Loading...
10/12/2021 - Regular - PacketMayor: Rob Putaansuu Administrative Official Councilmembers: BekAshby (Mayor Pro-Tempore) Finance Committee Economic Development & Tourism Committee Transportation Committee, Chair KRCC/KRCC PlanPol-alt /KRCC TransPol PSRC-alt/PSRC TransPOL-Alt/PRTPO Shawn Cucciardi Finance Committee E/D & Tourism Committee, Chair Kitsap Economic Development Alliance Fred Chang Economic Development & Tourism Committee Land Use Committee Jay Rosa pepe Utilities/Sewer Advisory Committee Land Use Committee, Chair Transportation Committee Lodging Tax Advisory Committee, Chair KRCC-alt John Clauson Finance Committee, Chair Utilities/Sewer Advisory Committee Kitsap Public Health District-alt Cindy Lucarelli Festival of Chimes & Lights Committee, Chair Utilities/Sewer Advisory Committee, Chair Kitsap Economic Development Alliance Scott Diener Land Use Committee Transportation Committee Department Directors: Nicholas Bond, AICP Development Director Mark Dorsey, P.E. Director of Public Works/City Engineer Tim Drury Municipal Court Judge Noah Crocker, M.B.A. Finance Director Matt Brown Police Chief Brandy Rinearson, MIMIC, CPRO City Clerk Meeting Location: Council Chambers, 3rd Floor 216 Prospect Street Port Orchard, WA 98366 Contact us: (360) 876-4407 cityhall@cityofportorchard.us City of Port Orchard Council Meeting Agenda October 12, 2021 6:30 p.m. The City is conducting its public meetings remotely to prevent the spread of COVID. The City is providing options for the public to attend through telephone, internet or other means of remote access, and also provides the ability for persons attending the meeting (not in -person) to hear each other at the same time. Therefore, Remote access on Link: https://us02web.zoom.us/o/87976276439 Webinar ID: 879 7627 6439 Call -In: 1 253 215 8782 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. If you are attending remotely via telephone, enter *9 from your keypad to raise your hand.) 4. CONSENT AGENDA (Approval of Consent Agenda passes all routine items listed below, which have been distributed to each Councilmember for reading and study. Consent Agenda items are not considered separately unless a Councilmember so requests. In the event of such a request, the item is returned to Business Items.) A. Approval of Vouchers and Electronic Payments B. Approval of Payroll and Direct Deposits C. Adoption of an Ordinance Amending Ordinance No. 047-21 to Authorize a Letter of Credit with Kitsap Bank for DNR Lease Assignment to Increase Amount to $18,350 (Archer) Page 3 D. Adoption of a Resolution Adopting an Amended Tourism Promotion Strategic Plan (Rinearson) Page 6 E. Approval of Amendment No. 2 to Contract No. 074-14 with Dude Solutions, Inc. for SmartGov Subscription (Bond) Page 31 F. Approval of the September 21, 2021, City Council Work Study Meeting Minutes Page 88 G. Approval of the September 28, 2021, City Council Meeting Minutes Page 91 S. PRESENTATION A. Kitsap County Proposition No. 2 Kitsap 911 Emergency Communication Systems (Fire Chief Faucett) 6. PUBLIC HEARING 7. BUSINESS ITEMS A. Adoption of an Ordinance Approving a Contract with the Washington State Public Works Board for the 390 Zone Low Pressure Booster Station Project and Ratifying the Mayor's Signature (Dorsey) Page 98 B. Adoption of an Ordinance Approving a Contract with the Washington State Public Works Board for the Melcher Pump Station Rehabilitation Project and Ratifying the Mayor's Signature (Dorsey) Page 132 C. Adoption of an Ordinance Approving a Contract with the Washington State Public Works Board for the Sewer Lift Station Controls Upgrades Protect and Ratifying the Mayor's Signature (Dorsey) Page 166 D. Adoption of a Resolution Approving Amendment No. 3 to Contract No. 066-20 with Rice Fergus Miller for Phase 1 of the South Kitsap Community Events Center (SKCEQ (Bond) Page 200 E. Approval of a Contract with Avidex for Upgrading the Audio/Visual Capabilities in the Council Chambers (Crocker) Page 224 F. Approval of a Road Closure for a Special Event, Yukon Do It! Winter Edition (Rinearson) Page 263 8. DISCUSSION ITEMS (No Action to be Taken) 9. REPORTS OF COUNCIL COMMITTEES 10. REPORT OF MAYOR 11. REPORT OF DEPARTMENT HEADS 12. CITIZEN COMMENTS (Please limit your comments to 3 minutes for any items not up for Public Hearing. When recognized by the Mayor, please state your name for the official record. If you are attending remotely via telephone, enter *9 from your keypad to raise your hand.) 13. EXECUTIVE SESSION: Pursuant to RCW 42.30.110, the City Council may hold an executive session. The topic(s) and the session duration will be announced prior to the executive session. 14. CITY COUNCIL GOOD OF THE ORDER COMMITTEE MEETINGS --------------- Economic Development and Tourism Utilities Land Use Festival of Chimes & Lights Finance Transportation Sewer Advisory Lodging Tax Outside Agency Committees Date & Time Location November 8, 2021; 9:30am — 2nd Monday of Remote Access each month October 12, 2021; 5:00pm Remote Access October 21, 2021; 4:30pm Remote Access October 18, 2021; 3:30pm — 3rd Monday of each Remote Access month October 7, 2021; 3:00pm Remote Access October 26, 2021; 5:00pm; 4t" Tuesday of each Remote Access month October 20, 2021; 6:30pm Remote Access October, 2021 Remote Access Varies Varies Please turn off cell phones during meeting and hold your questions for staff until the meeting has been adjourned. The Council may consider other ordinances and matters not listed on the Agenda, unless specific notification period is required. Meeting materials are available on the City's website at: www.cityofportorchard.us or by contacting the City Clerk's office at (360) 876-4407. The City of Port Orchard does not discriminate on the basis of disability. Contact the City Clerk's office should you need special accommodations. October 12, 2021, Meeting Agenda Page 2 of 2 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 4C Subject: Adoption of an Ordinance Amendi Ordinance No. 047-21 to Authorize a Letter of Credit with Kitsap Bank for DNR Lease Assignment to Increase Amount to $18,350 Back to Agenda Meeting Date: October 12, 2021 Prepared by: Charlotte Archer City Attorney Atty Routing No.: 366922.0007 — Finance Atty Review Date: October 7, 2021 Summary: As part of the City's purchase of the Kitsap Bank headquarters for the future Community Events Center, the City has agreed to assume an existing lease of state-owned aquatic lands between Kitsap Bank and the Washington State Department of Natural Resources, Lease No. 22-A02336. Due to the existing improvement on the leased area, DNR requires a security in the amount of the yearly rent. On September 28, 2021, Council adopted an Ordinance authorizing the Mayor to accept a letter of credit (LOC) from Kitsap Bank in the amount of $18,000 to meet DNR's requirement. DNR requires the amount to be $18,350; this Ordinance would amend the earlier Ordinance to increase the amount of the authorized LOC by $350. Relationship to Comprehensive Plan: N/A Recommendation: Staff recommends approving the council approve the amending Ordinance, and authorize the Mayor to enter into a Letter of Credit with Kitsap Bank in order to satisfy DNR's requirements. Motion for consideration: "I move to adopt an ordinance, amending Ordinance No. 047-21 to authorize the mayor to accept a Letter of Credit in the amount of $18,350 related to the Community Event Center project." Fiscal Impact: Letter of Credit: $18,350 (to serve as security). Alternatives: Do not approve and provide alternative guidance. Attachment: Ordinance. Page 3 of 298 Back to Agenda ORDINANCE NO. AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AMENDING ORDINANCE NO. 047-21, AUTHORIZING ACTIONS RELATED TO PORT ORCHARD BORROWING FROM KITSAP BANK FOR SECURITY FOR A LEASEHOLD ON DNR ACQUATIC LANDS FOR THE FUTURE SOUTH KITSAP COMMUNITY CENTER; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, the City Council authorized the Mayor to execute a Purchase and Sale Agreement for the existing Kitsap Bank Building located at 619 Bay Street (the "Property"); and WHEREAS, subsequent to the purchase and sale agreement, the Port Orchard City Council authorized the Mayor to execute an assignment of a Kitsap Bank leasehold on Washington State Department of Natural Resources ("DNR") owned aquatic -lands, identified as Kitsap County Tax Parcel No. 262401-1-001-2004; and WHEREAS, DNR requires security from Port Orchard for the lease in the amount of the yearly rent; and WHEREAS, on September 28, 2021, by Ordinance the Council authorized the Mayor to execute a letter of credit from Kitsap Bank in the amount of $18,000 to meet DNR's requirements and provide the security for the lease; WHEREAS, at the request of DNR the letter of credit should be $18,350, and the Council approves of that amount; WHEREAS, Port Orchard is authorized by chapters 35A.40 and 39.36 RCW to borrow money; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The Port Orchard City Council hereby amends Ordinance No. 047-21 at Section 1 to authorize the Mayor to obtain from Kitsap Bank a letter of credit for $18,350 to serve as security for a leasehold on Washinton State Department of Natural Resources owned aquatic -lands acquired for the for the South Kitsap Community Events Center. The Council ratifies all prior actions taken consistent with this authorization. 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. Page 4 of 298 Back to Agenda Ordinance No. Page 2 of 2 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 121" day of October 2021. ATTEST: Robert Putaansuu, Mayor SPONSOR: Brandy Rinearson, MMC, City Clerk John Clauson, Councilmember e��:• � e�il�il7� Charlotte A. Archer, City Attorney PUBLISHED: EFFECTIVE DATE: Page 5 of 298 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Consent Agenda 4D Subject: Adoption of a Resolution Adopting an Amended Tourism Promotion Strategic Plan Back to Agenda Meeting Date: October 12, 2021 Prepared by: Brandy Rinearson, MMC Atty Routing No. Atty Review Date City Clerk N/A N/A Summary: The Economic Development Tourism Committee was tasked to develop a tourism promotion strategic plan in 2017. The Committee sought input from Lodging Tax Committee Members, Chamber of Commerce Director, and Port Orchard Bay Street Association board members. The plan is to guide the lodging tax advisory committee on the Council's vision for Tourism and to enhance tourism promotion. The plan was re -presented and discussed at the September 13, 2021, Economic Development Tourism Committee. The Committee recommended updating the allocation amounts with the most recent years and place that information as an Appendix, update the 5 Year Collection History graph, and other minor changes outlined in the redline version of the plan. The plan has been updated to reflect the discussion held at that meeting. Recommendation: Staff recommends approval of the plan, as presented. Relationship to Comprehensive Plan: The plan is consistent with the Comprehensive Plan. Motion for consideration: I move to adopt a resolution adopting the Tourism Promotion Strategic Plan, as presented. Fiscal Impact: N/A Alternatives: Not approve of the plan and provide direction to staff. Attachments: Resolution, Draft Plan redline, final and Resolution. Page 6 of 298 Back to Agenda RESOLUTION NO. A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON ADOPTING AN AMMENDED TOURISM PROMOTION STRATEGIC PLAN. WHEREAS, tourism is a basic component of the City's economy and affects every resident; and WHEREAS, a strategic plan consisting of the priorities of the City is needed to guide the lodging tax process and ensure that the Council clearly communicates its priorities to City staff and the public; and WHEREAS, the Economic Development Tourism Committee conducted strategic planning sessions to determine the priorities for the City and the initial indicators needed to measure progress towards achieving these priorities; and WHEREAS, the Economic Development Tourism Committee developed a Tourism Promotion Strategic Plan; WHEREAS, the Economic Development Tourism Committee reviewed the 2017-2018 Tourism Promotion Strategic Plan and recommends some minor changes; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: the City of Port Orchard adopts the amended Tourism Promotion Strategic Plan, attached as Exhibit A. 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 121" day of October 2021. ATTEST: Brandy Rinearson, MMC, City Clerk Robert Putaansuu, Mayor Page 7 of 298 Back to Agenda CITY OF PORT ORCHARD TOURISM PROMOTION STRATEGIC PLAN Page 8 of 298 Page 1 of 12 Back to Agenda Tourism Promotion Strategic Plan Contents Background .................................................................................................................................................................... 3 Strategic Planning......................................................................................................................................................3 Lodging Tax................................................................................................................................................................3 The Lodging Tax Advisory Committee .......................................................................................................................3 Use of Lodging Tax Revenues ....................................................................................................................................3 Definitions..................................................................................................................................................................... ............4 Application and Reporting Requirements .................................................................................................................4 Revenue History and Projections .............................................................................................................................. 5 Allocation Process ..................................................................................................................................................... 5 Recent Allocations ..................................................................................................................................................... 6 Mission, Vision, and Commitments ...............................................................................................................................7 Value Statement....................................................................................................................................................... .7 Our Vision .................................................................................................................................................................. 7 Our Mission ...............................................................................................................................................................7 Strategic Commitments.............................................................................................................................................7 Goals, Strategies, and Action Items Page 9 of 298 Page 2 of 12 7 Back to Agenda Goals ..8 Strategies .................................................................................................................................................................. 8 Action Items .............................................................................................................................................................. 8 The Comprehensive Plan........................................................................................................................................................8 At a Glance ................................................................................................................................................................ 8 City Leadership on Tourism and Culture..............................................................................................................................9 Allocation Process...................................................................................................................................................................9 General Standards for Allocations......................................................................................................................................10 Event Funding........................................................................................................................................................................ 10 Marketing and Promotion Funding....................................................................................................................................10 Community Building.............................................................................................................................................................11 Appendix A Recent Allocations......................................................................................................................12 Background Strategic Planning In January 2016, the City Council tasked the Economic Development Tourism committee to develop a strategic plan for tourism promotion. The committee focused on how the City can best leverage its lodging tax revenue and guide the Lodging Tax Advisory Committee. Lodging Tax Page 10 of 298 Page 3 of 12 The City of Port Orchard collects a 2% tax on the furnishing of lodging within the City, called 1 Back to Agenda tax." The tax is levied on hotels, motels, bed and breakfasts, and other such businesses offering transient occupancy. The Lodging Tax Advisory Committee State law requires the City to establish a Lodging Tax Advisory Committee, which must review and comment on any proposal to impose, increase, repeal the lodging tax, or change the use of revenue received. The LTAC is subject to the Open Public Meetings and Public Records Act. The LTAC membership must be appointed by the Mayor and confirmed by the City Council and must include: (a) at least two members who are representatives of businesses required to collect the tax under RCW 67.28; (b) at least two members who are persons involved in activities authorized to be funded by revenue received under RCW 67.28; and (c) a City elected official, who must serve as chair of the committee, as a non -voting member. The number of members in (a) must be equal to the number of members in (b). Persons who are eligible for appointment under (a) are not eligible for appointment under (b). Terms are for one year and members are eligible for re -appointment. The City maintains a webpage about the Lodging Tax allocation process and LTAC. Use of Lodging Tax Revenues Lodging tax revenues may be used directly by any municipality or indirectly, through a convention and visitors bureau or destination marketing organization. The applicant must meet one of the following: (a) tourism marketing; (b) the marketing and operations of special events and festivals designed to attract tourists; (c) supporting the operations and capital expenditures of tourism -related facilities owned or operated by a municipality or a public facilities district; or (d) supporting the operations of tourism -related facilities owned or operated by nonprofit 501(c)(3) or (c)(6) organizations. Definitions "Applicant" means any convention and visitors bureaus; destination marketing organizations; nonprofits, including main street organizations, lodging associations, or chamber of commerce; and municipalities. "Cooperative Marketing" means collaboration by multiple organizations which promotes City tourism outside of Kitsap County. Page 11 of 298 Page 4 of 12 "Operation" includes, but it not limited to, operation, management, and marketing. Back to Agenda "Regional Marketing" means marketing that promotes the entire Kitsap County or Peninsula. "Tourism" means economic activity resulting from tourists, which may include sales of overnight lodging, meals, tours, gifts, or souvenirs. "Tourism Promotion" means activities, operations, and expenditures designed to increase tourism, including but not limited to advertising, publicizing, or otherwise distributing information for the purpose of attracting and welcoming tourists; developing strategies to expand tourism; operating tourism promotion agencies; and funding the marketing or the operation of special events and festivals designed to attract tourists. "Tourism -related facility" means real or tangible personal property with a usable life of three or more years, or constructed with volunteer labor that is: (a)(i) Owned by a public entity; (ii) owned by a nonprofit organization described under section 501(c)(3) of the federal internal revenue code of 1986, as amended; or (iii) owned by a nonprofit organization described under section 501(c)(6) of the federal internal revenue code of 1986, as amended, a business organization, destination marketing organization, main street organization, lodging association, or chamber of commerce and (b) used to support tourism, performing arts, or to accommodate tourist activities. "Tourist" means a person who is traveling or visiting a place other than his or her own municipality of residence for pleasure or business. Application and Reporting Requirements Applicants applying for use of lodging tax revenues must provide the City estimates of how any moneys received will result in increases in the number of people traveling for business or pleasure on a trip: (i) away from their place of residence or business and staying overnight in paid accommodations; (ii) to a place fifty miles or more one way from their place of residence or business for the day or staying overnight; or (iii) from another country or state outside of their place of residence or their business. Recipients must submit a report to the City describing the actual number of people traveling for business or pleasure on a trip: (A) away from their place of residence or business and staying overnight in paid accommodations; (B) to a place fifty miles or more one way from their place of residence or business for the day or staying overnight; or (C) from another country or state outside of their place of residence or their business. The City, in turn, must make those reports available to: • the City Council; Page 12 of 298 Page 5 of 12 • the public; Back to Agenda • the Lodging Tax Advisory Committee; and • the State Legislature's Joint Legislative Audit and Review Committee (JLARC). Revenue History and Projections In the last several years, the City has seen an increase in the collection of lodging tax revenue. tast- year�-sThe 2021-2022 Biennial allocation was $942000,000; $100,000 each year. The chart below shows the last five years of revenue history, grouped by month to demonstrate seasonality. New chart below: $16,000.00 $14,ODD.00 $12,000.00 $10,000.00 $S,ODD.00 $5,000.00 $4,000.00 $2,ODD.00 C_ 5 Year Collection History 43e ■ 2017 ■ 2019 ■ 2019 ■ 2020 ■ 2021 Note: that lodging taxes are received two months after the room is paid for by the customer, i.e., in the chart below, January revenues are from rooms rented in November. Allocation Process The City solicits applications from organizations eligible to receive lodging tax funds mid -summer, and LTAC considers those applications simultaneously and makes a recommendation for the following year. First-time applicants, events, or initiatives are allowed to apply at any time during the year. While state law does not prescribe a specific process for allocations, it does require the City Council to seek input from LTAC before changing the recommended allocations. The submission must occur at least forty-five (45) days before final action on or passage of the proposal by the City Council. The LTAC must select the candidates from amongst the applicants applying for use of revenues under RCW 67.28 and provide a list of such candidates and recommended amounts of funding to the City Page 13 of 298 Page 6 of 12 Council for final determination. The LTAC must submit comments on the proposal in a tir Back to Agenda through generally applicable public comment procedures. The comments must include an analysis of the extent to which the proposal will accommodate activities for tourists or increase tourism, and the extent to which the proposal will affect long-term stability to the fund created under RCW 67.27. The City Council may choose only recipients from the list of candidates and recommended amounts provided by LTAC. Failure of the LTAC to submit comments before final action on or passage of the proposal shall not prevent the City Council form acting on the proposal. The City Council is not required to submit an amended proposal to an advisory committee under Chapter 67.28. Recent Allocations Lodging tax allocations in recent years have been fairly stable. Requests and allocations received from 201514 to 202017 are listed as Appendix A.'^ the table below. Mission, Vision, and Commitments Value Statement Provide a supportive and connected community by offering a variety of year-round recreational and tourism opportunities. Our Vision The vision statement concerns the City as a community. We all recognize that our vision cannot be achieved through the efforts of City government alone. Port Orchard is a thriving northwest destination, which cultivates cultural activities, events, and festivals with positive economic impact for the benefit of residents, visitors, and local businesses alike. Our Mission The mission statement speaks explicitly to the City of Port Orchard's role in realizing our vision. Enhance the local economy and local culture by attracting visitors who stay longer, engage with our businesses, and make lasting connections. Strategic Commitments Our strategic commitments are the fundamental principles that drive the implementation of our mission and vision, and lay the groundwork for the goals, objectives, and strategies in the remainder of this plan. • Consistencywith community vision: align tourism promotion with our Comprehensive Plan. Page 14 of 298 Page 7 of 12 • Inclusiveness: make resources available to everyone and encourage participation. Back to Agenda • Cooperation: encourage, facilitate, and engage in partnerships to accomplish our shared goals. • Transparency: be clear and accountable in our actions. • Fiscal responsibility: spend lodging tax money wisely. • Compatibility: evaluate the community's capacity for cultural activities, events and festivals, and support those that are appropriate and desired. Goals, Strategies, and Action Items The essential point of any strategic plan is its goals, strategies, and action items. In this plan, these elements are grouped logically, but are not in any particular order of priority. Except when introduced by a conditional phrase, each of these elements begin with action verbs. Goals Goals are broad, high-level general statements that are not time limited —and are intended to not change from year-to-year. The strategic plan includes two types of goals: (1) services goals that articulate what things we intend to accomplish or services we intend to provide; and (2) logistical goals that articulate how we intend to conduct our work. In general, services goals relate to the services provided to the public, and the logistical goals speak to the internal mechanics of providing those services, such as cost -efficiency. Strategies Each goal is supported by strategies that articulate how to achieve the overall goals. Strategies may or may not be time -limited, and may or may not include action items. Strategies are not formal or binding policies; policies should be adopted by a policy -setting body, such as the City Council. Action Items Each action item is a specific, discrete task to implement the strategy. The action items defined in the plan may not be all of the possible or obvious actions that could implement the strategy, but are the items that we have identified as able to be implemented over the course of the plan. The Comprehensive Plan The City's 2016 Comprehensive Plan includes the following goals and policies relevant to tourism promotion: Goal 2. Policy ED-9 The City shall encourage the continuation and marketing efforts of downtown events and holiday festivals. Goal 4. Policy ED-16 Recognize and encourage tourism as a growing contribution to the economic diversity of Port Orchard. Goal 4. Policy ED-19 Maintain Port Orchard as a unique and significant waterfront destination with recreational and retail opportunities and residents. Page 15 of 298 Page 8 of 12 Back to Agenda At a Glance City Leadership on Tourism and Culture.......................................................................................................9 Goal 1 Provide Guidance and support for the coordination of tourism promotion ..............................9 AllocationProcess..........................................................................................................................................9 Goal 2 Allow flexibility in times of application submissions..................................................................9 GeneralStandards for Allocations.................................................................................................................10 Goal 3 Evaluate projects based on data.................................................................................................10 Goal 4 Ensure recipients are accountable..............................................................................................10 EventFunding.................................................................................................................................................10 Goal 5 Fund events that promote tourism.............................................................................................10 Marketing and Promotion Funding................................................................................................................10 Goal 6 Fund marketing projects.............................................................................................................10 CommunityBuilding......................................................................................................................................11 Goal 7 Work with civic and nonprofit groups to support and create visitor opportunities .....................11 City Leadership on Tourism and Culture Goal 1 Provide guidance and support for the coordination of tourism promotion. STRATEGY 1A Continue to address tourism activity through the City's Economic Development and Tourism Committee. action 1A-1 Invite representatives (up to 9 members) from the Port Orchard Bay Street Association, the Port Orchard Chamber of Commerce, LTAC, city businesses, and non -profits active in tourism to provide input and recommendations for tourism. STRATEGY 1B Offer LTAC an outline of preferred distribution of awards such as a certain % to cooperative marketing, a % to regional marketing organizations, a % for operations, and a % for first time applicants, events, or initiatives. STRATEGY 1C Increase the number of new applicants, events, and initiatives. action 1C-1 Maintain an element on the City website to support tourism and tourism promotion such as, Special Event Tool Kit, access to the Special Event Ordinance, and Lodging Tax Information. Allocation Process Goal 2 Allow flexibility in times of application submissions. Page 9 of 12 Back to Agenda STRATEGY 2A First-time applicants, events, or initiatives may apply at any time during the year. action 2A-1 Provide first-time applicants with assistance through the application process. STRATEGY 26 Recurring events apply in the normal annual cycle. action 213-1 List the prior year allocations on the website. STRATEGY 2C Comply with 45-day statutory timeline. General Standards for Allocations Goal 3 Evaluate projects based on data. STRATEGY3A Each organization submits a separate application, its project budget, statement of community economic benefit, and projected attendance or reach. action 3A-1 Evolve lodging tax applications to implement this strategic plan and collect useful data. Goal 4 Ensure recipients are accountable. STRATEGY 4A Require effective and useful State reporting. action 4A-1 Develop a template reporting form and handout on methods of reporting and tracking. action 4A-2 Modify the application to require recurring events to provide prior year reporting data in their applications. Event Funding Goal 5 Fund events that promote tourism. STRATEGY 5A Fund events with growth potential or to fill in shoulder season. STRATEGY 5B Fund events that leverage our natural resources and surroundings. STRATEGY 5C Continue to support events that contribute to local culture, such as Farmers Market. STRATEGY 5D Fund events that result in overnight stays within the City of Port Orchard STRATEGY 5E Fund events that have a high potential to attract visitors from outside the 50-mile drive radius. STRATEGY 5F Fund events that result in an economic benefit to local businesses and the City of Port Orchard. STRATEGY 5G Fund events that include and support cooperative marketing and partnerships. STRATEGY 5H Phase out funding for events that are not accomplishing their stated goals or that can self - fund. Marketing and Promotion Funding Page 17 of 298 Page 10 of 12 Back to Agenda Goal 6 Fund marketing projects. STRATEGY 6A Fund marketing that encourages overnight stays in Port Orchard. STRATEGY 6B Encourage marketing through cooperative partners in statewide tourism promotion. STRATEGY 6C Fund marketing that results in an economic benefit to local businesses and the City of Port Orchard. STRATEGY 6D Fund marketing that includes and supports cooperative marketing and partnerships. STRATEGY 6E Fund marketing that includes and supports regional marketing. STRATEGY6F Fund marketing which has high potential to attract visitors from outside the 50-mile drive radius. Community Building Goal 7 Work with civic and nonprofit groups to support and create visitor opportunities STRATEGY 7A Partner with the Port of Bremerton, the Port Orchard Bay Street Association, the Port Orchard Chamber of Commerce, and interested non -profits to identify and execute potential visitor opportunities. action 7A-1 Encourage activities for all ages, multi -generational, and multicultural. rage i o or zya Page 11 of 12 Back to Agenda APPENDIX A Recent Allocations Organization/Request 2015 2016 Allocation Allocation Arthritis Foundation -Jingle Bell Run $0 $1,000 Chamber of Commerce -Tourism Marketing $9,834 $14,000 Chamber of Commerce-Tourism/Visitor Services $0 $6,200 Chamber of Commerce -Seagull Calling Festival $0 $2,000 City of Port Orchard -Festival of Chimes & Lights $9,318 $4,500 City of Port Orchard -Summer Foot Ferry Services $10,571 $7,300 City of Port Orchard -Foot Ferry Kiosk Sign N/A $1,700 City of Port Orchard -Media Kit $3,714 $0 City of Port Orchard-125`" Anniversary $2,571 $0 Explore Port Orchard $16,809 $0 Fathoms O'Fun Festivals $23,666 $18,500 Kitsap Harbor Festival $0 $0 Kitsap Mustang Club -Mustangs on the Waterfront N/A N/A Port Orchard Bay Street Association $17,200 $15,600 Saints Car Club -The Cruz $1,918 $1,875 Sidney Museum & Arts Association $6,714 $5,100 Visit Kitsap $5,685 $6,225 Total $108,000 $84,000 2017 2018 2019 2020 Allocation Allocation Allocation $2,000 18 4 N/A N/A $16,000 1 $13,814 $22,010 $25,500 $6,250 $8,277 N/A N/A $1,620 $3,014 N/A N/A $7,600 N/A N/A N/A $7,500 $6,300 $6,500 $2,500 N/A N/A N/A N/A $0 N/A N/A N/A $0 N/A N/A N/A $0 N/A N/A N/A $22,000 $20,814 $21,532 $21,000 $0 N/A N/A N/A N/A $1,314 $2,500 $2,500 $17,100 $19,727 $23,070 $22,500 $1,850 $2,113 $2,400 $3,000 $5,080 $2,813 $5,070 $5,000 $12,000 $12,000 $16,918 $18,000 $99,000 $91,000 $100,000 $100,000 Page 19 of 298 Page 12 of 12 Back to Agenda ORCHARD=::::==::m CITY OF PORT ORCHARD TOURISM PROMOTION STRATEGIC PLAN Page 20 of 298 Back to Agenda Tourism Promotion Strategic Plan Contents Background.........................................................................................................................................................................3 StrategicPlanning.............................................................................................................................................................3 LodgingTax.........................................................................................................................................................3 TheLodging Tax Advisory Committee................................................................................................................3 Use of Lodging Tax Revenues.............................................................................................................................3 Definitions.........................................................................................................................................................................4 Application and Reporting Requirements......................................................................................................................4 Revenue History and Projections........................................................................................................................5 AllocationProcess..............................................................................................................................................6 Mission, Vision, and Commitments....................................................................................................................6 ValueStatement.................................................................................................................................................6 OurVision...........................................................................................................................................................6 OurMission........................................................................................................................................................7 StrategicCommitments......................................................................................................................................7 Goals, Strategies, and Action Items....................................................................................................................7 Goals...................................................................................................................................................................7 Strategies...........................................................................................................................................................7 ActionItems........................................................................................................................................................8 TheComprehensive Plan.................................................................................................................................................8 Ata Glance.........................................................................................................................................................8 City Leadership on Tourism and Culture......................................................................................................................8 AllocationProcess............................................................................................................................................................9 General Standards for Allocations.................................................................................................................................9 EventFunding...................................................................................................................................................................9 Marketing and Promotion Funding.............................................................................................................................10 CommunityBuilding......................................................................................................................................................10 AppendixA Recent Allocations........................................................................................................................11 T _V1110ftomw Page 21 of 298 Page 2 of 11 Back to Agenda Background Strategic Planning In January 2016, the City Council tasked the Economic Development Tourism committee to develop a strategic plan for tourism promotion. The committee focused on how the City can best leverage its lodging tax revenue and guide the Lodging Tax Advisory Committee. Lodging Tax The City of Port Orchard collects a 2% tax on the furnishing of lodging within the City, called the "lodging tax." The tax is levied on hotels, motels, bed and breakfasts, and other such businesses offering transient occupancy. The Lodging Tax Advisory Committee State law requires the City to establish a Lodging Tax Advisory Committee, which must review and comment on any proposal to impose, increase, repeal the lodging tax, or change the use of revenue received. The LTAC is subject to the Open Public Meetings and Public Records Act. The LTAC membership must be appointed by the Mayor and confirmed by the City Council and must include: (a) at least two members who are representatives of businesses required to collect the tax under RCW 67.28; (b) at least two members who are persons involved in activities authorized to be funded by revenue received under RCW 67.28; and (c) a City elected official, who must serve as chair of the committee, as a non -voting member. The number of members in (a) must be equal to the number of members in (b). Persons who are eligible for appointment under (a) are not eligible for appointment under (b). Terms are for one year and members are eligible for re -appointment. The City maintains a webpage about the Lodging Tax allocation process and LTAC. Use of Lodging Tax Revenues Lodging tax revenues may be used directly by any municipality or indirectly, through a convention and visitors bureau or destination marketing organization. The applicant must meet one of the following: (a) tourism marketing; (b) the marketing and operations of special events and festivals designed to attract tourists; (c) supporting the operations and capital expenditures of tourism -related facilities owned or operated by a municipality or a public facilities district; or (d) supporting the operations of tourism -related facilities owned or operated by nonprofit 501(c)(3) or (c)(6) organizations. Page 22 of 298 Page 3 of 11 Back to Agenda Definitions "Applicant" means any convention and visitors bureaus; destination marketing organizations; nonprofits, including main street organizations, lodging associations, or chamber of commerce; and municipalities. "Cooperative Marketing" means collaboration by multiple organizations which promotes City tourism outside of Kitsap County. "Operation" includes, but it not limited to, operation, management, and marketing. "Regional Marketing" means marketing that promotes the entire Kitsap County or Peninsula. "Tourism" means economic activity resulting from tourists, which may include sales of overnight lodging, meals, tours, gifts, or souvenirs. "Tourism Promotion" means activities, operations, and expenditures designed to increase tourism, including but not limited to advertising, publicizing, or otherwise distributing information for the purpose of attracting and welcoming tourists; developing strategies to expand tourism; operating tourism promotion agencies; and funding the marketing or the operation of special events and festivals designed to attract tourists. "Tourism -related facility" means real or tangible personal property with a usable life of three or more years, or constructed with volunteer labor that is: (a)(i) Owned by a public entity; (ii) owned by a nonprofit organization described under section 501(c)(3) of the federal internal revenue code of 1986, as amended; or (iii) owned by a nonprofit organization described under section 501(c)(6) of the federal internal revenue code of 1986, as amended, a business organization, destination marketing organization, main street organization, lodging association, or chamber of commerce and (b) used to support tourism, performing arts, or to accommodate tourist activities. "Tourist" means a person who is traveling or visiting a place other than his or her own municipality of residence for pleasure or business. Application and Reporting Requirements Applicants applyingfor use of lodging tax revenues must provide the City estimates of how any moneys received will result in increases in the number of people traveling for business or pleasure on a trip: (i) away from their place of residence or business and staying overnight in paid accommodations; (ii) to a place fifty miles or more one way from their place of residence or business for the day or staying overnight; or (iii) from another country or state outside of their place of residence or their business. Recipients must submit a report to the City describing the actual number of people traveling for business or pleasure on a trip: (A) away from their place of residence or business and staying overnight in paid accommodations; (B) to a place fifty miles or more one way from their place of residence or business for the day or staying Page 23 of 298 Page 4 of 11 Back to Agenda overnight; or (C) from another country or state outside of their place of residence or their business. The City, in turn, must make those reports available to: • the City Council; • the public; • the Lodging Tax Advisory Committee; and • the State Legislature's Joint Legislative Audit and Review Committee (JLARC). Revenue History and Projections In the last several years, the City has seen an increase in the collection of lodging tax revenue. The 2021-2022 Biennial allocation was $2000,000; $100,000 each year. The chart below shows the last five years of revenue history, grouped by month to demonstrate seasonality. $16,000.00 $14,ODD.00 $12,000.00 $10,000.00 $8,ODD.00 $5,000.00 $4,000.00 $2,ODD.OD 5 Year Collection History *�. ■ 2017 ■ 2018 ■ 2019 ■ 2020 ■ 2021 Note: that lodging taxes are received two months after the room is paid for by the customer, i.e., in the chart below, January revenues are from rooms rented in November. Page 24 of 298 Page 5 of 11 Back to Agenda Allocation Process The City solicits applications from organizations eligible to receive lodging tax funds mid -summer, and LTAC considers those applications simultaneously and makes a recommendation for the following year. First-time applicants, events, or initiatives are allowed to apply at any time during the year. While state law does not prescribe a specific process for allocations, it does require the City Council to seek input from LTAC before changing the recommended allocations. The submission must occur at least forty-five (45) days before final action on or passage of the proposal by the City Council. The LTAC must select the candidates from amongst the applicants applying for use of revenues under RCW 67.28 and provide a list of such candidates and recommended amounts of funding to the City Council for final determination. The LTAC must submit comments on the proposal in a timely manner through generally applicable public comment procedures. The comments must include an analysis of the extent to which the proposal will accommodate activities for tourists or increase tourism, and the extent to which the proposal will affect long-term stability to the fund created under RCW 67.27. The City Council may choose only recipients from the list of candidates and recommended amounts provided by LTAC. Failure of the LTAC to submit comments before final action on or passage of the proposal shall not prevent the City Council form acting on the proposal. The City Council is not required to submit an amended proposal to an advisory committee under Chapter 67.28. Recent Allocations Lodging tax allocations in recent years have been fairly stable. Requests and allocations received from 2015 to 2020 are listed as Appendix A. Mission, Vision, and Commitments Value Statement Provide a supportive and connected community by offering a variety of year-round recreational and tourism opportunities. Our Vision The vision statement concerns the City as a community. We all recognize that our vision cannot be achieved through the efforts of City government alone. Port Orchard is a thriving northwest destination, which cultivates cultural activities, events, and festivals with positive economic impact for the benefit of residents, visitors, and local businesses alike. r Page 25 of 298 Page 6 of 11 Back to Agenda Our Mission The mission statement speaks explicitly to the City of Port Orchard's role in realizing our vision. Enhance the local economy and local culture by attracting visitors who stay longer, engage with our businesses, and make lasting connections. Strategic Commitments Our strategic commitments are the fundamental principles that drive the implementation of our mission and vision, and lay the groundwork for the goals, objectives, and strategies in the remainder of this plan. • Consistencywith community vision: align tourism promotion with our Comprehensive Plan. • Inclusiveness: make resources available to everyone and encourage participation. • Cooperation: encourage, facilitate, and engage in partnerships to accomplish our shared goals. • Transparency: be clear and accountable in our actions. • Fiscal responsibility: spend lodging tax money wisely. • Compatibility: evaluate the community's capacity for cultural activities, events and festivals, and support those that are appropriate and desired. Goals, Strategies, and Action Items The essential point of any strategic plan is its goals, strategies, and action items. In this plan, these elements are grouped logically, but are not in any particular order of priority. Except when introduced by a conditional phrase, each of these elements begin with action verbs. Goals Goals are broad, high-level general statements that are not time limited —and are intended to not change from year-to-year. The strategic plan includes two types of goals: (1) services goals that articulate what things we intend to accomplish or services we intend to provide; and (2) logistical goals that articulate how we intend to conduct our work. In general, services goals relate to the services provided to the public, and the logistical goals speak to the internal mechanics of providing those services, such as cost -efficiency. Strategies Each goal is supported by strategies that articulate how to achieve the overall goals. Strategies may or may not be time -limited, and may or may not include action items. Strategies are not formal or binding policies; policies should be adopted by a policy -setting body, such as the City Council. Page 26 of 298 Page 7 of 11 Back to Agenda Action Items Each action item is a specific, discrete task to implement the strategy. The action items defined in the plan may not be all of the possible or obvious actions that could implement the strategy, but are the items that we have identified as able to be implemented over the course of the plan. The Comprehensive Plan The City's 2016 Comprehensive Plan includes the following goals and policies relevant to tourism promotion: Goal 2. Policy ED-9 The City shall encourage the continuation and marketing efforts of downtown events and holiday festivals. Goal 4. Policy ED-16 Recognize and encourage tourism as a growing contribution to the economic diversity of Port Orchard. Goal 4. Policy ED-19 Maintain Port Orchard as a unique and significant waterfront destination with recreational and retail opportunities and residents. At a Glance City Leadership on Tourism and Culture................................................................................................................8 Goal 1 Provide Guidance and support for the coordination of tourism promotion......................................8 AllocationProcess..................................................................................................................................................9 Goal 2 Allow flexibility in times of application submissions...........................................................................9 GeneralStandards for Allocations.........................................................................................................................9 Goal 3 Evaluate projects based on data.........................................................................................................9 Goal 4 Ensure recipients are accountable.....................................................................................................9 EventFunding........................................................................................................................................................9 Goal 5 Fund events that promote tourism...................................................................................................10 Marketing and Promotion Funding.....................................................................................................................10 Goal6 Fund marketing projects....................................................................................................................10 CommunityBuilding............................................................................................................................................10 Goal 7 Work with civic and nonprofit groups to support and create visitor opportunities ............................10 City Leadership on Tourism and Culture Goal 1 Provide guidance and support for the coordination of tourism promotion. STRATEGY 1A Continue to address tourism activity through the City's Economic Development and Tourism Committee. Page 27 of 298 Page 8 of 11 Back to Agenda action 1A-1 Invite representatives (up to 9 members) from the Port Orchard Bay Street Association, the Port Orchard Chamber of Commerce, LTAC, city businesses, and non -profits active in tourism to provide input and recommendations for tourism. STRATEGY 1B Offer LTAC an outline of preferred distribution of awards such as a certain % to cooperative marketing, a % to regional marketing organizations, a % for operations, and a % for first time applicants, events, or initiatives. STRATEGY 1C Increase the number of new applicants, events, and initiatives. action 1C-1 Maintain an element on the City website to support tourism and tourism promotion such as, Special Event Tool Kit, access to the Special Event Ordinance, and Lodging Tax Information. Allocation Process Goal 2 Allow flexibility in times of application submissions. STRATEGY 2A First-time applicants, events, or initiatives may apply at any time during the year. action 2A-1 Provide first-time applicants with assistance through the application process. STRATEGY 2B Recurring events apply in the normal annual cycle. action 2B-1 List the prior year allocations on the website. STRATEGY 2C Comply with 45-day statutory timeline. General Standards for Allocations Goal 3 Evaluate projects based on data. STRATEGY3A Each organization submits a separate application, its project budget, statement of community economic benefit, and projected attendance or reach. action 3A-1 Evolve lodging tax applications to implement this strategic plan and collect useful data. Goal 4 Ensure recipients are accountable. STRATEGY4A Require effective and useful State reporting. action 4A-1 Develop a template reporting form and handout on methods of reporting and tracking. action 4A-2 Modify the application to require recurring events to provide prior year reporting data in their applications. Event Funding Goal 5 Fund events that promote tourism. STRATEGY 5A Fund events with growth potential or to fill in shoulder season. Page 28 of 298 Page 9 of 11 Back to Agenda STRATEGY 5B Fund events that leverage our natural resources and surroundings. STRATEGY 5C Continue to support events that contribute to local culture, such as Farmers Market. STRATEGY 5D Fund events that result in overnight stays within the City of Port Orchard. STRATEGY 5E Fund events that have a high potential to attract visitors from outside the 50-mile drive radius. STRATEGY 5F Fund events that result in an economic benefit to local businesses and the City of Port Orchard. STRATEGY 5G Fund events that include and support cooperative marketing and partnerships. STRATEGY 5H Phaseout funding for events that are not accomplishing their stated goals or that can self -fund. Marketing and Promotion Funding Goal 6 Fund marketing projects. STRATEGY 6A Fund marketing that encourages overnight stays in Port Orchard. STRATEGY 6B Encourage marketing through cooperative partners in statewide tourism promotion. STRATEGY6C Fund marketing that results in an economic benefit to local businesses and the City of Port Orchard. STRATEGY 6D Fund marketing that includes and supports cooperative marketing and partnerships. STRATEGY 6E Fund marketing that includes and supports regional marketing. STRATEGY 6F Fund marketing which has high potential to attract visitors from outside the 50-mile drive radius. Community Building Goal 7 Work with civic and nonprofit groups to support and create visitor opportunities STRATEGY 7A Partner with the Port of Bremerton, the Port Orchard Bay Street Association, the Port Orchard Chamber of Commerce, and interested non -profits to identify and execute potential visitor opportunities. action 7A-1 Encourage activities for all ages, multi -generational, and multicultural. Page 29 of 298 Page 10 of 11 Back to Agenda APPENDIX A Recent Allocations Organization/Request 2015 2016 2017 2018 2019 2020 Allocation Allocation Allocatioi Allocation Allocation Allocation Arthritis Foundation -Jingle Bell Run $0 $1,000 $2,000 $814 N/A N/A Chamber of Commerce -Tourism Marketing $9,834 $14,000 $16,000 $13,814 $22,010 $25,500 Chamber of Commerce-Tourism/Visitor Services $0 $6,200 $6,250 $8,277 N/A N/A Chamber of Commerce -Seagull Calling Festival $0 $2,000 $1,620 $3,014 N/A N/A City of Port Orchard -Festival of Chimes & Lights $9,318 $4,500 $7,600 N/A N/A N/A City of Port Orchard -Summer Foot Ferry Services $10,571 $7,300 $7,500 $6,300 $6,500 $2,500 City of Port Orchard -Foot Ferry Kiosk Sign N/A $1,700 N/A N/A N/A N/A City of Port Orchard -Media Kit $3,714 $0 $0 N/A N/A N/A City of Port Orchard-125th Anniversary $2,571 $0 $0 N/A N/A N/A Explore Port Orchard $16,809 $0 $0 N/A N/A N/A Fathoms O' Fun Festivals $23,666 $18,500 $22,000 $20,814 $21,532 $21,000 Kitsap Harbor Festival $0 $0 $0 N/A N/A N/A Kitsap Mustang Club -Mustangs on the Waterfror N/A N/A N/A $1,314 $2,500 $2,500 Port Orchard Bay Street Association $17,200 $15,600 $17,100 $19,727 $23,070 $22,500 Saints Car Club -The Cruz $1,918 $1,875 $1,850 $2,113 $2,400 $3,000 Sidney Museum & Arts Association $6,714 $5,100 $5,080 $2,813 $5,070 $5,000 Visit Kitsap $5,685 $6,225 $12,000 $12,000 $16,918 $18,000 Total $108,000 $84,000 $99,000 $91,000 $100,00( $100,00( Page 30 of 298 Page 11 of 11 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 Subject: Approval of Amendment No. 2 to Contract No. 074-14 with Dude Solutions, Inc. for SmartGov Subscription Back to Agenda Meeting Date: October 12, 2021 Prepared by: Nicholas Bond, AICP Atty Routing No. Atty Review Date DCD Director NA October 4, 2021 Summary: On August 27, 2014, the City entered into a contract for SmartGov software services, invoiced annually. The SmartGov permitting database software is used for permit tracking, application review, fee calculation, and to schedule inspections for Planning, Building and Public Works permits. DCD wishes to stay on this platform under the existing contract as SmartGov has the capabilities required to handle the unprecedented permit volumes we are experiencing. Last year there was an unexpected increase to the annual renewal rate. On September 8, 2021, Dude Solutions Inc. offered to lock -in our renewal fee with a 3-year subscription rate increase of 2.5% annually. The contract amendment to accept the proposal provides budget predictability we need. Relationship to Comprehensive Plan: N/A Recommendation: Staff recommends approval of Contract Amendment no. 2 with Dude Solutions, Inc. as presented. Motion for consideration: "I move to approve Contract Amendment No. 2 with Dude Solutions, Inc. as presented." Fiscal Impact: The contract is for a subscription rate increase at 2.5% annually for the next three years (2022 — 2024). The three-year total including applicable tax is $65,668.25. Alternatives: None Attachments: Contract Amendment No. 2. Page 31 of 298 Back to Agenda Amendment No. 2 to Contract No. C074-14 CITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT WITH DUDE SOLUTIONS, INC. THIS AMENDMENT to Contract No. C074-14 ("Amendment") is made effective as of the 12' day of October, 2021, by and between the City of Port Orchard ("City"), a municipal corporation, organized under the laws of the State of Washington, and Dude Solutions, Inc. ("DSI"), a corporation organized under the laws of the State of Delaware, located and doing business at 11000 Regency Parkway, Cary, NC 27518 ("Consultant"). WHEREAS, on August 27, 2014 the City executed a contract with Paladin Data Systems Corporation, for the provision of SmartGov Software as a Service (SAAS) ("Underlying Agreement"); and WHEREAS, on December 12, 2016 the contract was amended ("Amendment No. 1 ") to remove SG Onsite Training fee from the annual subscription: and WHEREAS, on May 1, 2018, Paladin announced that its products and services had been acquired by DSI; and and WHEREAS, DSI updated the terms of service since the acquisition of Paladin in 2018 ("Exhibit 2"); WHEREAS, on September 8, 2021, DSI offered the opportunity for the City to lock in the annual subscription rate for three years; and WHEREAS, the Consultant and the City have conferred and agree that the subscription rate will provide budget predictability; and WHEREAS, the parties wish to memorialize their agreement to so extend the Underlying Agreement as updated in Exhibit 2; NOW, THEREFORE, In consideration of the mutual benefits accruing, it is agreed by and between the parties thereto as follows: 1. The Underlying Agreement of August 27, 2014 between the parties is amended as specifically found in the attached Proposal for Subscription Invoices for 2022, 2023 and 2024, labeled as "Exhibit 1 "; 2. The Underlying Agreement is amended to the terms of service in the Master Subscription Agreement labeled as Exhibit 2; 3. Unless otherwise set forth in Exhibit 1, in all other respects, the Underlying Agreement between the parties shall remain in full force and effect, amended as set forth herein, but only as set forth herein. IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year set forth above. Page 32 of 298 Back to Agenda CITY OF PORT ORCHARD, WASHINGTON Robert Putaansuu, Mayor ATTEST/AUTHENTICATED: Brandy Rinearson, MMC, City Clerk APPROVED AS TO FORM: Charlotte A. Archer, City Attorney DUDE SOLUTIONS, INC. CONSULTANT Signature Printed Name and Title Page 33 of 298 EXHIBIT 1 Back to Agenda � Dude :J Solutions PREPARED FOR City of Port Orchard PREPARED BY Dude Solutions 11000 Regency Parkway, Suite 400 Cary, NC 27518 PUBLISHED ON September 08, 2021 Software for Smarter Operations dudesolutions.com 11000 Regency Pkwy #400 1 Cary, NC 27518 Page 34 of 298 Back to Agenda � Dude :J Solutions Software for Smarter Operations Q-259930 Thank you for your continued support of our market leading solutions for improving efficiency in operations. We are excited about providing you with online tools that will help you save money, increase efficiency and improve services. Dude Solutions, Inc. is dedicated to providing best in class solutions, including the following for City of Port Orchard. Term: 36 months (01101/2022 - 12/31/2024) SG SMARTConnect Financial 1/1/2022 12/31/2022 0.00 USD SG SMARTConnect Parcel 1/1/2022 12/31 /2022 411.60 USD SaaS Annual Subscription 1/1/2022 12/31/2022 14,758.76 USD SmartGov Citizen Portal 1/1/2022 12/31 /2022 4,427.64 USD Subscription Year 1 Total: 19,598.00 USD The Subscription invoice for Year 1 will be issued upon acceptance of the Order Form. dudesolutions.com 11000 Regency Pkwy #400 / Cary, NC 27518 A Page 35 of 298 Back to Agenda � Dude :J Solutions Remaining Subscription Invoices Year 2 Year 3 dudesolutions.com Software for Smarter Operations 1 /1 /2023 1 /1 /2024 11000 Regency Pkwy #400 / Cary, NC 27518 Q-259930 20,087.95 USD 20,590.15 USD J Page 36 of 298 Back to Agenda 1-5 Dude Software for Smarter Operations Solutions dudesolutions.com 11000 Regency Pkwy #400 1 Cary, NC 27518 A Page 37 of 298 4 Back to Agenda � Dude .:J Solutions Proposal terms • Proposal has been prepared for City of Port Orchard ("Subscriber") • Proposal expires in sixty (60) days Order Form terms Software for Smarter Operations • This Order Form and its Services are governed by the terms of the Dude Solutions, Inc. Master Subscription Agreement found at https://www.dudesolutions.com/terms (https://www.dudesolutions.com/terms) ("Terms"), unless Subscriber has a separate written agreement executed by Dude Solutions, Inc. ("DSI") for the Services, in which case the separate written agreement will govern. Acceptance is expressly limited to these Terms. Any additional or different terms proposed by Subscriber (including, without limitation, any terms contained in any Subscriber purchase order) are objected to and rejected and will be deemed a material alteration hereof. • The Effective Date of the Agreement between Subscriber and DSI is the date Subscriber accepts this Order Form. • During the Term, DSI shall, as part of Subscriber's Subscription Fees, provide telephone and email support ("Support Services") during the hours of 8:00 AM and 6:00 PM EST, Monday through Friday, excluding New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, day after Thanksgiving, Christmas Eve and Christmas Day ("Business Hours"), except Community Development Services, where Business Hours means 5:00 AM - 5:00 PM PST. Acceptance of this Order Form on behalf of a company or legal entity represents that you have authority to bind such entity and its affiliates to the order, terms and conditions herein. If you do not have such authority, or you do not agree with the Terms set forth herein, you must not accept this Order Form and may not use the Service. Additional information • Prices shown above do not include any taxes that may apply. Any such taxes are the responsibility of Subscriber. This is not an invoice. For customers based in the United States, any applicable taxes will be determined based on the laws and regulations of the taxing authority(ies) governing the "Ship To" location provided by Subscriber. Tax exemption certifications can be sent to accountsreceivablePdudesolutions.com (mailto:accountsreceivable(@dudesolutions.com). • Billing frequency other than annual is subject to additional processing fees. • Please reference Q-259930 on any applicable purchase order and email to accountsreceivable(@dudesolutions.com (mailto:accountsreceivable(@dudesolutions.com) • Dude Solutions, Inc. maintains the necessary liability coverage for its products and professional services. Proof of insurance can be provided upon request. dudesolutions.com 11000 Regency Pkwy #400 / Cary, INC 27518 A Page 38 of 298 5 Back to Agenda � Dude :J Solutions Signature Presented to: Q-259930 September 08, 2021, 1:46:22 PM Accepted by: Printed Name Signed Name Title Date Software for Smarter Operations dudesolutions.com 11000 Regency Pkwy #400 1 Cary, NC 27518 A Page 39 of 298 6 Back to Agenda Dude Solutions TM EXHIBIT 2 MASTER SUBSCRIPTION AGREEMENT This Master Subscription Agreement (this "Agreement") shall govern Subscriber's (as defined below) access and use of the Services (as defined below) provided by Dude Solutions ("DSI"). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE SERVICES, SUBSCRIBERAGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "ACCOUNT" OR "SUBSCRIBER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, THE INDIVIDUAL MUST NOTACCEPTTHIS AGREEMENTAND MAY NOT USE THE SERVICES. Section 1.0 Definitions As used in this Agreement, the following terms shall have the meanings set forth below: 1.1 "Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Service. 1.2 "Account" means Subscriber's specific account where Subscriber subscribes to access and use Service(s). 1.3 "Account User" means each employee, consultant and contractor of Subscriber that has been granted Access Credentials. 1.4 "Affiliate" means, with respect to any legal entity, any other legal entity that (i) controls, (ii) is controlled by or (iii) is under common control of such legal entity. A legal entity shall be deemed to "control" another legal entity if it has the power to direct or cause the direction of the management or policies of such legal entity, whether through the ownership of voting securities, by contract, or otherwise. 1.5 "Subscription Fee" means the fee invoiced to Subscriber by DSI prior to the Initial Term and each applicable Renewal Term, which is required to be paid in order for Subscriber to be permitted to access and use the Service and, if applicable the API. 1.6 "API" means DSI's proprietary application programming interface and any accompanying or related documentation, software libraries, software tools, published specifications, and other materials, as amended from time -to -time in DSI's sole discretion. 1.7 "Beta Service" means DSI Service or functionality that may be made available to Subscriber to try at its option at no additional charge that is clearly designated as beta, pilot, limited release, early adoption, non -production, sandbox, evaluation or a similar description. 1.8 "Confidential Information" means any non-public information and/or materials maintained in confidence and disclosed in any form or medium by a party under this Agreement (the "Disclosing Party") to the other party (the "Receiving Party"), that is identified as confidential, proprietary or that a reasonable person should have known, was the Confidential Information of the other party given the nature of the circumstances or disclosure, or as otherwise defined as Confidential Information, trade secrets, and proprietary business information as provided under applicable state law and exempted from disclosure by the applicable statute. Confidential Information may include without limitation: information about clients, services, products, software, data, technologies, formulas, processes, know- how, plans, operations, research, personnel, suppliers, finances, pricing, marketing, strategies, opportunities and all other aspects of business operations and any copies or derivatives thereof. Confidential Information includes Rev. Aug. 2021 Page 40 of 298 Back to Agenda information belonging to a third party that maybe disclosed only under obligations of confidentiality. Notwithstanding the foregoing, Confidential Information shall not include information that Receiving Party can demonstrate: (a) is or becomes generally known to the public without breach of any obligation by Receiving Party; (b) is received from a third party without breach of any obligation owed to Disclosing Party; or (c) is or has been independently developed by Receiving Party without the benefit of Confidential Information. 1.9 "Content" means all of the audio and visual information, documents, content, materials, products and/or software contained in, or made available through, the Service. 1.10 "Documentation" means the user documentation relating to the Service, including but not limited to descriptions of the functional, operational and design characteristics of the Service. 1.11 "Dude Solutions" or "DSI" means Dude Solutions, Inc., Dude Solutions Canada, Inc., Assetic Australia Pty Ltd and Confirm Solutions Limited together with their affiliates, successors and assigns. 1.12 "DSI Data" means all data, information and other content provided by or on behalf of DSI to any of the DSI Services. 1.13 "Implementation, Training and Support Program" or "ITSP" means DSI's comprehensive implementation, training and support program provided to DSI's Subscribers with respect to the Service. 1.14 "Intellectual Property Rights" means all ideas, concepts, designs, drawings, packages, works of authorship, processes, methodologies, information, developments, materials, inventions, improvements, software, and all intellectual property rights worldwide arising under statutory or common law, including without limitation, all (i) patents and patent applications owned or licensable by a party hereto; (ii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work registrations; (iii) rights related to protection of trade secrets and Confidential Information; (iv) trademarks, trade names, service marks and logos; (v) any right analogous to those set forth in clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, hereafter filed, issued or acquired. 1.15 "Order Form" means DSI's ordering document or online order specifying the Services to be provided hereunder that is entered into between Subscriber and DSI or its Affiliates, including any addenda and supplements. By entering into an Order Form, Affiliate(s) agree to be bound by the terms of this Agreement as if an original party. 1.16 "Privacy Policy" means the DSI privacy policy, as amended from time -to -time, which can be viewed at www.dudesolutions.com/privacy. 1.17 "Professional Service" means the professional, technical, consulting and/or other services to be performed by DSI that are ordered by Subscriber on an Order Form or provided without charge (if applicable). 1.18 "Service" means DSI's suite of Software -as -a -Service (SaaS) applications, products and services, as updated, enhanced or otherwise modified from time -to -time that are ordered by Subscriber on an Order Form or provided without charge (if applicable) and made available by DSI, including mobile components. For avoidance of doubt, Service applies onlyto Subscriber's production instances and shall exclude all beta and early adopter programs, user interface (UI) or user experience (UX) changes, feature or functionality improvements, and enhancements where a workaround exists in production. 1.19 "Subscriber" means the legal entity identified on the Account. 1.20 "Subscriber Data" means all data, information and other content provided by or on behalf of Subscriber to the Service, including that which the Account Users input or upload to the Service. 1.21 "Subscriber -Hosted Software" means DSI's suite of Software -as -a -Service (SaaS) software applications, as updated, enhanced or otherwise modified from time -to -time that are: (i) ordered by Subscriber on an Order Form or provided without charge (if applicable) and made available by DSI, including mobile components, and (ii) granted a non-exclusive and non -transferable license (with no right to sublicense) to install and use software for the Term. 1.22 "Third Party" means a party other than Subscriber or DSI. 2 Rev. Aug. 2021 Page 41 of 298 Back to Agenda Section 2.0 Use of the Service and API; Proprietary Rights 2.1 DSI Cloud Service: Subscriber -Hosted Software. (a) DSI Cloud Service. Unless otherwise specified on an applicable Order Form, DSI Service shall be provided as DSI-hosted, cloud Service. DSI grants Subscriber a non-exclusive and non -transferable right to access and use the Service for the Term. (b) Subscriber -Hosted Software. Where an applicable Order Form sets forth Subscriber -Hosted Software, subject to the provisions of this Agreement, DSI grants Subscriber a non-exclusive and non -transferable license (with no right to sublicense) to install and use the software for the Term. In respect of such Subscriber -Hosted Software: (i) Subscriber is responsible for installing and implementing the Subscriber -Hosted Software and any updates, enhancements or modifications, except for any Professional Services set forth on an applicable Order Form (i.e. implementation). (ii) Subscriber may create copies of the Subscriber -Hosted Software to the extent strictly necessary to install and operate the Subscriber -Hosted Software for use in accordance with this Agreement, and to create backup and archival copies to the extent reasonably required in the normal operation of Subscriber systems. All such copies must include a reproduction of all copyright, trademarks or other proprietary notices contained in the original copy of the Subscriber -Hosted Software. (iii) Subscriber is responsible for providing the Environment and ensuring the Environment functions properly, and for implementing appropriate data backup and security measures. "Environment" means the systems, networks, servers, equipment, hardware, software and other material specified in Documentation or an Order Form on which, or in connection with which, the Subscriber —Hosted Service will be used. 2.2 Use of the Service and API. (a) Service Subscription. Subject to the terms of this Agreement (including, without limitation, the responsibilities, limitations and restrictions set forth in this Section 2.2 and payment of the Subscription Fees required hereunder), (i) DSI shall permit Subscriber's Account Users to access and use the Service(s) during the Term, including access and use of all of the Content contained in or made available through the Service(s), (ii) Subscriber shall be automatically enrolled in the ITSP ("Implementation, Training and Support Program"), if applicable, and (iii) DSI shall use commercially reasonable efforts to make available to Subscriber each of the components described in the ITSP, when applicable. Subscriber agrees that it shall use the Service(s) solely for internal business purposes, and access and use of the Service(s) and the ITSP shall be limited to Account Users. (b) API License. Subject to the terms of this Agreement (including, without limitation, the responsibilities, limitations and restrictions set forth in this Section 2.2 and payment of the Subscription Fees required hereunder), DSI hereby grants to Subscriber a limited, non-exclusive, non -transferable, revocable license (without the right to sublicense) to use and make calls to the API solely for the purpose of (i) extracting and transferring Subscriber Data from the Service to other Third Party applications used by the Subscriber for internal business purposes, and/or (ii) Subscriber's internal development efforts to develop applications to work in conjunction with the functionality and capabilities of the Service purchased by Subscriber ("Subscriber Applications"). Subscriber shall have no right to distribute, license (whether or not through multiple tiers) or otherwise transfer the API to any Third Party or incorporate the API in any software, product, or technology. DSI sets and enforces limits on Subscriber use of DSI API (e.g. limiting the number of API requests that may be made or the number of Subscriber uses). Subscriber agrees to, and will not circumvent, DSI's usage guidelines and volume limits as described in DSI's technical documentation or 3 Rev. Aug. 2021 Page 42 of 298 Back to Agenda other documentation otherwise made available to Subscriber. Any usage beyond the guidelines and volume limits must obtain DSI's prior express consent from DSI. DSI may modify, amend, change, or deprecate all or part of the API from time -to -time (an "API Modification"). DSI shall use reasonable efforts to provide thirty (30) day notice to Subscriber of any such API Modifications. Any changes to new API functions or changes made for legal reasons will be effective immediately. If Subscriber does not agree to the modification, Subscriber may discontinue use of that API. Subscriber's continued use of the API constitutes acceptance of the modifications. (c) Account Setup. To subscribe to the Service, Subscriber must establish its Account, which may only be accessed and used by its Account Users. To setup an Account User, Subscriber must provide DSI (and agree to maintain, promptly update and keep) true, accurate, current and complete information for such Account User. If Subscriber or any applicable Account User provides any information that is untrue, inaccurate, not current or incomplete, DSI has the right to immediately suspend or terminate Subscriber's Account and usage of the Service and API and refuse any and all future use. Each Account User must establish and maintain personal, non -transferable Access Credentials, which shall not be shared with, or used by, any other Third Party. Subscriber may not transfer an Account User's Access Credentials and/or its right to access and use the Service to a different user. Subscriber shall be solely responsible for any and all activities that occur under its Account, including all acts and omissions of its Account Users. Subscriber shall notify DSI immediately of any unauthorized use of its Account and/or any other breach of security of the Service that it suspects or becomes aware of. (d) Subscriber Responsibilities. Subscriber shall: (i) take appropriate action to ensure that non -Account Users do not access or use the Service or API; (ii) ensure that all Account Users comply with all of the terms and conditions of this Agreement, including the limitations and restrictions set out in Section 2.2(e); (iii) be solely responsible for the accuracy, integrity, legality, reliability and appropriateness of all Subscriber Data created by Account Users using the Service; (iv) access and use the Service solely in compliance with the Documentation and all applicable local, state, federal, and foreign laws, rules, directives and regulations (including those relating to export, homeland security, anti -terrorism, data protection and privacy); (v) allow e-mail notifications generated by the Service on behalf of Subscriber's Account Users to be delivered to Subscriber's Account Users; and (vi) promptly update and upgrade its system as requested or required in order to ensure continued performance and compatibility with upgrades to the Service and/or API Modifications (as defined in Section 2.2(g)). Subscriber shall be responsible for any breach of this Agreement by Account Users. (e) Limitations and Restrictions. Subscriber agrees that it shall not, and shall not permit any Third Party to, directly or indirectly: (i) modify, alter, revise, decompile, disassemble, reverse engineer, create derivative works or attempt to derive the source code of the Service or API; (ii) assign, transfer, lease, rent, sublicense, distribute or otherwise make available the Service or API, in whole or in part, to any Third Party, including on a timesharing, software -as -a -service or other similar basis; (iii) share Access Credentials or otherwise allow access or use the Service or API to provide any service bureau services or any services on a similar basis; (iv) use the Service or API in a way not authorized in writing by DSI or for any unlawful purpose; (v) use the Service or API to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights; (vi) attempt to tamper with, alter, disable, hinder, by-pass, override, or circumvent any security, reliability, integrity, accounting or other mechanism, restriction or requirement of the Service or API; (vii) remove, obscure or alter any copyright, trademark, patent or proprietary notice affixed or displayed by or in the Service; (viii) perform load tests, network scans, penetration tests, ethical hacks or any other security auditing procedures on the Service or API; (ix) interfere with or disrupt the integrity or performance of the Service, API or the data contained therein; (x) access or use the Service or API in order to replicate applications, products or services offered by DSI and/or otherwise build a competitive product or service, copy any features, functions or graphics of the Service or API or monitor the availability and/or functionality of the Service or API for any benchmarking or competitive purposes; (xi) 4 Rev. Aug. 2021 Page 43 of 298 Back to Agenda under any circumstances, through a Third Party application, a Subscriber Application or otherwise, repackage or resell the Service, API or any DSI data received via API; (xii) store, manipulate, analyze, reformat, print, and display the Content for personal use; and (xiii) upload or insert code, scripts, batch files or any other form of scripting or coding into the Service. Notwithstanding the foregoing restrictions, in the event Subscriber has purchased a Subscription for Commercial Use (as such term is defined below), Subscriber shall be permitted to use the Service to provide Third Party services in cases where such Third Parties access the Subscriber provided applications or services, but where such Third Parties do not have the ability to install, configure, manage or have direct access to the Services. DSI hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to "internal use" and/or "internal business operations" shall be deemed to include and permit such use (hereafter referred to as "Commercial Use") (f) Additional Service Guidelines. DSI reserves the right to establish or modify general practices and limits concerning use of the Service. DSI shall use reasonable efforts to provide thirty (30) days' prior notice of any such modification. DSI also reserves the right to block IP addresses originating a Denial of Service (DoS) attack. DSI shall notify Subscriber should this condition exist and inform Subscriber of its action. Once blocked, an IP address shall not be able to access the Service or API and the block may be removed once DSI is satisfied corrective action has taken place to resolve the issue. (g) Links to Third Party Websites. To the extent that the Service links to any Third Party website, application or service, the terms and conditions thereof shall govern Subscriber's rights with respect to such website, application or service, unless otherwise expressly provided DSI. DSI shall have no obligations or liability arising from Subscriber's access and use of such linked Third Party websites, applications and services. (h) Beta Service. From time to time, DSI may make Beta Service available to Subscribers at no charge. Subscriber may choose to try such Beta Service or not in its sole discretion. Use of Beta Service is at Subscriber's sole risk and may contain bugs or errors. Subscriber may discontinue use of the Beta Service at any time, in its sole discretion. Further, DSI may discontinue any and all Beta Service availability at any time in its sole discretion without notice. NOTWITHSTANDING THE REPRESENTATIONS, WARRANTIES AND DISCLAIMERS IN SECTION 7, BETA SERVICE AND DOCUMENTATION, ARE PROVIDED ON AN "AS -IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. DSI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT. DSI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA SERVICE UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE DSI'S LIABILITY WITH RESPECT TO THE BETA SERVICE PROVIDED SHALL NOT EXCEED $500.00. 2.3 Proprietary Rights. (a) Subscriber acknowledges and agrees that (as between Subscriber and DSI) DSI retains all ownership right, title, and interest in and to the Service, API, the Documentation and the Content, including without limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively, "Derivative Works"), and in all Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed by DSI based upon ideas or suggestions submitted by Subscriber to DSI, Subscriber hereby irrevocably assigns all rights to modify or enhance the Service and/or API using such ideas or suggestions or joint contributions to DSI, together with all Intellectual Property Rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Subscriber (or to any party claiming through Subscriber) any Intellectual Property Rights in or to the Service, API, the Documentation and the Content, other than the rights expressly set forth in this Agreement. 5 Rev. Aug. 2021 Page 44 of 298 Back to Agenda (b) DSI acknowledges and agrees that (as between Subscriber and DSI) Subscriber retains all ownership right, title, and interest in and to the Subscriber Data, including all Intellectual Property Rights therein or thereto. Notwithstanding the foregoing, Subscriber hereby grants DSI and its Affiliates a non-exclusive, royalty -free license to: (i) access, display, copy, distribute, transmit, publish, disclose and otherwise use all or any portion of the Subscriber Data to fulfill its obligations under this Agreement. In addition, Subscriber hereby grants DSI a non- exclusive, royalty -free right to (i) use and incorporate Subscriber's feedback, including but not limited to suggestions, enhancement requests, recommendations and corrections (the "Feedback") relating to the Service and (ii) use aggregated and de -identified data generated and/or derived by DSI from the Subscriber Data (the "De -Identified Data") in order to improve the Service and DSI's performance hereunder, including without limitation, submitting and sublicensing such De -Identified Data to Third Parties for analytical purposes, provided that DSI shall take commercially reasonable efforts to conduct such de -identification in a manner that ensures that such De -Identification cannot be traced back to natural persons. (c) Subscriber acknowledges the Services may utilize, embed or incorporate Third Party software and/or tools (each, a "Third -Party Tool") under a license granted to DSI by one or more applicable Third Parties (each, a "Third -Party Licensor"), which licenses DSI the right to sublicense the use of the Third -Party Tool solely as part of the Services. Each such sublicense is nonexclusive and solely for Subscriber's internal use and Subscriber shall not further resell, re -license, or grant any other rights to use such sublicense to any Third Party. Subscriber further acknowledges that each Third -Party Licensor retains all right, title, and interest to its applicable Third -Party Tool and all documentation related to such Third -Party Tool. All confidential or proprietary information of each Third - Party Licensor is Confidential Information of DSI under the terms of this Agreement and shall be protected in accordance with the terms of Section 8. Section 3.0 DSI Responsibilities 3.1 Implementation, Training and Support Program (ITSP). During the Term DSI (or its agent, representative or designee) shall provide and maintain an ITSP program. During the Term, DSI shall, as part of Subscriber's Subscription Fees, provide telephone and email support ("Support Services"). 3.2 Professional Services. DSI shall provide Professional Services that are mutually agreed upon and described in one or more statements of work that expressly reference this Agreement and, if applicable, DSI's Professional Services Agreement. Each statement of work shall be effective, incorporated into and form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each statement of work shall (i) describe the fees and payment terms with respect the Professional Services being provided pursuant to such statement of work, (ii) identify any work product that will be developed pursuant to such statement of work, and (iii) if applicable, sets forth each party's respective ownership and proprietary rights with respect to any work product developed pursuant to such statement of work. 3.3 Service Levels. (a) DSI shall use commercially reasonable efforts to make the Service available 99.9% of the time for each full calendar month during the Term, determined on a twenty-four(24) hours a day, seven (7) days a week basis (the "Service Standard"). Service availability for access and use by Subscriber(s) excludes unavailability when due to: (a) any access to or use of the Service by Subscriber or any Account User that does not strictly comply with the terms of the Agreement or the Documentation; (b) any failure of performance caused in whole or in part by Subscriber's delay in performing, or failure to perform, any of its obligations under the Agreement; (c) Subscriber's or its Account User's Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage, or other problem with 6 Rev. Aug. 2021 Page 45 of 298 Back to Agenda Internet service or Non-DSI Service; (f) Scheduled Downtime; or (g) any disabling, suspension, or termination of the Service by DSI pursuant to the terms of the Agreement. "Scheduled Downtime" means, with respect to any applicable Service, the total amount of time (measured in minutes) during an applicable calendar month when such Service is unavailable for the majority of Subscribers' Account Users due to planned Service maintenance. To the extent reasonably practicable, DSI shall use reasonable efforts to provide eight (8) hours prior electronic notice of Service maintenance events and schedule such Service maintenance events outside the applicable business hours. (b) DSI shall use reasonable efforts to ensure the availability of API in accordance with the service levels described in Section 3.3(a). Notwithstanding the foregoing, DSI does not guarantee any required uptime, performance, or integrity of any product, application or service that integrates with and/or otherwise utilizes API (including, without limitation, any such product, application or service developed by Subscriber). Moreover, DSI shall not be liable to Subscriber or any Third Party for the unavailability of the API or the failure of API to perform in accordance with its specifications. Subscriber shall not represent to any Third Party any availability or performance levels with respect to API. 3.4 Protection of Subscriber Data. DSI shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, unauthorized access or disclosure of Subscriber Data. All data and information provided by Subscriber through its use of the Service is subject to DSI's Privacy Policy, which can be viewed by clicking the "Privacy" hypertext link located within the Service. By using the Service, Subscriber accepts and agrees to be bound and abide by such Privacy Policy. At all times during the Subscription term and upon written request of Subscriber within thirty (30) days after the effective date of termination or expiration of this Agreement, Subscriber data shall be available for Subscriber's export and download. Following the thirty (30) days after termination or expiration, DSI shall not be obligated to maintain Subscriber Data and may delete or destroy what remains in its possession or control unless prohibited by law. (a) If applicable in the United States, if Subscriber is a "Covered Entity" under the Health Insurance Portability and Accountability Act of 1996 (as amended from time to time, "HIPAA"), and if Subscriber must reasonably provide protected health information as defined by HIPAA in order to use the Services, DSI shall be Subscriber's "Business Associate" under HIPAA, and any Subscriber Data provided by Subscriber to DSI in their capacities as a Covered Entity and Business Associate, respectively, DSI and Subscriber shall enter into a Business Associate Agreement (the form of which shall be reasonably satisfactory to DSI). (b) If applicable in the United Kingdom, Switzerland or European Economic Area (EEA), both parties will comply with the applicable requirements of Data Protection Legislation. "Data Protection Legislation" means (i) the United Kingdom's Data Protection Act 2018, and (ii) the General Data Protection Regulation ("GDPR") and any national implementing laws, regulations or secondary legislation. DSI and Subscriber agree that DSI will not be processing any personal data on behalf of the Subscriber as "Data Controller" (defined in accordance with the Data Protection Legislation). DSI will collect, use, disclose, transfer and store personal information when needed to administer this Agreement and for its operational and business purposes, in accordance with Data Protection Legislation. To the extent personal data from the UK, Switzerland or the EEA are processed by DSI, the terms of a data processing addendum ("DPA") must be signed by the parties. To the extent DSI processes personal data, its binding corporate rules and the standard contract clauses shall apply, as set forth in the DPA. For standard contract clauses, Subscriber and DSI agree that Subscriber is the data exporter and Subscriber's acceptance of this Agreement or applicable Order Form shall be treated as its execution of the standard contract clauses. 7 Rev. Aug. 2021 Page 46 of 298 Back to Agenda Section 4.0 Third Party Interactions 4.1 Relationship to Third Parties. In connection with Subscriber's use of the Service, at Subscriber's discretion, Subscriber may: (i) participate in Third Party promotions through the Service; (ii) purchase Third Party goods and/or services, including implementation, customization, content, forms, schedules, integration and other services; (iii) exchange data, integrate, or interact between Subscriber's Account, the Service, API and a Third Party provider; (iv) receive additional functionality within the user interface of the Service through use of the API; and/or (v) receive content, knowledge, subject matter expertise in the creation of forms, content and schedules. Any such activity, and any terms, conditions, warranties or representations associated with such Third Party activity, shall be solely between Subscriber and the applicable Third Party. DSI shall have no liability, obligation or responsibility for any such Third Party correspondence, purchase, promotion, data exchange, integration or interaction. DSI does not warrant any Third Party providers or any of their products or services, whether or not such products or services are designated by DSI as "certified," "validated," "premier" and/or any other designation. DSI does not endorse any sites on the Internet that are linked through the Service. 4.2 Ownership. Subscriber is the owner of all Third Party content and data loaded into the Subscriber Account. As the owner, it is Subscriber's responsibility to make sure it meets its particular needs. DSI shall not comment, edit or advise Subscriber with respect to such Third Party content and data in any manner. Section 5.0 Fees and Payment. 5.1 Fees. Subscriber shall pay to DSI all fees specified in Order Forms. All Subscription Fees are non- refundable and non -cancelable, and the Subscription Fee for such Service subscription shall be invoiced upon commencement of the Initial Term of a Service subscription. Thereafter, DSI shall make reasonable efforts to invoice Subscriber for each applicable Subscription Fee sixty (60) days prior to its commencement. Unless Subscriber provides written notice of termination in accordance with Section 6.1, Subscriber agrees to pay all fees no later than thirty (30) days after the receipt of DSI's applicable invoice. Subscriber is responsible for providing complete and accurate billing and contact information to DSI and notifying DSI promptly of any changes to such information. 5.2 Automatic Payments. Subscriber shall, upon the written request from DSI, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the "Automatic Payment Method"). Upon establishment of such Automatic Payment Method, DSI is hereby authorized to charge any applicable Subscription Fee using such Automatic Payment Method. 5.3 Overdue Charges. If any invoiced amount is not received by DSI by the due date, without limiting DSI's rights or remedies, those overdue charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum amount permitted by law, whichever is lower. DSI reserves the right to condition an overdue Account's future subscription renewals and Order Forms on shorter payment terms than those stated herein. 5.4 Renewal Charges. DSI maintains the right to increase Subscription Fees and other applicable fees and charges in connection with each Renewal Term. 5.5 Taxes. DSI's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Subscriber is responsible for paying all Taxes associated with its purchases hereunder. If DSI has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 5.5, DSI shall invoice Subscriber and Subscriber shall pay that amount unless Subscriber provides DSI with a valid tax exemption certificate authorized by the appropriate taxing authority. Subscriber agrees to indemnify and hold DSI harmless from 8 Rev. Aug. 2021 Page 47 of 298 Back to Agenda any encumbrance, fine, penalty or other expense which DSI may incur as a result of Subscriber's failure to pay any Taxes required hereunder. For clarity, DSI is solely responsible for taxes assessable against DSI based on its income, property and employees. 5.6 Purchases through Resellers. In the event Subscriber purchases the Services (including any renewals thereof) through an authorized reseller of DSI, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to fees, payment or Taxes. Such terms and conditions shall be negotiated solely by and between Subscriber and such authorized reseller. In the event Subscriber ceases to pay the reseller, or terminates its agreement with the reseller, DSI shall have the right to terminate Subscriber's access to the Service at any time upon thirty (30) days' prior written notice to Subscriber unless Subscriber and DSI have agreed otherwise in writing. Section 6.0 Term and Termination 6.1 Term. This Agreement commences on the date Subscriber establishes its Account and continues until the Service subscription hereunder has expired or has been terminated (the "Term"). The initial term of the Service subscription shall be set forth on the Order Form (the "Initial Term"). Thereafter, except as stated on an applicable Order Form, the Service subscription shall automatically renew for additional periods equal to the expiring subscription term or one year, whichever is longer (each, a "Renewal Term") unless either party has provided written notice of its intent to terminate the Service subscription not less than forty-five (45) days prior to the expiration of the then -current Initial or Renewal Term applicable to the Service subscription. 6.2 Termination. Either party may terminate this Agreement (including its Service subscription and Account) prior to the expiration of the Term if (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach is given by the non -breaching party or (ii) Subscriber becomes the subject of a petition in bankruptcy or other similar proceeding; provided that if the breach involves a failure of Subscriber to pay any of the fees required under this Agreement, the cure period shall be reduced to ten (10) days. If the Agreement is terminated by Subscriber in accordance with this Section 6.2, DSI will refund any prepaid Subscription Fees covering the remainder of the Term of all Order Forms after the effective date of termination. If the Agreement is terminated by DSI in accordance with this Section 6.2, Subscriber will pay any unpaid fees covering the remainder of the term on all Order Forms to the extent permitted by applicable law. In no event will termination relieve the Subscriber of its obligation to pay any fees payable to DSI for the period prior to the effective date of termination. Without limiting the foregoing, in the event such breach that gives rise to the right by DSI to terminate this Agreement, DSI may elect to suspend Subscriber's access and use of the Service, API and the Account until the breach is cured. DSI's exercise of its suspension right shall be without prejudice to DSI's right to terminate this Agreement upon written notice to Subscriber. 6.3 Effect of Termination. Upon termination of this Agreement, (i) Subscriber's access and use of the Service shall automatically and immediately cease, and (ii) subject to Section 3.4, DSI shall have no obligation to maintain the Subscriber Data or to forward the Subscriber Data to Subscriber or any Third Party. 6.4 Survival. The following portions of this Agreement shall survive termination of this Agreement and continue in full force and effect: Sections 2, 3.4, 6.3, 7, 8 and 9. Termination of this Agreement, or any of the obligations hereunder, by either party shall be in addition to any other legal or equitable remedies available to such party, except to the extent that remedies are otherwise limited hereunder. 9 Rev. Aug. 2021 Page 48 of 298 Back to Agenda Section 7.0 Representations, Warranties and Disclaimers 7.1 Representations. Each party represents that: (i) it has full right, title and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of Subscriber, enforceable against it in accordance with its terms. 7.2 Warranties. (a) DSI represents and warrants that during the applicable subscription Term that Service will perform materially in accordance with the applicable Documentation. For any breach of this warranty in Section 7.2(a), Subscriber's exclusive remedy and DSI's entire liability shall be as described in Section 6.2 (Termination). (b) DSI represents and warrants that all such Professional Services shall be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty in Section 7.2(b), Subscriber's exclusive remedy and DSI's entire liability shall be the re -performance of the applicable Professional Services. (c) SERVICE, CONTENT, DOCUMENTATION, STORED DATA AND BETA SERVICE ARE PROVIDED "AS -IS" AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, THE PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT, DOCUMENTATION, STORED DATA OR BETA SERVICES. PARTIES SPECIFICALLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 7.3 Indemnification. (a) Indemnity by DSI. DSI shall defend and indemnify Subscriber from any loss, damage or expense (including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Subscriber, in connection with any Third Party claim (each, a "Claim") alleging that Subscriber's use of the Service as expressly permitted hereunder infringes upon any intellectual property rights, patent, copyright or trademark of such Third Party, or misappropriates the trade secret of such Third Party; provided that Subscriber (x) promptly gives DSI written notice of the Claim; (y) gives DSI sole control of the defense and settlement of the Claim; and (z) provides to DSI all reasonable assistance, at DSI's expense. If DSI receives information about an infringement or misappropriation claim related to the Service, DSI may in its sole discretion and at no cost to Subscriber: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Subscriber's continued use of the Service, or (iii) terminate this Agreement (including Subscriber's Service subscriptions and Account) upon prior written notice and refund to Subscriber any prepaid Subscription Fee covering the remainder of the Term of the terminated Service subscriptions. Notwithstanding the foregoing, DSI shall have no liability or obligation with respect to any Claim that is based upon or arises out of (A) use of the Service in combination with any software or hardware not expressly authorized by DSI, (B) any modifications or configurations made to the Service by Subscriber without the prior written consent of DSI, and/or (C) any action taken by Subscriber relating to use of the Service that is not permitted under the terms of this Agreement. This Section 7.3(a) states Subscriber's exclusive remedy against DSI for any Claim of infringement or misappropriation of a Third Party's Intellectual Property Rights related to or arising from Subscriber's use of the Service. 10 Rev. Aug. 2021 Page 49 of 298 Back to Agenda (b) To the extent permitted by law, Subscriber shall defend and indemnify DSI from any loss, damage or expense (including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by DSI, in connection with any Claim alleging that the Subscriber Data, or Subscriber's use of the Service or API in breach of this Agreement, infringes upon any patent, copyright or trademark of such Third Party, or misappropriates the trade secret of such Third Party; unless applicable laws prohibit public entities from such indemnification and provided that DSI (x) promptly gives Subscriber written notice of the Claim; (y) gives Subscriber sole control of the defense and settlement of the Claim; and (z) provides to Subscriber all reasonable assistance, at Subscriber's expense. This Section 7.3(b) states DSI's exclusive remedy against Subscriber for any Claim of infringement of misappropriation of a Third Party's Intellectual Property Rights related to or arising from the Subscriber Data or Subscriber's use of the Service. 7.4 Limitation of Liability. IN NO EVENT SHALL DSI, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO SUBSCRIBER IN EXCESS OF THE AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO DSI PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES SHALL DSI HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF DSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL LIMIT SUBSCRIBER'S PAYMENT OBLIGATIONS UNDER SECTION 5. Section 8.0 Confidentiality 8.1 Protection of Confidential Information. The Receiving Party agrees that it shall: (i) use the Confidential Information solely for a purpose permitted by this Agreement, (ii) use the same degree of care as Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of Confidential Information; and(iii) restrict access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement. Receiving Party shall not use, reproduce, or directly or indirectly allow access to the Confidential Information except as herein provided or export Confidential Information to any country prohibited from obtaining such information under any applicable laws or regulations. 8.2 Compelled Disclosure. If Receiving Party is required to disclose any Confidential Information to comply with law, to the extent legally permitted, Receiving Party shall: (a) give the Disclosing Party reasonable prior written notice to permit Disclosing Party to challenge or limit any such legally required disclosure; (b) disclose only that portion of the Confidential Information as legally required to disclose; and (c) reasonably cooperate with Disclosing Party, at Disclosing Party's request and expense, to prevent or limit such disclosure. 8.3 Records Requests. To the extent permitted by law, Subscriber shall treat as exempt from treatment as a public record, and shall not unlawfully disclose in response to a request made pursuant to any applicable public records law, any of DSI's Confidential Information. Upon receiving a request to produce records under any applicable public records or similar law, Subscriber shall immediately notify DSI and provide such reasonable cooperation as requested by DSI and permitted by law to oppose production or release of such DSI Confidential Information. 8.4 Remedies. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any unauthorized use or disclosure of Disclosing Party's Confidential Information and agrees to reasonably cooperate with Disclosing Party in its efforts to mitigate any resulting harm. Receiving Party acknowledges that Disclosing Party would 11 Rev. Aug. 2021 Page 50 of 298 Back to Agenda have no adequate remedy at law should Receiving Party breach its obligations relating to Confidential Information and agrees that Disclosing Party shall be entitled to enforce its rights by obtaining appropriate equitable relief, including without limitation a temporary restraining order and an injunction. Section 9.0 Miscellaneous 9.1 Compliance with Laws. Each party will comply with all laws and applicable government rules and regulations insofar as they apply to such party in its performance of this Agreement's rights and obligations. 9.2 Publicity. DSI is permitted to: (1) include Subscriber's name and logo in accordance with Subscriber's trademark guidelines; and (ii) list the Services selected by Subscriber, in public statements and client lists. Subscriber agrees to participate in press releases, case studies and other collateral using quotes or requiring active participation, the specific details of which shall be subject to mutual consent. 9.3 Relationship of the Parties. DSI is performing pursuant to this Agreement only as an independent contractor. DSI has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be performed its obligations set forth in this Agreement, except as otherwise agreed upon by the parties. Nothing set forth in this Agreement shall be construed to create the relationship of principal and agent between DSI and Subscriber. DSI shall not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber or its affiliates or in any manner assume or create, or attempt to assume or create, any obligation on behalf of, or in the name of, Subscriber or its affiliates. 9.4 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter. 9.5 Assignment. Subscriber shall have no right to transfer, assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement to any Third Party and any attempt to do so shall be null and void. DSI shall have the full ability to transfer, assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement. 9.6 Force Majeure. Subject to the limitations set forth below and except for fees due for Service rendered, neither party shall be held responsible for any delay or default, including any damages arising therefrom, due to any act of God, act of governmental entity or military authority, explosion, epidemic casualty, flood, riot or civil disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or Third Party services, failure of Third Party software, insurrections, any general slowdown or inoperability of the Internet (whether from a virus or other cause), or any other similar event that is beyond the reasonable control of such party (each, a "Force Majeure Event"). The occurrence of a Force Majeure Event shall not excuse the performance by a party unless that party promptly notifies the other party of the Force Majeure Event and promptly uses its best efforts to provide substitute performance or otherwise mitigate the force majeure condition. 9.7 Entity, Governing Law, Notices and Venue. All notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); (c) by business mail (upon written verification of receipt); or (d) except for notice of indemnification claims, via electronic mail to Subscriber at the e-mail address maintained on Subscriber's Account and to DSI at notice@dudesolutions.com. The DSI entity entering into this Agreement, the address to which notices shall be directed under this Agreement and the law that will apply in any 12 Rev. Aug. 2021 Page 51 of 298 Back to Agenda dispute or lawsuit arising out of or in connection with this Agreement shall depend upon where Subscriber is domiciled: (a) In the United States and all other domiciles not otherwise mentioned, the DSI entity is Dude Solutions, Inc., a Delaware corporation, notices shall be addressed to 11000 Regency Parkway, Suite 400, Cary, NC 27518, Attn: General Counsel, governing law shall be Delaware and the courts with exclusive jurisdiction shall be Delaware without regard to the principles of conflicts of laws, unless otherwise required by applicable law where Subscriber is a public entity. (b) In Canada, the DSI entity is Dude Solutions Canada, Inc., an Ontario corporation, notices shall be addressed to Bay Adelaide Centre, 333 Bay Street, Suite 2400, PO Box 20, Toronto, ON, M5H 2T6 Attn: Dude Solutions General Counsel, governing law shall be Ontario and the courts with exclusive jurisdiction shall be Toronto, Ontario, Canada without regard to the principles of conflicts of laws. (c) In the United Kingdom or a country in Europe, the DSI entity is Confirm Solutions Limited, a limited company in England, notices shall be addressed to Central House Unit C Compass Centre North, Chatham Maritime, Chatham, England, ME4 4YG, Attn: General Counsel, governing law shall be England and the courts with exclusive jurisdiction shall be London, England without regard to the principles of conflicts of laws. (d) In Australia, New Zealand, a country in Asia or the Pacific region, the DSI entity is Assetic Australia Pty Ltd, a proprietary limited company in Australia, notices shall be addressed to Level 9, 257 Collins Street, Melbourne, VIC 3000 Australia, Attn: General Counsel, governing law shall be Australia and the courts with exclusive jurisdiction shall be New South Wales, Australia without regard to the principles of conflicts of laws. 9.8 Interpretation of Agreement. The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. 9.9 No Third Party Beneficiaries. No person or entity not a party to the Agreement shall be deemed to be a third party beneficiary of this Agreement or any provision hereof. 9.10 Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect. 9.11 Entire Agreement. This Agreement, including any applicable Order Form, is the entire agreement between Subscriber and DSI regarding Subscriber's use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other order documentation is void. In the event of any conflict or inconsistency between the documents, the order of precedence shall be (1) the applicable Order Form, (2) any schedule or addendum to this Agreement, and (3) the content of this Agreement. 9.12 Export Compliance. The Service, Professional Service, Content or other technology DSI may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied -party list. Subscriber shall not permit any Account User to access or use any Service, Content or other DSI technology in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. 9.13 Anti -Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, orthing of value from an employee or agent of the other party in connect with this Agreement. 13 Rev. Aug. 2021 Page 52 of 298 Back to Agenda Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Subscriber learns of any violation of the above restriction, Subscriber shall immediately notify DSI. 9.14 Cooperative Use. With Subscriber's approval, the market research conducted by Subscriber during its selection process for the Services may be extended for use by other jurisdictions, municipalities, and government agencies of Subscriber's state. Any such usage by other entities must be in accordance with ordinance, charter, and/or procurement rules and regulations of the respective political entity. 9.15 Modifications. DSI may revise the terms of this Agreement from time -to -time and shall post the most current version of this Agreement on its website. If a revision meaningfully reduces Subscriber's rights, DSI shall notify Subscriber. 14 Rev. Aug. 2021 Page 53 of 298 Back to Agenda PROFESSIONAL SERVICES ADDENDUM THIS PROFESSIONAL SERVICES ADDENDUM ("Addendum") is an addendum to the Master Subscription Agreement (the "Agreement") between Dude Solutions, Inc. ("DSI") and Subscriber, as defined in the Agreement. This Addendum applies only to the extent that Subscriber and DSI execute an Order Form which includes a Statement of Work ("SOW") for the provision of Professional Services to be provided by DSI for Subscriber. BY ACCEPTING THIS ADDENDUM, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS ADDENDUM OR BY OTHERWISE ACCESSING AND USING THE PROFESSIONAL SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. 1. DEFINITIONS. 1.1 "Deliverable" means a deliverable under an SOW or Order Form. 1.2 "SOW" means a statement of work describing Professional Services to be provided hereunder, that is entered into between Subscriber and DSI or which is incorporated into an Order Form that is entered into between Subscriber and DSI. A DSI Affiliate that executed an SOW with Subscriber will be deemed to be DSI as such term is used in this Agreement. SOWS or Order Forms are deemed incorporated herein by reference. All other capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement. 2. PROFESSIONAL SERVICES. 2.1 Scope. DSI will provide such Professional Services and supply Deliverables to Subscriber in accordance with the terms of the Agreement and all applicable SOWs or Order Form. Unless otherwise specified in an applicable SOW or Order Form: (i) DSI will perform the Professional Services based on the schedule set forth in the SOW; (ii) any estimate of hours or cost are reasonable and good faith estimates only; and (iii) each task is performed as firm fixed price work. DSI shall only be obliged to supply Professional Services as expressly set forth in the SOW and shall not be obliged to supply any Professional Services and/or Deliverables until both Parties have approved the applicable SOW. 2.2 Unused Professional Services. Unless otherwise specified in the applicable SOW, an unused order for Professional Services will expire 12 months from the date of order, and Subscriber will not be entitled to receive a refund for any fees prepaid for such expired Professional Services. 2.3 Relationship to Other Services. The Addendum is limited to Professional Services and does not convey any right to use any other DSI Services. Subscriber agrees that Professional Services is not contingent on the delivery of any future Service functionality or features other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by DSI regarding future Serice functionality or features. 2.4 Subscriber Cooperation. Subscriber will cooperate reasonably and in good faith with DSI in its performance of Professional Services by: (i) providing access to Subscriber Data, (ii) allocating sufficient resources and timely performing any tasks reasonably necessary to enable DSI to perform its obligations under the SOW or Order Form, and (iii) actively participate in scheduled project meetings. Any delays in the performance of Professional Services or delivery of Deliverables caused by Subscriber may result in additional applicable charges for resource time. 2.5 Acceptance. Any Deliverables shall be described in the SOW or Order Form. Unless otherwise specified in the applicable SOW, Deliverables will be considered accepted upon written notice thereof (e-mail sufficient) from Subscriber or two (2) business days from delivery if Subscriber has not first provided written notice of rejection, provided CONFIDENTIAL 1 Rev. July 2021 Page 54 of 298 Back to Agenda Subscriber may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the material failure to conform to its specifications. In response to rejection, DSI may revise and redeliver the Deliverable, and thereafter the procedures of this Section will repeat. 3. FEES & PAYMENT TERMS. 3.1 Payment. Subscriber will pay DSI the fees specified in each SOW or Order Form contained therein. Unless the SOW or Order Form provides otherwise, Subscriber will pay DSI within thirty (30) calendar days from the date of invoice. 3.2 Incidental Expenses. Subscriber will reimburse DSI for travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, DSI will not exceed such estimate without the written consent of Subscriber. 4. TERM AND TERMINATION. 4.1 Term. Each SOW Term shall begin on the effective date specified in the applicable SOW or Order Form and end on the date that the Professional Services are completed.. Unless earlier terminated as set forth below, the terms of this Addendum will continue until termination or expiration of the applicable SOW. Termination shall be in accordance with the Agreement. 4.2 Termination. Either party may terminate a SOW or these PS Terms for the other's material breach of such SOW or PS Terms, as applicable, on thirty (30) days' written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate. Additionally, all SOWS will immediately terminate upon termination or expiration of the Agreement. 4.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Subscriber will pay DSI such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Subscriber will pay DSI the reasonable value of the Professional Services rendered by DSI up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW. 5. PROPRIETARY RIGHTS AND LICENSES. 5.1 Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. 5.2 Subscriber Data. Subscriber does not grant to DSI any rights in or to Subscriber's intellectual property except such licenses as are required for DSI to perform its obligations under the Agreement. 5.3 License for Deliverables. Upon payment of fees due under an applicable SOW or Order Form, DSI grants Subscriber a worldwide, perpetual, non-exclusive, non -transferable, royalty -free license to copy, maintain, use and run (as applicable) solely for its internal business purposes associated with its use of DSI's Services any Deliverables created by DSI solely for Subscriber under this Agreement. DSI and Subscriber each retain all right, title and interest in their respective Intellectual Property and DSI retains all ownership rights in the Deliverables. 6_ WARRANTY_ DSI represents and warrants that all Professional Services shall be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty in Section 5, Subscriber's exclusive remedy and DSI's entire liability shall be the re -performance of the applicable Professional Services. 7. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH SECTION 5 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DSI AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE DELIVERABLES CONFIDENTIAL Page 55 of 298 Rev. July 2021 Back to Agenda OR THE PERFORMANCE OF PROFESSIONAL SERVICES HEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON -INFRINGEMENT. DSI DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE DELIVERABLES OR THE RESULTS SUBSCRIBER MAY OBTAIN BY USING THE DELIVERABLES. IN PARTICULAR, DSI DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE DELIVERABLES, THATTHE DELIVERABLES WILL CONTINUE TO FUNCTION WITH ANY SUBSCRIPTION SERVICES AFTER THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, OR THAT DSI WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. 8. NON -EXCLUSIVITY OF PROFESSIONAL SERVICES. Notwithstanding the Confidentiality obligations set forth in Section 8 of the Agreement, Subscriber acknowledges and agrees that (i) multiple Subscribers may require similar Professional Services or Deliverables and that DSI may be developing similar Professional Services and Deliverables for other third parties, (ii) DSI may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information of Subscriber, (iii) nothing will prohibit DSI from developing or having developed for it customizations, configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will prohibit DSI from re -using with another Subscriber or making generally available as part of subscription services all or part of any customization, configuration, feature, concept, system or technique developed hereunder. 9. IP INDEMNITY. 9.1 Indemnification by DSI. Subject to this Addendum, DSI will (i) defend, or at its option settle, any claim, demand, action or legal proceeding ("Claim") made or brought against Subscriber by a third party alleging that the use of the Deliverable(s) as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by DSI in a monetary settlement of such Claim. DSI's obligations to defend or indemnify will not apply to the extent that a Claim is based on (1) Subscriber Data, Subscriber's or a third party's technology, software, materials, data or business processes; (II) a combination of the Deliverable(s) with non-DSI products or services; or (III) any use of the Deliverable(s) not in compliance with this Addendum. In the event of a Claim, DSI may, in its discretion and at no cost to Subscriber (A) modify the Deliverable(s) so that they are no longer the subject of an infringement claim, (B) obtain a license for Subscriber's continued use of the Deliverable(s) in accordance with this Addendum, or (C). to suspend use of the Deliverable in question and refund to Subscriber a pro rata portion of the fees paid for every month during which Subscriber is prevented from using the infringing Deliverable as a result of such infringement, during the first three years after delivery of such Deliverable. 9.2 Indemnification by Subscriber. Subject to this Addendum, Subscriber will (i) defend, or at its option settle, any Claim made or brought against DSI by a third party alleging that (1) Subscriber Data, Subscriber's or a third party's technology, software, materials, data or business processes; (11) a combination of the Deliverables with non-DSI products or services; or (III) Subscriber's use of the Deliverables , other than as authorized in this Addendum, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim. For clarity, THIS SECTION 8 STATES DSI'S SOLE OBLIGATION, AND SUBSCRIBER'S SOLE REMEDY, WITH REGARDS TO CLAIMS THATTHE DELIVERABLES INFRINGE ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. 10. LIMITATION OF LIABILITY. IN NO EVENT SHALL DSI, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO SUBSCRIBER IN EXCESS IF THE TOTAL AMOUNT PAID BY SUBSCRIBER UNDER THE APPLICABLE SOW TO WHICH THE CLAIM RELATES. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BYLAW. UNDER NO CIRCUMSTANCES SHALL DSI HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR CONFIDENTIAL Page 56 of 298 Rev. July 2021 Back to Agenda OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF DSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL LIMIT SUBSCRIBER'S PAYMENT OBLIGATIONS UNDER SECTION 3. 11. MISCELLANEOUS 11.1 Order of Precedence. In the event of a conflict, the provisions of an authorized SOW will prevail over those of this Addendum. Neither party's acts nor omissions related to Professional Services, to a SOW, or to this Addendum, including without limitation breach of a SOW or of this Addendum, will give the other party any rights or remedies not directly related to the SOW in question. 11.2 Independent Contractor. The parties are independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, fiduciary or employment relationship between the parties. Neither party is authorized to make any representation or commitment on behalf of the other party. Each Party assumes full responsibility for the actions of its personnel while performing Services and such party will be solely responsible for the supervision, daily direction, control of its personnel and for the payment of all of their compensation. 11.3 No Third -Party Beneficiaries. There are no third -party beneficiaries to this Agreement. 11.4 Force Majeure. Neither party will be responsible for failure or delay of performance of a SOW if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed Professional Services upon written notice. 11.5 Non -Solicitation. During the Term of this Addendum and for twelve (12) months thereafter, Subscriber will not solicit for employment, nor knowingly employ (either as an employee, contractor or agent), any of DSI's employees or subcontractors. 11.6 Subcontractors. DSI may, in its reasonable discretion, use subcontractors inside or outside the United States to perform any of its obligations hereunder. DSI will be responsible for the performance of Professional Services by its personnel (including employees and contractors) and their compliance with DSI's obligations under this Addendum, except as otherwise specified herein. 11.7 Severability. If any provision of this Addendum is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Addendum will remain in effect. CONFIDENTIAL Page 57 of 298 Rev. July 2021 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda Dude SolutionSTM SUBSCRIBER DATA PROCESSING ADDENDUM This Data Processing Agreement ("DPA") Subscriber forms part of, and is subject to, the Master Subscription Agreement or other written or electronic terms of service or subscription agreement between Dude Solutions, Inc. or its Affiliate that is party to such agreement ("DSI") and the Subscriber defined thereunder together with all Subscriber Affiliates who are signatories on an Order Form for their own Service pursuant to such Agreement (such agreement, the "Agreement"). This DPA shall be effected on the effective date of the Agreement unless this DPA is separately executed in which case it is effective on the date of the last signature ("Effective Date"). WHEREAS (A) Subscriber acts as a Data Subscriber. DSI offers a suite of Software -as -Service (SaaS) applications, products and services provided as DSI-hosted, cloud Service. (B) Subscriber wishes to contract certain Services, which may include processing of Subscriber's Personal Data to DSI. (C) The parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). (D) The Parties agree to comply with the following provisions with respect to Personal Data, each acting reasonably and in good faith. IT IS AGREED AS FOLLOWS: Definitions and Interpretation. All capitalized terms not defined herein shall have the meaning set forth in the Agreement. In the event of a conflict between the terms and conditions of this Agreement and the Agreement, the terms and conditions of this Agreement shall supersede and control. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning: 1.1. "Authorized Employee" means an employee of DSI who has a need to know or otherwise access Personal Data to enable DSI to perform its obligations under this DPA or the Agreement; 1.2. "Authorized Individual" means an Authorized Employee or Subprocessor. 1.3. "Data Privacy Laws" means EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act ("UK GDPR"), or to the extent applicable, the data protection or privacy laws of any other country designed to replace the foregoing and having equivalent effect; 1.4. "EEA" means the European Economic Area, including the European Union, Iceland, Lichtenstein and Norway; 1.5. "Instructions" means the directions, either in writing, in any form or medium, or by using a software or tool, issued by Subscriber to DSI. 1.6. "Personal Data" means any Personal Data (i) of Data Subjects in the EEA or the United Kingdom or (ii) held by Subscriber if the Subscriber is in the EEA or United Kingdom Processed by DSI or any Subprocessor on behalf of Subscriber pursuant to the Agreement. For avoidance of doubt, De -Identified Data or otherwise aggregated or anonymized data is not Personal Data. 1.7. "Service" shall have the meaning set forth in the Agreement. 1.8. "Standard Contractual Clauses" means the Agreement executed by and between Subscriber and DSI and attached hereto as Schedule A pursuant to the European Commission's decision (C(2010)593) of February 5, 2010 on Rev. Aug. 2021 Page 58 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection. 1.9. "Subprocessor" means an authorized third -party appointed by or on behalf of DSI to Process Personal Data; 1.10. The terms, "Commission", "Subscriber", "Data Subject", "Member State", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their associated terms shall be construed accordingly. 2. Subscriber Processine of Personal Data 2.1. Subscriber shall, at all times Process Personal Data, and provide instructions for the Processing of Personal Data in compliance with the Data Privacy Laws. Subscriber shall ensure that its Instructions comply with all laws, rules and regulations applicable in relation to the Personal Data and that the Processing of Personal Data in accordance with Subscriber's Instructions will not cause DSI to be in breach of the Data Privacy Laws. Subscriber is solely responsible for the accuracy, quality and legality of (i) Personal Data provided to DSI by or on behalf of Subscriber, (ii) the means by which Subscriber acquired any such personal Data, and (iii) the Instructions it provides to DSI regarding the Processing of such Personal Data. Subscriber shall not provide or make available to DSI any Personal Data in violation of the Agreement or which is otherwise inappropriate for the nature of the Service, and shall indemnify DSI from all claims and losses in connection therewith. 2.2. DSI shall process Personal Data only (i) for purposes set forth in the Agreement, (ii) in accordance with the terms and conditions set forth in this DPA and any other documented Instructions provided by Subscriber, and (iii) in compliance with the Directive and the GDPR. Subscriber hereby instructs DSI to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Subscriber in its use of Service. Data Processing Detail 3.1. Data Subjects. Subscriber may transfer Personal Data to DSI, the extent of which is determined in Subscriber's sole discretion, and which may include Personal Data relating to: the following categories of Data Subjects: (i) the Subscriber's Authorized individuals, employees, contractors or other Representatives, and (ii) Subscriber's end users/customers.. 3.2. Categories of Data. The Subscriber may transfer the following types ofPersonal Data for the purposes set out in this DPA: 3.2.1. identification and contact data (e.g. name, address, GPS location, contact details); 3.2.2. general organizational data (such as your department, job title, area of responsibility); 3.2.3. IT data (IP addresses, passwords, access rights, cookies data and usage data); 3.2.4. special categories of personal data (including, for example, data concerning health); and 3.2.5. other information voluntarily disclosed by Subscriber. 3.3. Nature, Subject Matter, and Purpose of Processing. DSI processes Subscriber Personal Data only for the performance of Service pursuant to the Agreement. 3.4. Duration of Processing. The duration of the Processing shall be for the Term of the Agreement. Following Termination, DSI may return or delete the Personal Data in accordance with the Agreement except as required to be retained by the laws of the EEA member states. Authorized Employees 4.1. DSI shall use commercially reasonable measures to ensure the reliability and training of any employee, agent or contractor of any Authorized Employee who may access the Personal Data. DSI shall ensure that Authorized Employees are aware of the Confidential Information nature of the Personal Data and are bound by confidentiality agreements to DSI, during and after their engagement with DSI. DSI shall use commercial reasonable measures to limit access to Personal Data to only Authorized Individuals. Subprocessor 5.1. Subscriber acknowledges and agrees that DSI may (1) engage the Subprocessors listed in Schedule B to this Agreement to access and Process Personal Data in connection with the Service and (2) continue to use those Subprocessors already engaged at the date of this Agreement, subject to DSI's compliance with the obligations herein. 2 Rev. Aug. 2021 Page 59 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda 5.2. DSI shall ensure that all Subprocessors have executed confidentiality agreements that prevent them from disclosing or otherwise Processing any Personal Data both during and after their engagement by DSI. 5.3. DSI shall ensure that each Subprocessor is governed by a written contract that imposes data protection obligations at least as protective as this Agreement. 5.4. If Subscriber has entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the above authorizations will constitute Subscriber's prior written consent to the subcontracting by DSI of the processing of Personal Data if such consent is required under the Standard Contractual Clauses. Security 6.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, DSI shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data. 6.2. Adherence to an approved certification mechanism will be sufficient to demonstrate DSI's (or Subprocessors') compliance with its security obligations under this Agreement. Transfers of Personal Data 7.1. If DSI transfers Personal Data outside of the EEA or the United Kingdom to any countries, DSI makes that transfer pursuant to the Standard Contractual Clauses set forth in Schedule B to this Agreement. 8. Data Subiect RiLyhts 8.1. DSI shall, to the extent permitted by law, promptly notify Subscriber upon receipt of a request by a Data Subject to exercise the Data Subject's right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision -making (herein referred as "Data Subject Requests"). If DSI receives a Data Subject Request in relation to Subscriber's data, DSI will advise the Data Subject to submit their request to Subscriber and Subscriber will be responsible for responding to such request, including, where necessary, by using the functionality of the Service. 8.2. DSI shall, at the request of the Subscriber, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Subscriber in complying with Subscriber's obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Subscriber is itself unable to respond without DSI's assistance and (ii) DSI is able to do so in accordance with all applicable laws, rules, and regulations. Subscriber shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by DSI. Actions and Access Requests 9.1. DSI shall provide Subscriber with reasonable cooperation and assistance, where Subscriber must comply with its obligations under the GDPR, conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Subscriber does not otherwise have access to the relevant information. To the extent legally permitted, Subscriber shall be responsible for any costs and expenses arising from any DSI assistance. 9.2. DSI shall provide Subscriber with reasonable cooperation and assistance with respect to Subscriber's cooperation and/or prior consultation with any Supervisory Authority, where necessary and required by the GDPR. 9.3. To the extent legally permitted, Subscriber shall be responsible for any costs and expenses arising from any DSI assistance. 10. Audit Rights 10.1. DSI shall maintain records sufficient to demonstrate its compliance with its obligations under this Agreement. 10.2. If Subscriber reasonably considers that information made available pursuant to Section 9.1 is insufficient to demonstrate compliance with this Agreement, DSI will allow an audit by Subscriber (or auditors appointed) in relation to DSI's processing of Employee Personal Data. Any such audit will be carried out remotely (unless otherwise agreed by the Parties or expressly required by a Supervisory Authority) and in accordance with DSI's 3 Rev. Aug. 2021 Page 60 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda reasonable security requirements. All results of the audit shall be subject to the confidentiality obligations of the parties under the Agreement and the applicable Data Privacy Law. 11. Personal Data Breach 11.1. DSI shall notify Subscriber, without undue delay upon DSI's confirmation of any Personal Data Breach affecting Employee Personal Data. 11.2. DSI shall provide Subscriber with information regarding such Personal Data Breach as required by the applicable Data Privacy Laws or as otherwise reasonably requested by Subscriber to enable Subscriber to comply with its obligations under the Data Privacy Laws. 11.3. DSI shall use commercially reasonable efforts to: (i) identify the cause of such Personal Data Breach, and (ii) remediate the cause of such Personal Data Breach within DSI's systems, to the extent such remediation is within DSI's reasonable control. 11.4. The obligations described in Sections 11.2 and 11.3 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Subscriber. 12. Limitation of Liability 12.1. The total liability of each of Subscriber and DSI (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Agreement, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement. IN WITNESS WHEREOF, the Subscriber and DSI have executed this Agreement as of the Effective Date: Dude Solutions, Inc. (and its Affiliates, "DSI") I D—SI/Aig-d by: Signed: [Y1.l�U 46 C3C19791979F48A.. Name: Kelly Caputo Title: General Counsel 8/17/2021 1 8:44:06 PM PDT Date: Email: corpsec@dudesolutions.com Tel.: 877-868-3833 ( "Subscriber") Signed: Name: Title: Date: Email: Te 1: 4 Rev. Aug. 2021 Page 61 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda SCHEDULE A: Standard Contract Clauses For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. Subscriber, as the data exporter, and DSI, as the data importer, each a 'party'; together 'the parties', HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1. Clause 1- Definitions For the purposes of the Clauses: (a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1); (b) 'the data exporter' means the controller who transfers the personal data; (c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; (d) 'the sub -processor' means any processor engaged by the data importer or by any other sub -processor of the data importer who agrees to receive from the data importer or from any other sub -processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract; (e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established; (f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Clause 2- Details of the transfer The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses. Clause 3- Third -party beneficiary clause 1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third -party beneficiary. 2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result 5 Rev. Aug. 2021 Page 62 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 3. The data subject can enforce against the sub -processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third -party liability of the sub -processor shall be limited to its own processing operations under the Clauses. 4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. Clause 4 - Obligations of the data exporter The data exporter agrees and warrants: (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; (b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses; (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract; (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; (e) that it will ensure compliance with the security measures; (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; (g) to forward any notification received from the data importer or any sub -processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension; (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub -processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information; 6 Rev. Aug. 2021 Page 63 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda (i) that, in the event of sub -processing, the processing activity is carried out in accordance with Clause 11 by a sub -processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and (j) that it will ensure compliance with Clause 4(a) to (i). Clause 5 - Oblieations of the data importer The data importer agrees and warrants: (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred; (d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorised access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; (f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority; (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub -processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter; (h) that, in the event of sub -processing, it has previously informed the data exporter and obtained its prior written consent; (i) that the processing services by the sub -processor will be carried out in accordance with Clause 11; 7 Rev. Aug. 2021 Page 64 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda (j) to send promptly a copy of any sub -processor agreement it concludes under the Clauses to the data exporter. Clause 6 - Liabil 1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub -processor is entitled to receive compensation from the data exporter for the damage suffered. 2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub -processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub -processor of its obligations in order to avoid its own liabilities. 3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub -processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub -processor agrees that the data subject may issue a claim against the data sub -processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub -processor shall be limited to its own processing operations under the Clauses. Clause 7 - Mediation and jurisdiction 1. The data importer agrees that if the data subject invokes against it third -party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established. 2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law. Clause 8 - Cooperation with supervisory authorities 1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law. 2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub - processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law. 3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub - processor preventing the conduct of an audit of the data importer, or any sub -processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b). 8 Rev. Aug. 2021 Page 65 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda Clause 9 - GoverninLy law The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely ... Clause 10 - Variation of the contract The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause. Clause 11- Sub-orocessin 1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub - processor which imposes the same obligations on the sub -processor as are imposed on the data importer under the Clauses'. Where the sub -processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub -processor's obligations under such agreement. 2. The prior written contract between the data importer and the sub -processor shall also provide for a third -party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third -party liability of the sub - processor shall be limited to its own processing operations under the Clauses. 3. The provisions relating to data protection aspects for sub -processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established. 4. The data exporter shall keep a list of sub -processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. Clause 12 - Obligation after the termination of personal data-processing services 1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub - processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. 2. The data importer and the sub -processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1. ' This requirement maybe satisfied by the sub -processor co-signing the contract entered into between the data exporter and the data importer. 9 Rev. Aug. 2021 Page 66 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES This Appendix forms part of the Standard Contract Clauses. Data Exporter:The data exporter is the Subscriber in the DPA and Agreement. Data Importer:The data importer is Dude Solutions, Inc. and its Affiliates ("DSI"), who offers a suite of Software -as -a -Service applications, products and services provided as DSI-hosted cloud Service. Data subjects Data Subjects are Subscriber's Authorized Users, including individuals, employees, contracts or other Representatives and Subscriber's end users/customers. . Categories of data Data Exporter may submit a) identification and contact data (e.g. name, address, GPS location, contact details); b) general organizational data (such as your department, job title, area of responsibility); c) IT data (IP addresses, passwords, access rights, cookies data and usage data); d) special categories of personal data (including, for example, data concerning health); and e) other information voluntarily disclosed by Subscriber. Processing operations Personal Data may be Processed for the following purposes: (1) to provide the Service, (2) to meet DSI's service level commitments and provide technical support, and (3) otherwise to fulfill the obligations set out in the Agreement. APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES This Appendix forms part of the signed Standard Contract Clauses. Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c)as set forth at: https://www.dudesolutions.com/terms 10 Rev. Aug. 2021 Page 67 of 298 DocuSign Envelope ID: A5F256AE-0849-451B-9386-B403C4AB87D2 Back to Agenda SCHEDULE B: Subprocessors DSI uses its Affiliates, certain platform subprocessors, infrastructure suppliers and other third party business partners to provide Service to its Subscribers. The complete list of Subprocessors is set forth at: https://www.dudesolutions.com/privacy 11 Rev. Aug. 2021 Page 68 of 298 Back to Agenda Dude SolutionSTM CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this "Agreement") is made as of the date of signature below (the "Effective Date") by and between Dude Solutions, Inc. (together with its affiliates, "Company") and "Party B" identified below to protect Confidential Information (defined in Section 1) that they may disclose to each other concerning an existing or potential business relationship between them ( the "Purpose"). The party disclosing Confidential Information under this Agreement is referred to herein as a "Disclosing Party," and a party receiving Confidential Information under this Agreement is referred to herein as a "Receiving Party." AGREEMENT In consideration of furnishing the other party with Confidential Information, the mutual covenants contained herein and, if applicable, for other good and valuable consideration, Company and Party B each agree as follows: 1. The term "Confidential Information" shall mean all non-public information maintained in confidence by Disclosing Party and received by Receiving Party in any form or medium, that is identified as confidential, proprietary or that a reasonable person should have known, was the Confidential Information of the other party given the nature of the circumstances or disclosure. Confidential Information may include without limitation: information about clients, services, products, software, data, technologies, formulas, processes, know-how, plans, operations, research, personnel, suppliers, finances, pricing, marketing, strategies, opportunities and all other aspects of business operations and any copies or derivatives thereof. Confidential Information includes information belonging to a third party that may be disclosed only under obligations of confidentiality. Notwithstanding the foregoing, Confidential Information shall not include information that Receiving Party can demonstrate: (a) is or becomes generally known to the public without breach of any obligation by Receiving Party; (b) is received from a third party without breach of any obligation owed to Disclosing Party; or (c) is or has been independently developed by Receiving Party without the benefit of Confidential Information. 2. The parties acknowledge that each party considers the Confidential Information it discloses to be valuable, confidential and a potential trade secret. Receiving Party shall (i) use such information solely for the Purpose, and not for Receiving Party's own or any third party's benefit; (ii) use the same degree of care as Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of Confidential Information; and (iii) restrict access to Confidential Information to its officers, directors, agents, contractors, employees or representatives (collectively, the "Representatives") who have a need to know such information and who are prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement, including any legal entity the Receiving Party controls, or is controlled by. Receiving Party shall not use, reproduce, or directly or indirectly allow access to the Confidential Information except as herein provided or export Confidential Information to any country prohibited from obtaining such information under any applicable laws or regulations. 3. If Receiving Party is required to disclose any Confidential Information to comply with law, to the extent legally permitted Receiving Party shall: (a) give the Disclosing Party reasonable prior written notice to permit Disclosing Party to challenge or limit any such legally required disclosure; (b) disclose only that portion of the Confidential Information as legally required to disclose; and (c) reasonably cooperate with Disclosing Party, at Disclosing Party's request and expense, to prevent or limit such disclosure. 4. Each party retains all right, title and interest in its Confidential Information and neither party acquires any intellectual property rights under the Agreement. Receiving Party shall not remove any intellectual property right CONFIDENTIAL Rev. Apr 2021 Page 69 of 298 Back to Agenda notice from Confidential Information and shall include such notice on any copies. Any feedback provided by Receiving Party to Disclosing Party related to Disclosing Party's products or services may be used without restriction in the further development of such products and services. Nothing in this Agreement shall be deemed a license to Receiving Party to use the intellectual property. 5. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any unauthorized use or disclosure of Disclosing Party's Confidential Information and agrees to reasonably cooperate with Disclosing Party in its efforts to mitigate any resulting harm. The parties agree that Disclosing Party shall be entitled to seek equitable relief, including an injunction and specific performance without posting bond to prevent unauthorized use or disclosure of Confidential Information, in addition to any other remedies available to Disclosing Party at law or in equity. The parties each waive the defense that an adequate remedy at law exists for any breach or threatened breach of this Agreement. 6. All Confidential Information is provided "AS IS" without warranty of any kind; and Disclosing Party hereby disclaims all warranties, express or implied by law. Receiving Party agrees that Disclosing Party shall not be liable for any damages arising from Receiving Party's use of Confidential Information. 7. This Agreement shall terminate the later of one (1) year from the Effective Date unless earlier terminated by either party upon ten (10) days prior written notice. Notwithstanding expiration or termination, Receiving Party's obligations of confidentiality shall survive for an additional three (3) year period; provided however with respect to any Confidential Information (a) that applicable law requires a longer period of confidentiality (i.e. personally identifiable information), these obligations shall continue in accordance with applicable laws; or (b) identified by the Disclosing Party as trade secret, these obligations shall continue for as long as they are considered trade secret in accordance with applicable laws. 8. At the request of Disclosing Party, the Receiving Party will promptly cease any using of Disclosing Party's Confidential Information and return to Disclosing Party all of Disclosing Party's Confidential Information, together with all copies thereof and all notes, drawings, abstracts and other information relating to the Confidential Information prepared by Receiving Party or any of its Representatives, in any form or medium, and whether or not then in the possession of Receiving Party or in the possession of any of its Representatives. Further, upon request of Disclosing Party, Receiving Party will provide Disclosing Party with a statement, signed by a duly authorized representative of the Receiving Party, verifying that Receiving Party has complied with the terms of this Agreement. Notwithstanding the above, neither party shall be required to erase, delete, alter or destroy back-up media made in the ordinary course of business. 9. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and communications between the parties related to the subject matter, and may be modified only in writing signed by duly authorized representatives of each of the parties. Failure to insist upon strict compliance with any provision of this Agreement shall not be deemed waiver of such provision or any other provision hereof. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. 10. The Company entering into this Agreement, the address to which notices shall be directed under this Agreement and the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement shall depend upon where Party B is domiciled: a. In the United States and all other domiciles not otherwise mentioned, the Company entity is Dude Solutions, Inc., a Delaware corporation, notices shall be addressed to 11000 Regency Parkway, Suite 400, Cary, NC CONFIDENTIAL 2 Rev. Apr. 2021 Page 70 of 298 Back to Agenda 27518, attn: General Counsel, governing law shall be Delaware and the courts with exclusive jurisdiction shall be Delaware without regard to the principles of conflicts of laws, unless otherwise required by applicable law where Party B is a public entity. b. In Canada, the Company is Dude Solutions Canada, Inc., an Ontario corporation, notices shall be addressed to Bay Adelaide Centre, 333 Bay Street, Suite 2400, PO Box 20, Toronto, ON, M51-1 2T6 attn: Dude Solutions General Counsel, governing law shall be Ontario and the courts with exclusive jurisdiction shall be Toronto, Ontario, Canada without regard to the principles of conflicts of laws. C. In the United Kingdom or a country in Europe, the Middle East or Africa, the Company entity is Confirm Solutions Limited, a limited company in England, notices shall be address to Central House Unit C Compass Centre North, Chatham Maritime, Chatham, England, ME4 4YG, attn: General Counsel, governing law shall be England and the courts with exclusive jurisdiction shall be London, England without regard to the principles of conflicts of laws. d. In Australia, New Zealand, a country in Asia or the Pacific region, the Company entity is Assetic Australia Pty Ltd, a proprietary limited company in Australia, notices shall be address to Level 9, 257 Collins Street, Melbourne, VIC 3000 Australia, attn: General Counsel, governing law shall be Australia and the courts with exclusive jurisdiction shall be New South Wales, Australia without regard to the principles of conflicts of laws. 11. This Agreement may be executed and transmitted in counterparts, each of which may be enforceable as an original, but all of which together shall constitute but one agreement. 12. The execution of this Agreement shall not create any agency, partnership, joint venture, association or any other relationship between the parties other than as independent contracting parties. I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date: Company ID: Signed: Name: Title: Date: ("Company") ("Party B") Company ID: Signed: Name: Title: Date: Send notices to Party B at: Address: Address: CONFIDENTIAL 3 Rev. Apr. 2021 Page 71 of 298 Back to Agenda Contract No. 074-14 Amendment No. 1 12/07/2016 City of Port Orchard 216 Prospect Street Port Orchard, WA 98366-5326 360-874-5533 DELIVERING LEAN CIVIC EXCELLENCE Sales Order: 1934 Dear Ellen, Paladin Data Systems Corporation (Paladin) applauds your decision to invest in affordable innovation for your community. We'll be with you every step of the way to ensure a successful and smooth transition to the SMARTGOV suite. Quantity Units Item 1 Site SG Annual Subscription includes: - 12 users - Public Portal with SaaS Transactions - SMARTConnect Financial - SMARTConnect Parcel Hour SG Onsite Training - locked in rate of $150/hour This agreement hereby amends the terms of the Port Orchard, WA Contract No. 074-14/0rder 1059. Term Amount Subscription $16,665.00 Professional Services $0.00 Total Investment = $16,665.00 Total Annual Renewal: $16,665.00 800-532-8448 1 info@paladindata.com 119362 Powder Hill Place NE, Poulsbo, WA 98370 1 www.paladindata.com I page 1 of 2 Page 72 of 298 Back to Agenda - Terms of Service: DELIVERING LEAN CIVIC EXCELLENCE • Offered pricing on this Sales Order is valid if signed by 01/06/2017. • This Sales Order is governed by the agreement found at existing terms and conditions already executed between Paladin and Port Orchard, City of, WA. Thanks for your order and your trust in SMARTGOV to help you save money, increase efficiency, and raise customer service levels. We truly look forward to serving you and your community. Sincerely, Amber Hunt Yes! 1 accept these terms; let's get started today! Authorized Signature and Title at Port Orchard, City of, WA 12 il4 b Date 800-532-8448 1 info@paladindata.com 119362 Powder Hill Place NE, Poulsbo, WA 98370 1 www.paladindata.com I page 2 of 2 Page 73 of 298 Contract No. 074-14 Back to Agenda CSMARTG,oY., Paladin Data Systems Corporation 19362 Powder Hill Place NE Poulsbo, WA 98370-8720 Tel: 360-779-2400 1-800-532-8448 Fax: 360-779-2600 To: City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Date: August 4, 2014 Order: 1059 Ordered by: Jon Byrd Required Date: August 26, 2014 Telephone: 360-874-5533 Fax: Contact Person: Nick Bond Email: nbond@cityofportorchard.us Purpose of this Sales Order: City of Port Orchard, WA is purchasing a subscription for SMARTGov® Software as a Service (SaaS) which comprises the following core modules: permitting, planning, code enforcement, inspections, licensing, recurring inspections, cashiering, and GIS mapping. This includes the modification of the following five system reports/output documents to client's specifications: permit, receipt, certificate of occupancy, inspection resuits, and inspection hardcard. In addition, this purchase includes SMARTConnectors, professional services for data migration, configuration, training, and travel expenses as identified below. This SaaS Subscription includes five free "occasional named users" which individually average less than 30% usage during an 8 hour day. Special Terms for City of Port Orchard: City of Port Orchard will sign this Sales Order no later than August 26, 2014. If signed no later than August 26, 2014, the start date for SMARTGov SaaS will be on or before Nov. 1, 2014. First Term: (Nov, 1, 2014 — Dec. 31, 2015) • The first term will be approximately 12-14 months (if start date is before Nov. 1, 2014). • The first term does not include a Public Portal in the SaaS Subscription Fees • Total subscription for first term: (12 mo. SMARTGov: $12,900) + (2 mo. Prorated SMARTGov: $969) = $13,869 Second Term: (Jan. 1, 2016 — Dec. 31, 2016) • The second term will be for the SaaS Subscription Term listed below: 12 months • The second term, the Public Portal to be turned on and the Public Portal fee will be included in the SaaS Subscription Fees • Total Subscription: (12 mo. SMARTGov: $16,665) No prorated costs Annual Training ($3840-3 eight hour days) Total SaaS Subscription and Annual Training for second term = $20,505 Third Term and beyond: (Jan. 1 st — Dec. 31 st) • The third term and beyond will continue with the 12 months SaaS Subscription Term • The third term and beyond, the SaaS Subscription will be : SMARTGov: $16,665 or the then current rate • Annual Training ($3840--3 eight hour days ) • Total SaaS Subscription and Annual Training for third term = $20,505 Start date: On or Before Nov. 1, 2014 SaaS Subscription Term: 12 months from the SaaS Subscription start date SGSalesv1113 Page 1 of 4 Page 74 of 298 Back to Agenda Contract No. 074-14 CSMARTCaw,: Sales tax not included. If tax exem t, lease provide a coRy of tax exempt certificate. Fees for SMARTGov SaaS Subscription - First Term: Nov. 1, 2014 — Dec. 31, 2015 12 Users' SMARTGov®SaaS (1st term without public portal) $1,046 $12,560 1 Connectors SMARTConnector SaaS Transaction $350 $350 0 Users' SMARTInspection Assistant $600 NIA Subtotal for SMARTGov SaaS Subscription fees for first term $12,900 Subtotal for SMARTGov SaaS Subscription Prorated fees for first term $969 Fees for SMARTGov SaaS Subscription - Second Term: Jan. 1, 2016 — Dec. 31, 2016 12 Users' SMARTGov®SaaS (2"d term and beyond with public portal) $1,360 $16,315 1 Connectors SMARTConnector SaaS Transaction $350 $350 0 Users' SMARTInspection Assistant $600 NIA Subtotal for SMARTGov SaaS Subscription fees for second term $16,666 Annual Training" (optional additional service to be added to the 3 Days annual SaaS Subscription invoice, startingwith second term)$1,280 $3,840 Fees for SM ARTCon nectors -(Optional Additional Services) Parcel Connector 1 Site Create procedure to import parcel data from master parcel $3,500 $3,500 source Financial Connector 1 Site Create procedure to export financial transaction data into one $3,500 Free delimited text file Subtotal for SMARTConnectors $3,500 Fees for Professional Services and Expenses (Optional Additional Services) 60 Per Hour Data Migration2 $160 Free Interlocking data migration only 20 Per Hour Report Configuration2 $160 $3,200 0 Per Hour Fee Configuration2 $160 NIA General Configuration2 40 Per Hour Assist with basic configuration of permit types, fees, and $160 $6,400 inspections SGSalesv1113 Page 2 of 4 Page 75 of 298 Back to Agenda Contract No. 074-14 C MAM®Ir,- Training2 40 Per Hour Webinar style training or on site $160 $6,400 1 Week Travel expenses3 (estimate) $850 $850 Subtotal for Professional Services and expenses $16,860 Total for first term: SMARTGov SaaS Subscription fees, Prorated fees, SMARTConnectors, and Professional Services and expenses $34,219 without sales tax SMARTGov SaaS Subscription second term $16,665 SMARTGov SaaS Subscription third term and beyond (or the $16,665 then current fees) 117 User Subscriptions will be set up in the system and will be subject to monitoring and amendment of the number of User Subscriptions and fees under Section 5.1(a) of the Master Saas and Professional Services Agreement. 2Estimate only. While We make this estimate in good faith, We will not exceed without written confirmation from You and will notify You as soon as We know that the required work will exceed the original estimate. 3Travel expenses: Airfare will be billed according to actual rates; however, We will purchase coach class tickets. Lodging will be billed according to the actual rates; however, We agree to book government rate lodging if available. Car rental will be billed according to actual rates; however, We agree to rent economy car if available. Meals and incidental expenses will be billed according to per diem rates as contained in the published GSA per diem rates. 4 Annual Training is an optional additional service City of Port Orchard has requested to be added to the annual SaaS Subscription invoice, starting with second term. Training will take place at Paladin Data Systems Corporation. If training at City of Port Orchard, actual travel expense will be charged as a separate invoice after training. 50% of SMARTGov ® total SaaS Subscription fees for year 1 without Public Portal, and with $8,200 SMARTConnectors. Invoiced upon contract signing. ($12,900 + $3,500) 60% of SMARTGov ® total SaaS Subscription fees for year 1 without Public Portal, and with $8,200 SMARTCon n actors. Invoiced at start date. ($12,900 + $3,600) 2 mo. Prorated SMARTGov to be invoiced at start date. $959 Professional Services and travel expenses to be invoiced monthly as they occur ($16,850) Monthly 100% of SMARTGov ® SaaS total with Public Portal for terms 2, 3 and beyond due at start date $16,665 anniversary for renewals. 100% of Annual Training (3 eight hour days) Portal for terms 2, 3 and beyond due at start date $3,840 anniversary for renewals. _ SGSalesv1113 Page 3 of 4 Page 76 of 298 Contract No. 074-14 Back to Agenda �SMART69Y. This Paladin Data Systems Corporation Sales Order ("Sales Order") is entered into by City of Port Orchard, WA ("You or Your") and Paladin Data Systems Corporation ("We, Us or Our" and, together with You, the "Parties" and each a "Party") as of the Sales Order Effective Date. By signing this Sales Order, You agree to the terms and conditions contained in this Sales Order and the Master Saas and Professional Services Agreement, which is incorporated herein by this reference. This Sales Order is effective as of the last date set forth below (the "Sales Order Effective Date"). City of port Orchard, WA Signature Print Name 6h p v = - - -- Print Title B,a-2--aDIV Date ATTE Brandy Ri*AMI)' if��i �VIC, City Clerk ,`.••••.�'p'�., 0 pt A rF .s prEMO .• �.,, SGSalesv 1113 Paladin Data xW7 Nrint Name C 01-r— C Print Title � TI 20 Date Page 4 of 4 Page 77 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement THIS MASTER SOFTWARE AS A SERVICE (SaaS) SUBSCRIPTION AND PROFESSIONAL SERVICES AGREEMENT ('AGREEMENT-) GOVERNS YOUR ACQUISITION AND USE OF OUR SaaS SUBSCRIPTION AND PROFESSIONAL SERVICES. BY EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SaaS SUBSCRIPTION OR THE PROFESSIONAL SERVICES. You may not access the SaaS Subscription if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the SaaS Subscription for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on August 2B, 2013. it Is effective between You and Us as of the date of Your acceptance of this Agreement and the Sales Order ("Effective Date"), 1. DEFINITIONS IN addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings; 1.1. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 1.2. "Malicious Code" means viruses, worms, time bornbs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. 1.3. "Non-SMARTGov Applications" means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that Interoperate with the SaaS Subscription. 1.4. "Party or Parties" means either We, Us, or Our, as well as You or Your individually or collectively, 1.5. "Professional Services" means the labor or time and materials work that You or Your Affiliates purchase under a Sales Order. 1.6. "SaaS Subscription" means the software as a service ("Seas") products ordered by You on a Sales Order and made available by Us online via the customer login link and/or other web pages designated by Us, including associated offline components, as described in the User Guide. SaaS Subscription excludes Non-SMARTGov Applications. 1.7. "Sales OrdeP' means the documents for placing orders, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements. By entering into a Sales Order, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party. Sales Orders will be deemed incorporated herein by reference. I.B. "Third Party" means any entity or individual other than We, Us, or Our, as well as You or Your. 1.9. "User Guide" means the online user guide for the SaaS Subscription, accessible via login, as updated from time to time. 1.10, "Users" means individuals who are authorized by You to use the SaaS Subscription, for whom subscriptions have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request), Users may include, but are not limited to Your employees, consultants, contractors and agents, and any Third Party with which You transact business. 1.11. "We," "Us" or "Our" means Paladin Data Systems Corporation described in Section 14.1 (Contracting Seller, Notices, Governing Law and Jurisdiction). 1,12. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity. 1.13. "Your Data" means all electronic data or information owned by Your company or other legal entity and submitted by You to the SaaS Subscription. SMART ov..' PJacmu 6y rand, Page 1 of 8 MSGP5A-Sv0813 Page 78 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement 2. SaaS SUBSCRIPTION AND PROFESSIONAL SERVICES 2.1. Provision of SaaS Subscription. We will make the SaaS Subscription available to You pursuant to this Agreement and the relevant Sales Order during a subscription term. You agree that Your purchases are not contingent on the delivery of any future functionality or features, and not dependent an any oral or written public comments made by Us regarding future functionality or features. 2.2. User Subscriptions. Unless otherwise specified in the Sales Order, (1) SaaS Subscription are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as the pre- existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions will terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the SaaS Subscription. 2.3. Provision of Professional Services. We will provide to You the Professional Services specified on the Sales Order, The Professional Services are cost estimates based on time and materials work for Your budgeting and Our resource scheduling purposes, If the estimate is exceeded, We will continue to provide the Professional Services on a time and materials basis if a statement of work or purchase order for continuation of the Professional Services is signed by the Parties. 3, USE OF THE SaaS SUBSCRIPTION 3.1. Our Responsibilities. We will: (i) provide Our basic support for the SaaS Subscription to You at no additional charge (ii) use commercially reasonable efforts to make the SaaS Subscription available and (Ili) We will provide You access to Your Data via a database extract process that enables You to execute and download a current copy of Your Data on demand. 3.2. Your Responsibilities. You will (i) be responsible for Users' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Subscription, and notify Us promptly of any such unauthorized access or use, and (iv) use the SaaS Subscription only in accordance with the User Guide and applicable laws and government regulations, (v) validate for correctness all output and reports and (vi) have sole responsibility for downloading and storing back-up files, (vii) You will NOT (a) make the SaaS Subscription available to anyone other than Users, (b) sell, resell, rent or lease the SeaS Subscription to any Third Party, (c) use the SaaS Subscription to store or transmit Infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights, (d) use the SaaS Subscription to store or transmit Malicious Code, (a) Interfere with or disrupt the integrity or performance of the SaaS Subscription or Third Party data contained therein, or (f) attempt to gain unauthorized access to the SaaS Subscription or their related systems or networks. 4. NON-SMARTGov PROVIDERS 4.1. Acquisition of SMARTGov Products. We or a Third Party may from time to time make available to You, Third Party products or services, including but not limited to Non-SMARTGov Applications and implementation, customization and other consulting services. Any acquisition by You of Non-SMARTGov products or services, and any exchange of data between You and any Non-SMARTGov provider, is solely between You and the applicable Non-SMARTGov provider. We do not warrant or support Non-SMARTGov products or services, except as specified in a Sales Order. Subject to Section 4.3 (integration with Non- SMARTGov Applications), purchase of Non-SMARTGov products Is not required to use the SaaS Subscription except for a supported computing device, operating system, web browser and Intemet connection, 4.2. Non-SMARTGov Applications and Your Data. If You Install or enable Non-SMARTGov Applications for use with Sea$ Subscription, You acknowledge that We may allow providers of those Non- SMARTGov Applications to access Your Data as required for the interoperation of such Non-SMARTGov Applications with the Sea$ Subscription, We will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-SMARTGov Application providers. The SaaS Subscription will allow You to restrict such access by restricting Users from installing or enabling such Non- SMARTGov Applications for use with the SeaS Subscription, Pusn,,d by Pavwm Page 2 of 8 MSGPSA-Sv0813 Page 79 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement 4.3. Integration with Non-SMARTGov Applications. The SaaS Subscription may contain features designed to operate with Non-SMARTGov Applications. To use such features, You may be required to obtain access to such Non-SMARTGov Applications from their providers. If the provider of any Non- SMARTGov Application ceases to make the Non-SMARTGov Application available for operation with the corresponding SaaS Subscription features on reasonable terms, We may cease providing such SaaS Subscription features without entitling You to any refund, credit, or other compensation. 5. FEES AND PAYMENT 5.1. Fees. You will pay all fees specified In all Sales Orders. Except as otherwise specified herein or in a Sales Order, (1) fees are based on SaaS Subscription and/or Professional Services purchased and not actual usage, (ii) payment obligations are non -cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the subscription term stated on the Sales Order. User subscription fees are based on annual periods that begin on the subscription start date and each annual anniversary; therefore, fees for User subscriptions added in the middle of an annual period will be charged a prorated amount for the remaining subscription term. (a) If We determine, based on electronic monitoring of Your User subscriptions, the actual number of User subscriptions exceeds the number licensed on a Sales Order, We reserve the right to amend the Sales Order for successive Renewal Terms to increase the number of User subscriptions and the fees. (b) Professional Service fees do not include travel, lodging or other expenses incurred by Us unless specified on the Sales Order. You will reimburse Us for all travel, lodging, communications, incidentals and other out-of-pocket expenses as they relate to the services rendered by Us to You, 5.2. Invoicing and Payment. We will invoice You in advance for SaaS Subscription in accordance with the relevant Sales Order. We will invoice You monthly for Professional Services In accordance with the relevant Sales Order. Unless otherwise stated in the Sales Order, invoiced charges are due net 30 days from the invoice date. 5.3. Overdue Payments. if any payments are not received by the due date, then at Our discretion, (a) such overdue payments may accrue late Interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Sales Orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment). 6A. Suspension of SaaS Subscription or Professional Services, If any amount owing by You under any agreement is 30 days' overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Our SaaS Subscription or Professional Services to You until such amounts are paid in full. 5.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Payments) or 5.4 (Suspension of SasS Subscription or Professional Services) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. 5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdictton (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible, the appropriate amount will be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable based on Our income, property and employees. 6. PROPRIETARY RIGHTS 6.1. Reservation of Rights In SaaS Subscription. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest In and to the $as$ Subscription, including all related intellectual property and trademark rights. No rights are granted to You other than as expressly set forth herein. 6.2. Restrictions. You will not (i) permit any Third Party to access the SaaS Subscription except as permitted herein or in a Sales Order, (11) create derlvate works based on the SaaS Subscription, (iii) copy, frame or mirror any part or content of the $as$ Subscription, other than copying or framing on Your own intranets or otherwise for Your own Internal business purposes, (iv) reverse engineer, decompile or raRamu oy raia,hn Page 3 of S Ms6vsA-Svo913 Page 80 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement otherwise attempt to derive source code, or (v) access the SaaS Subscription In order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the SaaS Subscription. 6.3. Ownership. We retain sole and exclusive ownership of, and all right, title and interest in and to the SeaS Subscription, the documentation User Guide, any modifications and all suggestions, ideas, improvements, feedback, evaluation materials, presentations, designs, technology, inventions, know- how, works of authorship, software, specifications, and other materials, information and any other intellectual property made, developed, conceived or reduced to practice by Us (whether alone, or jointly with You) in the performance of this Agreement, 6.4. Your Applications and Code. If You, a Third Party acting on Your behalf, or a User creates applications or program code using the SaaS Subscription, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessaryfor Us to provide the Sea$ Subscription in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein. 6.5. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, Including any intellectual property rights therein. You grant to Us a non-exclusive license to use Your Data for the purposes of performing Our obligations under this Agreement. 6.6. Our Protection of Your Data. We receive no ownership rights in Your Data. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the SaaS Subscription or Professional Services and prevent or address service or technical problems, (d) or at Your request in connection with customer support matters. 6.7. Report Writer Software. You acknowledge the SaaS Subscription Service utilizes ad hoc report writer software ("Act Floc") under a license granted to Us by a Third Party, which licenses Us the right to sublicense the use of the Ad Hoc as partof the Service to You. Such sublicense is nonexclusive and solely for Your internal use and You may not further resell, re -license, or grant any other rights to use such sublicense to any Third Party. You further acknowledge the Ad Hoc licensing Third Party retains all right, title, and interest to the Ad Hoc and all documentation related to the Ad Hoc, All confidential or proprietary information of Ad Hoc licensing Third Party Is Confidential information under the terms of this Agreement. 7. CONFIDENTIALITY 7.1, Definition of Confidential Information. "Confidential Information" means all confidential information disclosed by a Party (NDIsclosing Party") to the other Party ('Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information will include, but not be limited to Your Data; Our Confidential information will include, but not be limited to the SaaS Subscription; and Confidential Information of each Party will include the terms and conditions of this Agreement and all Sales Orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information will not include any Information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (11) was known to the Receiving Party prior to Its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (lit) is received from a Third Party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 7.2. Protection of Confidential information. The Receiving Party (i) will use the same degree of care that it uses to protect the confidentiality of Its own confidential Information of like kind (but in no event less than reasonable care) (11) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ill) except as otherwise authorized by the Disclosing Party in writing, will limit access to Confidential Information of the Disclosing Party to its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement. Neither party will disclose the terms of this Agreement or any Sales Order to any Third Party other than its Affiliates and their legal counsel and accountants without the other Party s prior written consent. 7.3, Compelled Disclosure. If the Receiving Party is required to disclose any Confidential Information of the other by law, regulation or governmental authority, the Receiving Party will provide reasonable notice qpA§�t)ov­ IbxmrU Oy P.HdRn Page 4 of 8 MSGPSA-SVO813 Page 81 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement to Disclosing Party of such required disclosure and reasonably cooperate with the Disclosing Party in preventing or limiting such disclosure, or obtaining an appropriate protective order or other remedy. If a protective order or other remedy is not obtained, then the Receiving Party may disclose such Confidential Information as necessary for compliance with the applicable law, regulation or governmental authority. Notwithstanding such disclosure, such information will remain Confidential Information and subject to the requirements of this Section. 8. WARRANTIES AND DISCLAIMERS FOR SaaS SUBSCRIPTION AND PROFESSIONAL, SERVICES 8.1. Our Warranties for SaaS Subscription. We warrant that (1) We have the legal power to enter into this Agreement, (11) the SaaS Subscription will perform materially in accordance with the User Guide, (tit) subject to Section 4.3 (Integration with Non-SMARTGov Applications), the functionality of the SaaS Subscription will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code Into the SaaS Subscription and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy will be as provided in Section 13.4 (Termination for Cause) and Section 13.6 (Refund or Payment upon Termination) below. 8.2. Our Warranties for Professional Services. We warrant the Professional Services will be performed consistent with generally accepted industry standards. 8.3. Disclaimer, EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 8. LIMITATION ON WARRANTIES FOR PROFESSIONAL SERVICES YOU MUST REPORT ANY DEFICIENCIES IN THE PROFESSIONAL SERVICES TO US IN WRITING WITHIN THIRTY (30) DAYS OF COMPLETION OF THE PROFESSIONAL SERVICES IN ORDER TO RECEIVE WARRANTY REMEDIES. THE WARRANTY HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, 10. EXCLUSIVE REMEDY FOR PROFESSIONAL SERVICES For any breach of the above warranty, Your exclusive remedy, and Out entire liability, will be the re - performance of the Professional Services. If We are unable to re -perform the Professional Services as warranted, You will be entitled to recover the fees paid to Us for the deficient services. IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM ANY PROFESSIONAL SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR LOST PROFITS OR OTHER ECONOMIC DAMAGES. 11. LIMITATION OF LIABILITY 11.1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) WILL EXCEED THE AMOUNT PAID BY YOU IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SaaS SUBSCRIPTION). 11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. CSMART(Nov- Page 5 of 8 MSGPSA-S40813 Page 82 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement 12. TERM AND TERMINATION FOR PROFESSIONAL SERVICES Professional Services will commence an the date specified on the Sales Order. Either Party may terminate Professional Services any time by providing the other Party with at least 14 days written notice. Any Professlonai Services outstanding at the time of termination will continue to be covered by this Agreement as if it had not been terminated, 13. TERM AND TERMINATION FOR Saab SUBSCRIPTION 13.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions have expired or been terminated. 13,2, Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Sales Order and continue for the subscription term specified. Except as otherwise specified in the applicable Sales Order, all User subscriptions will automatically renew for additional periods equal to the expiring one year subscription term, unless either Party gives the other notice of non -renewal at least 30 days before the and of the relevant subscription term, The pricing during any such renewal term will be the same as the prior term unless We have given You written notice of a pricing increase at least 180 days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. 13.3. Stop in SaaS Subscription. Upon 180 days' prior written notice, We may terminate provision of the SaaS Subscription as a hosted offering. We will export and return Your Data to You via digital media at Our expense. We will refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of stop in SeaS Subscription. 13.4. Termination for Cause, A Party may terminate this Agreement for cause; (1) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (11) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to Insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, We may terminate this Agreement if You fall to make any payment due hereunder within 30 days after receiving written notice from Us that such payment is delinquent. 13.5. Effect of Termination. Upon termination for any reason, (a) all licenses granted will automatically and Immediately terminate, and We may immediately disable and discontinue Your access to and use of the SaaS Subscription without further notice to You, (b) You will promptly return to Us all Documentation and all information and materials that You have acquired pertaining to the SaaS Subscription and any other Confidential Information of Ours and (c) within 30 days of the effective date of such termination, We will export all Your Data then -stored in the Service and ship the information to You in a digital format. 13.6. Refund or Payment upon Termination. Upon any termination by You for cause, We will refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Us for cause, You will pay any unpaid fees covering the remainder of the term of all Sales Orders after the effective date of termination. In no event will any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination, 13.7. Return of Your Data. Within 30 days after the effective date of termination of SaaS Subscription and upon request by You, We will make available to You for download a file of Your Data. After such 30- day period, We will have no obligation to maintain or provide any of Your Data and will thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. 13.8. Surviving Provisions. Section 5 (Fees and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 11 (Limitation of Liability), 13.6 (Refund or Payment upon Termination), 13.7 (Return of Your Data), 14 (Contracting Seller, Notices, Governing Law and Jurisdiction) and 15 (General Provisions) will survive any termination or expiration of this Agreement. 14. CONTRACTI N G SELLER, NOTICES, GOVERNING LAW AND JURISDICTION 14.1. Seller. Paladin Data Systems Corporation, a Washington corporation. 14.2. Address notices to: 19362 Powder Hill Pl. NW, Poulsbo, WA 98370, Attn: Contracts 14.3. Governing law: Washington and controlling United States federal law 14.4. Exclusive court jurisdiction: Kitsap County, Washington 14.5. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals will be in writing and will be deemed to have been given upon: (i) personal SSMARTGgo r., Po vw6 Uy Nlaem Page 6 of 8 MSGPSA-Sv0813 Page 83 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement delivery, (H) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email will not be sufficient for notices of termination or an Indemnlfiable claim). Billing -related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant SaaS Subscription system administrator designated by You. 14.6. Agreement to Governing Law and Jurlsdtctlon. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. 14.7. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 15. GENERAL PROVISIONS 15.1. Amendment; No Waiver. Except as otherwise expressly provided herein, this Agreement may not be amended or modified and the observance of any provision of this Agreement may not be waived except with the written consent of the Parties. No failure by either Party to enforce any rights hereunder will constitute a waiver of such right then or in the future or any other right or remedy hereunder. To the extent the terms and conditions of any Exhibit, attachment, purchase order, invoice, proposal or response to request far proposal, conflict with or are inconsistent with this Agreement, the terms and conditions of this Agreement will control and no such conflicting terms will be deemed as a waiver or amendment of this Agreement. 15.2. Anti -Corruption. You have not received or been offered any illegal or Improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify its, 15.3. Assignment; Binding Effect. This Agreement may not be transferred or assigned by either Party without the express written consent of the other, which will not be unreasonably withheld or delayed, except that either Party may, without the consent of the other Party, assign this Agreement in its entirety to a parent, subsidiary or affiliate of such Party or an acquirer of more than 50% of the assigning Party's outstanding voting capital stock or to a purchaser of all or substantially all of the assigning Parry's assets. Notwithstanding the foregoing or any other provision of this Agreement, You may not assign, sublicense, delegate or transfer this Agreement or any of its rights or obligations under this Agreement to any competitor of Ours. Any purported transfer or assignment in contravention of this Section will be null and void, This Agreement will Inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. 15.4. Basis of Bargain. The Parties acknowledge that they have entered into this Agreement in reliance upon the disclaimers of warranties and limitations of liability and damages as set forth in this Agreement, and that such provisions form an essential basis of the bargain between the Parties and do not cause this Agreement, or the remedies available hereunder, to fail of its or their essential purpose. 15.5. Counterparts. This Agreement may be executed in any number of English language counterparts or duplicate originals, and each such counterpart or duplicate original will constitute an original instrument, but all such separate counterparts or duplicate originals will constitute one and the same instrument. 15.6. Entire Agreement, This Agreement, including the Exhibits attached, constitutes the entire Agreement of the Parties concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter of this Agreement. 15.7, Export Compliance. The SaaS Subscription, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied -party list. You will not permit Users to access or use SaaS Subscription in a U.S.-embargoed country or In violation of any U.S. export law or regulation. 15.8. Force Majeure. Except with respect to payment obligations, neither Party will be liable for any failure of performance or equipment due to causes beyond such Party's reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, s ARTGovi Page 7 of S MSUSA-Sv0813 Page 84 of 298 Back to Agenda Paladin Data Systems Corporation Master SaaS Subscription and Professional Services Agreement Insurrections, riots, wars; unavailability of rights -of -way or materials; or strikes, lock -outs, work stoppages, or other labor difficulties. 15.9. Headings and Interpretation. Headings and captions are for convenience only and are not to be used In the Interpretation of this Agreement. The words "Include,' 'Includes,' and °including° when used in th€s Agreement wiii be treated in each case as followed by the words "without limitation." 15.10. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a {partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 15,11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain In effect. 15.12. Insurance and Risk of Loss. You bear all responsibility for damages to Your equipment and facilities. CSUARI"OV, I•aw—d by PA din Page 8 of 8 M5GP5A•Sv0813 Page 85 of 298 Back to Agenda From: Jim Nall To: Ellen Ferguson Subject: Announcement - Dude Solutions acquires Paladin Data Systems Date: Tuesday, May 1, 2018 12:31:18 PM May 1, 2018 Dear Ellen, I am pleased to announce that Paladin Data Systems Corporation and its enterprise products and services, including SMARTGOV and ASMi, have been acquired by Dude Solutions, Inc., a leading softwa re -as -a -service (SaaS) provider of operations management solutions for both the public and private sector. We are very excited to become part of Dude Solutions because it means we can now provide a more holistic suite of SaaS solutions for our local and state government agencies. This partnership combines all of Paladin's years of experience and unparalleled product expertise with Dude Solutions' market -leading products, delivery, performance and world -class support. Dude Solutions has served the government, education and healthcare industries, among others, for nearly two decades. With more than 10,000 clients and millions of users, Dude Solutions has the world's largest database of operations data. With advanced data analytics capabilities, Dude Solutions is able to help organizations with capital forecasting, predictive maintenance, energy conservation, IT optimization and more. Partnering with Dude Solutions provides a much wider resource and support network for Paladin clients. With nearly 600 employees, Dude Solutions offers a number of products that are complementary to SMARTGOV, including a platform for managing all of your assets, both linear and non -linear, a solution for optimizing capital planning and budgeting, and an offering for dramatically reducing energy costs. Our new relationship will provide additional resources for us to continue making updates and enhancements to the Paladin offerings, and in turn you will see those enhancements in our products and services as a benefit to you. We encourage you to learn more about this exciting announcement by reading our FAQs, and we welcome you to visit Dude Solutions for additional information. Sincerely, 0 Jim Nall President, Paladin Data Systems Page 86 of 298 Back to Agenda u 877-367-4572 or360-779-2400 Paladin Data Systems I Poulsbo, WA 19362 Powder Hill Place NE • Poulsbo, WA 98370 • United States • Click here to unsubscribe. Page 87 of 298 Back to Agenda City of Port Orchard Council Meeting Minutes Work Study Session Meeting of September 21, 2021 CALL TO ORDER AND ROLL CALL Mayor Putaansuu called the meeting to order at 6:30 p.m. Roll call was taken by the City Clerk as follows: Mayor Pro-Tem Ashby Councilmember Chang Councilmember Clauson Councilmember Cucciardi Councilmember Diener Councilmember Lucarelli Councilmember Rosapepe Mayor Putaansuu Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Staff present via remote access: Community Development Director Bond, Long Range Associate Planner Sallee, City Attorney Robertson, and Deputy City Clerk Floyd. The meeting is also streaming live on YouTube. Pledge of Allegiance Mayor Putaansuu led the audience and Council in the Pledge of Allegiance. DISCUSSION ITEMS 1. Presentation: Update on Design of South Kitsap Community Events Center Mayor Putaansuu introduced John Morrissey, the City's representative on the Public Facilities Board, and thanked him for supporting this project. He is a valuable member of our steering committee. Lori Limson Cook, Steve Rice, Michael Wright, Angie Tomisser, and Leah Delaney with Rice Fergus Miller, provided a presentation on the interior and exterior building design concept which included event space, common spaces, library, outdoor covered spaces, service entrances, public feedback, views of the event center from the street and waterside, and outdoor decks. Additional discussion was held regarding solar arrays, steps of the next phase, community conversations, graffiti, and compliments to Rice Fergus Miller for the design concept shown tonight. Council Direction: No direction was given to staff. Page 88 of 298 Back to Agenda Minutes of September 21, 2021 Page 2 of 3 EXECUTIVE SESSION At 7:12 p.m., Mayor Putaansuu recessed the meeting for a 10-minute executive session pursuant to RCW 42.30.110(1)(i), to discuss with legal counsel legal risks of a proposed action when public discussion may have adverse financial or legal consequences for the agency. City Attorney Robertson and Community Development Director Bond were invited to attend, and Mayor Putaansuu announced no action would follow. At 7:22 p.m., Mayor Putaansuu extended the executive session for an additional 5-minutes. At 7:27 p.m., Mayor Putaansuu reconvened the meeting back into session. 1. POMC Title 20 Amendments -Legislative Housing Requirements Community Development Director Bond said in 2019, the state legislator passed new laws concerning certain types of housing which included shelters, and transitory and supportive housing. We have a mandate based on the legislation passed this last spring to adopt changes to our land use code by the end of September. We are required to adopt regulations that will allow indoor emergency housing and shelters, permanent supportive housing, and transitional housing. In some cases, we have to allow these uses in areas where we also allow either residential housing or hotels and motels. The only flexibility we have is we could establish buffers, but we have to open the door to these types of uses within our City. We could also choose to make these uses permitted outright or to be a conditional use where you would have a conditional use permit hearing. The benefit of permitting outright is it streamlines the process, but it could come at a cost to a neighborhood or have impacts when those neighbors don't have the opportunity to come to a public hearing. In the proposed ordinance, the indoor emergency housing and indoor emergency shelters are conditional use permits only, and they are only allowed in five zones; the neighborhood mixed use; commercial mixed use; downtown mixed use; commercial corridor; and commercial heavy zones. Regarding the permanent supportive housing, we are proposing to make conditional uses in the R1 and R2 zones, but they would be permitted outright in the R3 and in every other zone where we allow housing and/or hotels and motels. Lastly, we propose to make transitional housing a conditional use permit in all zones except for commercial corridor and commercial heavy where they would be permitted outright. This has gone before the Planning Commission who voted to move forward with the ordinance. Council can make amendments to this proposal, as long as it is consistent with state law. Discussion was held regarding making all uses to be conditional use to allow for public input as it is important for the neighbors to know and understand what is being allowed in their neighborhood, and the definitions of each of the uses. Page 89 of 298 Back to Agenda Minutes of September 21, 2021 Paee 3 of 3 Council Direction: Council directed staff to update the ordinance to allow conditional use with a public hearing for indoor emergency housing, indoor emergency shelters, permanent supportive housing, and transitional housing, and bring back to Council on September 28, 2021, for adoption. 2. POMC Title 20-Amendments for Congregate Living Land Use Community Development Director Bond said the proposal before you tonight is about changing our zoning code so a particular use could be established in other parts of the City. The use is congregate living which is already in the land use table; however, there is no definition in our code. This is a housing type that contains sleeping units where non -transient residents can share a bathroom, kitchen facility, or both. This is a conditional use except in the gateway mixed use zone. We also want to limit the facility so that they can only be in a certain proximity of transit. As an example, Mr. Bond spoke to a non -conforming church building in which a purchaser is interested in converting into a congregate living facility. If the code is changed, they would be able to apply for a conditional use permit which would go through a permitting process which includes a hearing before the hearing examiner and sending notices to the people within 300 feet of the property. Additional discussion was held regarding support of this code change, public comments during Planning Commission meeting, locations to availability of transit, service on demand and fixed transit routes, and allowing this use to be citywide. Council Direction: Council directed staff to update the proposed ordinance to allow the use within a quarter mile radius of a transit route citywide, and bring back to Council on September 28, 2021, for adoption. GOOD OF THE ORDER Councilmember Rosapepe urged everyone to stay safe, mask up, and vaccinate. Mayor Putaansuu noted there is a special Health Board meeting on September 281h and provided a brief update of COVID cases. ADJOURNMENT The meeting adjourned at 7:58 p.m. No other action was taken. Audio/Visual was successful. Jenine Floyd, CIVIC, Deputy City Clerk Robert Putaansuu, Mayor Page 90 of 298 Back to Agenda City of Port Orchard Council Meeting Minutes Regular Meeting of September 28, 2021 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 City Clerk as follows: Mayor Pro-Tem Ashby Councilmember Chang Councilmember Clauson Councilmember Cucciardi Councilmember Diener Councilmember Lucarelli Councilmember Rosapepe Mayor Putaansuu Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Present via Remote Access Staff present via remote access: Finance Director Crocker, Public Works Director Dorsey, Police Chief Brown, Community Development Director Bond, HR Manager Lund, City Attorney Archer, City Clerk Rinearson, and Deputy City Clerk Floyd. The meeting is also streaming live on YouTube. A. PLEDGE OF ALLEGIANCE Mayor Putaansuu led the audience and Council in the Pledge of Allegiance. 2. APPROVAL OF AGENDA MOTION: By Councilmember Cucciardi, seconded by Councilmember Rosapepe, to add 2 items to tonight's agenda. The first being an executive session just before Business Item A related to legal risk regarding one of our business items, and the second addition is to add Business Item I related to a borrowing ordinance. The motion carried. 3. CITIZENS COMMENTS Robert McGee spoke to employee vaccinations. He voiced his concerns and asked Council to respect people's medical privacy and choices. Vaccines don't stop spread or stop you from getting it. Could Page 91 of 298 Back to Agenda Minutes of September 28, 2021 Page 2 of 7 hinder getting good applicants or the amount of qualified people applying for positions. It could also have a discriminatory aspect as more qualified people could get overlooked. Shaun Williams also voiced his concern with vaccine mandates and said requiring a medical procedure that not everyone can get is a violation of RCW 49.60.030 and the 1911 title of the Civil Rights Act. He spoke to lawsuits in other states and pending lawsuits in Washington. 4. CONSENT AGENDA A. Approval of Voucher Nos. 82743 through 82839 including bank drafts in the amount of $1,143,456.70 and EFT's in the amount of $145,001.98 totaling $1,288,458.68. B. Approval of Payroll Check Nos. 82737 through 82742 including bank drafts and EFT's in the amount of $254,586.04 and Direct Deposits in the amount of $189,902.78 totaling $444,489.82. C. Approval of an Interlocal Agreement with Kitsap County Public Works Regarding Traffic Signal Repair and Maintenance (Contract No. 092-21) D. Amending Ordinance 002-21 with the Washington State Department of Transportation for the Citywide Street Lighting Study (Ordinance No. 002-21-A) E. Approval of the September 14, 2021, City Council Meeting Minutes MOTION: By Councilmember Diener, seconded by Councilmember Lucarelli, to approve the consent agenda. The motion carried. 5. PRESENTATION There were no presentations. 6. PUBLIC HEARING There were no public hearings. EXECTIVE SESSION At 6:40 p.m., Mayor Putaansuu recessed the meeting for a 10-minute executive session pursuant to RCW 42.30.110(1)(i) to discuss legal risks associated with a potential action by the Council. City Attorney Archer and HR Manager Lund were invited to attend, and City Attorney Archer noted action will follow. At 6:50 p.m., Mayor Putaansuu extended the executive session an additional 10-minutes. At 7:05 p.m., Mayor Putaansuu extended the executive session an additional 5-minutes. At 7:10 p.m., Mayor Putaansuu reconvened the meeting back into session. Page 92 of 298 Back to Agenda Minutes of September 28, 2021 PaRe3of7 MOTION: By Councilmember Clauson, seconded by Councilmember Cucciardi, to approve the agenda as amended. The motion carried. 7. BUSINESS ITEMS A. Adoption of an Ordinance Amending Port Orchard Municipal Code Title 20 Legislative Shelter and Housing Requirements MOTION: By Councilmember Diener, seconded by Councilmember Rosapepe, to adopt an ordinance amending POMC 20.12 and 20.39.040 to define indoor emergency shelter, indoor emergency housing, permanent supportive housing, and transitional housing uses, and to allow these uses as conditional uses in certain zones as presented in the ordinance. The motion carried. (Ordinance No. 043-21) B. Adoption of an Ordinance Amending Port Orchard Municipal Code Title 20 Congregate Living Use MOTION: By Councilmember Chang, seconded by Councilmember Diener, to adopt an ordinance amending POMC 20.12 and 20.39.040 to define the congregate living use and allow it as a conditional use in the R2 zone. The motion carried. (Ordinance No. 044-21) C. Adoption of an Ordinance Reclassifying the Property Located SW of the Intersection of Sedgwick/Glenwood Road SW and Glenwood Rd SW from Commercial Mixed Use to Industrial Flex MOTION: By Councilmember Diener, seconded by Councilmember Rosapepe, to adopt an ordinance granting approval of the site -specific rezone from "Commercial Mixed Use" to "Industrial Flex" for the property located at the southwest of the intersection of Sedgwick/Glenwood Road SW identified as Assessor Parcel Number 102301-4-023-2001. The motion carried. (Ordinance No. 045-21) D. Adoption of an Ordinance Repealing Port Orchard Municipal Code Chapter 6.20 Regulating Single -Use Plastic Bags Due to Washington State Preemption Page 93 of 298 Back to Agenda Minutes of September 28, 2021 Page 4 of 7 MOTION: By Councilmember Clauson, seconded by Councilmember Lucarelli, to adopt an ordinance repealing Port Orchard Municipal Code Chapter 6.20 prohibiting single -use plastic bags due to state preemption. The motion carried. (Ordinance No. 046-21) E. Adoption of a Resolution Fixing the Date of a Public Hearing on a Petition to Vacate City Right - of -Way, the Southern Portion of Unopened Harrison Avenue MOTION: By Councilmember Diener, seconded by Councilmember Lucarelli, to adopt a Resolution setting a Public Hearing for October 26, 2021, at 6:30 PM, on a petition from Noel Larsen and Dena Larsen to vacate a portion of unopened right-of-way, Harrison Avenue. The motion carried. (Resolution No. 067-21) F. Adoption of a Resolution Fixing the Date of a Public Hearing on a Petition to Vacate City Right - of -Way, the Northern Portion of Unopened Harrison Avenue MOTION: By Councilmember Rosapepe, seconded by Councilmember Diener, to adopt a Resolution setting a Public Hearing for October 26, 2021, at 6:30 PM, on a petition from Dana Harmon and John Phillips to vacate a portion of unopened right-of-way, Harrison Avenue. The motion carried. (Resolution No. 068-21) G. Approval of Amendment No. 2 to Contract No. 075-20 with Rice Fergus Miller, Inc. for the 2020- 2021 City Hall Improvement Project -Additional Design Scope MOTION: By Councilmember Lucarelli, seconded by Councilmember Clauson, to authorize the Mayor to execute Amendment No. 2 to Contract No. C075-20 with Rice Fergus Miller, Inc. for the 2020-2021 City Hall Improvement Project — Additional Design Scope in an amount of $39,090. The motion carried. H. Approval of Personnel Policy Update for COVID Vaccination as a Condition of Employment MOTION: By Councilmember Diener, seconded by Councilmember Clauson, to approve revised Personnel Policy 2.4 "Eligibility for Employment", as presented to require new employees, effective October 1, 2021, to have received at least one dose of the COVID-19 vaccination prior to employment and as a condition of employment receive the second dose within 30 days, unless they have an approved medical or religious exemption. Page 94 of 298 Back to Agenda Minutes of September 28, 2021 Paee 5 of 7 In response to Councilmember Ashby, HR Manager Lund said we do not require new employees to have any other vaccinations. City Attorney Archer explained federal directives that may come within the next few months regarding vaccinations and testing. Councilmember Diener spoke in favor of this update. Councilmember Cucciardi and Chang voiced concerns with this update. The motion failed. Councilmembers Chang, Ashby, Cucciardi, and Rosapepe voted no. I. Adoption of an Ordinance Authorizing the Mayor to Enter a Letter of Credit with Kitsap Bank MOTION: By Councilmember Cucciardi, seconded by Councilmember Clauson, to approve an ordinance authorizing the Mayor to enter into a Letter of Credit in the amount of $18,000 related to the Community Events Center project. The motion carried. (Ordinance No. 047-21) 8. DISCUSSION ITEMS (No Action to be Taken) There were no discussion items. 9. REPORTS OF COUNCIL COMMITTEES Councilmember Rosapepe reported on the September 22" d Land Use Committee meeting. Councilmember Clauson reported on the September 21St Finance Committee meeting. Councilmember Ashby reported on the September 28th Transportation Committee meeting. She also reported on the Puget Sound Regional Council Executive Committee meeting, the Kitsap Regional Coordinating Council, and the Regional Transportation Planning Organization. Councilmember Lucarelli reported on the September 22nd Sewer Advisory Committee meeting and the Kitsap Economic Development Alliance retreat. 10. REPORT OF MAYOR The Mayor reported on the following: • Association of Washington Cities Mayor's Exchange; • Worker's Comp Retro Board; and Page 95 of 298 Back to Agenda Minutes of September 28, 2021 Page 6 of 7 • Kitsap Public Health Board meeting and COVID updates. 11. REPORT OF DEPARTMENT HEADS Finance Director Crocker reported a contract for IT Services will be brought to the next Council meeting. City Clerk Rinearson reported the City is now accepting lodging tax applications for 2022 tourism marketing and marketing of operations of events. Police Chief Brown voiced his appreciation to his professional administrative staff and thanked Council for taking the next steps to redesign the police department. 12. CITIZEN COMMENTS Robert McGee said something needs to be done about executive sessions scheduled during a meeting as they are disrespectful to the community. It is not transparent. Secondly, he spoke to receiving information regarding the cost and increase in connections fees. Shaun Williams said guidance from the federal government regarding vaccines is not likely to come. He also spoke to mandates, court cases, and legal risks. Heidi Fenton is glad Mayor Putaansuu thinks it is harmful for the small businesses to go under a vaccine mandate. Also, she would appreciate everyone giving a report as some people do not get the information. Lastly, she believes from the beginning of the meeting and at the end of the meeting, constituents should be able to talk about anything they want. Randy Jones asked about the proposed government campus, and if the City is willing to stand up for property owners who do not wish to sell and/or eminent domain? GOOD OF THE ORDER Councilmember Clauson noted he, and Mayor Putaansuu, will be meeting with the Federal Transit Administration's administrator and staff on Thursday. Councilmember Rosapepe reminded everyone to get their flu shot. Councilmember Lucarelli clarified that she gave her report at the last meeting which was recorded. 13. EXECUTIVE SESSION Executive session was held earlier in the meeting. Page 96 of 298 Back to Agenda Minutes of September 28, 2021 PaRe7of7 14. ADJOURNMENT The meeting adjourned at 8:38 p.m. No other action was taken. Audio/Visual was successful. Brandy Rinearson, MMC, City Clerk Robert Putaansuu, Mayor Page 97 of 298 Agenda Item No.: Subject: City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7A Adoption of an Ordinance Approving a Contract with the Washington State Meeting Date Prepared by Public Works Board for the 390 Zone Low Atty Routing No: Pressure Booster Station Project and Atty Review Date Ratifying the Mayor's Signature Back to Agenda October 12, 2021 Mark Dorsey, P.E. Public Works Director 366922-0013 — Water October 7, 2021 Summary: On September 9, 2021, the City of Port Orchard was officially notified that it was eligible to receive a $650K loan from the Washington State Public Works Board (PWB) Traditional Fund Loan Program for the 390 Zone Low Pressure Booster Station Project, a necessary project for the City's water system. On October 7, 2021, the City of Port Orchard Public Works Department received fully executed PWB Contract No. PC22-96103-045 from the Washington State Public Works Board with a summary of the terms and conditions as follows: Loan Amount: $650,000 Term 20 Years Interest Rate 0.94% Loan Reimbursement Start Date 8/6/2021 Time of Performance 60-months Unused Loan Amount Penalty None Relationship to Comprehensive Plan: Chapter 7 — Utilities. Recommendation: Staff recommends that the City Council adopt Ordinance No. 039-21, thereby approving and ratifying the Mayor's execution of Contract No. C088-21 (PWB Contract No. PC22-96103- 045) with the Washington State Public Works Board for the 390 Zone Low Pressure Booster Station Project in the loan amount of $650,000. Motion for Consideration: I move to adopt Ordinance No. 039-21, thereby approving and ratifying the Mayor's execution of Contract No. C088-21 with the Washington State Public Works Board for the 390 Zone Low Pressure Booster Station Project in the loan amount of $650,000. Fiscal Impact: Debt service for PWB Emergency Loan. Alternative: Refuse Loan Attachment: Ordinance, PWB Contract No. PC22-96103-045, and PWB Award Letter (dated 9/9/2021). Page 98 of 298 Back to Agenda ORDINANCE NO. 039-21 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ACCEPTING THE TERMS AND CONDITIONS FOR CONTRACT NO. C088-21 WITH THE WASHINGTON STATE PUBLIC WORKS BOARD TRADITIONAL FUND LOAN PROGRAM FOR THE 390 ZONE LOW PRESSURE BOOSTER STATION PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, on September 9, 2021, the City of Port Orchard Public Works Department was officially notified by Washington State Department of Commerce that the City was successful in obtaining a $650K Loan award through the Washington State Public Works Board Traditional Fund Loan Program for the 390 Zone Low Pressure Booster Station Project; and WHEREAS, on October 7, 2021, the City received fully executed PWB Contract No. PC22- 96103-045 from the Washington State Public Works Board for the loan, attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the Port Orchard City Council has determined it to be in the best interest of the City to enter into Contract No. C088-21 with the Public Works Board and accept the loan on the terms and conditions stated therein for the 390 Low Pressure Booster Station Project; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby approves of and ratifies the Mayor's execution of Contract No. C088-21 with the Washington State Public Works Board for the 390 Low Pressure Booster Station Project, inclusive of the terms and conditions of Public Works Board Traditional Fund Loan Contract No. PC22-96103-045. 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. Page 99 of 298 Back to Agenda Ordinance No. 039-21 Page 2 of 2 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 12th day of October 2021. ATTEST: Robert Putaansuu, Mayor SPONSOR: Brandy Rinearson, MMC, City Clerk Cindy Lucarelli, Councilmember APPROVED AS TO FORM: Charlotte Archer, City Attorney PUBLISHED: EFFECTIVE DATE: Page 100 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda CONTRACT FACE SHEET Contract Number: PC22-96103-045 PUBLIC WORKS BOARD CONSTRUCTION LOAN CONTRACT 1. Contractor 2. Contractor Doing Business As (optional) City of Port Orchard N/A 214 Prospect St Port Orchard, WA 98366 3. Contractor Representative 4. Public Works Board Representative N/A N/A 5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End Date Date $650,000 Federal: ❑ State: 0 Other: ❑ Contract Execution June 1, 2041 N/A: ❑ Date 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10. Tax ID # 11. SWV # 12. UBI # 13. DUNS # 0025665-00 182-000-005 14. Contract Purpose Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction, replacement, rehabilitation, or improvement of streets, roads, bridges, drinking water systems, stormwater systems, sanitary sewage systems, or solid waste facilities, including recycling facilities. The BOARD, defined as the Washington State Public Works Board and Contractor acknowledge and accept the terms of this Contract and attachments and have executed this Contract on the date below to start as of the date and year last written below. The rights and obligations of both parties to this Contract are governed by this Contract and the following other documents that are incorporated by reference: Contract Terms and Conditions including Declarations Page; and Attachment I: Attorney's Certification. FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD uSigned by: DocuSigned by: U�% �1A1 AlU/l iltilA Lr 7 ! . .. a JV84A6BDAhow, Public Works Board Chair Signatu e7 `E Robert Putaansun P)gfJ/2021 1 1:41 PM PDT Print Name Mayor APPROVED AS TO FORM ONLY Title September 22, 2021 Dawn C. Cortez bWJ/2021 1 1:29 PM PDT Assistant Attorney General Page 101 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda Page 10Y of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda CLIENT INFORMATION Legal Name: Loan Number: PROJECT INFORMATION Project Title: Project City: Project State: Project Zip Code: LOAN INFORMATION Loan Amount: Total Estimated Cost: Total Estimated Project Funding: Loan Forgiveness % (if applicable): Loan Term: Interest Rate: Payment Month: Loan Reimbursement Start Date: Time of Performance DECLARATIONS City of Port Orchard PC22-96103-045 390 Zone Low Pressure Booster Station Port Orchard Washington 98366 $650,000.00 $650,000.00 $650,000.00 0% 20 0.94% June 1st August 6, 2021 60 months from Execution Date of this Contract to Project Completion. SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT N/A LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT Revenue Obligation: This loan is a revenue obligation of the CONTRACTOR payable solely from the net revenue of the Domestic Water system. Payments shall be made from the net revenue of the utility after the payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility having a lien on that net revenue. As used here, "net revenue" means gross revenue minus expenses of maintenance and operations. The BOARD grants the CONTRACTOR the right to issue future bonds and notes that constitute a lien and charge on net revenue superior to the lien and charge of this loan agreement. SCOPE OF WORK The 390 Zone Low Pressure Booster Station domestic water project installs a pressure booster station. The project costs may include but are not limited to: engineering, cultural and historical resources, environmental documentation, review, permits, public involvement, bid documents and construction. The project needs to meet all applicable Local, State, and/or Federal standards. Page 1IN of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda Page 104 of 298 DocuSign Envelope ID: 94108CA1-A9F7-4A1B-AOBO-E781324B3B49 Back to Agenda TABLE OF CONTENTS CONTRACT TERMS AND CONDITIONS................................................................................. 1 Part 1. SPECIAL TERMS AND CONDITIONS........................................................................ 1 1.1 Definitions.............................................................................................................................1 1.2 Authority................................................................................................................................1 1.3 Purpose.................................................................................................................................1 1.4 Order of Precedence............................................................................................................1 1.5 5- year deferral for start-up systems..................................................................................2 1.6 Competitive Bidding Requirements...................................................................................2 1.7 Default in Repayment...........................................................................................................2 1.8 Investment Grade Audit.......................................................................................................2 1.9 Sub -Contractor Data Collection..........................................................................................2 1.10 Eligible Project Costs...........................................................................................................2 1.11 Historical and Cultural Resources......................................................................................3 1.12 Performance Incentives.......................................................................................................3 1.13 Project Completion Amendment and Certified Project Completion Report ...................4 1.14 Project Signs.........................................................................................................................4 1.15 Rate Loan Forgiveness and Term of Loan.........................................................................5 1.16 Recapture..............................................................................................................................5 1.17 Reimbursement Procedures and Payment........................................................................5 1.18 Repayment............................................................................................................................6 1.19 Reports..................................................................................................................................7 1.20 Termination for Cause.........................................................................................................7 1.21 Termination for Convenience..............................................................................................7 1.22 Time of Performance............................................................................................................7 1.23 Contract Suspension...........................................................................................................7 1.24 Special Conditions...............................................................................................................8 1.25 Loan Security........................................................................................................................8 Part 2. GENERAL TERMS AND CONDITIONS...................................................................... 9 2.1 DEFINITIONS..........................................................................................................................9 2.2 Allowable Costs.....................................................................................................................9 2.3 ALL WRITINGS CONTAINED HEREIN.................................................................................9 2.4 AMENDMENTS.......................................................................................................................9 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35................................................................................. 2.6 APPROVAL......................................................................................................................... 2.7 ASSIGNMENT..................................................................................................................... 2.8 ATTORNEYS' FEES........................................................................................................... 2.09 CODE REQUIREMENTS................................................................................................... 2.10 CON FIDENTIALITYISAFEGUARDING OF INFORMATION ............................................ 2.11 CONFORMANCE............................................................................................................... 2.12 CONFLICT OF INTEREST................................................................................................. 2.13 COPYRIGHT PROVISIONS............................................................................................... 2.14 DISALLOWED COSTS...................................................................................................... 2.15 DISPUTES.......................................................................................................................... 2.16 DUPLICATE PAYMENT.................................................................................................... 2.17 GOVERNING LAW AND VENUE...................................................................................... 2.18 INDEMNIFICATION........................................................................................................... 2.19 INDEPENDENT CAPACITY OF THE CONTRACTOR..................................................... 2.20 INDUSTRIAL INSURANCE COVERAGE.......................................................................... 2.21 LAWS................................................................................................................................. ..9 ..9 10 10 10 10 10 11 11 11 12 12 12 12 13 13 13 Page 105 of 298 DocuSign Envelope ID: 94108CA1-A9F7-4A1B-AOBO-E781324B3B49 Back to Agenda 2.22 LICENSING, ACCREDITATION AND REGISTRATION.................................................... 13 2.23 LIMITATION OF AUTHORITY............................................................................................ 13 2.24 Local Public Transportation Coordination..................................................................... 13 2.25 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ............................................... 13 2.26 PAY EQUITY....................................................................................................................... 13 2.27 POLITICAL ACTIVITIES..................................................................................................... 14 2.28 PREVAILING WAGE LAW................................................................................................. 14 2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION .............................. 14 2.30 PUBLICITY..........................................................................................................................14 2.31 RECAPTURE...................................................................................................................... 14 2.32 RECORDS MAINTENANCE............................................................................................... 15 2.33 REGISTRATION WITH DEPARTMENT OF REVENUE .................................................... 15 2.34 RIGHT OF INSPECTION.................................................................................................... 15 2.35 SAVINGS............................................................................................................................ 15 2.36 SEVERABILITY.................................................................................................................. 15 2.37 SUBCONTRACTING.......................................................................................................... 15 2.38 SURVIVAL.......................................................................................................................... 16 2.39 TAXES.................................................................................................................................16 2.40 TERMINATION FOR CAUSE............................................................................................. 16 2.41 TERMINATION FOR CONVENIENCE............................................................................... 16 2.42 TERMINATION PROCEDURES......................................................................................... 16 2.43 TREATMENT OF ASSETS................................................................................................. 17 2.44 WAIVER.............................................................................................................................. 17 Page 106 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda CONTRACT TERMS AND CONDITIONS PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM Part 1. SPECIAL TERMS AND CONDITIONS 1.1 Definitions As used throughout this Construction Loan Contract the following terms shall have the meaning set forth below: A. "Contract" shall mean this Construction Loan Contract. B. "Contractor" shall mean the local government identified on the Contract Face Sheet performing service(s) under this Contract and who is a Party to the Contract, and shall include all employees and agents of the Contractor. C. "The BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and who is a Party to the Contract. D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions as stated on the Declarations Page of this Loan Contract, displayed within the Contract in THIS STYLE for easier identification. 1.2 Authority Acting under the authority of Chapter 43.155 RCW, the BOARD has awarded the Contractor a Public Works Board construction loan for an approved public works project. 1.3 Purpose The BOARD and the Contractor have entered into this Contract to undertake a local public works project that furthers the goals and objectives of the Washington State Public Works Program. The project will be undertaken by the Contractor and will include the activities described in the SCOPE OF WORK shown on the Declarations page. The project must be undertaken in accordance with the loan terms and conditions, and all applicable federal, state and local laws and ordinances, which are incorporated by reference. 1.4 Order of Precedence In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the following order: A. Applicable federal and state of Washington statutes and regulations. B. Special Terms and Conditions including attachments. C. General Terms and Conditions. 1 Page 107 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda 1.5 5- year deferral for start-up systems If the project financed by this Contract is to develop a system to deliver previously unavailable services, and revenue from those services is to repay the loan, the new system is eligible for a deferral of loan payments for sixty (60) months after the Contract execution date. The Contractor may provide a written request to the BOARD requesting a 5-year deferral for an eligible system. The BOARD may approve the deferral request. Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is due June 1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of the 7th year of the loan term. 1.6 Competitive Biddinq Requirements The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding requirements for projects assisted in whole or in part with money from the Public Works Program. 1.7 Default in Repayment Loan repayments shall be made on the loan in accordance with Section 1.18 of this Contract. A payment not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall be assessed a monthly penalty beginning on the first (1st) day past the due date. The penalty will be assessed on the entire payment amount. The penalty will be one percent (1 %) per month or twelve percent (12%) per annum. The same penalty terms shall apply at project completion if the repayment of loan funds in excess of eligible costs are not repaid at the time of the Project Completion Amendment is submitted, as provided for in Section 1.13. The Contractor acknowledges and agrees to the BOARD's right, upon delinquency in the payment of any annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of such delinquency. The Contractor shall be responsible for all legal fees incurred by the BOARD in any action undertaken to enforce its rights under this section. 1.8 Investment Grade Audit For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other public works facility for which an investment grade audit is obtainable, Contractor must undertake an investment grade audit. Costs incurred as part of the investment grade audit are eligible project costs. 1.9 Sub -Contractor Data Collection Contractor will submit reports, in a form and format to be provided by the BOARD and at intervals as agreed by the parties, regarding work under this Contract performed by sub -contractors and the portion of the Contract funds expended for work performed by sub -contractors, including but not necessarily limited to minority -owned, women -owned, and veteran -owned business sub -contractors. "Sub -Contractors" shall mean sub -contractors of any tier. 1.10 Eligible Project Costs The Eligible project costs must consist of expenditures eligible under Washington Administrative Code (WAC) 399-30-030 and be related only to project activities described in the declared SCOPE OF WORK. 2 Page 108 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda Eligible costs for reimbursement shall be construed to mean expenditures incurred and paid, or incurred and payable within thirty (30) days of the reimbursement request. Only costs that have been incurred on or after LOAN REIMBURSEMENT START DATE shown in the Declarations are eligible for reimbursement under this Contract. Eligible costs will be paid according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for projects assisted with Public Works Board loans. These terms supersede the terms in Section 2.2. Allowable Costs. 1.11 Historical and Cultural Resources Prior to commencing construction, Contractor shall complete the requirements of Governor's Executive Order 21-02, or, as an alternative to completion of Governor's Executive Order 21-02, Contractor shall complete Section 106 of the National Historic Preservation Act, as applicable. Contractor agrees that the Contractor is legally and financially responsible for compliance with all laws, regulations, and agreements related to the preservation of historical or cultural resources and agrees to indemnify, defend and hold harmless the BOARD and the State of Washington in relation to any claim related to such historical or cultural resources discovered, disturbed, or damaged as a result of the project funded by this Contract. In addition to the requirements set forth in this Contract, Contractor shall, in accordance with Governor's Executive Order 21-02, coordinate with the Washington State Department of Archaeology and Historic Preservation (DAHP), including any recommended consultation with any affected tribe(s), during project design and prior to construction to determine the existence of any tribal cultural resources affected by the proposed project funded by this Contract. Contractor agrees to avoid, minimize, or mitigate impacts to cultural resource as a continuing pre -requisite to receipt of funds under this Contract. The Contractor agrees that, unless the Contractor is proceeding under an approved historical and cultural monitoring plan or other memorandum of agreement, if historical or cultural resources are discovered during construction, the Contractor shall immediately stop work and notify the local historical preservation officer and the state's historic preservation officer at DAHP. If human remains are uncovered, the Contractor shall report the presence and location of the remains to the coroner and local enforcement immediately, then contact DAHP and the concerned tribe's cultural staff or committee. The Contractor shall require this provision to be contained in all sub -contracts for work or services related to the declared SCOPE OF WORK. In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW 27.44.040 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and, WAC 25-48 regarding Archaeological Excavation and Removal Permits. Completion of the Section 106 of the National Historic Preservation Act shall substitute for completion of Governor's Executive Order 21-02. In the event that the Contractor finds it necessary to amend the SCOPE OF WORK, the Contractor may be required to re -comply with Governor's Executive Order 21-02 or Section 106 of the National Historic Preservation Act. 1.12 Performance Incentives The Contractor shall complete the project no later than sixty (60) months after the date of Contract execution. 3 Page 109 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda Should the Contractor submit the Certified Project Completion Report within forty-eight (48) months of the date of Contract execution, the Contractor may choose one of the two following incentives upon project completion: Option A: The repayment period will be increased by twenty-four (24) months, not to exceed the life of the asset, OR: Option B: The interest rate will be decreased by one -quarter of one percent (0.25%). Should the Contractor submit the Certified Project Completion Report within thirty-six (36) months of the date of Contract execution, the Contractor may choose one of the following two incentives upon project completion: Option C: The repayment period will be increased by sixty (60) months, not to exceed the life of the asset, OR; Option D: The interest rate will be decreased by up to one-half of one percent (0.50%). Once an option is selected, the Contract shall be modified to note the appropriate change and no further adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of the performance incentive chosen, at no point in time shall the minimum loan interest rate be less than 0.25%. The calculation of interest rate and term adjustments will apply to the remaining payments beginning from the date the Project Completion report is certified. 1.13 Project Completion Amendment and Certified Project Completion Report The Contractor shall complete a Certified Project Completion Report when all activities identified in the SCOPE OF WORK are complete. The BOARD will supply the Contractor with the Certified Project Completion Report form, which shall include: A. A certified statement that the project, as described in the declared SCOPE OF WORK, is complete and, if applicable, meets required standards. B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the project as described in the SCOPE OF WORK. C. Certification that all costs associated with the project have been incurred and have been accounted for. Costs are incurred when goods and services are received and/or Contract work is performed. D. A final voucher for the remaining eligible funds. E. Pictures of Completed Project. The Contractor will submit the Certified Project Completion Report together with the last Invoice Voucher for a sum not to exceed the balance of the loan amount. The final Invoice Voucher payment shall not occur prior to the completion of all project activities identified in the SCOPE OF WORK and the BOARD's receipt and acceptance of the Certified Project Completion Report. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, term, and interest rate. 1.14 Project Signs If the Contractor displays, during the period covered by this Contract, signs or markers identifying those agencies participating financially in the approved project, the sign or marker must identify the Washington State Public Works Board as a participant in the project. 4 Page 110 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda 1.15 Rate Loan Forgiveness and Term of Loan The BOARD shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the Contract Face Sheet and declared on the Contract Declarations Page. The interest rate shall be the declared INTEREST RATE per annum on the outstanding principal balance. The amount of loan forgiveness (if applicable) shall be as stated on the attached Declarations Page, and identified therein as LOAN FORGIVENESS %. The length of the loan shall not exceed the declared LOAN TERM in years, with the final payment due by the CONTRACT END DATE as shown on the Contract Face Sheet. The loan forgiveness shall be applied at project completion and shall apply to the lesser of the loan amount or the actual eligible costs and that declared percent on any accrued interest. The percent of loan forgiveness and interest rate shall not be changed, regardless of the actual cost of the project and the Affordability Index at project completion. 1.16 Recapture The right of recapture under Section 2.31. Recapture shall exist for a period not to exceed six (6) years following Contract termination. In the event that the Board is required to institute legal proceedings to enforce the recapture provision, the BOARD shall be entitled to its costs, including attorney's fees. 1.17 Reimbursement Procedures and Payment If funding or appropriation is not available at the time the invoice is submitted, or when this Contract is executed, the issuance of warrants will be delayed or suspended until such time as funds or appropriation become available. Therefore, subject to the availability of funds, warrants shall be issued to the Contractor for reimbursement of allowable expenses incurred by the Contractor while undertaking and administering approved project activities in accordance with the declared SCOPE OF WORK. The BOARD shall reimburse the Contractor for eligible project expenditures up to the maximum loan amount under this Contract, as identified in Section 1.10. When requesting reimbursement for costs incurred, the Contractor shall submit all Invoice Vouchers and any required documentation electronically through the Department of Commerce's (COMMERCE) Contracts Management System (CMS), which is available through the Secure Access Washington (SAW) portal; referencing the SCOPE OF WORT( project activity performed, and any appropriate documentation such as bills, invoices, and receipts. If the Contractor has constraints preventing access to COMMERCE's online A-19 portal, a hard copy A-19 form may be provided by the BOARD Project Manager upon request. Requests for reimbursements for costs related to construction activities will not be accepted until the Contractor provides: • Proof of compliance with Governor's Executive Order 21-02 or Section 106 of the National Historic Preservation Act, as described in Section 1.11, and • Signed Public Works Board Notice of Contract Award and Notice to Proceed, which follows the formal award of a construction contract. The BOARD will pay the Contractor upon acceptance of the work performed and receipt of properly completed invoices. Invoices shall be submitted to the BOARD not more often than monthly. Payment shall be considered timely if made by the BOARD within thirty (30) calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Contractor. 5 Page 111 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda The BOARD may, at its sole discretion, terminate the Contract or withhold payments claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this Contract. No payments in advance or in anticipation of services or supplies to be provided under this Contract shall be made by the BOARD. BOARD shall not release the final five (5) percent of the total grant amount until acceptance by BOARD of project completion report. Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by another source for an eligible project cost, then the Contractor shall not be reimbursed by the BOARD for that cost. Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its subcontractors. In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At the time of project completion, the Contractor shall submit to the BOARD a Project Completion Amendment certifying the total actual project costs and local share. The final Public Works loan disbursement shall bring the total loan to the lesser of 100% of the eligible project costs or the total declared LOAN AMOUNT. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, and interest rate. In the event that the final costs identified in the Project Completion Amendment indicate that the Contractor has received Public Works Board monies in excess of 100.00% of eligible costs, all funds in excess of 100.00% shall be repaid to the Board by payment to the Department of Commerce, or its successor, together with the submission of the Project Completion Amendment. 1.18 Repayment Loan repayment installments are due on the day and month identified under the term: PAYMENT MONTH on the Declarations Page. Payments are due each year during the term of the loan beginning one year from the date of Contract execution. Interest only will be charged for this payment if a warrant is issued prior to this date. All subsequent payments shall consist of principal and accrued interest due on the specified PAYMENT MONTH date of each year during the remaining term of the loan. Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum based on a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest will begin to accrue from the date each warrant is issued to the Contractor. The final payment shall be on or before the CONTRACT END DATE shown on the Declarations page, of an amount sufficient to bring the loan balance to zero. In the event that the BOARD approves the Contractor's request for a deferral as outlined in Section 1.5, then the first loan repayment is due sixty (60) months after Contract execution. Interest accrues for the sixty (60) months after Contract execution. The accrued interest only will be charged for this payment if a warrant is issued prior to this date. Interest and principal payments are due on the declared PAYMENT MONTH date of each year during the remaining term of the loan. The Contractor has the right to repay the unpaid balance of the loan in full at any time or make accelerated payments without penalty. The Contractor will repay the loan in accordance with the preceding conditions through the use of a check, money order, or equivalent means made payable to the Washington State Department of Commerce, or its successor. 6 Page 112 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda 1.19 Reports The Contractor shall furnish the BOARD with: A. Project Status Reports with each Invoice Voucher; B. Project Quarterly Reports (if no funds have been reimbursed in the quarter) and/or Quarterly Expenditures Report; C. Quarterly Projection Invoice Reports; D. Certified Project Completion Report at project completion (as described in Section 1.13); E. Pictures of various stages of the project, and F.Other reports as the BOARD may require. 1.20 Termination for Cause If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds only for those activities identified in the SCOPE OF WORK, the BOARD may terminate the Contract in whole or in part at any time. The BOARD shall notify the Contractor in writing of its determination to terminate, the reason for such termination, and the effective date of the termination. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.40 Termination for Cause. 1.21 Termination for Convenience The BOARD may terminate this Contract in the event that state funds are no longer available to the BOARD, or are not appropriated for the purpose of meeting the BOARD's obligations under this Contract. Termination will be effective when the BOARD sends written notice of termination to the Contractor. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.41 Termination for Convenience. 1.22 Time of Performance No later than sixty (60) months after the date of Contract execution the Contractor must reach project completion. Failure to meet Time of Performance shall constitute default of this Contract. In the event of extenuating circumstances, the Contractor may request, in writing, that the BOARD extend the deadline for project completion. The BOARD may extend the deadline. The term of this Contract shall be for the entire term of the loan, regardless of actual project completion, unless terminated sooner as provided herein. 1.23 Contract Suspension In the event that the Washington State Legislature fails to pass and the Governor does not authorize a Capital Budget by June 30 of each biennium, the Washington State Constitution Article 8 and RCW 43.88.130 and RCW 43.88.290 prohibit expenditures or commitments of state funds in the absence of appropriation. In such event, all work under this Contract will be suspended effective July 1. The Contractor shall immediately suspend work under this Contract and take all reasonable steps necessary to minimize the cost of performance directly attributable to such suspension until the suspension is cancelled. 7 Page 113 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda THE BOARD shall notify the Contractor immediately upon lifting of the Contract suspension. 1.24 Special Conditions If SPECIAL CONDITIONS are listed on the Contract Declarations Page then these conditions are herein incorporated as part of the terms and requirements of this Contract. 1.25 Loan Security Loan Security payments shall be made as stated on the attached Declarations Page, and identified therein as LOAN SECURITY. 8 Page 114 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda Part 2. GENERAL TERMS AND CONDITIONS 2.1 DEFINITIONS DocuSigned by: As used throughout this Contract, th fterms shall have the meaning set forth below: A. "Authorized Representative' s���P4i 99H the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. B. "COMMERCE" shall mean the Department of Commerce. C. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this Contract, and shall include all employees and agents of the Contractor. D. "BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and which is a Party to the Contract E. "Personal Information" shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. F. "State" shall mean the state of Washington. G. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or part of those services under this Contract under a separate contract with the Contractor. The terms "subcontractor" and "subcontractors" mean subcontractor(s) in any tier. 2.2 Allowable Costs Costs allowable under this Contract are actual expenditures according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. 2.3 ALL WRITINGS CONTAINED HEREIN This Contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. 2.4 AMENDMENTS This Contract may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35 The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. 2.6 APPROVAL This contract shall be subject to the written approval of the Board's Authorized Representative and shall not be binding until so approved. The contract may be altered, amended, or waived only by a written amendment executed by both parties. 9 Page 115 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda 2.7 ASSIGNMENT Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the Contractor without prior written consent of the Board. 2.8 ATTORNEYS' FEES Unless expressly permitted under another provision of the Contract, in the event of litigation or other action brought to enforce Contract terms, each party agrees to bear its own attorney's fees and costs. 2.09 CODE REQUIREMENTS All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and federal building, mechanical, plumbing, fire, energy and barrier -free codes. Compliance with the Americans with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building Department. 2.10 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION A. "Confidential Information" as used in this section includes: 1. All material provided to the Contractor by the Board that is designated as "confidential" by the Board; 2. All material produced by the Contractor that is designated as "confidential" by the Board; and 3. All personal information in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of government services, addresses, telephone numbers, social security number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or disclosure of Confidential Information. The Contractor shall use Confidential Information solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information to any third party except with the prior written consent of the Board or as may be required by law. The Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto. Upon request, the Contractor shall provide the Board with its policies and procedures on confidentiality. The Board may require changes to such policies and procedures as they apply to this Contract whenever the Board reasonably determines that changes are necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time period specified by the Board. Upon request, the Contractor shall immediately return to the Board any Confidential Information that the Board reasonably determines has not been adequately protected by the Contractor against unauthorized disclosure. C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of any unauthorized use or disclosure of any confidential information, and shall take necessary steps to mitigate the harmful effects of such use or disclosure. 2.11 CONFORMANCE If any provision of this contract violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. Page 119 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda 2.12 CONFLICT OF INTEREST Notwithstanding any determination by the Executive Ethics Board or other tribunal, the BOARD may, in its sole discretion, by written notice to the CONTRACTOR terminate this contract if it is found after due notice and examination by the BOARD that there is a violation of the Ethics in Public Service Act, Chapters 42.52 RCW and 42.23 RCW; or any similar statute involving the CONTRACTOR in the procurement of, or performance under this contract. Specific restrictions apply to contracting with current or former state employees pursuant to chapter 42.52 of the Revised Code of Washington. The CONTRACTOR and their subcontractor(s) must identify any person employed in any capacity by the state of Washington that worked on the PUBLIC WORKS BOARD including but not limited to formulating or drafting the legislation, participating in loan procurement planning and execution, awarding loans, and monitoring loans, during the 24 month period preceding the start date of this Loan. Identify the individual by name, the agency previously or currently employed by, job title or position held, and separation date. If it is determined by BOARD that a conflict of interest exists, the CONTRACTOR may be disqualified from further consideration for the award of a Loan. In the event this contract is terminated as provided above, BOARD shall be entitled to pursue the same remedies against the CONTRACTOR as it could pursue in the event of a breach of the contract by the CONTRACTOR. The rights and remedies of BOARD provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which BOARD makes any determination under this clause shall be an issue and may be reviewed as provided in the "Disputes" clause of this contract. 2.13 COPYRIGHT PROVISIONS Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the author of such Materials. In the event the Materials are not considered "works for hire" under the U.S. Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials, including all intellectual property rights, moral rights, and rights of publicity to the Board effective from the moment of creation of such Materials. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the ability to transfer these rights. For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty -free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that the Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the Board. The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materials furnished under this Contract, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Contract. The Contractor shall provide the Board with prompt written notice of each notice or claim of infringement received by the Contractor with respect to any Materials delivered under this Contract. The Board shall have the right to modify or remove any restrictive markings placed upon the Materials by the Contractor. `Ai E ! 016%14 wel4v1 =1 OX91013 f - The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors. 11 Page 117 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda 2.15 DISPUTES Except as otherwise provided in this Contract, when a dispute arises between the parties and it cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who may designate a neutral person to decide the dispute. The request for a dispute hearing must: • be in writing; • state the disputed issues; • state the relative positions of the parties; • state the Contractor's name, address, and Contract number; and • be mailed to the Chair and the other party's (respondent's) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's designee and the requestor within five (5) working days. The Chair or designee shall review the written statements and reply in writing to both parties within ten (10) working days. The Chair or designee may extend this period if necessary by notifying the parties. The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this Contract shall be construed to limit the parties' choice of a mutually acceptable alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above. 2.16 DUPLICATE PAYMENT The Contractor certifies that work to be performed under this contract does not duplicate any work to be charged against any other contract, subcontract, or other source. 2.17 GOVERNING LAW AND VENUE This Contract shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. 2.18 INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of Washington, BOARD, agencies of the state and all officials, agents and employees of the state, for, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. "Claim" as used in this contract, means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorney's fees, attributable for bodily injury, sickness, disease, or death, or injury to or the destruction of tangible property including loss of use resulting therefrom. The Contractor's obligation to indemnify, defend, and hold harmless shall not be eliminated by any actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers. The Contractor expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to the Contractor's or any subcontractor's performance or failure to perform the contract. Contractor's obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agents, agencies, employees and officials. The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the state and its agencies, officers, agents or employees. 12 Page 118 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda 2.19 INDEPENDENT CAPACITY OF THE CONTRACTOR The parties intend that an independent contractor relationship will be created by this Contract. The Contractor and its employees or agents performing under this Contract are not employees or agents of the state of Washington or the Board. The Contractor will not hold itself out as or claim to be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and control of the work will be solely with the Contractor. 2.20 INDUSTRIAL INSURANCE COVERAGE The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the Board may collect from the Contractor the full amount payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to collect from the Contractor. 2.21 LAWS The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of local and state and federal governments, as now or hereafter amended. 2.22 LICENSING, ACCREDITATION AND REGISTRATION The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements or standards necessary for the performance of this Contract. 2.23 LIMITATION OF AUTHORITY Only the Authorized Representative or Authorized Representative's designee by writing (designation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Contract. 2.24 Local Public Transportation Coordination Where applicable, Contractor shall participate in local public transportation forums and implement strategies designed to ensure access to services. 2.25 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS During the performance of this Contract, the Contractor shall comply with all federal, state, and local nondiscrimination laws, regulations and policies. In the event of the Contractor's non-compliance or refusal to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or terminated in whole or in part, and the Contractor may be declared ineligible for further contracts with the Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.26 PAY EQUITY The Contractor agrees to ensure that "similarly employed" individuals in its workforce are compensated as equals, consistent with the following: 13 Page 119 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda A. Employees are "similarly employed" if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed; B. Contractor may allow differentials in compensation for its workers if the differentials are based in good faith and on any of the following: 1. A seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. 2. A bona fide job -related factor or factors may include, but not be limited to, education, training, or experience that is: Consistent with business necessity; not based on or derived from a gender -based differential; and accounts for the entire differential. 3. A bona fide regional difference in compensation level must be: Consistent with business necessity; not based on or derived from a gender -based differential; and account for the entire differential. This Contract may be terminated by the BOARD, if the BOARD or the Department of Enterprise Services determines that the Contractor is not in compliance with this provision. 2.27 POLITICAL ACTIVITIES Political activity of Contractor employees and officers are limited by the State Campaign Finances and Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508. No funds may be used for working for or against ballot measures or for or against the candidacy of any person for public office. 2.28 PREVAILING WAGE LAW The Contractor certifies that all contractors and subcontractors performing work on the Project shall comply with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by this contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39.12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's review upon request. 2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION The funds provided under this Contract shall not be used in payment of any bonus or commission for the purpose of obtaining approval of the application for such funds or any other approval or concurrence under this Contract provided, however, that reasonable fees or bona fide technical consultant, managerial, or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project costs. 2.30 PUBLICITY The Contractor agrees not to publish or use any advertising or publicity materials in which the state of Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written consent of the Board. 2.31 RECAPTURE In the event that the Contractor fails to perform this contract in accordance with state laws, federal laws, and/or the provisions of this contract, the Board reserves the right to recapture funds in an amount to compensate the Board for the noncompliance in addition to any other remedies available at law or in equity. 14 Page 120 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda Repayment by the Contractor of funds under this recapture provision shall occur within the time period specified by the Board. In the alternative, the Board may recapture such funds from payments due under this contract. 2.32 RECORDS MAINTENANCE The Contractor shall maintain all books, records, documents, data and other evidence relating to this Contract and performance of the services described herein, including but not limited to accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Contract. Contractor shall retain such records for a period of six years following the date of final payment. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been finally resolved. 2.33 REGISTRATION WITH DEPARTMENT OF REVENUE If required by law, the Contractor shall complete registration with the Washington State Department of Revenue. 2.34 RIGHT OF INSPECTION At no additional cost all records relating to the Contractor's performance under this Contract shall be subject at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and federal and state officials so authorized by law, in order to monitor and evaluate performance, compliance, and quality assurance under this Contract. The Contractor shall provide access to its facilities for this purpose. 2.35 SAVINGS In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Contract and prior to normal completion, the Board may terminate the Contract under the "Termination for Convenience" clause, without the ten business day notice requirement. In lieu of termination, the Contract may be amended to reflect the new funding limitations and conditions. 2.36 SEVERABILITY If any provision of this Contract or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect without the invalid provision, if such remainder conforms to the requirements of law and the fundamental purpose of this Contract and to this end the provisions of this Contract are declared to be severable. 2.37 SUBCONTRACTING The Contractor may only subcontract work contemplated under this Contract if it obtains the prior written approval of the Board. If the Board approves subcontracting, the Contractor shall maintain written procedures related to subcontracting, as well as copies of all subcontracts and records related to subcontracts. For cause, the Board in writing may: (a) require the Contractor to amend its subcontracting procedures as they relate to this Contract; (b) prohibit the Contractor from subcontracting with a particular person or entity; or (c) require the Contractor to rescind or amend a subcontract. Every subcontract shall bind the Subcontractor to follow all applicable terms of this Contract. The Contractor is responsible to the Board if the Subcontractor fails to comply with any applicable term or condition of this Contract. The Contractor shall appropriately monitor the activities of the Subcontractor to assure fiscal Page 12 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda conditions of this Contract. In no event shall the existence of a subcontract operate to release or reduce the liability of the Contractor to the Board for any breach in the performance of the Contractor's duties. Every subcontract shall include a term that the Board and the State of Washington are not liable for claims or damages arising from a Subcontractor's performance of the subcontract. 2.38 SURVIVAL The terms, conditions, and warranties contained in this Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive. 2.39 TAXES All payments accrued on account of payroll taxes, unemployment contributions, the Contractor's income or gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole responsibility of the Contractor. 2.40 TERMINATION FOR CAUSE In the event BOARD determines the Contractor has failed to comply with the conditions of this contract in a timely manner, BOARD has the right to suspend or terminate this contract. Before suspending or terminating the contract, BOARD shall notify the Contractor in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days, the contract may be terminated or suspended. In the event of termination or suspension, the Contractor shall be liable for damages as authorized by law. BOARD reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Contractor from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the Contractor or a decision by BOARD to terminate the contract. A termination shall be deemed a "Termination for Convenience" if it is determined that the Contractor: (1) was not in default; or (2) failure to perform was outside of his or her control, fault or negligence. The rights and remedies of BOARD provided in this contract are not exclusive and are, in addition to any other rights and remedies, provided by law. 2.41 TERMINATION FOR CONVENIENCE Except as otherwise provided in this Contract the Board may, by ten (10) business days written notice, beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is so terminated, the Board shall be liable only for payment required under the terms of this Contract for services rendered or goods delivered prior to the effective date of termination. 2.42 TERMINATION PROCEDURES Upon termination of this contract, BOARD, in addition to any other rights provided in this contract. The rights and remedies of BOARD provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. After receipt of a notice of termination, and except as otherwise directed by the Authorized Representative, the Contractor shall: A. Stop work under the Contract on the date, and to the extent specified, in the notice; B. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the contract that is not terminated; Page 112 9 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda C. Assign to the BOARD, in the manner, at the times, and to the extent directed by the Authorized Representative, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the BOARD has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; D. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Authorized Representative to the extent the Authorized Representative may require, which approval or ratification shall be final for all the purposes of this clause; E. Transfer title to the BOARD and deliver in the manner, at the times, and to the extent directed by the Authorized Representative any property which, if the contract had been completed, would have been required to be furnished to the BOARD; F. Complete performance of such part of the work as shall not have been terminated by the Authorized Representative; and G. Take such action as may be necessary, or as the Authorized Representative may direct, for the protection and preservation of the property related to this contract, which is in the possession of the Contractor and in which the BOARD has or may acquire an interest. 2.43 TREATMENT OF ASSETS Title to all property furnished by BOARD shall remain in BOARD. Title to all property furnished by the Contractor, for the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in the Contractor. 2.44 WAIVER Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such in writing and signed by Authorized Representative of the Board. 17 Page 123 of 298 DocuSign Envelope ID: 94108CAl-A9F7-4A1B-A0130-E7813241331349 Back to Agenda 18 Page 124 of 298 DocuSign Envelope ID: 94108CAl A91`74A1B-A0130-E7813241331349 Back to Agenda ATTACHMENT I: ATTORNEY'S CERTIFICATION PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM City of Port Orchard PC22-96103-045 I, , hereby certify: I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the City of Port Orchard (the Contractor); and I have also examined any and all documents and records which are pertinent to the Contract, including the application requesting this financial assistance. Based on the foregoing, it is my opinion that: 1. The Contractor is a public body, properly constituted and operating under the laws of the state of Washington, empowered to receive and expend federal, state and local funds, to contract with the state of Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their application. 2. The Contractor is empowered to accept the Public Works Board financial assistance and to provide for repayment of the loan as set forth in the Contract. 3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the above -described public facilities project or to enjoin the Contractor from repaying the loan extended by the Public Works Board with respect to such project. The Contractor is not a party to litigation which will materially affect its ability to repay such loan on the terms contained in the Contract. 4. Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable to the Contractor. �D�occuSSig�nnedd by:: War 1^ Signature o r Attorney Charlotte Archer, Inslee Best Doezie & Ryder P.S. Name 10/7/2021 1 12:34 PM PDT Date 1Page 125of 298 Back to Agenda DocuSign Certificate Of Completion Envelope Id: 94108CA1A9F74A16AOBOE781324B3B49 Subject: Please DocuSign: Port_Orchard_PC22-96103-045.DOC Division: Local Government Program: Public Works Board ContractNumber: PC22-96103-045 Source Envelope: Document Pages: 25 Signatures: 4 Certificate Pages: 5 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) Record Tracking Status: Original 10/4/2021 8:10:53 AM Security Appliance Status: Connected Storage Appliance Status: Connected Signer Events Charlotte Archer carcher@insleebest.com Charlotte Archer Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/7/2021 12:33:59 PM ID:36459001-5bdf-47a1-98b5-39546a63c6f9 Robert Putaansuu rputaansuu@cityofportorchard.us Mayor Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/7/2021 1:29:37 PM ID:fe382341-6519-4247-be16-2932547b27da Kathryn A Gardow pwbgardowk@gmail.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/7/2021 1:41:25 PM ID:1edac431-fc4b-4cf8-b5c6-a4ba15f1e690 In Person Signer Events Holder: Jason Freeze jason.freeze@commerce.wa.gov Pool: StateLocal Pool: Washington State Department of Commerce Signature EDocuSigned by: 6,avle{ft. Qvcl uv F1B020A8F179422.. Signature Adoption: Pre -selected Style Using IP Address: 209.63.25.21 ED—Signed by: F69E88B5DOE74EF... Signature Adoption: Pre -selected Style Using IP Address: 152.44.129.230 Do -Signed by: 7245D4026B7D42E... Signature Adoption: Uploaded Signature Image Using IP Address: 97.113.32.103 Signature Status: Completed Envelope Originator: Jason Freeze 1011 Plum Street SE MS 42525 Olympia, WA 98504-2525 jason.freeze@commerce.wa.gov IP Address: 147.55.149.141 Location: DocuSign Location: DocuSign Timestamp Sent: 10/5/2021 9:23:16 AM Resent: 10/7/2021 12:31:51 PM Viewed: 10/7/2021 12:33:59 PM Signed: 10/7/2021 12:34:10 PM Sent: 10/7/2021 12:34:12 PM Viewed: 10/7/2021 1:29:37 PM Signed: 10/7/2021 1:29:42 PM Sent: 10/7/2021 1:29:45 PM Viewed: 10/7/2021 1:41:25 PM Signed: 10/7/2021 1:41:47 PM Timestamp Page 126 of 298 Back to Agenda Editor Delivery Events Status Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Jacki Brown jbrown@cityofportorchard.us I E1E � Security Level: Email, Account Authentication (None) Using IP Address: 152.44.129.230 Electronic Record and Signature Disclosure: Accepted: 10/5/2021 9:23:15 AM ID: fd 1 aa2ab-bd86-4345-abcf-9923d7664072 Carbon Copy Events Status Witness Events Signature Notary Events Signature Envelope Summary Events Status Envelope Sent Hashed/Encrypted Certified Delivered Security Checked Signing Complete Security Checked Completed Security Checked Payment Events Status Electronic Record and Signature Disclosure Timestamp Timestamp Timestamp Timestamp Sent: 10/4/2021 8:12:17 AM Viewed: 10/5/2021 9:23:15 AM Timestamp Timestamp Timestamp Timestamps 10/4/2021 8:12:17 AM 10/7/2021 1:41:25 PM 10/7/2021 1:41:47 PM 10/7/2021 1:41:47 PM Timestamps Page 127 of 298 Electronic Record and Signature Disclosure created on: 8/11/2020 4:44:12 PM Parties agreed to: Charlotte Archer, Robert Putaansuu, Kathryn A Gardow, Jacki Brown Back to Agenda ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, Washington State Department of Commerce (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check -box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.15 per -page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Page 128 of 298 Back to Agenda Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact Washington State Department of Commerce: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: docusign@commerce.wa.gov To advise Washington State Department of Commerce of your new email address To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at docusign@commerce.wa.gov and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address. If you created a DocuSign account, you may update it with your new email address through your account preferences. To request paper copies from Washington State Department of Commerce To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to docusign@commerce.wa.gov and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with Washington State Department of Commerce To inform us that you no longer wish to receive future notices and disclosures in electronic format you may: Page 129 of 298 Back to Agenda i. decline to sign a document from within your signing session, and on the subsequent page, select the check -box indicating you wish to withdraw your consent, or you may; ii. send us an email to docusign@commerce.wa.gov and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: hops://support.docusi n�guides/signer--uide- signing-system-requirements. Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check -box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. By selecting the check -box next to `I agree to use electronic records and signatures', you confirm that: You can access and read this Electronic Record and Signature Disclosure; and You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and Until or unless you notify Washington State Department of Commerce as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by Washington State Department of Commerce during the course of your relationship with Washington State Department of Commerce. Page 130 of 298 Back to Agenda Washington State Public Works Board Post Office Box 42525 Olympia, Washington 98504-2525 September 9, 2021 Jacki Brown City of Port Orchard 214 Prospect St Port Orchard, WA 98366 Dear Ms. Brown, Thank you for submitting a Public Works Board Construction Loan application for consideration by the Public Works Board (Board). Congratulations, your 390 Zone Low Pressure Booster Station project has been awarded $650,000.00. The Board approved your construction application at their August 6, 2021 board meeting. The approval date is also the loan award date. Any eligible costs incurred from this date forward are reimbursable with the Construction loan fund. Our office just completed the underwriting for this project, and the loan interest rate is 0.94% with a loan term of 20-years. We plan on issuing the contract for signature in the next couple of weeks. Applicants awarded Public Works Board contracts will need to return an executed contract within six months of receipt. Failure to do so will result in withdrawal of the award. Once again, thank you for applying to the Public Works Board. Please feel free to contact your Project Manager, Jason Freeze (360) 725-3161, or email by at jason.freeze((_commerce.wa.gov if you have any questions. Sincerely, Connie Rivera PWB Program Director cc: Application File Administrative services provided by the Department of Commerce (360) 725-2744 Faxp(,0JS18#-0 www.pwb.wa.gov Agenda Item No.: Subject: City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7B Adoption of an Ordinance Approving a Contract with the Washington State Meeting Date Prepared by Public Works Board for the Melcher Pump Atty Routing No: Station Rehabilitation Project and Atty Review Date Ratifying the Mayor's Signature Back to Agenda October 12, 2021 Mark Dorsey, P.E. Public Works Director 366922-0013 - Water October 7, 2021 Summary: On September 9, 2021, the City of Port Orchard was officially notified that it was eligible to receive a $500K loan from the Washington State Public Works Board (PWB) Traditional Fund Loan Program for the Melcher Pump Station Rehabilitation Project, a necessary project for the City's water system. On October 5, 2021, the City of Port Orchard Public Works Department received fully executed PWB Contract No. PC22- 96103-043 from the Washington State Public Works Board with a summary of the terms and conditions as follows; Loan Amount: $500,000 Term 20 Years Interest Rate 0.94% Loan Reimbursement Start Date 8/6/2021 Time of Performance 60-months Unused Loan Amount Penalty None Relationship to Comprehensive Plan: Chapter 7 — Utilities. Recommendation: Staff recommends that the City Council adopt Ordinance No. 040-21, thereby approving and ratifying the Mayor's execution of Contract No. C089-21 (PWB Contract No. PC22-96103-043) with the Washington State Public Works Board for the Melcher Pump Station Rehabilitation Project in the loan amount of $500,000. Motion for Consideration: I move to adopt Ordinance No. 040-21, thereby approving and ratifying the Mayor's execution of Contract No. C089-21 with the Washington State Public Works Board for the Melcher Pump Station Rehabilitation Project in the loan amount of $500,000. Fiscal Impact: Debt service for PWB Emergency Loan. Alternative: Refuse Loan. Attachment: Ordinance, PWB Contract No. PC22-96103-043, and PWB Award Letter (dated 9/9/2021). Page 132 of 298 Back to Agenda ORDINANCE NO. 040-21 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ACCEPTING THE TERMS AND CONDITIONS FOR CONTRACT NO. C089-21 WITH THE WASHINGTON STATE PUBLIC WORKS BOARD TRADITIONAL FUND LOAN PROGRAM FOR THE MELCHER PUMP STATION REHABILITATION PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, on September 9, 2021, the City of Port Orchard Public Works Department was officially notified by Washington State Department of Commerce that the City was successful in obtaining a $500K Loan award through the Washington State Public Works Board Traditional Fund Loan Program for the Melcher Pump Station Rehabilitation Project; and WHEREAS, on, October 5, 2021, the City received fully executed PWB Contract No. PC22-96103-043 from the Washington State Public Works Board for the loan, attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the Port Orchard City Council has determined it to be in the best interest of the City to enter into Contract No. C089-21 with the Public Works Board and accept the loan on the terms and conditions stated therein for the Melcher Pump Station Rehabilitation Project; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby approves of and ratifies the Mayor's execution of Contract No. C089-21 with the Washington State Public Works Board for the Melcher Pump Station Rehabilitation Project, inclusive of the terms and conditions of Public Works Board Traditional Fund Loan Contract No. PC22-96103-043. 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. Page 133 of 298 Back to Agenda Ordinance No. 040-21 Page 2 of 2 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 12th day of October 2021. ATTEST: Robert Putaansuu, Mayor SPONSOR: Brandy Rinearson, MMC, City Clerk Cindy Lucarelli, Councilmember APPROVED AS TO FORM: Charlotte Archer, City Attorney PUBLISHED: EFFECTIVE DATE: Page 134 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda CONTRACT FACE SHEET Contract Number: PC22-96103-043 PUBLIC WORKS BOARD CONSTRUCTION LOAN CONTRACT 1. Contractor 2. Contractor Doing Business As (optional) City of Port Orchard N/A 214 Prospect St Port Orchard, WA 98366 3. Contractor Representative 4. Public Works Board Representative N/A N/A 5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End Date Date $500,000 Federal: ❑ State: 0 Other: ❑ Contract Execution June 1, 2041 N/A: ❑ Date 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10. Tax ID # 11. SWV # 12. UBI # 13. DUNS # 0025665-00 182-000-005 14. Contract Purpose Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction, replacement, rehabilitation, or improvement of streets, roads, bridges, drinking water systems, stormwater systems, sanitary sewage systems, or solid waste facilities, including recycling facilities. The BOARD, defined as the Washington State Public Works Board and Contractor acknowledge and accept the terms of this Contract and attachments and have executed this Contract on the date below to start as of the date and year last written below. The rights and obligations of both parties to this Contract are governed by this Contract and the following other documents that are incorporated by reference: Contract Terms and Conditions including Declarations Page; and Attachment I: Attorney's Certification. FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD uSigned by: DocuSigned by: U�% �1A1 AlU/l iltilA Lr 7 ! . .. a JV84A6BDAhow, Public Works Board Chair Signatu e7 `E Robert Putaansun [Igfe5/2021 1 4: 39 PM PDT Print Name Mayor APPROVED AS TO FORM ONLY Title September 22, 2021 Dawn C. Cortez OW412021 1 10:27 AM PDT Assistant Attorney General Page 135 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Page 13 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda CLIENT INFORMATION Legal Name: Loan Number: PROJECT INFORMATION Project Title: Project City: Project State: Project Zip Code: LOAN INFORMATION Loan Amount: Total Estimated Cost: Total Estimated Project Funding: Loan Forgiveness % (if applicable): Loan Term: Interest Rate: Payment Month: Loan Reimbursement Start Date: Time of Performance DECLARATIONS City of Port Orchard PC22-96103-043 Melcher Pump Station Rehabilitation Port Orchard Washington 98366 $500,000.00 $500,000.00 $500,000.00 0% 20 0.94% June 1st August 6, 2021 60 months from Execution Date of this Contract to Project Completion. SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT N/A LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT Revenue Obligation: This loan is a revenue obligation of the CONTRACTOR payable solely from the net revenue of the Domestic Water system. Payments shall be made from the net revenue of the utility after the payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility having a lien on that net revenue. As used here, "net revenue" means gross revenue minus expenses of maintenance and operations. The BOARD grants the CONTRACTOR the right to issue future bonds and notes that constitute a lien and charge on net revenue superior to the lien and charge of this loan agreement. SCOPE OF WORK The Melcher Pump Station Rehabilitation domestic water project upgrades the SCADA system, electrical controls, and cabinets for a booster station, and replaces piping, pumps, and the generator. The project costs may include but are not limited to: engineering, cultural and historical resources, environmental documentation, review, permits, public involvement, bid documents and construction. The project needs to meet all applicable Local, State, and/or Federal standards. Page 1 Y of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Page 138 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda TABLE OF CONTENTS CONTRACT TERMS AND CONDITIONS................................................................................. 1 Part 1. SPECIAL TERMS AND CONDITIONS........................................................................ 