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.
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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.
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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
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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.
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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
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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: