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HomeMy WebLinkAbout02/03/2015 05G Tennis Programs Agreement with the United States Tennis Association-Pacific NorthwestBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 5.G. For Meeting of: February 03, 2015 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ITEM TITLE: SUBMITTED BY: SUMMARY EXPLANATION: Resolution authorizing agreement with United States Tennis Association -Pacific Northwest for purposes of providing tennis programs for residents in conjunction with the Parks and Recreation Division Scott Schafer, Director of Public Works Ken Wilkinson, Parks and Recreation Manager - (509) 576- 6416 United States Tennis Association -Pacific Northwest (USTA-Pacific Northwest) has for many years promoted the sport of tennis within the United States, and is able and willing to provide such services for residents of the City in conjunction with the City's Parks & Recreation Division. The City will allow free access for USTA-Pacific Northwest to Kissel Park and Franklin tennis courts and community center gyms in accordance with an agreed schedule. In turn, USTA- Pacific Northwest will tender and pay to the City twenty percent of net revenue generated from recreational programs conducted within the City. Attached is a cover memo and the Agreement with the United States Tennis Association -Pacific Northwest to provide tennis programs in conjunction with City of Yakima Parks and Recreation for the period from January 1, 2015 through January 31, 2018. Resolution: X Other (Specify): Contract: X Start Date: January 1, 2015 Item Budgeted: NA Funding Source/Fiscal Impact: Strategic Priority: Ordinance: Contract Term: 3 year End Date: January 31, 2018 Amount: USTA-Pacific Northwest will tender and pay to the City twenty percent of net revenue generated from recreational programs conducted within the City. Partnership Development Insurance Required? Yes Mail to: Jenise Sanders, Parks and Recreation Admin. Secretary Phone: 509-575-6164 APPROVED FOR SUBMITTAL: RECOMMENDATION: City Manager Yakima Parks and Recreation staff recommend City Council approval of this agreement with United States Tennis Association -Pacific Northwest. ATTACHMENTS: Description Upload Date Cover memo - USTA 1/16/2015 Resolution - USTA Agreement 1/13/2015 Agreement USTA 1/12/2015 Type Cover Memo Resollution Contract Memorandum Date: January 15, 2015 To: Honorable Mayor, Members of City Council, City Manager From: Scott Schafer, Public Works Director Ken Wilkinson, Parks and Recreation Manager Subj ect: Agreement between City of Yakima and United States Tennis Association -Pacific Northwest USTA-Pacific Northwest has for many years promoted the sport of tennis within the United States, and is able and willing to provide such services for residents of the City in conjunction with the City's Parks & Recreation Division. City will provide the following services: Free access for USTA-Pacific Northwest to Kissel Park and Franklin tennis courts and community center gyms in accordance with an agreed schedule. Priority to USTA-Pacific Northwest when scheduling such facilities for tennis programs and use. Work with USTA-Pacific Northwest to attract and recruit seasonal staff and volunteers; those hired shall be part-time employees of USTA-Pacific Northwest, and not employees of City. On-site or nearby storage space for USTA-Pacific Northwest equipment and program materials. Co -promote program offerings through City platforms including free advertisement on website, seasonal program books, online catalogues, email blast among others. Allow usage of City of Yakima logos and marks and be listed official partner. USTA-Pacific Northwest will provide the following services: Schedule and deliver play opportunities for all ages and ability levels in accordance with the "Menu of Program Offerings" and goals set forth in USTA-Pacific Northwest's Proposal. Recruit, train, schedule and pay selected seasonal instructors and coaches. Such seasonal instructors and coaches shall be deemed for all purposes to be employees solely of USTA-Pacific Northwest. Process participant registrations and payments through USTA-Pacific Northwest online system. Provide free age/skill-appropriate tennis equipment during all USTA-Pacific Northwest programs and activities. Market and promote City tennis programs in accordance with the terms of USTA-Pacific Northwest's Proposal. Allow City usage of USTA logos and marks and list City as official USTA-Pacific Northwest partner. Address all general program inquiries and administrative details of USTA-Pacific Northwest programs. USTA-Pacific Northwest will tender and pay to City twenty percent (20%) of USTA-Pacific Northwest's net revenue generated from USTA-Pacific Northwest's recreational programs conducted within the City. Payment of such amount shall be in accordance with a schedule mutually agreed by the parties and shall be accompanied by a report detailing gross revenues, expenditures and calculation of net revenue. Unless the parties mutually agree otherwise, payment shall be made quarterly, with the calendar quarters ending March 31, June 30, September 30 and December 31 of each year. A RESOLUTION RESOLUTION NO. R -2015 - authorizing and directing the City Manager to execute Agreement between the City of Yakima and the United States Tennis Association -Pacific Northwest for the purpose of providing tennis programs for residents of the City in conjunction with the City of Yakima Parks and Recreation Division. WHEREAS, the City is a municipal corporation of the State of Washington with City Hall located at 129 North 2nd Street, Yakima, Washington 9890; and WHEREAS, USTA-Pacific Northwest is a nonprofit organization with regional headquarters at 9746 SW Nimbus Ave., Beaverton, OR 97008; and WHEREAS, USTA-Pacific Northwest has for many years promoted the sport of tennis within the United States, and is able and willing to provide such services for residents of the City in conjunction with the City's Parks & Recreation Division; and WHEREAS, City and USTA-Pacific Northwest desire to enter into an agreement for the provision of such services by USTA-Pacific Northwest; and WHEREAS, it is in the best interest of the City of Yakima to execute the attached agreement, now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated Agreement between the City of Yakima and the United States Tennis Association -Pacific Northwest" for the purpose of providing tennis programs for residents of the City in conjunction with the City of Yakima Parks and Recreation Division for the period from January 1, 2015 through January 31, 2018. ADOPTED BY THE CITY COUNCIL this 3rd day of February, 2015. ATTEST: Micah Cawley, Mayor Sonya Claar Tee, City Clerk AGREEMENT BETWEEN THE CITY OF YAKIMA AND UNITED STATES TENNIS ASSOCIATION -PACIFIC NORTHWEST THIS AGREEMENT (hereinafter "Agreement") is made and entered into by and between the City of Yakima (hereinafter the "City") a Washington municipal corporation, and United States Tennis Association -Pacific Northwest (hereinafter "USTA-Pacific Northwest"). I. Recitals A. City is a municipal corporation of the State of Washington with City Hall located at 129 North 2nd Street, Yakima, Washington 98901. B. USTA-Pacific Northwest is a nonprofit organization with regional headquarters at 9746 SW Nimbus Ave., Beaverton, Oregon 97008. C. USTA-Pacific Northwest has for many years promoted the sport of tennis within the United States, and is able and will to provide such services for residents of the City in conjunction with the City's Parks & Recreation Division. D. City and USTA-Pacific Northwest desire to enter into an agreement for the provision of such services by USTA-Pacific Northwest. II. Agreement WHEREFORE, in consideration of the mutual covenants, conditions and benefits herein the parties agree as follows: 1. Services. City and USTA-Pacific Northwest shall cooperatively provide the following services: A. City Services. City will provide the following services: • City will provide free access for USTA-Pacific Northwest to Kissel Park and Franklin tennis courts and community center gyms in accordance with an agreed schedule. City will provide priority to USTA-Pacific Northwest when scheduling such facilities for tennis programs and use. • Work with USTA-Pacific Northwest to attract and recruit seasonal staff and volunteers; those hired shall be part-time employees of USTA-Pacific Northwest, and not employees of City. • On-site or nearby storage space for USTA-Pacific Northwest equipment and program materials. 1 • Co -promote program offerings through City platforms including free advertisement on website, seasonal program books, online catalogues, email blast among others. • Allow usage of City of Yakima logos and marks and be listed official partner B. USTA-Pacific Northwest Services. USTA-Pacific Northwest will provide the following services: • Schedule and deliver play opportunities for all ages and ability levels in accordance with the "Menu of Program Offerings" and goals set forth in USTA- Pacific Northwest's Proposal attached hereto as Exhibit "A" and incorporated herein by this reference. • Recruit, train, schedule and pay selected seasonal instructors and coaches. Such seasonal instructors and coaches shall be deemed for all purposes to be employees solely of USTA-Pacific Northwest. • Process participant registrations and payments through USTA-Pacific Northwest online system. • Provide free age/skill-appropriate tennis equipment during all USTA-Pacific Northwest programs and activities. • Market and promote City tennis programs in accordance with the terms of USTA-Pacific Northwest's Proposal set forth in Exhibit "A". • Allow City usage of USTA logos and marks and list City as official USTA-Pacific Northwest partner. • Address all general program inquiries and administrative details of USTA-Pacific Northwest programs. • USTA-Pacific Northwest will tender and pay to City twenty percent (20%) of USTA-Pacific Northwest's net revenue generated from USTA-Pacific Northwest's recreational programs conducted within the City. Payment of such amount shall be in accordance with a schedule mutually agreed by the parties and shall be accompanied by a report detailing gross revenues, expenditures and calculation of net revenue. Unless the parties mutually agree otherwise, payment shall be made quarterly, with the calendar quarters ending March 31, June 30, September 30 and December 31 of each year. 3. Consideration. The mutual promises, conditions and benefits stated above constitute good and sufficient consideration for this Agreement. 2 4. Term. This Agreement shall commence on January 1, 2015, and shall terminate at midnight on January 31, 2018, unless sooner terminated in accordance with Section 18 of this Agreement. 5. Status of USTA-Pacific Northwest. USTA-Pacific Northwest and the City understand and expressly agree that USTA-Pacific Northwest is an independent contractor in the performance of each and every part of this Agreement. No officer, employee, volunteer, and/or agent of USTA- Pacific Northwest shall act on behalf of or represent him or herself as an agent or representative of the City. USTA-Pacific Northwest, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. USTA-Pacific Northwest 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. USTA-Pacific Northwest and its officers, employees, volunteers, agents and/or subcontractors shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between USTA-Pacific Northwest and the City. 6. Inspection and Audit — Public Disclosure. USTA-Pacific Northwest shall maintain books, accounts, records, documents and other evidence pertaining to the consideration paid under this Agreement in accordance with generally accepted accounting practices. All such books of account and records required to be maintained by this Agreement shall be subject to inspection and audit by representatives of the City and/or of the Washington State Auditor at all reasonable times, and USTA-Pacific Northwest shall afford the proper facilities for such inspection and audit. Such books of account and records may be copied by representatives of the City and/or of the Washington State Auditor where necessary to conduct or document an audit. Provider shall preserve and make available all such books of account and records for a period of three (3) years after final payment under this Agreement. USTA-Pacific Northwest understands and agrees that records maintained by USTA-Pacific Northwest pertaining to programs conducted by USTA-Pacific Northwest in and on behalf of the City will be considered public records subject to disclosure under the State of Washington Public Records Act, Chapter 42.56 RCW. USTA-Pacific Northwest will cooperate with City to assure timely production and disclosure of any records in USTA-Pacific's possession subject to disclosure under the Public Records Act. 7. Taxes and Assessments. USTA-Pacific Northwest shall be solely responsible for compensating its employees and for paying all 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 this Agreement, USTA-Pacific Northwest shall pay the same before it becomes due. 8. Nondiscrimination Provision. During the performance of this Agreement, USTA-Pacific Northwest shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of race, color, sex, religion, national origin, creed, age, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, political affiliation, or the presence of any sensory, mental or physical handicap, and any other 3 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. 9. The Americans with Disabilities Act. USTA-Pacific Northwest agrees to comply with the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti -discrimination law as contained in RCW Chapter 49.60 and its implementing regulations. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, state and local government services, and telecommunications. 10. Compliance With Law. USTA-Pacific Northwest agrees to perform all services under and pursuant to 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. 11. No Conflict of Interest. USTA-Pacific Northwest covenants that neither it nor its employees have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. USTA-Pacific Northwest further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 12. No Insurance. It is understood the City does not maintain liability insurance for USTA- Pacific Northwest and/or its employees. 13. Indemnification and Hold Harmless. USTA-Pacific Northwest agrees to protect, defend, indemnify, exonerate, and hold harmless the City, its elected and appointed officials, agents, officers, and employees (hereinafter "parties protected") from (1) any and all claims, demands, liens, lawsuits, administrative and other proceedings, and (2) any and all judgments, awards, losses, liabilities, damages (including punitive or exemplary damages), penalties, fines, costs and expenses (including legal fees, costs, and disbursements) for, arising out of, or related to any actual or alleged death, injury, damage or destruction to any person or any property (including but not limited to any actual or alleged violations of civil rights) to the extent solely or concurrently caused by, arising out of, or related to any actual or alleged act, action, default or omission (whether intentional, willful, reckless, negligent, inadvertent, or otherwise) resulting from, arising out of, or related to USTA-Pacific Northwest's provision of services, work or materials pursuant to this Agreement. USTA-Pacific Northwest further agrees that it specifically and expressly waives its immunity under industrial insurance, Title 51 RCW, or immunity under any other provision of law to the extent of the obligations assumed to the parties protected hereunder. 14. Insurance. On or before the effective date of this Agreement, USTA-Pacific Northwest shall provide the City with a certificate of insurance as proof of liability insurance in the amount of Two Million Dollars ($2,000,000.00) that clearly states who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted). Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected and appointed officials, 4 officers, agents, employees and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide. The insurance company shall be either admitted in the State of Washington or a licensed surplus lines insurance company in the State of Washington. If the City is damaged by the failure of USTA-Pacific Northwest to maintain the above insurance or to so notify the City, then USTA-Pacific Northwest shall bear all costs attributable thereto. If requested, USTA-Pacific Northwest shall provide the City with a complete copy of the policy. 15. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by USTA-Pacific Northwest 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 USTA-Pacific Northwest stated herein. 16. Non -Waiver. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the 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. 17. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 18. Termination. Either party may terminate this Agreement, with or without cause, by giving the other party thirty (30) days prior written notice of termination. In the event of such termination, City shall be compensated for twenty percent (20%) of USTA-Pacific Northwest's net revenues as described in Section 1(B) through the effective date of termination. The provisions of Section 13 pertaining to obligations of indemnity and hold harmless shall survive termination of this Agreement. 19. Survival. Any provision of this Agreement that 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. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: Ken Wilkinson Parks & Recreation Manager City of Yakima Parks & Recreation Division 2301 Fruitvale Boulevard Yakima, WA 98902 (509) 575-6020 5 TO USTA-Pacific Northwest: USTA-Pacific Northwest 9746 SW Nimbus Ave. Beaverton, Oregon 97008. or to such other 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. 21. Third Parties. The City and USTA-Pacific Northwest are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide, any right or benefit, whether directly or indirectly or otherwise, to third persons. 22. 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. USTA-Pacific Northwest's Proposal attached hereto as Exhibit "A" and incorporated herein shall be deemed part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of such Proposal, the provisions of this Agreement shall control. 25. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 26. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA USTA-PACIFIC NORTHWEST By: By: Tony O'Rourke, City Manager China Kirk, Associate Executive Director Date: Date: ATTEST: Sonya Claar Tee, City Clerk 6