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HomeMy WebLinkAboutR-2009-049 Youth Music Programs Agreement with the Yakima Symphony OrchestraRESOLUTION NO. R-2009-49 A RESOLUTION authorizing the City Manager of the City of Yakima to execute an Agreement with the Yakima Symphony Orchestra (hereafter "YSO") for the purpose of providing music educational opportunities and programs for youth in the community and enhancing Yakima's quality of life. WHEREAS, the City Council of the City of Yakima desires to enhance the quality of life in Yakima, provide positive music educational opportunities for youth in the community, and build a safe community for its citizens; and WHEREAS, the YSO is an independent, non-profit corporation that is committed to improving the community by providing musical entertainment and education, and YSO has been active in the Yakima community for over forty years; WHEREAS, the City wishes to utilize the skill, experience, and expertise of YSO to assist in enhancing Yakima's quality of life; and WHEREAS, the YSO staff possess skills, experience and expertise in the development of musical programs, including music educational programs for youth, which will contribute to the quality of life in the community and will contribute to positive opportunities and programs for youth, thus enhancing community well-being and a safe community; and WHEREAS, the City and the YSO wish to enter into an Agreement for one year, with a term of January 1, 2009 to December 31, 2009; and WHEREAS, the YSO represents that it has the expertise necessary and is willing to perform the services in accordance with the terms and conditions of the Agreement; and WHEREAS, the City Council finds it to be in the best interest of the City of Yakima to authorize the City Manager to execute an Agreement with the Yakima Symphony Orchestra for the purpose of providing positive educational opportunities for youth in the community and enhancing the quality of life in Yakima; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Council authorizes the City Manager to execute an Agreement with the Yakima Symphony Orchestra (UYSO") for the services provided in the Agreement, which is entitled "Agreement Between the City of Yakima and Yakima Symphony Orchestra." ADOPTED BY THE CITY COUNCIL this 24th of March, 2009. ATTEST: avid • e , Mayor 4- zooq AGREEMENT BETWEEN THE CITY OF YAKIMA AND YAKIMA SYMPHONY ORCHESTRA THIS AGREEMENT (hereafter "Agreement") is made and entered into by and between the CITY OF YAKIMA (hereafter "City"), a Washington municipal corporation, and the YAKIMA SYMPHONY ORCHESTRA (hereafter "YSO"), a Washington non-profit corporation. WHEREAS, the City Council of the City of Yakima desires to enhance the quality of life in Yakima, provide positive educational opportunities for youth in the community, and build a safe community for its citizens; and WHEREAS, the YSO has provided musical entertainment and education for many and has been active in the community for over 40 years, and is a nonprofit corporation under section 501(c)(3) of the Internal Revenue Code; and WHEREAS, the City wishes to utilize the skill, experience, and expertise of YSO to assist in enhancing Yakima's quality of life; and WHEREAS, YSO staff possesses skills, experience and expertise in the development of musical programs, including musical educational programs for youth, which will contribute to the quality of life in the community and will contribute to positive opportunities and programs for youth, thus enhancing community well-being and a safe community; and NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and YSO as follows: 1. SCOPE OF SERVICES. YSO will maintain a professional staff and will provide professional services to the City and shall dedicate its best efforts for the purpose of enhancing the quality of life in Yakima and building a safe community for its citizens through music educational programs for youth. YSO's efforts under this Agreement shall conform to all applicable federal, state, and local laws, and to all standards of professional skill, competence and care in the music educational profession. YSO will provide music educational programs for youth, and foster opportunities for youth to be exposed to music. YSO's services to the City shall include, but not be limited to, planning and implementation of the following music programs for youth: a. Educational Musical Outreach Program for Fourth Grade Students — Three ensembles of brass, string and woodwinds will travel to schools in the City of Yakima to play for fourth grade students so the students are familiar with the instruments the year before they may choose a musical instrument to study in band and orchestra in fifth grade. b. Capitol Theatre Musical Performance for Fourth and Fifth Grade Students in May — In May approximately 3,000 students will be brought to the Capitol Theatre by various schools to hear families of instruments of brass, string and woodwinds play together in a 45 -minute concert designed especially for fourth and fifth grade students. 1 c. Guest Musical Artists — YSO will introduce guest musical artists to youth through recitals and master classes. d. Collaboration with Seattle Opera on Opera for Elementary School Children — YSO's partnership with Seattle Opera provides the opportunity to bring an opera written and adapted for elementary school children to a school in the Yakima Valley each year. e. Student Ticket Prices Available for All Concerts — The YSO offers student ticket prices to all concerts in order to make the concert experience available to as many students as possible. 2. PERIOD OF PERFORMANCE. The period of performance under this Agreement will be one year, commencing at 12:01 a.m. on January 1, 2009, and continuing until midnight on December 31, 2009, unless earlier terminated by either party in accordance with Section 18 of this Contract. 3. COMPENSATION, METHOD OF PAYMENT, REPORTING. Total compensation for this contract shall not exceed Ten Thousand Dollars ($10,000.00) during the contract period beginning January 1, 2009, as approved in the 2009 City of Yakima budget. YSO has represented that its work in connection with the services and activities described in Section 1, "Scope of Services" above is performed and accomplished between January 1 and June 30 of each year. YSO shall receive reimbursement at the end of the first and second quarters of the year for its services performed within the preceding quarterly period. The annual compensation of $10,000 shall be paid by the City to YSO in two equal installments of $5,000 each in two three-month intervals. The first invoice for services performed from January 1 through March 31 shall be submitted by YSO to the City on or before April 15 of the year, and YSO's second invoice for its services performed from April 1 through June 30 shall be submitted by YSO to the City on or before July 15, 2009. Each of YSO's invoices shall include a description of the services performed during the applicable quarter, and any reimbursable costs and expenses incurred in connection with such services. YSO also shall submit one annual report to the City detailing accomplishment of the above services and work performed through June 30 of the year as specified in Section 1, "Scope of Services" above. VSO's annual report detailing work and services performed through June 30 shall be due on or before July 15, 2009. 4. TAXES AND ASSESSMENTS. YSO 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, YSO shall pay the same before it becomes due. 5. ESTABLISHMENT AND MAINTENANCE OF RECORDS. YSO shall maintain accounts and records, including personnel, property, financial, and program records, and such other records as the City may deem necessary, including a system of intemal controls and accounting systems which conform to generally accepted accounting principles and auditing standards. This is to ensure proper accounting for all funds provided under this Agreement. All such records and documents shall be retained by YSO and be 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. 2 6. AUDITS AND INSPECTIONS. a. YSO shall provide access of facilities to the City, the state and/or federal agencies or officials at reasonable times to monitor and evaluate the services : provided under this Agreement. The City will give advance notice to YSO in the case of fiscal audits, pertaining to the services provided under this Agreement, to be conducted by the City. b. Records and documents pertaining to services provided under this Agreement shall be subject at all reasonable times to inspections, review, or audit by the City and/or duly authorized federal/state officials, including but not limited to, the Washington State Examiner. The City will give advance notice to YSO in the event an inspection of records is required, which may include a quarterly on-site audit and inspection of financial records. c. If YSO has its annual financial statement audited by an independent certified public accountant during the period of this Agreement, one copy of such audit shall be provided to the City. 7. REVIEW AND EVALUATION. YSO agrees to cooperate with the City or its agent in the City's annual review and evaluation of YSO's performance under this Agreement and to make available all information reasonably required for any such evaluation process. 8. INSURANCE. Commercial General Liability Insurance: On or before the effective date of this Agreement, YSO shall provide the City with a certificate of insurance as proof of commercial general liability insurance in the amount of One Million Dollars ($1,000,000.00) combined single limit bodily injury and property damage that clearly states 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 of Yakima, its elected officials, officers, agents, employees and volunteers 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. If the City is damaged by the failure of YSO to maintain the above insurance or to so notify the City, then YSO shall bear all costs attributable thereto. 9. INDEMNIFICATION. YSO shall defend, indemnify, and hold harmless the City, its officers, elected officials, employees and agents from and against any and all claims, causes of action, damages, losses, ;;and expenses of any kind or nature whatsoever, including but not limited to, attomey's fees [and court costs, arising out of, relating to, or resulting from VSO's performance or non-performance of the services, duties and obligations required of it under this Agreement. 10. NONDISCRIMINATION. During the performance of this Agreement, YSO 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, 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 3 termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 11. PROHIBITED ACTS. YSO shall use all consideration provided under this Agreement solely to pay for labor, equipment, materials, and overhead in its operations and for the services to be provided by YSO as described in Section 1, "Scope of Services". It shall not use such consideration as loans, grants, or gifts to public or private entities for any purpose whatsoever. Violation of the provision of this Section shall be cause of immediate termination of this Agreement, notwithstanding any other provision contained herein, and YSO shall repay to the City any funds transferred in violation of this Section. 12. INDEPENDENT CONTRACTOR STATUS OF CITIZENS. YSO and the City understand and expressly agree that YSO is an independent contractor in the performance of each and every part of this Agreement. YSO, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. Additionally, and as an independent contractor, YSO 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. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between YSO or any officer, employee or agent of YSO and the City. 13. INTEGRATION. 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. 14. MODIFICATIONS. Either party may request modifications to this Agreement but no proposed modifications to this Agreement shall be valid or binding upon either party unless such modification is in writing and executed by both parties. 15. ASSIGNMENT. This Agreement, or any interest herein, shall not be assigned or transferred in whole or in part by YSO 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 YSO stated herein. 16. NON -WAIVER. The waiver of either the City or YSO of the breach of any provision of this Agreement by the other party shall not operate and/or be construed as a waiver of any subsequent breach by either party or prevent either party thereafter enforcing such provision. 17. 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. 18. TERMINATION. This Agreement may be terminated, with or without cause, prior to the date specified above in Section 2, by written notice from either party to the other thirty (30) days in advance of the termination. In the event of termination, the amount of compensation shall be prorated monthly to the nearest full month of service. 19. SURVIVAL. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this agreement and shall be binding on the parties to this Agreement. 4 20. NOTICES. Unless stated otherwise herein, all notices and demands shall be in writing and sent to the parties to their addresses as follows: TO CITY: TO YSO: R. A. Zais, Jr., City Manager City of Yakima 128 N. Second Street Yakima, WA 98901 Noel H. Moxley, Executive Director Yakima Symphony Orchestra 32 North Third Street, Suite 333 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. 21. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 22. VENUE. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA YAKIMA SYMPHONY ORCHESTRA Richard A. Zais, Jr., City Manager Date: ATTEST: By City Clerk City Contract No.: cW Resolution No.: iS -o?/ /?9-19 /JJ/' �� By � � oel H. Moxley, Executive Director Date: J47 A 5 STATE OF WASHINGTON ) COUNTY OF YAKIMA ss. I hereby certify that I know or have satisfactory evidence that Noel H. Moxley is the person who appeared before me, and said person acknowledged that she signed this instrument, and on oath stated that she was authorized to execute the instrument and acknowledged it as the Executive Director of the Yakima Symphony Orchestra to be the free and voluntary act of such party for the ,uses and purposes mentioned in the instrument. <, APP11 DATED this day of-MercW009. Print Name / -t-h ri C'D , 'per S i 1 NOTARY PUBLIC in and for the Stat of Washington, residing at K,.,, - My appointment expires: fi� ( 3, 0 is 6 • • • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. J� For Meeting of March 24, 2009 ITEM TITLE: authorizing the City Manager of the City of Yakima to execute an Agreement with the Yakima Symphony Orchestra (hereafter "YSO") for the purpose of providing music educational opportunities and programs for youth in the community and enhancing Yakima's quality of life. SUBMITTED BY: Chris Waarvick, Director of Public Works Ken Wilkinson, Parks & Recreation Manager CONTACT PERSON/TELEPHONE: Chris Waarvick, Director of Public Works, 575-6005 Ken Wilkinson, Parks & Recreation Manager, 576-6416 SUMMARY EXPLANATION: On December 1, 2008, the City Council, through motion, approved a request from the Yakima Symphony Orchestra ("YSO") for new support to provide music programs for youth in 2009, and for YSO to be paid $10,000 in exchange for its services. YSO will submit two invoices, one for the first quarter and one for the second quarter. As described in the attached Agreement, YSO will provide a number of music educational programs for youth in the fourth through twelfth grades, including but not limited to ensembles traveling to schools and playing for fourth grade students; musical performances on a day in May where approximately 3,000 students are brought by their schools to the Capitol Theatre for a 45 -minute concert; and a collaboration with Seattle Opera where an opera written and adapted for elementary school children is brought to a school in the Yakima Valley each year. The programs and services to be provided are described in the Agreement. YSO is a nonprofit corporation registered with the Washington Secretary of State and which has 501(c)(3) tax-exempt status with the IRS. YSO provides musical entertainment and education, and has been active in the Yakima community for over forty years. Resolution X Ordinance Other (Specify) Contract X Mail to (name and address): Noel H. Moxlev, Executive Director, Yakima Symphony Orchestra, 32 N. Third Street, Suite 333, Yakima, WA 98901 Phone: 248-1414 Funding Source General Fund APPROVED FOR SUBMITTAL: 47City Manager STAFF RECOMMENDATION: Adopt Resolution. BOARD/COMMISSION/COMMITTEE RECOMMENDATION: COUNCIL ACTION: