HomeMy WebLinkAbout5634 RESOLUTION NO. 5634
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
EXECUTE AN AGREEMENT BETWEEN THE CITY OF
AUBURN AND THE AUBURN SYMPHONY ORCHESTRA
FOR TOURISM PROMOTION SERVICES
WHEREAS, the City is interested in promoting and marketing Auburn as a tourist
Destination; and
WHEREAS, there are performing art activities of which would be beneficial to the
City and to the residents and businesses of the City; and
WHEREAS one source of such activities is the Auburn Symphony Orchestra, the
Service Provider, herein; and
WHEREAS, a program of advertising for such performances and events would
help to insure the success of such activities by informing people about them encouraging
people to attend and attracting tourists to the City; and
WHEREAS, in order to advertise the City, attract visitors, and encourage tourism
it would be advantageous for the City to contract with the Service Provider for promotional
services in connection therewith.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RESOLVES as follows:
Section 1. The Mayor is authorized to execute an Agreement between the City
and the Auburn Symphony Orchestra, which agreement will be in substantial conformity
with the agreement attached as Exhibit A.
Section 2. The Mayor is authorized to implement those administrative
procedures necessary to carry out the directives of this legislation.
Resolution No. 5634
December 6, 2021
Page 1 of 2 Rev.2021
Section 3. This Resolution will take effect and be in full force on passage and
signatures.
Dated and Signed: December 6, 2021
CITY OF AUBURN
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ATTEST: APPROVED AS TO FORM:
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Shawn Campbell, MMC,' ity Clerk Kendra Comeau, City Attorney
Resolution No. 5634
December 6, 2021
Page 2 of 2 Rev.2021
DocuSign Envelope ID:OFCODEF7-C1 BF-46F1-97AB-84358315F518
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WASHINGTON
CITY OF AUBURN and AUBURN SYMPHONY ORCHESTRA
CONTRACT FOR SERVICES
THIS CONTRACT is made and entered into on the 10 day of December, 2021, by and
between the CITY OF AUBURN, a municipal corporation of the State of Washington (the "City"),
and the AUBURN SYMPHONY ORCHESTRA, a not-for-profit corporation organized pursuant to
26 U.S.C. 501 (C)(3)(the"Service Provider"or"ASO"and collectively,the"Parties").
In consideration of the conditions and the mutual promises and covenants contained in this
Agreement,the parties agree as follows:
1. SCOPE OF SERVICES BY SERVICE PROVIDER The Service Provider will engage, enrich
and inspire our community through artistically vibrant performances; will uphold the highest
artistic and professional standards; will present a broad range of repertoire; will serve a wide and
diverse audience; and will provide quality educational experiences for all ages. Service Provider
will provide classical music opportunities to area youth through reduced ticket prices to concerts
as well as outreach to Auburn area schools. Service Provider will actively participate in
community events and include City of Auburn logo in all applicable promotional materials.
Service Provider will comply with requirements listed in Attachment"A."
2. TERM OF CONTRACT: The Term of this Contract will be from January 1, 2022, through
December 31,2022.
3. COMPENSATION TO SERVICE PROVIDER:
a. The Parties understand that the Service Provider operates on a fiscal year that runs from
July 1 through the following June 30, and that its concert season is consistent with its
fiscal year. The City's fiscal year is from January 1 through the following December 31.
The Parties agree that the marketing services provided throughout the year are adequate
consideration for the City to pay the Service Provider its full consideration due for the
calendar year by the end of June each year in order to support the Service Provider's
budget cycle.
b. The total contract is for $75,000 per calendar year, which will be paid as set forth in
Attachment"B."
c. Invoicing and Reports. The Service Provider will submit invoices and reports not later
than 30 calendar days before payment is due. For each reporting period, the Service
Provider will provide report outlining how the Service Provider met the performance
measures set forth in this Agreement.
4. NON-APPROPRIATION OF FUNDS: If sufficient funds are not appropriated or allocated for
payment under this Agreement for any future fiscal period,the City will not be obligated to make
payments for Services or amounts incurred after the end of the current fiscal period, and this
Agreement will terminate upon the completion of all remaining Services for which funds are
allocated. No penalty or expense shall accrue to the City in the event this provision applies.
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5. RECORDS INSPECTION AND AUDIT. All payments will be subject to the adjustments for
any amounts found upon audit or otherwise to have been improperly invoiced, and all records
and books of accounts pertaining to any work performed under this Agreement will be subject to
inspection and audit by the City for a period of up to three (3) years from the final payment for
work performed under this Agreement. If any litigation, claim, dispute, or audit is initiated
before the expiration of the three (3) pear period, all records and books of account pertaining to
any work performed under this Agreement will be retained until all litigation,claims,disputes,or
audits are resolved.
6. CONTINUATION OF PERFORMANCE. In the event that any dispute or conflict arises
between the parties while this Contract is in effect, the Service Provider agrees that,
notwithstanding such dispute or conflict, the Service Provider shall continue to make a good
faith effort to cooperate and continue work toward successful completion of assigned duties and
responsibilities. Nothing in this section is intended to restrict or otherwise limit the Parties rights
of termination set forth elsewhere in this Contract.
7. CONTRACT ADMINISTRATION: This Contract will be administered by Auburn Symphony
Orchestra Manager on behalf of the Service Provider and by Mayor or the Mayor's designee on
behalf of the City. Any written notices required by terms of this Contract will be served or
mailed to the following addressees unless changed by written notice to the other Party:
If to the City: City of Auburn,25 West Main Street,Auburn WA 98001
If to the Service Provider: Auburn Symphony Orchestra,P.O.Box 2186, Auburn WA 98071
8. NOTICES: All notices or communications permitted or required to be given under this
Agreement will be in writing and will be deemed to have been duly given if delivered in person
or sent by regular mail, postage prepaid, [by certified mail, return receipt requested,] and
addressed, if to a party of this Agreement, to the address for the party set forth above. If
addressed to a non-party, the notice will be sent, in the foregoing manner, to the address
designated by a party to this Agreement.
9. INSURANCE: The Service provider shall procure and maintain insurance against claims for
injuries to persons or damage to property which may arise from or in connection with the
performance of the work hereby by Service Provider, its agents,representatives,or employees,
without interruption from commencement of the Service provider's work through the term of the
contract and for thirty(30) days after the completion of this contract date,unless otherwise
indicated.
A. No Limitation. The Service provider's maintenance of insurance, its scope of coverage
and limits as required herein shall not be construed to limit the liability of the Service
provider to the coverage provided by such insurance, or otherwise limit the City's
recourse to any remedy available at law or in equity.
B. Minimum Scope of Insurance. The Service provider's required insurance shall be of the
types and coverage as stated below:
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1. Automobile Liability insurance covering all owned, non-owned,hired and leased
vehicles. Coverage shall be at least as broad as Insurance Services Office(ISO)
form CA 0001.
2. Commercial General Liability insurance will be at least as broad as ISO
occurrence form CG 00 01 and will cover liability arising from premises,
operations, stop-gap independent contractors, products-completed operations,
personal injury and advertising injury, and liability assumed under an insured
contract. The City will be named as an additional insured under the Provider's
Commercial General Liability insurance policy with respect to the work
performed for the City using an additional insured endorsement at least as broad
as ISO Additional Insured endorsement CG 20 26. Commercial General
Liability insurance will be written with limits no less than $2,000,000 each
occurrence, $2,000,000 general aggregate
3. Workers' Compensation coverage as required by the Industrial Insurance laws of
the State of Washington.
C. Minimum Amounts of Insurance. The Service provider shall maintain the following
insurance limits:
1. Automobile Liability insurance with a minimum combined single limit for bodily
injury and property damage of$1,000,000 per accident.
2. Commercial General Liability insurance shall be written with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000
products-completed operations aggregate limit.
D. City Full Availability of Service provider Limits. If the Service provider maintains
higher insurance limits than the minimums shown above,the City shall be insured for
the full available limits of Commercial General and Excess or Umbrella liability
maintained by the Service provider, irrespective of whether such limits maintained by
the Service provider are greater than those required by this contract or whether any
certificate of insurance furnished to the City evidences limits of liability lower than
those maintained by the Service provider.
E. Other Insurance Provision. The Service provider's Automobile Liability and
Commercial General Liability insurance policies are to contain, or be endorsed to
contain that they shall be primary insurance as respect the City. Any insurance, self-
insurance, or self-insured pool coverage maintained by the City shall be excess of the
Service provider's insurance and shall not contribute with it.
F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best rating of not less than A: VII.
G. Verification of Coverage. The Service provider shall furnish the City with original
certificates and a copy of the amendatory endorsements,including but not necessarily
limited to the additional insured endorsements,evidencing the insurance requirements
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of the Service provider before commencement of the work. Upon request by the City,
the Service provider shall furnish certified copies of all required insurance policies,
including endorsements, required in this contract'and evidence of all subservice
providers' coverage.
H. Subservice providers' Insurance. The Service provider shall cause each and every
Subservice provider to provide insurance coverage that complies with all applicable
requirements of the Service provider-provided insurance as set forth herein,except the
Service provider shall have sole responsibility for determining the limits of coverage
required to be obtained by Subservice providers. The Service provider shall ensure
that the City is an additional insured on each and every Subservice provider's
Commercial General liability insurance policy using an endorsement as least as broad
as ISO CG 20 10 10 01 for ongoing operations and.CG 20 37 10 01 for completed
operations.
I. Notice of Cancellation. The Service provider shall provide the City and all Additional
Insureds for this work with written notice of any policy cancellation within two
business days of their receipt of such notice.
J. Failure to Maintain Insurance. Failure on the part of the Service provider to maintain the
insurance as required shall constitute a material breach of contract,upon which the
City may, after giving five business days' notice to the Service provider to correct the
breach, immediately terminate the contract or, at its discretion,procure or renew such
insurance and pay any and all premiums in connection therewith, with any sums so
expended to be repaid to the City on demand,or at the sole discretion of the City,
offset against funds due the Service provider from the City.
10. INDEMNIFICATION: Service Provider will defend,indemnify and hold the City, its
officers,officials, employees and volunteers harmless from any and all claims,injuries,
damages,losses or suits including attorneys' fees, arising out of or in connection with the
performance of this Agreement,except for injuries and damages caused by the sole
negligence of the City.
It is further specifically and expressly understood that the indemnification provided
constitutes the Service Provider's waiver of immunity under Industrial Insurance,Title 51
RCW, solely for the purposes of this indemnification. This waiver has been mutually
negotiated by the parties. The provisions of this section shall survive the expiration or
termination of this Agreement.
11. RESTRICTION AGAINST ASSIGNMENT: Service Provider will not assign this Contract
or any interest nor any money due or to become due without first obtaining the written
consent of the City. Service Provider will not subcontract any part of the services to be
performed without first obtaining the written consent of the City.
12. AMENDMENT MODIFICATION OR WAIVER: No amendment, modification, or waiver
of any condition, provision, or term of this Agreement will be valid or of any effect unless
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made in writing, signed by the party or parties to be bound, or the party's or parties' duly
authorized representative(s) and specifying with particularity the nature and extent of such
amendment,modification or waiver. Any waiver, approval or acceptance, or payment by any
party will not affect or impair that party's rights arising from any default by the other party.
13. TERMINATION AND SUSPENSION: Either Party may terminate this Contract upon ninety
(90) days written notice to the other Party. If the Service Provider has performed services
pursuant to the Contract, the Service Provider will be compensated for such services in
accordance with the rate of compensation provided in Attachment"B."
14. PARTIES IN INTEREST: This Contract will be binding upon and the benefits and
obligations provided for inure to and bind the Parties and their respective successors and
assigns provided that this section will not be deemed to permit any transfer or assignment
otherwise prohibited by this Contract. This Contract is for the exclusive benefit of the Parties
and it does not create a contractual relationship with or for the benefit of any third party,
including contractors, subcontractors, and their sureties.
15. COSTS TO PREVAILING PARTY: In the event of litigation or other legal action to enforce
any rights responsibilities or obligations under this Contract, the prevailing Party will be
entitled to receive its reasonable costs and attorney's fees.
16. FORCE MAJEURE: Any delay in the performance of any obligation under this Agreement
shall be excused, if and so long as the performance of the obligation is prevented, delayed or
otherwise hindered by any act not within the control of a party such as fire,
cyber/ransomware attack, earthquake,flood, explosion, actions of the elements, riots,mob
violence, strikes,pandemic,lockouts, and emergency orders of the state or federal
government.
17. INDEPENDENT CONTRACTOR. The Provider will perform the services as an
independent contractor and will not be deemed,by virtue of this Agreement and performance
of its provisions, to have entered into any partnership, joint venture, employment or other
relationship with the City. Nothing in this Agreement creates any contractual relationship
between the Provider's employee,agent,or subcontractor and the City.
18. APPLICABLE LAW: This Contract and the rights of the Parties will be governed by and
interpreted in accordance with the laws of the State of Washington and venue for any action
will be King County, Washington. The Parties agree and understand that any applicable
statute of limitation will commence no later than the substantial completion by the Service
Provider of the services.
19. CAPTIONS HEADINGS AND TITLES: All captions headings or titles in the paragraphs or
sections of this Contract are inserted for convenience of reference only and shall not
constitute a part of this Contract or act as a limitation of the scope of the particular paragraph
or sections to which they apply As used herein where appropriate the singular shall include
the plural and vice versa and masculine feminine and neuter expressions shall be
interchangeable Interpretation or construction of this Contract shall not be affected by any
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December 6,2021
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determination as to who is the drafter of this Contract this Contract having been drafted by
mutual agreement of the Parties.
20. SEVERABLE PROVISIONS: Each provision of this Contract is intended to be severable. If
any provision is found by a court of competent jurisdiction to be illegal or invalid or not
applicable to any person or circumstance for any reason whatsoever such illegality invalidity
or non-applicability will not affect the legality or validity of the remainder of this Contract or
its applicability to other persons or circumstances.
21. ENTIRE AGREEMENT: This Contract contains the entire understanding of the Parties and
supersedes all prior agreements contracts and understandings between the Parties with
respect to such subject matter.
22. COUNTERPARTS: This Contract may be executed in multiple counterparts and will become
effective when one or more counterparts have been signed by each of the Parties and
delivered to the other Party.
IN WITNESS WHEREOF the Parties hereto have caused this Contract to be executed effective the
day and year first set forth above:
AUBURN SYMPHONY ORCHESTRA CITY OF AUBURN
r--Data Sipnetl by: Doeuslpn,tl by:
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Nancy Backus, Mayor
Executive Director
Title:
12/10/2021 12/10/2021
Date: Date:
APPROVED AS TO FORM:
«„sgnaa by:
C
Kendra Comeau,City Attorney
2022 Auburn Symphony Orchestra Contract
December 6,2021
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DocuSign Envelope ID:OFCODEF7-C1 BF-46F1-97AB-84358315F518
Service provider: Auburn Symphony Orchestra
Contract#
ATTACHMENT A
Scope of Services
Scope of Work:
1. Auburn Symphony Orchestra (ASO) will engage, enrich and inspire our community through
artistically vibrant performances; will uphold the highest artistic and professional standards;
will present a broad range of repertoire; will serve a wide and diverse audience; and will
provide quality educational experiences for all ages.
