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4903
CRESSMAN, DONNA
Concessions & Vending
Parks
LEG 12-1
03/O1/2010
10/31/2010
10/01/2010
0
PROFESSIONAL SERVICES AGREEMENT
(Parks & Recreation Concessions and Vending)
The C' of Bremerton ("City") and �b�(1 fl ��1��.� /`n A�
(dba: ("Concessionaire"), referred to collectively as the "Parties", enter
into the fol owing Agreement for professional services:
I. Scope: The Concessionaire agrees to perform the services more specifically described in
the Scope of Work, dated March 1, 2010, including any attachments thereto, attached hereto as
Exhibit A, which is incorporated by reference herein. The Scope of Work may be modified only
pursuant to Section IX (E) or Section XI of this Agreement. If the Scope of Work provides for
unspecified additional services such services shall only be performed upon express written
request of the City. Concessionaire further represents that the services furnished under this
Agreement will be performed in accordance with generally accepted professional practices in
effect at the time such services are performed.
II. Term: The contract period begins Marcln 1, 2010 and terminates on October 31, 2010.
The term of this contract may be modified only pursuant to Section IX or Section XI of this
Agreement.
III. Consideration: In exchange for the concession right and privilege granted herein for the
term as specified, the Concessionaire shall pay the City 5.0% of total gross pre-tax concession
and catering sales at Pendergast Regional Park. Concession lease payments and Revenue
Reports are due 10 days after the month of sale.
IV. Licenses, Permits, and Inspections: The Concessionaire shall maintain, at their own
expense, all business licenses, health department pertnits and governmental permits and
certificates necessary for conducting business in Bremerton and Kitsap County. Concessionaire
shall provide copies of current licenses and permits to the Department prior to operating on City
property. The Concessionaire shall allow the Bremerton-Kitsap County Health Department to
make regular and ordinary inspections of its facilities and equipment as said Health Department
may deem proper.
V. Washington State Leasehold Excise Taxes
Washington State Leasehold Excise Taxes are not part of the Concession Fee Payment described
herein. Payment of Washirigton State Leasehold Excise Tax shall not be combined with
Concession payment and shall be listed as a separate item on all accounting, billing, statements
and check stubs. The Concessionaire shall remit to the City with each Concession Fee payment
the appropriate payment for Washington State Leasehold Excise T�es.
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VI. Relationship of Parties: Concessionaire represents that it is skilled in the matters
addressed in the Scope of Work and is performing independent functions and responsibilities
within its field of expertise. Concessionaire and its personnel are independent contractors and
not employees of the City. Concessionaire and its personnel have no authority to bind the City
or to control the City's employees and other contractors. None of the benefits provided by the
City to its employees, including but not limited to, compensation, insurance, and unemployment
insurance are available from the City to the employees, agents, representatives, or sub-
contractors of the Concessionaire. Concessionaire will be solely and entirely responsible for its
acts and for the acts of Concessionaire's agents, employees, representatives and sub-contractors
during the performance of this Agreement. T'he City may, during the term of this Agreement,
engage other independent concessionaires to perform the same or similax work at times and
locations where the Concessionaire chooses not to open the concession as defined in this
Agreement.
As an independent contractor, Concessionaire 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 Concessionaire or its personnel.
As an independent contractor, Concessionaire is responsible for payment of all taxes and
licensing fees necessary to perform its obligation under this Agreement. These taxes and fees
include but are not limited to State industrial insurance, Business and Occupation, 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 Concessionaire.
VII. Indemnification: Concessionaire shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages,
losses or suits, including all legal costs and attorney fees, arising out of or in connection with the
performance of this Agreement, except for that portion of the injuries and damages caused by the
City's sole negligence.
The City's review or acceptance of any of the work when completed shall not be grounds
to avoid any of these covenants of indemnification. Should a court of competent jurisdiction
determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for
damages arising out of bodily injury to persons or damage to property caused by or resulting
from the concurrent negligence of the Concessionaire and City, its officers, officials, employees,
agents and volunteers, the Concessionaire's liability hereunder shall be only to the extent of the
Concessionaire's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
1NDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONCESSIONAIRE'S
WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLEY
FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this Agreement.
Page 2 of 6
VIII. Insurance: The Concessionaire 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 Concessionaire,
its agents, representatives, employees, and sub-contractors.
Before beginning work as described in this Agreement, the Concessionaire shall provide
a Certificate of Insurance evidencing:
1. Commercial General Liabilitv insurance written on an occurrence basis with limits no
less than $1,000,000 combined single limit per occurrence and general aggregate for
personal injury, bodily injury and property damage. Coverage sha11 include but not be
limited to: blanket contractual; products/completed operations/broad form property
damage; explosion, collapse and underground (XCU) if applicable; and employer's
liability; and
2. Excess Liabilitv insurance with limits not less than $1,000,000 limit per occurrence and
aggregate.
Any payment of deductible or self insured retention shall be the sole responsibility of the
Concessionaire.
All required policies shall be provided on an"occurrence" basis except professional
liability insurance (if required), which may be provided on a"claims-made" basis. The City
shall be named as an additional insured on the Commercial General Liability insurance policy, as
respects work performed by or on behalf of the Concessionaire and a copy of an endorsement
that is acceptable to the City, which names the City as an additional insured shall be attached to
the Certificate of Insurance. The City reserves the right to receive a certified copy of all the
required insurance policies and endorsements. The City further reserves the right to reject any
unacceptable policies and/or endorsements.
The Concessionaire's Commercial General Liability insurance shall contain a clause
stating the coverage shall apply separately to each insured against whom claim is made or suit is
brought, except with respects to the limits of the insurer's liability.
The Concessionaires' insurance shall be primary insurance as respects the City and the
City shall be given thirty (30) days prior written notice by certified mail, return receipt requested,
of any cancellation, suspension or material change in coverage.
The City also reserves its unqualified right to require at any time and for any reason,
proof of coverage in the form of a duplicate of the insurance policy with a11 endorsements as
evidence of coverage.
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IX. General Conditions:
A. Reports and Information: When requested by the City, Concessionaire shall furnish
periodic reports and documents on matters covered by this Agreement. The reports and
documents shall be furnished in the time and form requested. Concessionaire shall maintain
accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to
substantiate all revenue. Concessionaire shall furnish revenue reports with the Concession fee
payment due 10 (ten) days after month of sale.
B. Work Performed at Concessionaire's Risk: Concessionaire shall take all precautions
necessary and shall be responsible for the safety of its employees, agents, and sub-contractors in
the performance of the work hereunder and shall utilize all protection necessary for that purpose.
All work shall be done at Concessionaire's own risk, and Concessionaire shall be responsible for
any loss of or damage to materials, tools, or other articles used or held for use in connection with
services provided pursuant to this Agreement.
C. Entire A�reement: This Agreement and its Exhibits constitutes the entire agreement
between the Parties, and the Parties acknowledge that there are no other agreements, written or
oral, that have not been set forth in the text of this Agreement.
D. Severabilitv: Should any part of this Agreement be found void, the balance of the
Agreement shall remain in full force and effect.
E. Modification: This Agreement may only be modified by written instrument signed by
both Parties.
F. Written Notices: All communications regarding this Agreement shall be sent to the
parties at the addresses listed below by registered or 1 S ` class mail, or by personal service, and
shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement
or such other address as may be hereafter specified in writing.
City Address
City Clerk
345 6�' St., Suite 600
Concessionaire Address
�Dl'1 �(1 �1 ���Sm 11 e�
dba:
Bremerton, WA 98337
bo55 ����la..�-�iS �
�C.�r�P,a�_ �.��A 983b7
G. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a
waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be
deemed waiver of any other right or power.
Page 4 of 6
H. Non-Waiver of Breach: The failure of the City to insist upon strict performance of
any of the covenants and agreements contained herein, or to exercise any option herein conferred
in one or more instances shall not be construed to be a waiver or relinquishment of said
covenants, agreements or options, and the same shall be and remain in full force and effect.
I. Compliance with Laws: Concessionaire shall comply with all applicable Federal, State,
and local laws in performing its obligations under this Agreement.
J. Choice of Law and Venue: This Agreement shall be interpreted according to the laws
of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement
shall be brought in Kitsap County Superior Court.
K. Attornevs' Fees: In the event of litigation to enforce any of the terms or provisions
herein, each party shall pay all its own costs and attorney's fees.
L. Assi n� Any assignment of this agreement by the Concessionaire without the
written consent of the City shall be void.
X. Nondiscrimination: Concessionaire shall not discriminate in employment or services to
the public on the basis of race, color, national origin, sex, religion, age, marital status, sexual
orientation, or disability, except for employment actions based on bona fide occupational
qualification.
XI. Termination: This Agreement may be terminated, at will, by either party upon thirty
(30) days written notice. This Agreement may be immediately terminated for cause by a Party if
the other Party substantially fails to perform through no fault of the terminating Party, and the
non-performing Party does not commence correction of the failure of performance within five
(5) days of the terminating Party's sending notice to the non-performing Party. Any Notice by
Concessionaire shall include a report showing the status of all items listed in the Scope of Work
current through the termination date.
If the City receives reimbursement by any federal, state, or other source for work
described in Section I herein, and that funding is withdrawn, reduced or limited in any way, or
the project is cancelled or substantially reduced after the execution date of this Agreement and
prior to the completion of the work, the City may summarily terminate this Agreement.
A. Ri ts Upon Termination: In the event of termination, the City shall be entitled to
reports showing the status of all items listed in the Scope of Work current through the
termination date.
B. Surrender of Premises and Removal of Propertv: Upon termination or expiration of
this Agreement, The Concessionaire shall surrender the concession facilities to the City and
promptly surrender and deliver to the City all keys that it may have to any and all parts of
concession facilities. The Concessionaire shall remove all equipment, supplies and merchandise
from the Premises by November 15 of the year this Agreement expires or within fourteen (14)
days of termination of this Agreement.
Page 5 of 6
The Concessionaire shall surrender the concession facilities in a clean condition ensuring that all
counters, floors and appliances are cleaned and all garbage and food items removed.
CITY OF BREMERTON
By: �l.eYA�D
its: -�QuA�u.s A�o R�p� fMA�N�4Gil�,�2.
Date: �fLl,' I d
Approved as to form:
Bremerton City Attorney
CONCESSIONAIRE
By: :; ' (,'
its: c.�-�'juy�w✓
Date: ;�a 5 �/ C�
Attest•
�� � � ��
City Cler
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