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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEM ENT
Item No. 11.
For Meeting of:August 20, 2019
ITEM TITLE: Resolution authorizing a renewal of the Tourism Promotion Area
Administration Agreement with Yakima Valley Tourism
SUBMITTED BY: Steve Groom, Director of Finance and Budget
SUMMARY EXPLANATION:
The existing Tourism Promotion Area Administration Agreement expires December 31 , 2019.
Contract language has been edited to include expanded details for scope of service, budget
submission requirements, specifics on administrative fees, and reporting requirements.
ITEM BUDGETED:
STRATEGIC PRIORITY:
APPROVED FOR
SUBMITTAL: City Manager
STAFF RECOMMENDATION:
Adopt resolution.
BOARD/COMMITTEE RECOMMENDATION:
Partnership committee reviewed, considered proposed changes, and approved for council
review. All proposed changes are included in the attached documents.
ATTACHMENTS:
Description Upload Date Type
A Resolution / /2019 r Me o
I A Agr ent- / 019 r Me o
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RESOLUTION NO. R-2019-
A RESOLUTION authorizing a renewal of the Yakima Tourism Promotion Area
Administration Agreement with the Yakima Valley Visitors and
Convention Bureau.
WHEREAS, the Tourism Promotion Area (TPA) is an important tool for the City's
investment in our local economy through tourism, created by Ordinance No. 2004-17 and
revised by Ordinance No. 2011-21 of the City Council of the City of Yakima, pursuant to the
authority of Chapter 35.101 RCW; and
WHEREAS, the Yakima Valley Visitors and Convention Bureau is a nonprofit
corporation that has the convention and tourism experience and staff expertise to administer
the Yakima Tourism Promotion Area, to prepare the TPA Annual Budget and provide
staffing services to the Yakima Hotel and Motel Commission; and
WHEREAS, the Bureau currently administers the activities and programs of the
Yakima County Tourism Promotion Area and prepares the TPA Annual Budget; and
WHEREAS, the Yakima Tourism Promotion Area Administration Agreement
attached hereto and incorporated herein by this reference includes revisions to the previous
agreement that better defines the desired scope of work, including more specific
requirements for accounting, budgeting, and reporting, as well as providing contract cost
limitations consistent with other City service contracts; and
WHEREAS, the City Council Partnership Committee has reviewed the attached
Agreement and has recommended it be presented to the City Council for approval; and
WHEREAS, the City Council has determined that it is in the best interest of the
residents of the City that the Yakima Tourism Promotion Area Administration Agreement be
approved; 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 Yakima Tourism Promotion Area Administration Agreement with Yakima
Valley Visitors and Convention Bureau to manage the Tourism Promotion Area through
December 31, 2024 in accordance with the terms of the Agreement.
ADOPTED BY THE CITY COUNCIL this 20'h day of August, 2019.
ATTEST: Kathy Coffey, Mayor
City Clerk
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YAKIMA TOURISM PROMOTION AREA
ADMINISTRATION AGREEMENT
By and Between
CITY OF YAKIMA
And
YAKIMA VALLEY VISITORS AND CONVENTION BUREAU
THIS YAKIMA TOURISM PROMOTION AREA ADMINISTRATION AGREEMENT
(hereinafter the "Agreement") is executed by and between the City of Yakima,
Washington, a municipal corporation (hereinafter the "City") and Yakima Valley Visitors
and Convention Bureau, a Washington nonprofit corporation (hereinafter the"Bureau").
I. Recitals
A. The City desires to contract with the Bureau for the activities and programs
of the Yakima County Tourism Promotion Area ("TPA") and to prepare the TPA Annual
Budget in accordance with the terms and conditions of this Agreement.
B. The Bureau is a nonprofit 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.
C. The Bureau currently administers the activities and
programs of the Yakima County Tourism Promotion Area and to prepareprepares the
TPA Annual Budget 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 Bureau agree as follows:
1. Definitions. As used in this Agreement, the following terms, unless the context
otherwise dictates, shall have the following meanings:
a. "Interlocal Agreement"shall mean the April 13, 2004 Interlocal Cooperation
Act Agreement for Establishment of Yakima County Tourism Promotion
Area between the City of Yakima, the City of Se aft the City of Unisn Gap;
and Yakima County for the establishment of a Yakima County Tourism
Promotion Area by the City of Yakima as authorized by RCW 35.101.040(2).
