AG 18-105RETURN TO: Jeri-Lynn Clark EXT: 2401
CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM
1. ORIGINATING DEPT./DIV: COMMUNITY DEVELOPMENT — COMM. SVCS.
2. ORIGINATING STAFF PERSON: JERi-LYNN CLARK EXT: 2401 3. DATE REQ. BY: ASAP
4. TYPE OF DOCUMENT (CHECK ONE):
X CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ)
❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT
❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT
X GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES/ CDBG
❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS)
❑ ORDINANCE ❑ RESOLUTION
❑ CONTRACT AMENDMENT (AG#): ❑ INTERLOCAL
❑ OTHER CONCESSIONS
5. PROJECT NAME: FLAVOR OF FEDERAL WAY — PERFORMERS
6. NAME OF CONTRACTOR: MICHAEL COLEMAN
ADDRESS: 5726 FRANCIS CT SE, AUBURN, WA 98092 TELEPHONE 410-212-8295
E-MAIL: PHRESHXAIR(ZWMAIL.COM FAX:
SIGNATURE NAME: MICHAEL COLEMAN TITLE: ARTIST
7. EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑
ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS
8. TERM: COMMENCEMENT DATE: UPON EXECUTION COMPLETION DATE 8/18/18
9. TOTAL COMPENSATION $50.00 (INCLUDE EXPENSES AND SALES TAX, IF ANY)
(IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES)
REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $
IS SALES TAX OWED ❑ YES ❑ NO IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY
❑ PURCHASING: PLEASE CHARGE TO: 001-7300-083-562-10-410
10. DOCUMENT/CONTRACT REVIEW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED
❑ PROJECT MANAGER
❑ DIRECTOR
❑ RISK MANAGEMENT (IF APPLICABLE)
❑ LAW /4 /} I,y 2®l 4
11. COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE:
12. CONTRACT SIGNATURE ROUTING �j
l DATE REC'D:
❑ SENT TO VENDOR/CONTRACTOR DATE SENT:
❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSE, EXHIBITS
❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE
(Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.)
INITIAL / DATE SIGNED
LAW DEPARTMENT_ / Z918
f�^ SIGNATORY (MAYOR OR DIRECTOR)} /
f� CITY CLERK `
ASSIGNED AG# A # -�
[� SIGNED COPY RETURNED DATE SENT
COMMENTS:
4k 1b
CITY OF CITY HALL
'%`...
Federal Way 33325 8th Avenue South
Federal Way. WA 98003-6325
(253) 835-7000
www cityoflederalway com
PERFORMANCE AGREEMENT
FOR
FLAVOR OF FEDERAL WAY
This Performance Agreement ("Agreement") is made between the City of Federal Way, a Washington
municipal corporation ("City"), and Phresh Air, a sole proprietor ("Artist"). The City and Artist (together
"Parties") are located and do business at the below addresses which shall be valid for any notice required under
this Agreement:
PHRESH AIR:
Michael Coleman
5726 Francis Court SE
Auburn, WA 98092
410-212-8295 (telephone)
phreshxair@grnail.com
The Parties agree as follows:
CITY OF FEDERAL WAY:
Jeri -Lynn Clark
33325 8th Ave. S.
Federal Way, WA 98003-6325
(253) 835-2401 (telephone)
(253) 835-2409 (facsimile)
Jeri -Lynn. ClarkAcityoffederalway. com
1. AGREEMENT. This Agreement is effective the date both parties have executed this document. With
regard to the subject matter of this Agreement, the understanding between the parties consists of-
This
f
This Performance Agreement
Exhibit A Engagement
Exhibit B Compensation
2. ENGAGEMENT.
2.1 The Artist will perform the engagement more specifically described in Exhibit "A," attached
hereto and incorporated by this reference ("Engagement") and the City will provide a venue for the Artist to
perform the Engagement.
3. TERMINATION.
3.1 This Agreement is in effect until the end of the next business day following the Engagement.
3.2 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. If the Artist fails
to maintain required insurance policies, breaches confidentiality, or materially violates the Equal Opportunity
Employer provisions of this Agreement, the City may terminate this Agreement immediately and such failure
may result in the Artist being ineligible for future City agreements.
PERFORMANCE AGREEMENT - 1 - 4/2018
#•
CITY OF CITY HALL
Federal Way 33325 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www dryoffederalway com
3.3 Force Majeure. If holding a performance is prevented because of earthquake, fire, flood, riot,
travel disruption, strike, lockout, breakdown of mechanical or electrical equipment, order of any authority,
death, proven illness or injury, or any similar cause beyond the control of either party, both Parties are relieved
of their duties under this Agreement and neither party is responsible for the expenses of the other resulting from
the cancelation of the Engagement.
4. COMPENSATION.
h
4.1 Amount. In return for performing the Engagement, the City shall pay the Artist the amount
shown in Exhibit `B," attached hereto and incorporated by this reference. The Artist 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. The City shall pay the Artist by the method shown in Exhibit `B," attached
hereto and incorporated by this reference.
4.3 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.
4.4 Final Payment: Waiver of Claims. Artist's acceptance of final payment shall constitute a waiver
of any and all claims, except those previously and properly made and identified by Artist as unsettled at the time
request for final payment is made.
5. ROYALTIES AND LICENSE FEES. Artist shall be responsible for payment of royalties or license
fees required in connection with performance of works on Artist's program.
6. RECORDING AND BROADCASTING. The City shall not record or transmitted by any medium or
method any performance of the Engagement without the written consent of the Artist.
7. MERCHANDISE. The Artist may, through a separate agreement, rent a booth for selling souvenir
programs and other merchandise. The City has a right to zero percent of the proceeds from such sales.
8. RELEASE AND INDEMNIFICATION.
8.1 Waiver and Release. Artist and Artist' affiliates do hereby release and forever discharge,
indemnify, and hold harmless the City from any and all liability, claims, actions and demands of whatever kind
or nature, to or by any and all persons or entities, including without limitation, their respective agents or
representatives, either in law or equity, including costs and attorney fees, which arise or may hereafter arise
from Artist's and affiliates' acts, errors, or omissions in connection with the use of the Park for the Project.
8.2 Scope and Construction. Artist expressly agrees that this Release is intended to be as broad and
inclusive as permitted by the laws of the State of Washington, and that this Release shall be governed by and
interpreted in accordance with the laws of the State of Washington. Artist agrees that in the event that any
clause or provision of this Release shall be held to be invalid by any court of competent jurisdiction, the
invalidity of such clause or provision shall not otherwise affect the remaining provisions of this Release which
PERFORMANCE AGREEMENT - 2 - 4/2018
CITY OF CITY HALL
`... Fe d e ra I Way 8th Avenue South
'�Federal Way. WA 98003-6325
(253) 835-7000
www cayoffederalway com
shall continue to be enforceable. Artist has had the opportunity to have this Release reviewed by an attorney
and has fully read and understands the terms and provisions of this Release.
8.3 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.
9. INSURANCE. The Artist agrees to carry insurance for liability which may arise from or in connection
with the performance of the services or work by the Artist, 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: /
9.1. Minimum Limits. The Artist agrees to carry as a minimum, the follo ng insurance, in such
forms and with such carriers who have a rating that is satisfactory to the City:
a. Commercial general liability insurance covering liabilit arising from premises,
operations, independent Artists, products -completed operations, stop gap li ility, personal injury, bodily
injury, death, property damage, products liability, advertising injury, an lability assumed under an insured
contract with limits no less than $1,000,000 for each occurrence and ,000,000 general aggregate.
b. Workers' compensation and employer's liab' ity insurance in amounts sufficient pursuant
to the laws of the State of Washington;
C. Automobile liability insurance col
with a minimum combined single limits in the minimum
per accident for bodily injury, including personal injures
7oltsll owned, non -owned, hired and leased vehicles
required to drive under Washington State law
death, and property damage.
9.2. No Limit of Liability. Artist's mai enance of insurance as required by the agreement shall not
be construed to limit the liability of the Artist t he coverage provided by such insurance, or otherwise limit the
City's recourse to any remedy available at la or in equity. The Artist's insurance coverage shall be primary
insurance as respect the City. Any insuran , self-insurance, or insurance pool coverage maintained by the City
shall be excess of the Artist's insurance d shall not contribute with it.
9.3. Additional InsuredVerification. The City shall be named as additional insured on all
commercial general liability ins
ce policies. Concurrent with the execution of this Agreement, Artist shall
provide certificates of insuranc for all commercial general liability policies attached hereto as Exhibit "C" and
incorporated by this referenc . At City's request, Artist shall furnish the City with copies of all insurance
policies and with evidence f payment of premiums or fees of such policies. If Artist's insurance policies are
"claims made," Artist s be required to maintain tail coverage for a minimum period of three (3) years from
the date this Agreeme is actually terminated or upon project completion and acceptance by the City.
9.4 S ival. The provisions of this Section shall survive the expiration or termination of this
Agreement. M , C ,
10. PUBLIC RECORDS ACT. The City of Federal Way (City) will treat the Artist's information as it
would its own and will only disclose the Artist's information if required by law. Under Washington State Law
(RCW Chapter 42.56, the Public Records Act) all materials received or created by the City of Federal Way are
considered public records. The Artist's information becomes a public record when received by the City.
The Artist understands that any confidential information about the Artist or the Artist's hospitality requirements
should not be communicated to the City of Federal Way in writing.
The State of Washington's Public Records Act requires that public records must be promptly disclosed by the
City upon request unless that RCW or another Washington State statute specifically exempts records from
PERFORMANCE AGREEMENT - 3 - 4/2018
CITY OF CITY HAIL
'**..._ Federal Way 33325 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www cityoffederalway com
disclosure. Exemptions are narrow and explicit and are listed in Washington State Law (Reference RCW 42.56
and RCW 19.108).
All information regarding the City obtained by Artist in performance of this Agreement shall be considered
confidential subject to applicable laws. Breach of confidentiality by the Artist may be grounds for immediate
termination. All records submitted by the City to the Artist will be safeguarded by the Artist. The Artist will
fully cooperate with the City in identifying, assembling, and providing records in case of any public records
disclosure request.
11. CONFIDENTIALITY. All information regarding the City obtained by Artist in performance of this
Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Artist
may be grounds for immediate termination. All records submitted by the City to the Artist will be safeguarded
by the Artist. The Artist will fully cooperate with the City in identifying, assembling, and providing records in
case of any public records disclosure request.
12. INDEPENDENT CONTRACTOR / EMPLOYEE CONDITIONS.
12.1 Independence. The Parties intend that the Artist shall be an independent contractor and that the
Artist 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 Artist 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 Artist, shall not be deemed to convert this Agreement to an employment
contract. If the Artist is a sole proprietorship or if this Agreement is with an individual, the Artist agrees to
notify the City and complete any required form if the Artist retired under a State of Washington retirement
system and agrees to indemnify any losses the City may sustain through the Artist's failure to do so.
12.2 Safety. Artist shall take all necessary precautions and shall be responsible for the safety of the
Artist and Artist's associates in the performance of the Engagement. Artist 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 WAC), and General Occupational Health Standards
(Chapter 296-62 WAC).
12.3 Risk. Artist 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.
13. EQUAL OPPORTUNITY EMPLOYER. In all services, programs, activities, hiring, and employment
made possible by or resulting from this Agreement or any subcontract, there shall be no discrimination by Artist
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.
Artist 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
PERFORMANCE AGREEMENT - 4 - 4/2018
CITY OF CITY HALL
Federal Way Feder 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www cityoffederalway com
CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non-
discrimination.
14. 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 Artist 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 Artist shall comply with and perform the Engagement 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 of 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 Engagement is
essential to the Artist'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 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
PERFORMANCE AGREEMENT - 5 - 4/2018
CITY OF CITY HALL
'�..., 33325 8th Avenue South
Federal Way
Federal Way. WA 98003-6325
(253) 835-7000
www cityoffederalway cam
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 legal action arising from this Agreement, each Party shall pay all its legal costs
and attorney's fees and expenses incurred in defending or bringing such action, including all appeals, in
addition to any other recovery or award provided by law; provided, 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 Artist 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 of mutual execution" hereof.
[Signature page follows]
PERFORMANCE AGREEMENT - 6 - 4/2018
Federal Way
CITY HALL
33325 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www cityoffederalway com
IN WITNESS, the Parties execute this Agreement below, effective the last date written below.
CITY OF FEDERAL WAY: ATTEST:
Jim Ferrel a or S ie Cou"CMlerk
DATE: 1
PHRESH A/I,R:: /
By: /� UJ -r -
Printed Name: M1,Cbad (
Title: Entix 6 nef
DATE:
STATE OF WASHINGTON)
ss.
COUNTY OF )
APPROVED AS TO FORM:
e�L- 1Qj,4: �
J. Ryan Call, City Attorney
On this day personally appeared before me, 11N VA&Xt IMaw , to me known to be
the individual described in and who executed the foregoing instrument, and A oath swore that he/she/they
executed the foregoing instrument as his/her/their free and voluntary act and deed for the uses and purposes
therein mentioned.
GIVEN my hand and official seal this qday 4
4%'t-YNIV C`.,
UsOTAtf��, i
in111 L%
Notary's signature
Notary's printed name
My commission expires
of_Washington.
PERFORMANCE AGREEMENT - 7 - 4/2018
I
CITY
Way
EXHIBIT "A"
ENGAGEMENT
The Artist shall perform the following Engagement:
1. Performance.
The Engagement shall consist of the following performance(s).
Performance Performance
Date(s) Time(s)
August 18, 2018 1:25PM
Length of performance: 25 minutes
2. Venue.
Location: Town Square Park
31600 Pete von Reichbauer Way South
Federal Way, Washington
Seating capacity: N/A
Stage: N/A
The City will provide: N/A
3. Sound Check time:
1:15PM
CITY HALL
33325 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www cityoffederalway corn
PERFORMANCE AGREEMENT - 8 - 4/2018
` CITY OF CITY HALL
Fe d e ra I Way 33325 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www cityoffederalway com
EXHIBIT "B"
COMPENSATION
1. Total Compensation: In return for performing the Engagement, the City shall pay the Artist an amount
of $50.00. Artist is responsible for Washington State sales tax.
2. Method of Compensation: The City will pay Artist a one-time, lump sum fee upon completion of the
Engagement. The Artist shall submit an invoice in the form specified by the City. The Payment shall be made
by the City within thirty (30) days after receipt and approval by the appropriate City representative of the
invoice. The City may withhold payment if the performance of the Engagement does not meet the requirements
of the Agreement.
PERFORMANCE AGREEMENT - 9 - 4/2018