HomeMy WebLinkAboutYakima Maker Space - Promotion Agreement •
PROMOTION AGREEMENT
By and Between
CITY OF YAKIMA
And
YAKIMA MAKER SAPCE
This PROMOTION AGREEMENT (hereinafter the "Agreement ") is executed by and between the City of
Yakima, Washington, a municipal corporation (hereinafter the "City ") and the Yakima Maker Space, a
Washington nonprofit corporation (hereinafter the "Association ").
I. Recitals
A. The City desires to contract with the Association to assist in organizational development
and in presenting arts and science educational opportunities for residents of the City of Yakima.
B. The Association is a nonprofit corporation in the State of Washington whose primary
purpose is to provide tools, work space and educational and training opportunities to next generation of
entrepreneurs in Yakima benefitting the residents of the City and the City's downtown.
C. The parties agree that Association will administer the funds and activities described below
to promote educational opportunities in arts and sciences within the City in accordance with the terms and
conditions of this Agreement.
II. Agreement
WHEREFORE, in consideration of the mutual covenants, promises and conditions set forth herein, the City
and the Association agree as follows:
1. Payment of Funds by City. In compensation for the services provided by the Association
under this Agreement, the City shall pay the Association an Administration Fee. The amount of the
Administration Fee shall be five thousand dollars ($5,000.00).
2. Term of Agreement. This Agreement shall commence following full execution by the parties and
shall terminate at midnight, December 31, 2016.
3. Scope of Services. The Association shall use the funds received from the City to support the
creative potential of the Yakima Valley by providing the tools to make almost anything, space to build ideas,
and a co- learning environment for all ages. The organization shall hire and /or contract an executive director
in 2016. Nothing in this Agreement, or the use of the funds from this Agreement shall create an
employer - employee relationship between any person associated with Association and the City.
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4. Yakima Maker Space Action Plan and Proposed Budget. The Association shall prepare and
provide to City a written Action Plan and proposed budget on or before October 15th, 2016 listing and
describing the Association's plans, programs and timelines to provide or listing proved services described in
Section 3 above. Association will consult with City in the preparation of such Action Plan, and City reserves
the right to require modifications of such Action Plan if the City determines that such modifications are
reasonably necessary to accomplish the purposes of this Agreement. The association will provide a written
update or the organization's progress to the Yakima City Council no later than December 1st, 2016.
5. Termination of Agreement. This Agreement may be terminated by either party for any reason
upon thirty (30) calendar days' advance written notice to the other party. Upon the effective date of
termination, City shall have no further obligation to pay any remaining funds to Association except for those
funds necessary to defray costs of any contracts with third parties entered into by Association for the sole
benefit of City as set forth in the Action Plan. Notwithstanding the above, upon termination of this
Agreement by City pursuant to this Section 5, Association shall use best efforts to terminate any contract for
the sole benefit of City entered into by Association for the sole benefit of City unless otherwise directed in
writing by City.
6. Property and Eauipment. The parties do not intend to purchase property and equipment
with the proceeds paid to Association pursuant to this Agreement. Unless otherwise agreed, any property
and equipment purchased by Association shall remain the property of Association.
7. Records and Accounts.
a. The Association shall maintain (in accordance with generally accepted accounting practices)
books, accounts, records, documents and other materials related directly or indirectly to the
costs, expenses, and expenditures incurred and /or made pursuant to this Agreement. All such
books, accounts, records, documents and other materials shall be subject to inspection and
audit at reasonable times by representatives of the City of Yakima and /or of the Washington
State Auditor. The Association shall make such books, accounts, records, documents and
other materials available and afford the proper facilities for such inspection and /or audit within
forty -eight (48) hours of inspection /audit notification from any of said local and /or state
government representatives. Said books, accounts, records, documents and other materials
may be copied by said local and /or state government representatives as part of such an
inspection /audit. The Association shall preserve and make available all books, accounts,
records, documents and other materials for a period of at least three (3) years after termination
of Agreement.
b. The records relating to this Agreement and its Scope of Services shall at all times be subject to
inspection by and with the approval of the City, but the making of (or failure or delay in making)
such inspection or approval shall not relieve Association of responsibility for the performance of
the Scope of Services in accordance with this Agreement, notwithstanding the City's knowledge
of defective or non - complying performance, its substantiality or the ease of its discovery.
Association shall provide the City sufficient, safe and proper facilities and /or send copies of the
requested documents to the City. Association's records relating to the Scope of Services will be
provided to the City upon the City's request.
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c. Association shall promptly furnish the City with such information and records which are related
to the Scope of Services of this Agreement as may be requested by the City. Until the
expiration of six (6) years after final payment of the compensation payable under this Contract,
or the services provided, whichever is later, or for a longer period if required by law or by the
Washington State Secretary of State's record retention schedule, Association shall retain and
provide the City access to (and the City shall have the right to examine, audit and copy) all of
Association's books, documents, papers and records which are related to the Scope of Services
performed by Association under this Agreement.
d. All records relating to Association's Scope of Services under this Agreement must be made
available to the City, and the records relating to the Scope of Services are City records. They
must be produced to third parties, if required pursuant to the Washington State Public Records
Act, Chapter 42.56 RCW, or by law. All records relating to Association's services under this
Agreement must be retained by Association for the minimum period of time required pursuant to
the Washington State Secretary of . State's records retention schedule.
e. The terms of this section shall survive any expiration or termination of this Agreement.
8. Insurance. It is understood the City does not maintain liability insurance for the Association and /or
its officers, employees, agents and /or subcontractors.
Association is required to maintain insurance as follows:
At all times during performance of this Agreement and the Scope of Services, Association shall secure and
maintain in effect insurance to protect the City and Association from and against any and all claims,
damages, losses and expenses arising out of or resulting from the performance of this Agreement.
Association shall provide and maintain in force insurance in limits no less than One Million Dollars
($1,000,000.00) per occurrence combined single limit bodily injury and property damage, and One Million
Dollars ($1,000,000.00) general aggregate. The certificate shall clearly state who the provider is, the
coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy
shall be in effect for the duration of this Agreement. The policy shall name the City of Yakima, its elected
and appointed officials, employees, agents, attorneys and volunteers as additional insureds. The
Association shall first give the City notice in the event the insurer plans to cancel or change the insurance.
9. Hold Harmless.
a. The Association agrees to protect, defend, indemnify, and hold harmless the City and its
officers, elected officials, employees and agents from any and ali claims, demands,
losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all
judgments, awards, costs and expenses (including attorneys' fees and disbursements)
caused by or occurring by reason of any negligent act and /or omission of the Association,
its officers, employees, agents, and /or subcontractors, arising out of or in connection with
duties, obligations, and services required of the Association under this Agreement.
b. In the event that both the Association and the City are negligent, the Association's liability
for indemnification of the City shall be limited to the contributory negligence for any
resulting suits, actions, claims, liabilities, damages, judgments, costs and expenses
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(including reasonable attorneys' fees) that can be apportioned to the Association, its
officers, employees, agents and /or subcontractors.
c. Nothing contained in this Section or this Agreement shall be construed to vest a right of
defense and /or indemnification in any third party.
d. The provisions of this Section or this Agreement shall survive the termination or expiration
of this Agreement.
10. Independent Contractor. In performing this Agreement, the Association is an independent
nnntrar not subject to control or direction from the City except for such oversight as is herein described
and set forth by City ordinance. The Association expressly represents, warrants and agrees that its status
as an independent contractor in the performance of the work and services required under this Agreement is
consistent with and meets the six -part independent contractor test set forth in RCW 51.08.195. The
Association and its officers, employees, agents, subcontractors and volunteers shall make no claim of City
employment nor shall claim against the City any related employment benefits, social security and /or
retirement benefits.
11. Taxes and Assessments. The Association shall be solely responsible for compensating its
officers, employees, agents and /or subcontractors and for paying at related taxes, deductions and
assessments, including but not limited to federal income tax, FICA, social security tax, assessments for
unemployment and industrial injury, and other deductions from income which may be required by law or
assessed against either party as a result of this Agreement. In the event the City is assessed a tax or
assessment as a result of or in connection with the duties, obligations and services required of the
Association under this Agreement, the Association shall pay the same before it becomes due.
12. Nondiscrimination. During the performance of this Agreement, the Association shall not
discriminate on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability,
honorably discharged veteran or military status, pregnancy, sexual orientation, gender identity, or any other
classification protected under federal, state, or local law. This provision shall include but not be limited to
the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination,
rates of pay or other forms of compensation, selection for training, and the provision of services under this
Agreement. Association agrees to comply with the applicable provisions of State and Federal Equal
Employment Opportunity and Nondiscrimination statutes and regulations.
13. The Americans with Disabilities Act. The Association shall comply with the Americans
with Disabilities Act of 1990, 42 U.S.0 §§ 12101 et seq.( "ADA ") and its implementing regulations and
Washington state's anti - discrimination law as set forth in Chapter 49.60 RCW ( "WLAD ") and its
implementing regulations, with regard to the provision of services under this Agreement. The ADA and the
WLAD provide comprehensive civil rights to individuals with disabilities in the area of employment, public
accommodations, public transportation, state and local government services and telecommunications.
14. Compliance with Law. The Association shall provide all services under this Agreement in full
compliance with any and all applicable laws, rules and regulations adopted or promulgated by any
governmental agency or regulatory body, whether federal, state, local or otherwise.
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15. Assignment. This Agreement, or any interest therein, or claim hereunder, shall not be assigned or
transferred in whole or in part by the Association to any other person or entity without the prior written
consent of the City. In the event that such prior written consent to an assignment is granted, then the
assignee shall assume all duties, obligations and liabilities of the Association as stated herein.
16. Severability.
a. If a court of competent jurisdiction holds'any part, term or provision of this Agreement to be
illegal or invalid in whole or in part, the validity of the remaining provisions shall not be
affected, and the parties' rights and obligations shall be construed and enforced as if the
Agreement did not contain the particular provision held to be invalid.
b. If any provision of this Agreement is in direct conflict with any statutory provision of the
State of Washington, that provision which may conflict shall be deemed inoperative and null
and void . insofar as it may conflict and shall be deemed modified to conform to such
statutory provision.
c. Should either party determine that the severed portions substantially alter this Agreement
so that the original intent and purpose of the Agreement no longer exists, said party may, in
its sole discretion, terminate this Agreement upon thirty (30) calendar days' advance written
. notice to the other party.
17. Non - waiver. A waiver by either party hereto of a breach by the other party hereto of any
covenant or condition of this Agreement shall not impair the right of the other party not in default to avail
itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict
performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein
given in any one or more instances, shall not be construed as a waiver or relinquishment of any such
agreement, covenant, condition or right.
18. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and
sent or hand - delivered to the parties at their respective addresses as follows:
To the City: Sean Hawkins, Economic Development Manager
City of Yakima
129 North 2n Street
Yakima, Washington 98901 '
To the Association: Johnathan Heath Lame
Yakima Maker Space
16 N. 1s Street
Yakima, Washington 98901
or to such addresses as the parties may hereafter designate in writing. Notices and /or demands shall be
sent by registered or certified mail, postage prepaid or hand - delivered.. ,.Such notices shall..be deemed
effective when mailed or hand - delivered at the addresses specified above..,, .... _ _ ..,. -_
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19. Survival. Any provision of this Agreement which imposes an obligation after termination or
expiration of this Agreement shall survive the term or expiration of this Agreement and shall be binding on
the parties to this Agreement.
20. Integration and Supersession. This Agreement sets forth all of the terms, conditions, and
agreements of the parties relative to the subject matter hereof and supersedes any and all such former
agreements, which are hereby declared terminated and of no further force and effect upon the execution
and delivery hereof. There are no terms, conditions, or agreements with respect thereto except as herein
provided, and no amendment or modification of this Agreement shall be effective unless reduced to writing
and executed by the parties.
21. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington.
22. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior
Court of Washington for Yakima County, Washington.
23. Dispute Resolution. The parties shall strive to resolve any dispute that may arise through mutual
cooperation and negotiation in good faith. If the dispute is not resolved through negotiation, the parties may
consider mediation or other form of dispute resolution but only where mutually agreed to in writing.
WHEREFORE, the parties have executed this Agreement as set forth below:
CITY OF YAKIMA YAKIMA MAKER SPACE
By: By: : i
tcr, „R City Manager Johnath. %' a -�be
cvcr _ Member S
Date: ai 3/ , 2016 Da t . / . 2016
ATTEST: �
7,0\ NS '1 h / r/1 t Aitati: fti/
y Sonya Claar Tee, City Clerk *.
b
CITY CONTRACT NO: VQ f 6 Z
RESOLUTION NO:. f /a
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