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PRHSPS PKT 10-10-2023CIT low Federal Way Parks, Recreation, Human Services & Public Safety (PRHSPS) Council Committee Regular Meeting Agenda I (October 10, 2023 City Hall I 5:00 p.m. Council Chambers* The City Council may amend this regular meeting agenda and take action on items not currently listed. Regular Meetings are recorded and televised live on Government Access Channel 21. To view meetings online, agenda materials, and access public comment sign-up options please visit www.cityoffederalway.com. *Remote attendance options available via Zoom meeting code: 691 054 979 and passcode: 442570 1. CALL TO ORDER 2. PUBLIC COMMENT (3 minutes) 3. COMMITTEE BUSINESS Topic Title/Description A. Approval of September 12, 2023 Minutes B. Vehicle Purchase for Special Investigations Unit C. Purchase of Portable Surveillance Camera Trailers D. Parking Lot Sweeping Services 2024-2026 E. Performing Arts and Event Center Venue Management Contract Presenter Page Action Council or Info Date 3 Action N/A Murphy 7 Action Consent 10/17/23 Murphy 11 Action Consent 10/17/23 Gressett 17 Action Consent 10/17/23 Gressett 55 Action Council Business 10/17/23 4. OTHER 5. FUTURE MEETING: The next PRHSPS meeting will be November 14, 2023 at 5:00 p.m. 6. ADJOURNMENT The Council Committee may add items and take action on items not listed on the agenda at any regularly scheduled meeting Committee Meetings are video recorded and may be televised on Government Access Channel 21. To view Committee Meetings online please visit FWTV at www.citvoffederalway.com Committee Members Jack Walsh, Chair Lydia Assefa-Dawson Paul McDaniel City Staff John Hutton, Parks Director Mary Jaenicke, Administrative Assistant II K:\PRHSPS Committee\2023\10-10-2023 Agenda.doc City of Federal Way City Council Parks, Recreation, Human Services & Public Safety Committee September 12, 2023 City Hall 5:00 P.M. Council Chambers MEETING SUMMARY Committee Members in Attendance: Chair Jack Walsh and Council Member Paul McDaniel Committee Members present via zoom: Council Member Lydia Assefa-Dawson Other Councilmembers in Attendance: Council President Linda Kochmar and Deputy Mayor Susan Honda Staff in Attendance: Parks Director John Hutton, Deputy Parks Director Jason Gerwen, Assistant City Attorney Joanna Eide, Finance Director Steve Groom, Commander Cary Murphy, Contract Administrator Autumn Gressett and Administrative Asst. Mary Jaenicke. Guest: Rick Hontz, Senior Vice President OVG360, Brian Hoffman, General Manager OVG, Bernie O'Donnell, President of Rock Project Management and Jason Suzaka, Project Manager for Rock Project Management 1. CALL TO ORDER: 5:00 PM 2. PUBLIC COMMENT: None 3. COMMITTEE BUSINESS: Topic Title/Description A. Approval of Minutes: July 11, 2023 Committee approved the July 12, 2023 PRHSPSC minutes as written. ■ Moved: Assefa-Dawson Seconded: McDaniel Passed: 3-0 unanimously B. King County Sheriff's Office Registered Sex Offender Cost Reimbursement Agreement for 2023-2024: Presented by Commander Cary Murphy Commander Cary Murphy reported the Federal Way Police Department will receive a grant in the amount of $16,304.75 from the King County Sheriff's Office. This grant will reimburse FWPD for overtime expenses incurred while verifying current addresses and residences of registered sex and kidnapping offenders. There are currently 207 registered in Federal Way. Questions and discussion followed. Motion to forward the proposed Agreement to the September 19, 2023 consent agenda for approval. • Moved: McDaniel + Seconded: Assefa-Dawson • Passed: 3-0 unanimously Committee Members City Staff Jack Walsh, Chair 3 John Hutton, Parks Director Lydia Assefa-Dawson, Member MaryJaenic*e, Administrative Assistant II Paul McDaniel C. WASPC Funding for Use of Force on Duty to Intervene Training: Presented Commander Cary Murphy Commander Cary Murphy reported that the FWPD will receive a grant in the amount of $47,455.50 to cover the costs of state -required Uses of Force and Duty to Intervene training. This is one-time funding from the WA Legislature and will be used to cover state -required training. The funding is not restricted to new training; it can be used to support expenses already incurred. There no specifications on how they can use the funding. Questions and discussion followed. Committee moved to forward the proposed agreement to the September 19, 2023 Business agenda. Moved: McDaniel Seconded: Assefa-Dawson Passed: 3-0 unanimously D. Heritage Capital Project Grant Acceptance — Brooklake Community Center: Presented by Contract Administrator, Autumn Gressett Contract Administrator Autumn Gressett reported that the Parks Department will receive a grant in the amount of $50,440 and will be used for the evaluation and design of the Brooklake Community Center. The cost to the City to receive the funds are $104,000 in a 2:1 match. Completion of the evaluation and design of the Brooklake Community Center will provide information to the City in determining future costs of any resulting project for the property. This evaluation will provide information regarding electrical needs, plumbing and is the building structurally safe. Another part of the evaluation is having community meetings to determine how the space will be utilized. Questions and discussion followed. Motion to forward the proposed grant acceptance and contract as amended and presented by staff to the September 19, 2023 Regular Council Meeting consent agenda for approval. Moved: McDaniel Seconded: Assefa-Dawson Passed: 3-0 unanimously E. OVG360 Venue Management of PAEC Renewal: Presented by Contract Administrator, Autumn Gressett and guests Rick Hontz and Brian Hoffman Contract Administrator Autumn Gressett gave a PowerPoint presentation on OVG360's management of the PAEC. Her presentation included an overview of the performances, rentals a breakdown on the revenues and revised performance metrics. There are seven team members that currently work at the PAEC. The venue management contract began in August of 2018 and there have been 103,822 theater tickets sold since 2018. The proposed contract renewal encompasses substantial ten-year term, extending the partnership until the year 2033. Questions and discussion followed. Committee Members City Staff Jack Walsh, Chair 4 John Hutton, Parks Director Lydia Assefa-Dawson, Member MaryJaemcke, Administrative Assistant II Paul AIcDanic:l F. Rock Project Management: Presented by Contract Administrator Autumn Gressett and guests Bernie O'Donnell and Jason Suzaka Contract Administrator Autumn Gressett gave a PowerPoint presentation on the Federal Way Community Center locker room renovations. The city has entered into an agreement with Rock Project Management to move forward with the design avid reconstruction of the FWCC locker rooms. The scope of work includes upgrades to the mechanical supply and exhaust system and comprehensive demo and reconstruction of the locker rooms, wet sauna, dry sauna, showers cabanas and related spaces. Staff hopes to award a construction contract in May 2024 with the renovations being completed in May 2025. The budget for the program is $2,300,000 Questions and discussion followed. G. MOU with the Historical Society of Federal Way Presented by Parks Director John Hutton Parks Director John Hutton reported that the proposed MOU updates some terms .of the previous agreements including compensation. The total amount of the MOU is $52,500 for the term of the agreement to be paid quarterly. Questions and discussion followed. Motion to forward the proposed MOU to the September 19, 2023 Council consent for approval. Y Moved: McDaniel Seconded: Assefa-Dawson e Passed: 3-0 unanimously H. Signage to Discourage Panhandling: Presented by Committee Chair Walsh Chair Walsh has discussed with some members of the community and Council the concept of having some signage to discourage panhandling. He presented a PowerPoint of examples of signage that is being used in other parts of the country. The goal for tonight is to have a discussion to see if this is something the committee is interested in doing. The signage discourages panhandling and encourages people to donate to charities. The Supreme Couirt has ruled that you cannot outlaw panhandling because it's free speech. Questions and discussion followed. Committee Members City Staff Jack Walsh, Chair 5 John Hutton, Parks Director LydiaAssefa-Dawson, Member MaryJaenfcke, Adminis&ativeAssistant 11 Pau11VcDan1e1 Authorization to Apply for a local Parks Grant for Saghalie Park: Presented by Parks Deputy Director Jason Gerwen Parks Deputy Director Jason Gerwen stated the Parks Department is seeking approval to apply for grant funds the restoration of four tennis courts and one basketball court at Saghalie Park. The estimated amount of the grant is between $60,000-$70,000. No matching funds are required. The resurfacing of these courts has been on the list of backlogged maintenance items within the parks system. Questions and discussion followed. Motion to forward the proposed authorization for staff to apply for a local maintenance grant to resurface four tennis courts and one basketball court to the September 19, 2023 consent agenda for approval. • Moved: McDaniel • Seconded: Assefa-Dawson • Passed: 3-0 unanimously 4. OTHER: 5. FUTURE MEETING: The next PRHSPSC meeting will be held October 10, 2023 at 5:00 p.m. in City Hall Council Chambers. 6. ADJOURNMENT: The meeting was adjourned at 07:10 p.m. Committee Members Jack Walsh, Chair Lydia Assefa-Dawson, Member Paul N rDanrel City staff 6 John Hutton, Parks Director Mary]aenicke, Administrative Assistant11 COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: VEHICLE PURCHASE FOR SPECIAL INVESTIGATIONS UNIT POLICY QUESTION: Should the City purchase a new vehicle for the Police Special Investigations Unit using State Asset Forfeiture Funds? COMMITTEE: PRHS&PSC MEETING DATE: Oct. 10, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Commander Cary Mur h DEPT: PD Attachments: Staff Report State Bid Quote Options Considered: 1. Accept the recommendation to approve the purchase. 2. Reject the recommendation to approve the purchase. MAYOR'S RECOMMENDATION: Option 1 MAYOR APPROVAL• '3 DIRECTOR APPROVAL: �,►i43 • • Col illee .,Cfltlncii ',' ,+7 IniliakR�j a IIIIII Fnili (pate ini[iallDate 7 COMMITTEE RECOMMENDATION: I move to forward the proposed Agreement to the October 17, 2023 consent agenda for approval. Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: ' I move approval of the Purchase Agreement, effective October 17, 2023, with a total purchase amount of $39, 565.12 from seizure funds and authorize the Mayor to sign said purchase agreement. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 12/2017 RESOLUTION # 7 CITY OF FEDERAL WAY MEMORANDUM DATE: October 10, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: Andy J. Hwang, Chief of Police SUBJECT: Vehicle Purchase for Special Investigations Unit Financial Impacts: The purchase of this vehicle will have no impact on the City of Federal Way budget as the purchase will be paid for using State Drug Asset Forfeiture funds. Ongoing costs for use and maintenance are already included within the Federal Way Police Department's (FWPD) Budget as the vehicle is replacing a vehicle already budgeted for. Background Informatiow In 2010, FWPD purchased a vehicle for use by the Special Investigations Unit using State Drug Asset Forfeiture funds for the purpose of conducting controlled substances enforcement. That vehicle now has over 130,000 miles on it and is nearing the end of its I ife cycle. The vehicle is suffering from numerous mechanical issues, including transmission problems, that would not be cost effective to repair. The new vehicle's primary use will be surveillance and covert operations conducted by the Special Investigations Unit (SIU). These operations often lead to the seizure of proceeds from criminal enterprise, which are auctioned with the proceeds deposited into the seizure fund account. Since the SIU is the primary source of these revenues, and maintaining an operable vehicle is necessary for SIU's operations and controlled substances enforcement, it is fitting that the funds from this account are used to purchase a new vehicle. The life expectancy, based on the existing vehicle proposed to be replaced, is approximately 10 years. The new vehicle will be purchased from the list of vehicles approved by the State bid at a price of $39,565.12 including tax. $ Rev. 7/18 Vehicle Quote Number: 2023-9-291 Create Purchase Re nest View arc aniration Durchase request This is a quote only. You must create a purchase request to order this vehicle(s) Contract & Dealer Information Contract #: 05916 - - — Dealer: ALAN WEBB MAZDA (W59283) Dealer Contact: George Zumwalt 3608 NE Auto Mall Dr Dealer Phone: (360) 892-9004 Vancouver WA 98662 Dealer Email: georgez@alanwebbautogroup.com Organization Information Organization: FEDERAL WAY, CITY OF - 21731 Email: cary.murphy@cityoffederalway.com Quote Notes: Vehicle Location: FEDERAL WAY Color Options & Qty ~ DEEP CRYSTAL BLUE MICA - 1 f� Tax Exempt: N Vehicle Options Order Code Option Description 2023-0347-001 2023 MAZDA CX-50 2.5 S Qty Unit Price Fact. Price' 1 $301005.00 $30,005.00 cvu-.4-1- .1 wu cult.✓n wvv 4.4 a rf [ I cMU - MULJO UUML r1CM I Cv A1VC I'IIKKUKZ), KCAK rUYYCK LLr 1 UAI C 1 4o7,` u.UU :�,,94U.UU � WITH PROGRAMMABLE HEIGHT ADJUSTMENT, WINDSHIELD WIPER DE-ICER, 8-WAY POWER ADJUSTABLE DRIVER'S SEAT WITH POWER LUMBAR SUPPORT, HEATED FRONT SEATS WITH 3-LEVEL ADJUSTMENT, FRONT AND REAR CENTER ARMREST WITH STORAGE 2023-0347-004 1 EXTRA KEY 1 $425.00 $425.00 2023-0347-008 RETRACTABLE CARGO COVER 1 $275.00 $275.00 2023-0347-012 FRONT & REAR SPLASHGUARDS 1 $220.00 $220.00 Quote Totals Total Vehicles: 1 Sub Total: $36,365.00 8.8 % Sales Tax: $3,200.12 1 Quote Total: $39,565.12 ;' CITY OF Federal INS Centered on Opportunity This page was intentionally. left blank. 10 COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: PURCHASE OF PORTABLE SURVEILLANCE CAMERA TRAILERS POLICY QUESTION: Should the City of Federal Way's Police Department purchase two additional surveillance camera trailers for criminal activity deterrence and investigation? COMMITTEE: PRHS&PSC MEETING DATE: October 10, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Cmdr. Cary Murphy DEPT: Police Department Attachments: 1. Staff Report 2. Recommendation memo for purchase of portable surveillance camera trailers 3. IV&C Equipment Proposal Options Considered: 1. Approve the proposed purchase. 2. Do not approve proposed purchase and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1 MAYOR APPROVAL: IRECTOR APPROVAL: "Cv ini[rec Cvu d O IrtiGallD.ta Liitial/Date Initialli7ata COMMITTEE RECOMMENDATION: I move to forward approval of the purchase of the portable surveillance camera trailers to the October 17, 2023, consent agenda. Committee Chair Committee Member - Committee Member PROPOSED COUNCIL MOTION: "I move approval of the purchase of the portable surveillance camera trailers " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # _ 11 CITY OF FEDERAL WAY MEMORANDUM DATE: October 10, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: Chief Andy J. Hwang SUBJECT: Purchase of Portable Surveillance Camera Trailers Financial Impacts: The Federal Way Police Department (FWPD) seeks to purchase two additional portable surveillance camera trailers to be used in efforts to impact and reduce criminal activity in the city related to the trafficking and illegal use of controlled substances. There will be no cost impacts to the City as the purchase for two trailers will be approximately $103,063.00, funded by drug asset seizure funds. Ongoing costs are expected to be minimal and related to normal trailer maintenance or damage replacements as needed and will be incorporated into the Police Department Budget. Background Information: Consistent with its mission statement, FWPD is always looking for innovative and efficient ways to reduce criminal activity. In line with this spirit, FWPD proposes to purchase of two additional portable surveillance camera trailers. These trailers will be used in partnership with local businesses and property owners to address and reduce criminal activity related to controlled substances in various locations throughout the City, including known drug problem areas. The trailers will supplement the efforts of our police officers and be integrated into the Safe City video surveillance system to document and better identify possible suspects. This type of deployment is similar to other temporary surveillance installations that are occurring now. Our current crime deterrent camera operations have been well -received and welcomed by businesses and organizations in the City. The City currently owns two identical portable surveillance trailers that have been deployed nearly 24 hours a day, 7 days a week since their acquisition. Business owners and property managers regularly ask for surveillance assistance in the ongoing effort to mitigate criminal behavior. The need for these trailers by the business community far exceeds the capabilities we currently have with two trailers. Purchasing two additional trailers will allow us to double the amount of deployments currently utilized. 12 Rev. 7/18 Federal Way PD Attn: Lt. B Klingele QUOTATION jo IPI Quotation Number: 260923-01 System Architecture: Industrial Video & Control /P/ntegrutioly, /Mc. Date: 26 September 2023 CONFIDENTIAL (SecurfngrourConnection tothe Future) - IP Integration, Inc. - Authorized Federal GSA Reseller Company Information Name: IP Integration, Inc Contact; Tom Hurley Address: PO Box 28617 Phone: 714.557.5200 Santa Ana, CA 92799 Fax: 714.242.9094 Tax ID: 32-0073785 Email: thurley@ipi-i.com Industrial Video & Control Long Deployment Surveillance Trailer Solar Powered with Gas Generator (System #1) Unit GSA Extended Item Part No Description Qty Price GSA Price 1 IPI-MVT-3001- CCTV HEAVY DUTY SURVEILLANCE 1 $ 45,001.00 $ 45,001.00 2CGP-ORCR TRAILER WITH TWO CAMERAS, ONBOARD RECORDER & 3G/4G/LTE CELLULAR ROUTER (SOLAR POWERED with GAS GENERATOR BACKUP) Enclosed hybrid powered trailer system with (1) PTZ HD camera, (1) 3600 Multisensor camera, onboard storage including Video Management Software and Cummins Onan QG 2800i Quiet Gasoline Generator. 2 IPI-VMA-RPA-RGD- Avigilon ACC ES Rugged 8-Port 1 $ 9,887.20 $ 9,887.20 8P4 Appliance (Open Market) 3 IPI-LED-PKG Remotely Operated LED Lighting 1 $ 802.20 $ 802.20 Package (Open Market) 4 IPI-ACC-SPEAKER IP Horn Speaker (Open Market) 1 $ 1,083.66 $ 1,083.66 5 IPI FREIGHT FREIGHT CHARGES 1 $ 3,000.00 $ 3,000.00 Ground Service Greenville, SC to Federal Way, WA TOTAL : $ 59,774.06 Industrial Video & Control Page 1 Quotation Proprietary Information not to be disclosed or reproduced without express permission of IP Integration, Inc 13 Federal Way PD Attn: Lt. B Klingele QUOTATION IPI Quotation Number: 260923-01 System Architecture: Industrial Video & Control Date: 26 September 2023 CONFIDENTIAL — Notes — jo /P Mtegration, Inc. (Securing Your Connection to the Future) 1. To purchase the products or services noted above, please specify the vendor name and address on your purchase order as follows: IP Integration, Inc. PO Box 28617 Santa Ana, CA 92799-8617 2. IPI GSA Contract: Contract Number: GS-35F-0740P Contract Expiration: Aug 11, 2024 3. Please email Purchase Order to thurlevCcDioi-1.com 4. Delivery: 30-45 days ARO 5. Payment Terms: Net 30 Payment is required to be made within 30 days of the date of an IPI issued invoice Credit Card Purchase: 3.5% transaction fees aDDly 6. Prices quoted are in U.S. Dollars. Freight, taxes and duties (if applicable) will be added to the invoice 7. FOB: Origin (Greenville, SC) Prepay and Add 8. Warranties: IVC warrants that the product will function substantially as detailed in the respective product specification. Hardware warranty is valid for a period of twelve (12) months from the date of delivery and software warranty is valid for a period of ninety (90) days from the date of delivery. 9. Sales Tax: Not Included, Tax Exemption required 10. Quote valid for 60 calendar days (Expires: 26 November 2023) 11. IPI is a Certified Small Business Federal Way PD Authorized Signature Printed Name Date ACCEPTED BY IP Integration, Inc. Thomas W HurleyDigitally signed by Thomas W Hurley Date: 2023.09.26 15:47:46-07-00- Authorized Signature Thomas HurlE Printed Name Date: September 26, 2023 — CONFIDENTIALITY — The data in this quotation is considered confidential and shall not be disclosed, duplicated, or used, in whole or in part without the express written consent of IP Integration, Inc. Industrial Video & Control Page 3 Quotation Proprietary Information not to be disclosed or reproduced without express permission of IP Integration, Inc 14 1VC MobileVision Products I r Choose from our standard options or have IVC customize a solution that exactly meets your mobile surveillance needs. Industrial Video & Control I www.ivcco.com 1 617.467.3059 15 lvc�c I N D U S T R I A L VIDEO & CONTROL - -7 "n ►MVT-3001 Trailer Specifications Trailer Dimensions Width 1781 mm/5' 8" Length 4040mm/13'2" Height 3048mm/10' Weight 1270Kg/2800lbs Camera / Equipment Box Mounted at top of mast 2 GAT6 & 1,6mm/4 Electric Cables Trailer Details Axle A/T single axle Mast Raise/Extension 24VDC Electric winch Mast height 25ft Mast Wind Rating Speed 100kph Lighting Package USDOT-approved Anti -theft Measures Locking compartments & wheel locks Battery Batteries 6 x 150AH Capacity 900AH Voltage DC 12V Material Colloid Supplied Voltage 24V ►MVT-3001 Standard Options Power plant ■ 990 watt solar array ■ Combustion engine • 100 - 240 VAC • Storage battery array Cameras • 1 - 5 camera configurations 30x HD PTZs with or without integrated illumination • HD fixed cameras Standard and radiometric thermal cameras • LPR (license plate recognition) cameras Local audio/visual alarm indicators Local NVR for video storage and management Wireless connectivity • 4G LTE cellular w/WiFi • 2.4GHz, 5GHz radio 2-way audio IVC surveillance trailers are well - suited for use in a variety of security & monitoring applications. Remote Construction Monitoring l}I Emergency Management LL M .' Public Safety/Event Management Homeland Security/Crime Prevention ",l *WMW �= Remote Facilities Monitoring F __T MADE IN THE 330 Nevada St., Newton, MA 02460 www.ivcco.com 617-467-3059 USA © 2018, Industrial Video & Control Co. The Industrial Video & Control Co. logo is a registered trademark of V84C Industrial Video & Control Co.. All other company names and products are trademarks or registered trademarks I N D U S T R I A L of their respective companies. All informatlnyrovided is subject to change without notice. 3/20/2018 VIDEO & CONTROL COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: PARKING LOT SWEEPING SERVICES 2024-2026 POLICY QUESTION: Should City Council accept the lowest responsive bid and authorize the contract for parking lot sweeping services for 2024-2026? COMMITTEE: PRHSPS MEETING DATE: October 10, 2023 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Autumn Gressett, Contract Administrator DEPT: Parks Attachments: 1. Staff Report 2. Parking Lot Sweeping Contract Options Considered: 1. Approve the proposed contract. 2. Do not approve the proposed contract and provide direction to staff. MAYOR'S RECOMMENDA,"ON: Option 1. MAYOR APPROVAL: DIRECTOR APPROVAL: n��ua8« COMMITTEE RECOMMENDATION: "I move to forward the proposed contract to the October 17, 2023, consent agenda for approval. " Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move approval of the proposed contract and authorize the Mayor to execute said contract. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED — 11/2019 RESOLUTION # 17 CITY OF FEDERAL WAY MEMORANDUM DATE: September 6, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: John Hutton, Parks Directorc9k SUBJECT: Parking Lot Sweeping Services 2024-2026 Financial Impacts: The cost to the City for Parking Lot Sweeping 2024-2026 will be $69,632.79 and was included within the approved budget under the Parks Department, 001-7100-331-576-80- 480. In accordance with the approved budget, this item is funded by General Fund. Backgrot!nd Information: Historically, the City of Federal Way has retained a contract with a parking lot cleaning service to maintain the cleanliness, safety, and appearance of our parking lot facilities. Due to the current six -year contract for these services expiring at the end of 2023, staff solicited proposals in August 2023 for future services. There were tWo responsive bidders, and Whirlwind Services, Inc. was the lowest responsive bidder. Staff is recommending entering into a three-year contract with Whirlwind Services that would allow the City to maintain the current standards and level of professionalism that the public expects. 18 Rev. 7/18 ® CITY OF CITY HALL ... Federal Way(253) 8th Avenue South Federal Way, VN/A 98003-8325 _ (253) 835-7000 vmw..64 oflederafwtay. com GOODS AND SERVICES AGREEMENT FOR PARKING LOT SWEEPING This Goods and Services Agreement ("Agreement") is made between the City of Federal Way, a Washington municipal corporation ("City"), and Whirlwind Services, Inc., dba Whirlwind Clean and Green, a Washington corporation ("Contractor"). The City and Contractor (together "Parties") are located and do business at the below addresses which shall be valid for any notice required under this Agreement: WHIRLWIND SERVICES, INC. dba WHIRLWIND CITY OF FEDERAL WAY: CLEAN AND GREEN Krissy Wagoner 6801 216th St SW Mountlake Terrace, WA 98043 425-697-4373 (telephone) kwagoner(a,wwcn .com The Parties agree as follows: George Richen 33325 8th Ave. S. Federal Way, WA 98003-6325 (253) 261-3963 (telephone) George.richen@cityoffederalway.com 1. TERM. The term of this Agreement shall commence upon the effective date of this Agreement, which shall be the date of mutual execution, and shall continue until the completion of the Work, but in any event no later than December 31, 2026 ("Term"). This Agreement may be extended for additional periods of time upon the mutual written agreement of the City and the Contractor. 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit "A," attached hereto and incorporated by this reference ("Work"), performed to the City's satisfaction, within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2.2 Warranties. The Contractor warrants that it has the requisite training, skill, and experience necessary to provide the Work and is appropriately accredited and licensed by all applicable agencies and governmental entities, including but not limited to obtaining a City of Federal Way business registration. The Contractor warrants it will provide services in a manner consistent with the accepted practices for other similar services within the Puget Sound region in effect at the time those services are performed. The Contractor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Contractor's representations to City. The Contractor shall, at its sole cost and expense, correct all Work performed which the City deems to have defects in workmanship and material discovered within one (1) year after the City's final acceptance of the Work. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code, Title 62A RCW. In the event any part of the goods are repaired, only original replacement parts shall be used; rebuilt or used parts are not acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time as determined by 1 GOODS AND SERVICES AGREEMENT -1 - 4/2023 CITY OF CITY HALL _. Fe d e ra 1 Way Feder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityoffederalway com the City, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 2.3 Time Documentation and Inspection. Work shall begin immediately upon the effective date of this Agreement. Work shall be subject, at all times, to observation and inspection by and with approval of the City, but the making (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in accordance with this Agreement, notwithstanding the City's knowledge of defective or non -complying performance, its substantiality or the ease of its discovery. 2.4 Clean Up. At any time ordered by the City and immediately after completion of the Work, the Contractor shall, at its own expense, clean up and remove all refuse and unused materials of any kind resulting from the Work. In the event the Contractor fails to perform the necessary clean up, the City may, but in no event is it obligated to, perform the necessary clean up and the costs thereof shall be immediately paid by the Contractor to the City and/or the City may deduct its costs from any remaining payments due to the Contractor. 3. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days' written notice at its address set forth on the signature block of this Agreement. The City may terminate this Agreement immediately if the Contractor fails to maintain required insurance policies, breaches confidentiality, or materially violates Section 12 and such may result in ineligibility for further City agreements. 4. COMPENSATION. 4.1 Amount. In return for the Work, the City shall pay the Contractor an amount not to exceed a maximum amount and according to a rate or method as delineated in Exhibit `B," attached hereto and incorporated by this reference. The Contractor agrees that any hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s) for the Term. Except as otherwise provided in Exhibit `B," the Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 4.2 Method of Payment. On a monthly basis, the Contractor shall submit a voucher or invoice in the form specified by the City, including a description of what Work have .been performed, the name of the personnel performing such Work, and any hourly labor charge rate for such personnel. The Contractor shall also submit a final bill upon completion of all Work. Payment shall be made on a monthly basis by the City only after the Work has been performed and within thirty (30) days after receipt and -approval by the appropriate City representative of the voucher or invoice. If the Work does not meet the requirements of this Agreement, the Contractor will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. 4.3 Defective or Unauthorized Work. If any goods, materials, or services provided under this Agreement are either defective, unauthorized, or otherwise do not meet the requirements of this Agreement, the Contractor will correct or modify the work to comply with the Agreement and the City reserves the right to withhold payment from the Contractor until the goods, materials, or services are acceptable to the City. If Contractor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Contractor. 20 GOODS AND SERVICES AGREEMENT - 2 - 4/2023 CITY OF CITY HALL Feder Fe d e ra I 1�1!'ay F8th Avenue South Federal Way, WA 98003-6325 �w f (253) 836-7000 wwwcityofledemtway.. com 4.4 Non -Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 4.5 Final Payment: Waiver of Claims. Contractor's acceptance of final payment shall constitute a waiver of any and all claims, except those previously and properly made and identified by Contractor as unsettled at the time request for final payment is made. 5. INDEMNIFICATION. 5.1 Contractor Indemnification. The Contractor agrees to release indemnify, defend, and hold the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or in connection with this Agreement or the performance of this Agreement, except for that portion of the claims caused by the City's sole negligence. 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 Contractor and the City, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. Contractor shall ensure that each sub -contractor shall agree to defend and indemnify the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders, partners, employees, agents, representatives, and sub- contractors harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 6. INSURANCE. The Contractor agrees to carry insurance for liability which may arise from or in connection 21 GOODS AND SERVICES AGREEMENT - 3 - 4/2023 CITY 4F A% ,�S� Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www cityofiederalmay. com with the performance of the services or work by the Contractor, their agents, representatives, employees or subcontractors for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 6.1. Minimum Limits. The Contractor agrees to carry as a minimum, the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury, bodily injury, death, property damage, products liability, advertising injury, and liability assumed under an insured contract with limits no less than $2,000,000 for each occurrence and $2,000,000 general aggregate. b. Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; C. Automobile liability insurance covering all owned, non -owned, hired and leased vehicles with minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 6.2. No Limit of Liability. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. The Contractor'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 Contractor's insurance and shall not contribute with it. 6.3. Additional Insured, Verification. The City shall be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit "C" and incorporated by this reference. At City's request, Contractor shall fiunish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. If Contractor's insurance policies are "claims made," Contractor shall be required to maintain tail coverage for a minimum period of three (3) years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. 7. CONFIDENTIALITY. All information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination. All records submitted by the City to the Contractor will be safeguarded by the Contractor. The Contractor will fully cooperate with the City in identifying, assembling, and providing records in case of any public records disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans, sketches, layouts, designs, design specifications, records, files, computer disks, magnetic media or material which maybe produced or modified by Contractor while performing the Work shall belong to the City upon delivery. The Contractor shall make such data, documents, and files available to the City and shall deliver all needed or contracted for work product upon the City's request. At the expiration or termination of this Agreement, all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. 9. BOOKS AND RECORDS. The Contractor agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain 22 GOODS AND SERVICES AGREEMENT - 4 - 4/2023 CITY of CITY HALL r� Way SAvenue South Federal Way, WA 98003003-6325 (253)835-7000. www.. cilyoftderal�vay. com such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement. 10. INDEPENDENT CONTRACTOR 1 EMPLOYEE CONDITIONS. 10.1 Indenendence. The Parties intend that the Contractor shall be an independent contractor and that the Contractor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. If the Contractor is a sole proprietorship or if this Agreement is with an individual, the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safe . Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose. Contractor shall comply with all applicable provisions of federal, state and municipal safety and health laws and codes, including without limitation, all OSHA/WISHA requirements, Safety and Health Standards for Construction Work (Chapter 296-155 WAC), General Safety and Health Standards (Chapter 296-24 W AC), and General Occupational Health Standards (Chapter 296-62 W AC). Contractor shall erect and properly maintain, at all times, all necessary guards, barricades, signals and other safeguards at all unsafe places at or near the site for the protection of its employees and the public, safe passageways at all road crossings, crosswalks, street intersections, post danger signs warning against known or unusual hazards and do all other things necessary to prevent accident or loss of any kind. Contractor shall protect from damage all water, sewer, gas, steam or ether pipes or conduits, and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work. The Contractor shall, at its own expense, secure and maintain a safe storage place for its materials and equipment and is solely responsible for the same. 10.3 Risk of Work. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. Even though Contractor is an independent contractor, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion. 11. CONFLICT OF INTEREST. It is recognized that Contractor may or will be performing professional services during the Term for other parties; however, such performance of other services shall not conflict with or interfere with Contractor's ability to perform the Services. Contractor agrees to resolve any such conflicts of interest in favor of the City. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or, will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EOUAL OPPORTUNITY EMPLOYER. In all services, programs, activities, hiring, and employment 23 GOODS AND SERVICES AGREEMENT - 5 - 4/2023 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-5325 (253) 835-7000 wmx dlyoffederalway. com made possible by or resulting from this Agreement or any subcontract, there shall be no discrimination by Contractor or its subcontractors of any level, or any of those entities' employees, agents, subcontractors, or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, religion, creed, national origin,, marital status, or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply to, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RCW, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non-discrimination. 13. GENERAL PROVISIONS. 13.1 interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or agreements, whether oral or written, shall be effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement, the terms of this Agreement shall prevail. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. Any provision of this Agreement that is declared invalid, inoperative, null and void, or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms of the Agreement, is hereby ratified as having been performed under the Agreement. No provision of this Agreement, including this provision, may be amended, waived, or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries. Neither the Contractor nor the City shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the other Party. If the non -assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. Subject to the foregoing, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal, state, local, and city laws including, without limitation, all City codes, ordinances, resolutions, regulations, rules, standards and policies, as now existing or hereafter amended, adopted, or made effective. If a violation of the City's Ethics Resolution No. 91-54, as amended, occurs as a result of the formation or performance of this Agreement, this Agreement may be rendered null and void, at the City's option. 13.4 Enforcement. Time is of the essence in this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Services is essential to the Contractor's performance of this Agreement. Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth above. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. Any remedies GOODS AND SERVICES AGREEMENT 2g - 4/2023 CITY OF CITY HALL' Fe Way 33325 8th Avenue South d le ra`��►VJ Federal Way, WA 98003-6325 _ y (253) 835-7000 KtKw.cayoffedeMA408y. com provided for under the terms of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the City at law, in equity or by statute. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. Failure or delay of the City to declare any breach or default immediately upon occurrence shall not waive such breach or default. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. This Agreement shall be made in, governed by, and interpreted in accordance with the laws of the State of Washington. If the Parties are unable to settle any dispute, difference or claim arising from this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall be by filing suit under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative process. If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction of the state and federal courts in King County, Washington and waives any objection that such courts are an inconvenient forum. If either Party brings any claim or lawsuit arising from this Agreement, each Party shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, however nothing in this paragraph shall be construed to limit the Parties' rights to indemnification under Section 5 of this Agreement. 13.5 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages. The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the "date ofmutual execution" hereof. [Signature page follows] 25 4/2023 GOODS AND SERVICES AGREEMENT - 7 - CITY Of! CITY HALL 33325 8th Avenue South Federal Way Federal Way, WA 98003-6325 �• (253)835-7000 vAvw crtyoffedwalway. com IN WITNESS, the Parties execute this Agreement below, effective the last date written below. CITY OF FEDERAL WAY: ATTEST: Jim Ferrell, Mayor Stephanie Courtney, CMC, City Clerk DATE: APPROVED AS TO FORM: J. Ryan Call, City Attorney WHIRLWIND SERVICES, INC. dba WHIRLWIND CLEAN AND GREEN: By: Printed Name: Title: DATE: STATE OF WASHINGTON ) ss. COUNTY OF ) On this day personally appeared before me . to me known to be the of Whirlwind Services, Inc. dba Whirlwind Clean and Green that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this day of 2023. Notary's signature Notary's printed name Notary Public in and for the State of Washington. My commission expires GOODS AND SERVICES AGREEMENT 29 - 4/2023 CITY OF CITY HALL . Federal Way33325 8tli Avenue South Federal Way, WA 98003-6325 (253) 835-7000 wj,vw cifyoffederaNvay com EXHIBIT A SERVICES The Contractor shall provide parking lot sweeping services for the City as provided in this Agreement and this Exhibit A. The following specifications are intended to cover the cleaning and sweeping operations of the various surface parking lots, entrances and plaza areas of the City's public parking facilities with routine frequency schedules as listed in Table 1 below. Table 1: Parking lot cleaning frequency schedule Location Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec BPA Trail Lot — 324th 1 1 1 1 1 1 BPA Trail Lot - 356th 1 1 1 1 1 1 Celebration — Main and lower lots 1 1 1 1 1 1 City Hall 1 1 1 1 1 1 1 1 1 2 2 1 City Hall North Lot 1 1 1 1 1 1 Dumas Bay Centre 1 1 1 1 Dumas Bay Sanctuary Park 1 1 1 1 1 1 Federal Way Community Center 1 1 1 1 French Lake Park 1 1 1 1 1 1 Lakota Park 1 1 1 1 1 1 Palisades Park 1 1 1 1 1 1 Panther Lake Trailhead 1 1 1 1 1 1 Performing Arts and Event Center 1 1 1 1 Sacajawea — Main and upper lots 1 1 1 1 1 1 Saghalie - upper lot only 1 1 1 1 1 1 Steel Lake Annex 1 1 1 1 1 1 Steel Lake Park 1 1 1 1 1 1 Town Square ParkEE 1 1 1 1 1 1 West Hylebos Wetlands 1 1 1 1 1 1 Each instance of cleaning provided in Table 1 shall constitute a complete cleaning, which shall include: a. Blowing, sweeping, vacuum, pick-up, and removal by whatever means necessary of all trash, debris, dirt, mud, and any other foreign material (except snow and ice) from the paved portions of each parking lot, entrance, and plaza. b. The standard for a complete cleaning shall be no visible evidence of said trash, debris, dirt, mud, or other foreign materials. in comers, associated curbs, and the respective portion of the completion of each cleaning. c. All materials removed shall be disposed of at a site designated or approved by the City. d. The Parks & Facilities Manager, Director, or other designated Parks Department representative shall be the final authority on whether standards have been met. 27 GOODS AND SERVICES AGREEMENT - 9 - 4/2023 CITY OF 3CITY332 HALL .- Fe d e ra I Way Feder Avenue South Federal Way, WA 98003-6326 (253) 835-7000 www.0yol%deralway com 2. The Contractor will furnish all labor, tools, specialized equipment, materials, and disposal of waste material generated by the work (disposed of per subsection l .c., above), unless other arrangements have been made with the Parks & Facilities Manager or Parks Department representative or appointed designee. 3. All fieldwork shall be performed under the supervision of a qualified employee. Laborers will be skilled working with equipment and cleaning products. 4. The Contractor will ensure its employees comply with all applicable City of Federal Way and Washington State laws, regulations, and practices with respect to work performed for the City of Federal Way. 5. The Contractor's personnel will conduct themselves in a professional manner at all times while performing the services under this contract. 6. The Parks & Facilities Manager or Parks Department representative or appointed designee will inspect work performed by the Contractor. In the event of work performance deficiencies, the Parks & Facilities Manager or Parks Department representative will promptly notify the Contractor. As part of the notification, the City may choose to require the Contractor to rectify the deficiency within 48 hours or withhold payment until the corrections are completed. Notification may be verbal or written. 7. Immediately report any damage, potential hazard, or non -life -threatening situations involving City property such as, but not limited to, broken water lines, vandalism, graffiti, etc., to the City of Federal Way Parks Department at (253) 835-6901. After-hours emergencies should be reported to the Police/Fire Communications Center by calling 911. Any after-hours emergencies shall also be reported to the Parks & Facilities Manager or Parks Department representative or appointed designee within 24 hours or the following business day, whichever is soonest. The Contractor shall immediately report any damage to City property or private property caused by the Contractor or Contractor's employees and, at Contractor's expense, will remedy any damage to public or private structures in a timely manner and as agreed to in writing with the City. 8. Hazardous conditions shall be immediately remedied or secured to prevent further damage and/or protect public from injury and shall be reported to Police/Fire Communications Center by calling 911 and the Parks Department notified as appropriate. It is the Contractor's responsibility to provide close supervision of operations and management of the work areas. 9. Incidents, altercations, or accidents involving the public shall be reported to the Contract Administrator within 24 hours. The Contract Administrator, at their discretion, may require a written report from the Contractor describing the incident or accident. As a part of the resulting Agreement from this RFP, the Contractor will agree to participate in any investigation resulting from any such incident. 10. Contractor will coordinate with the Parks Department when all work is to be performed. Routine work shall be planned for and performed at times when few to no vehicles will be present in the 28 GOODS AND SERVICES AGREEMENT - 10 - 4/2023 CITY of CITY HALL �� Feder Fe a ra Allay 8th Avenue South FederalWay, WA 98003-6325 (253) 835-7000 wvvwcrryoffeder'afkvoy.com parking lot. Blow around vehicles prior to clean. 11. All technicians, operators, and supervisors who will be on secured properties must be in a company identifiable uniform when performing work pursuant to this Agreement and must be able to pass a background check. 12. Managers and support personnel shall be available 24/7. 13. All company vehicles must bear signage, logos, or other clearly visible information identifying the Contractor's company when performing work under this Agreement. 29 GOODS AND SERVICES AGREEMENT - 11 - 4/2023 CITY OF Federal Way EXHIBIT B COMPENSATION CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 vvww-cityoffederaNvay com 1. Total Compensation: In return for the Services, the City shall pay the Contractor an amount not to exceed Sixty -Three Thousand Two Hundred Forty -Five and 04/100 Dollars ($63,245.04) and Washington State sales tax equal to Six Thousand Three Hundred Eighty -Seven and 75/100 Dollars ($6,387.75) for a total of Sixty -Nine Thousand Six Hiuldred Thirty -Two and 79/100 Dollars ($69,632.79). 2. Method of Compensation: Unit price plus sale tax In consideration of the Contractor performing the Services, the City agrees to pay the Contractor an amount, calculated on the basis of the per visit charge rate schedule for Contractor's personnel as shown below, plus Washington State Sales Tax. Lacatioru BP Lot - 324th Estimated Annual Visits 8 S 2024 Price Per Visit 1,02.92 2024 Estimated Annual Am,ou nt 923-36 BPa Trail Lot - 356th 8 $ 57.00 456.00 Celebration Park- m,ain and lower 10 10 $ 30835 $ 3,087-50 City Hall 16 S 197.92 3,166.72 � City Hall North Lot 8 $ 83.31 $ 666.4t Dumas Bay Centre. 6 $ 102.92 $ 617.52 DLImas Bay Sanctuary Park 8 $ 57.00 S 456.00 � Federal Way Community Center 8 $ 126.67 S 1.,013.36 French Lake Park 8 $ 116-55 $ 932.40 Lakota Park 8 $ 93-28 666.24 Palisades Park 8 $ 57-00 $ 456.00 IPanther Lake Trailhead 8 $ 57.00 $ 456.CC Performing arts. and Event Center 8 $ 126.67 $ 1,0 3.36 !Sacajawea - main and upper lots 8 $ 95.00 $ 760.00 .Saghalie Park - upper lot only 8 $ 88.68 $ 709.44 '.Steel Lake Annex. 8 $ 79.22 S 633-76 Steel Lake Park 10 $ 197.92 $ 1,979-20 Town Square Park 10 $ 74.09 $ 740-90 West Hylebos. Wetlands S $ 60.03 $ 490-24 additional Hourly,Service 10 $ 95.00 $ 950.00 WI hirlwind 20244 Subtotal $ 24,064AS GOODS AND SERVICES AGREEMENT - 12 - 4/2023 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federa[ Way, WA 98003-6325 (253) 835-7000 VVjVWCr[yoffederaafvvay corn 2025 2G25 - Estimated Estimated ,annual. Lacation Price Per Visiti Annuallr'i�it � Arnc�u:nt SPA Trail Lot - 324th 8 $ 108.06 $ 864.48' BPATraiI Lot - 356th 8 $ 59.95 $ 478.80 Celebration Park - main and lower io 10 32418 $ 3,241.80 City Hail 16 $ 207-81 $ 3,324.96 City., Hail North Lot 8 $ 97.47 $ 6;99.76 [pumas Bay Centre 6 $ 108.06 $ 648.36 Dumas Bay sanctuary Park 8 $ 59-95 $ 478.80 Federal Way Communibr Center 8 $ 133_00 $ 1£064.00 French Lake Park 8 $ 122.37 978.96 i La kota Park 8 87.44 $ 699.5 2 Pa I i.sa des Pa rk 8 $ 59_85 $ 47 8.80 Panther Lake Trailhead 8 $ 59-85 $ 478.80 Performing Arts and Event Center 8 $ 133.0+0 $ 1,064-00 Sacajawea - main and LIPPer lots S. $ 99_75 $ 798.00 Saghalie Park - upper lot only 8 $ 93.11 $ 744.88 ISteel Lake Annex 8 $ 83.18 $ 665.44 -Steel Lake Park 10 $ 207.18 $ 2,071-90 Town Square Park 10 $ 77.79 $ 777.90 West HyIeh-os Wetlands 8 $ 68.03 $ 504.24 Additional Hourly Service 10 I $ 99.75 $ 997.50 Whirlwind 2025 =Subtotal_ $_—_ ?1,060.80 31 GOODS AND SERVICES AGREEMENT - 13 - 4/2023 . CITY OFederal CITY HALL ■ � �� 33325 Sth Avenue South V{Y■ Federal Way, WA 98003-6325 (253) 835-7000 www. cityoffederalway cam y LocationPruce I ot-324th 7Tra Estimated Annual Visits 2026 Price Per Visit 113.46 2.026 Annual, Amount 907.68 ot - 356th 8 62-84 5432-72 Celebration Park - main and Iower I oi 10 34038 3,4433.8,0 LE ty Hall 16 218.20 3,491-20 City Hall North Lot 8 '91.94 734-72 Dumas Bay Centre 6 $ 113-46 5 680-76 Dumas Bay Sanctuary Park S 62-94 $ 502-72 Federal Way Community Center 8 139-55 S 1,117-20 French Lake Park S S 12S-46 $ 1,027.94 Lakota Park 8 $ 91.81 734.48 Palisades Park 8 $ 62.84 502-72 Panther Lake TraiIhead 8 62.84 502-72 Performing Arts. and Event Center 8 1319_65 S 1f1.17.20 Satafawea - main and upper lots, 8 104.73 $ 937,94 Sagh,aIie Park- upper lot only 8 $ '97_76 782.08 Steel Lake Annex S $ 87.33 698-64 Steel Lake Park 10 $ 21S-20 2,,162.00 Town -Square Park 10 81..67 $ 916.70 Pest Hylebos Wetlands 8 66.19 S 520-44 Additional Hourly Service 10 $ 104.73 1,047-30 Wht`rlwr nd 202.6 :Subtotal $ 22,119.76 32 GOODS AND SERVICES AGREEMENT - 14 - 4/2023 CITY OF :.. Federal way EXHIBIT C MAPS CITY HALL 33325 8th Avenue South Federal Way. VVA 98003-6325 (253) 835-7000 vmw Myoffeder'llway. com IF D F�, ,. .rr ti .t �s - f r j% _ __•-K ♦ r ir w -N' -+ ry L * -y - - 33 GOODS AND SERVICES AGREEMENT - 15 - 4/2023 CITY OF �. Federal .117 . new �' I . Y • .: ; r' r 11 CITY HALL ■ w ■�� 33325 8t1� Avenue South ■Y■■Y■ Federal Way. WA 98003-6325 (253) 835-7000 v,ww cityoffederalway. com f for, Pip I it • r1" �t:.'�� ` • ;,� +err r �,;_ r� � 4 Poll op tj �r . l• i r {CIF, 34 GOODS AND SERVICES AGREEMENT - 16 - 4/2023 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way. VdA 98003-6325 (253j835-7000 „ invcrtAlotw9r'illwaycon) 35 GOODS AND SERVICES AGREEMENT - 17 - 4/2023 CITY OF CITY HALL '4!! Feder l Avenue South Federal Way. 980D3-6325 Fe cl ra 11l1lay (253j835-7000 . ,'•raU:Cilyo ffac�ere�i Un�y com ' }04 j :. .. rAdl AV 41 'tj rfr .�;'�• 36 GOODS AND SERVICES AGREEMENT - 18 - 4/2023 CITY OF CITY HALL sh6,Federal Way Feder 8th y, WA South Federal Way, WA 98003-6325 � y (253) 835-7000 WW Wyoffederafway. com 4 '�; AN 411 rro Ael IL it `� ti GOODS AND SERVICES AGREEMENT 37 -19- 4/2023 CITY OF CITY HALL �,� m ra l Way8t1� Avenue South Federal Way, VVA 98003-6325 (253) 835-7000 ww�v.citynf sderohtuy com V - t A 64 .� 1! 1. r • � L r • �,f,� _r � � -■6 � T a 1 •� rr ■�77� � • r, V� •s i r .�� . r Nw � F ■ r e4 1 r 4 a 1'I N f • �r e 7• a7 i� � � r - 39 GOODS AND SERVICES AGREEMENT - 21 - 4/2023 CITY OF Federal CITY HALL ■ � ■�� 33325 8th Avenue South Way Federal Way, WA 98003-6325 (253) 835-7000 www_cilyoffedef -�ilisny com 40 GOODS AND SERVICES AGREEMENT - 22 - 4/2023 CITY OF a' FedeWay f CITY HALL 33325 ath Avenue South Federal Wray. VA%A 98003-6325 (253'J 835-7000 y;'vYI:V C;!y2) f� B�EI"� 14Vc"7}/. C0177 -r.. ar�ae�ee:arc-�st�irorr+,ar�`:,�a�.4��•3§� Q - GOODS AND SERVICES AGREEMENT 41 —23- 4/2023 Am 0 �Frdnch` Lake 1st .7 37'S31 Ave law ..... ..... . Mal OL flo ilk Goo -An, 04 "ej "Coll ectiloh'sfte. I N40 CIiY OF L Federal Way CITY HALL 33325 8th Avenue South Federal Way. WA 98003-6325 (253) $35-7000 anvsv C11 yoffedefal way con] t; GOODS AND SERVICES AGREEMENT 43 - 25 - 4/2023 CIT � Federal Way CITY HALL 33325 Sth Avenue South Federal Way, WA 98003-6325 (253) 835-7000 m%v cityoffedernlaW com 44 GOODS AND SERVICES AGREEMENT - 26 - 4/2023 CITY of CITY HALL Fe d e ra l Way8th Avenue South Federal Way, WA 98003-6325 Feder $35-7000 wwwzc►tyoffederillway com 1• � L.°� a., t y W '• - 1 wry •'S. " ♦.. - �.,~,-Ir�7 •may �• ri ��, � �i= ..._ 1, j- i1 t''Lie.�' r w,� � '� }} 45 GOODS AND SERVICES AGREEMENT - 27 - 4/2023 WRY r _. •SFr `- e rf �r�m I Aii s n d; Ede n eft r . 1510 Pete Van Reichba Vtfay S_ `. i JAL r ' al;. CITY OF r Federal Way CITY HALL 33325 8th Avenue South Federal Way, 1NA 98003-6325 (253)835-7000 vAvav c�fy3ffederafway con) 47 GOODS AND SERVICES AGREEMENT - 29 - 4/2023 T CITY OF CITY HALL Federal Way Feder Avenue South Federal Way, 1+•VA 98003-6325 (253) 835-7000 s. vvw crfyoffederalway corn 4 VjV r r� � c o a ✓<F . -- I koil TaTo Ar IV ty ,d +ry r :,• m GOODS AND SERVICES AGREEMENT - 30 - 4/2023 w St llak� e g., _ R ] • ' tHP. 1C �`SQGI l ,'�" ram' '� '�' ��`�•+,• � �., I •� � • -.7t.. "y�•s �,•x -. .-ter ►,• � • � i'M1 r I � � � + fir R", r . F, � ��I� � � NIS, .�►�',, ". .. f f �...�_ . .- 1.� • r • - •� .- T . _ - . •3R-. CITY OF Federal Way 'f 1 q 3'ti .�_ _.--� ter"' .. „•,�.