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HomeMy WebLinkAbout050718_ca18JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS CONSENT AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrat%p�/��� FROM: Mark McCauley, Central Seryic s Director P DATE: May 7, 2018 RE: Request for Board of County Commissioners approval of a Special Facilities Use Agreement with Funtastic Shows, Inc. STATEMENT OF ISSUE: For many years Funtastic Shows, Inc. has been providing a carnival in support of the annual Rhododendron Festival. Over the past fifteen years or so the carnival has been located on Memorial Field, a facility designed for hosting athletic events such as baseball, football, and soccer games. The surface of the field was damaged over the years due to soil compaction by the heavy trucks and attractions. Last year the field suffered extensive damage due to deep rutting and grass and sprinkler head destruction. Funtastic, Inc. helped pay for a small portion of the cost to repair the damage but beyond their contribution the county paid a significant sum for the balance of the repair cost. The county has agreed to host the carnival for the last time in 2018. To facilitate this a Special Facilities Use Agreement is required. ANALYSIS: The attached Special Facilities Use Agreement, among other things: 1.) requires Funtastic Shows, Inc. to coordinated its activities with the Rhododendron Festival Association, and; 2.) protects the county from potential liability, and; 3.) secures the agreement of Funtastic Shows, Inc. to contribute up to $10,000 to repair any damage they cause to the facilities, and; 4.) provides a backup facility (HJ Carroll Park) should Memorial Field not be available, and; 5.) allows any of the parties to the festival to cancel the carnival if weather and field and park conditions warrant cancellation. FISCAL IMPACT: In and of itself this agreement has no fiscal impact. Should Memorial Field or HJ Carroll Park sustain substantial damage as a result of this agreement there may be a yet to be determined fiscal impact. This agreement helps to minimize that potential fiscal impact. RECOMMENDATION: Approve the Attached Special Facilities Use Agreement with Funtastic Shows, Inc. REVIEWED BY: Philip Morley, C#nty Administrator Date JEFFERSON COUNTY SPECIAL FACILITIES USE AGREEMENT THIS SPECIAL FACILITIES USE AGREEMENT (this "Agreement") is entered into on the _ day of , 2018 (the "Effective Date") by and between Jefferson County, a political subdivision of the State of Washington ("the County"), and Funtastic Shows, Inc. ("Licensee"). ARTICLE I LICENSE TO USE FACILITIES Section 1.01 License. The County owns and operates and lawfully controls access to and use of the property/facilities described in Section 1.02 ("Facilities"), and Licensee desires to use the Facilities on the date(s) and time(s) listed for the purpose(s) listed below. The County hereby grants to Licensee a limited license to use those portions of the Facilities necessary for the purposes described below available to the Licensee under the terms set forth in this Agreement, and in consideration for permission to access and use the Facilities, the Licensee hereby agrees fully comply with all the terms and conditions of this Agreement. Section 1.02 Definitions. Date(s) and Time(s) are: May 14, 2018 at 8:00 a.m. until May 21, 2018 at 11:00 p.m., plus any time necessary to set up, take down, and transport the rides to and from the Facilities. The Facilities are: (1) Memorial Field, Port Townsend, Washington, including the constructed athletic field with sprinkler and electrical systems, surrounding land, buildings, fences, and other appurtenances; and, (2) HJ Carroll Park, Chimacum, Washington, but only if weather conditions may render Memorial Field susceptible to excessive damage and unsuitable for hosting the Carnival. Purpose(s) of Use is: Carnival in support of the 2018 Rhododendron Festival, in Port Townsend, Washington. ARTICLE II COORDINATION WITH RHODODENDRON FESTIVAL ASSOCIATION Section 2.01 Coordination with Rhododendron Festival Association. Licensee will coordinate its activities at the Facility with the Rhododendron Festival Association ("the Association"), since the Association is the entity responsible for conducting the Rhododendron Festival. ARTICLE III TERMS AND CONDITIONS OF FACILITIES USE Section 3.01 Sales and Solicitation. Licensee will not engage in sales or solicitation for sales of goods or services except as described in Section 1.02, "Purposes of Use". Section 3.02 Ingress and Egress. All parts of the sidewalks, doors, passages, vestibules, hallways, stairways, emergency exits, and any access to public utilities in the Facilities must be kept unobstructed by the Licensee and its participants and attendees. Section 3.03 No Modifications to Facility without Consent of the County. Licensee shall not make any temporary or permanent modifications to the Facilities without the prior written consent of the County. Section 3.04 Compliance. Licensee agrees to occupy and use the Facilities in accordance with all applicable local, state, and federal laws, regulations, and ordinances, including but not limited to fire codes. Section 3.05 Safety of Participants and Attendees. The Licensee is responsible for providing all necessary and appropriate event supervision, and for implementing appropriate safety measures to protect participants and attendees at Licensee's event/activity. In the event Licensee fails to provide the requisite supervision and safety measures required by this Section 3.05, the County reserves the right to immediately terminate the license to use the Facilities. Section 3.06 Abandoned Property. Any personal property left in the Facilities shall, after a period of ten (10) business days after the date of the use, be deemed abandoned and shall become property of the County to be disposed of or utilized at the County's sole discretion. Section 3.07 Promotion. Licensee may not use the County name or marks, or imply County endorsement or support, without the express permission from an authorized County official. County expressly authorizes the use of its name in connection with advertising the location of the event. Section 3.08 Cancellation. Licensee acknowledges that weather conditions may render both Memorial Field and HJ Carroll Park susceptible to excessive damage and unsuitable for hosting the Carnival, and that the County, Licensee or the Rhododendron Festival Association may cancel the Carnival, without penalty. ARTICLE IV INSURANCE, INDEMNIFICATION AND DAMAGES TO THE FACILITY Section 4.01 Indemnification. Licensee shall indemnify, protect, defend, and hold harmless the County and its officers, agents, employees, representatives, and assigns against any and all claims, demands, suits, and causes of action and any and all liabilities, costs, damages, expenses, and judgments incurred in connection therewith (including but not limited to reasonable attorney's fees and court costs), whether arising in equity, at common law or by statute, or under the law of contracts, torts or property, relating to or arising out of Licensee's occupancy and use of the Facilities or any material breach of this Agreement. 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 for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. Section 4.02 General Liability Insurance. Licensee, at its sole expense, shall obtain and maintain in force and effect for the period of use under this Agreement comprehensive general liability insurance, in amounts of not less than One Million Dollars ($1,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate, in connection with the occupancy and use of the Facilities consistent with the terms and conditions set forth in this Agreement. Section 4.03 Workers' Compensation. Licensee shall maintain workers' compensation insurance at its own expense, as required by Title 51 RCW, for the term of this Agreement and shall provide evidence of coverage to Jefferson County Risk Management, upon request. Worker's compensation insurance covering all employees with limits meeting all applicable state and federal laws. This coverage shall include Employer's Liability with limits meeting all applicable state and federal laws. This coverage shall extend to any subcontractor that does not have their own worker's compensation and employer's liability insurance. Licensee expressly waives by mutual negotiation all immunity and limitations on liability, with respect to the County, under any industrial insurance act, disability benefit act, or other employee benefit act of any jurisdiction which would otherwise be applicable in the case of such claim. If the County incurs any costs to enforce the provisions of this subsection, all cost and fees shall be recoverable from Licensee. Section 4.04 Business Auto Coverage. Licensee will provide on ISO Business Auto Coverage form CA 00 01 including owned, non -owned and hired autos, or the exact equivalent. Limits shall be no less than $1,000,000 per accident, combined single limit. If Contractor owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. If Contractor or Contractor's employees will use personal autos in any way on this project, Contractor shall obtain evidence of personal auto liability coverage for each such person. Section 4.05 Requirements Applicable to Insurance Required by this Agreement. Licensee will name the County as an additional named insured on all policies and provides certificates proving same. In addition the Licensee will provide copies of all policies to the County including all attachments, forms and schedules. All deductibles in Licensee's insurance policies shall be assumed by and be at the sole risk of Licensee. Failure of Licensee to take out or maintain any required insurance shall not relieve Licensee from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations concerning indemnification of the County. Licensee's insurers shall have no right of recovery or subrogation against the County (including its employees and other agents and agencies), it being the intention of the parties that the insurance policies so affected shall protect all the parties and shall be primary coverage for all losses covered by the above described insurance. Insurance companies issuing Licensee's insurance policy or policies shall have no recourse against the County (including its employees and other agents and agencies) for payment of any premiums or for assessments under any form of insurance policy. Any coverage for third party liability claims provided to the County by a "Risk Pool" created pursuant to Ch. 48.62 RCW shall be non-contributory with respect to any insurance policy Licensee shall provide to comply with this Agreement. The County may, upon Licensee's failure to comply with all provisions of this Agreement relating to insurance, cancel this Agreement. Licensee's liability insurance provisions shall be primary and noncontributory with respect to any insurance or self-insurance programs covering the County, its elected and appointed officers, officials, employees, and agents. Any failure to comply with reporting provisions of the insurance policies shall not affect coverage provided to the County, its officers, officials, employees, or agents. Licensee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Licensee shall include all subcontractors as insured under its insurance policies or shall furnish separate certificates and endorsements for each subcontractor. All insurance coverage for subcontractors shall be subject to all the requirements stated in this Agreement. The insurance limits mandated for any insurance coverage required by this Agreement are not intended to be an indication of exposure nor are they limitations on indemnification. Licensee shall maintain all required insurance policies in force from the time services commence until services are completed. Certificates, insurance policies, and endorsements expiring before completion of services shall be promptly replaced. Written notice of cancellation or change in Licensee's insurance required by this Agreement shall reference the project name and agreement number and shall be mailed to the County at the following address: Jefferson County Risk Management, P.O. Box 1220, Port Townsend, WA 98368. Section 4.06 Damage to Facilities. Licensee shall not damage the Facilities. Upon presentation of documentation by the County, Licensee shall pay for all damages to buildings, grounds, fields, and equipment caused by Licensee or any of its participants and attendees, not otherwise covered by the insurance provided by Licensee, of up to $10,000. ARTICLE V GENERAL TERMS Section 5.01 Assignment. Neither party may assign any of its rights or delegate any of its obligations hereunder without first obtaining the prior written consent of the other party hereto. This Agreement inures to the benefit of, and is binding upon, the successors and permitted assigns of the parties hereto Section 5.02 Binding Effect. Subject to the provisions of this Agreement relating to transferability, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors, heirs, legal representatives, and assigns. Section 5.03 Entire Agreement/Amendments. This Agreement contains the entire understanding between the parties hereto and supersedes any and all prior agreements, understandings, and arrangements between the parties relating to the subject matter hereof. No amendment, change, modification or alteration of the terms and conditions hereof shall be binding unless evidenced by a writing signed by the parties hereto. Section 5.04 Execution in Counterparts. This Agreement may be executed simultaneously in one or more counterparts, with each counterpart deemed an original, and all counterparts together constituting one and the same instrument. Section 5.05 Governing Law. This Agreement and the rights and obligations of the parties hereunder shall in all respects be governed by the substantive law of the State of Washington, including all matters of construction, validity and performance. This provision shall survive the term of this Agreement. Section 5.06 Non-discrimination. Neither parry shall discriminate against any person on the basis of sex, race, creed, national origin, color, religious belief, age, disability, or status as a disabled veteran or veteran of the Vietnam era in the performance of this Agreement. Section 5.07 Notices. All notices hereunder shall be in writing and will be delivered to the other parry by any of the following methods: (1) hand delivery; (2) certified U.S. mail, return receipt requested; (3) overnight courier; or (4) electronic mail. Notices shall be addressed to the other party as follows: If to Licensee: Rob Rhew, Vice -President Funtastic Shows, Inc. 3407 SE 108th Ave Portland, OR 97266 funrobkaol.com contactkfuntasticshows.com Cell: 971-219-0118 Main: 503-761-0989 If to the County: Mark McCauley Director, Central Services PO Box 1220 1820 Jefferson Street Port Townsend, WA 98368 mmccauleyAco.j efferson.wa.us Cell: 360-774-1290 Main: 360-385-9130 All notices will be deemed received and effective as follows: (1) if by hand -delivery, on the date of delivery; (2) if by overnight courier, on the date receipt is confirmed by such courier; (3) if by certified U.S. mail, on the date of receipt appearing on a return receipt card; or (4) if by electronic mail, 24 hours after the message was sent if no "system error" or other notice of non-delivery is generated. Section 5.09 Licensee an Independent Contractor. It is expressly acknowledged by the parties hereto that they are independent contractors and nothing in this Agreement is intended or shall be construed to create an employer/employee relationship, partnership or a joint venture relationship so as to allow one parry to exercise control or direction over the manner or method by which the other parry performs the services which are the subject matter of this Agreement. Neither party is authorized or empowered to act as agent for the other for any purpose and shall not on behalf of the other enter into any contract, warranty, or representation as to any matter. Neither parry shall be bound by the acts or conduct of the other party. Neither party, nor any other person performing services on behalf of such parry pursuant to this Agreement, shall have any right or claim against the other party for Social Security benefits, workers' compensation benefits, disability benefits, unemployment insurance benefits, health insurance benefits, paid time off, or any other employee benefit. Section 5.10 Waiver of Breach. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of said breach or a waiver of any other breaches of the same or other provisions of this Agreement. Section 5.11 Termination. The County may terminate this Agreement at any time in its sole discretion. The provisions in Article IV shall survive termination. (SIGNATURES FOLLOW ON NEXT PAGE) IN WITNESS WHEREOF, the authorized representatives of the County and Licensee have executed this Agreement as of the date first written above. Board of County Commissioners Jefferson County, Washington Ma David Sullivan, Chair Funtastic Shows, Inc. Ma Its: Date: Approved as to form only: Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney