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HomeMy WebLinkAboutR-2011-012 The Seasons Performance Hall Strategic Website Development Agreement RESOLUTION NO. R- 2011 -12 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and The Seasons Perforrnance Hall for strategic website development, and ratifying performance of contract work performed in 2010. WHEREAS, the City of Yakima desires to support an arts and entertainment venue; and WHEREAS, The Seasons Performance Hall has the experience and expertise necessary to reach out to a wide audience and agrees to perform these services under the terms and conditions set forth in the attached agreement; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to enter into the attached agreement with The Seasons Performance Hall for the continued building and development of its website, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated "Agreement between the City of Yakima and The Seasons Performance Hall" for strategic website development, and ratifying contract work previously performed in 2010. ADOPTED BY THE CITY COUNCIL this 18 day of January, 2011. ATTEST: icah Ca ey, ayor ads City Clerk crT� or "tt�uit <[• • • • • 2010 MAJOR POLICY ISSUE • OUTSIDE AGENCY • • SEASONS MUSIC FESTIVAL BUDGETED / LINBUDGETED • • PROPOSAL • This proposal is an outside agency request to provicle financial support in the amount of $4,000 in funding in 2010. The proposed project is to develop and implement a targeted promotional campaign to draw tourists to the Seasons annual ten day Fall festival, to be held during the wine crush period. IMPACTS • • a. Fiscal Impact - Non - personnel: $8,000 2009 Budget 4,000 Unbudgeted $4,000. 2010 Proposed Budget As recommended by the Council Budget Committee, this is 50% of the amount approved by City Council in the 2009 budget. • b. Proposed Funding Source = Parks and Recreation Fund. • c. Public Impact - Economic benefit of related tourism. • d. Personnel Impact - None. • e. Required Changes in City Regulations or Policies - None. • • f. Legal Constraints, if applicable - None. • g. Viable Alternatives -None. • CONCLUSION AND /OR STAFF RECOMMENDATION • This is a Council policy decision. • • • • • • • 7R — r n,id T-iyt,rrrn7)nrwiaanritn A rrn-parinc o Pnl it-,I Tcc,unc • AGREEMENT BETWEEN THE CITY OF.YAKIMA AND THE SEASONS PERFORMANCE HALL THIS AGREEMENT is made and entered into by and between the City of Yakima, a Washington municipal corporation, herein referred to as "City," and The Seasons Performance Hall, herein referred to as "Seasons." WHEREAS, the City desires to support an Arts and Entertainment venue; and. WHEREAS, Seasons has the experience and expertise necessary to reach out to a wide audience and agrees to perform these services . for the City under the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, and • agreements set forth herein, it is agreed by and between the City and Seasons as follows: 1. Services. Seasons will prepare and promotionally expand its Internet website as described in Exhibit "A" which is attached and incorporated by this reference. 2. Program Objectives. The primary theme of the program is to implement a targeted promotional campaign as described in Exhibit "A" which is attached and incorporated by this reference. 3. Project Scope. The scope of the project includes a promotional campaign to continue to work on the web design and programming to fit the Season's target market as described in Exhibit "A" which is attached and incorporated by this reference. 4. Consideration. The City agrees to compensate Seasons for services rendered hereunder the sum of not more than Four Thousand Dollars ($4,000). Seasons shall submit satisfactory documentation (invoices /billings) to the City Parks and Recreation Manager and the City shall make the required disbursement to Seasons after receiving said documentation. 5. Term. The term of this Agreement shall commence on the day this agreement is signed and terminate on the 31st day of December 2011, unless sooner terminated in accordance with Section 19 or Section 20 of this Agreement. 6. Independent Contractor Status of Seasons. Seasons and the City understand and expressly agree that Seasons is an independent contractor in the performance of each and every part of this Agreement. No officer, employee, volunteer, and /or agent of Seasons shall act on behalf of or represent him or herself as an agent or representative of the City. Seasons, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. Seasons 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. Seasons and its officers, employees, volunteers, agents and /or City of Yakima - Seasons Performance Hall Agreement Page 1 of 6 /t. r subcontractors shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and /or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between Seasons and the City. 7. Right to Inspect and/or Audit Financial Records. Seasons shall maintain records and documents necessary to assure the proper accounting of all funds paid to Seasons pursuant to this Agreement. The City or any of its duly authorized representatives shall have a right to access such records and documents for the purpose of making an Inspection, an audit and /or copies. All such records and documents shall be retained and available for inspection, audit and copying by the City during the term of this Agreement and for a period of three (3) years following the termination of this Agreement. In the event that any such inspection or audit identifies any discrepancy in the accounting of funds paid to Seasons under this Agreement, Seasons shall provide the City with appropriate written clarification and financial adjustment within thirty (30) calendar days of notification from the City of the discrepancy. 8. Taxes and Assessments. Seasons shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, Seasons shall pay the same before it becomes due. 9. Nondiscrimination Provision. During the performance of this Agreement, Seasons shall not discriminate in violation of any applicable federal, state and /or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, political affiliation, 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. 10. The Americans with Disabilities Act. Seasons agrees to comply with the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti - discrimination law as contained in RCW Chapter 49.60 and its implementing regulations. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, state and local government services, and telecommunications. 11. Compliance with Law. Seasons agrees to perform those services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 12. No Conflict of Interest. Seasons covenants that neither it nor its employees have any interest and shall not hereafter acquire any interest, direct or indirect, which would City of Yakima-Seasons Performance Hall Agreement Page 2 of 6 conflict in any manner or degree with the performance of this Agreement. Seasons further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 13. No Insurance. It is understood the City does not maintain liability insurance for Seasons and/or its employees. 14. Indemnification and Hold Harmless. Seasons shall protect, defend, indemnify, exonerate, and hold harmless the City, its elected officials, agents, officers, and employees from and against any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, causes of action, damages, losses, and expenses of any kind or nature whatsoever, including but not limited to, attorneys fees and court costs, arising out of, relating to, or in any way connected with the activities of Seasons related to this Agreement. 15. Insurance. a. Liability Insurance. On or before date this Agreement is fully executed by the parties, Seasons shall provide the City with a certificate of insurance as proof of liability insurance with 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. 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 a company rated A -VII or higher in Best's Guide and admitted in the State of Washington. b. Industrial Insurance. Seasons shall comply with the provisions of RCW Title 51, Industrial Insurance. For the duration of this Agreement, Seasons 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. c. Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 16. Delegation of Professional Services. The services provided for herein shall be performed by Seasons and no person other than regular associates or employees of Seasons shall be engaged upon such work or services except upon written approval of the City. 17. Assignment This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Seasons 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 Seasons stated herein. 18. Waiver of Breach. A waiver by either party hereto of a breach by the other City of Yakima - Seasons Performance Hall Agreement Page 3of6 party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 19. Termination. Either party may terminate this Agreement, with or without cause, by giving the other party thirty (30) days written notice of termination prior to the termination date. 20. Termination /Reduction of Services Due to Withdrawal, Reduction or Limitation of Funding. in the event that funding from any source is withdrawn, reduced and /or limited in any way after the effective date of and prior to completion of . this Agreement, the City may unilaterally reduce the scope of services, work and compensation of this Agreement, or summarily terminate this Agreement notwithstanding any other termination provisions of this Agreement. Termination under this section shall be effective upon hand delivery or delivery by facsimile of a written notice of termination to Seasons, or three (3) calendar days after mailing (by first class mail) of a written notice of termination to Seasons, whichever is sooner. 21. Survival. Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this agreement and shall be binding on the parties to this Agreement. 22. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 23. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: Ken Wilkinson Parks and Recreation Manager City of Yakima Public Works Parks and Recreation Division 2301 Fruitvale Boulevard Yakima, WA 98902 TO SEASONS: Ellie Strosahl 101 N. Naches Avenue Yakima, WA 98901 or to such other addresses as the parties may hereafter designate in writing. Notices and /or demands shall be sent by registered or certified mail, postage prepaid or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 24. Third Parties. The City and Seasons are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide, any right or benefit, whether directly or indirectly or otherwise, to third persons. City of Yakima - Seasons Performance Hall Agreement Page 4 of 6 • 25. Drafting of Agreement. Both the City and Seasons have participated in the drafting of this Agreement. As such, it is agreed by the parties that the general contract rule of law that ambiguities within a contract shall be construed against the drafter of a contract shall have not application to any legal proceeding, arbitration and /or action in which this Agreement and its terms and conditions are interpreted and /or enforced. 26. 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. 27. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 28. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 29. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same Agreement. 30. Authority. The person executing this Agreement on behalf of Seasons represents and warrants that he or she has been fully authorized by Seasons to execute this Agreement on its behalf and to legally bind Seasons to all the terms, performances and provisions of this Agreement. CITY OF YAKIMA: SEASONS PERFO - .H LL: By: OV BY: ' .� I j I Q—A -=a;s. -. City Manager Ili - trosa - 'u smess Manager M l c_hae.1 Mo ia:4e:s, kc+ ►� q Date: /—if Date: ATTEST: • oki Mq Og 1s t City Clerk Or SEMI' 9 4 c i City Contract No. i / kj Ste' ;� Resolution No. /4a0// -Ja City of Yakima-Seasons Performance Hall Agreement Page 5 of 6 • • EXHIBIT "A" • • AREAS OF RESPONSIBILITY The City of Yakima Parks and Recreation Division shall: A. Help promote the development of the website and provide additional assistance if possible. B. Meet with Seasons to review and make recommendations for future City involvement.. 2. The Seasons shall: A. Provide the City's Parks and Recreation Manager a project status report listing information including invoicing for website improvements. B. Use its best efforts to make City residents aware of the website. List "City of Yakima" as a co- sponsor on promotional materials. C. Provide a written financial report to the City's Parks and Recreation Manager and supply invoices from the service provider which specifically illustrates how much was actually spent on continued building and development of the website. • City of Yakima -Seasons Performance Hall Agreement Page 6 of 6 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. *# I ` For Meeting of: January 18, 2011 ITEM TITLE: Consideration of a Resolution authorizing an Agreement with The Seasons Performance Hall for strategic website development that took place in 2010. SUBMITTED BY: Chris Waarvick, Director of Public Works Ken Wilkinson, Parks and Recreation Manager CONTACT PERSON/TELEPHONE: Ken Wilkinson, 575 -6020 SUMMARY EXPLANATION: As part of a targeted promotional campaign to draw tourists to the Yakima area, The Seasons Performance Hall, a non - profit organization, wanted to expand its Internet website to include an arts and entertainment venue for all to enjoy allowing them to reach out to a wider audience. During the 2010 budget process, the City Council approved The Seasons Performance Hall outside agency policy request for financial support in the amount of $4,000 for the purpose of promotionally expanding its internet website. However, receipt of required deliverables and financial report information about the website upgrade was delayed until the first part of December 2010. Attached for Council consideration is a resolution authorizing an Agreement between the City of Yakima and The Seasons Performance Hall for its Internet website expansion and programming services that took place in 2010. Resolution X Ordinance Other (Specify) Agreement Mail to (name and address): Ellie Strosahl, 201 North Naches Avenue, Yakima, WA 98901 Funding Source: 2010 Parks & Recreation Budget- $4,000 APPROVED FOR SUBMITTAL: L , �y City Manager STAFF RECOMMENDATION: Staff respectfully requests the City Council to adopt the Resolution authorizing the City Manager of the City of Yakima to execute an Agreement between the City of Yakima and Seasons Performance Hall for strategic website development that took place in 2010. BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: Seam= Peftnamea • � d