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06/26/2018 - Regular - Packet City of Port Orchard Council Meeting Agenda June 26, 2018 6:30 p.m. 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. When recognized by the Mayor, please state your name for the official record) 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 Checks and Payroll B. Approval of the May 29, 2018, Special Council Meeting-Town Hall Minutes Page 3 C. Approval of the June 12, 2018, Council Meeting Minutes Page 5 D. Adoption of a Resolution Declaring Certain Personal Property as Surplus and Authorizing the Disposition Thereof (Rinearson) Page 11 E. Approval of an Interlocal Agreement with Kitsap County, the City of Bainbridge Island, the City of Bremerton, the City of Poulsbo, the Suquamish Tribe, and the Port Gamble S’Kallam Tribe (Marti) Page 15 F. Approval of an Interlocal Agreement with the Kitsap Conservation District for Low Impact Development and Water Quality Improvements (Dorsey) Page 55 G. Excusal of Councilmembers Ashby and Diener Due to Personal Obligations 5. PRESENTATION 6. PUBLIC HEARING 7. BUSINESS ITEMS A. Adoption of an Ordinance Adopting the Revised Exhibit A to the Interim Self-Storage Facilities Ordinance (Bond) Page 67 B. Adoption of an Ordinance Adopting Revisions to Port Orchard Municipal Code Title 12 for Consistency with Resolution No. 030-17 Administrative Fee Schedule (Bond) Page 79 C. Adoption of a Resolution Approving a Contract with BHC Consultants for the 2018-2020 Well No. 13 Final Ad Ready Design, Permitting, Bid Support and Construction Administration Services (Dorsey) Page 101 Mayor: Rob Putaansuu Administrative Official Councilmembers: Bek Ashby Chair: ED/Tourism/LT Committee Staff: Development Director Finance Committee KRCC / PSRC TransPol / KRCC TransPol KRCC PlanPol-alt / PRTPO Shawn Cucciardi Finance Committee Land Use Committee PSRC EDD-alt Fred Chang Utilities Committee Sewer Advisory Committee (SAC) Staff: Development Director Jay Rosapepe ED/Tourism/LT Committee Utilities Committee Sewer Advisory Committee (SAC) KRCC-alt / KRCC TransPol-alt Kitsap Transit-alt John Clauson Chair: Finance Committee Staff: Finance Director Kitsap Public Health District-alt KEDA/KADA-alt Cindy Lucarelli Chair: Utilities and SAC Committee Staff: Public Works Director Chair: Chimes and Lights Committee Staff: City Clerk KEDA/KADA Scott Diener (Mayor Pro-Tempore) Chair: Land Use Committee Staff: Development Director ED/Tourism/LT Committee PSRC Growth Mgmt-alt Department Directors: Nicholas Bond, AICP Development Director Mark Dorsey, P.E. Director of Public Works/City Engineer Debbie Hunt Court Administrator Noah Crocker, M.B.A. Finance Director Geoffrey Marti Police Chief Brandy Rinearson, MMC, CPRO City Clerk Contact us: 216 Prospect Street Port Orchard, WA 98366 (360) 876-4407 D. Approval of Change Order No. 3 to Contract No. 037-17 with Active Construction Inc. for the Tremont Street Widening Project (Dorsey) Page 151 E. Approval of a Contract with Northwest Urban Law PLLC for Land Use Legal Counsel (Mayor) Page 169 F. Approval of Amendment No. 2 to Contract No. 018-16 with Lighthouse Law Group PLLC, for City Attorney Services (Mayor) Page 177 G. Discussion: Hanley Property-Proposed Kitsap County Comprehensive Plan Amendment (Bond) Page 201 8. REPORTS OF COUNCIL COMMITTEES 9. REPORT OF MAYOR 10. REPORT OF DEPARTMENT HEADS 11. 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) 12. EXECUTIVE SESSION: Pursuant to RCW 42.30.110, the City Council may hold an executive session. The topic(s) and the session duration will be announced prior to the executive session. 13. ADJOURNMENT COMMITTEE MEETINGS Date & Time Location Finance TBD, 2018; ** City Hall Economic Development and Tourism July 9, 2018; 9:30am City Hall Utilities July 16, 2018; 9:30am City Hall Sewer Advisory July 18, 2018; 6:30pm SKWRF* Land Use July 2, 2018; 9:30am DCD** Lodging Tax Advisory TBD City Hall Festival of Chimes & Lights July 16, 2018, 3:30pm City Hall Outside Agency Committees Varies Varies *South Kitsap Water Reclamation Facility, 1165 Beach Drive **DCD, Department of Community Development, 720 Prospect Street, Port Orchard CITY COUNCIL GOOD OF THE ORDER City of Port Orchard Council Meeting Minutes Townhall Meeting of May 29, 2018 CALL TO ORDER AND ROLL CALL Mayor Putaansuu called the meeting to order at 6:30 p.m. Roll call was taken by Office Assistant II Whisenant as follows: Councilmember Ashby Present Councilmember Chang Present Councilmember Clauson Present Councilmember Cucciardi Present Mayor Pro-Tem Diener Present Councilmember Lucarelli Present Councilmember Rosapepe Present Mayor Putaansuu Present Staff present: Office Assistant II Whisenant was present. Special Guest: Kitsap County Commissioner Garrido. PLEDGE OF ALLEGIANCE Mayor Putaansuu led the audience and Council in the Pledge of Allegiance. 1. Proposed Ban on Single Use Plastic Bags Mayor Putaansuu introduced the Town Hall topic and representatives from the City and Kitsap County. Chris Piercy, from the Kitsap County Solid Waste Division, informed the audience of the County’s current position and process on pursuing an ordinance for the possible ban on plastic bags. Mayor Putaansuu informed the public that the City hasn’t taken a position at this time. Citizens, County Representatives, Kitsap Sun Reporter, Mayor, and Councilmembers spoke on various concerns, studies regarding different bag uses, and inquired on clarifications of what the plastic bag ban entails, along with exemptions. Further discussions were had on the environmental impacts, educational outreach, personal habit changes that can make a difference, potential recycling incentives, and code enforcement. 3 of 206 Mayor Putaansuu informed public that the Chamber of Commerce did reach out to local retail stores and invite them to be a part of this discussion. Councilmembers expressed their individual outreach to various retail locations. Commissioner Garrido stated that this Town Hall was very informative and would be considering the impacts of the plastic bags to waste facilities. In addition, she suggested distributing the list of bag exemptions to the public if the ban moves forward, educate the youth, and change personal habits to decrease waste levels. Councilmembers and County representatives discussed the impact of only the single-use bags, potential benefit with the exemptions still being a contributing factor, the impact to waste facilities, and educational public awareness. Mayor Putaansuu closed the meeting by reiterating the four guiding questions, as discussed from the Council Retreat, and thanked everyone for attending. Council Direction: No direction was given. 2. ADJOURNMENT The meeting adjourned at 7:25 p.m. No other action was taken. Audio/Visual was successful. Brandy Rinearson, MMC, City Clerk Robert Putaansuu, Mayor 4 of 206 City of Port Orchard Council Meeting Minutes Regular Meeting of June 12, 2018 1. CALL TO ORDER AND ROLL CALL Mayor Putaansuu called the meeting to order at 6:30 p.m. Roll call was taken by the Deputy City Clerk as follows: Councilmember Ashby Present Councilmember Chang Present Councilmember Clauson Present Councilmember Cucciardi Present Mayor Pro-Tem Diener Present Councilmember Lucarelli Present Councilmember Rosapepe Present Mayor Putaansuu Present Staff present: Public Works Director Dorsey, Finance Director Crocker, Community Development Director Bond, City Attorney Cates, Deputy City Clerk Floyd, and Office Assistant II Whisenant were also present. A. PLEDGE OF ALLEGIANCE Mayor Putaansuu led the audience and Council in the Pledge of Allegiance. 2. APPROVAL OF AGENDA MOTION: By Councilmember Ashby, seconded by Councilmember Chang, to approve the agenda as presented. The motion carried. 3. CITIZENS COMMENTS Shannon Childs discussed the special event application from Kitsap Bank for the 100th Anniversary Employee Launch Party and noted this event is also to unveil their new logo. Brian Nielsen spoke about the Circuit of the Northwest track project. 4. CONSENT AGENDA A. Approval of Check Nos. 74426 through 74570 totaling $674,568.57; May Electronic Payment Dates 5/1/2018 through 5/31/2018 totaling $16,519.13; and Bi-Weekly Payroll including Check Nos. 147956 through 147967 totaling $582,357.71. 5 of 206 B. Adoption of a Resolution Approving a Contract with Krazan & Associated, Inc. for the 2018 McCormick Village Park Phase 2 Construction Materials Testing and Inspections (Resolution No. 026-18) C. Adoption of a Resolution Approving a Contract with Krazan & Associated, Inc. for the 2018 Well No. 9 Retrofit Materials Testing and Inspections (Resolution No. 027-18) D. Approval of a Contract with the Port Orchard Independent as the City’s Official Newspaper (Contract No. 048-18) E. Approval of the May 15, 2018, Council Work Study Session Minutes F. Approval of the May 18, 2018, Special Council Meeting-Retreat Minutes MOTION: By Councilmember Ashby, seconded by Councilmember Lucarelli, to approve the consent agenda as presented. The motion carried. In response to Councilmember Clauson, Mayor Putaansuu agreed that the agenda could be rearranged so the individuals who are attending the meeting regarding their items can go first [Resolution for the Circuit of the Northwest and Special Event Application: 110th Anniversary Employee Launch Party]. 5. BUSINESS ITEMS A. Resolution of Support for the Circuit of the Northwest Track Project MOTION: By Councilmember Clauson, seconded by Councilmember Cucciardi to approve the resolution showing that the City Council of the City of Port Orchard is supportive of the Circuit of the Northwest Track. The motion carried. (Resolution No. 029-18) B. Approval of Special Event Application: Kitsap Bank 110th Anniversary Employee Launch Party MAIN MOTION: By Councilmember Lucarelli, seconded by Councilmember Clauson, to approve the special event application for Kitsap Bank to hold their 110th Anniversary Employee Launch Party Event using City property and allow for street closures, as presented. Council and staff discussed concerns with closing Bay Street to Sidney and the effect it could have on businesses. 6 of 206 AMENDED MOTION: By Councilmember Ashby, seconded by Councilmember Diener, to allow for the street closures with closing Bay Street from Kitsap to Frederick and the area from Frederick to Sidney be local access only. The amended motion carried. The main motion carried. 6. PRESENTATION A. ERR Fund Finance Director Crocker gave a presentation on the Equipment Rental Revolving Fund. 7. PUBLIC HEARING No public hearings were held. 8. BUSINESS ITEMS A. Adoption of an Ordinance Approving a Franchise Agreement with West Sound Utility District MOTION: By Councilmember Lucarelli, seconded by Councilmember Rosapepe, to adopt an ordinance, thereby establishing a Franchise Agreement between the City of Port Orchard and the West Sound Utility District. The motion carried. (Ordinance No. 016-18) B. Adoption of an Ordinance Adopting Finding of Fact in Support of Ordinance No. 015-18, and Confirming Continuance of that Ordinance MOTION: By Councilmember Diener, seconded by Councilmember Cucciardi, to adopt an ordinance, adopting findings of fact in support of Ordinance No. 015-18, and confirming continuance of that ordinance, as presented. The motion carried. (Ordinance No. 017-18) C. Approval of a Resolution Approving a Contract with BCRA Inc. for the 2018 Interim Engineer- in-Training (E.I.T.) Position 7 of 206 MOTION: By Councilmember Clauson, seconded by Councilmember Ashby, to adopt Resolution No. 025-18, thereby approving Contract No. C042-18 with BCRA, Inc. in an amount not to exceed $12,000 per month for the 2018 Interim E.I.T. Position and documenting the professional services procurement procedures pursuant to RCW 39.80. The motion carried. (Resolution No. 025-18) D. Adoption of a Resolution Approving a Contract with Sullivan Heating & Cooling Inc. for the COPO Library HVAC Replacement MAIN MOTION: By Councilmember Diener, seconded by Councilmember Cucciardi, to adopt Resolution No. 028-18, thereby approving Small Words Contract No. C047-18 with Sullivan Heating & Cooling, Inc. in an amount not to exceed $30,826.29 (applicable tax included) for the 2018 City of Port Orchard Library HVAC Replacement Project. With the understanding of a final written agreement from KRL for the shortfall. AMENDED MOTION: By Councilmember Clauson, seconded by Councilmember Ashby, to strikeout the word ‘KRL’ from the last sentence of the motion so it states, ‘With the understanding of a final written agreement for the shortfall.’ The amended motion carried. The main motion carried. (Resolution No. 028-18) E. Approval of the May 22, 2018, Council Meeting Minutes MOTION: By Councilmember Diener, seconded by Councilmember Clauson, to approve the minutes of May 22, 2018, as presented. The motion passed. Councilmember Cucciardi abstained. F. Discussion: Hanley Property-Proposed Kitsap County Comprehensive Plan Amendment Councilmember Diener recused himself at 7:44 p.m., declaring a conflict of interest. MOTION: By Councilmember Chang, seconded by Councilmember Rosapepe, to direct staff to finalize and send the letter to Kitsap County regarding the Hanley Comprehensive Plan amendment as presented. 8 of 206 The motion passed. Councilmember Diener returned to the meeting at 7:54 p.m. 9. REPORTS OF COUNCIL COMMITTEES Councilmember Clauson reported that the next Finance Committee is scheduled for June 19th. Councilmember Ashby reported on the June 11th Economic Development and Tourism Committee. The next meeting is scheduled for July [9th]. Councilmember Lucarelli reported the Utilities Committee Meeting for June 18th has been canceled. The next meeting is scheduled for July 16th. The Sewer Advisory Committee is scheduled to meet July 18th. The Festival of Chimes and Lights Committee is scheduled for next Monday [June 18th]. Councilmember Diener reported on the June 4th Land Use Committee meeting. The next meeting is scheduled for July 2nd. Mayor Putaansuu reported on KRCC (Kitsap Regional Coordinating Council) Transportation award; Growth Management Policy Board; and Fast Ferry conference in King County. Councilmember Ashby will be attending the Department of Transportation’s executive summary for the Highway 16 and Highway 3 study. 10. REPORT OF MAYOR Mayor Putaansuu reported on the following: • Town Hall meeting; • Rockwell Park update; • June 26th Council meeting absences; • Specialized Land Use attorney; • July work study presentation of Kitsap County’s new criminal justice center; • Updated laws on indigent defense; and • Bi-Mart grand opening. 11. REPORT OF DEPARTMENT HEADS Public Works Director Dorsey reported on McCormick Village Park; Rockwell Park; Anderson/Clifton design; Well No. 9; Tremont Widening project; Bay Street Pedestrian Pathway; and brackets for the banner. 9 of 206 Finance Director Crocker reported the Finance Department was awarded a grant from Washington Finance Officers Association for a summer intern and noted the City is currently being audited. Community Development Director Bond reported all comprehensive plan amendments will be brought before Council at their next work study meeting for review and future adoption. Deputy City Clerk Floyd asked the Mayor and Council their availability to take a photo for the website. It was agreed to take the photo during the first meeting in July. Councilmember Clauson noted that there is a ‘No Left Turn’ sign from Cline to Division; however, he has noticed vehicles making that left turn, and asked if our Chief could be notified. Mayor Putaansuu stated the City Attorney is working on a tree policy and the Chief will be updating the Council on staffing. 12. CITIZENS COMMENTS There were no citizen comments. 13. EXECUTIVE SESSION No executive session was held. 14. ADJOURNMENT The meeting adjourned at 8:27 p.m. No other action was taken. Audio/Visual was successful. Jenine Floyd, CMC, Deputy City Clerk Robert Putaansuu, Mayor 10 of 206 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 Meeting Date: June 26, 2018 Subject: Adoption of a Resolution Declaring Certain Prepared by: Brandy Rinearson, MMC Personal Property as Surplus and City Clerk Authorizing the Disposition Thereof Atty Routing No.: N/A Atty Review Date: N/A Summary: On March 14, 2018, a 2017 Ford Explorer police vehicle was involved in a collision. The collision left the vehicle in disrepair. The City’s insurer has declared the vehicle as a total loss and will compensate the City the actual cash value of the vehicle. The Clerk’s department is requesting that the vehicle listed below be declared surplus and be disposed of in the best interest of the City: 1) 2017 Ford Explorer, Sport Utility, WA. License 62613D, VIN# 1FM5K8ARXHGC63428 Recommendation: Declare vehicles as surplus. Relationship to Comprehensive Plan: None. Motion for consideration: I move to adopt a resolution authorizing the City to declare the 2017 Ford Explorer as surplus and staff to dispose of the vehicle in the best interest of the City. Fiscal Impact: The City’s insurer will be paying actual cash value of the vehicle. The amount is $33,365, plus tax. This will be added to the general fund. Alternatives: None. Attachments: Resolution. 11 of 206 12 of 206 RESOLUTION NO. ________ A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON DECLARING CERTAIN PERSONAL PROPERTY AS SURPLUS AND AUTHORIZING THE DISPOSITION THEREOF. WHEREAS, on March 14, 2018, a police vehicle was involved in a collision. The incident left the vehicle in total disrepair. WHEREAS, on May 7, 2018, the City’s insurer declared the vehicle as a loss and offered the City actual cash value of the vehicle ($33,365, plus tax); and WHEREAS, certain personal property owned by the City of Port Orchard has become surplus; and WHEREAS, the City Council desires to dispose of said property in the best interest of the City; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD DOES HEREBY RESOLVE THE FOLLOWING: THAT: The property described below is declared as surplus. Staff is instructed to dispose of the item in a manner that reflects the best interest of the City: 2017 Ford Explorer, License 62613D, VIN# 1FM5K8ARXHGC63428 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 26th day of June 2018. Robert Putaansuu, Mayor ATTEST: Brandy Rinearson, MMC, City Clerk 13 of 206 14 of 206 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 4E Meeting Date: June 26, 2018 Subject: Approval of an Interlocal Agreement with Kitsap Prepared by: Geoffrey C. Marti County, the City of Bainbridge Island, the City of Chief of Police Bremerton, the City of Poulsbo, the Suquamish Atty Routing No.: 055-18 Tribe, and the Port Gamble S’Kallam Tribe for Atty Review Date: June 15, 2018 “Ride-Along” Software Summary: The Kitsap County Sheriff’s Office (“KCSO”) has obtained grant funding from the Kitsap County Human Services Department to purchase and implement the RideAlong Labs Inc. (“RideAlong”) application. It is a software tool which will be made available for use to law enforcement personnel to facilitate and enhance interactions between law enforcement and individuals with mental health issues. Recommendation: I would recommend signing this Interlocal agreement and application use agreement. Relationship to Comprehensive Plan: N/A Motion for consideration: I move that the Mayor sign the interlocal agreement and application use agreement to implement of the “Ride Along” software tool for the Port Orchard Police Department. Fiscal Impact: None. Alternatives: Do not approve and provide direction to staff. Attachments: Interlocal Agreement, Application Use Agreement, and Letter from KCSO. 15 of 206 16 of 206 AN INTERLOCAL AGREEMENT FOR RIDEALONG LABS SERVICES THIS INTERLOCAL AGREEMENT FOR RIDEALONG LABS INC SERVICES (“Agreement”) is made and entered into by and among Kitsap County, the City of Bainbridge Island, the City of Bremerton, the City of Poulsbo, the City of Port Orchard, the Suquamish Tribe, and the Port Gamble S’Kallam Tribe, collectively referred to herein as the “Parties” and individually as a “Party”. RECITALS A. The Interlocal Cooperation Act, Chapter 39.34 RCW, allows public agencies to enter into cooperative agreements to more efficiently provide services within their jurisdictions. B. The Kitsap County Sheriff’s Office (“KCSO”) has obtained grant funding from the Kitsap County Human Services Department to purchase and implement the RideAlong Labs Inc. (“RideAlong”) application, a software tool which will be made available for use to law enforcement personnel to facilitate and enhance interactions between law enforcement and individuals with mental health issues. C. The RideAlong application is intended to provide information to assist law enforcement with the aim of reducing incarceration and recidivism of persons with mental health issues. D. KCSO has executed a contract with RideAlong for the application and is able and willing to make the application available for use by the Parties’ sworn law enforcement personnel subject to the terms and conditions in this Agreement. E. The Parties desire to enter into this Agreement to cooperatively provide for the administration of the RideAlong application, and the corresponding activities of the Crisis Intervention Team and related policies (collectively “Program”) for the benefit of law enforcement and the community. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference, and the mutual promises and covenants, the Parties agree as follows: 1. PURPOSE. The purpose of this Agreement is to provide for the joint and cooperative undertaking of the Parties to establish, implement and manage the Program, identify those persons responsible for administering the Program, and define responsibilities as contemplated in RCW 39.34.030. The Parties do not intend to create through this Agreement a separate legal or administrative entity subject to suit. 2. RESPONSIBILITIES OF THE PARTIES. The Parties acknowledge and agree as follows: 2.1 Each Party will be required to execute a separate service agreement with RideAlong 17 of 206 Labs Inc. in order to obtain access to the RideAlong application and related materials and services and participate in the Program. 2.2 The Parties will work cooperatively to implement and utilize the Program, participate in user testing, and market and promote the Program to law enforcement personnel and the community. 2.3 Each Party will designate one or more law enforcement personnel to participate as active members of the Crisis Intervention Team (“CIT”). Each Party will pay all costs associated with its personnel and equipment when participating as a CIT member. 2.4 The CIT will initially meet once per week, if not more, to draft Program policies and procedures, and to review, develop, approve, upload and remove individual response plans, and perform any other functions necessary for the success of the Program. It is anticipated that the number of required CIT meetings will fluctuate, with more meetings required prior to and immediately after the launch of the Program. 2.5 The Parties agree to comply with the policies and procedures developed and adopted by the CIT for the Program. 2.6 Pursuant to RCW 10.93.040, personnel assigned to the CIT shall be considered the employees of the primary commissioning agency, which shall be solely and exclusively responsible for that employee. All rights, duties and obligations of the employer shall remain with the primary commissioning Agency. Each Party agrees to indemnify, defend and hold harmless the other Parties in any action arising from or related to the negligence of its own employees, including all costs of defense and attorney's fees. 2.7 Each Party will be responsible for ensuring compliance with all applicable laws, collective bargaining agreements, and/or civil service rules and regulations with regard to its own employees. 2.8 Personnel assigned as CIT members shall conform to their agency's rules and regulations, as well as CIT policy. 2.9 All response plans developed by CIT and made available in the RideAlong application shall be considered confidential intelligence information essential to effective law enforcement and kept confidential by the Parties. Each Party shall be solely responsible for the use of the application, and all associated information, by its own employees. 3. SOFTWARE AND LICENSE FEES. KCSO has obtained sufficient grant funding to pay for the RideAlong application software, services and license fees for the Parties for three (3) years, commencing on April 15, 2018. Should this Agreement be renewed or extended, each Party shall be responsible for paying the RideAlong per user license fee for their designated users of the software and associated fees. In such an event, this Agreement may 18 of 206 be amended to identify the amount, time, manner and method of payment. It is anticipated that KCSO, having contracted with RideAlong to provide the application, will be responsible for contract administration and the coordination of the payment of all license and associated fees to RideAlong on behalf of the Parties. 4. ADMINISTRATOR. KCSO shall function as the administrator of the Program for liaison purposes, in coordination and cooperation with the Parties. By functioning in this capacity, KCSO is not assuming responsibility or liability for the actions, or failures to act, by the other Parties and/or their respective employees. 5. DURATION. The term of the Agreement shall be coterminous with the term of the RideAlong Labs Software Services Agreement executed with KCSO, Exhibit A, not to exceed three (3) years. This Agreement may be extended or renewed by the mutual agreement of the Parties for additional consecutive terms which are coterminous with the term of the extension or renewal of the RideAlong Labs Software Services Agreement. 6. TERMINATION. Any Party may withdraw from this Agreement upon thirty (30) days prior written notice to the other Parties. 7. INDEMNIFICATION 7.1 The Parties shall not be liable to each other, regardless of the form of action, for consequential, incidental, indirect, or special damages except a claim related to bodily injury or death, or a claim or demand based on disclosure of confidential information, data breach, or infringement of protectable interest under patent, copyright, trademark, or trade secret laws. 7.2 Each Party shall save, defend, indemnify, and hold harmless the other Parties, and the other Parties’ officers, employees, and agents, from and against any allegations, claims, and complaints, including reasonable attorneys’ fees and costs, by third parties for any or all injuries to persons, damage to property, disclosure of confidential information, or infringement of a protected patent, copyright, trademark, or trade secret interest of such third parties, which claim arises from intentional, reckless, or negligent acts or omissions of the Party, its officers, employees, or agents. A Party’s obligation to defend, indemnify, and hold harmless the other Party shall not be eliminated or reduced by any alleged concurrent negligence by the other Party. Any damages allowed shall be levied in proportion to the percentage of fault attributable to each Party, and each Party shall have the right to seek contribution from each of the other Parties in proportion to the percentage of fault attributable to each of the other Parties. Moreover, the Parties agree to cooperate and jointly defend any such matter to the fullest extent allowed by law. An agency that has withdrawn assumes no responsibility for the actions of the remaining members arising after the date of withdrawal, but shall remain liable for claims of loss or liability arising prior to the effective date of withdrawal. 7.3 Waiver Sovereign Immunity. The tribes voluntarily provide a limited express waiver of sovereign immunity with respect to the interpretation and enforcement of this Agreement, and its obligations and duties under this Agreement. This 19 of 206 waiver of sovereign immunity shall extend to all suits filed during the term of this Agreement or within the statute of limitation for any cause of action arising, and during the time-frame whereby the tribes may legally be joined or otherwise added as a party to any claim, action or suit. Additionally, the tribes each expressly agree to a waiver of sovereign immunity as a defense to the enforcement of the Agreement up to the limits of its insurance policy in connection with the enforcement of the rights of the other Parties to this Agreement related to the indemnity provisions contained in this section. 7.4 The provisions of Section 7 shall survive for three years after the expiration or termination of this Agreement. 8. PROPERTY. The Parties do not anticipate the acquisition of property for the performance of this Agreement and any property acquired by a Party using this Agreement shall be held by the acquiring Party. 9. NONDISCRIMINATION. No Party shall not discriminate against any person on the basis of race, color, creed, religion, national origin, age, sex, marital status, sexual orientation, veteran status, disability, or other circumstance prohibited by federal, state, or local law, and shall comply with Title VI of the Civil Rights Act of 1964, P.L. 88-354 and Americans with Disabilities Act of 1990 in the performance of this Agreement. 10. GOVERNING LAW/VENUE 10.1 The Agreement shall be made under, construed in accordance with, and governed by the laws of the State of Washington, without regard to conflicts of law or choice of law provisions. Any action arising out of, related to or in connection with this Agreement shall be instituted and maintained only in a court of competent jurisdiction in Kitsap County, Washington or as provided by RCW 36.01.050.This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 10.2 Nothing in this Agreement shall be construed to authorize any suit, execution, attachment, or judicial process against the persons or property of the T ribe or any of its officers, agents, or employees, or against the Tribal Council or any member thereof, other than as specifically provided herein. In no event shall this Agreement be construed to authorize attachment, execution or other judicial process against real property of the Tribe, any property held in trust by the United States or subject to a restriction against alienation imposed by federal law, or any funds held by or on behalf of the Tribe and derived from federal or state grants or contracts. 11. EFFECTIVE DATE/FILING. This Agreement will take effect when executed by KCSO and one other Party. Prior to its entry into force, this Agreement shall be filed with the Kitsap County Auditor’s Office or, alternatively, listed by subject on the web site or other electronically retrievable public source in compliance with RCW 39.34.040. 20 of 206 12. NOTICE. All notices under this Agreement may be delivered or mailed to the Sheriff or Chief of the other Parties law enforcement agency. All notices mailed by regular post (including first class) shall be deemed to have been given on the second business day following the date of mailing, if properly mailed and addressed. Notices sent by certified or registered mail shall be deemed to have been given on the day next following the date of mailing, if properly mailed and addressed. For all types of mail, the postmark affixed by the United States Postal Service shall be conclusive evidence of the date of mailing. 13. COMPLIANCE WITH REGULATIONS AND LAWS. The Parties shall comply with all applicable rules and regulations pertaining to them in connection with the matters covered herein. 14. IMPLIED CONTRACT TERMS. Each provision of law and any terms required by law to be in the Agreement are made a part of the Agreement as if fully stated in it. 15. COUNTERPARTS. This Agreement may be executed in any number of counterparts, all such counterparts shall be deemed to constitute one and the same instrument, with each counterparts deemed an original. In the event that fewer than all named parties execute this Agreement, the Agreement, when filed as provided herein, shall be effective as between the Parties that have executed the Agreement to the same extent as if no other parties had been named. 16. INDEPENDENT CAPACITY. The employees and agents of each Party who are engaged in the performance of this Agreement shall continue to be the employees or agents of that Party and shall not be considered, for any purpose, to be employees or agents of another Party to this Agreement. No Party shall have the authority to bind another Party nor control the employees, agents or contractors of another Party to this Agreement. All rights, duties and obligations of a Party shall remain with that Party. 17. CHANGES, MODIFICATIONS, AND AMENDMENTS. This Agreement may be changed, modified, or amended, only by written agreement executed by the parties hereto. 18. ASSIGNMENT. The rights or obligations under this Agreement, and any claims arising thereunder, are not assignable or delegable by a Party in whole or in part, without the express prior written consent of all other Parties and RideAlong Labs, Inc. 19. DISPUTES. In the event that a dispute arises under this Agreement, it shall be determined by a dispute board in the following manner: Each party to this Agreement shall appoint a member to the dispute board. The dispute board shall evaluate the facts, the terms of the Agreement and applicable statutes and rules and make a determination of the dispute. The determination of the dispute board shall be final and binding on the Parties. 20. WAIVER. A failure by any Party to exercise its rights under this Agreement shall not preclude that Party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement unless stated to be such in a writing signed by an authorized representative of the Party. 21 of 206 21. SEVERABILITY. The provisions of this Agreement are severable. Any term or condition of this Agreement or application thereof deemed to be illegal, invalid or unenforceable, in whole or in part, shall not affect any other term or condition of the Agreement and the parties’ rights and obligations will be construed and enforced as if the Agreement did not contain the particular provision. 22. SURVIVAL. Those provisions of this Agreement that by their sense and purpose should survive expiration or termination of the Agreement shall so survive. Those provisions include, without limitation, Section 2 (Responsibilities of the Parties, Section 7 (Indemnification), and Section 10 (Governing Law/Venue). 23. HEADINGS. Headings of this Agreement are for convenience only and shall not affect the interpretation of this Agreement. 24. ENTIRE AGREEMENT. This Agreement, and Exhibit A, contains the entire understanding of the Parties and supersedes any other agreement or understanding of the Parties relating to the subject matter of this Agreement. 25. AUTHORIZATION. Any authorizations, actions required, or permitted to be taken, and any document required or permitted to be executed under this Agreement will be taken or executed only by a duly authorized representative of the party. Each party warrants and represents to the other that the person signing below has been properly authorized and empowered to execute this Agreement on behalf of the Party for whom they sign and, if applicable, to waive sovereign immunity as required by this Agreement. [Signatures appear on the following pages] 22 of 206 Approved and executed this ___ day of ________, 2018 COUNTY OF KITSAP APPROVED: APPROVED AS TO FORM: ________________________________ ____________________________ GARY SIMPSON, TINA R. ROBINSON Kitsap County Sheriff Kitsap County Prosecuting Attorney APPROVED: KITSAP COUNTY BOARD OF COMMISSIONERS PORT ORCHARD, WASHINGTON ________________________________ Dated: ______________________ ROBERT GELDER, Chair ________________________________ Dated: ______________________ EDWARD E. WOLFE, Commissioner ________________________________ Dated: ______________________ CHARLOTTE GARRIDO, Commissioner ATTEST ________________________________ DANA DANIELS, Clerk of the Board 23 of 206 Approved and executed this ___ day of , 2018 CITY OF PORT ORCHARD APPROVED: APPROVED: _______________________________ _____________________________ GEOFFREY C. MARTI ROBERT PUTAANSUU Chief of Police Mayor Dated: __________________________ Dated: _______________________ APPROVED AS TO FORM: ATTEST: ________________________________ _____________________________ SHARON CATES, City Attorney BRANDY RINEARSON, City Clerk 24 of 206 Approved and executed this ___ day of , 2018 CITY OF POULSBO By: ____________________________ By: ____________________________ BECKY ERICKSON, Mayor ________________, Chief of Police APPROVED AS TO FORM ATTEST ____________________________ ____________________________ ______________, City Attorney ______________, City Clerk Date: _______________________ Date: _______________________ 25 of 206 Approved and executed this ___ day of , 2018 CITY OF BREMERTON APPROVED: APPROVED: _____________________________ _____________________________ JIM BURCHETT GREG WHEELER Chief of Police Mayor APPROVED AS TO FORM: ATTEST: _____________________________ _____________________________ ROGER LUBOVICH, City Attorney SHANNON L. CORIN, City Clerk 26 of 206 Approved and executed this ___ day of , 2018 CITY OF BAINBRIDGE ISLAND APPROVED: APPROVED: ______________________________ _____________________________ MATTHEW HAMNER VAL TOLLEFSON Chief of Police Mayor Dated: ________________________ Dated: _______________________ APPROVED AS TO FORM: ATTEST: _____________________________ _____________________________ JOE LEVAN, City Attorney CHRISTINE BROWN, City Clerk 27 of 206 Approved and executed this ___ day of , 2018 SUQUAMISH TRIBE By: ____________________________ ____________________________ Title: __________________________ 28 of 206 Approved and executed this ___ day of , 2018 PORT GAMBLE S’KALLAM TRIBE By: ____________________________ ____________________________ Title: __________________________ 29 of 206 ATTACHMENT A KITSAP COUNTY RIDEALONG SERVICES AGREEMENT 30 of 206 ATTACHMENT A KITSAP COUNTY SHERIFF’S OFFICE – REALONG SERVICES AGREEMENT 31 of 206 32 of 206 33 of 206 34 of 206 35 of 206 36 of 206 37 of 206 38 of 206 39 of 206 40 of 206 41 of 206 42 of 206 43 of 206 44 of 206 45 of 206 46 of 206 47 of 206 48 of 206 49 of 206 50 of 206 51 of 206 52 of 206 53 of 206 54 of 206 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 4F Meeting Date: June 26, 2018 Subject: Approval of an Interlocal Agreement with Prepared by: Mark R. Dorsey, P.E. the Kitsap Conservation District for Low Public Works Director Impact Development and Water Quality Atty Routing No.: 012-18 Improvements Atty Review Date: June 19, 2018 Summary: In the interest of reducing costs associated with stormwater retrofit projects and generally improving water quality, the City of Port Orchard and the Kitsap Conservation District (KCD) intend to enter into an Interlocal Agreement (ILA) to work together to increase and promote Low Impact Development (LID) practices within City limits. This Agreement will increase opportunities for collaboration and resource pooling for City capital projects and will also aid private property owners within the City to improve Best Management Practices (BMP’s) for stormwater runoff. This Agreement may include, but is not limited to; design, materials, and/or installation services for rain gardens and bioretention facilities located within the City’s jurisdiction for both City and private projects. City projects will be managed and budgeted on a case-by case basis pending Council approval and private development projects will be managed separately from the City and conducted through KCD directly. Relationship to Comprehensive Plan: No relationship to the Comprehensive Plan. Recommendation: Staff recommends that the Council authorize the Mayor to execute an Interlocal Agreement (ILA) with the Kitsap Conservation District for Low Impact Development and Water Quality Improvements. Motion for consideration: I move to authorize the Mayor to execute an Interlocal Agreement (ILA) with the Kitsap Conservation District for Low Impact Development and Water Quality Improvements. Fiscal Impact: Funding as needed on a case-by case basis, pending City council approval. A Budget Amendment may be required. Alternatives: Do not authorize. Attachments: KCD Interlocal Agreement. 55 of 206 56 of 206 INTERLOCAL AGREEMENT 2018-2023 Between the City of Port Orchard and the Kitsap Conservation District Regarding Low Impact Development (LID) and Water Quality Improvement PREAMBLE This Interlocal Agreement (hereinafter “Agreement” or “ILA”) is by and between the City of Port Orchard (hereinafter “City”) and the Kitsap Conservation District (hereinafter “District”). RECITALS WHEREAS, the City is committed to preventing stormwater runoff pollution; and WHEREAS, the City and the District have a common goal to promote Best Management Practices to protect water quality, provide education to land owners on land use impacts, and support the use of Low Impact Development practices; and WHEREAS, the services proposed under this Agreement will promote improved water quality for local waterways and the mitigation of pollution impacts on fish and wildlife, including shellfish; and WHEREAS, the District’s contribution of services can assist the City in compliance with its NPDES (National Pollutant Discharge Elimination System) Municipal Stormwater Permit in the areas of runoff control, education/outreach, and stewardship, and with the Sinclair Inlet Fecal Coliform Bacteria TMDL (Total Maximum Daily Load) objectives; and WHEREAS, the Agreement allows the District to provide services within the City; and WHEREAS, a partnership between the City and the District supports resource pooling to provide more benefits at a lower cost; and WHEREAS, the District has the expertise and experience to aid property owners with land management activities and impacts to water quality; and WHEREAS, the City and the District desire to work collaboratively in providing information and services to property owners that will protect water quality; and WHEREAS, the City and the District desire to enter into an agreement that allows opportunities for collaboration on City capital projects, which may include design, materials, and/or installation services; and 57 of 206 WHEREAS, the Interlocal Cooperation Act, RCW 39.34, further authorizes the parties hereto to enter into this Agreement; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the City and the District agree as follows: AGREEMENT 1. SERVICES BY DISTRICT A. The type of work to be performed by the District on behalf of the City may include, but is not limited to, one or more of the following: technical assistance to land owners regarding land best management practices that protect water quality; services to property owners related to the feasibility, design and/or construction of low impact development practices; and provision of design, materials, and/or installation services for low impact development practices for City capital projects. B. Whenever the City desires to obtain work from the District, the City shall provide a detailed Scope of Work and make a request for said work to the District in writing. The District shall provide a detailed budget and schedule to the City in writing. The City shall notify the District, in writing, of its approval of the budget and schedule and indicate that the District shall proceed with the work. C. All services funded under this ILA shall be provided exclusively within the boundaries of incorporated City of Port Orchard. The District shall furnish all services, labor and related equipment to conduct and complete the work, except as specifically noted otherwise in this Agreement or in a Scope of Work. 2. PAYMENT The City shall reimburse the District only for actual incurred costs upon presentation of a properly executed invoice in a form approved by the City. Reimbursement requests shall be submitted once a quarter. The City reserves the right to withhold payments pending timely delivery of progress reports or documents as may be required under this Agreement. The City shall reimburse the District within sixty (60) days of receipt of a properly executed District invoice. 3. GENERAL ADMINISTRATION AND MANAGEMENT A. No separate legal entity is formed by this Agreement. The City Engineer, or designee, shall be the City's representative and shall oversee and approve all services to be performed, coordinate all communications, and review and approve all invoices under this Agreement. 58 of 206 B. The Chair of the Board of Supervisors for the Kitsap Conservation District, or his/her designee, shall represent the District in all matters pertaining to the services and materials to be rendered under this Agreement; all requirements of the City pertaining to the services or materials to be rendered under this Agreement shall be coordinated through the District’s representative. 4. REPORTING A. When applicable, and as defined in any Scope of Work, the District shall produce quarterly and year-end reports summarizing the work performed and evaluating the performance and results of the work performed pertaining to this Agreement. The report frequency and content shall be described in the Scope of Work. B. In general, reports may be required quarterly, annually, at project end, or at other specified intervals or milestones and may require, but not be limited to, the following information: a. Status of the work plan. b. A description of work performed during the period and progress made to date, including performance indicators that reflect effectiveness of any program elements set forth in the Scope of Work. c. Description of any adverse conditions that have affected the program objectives and/or time scheduled, and actions taken to resolve these issues. d. Supporting documentation, which may include, but not be limited to, graphics or other information which enhances the usefulness of the report. 5. INSPECTION AND AUDIT The District shall maintain all books, records, documents, and other evidence pertaining to the costs and expenses allowable under this Agreement in accordance with generally accepted accounting practices. All such books and records required to be maintained by this Agreement shall be subject to inspection and audit by representatives of the City and/or the Washington State Auditor at all reasonable times, and the District shall afford the proper facilities for such inspection and audit. Representatives of the City and/or the Washington State Auditor may copy such books, accounts, and records where necessary to conduct or document an audit. The District shall preserve and make available all such books of account and records for a period of five (5) years after final payment under this Agreement. If any audit or inspection identifies any discrepancy in such financial records, the District shall provide the City with appropriate clarification and/or financial adjustments within thirty (30) calendar days of notification of the discrepancy. 6. INDEPENDENT CONTRACTOR 59 of 206 A. The District and the City understand and expressly agree that the District is an independent contractor in the performance of each part of this Agreement. The District expressly represents, warrants, and agrees that its status as an independent contractor in the performance of the work and services required under this Agreement is consistent with and meets the six-part independent contractor test set forth in RCW 51.08.195. The District, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. The District shall make no claim of City employment nor shall claim any related employment benefits, social security, and/or retirement benefits. B. The District shall be solely responsible for paying all taxes, deductions, and assessments, including but not limited to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, the District shall pay the same before it becomes due. C. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the District performs hereunder. 