance shall take effect and be in full force and effect five days after publication as provided by law. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the Clerk in authentication of such passage this 20t" day of December 2022. Robert Putaansuu, Mayor ATTEST: Brandy Wallace, MMC, City Clerk I_1»:Z�)1��_[.�r�l��l:1► yl�l►[•��]:Z��I:Jt'E Charlotte A. Archer, City Attorney John Clauson, Councilmember Page 55 of 263 Back to Agenda Ordinance No. PUBLISHED: EFFECTIVE DATE: Page 3 of 3 Page 56 of 263 Back to Agenda ;0 4 a Agenda Item No. City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Business Item 7B Agenda Staff Report Subject: Adoption of a Resolution Adopting Policies for Washington Paid Family and Medical Leave and Volunteer Emergency Services Leave Meeting Date: December 20, 2022 Prepared by: Debbie Lund HR Manager Atty Routing No.: 366922-0008 — HR Atty Review Date: December 12, 2022 Summary: Human Resources staff continues to review the City's personnel policies and procedures to comply with regulatory changes and industry best practices. A recent review noted that two policies should be included in the City's personnel policy manual. This proposal documents the City's current practices related to those policies. First, the Washington State Paid Family and Medical Leave Program (PFML) was passed by the state legislature in 2017. Premiums were implemented in 2019 and benefits became available in 2020. The City has been in compliance with the program since implementation. The policy for consideration tonight documents the City's handling of the program, including the practice of not allowing employees to supplement the PFML benefits received from the state with the use of their own leave from the City. Rather, an employee using the state PFML program typically goes into unpaid status from the City while receiving state benefits. Job protections and insurance benefits continue during that period, in accordance with the law. Second, Washington also provides job protections to employees who are volunteer firefighters, reserve police officers or members of the Civil Air Patrol when called to perform emergency services. In effect since 2001, this law drew attention again recently in 2021 in response to the 2020 wildfires that swept across central Washington, generating a demand for wildland firefighters. Both of these items are reflected in the proposed policies for adoption. Having a comprehensive City personnel policy manual enables staff and employees to more readily access and reference all the policies that may apply to any given situation. Recommendation: Staff recommends the Council adopt the attached resolution approving two additional leave policies, as provided for in Washington law. Relationship to Comprehensive Plan: N/A Motion for consideration: I move to adopt a Resolution adopting written policies for the Washington State Paid Family and Medical Leave Program, and the Washington Volunteer Emergency Services Leave. Page 57 of 263 Back to Agenda Business Item 7B Page 2 of 2 Fiscal Impact: None, the costs associated with these policies are included in the budget. Alternatives: Not authorize the Resolution and provide further guidance. Attachments: Resolution. Page 58 of 263 Back to Agenda RESOLUTION NO. A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, ADOPTING POLICIES FOR WASHINGTON PAID FAMILY AND MEDICAL LEAVE AND FOR VOLUNTEER EMERGENCY SERVICES LEAVE. WHEREAS, Washington state implemented the Washington Paid Family and Medical Leave (PFML) program premiums in 2019, and benefits in 2020; and WHEREAS, Washington state law provides job protections for employees who also serve as a volunteer firefighter, reserve peace officer, or member of the Civil Air Patrol and are called upon to perform emergency services; and WHEREAS, the City of Port Orchard has acted in compliance with these regulations since their effective dates; and WHEREAS, in a routine review of leave policies, it was determined that these policies should be provided in writing and included in the City's personnel policy manual; now, therefore; THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. THAT: The Mayor is authorized to implement a Personnel Policy in substantially the form attached hereto as "Exhibit 1", and incorporate the Policy into the City's personnel policy manual. THAT: The Mayor is authorized to sign any agreement consistent with this authorization as an addendum to a collective bargaining agreement to implement this program for employees who are represented by a union without further action by the Council. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage this 201" day of December 2022. ATTEST: Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 59 of 263 Exhibit 1 8.14 WASHINGTON PAID FAMILY AND MEDICAL LEAVE The Washington State Paid Family and Medical Leave (PFML) law and supporting regulations establish a program administered by the Washington Employment Security Department (ESD) to provide paid leave benefits and job protection to eligible employees who need leave for certain family and medical reasons. This policy provides a summary of the PFML program. Employees may obtain additional information at www.paidleave.wa.gov. To the extent an issue is not addressed in this policy, the City will administer this benefit program consistent with applicable statutes and regulations. A. Payroll Deductions. The PFML program is funded through premiums collected by ESD via payroll deductions and City contributions. The premium rate is established by law and subject to change. The City will modify payroll deductions to reflect those changes. B. Eli2ibility. Under PFML, employees may be eligible for monetary benefits and job protection when taking leave for covered reasons. Eligibility requirements are as follows: 1) Monetary Benefits: In order to be eligible for monetary benefits from ESD, an employee must have worked 820 hours in Washington (for any employer or combination of employers) during the year preceding the claim. 2) Job Protection: In order to be eligible for job protection under PFML, an employee must have worked for the City for at least 12 months and have worked 1250 hours in the last year. An employee is ineligible for PFML benefits during any period of suspension from employment or during which the employee works for remuneration or profit (e.g., outside employment or contracting). C. Leave Entitlement. Eligible employees are entitled to take up to 12 weeks of medical or family leave, or a combined total of 16 weeks of family and medical leave per claim year; an additional two weeks of leave may be available in the event the employee's leave involves incapacity due to pregnancy. The claim year begins when the employee files a claim for PFML benefits. PMFL leave may be taken for the following reasons: 1) Medical Leave: Medical leave may be taken due to the employee's own serious health condition, which is an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider, as those terms are defined under the FMLA and RCW 50A.05.010. In the case of PFML following the birth of a child, the first six weeks of leave taken by the birth parent following the birth shall be automatically designated as medical leave unless the birth parent chooses to use family leave. The employee is not required to provide certification of a serious health condition the medical leave designation for this postnatal period. An employee is not eligible for PFML benefits if the employee is receiving time loss benefits under the workers compensation system. Exhibit 1, Page 1 Page 60 of 263 2) Family Leave: For purposes of family leave, covered family members include the employee's child, grandchild, parent (including in-laws), grandparent (including in-laws), sibling, spouse; or any individual who regularly resides in the employee's home or with whom the relationship creates an expectation that the employee care for the person (and that person depends on the employee for care). "Family member" does not include a person who simply resides in the same home as the employee with no expectation that the employee care for that person. Family leave may be taken to care for a covered family member with a serious health condition; for bonding during the first 12 months following the birth of the employee's child or placement of a child under age 18 with the employee (through adoption or foster care); or for qualifying military exigencies as defined under the FMLA. 3) Bereavement Leave: An employee may take PFML as bereavement leave during the seven calendar days following the death of a child born to the employee or placed with the employee. PFML runs concurrently with FMLA where an absence is covered by both laws. PFML leave may be taken intermittently, provided that there is a minimum claim requirement of eight consecutive hours of leave in a week for which benefits are sought. D. PFML Application Process. An employee must submit an application to ESD in order to seek PFML benefits. For guidance on the application process, please refer to the ESD website (www.paidleave.wa.gov). Eligibility determinations will be made by ESD. If approved, the employee will need to file weekly benefit claims with ESD to continue receiving benefits. E. Notification Requirements. An employee must provide written notice to the City of the intent to take PFML leave. If the need for leave is foreseeable, notice must be given at least 30 days in advance of the leave. For unforeseeable leave, notice must be given as soon as practicable. The employee's written notice must include the type of leave taken (family or medical), as well as the anticipated timing and duration of the leave. If an employee fails to provide this required notice to the City, ESD will temporarily deny PFML benefits. After receiving the employee's notice of the need for leave, the City will advise the employee whether the employee is eligible for job protection under PFML or FMLA or both. If leave is being taken for the employee's or family member's planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to unduly disrupt City operations. If taking leave intermittently, an employee must notify the City each time PFML leave is taken so that the City may properly track leave use. F. PFML Monetary Benefits. If ESD approves a claim for PFML benefits, partial wage replacement benefit payments will be made by ESD directly to the employee. The amount of the benefit is based on a statutory formula, which generally results in a benefit in the range of 75-90 percent of an employee's average weekly wage, subject to a weekly maximum (which is $1,427 for 2022 and thereafter subject to annual adjustments by the Exhibit 1, Page 2 Page 61 of 263 State). ESD's website includes a benefits calculator to assist employees in estimating their weekly benefit amount. With the exception of leave taken in connection with the birth or placement of a child or leave taken for a qualifying military exigency, monetary PFML benefits are subject to a seven-day waiting period. The waiting period begins on the Sunday of the week in which PFML leave is first taken. The waiting period is counted for purposes of the overall duration of PFML leave, but no monetary benefits will be paid by ESD for that week. Employees may use available accrued leave to cover absences during the waiting period. Paid leave accruals (vacation, sick leave, personal holidays, compensatory time, or any other accrued leave) are not supplemental to PFML benefits, meaning that an employee cannot receive accrued leave and PFML benefits for the same absence. If an employee elects to use accrued leave during a PFML-covered absence, the receipt of accrued leave must be reported to ESD as part of the PFML claims process and will result in a pro -rated (reduced) weekly PFML benefit to reflect that the employee already received some compensation for the absence. 1) Important note: Failure to report the receipt of accrued leave may result in an overpayment by ESD, which ESD may recoup from the employee. G. Coordination with Other Benefit Programs. When an employee is on leave and only receiving PFML benefits, the employee is deemed to be in unpaid status for purposes of City policies and benefit programs. Insurance coverage will be handled in the same manner as other unpaid leaves of absence, pursuant to City policy and subject to any FMLA or other legal requirements requiring continuation of coverage. H. Job Restoration, Return to Work Recertification. An employee who is eligible for job - protected leave will be restored to the same or equivalent position at the conclusion of PFML leave, unless unusual circumstances have arisen (e.g., the employee's position or shift was eliminated for reasons unrelated to the leave). The City may require a return -to - work certification from a health care provider before restoring the employee to work following PFML leave where the employee has taken leave for the employee's own serious health condition. Under certain conditions, the City may deny job restoration to a salaried employee who is among the highest paid ten percent of City employees. If an employee taking PFML leave chooses not to return to work for any reason, the employee should notify the City as soon as possible. Exhibit 1, Page 3 Page 62 of 263 8.15 VOLUNTEER EMERGENCY SERVICES LEAVE In accordance with RCW 49.12.460, an employee who is a volunteer firefighter or reserve peace officer, or member of the Civil Air Patrol, will not be subject to discipline or termination when they take leave in response to an alarm of fire or an emergency call, or in the case of Civil Air Patrol, when leave is taken related to an emergency service operation. A. For the purposes of this policy, the following definitions apply: "Alarm of fire or emergency call" means responding to, working at, or returning from a fire alarm or an emergency call, but not participating in training or other nonemergency activities. "Civil air patrol member" means a person who is a member of the Washington wing of the civil air patrol. "Emergency service operation" means the following operations of the civil air patrol: (i) Search and rescue missions designated by the air force rescue coordination center; (ii) Disaster relief, when requested by the federal emergency management agency or the department of homeland security; (iii) Humanitarian services, when requested by the federal emergency management agency or the department of homeland security; (iv) United States air force support designated by the first air force; and (v) Counterdrug missions. "Volunteer firefighter", means a firefighter covered under chapter 41.24 RCW, (i) who voluntarily performs, regardless of reimbursement, any assigned or authorized duties on behalf of or at the direction of a firefighting or emergency response unit of a city, county, fire district, regional fire protection district, port district, or the state, including but not limited to service pursuant to RCW 43.43.960 through 43.43.975; and A) has notified the City of their firefighter status and intent to serve as a volunteer if already at the place of employment when called to serve as a volunteer; or B) if not already at the place of employment when called to serve as a volunteer has been ordered to remain at their position by the commanding authority at the scene of the fire. "Reserve peace officer" has the meaning provided in RCW 41.24.010. B. Notice Requirements An employee shall make every reasonable attempt to give their supervisor advance notice of the need to take leave. Exhibit 1, Page 4 Page 63 of 263 Back to Agenda C. Type of Leave An employee who is absent from work pursuant to this policy may elect to use their accrued vacation leave, personal holiday, compensatory time or unpaid leave time. D. Verification The supervisor may require that the request for leave be supported by verification from the agency at which the employee volunteers. E. Time for training Training and other non -emergency activities are excluded under this policy. Exhibit 1, Page 5 Page 64 of 263 Back to Agenda ;W 4 a City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Business Item 7C Meeting Date: December 20, 2022 Subject: Adoption of a Resolution Confirming Prepared by: Brandy Wallace, MMC Mayoral Appointments to Boards, City Clerk Committees, and Commissions Atty Routing No.: N/A Atty Review Date: N/A Summary: Annually, the City Clerk's office reviews the expiring terms and/or vacancy of members of various boards, committees, and commissions. The Mayor is seeking to appoint the following volunteers to fill expired or vacant terms on various boards, committees, and commissions, upon confirmation of the City Council: • Planning Commission: appointment of Paul Fontenot, Position No. 4, for a four-year term expiring December 31, 2026; • Design Review Board: appointment of Noel Larsen, Professional Position No. 1, for a three-year term expiring December 31, 2025, and appointment of Steve Havert, Professional Position No. 2, for a three-year term expiring December 31, 2025; • Civil Service Commission: re -appointment of Ken Kambich for a six -year term expiring December 31, 2028; • Kitsap County Grant Recommendation Committee: re -appointment of Christine Stansbery for a one- year term expiring December 31, 2023; • Kitsap County Capital Grant Recommendation Committee: appointment of Sheri Ellington for a one- year term expiring December 31, 2023; and • Peninsula Regional Transpiration Planning Organization (PRTPO): re -appointment of Bek Ashby for a one-year term expiring December 31, 2023. Recommendation: Mayor Putaansuu recommends adoption of a Resolution confirming his appointments, as presented. Relationship to Comprehensive Plan: N/A. Motion for consideration: "I move to adopt a Resolution confirming the Mayor's appointments to the Boards, Committees, and Commissions, as set forth in the Resolution presented." Fiscal Impact: None. Alternatives: Not confirm the Mayor's appointment and provide further direction. Attachments: Resolution. Page 65 of 263 Back to Agenda 3*119RIj�[�L�i,[�a A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON CONFIRMING MAYORAL APPOINTMENTS TO THE PLANNING COMMISSION, DESIGN REVIEW BOARD, CIVIL SERVICE COMMISSION, KITSAP COUNTY GRANT AND CAPITAL GRANT RECOMMENDATION COMMITTEE AND PENINSULA REGIONAL TRANSPIRATION PLANNING ORGANIZATION (PRTPO) WHEREAS, the Mayor is authorized to appoint volunteers to fill expired or vacant terms on various boards, committees, and commissions, upon confirmation of the City Council; and WHEREAS, the following boards, committees, and commissions have expiring or vacant terms; now therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The City Council of the City of Port Orchard does hereby confirm the appointment of Paul Fontenot, Position No. 4, to the Planning Commission for a four-year term expiring December 31, 2026. THAT: The City Council of the City of Port Orchard does hereby confirm the appointments of Noel Larsen, Professional Position No. 1, and Steve Havert, Professional Position No. 2, to the Design Review Board for a three-year term expiring December 31, 2025. THAT: The City Council of the City of Port Orchard does hereby confirm the re -appointment of Ken Kambich to the Civil Service Commission for a six -year term expiring December 31, 2028. THAT: The City Council of the City of Port Orchard does hereby confirm the re -appointment of Christine Stansbery to the Kitsap County Grant Recommendation Committee for a one-year term expiring December 31, 2023. THAT: The City Council of the City of Port Orchard does hereby confirm the appointment of Sheri Ellington to the Kitsap County Capital Grant Recommendation Committee for a one-year term expiring December 31, 2023. THAT: The City Council of the City of Port Orchard does hereby confirm the re -appointment of Bek Ashby to the Peninsula Regional Transpiration Planning Organization (PRTPO) for a one-year term expiring December 31, 2023. Page 66 of 263 Back to Agenda Resolution No. Page 2 of 2 PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this 201" day of December 2022. ATTEST: Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 67 of 263 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Business Item 7D Subject: Adoption of a Resolution Adopting the 2023 City Council Meeting Schedule Meeting Date Prepared by Atty Routing No.: Atty Review Date: Back to Agenda December 20, 2022 Brandy Wallace, MMC City Clerk N/A N/A Summary: Pursuant to POMC 2.04.010 Meeting Time and Place, the City Council shall hold a minimum of one meeting per month. The City Council shall determine the annual schedule for these meetings for the next calendar year, no later than the last regular business meeting of the preceding calendar year. As done in previous years, the Council will continue to meet at 6:30 pm on the 2nd and 4t" Tuesday of every month for Regular Council meetings and the 3rd Tuesday of every month for a Council work study session. However, the meeting in August will only be held on the 2nd Tuesday, and the meeting in December will be the 2nd and 3rd Tuesday that month, and both meetings to be Regular Council meetings. Recommendation: Staff recommends adoption of a Resolution, adopting the 2023 City Council meeting schedule as presented. Relationship to Comprehensive Plan: None Motion for consideration: I move to adopt a Resolution, adopting the 2023 City Council meeting schedule, as presented. Fiscal Impact: N/A Alternatives: N/A Attachments: Resolution. Page 68 of 263 Back to Agenda RESOLUTION NO. A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, ADOPTING THE 2023 CITY COUNCIL MEETING SCHEDULE PURSUANT TO POMC 2.04.010 MEETING TIME AND PLACE. WHEREAS, on July 11, 2017, City Council adopted Ordinance No. 026-17 which adopted the classification of non -charter code city for the City of Port Orchard; and WHEREAS, on pursuant to Port Orchard Municipal Code 2.04.010 Meeting Time and Place the city council shall hold a minimum of one meeting per month. The city council shall determine the annual schedule for these meetings for the next calendar year no later than the last regular business meeting of the preceding calendar year; and WHEREAS, City Council typically will meet for regular business meetings the 2nd and 4tn Tuesday of each month, with a work study meeting the 3rd Tuesday of each month; and WHEREAS, the meeting in August will only be held on the 2nd Tuesday, and the meeting in December will be the 2nd and 3rd Tuesday that month, and both meetings to be Regular Council meetings; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The 2023 city council meeting calendar shall be adopted, and meetings shall be held on: January 10tn 171n and 241n February 14tn 21St and 28tn March 14tn 21St and 28tn April 11tn 181n and 251n May 91n, 16tn and 23rd June 13tn 201n and 271n July 11tn 181n and 251n August 8tn September 12tn 19tn and 26tn October 10tn 17tn and 24tn November 14tn, 215Y and 28tn December 12tn and 19tn PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage this 20tn day of December 2022. ATTEST: Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 69 of 263 Agenda Item No.: Subject: City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7E Adoption of a Resolution Approving a Memorandum of Understanding with Port of Bremerton for the Marina Pump Station Meeting Date: Prepared by: Atty Routing No.: Atty Review Date: Back to Agenda December 20, 2022 Tony Lang, PW Dir. 366922-0009 — PW December 13, 2022 Summary: The City owns and operates an existing sewerage pump station located within the Port Orchard Harbor Area in Sinclair Inlet, subject to an Aquatics Land Lease from the Department of Natural Resources (DNR) (Lease No. 22-A02582). The Port of Bremerton owns and operates the Port Orchard Marina adjacent to the City's sewerage pump station, subject to both a Port Management Agreement and an Aquatics Land Lease both with DNR (PMA No. 22-080016 and Lease No. 22-1302235). The City has designed the Marina Pump Station project to replace the existing sewerage pump station (the "Project"), and the Project will necessitate the use of the Port's property for construction and associated staging. Construction will result in an encroachment into the Port of Bremerton's leased area, which triggers a required modification to the DNR-issued Aquatics Land Lease for both the City and the Port. The City and Port have negotiated the terms of a Memorandum of Understanding to govern the relationship between the two agencies during the pendency of the Project's construction as well as communications/submissions to DNR for the parties' lease agreements. Recommendation: Staff recommends the City Council adopt a Resolution authorizing the Mayor to execute a Memorandum of Understanding with the Port of Bremerton for the Marina Pump Station project. Relationship to Comprehensive Plan: N/A Motion for consideration: "I move to adopt a Resolution authorizing the Mayor to execute a Memorandum of Understanding with the Port of Bremerton for the Marina Pump Station project." Fiscal Impact: Approximately $88/annually for the City's proportionate share of Port of Bremerton's lease area, and actual costs incurred (not to exceed $5,000) for preparing the MOU, surveys, legal descriptions, etc. Costs to be paid from the 2023/2024 operational budget and paid to the Port of Bremerton. Once both DNR leases are amended, the City's proportionate share of Port of Bremerton's lease area will be terminated. Alternatives: Do not approve and provide alternative guidance, however this is necessary for the Marina Pump Station project to move forward. Attachments: Resolution, Memorandum of Understanding with the Port of Bremerton. Page 70 of 263 Back to Agenda RESOLUTION NO. 124-22 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING WITH THE PORT OF THE BREMERTON FOR THE MARINA PUMP STATION. WHEREAS, the Port Orchard Marina located within the Port Orchard Harbor Area in Sinclair Inlet is owned and operated by the Port of Bremerton, pursuant to a Port Management Agreement (PMA) No. 22-080016 and an Aquatic Land Lease No. 22-B02235 with the Washington Department of Natural Resources ("DNR"); and WHEREAS, the City utilizes property adjacent to the Port of Bremerton's property for a parking lot, public access, and a public sewage pump station, pursuant to an Aquatic Land Lease No. 22-A02582 with DNR; and WHEREAS, the City has designed the Marina Pump Station to replace the existing pump station to increase capacity and better serve the community, along with associated improvements (the "Project"), and the Project will impact the Port of Bremerton's property and require a modification to the City's and the Port's agreements with DNR; and WHEREAS, the City and the Port of Bremerton have negotiated a Memorandum of Understanding to govern the City's use of the Port's property during the Project's construction, as well as communications/submissions to DNR for the parties' agreements; and WHEREAS, the City Council finds it is in the best interest of the City and its residents to authorize the execution of this agreement; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. THAT: The Mayor is authorized to execute the Memorandum of Understanding with the Port of Bremerton for the Marina Pump Station project. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 20th day of December 2022. ATTEST: Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 71 of 263 Back to Agenda Memorandum of Understanding for Use of Department of Natural Resources (DNR) Aquatics Land Area in Port of Bremerton Port Management Agreement (PMA) 22-080016 Between City of Port Orchard and Port of Bremerton 2022 Page 72 of 263 Back to Agenda Contents 1. RECITALS...............................................................................................................................................1 2. PURPOSE...............................................................................................................................................2 3. PREMISES..............................................................................................................................................3 4. EFFECTIVE DATE....................................................................................................................................3 S. TERM.....................................................................................................................................................3 6. PERMITTED USE....................................................................................................................................4 7. COMPENSATION...................................................................................................................................4 8. RESTRICTIONS ON USE; COMPLIANCE WITH LAW................................................................................5 9. INSURANCE...........................................................................................................................................6 10. RECIPROCAL INDEMNIFICATION...........................................................................................................7 11. PRESENCE OF HAZARDOUS MATERIALS................................................................................................8 12. DEFAULT BY CITY OF PORT ORCHARD................................................................................................... 8 13. NOTICE.................................................................................................................................................. 8 14. ENTIRE AGREEMENT.............................................................................................................................9 Page 73 of 263 Back to Agenda MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING ("MOU") is dated on the day of the last signature on this MOU, by and between the Port of Bremerton ("Port"), a public port district, and the City of Port Orchard ("City"), a Washington State municipal corporation. RECITALS A. The Port Orchard Marina is owned and operated by the Port of Bremerton, which has a Port Management Agreement (PMA) no. 22-080016 with Department of Natural Resources ("DNR") for use of State-owned aquatics lands for port purposes. It is located within the Port Orchard Harbor Area in Sinclair Inlet, in Kitsap County, Washington. B. The Port of Bremerton has a lease no. 22-B02235 with DNR for use of State-owned aquatic lands commonly known as the Port of Bremerton Port Orchard Waterfront, for the Port use with the Port Orchard equipment and water dependent uses serving the Port Orchard Marina. The present termination date for lease no. 22-B02235 is August 31, 2041. Throughout this Agreement, this lease is referred to as the "Port's DNR Lease". C. The City of Port Orchard has a lease no. 22-A02582 with DNR for use of State-owned aquatics lands for parking lot, public access, and City public sewage pump station. The lease area is located within the Port Orchard harbor area of Sinclair Inlet, in the City of Port Orchard, Kitsap County, Washington. The present termination date for lease no. 22-OA2582 is June 3, 2024. Throughout this Agreement, this lease is referred to as the "City's DNR Lease". D. The State-owned aquatics lands under the Port's DNR lease and the City's DNR Lease for the City Pump Station are adjacent parcels. E. The City of Port Orchard existing City sewage pump station impacts and encroaches into the Port of Bremerton lease area within the Port's DNR Lease, and the City proposes to demolish the existing station and to construct a new sewage pump station, holding tanks, conveyance pipes, and power generation improvements with an increased impact and encroachment into the Port of Bremerton lease area subject to the Port's DNR Lease. An Exhibit of those proposed, expanded encroachments are depicted in Exhibit A. F. The Port is willing to allow City use of the portion of upland state-owned lands area that overlaps the Port's DNR Lease of the Port's PMA no. 22-0800016 shown in Exhibit A. G. The Port is willing to allow the City temporary use of the upland state-owned lands for temporary project construction access and staging and that overlaps the Port's DNR lease shown in Exhibit B. Page 1 1 Page 74 of 263 Back to Agenda H. The City commits that the Port shall have use and public access to Port Marina Buildings, Marina Access Gates, and to the Port facilities for uninterrupted operations throughout the construction period for the City Marina Sewage Pump Construction project. I. The City commits that the Port shall have use and access for semi fuel truck delivery to the Port Orchard Marina fuel tanks for uninterrupted fuel dock operations throughout the construction period and after completion of the proposed Sewage Pump Station, subsequent Port Orchard Community Center, and proposed Bay Street Elevation improvement projects. The Port commits to provide the City with 72-hour advanced notice of deliveries, consistent with the terms of this agreement. J. The City agrees to coordinate with the Port for any modifications and/or updates to the aforementioned existing DNR leases, as may be required by DNR. The Port authorizes the City to communicate with DNR regarding these specific lease modifications, provided the Port is included on these communications. The City commits that it will provide all needed language and exhibits for lease modifications (if any) for the City encroachments. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: AGREEMENT 1. RECITALS The foregoing recitals are true and correct and are incorporated herein by this reference. 2. PURPOSE 2.1 The purpose of this Memorandum of Understanding is to set forth the terms and conditions by which the Port will sublet to the City that portion of property described below as the "Premises" for a time certain, conditioned upon and pending DNR approval, as well as the terms and conditions of seeking and obtaining necessary modifications to the City lease referenced above and the Port lease referenced above, conditioned upon DNR approval, which will remove the area described as the "Premises" from the Port lease and add it to the City lease. The parties acknowledge this process may be lengthy, and provide for the time frame below. 2.2 The purpose of this MOU is to also replace and rescind the existing 1987 MOU between the City of Port Orchard and the Port of Bremerton regarding the existing wastewater pump station. 3. PREMISES The "Premises" consists approximately of 1,524.25 square feet of DNR aquatic lease area shown in Exhibit A, attached hereto, and as depicted and legally described in Exhibit A. By this Agreement and subject to DNR approval, the parties intend for the Premises to be removed from the Port's DNR Lease and added to the City's DNR Lease. Page 1 2 Page 75 of 263 Back to Agenda The City of Port Orchard acknowledges and agrees that it is familiar with the Premises, accepts the Premises in its "as is" condition, without any improvements or alterations by Port, without representation or warranty of any kind, and subject to all applicable laws governing its use, occupancy, and possession. City acknowledges and agrees that it has investigated and inspected the condition of the Premises and the suitability of the Premises for City's intended use. City acknowledges and agrees that Port has not made, and Port hereby disclaims, any representations or warranties, express or implied, concerning the rentable area of the Premises, the physical or environmental condition of the Premises, the present or future suitability of the Premises for City's intended use, accessibility of the Premises or any other matter whatsoever relating to the Premises, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. 4. EFFECTIVE DATE The "Effective Date" of this MOU shall be the date this MOU has been fully executed. 5. TERM 5.1 The "Term" of this MOU shall begin on the Effective Date and continue for a period of 24 months, unless earlier terminated as provided herein; provided, the City may exercise one (1) two- year extension without further action by the Port if DNR has not completed the transfer of the Premises from the Port's DNR Lease to the City's DNR Lease. It is the intention of the parties to continue this agreement until the lease "transfer" is completed, provided if the MOU terminate prior to that occurring, the parties will negotiate the terms of a MOU to govern the conditions that exist at that time. 5.2 The City may exercise their option to extend by written notice at least 30 days prior to the expiration of this MOU. 5.3 In the event a modification to the City's DNR Lease to encompass Premises within the City lease is completed, defined as executed by DNR and by the City, prior to the expiration of this MOU, the parties agree this MOU would terminate automatically upon such completion. 5.4 Either the City or the Port shall have the right to terminate this MOU with respect to the Premises by delivering 90 days of written notice to the other party. 6. PERMITTED USE 6.1 The City shall have the right to use the Premises for the provision of public access to City public facilities, for City pump station facilities, public parks, and similar allowed uses, and for incidental directly related uses identified within Port's DNR Lease and for no other purpose for the duration of this Agreement (collectively, the "Permitted Use"). Page 1 3 Page 76 of 263 Back to Agenda 6.2 Use of the Premises by City will allow for continued public use of the Port Orchard public plaza, park and its benefits and amenities at no cost to Port. Given the existing City DNR Lease, all uses proposed for the parcel shall be compliant with DNR use requirements. 6.3 Written notification shall be provided by the City to the Port within 90 days prior to any proposed use of the premises for a non -water -dependent use, commercial use, or similar use that results in a higher calculation rate for the Port's DNR lease, annual lease amount for either the Premises or the whole of the Port's DNR lease. 6.4 The City shall ensure that the Port and public shall have use and access to Port Marina Buildings, Marina Access Gates, and to the fuel dock (see below) for uninterrupted operations throughout the construction period for the City Marina Sewage Pump Construction project, subject to any closures that are unavoidable due to conditions outside of the City's control. 6.5 The City shall ensure that the Port shall have use and access for semi fuel truck delivery to the Port Orchard Marina fuel tanks for uninterrupted fuel dock operations throughout the construction period and after completion of the proposed Sewage Pump Station, subsequent Port Orchard Community Center, and proposed Bay Street Elevation improvement projects. 7. COMPENSATION 7.1 The City shall provide the Port of Bremerton annual financial compensation for the proportion share of the annual DNR lease rate for the Port's DNR Lease based upon square footage of 1,524.25 square feet, as identified within Exhibit A . The Port's Lease has a total square footage of 26,051.6 square feet, as identified in Exhibit B. For the duration of this Agreement, the City shall financially compensate the Port each year for the proportional share of the DNR annual lease rate in the proportional amount of 5.85% of the total amount. 7.2 The Port shall provide notification to the City of the annual DNR lease rate amount for the Port's DNR Lease upon payment and acceptance by DNR for each year's payment. Notification and an invoice of the annual DNR proportional share amount shall be provided to the City within 90 days after the annual payment and acceptance to DNR. 7.3 The City shall provide compensation and payment to the Port each year for the proportional share to be provided on or before December 31 of each year, with the initial annual, proportional sub -lease payment due to the Port by December 31, 2023. 7.4 In the event that any City activity, projects, use, or installation results in a non -water - dependent use or commercial use that results in a higher calculation rate for the Port's DNR Lease annual lease amount for either the portion or the whole of the Port's DNR Lease, then Page 14 Page 77 of 263 Back to Agenda the City shall compensate the Port for the differential lease costs for that City directed non - water dependent or commercial use calculation. 7.5 The City shall compensate the Port for the actual cost of any surveys, legal descriptions, or required reports borne by the Port in furtherance of the purposes of this MOU. The City further agrees to compensate the Port for the actual legal costs incurred by the Port in preparing this MOU, not to exceed $5,000. Reimbursement shall be due 30 days after presentation of billing to City. 7.6 In the event that any City activity, projects, construction or use shall disrupt the Port Orchard Marina fuel dock operations or disrupt access for semi fuel truck delivery to the Port Orchard Marina fuel tanks for uninterrupted fuel dock operations throughout the construction period and after completion of the proposed Sewage Pump Station, subsequent Port Orchard Community Center, and proposed Bay Street Elevation improvement projects, then the City will be liable for $ 1,350.00 per day as liquidated damages, payable to the Port for each dayof operations disruption, beginning the 3rd day of disruption until the resumption of fuel dock operations and/or access. Payments to the Port shall be made monthly to the Port each month after a disruption occurs. 8. RESTRICTIONS ON USE; COMPLIANCE WITH LAW 8.1 City shall not use or permit the Premises, or any part thereof, to be used for any purposes other than the purposes set forth in Paragraph 6 of this MOU. City agrees not to make any material improvements or significant alterations to the Premises or the Overlap Area without the prior written consent of Port as well as obtaining any necessary regulatory permits. 8.2 City shall not perform any act which will cause a cancellation of any insurance policy covering the Premises. City, at City's expense, shall comply with all laws, regulations and requirements of any federal, state, and local government authority (including Port and City), now in force or which may hereafter be in force, which shall impose any duty upon Port or City necessitated solely by use, occupation or alteration of the Premises under this MOU, except for any such laws that impose a duty upon Port arising from the condition of the Premises prior to City's use of the Premises. City shall comply, and cause approved agents to comply, with all laws, regulations and requirements of any federal, state, and local government authority (including Port and City), now in force or which may hereafter be in force, in using the Overlap Area for access purposes. 8.3 City shall not sublet described property without written authorization from the Port of Bremerton. 8.4 City shall be responsible for all maintenance, landscape, repairs, janitorial duties, and operations of facilities or improvements located within the area identified within Exhibit A, and areas within the City's DNR Lease. Page 1 5 Page 78 of 263 Back to Agenda 8.5 City shall comply with all provisions identified and required by the Washington State Department of Natural Requirements indicated and identified within the Port's DNR Lease 9. INSURANCE 9.1 The City shall procure and maintain the following insurance policies to apply to the Premises for the duration of the MOU: The City will maintain the following levels of insurance while this agreement is in effect Type of coverage Limits Deductible ® All risk property coverage $250 million goer occurrence $0 ® Liability coverage $15 million per occurrence $0 ® Employee fidelity blanket coverage $1 million per occurrence $-0 ®Comprehensive auto liability $15 million per occurrence $0 ® yber IiabiIity $3 million per Occurrence $0 ® Pollution liability $2 million per Occurrence $0 Additionally, the City will require its Contractor for the Marina Lift Station project to provide the following coverages: a. Primary and Excess Commercial Marine General Liability. Primary and Excess Commercial General Liability insurance with limits no less than ten million dollars ($10,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. General liability coverage must be broad enough to include work on or around sewage pump station and electrical equipment, construction activities, generators, commercial activity, or parks, public event issues arising on the upland portion of the Premises. Coverage shall also include impacts due to flooding, sewage, effluent, or similar spills or public health issues, or impacts from a public sewer pump station activity. b. Primary and Excess Protection and Indemnity. Subject to a minimum coverage of not less than ten million dollars ($10,000,000) combined single limit per accident for Crew, including Jones Act liability, and passenger's bodily injury and property damage. C. Primary and Excess Pollution Legal Liability Insurance. Coverage for sudden and accident damages for facilities, buildings, and infrastructure with limits no less than ten million dollars ($10,000,000). e. All Risk Property. "all risk" property insurance coverage written on a replacement cost basis for the fuel tanks, utilities, and all infrastructure serving the marina buildings, piers, ramps, gangways, and floats. City shall be named a sole Loss Payee. 9.1.1 Additional Insured Status. The foregoing insurance policies (except for the Hull & Machinery) shall name the Port of Bremerton and DNR as additional insureds as to occurrences arising from the activities of City and its employees. City shall provide certificates of insurance and, if requested, copies of any policy to the Port of Bremerton. Page 1 6 Page 79 of 263 Back to Agenda 9.1.2 Other Policy Provisions. Furthermore, the policies of insurance required herein shall: (i) be written as a primary policy; (ii) written on an occurrence basis, (iii) expressly provide that such insurance may not be materially changed, amended, or canceled except upon thirty (30) days prior written notice; and (iv) shall be written by an insurance company licensed to do business in the State of Washington. 9.1.3 DNR Requested Construction Bond. Pursuant to the direction of DNR, the City will procure a construction bond equal to 125% of the Project cost of construction (as per Section 7 of the City's DNR Lease), or will require its contractor to maintain a construction bond in the same amount. 10. RECIPROCAL INDEMNIFICATION To the maximum extent permitted by law, each Party shall defend, indemnify, and hold harmless the other Party and all of its officials, Board Members, employees, principals, and agents from all claims, demands, suits, actions, and liability of any kind, including injuries to persons or damages to property ("Claims"), which arise out of, are connected with, or are due to the negligent acts or omissions of the indemnifying Party, its contractors, and/or employees, agents and representatives in performing its obligations under this Agreement, provided each Party's obligation under this section applies only to the extent of the negligence of that Party or its contractors, employees, agents, or representatives. Each of the Parties agrees that its obligations under this section extend to any claim, demand, cause of action and judgment brought by, or on behalf of, any of its employees or agents. For this purpose, both Parties, by mutual negotiation, hereby waive, regarding the other Party only, any immunity that would otherwise be available against such claims under the industrial insurance provisions of Title 51 RCW. 11. PRESENCE OF HAZARDOUS MATERIALS 11.1 Washington State law requires landlords to disclose to tenants the presence or potential presence of certain Hazardous Materials. Accordingly, the City of Port Orchard is hereby advised that Hazardous Materials (as herein defined) may be present on or near the Premises and the Access Area, including, but not limited to vessel fluids and janitorial products. By execution of this MOU, City of Port Orchard acknowledges that the NOA Laws require that the City of Port Orchard must disclose the information contained in this Section 11 to any subtenant, licensee, transferee, or assignee of City of Port Orchard's interest in this MOU. City of Port Orchard also acknowledges its own obligations pursuant to Washington State Code as well as the penalties that apply for failure to meet such obligations. 11.2 City of Port Orchard shall notify the Port of Bremerton of any Hazardous Materials 12. DEFAULT BY CITY OF PORT ORCHARD The occurrence of any one or more of the following events shall constitute a default by City of Port Orchard: Failure to perform any provision of this MOU if the failure to perform is not cured within ninety (90) days after Port has given written notice to City of Port Orchard, Page 1 7 Page 80 of 263 Back to Agenda provided any prevention, delay or stoppage due to strikes. lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, regulations or controls, enemy or hostile governmental action, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform, shall excuse the performance. If the default cannot reasonably be cured within 90 days, City of Port Orchard shall not be in default of this MOU if City of Port Orchard commences to cure the default within such ninety (90) day period and diligently and in good faith continues to cure the default. 13. NOTICE Any notice given under this MOU shall be effective only if in writing and given by delivering the notice in person or by sending it first-class mail or certified mail with a return receipt requested or by overnight courier return receipt requested, with postage prepaid, at the following addresses, or at such other addresses as either the Port or City of Port Orchard may designate by notice as its new address: Address for Port of Bremerton Telephone No: Fax No: Email: Chief Executive Officer Port of Bremerton 8850 SW State Hwy 3 Bremerton, WA 98312 (360) 674-2381 (360) 674-2807 iimr@portofbremerton.org Address for City of Port Orchard: Mayor City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Telephone No: (360) 876-4407 Fax No: (360) 895-9029 Email: rputaansuu@portorchardwa.gov Any notice hereunder shall be deemed to have been given two (2) days after the date when it is mailed if sent by first-class or certified mail, one day after the date it is mailed, if sent by overnight courier, or upon the date personal delivery is made. For convenience of the parties, copies of notices may also be given by email, facsimile or telephone to the address or numbers set forth above or such other address or number as may be provided from time to time; however, neither the Port nor City of Port Orchard may give official or binding notice by email, telephone or facsimile. Page 1 8 Page 81 of 263 Back to Agenda 14. ENTIRE AGREEMENT This MOU (including attached exhibits, if any) contains the entire understanding between the parties with respect to the subject matter hereof. [REMAINDER OF PAGE LEFT BLANK] Page 1 9 Page 82 of 263 Back to Agenda IN WITNESS WHEREOF, the parties have caused this MOU to be executed as of the date written below. City of Port Orchard Resolution No. 124-22 Port of Bremerton Resolution No. 2022-10 CITY OF PORT ORCHARD, a public municipality PORT OF BREMERTON, a public port district By: Rob Putaansuu Mayor City of Port Orchard Date Signed: By: Jim Rothlin Chief Executive Officer Port of Bremerton Date Signed: l z Page 1 10 Page 83 of 263 Back to Agenda EXHIBIT A 0 Z Z Z Z Z Z Z Z U U 0 0 W W W W W W W W W W W W W W W W z a a o 0 0 0 0 0 0 0 0 0 � � W Z Z Z Z Z Z Z Z O O O O O O O O o W W w � Q Q Q Q � � � � � O O O O O O O O z w w a a � � � � w � p cn cn � � � � � � � � w O O w w w w w w w w � w w w � CO N CO N � CO I` O W � ti 6� � O CO O O 1� � 00 Z_ ti cYj � N � N CO M N � N fD CO I� � N M CO �f'> CO Z N 00 I` � CO � 6� N N M = 00 N � 1` � 1` M 00 OMO O OMO M M M CO CO CO OO O O O O O O O O O O z H Z � N M � � CO I` CO O O� O of Of Of ft� \�\ Ln J J O Q Of mC3 O 0 �\\� JOYW y =ti00 O J �� Q�mU / J d ,�� p Ln 0 z�00O Q O I- Ln 00 1* CD d Q z LiI N a / / Lil Q 2 LLJ :2 Lil � Z aAv-vjiwaaaffj O Q � Jm \l a- Elf D_ w Q � g W 2 J_ 00 M CotQ � — 00 p Z p O� / Q - N p O Q cfl � di z Z W J 1,0 � LC) O Q ri O LLJ = CD z p / M. m Z L i J I V m� Q O H~ Of Q m O Yuj �00 Q�'1OD o=m W LO L L U O J CL W O W z w \\l OopCfl U Z�CND "\ OZ V♦ C)�00 \ �0 Z C) rn p Z N a_ m \ Z Z L, J N / Q O \ W W \ N 00 O ULLJ QY CO / \ \ O� �_Q ZO��L� � o Y m I < C 4- w Z Lil N / I .� Z I I I �A V Q?IVH�?IO I �► M I M 1 (nn(n w �Qo � o �-i / CO ~ a- I J c I / U O � \ I ti I N I I J��00 I / Q N N c fl Z�cfl� � � Qr7�N O � N Lil _ H� Z 0 z I cn uJ 0 M �Lz= OU I / U 0 F- elf O H U) U U U O ~ � z I m U Q w LU w lTi 0:J �iE F-LU o Y-i w � 0- z = l a�°N°� p Q w w O �zoCN ti z -- w O J O � Z ><C14Of O J - - wM -- U � m Cl- z Lei �i z �� - �- zElf CL C5 ul w o \ a 2-7 Page 84 of 263 EXHIBIT B Back to Agenda When recorded, return to: Port of Bremerton 8850 SW State Highway 3 Port Orchard, WA 98367-7487 PORT OF BREMERTON 201109290042 Lease Rec Fee; $ 94.00 09/2912011 10:00 AM page. of 33 Walter Washington, Kitsap Co Auditor I I I I I 1111111111111I 1111111111I I I I I I I 111111 INI I I I I I III I I I I I I I I I I I I 111 IIIII I I I RNIII� AQUATIC LANDS'�EASE Lease No. 22-BO2235 Grantor: Washington State Department o a al Resources Grantee(s): Port of Bremerton Legal Description: Tract 1: That portion a th r ea lying landward of the Mean High Water line, fronting Blo-1— 11 O c ar eet in SM Stevens Town Plat of Sidney, filed in Volume 1, page 1 b is re ds Kitsap County, Washington and Block 11 and Orchard Street lying with and Tidelands of Sidney as shown on that certain reap dated May 92, et a portion of Government Lot 3, Section 26, Township 24 North, ge 1 E s M., more particularly described in Exhibit A; and Tract 2: That ion o t e harb r area lying landward of the Mean High Water line, fronting Bl c s 1 Street and a portion of Orchard Street, Fredrick Street and porti 1 ne et in SM Stevens Town Plat of Sidney, filed in Volume 1, page 1 of PI s re s Ki County, Washington, Block 13 and portion of Sidney Street in First Mont t 1 ey Kitsap County, Washington, recorded in Volume 1, page 10 of Plats, f Ki p County, Washington and Block 12 and 13 , Sidney Street, Fred et portion of Orchard Street, lying within the Shore and Tidelands of Sid a ass orl that certain map dated May 30, 1892, being a portion of Government Lot and 4, ction 26, Township 24 North, Range 1 East W.M., and more particularly esc ib i ibit A. e o legal description is on Sheet 1 of 12 of Exhibit A, Current Survey recorded with i ap County, Auditor's File No. 201103010135, dated March 01, 2011. As s 's Pro erty Tax Parcel or Account Number: Not Applicable ' roperty Tax Parcel for Upland parcel used in conjunction with this Lease: 5 01-1-007-2008 Port remerton Page 1 of 33 Aquatic Lands lease No. 22-BO2235 Wesf End Port Orchard Page 85 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda THIS LEASE is between the STATE OF WASHINGTON, acting through the Department of Natural Resources ("State'), and PORT OF BREMERTON, a government entity ("Port"). BACKGROUND Port desires to lease the aquatic lands commonly known as the west end of the Pert waterfront, which are tidelands and a harbor area located in Kitsap County, ngton, State, and State desires to lease the property to Port pursuant to the terms "Coi 'ons of Lease. State has authority to enter Lease under Chapter 43.12, Chapter 0 and it e 79 F Revised Code of Washington (RCW). In 1984, the Aquatics Land Act (RCW 79.105.420 revised) auth ed a pdV istf"t manage State-owned aquatic lands abutting or used in conjunctio a d ontigu s to uplands owned, leased, or otherwise managed by a port distric , rt pu s plementing rules (WAC 332-30-114) further defined eligibility form Bement un e a Port Management Agreement requiring a port control both the dry upl s and any i to ening tidelands. The State, as a matter of practice, included f lled tideland . h upland c aracteristics as uplands controlled by a port. Along both the Bremerton waterfront (a.k.a. n pair Landing) and along portions of the Port Orchard waterfront, extensive historic filling res to in the first areas with upland characteristics being State-owned. In recognition of the ' t f t uatics Lands Act, the State leased to the Port of Bremerton areas used for upland es a es to Port -owned facilities allowing the abutting State Harbor Areas to l"ligib e o ' c l in the Port Management Agreement No. 22-080016, as amended (PMA). This Lease is one of three area d to e art by the State specifically for PMA eligibility. The area consists of s by c s. It is PMA No. 22-080016, Parcel 1 in Port Orchard. The historic Lease a s e ing, landscaping, utilities, and public access associated with the Port-0 ma es. This Lease amends the historic Lease area to include the strip of filled ti e b ead to Mean High Water. This strip was formerly managed under Aquatic L d eas 02582 between the City of Port Orchard and the State. That Lease has been e e to ex ude the area now being added to this Lease, Aquatic Lands Lease 22-BO 5. THEREF , the P 'es agree as follows: Port remerton Page 2 of 33 Aquatic Lands Lease No. 22-BO2235 We d Port Orchard Page 86 of 263 M 201109290042 09/29/2011 10:00:37 AN Back to Agenda SECTION 1 PROPERTY 1.1 Property Defined. (a) State leases to Port and Port leases from State the real property descri d in Exhibit A together with all the rights of State, if any, to improvements and easements benefiting the Property, but subject to the exceptions d res ' ions set forth in this Lease (collectively the "Property"). (b) This Lease is subject to .all valid interests of third parties not e rec f Kitsap County, or on file in the Office of the Commissione Pu i Lands, Olympia, Washington; rights of the public under the Pu rust D c 'ne o federal navigation servitude; and treaty rights of Indian Tri (c) This Lease does not include a right to harvest, colle a g al resources, including aquatic life or living plants; a er righ ; in ghts; or a right to excavate or withdraw sand, gravel the luable aterials. (d) State reserves the right to grant easem t other s on the Property to others when the easement or other la ses will n ' terfere unreasonably with the Permitted Use. 1.2 Survey and Property Descriptions. (a) Port prepared Exhibit AZe!c!—pt'i escribes the roperty. Port warrants that Exhibit A is a true and accurate sri of the Lease boundaries and the improvements to be constructed o a he existing in the Lease area. Port's obligation to provide a tru cu a Pscription of the Property boundaries is a material term of this L (b) State's acceptances Ex 'b't o t constitute agreement that Port's property description accurate l flee a ual amount of land used by Port. State reserves the right t e a iv djust rent if at any time during the term of the Lease State disa di a cy between Port's property description and the area act}�ally u e by Po . 1.3 Inspection. to a s re esentation regarding the condition of the Property, improvements 1 c t o the o erty, the suitability of the Property for Port's Permitted Use, compliance wit o al 1 and regulations, availability of utility rights, access to the Property, or the is nce o ardous substances on the Property. Port inspected the Property and accepts it "A I ." 2.1 chard SECTION 2 USE se. Port shall use the Property for: nonwater-dependent offices, parking, ces, and public access (the "Permitted Use"), and for no other purpose. Page 3 of 33 Aquatic Lands Lease No. 22-BO2235 Page 87 of 263 M 201109290042 09/29/2011 10:00:37 AN Back to Agenda 2.2 Restrictions on Permitted Use and Operations. The following limitations apply to the Property and adjacent State-owned aquatic Iand. Port's compliance with the following does not limit Port's liability under any other provision of this Lease. (a) Port shall not cause or permit: (1) Damage to natural resources, (2) Waste, or (3) Deposit of material, unless approved by State in writing, e�x 19 the extent expressly permitted in Exhibit B. This prohib' ' cludes sit of fill, rock, earth, ballast, wood waste, refuse, garb e, w to atter, pollutants of any type, or other matter. (4) Except as expressly permitted in Exhibit B,•'.aort sha ruct new bulkheads or place hard bank armoring. (5) Except as expressly permitted in Exhibit B ort sha of in fixed breakwaters. X__—D 2.3 Conformance with Laws. Port shall, at all t' es, keep cu t and comply with all conditions and terms of permits, licenses, certificates gulations, r inances, statutes, and other government rules and regulations regarding Port's us o ccupan f the Property. 2.4 Liens and Encumbrances. Unless ressly authonzedby State in writing, Port shall keep the Property free and clear of liens or en rances arising froze the Permitted Use or Port's occupancy of the Property. O SE 3 RM 3.1 Term Defined. The term t as hirty OM years (the "Term"), beginning on the first day of September 2011 (t me e ent Date"), and ending on the thirty-first day of August 2041 (the "Tertpinatio ate"), �ir%less terminated sooner under the terms of this Lease. 3.2 Renewal of t e s Tl .age does not provide a right of renewal. Port may apply for a new lease, i to h page to grant. Port must apply for a new lease at least one (1) year prior t i Dat . tate will notify Port within ninety (90) days of its intent to approve or deny n Lea 3.3 End er (a) Upon h expiration or termination of this Lease, Port shall remove Improvements in acco ance with Section 7, Improvements, and surrender the Property to State i s e or better condition as on the Commencement Date, reasonable wear Ian ear excepted. (b) finition of Reasonable Wear and Tear. O Reasonable wear and tear is deterioration resulting from the Permitted Use that has occurred without neglect, negligence, carelessness, accident, or )West B emerton Page 4 of 33 Aquatic Lands Lease No. 22-BO2235 Port Orchard Page 88 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda abuse of the Property by Port or any other person on the premises with the permission of Port. (2) Reasonable wear and tear does riot include unauthorized deposit of material prohibited under Paragraph 2.2 regardless of whether the deposit is incidental to or the byproduct of the Permitted Use. (c) If Property is in worse condition, excepting for reasonable wear and tea n the surrender date than on the Commencement Date, the following pr 'sion a ply: (1) State shall provide Port a reasonable time to take all steps n sa t remedy the condition of the Property. State may req . e o to ente ' o a right -of -entry or other use authorization prior to t ort e e 'ng th Property if the Lease has terminated. (2) If Port fails to remedy the condition of the Pro in manner, State may take steps reasonably necessary to o ure. Upon demand by State, Port shall pay all costs of ate's re y, i ding but not limited to the costs of removin is g of terial deposited improperly on the Property, lost enue resul ' the condition of the Property, and administrativ osts associ t with the State's remedy. 3.4 Holdover. (a) If Port remains in possession of the Prope a t Termination Date, the occupancy will not be an ext n 'on or renewal of the Term. The occupancy will be a month -to -month tenancy, t s identical to the terms of this Lease, which either Party may terminate on thirt days' written notice. (1) The monthly rent d t ho o r will be the same rent that would be due if the Lease w r st' ' e ct and all adjustments in rent were made in accorda*c with i s. (2) Payment of m r han t thly rent will not be construed to create a periodic to n r n month -to -month. If Port pays more than the monthly e d S a ovides notice to vacate the property, State shall rand t e amoun o excess payment remaining after the Port ceases unati the r r)ertv. (b) If St ten s oft to yadate the Property and Port fails to do so within the time se i the ti ,Port wi11 be a trespasser and shall owe the State all amounts d 7 300 or other applicable law. SECTION 4 RENT 4.1 Annuil, Rent. �usted as set forth below, Port shall pay to State an annual rent of Thirteen Thousand Three Hundred Twenty-one and 04/100 Dollars ($13,321.04) related to th nonwater-dependent use. The annual rent, as it currently exists or as adjusted or modified (the "Annual Rent"), is due and payable in full on or before the Commencement Date and on or -hard Page 5 of 33 Aquatic Lands Lease No. 22-BO2235 Page 89 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda before the same date of each year thereafter. Any payment not paid by State's close of business on the date due is past due. 4.2 Payment Place. Port shall make payment to Financial Management Division, 1 I I 1 Washington St SE, MS 47041, Olympia, WA 98504-7041. \ 4.3 Adjustment Based on Use. Annual Rent is based on Port's Permitted U e Ate,\tl Property, as described in Section 2 above. If Port's Permitted Use changes, th t shall be adjusted as appropriate for the changed use. 4.4 Rent Adjustment Procedures. (a) Notice of Rent Adjustment. State shall provide notice of a ' s s o the Annual Rent allowed under Paragraph 4.5(b) to Po 1 g ter than ninety (90) days after the anniversary date of the e se. (b) Procedures on Failure to make Timely Ad' en the St t fails to provide the notice required in Paragraph 4.4(a) e all n c the adjustment amount for the year in which State fai e to provid tice. Upon providing notice of adjustment, State may adjus d prospecti ly bill Annual Rent as if missed or waived adjustments had bee J lenient d t the proper interval. This includes the implementation of any infla ' n ent. 4.5 Rent Adjustments for Nonwater-D a ent Uses. (a) Inflation Adjustment. Except in s ears in which State revalues the rent under Paragraph 4.5(b) below, St e s I a 'u nonwater-dependent rent annually on the Commencement Date dj s t is ased on the percentage rate of change in the previous c Idar a on er Price Index published by the Bureau of Labor Statistics of ite a Department of Commerce, for the Seattle- Tacoma-Bremerto 0 0 'da etropolitan Statistical Area, All Urban Consumers, all' 98 — 100. If publication of the Consumer Price Index is disco tinued tate sh 1 use a reliable governmental or other nonpartisan publipt' n_eva 'ng th ' formation used in determining the Consumer Price (b) a 4`5n o t. 1 en the first four-year period of the Term, and at the end of each subs u t four-year period, State shall revalue the nonwater-dependent ual ent to reflect the then -current fair market rent. 2 1 t e and Port cannot reach agreement on the fair market rental value, e Parties shall submit the valuation to a review board of appraisers. The oard must consist of three members, one selected by and at the cost of ort; a second member selected by and at the cost of State; and a third member selected by the other two members with the cost shared equally by State and Port. The decision of the majority of the board binds the Parties. Until the Parties agree to, or the review board establishes, the new \rent, Port shall pay rent in the same amount established for the preceding \ year. If the board determines additional rent is required, Port shall pay the Port o remerton Page 6 of 33 Aquatic Lands Lease No. 22-BO2235 WesfEAd Port Orchard Page 90 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda additional rent within ten (10) days of the board's decision. If the board determines a refund is required, State shall pay the refund within ten (10) days of the board's decision. SECTION 5 OTHER EXPENSES 5.1 Utilities. Port shall pay all fees charged for utilities required or needed Use. 5.2 Taxes and Assessments. Port shall pay all taxes (including leasooW excis axes); assessments, and other governmental charges applicable or attributabl o t , Port's leasehold interest, the improvements, or Port's use and enjoymentf�tlre�r e 5.3 Right to Contest. If in good faith, Port may con y t x r asses ent at its sole cost and expense. At the request of State, Port shall furnis r so able p tec x in the farm of a bond or other security, satisfactory to State, against 149 or Iiabilityr sulting from such contest. 5.4 Proof of Payment. If required by State, Port furnish o tate receipts or other appropriate evidence establishing the payment of amoun t e e requires Port to pay. 5.5 Failure to Pay. If Port fails to pay s due under this Lease, State may pay the amount due, and recover its cost in accordance wi ction 6. SECTION 6 L� [`E P N D OTHER CHARGES 6.1 Failure to Pay Rent. Fail t re . a default by the Port. State may seek remedies under Section 14 as well as lat�es , i crest as provided in this Section 6. 6.2 Late Charge to o not eive full rent payment within ten (10) days of the date due, Port shall pay o t e qual to four percent (4%) of the unpaid amount or Fifty Dollars ($50), wi~ veer is t to defray the overhead expenses of State incident to the delay. n 6.3 Interest P`e�nW"or Past Due Rent and Other Sums Owed. (a) P rt all` as interest on the past due rent at the rate of one percent (1%) per Mont u til paid, in addition to paying the late charges determined under Paragr p 6.2. Rent not paid by the close of business on the due date will begin a interest the day after the due date. I ate pays or advances any amounts for or on behalf of Port, Port shall r' nburse State for the amount paid or advanced and shall pay interest on that amount at the rate of one percent (1%) per month from the date State notifies Port of the payment or advance. This includes, but is not limited to, State's payment -hard Page 7 of 33 Aquatic Lands Lease No. 22-BO2235 Page 91 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda of taxes of any kind, assessments, insurance premiums, costs of removal and disposal of materials or Improvements under any provision of this Lease, or other amounts not paid when due. 6.4 Referral to Collection Agency and Collection Agency Fees. If State does t receive full payment within thirty (30) days of the due date, State may refer the unpaid amo t o a collection agency as provided by RCW 19.16.500 or other applicable law. Upo eferr , ort shall pay collection agency fees in addition to the unpaid amount. 6.5 No Accord and Satisfaction. If Port pays, or State otherwise rec i es, ount 1$s$ than the full amount then due, State may apply such payment as it elect"to ma ccep payment in any amount without prejudice to State's right to recover the baran rent or pursue any other right or remedy. No endorsement or statement o h k, ayment, or any letter accompanying any check or payment constitutes accor d sati a tion. 6.6 No Counterclaim, Setoff, or Abatement of a cept ex r sly set forth elsewhere in this Lease, Port shall pay rent and all of sums pay e by Port without the requirement that State provide prior notice or deman . ort's paym t is not subject to counterclaim, setoff, deduction, defense or abatemen SECTION 7 ROVEMENTS 7.1 Improvements Defined. (a) "Improvements," consist w 79.105 through 79.145, are additions within, upon, or �ched # e an . his includes, but is not limited to, fill, structures, bulkhead cks, i , and other fixtures. (b) "Personal Propert " n Ite at can be removed from the Property without (1) injury to th rty o rovements or (2) diminishing the value or utility of the P opert o Impro ents. (c) "Stau d ove ts" are Improvements made or owned by State. State- ( e o in s ludes any construction, alteration, or addition to State - to is made by Port. (d) Imp ements" are Improvements authorized by State and (1) made b P or ( a uired by Port from the prior tenant. (e) " a zed provements" are Improvements made on the Property without at ' p r onsent or Improvements made by Port that do not conform to plans sub tt d to and approved by the State. 7.2 isIh �Irr ovements. On the Commencement Date, the following Improvements are loc ed —n t Property: Boardwalk, Bulkhead, Buildings. The Improvements are Port -Owned. -hard Page 8 of 33 Aquatic Lands Lease No. 22-BO2235 Page 92 of 263 3 11 201109290042 09/29/2011 10:00:37 AN Back to Agenda 7.3 Construction, Major Repair, Modification, and Demolition. (a) This Paragraph 7.3 governs construction, alteration, replacement, major repair, modification, demolition, and deconstruction of Improvements ("Work'). Section 11 governs routine maintenance and minor repair. (b) All Work must conform to requirements under Paragraph 7.4. Paragr 11.3, which applies to routine maintenance and minor repair, also applies to Work under this Paragraph 7.3. (c) Except in an emergency, Port shall not conduct Work, without ' written consent, as follows: (1) State may deny consent if State determines that de is i best interests of the State or if proposed Work does n co ply w t Para aph 7.4 and 11.3. State may impose additional condition e y intended to protect and preserve the Property. If Wor - r o f Improvements at End of Term, State may ve rem l o e or all Improvements. (2) Except in an emergency, Port s a u it to a sand specifications describing the proposed Work a least sixty ) days before submitting permit applications to regulat authorities less Port and State otherwise agree to coordinate p .t applic ins. At a minimum, or if no permits are necessary, Port shall and specifications at least ninety (90) days bef ammencein n of Work. (3) State waives the requi t for consent if State does not notify Port of its grant or denial of consent t sixty (60) days of submittal. (d) Port shall notify State of e er e within five (5) business days of the start of such Work. Upo at- e es , Port shall provide State with plans and specifications or ss uilt o rg Work. (e) Port shall not Comm or a • o - Work until Port has: (1) Obtained a r C payment bond in an amount equal to zero percent of t e imated cost of construction. Port shall maintain t e per ance payment bond until Port pays in full the costs of the r , i ding 1 laborers and material persons. (2) O n a e ' ed permits. (f) B co ple ' Work, Port shall remove all debris and restore the Property, to r sa ndition. If Work is intended for removal of Improvements at E o Term, shall restore the Property in accordance with Paragraph 3.3, En o (g) /UP"o ing work, Port shall promptly provide State with as -built plans and (h) States I not charge rent for authorized Improvements installed by Port during t of this Lease, but State may charge rent for such Improvements when an i Port or successor obtains a subsequent use authorization for the Property a State has waived the requirement for Improvements to be removed as provided in Paragraph 7.5. Porto B ernerton Page 9 of 33 Aquatic Lands Lease No. 22-BO2235 Wes d Port Orchard Page 93 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda 7.4 Standards for Work. Port shall comply with State's Standards for Improvements current at the time Port submits plans and specifications for State's approval in accordance with Paragraph 7.3(b). 7.5 Port -Owned Improvements at End of Lease. (a) Disposition. (1) Port shall remove Port -Owned Improvements in accordance wit Paragraph 7.3 upon the expiration, termination, or canc io Lease unless State waives the requirement for remov (2) Port -Owned Improvements remaining on the Prope on e xpirati , termination or cancellation date shall become St e- wned rove nts without payment by State, unless State elects othe s St may refuse or waive ownership. If RCW 79.125.300 0 4 y at the time this Lease expires, Port could be entitled t aymen b th a tenant for Port -Owned Improvements. (3) If Port -Owned Improvements r the o after the expiration, termination, or cancellation d without S 's consent, State may remove all Improvements and P rt shall pa S ate's costs. (b) Conditions Under Which State May t e Remov f Port -Owned Improvements. (1) State may waive re al of some or a ort-Owned Improvements whenever State dete that it is in the best interests of the State and regardless of whether Po e- ases the Property. (2) If Port re -leases th ro t may waive requirement to remove Port -Owned Imprk em to also may consent to Port's continued ownershi�f Po - d ovements. (3) If Port does e-le s t roperty, State may waive requirement to remove Po -O vements upon consideration of a timely request from Po olio (�} rt mus n ti y State at least one (1) year before the Termination e of i s equest to leave Port -Owned Improvements. (i' t w in ninety (90) days of receiving Port's notification, will fy Port whether State consents to some or all Port -Owned ovements remaining. State has no obligation to grant consent. (iii) tate's failure to respond to Port's request to leave Improvements ithin ninety (90) days is a denial of the request. (c) O ions if State Waives Removal. (1) ort shall not remove Improvements if State waives the requirement for r moval of some or all Port -Owned improvements. h Id 'th th1[' t' 1 ort shall mamtam suc m provements zn accor ance wi �s ease un the expiration, termination, or cancellation date. Port is liable to State for cost of repair if Port causes or allows damage to Improvements State has designated to remain. Port remerton Page 10 of 33 Aquatic Lands Lease No. 22-502235 We d Port Orchard Page 94 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda 7.6 Disposition of Unauthorized Improvements. (a) Unauthorized Improvements belong to State, unless State elects otherwise. (b) State may either: (1) Consent to Port ownership of the Improvements, or (2) Charge rent for use of the Improvements from the time of inst tion or construction and (i) Require Port to remove the Improvements in acco nce 1 Paragraph 7.3, in which case Port shall pay rent o Improvements until removal, (ii) Consent to Improvements remaining and Po shal rent fo use of the Improvements, or 7.7 8.1 (iii) Remove Improvements and Port shall wwjfior loaf f removal and disposal, in which case Port sha n o�sf the Improvements until removal and di p sal. Disposition of Personal Property. (a) Port retains ownership of Personal Pr,rty unless 1o6* and State agree otherwise in writing. (b) Port shall remove Personal Property fr Port is liable for damage to the Property removal of Personal Prot)ertv:� (c) State may sell or dispose of Termination Date. Defin (a) " z ous Stkhs�ance" means any substance that now or in the future becomes reguld defified under any federal, state, or local statute, ordinance, rule, e on, ther law relating to human health, environmental protection, cont i ation, pollution, or cleanup. (b) "Relea a or threatened release of Hazardous Substance" means a release or It d release as defined under any law described in Paragraph 8.1(a). " ost care" means such a degree of care as would be exercised by a very c ful, prudent, and competent person under the same or similar circumstances; the standard of care applicable under the Washington State Model Toxics Control Act ("MTCA"), Chapter 70.105 RCW, as amended. Port o B emerton Page 11 of 33 Aquatic Lands Lease No. 22-BO2235 West Port Orchard by the Termination Date. Lents resulting from Property left on the Property after the (1) If State conducts a o ers a Property, State shall apply proceeds first to the State's i a e costs in conducting the sale, second to payment olio t h e y be due from the Port to the State. State shall pay the r ind r, 'f , to the Port. (2) If State dispose er Property, Port shall pay for the cost of removal snos 0 AL LIABILITYIRISK ALLOCATION Page 95 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda (d) "Port and affiliates" when used in this Section 8 means Port or Port's subtenants, contractors, agents, employees, guests, invitees, licensees, affiliates, or any person on the Property with the Port's permission. (e) "Liabilities" as used in this Section 8 means any claims, demands, proceedings, lawsuits, damages, costs, expenses, fees (including attorneys' fees anc� disbursements), penalties, or judgments. \\ 8.2 General Conditions. v (a) Port's obligations under this Section 8 extend to the area in, er, or e (1) The Property and (2) Adjacent State-owned aquatic lands if affected by a lease o azar s Substances that, occurs as a result of the Permitted (b) Standard of Care. (1) Port shall exercise the utmost care with res et to do bstances. (2) Port shall exercise utmost care for re ble ac s r omissions of third parties with respect to H ou Subst ce , d the foreseeable consequences of those acts or issions, t extent required to establish a viable, third -party defense u r the law. 8.3 Current Conditions and Duty to Investigate. (a) State makes no representati bout:above e condi ion of the Property. Hazardous Substances may exist in, on, u the Property. (b) This Lease does not impose a dut o tate to conduct investigations or supply information to Port about a us tances. (c) Port is responsible for co ct' a propriate inquiry and gathering sufficient information abou i�e ex i t , sc , and location of Hazardous Substances on or near the Property e ssa o rt to meet Port's obligations under this Lease and utilize the Pro o itted Use. 8.4 Use of Hazard us Su tances. (a) Port f Iia s all use, store, generate, process, transport, handle, release, or d s osp� ou ubstances, except in accordance with all applicable (b) uncke, or allow others to undertake by Port's permission, ac ui cent , o ailure to act, activities that result in a release or threatened re as o aza dous Substances. (c) us ofdous Substances related to Port's use or occupancy of the Property resu i violation of law: (1) ort shall submit to State any plans for remedying the violations, and ort shall implement any remedial measures to restore the Property or natural resources that State may require in addition to remedial measures required by regulatory authorities. Port shall comply with the provisions of Chapter 90.56 RCW Oil and Hazardous Substance Spill Prevention and Response Act. Port shall develop, update as necessary and operate in accordance with a plan of operations consistent with the Port o remerton Page I2 of 33 Aquatic Lands Lease No. 22-BO2235 We d Port Orchard Page 96 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda requirements of Chapter 90.56 RCW. Failure to comply with the requirements of Chapter 90.56 is a default under Section 14. (e) At a minimum, Port and affiliates shall observe the following Hazardous Substances operational standards. If the Washington Department of Ecology, U.S. Environmental Protection Agency or other regulatory agency establis different standards applicable to Port's activities under the Permitted Use, Port I meet the standard that provides greater protection to the environment. (1) Port shall not allow work on overwater structures or vess t protective measures to prevent discharge of toxins to ter, in g: (i) Port shall not cause or allow underwater hul , crapi d oth r underwater removal of paints. (ii) Port shall not cause or allow underwater refin' k from boats or temporary floats unless pe n ' trial National Pollution Discharge Elimi ion Sy e S) permit. (iii) Port shall not cause or a o a ve th a r ' e boat repairs or refinishing in -water ex e t if limite decks and superstructures and less than 25 perce t f a boat is r p ired or refinished in -water per year. (iv) Port shall use and require e u tarps and other dust, drip and spill cont ent measures w en repairing or refinishing boats in water. (2) Port shall not store or allo o ers to store fuel tanks, petroleum products, hydraulic fluid, mac ine co , lubricants and chemicals not in use in locations above th at u ce. (3) Port shall "pect 1 e 'p a using petroleum products, hydraulic fluids, machi coo is emicals, or other toxic or deleterious materials on a ly s and immediately make all repairs necessary to stop le g Po s 11 submit to State an annual report documenting insnecti and r n�ir. (4) ha intai supply of oil spill containment materials adequate to co s 1 o the largest vessel in use on the Property. (5 o S. t use or allow use of a pressure washer at any location above ter s ce to clean any item that uses petroleum products. ( Port a .ncorporate best management practices to prevent the release of c mica ontaminants, wastewater, garbage and other pollutants, as sp 1 d in Resource Manual for Pollution Prevention in Marinas blished by the Washington Department of Ecology, publication number 9 -11, available at http://www.ecy.wa. _og v/biblio/981 l .html. If the epartment of Ecology or other regulatory agency establishes different standards, Port shall meet the most protective standard. Port ofMernerton Page 13 of 33 Aquatic Lands Lease No. 22-BO2235 West tnd Port Orchard Page 97 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda 8.5 Management of Contamination, if any. (a) Port and affiliates shall not undertake activities that: (1) Damage or interfere with the operation of remedial or restoration activities, if any; (2) Result in human or environmental exposure to contaminated s iments, if any; (3) Result in the mechanical or chemical disturbance of on-si habi mitigation, if any. (b) If requested, Port shall allow reasonable access to: (1) Employees and authorized agents of the Environm al Pr e tion Agency, the Washington State Department of Ec o , healt ep ent, or other similar environmental agencies; and (2) Potentially liable or responsible parties who an order or consent decree that requires access to the perty. o in gotiate an access agreement with such partie Po ay not a easonably withhold such agreement. 8.6 Notification and Reporting. (a) Port shall immediately notify State if becomes are of any of the following: (1) A release or threatened release o Substances; (2) Any new discovery new informa ion about a problem or liability related to, or derived , the presence of Hazardous Substances; (3) Any lien or action arising o Hazardous Substances; (4) Any actual or alIe i do o y federal, state, or local statute, ordinance, rule, r g lat' of er law pertaining to Hazardous Substanc s; (5) Any notifica 'o fro t e Environmental Protection Agency (EPA) or the Washin n t ent of Ecology (DOE) that remediation or removal and s ubstances is or may be required at the Property. (b) Port's ty to ort un r aragraph 8.6(a) extends to lands described in Para 2( d to other property used by Port in conjunction with the Pro e y r e o ardous Substances on the other property could affect (c) videSjt�te with copies of all documents Port submits to any federal, st a loca orities concerning environmental impacts or proposals relative to e r erty. ocuments subject to this requirement include, but are not x t , a lications, reports, studies, or audits for National Pollution Disc a and Elimination System Permits; Army Corps of Engineers permits; State draulic Project Approvals (HPA); State Water Quality certification; tial Development permit; and any reporting necessary for the existence, loca ion, and storage of Hazardous Substances on the Property. Port o rernerton Page 14 of 33 Aquatic Lands Lease No. 22-BO2235 We d Port Orchard Page 98 of 263 201109290042 09/29/2011 10-.00-.37 AN Back to Agenda 8.7 Indemnification. (a) To the extent allowed by law, Port shall fully indemnify, defend, and hold State harmless from and against Liabilities that arise out of, or relate to: (1) The use, storage, generation, processing, transportation, handling, or disposal of any Hazardous Substance by Port and affiliates oc ng whenever Port occupies or has occupied the Property; (2) The release or threatened release of any Hazardous Subst ce re u ing from any act or omission of Port and affiliates occurring ne rt occupies or has occupied the Property. (b) To the extent allowed by law, Port shall fully indemnify, d f nd, old St t harmless for Liabilities that arise out of or relate to Port' r ach of b igati s under Paragraph 8.5. (c) Port has no duty to indemnify State for acts or omi 1 1 ies unless and only if an administrative or legal proceeding ' ing fro re s or threatened release of Hazardous Substanc ds r olds Port failed to exercise care as described in Paragrap (2). In uc c e, Port shall fully indemnify, defend, and hold State h ess froze a gainst Liabilities arising from the acts or omissions of third p i s in relatio t the release or threatened release of Hazardous Substances. Thi i ludes Li ities arising before the finding or holding in the proceeding. 8.8 Reservation of Rights. (a) For Liabilities not covered by the ' nification provisions of Paragraph 8.7, the Parties expressly reserve o of i any rights, claims, immunities, causes of action, or defenses rel ' g t dous Substances that either Party may have against the other 1i ler la (b) The Parties expressl ery a ts, claims, immunities, and defenses either Party may have a s 1 p s. Nothing in this Section 8 benefits or creates rights for third (c) The all ation f risks, 1 b1 ities, and responsibilities set forth in this Section 8 do no e e e't Part rom or affect the liability of either Party for Hazardous Sub t nc ac ' ns by regulatory agencies. 8.9 Cleanu . (a) I o 's act, sion, or breach of obligation under Paragraph 8.4 results in a re a o aza ous Substances that exceeds the threshold limits of any \ap b latory standard, Port shall, at Port's sole expense, promptly take all ctio s ecessary or advisable to clean up the Hazardous Substances in accord ce with applicable law. y undertake a cleanup of the Property pursuant to the Washington State epartment of Ecology's Voluntary Cleanup Program, provided that Port c operates with the Department of Natural Resources in development of cleanup plans. Port shall not proceed with Voluntary Cleanup without the Department of \Natural Resources approval of final plans. Nothing in the operation of this \ provision is an agreement by the Department of Natural Resources that the Port o remerton Page 15 of 33 Aquatic Lands Lease No. 22-Bo2235 We d Port Orchard Page 99 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda Voluntary Cleanup complies with any laws or with the provisions of this Lease. Port's completion of a Voluntary Cleanup is not a release from or waiver of any obligation for Hazardous Substances under this Lease. 8.10 Sampling by State, Reimbursement, and Split Samples. (a) State may enter the Property and conduct sampling, tests, audits, sury or investigations ("Tests") of the Property at any time to determine a exi a cc, scope, or effects of Hazardous Substances. (b) If such Tests, along with any other information, demonstrate ch o obligations regarding Hazardous Substances under this Le s , Po 11 pro tl; reimburse State for all costs associated with the Tests, p vi ed Stat ave thirty (30) calendar days advance notice in nonemergencies o ably practical notice in emergencies. (c) In nonemergencies, Port is entitled to obtain split ples o est s les, provided Port gives State written notice re in s it sam 1 s at least ten (t0) calendar days before State conducts T t . on de rt shall promptly reimburse State for additional cost, if y, of split Ales. (d) If either Party conducts Tests on the r erty, the c n ucting Party shall provide the other with validated final data and u ity assur a/quality control/chain of custody information about the Tests with' s' 6 calendar days of a written request by the other party, u s Tests are p of a submittal under Paragraph 8.6(c) in which case Port shal u it data and information to State without written request by State. Neither is obligated to provide any analytical summaries or the work bro d4c ex 8.11 Closeout Assessment. V (a) State may require co d c loseout Environmental Assessment ("Closeout Assess n ' .o ermination of the Lease. (b) The purpose of oseo sessment is to determine the existence, scope, or effects �Haz ous Su ces on the Property and associated natural resources. he t A s sme ay include sediment sampling. (c) No at r e eighty (180) calendar days prior to the Termination r ithi ty (90) days of valid notice to early termination, State shall r v' it tten notice that State requires a Closeout Assessment. (d) th' sixt days of State's notice that Closeout Assessment is required and be or en ing assessment activities, Port shall submit a proposed plan for c n cti e Closeout Assessment in writing for State's approval. (e) If St a ails to approve or disapprove of the plan in writing within sixty (60) days of its r eipt, State waives requirement for approval. 11 be responsible for all costs required to complete planning, sampling, ana yzing, and reporting associated with the Closeout Assessment. (g) the initial results of the Closeout Assessment disclose that Hazardous Substances may have migrated to other property, State may require additional Closeout Assessment work to determine the existence, scope, and effect of Port o, 0remerton Page 16 of 33 Aquatic Lands Lease No. 22-BO2235 Port Orchard Page 100 of 263 201109290042 09/29/2011 10-.00-.37 AM Back to Agenda Hazardous Substances on adjacent property, any other property subject to use by Port in conjunction with its use of the Property, or on associated natural resources. (h) Port shall submit Closeout Assessment to State upon completion. (i) As required by law, Port shall report to the appropriate regulatory authorities if the Closeout Assessment discloses a release or threatened release of ff4zardous Substances. SECTION 9 ASSIGNMENT AND S 9.1 State Consent Required. Port shall not convey, transfer, or en er any rt of Pdrt's interest in this Lease or the Property without State's prior written consent, h' e shall not unreasonably condition or withhold. (a) In determining whether to consent, State may con i er, am oth i ms, the proposed transferee's financial condiCtate es r utatio d experience, the nature of the proposed transferee's buthe cu value of the Property, and such other factors as mbl ar upon the suitability of the transferee as a tenant of the Property.y re s its consent to any conveyance, transfer, or encumbrances t n a subdivision of the leasehold. Port shall submit informaty proposed transferee to State at least thirty (30) days (b) State reserves the right to co: (1) Changes in the terms limited to, the Ann (2) The agreement of Port or the Each permitted tre the payment of�le) State'. 9.2 Rent following an transfer. ; to the date o e proposed transfer. 'i its consent upon: Qnd tions of this Lease, including, but not Port. ee to conduct Tests for Hazardous other property owned or occupied by ie all obligations under this Lease, including sublet, or transfer shall release, discharge, or 9.1 does not constitute a waiver of any violation of any term of this Lease. g%Assignment. The acceptance by State of the payment of rent transfer does not constitute consent to any assignment or 9.3 Ter of S ases. (a) Port s a I submit the terms of all subleases to State for approval. 11 incorporate the following requirements in all subleases: The sublease must be consistent with and subject to all the terms and conditions of this Lease; The sublease must provide that this Lease controls if the terms of the sublease conflict with the terms of this Lease; Port f Prernerton Page 17 of 33 Aquatic Lands Lease No. 22-BO2235 Wesf EM Port Orchard Page 101 of 263 W 201109290042 09/29/2011 10:00:37 AM Back to Agenda (3) The term of the sublease (including any period of time covered by a renewal option) must end before the Termination Date of the initial Term or any renewal term; (4) The sublease must terminate if this Lease terminates for any reason; (5) The subtenant must receive and acknowledge receipt of a cop f this Lease; (6) The sublease must prohibit the prepayment to Port by the ubten of more than the annual rent; (7) The sublease must identify the rental amount subten pay o ; (8) The sublease must provide that there is no privity o ontr t etwee t e subtenant and State; (9) The sublease must require removal of the subtenant ents and Personal Property upon termination of the s e; (10) The subtenant's permitted use must be wit i the sc of ermitted Use; and (11) The sublease must require the rin, ttoint ligations of Port under Section 10, Indemni lea Financi4" ecurity, and Insurance. 9.4 Short -Term Subleases of Moorage Slips. Shp -term su a sing of moorage slips for a term of less than one (1) year does not require State's to s t or approval pursuant to Paragraphs 9.1 or 9.3. Port shall conform rage sublease agreements to the sublease requirements in Paragraph 9.3. SECTION 10 INDEMNIT AE SECURITY, INSURANCE 10.1 Indemnity. Each Party sha U o� own officers, employees, and e s 10.2 Insurance Ter s. (a) Insur Requ' i for the actions and inactions of itself and its within the scope of their authority. (1) A n�er , Port shall procure and maintain during the Term of Lee, he insurance coverages and limits described in this Paragraph d i agraph 10.3, Insurance Types and Limits. State may term' a this Lease if Port fails to maintain required insurance. (2yless State agrees to an exception, Port shall provide insurance issued by n ance company or companies admitted to do business in the State f ashington and have a rating of A- or better by the most recently p �lished edition of Best's Reports. Port may submit a request to the risk nager for the Department of Natural Resources to approve an exception to this requirement. If an insurer is not admitted, the insurance policies and procedures for issuing the insurance policies shall comply with Chapter 48.15 RCW and 284-15 WAC. (3) All general liability, excess, umbrella, property, builder's risk, and pollution legal liability insurance policies must name the State of Port o remerton Page 18 of 33 Aquatic Lands Lease No. 22-BO2235 Wes d Port Orchard Page 102 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda Washington, the Department of Natural Resources, its elected and appointed officials, agents, and employees as an additional insured. (4) All insurance provided in compliance with this Lease must be primary as to any other insurance or sell -insurance programs afforded to or maintained by State. n (b) Waiver. (1) Port waives all rights against State for recovery of dama to insurance maintained pursuant to this Lease covers these (2) Except as prohibited by law, Port waives all rights ofsWxogal State for recovery of damages to the extent that the re c e insurance maintained pursuant to this Lease. (c) Proof of Insurance. (1) Port shall provide State with a certificate(s) p duly authorized representative of each ins e , show insurance requirements specified i Le s and, i policies to State. (2) The certificate(s) of insurance st referen edditic Lease number. 1 by dbya .ice with copies of insureds and the (3) Receipt of such certificates or policies by S t does not constitute approval by State of the terms o c c' s. (d) State must receive written n e before cane anon or non -renewal of any insurance required by this Lea , follows: (1) Insurers subject to RC W (admitted and regulated by the Insurance Commissioner): If anc ati t due to non-payment of premium, provide State ten d v ce notice of cancellation; otherwise, provide S" fort - tv 45 sadvance notice of cancellation or non - renewal. (2) Insurers sub'ec C .15 (surplus lines): If cancellation is due to non -pa f pr t , provide State ten (10) days' advance notice of ancell i n; oth ise, provide State thirty (30) days' advance notice of cell 'o or no enewal. (e) Adj s e i anc Coverage. ( t to pose changes in the limits of liability for all types of u ce tate deems necessary. ( Port a secure new or modified insurance coverage within thirty (30) s aft State requires changes in the limits of liability. (f) fa' procure and maintain the insurance described above within fifteen (15) after Port receives a notice to comply from State, State may either: (1) eem the failure an Event of Default under Section 14, or rocure and maintain comparable substitute insurance and pay the premiums. Upon demand, Port shall pay to State the full amount paid by State, together with interest at the rate provided in Paragraph 6.2 from the date of State's notice of the expenditure until Port's repayment. Porto B emerton Page 19 of 33 Aquatic Lands Lease No. 22-BO2235 West Port Orchard Page 103 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda (g) General Terms. (1) State does not represent that coverage and limits required under this Lease are adequate to protect Port. (2) Coverage and limits do not limit Port's liability for indemnification and reimbursements granted to State under this Lease. (3) The Parties shall use any insurance proceeds payable by reaso o damage or destruction to property first to restore the real property overe this Lease, then to pay the cost of the reconstruction, then to t any sums in arrears, and then to Port. 10.3 Insurance Types and Limits. (a) General Liability Insurance. (1) Port shall maintain commercial general liab' u n GL) or marine general liability (MGL) covering el i s for ily i 'u , personal injury, or property damage arising e P o erty an r arising out of Port's use, occupation, or contr Prop if necessary, commercial umbrella insuranc ith a it not less than One Million Dollars ($1,000.000) per each currence. I s Ph CGL or MGL insurance contains aggregate limits, the g n al aggre limit must be at least twice the "each occurrence" limit. GL insurance must have products -completed ations aggrega a imit of at least two times the "each occurrence" lim (2) CGL insurance must be w ' on insurance Services Office (ISO) Occurrence Form C 0 1 ( a bstitute form providing equivalent coverage). All in c u co er liability arising out of premises, operation ' ep a on tors,.products completed operations, personal inj d a v i g injury, and liability assumed under an insured contrac n u ' he tort liability of another party assumed in a business�ct) ntain separation of insured (cross -liability) Z rto B emerton est Port Orchard have no exclusions for non -owned watercraft. f Waa*ngton Workers' Compensation. rt shall comply with all State of Washington workers' c rnpensation statutes and regulations. Port shall provide workers' compensation coverage for all employees of Port. Coverage must include bodily injury (including death) by accident or disease, which arises out of or in connection with Port's use, occupation, and control of the Property. If Port fails to comply with all State of Washington workers' compensation statutes and regulations and State incurs fines or is required by law to provide benefits to or obtain coverage for such employees, Port shall indemnify State. Indemnity shall include all fines; payment of benefits to Port, employees, or their heirs or Page 20 of 33 Aquatic Lands Lease No. 22-BO2235 Page 104 of 263 201109290042 09/29/2011 10:00:37 AM Back to Agenda 10.4 legal representatives; and the cost of effecting coverage on behalf of such employees. (2) Longshore and Harbor Workers' and Jones Acts. Longshore and Harbor Workers' Act (33 U.S.C. Section 901 et seq.) and/or the Jones Act (46 U.S.C. Section 688) may require Port to provide insurance co' o aqMrcd e in some circumstances. Port shall ascertain if such insurance is r and, if required, shall maintain insurance in compliance law. ort is responsible for all civil and criminal liability arising from e maintain such coverage. (c) Employers' Liability Insurance. Port shall procure emplo ' lia i insur e, and, if necessary, commercial umbrella liability insuranc wi limit of less than One Million Dollars ($1,000,000) each accident for bo i cident or One Million Dollars ($1,000,000) each employee f u disease. (d) Property Insurance. (1) Port shall buy and maintain prop e ur c cove all real property and fixtures, equipment, Port p vements et rtrtents {regardless of whether owned by Port or Stat) Such ins a ce must be written on an all risks basis and, at minimum, c r the perils i ured under ISO Special Causes of Loss Form. CP 10 30, cover t e 11 replacement cost of the property insured. Such insurance a ommercially reasonable deductibles. Any co' ance requirement in the policy must be waived. The policy must inclu a as an insured and a loss payee. (2) In the event of any loss, d a or casualty which is covered by one or more of the types o i r ce e ribed above, the Parties to this Lease shall proceed coo a ati e t et le the loss and collect the proceeds of such insur r#i e, w i h ate fl hold in trust, including interest earned by State on such eed , e according to the terms of this Lease. The Parties shal e . s a roceeds in accordance with Paragrap (g) (3) en s f icient n s are available, using insurance proceeds described v 't ies all continue with reasonable diligence to prepare I s tions for, and thereafter carry out, all work necessary Reps and restore damaged building(s) and/or Improvements to t ir former condition, or place and restore damaged building(s) and/or Improvements with a new building(s) and/or Improvements on the Property of a quality and usefulness at least equivalent to or more suitable than, damaged building(s) and/or Improvements. (a) %its own expense, Port shall procure and maintain during the Term of this Lease a corporate security bond or provide other financial security that State, at its option, may approve ("Security"). Port shall provide Security in an amount equal to Zero Dollars ($0.00), which is consistent with RCW 79.105.330, and secures Port of�B}emerton Page 21 of 33 Aquatic Lands Lease No. 22-BO2235 West Port Orchard Page 105 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda Port's performance of its obligations under this Lease, with the exception of the obligations under Section 8, Environmental Liability/Risk Allocation. Port's failure to maintain the Security in the required amount during the Term constitutes a breach of this Lease. (b) All Security must be in a form acceptable to the State. (1) Bonds must be issued by companies admitted to do business t n the State of Washington and have a rating of A-, Class VII or better, ' the most recently published edition of Best's Reports, unles to ves an exception. Port may submit a request to the risk r for Department of Natural Resources for an exception o is q 'remen . (2) Letters of credit, if approved by State, must be i o able, a 1 w St a to draw funds at will, provide for automatic renewal, with RCW 62A.5-101, et. seq. (3) Savings account assignments, if approved State, t a State to draw funds at will. (c) Adjustment in Amount of Security. (1) State may require an adjustme t in the Sec amount: (i) At the same time as re a uation of thrinual Rent, (ii) As a condition of appro a of assi nt or sublease of this Lease, (iii) Upon a material change i hzondi on or disposition of any Improvemen , r (iv) Upon a change' e Permitted Use. (2) Port shall deliver a new o ified form of Security to State within thirty (30) days after Stat as qu djustment of the amount of the Security. n (d) Upon any default Port it i bli ions under this Lease, State may collect on the Security to offse hab li ort to State. Collection on the Security does not: (1) Relieve f lia ' i (2) tmrt of Sta of er remedies, (3) i �sta cure 1 default, or (4) ( Pre�te in t' n of the Lease because of the default. ROUTINE MAINTENANCE AND REPAIR 11.1 State' e 'rs" s Lease does not obligate State to make any alterations, maintenanc , epiac nts, or repairs in, on, or about the Property, or any part thereof, during the Term. 11.2 R irs and Maintenance (a) utine maintenance and repair are acts intended to prevent a decline, lapse or, cessation of the Permitted Use and associated Improvements. Routine maintenance or repair is the type of work that does not require regulatory permits. Port o�'�remerton Page 22 of 33 Aquatic Lands Lease No. 22-BO2235 Wes d Port Orchard Page 106 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda (b) At Port's own expense, Port shall keep and maintain the Property and all Improvements in good order and repair and in a safe condition. State's consent is not required for routine maintenance or repair. (c) At Port's own expense, Port shall make any additions, repairs, alterations, maintenance, replacements, or changes to the Property or to any Impr ements on the Property that any public authority may require. If a public authoriquires work beyond the scope of routine maintenance and repair, Ports 11 co with Section 7 of this Lease. 11.3 Limitations. The following limitations apply whenever Port repair or replacement. The following limitations also apply w maintenance, repair, or replacement on the exterior surfaces, floating house. (a) Port shall not use or install treated wood at any loc t c except that Port may use treated wood for w t (b) Port shall not use or install tires (for location above or below water. SECTION 12 DAMAGE OR DESTRUCTION 12.1 Notice and Repair. (a) In the event of damage to or shall promptly give written of the damage or destruct'o (b) Unless otherwise #01eed 1 replace the Property I immediately prior to th Construction, M 3 epai , obligatiops in ibit B, 12.2 State's W the Property unle� Port of a b water, framing. rs) at any #on,of the Property or Improvements, Port *ie, State does not have actual knowledge &-P.orvs written notice. Tjoft shall promptly reconstruct, repair, or is as nearly as possible to its condition destruction in accordance with Paragraph 7.3, cation, and Demolition and Port's additional -does not waive any claims for damage or destruction of tten notice to Port of each specific claim waived. 12.3 Insuran c P ceed3, Po is duty to reconstruct, repair, or replace any damage or destruction of thePr*eM or ady Improvements on the Property is not conditioned upon the availability o i ura roceeds to Port from which the cost of repairs may be paid. The Parties steal a ins ce proceeds in accordance with Paragraph 10.2(g)(3). 12.4 =t=Ate-Evnt of Damage or Destruction. Unless the Parties agree to terminate this Leas ,�erment or reduction in rent during such reconstruction, repair, and Alt at the Time of Damage or Destruction. If Port is in default under the terms of the time damage or destruction occurs, State may elect to terminate the Lease and Porto B emerton West End Port Orchard Page 23 of 33 Aquatic Lands Lease No. 22-BO2235 Page 107 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda State then shall have the right to retain any insurance proceeds payable as a result of the damage or destruction. SECTION 13 CONDEMNATION 13.1 Definitions. (a) "Taking" means that an entity authorized by law exercises the e ent domain, either by judgment, settlement in lieu of judgment, ntar conveyance in lieu of formal court proceedings, over all or y p i n of th Property and Improvements. This includes any exercise ment rnai any portion of the Property and Improvements that, in the J en o the State, prevents or renders impractical the Permitted Use. (b) "Date of Taking" means the date upon which title the Pr rty a ortion of the Property passes to and vests in the con Winer he effe ve date of any order for possession if issued prior to tyiate-iitle v t condemner. 13.2 Effect of Taking. If there is a taking, the Le terminates p oportionate to the extent of the taking. If this Lease terminates in whole or in pa ort shall e all payments due and attributable to the taken Property up to the date of takin s pre -paid rent and Port is not in default of the Lease, State shall refu ort the pro ra are of the pre -paid rent attributable to the period after the date of t 13.3 Allocation of Award. (a) The Parties shall allocate e c e a 'on award based upon the ratio of the fair market value of (Port' a of ate and Port -Owned Improvements and (2) State's interest t ro t e reversionary interest in Port -Owned Improvements, if an ; t - ned Improvements, if any. (b) If Port and Stat nab to gree on the allocation, the Parties shall submit the dispute bo bind n arbitr ti n n accordance with the rules of the American 14 DEFAULT AND REMEDIES 14.1 Default 1)4e Ports in default of this Lease on the occurrence of any of the following: (a) FOure pay rent or other expenses when due; (b) Fcomply with any law, regulation, policy, or order of any lawful ntal authority; comply with any other provision of this Lease; (d) mmencement of bankruptcy proceedings by or against Port or the appointment of a trustee or receiver of Port's property. Port Of Orcmerton Page 24 of 33 Aquatic Lands Lease No. 22-BO2235 We d Port Orchard Page 108 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda 14.2 Port's Right to Cure. (a) A default becomes an "Event of Default" if Port fails to cure the default within the applicable cure following State's written notice of default. Upon an Event of Default, State may seek remedies under Paragraph 14.3. (b) Unless expressly provided elsewhere in this Lease, the cure period is ty (60) days. (c) For nonmonetary defaults not capable of cure within sixty (60) d s, St e will not unreasonably withhold approval of a reasonable alternative c c Port must submit a cure schedule within thirty (30) days of o of de t. The default is not an Event of Default if State approves the s ed d Po works diligently and in good faith to execute the cure. T d ault is a Even of Default if Port fails to timely submit a schedule or fails to c rdance with an approved schedule. (d) State may elect to deem a default by Port as an Ev n of De u t if t efault occurs within six (6) months after a defau o f whic tate has provided notice and opportunity to cure and regZia he r e first and subsequent defaults are of the same nature. 14.3 Remedies. (a) Upon an Event of Default, State may ts ease and remove Port by summary proceedings or of ise. (b) If the Event of Default (1) , s m Port's failure to comply with restrictions on Permitted Use and operations un agraph 2.2 or (2) results in damage to natural resources or the Pr e to y enter the Property without terminating this Lease to 1 re e e natural resources or Property and charge Port restoration cis% an o ( cha Port for damages. On demand by State, Port shall pay all cos d/o d es. (c) Without terminatin hz se, to may relet the Property on any terms and conditions as St y de ' e appropriate. (1) tate sh 1 apply t received by reletting: (1) to the payment of any e to a othe an rent due from Port to State; (2) to the payment of 0 o c etting; (3) to the payment of the cost of any alterations an rep 'r o the Property; and (4) to the payment of rent and leasehold i tax and unpaid under this Lease. State shall hold and apply any balan Port's future rent as it becomes due. (2)" is re,'ponsible for any deficiency created by the reletting during any 0ion and shall pay the deficiency monthly. (3)t any time after reletting, State may elect to terminate this Lease for the evious Event of Default. entry or repossession of the Property under Paragraph 14.3 is not an e e o terminate this Lease or cause a forfeiture of rents or other charges Port 1�s bligated to pay during the balance of the Term, unless (1) State gives Port written notice of termination or (2) a legal proceeding decrees termination. :hard Page 25 of 33 Aquatic Lands Lease No. 22-BO2235 Page 109 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda (e) The remedies specified under this Paragraph 14.3 are not exclusive of any other remedies or means of redress to which the State is lawfully entitled for Port's breach or threatened breach of any provision of this Lease. SECTION 15 ENTRY BY STATE State may enter the Property at any reasonable hour to inspect for compliance of this Lease, to monitor impacts to habitat, or survey habitat and species. St lure s ec the Property does not constitute a waiver of any rights or remedies under s Le e. SECTION 16 DISCLAIMER OF QUIET E 16.1 No Guaranty or Warranty. (a) State believes that this Lease is consist n i the i st Doctrine and that none of the third -party interests identi i d in Para 1.1(b) will materially or adversely affect Port's right of posses i n and use o t e Property, but State makes no guaranty or warranty to that ct. (b) State disclaims and Port releases State fr for breach of any implied covenant of quiet enjoymen . his disclaimer and release includes, but is not limited to, interference arisin o exercise of rights under the Public Trust Doctrine; Treaty rights held by In Tribes; and the general power and authority of State and the United St w. re a to aquatic lands and navigable waters. (c) Port is responsible for de e i e tent of Port's right to possession and for defending Port's e*eho n e est. 16.2 Eviction by Third -Party. f �hl-j�*art)�evicts Port, this Lease terminates as of the date of the eviction. In the event o ialn, Port's rent obligations abate as of the date of the partial eviction, in xrect ortion the extent of the eviction; this Lease shall remain in full force and effect' other oect 17 NOTICE AND SUBMITTALS Following are theto ti s for delivery of notice and submittals required or permitted under this Lease. Any e the place of delivery upon ten (10) days written notice to the other. State: TMENT OF NATURAL RESOURCES Aquatic Resources Division, Ports Program 11 Washington Street SE MS 47027 lympia, WA 98504-7027 Port o remerton Page 26 of 33 Aquatic (ands Lease No. 22-BO2235 We d Port Orchard Page 110 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda Port: PORT OF BREMERTON 8850 SW State Highway 3 Port Orchard, WA 98367-7487 The Parties may deliver any notice in person, by facsimile machine, or by certified '1. Depending on the method of delivery, notice is effective upon personal delivery, upo ceipt of a confirmation report if delivered by facsimile machine, or three (3) days after ailing. 11 notices must identify the Lease number. On notices transmitted by facsimile n , Pay Parties shall state the number of pages contained in the notice, including th t e, if SECTION 18 MISCELLANEOU 18.1 Authority. Port and the person or persons exip 'his se on a alf of Port represent that Port is qualified to do business in the Sashin o , Port has full right and authority to enter into this Lease, and that each aper signing on behalf of Port is authorized to do so. Upon State's request, Port shallvide c satisfactory to State confirming these representations. 18.2 Successors and Assigns. This successors, and assigns. 18.3 Headings. The headings used in define, limit, or extend the scope of this 18.4 Entire Agreement. This entire agreement of the Parties. " promises, representations, and 18.5 Waiver. 