HomeMy WebLinkAbout5.971 Original Contract
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AGREEMENT FOR OPERATION
OF CITY FACILITY
THIS AGREEMENT made this &#=- day of July, 2009, by and between the City of
Port Angeles, a Municipal Corporation of the State of Washington, hereinafter referred to as
"City", and Feiro Marine Life Center, a Washington State Non-profit Corporation.
WHEREAS, the City owns the Feiro Marine Life Center building (hereinafter "Facility")
located at the Port Angeles City Pier; and
WHEREAS, to date, Peninsula College (hereinafter "College") has operated the Facility
for the City pursuant to the terms of a Memorandum of Agreement; and
WHEREAS, the College is no longer able to operate the Center; and
WHEREAS, the Feiro Marine Life Center, a Washington State Non-profit Corporation
(hereinafter "FMLC") has been formed, in part, for the purposes of assuming operation of the
Facility; and
WHEREAS, it is understood and agreed by the parties that the purpose of this Agreement
is to support the vision of the City and the FMLC to provide a facility that will: 1) promote
marine conservation and education by fostering, promoting and encouraging public interest and
participation at the Facility; 2) be the go-to place on the north Olympic Peninsula for marine
education; and 3) help people see beneath the surface of the ocean and become stewards of our
shared marine environment; and
WHEREAS, the City recognizes that the FMLC is best suited to develop and implement
interpretive programs, educational displays and outreach events that will enhance the experience
of residents and visitors to the Port Angeles area; and
WHEREAS, FMLC has the staff, resources, expertise and other qualifications necessary
to operate the Facility in a manner that will be consistent with said purpose and intent; and
WHEREAS, the City wishes to enter into an Agreement with the FMLC for the FMLC's
exclusive operation of Facility consistent with the City and FMLC stated vision and purposes,
NOW, THEREFORE, in consideration of the mutual covenants and agreements specified
herein, to be kept and performed by the parties hereto, it is hereby agreed as follows:
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1. TERM
The term of this Agreement shall be five years from the date of this Agreement. During
the term of this Agreement, FMLC shall have the exclusive right to manage and operate the
Facility consistent with the terms and conditions set forth herein. The Agreement may be
modified only by a written instrument executed by authorized representatives of the parties.
2. PAYMENT
From the date of this Agreement through December 31, 2009, the City shall pay FMLC
Twenty- Two Thousand, Five Hundred ($22,500) Dollars to operate the Center pursuant to this
Agreement. The City shall pay FMLC Eleven Thousand, Two Hundred Fifty ($11,250) Dollars
immediately upon signing this Agreement, and the remaining Eleven Thousand, Two Hundred
Fifty ($11,250) Dollars on or before September 30, 2009. The City and FMLC shall renegotiate
the amount, to be paid by the City to FMLC annually. The parties acknowledge that available
funding through the City to operate the Facility may change in any given year through the City's
budgeting process. The parties acknowledge that the City has no obligation under this
Agreement to make any payment to FMLC except the $22,500 specified above.
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. SCOPE OF WORK
A. Throughout the terms of this Agreement FMLC will open the Facility to the
public no less than five days per week Memorial Day through Labor Day, lOam to 5 pm and no
less than two days per week Labor Day through Memorial Day, 12 noon to 4 pm barring
unforeseen problems or events. FMLC may open the Facility for additional hours of operation to
accommodate other FMLC programs and events.
B. FMLC will develop and administer programs for school groups, for outreach
events, for FMLC volunteers and for visitors to the Facility. FMLC may work in partnership
with other education agencies in program planning and implementation at the Facility or other
locations.
C. FMLC will have the right to collect admission fees, which will be set or adjusted
from time to time by the FMLC board of directors. Currently admission fees shall be charged at
the rate of $3.00/adult, $2.00/senior and $1.00/child for year 2009. Fees will be retained by the
FMLC for operational expenses.
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4. INDEPENDENT CONTRACTOR RELA TIONSHP
The relationship created by this Agreement is that of independent contracting entities.
No agent, employee, servant, or representative of the FMLC shall be deemed to be an employee,
agent, servant, or representative of the City, and the employees of the FMLC are not entitled to
any of the benefits the City provides for its employees. The FMLC shall be solely and entirely
responsible for its acts and the acts of its agents, employees, servants, subcontractors, or
representatives during the performance of this Agreement. The FMLC shall assume full
responsibility for payment of all wages and salaries and all federal, state, and local taxes or
contributions imposed or required, including, but not limited to, unemployment insurance,
workers compensation insurance, social security, and income tax withholding.
5. OPERATING CONDITIONS - FMLC shall comply with the following conditions:
A. FMLC shall keep the premises in a clean and sanitary condition at all times and
shall be responsible for the costs of janitorial supplies and services. The City maintains public
bathroom facilities in an adjoining building to FMLC. FMLC shall not be required to provide
public bathrooms at its facility.
B. FMLC shall provide for the care and feeding of the marine animals and all costs
incurred to do so.
C. FMLC shall operate in compliance with the laws of the State of Washington, all
ordinances of the City of Port Angeles, and all regulations of the Port Angeles Parks and
Recreation Department, and will not allow the violation of any of these laws, ordinances; or
regulations by any other party within the area in which FMLC operates. FMLC shall not be
responsible for payment of any real property taxes associated with the facility.
D. FMLC shall have the right to operate and conduct a gift shop within the premises
ofthe Facility and keep all sale proceeds for FMLC operational expenses. FMLC shall promptly
pay all sales tax resulting from operation of any retail store within the Facility.
E. FMLC shall not erect any permanent sign on the premises or in the vicinity
thereof without obtaining the advance approval of the City.
F. Employees and volunteers, as designated by FMLC, necessary for its operation,
shall have the right of access and the right to park adjacent to the Facility. Parking shall consist
of up to five parking spaces which shall be located at the designated parking area to the west of
the Facility (four spaces) and the rear door of the Facility (one space).
6. MAINTENANCE
In addition to the amount paid FMLC under this Agreement, the City shall be responsible
for timely and reasonably necessary maintenance of the Facility building and grounds, with
exception of the seawater system and the exhibit structures.
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7. ALTERATIONS
No alterations or improvements shall be made to the Facility without prior written
consent of the City Manager. In the event such approval is given, it is understood that such
alterations or improvements shall become the property of the City without compensation to
FMLC at the expiration or termination in any manner of this Contract. However, any equipment
such as, but not limited to, aquariums, tanks, audio visual and office equipment owned by FMLC
shall remain the property of FMLC at the expiration or termination in any manner of the
Contract.
8. ACCOUNTING
FMLC shall install and maintain accurate and appropriate bookkeeping and accounting
methods and shall permit the City to review the records of proceeds generated from entrance fees
and retail sales. Such records shall be made available to the City upon request during normal
hours of business.
9. INDEMNIFICATION/INSURANCE
A. Indemnification
FMLC 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 in connection with FMLC's performance of this Agreement, except for
injuries and damages caused by the sole negligence of the City.
The City shall defend and hold FMLC, its directors, officers, employees, and volunteers
harmless from any and all claims, injuries, damages, losses or suits, including attorney fees
arising out of or in connection with the City's performance of this Agreement, except for injuries
or damages caused by the sole negligence of FMLC.
B. Insurance
FMLC 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 FMLC, their agents, representatives, volunteers,
employees or subcontractors.
C. Minimum Scope of Insurance
FMLC shall obtain insurance of the types described below:
Commercial General Liability insurance shall be written on ISO occurrence form CG 00
01 or equivalent and shall cover liability arising from premises, operations, independent
contractors, products-completed operations, stop gap liability, personal injury and advertising
injury, and liability assumed under an insured contract.
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The City shall be named as an insured under the FLMC's Commercial General Liability
insurance policy with respect to the work performed for the City.
Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
D. Minimum Amounts of Insurance
FMLC shall maintain Commercial General Liability insurance with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate. FMLC shall be responsible for
payment of any deductible amount under the terms of its insurance.
E. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions
for Commercial General Liability insurance:
FMLC's insurance coverage shall be the primary insurance as respect to the City. Any
Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of
the FMLC's insurance and shall not contribute with it.
FMLC'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.
F. Acceptabili ty of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:
VII.
G. Verification of Coverage
FMLC 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 ofFMLC before providing services at the Facility.
H. City Insurance.
City shall purchase and maintain during the term of this Agreement all-risk property
insurance covering the Facility building and City owned contents for their full replacement value
without any coinsurance provisions. City shall be responsible for payment of any deductible
amount under the terms of its insurance.
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I. FMLC Property.
The City will not be responsible for insuring any FMLC owned property or that of its
employees or volunteers.
J. Waiver of Subrogation
FMLC and City hereby release and discharge each other from all claims, losses and
liabilities arising from or caused by any hazard covered by property insurance on or in
connection with the Facility or the contents of the Facility. This release shall apply only to the
extent that such claim, loss, or liability is covered by insurance.
10. ASSIGNABILITY
Neither this Agreement nor any rights or privileges hereunder shall be assigned without
the prior consent of the City.
11. TERMINATION FOR BREACH
If either party shall materially breach any of the covenants undertaken herein or any of
the duties imposed upon it by this Agreement, such material breach shall entitle the other party to
terminate this Agreement, 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. If at the end of twenty days, the party notified has
not removed the cause of complaint, or remedied the purported violation, then the termination of
this Agreement shall be deemed complete.
12. SURRENDER OF POSSESSION
FMLC shall surrender possession of the premises to the City at the expiry of this
Agreement or in the event of termination of this Agreement as specified in Section 11.
13. NOTICES/TIME
Any notices required by the terms of this Agreement or by law shall be deemed to have
been given when made in writing and deposited in the United States mail; postage prepaid, and
addressed to the last address provided by the parties to each other. TIME IS OF THE ESSENCE
for this Agreement and for each and every term, condition and provision herein.
14. SUCCESSORS/APPLICABLE LAW
The terms and conditions of this Agreement shall be binding on the parties hereto, their
successors, administrators, and assigns, may only be modified in writing by all parties hereto,
and shall be construed in accordance with the laws of the State of Washington.
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15. WAIVER
The waiver by the City or FMLC of any breach of any term contained in this Agreement
shall not be deemed to be a waiver of such term for any subsequent breach of the same or any
other term.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
above.
FEIRO MARINE LIFE CENTE I
CITY OF PORT ANGELES
B&
y.
By:
Orville Campbell, resident
FMLC Board of Directors
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