7. DISCRIMINATION AND COMPLIANCE WITH LAWS A. The District 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, color, national origin, marital status, sex, sexual orientation, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. The District shall comply with all federal, state, and local laws and ordinances applicable to the work to be done under this Agreement. C. Violation of this Section 7 shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension by the City, in whole or in part, and may result in ineligibility for further work for the City. 8. TERM AND TERMINATION OF AGREEMENT A. This Agreement shall become effective upon execution by both parties and shall 60 of 206 continue in full force until December 31, 2023, unless sooner terminated by either party as provided below. B. This Agreement may be terminated by either party without cause upon thirty (30) days written notice to the other party. In the event of termination, all finished or unfinished documents, reports, or other material or work of the District pursuant to this Agreement shall be submitted to the City, and the District shall be entitled to just and equitable compensation as set forth in Section 2 for any satisfactory work/services completed prior to the date of termination. 9. HOLD HARMLESS AND INDEMNIFICATION A. The District agrees to protect, defend, indemnify, and hold harmless the City, its elected officials, officers, employees, and agents from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including reasonable attorneys’ fees and disbursements) caused by or occurring by reason of any negligent act, error and/or omission of the District, its officers, employees, and/or agents, arising out of or in connection with the performance or non-performance of the services, duties, and obligations required of the District under this Agreement. B. If the District and the City are both negligent, then the District’s liability for indemnification of the City shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs, and expenses (including reasonable attorneys’ fees and disbursements) that can be apportioned to the District, its officers, employees, and agents. 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 property caused by or resulting from the concurrent negligence of the District and the City of Port Orchard, its officers, officials, employees, and volunteers, the District’s liability, including the duty and cost to defend, hereunder shall be only to the extent of the District’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the District’s waiver of immunity under the 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. C. The foregoing indemnity is specifically and expressly intended to constitute a waiver of the immunity of the District under Washington’s Industrial Insurance Act, RCW Title 51, as respects the other parties only, and only to the extent necessary to provide the indemnified party with a full and complete indemnity of claims made by the employees of the District. The parties acknowledge that these provisions were specifically negotiated and agreed upon by them. 61 of 206 D. The City’s inspection or acceptance of any of the District’s work when completed shall not be grounds to avoid any of these covenants of indemnification. E. Nothing contained in this section of this Agreement shall be construed to create a liability or a right of indemnification in any third party. F. The provisions of this section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 10. INSURANCE The District shall maintain insurance for the duration of this Agreement as set forth in Exhibit A, attached hereto and incorporated herein by this reference. 11. SUBLETTING OR ASSIGNING CONTRACT The District shall not assign or subcontract any portion of the services provided within the terms of this Agreement without obtaining prior written approval from the City. If such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of the District as stated herein. 12. EXTENT OF AGREEMENT/MODIFICATION This Agreement, together with Exhibits or addenda, represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be amended, modified, or added to only by written instrument properly signed by both parties. 13. SEVERABILITY A. If a court of competent jurisdiction holds any part, term, or provision of this Agreement to be illegal or invalid, in whole or in part, the validity of the remaining provisions shall not be affected, and the parties’ rights and obligations shall be construed and enforced as if the Agreement did not contain the provision held to be invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict and shall be deemed modified to conform to such statutory provision. 14. FAIR MEANING The terms of this Agreement shall be given their fair meaning and shall not be construed in favor of or against either party hereto because of authorship. This Agreement shall be 62 of 206 deemed to have been drafted by both of the parties. 15. NON-WAIVER A waiver by either party hereto of a breach by the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay, or failure of either party to insist upon strict performance of any agreement, covenant, or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 16. NOTICES All notices required to be given by either party to the other under this Agreement shall be in writing and shall be given in person or by regular postal mail to the representatives and addresses set forth below. Notices may also be given by facsimile or email with the original to follow by regular mail. Notice will be deemed to be given three days following the date of mailing, or immediately if personally served. For service by facsimile or email, service will be effective at the beginning of the next working day. Either party may change its representative and/or address upon providing written notice to the other party. Kitsap Conservation District City of Port Orchard 10332 Central Valley Road 216 Prospect St. Port Orchard, WA 98370 Port Orchard, WA 98366 Attention: Albert Allpress, Chair, Board of Supervisors Attention: Mark R. Dorsey, P.E., Public Works Director/City Engineer Phone: (360) 204-5529 Phone: (360) 876-4991 Fax: (360) 204-5519 Fax: (360) 876-4980 17. SURVIVAL Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. 18. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 19. VENUE The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Kitsap County, Washington. 63 of 206 64 of 206 Exhibit A. Professional Services Agreement Indemnification and Insurance Requirements INSURANCE The District 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 District, its agents, representatives, or employees. NO LIMITATION District’s maintenance of insurance as required by the agreement shall not be construed to limit the liability of the District to the coverage provided by such insurance, or otherwise limit the City of Port Orchard’s recourse to any remedy available at law or in equity. MINIMUM SCOPE OF INSURANCE District shall obtain at no cost to the city and maintain said insurance in force for the duration of this agreement, insurance of the types described below: 1. 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. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01, or a substitute form providing equivalent liability coverage and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named by endorsement as an additional insured under the District’s Commercial General Liability insurance policy with respect to the work performed for the City of Port Orchard. 3. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Professional’s profession. MINIMUM AMOUNTS OF INSURANCE District shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Employer’s Liability each accident $1,000,000, Employer’s Liability Disease-each employee $1,000,000, and Employer’s Liability Disease - Policy Limit $1,000,000. 65 of 206 4. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: 1. The District’s insurance coverage shall be primary insurance as respect the City of Port Orchard. Any insurance, self-insurance, or insurance pool coverage maintained by the City of Port Orchard shall be excess of the District’s insurance and shall not contribute with it. 2. The City of Port Orchard will not waive its right to subrogation against the District. The District’s insurance shall be endorsed to waive the right of subrogation against the City of Port Orchard, or any self-insurance, or insurance pool coverage maintained by the City of Port Orchard. 3. The District’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 of Port Orchard. 4. If any coverage is written on a “claims made” basis, then a minimum of a three (3) year extended reporting period shall be included with the claims made policy, and proof of this extended reporting period provided to the City of Port Orchard. ACCEPTABILITY OF INSURERS Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII, licensed to conduct business in the State of Washington. VERIFICATION OF COVERAGE District shall furnish the City of Port Orchard 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 District before commencement of the work. 66 of 206 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 7A Meeting Date: June 26, 2018 Subject: Adoption of an Ordinance Adopting the Prepared by: Nicholas Bond, AICP Revised Exhibit A to the Interim DCD Director Self-Storage Facilities Ordinance Atty Routing No.: 052-18 Atty Review Date: June 15, 2018 Issue: On April 24, 2018, the Council adopted an interim self-storage facilities ordinance and overlay map (Ordinance 015-18) that designates limited areas in which new self-storage facilities can be developed, effective for a period of twelve months. Corresponding changes to the land use table in POMC 20.46.030 were made to distinguish between indoor and outdoor storage, with the latter being restricted to the Employment Industrial and Office zone for the duration of the interim ordinance. The interim ordinance also amended provisions related to self-storage as an accessory use to residential uses, by only allowing self- storage as an accessory use to larger residential projects and by limiting the size of self-storage facilities as an accessory use. Subsequently, the City Council proposed to adopt a revised interim self-storage ordinance which corrects Exhibit A by indicating that self-storage is a permitted use instead of a conditional use in the Employment Industrial & Office zone (see revised Exhibit A, attached). On June 5, 2018, the Planning Commission held a public hearing on the interim ordinance with the proposed revisions and voted unanimously to recommend that Council adopt the interim self-storage regulations with the revision to Exhibit A as presented. Relationship to Comprehensive Plan: Policy LU-6 Ensure adequate land is available for light industrial and commercial uses, including high technology, medical, and office uses, in appropriate areas to diversify Port Orchard’s economic base and provide for the community’s changing needs. Policy LU-10 In consultation with stakeholders and the general public, develop a comprehensive strategy to implement local centers of importance as a means of directing residential and commercial growth. Policy CN-1 Prioritize the City’s residential, commercial and light industrial growth and infrastructure investments within designated Centers, in accordance with VISION 2040 and the Countywide Planning Policies. Policy CN-4 Provide commercial services that serve the population of the Center, surrounding neighborhoods, the city, and the region (dependent on the suitability of the scale of each Center). Policy ED-6 The City shall encourage residential and commercial growth in mixed-use local centers where job opportunities and a diverse mix of retail and office activities are concentrated. 67 of 206 Policy ED-34 Encourage the full utilization and development of designated commercial and industrial areas. Promote revitalization and redevelopment within existing developed areas to take advantage of investments in existing buildings and infrastructure. Recommendation: Staff recommends that the City Council vote to approve an ordinance adopting the revised Exhibit A to the interim self-storage facilities ordinance, as presented. Motion for Consideration: “I move to approve an ordinance adopting the revised Exhibit A to the interim self-storage facilities ordinance, as presented.” Fiscal Impact: This proposal is not expected to impact the City’s budget. Alternatives: Do not revise Exhibit A. Attachments: Ordinance; Revised Exhibit A of Interim Self-Storage Facilities Ordinance. 68 of 206 ORDINANCE NO. _____ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AMENDING THE INTERIM ZONING ORDINANCE ON SELF-STORAGE USES; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, on April 24, 2018, pursuant to Section 36.70A.390 of the Revised Code of Washington, the City Council adopted an interim zoning ordinance relating to self-storage facilities in Port Orchard (“Ordinance 015-18”); and WHEREAS, it has been determined that Exhibit A to Ordinance 015-18, which amended Table 20.46.030 (“Government/business services land uses”), incorrectly identifies “Self-Service Storage – Outdoor” as a conditional, rather than a permitted, use in the “Employment, Industrial and Office” zone; and WHEREAS, the City Council desires to amend Exhibit A to Ordinance 015-18 to correctly identify “Self-Service Storage – Outdoor” as a permitted use in that zone; WHEREAS, on June 5, 2018, the City Planning Commission held a public hearing on the interim self-storage zoning ordinance, and recommended that the City Council adopt the amendment to Exhibit A to Ordinance 015-18 as proposed; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. Exhibit A – Table 20.46.030 (“Government/business services land uses”) Amended. Exhibit A to Ordinance 015-18 is hereby amended to identify “Self-Service Storage – Outdoor” as a permitted use in the “Employment, Industrial and Office” zone, as set forth in the attached Amended Exhibit A. SECTION 2. 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 3. Publication. This Ordinance shall be published by an approved summary consisting of the title. SECTION 4. 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 26th day of June 2018. 69 of 206 Robert Putaansuu, Mayor ATTEST: SPONSOR: Brandy Rinearson, MMC, City Clerk Shawn Cucciardi, Councilmember APPROVED AS TO FORM: Sharon Cates, City Attorney PUBLISHED: EFFECTIVE DATE: 70 of 206 20.46.030 Table 20.46.030 – Government/business services land uses. P = Permitted C = Conditional Greenb elt Resident ial – Mobile Home Park Resident ial – 4.5 Units/Ac re Resident ial – 8.0 Units/Ac re Resident ial – 8.0 Units/Ac re MWD Resident ial – 12.0 Units/Ac re Resident ial – 20.0 Units/Ac re Commerc ial Retail and Office Business Professio nal I Business Professio nal II Mixe d Use s Employm ent Industrial and Office Commun ity Facilities Gb RMH R4.5 R8 R8- MWD R12 R20 Co BP I BP II Mxd Eo Cf Government Services * Public agency office C P P C P P * Public agency yard P P * Public agency archives P P P P 921 Court P 922 1 Police facility P 922 4 Fire facility P 71 of 206 P = Permitted C = Conditional Greenb elt Resident ial – Mobile Home Park Resident ial – 4.5 Units/Ac re Resident ial – 8.0 Units/Ac re Resident ial – 8.0 Units/Ac re MWD Resident ial – 12.0 Units/Ac re Resident ial – 20.0 Units/Ac re Commerc ial Retail and Office Business Professio nal I Business Professio nal II Mixe d Use s Employm ent Industrial and Office Commun ity Facilities Gb RMH R4.5 R8 R8- MWD R12 R20 Co BP I BP II Mxd Eo Cf * Subregional utility C C C C C C C C C C P * Minor communications facility P2 P2 P2 P2 P2 P2 P2 P2 P2 P2 P2 P P Business Services 15- 17 Construction and trade P3 P3 P3 P * Individual transportation and taxi P3 P 421 Trucking and courier service C4 P3 C4 P * Warehousing C P 72 of 206 P = Permitted C = Conditional Greenb elt Resident ial – Mobile Home Park Resident ial – 4.5 Units/Ac re Resident ial – 8.0 Units/Ac re Resident ial – 8.0 Units/Ac re MWD Resident ial – 12.0 Units/Ac re Resident ial – 20.0 Units/Ac re Commerc ial Retail and Office Business Professio nal I Business Professio nal II Mixe d Use s Employm ent Industrial and Office Commun ity Facilities Gb RMH R4.5 R8 R8- MWD R12 R20 Co BP I BP II Mxd Eo Cf and wholesale trade * Self-service storage – Indoor including but not limited to mini- storage C5 C5 C12 P12 Self-service Storage – Outdoor including but not limited to the storage of RVs, Boats, and Vehicles C P 73 of 206 P = Permitted C = Conditional Greenb elt Resident ial – Mobile Home Park Resident ial – 4.5 Units/Ac re Resident ial – 8.0 Units/Ac re Resident ial – 8.0 Units/Ac re MWD Resident ial – 12.0 Units/Ac re Resident ial – 20.0 Units/Ac re Commerc ial Retail and Office Business Professio nal I Business Professio nal II Mixe d Use s Employm ent Industrial and Office Commun ity Facilities Gb RMH R4.5 R8 R8- MWD R12 R20 Co BP I BP II Mxd Eo Cf 422 1 Farm product warehousing P 422 2 Farm product refrigeration and storage P * Log storage 44 Water transportation of passengers P8 P8 P8 P8 47 Transportation service P3 P3 P3 P 48 Communication offices P3 P3 P3 P3 P * General P P10 P10 P P 74 of 206 P = Permitted C = Conditional Greenb elt Resident ial – Mobile Home Park Resident ial – 4.5 Units/Ac re Resident ial – 8.0 Units/Ac re Resident ial – 8.0 Units/Ac re MWD Resident ial – 12.0 Units/Ac re Resident ial – 20.0 Units/Ac re Commerc ial Retail and Office Business Professio nal I Business Professio nal II Mixe d Use s Employm ent Industrial and Office Commun ity Facilities Gb RMH R4.5 R8 R8- MWD R12 R20 Co BP I BP II Mxd Eo Cf business service * Professional office P P P P P 731 2 Outdoor advertising service P3 P3 P 735 Miscellaneous equipment rental C P 751 Automotive rental and leasing P P 752 Automotive parking C C P9 C C C P P 794 Professional P3 P10 P3 P3 P 75 of 206 P = Permitted C = Conditional Greenb elt Resident ial – Mobile Home Park Resident ial – 4.5 Units/Ac re Resident ial – 8.0 Units/Ac re Resident ial – 8.0 Units/Ac re MWD Resident ial – 12.0 Units/Ac re Resident ial – 20.0 Units/Ac re Commerc ial Retail and Office Business Professio nal I Business Professio nal II Mixe d Use s Employm ent Industrial and Office Commun ity Facilities Gb RMH R4.5 R8 R8- MWD R12 R20 Co BP I BP II Mxd Eo Cf 1 sport teams/promoters 873 Research, development and testing P1 P11 P1 P P * Heavy equipment and truck repair P * Commercial/indu strial accessory uses P6 P6 P * Helipad C C C P7 Note: All applicable requirements of this title, or other applicable state or federal requirements, shall govern a use located within the Port Orchard incorporated area in addition to those described in the notes following. 76 of 206 1. Only SIC industry numbers 8732 and 8734 – Commercial economic, sociological and education research. 2. Subject to conditional approval when the tower or antenna support will exceed the height limits of the underlying zone. 3. Limited to office use, no staging or overnight parking of vehicles or equipment. 4. Limited to SIC industry number 4215 – Courier services, except by air. 5. Accessory to a multifamily development of at least 20 units provided: a. The gross floor area in the self-service storage shall not exceed 20% of the total gross floor area of the multifamily dwellings. b. All outdoor lights shall be deflected, shaded, and focused downward away from all adjoining property. c. The use of the facility shall be limited to the occupant’s household goods. d. No servicing or repair of motor vehicles, boats, trailers, lawn mowers or similar equipment. e. No outdoor storage or storage of flammable liquids, highly combustible or explosive materials or hazardous chemicals. f. No residential occupancy of the storage units. g. No business activity other than rental of storage units by occupants. h. A resident shall be required on the site and shall be responsible for maintaining the operation of the facility in conformance with the conditions of approval. 6. Storage limited to accessory storage of commodities sold at retail on the premises or materials used in the fabrication of commodities sold on the premises. 7. Limited to emergency medical evacuation sites in conjunction with police, fire, health or public service facility. 77 of 206 8. Subject to conditional approval when additional parking is required. 9. A conditional use permit is required if proposed within the downtown overlay district, or if a parking structure is proposed. 10. Permitted uses within SIC code are subject to provisions identified below: a. SIC codes 7311 through 7313, 7319, 7323, 7336, 7338, 7371 through 7376, and 7379 are permitted uses, limited to office, desktop design, and desktop graphic work. All other activities must be off site. No on-site retail sales. b. SIC codes 7322, 7363 and 7383 are limited to office activities only. 11. Limited to nondestructive testing. 12. Permitted only on sites as designated for Self-Storage Use on the Self-Storage Overlay Map as attached to Ordinance 18-XXX. The Self-Storage use must be allowed in the zone and in the overlay in order to be permitted. 78 of 206 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 7B Meeting Date: June 26, 2018 Subject: Adoption of an Ordinance Adopting Prepared by: Nicholas Bond, AICP Revisions to Port Orchard Municipal Code DCD Director Title 12 for Consistency with Resolution Atty Routing No.: 044-18 No. 030-17 Administrative Fee Schedule Atty Review Date: May 15, 2018 Issue: In May 2017, the City Council approved the City’s current administrative fees for the departments of Community Development and Public Works (Resolution 030-17). City staff have become aware that several sections of Title 12 POMC (Streets and Sidewalks) which set forth fee assessments are inconsistent with the current method the City uses to assess fees, per Resolution 030-17. It is therefore proposed to revise these sections of Title 12 for consistency with the City’s current administrative fee schedule. Relationship to Comprehensive Plan: N/A Recommendation: Staff recommends that the City Council vote to adopt an ordinance adopting the revisions to Title 12 POMC, as presented. Motion for consideration: “I move to adopt an ordinance adopting the revisions to Title 12 POMC, as presented.” Fiscal Impact: This proposal is not expected to impact the City’s budget. Alternatives: Do not revise Title 12 POMC; or direct staff to prepare further revisions to Title 12 POMC. Attachments: Ordinance and Resolution 030-17. 79 of 206 80 of 206 ORDINANCE NO. ___ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ADOPTING REVISIONS TO TITLE 12 OF THE PORT ORCHARD MUNICIPAL CODE; PROVIDING FOR SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, most of the City’s fees are set in a fee schedule resolution rather than being codified in various code sections, so that the City’s fees can easily be studied and updated as required; and WHEREAS, some fees and fee policies as found in Title 12 of the Port Orchard Municipal Code are listed in code while also appearing in the City’s fee schedule resolution; and WHEREAS, in May 2017 the City Council approved the City’s current administrative fees for the departments of Community Development and Public Works, as set forth in Resolution 030-17; and WHEREAS, the City has become aware that several sections of Title 12 POMC (Street and Sidewalks) do not correctly reflect the method used by the City to assess these fees as approved by Resolution 030-17, and WHEREAS, the City Council wishes to revise these sections of Title 12 for consistency with Resolution 030-17, h THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council adopts all of the “Whereas” sections of this ordinance as findings in support of this ordinance. SECTION 2. Section 12.04.140 POMC is revised to read as follows: 12.04.140 Permit fee – Inspection. The fee for such permit for any excavation, as defined in POMC 12.04.010, and for the time consumed by city employees for the determination of other utilities and mains in the area to be affected, to approve the site, to inspect the actual excavation or tunneling, to inspect the material and methods used in the backfill and to approve the finished work and record it in the as-built plans maintained by the city, shall be as established in the City’s current fee resolution; however, if the excavation is other than routine and requires performance of services or incurrence of expense by the city over and above that set forth or contemplated in the basic fee, such extra services along with the actual cost of materials, supplies and attendant handling or transportation charges to the city, if any, shall be charged to and paid by the permittee over and above the fee hereinabove set forth. 81 of 206 SECTION 3. Section 12.04.170 POMC is revised to read as follows: 12.04.170 Notice of completion – Delay. Such permit shall be issued in triplicate and one copy thereof shall be forthwith filed with the chief of police, and one copy with the clerk, who shall also be notified when the street, alley or other improvements shall be restored to their former condition as required by this chapter. Immediately upon the completion of the acts or work allowed under such permit, written notice thereof shall also be given to the superintendent of public works by the permittee. SECTION 4. Section 12.24.160 POMC is revised to read as follows: 12.24.160 Permit fees. (1) From time to time, the director shall prepare and recommend for adoption by the city council a schedule of fees applicable to: reviewing and administering all permits for public places. (a) Fees for using or occupying the public place may take into consideration the undesirability of the use or occupation relative to the rights of the public, such as the city policy of discouraging certain types of encroachments inconsistent with the public right of access, including access to the shorelines or other public places, and shall be included in the schedule of fees for use of public places under the jurisdiction of the director. (b) The director is authorized to collect a monetary deposit for services to be conducted related to the review or inspection of a permit prior to or at permit issuance. (c) The director is authorized to collect fees for other city departments that provide services related to the review of a permit for use of the public place. (2) The City’s current fee resolution shall govern the fee for permits issued and reviewed. All permit and review fees shall be commensurate with the cost of administering, inspecting, and policing involved in issuing and continuing the permits and with the use and occupation granted by the permits. The fee shall be collected as a condition to issuing or continuing any permit or use. SECTION 5. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section, sentence, clause or phrase of this ordinance. SECTION 6. Corrections. Upon the approval of the city attorney, the city clerk and/or code publisher is authorized to make any necessary technical corrections to this ordinance, including but not limited to the correction of scrivener’s/clerical errors, references, ordinance numbering, section/subsection numbers, and any reference thereto. SECTION 7. Effective Date. This ordinance shall be published in the official newspaper of 82 of 206 the city and shall take full force and effect five (5) days after the date of publication. A summary of this ordinance in the form of the ordinance title may be published in lieu of publishing the ordinance in its entirety. 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 26th day of June 2018. Robert Putaansuu, Mayor ATTEST: Brandy Rinearson, MMC, City Clerk APPROVED AS TO FORM: SPONSOR: Sharon Cates, City Attorney Jay Rosapepe, Councilmember PUBLISHED: EFFECTIVE DATE: 83 of 206 84 of 206 RESOLUTION NO. 030-17 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON REPEALING RESOLUTION NO. 007-17 AND ESTABLISHING FEE SCHEDULES FOR THE DEPARTMENTS OF COMMUNITY DEVELOPMENT AND PUBLIC WORKS WHEREAS, the City of Port Orchard is responsible for implementing land use regulations, planning and public works requirements, administering the building code, and other administrative duties; and WHEREAS, there are costs associated with the implementation of city regulations and policies; and WHEREAS, the City's current Planning and Public Works Department administrative fees were adopted in December 2016 as set forth in Resolution No. 007-17; and WHEREAS, the City Council deems it in the best interest of the City of Port Orchard to periodically review and update the City's administrative fees; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON HEREBY RESOLVES AS FOLLOWS: Resolution No. 007-17 is hereby repealed in its entirety.1. The fees that will be charged by the City Community Development and Public Works Departments and Clerk's Office for the specified services and permits are listed in Exhibit "A". 2. The City Council authorizes the refund of any $400 Tent and Membrane Structure permit fees paid between December 1, 2016 and May 23, 2017. 3. Fees not listed in Exhibit "A" will be determined by the City Council.4. The fees listed in Exhibit "A" shall take effect on May 26, 2017.5. 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 23rd day of May, 2017. H SEALj "ATTEST:| Robert Putaansuu, Mayor BrandfRinearson, City Clerk 85 of 206 Resolution No. 030-17 Page 2 of 16 Exhibit A to Resolution 030-17 A. General 1. No permit shall be issued, application accepted, service provided, or appeal filed without payment of the applicable fee set forth below. 2. References to the director refer to the director of the Department of Community Development or his/her designee. 3. When an application includes the submittal of special reports and/or plans such as habitat management plans, geotechnical reports, or traffic impact analyses requiring review beyond the capabilities of city staff, the applicant shall be required to pay the actual cost of 3rd party review by qualified consultants under contract with the city. Upon determining that 3rd party review of special reports or plans is required, the city will obtain a fee estimate from its consultant and provide that estimate to the applicant and request payment to the city. 4. Some projects require more than one permit. In some cases a project will require the payment of numerous fees from the tables below. 5. Each building, plumbing, mechanical, planning and land use, and public works permit/department review fee shall be assessed a technology fee surcharge of $10.00 to cover the cost of the purchase and ongoing maintenance of the City's SMARTGov permitting system which was put into use in November of 2014. 6. No additional inspections, including final inspections, will be scheduled or performed until all outstanding fees are paid. 7. Refunds: The hourly rate used to calculate a deduction to a refund shall be $75 per hour. a. Building Permit fees: Refunds shall be issued at an amount equal to the permit fee less actual time and materials spent on the project; provided no refund shall exceed 80% of the initial permit fee for a permit that was issued by the City. If the permit fee was paid and a refund was requested prior to permit issuance, 100% of the permittee may be refunded. b. Plan Review Fees: If an application is withdrawn, cancelled or returned prior to issuing a building permit, a refund shall be issued to an amount equal to the plan review fee less actual time and materials spent on the project, provided no refund shall exceed 80% of the plan review fee. Plan review fees are non-refundable once the plan review has been completed or if the permit has been issued. c. Other Permit/Application fees: Refunds for Land Use permits and other permit application types may be authorized by the director. Refunds shall be issued at an amount equal to the permit fee less actual time and materials spent on the project; provided no refund shall exceed 80% of the initial permittee. 8. All recording fees for approvals issued by the city shall be paid by the applicant. B. Building, Plumbing, and Mechanical Fee Policies 1. Failure to pay established fees may result in one or more of the following: • Per Section 109.4 of the IBC, any person who commences any work on a building, structure, electrical, gas, mechanical or plumbing system before obtaining the necessary 86 of 206 Resolution No. 030-17 Page 3 of 16 permits shall be subject to an additional fee equal to the required permit cost in addition to the underlying permit costs. • No temporary or final certificate of occupancy will be approved or issued for a project with any outstanding fees on any permit associated with the project. Some signs require a building permit in addition to a land use (sign) permit. In these instances, the permit fees are additive meaning that an applicant may be required to obtain a sign permit and a building permit. Minor revisions to plans which were previously reviewed and approved by the city shall be reviewed at a cost of $75 per hour with a minimum of 1 hour billed. Valuation for Table 1 shall be determined using the IBC Building Valuation Data Table (BVD) (currently the August 2016 table as attached hereto) except as noted in the BVD Table and when otherwise noted in Tables 2 and 3. Per 2015 IBC 109.3, the applicant for a permit shall provide an estimated construction value at the time of application. The amount shall include the fair market value of any donated, contributed or found labor and/or materials. Single family home builders who wish to reuse a plan set to construct more than one home using the same plan set may do so by utilizing a "basic plan" review process. When an applicant wishes to establish a basic plan set for reuse, the plans shall initially be reviewed upon payment of the city's standard plan review fee. Once plan review is complete and if the City finds that the plans conform to the requirements of the Building Code, the plans shall be approved as a basic plan set and marked as such for reuse. For each use of the plan, the applicant shall pay a reduced plan review fee as established in Table 3 in lieu of the full plan review fee. The use of an approved basic plan set shall have no effect on the building permit fee (only the building permit plan review fee). Plans may not be reused if the city's building code has been updated unless the plans have been re-reviewed (upon payment of the full plan review fee) and approved for conformance with the updated building code. 2. 3. 4. 5. 6. TABLE 1: FEES (Permit Fee = 100% Plan Review Fee = 65%)Total Valuation $1 to $500 $26.00 $26.00 for the first $500 plus $3.00 for each additional $100, or fraction thereof, to and including $2,000______________$501 to $2,000 $69.00 for the first $2,000 plus $11.00 for each additional $1,000, or fraction thereof, to and including $40,000$2,001 to $40,000 $487.00 for the first $40,000 plus $9.00 for each additional $1,000, or fraction thereof, to and including $100,000$40,001 to $100,000 $1,027.00 for the first $100,000 plus $7.50 for each additional $1000, or fraction thereof, to and including $500,000___________________________________$100,001 to $500,000 $3,827.00 for the first $500,000 plus $5.00 for each additional $1,000, or fraction thereof, to and including $ 1,000,000__________________________________$500,001 to $1,000,000 87 of 206 Resolution No. 030-17 Page 4 of 16 $6,327.00 for the first $1,000,000 plus $3.00 for each additional $1,000, or fraction thereof, to and including $5,000,000 _______________________________$1,000,001 to $5,000,000 $18,327.00 for the first $5,000,000 plus $1.00 for each additional $1,000, or fraction thereof__________$5,000,001 and up TABLE 2: Residential Single Family Unit of MeasureBuilding Permit Type Amount $82.95 square footFinish an existing basement $59.79 square footConversion of an existing garage to residential space $13.04 square footNew, repair, or alteration or addition to deck, uncovered $13.04 square footNew Foundation only or under existing structure $38.16New garage, shed, barn, or pole building (attached or detached)square foot $21.07 square footCovered porch, covered deck; new, alteration, repair, or cover added New, remodel, or repairs to freestanding roof structures and carports, other than porch or deck____________________________________$21.07 square foot $19.67 square footResidential Interior Remodel TABLE 3: Miscellaneous: Unit of MeasureBuilding Permit Code Amount Per Linear Foot$118Shoreline bulkhead walls $65 EachDemolition Per Linear Foot$11.74Fences over 6 feet in height Per Linear Foot$19.67Retaining walls $65 EachRe-inspection Apply Construction Value to Table 1 Construction value (contract or materials x 2)Fire Alarm, new or alterations to existing Apply Construction Value to Table 1 Construction value (contract or materials x 2)Fire Sprinkler, new or alterations to existing 88 of 206 Resolution No. 030-17 Page 5 of 16 Apply Construction Value to Table 1 Construction value (contract or materials x 2)Fire Suppression System Apply Construction Value to Table 1 Construction value (contract or materials x 2)Tank: Underground or Above Ground, Installation or Removal $65 EachTemporary Tent & Membrane Structures $65 EachPyrotechnics Special Effects $90 Per 100 SQ FTRoof: Hot Mop/Cold Mop (flat roof) $70 Per 100 SQ FTRoof: Composition, Metal $140 Per 100 SQ FTRoof: Wood Shake $140 Per 100 SQ FTRoof: Concrete, Tile, Slate $90 Per 100 SQ FTRoof: Torch Down Apply Construction Value to Table 1 Construction value (contract or materials x 2)Residential Misc. Apply Construction Value to Table 1 Construction value (contract or materials x 2)Commercial Tenant Improvement and Misc. Certificate of Occupancy for new business only; All other C of O included in building permit fee.____________________________________________ Manufactured or mobile home placed on lot or first time placement in MH park________________________________________________________ $65 Each $130 Each $65 EachManufactured or mobile home replacement in MH park 50% of original feePermit Renewal Each $65Posted Stop Work occurrence Apply Construction Value to Table 1 Construction value (contract or materials x 2)Sign (when a building permit is required) $100 EachCarport or Canopy, pre-fab kit installation $70 per 100 SQ FTSiding or Re-siding Solar energy/photovoltaic panel system roof mounted install per WAC 51-51­ 2300 Sec. M2302 $135 Each $225 EachSingle Family Residential plan review using a basic plan on a site specific lot Apply Construction Value to Table 1 Construction value (contract or materials x 2)Windows or Doors 89 of 206 Resolution No. 030-17 Page 6 of 16 Plumbing Permit Fees Plumbing permit fees shall be calculated using the commercial and residential schedules in Tables 4 and 5 below. TABLE 4: Commercial Plumbing Permit FeesiCommercial Plumbing Fixtures PerFee Flat $23.50Base Fee Applied to All Plumbing Permits Fee $9.80 EachBackflow protective device 2 inches or less Backflow protective device larger than 2 inches| $15.00 Each $9.80 EachClothes Washing Machine $9.80 EachDish Washer; Drainage Pipe or Vent Pipe Repair or Alteration $9.80 Each $9.80 EachDrinking Fountain $9.80 EachFloor Drain $1.00 EachHose Bibbs, each $9.80Industrial/Sand Oil Interceptor Each $9.80 EachGrease Interceptor $9.80 EachLawn Sprinkler System with Backflow Device $9.80Medical Equipment / Kidney Machine Each Medical Gas, each additional outlet in excess of first 5 $5.00 Each $50.00 EachMedical gas system up to 5 outlets $9.80 EachMisc. plumbing fixtures not specifically listed $9.80 EachMisc. Plumbing fixtures on one trap $9.80 EachRoof Drain $9.80 EachSink (Lavatory, Kitchen, Mop, or Bar Sink) $9.80Floor Sink and /or Indirect Waste Each $9.80 EachMulti - Compartment Sink $9.80Shampoo Sink w/interceptor Each $9.80 EachToilet, Water Closet. Bidet, or Urinal $9.80 EachTub and/or Shower $9.80 EachWater Heater $9.80 EachWater Pipe Repair and/or Alteration 90 of 206 Resolution No. 030-17 Page 7 of 16 TABLES: Residential Plumbing Permit Fees Residential Plumbing Fixtures PerFee $23.50Base Fee applied to all Plumbing Permits Flat Fee $7.00Clothes Washer Each $7.00Dishwasher Each $7.00Floor Drain Each $1.00Hose Bibb Each $14.80HotTub Each $7.00Lawn Sprinkler with backflow preventer Each $7.00Misc. plumbing fixtures not specifically listed Each $7.00Sink (Lavatory, Kitchen, Mop)Each Tub and/or shower $7.00 Each $7.00Toilet, Bidet or Urinal Each $7.00 EachWater Heater Mechanical Permit Fees Mechanical permit fees shall be calculated using the commercial and residential schedules in Tables 6 and 7 below. TABLE 6: Commercial Mechanical Permit Fees Commercial Mechanical Fixtures PerFee Flat $23.50Mechanical Permit Base Fee Fee $14.80Air-Handling Unit < 10,000 CFM Each $18.10 EachAir-Handling Unit > 10,000 CFM $10.65Class 1 Hood & Duct Systems Each $10.65Class 2 Hood & Duct Systems Each $10.65Clothes Dryer with exhaust Each $14.70 EachCompressors $10.65 EachCook stove with exhaust $13.70 EachDucting Change without New Furnace $10.65 EachEvaporative Coolers, permanently installed $7.25Fan for Bath and/or Exhaust Fan Each $14.80Commercial Furnace & Ducting < 100,000 btu Each $18.20 EachCommercial Furnace & Ducting > 100,000 btu $35.45Combo Gaspipe / Water Heater / Furnace Each $2.00Fuel System Outlets in excess of the first 4 Each $10.65Fuel Pipe System LPG, Natural Gas, OIL (first 4 outlets)Each $10.65Miscellaneous Mechanical Equipment Each $10.65 EachMechanical System Pumps (Misc) $10.65Radiant Heat Units (wall, ceiling, floor, recessed, etc.)Each $14.80 EachUnit Heater Suspended or Floor Mount 91 of 206 Resolution No. 030-17 Page 8 of 16 $10.65 EachGas Water Heater Vent & Combustion Air 10.65 EachPropane tank over 2000 gallons TABLE 7: Residential Mechanical Permit Fees Residential Mechanical Fixtures Fee Per Flat $23.50Base Fee applied to all Mechanical Permits Fee $7.25 EachBath Fan and or Exhaust Fan $10.65 EachClothes Dryer w/exhaust $10.65Cook Stove w/exhaust EachI$14.80Furnace Electric / Heat Pump/AC +/- ducting Each $12.00 EachFireplace - Gas or Gas log inserts $12.00 EachFireplace - Wood or Wood Stove $14.80Furnace Propane +/-Ducting Each $10.65 EachGas WH Vent and Combustion Air $10.00 EachFuel Pipe System LPGy Natural Gas, Oil $10.65 EachMisc. Mechanical Equipment $14.80Furnace Natural Gas +/- Ducting Each $14.80Propane Furnace +/- Ducting Each $10.65 EachPropane Fuel Tank Under 2000 Gallons C. Planning and Land Use Fees The planning and land use permit fees listed in the tables below shall be paid at the time an application is submitted to the city unless otherwise specified. Fees are based on an hourly rate of $75.00. TABLE 8: Subdivision POMC Title 26 $1,100Short Subdivision Application Short Subdivision - Submission of Final Short Subdivision for Review and Approval______$600 $500Short Subdivision Amendment $500Final Short Subdivision Alteration $2,000 plus Hearing Examiner FeePreliminary Subdivision Plats 5-20 lots $2,000 + $50 Per Lot plus Hearing Examiner FeePreliminary Subdivisions Plats 21+ Lots $500 plus associated Preliminary Subdivision Plat Fee Planned Residential Development Review per POMC 16.13.190 $500Minor Revisions to a Preliminary Plat $200Boundary Line Adjustment $1,000 + 50 Per LotFinal Plat $1,100Preliminary Binding Site Plan $500Binding Site Plan Alteration 92 of 206 Resolution No. 030-17 Page 9 of 16 $600Final Binding Site Plan Vacation and Alteration of Final Plats and Final Binding Site Plans $2,000 plus Hearing Examiner Fee TABLE 9: SEPA Project Checklist Review and Threshold Determination $300 Non-Project Checklist Review and Threshold Determination $300 Actual Cost, See SEPA Ord.Environmental Impact Statement Preparation Actual Cost, See SEPA Ord.Environmental Impact Statement Review $450SEPA Appeal Fee* TABLE 10: Shoreline Permits Administrative Shoreline Substantial Development Permit $600 $900 plus Hearing Examiner FeeShoreline Substantial Development Permit $150Shoreline Exemption (Letter) $1,275 plus Hearing Examiner FeeShoreline Conditional Use Permit Administrative Shoreline Conditional Use Permit $600 $1,275 plus Hearing Examiner FeeShoreline Variance $600Administrative Shoreline Variance TABLE 11: Land Use Permits $600Administrative Conditional Use Permit $1,275 plus Hearing Examiner FeeConditional Use Permit $150Temporary Use Permit $150Temporary Use Permit Extension $600Variance Administrative $1,275 plus Hearing Examiner FeeVariance $1,275 plus Hearing Examiner feeVariance, View Protection Overlay District $100View Protection Overlay District Exemption $l,275plus Hearing Examiner feeRezone (without Comp Plan Amendment) 93 of 206 Resolution No. 030-17 Page 10 of 16 See Fee Policy in Critical Areas Code (currently 18.14.020) (to be renumbered 20.162 Article 8 Section 040).Critical Areas Code Special Reports Review Critical Areas Code Reasonable Use or Public $1,275 plus hearing examiner feeAgency Exceptioni $150Critical Area Exemption $1,275 plus hearing examiner fee.Critical Areas Variance TABLE 12: Other Review Request for a statement of restrictions per RCW 35.21.475 $75 $75 minimum, an additional deposit may be required if city attorney review is required, any city attorney expenses related to an application for an administrative application shall be paid by the applicant prior to issuance of a decision i l Administrative Interpretation (POMC 23.40.030)_____________________ $150 (100% is credited to a land use application if filed within 12 months)Pre-Application Meeting $1,000 Deposit, which will be applied to the city's costs including city attorney fees regardless of whether a development ________________agreement is approvedDevelopment Agreements $500Comp Plan Amendment (Text) $1,875Comp Plan Amendment (Map) $300Forest Practices Application (Local Approval) $225Landscape Plan Review Minor Landscape Plan Review Major (Subdivisions with more than 20 lots, Developments larger than 20,000 square feet in area)$600 $450Other Appeal Fee* $1,500.00Tax Abatement Exemption Application * Any appeal statement must be filed on the deadline established in the City's code relating to the specific appeal, together with a certified check in the amount of the appeal fee (which shall include the fee set forth in the fee Resolution, plus the hearing examiner's fees charged to the City on the appeal), which appeal fee shall be returned to the appellant if the decision of the City is not sustained by the hearing examiner. If the hearing examiner sustains the decision, the appeal fee will be applied to any fees charged by the hearing examiner on the decision or appeal. If the City Council is the decision­ maker on the appeal, only the appeal fee shall be charged. If any appellant believes that the payment of the appeal fee creates a financial hardship, it shall submit a request for an appeal waiver with the appeal statement on or before the deadline established in the City's code relating to the specific appeal. This request for an appeal waiver shall describe the appellant's financial situation and why payment of the 94 of 206 Resolution No. 030-17 Page 11 of 16 appeal fee creates a financial hardship. As an example, the appellant may provide evidence that the appellant resides in a low-income household, which would include a single person, family or unrelated persons living together, whose adjusted income is less than eighty percent of the median family income, adjusted for household size, for Kitsap County. Signs Permits Signs may also require a building permit. See B.4 and Table 3. TABLE 13: Sign Permits $25A-Board Sign $50Permanent Sign $500Comprehensive Sign Plan (Sign Program) $75Placement of WSDOT directional sign Books/Maps/Optical Discs/Other TABLE 14: Books/Maps/Optical Discs/Other $5Copies of Codes and Standards on Disc $0.15 per page black and white or $1 per page color________________________ Photocopies 11x17 and smaller (in house copying); Refer to POMC 1.18.070 for public records requests $3Map Scanning if above 11x17 $3 per linear foot or portion thereof (36" width)___________________________Print Jobs on Plotter In house binding of documents (plastic spine) (which are also printed in house)__________$15 In house binding of documents (3 ring binder) (which are also printed in house)__________$10 $75 per hour to produce, minimum 1 hourGIS Data and Custom Maps Public Notice signs Actual cost + 25% D. Public Works Department Fees The Public Works Department permit fees listed in the tables below shall be paid at the time an application is submitted to the city unless otherwise specified. TABLE 15: Public Works Department Permits and Fees Public Works Cost Note No more than one minor LDAP may be issued for the same property (parcel Minor Land Disturbing Activity Review and Permit (disturbances of less than 1,000 square feet)________________________$50 95 of 206 Resolution No. 030-17 Page 12 of 16 and/or address) in any 365 day period.______ (Paid at the time of application submittal - covers Land Disturbing Activity plan review costs). Acres of disturbance should be rounded to the nearest $100 for the first acre of disturbance + $25 for each additional acre of Disturbance above 1 acre. $100 minimum fee. Land Disturbing Activity Permit Plan Review acre. (Paid at time of permit issuance - covers Land Disturbing Activity inspection costs). Acres of disturbance should be rounded to the nearest acre. $100 for the first acre of disturbance + $50 for each additional acre of Disturbance above 1 acre. $100 minimum fee.Land Disturbing Activity Permit $100 for the first 3,000 square feet of hard surface to be constructed + $25 for each additional 3,000 square feet of hard surface to be constructed. $100 minimum fee. (Paid at the time of application submittal - covers hard surface and stormwater improvement plan review costs).______Stormwater Drainage Permit Plan Review $100 for the first 3,000 square feet of hard surface to be constructed + $50 for each additional 3,000 square feet of hard surface to be constructed. $100 minimum fee. Stormwater Drainage Permit (Paid at time of permit issuance - covers hard surface and stormwater improvement inspection costs)_____Stormwater Drainage Permit $50Street Use Permit Application Fee Street Signs (provided by the city)Actual Cost +25% Per hour of required plan review.______ Plan Revision Review to Approved Permit Drawings_________________________$100 The applicant shall pay the actual fee, including city attorney costs, for preparing the latecomer agreement$500 DepositLatecomer Agreement Review Fee $50ROW Permit, first 100 Linear Feet $10ROW Permit, every 300 Feet thereafter Violator must obtain the required permit and pay twice the normal permit feeWork without a Permit - Penalty Permit fee is doubled 96 of 206 Resolution No. 030-17 Page 13 of 16 TABLE 16: Street Vacations $120Street Vacation Petition Fee $500 Deposit, Petitioner shall pay the actual cost of the appraisal.__________________________ Street Vacation Appraisal Fee (Refundable Deposit)__________________ TABLE 17: Impact Fee Deferrals (POMC 16.70.110 D) $300Application for Impact Fee Deferral TABLE 18: Residential Parking Permits $10Residential Parking Permit $5Replacement Parking Permit $10Temporary Residential Parking Permit $10Bed and Breakfast Parking Permit Table 19: Concurrency Review (POMC 16.71) 1. Concurrency (Capacity Reservation Certificate) applications fees shall be based on the following table. Each type of application (Transportation, Water, or Sewer) shall include payment of an application fee (A) plus any consultant fees charged to the city (B or C) for concurrency review as applicable. Type of Review B CA Application Fee (also the total review fee for applications reviewed in house by the City) Review Performed by Consultant- Application submitted after a scope and fee has been obtained Review Performed by Consultant - Application submitted prior to obtaining scope and fee (Deposit) $150 $1000 Deposit, the actual fee for The applicant shall pay the amount shown in the scope and fee provided by the City's Consultant. Transportation concurrency review to be paid by the applicant__________ $150 $1000 Deposit, the actual fee for The applicant shall pay the amount shown in the scope and fee provided by the City's Consultant. Water concurrency review to be paid by the applicant__________ 97 of 206 Resolution No. 030-17 Page 14 of 16 $1000 Deposit, the actual fee for concurrency review to be paid by the applicant__________ $150 The applicant shall pay the amount shown in the scope and fee provided by the City's Consultant. Sewer 2. The Director of Public Works shall make all determinations as to whether an application be reviewed by the city or be sent to the consultant for review. 3. When a deposit is required pursuant to the above table, the deposit shall be applied to the actual fee incurred by the city. Any balance owed shall be paid prior to the issuance of a concurrency certificate. E. Fire District Review and Inspection Fees. A surcharge on the permit types identified in Tables 21 - 25 shall be collected if Fire District review and/or inspections take place. The minimum fee shall be $100 except where specified in the tables. The fee shall be paid at the time the permit is issued unless otherwise specified. TABLE 20: BUILDING PERMITS AmountType $150Commercial Addition $400New Commercial Building $75Tenant Certificate of Occupancy $150New Cell Tower $150Commercial or Government Miscellaneous $250Tenant Improvement $75Demolition $150Commercial Waterfront $100New Residential: Single family, ADU, Duplex $250New Multi-family: Triplex and above $75Residential Certificate of Occupancy $100Other Permit Types with Flat Fees TABLE 21: FIRE CODE PERMITS AmountType $400Fire Alarm $400Fire Sprinkler 98 of 206 Resolution No. 030-17 Page 15 of 16 $400Fire Suppression System $400Tank Install $400Tank Decommission $400High Pile Storage Fire Code permit projects which are identified as highly complex shall be reviewed by a consultant under contract services. In addition to the fee listed above, the consultant fee shall be paid by the applicant and is due when the permit is issued. TABLE 22: LAND USE PERMITS Type Amount $250Boundary Line Adjustment $250Conditional Use Permit $250Preliminary Plat or alteration of $250Final Plat or alteration of $250Final Binding Site Plan or alteration of $250Shoreline: Substantial Development, Conditional Use, Variance $250Short Plat: Preliminary or Final $250Variance $250Comprehensive Plan Amendment $250Zone Reclassification (Rezone) TABLE 23: PUBLIC WORKS PERMITS Type Amount $250Land Disturbance Activity Permit and/or Stormwater Drainage Permit (This fee shall not be charged more than once per project if the permits are issued simultaneously) $75Right-of-Way $100Other Permit Types with flat fees TABLE 24: 99 of 206 Resolution No. 030-17 Page 16 of 16 OTHER AmountType $150Formal Pre-Application Conference (not credited towards a future application fee) $100Cabaret License $100Carnival License $100Liquor or Marijuana License $100Pawn Broker $50Street Use Permit Application fee 100 of 206 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: June 26, 2018 Subject: Adoption of a Resolution Approving a Prepared by: Mark Dorsey, P.E. Contract with BHC Consultants for the Public Works Director 2018-2020 Well No. 13 Ad Ready Design, Atty Routing No.: N/A Permitting, Bid Support and Construction Atty Review Date: N/A Services Summary: On August 15, 2017, given procurement concerns discovered during the 2017 Audit, the City of Port Orchard terminated Contact No. C076-14 with BHC Consultants for the Well No. 10 (amended to Well No. 13) Project. On March 23 and March 30, 2018, the City’s Public Works Department published a new Request for Qualifications (RFQ) for the 2018-2020 Well No. 13 Final Ad Ready Design, Permitting, Bid Support and Construction Administration Services. By the published April 12, 2018 deadline, two (2) Statements of Qualification (SOQ) were received. On April 30, 2018, the City interviewed both firms, and based upon the qualifications received and the interview process, BHC Consultants was selected. On May 2, 2018, Public Works Staff completed the Mandatory Bidder Responsibility Checklist and on June 19, 2018, the City received an acceptable Scope of Work, Budget and Milestones in the amount not to exceed $917,910.00. Recommendation: Staff recommends adoption of Resolution No. 022-18, thereby approving Contract No. C039-18 with BHC Consultants for the 2018-2020 Well No. 13 Final Ad Ready Design, Permitting, Bid Support and Construction Administration in an amount not to exceed $917,910.00 and documenting the Professional Services procurement procedures. Relationship to Comprehensive Plan: Chapter 7 – Utilities (Water) Motion for Consideration: I move to adopt Resolution No. 022-18, thereby approving Contract No. C039-18 with BHC Consultants for the 2018-2020 Well No. 13 Final Ad Ready Design, Permitting, Bid Support and Construction Administration in an amount not to exceed $917,910.00 and documenting the Professional Services procurement procedures. Alternatives: Do not authorize. Fiscal Impact: $5M was allocated within Fund 401 of the 2017-2018 Biennial Budget, in accordance with the original Project Completion Deadline of June 30, 2018. With the Project timeline now extended to June 30, 2020, the 2019-2020 Biennial Budget will accommodate the timeline extension. Attachments: Resolution, Contract, and Proposal (dated 6/19/2018). 101 of 206 102 of 206 RESOLUTION NO. ____ A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE CONTRACT NO. C039-18 WITH BHC CONSULTANTS FOR THE 2018–2020 WELL NO. 13 FINAL AD READY DESIGN, PERMITTING, BID SUPPORT & CONSTRUCTION ADMINISTRATION SERVICES AND DOCUMENTING PROFESSIONAL SERVICES PROCUREMENT PROCEDURES. WHEREAS, on August 15, 2017, given procurements concerns discovered during the 2017 SAO Audit, the City of Port Orchard terminated Contract No. C076-14 with BHC Consultants for the Well No. 10 (amended to Well No. 13) Project; and WHEREAS, on March 23 and March 30, 2018, the City of Port Orchard Public Works Department published a Request for Qualifications (RFQ) for the 2018 - 2020 Final Ad Ready Design, Permitting, Bid Support and Construction Administration Services; and WHEREAS, by the April 12, 2018 deadline, the City’s Public Works Department received two (2) Statement of Qualifications (SOQ’s) from qualified firms and chose to interview both firms; and WHEREAS, on April 30, 2018, the City’s Public Works Department held interviews both consulting firms and based upon the qualifications received and the interview process, selected BHC Consultants for the Project award; and WHEREAS, on May 2, 2018, City Staff completed the Mandatory Bidder Responsibility Checklist; and WHEREAS, on June 26, 2018, City Staff received an acceptable updated Scope, Schedule and Budget: and WHEREAS, the Port Orchard City Council, at the 2015 recommendation of the State Auditor’s Office, wishes to document their consultant selection process as described above for this particular contract by Resolution; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The Port Orchard City Council approves Contract 039-18 with BHC Consultants for the 2018-2020 Well No. 13 Final Ad Ready Design, Permitting, Bid Support and Construction Administration Services and adopts the “Whereas” statements contained herein, as findings in support of the City’s consultant selection procurement procedures. 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 26th day of June, 2018. Robert Putaansuu, Mayor ATTEST: Brandy Rinearson, MMC, City Clerk 103 of 206 104 of 206 CITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT THIS Agreement is made effective as of the 26th day of June 2018, by and between the City of Port Orchard, a municipal corporation, organized under the laws of the State of Washington, whose address is: 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 BHC Consultants LLC, a Corporation, organized under the laws of the State of Washington, doing business at: BHC Consultants LLC (hereinafter the “CONSULTANT”) 1601 Fifth Avenue, Suite 500 Seattle, WA 98101 Contact: Charlie Dougherty, P.E. Phone: 206.505.3400 Fax: 206.505.3406 for professional services in connection with the following Project: 2018-2020 Well No. 13 Final Ad Ready Design, Permitting, Bid Support and Construction Administration Services TERMS AND CONDITIONS 1. Services by Consultant. A. Consultant shall perform the services described in the Scope of Work attached to this Agreement as Exhibits "A, A-1, A-2, A-3, B and C." The services performed by the Consultant shall not exceed the Scope of Work without prior written authorization from the City. B. The City may from time to time require changes or modifications in the Scope of Work. Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by the parties and incorporated in written amendments to the Agreement. 2. Schedule of Work. A. Consultant shall perform the services described in the Scope of Work in accordance with the Tasks identified within Exhibits “A, A-1, A-2, A-3, B and C” and the Terms of this Agreement. If delays beyond Consultant's reasonable control occur, the parties will negotiate in good faith to determine whether an extension is appropriate. B. Consultant is authorized to proceed with services upon receipt of a written Notice to Proceed. 105 of 206 3. Terms. This Agreement shall commence on June 26, 2018 (“Commencement Date”) and shall terminate July 31, 2020 unless extended or terminated in writing as provided herein. 4. Compensation. LUMP SUM. Compensation for these services shall be a Lump Sum of $_________________. X TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $917,910.00 without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit “C.” TIME AND MATERIALS. Compensation for these services shall be on a time and material basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit “_____.” OTHER. _____________________________________________________________ 5. Payment. A. Consultant shall maintain time and expense records and provide them to the City monthly after services have been performed, along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. B. All invoices shall be paid by City warrant within sixty (60) days of receipt of a proper invoice. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the parties shall immediately make every effort to settle the disputed portion. C. Consultant shall keep cost records and accounts pertaining to this Agreement available for inspection by City representatives for three (3) years after final payment unless a longer period is required by a third-party agreement. Copies shall be made available on request. D. On the effective date of this Agreement (or shortly thereafter), the Consultant shall comply with all federal and state laws applicable to independent contractors, including, but not limited to, the maintenance of a separate set of books and records that reflect all items of income and expenses of the Consultant’s business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to show that the services performed by the Consultant under this Agreement shall not give rise to an employer-employee relationship between the parties, which is subject to Title 51 RCW, Industrial Insurance. E. If the services rendered do not meet the requirements of the Agreement, Consultant will correct or modify the work to comply with the Agreement. City may withhold payment for such work until the work meets the requirements of the Agreement. 6. Discrimination and Compliance with Laws A. Consultant 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, color, national origin, 106 of 206 marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. Even though the Consultant 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 inspection to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state and municipal laws, rules and regulations that are now effective or become applicable within the terms of this Agreement to the Consultant’s business, equipment and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. C. Consultant shall obtain a City of Port Orchard business license prior to receipt of written Notice to Proceed. D. Violation of this Paragraph 6 shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by City, in whole or in part, and may result in ineligibility for further work for City. 7. Relationship of Parties. The parties intend that an independent contractor-client relationship will be created by this Agreement. As the Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub-consultant of the Consultant shall be or shall be deemed to be the employee, agent, representative or sub-consultant of the City. In the performance of the work, the Consultant 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- consultants of the Consultant. The Consultant will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives and sub-consultants 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 Consultant performs hereunder. 8. Suspension and Termination of Agreement A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Consultant’s insolvency or bankruptcy, or the Consultant’s assignment for the benefit of creditors. B. Termination with cause. The Agreement may be terminated upon the default of the Consultant and the failure of the Consultant to cure such default within a reasonable time after receiving written notice of the default. C. Rights Upon Termination. 1. With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of Consultant pursuant to this Agreement shall be submitted to City, and Consultant shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. Consultant shall not be entitled to any reallocation of 107 of 206 cost, profit or overhead. Consultant shall not in any event be entitled to anticipated profit on work not performed because of such termination. Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. 2. Default. If the Agreement is terminated for default, the Consultant shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Consultant. The Consultant shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the City by reason of such default. D. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable expenses, and shall be subject to verification. The Consultant shall resume performance of services under this Agreement without delay when the suspension period ends. E. Notice of Termination or Suspension. If delivered to the Consultant in person, termination shall be effective immediately upon the Consultant’s receipt of the City’s written notice or such date as stated in the City’s notice of termination, whichever is later. Notice of suspension shall be given to the Consultant in writing upon one week's advance notice to Consultant. Such notice shall indicate the anticipated period of suspension. Notice may also be delivered to the Consultant at the address set forth in Section 15 herein. 9. Standard of Care. Consultant represents and warrants that it has the requisite training, skill and experience necessary to provide the services under this agreement and is appropriately accredited and licensed by all applicable agencies and governmental entities. Services provided by Consultant under this agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. 10. Ownership of Work Product. A. All data, materials, reports, memoranda, and other documents developed under this Agreement whether finished or not shall become the property of City, shall be forwarded to City at its request and may be used by City as it sees fit. Upon termination of this agreement pursuant to paragraph 8 above, all finished or unfinished documents, reports, or other material or work of the Consultant pursuant to this Agreement shall be submitted to City. Any reuse or modification of such documents, reports or other material or work of the Consultant for purposes other than those intended by the Consultant in its scope of services shall be at the City’s risk and without liability to the Consultant. B. All written information submitted by the City to the Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available or is already in Consultant’s possession or known to it, or is rightfully obtained by the Consultant from third parties, the Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. The Consultant is permitted to disclose any such information to the extent required by law, subpoena or other court order. 108 of 206 11. Work Performed at the Consultant’s Risk. The Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents and sub-consultants in the performance of the work hereunder, and shall utilize all protection necessary for that purpose. All work shall be done at the Consultant’s own risk, and the Consultant shall be responsible for any loss or damage to materials, tools, or other articles used or held by the Consultant for use in connection with the work. 12. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including reasonable attorneys’ fees, to the extent caused by the negligent acts, errors or omissions of the Consultant in performance of this Agreement, except for injuries or damages caused by the sole negligence of the City. This Agreement is Subject to RCW 4.24.115. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and Volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. 13. Insurance. The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. A. Minimum Scope of Insurance Consultant shall obtain insurance of the types described below: 1. 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. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 or a substitute form providing equivalent liability coverage and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named by endorsement as an additional insured under the Consultant’s Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 109 of 206 4. Professional Liability insurance appropriate to the Consultant’s profession. B. Minimum Amounts of Insurance Consultant shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. 4. Employer’s Liability each accident $1,000,000, Employer’s Liability Disease each employee $1,000,000, and Employer’s Liability Disease – Policy Limit $1,000,000. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: 1. The Consultant’s insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant’s insurance and shall not contribute with it. 2. The Consultant’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. 3. The City will not waive its right to subrogation against the Consultant. The Consultant’s insurance shall be endorsed acknowledging that the City will not waive their right to subrogation. The Consultant’s insurance shall be endorse to waive the right of subrogation against the City, or any self-insurance, or insurance pool coverage maintained by the City. 4. If any coverage is written on a “claims made” basis, then a minimum of a three (3) year extended reporting period shall be included with the claims made policy, and proof of this extended reporting period provided to the City. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Consultant 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 Consultant before commencement of the work. 110 of 206 14. Assigning or Subcontracting. Consultant 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. 15. Notice. Any notices required to be given by the City to Consultant or by Consultant 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 CONSULTANT BHC Consultants LLC Ron Dorn, P.E. 1601 Fifth Avenue, Suite 500 Seattle, WA 98101 Phone: 206.505.3400 Fax: 206.505.3406 16. Resolution of Disputes and Governing Law. A. 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. B. If any dispute arises between the City and the Consultant under any of the provisions of this Agreement which cannot be resolved by the Mayor’s determination in a reasonable time, or if the Consultant 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. C. 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 attorney’s fees from the other party. 17. General Provisions. A. 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. B. 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 Consultant. C. 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 111 of 206 112 of 206 113 of 206 114 of 206 115 of 206 116 of 206 117 of 206 118 of 206 119 of 206 120 of 206 121 of 206 122 of 206 123 of 206 124 of 206 125 of 206 126 of 206 127 of 206 128 of 206 129 of 206 130 of 206 131 of 206 132 of 206 133 of 206 134 of 206 135 of 206 136 of 206 137 of 206 138 of 206 139 of 206 140 of 206 141 of 206 142 of 206 143 of 206 144 of 206 145 of 206 146 of 206 147 of 206 148 of 206 149 of 206 150 of 206 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 Meeting Date: June 26, 2018 Subject: Approval of Change Order No. 3 to Contract Prepared by: Mark Dorsey, P.E. No. C037-17 with Active Construction Inc. Public Works Director for the Tremont Street Widening Project Atty Routing No: N/A Atty Review Date: N/A Summary: On June 27, 2017, the Port Orchard City Council approved Contract No. 037-17 with Active Construction, Inc. for the Tremont Street Widening Project. On April 24, 2018, Council authorized the Mayor to execute Change Order No. 1, being the 16-inch diameter sanitary sewer force main change in condition ‘not to exceed’ amount of $250,000.00. On May 8, 2018, Council approved Change Order No. 1A, which amended the actual Change Order No. 1 cost of work (reduced to $242,906.33) and authorized the Mayor to execute Change Order No. 2, being the realignment of the Golden Pond/Kaiser Permanente 4-inch diameter sanitary sewer force mains along Pottery Avenue changes in condition ‘not to exceed’ amount of $150,000.00. The amendment to Change Order No. 2 is not yet ready to process. Tonight’s action, being the authorization to proceed immediately with Change Order #3, is associated with the SR 16/Tremont interchange illumination - power meter base relocation change in condition at a ‘not to exceed’ amount of $116,889.50. As mentioned before, the Change Order approval process between the Contractor, the City’s CA/CM Team and WSDOT Highways & Local Programs will not occur in time for this Regular Meeting and cannot wait, therefore the City’s Public Works Department is requesting authorization for the Mayor to execute Change Order No. 3 with Active Construction, Inc. in an amount not to exceed $116,889.50 at this time. Again, once the actual Change Order approval process is complete, a corrected Change Order No. 3A will be brought back to Council for final ratification. Relationship to Comprehensive Plan: Project 1.1 – Chapter 8: Transportation. Recommendation: Staff recommends that the City Council authorize the Mayor to execute Change Order No. 3 with Active Construction, Inc. in an amount not to exceed $116,889.50, with a corrected Change Order No. 3 to be brought back to Council for final ratification. Motion for Consideration: I move to authorize the Mayor to execute Change Order No. 3 with Active Construction, Inc. in an amount not to exceed $116,889.50, with a corrected Change Order No. 3 to be brought back to Council for final ratification. Fiscal Impact: Funding provided within the approved 2017-2018 Budget for this Project. Alternatives: None. Attachments: ACI Change Order No. 3. 151 of 206 152 of 206 153 of 206 154 of 206 216 Prospect St. Port Orchard, WA 98366 Date: Federal Aid: State Contract: Contract: Projects: Change Order: June 20, 2018 STPUS-6610(004) N/A LA 5855 03 Review  Documentation _____________  Resident Engr. _____________  Materials Appr Engr. _____________  City Project Manager _____________  WSDOT _____________  Finance (>10%) _____________ CONTRACTOR: RECAPITULATION Active Construction Inc. ORIGINAL CONTRACT: $ 12,779,179.17 5110 River Rd. E PREVIOUS ADDITIONS: $ 392,906.33 Tacoma, WA 98443 PREVIOUS DEDUCTIONS: $ 0.00 PROJECT: PREVIOUS TOTAL: $ 13,172,085.50 Tremont Street Widening SR 16 to Port Orchard Boulevard THIS CHANGE (ADD.): $ ___116,889.50 (DED.): $ 0.00 ADJUSTED TOTAL: $ 13,288,975.00 Sections 1-04.4 and 1-04.5 of the 2016 Standard Specifications shall govern the issuance of this Change Order. The work of this contract is herein modified to include the change detailed below. Additional quantities for existing and new items shall constitute the complete and final settlement for all costs of labor, material, equipment, overhead, profit, permit fees, damages (whether direct or indirect), and all other claims by the contractor as a result of this change. The time for completion is changed by this Change Order; five (5) working days are hereby added to the contract. Your proposal and this acceptance shall constitute and become part of the contract, subject to all conditions contained therein, as modified by this Change Order. Accepted on: Approved by: Date Public Works Director/City Engineer Date City of Port Orchard By: Active Construction Inc. Acknowledged by: N/A Surety Surety Seal (If Applicable) 155 of 206 Description This change is for installing an electrical service for WSDOT luminaires for SR 16 at the northbound off ramp. This work includes, but not limited to, furnishing and installing; PVC Conduit 3” SCH 80, PVC Conduit 2” SCH 80, Junction Box Type 1, Junction Box Type 2 and Junction Box Type 5, Type E Service Cabinet with foundation, luminaire foundation extension, #3/0 conductor, #8 conductor and remove exist- ing service cabinet and foundation. The following plan sheets are modified and are incorporated as part of this change order: • IL-1, Illumination Plan dated April 27, 2018, IL-2, Illumination Plan dated May 08, 2018. This Change Order creates the following Bid Items with the following quantity to the project: • SR16 Illumination Service – Add New Bid Item (LS) • SR 16 Luminaire Foundation Extension – Add New Bid Item (LS) • Additional Flagging and Surveying – Add New Bid Item (LS) Measurement and Payment Measurement and Payment for Increased Items of Work will be in accordance with the Project Specifica- tions and the Unit Contract Price. All the modifications will be paid for under new bid items, the newly created bid items or are incidental to the existing Bid Items. NEW Bid Item A201 SR 16 Illumination Service Lump Sum $ 93,889.50 NEW Bid Item A202 SR 16 Luminaire Foundation Extension Lump Sum $ 6,900.00 NEW Bid Item A203 Additional Flagging and Surveying Lump Sum $ 16,100.00 Total this Change Order ................................................................................................................. $116,889.50 Time Statement There will be an additional Five (5) days allowed by this Change Order. 156 of 206 33301 9th Avenue South, Suite 300Federal Way, Washington 98003-2600(206) 431-2300 Fax: (206) 431-2250Last Saved by: CLM on: May 17, 2018 1:46 PM File: H:\(p) Projects\16\16154-000 Tremont Street Widening (Sub toBerger)\CAD\DWG\Cadd for new service project 14_SU01,15_UT02,15_UT03\IL_Sheets.dwg Copyright © BergerABAM. All Rights Reserved.CALL 48 HOURS BEFORE YOU DIG1-800-424-5555APRIL 27, 2018CITY OF PORT ORCHARDA17.0064TREMONT STREET SERVICE RELOCATIONSR16 TO PORT ORCHARD BOULEVARDSeattle, Washington 98104719 Second Ave., Suite 1250(206) 382-9800www.dksassociates.comCLMCLMTNLEHSSERVICE CABINETJUNCTION BOX (TYPE 1), LOCKING LIDWSDOT STD. PLAN J-40.10-04JUNCTION BOX (TYPE 2), LOCKING LIDWSDOT STD. PLAN J-40.10-04JUNCTION BOX (TYPE 5), TRAFFIC RATEDWSDOT STD. PLAN J-40.20-03CONDUITCONSTRUCTION NOTEWIRE NOTELEGENDFURNISH AND INSTALL 100A TYPE E SERVICE CABINET ANDFOUNDATION PER WSDOT STANDARD PLANS J-10.10-03 ANDJ-10.22-00 (NO FENCE INSTALLATION). SEE SERVICE CABINETDETAIL, THIS SHEET.COORDINATE WITH SERVICE PROVIDER FOR INSTALLATION OFCONDUIT INTO EXISTING SERVICE FEED POINT. SERVICEPROVIDER TO INSTALL CONDUCTORS FROM JUNCTION BOXTO SERVICE FEED POINT.REPLACE EXISTING JUNCTION BOX WITH TRAFFIC RATED TYPE 5JUNCTION BOX PER WSDOT STANDARD PLAN J-40.20-03 ANDADJUST TO MATCH GRADE. DISCONNECT ALL CONDUCTORSFROM EXISTING SERVICE CABINET AND PULL BACK TO THENEXT JUNCTION BOX AFTER THIS BOX. INSTALL TWO (2) NEWCONDUIT TO INTERCEPT EXISTING BOX AS SHOWN. RE-PULLEXISTING CONDUCTORS TO THIS JUNCTION BOX AND THENTHROUGH NEW CONDUIT TO NEW SERVICE CABINET LOCATION.LAND CONDUCTORS TO MATCH THE EXISTING LIGHTINGCIRCUITS. SEE WIRE NOTES AND BREAKER SCHEDULE (THISSHEET) FOR MORE DETAIL.CONTRACTOR SHALL PROVIDE ADEQUATE CABLE SLACK FORTHE SERVICE PROVIDER TO MAKE THE FINAL CONNECTION.DISCONNECT, REMOVE AND PROTECT EXISTING STREET LIGHT.INSTALL LIGHT POLE FOUNDATION EXTENSION PER DETAIL A ONSHEET IL-2, THEN RE-INSTALL EXISTING STREET LIGHT ANDRECONNECT LIGHTING CONDUCTORS.REMOVE AND SALVAGE EXISTING STREET LIGHT SERVICECABINET. REMOVE AND DISPOSE OF EXISTING FOUNDATION.CONSTRUCTION NOTESSERVICE BREAKER SCHEDULE, PER WSDOT STD. PLAN J-10.22-00SERVICE NO:TBDNAME: TREMONT ST AND SR 16 NB OFF RAMPDESCRIPTION:240/480, SINGLE PHASE, 3-WIRECIRCUITDESCRIPTIONBREAKER RATING P VOLTAGE CONTACTOR LOADMAIN BREAKER100 AMP 2 480SPARE20 AMP 2 480FUTUREEX. CKT ASTREET LIGHTING15 AMP 2 48030EXISTINGEX. CKT BSTREET LIGHTING15 AMP 2 48030EXISTINGEX. CKT CSTREET LIGHTING15 AMP 2 48030EXISTINGEX. CKT DSTREET LIGHTING15 AMP 2 48030EXISTINGCKT ELIGHTING SPARE15 AMP 2 48030SPAREMAX SUPPLY AMPS: 100BUSSWORK SHALL BE RATED AT 250 AMP MINIMUMPEAKEXISTINGCONTINUOUSEXISTINGWIRE NOTESRUNNO.CONDUIT#8 (LTG) #8 (GND)#3/0(SVC)NOTES1 3"132 2"8(EX) 1(EX)3 3"13SERVICE PROVIDER MAKES FINAL CONNECTION TO SERVICE FEED.CONTRACTOR COORDINATES AND INSTALLS CONDUIT.42"(EX) 2(EX) 1(EX)5 3"1SPAREIL-0111. PROVIDE AND INSTALL JUNCTION BOXES OF THE SIZE AND TYPE AS INDICATED ON THEPLANS. JUNCTION BOX LOCATIONS AS SHOWN ARE APPROXIMATE AND MAY BEADJUSTED PER FIELD CONDITIONS. BOXES SHALL BE ADJUSTED TO MATCH FINISH GRADE(SEE WSDOT STD. PLAN J-40.10-04).2. CONTRACTOR SHALL KEEP EXISTING LUMINARIES FULLY OPERATIONAL THROUGHOUTCONSTRUCTION UNTIL CHANGED TO THE NEW SERVICE. COORDINATE SWITCH OVER ANDTEST DURING DAYLIGHT HOURS.3. ALL CONDUIT SHALL BE SCHEDULE 80 PVC, MINIMUM.ILLUMINATION GENERAL NOTESSTA 11+27.835.8' RTSTA 11+19.535.8' RTSERVICE CABINET DETAILNOT TO SCALETYPE E SERVICE CABINET AND FOUNDATIONPER WSDOT STD. PLAN J-10.10-03 AND J-10.22-001157 of 206 LIGHT POLE FOUNDATION EXTENSIONA IL-1 B - EPOXIED BAR LOCATIONB -Last Saved by: Blake.nelson on: May 9, 2018 11:57 AM File: Q:\FederalWay\2017\A17.0064\00\CADD\Dwgs\28_IL02.dwgCopyright © BergerABAM. All Rights Reserved.CALL 48 HOURS BEFORE YOU DIG 1-800-424-5555 33301 9th Avenue South, Suite 300 Federal Way, Washington 98003-2600 (206) 431-2300 Fax: (206) 431-2250 GREG O R Y A. B A NKSSTATE O F W ASHIN GTONR EGIST E R E DPRO F E SSIONAL E N G INEER45120 CONFORMED SET IL-2 A17.0064 May 08, 2018 X OF 230 CITY OF PORT ORCHARD TREMONT STREET WIDENING SR16 TO PORT ORCHARD BLVD LIGHT POLE FOUNDATION EXTENSION BELN BELN GAB SPT 2158 of 206 Change Order Justification Currently, the electrical service for the illumination at SR 16 is at the control cabinet at Kitsap Blvd intersection. This project removes the signal at Kitsap Blvd. To maintain the illumination at SR 16, a new power source is necessary. The transformer at the end of the maintenance road for the detention pond/sanitary FM can handle the 480 V service for the SR 16 illumination. Change Order Estimate of Cost The independent estimate of cost: $109,292.51 Contractor estimate of cost: $116,889.50 The Contractor estimate of cost is 10% over the independent estimate of cost. Amount agreed by Contractor and RE: 116,889.50 Time Statement This work must be done prior to demolition of the signal system and controllers. Five (5) days will be added by this Change Order for impacts to the original contract work. 159 of 206 1) Couplers 16 EA $ 22.00 = $ 352.00 Hrs Total End Bell 16 EA $ 30.30 = $ 484.80 90˚ Elbow 16 EA $ 368.70 = $ 5,899.20 3" Conduit 850 LF $ 5.00 = $ 4,250.00 Trenching 850 LF $ 0.25 = $ 212.50 TOTAL $ 11,198.50 72 $ 5,588.64 2) Couplers 4 EA $ 30.00 = $ 120.00 End Bell 4 EA $ 103.60 = $ 414.40 90˚ Elbow 4 EA $ 436.00 = $ 1,744.00 2" Conduit 40 LF $ 5.10 = $ 204.00 TOTAL $ 2,482.40 4 $ 310.48 3) 6 EA $ 320.00 = $ 1,920.00 16 $ 1,241.92 4) 1 EA $ 457.00 = $ 457.00 4 $ 310.48 5) 1 EA $ 4,091.00 = $ 4,091.00 8 $ 620.96 6) Service Cabinet 1 EA $ 9,550.00 = $ 9,550.00 Foundation 1 EA $ 800.00 = $ 800.00 TOTAL $ 10,350.00 12 $ 931.44 7) 2700 LF $ 1.21 = $ 3,267.00 32 $ 2,483.84 8) 900 LF $ 0.39 = $ 351.00 12 $ 931.44 9) Remove Cabinet 1 EA $ 250.00 = $ 250.00 Remove Foundation 1 EA $ 250.00 = $ 250.00 TOTAL $ 500.00 8 $ 620.96 10)Equipment Skidsteer 1 EA $ 380.00 = $ 380.00 Vac Truck 1 EA $ 4,000.00 = $ 4,000.00 TOTAL $ 4,380.00 TOTAL $ 38,996.90 168 $ 13,040.16 Mark Up 21% $ 8,189.35 29% $ 3,781.65 TOTAL $ 47,186.25 $ 16,821.81 Contractor 5% $ 2,359.31 5%841.09$ TOTAL $ 49,545.56 $ 17,662.90 11)Trench Excacavation and Backfill (ACI) TREMONT STREET WIDENING CHANGE ORDER NO. 03 INDEPENDENT ESTIMATE 2018-06-20 Electrical Service to Luminaires @ SR 16 Interchange Change Order No. 03 Junction Box Type 2 #3/0 Conductor WSDOT Type E Service Cabinet at SR 16 Junction Box Type 1 PVC Conduit 3” SCH 80 SR 16 Illumination System Junction Box Type 5 PVC Conduit 2” SCH 80 #8 Conductor Remove Existing Service Cabinet 2 man crew @ $77.62 160 of 206 50 $ 6,840.00 50 $ 3,671.00 50 $ 4,867.00 $ 8,538.00 $ 6,840.00 Mark Up 21% $ 1,792.98 29% $ 1,983.60 TOTAL $ 10,330.98 $ 8,823.60 TOTAL $ 86,363.04 12) Remove Luminaire 1 EA $ 1,000.00 = $ 1,000.00 Rebar 1 LS $ 25.00 = $ 25.00 Bolt Extensions 1 LS $ 965.00 = $ 965.00 Chip base 1 LS $ - = $ - Concrete Short Load 1 EA $ 900.00 = $ 900.00 Equipment Boom Truck per Day 1 EA $ 250.00 = $ 250.00 Bucket Truck per Day 1 EA $ 250.00 = $ 250.00 TOTAL $ 3,390.00 24 $ 1,862.88 Mark Up 21% $ 711.90 29% $ 540.24 TOTAL $ 4,101.90 $ 2,403.12 Contractor 5% $ 205.10 5%120.16$ TOTAL $ 4,307.00 $ 2,523.27 TOTAL $ 6,830.27 13)24 $ 1,320.00 120 $ 11,160.00 TOTAL $ 12,480.00 Mark Up 29% $ 3,619.20 TOTAL $ 16,099.20 TOTAL $ 16,099.20 TOTAL $ 109,292.51 Days 1 21 3 1 26 Calculated By:Checked By: Date:Date: Operator - 2 @ $136.80 Equipment Mini Backhoe - 1 @ $73.42 Loader - 1 @ $97.34 Impacts to Critical Work 0 1 3 5 1 SR 16 Illumination Service SR 16 Luminaire Foundation Extension Additional Flagging and Surveying Additional Working Days Surveying 3 days. Surveying can run concurrently with trenching. Surveying 1 day before work can commence. According to the schedule, about 21 days before this work will impact the removal of the signal controller. Surveying - 1 @ $55 Traffic Control - 2 Flaggers @ $93 6/20/2018 Al Emter Trenching and laying conduits, 168 Hrs for 2 men = 21 days SR 16 Luminaire Foundation Extension, remove luminaire, adjust rebar and anchor bolts, concrete, concrete cure, reset luminaire. PSE connecting the power to activate. TOTAL SR 16 Luminaire Foundation Extension 161 of 206 BID ITEM ITEM DESCRIPTION QTY UNIT UNIT PRICE EXT. PRICE COMMENTS C0.02A SR 16 ILLUMINATION 1 LS $116,889.50 $116,889.50 AMAYA ELECTRIC LS PROPOSAL WITH APPLICABLE WSDOT MARKUP. ATTACHED FOR REVIEW YOU WILL FIND THEIR PRICING BACK UP. INCLUDING TRAFFIC CONTROL, ACI'S WORK INCLUDES REGRADING TO MATCH EXISTING, EXPORTING SAND BEDDING DISPLACEMENT, PROVIDING LAYOUT OF NEW & EXISTING UTILITIES, AND GENERAL CLEAN UP. 84% 13% 3% $116,889.50 ADD CONTRACT WORKING DAYS 5 DAYS NOTE* CO PRICING IS GOOD FOR 30 DAYS LA 5855 - ACI PRICING SUMMARY FOR THE SR 16 ILLUMINATION CO-XX DATE - 6/1/18 TOTAL CO PRICE PERCENTAGE OF WORK AMAYA ACI OTHER 162 of 206 163 of 206 164 of 206 165 of 206 166 of 206 167 of 206 168 of 206 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 7E Meeting Date: June 26, 2018 Subject: Approval of a Contract with Northwest Prepared by: Noah Crocker Urban Law PLLC for Land Use Legal Finance Director Counsel Atty Routing No: 052-18 Atty Review Date: June 22, 2018 Summary: The City of Port Orchard is seeking additional legal services to address the various project needs. The City has contracted to work with Northwest Urban Law, PLLC to serve as special counsel. This firm will work on specifically assigned projects on an as needed basis and compensated at an hourly rate. There will be no retainer structure with this contract. This contract has a maximum not to exceed value of $60,000 with a term going through 2019. Recommendation: Staff recommends approval of the awarded contract to Northwest Urban Law for attorney services. Relationship to Comprehensive Plan: None. Alternative: Not approve this request, with or without direction to staff regarding revisions to be made to this agreement. Fiscal Impact: This contract has a maximum not to exceed value of $60,000 with a term going through 2019. Motion for consideration: I move to approve a contract with Northwest Urban Law Group. Alternatives: Not approve the contract and provide direction to staff. Attachment: Contract. 169 of 206 170 of 206 LEGAL SERVICES AGREEMENT BETWEEN CITY OF PORT ORCHARD AND NORTHWEST URBAN LAW, PLLC THIS AGREEMENT is entered into by the City of Port Orchard, hereinafter referred to as the "City", and the law firm Northwest Urban Law, PLLC, hereinafter referred to as the "Attorney." RECITALS WHEREAS, the City has special projects and land use work and would like to hire the Attorney to assist with this work on a periodic basis; and WHEREAS, the parties desire to define the services to be provided by the Attorney, and the costs associated therewith; NOW, THEREFORE, The parties hereto agree as follows: TERMS Section 1. Term. The term of this Agreement shall be from the date this Agreement is executed by both parties until December 31, 2019, unless earlier terminated pursuant to the terms hereof. Either party may terminate this Agreement with or without cause, by providing thirty (30) days written notice to the other party. Section 2. Duties. A. Jennifer Robertson shall serve as the Attorney. B. The Attorney shall be principally responsible for performing certain civil legal work for the City, including special projects and land use work as assigned. This work will be project- specific work, the scope of which will be established between the parties when matters are assigned and accepted by the Attorney. Upon request, the Attorney will provide legal services on City premises, but it is anticipated that most of the legal services will be provided remotely by e-mail, telephone, and/or video-conference. In-person appointments may be scheduled as required or requested by the City. The work undertaken with the Attorney shall be as assigned by the City. Nothing in this Agreement requires the City to assign any specific matter to the Attorney. The City has a separate City Attorney to provide the routine legal work for the City. The following list of duties is illustrative of the services that may be performed by the Attorney upon request by the City, but is not necessarily inclusive of all duties and the City may opt to forego some of these services to keep legal costs within budget: 1. Draft City ordinances, Contracts, resolutions, interlocal agreements, correspondence and other legal documents as requested by the City; 2. Approve all legal documents that the Attorney is assigned to work on as to proper form and content; 171 of 206 3. Advise the Mayor, Councilmembers, staff members, committee members, commission members and board members with regard to legal matters relating to issues assigned to the Attorney; 4. Consult with and advise the Mayor, Councilmembers. Department heads and staff if requested by a department head or the Mayor, by telephone, in person and/or by written memo, on assigned matters; 5. Consult with any other legal counsel hired by the City, including the City Attorney, as directed by the City; 6. Attend Council meetings upon request; 7. Attend board meetings, commission meetings, committee meetings or any other type of meeting on an as-needed basis, including meetings with other governmental agencies and elected officials as necessary on matters involving the City projects assigned to the Attorney; 8. Such other duties as are necessary and appropriate in order to provide the City with legal representation on areas assigned to the Attorney. C. The Attorney's duties shall not include the following: 1. Providing public defense services for indigent defendants; 2. Providing criminal prosecution services; 3. Providing legal services associated with any personnel, employment matters, union negotiations or disciplinary proceedings; 4. Representing the City in any legal matter where the Attorney is prohibited from doing so as a result of a conflict of interest under the Rules of Professional Conduct or other applicable law or regulation; 5. Providing any litigation services beyond the administrative level unless specifically agreed by the Attorney; 6. Providing legal services where the City has insurance coverage that provides for legal services to the City, the City has tendered the defense of the lawsuit to the insurance carrier, and the insurance carrier has assigned the lawsuit to an attorney other than the Attorney. Section 3. Compensation. 172 of 206 A. Attorney's Fees. The City shall pay the Attorney for work performed according to the hourly rate of $250.00. Billing shall be in quarter of an hour increments. Invoices will be submitted on a monthly basis via email. B. Maximum Contract Amount. During the initial term of this contract, the Attorney will notify the City Clerk by email when the billable amount is approaching $5,000 in any one calendar month. During the initial term of this contract, the amount due shall not exceed Sixty Thousand Dollars ($60,000). If the Attorney is approaching the maximum amount prior to the contract termination date, she will communicate this information to the City Clerk to allow the City the option of either adjusting the Attorney’s assigned work load or amending the contract. C. Reimbursable Costs. The Attorney shall be reimbursed for costs and advances for such items such as legal messenger services, court filing fees, large copying or mailing projects and other similar expense items. Section 4. Equipment and Other Resources. The Attorney shall provide, at no cost to the City, its own cell phone, access to standard on-line computer legal research services, long distance telephone, cell phone service, mileage, etc. Section 5. Entire Agreement. This Agreement incorporates the entire agreement between the parties with regard to the legal work to be performed on behalf of the City, and the rates to be charged therefore. Section 6. Insurance. A. The Attorney will 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 Attorney, its agents, representatives, or employees. B. No Limitation. The Attorney's maintenance of insurance as required by this Agreement will not be construed to limit the liability of the Attorney 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 C. The Attorney will obtain insurance of the types described below: 1) Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage will be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy will be endorsed to provide contractual liability coverage. 2) Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington for any period of time that the Attorney has any employees. 3) Professional Liability insurance appropriate to the Attorney's profession. Minimum Amounts of Insurance 173 of 206 D. The Attorney will maintain the following insurance limits: 1) Automobile Liability personal auto policy with a $250,000 per person for bodily injury and property damage and $500,000 per accident. 2) Professional Liability insurance will be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. E. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Professional Liability insurance: 1) The Attorney's insurance coverage will be primary insurance with respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City will be excess of the City Attorney's insurance and will not contribute with it. 2) The Attorney's insurance will be endorsed to state that coverage will 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. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VIL G. Verification of Coverage. The Attorney will 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 Attorney before commencement of the work. H. Notice of Cancellation. The Attorney will provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. I. Failure to Maintain Insurance. Failure on the part of the Attorney to maintain the insurance as required will constitute a material breach of contract, upon which the City may, after giving five (5) business days' notice to the Attorney to correct the breach, immediately terminate this Agreement 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 to the Attorney from the City. J. Subcontractors. The Attorney will include all subcontractors as insureds under its policies or will furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors will be subject to all of the same insurance requirements as stated herein for the Attorney. Section 7. Independent Contractor. The Attorney is an independent contractor with respect to the services to be provided under this Agreement. The City shall not be liable for, nor obligation to pay to the Attorney or any of its employees, sick leave, vacation, pay, overtime or any other benefit applicable to employees of the City, nor to pay or deduct any social security, income tax or other tax from the payments made to the Attorney which may arise as an incident 174 of 206 of the Attorney performing services for the City. The City shall not be obligated to pay industrial insurance for the services rendered by the Attorney. Section 8. Ownership of Work Product. A. Any records, files, documents, drawings, specifications, data, or information, regardless of form or format, and all other products or materials produced by the Attorney in connection with the services provided to the City, will be the property of the City whether the project for which they are made is executed or not. All such documents, products, and materials will be forwarded to the City at its request and may be used by the City as it sees fit. The City agrees that if the documents, products, and materials prepared by the Attorney are used for purposes other than those intended by the Agreement, the City does so at its sole risk and agrees to hold the Attorney harmless for such use. B. All services performed under this Agreement will be conducted solely for the benefit of the City and will not be used for any other purpose without written consent of the City. Any information relating to the services will not be released to the news media or any other source without the written permission of the City. C. The Attorney at such times and in such forms as the City may require, will furnish to the City such statements, records, reports, data, and information as the City may request pertaining to matters covered by this Agreement. All of the reports, information, data, records, and other related materials, prepared or assembled by the Attorney under this Agreement are potentially subject to public disclosure pursuant to Ch. 42.56 RCW. To the extent allowed by Ch. 42.56 RCW, reports, information, data, records, and other related materials prepared or assembled by the Attorney under this Agreement that contain information that is personal and wherein a right to privacy exists, or that falls under a statutorily-specified exemption from disclosure, will be exempt from disclosure. Generally, Chapter 42.56, RCW requires disclosure of all but the most personal and sensitive information in City hands. Section 9. Hold Harmless. The Attorney agrees to indemnify, hold harmless and defend the City, its elected and appointed officials, employees and agents from and against any and all claims, judgments or awards of damages arising out of or resulting from the acts, errors or omissions of the Attorney. The City agrees to indemnify, hold harmless, and defend the Attorney and its officers, employees and agents from and against any and all claims, judgments or awards of damages, arising out of or resulting from the acts, errors or omissions of the City, its elected and appointed officials, employees and agents. 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 property caused by or resulting from the concurrent negligence of the Attorney and the City, its officers, officials, employees, and volunteers, the Attorney’s liability, including the duty and cost to defend, hereunder shall be only to the extent of the Attorney’s negligence. It is further 175 of 206 specifically and expressly understood that the indemnification provided herein constitutes the Attorney’s waiver of immunity under the 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. Section 10. Rules of Professional Conduct. All services provided by the Attorney under this Agreement will be performed in accordance with the Rules of Professional Conduct for attorneys established by the Washington Supreme Court. Section 11. Subcontracting or Assignment. The Attorney may not assign or subcontract any portion of the services to be provided under this Agreement without the express written consent of the City. Section 12. Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Unless otherwise specified, any written notice hereunder shall become effective upon the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated below: Attorney: City: Jennifer S. Robertson Northwest Urban Law, PLLC 8015 SE 28th Street, Suite 314 Mercer Island, WA 98040 City Clerk City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Dated this day of June, 2018. CITY OF PORT ORCHARD NORTHWEST URBAN LAW, PLLC Robert Putaansuu, Mayor Jennifer Robertson, Managing Member ATTEST Brandy Rinearson, MMC, City Clerk 176 of 206 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 7F Meeting Date: June 26, 2018 Subject: Approval of Amendment No. 2 to Prepared by: Noah Crocker Contract No. 018-16 with Lighthouse Finance Director Law Group for City Attorney Services Atty Routing No: 052-18 Atty Review Date: June 22, 2018 Summary: In the City of Port Orchard’s City Attorney Services Agreement with Lighthouse Law Group PLLC, Contract No. 018-16, the City has agreed to a retainer model of compensation. In recent months, it has become clear that, due to the current needs of the City a change in the retainer model is desirable. A new retainer model has been agreed to in the attached Amendment No. 2 to Contract No. 018-16 with Lighthouse Law Group for City Attorney Services. Under this new retainer model, the City would agree to a retainer of 50 hours for $8,750 per month for the services of certain attorneys. This amendment to the retainer model benefits the City by reducing the cost of the retainer. Recommendation: Staff recommends approval of the proposed Amendment No. 2 to Contract No. 018-16 with Lighthouse Law Group for City Attorney Services. Relationship to Comprehensive Plan: None. Motion for consideration: I move to approve Amendment No. 2 to Contract No. 018-16 with Lighthouse Law Group for City Attorney Services as presented. Fiscal Impact: It is anticipated that this amendment will save the City an average of $3,500 per month. Alternatives: Not approve this request, with or without direction to Staff regarding revisions to be made to this Agreement. Attachment: Amendment No. 2, Amendment 1, and Contract No. 018-16. 177 of 206 178 of 206 AMENDMENT NO. 2 to AGREEMENT FOR CITY ATTORNEY SERVICES Contract No. 018 -16 This AMENDMENT No. 2 to Contract No. 018-16 is made and entered into between the City of Port Orchard, Washington, a Washington municipal corporation (the “City”) and Lighthouse Law Group PLLC, a Washington Professional Limited Liability Company (the “City Attorney”). In consideration of the mutual benefits and covenants contained herein, the parties agree that their underlying Agreement for City Attorney Services numbered as City of Port Orchard Contract No. 018-16, executed on February 10, 2016, and amended on October 10, 2017, shall be further amended as follows: RECITALS WHEREAS, the City of Port Orchard desires to engage the professional services of Lighthouse Law Group PLLC as a legal service provider; and WHEREAS, the parties desire to define the services to be provided by the City Attorney, and the costs associated therewith; NOW, THEREFORE, in consideration of the terms, conditions and covenants contained herein, the parties hereto agree as follows: TERMS 1. Purpose The purpose of this Agreement is for the City to appoint Lighthouse Law Group PLLC (hereinafter referred to as "the City Attorney") as the City Attorney firm, and Sharon Cates as the named City Attorney, and to ensure that the City receives professional legal services from the City Attorney in an effective, timely and cost efficient manner while ensuring that the City Attorney is appropriately and fairly compensated for services rendered. Notwithstanding any provision of this Agreement, the City may contract for legal services with another attorney or law firm as deemed necessary by the City. 2. Scope of Services A. The City Attorney will be principally responsible for performing legal work for the City, as assigned, except as set forth in subsection B, below. The following list of duties is illustrative of the services to be performed, but is not necessarily inclusive of all duties: 1. City Attorney services will include advising the City on most aspects of civil municipal law, including but not limited to land use planning, public works construction, real estate, contracts, purchasing and procurement, code enforcement, public records act, open public meetings act, and employment and labor law; 2. The City Attorney’s office is located at: 1100 Dexter Avenue North, Suite 100, Seattle, WA 98109; (206) 273-7440. The City may schedule appointments with the City Attorney as needed, either in the City Attorney’s offices or at City Hall in Port Orchard. The City may ask the City Attorney to attend meetings on issues relating to City business in other locations; 3. The City Attorney will review and, where directed, draft City ordinances, resolutions, contracts, interlocal agreements, correspondence and other legal documents as requested by the City; 179 of 206 4. At the Mayor’s and the City Council’s discretion, and consistent with Port Orchard Municipal Code (POMC) Section 2.08.020(2) and RCW 35.23.111, the City Attorney may be assigned to represent the City in lawsuits and other contested proceedings either commenced by the City or in which the City is named as a defendant; 5. The City Attorney will approve legal documents as to proper form and content; 6. The City Attorney will advise the Mayor, Councilmembers, staff members, committee members, commission members, and board members with regard to legal matters relating to their respective duties being performed for the City, by email, telephone, in person and/or by written memorandum, on routine City business; 7. The named City Attorney or her designee will attend City Council meetings, work sessions, and other meetings as required; 8. The City Attorney may be asked to attend board meetings, commission meetings, committee meetings, meetings with other governmental agencies, or any other type of meeting on an as-needed basis on matters involving the City; 9. The named City Attorney may maintain regular weekly office hours at City Hall at a mutually agreeable day and time; and 10. The City Attorney will perform such other duties as are necessary and appropriate in order to provide the City with legal representation. The City Attorney acknowledges that the Mayor may decide to assign work to another attorney during the term of this Agreement, in his discretion. B. The City Attorney’s duties will not include the following: 1. Providing public defense services for indigent defendants; 2. Providing criminal prosecution services; 3. Providing municipal bond related legal services; 4. Representing the City in any legal matter where the City Attorney is prohibited from doing so as a result of a conflict of interest under the Rules for Professional Conduct or other applicable law or regulation; and 5. Providing legal services where the City has insurance coverage that provides for legal services to the City, the City has tendered the defense of the lawsuit to the insurance carrier, and the insurance carrier has assigned the lawsuit to an attorney other than the City Attorney. Provided, however, that if the insurance carrier has assigned the lawsuit to an attorney other than the City Attorney, the City Attorney may monitor the lawsuit, as requested by the City, on a case-by-case basis. The City acknowledges that he insurance carrier may retain the City Attorney to provide legal services. 3. Compliance with Laws The City Attorney, in the performance of this Agreement, will comply with all applicable federal, state and local laws and ordinances, including regulations for licensing, certification and operation of facilities, programs and accreditation, and licensing of individuals, and any other standards or criteria as 180 of 206 described in this Agreement to assure quality of services. The City Attorney will perform the services diligently and in accordance with professional standards of conduct and performance. 4. Advice and Status Reporting The City Attorney will provide the Mayor and the City Council with timely notice and advice of all significant developments arising during the performance of services hereunder, orally or in writing, as appropriate or as requested. The City Attorney will provide the Mayor and the appropriate department head with copies of all e-mails, pleadings, motions, discovery, correspondence, and other documents prepared by the City Attorney unless they have been otherwise provided to the City. 5. Compensation A. The City hereby agrees to pay the City Attorney a monthly retainer amount of EIGHT THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($8,750.00). Under this retainer model, the Attorney will provide up to fifty (50) hours of legal services per calendar month. These legal services hours may be provided by Sharon Cates, Patricia Taraday, Beth Ford and Desiree Phair, and will be billed at an hourly rate of ONE HUNDRED SEVENTY-FIVE DOLLARS ($175.00) per hour. If more than fifty (50) retainer hours are billed in a given calendar month, additional legal services will be billed on an hourly basis at ONE HUNDRED NINETY DOLLARS ($190.00) per hour. Any work performed by Jeff Taraday, Rosa-Fruehling Watson Mike Bradley or any other qualified attorney approved by the City will be billed outside of the retainer at the rate of TWO HUNDRED FIFTY DOLLARS ($250.00) per hour. The City Attorney will notify the City Clerk in advance of hours worked if these attorneys are expected to bill in a single billing period. The retainer amount will be prorated by calendar day in any month in which this Agreement does not extend over a full calendar month. All time is billed in tenth of an hour increments, rounding up to the nearest tenth. The parties agree that this retainer model and the hourly rates charged for the City Attorney’s services contracted for herein will remain locked in for the initial term of this Agreement as set forth in Section 9, below; and that the retainer and/or rates that will apply to any renewal term(s) may be negotiated by the parties. B. When services require travel to Port Orchard, one round trip per week by Sharon Cates will not be billed. Any remaining travel time in the same week will be charged at one hour of her applicable hourly rate each way. The travel time of an attorney other than Sharon Cates will be charged at one hour of that attorney's applicable hourly rate each way. C. Expenses, including but not limited to the following, will be reimbursed by the City when the City Attorney incurs such expenses on behalf of the City, at cost with no mark-up: filing fees and other court charges; copying and scanning charges; service of process fees; delivery and courier fees; mediation and arbitration fees; and expert witness and court reporter fees. No separate charges will be billed for the following ordinary costs of doing business: local and long distance telephone charges; postage; meals; clerical staff work; supplies; word processing; and computerized legal research services (Westlaw). 6. Invoicing A. The City Attorney will use the City’s routing number system and will submit to the City Treasurer monthly invoices for the assigned matters describing the legal services provided during the previous calendar month. The City Attorney agrees to notify the City Clerk by e-mail when fifty (50) hours have been spent on Port Orchard matters in any one calendar month. The City Attorney will not 181 of 206 charge for duplicate services performed by more than one person or for services to correct attorney errors or oversights. B. The City Attorney’s monthly invoices will include, at a minimum, the following information for each specific matter to which such services or costs pertain: routing number, the name of the matter, a brief description of the legal services performed; the date that the services were performed; and the amount of time spent on each date services were performed and by whom. In addition to providing copies of all documents as specified below, the City Attorney will provide any information that will assist the City in performing a thorough review and/or audit of the invoices, as may be requested by the City. The City Attorney will ensure that no confidential information appears on invoices, and that no additional legal review of the City Attorney’s invoices will be required in order to respond to a request for disclosure under the Public Records Act. C. Unless the City objects to all or any portion of the City Attorney’s invoice, the City will pay the City Attorney for services rendered and allowable expenses incurred within thirty (30) days after receipt of an invoice separately detailing such services rendered and expenses incurred during the applicable period. The invoice will set forth the retainer amount, the allowable expenses, and any fees for extra-retainer work provided. If the City objects to all or any portion of any invoice, it will so notify the City Attorney of the same within fifteen (15) days from the date of receipt of the invoice and will pay that portion of the invoice not in dispute, and the parties will immediately make every effort to settle the disputed portion. 7. Maintenance and Inspection of Records A. The City Attorney will maintain books, records and documents, which sufficiently and properly reflect all direct and indirect costs related to the performance of this Agreement and will maintain such accounting procedures and practices as may be necessary to assure proper accounting of all funds paid pursuant to this Agreement. These records will 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. B. The City Attorney will retain all books, records, documents and other material relevant to this Agreement, for six (6) years after its expiration. The City Attorney agrees that the City or its designee will have full access and right to examine any of said materials at all reasonable times during said period. 8. Termination A. The City and the City Attorney each reserve the right to terminate or suspend this Agreement at any time, with or without cause, upon thirty (30) days’ prior written notice to the other party. In the event of termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the City Attorney pursuant to this Agreement, will be submitted to the City. B. In the event this Agreement is terminated or suspended, the City Attorney will be entitled to payment for all services performed and reimbursable expenses incurred up to the date of termination. C. The City may cancel or terminate this Agreement immediately if the City Attorney’s insurance coverage is canceled for any reason or if the City Attorney is unable to perform the services called for by this Agreement. 182 of 206 D. This section will not prevent the City from seeking any legal remedies it may otherwise have for the violation or nonperformance of any provision of this Agreement. 9. Term / Renewal This Agreement will be in full force and effect for an initial term beginning on the date of execution ("effective date") set forth below and ending on December 31, 2017, unless sooner terminated under the provisions of this Agreement. Time is of the essence for this Agreement in each and all of its provisions in which performance is required. Unless sooner terminated, this Agreement will automatically renew for two (2) one-year renewal terms under the same terms as set forth herein, unless otherwise agreed in writing and signed by authorized representatives of both parties. 10. Ownership and Use of Documents A. Any records, files, documents, drawings, specifications, data, or information, regardless of form or format, and all other products or materials produced by the City Attorney in connection with the services provided to the City, will be the property of the City whether the project for which they are made is executed or not. All such documents, products, and materials will be forwarded to the City at its request and may be used by the City as it sees fit. The City agrees that if the documents, products, and materials prepared by the City Attorney are used for purposes other than those intended by the Agreement, the City does so at its sole risk and agrees to hold the City Attorney harmless for such use. B. All services performed under this Agreement will be conducted solely for the benefit of the City and will not be used for any other purpose without written consent of the City. Any information relating to the services will not be released to the news media or any other source without the written permission of the City. C. The City Attorney at such times and in such forms as the City may require, will furnish to the City such statements, records, reports, data, and information as the City may request pertaining to matters covered by this Agreement. All of the reports, information, data, records, and other related materials, prepared or assembled by the City Attorney under this Agreement are potentially subject to public disclosure pursuant to Chapter 42.56 RCW. To the extent allowed by Chapter 42.56 RCW, reports, information, data, records, and other related materials prepared or assembled by the City Attorney under this Agreement that contain information that is personal and wherein a right to privacy exists, or that falls under a statutorily-specified exemption from disclosure, will be exempt from disclosure. Generally, Chapter 42.56 RCW requires disclosure of all but the most personal and sensitive information in City hands. 11. Independent Contractor A. The parties intend that an independent contractor relationship will be created by this Agreement. The City will not exercise control and direction over the work of the City Attorney, and is interested primarily in the results to be achieved. Subject to the provisions herein, the implementation of services pursuant to this Agreement will lie solely within the discretion of the City Attorney. No agent, employee, servant or representative of the City Attorney will be deemed to be an employee, agent, servant or representative of the City for any purpose, and the employees of the City Attorney are not entitled to any of the benefits the City provides for its employees. The City Attorney will be solely and entirely responsible for its acts and for the acts of its agents, employees, servants, subcontractors or representatives during the performance of this Agreement. B. In the performance of the services herein contemplated the City Attorney is an independent contractor with the authority to control and direct the performance of the details of the 183 of 206 work; however, the results of the work contemplated herein must meet the approval of the City and will be subject to the City's general rights of inspection and review to secure the satisfactory completion thereof. C. As an independent contractor, the City Attorney will be responsible for the reporting and payment of all applicable local, state, and federal taxes. D. The City may at its sole discretion require the City Attorney to remove an employee(s), agent(s), or subcontractor(s) from employment on this project. The City Attorney may however employ that (those) individual(s) on other non-City related projects. 12. Indemnification / Hold Harmless A. The City Attorney will 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 City Attorney in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. The City’s inspection or acceptance of any of the City Attorney’s work when completed will not be grounds to avoid any of these covenants of indemnification. The provisions of this section will survive the expiration or termination of this Agreement. B. 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 City Attorney and the City, its officers, officials, employees, and volunteers, the City Attorney’s liability, including the duty and cost to defend hereunder will be only to the extent of the City Attorney’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the City Attorney’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 will survive the expiration or termination of this Agreement. C. No liability will attach to the City by reason of entering into this Agreement except as expressly provided herein. 13. Insurance A. The City Attorney will 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 City Attorney, its agents, representatives, or employees. B. No Limitation. The City Attorney’s maintenance of insurance as required by this Agreement will not be construed to limit the liability of the City Attorney 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 C. The City Attorney will obtain insurance of the types described below: 1) Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage will be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy will be endorsed to provide contractual liability coverage. 184 of 206 2) Commercial General Liability insurance will be written on ISO occurrence form CG 00 01 and will cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City will be named as an insured under the City Attorney’s Commercial General Liability insurance policy with respect to the work performed for the City. 3) Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4) Professional Liability insurance appropriate to the City Attorney’s profession. Minimum Amounts of Insurance D. The City Attorney will maintain the following insurance limits: 1) Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2) Commercial General Liability insurance will be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3) Professional Liability insurance will be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. E. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: 1) The City Attorney’s insurance coverage will be primary insurance with respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City will be excess of the City Attorney’s insurance and will not contribute with it. 2) The City Attorney’s insurance will be endorsed to state that coverage will 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. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VIL G. Verification of Coverage. The City Attorney will 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 City Attorney before commencement of the work. H. Notice of Cancellation. The City Attorney will provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. I. Failure to Maintain Insurance. Failure on the part of the City Attorney to maintain the insurance as required will constitute a material breach of contract, upon which the City may, after giving five (5) business days’ notice to the City Attorney to correct the breach, immediately terminate this Agreement 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 to the City Attorney from the City. J. Subcontractors. The City Attorney will include all subcontractors as insureds under its policies or will furnish separate certificates and endorsements for each subcontractor. All coverage for 185 of 206 subcontractors will be subject to all of the same insurance requirements as stated herein for the City Attorney. 14. Treatment of Assets Title to all property furnished by the City will remain in the name of the City and the City will become the owner of any work product and other documents prepared pursuant to this Agreement. 15. Licenses The City Attorney warrants that all of its attorneys are members in good standing with the Washington State Bar, and that any license or licenses that are required in order to perform the legal services under this Agreement have been obtained and are valid. 16. Conflict of Interest The City Attorney warrants and covenants that it presently has no interest in, nor will any interest be hereinafter acquired in, any matter which will render the services required under the provisions of this Agreement a violation of any applicable state, local or federal law or any rule of professional conduct. In the event that any conflict of interest should nevertheless hereinafter arise, the City Attorney will promptly notify the City of the existence of such conflict of interest. 17. Confidentiality The City Attorney agrees to maintain in confidence and not disclose to any person, association, or business, without prior written consent of the City, any secret, confidential information, knowledge or data relating to the products, process or operation of the City and/or any of its departments and divisions. The City Attorney further agrees to maintain in confidence and not disclose to any person, association, or business any data, information or material developed or obtained by the City Attorney during the term of this Agreement. The covenants contained in this paragraph will survive the termination of this Agreement for whatever cause. 18. Rules of Professional Conduct All services provided by the City Attorney under this Agreement will be performed in accordance with the Rules of Professional Conduct for attorneys established by the Washington Supreme Court. 19. Political Activity Prohibited None of the funds, materials, property or services provided directly or indirectly under this Agreement will be used for any partisan political activity, or to further the election or defeat of any candidate for public office. 20. Assignment and Subcontracting A. The City Attorney will not assign its performance under this Agreement or any portion of this Agreement without the written consent of the City, and it is further agreed that said consent must be sought in writing by the City Attorney not less than thirty (30) days prior to the date of any proposed assignment. The City reserves the right to reject without cause any such assignment. B. Any work or services assigned hereunder will be subject to each provision of this Agreement and proper bidding procedures where applicable as set forth in local, state and/or federal statutes, ordinances and guidelines. 186 of 206 C. Any technical/professional service subcontract not listed in this Agreement, must have express advance approval by the City. 21. Nondiscrimination A. The City is an equal opportunity employer. In all services, programs or activities, and all hiring and employment made possible by or resulting from this Agreement, there will be no discrimination by the City Attorney or by its employees, agents, subcontractors or representatives against any person because of race, religion, color, gender, pregnancy, age (except minimum age and retirement provisions), marital status, military or veteran status, national origin, sensory, mental or physical disability, sexual orientation (including gender identity and gender expression), genetic information, or any other category protected by federal, state, or local law. This requirement will apply, but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The City Attorney will not violate any of the terms of Chapter 49.60 RCW, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973 or any other applicable federal, state, or local law or regulation regarding non-discrimination. Any material violation of this provision will be grounds for termination of this Agreement by the City and, in the case of the City Attorney's breach, may result in ineligibility for further City agreements. B. If any assignment and/or subcontracting has been authorized by the City, said assignment or subcontract will include appropriate safeguards against discrimination. The City Attorney will take such action as may be required to ensure full compliance with the provisions in the immediately preceding paragraphs herein. 22. General Administration and Management The City’s contract manager will be the Mayor or his designee. 23. Amendments Either party may request amendments to the scope of services and performance to be provided hereunder; however, no amendment to this Agreement will be valid or binding upon either party unless such amendment be reduced to writing and signed by both parties. Such amendments will be attached to and made part of this Agreement. 24. Notices Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, or by a nationally recognized overnight courier service. Notices sent by registered or certified mail will be effective on the date the return receipt was signed. Notices sent by nationally recognized overnight courier service will be effective on the date of receipt. A courtesy copy of notice may be provided by electronic mail but will not suffice as required written notice under the terms of this Agreement. To the City: City of Port Orchard Robert Putaansuu, Mayor 216 Prospect Street Port Orchard, WA 98366 (360) 876-4407 To Lighthouse: Lighthouse Law Group PLLC Sharon Cates, Managing Member 600 Stewart Street, Suite 400 Seattle, WA 98101 (206) 273-7440 187 of 206 25. Interpretation and Venue A. This Agreement has been and will be construed as having been made and delivered within the State of Washington, and it is agreed by each party hereto that this Agreement will be governed by laws of the State of Washington, both as to interpretation and performance. B. Any action of law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof will be instituted and maintained only in any of the courts of competent jurisdiction in Kitsap County, Washington. 26. Attorney Fees and Costs If any legal proceeding is brought for the enforcement of this Agreement, or because of a dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief to which such party may be entitled, reasonable attorney’s fees and other costs incurred in that action or proceeding. 27. Severability A. If for any reason, any part, term or provision of this Agreement is held by a court of the United States to be illegal, void or unenforceable, the validity of the remaining provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. B. If it should appear that any provision hereof is in conflict with any statutory provision of the State of Washington, said provision which may conflict therewith will be deemed inoperative and null and void insofar as it may be in conflict therewith, and will be deemed modified to conform to such statutory provisions. 28. Entire Agreement and Waiver This Agreement contains a complete integrated understanding and agreement between the parties and supersedes any understanding, agreement, or negotiations whether oral or written not set forth herein or in any written amendments hereto duly executed by both parties. Specifically, this Agreement supersedes the City’s agreement with Lighthouse Law Group PLLC for employment and labor law services (Contract No. 053-15, dated April 27, 2015). It is also agreed by the parties that the forgiveness of the non-performance of any provision of this Agreement does not constitute a waiver of any other provision of this Agreement. All provisions of the Agreement not revised by this Amendment No. 2 shall remain in full force and effect. All provisions of the Agreement revised by this Amendment No. 2 shall become effective on July 1, 2018. DATED this 26th day of June 2018. CITY OF PORT ORCHARD LIGHTHOUSE LAW GROUP PLLC ______________________________ ___________________________________ Robert Putaansuu, Mayor Sharon Cates, Managing Member ATTEST: ______________________________ Brandy Rinearson, MMC, City Clerk 188 of 206 AMENDMENT NO. 1 to AGREEMENT FOR CITY ATTORNEY SERVICES Contract No. 018-16 This AMENDMENT No. 1 to Contract No. 018-16 is made and entered into between the City of Port Orchard, Washington, a Washington municipal corporation (the “City”) and Lighthouse Law Group PLLC, a Washington Professional Limited Liability Company (the “City Attorney”). In consideration of the mutual benefits and covenants contained herein, the parties agree that their underlying Agreement for City Attorney Services, numbered as City of Port Orchard Contract No. 018-16, and executed on February 10, 2016, shall be amended as follows: Effective October 1, 2017, Section 5 (“Compensation”) is amended to read as follows: 1. 5. Compensation A. The City hereby agrees to pay the City Attorney a monthly retainer amount of TWELVE THOUSAND TWO HUNDRED FIFTY DOLLARS ($12,250.00). Under this retainer model, the City Attorney will provide up to sixty-seven (67) hours of legal services per calendar month. Up to sixty (60) of these legal services hours may be provided by Sharon Cates, Patricia Taraday, Beth Ford and Desiree Phair, and will be billed at an hourly rate of ONE HUNDRED SEVENTY-FIVE DOLLARS ($175.00) per hour. Up to an additional seven (7) of these legal services hours may be provided by Jeff Taraday, and will be billed at an hourly rate of TWO HUNDRED FIFTY DOLLARS ($250.00) per hour. Any work performed by Rosa-Fruehling Watson or Mike Bradley will be billed at the rate of TWO HUNDRED FIFTY DOLLARS ($250.00) per hour. The City Attorney will notify the City if either of these two attorneys is expected to bill more than five (5) hours in a single billing period. The retainer amount will be prorated by calendar day in any month in which this Agreement does not extend over a full calendar month. If more than $12,250.00 in legal services is billed in a given calendar month, additional legal services will be billed on an hourly basis at each attorney’s extra-retainer rates as follows: Sharon Cates, Patricia Taraday, Beth Ford or Desiree Phair - $190.00; Jeff Taraday - $265.00; Rosa Fruehling- Watson or Mike Bradley - $250.00. All time is billed in tenth of an hour increments, rounding up to the nearest tenth. The parties agree that this retainer model and the hourly rates charged for the City Attorney’s services contracted for herein will remain locked in for the initial term of this Agreement as set forth in Section 9, below; and that the retainer and/or rates that will apply to any renewal term(s) may be negotiated by the parties. 189 of 206 B. When services require travel to Port Orchard, one round trip per week by Sharon Cates will not be billed. Any remaining travel time in the same week will be charged at one hour of her applicable hourly rate each way. The travel time of an attorney other than Sharon Cates will be charged at one hour of that attorney’s applicable hourly rate each way. C. Expenses, including but not limited to the following, will be reimbursed by the City when the City Attorney incurs such expenses on behalf of the City, at cost with no mark-up: filing fees and other court charges; copying and scanning charges; service of process fees; delivery and courier fees; mediation and arbitration fees; and expert witness and court reporter fees. No separate charges will be billed for the following ordinary costs of doing business: local and long distance telephone charges; postage; meals; clerical staff work; supplies; word processing; and computerized legal research services (Westlaw). 2.All other provisions of the Agreement shall remain unchanged and in full force and effect. DATED this 10th day of October 2017. CITY OF PORT ORCHARD LIGHTHOUSE LAW GROUP PLLC sShbron Cates, Managing MemberRobert Putaansuu, Mayor ATTEST: Brandy Rinearson, CMC, City Clerk I I SEAL : |V>K 190 of 206 191 of 206 192 of 206 193 of 206 194 of 206 195 of 206 196 of 206 197 of 206 198 of 206 199 of 206 200 of 206 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 7G Meeting Date: June 26, 2018 Subject: Discussion: Hanley Property – Proposed Prepared by: Nicholas Bond, AICP Kitsap County Comprehensive Plan DCD Director Amendment Atty Routing No.: N/A Atty Review Date: N/A Issue: Kitsap County is considering a comprehensive plan amendment request to redesignate 3 adjacent parcels totaling 1.03 acres, from Urban High Density Residential to Urban High Intensity Commercial. The property, which is owned by Hanley Property LLC, is located on Fircrest Drive SE, south of SE Mile Hill Road, in the City’s unincorporated urban growth area (UGA). The current use of the property, which is a construction and equipment yard and office for Hanley Construction, is nonconforming to the existing residential land use designation and zoning. A construction and equipment yard is considered an industrial use in the City’s comprehensive plan and zoning code. It is also listed as an industrial use (contractor’s storage yard) in the County’s land use table, KCC 17.410.044. Therefore, the County’s proposal to redesignate this property’s land use from residential to commercial would not resolve the nonconforming use issue. In future, the existing industrial use could be replaced by commercial uses, but a commercial land use designation would not allow expansion of the existing nonconforming industrial use. It is therefore difficult to understand what advantage would accrue to the property owner from the proposed redesignation. It would also be inappropriate for the County to redesignate the property as industrial, since the surrounding properties are residential, and a majority of the industrial uses that could be developed and operated on the site would be incompatible with the adjacent residential uses. If the County wishes to redesignate the property to allow the property owner to operate a conforming land use and/or expand the current use, an area-wide redesignation of this property and the surrounding residential properties to an industrial land use should be considered. This would prevent a “piecemeal” land use change which would prolong the existence of a nonconforming use, and which could potentially create an island of more intense and incompatible land uses in an area that is currently intended for future residential development. At the June 12 Council meeting, Council voted to send a comment letter on the proposed rezone and comp plan amendment to Kitsap County. Now, the Mayor has requested revisions to the previous letter, as shown on the attached revised draft letter. The revisions as proposed include a suggestion that the County create a light industrial zone which would be more compatible with the surrounding development, and which would allow the existing use to remain, operate, and expand, but would not open the door to new heavier industrial uses. 201 of 206 Relationship to Comprehensive Plan: Policy LU-1 Ensure that land use and zoning regulations maintain and enhance existing single-family residential neighborhoods, while encouraging that new development provides a mixed range of housing types. Policy LU-2 Limit industrial development to locations accessible from arterials or freeways and discourage industrial access through residential areas. Policy LU-26 Require adequate transitions between different land uses to mitigate potential negative impacts of noise, light, and air pollution. Recommendation: Staff recommends that the City Council discuss the revised draft letter and consider sending the revised draft letter to the County. Motion for consideration: (Optional) “I move to direct staff to finalize and send the revised attached letter to Kitsap County regarding the Hanley Comprehensive Plan Amendment as presented.” Fiscal Impact: This proposal is not expected to impact the City’s budget. Alternatives: Direct staff to revise the draft letter; or, do not send a revised letter to the County. Attachments: Revised draft letter to Kitsap County re Hanley Amendment (clean and redline versions). 202 of 206 June 26, 2018 Kitsap County DCD Attn: Darren Gurnee 619 Division Street Port Orchard, WA 98366 Re: Comprehensive Plan Amendment 18-00528 – Hanley Map Amendment Dear Kitsap County Planning Commission, Thank you for the opportunity to comment on the proposed Hanley Property LLC Comprehensive Plan Amendment 18-00528. The City Council would like to offer the following comments on this proposed amendment: The proposed land use change for 3 properties from Urban High Residential to Urban High Commercial appears as if it would create an island of commercial property surrounded by residential property. If zoning is to be changed from residential to commercial, the change should be area wide and result in regular boundaries rather than the current piecemeal rezone proposal. The City would also like to express concern about the current use of this property relative to the zoning sought. It appears that the current use of the property as a construction and equipment yard and office is non-conforming to both the current and proposed zones. Rezones should be considered based on how the County feels property should be used in the future. If an existing use is a legal nonconforming use, it may remain in its current location but should not be expanded. If the County feels that the use should be expanded, then appropriate zoning should be provided, in this case Industrial (IND). However, the decision to rezone should consider not just the expansion of the current nonconforming use, but all possible uses that could be permitted under the new designation. In this case, Industrial (IND) zoning and many of the heavy industrial uses that could be permitted under that zoning designation would be incompatible with the established residential uses in the vicinity of this site. However, were the County to create a light industrial zone to allow low impact industrial uses that would be more compatible with the surrounding residential areas, the City could support an area wide rezone to light industrial with regular boundaries, rather than a site-specific rezone only involving a few parcels. On June 26, 2018, the Port Orchard City Council directed me to withdraw the comments provided in the City’s June 13, 2018 letter, and to restate their opposition to the proposed rezone for the reasons indicated above. Please note that Councilmember Scott Diener was not present at the June 26, 2018 meeting. Please feel free to contact my office should you have any questions. Sincerely, Nicholas Bond, AICP City Development Director 203 of 206 204 of 206 June 1326, 2018 Kitsap County DCD Attn: Darren Gurnee 619 Division Street Port Orchard, WA 98366 Re: Comprehensive Plan Amendment 18-00528 – Hanley Map Amendment Dear Kitsap County Planning Commission, Thank you for the opportunity to comment on the proposed Hanley Property LLC Comprehensive Plan Amendment 18-00528. The City Council would like to offer the following comments on this proposed amendment: The proposed land use change for 3 properties from Urban High Residential to Urban High Commercial appears as if it would create an island of commercial property surrounded by residential property. If zoning is to be changed from residential to commercial, the change should be area wide and result in regular boundaries rather than the current piecemeal rezone proposal. The City would also like to express concern about the current use of this property relative to the zoning sought. It appears that the current use of the property as a construction and equipment yard and office is non-conforming to both the current and proposed zones. Rezones should be considered based on how the County feels property should be used in the future. If an existing use is a legal nonconforming use, it may remain in its current location but should not be expanded. If the County feels that the use should be expanded, then appropriate zoning should be provided, in this case Industrial (IND). However, the decision to rezone should consider not just the expansion of the current non-conforming use, but all possible uses that could be permitted under the new designation. In this case, rezoning the property to Industrial (IND) should not be approvedzoning and many of the heavy industrial uses that could be permitted under that zoning designation would be incompatible with the established residential uses in the vicinity of the this as a majority of industrial uses allowed under the Industrial (IND) zone would be incompatible with the surrounding residential zoning. site. However, were the Ccounty to create a light industrial zone to allow low impact industrial uses that would be more compatible with the surrounding residential areas, the City could support an area wide rezone to light industrial with regular boundaries, rather than a site-specific rezone only involving a few parcels. On June 1226, 2018, the Port Orchard City Council directed me to provide these comments , to withdraw theour previous comments provided in the City’sour June 13, 2018 letter, and to restate their opposition to the proposed rezone for the reasons indicated above. Please note that Councilmember Scott Diener recused himself from the discussion of this issuewas not present at the June 1226, 2018 meeting. Please feel free to contact my office should you have any questions. 205 of 206 Sincerely, Nicholas Bond, AICP City Development Director 206 of 206