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HomeMy WebLinkAbout5063\ Contract Number: 5063 Vendor: Sub� ect : Department: File Class: Begin Date: End Date: Review Date: Vault Date: KITSAP HARBOR TOURS, LLC Foot Ferry Service and Funding City Clerk LEG 12-1 8/2/2011 8/31/2011 9/1/2011 Comments : PROFESSIONAL SERVICES AGREEMENT FOOT FERRY SERVICE AND FUNDING AGREEMENT The City of Bremerton ("City") and referred to collectively as the "Parties," professional services Kitsap Harbor Tours, LLC ("Contractor"), enter into the following Agreement for I. Scope: The Contractor agrees to perform the services more specifically described in the Scope of Work, dated June 1, 2011, 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 VII G of this Agreement If the Scope of Work provides for unspecified additional services such services shall only be pertormed upon the express written request of the City Contractor further represents that the services furnished under this Agreement will be performed m accordance with generally accepted professional practices in effect at the time such services are performed II. Terrr�: The City and the Contractor agree that work wdl begin on the tasks described in Exhibit A immediately upon execution of this Agreement The parties agree that the work described in Exhibit A is to be completed as provided for in the work schedule attached hereto as Exhibit A, provided however, that additional time shall be granted by the City for excusable delays or extra work as provided for in section IX (A) of this agreement III. Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Contractor in an amount not to exceed $6,435 00 (Six Thousand Four Hundred and Thirty Five Dollars) Contractor's charges and bills shall conform to the fee schedule attached hereto as Exhibit A and incorporated herein by this reference The Contractor shall submit regular bdling statements detailing work performed and amount charged on each task or portion thereof The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule Upon receipt of a conforming billing statement, the City shall promptly process payment PROVIDED, HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks under the time frame set forth in Section II herein The Contractor's labor rates and bdling fees shall be as delineated m Exhibit A Contractor shall not perForm work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement Contractor shall only be compensated for additional services if requested pursuant to Section I and, if not otherwise provided, such compensation shall be in accordance with Exhibit A If a biliing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance Such withholding does not Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 1 of 7 relieve Contractor of its obligations under this Agreement IV. Relationship of Parties: Contractor represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibdities within its field of expertise Contractor and its personnel are independent Contractors and not employees of the City Contractor 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 avadable from the City to the employees, agents, representatives, or sub-Contractors of the Contractor Contractor wdl be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, representatives and sub-Contractors during the performance of this Agreement The City may, during the term of this Agreement, engage other independent Contractors to perform the same or similar work 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 personnel As an independent Contractor, 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, Business & 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 Contractor V. Indemnification: Contractor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, in�unes, 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 in�uries 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 �urisdiction determine that this Agreement is sub�ect to RCW 4 24 115, then, in the event of liability for damages arising out of bodily inJury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 2 of 7 FOR THE PURPOSES 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 VI. Insurance: The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for in�uries 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, employees, sub-Contractors or sub- Contractors Before beginning work on the proJect described in this Agreement, the Contractor shall provide a Certificate of Insurance evidencing Commercial General Liabilitv insurance wntten on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal in�ury, boddy in�ury and property damage Coverage shall mclude but not be limited to blanket contractual, products/completed operations/ broad form property damage, explosion, collapse and underground (XCU) if applicable, and employer's liabdity, and Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor All required policies shall be provided on an "occurrence" basis except professional liabdity insurance (if required), which may be provided on a"claims-made" basis The City shall be named as an additional msured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Contractor and a copy of an endorsement that is acceptable to the City, which names the City as an additional msured shall be attached to the Certificate of Insurance The City reserves the right to receive a certified copy of all the required msurance policies and endorsements The City further reserves the right to re�ect any unacceptable policies and/or endorsements The Contractor's Commercial General Liabdity insurance shall contam a clause stating that coverage shall apply separately to each msured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability The Contractor's insurance shall be primary insurance as respects the City and it shall be an affirmative obligation upon Contractor to advise the City's Risk Manager by fax at (360) 473-5161, or by certified mail, return receipt requested to City of Bremerton, attn Risk Management, 345 6th Street, Suite 600, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy set Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 3 of 7 out herein, and fadure to do so shall be construed to be a breach of this Agreement 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 all endorsements as evidence of coverage VII. General Conditions: A Reports and Information When requested by the City, Contractor 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 Contractor shall maintain accounting records in accordance with Generally Accepted Accounting Pnnciples (GAAP) to substantiate all bdled amounts B Ownership and Use of Records and Documents Original documents, drawings, designs and reports, including those in electronic format, developed under this Agreement are the property of the City All written information submitted by the City to the Contractor in connection with the services performed by the Contractor under this Agreement wdl be safeguarded by the Contractor to at least the same extent as the Contractor safeguards like information relating to its own business If such information is publicly available or is already m Contractor's possession or known to it, or is rightfully obtained by the Contractor from third parties, Contractor shall bear no responsibdity for its disclosure, inadvertent or otherwise All data, documents and files created by Contractor under this Agreement may be stored at Contractor's office in Sdverdale, Washington Contractor shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifymg and updating as necessary until such time as the City is capable of storing such information m the City's offices Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Contractor pursuant to this Agreement, are instruments of service with respect to the pro�ect and are the property of the City Any reuse by the City for other than the specific purpose intended wdl be at City's sole risk C Work Performed at Contractor's Risk Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub- Contractors in the pertormance of the work hereunder and shall utilize all protection necessary for that purpose All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work D Place of Work The Contractor shall perform the work authorized under this Agreement as described m Exhibit A Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 4 of 7 agreed upon by the parties E Entire Agreement 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 F Severabditv Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect G Modification This Agreement may only be modified by written instrument signed by both Parties H Written Notices Ail communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1 st 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 writmg City Address City Clerk City of Bremerton 345 6th Street, Suite 600 Bremerton, WA 98337 Phone 360-473-5323 Fax 360-473-5200 C�l.lp�ii� .r •1�•, : ��� n ,. Rick Leenstra, Jr Kitsap Harbor Tours 14555 Olympic View Loop Rd NW Sdverdale, WA 98383 Phone 360-692-1846 Fax 360-307-0140 I 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 J Non-Waiver of Breach The fadure of the City to insist upon strict perFormance of any of the covenants and agreements contained herem, or to exercise any option herem 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 K Compliance with Laws Contractor shall comply with all applicable Federal, State, and local laws in pertorming its obligations under this Agreement L Choice of Law and Venue This Agreement shall be interpreted according to the laws of the State of Washington Any �ud�cial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court M Attorneys' 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 Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 5 of 7 N Assignment Any assignment of this agreement by the Contractor without the written consent of the City shall be void VIII. Nondiscrimination• Contractor shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or sexual orientation except for employment actions based on bona fide occupational qualification IX. Termination: This Agreement shall remain in force untd completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience This Agreement may be immediately termmated 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 fadure of performance within thirty (30) days of the termmating Party's sending notice to the non-performing Party Any Notice by Contractor 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 fundmg is withdrawn, reduced or limited in any way, or the pro�ect 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 Excusable Delays The right of Contractor to proceed shall not be terminated nor shall Contractor be charged with liquidated damages for any delays in the completion of the work due to 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency, 2) any acts of the City, its Contractors, or other public agencies causing such delay, and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Contractor, mcluding, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity PROVIDED, HOWEVER, that the Contractor must promptly notify the City within ten (10) calendar days in writmg of the cause of the delay If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a penod of time commensurate with the period of excusable delay B Rights Upon Termination In the event of termination, the City shall pay for all services pertormed by the Contractor to the effective date of terminat�on, as described on a final invo�ce submitted to the City After termination, the City may take possession of all records and data within the Contractor's possession pertaining to this pro�ect which may be used by the City without restriction Any such use not related to the pro�ect which Contractor was contracted to pertorm shall be without liability or legal exposure to the Contractor Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 6 of 7 CITY OF BREMERTON : � �� � /��[�► , ,, � - - . Appro to form Br erton ity Attorney CONTRACTOR By � �s-� Y-�s"�- its - � �-�,� ., Date �--Z._� � . �� , � ,,�till Bremerton/ K�tsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Page 7 of 7 Exhibit A Scope of Work/Work Schedule/Fee Schedule June 1, 2011 Foot Ferry Service Schedule Kitsap Harbor Tours shall provide foot ferry service befinreen the City of Port Orchard and the City of Bremerton befinreen the hours of 9 00 a m and 8 00 p m on the following dates June 19 and 26 July 3, 10, 17, 24, and 31 August 14, 21, and 28 2 Foot Ferry Costs and Charaes a The foot ferry service will be avadable to the general public on the hours and dates set forth above at a cost of $2 00 per person each way for adults and children over the age of 5 Chddren under the age of 5 shall ride free b The cost for Kitsap Harbor Tours to operate the foot ferry service is $146 25 per hour 3 Biliing and Payment Kitsap Harbor Tours shall generate a monthly invoice in accordance with the following terms a The cost to operate the foot ferry on a monthly basis ($146 25 x the number of hours of operation) shall be reduced by the amount of revenue coliected from ferry passengers and the net amount shall be billed in equal one- third shares to City of Bremerton, Port of Bremerton, and City of Port Orchard The City of Bremerton is only responsible for its one-third share b All invoices payable by City shall be addressed to City Cierk, City of Bremerton, 345 6th Street, Bremerton, WA 98337 All invoices shall be paid by City warrant within sixty (60) days of receipt of a proper invoice Bremerton/ Kitsap Harbor Tours, LLC FOOT FERRY SERVICE AND FUNDING AGREEMENT Exh�bit A