0 (a) The �v�,V91 (b) ((The) Port, 18 Cum ad 1 'o o all o er Porto B emerton Wes Port Orchard and inure—s the benefit of the Parties, their convenience only and in no way of any provision. ing` he exhibits and addenda, if any, contains the r-ges all prior and contemporaneous agreements, .ng to this transaction or to the Property. e c or default of any term, covenant, or condition of this a ai er of such term, covenant, or condition; of any subsequent ult a same; or of any other term, covenant, or condition of this ' ceptance of a rental payment is not a waiver of any preceding or ich er than the failure to pay the particular rental payment that was al of the Lease, extension of the Lease, or the issuance of a new lease to not waive State's ability to pursue any rights or remedies under the Remedies. The rights and remedies under this Lease are cumulative and in rights and remedies afforded by law or equity or otherwise. Page 27 of 33 Aquatic Lands Lease No. 22-BO2235 Page 111 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda 18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of this Lease. 18.8 Language. The word "Port" as used in this Lease applies to one or more persons and regardless of gender, as the case may be. If there is more than one Port, their obligati ns are joint and several. The word "persons," whenever used, shall include individuals, fi s, associations, and corporations. The word "Parties" means State and Port in the collecti e. The word "Party" means either or both State and Port, depending on the context. 18.9 Invalidity. The invalidity, voidness, or illegality of any provisi affect, impair, or invalidate any other provision of this Lease. 18.10 Applicable Law and Venue. This Lease is to be interpri accordance with the laws of the State of Washington. Venue for connection with this Lease is in the Superior Court for T4arston 18.11 Statutory Reference. Any reference to a stat�t� means or hereafter amended or superseded. in of or in as presently enacted 18.12 Recordation. At Port's expense and no later th try {'3 days after receiving the fully -executed Lease, Port shall record this ase in the coup in which the Property is located. Port shall include the parcel number of the u property used in conjunction with the Property, if any. Port shall provide State with re6olrdginformation, including the date of recordation and file number. If Port fails re d th 's ease, State may record it and Port shall pay the costs of recording upon State's an 18.13 Modification. No both .Parties. Oral representations or i 18.14 Survival. Any obligatCoofnot cease, but contin Qbli 0, is effective unless in writing and signed by not bind either Party. if fully performed upon termination of this Lease do Port until fully performed. Port o fl Bremerton Page 28 of 33 Aquatic Lands Lease No. 22-BO2235 WesVtud Port Orchard Page 112 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda 18.15 Exhibits. All referenced exhibits are incorporated in the Lease unless expressly identified as unincorporated. THIS AGREEMENT requires the signature of all Parties and is effective on the date last signature below. PORT DF BREMERTON Dated: 0' AA-- , 2011 By: CARY BOZEM -� Title: Chief Exe is Address: 8850 SW tate Hi ay �rc WA 367-7487 Phone: 74-2 ex . 2 STATE'qF\WASHWQTON DEPART ATURAL RESOURCES Dated: a , 2011 Approved 29 day of J : Janis Snoey, Port Orchard Attorney General Page 29 of 33 Cont0issioiOr of Public Lands I I I 1 ington Street SE MIS 47027 Olympia, WA 98504-7027 Aquatic Lands Lease No. 22-BO2235 Page 113 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda REPRESENTATIVE ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss County of Kitsap ) I certify that I know or have satisfactory evidence that CARY BOZfs i the pe s n why appeared before me, and said person acknowledged that he signed inst oath stated that he was authorized to execute the instrument and acknowledge ' h C ' xecutive Director of the Port of Bremerton to be the free and voluntary act o such p fo uses and nnrnncac mantinnarl in fha inctr-imant 1 Page 114 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda STATE ACKNOWLEDGMENT Page 115 of 263 201109290042 09/29/2011 10:00:37 AN Back to Agenda I���J-" V Wes, Legal Description of Premises and Encumbrances '35 Page 116 of 263 Back to Agenda ease - _ Lease 22-OA2235 Lease 22-OA9891 That portion of t e h bor area lying landward of the Mean High Water line, fronting Lots Tract 1 Tract "A" 1 throuh 10 of B k 1 of Shore and Tidelands of Sidney as shown on that certain map That portion of the harbor area lying landward of the Mean High Water line, fronting That portion of an unnumbered tract of Shore and Tidelands of Sidney as shown on dated 30 May 1 2,ting a portion of Government Lot 4, Section 26, Township 24 North, Blocks 11 and Orchard Street in SM Stevens Town Plat of Sidney, filed in Volume 1, page 1 that certain map dated May 30,1892, lying landward of the toe of the rock rip -rap as it Range 1 East M. ore particularly described as follows: of Plats records of Kitsap County, Washington and Block 11 and Orchard Street lying existed on January 15, 2004 and adjacent to and abutting Lots 1 though 5 of Block 1 of the within the Shore and Tidelands of Sidney as shown on that certain map dated May 30, Plat of Bay Street Addition to Port Orchard as recorded under Auditor's File Number Comm ncin at that c rtain monument as described in Record of Survey recorded under 1892, being a portion of Government Lot 3, Section 26, Township 24 North, Range 1 East 51104 and filed in Volume 3, page 116 of plats, records of Kitsap County, Washington Auditor's File umber 09 257 and filed in Volume 49, page 139 of surveys, records of W.M. more particularly described as follows: more particularly described as follows: Kitsa Cou ,Was 'ngt designated as the meander corner common to Section 25 261 T nship Nor t ange East W.M., from which the East one quarter of said Commencing at that certain monument as described in Record of Survey recorded Commencing at that certain monument as described in Record of Survey recorded Sectio 6 bears °31' " W 5 .21 et; thence N 1°31'09" E, along the Northerly extension under Auditor's File Number 3090257 and filed in Volume 49, page 139 of surveys, under Auditor's File Number 3090257 and filed in Volume 49, page 139 of surveys, e East Line f G ernment L t 4 o said section, 912.48 feet to its intersection with the records of Kitsap County, Washington being designated as the meander corner common records of Kitsap County, Washington being designated as the meander comer common Inner Harbor ine onting the Sh re a d Tidelands of Sidney; thence Southwesterly and to Section 25 and 26, Township 24 North, Range 1 East W.M., from which the East one to Section 25 and 26, Township 24 North, Range 1 East W.M., from which the East one Northweste y al ng said Inner arb r Line on the following courses, S 47°08'51" W 1563.44 quarter of said Section 26 bears S 1 3109 W 589.21 feet; thence N 1 31 09 E, along the quarter of said Section 26 bears S 1 3109 W 589.21 feet; thence Southwesterly along the feet and 8403 '09" W 137.34 eet ore less int on said Inner Harbor Line, 11.00 feet Northerly extension of the East Line of Government Lot 4 of said section, 912.48 feet to its Balanced Government Meander Line on the following courses S 87°10' 33" W 346.90 and East of at r' angle to the i ers tion o -he Norther extension of East line of Sidney intersection with the Inner Harbor Line fronting the Shore and Tidelands of Sidney; S 55024'31" W 494.26 feet more or less to the Northwest corner of Lot 5 of the Plat of Bay Avenue as delineated on t fac oft lat e t A dition to Sidney as filed in thence Southwesterly and Northwesterly along said Inner Harbor Line on the following Street Addition to Port Orchard as recorded under Auditor's File Number 51104 and filed Volume 1, page 10 of 1 a an as sh wn said map Sh re and Tidelands of Sidney, and courses, S 47 08 51 W 1563.44 feet and N 84 36 09 W 866.00 feet, to that certain an angle in Volume 3, page 116 of plats, records of Kitsap County, Washington and the TRUE the TRUE POINT OF B GI ING• the a leaving said nn Harbor Li run °43'24" E, point in the said Inner Harbor Line fronting Block 11 of SM Stevens Town Plat of Sidney POINT OF BEGINNING; thence leaving said Balanced Government Meander Line, run N parallel with and 11.00 ast of t ri ht angle to the id ast i of S' ey enue, as filed in Volume 1, page 1 of plats, and the TRUE POINT OF BEGINNING; thence 1°43'24" E, on the Northerly extension of the West line of said Lot 5, a distance of 149.38 35.11 feet more or less to its inter ctio with the Mean ig Wa r Line o Sine ' nlet, as leaving said Inner Harbor Line run N 31048'12" W, parallel with the lot line common to feet more or less to the toe of the rock rip -rap as it existed on January 15, 2004; thence based upon U.S.C. and G.S. Tidal enc Mark Stamp N ber 9 UB 2 SET; the a Lots 3 and 4, Block 11 of said SM Stevens Town Plat of Sidney, 33.46 feet more or less to its Southeasterly along the toe of said rock rip -rap on the following courses, S 75°16'33" E Southeasterly and Northeasterly, al ng id Mean igh at er L' e o e f owi g intersection with the Mean High Water Line of Sinclair Inlet, as based upon U.S.C. & G.S. 103.49 and S 64°05'03"E 48.12 feet more or less to a point on the Balanced Government courses, S 75°30'46" E 27.34, N 88°11 eet, S °49'0 ' E 3 .18 an S 88 Tidal Bench Mark Stamped Number 9 SUB 2 RESET; thence Northeasterly along said line Meander Line which bear N 55°24'31" E from the True Point of Beginning; thence S E 53.26 feet more or less to its intersects with the s 'd Inner arb r Line; th ce al ng said of Mean High Water on the following courses 46°53 50 E 31.78 feet, N 50 08 13 E 55 24 31 W, along said meander line 179.62 feet more or, less to the TRUE POINT OF Inner Harbor Line on the following courses, '51" W 6.74 et and N 036' 9" �N 53.47 feet, N 44026'05" E 41.65 feet, N 64041 33 E 22.54 feet and N 55°20 25 E 17.46 feet; BEGINNING. 137.34 feet more or less to the TRUE POINT OF BEGINN G. thence leaving the said line of Mean High Water run S 44°53'41" E 37.08 feet to the beginning of a non -tangent curve to the Southwest from which the radius point bears S 44053'41" E 49.64 feet; thence Southwesterly along the arc of said curve 30.67 feet to a Tract "B". point from which the radius point bears S 80°17'22" E; thence N 87005'20" W 27.92 feet That portion of an unnumbered tract of Shore and Tidelands of Sidney as shown on more or less to a point on the Northerly extension of the West line of Orchard Street in that certain map dated May 30, 1882, lying landward of the toe of the rock rip -rap as it id plat; thence S 1°41'48" W, along said Northerly extension, 90.84 feet more or less to a existed on January 15, 2004 and adjacent to and abutting Lots 8 through 10 of Block 1 of Datum-- Mean Lower Low Water po' t on the said er Harbor Line which bears S 84036'09" E from the True Point of the Plat of Bay Street Addition to Port Orchard as recorded under Auditor's File Number Originating from U.S.C.&G.S. Tidal Bench Mark - egi ing; the a th ce N 84036'09" W, along the said Inner Harbor Line 92.63 feet more 51104 and filed in Volume 3, page 116 of plats, records of Kitsap County, Washington Elevation=71.45 o le to the TR OINT OF BEGINNING. more particularly described as follows: Stamped No. 9 SUB 2 RESET Located on the front steps of the Bremerton Post Office at 2 Commencing at that certain monument as described in Record of Survey recorded 6th and Pacific in Bremerton, Washington That orti of the harbor area lying landward of the Mean High Water line, fronting under Auditors File Number 3090257 and filed in Volume 49, page 139 of surveys, Block 2 a d 13, Sidney Street and a portion of Orchard Street, Fredrick Street and records of Kitsap County, Washington being designated as the meander corner common portion o idney SM Stevens Town Plat of Sidney, filed in Volume 1, page 1 of to Section 25 and 26, Township 24 North, Range 1 East W.M., from which the East one Datum Plane MLLW NGVD 29 NAVD 88 PI s, re ords of itsa Coun , Washington, Block 13 and portion of Sidney Street in First quarter of said Section 26 bears S 1031'09" W 589.21 feet; thence Southwesterly along the ddit n to Sidne itsap oun , Washington,/recorded in Volume 1, page 10 of Plats, Government Balanced Meander Line on the following courses S 87 10 33 W 346.90 feet Highest Estimated Tide---------14.70 +/- 0.5 reco ds of K' County, W hin ton and Bl 1 and 13, Sidney Street, Fredrick Street and S 55°24'31" W 568.69 feet more or less to the Northeast corner of Lot 8 of the Plat of Mean Higher High Water----------11.74----------5.51-----------8.99 a a po ion of Or and Stre t, lyi g within e S ore and Tidelands of Sidney as shown Bay Street Addition to Port Orchard as recorded under Auditors File Number 51104 and Mean High Water ---- --------------- 10.87---------- 4.64----------- 8.12 n that erta' dat M 30, 892, be'. g a ortion of Government Lots 3 and 4, filed in Volume 3, page 116 of plats, records of Kitsap County, Washington and the TRUE Mean (Half) Tide Level ------------- 6.85---------- 0.62----------- 4.10 Sectio 26, ownshi 4 North, nge 1 st M. more particularly described as follows: POINT OF BEGINNING; thence continue S 87010' 33" W, along said Balanced Meander NGVD --------------------------------- 6.23---------- 0.00----------- 3.48 Line 37.21 feet more or less,to the Northwest corner of Lot 8 of said plat; thence N Mean Low Water -------------------- 2.83---------3.40-------- ---0.08 Co enc at tha erta' monu ent s described in Record of Survey recorded 1°43'24" E, on the Northerly extension of the West line of said Lot 8, a distance of 29.59 Mean Lower Low Water ------------ 0.00-------- -6.23-------- -2.75 under Au ' is i e um r 3090 7 an filed in Volume 49, page 139 of surveys, feet; thence N 88°16'36" W, at right angle to the West line of said Lot 8, a distance of 59.97 Lowest Estimated Tide----- -4.50 +/- 0.5 ' records of Kitsa my ashi ton ing designated as the meander corner common feet more or less to the Easterly margin of Harrison Street as defined by the Plat of the to Section 25 and 2 To nship 4 N th, Range 1 East W.M., fr which t e st one First Addition to Sidney as filed in Volume 1, page 10 of plats, records of Kitsap County, quarter of said Sectio 6 bea S 1° 1'09" W 589.21 feet; the e N 1°3 ' , alo the Washington; thence N 1°43'24" E, along the Easterly margin of said Harrison Street and Northerly extension of the East L' a of Government Lot 4 f said ection, 912. feet o its the Northerly extension thereof 222.73 feet more or less to the toe of the rock rip -rap as it intersection with the Inner r r Line fronting the' a an idelands of Sidn existed on January 15, 2004; thence Southeasterly along the toe of said rock rip -rap on the Equipment and Procedures thence Southwesterly and Northwesterly along said. I er rbor Line on the foll win following courses, S 78°57'05" E 32.83 feet and S 71025'51" E 60.14 feet more or less to a 20" Theodolite, EDM and 200.0' steel tape. courses, S 47008'51" W 1563.44 feet and N 84°36'09" 148. 6 feet more or less to t e point N 1043'24" E, from the Northeast corner of said Lot 8, the True Point of Beginning; Procedure = The control portion of this survey is in intersection of the Easterly margin of Sidney Avenue as sl own on said Plat of First thence S 1°43'24" W, along the Northerly extension of the East line of said Lot 8, a compliance with the Federal Geodetic control committee's p Addition to Sidney and the Inner Harbor Line as sho n n the Map of Shore and distance of 207.53 feet more or less to the TRUE POINT OF BEGINNING. Tidelands of S-piney, Kitsap County, Washington , d ted ay 30, 1892, said point being "Geodetic Accuracy Standard and Specification for using the Northerly extension of the West line of Lot 1, Bl k 13 of said Plat of First Addition to GPS Relative Positioning Techniques", version 5.0 updated Sidney; thence N 1°43'24" E, along the Northerly exte io of the West line of Lot 1, Block August 1, 1989 for Group C, Order 1 Surveys. Corner Ties 13 of said Plat of First Addition to Sidney, 5.27 feet to t T E POINT OF EGINNI ; were made by Field Traverse. Traverse lines were Closed thence N 65°24'01" W 346.49 feet to the beginning of a cu a to hich e Loop or Closed Between Known Points. ly on g e radius point bears S 24035'59" W 266.58 feet; thence Northw terlyEEE' - arc of said curve 82.34 feet to a point from which the radius poin W; thence N 83°05'51" W 143.99 feet to the beginning of a curve to the left from w ch t e radius point bears S 6°54'09" W 49.64 feet; thence Southwesterly along the arc f sa'd Vertical Datum based upon HARN (GPS 222) Stations Bremerton curve 23.76 feet to a point from which the radius point bears S 20°31'16" E; the ce Air, King Olaf and Sitar RM1 and NOAA Vertical Control NGVD 20°31'16'' W, along the radial extension of end of said curve, 31.90 feet more or ess o its 1929, Adjustment of 1947 monuments PEAT 1934, P255 and No. 9 intersection with the Mean High Water Line of Sinclair Inlet, as based upon U.S. . & Datum SUB 2 RESET Tidal Bench Mark Stamped Number 9 SUB 2 RESET; thence Southeasterly along th aid Mean High Waterline on the following courses, S 86°18'09" E 134.27 feet, S 78°09'03" Horizontal Datum NAD 83191 Geoid 1993 expressed in US Survey 93.79 feet, S 69°04'17" E 97.50 feet, S 60°15'50" E 69.17 feet, S 70015'34" E 45.38 feet, S feet 63036'47" E 119.18 feet and S 73°35'59" E 48.00 feet more or less to a point on the Northerly extension of the West line of Lot 1, Block 13 of said Plat of First Addition to Sidney, which Exh2b2 Showing bears N 1°43'24" E from the True Point of Beginning; thence S 1°4324" W, along said RT' OF REMEl�T oN Northerly extension 32.00 feet more or less to the TRUE POINT OF BEGINNING. ort a agemen greement 22-080016 VLease ers 22-OAS 34) 2 5 and Lease Number 22-OA9891 as ended 2010 in Harb r re and Shore and Tidelands of Sidney SURVEYOR'S CERTIFICATE` AUDITOR'S CERTIFICATE .fronting 1 ortion of Blocks 11 12 and 13 This map correctly represents a survey made by me or under my direction in Filed for record this 01 day of MC.dt&N 20f8 at IN�n p ' conformance with the requirements of the SURVEY RECORDING ACT at the Section 26 Township 2AN Range 1 East W.M. at the request and portion reque of Porto Bremerton of Lyle R. Muller Un-Numbered Tract of tlte Shore and Tidelands of Sidney By: being in Ward C. Muller and Associates -Licensed Land ors Surve County Auditor Y portion of Government Lots 3 and 4 217 Sidney Avenue SURVEY NUMBER SW -NE 26-24-01-1-t'X MSE-NE 26-24-01-1- OCC)g Section 26-Township 24 North -Range 1 East W.M. Port Orchard, Wa 98366 Phone (360)876-3443 ° ° AUDITOR'S FILE NUMBER Z01I p3Oic�35 Book �5 Page Fieldbok Number 405 and "X• Sheet 1 0 12 Sheets Job 5272 — Latitude N 47 32 28.08 Longitude W 122 38 09.41 f Page 117 of 263 5 Z Its 'S Back to Agenda PMA 22-080016 . Parcel 1 PMA 22-080016 Parcel 2 That po Ion the harbor area fronting Blocks 11, 12 ,13, Orchard Street, Fredrick Street and Sidney Street all in the Sidney Tidelands That portion of the harbor area fronting Sidney Street and Block 13, all in the Sidney Tidelands fronting Sidney Street and Block 13 of fronting ocks 1, 12, 13 of the Plat of S.M. Stevens Town Plat of Sidney, as recorded in Volume 1, page 1 of plats and Block 13 in the the Plat of First Addition to Sidney as recorded in Volume 1, page 10 of plats, records of Kitsap County, Washington and being a portion Shore a d Ti elands of Sidney as shown on that certain map dated May 30, 1892, fronting Block 13, Plat of First Addition to Sidney as of Government Lot 4, Section 26, township 24 North, Range 1 East W.M. more particularly described as follows: recor in V ume 1, page 10 of plats, records of Kitsap County, Washington and being a portion of Government Lots 3 and 4, Section 26, To hi 4 Nort Range 1 East W.M., more particular described as follows: Commencing at that certain monument as described in Record of Survey recorded under Auditor's File Number 3090257 and filed in " Volume 49, page 139 of surveys, records of Kitsap County, Washington being designated as the meander corner common to Section 25 Co mencin at in monument as described in Record of Survey recorded under Auditor's File Number 3090257 and filed in and 26, Township 24 North, Range 1 East W.M., from which the East one quarter of said Section 26 bears S 1°31'09" W 589.21 feet; thence Vol me 49, p ge 139 urve s, records of Kitsap County, Washington being designated as the meander corner common to Section 25 N 1°31'09" E, along the Northerly extension of the East Line of Government Lot 4 of said section, 912.48 feet to its intersection with the d 26, To nshi 24 Nort Ra e 1 East W.M., from which the East one quarter of said Section 26 bears S 1°31'09" W 589.21 feet; thence Inner Harbor Line fronting the Shore and Tidelands of Sidney; thence Southwesterly and Northwesterly along said Inner Harbor Line on N 1031'09' E, Ong the No her extension of the East Line of Government Lot 4 of said section, 912.48 feet to its intersection with the the following courses, S 47°08'51" W 1563.44 feet and N 84°36'09" W 148.36 feet more or less to the intersection of the Easterly margin of Inner rbor ine fronting e S ore and Tidelands of Sidney; thence Southwesterly and Northwesterly along said Inner Harbor Line on Sidney Street as shown on the said Plat of First Addition to Sidney and the Inner Harbor Line as shown on the Map of Shore and the fo owi g courses, S 47 08'5 " W 1563.44 feet and N 84°36'09" W 148.36 feet more or less to the intersection of the Easterly margin of Tidelands of Sidney, Kitsap County, Washington, dated May 30,1892, said point being the Northerly extension of Lot 1, Block 13 of said Sidriey A enue as show on s id Plat ddition to Sidney and the Inner Harbor Line as shown on the Map of Shore and Tidelands Plat of First Addition to Sidney; thence N 1°43 24" E, along the Northerly extension of the West line of Lot 1, Block 13 of of said Plat of of Si , Kitsap Co u y, W shin n , dated MAT20, 1892, said point being the Northerly extension of the West line of Lot 1, Block 13 of First Addition to Sidney, 200.00 feet and the TRUE POINT OF BEGINNING of said Parcel 2; thence N 84°36'09" W, parallel with the said said Plat of First Ad Rion o Sid ey; t ce 043' 4" E, along the Northerly extension of said West line of Lot 1, Block 13 of said Plat of Inner Harbor Line, 33.07 feet more or less to its intersection with the Northerly extension of the centerline of Sidney Street and shown on First Addition to S' ney 7.27 eet ore or less t its intersection with -the Mean High Water Line of Sinclair Inlet, as based upon U.S.C. said Plat of First Addition to Sidney; thence N 1°43'24" E, along the Northerly extension of the said centerline of Sidney Street, 754.69 feet and G.S. Tidal B ch ark St mp Number 9 S B 2 SET and e TRU OINT OF BEGINNING of said Parcel 1; thence N 1°43'24" more or less to the Re -Established Outer Harbor Line, as approved by the Harbor Line Commission per Resolution Number 175, dated E, along the said erly a to on, 162.73 feet; hen e N 9" , ara 1 with the said Inner Harbor Line 33.07 feet more or less to September 11, 1973; thence N 63°48'53" E, along said Re -Established Outer Harbor Line, 237.64 feet more or less to point 210.00 feet East its intersection with the Nort erl extension of t ce erli of Sid y Stre as shown on said Plat of First Addition to Sidney; thence N of at right angle to the said Northerly extension of the centerline of Sidney Street and shown on said Plat of First Addition to Sidney; 1°43'24" E, along the Northe y e tension of sai cen rline 7 4.69 fe more o ess to a Re -Established Outer Harbor Line, as approved thence S 1°43'24" E, parallel with and 210.00 feet East of at right angle to the said centerline of Sidney Street 814.40 feet more or less to a by the Harbor Line Commissi n p r Resoluti N ber 17 , da Se inr 11,1973; ence Southwesterly along the said point which bears N 1°43'24" E, parallel with the Northerly extension of the West line of Lot 1, Block 13 of said Plat of First Addition to Re -Established Outer Harbor L e on lowi g cour s, S °48' 43. eet, 149" W 645.85 feet and S 46037'51" W 165.19 Sidney, 265.00 feet and S 84°36'09" E, parallel with the said Inner Harbor Line,177.37 feet from the intersection of the said Inner Harbor feet; thence leaving said Re-Estab ' ed Oute arbor 'ne r n S 1°4104 ' W, rallel wi th centerline of Orchard Street in said Plat of Line and the West line of Lot 1, Block 13 of said Plat of First Addition to Sidney extended; thence N 84036'09" W, parallel with the said S.M. Stevens Town Plat of Sidney, 521.8 eet more o ess a point w ich ars 31°4 W, parallel with the Northerly line of Lot 3, Inner Harbor line 177.37 feet more or less to its intersection with the Northerly extension of the West Line of Lot 1, Block 13 of said Plat of Block 11 of said Plat of S.M. Stevens Town Plat of S' ney from the a gle int ' the er Harbor Line fronting Block 11 of said Plat of First Addition to Sidney; thence S 1°43'24" E; along the said Northerly extension 65.00 feet more or less to the TRUE POINT OF . S.M. Stevens Town Plat of Sidney; thence S 31°48' 2" E 02.78 feet ore r less tot a sa Mean High Water Line of Sinclair Inlet; thence BEGINNING along the said Mean High Water Line on the foll 1 course, N 6 5 0 W 31 8 fe ° N 50°08'13" E 53.47 feet, N 44°26'05" E 41.65 feet, N 64041'33" E 22.54 feet, N 55020'25" E 17.46 feet, 44°55'41" , 5.8 feet to t be 'nning a curve to the right from which the radius 22-080016 easterl a arc of said curve 71.34 feet to a point bears N 45°06'29" E 20.00 feet; thence Northwesterly, N rthe sterly an SoOf PMA point from which the radius point bears S 69°28'44" W; the ce S °31'16" 11.eet , 86°18'09" E 4.27 feet, S 78009'03" E 93.79 feet, Parcel 3 S 69004'17" E 97.50 feet, S 60015'50" E 69.17 feet S 70015'34' .38 feet 63°3 47" 19.1 eet a S 035'59" E 48 et more or less to the TRUE POINT OF BEGINNING. That portion of the harbor area fronting Block 13 of the Sidney Tidelands fronting Block 13 of the Plat of First Addition to Sidney as recorded in Volume 1, page 10 of plats, records of Kitsap County, Washington and being a portion of Government Lot 4, Section 26, - township 24 North, Range 1 East W.M. more particularly described as follows: Commencing at that certain monument as described in Record of Survey recorded under Auditor's File Number 3NO257 and filed in Volume 49, page 139 of surveys, records of Kitsap County, Washington being designated as the meander corner common to Section 25 Area Type Reference-_ Square F a e Lease 22-OA2235 "A" on -Water Dependent Lease No. 22-OA2235 ( r PMA 22-0816) 3178.4sq. ft. Lease 22-OA2235 "B" Public Use Area Lease No. 22-OA2235 (per PMA 22-oo6ol 07.3 s . ± Lease 22-OA2235 "C" on -Water Dependent Lease No. 22-OA2235 (per PMA 22-080 6) 94 .3 s . ± Lease 22-OA2235 "D" Public Use Area Lease No. 22-OA2235 (per PMA 22-080016) 550.2 s . ft. Lease 22-OA2235 "E" on -Water Dependent Lease No. 22-OA2235 (per PMA 22-080016) 0 4 s . f -+ Lease 22-OA2234 "A" on -Water Dependent Lease No. 22-OA2234 (per PMA 22-080016) 2069.1 s . Lease 22-OA2234 "B" Public Use Area Lease No. 22-OA2234 (per PMA 22-080016) 1547.0 s . ft. _ Lease 22-OA2234 "C on -Water Dependent Lease No. 22-OA2234 (per PMA 22-080016) 2108.8 s . ft. ± Lease 22-OA9891 "A" on -Water Dependent Amended Lease No. 22-OA9891 (Tract "B") 2570.7 s . ft. ± Lease 22-OA9891 "B" Public Use Area Amended Lease No. 22-OA9891 (Tract "B") 1079.7s . ft. ± Lease 22-OA9891 "C on -Water Dependent Amended Lease No. 22-OA9891 (Tract "B") 16,048.9 s . ft. ± Lease 22-OA9891 "D" ' on -Water Dependent Amended Lease No. 22-OA9891 (Tract "A") 3050.9 s . ft. ± Lease 22-OA9891 "E" Public Use Area Amended Lease No. 22-OA9891 (Tract "A') 1573.2 s . ft. ± Lease 22-OA9891 "F" on -Water Dependent Amended Lease No. 22-OA9891 (Tract "A") 6667.4 s . ft. ± MA 22-080016 Parcel 1 619, 622.0 s . ft. ± MA 22-080016 Parcel 2 160,075.4 s .ft. MA 22-080016 Parcel 3 10,503.0 s . ft. and 26, Township 24 North, Range 1 East W.M., from which the East one quarter of said Section 26 bears S 1°31'09" W 589.21 feet; thence N 1°31'09" E , along the Northerly extension of the East Line of Government Lot 4 of said section, 912.48 feet to its intersection with the nner Harbor Line fronting the Shore and Tidelands of Sidney; thence Southwesterly and Northwesterly along said Inner Harbor Line on the following courses, S 47°08'51" W 1411.90 feet more or Iess to the Northeast corner of Lot 101 Block 13 of the Sidney Tidelands as shown on the Map of Shore and Tidelands of Sidney, Kitsap County, Washington, dated May 30,1892, said point being the intersection of the Northerly extension of the line common to Lots 10 and 11, Block 13 of said Plat of First Addition to Sidney and the Inner Harbor Line as shown on said Map of Shore and Tidelands of Sidney; thence N 88°16'36" W, at right angle to the said East line of Lot 10 of the Plat of First Addition to Sidney, 175.00 feet more or less to its intersection with the Northerly extension of the Lot line common to Lots 3 and 4 of said Block 13 of the Sidney Tidelands; thence S 1°43'24" W, along Northerly extension of said lot line common to Lots 3 and 4, a distance of 52.05 feet more or to a point which bears Northerly along the said lot line common to said Lots 3 and 4 of Block 13 of the Sidney Tidel distance from the Inner Harbor Line; thence N 84°36'09" W, parallel with and 49.49 at right angle to the said Inner Ha or Line, 70.14 feet ore or less to a point 11.00 feet East of at right angle to the West line of Lot 1, Block 13 of said Sidney Tidelands; the e S 1°43 " W, arallel with the West line of said Lot 1, a distance of 14.89 feet more or less to its intersection with the Mea igh ater Line of Si lair nlet, as based upon U.S.C. and G.S. Tidal Bench Mark Stamped Number 9 SUB 2 RESET;; thence Easterly ong the said Mean igh ater Line on the following courses, S 75°30'46" E 27.34 feet, N 88°11'09" E 67.58 feet, S 83°49'01" E 30 8 fe and S 88°25'05" E 53. 6 fe t more or less to its intersection with the said Inner Harbor Line; thence N 47°08'51" E, along the s d I er Harbor Line 94.80 fe t m re or less to the TRUE POINT OF BEGINNING. Exhibit Showing RTo OF BJWMEffT0N ort a agemen greement 22-080016 Lease ers 22- AZ 3422 5 and Lease Number 22-OA9891 as ended 2010 in Harb r re and Shore and Tidelands of Sidney AUDITOR'S CERTIFICATE fronting .11 portion of Blocks 11, 12 and 13 Filed for record this CA Y da of i'Q 201.9 at P"n _ �...R Section 26 Township K4N Range 1 East W.M. at the request . and portion v:. a� Un-Numbered Tract Ward C. Muller & Associates :� ti of Lyle R. Muller o the Licensed Land Surveyors f • Land Development Planning V� Shore and Tidelands of Sidne • Boundary and Lot Surveys a' . • Subdivision and Platting 30438 By being 2n • Construction Surveying F.p 'RF 4 County AUdltOf �o LAN5� Over 50 years of Service to i{iteap and Olympic Peninsula portion of Government Lots 3 and 4 NFL D 217 Sidney Avenue (360) 876-3443 SURVEY NUMBER SW -NE 26-24-01-1-.0W(pSE-NE 26- -01-1- OOC -) Section 26-Township 24 North -Range 1 East W.M. Port Orchard, WA 98366 (360) 377-5951 t,zahM pmlowpk,' J ,n ebpwo "edbylaw AUDITOR'S FILE NUMBER ZOIj D3df)13Book-Page Filedbook 405 and "x" Sheet 2of 12 sheets J O b S 2 7 2 — 1 Page 118 of 263 zovlo3c) 5z) Back to Agenda Bearings based upon Washington Coordinate System / North Zone NAD 83191 as derived from Global Positioning System (GPS) ties to High Accuracy 9� 66 / Reference Network (HARN) Control Stations. Refer to A= 35°23'41' A= 204° '25• A= 27025'25" A= 17°41'50' / / control scheme as shoum on survey recorded under Vicinity Map © R= 4964 R= 2D ® R= 49.64 R= 286.38 / / Auditor's File Number 3090257 and filed in Book 49, L= 30.67 L= 34 L= 23.76 L= 82.34 5133Q1 / page 139 of surveys. No Scale _ Ali SINCL o�B53 63 / /,. Re -Established Outer Harbor Line , 6A 00 / per State Harbor Lute Contmisaio�t Reaolutimt Number 175 dated Septent6er 11, i97� 23' • - , N 8800714911 E 645.85 000 �� 14 00 / • Harbor �� 16 W / 36'09" ►N �o° OtO / 869.25 4i PQa� 9Q z �, oey / co I = W O PMA 22-080016 cel 1 Area= 619,622 sq. ft. more or as �. , <(I / o 0 / Ame ed ase umber / rea= 26, 2 sq. .more or less Z g I%1.31_N 88°16L��6_W 6� '� (ti'�� Y i 1 ti �= 0 N8� °0551"W W Lease Number 2 629 QV ii / o ��� ; / U ; 27. 25 Ab,�' `� 26 N 87°05'20, W `LU g Ito�� . ,ram $ City of Pori Orchard 6S?9o,, 2 N 8°16 36• w i i o�g��°" N 8 7° 10'3 3" E 3 4 6.90 ' sc s Amended Le W Aquatic Land Lease a `� 92 63 v ase Number 22-002b82A9 �' N ., 175. AD I ��, I �i 2' i Number 22-A02336 . 0 84 36 9" W �N, vti'�' 625.00 N 8°57.5.e— \ — _ Harbor �h� W/V I I � �% 63 N C) N 84°36'09" �j/ -- `R 37.3 ? ZsYs7.� �5° q �, �a4 31A co o 866.00 I ' Amended Lease m 22-OA225' ;" ", N 4g Lot Ln 64°ps'e Z 017. Area= 5,725 sq. ji. or l O�e A ^ 2 �1g6 A9 G Amended Lea 22-0 891+ / I — Tr t "B Rom (meters) 26 25 / ti6sos Area- 19,699 sq. ft more le s p3 1 Na 61779.318 °t 9p),, I 59.97 E 364677.824 1✓ l7i I 880 '36" �/ 1 0 e ,,I / 1`b• tie 'N Cd G° °� 1 �0 998 1 eQ W d = orn E h 2 h wing _ ERfTON I Cn P t ana ment Bement 80016 N �J�e� Lease Nu bers 22-0 3�, 22-0 2 5 an ea Number 22-OA9891 2 / %1 6� °�` as a en ed 10 /0) QON 63 .�6 Harbor Are and S ore a Tidelands of Sidney AUDITOR'S CERTIFICATE ntin9 Qe y6� tk��� �� o on locks 11, 12 and 13 R �0 Filed for record this day of Kk�h 2019 at i in p and portion ; .. �i ..-•••--• © Section 26 Township 24N Range 1 East N.M. at the request Un-Numbered Tract Ward C. Muller & Associates : c of Lyle R. Muller I o the Licensed Land Surveyors f • Land Development Planning Shore and Tidelands of Sidney • Bos;.dary and Lot Surveys a Q • Subdivision and Platting I By: 26 25 being in • Construction Surveying CountyAUdI[Or fo �GISThpSv¢� portion of Government Lots 3 and 35 36 Over 50 years of Service to Kiteap and Olympic Peninsula N'9L LAND 217 Sidney Avenue (360) s7s-3443 SURVEY NUMBER SW -NE 26-24-01-1- OMeSE-NE 26-24-01-1- bC>Og Section 26-Township 24 North -Range 1 East W.M. C Port Orchard, WA 98Her (360) 377 5951 _ � - Job 5 2 7 2 — 1 � ra�tW pdfnM-aadnswc k-kphMedbyI- AUDITOR'S FILE NUMBER 01 030101�� BOOI(�Page Fieldbook 405 and "X" Sheet 3 of 12 sheets Page 119 of 263 'I� "75 bN Back to Agenda flaa.Cll �o 6£La3vd '6p Moog ui papf puy LSZ060£ .1aqulnN altg s ,10 pn y pun pap 1oia 1 fiaa ins uo unzolls sy au1a11,16 1041u03 01 .lafas •sun NS 10,11110D (WNVH) �.1oazjdN aauaft Rayinaod i18iH of N (S f)) 111alsfls 8tltuoiaisog 1y 9 uto,l� paal,lap 6v 16/£8 CINV �1 0 10Z 1113ON ulaisfls a1yurp•10 11 uulsyM uodn pasvq s2mmg % a y ,h2. L /.' Iry -71 U ♦ 'Q 4 _ W 3N 01 IN -. ^i 3N11 HO1HW loco QO p C0 Grp , I V i / `,fF"'!'�%m • s. �.( 3.8b100 er � _ \ � \ 1 �t • �l _ _ III f , \ 0 1•• _ _ p � •N 3.8bl17.l r`4 F 06 0E i O H %1 Y G LID � I N! co — i M H 1• 1 1 • � - \ - \ 1'1 it F- � � ;d\ b9 6 _ • 1 �� � � �• cis \ 1 � j , 1 i .Ll„I 1 3.8b1 bo T N 1p e— 1 � •+i. 13 W � � 'tom c 1 / / / / / 1 %� \ 2L'1;j 1e ' S •J •. 3BE;fr,Zl l: -' � ``` ' f � / � fib•., � ���• aK .. � � 1 in � / - � , Z \�'••� �,yy ar" yam � 1 N Ca/ / • x �••1 N, � N 1 N H 44 \ a 1 36 p1 aY Y0406 00,19 hibit Showing J -Q2 ersoa Z ss'zr5� ti OF BREMERT'oN - z8'rz5 3 8P.Tb,T N �� agement Agreement 22-080016 \ Lease Number 22-OA9,235 ��. as amended 2010 �r AUDITOR'S CERTIFICATE in H ,�Harbor Area fronting Filed for record this day of y4)c,,QZYN 201•�6 at I -.50vin R MU Section .26 Township .24N Range 1 East W.M. at the request portion of Blocks YY nd 12 Ward C. Muller &Associates °V �ws tip; • of Lyle R. Muller of the P �r 7 �r Licensed Land Surveyors y `' i r ( Shore and Tidelands of Sidney • Land Development Planning • Boundary and Lot Surveys .0 + y L f • Subdivision and Platting ' '�' By: being portion o • Construction Surveying 38 p. 4� County Auditor Government Lot 3 r ����SAN Section 26-Township 24 North -Ran e 1 East W.M Over 50 years oFService to Kitsep and Olympic Peninsula ONAG LAND � SURVEY NUMBER SW -NE 26-2.�.-01-1- �� SE -NE ,26-,2.�-01-1- b0pcj 217 Sidney Avenue (360)876-3443 Port z-tnooOrchard, wA983ss (360)377-5951 AUDITOR'S FILE NUMBER2n1�030 \35 Pa e f Job 5272-' ®CZy,'t zooawa,dc.t*1— andAssociatesO BOOK_ g Fieldbook 405 and "xrr Sheet 4 o 12 sheets Rcyxr.lnd.ui in while a port f.x perxnnl use u resde is prohihilcvl by Inw ..... - -'- ' A030LC>13 " � s � Back to Agenda Page 121 of 263 Back to Agenda ti9 I I I I I I �,�o ' I I to l U et rn mmlllnn t \ mlmmm�allmnlunn II �oc��U� IShor4 and ITidel� nds �f Sad ey I l r .o N 88`26' W 256.00 .— U I I Block 16 I ,�,-��, o 0 o y g Lot 1 Lot 2 Lot 3 Lot .4 I Lot 5 I Lot 6 / o o. p, I I I I I I I �o� s I I A o I I 1 x ` Qr� 33.07 o N 84`36'09" -------------- Concrete Scale 1 "=50' itsa Transit a Wa hin n on ?pal Corpo' Lion e� �, �5r I I I I I 25 75 ease u b -0 629 0 50 100 I W ncrete FI �Q3O Lu I a �Z o l I Z I W �`� �:; ''••... .- RyR°PARCEL - ry ;� LEASE22-OA9891.. o a (Port Managemen Agreemen 22-0 016) O --- 134800 6'09" iy - Toe ........... _ IZ� 70.14 A LEASE 22-OA2234 A' h °�k - I LEASE 22-OA98 1 "B kp�r0,. V., i �ti' ' - RlpRay 67.58 N 3 .1 " ,b 53.2 1 I I .'ii N78.57,05� N 88`11'09" E 83`49'01 r 32 \ +a... ere+ 83 N 88'33'39' W o $' lg7/(e%•i'GOISSI'K 1 4 N . N893339'W eti d ` ., r / 4 . I `I / LEASE 22-OA9891'D" 1 30:L d' r56.24 ii, . L / d= �� 1' ` Lu X:O-B ' I aroor ------------ - -,- w ,, N I I ock 1 �j ,: . iboae ew a _ R= , �d`` N?g t LEASE 22-OA 891E i / I Lot 6 LEd'SL+ 22= ,12234' __-- I ; co . r l a's'6p ' ' !/l t�633" K ('tie - CEASE -OA22 4-'E" w i o "' R' , t ' z rs eO� $6 I I Lot 5 I 3 N r , ^ a 63' ' vos 6p l = •r 6q y 9' LOt .4 'I / a.d` tt oN r N ryi �/ R=880� I s03" I +Lot 3 w 33' 7 O 1 b ca m /W / 1 "7 • / Gti < I 9 Ot �VV ��/try ^bi/ b / +d— = 109.57 93 .ta I ^ `� p I w c o / 6.•?S �' I Lqt 2 �V Lot i; /� / R= e�2.op .b� Lot 1 ro v I �(� �ZP�� 2 Lo 0 of 11 of r1 / ��/ �`+ (EASE 22-OA9891'F" ^v/W t S ads of Sic>�ne Av psetc`.�A ��M1�1 1�a� I r�'�?..o���� rS Lou a IW' v I I I I I; of I �, 2 11 .50 �1t 2 4 w N I� W "� �• ` LEASE - 91..C.. r ; i y . 4 11 - lw �' #: � .;.'ot l I I �V a N 88` 636 •-1 BLOCK l3 •3'i(.' : .+,�� silo {� $• 'y "' �.. i `� 1' a Ci 2I I I rmf1uif� �.'1: 1 s t I i j 3 ��• v. $ .. �/ Z I I I I I I No 2 ti l Ilse 1,Bn All' Trot— Trot— ort thg rt� tit ! - I�+, cv � of 4 Z ~ a � ' '3�UOiw � f' I 66' I N 88116'36" W '+a 1`� r �tL S 1 Fyn 4 a; I 3 n,�;' i I I I I � � 1 ,., •�, a I tr a� .S l � 33' 0\° Loth $9 3 oy Lot 2 Lot 8 z M n .° 69l F �� first dd'tion to Sidney I _ iwlr' Lot 9 ^i a 51 a'\A 9� All) olnn e page 101 plats I Lot 1 Exhibi howin <3 I I i I �� z► gg r3 I o I I '� - l PO OF EMEKT01Vf - y 14 ;" I I I I I, z I l i / I P rt M a ent Agreement 22-080016 4' Blt I I I �� E l i g g <>rs ��13 I I I I 65I i 3�09� I i Lease u b s 2 A�234 and Lease Number 22-OA9891 � 10r� I I I I 3A�Ay W� N 6 I i I as amended 2010 <>r I I I LOT 12 rbor Area and Shore and Tidelands of Sidney \, I LOT 11 AUDTOR S CERTIFICATE \ 4" c I LOT 10 I I I 11 fronting Filed for record this Cal day of YAC-p.6� 20fi6 at �� n portion of Block 13 �i •.-- 1` I / Section 26 Township 24N Range 1 East W.M. at the request and portion Ward C. Muller & Associates �� \ J- of Lyle R. Muller Un-Numbered Tract Licensed Land Surveyors' F of theLan�r oma�• Boundary arya Development Planning 1 Shore and Tidelands of Sidney • Boundary and Lot Surveys • Subdivision and Platting B • Construction Surveying f , F61043 04LCounty Auditor` ( y' being' in Portion of Government Lot 4 Over 50 years of Service to Kitsap and Olympic Peninsula OVAL LAND SURVEY NUMBER SW -NE 26-24-01-1-Opo6 SE -NE 26-24-01-1- 00D"I Section 26-1 Vwnship 24 North -Range 1 East W.M. 217 Sidney Avenue (360) 876-3443 Port Orchard, WA 98366 (360) 377-5951 Rel—1 rgnr 2008Ward part (wperrdndwst,r—a> AUDITOR'S FILE NUMBER ?_0Q D301013,5 Booker Page Filedbook 405 and "X" O 12 sheetS Job 5 2 7 2 — 1 Relcopyright in while cr part N personal uses resale is pr.hiMted Iry law - Page 122 of 263 . bml ZOA030I,0135 �� Back to Agenda w -, ooU i ................. N �•��� 04, ........... . .. ................................... \ VAl - N aWroximate134. J // / ° l ation Scale 1"=20' w z x z ap ro c 5 15 30 --p- Ximate N 86 r 0 10 20 40 \ ti�� ;f ., c .: A�6 ► `.:' F . 4 . • f f �28 5 cog � f, .. 77 �V ;� 8344100,. 2%4S` 1---__ _ \ � � f I , � `�j � :. :• .' -•. � 'r.' �'; •:." N-8�38-23. N 87°31'S�j light•,a; r f ' , os, a ef0 WV p We (� \ rr rr 2tie` N 6A ` N I * �9 Wet Vault r s F EAs -0 5 A f, " ` �,�j t', \� /� �� \ �i •.: IV( "�N! i f. .f V', i �d.. �n `V. j .• : �� ,X � ('•���` I �I - � Y � '3 �/ / I /I t f- •:f ��n��t ` Z. `� O � `�, � O `ems ��h Sr r8h .66.E . .rrn S �55� ' : •,yl��. `. S? � c �� ; 1 ". T I I I I i LEASE 22_ OA223CP 5 D ..; �.. N 00f;6S6":W-'4; 71\ It tv ' wer 1e t :. r .. I f .C'fr..�C \ 6, » f. 05 ---64_ par in sign ' 1 0, 20 ` I \\ —' �' ^ 3 Ott �f ".; 41 lV Soo� ,ot, par u sl ' O _ 1 \\ pile . �. �(_ - s . - ... Jr J x;�r�lt , n Alnen concretel� j _� /�O concrete_--• pile akaVi•4 .� .05 _ .I Lease No. !3 N EASE ?Z� B(CZ tPO22-(XN N. -° `���. N 83°15 4 ape/' rd> �G,• 6�°�6 11.95 R= 6.40 3 ! a� j \.� f• f �. '" AA*Y L= 12.99 $ N 86047 .5".. 'L• �; Z A= 116 1848� " , �.' ligh standard x4" fl •• �3 1h w m I R= 4.90 44 a,�g -/,,' c \�/ �A• :� o L= 5.95 N78 h standaOP .� ]In M I �4 f ner 92.63 N - A� e,� arb EASE 22-OA22351.C.. 55.62 T ho 0 36109 Exhibit owing ".. PO BlEMERTON v IN Lo 1 \ o 1 I or na ment Agreement 22-080016 ' 66 �' I ease Numbers-OA2235 \ V �UDITOR'S CERTIFICAT. as amended 2010 in Filed for record this day of f( c ps,� 20+6 at \ 5 ir I Harbor Area fronting K= M Section 26 Township �4N Range 1 East W.M. at the request . ti.•�°F /ti f L le R. Muller BlOClCS 11 and 1� Ward C. Muller & Associates o y of the Licensed Land Surveyors Shore and Tidelands of Sidney • Land Development Planning \ b a / • Boundary and Lot Surveys `, `I , .�%• bdivi on and Platting 38 V�V� It By portion of BY Su • Construction Surveying'.. gyp, 4 county Auditor Government Lot 3 Over 50 year of Service to Kitsa and Olympic Ip GIST�� 5� Ye P ympic Peninsula N,9L LAND ` , 217 Sidney Avenue (360)876-3443 SURVEY NUMBER SW -NE 2s-24-01-1-n00(o SE -NE 2s-��-01-1- ooc) l ,, _ Section 26-Township 24 North -Range 7 East W. M. Port Orchard, WA983ss (360)377-5951 AUDITOR'S FILE NUMBER 0 0 13� Book Page mCoPpn �8 Wa,d bh,lierwWAssociates ?, II 0� I g Sheet of 12 sheets J O b 5 2 7 2 1 Filedbook 405 and "X" " Page 123 of 263 - Z,a�� b3o1 o%35 �$ Back to Agenda o - Ncno Ln bo 60 �0)oe I .O Scale 1 Its z, 5 15 30 i 0 10 20 40 ; s 3 T _ ... V� Rock ............................................... appmo • { { 11 I a I ation _ LEASE—OA2235E t s t .• t { � a ly R, i I { alpap NJ 85 4{ 4 r 83b.t' a ,qN s ®" F• ;APj - �o�ation 9 03 High N 7°3115 96 � "Ood light — ------ ' 6� < ! * { f . o �. F,• i X�(J { /. V WatBf C J r 5 "' — ,�,�e N h N , , • , 1 s, ete� `�, Vain 8 . top { �y 8 A {• N 88° 11'2.3 W 9 � �f� .N � � F I�h� Q3a /•r .'F._�� _ -� �``� V i � O 5, p f • . ��''tfs•iMc1'%k'. {..4s'%� { r .{ \`\ r% .� _ 1 er 6 VO (/, '7arr/ r1. f . �� •sG�ete�f. V \\\ ��S `�`iJ, O LJrL1� �a �a�a� 11 n II i <• f �Of O4 / L AV powlerp0/e49 l0 , ` ► { S �'T�" 7.05 20" -- 64 W NBoo -_- \\ par in sign �' ; sr "t F� �'• � <• _ - - Lo :.�Amended< •� as d� Harbor 6" r a 0 Lea) 4305.. e ,3, a " EASE 22-OA 235 B o. 2 (CitypP0.2 frt ��o I s R= 6.40 L- 12.99 A= 116018'48" o- 69°36'09" �,IlX4" Exhibit Sho2Uin - light standard ... ... I � R= 4.90 N .2. �/q - ` 9 o l L = 5.95 �8 PO O BREMERTON #5 try Po M a en t Agreement 22-080016 Inner 92.63 ase Numbers 22-OA2235 , as amended 2010 aiHrbor.AUDITOR'S CERTIFICATE in ...... Harbor Area fronting Filed for record this 'D1 day'of Y�)c4ajoXN 201-O at 1-5 ►n ti g. U Blocks 11 and 1 Section �ownsh►p�Rsn,,e 01 E W.M. at the request ti : •'oF , Ward C. Muller & Associates c of Lyle R. Muller of the Licensed Land Surveyors Shore and Tidelands of Sidney . Land Development Planning Lot : L1$ being portion of • Boundary and Surveys O 6 • Subdivision and Platting S y .} •Construction Surveying 30438 � County AUdI[Of N-WGovernment Lot 3 `fro t �►StE��AyO`r Over 50years of Service to Kiteap and Olympic Peninsula L LAND Section 26-Township 24 North -Range 1 East W.M. 217 Sidney Avenue (360) 876-3443 SURVEY NUMBER SW -NE 26-24-01-1- DOD(o -NE 26-24-01-1-C-,cog- Port Orchard, WA 98366 (360) 377-5951 R Y''o.�2"" Ward Mdkragd �P,, b,,M AUDITOR'S FILE NUMBER ZW JD301 D 13 Book 15 Page Filedbook 405 and "x" Sheet 8 of 12 sheets J O b 5 2 7 2 -1 Page 124 of 263 20��03o�0�3S _ 75 - 59 - Back to Agenda N N w II / 111111111111111111111 w LEASE 22-OA2235 E _ w `dip �Q .33.07 N 84 �30 , tigh 09 W oax . _ N 'toP o z o J It, H a, 9 .lam• r `� \_� �`�,��/ �00p �' •�i, 7.3 . Scale 1 "=20' o 7 a 15 30 I�2xs2 :r. .. *r • ..NHS°�.,'3 p pi��p-fi r �d 0 10 20 40 a� U. LLI - r.E• � � r Ur•; m fli alioq ~�? E i / . F r �E� lQ ' /17 a'dt 012 In 4s t .-trap r r • s.. I f .r • c gip: ,1S 3 1, f• f �-- y fire M• V,w 6 ware - r • eter �'•� r r ssa v 6 6 1* standard o�t /V�19 O� 6 �BSS pCdt/p r jC n ass cre ¢ta CO fire h Brant f i h andard Rip -Rap !' meter. �t �.` 1` C)t r ' r : t ........... - r 1 i%Ij ' C` rr s r. 4 , r "alter p 6, L,. fir; •; i 0�7 1 olj�,� r. • f ©- Bras sta `� t f. N 4800 p P w f r A, s a''a-oncrete arri' r.Op 0 5 � 7 �, •• water uh 9 — 62 • 00 r. 1v et er i ,• le r.$3re li�dr�n \� bank M 4 , , r t_; approximate r• r. gta r r t N c N x . f SSa�4 `: r : •. ,:.✓, i CO/j , �M Y:.�• 'E' ' r Q&,eS. ► 6 0 t <; ht • • • • • � ... ' L4r� Q� ' ' r: r • r' DD o F �•- ` V� •• - "' � . to ` Y r •_ t standard r• r.� r �. 5- 62 , • +. � � M nor �. po po a rt • ..Exhibit Showing PORT OF BREMERTON I Port Management Agreement 22-080016 ; F f • Lease Numbers-OA22t3 and 22-OA2235 I �•. • Y as amended 2010 : r f: • ' ., in.r < LEASE 22OA2234 .. .- . h Harbor Area and Shore and Tidelands *_ I. fronting Portion of Blocks 12 and 13 r j -!k •. r t standard of the Shore and Tidelands of Sidney :. r • of : ; .r I • •,� being in AUDITOR'S CERTIF'ICA E_ I or1 o Government Lots a and 4rr' L t p f Section 26-Township 24 North -Range 1 East W.M. Ward C. Muller & Associates Licensed Land Surveyors • Land Development Planning • Boundary and Lot Surveys • Subdivision and Platting • Construction Surveying Over 50 years or Service to Hitsap and Olympic Peninsula 217 Sidney Avenue (360) 876-3443 Port Orchard, WA 98366 (360) 377-5951 2M Wart) C !duller and Associates Enoin whole a pat tw personal use ar resale is p hdAed by law Filed for record this O1 day of Y`(lC,pCh 20-f6 at 1: 5 in r r =• Section 2LTownshipo' Range 01 E W M. at the request I of Lyle R. Muller f l By: , I County Auditor SURVEY NUMBER AUDITOR'S FILE NUMBER 0�1�'SOIO135 Book Page Fiiedb aosand•x� Sheet �9 of 12 sheets a�Ob 55272— 1 Page 125 of 263 Back to Agenda N Concrete Float vase' y cv Kitsap Transit a Washing on Municipal Corporation M' ease Numb 22-002629 �r'� , N o�x ,- V. R o Lu Concrete float -12 t " „tea o 1 �M�� M N o Scale 1 =20 • 5 15 30 f. 0 0 10 20 40 } I i N 88 cl-6'36 ft W =,� < 175.00 I 1 f ' .. � - � _ tom' �- 2 1 tigh f: - O PMA 2-0800 6 �:.' .. O f Rip -Rap PARCEZ `� o , 'l I t°� O •._.....::............ or ana ement A regiment ��-0800Y 6 0 i w 9' 9' �, •' 'f ate O................................... �---------Toe.... V.' : 73 C • OO ao .................................... S 0. 4 5 1 2- A22 4' A' ��` water.` - f --_Q( _� 9 �, kI eter� ult _ - _ .. Roc-._t.. _. w ff ire hydran .. \� ba,�k m c �( on a < .f -.. f - #' ' $_ . # s7,J .. � , approximate 6 7. 58 30• 1 I I I <• ` Kassa .�: f t< ON f f: N 88°11'09 3°4 t an a 5 2 High -- ----- Water Mean F.. f•.. F . �•� t . •..;' ., 4� w N W r� c3. f6 tt ---------------- M ��o. e� �.� N 88 25 05 Vl/' p� f t` a 6 ;y Rod fnr�2'25 e` . • f N 033 9" W �,c0� to• .. ,1,' f f t: fF Q•i ' ��. ht f'. Y { ;.t .f-; •'r.. ,. •, . V , / , G f. f { f f f ' ` f<' V f :0f C.') tf.. �� r.. f• `f <.f f !f i f Y .:f` x.' < r f �' I'`•y '< < r. f r f' ►� M �Gr o i n f I ----__ �lN 1.0 cs;` G�aS�t� N 88 33 39 W 156.24 �. r 4 f. 4 Harbo I �\ - i y� li t tandard . I .i , t , V I .'• ♦* : • f.. • ' SM ..: f f"• t . r • f f C.Vtf%l.I a.. �GWQ ' f < Y. _ I �V — 4 4 •. ' LFASE 22 A2234 ro. LEASE22—OAzz 41.C11 { Lot -� Exhibit Showing o PO O BREMERTON Ina ent Agreement 22-080016 I S �'L(�s o Si ne .� ► I L e tubers 22oA2234, 22oA2235 ' I I '� o as amended 2010 DIT R'S CER FICATE • ° I in I I �' Harbor Area fronting k R• or record this _ ay of CA 20+8 at �_S_in �' �....... _ �' Lots 1 thru 8 Block 13 Section 26 Township 2.�N Range 1 East W.M. at the request ' Ward C. Muller & Associate of Lyle R. Muller of the y Shore and Tidelands of Sidney Licensed Land Surveyors I • Land Development Planning " • Boundary and Lot Surveys •t7 . ; being portion of • Subdivision and Platting 38 \ B y Government Lot 4 • Construction Surveying � ' � p: ' `�r,''`eeatsi�t�� o¢ County Auditor Over 60 years of Service to Kitsap and Olympic Peninsula °N.�L LAND 5 Section 26-Township 24 North -Range 1 East W.M. 217 Orchard, Avenue (360) 8763443 SURVEY NUMBER SW -NE 26-24-01 -1 -DID (A SE -NE 26-24-01-1- (XD9 Port Orchard, WA 98366 (360) 377-b9b1 ` « nW"WPM �dw« "p,.hb..dbyI" AUDITOR'S FILE NUMBER ?A�N=l i�3•� Book _Page Filedbook405and•x": Sheet 10 of 12 sheets ller Job 5272-1 Page 126 of 263 Back to Agenda LEASE 22 - OA 9891 zap I I �_ ..�., o i Rock I I _ LEASE 22-OA98 1 I,B 11 �, Lp-Rap � I I........... r057'05„ � ►� o Water I:zr11 . /�----------------------� 32 83 co .� �/ i of E `; .�'f• • wag `v � 1St � •,� � i t f. f• ;ret�twa/k `` f t 14f..� .. i aPproXimat /C J —50 —g776 ' i Scale 1 wood li h tandard \' , 5 15 30 O o a �.,9, 97. N N t . I � I I � Q � 3 0431701, 43 t �t /9S /O'r'aiion �., i M 0 10 20 40 I I I = w tandard 70/�� 9 OS 60 t� O _ LLJ O (ss ' W I R, 74 M t Mean I\ wood light s 90S, 6p ) Q 70 cy t 144 / N N ^1IN- ' o4 T Imo/ /►� / d-6 H LO � K I r � / / / M wood fight st �V,LO J tz o gX` L© 0 t 1 Lot I� ','' N *S:E::d" I Z i/ i x ko _ W x • 11 .50 I /, c� _ d LEASE — 0 91 X t f G a 36 )CK 13 �qncreI _ f ..Y 891 .� . " . v elV Or e Ttide o i de apt ig Exhibit Showing _ I loe Y eroe PORT OF BREW I 4 z Lease Number 22-OA9891 as amended 2010 , (4 3� �2 in Lari �. i y 59.97 k' Un-Numbered Tract of Shore and Tidelands of Sidney O adjacent to and abutting N 88 °16'36 „ w g I _w a 1 1 a t5 Lots 1 thru 10, Block 1 of the I �• '0.1 N 0 Plat of Bay Street Addition to Port Orchard being portion of I 3 1 I o�' M W ''v � H • '4► Government Lot 4 00 Q, f Section 26-Township 24 North -Range I East W.M. AUDITOR'S CERTIFICATE I o `b . Filed for record this day of (� 20�6 at ►n yp�j O 7 , R--•M_ Section 26 Township g4N Range 1 East W.M. at the request Ward C. Muller & Associates of Lyle R. Muller' �, u., I Q Licensed Land Surveyors . Land Development Planning let( • Boundary and Lot Surveys d : ttr • J ty - Lle • Subdivision and Platting S \ �/V-� n By: (y� I LO� V LOr • Construction Surveying rilSThR�p �¢ County Auditor n Over 50 years of Service to Kiteap and Olympic Peninsula I�NAG ANC 9 % . n t IC 217 Sidney avenue (380) 876-3443 L SURVEY NUMBER SW -NE 26-24-01-1- DOU. SE -NE 26-24-01-1-000q _ _ . • Port orchard, WA 98366 (360) 377-5951 Sheet 11 O 12 sheets �1 O b 5 2 7 2 °cow'l1Z008NhrdCW)w"'dAssmia"' AUDITOR'S FILE NUMBER l Book Page j2 Fiiedbookao5and nx• f Repnduc nn in whole or pat for personal use or resale is prohibited by law Page 127 of 263 O% Z ab0� o 3 -�5 Back to Agenda s!iaa is o 6VI a-SvId'6t 4009ui Pallf PuV Z.9Z060f jaqtunN al?3 ,soh ppun pap.mia.t haruns uo umays sn auiaihs loaluoa of — — .� � --- — -- — • . �--, - _ oaf su . 117S 104110J (NgVH) 4-10mlaN aouaeafag venaad y%H µ , o Sall ( d�) lualsfiS 81411,10.1sod 1 i104p44a sn Is/£SadN Y o `, O7 a, � '. •vim. •�� „ . ali l!#AoN uialsfiS almpu uol 21stiM uodn pasvq s%ui wag y. V \ L PT it OTN r _-- �w �. �� �� OIa� yK Whl I M IN OQ PIN .Fit vco N cri jao�� w N o era b ----------- _ � �; N � O. b •ail a l W N QTT - � T 1, `i •�` cgs M 1 �l Itljld `?� S, - pal a L t '��t zl Z� o 0 co , QQ o _ � "9E;1 yToZ d41Z1, - uiseq 9P'6 J 1 6' _ ---- -- --- --- ---- - - N 015� ,V _ ^ [" �a uP I lot -- — IS SUI pd it us, i�aed uhis 4.red o �. --- - -- 8� --- 11kX Ilk x x ANN t 9L 'Z05 3 „ P67, t N zt „ J lao ; °�.�a �� z/o��a ;, CIOIda :96 o -1aplr 11l al cA..�°d o �j Wa blft' zr lad s .roll 20 .r-�,`s' '�� ,� ,iapzf q�irn a v� l�s b1'�b�JP11,0 �nb' ' \ _ _� p �g l 1 j — �bl — --- 3-- ------ uhis � 5 t t O �.. p r- ZI Et Io t N ap 3„ t 3 ,, t�Z, Et�o T N --- 'Z l l t o �; 9t ' 9l -� ------------ - �C' N . N ,� l N ` N , 8s,�� o o � 9 �� �� S� N i 't Showing N ti O' o O OF BREMERTON N _ O ^ L as 2 ber 22-DA9891 as amended 2010 W in °' x � I - U ered Tract of Shore and Tidelands of Sidney AUDITORS CERTIFICATE t� n adjacent to and abutting R M filed for record this _day of " 20f6 at 1_ n Lots 1 thru 10, Block 1 Ward C. Muller &Associates y, . of " Section 26 Township ��N Range 1 East W.M. at the request of the Licensed Land Surveyors ,a : P of Lyle R. Muller • Land Development Planning Plat of Bay Street Addition to Port Orchard • Boundary and Lot Surveys .d ` being 'portion of • Subdivision and Platting • Construction Surveying 38 By' Government Lot .� Over 60 years of Service to Kitaap and Olympic Peninsula �F,S%' R- COU my UCi ItOf f Cisxf J 217 Sidney Avenue MO) 876-3443 �N�L LAND e Section 26-Township 24 North -Range 1 East W.M. Port Orchard, WA 98366 (360) 377-5951 SURVEY NUMBER SW -NE 26-24-01-1- RISE -NE 26-`24-01-1- b00cl o copyri 2ooe Ward C Milk-r end AssockVeS kp,.h6k"'�l-" AUDITOR'S FILE NUM13ER2Q D3j*(Z5 Book Page f Sheet 12 o 12 sheets JOb 5272-1 Filedbook 405 and "X" Page 128 of 263 A. dM dmmm�i i 991 201109290042 09/29/2011 10:00:37 AN Back to Agenda EXHIBIT B PLAN OF OPERATION AND MAINTENANCE 1. DESCRIPTION OF THE PERMITTED USE A. Existing Facilities. The Lease area consists of historically fille eTan4\ currently used as parking area, public access, utilities, and uppo structures. The Lease area includes a rock bulkhead, the p is a e board and small portions of two buildings. There are water -de a ent use atery of the bulkhead. For rent calculation purposes, the bulkhea ter - dependent landward of the high water mark. Only e public access boardwalk is eligible for no fee use. B. Proposed Facilities. No changes to t7tide nfras ctur dare proposed under this Lease. 2. ADDITIONAL OBLIGATIONS A. Upland Operations (histor' Iy fillThe current operations and maintenance of the parking ar getated buffers, and boardwalk structure are to be conducted using best professio dgment. The Port will conduct reasonable maintenance to avoid exce Me 1 st ' 1 on surfaces and to control garbage or wind-blown debris. Spec f at e ti is o be paid to water quality resulting from refinishing surfacl;!�\ No o t ina are to enter the receiving waters as a result of operations or mai ante to water runoff is to be conveyed via a permitted municipal st at stem. Specific Best Management Practices (BMPs) can be in th t recent version of the Washington State Department of ology mwater Management Manual for Western Washi n B. pai Reconstruction. O ead. y major repairs to the rock bulkhead requiring a shoreline ermor involving more than ten (10) cubic yards of material must be a rove y the State in writing prior to construction. Emergency repairs m conducted with verbal approval of the State. Any reconfiguration the bulkhead will be reviewed by the State in regard to biological and vironmental impacts and must be approved in writing. oardwalk. Any major repairs to the boardwalk structure must be approved in writing by the State. The State may require materials and design modifications to avoid or reduce impacts to water quality or to reduce shading impacts. Treated wood may not be used in areas in direct contact with marine waters. Porto $ ernerton WestInd Port Orchard Page 33 of 33 Aquatic Lands Lease No. 22-BO2235 Page 129 of 263 Back to Agenda City of Port Orchard ,, + �.,. , : 216 Prospect Street, Port Orchard, WA 98366 r �gti�, � (360) 876-4407 • FAX (360) 895-9029 au;� ,.. Agenda Staff Report Agenda Item No.: Business Item 7F Subject: Adoption of a Resolution Approving a Contract with All Around Fence Company for the Bay Street Pedestrian Pathway Repairs Meeting Date: December 20, 2022 Prepared by: Tony Lang Public Works Director Atty Routing No. Atty Review Date 366922-0009 — PW December 12, 2022 Summary: A portion of the City's Bay Street Pedestrian Pathway and infrastructure was damaged due to a bus collision that occurred on July 6, 2022. In response to this incident and by this Resolution, the City Council would authorize the Mayor to execute a contract with All Around Fence Company for the Bay Street Pedestrian Pathway Repairs (the "Project"). To select this consultant, on October 18, 2022, Public Works staff established a list of qualified contractors from the 2022 MRSC Small Works Roster for the Main Category — Concrete and Masonry, Marine Construction, Site Improvement, Repair and Maintenance and Sub Category — Concrete Cutting and Sacking, Concrete Flatwork, Brea kwall/Seawall/Breakwater Construction, Repair, and Maintenance, Fencing and Gates. Pursuant to the City's Procurement Policies adopted by Resolution No. 036- 22, as amended (see Section 5 — Bid Procedures), the Public Works Department issued an email Invitation to Bid on October 18, 2022 for the Project to all Contractors on the Roster. As of the November 8, 2022, 12:00pm deadline no bids were received. Pursuant to RCW 35.23.352(1), City staff then reached out directly by phone to four (4) qualified contractors, soliciting proposals for the associated repairs. All four contractors submitted proposals, and All Around Fence Company was deemed the presumed responsive and qualified low bidder from the proposals received. The bids received were as follows: Name of Contractor Bid Total All Around Fence Company, Inc $18,491.93 Chinook Contractors $22,925.00 Pacific General Builders, LLC $60,130.68 Tikar Services, LLC $31,407.56 On December 6, 2022, the City's Public Works Department Staff completed the MRSC Mandatory Bidder Responsibility Checklist and determined that the All Around Fence Company bid of $18,491.93 (applicable tax included) was the lowest qualified bid. The Public Works Department has confirmed that the bidding procedures for Public Works have been followed. Recommendation: Staff recommends that the City Council adopt Resolution No. 107-22, authorizing the Mayor to execute Contract No. C116-22-22 with All Around Fence Company for the Bay Street Pedestrian Pathway Repairs in the amount of $18,491.93. Relationship to Comprehensive Plan: Chapter 8 - Transportation Page 130 of 263 Back to Agenda Staff Report 7F Page 2 of 2 Motion for Consideration: I move to adopt Resolution No. 107-22, authorizing the Mayor to execute Contract No. C116-22 with All Around Fence Company for the Bay Street Pedestrian Pathway Repairs in the amount of $18,491.93. Fiscal Impact: The cost of the repairs will be reimbursed through Insurance. Alternatives: Do not approve and provide further guidance. Attachments: Resolution No. 107-22 Small Works Contract No. C116-22 Page 131 of 263 Back to Agenda RESOLUTION NO. 107-22 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, APPROVING SMALL WORKS CONTRACT NO. C116-22 WITH ALL AROUND FENCE COMPANY FOR THE BAY STREET PEDESTRIAN PATHWAY REPAIRS AND DOCUMENTING THE SMALL PUBLIC WORKS ROSTER PROCUREMENT PROCEDURES. WHEREAS, the City identified the need for repairs to a portion of the City's Bay Street Pedestrian Pathway that was recently damaged, referred to as the Bay Street Pedestrian Pathway Repairs project (the "Project"); and WHEREAS, as performed annually since 2013, the Municipal Research and Services Center of Washington (MRSC) solicited on behalf of participating local government agencies within Washington State (including the City of Port Orchard), for the 2022 MRSC Small Public Works Roster for small public works projects, like this Project; and WHEREAS, on October 18, 2022, pursuant to RCW 39.04.155, the City's Public Works Department established a list of qualified contractors for this Project from the 2022 MRSC Small Works Roster (see Exhibit A attached) for the Main Category — Concrete and Masonry, Marine Construction, Site Improvement, Repair and Maintenance and Sub Category — Concrete Cutting and Sacking, Concrete Flatwork, Brea kwall/SeawaII/Brea kwater Construction, Repair, and Maintenance, Fencing and Gates; and WHEREAS, on October 18, 2022, and pursuant to the City's Procurement Policies adopted by Resolution No. 036-22, as amended (Section 5.0 Bid Procedures), the City's Public Works Department issued an email Invitation to Bid for Bay Street Pedestrian Pathway Repairs to all MRSC Small Works Roster Contractors on the list; and WHEREAS, by the November 8, 2022, 12:00 pm deadline no bids were received, City Staff then reached out directly by phone to four (4) qualified contractors on the roster and all four submitted a responsive bid with All Around Fence Company providing the lowest qualified Proposal for the Project; and WHEREAS, on December 6, 2022, the City's Public Works Department completed the MRSC Mandatory Bidder Responsibility Checklist on All Around Fence Company and confirmed the company was qualified, responsive and responsible; and WHEREAS, the Port Orchard City Council, at the 2015 recommendation of the State Auditor's Office, wishes to document their selection/procurement process as described above for this particular contract by Resolution; now, therefore, Page 132 of 263 Back to Agenda Resolution No. 107-22 Page 2of2 THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES /_ -11fal wGIT53 THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. THAT: The City Council approves and authorizes the Mayor to execute Contract No. C116-22 with All Around Fence Company for the Bay Street Pedestrian Pathway Repairs. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage on this 201h day of December 2022. ATTEST: Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 133 of 263 Back to Agenda CITY OF PORT ORCHARD SMALL WORKS 35K AND UNDER CONSTRUCTION CONTRACT NO. 116-22 PUBLIC WORKS PROJECT NO. PW2022-020 THIS AGREEMENT is made effective as of the 20th day of December 2022, by and between CITY OF PORT ORCHARD, WASHINGTON, ("CITY"), a Washington municipal corporation located at: and 216 Prospect Street Port Orchard, Washington 98366 Contact: Mayor Robert Putaansuu Phone:360.876.4407 Fax: 360.895.9029 All Around Fence Company, ("CONTRACTOR"), a Washington corporation located at: 13602 Pacific Ave S Tacoma, WA 98444-4744 Contact: Nicole Jacintho Phone: 253-863-4895 Email: allaroundfence@allaroundfencewa.com for the following Project: Bay Street Pedestrian Pathway Repairs ("PROJECT") In consideration of the mutual benefits to both parties, both Parties agree to the following: AGREEMENT: 1. Contract Documents. The Contractor shall complete the Work described in the Contract Documents for the Project. The following documents are collectively referred to as the "Contract" and/or "Contract Documents": a. This Agreement signed by the City and the Contractor; b. Division 1 of WSDOT Standard Specifications for Road, Bridge and Municipal Construction, 2022 edition, together with APWA Supplement (1-99), subject to specific provisions contained within the Public Works Terms and Conditions; c. The attached Special Provisions, Plans and Specifications; City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 134 of 263 Page 1 of 50 Back to Agenda d. 2018 International Building Code (IBC) and 2018 Energy Code Compliance. e. Written change orders or orders for minor changes in the Work issued after execution of this Agreement; f. Public Works Terms and Conditions; g. Insurance and Bonding Requirements; h. The Invitation to Bid, and bid proposal submitted by the Contractor, except when inconsistent with Contract Documents a-g; i. 2019 Public Works Engineering Standards; j. Appendix A: Non -Discrimination Statutes and Authorities; and k. The bid proposal submitted by the Contractor, except when inconsistent with Contract Documents a-j. I. IF A GRANT APPLIES TO THIS AGREEMENT, THE GRANT AGREEMENT BETWEEN THE CITY AND THE FUNDING AGENCY SHOULD BE MADE PART OF THE CONTRACT DOCUMENTS. All of the above listed Contract Documents are each made exhibits to this Agreement and are incorporated into the Agreement as if set forth in full. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. These Contract Documents complement each other in describing a complete work. Any requirement in one document binds as if stated in all. The Contractor shall provide any work or materials clearly implied in the Contract even if the Contract does not mention it specifically. 2. Date of Commencement and Substantial Completion Date. The date of commencement shall be December 20t", 2022. The Contractor shall substantially complete the Work not later than March 315t, 2022, subject to adjustment by change order. 3. The Contractor shall do all work and furnish all tools, materials, and equipment in accordance with the above -described Construction Contract Documents. The Contractor shall provide and bear the expense of all equipment, work, and labor of any sort whatsoever that may be required for the transfer of materials and for constructing and completing of the work provided for in these Construction Contract Documents, except those items mentioned therein to be furnished by the City. Contractor represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices in effect at the time such services are performed. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 135 of 263 Page 2 of 50 Back to Agenda 4. Subject to additions and deductions by change order, the construction maximum payment is the base bid amount of $18,491.93 (applicable sales tax included) (hereinafter "Contract Sum"). The construction Contract Sum shall include all items and services necessary for the proper execution and completion of the work. The City hereby promises and agrees with the Contractor to employ and does employ the Contractor to provide the materials and to do and cause to be done the work described in the Construction Contract Documents and to complete and finish the same according to the plans and specifications and the terms and conditions herein contained; and hereby contracts to pay for the same at the time and in the manner and upon the conditions provided for in this Contract. S. The Contractor agrees to comply with all state and federal laws relating to the employment of labor and wage rates to be paid. The Contractor agrees to furnish insurance of the types and in the amounts set forth in the Construction Contract Documents. The Contractor warrants that it is licensed and authorized to do business under the laws of the State of Washington and has not been suspended or debarred in the past three (3) years. 6. The Contractor agrees to repair and replace all property of the City and all property of others damaged by Contractor, Contractor's employees, sub -contractors, and agents. 7. The Contractor does hereby agree to the full performance of all the covenants herein upon the part of the Contractor. Such agreement shall be binding upon Contractor's heirs, executors, administrators, successors, and assigns. 8. It is further provided that no liability shall attach to the City of Port Orchard by reason of entering into this Construction Contract, except as expressly provided herein. 9. Title VI. The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts comply with these regulations. Also, in accordance with Title VI, the City is required to include the following clauses in every contract subject to Title VI and its related regulations. Therefore, during the performance of this Agreement, the Contractor, for itself, its assignees, and successors in interest agrees as follows: a. Compliance with Regulations: The Contractor will comply with the Acts and the Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 136 of 263 Page 3 of 50 Back to Agenda amended from time to time, which are herein incorporated by reference and made a part of this Agreement. b. Nondiscrimination: The Contractor, with regard to the work performed by it during this Agreement, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Agreement covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. c. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor's obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. d. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. e. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the Non-discrimination provisions of this Agreement, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: 1. withholding payments to the Contractor under the Agreement until the Contractor complies; and/or 2. cancelling, terminating, or suspending the Agreement, in whole or in part. f. Incorporation of Provisions: The Contractor will include the above provisions of paragraphs 9.a through 9.f in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 137 of 263 Page 4 of 50 Back to Agenda direction, the Contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States. 10. Public Records Act Chapter 42.56 RCW. Contractor understands that her/his bid response documents, and any contract documents may be subject to release under the Public Records Act Chapter 42.56 RCW and the City may be required to disclose such documents upon a request. Contractor acknowledges that s/he has been advised to mark any records believed to be trade secrets or confidential in nature as "confidential." If records marked as "confidential" are found to be responsive to the request for records, the City as a courtesy to the Contractor, may elect to give notice to Contractor of the request so as to allow Contractor to seek a protective order from a Court. Contractor acknowledges and agrees that any records deemed responsive to a public records request may be released at the sole discretion of, and without notice by, the City. 11. Warranty. Upon acceptance of the contract work, Contractor must provide the City a two- year warranty bond in the amount of twenty percent (20%) of the contract price a form and amount acceptable to the City. The Contractor shall correct all defects in workmanship and materials within two (2) years from the date of the City's acceptance of the Contract work, including replacing vegetation that fails to thrive. In the event any parts are repaired or replaced, only original replacement parts shall be used —rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) additional year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 12. Indemnification. Contractor shall defend, indemnify, and hold the City, its officers, officials, employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Contractor's performance of this Agreement, except for that portion of the injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 138 of 263 Page 5 of 50 Back to Agenda IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this agreement. 13. Miscellaneous Provisions. a) Non -Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. b) Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the Kitsap County Superior Court, Kitsap County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XII of this Agreement. c) Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. d) Assignment. Any assignment of this Agreement by either party without the written consent of the non -assigning party shall be void. If the non -assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. e) Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 139 of 263 Page 6 of 50 Back to Agenda f) Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this Agreement. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. g) Compliance with Laws. The Contractor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Contractor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS WHEREOF, the parties hereto have caused this contract to be duly executed on the date first written above. Robert Putaansuu, Mayor By: Its: ATTEST/AUTHENTICATE: Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: Charlotte A. Archer, City Attorney City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 140 of 263 Page 7 of 50 Back to Agenda CERTIFICATE AS TO CORPORATE PRINCIPAL I, (Corporate Officer (Not Contract Signer)) certify that I am the (Corporate Title) of the corporation named as the Contractor in the Agreement attached hereto; that , (Contract Signer) who signed said Agreement on behalf of the Contractor, was then (Corporate Title) of said corporation; that said Agreement was duly signed for and in behalf of said corporation by authority of its governing body, and is within the scope of its corporate powers. Corporate Seal Corp. officer signature (not contract signer) Printed Title State of County of ss , (corporate officer (not contract signer)) being duly sworn, deposes and says that he/she is (Corporate Title) of (Name of Corporation) Subscribed and sworn to before me this day of 120 City of Port Orchard and All Around Fence Company BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Notary Public (Signature) Notary Public (Print) My commission expires Rev. Page 141 of 263 IBDR 4-2022 Page 8 of 50 Back to Agenda CITY OF PORT ORCHARD PUBLIC WORK PROJECT TERMS AND CONDITIONS The following terms and conditions shall be used in conjunction with the Standard Specifications for Road, Bridge and Municipal Construction, 2022 edition, together with the APWA Supplement (Section 1-99), as issued by the Washington State Department of Transportation and American Public Works Association, Washington State Chapter, hereinafter referred to as the "standard specifications". The standard specifications, except as they may be modified or superseded by these provisions, shall govern all phases of work under this Contract, and they are by reference made an integral part of these specifications and Contract as if herein fully set forth. When the provisions of the standard specification conflict with the terms and conditions as contained herein, the terms and conditions shall prevail. 1. BID PRICE: The bid price(s) shall include all necessary permits, fees and items of labor, material, equipment, tools, overhead and compensation, supplies, taxes, utilities, and other incidentals necessary to complete the work in a fully functional and operational state. All prices including bid prices are in US funds. 2. DEFINITIONS: The term "City" means Port Orchard, Washington, "successful bidder" means the apparent lowest and best responsible bidder to whom an award is made, and "Contractor" means the successful bidder who has satisfied the requirements for the award and who receives a contract executed by the City. "Bidder" means the person, firm or corporation that has made an offer in response to the invitation to bid. "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. 3. LICENSING AND REGISTRATION: The Contractor must have a Washington State certificate of registration per chapter 18.27 RCW; a current state unified business identifier number; and if applicable, industrial insurance coverage for the bidder's employees working in Washington, an Employment Security Department number, and a state excise tax registration number. In addition, the bidder must not be disqualified from bidding on any public works contracts under RCW 39.06.010 or 39.12.065(3). 4. PUBLIC WORK REQUIREMENTS: This project constitutes a public work under state law. Bidders are warned to take into consideration statutory legal requirements, particularly, the payment of prevailing wages and fringe benefits, payment and performance bonds and sales tax implications in making their bids. It is the sole responsibility of the bidder to ensure that the appropriate labor classification(s) are identified and that the applicable wage and benefit rates are taken into consideration when preparing their bid according to these specifications. The Contractor shall complete and file State of Washington, Department of Labor & Industries, Statement of Intent to Pay Prevailing Wages and Affidavit of Wages Paid forms and shall familiarize itself with their City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 142 of 263 Page 9 of 50 Back to Agenda requirements. The Contractor shall also be responsible for and pay all costs pertaining to the processing of these forms. 5. PREVAILING WAGES: The Contractor shall pay prevailing wages as required and shall comply with Chapters 39.12 and 49.28 RCW. Prior to beginning work under this Contract, the Contractor shall submit -- on behalf of itself and each and every Sub -Contractor — a "Statement of Intent to Pay Prevailing Wages," which must be approved by the Department of Labor and Industries (See link below.) Following the final acceptance of the project, the Contractor must submit -- on behalf of itself and every Sub -Contractor -- an "Affidavit of Wages Paid" for final payment. Final payments shall be made in accordance with the requirements of Chapter 39.12 RCW. Refer to http://www.Ini.wa.gov/TradesLicensing/PrevWage/WageRates/defauIt.asp for Washington State Prevailing Wage rates. 6. INSURANCE REQUIREMENT: The successful bidder will furnish insurance as stipulated in the Attachment entitled "Insurance Requirements." 7. RECEIPT OF ADDENDA: All official clarifications or interpretations of the bid documents will be by written addenda only. 8. PROJECT COMPLIANCE: In compliance with the request for quotation, Bidder hereby proposes to perform all work for this project in strict accordance with the Contract Documents, at the Contract Sum, and within the time set forth herein with the understanding that time is of the essence in the performance of this Contract. 9. TAXES: Proposals shall include all applicable taxes except sales tax, which is a separate bid item. It shall be the Bidder's responsibility to furnish Federal Excise Tax Exemption Certificate, when applicable. 10. ERROR IN EXTENSION: Unit price, when used, shall govern in case of extension error. If a discrepancy between the numerical unit price and the written (words) unit price is found, the written (words) unit price shall control. 11. PERMITS AND FEES: The Contractor shall furnish all permits, inspection fees, and fees required in the performance of this Contract, including those charged under RCW 39.12.070 by the Department of Labor and Industries for the approval of statements of intent to pay prevailing wages and the certification of affidavits of wages paid, etc. The Department may also charge fees to persons or organizations requesting the arbitration of disputes under RCW 39.12.060. The Contractor is responsible for all fees resulting from these statutes. 12. CONTRACT: The Contract, when properly signed, will be the only form that will be recognized by the City as an award. The executed Contract supersedes all previous communications and negotiations, except as referenced herein, and constitutes the entire agreement between the City and Contractor (Parties), except as provided herein. The Contractor shall not make any City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 143 of 263 Page 10 of 50 Back to Agenda changes, alterations, or variations in the terms of the Contract without the written consent of the City. No terms stated by the Bidder in its proposal shall be binding on the City unless accepted in writing by the City. The successful bidder may not assign the Contract resulting from this invitation to bid without the City's prior written consent. No waiver by the City of a breach of any provision of the terms and conditions outlined in the invitation to bid shall constitute a waiver of any other breach of such provision or of any other provisions. 13. CHANGES: The City may issue a written change order for any change in the Contract work during the performance of this Agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the person listed in the Notice provision section of this Agreement, within fourteen (14) calendar days of the date Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving either a written change order from the City or an oral order from the City before actually receiving the written change order. If the Contractor fails to require a change order within the time specified in this paragraph, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment, the Contractor must complete the change order work; however, the Contractor may elect to protest the adjustment as provided in subsections A through E of Section 13 entitled, "Claims," below. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect, and consequential costs, including costs of delays related to any work, either covered or affected by the change. 14. CLAIMS: If the Contractor disagrees with anything required by a change order, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Contractor may file a claim as provided in this section. The Contractor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Contractor knew or should have known of the facts or events giving rise to the claim, whichever occurs first. Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 144 of 263 Page 11 of 50 Back to Agenda At a minimum, a Contractor's written claim shall include the information set forth in subsections A, items 1 through 5 below. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following information: 1. The date of the Contractor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. B. Records. The Contractor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Contractor's records needed for evaluating the protest. The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. C. Contractor's Duty to Complete Protested Work. In spite of any claim, the Contractor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). 15. LIMITATION OF ACTIONS: CONTRACTOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 145 of 263 Page 12 of 50 Back to Agenda DATE THE CONTRACT WORK IS COMPLETE OR CONTRACTOR'S ABILITY TO FILE THAT CLAIM OR SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY LIMITATIONS PERIOD. 16. WORK PERFORMED AT CONTRACTOR'S RISK: Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. 17. COMPLIANCE WITH LAWS AND REGULATIONS: The Contractor warrants full compliance with all applicable local, state, or federal laws and regulations and agrees to indemnify and defend the City against any loss, cost, liability, or damage, including reasonable attorney's fees, by reason of successful bidder's violation of this paragraph. 18. EMPLOYMENT OF STATE RETIREES: The City is a "DRS-covered employer" which is an organization that employs one or more members of any retirement system administered by the Washington State Department of Retirement Systems (DRS). Pursuant to RCW 41.50.139(1) and WAC 415-02-325(1), the City is required to elicit on a written form if any of the Contractor's employees providing services to the City retired using the 2008 Early Retirement Factors (ERFs), or if the Contractor is owned by an individual who retired using the 2008 ERFs, and whether the nature of the service and compensation would result in a retirement benefit being suspended. Failure to make this determination exposes the City to significant liability for pension overpayments. As a result, before commencing work under this Agreement, Contractor shall determine whether any of its employees providing services to the City or any of the Contractor's owners retired using the 2008 ERFs, and shall immediately notify the City and shall promptly complete the form provided by the City after this notification is made. This notification to DRS could impact the payment of retirement benefits to employees and owners of Contractor. Contractor shall indemnify, defend, and hold harmless the City from any and all claims, damages, or other liability, including attorneys' fees and costs, relating to a claim by DRS of a pension overpayment caused by or resulting from Contractor's failure to comply with the terms of this provision. This provision shall survive termination of this Agreement. 19. TERMINATION: This Contract may be terminated in whole or in part, without penalty, under the following conditions: 1) by mutual written agreement; 2) by the City for breach by the Contractor of any of the obligations or requirements set forth in the Contract Documents which would, at the option of the City, require the Contractor to assume liability for any and all damages, including the excess of re -procuring similar products or services; 3) for convenience of the City; or 4) by the City for non -appropriation of funds. A. Termination for Cause. The City may, upon 7 days written notice to Contractor and to its surety, terminate (without prejudice to any right or remedy of the City) the contract, or any City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 146 of 263 Page 13 of 50 Back to Agenda part of it, for cause upon the occurrence of any one or more of the following events: Contractor fails to complete the work or any portion thereof with sufficient diligence to ensure substantial completion of the work within the contract time; Contractor is adjudged bankrupt, makes a general assignment for the benefit of its creditors, or a receiver is appointed on account of its insolvency; Contractor fails in a material way to replace or correct work not in conformance with the Contract Documents, Contractor repeatedly fails to supply skilled workers or proper materials or equipment; Contractor materially disregards or fails to comply with laws, ordinances, rules, regulations, or orders of any public authority having jurisdiction; or Contractor is otherwise in material breach of any provision of the contract. Upon termination, the City may, at its option, take possession of or use all documents, materials, equipment, tools, and construction equipment and machinery thereon owned by Contractor to maintain the orderly progress of, and to finish, the work, and finish the work by whatever other reasonable method it deems expedient. B. Termination for Convenience. The City may, upon written notice, terminate (without prejudice to any right or remedy of the City) the contract, or any part of it, for the convenience of the City. C. Settlement of Costs. If the City terminates for convenience, Contractor shall be entitled to make a request for an equitable adjustment for its reasonable direct costs incurred prior to the effective date of the termination, plus a reasonable allowance for overhead and profit on work performed prior to termination, plus the reasonable administrative costs of the termination, but shall not be entitled to any other costs or damages, whatsoever, provided however, the total sum payable upon termination shall not exceed the Contract Sum reduced by prior payments. 20. COMPLIANCE WITH TERMS: The City may at any time insist upon strict compliance with these terms and conditions, notwithstanding any previous custom, practice, or course of dealing to the contrary. 21. PAYMENT: Contractor shall maintain time and expense records and provide them to the City along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. All invoices shall be paid by the City within 45 days of receipt of a proper invoice. If the services rendered to not meet the requirements of the Contract, Contractor will correct or modify the work to comply with the Contract. City may withhold payment for such work until the work meets the requirements of the Contract. 22. DISPUTE RESOLUTION: In the event there is a dispute between the parties, the parties agree to resolve that dispute in the following manner: (a) The parties shall attempt in good faith to resolve any dispute promptly through negotiation. Either party may give the other party written notice that a dispute exists (a "Notice of Dispute"). The Notice of Dispute shall include a statement of such party's position. Within ten (10) days of the delivery of the Notice of Dispute, the parties shall meet at a mutually acceptable time and place and attempt to resolve the dispute; City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 147 of 263 Page 14 of 50 Back to Agenda (b) If the parties are unable to resolve the dispute, they may elect to submit the dispute to mediation. The cost of the mediation shall be borne equally by the parties. The mediator shall be selected by the mutual agreement of the parties; (c) If the mediation does not result in a settlement of the dispute, the dispute shall be settled by binding arbitration by the Judicial Arbitration and Mediation Services ("JAMS") in accordance with the then operative construction rules of JAMS. The parties may select an arbitrator by mutual agreement, or if unable to agree, the arbitrator will be selected pursuant to the rules of JAMS. The parties shall be bound by the decision of such arbitrator. The arbitration shall be conducted in Kitsap County, Washington; provided, if JAMS is unable to conduct the arbitration in Kitsap County, then the arbitration shall be held in such location as the Parties may agree after consulting with JAMS. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 148 of 263 Page 15 of 50 Back to Agenda CITY OF PORT ORCHARD INSURANCE REQUIREMENTS Insurance Term. The Contractor shall procure and maintain for the duration of the Contract with the City, insurance as described herein, without interruption from commencement of the Contractor's work through the term of the contract and for thirty (30) days after the physical completion date, unless otherwise indicated herein. Such insurance shall be against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees, and subcontractors and shall meet the requirements herein. No Limitation. The Contractor's maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. Minimum Scope of Insurance. The Contractor shall obtain insurance of the types described below: • Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. • Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products -completed operations, personal injury and advertising injury and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 1185 or an equivalent endorsement. There shall be no endorsement or modification of the Commercial General Liability Insurance for liability arising from explosion, collapse, or underground property damage. The City shall be named by endorsement as an additional insured underthe Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO Additional Insured endorsement CG or substitute endorsements providing equivalent coverage. • Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. • Employers' Liability coverage to include bodily injury, and bodily injury by disease. Employers Liability coverage may be included in the Contractor's General Liability Coverage or as a stand-alone policy. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 149 of 263 Page 16 of 50 Back to Agenda • Builders Risk insurance covering interests of the City, the Contractor, Subcontractors, and Sub -subcontractors in the work. Builders Risk insurance shall be on an all-risk policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including flood, earthquake, theft, vandalism, malicious mischief, collapse, temporary buildings, and debris removal. The Builders Risk insurance covering the work will have a deductible of $5,000 (or less) for each occurrence, which will be the responsibility of the Contractor. Higher deductibles for flood and earthquake perils may be accepted by the City upon written request by the Contractor and written acceptance by the City. Any increased deductibles accepted by the City will remain the responsibility of the Contractor. The Builders Risk insurance shall be maintained until final acceptance of the work by the City. • Employer's Liability insurance limit of $1,000,000 each accident, Employer's Liability Disease each employee $1,000,000 and Employer's Liability Disease — Policy limit $1,000.000. Minimum Amounts of Insurance. The Contractor shall maintain the following insurance limits: • Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000.000 per accident. • Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products - completed operations aggregate limit. • Builders Risk insurance shall be written in the amount of the completed value of the project with no coinsurance provisions. • Workers' Compensation insurance as required by the State of Washington. • Employer's Liability insurance with Washington Stop Gap Employers' Liability minimum limits of $1,000,000 each accident, $1,000,000 disease - each employee, $1,000,000 disease - policy limit. The City will not be responsible for payment of industrial insurance premiums or for any other claim or benefit for this Contractor or any sub -Contractor or employee of the Contractor which might arise under the industrial insurance laws during the performance of duties and services under this contract. If the Department of Labor and Industries, upon audit, determines that industrial insurance payments are due and owing as a result of work performed under this contract, those payments shall be made by the Contractor; the Contractor shall indemnify the City and guarantee payment of such amounts. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 150 of 263 Page 17 of 50 Back to Agenda Public Entity Full Availability of Contractor Limits. If the Contractor maintains higher insurance limits than the minimums shown above, the Public Entity shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the Contractor, irrespective of whether such limits maintained by the Contractor are greater than those required by this contract or whether any certificate of insurance furnished to the Public Entity evidences limits of liability lower than those maintained by the Contractor. Other Insurance Provisions. The Contractor's Automobile Liability, Commercial General Liability and Builders Risk insurance policies are to contain or be endorsed to contain that they shall be primary insurance as respects the City. Any insurance, self-insurance or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. If any coverage is written on a "claims made" basis, then a minimum of three (3) year extended reporting period shall be included with the claims made policy, and proof of this extended reporting period shall be provided to the City. Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all loss or damage from any cause whatsoever to any tools, including but not limited to the Contractor's employee -owned tools, machinery, equipment, or motor vehicles owned or rented by the Contractor, or the Contractor's agents, suppliers, or contractors as well as any temporary structures, scaffolding and protective fences. Waiver of Subrogation. The Contractor waives all rights against the City, any of its Subcontractors, Sub -subcontractors, agents, and employees, for damages caused by fire or other perils to the extent covered by Builders Risk insurance or other property insurance obtained pursuant to this Insurance Requirements Section of the Contract or other property insurance applicable to the work. The Contractor's insurance shall be endorsed to waive the right of subrogation against the City, or any self-insurance, or insurance pool coverage maintained by the City. The City will not waive its right to subrogation against the Contractor. The Contractor's insurance shall be endorsed acknowledging that the City will not waive its right to subrogation. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANIL Verification of Coverage. The Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the Automobile Liability and Commercial General Liability insurance of the Contractor before commencement of the work. Before any exposure to loss may occur, the Contractor shall file with the City a copy of the Builders Risk insurance policy that includes all applicable conditions, exclusions, definitions, terms, and endorsements related to this project. Subcontractors. The Contractor shall cause each and every Subcontractor to provide insurance coverage that complies with all applicable requirements of the Contractor -provided insurance as set forth herein (with the exception of Builders Risk insurance. The Contractor shall ensure that City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 151 of 263 Page 18 of 50 Back to Agenda the Public Entity is an additional insured on each and every Subcontractor's Commercial General liability insurance policy using an endorsement as least as broad as ISO CG 20 10 10 01 for ongoing operations and CG 20 37 10 01 for completed operations. Notice of Cancellation. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. The Contractor shall provide the City and all Additional Insureds for this work with written notice of any policy cancellation, within two business days of their receipt of such notice. Failure to Maintain Insurance. The insurance required by this Section will not be canceled, materially changed, or altered without forty-five (45) days prior written notice submitted to the City. Failure on the part of the Contractor to maintain insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days' notice to the Contractor to correct the breach, immediately terminate the Contract, or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Contractor from the City. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 152 of 263 Page 19 of 50 Back to Agenda CITY OF PORT ORCHARD DECLARATION OF OPTION FOR PERFORMANCE AND PAYMENT BOND OR ADDITIONAL RETAINAGE (APPLICABLE TO CONTRACTS OF $150,000 OR LESS — RCW 39.08.010) Note 1: This form must be submitted at the time the Contractor executes the Contract. The Contractor shall designate the option, where applicable, desired by checking the appropriate space. Note 2: Regardless of choice under Section 2 of this form, the Contractor will be required to provide a warranty/maintenance bond effective at project close out prior to either release of the performance bond or release of the 10% retainage. 1. The Contractor shall provide 5% retainage, pursuant to RCW 60.28.011(1)(a). 2. The Contractor elects to (select one): (1) Furnish a performance and payment bond in the amount of the total contract sum. An executed performance and payment bond on the required form is included with the executed contract documents. (2) Have the City retain, in lieu of the performance and payment bonds, ten percent (10%) of the total contract amount for a period of thirty days after date of final acceptance, or until receipt of all necessary releases from the department of revenue and the department of labor and industries and settlement of any liens filed under chapter 60.28 RCW, whichever is later. RCW Ic1:l[i1-3113[i71 In choosing option 2, the Contractor agrees that if the Contractor, its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract, and shall faithfully perform all the provisions of such Contract and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of the Contract that may hereafter be made, at the time and in the manner therein specified, and shall pay all laborers, mechanics, subcontractors, and materialmen, and all persons who shall supply such person or persons, or subcontractors, with provisions and supplies for the carrying on of such work, on his or her part, and shall defend, indemnify, and save harmless the City of Port Orchard, Washington, its officers and agents from any claim for such payment, then the funds retained in lieu of a performance bond shall be released at the time City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 153 of 263 Page 20 of 50 Back to Agenda provided in said option 2; otherwise, the funds shall be retained until the Contractor fulfills the said obligations. Contractor Signature, Date_ Bond No. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 154 of 263 Page 21 of 50 Back to Agenda PERFORMANCE AND PAYMENT BOND CITY OF PORT ORCHARD Bay Street Pedestrian Pathway Repairs CONTRACT NO. 116-22 Bond to City of Port Orchard, Washington Bond No. We, , and , (Principal) (Surety) a Corporation, and as a surety corporation authorized to become a surety upon Bonds of Contractors with municipal corporations in Washington State, are jointly and severally bound to the City of Port Orchard, Washington ("Owner"), in the penal sum of Dollars ($ ), the payment of which sum, on demand, we bind ourselves and our successors, heirs, administrators, executors, or personal representatives, as the case may be. This Performance Bond is provided to secure the performance of Principal in connection with a contract dated , 20 , between Principal and Owner for a project entitled BAY STREET PEDESTRIAN PATHWAY REPAIRS Contract No. C116-22 ("Contract"). The initial penal sum shall equal 100 percent of the Total Bid Price, including sales tax, as specified in the Proposal submitted by Principal. NOW, THEREFORE, this Performance and Payment Bond shall be satisfied and released only upon the condition that Principal, its heirs, executors, administrators, successors, or assigns: • Faithfully performs all provisions of the Contract and changes authorized by Owner in the manner and within the time specified as may be extended under the Contract; • Pays all laborers, mechanics, subcontractors, lower tier subcontractors, material persons, and all other persons or agents who supply labor, equipment, or materials to the Project; • Pays the taxes, increases and penalties incurred on the Project under Titles 50, 51 and 82 RCW on: (A) Projects referred to in RCW 60.28.011(1)(b); and/or (B) Projects for which the bond is conditioned on the payment of such taxes, increases and penalties; and • Posts a two-year warranty/maintenance bond to secure the project. Such bond shall be in the amount of twenty percent (20%) of the project costs. Provided, further that this bond shall remain in full force and effect until released in writing by the City at the request of the Surety or Principal. The Surety shall indemnify, defend, and protect the Owner against any claim of direct or indirect loss resulting from the failure: City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 155 of 263 Page 22 of 50 Back to Agenda • Of the Principal (or any of the employees, subcontractors, or lower tier subcontractors of the Principal) to faithfully perform the contract; or • Of the Principal (or any subcontractor or lower tier subcontractor of the Principal) to pay all laborers, mechanics, subcontractors, lower tier subcontractors, material person, or any other person who provides supplies or provisions for carrying out the work. The liability of Surety shall be limited to the penal sum of this Performance and Payment Bond. Principle and Surety agree that if the Owner is required to engage the services of an attorney in connection with enforcement of this bond each shall pay the Owner reasonable attorney's fees, whether or not suit is commenced, in addition to the penal sum. No change, extension of time, alteration, or addition to the terms of the Contract or to the Work to be performed under the Contract shall in any way affect Surety's obligation on the Performance Bond. Surety hereby waives notice of any change, extension of time, alteration, or addition to the terms of the Contract or the Work, with the exception that Surety shall be notified if the Contract time is extended by more than twenty percent (20%). If any modification or change increases the total amount to be paid under the Contract, Surety's obligation under this Performance and Payment Bond shall automatically increase in a like amount. Any such increase shall not exceed twenty-five percent (25%) of the original amount of the Performance and Payment Bond without the prior written consent of Surety. This Performance and Payment Bond shall be governed and construed by the laws of the State of Washington, and venue shall be in Kitsap County, Washington. IN WITNESS WHEREOF, the parties have executed this instrument in two (2) identical counterparts this day of , 20 Principal Signature of Authorized Official By Printed Name and Title Name and address of local office of Agent and/or Surety Company: Surety Signature of Authorized Official By Attorney in Fact (Attach Power of Attorney) Surety companies executing bonds must appear on the current Authorized Insurance List in the State of Washington per Section 1-02.7 of the Standard Specifications. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 156 of 263 Page 23 of 50 Back to Agenda STATE OF 141611104WK61I On this _ for the appeared boxes): 0 ACKNOWLEDGEMENT Corporation, Partnership, or Individual )ss. _ day of , 20 , before me, the undersigned, a Notary Public in and State of Washington, duly commissioned and sworn, personally , to me known to be the (check one of the following of corporation, of partnership, the the ❑ individual, that executed the foregoing instrument to be the free and voluntary act and deed of said ❑ corporation, ❑ partnership, ❑ individual for the uses and purposes therein mentioned, and on oath stated that ❑ he ❑ she was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Seal with Ink Stamp City of Port Orchard and All Around Fence Company BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Print or type name NOTARY PUBLIC, in and for the State of Washington Residing at My Commission expires: Rev. Page 157 of 263 IBDR 4-2022 Page 24 of 50 Back to Agenda SURETY ACKNOWLEDGEMENT STATE OF ) )ss. COUNTY OF ) On this day of , 20 , before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared , to me known to be the of , the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that ❑ he ❑ she was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Seal with Ink Stamp City of Port Orchard and All Around Fence Company BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Print or type name NOTARY PUBLIC, in and for the State of Washington Residing at: My Commission expires: Rev. Page 158 of 263 IBDR 4-2022 Page 25 of 50 Back to Agenda CITY OF PORT ORCHARD MAINTENANCE/WARRANTY BOND (Note: Contractor will be required to provide a warranty/maintenance bond effective at project close out prior to either release of the performance bond or release of the 10% retainage.) RE PROJECT#, PERMIT#, PW2022-020 CONTRACT # C116-22 SURETY BOND #: DATE POSTED: EXPIRATION DATE: Project Name: BAY STREET PEDESTRIAN PATHWAY REPAIRS Owner/Developer/Contractor Project Address: KNOW ALL PERSONS BY THESE PRESENTS: That we, (hereinafter called the "Principal"), and , a corporation organized under the laws of the State of and authorized to transact surety business in the State of Washington (hereinafter called the "Surety"), are held and firmly bound unto the City of Port Orchard, Washington, in the sum of dollars ($ ) 20% Total Contract Amount, lawful money of the United States of America, for the payment of which sum we and each of us bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, by these presents. THE CONDITIONS of the above obligation are such that: WHEREAS, the above -named Principal has constructed and installed certain improvements on public property in connection with a project as described above within the City of Port Orchard; and WHEREAS, the Principal is required to post a bond for the twenty-four (24) months following written and final acceptance of the project in order to provide security for the obligation of the Principal to repair and/or replace said improvements against defects in workmanship, materials or installation during the twenty-four (24) months after written and final approval/acceptance of the same by the City; NOW, THEREFORE, this Maintenance Bond has been secured and is hereby submitted to the City. It is understood and agreed that this obligation shall continue in effect until released in writing by the City, but only after the Principal has performed and satisfied the following conditions: City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 159 of 263 Page 26 of 50 Back to Agenda A. The work or improvements installed by the Principal and subject to the terms and conditions of this Bond are as follows: (insert complete description of work here) B. The Principal and Surety agree that the work and improvements installed in the above - referenced project shall remain free from defects in material, workmanship and installation (or, in the case of landscaping, shall survive,) for a period of twenty-four (24) months afterwritten and final acceptance of the same and approval by the City. Maintenance is defined as acts carried out to prevent a decline, lapse or cessation of the state of the project or improvements as accepted by the City during the twenty-four (24) month period after final and written acceptance, and includes, but is not limited to, repair or replacement of defective workmanship, materials or installations. C. The Principal shall, at its sole cost and expense, carefully replace and/or repair any damage or defects in workmanship, materials or installation to the City -owned real property on which improvements have been installed, and shall leave the same in as good condition as it was before commencement of the work. D. The Principal and the Surety agree that in the event any of the improvements or restoration work installed or completed by the Principal as described herein, fail to remain free from defects in materials, workmanship or installation (or in the case of landscaping, fail to survive), for a period of twenty-four (24) months from the date of approval/acceptance of the work by the City, the Principal shall repair and/replace the same within ten (10) days of demand by the City, and if the Principal should fail to do so, then the Surety shall: 1. Within twenty (20) days of demand of the City, make written commitment to the City that it will either: a). remedy the default itself with reasonable diligence pursuant to a time schedule acceptable to the City; or b). tender to the City within an additional ten (10) days the amount necessary, as determined by the City, for the City to remedy the default, up to the total bond amount. Upon completion of the Surety's duties under either of the options above, the Surety shall then have fulfilled its obligations under this bond. If the Surety elects to fulfill its obligation pursuant to the requirements of subsection 1)(1)(b), the City shall notify the Surety of the actual cost of the remedy, upon completion of the remedy. The City shall return, without interest, any overpayment made by the Surety, and the Surety shall pay to the City any actual costs which exceeded the City estimate, limited to the bond amount. City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 160 of 263 Page 27 of 50 Back to Agenda 2. In the event the Principal fails to make repairs or provide maintenance within the time period requested by the City, then the City, its employees and agents shall have the right at the City's sole election to enter onto said property described above for the purpose of repairing or maintaining the improvements. This provision shall not be construed as creating an obligation on the part of the City or its representatives to repair or maintain such improvements. Corrections. Any corrections required by the City shall be commenced within ten (10) days of notification by the City and completed within thirty (30) days of the date of notification. If the work is not performed in a timely manner, the City shall have the right, without recourse to legal action, to take such action under this bond as described in Section D above. F. Extensions and Changes. No change, extension of time, alteration or addition to the work to be performed by the Principal shall affect the obligation of the Principal or Surety on this bond, unless the City specifically agrees, in writing, to such alteration, addition, extension or change. The Surety waives notice of any such change, extension, alteration or addition thereunder. G. Enforcement. It is specifically agreed by and between the parties that in the event any legal action must be taken to enforce the provisions of this bond or to collect said bond, the prevailing party shall be entitled to collect its costs and reasonable attorney fees as a part of the reasonable costs of securing the obligation hereunder. In the event of settlement or resolution of these issues prior to the filing of any suit, the actual costs incurred by the City, including reasonable attorney fees, shall be considered a part of the obligation hereunder secured. Said costs and reasonable legal fees shall be recoverable by the prevailing party, not only from the proceeds of this bond, but also over and above said bond as a part of any recovery (including recovery on the bond) in any judicial proceeding. The Surety hereby agrees that this bond shall be governed by the laws of the State of Washington. Venue of any litigation arising out of this bond shall be in Kitsap County Superior Court. H. Bond Expiration. This bond shall remain in full force and effect until the obligations secured hereby have been fully performed and until released in writing by the City at the request of the Surety or Principal. DATED this day of 120 City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 161 of 263 Page 28 of 50 Back to Agenda SURETY COMPANY (Signature must be notarized) By: Its Business Name: Business Address: City/State/Zip Code: Telephone Number: [a]IV941al01139I l tya_l l%, By: Its: Public Works Director/City Engineer DEVELOPER/OWNER (Signature must be notarized) By Its Business Name: Business Address: City/State/Zip Code: Telephone Number: Date: CHECK FOR ATTACHED NOTARY SIGNATURE Individual (Form P-1) Corporation (Form P-2) Surety Company (Form P-2) City of Port Orchard and All Around Fence Company BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Rev. Page 162 of 263 IBDR 4-2022 Page 29 of 50 Back to Agenda FORM P-1 / NOTARY BLOCK (Use For Individual/Sole Proprietor Only) STATE OF WASHINGTON ) ss. COUNTY OF KITSAP I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument and acknowledged it to be (his/her) free and voluntary act for the uses and purposes mentioned in the instrument. City of Port Orchard and All Around Fence Company BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Rev. Page 163 of 263 IBDR 4-2022 Page 30 of 50 Back to Agenda FORM P-2 / NOTARY BLOCK (Use For Partnership or Corporation Only) (Developer/Owner) STATE OF WASHINGTON ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged as the of that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it to be (his/her) free and voluntary act for the uses and purposes mentioned in the instrument. Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 164 of 263 Page 31 of 50 Back to Agenda (Surety Company) STATE OF WASHINGTON ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged as the of that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it to be (his/her) free and voluntary act for the uses and purposes mentioned in the instrument. Dated: City of Port Orchard and All Around Fence Company BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Rev. Page 165 of 263 IBDR 4-2022 Page 32 of 50 Back to Agenda APPENDIX A During the performance of this Agreement, the Contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to the following Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC§ 471, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal - aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131- 12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to -ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); and • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). City of Port Orchard and All Around Fence Company Rev. IBDR 4-2022 BAY STREET PEDESTRIAN PATHWAY REPAIRS Public Works Project No. PW2022-020 Small Works Contract No. 116-22 Page 166 of 263 Page 33 of 50 Back to Agenda SCHEDULE OF CONTRACT PRICES Bay Street Pedestrian Pathway Repairs NOTE: If a discrepancy between the numerical unit price and the written (words) unit price is found, the written (words) unit price shall control. Item Estimated SP / Description of Item Unit Amount No. Quantity STD Price Base Bid STD Mobilization LS $ (Words) (1-09) Per STD Minor Changes CALC $�3000 (Words) (1-04) 3 96 LF SP Repair Galvanized Pedestrian Rail 00 $Frv6Tlf-414wo/(wK/�1044p ` l'S'X� r $ (Words) (6-20) Per Linear Foot Additional Galvanized Vertical 4 1 EA SP Post $ re)c 1+V'VD1ZK t' rt.,t u't EA $ yw (Words) (6-20) Per Each 5 18 EA SP Adjustable Cable Ends 71 $ pSVE &,yoR 7Ttfxry J�oua✓tJ 7 �. — EA $ (Words) (6-20) Per Each Repair Concrete Foundation 6 17 EA SP Anchor Points $ 5,ra e,�) Tt>s o Cr4Wy Awc wf ZX--, EA $ 7 `16(" (Words) (6-20) Per Each 7 68 EA SP Anchor Bolts at Bases $ d,,k 1k;-OA" 7*11y A4&,1 - !K- EA $ 137. (Words) (6-20) Per Each Replace Damaged Chain Link Type 8 80 LF STD 3 Fence $ $ I/q I T L t (Words) (8-12) Per Linear Foot Page 6 of 61 Page 167 of 263 Page 34 of 50 Back to Agenda Item Estimated SP / Description of Item Unit Amount No. Quantity STD Price TOTAL BID SALES TAX In accordance with Section 1-07.2(1) State Sales Tax (DOR rule 171): Work performed on City, County, or Federally owned land, the Contractor shall include Washington State retail sales taxes in the various unit bid prices or other amounts. These retail sales taxes shall include those the Contractor pays on purchases of materials, equipment, and supplies used or consumed in doing the work. Page 7 of 61 Page 168 of 263 Page 35 of 50 Plans and Specifications Page 169 of 263 Page 36 of 50 Back to Agenda Bay St Pathway Repairs Scope of Work: • Replace/Repair galvanized pedestrian rail and associated cabling in kind (96 LF) • Repair concrete wall anchor points with high-performance repair mortar (17 locations) • Remove and replace damaged chain link fence, posts and post bases (80 LF, 7 posts and bases) • Replace light pole- PSE will replace (Not part of this contract) 6-20 Bay St Pathway Repairs 6-20.1 Description: This contract provides for the repair of the galvanized pedestrian rail, addition of a vertical galvanized post, concrete repair at the railing anchor points; demo and replacement of chain link fencing, posts and post bases for the City of Port Orchard Bay Steet Pathway. Repairs are to be made at the locations shown in the attached photos and drawings. Galvanized Rail- ASTM A513 Repair in place damaged galvanized railing. Horizontal cables can be loosened/removed if needed to repair the railing. Bent top railing needs to be replaced at one location, broken welds at vertical post replaced. Add vertical post within 3" of repaired vertical post, install new cable ends between posts. Tension the horizontal cabling. Repairs to all new welds and locations with damage to the galvanization needs to conform to ASTM A 780. Provide new anchor bolts at bases to match existing or set in epoxy (submit for approval). Concrete Repair- ASTM C928 Remove existing concrete mechanically to expose 2" in all directions around top horizontal rebars. Corrosion protection must be placed on the exposed rebar prior to repairs. Repair concrete with high strength vertical and overhead repair mortar (Sika Repair SHB or Equal). Chain Link Fence Repair- Standard Specification section 8-12 (per LF) Remove and discard damaged chain link, posts and bases. Replace posts, post bases, and vinyl chain link to match existing. Light Pole Replacement- PSE owns and maintains the overhead pedestrian pathway lighting. The pole/luminaire replacement is not part of this contract. 