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HomeMy WebLinkAboutCultural Development Authority of King County (4Culture) #109637AAgreement No. 109637A Contractor's Federal Taxpayer ID No. (last 4 digits) 1228 Contractor City of Auburn Arts Commission Services Provided: Fixed Assets purchase Contract Amount: $ 6,000.00 Fund Source: CP - Arts Cultural Facilities CONTRACT FOR CAPITAL CONSTRUCTION & FIXED ASSET PURCHASE THIS CONTRACT is entered into by THE CULTURAL DEVELOPMENT AUTHORITY OF KING COUNTY ("4CULTURE"), whose address is 101 Prefontaine PI S, Seattle, WA 98104-2672 and telephone number is (206) 296-7580 and the Citv of Auburn Arts Commission (the "Contractor"), whose address is 910 Ninth Street SE, Auburn. WA 98002 and telephone number is (253) 804-5057. Contractor is an art, cultural or historical organization qualified to receive funds pursuant to King County Code Sections 2.48 and 4.42 and RCW 67.28.180 and as hereinafter may be amended. The 4Culture Board of Directors approved providing funds for this project by Motion No. 2009-64. 4Culture desires to provide funds with which the Contractor shall render certain services in connection with the acquisition of fixed assets that will benefit the Citv of Auburn Arts Commission in providing services to King County citizens. Such services are for the benefit of citizens, art museums, cultural museums, heritage museums, the arts, and/or the performing arts and are consistant with those defined in RCW 67.28.180 ("Public Benefit Services"). 4Culture is organized pursuant to King County Ordinance 14482 and RCW 35.21.730, et sec. RCW 35.21.750 provides as follows: "[All] liabilities incurred by such public corporation, commission, or authority shall be satisfied exclusively from the assets and properties of such public corporation, commission or authority and no creditor or other person shall have any right of action against the city, town, or county creating such corporation, commission, or authority on account of any debts, obligations, or liabilities of such public corporation, commission, or authority." The legislative authority of 4Culture has found and declared that providing funds to Contractor to reimburse Project costs in consideration of services provided hereunder constitutes a public purpose with the meaning of Article VII, Section 1 of the Washington State Constitution for which public funds may properly be expended or advanced. NOW, THEREFORE, in consideration of payments, covenants, and agreements hereinafter mentioned, to be made and performed by the parties hereto, the parties covenant and do mutually agree as follows: Cultural Facilities Equipment Agreement 2009 Page 1 of 8 A 1. SCOPE OF SERVICES A. The Contractor shall provide services and comply with the requirements set forth hereinafter and in the following attached exhibits which are incorporated herein by reference: ~ Project Proposal and Budget Attached hereto as Exhibit A ~ Specific Scope of Work Attached hereto as Exhibit B Z Insurance of Requirements Attached hereto as Exhibit C Z Public Benefit Provisions Attached hereto as Exhibit D F-1 Personnel Inventory (K.C.C 12.16.060A)(In combination with other a reements, in excess of $25,000 in a calendar ear Attached hereto as Exhibit E ~ Affidavit and Certificate of Compliance (K.C.C 12.16.060B) for A reements in excess of $25,000 Attached hereto as Exhibit F [--J Disability Assurance of Compliance/Section 504 KCC 12.16.060D Attached hereto as Exhibit G B. Construction and Fixed Assets Purchase. Funds awarded under this Agreement shall be used solely to reimburse the Contractor for expenses incurred expressly and solely in accordance with the Project Proposal and Budget and the Specific Scope of Contract Work. Any amendment or modification to the Project Proposal and Budget or the Specific Scope of Contract Work must be approved in writing by 4Culture. The work described generally by the Project Proposal and Budget and more specifically by the Specific Scope of Contract Work shall hereinafter be referred to as the "ProjecY". C. In addition to performing the Project, Contractor shall provide the Public Benefit Provisions as specified in the Public Benefit Provisions. D. The Contractor agrees to use any improvement constructed and any fixed assets purchased through this contract to provide Public Benefit Services for a period of not less than 10 years from the date of purchase. Should the Contractor, prior to the expiration of this ten-year period, dissolve its operations, relocate outside of King County or determine that it no longer needs the improvement constructed or equipment purchased hereunder, Contractor shall notify 4Culture thereof and, upon 4Culture's request, such improvements (to the extent practicable) and such equipment, shall be transferred without additional consideration to a King County based non-profit art, cultural or historic organization selected by 4Culture in its sole discretion. E. The Contractor agrees to acknowledge 4Culture as a source of support for the Project in prominently located permanent signage utilizing the following logo: / GULTURE KING C6UN7Y iQ061N0 TAX Approved logos are available for download in a variety of formats at http://www.4Culture.org/partner/logos F. The Contractor agrees to notify 4Culture in advance of any public Project activities, including but not limited to ground breaking events, dedications, and other public programs. Cultural Facilities Equipment Agreement 2009 Page 2 of 8 II. DURATION OF CONTRACT This Agreement shall commence on September 15, 2009 and shall terminate upon the later of (1) completion of the Specific Scope of Contract Work and payment of the final invoice or (2) the end time period specified, if any, Public Benefit Provisions. This Agreement, however, may be terminated earlier as provided in Section IV hereof. III. COMPENSATION AND METHOD OF PAYMENT A. 4Culture shall reimburse the Contractor for its actual and authorized expenditures incurred in satisfactorily completing the Specific Scope of Services and otherwise fulfilling all requirements specified in this contract in an aggregate amount not to exceed 6 000.00. B. Contractor may apply to 4Culture for reimbursement upon completion of specified phases of the Specific Scope of Services pursuant to the following Reimbursement Schedule: Phase Description Amount Available for Expected Date of No. Reimbursement Com letion 1- 2 Purchase of Lighting & Sound $6,000.00 January 1, 2011 equipment for Auburn Avenue Theater C. All invoices for reimbursement for specific phases of the Project shall include documentation that identifies vendors, details costs for labor and materials and specifies the equipment purchased pursuant to this contract (make and model Such documentation shall include, but may not be limited to, purchase orders or receipts for purchases. D. Accompanying the final invoice for the project, the Contractor shall also submit: 1. A project status report that documents costs (including costs not reimbursed by 4Culture funds) and identifies funding sources. 2. At least two images (prints, slides, or digital images accompanied by a high-quality print- out) of publishable quality for use by 4Culture to publicize the Cultural Facilities Grant program. Photos shall have credits, caption information, and permission to publish. E. All payments are subject to site inspection and approval by 4Culture. F. If the Contractor fails to comply with any terms or conditions of this contract or to provide in any manner the work or services agreed to herein, 4Culture may withhold any payment to the Contractor until 4Culture is satisfied that corrective action, as specified by 4Culture, has been completed. This right is in addition to and not in lieu of the 4Culture right to terminate this contract as provided in Section IV, any other rights of 4Culture under this Agreement and any other right or remedy available to 4Culture at law or in equity. Cultural Facilities Equipment Agreement 2009 Page 3 of 8 IV. TERMINATION OF AGREEMENT A. If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner its obligations under this Agreement or if the Contractor shall violate any of its covenants, agreements or stipulations of this Agreement, 4Culture may terminate this Agreement and withhold the remaining allocation. Prior to so terminating this Agreement, 4Culture shall submit written notice to the Contractor describing such default or violation. 4Culture shall not so terminate this Agreement if 4Culture determines that Contractor has, within twenty (20) days of the date of such notice, fully corrected such default or violation. B. Reimbursement for services performed by the Contractor, and not otherwise paid for by 4Culture prior to the effective date of a termination under subsections B and C herein, shall be as 4Culture reasonably determines. C. In the event of termination for cause, the Contractor shall, immediately upon 4Culture's request and in addition to any and all other remedies available to 4Culture in equity or at law, return to 4Culture immediately any funds, misappropriated or unexpended, which have been paid to the Contractor by 4Culture and all equipment, personal property and trade fixtures acquired as part of the Specific Scope of Contract Work. V. SECURITY AGREEMENT A. Contractor grants to 4Culture a security interest in the fixed assets and equipment purchased in whole or in part with funds provided under this Agreement including all attachments, accessions, accessories, tools, parts, supplies, increases, and additions to and all replacements of and substitutions for such property and all proceeds thereof (the "Collateral") to secure the Contractor's obligations under this Agreement (the "Indebtedness"). Contractor authorized 4Culture to file such financing statements and Contractor agrees to take whatever actions are requested by 4Culture to perfect and continue 4Culture's security interest in the Collateral. Contractor hereby appoints 4Culture as its irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect or to continue the security interest granted in this Agreement. Contractor shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral. All proceeds from any disposition of the Collateral (for whatever reason) shall be held in trust for 4Culture and shall not be commingled with any other funds. Contractor shall promptly notify 4Culture of any loss or damage to the Collateral. 4Culture may make proof of loss if Contractor fails to do so within fifteen (15) days of the casualty. All proceeds of any insurance on the Collateral, including accrued proceeds thereon, shall be held by 4Culture as part of the Collateral. B. Each of the following shall constitute an Event of Default under this Agreement: (1) Failure of Contractor to make any payment or otherwise perform an obligation when due on the Indebtedness; (2) The dissolution, liquidation, or any other termination of Contractor's existence as a going business, the insolvency of Contractor, the appointment of a receiver for any part of Contractor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Contractor; (3) Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Contractor or by any governmental agency against the Collateral or any other collateral securing the Indebtedness. If an Event of Default occurs under this Agreement, at any time thereafter, all of the indebtedness shall be, at 4Culture's option, immediately due and payable, 4Culture shall have all the rights of a secured party under the Washington Uniform Commercial Code, as amended from time to time. In addition, 4Culture shall have and may exercise any or all other rights and remedies it may have available at law, in equity, or otherwise. Cultural Facilities Equipment Agreement 2009 Page 4 of 8 VI. MAINTENANCE OF RECORDS A. The Contractor shall maintain accounts and records, including personnel, property, financial, and programmatic records and other such records as may be deemed necessary by 4Culture to ensure proper accounting for all contract funds and compliance with this Agreement. All such records shall sufficiently and properly reflect all direct and indirect costs of any nature expended and services provided in the performance of this Agreement. B. These records shall be maintained for a period of six (6) years after termination of this Agreement unless a longer retention period is required by law. VII. AUDITS AND EVALUATIONS A. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by 4Culture and/or federal/state officials so authorized by law during the performance of this Agreement and six (6) years after termination hereof. B. The Contractor shall provide right of access to its facilities, including by any subcontractor to 4Culture, the King County, state and/or federal agencies or officials at all reasonable times in order to monitor and evaluate the services provided under this Agreement. 4Culture will give advance notice to the Contractor in the case of fiscal audits to be conducted by 4Culture. C. The Contractor agrees to cooperate with 4Culture in the evaluation of the Contractor's performance under this contract and to make available all information reasonably required by any such evaluation process. The results and records of said evaluations shall be maintained and disclosed in accordance with RCW Chapter 42.17 (Public Records Act). VIII. CONTRACT MODIFICATIONS No modification or amendment of this Agreement shall be valid unless made in writing and signed by the parties hereto. IX. NO WAIVERS 4Culture's failure to insist upon the strict performance of any provision of this Agreement or to exercise any right based upon a breach thereof or the acceptance of any performance during such breach shall not constitute a waiver of any right under this Agreement. X. FUTURE SUPPORT 4Culture makes no commitment to support the services contracted for herein nor guarantee regarding the success of the services and assumes no obligation for future support of the Project except as expressly set forth in this Agreement. Cultural Facilities Equipment Agreement 2009 Page 5 of 8 XI. OWNERSHIP OF PROJECT/CAPITAL FACILITIES Contractor and 4Cufture agree and acknowledge that the real property improved and the personal property and fixtures acquired as part of the Project are not owned by 4Culture and 4Culture does not expect to acquire any ownership interest in or title to the capital facilities and/or equipment constructed or purchased under this Agreement. In addition, although Contractor will be reimbursed for certain of its expenditures as provided herein, the capital facilities constructed or improved hereunder are not being constructed at the cost of the state or a municipality and therefore are not "public works" within the meaning of RCW 39.04.10. Contractor shall not pledge or assign its rights to reimbursement hereunder to any third party for any reason, including, without limitation, to suppliers or subcontractors as security for Contractor's obligations to such third parties. XII. HOLD HARMLESS AND INDEMNIFICATION A. In providing services under this Agreement, the Contractor is an independent contractor, and shall determine the means of accomplishing the results contemplated by this Agreement. Neither the Contractor nor its officers, agents or employees are employees of the 4Culture for any purpose. The Contractor shall comply with all applicable federal and state laws and regulations regarding employment, minimum wages and hours, and discrimination in employment. The Contractor is responsible for determining the compensation of its employees, for payment of such compensation, and for all federal and/or state tax, industrial insurance, and Social Security liability that may result from the performance of and compensation for these services. The Contractor and its officers, agents, and employees shall make no claim of career service or civil service rights which may accrue to a 4Culture employee under state or local law. 4Culture assumes no responsibility for the payment of any compensation, wages, benefits, or taxes by, or on behalf of the Contractor, its employees and/or others by reason of this Agreement. To the extent allowed by law, the Contractor shall protect, defend, indemnify and save harmless 4Culture and its officers, agents, and employees from and against any and all claims, costs, and/or losses whatsoever occurring or resulting from (1) the Contractor's failure to pay any such compensation, wages, benefits, or taxes; (2) the supplying to the Contractor of work, services, materials, or supplies by Contractor employees or other suppliers in connection with or support of the performance of this Agreement. The Contractor shall also defend, indemnify, and save harmless 4Culture, and its officers, agents, and employees, from and against any and all claims made by Contractor's employees arising from their employment with Contractor. B. To the full extent provided by applicable law, the Contractor shall protect, defend, indemnify, and save harmless 4Culture its officers, employees, and agents from any and all costs, claims, judgments, and/or awards of damages, arising out of or in any way resulting from the acts or omissions of the Contractor, its officers, employees, and/or agents, except to the extent resulting from 4Culture's sole negligence. If this Agreement is a"a covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate" within the meaning of RCW 4.24.225, the Contractor shall so protect, defend, indemnify, and save harmless 4Culture its officers, employees, and agents only to the extent of the Contractor's, its officers', employees', and/or agents' negligence. The Contractor agrees that its obligations under this subparagraph extend to any claim, demand, and/or cause of action brought by or on behalf of any employees, or agents. In the event 4Culture incurs any judgment, award and/or cost arising there from including attorneys' fees to enforce the provisions of this article, all such fees, expenses, and costs shall be recoverable from the Contractor. Claims shall include, but are not limited to, assertions that the use or transfer of any software, book, document, report, film, tape or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright. Cultural Facilities Equipment Agreement 2009 Page 6 of 8 XIII. INSURANCE REQUIREMENTS The Contractor shall procure and maintain for the duration of this Agreement insurance as described on the Exhibit labeled as Insurance Requirements attached here to. XIV. CONFLICT OF INTEREST Chapter 42.23 RCW (Code Of Ethics For Municipal Officers--Contract Interests) is incorporated by reference as if fully set forth herein and the Contractor agrees to abide by all the conditions of said Chapter. Failure by the Contractor to comply with any requirements of such Chapter shall be a material breach of contract. In addition, Contractor represents, warrants and covenants that no officer, employee, or agent of 4Culture who exercises any functions or responsibilities in connection with the planning and implementation of the Specific Scope of Contract Services funded herein, has or shall have any beneficial interest, directly or indirectly, in this contract. The Contractor further represents, warrants and covenants neither it nor any other person beneficially interested in this Agreement has offered to give or given any such officer, employee, or agent of 4Culture, directly or indirectly, any compensation, gratuity or reward in connection with this Agreement. The Contractor shall take all appropriate steps to assure compliance with this provision. XV. NONDISCRIMINATION During the performance of this Agreement, Contractor shall comply with state, federal and local legislation requiring nondiscrimination in employment and the provision of services to the public, including, but not limited to: Title VI of the Civil Rights Act of 1964; chapter 49.60 RCW (the Washington state law against discrimination); K.C.C. chapter 12.16 regarding discrimination and affirmative action in employment by contractors, subcontractors and vendors; K.C.C. chapter 12.17 prohibiting discrimination in contracting; K.C.C. chapter 12.18 requiring fair employment practices; K.C.C. chapter and 12.22 prohibiting discrimination in places of public accommodation. The Contractor shall maintain, until 12 months after completion of all work under this contract, all written quotes, bids, estimates or proposals submitted to the Contractor by all businesses seeking to participate in this Agreement. The Contractor shall make such documents available to the 4Culture for inspection and copying upon request. XVI. SEVERABILITY In the event any term or condition of this Agreement or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other terms, conditions, or applications of this Agreement that can be given effect without the invalid term, condition, or application. To this end the terms and conditions of this Agreement are declared severable. XVII. ENTIRE CONTRACT The parties agree that this Agreement is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. Both parties recognize that time is of the essence in the performance of the provisions of this Agreement. Cultural Facilities Equipment Agreement 2009 Page 7 of 8 XVIII. ATTORNEYS' FEES: EXPENSES Contractor agrees to pay upon demand all of 4Culture's costs and expenses, including attorneys' fees and 4Culture's legal expenses, incurred in connection with the enforcement of this Agreement. 4Culture may pay someone else to help enforce this Agreement, and Contractor shall pay the costs and expenses of such enforcement. Costs and expenses include 4Culture's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment collection services. Contractor also shall pay all court costs and such additional fees as may be directed by the court. XIX. SURVIVAL The terms and conditions of Secitons I.D, V, VI, VII, IX, XII, XIII, XIV, XV, and XVIII shall survive the termination of this Agreement and shall be continuing obligations of the parties. 4CULTURE: CONTRACTOR: 4Culture-CDA Executive Director Si ~e°fe,,--B- 4ewl'S Date Name (Please type or print) ►"ttkV p r Title Please type or print) DEC 17 2009 Date ~ Cultural Facilities Equipment Agreement 2009 Page 8 of 8 EXHIBIT B SPECIFIC SCOPE OF WORK CONTRACT NO. 109637A 4Culture, the Cultural Development Authority of King County, will reimburse City of Auburn Arts Commission for satisfactory completion of the services and requirements as specified in this contract in an amount not to exceed 6 000.00. Payment will be made available in the following manner: Invoice #1 -#2: For up to $6,000.00 total: For the acquisition and installation of Lighting & Sound equipment for use at the Auburn Avenue Theater and the purchase/installation of theater seats made possible by an unexpected opportunity to acquire 300 seats from the Tacoma Grand Cinema Accompanying the 4Culture invoice for these expenses will be documentation that identifies vendors and details work perFormed. Such documentation shall include, but is not limited to, proofs of purchase, work orders or receipts for purchases. NOTE: In order to be an allowable item, equipment purchased must be items classified as "fixed assets" intended for 10 year use and valued as depreciable assets and not expensable materials. NOTE: Any proiect involvinq construction, restoration or rehabilitation work on an historic structure is subiect to the followinq additional requirements: Any rehabilitation and/or restoration project involving an historic resource listed on the National Register of Historic Places or a local landmarks register, or determined eligible for said registers including a resource in process of nomination, must adhere to The Secretary of the lnterior's Standards for Treatment of Historic Properties. Any rehabilitation and/or restoration project that would affect any designated feature(s) of significance of a King County Landmark or local landmark designated by way of an interlocal agreement for preservation services with King County, including a contributing property located within an historic district, must obtain a Certificate of Appropriateness (COA) from the King County Landmarks Commission prior to obtaining a building permit or commencing construction. Any rehabilitation and/or restoration project that would affect a designated landmark located in a jurisdiction that is a Certified Local Government (CLG) with professional staff, must provide evidence that it has received any formal approval required by law from a qualified design review board prior to obtaining a building permit or commencing construction. Facility Contract Specific Scope of Service EXHIBIT C INSURANCE REQUIREMENTS Contractor shail procure, at its sole cost and expense, insurance against claims for injuries to persons or damages to property which may arise from, or in connection with the performance of work hereunder by the Contractor, his agents, representatives, employees, and/or subcontractors. The costs of such insurance shall be paid by the Contractor or subcontractors. For All Coverages: Each insurance policy shall be written on an "Occurrence" form. 1. Minimum Scope of Insurance needed for this contract is as follows: ~ Commercial General Insurance Services Office form number (CG 00 01 Ed. 11-88)-Minimum Liability Combined Single Limit of $1,000,000 BI & PD with a General Aggregate er roject F-i Automobile Liability Covering all owned and non-owned and hired automobiles - Combined Sin le Limit of $1,000,000 BI & PD 2. Deductibles and Self Insured Retentions. Any deductibles or self-insured retentions must be declared to, and approved by 4Culture. The deductible and/or self-insured retention of the policies shall not apply to the Contractor's liability to 4Culture and shall be the sole responsibility of the Contractor. 3. Other Insurance Provisions A. The insurance policies are to contain, or be endorsed to contain, the following provisions: (a) General Liability Policies (1) 4Culture, its officers, employees and agents are to be covered as primary additional insureds as respects liability arising out of activities performed by or on behalf of the Contractor in connection with this Agreement. (2) To the extent of the Contractor's negligence, the Contractor's insurance coverage shall be primary insurance as respects 4Culture, its officers, employees, and agents. Any insurance and/or self-insurance maintained by the 4Culture, its officers, employees, or agents shall not contribute with the Contractor's insurance or benefit the Contractor in any way. (3) The Contractor's insurance shall apply separately to each insured against whom claim is made and/or lawsuit is brought, except with respect to the limits of the insurer's liability. (b) All Policies (1) Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, except as reduced in aggregate by paid claims, at any point during the life of this contract. 4. Acceptability of Insurers Unless otherwise approved in writing by 4Culture, insurance is to be placed with insurers with a Best's rating of no less than A-VIII, or, if not rated with BesYs, with minimum surpluses the equivalent of Bests' surplus size VIII. 5. Verification of Coverage Unless otherwise approved in writing by 4Culture, Contractor shall furnish 4Culture with certificate(s) of insurance evidencing compliance with requirements set forth above, which certificate(s) shall provide that no material change, or cancellation or nonrenewal of policies referred to herein shall occur without thirty (30) days' prior written notice to 4Culture. Facility Contract SpeciYic Scope of Service EXHIBIT D PUBLIC BENEFIT PROVISIONS CONTRACT NO. 109637A In exchange for receiving these funds the Contractor, City of Auburn Arts Commission, shall agree to the following provisions to ensure that the citizens of King County receive public benefit: The City of Auburn's Arts Commission will be committed to using the Auburn Avenue theater facility and other locations in Auburn to provide public arts experiences using the equipment purchased with this award for a period of no less than 10 years. During that time, the public will regularly have access to their programs and will benefit from the following types of potential opportunities: • Regularly scheduled free or pay-what-you-can performances or previews at Auburn Avenue Theater • Access to special events, workshops or festivals held on the site of Auburn Avenue Theater or at other locations in Auburn • Access to educational programs produced by the City of Auburn Arts Commission that are targeted to underserved King County populations such as students, senior citizens, or other specific audiences The Contractor agrees to widely publicize its public benefit performances, events and programs throughout King County and to track the number of public benefit events and audiences served by such programs. Facility Contract Public Benefit Requirements