1 1.1 Definitions.............................................................................................................................1 1.2 Authority................................................................................................................................1 1.3 Purpose.................................................................................................................................1 1.4 Order of Precedence............................................................................................................1 1.5 5- year deferral for start-up systems..................................................................................2 1.6 Competitive Bidding Requirements...................................................................................2 1.7 Default in Repayment...........................................................................................................2 1.8 Investment Grade Audit.......................................................................................................2 1.9 Sub -Contractor Data Collection..........................................................................................2 1.10 Eligible Project Costs...........................................................................................................2 1.11 Historical and Cultural Resources......................................................................................3 1.12 Performance Incentives.......................................................................................................3 1.13 Project Completion Amendment and Certified Project Completion Report ...................4 1.14 Project Signs.........................................................................................................................4 1.15 Rate Loan Forgiveness and Term of Loan.........................................................................5 1.16 Recapture..............................................................................................................................5 1.17 Reimbursement Procedures and Payment........................................................................5 1.18 Repayment............................................................................................................................6 1.19 Reports..................................................................................................................................7 1.20 Termination for Cause.........................................................................................................7 1.21 Termination for Convenience..............................................................................................7 1.22 Time of Performance............................................................................................................7 1.23 Contract Suspension...........................................................................................................7 1.24 Special Conditions...............................................................................................................8 1.25 Loan Security........................................................................................................................8 Part 2. GENERAL TERMS AND CONDITIONS...................................................................... 9 2.1 DEFINITIONS..........................................................................................................................9 2.2 Allowable Costs.....................................................................................................................9 2.3 ALL WRITINGS CONTAINED HEREIN.................................................................................9 2.4 AMENDMENTS.......................................................................................................................9 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35................................................................................. 2.6 APPROVAL......................................................................................................................... 2.7 ASSIGNMENT..................................................................................................................... 2.8 ATTORNEYS' FEES........................................................................................................... 2.09 CODE REQUIREMENTS................................................................................................... 2.10 CON FIDENTIALITYISAFEGUARDING OF INFORMATION ............................................ 2.11 CONFORMANCE............................................................................................................... 2.12 CONFLICT OF INTEREST................................................................................................. 2.13 COPYRIGHT PROVISIONS............................................................................................... 2.14 DISALLOWED COSTS...................................................................................................... 2.15 DISPUTES.......................................................................................................................... 2.16 DUPLICATE PAYMENT.................................................................................................... 2.17 GOVERNING LAW AND VENUE...................................................................................... 2.18 INDEMNIFICATION........................................................................................................... 2.19 INDEPENDENT CAPACITY OF THE CONTRACTOR..................................................... 2.20 INDUSTRIAL INSURANCE COVERAGE.......................................................................... 2.21 LAWS................................................................................................................................. ..9 ..9 10 10 10 10 10 11 11 11 12 12 12 12 13 13 13 Page 139 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 2.22 LICENSING, ACCREDITATION AND REGISTRATION.................................................... 13 2.23 LIMITATION OF AUTHORITY............................................................................................ 13 2.24 Local Public Transportation Coordination..................................................................... 13 2.25 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ............................................... 13 2.26 PAY EQUITY....................................................................................................................... 13 2.27 POLITICAL ACTIVITIES..................................................................................................... 14 2.28 PREVAILING WAGE LAW................................................................................................. 14 2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION .............................. 14 2.30 PUBLICITY..........................................................................................................................14 2.31 RECAPTURE...................................................................................................................... 14 2.32 RECORDS MAINTENANCE............................................................................................... 15 2.33 REGISTRATION WITH DEPARTMENT OF REVENUE .................................................... 15 2.34 RIGHT OF INSPECTION.................................................................................................... 15 2.35 SAVINGS............................................................................................................................ 15 2.36 SEVERABILITY.................................................................................................................. 15 2.37 SUBCONTRACTING.......................................................................................................... 15 2.38 SURVIVAL.......................................................................................................................... 16 2.39 TAXES.................................................................................................................................16 2.40 TERMINATION FOR CAUSE............................................................................................. 16 2.41 TERMINATION FOR CONVENIENCE............................................................................... 16 2.42 TERMINATION PROCEDURES......................................................................................... 16 2.43 TREATMENT OF ASSETS................................................................................................. 17 2.44 WAIVER.............................................................................................................................. 17 Page 140 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda CONTRACT TERMS AND CONDITIONS PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM Part 1. SPECIAL TERMS AND CONDITIONS 1.1 Definitions As used throughout this Construction Loan Contract the following terms shall have the meaning set forth below: A. "Contract" shall mean this Construction Loan Contract. B. "Contractor" shall mean the local government identified on the Contract Face Sheet performing service(s) under this Contract and who is a Party to the Contract, and shall include all employees and agents of the Contractor. C. "The BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and who is a Party to the Contract. D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions as stated on the Declarations Page of this Loan Contract, displayed within the Contract in THIS STYLE for easier identification. 1.2 Authority Acting under the authority of Chapter 43.155 RCW, the BOARD has awarded the Contractor a Public Works Board construction loan for an approved public works project. 1.3 Purpose The BOARD and the Contractor have entered into this Contract to undertake a local public works project that furthers the goals and objectives of the Washington State Public Works Program. The project will be undertaken by the Contractor and will include the activities described in the SCOPE OF WORK shown on the Declarations page. The project must be undertaken in accordance with the loan terms and conditions, and all applicable federal, state and local laws and ordinances, which are incorporated by reference. 1.4 Order of Precedence In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the following order: A. Applicable federal and state of Washington statutes and regulations. B. Special Terms and Conditions including attachments. C. General Terms and Conditions. 1 Page 141 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 1.5 5- year deferral for start-up systems If the project financed by this Contract is to develop a system to deliver previously unavailable services, and revenue from those services is to repay the loan, the new system is eligible for a deferral of loan payments for sixty (60) months after the Contract execution date. The Contractor may provide a written request to the BOARD requesting a 5-year deferral for an eligible system. The BOARD may approve the deferral request. Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is due June 1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of the 7th year of the loan term. 1.6 Competitive Biddinq Requirements The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding requirements for projects assisted in whole or in part with money from the Public Works Program. 1.7 Default in Repayment Loan repayments shall be made on the loan in accordance with Section 1.18 of this Contract. A payment not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall be assessed a monthly penalty beginning on the first (1st) day past the due date. The penalty will be assessed on the entire payment amount. The penalty will be one percent (1 %) per month or twelve percent (12%) per annum. The same penalty terms shall apply at project completion if the repayment of loan funds in excess of eligible costs are not repaid at the time of the Project Completion Amendment is submitted, as provided for in Section 1.13. The Contractor acknowledges and agrees to the BOARD's right, upon delinquency in the payment of any annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of such delinquency. The Contractor shall be responsible for all legal fees incurred by the BOARD in any action undertaken to enforce its rights under this section. 1.8 Investment Grade Audit For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other public works facility for which an investment grade audit is obtainable, Contractor must undertake an investment grade audit. Costs incurred as part of the investment grade audit are eligible project costs. 1.9 Sub -Contractor Data Collection Contractor will submit reports, in a form and format to be provided by the BOARD and at intervals as agreed by the parties, regarding work under this Contract performed by sub -contractors and the portion of the Contract funds expended for work performed by sub -contractors, including but not necessarily limited to minority -owned, women -owned, and veteran -owned business sub -contractors. "Sub -Contractors" shall mean sub -contractors of any tier. 1.10 Eligible Project Costs The Eligible project costs must consist of expenditures eligible under Washington Administrative Code (WAC) 399-30-030 and be related only to project activities described in the declared SCOPE OF WORK. 2 Page 142 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Eligible costs for reimbursement shall be construed to mean expenditures incurred and paid, or incurred and payable within thirty (30) days of the reimbursement request. Only costs that have been incurred on or after LOAN REIMBURSEMENT START DATE shown in the Declarations are eligible for reimbursement under this Contract. Eligible costs will be paid according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for projects assisted with Public Works Board loans. These terms supersede the terms in Section 2.2. Allowable Costs. 1.11 Historical and Cultural Resources Prior to commencing construction, Contractor shall complete the requirements of Governor's Executive Order 21-02, or, as an alternative to completion of Governor's Executive Order 21-02, Contractor shall complete Section 106 of the National Historic Preservation Act, as applicable. Contractor agrees that the Contractor is legally and financially responsible for compliance with all laws, regulations, and agreements related to the preservation of historical or cultural resources and agrees to indemnify, defend and hold harmless the BOARD and the State of Washington in relation to any claim related to such historical or cultural resources discovered, disturbed, or damaged as a result of the project funded by this Contract. In addition to the requirements set forth in this Contract, Contractor shall, in accordance with Governor's Executive Order 21-02, coordinate with the Washington State Department of Archaeology and Historic Preservation (DAHP), including any recommended consultation with any affected tribe(s), during project design and prior to construction to determine the existence of any tribal cultural resources affected by the proposed project funded by this Contract. Contractor agrees to avoid, minimize, or mitigate impacts to cultural resource as a continuing pre -requisite to receipt of funds under this Contract. The Contractor agrees that, unless the Contractor is proceeding under an approved historical and cultural monitoring plan or other memorandum of agreement, if historical or cultural resources are discovered during construction, the Contractor shall immediately stop work and notify the local historical preservation officer and the state's historic preservation officer at DAHP. If human remains are uncovered, the Contractor shall report the presence and location of the remains to the coroner and local enforcement immediately, then contact DAHP and the concerned tribe's cultural staff or committee. The Contractor shall require this provision to be contained in all sub -contracts for work or services related to the declared SCOPE OF WORK. In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW 27.44.040 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and, WAC 25-48 regarding Archaeological Excavation and Removal Permits. Completion of the Section 106 of the National Historic Preservation Act shall substitute for completion of Governor's Executive Order 21-02. In the event that the Contractor finds it necessary to amend the SCOPE OF WORK, the Contractor may be required to re -comply with Governor's Executive Order 21-02 or Section 106 of the National Historic Preservation Act. 1.12 Performance Incentives The Contractor shall complete the project no later than sixty (60) months after the date of Contract execution. 3 Page 143 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Should the Contractor submit the Certified Project Completion Report within forty-eight (48) months of the date of Contract execution, the Contractor may choose one of the two following incentives upon project completion: Option A: The repayment period will be increased by twenty-four (24) months, not to exceed the life of the asset, OR: Option B: The interest rate will be decreased by one -quarter of one percent (0.25%). Should the Contractor submit the Certified Project Completion Report within thirty-six (36) months of the date of Contract execution, the Contractor may choose one of the following two incentives upon project completion: Option C: The repayment period will be increased by sixty (60) months, not to exceed the life of the asset, OR; Option D: The interest rate will be decreased by up to one-half of one percent (0.50%). Once an option is selected, the Contract shall be modified to note the appropriate change and no further adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of the performance incentive chosen, at no point in time shall the minimum loan interest rate be less than 0.25%. The calculation of interest rate and term adjustments will apply to the remaining payments beginning from the date the Project Completion report is certified. 1.13 Project Completion Amendment and Certified Project Completion Report The Contractor shall complete a Certified Project Completion Report when all activities identified in the SCOPE OF WORK are complete. The BOARD will supply the Contractor with the Certified Project Completion Report form, which shall include: A. A certified statement that the project, as described in the declared SCOPE OF WORK, is complete and, if applicable, meets required standards. B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the project as described in the SCOPE OF WORK. C. Certification that all costs associated with the project have been incurred and have been accounted for. Costs are incurred when goods and services are received and/or Contract work is performed. D. A final voucher for the remaining eligible funds. E. Pictures of Completed Project. The Contractor will submit the Certified Project Completion Report together with the last Invoice Voucher for a sum not to exceed the balance of the loan amount. The final Invoice Voucher payment shall not occur prior to the completion of all project activities identified in the SCOPE OF WORK and the BOARD's receipt and acceptance of the Certified Project Completion Report. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, term, and interest rate. 1.14 Project Signs If the Contractor displays, during the period covered by this Contract, signs or markers identifying those agencies participating financially in the approved project, the sign or marker must identify the Washington State Public Works Board as a participant in the project. 4 Page 144 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 1.15 Rate Loan Forgiveness and Term of Loan The BOARD shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the Contract Face Sheet and declared on the Contract Declarations Page. The interest rate shall be the declared INTEREST RATE per annum on the outstanding principal balance. The amount of loan forgiveness (if applicable) shall be as stated on the attached Declarations Page, and identified therein as LOAN FORGIVENESS %. The length of the loan shall not exceed the declared LOAN TERM in years, with the final payment due by the CONTRACT END DATE as shown on the Contract Face Sheet. The loan forgiveness shall be applied at project completion and shall apply to the lesser of the loan amount or the actual eligible costs and that declared percent on any accrued interest. The percent of loan forgiveness and interest rate shall not be changed, regardless of the actual cost of the project and the Affordability Index at project completion. 1.16 Recapture The right of recapture under Section 2.31. Recapture shall exist for a period not to exceed six (6) years following Contract termination. In the event that the Board is required to institute legal proceedings to enforce the recapture provision, the BOARD shall be entitled to its costs, including attorney's fees. 1.17 Reimbursement Procedures and Payment If funding or appropriation is not available at the time the invoice is submitted, or when this Contract is executed, the issuance of warrants will be delayed or suspended until such time as funds or appropriation become available. Therefore, subject to the availability of funds, warrants shall be issued to the Contractor for reimbursement of allowable expenses incurred by the Contractor while undertaking and administering approved project activities in accordance with the declared SCOPE OF WORK. The BOARD shall reimburse the Contractor for eligible project expenditures up to the maximum loan amount under this Contract, as identified in Section 1.10. When requesting reimbursement for costs incurred, the Contractor shall submit all Invoice Vouchers and any required documentation electronically through the Department of Commerce's (COMMERCE) Contracts Management System (CMS), which is available through the Secure Access Washington (SAW) portal; referencing the SCOPE OF WORT( project activity performed, and any appropriate documentation such as bills, invoices, and receipts. If the Contractor has constraints preventing access to COMMERCE's online A-19 portal, a hard copy A-19 form may be provided by the BOARD Project Manager upon request. Requests for reimbursements for costs related to construction activities will not be accepted until the Contractor provides: • Proof of compliance with Governor's Executive Order 21-02 or Section 106 of the National Historic Preservation Act, as described in Section 1.11, and • Signed Public Works Board Notice of Contract Award and Notice to Proceed, which follows the formal award of a construction contract. The BOARD will pay the Contractor upon acceptance of the work performed and receipt of properly completed invoices. Invoices shall be submitted to the BOARD not more often than monthly. Payment shall be considered timely if made by the BOARD within thirty (30) calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Contractor. 5 Page 145 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda The BOARD may, at its sole discretion, terminate the Contract or withhold payments claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this Contract. No payments in advance or in anticipation of services or supplies to be provided under this Contract shall be made by the BOARD. BOARD shall not release the final five (5) percent of the total grant amount until acceptance by BOARD of project completion report. Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by another source for an eligible project cost, then the Contractor shall not be reimbursed by the BOARD for that cost. Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its subcontractors. In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At the time of project completion, the Contractor shall submit to the BOARD a Project Completion Amendment certifying the total actual project costs and local share. The final Public Works loan disbursement shall bring the total loan to the lesser of 100% of the eligible project costs or the total declared LOAN AMOUNT. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, and interest rate. In the event that the final costs identified in the Project Completion Amendment indicate that the Contractor has received Public Works Board monies in excess of 100.00% of eligible costs, all funds in excess of 100.00% shall be repaid to the Board by payment to the Department of Commerce, or its successor, together with the submission of the Project Completion Amendment. 1.18 Repayment Loan repayment installments are due on the day and month identified under the term: PAYMENT MONTH on the Declarations Page. Payments are due each year during the term of the loan beginning one year from the date of Contract execution. Interest only will be charged for this payment if a warrant is issued prior to this date. All subsequent payments shall consist of principal and accrued interest due on the specified PAYMENT MONTH date of each year during the remaining term of the loan. Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum based on a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest will begin to accrue from the date each warrant is issued to the Contractor. The final payment shall be on or before the CONTRACT END DATE shown on the Declarations page, of an amount sufficient to bring the loan balance to zero. In the event that the BOARD approves the Contractor's request for a deferral as outlined in Section 1.5, then the first loan repayment is due sixty (60) months after Contract execution. Interest accrues for the sixty (60) months after Contract execution. The accrued interest only will be charged for this payment if a warrant is issued prior to this date. Interest and principal payments are due on the declared PAYMENT MONTH date of each year during the remaining term of the loan. The Contractor has the right to repay the unpaid balance of the loan in full at any time or make accelerated payments without penalty. The Contractor will repay the loan in accordance with the preceding conditions through the use of a check, money order, or equivalent means made payable to the Washington State Department of Commerce, or its successor. 6 Page 146 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 1.19 Reports The Contractor shall furnish the BOARD with: A. Project Status Reports with each Invoice Voucher; B. Project Quarterly Reports (if no funds have been reimbursed in the quarter) and/or Quarterly Expenditures Report; C. Quarterly Projection Invoice Reports; D. Certified Project Completion Report at project completion (as described in Section 1.13); E. Pictures of various stages of the project, and F.Other reports as the BOARD may require. 1.20 Termination for Cause If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds only for those activities identified in the SCOPE OF WORK, the BOARD may terminate the Contract in whole or in part at any time. The BOARD shall notify the Contractor in writing of its determination to terminate, the reason for such termination, and the effective date of the termination. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.40 Termination for Cause. 1.21 Termination for Convenience The BOARD may terminate this Contract in the event that state funds are no longer available to the BOARD, or are not appropriated for the purpose of meeting the BOARD's obligations under this Contract. Termination will be effective when the BOARD sends written notice of termination to the Contractor. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.41 Termination for Convenience. 1.22 Time of Performance No later than sixty (60) months after the date of Contract execution the Contractor must reach project completion. Failure to meet Time of Performance shall constitute default of this Contract. In the event of extenuating circumstances, the Contractor may request, in writing, that the BOARD extend the deadline for project completion. The BOARD may extend the deadline. The term of this Contract shall be for the entire term of the loan, regardless of actual project completion, unless terminated sooner as provided herein. 1.23 Contract Suspension In the event that the Washington State Legislature fails to pass and the Governor does not authorize a Capital Budget by June 30 of each biennium, the Washington State Constitution Article 8 and RCW 43.88.130 and RCW 43.88.290 prohibit expenditures or commitments of state funds in the absence of appropriation. In such event, all work under this Contract will be suspended effective July 1. The Contractor shall immediately suspend work under this Contract and take all reasonable steps necessary to minimize the cost of performance directly attributable to such suspension until the suspension is cancelled. 7 Page 147 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda THE BOARD shall notify the Contractor immediately upon lifting of the Contract suspension. 1.24 Special Conditions If SPECIAL CONDITIONS are listed on the Contract Declarations Page then these conditions are herein incorporated as part of the terms and requirements of this Contract. 1.25 Loan Security Loan Security payments shall be made as stated on the attached Declarations Page, and identified therein as LOAN SECURITY. 8 Page 148 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Part 2. GENERAL TERMS AND CONDITIONS 2.1 DEFINITIONS DocuSigned by: As used throughout this Contract, th forl4�r ;firms shall have the meaning set forth below: A. "Authorized Representative' s� �P4i 99H the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. B. "COMMERCE" shall mean the Department of Commerce. C. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this Contract, and shall include all employees and agents of the Contractor. D. "BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and which is a Party to the Contract E. "Personal Information" shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. F. "State" shall mean the state of Washington. G. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or part of those services under this Contract under a separate contract with the Contractor. The terms "subcontractor" and "subcontractors" mean subcontractor(s) in any tier. 2.2 Allowable Costs Costs allowable under this Contract are actual expenditures according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. 2.3 ALL WRITINGS CONTAINED HEREIN This Contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. 2.4 AMENDMENTS This Contract may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35 The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. 2.6 APPROVAL This contract shall be subject to the written approval of the Board's Authorized Representative and shall not be binding until so approved. The contract may be altered, amended, or waived only by a written amendment executed by both parties. 9 Page 149 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 2.7 ASSIGNMENT Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the Contractor without prior written consent of the Board. 2.8 ATTORNEYS' FEES Unless expressly permitted under another provision of the Contract, in the event of litigation or other action brought to enforce Contract terms, each party agrees to bear its own attorney's fees and costs. 2.09 CODE REQUIREMENTS All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and federal building, mechanical, plumbing, fire, energy and barrier -free codes. Compliance with the Americans with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building Department. 2.10 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION A. "Confidential Information" as used in this section includes: 1. All material provided to the Contractor by the Board that is designated as "confidential" by the Board; 2. All material produced by the Contractor that is designated as "confidential" by the Board; and 3. All personal information in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of government services, addresses, telephone numbers, social security number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or disclosure of Confidential Information. The Contractor shall use Confidential Information solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information to any third party except with the prior written consent of the Board or as may be required by law. The Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto. Upon request, the Contractor shall provide the Board with its policies and procedures on confidentiality. The Board may require changes to such policies and procedures as they apply to this Contract whenever the Board reasonably determines that changes are necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time period specified by the Board. Upon request, the Contractor shall immediately return to the Board any Confidential Information that the Board reasonably determines has not been adequately protected by the Contractor against unauthorized disclosure. C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of any unauthorized use or disclosure of any confidential information, and shall take necessary steps to mitigate the harmful effects of such use or disclosure. 2.11 CONFORMANCE If any provision of this contract violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. Page 156 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 2.12 CONFLICT OF INTEREST Notwithstanding any determination by the Executive Ethics Board or other tribunal, the BOARD may, in its sole discretion, by written notice to the CONTRACTOR terminate this contract if it is found after due notice and examination by the BOARD that there is a violation of the Ethics in Public Service Act, Chapters 42.52 RCW and 42.23 RCW; or any similar statute involving the CONTRACTOR in the procurement of, or performance under this contract. Specific restrictions apply to contracting with current or former state employees pursuant to chapter 42.52 of the Revised Code of Washington. The CONTRACTOR and their subcontractor(s) must identify any person employed in any capacity by the state of Washington that worked on the PUBLIC WORKS BOARD including but not limited to formulating or drafting the legislation, participating in loan procurement planning and execution, awarding loans, and monitoring loans, during the 24 month period preceding the start date of this Loan. Identify the individual by name, the agency previously or currently employed by, job title or position held, and separation date. If it is determined by BOARD that a conflict of interest exists, the CONTRACTOR may be disqualified from further consideration for the award of a Loan. In the event this contract is terminated as provided above, BOARD shall be entitled to pursue the same remedies against the CONTRACTOR as it could pursue in the event of a breach of the contract by the CONTRACTOR. The rights and remedies of BOARD provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which BOARD makes any determination under this clause shall be an issue and may be reviewed as provided in the "Disputes" clause of this contract. 2.13 COPYRIGHT PROVISIONS Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the author of such Materials. In the event the Materials are not considered "works for hire" under the U.S. Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials, including all intellectual property rights, moral rights, and rights of publicity to the Board effective from the moment of creation of such Materials. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the ability to transfer these rights. For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty -free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that the Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the Board. The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materials furnished under this Contract, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Contract. The Contractor shall provide the Board with prompt written notice of each notice or claim of infringement received by the Contractor with respect to any Materials delivered under this Contract. The Board shall have the right to modify or remove any restrictive markings placed upon the Materials by the Contractor. `Ai E ! 016%14 wel4v1 =1 OX91013 f - The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors. 11 Page 151 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 2.15 DISPUTES Except as otherwise provided in this Contract, when a dispute arises between the parties and it cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who may designate a neutral person to decide the dispute. The request for a dispute hearing must: • be in writing; • state the disputed issues; • state the relative positions of the parties; • state the Contractor's name, address, and Contract number; and • be mailed to the Chair and the other party's (respondent's) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's designee and the requestor within five (5) working days. The Chair or designee shall review the written statements and reply in writing to both parties within ten (10) working days. The Chair or designee may extend this period if necessary by notifying the parties. The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this Contract shall be construed to limit the parties' choice of a mutually acceptable alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above. 2.16 DUPLICATE PAYMENT The Contractor certifies that work to be performed under this contract does not duplicate any work to be charged against any other contract, subcontract, or other source. 2.17 GOVERNING LAW AND VENUE This Contract shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. 2.18 INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of Washington, BOARD, agencies of the state and all officials, agents and employees of the state, for, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. "Claim" as used in this contract, means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorney's fees, attributable for bodily injury, sickness, disease, or death, or injury to or the destruction of tangible property including loss of use resulting therefrom. The Contractor's obligation to indemnify, defend, and hold harmless shall not be eliminated by any actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers. The Contractor expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to the Contractor's or any subcontractor's performance or failure to perform the contract. Contractor's obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agents, agencies, employees and officials. The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the state and its agencies, officers, agents or employees. 12 Page 152 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda 2.19 INDEPENDENT CAPACITY OF THE CONTRACTOR The parties intend that an independent contractor relationship will be created by this Contract. The Contractor and its employees or agents performing under this Contract are not employees or agents of the state of Washington or the Board. The Contractor will not hold itself out as or claim to be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and control of the work will be solely with the Contractor. 2.20 INDUSTRIAL INSURANCE COVERAGE The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the Board may collect from the Contractor the full amount payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to collect from the Contractor. 2.21 LAWS The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of local and state and federal governments, as now or hereafter amended. 2.22 LICENSING, ACCREDITATION AND REGISTRATION The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements or standards necessary for the performance of this Contract. 2.23 LIMITATION OF AUTHORITY Only the Authorized Representative or Authorized Representative's designee by writing (designation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Contract. 2.24 Local Public Transportation Coordination Where applicable, Contractor shall participate in local public transportation forums and implement strategies designed to ensure access to services. 2.25 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS During the performance of this Contract, the Contractor shall comply with all federal, state, and local nondiscrimination laws, regulations and policies. In the event of the Contractor's non-compliance or refusal to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or terminated in whole or in part, and the Contractor may be declared ineligible for further contracts with the Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.26 PAY EQUITY The Contractor agrees to ensure that "similarly employed" individuals in its workforce are compensated as equals, consistent with the following: 13 Page 153 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda A. Employees are "similarly employed" if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed; B. Contractor may allow differentials in compensation for its workers if the differentials are based in good faith and on any of the following: 1. A seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. 2. A bona fide job -related factor or factors may include, but not be limited to, education, training, or experience that is: Consistent with business necessity; not based on or derived from a gender -based differential; and accounts for the entire differential. 3. A bona fide regional difference in compensation level must be: Consistent with business necessity; not based on or derived from a gender -based differential; and account for the entire differential. This Contract may be terminated by the BOARD, if the BOARD or the Department of Enterprise Services determines that the Contractor is not in compliance with this provision. 2.27 POLITICAL ACTIVITIES Political activity of Contractor employees and officers are limited by the State Campaign Finances and Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508. No funds may be used for working for or against ballot measures or for or against the candidacy of any person for public office. 2.28 PREVAILING WAGE LAW The Contractor certifies that all contractors and subcontractors performing work on the Project shall comply with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by this contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39.12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's review upon request. 2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION The funds provided under this Contract shall not be used in payment of any bonus or commission for the purpose of obtaining approval of the application for such funds or any other approval or concurrence under this Contract provided, however, that reasonable fees or bona fide technical consultant, managerial, or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project costs. 2.30 PUBLICITY The Contractor agrees not to publish or use any advertising or publicity materials in which the state of Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written consent of the Board. 2.31 RECAPTURE In the event that the Contractor fails to perform this contract in accordance with state laws, federal laws, and/or the provisions of this contract, the Board reserves the right to recapture funds in an amount to compensate the Board for the noncompliance in addition to any other remedies available at law or in equity. 14 Page 154 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Repayment by the Contractor of funds under this recapture provision shall occur within the time period specified by the Board. In the alternative, the Board may recapture such funds from payments due under this contract. 2.32 RECORDS MAINTENANCE The Contractor shall maintain all books, records, documents, data and other evidence relating to this Contract and performance of the services described herein, including but not limited to accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Contract. Contractor shall retain such records for a period of six years following the date of final payment. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been finally resolved. 2.33 REGISTRATION WITH DEPARTMENT OF REVENUE If required by law, the Contractor shall complete registration with the Washington State Department of Revenue. 2.34 RIGHT OF INSPECTION At no additional cost all records relating to the Contractor's performance under this Contract shall be subject at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and federal and state officials so authorized by law, in order to monitor and evaluate performance, compliance, and quality assurance under this Contract. The Contractor shall provide access to its facilities for this purpose. 2.35 SAVINGS In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Contract and prior to normal completion, the Board may terminate the Contract under the "Termination for Convenience" clause, without the ten business day notice requirement. In lieu of termination, the Contract may be amended to reflect the new funding limitations and conditions. 2.36 SEVERABILITY If any provision of this Contract or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect without the invalid provision, if such remainder conforms to the requirements of law and the fundamental purpose of this Contract and to this end the provisions of this Contract are declared to be severable. 2.37 SUBCONTRACTING The Contractor may only subcontract work contemplated under this Contract if it obtains the prior written approval of the Board. If the Board approves subcontracting, the Contractor shall maintain written procedures related to subcontracting, as well as copies of all subcontracts and records related to subcontracts. For cause, the Board in writing may: (a) require the Contractor to amend its subcontracting procedures as they relate to this Contract; (b) prohibit the Contractor from subcontracting with a particular person or entity; or (c) require the Contractor to rescind or amend a subcontract. Every subcontract shall bind the Subcontractor to follow all applicable terms of this Contract. The Contractor is responsible to the Board if the Subcontractor fails to comply with any applicable term or condition of this Contract. The Contractor shall appropriately monitor the activities of the Subcontractor to assure fiscal 15 Page 155 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda conditions of this Contract. In no event shall the existence of a subcontract operate to release or reduce the liability of the Contractor to the Board for any breach in the performance of the Contractor's duties. Every subcontract shall include a term that the Board and the State of Washington are not liable for claims or damages arising from a Subcontractor's performance of the subcontract. 2.38 SURVIVAL The terms, conditions, and warranties contained in this Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive. 2.39 TAXES All payments accrued on account of payroll taxes, unemployment contributions, the Contractor's income or gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole responsibility of the Contractor. 2.40 TERMINATION FOR CAUSE In the event BOARD determines the Contractor has failed to comply with the conditions of this contract in a timely manner, BOARD has the right to suspend or terminate this contract. Before suspending or terminating the contract, BOARD shall notify the Contractor in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days, the contract may be terminated or suspended. In the event of termination or suspension, the Contractor shall be liable for damages as authorized by law. BOARD reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Contractor from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the Contractor or a decision by BOARD to terminate the contract. A termination shall be deemed a "Termination for Convenience" if it is determined that the Contractor: (1) was not in default; or (2) failure to perform was outside of his or her control, fault or negligence. The rights and remedies of BOARD provided in this contract are not exclusive and are, in addition to any other rights and remedies, provided by law. 2.41 TERMINATION FOR CONVENIENCE Except as otherwise provided in this Contract the Board may, by ten (10) business days written notice, beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is so terminated, the Board shall be liable only for payment required under the terms of this Contract for services rendered or goods delivered prior to the effective date of termination. 2.42 TERMINATION PROCEDURES Upon termination of this contract, BOARD, in addition to any other rights provided in this contract. The rights and remedies of BOARD provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. After receipt of a notice of termination, and except as otherwise directed by the Authorized Representative, the Contractor shall: A. Stop work under the Contract on the date, and to the extent specified, in the notice; B. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the contract that is not terminated; Page 15� of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda C. Assign to the BOARD, in the manner, at the times, and to the extent directed by the Authorized Representative, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the BOARD has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; D. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Authorized Representative to the extent the Authorized Representative may require, which approval or ratification shall be final for all the purposes of this clause; E. Transfer title to the BOARD and deliver in the manner, at the times, and to the extent directed by the Authorized Representative any property which, if the contract had been completed, would have been required to be furnished to the BOARD; F. Complete performance of such part of the work as shall not have been terminated by the Authorized Representative; and G. Take such action as may be necessary, or as the Authorized Representative may direct, for the protection and preservation of the property related to this contract, which is in the possession of the Contractor and in which the BOARD has or may acquire an interest. 2.43 TREATMENT OF ASSETS Title to all property furnished by BOARD shall remain in BOARD. Title to all property furnished by the Contractor, for the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in the Contractor. 2.44 WAIVER Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such in writing and signed by Authorized Representative of the Board. 17 Page 157 of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda Page 15$ of 298 DocuSign Envelope ID: 10B9CD30-E55C-425B-8429-F4D96AF906DF Back to Agenda ATTACHMENT I: ATTORNEY'S CERTIFICATION PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM City of Port Orchard PC22-96103-043 I, , hereby certify: I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the City of Port Orchard (the Contractor); and I have also examined any and all documents and records which are pertinent to the Contract, including the application requesting this financial assistance. Based on the foregoing, it is my opinion that: 1. The Contractor is a public body, properly constituted and operating under the laws of the state of Washington, empowered to receive and expend federal, state and local funds, to contract with the state of Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their application. 2. The Contractor is empowered to accept the Public Works Board financial assistance and to provide for repayment of the loan as set forth in the Contract. 3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the above -described public facilities project or to enjoin the Contractor from repaying the loan extended by the Public Works Board with respect to such project. The Contractor is not a party to litigation which will materially affect its ability to repay such loan on the terms contained in the Contract. 4. Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable to the Contractor. �D�occuSSig�nnedd by:: War 1^ Signature o r Attorney Charlotte Archer, Inslee Best Doezie & Ryder P.S. Name 10/5/2021 1 9:24 AM PDT Date Page 1591of 298 Back to Agenda DocuSign Certificate Of Completion Envelope Id: 1OB9CD3OE55C425B8429F4D96AF906DF Subject: Please DocuSign: Port_Orchard_PC22-96103-043.DOC Division: Local Government Program: Public Works Board ContractNumber: PC22-96103-043 Source Envelope: Document Pages: 25 Signatures: 4 Certificate Pages: 5 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) Record Tracking Status: Original 10/4/2021 8:08:31 AM Security Appliance Status: Connected Storage Appliance Status: Connected Signer Events Charlotte Archer carcher@insleebest.com Charlotte Archer Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2021 9:23:53 AM ID:fa0161f4-4b7e-41f6-a1c4-f77afb4625b5 Robert Putaansuu rputaansuu@cityofportorchard.us Mayor Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2021 10:25:56 AM ID:1b9cca9a-a9fa-4c7b-ba56-e377de3a9a2e Kathryn A Gardow pwbgardowk@gmail.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2021 4:39:00 PM ID:a18bb4ca-4f88-45f4-b463-92b882502777 In Person Signer Events Holder: Jason Freeze jason.freeze@commerce.wa.gov Pool: StateLocal Pool: Washington State Department of Commerce Signature EDocuSigned by: 6,avle{ft. Qvcl uv F1B020A8F179422.. Signature Adoption: Pre -selected Style Using IP Address: 209.63.25.21 ED—Signed by: F69E88B5DOE74EF... Signature Adoption: Pre -selected Style Using IP Address: 152.44.129.230 Do -Signed by: 7245D4026B7D42E... Signature Adoption: Uploaded Signature Image Using IP Address: 97.113.32.103 Signature Status: Completed Envelope Originator: Jason Freeze 1011 Plum Street SE MS 42525 Olympia, WA 98504-2525 jason.freeze@commerce.wa.gov IP Address: 147.55.149.141 Location: DocuSign Location: DocuSign Timestamp Sent: 10/5/2021 9:22:40 AM Viewed: 10/5/2021 9:23:53 AM Signed: 10/5/2021 9:24:08 AM Sent: 10/5/2021 9:24:11 AM Viewed: 10/5/2021 10:25:56 AM Signed: 10/5/2021 10:27:13 AM Sent: 10/5/2021 10:27:16 AM Viewed: 10/5/2021 4:39:00 PM Signed: 10/5/2021 4:39:57 PM Timestamp Page 160 of 298 Back to Agenda Editor Delivery Events Status Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Jacki Brown jbrown@cityofportorchard.us I E1E � Security Level: Email, Account Authentication (None) Using IP Address: 152.44.129.230 Electronic Record and Signature Disclosure: Accepted: 10/5/2021 9:22:40 AM ID: cf809cfO-fleO-45f3-8357-ad6l56db2f2b Carbon Copy Events Status Witness Events Signature Notary Events Signature Envelope Summary Events Status Envelope Sent Hashed/Encrypted Certified Delivered Security Checked Signing Complete Security Checked Completed Security Checked Payment Events Status Electronic Record and Signature Disclosure Timestamp Timestamp Timestamp Timestamp Sent: 10/4/2021 8:10:37 AM Viewed: 10/5/2021 9:22:40 AM Timestamp Timestamp Timestamp Timestamps 10/4/2021 8:10:37 AM 10/5/2021 4:39:00 PM 10/5/2021 4:39:57 PM 10/5/2021 4:39:57 PM Timestamps Page 161 of 298 Electronic Record and Signature Disclosure created on: 8/11/2020 4:44:12 PM Parties agreed to: Charlotte Archer, Robert Putaansuu, Kathryn A Gardow, Jacki Brown Back to Agenda ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, Washington State Department of Commerce (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check -box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.15 per -page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Page 162 of 298 Back to Agenda Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact Washington State Department of Commerce: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: docusign@commerce.wa.gov To advise Washington State Department of Commerce of your new email address To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at docusign@commerce.wa.gov and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address. If you created a DocuSign account, you may update it with your new email address through your account preferences. To request paper copies from Washington State Department of Commerce To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to docusign@commerce.wa.gov and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with Washington State Department of Commerce To inform us that you no longer wish to receive future notices and disclosures in electronic format you may: Page 163 of 298 Back to Agenda i. decline to sign a document from within your signing session, and on the subsequent page, select the check -box indicating you wish to withdraw your consent, or you may; ii. send us an email to docusign@commerce.wa.gov and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: hops://support.docusi n�guides/signer--uide- signing-system-requirements. Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check -box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. By selecting the check -box next to `I agree to use electronic records and signatures', you confirm that: You can access and read this Electronic Record and Signature Disclosure; and You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and Until or unless you notify Washington State Department of Commerce as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by Washington State Department of Commerce during the course of your relationship with Washington State Department of Commerce. Page 164 of 298 Back to Agenda Washington State Public Works Board Post Office Box 42525 Olympia, Washington 98504-2525 September 9, 2021 Jacki Brown City of Port Orchard 214 Prospect St Port Orchard, WA 98366 Dear Ms. Brown, Thank you for submitting a Public Works Board Construction Loan application for consideration by the Public Works Board (Board). Congratulations, your Melcher Pump Station Rehabilitation project has been awarded $500,000.00. The Board approved your construction application at their August 6, 2021 board meeting. The approval date is also the loan award date. Any eligible costs incurred from this date forward are reimbursable with the Construction loan fund. Our office just completed the underwriting for this project, and the loan interest rate is 0.94% with a loan term of 20-years. We plan on issuing the contract for signature in the next couple of weeks. Applicants awarded Public Works Board contracts will need to return an executed contract within six months of receipt. Failure to do so will result in withdrawal of the award. Once again, thank you for applying to the Public Works Board. Please feel free to contact your Project Manager, Jason Freeze (360) 725-3161, or email by at jason.freeze((_commerce.wa.gov if you have any questions. Sincerely, Connie Rivera PWB Program Director cc: Application File Administrative services provided by the Department of Commerce (360) 725-2744 Faxp(,0i0 www.pwb.wa.gov Agenda Item No.: Subject: City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7C Adoption of an Ordinance Approving a Contract with the Washington State Meeting Date Prepared by Public Works Board for the Sewer Lift Atty Routing No Station Controls Upgrades Project and Atty Review Date Ratifying the Mayor's Signature Back to Agenda October 12, 2021 Mark Dorsey, P.E. Public Works Director 366922-0014 - Sewer October 7, 2021 Summary: On September 9, 2021, the City of Port Orchard was officially notified that it was eligible to receive an $800K loan from the Washington State Public Works Board (PWB) Traditional Fund Loan Program for the Sewer Lift Station Controls Upgrades Project, a necessary project for the City's sanitary sewer system. On October 5, 2021, the City of Port Orchard Public Works Department received fully executed PWB Contract No. PC22-96103-040 from the Washington State Public Works Board with a summary of the terms and conditions as follows; Loan Amount: $800,000 Term 20 Years Interest Rate 0.94% Loan Reimbursement Start Date 8/6/2021 Time of Performance 60-months Unused Loan Amount Penalty None Relationship to Comprehensive Plan: Chapter 7 — Utilities. Recommendation: Staff recommends that the City Council adopt Ordinance No. 041-21, thereby approving and ratifying the Mayor's execution of Contract No. C090-21 (PWB Contract No. PC22-96103-040) with the Washington State Public Works Board for the Sewer Lift Station Controls Upgrades Project in the loan amount of $800,000. Motion for Consideration: I move to adopt Ordinance No. 041-21, thereby approving and ratifying the Mayor's execution of Contract No. C090-21 with the Washington State Public Works Board for the Sewer Lift Station Controls Upgrades Project in the loan amount of $800,000. Fiscal Impact: Debt service for PWB Emergency Loan. Alternative: Refuse Loan. Attachment: Ordinance No. 041-21, PWB Contract No. PC22-96103-040, and PWB Award Letter (dated 9/9/2021). Page 166 of 298 Back to Agenda ORDINANCE NO. 041-21 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ACCEPTING THE TERMS AND CONDITIONS FOR CONTRACT NO. C090-21 WITH THE WASHINGTON STATE PUBLIC WORKS BOARD TRADITIONAL FUND LOAN PROGRAM FOR THE SEWER LIFT STATION CONTROLS UPGRADES PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, on September 9, 2021, the City of Port Orchard Public Works Department was officially notified by Washington State Department of Commerce that the City was successful in obtaining a $800K Loan award through the Washington State Public Works Board Traditional Fund Loan Program for the Sewer Lift Station Controls Upgrades Project; and WHEREAS, on, October 5, 2021, the City received fully executed PWB Contract No. PC22-96103-040 from the Washington State Public Works Board for the loan, attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the Port Orchard City Council has determined it to be in the best interest of the City to enter into Contract No. C090-21 with the Public Works Board and accept the loan on the terms and conditions stated therein for the Sewer Lift Station Controls Upgrades Project; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby approves of and ratifies the Mayor's execution of Contract No. C090-21 with the Washington State Public Works Board for the Sewer Lift Station Controls Upgrades Project, inclusive of the terms and conditions of Public Works Board Traditional Fund Loan Contract No. PC22-96103-040. 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. Page 167 of 298 Back to Agenda Ordinance No. 041-21 Page 2 of 2 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 12t" day of October 2021. ATTEST: Robert Putaansuu, Mayor SPONSOR: Brandy Rinearson, MMC, City Clerk Cindy Lucarelli, Councilmember APPROVED AS TO FORM: Charlotte Archer, City Attorney PUBLISHED: EFFECTIVE DATE: Page 168 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda CONTRACT FACE SHEET Contract Number: PC22-96103-040 PUBLIC WORKS BOARD CONSTRUCTION LOAN CONTRACT 1. Contractor 2. Contractor Doing Business As (optional) City of Port Orchard N/A 214 Prospect St Port Orchard, WA 98366 3. Contractor Representative 4. Public Works Board Representative N/A N/A 5. Contract Amount 6. Funding Source 7. Contract Start 8. Contract End Date Date $800,000 Federal: ❑ State: 0 Other: ❑ Contract Execution June 1, 2041 N/A: ❑ Date 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10. Tax ID # 11. SWV # 12. UBI # 13. DUNS # 0025665-00 182-000-005 14. Contract Purpose Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction, replacement, rehabilitation, or improvement of streets, roads, bridges, drinking water systems, stormwater systems, sanitary sewage systems, or solid waste facilities, including recycling facilities. The BOARD, defined as the Washington State Public Works Board and Contractor acknowledge and accept the terms of this Contract and attachments and have executed this Contract on the date below to start as of the date and year last written below. The rights and obligations of both parties to this Contract are governed by this Contract and the following other documents that are incorporated by reference: Contract Terms and Conditions including Declarations Page; and Attachment I: Attorney's Certification. FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD uSigned by: DocuSigned by: U�% �1A1 AlU/l iltilA Lr 7 ! . .. a JV84A6BDAhow, Public Works Board Chair Signatu e7 `E Robert Putaansun P)gf4/2021 1 4:41 PM PDT Print Name Mayor APPROVED AS TO FORM ONLY Title September 22, 2021 Dawn C. Cortez Assistant Attorney General OW412021 1 10: 28 AM PDT Page 169 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Page 17� of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda CLIENT INFORMATION Legal Name: Loan Number: PROJECT INFORMATION Project Title: Project City: Project State: Project Zip Code: LOAN INFORMATION Loan Amount: Total Estimated Cost: Total Estimated Project Funding: Loan Forgiveness % (if applicable): Loan Term: Interest Rate: Payment Month: Loan Reimbursement Start Date: Time of Performance DECLARATIONS City of Port Orchard PC22-96103-040 Sewer Lift Stations Port Orchard Washington 98366 $800,000.00 $800,000.00 $800,000.00 0% 20 0.94% June 1st August 6, 2021 60 months from Execution Date of this Contract to Project Completion. SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT N/A LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT Revenue Obligation: This loan is a revenue obligation of the CONTRACTOR payable solely from the net revenue of the Sanitary Sewer (Wastewater) system. Payments shall be made from the net revenue of the utility after the payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility having a lien on that net revenue. As used here, "net revenue" means gross revenue minus expenses of maintenance and operations. The BOARD grants the CONTRACTOR the right to issue future bonds and notes that constitute a lien and charge on net revenue superior to the lien and charge of this loan agreement. SCOPE OF WORK The Sewer Lift Station Rehabilitation project upgrades control panels at six lift stations and installs a generator at one lift station. The project costs may include but are not limited to: engineering, cultural and historical resources, environmental documentation, review, permits, public involvement, bid documents and construction. The project needs to meet all applicable Local, State, and/or Federal standards. Page 1731 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Page 172 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda TABLE OF CONTENTS CONTRACT TERMS AND CONDITIONS................................................................................. 1 Part 1. SPECIAL TERMS AND CONDITIONS........................................................................ 1 1.1 Definitions.............................................................................................................................1 1.2 Authority................................................................................................................................1 1.3 Purpose.................................................................................................................................1 1.4 Order of Precedence............................................................................................................1 1.5 5- year deferral for start-up systems..................................................................................2 1.6 Competitive Bidding Requirements...................................................................................2 1.7 Default in Repayment...........................................................................................................2 1.8 Investment Grade Audit.......................................................................................................2 1.9 Sub -Contractor Data Collection..........................................................................................2 1.10 Eligible Project Costs...........................................................................................................2 1.11 Historical and Cultural Resources......................................................................................3 1.12 Performance Incentives.......................................................................................................3 1.13 Project Completion Amendment and Certified Project Completion Report...................4 1.14 Project Signs.........................................................................................................................4 1.15 Rate Loan Forgiveness and Term of Loan.........................................................................5 1.16 Recapture..............................................................................................................................5 1.17 Reimbursement Procedures and Payment........................................................................5 1.18 Repayment............................................................................................................................6 1.19 Reports..................................................................................................................................7 1.20 Termination for Cause.........................................................................................................7 1.21 Termination for Convenience..............................................................................................7 1.22 Time of Performance............................................................................................................7 1.23 Contract Suspension...........................................................................................................7 1.24 Special Conditions...............................................................................................................8 1.25 Loan Security........................................................................................................................8 Part 2. GENERAL TERMS AND CONDITIONS...................................................................... 9 2.1 DEFINITIONS..........................................................................................................................9 2.2 Allowable Costs.....................................................................................................................9 2.3 ALL WRITINGS CONTAINED HEREIN.................................................................................9 2.4 AMENDMENTS.......................................................................................................................9 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35................................................................................. 2.6 APPROVAL......................................................................................................................... 2.7 ASSIGNMENT..................................................................................................................... 2.8 ATTORNEYS' FEES........................................................................................................... 2.09 CODE REQUIREMENTS................................................................................................... 2.10 CON FIDENTIALITYISAFEGUARDING OF INFORMATION ............................................ 2.11 CONFORMANCE............................................................................................................... 2.12 CONFLICT OF INTEREST................................................................................................. 2.13 COPYRIGHT PROVISIONS............................................................................................... 2.14 DISALLOWED COSTS...................................................................................................... 2.15 DISPUTES.......................................................................................................................... 2.16 DUPLICATE PAYMENT.................................................................................................... 2.17 GOVERNING LAW AND VENUE...................................................................................... 2.18 INDEMNIFICATION........................................................................................................... 2.19 INDEPENDENT CAPACITY OF THE CONTRACTOR..................................................... 2.20 INDUSTRIAL INSURANCE COVERAGE.......................................................................... 2.21 LAWS................................................................................................................................. ..9 ..9 10 10 10 10 10 11 11 11 12 12 12 12 13 13 13 Page 173 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 2.22 LICENSING, ACCREDITATION AND REGISTRATION.................................................... 13 2.23 LIMITATION OF AUTHORITY............................................................................................ 13 2.24 Local Public Transportation Coordination..................................................................... 13 2.25 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ............................................... 13 2.26 PAY EQUITY....................................................................................................................... 13 2.27 POLITICAL ACTIVITIES..................................................................................................... 14 2.28 PREVAILING WAGE LAW................................................................................................. 14 2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION .............................. 14 2.30 PUBLICITY..........................................................................................................................14 2.31 RECAPTURE...................................................................................................................... 14 2.32 RECORDS MAINTENANCE............................................................................................... 15 2.33 REGISTRATION WITH DEPARTMENT OF REVENUE .................................................... 15 2.34 RIGHT OF INSPECTION.................................................................................................... 15 2.35 SAVINGS............................................................................................................................ 15 2.36 SEVERABILITY.................................................................................................................. 15 2.37 SUBCONTRACTING.......................................................................................................... 15 2.38 SURVIVAL.......................................................................................................................... 16 2.39 TAXES.................................................................................................................................16 2.40 TERMINATION FOR CAUSE............................................................................................. 16 2.41 TERMINATION FOR CONVENIENCE............................................................................... 16 2.42 TERMINATION PROCEDURES......................................................................................... 16 2.43 TREATMENT OF ASSETS................................................................................................. 17 2.44 WAIVER.............................................................................................................................. 17 Page 174 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda CONTRACT TERMS AND CONDITIONS PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM Part 1. SPECIAL TERMS AND CONDITIONS 1.1 Definitions As used throughout this Construction Loan Contract the following terms shall have the meaning set forth below: A. "Contract" shall mean this Construction Loan Contract. B. "Contractor" shall mean the local government identified on the Contract Face Sheet performing service(s) under this Contract and who is a Party to the Contract, and shall include all employees and agents of the Contractor. C. "The BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and who is a Party to the Contract. D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions as stated on the Declarations Page of this Loan Contract, displayed within the Contract in THIS STYLE for easier identification. 1.2 Authority Acting under the authority of Chapter 43.155 RCW, the BOARD has awarded the Contractor a Public Works Board construction loan for an approved public works project. 1.3 Purpose The BOARD and the Contractor have entered into this Contract to undertake a local public works project that furthers the goals and objectives of the Washington State Public Works Program. The project will be undertaken by the Contractor and will include the activities described in the SCOPE OF WORK shown on the Declarations page. The project must be undertaken in accordance with the loan terms and conditions, and all applicable federal, state and local laws and ordinances, which are incorporated by reference. 1.4 Order of Precedence In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the following order: A. Applicable federal and state of Washington statutes and regulations. B. Special Terms and Conditions including attachments. C. General Terms and Conditions. 1 Page 175 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 1.5 5- year deferral for start-up systems If the project financed by this Contract is to develop a system to deliver previously unavailable services, and revenue from those services is to repay the loan, the new system is eligible for a deferral of loan payments for sixty (60) months after the Contract execution date. The Contractor may provide a written request to the BOARD requesting a 5-year deferral for an eligible system. The BOARD may approve the deferral request. Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is due June 1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of the 7th year of the loan term. 1.6 Competitive Biddinq Requirements The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding requirements for projects assisted in whole or in part with money from the Public Works Program. 1.7 Default in Repayment Loan repayments shall be made on the loan in accordance with Section 1.18 of this Contract. A payment not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall be assessed a monthly penalty beginning on the first (1st) day past the due date. The penalty will be assessed on the entire payment amount. The penalty will be one percent (1 %) per month or twelve percent (12%) per annum. The same penalty terms shall apply at project completion if the repayment of loan funds in excess of eligible costs are not repaid at the time of the Project Completion Amendment is submitted, as provided for in Section 1.13. The Contractor acknowledges and agrees to the BOARD's right, upon delinquency in the payment of any annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of such delinquency. The Contractor shall be responsible for all legal fees incurred by the BOARD in any action undertaken to enforce its rights under this section. 1.8 Investment Grade Audit For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other public works facility for which an investment grade audit is obtainable, Contractor must undertake an investment grade audit. Costs incurred as part of the investment grade audit are eligible project costs. 1.9 Sub -Contractor Data Collection Contractor will submit reports, in a form and format to be provided by the BOARD and at intervals as agreed by the parties, regarding work under this Contract performed by sub -contractors and the portion of the Contract funds expended for work performed by sub -contractors, including but not necessarily limited to minority -owned, women -owned, and veteran -owned business sub -contractors. "Sub -Contractors" shall mean sub -contractors of any tier. 1.10 Eligible Project Costs The Eligible project costs must consist of expenditures eligible under Washington Administrative Code (WAC) 399-30-030 and be related only to project activities described in the declared SCOPE OF WORK. 2 Page 176 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Eligible costs for reimbursement shall be construed to mean expenditures incurred and paid, or incurred and payable within thirty (30) days of the reimbursement request. Only costs that have been incurred on or after LOAN REIMBURSEMENT START DATE shown in the Declarations are eligible for reimbursement under this Contract. Eligible costs will be paid according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for projects assisted with Public Works Board loans. These terms supersede the terms in Section 2.2. Allowable Costs. 1.11 Historical and Cultural Resources Prior to commencing construction, Contractor shall complete the requirements of Governor's Executive Order 21-02, or, as an alternative to completion of Governor's Executive Order 21-02, Contractor shall complete Section 106 of the National Historic Preservation Act, as applicable. Contractor agrees that the Contractor is legally and financially responsible for compliance with all laws, regulations, and agreements related to the preservation of historical or cultural resources and agrees to indemnify, defend and hold harmless the BOARD and the State of Washington in relation to any claim related to such historical or cultural resources discovered, disturbed, or damaged as a result of the project funded by this Contract. In addition to the requirements set forth in this Contract, Contractor shall, in accordance with Governor's Executive Order 21-02, coordinate with the Washington State Department of Archaeology and Historic Preservation (DAHP), including any recommended consultation with any affected tribe(s), during project design and prior to construction to determine the existence of any tribal cultural resources affected by the proposed project funded by this Contract. Contractor agrees to avoid, minimize, or mitigate impacts to cultural resource as a continuing pre -requisite to receipt of funds under this Contract. The Contractor agrees that, unless the Contractor is proceeding under an approved historical and cultural monitoring plan or other memorandum of agreement, if historical or cultural resources are discovered during construction, the Contractor shall immediately stop work and notify the local historical preservation officer and the state's historic preservation officer at DAHP. If human remains are uncovered, the Contractor shall report the presence and location of the remains to the coroner and local enforcement immediately, then contact DAHP and the concerned tribe's cultural staff or committee. The Contractor shall require this provision to be contained in all sub -contracts for work or services related to the declared SCOPE OF WORK. In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW 27.44.040 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and, WAC 25-48 regarding Archaeological Excavation and Removal Permits. Completion of the Section 106 of the National Historic Preservation Act shall substitute for completion of Governor's Executive Order 21-02. In the event that the Contractor finds it necessary to amend the SCOPE OF WORK, the Contractor may be required to re -comply with Governor's Executive Order 21-02 or Section 106 of the National Historic Preservation Act. 1.12 Performance Incentives The Contractor shall complete the project no later than sixty (60) months after the date of Contract execution. 3 Page 177 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Should the Contractor submit the Certified Project Completion Report within forty-eight (48) months of the date of Contract execution, the Contractor may choose one of the two following incentives upon project completion: Option A: The repayment period will be increased by twenty-four (24) months, not to exceed the life of the asset, OR: Option B: The interest rate will be decreased by one -quarter of one percent (0.25%). Should the Contractor submit the Certified Project Completion Report within thirty-six (36) months of the date of Contract execution, the Contractor may choose one of the following two incentives upon project completion: Option C: The repayment period will be increased by sixty (60) months, not to exceed the life of the asset, OR; Option D: The interest rate will be decreased by up to one-half of one percent (0.50%). Once an option is selected, the Contract shall be modified to note the appropriate change and no further adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of the performance incentive chosen, at no point in time shall the minimum loan interest rate be less than 0.25%. The calculation of interest rate and term adjustments will apply to the remaining payments beginning from the date the Project Completion report is certified. 1.13 Project Completion Amendment and Certified Project Completion Report The Contractor shall complete a Certified Project Completion Report when all activities identified in the SCOPE OF WORK are complete. The BOARD will supply the Contractor with the Certified Project Completion Report form, which shall include: A. A certified statement that the project, as described in the declared SCOPE OF WORK, is complete and, if applicable, meets required standards. B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the project as described in the SCOPE OF WORK. C. Certification that all costs associated with the project have been incurred and have been accounted for. Costs are incurred when goods and services are received and/or Contract work is performed. D. A final voucher for the remaining eligible funds. E. Pictures of Completed Project. The Contractor will submit the Certified Project Completion Report together with the last Invoice Voucher for a sum not to exceed the balance of the loan amount. The final Invoice Voucher payment shall not occur prior to the completion of all project activities identified in the SCOPE OF WORK and the BOARD's receipt and acceptance of the Certified Project Completion Report. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, term, and interest rate. 1.14 Project Signs If the Contractor displays, during the period covered by this Contract, signs or markers identifying those agencies participating financially in the approved project, the sign or marker must identify the Washington State Public Works Board as a participant in the project. 4 Page 178 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 1.15 Rate Loan Forgiveness and Term of Loan The BOARD shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the Contract Face Sheet and declared on the Contract Declarations Page. The interest rate shall be the declared INTEREST RATE per annum on the outstanding principal balance. The amount of loan forgiveness (if applicable) shall be as stated on the attached Declarations Page, and identified therein as LOAN FORGIVENESS %. The length of the loan shall not exceed the declared LOAN TERM in years, with the final payment due by the CONTRACT END DATE as shown on the Contract Face Sheet. The loan forgiveness shall be applied at project completion and shall apply to the lesser of the loan amount or the actual eligible costs and that declared percent on any accrued interest. The percent of loan forgiveness and interest rate shall not be changed, regardless of the actual cost of the project and the Affordability Index at project completion. 1.16 Recapture The right of recapture under Section 2.31. Recapture shall exist for a period not to exceed six (6) years following Contract termination. In the event that the Board is required to institute legal proceedings to enforce the recapture provision, the BOARD shall be entitled to its costs, including attorney's fees. 1.17 Reimbursement Procedures and Payment If funding or appropriation is not available at the time the invoice is submitted, or when this Contract is executed, the issuance of warrants will be delayed or suspended until such time as funds or appropriation become available. Therefore, subject to the availability of funds, warrants shall be issued to the Contractor for reimbursement of allowable expenses incurred by the Contractor while undertaking and administering approved project activities in accordance with the declared SCOPE OF WORK. The BOARD shall reimburse the Contractor for eligible project expenditures up to the maximum loan amount under this Contract, as identified in Section 1.10. When requesting reimbursement for costs incurred, the Contractor shall submit all Invoice Vouchers and any required documentation electronically through the Department of Commerce's (COMMERCE) Contracts Management System (CMS), which is available through the Secure Access Washington (SAW) portal; referencing the SCOPE OF WORT( project activity performed, and any appropriate documentation such as bills, invoices, and receipts. If the Contractor has constraints preventing access to COMMERCE's online A-19 portal, a hard copy A-19 form may be provided by the BOARD Project Manager upon request. Requests for reimbursements for costs related to construction activities will not be accepted until the Contractor provides: • Proof of compliance with Governor's Executive Order 21-02 or Section 106 of the National Historic Preservation Act, as described in Section 1.11, and • Signed Public Works Board Notice of Contract Award and Notice to Proceed, which follows the formal award of a construction contract. The BOARD will pay the Contractor upon acceptance of the work performed and receipt of properly completed invoices. Invoices shall be submitted to the BOARD not more often than monthly. Payment shall be considered timely if made by the BOARD within thirty (30) calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Contractor. 5 Page 179 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda The BOARD may, at its sole discretion, terminate the Contract or withhold payments claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this Contract. No payments in advance or in anticipation of services or supplies to be provided under this Contract shall be made by the BOARD. BOARD shall not release the final five (5) percent of the total grant amount until acceptance by BOARD of project completion report. Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by another source for an eligible project cost, then the Contractor shall not be reimbursed by the BOARD for that cost. Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its subcontractors. In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At the time of project completion, the Contractor shall submit to the BOARD a Project Completion Amendment certifying the total actual project costs and local share. The final Public Works loan disbursement shall bring the total loan to the lesser of 100% of the eligible project costs or the total declared LOAN AMOUNT. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, and interest rate. In the event that the final costs identified in the Project Completion Amendment indicate that the Contractor has received Public Works Board monies in excess of 100.00% of eligible costs, all funds in excess of 100.00% shall be repaid to the Board by payment to the Department of Commerce, or its successor, together with the submission of the Project Completion Amendment. 1.18 Repayment Loan repayment installments are due on the day and month identified under the term: PAYMENT MONTH on the Declarations Page. Payments are due each year during the term of the loan beginning one year from the date of Contract execution. Interest only will be charged for this payment if a warrant is issued prior to this date. All subsequent payments shall consist of principal and accrued interest due on the specified PAYMENT MONTH date of each year during the remaining term of the loan. Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum based on a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest will begin to accrue from the date each warrant is issued to the Contractor. The final payment shall be on or before the CONTRACT END DATE shown on the Declarations page, of an amount sufficient to bring the loan balance to zero. In the event that the BOARD approves the Contractor's request for a deferral as outlined in Section 1.5, then the first loan repayment is due sixty (60) months after Contract execution. Interest accrues for the sixty (60) months after Contract execution. The accrued interest only will be charged for this payment if a warrant is issued prior to this date. Interest and principal payments are due on the declared PAYMENT MONTH date of each year during the remaining term of the loan. The Contractor has the right to repay the unpaid balance of the loan in full at any time or make accelerated payments without penalty. The Contractor will repay the loan in accordance with the preceding conditions through the use of a check, money order, or equivalent means made payable to the Washington State Department of Commerce, or its successor. 6 Page 180 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 1.19 Reports The Contractor shall furnish the BOARD with: A. Project Status Reports with each Invoice Voucher; B. Project Quarterly Reports (if no funds have been reimbursed in the quarter) and/or Quarterly Expenditures Report; C. Quarterly Projection Invoice Reports; D. Certified Project Completion Report at project completion (as described in Section 1.13); E. Pictures of various stages of the project, and F.Other reports as the BOARD may require. 1.20 Termination for Cause If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds only for those activities identified in the SCOPE OF WORK, the BOARD may terminate the Contract in whole or in part at any time. The BOARD shall notify the Contractor in writing of its determination to terminate, the reason for such termination, and the effective date of the termination. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.40 Termination for Cause. 1.21 Termination for Convenience The BOARD may terminate this Contract in the event that state funds are no longer available to the BOARD, or are not appropriated for the purpose of meeting the BOARD's obligations under this Contract. Termination will be effective when the BOARD sends written notice of termination to the Contractor. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.41 Termination for Convenience. 1.22 Time of Performance No later than sixty (60) months after the date of Contract execution the Contractor must reach project completion. Failure to meet Time of Performance shall constitute default of this Contract. In the event of extenuating circumstances, the Contractor may request, in writing, that the BOARD extend the deadline for project completion. The BOARD may extend the deadline. The term of this Contract shall be for the entire term of the loan, regardless of actual project completion, unless terminated sooner as provided herein. 1.23 Contract Suspension In the event that the Washington State Legislature fails to pass and the Governor does not authorize a Capital Budget by June 30 of each biennium, the Washington State Constitution Article 8 and RCW 43.88.130 and RCW 43.88.290 prohibit expenditures or commitments of state funds in the absence of appropriation. In such event, all work under this Contract will be suspended effective July 1. The Contractor shall immediately suspend work under this Contract and take all reasonable steps necessary to minimize the cost of performance directly attributable to such suspension until the suspension is cancelled. 7 Page 181 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda THE BOARD shall notify the Contractor immediately upon lifting of the Contract suspension. 1.24 Special Conditions If SPECIAL CONDITIONS are listed on the Contract Declarations Page then these conditions are herein incorporated as part of the terms and requirements of this Contract. 1.25 Loan Security Loan Security payments shall be made as stated on the attached Declarations Page, and identified therein as LOAN SECURITY. 8 Page 182 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Part 2. GENERAL TERMS AND CONDITIONS 2.1 DEFINITIONS DocuSigned by: As used throughout this Contract, th forl4�r ;firms shall have the meaning set forth below: A. "Authorized Representative' s� �P4i 99H the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. B. "COMMERCE" shall mean the Department of Commerce. C. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this Contract, and shall include all employees and agents of the Contractor. D. "BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and which is a Party to the Contract E. "Personal Information" shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. F. "State" shall mean the state of Washington. G. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or part of those services under this Contract under a separate contract with the Contractor. The terms "subcontractor" and "subcontractors" mean subcontractor(s) in any tier. 2.2 Allowable Costs Costs allowable under this Contract are actual expenditures according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. 2.3 ALL WRITINGS CONTAINED HEREIN This Contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. 2.4 AMENDMENTS This Contract may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35 The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. 2.6 APPROVAL This contract shall be subject to the written approval of the Board's Authorized Representative and shall not be binding until so approved. The contract may be altered, amended, or waived only by a written amendment executed by both parties. 9 Page 183 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 2.7 ASSIGNMENT Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the Contractor without prior written consent of the Board. 2.8 ATTORNEYS' FEES Unless expressly permitted under another provision of the Contract, in the event of litigation or other action brought to enforce Contract terms, each party agrees to bear its own attorney's fees and costs. 2.09 CODE REQUIREMENTS All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and federal building, mechanical, plumbing, fire, energy and barrier -free codes. Compliance with the Americans with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building Department. 2.10 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION A. "Confidential Information" as used in this section includes: 1. All material provided to the Contractor by the Board that is designated as "confidential" by the Board; 2. All material produced by the Contractor that is designated as "confidential" by the Board; and 3. All personal information in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of government services, addresses, telephone numbers, social security number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or disclosure of Confidential Information. The Contractor shall use Confidential Information solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information to any third party except with the prior written consent of the Board or as may be required by law. The Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto. Upon request, the Contractor shall provide the Board with its policies and procedures on confidentiality. The Board may require changes to such policies and procedures as they apply to this Contract whenever the Board reasonably determines that changes are necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time period specified by the Board. Upon request, the Contractor shall immediately return to the Board any Confidential Information that the Board reasonably determines has not been adequately protected by the Contractor against unauthorized disclosure. C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of any unauthorized use or disclosure of any confidential information, and shall take necessary steps to mitigate the harmful effects of such use or disclosure. 2.11 CONFORMANCE If any provision of this contract violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. 10 Page 184 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 2.12 CONFLICT OF INTEREST Notwithstanding any determination by the Executive Ethics Board or other tribunal, the BOARD may, in its sole discretion, by written notice to the CONTRACTOR terminate this contract if it is found after due notice and examination by the BOARD that there is a violation of the Ethics in Public Service Act, Chapters 42.52 RCW and 42.23 RCW; or any similar statute involving the CONTRACTOR in the procurement of, or performance under this contract. Specific restrictions apply to contracting with current or former state employees pursuant to chapter 42.52 of the Revised Code of Washington. The CONTRACTOR and their subcontractor(s) must identify any person employed in any capacity by the state of Washington that worked on the PUBLIC WORKS BOARD including but not limited to formulating or drafting the legislation, participating in loan procurement planning and execution, awarding loans, and monitoring loans, during the 24 month period preceding the start date of this Loan. Identify the individual by name, the agency previously or currently employed by, job title or position held, and separation date. If it is determined by BOARD that a conflict of interest exists, the CONTRACTOR may be disqualified from further consideration for the award of a Loan. In the event this contract is terminated as provided above, BOARD shall be entitled to pursue the same remedies against the CONTRACTOR as it could pursue in the event of a breach of the contract by the CONTRACTOR. The rights and remedies of BOARD provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which BOARD makes any determination under this clause shall be an issue and may be reviewed as provided in the "Disputes" clause of this contract. 2.13 COPYRIGHT PROVISIONS Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the author of such Materials. In the event the Materials are not considered "works for hire" under the U.S. Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials, including all intellectual property rights, moral rights, and rights of publicity to the Board effective from the moment of creation of such Materials. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the ability to transfer these rights. For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty -free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that the Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the Board. The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materials furnished under this Contract, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Contract. The Contractor shall provide the Board with prompt written notice of each notice or claim of infringement received by the Contractor with respect to any Materials delivered under this Contract. The Board shall have the right to modify or remove any restrictive markings placed upon the Materials by the Contractor. `Ai E ! 016%14 wel4v1 =1 OX91013 f - The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors. 11 Page 185 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 2.15 DISPUTES Except as otherwise provided in this Contract, when a dispute arises between the parties and it cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who may designate a neutral person to decide the dispute. The request for a dispute hearing must: • be in writing; • state the disputed issues; • state the relative positions of the parties; • state the Contractor's name, address, and Contract number; and • be mailed to the Chair and the other party's (respondent's) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's designee and the requestor within five (5) working days. The Chair or designee shall review the written statements and reply in writing to both parties within ten (10) working days. The Chair or designee may extend this period if necessary by notifying the parties. The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this Contract shall be construed to limit the parties' choice of a mutually acceptable alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above. 2.16 DUPLICATE PAYMENT The Contractor certifies that work to be performed under this contract does not duplicate any work to be charged against any other contract, subcontract, or other source. 2.17 GOVERNING LAW AND VENUE This Contract shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. 2.18 INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of Washington, BOARD, agencies of the state and all officials, agents and employees of the state, for, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. "Claim" as used in this contract, means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorney's fees, attributable for bodily injury, sickness, disease, or death, or injury to or the destruction of tangible property including loss of use resulting therefrom. The Contractor's obligation to indemnify, defend, and hold harmless shall not be eliminated by any actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers. The Contractor expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to the Contractor's or any subcontractor's performance or failure to perform the contract. Contractor's obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agents, agencies, employees and officials. The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the state and its agencies, officers, agents or employees. 12 Page 186 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda 2.19 INDEPENDENT CAPACITY OF THE CONTRACTOR The parties intend that an independent contractor relationship will be created by this Contract. The Contractor and its employees or agents performing under this Contract are not employees or agents of the state of Washington or the Board. The Contractor will not hold itself out as or claim to be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and control of the work will be solely with the Contractor. 2.20 INDUSTRIAL INSURANCE COVERAGE The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the Board may collect from the Contractor the full amount payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to collect from the Contractor. 2.21 LAWS The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of local and state and federal governments, as now or hereafter amended. 2.22 LICENSING, ACCREDITATION AND REGISTRATION The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements or standards necessary for the performance of this Contract. 2.23 LIMITATION OF AUTHORITY Only the Authorized Representative or Authorized Representative's designee by writing (designation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Contract. 2.24 Local Public Transportation Coordination Where applicable, Contractor shall participate in local public transportation forums and implement strategies designed to ensure access to services. 2.25 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS During the performance of this Contract, the Contractor shall comply with all federal, state, and local nondiscrimination laws, regulations and policies. In the event of the Contractor's non-compliance or refusal to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or terminated in whole or in part, and the Contractor may be declared ineligible for further contracts with the Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.26 PAY EQUITY The Contractor agrees to ensure that "similarly employed" individuals in its workforce are compensated as equals, consistent with the following: 13 Page 187 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda A. Employees are "similarly employed" if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed; B. Contractor may allow differentials in compensation for its workers if the differentials are based in good faith and on any of the following: 1. A seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. 2. A bona fide job -related factor or factors may include, but not be limited to, education, training, or experience that is: Consistent with business necessity; not based on or derived from a gender -based differential; and accounts for the entire differential. 3. A bona fide regional difference in compensation level must be: Consistent with business necessity; not based on or derived from a gender -based differential; and account for the entire differential. This Contract may be terminated by the BOARD, if the BOARD or the Department of Enterprise Services determines that the Contractor is not in compliance with this provision. 2.27 POLITICAL ACTIVITIES Political activity of Contractor employees and officers are limited by the State Campaign Finances and Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508. No funds may be used for working for or against ballot measures or for or against the candidacy of any person for public office. 2.28 PREVAILING WAGE LAW The Contractor certifies that all contractors and subcontractors performing work on the Project shall comply with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by this contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39.12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's review upon request. 2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION The funds provided under this Contract shall not be used in payment of any bonus or commission for the purpose of obtaining approval of the application for such funds or any other approval or concurrence under this Contract provided, however, that reasonable fees or bona fide technical consultant, managerial, or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project costs. 2.30 PUBLICITY The Contractor agrees not to publish or use any advertising or publicity materials in which the state of Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written consent of the Board. 2.31 RECAPTURE In the event that the Contractor fails to perform this contract in accordance with state laws, federal laws, and/or the provisions of this contract, the Board reserves the right to recapture funds in an amount to compensate the Board for the noncompliance in addition to any other remedies available at law or in equity. 14 Page 188 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Repayment by the Contractor of funds under this recapture provision shall occur within the time period specified by the Board. In the alternative, the Board may recapture such funds from payments due under this contract. 2.32 RECORDS MAINTENANCE The Contractor shall maintain all books, records, documents, data and other evidence relating to this Contract and performance of the services described herein, including but not limited to accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Contract. Contractor shall retain such records for a period of six years following the date of final payment. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been finally resolved. 2.33 REGISTRATION WITH DEPARTMENT OF REVENUE If required by law, the Contractor shall complete registration with the Washington State Department of Revenue. 2.34 RIGHT OF INSPECTION At no additional cost all records relating to the Contractor's performance under this Contract shall be subject at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and federal and state officials so authorized by law, in order to monitor and evaluate performance, compliance, and quality assurance under this Contract. The Contractor shall provide access to its facilities for this purpose. 2.35 SAVINGS In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Contract and prior to normal completion, the Board may terminate the Contract under the "Termination for Convenience" clause, without the ten business day notice requirement. In lieu of termination, the Contract may be amended to reflect the new funding limitations and conditions. 2.36 SEVERABILITY If any provision of this Contract or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect without the invalid provision, if such remainder conforms to the requirements of law and the fundamental purpose of this Contract and to this end the provisions of this Contract are declared to be severable. 2.37 SUBCONTRACTING The Contractor may only subcontract work contemplated under this Contract if it obtains the prior written approval of the Board. If the Board approves subcontracting, the Contractor shall maintain written procedures related to subcontracting, as well as copies of all subcontracts and records related to subcontracts. For cause, the Board in writing may: (a) require the Contractor to amend its subcontracting procedures as they relate to this Contract; (b) prohibit the Contractor from subcontracting with a particular person or entity; or (c) require the Contractor to rescind or amend a subcontract. Every subcontract shall bind the Subcontractor to follow all applicable terms of this Contract. The Contractor is responsible to the Board if the Subcontractor fails to comply with any applicable term or condition of this Contract. The Contractor shall appropriately monitor the activities of the Subcontractor to assure fiscal Page 18J of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda conditions of this Contract. In no event shall the existence of a subcontract operate to release or reduce the liability of the Contractor to the Board for any breach in the performance of the Contractor's duties. Every subcontract shall include a term that the Board and the State of Washington are not liable for claims or damages arising from a Subcontractor's performance of the subcontract. 2.38 SURVIVAL The terms, conditions, and warranties contained in this Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive. 2.39 TAXES All payments accrued on account of payroll taxes, unemployment contributions, the Contractor's income or gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole responsibility of the Contractor. 2.40 TERMINATION FOR CAUSE In the event BOARD determines the Contractor has failed to comply with the conditions of this contract in a timely manner, BOARD has the right to suspend or terminate this contract. Before suspending or terminating the contract, BOARD shall notify the Contractor in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days, the contract may be terminated or suspended. In the event of termination or suspension, the Contractor shall be liable for damages as authorized by law. BOARD reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Contractor from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the Contractor or a decision by BOARD to terminate the contract. A termination shall be deemed a "Termination for Convenience" if it is determined that the Contractor: (1) was not in default; or (2) failure to perform was outside of his or her control, fault or negligence. The rights and remedies of BOARD provided in this contract are not exclusive and are, in addition to any other rights and remedies, provided by law. 2.41 TERMINATION FOR CONVENIENCE Except as otherwise provided in this Contract the Board may, by ten (10) business days written notice, beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is so terminated, the Board shall be liable only for payment required under the terms of this Contract for services rendered or goods delivered prior to the effective date of termination. 2.42 TERMINATION PROCEDURES Upon termination of this contract, BOARD, in addition to any other rights provided in this contract. The rights and remedies of BOARD provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. After receipt of a notice of termination, and except as otherwise directed by the Authorized Representative, the Contractor shall: A. Stop work under the Contract on the date, and to the extent specified, in the notice; B. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the contract that is not terminated; Page 19� of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda C. Assign to the BOARD, in the manner, at the times, and to the extent directed by the Authorized Representative, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the BOARD has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; D. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Authorized Representative to the extent the Authorized Representative may require, which approval or ratification shall be final for all the purposes of this clause; E. Transfer title to the BOARD and deliver in the manner, at the times, and to the extent directed by the Authorized Representative any property which, if the contract had been completed, would have been required to be furnished to the BOARD; F. Complete performance of such part of the work as shall not have been terminated by the Authorized Representative; and G. Take such action as may be necessary, or as the Authorized Representative may direct, for the protection and preservation of the property related to this contract, which is in the possession of the Contractor and in which the BOARD has or may acquire an interest. 2.43 TREATMENT OF ASSETS Title to all property furnished by BOARD shall remain in BOARD. Title to all property furnished by the Contractor, for the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in the Contractor. 2.44 WAIVER Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such in writing and signed by Authorized Representative of the Board. 17 Page 191 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda Page 119 9 of 298 DocuSign Envelope ID: 33CFD129-DCCF-4360-BC4E-511B7C3DD9E0 Back to Agenda ATTACHMENT I: ATTORNEY'S CERTIFICATION PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM City of Port Orchard PC22-96103-040 I, , hereby certify: I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the City of Port Orchard (the Contractor); and I have also examined any and all documents and records which are pertinent to the Contract, including the application requesting this financial assistance. Based on the foregoing, it is my opinion that: 1. The Contractor is a public body, properly constituted and operating under the laws of the state of Washington, empowered to receive and expend federal, state and local funds, to contract with the state of Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their application. 2. The Contractor is empowered to accept the Public Works Board financial assistance and to provide for repayment of the loan as set forth in the Contract. 3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the above -described public facilities project or to enjoin the Contractor from repaying the loan extended by the Public Works Board with respect to such project. The Contractor is not a party to litigation which will materially affect its ability to repay such loan on the terms contained in the Contract. 4. Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable to the Contractor. �D�occuSSig�nnedd by:: War 1^ Signature o Attorney Charlotte Archer, Inslee Best Doezie & Ryder P.S. Name 10/5/2021 1 9:10 AM PDT Date Page 1931of 298 Back to Agenda DocuSign Certificate Of Completion Envelope Id: 33CFD129DCCF4360BC4E511B7C3DD9E0 Subject: Please DocuSign: Port_Orchard_PC22-96103-040.DOC Division: Local Government Program: Public Works Board ContractNumber: PC22-96103-040 Source Envelope: Document Pages: 25 Signatures: 4 Certificate Pages: 5 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) Record Tracking Status: Original 10/4/2021 8:02:14 AM Security Appliance Status: Connected Storage Appliance Status: Connected Signer Events Charlotte Archer carcher@insleebest.com Charlotte Archer Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2021 9:10:09 AM ID:c7f071c8-49df-4ae5-ac2c-99a1ccOa6b8a Robert Putaansuu rputaansuu@cityofportorchard.us Mayor Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2021 10:28:18 AM I D: 8927c5a4-be47-4624-874a-4601 a68a4201 Kathryn A Gardow pwbgardowk@gmail.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2021 4:40:42 PM ID:be666baf-d202-4be0-b2d3-a725956b6576 In Person Signer Events Holder: Jason Freeze jason.freeze@commerce.wa.gov Pool: StateLocal Pool: Washington State Department of Commerce Signature EDocuSigned by: 6,avle{ft. Qvcl uv F1B020A8F179422.. Signature Adoption: Pre -selected Style Using IP Address: 209.63.25.21 ED—Signed by: F69E88B5DOE74EF... Signature Adoption: Pre -selected Style Using IP Address: 152.44.129.230 Do -Signed by: 7245D4026B7D42E... Signature Adoption: Uploaded Signature Image Using IP Address: 97.113.32.103 Signature Status: Completed Envelope Originator: Jason Freeze 1011 Plum Street SE MS 42525 Olympia, WA 98504-2525 jason.freeze@commerce.wa.gov IP Address: 147.55.149.141 Location: DocuSign Location: DocuSign Timestamp Sent: 10/5/2021 8:37:40 AM Viewed: 10/5/2021 9:10:09 AM Signed: 10/5/2021 9:10:21 AM Sent: 10/5/2021 9:10:24 AM Viewed: 10/5/2021 10:28:18 AM Signed: 10/5/2021 10:28:32 AM Sent: 10/5/2021 10:28:36 AM Viewed: 10/5/2021 4:40:42 PM Signed: 10/5/2021 4:41:09 PM Timestamp Page 194 of 298 Back to Agenda Editor Delivery Events Status Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Jacki Brown jbrown@cityofportorchard.us I E1E � Security Level: Email, Account Authentication (None) Using IP Address: 152.44.129.230 Electronic Record and Signature Disclosure: Accepted: 10/5/2021 8:37:40 AM ID:1325da1c-c6e3-4ac4-8706-c4c38d639dec Carbon Copy Events Status Witness Events Signature Notary Events Signature Envelope Summary Events Status Envelope Sent Hashed/Encrypted Certified Delivered Security Checked Signing Complete Security Checked Completed Security Checked Payment Events Status Electronic Record and Signature Disclosure Timestamp Timestamp Timestamp Timestamp Sent: 10/4/2021 8:08:11 AM Viewed: 10/5/2021 8:37:40 AM Timestamp Timestamp Timestamp Timestamps 10/4/2021 8:08:11 AM 10/5/2021 4:40:42 PM 10/5/2021 4:41:09 PM 10/5/2021 4:41:09 PM Timestamps Page 195 of 298 Electronic Record and Signature Disclosure created on: 8/11/2020 4:44:12 PM Parties agreed to: Charlotte Archer, Robert Putaansuu, Kathryn A Gardow, Jacki Brown Back to Agenda ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, Washington State Department of Commerce (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check -box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.15 per -page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Page 196 of 298 Back to Agenda Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact Washington State Department of Commerce: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: docusign@commerce.wa.gov To advise Washington State Department of Commerce of your new email address To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at docusign@commerce.wa.gov and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address. If you created a DocuSign account, you may update it with your new email address through your account preferences. To request paper copies from Washington State Department of Commerce To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to docusign@commerce.wa.gov and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with Washington State Department of Commerce To inform us that you no longer wish to receive future notices and disclosures in electronic format you may: Page 197 of 298 Back to Agenda i. decline to sign a document from within your signing session, and on the subsequent page, select the check -box indicating you wish to withdraw your consent, or you may; ii. send us an email to docusign@commerce.wa.gov and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: hops://support.docusi n�guides/signer--uide- signing-system-requirements. Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check -box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. By selecting the check -box next to `I agree to use electronic records and signatures', you confirm that: You can access and read this Electronic Record and Signature Disclosure; and You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and Until or unless you notify Washington State Department of Commerce as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by Washington State Department of Commerce during the course of your relationship with Washington State Department of Commerce. Page 198 of 298 Back to Agenda Washington State Public Works Board Post Office Box 42525 Olympia, Washington 98504-2525 September 9, 2021 Jacki Brown City of Port Orchard 214 Prospect St Port Orchard, WA 98366 Dear Ms. Brown, Thank you for submitting a Public Works Board Construction Loan application for consideration by the Public Works Board (Board). Congratulations, your Sewer Lift Stations project has been awarded $800,000.00. The Board approved your construction application at their August 6, 2021 board meeting. The approval date is also the loan award date. Any eligible costs incurred from this date forward are reimbursable with the Construction loan fund. Our office just completed the underwriting for this project, and the loan interest rate is 0.94% with a loan term of 20-years. We plan on issuing the contract for signature in the next couple of weeks. Applicants awarded Public Works Board contracts will need to return an executed contract within six months of receipt. Failure to do so will result in withdrawal of the award. Once again, thank you for applying to the Public Works Board. Please feel free to contact your Project Manager, Jason Freeze (360) 725-3161, or email by at jason.freeze((_commerce.wa.gov if you have any questions. Sincerely, Connie Rivera PWB Program Director cc: Application File Administrative services provided by the Department of Commerce (360) 725-2744 Faxpwwkwo www.pwb.wa.gov Back to Agenda �_. City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Agenda Item No.: Business Item 7D Subject: Adoption of a Resolution Approving Amendment No. 3 to Contract No. Meeting Date: Prepared by: October 12, 2021 Nicholas Bond, DCD Director 066-20 with Rice Fergus Miller for Atty Routing No.: N/A Phase 1 of the South Kitsap Community Atty Review Date: N/A Events Center (SKCEC) Summary: On July 28, 2020, the Port Orchard City Council approved Contract No. C066-20 with Rice Fergus Miller (RFM) for professional services on the Phase 1 scope of work for the South Kitsap Community Events Center (SKCEC). Two amendments to the contract for additional services were previously approved, in July 2021 and September 2021. Amendment No. 1 was approved by the City Council for the City's requested site design of the off -site area that surrounds the SKCEC parcel at 619 Bay Street. Amendment No. 2 was approved administratively for $2,672 to do additional evaluation related to geotechnical work in the SR-166 right of way. The currently proposed Amendment No. 3 extends the scope of work in Amendment No. 1 to the area north of the future Kitsap Bank building, between Orchard Ave and Frederick Ave. This design will provide the City with a basis to estimate the costs of needed off -site improvements and infrastructure and determine how funds will be obtained to support their future construction. The work will also support a future grant funding request for the complete design and construction of roadway improvements along Bay Street between Cline and Frederick. This change order will require a mid -year budget amendment to support the additional expenditure. RFM and the City have prepared an increased scope of services and associated fee increases (see Attachments 1 and 2). The total fee increase associated with this change order #3 is $109,153.28, which brings the new total maximum contract amount to $722,768.28. Recommendation: Staff recommends the City Council approve a resolution authorizing the Mayor to execute Amendment No. 3 to Contract No. C066-20 with Rice Fergus Miller for the amount of $109,153.28, for a total amended contract amount of $722,768.28. Relationship to Comprehensive Plan: N/A Motion for Consideration: "I move to adopt a resolution authorizing the Mayor to execute Amendment No. 3 to Contract No. C066-20 with Rice Fergus Miller for the Phase 1 scope of work on the South Kitsap Community Events Center, in the amount of $109,1S3.28, for a total amended contract amount of $722,768.28." Fiscal Impact: Included in the 2021-2022 budget. Attachments: Resolution Amending Contract No. C066-20, RFM Change Order Proposal for Amendment No. 3, RFM Contract Amendment Authorization Sheet, and Amendment 3 to Contract No. C066-20. Page 200 of 298 Back to Agenda RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE THE THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH RICE FERGUS MILLER, INC. FOR THE PURPOSES OF EXPANDING THE SCOPE OF SERVICES FOR THE SOUTH KITSAP COMMUNITY EVENTS CENTER PROJECT. WHEREAS, the City has contracted with Rice Fergus Miller (RFM) since July of 2020 (Resolution No. 032-20) for professional services for the South Kitsap Community Event Center project (SKCEC); and WHEREAS, Amendment No. 1 to the contract with RFM (Contract No. C066-20) was executed on July 27, 2021 for additional professional services to include site design of the off -site area surrounding the SKCEC parcel, in order to estimate the costs of needed off -site improvements and infrastructure, and determine how funds will be obtained to support their future construction; and WHEREAS, Amendment No. 2 to the contract was executed on September 17, 2021 for professional services of a geotechnical engineer; and WHEREAS, the City desires to amend the scope of work included in Amendment No. 1 to include additional professional services for site design of the off -site area that surrounds the SKCEC parcel, in an expanded area north of the Kitsap Bank building between Orchard Avenue and Frederick Avenue; and WHEREAS, in order to include this work, the Agreement must be amended to expand the scope and increase the maximum price; and WHEREAS, Amendment No. 3 to the RFM Professional Services Agreement is attached hereto as Exhibit "1"; and WHEREAS, the City Council finds it in the public interest to authorize the Mayor to execute the Third Amendment to the RFM Professional Services Agreement in substantially the form that is attached to this Resolution as Exhibit "1"; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: THAT: The Mayor is hereby authorized to execute the Third Amendment to the Professional Services Agreement between the City of Port Orchard and Rice Fergus Miller, Inc. in substantially the form attached to this Resolution as Exhibit "1". Except as specifically amended by this Amendment No. 3, the underlying agreement with Rice Fergus Miller, Inc. shall remain fully in force and intact. Page 201 of 298 Back to Agenda Resolution No. Page 2 of 3 THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 121" day of October 2021. ATTEST: Brandy Rinearson, MMC, City Clerk Robert Putaansuu, Mayor Page 202 of 298 Back to Agenda Resolution No. Page 3of3 EXHIBIT "1" AMENDMENT #3 to the Consultant Service Agreement between City of Port Orchard and Rice Fergus Miller, Inc. Page 203 of 298 Back to Agenda RI275 Fifth St, suite 100 Bremerton. WA 98337 .NCIIITFCTLIRE INTERIORS oLAx NiNG Y12LAB 360-377-8773 rfmarch.com September 30, 2021 Nick Bond Development Director City of Port Orchard 216 Prospect St Port Orchard, WA 98366 Re: South Kitsap Community Events Center Amendment 03 Request - Additional Off -Site Development North of Kitsap Bank RFM Project: 2020002.00 Dear Nick, Rice Fergus Miller is pleased to present the following Letter of Proposal to provide professional architectural, civil, survey, and landscape site design services for the off -site area illustrated in the attached map dated 09.17.2021 and noted in red as "RFM PO Contract Amendment 3", North of Kitsap Bank Off -Site Design Scope". Project Description City of Port Orchard has requested a site design of the off -site zone that surrounds the South Kitsap Community Events Center parcel located at 619 Bay Street in downtown Port Orchard. This design will provide the city a basis for cost estimating and fundraising for future construction. This work is part of the City of Port Orchard's Downtown Subarea Plan. This Amendment 3 extends the area for the scope described in our contract Amendment 1. II. Scope of Services RFM and our consultants will provide a conceptual level site design for the outlined area in the attached map. RFM will also participate in meetings between the City of Port Orchard and its stakeholders for a coordinated overall Downtown Subarea Plan design effort. The following services are included: • Architectural Site Design & Project Management (RFM) • Survey & Civil Engineering Design (KPFF) • Streetscape Design & Transportation Planning (KPG) • Geotechnical Engineering (Krazan) Refer to attached detailed scope of work for KPFF, KPG and Krazan for additional information. Page 204 of 298 Back to Agenda South Kitsap Community Events Center Site Development Proposal September 30, 2021 III. Additional Services The following services, though they could be provided by RFM, are not included in our Scope of Basic Services and, if requested, will be billed as Additional Services. • Schematic Design Phase thru Construction Administration Phase • Additional Consultants not listed, including but not limited to: o Shoreline Mitigation & Design o Street Lighting Design 0 3rd Party Cost Estimating IV. Owner Responsibilities It is our understanding that City of Port Orchard will provide full information, including a program, setting forth its design objectives, constraints, and criteria; any available dimensioned drawings describing all existing improvements; and the services of other consultants when such services are deemed to be necessary. V. Schedule We understand that this work is expected to start as soon as the Purchase & Sale Agreement of the SKCEC site is completed, projected for fall 2021. vl. Compensation For the Scope of Services outlined above, compensation shall be as described below. • Fixed Fee for the following: o RFM (Architectural & Project Management) $27,400.00 o KPFF (Civil & Survey) $37,240.00 o KPG (Landscape & Transportation) $33,033.28 TOTAL Fixed Fee $97,673.28 • Hourly Not -To -Exceed for the following: o Krazan (Geotechnical Engineer) $11,480.00 • Plus, reimbursable expenses, plus any applicable tax. Consultant fees include RFM standard markup of 12%. Additional Services, when requested, will be billed on an hourly basis at our standard hourly rates, as listed in the attached Terms of Agreement, or as agreed to prior to commencement of the Additional Services. VII. Terms of Agreement Please provide an amendment to our South Kitsap Community Events Center contract upon accepting this proposal. 2 Page 205 of 298 Back to Agenda South Kitsap Community Events Center Site Development Proposal September 30, 2021 Vill. Summary Thank you for the opportunity to propose on your project. We look forward to discussing our proposal further and working with you. Please contact me if you have any questions. Sincerely, Rice Fergus Miller, Inc. Steven M. Rice, Principal Architect & LEED AP Attachments: KPFF Letter of Proposal KPG Letter of Proposal Krazan Letter of Proposal 210917 SKCEC Map - Off -Site Scope Delineation 3 Page 206 of 298 1601 Fifth Avenue. Suite 1600 Seattle, WA 98101 206.62LS822 kpff.com AGREEMENT FOR PROFESSIONAL SERVICES DATE: September 24, 2021 JOB NUMBER: 2000510 TASK NUMBER: CLIENT: Rice Fergus Miller Architects Back to Agenda I<Pff PROJECT NAME: South Kitsap Community Events Center Off -site Improvements Amendment #3 Parcel north of Kitsap Bank and Frederick Avenue LOCATION: Port Orchard, WA SCOPE OF SERVICES In support of the South Kitsap Community Events Center and the conceptual design of the off -site improvements per Figure 1, KPFF will provide survey, civil engineering, sea level rise planning services as described below for the requested Additional Service Request (ASR). CITY OF PORT ORCHARD RFM CONTRACT SCOPE DELINFATION MfergUSMILLER 09.17.2021 Figure 1: Identified zone of Off -site Improvements in red. KPFF. Inc. shall perform this work in conformance with the Terms and Conditions attached to and made a part of this contract, as shown on Page 5 of 5. Page 1 of 5 Page 207 of 298 Back to Agenda Survey 1. The survey efforts described in this ASR is in addition to the survey efforts documented in KPFF's proposal to RFM for "South Kitsap Community Events Center" dated January 27, 2021 and July 21, 2021. Additional survey efforts to capture the off -site improvements will supplement the SKCEC site and Amendment 2 scope survey. Scope will include the following for the areas identified in Figure 1. a. Perform research on existing records for boundary resolution. b. Perform control survey; survey will be on State Plane Coordinates NAD 83/11 and Vertical Datum of NAVD 88. c. Perform topographic field survey. d. Coordinate and perform utility locates. e. Calculate boundary and prepare boundary basemap. 2. Assumptions: a. KPFF survey crews will be allowed unrestricted access to the site during the course of the survey. b. A title report will be provided by the client. c. Survey efforts will be accomplished under a single mobilization d. Documentation will be in a single CAD file and PDF file, which each sub -project will be able to use as base maps for their respective efforts. e. Bathymetry for Zone 2 is not included at this time, but can be added in the future under an additional service request. 3. Deliverables a. Prepare one topographic basemap that will be in AutoCAD 2018 file format and PDF sheet set of the survey. Each sub -project will use this survey as basemap for their respective efforts. Civil Engineering 1. Frederick Avenue a. We anticipate the following efforts for the conceptual design by the project team: i. Survey (KPFF, refer to efforts above) ii. Preliminary and Conceptual Street Layout (Horizontal + Vertical, KPG & KPFF) iii. Streetscape (KPG & RFM, w. KPFF coordination) iv. Utilities (KPFF) V. Transportation Planning & Engineering (KPG) vi. Coordination with Kitsap Bank Project Team b. KPFF's civil engineering efforts will include the following: i. KPFF will coordinate with KPG on the preliminary street layout and will document the conceptual street layout along Frederick Avenue based on KPG's and Kitsap Bank's preliminary layout. We anticipate consideration of sidewalks, travel lanes, and planting. ii. KPFF will identify preliminary street elevations, which will inform FFE's for adjoining properties, in coordination with KPG iii. KPFF will coordinate with RFM and the City to determine sea level rise elevation assumptions that will inform Bay Street elevations and finished floor elevations. NOTE: KPFF, Inc. shall perform this work in conformance with the Terms and Conditions attached to and made a part of this contract, as shown on Page 5 of 5 Page 2of5 Page 208 of 298 Back to Agenda iv. Identify zones within the proposed street section for existing and proposed utilities a) This effort will include review of the City's previous planning efforts associated with Bay Street and the undergrounding of electrical distribution and services, which will be provided to the team for review. b) We anticipate 1 additional meeting with the City to get feedback on utility planning needs V. Support RFM and KPG for their streetscape and transportation planning efforts c. Deliverables i. Documenting Conceptual Street Layout (H+V) plan view, anticipate 2 sheets ii. Documenting the identified existing and proposed utility zones, anticipate 1 sheet and 1 representative section iii. Provide list identifying civil related items needing further coordination for next phase of design 2. Waterfront open space, north of Kitsap Bank Property a. For the portion of the shoreline DNR property located above the Mean Higher High Water Line, located to the north of the Kitsap Bank, and Orchard Avenue, we anticipate the following civil engineering efforts for the conceptual design i. Supporting RFM and KPG's efforts to develop the conceptual site plan ii. Coordination with the City, and the RFM conceptual program and design efforts to determine preliminary drainage mitigation requirements iii. Coordination with the pump station for grade relationships b. Deliverables i. Narrative documenting civil drainage considerations for conceptual site plan 3. Assumptions: a. Civil will advance design efforts once the topographic survey is ready. b. Civil will review the construction cost estimates that will be developed by others. c. Roadway profiles are not anticipated at this time, but can be added at a future date d. Utility design is not anticipated at this time, utility zones will be based on assumptions that provide approximate space allocations e. We will attend 4 coordination meetings with the project and City team SPECIAL CONDITIONS This scope of work is based on the June `21 Sub -Area Plan. These off -site improvements efforts will occur during the same schedule as the Bay Street Off -site Improvements, and schedule will last approximately 3 months from receipt of a notice to proceed. This scope also does not include any in -water work along the shoreline below the Mean Higher High Water Line (MHHWL). Any work below the MHHWL along the shoreline will be addressed in a future ASR. Technical coordination will be managed by the lead surveyor or engineer for each discipline. Contract matters will be managed by Andrew Bennett, PE. NOTE: KPFF, Inc. shall perform this work in conformance with the Terms and Conditions attached to and made a part of this contract, as shown on Page 5 of 5 Page 3of5 Page 209 of 298 Back to Agenda FEE We propose to provide the scope noted above for the following hourly, not to exceed, fees, which are in addition to the fees already authorized for the SK CEC schematic design efforts and Bay Street Improvements efforts. Survey Additional Topographic and Boundary Survey 8,800 Civil Engineering Frederick Avenue: $ 9,700 Waterfront Open Space $14,750 Civil Engineering Subtotal: $ 24,450 KPFF Off -site Improvements ASR Fee: $ 33,250 Offered By (KPFF, Inc.) Accepted by (Client) 1�9 ( i atu for Andrew Bennet (Signature) Jenifer Clapham, PE - on behalf of Andrew Bennet PE (Print Name/Title) (Print Name/Title) NOTE: KPFF, Inc. shall perform this work in conformance with the Terms and Conditions attached to and made a part of this contract, as shown on Page 5 of 5 Page 4of5 Page 210 of 298 Back to Agenda TERMS AND CONDITIONS 1q)ff KPFF, Inc. ("KPFF") shall perform the services outlined in this agreement pursuant to the stated fee arrangement. 1. Additional Services Should the Scope of Services change from those set forth in the Agreement for Professional Services, the fee for such additional services will be negotiated between Client and KPFF. 2. Limitation of Liability To the greatest extent allowed by law, the aggregate liability of KPFF for any and all injuries, claims, demands, losses, expenses or damages, of whatever kind, arising out of or in any way related to this Agreement or the services provided by KPFF on this project, shall be limited to $50,000 or the total fee received by KPFF pursuant to this Agreement, whichever is greater. Further, no officer, director, shareholder or employee of KPFF shall bear any personal liability to Client for any and all injuries, claims, demands, losses, expenses or damages, of whatever kind or character, arising out of or in any way related to this Agreement or the services provided by KPFF on this project. 3. Mediation All disputes between Client and KPFF arising out of or relating to this Agreement shall be submitted to nonbinding mediation prior to commencement of any other judicial proceeding. 4. Dispute Handling KPFF shall make no claim against Client without first providing Client with a written notice of damages and providing Client thirty (30) days to cure before an action is commenced. The Client shall make no claim either directly or in a third party claim, against KPFF unless the Client has first provided KPFF with a written certification executed by an independent professional currently practicing in the same discipline as KPFF and licensed in the state of the subject project. This certification shall a) contain the name and license number of the certifier; b) specify each and every act or omission that the certifier contends is a violation of the standard of care expected of a professional performing professional services under similar circumstances; and c) state in complete detail the basis for the certifier's opinion that each such act or omission constitutes such a violation. This certificate shall be provided to KPFF not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any judicial proceeding. 5. Suspension of Services If Client fails to make payments to KPFF in accordance with this Agreement, such failure shall provide KPFF the option to suspend performance of services under this Agreement upon seven (7) days written notice to Client. In the event of a suspension of services, KPFF shall have no liability for any delays or damages caused because of such suspension. Before resuming services, KPFF shall be paid all sums due prior to suspension and any expenses incurred by KPFF in the interruption and resumption of its services. KPFF's fees for the remaining services and time schedules shall be equitably adjusted. If any invoice is in dispute, Client shall pay under written protest to keep the project on schedule and resolve the payment dispute after substantial completion. 6. Termination This Agreement may be terminated by either party with seven (7) days written notice to the other in the event of a substantial failure of performance by the other party through no fault of the terminating party. If this Agreement is terminated, KPFF shall be paid for services performed to the termination notice date, including reimbursable expenses due. 7. Ownership of Documents The drawings, calculations and specifications are instruments of service and are, and shall remain, the property of KPFF, whether the project for which they are made is executed or not. They are not to be used on other projects or extensions to this project except by agreement in writing. 8. Contract Administration It is understood that KPFF will not provide design and construction review services relating to safety measures of any contractor or subcontractor on the project. Further, it is understood that KPFF will not provide any supervisory services relating to the construction for the project. Any opinions solicited from KPFF relating to any such review or supervisory services shall be considered only as general information and shall not be the basis for any claim against KPFF. 9. No Third Party Beneficiary Nothing in this Agreement shall create a contractual relationship with or a cause of action in favor of any third party against KPFF or Client. 10. No Assignments Neither party to this Agreement shall transfer, sublet or assign any rights under or interest in this Agreement (including but not limited to monies that are due or monies that may be due) without the prior written consent of the other party. 11. Payments KPFF will submit monthly invoices. Payment is due on the date of the invoice and becomes delinquent one month thereafter. A late charge will be added to delinquent amounts at the rate of one -and -one-half percent (1 '/2 %) for each one month of delinquency (or the maximum allowable by law, whichever is lower). NOTE: These Terms and Conditions are only valid if accompanied by KPFF's Agreement for Professional Services (along with any Attachments which may be referenced in the Agreement for Professional Services) shown on 1 of 5. Revised: November 11, 2013 Page 5 of 5 Page 211 of 298 Back to Agenda 61 Preliminary (10%) Design for SKCEC Off -site Area O, Bay Street, Port Street Plaza, Orchard Street Plaza and the Waterfront Pathway KPG Scope of Work — Amendment #3 9.27.21 Description The City is developing a Master Plan for the Downtown to identify improvements and support redevelopment. This Scope of Work is for a transportation analysis, preliminary layout (10% design) of Bay Street, Port Street Plaza, Orchard Street Plaza, the Waterfront Pathway (shown in orange) and the North of Kitsap Bank off -site area as shown (shown in red) on the Site Scope Delineation exhibit below, dated 09.17.21. The area in red includes a preliminary design for a pump station and associated elements and access/circulation designed by RH2. CITY OF PORT ORCHARD RFM CONTRACT SCOPE DELINEATION RICOJl IVANMILLER 09.17.2021 Purpose The purpose of the preliminary design is to provide a layout for preliminary site planning and engineering design, coordinate with WSDOT, set elevations for multiple proposed developments, and to illustrate how this will fulfill the City's downtown vision in relation to the proposed South Kitsap Community Events Center (SKCEC). Page 212 of 298 Back to Agenda Description of Preliminary (10%) Design This work is separated into the following tasks: • Survey and Basemapping (KPFF) • Preliminary Bay Street Layout (horizontal and vertical) (KPFF and KPG) • Bay Streetscape design (KPG and RFM) • Port Plaza site layout concept (KPG and RFM) • Port Plaza preliminary engineering (KPG and KPFF) • Orchard Plaza site layout concept (KPG and RFM) • Orchard Plaza preliminary engineering (KPG and KPFF) • Waterfront Pathway layout (KPG and RFM) • Utilities (KPFF) • Transportation Planning (KPG) KPG's services will include the following: 1. Transportation Planning: Multimodal review including bicycle facilities, transit, ADA and pedestrian facilities, turning movements and requirements for center turn lane or turn pocket lengths, access to parking garages, large truck vehicle access to parcels. 2. Preliminary Street Layout: Sidewalks, on -street parking, crosswalks, curb bulbs, travel lanes, channelization, and pavement treatments for raised roadway areas. 3. Streetscape Design: Layout of city standards, including street illumination, conceptual pavement layout, furnishings, crosswalks, street trees and landscaping. 4. Preliminary Site Design 10% concept site layout for the Port Plaza, Orchard Plaza, and Waterfront Pathway. 5. Presentation Graphics: Illustrative layouts to convey the proposed Preliminary Street Design, Plazas and Waterfront Pathway design, Transportation Planning and Streetscape placemaking elements, and an illustrative photosimulation/perspective to convey streetscape related to the SKCEC building. The graphics will also identify a vision and opportunities. 6. Reviewing City shoreline design requirements and standards, as it relates to impervious surface limitations and landscape planting requirements. Assumptions • KPG will use existing City standards for the Streetscape Layout, including street illumination. • The City will provide KPG the proposed development land uses and proposed new development square footage to support the transportation planning analysis. • Transportation planning analysis will be conducted using existing afternoon peak hour traffic volumes and will not include analysis or forecasts of future travel demand. • RFM/KPFF will provide a preliminary base street plan for the Bay Street layout with KPG coordination. • RFM will provide a preliminary base map for site design for the SKCEC "off -site areas", as shown in orange and red on the above exhibit, including pertinent adjacent improvements, for the conceptual design of Port Street Plaza, Orchard Street Plaza, the Waterfront Pathway and the North of Kitsap Bank site. • The Pump Station design on the North of Kitsap Bank site is already determined by RH2 and will not change during preliminary design. KPG will not provide alternative layouts. • RFM to provide previously developed layouts for the Waterfront Pathway. Page 213 of 298 Back to Agenda • KPG will coordinate with KPFF on the circulation within parking areas of the North of Kitsap Bank site. The KPG effort will not include the layout of the parking areas. • KPG will coordinate with KPFF and RFM on site design for the (2) plazas, Waterfront Pathway, and the North of Kitsap Bank site. • KPG will coordinate with KPFF on Preliminary Bay Street Layout. • KPG will coordinate with RFM for presentation graphics. • The KPG scope of work supports inherent management responsibilities, including client, project and internal coordination meetings. • The KPG transportation planning analysis will not include preparation of Intersection Control Evaluations (ICE) or other WSDOT documentation. Additionally, study will not include SEPA evaluation (TIAs) of proposed developments or signal warrant analysis at intersections. • The Waterfront Pathway design will not reflect shoreline analysis and potential mitigation. Shoreline analysis will be conducted by KPFF at a future phase, after which conceptual design along the shoreline may need to be modified. KPG Scope of Work Task 1 Project Coordination 1.1 The Estimated project duration is 6 months. KPG will prepare monthly progress reports for RFM identifying work completed in the previous month, work in progress, upcoming work elements, and reporting of any delays, problems, or additional information needs. These reports will be submitted with the invoices. 1.2 Prepare for and attend coordination meetings with the Design Team, City Staff, and other project Stakeholders, identified by RFM. Meetings will be held over virtual environment (estimate 12 meetings total). Task 1 Deliverables: ■ Monthly progress reports (6 months) ■ Presentation/Working Design materials (electronic copies provided to RFM) Task 2 Transportation Planning 2.1 Review Developer and City, plans and documents, provided by the City. 2.2 Evaluate existing conditions including traffic circulation patterns, crash history, transit routes, parking supply, pedestrian circulation and non -motorized facilities. Collect up to three 2-hour PM peak hour intersection counts, adjust counts to reflect pre -pandemic conditions, and develop a traffic operations model (Synchro 11) to evaluate PM peak hour intersection operations. 2.3 Evaluate land use by estimating trip generation using ITE Trip Generation (10th edition) data to develop with project conditions. Evaluate changes to circulation related to the closure of Oak Avenue for the pedestrian plaza, change of Frederick Avenue to two-way operations, and within the north of Kitsap Bank site. 2.4 Determine intersection channelization and turn lane lengths along corridor and identify cross section to show travel lanes, and pedestrian, parking and bicycle facilities. Page 214 of 298 Back to Agenda 2.5 Evaluate pedestrian crossing locations and treatments based on traffic volumes, sight distance, and expected pedestrian crossing volumes. 2.6 Prepare a brief technical memorandum along with graphics that summarizes the analysis and findings of the task. Task z Deliverables: ■ Draft Memo ■ Final Memo ■ Provide a list of items or issues that need to be resolved for final design. Task 3 Preliminary Bay Street Layout 3.1 Provide streetscape design for Bay Street, as shown in orange on the exhibit above, and review and coordination with KPFF. • Identify curb alignment, curbless areas and changes of pavement, crosswalks, bike facilities, driveways, channelization, and signing. Task 3 Deliverables: ■ Draft Street Plan Layout ■ Final Street Plan Layout ■ Provide a list of items or issues that need to be resolved for final design. Task 4 Preliminary Bay Street Streetscape Design 4.1 Review City design documents and confirm any outstanding questions with City. 4.2 Provide preliminary layout for street illumination per proposed City standards for Bay Street, as shown in orange on the exhibit above. 4.3 Provide preliminary site layout for pavement type, street trees, planting areas, site furnishings, and programming opportunities for Bay Street, as shown in orange on the exhibit above. 4.4 Provide presentation graphics including: • One (1) Illustrative layout to convey the proposed Preliminary Street Design, Transportation and Streetscape placemaking elements. • One (1) Illustrative photosimulation/perspective to convey streetscape related to the CEC building by RFM with coordination by KPG. Task 4 Deliverables ■ Draft Street Plan Layout with streetscape elements including conceptual street illumination, plantings, pavement type and scoring. ■ Final Street Plan Layout with streetscape elements including conceptual street illumination, plantings, pavement type and scoring. ■ Provide a list of items or issues that need to be resolved for final design. Page 215 of 298 Back to Agenda Task 5 SKCEC off -site areas Preliminary Design 5.1 Review City shoreline design requirements and standards specific to SKCEC off -site areas, including limitations for redevelopment and landscape planting requirements. 5.2 Provide preliminary (10%) Site Design for the Port and Orchard street plazas (2), the Waterfront Pathway, and the North of Kitsap Bank site. • One (1) Illustrative plan graphic including linework showing hardscape and planting areas, vehicular and pedestrian circulation, and urban design elements. • Supporting graphics showing the proposed materials and aesthetics of the preliminary design, including: o Perspective sketches (up to 2) o Urban Design and Planting material palette, with inspirational images Task 5 Deliverables: ■ Summary of shoreline design standards research and how it affects the site layout. ■ Draft Preliminary site design of the (2) plazas, the Waterfront Pathway, and the North of Kitsap Bank site for RFM review and project team coordination. ■ Final (10%) Preliminary site design illustrative site plan of (2) plazas, the Waterfront Pathway, and the North of Kitsap Bank. ■ Supporting graphics Page 216 of 298 Back to Agenda EXHIBIT B KPG CONSULTANT COST COMPUTATIONS Client: Rice Ferguson Miller SKCEC Off -site Preliminary (10%) Design KPG PROJECT NUMBER: 20040 Amendment #3 DATE: 9.29.21 $107,396.00 - $77,902.00 $29,494.00 Additional Off -Site Task No. Task Description Labor Hour Estimate Total Hours and Labor Fee Estimate by Task Principal Urban Design Manager Senior Proj Engineer Senior Transportation Planner Projectect Landscape Architect Senior Admin Engineering Technician CAD Technician Transportation Planner Office Admin Landscape Technician 262 186 171 159 135 107 100 107 104 92 95 Hours Fee Assume 6 months for Preliminary (10%) Design Task 1 Project Coordination 1.1 1 Project management and progress reports 12 12 24 $ 2,724.00 1.2 lCoordination meetings 20 6 12 60 98 $ 16,364.00 Task Total 20 6 0 12 72 0 0 0 0 12 0 122 $ 19,088.00 Task 2 Transportation Planning 2.1 Review developer and city plans and documents 4 8 12 $ 1,468.00 2.2 Evaluate existing conditions 12 20 32 $ 3,988.00 2.3 Analyze changes to circulation and traffic operations 8 24 32 $ 3,768.00 2.4 Determine intersection channelization and cross sections 12 12 24 $ 3,156.00 2.5 Evaluate pedestrian crossing locations 8 14 22 $ 2,728.00 2.6 Draft and Final Tech Memo 16 20 36 $ 4,624.00 Task Total 0 0 0 60 0 0 0 0 98 0 0 158 $ 19,732.00 Task 3 Preliminary Street Layout 3.1 Provide street design and coordinate with KPFF 8 2 4 24 8 46 $ 7,104.00 Task Total 8 2 0 4 24 0 0 0 0 0 8 46 $ 7,104.00 Task 4 Preliminary Streetscape Design 4.1 Review City documents 4 2 4 10 $ 1,104.00 4.2 Preliminary Illumination Layout 4 8 2 14 $ 1,698.00 4.3 Preliminary Site Layout 4 4 24 8 40 80 $ 9,688.00 4.4 Presentation graphics 2 2 8 40 52 $ 5,776.00 Task Total 6 6 4 0 36 0 8 10 0 2 84 156 $ 18,266.00 Task 5 SKCEC off -site areas Preliminary Design 5.1 City shoreline design standard review 2 3 8 13 $ 1,306.00 5.2 1 Preliminary (10%) Site Design 20 20 12 100 24 16 140 332 $ 41,900.00 Task Total 20 20 0 12 102 0 0 24 16 3 148 345 $ 43,206.00 Total Labor Hours and Feel 34 1 28 1 4 76 1 234 1 0 8 1 34 1 114 1 5 1 240 1 705 1 $ 107,396.00 Mileage at current IRS rate $ 500.00 Traffic Counts $ 760.00 Reproduction Allowance $ 500.00 Total Reimbursable Expense $ 1,760.00 Total Estimated Budget $ 110,916.00 Page 217 of 298 Back to Agenda --I<Y'aZXI &ASSOCIATES,INC. GEOTECHNICAL ENGINEERING • ENVIRONMENTAL ENGINEERING CONSTRUCTION TESTING & INSPECTION September 28, 2021 RICE FERGUS MILLER 275 Fifth Street, Suite 100, Bremerton WA 98337 Attn: Lorie Limson Cook, Architect Email: Llimsoncookkrfinarch.com Cell: 253-988-3702 KA Project No. 102-21024 Krazan Proposal Number: G21061 WAP RE: Change Order #2 Proposed Fill at Plazas and Bay Street Bay Street between Robert Geiger Street and Frederick Avenue Port Orchard, WA Dear Ms. Cook, It has come to our attention that the city of Port Orchard, WA wishes to extend the off -site schematic design to additional area around the Kitsap Bank site. Doing so will require further geotechnical investigation in the added area. Namely, we will need to conduct two (2) soil borings in the extended area. The soil borings would likely be advanced by a truck -mounted drilling rig. The soil borings would be advanced to a depth of approximately twenty (20) below the existing ground surface (bgs) or to refusal on sound bearing strata, whichever occurs first. Soil samples would be obtained from the borings at two and one half (2.5) to five (5) foot intervals with a split -spoon sampler using the Standard Penetration Test. Samples of the materials encountered in the geotechnical borings will be collected for appropriate laboratory testing to determine the engineering characteristics of the site soils. All field work will be performed under the supervision of a Krazan engineer or geologist. The soil borings will be logged in the field and subsurface samples will be collected, sealed in plastic bags, and transported to our laboratory for evaluation. An addendum letter will be prepared documenting our findings. We anticipate submitting our letter to you within 15 working days of the completion of our subsurface investigation. The fieldwork would commence as soon as possible upon receiving your authorization to proceed, upon obtaining utility clearances, and based on the availability of the subcontracted equipment The additional geotechnical services will exceed our current Consultant Services Agreement, dated July 30, 2021, and therefore will require an approval. A detailed breakdown of this change order is provided in the follow table. 1230 Finn Hill Road NW, Suite A • Poulsbo, WA 98370 • (360) 598-2126 • Fax (360) 598-2127 With Offices Sergi Me Wrn United States Back to Agenda KA Project No. 102-21024 September 28, 2021 Paee No. 2 If you have any questions regarding this change order, please do not hesitate to contact us at (360) 598- 2126. DESCRIPTION UNITS RATE COST RF 1 Original Contract (T&M) $29,980.00 Ame Field Engineer/Geologist 10 $95.00 $950.00 Project Engineer 10 $95.00 $950.00 Senior Geotech Engineer 4 $135.00 $540.00 Senior Field Geologist 2 $125.00 $250.00 Project Management 1 $105.00 $105.00 Project Admin 1 $55.00 $55.00 Moisture Content 8 $25.00 $200.00 Sieve Analysis 4 $125.00 $500.00 Atterberg Limits 2 $150.00 $300.00 Subcontractor: Drilling (8 hrs max) 1 $4,150.00 $4,150.00 Subcontractor: Traffic Control (8 hrs max) 1 $1,350.00 $1,350.00 Subcontractor: Private Locate (EM and GPR) 1 $900.00 $900.00 RFC CHANGE ORDER TOTAL: $10,250.00 Am, PREVIOUSLY SUBMITTED CHANGE ORDER TOTAL (CO #1): $1,850.00 RR REVISED PROJECT TOTAL: Am $42,080.00 Note: The above estimate is a time and materials -based cost, not -to -exceed without prior authorization. Due to the fluctuations in the subcontractor costs, the estimate is valid only for 30 days. Drill cuttings disposal is included for non -contaminated soils only. RICE FERGUS MILLER KRAZAN & ASSOCIATES, INC. Signature Date Signature Date Name Title Name Title IPO ndment 1 A PO =ndment 3 ✓1 PO endment 2 KrazapA,.fg%V!Ms, Inc. Offices Serving the Western United States Back to Ager RFM PENDING RH2 CONTRACT LIFTSTATION AT �, �.► -' ► 14AM • • -� - MEN - Robert-Gei -St 9e'r r r 1 _ �fit, rr '�_ • , �� voff .riin/+1 rn If c nano ■ K__lu Back to Agenda CITY OF PORT ORCHARD Authorization for Amendment No. 3 Date: October 12, 2021 Contractor: Rice Fergus Miller, Inc. South Kitsap Community Project: Events Center (SKCEC) Contract / Job # C066-20 The City has requested an expanded area for the site design of the off -site zone that surrounds the SKCEC parcel, at 619 Bay Street. The expanded scope of work includes the area north of the Kitsap Bank building, between Orchard Ave and Frederick Ave. Contract History Amount Sales Tax Total Date Appvd by Original Contract $400,000.00 $0.00 $400,000.00 Council Amendment 1 $210,943.00 $0.00 $210,943.00 Council Amendment 2 $2,672.00 $0.00 $2,672.00 DCD Director Amendment 3 $109,153.28 $0.00 $109,153.28 Council Total Contract $722,768.28 $0.00 $722,768.28 I have reviewed the Change Order information above and certify that to the best of my knowledge descriptions and costs are true and accurate. Contractor Approval Signature Printed Name & Title Mayor ROBERT PUTAANSUU Printed Name Change Orders that do not exceed 10%, with a maximum of $50,000, of either legally authorized budget limit or contract Approved: amount established by City Council can be approved by the Public Works Director. Change Orders that do not exceed 10%, with a maximum of Attest: $100,000, of either legally authorized budget limit or contract amount established by City Council are to be approved by the Mayor. Change Orders over $100,000 or exceed a total of 10% require Council Action. Mayor City Clerk Council Approval Date UAStaff Reports GS50-05A-13\2021\20211012\7D 04 RFM Contract Amendment 3 Cover Sheet. doc Page 221 of 298 Back to Agenda Amendment No. 3 to Contract No. C066-20 CITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT WITH RICE FERGUS MILLER, INC. THIS AMENDMENT to Contract No. C066-20 ("Amendment") is made effective as of the _ day of , 2021, by and between the City of Port Orchard ("City), a municipal corporation, organized under the laws of the State of Washington, and Rice Fergus Miller, Inc., a corporation organized under the laws of the State of Washington, located and doing business at 275 5t' Street #100, Bremerton, WA 98337 ("Consultant"). WHEREAS, on July 29, 2020, the City executed a Professional Services Agreement with Consultant, for the provision of the Phase I of the South Kitsap Community Events Center (SKCEC) project ("Underlying Agreement"); and WHEREAS, Section 2 ("Schedule of Work") of the Underlying Agreement provides that "the Consultant shall perform the services described in the Scope of Work in accordance with the tasks identified within Exhibit `B" and the terms of this Agreement", and WHEREAS, Section 4 ("Compensation") of the Underlying Agreement provides that "(c)ompensation for these services shall be a Lump Sum of $400,000.00", and WHEREAS, on July 27, 2021, the City and the Consultant executed Amendment No. 1 to the Underlying Agreement, which provides that "the Consultant shall perform additional professional services for site design of the off -site area that surrounds the SKCEC parcel, for additional maximum compensation of $210,943 and a total amended contract amount of $610,943", and WHEREAS, on September 17, 2021, the City and the Consultant executed Amendment No. 2 to the Underlying Agreement, which provides that the Consultant shall "provide professional services of a Geotechnical Engineer for analytical testing, result analysis and proper disposal of (drill cuttings)", and WHEREAS, the Consultant and the City have conferred and agreed to amend the scope of professional services to be performed and the compensation for these services; and WHEREAS, the parties wish to memorialize their agreement to so extend the Underlying Agreement; NOW, THEREFORE, In consideration of the mutual benefits accruing, it is agreed by and between the parties thereto as follows: 1. The Underlying Agreement of July 29, 2020 between the parties is amended as follows (amendment shown in legislative marks): • The Consultant shall perform additional professional services for site design of the off -site area that surrounds the SKCEC parcel, in an expanded area north of the Kitsap Bank building between Orchard Avenue and Frederick Avenue, for additional maximum compensation of Page 222 of 298 Back to Agenda $109,153.28 and a total amended contract amount of $722,768.28, as provided in Attachment 1 to this Amendment. 2. In all other respects, the Underlying Agreement between the parties shall remain in full force and effect, amended as set forth herein, but only as set forth herein. IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year set forth above. CITY OF PORT ORCHARD, Rice Fergus Miller, Inc. WASHINGTON Signature Robert Putaansuu, Mayor Printed Name and Title ATTEST/AUTHENTICATED: Brandy Rinearson, MMC, City Clerk APPROVED AS TO FORM: Charlotte A. Archer, City Attorney Attachment: RFM Change Order for Design of SKCEC Off -Site Development Page 223 of 298 Agenda Item No. Subject City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Business Item 7E Approval of a Contract with Avidex for Upgrading the Audio/Visual Capabilities in the Council Chambers Meeting Date Prepared by Back to Agenda October 12, 2021 Noah Crocker Finance Director Atty Routing No.: N/A Atty Review Date: N/A Summary: The audio/video equipment in the Council Chambers, at the beginning of the year, was over 10 years old and was not meeting the needs of the city. Early in the year, after identifying a vendor pursuant to the City's procurement policies, Staff engaged a vendor to assist in upgrading the video equipment. One assumption at the time this project was initiated was that the city would return to in -person meetings in 2021, and the project moved forward under that assumption. The project included the installation of new cameras, TV monitors and new video control system. At the completion of the aforementioned project, the city began a second project to upgrade the audio capabilities in the Council Chambers. This second project upgraded the audio processing equipment and provided new capabilities but fell short of the city's newly -arising needs in terms of handling virtual meeting environments (i.e. Zoom). As a workaround, the IT Department implemented a "Zoom cart" (TV monitor on mobile stand, camera and microphone) to enable Zoom meetings in the Council Chambers. While these projects were in process, the success of virtual City Council meetings became apparent and Council authorized a continued hybrid model of a combined on -premise / virtual meeting during the pendency of the emergency, to comply with the Governor's Proclamations. At the direction of the Mayor, the IT Department identified local audio/video vendors with existing State of Washington master contracts (through the Department of Enterprise Services (DES)) and solicited proposals for merging the on -premise audio/video capabilities in the Council Chambers with a virtual meeting environment. One identified vendor, Avidex, supplied a proposal consistent with the DES master contract, based upon an on -site visit and in-depth analysis of our current environment and needs. This proposal is attached and has been reviewed by the Finance Committee at their September 21St meeting. The Committee recommends the city should move forward with this project and proposal as presented. Recommendation: Staff recommends approving the Mayor to enter into an agreement with Avidex as proposed. Relationship to Comprehensive Plan: N/A Motion for consideration: "I move to authorize the Mayor to enter into an agreement with Avidex to upgrade the City Council Chambers video and audio equipment and services to provide for hybrid meetings." Page 224 of 298 Back to Agenda Fiscal Impact: To be included in the 2021 Mid -Biennial Modifications if approved. Est Contract Cost: $65,200 Est. Future Service Cost (3 Years)—$5,436 Alternatives: Do not approve and provide alternative guidance. Attachment: Contract. Staff Report 7E Page 2 of 2 Page 225 of 298 Back to Agenda MASTER CONTRACT No. 03418 AUDIO-VISUAL SOLUTIONS For Use by Eligible Purchasers By and Between STATE OF WASHINGTON DEPARTMENT OF ENTERPRISE SERVICES and AVIDEX INDUSTRIES, LLC Dated April 1, 2019 Page 226 of 298 Back to Agenda MASTER CONTRACT No. 03418 AUDIO-VISUAL SOLUTIONS This Master Contract ("Master Contract") is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency ("Enterprise Services") and Avidex Industries, LLC, a Washington limited liability company ("Contractor") (collectively the "Parties"), and is dated and effective as of April 1, 2019. RECITALS A. Pursuant to Legislative direction codified in RCW chapter 39.26, Enterprise Services, on behalf of the State of Washington, is authorized to develop, solicit, and establish master contracts for goods and services for general use by Washington state agencies and certain other entities (eligible purchasers). B. On behalf of the State of Washington, Enterprise Services, as part of a competitive governmental procurement, issued Request for Proposals No. 03418 dated December 7, 2018 regarding Audio -Visual Solutions. C. Enterprise Services evaluated all responses to the Request for Proposals and identified Contractor as an/the apparent successful bidder. D. Enterprise Services has determined that entering into this Master Contract will meet the identified needs and be in the best interest of the State of Washington. E. The purpose of this Master Contract is to enable eligible purchasers to purchase the goods and services as set forth herein. AGREEMENT NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the Parties hereto hereby agree as follows: 1. TERM. The term of this Master Contract is six (6) years. The six (6) year term shall commence April 1, 2019 and end on March 31, 2025. 2. ELIGIBLE PURCHASERS. This Master Contract may be utilized by any of the following types of entities ("Purchaser"): 2.1. WASHINGTON STATE AGENCIES. This Master Contract may be utilized by: (a) Washington state agencies, departments, offices, divisions, boards, and commission; and (b) Any the following institutions of higher education: state universities, regional universities, state college, community colleges, and technical colleges. 2.2. MCUA PARTIES. This Master Contract also may be utilized by any of the following types of entities that have executed a Master Contract Usage Agreement with Enterprise Services: (a) Political subdivisions (e.g., counties, cities, school districts, public utility districts); (b) Federal governmental agencies or entities; MASTER CONTRACT No. 03418 (Rev.4-24-2017) 7 Page 227 of 298 Back to Agenda (c) Public -benefit nonprofit corporations (i.e., § 501(c)(3) nonprofit corporations that receive federal, state, or local funding); and (d) Federally -recognized Indian Tribes located in the State of Washington. The Master Contract also will be available for use by the Oregon Cooperative Purchasing Program (ORCPP). 3. SCOPE —INCLUDED GOODS/SERVICES AND PRICE. 3.1. CONTRACT SCOPE. Pursuant to this Master Contract, Contractor is authorized to sell Audio - Visual hardware, accessories or required peripherals ("Equipment") and services, including maintenance, installation, audio-visual system management, and design for the prices set forth in Exhibit e — Price and Qualifications. Contractor shall not represent to any Purchaser under this Master Contract that Contractor has contractual authority to sell any goods or services beyond those set forth in this Master Contract. 3.2. STATERS ABILITY TO MODIFY SCOPE OF MASTER CONTRACT. Subject to mutual agreement between the Parties, Enterprise Services reserves the right to modify the Equipment and services included in this Master Contract; Provided, however, that any such modification shall be effective only upon thirty (30) days advance written notice; and Provided further, that any such modification must be within the scope of this Master Contract. 3.3. ECONOMIC ADJUSTMENT. Beginning thirty six (36) months after the effective date of this Master Contract Exhibit e labor rates not covered under Washington State Department of Labor & Industries prevailing wage as defined in section 6 of the Master Contract shall annually be adjusted, based upon the yearly percent change (whether up or down) in the Employment and Wages from Occupational Employment Statistics (OES) survey for Audio and Video Equipment Technicians (SOC code 274011) Washington state area hourly mean wage. All calculations for the index shall be based upon the latest version of data published as of March 1 each year. If an index is recoded, that is the replacement is a direct substitute according to the BLS, this Contract will instead use the recode. If an index becomes unavailable, Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available will be used. The economic adjustment shall be calculated as follows: New Price = Old Price x (Current Period Index/Base Period Index). 3.4. PRICE CEILING. Although Contractor may offer lower prices to Purchasers, during the term of this Master Contract (e.g. volume discount), Contractor guarantees to provide the Goods/Services at no greater than the prices set forth in Exhibit e — Price and Qualifications (subject to economic adjustment as set forth herein). 3.5. PUBLIC WORKS. This Master Contract is not a "Public Works" contract and will not meet the relevant statutory requirements for "Public Works" projects. 3.6. MASTER CONTRACT INFORMATION. Enterprise Services shall maintain and provide information regarding this Master Contract, including scope and pricing, to eligible Purchasers. This information may be accessible by the general public via Enterprise Services website or disclosed as part of a public information request. MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 228 of 298 Back to Agenda 4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Master Contract and at the time any order is placed pursuant to this Master Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Enterprise Services, in writing, of such breach. 4.1. QUALIFIED TO Do BUSINESS. Contractor represents and warrants that it is in good standing and qualified to do business in the State of Washington, that it is registered with the Washington State Department of Revenue and the Washington Secretary of State, that it possesses and shall keep current all required licenses and/or approvals, and that it is current, in full compliance, and has paid all applicable taxes owed to the State of Washington. 4.2. EXECUTIVE ORDER 18-03 WORKERS' RIGHTS (MANDATORY INDIVIDUAL ARBITRATION). Contractor represents and warrants, as previously certified in Contractor's bid submission, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Master Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. 4.3. SUSPENSION & DEBARMENT. Contractor represents and warrants that neither it nor its principals or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States. 4.4. QUALITY OF EQUIPMENT OR SERVICES. Contractor represents and warrants that any Equipment and services sold pursuant to this Master Contract shall be merchantable, shall conform to this Master Contract and Purchaser's Purchase Order, shall be fit and safe for the intended purposes, shall be free from defects in materials and workmanship, and shall be produced and delivered in full compliance with applicable law. Contractor further represents and warrants it has clear title to the goods and that those goods or any services provided shall be delivered free of liens and encumbrances and that the same do not infringe any third party patent. Upon breach of warranty, Contractor will repair or replace (at no charge to Purchaser) any goods and services whose nonconformance is discovered and made known to the Contractor. If, in Purchaser's judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor will refund the full amount of any payments that have been made. The rights and remedies of the Parties under this warranty are in addition to any other rights and remedies of the Parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys' fees and costs. 4.5. EQUIPMENT WARRANTIES. Contractor represents and warrants that all Equipment and services with an active warranty purchased or provided under this Contract shall be governed under the Contractor warranty policy terms included in Exhibit C— Warranty Terms. 4.6. WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this Master Contract and the three (3) year period immediately preceding the award of the Master Contract, it is not determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW chapters 49.46, 49.48, or 49.52. MASTER CONTRACT No. 03418 4 (Rev.4-24-2017) Page 229 of 298 Back to Agenda 4.7. PAY EQUALITY. Contractor represents and warrants that, as required by Washington state law (Laws of 2017, Chap. 1, § 147), during the term of this Master Contract for the time period of July 1, 2017 through June 30, 2019, it agrees to equality among its workers by ensuring similarly employed individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed. Contractor may allow differentials in compensation for its workers based in good faith on any of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job -related factor or factors may include, but not be limited to, education, training, or experience, that is: consistent with business necessity; not based on or derived from a gender -based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender -based differential; and account for the entire differential. Notwithstanding any provision to the contrary, upon breach of warranty and Contractor's failure to provide satisfactory evidence of compliance within thirty (30) days, Enterprise Services may suspend or terminate this Master Contract and any Purchaser hereunder similarly may suspend or terminate its use of the Master Contract and/or any agreement entered into pursuant to the Master Contract. 4.8. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that it complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Purchasers' employees. 4.9. WASHINGTON'S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that it is registered in Washington's Electronic Business Solution (WEBS), Washington's contract registration system and that, all of its information therein is current and accurate and that throughout the term of this Master Contract, Contractor shall maintain an accurate profile in WEBS. 4.10. STATEWIDE PAYEE DESK. Contractor represents and warrants that it is registered with the Statewide Payee Desk, which registration is a condition to payment. 4.11. MASTER CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that it shall use commercially reasonable efforts both to promote and market the use of this Master Contract with eligible Purchasers and to ensure that those entities that utilize this Master Contract are eligible Purchasers. Contractor understands and acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor's Equipment and services or suggesting that such Equipment and services are the best or only solution to their needs. Accordingly, Contractor represents and warrants that it shall make no reference to Enterprise Services, any Purchaser, or the State of Washington in any promotional material without the prior written consent of Enterprise Services. 4.12. MASTER CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Master Contract or a similar contract, is transitioned to another contractor (e.g., Master Contract expiration or termination), Contractor shall use commercially reasonable efforts to MASTER CONTRACT No. 03418 5 (Rev.4-24-2017) Page 230 of 298 Back to Agenda assist Enterprise Services for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington. S. CONTRACTOR RESPONSIBILITIES. 5.1. SERVICE AND MAINTENANCE SUPPORT. All warranty or maintenance services to be performed on any Equipment or software purchased under the Contract shall be performed by manufacturer certified technicians properly trained and/or authorized to perform such services. 5.2. LOANER EQUIPMENT. Loaner Equipment will be provided at no charge during any repairs required by Equipment or hardware purchased under the contract during the first year of use and during any extended warranty period, unless Customer declines the use of loaner Equipment. Loaner Equipment does not have to be the same model, but must perform the same functions as the Equipment being repaired. The Contractor shall be responsible for any shipping and delivery charges associated with providing Equipment loaners. 5.3. EXCESSIVE SERVICE AND DOWNTIME. Equipment that develops a trend of requiring an excessive number of service calls or repairs shall be reported by the Purchaser to the Contractor. Purchaser shall have the option to have individual Equipment items replaced at no additional cost if more than three (3) warranty service calls occur within six (6) months of delivery date of new or replaced equipment. Replaced equipment will be new and shall meet all applicable manufacturer specifications. 6. PREVAILING WAGE. 6.1. PREVAILING WAGE COMPLIANCE. This Contract is subject to Washington's Prevailing Wage on Public Works Act (RCW 39.12). Accordingly, for work pursuant to this Contract, Contractor unless exempt, shall pay all workers employed in the performance of any part of the work in accordance with RCW 39.12 and the rules promulgated by the Washington State Department of Labor and Industries. 6.2. WAGE RATES. Contractor, or any other person doing any portion of the work covered by this Contract, shall not pay any laborer, worker, or mechanic less than the applicable and most current prevailing hourly wage rates and fringe benefits for said worker's classification to all laborers workers or mechanics who perform any work pursuant to any resulting contract, in conformance with the scope or work description of the Industrial Statistician of the Washington State Department of Labor and Industries. Contractor shall have sole responsibility to ascertain the applicable prevailing rate of wage for such classification, as set forth by the State of Washington for the County in which the work is performed. The applicable prevailing wage rates are set forth on the website for the Washington State Department of Labor and Industries. Prevailing wage rates are updated twice a year, on the first business day in February and August, and take effect thirty (30) days after publication. 6.3. STATEMENT OF INTENT TO PAY PREVAILING WAGES. Before commencing any work under this Contract, Contractor (and all subcontractors) shall file with the Washington State Department of Labor and Industries, for approval, a statement, under oath, certifying its Intent to Pay Prevailing Wages. Contractor also shall provide a copy of the Intent to Pay Prevailing Wages to the Purchaser. MASTER CONTRACT No. 03418 6 (Rev.4-24-2017) Page 231 of 298 Back to Agenda 6.4. INVOICES & CONTRACT PAYMENTS. Contractor understands and agrees that each invoice for payment submitted to Enterprise Services shall state that prevailing wages have been paid in accordance with the pre -filed Statement(s) of Intent, as approved. Copies of the Intent to Pay Prevailing Wages shall be posted on the work site with the address and telephone number of the Industrial Statistician of the Washington State Department of Labor and Industries where a complaint or inquiry regarding prevailing wages may be made. 6.5. AFFIDAVIT OF WAGES PAID. Upon completion of the work under this Contract, Contractor (and each subcontractor) shall file with the Washington State Department of Labor and Industries the approved Affidavit of Wages Paid. Enterprise Services shall condition final payment to Contractor on the submittal of such Affidavit of Wages Paid. 6.6. LABOR & INDUSTRIES FEES. Contractor shall pay to the Washington State Department of Labor and Industries any applicable fees for the Statement of Intent and/or Affidavit of Wages Paid that are to be submitted to the Washington State Department of Labor and Industries for certification. 6.7. PAYROLL RECORDS. Contractor shall retain payroll records pertaining to work performed for this Contract for three (3) years following expiration or termination of this Contract and, upon request, provide certified copies of such payroll records to Enterprise Services. 7. SECURITY. 7.1. SECURITY COMPLIANCE. Contractor Is responsible for establishing an information security program and maintaining physical, technical, administrative, and organizational safeguards that comply with applicable industry standards and guidelines. Contractor shall materially comply with Washington Office of the Chief Information Officer (OCIO) statewide information technology policies 141.10—Securing Information Technology Assets Standards and 188 - Accessibility, as applicable, for Purchaser and for Contractor's products implemented by Purchaser. Such policies are located on the OCIO website at: https://ocio.wa.gov//policies. 7.2. DATA OWNERSHIP. Purchaser's data collected, used, processed, stored, or generate as the result of the use of the services ("Data") is and shall remain the sole and exclusive property of the Purchaser and all right, title, and interest in the same is reserved by the Purchaser. Contractor shall: (a) keep and maintain Data in strict confidence and as further described in this Master Contract and applicable laws to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Data solely and exclusively for the purpose of providing the services under this Master Contract; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Data for Contractor's own purposes or for the benefit of anyone other than the Purchaser without Purchaser's prior written consent. 7.3. DATA BREACH. Contractor must have an incident response process that follows National Institute of Standards and Technology (NIST) standards and includes breach detection, breach notification and breach response. Upon discovery or reasonable belief of any access, destruction, loss, theft, use or disclosure of Purchaser's data by an unauthorized party ("Data Breach"), Contractor shall notify Purchaser by the fastest means available and also in writing. Contractor shall provide such notification within forty-eight (48) hours after Contractor reasonably believes there has been such a Data Breach. Contractor's notification shall identify: MASTER CONTRACT No. 03418 7 (Rev.4-24-2017) Page 232 of 298 Back to Agenda (a) The nature of the Data Breach; (b) The Data accessed, used or disclosed; (c) The person(s) who accessed, used, disclosed and/or received Data (if known); (d) What Contractor has done or will do to quarantine and mitigate the Data Breach; and (e) What corrective action Contractor has taken or will take to prevent future Data Breaches. Contractor shall quarantine the Data Breach, ensure secure access to Data, and restore Equipment and services as needed to comply with terms and conditions of this Master Contract. Contractor shall conduct an investigation of the Data Breach and shall share the report of the investigation with Purchaser. In the event of a Data Breach, Contractor agrees to comply with all applicable law, including but not limited to Revised Code of Washington (RCW) 19.255.010 and RCW 42.56.590. If a Data Breach occurs and is found to be the result of Contractor's acts, omissions or negligence, Contractor shall assume complete responsibility for notification of affected Parties, and be liable for all associated costs incurred, by Purchaser in responding to or recovering from the Data Breach. 8. USING THE MASTER CONTRACT— PURCHASES. 8.1. ORDERING REQUIREMENTS. Eligible Purchasers shall order Equipment and services from this Master Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Purchaser but, at a minimum, including the use of a purchase order. When practicable, Contractor and Purchaser also shall use telephone orders, email orders, web -based orders, and similar procurement methods (collectively "Purchaser Order"). All order documents must reference the Master Contract number. 8.2. DELIVERY REQUIREMENTS. Contractor must ensure that delivery of Equipment and services will be made as required by this Master Contract, the Purchase Order used by Purchasers, or as otherwise mutually agreed in writing between the Purchaser and Contractor. The following apply to all deliveries: (a) Contractor shall make all deliveries to the applicable delivery location specified in the Purchase Order. Such deliveries shall occur during Purchaser's normal work hours and within the time period mutually agreed in writing between Purchaser and Contractor at the time of order placement. (b) Contractor shall ship all goods and services purchased pursuant to this Master Contract, freight charges prepaid by Contractor, FOB Purchaser's specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the goods and services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Purchaser's fault or negligence. (c) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Master Contract shall be identified by the Master Contract number set forth on the cover of this Master Contract and the applicable Purchaser's Purchase Order MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 233 of 298 8 Back to Agenda number. Packing lists shall be enclosed with each shipment and clearly identify all contents and any backorders. 8.3. RECEIPT AND INSPECTION OF GOODS AND SERVICES. Goods and Services purchased under this Master Contract are subject to Purchaser's reasonable inspection, testing, and approval at Purchaser's destination. Purchaser reserves the right to reject and refuse acceptance of goods and services that are not in accordance with this Master Contract and Purchaser's Purchase Order. Purchaser may charge Contractor for the cost of inspecting rejected goods. If there are any apparent defects in the goods and services at the time of delivery, Purchaser promptly will notify Contractor. At Purchaser's option, and without limiting any other rights, Purchaser may require Contractor to repair or replace, at Contractor's expense, any or all of the damaged goods and services or, at Purchaser's option, Purchaser may note any damage to the goods and services on the receiving report, decline acceptance, and deduct the cost of rejected goods and services from final payment. Payment for any goods under such Purchase Order shall not be deemed acceptance of the goods. 8.4. ON SITE REQUIREMENTS. While on Purchaser's premises, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Purchaser's physical, fire, access, safety, and other security requirements. 9. INVOICING & PAYMENT. 9.1. CONTRACTOR INVOICE. Contractor shall submit to Purchaser's designated invoicing contact properly itemized invoices. Such invoices shall itemize the following: (a) Master Contract No. 03418 (b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative) (c) Contractor's Federal Tax Identification Number (d) Date(s) of delivery (e) Invoice amount; and (f) Payment terms, including any available prompt payment discounts. Contractor's invoices for payment shall reflect accurate Master Contract prices. Invoices will not be processed for payment until receipt of a complete invoice as specified herein. 9.2. PAYMENT. Payment is the sole responsibility of, and will be made by, the Purchaser. Payment is due within thirty (30) days of invoice. If Purchaser fails to make timely payment(s), Contractor may invoice Purchaser in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified. 9.3. OVERPAYMENTS. Contractor promptly shall refund to Purchaser the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) days of written notice to Contractor; Provided, however, that Purchaser shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely payment(s) or issuance of such credit memos, Purchaser may impose a one percent (1%) per month on the amount overdue thirty (30) days after notice to the Contractor. 9.4. NO ADVANCE PAYMENT. No advance payments shall be made for any products or services furnished by Contractor pursuant to this Master Contract. MASTER CONTRACT No. 03418 9 (Rev.4-24-2017) Page 234 of 298 Back to Agenda 9.5. No ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, or payment processing. 9.6. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Master Contract. Failure to do so shall constitute breach of this Master Contract. Unless otherwise agreed, Purchaser shall pay applicable sales tax imposed by the State of Washington on purchased goods and services. Contractor, however, shall not make any charge for federal excise taxes and Purchaser agrees to furnish Contractor with an exemption certificate where appropriate. 10. CONTRACT MANAGEMENT. 10.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the Parties hereby designate the following contract administrators as the respective single points of contact for purposes of this Master Contract. Enterprise Services' contract administrator shall provide Master Contract oversight. Contractor's contract administrator shall be Contractor's principal contact for business activities under this Master Contract. The Parties may change contractor administrators by written notice as set forth below. Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the Parties may specify in writing: Enterprise Services Attn: Neva Peckham Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Tel: (360) 407-9411 Email: nvea.peckham@des.wa.gov Contractor Attn: Dave Crace Avidex Industries LLC 13555 Bel -Red Road, Suite 226 Tel: (425) 274-7916 Email: dcrace@avidexay.com Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee. 10.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Enterprise Services of the same) who shall be responsible for addressing Purchaser issues pertaining to this Master Contract. 10.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and delivered by U.S. certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the Parties may specify in writing: Enterprise Services Attn: Legal Services Manager Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Email: greg.tolbert@des.wa.gov Contractor Attn: Dave Crace Avidex Industries LLC 13555 Bel -Red Road, Suite 226 (425)-274-7916 Email: dcrace@avidexay.com MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 235 of 298 10 Back to Agenda Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee. 11. CONTRACTOR SALES REPORTING; VENDOR MANAGEMENT FEE; & CONTRACTOR REPORTS. 11.1. MASTER CONTRACT SALES REPORTING. Contractor shall report total Master Contract sales quarterly to Enterprise Services, as set forth below. (a) Master Contract Sales Reporting System. Contractor shall report quarterly Master Contract sales in Enterprise Services' Master Contract Sales Reporting System. Enterprise Services will provide Contractor with a login password and a vendor number. The password and vendor number will be provided to the Sales Reporting Representative(s) listed on Contractor's Bidder Profile. (b) Data. Each sales report must identify every authorized Purchaser by name as it is known to Enterprise Services and its total combined sales amount invoiced during the reporting period (i.e., sales of an entire agency or political subdivision, not its individual subsections). The "Miscellaneous" option may be used only with prior approval by Enterprise Services. Upon request, Contractor shall provide contact information for all authorized purchasers specified herein during the term of the Master Contract. If there are no Master Contract sales during the reporting period, Contractor must report zero sales. (c) Due dates for Master Contract Sales Reporting. Quarterly Master Contract Sales Reports must be submitted electronically by the following deadlines for all sales invoiced during the applicable calendar quarter: FOR CALENDAR QUARTER ENDING MASTER CONTRACT SALES REPORT DUE March 31: April 30 June 30: July 31 September 30: October 31 December 31: January 31 11.2. VENDOR MANAGEMENT FEE. Contractor shall pay to Enterprise Services a vendor management fee ("VMF") of 1.50 percent on the purchase price for all Master Contract sales (the purchase price is the total invoice price less applicable sales tax). (a) The sum owed by Contractor to Enterprise Services as a result of the VMF is calculated as follows: Amount owed to Enterprise Services = Total Master Contract sales invoiced (not including sales tax) x .0150. (b) The VMF must be rolled into Contractor's current pricing. The VMF must not be shown as a separate line item on any invoice unless specifically requested and approved by Enterprise Services. (c) Enterprise Services will invoice Contractor quarterly based on Master Contract sales reported by Contractor. Contractors are not to remit payment until they MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 236 of 298 11 Back to Agenda receive an invoice from Enterprise Services. Contractor's VMF payment to Enterprise Services must reference this Master Contract number, work request number (if applicable), the year and quarter for which the VMF is being remitted, and the Contractor's name as set forth in this Master Contract, if not already included on the face of the check. (d) Failure to accurately report total net sales, to submit a timely usage report, or remit timely payment of the VMF, may be cause for Master Contract termination, suspension, or the exercise of other remedies provided by law. Without limiting any other available remedies, the Parties agree that Contractor's failure to remit to Enterprise Services timely payment of the VMF shall obligate Contractor to pay to Enterprise Services, to offset the administrative and transaction costs incurred by the State to identify, process, and collect such sums. The sum of $200.00 or twenty-five percent (25%) of the outstanding amount, whichever is greater, or the maximum allowed by law, if less. (e) Enterprise Services reserves the right, upon thirty (30) days advance written notice, to increase, reduce, or eliminate the VMF for subsequent purchases, and reserves the right to renegotiate Master Contract pricing with Contractor when any subsequent adjustment of the VMF might justify a change in pricing. 11.3. ANNUAL MASTER CONTRACT SALES REPORT. Contractor shall provide to Enterprise Services a detailed annual Master Contract sales report. Such report shall include, at a minimum: Product description, part number or other Product identifier, per unit quantities sold, and Master Contract price. This report must be provided in an electronic format that can be read by MS Excel. 12. RECORDS RETENTION & AUDITS. 12.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Contract and orders placed by Purchasers under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Master Contract or final payment for any order placed by a Purchaser against this Master Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved. 12.2. AUDIT. Enterprise Services reserves the right to audit, or have a designated third party audit, applicable records to ensure that Contractor has properly invoiced Purchasers and that Contractor has paid all applicable contract management fees. Accordingly, Contractor shall permit Enterprise Services, any Purchaser, and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Contract or orders placed by a Purchaser under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Master Contract or final payment for any order placed by a Purchaser against this Master Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved. MASTER CONTRACT No. 03418 12 (Rev.4-24-2017) Page 237 of 298 Back to Agenda 12.3. OVERPAYMENT OF PURCHASES OR UNDERPAYMENT OF FEES. Without limiting any other remedy available to any Purchaser, Contractor shall (a) reimburse Purchasers for any overpayments inconsistent with the terms of this Master Contract or orders, at a rate of 125% of such overpayments, found as a result of the examination of the Contractor's records; and (b) reimburse Enterprise Services for any underpayment of fees, at a rate of 125% of such fees found as a result of the examination of the Contractor's records (e.g., if Contractor underpays the Vendor Management Fee by $500, Contractor would be required to pay to Enterprise Services $500 x 1.25 = $625). 12.4. PUBLIC INFORMATION. This Master Contract, all related documents, and all records created as a result of the Master Contract, are subject to public disclosure as required by Washington's Public Records Act, RCW chapter 42.56. Consistent with the Public Records Act, to the extent that any such Contractor document or record — in whole or in part — includes information exempted or protected from disclosure by the Public Records Act, Contractor may mark such document or record — the exempted or protected portions only — with the specific basis for protection under the Public Records Act. In the event that Enterprise Services receives a public records disclosure request that pertains to such properly marked documents or records, Enterprise Services shall notify Contractor of such disclosure request and of the date that the records will be released to the requester unless Contractor, at Contractor's sole expense, timely obtains a court order enjoining such disclosure. In the event Contractor fails to file a motion for a court order enjoining such disclosure, Enterprise Services shall release the requested documents on the date specified. Contractor's failure properly to identify exempted or protected information or timely respond after notice of request for public disclosure has been given shall be deemed a waiver by Contractor of any claim that such materials are protected or exempt from disclosure. 13. INSURANCE. 13.1. INSURANCE OBLIGATION. During the Term of this Master Contract, Contractor obtain and maintain in full force and effect, at Contractor's sole expense, insurance coverage as detailed in Exhibit A —Insurance Requirements of this document. 13.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Enterprise Services may terminate this Master Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. In addition, Contractor waives its immunity under RCW Title 51 to the extent it is required to indemnify, defend, and hold harmless the State of Washington and its agencies, officials, agents, or employees. 14. CLAIMS. 14.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents, in connection with Contractor's operations under this Master Contract. Enterprise Services has made no representations regarding any factor affecting Contractor's risks. Contractor shall pay for all damage to any Purchaser's property resulting directly or indirectly from its acts or omissions under this Master Contract, even if not attributable to negligence by Contractor or its agents. MASTER CONTRACT No. 03418 13 (Rev.4-24-2017) Page 238 of 298 Back to Agenda 14.2. THIRD -PARTY CLAIMS; INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Enterprise Services and any Purchaser and their employees and agents from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys' fees, consultant fees, and expert fees (collectively "claims") arising from any act or omission of Contractor or its successors, agents, and subcontractors under this Master Contract, except claims caused solely by Enterprise Services or any Purchasers' negligence. Contractor shall take all steps needed to keep Purchaser's property free of liens arising from Contractor's activities, and promptly obtain or bond the release of any such liens that may be filed. 15. DISPUTE RESOLUTION. The Parties shall cooperate to resolve any dispute pertaining to this Master Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the Parties cannot then agree on a resolution of the dispute, the Parties shall schedule a conference between the respective senior manager of each organization to attempt to resolve the dispute. In the event the Parties cannot agree, either party may resort to court to resolve the dispute. 16. SUSPENSION & TERMINATION; REMEDIES. 16.1. SUSPENSION & TERMINATION FOR DEFAULT. Enterprise Services may suspend Contractor's operations under this Master Contract immediately by written cure notice of any default. Suspension shall continue until the default is remedied to Enterprise Services' reasonable satisfaction; Provided, however, that, if after thirty (30) days from such a suspension notice, Contractor remains in default, Enterprise Services may terminate Contractor's rights under this Master Contract. All of Contractor's obligations to Enterprise Services and Purchasers survive termination of Contractor's rights under this Master Contract, until such obligations have been fulfilled. 16.2. DEFAULT. Each of the following events shall constitute default of this Master Contract by Contractor: (a) Contractor fails to perform or comply with any of the terms or conditions of this Master Contract including, but not limited to, Contractor's obligation to pay vendor management fees when due; (b) Contractor breaches any representation or warranty provided herein; or (c) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary. 16.3. REMEDIES FOR DEFAULT. (a) Enterprise Services' rights to suspend and terminate Contractor's rights under this Master Contract are in addition to all other available remedies. (b) In the event of termination for default, Enterprise Services may exercise any remedy provided by law including, without limitation, the right to procure for all Purchasers replacement goods and services. In such event, Contractor shall be liable to Enterprise Services for damages as authorized by law including, but not limited to, MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 239 of 298 14 Back to Agenda any price difference between the Master Contract price and the replacement or cover price as well as any administrative and/or transaction costs directly related to such replacement procurement — e.g., the cost of the competitive procurement. 16.4. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the Parties agree that in no event shall any party or Purchaser be liable to the other for exemplary or punitive damages. 16.5. GOVERNMENTAL TERMINATION. (a) Termination for Withdrawal of Authority. Enterprise Services may suspend or terminate this Master Contract if, during the term hereof, Enterprise Services' procurement authority is withdrawn, reduced, or limited such that Enterprise Services, in its judgment, would lack authority to enter into this Master Contract; Provided, however, that such suspension or termination for withdrawal of authority shall only be effective upon twenty (20) days prior written notice; and Provided further, that such suspension or termination for withdrawal of authority shall not relieve any Purchaser from payment for goods and services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such suspension or termination for withdrawal of authority, neither Enterprise Services nor any Purchaser shall have any obligation or liability to Contractor. (b) Termination for Public Convenience. Enterprise Services, for public convenience, may terminate this Master Contract; Provided, however, that such termination for public convenience must, in Enterprise Services' judgment, be in the best interest of the State of Washington; and Provided further, that such termination for public convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve any Purchaser from payment for goods and services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, neither Enterprise Services nor any Purchaser shall have any obligation or liability to Contractor. 16.6. TERMINATION PROCEDURE. Regardless of basis, in the event of suspension or termination (in full or in part), the Parties shall cooperate to ensure an orderly and efficient suspension or termination. Accordingly, Contractor shall deliver to Purchasers all goods and services that are complete (or with approval from Enterprise Services, substantially complete) and Purchasers shall inspect, accept, and pay for the same in accordance with this Master Contract and the applicable Purchase Order. Unless directed by Enterprise Services to the contrary, Contractor shall not process any orders after notice of suspension or termination inconsistent therewith. 17. GENERAL PROVISIONS. 17.1. TIME IS OF THE ESSENCE. Time Is of the essence for each and every provision of this Master Contract. 17.2. COMPLIANCE WITH LAW. Contractor shall comply with all applicable law. 17.3. INTEGRATED AGREEMENT. This Master Contract constitutes the entire agreement and understanding of the Parties with respect to the subject matter and supersedes all prior negotiations, representations, and understandings between them. There are no representations or understandings of any kind not set forth herein. MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 240 of 298 15 Back to Agenda 17.4. AMENDMENT OR MODIFICATION. Except as set forth herein, this Master Contract may not be amended or modified except in writing and signed by a duly authorized representative of each party. 17.5. AUTHORITY. Each party to this Master Contract, and each individual signing on behalf of each party, hereby represents and warrants to the other that it has full power and authority to enter into this Master Contract and that its execution, delivery, and performance of this Master Contract has been fully authorized and approved, and that no further approvals or consents are required to bind such party. 17.6. No AGENCY. The Parties agree that no agency, partnership, or joint venture of any kind shall be or is intended to be created by or under this Master Contract. Neither party is an agent of the other party nor authorized to obligate it. 17.7. ASSIGNMENT. Contractor may not assign its rights under this Master Contract without Enterprise Services' prior written consent and Enterprise Services may consider any attempted assignment without such consent to be void; Provided, however, that, if Contractor provides written notice to Enterprise Services within thirty (30) days, Contractor may assign its rights under this Master Contract in full to any parent, subsidiary, or affiliate of Contractor that controls or is controlled by or under common control with Contractor, is merged or consolidated with Contractor, or purchases a majority or controlling interest in the ownership or assets of Contractor. Unless otherwise agreed, Contractor guarantees prompt performance of all obligations under this Master Contract notwithstanding any prior assignment of its rights. 17.8. BINDING EFFECT; SUCCESSORS & ASSIGNS. This Master Contract shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. 17.9. ASSIGNMENT OF ANTITRUST RIGHTS REGARDING PURCHASED GOODS/SERVICES. Contractor Irrevocably assigns to Enterprise Services, on behalf of the State of Washington, any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws in connection with any goods and services provided in Washington for the purpose of carrying out the Contractor's obligations under this Master Contract, including, at Enterprise Services' option, the right to control any such litigation on such claim for relief or cause of action. 17.10. FEDERAL FUNDS. To the extent that any Purchaser uses federal funds to purchase goods and services pursuant to this Master Contract, such Purchaser shall specify, with its order, any applicable requirement or certification that must be satisfied by Contractor at the time the order is placed or upon delivery. 17.11. SEVERABIUTY. If any provision of this Master Contract is held to be invalid or unenforceable, such provision shall not affect or invalidate the remainder of this Master Contract, and to this end the provisions of this Master Contract are declared to be severable. If such invalidity becomes known or apparent to the Parties, the Parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be consistent with the intent of this Master Contract. 17.12. WAIVER. Failure of either party to insist upon the strict performance of any of the terms and conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or to notify the other party in the event of breach, shall not release the other party of any of its obligations under this Master Contract, nor shall any purported oral modification or rescission MASTER CONTRACT No. 03418 16 (Rev.4-24-2017) Page 241 of 298 Back to Agenda of this Master Contract by either party operate as a waiver of any of the terms hereof. No waiver by either party of any breach, default, or violation of any term, warranty, representation, contract, covenant, right, condition, or provision hereof shall constitute waiver of any subsequent breach, default, or violation of the same or other term, warranty, representation, contract, covenant, right, condition, or provision. 17.13. SURVIVAL. All representations, warranties, covenants, agreements, and indemnities set forth in or otherwise made pursuant to this Master Contract shall survive and remain in effect following the expiration or termination of this Master Contract, Provided, however, that nothing herein is intended to extend the survival beyond any applicable statute of limitations periods. 17.14. GOVERNING LAW. The validity, construction, performance, and enforcement of this Master Contract shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its choice of law rules. 17.15. JURISDICTION & VENUE. In the event that any action is brought to enforce any provision of this Master Contract, the Parties agree to exclusive jurisdiction in Thurston County Superior Court for the State of Washington and agree that in any such action venue shall lie exclusively at Olympia, Washington. 17.16. ATTORNEYS' FEES. Should any legal action or proceeding be commenced by either party in order to enforce this Master Contract or any provision hereof, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein contained, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in connection with such action or proceeding, including costs of pursuing or defending any legal action, including, without limitation, any appeal, discovery, or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted. 17.17. FAIR CONSTRUCTION & INTERPRETATION. The provisions of this Master Contract shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this Master Contract. Each party hereto and its counsel has reviewed and revised this Master Contract and agrees that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be construed in the interpretation of this Master Contract. Each term and provision of this Master Contract to be performed by either party shall be construed to be both a covenant and a condition. 17.18. FURTHER ASSURANCES. In addition to the actions specifically mentioned in this Master Contract, the Parties shall each do whatever may reasonably be necessary to accomplish the transactions contemplated in this Master Contract including, without limitation, executing any additional documents reasonably necessary to effectuate the provisions and purposes of this Master Contract. 17.19. EXHIBITS. All exhibits referred to herein are deemed to be incorporated in this Master Contract in their entirety. 17.20. CAPTIONS & HEADINGS. The captions and headings in this Master Contract are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Master Contract nor the meaning of any provisions hereof. MASTER CONTRACT No. 03418 17 (Rev.4-24-2017) Page 242 of 298 Back to Agenda 17.21. ELECTRONIC SIGNATURES. A signed copy of this Master Contractor any other ancillary agreement transmitted by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Master Contract or such other ancillary agreement for all purposes. 17.22. COUNTERPARTS. This Master Contract may be executed in any number of counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Master Contract at different times and places by the Parties shall not affect the validity thereof so long as all the Parties hereto execute a counterpart of this Master Contract. EXECUTED as of the date and year first above written. STATE OF WASHINGTON Department of Enterprise Services y, Signature Au ority Its; Insert Title VS �m (� AVIDEX INDUSTRIES, LLC A Washington limited liability company Dy'- Michael Clar Its: EVP & ❑ r MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 243 of 298 18 Back to Agenda EXHIBIT A INSURANCE REQUIREMENTS 1. INSURANCE OBLIGATION. During the Term of this Master Contract, Contractor shall obtain and maintain in full force and effect, at Contractor's sole expense, the following insurance coverages: (a) COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial General Liability Insurance (and, if necessary, commercial umbrella liability insurance) covering Bodily Injury and Property Damage on an 'occurrence form' in the amount of not less than $1,000,000 per occurrence and $2,000,000 general aggregate. This coverage shall include Contractual Liability insurance for the indemnity provided under this Master Contract. (b) COMMERCIAL AUTOMOBILE LIABILITY INSURANCE. 'Symbol 1' Commercial Automobile Liability coverage (and, if necessary, commercial umbrella liability insurance) including coverage for all owned, hired, and non -owned vehicles. The combined single limit per accident shall not be less than $1,000,000. (C) PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Professional liability insurance in the amount of not less than $1,000,000 combined single limit per occurrence, $2,000,000 general annual aggregate for malpractice or errors and omissions coverage against liability for damages because of personal injury, bodily injury, death, or damage to property, including the loss of use thereof, and damages because of negligent acts, errors, and omissions in any way related to this Master Contract. (d) CRIME INSURANCE/EMPLOYEE DISHONESTY/COMPUTER FRAUD. Employee Dishonesty and (when applicable) Inside/Outside Money and Securities coverages for State of Washington and/or Purchaser -owned property in the care, custody, and control of Contractor. Coverage limits shall not be less than $1,000,000. The limits of all insurance required to be provided by Contractor shall be no less than the minimum amounts specified. Coverage in the amounts of these minimum limits, however, shall not be construed to relieve Contractor from liability in excess of such limits. A cross -liability clause or separation of insured condition shall be included in the general liability, policy required by this Master Contract. 2. INSURANCE CARRIER RATING. Coverages provided by the Contractor must be underwritten by an insurance company deemed acceptable to the State of Washington's Office of Risk Management. Insurance coverage shall be provided by companies authorized to do business within the State of Washington and rated A- Class VII or better in the most recently published edition of Best's Insurance Rating. Enterprise Services reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. 3. ADDITIONAL INSURED. Except for Workers' Compensation, Professional Liability, Commercial Automobile Liability, all required insurance shall include the State of Washington and all authorized Purchasers (and their agents, officers, and employees) as an Additional Insureds evidenced by copy of the Additional Insured Endorsement attached to the Certificate of Insurance on such insurance policies. MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 244 of 298 19 Back to Agenda 4. CERTIFICATE OF INSURANCE. Upon request by Enterprise Services, Contractor shall furnish to Enterprise Services, as evidence of the insurance coverage required by this Master Contract, a certificate of insurance satisfactory to Enterprise Services that insurance, in the above -stated kinds and minimum amounts, has been secured. A renewal certificate shall be delivered to Enterprise Services no less than ten (10) days prior to coverage expiration. Failure to provide proof of insurance, as required, will result in contract cancellation. All policies and certificates of insurance shall include the Master Contract number stated on the cover of this Master Contract. 5. PRIMARY COVERAGE. Contractor's insurance shall apply as primary and shall not seek contribution from any insurance or self-insurance maintained by, or provided to, the additional insureds listed above including, at a minimum, the State of Washington and/or any Purchaser. All insurance or self-insurance of the State of Washington and/or Purchasers shall be excess of any insurance provided by Contractor or subcontractors. 6. SUBCONTRACTORS. Contractor shall include all subcontractors as insureds under all required insurance policies, or shall furnish separate Certificates of Insurance and endorsements for each subcontractor. Each subcontractor must comply fully with all insurance requirements stated herein. Failure of any subcontractor to comply with insurance requirements does not limit Contractor's liability or responsibility. 7. WAIVER OF SUBROGATION. Contractor waives all rights of subrogation against the State of Washington and any Purchaser for the recovery of damages to the extent such damages are or would be covered by the insurance specified herein. 8. NOTICE OF CHANGE OR CANCELLATION. There shall be no cancellation, material change, exhaustion of aggregate limits, or intent not to renew insurance coverage, either in whole or in part, without at least sixty (60) days prior written Legal Notice by Contractor to Enterprise Services. Failure to provide such notice, as required, shall constitute default by Contractor. Any such written notice shall include the Master Contract number stated on the cover of this Master Contract. MASTER CONTRACT No. 03418 (Rev.4-24-2017) Page 245 of 298 20 Back to Agenda City of Port Orchard Council Chambers Audiovisual System Update AUDIOVISUAL SOLUTION PROPOSAL Avidex Project 210277 Version 1 STATE OF WASHINGTON DES MASTER CONTRACT NO. 03418 Submitted by Dave Crace 425-274-7916 dcrace(c-)avidex.com tividexeO Audio Video Integration & Design Excellence 13555 Bel -Red Road, Suite #226 1 Bellevue, WA 98005 1425.643.0330 AVIDEX INDUSTRIES, LLC WA Limited Energy License AVIDEIL963CZ September 3, 2021 Page 246 of 298 Back to Agenda Table of Contents SCOPE........................................................................................................................................................3 SCHEDULE............................................................................................................................................. 6 PRICING.................................................................................................................................................. 7 DES - STATE MASTER CONTRACT NO. 03418 PRICING.........................................................9 PROVISIONS........................................................................................................................................10 WORK & PRODUCTS PROVIDED BY OTHERS (EXCLUSIONS)............................................12 NEW SYSTEM WARRANTY.............................................................................................................13 3600 SERVICE PLAN sm.........................................................................................................................14 PAYMENTTERMS..............................................................................................................................15 AUTHORIZATION TO PROCEED - INTEGRATION SERVICES...............................................15 APPENDIX B: EQUIPMENT LIST........................................................................................................16 TERMS & CONDITIONS....................................................................................................................17 © Avidex Industries, LLC. Copyright 2019. This proposal is the property of Avidex. Avidex and the Avidex logo are the property of Avidex Industries, LLC. This document contains proprietary data and concepts that are the property of Avidex Industries, LLC. Information, details, and/or specific data may not be reproduced or duplicated. AVIDEX INDUSTRIES, LLC 2 September 3, 2021 Page 247 of 298 Back to Agenda Our work will be completed at the City of Port Orchard located at 216 Prospect Street Port Orchard, WA 98366 address of job site location in the following space. Council Chambers SCOPE Council Chambers Audiovisual System Update OVERVIEW The City of Port Orchard is looking to update the Council Chambers AV system to support Hybrid use for hosting and conducting UC video conferencing meetings using Zoom or Teams. The proposed upgrades are separated into audio enhancement for both UC and in room audio, and recommended upgrades to the video distribution / control system. PROPOSED AUDIO UPGRADES AUDIO — Digital Ceiling Microphone Array The proposed upgrades include the addition of a ceiling mounted digital microphone array, to be suspended from the ceiling at a height of approximately 12' AFF. The proposed solution includes the provision for either wall mounting to the drywall soffit by means of a short throw projector style mount or suspension by means of aircraft cable from the hard -lid ceiling. The location of the mic array will be fixed and therefore determine the location for the six (6) portable tables as laid out during our site assessment. The microphone is for inclusion in a UC conference call for far side participants, as well as voice lift reinforcement for people seated in the audience area at the entrance to the Council Chambers. AUDIO — Processing and 1/0 The proposed upgrades include providing and installing one (1) digital audio interface to work in conjunction with the existing audio DSP's. The audio processors will be re- programmed to include the digital microphone array and to set up a mix -minus system to support voice lift in conjunction with UC conferencing audio. Audio to the dedicated UC laptop located on the AV Display / Camera cart will be via a digital audio to USB adapter. The USB adapter will connect to the existing managed network switch on the cart currently connected to the NDI/HX camera and laptop. In addition, Avidex determined there were some wiring issues with the existing install in regard to program audio to - from the Lumens LC200 that will be rectified by installation of the correct balanced audio transformers and wiring. AVIDEX INDUSTRIES, LLC September 3, 2021 Page 248 of 298 Back to Agenda AUDIO — Mix Minus Speaker Zones The existing ceiling speakers are currently wired in a single (1) zone and lack the pattern control needed for a successful voice lift mix minus system. The ceiling speaker locations will be retained, but the speakers will be replaced with surface mounted versions with high frequency pattern control and the ability to "aim" them to the areas in need of voice lift. Currently there are seven (7) ceiling speakers, which will be separated into four (4) zones utilizing the existing four (4) channel audio amplifier to allow for the digital microphone array audio to be directed to the areas in need of UC participant voice lift. AUDIO - Control The current system utilizes a legacy audio controller that is very limited, relying on selection buttons and rotary controllers to navigate multiple nested control selections that are not easy to access quickly. The proposed upgrades allow control of the audio system from a 10" wired ethernet touch panel by implementation of a Crestron control processor. Alternatively, an OFE iPad (or equal) could be used as a control touch panel if mobility in the space is needed. This control processor also allows for future deployment of video upgrade controls as opposed to the "front button" routing / control, television IR remotes, etc. currently in use. EQUIPMENT RACK The proposed solution has minimal impact to the existing equipment rack, there is sufficient capacity for the additional hardware required. Avidex proposes as a part of these upgrades that legacy hardware no longer in use be decommissioned and removed from the rack. Legacy wiring will be coiled and labeled as "future use" within the rack. PROPOSED VIDEO UPGRADES VIDEO — Wireless Presentation + UC The existing solution connects the Staff PC to the system via a wireless HDMI transmitter + receiver. This wireless connection will be replaced with a new wireless presentation device that also allows support for wireless USB connectivity to support UC Conferencing. This will allow for Teams/Zoom meetings to be hosted from the Staff PC in addition to the portable cart UC system. AVIDEX INDUSTRIES, LLC September 3, 2021 Page 249 of 298 Back to Agenda VIDEO - Routing The existing system utilizes a number of cascaded HDMI devices to switch and distribute video signals from a staff PC, wireless sharing device, and the Lumens LC200 CaptureVision system. Final display on the three (3) televisions is limited to the program output of the LC200. Avidex proposes to upgrade the video distribution system to allow for an "any source, any destination" solution that allows for better management and processing of video sources. For example, if the staff PC is needing to be displayed, the proposed upgrades would allow a direct connection of that source to any or all displays. Currently the system requires the staff PC to be ingested into the LC200 for processing and distribution to all displays. The existing system does not allow for display of more than one source at a time. Also, the existing system is limited to its ability to scale for more sources or destinations, due to the limits of the HDMI switchers and distribution amplifiers. The proposed solution is based on an AVoIP (Audio Visual over Internet Protocol) standard. The components required are IP encoders to take in content from a PC or BYOD device, a Layer 2 managed IP network switch for distribution, and an IP decoder to convert the IP streams back to HDMI for display. Based on this topology the systems are virtually infinitely scalable and flexible. The proposed audio upgrades include the implementation of a layer 2 network switch with sufficient ports to support the proposed video upgrades. Hardware that is required to support the proposed video upgrades are: Encoders for the following sources: • Staff PC via Wireless UC + Presentation Device o Replaces OFE Kramer Wireless HDMI Link • Kramer VIA Go Wireless Sharing Device • Lumens LC200 Program Output • UC Laptop on AV Cart Decoders for the following destinations: • Display outside production room • Display on far side next to conference room entrance • Display on AV cart (for UC and presentation) • Lumens LC200 Program Input VIDEO - Control The proposed audio control solution includes the processor and touch screen required to support the video upgrades. The addition of the proposed video upgrades will only require programming and UI updates. AVIDEX INDUSTRIES, LLC September 3, 2021 Page 250 of 298 Back to Agenda SCHEDULE Avidex will work with the City to finalize a schedule that meets the implementation requirements of the project. The chart below identifies various phases in the overall process. Please note that each job is unique and will have its own installation schedule that will be agreed upon between Avidex and the client. Rough- In Equipment Install Programming Testing Adjustment Client Training This project is anticipated to take approximately 10 week(s) from receipt of a valid Purchase Order or an executed contract referring to this proposal document. This is not a guarantee of delivery or installation time. Actual delivery and installation schedules will be finalized after receipt of the purchase order. AVIDEX INDUSTRIES, LLC September 3, 2021 Page 251 of 298 Back to Agenda PRICING AUDIO UPDATE EQUIPMENT AND MATERIALS TECHNICAL SERVICES - includes audiovisual engineering, offsite and on -site installation and wiring, coordination and supervision, testing, checkout, training, G&A and New System Warranty. This proposal includes non -union labor for all activities. PROJECT SUBTOTAL SHIPPING - *Ground shipping included per DES contract. SALES TAX - Applicable sales tax will be added to invoices based on current tax rates on the invoice date as required by state law PROJECT TOTAL VIDEO UPDATE EQUIPMENT AND MATERIALS TECHNICAL SERVICES - includes audiovisual engineering, offsite and on -site installation and wiring, coordination and supervision, testing, checkout, training, G&A and New System Warranty. This proposal includes non -union labor for all activities. PROJECT SUBTOTAL SHIPPING - *Ground shipping included per DES contract. SALES TAX ESTIMATE Applicable sales tax will be added to invoices based on current tax rates on the invoice date as required by state law PROJECT TOTAL TOTAL PROJECT AVIDEX INDUSTRIES, LLC 7 $ 11,271.60 $ 22,158.00 $ 33,429.60 $ 0.00 $ 3,008.66 $ 36,438.26 $ 9,371.99 $ 16,965.00 $ 26,336.99 $ 0.00 $ 2,370.33 $ 28,707.32 $ 65,145.58 September 3, 2021 Page 252 of 298 Back to Agenda 3600 SERVICE PLAN OPTION 3600 SERVICE PLAN - 1 Year Essential Plan 3600 SERVICE PLAN - 2 Year Essential Plan 3600 SERVICE PLAN - 3 Year Essential Plan AVIDEX INDUSTRIES, LLC $ 1,813.00 $ 3,624.00 $ 5,436.00 September 3, 2021 Page 253 of 298 Back to Agenda DES — STATE MASTER CONTRACT NO. 03418 PRICING 1. Equipment Pricing Equipment pricing will be calculated on a 13.00% cost plus mark-up based on the manufacturer's current published dealer unit cost. • Shipping and Handling (Ground Delivery) included. • Avidex will accept returned equipment within 30 days of delivery in original factory sealed packaging and may be subject to manufacturer re -stocking fees. 2. Hourly Rates Hourly not to exceed service rates to be used to support design engineering, CAD drafting, project management, control system programming, wiring, cabling, installation, and training. Electronic Technician — 200% of Prevailing Wage Hourly Rate (Installation) AVIDEX INDUSTRIES, LLC September 3, 2021 Page 254 of 298 Back to Agenda PROVISIONS • Rooms are to be made available for exclusive use on the day(s) of the scheduled installation. Unless specifically arranged in advance, room(s) will be available during Normal Business Hours in eight (8) contiguous hour segments. "Normal Business Hours" are defined as Monday through Friday, 8:00am to 5:00pm. • Client will provide all electrical outlets floor boxes, conduits and core drills in the area(s) where audiovisual equipment is to be installed as specified by Avidex prior to Avidex beginning on -site work. • Jobsite building structures including ceilings, walls and floors; used to support audiovisual equipment are assumed to be vibration free. • Client will provide adequate parking for vehicle(s) in a location conducive to access to the vehicle(s) for retrieval of tools and supplies throughout the workday. If such parking is within a secured facility, Client will validate the parking tickets for the vehicle(s). Parking fees will be added to invoices. • If installation occurs in any room in which suspended ceiling tiles are installed, Client will provide a reasonable number of spare tiles of the same pattern and batch number as those of the tiles already installed in the room. • Client accepts responsibility for all merchandise sold and provided for this installation, delivered to the job site. Client will provide secure storage for such merchandise. Avidex will not be responsible for any loss or damage, except loss or damage caused by an Avidex employee during the act of installation, which occurs after delivery and acceptance by the client. • Existing hardware, wiring, programming or configuration files are anticipated to be in good working order. Client shall provide programming and configuration files in editable formats. If, during the installation process, existing hardware, wiring, programming or configuration are found to be defective, the completion date of the project may be affected, and a change order may be required to overcome the obstacle(s) created by such defects. • Client shall identify the presence of any pre- or post -tensioned ceilings or floors within the area of installation. If Avidex is to be held responsible for the integrity of such pre- or post - tensioned ceilings or floors, they shall obtain, at Client's expense, one or more x-rays of the area(s) in which mounting hardware is to be attached to structure of the building. Any expense incurred for x-rays shall be passed on to the Client, in the form of a change order or a line item on the purchase contract. • Any standard merchandise that has been ordered for the job, and is not used as a result of any customer changes to the design, or refused by the client at the time of delivery will be subject to a minimum of 30% of the sales price restocking fees, plus any incurred freight charges. Any custom merchandise will be subject to a 100% of the sales price restocking fee, plus any incurred freight. • Should Avidex be delayed at any time in the progress of the work, by material changes ordered in the work, by labor disputes, fire, unusual delay in deliveries, construction delays, unavoidable casualties or causes beyond Avidex's control, the agreed upon time for completion shall be extended by Change Order for such reasonable time as the Project manager may determine. • Such Change Orders may include charges to cover additional costs incurred by Avidex due to the delay. AVIDEX INDUSTRIES, LLC 10 September 3, 2021 Page 255 of 298 Back to Agenda • Avidex's proposals for installation costs are based upon 8-hour days and 40-hour workweeks, Monday through Friday, between the hours of 8:OOAM and 5:OOPM. Installation costs for work outside of normal business hours or business days may be subject to overtime rates, when mutually agreed upon in writing. • Avidex shall make all reasonable efforts to inspect and review the existing project site physical and audiovisual infrastructure conditions. Existing site conditions needing to remain intact, along with the Client or End -User direction for the audiovisual design may result in other required audiovisual infrastructure requirements (raceways, conduit, AC power, structural backing -blocking, structural engineer stamped drawings, etc.) and/or changes to the audiovisual equipment and integration labor, leading to pricing adjustments. • Freight fees are estimated for ground freight service. Expedited freight, as required by the client, will be prepaid and added to invoices. • The pricing information provided within this proposal is solely for the benefit of the Client listed on the title page. Award of work to Avidex by a 3rd party will require Avidex credit and contract term review and approval as well as pricing confirmation for the new contract terms. • The Client will furnish Avidex such financial information as Avidex may reasonably request to establish credit terms for the project. Such financial information shall be proprietary and confidential to the Client. Avidex agrees not to disclose this information to any other party or use the information other than for the internal credit check. Avidex may, at its sole discretion, cancel this agreement at any time if the Client fails to meet credit requirements established by Avidex. • The Americans with Disabilities Act (ADA) and Washington Building Code require the provision of Assistive Listening Systems in assembly areas, conference rooms, and meeting rooms. Hardware and services may be required for ADA-compliance. Client or its contractor should review project requirements for ALS with Avidex for each project to determine if portable or fixed systems are required. ALS hardware, if provided, will be identified in the Equipment List appendix. • Where applicable, Avidex will provide the Client or End -User with an irrevocable, royalty -free license and full access to control systems and other software source code(s) that have been written by Avidex specifically for this project. All software program(s) or code(s) will be provided with an explicit understanding that no modification, no duplication, nor distribution of the software by the Client or End -User shall be allowed. Software source code modifications by the Client or End -User, resulting in audiovisual systems malfunction shall be the responsibility of the Client or End -User to remedy. • Changes in project scope and timeline may require additional hardware, equipment and labor may be necessary to complete the project. These additions will be considered change orders. Avidex will notify the Client in writing if Avidex determines an increase or decrease in the project fees or timeline will be required. Change orders will include a change request number, reason for the change request, narrative description of the modified scope of work, schedule and cost impact. The Client will provide written approval to proceed with the change and any needed updated purchase order or signed agreement as a record for both organizations. Should the Client in whole cancel project in whole or in part, prior to final completion, the Client agrees to pay Avidex for all reasonable costs incurred to date and/or to bring the project to an acceptable close. AVIDEX INDUSTRIES, LLC 11 September 3, 2021 Page 256 of 298 Back to Agenda WORK & PRODUCTS PROVIDED BY OTHERS (EXCLUSIONS) • All required architectural floor, reflected ceiling, building elevation, and section plans in an agreed upon AutoCAD format at no charge to Avidex. • Any and all related electrical work, including but not limited to 110VAC, conduit, raceway, and boxes. This includes all conduits, high voltage wiring panels, breakers, relays, boxes, receptacles, etc. • All network connectivity, routing, switching and port configuration necessary to support audiovisual equipment, unless specifically addressed elsewhere in this document. • Voice and data infrastructure and systems. • Necessary sheet rock replacement and or repair. • Necessary ceiling the or T-bar modifications, replacement, and/or repair. • All millwork, moldings, trim, etc., or modifications to project millwork necessary to accommodate the installation of the audiovisual equipment unless otherwise noted in this proposal. • Rough -in, bracing, framing, or finish trim carpentry for installation. • Backing required to support wall mounted equipment including display, loudspeakers, camera, et cetera. • Painting, patching or finishing of architectural surfaces. • Core drilling and/or concrete saw cutting. • HVAC, plumbing, sprinkler head, and lighting fixture relocation. • Ceiling, roof, firewall, and/or floor penetration(s). • Removal or patching, of fire stopping. • Structural welding, cutting, or reinforcement of structural steel members required for support of assemblies. • Work in asbestos treated areas and asbestos abatement. If asbestos is discovered during our work, Avidex will notify Client and will stop work until asbestos abatement work is completed by Client or its contractor. • Any subscription services, cabling, and equipment. • Provision and configuration of client furnished computers and software. • Acquisition of permits. • All Union Labor unless specifically addressed separately in proposal pricing. AVIDEX INDUSTRIES, LLC 12 September 3, 2021 Page 257 of 298 Back to Agenda NEW SYSTEM WARRANTY Avidex warrants the integrated system(s) furnished are free of defects in workmanship and materials for a period of one year from the date of acceptance or date of first beneficial use whichever occurs first. Remedy for such defects during the warranty period shall be provided at no additional expense to the client and shall be handled as expeditiously as is feasible during normal business hours and days of operation. Under this warranty, Avidex will troubleshoot, uninstall and reinstall any equipment within the Avidex audiovisual system except for the cost to service and/or repair Client Furnished Equipment or equipment out of manufacturer's warranty. Avidex will broker and process the repair of that equipment at the standard Avidex rate. Avidex reserves the right to charge for a service visit at standard Avidex service time and material rates (minimum of 2 hours onsite plus travel) if a service call results in a No Fault Found (NFF) or No Trouble Found (NTF) during a dispatched site visit. Avidex Services Provided Under the New System Warranty • Avidex will respond to requests for assistance due to client -reported issues and, if warranted, dispatch a technician during normal business hours (8:OOAM to 5:OOPM Pacific Time, Monday — Friday, excluding Avidex holidays) to troubleshoot the AV system problem based on our available resources • Avidex will identify and uninstall the defective equipment and return such equipment to the manufacturer or authorized repair center for warranty processing • Avidex will reinstall the repaired or replaced equipment and test the system • Avidex will pay the shipping costs associated with the repair of the equipment, except for Client Furnished Equipment and/or equipment out of manufacturer warranty Avidex Services Not Provided Under the New System Warranty • Extend or provide additional repair services for manufacturer warranty coverage • Repair of Client Furnished Equipment • After hours 24x7 Helpdesk support • Guaranteed on -site response time • Remote system monitoring, management, and reporting • Before- or after-hours on -site response • Proactive support or preventive maintenance • Training • Spare or loaner equipment during equipment repair period • Warranty coverage for client acts of negligence or misuse AVIDEX INDUSTRIES, LLC 13 September 3, 2021 Page 258 of 298 Back to Agenda 3600 SERVICE PLAN Sm Avidex recommends the Essential 3600 Service Plan less remote monitoring 3600 for this project. Avidex 3601 Service enhances the new systems warranty coverage with proactive support services for worry -free operation. See SERVICE Appendix A for further details on the proposed 360' Service Plan. 360° Coverage Essential Advanced Elite Help Desk Support Availability 8x5* 24x7 24x7 Priority Call Response Time SLA 4 hours 2 hours 1 hour Priority On -Site Response Time SLA 2 business days 1 business day 4 business hours* RMA Management of OEM Hardware Annual Preventive Maintenance & Reporting One One One Assigned Service Management with Escalation Access On -Site AV Service Assurance Technician Optional Optional Optional Emergency Loaners for Business -Critical Devices The below items: Remote Monitoring, Fault Detection, Analytics & Reporting of Devices may require the implementation of hardware and software applications. Refer to the proposed scope of work to confirm if these features have been included. Remote Monitoring with Fault Detect & Reporting Remote Monitoring with Fault Diagnoses & Troubleshooting AV Solution Analytics & Reporting Management of Device Firmware, Configurations & Changes * Standard Business Hours in Pacific Time Initial Term and Automatic Renewal The initial term of the specified 3600 Service Plan Agreement is identified in the pricing section. Unless written termination is requested by either party thirty (30) days in advance of the anniversary expiration date of the current 3600 Service Plan term, the Agreement between the parties shall automatically renew for successive one (1) year periods. Written termination requests by the client should be sent to: Attn. Contract Admin 13555 Bel -Red Road, Bellevue, WA, 98005. At any time within the current term or renewal period should adjustments in work responsibilities and/or price be deemed necessary, proposal and agreement revisions shall be exchanged between the parties, be mutually agreed upon in writing and once executed become part of the current Agreement or understanding between the parties. AVIDEX INDUSTRIES, LLC 14 September 3, 2021 Page 259 of 298 Back to Agenda PAYMENT TERMS This proposal is valid for 30 days from the date appearing on the cover page. • Monthly progress invoices will be issued with net 30-day terms. • Freight — Ground shipping is included for equipment per DES contract. • Sales tax will be added to invoices based on current tax rates as required by state law on the invoice date. • Avidex reserves the right to charge for stored materials and/or equipment. • Avidex reserves the right to charge a 1.0% fee for late payment of invoices. AUTHORIZATION TO PROCEED — INTEGRATION SERVICES Avidex will begin the implementation phase of this project upon receipt of the client purchase order or executed contract referring to this proposal and the mobilization fee. Submitted by: Avidex Industries, LLC Name: Dave Crace Signature: Date: September 3, 2021 Client Approval Name: Date: Signature: AVIDEX INDUSTRIES, LLC 15 September 3, 2021 Page 260 of 298 Back to Agenda APPENDIX B: EQUIPMENT LIST *To be provided at the point of acceptance of this proposal if required by Client. AVIDEX INDUSTRIES, LLC 16 September 3, 2021 Page 261 of 298 Back to Agenda TERMS & CONDITIONS The Terms & Conditions are based on State of Washington DES Master Contract No. 0318. https://apps.des.wa.qov/DESContracts/Home/ContractSummary/03418 AVIDEX INDUSTRIES, LLC 17 September 3, 2021 Page 262 of 298 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 Subject: Approval of a Road Closure for a Special Event, Yukon Do It! Winter Edition Back to Agenda Meeting Date: October 12, 2021 Prepared by: Brandy Rinearson, MMC Atty Routing No: Atty Review Date City Clerk N/A N/A Summary: City staff received a Special Event application from Run Amok Racing in, Inc. on July 29, 2021.The application states the following: EVENT: Yukon Do It! Winter Edition TYPE: Run/Walk 5K, 10K, and Half Marathon Relay DATE: Saturday, December 18, 2021 TIME: Setup starts Saturday, December 18, 2021 at 4:00 a.m., open to public at 5:00 a.m. until 3 p.m. LOCATION: Downtown Port Orchard; waterfront park and Gazebo, parking lot #4 (behind Peninsula Feed), along the Pedestrian Pathway on Bay Street, and Bay Street/Beach Drive between the 1600 Block to the 1100 Block of Beach Drive CLOSURE(S): Parking lot #4 closure, and Westbound Bay Street East/Beach Drive from Olney Ave. East to Guy Wetzel Avenue, along with corresponding left turn restrictions at Tracy Avenue, Retsil Avenue, Arnold Avenue and the Retsil Veteran's home. Pursuant to Port Orchard Municipal Code 5.94.050(4), staff shall bring forward the special event application to the City council for approval when the event requires a street or highway closure. City staff has received and reviewed the application. The applicant understands, that should the Council approve the street closure, they will be required to hire a private contractor to manage and control the traffic. Relationship to Comprehensive Plan: N/A Recommendation: Staff recommends authorizing the road closure. Motion for consideration: I move to approve the road closure for the Yukon Do It! Winter Edition taking place on Saturday, December 18, 2021, as presented. Fiscal Impact: None. Page 263 of 298 Back to Agenda Business Item 7F Page 2 of 2 Alternatives: Deny the road closure. Attachments: Application, including maps and traffic control plan and comments from various departments and agencies. Page 264 of 298 Back to Agenda RD SPECIAL EVENT PERMIT APPLICATION Thank you for your interest in holding a special event in the City of Port Orchard. This application contains all the information you need to apply for a special event permit. Included is a checklist designed to help you when submitting this application, and tips for a successful event. What are the fees associated with a special event? There is a $50 non-refundable administrative fee to process each application. The City may expedite the application for an additional non-refundable administrative processing fee of $50, if the application is received by the City less than 90 calendar days, but more than 30 calendar days in advance of the event, with no road closures. Per Port Orchard Municipal Code (POMC) 5.96, if your event has two or more vendors engaged in public property vending, you are required to have a master multi -vendor event license. The fee is $15 per event day. When should the special event application be submitted to the City? • The application shall be filed with the city clerk's office no less than 90 calendar days, nor more than one calendar year, before the date when the proposed special event is to take place. A Special Event Reservation Form can be submitted by February 1s' of each year to reserve your proposed special event, if the event was held on the same day as the previous year. Please note that it provides no guarantee that your event will be approved. • If your event requires any road closures, the application must be submitted at least 120 calendar days before the event date. See Page 5 for more details. What is a special event? A special event is defined in the Port Orchard Municipal Code (POMC) as "any organized formation of an activity proposed to occur that affects the public's ordinary use of rights -of -way or public parks, including but not limited to runs, street dances, block parties and parades". All special events require approval by the City of Port Orchard. Can I hold a special event in a City owned park? City parks are available on a first -come, first -served basis. The City does not reserve parks for events. However, POMC 9.60 'Park Rules' states in part that no person can solicit, or offer for sale any article or thing, or use any stand, cart or vehicle for the sale or display without authorization from the City Council. In addition, no animals are allowed in City parks other than dogs or cats. What types of events are considered special events? • Parades • Concerts • Runs/Walks • Community awareness events • Festivals • Outdoor movies • Block Parties • Street dances • Car Shows • Other similar events • Vendor Fairs City of Port Orchard I Special Event Application - Revised 211412021 Page 1 of 10 Page 265 of 298 Back to Agenda ORCHARD What if my event is outside Port Orchard City limits or on property not owned by the City? If your event is outside Port Orchard city limits, you will need to contact Kitsap County at 360.337.5777. If your event is on private property, you will need to contact the property owner. If your event is utilizing the property of the Port of Bremerton, you will need to contact the Port of Bremerton. If your event is utilizing both City property and property that is NOT owned/leased by the City, written approval is required by the owner/manager of the private property and must be included with your application. Can I ask for road closures or detours for a SK run/walk or similar event? If the event is a parade or run, the following information is required: A map of the route to include the following: o Exact location of any marshalling or staging areas. o The time at which units of the parade/run will begin to arrive at the staging areas and the times at which all such units will be disbursed there from. o The exact route to be traveled, including the starting point, rest areas, and end point. The approximate number of persons, animals, and vehicles which will constitute the parade/run, and the types of animals and descriptions of the vehicles. A statement as to whether the parade/run will occupy all or only a portion of the width of the street, roadway, or sidewalks to be used. What is the special event application process? • Submit to the City Clerk's office a Special Event Reservation form (if applicable). • Submit the completed application to the City Clerk's office with required fee(s). If the application and/or additional documents are not completed or submitted, the application will not be accepted until fully completed. • The City will forward the event application to other departments and agencies for review and comment. o If the event requires closure of City streets, the application is also required to be brought before the City Council during a regular City Council meeting. The applicant will be notified of the date of the meeting and the City Council's decision. o If the event does not require closure of City streets, and there are no concerns or comments from the other departments or agencies, the applicant will be contacted by the City Clerk's office to let them know the event has been approved. If there are questions or concerns by the other departments or jurisdictions, the applicant will be contacted to address these concerns. • Depending upon the event, other licenses or permits may be required. The Special Event application will instruct the applicant on where to apply for the licenses or permits. • The City will notify the public of the event and ask if there are any concerns regarding impact to property, business, or quality of life. If the City does receive concerns, the event organizer will be contacted to address the concerns. City of Port Orchard I Special Event Application- Revised 211412021 Page 2 of 10 Page 266 of 298 Back to Agenda ORCHARD SPECIAL EVENT PERMIT APPLICATION (PORT ORCHARD MUNICIPAL CODE 5.94 AND 5.96) STANDARD PROCESSING FEE: $50.00 ADDITIONAL EXPEDITED FEE (LESS THAN 90 BUT MORE THAN 30 DAYS BEFORE EVENT): $50.00 Event Information Name of event: Yukon Do It! Winter Edition 2021 Location of event: Port Orchard Waterfront Park Description of event: Run/walk 5K, 1 OK and half marathon, marathon, marathon relay starting at Port Orchard Waterfront Park, out and back along Beach Drive and beyond for the marathon. Will you be charging an entry fee? @Yes ONO Anticipated number of visitors: If yes, how much? $ 30-125 750 Depends on event Date(s) of the Event: Time Open to Public: Sam-3pm Saturday, December 18, 2021 Time Closed to Public: Time Open to Vendors (include setup 4am and teardown): Event Web Site https://runsignup.com/Race/WA/PortOrchard/YukonDolt Type of Event: ❑ Festival 4 Walk/Run ❑ Parade ❑ Vendor Fair ❑ Block Party ❑ Other: Organization Information* Name of Organization Run Amok Racing, Inc. Do you have an active City Business License? @Yes ❑No What is your UBI number? 604-303-2696 Point of Contact Name Ginger Johnson Street Address Mailing Address (if different from street address) 2965 Beach Drive East City State Zip City State Zip Port Orchard WA 98366 Phone Alternate Phone Email 360-621-7303 425-999-0900 runamokracing20l8@gmail.com *Please note the organization information provided may be shared for inquires made on event details City of Port Orchard I Special Event Application - Revised 211412021 Page 3 of 10 Page 267 of 298 Public Health Back to Agenda Food: Will your event have any food service and/or sales? aYes ❑No If yes, how many: Will your event have professional catering? Will your event have food trucks? 1 ❑✓ Yes ❑No If yes, how many: 1 ❑Yes @No If yes, how many: Will your event have food booths or food vendors? ❑Yes NNo If yes, how many: If yes, you must contact the Kitsap Public Health District as they may require a temporary food establishment permit. Visit their website at https://kitsappublichealth.orgIFoodSafetvlfood vendors.php or call (360) 728-2235 for information.. Alcohol: Will alcohol be served at the event? ❑Yes MNo If yes, you must contact the Washington State Liquor and Cannabis Board for a special liquor license. Visit their website at https.Ilicb.wa.gov/or call (360) 664-1600 for information. Garbage and Recycling: Describe your garbage and recycling plan: We will bring in our own heavy duty garbage bags to be placed throughout the start/finish area. We will have a bin for recycling in place. Clean-up Plan: Describe your cleanup plan and who will be responsible (Note: Runs/Walks can only use washable paint for marks on route and must be removed by organization after event has completed): Run Amok Racing, and Ginger Johnson, are personally responsible for cleanup. We will hopefully have volunteers that will assist. We will leave the park as we found it. Restrooms and Sanitation: Describe your restroom and sanitation plan (i.e. number of facilities available including handicap accessible, Sani-cans, wash stations, Port of Bremerton facilities): There will be 7+ sanicans at the start/finish area, along with 2 hand washing stations. This includes and ADA Honeybucket. We will take away trash from the race and leave the parks as we found it. City of Port Orchard I Special Event Application- Revised 211412021 Page 4 of 10 Page 268 of 298 Public Safety Back to Agenda Crowd Control: Please indicate how public safety, traffic, and crowd control will be provided. We will have a lane closure (if permitted) along Beach Drive to Hilldale Road. We have signage, cones, volunteers, flaggers, all in place for safety purposes. We will have 2+ EMTS on site. Will you be requesting police officers for traffic and crowd control? ❑ Yes F No If yes, how many police officers you anticipate will be needed for (a) traffic control and (b) crowd control: With the lane closure, we don't believe it's necessary to have police downtown. POMC 5.94.080'City Assistance' states the chief of police, fire chief, and/or public works director may require any reasonable and necessary traffic control, including requiring non -city staff to serve as certified flagger(s), use of downtown parking lots, police protection and/or emergency medical services to be provide at the special event at the organizer's expense. Resolution 040-18 states Community events or private activities, which have not been previously exempted from reimbursement under prior City ordinance or resolution, and which require enhanced police security shall pay a flat rate of $100 per hour to the City for each commissioned officer and police reserve. The use of commissioned officers and police reserves shall be at the sole discretion of the Chief of Police. Parking Impacts: Have parking impacts been coordinated with neighbors (residential/business)? ❑ Yes P No ❑ Not Applicable If yes, how will parking be provided for participants and visitors (including handicapped parking)? Parking is free downtown. There is also parking at Westbay Center and other locations downtown. I If we get a much larger amount of participants, we may coordinate with SKSH to provide a bus shuttle from the high school. Amplified Sound: Will you have Amplified Sound? A Yes ❑ No ❑ Not Applicable If yes, please note that noise levels generated shall not be in excess of allowable levels, consistent with POMC 9.24.050. For more information please contact the Port Orchard Police Department (360) 876-1700. Tents: Does your event include a tent or membrane structure? 4 Yes ❑ No ❑ Not Applicable If yes, what is the tent size: 1 0X1 O max Does the tent have sides? 11 Yes ❑ No ❑ Not applicable May be required to obtain a permit per POMC 20.204.010 please contact Community Development (360) 874-5533. City of Port Orchard I Special Event Application- Revised 211412021 Page 5 of 10 Page 269 of 298 Use of City Right -of -Way and Parking Impacts Back to Agenda Use of State Highway: Will this event require closure of a State Highway Street (Bay Street/SR166)? 4 Yes ❑ No For State Highway Closures (Bay Street), the sponsoring organization must submit the application to the city at least 120 calendar days before the event date. Upon city approval of the event, the sponsoring organization shall seek permission from the Washington State Department of Transportation (WSDOT) by completing an online application. Once permission is granted from WSDOT, a copy of the Letter of Acknowledgment or an Agreement will need to be provided to the city. WSDOrs online application is located at. https://www.wsdot.wa.gov/contact/events/special-events Use of City Right -of -Way: Port Orchard Municipal Code 5.94.020(7) states "Right-of-way (ROW)" means any road, public parking lot, city street, highway, boulevard or place in the city open as a matter of right to public travel and shall include arterials, neighborhood streets, alleys, bicycle paths and pedestrian ways; including streets or portions thereof which are designated as portions of the state highway system." Will this event require closure of any of the below closures? A Yes ❑ No If yes, indicate what type of City right-of-way is requested to be closed and the location (select all that apply): ❑ City Parks: ❑ Van Zee Park ❑Paul Powers Park ❑ Parking Lots: ❑ Lot 1: between Orchard and Frederick streets on the north side of Bay Street ❑Lot 2: between Frederick Street and Sidney Avenue, north of Bay St. ❑McCormick Village Park ❑Central Park ❑Lot 3: five rows of parking west of Harrison Ave and east of and parallel to the library aLot 4: all parking east of Lot 3 and Harrison Ave and west of the Marina Park ❑Etta Turner Park ❑ Givens Park ❑ Lot 5: all parking on City Hall property in front of the Police department ❑ Lot 6: abutting the landscaped area at the SW corner of the Bay St and Dekalb St intersection ❑Rockwell Park ❑ Lot 7: all parking spaced located on the library property which is limited to library staff only ❑ Lot 8: employee parking lot east of City Hall adjacent to Prospect Alley which is between Kitsap Street and Prospect Street. ASidewalks: The sidewalk along Bay Street from Hi Tide to the sharp corner where the charter boat company is located. 11 Street(s) If requesting street closure, please fill out the closure information below and include a map (indicated on Page 7) of the area impacted. SPECIAL EVENT STREET CLOSURE(S): Street to be closed and/or obstructed: Between which streets/intersections: Date(s) of closure/obstruction: Time(s) of closure/obstruction: Beach Drive Hi Tide beginning of sidewalk to Hilldale (Olney within city limits) 12/18/2021 6:30am through 2pm City of Port Orchard I Special Event Application- Revised 211412021 Page 6 of 10 Page 270 of 298 Site Map Back to Agenda A site map is required to be submitted which includes the following: Vendors: �✓ Yes F�No ❑ Not applicable Beer Garden: Yes allo ❑ Not applicable Signage: PlYes F ]No ❑ Not applicable Tents: ✓❑fes F-1No ❑ Not applicable Public entrances and exits: ZYes F-1No ❑ Not applicable Road closures and detours: aYes F ]No ❑ Not applicable Traffic patterns: Yes F-1No LJ Not applicable Fire Lanes: �✓ Yes F ]No ❑ Not applicable Garbage/Recycling: �✓ Yes F-1No ❑ Not applicable Barricades: ✓ Yes �No El Not applicable First Aid: �✓ Yes —]No ❑ Not applicable Parking: �✓ Yes []110 ❑ Not applicable Restrooms: aYes F-1No ❑ Not applicable If event is a run/walk, list start and stop locations and water/rest stations: A Yes ❑ No ❑ Not applicable Aid stations along Beach Drive outside city limits. 2 mile aid station across from 1989 Beach Drive. 4 mile aid station at Waterman Dock. 3rd aid station at Hilldale and Beach Drive. Downtown Manchester, Yukon Harbor Drive, Harper Dock. City of Port Orchard I Special Event Application- Revised 211412021 Page 7 of 10 Page 271 of 298 Event Signage and Vending Back to Agenda Signage: Are you planning to put up temporary signs? @Yes El No POMC20.132.290 "Temporary sign" (which may include special event sign) means any sign that is used temporarily and is not permanently mounted, painted or otherwise affixed, excluding portable signs as defined by this chapter, including any poster, banner, placard, stake sign or sign not placed in the ground with concrete or other means to provide permanent support, stability and rot prevention. Temporary signs may only be made of nondurable materials including, but not limited to, paper, corrugated board, flexible, bendable or foldable plastics, foamcore board, vinyl canvas or vinyl mesh products of less than 20-ounce fabric, vinyl canvas and vinyl mesh products without polymeric plasticizers and signs painted or drawn with water soluble paints or chalks. Signs made of any other materials shall be considered permanent and are subject to the permanent sign regulations of this chapter. Please contact the Community Development Department at (360) 874-5533 if you have questions or if you need to apply for a sign permit. Vending: YES Did you indicate your event will have vendors? XNes WNo How many anticipated exhibitors/vendors will be at your event?-6 POMC 5.96, if your event has two or more vendors engaged in public property vending, you are required to have a Master Multi -Vendor Event License (MMVEL). The MMVEL fee is $15.00 per day or $200 per month. POMC 5.96.020(3)(a) states the sponsor of the master event shall provide a list of participating vendors, their business names, their addresses and their State Tax Revenue Identification Numbers to the city clerk within three working days after the first day of the operation. • No public vending is allowed within twenty-five (25) feet of any municipal building, monument, or fountain, OR within ten (10) feet of intersection sidewalks. • Vending devices must be removed from vending sites daily between the hours of 10:00 p.m. and 6:00 a.m. • Vending devices and vending sites must always be clean and orderly. The vendor must furnish a suitable refuse container and is responsible for the daily disposal of refuse deposited therein. Refuse containers must be removed each day along with vending devices. • Vendors may engage in public property vending only in the location specified in the public property license. The location shall be deemed the vending site. • Utility service connections are not permitted, except electrical when provided with written permission from the adjacent property owner. Electrical lines are not allowed overhead or lying in the pedestrian portion of the sidewalk. • No mechanical audio or noisemaking devices are allowed, and no hawking is allowed. • A vinyl or canvas umbrella may be added to the vending device, but its open diameter may not exceed eight and one- half feet. Any part of the umbrella must have a minimum of seven feet of vertical clearance to the area on which the vending device stands. • Individual vendor advertising signs may be placed only upon the vending device. Temporary master event advertising signs may be placed as approved by the city engineer; and • No conduct shall be permitted which violates any other section of the Port Orchard Municipal Code. City of Port Orchard I Special Event Application- Revised 211412021 Page 8 of 10 Page 272 of 298 Insurance Back to Agenda The sponsoring organization must provide an insurance certificate, with endorsements, at least 30 days prior to the event with the City of Port Orchard shown as Additional Named Insured with minimum coverage to be as follows: $1,000,000 Liability; $1,000,000 Bodily Injury Special Event Insurance for events held at city -owned facilities can be purchased at eventinsure.hubinternational.com/. Release I certify that the event for which this permit is to be used will not be in violation of any City of Port Orchard ordinance. By applying for this special event permit, the organization or entity obtaining such permit agrees to defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from all claims, injuries, damages, losses, or suits, including attorney fees and costs, arising out of or in conjunction with the activities or operations performed by the applicant or on the applicant's behalf resulting from the issuance of this permit, except for injuries and damages caused by the sole negligence of the City. The information on this form is considered a public record and is subject to public disclosure laws in Chapter 42.56 RCW. I, as the President or Chair of my organization, agree to the terms and conditions listed above. f �� %Z,/)qM-) � Ginger Johnson Signature of President/Chair of Organization Print Name Comments received by: Date final review sent: FOR CITY CLERK'S OFFICE USE ONLY Date $50 Permit Fee Received: 7/29/21 Date Date $50 Expedited Fee Received (if applicable): ❑ Police ❑ Fire ❑ Public Works ❑ Finance ❑ Community Development ❑ Kitsap Transit ❑ Clerk's Office ❑ Health District Date Insurance Certificate(s) Received: Does event require a Master Multi -Vendor License: ❑ Yes ❑ No Number of days: Amount: If Yes: ❑ $15/day fee ❑ $200/monthly fee Date fee paid: City of Port Orchard I Special Event Application- Revised 211412021 Page 9 of 10 Page 273 of 298 Back to Agenda ORCHARD Special Event Permit Application Checklist Please use this list to ensure you have included all supporting documentation with your special event application. If your event coincides with another organizations event in the same location, please provide written approval from the event organizer that indicates their approval of your event. NO EVENTS CONFLICT WITH THIS EVENT. Reviewed Special Event Tool Kit L� Special Event Fee (Check, Cash, Credit Card) (Page 1) ❑ Written approval from property owner if location is on non -City owned property (if applicable) (Page 2) ❑ Health Permits (if applicable) (Page 4) ❑ Special Liquor License (if applicable) (Page 4) ❑ Upon event approval, use of State Highway Letter of Acknowledgment or an Agreement that is received from the Department of Transportation if State Highway is requested to be closed (Page 6) ❑ Completed site map (Page 7) ❑ Master Multi -Vendor Event License fee (if applicable) (Page 8) ❑ Contact Department of Community Development for tent permit (if applicable) (Page 8) ❑ Contact Department of Community Development for sign permit (if applicable) (Page 8) 9 Special Event Application/Release is completed and signed by the President or Chair of organization (Page 9) ❑ Insurance Certificate, with endorsement, provided at least 30 days prior to event date (Page 9) Tips for a successful event ❖ Contact the local media (Kitsap Sun, Port Orchard Independent, etc.). Post information on your social media site. ❖ Contact the Port Orchard Chamber of Commerce. ❖ Attend a City Council meeting to speak during citizen comments letting council and public know of your event. City of Port Orchard I Special Event Application- Revised 211412021 Page 10 of 10 Page 274 of 298 Mitchell Point -.4 -E, w r Yal L 47 Z � lye Lj -.W-, Etta Turner PbrkjOIIO mr 46 ie. .-L 2 ,�)rl-h rd . -6 . t Pa�k yip t i�rf ro do. b rD Satellite - S000le LU E 2nd S1 'f. k wA E 3rd St-- -aw- m m ^ AL rr' E 4th 5('- AL DCdQj J,Upr om btaul I L)k CWanhington-St E Illinois St� CD rn L'r \ a Mitchell Point A N K A-,P-'O L R E T SI L ,,Port Orchard e rfront Park 0 rir o port orchard �rM6- church of god. CEO= i) E-Coflins-Rd LU 0 UvIiIIIIIII"A W111 1 rR ��= 1 I SiDSouthwo hr ' 'rr NJ Aid Station M• II— - •& lb W4 . , 1% hi 147-lr* 30 'p JP All, lkp- 0 fo Page 279 of 298 #Rw t 4V �' Back to Agenda irp d7r. AID STATION MILE 2 1989 BEACM .DR. CIO Al* e Or E VL- y yy,. �,} F /�y. G �k.J1���74�� �Vki Port of a'1 tman Pub Pier c AID STATION MILE 4 WATERMAN PIER .�• ~� dr • � r*r 4' •A_� - GooLI�I 11 .r _ - _ t ■ Pr * v u -1 %IMP ew� 4 A P6 IF - 4w 46 10 '117 jj��J,, lillillw-W AID STATION MILE 6 E. HiL E Illudle OD IP t WIZ, 45P . rd-e Goo I NOW LI ll�ft Back to Agenda jL ;lr lka —'0 . Uum am or 'mr 3 P' WA ,.,hy r" ` Sheridan soD Bremerton 38d Navy Yard City Inlet t Port &wrd Enetai Mile Hill ar Parkwood East Port 1b Orchard a� Fernwood 00 F '. nnAA Fart Ward ester 0�te Park Man ester I South Park Village L . 0 Page 283 of 298 Blake island Marine State Park Southworth i60 1 4� Sneridwi 7, /' a lympir, College F GW Port Orc and �: State Pa rl Sylvan* v --fNiqYlvin vioy Nw, *ch Or jt�: 7 Beat .tneipi 1916 1. E Hillida Ile Rd iic Whest State Par Swo 4r� CL M. l.A man., J.. ECollins Rd� ramerton Page 285 of 298 lOrliKOIRM-0 ;E Harper Hill Rd' =fTQIM�•7K [airF1 J1 * 7 ?- Is t Idarth n Aw 4 Jbimavand c m h rn r `yy 771 rt # 1� /rn Iry - -dl - t ' S AF i e A .. F � SA � I ' ` #yy # + ' - .' �, k �# r .. 7* m ' Back to Agenda241. , dip {� 1 pvj i I µ+ .IN FF k. f # ; F• fur�rrers 1f1 1(ne u Ic - the Port Of here, once_ I e erton aces t race has stated nearest tie 9a ei o af°n' e "J reopen � the baardaI fPi �} • f '. go AF + y - + • . *_4do r ' I' 4+ *r ,� .01 ' .+I •* +' rt Back to Agendz r 1. Peak Performance Timing Trailer 0j {` . Vendors will be placed on sidewalk in front of bleachers. . Tables/canopies for check in/registration and results teat. 4. Sanicans placed by restrooms. 5. Parking lot flagged off to keep general public from driving around the race area. 6. Fire lane kept open . Start/finish line Garbage/ Recycling containers will be placed at different locations through start/finish area, ignage will be placed at Bay/Sidney or intersection an sidewalk, at totem pole, along pedestrian pathway to direct people to the start + area. 1 We are not closing any of the public entrances for cars or pedestrians. First Arid - we will have 2 EMTs at the start/finish line at a minimum. �4W: r dP - irF . a r S *016 .. �. % A , i 0 ,4-, �`. Page 290 of 24 bf a r li 4 r 's - °0 Map da = 2020 Imagery,�2020. Man OTES: MAINTAIN PED. ACCESS TO ,ND THROUGH CROSSWALKS .MAINTAIN MIN 11' LANES .MAINTAIN LOCAL ACCESS .NOTIFY TRANSIT AUTHORITY T LEAST 48HRS. IN ADVANCE 1F BUS STOP CLOUSRE .TRAFFIC CONTROL PLAN AND EVICES SHALL COMPLY WITH MUTCD, ROWAG &WSDOT .DEVICE SPACING LAGGER TAPER 20' IGNS PER WSDOT APERS PER WSDOT .28" CONES 6" BARRELS B" SIGNS 4" PADDLE .ADJUST TO FIELD CONDITIONS WAIT HERE FOR PILOT CAR Waterman 100' /e • 11 100' I 7AHEA BE PREPARED TO STOP Legend Flagger o M4-10 R3-2 no left turn W20-1 road work ahead O W20-2 detour ahead W20-7A Flagger Ahead O W20-7b be prepared to stop WAIT HERE O PILOT CAR L ■ r J-F- < > ■ _i-i 100' ■ BE PREPARED i TO STOP 1ermar00' ROAD WORK i AHEAD WAIT HERE FOR PILOT CAR • i ROAD WORK AHEAD T 100' BE PREPARED TO STOP 100' • T • 100' BE PREPARED TO STOP 100' ROAD WORK i AHEAD Manifest 21 x Sign Stand 10 x R3-2 no left turn 10 x W20-1 roadwork ahead 7 x M4-10 5 x W20-7A Flagger Ahead 5 x W20-7b be prepared to stop 3 x RNV30-2 WAIT FOR PILOT CAR 3 x W20-2 detour ahead 1>1 00, BE PREPARED C�$�� O STOP rn 100' ROAD WORK i AHEAD K&D SERVICES, AS THE PREPARER OF THIS TRAFFIC CONTROL PLAN MAKES NO REPRESENTATION AS TO ITS' GENERAL ADEQUACY OR BEING APPROVED FOR IMPLEMENTATION. APPROVAL MUST RESULT FROM TRAFFIC ENGINEER OR OTHER PUBLIC OFFICIAL HAVING STATUTORY ENFORCEMENT AUTHORITY IN THE JURISDICTION. UTILIZATI9N P �VIENTATION OF THIS PLAN SHALL BE A RESUM5 i APPROVAL. REF. MUTCD 2009 6A-01(10) Back to Agenda W S NOT TO SCALE NOTIFY EMS, FIRE AND POLICE 72 HOURS IN ADVANCE PLEASE SCHEDULE WITH DISPATCH @800-343-4049 OPTA AND PROVIDE A COPY OF THE APPROVED TRAFFIC CONTROL PLAN M.anche-s SatePZ"; CUSTOMER: RUN AMOK RACING CONTACT- GINGER JOHNSON 360-621-7303 LOCATION: 1371 BAY ST PORT ORCHARD, WA DATE: W/O # 06/15/21 SUMMER RUN n& D SERVICES TRAFFIC MANAGEMENT DESIGNED BY ISAI_A `H,M/ ARTINEZ OFFICE: 800-343-4049 CELL: 425-530-9162 WATCP@KNDSERVICES.NET WSTCS#011748 www.invarion.com NOTES: 1. MAINTAIN PED. ACCESS TO AND THROUGH CROSSWALKS 2.MAINTAIN MIN 11' LANES 3.MAINTAIN LOCAL ACCESS 4.NOTIFY TRANSIT AUTHORITY AT LEAST 48HRS. IN ADVANCE OF BUS STOP CLOUSRE 53RAFFIC CONTROL PLAN AND DEVICES SHALL COMPLY WITH MUTCD, PROWAG &WSDOT 6.DEVICE SPACING FLAGGER TAPER 20' SIGNS PER WSDOT TAPERS PER WSDOT 7.28" CONES 36" BARRELS 48" SIGNS 24" PADDLE &ADJUST TO FIELD CONDITIONS WAIT HERE BE FOR PREPARED PILOT CAR d6 TO STOP ROAD WORK AHEAD WAIT HERE FOR PILOT CAR i i D P Legend ' Flagger R3-2 no left turn W20-1 road work ahead W20-7A Flagger Ahead O W20-7b be prepared to stop Manifest 28 x Sign Stand 7 x W20-1 road work ahead 6 x W20-7A Flagger Ahead 6 x W20-7b be prepared to stop 5 x R3-2 no left turn 5 x RNV30-2 WAIT FOR PILOT CAR ROAD WORK AHEAD F- Callir K&D SERVICES, AS THE PREPARER OF THIS TRAFFIC CONTROL PLAN MAKES NO REPRESENTATION AS TO ITS' GENERAL ADEQUACY OR BEING APPROVED FOR IMPLEMENTATION. APPROVAL MUST RESULT FROM TRAFFIC ENGINEER OR OTHER PUBLIC OFFICIAL HAVING STATUTORY ENFORCEMENT AUTHORITY IN THE JURISDICTION. UTILIZATION & IMPLEMENTATION OF THIS PLAN SHALL BE A RESULT OF THAT APPROVAL. REF. MUPTWq%A-01(10) Back to Agenda E S NOT TO SCALE NOTIFY EMS, FIRE AND POLICE 72 HOURS IN ADVANCE PLEASE SCHEDULE WITH DISPATCH @800-343-4049 OPTA AND PROVIDE A COPY OF THE APPROVED TRAFFIC CONTROL PLAN CUSTOMER: RUN AMOK RACING CONTACT- GINGER JOHNSON 360-621-7303 LOCATION: 1371 BAY ST PORT ORCHARD, WA DATE: W/O # 06/15/21 SUMMER RUN K & ❑ SERVICES TRAFFIC MANAGEMENT DESIGNED BY ISAIAH MARTINEZ OFFICE.,800.343.4049 _ \ CELL:425-530.9162 WATCP@KNDSERVICES.NET WSTCS#011748 C www.invarion.com DOTES: I. MAINTAIN PED. ACCESS TO aND THROUGH CROSSWALKS !.MAINTAIN MIN 11' LANES (.MAINTAIN LOCAL ACCESS I.NOTIFY TRANSIT AUTHORITY kT LEAST 48HRS. IN ADVANCE )F BUS STOP CLOUSRE i.TRAFFIC CONTROL PLAN AND )EVICES SHALL COMPLY WITH MUTCD, 'ROWAG &WSDOT i.DEVICE SPACING =LAGGER TAPER 20' SGNS PER WSDOT PAPERS PER WSDOT '.28" CONES I6" BARRELS W' SIGNS W' PADDLE {.ADJUST TO FIELD CONDITIONS Manifest 42 x Sign Stand 12 x W20-1 road work ahead 11 x W20-7A Flagger Ahead 11 x W20-7b be prepared to stop 7 x R3-2 no left turn 7 x RNV30-2 WAIT FOR PILOT CAR 1 x Arrow Board PCMS BOARD USE FOOT CAUTION TRAFFIC EXPECT AHEAD LONG DELAYS 2.0 SEC 2.0 SEC FIELD LOCATE 1 MILE (+I-) IN ADVANCE OF LANE CLOSURE (PCMS BOARDS BOTH DIRECTIONS) 100' I 1 ' 1�3-, 100' Ir 0 BE PREPARED r TO STOP p0q . `InAHEAD Jrd 0 WAIT HERE • FOR PILOT CAR 100, BE PREPARED • TO STOP 100, i 100, i ROAD WORK BE AHEAD PREPARED 100 TO STOP i i ROAD WORK AHEAD K&D SERVICES, AS THE PREPARER OF THIS TRAFFIC CONTROL PLAN MAKES NO REPRESENTATION AS TO ITS' GENERAL ADEQUACY OR BEING APPROVED FOR IMPLEMENTATION. APPROVAL MUST RESULT FROM TRAFFIC ENGINEER OR OTHER PUBLIC OFFICIAL HAVING STATUTORY ENFORCEMENT AUTHORITY IN THE JURISDICTION. UTILIZATION & IMPLEMENTATION OF THIS PLAN SHALL BE A RESULT OF THAT APPROVAL. REF. MUTCD 2009 6A-01(10) Page 293 of 298 Legend ••• Arrow Board " Flagger R3-2 no left turn W20-1 road work ahead O W20-7A Flagger Ahead O W20-7b be prepared to stop I I . WAIT HERE LFOR PILOT CAR �v /X 100, M-41-e HJ11-DI, Back ti 110 NOT TO SCALE NOTIFY EMS, FIRE AND POLICE 72 HOURS IN ADVANCE ASE SCHEDULE H DISPATCH C@800-343-4049 OPTA AND PROVIDE A COPY OF THE APPROVED ' TRAFFIC CONTROL PLAN WAIT HERE FOR PILOT CAR r i BE 100' PREPARED TO STOP 100, i ROAD • WORK AHEAD CUSTOMER: RUN AMOK RACING CONTACT: GINGER JOHNSON 360-621-7303 LOCATION: 1371 BAY ST PORT ORCHARD, WA DATE: W/O # 06/15/21 SUMMER RUN 10-7 l J K & D SERVICES l �J TRAFFIC MANAGEMENT DESIGNED BY ISAIAH MARTINEZ OFFICE.800-343-4049 n _ CELL:425-530-9162 U� WATCP@KNDSERVICES.NET WSTCS#011748 www.invarion.com Back to Agenda CITY OF PORT ORCHARD Public Works Director 216 Prospect Street, Port Orchard, WA 98366 Voice: (36o) 876-4991 • Fax: (36o) 876-498o mdorsey@cityofportorchard.us www.cityofportorchard.us PUBLIC EVENT APPLICATION REVIEW TO: City Clerk's Office FROM: Mark R. Dorsey, P.E. - Public Works Director/City Engineer DATE: September 10, 2021 RE: Public Event Application — 2021 Yukon Do It Run Fall Edition In response to the above referenced Public Events Application dated July 29, 2021, the City of Port Orchard Public Works Department recommends approval of the event application with the following requirements; It is understood that on Saturday, December 18, 2021, the participants will commence with the run/walk at the POB Waterfront Park and will utilize the Bay Street Pedestrian Pathway (Segments #2 thru #5) to Westbay Center, then will continue to the north and east using the westbound lane of Bay Street E/Beach Drive from Westbay Center to Olney, then continuing to Manchester; then back using the same Bay Street E/Beach Drive lane and Pathway route to the finish line back at the POB Waterfront Park. This eliminates the need for a SR 166/Bay Street road closure. Sanitation Control: Even sponsor and/or volunteers to provide garbage cans for both collection and disposal. Event sponsor and/or volunteers will also provide portable toilets as needed. Road Closures: Between 6:3o AM to 2:00 PM as follows; o Westbound Bay Street East/Beach Drive from Olney Ave. E. to Guy Wetzel Avenue, along with corresponding left turn restrictions at Tracy Avenue, Retsil Avenue, Arnold Avenue and the Retsil Veteran's Home. Waterfront Lot Closures: Between 4:oo AM to 3:oo AM as follows; o Waterfront Lot #4. Event cleaning: Along with end of event clean-up, even sponsors and/or volunteers will provide sanitation control and garbage collection/disposal as noted above. Page 294 of 298 Back to Agenda Brandy Rinearson From: Matt Brown Sent: Thursday, October 7, 2021 1:24 PM To: Brandy Rinearson Subject: RE: Yukon Do it - Fall Thanks, sorry. The police department approves the special application permit for the Yukon Do It! Winter Edition 2021 event. The traffic control plan is comprehensive and appears appropriate. The organizers have two EMTs staffing the event to provide medical aid. The crowd size of 750 appears to be small enough not to trigger extra police officers in the area. The police department reserves the right to require the assignment of officers should the event grow in size. Thanks, Matt Brown, Chief of Police Port Orchard Police Department 546 Bay St. Port Orchard, WA 98366 (360) 876.1700 SERVICE ■ HONOR • INTEGRITY ****The information contained in this e-mail message may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this e-mail message in error, please notify the sender via e-mail or telephone at 360.876.1700.**** From: Brandy Rinearson <brinearson@cityofportorchard.us> Sent: Thursday, October 7, 2021 1:19 PM To: Matt Brown <mbrown@cityofportorchard.us> Subject: RE: Yukon Do it - Fall Just a reminder ... I need your comments/memo. Thanks. Best Wishes, Brandy Rinearson, MMC, CPRO City Clerk/Assistant to the Mayor City of Port Orchard Direct (360) 876-7030 Fax (360) 895-9029 www.citV_ofportorchard.us City Hall is open to the public, Monday through Friday Sam to 4:30pm. Emergency services are available 24 hours a day by calling 911. I Page 295 of 298 Back to Agenda CITY OF PORT ORCHARD DEPARTMENT OF COMMUNITY DEVELOPMENT 216 Prospect Street, Port Orchard, WA 98366 Phone: (36o) 874-5533 • planning@ cityofportorchard.us Date: September 8, 2021 To: Brandy Rinearson, City Clerk From Lisa Stone, Building Permit Technician RE: 2021 Event Application for Yukon Do It! Winter Edition The Department of Community Development has reviewed the 2021 Public Event application for the following event: Public Event Application Date: Location: Organization: Yukon Do It! Winter Edition December 18, 2021 Port Orchard Waterfront Park Run Amok Racing, Inc DCD has the following comments on this application. Event Signage Requirements: 1. All such temporary signage shall be subject to the requirements of Port Orchard Municipal Code 20.132.270. 2. For further signage information, please contact the City of Port Orchard Department of Community Development at (360) 874-5533. Page 296 of 298 Back to Agenda Brandy Rinearson From: Dayna Katula <Dayna.Katula@kitsappublichealth.org> Sent: Tuesday, September 7, 2021 12:23 PM To: Brandy Rinearson Subject: RE: Special Event -Yukon Do It! Winter Edition Hi Brandy, The applicant has indicated that they are going to have food vendors at their event. The food vendors may need a food service establishment permit with the Kitsap Public Health District. The applicant should send a list of their vendors to dayna.katula@kitsappublichealth.cpm at least 14 days prior to the event. If they have any questions, they can call 360- 728-2235 and ask for the Food Inspector of the Day. I also did not see where the on the maps the food vendors will be stationed. The applicant must make sure the food booths are within 200 ft of a restroom (toilet and handwashing). Thanks! Dayna Katula, RS I Program Manager Food & Living Environment Program Kitsap Public Health District 345 6th St., Suite 300 1 Bremerton, WA 98337 (360) 728-2301 Office 1 (360) 633-9018 Cell 1 (360) 728-2235 Main Dayna.Katula@kitsappublichealth.org I kitsappublichealth.or� U From: Brandy Rinearson <brinearson@cityofportorchard.us> Sent: Tuesday, September 7, 2021 12:06 PM To: Wiggins, Bradley <BWiggins@skfr.org>; Donna Main <dmain @cityofportorchard.us>; Dayna Katula <Dayna.Katula@kitsappublichealth.org>; Kevin Futrell <kevinf@kitsaptransit.com>; Mark Dorsey <mdorsey@cityofportorchard.us>; Matt Brown <m brown @cityofportorcha rd.us>; Ellen Ferguson <eferguson@cityofportorchard.us>; Tony Lang <tlang@cityofportorchard.us>; Lisa Stone <Istone@cityofportorchard.us> Cc: Jenine Floyd <jfloyd@cityofportorchard.us>; Kathy Garcia <kathyg@portofbremerton.org> Subject: Special Event -Yukon Do It! Winter Edition 1 Page 297 of 298 Back to Agenda Brandy Rinearson From: Dayna Katula <Dayna.Katula@kitsappublichealth.org> Sent: Tuesday, September 7, 2021 12:26 PM To: Brandy Rinearson Subject: RE: Special Event -Yukon Do It! Winter Edition Hi Again, Please disregard my comment about not showing the food vendors on the maps. I'm assuming food will be with the rest of the vendors by the bleachers. Thanks! Dayna From: Brandy Rinearson <brinearson@cityofportorchard.us> Sent: Tuesday, September 7, 2021 12:06 PM To: Wiggins, Bradley <BWiggins@skfr.org>; Donna Main <d main @cityofportorcha rd.us>; Dayna Katula <Dayna.Katula@kitsappublichealth.org>; Kevin Futrell <kevinf@kitsaptransit.com>; Mark Dorsey <mdorsey@cityofportorchard.us>; Matt Brown <mbrown @cityofportorchard. us>; Ellen Ferguson <eferguson@cityofportorchard.us>; Tony Lang <tlang@cityofportorchard.us>; Lisa Stone <Istone@cityofportorchard.us> Cc: Jenine Floyd <jfloyd@cityofportorchard.us>; Kathy Garcia <kathyg@portofbremerton.org> Subject: Special Event -Yukon Do It! Winter Edition CAUTION 1 : This email originated from outside Kitsap Public Health District. Do not click links or open attachments unless you are expecting this email. If you are unsure please contact IT. Good afternoon, Attached is a Special Event application and supporting documents for the Yukon Do it! Winter Edition, taking place on Saturday, December 18, 2021. Please review and provide me your comments by 9/21/2021 (Fire by 10/6/2021). Please let me know if you have any questions or need anything further. Best Wishes, Brandy Rinearson, MMC, CPRO City Clerk/Assistant to the Mayor City of Port Orchard Direct (360) 876-7030 Fax (360) 895-9029 www.citvofportorchard.us City Hall is open to the public, Monday through Friday Sam to 4:30pm. Emergency services are available 24 hours a day by calling 911. 1 Page 298 of 298