2. ASO will produce, if health and safety protocols allow, a minimum of eight programs
digitally distributed and/or with a live audience.
3. ASO will work to contribute to the economy of Auburn via the Arts.
4. ASO will conduct outreach into Auburn public schools and offer reduced price student
tickets.
5. ASO will conduct outreach to new audiences through programming and marketing efforts.
6. Participate in community events and/or festivals as health and safety protocols allow through
hosting a booth and/or partnering to present programming as part of the event program.
Service Provider Agrees to:
1. Credit the City of Auburn in all appropriate public announcements,programs,advertising, and
other forms of notice relating to the activity and service covered under this agreement and
produced by, for, and under the direction of the organization. Where possible, the City of
Auburn logo should be used. If logo is not appropriate,ASO may list the funder as: City of
Auburn.
2. Provide access, as health and safety protocols allow,to members of the City Council and
Auburn Arts Commission for purposes of evaluation.
3. Meet with the City Council,Arts Commission, or the Arts Coordinator once during the
contract period,to provide information regarding programming and administration of the
programs.
4. Provide the City of Auburn reports and data as outlined as part of the payment schedule.
5. Make available to the City of Auburn the service providers financial and other records,upon
request,to determine compliance with this agreement.
6. Include City Council members and Arts Commissioners in their mailing list.
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December 6,2021
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Service provider: Auburn Symphony Orchestra
Contract#
ATTACHMENT B
Compensation
Payment Schedule
Phase I: To be completed by January 31, 2022. Not to Exceed$25,000.00 upon receipt or completion of
the following:
• Full execution of this contract
• Receipt of completed invoice
• Receipt of schedule of activities and programming for 2021-22 performing arts season
• Submission of a collection of printed and digital advertising material and copies of paid advertisements
completed between June 2021 and January 2022'
• Attendance reports for concerts(from September 2021 through January 31,2022);including zip code
demographic summary of patrons and student discount tickets claimed,and tracking of new versus
returning attendees.For virtual/digital concerts,please include metrics from YouTube and other social
media showing reach,hours watched and any other metrics showcasing viewership.
• Outline summary of outreach activities and community participation efforts
• Receipt of annual report from prior ASO fiscal year and
• Submission of marketing plan and budget for ASO 2021-2022 performing arts season.
Phase TT: To be completed by March 31, 2022. Not to exceed $25,000.00 upon receipt or completion of
the following:
• Receipt of completed invoice
• Submission of a collection of printed and digital advertising material and copies of paid advertisements
completed between January 2022 and March 2022
• Attendance reports for ASO concerts(from February 1-March 31,2022);including zip code demographic
summary of patrons and student discount tickets claimed,and tracking of new versus returning attendees.
For virtual/digital concerts,please include metrics from YouTube and other social media showing reach,
hours watched and any other metrics showcasing viewership.
• Outline summary of outreach activities and community participation efforts.
Phase III: To be completed by June 5, 2022.Not to exceed$25,000.00 upon receipt or completion of the
following:
• Receipt of completed invoice
• Submission of a collection of printed and digital advertising material and copies of paid advertisements
completed between March 2022 and June 5,2022
• Attendance reports for ASO concerts(from March 31-June 4,2022);including zip code demographic
summary of patrons and student discount tickets claimed,and tracking of new versus returning attendees.
For virtual/digital concerts,please include metrics from YouTube and other social media showing reach,
hours watched and any other metrics showcasing viewership.
• Outline summary of outreach activities and community participation efforts and
• Summary of annual fundraiser.
NOTE:While this Contract covers performances in 2021 and 2022,references arc made to the ASO's 2021-2022 season,
which includes periods covered in this Contract.
2022 Auburn Symphony Orchestra Contract
December 6,2021
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