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HomeMy WebLinkAbout000852 Original Contract City of Port Angeles Record # 000852 AGREEMENT FOR THE OPERATION OF A VISITORS CENTER WITHIN THE CITY OF PORT ANGELES THIS AGREEMENT is entered into this 1�_day of February, 2015, by and between the City of Port Angeles, Washington, a municipal corporation, hereinafter called "City", and the Port Angeles Regional Chamber of Commerce, a non-profit corporation, hereinafter called "Contractor." WHEREAS, the City is a municipal corporation of the State of Washington authorized to contract for tourist promotion services; and, WHEREAS, it is in the public interest that Port Angeles hotel/motel tax funds be expended for tourist promotion services within the City of Port Angeles; and, WHEREAS, pursuant to RCW 67.28.1815, the City is authorized to expend special excise tax funds for "paying all or any part of the cost of tourism promotion, acquisition of tourism-related facilities, or operation of tourism-related facilities." "Tourism promotion" is defined in RCW 67.28.080(6) to include activities and expenditures designed to distribute information for the purpose of attracting and welcoming tourists and operating tourism promotion agencies; and, WHEREAS, the Contractor desires to have a visitors center to distribute information for the purpose of attracting and welcoming tourists to the City of Port Angeles. 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. Visitors Center. (1) The Contractor will provide tourist promotion services by operating a visitors center in the City of Port Angeles. (2) The visitors center shall be operated to distribute information for the purpose of attracting and welcoming tourists to the City of Port Angeles, and to provide informational assistance to tourists or visitors to the City of Port Angeles including travel directions, directions to points of interest, lodging accommodations within the City of Port Angeles and other hospitality services within the City of Port Angeles, recreational activities, cultural events, emergency services, and other services within the City of Port Angeles. (3) The visitors center hours of operation shall be open for the majority of ferry arrival and departure times. Hours shall be in accordance with the Chambers proposed schedule submitted to the City December 2,2014. (4) The visitors center shall promote, on an equal basis, without regard to whether the entity is a member of the Port Angeles Regional Chamber of Commerce, all Port Angeles area businesses and attractions that request such promotion. B. Record Keeping and Reporting. 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 all services performed through the visitors center. Contractor shall follow Generally Accepted Accounting Principles for non-profit agencies in maintenance of its records. (2) The Contractor shall provide the City with written reports quarterly, fully describing the revenues and expenses of the visitors center for the quarter. (3) The Contractor shall provide quarterly written reports to the City that include at least the following: A. The number of visits to the visitors center from people traveling to Port Angeles for business or pleasure: - 2 - (i) Away from their place of residence or business and staying overnight in paid accommodations; (ii) Travelling 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. B. For a statistically valid subset of visitors the contractor shall provide the visitor's place of residence and compile a report showing such locations. C. Determine whether the visitors noted in the preceding section B above are staying at a City of Port Angeles hotel and lodging establishment. D. Determine how the visitors noted in section B above learned of Port Angeles and what prompted the visitor's current trip to Port Angeles. (4) The Chamber of Commerce is required to submit a "Joint Legislative Audit and Review Committee Report" for 2014 expenditures in accordance with RCW.67.28.1816 to the Washington State Joint Legislative Audit and Review Committee (JLARC) no later than March 15, 2015. Details for the 2015 report shall be submitted to the City by December 31, 2015. (5) Audits. Contractor will cooperate with the City by facilitating audits by the City of Contractor finances every year during the first quarter of the year and at other times as designated by the City. Contractor will provide all financial information requested by the City and comply with requirements of the Washington State Auditor for reporting, disbursements, and legal compliance. (6) The Contractor's representative, when requested, shall appear before the City Council to report on the Contractor's activities and planned future activities pursuant to this agreement and to answer questions. (7) To the extent feasible, cooperate on joint efforts with other local entities such as PADA, PABA, EDC, Visitor's Bureau, Tourism Commission, etc. (8) 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. (9) Not later than January 20, 2015, The Contractor shall provide the City with a budget for the visitors center, including current salaries and benefits for all employees, the allocation of employee time to the various activities engaged in by the Contractor, and classifications of employees and shall notify the City within - 3 - 30 days of any increases in salaries or benefits from the original salaries and benefits provided in the budget. The City will provide a budget form to be used by the contractor to comply with this provision. (10) By March 31, 2015, the Contractor shall identify additional performance measures that can be used to determine the efficacy and benefits of the visitors center. The Contractor shall report on these additional performance measures in the second, third, and fourth quarters of 2015. 2. DURATION OF CONTRACT. A. The performance of the Contractor shall commence on the 1st day of January, 2015, and shall terminate on December 31, 2015. 3. COMPENSATION AND METHOD OF PAYMENT BY CITY A. Compensation for Operation a Visitors Centers. From January 1, 2015 through December 31, 2015, the City shall pay Contractor Seventy-eight thousand five hundred ($78,500) dollars, for expenses the contractor incurs to operate the visitors center. As to expenses incurred by the Contractor that are eligible for reimbursement under this Agreement, Contractor shall submit monthly invoices to the City, and City will pay Contractor monthly within 20 days after receipt and approval by the City Manager or designee of said invoices. However, the City will not reimburse the Contractor for late fees incurred by it. B. Covenants. Contractor covenants and agrees that it will not use monies received from the City of Port Angeles for any purposes other than operation of the visitors center and for no other purpose whatsoever. 4. 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 - 4 - 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. 5. TERMINATION OF AGREEMENT A. Either party may terminate this Agreement in accordance with the termination provisions set out in Section 4 Breach of this Agreement. B. In the event a court issues an injunction or order that in any way (1) limits, conditions, or restricts the ability of the City to enter into a contract with the Contractor, or (2) finds that this Agreement is void or was entered into improperly, or (3) limits, conditions, or restricts the ability of the Contractor to continue to perform this Agreement, or (4) declares that this Agreement should have been awarded by a different procedure or to a different proposer, then in any such event the City, in its sole discretion, may terminate this Agreement. Termination of this Agreement by the City pursuant to this paragraph shall not constitute a breach of Agreement by the City, and such termination shall not entitle the Contractor to any compensation whatsoever except the final payment described in the succeeding paragraph. C. In the event this Agreement is terminated prior December 31, 2015, a final payment shall be made to the Contractor, which, when added to any payments previously made, shall reimburse the Contractor for costs actually incurred as of the date of termination. Final payment shall not include compensation for loss of anticipated income. Except for the final payment, no additional payment shall be due or owing to the Contractor on any grounds whatsoever. As a substantial element of the consideration for the City entering into this Agreement, the Contractor hereby waives and relinquishes any right, claim or cause of action for additional payment. As of the date of termination, all rights and obligations of the Contractor to the City, and of the City to the Contractor, shall cease and determine. - 5 - 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. - 6 - 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 01 and 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. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 7 - 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 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. 10. OWNERSHIP OF ITEMS PRODUCED All rights, including intellectual property rights, writings, programs, data, records, documents, exhibits, photographic negatives, presentations, or other materials of any kind or nature prepared by the Contractor in connection with the performance of this Agreement shall be the sole and absolute property of the City and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws. - 8 - Upon termination or the expiry of this Agreement, the Contractor agrees to immediately deliver to City, all rights, including intellectual property rights, writings, programs, data, records, documents, exhibits, photographic negatives, presentations, or other materials of any kind or nature prepared for or by the Contractor in connection with the performance of this Agreement. All such material shall be delivered to the City and received by the CITY prior to transmittal of final payment to the Contractor. 11. PUBLIC PROCESS. Public money is being used to fund the activities performed pursuant to this Agreement. Recognizing that, the Contractor shall allow public attendance at all meetings or portions of meetings at which the directors or other representatives of the Contractor take action with regard to this agreement or to any action pursuant to this Agreement. And, the Contractor shall allow for public inspection of al records of the Contractor that relate to this Agreement or any action taken pursuant to this Agreement. 12. 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. 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