`�'� I 'Z•�7'-r ;•i ;�'-� ate. t E I 41 GOODS AND SERVICES AGREEMENT 50 -32- CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www_cr[yoffederafway. com 4/2023 CITY of . , Federal Way CITY HALL 33325 8th Avenue South Federal Way, VVA 98003-6325 (253) 835-7000 yvrwv, cjtyoffederajWDyCom 51 GOODS AND SERVICES AGREEMENT - 33 - 4/2023 CITY of Federal way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 vAvvv.cr[yoffeder t1sv�iycviri GOODS AND SERVICES AGREEMENT 52 -34- 4/2023 cfrY OF CITY HALL &h,Federal � �� Way Feder l Avenue South ■Yl}Y■ Federal Way, WA 98003-6325 (253) 635-7000 wwwerryaffederahv,)y. com EXHIBIT C CERTIFICATE OF INSURANCE 53 GOODS AND SERVICES AGREEMENT - 35 - 4/2023 CITE' OF Federal 'tea Centered on Opp®rtur'OC. *V This page was intenti®naiiy left Wank. 54 COUNCIL MEETING DATE: October 17, 2023 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: PERFORMING ARTS AND EVENT CENTER VENUE MANAGEMENT CONTRACT POLICY QUESTION: Should the City Council authorize staff to execute a renewed contract with Global Spectrum, L.P. for venue management of the Federal Way Performing Arts and Events Center? COMMITTEE: PRHSPS CATEGORY: Consent Ordinance City Council Business ❑ Resolution STAFF REPORT BY: Autumn Gressett Attachments: 1. Staff Report 2. PAEC Venue Management Contract MEETING DATE: October 10, 2023 ❑ Public Hearing ❑ Other DEPT: Parks Options Considered: 1. Approve the proposed agreement and authorize staff to execute. 2. Do not approve proposed agreement and provide direction to staff. MAYOR'S RECOMMENDATION: Option 1. MAYOR APPROVAL: I� I9) DIRECTOR APPROVAL: !a ;Iac cam in %nunC irD cri _ 1� initiaVDa a Initiall{]a!e µV ]1� COMMITTEE RECOMMENDATION: I move to forward the proposed Global Spectrum, L.P. agreement to the October 17, 2023 agenda for approval. bws► �„�.SS Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move approval of the proposed Global Spectrum, L.P agreement and authorize the Mayor to sign said agreement. " (BELOW TO BE COMPLETED BY CITY CLERK'S O,F FICE COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED - 4/2019 RESOLUTION # 55 CITY OF FEDERAL WAY MEMORANDUM DATE: October 10, 2023 TO: City Council Members VIA: Jim Ferrell, Mayor FROM: John Hutton, Parks Director SUBJECT: PAEC Venue Management- Contract Financial Impacts: The cost to the City for PAEC Venue Management will be $75,000 annually and was included within the approved budget under the Parks Department, 115 Fund. In accordance with the approved budget, this item is funded by the General Fund. Background Information: In June 2018, the City formalized a venue management agreement with Global Spectrum, L.P. (Global Spectrum) for comprehensive oversight and management of the operations at the Federal Way Performing Arts and Event Center (PAEC). Over the course of the ensuing five-year period, Global Spectrum has worked collaboratively with the City and consistently demonstrated its proficiency in managing the PAEC by successfully reducing the overall City subsidy, increasing ticket sales, diversifying and enhancing the quality of bookings and productions, facilitating expanded accessibility, and navigating a venue closure while still finding creative ways to use the facility and bring in revenue during the global COVID pandemic. Based upon the successful track record of Global Spectrum at the PAEC, staff recommends that City renew Global Spectrum's contract for a ten year term. In consideration for this contract term, Global Spectrum will make a $200,000 contribution to the City which may be used for any purpose at the City's discretion, so long as the City agrees to give due consideration to using' the contribution to develop an event fund geared toward attracting events to the Facility. In accordance with the Qualitative Performance Incentive, and consistent with feedback from the City Council, the following five performance metrics are proposed to be added to the agreement to assist the City in its annual evaluation of Global Spectrum's performance: 56 Rev. 7/18 1. Revenue Generation Metric. Each eligible to earn up to $500 a. Increase F&B Rev YOY by 2.5% b. Increase Theater Rental Rev YOY by 2.5% c. Increase Event Space Rental Rev YOY by 2.5% d. Increase Ticket Rev YOY by 2.5% 2. Attendance Metric. Eligible to earn $2,000 a. Increase Venue Attendance by 5% 2024 and 2.5% every year after 3. Usage Days Metric. Eligible to earn $2,000 a. Increase Venue Usage Days by 2.5% every year (includes all contractual usage days including rehearsals, setup and event day) 4. Host Free Community Events (paid for by local sponsorships acquired by Manager). Each event is worth $400, with a maximum benefit of $2,000 a. 5 annually in 2024, 2025 and 2026 (minimum 1 per quarter) b. Increase by 1 each year starting in 2027 5. Types of Events Metric. Each eligible to earn $500, with a maximum benefit of $2,000 a. Weddings — minimum 4 annually b. Banquets/meetings/conferences — minimum 50 annually c. Non-profit —minimum 10 annually d. Arts4youth — minimum 6 annually Based upon the successful track record of Global Spectrum, which encompassed many substantial achievements, staff is confident in the recommendation for ongoing collaboration for venue management services at the PAEC. 57 Rev. 7/18 CITY OF CITY HALL F� ra l Way33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 wmv.cayoffederaMoy.. com MANAGEMENT AGREEMENT FOR PERFORMING ARTS AND EVENTS CENTER (PAEC) This Management Agreement is entered into on 2023 and made effective as of January 1, 2024 ("Effective Date"), by and between'the City of Federal Way, Washington, a Washington State municipal corporation ("City"), and Global Spectrum, LP, a Delaware limited partnership ("Manager"). RECITALS WHEREAS, City owns the Performing Arts and Events Center of Federal Way ("PAEC"), a 716 seat performing arts center, approximately 8,400 square feet event space, kitchen, and associated office space (the "Facility"), located in Federal Way; Washington; and WHEREAS, the City has the right and authority to engage Manager to manage and operate the Facility; and WHEREAS, the City desires to engage Manager to manage and operate the Facility on behalf and for the benefit of the City, and Manager desires to accept such engagement, pursuant to the terms and conditions contained herein. NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS Section 1.1. Definitions. For purposes of this Agreement, the following terms have the meanings referred to in this Section: Affiliate: A person or company that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified person or company. Capital Expenditures: All expenditures for building additions, alterations, repairs or improvements and for purchases of additional or replacement furniture, machinery, or equipment, where the cost of such expenditure is greater than $5,000 and the depreciable life of the applicable item is, according to generally accepted accounting principles, in excess of five (5) years. Commercial Rights: Naming rights, pouring rights, advertising, sponsorships, the branding of food and beverage products for resale, premium seating (including suites, club seats and party suites), and memorial gifts at or with respect to the Facility. Contribution: shall have the meaning given to such term in Section 11.3 herein. CPI: The "Consumer Price Index" for the local Federal Way, Washington area, as published by the United States Department of Labor, Bureau of Labor Statistics or such other successor or similar index. 58 4/2023 MANAGEMENT SERVICES AGREEMENT - 1 - CITY OF �. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 �Vww cityoffederalway. com Effective Date: shall have the meaning given to such term in the opening paragraph of this Agreement. Emergency Repair: The repair of a condition which, if not performed immediately, creates an imminent danger to persons or property and/or an unsafe condition at one or both of the Facility threatening persons or property. Event Account: A separate interest -bearing account in the name of the Manager and under the Manager's Federal ID number in a local qualified public depository, where advance ticket sale revenue is deposited. by Manager. Event of Force Majeure: An act of God, fire, earthquake, hurricane, flood, riot, civil commotion, terrorist act, terrorist threat, storm, washout, wind, lightning, landslide, explosion, epidemic, inability to obtain materials or supplies, accident to machinery or equipment, any law, ordinance, rule, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, hostilities or war, a labor dispute which results in a strike or work stoppage affecting the Facility or services described in this Agreement, or any other cause or occurrence outside the reasonable control of the party claiming an inability to perform and which by the exercise of due diligence could not be reasonably prevented or overcome. Facility: shall have the meaning given to such term in the Recitals to this Agreement, and shall be deemed to include the entire PAEC (theater and event spaces), including but not limited to, as applicable, the seating areas, dressing rooms, meeting rooms, box office, common areas, kitchen areas, lobby areas, executive and other offices, storage and utility facilities, the entrances, ground, sidewalks and parking areas immediately surrounding the Facility, and outdoor areas, all as specifically identified on Schedule 1 hereto. FF&E: Furniture, fixtures, and equipment to be procured for use at the Facility. Fixed Management Fee: The fixed monthly fee the City shall pay to Manager under this Agreement, as more fully described in Section 3.1 of this Agreement. General Manager: The employee of Manager acting as the full-time on -site general manager of the Facility. Incentive Fee: The contingent fee the City shall pay to Manager under this Agreement, if earned, as more fully described in Section 3.2 below. Initial Term: "Term" shall have the meaning given in Section 4.1 of this Agreement. Laws: Federal, state, local and municipal laws, statutes, rules, regulations and ordinances. Management -Level Employees: The General Manager, Assistant General Manager, Business Manager, and Food and -Beverage Manager (or employees with different titles performing similar functions), and any department head employed by Manager to perform services at the Facility (including, if applicable, employees performing the function of the Director of Operations, Director of Sales and Marketing, Director of Security, Finance Director, and Event Manager). Marketing Plan: A plan for the advertising and promotion of the Facility and Facility events, which may contain but not be limited to the following elements, as applicable: (i) market research, (ii) market position, (iii) 59 4/2023 MANAGEMENT SERVICES AGREEMENT - 2 - 4 CITY OF ,sS,� Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) $35-7000 MVWCf(Wffed6r1hVay.. com marketing objectives, (iv) marketing strategies, (v) booking priorities, (vi) targeted events - local, regional, national and international, (vii) targeted meetings, conventions and trade shows, (viii) industry advertising campaign, (ix) internal and external support staff, (x) advertising opportunities at the local, regional and national level, (xi) attendance at various trade shows, conventions and seminars, (xii) incentive formulas for multiple event presenters, (xiii) suite and club seat sales, (xiv) merchandising and retail, (xv) food and beverage, (xvi) a plan for the sale of commercial rights, including without limitation naming rights, pouring rights, advertising signage, sponsorships (including event sponsorships), branding of food and beverage products for resale, premium seating (including but not limited to suites and club seats), and memorial gifts, (xvii) a plan regarding national, regional.and local public relations and media relations, (xviii) development of an in-house advertising agency, and (xix) policies regarding the use of trade/barter. Net Operating Income/Loss: shall mean the amount by which Revenue at the Facility exceeds Operating Expenses at the Facility, resulting in Net Operating Income, or by which Operating Expenses at the Facility exceeds Revenue at the Facility, resulting in Net Operating Loss, for the period in question. Net Operating Income/Loss Benchmark: shall be mutually agreed onannually, prior to December 1, and confirmed in writing. If for any reason the Parties are unable to mutually agree on such figure prior to such date, the Parties shall submit such determination to a mutually agreed upon third -parry arbitrator who shall be an independent industry expert, without any conflicts of interest. City and Manager shall each submit to such third parry their proposed figure for the Net Operating Income/Loss Benchmark, and such third Parties' determination shall be final and binding on the City and Manager, provided that such determination shall be made consistent with the terms of this Agreement, and shall not be outside of the range of the figures submitted by the City and Manager. The cost of such third -party arbitrator shall be shared equally between the Parties. Operating Account: A separate interest -bearing account in the name of the Manager and under the Manager's Federal ID number in a local qualified public depository, where Revenue is deposited and from which Operating Expenses are paid. Operating Budget: A line item budget for the Facility that includes a projection of Revenues and Operating Expenses, presented on a monthly and annual basis. Operating Expenses: All expenses incurred by Manager in connection with its operation, promotion, maintenance and management of the Facility, including but not limited to the following: (i) employee payroll, benefits, relocation costs, severance costs, bonus and related costs, (ii) cost of operating supplies, including general office supplies, (iii) advertising, marketing, group sales, and public relations costs, (iv) cleaning and landscaping expenses, (v) data processing costs, (vi) dues, subscriptions and membership costs, (vii) the Fixed Management Fee, (viii) printing and stationary costs, (ix) postage and freight costs, (x) equipment rental costs, (xi) minor repairs, maintenance, and equipment servicing, not including expenses relating to performing capital improvements or repairs, (xii) security expenses, (xiii) telephone and communication charges, (xiv) travel and entertainment expenses of Manager employees, (xv) cost of employee uniforms and identification, (xvi) exterminator, snow and trash removal costs, if applicable (xvii) computer, software, hardware and training costs, (xviii) parking expenses, (xix) utility expenses, (xx) office expenses, (xxi) ) audit and accounting fees, (xxii) legal fees, (xxiii) all bond and insurance costs, including but not limited to personal property, liability, and worker's compensation insurance, (xxiv) commissions and all other fees payable to third parties; (xxv) cost of complying with any Laws, (xxvi) costs incurred by Manager to settle or defend any claims asserted against Manager arising out of its operations at the Facility on behalf of City; (xxvii) amount of any deductible or self -insured retention under insurance policies; (xxviii) costs incurred under Service Contracts and other agreements relating to Facility' operations, (xxix) all costs MANAGEMENT SERVICES AGREEMENT - 3 - 60 4/2023 CITY OF CITY HALL 4% F e ra �1I 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 K441W d1Y0fteder1Nway. cum relating to provision of the Food and Beverage Services, including labor, cost of goods, and cost of permits/licenses; and (xxx) Taxes. The term "Operating Expenses" does not include debt service on the Facility, Capital Expenditures, property taxes, insurance on the Facility of contents within the Facility owned by City, or the Incentive Fee, all of which costs shall be borne by the City. Operating Year: Each twelve (12) month period during the Term, commencing on January 1 and ending on the following December 3 L Operations Manual: Document to be developed by Manager that shall contain terms regarding the management and operation of the Facility, including detailed policies and procedures to be implemented in operating the Facility, as agreed upon by both the City and the Manager. Revenue: All revenues generated by Manager's operation of the Facility, including but not limited to event ticket proceeds income, rental and license fee income, merchandise income, gross food and beverage income, gross income from any sale of Commercial Rights, gross service income, equipment rental fees, box office income, and miscellaneous operating income, but shall not include event ticket proceeds held by Manager in trust for a third party and paid to such third party. Revenue Generating Contracts: Vendor, concessions and merchandising agreements, user/rental agreements, booking commitments, licenses, and all other contracts or agreements generating revenue for the Facility and entered into in the ordinary course of operating the Facility. Service Contracts: Agreements for services to be provided in connection with the operation of the Facility, including without limitation agreements for ticketing, web development and maintenance, computer support services, FF&E purchasing services, engineering services, electricity, steam, gas, fuel, general maintenance, HVAC maintenance, telephone, staffing personnel including guards, ushers and ticket -takers, extermination, elevators, stage equipment, fire control panel and other safety equipment, snow removal, and other services that are deemed by Manager to be either necessary or useful in operating the Facility. Taxes: Any and all governmental assessments, franchise fees, excises, license and permit fees, levies, charges and taxes, of every kind and nature whatsoever, which at any time during the Term may be assessed, levied, or imposed on, or become due and payable out of or in respect of, (i) activities conducted on behalf of the City at the Facility, including without limitation the sale of concessions, the sale oftickets, and the performance ofevents (such as any applicable sales and/or admissions taxes, use taxes, excise taxes, occupancy taxes, employment taxes, and withholding taxes), or (ii) any payments received from any holders of a leasehold interest or license in or to the Facility, from any guests, or from any others using or occupying all or any part of the Facility. Term: shall have the meaning ascribed to such term in Section 4.1 of this Agreement. 2. SCOPE OF SERVICES Section 2.1 En a ement. (a) City hereby engages Manager during the Term to act as the sole and exclusive manager and operator of the Facility, subject to and as more fully described in this Agreement. 61 MANAGEMENT SERVICES AGREEMENT - 4 - 4/2023 Carr OF CITY HALL Fe d e ra l Allay Feder l Avenue South Federal Way, WA 98003-6325 (253) 835-7000 wwwcityoflederalway com (b) Manager hereby accepts such engagement, and shall perform the services described herein, subject to the limitations expressly set forth in this Agreement and in the Operations Manual. Section 2.2 Limitations on Manager's Duties. Manager's obligations under this Agreement are contingent upon and subject to the City making available, in a timely fashion, the funds budgeted for and/or reasonably required by Manager to carry out such obligations during the Term. Manager shall not be considered to be in breach or default of this Agreement, and shall have no liability to the City or any other party, in the event Manager does not perform any of its obligations hereunder due to failure by the City to timely provide such funds. Section 2.3 Standard of Care. Subject to the limitations of the Operating Budget, Manager shall exercise reasonable commercial, good faith efforts in managing and operating the Facility so as to minimize Operating Expenses and maximize Operating Revenues, provided that Manager shall be permitted to book events at no or reduced rental fees as required and approved by the City pursuant to the terms of Section 5.4. Section 2.4 Dom. Manager shall owe to the City a duty to perform its obligations under this pursuant to the terms in Exhibit A and to conduct the management and operation of the Facility at all times with integrity and good faith and in a manner that is in the best interests of the Facility and the City and consistent with the terms of this Agreement. Manager shall not engage in any act that not within the scope of its authority under this Agreement, that is not in good faith or from which the Manager derives an improper personal benefit. 3. COMPENSATION Section 3.1 Fixed Mana gment Fee. In consideration of Manager's performance of its services hereunder, City shall pay Manager a Fixed Management Fee. Beginning on the Effective Date and continuing through December 31, 2033, the Fixed Management Fee shall be Six Thousand Two Hundred Fifty Dollars ($6,250.00) per month. The Fixed Management Fee shall be payable to Manager in advance, beginning on the Effective Date, and payable on the first (1 st) day of each month thereafter (prorated as necessary for any partial months). Manager shall be entitled to pay itself such amount from the Operating Account. Section 3.2 Incentive Fee. In addition to the Fixed Management Fee, Manager shall be entitled to receive an Incentive Fee each full or partial Operating Year of the Term. The Incentive Fee shall be comprised of a qualitative component as described in subpart (a) below ("Qualitative Component") and a quantitative component as described in subpart (b) below ("Quantitative Component"). (a) Qualitative Com anent. Manager shall be eligible to earn up to ten thousand dollars ($10,000) in each Operating Year (pro -rated for any Operating Years of less than a full 12 months based on the actual number of days elapsed in such Operating Year out of 365). The Qualitative Component shall be determined by the City, in its reasonable and good faith discretion based on its evaluation of Manager's performance each Operating Year in each of the following five (5) performance areas: i. Revenue Generation Metric. Each eligible to earn up to $500 1. Increase F&B Rev YOY by 2.5% 2. Increase Theater Rental Rev YOY by 2.5% 3. Increase Event Space Rental Rev YOY by 2.5% 4. Increase Ticket Rev YOY by 2.5% ii. Attendance Metric. Eligible to earn $2,000 62 4/2023 MANAGEMENT SERVICES AGREEMENT - 5 - &L CITY OF ,ft �N%L Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 VA%V Grtyoifederafway com 1. Increase Venue Attendance by 5% 2024 and 2.5% every year after iii. Usage Days Metric. Eligible to earn $2,000 1. Increase Venue Usage Days by 2.5% every year (includes all contractual usage days including rehearsals, setup and event day) iv. Host Free Community Events (paid for by local sponsorships acquired by Manager). Each event is worth $400, with a maximum benefit of $2,000 1. 5 annually in 2024, 2025 and 2026 (minimum 1 per quarter) 2. Increase by 1 each year starting in 2027 v. Types of Events Metric. Each eligible to earn $500, with a maximum benefit of $2,000 1. Weddings — minimum 4 annually 2. Banquets/meetings/conferences — minimum 50 annually 3. Non-profit —minimum 10 annually 4. Arts4youth — minimum 6 annually (b) Quantitative Com anent. Manager shall be paid twenty percent (20%) of the amount by which the actual Net Operating Income/Loss in each Operating Year exceeds the Net Operating Income/Loss mutually agreed upon Benchmark. For any Operating Years of less than a full 12-months, the Net Operating Income/Loss Benchmark shall be prorated based on the actual number of days elapsed in such Operating Year out of 365. There shall be no cap or maximum limit on the amount of the Quantitative Fee earnable by Manager. The mutually agreed upon Benchmark shall be determined during each Biennium budget. The Incentive Fee earned by Manager shall be paid to Manager no later than one -hundred eighty (180) days following the end of each Operating Year. Section 3.3 Commercial Rights Fee. In addition to the other fees due Manager hereunder, the City shall pay Manager fifteen percent (15%) of the Revenue from Commercial Rights ("Commercial Rights Fee"), as set forth below. For the sake of clarity, the Parties acknowledge that the Commercial Rights Fee shall be paid on all gross revenue from the sale of advertising signage, sponsorships, naming/title rights, sub-naming/title rights, pouring rights, branding rights, and other Commercial Rights at the Facility. For purposes of this paragraph, Revenue shall include trade/barter, with such trade/barter valued at its retail price in an arms -length transaction. The Commercial Rights Fee shall be paid for the full duration of all contracts for such Commercial Rights, including any period that extends after the end of this Agreement. Notwithstanding the foregoing, the Commercial Rights Fee shall not be paid on Revenue from Commercial Rights secured prior to the Effective Date. Payments due under this paragraph shall be made to Manager on an annual basis, within sixty (60) days of the end of each Operating Year, with respect to Revenue received in that year from the applicable Commercial Rights contracts. The provisions of this paragraph shall survive expiration or termination of this Agreement, and such settlements shall continue on an annual basis following the end of the term with respect to Revenue from Commercial Rights received in such years until such time as all Commercial Rights Commissions due Manager under this paragraph are fully paid. Manager shall engage one (1) person to serve as an on -site sales person, the costs of whom shall be considered an Operating Expense of the Facility. Section 3.4 Naming Rights. In addition to the other fees due Manager hereunder, the City shall pay Manager twenty percent (20%) of the Revenue from Naming Rights ("Naming Rights Fee"), as set forth below. For the sake of clarity, the Parties acknowledge that the Naming Rights Fee shall be paid on all gross revenue from the sale of naming/title rights and sub-naming/title rights at the Facility. For purposes of this paragraph, Revenue shall not include trade/barter, with such trade/barter valued at its retail price in an arms -length transaction. The Naming Rights Fee shall be paid for the full duration of all contracts for such Naming Rights, including any period that extends after the end of this Agreement. Notwithstanding the foregoing, the Naming Rights Fee shall not be paid on MANAGEMENT SERVICES AGREEMENT - 6 - 4/2023 CITY OF Federal ay CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www. cityoffeder-al�vay. corn Revenue from Naming Rights secured prior to the Effective Date and/or solely secured by the City. Payments due under this paragraph shall be made to Manager on an annual basis, within one -hundred eighty (180) days of the end of each Operating Year, with respect to Revenue received in that year from the applicable Naming Rights contracts. The provisions of this paragraph shall survive expiration or termination of this Agreement, and such settlements shall continue on an annual basis following the end of the term with respect to Revenue from Naming Rights received in such years until such time as all Naming Rights Commissions due Manager under this paragraph are fully paid. Section 3.5 Late Payments. Manager shall have the right to assess interest on any payments of the fees described in this Section that are not made when due. Such interest shall accrue at the rate of twelve percent (12%) per annum. 4. TERM; TERMINATION Section 4.1 Term. The initial term of this Agreement (the "Initial Term") shall begin on the Effective Date, and, unless sooner terminated pursuant to the provisions of Section 4.2 below, shall expire on December 31, 2033. Following the Initial Term, the City may extend this Agreement for an additional five (5) years, to end on December 31, 2038, by providing written notice of such extension to Manager no later than August 31, 2033. The Initial Term plus any such extension periods is referred to as the "Term" hereunder. Section 4.2 Termination. This Agreement may be terminated: (a) by either party upon thirty (30) days written notice, if the other party fails to perform or comply with any of the material terms, covenants, agreements or conditions hereof, and such failure is not cured during such thirty (3 0) day notification period, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period, then a longer period of time shall be afforded to cure such breach, up to a total of ninety (90) days, provided that the party in default is diligently seeking a cure and the non -defaulting party is not irreparably harmed by the extension of the cure period; or (b) by either party immediately by written notice upon the other party being judged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of the other party shall be appointed and shall not be discharged within one hundred twenty (120) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition in bankruptcy or insolvency, or shall apply for bankruptcy under the bankruptcy or insolvency Laws now in force or hereinafter enacted, Federal, State or otherwise, or if such petition shall be filed against either party and shall not be dismissed within one hundred twenty (120) days after such filing. Section 4.3 Effect of Expiration or Termination (a) Upon expiration or termination of this Agreement, the City shall reimburse Manager for any actual ordinary and necessary expenses incurred by Manager in withdrawing from the provision of services hereunder following such termination. Such ordinary and necessary expenses shall include costs associated with (i) severance pay, not to exceed three (3) months, for each of Manager's Management -Level Employees who are not retained by Manager following termination of this Agreement; (ii) reasonable household relocation expenses for Management -Level Employees at the Facility who are retained by Manager following termination to work at another Manager -managed Facility, but only to the extent any of such individuals had previously relocated to the Facility (or its surrounding areas) in connection with this Agreement; and (iii) other reasonable costs actually incurred by MANAGEMENT SERVICES AGREEMENT - 7 - 64 4/2023 CITY OF CITY HALL 33325 8th Avenue South � FedFederal Way 253)Federa[ Way, WA 98003-6325 eral f.+� {253} 835-7D40 wvwv, crtyuffederalway. com Manager in withdrawing from the provision of services hereunder, such as those incurred in connection with the termination and/or assignment of Service Contracts, Revenue Generating Contracts, or other contracts or leases entered into by Manager pursuant to this Agreement. The City's payment of such expenses will occur only after Manager has provided reasonable evidence of the incurrence of such expenses. (b) Upon expiration or termination or this Agreement, the following shall also apply: (i) Manager shall promptly discontinue the performance of all services hereunder; (ii) City shall promptly pay Manager all fees due Manager up to the date of termination or expiration (subject to proration if the Term ends other than at the end of the Operating Year); (iii) the City shall pay to Manager all Operating Expenses incurred by Manager through the end of the Term that have not previously been paid, including costs of accrued but unused vacation time and other end of employment payments due to Manager's employees whose employment is being terminated Manager; (iv) Manager shall make available to the City all data, electronic files, documents, procedures, reports, estimates, summaries, and other such information and materials with respect to the Facility as may have been accumulated by Manager in performing its obligations hereunder, whether completed or in ,process; and (iv) without any further action on part of Manager or City, the City shall, or shall cause the successor Facility manager to, assume all obligations arising after the date of such termination or expiration, under any Service Contracts, Revenue Generating Contracts, booking commitments and any other Facility agreements entered into by Manager in furtherance of its duties hereunder. Any obligations of the Parties that are specifically intended to survive expiration or termination of this Agreement shall survive expiration or termination hereof. 5. OWNERSHIP; USE OF THE FACILITY Section 5.1 0 rship of Facility, Data. Equipment and Materials. The City will at all times retain ownership of the Facility, including but not limited to real estate, technical equipment, furniture, displays, fixtures, and similar property, including improvements made during the Term. Any data, equipment or materials famished by the City to Manager or acquired by Manager as an Operating Expense shall remain the property of the City, and shall be returned to the City when no longer needed by Manager to perform under this Agreement. Notwithstanding the above, City shall not have the right to use any third -party software licensed by Manager for general use by Manager at the Facility and other facilities managed by Manager, the licensing fee for which is proportionately allocated and charged to the Facility as an Operating Expense; such software may be retained by Manager upon expiration or termination hereof. Furthermore, the City recognizes that the Operations Manual to be developed and used by Manager hereunder is proprietary to Manager, and shall belong to Manager at the end of the Term; City shall not use or maintain copies thereof upon the end of the Term except as may be required by the Washington State Public Records Act per Section 18.17 below. Section 5.2 Right of Use by Manager. The City hereby gives Manager the right and license to use the Facility, and Manager accepts such right of use, for the purpose of performing the services herein specified, including the operation and maintenance of all physical and mechanical Facility necessary for, and related to, the operation, maintenance and management of the Facility. The City shall provide Manager with a sufficient amount of suitable office space in the Facility and with such office equipment as is reasonably necessary to enable Manager to perform its obligations under this Agreement. In addition, the City shall make available to Manager, at no cost, parking spaces adjacent to the Facility for all of Manager's full -tinge employees and for the Facility's event staff. The City will retain the use of one (1) office with a door in the Facility for use by City staff. Section 5.3 Observance of A eements. The City agrees to pay, keep, observe and perform all payments, terms, covenants, conditions and obligations under any leases, bonds, debentures, loans and other financing and security agreements to which the City is bound in connection with its ownership of the Facility. MANAGEMENT SERVICES AGREEMENT - 8 - 65 al2023 CITY OF CITY HALL Federal ■ A ■a Feder 8th Avenue South ■V►■�I■ Federal Way, WA 98003-6325 (253) 835-7000 www. alyoffederalwaycom Section 5.4 Use by the City. Subject to availability, the City shall have the right to use the Facility or any part thereof without paying rent for meetings, seminars, training classes or other non-commercial uses, provided that the City shall promptly reimburse Manager, for deposit into the Operating Account, for any out-of-pocket expenses incurred by Manager (such as the cost of ushers, ticket -takers, set-up and take -down personnel, security expenses, and other expenses) in connection with such use. Such non-commercial use of the Facility by the City shall: (i) not compete with or conflict with the dates previously booked by Manager for paying events, (ii) not consist of normally touring attractions (such as concerts and family shows), and (iii) be booked in advance upon reasonable notice to Manager pursuant to the Facility' approved booking policies. Upon request of the City, Manager shall provide to the City a list of available dates for City use of the Facility. To the extent that Manager has an opportunity to book a revenue -producing event on a date that is otherwise reserved for use by the City, Manager may propose alternative dates for the City's event, and the City shall use best efforts to reschedule its event to allow Manager to book the revenue -producing event, provided, that the City shall not be obligated to reschedule its event. For purposes of calculating Manager's Incentive Fee, Manager shall receive a "paper" credit for an amount equal to the difference between the published Facility rate and the rate (if any) charged to the City for such use of the Facility, when such City ,ise precludes rental of the facility to an available paying customer. Section 5.5 Right of Ingress and Egress. Manager acknowledges that the City shall have the right to enter the Facility and to grant to others the right of ingress and egress to and from the Facility for the purpose of inspection thereof, the conduct of capital improvements, or other purposes. The City agrees to use reasonable commercial efforts to coordinate such entry with the Manager to minimize interference with scheduled activities at the Facility. 6. PERSONNEL Section 6.1 Generally. All Facility staff and other personnel shall be engaged or hired by Manager, and shall be employees, agents or independent contractors of Manager (or an Affiliate thereof), and not of the City. Subject to the remainder of this paragraph, Manager shall select, in its sole discretion but subject to City's right to approve the Operating Budget, the number, function, qualifications, and compensation, including -salary and benefits, of its employees and shall control the terms and conditions of employment (including without limitation termination thereof) relating to such employees. Manager agrees to use reasonable and prudent judgment in the selection and supervision of such personnel. The City specifically agrees that Manager shall be entitled to pay its employees, as an Operating Expense, bonuses and benefits in accordance with Manager's then current employee manual, which may be modified by Manager from time to time in its sole discretion. A copy of Manager's current employee manual shall be provided to the City upon request. City shall pay all accrued but unused vacation time to its employee's whose employment with City is terminating and whose employment with Manager is commencing. Section 6.2 General Manager_. Personnel engaged by Manager will include an individual with experience managing facilities similar to the Facility to serve as a full-time'on-site General Manager of the Facility. Hiring of the General Manager by Manager shall require the prior approval of the City, which approval shall not be unreasonably withheld or delayed; provided, however, in the event of a vacancy in the General Manager position, Manager may, upon notice to the City, temporarily fill such position with an interim General Manager for up to ninety (90) days without the necessity of obtaining the City's approval. The General Manager will have general supervisory responsibility for Manager and will be responsible for day-to-day operations of the Facility, supervision of employees, and management and coordination of all activities associated with events taking place at the Facility. Section 6.3 On -Site Sales Person. Manager shall engage one (1) person to serve as an on -site sales person MANAGEMENT SERVICES AGREEMENT - 9 - 66 4/2023 CITY OF L Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 VAvvv, C11yoffederal mly. com for commercial and naming rights, the costs of whom shall be considered an Operating Expense of the Facility. Section 6.4 Non-Solicitation/Non-Hiring. During the Term and for a period of one (1) year after the end of the Term, neither City nor any of its Affiliates shall solicit for employment, or hire, any of Manager's Management -Level Employees unless Management agrees to such solicitation or employment in writing. The City acknowledges that Manager will spend a considerable amount of time identifying, hiring and training individuals to work in such positions, and that Manager will suffer substantial damages, the exact amount of which would be difficult to quantify, if the City were to breach the terms of this Section by hiring, or soliciting for employment, any of such individuals. Accordingly, in the event of a breach or anticipated breach of this Section by the City, Manager shall be entitled (in addition to any other rights and remedies which Manager may have at law or in equity, including money damages) to equitable relief, including an injunction to enjoin and restrain the City from continuing such breach, without the necessity of posting a bond. 7. OPERATING BUDGET Section 7.1 Operating Budget. Manager agrees that at least 180 days prior to the commencement of each subsequent Operating Year in respect of such year, it will prepare and submit to the City a proposed Operating Budget for the for such year for the City's review and approval as provided in Section 7.2. Each such annual Operating Budget shall include Manager's good faith projection of Revenues and Operating Expenses, presented on a monthly and annual basis, for the upcoming Operating Year. The City agrees to provide Manager with all information in its possession necessary to enable Manager to prepare each Operating Budget. Manager agrees to cooperate with the City and make presentations to the City council as part of the City's own internal budgeting process. Section 7.2 Approval of O eratin Bud et. Each of the annual Operating Budgets shall be subject to the review and approval of the City, which approval may be withheld or granted in its sole discretion. In order for the City to fully evaluate and analyze such budgets or any other request by Manager relating to income and expenses, Manager agrees to provide to the City such reasonable financial information relating to the Facility as may be requested by the City from time to time. If extraordinary events occur during any Operating Year that could not reasonably be contemplated at the time the corresponding Operating Budget was prepared, Manager may submit an amendment to such budget for review and approval by the City, which approval may be withheld or granted in its sole discretion. If the City fails to approve any annual Operating Budget (or any proposed amendment thereto), the City shall promptly provide Manager the specific reasons therefor and its suggested modifications to Manager's proposed Operating Budget or amendment in order to make it acceptable. The Parties shall then engage in good faith discussions and use reasonable commercial efforts to attempt to resolve the matter to the mutual satisfaction of the Parties, including, if applicable, negotiation of a mutually acceptable modification to the economic terms of this Agreement to enable the Manager to achieve the compensation contemplated by its proposed Operating Budget. Section 7.3 Adherence to Operating Budget. Manager shall use all reasonable efforts to manage and operate the Facility in accordance with its Operating Budget. However, City acknowledges that notwithstanding the Manager's experience and expertise in relation to the operation of facilities similar to the Facility, the projections contained in each Operating Budget are subject to and may be affected by changes in .financial, economic and other conditions and circumstances beyond the Manager's control, and that Manager shall have no liability if the numbers within the Operating Budget are not achieved. Manager agrees to notify the City within 30 days of any significant change or variance in the bottom line number in the Operating Budget, and any material increase in total Facility expenses from that provided for in the Operating Budget. In either such case Manager agrees to work with City to develop and implement a plan (or changes to the then current plan) to limit Operating 67 4/2023 MANAGEMENT SERVICES AGREEMENT - 10 - 44 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 835-7000 WWW cifyoifedarafway. com Expenses to be incurred in the remaining months of such Operating Year with the goal of achieving the Operating Budget. 8. PROCEDURE FOR HANDLING INCOME Section 8.1 Event Account. Manager shall deposit as soon as practicable following receipt, in the Event Account for the Facility, all revenue received from ticket sales and similar event -related revenues that Manager receives in contemplation of, or arising from, an event at the Facility, pending completion of the event. Such monies will be held in trust for the protection of ticket purchasers, City, and Manager, and to provide a source of funds as required for payments to performers and for payments of direct incidental expenses in connection with the presentation of events that must be paid prior to or contemporaneously with such events. Promptly following completion of such events, Manager shall transfer all funds remaining in the Event Account, including any interest accrued thereon, into the Operating Account for the Facility. Section 8.2 OperatingOperatiLig Account. Except as provided in Section 8.1, all Revenue derived from operation of the Facility shall be deposited by Manager into the Operating Acco'.:.':t as soon as practicable '__V receipt The specific procedures (and authorized individuals) for making deposits to and withdrawals from such account shall be set forth in the Operations Manual, but the Parties specifically agree that Manager shall have authority to sign checks and make withdrawals from such accounts, subject to the limitations of this Agreement. 9. FUNDING Section 9.1 Source of Funding. Manager shall pay all items of expense for the operation, maintenance, supervision and management of the Facility from the funds in the Operating Accounts for the Facility. The Operating Accounts shall be funded with amounts generated by operation of the Facility (as described in Article 8 above), or otherwise made available by the City. To ensure sufficient funds are available in the Operating Accounts, City will deposit in the Operating Accounts, on or before the Effective Date, the budgeted or otherwise approved expenses for the Facility for the three (3) month period beginning on the Effective Date. The City shall thereafter, on or before the I" day of each succeeding month following the Effective Date, deposit (or allow to remain) in the Operating Accounts the budgeted or otherwise approved expenses for each such month, retaining at all times in the accounts funding for the upcoming 3-month period. Manager shall have no liability to the City or any third party in the event Manager is unable to perform its obligations hereunder, or under any third -party contract entered into pursuant to the terms hereof, due to the fact that sufficient funds are not made available to Manager to pay such expenses in a timely manner. If the City appropriates funds at (or reduces appropriated funds to) a level that, in the Manager's good faith reasonable judgment, renders the management of the Facility as contemplated in the Agreement not feasible, Manager and the City shall meet as necessary to formulate a plan to continue management of the Facility at a reduced level of services consistent with anticipated Operating Revenues and available funding. Section 9.2 Advancement of Funds. Under no circumstances shall Manager be required to pay for or advance any of its own funds to pay for any Operating Expenses. In the event that, notwithstanding the foregoing, Manager agrees to advance its own fiends to pay Operating Expenses, City shall promptly reimburse Manager for the full amount of such advanced funds, plus interest at 12% per annum. 10. FISCAL RESPONSIBILITY; REPORTING Section 10.1 Records. Manager agrees to keep and maintain, at its office in the Facility, separate and independent records, in accordance with generally accepted accounting principles, devoted exclusively to its 68 MANAGEMENT SERVICES AGREEMENT - I I - 4/2023 CITY OF CITY HALL Fe I 33325 8th Avenue South An d e ra way Federal Way, VVA 98003-6325 (253) 835-7000 vmw atyoffederaiway. cam operations in connection with its management of the Facility. Such records (including books, ledgers, journals, and accounts) shall contain all entries reflecting the business operatihns of Manager under this Agreement. The City or its authorized agent shall have the right to audit and inspect such records from time to time during the Term, upon reasonable notice to Manager and during Manager's ordinary business hours. Section 10.2 Monthly Financial Reports. Manager agrees to provide to the City, within thirty (30) days after the end of each month during the Term, financial reports for the Facility including a balance sheet, aging report on accounts receivable, and statement of revenues and expenditures (budget to actual) for such month and year to date in accordance with generally accepted accounting principles. In addition, Manager agrees to provide to the City a summary of bookings for each such month, and separate cash receipts and disbursements reports for each event held at the Facility during such month. Additionally, Manager shall submit to the City, or shall cause the applicable public depository utilized by Manager to submit to the City, on a monthly basis, copies of all bank statements concerning the Event Account and the Operating Account. Section 10.3 Annual Plan. Simultaneously with the submission of each annual Operating Budget referenced in Section 7 of this Agreement, Manger shall also submit an annual plan (the "Annual Plan") for the City's review and approval. The Annual Plan will include information regarding Manger's anticipated operations for the coming Operating Year, including planned operating maintenance activities (including a preventive maintenance schedule), expense control initiatives, requested capital improvements and capital equipment purchases, anticipated events at the Facility, anticipated advertising and promotional activities, and planned equipment and furnishings purchases. The Annual Plan shall be subject to review, revision and approval by the City. Section 10.4 Audit. Manager agrees to provide to the City, within one hundred twenty (120) days following the end of each Operating Year, a certified audit report on the accounts and records as kept by Manager for the Facility. Costs associated with obtaining such certified audit report shall be an Operating Expense of the Facility. Such audit shall be performed by an external auditor approved by the City, and shall be conducted in accordance with generally accepted auditing standards and those procedures required by applicable state law. Manager agrees that it will cooperate fully with the Auditor's Office of the State of Washington and provide it and its agents with all information that it may request in connect with a state audit of the Facility. Costs associated with a state audit shall be an Operating Expense of the Facility. Section 10.5 Federal Pro am Re ortin . Facility construction costs were partially funded by the federal Section 108 program as well as the New Market Tax Credit program, both of which require recording and reporting of performance metrics on established subjects. Manager agrees to record those metrics required by the City to facilitate the City's obligation to report to the federal government. 11. CAPITAL IMPROVEMENTS; MANAGER CONTRIBUTION Section l L i Schedule of Coital Expenditures. Manager shall annually, at the time of submission of the. annual Operating Budget to the City, provide to the City a schedule of proposed capital improvements to be made at the Facility, for the purpose of allowing the City to consider such projects and to prepare and update its long-range Capital Expenditure budget. Section l l .2 Responsibility for Capital Expenditures. The City shall be solely responsible for all Capital Expenditures at the Facility; provided, however, the City shall be under no obligation to make any Capital Expenditures proposed by Manager, and provided further that. Manager shall have no liability for any claims, costs or damages arising out of a failure by the City to make any Capital Expenditures. Notwithstanding the foregoing, MANAGEMENT SERVICES AGREEMENT - 12 - 69 4/2023 [irr of 3332 HALL Federal V Y ay Feder l Avenue South Federal Way, WA 98003-63'25 (253) 835-7000 wvw cityofl ederal way. com Manager shall have the right (but not the obligation), upon notice to the City, to make Capital Expenditures at the Facility for Emergency Repairs. In such event, the City shall promptly reimburse Manager for the cost of such Capital Expenditure. Section 11.3 Manager Contribution. Manager hereby agrees to make a contribution of Two Hundred Thousand Dollars ($200,000) to the City (the "Contribution"). The Contribution shall be paid to the City no later than February 1, 2024, and may be used for any purpose in the City's discretion, but the City agrees to give due consideration to using such funds to develop an event fund to attract events to the Facility. The Contribution shall be amortized on a straight-line basis over a one hundred twenty (120) month period (at the rate of 1/120 per month), beginning on the Effective Date and ending on January 31, 203 3. Upon the expiration or termination (for any reason whatsoever, including without limitation if due to a breach, default or bankruptcy event by or affecting Manager, or if the City elects not to renew this Agreement beyond the Initial Term) of this Agreement, the City shall immediately pay to Manager the unamortized amount of the Contribution, without deduction or setoff of any kind. 12. FOOD AND BEVERAGE SERVICE Section 12.1 Generally. Manager shall have the sole and exclusive rig'ret to manage and per urin., and Manager hereby agrees to manage and perform all food and beverage concession and catering service at the Facility ("Food and Beverage Service"). Manager may engage sub -contractors to sell food and beverages at the Facility. Section 12.2 Concession and Catering. Manager shall have the exclusive right to use, or permit a third -party to use, as applicable, the concession stands, novelty stands, customer serving locations, banquet facility, catering facility, exhibition space, food preparation areas, vendor commissaries, kitchen and storage facilities, and other food service related areas of the Facility, together with the improvements, equipment and personal property upon or within such areas, for the purpose of providing the Food and Beverage Service (and providing other duties required of Manager hereunder). Manager shall acquire all smallwares and equipment reasonably required by Manager to perform the Food and Beverage Service and such costs shall be an Operating Expense or Capital Expenditure, as applicable, of the Facility. Section 12.3 Food and Beverage Duties. In connection with its management and provision ofthe Food and Beverage Service, Manager shall: (a) Develop and implement all necessary policies and procedures for food and beverage operations; (b) Manage the Food and Beverage Service in compliance with and subject to all federal, state and local laws, ordinances and regulations (including, without limitation, health and sanitation codes and regulations with respect to the sanitation and purity of the food and beverage products for sale); (c) Engage and oversee employees necessary to perform the Food and Beverage Services; (d) Arrange for all minor repairs and routine maintenance to the equipment used in the operation of the Food and Beverage Service; (e) Keep the Food and Beverage Facility and equipment in a neat, clean, and sanitary condition; (f) Undertake appropriate advertising, marketing, and promotion of the food and beverage offerings at the Facility; MANAGEMENT SERVICES AGREEMENT - 13 - 70 4/2023 CITY OF CITY HALL Federal „ ' `{�J�yJ +� 33325 8th Avenue South Federal Way, WA 98003-6325 y (253) 835-7000 wmvcrryaffederafFvay. ccm (g) Develop menus, portions, brands, prices, themes and marketing approaches. Manager shall be entitled to set the prices for such items for sale, but Manager agrees to confer with the City's Contract Administrator and take the City's views into account prior to setting (or changing) such prices; and (h) Order, stock, prepare, pay for (as an Operating Expense) and sell appropriate foods and beverages. Section 12.4 Alcohol Licenses and Permits. Manager agrees to apply for all appropriate alcohol licenses and permits, subject to applicable law. The City shall provide reasonable assistance to Manager in such regard. At the end of the Term, Manager shall without charge to City relinquish its rights in, or terminate (as applicable), the alcohol licenses and permits for the Facility. Section 12.5 Food and Bevera a Revenue and Expenses. All revenue from operation of the Food and Beverage Service shall be deemed Revenue, and shall be deposited by Manager into the Operating Account. All expenses incurred in connection with the provision of the Food and Beverage Service shall be Operating Expenses, payable by Manager with funds from the Operating Account. 