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HomeMy WebLinkAbout4678 Contract Number 4678 Vendor ED FAULK OPERATIONS LLC Sub7ect Greens Superintendent Department Parks File Class LEG 12-1 Begin Date 1/1/2008 End Date 3/31/2011 Review Date 4/15/2011 Vault Date Comments Amendment 12/09 Amendment 1/11/2011 AMENDMENTTO PROFESSIONAL SERVICES AGREEMENT Greens Supenntendent WHEREAS, on December 12, 2007, the C�ty of Bremerton, a mumcipal corporat�on of the State of Washmgton, "C�ty" and Ed Faulk Operat�ons, LLC , a Washmgton corporat�on, "Contractor" entered mto an Agreement to prov�de greens maintenance and related sernces at the Gold Mountam Golf Club wrth a tertnmatwn date of December 31, 2 i 09, and WHEREAS, on December 29, 2009 C� of Bremerton, a mumcipal corporat�on of the State of Washmgton, "C�ty° and Ed Faulk Operahons, LLC , a Washmgton corporation, "Contractor" entered mto an Amendment to the Agreement tolprov�de greens mamtenance and related sernces at the Gold Mountam Golf Club extendmg the term of the Agreement through December 3l, 2010, and WHEREAS, the part�es desire to amend the Agreement to extend the term through March 31, 2011, NOW THEREFORE, for mutual cons�der It�on, C�ty and Contractor agree as follows Sechon 2 of the Agreement �s hlereby amended to extend the termmation date of the Profess�onal Sernces Agreement tl March 31, 2011 AII other terms of the Agreement not spec�fically amended herem shall remam m full force and effect CITY OF BREMERTON ED FAULK OPERATIONS, LLC �J , Mayor By Edward G Faulk Its UW��nA.e?J� , � DATE I �( DATE ��- a9 -� 1� APPROVED AS TO FORM R GE OVICH, Ciry ttorne ATT ST � � Carol Et en, C�ty Clerk R�1.egal�Legal�Fdes\Curtent Acnve Pdes\Gold Mountam\Greens supenn�endent Agreement Amendmen[ (2010) doc Amendment Projess�anal Serv�ces Agreement — Greens SupermiendenJ . • AMENDMENT TO � PROFESSIONAL SERVICES AGREEMENT Greens Supenntendent WI�REAS, on December 12, 2009, the City of Bremerton, a mumcipal coiporation of the State of Weahwgtoq "Cit�' and Ed Faalk OperaHona, LLC., a Washmgton cotpotaqon, "Contracto�" enterai mto and Ageement to provide greens maurtenance and related sernces at the Gold Mountau► Golf Club and Wf�REAS, the term of the Professional Semces Agreement commenced on Ianuary 1, 2008 and ahall temunate on December 31, 2009, and Wf�itEAS, the parties desue to amend the Agreement to extend the term through December 31, 2010, NOW Tf�REFORE, for mutual cons�derahon, C�ty and Contractor ag�+ee as follows Sectlon 2 of the Agreement �s hereby amended to extend the te�aunauon date of the Professional Serncea Agreement to December 31, 2010 All other tem�s of the Agreement not spec�fically amended herem shall remarn m full force and effect CTfY OF BREMERTON ED FAULK OPERATIONS, LLC � � Mayor B ward G Faulk Its DATE �� DATE `a— d� l � a..00q APPROVED AS TO FORM R R LUBOVICH, City Atto A T ' Cazol Et City Cler R u.ega�l.egallFila\Cu�nt Actrve Fda�Cmid MountnmWman supenntrndmt Ag�ament Ammdmau (2pp9) doc ( Ammdaimt Projenlonof Savieu AgnemenJ—Cruna Supmntcndmt PROFESSIONAL SERVICES AGREEMENT Greens Supenntendent THIS AGREEMENT is between the CITY OF BREMERTON, a mumc�pal corporahon (heremafter referred to as "City") and ED FAULK OPERATIONS, LLC , a Waslungton luruted l�abihty corporahon, (heremafter referred to as"Contractor") WHEREAS, the City is the owner of Gold Mountain Golf Club, wtuch ownerslup mcludes the land upon wluch sazd golf complex is located, the buildmgs and other improvements whtch aze a part thereof, and WHEREAS, the Gold Mounta�n Golf Club consists of two 18 hole golf courses, the Olympic and the Cascade course, ("Golf Courses" or "Courses"), a dnvmg range, the clubhouse and other related facihhes and shuctures, collechvely also referred to herem as ("Golf Club") WHEREAS, the City previously entered mto an agreement wrth Ed Faulk Contractor's pnnc�pal ("Pnncipal"), for greens mauitenance and related services at the Golf Club, and WHEREAS, the current agreement between the City and Contractor for these services expues December 31, 2007, and WHEREAS, the City desues to enter mto a new agreement with Contractor for greens mamtenance and related services at the Golf Club, NOW, THEREFORE, m consideration of the mutual covenants contamed herem, the part�es agree as follows 1 Scope of Work The City hereby agrees to retaui the Contractor to mamtain and improve the Golf Club as follows a The Contractor shall mamtazn and improve the Golf Club grounds, to include clubhouse grounds and surroundmg azeas, wluch will meet or exceed the standazd tn the mdustry for publ�c courses in the Puget Sound reg�on, and as more thoroughly specified m Exh�brt A b The Contractor shall devote its attention and energy on a full t�me bas�s to the performance of duties as Greens Supenntendent for the City durmg the term of t}us agreement Contractor and its employees shall conduct themselves at all hmes and m all matters m accordance w�th the standards accepted for Greens Supermtendents The Contractor's Pnnc�pal is requ�red to be a member of the Golf SupenntendenYs of Amenca, the Western Waslungton Golf Course SuperurtendenYs Assoc�ahon, and the Northwest Turf Grass Associatron PROFESSIONAL SERVICES AGREEMENT _ 1 Greens Supermtendent c The Contractor shall report duectly to the Duector of Parks and Recreahon or assigned des�gnee ("Duector") and work closely with the Golf Professionals who manage the golf operahons of the Golf Club The Contractor and Golf Professionals shall mutually agree upon the open and start of play daily, with the Duector resolvu�g any conflicts In all mstances, the start hme will be set to maxtmize the Golf Club's availabilrty to the pubhc d The Contractor's Pnncipal shall attend all meetmgs of the Gold Mountain Golf Complex Boazd of Duectors The Contractor may