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HomeMy WebLinkAboutR-2005-029 Yakima Valley Visitors & Convention Bureau AgreementRESOLUTION NO. R 2005 - 29 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and the Yakima Valley Visitors and Convention Bureau for the management, operation and maintenance of the Visitor Information Center. WHEREAS, the City of Yakima owns the Visitor Information Center ("Center") at 101 North Fair Avenue, Yakima, Washington, for the purpose of promoting tourist activities vital to the local economy; and WHEREAS, the City does not have the personnel or resources necessary to manage, operate and maintain the Center; and WHEREAS, the Yakima Valley Visitors and Convention Bureau is a non-profit corporation whose membership represents the hospitality industry, for which the Bureau serves as a focus of efforts to promote convention and tourist activities which are vital to the local economy; and WHEREAS, the Bureau has the experience and expertise to manage, operate and maintain the Center, and the City previously executed an agreement with the Bureau to do so ("City Contract No. 2002-39"); and WHEREAS, during the City's annual budget process, the Bureau requested that the City pay the Bureau a service fee of $40,000 for the management and operation of the Center during 2005; and WHEREAS, on December 7, 2004, the Yakima City Council approved the Bureau's budget; and WHEREAS, an agreement in a form substantially similar to the attached agreement would revise and replace City Contract No. 2002-39 to reflect these circumstances; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize execution of an agreement between the City of Yakima and the (1k)res/comm dev-wine info center-apr 02.pm ti Yakima Valley Visitors and Convention Bureau for the management, operation and maintenance of the Visitor Information Center, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute an agreement in a form substantially similar to the attached "Visitor Information Center Management and Promotion Agreement" between the City of Yakima and the Yakima Valley Visitors and Convention Bureau for the management, operation and maintenance of the Visitor Information Center. The final form of the agreement shall be subject to the approval of the City Attorney. ADOPTED BY THE CITY COUNCIL this 1St day of February, 2005. ATTEST: Paul P. George, Mayor illeZA-ew /0-0.-64 City Clerk (1k)res/comm dev-wine info center-apr 02.pm VISITOR INFORMATION CENTER MANAGEMENT AND PROMOTION AGREEMENT This Visitor Information Center Management and Promotion Agreement (hereinafter the "Agreement") is entered into by and between the City of Yakima, Washington, a municipal corporation (hereinafter the "City"), and the Yakima Valley Visitors and Convention Bureau, a Washington non-profit corporation (hereinafter "Bureau"). Whereas, the City is in the process of designing and constructing the Visitor Information Center ("Center") at 101 North Fair Avenue, Yakima, Washington. The Center shall be used to promote tourist activities vital to the local economy. The City desires to have the Bureau manage and promote the Center in accordance with the terms and conditions of this Agreement. Whereas, the Bureau is a non-profit corporation whose membership represents the hospitality industry, for which the Bureau serves as a focus of efforts to promote convention and tourist activities which are vital to the local economy. The Bureau is willing to manage and promote the Visitor Information Center in accordance with the terms and conditions of this Agreement. Now, therefore, in consideration of the mutual covenants, promises, and conditions set forth herein, it is agreed by and between the City and the Bureau as follows: 1. Management and Operation Duties. The Bureau shall manage, operate and maintain the Visitor Information Center located at 101 North Fair Avenue, Yakima, Washington. A legal description of the real property upon which the Center shall be located is attached hereto as Exhibit "A" and incorporated herein by this reference. The Executive Director of the Bureau shall serve as Center Manager. The Bureau shall provide all personnel and general staff necessary for the operation of the Center. The Center shall be managed, operated and maintained by the Bureau for the purpose of promoting tourist activities within the City and the Yakima Valley. The Bureau shall manage, operate and maintain the Center in full compliance with any and all terms, conditions, restrictions, limitation and other requirements imposed/mandated by the Washington State Department of Transportation. 2. Center Budget. With assistance from the City Manager and/or his staff, the Bureau shall annually submit to the City a proposed Center Budget ("Budget") during the City Council's normal budget preparation cycle. For budget purposes, the Bureau shall be treated like any other City department as to timing, form of the budget document, and internal review by the City. The Budget shall be divided into two categories: 1 • Center Management Budget. This category includes allocated funds for payment of salaries, personnel wages and associated costs of maintaining the Center staff and employees. • Center Operations Budget. This category includes allocated funds to cover the costs of the Center's daily operations, including routine and minor repairs, general building maintenance, utility bills, and other reasonable and foreseeable costs associated with operating and maintaining the Center. 3. Term of Agreement. This Agreement shall commence upon full execution by the parties and shall continue in duration until terminated by either party. Either party may terminate this Agreement, with or without cause, by providing the other party with written notice of termination at least ninety (90) calendar days prior to the termination date. 4. Service Fee. a. 2005 Service Fee. In consideration of the Bureau's operating and managing the Center during the period of January 1, 2005, through December 31, 2005, but subject to the limitations described below, the City shall pay the Bureau an annual service fee of Forty Thousand Dollars ($40,000.00). The fee shall be paid in twelve (12) equal monthly installments. Payment of any portion of the service fee is expressly conditioned upon the services provided being satisfactory to the City and upon the availability of funds. b. Service Fee for Future Years. The Bureau's proposed annual Center Budget that is submitted in accordance with Section 2 shall include a proposed annual service fee. If the City Council approves the proposed annual service fee (or other amount) during the budget process, that approved fee shall be paid by the City in twelve (12) equal monthly installments. Again, payment of any portion of the service fee is expressly conditioned upon the services provided being satisfactory to the City and upon the availability of funds. c. Other Funding. Throughout the term of this Agreement, the Operator shall diligently seek and obtain other funding from other sources (e.g., sponsorships, federal and state grants) to operate, manage and maintain the Center. 5. Utilities. The Bureau shall be responsible for and shall pay all charges for lights, heat, gas, telephone, water, power and any other utilities associated with the management and operation of the Center, and shall not allow any charge(s) therefore to become delinquent or to become liens upon the property or any part thereof, and all charges of whatsoever nature against the property caused in the course of management and operation of the Center by the Bureau shall be paid before delinquency. 2 6. Building Operation and Maintenance. The Bureau shall keep and maintain all portions of the Center and surrounding grounds in an attractive, clean, sanitary, and usable condition at all times. Maintenance shall include but not be limited to: keeping the sidewalks and the parking area of the Center free and clear of snow, ice, and other obstructions; keeping the grass, lawn, flowers, and shrubbery of the Center adequately watered and in good order and condition; replacement of broken glass; maintaining all wiring, lighting fixtures, plumbing, drainage, heating, and air conditioning in good order and condition; and repair of damage resulting from vandalism or accidents. Upon termination of this Agreement, the Bureau shall surrender the Center surrounding premises to the City in as good a condition as such were at the commencement of the Agreement, reasonable wear and tear excepted. 7. Major Repairs. No alterations, remodeling, major repairs (repairs in excess of $2,500.00), and capital improvements to the Center and the surrounding grounds will be performed or constructed without the written approval of the City. The costs and expenses of such alterations, remodels, major repairs, and/or capital improvements shall be mutually agreed to by and between the City and the Bureau prior to the commencement of such alterations, remodels, major repairs, and/or capital improvements. 8. Records and Accounts. The Bureau 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 revenues of the management, operation and maintenance of the Center under 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 and/or of the Washington State Auditor. The Bureau 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 City representatives and/or the Washington State Auditor. Such books, accounts, records, documents and other materials may be copied by representatives of the City and/or of the Washington State Auditor as part of such an inspection/audit. The Bureau shall preserve and make available all such books, accounts, records, documents and other materials for a period of at least three (3) years after termination of this Agreement. 9. Insurance. a. Commercial Liability Insurance. On or before the date this Agreement is fully executed by the parties, the Bureau shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state 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 3 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 officials, officers, agents, and employees 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 and admitted in the State of Washington. b. Fire Casualty & Extended Coverage Insurance. The City shall maintain all necessary fire, casualty and extended coverage insurance on the Center and its contents in such amount as the City deems appropriate. Any funds derived from such insurance shall be used to repair or replace the damaged items or property, but should the property as a whole be damaged to the extent of over fifty percent (50%) of its value, either party may cancel this Agreement by written notice to the other within sixty (60) days following the damage. c. Industrial Insurance. The Bureau shall comply with the provisions of RCW Title 51, Industrial Insurance. For the duration of this Agreement, the Bureau shall provide or purchase industrial insurance coverage for its employees, as may be required of an "employer" as defined in RCW Title 51, and shall maintain full compliance with RCW Title 51. 10. Hold Harmless and Indemnification. a. The Bureau agrees to protect, defend, indemnify, and hold harmless the City, its officers, elected 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 Bureau, its officers, employees, agents, and/or subcontractors arising out of or in connection with management, operation and maintenance of the Center under this Agreement. b. In the event that both the Bureau and the City are negligent, the Bureau's liability for indemnification of the City shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees) that can be apportioned to the Bureau, its officers, employees, agents, and/or subcontractors. c. Nothing contained in this Section or this Agreement shall be construed to vest a right of indemnification in any third party. d. The provisions of this Section shall survive the termination or expiration of this Agreement. 