13. FACILITY CONTRACTS; TRANSACTIONS WITH AFFILIATES Section 13.1 Execution of Contracts. Excluding any contract for a "public work" as defined in Chapter 39.04 RCW, Manager shall have the right to enter into Service Contracts, Revenue Generating Contracts, and other contracts related to the operation of the Facility, as agent on behalf of the City. Any such material agreements shall contain standard indemnification and insurance obligations on the part of each vendor, licensee, or service provider, as is customary for the type of services or obligations being provided or performed by such parties and consistent with other provisions in this Agreement relating to indemnification and insurance requirements for vendors, licensees, or service providers. Manager shall obtain the prior approval of the City (which approval shall not be unreasonably withheld or delayed) before entering into any such contract with a term that expires after the Term of this Agreement, unless such contract, by its express terms, can be terminated by Manager or City following expiration of the Term without any penalty. Section 13.2 Transactions with Affiliates. In connection with its obligations hereunder relating to the purchase or procurement of services for the Facility, Manager may purchase or procure such services, or otherwise transact business with, an Affiliate of Manager, provided that the prices charged and services rendered by such Affiliate are competitive with those obtainable from any unrelated parties rendering comparable services. Manager shall, at the request of the City, provide reasonable evidence establishing the competitive nature of such prices and services, including, if appropriate, competitive bids from other persons seeking to render such services at the Facility. 14. AGREEMENT MONITORING AND GENERAL MANAGER Section 14.1 Contract Administrator. Each party shall appoint a contract administrator who shall monitor such party's compliance with the terms of this Agreement. Manager's contract administrator shall be its General Manager at the Facility, unless Manager notifies City of a substitute contract administrator in writing. City shall notify Manager of the name of its contract administrator within thirty (30) days of execution hereof. Either party may change its contract administrator by providing written notice of such change to the other party. Any matters in this Agreement requiring Manager's participation or approval shall mean the participation or approval of the Manger's contract administrator, who to the extent such contract administrator has authority delegated from Manager, shall MANAGEMENT SERVICES AGREEMENT - 14 - 71 4/2023 CITY OF CITY HALL Federal edaral Way ray Feder l Avenue South ■Y■■iIJ Federal Way, WA 96003-6325 (253) 835-7000 wwwolypffederaNvay com have the authority to act for and bind Manager with respect to any such matter. The City acknowledges that Manager's contract administrator does not have the authority to amend or modify this Agreement in any manner. Any matters in this Agreement requiring the City's participation or approval shall be directed to the City's contract administrator. The City's contract administrator may, to the extent such contract administrator has authority delegated from the City, act for and bind the City. When the City's contract administrator must present an issue to the City mayor or City council in order to authorize a request or bind the City, the City contract administrator will notify Manager promptly. 15. INDEMNIFICATION Section 15.1 Indemnification by Man a er. Manager agrees to defend, indemnify and hold harmless the City and its officials, directors, officers, employees, agents, successors and assigns against any claims, causes of action, costs, expenses (including reasonable attorneys' fees) liabilities, or damages (collectively, "Losses") suffered by such parties and caused by any (a) negligent act or omission, or intentional misconduct, on the part of Manager or any of its employees or agents in the performance of its obligations under this Agreement, or (b) breach by Manager of anv of its renresenntations, covenants or agreements made herein. Section 15.2 Indemnification by the City. City agrees to defend, indemnify and hold harmless Manager, its parent, subsidiary and affiliate companies, and each of their respective directors, officers, employees, agents, successors and assigns, against any Losses suffered by such parties, arising out of or in connection with (a) any negligent act or omission, or intentional misconduct, or failure to comply with Laws, on the part of City or any of its employees or agents (excluding Manager and its employees) in the performance of its obligations under this Agreement, (b) a breach by City of any of its representations, covenants or agreements made herein, including without limitation City's obligation to pay any budgeted or otherwise approved expenses in a timely manner, (c) failure by City to pay any amounts due by City or to otherwise perform any obligations of City under any third -parry contracts, licenses or agreements entered into by Manager in furtherance of its duties hereunder as authorized hereby; (d) any environmental condition at the Facility or on or under the premises on which the Facility is located not caused by Manager, its employees or agents, (e) any structural defect with respect the Facility, (f) the fact that any time prior to, as of, or after the effective date of this agreement the Facility is not or has not been in compliance with all Laws, including, but not limited to, the Americans With Disabilities Act as it now exists and as it may be amended in the future by statute or judicial interpretation, (g) any act or omission carried out by Manager at or pursuant to the written direction or instruction of City, its agents or employees, (h) any claims relating to the Facility or their operations accruing or caused by occurrences prior to the Effective Date or following termination or expiration of this Agreement, and (i) any withdrawal liability for a share of unfunded vested benefits under multiemployer plans (as that term is defined in 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended). Section 15.3 Conditions to Indemnification. With respect to each separate matter brought by any third party against which a party hereto ("Indemnitee") is indemnified by the other parry ("Indemnitor") under this Article 15, the Indemnitor shall be responsible, at its sole cost and expense, for controlling, litigating, defending and/or otherwise attempting to resolve, through counsel of its choice, any proceeding, claim, or cause of action underlying such matter, except that (a) the Indemnitee may, at its option, participate in such defense or resolution at its expense and through counsel of its choice; (b) the Indemnitee may, at its option, assume control of such defense or resolution if the Indemnitor does not promptly and diligently pursue such defense or resolution, provided that the Indemnitor shall continue to be obligated to indemnify the Indemnitee hereunder in connection therewith; and (c) neither Indemnitor nor Indemnitee shall agree to any settlement without the other's prior written consent (which shall not be .unreasonably withheld or delayed). In any event, Indemnitor and Indemnitee shall in good faith cooperate with each MANAGEMENT SERVICES AGREEMENT -15 - 72 4/2023 cr'rY OF CITY HALL �� ,� �V►wJ `� 8th Avenue South Feder Federal Way, WA 98003-6325 y (253) 835-7000 www.cipoo federgl�v,3y.corn other and their respective counsel with respect to all such actions or proceedings, at the Indemnitor's expense. With respect to each and every matter with respect to which any indemnification may be sought hereunder, upon receiving notice pertaining to such matter, Indemnitee shall promptly give reasonably detailed written notice to the Indemnitor of the nature of such matter and the amount demanded or claimed in connection therewith. Section 15.4 Survival. The obligations of the Parties contained in this Article 15 shall survive the termination or expiration of this Agreement. Section 15.5 Lg al Costs. Notwithstanding the other provisions of this Agreement, if legal costs are being incurred by the Manager or the City for a third -party claim in respect of which the City is claiming indemnity from the Manager, such legal costs will be considered an Operating Expense unless and until liability of the Manager pursuant to this Agreement is established by a court of competent jurisdiction with respect to the underlying claim on which the Manager's obligation to indemnify is based. In the event that the liability of the Manager is so determined, then such legal costs shall be considered as costs of the Manager (and not Operating Expenses) in proportion to the comparative degree established by the court and covered by the indemnity given by the Manager to the City hereunder and the Parties shall adjust between them in respect of such legal costs. 16. INSURANCE Section 16.1 Types and Amount of Govera�e. Manager agrees to obtain insurance coverage in the manner and amounts as set forth in Exhibit C, attached hereto, and shall provide to the City promptly following the Effective Date a certificate of certificates of insurance evidencing such coverage. Manager shall maintain such referenced insurance coverage at all times during the Term, and will not make any material modification or change from these specifications without the prior approval of the City. Each insurance policy shall include a requirement that the insurer provide Manager and the City at least thirty (30) days written notice of cancellation or material change in the terms and provisions of the applicable policy. The cost of all such insurance shall be an Operating Expense. Section 16.2 Rating Additional Insureds. All insurance policies shall be issued by insurance companies rated no less than A ViII in the most recent "Bests" insurance guide, and licensed in the State of Washington or as otherwise agreed by the Parties. All such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. The commercial general liability policy, automobile liability insurance policy, and umbrella or excess liability policy to be obtained by Manager hereunder shall name City as an additional insured, The workers compensation policy to be obtained by Manager hereunder shall contain a waiver of all rights of subrogation against the City. Manager shall require that all third -party users of the Facility, including, without limitation, third -party licensees, ushers, security personnel, and concessionaires provide certificates of insurance evidencing insurance appropriate for the types of activities in which such user is engaged. If Manager subcontracts any of its obligations under this Agreement, Manager shall require each such subcontractor to secure insurance that will protect against applicable hazards or risks of loss as and in the minimum amounts designated herein, and name Manager and the City as additional insureds. Section 16.3 Crime Insurance. Those employees of Manager who have access to or are responsible for the funds generated under this Agreement shall be covered by a crime insurance policy to be obtained by Manager consistent with the requirements of Exhibit C hereto. MANAGEMENT SERVICES AGREEMENT - 16 - 3 4/2023 CITY OF CITY HALL 33325 ,.�. FQ d e ra I �y Federal Avenue South FederWay, VVA 98003-6325 (253) 835-7000 ywvw otyoffederalway. com 17. REPRESENTATIONS, WARRANTIES AND COVENANTS Section 17.1 Manager Representations and Warranties. Manager hereby represents, warrants and covenants to City as follows: (a) that it has the full legal right, power, and authority to enter into this Agreement and to grant the rights and perform the obligations of Manager herein, and that no third -party consent or approval is required to grant such rights or perform such obligations hereunder; and (b) that this Agreement has been duly executed and delivered by Manager and constitutes a valid and binding obligation of Manager, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar Laws affecting creditors' rights generally or by general equitable principles. (c) that Manager will comply with all Laws applicable to its management of the Facility, provided that Manager shall not be required to undertake any compliance activity, nor shall Manager have any liability under this Agreement therefor, if such activity requires any Capital Expenditure. Section 17.2 City Representations, Warranties and Covenants. City represents, warrants and covenants to Manager as follows: (a) that it has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations of City herein, and that no other third -party consent or approval is required to grant such rights or perform such obligations hereunder. (b) that this Agreement has been duly executed and delivered by City and constitutes a valid and binding obligation of City, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. (c) that the Facility is, as of the Effective Date, in compliance in all respects with all applicable Laws relating to the construction, use and operation of the Facility (including, without limitation, Title III of the American with Disabilities Act), and that the City has no knowledge of any existing structural defects or unsound operating conditions at the Facility. 18. MISCELLANEOUS Section 18.1 PCI Compliance. Manager agrees to comply with all current Payment Card Industry Data Security Standards ("PCI Standards") and guidelines that may be published from time to time by Visa, MasterCard or other associations' as they relate to the physical storage of credit card data. For PCI Standards compliance purposes, City will provide on a segmented network, an appropriate number of wired data connections to the Internet for point of sale devices to be used by Manager and any contractors at the Facility. City shall be responsible for the security of its network, including, without limitation, applicable PCI-DSS compliance, and for procuring and installing point of sale ("POS") payment systems that are compliant with the latest PCI-DSS requirements. If at any time either party determines that card account number or other information has been compromised, such party will notify the other immediately and assist in providing notification to the proper parties as deemed necessary. MANAGEMENT SERVICES AGREEMENT - 17 - 74 4/2023 Federal Way CITY HALL 33325 8t1i Avenue South Federal Way, WA 98003-6325 (253) 835-7000 www.61yoffederafwQy. com Section 18.2 No Discrimination. Manager agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, religion, color, sex, disability, national origin, ancestry, physical handicap, age, sexual orientation, gender identity, or veteran or military status and will tape affirmative steps to ensure that applicants are employed, and employees are treated during employment, without regard to race, religion, color, sex, disability, national origin, ancestry, physical handicap, age, sexual orientation, gender identity, or veteran or military status. Section 18.3 Use of Facility Names and Lo os. Manager shall have the right to use throughout the Term (and permit others to use in furtherance of Manager's obligations hereunder), for no charge, the name and all logos of the Facility, on Manager's stationary, in its advertising; of the Facility, and whenever conducting business of the Facility; provided, that Manager shall take all prudent and appropriate measures to protect the intellectual property rights of the City relating to such logos. All intellectual property rights in any Facility logos developed by the Manager or the City shall be and at all times remain the sole and exclusive property of the City. Manager agrees to execute any documentation requested by the City from time to time to establish, protect or convey any such intellectual property rights. Section 18.4 Facility Advertisements. The City agrees that in all advertisements placed by the City for the Facility or events at the Facility, whether such advertisements are in print, on radio, television, the internet or otherwise, it shall include a designation that the Facility is managed by Global Spectrum L.P. The specific logos and branding details to be include in any designations shall be set forth in the Operations Manual. Section 18.5 Force Majeure; Casualty Loss. (a) Neither party shall be liable or responsible to the other party for any delay, loss, damage, failure or inability to perform under this Agreement due to an Event of Force Majeure, provided that the party claiming failure or inability to perform provides written notice to the other party within thirty (30) days of the date on which such party gains actual knowledge of such Event of Force Majeure. Notwithstanding the foregoing, in no event shall a party's failure to make payments due hereunder be excusable due to an Event of Force Majeure. (b) In the event of damage or destruction to a material portion of the Facility by reason of fire, storm, or other casualty loss that renders the Facility (or a material portion thereof) uninhabitable, the City shall use reasonable efforts to remedy such situation. If notwithstanding such efforts, such damage or destruction is expected to render the Facility (or a material portion thereof) untenantable for a period estimated by an architect selected by the City at Manager's request, of at least one hundred eighty (180) days from the date of such fire, storm, or other casualty loss, either party may terminate this Agreement upon written notice to the other, provided that (i) the City shall pay to Manager its costs of withdrawing from services at the Facility hereunder, as described in Section 4.3(a) above, and (ii) the Parties shall negotiate appropriate adjustments to the compensation terms herein to account for the reduction in duties of Manager hereunder (and any such changes shall be mutually agreed). Section 18.6 Assignment' Binding on Successors and Assigns. Neither party may assign this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that either party may, without the prior written consent of the other party but upon at least 30 days' written notice to the other party, assign this Agreement in connection with a sale, merger, or other business combination involving all or substantially all of its assets or equity interests, and Manager may further assign this Agreement to an Affiliate where such assignment is intended to accomplish an internal corporate purpose of Manager as opposed to materially and substantially altering the method of delivery of services to City. Any purported assignment in contravention of this Section shall be void. This Agreement is binding on successors and permitted assigns of the Parties. MANAGEMENT SERVICES AGREEMENT - 18 - 75 4/2023 C17Y OF CITY HALL 33325 8th Avenue South A*� Fe d e ra 11�t►Iay Federal Way, NIA 38003-6325 (253) 635-7000 wwvv ct" federal way. com Section 18.7 Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. If to the City: City of Federal Way 33325 8" Avenue South Federal Way, WA 98003 Attn: Parks Department With n rnpv tn: City of Federal Way 33325 8`h Avenue South Federal Way, WA 98003 Attn: City Attorney's Office If to Manager: Global Spectrum L.P. 3601 S. Broad Street Philadelphia, PA 19148 Attn: Chief Operating Officer With a cony to: Global Spectrum L.P. 3601 South Broad Street Philadelphia, Pennsylvania 19148-5290 Attn: General Counsel The designation of the entities to be so notified and the addresses of such Parties set forth above may be changed from time to time by written notice to the other parry in the manner set forth above. Section 18.8 Severability. If a court of competent j urisdiction determines that any term of this Agreement is invalid or unenforceable to any extent under applicable law, the remainder of this Agreement (and the application of this Agreement to other circumstances) shall not be affected thereby, and each remaining term shall be valid and enforceable to the fullest extent permitted by law. Section 18.9 Entire Agreement. This Agreement (including the exhibits attached hereto) contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior negotiations, correspondence, conversations, agreements, and understandings concerning the subject matter hereof. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations, agreements or understandings, whether oral or written. Section 18.10 Governing Law. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Washington without regard to its conflict of laws principles. Section 18.11 Amendments. Neither this Agreement nor any of its terms maybe changed or modified except by an instrument in writing signed by an authorized representative of both of the Parties to this Agreement. Section 18.12 Waiver;Remedies. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and MANAGEMENT SERVICES AGREEMENT - 19 - 76 4/2023 CITY OF CITY3332 HALL Federal 1�1Iay 8th Avenue South Feder Federal Way, VVA 98003-6325 (253) 835-7000 cw wdlyoffedoralwaycam effect with respect to any other then existing or subsequent breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the remedies provided by law or in equity. Section 18.13 Relationship of Parties. Manager and City acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to the Facility, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or similar relationship between City and Manager. In operating the Facility, entering into contracts, accepting reservations for use of the Facility, and conducting financial transactions for the Facility, Manager acts on behalf of and as agent for City (but subject to the limitations on Manager's authority as set out in this Agreement), with the fiduciary duties required by law of a party acting in such capacity. Section 18.14 No Third-Pgty Beneficiaries. Other than the indemnitees listed in Sections 15.1 and 15.2 hereof (who are third party beneficiaries solely with respect to the indemnification provisions in such sections), there are no intended third party beneficiaries under this Agreement, and no third party shall have any rights or make any claims hereunder, it being intended that solely the Parties hereto (and the aforementioned indemnitees with respect to the indemnification provisions hereof) shall have rights and may make claims hereunder. Section 18.15 Limitation on Damages. In no event shall either party be liable or responsible for any consequential, indirect, incidental, punitive, or special damages (including, without limitation, lost profits) whether based upon breach of contract or warranty, negligence, strict tort liability or otherwise, and each parry's liability for damages or losses hereunder shall be strictly limited to direct damages that are actually incurred by the other party, provided that the foregoing shall not limit or restrict any claim by Manager for the management fees described herein upon a breach or default of this Agreement by City. Section 18.16 Counterparts: Facsimile and Electronic Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. This Agreement may be executed by the Parties and transmitted by facsimile or electronic transmission, and if so executed and transmitted, shall be effective as if the Parties had delivered an executed original of this Agreement. Section 18.17 Public Records Act. To the extent the Washington Public Records Act (Chapter 42.56 RCW) or equivalent -or successor statute is applicable to the City, Manager shall cooperate, coordinate with, and assist the City in the disclosure, or non -disclosure in the event of an exemption to such disclosure, of any information requested under the Public Records Act, as determined by the City, in its sole discretion. Section 18.18 Gratuities and Kickbacks. It shall be a breach of the Manager's obligations hereunder to offer, give, or agree to give any -person, entity or any employee of the City (or former employee of the City) a gratuity, success fee, commission, anything else of value, or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of any purchase request, influence in the consent of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity, in any proceeding or application, request for ruling, determination, claim or controversy or other particular matter, pertaining to or solicitation of, any contract or proposal therefor by the manager from the City. MANAGEMENT SERVICES AGREEMENT - 20 - 77 4/2023 CITY OF CITY HALL 4! Federal � �� ■ �. i 33der 8th Avenue South00 V►Y■ Federal Way, WA 98003-6325 (253) 835-7000 V/MV cityOffederalway,. com [Signature page to follow] MANAGEMENT SERVICES AGREEMENT - 21 - 78 4/2023 CITY OF CITY HALL Fera [ Way8th Avenue South Feder Federaf Way, WA 98003-6325 40 (253) 835-700❑ www.c?ryoffederili4vay.com IN WITNESS WHEREOF, each parry hereto has caused this Management Agreement to be executed on behalf of such parry by an authorized representative as of the date first set forth above. CITY OF FEDERAL WAY: Jim Ferrell, Mayor DATE: ATTEST: Stephanie Courtney, CMC, City Clerk APPROVED AS TO FORM: J. Ryan Call, City Attorney MANAGEMENT SERVICES AGREEMENT - 22 - 9 4/2023 CITY OF Federal GLOBAL SPECTRUM, L.P: By: Printed Name: Title: DATE: STATE OF ) ss. COUNTY OF CITY HALL Way ■�� 33325 8th Avenue South�iY■ Federal Way, WA 98003-6325 (253) 835-7000 www. ciiyoffederalway. com Or. this day personally appeared before me _ , to me known_ to be the of GLOBAL SPECTRUM, L.P. that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited partnership company, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument. GIVEN my hand and official seal this day of Notary's signature Notary's printed name Notary Public in and for the State of My commission expires 20 MANAGEMENT SERVICES AGREEMENT - 23 - 80 4/2023 A4%CITY OF �� Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 635-7000 www cityoffederahwv corn SCHEDULEI MAP DEFINING OUTDOOR AREAS UNDER MANAGER'S MANAGEMENT MANAGEMENT SERVICES AGREEMENT - 24 - 81 4/2023 CITY OF CITY HALL �., 8th Avenue South Feder Federal Way. WA 98003-6325 FederalWay (253) 835-7000 www.cr[yoffederalway. com EXHIBIT A MANAGER DUTIES Manager's obligations under the Agreement shall consist of the following obligations, all of which are subject to the terms hereof and the controls and restrictions in the Operations Manual: (a) Manage all aspects of the Facility in accordance with the Operations Manual and the terms of this Agreement, including but not limited to managing food and beverage service, purchasing, Manager's payroll, fire prevention, security, crowd control, routine repairs, preventative maintenance, janitorial services, promotions, advertising, energy conservation, security, box office, admission procedures, parking (if applicable), and general user services. (b) Establish and adjust prices, rates and rate schedules for user, license, concessions, occupancy, and advertising agreements, and booking commitments. Manager may deviate from the established rate schedule when entering into any such agreements if the Manager, using reasonable business judgment, determines it necessary or appropriate with respect to the specific situation. (c) Procure, negotiate, execute, administer and assure compliance with Service Contracts, Revenue Generating Contracts, and other contracts related to the operation of the Facility. (d) Require that all material vendors and licensees of the Facility execute vendor/license agreements containing standard indemnification and insurance obligations, in compliance with current City insurance requirements, on the part of each such vendor/licensee. Parties (e) Provide standard form advertising and sponsorship contracts and user/rental agreements for use at or with respect to the Facility. The Manager shall submit such form agreements to the City for review and comment, and the Parties shall work together to finalize such forms. Once finalized, the Manager shall use such forms in furtherance of its duties hereunder, and shall not materially deviate from the terms contained in such forms without obtaining the prior approval of the City, which shall not be unreasonably withheld. The Manager's sole responsibility with regard to providing legal advice or assistance hereunder shall be to provide such standard form contracts. (f) Operate and maintain the Facility, including the equipment utilized in connection with its operation and any improvements made during the term of this Agreement, in the condition received, normal wear and tear excepted. Arrange for and otherwise book events at the Facility in accordance with booking schedules to be developed by Manager. (g) Arrange for and otherwise book events at the Facility in accordance with booking schedules to be developed by Manager. (h) Hire or otherwise engage, pay, supervise, and direct all personnel Manager deems necessary for the operation of the Facility and conduct staff planning, retention, and training MANAGEMENT SERVICES AGREEMENT - 25 - 4/2023 CITY CITY OF 3332 HALL Fe raWay Feder l Avenue South Federal Way. WA 98003-6325 (253) 835-7000 .wvwcFtyoffederahvay_ com programs as determined to be necessary by Manager in its sole discretion. (i) Maintain detailed, accurate, and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles, which records shall be made available to the City upon request. 0) Submit financial and other reports detailing Manager's activities in connection with the Facility to the City in a timely manner on a regular schedule as mutually agreed to by the Parties. (k) Prepare proposed annual Operating Budgets and submit such proposed budget to the City for approval in accordance with Section 7.1. (1) Pay all Operating Expenses and other expenses incurred in connection with the operation, maintenance, supervision, and management of the Facility from the applicable Operating Account or with funds otherwise made available by the City. (in) Apply for (or direct any other third party, as applicable, to apply for) and obtain all licenses and permits necessary for the operation and use of the Facility for the specific events to be held therein, and for the general occupancy of the Facility, including without limitation all necessary food and liquor licenses, and renewals thereof. The City shall cooperate in this process to the extent reasonably required. All costs associated with this process shall be classified as Operating Expenses. (n) Collect, deposit and hold in escrow in the Event Accounts any ticket sale revenues which it receives in the contemplation of or arising from an event pending the completion of the event, as more fully described in Section 8.1 of the Agreement. (o) Collect in a timely manner and deposit in the Operating Accounts all Revenue, as more fully described in Section 8.2 of the Agreement. (p) Subject to the City making available sufficient funds in a timely manner, pay all Taxes. (q) Plan, prepare, implement, coordinate, and supervise all public relations and other promotional programs for the Facility. (r) Prepare, maintain, and implement a Marketing Plan for the Facility subject to the City's approval, which shall be updated on a regular basis. (s) Market and sell Commercial Rights at or in connection with the Facility. Manager - intends to employ one (1) individual at the Facility to be responsible for marketing and selling Commercial Rights. The cost of such individual (salary, commission, and benefits) shall be an Operating Expense. MANAGEMENT SERVICES AGREEMENT -26- 4/2023 83 cirr OF CITY HALL Sth FederalaW3e325 l Avenue South03 1Y■Federal Way, WA 980-6325 �(253) 835-7000 mww d4vffederahvary. com (t) On an annual basis, take a written inventory of all furniture, fixtures, office equipment, supplies, tools, and vehicles at the Facility, and deliver a written report of the foregoing to City. Manager shall document all major damage to, or loss in, such inventory during the Term as soon as such damage or loss is discovered by Manager, and Manager shall promptly notify City of any such damage or loss. (u) Purchase, on behalf of the City and with City funds, and maintain during the Term, all materials, tools, machinery, equipment and supplies necessary for the operation of the Facility. (v) As agent for the City, manage risk management and Facility insurance needs. (w) Make and be responsible for all routine and minor repairs, maintenance, preventative maintenance, and equipment servicing. Manager shall be responsible for ensuring that all repairs, replacements, and maintenance shall be of a quality and class at least equal to that of the item being repaired, replaced or maintained. Any replacement of an item in inventory, or any new item added to the inventory, which is paid for by the City, shall be deemed the property of the City. (x) Cause such other acts and things to be done with respect to the Facility, as determined by Manager in its reasonable discretion to be necessary for the management and operation of the Facility following the Effective Date. MANAGEMENT SERVICES AGREEMENT IW-#m 4/2023 84 CITY OF CITY HALL Federal Way 33325 Avenue Federall South Way, nu 98003 25 (253) 835-7000 www cifyoffederalway com EXIIIBIT B OPERATING BUDGET This Exhibit shall be updated annually with the approved Operating Budget. MANAGEMENT SERVICES AGREEMENT -28- 4/2023 85 CITY OF CITY HALL Federal Way Feder l Avenue South Federal Way. WA 98003-6325 (253) 835-7000 www cityoffederalway com EXHIBIT C INSURANCE At all times during this Agreement, Manager shall maintain insurance coverage at commercially reasonable levels and in compliance with state law where applicable. Minimum insurance coverage shall be as follows: (a) commercial general liability insurance, including products and completed operations, bodily injury and property damage liability, contractual liability, independent contractors' liability and personal and advertising injury liability against claims occurring on, in, or about the Facility, or otherwise arising under this Agreement; (b) umbrella or excess liability insurance; (c) commercial automobile liability insurance, including coverage for the operation of owned, leased, hired and non -owned vehicles; (d) workers compensation and employer's liability insurance as shall be required by and be in conformance with the laws of the State of Washington; (e) professional liability insurance and self -insured employment practices liability coverage; (f) employment practices liability insurance; (g) pollution liability; and (h) crime coverage. Such liability insurance shall be maintained in the following minimum amounts throughout the Term: Commercial General Liability $2,000,000 per occurrence $2,000,000 personal and advertising injury $2,000,000 products -completed operations aggregate Umbrella or Excess Liabilit $5,000,000 per occurrence and aggregate Automobile Liability $2,000,000 per accident (PI and PD combined single limit) MANAGEMENT SERVICES AGREEMENT - 29 - 4/2023 86 CITY OF CITY HALL 33325 8th Avenue South Fe d e ra I Allay Federal Way, WA 98eJ03-6325 (253) 835-7000 www crtyoffederof"y com $2,000,000 uninsured/underinsured motorist Workers Com ensation Workers Compensation: Statutory Employer's Liability: $100,000 each accident -bodily injury by accident $500,000 policy limit -bodily injury by disease $100,000 each employee -bodily injury by disease Professional Liabili !Errors & Omissions Claims Made basis $1,000,000 each occurrence/aggregate Empig ment Practices Liability Insurance (Claims Made basis $1,000,000 Pollution Liabili Claims Made basis $1,000,000 Crime Insurance Coverage on all on -site Manager employees. Limit: $500,000.00 MANAGEMENT SERVICES AGREEMENT - 30 - 4/2023 87 i; �• � 1 _ • • . III y �, � F i' Y. 1 � � � � � � � � � � � � �a �y • � �w � � � l: r r r �� `-� �- E� �� I ' :� �_ �. ■ '� ' � �. � ., - - � .. � � � ., _. .. ,■- �. , �ti - � �. .: �. ,� :: ' - �f � � � �, rr �� .. 1 . � l n �} �� _� .. ' � � � I � � .. "! Y' 1 r � - +"