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HomeMy WebLinkAbout050619_ra04r Department of Public Works Page 1 of 1 Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Philip Morley, County Administrator From: Monte Reinders, Public Works Director/County Engineer Agenda Date: May 6, 2019 Subject: Agreement with Funtastic Shows for Rhody Carnival Statement of Issue: A special facilities use agreement with Funtastic Shows for the Rhody Festival Carnival at Memorial Field has been prepared and is ready for approval by the Board of County Commissioners. Analysis/Strategic Goals/Pro's &t Con's: The agreement states the purpose of the event, sets terms and conditions, list insurance requirements, and indemnifies the County. The Rhody Festival Association pays $2,200 in facility use fees for the carnival. Fiscal Impact/Cost Benefit Analysis: Semi-truck traffic and heavy equipment used on Jefferson County's premier athletic facility poses a serious risk to the playing surface and irrigation system. The agreement holds the carnival vendor responsible for up to $10,000 in damages and reduces risk and liability. Recommendation: Sign three copies of the agreement and return two to Public Works. Department Contact: Matt Tyler. 385-9129 Reviewed By: /11111111111riel< 40I' . . �p Morle , Co rator /-A- 4 Date JEFFERSON COUNTY SPECIAL FACILITY USE AGREEMENT THIS SPECIAL FACILITY USE AGREEMENT(this"Agreement") is entered into on the day of ,2019(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 FACILITY 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 ("Facility"),and Licensee desires to use the Facility 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 ofthe Facility necessary for the purposes described below,under the terms set forth in this Agreement,and in consideration for permission to access and use the Facility,the Licensee hereby agrees to fully comply with all the terins.and conditions of this Agreement.. Section 1.02 Definitions. Date(s).and Time(s)are: May 13,2019 at 8:00 a.m. until May 19,2019 at 5pm. The Facility is:(1)Memorial Field, Port Townsend, Washington, including the constructed athletic field with sprinkler and electrical systems, surrounding land,buildings,fences,and other appurtenances. Purpose(s)of Use is:.Carnival in support of the 2019 Rhododendron Festival, in Port Townsend, Washington. ARTICLE Ii COORDINATION WITH RHODODENDRON FESTIVAL ASSOCIATION Section 2.01 Rhododendron Festival Association Use and Fee Agreement Required to Allow Licensee's Activities. The Rhododendron Festival Association("the Association")is the entity that will reserve Memorial Field with Jefferson County,and will host the Carnival as part of the Rhododendron Festival. Licensee's activities at the Facility are allowed conditioned on the Association first executing and fully complying with a Use and Fee Agreement with the County. Section 2.02 Coordination with Rhododendron Festival Association. Licensee will conduct the Carnival for the Rhododendron Festival Association under a separate agreement between Licensee and the Association. Licensee will coordinate its activities at the Facility with the Association. ARTICLE iII TERMS AND CONDITIONS OF FACILITY 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 Facility mustbe kept.unobstructed by the Licensee and its participants and attendees. 1 Section 3.03 No Modifications to Facility without Consent of the County. Licensee shall not make any temporary or permanent modifications to the Facility without the prior written consent of the County. Section 104 Compliance. Licensee agrees to occupy and use the Facility in accordance with all applicable local, state,and federal laws, regulations, and ordinances, including but not limited to fire codes. Section 105 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 Facility. Section 3.06 Abandoned Property.Any personal property left in the Facility 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 Memorial Field susceptible to excessive damage and unsuitable for hosting the Carnival,and that the County,Licensee or the Rhododendron Festival Association may cancel hosting the Carnival at Memorial.Field,without penalty. If Memorial Field is cancelled,the County hereby approves hosting the 2019 Carnival at the County's HJ Carroll Park,provided that the Licensee must site and operate the Carnival in such area and subject to such conditions as shall be designated by the Jefferson County Public Works Director or his designee,and all provisions of this Agreement shall apply to Licensee and the Carnival at HJ Carroll Park. 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 Facility 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 hasbeen 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 (55,000,000)in the aggregate,in connection with the occupancy and use of the Facility 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 insuranceact,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 S 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 shallbe 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 requirementsstated in this Agreement. The insurance limits mandated for any insurance coverage required by this Agreement are not intended to bean 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. 3 Section 4.06 Damage to Facility. Licensee shall not damage the Facility. 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 S 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 thesame instrument. Section 5.05 Governing Lay.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 party 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 party 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 Fantastic Shows, Inc. 3407 SE 108th Ave Portland,OR 97266 f jnrobc ihaol.com contact i untasticshows.com Cell: 971-219-0.118 Main:.503-761-0989 4 if to the County: Monte Reinders Public Works Director, County Engineer 623 Sheridan St. Port Townsend, WA 98368 mreindersrcico.jefterson.iwa.us Mobile: 360-531-0163 Main: 360-385-9160 All notices will be deemed received and effective as follows: (I)if by hand-delivery,on the date of delivery; (2)if by overnight courier,on thedate 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 party to exercise control or direction over the manner or method by which the other party 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 party shall be bound by the acts or conduct of the other party.Neither party, nor any other person performing services on behalf of such party 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 asa continuing waiver of said breach or a waiver of any other breaches of the same or other provisions of this Agreement. Section 5.1 1 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) 5 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 Approved as to form only: Jefferson County,Washington By: • Kate Dean,Chair Philip C. Hunsucker,Chief Civil Deputy Prosecuting Attorney Funtastic Shows, Inc. By Its: (I ie'.L 't,d:GoG _ Date: S 1-/'9 6 ® DATE(MMlDD/YYYY) ACO AC� CERTIFICATE OF LIABILITY INSURANCE 5/1/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Joanne Manion Arthur J.Gallagher Risk Management Services, Inc. PHONE H No.Ext):425-454-3386 FAX,No):425 451-3716 777 108th Ave NE,#200 E-MAIL Bellevue WA 98004 ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC/I INSURERA:INSURERB Everest National Insurance Company 10120 INSURED - FUNTRID-01 Funtastic Shows, Inc. 3407 SE 108th Ave. " • INSURER C: • Portland, OR 97266 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:821675910 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBRI POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSD WVD I POLICY NUMBER (MM/DDIYYYY) (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY SI8ML01764191 4/5/2019 4/5/2020 EACH OCCURRENCE $1,000,000 CLAIMS-MADE X OCCUR DAMAGE TO RENTED PREMISES(Ea occurrence) $100,000 MED EXP(Any one person) $ PERSONAL&ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE _ $2,000,000 POLICY PRO- JECT LOC PRODUCTS-COMP/OP AGG _$2,000.000 OTHER: $ A AUTOMOBILE LIABILITY SI8ML01764191 4/5/2019 4/5/2020 COMBINED SINGLE LIMIT $1.000,000 (Ea accident) X ANY AUTO BODILY INJURY(Per person). $ OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS X HIRED X NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY (Per accident) $ A UMBRELLA LIAB X OCCUR SIBEX01118191 4/5/2019 4/5/2020 EACH OCCURRENCE $4,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $4,000,000 DED X RETENTIONS ii $ A WORKERS COMPENSATION SI8ML01764191 4/5/2019 4/5/2020 PER STATUTE X ER Slop Gap AND EMPLOYERS'UABILITY Y I N ANYPROPRIETOR/PARTNERJEXECUTIVE E.L.EACH ACCIDENT $1,000,000 • OFFICER/MEMBER EXCLUDED? N/A (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE $1,000.000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS!LOCATIONS!VEHICLES(ACORD 10.1,Additional Remarks Schedule.may be attached If more space Is required) Rhododendron Festival Association;Memorial Field with Jefferson County are included as additional insureds as respects general liability but only as respects the operation of the named insured as required by contract or agreement and per policy terms and conditions-policy form CG133C 07/95. Event Dates: May 13-22,2019 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Jefferson County Public Works ACCORDANCE WITH THE POLICY PROVISIONS. 623 Sheridan Port Townsend WA 98368 AUTHORIZED REPRESENTATIVE USA /7 C ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD