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HomeMy WebLinkAbout5.769 Original Contract 5.7wQ AGREEMENT iP ' THIS AGREEMENT is entered into this Jf:.. day of July, 2008, by and between the City of Port Angeles, Washington, a municipal corporation, hereinafter called "City", and the Clallam ~ . " Business Incubator, Inc. (hereafter "CBI"), a non-profit corporation, hereinafter called I "Contractor. " WHEREAS, the City is a municipal corporation of the State of Washington authorized to contract for economic development services; and, WHEREAS, it is in the public interest for economIC development activities to be performed that will enhance the economy and employment opportunities in the City of Port Angeles; and, WHEREAS, the City has need of assistance in regard t6 these and other aspects of its operations; and, Whereas, CBI was formed to promote, manage and operate a business incubator facility intended to provide economic development and enhancement opportunities for the community; and, Whereas, CBI was sponsored by the City and other governmental entities in Clallam County to provide opportunities and education to promote new business, NOW, THEREFORE, in consideration of the above ~epresentations and the mutual covenants and agreements herein, the parties agree as follows: - 1 - , 1. PERFORMANCE BY THE CONTRACTOR. A. Training and Support Activities. , (1) Contractor will offer and make readily available entrepreneurial training and support activities for the purpose of expanding opportunities for economic growth in the community. ' (2) Contractor will make frequent presentations to inform community and regional groups about the programs and opportunities available through its resources. (3) Contractor will collaborate with other governmental organizations serving the City on economic development strategies, initiatives, research, and education. (4) Contractor will maintain communication with key contact persons on a regular basis to assure the strength of the relationstIips and to assure that Contractor is furthering the City's goals of promoting economic growth. (5) Contractor will provide periodic publicity 'and press releases concerning its activities, particularly as they relate to programs apd opportunities available to new small businesses and for the positive economic development in Port Angeles. B. Develop Economic and Employment Opportunities. The Contractor shall promote and enhance economic development and employment opportunities in the City in accordance with its mission and goals and shall market its resources, facilities and capabilities to new and existing businesses with the goals of increasing City revenues and employment opportunities for City residents. C. Business Retention and Expansion. (1) The Contractor shall work cooperatively with the City for business retention and expansion for the City. (2) The Contractor shall, upon request, provide guidance and services to City staff in the development and execution of municipal programs aimed at better planning, utilization, promotion, and advertisement of City services, facilities, infrastructure, and property for the purpose of job creation and economic development. (3) The Contractor shall maintain and enhance working relations with new entrepreneurs and existing businesses to assist them with start-up and expansion - 2 - needs, technical assistance, access to business counseling and financing resources including aid and assistance to at-risk businesses. (4) The Contractor shall assist the City in 'applying for and administering economic development related grants, especially any potential to support the entrepreneurial training and development. (5) Contractor will solicit private, individual, and corporate funding, in addition to pursuing appropriate grants and other public funding, in order to enhance programs and supplement funds for its programs. i D. Records. The Contractor shall maintain records and report to the City as follows: (1) The Contractor shall maintain accounts a1?-d records that accurately reflect the revenues and costs for the Contractor's activities under this Contract. These financial records, and all records related to the performance of this Contract, shall . . I . be available for City inspection. (2) The Contractor shall provide the City with written reports monthly, fully describing what work has been performed pursuant to this Contract, and including a current statement of revenues and costs. (3) The Contractor's Director shall appear before the City Council at least quarterly to report on the Contractor's activities and planned future activities pursuant to this agreement and to answer questions. (4) The Contractor shall use its best efforts to economize on overhead expenses to the maximum extent feasible in providing the services to be performed pursuant to this Contract. ' (5) The Contractor shall provide the City with an annual budget, including current salaries and benefits for all employees and classifications of employees and shall notify the City within 30 days of any increases in salaries or benefits from the prevIOUS year. E. Other Task Orders. From time to time, the City may add task orders to this contract for specific projects within the scope and expertise of the Contractor including, but not limited to (1) strategic planning, and (2) industrial and commercial redevelopment assistance. The Contractor shall not perform any such work until given a specific task order that authorizes such work and describes the scope of work to be performed and the project budget. - 3 - 2. PAYMENTS BY THE CITY. A. For the services to be rendered by the Contractor, the City will provide payment as follows: 1. Task Items A. B. C and D. In consideration of the services to be performeq with respect to Training and Support Activities; Development of Economic and Employment Opportunities; Business Retention and Expansion; and Recordkeeping, upon receipt and acceptance by the City Manager or designee of the Contractor's monthly invoices, the City will reimburse the Contractor for service,s rendered in amounts stated in Exhibit A for each calendar year, which is subject to change on a year-to-year basis depending upon the City budget. Contractor shall submit its proposed Exhibit A each year no later than August 31 st for consideration as part of the City's budget process. Exhibit A for 2009 will be adopted as part of the 2009 budget process. An Exhibit A for subsequent years will be developed through the budget process for each year. 2. Task Item E. The City will also pay to the Contractor the additional sum as listed on Exhibit A for Other Task Orders. B. Payments shall be made in four, equal, quarterly installments. Payment by the City shall be due upon receipt and acceptance by the City Manager of the Contractor's written quarterly report. The Contractor will invoice the City for all quarterly payments. C. Nothing contained in this agreement shall be construed as (1) binding the City to expend in anyone calendar year any sum in excess of appropriations made by the City in its budget process for the purposes of this agreement for that calendar year or (2) obligating the City to further expenditure of money in excess of such appropriations. 3. TERM. The performance of the Contractor shall commence on January 1,2009, and continue until December 31, 2012; provided, however, that this Contr(;lct may be terminated by either party at any time and without cause by giving to the other party at least 90 days written notice of termination. - 4 - 4. ASSIGNMENT. This agreement may not be assigned by either party excep~ with prior written consent of the ~cr. ' 5. BREACH. A. In the event of either party's material breach of: the terms or conditions of this Contract, the non-breaching party reserves the :right to withhold payments or services until corrective action has been taken or' completed. However, the party shall not exercise this right until they have given written notice of such material breach to the breaching party and ten days have 'passed since the receipt of such notice. This option is in addition to and not in lieu of the parties' right to terminate this Contract or any other right that State law offer~ for breach of contract. B. If either party shall materially breach any of the covenants undertaken herein or any of the duties imposed upon it by this Contract, such material breach shall entitle the other party to terminate this Contract, provided that the party desiring to terminate for such cause shall give the offending party at least twenty days' written notice, specifying the' particulars wherein it is claimed that there has been a violation hereof, and if at the end of such time, the party notified has not removed the cause of complaint, or remedied the purported violation, then the termination of this Contract shall be deemed complete. 6. NON-DISCRIMINATION. A. The Contractor shall conduct its business in a m3l}Iler which assures fair, equal and non-discriminatory treatment of all persons, without respect to race, creed or national origin, and, in particular: : B. The Contractor shall maintain open hiring and I employment practices and will welcome applications for employment in all positions, from qualified individuals who are members of minorities protected by federal equal opportunity/affirmative action requirements; and, , C. The Contractor shall comply with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto~ relating to the establishment of non-discriminatory requirements in hiring and employment practices and assuring the service of all persons without discrimination as to any person's race, color, religion, sex, Vietnam era veteran's status', disabled veteran condition, physical or mental handicap, or national origin. : - 5 - 7. DISPUTE RESOLUTION. The parties agree that any dispute related to this Agreem~nt shall first be submitted to the City Manager and the Contractor's Executive Director, and they shall attempt to resolve that dispute. If the City Manager and Executive Director are not able to resolve that dispute, the dispute shall next be submitted to the City .Council and to the Contractor's Board of Directors. Those entities shall attempt to resolve the dispute. If they are not able to resolve the dispute, the dispute shall be submitted to mediation. The parties shall agree on one mediator. If mediation is unable to resolve the dispute, then either party may take such legal action as they deem appropriate. The venue of any lawsuit related to this Agreement shall be in Clallam County, Washington. 8. INDEPENDENT CONTRACTOR STATUS. i The relation created by this Contract is that of independent contracting entItIes. The Contractor is not an employee of the City and is not entitled to the benefits provided by the City to its employees. The Contractor, as an independent Contractor, has the authority to control and direct the performance of the details of the services to be provided. The Contractor shall assume full responsibility for payment of all Federal, State, and local taxes or contributions imposed or required, including, but I not limited to, unemployment insurance, Social 'Security, and income tax. 9. HOLD HARMLESS AND INSURANCE. Indemnification/Hold Harmless Contractor shall defend, indemnify and hold the City, its 'officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorriey fees, arising out of or resulting from the acts, errors or omissions of the Contractor in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. No Limitation. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. - 6 - A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering a,ll owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coyerage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 Oland shall cover liability arising from premises, operations, independent I contractors, and personal injury and advertising injury. The City shall be named as an insured under the Contractor's Commercial General LiabiIity insurance policy with respect to the work performed for the City. I 3. Workers' Compensation coverage as required by the Industrial Insurances laws of the State of Washington. 4. Professional Liability insurance appropriate to the Contractor's profession. I B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a miJ;1imum combined single limit for bodily injury and property damage of $1 ,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be .written with limits no less than I $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to 'contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability msurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurarice pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. - 7 - - D. Acceptability of Insurers Insurance is to be placed with insurers with a current ~.M. Best rating of not less than A:VII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. 10. ENTIRE CONTRACT. , The parties agree that this Contract is the complete expre~sion of the terms hereto and any oral representation or understanding not incorporated h:erein is excluded. Further, any modification of this Contract shall be in writing and signe<;l by both parties. IN WITNESS WHEREOF, the parties hereto caused this Contract to be executed the day and year first herein above written. i CITY OF PORT ANGELES u? By: ~~~ Mayor ATTEST: APP OVED AS TO FO~ '( /~. /!-~_.. William E. Bloor, Cit Att6rney , , CLALLAM BUSINr:SS INCUBATOR, INC. By: ~ Mike Rausch Vice Pres~dent Title: Secretary~Treasurer G :\Legal_ Backup\AGREEMENTS&CONTRACTS\2008 Agmts&Contracts\CB I-N 02. 042408.ddc 711 0/2008 - 8 - J ~aL. J~-Jl.P-O~ ~ ~~. . Clallam Business Incubator City of Port Angeles Contract - Exhibit A 2009 Contract Deliverables - $85,000 · Conduct a business incubation program within the City limits of Port Angeles o Target of at least 10 Lincoln Center participants o Target of at least 5 Virtual Incubator participants · In partnership with Peninsula College deliver an entrepreneurship education program available to Port Angeles Entrepreneurs. o Enrollment target of at least 120 during the year · Coordinate and conduct 25 business networking events in Port Angeles · Provide a program delivering business planning and support services to Port Angeles businesses to increase profitability, performance and growth o Target at least 10 business contacts per month · Deliver a quarterly report to the City of Port Angeles City Council outlining CBl's performance against the benchmarks of this agreement. . · Provide an end of year "Port Angeles: State of Entrepreneurship Report" including presentation before the City Council . G -13 5. i/iJ q AGREEMENT THIS AGREEMENT is entered into this Jf:LiAuay of ~, 2008, by and between the City of Port Angeles, Washington, a municipal corporation, hereinafter called "City", and the Clallam Business Incubator, Inc. (hereafter "CBI"), a non-profit corporation, hereinafter called "Contractor." WHEREAS, the City is a municipal corporation of the State of Washington authorized to contract for economic development services; and, WHEREAS, it is in the public interest for economIC development activities to be performed that will enhance the economy and employment opportunities in the City of Port Angeles; and, WHEREAS, the City has need of assistance in regard to these and other aspects of its operations; and, Whereas, CBI was formed to promote, manage and operate a business incubator facility intended to provide economic development and enhancement opportunities for the community; and, Whereas, CBI was sponsored by the City and other governmental entities in Clallam County to provide opportunities and education to promote new business, NOW, THEREFORE, in consideration of the above representations and the mutual covenants and agreements herein, the parties agree as follows: - 1 - 1. PERFORMANCE BY THE CONTRACTOR. A. Training and Support Activities. (1) Contractor will facilitate entrepreneurial training and support activities for the purpose of expanding opportunities for economic growth in the community. (2) Contractor will make frequent presentations to inform community and regional groups about the programs and opportunities available through its resources. (3) Contractor will collaborate with other governmental organizations serving the City on economic development strategies, initiatives, research, and education. (4) Contractor will maintain communication with key contact persons on a regular basis to assure the strength of the relationships and to assure that Contractor is furthering the City's goals of promoting economic growth. (5) Contractor will provide periodic publicity and press releases concerning its activities, particularly as they relate to programs and opportunities available to new small businesses and for the positive economic development in Port Angeles. B. Develop Economic and Employment Opportunities. The Contractor shall promote and enhance economic development and employment opportunities in the City in accordance with its mission and goals and shall market its resources, facilities and capabilities to new and existing businesses with the goals of increasing City revenues and employment opportunities for City residents. C. Business Retention and Expansion. (1) The Contractor shall work cooperatively with the City for business retention and expansion for the City. (2) The Contractor shall, upon request, provide guidance and services to City staff in the development and execution of municipal programs aimed at better planning, utilization, promotion, and advertisement of City services, facilities, infrastructure, and property for the purpose of job creation and economic development. (3) The Contractor shall maintain and enhance working relations with new entrepreneurs and existing businesses to assist them with start-up and expansion needs, technical assistance, access to business counseling and financing resources - 2 - including aid and assistance to at-risk businesses. (4) The Contractor shall assist the City in applying for and administering economic development related grants, especially any potential to support the entrepreneurial training and development. (5) Contractor will solicit private, individual, and corporate funding, in addition to pursuing appropriate grants and other public funding, in order to enhance programs and supplement funds for its programs. D. Records. The Contractor shall maintain records and repol}" to the City as follows: (1) The Contractor shall maintain accounts and records that accurately reflect the revenues and costs for the Contractor's activities under this Contract. These financial records, and all records related to the performance of this Contract, shall be available for City inspection. (2) The Contractor shall provide the City with written reports monthly, fully describing what work has been performed pursuant to this Contract, and including a current statement of revenues and costs. (3) The Contractor's Director shall appear before the City Council at least quarterly to report on the Contractor's activities and planned future activities pursuant to this agreement and to answer questions. (4) The Contractor shall use its best efforts to economize on overhead expenses to the maximum extent feasible in providing the services to be performed pursuant to this Contract. (5) The Contractor shall provide the City with an annual budget, including current salaries and benefits for all employees and classifications of employees and shall notify the City within 30 days of any increases in salaries or benefits from the prevIOUS year. E. Other Task Orders. From time to time, the City may add task orders to this contract for specific projects within the scope and expertise of the Contractor including, but not limited to (1) strategic planning, and (2) industrial and commercial redevelopment assistance. The Contractor shall not perform any such work until given a specific task order that authorizes such work and describes the scope of work to be performed and the project budget. - 3 - 2. PAYMENTS BY THE CITY. A. For the services to be rendered by the Contractor, the City will provide, payment as follows: 1. For Task Items A, B, C and D a total of $85,000 per calendar year. 2. For Task Item E an amount not-to-exceed $15,000 per calendar year. B. Payments shall be made in four, equal, quarterly installments. Payment by the City shall be due upon receipt and acceptance by the City Manager of the Contractor's written quarterly report. The Contractor will invoice the City for all quarterly payments. 3. TERM. This agreement shall be for a term commencing on the date it is signed by both parties and ending December 31, 2008. 4. ASSIGNMENT. This agreement may not be assigned by either party except with prior written consent of the other. 5. BREACH. A. In the event of either party's material breach of the terms or conditions of this Contract, the non-breaching party reserves the right to withhold payments or services until corrective action has been taken or completed. However, the party shall not exercise this right until they have given written notice of such material breach to the breaching party and ten days have passed since the receipt of such notice. This option is in addition to and not in lieu of the parties' right to terminate this Contract or any other right that State law offers for breach of contract. B. If either party shall materially breach any of the covenants undertaken herein or any of the duties imposed upon it by this Contract, such material breach shall entitle the other party to terminate this Contract, provided that the party desiring to terminate for such cause shall give the offending party at least twenty days' written notice, specifying the particulars wherein it is claimed that there has been a violation hereof, and if at the end of such time, the party notified has not removed the cause of complaint, or remedied the purported violation, then the termination of this Contract shall be deemed complete. - 4 - 6. NON-DISCRIMINATION. A. The Contractor shall conduct its business in a manner which assures fair, equal and non-discriminatory treatment of all persons, without respect to race, creed or national origin, and, in particular: B. The Contractor shall maintain open hiring and employment practices and will welcome applications for employment in all positions, from qualified individuals who are members of minorities protected by federal equal opportunity/affirmative action requirements; and, C. The Contractor shall comply with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto, relating to the establishment of non-discriminatory requirements in hiring and employment practices and assuring the service of all persons without discrimination as to any person's race, color, religion, sex, Vietnam era veteran's status, disabled veteran condition, physical or mental handicap, or national origin. 7. DISPUTE RESOLUTION. The parties agree that any dispute related to this Agreement shall first be submitted to the City Manager and the Contractor's Executive Director, and they shall attempt to resolve that dispute. If the City Manager and Executive Director are not able to resolve that dispute, the dispute shall next be submitted to the City Council and to the Contractor's Board of Directors. Those entities shall attempt to resolve the dispute. If they are not able to resolve the dispute, the dispute shall be submitted to mediation. The parties shall agree on one mediator. If mediation is unable to resolve the dispute, then either party may take such legal action as they deem appropriate. The venue of any lawsuit related to this Agreement shall be in Clallam County, Washington. 8. INDEPENDENT CONTRACTOR STATUS. The relation created by this Contract is that of independent contracting entities. The Contractor is not an employee of the City and is not entitled to the benefits provided by the City to its employees. The Contractor, as an independent Contractor, has the authority to control and direct the performance of the details of the services to be provided. The Contractor shall assume full responsibility for payment of all Federal, State, and local taxes or contributions imposed or required, including, but not limited to, unemployment insurance, Social Security, and income tax. - 5 - 9. HOLD HARMLESS AND INSURANCE. Indemnification/Hold Harmless Contractor shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the acts, errors or omissions of the Contractor in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. No Limitation. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 Oland shall cover liability arising from premises, operations, independent contractors, and personal injury and advertising injury. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers' Compensation coverage as required by the Industrial Insurances laws of the State of Washington. 4. Professional Liability insurance appropriate to the Contractor's profession. - 6 - B. Minimum Amounts ofInsurance Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1 ,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability msurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. - 7 - 10. ENTIRE CONTRACT. The parties agree that this Contract is the complete expression of the terms hereto and any oral representation or understanding not incorporated herein is excluded. Further, any modification of this Contract shall be in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto caused this Contract to be executed the day and year first herein above written. CITY OF PORT ANGELES CLALLAM BUSINESS INCUBATOR, INC. By: ~,/~ I Mayor ATTEST: I) 0 d?c~ J !f5tD^- Becky J. U n, ty Cler APPROVED AS TO FORM~ If <' ~ 1L /~ /- t~~r7 William E. Bloor, City Attorney G:\Legal_Backup\AGREEMENTS&CONTRACTS\2008 Agmts&Contracts\CBI-2008.doc - 8 - " .. " 5,71.oQ AGREEMENT THIS AGREEMENT is entered into this~day of ~ 2006, by and between the City of Port Angeles, Washington, a municipal corporation, hereinafter called "City", and the Clallam Business Incubator, Inc. (hereafter "CBI"), a non-profit corporation, hereinafter called "Contractor." WHEREAS, the City is a municipal corporation of the State of Washington authorized to contract for economic development services; and, WHEREAS, it is in the public interest for economIC development activities to be performed that will enhance the economy and employment opportunities in the City of Port Angeles; and, WHEREAS, the City has need of assistance in regard to these and other aspects of Its operations; and, Whereas, CBI was formed to promote, manage and operate a business incubator facility intended to provide economic development and enhancement opportunities for the community; and, Whereas, CBI was sponsored by the City and other governmental entities in Clallam County to provide opportunities and education to promote new business, NOW, THEREFORE, in consideration of the above representations and the mutual covenants and agreements herein, the parties agree it as follows: - 1 - 1. PERFORMANCE BY THE CONTRACTOR. A. Training and Support Activities. (1) Contractor will facilitate entrepreneurial training and support activities for the purpose of expanding opportunities for economic growth in the community. (2). Contractor will make frequent presentations to inform community and regional groups about the programs and opportunities available through its resources. (3) Contractor will maintain communication with key contact persons on a regular basis to assure the strength of the relationships and to assure that Contractor is furthering the City's goals of promoting economic growth. (4). Contractor will provide periodic publicity and press releases concerning its activities, particularly as they relate to programs and opportunities available to new small businesses and for the positive economic development in Port Angeles. B. Develop Economic and Employment Opportunities. The Contractor shall promote and enhance economic development and employment opportunities in the City in accordance with its mission and goals and shall market its resources, facilities and capabilities to new and existing businesses with the goals of increasing City revenues and employment opportunities for City residents. C. Business Retention and Expansion. (1) The Contractor shall work cooperatively with the City for business retention and expansion for the City. (2) The Contractor shall, upon request, provide guidance and services to City staff in the development and execution of municipal programs aimed at better planning, utilization, promotion, and advertisement of City services, facilities, infrastructure, and property for the purpose of job creation and economic development. (3) The Contractor shall maintain and enhance working relations with new entrepreneurs and existing businesses to assist them with start-up and expansion needs, technical assistance, access to business counseling and financing resources includmg aid and assistance to at-risk businesses. - 2 - (4) The Contractor shall assist the City in applying for and administering economic development related grants, especially any potential to support the entrepreneurial training and development. (5) Contractor will solicit private, individual, and corporate funding, in addition to pursuing appropriate grants and other public funding, in order to enhance programs and supplement funds for its programs. D. Records. The Contractor shall maintain records and report to the City as follows: (1) The Contractor shall maintain accounts and records that accurately reflect the revenues and costs for the Contractor's activities under this Contract. These financial records, and all records related to the performance of this Contract, shall be available for City inspection. (2) The Contractor shall provide the City with written reports monthly, fully describing what work has been performed pursuant to this Contract, and including a current statement of revenues and costs. (3) The Contractor's Director shall appear before the City Council at least quarterly to report on the Contractor's activities and planned future activities pursuant to this agreement and to answer questions. (4) The Contractor shall use its best efforts to economize on overhead expenses to the maximum extent feasible in providing the services to be performed pursuant to this Contract. (5) The Contractor shall provide the City with an annual budget, including current salaries and benefits for all employees and classifications of employees and shall notify the City within 30 days of any increases in salaries or benefits from the prevIOUS year. E. Other Task Orders. From time to time, the City may add task orders to this contract for specific projects within the scope and expertise of the Contractor including, but not limited to (1) strategic planning, and (2) industrial and commercial redevelopment assistance. The Contractor shall not perform any such work until given a specific task order that authorizes such work and describes the scope of work to be performed and the project budget. - 3 - 2. PAYMENTS BY THE CITY. A. For the services to be rendered by the Contractor, the City wIll provide, payment as follows: 1. For Task Items A, B, C and D a total of $65,000 per calendar year, prorated for that portion of 2006 during which this contract is in effect. 2. For Task Item E an amount not-to-exceed $15,000 per calendar year, prorated for that portion of 2006 during which this contract is in effect. B. Payments shall be made in four, equal, quarterly installments. Payment by the City shall be due upon receipt and acceptance by the City Manager of the Contractor's written quarterly report. The Contractor will invoice the City for all quarterly payments. 3. TERM. This agreement shall be for a term commencing on the date it is signed by both parties and ending December 31, 2007. 4. ASSIGNMENT. This agreement may not be assigned by either party except with prior written consent of the other. 5. BREACH. A. In the event of either party's material breach of the terms or conditions of this Contract, the non-breaching party reserves the right to withhold payments or services until corrective action has been taken or completed. However, the party shall not exercise this right until they have given written notice of such material breach to the breaching party and ten days have passed since the receipt of such notice. This option is in addition to and not in lieu of the parties' right to terminate this Contract or any other right that State law offers for breach of contract. B. If either party shall materially breach any of the covenants undertaken herein or any of the duties imposed upon it by this Contract, such material breach shall entitle the other party to terminate this Contract, provided that the party desiring to terminate for such cause shall give the offending party at least twenty days' written notice, specifying the particulars wherein it is claimed that there has been a violation hereof, and if at the end of such time, the party notified has not removed the cause of complaint, or remedied the purported violation, then the termination of this - 4 - " Contract shall be deemed complete. 6. NON-DISCRIMINATION. A. The Contractor shall conduct its business in a manner which assures fair, equal and non-discriminatory treatment of all persons, without respect to race, creed or national origin, and, in particular: B. The Contractor shall maintain open hiring and employment practices and will welcome applications for employment in all positions, from qualified individuals who are members of minorities protected by federal equal opportunity/affirmative action requirements; and, C. The Contractor shall comply with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto, relating to the establishment of non-discriminatory requirements in hiring and employment practices and assuring the service of all persons without discrimination as to any person's race, color, religion, sex, Vietnam era veteran's status, disabled veteran condition, physical or mental handicap, or national origin. 7. DISPUTE RESOLUTION. The parties agree that any dispute related to this Agreement shall first be submitted to the City Manager and the Contractor's Executive Director, and they shall attempt to resolve that dispute. If the City Manager and Executive Director are not able to resolve that dispute, the dispute shall next be submitted to the City Council and to the Contractor's Board of Directors. Those entities shall attempt to resolve the dispute. If they are not able to resolve the dispute, the dispute shall be submitted to mediation. The parties shall agree on one mediator. If mediation is unable to resolve the dispute, then either party may take such legal action as they deem appropriate. The venue of any lawsuit related to this Agreement shall be in Clallam County, Washington. 8. INDEPENDENT CONTRACTOR STATUS. The relation created by this Contract is that of independent contracting entities. The Contractor is not an employee of the City and is not entitled to the benefits provided by the City to its employees. The Contractor, as an independent Contractor, has the authority to control and direct the performance of the details of the services to be provided. The Contractor shall assume full responsibility for payment of all Federal, State, and local taxes or contributions imposed or required, induding, but not limited to, unemployment insurance, Social Security, and income tax. - 5 - " 9. HOLD HARMLESS AND INSURANCE. Indemnification/Hold Harmless Contractor shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resultmg from the acts, errors or omissions of the Contractor in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. No Limitation. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 Oland shall cover liability arising from premises, operations, independent contractors, and personal injury and advertising injury. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers' Compensation coverage as required by the Industrial Insurances laws of the State of Washington. 4. Professional Liability insurance appropriate to the Contractor's profession. - 6 - .. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of$l,OOO,OOO per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability Insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. - 7 - . 10. ENTIRE CONTRACT. The parties agree that this Contract is the complete expression of the terms hereto and any oral representation or understanding not incorporated herein is excluded. Further, any modification of this Contract shall be in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto caused this Contract to be executed the day and year first herein above written. B CLALLAM BUSINESS INCUBATOR, INe. ATTEST: .........," Word G/exchange/legal_dlrectory-2006 Agrmts&Contracts\CBI-2006 Contract-Final 5-1-06 - 8 - 5./uQ GLM Policy No. 98-E2-4141-1 06/02/06 2806-F496 FE-6609 SECTION II ADDITIONAL INSURED ENDORSEMENT STAll fARM A INSUlr:ANCI ~ Policy No.: 98-E2-4141-1 Named Insured: CLALLAM BUSINESS INCUBATOR Additional Insured (include address): CITY OF PORT ANGELES 904 W 9TH ST PORT ANGELES WA 98363-5748 WHO IS AN INSURED, under SECTION II DESIGNATION OF INSURED, is amended to Include as an insured the Additional Insured shown above, but only to the extent that liability is imposed on that Additional Insured solely because of your work performed for that Additional Insured shown above. Any insurance provided to the Additional Insured shall only apply with respect to a claim made or a suit brought for damages for which you are provided coverage. The Primary Insurance coverage below applies only when there IS an "X" in the box. o Primary Insurance. The insurance provided to the Additional Insured shown above shall be primary insurance. Any insurance earned by the Additional Insured shall be noncontributory with respect to coverage provided to you. All other policy provisions apply. Printed In USA FE-6609 Poli~y Number .' _ '98-1::2-4141-1 DECLARATIONS PAGE AMENDED MAY 1 2006 STATE FARM FIRE AND CASUALTY COMPANY PO BOX 5000, DUPONT WA 98327-5000 A STOCK COMPANY WITH HOME. OFFICES IN BLOOMINGTON, ILLINOIS 15-2806-F496 K Named Insured and Mailing Address CLALLAM BUSINESS INCUBATOR 904 W 9TH ST PORT ANGELES WA 98363-5748 Cov A -Inflation Coverage Index: N/A BUSINESS POLICY - SPECIAL FORM 3 Cov B - Consumer Pricelndex: 198.8 AUTOMATIC RENEWAL - If the POLICY PERIOD is shown as 12 MONTHS, this policy will be renewed automatically subject to the premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we will give you and the Mortgagee/Lienholder written notice in compliance willi the policy provisions or as required by law. Policy Period: 1 Year The policy period begins and ends at 1201 am standard time at the Effective Date: JAN 1 2006 premises location Expiration Date: JAN 1 2007 Named Insured: Corporation Location of Covered Premises: 904 W 9TH ST PORT ANGELES WA 98363-5748 Your policy is amended MAY 1 2006 ADDL INSURED NAME & ADDRESS ADDED ENDORSEMENTFE~609ADDED Coverages & Property Section I A BUildings B Business Personal Property C Loss of Income - 12 Months Limits of Insurance Excluded $ 62,500 $ Actual LOSS Section II L Business Liability M Medical Payments Products-Completed Operations (PCO) Aggregate General Aggregate (Other Than PCO) $ 2,000,000 $ 5,000 $ 4,000,000 $ 4,000,000 Deductibles - Section I $ 5,000 Basic Forms, Options, and Endorsements Special Form 3 *Section II Additional Insured WA Amendatory Endorsement Tree Debns Removal Business POliCY Endorsement Special Form 3 Endorsement POlicy Endorsement * New Form Attached FP-6103 FE-6609 FE-6247 1 FE-6451 FE-6464 FE-6500 1 FE-6503 In case of loss under this policy, the deductible will be applied to each occurrence and will be deducted from the amount of the loss. Other deductibles may apply - refer to policy. Endorsement Premium Increase $ 33.55 Audit Period Annual Prepared MAY 25 2006 FP-8030 2C 06/1993 Your policy consists of this page, any endorsements and the policy form. PLEASE KEEP THESE TOGETHER. Continued on Reverse Side of Page OTHER LIMITS AND EXCLUSIONS MAY APPLY. REFER TO YOUR POLICY Countersigned By RAY GRUVER INS AND FIN SVC INC (360) 457-4567 ACB1 Agent (o1f2172b) Policy Number 98-E2-4141-1 CONTINUED FROM FRONT SIDE .. "'A IN!.lIlt.~ BUSINESS POLICY - SPECIAL FORM 3 Forms,Options,and Endorsements Glass Deductible Deletion Amendatory Collapse Subcontractor Pd Exclusion Domestic Abuse Endorsement POlicy Endorsement- Rusmess EmRroyers liability Inc Cost and Demolition Cov Terronsm Insurance Cov Notice Prepared MAY 25 2006 FE-6538.1 FE-6573 FE-6598 FE -6562 FE-6610 FE-6413 FE-6587 FE -6999 (o1f2175a) 5.71..PCJ "3 )L. 01("\010 PERSONAL SERVICES AGREEMENT , Contract Number: 147.06.001 THIS AGREEMENT is entered into between CLALLAM COUN1Y, a political subdivision of the State of Washington, (hereinafter called "County" or "Clallam County") and Name: C/allam Business Incubator Address: Mark Madsen, President 905 West 9th Street, Suite 221 Port Angeles W A 98363 Phone Number: 360.565.2060 (hereinafter called "Contractor"). This Agreement is comprised of: Attachment "A" Scope of Work. Attachment "B" Attachment "C" Compensation. General Conditions. o Attachment "D" Special Terms and Conditions. o Attachment "E" (specify) copies of which are attached hereto and incorporated herein by this reference as if fully set forth. The term of this Agreement shall commence on the 30th day of June 2006, and shall, unless terminated as provided elsewhere in the Agreement, terminate on the 30th day of June 2016. IN WITNESS WHEREOF, the parties have executed this Agree nt 0 this 1,'I4l day of ~006 -+-h COMMISSIONERS CLALLAM BUSINESS INCUBATOR ~~-t!1~ Print ame: ItA E. MA')~ Title: b=>AQiO ?r~c;.;d~ Date: ...J UJI\ e- ;;24J Howard V. DOherty,,,Jr., Chair 2006 ATTEST: ,. -(V'f4J Hv (tiU/l,. " Trish Peffet:t, CMC, Clerk of the Board f-ItJlJinh, - Originals: BOC;C' " Vendor . Initiating Department Copies: 5 THIS CONTRACT HAS BEEN APPROVED AS TO FORM BY THE CLALLAM COUN1Y PROSECUTING ATTORNEY ReVIsed 3 January 2006 PERSONAL SERVICES AGREEMENT ATTACHMENT "A" SCOPE OF WORK Eligible project expenditures consist of expenses specifically related to construction or equipment for the Clallam Business Incubator project. ATTACHMENT "A" - Page 1 PERSONAL SERVICES AGREEMENT ATTACHMENT "8" COMPENSATION 1. Oa. FIXED FEE FOR SERVICE: For services rendered, the County shall pay to the Contractor a fixed fee of DOLLARS ($ ) for the completed work set forth in Attachment "A.". Payments for completed tasks shall be made no more frequently than 0 monthly; 0 quarterly; Osemi-annually; 0 annually; 0 at completion of project; 0 other (specify) Each request for payment shall be supported by an invoice specifying the tasks completed up to the request for payment and the payment amount requested. In no event shall payment be sought in an amount which represents a percentage of the fee greater than the percentage of completed tasks. OR o b. HOURLY RATES: For services rendered, the County shall compensate the Contractor at the following hourly rates: Name/Position Hourly Rate Payments for completed tasks shall be made no more frequently than 0 monthly; Oquarterly; Osemi- annually; 0 annually; Oat completion of project; 0 other (specify) Each request for payment shall be supported by an invoice specifying: the name/position of the Contractor's employee if two or more are identified above; number of hours worked; completed tasks for which compensation is sought; estimated percentage of task completion; payment amount requested; other (specify) In no event shall Contractor be compensated in excess of work set forth in Attachment "A." DOLLARS ($ ) for the completed 2. AND Oa. The compensation set forth herein includes, without limitation: labor, materials, equipment, travel, telephone, computer, copiers and the like. OR o b. The County shall reimburse the Contractor for actual expenses incurred for travel, telephone, copiers and computer. Reimbursement for airfare, mileage, meals and/or accommodations shall be at the same rate as that applicable to county employees traveling on county business. OR [gI c. Other (specify): The balance of the Washington State Community Economic Revitalization Board (CERB) grant/loan which totals sixty-seven thousand, nine hundered sixty-nine dollars and forty-four cents ($67,969.44). ATTACHMENT "B" - Page 1 PERSONAL SERVICES AGREEMENT ATTACHMENT "C" GENERAL CONDITIONS 1. Scope of Contractor's Services. The Contractor agrees to provide to the County services and any materials set forth in the project narrative identified as Attachment "A" during the agreement period. No material, labor, or facilities will be furnished by the County, unless otherwise provided for in the Agreement. 2. Accounting and Payment for Contractor Services. Payment to the Contractor for services rendered under this Agreement shall be as set forth in Attachment "B." Unless specifically stated in Attachment "B," the County will not reimburse the Contractor for any costs or expenses incurred by the Contractor in the performance of this contract. The County shall compensate the Contractor through the County voucher system for the Contractor's service pursuant to the fee schedule set forth in Attachment "B." 3. Delegation and Subcontracting. Contractor's services are deemed personal and no portion of this contract may be delegated or subcontracted to any other individual, firm or entity without the express and prior written approval of the County Project Manager. 4. Independent Contractor. The Contractor's services shall be furnished by the Contractor as an independent contractor and nothing herein contained shall be construed to create a relationship of employer/employee or master/servant. The Contractor acknowledges that the entire compensation for this Agreement is specified in Attachment "B" and the Contractor is not entitled to any county benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental or other insurance benefits, or any other rights or privileges afforded to Clallam County employees. The Contractor represents that it maintains a separate place of business, serves clients other than the County, will report all income and expense accrued under this contract with the Internal Revenue Service on a business tax schedule, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. In the event that either the state or federal government determines that an employer/employee or master/servant relationship exists rather than an independent contractor relationship such that Clallam County is deemed responsible for federal withholding, social security contributions, workers compensation and the like, the Contractor agrees to reimburse Clallam County for any payments made or required to be made by Clallam County. Should any payments be due to the Contractor pursuant to this Agreement, the Contractor agrees that reimbursement may be made by deducting from such future payments a pro rata share of the amount to be reimbursed. Notwithstanding any determination by the state or federal government that an employer/employee or master/servant relationship exists, the Contractor, its officers, employees and agents, shall not be entitled to any benefits which Clallam County provides to its employees. 5. No Guarantee of Employment. The performance of all or part of this contract by the Contractor shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee of the Contractor or any subcontractor or any employee of any subcontractor by the County at the present time or in the future. 6. Regulations and Requirements. This Agreement shall be subject to all federal, state and local laws, rules, and regulations. 7. Right to Review. This contract is subject to review by any federal or state auditor. The County shall have the right to review and monitor the financial and service components of this program by whatever means are deemed expedient by the County Project Manager. Such review may occur with or without notice, and may include, but is not limited to, on-site inspection by County agents or employees, inspection of all records or other materials which the County deems pertinent to the ATTACHMENT "C" - Page 1 PERSONAL SERVICES AGREEMENT ATTACHMENT "C" Agreement and its performance, and any and all communications with or evaluations by service recipients under this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for three (3) years after contract termination, and shall make them available for such review, within Clallam County, State of Washington, upon request, during reasonable business hours. 8. Modifications. Either party may request changes in the Agreement. Any and all agreed modifications shall be in writing, signed by each of the parties. 9. Termination for Default. If the Contractor defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or makes an assignment for the benefit of creditors, the County may, by depositing written notice to the Contractor in the U.S. Mail, postage prepaid, terminate the contract, and at the County's option, obtain performance of the work elsewhere. If the contract is terminated for default, the Contractor shall not be entitled to receive any further payments under the contract. Any extra cost or damage to the County resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor agrees to bear any extra expenses incurred by the County in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the County by reason of such default. If a notice of termination for default has been issued and it is later determined for any reason that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the Termination for Public Convenience paragraph hereof. 10. Termination for Public Convenience. The County may terminate the contract in whole or in part whenever the County determines, in its sole discretion that such termination is in the interests of the County. Whenever the contract is terminated in accordance with this paragraph, the Contractor shall be entitled to payment for actual work performed for completed items of work. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Termination of this contract by the County at any time during the term, whether for default or convenience, shall not constitute a breach of contract by the County. 11. Termination Due to Insufficient Funds. If sufficient funds for payment under this contract are not appropriated or allocated or are withdrawn, reduced or otherwise limited, the County may terminate this contract upon five (5) days written notice to the Contractor. No penalty or expense shall accrue to the County in the event this provision applies. 12. Termination Procedure. The following provisions apply in the event that this Agreement is terminated: (a) The Contractor shall cease to perform any services required hereunder as of the effective date of termination and shall comply with all reasonable instructions contained in the notice of termination, if any. (b) The Contractor shall provide the County with an accounting of authorized services provided through the effective date of termination. (c) If the Agreement has been terminated for default, the County may withhold a sum from the final payment to the Contractor that the County determines necessary to protect itself against loss or liability. 13. Defense and Indemnity Agreement. The Contractor agrees to defend, indemnify and save harmless the County, its appointed and elected officers, agents and employees, from and against all loss or expense, including but not limited to claims, demands, actions, judgments, settlements, attorneys' fees and costs by reason of any and all claims and demands upon the County, its elected or appointed ATTACHMENT "C" - Page 2 PERSONAL SERVICES AGREEMENT ATTACHMENT "C" officials or employees for damages because of personal or bodily injury, including death at any time resulting therefrom, sustained by any person or persons and on account of damage to property including loss of use thereof, whether such injury to persons or damage to property is due to the negligence of the Contractor, his/her subcontractors, its successor or assigns, or its or their agent, servants, or employees, the County, its appointed or elected officers, employees or their agents, except only such injury or damage as shall have been occasioned by the sole negligence of the County, its appointed or elected officials or employees. It is further provided that no liability shall attach to the County by reason of entering into this contract, except as expressly provided herein. 14. Industrial Insurance Waiver. With respect to the performance of this Agreement and as to claims against the County, its appointed and elected officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, as now or hereafter amended, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this Agreement extend to any claim brought by or on behalf of any employee of the Contractor. Along with the other provisions of this Agreement, this waiver is mutually negotiated by the parties to this Agreement. 15. Venue and Choice of Law. In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action shall be in the courts of the State of Washington in and for the County of Clallam. This Agreement shall be governed by the law of the State of Washington. 16. Withholding Payment. In the event the County Project Manager determines that the Contractor has failed to perform any obligation under this Agreement within the times set forth in this Agreement, then the County may withhold from amounts otherwise due and payable to Contractor the amount determined by the County as necessary to cure the default, until the County Project Manager determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling Contractor to termination or damages, provided that the County promptly gives notice in writing to the Contractor of the nature of the default or failure to perform, and in no case more than ten (10) days after it determines to withhold amounts otherwise due. A determination of the County Project Manager set forth in a notice to the Contractor of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the Contractor acts within the times and in strict accord with the provision of the Disputes clause of this Agreement. The County may act in accordance with any determination of the County Project Manager which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the Contractor, (3) to set off any amount paid or incurred from amounts due or to become due the Contractor. In the event the Contractor obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to the Contractor by reason of good faith withholding by the County under this clause. 17. Rights and Remedies. The duties and obligations imposed by this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available bylaw. 18. Contractor Commitments. Warranties and Representations. Any written commitment received from the Contractor concerning this Agreement shall be binding upon the Contractor, unless otherwise specifically provided herein with reference to this paragraph. Failure of the Contractor to fulfill such a commitment shall render the Contractor liable for damages to the County. A commitment includes, but is not limited to any representation made prior to execution of this Agreement, whether or not incorporated elsewhere herein by reference, as to performance of services or equipment, prices or options for future acquisition to remain in effect for a fixed period, or warranties. 19. Patent/Cooyright Infringement. Contractor will defend, indemnify and save harmless County, its appointed and elected officers, agents and employees from and against all loss or expense, including but not limited to claims, demands, actions, judgments, settlements, attorneys' fees and costs by ATTACHMENT "C" - Page 3 PERSONAL SERVICES AGREEMENT ATTACHMENT "C" reason of any and all claims and demands upon the County, its elected or appointed officials or employees for damages because of the Contractor's alleged infringement on any patent or copyright. The Contractor will pay those costs and damages attributable to any such claims that are finally awarded against the County, its appointed and elected officers, agents and employees in any action. Such defense and payments are conditioned upon the following: (a) That Contractor shall be notified promptly in writing by County of any notice of such claim. (b) Contractor shall have the right, hereunder, at its option and expense, to obtain for the County the right to continue using the information, in the event such claim of infringement, is made, provided no reduction in performance or loss results to the County. 20. Disputes: (a) General. Differences between the Contractor and the County, arising under and by virtue of the contract documents shall be brought to the attention of the County at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. The records, orders, rulings, instructions, and decision of the County Project Manager shall be final and conclusive thirty (30) days from the date of mailing unless the Contractor mails or otherwise furnishes to the County Administrator a written notice of appeal. The notice of appeal shall include facts, law, and argument as to why the conclusions of the County Project Manager are in error. In connection with any appeal under this clause, the Contractor and County shall have the opportunity to submit written materials and argument and to offer documentary evidence in support of the appeal. Oral argument and live testimony will not be permitted. The decision of the County Administrator for the determination of such appeals shall be final and conclusive. Reviews of the appellate determination shall be brought in the Superior Court of Clallam County within fifteen (15) days of mailing of the written appellate determination. Pending final decision of the dispute, the Contractor shall proceed diligently with the performance of this Agreement and in accordance with the decision rendered. ' (b) Notice of Potential Claims. The Contractor shall not be entitled to additional compensation or to extension of time for (1) any act or failure to act by the County Project Manager or the County, or (2) the happening of any event or occurrence, unless the Contractor has given the County a written Notice of Potential Claim within ten (10) days of the commencement of the act, failure, or event giving rise to the claim, and before final payment by the County. The written Notice of Potential Claim shall set forth the reasons for which the Contractor believes additional compensation or extension of time is due, the nature of the cost involved, and insofar as possible, the amount of the potential claim. Contractor shall keep full and complete daily records of the work performed, labor and material used, and all costs and additional time claimed to be additional. (c) Detailed Claim. The Contractor shall not be entitled to claim any such additional compensation, or extension of time, unless within thirty (30) days of the accomplishment of the portion of the work from which the claim arose, and before final payment by the County, the Contractor has given the County a detailed written statement of each element of cost or other compensation requested and of all elements of additional time required, and copies of any supporting documents evidencing the amount or the extension of time claimed to be due. 21. Ownership of Items Produced. All writings, programs, data, art work, music, maps, charts, tables, illustrations, records or other written, graphic, analog or digital materials prepared by the Contractor and/or its consultants or subcontractors, in connection with the performance of this Agreement shall be the sole and absolute property of the County and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws and Contractor and/or its agents shall have no ownership or use rights in the work. ATrACHMENT "C" - Page 4 PERSONAL SERVICES AGREEMENT ATTACHMENT "C" 22. Recovery of Payments to Contractor. The right of the Contractor to retain monies paid to it is contingent upon satisfactory performance of this Agreement, including the satisfactory completion of the project described in the Scope of Work [Attachment "A"]. In the event that the Contractor fails, for any reason, to perform obligations required of it by this Agreement, the Contractor may, at the County Project Manager's sole discretion, be required to repay to the County all monies disbursed to the Contractor for those parts of the project that are rendered worthless in the opinion of the County Project Manager by such failure to perform. Interest shall accrue at the rate of twelve percent (12%) per annum from the time the County Project Manager demands repayment of funds. 23. Proiect Approval. The extent and character of all work and services to be performed under this Agreement by the Contractor shall be subject to the review and approval of the County Project Manager. For purposes of this Agreement, the County Project Manager is: Name: Kay Stevens Title: Budget Analyst 223 East 4th Street, Suite 4 Address: Port Angeles W A 98362 Telephone: 360.417.2382 E-mail: kstevens@co.c1allam.wa.us Fax: 360.417.2493 In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the County Project Manager as to the extent and character of the work to be done shall govern subject to the Contractor's right to appeal that decision as provided herein. 24. Non-Discrimination. The Contractor shall not discriminate against any person on the basis of race, creed, political ideology, color, national origin, sex, marital status, sexual orientation, age, or the presence of any sensory, mental or physical handicap. 25. Subcontractors. In the event that the Contractor employs the use of any subcontractors, the contract between the Contractor and the subcontractor shall provide that the subcontractor is bound by the terms of this Agreement between the County and the Contractor. The Contractor shall insure that in all subcontracts entered into, Clallam County is named as an express third-party beneficiary of such contracts with full rights as such. 26. Third Party Beneficiaries. This agreement is intended for the benefit of the County and Contractor and not for the benefit of any third parties. 27. Standard of Care. The Contractor shall perform its duties hereunder in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession as Contractor currently practicing under similar circumstances. The Contractor shall, without additional compensation, correct those services not meeting such a standard. 28. Time is of the Essence. Time is of the essence in the performance of this contract unless a more specific time period is set forth in either the Special Terms and Conditions or Scope of Work. ATTACHMENT "C" - Page 5 PERSONAL SERVICES AGREEMENT ATTACHMENT "C" 29. Notice. Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, any notices shall be given by the Contractor to the County Project Manager. Notice to the Contractor for all purposes under this Agreement shall be given to the person executing the Agreement on behalf of the Contractor at the address identified on the signature page. 30. Severability. If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 31. Precedence. In the event of inconsistency in this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) Applicable federal, state and local statutes, ordinances and regulations; (b) Scope of Work [Attachment "A"] and Compensation [Attachment "B"]; (c) Special Terms and Conditions [Attachment "0"]; and (d) General Conditions [Attachment "C"]. 32. Waiver. Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. 33. Attorney Fees. In the event that litigation must be brought to enforce the terms of this agreement, the prevailing party shall be entitled to be paid reasonable attorney fees. 34. Construction. This agreement has been mutually reviewed and negotiated by the parties and should be given a fair and reasonable interpretation and should not be construed less favorably against either pa rty. 35. Survival. Without being exclusive, Paragraphs 4, 7, 13-19, 21-22 and 31-35 of these General Conditions shall survive any termination, expiration or determination of invalidity of this Agreement in whole or in part. Any other Paragraphs of this Agreement which, by their sense and context, are intended to survive shall also survive. 36. Entire Agreement. This written contract represents the entire Agreement between the parties and supersedes any prior statements, discussions or understandings between the parties except as provided herein. ATTACHMENT "C" - Page 6 PERSONAL SERVICES AGREEMENT ATTACHMENT "D" SPECIAL TERMS AND CONDITIONS D 1. Reporting. The Contractor shall submit written progress reports to the County Project Manager as set forth below: D With each req uest for payment. D Monthly. D Quarterly. IZI Semi-annually. D Annually. D Project completion. D Other (specify): Progress reports shall include, at a minimum, the following: Reports shall include any problems, delays or adverse conditions which will materially affect the Contractor's ability to meet project objectives or time schedules together with a statement of action taken or proposed to resolve the situation. Reports shall also include recommendations for changes to the Scope of Work, if any. Payments may be withheld if reports are not submitted. D 2. Insurance. The Contractor shall maintain in full force and effect during the term of this Agreement, and until final acceptance of the work, public liability and property damage insurance with companies or through sources approved by the state insurance commissioner pursuant to ROO Title 48, as now or hereafter amended. The County, its appointed and elected officials, agents and employees, shall be specifically named as additional insureds in a policy with the same company which insures the Contractor or by endorsement to an existing policy or with a separate carrier approved pursuant to ROO Title 48, as now or hereafter amended, and the following coverages shall be provided: D COMPREHENSIVE GENERAL UABILIlY: Bodily injury, including death. $ per occurrence Property damage $ per occurrence D ERRORS AND OMISSIONS or PROFESSIONAL UABIUlY with an Extended Reporting Period Endorsement (two year tail). $ per occurrence D D WORKERS COMPENSATION: Statutory amount AUTOMOBILE: coverage on owned, non-owned, rented and hired vehicles $ bodily injury, liability, including death, per occurrence $ property damage liability, per occurrence If the Errors and Omissions or Professional Liability insurance obtained is an occurrence policy as opposed to a claims-made policy, the Extended Reporting Period Endorsement is not required. ATTACHMENT "0" - Page 1 PERSONAL SERVICES AGREEMENT ATTACHMENT "D" Any such insurance carried by the Contractor shall be primary over any insurance carried by Clallam County and the Contractor shall ensure that such insurances is primary. The County shall have no obligation to report occurrences unless a claim or lawsuit is filed with it and the County has no obligation to pay any insurance premiums. Evidence of primary insurance coverage shall be submitted to the County Project Manager within twenty (20) days of the execution of the Agreement. The Agreement shall be void ab initio if the proof of coverage is not timely supplied. The coverage limits identified herein shall not limit the potential liability of the Contractor and the Contractor's duty to defend, indemnify and hold harmless shall apply to any liability beyond the scope of insurance coverage. D 3. Liquidated Damages. For delays in timely completion of the work to be done or missed mile- stones of the work in progress, the Contractor shall be assessed Dollars ($ ) per day as liquidated damages and not as a penalty because the County finds it impractical to calculate the actual cost of delays. Liquidated damages will not be assessed for any days for which an extension of time has been granted. No deduction or payment of liquidated damages will, in any degree, release the Contractor from further obligations and liabilities to complete the entire project. D 4. Other (specify):. ATTACHMENT "0" - Page 2