6-20.2 Materials: Railing- 1 %" galvanized square tubing for the railing and vertical posts. Anchors for post base- SS Titan anchors or submit for epoxy anchors. Cable End Connectors- Stainless steel and adjustable cable ends to match existing. Concrete Repair- Sika Repair SHB or Equal. Corrosion Protection- Sika Corrosion Protection 110 or Equal. Chain Link Fence- Standard Specification section 8-12 for details. Page 174 of 263 Page 41 of 50 Back to Agenda If existing materials are no longer permitted or available for in kind replacement substitutions can be approved at the sole discretion of the City. 6-20.4 Construction Requirements: All work is to be performed in accordance with the current WSDOT Standard Specifications for Road, Bridge and Municipal Construction and the product manufacturer recommendations. 6-20.5 Payment: The unit prices shall include all material, equipment, and labor costs for the repairs at the locations shown in the Plans and described in the Special Provisions. Removal of the chain link and disposal is included in the bid items. Any additional repairs to the Bay Street Pedestrian Pathway Repair will be paid in accordance with Section 1-09.6 of the Special Provisions using the bid item "Force Account for Structural Repairs". Page 175 of 263 Page 42 of 50 8-12 8-12 Chain Link Fence and Wire Fence Chain Link Fence and Wire Fe Back to Agenda 8-12.1 Description This Work consists of furnishing and constructing chain link fence and wire fence of the types specified in accordance with the Plans, these Specifications, and the Standard Plans at the locations shown in the Plans and in conformity with the lines as staked. Chain link fence shall be of diamond woven wire mesh mounted on steel posts. Wire fence shall be of barbed wire or barbed wire combined with wire mesh fastened to posts. Steel posts and steel braces, or wood posts and wood braces may be used, provided only one type shall be selected for use in any Contract. Gates shall consist of a steel frame or frames covered with chain link or wire mesh. 8-12.2 Materials Materials shall meet the requirements of the following sections: Concrete 6-02 Paint 9-08.1(2)B Chain Link Fence and Gates 9-16.1 Wire Fence and Gates 9-16.2 Grout 9-20.3 8-12.3 Construction Requirements Clearing of the fence line will be required. Clearing shall consist of the removal and disposal of all trees, brush, logs, upturned stumps, roots of down trees, rubbish, and debris. For chain link type fences, the clearing width shall be approximately 10 feet. For wire type fences, the clearing width shall be approximately 3 feet. Grubbing will not be required except where short and abrupt changes in the ground contour will necessitate removal of stumps in order to properly grade the fence line. All stumps within the clearing limits shall be removed or close cut. Grading of the fence line sufficient to prevent short and abrupt breaks in the ground contour that will improve the aesthetic appearance of the top of the fencing when installed shall be required. It is expected that in the performance of this Work, machine operations will be required for chain link fencing, and handwork will be required for wire fencing except where sufficient width exists for machine work. The fence shall be constructed close to and inside the Right of Way line unless otherwise directed by the Engineer or shown in the Plans. Deviations in alignment to miss obstacles will be permitted only when approved by the Engineer and only when such deviation will not be visible to the traveling public or adjacent property owners. 8-12.3(1) Chain Link Fence and Gates 8-12.3(1)A Posts Posts shall be placed in a vertical position and, except where otherwise directed by the Engineer, shall be spaced at 10-foot centers. Spacing will be measured parallel to the slope of the ground. All posts, except line posts, shall be set in concrete to the dimensions shown in the Plans. All concrete footings shall be crowned so as to shed water. Line posts fences shall be set in undisturbed earth either by driving or drilling, except as specified. Driving shall be accomplished in such a manner as not to damage the post. Voids around the post shall be backfilled with suitable material and thoroughly tamped. Concrete footings shall be constructed to embed the line posts at grade depressions where the tension on the fence will tend to pull the post from the ground. Page 176 of 963 Page 43 of 50 Page 8-70 2023 Standard Specifications M 41-10 Chain Link Fence and Wire Fence Back to Agenda Where solid rock is encountered without an overburden of soil, line posts shall be set a minimum depth of 14 inches, and end, corner, gate, brace, and pull posts a minimum of 20 inches into the solid rock. The holes shall have a minimum width 1 inch greater than the largest dimension of the post section to be set. The posts shall be cut before installation to lengths that will give the required length of post above ground, or if the Contractor so elects, an even length of post set at a greater depth into the solid rock may be used. After the post is set and plumbed, the hole shall be filled with Grout Type 4. The grout shall be thoroughly worked into the hole so as to leave no voids. The grout shall be crowned to carry water from the post. Where solid rock is covered by an overburden of soil or loose rock, the posts shall be set to the full depth shown in the Plans unless penetration into solid rock reaches the minimum depths specified above, in which case the depth of penetration may be terminated. Concrete footings shall be constructed from the solid rock to the top of the ground. After the post is set and plumbed, the hole in the portion of the post in solid rock shall be filled with Grout Type 4. The grout shall be thoroughly worked into the hole so as to leave no voids. Gate and pull posts shall be braced to the adjacent brace, end, or corner post(s) in the manner shown in the Plans. Changes in line amounting to 2-foot tangent offset or more between posts shall be considered as corners for all types of fence. Steep slopes or abrupt topography may require changes in various elements of the fence. It shall be the responsibility of the Contractor to provide all posts of sufficient length to accommodate the chain link fabric. All round posts shall have approved top caps fastened securely to the posts. The base of the top cap fitting for round posts shall feature an apron around the outside of the posts. 8-12.3(1)B Vacant 8-12.3(1)C Tension Wire Tension Wires shall be attached to the posts as detailed in the Plans or as approved by the Engineer. 8-12.3(1)D Chain Link Fabric Chain link fabric shall be attached after the cables and wires have been properly tensioned. Chain link fabric shall be placed on the face of the post away from the Highway, except on horizontal curves where it shall be placed on the face on the outside of the curve unless otherwise directed by the Engineer. Chain link fabric shall be placed approximately 1 inch above the ground and on a straight grade between posts by excavating high points of ground. Filling of depressions will be permitted only upon approval of the Engineer. The fabric shall be stretched taut and securely fastened to the posts. Fastening to end, gate, corner, and pull posts shall be with stretcher bars and fabric bands spaced at intervals of 15 inches or less or by weaving the fabric into the fastening loops of roll formed posts. Fastening to posts shall be with tie wire, metal bands, or other approved method attached at 14-inch intervals. The top and bottom edge of the fabric shall be fastened with hog rings to the top and bottom tension wires as may be applicable, spaced at 24-inch intervals. Rolls of wire fabric shall be joined by weaving a single strand into the ends of the rolls to form a continuous mesh. Pages 177 of 963 Pages 44 of 50 2023 Standard Specifications M 41-10 Page 8-71 8-12 8-12.3(1)E Chain Link Gates Chain Link Fence and Wire Fe Back to Agenda Chain link fabric shall be fastened to the end bars of the gate frame by stretcher bars and fabric bands and to the top and bottom bars of the gate frames by tie wires in the same manner as specified for the chain link fence fabric, or by other standard methods if approved by the Engineer. Welded connections on gate frames where the galvanized coating has been burned shall be thoroughly cleaned by wire brushing and all traces of the welding flux and loose or cracked galvanizing removed. The clean areas shall then be painted with two coats of paint, conforming to Section 9-08.1(2)B. 8-12.3(2) Wire Fence and Gates 8-12.3(2)A Posts Line posts shall be spaced at intervals not to exceed 14 feet. All intervals shall be measured center to center of posts. In general, in determining the spacing of posts, measurements will be made parallel to the slope of the existing ground, and all posts shall be placed in a vertical position except where otherwise directed by the Engineer. Line posts may be driven in place provided the method of driving does not damage the post. Steel corner, gate, and pull posts shall be set in concrete footings to the dimensions shown in the Plans and crowned at the top to shed water. Concrete footings shall be constructed to embed the lower part of steel line posts, and wood anchors shall be placed on wood posts at grade depressions wherever the tension on the line wires will tend to pull the post from the ground. The concrete footings shall be 3 feet deep by 12 inches in diameter and crowned at the top. Where solid rock is encountered without an overburden of soil, line posts shall be set a minimum depth of 14 inches and end, corner, gate, and pull posts a minimum depth of 20 inches into the solid rock. The hole shall have a minimum dimension 1 inch greater than the largest dimension of the post section to be set. The posts shall be cut before installation to lengths that will give 4% feet of post above ground, or if the Contractor so elects, 6-foot posts set 18 inches into the solid rock may be used. After the post is set and plumbed, the hole shall be filled with Grout Type 4. The grout shall be thoroughly worked into the hole so as to leave no voids. The grout shall be crowned to carry water away from the post. Where posts are set in the above manner, anchor plates and concrete footings will not be required. Where solid rock is covered by an overburden of soil or loose rock, the posts shall be set to the full depth of 2% feet unless the penetration into solid rock reaches the minimum depths specified above, in which case the depth of penetration may be terminated. When the depth of the overburden is greater than 12 inches, anchor plates will be required on the steel line posts, and concrete footings shall be constructed from the solid rock to the top of the ground on steel end, gate, corner, and pull posts. When the depth of overburden is 12 inches or less, anchor plates and concrete footings will not be required. After the post is set and plumbed, the hole in the portion of the post in solid rock shall be filled with Grout Type 4. The grout shall be thoroughly worked into the hole so as to leave no voids. Steel braces shall be anchored to soil or loose rock with a commercial concrete footing not less than 18 inches on any one side and set in solid rock to a minimum depth of 10 inches in the same manner as specified above for posts. The braces shall be set on the diagonal as shown in the Plans and connected to the post with an approved connection. Wood braces shall be dapped 1/ inch into the posts and shall be fastened to each post with three 20d galvanized nails. Wire braces shall consist of a 9-gage wire passed around the wood posts to form a double wire. The wire shall be fastened to each post with two staples and fastened together Pages 178 of 963 Page 45 of 50 Page 8-72 2023 Standard Specifications M 41-10 Chain Link Fence and Wire Fence Back to Agenda to form a continuous wire. The wires shall then be twisted together until the wire is in tension. Where the new fence joins an existing fence, the two shall be attached in a manner satisfactory to the Engineer, and end or corner posts shall be set as necessary. Changes in alignment of 30 degrees or more shall be considered as corners, and corner posts shall be installed. Where it is deemed by the Engineer that a change in alignment of less than 30 degrees will materially lessen the strength of the fence, the line post at the angle shall be supported by the addition of braces or wires in a manner satisfactory to the Engineer. 8-12.3(2)B Barbed Wire and Wire Mesh After the pull posts have been placed and securely braced, the barbed wire and mesh shall be pulled taut to the satisfaction of the Engineer, and each longitudinal wire shall be cut and securely fastened to the pull post with devices customarily used for the purpose. Wire or mesh shall not be carried past a pull post, but shall be cut and fastened to the pull post independently for the adjacent spans. After the tensioning of the wire or mesh between two pull posts, all longitudinal wires shall be properly fastened at proper height to each intervening line post. Wire mesh and barbed wire shall be placed on the face of the post which is away from the highway, except that on horizontal curves, the mesh and wires shall be fastened to the face on the outside of the curve unless otherwise directed by the Engineer. Where unusual ground depressions occur between posts, the fence shall be guyed to the ground by means of a 9-gage galvanized wire attached to a gravity anchor of approximately 100 pounds buried 2 feet in the ground. The guy wire shall be securely attached to each strand of barbed wire and to the top and bottom wires of the wire mesh fabric in a manner to maintain the entire fence in its normal shape. If necessary to guy the fence in solid rock, the guy wire shall be grouted in a hole 2 inches in diameter and 10 inches deep. The operation of guying shall leave the fence snug with the ground. 8-12.3(2)C Vertical Cinch Stays Vertical cinch stays shall be installed midway between posts on both types of fence. The wire shall be twisted in such a manner as to permit weaving into the horizontal fence wires to provide rigid spacing. All barbed wires and the top, middle, and bottom wire of the wire mesh shall be woven into the stay. 8-12.3(2)D Wire Gates The wire mesh fabric shall be taut and securely tied to the frame and stays in accordance with recognized standard practice for wire gate construction. Welded connections on gate frames shall be treated as specified for chain link fence gates. The drop bar locking device for double wire gates shall be provided with a footing of commercial concrete 12 inches in diameter and 12 inches deep, crowned on top and provided with a hole to receive the locking bar. The diameter and depth of the hole in the footing shall be as specified by the manufacturer of the locking device. 8-12.3(2)E Access Control Gate Access control gates shall be placed to line and grade as shown in the Plans or as staked. After the posts have been set, the holes shall be backfilled. The postholes shall be of sufficient dimension to allow placement and thorough compaction of selected backfill material completely around the post. Selected backfill material shall consist of earth or fine sandy gravel, free from organic matter, with no individual particles exceeding 11h inches in diameter. Pages 179 of 963 Page 46 of 50 2023 Standard Specifications M 41-10 Page 8-73 8-12 Chain Link Fence and Wire Fe Back to Agenda 8-12.4 Measurement Chain link fence and wire fence will be measured by the linear foot of completed fence, along the ground line, exclusive of openings. End, gate, corner, and pull posts for chain link fence will be measured per each for the posts furnished and installed complete in place. Gates will be measured by the unit for each type of gate furnished and installed. Access control gates will be measured per each. 8-12.5 Payment Payment will be made for each of the following Bid items that are included in the Proposal: "Chain Link Fence Type ", per linear foot. The unit Contract price per linear foot for "Chain Link Fence Type ___" shall be full payment for all costs for the specified Work including brace post installation and all other requirements of Section 8-12 for Chain Link Fence, unless covered in a separate Bid Item in this section. Payment for clearing of fence line for "Chain Link Fence Type " shall be in accordance with Section 2-01.5. "End, Gate, Corner, and Pull Post for Chain Link Fence", per each. The unit Contract price per each for "End, Gate, Corner, and Pull Post for Chain Link Fence" shall be full payment for all costs for the specified Work. "Double 14 Ft. Chain Link Gate", per each. "Double 20 Ft. Chain Link Gate", per each. "Single 6 Ft. Chain Link Gate", per each. The unit Contract price per each for "Double 14 Ft. Chain Link Gate", "Double 20 Ft. Chain Link Gate", and "Single 6 Ft. Chain Link Gate", shall be full payment for all costs for the specified Work. "Wire Fence Type ", per linear foot. The unit Contract price per each for "Wire Fence Type " shall be full payment for all costs for the specified Work including payment for clearing of the fence line. "Single Wire Gate 14 Ft. Wide", per each. "Double Wire Gate 20 Ft. Wide", per each. The unit contract price per each for "Single Wire Gate 14 Ft. Wide" and "Double Wire Gate 20 Ft. Wide" shall be full payment for all costs for the specified Work. "Access Control Gate", per each. The unit contract price per each for "Access Control Gate" shall be full payment for all costs to perform the specified work. Pages 1So of 963 Page 47 of 50 Page 8-74 2023 Standard Specifications M 41-10 0 Designation: A 780 — 01 Standard Practice for Repair of Damaged and Uncoated Areas of Hot -Dip Galvanized Coatings' This standard is issued under the faed designation A 780; the number immediately following the designation indicates the year of original adoption or, in the case of revision, the year of last revision. A number in parentheses indicates the year of last reapproval. A superscript epsilon (e) indicates an editorial change since the last revision or reapproval. This standard has been approved for use by agencies of the Department of Defense. 1. Scope 1.1 This practice describes methods which may be used to repair damaged hot -dip galvanized coatings on hardware, structural shapes, and other products fabricated prior to hot -dip galvanizing, and uncoated areas remaining after initial hot -dip galvanizing. The damage may be the result of welding or cutting (dine), in which case the coating will be damaged predominantly by burning. This practice can also be used to repair hot -dip galvanized coatings damaged by excessively rough handling during shipping or erection. Requirements concerning the renovation of uncoated areas remaining after initial hot -dip galvanizing are contained within the applicable material specifiation. 1.2 This practice describes the use of low melting point zinc alloy repair rods or powders made specifially for this purpose, the use of paints containing zinc dust, and the use of sprayed zinc (metallizing). 1.3 The extent of repair shall be limited to an area mutually agreeable to the contracting parties. Similarly, contracting parties shall agree to the repair method to be used. 1.4 This standard does not purport to address the safety problems, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use. 1.5 The values stated in inch -pound units are to be regarded as the standard. The values given in parentheses are for information only. 2. Referenced Documents 2.1 ASTM Standards: A 902 Terminology Relating to Metallic Coated Steel Prod- uct52 D 520 Specifiation for Zinc Dust Pigment 3 2.2 Society for Protective Coatings (SSPQ Documents: ' This practice is under the jurisdiction of ASTM Committee A05 on Metallic Coated Iron and Steel Products and is the direct responsibility of Subcommittee A05.13 on Structural Shapes and Hardware Specifiations. Current edition approved April 10, 2001. Published June 2001. Originally published as A 780 — 80. Last previous edition A 780 — 00. 2 Annual Book of ASTM Standards, Vol 01.06. ' Annual Book of ASTM Standards, Vol 06.03. Copyright O ASTM, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, United States. SSPC-PA2 Measurement of Dry Paint Thickness with Mag- netic Gages4 SSPC-SP2 Hand Tool Cleaning4 SSPC-SP5/NACE No.l White Metal Blast Cleaning4 SSPC-SP10/NACE No.2 Near -White Blast Cleaning4 SSPC-SP11 Power Tool Cleaning to Bare Meta14 3. Terminology 3.1 Defiitions—For defiitions of terms used in this practice, refer to Terminology A 902. 4. Materials 4.1 Properties —The material used for repairs shall have the following characteristics: 4.1.1 One application of the material shall provide a coating thickness of at least 2.0 mils (50.8 µm). 4.1.2 The applied coating shall provide barrier protection and shall preferably be anodic to steel. 4.1.3 Application of the coating material shall be possible under shop or fild conditions. 4.2 Types —There are three types of material that possess the required properties and may be used to repair damaged galvanized coatings, as follows: 4.2.1 Zinc -Based Solders —Zinc alloy solders are to be used for repairs. The most common types of solders are zinc - cadmium, zinc -tin -lead, and zinc -tin -copper alloys. Zinc - cadmium and zinc -tin -lead alloys have liquidus temperatures in the ranges from 518 to 527°F (270 to 275°C) and 446 to 500°F (230 to 260°C), respectively. (The liquidus temperature is that temperature above which an alloy is completely molten.) The zinc -tin -copper alloys have a liquidus temperature in the range from 660 to 670OF (349 to 3540C), but they are applied while in a semisolid state in the preferred application temperature range from 480 to 570°F (250 to 3000C). The solders can be used in rod form or as powders. Annex Al describes the use of zinc -based solders. 4.2.2 Paints Containing Zinc Dust —These are usually based on organic binders, pre -mixed and formulated specifi cally for use on steel surfaces. Paints containing zinc dust, with concentrations of zinc dust in the range of 65 to 69 % or above ° Available from Steel Structures Painting Council, 4400 Fifth Ave., Pittsburgh, PA 15213. Page 1P1 of 263 Page 48 of 50 Back to Agendal qSJ� A 780 92 % in the dried fin, are considered equally effective for the repair of damaged galvanized coatings. The repair paint to be used shall be selected by the galvanizer, unless the purchaser specifiis a particular concentration or paint system. Corrosion resistance and service performance are very dependent on the properties of the paint system, the extent of surface prepara- tion, and skills of individual applicators. Annex A2 describes the use of paints containing zinc dust. Speci6ation D 520 describes the zinc dust component of these paints. 4.2.3 Sprayed Zinc —This method involves the application of a zinc coating by spraying the surface to be repaired with droplets of molten metal using wire or ribbon, or powder processes. Annex A3 describes the use of sprayed zinc. 4.3 For further information, reference may be made to the papers, procedures, and speci6ations in Refs. (1) through (4) (see list of references at the end of this practice). 5. Keywords 5.1 coatings —zinc; galvanized coating repair; galvanized coatings; touch-up; zinc coating repair; zinc coatings ANNEXES (Mandatory Information) Al. REPAIR USING ZINC -BASED ALLOYS ALL Clean the surface to be reconditioned using a wire brush, a light grinding action, or mild blasting. To ensure that a smooth reconditioned coating can be effected, surface prepa- ration shall extend into the surrounding, undamaged galva- nized coating. A1.2 If the area to be reconditioned includes welds, &t remove all weld fix residue and weld spatter (of a size that cannot be removed by wire brushing or blast cleaning) by mechanical means, such as chipping, grinding, or power scaling, etc. A1.3 Preheat the cleaned area to be reconditioned to at least 600°F (315°C). Do not overheat the surface beyond 750°F (400°C), nor allow the surrounding galvanized coating to be burned. Wire brush the surface to be reconditioned during preheating. Pre-flx, if necessary. AIA Rub the cleaned, preheated area with the repair stick to deposit an evenly distributed layer of the zinc alloy. When powdered zinc alloys are used, sprinkle the powder on the cleaned, preheated surface and spread out with a spatula or similar tool. The thickness of the applied coating shall be as agreed upon between the contracting parties. A1.5 When the repair has been effected, remove flx residue by rinsing with water or wiping with a damp cloth. A1.6 Take thickness measurements with either a magnetic, electromagnetic, or eddy -current gage to ensure that the applied coating is as specifd. A2. REPAIR USING PAINTS CONTAINING ZINC DUST A2.1 Preparation of the damaged surface will be inflenced by the type of paint selected and the anticipated service conditions. Experience shows that in general, organic zinc -rich systems are tolerant of marginal surface preparation. Most organic paints containing zinc dust are not critical of climatic or atmospheric conditions for curing. The following general guidelines shall apply: A2.1.1 Surfaces to be reconditioned with paints containing zinc dust shall be clean, dry, and free of oil, grease, preexisting paint, and corrosion by-products. A2.1.2 Where anticipated, fild service conditions include immersion, blast clean the surface in accordance with SSPC- SP10/NACE No. 2 near white metal. For less critical fild exposure conditions, clean the surface to bare metal, in accordance with SSPC-SP11, as a minimum. Where circum- stances do not allow blast or power tool cleaning, it is permissible to hand tool areas clean in accordance with SSPC-SP2. To ensure that a smooth reconditioned coating can be effected, surface preparation shall extend into the undam- aged galvanized coating. The method and extent of surface preparation shall be mutually agreeable to the contracting parties. A2.1.3 If the area to be reconditioned includes welds, St remove all weld fitx residue and weld spatter (of a size that cannot be removed by wire brushing or blast cleaning) by mechanical means, such as chipping, grinding, or power scaling, etc. A2.1.4 Spray or brush -apply the paints containing zinc dust to the prepared area. Apply the paint as in accordance with the manufacturer's printed instructions in a single application employing multiple passes to achieve a dry fin thickness to be agreed upon between the contracting parties. Allow adequate curing time before subjecting repaired items to service condi- tions in accordance with the manufacturer's printed instruc- tions. A2.1.5 Take thickness measurements with either a mag- netic, electromagnetic, or eddy -current gage to ensure that the applied coating is as specifid in accordance with SSPC-PA2. Page 1�2 of 263 Page 49 of 50 Back to Agendal A 780 A3. REPAIR USING SPRAYED ZINC (METALLIZING) A3.1 Surfaces to be reconditioned by zinc metallizing shall zinc powder. Apply the sprayed coating as soon as possible be clean, dry and free of oil, grease, and corrosion products. after surface preparation and before visible deterioration of the A3.2 If the area to be reconditioned includes welds, St surface has occurred. remove all fix residue and weld spatter of a size or type that A3.6 The surface of the sprayed coating shall be of uniform cannot be removed by blast cleaning by mechanical means, texture, free of lumps, coarse areas, and loosely adherent that is, chipping, etc. particles. A3.3 Blast clean the surface to be reconditioned in accor- dance with SSPC-SP5/NACE No. 1, white metal. A3.7 The nominal thickness of the sprayed zinc coating shall be previously agreed upon between the contracting A3.4 To ensure that a smooth reconditioned coating can be parties. effected, surface preparation shall be extended into the sur- rounding undamaged galvanized coating. A3.8 Take thickness measurements with either a magnetic, A3.5 Apply the coating to the clean and dry surface by electromagnetic, or eddy -current gage to ensure that the means of metal -spraying pistols fed with either zinc wire or applied coating is as specifid. REFERENCES (1) Van Eijnsbergen, J. F. H., et al, "Reconditioning Damaged Galvanized Surfaces," 6th International Conference on Hot Dip Galvanizing, Interlaken, June 1961, pp. 128-141. (2) SSPC-Paint-20," Zinc Rich Coatings, Type I Inorganic, Type II Organic," Steel Structures Painting Council, 4400 Fifth Ave., Pitts- burgh, PA 15213, 1979. (3) MIL-P-21035 (Ships), Military Specifiation," Paint, High Zinc Dust Content, Galvanizing Repair," Amendment 1, U.S. Government Printing Office, Washington, DC, 1970. (4) "Recommended Practices for Fused Thermal Sprayed Deposits," American Welding Society, Inc., 550 N.W. LeJeune Rd., Miami, FL 33135, 1975. The American Society for Testing and Materials takes no position respecting the validity ofany patent rights asserted in connection with any item mentioned in this standard. Users of this standard are expressly advised that determination of the validity of any such patent rights, and the risk of infringement of such rights, are entirely their own responsibility. This standard is subject to revision at any time by the responsible technical committee and must be reviewed every 6e years and if not revised, either reapproved or withdrawn. Your comments are invited either for revision of this standard or foradditional standards and should be addressed to ASTM Headquarters. Your comments will receive careful consideration at a meeting of the responsible technical committee, which you may attend. If you feel that your comments have not received a fair hearing you should make your views known to the ASTM Committee on Standards, at the address shown below. This standard is copyrighted byASTM, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959, United States. Individual reprints (single or multiple copies) of this standard may be obtained by contacting ASTM at the above address or at 610-832-9585 (phone), 610-832-9555 (fax), or service@astm.org (e-mail), or through the ASTM website (www.astm.org). Page 1�3 of 263 Page 50 of 50 Agenda Item No. Subject City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7G Approval of a Commercial Lease Agreement with Hillstrom Holdings for Commercial Office Space of 600 Kitsap Street Units 101 and 201 Meeting Date: Prepared by: Atty Routing No.: Atty Review Date: Back to Agenda December 20, 2022 Charlotte Archer City Attorney 366922-0004 — Exec December 16, 2022 Summary: The City of Port Orchard staff require additional office space. The administrative department has identified the Greenwood Building located on 600 Kitsap Street Port Orchard as an ideal location to lease commercial office space. The lease is for the 111 and 2nd floor office space and includes some four off street parking spaces for each floor leased. The City shall not be responsible for any Operating Costs, including, without limitation, real property tax assessments, Landlord's property insurance, storm water, water, sanitary sewer, garbage disposal, janitorial services, restroom supplies, or maintenance, repairs or replacements of all or any portion of the Property or the Common Areas; provided. The City will pay for its electricity costs for the Premises, which electricity costs are metered. The lease is structured to be for 36 month's beginning January 1, 2023 at a monthly rate of $3,600 for the two spaces combined. The estimated lease costs are included in the 2023-2024 Biennial Budget and expected to cost $86,400 over the two years. Recommendation: Staff recommends approving the Mayor to sign the attached purchase order. Relationship to Comprehensive Plan: N/A Motion for consideration: "I move to authorize the Mayor to enter into an agreement with Hillstrom Holdings to lease commercial office space, as presented." Fiscal Impact: Included in the 2023-2024 Biennial Budget $86,400 Alternatives: Do not approve and provide alternative guidance. Attachment: Lease Agreements (Unit 101 and Unit 201) Page 184 of 263 Back to Agenda flo HILLSTROM HOLDINGS LLC 11021 CRAMER RD. NW GIG HARBOR, WA 98329 COMMERCIAL LEASE AGREEMENT I. The Parties. This Commercial Lease Agreement ("Agreement") made this 28 day of December , 20_22 by and between: Landlord. (.-t► IJ.�,r1to&.,, i & S [Landlord's Name], of 11ort C2A,ug-m— W - ` ; g,ierao [Landlord's Street Address], State of W_,,aFPt,u -O.3 ,-("Landlord") AND Tenant. 4fi - [Tenant's Name], of —sxit_� osx— [Tenant's Street Address], State of ("Tenant"). Collectively, the Landlord and Tenant shall be referred to herein as the "Parties". The Parties agree as follows: II. DESCRIPTION OF LEASED PREMISES. The Landlord agrees to lease to the Tenant the following described square feet (SF) of commercial office space located at (goo Additional Description: Unit Number Sw,w -W- to l Hereinafter known as the "Premises". III. USE OF LEASED PREMISES. The Landlord is leasing the Premises to the Tenant and the Tenant is hereby agreeing to lease the Premises for the following use and purpose: General office and administrative use. Any change in use or purpose the Premises other than as described above shall be upon prior written consent of Landlord only. IV. TERM OF LEASE. The term of this Lease shall be for a period of 3 year(s) month(s) commencing on the I day of s A"cAA L*M , 20Zj. and expiring at M dmght on the L day of 1ete20 ZS. ("Imtial Term") V. BASE RENT. The net monthly payment shall be _ dollars ($ t . payable monthly with the first payment due upon the commencement of the Lease and each monthly installment payable thereafter on the lsi day of each month ("Base Rent"). Rent payment for any period during the term hereon, which is for less than 1 month shall be a pro-rata portion of the monthly rent. Page 185 of 263 a. Payment of Rent. Tenant shall pay Landlord without notice, demand, deduction or offset, in lawful money of the United States, the monthly Base Rent stated in this section in advance on or before the first day of each month during the Term beginning on the Commencement Date, and shall also pay any other additional payments, including Operating Costs, due to Landlord ("Additional Rent and together with Base Rent, "Rent") when required under this Lease. All payments due to Landlord under this Lease, including late fees and interest, shall also constitute Additional Rent, and upon Tenant's failure to pay any such costs, charges or expenses, Landlord shall have the same rights and remedies as otherwise provided in this Lease for the failure of Tenant to pay Rent. b. Late Charges; Default Interest. If any sums payable by Tenant to Landlord under this Lease are not received within five (5) business days after their due date, Tenant shall pay Landlord an amount equal to the greater of $100 or 5% of the delinquent amount for the cost of collecting and handling such late payment in addition to the amount due and as Additional Rent. All delinquent sums payable by Tenant to Landlord and not paid within five (5) business days after their due date shall, at Landlord's option, bear interest at the rate of 15% per annum, or the highest rate of interest allowable by law, whichever is less (the "Default Rate"). Interest on all delinquent amounts shall be calculated from the original due date to the date of payment. Less Than Full Payment. Landlord's acceptance of less than the full amount of any payment due from Tenant shall not be deemed an accord and satisfaction or compromise of such payment unless Landlord specifically consents in writing to payment of such lesser sum as an accord and satisfaction or compromise of the amount which Landlord claims. Any portion that remains to be paid by Tenant shall be subject to the late charges and default interest provisions of this Section. VI. PREPAID RENT. Upon execution of this lease, Tenant shall deliver to Landlord the sum of $---�3'~ as prepaid Rent, to be applied to Base Rent due for the first month of the lease. VII. SECURITY DEPOSIT. Upon execution of this lease, Tenant shall deliver to Landlord a sum of $ totoo - to be held as a security deposit pursuant to Section [] below. The security deposit shall be in the form of cash, check, or wire transfer. VIII. OPTION TO RENEW. Tenant may have the right to renew the Lease with a total of 2— renewal period(s) with each term being —_ year(s) 4-1 month(s) which may be exercised by giving written notice to Landlord no less than 60 days prior to the expiration of the Lease or renewal period. Rent for each option period shall: (check one) ❑ - Increase as calculated by multiplying the Base Rent by the annual change in the Consumer Price Index (CPI) published by the Bureau of Labor Statistics by the most recent publication to the option period start date. Increase by 2 % NwkA //y Giv /—/ — C'r- 7"'o— ❑ - Increase by dollars ($ Page 2of18 Page 186 of 263 IBack to Agenda IX. OPERATING COSTS a. Definition. As used herein, "Operating Costs" shall mean all costs of operating, maintaining and repairing the Premises, the Building, and the Property, determined in accordance with generally accepted accounting principles, and including without limitation the following: all taxes and assessments (Including, but not limited to, real and personal property taxes and assessments, local improvement district assessments and other special purpose assessments, and taxes on rent or gross receipts); insurance premiums paid by Landlord and (to the extent used) deductibles for insurance applicable to the Property; water, sewer and all other utility charges (other than utilities separately metered and paid directly by Tenant or other tenants); janitorial and all other cleaning services; refuse and trash removal; supplies, materials, tools, and equipment used in the operation, repair, and maintenance of the Property; refurbishing and repainting; carpet replacement; to the extent serving areas other than just the Premises, heating, ventilation and air conditioning ("HVAC") service, repair and replacement when necessary; elevator service and repair and replacement of elevators when necessary; pest control; lighting systems, fire detection and security services; landscape maintenance; management (fees and/or personnel costs); parking lot, road, sidewalk and driveway patching, resurfacing and maintenance; snow and ice removal; repair, maintenance, and, where reasonably required, replacement of signage; amortization of capital improvements as Landlord may in the future install to comply with governmental regulations and rules or undertaken in good faith with a reasonable expectation of reducing Operating Costs (the useful life of which shall be a reasonable period of time as determined by Landlord); costs of legal services (except those incurred directly relating to a particular occupant of the Building); and accounting services, labor, supplies, materials and tools. Landlord and Tenant agree that if the Building is not 90% occupied during any calendar year (including the Base Year, if applicable), on a monthly average, then those portions of the Operating Costs that are driven by occupancy rates, as reasonably determined by Landlord, shall be increased to reflect the Operating Costs of the Building as though it were 90% occupied and Tenant's Pro Rata Share of Operating Costs shall be based upon Operating Costs as so adjusted. Operating Costs shall not include: Landlord's income tax or general corporate overhead; depreciation or amortization on the Building or equipment therein; loan or ground lease payments; real estate broker's commissions; capital improvements to or major repairs of the Building shell (i.e., the Building structure, exterior walls, roof, and structural floors and foundations), except to the extent expressly permitted above; any costs regarding the operation, maintenance and repair of the Premises, the Building, or the Property paid directly by Tenant or other tenants in the Building or otherwise reimbursed to Landlord, or other cost for which another party is required to pay Landlord (except as part of operating cost recoveries under other tenant leases) so that Landlord shall not recover any item of cost more than once. If Tenant is renting a pad separate from any other structures on the Property for which Landlord separately furnishes the services described in this paragraph, then the term "Operating Costs" shall not include those costs of operating, repairing, and maintaining the enclosed mall which can be separately allocated to the tenants of the other structures. Operating Costs which cannot be separately allocated to the tenants of other structures may include but are not limited to: insurance premiums; taxes and assessments; management (fees and/or personnel costs); exterior lighting; parking lot, road, sidewalk and driveway patching, resurfacing and maintenance; snow and ice removal; and costs of legal services and accounting services. Page 3 of 18 Page 187 of 263 b. Type of Payment. As Additional Rent, Tenant shall pay to Landlord on the first day of each month with payment of Base Rent one -twelfth of Tenant's Pro Rata Share of Operating Costs, which amount is determined in the manner set forth in Section IK(c) below. c. Method of Payment. Tenant shall pay to Landlord Operating Costs pursuant to the following procedure: Landlord shall provide to Tenant, on or before the Commencement Date, a good faith estimate of annual Operating Costs for the calendar year in which the Commencement Date occurs. Landlord shall also provide to Tenant, as soon as possible following the first day of each succeeding calendar year, a good faith estimate of Tenant's annual Pro Rata Share of Operating Costs for the then -current year. ii. Each estimate of Tenant's annual Pro Rata Share of Operating Costs determined by Landlord, as described above, shall be divided into 12 equal monthly installments. Tenant shall pay to Landlord such monthly installment of Operating Costs with each monthly payment of Base Rent. In the event the estimated amount of Tenant's Pro Rata Share of Operating Costs has not yet been determined for any calendar year, Tenant shall pay the monthly installment in the estimated amount determined for the preceding calendar year until the estimate for the current calendar year has been provided to Tenant. When the estimate for the current calendar year is received, Tenant shall then pay any shortfall or receive a credit for any surplus for the preceding months of the current calendar year and shall, thereafter, make the monthly installment payments in accordance with the current estimate. iii. As soon as reasonably possible following the end of each calendar year during the Term, Landlord shall provide to Tenant a statement (the "Operating Costs Statement') setting forth the amount of Operating Costs actually incurred and the amount of Tenant's Pro Rata Share of Operating Costs actually payable by Tenant with respect to such calendar year. In the event the amount of Tenant's Pro Rata Share of Operating Costs exceeds the sum of the monthly installments actually paid by Tenant for such calendar year, Tenant shall pay to Landlord the difference within 30 days following receipt of the Operating Costs Statement. In the event the sum of the monthly installments actually paid by Tenant for such calendar year exceeds the amount of Tenant's Pro Rata Share of Operating Costs actually due and owing, the difference shall be applied as a credit to Tenant's future Pro Rata Share of Operating Costs payable by Tenant pursuant to this Section, or if the Term has expired, the excess shall be refunded to Tenant within 30 days after delivery of such Operating Costs Statement. iv. Should Tenant dispute any amount shown on the Operating Costs Statement, Tenant may audit Landlord's books and records for the calendar year covered by such Operating Costs Statement upon written notice to Landlord given within 90 days after Tenant's receipt of such Operating Costs Statement. If Tenant fails to provide notice of dispute within such 90- day period, the Operating Costs Statement shall be final and conclusive. Any audit conducted by Tenant shall be completed within 60 days after Tenant's request therefor. If Landlord concurs with the audit results, and (x) if the audit reveals that Tenant's Pro Rata Share of Operating Costs exceeds the sum of the monthly installments actually paid by Tenant for such calendar year, Tenant shall pay to Landlord the difference within 30 days following completion of the audit; or (y) If the audit reveals that the sum of the monthly installments actually paid by Tenant for such calendar year exceeds the amount of Tenant's Pro Rata Share of Operating Costs Page 4 of 18 Page 188 of 263 actually due and owing, the difference shall be applied as a credit to Tenant's future Pro Rata Share of Operating Costs payable by Tenant pursuant to this Section, or if the term has expired, the excess shall be refunded to Tenant within 30 days after completion of the audit. If Landlord does not concur with the results of Tenant's audit, the parties shall within twenty (20) days thereafter agree on a neutral auditor who shall complete an audit within thirty (30) days after selection, and the decision of the neutral auditor shall be binding on the parties. The parties shall share evenly in the costs of any such neutral auditor. Landlord and Tenant shall cooperate as may be reasonably necessary in order to facilitate the timely completion of any audit. Nothing in this Section shall in any manner modify Tenant's obligations to make payments as and when provided under this Lease. X. EXPENSES. TRIPLE NET (NNN). Tenant's Initials Landlord's Initials _ 4� t�- 't�p3 13aj -ARat%j It is the intention of the Parties that this Lease shall be considered a "Triple Net Lease". a. Operating Expenses. The Landlord shall have no obligation to provide any services, perform any acts, or pay expenses, charges, obligations or costs of any kind whatsoever with respect to the Premises. The Tenant hereby agrees to pay--P—' Percent C %) of any and all Operating Expenses as hereafter defined for the entire term of the Lease and any extensions thereof in accordance with specific provisions hereinafter set forth (Tenant's Pro Rata Share). The Pro Rata Share is based on the ratio of the rentable area of the Premises states in Section H. Tenant's Base Rent and Pro Rata Share shall be proportionally adjusted in the event of any adjustment to the Premises, Building's, or Property's rentable floor area. The term "Operating Expenses" shall include all costs to the Landlord of operating and maintaining the Premises as noted in Section IX. b.Taxes. Tenant shall pay all taxes, assessments, liens and license fees ("Taxes") levied, assessed or imposed by any authority having the direct or indirect power to tax or assess any such liens, related to or required by Tenant's use of the Premises as well as all Taxes on Tenant's personal property located on the Premises. Landlord shall pay all taxes and assessment s with respect to the Property, all of which shall be included in Operating Costs and subject to partial reimbursement by tenant as set forth in Section IX. c.Insurance. a. Tenant's Liability Insurance. During the Term, Tenant shall pay for and maintain commercial general liability insurance with broad form property damage and contractual liability endorsements. This policy shall (i) contain an endorsement identifying Landlord, its property manager (if any), and other parties designated by Landlord, as additional insureds using an endorsement form acceptable to Landlord, (ii) insure Tenant's activities and those of Tenant's employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees with respect to the Premises against loss, damage or liability for personal injury or bodily injury (including death) or loss or damage to property with a combined single limit of not less than $2,000,000 per occurrence, and a deductible of not more than $10,000, and (iii) contain a provision requiring the insurer to deliver or mail written notice of cancellation to the named insureds at least (45) days before the effective date of the cancellation. Tenant's insurance will be primary and noncontributory with any Page 5 of 18 Page 189 of 263 liability insurance carried by Landlord. Landlord may also require Tenant to obtain and maintain at Tenant's sole cost business income coverage for at least six (6) months, business auto liability coverage, and, if applicable to Tenant's Permitted Use, liquor liability insurance and/or warehouseman's coverage b. Tenant's Property Insurance. During the Term, Tenant shall pay for and maintain special form clauses of loss coverage property insurance (with coverage for earthquake if required by Landlord's lender and, if the Premises are situated in a flood plain, flood damage) for all of Tenant's personal property, fixtures and equipment, Tenant's Work, and Alterations, in the amount of their full replacement value, with a deductible of not more than $10,000. c. Miscellaneous. Tenant's insurance required under this Section shall be with companies rated A-NII or better in Best's Insurance Guide, and which are admitted in the State of Washington. No insurance policy shall be cancelled or reduced in coverage and each such policy shall provide that it is not subject to cancellation or a reduction in coverage except after 30 days prior written notice to Landlord. Tenant shall deliver to Landlord, prior to Tenant's first taking possession of or occupying the Premises, and from time to time thereafter, copies of the insurance policies or evidence of insurance and copies of endorsements required by this Section. In no event shall the limits of such policies be considered as limiting the liability of Tenant under this Lease. If Tenant fails to acquire or maintain any insurance or provide any policy or evidence of insurance required by this Section, and such failure continues for three (3) days after notice from Landlord, Landlord may, but shall not be required to, obtain such insurance for Landlord's benefit and Tenant shall reimburse Landlord for the costs of such insurance upon demand. Such amounts shall be Additional Rent payable by Tenant hereunder and in the event of non-payment thereof, Landlord shall have the same rights and remedies with respect to such non-payment as it has with respect to any other non-payment of Rent hereunder. d.Landlord's Insurance. Landlord shall carry special form clauses of loss coverage property insurance of the Building shell and core in the amount of their full replacement value, liability insurance with respect to the Common Areas, and such other insurance of such types and amounts as Landlord, in its discretion, shall deem reasonably appropriate. The cost of any such insurance shall be included in Operating Costs, and if such insurance is provided by a "blanket policy" insuring other parties or locations in addition to the Building, then only the portion of the premiums allocable to the Building and Property shall be included in Operating Costs. e. Waiver of Subrogation. Notwithstanding any other provision of this Lease to the contrary, Landlord and Tenant hereby release each other and any other tenant, their agents or employees, from responsibility for, and waive their entire claim of recovery for any loss or damage arising from any cause covered by insurance required to be carried or otherwise carried by each of them. Each party shall provide notice to the insurance carrier or carriers of this mutual waiver of subrogation, and shall cause its respective insurance carriers to waive all rights of subrogation against the other. This waiver shall not apply to the extent of the deductible amounts to any such policies or to the extent of liabilities exceeding the limits of such policies. Page 6 of 18 Page 190 of 263 Back to Agenda XI. UTILITIES AND SERVICES. Landlord shall provide the following services for the Premises (7) days per week, (24) hours per day, the cost of which shall be included in the Operating Costs to the extent not separately metered to and exclusively serving the Premises (with the costs of such separately metered services to be directly billed to and paid by Tenant): water; electricity; sewer; trash and/or recycling removal; and HVAC. Notwithstanding the foregoing, if Tenant's use of the Premises incurs utility service charges which are above those usual and customary for the Permitted Use, Landlord reserves the right to require Tenant to pay a reasonable additional charge for such usage. Tenant shall furnish all other utilities (including, but not limited to, telephone, internet, and cable service if available) and other services which Tenant requires with respect to the Premises, and shall pay, at Tenant's sole expense, the cost of all utilities separately metered to the Premises, and of all other utilities and other services which Tenant requires with respect to the Premises, except those to be provided by Landlord and included in Operating Expenses as described above. Landlord shall not be liable for any loss, injury or damage to person or property caused by or resulting from any variation, interruption, or failure of utilities due to any cause whatsoever, and Rent shall not abate as a result thereof. XII. LEASEHOLD IMPROVEMENTS. The Tenant agrees that no leasehold improvements, alterations or changes of any nature, (except for those listed on any attached addenda) shall be made to the leasehold premises or the exterior of the building without first obtaining the consent of the Landlord in writing, which consent shall not be unreasonably withheld, and thereafter, any and all leasehold improvements made to the Premises which become affixed or attached to the leasehold Premises shall remain the property of the Landlord at the expiration or termination of this Lease Agreement. Furthermore, any leasehold improvements shall be made only in accordance with applicable federal, state or local codes, ordinances or regulations, having due regard for the type of construction of the building housing the subject leasehold Premises. If the Tenant makes any improvements to the Premises the Tenant shall be responsible for payment, except the following Nothing in the Lease shall be construed to authorize the Tenant or any other person acting for the Tenant to encumber the rents of the Premises or the interest of the Tenant in the Premises or any person under and through whom the Tenant has acquired its interest in the Premises with a mechanic's lien or any other type of encumbrance. Under no circumstance shall the Tenant be construed to be the agent, employee or representative of Landlord. In the event a lien is placed against the Premises, through actions of the Tenant, Tenant will promptly pay the same or bond against the same and take steps immediately to have such lien removed. If the Tenant fails to have the Lien removed, the Landlord shall take steps to remove the lien and the Tenant shall pay Landlord for all expenses related to the Lien and removal thereof and shall be in default of this Lease. Leasehold improvements shall include (i) any of Tenant's Work approved by Landlord; (ii) Tenant's Signage (as further provided in Section [1), or (iii) the installation of shelves, movable partitions, Tenant's equipment and trade fixtures that may be installed and removed without damaging existing improvements or the structural integrity of the Premises, the Building, or the Property. Tenant shall perform all work at Tenant's expense and in compliance with all applicable laws and shall complete all Alterations in accordance with plans and specifications approved by Landlord, using contractors approved by Landlord, and in a manner so as not to unreasonably interfere with other tenants. Tenant shall pay when due, or furnish a bond for payment of (as set forth in Section 20), all claims for labor or materials furnished to or for Tenant at, or for use in, the Premises, which claims are or Page 7 of 18 Page 191 of 263 Back to Agenda may be secured by any mechanics' or materialmens' liens against the Premises or the Property or any interest therein. XHI. Common Areas. a. Definition. The term "Common Areas" means all areas, facilities and building systems that are provided and designated from time to time by Landlord for the general non-exclusive use and convenience of Tenant and other tenants of the Property and which are not leased or held for the exclusive use of a particular tenant. To the extent that such areas and facilities exist within the Property, Common Areas include hallways, entryways, stairs, elevators, driveways, walkways, terraces, docks, loading areas, restrooms, trash facilities, parking areas and garages, roadways, pedestrian sidewalks, landscaped areas, security areas, lobby or mall areas, common HVAC systems, common electrical service, equipment and facilities, and common mechanical systems, equipment and facilities. Tenant shall comply with, and shall use commercially reasonable efforts to cause its employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees to comply with, reasonable rules and regulations concerning the use of the Common Areas adopted by Landlord from time to time, and shall not interfere with the use of Common Areas by others. Without advance notice to Tenant and without any liability to Tenant, Landlord may change the size, use, or nature of any Common Areas, erect improvements on the Common Areas or convert any portion of the Common Areas to the exclusive use of Landlord or selected tenants, so long as Tenant is not thereby deprived of the substantial benefit of the Premises. Landlord reserves the use of exterior walls and the roof of the Building and other improvements at the Property, and the right to install, maintain, use, repair and replace pipes, ducts, conduits, and wires leading through the Premises in areas which will not materially interfere with Tenant's use thereof. b. Use of the Common Areas. Tenant shall have the non-exclusive right, in common with such other tenants of the Property to whom Landlord has granted or may grant such rights, to use the Common Areas. c. Maintenance of the Common Areas. Landlord shall maintain the Common Areas in good order, condition and repair. This maintenance cost shall be includable in Operating Costs pursuant to Section IX. In performing such maintenance, Landlord shall use commercially reasonable efforts to minimize interference with Tenant's use and enjoyment of the Premises. XIV. LICENSES AND PERMITS. A copy of any and all local, state or federal permits acquired by the Tenant which are required for the use of the Premises shall be kept on site at all times and shall be readily accessible and produced to the Landlord and/or their agents or any local, state, or federal officials upon demand. XV. REPAIRS AND MAINTENANCE; SURRENDER. Tenant shall, at its sole cost and expense, maintain the entire Premises in good condition and promptly make all non-structural repairs and replacements necessary to keep the Premises safe and in good condition, including all HVAC components and other utilities and systems to the extent exclusively serving the Premises. Landlord shall maintain and repair the Building structure, foundation, subfloor, exterior walls, roof structure and surface, and HVAC components and other utilities and systems to the extent serving more than just the Premises, and the Common Areas. the costs of which shall be included as Operating Costs unless otherwise expressly excluded pursuant to Section S(a). Tenant shall not damage any demising wall or disturb the structural integrity of the Premises, the Building, or the Property and shall promptly repair any damage or injury done to any such demising walls or structural elements caused by Tenant or its employees, officers, agents, servants, contractors, Page 8 of 18 Page 192 of 263 customers, clients, visitors, guests, or other licensees or invitees. Notwithstanding anything in this Section to the contrary, Tenant shall not be responsible for any repairs to the Premises made necessary by the negligence or willful misconduct of Landlord or its employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees therein. If Tenant fails to perform Tenant's obligations under this Section, Landlord may at Landlord's option enter upon the Premises after 10 days' prior notice to Tenant and put the same in good order, condition and repair and the cost thereof, together with interest thereon at the Default Rate set forth in Section 4, shall be due and payable as Additional Rent to Landlord together with Tenant's next installment of Base Rent. Upon expiration or earlier termination of the Term, Tenant shall promptly and peacefully surrender the Premises to Landlord, together with all keys, in materially as good condition as when received by Tenant from Landlord or as thereafter improved (but subject to any obligations to remove any Tenant's Work and Alterations and/or restore the same as further provided in this Lease), reasonable wear and tear and insured casualty excepted. XVI. ACCESS AND RIGHT OF ENTRY. After 24 hours' notice from Landlord (except in cases of emergency, when no notice shall be required), Tenant shall permit Landlord and its agents, employees and contractors to enter the Premises at all reasonable times to make repairs, inspections, alterations or improvements, provided that Landlord shall use reasonable efforts to minimize interference with Tenant's use and enjoyment of the Premises. This Section shall not impose any repair or other obligation upon Landlord not expressly stated elsewhere in this Lease. After reasonable notice to Tenant, Landlord shall have the right to enter the Premises for the purpose of (a) showing the Premises to prospective purchasers or lenders at any time, and to prospective tenants within 180 days prior to the expiration or sooner termination of the Term; and (b) posting "for lease" signs within 180 days prior to the expiration or sooner termination of the Term. XVII. SIGNAGE. Tenant shall obtain Landlord's written consent as to size, location, materials, method of attachment, and appearance, before installing any signs upon the Premises. Tenant shall install and maintain any approved signage ("Signage") at Tenant's sole expense and in compliance with all applicable laws. Any Signage installed by Tenant shall be removed from the Premises, Building and Property at Tenant's expense upon the expiration or earlier termination of the Term. Tenant shall not damage or deface the Premises in installing or removing Signage and shall repair any injury or damage to the Premises caused by such installation or removal. XVIII. INSURANCE. In the event the Tenant shall fail to obtain insurance required hereunder and fails to maintain the same in force continuously during the term, Landlord may, but shall not be required to, obtain the same and charge the Tenant for same as additional rent. Furthermore, Tenant agrees not to keep upon the Premises any articles or goods which may be prohibited by the standard form of fire insurance policy, and in the event the insurance rates applicable to fire and extended coverage covering the Premises shall be increased by reason of any use of the Premises made by Tenant, then Tenant shall pay to Landlord, upon demand, such increase in insurance premium as shall be caused by said use or Tenant's proportionate share of any such increase. XIX. SUBLET/ASSIGNMENT. Tenant shall not assign, sublet, mortgage, encumber or otherwise transfer any interest in this Lease (collectively referred to as a "Transfer") or any part of the Premises, without first obtaining Landlord's written consent, which shall not be unreasonably withheld, conditioned, or delayed. No Transfer shall relieve Tenant of any liability under this Lease notwithstanding Landlord's consent to such Transfer. Consent to any Transfer shall not operate as a waiver of the necessity for Landlord's consent to any subsequent Transfer. In connection with each request for consent to a Transfer, Tenant shall pay the reasonable cost of processing the same, including attorneys' fees, upon demand of Landlord, up to a maximum of $1,250. Page 9 of 18 Page 193 of 263 Lack to Agenda Any transfer of this Lease by merger, consolidation, redemption or liquidation of Tenant, or any change in the ownership of, or power to vote, which singularly or collectively represents a majority of the beneficial interest in Tenant, shall constitute a Transfer under this Section. As a condition to Landlord's approval, if given, any potential assignee or sublessee otherwise approved by Landlord shall assume all obligations of Tenant under this Lease and shall be jointly and severally liable with Tenant and any guarantor for the payment of Rent and performance of all obligations of Tenant under this Lease. In connection with any Transfer, Tenant shall provide Landlord with copies of all assignments, subleases and assumption agreements and related documents. XX. LIENS. Tenant is not authorized to subject the Landlord's assets to any liens or claims of lien. Tenant shall keep the Property and Premises free from any liens created by or through Tenant. Tenant shall indemnify, defend, and hold Landlord and the Property and Premises harmless from liability for any such liens including, without limitation, liens arising from any of Tenant's Work or Alterations. If a lien is filed against the Premises by any person claiming by, through or under Tenant, Tenant shall have the right to contest the correctness or validity of the lien, provided, however, within 10 days after Landlord's demand, at Tenant's expense, Tenant shall either remove the lien, or shall procure and record a lien release bond issued by a surety satisfactory to Landlord in form and amount sufficient to satisfy statutory requirements for satisfaction and release of the subject lien(s) from the Premises and Property. Tenant shall indemnify landlord, the Premises, and the Property from and against all liabilities, costs and expenses, including attorneys' fees, which Landlord could reasonably incur as a result of such lien. XXI. DAMAGE OR CONDEMNATION. a. Damage and Repair. If the Premises or the portion of the Building or the Property necessary for Tenant's occupancy are partially damaged by fire or other insured casualty but not rendered untenantable, then Landlord shall diligently restore the Premises and the portion of the Property necessary for Tenant's occupancy to the extent required below and this lease shall not terminate. Tenant may, however, terminate the Lease if Landlord is unable to restore the Premises within six (6) months of the casualty event by giving 20 days' written notice of termination. The Premises or the portion of the Building or the Property necessary for Tenant's occupancy shall not be deemed untenantable if 25% or less of each of those areas are damaged. If insurance proceeds are not available or are not sufficient to pay the entire cost of restoring the Premises, or if Landlord's lender does not permit all or any part of the insurance proceeds to be applied toward restoration, then Landlord may elect to terminate this Lease and keep the insurance proceeds, by notifying Tenant within 60 days of the date of such casualty. If the Premises, the portion of the Building or the Property necessary for Tenant's occupancy, or 50% or more of the rentable area of the Property are entirely destroyed, or partially damaged and rendered untenantable, by fire or other casualty, Landlord may, at its option: (a) terminate this Lease as provided herein, or (b) restore the Premises and the portion of the Property necessary for Tenant's occupancy to their previous condition to the extent required below; provided, however, if such casualty event occurs during the last six (6) months of the Term (after considering any option to extend the term timely exercised by Tenant) then either Tenant or Landlord may elect to terminate the Lease. If, within 60 days after receipt by Landlord from Tenant of written notice that Tenant deems the Page 10 of 18 Page 194 of 263 Premises or the portion of the Property necessary for Tenant's occupancy untenantable, Landlord fails to notify Tenant of its election to restore those areas, or if Landlord is unable to restore those areas within six (6 )months of the date of the casualty event, then Tenant may elect to terminate the Lease upon 20 days' notice to Landlord unless Landlord, within such 20 day period, notifies Tenant that it will in fact restore the Premises or actually completes such restoration work to the extent required below, as applicable. If Landlord restores the Premises or the Property under this Section, Landlord shall proceed with reasonable diligence to complete the work, and Base Rent shall be abated in the same proportion as the untenantable portion of the Premises bears to the whole Premises, provided that there shall be a Base Rent abatement only if the damage or destruction of the Premises or the Property did not result from, or was not contributed to directly or indirectly by the act, fault or neglect of Tenant, or Tenant's employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees. No damages, compensation or claim shall be payable by Landlord for inconvenience, loss of business or annoyance directly, incidentally or consequentially arising from any repair or restoration of any portion of the Premises or the Property. Landlord shall have no obligation to carry insurance of any kind for the protection of Tenant; any Alterations or improvements paid for by Tenant; Signage; Tenant's furniture; or on any fixtures, equipment, improvements or appurtenances of Tenant under this Lease, and Landlord's restoration obligations hereunder shall not include any obligation to repair any damage thereto or replace the same. b. Condemnation. If the Premises, the portion of the Building or the Property necessary for Tenant's occupancy, or 50% or more of the rentable area of the Property are made untenantable by eminent domain, or conveyed under a threat of condemnation, this Lease shall terminate at the option of either Landlord or Tenant as of the earlier of the date title vests in the condemning authority or the condemning authority first has possession of the Premises or the portion of the Property taken by the condemning authority. All Rents and other payments shall be paid to that date. If the condemning authority takes a portion of the Premises or of the Building or the Property necessary for Tenant's occupancy that does not render them untenantable, then this Lease shall continue in full force and effect and Rent shall be equitably reduced based on the proportion by which the floor area of any structures is reduced. The reduction in Rent shall be effective on the earlier of the date the condemning authority first has possession of such portion or title vests in the condemning authority. The Premises or the portion of the Building or the Property necessary for Tenant's occupancy shall not be deemed untenantable if 25% or less of each of those areas are condemned. Landlord shall be entitled to the entire award from the condemning authority attributable to the value of the Premises or the Building or the Property and Tenant shall make no claim for the value of its leasehold. Tenant shall be permitted to make a separate claim against the condemning authority for moving expenses, provided that in no event shall Tenant's claim reduce Landlord's award. XXII. DEFAULT AND POSSESSION. Each of the following events shall be an "Event of Default" by Tenant under this Lease: a. Failure To Pay. Failure by Tenant to pay any sum, including Rent, due under this Lease following five (5) days' notice from Landlord of the failure to pay. Page 11 of 18 Page 195 of 263 b. Vacation/Abandonment. Vacation by Tenant of the Premises (defined as an absence for at least 15 consecutive days without prior notice to Landlord), or abandonment by Tenant of the Premises (defined as an absence of five (5) days or more while Tenant is in breach of some other term of this Lease). Tenant's vacation or abandonment of the Premises shall not be subject to any notice or right to cure. c. Insolvency. Tenant's insolvency or bankruptcy (whether voluntary or involuntary); or appointment of a receiver, assignee or other liquidating officer for Tenant's business; provided, however, that in the event of any involuntary bankruptcy or other insolvency proceeding, the existence of such proceeding shall constitute an Event of Default only if such proceeding is not dismissed or vacated within 60 days after its institution or commencement. d. Levy or Execution. The taking of Tenant's interest in this lease or the Premises, or any part thereof, by execution or other process of law directed against Tenant, or attachment of Tenant's interest in this Lease by any creditor of Tenant, if such attachment is not discharged within 15 days after being levied. e. Other Non -Monetary Defaults. The breach by Tenant of any agreement, term or covenant of this Lease other than one requiring the payment of money and not otherwise enumerated in this Section or elsewhere in this Lease, which breach continues for a period of 30 days after notice by Landlord to Tenant of the breach, provided that, if the nature of such default is such that it cannot be cured within such 30 day period, no Event of Default shall occur so long as Tenant commences such cure within 30 days of notice by Landlord and diligently pursues such cure to completion, but in no event longer than 60 days from the date of Landlord's notice. f. Failure to Take Possession. Failure by Tenant to take possession of the Premises on the Commencement Date following five (5) days notice from the Landlord of Tenant's failure to take possession. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within 30 days notice to Landlord by Tenant provided that, if the nature of such default is such that it cannot be cured within such 30 day period, Landlord shall not be in default if Landlord commences such cure within 30 days of notice by Tenant and diligently pursues such cure to completion. If Landlord fails to cure any such default within the allotted time, Tenant's sole remedy shall be to seek actual money damages (but not consequential or punitive damages) for loss arising from Landlord's failure to discharge its obligations under this Lease. Nothing herein contained shall relieve Landlord from its duty to perform any of its obligations to the standard prescribed in this Lease. Any notice periods granted herein shall be deemed to run concurrently with and not in addition to any default notice periods required by law. XXIII. REMEDIES. Landlord shall have the following remedies upon an Event of Default. Landlord's rights and remedies under this lease shall be cumulative and not exclusive. a. Termination of Lease. Landlord may terminate Tenant's interest and the Lease, but no act by Landlord other than notice of termination from Landlord to Tenant shall terminate this Lease. The Lease shall terminate on the date specified in the notice of termination. Upon termination of this Lease, Tenant will remain liable to Landlord for damages in an amount Page 12 of 18 Page 196 of 263 Back to Agenda equal to t and other sums that would have been owing by Tenant under this Lease for the balance of the Term, less the net proceeds, if any, of any reletting of the Premises by Landlord subsequent to the termination, after deducting all of Landlord's Reletting Expenses (as defined below). Landlord shall be entitled to either collect damages from Tenant monthly on the days on which rent or other amounts would have been payable under the Lease, or alternatively, Landlord may accelerate Tenant's obligations under the Lease and recover from Tenant: (i) unpaid rent which had been earned at the time of termination; (ii) the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of rent loss that Tenant proves could reasonably have been avoided; (iii) the amount by which the unpaid rent for the balance of the term of the Lease after the time of award exceeds the amount of rent loss that Tenant proves could reasonably be avoided (discounting such amount by the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus 1 %); and (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the Lease, or which In the ordinary course would be likely to result from the Event of Default, including without limitation Reletting Expenses described below. b. Re -Entry and Reletting. Landlord may continue this Lease in full force and effect, and without demand or notice, re-enter and take possession of the Premises or any part thereof, expel the Tenant from the Premises and anyone claiming through or under the Tenant, and remove the personal property of either. Landlord may relet the Premises, or any part of them, in Landlord's or Tenant's name for the account of Tenant, for such period of time and at such other terms and conditions as Landlord, in its discretion, may determine. Landlord may collect and receive the rents for the Premises. To the fullest extent permitted by law, the proceeds of any reletting shall be applied: first, to pay Landlord all Reletting Expenses (defined below); second, to pay any indebtedness of Tenant to landlord other than rent; third, to the rent due and unpaid hereunder; and fourth, the residue, if any, shall be held by Landlord and applied in payment of other or future obligations of Tenant to Landlord as the same may become due and payable, and Tenant shall not be entitled to receive any portion of such revenue. Re-entry or taking possession of the Premises by Landlord under this Section shall not be construed as an election on Landlord's part to terminate this Lease, unless a notice of termination is given to Tenant Landlord reserves the right following any re-entry or reletting, or both, under this Section to exercise its right to terminate the Lease. Tenant will pay Landlord Rent and other sums which would be payable under this Lease if repossession had not occurred, less the net proceeds, if any, after reletting the Premises and after deducting Landlord's Reletting Expenses. "Reletting Expenses" is defined to include all expenses incurred by Landlord in connection with reletting the Premises, including without limitation, all repossession costs, brokerage commissions and costs for securing new tenants, attorneys' fees, remodeling and repair costs, costs for removing persons or property, costs for storing Tenant's property and equipment, and costs of tenant improvements and rent concessions granted by Landlord to any new Tenant, prorated over the life of the new lease. c. Waiver of Redemption Rights. Tenant, for itself, and on behalf of any and all persons claiming through or under Tenant, including creditors of all kinds, hereby waives and surrenders all rights and privileges which they may have under any present or future law, to redeem the Premises or to have a continuance of this Lease for the Term, or any extension thereof. Page 13 of 18 Page 197 of 263 d. Nonpayment of Additional Rent. All costs which Tenant is obligated to pay to landlord pursuant to this Lease shall in the event of nonpayment be treated as if they were payments of Rent, and Landlord shall have the same rights it has with respect to nonpayment of Rent. e. Failure to Remove Property. If Tenant fails to remove any of its property from the Premises at Landlord's request following an uncured Event of Default, Landlord may, at its option, remove and store the property at Tenant's expense and risk. If Tenant does not pay the storage cost within five (5) days of Landlord's request, Landlord may, at its option, have any or all of such property sold at public or private sale (and Landlord may become a purchaser at such sale), in such manner as Landlord deems proper, without notice to Tenant. Landlord shall apply the proceeds of such sale: (i) to the expense of such sale, including reasonable attorneys' fees actually incurred; (ii) to the payment of the costs or charges for storing such property; (iii) to the payment of any other sums of money which may then be or thereafter become due Landlord from Tenant under any of the terms hereof; and (iv) the balance, if any, to Tenant. Nothing in this Section shall limit Landlord's right to sell Tenant's personal property as permitted by law or to foreclose Landlord's lien for unpaid rent, if any. XXIV. INDEMNIFICATION. The Tenant hereby covenants and agrees to indemnify, defend and hold the Landlord harmless from any and all claims or liabilities which may arise from any cause whatsoever as a result of Tenant's use and occupancy of the Premises, and further shall indemnify the Landlord for any losses which the Landlord may suffer in connection with the Tenant's use and occupancy or care, custody and control of the Premises. The Tenant also hereby covenants and agrees to indemnify and hold harmless the Landlord from any and all claims or liabilities which may arise from any latent defects in the subject Premises that the Landlord is not aware of at the signing of the lease or at any time during the lease term. Except to the extent of claims arising out of Landlord's gross negligence or intentional acts of misconduct, Landlord shall not be liable for injury to Tenant's business or assets, or any loss of income therefrom or for damage to any property of Tenant or of its employees, officers, agents, servants, contractors, customers, clients, visitors, quests, or other licensees or invitees, or any other person in or about the Premises or the Property. This provision shall survive expiration or termination of this lease. XXV. BANKRUPTCY - INSOLVENCY. The Tenant agrees that in the event all or a substantial portion of the Tenant `s assets are placed in the hands of a receiver or a Trustee, and such status continues for a period of 30 days, or should the Tenant make an assignment for the benefit of creditors or be adjudicated bankrupt; or should the Tenant institute any proceedings under the bankruptcy act or any amendment thereto, then such Lease or interest in and to the leased Premises shall not become an asset in any such proceedings and, in such event, and in addition to any and all other remedies of the Landlord hereunder or by law provided, it shall be lawful for the Landlord to declare the term hereof ended and to re-enter the leased land and take possession thereof and all improvements thereon and to remove all persons therefrom and the Tenant shall have no further claim thereon. XXVI. SUBORDINATION AND ATTORNMENT. This Lease shall automatically be subordinate to any mortgage or deed of trust created by Landlord which is now existing or hereafter placed upon the Premises including any advances, interest, modifications, renewals, replacements or extensions {"Landlord's Mortgage"). Tenant shall attorn to the holder of any Landlord's Mortgage or any party acquiring the Premises at any sale or other proceeding under any Landlord's Mortgage provided the acquiring party assumes the obligations of Landlord under this Lease. Tenant shall promptly and in no event later than 15 days after request execute, acknowledge and deliver documents which the holder of any Landlord's Mortgage may reasonably require as further Page 14 of 18 Page 198 of 263 evidence of this subordination and attomment. Notwithstanding the foregoing, Tenant's obligations under this Section to subordinate in the future are conditioned on the holder of each Landlord's Mortgage and each party acquiring the Premises at any sale or other proceeding under any such Landlord's Mortgage not disturbing Tenant's occupancy and other rights under this Lease, so long as no uncured Event of Default by Tenant exists. XXVII. MISCELLANEOUS TERMS. I. Usage by Tenant: Tenant shall comply with all rules, regulations and laws of any governmental authority with respect to use and occupancy. Tenant shall not conduct or permit to be conducted upon the Premises any business or permit any act which is contrary to or in violation of any law, rules or regulations and requirements that may be imposed by any authority or any insurance company with which the Premises is insured, nor will the Tenant allow the Premises to be used in any way which will invalidate or be in conflict with any insurance policies applicable to the building. In no event shall explosives or extra hazardous materials be taken onto or retained on the Premises. Furthermore, Tenant shall not install or use any equipment that will cause undue interference with the peaceable and quiet enjoyment of the Premises by other tenants of the building. II. Condition of Premises/Inspection by Tenant: The Tenant has had the opportunity to inspect the Premises and acknowledges with its signature on this lease that the Premises are in good condition and comply in all respects with the requirements of this Lease. Furthermore, the Landlord makes no representation or warranty with respect to the condition of the Premises or its fitness or availability for any particular use, and the Landlord shall not be liable for any latent or patent defect therein. Furthermore, the Tenant represents that Tenant has inspected the Premises and is leasing and will take possession of the Premises with all current fixtures present in their "as is" condition as of the date hereof. III. Right of Entry: It is agreed and understood that the Landlord and its agents shall have the complete and unencumbered right of entry to the Premises at any time or times for purposes of inspecting or showing the Premises. XXVIII. ESTOPPEL CERTIFICATE. Tenant shall, from time to time, upon written request of landlord, execute, acknowledge and deliver to Landlord or its designee a written statement specifying the following, subject to any modifications necessary to make such statements true and complete: (i) the total rentable square footage of the Premises; (ii) the date the Term commenced and the date it expires; (iii) the amount of minimum monthly Rent and the date to which such Rent has been paid; (iv) that this Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way; (v) that this Lease represents the entire agreement between the parties; (vi) that all obligations under this Lease to be performed by either party have been satisfied; (viij that there are no existing claims, defenses or offsets which the Tenant has against the enforcement of this Lease by Landlord; (viii) the amount of Rent, If any, that Tenant paid in advance; (ix) the amount of security that Tenant deposited with Landlord; (x) if Tenant has sublet all or a portion of the Premises or assigned its interest in the Lease and to whom; (xi) if Tenant has any option to extend the Term of the Lease or option to purchase the Premises; and (xii) such other factual matters concerning the Lease or the Premises as Landlord may reasonably request. Tenant acknowledges and agrees that any statement delivered pursuant to this Section may be relied upon by a prospective purchaser of Landlord's interest or assignee of any mortgage or new mortgagee of Landlord's interest in the Premises. If Tenant shall fail to respond within 10 days to Landlord's request for the statement required by this Section, Landlord may provide the statement and Tenant shall be deemed to have admitted the accuracy of the information provided by Landlord. Page 15 of 18 Page 199 of 263 XXIX. HOLDOVER. If Tenant shall, without the written consent of landlord, remain in possession of the Premises and fail to return them to Landlord after the expiration or termination of this Lease, the tenancy shall be a holdover tenancy at sufferance, which may be terminated according to Washington law. During such tenancy, Tenant agrees to pay to Landlord 150% of the rate of rental last payable under this Lease, unless a different rate is agreed upon by Landlord. All other terms of the Lease shall remain in effect other than any options to extend the Term. Tenant acknowledges and agrees that this Section does not grant any right to Tenant to holdover, and that Tenant may also be liable to Landlord for any and all damages or expenses which Landlord may have to incur as a result of Tenant's holdover. XXX. NON -WAIVER. Landlord's waiver of any breach of any provision contained in this Lease shall not be deemed to be a waiver of the same provision for subsequent acts of Tenant. The acceptance by Landlord of Rent or other amounts due by Tenant hereunder shall not be deemed to be a waiver of any previous breach by Tenant. XXXI. NOTICES. All notices under this Lease shall be in writing and effective (i) when delivered in person or via overnight courier to the other party, or (ii) three (3) days after being sent by registered or certified mail to the other party at the address set forth in Section I. The addresses for notices and payment of rent set forth in Section I may be modified by either party only by written notice delivered in conformance with this Section. XXXIII. GOVERNING LAW. This Lease shall be governed by the laws of the State of Washington. XXV. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord engage the services of an attorney to collect monies due or to bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by Landlord for the recovery of Rent or other payments, or possession of the Premises, the losing party shall pay the prevailing party a reasonable sum for attorneys' fees in such action, whether in mediation or arbitration, at trial, on appeal, or in any bankruptcy proceeding. XXVI. TRANSFER OF LANDLORD'S INTEREST. This Lease shall be assignable by Landlord without the consent of Tenant. In the event of any transfer or transfers of Landlord's interest in the Premises, other than a transfer for collateral purposes only, upon the assumption of this Lease by the transferee, Landlord shall be automatically relieved of obligations and liabilities accruing from and after the date of such transfer, including any liability for any retained security deposit or prepaid rent, for which the transferee shall be liable, and Tenant shall attorn to the transferee. 35. GENERAL. a. Heirs and Assigns. This Lease shall apply to and be binding upon Landlord and Tenant and their respective heirs, executors, administrators, successors and assigns. b. Entire Agreement. This Lease contains all of the covenants and agreements between Landlord and Tenant relating to the Premises. No prior or contemporaneous agreements or understandings pertaining to the Lease shall be valid or of any force or effect and the covenants and agreements of this Lease shall not be altered, modified or amended except in writing, signed by Landlord and Tenant. Page 16 of 18 Page 200 of 263 c. Severability. Any provision of this Lease which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision of this Lease. d. Force Majeure. Time periods for either party's performance under any provisions of this Lease (excluding payment of Rent) shall be extended for periods of time during which the party's performance is prevented due to circumstances beyond such party's control, including without limitation, fires, floods, earthquakes, lockouts, strikes, embargoes, governmental regulations, acts of God, public enemy, war or other strife; provided in no event shall any of the foregoing events operate to extend the Term of this Lease. e. No Light, Air or View Easement. Tenant has not been granted an easement or other right for light, air or view to or from the Premises. Any diminution or shutting off of light, air or view by any structure which may be erected on or adjacent to the Building shall in no way affect this Lease or the obligations of Tenant hereunder or impose any liability on Landlord. f. Authority of Parties. Each party to this Lease represents and warrants to the other that the person executing this Lease on behalf of such party has the authority to enter into this Lease on behalf of such party, that the execution and delivery of this lease has been duly authorized, and that upon such execution and delivery, this Lease shall be binding upon and enforceable against such party. g. Time. "Day" as used herein means a calendar day and "business day" means any day on which commercial banks are generally open for business in the state where the Premises are situated. Any period of time which would otherwise end on a non -business day shall be extended to the next following business day. Time is of the essence of this Lease. h. Quiet Enjoyment. Provided Tenant pays Rent and performs all ofrts obligations in this Lease, Tenant's possession of the Premises will not be disturbed by Landlord or anyone claiming by, through or under Landlord. i. Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at the option of Landlord, terminate all or any existing subtenancies or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subtenancies. j. Counterparts. This contract may be signed by and returned by one or more counterparts. All signatures are binding on Tenant and Landlord. XXVH. AMENDMENT. No amendment of this Lease shall be effective unless reduced to writing and subscribed by the parties with all the formality of the original. XXVIII. BINDING EFFECT. This Lease and any amendments thereto shall be binding upon the Landlord and the Tenants and/or their respective successors, heirs, assigns, executors and administrators. // // Signature page to follow. // Page 17 of 18 Page 201 of 263 Back to Agenda IN WITNESS WHEREOF, the parties hereto set their hands and seal this day of 20 Landlo d's Signature Printed Name Title a Landlord's Signature Printed Name Title Tenant's Signature Printed Name Title Tenant's Signature Printed Name ACKNOWLEDGMENT OF NOTARY PUBLIC STATE OF WasV►i61g110n COUNTY OF K-4+6W Title On this t4i" day of iJtCr-Mbar' 2022T before me appeared V_6 C ii ill-jrr6 e" , as LANDLORD of this Commercial Lease Agreement who proved to me through government issued photo identification to be the above -named person, in my presence executed foregoing instrument and acknowledged that they executed the same as their free act and deed. Notary Public State of Washington KIM E LUNDgUIST License Number 17481 MY COMMISSION EXPIRES rAM`'I E Lt nC)gLj fSj" Notary Public My Commission Expires: �• �Z� ACKNOWLEDGMENT OF NOTARY PUBLIC STATE OF COUNTY OF On this day of 1 20 , before me appeared , as TENANT(S) of this Commercial Lease Agreement who proved to me through government issued photo identification to be the above -named person, in my presence executed foregoing instrument and acknowledged that they executed the same as their free act and deed. Notary Public My Commission Expires: Page 18 of 18 Page 202 of 263 Back to Agenda FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT THIS FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT ("Agreement") is entered into and effective as of , 2022 ("Effective Date") by and between Hillstrom Holdings, LLC, a Washington limited liability company ("Landlord"), and the City of Port Orchard, a Washington municipal corporation ("Tenant"). Landlord and Tenant may be referred to herein individually as a "fa!:ff'and collectively as the "Parties". RECITALS A. Landlord and Tenant entered into the certain Commercial Lease Agreement, dated (2- 2 S"' 2Z_ , 2022 ("Lease") for lease the Premises commonly known as Suite 101 ("Premises") located at the property commonly known as the Greenwood Building, 600 Kitsap St. Port Orchard, WA 98366 and legally described in Exhibit A ("Pro a "). B. The Lease, for a 36-month term to begin on January 1, 2023, contains boilerplate language that does not match the intention of Landlord and Tenant with respect to the terms and conditions the Parties desire to enter into with respect to the Lease, and is missing a legal description and acknowledgments. C. Landlord and Tenant desire to ratify and amend the Lease upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, incorporating the foregoing Recitals herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Base Rent and Operating Costs. Notwithstanding any other provision to the contrary in the Lease, Landlord and Tenant agree that Tenant shall not be responsible for any Operating Costs, including, without limitation, real property tax assessments, Landlord's property insurance, storm water, water, sanitary sewer, garbage disposal, janitorial services, restroom supplies, or maintenance, repairs or replacements of all or any portion of the Property or the Common Areas; provided, Tenant shall pay for its electricity costs for the Premises, which electricity costs are metered. Tenant shall pay for such electricity costs �--pry O f a . �LtrO--TAIZ 6 IC Igo PuT�n/�a i H � WX&Ar�1 2. Landlord Entry. Landlord acknowledges that Tenant intends to use the Premises for purposes that may involve confidential information, including criminal investigations and confidential information of the City of Port Orchard. Landlord agrees to exercise its rights to enter the Premises subject to the right of Tenant to maintain security and confidentiality of information and records contained in the Premises, including the right to restrict access during sensitive meetings and the right to restrict access to portions of the Premises containing confidential or sensitive information or records. 3. Revision to Section XXIV. The Parties agree to delete the following portion of Section XXIV of the Lease: "The Tenant also hereby covenants and agrees to indemnify and hold harmless the Landlord from any and all claims or liabilities which may arise from any latent defects in the subject Premises that the Landlord is not aware of at the signing of the lease or at any time during the lease term." 4. ParkinP. Landlord agrees to provide four (4) off-street parking spaces to Tenant on an exclusive basis at no additional cost. First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 1 of 7 Page 203 of 263 Back to Agenda 5. Maintenance and Repairs. Landlord shall maintain at its sole cost in good repair and replace, as needed, the Property, including, without limitation, the HVAC systems (including regular filter replacements and regular maintenance of thermostats, ductwork, and diffusers), mechanical systems, electrical systems, interior and exterior lighting systems, plumbing, flooring, windows, signs, elevators (if applicable), interior and exterior walls, all structural components of the building (including the roof, foundation, and siding), restrooms, lobbies, stairways, sidewalks, parking lot (including snow removal, cleaning, and restriping as required), wheel stops, storm water drainage, exterior paint, interior paint in the Common Areas, landscaping and other components of the Property. Landlord shall further continuously satisfy all governmental requirements generally applicable to similar office buildings, including, without limitation, compliance with fire codes, building codes, energy codes, indoor air quality, and Americans with Disabilities Act barrier -free restrooms and access. 6. Withholding Rent Pavments. In the event Landlord fails to promptly maintain, repair, or improve the Premises or the Property as set forth herein, Tenant shall have the right to withhold 50% of the Base Rent payments without late fees or default interest until such time as Landlord satisfies such maintenance, repair, or improvement obligations. 7. Compliance with Law. Landlord shall be responsible for complying with the Americans With Disabilities Act of 1990 (42 U.S.C. 12101-12213) and the Washington State Law Against Discrimination, Chapter 49.60 RCW, as well as regulations adopted thereunder, with respect to the Property and the Premises. 8. Prevailine Waee. Landlord agrees to pay the prevailing rate of wage to all workers, laborers, or mechanics employed in the performance of any part of this Lease when required by state law, and to comply with the provisions of Chapter 39.12 RCW, as amended, and the rules and regulations of the Department of Labor and Industries. The rules and regulations of the Department of Labor and Industries and the schedule of prevailing wage rates for the locality or localities where this Lease will be performed as determined by the Industrial Statistician of the Department of Labor and Industries, are by reference made a part of this Lease as though fully set forth herein. 9. Hazardous Substances. The term "Hazardous Substances" as used in this Agreement shall mean pollutants, contaminants, toxic wastes, or any other substances, the removal of which is required or the use of which is restricted, regulated, prohibited or penalized by any "Environmental Law." The term `Environmental Law" or "Environmental Laws" shall mean any federal, state or local law or ordinance relating to pollution or protection of the environment or public health. Landlord represents and warrants to Tenant that the Property does not contain asbestos or other Hazardous Substances of any kind, except, in the case of Hazardous Substances only and not asbestos, commercially reasonable quantities for construction purposes and cleaning agents and other substances normally used in the construction, operation and maintenance of office buildings and not prohibited by applicable law, all of which shall be stored, used and disposed of at Landlord's cost and without reimbursement from Tenant in accordance with all applicable local; state and federal laws. Landlord agrees not to use, dispose, store or generate any asbestos or Hazardous Substances in violation of any applicable law, rule or regulation in the Property. In the event such laws, rules or regulations require Landlord to remove or otherwise remedy the existence of any asbestos or Hazardous Substances discovered on the Property, Landlord agrees to promptly remove or remedy the violation. Landlord agrees to indemnify and hold Tenant harmless against any losses, damages, costs, liabilities and claims suffered by Tenant in connection with a breach by Landlord of its obligations set forth in this Section 9, except for such losses, damages, costs, liabilities and claims caused by Tenant's negligence or intentional misconduct. 10. ANTI -TERRORISM AND MONEY LAUNDERING REPRESENTATION AND INDEMNIFICATION. Landlord certifies that: (i) neither it nor its managers, members or controlling First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 2 of 7 Page 204 of 263 owners are acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN"); (ii) neither it nor its managers, members, or controlling owners are engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its managers, members, or controlling owners are in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Landlord hereby agrees to defend, indemnify, and hold harmless Tenant from and against any and all claims, damages, losses, risks, liabilities and expenses (including reasonable attorneys' fees and costs) arising from or related to any breach of the foregoing certification. Should Landlord, during the term of this Lease, be designated an SDN, Tenant may, at its sole option, terminate this Lease. 11. General Provisions. 11.1 Bindine Effect. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by each of the Parties and their permitted successors and assigns, and shall inure to the further benefit of, and be enforceable by, any Tenant or transferee permitted by the Lease. 11.2 Governinz Law. This Agreement shall be interpreted, governed, and construed under the laws of the State of Washington. 11.3 Amendment. Any amendments or waivers to this Agreement must be in writing and signed by each of the Parties. 11.4 Dispute Costs. In the event of any conflict, claim or dispute between the Parties hereto and arising out of or relating to the subject matter of this Agreement, whether or not such conflict, claim or dispute has its basis in law or in equity, the prevailing Party shall be entitled to receive from the non -prevailing Party(ies) all reasonable costs and expenses of every sort whatsoever including, but not limited to, arbitrators fees, mediation fees, deposition costs, expert witness fees, accounting expenses relating thereto, and actual attorneys fees incurred or expended whether or not arbitration or court proceedings are initiated, and including all such costs or expenses incurred or expended in arbitration, in trial, on appeal or in any bankruptcy or receivership proceeding. 11.5 Broker. Each Party represents that it has worked with no broker with respect to the Lease or this Agreement. Tenant and Landlord (each an "indemnitor") agree to indemnify and hold harmless the other Parties hereto, and their respective affiliates, successors and assigns, from and against claims, actions, judgments, liabilities, payments, losses, damages and expenses, including reasonable attorney's fees and court costs, suffered or incurred by reason of the indemnitor's breach of its respective representation in this Section. 11.6 Le al Representation. Each Party acknowledges that it has been represented, or has had an opportunity to obtain the representation of counsel with respect to this Agreement. Each Party represents to the others that it has read and understood the terms hereof and the consequences of executing the Lease and this Agreement. The Parties agree that the provisions of this Agreement shall not be construed against the Party who drafted the same. First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 3 of 7 Page 205 of 263 Back to Agenda 11.7 Authority. Each person signing this Agreement on behalf of a Party represents and warrants that he or she is authorized to execute and deliver this Agreement on behalf of such Party, and that upon such person's execution hereof, this Agreement shall become binding upon such Party. 11.8 Defined Terms. Terms not otherwise defined herein shall have the meanings set forth in the Lease. 11.9 Severability. If any provision of this Agreement or the application thereof to any person or circumstances shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. 11.10 Full Force and Effect. Except as specifically amended herein, all of the terms, provisions, covenants and conditions of the Lease shall remain unmodified and in full force and effect. This Agreement shall supersede all prior agreements and understanding of the Parties hereto with respect to the subject matter hereof. In the event of any inconsistencies between any part of this Agreement and the Lease, the provisions of this Agreement shall prevail. This Agreement may not be amended or modified in any manner other than in a writing signed by the Parties hereto, or their respective successors or assigns. (Remainder of Page Intentionally Blank) First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 4 of 7 Page 206 of 263 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the Effective Date. (Landlord) Hillstrom Holdings, LLC, A Washington limited liability co pany By: Keith Hillstrom Its Manager LANDLORD ACKNOWLEDGMENT STATE OF WASHINGTON ) ss. COUNTY OF I AA -bah ) This record was acknowledged before me on 2. W ,LOU- , 2022 (date), by Keith Hillstrom as Manager of Hillstrom Holdings, LLC. Notary. Public f State of Washington KIM E LUNDt�UIST License Number 17481 MY COMMISSION EXPIRES July 1.2026 _ Nl ulisfi Name: Wl tit �l-t-++ Notary Public in and for the State of Washington Residing at V-i t6AP Ca-Lvl.ty My appointment expires: -r. L Z4' Vo First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 5 of 7 Page 207 of 263 Back to Agenda (Tenant) City of Port Orchard, A Washington municipal corporation Lo Rob Putaansuu, Its Major Reviewed and approved: Charlotte Archer City Attorney TENANT ACKNOWLEDGMENT STATE OF WASHINGTON ss. COUNTY OF KITSAP This record was acknowledged before me on as Mayor of the City of Port Orchard. Name: , 2022 (date), by Rob Putaansuu Notary Public in and for the State of Washington Residing at My appointment expires: First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 6 of 7 Page 208 of 263 Back to Agenda Exhibit A Legal Description LOTS 1, 4, AND 5, BLOCK 7, S.M. STEVENS' TOWN PLAT OF SIDNEY; ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 1 OF PLATS AT PAGE 1, RECORDS OF KITSAP COUNTY, WASHINGTON; TOGETHER WITH THAT PORTION OF UNNAMED ALLEY AS CONVEYED BY THE CITY OF PORT ORCHARD UNDER KITSAP COUNTY RECORDING NO. 3221209; TOGETHER WITH THAT PORTION OF UNNAMED ALLEY AS CONVEYED BY HAZELLE M. SIMMONS UNDER KITSAP COUNY RECORDING NO.3221211. First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 7 of 7 Page 209 of 263 Back to Agenda HH HILLSTROM HOLDINGS LLC 11021 CRAMER RD. NW GIG HARBOR, WA 98329 COMMERCIAL LEASE AGREEMENT I. The Parties. This Commercial Lease Agreement ("Agreement") made this _28 daE_ of December , 20_22_ by and between: Landlord. pk t I,Txo t4w_fit t+ & S [Landlord's Name], of lko-at r_MA,n&e-Z iZn N la op_&vr_ [Landlord's Street Address], State of -("Landlord") 0 Tenant. _ (fi e� owe [Tenant's Name], of 2 t1. V"s j. t— SopT Re«a+e [Tenant's Street Address], State of ("Tenant"). Collectively, the Landlord and Tenant shall be referred to herein as the "Parties". The Parties agree as follows: H. DESCRIPTION OF LEASED PREMISES. The Landlord agrees to lease to the Tenant the following described square feet (SF) of commercial office space located at (, c o Y-C- SAP 'f', WA t Additional Description: Unit Number S L.► - : -4- Hereinafter known as the "Premises". III. USE OF LEASED PREMISES. The Landlord is leasing the Premises to the Tenant and the Tenant is hereby agreeing to lease the Premises for the following use and purpose: General office and administrative use. Any change in use or purpose the Premises other than as described above shall be upon prior written consent of Landlord only. IV. TERM OF LEASE. The term of this Lease shall be for a period of 3 year(s) month(s) commencing on the I_ day of �aAUa"A, 20 2_� and expiring at M dnight on the ,:;�L day of 20 ZS. ("Initial Term") V. BASE RENT. The net monthly payment shall be dollars ($_ J , '7 d o . __), payable monthly with the first payment due upon the commencement of the Lease and each monthly installment payable thereafter on the ls, day of each month ("Base Rent"). Rent payment for any period during the term hereon, which is for less than 1 month shall be a pro-rata portion of the monthly rent. Page 210 of 263 Back to Agenda a. Payment of Rent. Tenant shall pay Landlord without notice, demand, deduction or offset, in lawful money of the United States, the monthly Base Rent stated in this section in advance on or before the first day of each month during the Term beginning on the Commencement Date, and shall also pay any other additional payments, including Operating Costs, due to Landlord ("Additional Rent and together with Base Rent, "Rent") when required under this Lease. All payments due to Landlord under this Lease, including late fees and interest, shall also constitute Additional Rent, and upon Tenant's failure to pay any such costs, charges or expenses, Landlord shall have the same rights and remedies as otherwise provided in this Lease for the failure of Tenant to pay Rent. b. Late Charges; Default Interest. If any sums payable by Tenant to Landlord under this Lease are not received within five (5) business days after their due date, Tenant shall pay Landlord an amount equal to the greater of $100 or 5% of the delinquent amount for the cost of collecting and handling such late payment in addition to the amount due and as Additional Rent. All delinquent sums payable by Tenant to Landlord and not paid within five (5) business days after their due date shall, at Landlord's option, bear. interest at the rate of 15% per annum, or the highest rate of interest allowable by law, whichever is less (the "Default Rate"). Interest on all delinquent amounts shall be calculated from the original due date to the date of payment. Less Than Full Payment. Landlord's acceptance of less than the full amount of any payment due from Tenant shall not be deemed an accord and satisfaction or compromise of such payment unless Landlord specifically consents in writing to payment of such lesser sum as an accord and satisfaction or compromise of the amount which Landlord claims. Any portion that remains to be paid by Tenant shall be subject to the late charges and default interest provisions of this Section. VI. PREPAID RENT. Upon execution of this lease, Tenant shall deliver to Landlord the sum of $ —4�Y' as prepaid Rent, to be applied to Base Rent due for the first month of the lease. VII. SECURITY DEPOSIT. Upon execution of this lease, Tenant shall deliver to Landlord a sum of $ l,Qoo .— to be held as a security deposit pursuant to Section [] below. The security deposit shall be in the form of cash, check, or wire transfer. VIII. OPTION TO RENEW. Tenant may have the right to renew the Lease with a total of 2- renewal period(s) with each term being -:? year(s) � month(s) which may be exercised by giving written notice to Landlord no less than 60 days prior to the expiration of the Lease or renewal period. Rent for each option period shall: (check one) ❑ - Increase as calculated by multiplying the Base Rent by the annual change in the Consumer Price Index (CPI) published by the Bureau of Labor Statistics by the most recent publication to the option period start date. Increase by % A~,., //t GN /—/ — -o+` ' ❑ - Increase by dollars ($_ Page 2 of 18 Page 211 of 263 Back to Agenda IX. OPERATING COSTS a. Definition. As used herein, "Operating Costs" shall mean all costs of operating, maintaining and repairing the Premises, the Building, and the Property, determined in accordance with generally accepted accounting principles, and including without limitation the following: all taxes and assessments (Including, but not limited to, real and personal property taxes and assessments, local improvement district assessments and other special purpose assessments, and taxes on rent or gross receipts); insurance premiums paid by Landlord and (to the extent used) deductibles for insurance applicable to the Property; water, sewer and all other utility charges (other than utilities separately metered and paid directly by Tenant or other tenants); janitorial and all other cleaning services; refuse and trash removal; supplies, materials, tools, and equipment used in the operation, repair, and maintenance of the Property; refurbishing and repainting; carpet replacement; to the extent serving areas other than just the Premises, heating, ventilation and air conditioning (" I VAC") service, repair and replacement when necessary; elevator service and repair and replacement of elevators when necessary; pest control; lighting systems, fire detection and security services; landscape maintenance; management (fees and/or personnel costs); parking lot, road, sidewalk and driveway patching, resurfacing and maintenance; snow and ice removal; repair, maintenance, and, where reasonably required, replacement of signage; amortization of capital improvements as Landlord may in the future install to comply with governmental regulations and rules or undertaken in good faith with a reasonable expectation of reducing Operating Costs (the useful life of which shall be a reasonable period of time as determined by Landlord); costs of legal services (except those incurred directly relating to a particular occupant of the Building); and accounting services, labor, supplies, materials and tools. Landlord and Tenant agree that if the Building is not 90% occupied during any calendar year (including the Base Year, if applicable), on a monthly average, then those portions of the Operating Costs that are driven by occupancy rates, as reasonably determined by Landlord, shall be increased to reflect the Operating Costs of the Building as though it were 90% occupied and Tenant's Pro Rata Share of Operating Costs shall be based upon Operating Costs as so adjusted. Operating Costs shall not include: Landlord's income tax or general corporate overhead; depreciation or amortization on the Building or equipment therein; loan or ground lease payments; real estate broker's commissions; capital improvements to or major repairs of the Building shell (i.e., the Building structure, exterior walls, roof, and structural floors and foundations), except to the extent expressly permitted above; any costs regarding the operation, maintenance and repair of the Premises, the Building, or the Property paid directly by Tenant or other tenants in the Building or otherwise reimbursed to Landlord, or other cost for which another party is required to pay Landlord (except as part of operating cost recoveries under other tenant leases) so that Landlord shall not recover any item of cost more than once. If Tenant is renting a pad separate from any other structures on the Property for which Landlord separately furnishes the services described in this paragraph, then the term "Operating Costs" shall not include those costs of operating, repairing, and maintaining the enclosed mall which can be separately allocated to the tenants of the other structures. Operating Costs which cannot be separately allocated to the tenants of other structures may include but are not limited to: insurance premiums; taxes and assessments; management (fees and/or personnel costs); exterior lighting; parking lot, road, sidewalk and driveway patching, resurfacing and maintenance; snow and ice removal; and costs of legal services and accounting services. Page 3 of 18 Page 212 of 263 Back to Agenda b. Type of Payment. As Additional Rent, Tenant shall pay to Landlord on the first day of each month with payment of Base Rent one -twelfth of Tenant's Pro Rata Share of Operating Costs, which amount is determined in the manner set forth in Section IK(c) below. c. Method of Payment. Tenant shall pay to Landlord Operating Costs pursuant to the following procedure: i. Landlord shall provide to Tenant, on or before the Commencement Date, a good faith estimate of annual Operating Costs for the calendar year in which the Commencement Date occurs. Landlord shall also provide to Tenant, as soon as possible following the first day of each succeeding calendar year, a good faith estimate of Tenant's annual Pro Rata Share of Operating Costs for the then -current year. ii. Each estimate of Tenant's annual Pro Rata Share of Operating Costs determined by Landlord, as described above, shall be divided into 12 equal monthly installments. Tenant shall pay to Landlord such monthly installment of Operating Costs with each monthly payment of Base Rent. In the event the estimated amount of Tenant's Pro Rata Share of Operating Costs has not yet been determined for any calendar year, Tenant shall pay the monthly installment in the estimated amount determined for the preceding calendar year until the estimate for the current calendar year has been provided to Tenant. When the estimate for the current calendar year is received, Tenant shall then pay any shortfall or receive a credit for any surplus for the preceding months of the current calendar year and shall, thereafter, make the monthly installment payments in accordance with the current estimate. iii. As soon as reasonably possible following the end of each calendar year during the Term, Landlord shall provide to Tenant a statement (the "Operating Costs Statement') setting forth the amount of Operating Costs actually incurred and the amount of Tenant's Pro Rata Share of Operating Costs actually payable by Tenant with respect to such calendar year. In the event the amount of Tenant's Pro Rata Share of Operating Costs exceeds the sum of the monthly installments actually paid by Tenant for such calendar year, Tenant shall pay to Landlord the difference within 30 days following receipt of the Operating Costs Statement. In the event the sum of the monthly installments actually paid by Tenant for such calendar year exceeds the amount of Tenant's Pro Rata Share of Operating Costs actually due and owing, the difference shall be applied as a credit to Tenant's future Pro Rata Share of Operating Costs payable by Tenant pursuant to this Section, or if the Term has expired, the excess shall be refunded to Tenant within 30 days after delivery of such Operating Costs Statement. iv. Should Tenant dispute any amount shown on the Operating Costs Statement, Tenant may audit Landlord's books and records for the calendar year covered by such Operating Costs Statement upon written notice to Landlord given within 90 days after Tenant's receipt of such Operating Costs Statement. If Tenant fails to provide notice of dispute within such 90- day period, the Operating Costs Statement shall be final and conclusive. Any audit conducted by Tenant shall be completed within 60 days after Tenant's request therefor. If Landlord concurs with the audit results, and (x) if the audit reveals that Tenant's Pro Rata Share of Operating Costs exceeds the sum of the monthly installments actually paid by Tenant for such calendar year, Tenant shall pay to Landlord the difference within 30 days following completion of the audit; or (y) If the audit reveals that the sum of the monthly installments actually paid by Tenant for such calendar year exceeds the amount of Tenant's Pro Rata Share of Operating Costs Page 4 of 18 Page 213 of 263 actually due and owing, the difference shall be applied as a credit to Tenant's future Pro Rata Share of Operating Costs payable by Tenant pursuant to this Section, or if the term has expired, the excess shall be refunded to Tenant within 30 days after completion of the audit. If Landlord does not concur with the results of Tenant's audit, the parties shall within twenty (20) days thereafter agree on a neutral auditor who shall complete an audit within thirty (30) days after selection, and the decision of the neutral auditor shall be binding on the parties. The parties shall share evenly in the costs of any such neutral auditor. Landlord and Tenant shall cooperate as may be reasonably necessary in order to facilitate the timely completion of any audit. Nothing in this Section shall in any manner modify Tenant's obligations to make payments as and when provided under this Lease. X. EXPENSES. TRIPLE NET (NNN). Tenant's Initials Landlord's Initials _ 4�1 '603 r ao- --ARat%1 It is the intention of the Parties that this Lease shall be considered a "Triple Net Lease". a. QRerating. Ex enses. The Landlord shall have no obligation to provide any services, perform any acts, or pay expenses, charges, obligations or costs of any kind whatsoever with respect to the Premises. The Tenant hereby agrees to pay —4P'" Percent C_%) of any and all Operating Expenses as hereafter defined for the entire term of the Lease and any extensions thereof in accordance with specific provisions hereinafter set forth (Tenant's Pro Rata Share). The Pro Rata Share is based on the ratio of the rentable area of the Premises states in Section II. Tenant's Base Rent and Pro Rata Share shall be proportionally adjusted in the event of any adjustment to the Premises, Building's, or Property's rentable floor area. The term "Operating Expenses" shall include all costs to the Landlord of operating and maintaining the Premises as noted in Section IX. b.Taxes. Tenant shall pay all taxes, assessments, liens and license fees ("Taxes") levied, assessed or imposed by any authority having the direct or indirect power to tax or assess any such liens, related to or required by Tenant's use of the Premises as well as all Taxes on Tenant's personal property located on the Premises. Landlord shall pay all taxes and assessment s with respect to the Property, all of which shall be included in Operating Costs and subject to partial reimbursement by tenant as set forth in Section IX. c. Insurance. a. Tenant's Liability Insurance. During the Term, Tenant shall pay for and maintain commercial general liability insurance with broad form property damage and contractual liability endorsements. This policy shall (i) contain an endorsement identifying Landlord, its property manager (if any), and other parties designated by Landlord, as additional insureds using an endorsement form acceptable to Landlord, (ii) insure Tenant's activities and those of Tenant's employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees with respect to the Premises against loss, damage or liability for personal injury or bodily injury (including death) or loss or damage to property with a combined single limit of not less than $2,000,000 per occurrence, and a deductible of not more than $10,000, and (iii) contain a provision requiring the insurer to deliver or mail written notice of cancellation to the named insureds at least (45) days before the effective date of the cancellation. Tenant's insurance will be primary and noncontributory with any Page 5 of 18 Page 214 of 263 Back to Agenda liability insurance carried by Landlord. Landlord may also require Tenant to obtain and maintain at Tenant's sole cost business income coverage for at least six (6) months, business auto liability coverage, and, if applicable to Tenant's Permitted Use, liquor liability insurance and/or warehouseman's coverage b. Tenant's Property Insurance. During the Term, Tenant shall pay for and maintain special form clauses of loss coverage property insurance (with coverage for earthquake if required by Landlord's lender and, if the Premises are situated in a flood plain, flood damage) for all of Tenant's personal property, fixtures and equipment, Tenant's Work, and Alterations, in the amount of their full replacement value, with a deductible of not more than $10,000. c. Miscellaneous. Tenant's insurance required under this Section shall be with companies rated A-/VII or better in Best's Insurance Guide, and which are admitted in the State of Washington. No insurance policy shall be cancelled or reduced in coverage and each such policy shall provide that it is not subject to cancellation or a reduction in coverage except .after 30 days prior written notice to Landlord. Tenant shall deliver to Landlord, prior to Tenant's first taking possession of or occupying the Premises, and from time to time thereafter, copies of the insurance policies or evidence of insurance and copies of endorsements required by this Section. In no event shall the limits of such policies be considered as limiting the liability of Tenant under this Lease. If Tenant fails to acquire or maintain any insurance or provide any policy or evidence of insurance required by this Section, and such failure continues for three (3) days after notice from Landlord, Landlord may, but shall not be required to, obtain such insurance for Landlord's benefit and Tenant shall reimburse Landlord for the costs of such insurance upon demand. Such amounts shall be Additional Rent payable by Tenant hereunder and in the event of non-payment thereof, Landlord shall have the same rights and remedies with respect to such non-payment as it has with respect to any other non-payment of Rent hereunder. d.Landlord's Insurance. Landlord shall carry special form clauses of loss coverage property insurance of the Building shell and core in the amount of their full replacement value, liability insurance with respect to the Common Areas, and such other insurance of such types and amounts as Landlord, in its discretion, shall deem reasonably appropriate. The cost of any such insurance shall be included in Operating Costs, and if such insurance is provided by a "blanket policy" insuring other parties or locations in addition to the Building, then only the portion of the premiums allocable to the Building and Property shall be included in Operating Costs. e. Waiver of Subrogation. Notwithstanding any other provision of this Lease to the contrary, Landlord and Tenant hereby release each other and any other tenant, their agents or employees, from responsibility for, and waive their entire claim of recovery for any loss or damage arising from any cause covered by insurance required to be carried or otherwise carried by each of them. Each party shall provide notice to the insurance carrier or carriers of this mutual waiver of subrogation, and shall cause its respective insurance carriers to waive all rights of subrogation against the other. This waiver shall not apply to the extent of the deductible amounts to any such policies or to the extent of liabilities exceeding the limits of such policies. Page 6 of 18 Page 215 of 263 Back to Agenda XI. UTILITIES AND SERVICES. Landlord shall provide the following services for the Premises (7) days per week, (24) hours per day, the cost of which shall be included in the Operating Costs to the extent not separately metered to and exclusively serving the Premises (with the costs of such separately metered services to be directly billed to and paid by Tenant): water; electricity; sewer; trash and/or recycling removal; and HVAC. Notwithstanding the foregoing, if Tenant's use of the Premises incurs utility service charges which are above those usual and customary for the Permitted Use, Landlord reserves the right to require Tenant to pay a reasonable additional charge for such usage. Tenant shall furnish all other utilities (including, but not limited to, telephone, internet, and cable service if available) and other services which Tenant requires with respect to the Premises, and shall pay, at Tenant's sole expense, the cost of all utilities separately metered to the Premises, and of all other utilities and other services which Tenant requires with respect to the Premises, except those to be provided by Landlord and included in Operating Expenses as described above. Landlord shall not be liable for any loss, injury or damage to person or property caused by or resulting from any variation, interruption, or failure of utilities due to any cause whatsoever, and Rent shall not abate as a result thereof. XII. LEASEHOLD IMPROVEMENTS. The Tenant agrees that no leasehold improvements, alterations or changes of any nature, (except for those listed on any attached addenda) shall be made to the leasehold premises or the exterior of the building without first obtaining the consent of the Landlord in writing, which consent shall not be unreasonably withheld, and thereafter, any and all leasehold improvements made to the Premises which become affixed or attached to the leasehold Premises shall remain the property of the Landlord at the expiration or termination of this Lease Agreement. Furthermore, any leasehold improvements shall be made only in accordance with applicable federal, state or local codes, ordinances or regulations, having due regard for the type of construction of the building housing the subject leasehold Premises. If the Tenant makes any improvements to the Premises the Tenant shall be responsible for payment, except the following Nothing in the Lease shall be construed to authorize the Tenant or any other person acting for the Tenant to encumber the rents of the Premises or the interest of the Tenant in the Premises or any person under and through whom the Tenant has acquired its interest in the Premises with a mechanic's lien or any other type of encumbrance. Under no circumstance shall the Tenant be construed to be the agent, employee or representative of Landlord. In the event a lien is placed against the Premises, through actions of the Tenant, Tenant will promptly pay the same or bond against the same and take steps immediately to have such lien removed. If the Tenant fails to have the Lien removed, the Landlord shall take steps to remove the lien and the Tenant shall pay Landlord for all expenses related to the Lien and removal thereof and shall be in default of this Lease. Leasehold improvements shall include (i) any of Tenant's Work approved by Landlord; (ii) Tenant's Signage (as further provided in Section []), or (iii) the installation of shelves, movable partitions, Tenant's equipment and trade fixtures that may be installed and removed without damaging existing improvements or the structural integrity of the Premises, the Building, or the Property. Tenant shall perform all work at Tenant's expense and in compliance with all applicable laws and shall complete all Alterations in accordance with plans and specifications approved by Landlord, using contractors approved by Landlord, and in a manner so as not to unreasonably interfere with other tenants. Tenant shall pay when due, or furnish a bond for payment of (as set forth in Section 20), all claims for labor or materials furnished to or for Tenant at, or for use in, the Premises, which claims are or Page 7 of 18 Page 216 of 263 Back to Agenda may be secured by any mechanics' or materialmens' liens against the Premises or the Property or any interest therein. XIII. Common Areas. a. Definition. The term "Common Areas" means all areas, facilities and building systems that are provided and designated from time to time by Landlord for the general non-exclusive use and convenience of Tenant and other tenants of the Property and which are not leased or held for the exclusive use of a particular tenant. To the extent that such areas and facilities exist within the Property, Common Areas include hallways, entryways, stairs, elevators, driveways, walkways, terraces, docks, loading areas, restrooms, trash facilities, parking areas and garages, roadways, pedestrian sidewalks, landscaped areas, security areas, lobby or mall areas, common HVAC systems, common electrical service, equipment and facilities, and common mechanical systems, equipment and facilities. Tenant shall comply with, and shall use commercially reasonable efforts to cause its employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees to comply with, reasonable rules and regulations concerning the use of the Common Areas adopted by Landlord from time to time, and shall not interfere with the use of Common Areas by others. Without advance notice to Tenant and without any liability to Tenant, Landlord may change the size, use, or nature of any Common Areas, erect improvements on the Common Areas or convert any portion of the Common Areas to the exclusive use of Landlord or selected tenants, so long as Tenant is not thereby deprived of the substantial benefit of the Premises. Landlord reserves the use of exterior walls and the roof of the Building and other improvements at the Property, and the right to install, maintain, use, repair and replace pipes, ducts, conduits, and wires leading through the Premises in areas which will not materially interfere with Tenant's use thereof. b. Use of the Common Areas. Tenant shall have the non-exclusive right, in common with such other tenants of the Property to whom Landlord has granted or may grant such rights, to use the Common Areas. c. Maintenance of the Common Areas. Landlord shall maintain the Common Areas in good order, condition and repair. This maintenance cost shall be includable in Operating Costs pursuant to Section IX. In performing such maintenance, Landlord shall use commercially reasonable efforts to minimize interference with Tenant's use and enjoyment of the Premises. XIV. LICENSES AND PERMITS. A copy of any and all local, state or federal permits acquired by the Tenant which are required for the use of the Premises shall be kept on site at all times and shall be readily accessible and produced to the Landlord and/or their agents or any local, state, or federal officials upon demand. XV. REPAIRS AND MAINTENANCE; SURRENDER. Tenant shall, at its sole cost and expense, maintain the entire Premises in good condition and promptly make all non-structural repairs and replacements necessary to keep the Premises safe and in good condition, including all HVAC components and other utilities and systems to the extent exclusively serving the Premises. Landlord shall maintain and repair the Building structure, foundation, subfloor, exterior walls, roof structure and surface, and HVAC components and other utilities and systems to the extent serving more than just the Premises, and the Common Areas. the costs of which shall be included as Operating Costs unless otherwise expressly excluded pursuant to Section 8(a). Tenant shall not damage any demising wall or disturb the structural integrity of the Premises, the Building, or the Property and shall promptly repair any damage or injury done to any such demising walls or structural elements caused by Tenant or its employees, officers, agents, servants, contractors, Page 8 of 18 Page 217 of 263 Back to Agenda customers, clients, visitors, guests, or other licensees or invitees. Notwithstanding anything in this Section to the contrary, Tenant shall not be responsible for any repairs to the Premises made necessary by the negligence or willful misconduct of Landlord or its employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees therein. If Tenant fails to perform Tenant's obligations under this Section, Landlord may at Landlord's option enter upon the Premises after 10 days' prior notice to Tenant and put the same in good order, condition and repair and the cost thereof, together with interest thereon at the Default Rate set forth in Section 4, shall be due and payable as Additional Rent to Landlord together with Tenant's next installment of Base Rent. Upon expiration or earlier termination of the Term, Tenant shall promptly and peacefully surrender the Premises to Landlord, together with all keys, in materially as good condition as when received by Tenant from Landlord or as thereafter improved (but subject to any obligations to remove any Tenant's Work and Alterations and/or restore the same as further provided in this Lease), reasonable wear and tear and insured casualty excepted. XVI. ACCESS AND RIGHT OF ENTRY. After 24 hours' notice from Landlord (except in cases of emergency, when no notice shall be required), Tenant shall permit Landlord and its agents, employees and contractors to enter the Premises at all reasonable times to make repairs, inspections, alterations or improvements, provided that Landlord shall use reasonable efforts to minimize interference with Tenant's use and enjoyment of the Premises. This Section shall not impose any repair or other obligation upon Landlord not expressly stated elsewhere in this Lease. After reasonable notice to Tenant, Landlord shall have the right to enter the Premises for the purpose of (a) showing the Premises to prospective purchasers or lenders at any time, and to prospective tenants within 180 days prior to the expiration or sooner termination of the Term; and (b) posting "for lease" signs within 180 days prior to the expiration or sooner termination of the Term. XVH. SIGNAGE. Tenant shall obtain Landlord's written consent as to size, location, materials, method of attachment, and appearance, before installing any signs upon the Premises. Tenant shall install and maintain any approved signage ("Signage") at Tenant's sole expense and in compliance with all applicable laws. Any Signage installed by Tenant shall be removed from the Premises, Building and Property at Tenant's expense upon the expiration or earlier termination of the Term. Tenant shall not damage or deface the Premises in installing or removing Signage and shall repair any injury or damage to the Premises caused by such installation or removal. XVH1. INSURANCE. In the event the Tenant shall fail to obtain insurance required hereunder and fails to maintain the same in force continuously during the term, Landlord may, but shall not be required to, obtain the same and charge the Tenant for same as additional rent. Furthermore, Tenant agrees not to keep upon the Premises any articles or goods which may be prohibited by the standard form of fire insurance policy, and in the event the insurance rates applicable to fire and extended coverage covering the Premises shall be increased by reason of any use of the Premises made by Tenant, then Tenant shall pay to Landlord, upon demand, such increase in insurance premium as shall be caused by said use or Tenant's proportionate share of any such increase. XIX. SUBLET/ASSIGNMENT. Tenant shall not assign, sublet, mortgage, encumber or otherwise transfer any interest in this Lease (collectively referred to as a "Transfer") or any part of the Premises, without first obtaining Landlord's written consent, which shall not be unreasonably withheld, conditioned, or delayed. No Transfer shall relieve Tenant of any liability under this Lease notwithstanding Landlord's consent to such Transfer. Consent to any Transfer shall not operate as a waiver of the necessity for Landlord's consent to any subsequent Transfer. In connection with each request for consent to a Transfer, Tenant shall pay the reasonable cost of processing the same, including attorneys' fees, upon demand of Landlord, up to a maximum of $1,250. Page 9 of 18 Page 218 of 263 Any transfer of this Lease by merger, consolidation, redemption or liquidation of Tenant, or any change in the ownership of, or power to vote, which singularly or collectively represents a majority of the beneficial interest in Tenant, shall constitute a Transfer under this Section. As a condition to Landlord's approval, if given, any potential assignee or sublessee otherwise approved by Landlord shall assume all obligations of Tenant under this Lease and shall be jointly and severally liable with Tenant and any guarantor for the payment of Rent and performance of all obligations of Tenant under this Lease. In connection with any Transfer, Tenant shall provide Landlord with copies of all assignments, subleases and assumption agreements and related documents. XX. LIENS. Tenant is not authorized to subject the Landlord's assets to any liens or claims of lien. Tenant shall keep the Property and Premises free from any liens created by or through Tenant. Tenant shall indemnify, defend, and hold Landlord and the Property and Premises harmless from liability for any such liens including, without limitation, liens arising from any of Tenant's Work or Alterations. If a lien is filed against the Premises by any person claiming by, through or under Tenant, Tenant shall have the right to contest the correctness or validity of the lien, provided, however, within 10 days after Landlord's demand, at Tenant's expense, Tenant shall either remove the lien, or shall procure and record a lien release bond issued by a surety satisfactory to Landlord in form and amount sufficient to satisfy statutory requirements for satisfaction and release of the subject lien(s) from the Premises and Property. Tenant shall indemnify landlord, the Premises, and the Property from and against all liabilities, costs and expenses, including attorneys' fees, which Landlord could reasonably incur as a result of such lien. XXI. DAMAGE OR CONDEMNATION. a. Damage and Repair. If the Premises or the portion of the Building or the Property necessary for Tenant's occupancy are partially damaged by fire or other insured casualty but not rendered untenantable, then Landlord shall diligently restore the Premises and the portion of the Property necessary for Tenant's occupancy to the extent required below and this lease shall not terminate. Tenant may, however, terminate the Lease if Landlord is unable to restore the Premises within six (6) months of the casualty event by giving 20 days' written notice of termination. The Premises or the portion of the Building or the Property necessary for Tenant's occupancy shall not be deemed untenantable if 25% or less of each of those areas are damaged. If insurance proceeds are not available or are not sufficient to pay the entire cost of restoring the Premises, or if Landlord's lender does not permit all or any part of the insurance proceeds to be applied toward restoration, then Landlord may elect to terminate this Lease and keep the insurance proceeds, by notifying Tenant within 60 days of the date of such casualty. If the Premises, the portion of the Building or the Property necessary for Tenant's occupancy, or 50% or more of the rentable area of the Property are entirely destroyed, or partially damaged and rendered untenantable, by fire or other casualty, Landlord may, at its option: (a) terminate this Lease as provided herein, or (b) restore the Premises and the portion of the Property necessary for Tenant's occupancy to their previous condition to the extent required below; provided, however, if such casualty event occurs during the last six (6) months of the Term (after considering any option to extend the term timely exercised by Tenant) then either Tenant or Landlord may elect to terminate the Lease. If, within 60 days after receipt by Landlord from Tenant of written notice that Tenant deems the Page 10 of 18 Page 219 of 263 Back to Agenda Premises or the portion of the Property necessary for Tenant's occupancy untenantable, Landlord fails to notify Tenant of its election to restore those areas, or if Landlord is unable to restore those areas within six (6 )months of the date of the casualty event, then Tenant may elect to terminate the Lease upon 20 days' notice to Landlord unless Landlord, within such 20 day period, notifies Tenant that it will in fact restore the Premises or actually completes such restoration work to the extent required below, as applicable. If Landlord restores the Premises or the Property under this Section, Landlord shall proceed with reasonable diligence to complete the work, and Base Rent shall be abated in the same proportion as the untenantable portion of the Premises bears to the whole Premises, provided that there shall be a Base Rent abatement only if the damage or destruction of the Premises or the Property did not result from, or was not contributed to directly or indirectly by the act, fault or neglect of Tenant, or Tenant's employees, officers, agents, servants, contractors, customers, clients, visitors, guests, or other licensees or invitees. No damages, compensation or claim shall be payable by Landlord for inconvenience, loss of business or annoyance directly, incidentally or consequentially arising from any repair or restoration of any portion of the Premises or the Property. Landlord shall have no obligation to carry insurance of any kind for the protection of Tenant; any Alterations or improvements paid for by Tenant; Signage; Tenant's furniture; or on any fixtures, equipment, improvements or appurtenances of Tenant under this Lease, and Landlord's restoration obligations hereunder shall not include any obligation to repair any damage thereto or replace the same. b. Condemnation. If the Premises, the portion of the Building or the Property necessary for Tenant's occupancy, or 50% or more of the rentable area of the Property are made untenantable by eminent domain, or conveyed under a threat of condemnation, this Lease shall terminate at the option of either Landlord or Tenant as of the earlier of the date title vests in the condemning authority or the condemning authority first has possession of the Premises or the portion of the Property taken by the condemning authority. All Rents and other payments shall be paid to that date. If the condemning authority takes a portion of the Premises or of the Building or the Property necessary for Tenant's occupancy that does not render them untenantable, then this Lease shall continue in full force and effect and Rent shall be equitably reduced based on the proportion by which the floor area of any structures is reduced. The reduction in Rent shall be effective on the earlier of the date the condemning authority first has possession of such portion or title vests in the condemning authority. The Premises or the portion of the Building or the Property necessary for Tenant's occupancy shall not be deemed untenantable if 25% or less of each of those areas are condemned. Landlord shall be entitled to the entire award from the condemning authority attributable to the value of the Premises or the Building or the Property and Tenant shall make no claim for the value of its leasehold. Tenant shall be permitted to make -a separate claim against the condemning authority for moving expenses, provided that in no event shall Tenant's claim reduce Landlord's award. XXII. DEFAULT AND POSSESSION. Each of the following events shall be an "Event of Default" by Tenant under this Lease: a. Failure To Pay. Failure by Tenant to pay any sum, including Rent, due under this Lease following five (5) days' notice from Landlord of the failure to pay. Page 11 of 18 Page 220 of 263 b. Vacation/Abandonment. Vacation by Tenant of the Premises (defined as an absence for at least 15 consecutive days without prior notice to Landlord), or abandonment by Tenant of the Premises (defined as an absence of five (5) days or more while Tenant is in breach of some other term of this Lease). Tenant's vacation or abandonment of the Premises shall not be subject to any notice or right to cure. c. Insolvency. Tenant's insolvency or bankruptcy (whether voluntary or involuntary); or appointment of a receiver, assignee or other liquidating officer for Tenant's business; provided, however, that in the event of any involuntary bankruptcy or other insolvency proceeding, the existence of such proceeding shall constitute an Event of Default only if such proceeding is not dismissed or vacated within 60 days after its institution or commencement. d. Levy or Execution. The taking of Tenant's interest in this lease or the Premises, or any part thereof, by execution or other process of law directed against Tenant, or attachment of Tenant's interest in this Lease by any creditor of Tenant, if such attachment is not discharged within 15 days after being levied. e. Other Non -Monetary Defaults. The breach by Tenant of any agreement, term or covenant of this Lease other than one requiring the payment of money and not otherwise enumerated in this Section or elsewhere in this Lease, which breach continues for a period of 30 days after notice by Landlord to Tenant of the breach, provided that, if the nature of such default is such that it cannot be cured within such 30 day period, no Event of Default shall occur so long as Tenant commences such cure within 30 days of notice by Landlord and diligently pursues such cure to completion, but in no event longer than 60 days from the date of Landlord's notice. f. Failure to Take Possession. Failure by Tenant to take possession of the Premises on the Commencement Date following five (5) days notice from the Landlord of Tenant's failure to take possession. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within 30 days notice to Landlord by Tenant provided that, if the nature of such default is such that it cannot be cured within such 30 day period, Landlord shall not be in default if Landlord commences such cure within 30 days of notice by Tenant and diligently pursues such cure to completion. If Landlord fails to cure any such default within the allotted time, Tenant's sole remedy shall be to seek actual money damages (but not consequential or punitive damages) for loss arising from Landlord's failure to discharge its obligations under this Lease. Nothing herein contained shall relieve Landlord from its duty to perform any of its obligations to the standard prescribed in this Lease. Any notice periods granted herein shall be deemed to run concurrently with and not in addition to any default notice periods required by law. XXHL REMEDIES. Landlord shall have the following remedies upon an Event of Default. Landlord's rights and remedies under this lease shall be cumulative and not exclusive. a. Termination of Lease. Landlord may terminate Tenant's interest and the Lease, but no act by Landlord other than notice of termination from Landlord to Tenant shall terminate this Lease. The Lease shall terminate on the date specified in the notice of termination. Upon termination of this Lease, Tenant will remain liable to Landlord for damages in an amount Page 12 of 18 Page 221 of 263 Back to Agenda equal to t and other sums that would have been owing by Tenant under this Lease for the balance of the Term, less the net proceeds, if any, of any reletting of the Premises by Landlord subsequent to the termination, after deducting all of Landlord's Reletting Expenses (as defined below). Landlord shall be entitled to either collect damages from Tenant monthly on the days on which rent or other amounts would have been payable under the Lease, or alternatively, Landlord may accelerate Tenant's obligations under the Lease and recover from Tenant: (i) unpaid rent which had been earned at the time of termination; (ii) the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of rent loss that Tenant proves could reasonably have been avoided; (iii) the amount by which the unpaid rent for the balance of the term of the Lease after the time of award exceeds the amount of rent loss that Tenant proves could reasonably be avoided (discounting such amount by the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus 1 %); and (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the Lease, or which In the ordinary course would be likely to result from the Event of Default, including without limitation Reletting Expenses described below. b. Re -Entry and Reletting. Landlord may continue this Lease in full force and effect, and without demand or notice, re-enter and take possession of the Premises or any part thereof, expel the Tenant from the Premises and anyone claiming through or under the Tenant, and remove the personal property of either. Landlord may relet the Premises, or any part of them, in Landlord's or Tenant's name for the account of Tenant, for such period of time and at such other terms and conditions as Landlord, in its discretion, may determine. Landlord may collect and receive the rents for the Premises. To the fullest extent pernutted by law, the proceeds of any reletting shall be applied: first, to pay Landlord all Reletting Expenses (defined below); second, to pay any indebtedness of Tenant to landlord other than rent; third, to the rent due and unpaid hereunder; and fourth, the residue, if any, shall be held by Landlord and applied in payment of other or future obligations of Tenant to Landlord as the same may become due and payable, and Tenant shall not be entitled to receive any portion of such revenue. Re-entry or taking possession of the Premises by Landlord under this Section shall not be construed as an election on Landlord's part to terminate this Lease, unless a notice of termination is given to Tenant Landlord reserves the right following any re-entry or reletting, or both, under this Section to exercise its right to terminate the Lease. Tenant will pay Landlord Rent and other sums which would be payable under this Lease if repossession had not occurred, less the net proceeds, if any, after reletting the Premises and after deducting Landlord's Reletting Expenses. "Reletting Expenses" is defined to include all expenses incurred by Landlord in connection with reletting the Premises, including without limitation, all repossession costs, brokerage commissions and costs for securing new tenants, attorneys' fees, remodeling and repair costs, costs for removing persons or property, costs for storing Tenant's property and equipment, and costs of tenant improvements and rent concessions granted by Landlord to any new Tenant, prorated over the life of the new lease. c. Waiver of Redemption Rights. Tenant, for itself, and on behalf of any and all persons claiming through or under Tenant, including creditors of all kinds, hereby waives and surrenders all rights and privileges which they may have under any present or future law, to redeem the Premises or to have a continuance of this Lease for the Term, or any extension thereof. Page 13 of 18 Page 222 of 263 d. Nonpayment of Additional Rent. All costs which Tenant is obligated to pay to landlord pursuant to this Lease shall in the event of nonpayment be treated as if they were payments of Rent, and Landlord shall have the same rights it has with respect to nonpayment of Rent. e. Failure to Remove Property. If Tenant fails to remove any of its property from the Premises at Landlord's request following an uncured Event of Default, Landlord may, at its option, remove and store the property at Tenant's expense and risk. If Tenant does not pay the storage cost within five (5) days of Landlord's request, Landlord may, at its option, have any or all of such property sold at public or private sale (and Landlord may become a purchaser at such sale), in such manner as Landlord deems proper, without notice to Tenant. Landlord shall apply the proceeds of such sale: (i) to the expense of such sale, including reasonable attorneys' fees actually incurred; (ii) to the payment of the costs or charges for storing such property; (iii) to the payment of any other sums of money which may then be or thereafter become due Landlord from Tenant under any of the terms hereof; and (iv) the balance, if any, to Tenant. Nothing in this Section shall limit Landlord's right to sell Tenant's personal property as permitted by law or to foreclose Landlord's lien for unpaid rent, if any. XXIV. INDEMNIFICATION. The Tenant hereby covenants and agrees to indemnify, defend and hold the Landlord harmless from any and all claims or liabilities which may arise from any cause whatsoever as a result of Tenant's use and occupancy of the Premises, and further shall indemnify the Landlord for any losses which the Landlord may suffer in connection with the Tenant's use and occupancy or care, custody and control of the Premises. The Tenant also hereby covenants and agrees to indemnify and hold harmless the Landlord from any and all claims or liabilities which may arise from any latent defects in the subject Premises that the Landlord is not aware of at the signing of the lease or at any time during the lease term. Except to the extent of claims arising out of Landlord's gross negligence or intentional acts of misconduct, Landlord shall not be liable for injury to Tenant's business or assets, or any loss of income therefrom or for damage to any property of Tenant or of its employees, officers, agents, servants, contractors, customers, clients, visitors, quests, or other licensees or invitees, or any other person in or about the Premises or the Property. This provision shall survive expiration or termination of this lease. XXV. BANKRUPTCY - INSOLVENCY. The Tenant agrees that in the event all or a substantial portion of the Tenant `s assets are placed in the hands of a receiver or a Trustee, and such status continues for a period of 30 days, or should the Tenant make an assignment for the benefit of creditors or be adjudicated bankrupt; or should the Tenant institute any proceedings under the bankruptcy act or any amendment thereto, then such Lease or interest in and to the leased Premises shall not become an asset in any such proceedings and, in such event, and in addition to any and all other remedies of the Landlord hereunder or by law provided, it shall be lawful for the Landlord to declare the term hereof ended and to re-enter the leased land and take possession thereof and all improvements thereon and to remove all persons therefrom and the Tenant shall have no further claim thereon. XXVI. SUBORDINATION AND ATTORNMENT. This Lease shall automatically be subordinate to any mortgage or deed of trust created by Landlord which is now existing or hereafter placed upon the Premises including any advances, interest, modifications, renewals, replacements or extensions {"Landlord's Mortgage"). Tenant shall attorn to the holder of any Landlord's Mortgage or any party acquiring the Premises at any sale or other proceeding under any Landlord's Mortgage provided the acquiring party assumes the obligations of Landlord under this Lease. Tenant shall promptly and in no event later than 15 days after request execute, acknowledge and deliver documents which the holder of any Landlord's Mortgage may reasonably require as further Page 14 of 18 Page 223 of 263 evidence of this subordination and attornment. Notwithstanding the foregoing, Tenant's obligations under this Section to subordinate in the future are conditioned on the holder of each Landlord's Mortgage and each party acquiring the Premises at any sale or other proceeding under any such Landlord's Mortgage not disturbing Tenant's occupancy and other rights under this Lease, so long as no uncured Event of Default by Tenant exists. XXVII. MISCELLANEOUS TERMS. I. Usage by Tenant: Tenant shall comply with all rules, regulations and laws of any governmental authority with respect to use and occupancy. Tenant shall not conduct or permit to be conducted upon the Premises any business or permit any act which is contrary to or in violation of any law, rules or regulations and requirements that may be imposed by any authority or any insurance company with which the Premises is insured, nor will the Tenant allow the Premises to be used in any way which will invalidate or be in conflict with any insurance policies applicable to the building. In no event shall explosives or extra hazardous materials be taken onto or retained on the Premises. Furthermore, Tenant shall not install or use any equipment that will cause undue interference with the peaceable and quiet enjoyment of the Premises by other tenants of the building. II. Condition of Premises/Inspection by Tenant: The Tenant has had the opportunity to inspect the Premises and acknowledges with its signature on this lease that the Premises are in good condition and comply in all respects with the requirements of this Lease. Furthermore, the Landlord makes no representation or warranty with respect to the condition of the Premises or its fitness or availability for any particular use, and the Landlord shall not be liable for any latent or patent defect therein. Furthermore, the Tenant represents that Tenant has inspected the Premises and is leasing and will take possession of the Premises with all current fixtures present in their "as is" condition as of the date hereof. III. Right of Entry: It is agreed and understood that the Landlord and its agents shall have the complete and unencumbered right of entry to the Premises at any time or times for purposes of inspecting or showing the Premises. XXVIII. ESTOPPEL CERTIFICATE. Tenant shall, from time to time, upon written request of landlord, execute, acknowledge and deliver to Landlord or its designee a written statement specifying the following, subject to any modifications necessary to make such statements true and complete: (i) the total rentable square footage of the Premises; (ii) the date the Term commenced and the date it expires; (iii) the amount of minimum monthly Rent and the date to which such Rent has been paid; (iv) that this Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way; (v) that this Lease represents the entire agreement between the parties; (vi) that all obligations under this Lease to be performed by either party have been satisfied; (vii) that there are no existing claims, defenses or offsets which the Tenant has against the enforcement of this Lease by Landlord; (viii) the amount of Rent, If any, that Tenant paid in advance; (ix) the amount of security that Tenant deposited with Landlord; (x) if Tenant has sublet all or a portion of the Premises or assigned its interest in the Lease and to whom; (xi) if Tenant has any option to extend the Term of the Lease or option to purchase the Premises; and (xii) such other factual matters concerning the Lease or the Premises as Landlord may reasonably request. Tenant acknowledges and agrees that any statement delivered pursuant to this Section may be relied upon by a prospective purchaser of Landlord's interest or assignee of any mortgage or new mortgagee of Landlord's interest in the Premises. If Tenant shall fail to respond within 10 days to Landlord's request for the statement required by this Section, Landlord may provide the statement and Tenant shall be deemed to have admitted the accuracy of the information provided by Landlord. Page 15 of 18 Page 224 of 263 Back to Agenda XXIX. HOLDOVER. If Tenant shall, without the written consent of landlord, remain in possession of the Premises and fail to return them to Landlord after the expiration or termination of this Lease, the tenancy shall be a holdover tenancy at sufferance, which may be terminated according to Washington law. During such tenancy, Tenant agrees to pay to Landlord 150% of the rate of rental last payable under this Lease, unless a different rate is agreed upon by Landlord. All other terms of the Lease shall remain in effect other than any options to extend the Term. Tenant acknowledges and agrees that this Section does not grant any right to Tenant to holdover, and that Tenant may also be liable to Landlord for any and all damages or expenses which Landlord may have to incur as a result of Tenant's holdover. XXX. NON -WAIVER. Landlord's waiver of any breach of any provision contained in this Lease shall not be deemed to be a waiver of the same provision for subsequent acts of Tenant. The. acceptance by Landlord of Rent or other amounts due by Tenant hereunder shall not be deemed to be a waiver of any previous breach by Tenant. XXXI. NOTICES. All notices under this Lease shall be in writing and effective (i) when delivered in person or via overnight courier to the other party, or (ii) three (3) days after being sent by registered or certified mail to the other party at the address set forth in Section I. The addresses for notices and payment of rent set forth in Section 1 may be modified by either party only by written notice delivered in conformance with this Section. XXXHI. GOVERNING LAW. This Lease shall be governed by the laws of the State of Washington. XXV. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord engage the services of an attorney to collect monies due or to bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by Landlord for the recovery of Rent or other payments, or possession of the Premises, the losing party shall pay the prevailing party a reasonable sum for attorneys' fees in such action, whether in mediation or arbitration, at trial, on appeal, or in any bankruptcy proceeding. XXVI. TRANSFER OF LANDLORD'S INTEREST. This Lease shall be assignable by Landlord without the consent of Tenant. In the event of any transfer or transfers of Landlord's interest in the Premises, other than a transfer for collateral purposes only, upon the assumption of this Lease by the transferee, Landlord shall be automatically relieved of obligations and liabilities accruing from and after the date of such transfer, including any liability for any retained security deposit or prepaid rent, for which the transferee shall be liable, and Tenant shall attorn to the transferee. 35. GENERAL. a. Heirs and Assigns. This Lease shall apply to and be binding upon Landlord and Tenant and their respective heirs, executors, administrators, successors and assigns. b. Entire Agreement. This Lease contains all of the covenants and agreements between Landlord and Tenant relating to the Premises. No prior or contemporaneous agreements or understandings pertaining to the Lease shall be valid or of any force or effect and the covenants and agreements of this Lease shall not be altered, modified or amended except in writing, signed by Landlord and Tenant. Page 16 of 18 Page 225 of 263 Back to Agenda c. Severability. Any provision of this Lease which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision of this Lease. d. Force Majeure. Time periods for either party's performance under any provisions of this Lease (excluding payment of Rent) shall be extended for periods of time during which the party's performance is prevented due to circumstances beyond such party's control, including without limitation, fires, floods, earthquakes, lockouts, strikes, embargoes, governmental regulations, acts of God, public enemy, war or other strife; provided in no event shall any of the foregoing events operate to extend the Term of this Lease. e. No Light, Air or View Easement. Tenant has not been granted an easement or other right for light, air or view to or from the Premises. Any diminution or shutting off of light, air or view by any structure which may be erected on or adjacent to the Building shall in no way affect this Lease or the obligations of Tenant hereunder or impose any liability on Landlord. f. Authority of Parties. Each party to this Lease represents and warrants to the other that the person executing this Lease on behalf of such party has the authority to enter into this Lease on behalf of such party, that the execution and delivery of this lease has been duly authorized, and that upon such execution and delivery, this Lease shall be binding upon and enforceable against such party. g. Time. "Day" as used herein means a calendar day and "business day" means any day on which commercial banks are generally open for business in the state where the Premises are situated. Any period of time which would otherwise end on a non -business day shall be extended to the next following business day. Time is of the essence of this Lease. h. Quiet Enjoyment. Provided Tenant pays Rent and performs all ofits obligations in this Lease, Tenant's possession of the Premises will not be, disturbed by Landlord or anyone claiming by, through or under Landlord. i. Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at the option of Landlord, terminate all or any existing subtenancies or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subtenancies. j. Counterparts. This contract may be signed by and returned by one or more counterparts. All signatures are binding on Tenant and Landlord. XXVII. AMENDMENT. No amendment of this Lease shall be effective unless reduced to writing and subscribed by the parties with all the formality of the original. XXVHI. BINDING EFFECT. This Lease and any amendments thereto shall be binding upon the Landlord and the Tenants and/or their respective successors, heirs, assigns, executors and administrators. // // Signature page to follow. H // Page 17 of 18 Page 226 of 263 Back to Agenda IN WITNESS WHEREOF, the parties hereto set their hands and seal this ,Tz, 202Z . zzmc:7:�_ Printed Name Landlord's Signature Tenant's Signature Tenant's Signature Printed Name Title Title Printed Name Title Printed Name Title ACKNOWLEDGMENT OF NOTARY PUBLIC STATE OF YUae k + tr n COUNTY OF iLl i-ba day of On this t4 m day of Oe.c-ernb-ef , 20u, before me appeared 4vi as LANDLORD of this Commercial Lease Agreement who proved to me through government issued photo identification to be the above -named person, in my presence executed foregoing instrument and acknowledged that they executed the same as their free act and deed. Notary. Public State of Washington c�tTS-I- KIM E LUND?UIST Notary Public License Number 17481 MY COMMISSION EXPIRES M Commission Expires: �� l 0 Zoo July 1.2026 Y p -� ACKNOWLEDGMENT OF NOTARY PUBLIC STATE OF , COUNTY OF On this day of 1 20 before me appeared as TENANT(S) of this Commercial Lease Agreement who proved to me through government issued photo identification to be the above -named person, in my presence executed foregoing instrument and acknowledged that they executed the same as their free act and deed. Notary Public My Commission Expires: Page 18 of 18 Page 227 of 263 FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT THIS FIRST AMENDMENT TOMMERCIAL LEASE AGREEMENT ("Agreement") is entered into and effective as of l- 1- 23 K , 2622-("Effective Date") by and between Hillstrom Holdings, LLC, a Washington limited liability company ("Landlord"), and the City of Port Orchard, a Washington municipal corporation ("Tenant"). Landlord and Tenant may be referred to herein individually as a "far ' and collectively as the "Parties". RECITALS A. Landlord and Tenant entered into the certain Commercial Lease Agreement, dated r2- 2%- Z Z , 2022 ("Lease") for lease the Premises commonly known as Suite 201 ("Premises") located at the property commonly known as the Greenwood Building, 600 Kitsap St. Port Orchard, WA 98366 and legally described in Exhibit A ("Pro a "). B. The Lease, for a 36-month term to begin on January 1, 2023, contains boilerplate language that does not match the intention of Landlord and Tenant with respect to the terms and conditions the Parties desire to enter into with respect to the Lease, and is missing a legal description and acknowledgments. C. Landlord and Tenant desire to ratify and amend the Lease upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, incorporating the foregoing Recitals herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Base Rent and Operating Costs. Notwithstanding any other provision to the contrary in the Lease, Landlord and Tenant agree that Tenant shall not be responsible for any Operating Costs, including, without limitation, real property tax assessments, Landlord's property insurance, storm water, ° water, sanitary sewer, garbage disposal, janitorial services restroom supplies, or maintenance, repairs or t► � �Y � g g p � j pp � � replacements of all or any portion of the Property or the Common Areas; provided, Tenant shall pay for its electricity costs for the Premises, which electricity costs are metered. Tenant shall pay for such electricity costs �n . _ 4 �cc-kert. Tz 2. Landlord Entry. Landlord acknowledges that Tenant intends to use the Premises for j purposes that may involve confidential information, including criminal investigations and confidential information of the City of Port Orchard. Landlord agrees to exercise its rights to enter the Premises subject to the right of Tenant to maintain security and confidentiality of information and records contained in the Premises, including the right to restrict access during sensitive meetings and the right to restrict access to portions of the Premises containing confidential or sensitive information or records. 3. Revision to Section XXIV. The Parties agree to delete the following portion of Section XXIV of the Lease: "The Tenant also hereby covenants and agrees to indemnify and hold harmless the Landlord from any and all claims or liabilities which may arise from any latent defects in the subject Premises that the Landlord is not aware of at the signing of the lease o-L at any time during the lease term." 4. Pam. Landlord agrees to provide het-(,4) off-street parking spaces to Tenant on an exclusive basis at no additional cost. First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 1 of 7 Page 228 of 263 5. Maintenance and Repairs. Landlord shall maintain at its sole cost in good repair and replace, as needed, the Property, including, without limitation, the HVAC systems (including regular filter replacements and regular maintenance of thermostats, ductwork, and diffusers), mechanical systems, electrical systems, interior and exterior lighting systems, plumbing, flooring, windows, signs, elevators (if applicable), interior and exterior walls, all structural components of the building (including the roof, foundation, and siding), restrooms, lobbies, stairways, sidewalks, parking lot (including snow removal, cleaning, and restriping as required), wheel stops, storm water drainage, exterior paint, interior paint in the Common Areas, landscaping and other components of the Property. Landlord shall further continuously satisfy all governmental requirements generally applicable to similar office buildings, including, without limitation, compliance with fire codes, building codes, energy codes, indoor air quality, and Americans with Disabilities Act barrier -free restrooms and access. 6. Withholding Rent Payments. In the event Landlord fails to promptly maintain, repair, or improve the Premises or the Property as set forth herein, Tenant shall have the right to withhold 50% of the Base Rent payments without late fees or default interest until such time as Landlord satisfies such maintenance, repair, or improvement obligations. 7. Compliance with Law. Landlord shall be responsible for complying with the Americans With Disabilities Act of 1990 (42 U.S.C. 12101-12213) and the Washington State Law Against Discrimination, Chapter 49.60 RCW, as well as regulations adopted thereunder, with respect to the Property and the Premises. 8. Prevailing Wage. Landlord agrees to pay the prevailing rate of wage to all workers, laborers, or mechanics employed in the performance of any part of this Lease when required by state law, and to comply with the provisions of Chapter 39.12 RCW, as amended, and the rules and regulations of the Department of Labor and Industries. The rules and regulations of the Department of Labor and Industries and the schedule of prevailing wage rates for the locality or localities where this Lease will be performed as determined by the Industrial Statistician of the Department of Labor and Industries, are by reference made a part of this Lease as though fully set forth herein. 9. Hazardous Substances. The term "Hazardous Substances" as used in this Agreement shall mean pollutants, contaminants, toxic wastes, or any other substances, the removal of which is required or the use of which is restricted, regulated, prohibited or penalized by any "Environmental Law." The term `Environmental Law" or `Environmental Laws" shall mean any federal, state or local law or ordinance relating to pollution or protection of the environment or public health. Landlord represents and warrants to Tenant that the Property does not contain asbestos or other Hazardous Substances of any kind, except, in the case of Hazardous Substances only and not asbestos, commercially reasonable quantities for construction purposes and cleaning agents and other substances normally used in the construction, operation and maintenance of office buildings and not prohibited by applicable law, all of which shall be stored, used and disposed of at Landlord's cost and without reimbursement from Tenant in accordance with all applicable local, state and federal laws. Landlord agrees not to use, dispose, store or generate any asbestos or Hazardous Substances in violation of any applicable law, rule or regulation in the Property. In the event such laws, rules or regulations require Landlord to remove or otherwise remedy the existence of any asbestos or Hazardous Substances discovered on the Property, Landlord agrees to promptly remove or remedy the violation. Landlord agrees to indemnify and hold Tenant harmless against any losses, damages, costs, liabilities and claims suffered by Tenant in connection with a breach by Landlord of its obligations set forth in this Section 9, except for such losses, damages, costs, liabilities and claims caused by Tenant's negligence or intentional misconduct. 10. ANTI -TERRORISM AND MONEY LAUNDERING REPRESENTATION AND INDEMNIFICATION. Landlord certifies that: (i) neither it nor its managers, members or controlling First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 2 of 7 Page 229 of 263 Back to Agenda owners are acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN"); (ii) neither it nor its managers, members, or controlling owners are engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its managers, members, or controlling owners are in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Landlord hereby agrees to defend, indemnify, and hold harmless Tenant from and against any and all claims, damages, losses, risks, liabilities and expenses (including reasonable attorneys' fees and costs) arising from or related to any breach of the foregoing certification. Should Landlord, during the term of this Lease, be designated an SDN, Tenant may, at its sole option, terminate this Lease. 11. General Provisions. 11.1 Binding Effect. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by each of the Parties and their permitted successors and assigns, and shall inure to the further benefit of, and be enforceable by, any Tenant or transferee permitted by the Lease. 11.2 Governing Law. This Agreement shall be interpreted, governed, and construed under the laws of the State of Washington. 11.3 Amendment. Any amendments or waivers to this Agreement must be in writing and signed by each of the Parties. 11.4 Dispute Costs. In the event of any conflict, claim or dispute between the Parties hereto and arising out of or relating to the subject matter of this Agreement, whether or not such conflict, claim or dispute has its basis in law or in equity, the prevailing Party shall be entitled to receive from the non -prevailing Party(ies) all reasonable costs and expenses of every sort whatsoever including, but not limited to, arbitrators fees, mediation fees, deposition costs, expert witness fees, accounting expenses relating thereto, and actual attorneys fees incurred or expended whether or not arbitration or court proceedings are initiated, and including all such costs or expenses incurred or expended in arbitration, in trial, on appeal or in any bankruptcy or receivership proceeding. 11.5 Broker. Each Party represents that it has worked with no broker with respect to the Lease or this Agreement. Tenant and Landlord (each an "indemnitor") agree to indemnify and hold harmless the other Parties hereto, and their respective affiliates, successors and assigns, from and against claims, actions, judgments, liabilities, payments, losses, damages and expenses, including reasonable attorney's fees and court costs, suffered or incurred by reason of the indemnitor's breach of its respective representation in this Section. 11.6 Legal Representation. Each Party acknowledges that it has been represented, or has had an opportunity to obtain the representation of counsel with respect to this Agreement. Each Party represents to the others that it has read and understood the terms hereof and the consequences of executing the Lease and this Agreement. The Parties agree that the provisions of this Agreement shall not be construed against the Party who drafted the same. First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 3 of 7 Page 230 of 263 Back to Agenda 11.7 Authority. Each person signing this Agreement on behalf of a Party represents and warrants that he or she is authorized to execute and deliver this Agreement on behalf of such Party, and that upon such person's execution hereof, this Agreement shall become binding upon such Party. 11.8 Defined Terms. Terms not otherwise defined herein shall have the meanings set forth in the Lease. 11.9 Severability. If any provision of this Agreement or the application thereof to any person or circumstances shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. 11.10 Full Force and Effect. Except as specifically amended herein, all of the terms, provisions, covenants and conditions of the Lease shall remain unmodified and in full force and effect. This Agreement shall supersede all prior agreements and understanding of the Parties hereto with respect to the subject matter hereof. In the event of any inconsistencies between any part of this Agreement and the Lease, the provisions of this Agreement shall prevail. This Agreement may not be amended or modified in any manner other than in a writing signed by the Parties hereto, or their respective successors or assigns. (Remainder of Page Intentionally Blank) First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 4 of 7 Page 231 of 263 Back to Agenda IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the Effective Date. (Landlord) Hillstrom Holdings, LLC, A Washington limited liability com any By: Zeith Hillstrom Its Manager LANDLORD ACKNOWLEDGMENT STATE OF WASHINGTON ) ss. COUNTY OF 646ap ) This record was acknowledged before me on 2- . 1 Li - ZO Z?.2022 (date), by Keith Hillstrom as Manager of Hillstrom Holdings, LLC. Notary Public State of Washington KIM E LUNDQUIST License Number 117481 MY COMMISSION EXPIRES Jul 1, 2026 U wl E GurXk4LA f- - Name: L:l M E- Notary Public in and for the State of Washington Residing at +Li4-iocte co"&gr-1 My appointment expires: J..1-2SA-Le First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 5 of 7 Page 232 of 263 Back to Agenda (Tenant) City of Port Orchard, A Washington municipal corporation Rob Putaansuu, Its Major Reviewed and approved: Charlotte Archer City Attorney TENANT ACKNOWLEDGMENT STATE OF WASHINGTON ss. COUNTY OF KITSAP This record was acknowledged before me on as Mayor of the City of Port Orchard. , 2022 (date), by Rob Putaansuu Name: Notary Public in and for the State of Washington Residing at My appointment expires: First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 6 of 7 Page 233 of 263 Exhibit A Legal Description LOTS 1, 4, AND 5, BLOCK 7, S.M. STEVENS' TOWN PLAT OF SIDNEY; ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 1 OF PLATS AT PAGE 1, RECORDS OF KITSAP COUNTY, WASHINGTON; TOGETHER WITH THAT PORTION OF UNNAMED ALLEY AS CONVEYED BY THE CITY OF PORT ORCHARD UNDER KITSAP COUNTY RECORDING NO.3221209; TOGETHER WITH THAT PORTION OF UNNAMED ALLEY AS CONVEYED BY HAZELLE M. SIMMONS UNDER KITSAP COUNY RECORDING NO. 3221211. First Amendment to City of Port Orchard Lease — 600 Kitsap St Lease Page 7 of 7 Page 234 of 263 Agenda Item No. City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Business Item 7H Agenda Staff Report Subject: Approval of Amendment No. 1 to Contract No. 015-20 with Inslee, Best, Doezie & Ryder, P.S. for City Attorney Services Back to Agenda Meeting Date: December 20, 2022 Prepared by: Brandy Wallace, MMC City Clerk Atty Routing No.: Atty Review Date N/A N/A Summary: The City and law firm Inslee Best Doezie & Ryder, PS, entered into an Agreement for legal services, Contract No. C015-20, in December 2019, with a contract expiration date of December 31, 2022, with automatic one-year renewals. The City desires to continue to utilize the services of the firm for legal services. In early 2020, attorney Jennifer Robertson, formerly of Northwest Urban Law, PLLC, joined the firm and prior to joining, maintained a separate Agreement with the City, Contract No. 052-18, dated June 26, 2018, for legal services. Since joining the firm, Attorney Robertson has continued to provide legal services to the City as a team member, pursuant to the terms of Contract No. 052-18. The City and firm have negotiated the Amendment to incorporate Attorney Robertson as a member of the Firm subject to the terms of the Underlying Agreement, thereby terminating Contract No. 052-18, and as the firm's rates for service have remained unchanged since December 2019, the City and Firm have negotiated updated rates for service for the extended term Recommendation: Staff recommends approving amendment No. 1 with Inslee, Best, Doezie & Ryder, P.S for city attorney services. Relationship to Comprehensive Plan: N/A Motion for consideration: I move to approve amendment No. 1 with Inslee, Best, Doezie & Ryder, P.S for city attorney services. Fiscal Impact: Consistent with the City's 2023-2024 biennial budget. Alternatives: N/A Attachments: Contract No. 015-20 and Amendment No. 1. Page 235 of 263 AMENDMENT NO. 1 to CITY OF PORT ORCHARD AGREEMENT FOR LEGAL SERVICES This Amendment No. 1 ("Amendment") to Contract No. CO 15-20 for City Attorney/Legal Services is entered into between the City of Port Orchard ("City") and the law firm Inslee Best Doezie & Ryder, PS ("Firm"). The City and Firm are each a "Party" and collectively the "Parties" to this Amendment. RECITALS: WHEREAS, the City and Firm entered into an Agreement for Legal Services, Contract No. CO 15-20, in December 2019 (the "Underlying Agreement"), with a contract expiration date of December 31, 2022, with automatic one-year renewals; and WHEREAS, the City desires to continue to utilize the services of the Firm for legal services; and WHEREAS, in early 2020, attorney Jennifer Robertson, formerly of Northwest Urban Law, PLLC, joined the Firm and prior to joining the Firm, Attorney Robertson maintained a separate Agreement with the City, Contract No. 052-18, dated June 26, 2018, for legal services; and WHEREAS, since joining the Firm, Attorney Robertson has continued to provide legal services to the City as a team member, pursuant to the terms of Contract No. 052-18; and WHEREAS, the City and Firm have negotiated the Amendment to incorporate Attorney Robertson as a member of the Firm subject to the terms of the Underlying Agreement, thereby terminating Contract No. 052-18; and WHEREAS, as the Firm's rates for service have remained unchanged since December 2019, the City and Firm have negotiated updated rates for service for the extended term; and NOW, THEREFORE, in consideration of the mutual benefits accruing, it is agreed by and between the parties thereto as follows: 1. Section 7, Term, of the Underlying Agreement is hereby amended to read as follows: This Agreement shall be in effect from January 1, 2020, through December 31, 2024, with automatic annual one-year renewals. Renewal beyond December 31, 2026 will require City Council reauthorization. The Firm may submit updated rates for each renewal year beginning on January 1, 2024, provided the rate increase shall not exceed the change in the consumer price index (CPI-U) for the Seattle -Tacoma -Bellevue. At any time during the term of this Agreement, either party may terminate this Agreement upon sixty (60) days written notice. 2. Section 5, Fees and Costs, of the Underlying Agreement is hereby amended to read as follows: Page 236 of 263 The legal services shall be billed at the hourly rates set forth on Exhibit A. The City shall reimburse the Firm for all out-of-pocket expenses incurred on the City's behalf, including but not limited to court fees, deposition costs, special mailing or courier, photocopying, long distance telephone, facsimile, travel expenses, bridge tolls, and computerized legal research outside of the Firm's base plan. The City will not reimburse for ferry fares. The Firm will not advance funds to pay third party costs (e.g., expert witness fees), and invoices for those costs will be forwarded to the City for payment. The Firm will not charge the City for travel time or mileage costs incurred for three (3) trips, per month, to and from City Hall, provided Attorney Robertson shall bill for travel time or mileage for trips to and from City Hall. Travel time and mileage costs for additional trips and/or trips to locations other than City Hall will be reimbursed at the hourly rates for the attorneys. 3. The provisions of this Amendment are declared to be severable. If any provision of this Amendment is, for any reason, held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. 4. In all other respects, the Underlying Agreement between the parties shall remain in full force and effect, amended as set forth herein, but only as set forth herein. IN WITNESS WHEREOF, the parties have executed this Amendment No. I on the day and year set forth below ("Effective Date"). Dated this 20th day of December 2022. CITY OF PORT ORCHARD INSLEE BEST DOEZIE & RYDER, PS Robert Putaansuu, Mayor Charlotte Archer, Shareholder ATTEST Brandy Wallace, MMC, City Clerk Page 237 of 263 Back to Agenda Exhibit A INSLEE, BEST, DOEZIE & RYDER, PS 2023 Attorney Billing Rates for Port Orchard* ATTORNEYS MUNICIPAL HOURLY RATES** Charlotte Archer $ 250 / $275 Curtis Chambers $ 250 / $275 Jennifer Robertson $ 275 Other municipal group partners (if added) $ 325 Municipal associates*** $ 230 Other firm partners 10% less than regular firm rates, rounded to next lowest $5 increment, adjusted annually Fees charged to other parties (i.e., developers, franchisees, etc.) Regular firm rates, adjusted annually The City will be charged at the $250 per our rate for the first forty (40) hours of work per month for work performed by Charlotte Archer and Curtis Chambers. Otherwise, the above rates will apply. *This Revised Exhibit A and the attorney rates set forth herein are subject to change on January 1, 2024, based on the mutual consent of the City and Firm. **Attorney rates for legal review of land use applications and permits that are reimbursed by developers to the City shall be at the attorneys' rate identified in Ex. B entitled "Inslee Best 2023 Attorney Billing Rates - Exhibit B Agreement for Legal Services". The attorney billing rates set forth in Ex. B may be revised annually by the mutual consent of the City and Firm. ***If a Firm Associate becomes a Partner in 2022 or 2023, then a Municipal Group Partner rate of $275 shall apply. Page 238 of 263 Back to Agenda Exhibit B INSLEE, BEST, DOME & RYDER, PS 2023 Regular Attorney Billing Rates ATTORNEY 2022 BILLING RATE Archer, Charlotte A. $370 Bersin, Richard A. $480 Brossard, Kay L. $470 Chambers, Curtis J. $370 Danysh, AnnaLisa C. $350 Findley, Dan G. $550 Frimodt, Eric C. I $435 Henry, J. Todd $505 Jayawardhan, Shweta $280 Johnson, Anneliese E. $430 Larson, Rosemary A. $440 Lawyer, David J. $560 Leen, Mark S. $455 Linton, William A. $425 Ornstil, Phillip S. $385 Peterson, Kathryn Felice $425 Pirnke, Christopher W. $370 Reitan, Dawn F. $450 Robertson, Jennifer S. $450 Roth, Tyler J. $300 Shin, Dan N. $435 Ursich, Gregory L. $500 Weber, Katherine F. $460 Wiese, Brett N. $570 Wong, Juliana U. $425 Law Clerks $265 Corporate Paralegal $315 Estate Planning/Probate Paralegal $315 Estate Planning Drafting Paralegal $255 Family Law Paralegal $250 Trademark Paralegal $285 Page 239 of 263 Back to Agenda CITY OF PORTORCHARD PERSONAL SERVICES AGREEMENT FOR LEGAL SERVICES I. PARTIES This Agreement is made as of this 12th day of December 2019 between the City of Port Orchard ("City") and Inslee, Best, Doezie & Ryder, P.S. ("Firm"). CITY OF PORT ORCHARD, WASHINGTON (hereinafter the "CITY") 216 Prospect Street Port Orchard, Washington 98366 Contact: Mayor Robert Putaansuu Phone: 360.876.4407 Fax: 360.895.9029 And Inslee, Best, Doezie & Ryder, P.S., a corporation, organized under the laws of the State of Washington, doing business at: Inslee, Best, Doezie & Ryder, P.S. (hereinafter the "FIRM") 10900 NE 4ch Street Skyline Tower, Suite 1500 Bellevue, WA 98004 Contact: Charlotte A. Archer Phone: 425.450.4209 Fax: 425.635.7720 II. SERVICES PROVIDED The Firm shall perform legal services as provided in this Agreement under the supervision and direction of the Mayor or designee. Charlotte A. Archer will serve as the City Attorney and will direct the services of the Firm consistent with this Agreement. The Firm will not substitute other attorneys in providing services under this agreement without the permission of the City. III. QUALITY OF SERVICES The Firm shall perform all legal services in a capable and efficient manner, and in accordance with the professional standards of the Washington State Bar Association. IV. DESCRIPTION AND DELIVERY OF SERVICES At the request or with the concurrence of the Mayor or designee, the Firm shall perform civil legal services for the City, including but not limited to the following: (1) Review or draft City ordinances, contracts, resolutions, interlocal agreements and other legal documents; -I- Page 240 of 263 Back to Agenda (2) Represent the City in lawsuits and contested administrative proceedings commenced by or against the City; (3) Consult with and advise the Mayor, City Council members, City staff members and City consultants regarding legal matters relating to their respective duties for the City; (4) Attend City Council meetings; and (5) Perform such other duties and services as are necessary and appropriate in order to provide the City with legal representation. (6) Office hours on the Tuesday of each City Council Meeting (2"d and 4th Tuesdays of the month), as needed. The City will provide workspace at City Hall for office hours. When requesting legal services, the City shall state the services and the response date. The Firm shall confirm receipt as soon as possible, with a goal of acknowledging the request for legal services within one (1) business day of receiving the request. The confirmation shall identify the assigned attorney, an estimate of the response date, and the mutually agreed upon deliverable(s). The City may request the City Attorney to be available by cell phone, at times and in a manner agreed upon by the Mayor and the City Attorney. The parties acknowledge the Firm is subject to and bound by the Washington State Court Rules: Rules of Professional Conduct (RPC"), including but not limited to RPC 1.7 Conflict of Interest: Current Clients. The Firm shall follow said RPCs, including but not limited to, client representation involving a concurrent conflict of interest as defined in RPC 1.7(a). V. FEES AND COSTS The legal services shall be billed at the hourly rates set forth on Exhibit A. The City shall reimburse the Firm for all out-of-pocket expenses incurred on the City's behalf, including but not limited to court fees, deposition costs, special mailing or courier, photocopying, long distance telephone, facsimile, travel expenses, bridge tolls, and computerized legal research outside of the Firm's base plan. The City will not reimburse for ferry fares. The Firm will not advance funds to pay third party costs (e.g., expert witness fees), and invoices for those costs will be forwarded to the City for payment. The Firm will not charge the City for travel time or mileage costs incurred for three (3) trips, per month, to and from City Hall. Travel time and mileage costs for additional trips and/or trips to locations other than City Hall will be reimbursed at the hourly rates for the attorneys. VI. PAYMENT TERMS; TIME RECORDS The Firm will bill the City monthly for services and out-of-pocket expenses. The monthly invoice will summarize the date and extent of legal services performed and the charge for such services and will itemize the expenses. Fees and costs are due in full from the City upon billing by the Firm. A service charge shall accrue at the rate of twelve percent (12%) per annum, but -2- Page 241 of 263 Back to Agenda shall only be added to any balance remaining unpaid sixty (60) days after the invoice date. VII. TERM This Agreement shall be in effect from January 1, 2020 through December 31, 2022, with automatic annual one-year renewals. Renewal beyond six (6) years will require City Council reauthorization. At any time during the term of this Agreement, either party may terminate this Agreement upon sixty (60) days written notice. VIII. INSURANCE The Firm shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Firm, its agents, representatives, or employees. No Limitation The Firm's maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the Firm to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. Minimum Scope of Insurance The Firm shall obtain insurance of the types and coverage description below: Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be as least as broad as Insurance Services Office (ISO) form CA 00 01. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. Professional Liability insurance appropriate to the Firm's profession. Minimum Amounts of Insurance The Firm shall maintain the following insurance limits: Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Professional Liability insurance shall be written with limits no less than $4,000,000 per claims and $4,000,000 policy aggregate limit. Other Insurance Provision -3- Page 242 of 263 Back to Agenda The Firm's Automobile Liability insurance policies are to contain, or be endorsed, to contain that they shall be primary insurance as respect the City. Any insurance, self-insurance, or self -insured pool coverage maintained by the City shall be excess of the Firm's insurance and shall not contribute with it. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. Verification of Coverage The Firm shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Firm before commencement of the work. Notice of Cancellation The Firm shall provide the City Entity with written notice of any policy cancellation within two business days of their receipt of such notice. IX. INDEMNIFICATION/HOLD HARMLESS The Firm shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the acts, errors or omissions of the Firm in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Should a court of competition jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Firm and the City, its officers, officials, employees, and volunteers, the Firm's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Firm's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Firm's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. X. ASSIGNING OR SUBCONTRACTING The Firm shall not assign, transfer, subcontract or encumber any rights, duties, or interests accruing from this Agreement without the express prior written consent of the City, which consent may be withheld in the sole discretion of the City. XI. DISCRIMINATION AND COMPLIANCE WITH LAWS 1. The Firm agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, -4- Page 243 of 263 Back to Agenda color, national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. 2. Even though the Firm is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. The Firm agrees to comply with all federal, state and municipal laws, rules and regulations that are now effective or become applicable within the term(s) of this Agreement to the Firm's business, equipment and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. The Firm shall obtain a City of Port Orchard business license. 4. Violation of this Paragraph XI shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. XII. RELATIONSHIP OF PARTIES The parties intend that an independent contractor -client relationship will be created by this Agreement. As the Firm is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub -Firm of the Firm shall be or shall be deemed to be the employee, agent, representative or sub -Firm of the City. In the performance of the work, the Firm is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained under this Agreement. None of the benefits provided by the City to its employees, including but not limited to compensation, insurance, and unemployment insurance, are available from the City to the employees, agents, representatives or sub -Firms of the Firm. The Firm will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives and sub -Firms during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the Firm performs hereunder. XIII. BOOK AND RECORDS The Firm agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Services and maintain such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review, or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement. -5- Page 244 of 263 Back to Agenda Records preservation. The Firm understands that this Agreement is with a government agency and thus all records created or used in the course of the Finn's work for the City are considered "public records" and may be subject to disclosure under the Public Records Act, Chapter 42.56 RCW ("the Act"). Firm agrees to safeguard and preserve records in accordance with the Act. If the City receives a public records request and asks the Firm to search its files for responsive records, the Firm agrees to make a prompt and thorough search through his files for responsive records and to promptly turn over any responsive records to the City's public records officer. XV. NOTICE Any notices required to be given by the City to the Firm or by the Firm to the City shall be in writing and delivered to the parties at the following addresses: Robert Putaansuu Mayor 216 Prospect Street Port Orchard, WA 98366 Phone: 360.876.4407 Fax: 360.895.9029 Inslee, Best, Doezie & Ryder, P.S. Charlotte A. Archer 10900 NE 41" Street Skyline Tower, Suite 1500 Bellevue, WA 98004 Phone: 425.450.4209 Fax: 425.635.7720 XVI. RESOLUTION OF DISPUTES AND GOVERNING LAW 1. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. 2. If any dispute arises between the City and the Firm under any of the provisions of this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the Firm does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. 3. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorneys' fees from the other party. XVII. GENERAL PROVISIONS 1. Non -waiver of Breach. The failure of either party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. 10 Page 245 of 263 Back to Agenda 2. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Firm. 3. Severability. The provisions of this Agreement are declared to be severable. If any provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. 4. Entire Agreement. The written provisions of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement and the Exhibits attached hereto, which may or may not have been dated prior to the execution of this Agreement. All of the above documents are hereby made a part of this Agreement and form the Agreement document as fully as if the same were set forth herein. Should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, then this Agreement shall prevail. CITY OF PORT ORCHARD By DJ:�,� Robert Putaansuu, Mavor ATTE By: Brandy Rinearson, City Clerk e�1S« I I Is I 17 vpORT {}�'�rr,, .C- `SEAL'- F _ =ik /:eolltl�Ei1tiNVI INSLEE, BEST, DOEZIE & RYDER, P.S. ry - B Charlotte A. Archer. Attorney By 11 U-,V &4B Dawn Reitan, Shareholder —/— Page 246 of 263 Back to Agenda Exhibit A INSLEE, BEST, DOEZIE & RYDER, P.S. 2019 through 2021 Attorney Billing Rates* Municipal Attorneys Hourly Rates** Charlotte Archer $240 / $265 Curtis Chambers $240 / $265 Rosemary Larson, Dawn Reitan, and $325 Eric Frimodt Paralegals and law clerks Regular Firm rates or special municipal rates if applicable, adjusted annually. These rates shall not exceed the lowest Municipal Group Associate rate. Other Firm partners (if approved 10% Less than regular Firm in advance by Mayor) rates, rounded to next lowest $5 increment, adjusted annually. * The City will be charged at the $240 per hour rate for the first forty (40) hours of work per month for work performed by Charlotte Archer and Curtis Chambers. Otherwise, the above rates will apply. *The Firm's Attorney Billing Rates are subject to change on January 1, 2022, based on the mutual consent of the Mayor and Firm. *The Firm will provide updated rate sheets annually for paralegals and law clerks as well as for all professionals not specifically listed in Exhibit A. -8- Page 247 of 263 Back to Agenda �Ila nW . �n 4INYI T N� City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Business Item 71 Subject: Approval of Amendment No. 7 to Contract No. 054-18 with RH2 Engineering, Inc. for the Marina Pump Station Rebuild Project Meeting Date: December 20, 2022 Prepared by: Tony Lang Public Works Director Atty Routing No.: 366922-0009 — PW Atty Review Date: December 6, 2022 Summary: On December 15, December 22, and December 29, 2017, the City's Public Works Department published a Request for Qualifications for the Preparation of Ad Ready Design (100% PS&E), Permitting, and Full Construction Administration/Construction Management for the Marina Pump Station Rebuild Project (the "Project"). After a successful and complete procurement process, the City selected RH2 Engineering, Inc. as the most qualified engineering consultant for the Project. On July 24, 2018, Port Orchard City Council approved Contract No. C054-18 with RH2 Engineering, Inc. for the Marina Pump Station Rebuild Project — 30% Design. A Summary of Subsequent Amendments is as follows. Amendment No. 1 Amendment No. 2 Amendment No. 2A Amendment No. 3 Amendment No. 4 Amendment No. 5 Amendment No. 6 Time Only Extension Time Only Extension Time Only Extension 30% to 80% Design Additional Geotech Time Only Extension 100% Ad Ready Design/Bid Support $726,789 Additional Fee $14,004 Additional Fee $679,025 Additional Fee Further amendment of the Contract is now required to move the Project through the final phases. Amendment No. 7 will provide for additional final design and bid support as well as construction management services during construction. These associated costs are included within the estimated $17.6M Total Project Cost Amendment No. 7 will also increase the "Not to Exceed" amount by an additional $859,191.00, for a "Not to Exceed" total of $2,529,009.00, inclusive of all compensation paid after execution of the Contract and Amendments 1 through 6 but prior to this Amendment. Finally, Amendment No. 7 will extend the term of the Agreement to December 31, 2024. Recommendation: Staff recommends Council authorize the Mayor to execute Amendment No. 7 to Contract No. C054-18 with RH2 Engineering, Inc for the Marina Pump Station Rebuild Project to extend the duration of the contract to December 31, 2024, and increase the contract amount. Relationship to Comprehensive Plan: Chapter 7 — Utilities (Sewer). Motion for Consideration: I move to authorize the Mayor to execute Amendment No. 7 to Contract No. C0054-18 with RH2 Engineering, Inc. for the Marina Pump Station Rebuild Project. Page 248 of 263 Back to Agenda Staff Report 71 Page 2of2 Fiscal Impact: Funding is budgeted in the 2023 2024 Budget. (A combination of a Dept of Ecology loan, ARPA Grant funds, and Sewer Enterprise Funds) Alternatives: Do not approve and provide alternative guidance. Attachments: Authorization for Amendment No. 7 Amendment No. 7 w/ Exhibits A, B & C Page 249 of 263 Back to Agenda CITY OF PORT ORCHARD Authorization for Amendment No. 7 Date: December 20.2022 Project: Contract / Job # Marina Pump Station Rebuild - Phase 3-Final Design and Bid Support and Phase 4 Services during Construction C054-18 Contractor: RH2 Engineering, Inc 22722 29`h Drive SE, Suite 210 Bothell, WA 98021 THIS CHANGE ORDER AUTHORIZES THE FOLLOWING CHANGES TO THE AGREEMENT: Section 3 Terms. This agreement shall commence on July 24, 2018 ("Commencement Date") and shall terminate December 31, 2024, unless extended or terminated in writing as provided herein. Section 4 Time and Materials Not to Exceed. Compensation for these services shall not exceed $2,529,009 (inclusive of all amounts paid prior to the execution of Amendment No. 7 to this Agreement), without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit B and C. Contract History Amount Sales Tax Total Date Appvd by Original Contract $250,000.00 $0.00 $250,000.00 24-Jul-18 Council Amendment 1 $0.00 $0.00 $0.00 22-Jul-19 Mayor Amendment 2 $0.00 $0.00 $0.00 10-Dec-19 Mayor Amendment 2A $0.00 $0.00 $0.00 01-Apr-20 Mayor Amendment 3 $726,789.00 $0.00 $726,789.00 29-Jul-20 Council Amendment 4 $14,004.00 $0.00 $14,004.00 29-Dec-20 Mayor Amendment 5 $0.00 $0.00 $0.00 15-Jul-21 PW Director Amendment 6 $679,025.00 $0.00 $679,025.00 23-Feb-22 Council Amendment 7 1 $859,191.001 $0.00 $859,191.00 20-Dec-22 Council Total Contract 1 $2,529,009.001 $0.00 $2,529,009.00 1 have reviewed the Amendment information above and certifv that to the best of my knowledge descriptions and costs are true and accurate. Consultant Approval Signature Richard L. Ballard, Director Printed Name & Title Public Works Director Tony Lang Printed Name Change Orders that do not exceed 10%, with a maximum of Approved: $50,000, of either legally authorized budget limit or contract amount established by City Council can be approved by the Public Works Director. Change Orders that do not exceed 10%, with a maximum of $100,000, of either legally authorized budget limit or contract amount established by City Council are to be approved by the Mayor. Change Orders over $100,000 or exceed a total of 10% require Council Action. Mayor City Clerk Council Approval Date Pagdr-' df 263 Back to Agenda Amendment No. 7 to Contract No. 054-18 CITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT WITH RH2 ENGINEERING, INC. THIS AMENDMENT No. 7 ("Amendment") to Contract No. 054-18 is entered into between the City of Port Orchard, a Washington municipal corporation ("City" or "Port Orchard") and RH2 Engineering Inc., a corporation organized under the laws of the State of Washington, located and doing business at 22722 29th Drive SE Suite 210, Bothell WA 98021 ("Consultant"). City and Consultant are each a "Party" and together "Parties" to this Amendment. RECITALS: WHEREAS, following a successful procurement process for the Preparation of Ad Ready Design (100% PS&E), Permitting and Full Construction Administration/Construction Management for the Marina Pump Station Rebuild Project, on July 24, 2018, the City executed a Professional Services Agreement for 2018-2019 Marina Pump Station Rebuild Project, Contract No. C054-18, with the Consultant ("Underlying Agreement"); and WHEREAS, the Underlying Agreement was amended on July 22, 2019 (Amendment No. 1), December 10, 2019 (Amendment No. 2), and April 1, 2020 (Amendment No. 2A), each extending the duration of the Agreement; and WHEREAS, Amendment No. 3 to the Underlying Agreement was approved and executed on July 29, 2020, and Amendment No. 4 was approved and executed on December 29, 2020, increasing the contract by $726,789 and $14,004, respectively, bringing the Underlying Agreement, as amended, to a Not to Exceed amount of $990,793; and WHEREAS, Amendment No. 5 was approved and executed on July 15, 2021, extending the duration of the Agreement; and WHEREAS, on February 23, 2022, Amendment No. 6 was approved and executed, increasing the contract by $679,025 to a Not to Exceed amount of $1,669,818, including all work performed and compensated prior to Amendment No. 6; and WHEREAS, continuing efforts for final design, project management and services during construction are needed for the Marina Pump Station Rebuild Project, and the Parties have memorialized these additional tasks (within the scope of the initial project procurement) as set out in Exhibit A attached hereto; and WHEREAS, the Consultant and the City have conferred and agreed to extend the duration of the agreement to December 31, 2024, and to increase the "Time and Materials Not to Exceed" amount, Section 4 (Compensation), of the agreement as described herein and in Exhibits B and C attached hereto; and WHEREAS, the parties wish to memorialize their agreement and so modify the Underlying Agreement; Page 1 of 3 Amendment No. 7 to Agreement between City of Port Orchard and RH2 Engineering, Inc Contract No. C054-18 Page df 263 Back to Agenda NOW, THEREFORE, in consideration of the mutual benefits accruing, it is agreed by and between the parties thereto as follows: SEVENTH AMENDMENT TO AGREEMENT: 1. Amendment. a. The Scope of Work shall be amended to include the document attached hereto as Exhibit A and incorporated herein by this reference. b. Section 3, Terms, of the Agreement is hereby amended to read as follows: This agreement shall commence on July 24, 2018 ("Commencement Date") and shall terminate December 31, 2024, unless extended or terminated in writing as provided herein. c. Section 4, Compensation, of the Agreement is hereby amended to read as follows: TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $2,529,009 (inclusive of all amounts paid prior to the execution of Amendment No. 7 to this Agreement), without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit "B" and "C" 2. SeverabilitV. The provisions of this Amendment are declared to be severable. If any provision of this Amendment is, for any reason, held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. 3. Entire Agreement. The written provisions and terms of this Amendment shall supersede all prior verbal statements of any officer or other representative of the parties, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever this Amendment. The entire agreement between the Parties with respect to the subject matter hereunder is contained in the Underlying Agreement and exhibits thereto, any prior executed amendments and this Amendment. Should any language in any of the Exhibits to the Underlying Agreement or prior amendments conflict with any language contained in this Amendment, then this Amendment shall prevail. Except as modified by this Amendment, all other provisions of the Underlying Agreement and any amendments thereto not inconsistent with this Amendment shall remain in full force and effect. 4. Effective Date. This Amendment shall be effective as of December 20, 2022. DATED this 20th day of December 2022. Page 2 of 3 Amendment No. 7 to Agreement between City of Port Orchard and RH2 Engineering, Inc Contract No. C054-18 Page 8f 263 Back to Agenda CITY OF PORT ORCHARD, WASHINGTON Robert Putaansuu, Mayor ATTEST/AUTH ENTICATED: Brandy Wallace, CIVIC, City Clerk APPROVED AS TO FORM: Charlotte A. Archer, City Attorney CONSULTANT Signature Richard L. Ballard, Director Printed Name and Title Page 3 of 3 Amendment No. 7 to Agreement between City of Port Orchard and RH2 Engineering, Inc Contract No. C054-18 Page df 263 Back to Agenda EXHIBIT A Scope of Work Amendment No. 7 City of Port Orchard Marina Pump Station Rebuild Phase 3 — Final Design and Phase 4 — Services During Construction October 2022 Background The City of Port Orchard (City) has retained RH2 Engineering, Inc., (RH2) to design the retrofit of its aging Marina Pump Station. The existing sewer pump station was built in 1983 and is located near the intersection of State Route (SR) 166 and Orchard Avenue. The station is identified in the City's 2016 General Sewer Plan as needing additional capacity by buildout, at which time flows will be up to 8,435 gallons per minute, to accommodate the City's anticipated growth. Currently, the Marina Pump Station pumps all the City's wastewater to West Sound Utility District's joint -use Wastewater Treatment Facility. This Scope of Work includes additional work in Phase 3 to prepare the bid -ready design plans and specifications, as well as Phase 4—Services During Construction. RH2 will provide construction phase engineering services, including submittal reviews, on -site construction observation, and testing and startup assistance. RH2 will perform the work described up to the amounts included in the attached Fee Estimate. If additional effort is needed, that extra work will be mutually determined by the City and RH2. Task 1— Project Management Services (Additional Work) Objective: Perform additional project management services. Approach: 1.6 Provide additional project management and coordination with meetings associated with the increased project duration. RH2 Deliverables: • Unchanged from Amendment No. 6. Task 6 — Bid -Ready Design Plans, Specifications, and Cost Estimate (Additional Work) Objective: Perform additional work as requested by the City to develop bid -ready design plans for the sewer pump station improvements based on the decisions made during previous design phases. Approach: 6.11 Relocate the emergency generator northwest to a location identified by the City. Revise the generator enclosure to include space for trash dumpsters and remove storage for the emergency spill response trailer. 1 10/26/2022 10:04:56 AM Z:\PROJECTS\DATA\PO\118-116\CONTRACT\AMEND NO. 7\AMND_NO. 7_SOW_PO_MARINA PUMP STATION.DOCX Pag6'2 & 263 Back to Agenda City of Port Orchard Exhibit A Marina Pump Station Rebuild Scope of Work Phase 3 — Final Design and Phase 4 — Service During Construction Amendment No. 7 6.12 Revise the multi -use access trail north of the pump station to provide access to the existing fuel tanks by double -fuel tanker trucks. 6.13 Incorporate wet well improvements and adjust pump operations as recommended by RH2's subconsultant, Northwest Hydraulic Consultants. Incorporate a platform along the west side of the wet well for maintenance access and upsize the access hatch to allow for access to the bottom of the wet well past the maintenance platform. 6.14 Incorporate the City's antenna mast and associated antennas into the bid -ready design. 6.15 Assist the City with preparing figures for a Memorandum of Understanding (MOU) between the City and the Port of Bremerton (Port) regarding the change in structure and uses within the Port's Washington State Department of Natural Resources (DNR) lease area. Assist RH2's subconsultant, Ward C. Muller and Associates, with revisions to the City's lease agreement graphic with DNR. 6.16 Revise the landscaping, site, and architectural plans and specifications to accommodate for the adjacent projects and site access needs. Assumptions: • The City will act as the primary point of contact with DNR regarding the MOU and edits to the lease agreement will be negotiated and incorporated by the City's attorney. RH2 Deliverables: • Electronic PDFs of figures and participation in developing the MOU with the Port. • Collaboration with Ward C. Muller and Associates in the development of the DNR lease agreement graphic. • Revisions to architectural and site plans to accommodate the needs of City's operational staff and access requirements of the Port in electronic PDF. • Updates to plans and specifications to incorporate the relocated generator and wet well modifications in electronic PDF. Task 8 — Services During Construction (New Task) Objective: Provide engineering services during construction of the Marina Pump Station improvements to the level of effort stated in the attached Fee Estimate. Approach: 8.1 Prepare Conformed for Construction Documents — Revise and update the bid plans, non -technical and technical specifications, and appendices to reflect addenda issued during the bidding phase. Produce hard copies of the conformed for construction documents for contractor, City, and RH2's use during construction. Revise and update the equipment list, instrumentation schedule, and process control narratives, if applicable, to reflect addenda issued during the bidding phase. ra 10/26/2022 10:04:56 AM Z:\PROJECTS\DATA\PO\118-116\CONTRACT\AMEND NO. 7\AMND_NO. 7_SOW_PO_MARINA PUMP STATION.DOCX Pagd'205 6f 263 Back to Agenda City of Port Orchard Exhibit A Marina Pump Station Rebuild Scope of Work Phase 3 — Final Design and Phase 4 — Service During Construction Amendment No. 7 8.2 Attend Pre -Construction Meeting — Prepare pre -construction meeting agenda. Send notice of meeting location, date, time, and agenda to invitees. Attend the pre -construction meeting. Prepare meeting minutes and distribute to attendees. 8.3 Provide Construction Consultation and Document Review — Consult with the City on construction costs, scheduling, and constructability issues. Review shop drawings and catalog submittals of items requested in the technical specifications. Provide a written response to the contractor and the City accepting or rejecting each shop drawing and reviewed catalog submittal. Review written requests for information (RFIs) and change order proposals, and provide written responses to the contractor and the City. Review monthly pay requests by the contractor and coordinate with the City for processing payment. Prepare Construction Quality Assurance Plan (CQAP) and submit to the Washington State Department of Ecology (Ecology). 8.4 Provide On -Site Construction Observation — Provide an RH2 representative every two (2) weeks at construction progress meetings for the 104 weeks of construction. Prepare meeting minutes and distribute to attendees. Review contractor's look -ahead construction schedule. Provide on -site construction observation and prepare observation reports. The Fee Estimate reflects ten (10) hours per week of on -site observation by an RH2 representative for the duration of the construction period and four (4) hours per week for biweekly construction meetings (assumed to be 104 weeks) including travel. Prepare progress reports, including construction contract time remaining statements. Coordinate with the contractor regarding construction schedule, progress, and constructability issues. 8.5 Provide Testing and Startup Observation — Coordinate with the contractor and the City for the scheduled testing and startup activities. This coordination will include the review and supplementation of the testing protocols developed by the contractor and manufacturers' representatives, review of the tests, and request for corrections. Review and supplement startup protocols developed by the contractor and manufacturers' representatives. Attend factory witness testing of the motor control center and control panels at the Control System Integrator's facility. Provide on -site observation during startup to document activities and coordinate with the contractor. Discuss with the contractor and the City work that has not been completed by the contractor (punch list) and discuss contractor rectification. 8.6 Attend Final Walkthrough and Project Closeout — Attend final walkthrough with the City and prepare a letter of recommendation for project acceptance to the City. Prepare and submit the Washington State Department of Health Construction Completion Report (CCR) for those items of construction observed by RH2. Prepare and submit Ecology's Construction Completion Form. e3 10/26/2022 10:04:56 AM Z:\PROJECTS\DATA\PO\118-116\CONTRACT\AMEND NO. 7\AMND_NO. 7_SOW_PO_MARINA PUMP STATION.DOCX Pag6P2 df 263 Back to Agenda City of Port Orchard Exhibit A Marina Pump Station Rebuild Scope of Work Phase 3 — Final Design and Phase 4 — Service During Construction Amendment No. 7 8.7 Prepare Construction Record Drawings and Review O&M Manuals — Obtain contractor and City construction field records. Review field records, including RH2's, and revise the conformed for construction drawings to construction record drawings. Review the contractor -provided operation and maintenance (O&M) manuals for consistency with installed equipment and instrumentation. 8.8 Prepare Facility 0&M Manuals— Prepare detailed 0&M manual sections for the Marina Pump Station improvements. Include an overview of process components, a detailed description of normal and emergency operational procedures, troubleshooting and preventative maintenance measures, and operator safety considerations. Include appendices of process schematics, manufacturer documentation, material safety data sheets (MSDS), and periodic operations checklists. Provide Ecology with a copy of the Marina Pump Station O&M manual sections for review and incorporate comments into final 0&M manual sections. Assumptions: • Construction phase services defined in this Task are variable in nature and depend in part on the contractor awarded the project. RH2's estimate is based upon an experienced and reasonable contractor being awarded the construction contract. • RH2 will be the primary point of contact for the general contractor during construction. However, RH2 has not included full-time construction observation services in the Fee Estimate. It is assumed that part-time site observation by RH2 will be sufficient and the City will be performing the lead role in on -site construction inspection. • RH2 will perform the services described up to the amounts included in the attached Fee Estimate. If additional effort is needed, that extra work will be mutually determined by the City and RH2. • Special inspections for concrete testing, compaction, and other materials testing shall be procured and paid by the City. • RH2 is not responsible for site safety, for determining means and methods, or for directing the contractor in their work. Provided by City: • Meeting space and attendance at the pre -construction meeting. • Conformed for construction non -technical specifications. • Processing payments to the contractor. • Attendance at construction progress meetings. • Construction inspection, including payment of fees for special inspections for concrete, compaction, and coating systems. 4 10/26/2022 10:04:56 AM Z:\PROJECTS\DATA\PO\118-116\CONTRACT\AMEND NO. 7\AMND_NO. 7_SOW_PO_MARINA PUMP STATION.DOCX Pagb Bf 263 Back to Agenda City of Port Orchard Exhibit A Marina Pump Station Rebuild Scope of Work Phase 3 — Final Design and Phase 4 — Service During Construction Amendment No. 7 RH2 Deliverables: • Two (2) full-size hard copies and five (5) half-size hard copies of the conformed for construction plans, five (5) hard copies of the conformed for construction specifications and appendices, and one (1) PDF of the conformed for construction plans, specifications, and appendices for the contractor. • Five (5) hard copies (three (3) for the City and two (2) for RH2), one (1) PDF, and one (1) Word file (specifications) of the conformed for construction plans (half-size), specifications, and appendices for the City. • Notice to invitees of the pre -construction meeting location, date, and time. • One (1) PDF and one (1) Word file (for the City) of the pre -construction meeting agenda and hard copies for the attendees. • One (1) hard copy, one (1) PDF, and one (1) Word file (for the City) of the pre -construction meeting minutes. • Written responses to contractor -provided shop drawings and submittals, RFIs, change orders, and pay requests in electronic PDF. • One (1) PDF and one (1) hardcopy of the CQAP submitted to Ecology and one (1) duplicate copy to the City. • Construction progress meeting minutes in electronic PDF and Word formats. • Construction observation reports in electronic PDF and Word formats. • Construction progress reports and construction contract time remaining statements in electronic PDF and Word/Excel formats. • Written responses in PDF format to contractor -provided testing and startup protocols and requests to contractor for correction. • Startup checklists and summaries of startup results in electronic PDF and Excel formats. • Written responses in PDF format for contractor -provided O&M manuals. • Two (2) full-size hard copies, one (1) PDF, and AutoCAD .dwg files of the construction record drawings. • Written punch list in PDF format to contractor and one (1) hard copy, one (1) PDF, and one (1) Word file for the City. • One (1) hard copy, one (1) PDF, and one (1) Word file of letter of recommendation for project acceptance. • One (1) hard copy of CCR submittal to DOH and one (1) PDF duplicate to the City. 5 10/26/2022 10:04:56 AM Z:\PROJECTS\DATA\PO\118-116\CONTRACT\AMEND NO. 7\AMND_NO. 7_SOW_PO_MARINA PUMP STATION.DOCX Pag6P2 Of 263 Back to Agenda City of Port Orchard Exhibit A Marina Pump Station Rebuild Scope of Work Phase 3 — Final Design and Phase 4 — Service During Construction Amendment No. 7 • One (1) hard copy of Construction Completion form submittal to Ecology and one (1) PDF duplicate to the City. • Five (5) hard copies (one (1) for Ecology and four (4) for the City), one (1) PDF, and one (1) Word file of the draft O&M manual sections. • Five (5) hard copies (one (1) for Ecology and four (4) for the City), one (1) PDF, and one (1) Word file of the final draft O&M manual sections. 10/26/2022 10:04:56 AM Z:\PROJECTS\DATA\PO\118-116\CONTRACT\AMEND NO. 7\AMND_NO. 7_SOW_PO_MARINA PUMP STATION.DOCX PagRW t@263 Back to Agenda EXHIBIT B Fee Estimate Amendment No. 7 City of Port Orchard Marina Pump Station Rebuild Phase 3 - Final Design and Phase 4 - Services During Construction Oct-22 Total I Total Labor I Total Subconsultant Total Expense I Total Cost Description Hours Task 1 Project Management Services (Additional Work) 124 $ 25,540 $ - $ 3,331 $ 28,871 1.6 Provide Additional Project Management and Coordination Meetings 124 $ 25,540 $ - $ 3,331 $ 28,871 Task 6 Bid -Ready Design Plans, Specifications, and Cost Estimate (Additional Work) 554 $ 109,064 $ 48,969 $ 13,614 $ 171,647 6.11 IRelocate Emereencv Generator and Revise Generator Enclosure 126 5 24.112 1 5 - 1 S 3.023 1 S 27.135 6.12 Revise Multi -Use Access Trail for Fuel Truck Access 78 $ 15,854 $ 6,900 $ 1,771 $ 24,525 6.13 Incorporate Wet Well Improvements and Platform 120 $ 23,328 $ 22,864 $ 2,618 $ 48,811 6.14 Incorporate City's Antenna Mast and Antennas 112 $ 21,852 $ - $ 2,251 $ 24,103 6.15 Assist the City with Preparing Figures for MOU 36 $ 7,244 $ 19,205 $ 896 $ 27,345 6.16 Revise Landscaping, Site, and Architectural Plans 82 $ 16,674 $ - $ 3,054 $ 19,728 Task 8 Services During Construction (New Task) 2932 $ 569,682 $ - $ 88,991 $ 658,673 8.1 Prepare Conformed for Construction Documents 24 $ 4,262 $ - $ 5,377 $ 9,639 8.2 Attend Pre -Construction Meeting 34 $ 7,226 $ - $ 595 $ 7,821 8.3 Provide Construction Consultation and Document Review 1004 $ 201,352 $ - $ 21,561 $ 222,913 8.4 Provide On -Site Construction Observation 1456 $ 275,808 $ - $ 50,055 $ 325,863 8.5 Provide Testing and Startup Observation 112 $ 22,852 $ - $ 1,914 $ 24,766 8.6 Attend Final Walkthrough and Project Closeout 72 $ 14,496 $ - $ 1,414 $ 15,910 8.7 Prepare Construction Record Drawings and Review O&M Manuals 128 $ 24,184 $ - $ 5,700 $ 29,884 8.8 Prepare Facility O&M Manuals 102 $ 19,502 $ - $ 2,375 $ 21,877 PROJECTTOTAL 1 3610 1 $ 704,286 1 $ 48,969 1 $ 105,936 1 $ 859,191 Pag@) bf 263 Z:\Projects\Data\PO\118-116\Contract\Amend No. 7'Amnd_No. 7_FEE _PO_Marina Pump Station.xlsm 10/26/2022 5:19 PM Back to Agenda EXHIBIT C RH2 ENGINEERING, INC. 2022 SCHEDULE OF RATES AND CHARGES RATE LIST RATE UNIT Professional $164 $/hr Professional 11 $180 $/hr Professional III $198 $/hr Professional IV $213 $/hr Professional $229 $/hr Professional VI $243 $/hr Professional VII $261 $/hr Professional VIII $271 $/hr Professional IX $271 $/hr Control Specialist 1 $149 $/hr Control Specialist II $162 $/hr Control Specialist III $178 $/hr Control Specialist IV $193 $/hr Control Specialist V $206 $/hr Control Specialist VI $220 $/hr Control Specialist VII $237 $/hr Control Specialist VIII $246 $/hr Technician 1 $125 $/hr Technician II $136 $/hr Technician 111 $154 $/hr Technician IV $166 $/hr Technician V $182 $/hr Technician VI $199 $/hr Technician VII $215 $/hr Technician Vill $227 $/hr Administrative 1 $81 $/hr Administrative II $96 $/hr Administrative 111 $115 $/hr Administrative IV $136 $/hr Administrative V $155 $/hr CAD/GIS System $27.50 $/hr CAD Plots - Half Size $2.50 price per plot CAD Plots - Full Size $10.00 price per plot CAD Plots - Large $25.00 price per plot Copies (bw) 8.5" X 11" $0.09 price per copy Copies (bw) 8.5" X 14" $0.14 price per copy Copies (bw) 11" X 17" $0.20 price per copy Copies (color) 8.5" X 11" $0.90 price per copy Copies (color) 8.5" X 14" $1.20 price per copy Copies (color) 11" X 17" $2.00 price per copy Technology Charge 2.50% % of Direct Labor Mileage $0.6250 price per mile (or Current IRS Rate) Subconsultants 15% Cost + Outside Services at cost Rates lisfeOMWAW Nnnually. Back to Agenda City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Business Item 7.1 Subject: Adoption of a Resolution Authorizing the Re -appointment of Tim Drury as as the City's Abatement Hearing Officer Meeting Date: Prepared by: December 20, 2022 Charlotte Archer City Attorney Atty Routing No.: 366922-0011- DCD Atty Review Date: December 16, 2022 Summary: The City utilizes the services of a contract abatement hearing officer to provide an opportunity for the appeal of code enforcement notices issued by the City's code enforcement officer. This independent hearing officer provides due process through a hearing by which the officer evaluates the code enforcement notice and procedures utilized, at the request of the appealing party. The City appointed Tim Drury to serve in this role, for a nominal per/hearing fee, in 2019, and his term will expire at the end of this year. The City has received a request for an appeal hearing, to occur early next year. Staff recommends extending Judge Drury's term in this role in order to provide this public service. Recommendation: Staff recommends approval of the Resolution re -appointing Judge Drury as the City's abatement hearing officer for a four-year term. Relationship to Comprehensive Plan: N/A Motion for consideration: "I move to adopt a Resolution re -appointing Tim Drury as the City's abatement hearing officer for a four-year term" Fiscal Impact: This administrative cost is passed through to the appellant in an appeal fee. Alternatives: Do not approve and provide alternative guidance. Attachments: Resolution Page 262 of 263 Back to Agenda RESOLUTION NO. A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, CONFIRMING THE MAYORAL RE -APPOINTMENT OF TIM DRURY AS THE CITY'S ABATEMENT HEARING EXAMINER. WHEREAS, Port Orchard Municipal Code (POMC) Chapter 20.21-2 - Unsafe Dwellings, Buildings, and Structures - specifies that appeals of abatement orders be heard by an abatement hearing officer; and WHEREAS, POMC Chapters 2.08 and 2.82 establish the position of abatement hearing officer and specify the duties thereof, and POMC 2.08.120 provides that the Mayor may appoint the abatement hearing officer with confirmation by a majority vote of the City Council; and WHEREAS, by Resolution No. 031-19, the City Council affirmed the Mayor's appointment of Judge Tim Drury as the City's abatement hearing officer for a term expiring on December 31, 2022; and WHEREAS, the Mayor desires to re -appoint Judge Drury for an additional period of service as the City's abatement hearing officers; and WHEREAS, the City Council finds it is in the best interest of the City and its residents to confirm this re -appointment and continue to provide this public service; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. THAT: Tim Drury is hereby re -appointed to serve as the City's abatement hearing officer, pursuant to POMC 2.08 and 2.82 for a term commencing on January 1, 2023 and ending on December 31, 2026. The Mayor is authorized to execute a contract extension for these services. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 201" day of December 2022. ATTEST: Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 263 of 263