recommend and submit changes in pohcies and procedures to the Golf Complex Boazd at any regular meehng e The Contractor shall mazntam a good credit rahng m all wmmerc�al transacrions so as to not discredit the reputation or name of the C�ty of Bremerton f The Contractor shall supernse, direct, and tram its staff to perform the duhes and meet the requuements specified m Exlubit A g The Contractor's Pnncipal agrees to be available to attend regular and special meehngs of the Parks and Recreation Commission, and Crty Council, and shall be prepazed to discuss issues and ideas of mterest to the Contractor and Crty h The Contractor will comply with all audihng and accountmg requirements set forth by the City The Contractor's books and records will be open to mspection at any time dunng normal busmess hours 2 Term Tlus Agreement will commence on January 1, 2008 and termmate on December 31, 2009 3 Performance The Contractor shall supernse and duect the work as provided for in t}us Agreement, usmg its best slalls and attention From the perspective of grounds safety and turf condihon, the Contractor shall have the sole authonty to declaze when the courses are open for golf play and when golf carts will be allowed on the courses Any mamtenance prachces or renovahon pro�ects that would disrupt play w�ll be mutually agreed upon by the Contractor, Golf Professionals and Director The Contractor shall be solely responsible for the means, methods, tecluuques, sequences and procedures for coordmahng all portions of the work contemplated by tlus Agreement 4 Compensahon The Contractor will be paid seven hundred seventy-one thousand two hundred sixty four dollazs and NO/100 ($771,264 00) for the services descnbed herem for 2008 For 2009, Contractor will be paid seven hundred seventy-eight thousand mne hundred seventy-six dollazs and 64/100 ($778,976 64), a one percent (1%) mcrease from 2008 However, the D�rector is authonzed, m lus d�screhon, to negohate a further mcrease �n the compensahon for 2009 by an addihonal amount not to exceed three percent (3%) The fiscal standmg of the Crolf Club at yeaz end 2008 may influence th�s negotiahon, notwrthstandmg the performance of the Contractor Annual compensahon will be pazd m 24 equal mstaliments These installxnents will be made twice monthly on a mutually agreed schedule The parties PROFESSIONAL SERVICES AGREEMENT - 2 Greens Supermtendent aclmowledge and agree that, except as othenv�se provided for �n tlus agreement, tlus compensahon covers all the Contractor's costs of operarions mcludmg a Labor costs mcludmg, but not lumted to, medical coverage for Con�actor's employees, payroll, msurance, L&I, Board Expenses, dues, laundry, and travel b Taxes and fees mcludmg, but not limrted to, retatl sales, state and local B&O, federal mcome, social secunty, and unemployment, and c Other costs and expenses related to Contractor's operahons under ttus Agreement at the Golf Club 5 Agreement Opener In the event of extraordmary c�rcumstances, such as ma�or caprtal improvements to the facilihes or a ma�or tournament, requuing the Contractor to perform sigruficant addihonal work, the parhes may revisit the compensahon set forth m Sechon 4 above and negohate addihonal compensahon for the addit�onal work pursuant to a sepazate agreement , or as an amendment to ttus Agreement 6 Purchasmg All supplies, capital and equipment expendriures used by Contractor m the mamtenance of the facilrties such as fertihzers, small tools and parts for mamtenance eqmpment, will be the responsibihty of the Deparhnent of Pazks and Recreatron The Contractor agrees to coordmate all purchasmg requests for such rtems through the Duector 7 Fac�Lhes and Equ�pment The Contractor w�ll have the use of the City's maintenance facilrt�es at the Golf Club For the durahon of this Agreement, at no cost to the Contractor The Contractor agrees to keep the buildmg m a clean and orderly condihon throughout the term of tlus Agreement The Contractor agrees to make necessary mmor repairs to the mamtenance buildmg In the event of ma�or damage or destruchon to the mazntenance butlding that is not the responsibility of the Contractor, the C�ty agrees to repau� or replace said buildmg Contractor will promptly nohfy Department of Pazks and Recreatton of any buildu�g defects The Golf Club eqwpment mc]uding, but not lumted to, the imgarion system, dramage, benches, trash receptacles, flag shcks, ball washers and mamtenance equipment shall be provided by the City and be mamtauied m good worlung condition by the Contractor, and remams the property of the City The Contractor agrees to mazntaui the ungahon system m good work�ng condihon Repaus and mamtenance of the pump stahon beyond the capab�lrties of the Contractor will be the responsibihty of the Crty Unless specifically provided otherwise herem, all equ�pment for mamtauung the Golf Club, as specified m ttus Agreement, shall be provided by the C�ty � 8 Relahonsh�p of Parhes Contractor is skilled m the matters addressed m the Scope of Work and is performmg mdependent functions and respons�bilihes witivn its field of PROFESSIONAL SERVICES AGREEMENT 3 Greens Supenntendent expertise Contractor and its employees aze mdependent contractors and not employees of the City Contractor and rts employees have no authonty to bmd the Crty or to control the Crty's employees and other contractors It is agreed and understood that the Contractor shall be solely responsible for the lunng and finng of its employees All employees retained by Contractor to perform services under tivs Agreement shall be employees of Contractor and not employees of the City Contractor shall be responsible for payroll, payroll taxes, FICA, federal taxes, workers compensahon, Labor & Indushy, and medtcal msurance premmms and all other benefits associated w�th employment with Contractor As an independent contractor, Contractor is responsible for its own management The City's admmistration and enforcement of tlus Agreement shall not be deemed an exerc�se of managenal control over Contractor or its employees 9 Insurance Contractor agrees to purchase a policy of l�ability msurance wtuch shall protect it and rts employees &om any loss caused by property damage or personal m�ury at the Golf Club Said msurance pohcy shall be m the amount of One M�lhon Dollars ($1,000,000 00) for each occurrence The Contractor agrees that said uisurance shall name the City of Bremerton as an add�honal msured A copy of the certificate shall be requued to be kept on file with the C�ty Risk Manager 10 Superns�on Contractor shall report duectly to the Director and shall cooperate and work closely with the Golf Profess�onals In those situahons where conflict of mterest anses, the situahon will be brought immediately before the Duector for resoluhon 11 Liens and Insolvency The Contractor shall not allow any properiy of tha City to become encumbered wrth liens of any sort by reason of its action or om�ssion 12 Indemn►ty The Contractor agrees to defend, indemmfy and save hazmless the City, its appourted and elected officers and employees, &om and agamst any and all habil�ty, loss, costs, damage and expense, mcludmg costs and attomey fees m defense thereof because of achons, clauns or lawstuts for damages resultmg from personal or bod�ly m�ury, mcludmg death at any hme resulhng therefrom, sustuned or alleged to have been sustauied by any person or persons and on account of damage to property, ansmg or alleged to have ansen dttectly or mduectly out of or m consequence of the performance of Contractor under this Agreement, whether such m�unes to persons or damage to property �s due to the act, om�ssion or negligence of Contractor, its employees, subcontractors, agents, successors or ass�gns This provision shall be inappl�cable to the extent that the City �s �udicially found solely negligent for such damage or m�ury 13 Nondiscrimmahon Contractor shall not discnmmate m the employment or services to the pubhc on the basis of race, color, nahonal ongtn, sex, religion, age, mantal status, sexual onentahon or d�sabihty, except employment achons based on a bona fide occupat�onal quahficarion PROFESSIONAL SERVICES AGREEMENT - 4 Greens Supenntendent 14 Teruunat�on Ttus Agreement will termmate upon the happerung of any of the followmg events a Upon �ts normal termmahon if not renewed b Upon the death of the SupenntendenYs Pru�cipal c The physical disabil�ty of the SupenntendenYs Pnnc�pal wluch substanhally prevents the Pruicipal from performmg his duhes for a conhnuous penod of one (1) month or for an aggregate of three (3) months dunng each calendar yeaz d Pnnc�pal's conviction of a gross m�sdemeanor or felony e Ma�or damage or destruct�on of the Golf Club property, shuctures or equipment that is the sub�ect of tlus Agreement, when the City decides not to rebuild, and that damage or destruct�on will prevent Contractor from substanhally performmg its obhgahons under tlus Agreement f Conhmung mattenhon or neglect of dut�es g Suspension of Pnncipal from those associations Lsted under Subsechon 1(b) for more than tlurty (30) days h Substanhal breach of any provision of tlus Agreement In the event of ternunahon of ttus Agreement by reason of Pnncipal's death or disability, the Contractor shall be pazd its compensat�on to and mcludmg the month of death, or m the event of disab�hty, the Conh shall be paid to the last day oF the month m wkuch temunat�on occurs 15 Breach and Cure In the event that e�ther party claims that the other party is m violahon of subsecrion 14(� (g) and/or (h) of ttus Agreement, the party clazrrung the violation may give the other party a wntten notice of breach The party m breach shall have thirty (30) days after notice withui wluch to correct any achvrty or conduct claamed by the other to have conshtuted a breach of the Agreement Upon mutual agreement, a conference may be called between the parties m wkuch case every reasonable effort shall be made to reach an amicable soluhon At sazd conference, either party shall be enhtled to have representahves present In the event that either party shall, wittun said thuty (30) day penod, fazl to either conect the achvrty clauned to conshtute a substanhal breach of ttus Agreement or notify the other party m wntmg of theu demal of sa�d substanhal breach of ttus Agreement, then, m such event, ttus Agreement shall cease and termmate as of the expirahon of the thuty (30) day penod PROFESSIONAL SERVICES AGREEMENT 5 Greens Supenntendent 16 Nohce Any notice requ�red or pemutted to be given under tlus Agreement shall be sufficient �f m wnhng and personally served or sent by registered or certified mail In the case of the Contractor, it may be muled to PO Box 4130, Bremerton, Washmgton 98312, and in the case of the City Bremerton City Clerk, 345 Sixth Street, Suite 600, Bremerton, Waslvngton 98337 17 Applicable Law Tlus Agreement shall be controlled by the laws of the State of Wasiungton Contractor shall perform and comply with all apphcable laws of the Unhed States and the State of Waskungton, the Charter, Mumcipal Code and Ordmances of the City of Bremerton, and rules, regulahons, order and duechves of theu admmistrahve agencies and the officers thereof 18 Severabil�ty The mva]idity or unenforceabihty of any provision hereof shall, m no way, affect the vandity or enforceabihty of any other prov�sion 19 Warver Fazlure to ms�st upon stnct comphance with any terms, covenants or condirions of tivs Agreement shall not be deemed a wa�ver of such, nor shall any waiver or relmqu�shment of such nght or power at any tune be taken to be a wazver of any other breach 20 Mod�fcaUon Any wa�ver, alterarion or modificahon of any of the prov�sions of ttus Agreement or cancellation or replacement of ttus Agreement shall not be valid unless m wntmg and signed by the parties 21 Entvety Tlus Agreement, mcludmg the exlubits attached hereto and formmg a part hereof, aze all of the covenants, promises, agreements and condrtions, either oral or wntten, between the parties 22 Remed�es R�ghts under tlus Agreement aze cumulative, the failure to exercise on any occasion any nght shall not operate to forfeit such nght on another occasion The use of one remedy shall not be taken to exclude or wazve the nght to use another 23 Luenses and Fees Contractor shall secure and mamtam, in full force and effect dunng the term of tlus Agreement, all requued hcenses, pernuts and smular legal authonzations and comply with all requirements thereof Contractor is respons�ble for payment of all taxes and hcensmg fees necessary to perform rts obhgahons under ttus Agreement These taxes and fees mclude but are not lunrted to State mdustnal msurance, B&O, State professional Lcensmg, and C�ty busmess hcensmg If any taxes or fees due the City have been declared dehnquent, the Crty may withhold the delmquent amount, plus any addihonal charges ansmg from the delmquency, from any payments due Contractor 24 Use of Fac�lities and Equipment The Contractor and �ts employees shall use the factlit�es herem descnbed for those purposes and only for those purposes enumerated herem and other complex related mamtenance �tems, and for no personal uses PROFESSIONAL SERVICES AGREEMENT - 6 Greeas Supenntendent 25 FideLty Bond Contractor shall enter mto an honesty and fideLty bond m the sum of Ten Thousand Dollars ($1 Q000 00), nanung the C�ty as the msured thereunder IN WTTNESS WHEREOF the parties hereto have executed tlus Agreement the date and year mdicated ED FAULK OPERATIONS, LLC �a' `� Date EDWARD G FAiJLI Pnncipal CITY RE /�-ia-n7 Date CARY B ZEMAN, Mayor APPROVED AS TO FORM ROG A LUBOVICH, City Att R\LEGAL�F�Ies\Curtent Achve\Greens Supenntendent qgreemrnt 2007 doc PROFESSIONAL SERVICES AGREEMENT 7 Greens Supenntendent EXHIBIT A — DUTIES The C�ty hereby agrees to retam the Contractor to maintazn and improve the Gold Mountam Golf Complex courses, to mclude clubhouse grounds and surroundmg areas, and through Contractor's efforts w�ll stnve to have the cond�tion of the Gold Mountam Golf Complex m the best possible shape, sub�ect to budgetary and environmental hmitahons w�thin which the Contractor must perform th�s work The Contractor does agree to confornt to the generally accepted standards and pracrices of similar golf courses m the Westem Washmgton reg�on MAINTENANCE STANDARDS The followmg aze the pazameters of the mamtenance pract�ces and programs for the Cascade and Olymp�c courses A Maximum Mowmg He�ghts Cuttme Heieht Settmes Summer Wmter Tees 1/2" I/2" FatrwaYs 1 /2" 1 /2" Roughs 1-1/4" 1-1/4" Collars 1/2" 1/2" Greens 125" 150" B Mowmg Standards Freauencv Per Week Summer Wmter Tees 2 As Needed To Fairways 3 Mamtam Max�mum Roughs 2 Mowmg Heights Collars 3 Greens 7 C Bunkers Raked Frequencv Per Week Summer Wmter 3 As Needed D Aer�ficat�on Greens And Aorons All greens aenficahon will be coordmated with the pro statf to mitigate impact to tournaments and special events, and timed to max�mize revenues Spnng Aenfication will be performed w�th a minimum 5/8" hollow ttnes Fal1 � A�nficat�on will be performed with a mimmum 5/8" hollow tmes Tees. Fa�nvavs And Greens Surrounds These azeas w�11 be aenfied a mm�mum of once per year w�th 3/4" hollow tmes E Capital Pro�ects Capital pro�ects that have been approved by the C�ty that can be accomplished with the knowledge and sk�lls of the Golf Complex mamtenance staff but would require add�ttonal labor will be negot�ated as a separate contract or an addendum to the current contract ConstrucGon of new tees on Cascade Course will contmue as manpower and cond�tions allow Upgradmg �mgahon system on Cascade Course, � e new satelLtes and spnnkler heads will contmue as budget allows F Regular Mamtenance Pract�ces L�ght sand top-dressmg of the greens will be done monthly dunng the grow�ng season Cup location and tee mazkers w�ll be changed daily dunng the growmg season Fa�rway drvots will be filled with sand and seed monthly D�vots on tees will be filled w�th sand and seed daily Divots on dnvmg range tee will be filled wrth sand and seed a mmimum of 4 days per week Both courses will be kept free of storrn blow-down and branches Encroachmg brush and Scotch Broom wrth be cut back yearly Cart paths and bunkers will be edged a m�mmum of once per year All restrooms will be cleaned and samtized daily Clubhouse lawns and landscapmg w�ll be mamtamed regularly Parkmg lot and entry road will be kept clean and debns free G Equ�pment Mamtenance Regularly scheduled mamtenance w�ll be performed on all equ�pment to mm�m�ze wstly repa�rs and equ�pment down t�me All repa�rs and parts will be documented to help �dent�fy problem equ�pment and deteYmme cost effectiveness of repa�r vs replacement All cuttmg urut blades will be sharpened regularly to ensure a precise clean cut m order to keep the turf healthy and the playmg surface smooth H Irr�gahon The Contractor w�ll ma�ntam the imgahon system to the best of his abilihes The City will contract with an outs�de agent for preventive mamtenance of the �mgation pump stahons on both the Olympic course and the Cascade Course The Contractor w�ll work w�th the C�ty's Water Resource Manager to coordmate water usage and water presswe concerns I Chertucal Use The Contractor will work closely with [he Water Resource Division of the C�ty m the use of chem�cals and their appl�catton at the Gold Mountam Golf Complex A list of all pestic�des and other chem�cals must be mamtamed by the Contractor mcludmg the MSDS