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HomeMy WebLinkAboutYakima Valley Museum and Historical Association - Art Van Use for Thursday Night Concerts ART VAN USE AGREEMENT — THURSDAY NIGHT CONCERTS By and Between CITY OF YAKIMA And THE YAKIMA VALLEY MUSEUM AND HISTORICAL ASSOCIATION THIS ART VAN USE AGREEMENT (hereinafter the "Agreement ") is executed by and between the City of Yakima, Washington, a municipal corporation (hereinafter the "City ") and The Yakima Valley Museum And Historical Association, a Washington nonprofit corporation (hereinafter "Museum "). 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. Museum is a nonprofit corporation whose primary purpose is to provide the community with historical educational opportunities and to present the cultural history of the Yakima Valley to the residents therein. The Museum maintains its office at 2105 Tieton Drive, Yakima, Washington. C. The parties agree that Museum will administer the funds and activities described below to coordinate, facilitate and promote a free art program for the benefit of the youth and citizens of Yakima during the presentation of musical concerts held during the Downtown Summer Nights Concert Series in downtown Yakima on Thursday evenings during the summer months 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 Museum agree as follows: 1. Payment of Funds by City. In compensation for the art services provided by the Museum under this Agreement, the City shall pay Museum an agreed per event Fee. The amount of the Fee shall be Two Hundred Fifty Dollars ($250) per concert event for the art services provided during the Thursday night concerts. There shall be a total of ten concerts presented; the total compensation paid to the Museum under this Agreement for all ten of the concerts shall be in an amount not to exceed Two 1 Thousand Five Hundred Dollars ($2,500.00). The City will pay for the services received upon receipt of an invoice identifying the specific date upon which the art services were provided. The City shall pay the Museum for each invoiced amount within thirty days of receipt of the invoice. 2. Term of Agreement. This Agreement shall commence on June 16, 2016 and continue through the date of the last concert in the Downtown Summer Nights Concert Series on August 18, 2016. There will be ten concerts total. 3. Scope of Services. Museum shall use the funds received from the City to establish, promote, equip with supplies and support an Art Van to provide appropriate activities during the concert, and a representative that will be present between the hours of 5:30 p.m. to 8:00 p.m. at the site of the concerts in downtown Yakima during each of the concert events. The City shall provide the necessary tents and tables to allow interested individuals to utilize the art materials during the conduct of the event. The Art Van representative will make materials from the Art Van available to the public during the concerts and will provide assistance and instruction to those participating in the art events. Such funds may also be used to defray Museum's administrative costs incurred in managing and administering such activities. 4. Reports. Museum will prepare and provide to City a written report at the conclusion of the Concert Series identifying the number of individuals served during the 2016 Summer Concert Series and generally describing the types of art activities that took place during the events. 5. Termination of Agreement. This Agreement may be terminated by either party for any reason upon fifteen (15) 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 Museum except for those funds necessary to defray costs for services already provided as of the date of termination. In no event shall payment exceed $2,500.00. 6. Property and Equipment. The City agrees to provide the Arts Van owned by the City for use by Museum during the concerts. The City's automobile insurance will cover the Art Van while it is being operated by a person authorized under this Agreement and under the Museum's Agreement for provision of the services provided for herein. Museum shall provide all of the art supplies needed for the Art Services subject to the performance of this Agreement throughout the ten concerts in the series. Museum shall also provide a representative that will be present and shall oversee the presentation of the Art Services during each of the concerts, and who shall be 2 appropriately licensed and trained to operate the Art Van. Said representative shall be solely responsible for making the art supplies available to the public and for cleaning up any items and debris that result from the presentation of Art Services during the concerts. 7. Records and Accounts. The Museum 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 Museum 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 records relating to this Agreement must be made available to the City, and the records relating to Scope of Services in this Agreement are City of Yakima 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 reocrds relating to the Hispanic Chamber's Scope of Services under this Agreement must be retained by the Hispanic Chamber for a minimum of six (6) years after the end date or termination of this Agreement. The records hsall at all times be subject to inspection by and with the approval of the City of Yakima, and will be provided to the City upon the City's request. This Section shall survive the termination of this Agreement. 8. Insurance. A. City's Insurance. It is understood the City does not maintain liability insurance for the Museum and /or its officers, employees, volunteers, agents and /or subcontractors. B. Museum's Insurance. At all times during performance of the Services, Museum shall secure and maintain in effect insurance to protect the City and the Museum from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. Museum shall provide and maintain in force insurance in limits no less than that stated below. The City reserves the rights to require higher limits should it deem it necessary in the best interest of the 3 public. If Museum carries higher coverage limits than the limits stated below, such higher limits shall be shown on the Certificate of Insurance and Endorsements and City shall be named as an additional insured for such higher limits. (1)_Commercial General Liability Insurance. Before this Agreement is fully executed by the parties, Museum shall provide the City with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) 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 Contract. The policy shall name the City, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. (2) Museum will also provide statutory workers' compensation and employer's liability insurance as required by state law. 9. Hold Harmless. a. The Museum agrees to protect, defend, indemnify, and hold harmless the City and its officers, elected and appointed officials, employees and agents from 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 Museum, its officers, employees, agents, volunteers and /or subcontractors, arising out of or in connection with duties, obligations, and services required of the Museum under this Agreement. b. In the event that both the Museum and the City are negligent, the Museum'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 Museum, its officers, employees, agents and /or subcontractors. 4 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, Museum understands and acknowledges that it, and its employees and volunteers, are independent contractors, not subject to control or direction from the City except for such oversight as is herein described and set forth by City ordinance. Museum 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. Museum 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. Museum 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 Museum under this Agreement, Museum shall pay the same before it becomes due. 12. Nondiscrimination. During the performance of this Agreement, Museum 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, and 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. Museum 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. Museum 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 5 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. Museum 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 Museum 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 Museum 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. 6 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 Museum: John Baule, Museum Director Yakima Valley Museum 2105 Tieton Drive Yakima, Washington 98902 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 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 a court of competent jurisdiction in 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 VALLEY MUSEUM By: By: Jeff LAW, Interim City Manager John hn Baule, Director Date tU"L ? I if , 2016 Date: (6. , 2016 J ATTEST: ( • 00-0 By: Sonya ClaarjTee, City Clerk # } 4' I ^ } y v CITY CONTRACT NO:, 0th -1 / Z RESOLUTION NO:, 'h /4 8