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HomeMy WebLinkAboutR-2016-049 Beautification, Improvement and Promotion Agreement with the Downtown Association of YakimaRESOLUTION NO. R-2016-049 A RESOLUTION authorizing an agreement with the Downtown Association of Yakima for beautification, improvement and promotion of downtown Yakima WHEREAS, the City has a deep and abiding interest in the maintenance, beautification, improvement and promotion of the City's downtown area; and WHEREAS, the City has expended significant resources toward the improvement of the sidewalks and general appearance of the City's downtown areas through the installation of sidewalks, street lighting, aesthetic improvements and planting displays; and WHEREAS, the City desires to contract with the Downtown Association of Yakima ("Association") for the development and promotion of economic development, beautification, tourism and recreational activities, opportunities and programs within the City; and WHEREAS, in accordance with RCW 82 73, which governs the Main Street Program, the City will be eligible to receive a credit on its 2016 Public Utility Tax liability of up to 75% of the total paid to the Association in 2016, capped at $100,000.00; and WHEREAS, the Association is a nonprofit corporation with charitable tax exempt status under Internal Revenue Code §501(c)(6) whose primary purpose is to promote economic development, educational and charitable opportunities within the City, and to administer a Main Street Program benefitting residents of the City and the City's downtown area; and WHEREAS, the parties agree that the Association will administer the funds and activities described below in Exhibit "A," attached hereto and fully incorporated herein, to promote economic development, downtown beautification, recreational activities and tourism within the City in accordance with the terms and conditions of this Agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: Section 1. The Yakima Downtown Development and Promotion Agreement attached hereto as Exhibit "A" and fully incorporated herein by this reference, is hereby approved Section 2. The City Manager is hereby authorized to execute and administer such Agreement for and on behalf of the City of Yakima, nogi, therefor ADOPTED BY THE CITY COUNCIL this 5th .a of April, 2016..,. ATTEST: 1 A A�Gutierrez, Mayor Sork4 Claar Tee, City Cle u jov4 YAKIMA DOWNTOW DEVELOPMENT AND PROMOTION AGREEMENT By and Between CITY OF YAKIMA And DOWNTOWN ASSOCIATION OF YAKIMA This YAKIMA DOWNTOWN DEVELOPMENT AND PROMOTION AGREEMENT (hereinafter the "Agreement") is executed by and between the City of Yakima, Washington, a municipal corporation (hereinafter the "City") and Downtown Association of Yakima, a Washington nonprofit corporation (hereinafter the "Association"). I. Recitals A. The City has a deep and abiding interest in the maintenance, beautification and preservation of the City's downtown area. B. The City has expended significant resources toward the improvement of the sidewalks and general appearance of the City's downtown areas through the installation of sidewalks, street lighting, aesthetic improvements and planting displays. C. The City desires to contract with the Association for the development and promotion of economic development, beautification, tourism and recreational activities, opportunities and programs within the City. D. In accordance with RCW 82.73 that governs the Main Street Program, the City will be eligible to receive a credit on its 2016 Public Utility Tax liability of up to 75% of the total paid to the Association in 2016, capped at $100,000.00. E. The Association is a nonprofit corporation with charitable tax exempt status under Internal Revenue Code §501(c)(6) whose primary purpose is to promote economic development, educational and charitable opportunities within the City, and to administer a Main Street Program benefitting residents of the City and the City's downtown area. F. The parties agree that Association will administer the funds and activities described below to promote economic development, downtown beautification, recreational activities and tourism within the City in accordance with the terms and conditions of this Agreement. 1 11. 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 (a) up to $23,813.08 to acquire flowers and related materials to perform and administer the City's downtown street flower basket program for year 2016, and (b) subject to the contingency stated below, up to $71,439.25 for performance and administration of the programs described in Section 3 below. The total compensation provided to the Association is $95,252 33. Upon approval of this Agreement, the City shall remit and pay to Association amounts necessary to perform and administer the downtown street flower basket program, up to $23,813.08 for year 2016. The Association shall make written requests for payments from this money, supported by copies of invoices and/or purchase orders as deemed necessary or appropriate by the City. Upon City's approval of a specific Action Plan submitted by Association detailing Association's scope of work and proposed budget for such work, as set forth below in Section 4, the City will remit payment of up to $71,439.25. Payment may be in equal monthly or quarterly installments, supported by copies of invoices, purchase orders and/or descriptions of services performed as deemed necessary or appropriate by City, or in lump sum conditioned upon Association's performance of the City -approved Action Plan. In the event Association incurs any fiscal obligation within the scope of services of this Agreement that requires payment of more than the monthly allocation, Association may make a request for payment of such additional amount. If such additional payment is approved by the City's Director of Budget and Finance, the funds remaining from the original appropriation shall be disbursed in equal monthly payments to Association. In the event that the Agreement is terminated prior to expiration of the one-year term of this Agreement, the Association shall be compensated on a pro -rata basis for work performed through the termination date. 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 promote beautification of the City's downtown, economic development opportunities 2 within the City's downtown, to promote the availability of recreational activities and opportunities within the City's downtown; to promote tourism within the City's downtown; and to provide for the administration of such activities. The "promotion of economic development, recreation and tourism" means and includes activities and expenditures designed to increase tourism, recreational use and economic development, including but not limited to advertising, publicizing, or otherwise distributing information for the purpose of attracting and welcoming tourists, promoting recreational opportunities and major sporting and entertainment events within the City's downtown, cooperating with tourism destination marketing organizations and other persons, organizations and public or private agencies promoting economic development opportunities within downtown Yakima. Such funds may also be used to defray Association's costs incurred from managing such and administering such activities. By way of illustration, the programs and services to be provided by the Association and included in the Association's Action Plan as set forth in Section 4 below may include the following: • Upgrades to Downtownyakima.com or successor Association web site, • Holiday promotions including producing the Light Up the Plaza event, free carriage rides, merchants open houses and advertising, • Development and publishing of new downtown promotional brochures and pocket calendar guides; • New events and programming created by the Association, • Year-round downtown promotional media campaign • New holiday decorations — a phase out of the 30 year old downtown holiday decorations; • Fagade Grant Program to provide assistance to local property owners by offering a 50/50 grant match program for renovations to the facades of their buildings • Light Up the Alleys — a program to provide light and safety to our downtown alley ways creating lighted walking pathways through our downtown area; • Training and travel fees for Washington State Main Street program annual conference and quarterly meetings, and • Discretionary budget for Main Street committee work plan implementation. 4. Association's Action Plan and Proposed Budget. The Association shall prepare and provide to City a written Action Plan and proposed budget on or before April 1, 2016 listing and describing the Association's plans, programs and timelines to provide the 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 3 of such Action Plan if the City determines that such modifications are reasonably necessary to accomplish the purposes of this Agreement. 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 Equipment. The parties do not intend to purchase property or equipment with the proceeds paid to Association pursuant to this Agreement. Unless otherwise agreed, any property or equipment purchased by Association with funds arising from this Agreement shall become the property of City upon termination. 7. Records and Accounts. 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. Copies of all records associated with this Agreement shall be forwarded to the City upon termination 8. Insurance. It is understood the City does not maintain liability insurance for the Association and/or its officers, employees, agents and/or subcontractors. 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 4 any and all 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 (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 contractor, 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 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 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 5 origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, 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. 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. Severabilit 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. 6 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: Jeff Cutter, Interim City Manager City of Yakima 129 North 2nd Street Yakima, Washington 98901 To the Association John Baule, Registered Agent Downtown Association of Yakima P.O. Box 1549 Yakima, Washington 98907 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. 19. Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement, including, but not limited to, the Hold Harmless provisions, 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 or oral .representations, which are hereby declared terminated and of no further force and effect upon the execution and 7 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 By. Je dr , Interim City Manager Date. ATTEST: DOWNTOWN ASSOCIATION OF WASHINGTON By Victor rt. , 2016 By: g, President o n Baule, Treasurer Date 01 loft II - By Y; Sonya CIVar Tee, City CIk are comasso o16? -a 72 ` RE/mu:nomc R' Dtto-D4-i`I 8 , 2016 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 5.J. For Meeting of: April 5, 2016 ITEM TITLE: Resolution authorizing an agreement with the Downtown Association of Yakima for beautification, improvement and promotion of downtown Yakima SUBMITTED BY: Sean Hawkins, Economic Development Manager, 575-6274 SUMMARY EXPLANATION: The Downtown Association of Yakima (DAY) became a certified Washington State Main Street program in January 2015. As part of the certification, DAY is eligible for tax credits to support the programs in its annual work plan. The City of Yakima pays $500,000 in annual Public Utility Tax to the State of Washington. This resolution allows us to move the funds we regularly spend on flower baskets in downtown to the DAY group along with $95,252.33 for programming which would then trigger a $71,439.25 tax credit for the City's 2017 Public Utility Tax obligation to the State of Washington. The group's action plan includes the following items: Upgrades to Downtownyakima.com or successor Association web site; • Holiday promotions including producing the Light Up the Plaza event, free carriage rides, merchant open houses and advertising; Development and publishing of new downtown promotional brochures and pocket calendar guides; New events and programming created by the Association; Year-round downtown promotional media campaign; New holiday decorations — a phase out of the 30 year old downtown holiday decorations; Facade Grant Program to provide assistance to local property owners by offering a 50/50 grant match program for renovations to the facades of their buildings; Light Up the Alleys — a program to provide additional lighting for our downtown alley ways creating lighted walking pathways through the downtown area; Training and travel fees for Washington State Main Street program annual conference and quarterly meetings; and Discretionary budget for Main Street committee work plan implementation. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Economic Development APPROVED FOR SUBMITTAL: Interim City Manager STAFF RECOMMENDATION: BOARD/COMMITTEE RECOMMENDATION: On March 24, 2016, the Council Economic Development Committee (Coffey, A Gutierrez and Adkison) voted 3-0 to bring this to the full council for consideration. ATTACHMENTS: Description Upload Date D Resoltiion DAY 2016 final 3/29/2016 D Agreement DAY 2016 final 3/2812016 Type Cor Memo Co\er Memo