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HomeMy WebLinkAbout5.971 Original Contract 5. q1! 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: 1 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. 2 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. 3 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. 4 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. 5 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. 6 . ... )to 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 G:\Legal_BackupIAGREEMENTS&CONTRACTS\2009 Agnnts&Contracts\FMLC AGREEMENT Final city_June 15, 2009 _I.doc (7/20/2009) " 7