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024-19 - Kitsap Economic Development Alliance - ContractCITY OF PORT ORC PROFESSIONAL SERVICES AGREEMENT ECONOMIC DEVELOPMENT SERVICES Contract No. 2019 THIS Agreement is made effective as of the 1" day of January 2019, by and between the City of Port Orchard, amunicipal corporation, organized under the laws of the State of Washington, whose address is: CITY OF PORT ORCHARD, WASHINGTON (hereinafter the "CITY") 216 Prospect Street Port Orchard, Washington 98366 Contact: Mayor Robert Putaansuu Phone: (360) 876- 4407 Fax: (360) 895-9029 and Kitsap Economic Development Alliance, a non-profit corporation, organized under the laws of the State of Washington, doing business at: Kitsap Economic Development Alliance (hereinaft er the "CONSULTAI\T") 4312 Kitsap Wuy, Suite 103 Bremerton, WA 98312 Contact: John Powers, Executive Director Phone: (360) 377-9499 for professional services in connection with the following Project: Economic Development TERMS AND CONDITIONS 1. Services by Consultant A. Consultant shall perform the services described in the Scope of Work attached to this Agreement as Exhibit "A." The services performed by the Consultant shall not exceed the Scope of Work without prior written authorization from the City. B. The City may from time to time require changes or modifications in the Scope of Work. Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by the parties and incorporated in written amendments to the Agreement. 2. Schedule of Work. A. Consultant shall perform the services described in the scope of work in accordance with the Schedule attached to this contract as Exhibit "r{." If delays beyond Consultant's reasonable control occur, the parties will negotiate in good faith to determine whether an extension is appropriate. B. Proceed. Consultant is authorized to proceed with services upon receipt of a written Notice to City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract No. I ofl0 tr.,|-t1 3 Terms. This Agreement shall commence on January 1 ,2019, ("Commencement Date") and shall terminate on December 31 ,2020, unless extended or terminated in writing as provided herein. 4. Compensation. LUMP SUM. Compensation for these services shall be a Lump Sum of $ TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $without written authorization and will be based on billing rates and reimbursable expenses attached hereto as Exhibit A. TIME AND MATERTALS. Compensation for these services shall be on a time and material basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit (a )) OTHER- Quarterly invoices in an amount up to $2,500, for a total amount not to exceed $20,000 (2019- $10,000 and2020- $10,000). 5. Payment. A. Consultant shall invoice the City in a format acceptable to the City for the work being performed according to the scope of services. The invoice shall be submitted quarterly concurrent with the quarterly report indicating the services that were provided. B. A11 invoices shall be paid by City warrant within sixty (60) days of receipt of a proper invoice. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the parties shall immediately make every effort to settle the disputed portion. C. Consultant shall keep cost records and accounts pertaining to this Agreement available for inspection by City representatives for three (3) years after final payment unless a longer period is required by a third-party agreement. Copies shall be made available on request. D. On the effective date of this Agreement (or shortly thereafter), the Consultant shall comply with all federal and state laws applicable to independent contractors, including, but not limited to, the maintenance of a separate set of books and records that reflect all items of income and expenses of the Consultant's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to show that the services performed by the Consultant under this Agreement shall not give rise to an employer- employee relationship between the parties, which is subject to Title 51 RCW, lndustrial lnsurance. E. If the services rendered do not meet the requirements of the Agreement, Consultant will correct or modify the work to comply with the Agreement. City may withhold payment for such work until the work meets the requirements of the Agreement. 6. Discrimination and Compliance with Laws City of Port Orchard Kitsap Economic Development Alliance /^rr r I lA Professional Service Agreement Contract No. U )"1-l I 2ofl0 A. Consultant agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, color, national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. Even though the Consultant is an independent contractor with the authority to control and direct the perforrnance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right inspection to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state and municipal laws, rules and regulations that are now effective or become applicable within the terms of this Agreement to the Consultant's business, equipment and persorurel engaged in operations covered by this Agreement or accruing out of the performance of such operations. C. Consultant shall obtain a City of Port Orchard business license prior to receipt of written Notice to Proceed. D. Violation of this Paragraph 6 shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. 7. Relationship of Parties. The parties intend that an independent contractor-client relationship will be created by this Agreement. As the Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub-consultant of the Consultant shall be or shall be deemed to be the employee, agent, representative or sub-consultant of the City. In the performance of the work, the Consultant is an independent contractor with the ability to control and direct the perforrnance and details of the work, the City being interested only in the results obtained under this Agreement. 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 the Consultant. The Consultant will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives and sub-consultants during the perfornance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the Consultant performs hereunder. 8. Suspension and Termination of Agreement A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Consultant's insolvency or bankruptcy, or the Consultant's assignment for the benefit of creditors. B. Consultant. Termination with cause The Agreement may be terminated upon the default of the C. Riehts Upon Termination City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract No.0>t'l '11 3ofl0 I . With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of Consultant pursuant to this Agreement shall be submitted to the City, and the Consultant shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. Consultant shall not be entitled to any reallocation of cost, profit or overhead. Consultant shall not in any event be entitled to anticipated profit on work not performed because of such termination. Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. 2. Defoult. If the Agreement is terminated for default, the Consultant shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Consultant. The Consultant shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the City by reason of such default. D. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable expenses, and shall be subject to verification. The Consultant shall resume performance of services under this Agreement without delay when the suspension period ends. E. Notice of Termination or Suspension. If delivered to the Consultant in person, termination shall be effective immediately upon the Consultant's receipt of the City's written notice or such date as stated in the City's notice of termination, whichever is later. Notice of suspension shall be given to the Consultant in writing upon one week's advance notice to Consultant. Such notice shall indicate the anticipated period of suspension. Notice may also be delivered to the Consultant at the address set forth in Section l5 herein. 9. Standard of Care. Consultant represents and warrants that it has the requisite training, skill and experience necessary to provide the services under this Agreement and is appropriately accredited and licensed by all applicable agencies and govemmental entities. Services provided by Consultant under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. 10. Ownership of Work Product. A. All data materials, reports, memoranda, and other documents developed under this Agreement whether finished or not shall become the property of City, shall be forwarded to City at its request and may be used by City as it sees fit. Upon termination of this Agreement pursuant to paragraphT above, all finished or unfinished documents, reports, or other material or work of Consultant pursuant to this Agreement shall be submitted to City. B. A11 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 City of Port Orchard Kitsap Economic Development Alliance A.1 r t t A Professional Service Agreement Contract No.(./ L"l - I I 4ofl0 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, the Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. 11. Work Pertormed at the Consultant's Risk. The 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 the Consultant's own risk, and the Consultant shall be responsible for any loss or damage to materials, tools, or other articles used or held by the Consultant for use in connection with the work. 12. Indemnification. The Consultant shall defend, indemnifu 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 attorneys' fees, arising out of or in connection with the perfornance of this Agreement, except for injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of the Consultant's work when completed shall not be grounds to avoid any of these covenants of indemnifi cation. 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 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 WATVER OF IMMUNITY LINDER INDUSTRIAL INSURANCE, TITLE 5I RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTTATED THIS WAIVER. THE CONSULTANT'S WAIVER OF IMMUNITY UNDER THE PROVISIONS OF THIS SECTION DOES NOT INCLUDE, OR EXTEND TO ANY CLAIMS BY THE CONSULTANT'S EMPLOYEES DIRECTLY AGAINST THE CONSULTANT. 13. Insurance. The Consultant shall procure and maintain forthe 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, or employees. A. Minimum Scope of lnsurance Consultant shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on lnsurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 or a substitute form providing equivalent liability coverage and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named as an insured under the Consultant's City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contrac ,*o 024'l 1 5ofl0 Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers' Compensation coverage as required by the Industrial lnsurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Consultant's profession. B. Minimum Amounts of Insurance Consultant shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liabilitv insurance shall be written with limits no less than $1,000,000 each occurence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. 4. Employer's Liability each accident $1,000,000, Employer's Liability Disease each employee $1,000,000, and Employer's Liability Disease-Policy Limit $1,000,000. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: l. The Consultant's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant's insurance and shall not contribute with it. 2. The Consultant's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City will not waive its right to subrogation against the Consultant. The Consultant's insurance shall be endorsed acknowledging that the City will not waive their right to subrogation. The Consultant's insurance shall be endorsed to waive the right of subrogation against the City, or any self-insurance, or insurance pool coverage maintained by the City. 4. If any coverage is written on a "claims made" basis, then a minimum of a three (3) year extended reporting period shall be included with the claims made policy, and proof of this extended reporting period provide to the City. D. Acceptability of lnsurers City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract No 0'q11 6ofl0 Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII E. Verification of Coverage Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. 14. Assigning or Subcontracting. Consultant shall not assign, transfer, subcontract or encumber any rights, duties, or interests accruing from this Agreement without the express prior written consent of the City, which consent may be withheld in the sole discretion of the City. 15. Notice. Any notices required to be given by the City to Consultant or by Consultant to the City shall be in writing and delivered to the parties at the following addresses: Robert Putaansuu Mayor 216 Prospect Street Port Orchard, WA 98366 John Powers Executive Director 4312 Kitsap Wuy, Suite 103 Bremerton, WA 98312 Phone: (360) 876-4407 Fax: (360) 895-9029 Phone: (360) 371-9499 16. Resolution of Disputes and Governing Law. A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. B. If any dispute arises between the City and the Consultant under any of the provisions of this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the Consultant does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. C. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. [n any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorney's fees from the other party. 17. General Provisions. A. Non-waiver of Breach. The failure of either party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract No.o'/-r1 7ofl0 instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. B. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Consultant. C. Severability. The provisions of this Agreement are declared to be severable. If any provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. D. Entire Agreement. The written provisions of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement and the Exhibits attached hereto, which may or may not have been dated prior to the execution of this Agreement. All of the above documents are hereby made a part of this Agreement and form the Agreement document as fully as if the same were set forth herein. Should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, then this Agreement shall prevail. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth above. CITY OF PORT ORCHARD, WASHINGTON By: Robert Pu KITSAP ECONO DEVELOPMENT ALLIANCE 2) Ittt: o .q , Date: l/>E .Lo s e a ATTES By: APPROVED AS TO FORM: By: Cates, City Attorney MMC, City Clerk ) ( City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract N" 0H^t1 8ofl0 EXHIBIT "A" SCOPE OF SERV CES Purposes of the agreement: 1 . The principal purpose of this agreement is to promote diversification of the Kitsap community's primary job base and to integrate its economy into the nationa! and world economies. (Primary jobs produce goods or services sold to purchasers outside the community and thereby bring in new disposable income.) 2. Subsidiary purposes relate to primary jobs provided by existing and new employers, including primary job opportunities for workers displaced within the community, namely:a. Continue to retain existing employment, expand existing employers' operations, and promote selected new employment opportunities, which, in most cases, means commercial, high technology or light industrial investments leading to new primary jobs. b. Continue efforts to create and retain primary jobs for workers displaced and promote employment for low and moderate-income families. 3. Provide leadership and coordination in relation to KEDA's current work plan to:a. Educate public officials, the private sector and the general public about economic development issues related to primary jobs. b. Develop marketing to, and case-by-case activities with, entrepreneurs who ;il i",?';"::.:"ii ff fJ?,i:f llH :::ffi:?: llH li:il:T H,3lt ;,; marketing efforts to attract and recruit new business prospects that will diversify opportunities for employment. It also includes providing confidential assistance to companies with retention issues or expansion plans, to local start-up companies seeking business 'assistance, and to businesses recruited to the community. a. Business assistance includes but not limited to: i. Site selection ii. Market research and analysis iii. Education and assistance on selling to the government iv. Workforce development, hiring and training v. Advanced manufacturing and industry certifications vi. B2B and M2B referrals vii. Capital formation viii. Taxes, regulations and permitting ix. Exportingc. Research and communicate government and business sales opportunities to local employers via the KEDA blog, social media and targeted City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract No 9of10 oI1l 4. Continue diversification and integration efforts in the preceding work elements through support of volunteer committees of the Board of Directors of the Kitsap Economic Development Alliance. 5. Provide a quarterly written report of progress and brief the Mayor and City Counci! concerning reported progress. ldentify benefits accruing to the City of Port Orchard, its businesses and its residents relative to the above work elements, to the extent feasible. Provide information through electronic newsletters and printed reports regularly regarding economic development issues. 6. This economic development support and work will be provided by professional staff at the Kitsap Economic Development Alliance: a. John Powers, Executive Director b. Kathy Cocus, Business Development Director c. Theresa Mangrum, Executive Administration, Events & Marketing d. Mary Jo Juarez, PTAC (Procurement Technical Assistance Center) counselor e. Mona Carlson, PTAC counselorf. Volunteers who provide workshop presentations, research support and other duties as deemed necessary to full scope. City of Port Orchard Kitsap Economic Development Alliance Professional Service Agreement Contract No 1 10 of l0 newsletters d. Maintain an inventory of land available for primary employers through contacts with commercial brokers and property owners.e. Provide support for funding requests that will develop the physical infrastructure (e.g. roads, telecommunications) and social infrastructure (e.g. training and health systems) needed by businesses and their employees. This includes continuing to work with both public and private partners in the continued designation, development, implementation, and delivery of infrastructure to industrial lands.