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041-18 - Kurt and Amy Craig - ContractBanner Agreement Contract No. 041-18 Between City of Port Orchard and Kurt and Amy Craig, YOLO Enterprises, LLC THIS AGREEMENT ("Agreement") is entered into by and between the City of Port Orchard, a Washington municipal corporation (hereafter the "City"), and Kurt and Amy Craig, YOLO Enterprises, LLC, a corporation organized under the laws of the State of Washington (hereafter the "Owner"), effective as of the date set forth below, granting the City permission to attach certain advertising banners to the Owner's building, and setting forth the parties' agreement regarding their related rights and responsibilities. RECITALS WHEREAS, the City has for many years suspended banners across Bay Street for the purpose of advertising events that promote tourism in the City; and WHEREAS, these banners have heretofore been suspended from the City -owned marquee, which the City has determined is no longer sufficiently stable to perform this function; and WHEREAS, the City has requested, and the Owner has agreed to allow the City to install the necessary hardware/equipment on the Owner's building at 714 Bay Street, Port Orchard, WA 98366 (hereafter the `Building") for the purpose of suspending the banners across Bay Street; and WHEREAS, the City and the Owner wish to memorialize their agreement with regard to the installation and maintenance of the hardware/equipment to suspend the banners, and each party's rights and responsibilities relating thereto; NOW, THEREFORE, for and in consideration of the mutual covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually agree as follows: 1. Recitals. The recitals above are incorporated into this Agreement. 2. Installation, Maintenance & Repair. The City hereby agrees to install, at its sole cost and expense, hardware/equipment of a kind and at a location on the Building that are agreeable to the Owner, to allow the suspension of the banners across Bay Street. The City will maintain, at its sole cost and expense, the banners themselves as well as the area of the Building on which the hardware/equipment is installed to minimize damage to the Building. If the Owner discovers damage to the Building resulting from any action or omission covered by this Agreement, the City agrees to repair the damage within thirty (30) calendar days of notification. If a repair cannot be made within a period of thirty (30) calendar days from the date of notification, the City may make a written request of the Owner for an extension of time. The Owner agrees not to deny such a request without good cause. 3. Right of Entry. Subject to the terms of the Agreement, the Owner hereby permits the City, its employees, its authorized agents, contractors and subcontractors a right of entry to the Building for the purpose of installation, maintenance, repair, and removal of the hardware/equipment for the suspension of the banners. The City shall access the Building only after notifying the Owner of the need to perform work and coordinating with the Owner on the date and time of such work. 4. Term and Termination. This Agreement shall remain in effect until either parry terminates this Agreement for any reason upon ten (10) days prior written notice to the other party. Upon termination of this Agreement, the City shall promptly remove any banner then suspended from the Building and all related hardware/equipment, and restore the portion of the Owner's property affected by the hanging banner hardware/equipment to substantially the condition it was in before such hardware/equipment was installed. 5. Indemnification. The City expressly agrees to indemnify and hold the Owner harmless from any and all claims, liabilities, losses, or damages to any and all persons or property, costs or judgments, including costs and reasonable attorneys' fees for defense of the same that the Owner may suffer, which result from, arise out of, or are in any way connected with the negligent acts or omissions of the City or its employees, agents, contractors and subcontractors when acting within the scope of their employment as such in the performance of this Agreement. This expressly includes any and all claims by employees, contractors and subcontractors of the City for which the City would have immunity under the Workers Compensation Act for purposes of this indemnification only. The City specifically assumes potential liability for actions brought by the City's own employees against the Owner and, solely for the purpose of this indemnification and defense, the City specifically waives any immunity under the state industrial insurance law, Title 51 RCW. The foregoing waiver was mutually negotiated by the parties. The City shall not be required to indemnify, hold harmless or defend the Owner if the claim, suit or action for injuries, death or damages to persons or property is caused by the Owner's negligence; provided, that if such claims, suits or actions result from the concurrent negligence of. (a) the City, its employees, agents, contractors or subcontractors; and (b) the Owner or its agents or representatives, or involves those actions covered by RCW 4.24.115, the indemnity provisions herein shall be valid and enforceable only to the extent of the Contract No. 041-18 1 Craig, Kurt & Amy Page 2 of 4 negligence of each party, its employees, authorized agents/representatives and/or contractors/subcontractors. 6. Insurance. Each party shall maintain its own insurance and/or self-insurance for its liabilities from damage to property and/or injuries to persons arising out of its activities associated with this Agreement as it deems reasonably appropriate and prudent. 7. Default. If the City fails to perform any act or obligation required to be performed hereunder, the Owner shall deliver written notice of such failure to the City. The City will have fifteen (15) business days after receipt of such notice in which to correct its failure to perform the act or obligation at issue, after which time it shall be in default ("Default") under this Agreement; provided, however, that if the non-performance is of a type that could not reasonably be cured within said fifteen (15) business day period, then the City shall not be in Default if it commences cure within said fifteen (15) business day period and thereafter diligently pursue cure to completion. If the City is determined to be in Default, this Agreement will automatically terminate, and the City will promptly undertake the work to remove the hardware/equipment installed on the Building and restore the Building as set forth in Section 4, above. 8. Notices. All notices required to be given by either party under this Agreement shall be in writing and shall be deemed delivered if personally delivered or dispatched by certified or registered mail, return receipt requested, addressed to the parties as follows: City of Port Orchard Robert Putaansuu, Mayor 216 Prospect Street Port Orchard, WA 98366 Owner Kurt and Amy Craig 714 Bay Street Port Orchard, WA 98366 Notice shall be deemed given on the date it is personally delivered or two days after it is deposited in the mail. Any party may change the address for notification by prior written notice in accordance with the foregoing. 9. Waiver. The failure of either party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver thereof or deprive the other party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. 10. General Provisions. This Agreement represents the complete understanding between the parties hereto as to the subject matter hereof and supersedes all prior discussions between the parties relative to the same. No modification of this Agreement Contract No. 041-18 1 Craig, Kurt & Amy Page 3 of 4 shall be binding unless set forth in writing and signed by all parties hereto. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Washington. In the event any suit, action or proceeding shall be brought in connection with any of the terms or conditions of this Agreement, the parties stipulate that jurisdiction and venue for such suit, action or proceeding shall be in Kitsap County. If any provision of this Agreement is declared by a court of competent jurisdiction to be void or unenforceable, the same shall only affect such particular portion of this Agreement and the balance of this Agreement shall remain in full force and effect. This Agreement may be executed in counterparts and delivered via electronic mail. DATED this J day of Z , 2018. CITY OF PORT ORCHARD Robert utaan uIu, Mayor ATTEST/AUTHENTICATED: Br y inearson, MMC, City Clerk APPROVED AS TO FORM: S n Cates, City Attorney 'A -'010 o o. SEAL A OWNER -"i Kurt Craig, Owlet perator Contract No. 041-18 1 Craig, Kurt & Amy Page 4 of 4