mformation sheets, dates and t�me applied, the person who applied the chemical and other mformahon that may be requ�red by OSHA, WISHA, Departrnent of Labor and Industry, EPA and any other c�ty, county, state, or federal agency that would have enforcement authonty J Ferhhzat�on The Contractor w�ll set up a fertil�zahon program for the Golf Complex and work closely with the D�rector of Parks and Recreahon to determme a yeazly budget for fertil�zer K. Tree Removal Hazazdous trees will be removed by the Gold Mountam ma�ntenance crew as requ�red for safety The Contractor w�ll work wrth the Crty Forestry Manager for removal of any trees that are not related to safety Contract Number: 4678 Vendor: ED FAULK OPERATIONS LLC Subject: Greens Superintendent Department: Parks File Class: LEG 12-1 Begin Date: O1/01/2008 End Date: 12_/31/2010 Review Date: 09/Ol/2010 Vault Date: Comments: Amendment #1-12/09 , , AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT Greens Superintendent WHEREAS, on December 12, 2007, the City of Bremerton, a municipal corporation of the State of Washington, "City" and Ed Faulk Operations, LLC., a Washington corporation, "Contractor" entered into and Agreement to provide greens maintenance and related services at the Gold Mountain Golf Club and � WHEREAS, the term of the Professional Services Agreement commenced on January 1, 2008 and shall terminate on December 31, 2009; and WHEREAS, the parties desire to amend the Agreement to extend the term through December 31, 2010; NOW THEREFORE, for mutual consideration, City and Contractor agree as follows: Section 2 of the Agreement is hereby amended to extend the ternunation date of the Professional Services Agreement to December 31, 2010. All other terms of the Agreement not specifically amended herein shall remain in full force and effect. CITY OF BREMERTON ED FAULK OPERATIONS, LLC. � �i , Mayor By. ward G. Faulk Its: DATE: � � DATE: � �- — � ( � �.�C� q APPROVED AS TO FORM: RO R LUBOVICH, City Atto ATT T: �� � � Carol Etg n, City Cler R:\Legal\Lega1�F'iles\Current Active Files\Gold Mountain\Greens superintendent Agreement Amendment (2009).doc Amendment Professional Services Agreement — Greens Superintendent Vendor Subject Department Status Code Amount Begin Date End Date Review Date Insurance Comments Contract Number 4678 ED FAULK OPERATIONS LLC Greens Superintendent Parks PRO File Class LEG 12-1 $1550240.64 01/01/2008 12/31/2009 09/01/2009 GL $ AL $ E&O $ Insurance Total $ Insurance Review Date PROFESSIONAL SERVICES AGREEMENT Greens Superintendent THIS AGREEMENT is between the CITY OF BREMERTON, a municipal corporation (hereinafter referred to as "City") and ED FAULK OPERATIONS, LLC., a Washington limited liability corporation, (hereinafter referred to as "Contractor"). WHEREAS, the City is the owner of Gold Mountain Golf Club, which ownership includes the land upon which said golf complex is located, the buildings and other improvements which are a part thereof; and WHEREAS, the Gold Mountain Golf Club consists of two 18 hole golf courses, the Olympic and the Cascade course, ("Golf Courses" or "Courses"), a driving range, the clubhouse and other related facilities and structures, collectively also referred to herein as ("Golf Club") WHEREAS, the City previously entered into an agreement with Ed Faulk, Contractor's principal ("Principal"), for greens maintenance and related services at the Golf Club; and WHEREAS, the current agreement between the City and Contractor for these services expires December 31, 2007; and WHEREAS, the City desires to enter into a new agreement with Contractor for greens maintenance and related services at the Golf Club; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work: The City hereby agrees to retain the Contractor to maintain and improve the Golf Club as follows: a. The Contractor shall maintain and improve the Golf Club grounds, to include clubhouse grounds and surrounding areas, which will meet or exceed the standard in the industry for public courses in the Puget Sound region, and as more thoroughly specified in Exhibit A. b. The Contractor shall devote its attention and energy on a full time basis to the performance of duties as Greens Superintendent for the City during the term of this agreement. Contractor and its employees shall conduct themselves at all times and in all matters in accordance with the standards accepted for Greens Superintendents. The Contractor's Principal is required to be a member of the Golf Superintendent's of America, the Western Washington Golf Course Superintendent's Association, and the Northwest Turf Grass Association. PROFESSIONAL SERVICES AGREEMENT - 1 Greens Superintendent c. The Contractor shall report directly to the Director of Parks and Recreation or assigned designee ("Director") and work closely with the Golf Professionals who manage the golf operations of the Golf Club. The Contractor and Golf Professionals shall mutually agree upon the open and start of play daily, with the Director resolving any conflicts. In all instances, the start time will be set to maximize the Golf Club's availability to the public. d. The Contractor's Principal shall attend all meetings of the Gold Mountain Golf Complex Board of Directors. The Contractor may recommend and submit changes in policies and procedures to the Golf Complex Board at any regular meeting. e. The Contractor shall maintain a good credit rating in all commercial transactions so as to not discredit the reputation or name of the City of Bremerton. f. The Contractor shall supervise, direct, and train its staff to perform the duties and meet the requirements specified in Exhibit A. g. The Contractor's Principal agrees to be available to attend regular and special meetings of the Parks and Recreation Commission, and City Council, and shall be prepared to discuss issues and ideas of interest to the Contractor and City. h. The Contractor will comply with all auditing and accounting requirements set forth by the City. The Contractor's books and records will be open to inspection at any time during normal business hours. 2. Term: This Agreement will commence on January 1, 2008 and terminate on December 31, 2009. 3. Performance: The Contractor shall supervise and direct the work as provided for in this Agreement, using its best skills and attention. From the perspective of grounds safety and turf condition, the Contractor shall have the sole authority to declare when the courses are open for golf play and when golf carts will be allowed on the courses. Any maintenance practices or renovation projects that would disrupt play will be mutually agreed upon by the Contractor, Golf Professionals and Director. The Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures for coordinating all portions of the work contemplated by this Agreement. 4. Compensation: The Contractor will be paid seven hundred seventy-one thousand two hundred sixty four dollars and N0/100 ($771,264.00) for the services described herein for 2008. For 2009, Contractor will be paid seven hundred seventy-eight thousand nine hundred seventy-six dollars and 64/100 ($778,976.64), a one percent (1 %) increase from 2008. However, the Director is authorized, in his discretion, to negotiate a further increase in the compensation for 2009 by an additional amount not to exceed three percent (3%). The fiscal standing of the Golf Club at year end 2008 may influence this negotiation, notwithstanding the performance of the Contractor. Annual compensation will be paid in 24 equal installments. These installments will be made twice monthly on a mutually agreed schedule. The parties PROFESSIONAL SERVICES AGREEMENT - 2 Greens Superintendent acknowledge and agree that, except as otherwise provided for III this agreement, this compensation covers all the Contractor's costs of operations including: a. Labor costs including, but not limited to, medical coverage for Contractor's employees, payroll, insurance, L&I, Board Expenses, dues, laundry, and travel. b. Taxes and fees including, but not limited to, retail sales, state and local B&O, federal income, social security, and unemployment, and c. Other costs and expenses related to Contractor's operations under this Agreement at the Golf Club. 5. Agreement Opener: In the event of extraordinary circumstances, such as major capital improvements to the facilities or a major tournament, requiring the Contractor to perform significant additional work, the parties may revisit the compensation set forth in Section 4 above and negotiate additional compensation for the additional work pursuant to a separate agreement or as an amendment to this Agreement. 6. Purchasing: All supplies, capital and equipment expenditures used by Contractor in the maintenance of the facilities such as fertilizers, small tools and parts for maintenance equipment, will be the responsibility of the Department of Parks and Recreation. The Contractor agrees to coordinate all purchasing requests for such items through the Director. 7. Facilities and Equipment: The Contractor will have the use of the City's maintenance facilities at the Golf Club for the duration of this Agreement, at no cost to the Contractor. The Contractor agrees to keep the building in a clean and orderly condition throughout the term of this Agreement. The Contractor agrees to make necessary minor repairs to the maintenance building. In the event of major damage or destruction to the maintenance building that is not the responsibility of the Contractor, the City agrees to repair or replace said building. Contractor will promptly notify Department of Parks and Recreation of any building defects. The Golf Club equipment including, but not limited to, the irrigation system, drainage, benches, trash receptacles, flag sticks, ball washers and maintenance equipment shall be provided by the City and be maintained in good working condition by the Contractor, and remains the property of the City. The Contractor agrees to maintain the irrigation system in good working condition. Repairs and maintenance of the pump station beyond the capabilities of the Contractor will be the responsibility of the City. Unless specifically provided otherwise herein, all equipment for maintaining the Golf Club, as specified in this Agreement, shall be provided by the City. 8. Relationship of Parties: Contractor is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of PROFESSIONAL SERVICES AGREEMENT - 3 Greens Superintendent expertise. Contractor and its employees are independent contractors and not employees of the City. Contractor and its employees have no authority to bind the City or to control the City's employees and other contractors. It is agreed and understood that the Contractor shall be solely responsible for the hiring and firing of its employees. All employees retained by Contractor to perform services under this Agreement shall be employees of Contractor and not employees of the City. Contractor shall be responsible for payroll, payroll taxes, FICA, federal taxes, workers compensation, Labor & Industry, and medical insurance premiums and all other benefits associated with employment with Contractor. As an independent contractor, Contractor is responsible for its own management. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Contractor or its employees. 9. Insurance: Contractor agrees to purchase a policy of liability insurance which shall protect it and its employees from any loss caused by property damage or personal injury at the Golf Club. Said insurance policy shall be in the amount of One Million Dollars ($1,000,000.00) for each occurrence. The Contractor agrees that said insurance shall name the City of Bremerton as an additional insured. A copy of the certificate shall be required to be kept on file with the City Risk Manager. 10. Supervision: Contractor shall report directly to the Director and shall cooperate and work closely with the Golf Professionals. In those situations where conflict of interest arises, the situation will be brought immediately before the Director for resolution. 11. Liens and Insolvency: The Contractor shall not allow any property of the City to become encumbered with liens of any sort by reason of its action or omission. 12. Indemnity: The Contractor agrees to defend, indemnify and save harmless the City, its appointed and elected officers and employees, from and against any and all liability, loss, costs, damage and expense, including costs and attorney fees in defense thereof because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including death at any time resulting therefrom, sustained or alleged to have been sustained by any person or persons and on account of damage to property, arising or alleged to have arisen directly or indirectly out of or in consequence of the performance of Contractor under this Agreement, whether such injuries to persons or damage to property is due to the act, omission or negligence of Contractor, its employees, subcontractors, agents, successors or assigns. This provision shall be inapplicable to the extent that the City is judicially found solely negligent for such damage or lllJUry. 13. Nondiscrimination: Contractor shall not discriminate in the employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, sexual orientation or disability, except employment actions based on a bona fide occupational qualification. PROFESSIONAL SERVICES AGREEMENT - 4 Greens Superintendent 14. Termination: This Agreement will terminate upon the happening of any of the following events: a. Upon its normal termination if not renewed. b. Upon the death of the Superintendent's Principal. c. The physical disability of the Superintendent's Principal which substantially prevents the Principal from performing his duties for a continuous period of one (1) month or for an aggregate of three (3) months during each calendar year. d. Principal's conviction of a gross misdemeanor or felony. e. Major damage or destruction of the Golf Club property, structures or equipment that is the subject of this Agreement, when the City decides not to rebuild, and that damage or destruction will prevent Contractor from substantially performing its obligations under this Agreement. f. Continuing inattention or neglect of duties. g. Suspension of Principal from those associations listed under Subsection l(b) for more than thirty (30) days. h. Substantial breach of any provision of this Agreement. In the event of termination of this Agreement by reason of Principal's death or disability, the Contractor shall be paid its compensation to and including the month of death, or in the event of disability, the Contractor shall be paid to the last day of the month in which termination occurs. 15. Breach and Cure: In the event that either party claims that the other party is in violation of subsection 14(f) (g) and/or (h) of this Agreement, the party claiming the violation may give the other party a written notice of breach. The party in breach shall have thirty (30) days after notice within which to correct any activity or conduct claimed by the other to have constituted a breach of the Agreement. Upon mutual agreement, a conference may be called between the parties in which case every reasonable effort shall be made to reach an amicable solution. At said conference, either party shall be entitled to have representatives present. In the event that either party shall, within said thirty (30) day period, fail to either correct the activity claimed to constitute a substantial breach of this Agreement or notify the other party in writing of their denial of said substantial breach of this Agreement, then, in such event, this Agreement shall cease and terminate as of the expiration of the thirty (30) day period. PROFESSIONAL SERVICES AGREEMENT - 5 Greens Superintendent 16. Notice: Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and personally served or sent by registered or certified mail. In the case of the Contractor, it may be mailed to: PO Box 4130, Bremerton, Washington 98312, and in the case of the City: Bremerton City Clerk, 345 Sixth Street, Suite 600, Bremerton, Washington 98337. 17. Applicable Law: This Agreement shall be controlled by the laws of the State of Washington. Contractor shall perform and comply with all applicable laws of the Untied States and the State of Washington; the Charter, Municipal Code and Ordinances of the City of Bremerton; and rules, regulations, order and directives of their administrative agencies and the officers thereof. 18. Severability: The invalidity or unenforceability of any provision hereof shall, in no way, affect the validity or enforceability of any other provision. 19. Waiver: Failure to insist upon strict compliance with any terms, covenants or conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or relinquishment of such right or power at any time be taken to be a waiver of any other breach. 20. Modification: Any waiver, alteration or modification of any of the provisions of this Agreement or cancellation or replacement of this Agreement shall not be valid unless in writing and signed by the parties. 21. Entirety: This Agreement, including the exhibits attached hereto and forming a part hereof, are all of the covenants, promises, agreements and conditions, either oral or written, between the parties. 22. Remedies: Rights under this Agreement are cumulative; the failure to exercise on any occasion any right shall not operate to forfeit such right on another occasion. The use of one remedy shall not be taken to exclude or waive the right to use another. 23. Licenses and Fees: Contractor shall secure and maintain, in full force and effect during the term of this Agreement, all required licenses, permits and similar legal authorizations and comply with all requirements thereof. Contractor is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, B&O, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Contractor. 24. Use of Facilities and Equipment: The Contractor and its employees shall use the facilities herein described for those purposes and only for those purposes enumerated herein and other complex related maintenance items, and for no personal uses. PROFESSIONAL SERVICES AGREEMENT - 6 Greens Superintendent 25. Fidelity Bond: Contractor shall enter into an honesty and fidelity bond in the sum ofTen Thousand Dollars ($10,000.00), naming the City as the insured thereunder. IN WITNESS WHEREOF the parties hereto have executed this Agreement the date and year indicated. \1- 4-D7 Date ED FAULK OPERATIONS, LLC. E~U~ ~"'IOlw07 Date APPROVED AS TO FORM: A. LUBOVICH, City Att R:\LEGAL\FiJes\Current Active\Greens Superintendent Agreement 2007.doc PROFESSIONAL SERVICES AGREEMENT - 7 Greens Superintendent EXHIBIT A - DUTIES The City hereby agrees to retain the Contractor to maintain and improve the Gold Mountain Golf Complex courses, to include clubhouse grounds and surrounding areas, and through Contractor's efforts will strive to have the condition of the Gold Mountain Golf Complex in the best possible shape, subject to budgetary and environmental limitations within which the Contractor must perform this work. The Contractor does agree to conform to the generally accepted standards and practices of similar golf courses in the Western Washington region. MAINTENANCE STANDARDS: The following are the parameters of the maintenance practices and programs for the Cascade and Olympic courses: A. Maximum Mowing Heights Cutting Height Settings Summer Winter 1/2" 1/2" 1/2" 1/2" 1-1/4" 1-1/4" 112" 112" .125" .150" Tees Fairways Roughs Collars Greens B. Mowing Standards Frequency Per Week Summer Winter Tees Fairways Roughs Collars Greens 2 3 2 3 7 As Needed To Maintain Maximum Mowing Heights C. Bunkers Raked Frequency Per Week Summer Winter 3 As Needed D. Aerification Greens And Aprons: All greens aerification will be coordinated with the pro staff to mitigate impact to tournaments and special events, and timed to maximize revenues. Spring: Aerification will be performed with a minimum 5/8" hollow tines Fall: Airification will be performed with a minimum 5/8" hollow tines Tees, Fairways And Greens Surrounds: These areas will be aerified a minimum of once per year with 3/4" hollow tines. E. Capital Projects Capital projects that have been approved by the City that can be accomplished with the knowledge and skills of the Golf Complex maintenance staff but would require additional labor will be negotiated as a separate contract or an addendum to the current contract. Construction of new tees on Cascade Course will continue as manpower and conditions allow. Upgrading irrigation system on Cascade Course, i.e. new satellites and sprinkler heads will continue as budget allows. F. Regular Maintenance Practices Light sand top-dressing of the greens will be done monthly during the growmg season Cup location and tee markers will be changed daily during the growing season Fairway divots will be filled with sand and seed monthly Divots on tees will be filled with sand and seed daily Divots on driving range tee will be filled with sand and seed a minimum of 4 days per week Both courses will be kept free of storm blow-down and branches. Encroaching brush and Scotch Broom with be cut back yearly. Cart paths and bunkers will be edged a minimum of once per year. All restrooms will be cleaned and sanitized daily. Clubhouse lawns and landscaping will be maintained regularly. Parking lot and entry road will be kept clean and debris free. G. Equipment Maintenance Regularly scheduled maintenance will be performed on all equipment to minimize costly repairs and equipment down time All repairs and parts will be documented to help identify problem equipment and determine cost effectiveness of repair vs. replacement All cutting unit blades will be sharpened regularly to ensure a precise clean cut in order to keep the turf healthy and the playing surface smooth H. Irrigation The Contractor will maintain the irrigation system to the best of his abilities. The City will contract with an outside agent for preventive maintenance of the irrigation pump stations on both the Olympic course and the Cascade Course. The Contractor will work with the City's Water Resource Manager to coordinate water usage and water pressure concerns. I. Chemical Use The Contractor will work closely with the Water Resource Division of the City in the use of chemicals and their application at the Gold Mountain Golf Complex. A list of all pesticides and other chemicals must be maintained by the Contractor including the MSDS information sheets, dates and time applied, the person who applied the chemical and other information that may be required by OSHA, WISHA, Department of Labor and Industry, EP A and any other city, county, state, or federal agency that would have enforcement authority. J. Fertilization The Contractor will set up a fertilization program for the Golf Complex and work closely with the Director of Parks and Recreation to determine a yearly budget for fertilizer. K. Tree Removal Hazardous trees will be removed by the Gold Mountain maintenance crew as required for safety. The Contractor will work with the City Forestry Manager for removal of any trees that are not related to safety.