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b. "Lodging Business" means a business located within the Yakima County
Tourism Promotion Area that furnishes lodging taxable by the state under
Chapter 82.08 RCW that has forty(40) or more lodging units.
c. "Operator" means the operator of a Lodging Business, whether in the
capacity of owner, general manager, lessee, sub-lessee, mortgagee in
possession, licensee, designee, or any other similar capacity.
d. The Yakima Hotel and Motel Commission" means the Yakima Hotel and
Motel Commission established by the City of Yakima, whose five voting --! Formatted:Font coloc Green
members are appointed by the City Council of the City of Yakima, tnlith two
additional non-voting members. one appointed by the City Council e#-fhe
, and one by the _---"Formatted:Font color:Red
Board of County Commissioners of Yakima County, to provide
recommendations to the City Council of the City of Yakima eefor proposed
uscaactivities and projects sfexpenditures to which the Yakima County Formatted:Fontcolor:Red
Tourism Promotion Area revenues may be applied, pursuant to the
provisions of RCW 35.101.131(1),010 through 140. as provided in this
Agreement.
e. The "promotion of tourism and convention business" means activities and
expenditures designed to increase tourism and convention business,
including but not limited to advertising, publicizing, or otherwise distributing
information for the purpose of attracting and welcoming tourists and
operating tourism destination marketing organizations.
f. 'Tourism Promotion Charge" means the charge imposed by the City of
Yakima on the furnishing of lodging furnished by a Lodging Business within
the Yakima County Tourism Promotion Area under the authority of RCW
35.101.050 for the purpose of providing fo-funding effor the promotion of
tourism and convention business in Yakima County.
g. "Yakima County Tourism Promotion Area" means the Tourism Promotion
Area comprising the City of Yakima, the City of Sdah, the City of Union
Gap- and the unincorporated area of Yakima County as-created by the
Ordinance No. 2W4-,-2-2004-17 and revised by Ordinance No. 2011-21 of _.—i Formatted:Font color:Red
the City Council of the City of Yakima, pursuant to the authority of Chapter
35.101 RCW,andas authorized by the resolutions of the City Council of the
City of Yakima, the City Council s#the City of Sclah, the City Council of the
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City of Unbn Op. and the Board of County Commissioners of Yakima
County, adopting the terms of this Agreement.
2. Scope of Services.
a. TPA Administration. The Bureau shall administer the activities and
programs of the Yakima County Tourism Promotion Area in compliance with
all applicable provisions of state and local laws, including resolutions and
ordinances relating to the creation and operation of the TPA, the Interlocal
Agreement and all regulations lawfully imposed by the State Auditor and
other state agencies. The Bureau shall provide and manage accounting
systems and staff to maintain (in accordance with generally accepted
accounting practices) books, accounts, records, documents and other
materials related directly or indirectly to the costs, expenses, and
ex enditures incurred and/or made ursuant to this A reement.
b. Preparation of TPA Annual Budget. The Bureau shall-also prepare an
Annual Budget for the Yakima County Tourism Promotion Area to be
reviewed and approved by pie Yakima Hotel and Motel Commission and Formatted:Font color:Text I
submitted to the City Council of the City of Yakima on or before N(44,44444
•
Motel Commi..zion in conjunction with as.,,iGting it in determining what
,September 1 of each year for review and approval. The
Proposed budget shall include forecasted revenue. staffing levels,
expenditures and marketing and promotion strategy summaries that provide
proposed accomplishments and statistical milestones. Any additional TPA
revenue expenditures must be submitted to the City Manager for inclusion
on a City Council agenda for Council review and approval.
c. Reporting. The Bureau shall submit a monthly report to the City Manager
that provides operational statistics and accomplishments, which shall
include (1)the number of city-wide hotel stays generated by the Bureau. (2)
the number of convention center event days and attendees. (3)the number
of material sporting events and attendees, together with Marketing St
Promotional activities and accomplishments. The monthly report shall also
include a summary of monthly TPA revenue receipts and expenditures.
Changes in staffing shall also be included.
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3. TPA Annual Budget. The TPA Annual Budget shall consist of:
a. A list of the Lodging Businesses and number of hotel rooms subject to the
Tourism Promotion Charges and anthat includes a total estimate of the
revenue forecast to be received from all such Lodging Businesses. —t Formatted:Font color:Red
b. Ab. A proposed line-item expense budget with accompanying
explanatory statement describing all proposed uses of Tourism Promotion .._�--� Formatted:Font color Red
ChaTeArea revenue facto accomplish the purpose of promoting tourism
and convention business in the Yakima County Tourism Promotion Area for
the ensuing fiscal year, as recommended by the Yakima Hotel and Motel
Commission.
4. 4JseExpenditure of Tourism Promotion Charge Revenues#ar•
•
a. It is understood and agreed that all of the revenues from the Tourism
Promotion Charges collected by the City of Yakima from Lodging
Businesses within the jurisdiction of the City of Yakima-
-and unincorporated areas of Yakima County shall be
allocated by the City Council of the City of Yakima in accordance with the
TPA Annual Budget. The Yakima Hotel and Motel Commission shall make
a recommendation to the City Council of the City of Yakima on all TPA
Annual Budgets. The City Council of the City of Yakima shall have the
ultimate authority to set and approve all TPA Annual Budgets.
b. The revenues from the Tourism Promotion Charges imposed by the City of
Yakima on lodging furnished by the Lodging Businesses
situated within the TPA shall be used for the following purposes only:
i. The funding of all activities and expenditures designed to
increase tourism and convention business within the area-ef
tk4e-jurisdiction of the City of Yakima, the City of 9eki1-tL.
City of Union Gap, and the unincorporated areas of Yakima
County, as specified in the TPA Annual Budget that benefit
local tourism and result in overnight stays at Lodging
Businesses within the TPA; and
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Ji. The marketing of tourism and convention business that
benefit local tourism and result in overnight rtays within the
TPA; and
The marketing of Yakima County to the travel industry in order
to benefit local tourism and convention business and result in
overnight stays at Lodging Businesses within the TPA; and
iv. The marketing of Yakima County to recruit major sporting
events in order to promote local tourism; resulting in overnight
stays at Lodging Businesses within the TPA. —i Formatted:Font color:Red
c. All Tourism Promotion #arge&Charge revenues received by the City of
Yakima from the Washington State Department of Revenue and any
44e t thcre+e—shall be deposited by the City of Yakima in a speebk
aeee 44--�separate fund and remitted to the bureau-asBureau's
TPA Manager will be made as provided for in tho agroomont between tho
., No Tourism Promotion Chs gee sh e
annual Budget. Provided further,the City of Yakima shall not expend in any
Annual BuJgtACharge revenues shall be disbursed without City Council
budgetary approval.
5. Annual Administration Fee. tnAS compensation for the administrative
services provided by the Bureau under this Agreement, the G4yBureau shall pay
tho Buroauretain an Annual Administration Fee. The amount of tho Annual Formatted:Fontcolor:Red
said annual fee chofl be-pa+dnot to exceed the greater of $19.000 or 2.95% of
budgeted TPA revenue approved by City Council in the Adopted Budget. The fee
shall be retained in equal monthly installments,
to the Bureau by the 16r=day of each month. The Bureau may request an of the
calculated annual
{xocccr� aced to establish the TPA Annual Budget.fee amount. In the event that
thethis Agreement is terminated prior to its term,the Bureau shall be compensated
on a pro-rata basis through the termination date.
6. Term of Agreement. This Agreement shall commence January 1,
2&1A2020 following full execution by the parties;,and shall terminate at midnight,
December 31, ` 92024.
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7. Termination of Agreement.
This Agreement may be terminated in accordance with the following:
a. By either party without cause upon ninety (90) calendar days' advance
written notice to the other party;
b. When a party fails to cure a default for thirty (30) calendar days following
hand delivery or mailing of a written notice of default from the other party;
c. In the event that a portion(s) of this Agreement is severed by a court of
competent jurisdiction and either party determines that the severed
portion(s) substantially alter this Agreement so that the original intent and
purpose of the Agreement no longer exists, said party may, in its discretion,
terminate this Agreement upon thirty (30) calendar days' advance written
notice to the other party; or
d. Disestablishment of the Yakima County Tourism Promotion Area as
provided in the Interlocal Agreement.
8. Property and Equipment. The City of Yakima shall be the owner of all
property and equipment purchased by the Bureau from Tourism Promotion Charge
revenues; provided, however, in the event of termination of this Agreement, the
City of Yakima agrees to make the property and/or equipment available to the
successor TPA Manager for its use in conjunction with providing similar services.
Additionally, in the event of disestablishment of Yakima County Tourism Promotion
Area, all property and equipment purchased by the Bureau from Tourism
Promotion Charge revenues shall be retained by the City of Yakima and used for
any lawful purpose.
9. 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
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, City of
, Yakima County and/or-e#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
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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 Bureau shall
preserve and make available all books, accounts, records, documents and other
materials for a period of at least three (3seven (7) years after termination of
Agreement.
10. Insurance Requirements.
a. Liability Insurance. _On or before 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 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
Agreement. The policy shall name the City of Yakima, City of Sclah, City
of Union Gap, and Yakima County-and their respective elected 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.
b. Automobile Liability Coverage.— On or before this Agreement is fully
executed by the parties,the Bureau shall provide the City with a certificate
of insurance as proof of commercial automobile 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. Automobile liability will apply to "Any Auto" and be
shown on the certificate. The required certificate of insurance 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
of Yakima,City of Selah, City of Union Gap, and Yakima County-and their
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respective elected 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.
c. Failure of either or all of the additional insureds to report a claim under
such insuranceinsurance shall not prejudice the rights of anythe named
city or county- or their respective officers, employees, agents, and
representatives theFe—uederthereunder. The named eiNes-citys and
county's elected officials, officers, principals, employees, representatives,
and agents shall have no obligation for payment of premiums becauseas
a result of being named as additional insureds under such insurance.
None of the policies issued pursuant to the requirements contained herein
shall be canceled, allowed to expire, or changed in any manner that
affects the rights of the City until thirty(30) days after written notice to the
City of such intended cancellation, expiration or change.
d. This Section of the Agreement shall survive the term or expiration of this
Agreement and shall be binding on the parties to this Agreement.
11. Hold Harmless and Indemnification.
a. The Bureau agrees to protect, defend, indemnify, and hold harmless the
City and 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 duties, obligations, and services required of the Bureau 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, liabilities, damages,
judgments, costs and expenses (including reasonable attorneys' fees)
that can be apportioned to the Bureau, its officers, employees, agents
and/or subcontractors. .a Formatted:Font:8 pt
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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 or this Agreement shall survive the
termination or expiration of this Agreement.
12. No Insurance Provided by the City. It is understood the City does not
maintain liability insurance for the Bureau and/or its officers, employees, agents
and/or subcontractors.
13. Independent Contractor. In performing this Agreement, the Bureau 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 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 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.
14. 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 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 Bureau under this Agreement,the Bureau
shall pay the same before it becomes due.
15. Nondiscrimination. -During the performance of this Agreement,the Bureau 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. -Bureau agrees to comply with the
applicable provisions of State and Federal Equal Employment Opportunity and
Nondiscrimination statutes and regulations.
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16. The Americans with Disabilities Act.— The Bureau 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.
17. Compliance with Law.— The Bureau 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.
18. Assignment. -This Agreement, or any interest therein, 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.
19. 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.
20. 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
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any one or more instances, shall not be construed as a waiver or relinquishment
of any such agreement, covenant, condition or right.
21. 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: , City Manager
City of Yakima
129 North 2nd Street
Yakima, Washington 98901
To the Bureau: -President&CEO
Yakima Valley Visitors&Convention Bureau
10 North 8th 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.
22. 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.
23. 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.
24. Governing Law. —This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
25. Venue. -The venue for any action to enforce or interpret this Agreement shall lie
in the Superior Courta court of Washington forcompetent jurisdiction in Yakima
County, Washington.
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26. 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 VISITORS AND
CONVENTION BUREAU
By: By:
=e�EeCliff Moore, City Manager John Cooper, President&CEO
Date: , 2442019 By:
Date:
20112019
ATTEST:
By:
— Sonya Claar Tee, City Clerk
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Left
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YAKIMA TOURISM PROMOTION AREA
ADMINISTRATION AGREEMENT
By and Between
CITY OF YAKIMA
And
YAKIMA VALLEY VISITORS AND CONVENTION BUREAU
THIS YAKIMA TOURISM PROMOTION AREA ADMINISTRATION AGREEMENT
(hereinafter the "Agreement") is executed by and between the City of Yakima,
Washington, a municipal corporation (hereinafter the "City") and Yakima Valley Visitors
and Convention Bureau, a Washington nonprofit corporation (hereinafter the "Bureau").
I. Recitals
A. The City desires to contract with the Bureau for the activities and programs
of the Yakima County Tourism Promotion Area ("TPA") and to prepare the TPA Annual
Budget in accordance with the terms and conditions of this Agreement.
B. The Bureau is a nonprofit 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.
C. The Bureau currently administers the activities and programs of the Yakima
County Tourism Promotion Area and prepares the TPA Annual Budget 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 Bureau agree as follows:
1. Definitions. As used in this Agreement, the following terms, unless the context
otherwise dictates, shall have the following meanings:
a. "Interlocal Agreement" shall mean the April 13, 2004 Interlocal Cooperation
Act Agreement for Establishment of Yakima County Tourism Promotion
Area between the City of Yakima and Yakima County for the establishment
of a Yakima County Tourism Promotion Area by the City of Yakima as
authorized by RCW 35.101 .040(2).
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b. "Lodging Business" means a business located within the Yakima County
Tourism Promotion Area that furnishes lodging taxable by the state under
Chapter 82.08 RCW that has forty (40) or more lodging units.
c. "Operator" means the operator of a Lodging Business, whether in the
capacity of owner, general manager, lessee, sub-lessee, mortgagee in
possession, licensee, designee, or any other similar capacity.
d. "The Yakima Hotel and Motel Commission" means the Yakima Hotel and
Motel Commission, established by the City of Yakima, whose five voting
members are appointed by the City Council of the City of Yakima, with two
additional non-voting members, one appointed by the City Council and one
by the Board of County Commissioners of Yakima County, to provide
recommendations to the City Council of the City of Yakima for proposed
activities and expenditures to which the Yakima County Tourism Promotion
Area revenues may be applied, pursuant to the provisions of RCW
35.101 .010 through 140, as provided in this Agreement.
e. The "promotion of tourism and convention business" means activities and
expenditures designed to increase tourism and convention business,
including but not limited to advertising, publicizing, or otherwise distributing
information for the purpose of attracting and welcoming tourists and
operating tourism destination marketing organizations.
f. "Tourism Promotion Charge" means the charge imposed by the City of
Yakima on lodging furnished by a Lodging Business within the Yakima
County Tourism Promotion Area under the authority of RCW 35.101 .050 for
the purpose of providing funding for the promotion of tourism and
convention business in Yakima County.
g. "Yakima County Tourism Promotion Area" means the Tourism Promotion
Area comprising the City of Yakima and the unincorporated area of Yakima
County created by the Ordinance No. 2004-17 and revised by Ordinance
No. 2011-21 of the City Council of the City of Yakima, pursuant to the
authority of Chapter 35.101 RCW and as authorized by the resolutions of
the City Council of the City of Yakima and the Board of County
Commissioners of Yakima County, adopting the terms of this Agreement.
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2. Scope of Services.
a. TPA Administration. The Bureau shall administer the activities and
programs of the Yakima County Tourism Promotion Area in compliance with
all applicable provisions of state and local laws, including resolutions and
ordinances relating to the creation and operation of the TPA, the Interlocal
Agreement and all regulations lawfully imposed by the State Auditor and
other state agencies. The Bureau shall provide and manage accounting
systems and staff to 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.
b. Preparation of TPA Annual Budget. The Bureau shall prepare an
Annual Budget for the Yakima County Tourism Promotion Area to be
reviewed and approved by the Yakima Hotel and Motel Commission and
submitted to the City Council of the City of Yakima on or before September
1 of each year for review and approval. The Proposed budget shall include
forecasted revenue, staffing levels, expenditures and marketing and
promotion strategy summaries that provide proposed accomplishments and
statistical milestones. Any additional TPA revenue expenditures must be
submitted to the City Manager for inclusion on a City Council agenda for
Council review and approval.
c. Reporting. The Bureau shall submit a monthly report to the City Manager
that provides operational statistics and accomplishments, which shall
include (1) the number of city-wide hotel stays generated by the Bureau, (2)
the number of convention center event days and attendees, (3) the number
of material sporting events and attendees, together with Marketing &
Promotional activities and accomplishments. The monthly report shall also
include a summary of monthly TPA revenue receipts and expenditures.
Changes in staffing shall also be included.
3. TPA Annual Budget. The TPA Annual Budget shall consist of:
a. A list of the Lodging Businesses and number of hotel rooms subject to the
Tourism Promotion Charges that includes a total estimate of the revenue
forecast to be received from all such Lodging Businesses.
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b. A proposed line-item expense budget with accompanying explanatory
statement describing all proposed uses of Tourism Promotion Area revenue
to accomplish the purpose of promoting tourism and convention business
in the Yakima County Tourism Promotion Area for the ensuing fiscal year,
as recommended by the Yakima Hotel and Motel Commission.
4. Expenditure of Tourism Promotion Charge Revenues.
a. It is understood and agreed that all of the revenues from the Tourism
Promotion Charges collected by the City of Yakima from Lodging
Businesses within the jurisdiction of the City of Yakima and unincorporated
areas of Yakima County shall be allocated by the City Council of the City of
Yakima in accordance with the TPA Annual Budget. The Yakima Hotel and
Motel Commission shall make a recommendation to the City Council of the
City of Yakima on all TPA Annual Budgets. The City Council of the City of
Yakima shall have the ultimate authority to set and approve all TPA Annual
Budgets.
b. The revenues from the Tourism Promotion Charges imposed by the City of
Yakima on lodging furnished by the Lodging Businesses situated within the
TPA shall be used for the following purposes only:
The funding of all activities and expenditures designed to
increase tourism and convention business within the
jurisdiction of the City of Yakima and the unincorporated areas
of Yakima County, as specified in the TPA Annual Budget,
that benefit local tourism and result in overnight stays at
Lodging Businesses within the TPA; and
The marketing of Yakima County to the travel industry to
benefit local tourism and convention business and result in
overnight stays at Lodging Businesses within the TPA; and
iv. The marketing of Yakima County to recruit major sporting
events in order to promote local tourism, resulting in overnight
stays at Lodging Businesses within the TPA.
c. All Tourism Promotion Charge revenues received by the City of Yakima
from the Washington State Department of Revenue shall be deposited by
the City of Yakima in a separate fund and remitted to the Bureau's TPA
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Manager. No Tourism Promotion Charge revenues shall be disbursed
without City Council budgetary approval.
5. Annual Administration Fee. As compensation for the administrative services
provided by the Bureau under this Agreement, the Bureau shall retain an Annual
Administration Fee, said annual fee not to exceed the greater of$19,000 or 2.95%
of budgeted TPA revenue approved by City Council in the Adopted Budget. The
fee shall be retained in equal monthly installments of the calculated annual fee
amount. In the event that this Agreement is terminated prior to its term, the Bureau
shall be compensated on a pro-rata basis through the termination date.
6. Term of Agreement. This Agreement shall commence January 1 , 2020,
following full execution by the parties, and shall terminate at midnight, December
31 , 2024.
7. Termination of Agreement.
This Agreement may be terminated in accordance with the following:
a. By either party without cause upon ninety (90) calendar days' advance
written notice to the other party;
b. When a party fails to cure a default for thirty (30) calendar days following
hand delivery or mailing of a written notice of default from the other party;
c. In the event that a portion(s) of this Agreement is severed by a court of
competent jurisdiction and either party determines that the severed
portion(s) substantially alter this Agreement so that the original intent and
purpose of the Agreement no longer exists, said party may, in its discretion,
terminate this Agreement upon thirty (30) calendar days' advance written
notice to the other party; or
d. Disestablishment of the Yakima County Tourism Promotion Area as
provided in the Interlocal Agreement.
8. Property and Equipment. The City of Yakima shall be the owner of all
property and equipment purchased by the Bureau from Tourism Promotion Charge
revenues; provided, however, in the event of termination of this Agreement, the
City of Yakima agrees to make the property and/or equipment available to the
successor TPA Manager for its use in conjunction with providing similar services.
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Additionally, in the event of disestablishment of Yakima County Tourism Promotion
Area, all property and equipment purchased by the Bureau from Tourism
Promotion Charge revenues shall be retained by the City of Yakima and used for
any lawful purpose.
9. 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
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, Yakima
County and/or 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 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 Bureau shall preserve and make available all books,
accounts, records, documents and other materials for a period of at least seven
(7) years after termination of Agreement.
10. Insurance Requirements.
a. Liability Insurance. On or before 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 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 Agreement. The policy shall
name the City of Yakima, Yakima County and their respective elected
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.
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b. Automobile Liability Coverage. On or before this Agreement is fully
executed by the parties, the Bureau shall provide the City with a certificate
of insurance as proof of commercial automobile 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. Automobile liability will apply to "Any Auto" and be
shown on the certificate. The required certificate of insurance 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
of Yakima, Yakima County and their respective elected 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.
c. Failure of either or all of the additional insureds to report a claim under
such insurance shall not prejudice the rights of the named city or county
or their respective officers, employees, agents, and representatives
thereunder. The named city's and county's elected officials, officers,
principals, employees, representatives, and agents shall have no
obligation for payment of premiums as a result of being named as
additional insureds under such insurance. None of the policies issued
pursuant to the requirements contained herein shall be canceled, allowed
to expire, or changed in any manner that affects the rights of the City until
thirty (30) days after written notice to the City of such intended
cancellation, expiration or change.
d. This Section of the Agreement shall survive the term or expiration of this
Agreement and shall be binding on the parties to this Agreement.
11. Hold Harmless and Indemnification.
a. The Bureau agrees to protect, defend, indemnify, and hold harmless the
City and 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
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(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 duties, obligations, and services required of the Bureau 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, liabilities, damages,
judgments, costs and expenses (including reasonable attorneys' 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 or this Agreement shall survive the
termination or expiration of this Agreement.
12. No Insurance Provided by the City. It is understood the City does not
maintain liability insurance for the Bureau and/or its officers, employees, agents
and/or subcontractors.
13. Independent Contractor. In performing this Agreement, the Bureau 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 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 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.
14. 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 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 Bureau under this Agreement, the Bureau
shall pay the same before it becomes due.
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15. Nondiscrimination. During the performance of this Agreement, the Bureau 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. Bureau agrees to comply with the
applicable provisions of State and Federal Equal Employment Opportunity and
Nondiscrimination statutes and regulations.
16. The Americans with Disabilities Act. The Bureau 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.
17. Compliance with Law. The Bureau 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.
18. Assignment. This Agreement, or any interest therein, 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.
19. 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.
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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.
20. 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.
21. 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: City Manager
City of Yakima
129 North 2nd Street
Yakima, Washington 98901
To the Bureau: President & CEO
Yakima Valley Visitors & Convention Bureau
10 North 8th 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.
22. 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.
23. 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
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as herein provided, and no amendment or modification of this Agreement shall be
effective unless reduced to writing and executed by the parties.
24. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
25. Venue. The venue for any action to enforce or interpret this Agreement shall lie in
a court of competent jurisdiction in Yakima County, Washington.
26. 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 VISITORS AND
CONVENTION BUREAU
By: By:
Cliff Moore, City Manager John Cooper, President & CEO
Date: , 2019 By:
Date: , 2019
ATTEST:
By:
Sonya Clear Tee, City Clerk
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