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HomeMy WebLinkAbout1 - Original Submission_ PSA - DBA Mainstreet Association Program Funding Agreement - UpdatedPage 1 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 PROFESSIONAL SERVICES AGREEMENT [DOWNTOWN BREMERTON ASSOCIATION –MAINSTREET AMERICA PROGRAM FUNDING] The City of Bremerton (“City”) and The Downtown Bremerton Association or (“Consultant”), referred to collectively as the “Parties,” enter into the following Agreement for professional services: I.Scope: DOWNTOWN BREMERTON ASSOCIATION shall provide the operations of the Mainstreet America Program for the benefit of the City of Bremerton. The Mainstreet America Program Funding description of services, attached hereto as Exhibit A, sets forth the terms of their agreement. The City's role in this Agreement is only funding of expenses up to the compensation amount. II.Term: The City and the DOWNTOWN BREMERTON ASSOCIATION agree that work will 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 by December 31, 2022, 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 DOWNTOWN BREMERTON ASSOCIATION in an amount not to exceed $50,000. DOWNTOWN BREMERTON ASSOCIATION shall submit an invoice supported by board approved budget statements and a description of the line item expense detailing the services for which DOWNTOWN BREMERTON ASSOCIATION has contracted and the amount paid for DOWNTOWN BREMERTON ASSOCIATION by members for Mainstreet America activities during the program year of 2022. Upon receipt of a conforming billing statement, the City shall promptly process payment. If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance. DOWNTOWN BREMERTON ASSOCIATION shall not be reimbursed for work beyond the scope of this Agreement, unless the Scope is modified pursuant to section VI herein. If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance. Such withholding does not relieve DOWNTOWN BREMERTON ASSOCIATION of its obligations under this Agreement. IV.Relationship of Parties: DOWNTOWN BREMERTON ASSOCIATION 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. DOWNTOWN BREMERTON ASSOCIATION and its personnel are independent entities and not employees of the City. DOWNTOWN BREMERTON ASSOCIATION and its personnel have no authority to bind the City or to control the City’s employees and other consultants. 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-consultants of DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 Page 2 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 DOWNTOWN BREMERTON ASSOCIATION. DOWNTOWN BREMERTON ASSOCIATION will be solely and entirely responsible for its acts and for the acts of DOWNTOWN BREMERTON ASSOCIATION's agents, employees, representatives and sub- contractors during the performance of this Agreement. The City may, during the term of this Agreement, engage other contractors independent of the DOWNTOWN BREMERTON ASSOCIATION to perform the same or similar work. As an independent entity, DOWNTOWN BREMERTON ASSOCIATION 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 DOWNTOWN BREMERTON ASSOCIATION or its personnel. As an independent entity, DOWNTOWN BREMERTON ASSOCIATION 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 DOWNTOWN BREMERTON ASSOCIATION. . V.Indemnification: A.Consultant 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, unless Consultant is conducting work pursuant to Subsection B below. 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. B.Architects, Engineers and Any Other Professional Listed In and Performing Services Defined in RCW 4.24.115. Should a court of competent jurisdiction determine that Consultant’s services provided pursuant to 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 damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 Page 3 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 The provisions of this section shall survive the expiration or termination of this Agreement. VI.Insurance: The Consultant 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 Consultant, its agents, representatives, employees, sub-consultants or sub-contractors. Before beginning work on the project described in this Agreement, the Consultant shall provide a Certificate of Insurance evidencing: 1.Commercial General Liability 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 shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and 2.Director’s and Officer’s Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate; and . Any payment of deductible or self-insured retention shall be the sole responsibility of the Consultant. If required policies cannot be provided on a “occurrence” basis, “claims-made” basis is acceptable, with “evidence of availability” and “agreement to purchase” an extended-reporting period or "tail" coverage for a three-year period after completion of the service, upon approval from the City. 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 Consultant 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. DBA's Commercial General Liability insurance shall contain a clause stating that 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. if required policies cannot be provided on a “occurrence” basis, “claims-made” basis is acceptable, with “evidence of availability” and “agreement to purchase” an extended-reporting period or "tail" coverage for a three-year period after completion of the service, upon approval from the City. DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 Page 4 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 The Consultant's insurance shall be primary and non-contributory insurance as respects the City and shall contain a waiver of subrogation against the City for claims arising out of any operations, liabilities and obligations to which coverage applies. It shall be an affirmative obligation upon Consultant 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 100, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy set out herein, and failure 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. In the event that the Consultant employs other consultants or contractors (sub-consultants or sub-contractors) as part of the work covered by this Agreement, it shall be the Consultant’s responsibility to require and confirm that each sub-consultant or sub-contractor meets the minimum insurance requirements specified above. The Consultant shall, upon demand of the City, deliver to the City copies of such policy or policies of insurance and the receipts for payment of premiums thereon. VII.General Conditions: A.Reports and Information: When requested by the City, Consultant 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. Consultant shall maintain accounting records in accordance with Generally Accepted Accounting Principles (“GAAP”) to substantiate all billed 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 Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available or is already in Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. All data, documents and files created by Consultant under this Agreement may be stored at Consultant's office in Bremerton, Washington. Consultant shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in 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 Consultant pursuant to this Agreement, are instruments of service DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 Page 5 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 with respect to the project and are the property of the City. Any reuse by the City for other than the specific purpose intended will be at City’s sole risk. C.Use of Photographs and Images. Consultant shall not use or distribute photographs or images depicting City officials, personnel, property, or equipment whether prepared by Consultant or provided by City without prior written consent of the City. The City will not unreasonably withhold its consent. D.Work Performed at Consultant's Risk: Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub-consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant 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. E.Place of Work: The Consultant shall perform the work authorized under this Agreement at its offices in Bremerton, Washington. 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 agreed upon by the parties. F.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. G.Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. H.Modification: This Agreement may only be modified by written instrument signed by both Parties. I.Written Notices: All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1st 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. Notices to be sent to: Notices to be sent to: CITY: CONSULTANT: Attn: Contracts Administrator Attn: John Morrissey City of Bremerton Downtown Bremerton Association 345 6th Street, Suite 100 PO Box 245 Bremerton, WA 98337-1891 Bremerton, WA 98337 J.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. DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 Page 6 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 K.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. L.Compliance with Laws: Consultant shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. M.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. N.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. O.Assignment: Any assignment of this agreement by the Contractor without the written consent of the City shall be void. VIII.Equal Employment Opportunity Statement: In the hiring of employees for the performance of work under this Agreement, the Consultant, its subcontractors, or any person acting on behalf of Consultant shall not discriminate in any employment practice on the basis of age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military status, or the presence of any physical, mental or sensory disability. IX.ADA Statement: The City of Bremerton does not discriminate on the basis of disability in programs and activities, which it operates pursuant to the requirements of the Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to both employment and admission to participation in the programs, services and activities of the City of Bremerton. Reasonable accommodation for employees or applicants for employment will be provided. X.Termination: This Agreement shall remain in force until 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 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 thirty (30) days of the terminating Party’s sending notice to the non-performing Party. Any Notice by Consultant 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. DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 Page 7 of 8 A.Excusable Delays: The right of Consultant to proceed shall not be terminated nor shall Consultant 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 consultants, 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 Consultant, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity. PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) calendar days in writing 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 period 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 performed by the Consultant to the effective date of termination, as described on a final invoice submitted to the City. After termination, the City may take possession of all records and data within the Consultant's possession pertaining to this project which may be used by the City without restriction. Any such use not related to the project which Consultant was contracted to perform shall be without liability or legal exposure to the Consultant. XI.Suspension & Debarment. For contracts involving Federal funding, Consultant hereby certifies, by signing this agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Consultant shall provide immediate written notice to the City if at any time it learns that it is or has become ineligible for certification. Should Consultant enter into a covered transaction with another firm, Consultant agrees by signing this agreement that it will verify that the firm with whom it intends to do business is not debarred, suspended, ineligible, excluded or disqualified. IN WITNESS WHEREOF, the parties below have executed this Agreement. CITY: CONSULTANT: CITY OF BREMERTON DOWNTOWN BREMERTON ASSOCIATION By: By: Print Name: Print Name: Its: Its: Date: Date: ATTEST: APPROVED AS TO FORM: By: Kylie J. Finnell, Bremerton City Attorney Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 By: Angela Hoover, City Clerk DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908 5/25/2022 John Morrissey PresidentMayor Greg Wheeler 5/25/2022 Page 8 of 8 Bremerton/[Downtown Bremerton Association] [Mainstreet Program] Rev. 09/2021 EXHIBIT A: DESCRIPTION OF SERVICES The Downtown Bremerton Association will use the Mainstreet Program funding to hire an Executive Director and to implement on-going City of Bremerton marketing programs in support of Bremerton’s Small Businesses. DocuSign Envelope ID: 4BE60B0E-569E-464D-8183-361026B76908