4 11. No Liability Insurance Provided by City. It is understood the City does not maintain liability insurance for the Bureau and/or its officers, employees, agents, instructors, and/or subcontractors. 12. Report of Activities. The Bureau shall submit to the City Council during February of each year a written report addressing management, operational and promotion aspects of its performance of this Agreement during the prior year. 13. Inspection of Center and Surrounding Premises. The City and its agents or designates shall have the right to enter and inspect the Center and surrounding premises at all reasonable times. 14. Independent Contractor Status of Bureau. The Bureau and the City understand and expressly agree that the Bureau is an independent contractor in the performance of each and every part of this Agreement. The Bureau 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 Bureau, as an independent contractor, assumes the entire responsibility for carrying out and completing the work/services required under this Agreement. The Bureau shall be responsible for ensuring that all employees, agents and subcontractors are licensed and authorized to operate the equipment necessary to perform this Agreement, with all required fees and permits paid and in good standing, in accordance with law. The Bureau and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement benefits. 15. Taxes and Assessments. The Bureau 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 the Bureau's management, operation and maintenance of the Center. In the event the City is assessed a tax or assessment as a result of this Agreement, the Bureau shall pay the same before it becomes due. 16. Non -Discrimination. During the performance of this Agreement, the Bureau shall not discriminate 011 the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. 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 5 compensation, selection for training, and the management, operation and maintenance of the Center under this Agreement. 17. Americans with Disabilities Act. The Bureau shall 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 ("WLAD") and its implementing regulations, with regard to the management, operation and maintenance of the Center 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. 18. Compliance with Law. The Bureau shall manage, operate and maintain the Center 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. 19. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by the Bureau 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 Bureau as stated herein. 20. 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 the City determine that the severed portions substantially alter this Agreement so that the original intent and purpose of the Agreement no longer exists, the City may, in its sole discretion, terminate this Agreement. 21. Non -Waiver. The waiver by the Bureau or the City of the breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any 6 subsequent breach by either party or prevent either party thereafter enforcing any such provision. 22. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand -delivered to the parties at their addresses as follows: To City: City Manager City of Yakima 129 North Second Street Yakima, WA 98901 To Bureau: Kathy Coffey Yakima Valley Visitors & Convention Bureau 10 North Eighth Street Yakima, WA 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. 23. 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. 24. Neutral Authorship. Each of the provisions of this Agreement has been reviewed and negotiated and represents the combined work product of both parties hereto. No presumption or other rules of construction which would interpret the provisions of this Agreement in favor of or against the party preparing the same shall be applicable in connection with the construction or interpretation of any of the provisions of this Agreement. 25. 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. 26. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 7 27. 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, WASHINGTON By: Dick ais City Manager Date: .2 - - o _5 - ATTEST: ATTEST: By: )--2 Date: City Clerk CITY CONTRAC r RESOLUTION NO: A p 8 YAKIMA VALLEY VISITORS AND CONV .: TION BURU INC. ary Lu ehart Chairman of the Board Date: Date: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. % 0 For Meeting Of: Feb. 1, 2005 ITEM TITLE: Consideration of a Resolution authorizing execution of an agreement with the Yakima Valley Visitors and Convention Bureau for the management, operation and maintenance of the Visitor Information Center SUBMITTED BY: '- ' ook, Director of Community and Econ. Development Cindy Epperson, Financial Services Manager C;1 CONTACT PERSON/TELEPHONE: Bill Cook, CED Director 575-6113 SUMMARY EXPLANATION: During the 2005 budget process, the Yakima Valley Visitors and Convention Bureau submitted a policy issue requesting that the City allocate $40,000 of Hotel/Motel tax for operation and maintenance of the Visitor Information Center (VIC). Prior to 2005, the VIC was supported by businesses that advertised in the facility. The policy issue was proposed because the fee-based system was difficult to administer. City Council approved this policy issue during their budget deliberations, so the $40,000 is properly included in the 2005 budget. However, the existing contract with the Bureau for maintenance of this facility required modification to reflect the monetary support. The attached resolution authorizes the City Manager to execute an updated contract. Resolution X Ordinance Contract X Other (Specify) Funding Source Tourist Promotion Fund 170—Hotel/Motel Tax APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt the Resolution BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLiTPION R-2005-29