Loading...
HomeMy WebLinkAboutCAP 2014-06-10 Item 2D - Interlocal Agreement - Amendments to Interlocal Agreement with Tukwila Pool Metropolitan Park DistrictCity of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Community Affairs and Parks Committee FROM: David Cline, City Administrator DATE: June 5, 2014 SUBJECT: Amendments to the Interlocal Agreement for Pool Operations and Support Services ISSUE The Tukwila Pool Metropolitan Park District (TPMPD) is recommending making revisions to the current Interlocal Agreement for Pool Operations and Support Services with the City of Tukwila ( "ILA "). BACKGROUND The City of Tukwila and the TPMPD approved the current ILA for the City to continue to provide Operation and Support Services to the Tukwila Pool in December 2013. Over the past few months, the TPMPD has proposed several revisions to the ILA and has asked the City Administration and City Council to review these changes. This was also brought forward for discussion at the March 25, 2014 Community Affairs and Parks Committee (CAP). At that time, there was agreement to have the TPMPD finish their proposed revisions and then to have these revisions reviewed by the City Council. The City Attorney has commented on these revisions. Any final amendments to the ILA will have to be approved by both the City Council and the TPMPD Board. DISCUSSION The TPMPD Board is proposing that language be drafted to cover the following topics: 1. Dispute Resolution 2. Termination for non - payment, lack of insurance or material breach of contract 3. Accountability and Reporting — including a work plan with measurable goals, financial and other reports and performance audits 4. Cost controls — setting an annual cap on spending beyond which additional approval would be required 5. Policies and Procedures — reserving TPMPD's right to adopt reasonable policies in the future that set a different standard and would supersede previous policies once adopted. The following attachments provide a crosswalk from the current ILA to the most recently proposed ILA that the City Attorney and the TPMPD Attorney have agreed upon. The CAP is now being asked to review this language and provide direction on any additional changes or modifications to this agreement. • Attachment A is the current ILA signed by both parties in December 2013 • Attachment B is City Attorney Memo to the TPMPD attorney regarding the final list of proposed changes to the ILA. • Attachment C is the final amended ILA with all changes shown from the original. 7 8 INFORMATIONAL MEMO Page 2 The actual changes by section are discussed below: Section Item Requested Change Notes 1.1 Change day of termination by one day, to 12/31/2015 instead of 1/1/2016 Both parties Minor administrative change 1.1.1 Termination for non - payment Requested by TPMPD No concerns, current expectation is that TPMPD will reimburse City on a timely basis 1.1.2 Termination for failure to carry insurance Requested by TPMPD No concerns, not an issue since both entities carry WCIA 1.1.3 Termination without Cause Requested by TPMPD and City Agreed to by both parties, allows for reasonable transition of 120 days if a change in service 2.4 Change "will cost" to "are estimated to cost" Requested by City Minor administrative change to clarify cost structure 2.5 Cost Controls Requested by TPMPD See City Attorney Memo — Attachment B: City should recover its full cost of services. NOTE: The first four months of administrative costs have been below the original estimated costs for these services. 2.6 Employees Requested by TPMPD Minor administrative change 4.1 to Accountability and Requested by TPMPD See City Attorney Memo — 4.4 Reporting Attachment B: New section of additional requirements such as work plan, financial reports, and financial audits. 5. Tukwila Policies and Procedures Requested by TPMPD See City Attorney Memo — Attachment B: 6. TPMPD Policies and Procedures Requested by TPMPD See City Attorney Memo — Attachment B: The City has concerns with not being able to weigh in on policies that may affect pool operations. 7. Dispute Resolution Requested by TPMPD See City Attorney Memo — Attachment B: The City Attorney believes it is best if the parties work through mediation and not incur the additional legal costs of arbitration. 8.1 to Additional General Requested by TPMPD No concerns 8.4 Provisions W:12014 Info Memos - Council \MPD ILA 6- 5- 14.doc INFORMATIONAL MEMO Page 3 FINANCIAL IMPACT Unknown RECOMMENDATION A copy of the current ILA is attached for your review. The Community Affairs and Parks Committee members can discuss any recommended amendments to the ILA and then forward to the Committee of the Whole and Regular Meeting for action. ATTACHMENTS • Attachment A: 2014 -2015 Interlocal Agreement for Pool Operations and Support Services between the City of Tukwila and the Tukwila Pool Metropolitan Park District (ILA). • Attachment B is a City Attorney memo to the TPMPD attorney regarding the last proposed changes with an attached revised ILA • Attachment C is the final proposed ILA with all changes shown from the original. W:12014 Info Memos - Council \MPD ILA 6- 5- 14.doc 9 1 ATTACHMENT A 13 -204 Council Approval 12/9/13 INTERLOCAL AGREEMENT FOR SUPPORT SERVICES BETWEEN THE CITY OF TUKWILA AND THE TUKWILA POOL METROPOLITAN PARK DISTRICT In accordance with the Interlocal Cooperation Act (RCW 39.34), the City of Tukwila ( "Tukwila ") and the Tukwila Pool Metropolitan Park District ( "TPMPD "), both of whom are Washington municipal corporations, hereby enter into the following agreement: I. RECITALS Tukwila and TPMPD, through their respective legislative bodies, have declared their intent to create a relationship whereby TPMPD contracts for support services from Tukwila; and Tukwila and TPMPD recognize that the cost savings from shared support services greatly outweighs the increased facility and administrative expenses in creating and maintaining separate facilities and accounting practices associated with the operation of the City of Tukwila Pool and related services; Now, Therefore, Tukwila agrees to provide, and TPMPD agrees to pay for, support services to facilitate the operation of TPMPD and the City of Tukwila Pool: I1. AGREEMENT 1. Term of Agreement and Renewal. 1.1 Term. This Agreement shall be valid from the Effective Date set forth in Section 4.1 of this Agreement until January 1, 2016. 1.2 Renewal. This Agreement may be renewed only by written agreement of both Parties. 2. Scope of Work. 2.1 Pool Operations Scope of Work. Duties shall be performed by the incumbent identified by job title(s), however the City Administrator may delegate responsibilities based on staff availability and organization needs. Tukwila shall perform the duties described in "Exhibit 1" for the TPMPD. 2.2 Pool Staff and Management. The cost of pool staff and management salaries and benefits are not included in this agreement. The cost of pool staff and management salaries and benefits shall be billed separately to the TPMPD. The positions of Aquatics Program Coordinator, Aquatics Program Specialist, and Extra Labor comprise pool staff and management. 2.3 Support Services Scope of Work. Duties shall be performed primarily by the incumbent identified by job title, however, the City Administrator may delegate ILA — City & MPD Pool Operations and Support Services ILA - CITY MPD Pool Operations and Suppod Services Attachment A (Scope) FINAL 12 11.2013 rs (FINAL for signature approved 12.10 -13) [ -1 -] 157‘ ,,.y-o-r t &- 11 responsibilities based on staff availability and organizational needs. Tukwila shall perform duties described in "Exhibit 2" as needed and requested by the Board President or his or her designee. 2.4 Support Services Cost Basis. TPMPD shall pay Tukwila for providing support services based on the hourly wages and benefits of City staff and their time spent providing support services, plus 10% for overhead expenses. Support Services will cost approximately $6,600 per month; however nothing in this agreement limits Tukwila's ability to invoice more than $6,600 per month. 2.5 Monthly Invoice. Tukwila shall provide to TPMPD a monthly invoice for support services provided to TPMPD outlining the nature of the services provided, the hours of service provided, the hourly rate applicable to such services and the expenses incurred no later than 15 business days after the end of each month. Payment shall be due from TPMPD 30 days from the date of invoice and made payable to the City of Tukwila. 2.6 Employees. All City employees who provide the TPMPD the services called for in this Agreement shall be employees of the City, and not employees of the TPMPD. Except as provided in this Agreement, the employees of the City who are performing the services called for in this Agreement shall not be entitled to any benefit from the TPMPD. The City shall, at all times, be solely responsible for the conduct of its employees in performing the services called for in this Agreement. The City shall be solely responsible for all compensation, benefits and insurance for its employees. The TPMPD agrees to adopt and enforce the City's policies and procedures related to employee safety, pool behavior and workplace harassment. 2.7 Records. All records relating to the provision of the services called for in this Agreement shall be considered records of the TPMPD, and shall be retained in accordance with the records retention requirements of the TPMPD; provided, the City may retain copies of any records that it must retain to comply with its own retention requirements or other applicable laws. 3. Indemnification and Hold Harmless. Each party agrees to defend, indemnify, and hold harmless the other party and each of its employees, officials, agents, and volunteers from any and all losses, claims, liabilities, lawsuits, or legal judgments arising out of any negligent or willfully tortious actions or inactions by the performing party or any of its employees, officials, agents, or volunteers, while acting within the scope of the duties required by this Agreement. Each party shall be responsible for its own legal costs and attorneys' fees. This provision shall survive the expiration of this Agreement. This provision shall also survive and remain in effect in the event that a court or other entity with jurisdiction determines that this Agreement is not enforceable. It is further specifically and expressly understood that the indemnification provided herein constitutes each party's waiver of immunity under industrial insurance, Title 51 RCW, solely to carry out the purposes of this indemnification clause. The parties further acknowledge that they have mutually negotiated this waiver. ILA — City & MPD Pool Operations and Support Services ILA • CITY MPD Pod Operations and Support Services Attachment A (Scope) FINAL 12.11.2013 is (FINAL for signature approved 12.10.13) 12 [ -2 -] 3.1 Insurance. Each party shall carry and maintain, for the duration of this Agreement property and liability insurance coverage for all operations, facilities, equipment, and personnel, including liability, at not less than the amount and coverage's as existing on the date of this Agreement in a form and with a company acceptable to the other party. 4. General Provisions. 4.1 Effective Date. This Agreement shall be effective upon ratification by each Party's governing body and execution by TPMPD's Board President and the Mayor of Tukwila. 4.2 Amendment. This Agreement may be amended only upon the consent of both Parties. Any amendments shall be in writing and shall be ratified and executed by the Parties in the same manner in which this Agreement was originally adopted. 4.3 Waiver. The waiver by any party of any breach of any term, covenant, or condition of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same term, covenant, or condition of this Agreement. 4.4 Severability. If any provision of this Agreement shall be held invalid, the remainder of the Agreement shall not be affected thereby. 4.5 Entire Agreement. This Agreement represents the entire understanding of the Parties and supersedes any oral representations that are inconsistent with or modify its terms and conditions. 4.6 Counterparts. This Agreement shall be effective whether signed by all Parties on the same document or signed in counterparts. 4.7 Notices. Any notice to be provided under the terms of this Agreement, shall be delivered by certified mail, return receipt requested, or by personal service to the following: For Tukwila: For TPMPD: City Clerk President City of Tukwila TPMPD 6200 Southcenter Blvd. 6200 Southcenter Blvd. Tukwila, WA 98188 Tukwila, WA 98188 ILA — City & MPD Pool Operations and Support Services ILA - CITY MPD Pod Operations and Support Services Attachment A (Scope) FINAL 12.112013 rs (FINAL for signature approved 12.10.13) [ -3 -] 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed. CITY OF TUKWILA By Jim gerton, Dat Attest: TUKWILA POOL METROPOLITAN PARK D STRICT By: Title: Board President Dated: Attest: Christy 0 " aherty, City Clerk Title: erk of the Board Approved as to Form: Approved as to Form: -(-0 Shelley M. Kerslake, City Attorney Brian Snure, Attorney for TPMPD Attachment: Exhibit 1: Pool Operations Scope of Work Exhibit 2: Support Service Scope of Work ILA — City & MPD Pool Operations and Support Services ILA - CITY MPD Pool Operations and Support Services Attachment A (Scope) FINAL 12.11.2013 rs (FINAL for signature approved 12.10.13) 14 1 -4 -j ATTACHMENT B TO: Brian Snure, Attorney for the Tukwila Pool Metropolitan Park District FROM: Rachel Turpin, Attorney for the City of Tukwila DATE: May 28, 2014 RE: Interlocal Agreement for Support Services Between Tukwila and TPMD Michael R. Kenyon Bruce L. Disend Shelley M. Kerslake Kari L. Sand Chris D. Bacha Rachel B.Turpin Ann Marie J. Soto John P. Long, Jr. Danielle M. Evans Kim Adams Piatc As you know, the City of Tukwila (City) and the Tukwila Pool Metropolitan Park District (TPMPD) entered into the current Interlocal Agreement for Support Services ( "ILA ") in December, 2013. On March 17, 2014, the City received the TPMPD's proposed changes to the ILA. At that time, the TPMPD Board of Commissioners had not yet weighed in on the changes. On March 18, 2014, on behalf of the City administration, I provided comments to the changes. On April 30, 2014, you provided me with a revised version of the ILA, which only resolved a few of the City's issues. I have had a chance to review the latest version with the City administration, and there are still a number of changes to the current agreement that trouble the City. I have addressed those issues section by section below. Please note that the City Council has not yet had an opportunity to weigh in on the proposed revisions to the ILA. The City administration would like to take this to a Community Affairs and Parks (CAP) committee meeting in June so that our City Council Members can weigh in on behalf of the City, as well. Please feel free to contact me with any questions. I look forward to working with you to resolve these issues and to negotiate an agreement that both parties are satisfied with. Section 2.4, Support Services The language added to this Section by the City is language that is included in the current agreement. It is simply to clarify the fact that invoices could potentially exceed $6,600. Kenyon Disend, PLLC I The Municipal Law Firm I I Front Street South I Issaquah,WA 98027 -3820 Tel: (425) 392 -7090 I Fax: (425) 392 -7071 www.kenyondisend.com 15 Section 2.5, Cost Controls Unfortunately, there could be circumstances under which the City would not be able to provide advance written notice that the annual maximum was going to be exceeded, and the City would still need to recover costs for whatever service it had provided. For example, April, 2014 expenses were higher than $6,600 due to a large public records request. Since there was no way the City could determine the cost of processing this request up front, it would have been unable to get advance written approval for that expenditure. If this were to happen toward the end of the year, it could make the City exceed the annual maximum; however, the City would not know until the services had already been rendered. While the City will not agree to set an annual maximum, it understands the TPMPD's desire to control costs. As such, the City is suggesting language requiring the City to notify the TPMPD when costs hit $60,000, so that the parties can then work together to find ways to cut costs moving forward. Section 4.1, Annual Operations Plan ( "Work Plan ") The current ILA does not have a requirement for a Work Plan. The City is not necessarily opposed to creating a Work Plan, but further clarification is needed about what is being requested and why. The City would like to see Sections 4.1.3 and 4.1.4 either removed or clarified so that the City understands what is expected of it. Additionally, it is important to note that preparing a Work Plan will add to the TPMPD's costs. Section 4.3, Other Reporting The City has changed "monthly" reporting to "quarterly." Monthly Work Plan reports will be a lot of added work for the City, which will in turn drive up costs for TPMPD. Quarterly reporting seems more appropriate. Section 6, TPMPD Policies and Procedures The City has added language requiring TPMPD to get prior approval from the City before adopting policies that affect operations. Since the City is the pool operator, it is essential that the City have input on any policy that affects operations. Section 7.3, Arbitration While the City is not opposed to alternative dispute resolution, and would be happy to agree upfront to mediate a dispute prior to litigation, it is opposed to agreeing up front to arbitration. If a dispute arises that is subject to mandatory arbitration, the City will, of course, arbitrate. However, many civil actions are not subject to mandatory arbitration and there may be cases where the City may feel arbitration is not appropriate. This is not unique to this agreement —the City always attempts to remove mandatory arbitration clauses from contracts. -2- 16 INTERLOCAL AGREEMENT FOR SUPPORT SERVICES BETWEEN THE CITY OF TUKWILA AND THE TUKWILA POOL METROPOLITAN PARK DISTRICT In accordance with the Interlocal Cooperation Act (RCW 39.34), the City of Tukwila ( "Tukwila ") and the Tukwila Pool Metropolitan Park District ( "TPMPD "), both of whom are Washington municipal corporations, hereby enter into the following agreement: I. RECITALS Tukwila and TPMPD, through their respective legislative bodies, have declared their intent to create a relationship whereby TPMPD contracts for support services from Tukwila; and Tukwila and TPMPD recognize that the cost savings from shared support services greatly outweighs the increased facility and administrative expenses in creating and maintaining separate facilities and accounting practices associated with the operation of the City of Tukwila Pool and related services; Now, Therefore, Tukwila agrees to provide, and TPMPD agrees to pay for, support services to facilitate the operation of TPMPD and the City of Tukwila Pool: II. AGREEMENT 1. Term of Agreement, Termination and Renewal. rr 1.1 Term. This Agreement shall be valid from the Effective Date set forth in Section 4.1 of this Agreement until December 31, 2015 unless terminated by consent of the parties or by one of the termination methods set forth below, etc. 1.1.1 Termination for non - payment. If the TPMPD has not made a monthly payment within ten (10) days after its due date of net 30, Tukwila shall send, by registered mail and email, written notice to the TPMPD that such payment is overdue. If payment is not made within five (5) business days after said notice has been received, Tukwila may terminate this Agreement by providing written notice to the TPMPD, it being understood that nothing in this shall limit or impair Tukwila's right to any remedy otherwise available under applicable law. 1.1.2 Termination for failure to carry insurance. Either party may terminate this Agreement immediately in the event the other party fails to maintain the insurance coverage required under Section 3.1. 1.1.3 Termination Without Cause. Either party may terminate this agreement at any time with one hundred twenty (120) days written notice to the other Party. 17 1.2 Renewal. This Agreement may be renewed only by written agreement of both Parties. 2. Scope of Work. 2.1 Pool Operations Scope of Work. Duties shall be performed by the incumbent identified by job title(s), however the City Administrator may delegate responsibilities based on staff availability and organization needs. Tukwila shall perform the duties described in "Exhibit 1" for the TPMPD. 2.2 Pool Staff and Management. The cost of pool staff and management salaries and benefits are not included in this agreement. The cost of pool staff and management salaries and benefits shall be billed separately to the TPMPD. The positions of Aquatics Program Coordinator, Aquatics Program Specialist, and Extra Labor comprise pool staff and management. 2.3 Support Services Scope of Work. Duties shall be performed primarily by the incumbent identified by job title, however, the City Administrator may delegate responsibilities based on staff availability and organizational needs. Tukwila shall perform duties described in "Exhibit 2" as needed and requested by the Board President or his or her designee. 2.4 Support Services Cost Basis. TPMPD shall pay Tukwila for providing support services based on the hourly wages and benefits of City staff and their time spent providing support services, plus 10% for overhead expenses. Support Services are estimated to cost approximately $6,600 per month; however, nothing in this agreement limits Tukwila's ability to invoice more than $6,600 per month. 2.5 Cost Controls. Tukwila is authorized to invoice on a cost for service basis-up-to the annual maximum amount f $80,000. Once costs Costs for support services exceeding that annual maximum shall require specific advance written approval from the Board .have reached $60,000, Tukwila shall notify the TPMPD as soon as it determines that the annual maximum amount may be exceeded and the parties shall provide TPMPD with variouswork together to find options for reducing the costs. TPMPD will actively seek and implement cost saving measures to assist in maintaining costs below the annual maximum. 2.6 Monthly Invoice. Tukwila shall provide to TPMPD a monthly invoice for support services provided to TPMPD outlining the nature of the services provided, the hours of service provided, the hourly rate applicable to such services and the expenses incurred no later than 15 business days after the end of each month. Payment shall be due from TPMPD 30 days from the date of invoice and made payable to the City of Tukwila. 2.7 Employees. All City employees who provide the TPMPD the services called for in this Agreement shall be employees of the City, and not employees of the 18 TPMPD. Except as provided in this Agreement, the employees of the City who are performing the services called for in this Agreement shall not be entitled to any benefit from the TPMPD. The City shall, at all times, be solely responsible for the conduct of its employees in performing the services called for in this Agreement. The City shall be solely responsible for all compensation, benefits and insurance for its employees. The TPMPD agrees to adopt and follow the City's personnel policies and procedures related to employee safety, pool behavior and workplace harassment. 2.8 Records. All records relating to the provision of the services called for in this Agreement shall be considered records of the TPMPD, and shall be retained in accordance with the records retention requirements of the TPMPD; provided, the City may retain copies of any records that it must retain to comply with its own retention requirements or other applicable laws. 3. Indemnification and Hold Harmless. Each party agrees to defend, indemnify, and hold harmless the other party and each of its employees, officials, agents, and volunteers from any and all losses, claims, liabilities, lawsuits, or legal judgments arising out of any negligent or willfully tortious actions or inactions by the performing party or any of its employees, officials, agents, or volunteers, while acting within the scope of the duties required by this Agreement. Each party shall be responsible for its own legal costs and attorneys' fees. This provision shall survive the expiration of this Agreement. This provision shall also survive and remain in effect in the event that a court or other entity with jurisdiction determines that this Agreement is not enforceable. It is further specifically and expressly understood that the indemnification provided herein constitutes each party's waiver of immunity under industrial insurance, Title 51 RCW, solely to carry out the purposes of this indemnification clause. The parties further acknowledge that they have mutually negotiated this waiver. 3.1 Insurance. Each party shall carry and maintain, for the duration of this Agreement property and liability insurance coverage for all operations, facilities, equipment, and personnel, including liability, at not less than the y %- amount and coverage's as existing on the date of this Agreement in a form and with a company acceptable to the other party. 4. Accountability and Reporting. 4.1 Annual Operations Plan, (also known as the "Work Plan"). Tukwila, working in conjunction with the Executive Director, shall provide the TPMPD with an Annual Operations Plan for the coming year on or before November 15th of each year. The Work Plan shall be subject to the approval of the TPMPD, within 45 days of submittal, which approval shall not be unreasonably withheld. If the TPMPD does not approve the Work Plan, it shall specify in detail a reasonable basis for its disapproval. If the TPMPD fails to provide its approval or a reasonable basis for disapproval within the foregoing 45 -day period, the Work Plan as submitted by Tukwila shall be deemed approved. In the event of dispute or disagreement regarding the adoption of or compliance with the Work 19 Plan, the parties shall resolve such dispute pursuant to the Dispute Resolution provisions in Paragraph 6. The Work Plan shall include, at a minimum, the following elements: 4.1.1 Proposed pool hours, programs, partnerships, and user fees. 4.1.2 Proposed routine maintenance plan and identification of non - routine maintenance for the year. 4.1.3 Proposed usage and customer satisfaction goals, and a system for collecting and measuring data and progress toward said goals. 4 .1.1 Benchmarks for staff development and other efforts that contribute to overall swimmer safety and customer satisfaction. 41. 54.1.3 Proposed annual operating budget including all operational expenses and expected revenue (not to include capital expenses or TPMPD administrative costs). 4.2 Financial Reporting. Tukwila shall provide monthly fmancial reports to the TPMPD. The monthly reports shall provide all income and expenses, including staffing and support services, separating operational expenses from capital expenses and TPMPD administrative costs. The reporting shall be submitted to the TPMPD Board in time to be included in the distribution for the monthly public meeting. 4.3 Other Reporting. Tukwila shall provide the TPMPD with Mentkly- uarterly reports including, but not limited to, progress toward goals outlined in the Work Plan. These reports are due to the Executive Director one week (seven days) prior to the monthly TPMPD Board of Commissioner's meetings. 4 Performance Audits. The TPMPD may conduct Performance Audits at such time as TPMPD determines a Performance Audit is necessary. Performance Audits will include, but are not limited to, review of Tukwila's performance against Work Plan benchmarks, budget, timelines of current and future projects and other deliverables as presented to the Executive Director and outlined in the annual Work Plan. 5. Tukwila Policies and Procedures. The TPMPD agrees to adopt and follow all Tukwila policies and procedures relating to the operation of the pool existing on the date of this Agreement. Tukwila reserves the right to modify, remove or add policies and procedures relating to the operation of the pool, provided however, if such policies and procedures affect the TPMPD's costs under this Agreement, such modified, removed or additional policies shall be subject to the prior approval of the TPMPD, such approval by the TPMPD not being unreasonably withheld. 6. TPMPD Policies and Procedures. The TPMPD reserves the right to adopt TPMPD policies and procedures that govern pool policy and operations. If such policies or 20 procedures affect the wages or working conditions of Tukwila employees or pool operations, such policies and procedures shall be subject to prior approval by Tukwila, such approval not being unreasonably withheld. TPMPD policies may not relax requirements below current local, state or federal standards. TPMPD policies shall supersede all previous policies once adopted. 7. Dispute Resolution. 7.1 Negotiation. In the event a dispute arises under this Agreement the parties agree to engage in a process of negotiation to resolve such dispute. 7.2 Mediation. If the parties are unable to resolve a dispute regarding this Agreement through negotiation, either party may demand mediation through a process to be mutually agreed to in good faith between the parties within 30 days. The parties shall share equally the costs of mediation and each party shall be responsible for their own costs in preparation and participation in the mediation, including expert witness fees and reasonable attorney's fees. to arbitration according to the procedures of the Superior Court Rules for Mandatory Arbitration, including the Local Mandatory Arbitration Rules of the King County Superior Court, King County, Washington, as amended, unless the parties agree in writing to an alternative dispute resolution process. The arbitration shall be before a disinterested arbitrator selected pursuant both parties sharing equally in the cost of the arbitrator. The location of the arbitration shall be mutually agreed or established by the assigned Arbitrator, and the laws of Washington will govern its proceedings. Each party shall be responsible for its own costs in preparing for and participating in the arbitration, including expert witness fees and reasonable attorney's fees. shall have 30 calendar days from the date of the ruling /award to file and serve a demand for a bench trial de novo in the King County Superior Court. The court shall determine all questions of law and fact without empanelling a jury for any purpose. If the party demanding the trial de novo does not improve its position from the arbitrator's ruling /award following a final judgment, that party shall pay all costs, expenses and attorney fccs to the other party, including all costs, attorney fees and expenses associated with any appeals. 7.5 Exclusive Process. Unless otherwise agreed in writing, this dispute resolution process shall be the sole, exclusive and final remedy to or for either party for any dispute regarding this Agreement, and its interpretation, application or breach, regardless of whether the dispute is based in contract, tort, any violation of federal law, state statute or local ordinance or for any breach of administrative rule or regulation and regardless of the amount or type of relief demanded. 21 8. General Provisions. 8.1 No Separate Entity Created. This Agreement does not establish a separate legal entity, joint board, or administrative section for the purpose of acquiring, managing, or disposing of property, or any other financial obligation allowed under the Interlocal Cooperation Act. 8.2 Administration. Unless the Parties otherwise agree, there shall be no lead agency responsible for the administration of this Agreement. This Agreement shall be administered jointly by the chief officers of the respective Parties. 8.3 Property Ownership. This Agreement does not provide for jointly owned property. All property presently owned or hereafter acquired by using TPMPD funds shall remain the property of the TPMPD and all property presently owned or hereafter acquired using City funds in performing services under this Agreement shall remain the property of the City in the event of the termination of this agreement. 8.4 Benefits. This agreement is entered into for the benefit of the parties to this agreement only and shall confer no benefits, direct or implied, on any third persons. 8.5 Effective Date. This Agreement shall be effective upon ratification by each Party's governing body and execution by TPMPD's Board President and the Mayor of Tukwila. 8.6 Amendment. This Agreement may be amended only upon the consent of both Parties. Any amendments shall be in writing and shall be ratified and executed by the Parties in the same manner in which this Agreement was originally - adopted. 8,7 Waiver. The waiver by any party of any breach of any term, covenant, or 'y;a^ -- condition of this Agreement shall not be deemed to be a waiver of any ubsequent breach of the same term, covenant, or condition of this Agreement. 8.8 Severability. If any provision of this Agreement shall be held invalid, the remainder of the Agreement shall not be affected thereby. 8.9 Entire Agreement. This Agreement represents the entire understanding of the Parties and supersedes any oral representations that are inconsistent with or modify its terms and conditions. 8.10 Counterparts. This Agreement shall be effective whether signed by all Parties on the same document or signed in counterparts. 8.11 Notices. Any notice to be provided under the terms of this Agreement, shall be delivered by certified mail, return receipt requested, or by personal service to the following: 22 For Tukwila: City Clerk City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 • • VA For TPMPD: President TPMPD 6200 Southcenter Blvd. Tukwila, WA 98188 ti 23 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed. CITY OF TUKWILA TUKWILA POOL METROPOLITAN PARK DISTRICT By: By: Jim Haggerton, Mayor Title: Board President Dated: Dated: Attest: Attest: Christy O'Flaherty, City Clerk Approved as to Form: Title: Clerk of the Board Approved as to Form: Shelley M. Kerslake, City Attorney Brian Snure, Attorney for TPMPD 24 ATTACHMENT C INTERLOCAL AGREEMENT FOR SUPPORT SERVICES BETWEEN THE CITY OF TUKWILA AND THE TUKWILA POOL METROPOLITAN PARK DISTRICT In accordance with the Interlocal Cooperation Act (RCW 39.34), the City of Tukwila ( "Tukwila ") and the Tukwila Pool Metropolitan Park District ( "TPMPD "), both of whom are Washington municipal corporations, hereby enter into the following agreement: I. RECITALS Tukwila and TPMPD, through their respective legislative bodies, have declared their intent to create a relationship whereby TPMPD contracts for support services from Tukwila; and Tukwila and TPMPD recognize that the cost savings from shared support services greatly outweighs the increased facility and administrative expenses in creating and maintaining separate facilities and accounting practices associated with the operation of the City of Tukwila Pool and related services; Now, Therefore, Tukwila agrees to provide, and TPMPD agrees to pay for, support services to facilitate the operation of TPMPD and the City of Tukwila Pool: II. AGREEMENT 1. Term of Agreement, Termination and Renewal. 1.1 Term. This Agreement shall be valid from the Effective Date set forth in Section 4.1 of this Agreement until January 1, 2016 December 31, 2015 unless terminated by consent of the parties or by one of the termination methods set forth below, etc. 1.1.1 Termination for non - payment. If the TPMPD has not made a monthly payment within ten (10) days after its due date of net 30, Tukwila shall send, by registered mail and email, written notice to the TPMPD that such payment is overdue. If payment is not made within five (5) business days after said notice has been received, Tukwila may terminate this Agreement by providing written notice to the TPMPD, it being understood that nothing in this shall limit or impair Tukwila's right to any remedy otherwise available under applicable law. 1.1.2 Termination for failure to carry insurance. Either party may terminate this Agreement immediately in the event the other party fails to maintain the insurance coverage required under Section 3.1. 1.1.3 Termination Without Cause. Either party may terminate this agreement at any time with one hundred twenty (120) days written notice to the other Party. 25 1.2 Renewal. This Agreement may be renewed only by written agreement of both Parties. 2. Scope of Work. 2.1 Pool Operations Scope of Work. Duties shall be performed by the incumbent identified by job title(s), however the City Administrator may delegate responsibilities based on staff availability and organization needs. Tukwila shall perform the duties described in "Exhibit 1" for the TPMPD. 2.2 Pool Staff and Management. The cost of pool staff and management salaries and benefits are not included in this agreement. The cost of pool staff and management salaries and benefits shall be billed separately to the TPMPD. The positions of Aquatics Program Coordinator, Aquatics Program Specialist, and Extra Labor comprise pool staff and management. 2.3 Support Services Scope of Work. Duties shall be performed primarily by the incumbent identified by job title, however, the City Administrator may delegate responsibilities based on staff availability and organizational needs. Tukwila shall perform duties described in "Exhibit 2" as needed and requested by the Board President or his or her designee. 2.4 Support Services Cost Basis. TPMPD shall pay Tukwila for providing support services based on the hourly wages and benefits of City staff and their time spent providing support services, plus 10% for overhead expenses. Support Services ware estimated to cost approximately $6,600 per month; however, nothing in this agreement limits Tukwila's ability to invoice more than $6,600 per month. 2.5 Cost Controls. Tukwila is authorized to invoice on a cost for service basis. Once costs for support services have reached $60,000, Tukwila shall notify the TPMPD and the parties shall work together to find options for reducing the costs. TPMPD will actively seek and implement cost saving measures to assist in maintaining costs below the annual maximum. 2.6 Monthly Invoice. Tukwila shall provide to TPMPD a monthly invoice for support services provided to TPMPD outlining the nature of the services provided, the hours of service provided, the hourly rate applicable to such services and the expenses incurred no later than 15 business days after the end of each month. Payment shall be due from TPMPD 30 days from the date of invoice and made payable to the City of Tukwila. 2.62.7 Employees. All City employees who provide the TPMPD the services called for in this Agreement shall be employees of the City, and not employees of the TPMPD. Except as provided in this Agreement, the employees of the City who are performing the services called for in this Agreement shall not be entitled to any benefit from the TPMPD. The City shall, at all times, be solely 26 responsible for the conduct of its employees in performing the services called for in this Agreement. The City shall be solely responsible for all compensation, benefits and insurance for its employees. The TPMPD agrees to adopt and cnforcefollow the City's personnel policies and procedures related to employee safety, pool behavior and workplace harassment. 2.72.8 Records. All records relating to the provision of the services called for in this Agreement shall be considered records of the TPMPD, and shall be retained in accordance with the records retention requirements of the TPMPD; provided, the City may retain copies of any records that it must retain to comply with its own retention requirements or other applicable laws. 3. Indemnification and Hold Harmless. Each party agrees to defend, indemnify, and hold harmless the other party and each of its employees, officials, agents, and volunteers from any and all losses, claims, liabilities, lawsuits, or legal judgments arising out of any negligent or willfully tortious actions or inactions by the performing party or any of its employees, officials, agents, or volunteers, while acting within the scope of the duties required by this Agreement. Each party shall be responsible for its own legal costs and attorneys' fees. This provision shall survive the expiration of this Agreement. This provision shall also survive and remain in effect in the event that a court or other entity with jurisdiction determines that this Agreement is not enforceable. It is further specifically and expressly understood that the indemnification provided herein constitutes each party's waiver of immunity under industrial insurance, Title 51 RCW, solely to carry out the purposes of this indemnification clause. The parties further acknowledge that they have mutually negotiated this waiver. 3.1 Insurance. Each party shall carry and maintain, for the duration of this Agreement property and liability insurance coverage for all operations, facilities, equipment, and personnel, including liability, at not less than the amount and coverage's as existing on the date of this Agreement in a form and with a company acceptable to the other party. 4. Accountability and Reporting. 4.1 Annual Operations Plan, (also known as the "Work Plan"). Tukwila, working in conjunction with the Executive Director, shall provide the TPMPD with an Annual Operations Plan for the coming year on or before November 15th of each year. The Work Plan shall be subject to the approval of the TPMPD, within 45 days of submittal, which approval shall not be unreasonably withheld. If the TPMPD does not approve the Work Plan, it shall specify in detail a reasonable basis for its disapproval. If the TPMPD fails to provide its approval or a reasonable basis for disapproval within the foregoing 45 -day period, the Work Plan as submitted by Tukwila shall be deemed approved. In the event of dispute or disagreement regarding the adoption of or compliance with the Work Plan, the parties shall resolve such dispute pursuant to the Dispute Resolution provisions in Paragraph 6. The Work Plan shall include, at a minimum, the following elements: 27 4.1.1 Proposed pool hours, programs, partnerships, and user fees. 4.1.2 Proposed routine maintenance plan and identification of non - routine maintenance for the year. 4.1.3 Proposed annual operating budget including all operational expenses and expected revenue (not to include capital expenses or TPMPD administrative costs). 4.2 Financial Reporting. Tukwila shall provide monthly financial reports to the TPMPD. The monthly reports shall provide all income and expenses, including staffing and support services, separating operational expenses from capital expenses and TPMPD administrative costs. The reporting shall be submitted to the TPMPD Board in time to be included in the distribution for the monthly public meeting. 4.3 Other Reporting. Tukwila shall provide the TPMPD with quarterly reports including, but not limited to, progress toward goals outlined in the Work Plan. These reports are due to the Executive Director one week (seven days) prior to the monthly TPMPD Board of Commissioner's meetings. 4.4 Performance Audits. The TPMPD may conduct Performance Audits at such time as TPMPD determines a Performance Audit is necessary. Performance Audits will include, but are not limited to, review of Tukwila's performance against Work Plan benchmarks, budget, timelines of current and future projects and other deliverables as presented to the Executive Director and outlined in the annual Work Plan. 5. Tukwila Policies and Procedures. The TPMPD agrees to adopt and follow all Tukwila policies and procedures relating to the operation of the pool existing on the date of this Agreement. Tukwila reserves the right to modify, remove or add policies and procedures relating to the operation of the pool_, provided however, if such policies and procedures affect the TPMPD's costs under this Agreement, such modified, removed or additional policies shall be subject to the prior approval of the TPMPD, such approval by the TPMPD not being unreasonably withheld. 6. TPMPD Policies and Procedures. The TPMPD reserves the right to adopt TPMPD policies and procedures that govern pool policy and operations. If such policies or procedures affect the wages or working conditions of Tukwila employees or pool operations, such policies and procedures shall be subject to prior approval by Tukwila, such approval not being unreasonably withheld. TPMPD policies may not relax requirements below current local, state or federal standards. TPMPD policies shall supersede all previous policies once adopted. 7. Dispute Resolution. 7.1 Negotiation. In the event a dispute arises under this Agreement the parties agree to engage in a process of negotiation to resolve such dispute. 28 7.2 Mediation. If the parties are unable to resolve a dispute regarding this Agreement through negotiation, either party may demand mediation through a process to be mutually agreed to in good faith between the parties within 30 days. The parties shall share equally the costs of mediation and each party shall be responsible for their own costs in preparation and participation in the mediation, including expert witness fees and reasonable attorney's fees. 48.General Provisions. 8.1 No Separate Entity Created. This Agreement does not establish a separate legal entity, joint board, or administrative section for the purpose of acquiring, managing, or disposing of property, or any other financial obligation allowed under the Interlocal Cooperation Act. 8.2 Administration. Unless the Parties otherwise agree, there shall be no lead agency responsible for the administration of this Agreement. This Agreement shall be administered jointly by the chief officers of the respective Parties. 8.3 Property Ownership. This Agreement does not provide for jointly owned property. All property presently owned or hereafter acquired by using TPMPD funds shall remain the property of the TPMPD and all property presently owned or hereafter acquired using City funds in performing services under this Agreement shall remain the property of the City in the event of the termination of this agreement. 8.4 Benefits. This agreement is entered into for the benefit of the parties to this agreement only and shall confer no benefits, direct or implied, on any third persons. /1.18.5 Effective Date. This Agreement shall be effective upon ratification by each Party's governing body and execution by TPMPD's Board President and the Mayor of Tukwila. '1.28.6 Amendment. This Agreement may be amended only upon the consent of both Parties. Any amendments shall be in writing and shall be ratified and executed by the Parties in the same manner in which this Agreement was originally adopted. 48.7 Waiver. The waiver by any party of any breach of any term, covenant, or condition of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same term, covenant, or condition of this Agreement. 448.8 Severability. If any provision of this Agreement shall be held invalid, the remainder of the Agreement shall not be affected thereby. 29 458.9 Entire Agreement. This Agreement represents the entire understanding of the Parties and supersedes any oral representations that are inconsistent with or modify its terms and conditions. 4768.10 Counterparts. This Agreement shall be effective whether signed by all Parties on the same document or signed in counterparts. 4.78.11 Notices. Any notice to be provided under the terms of this Agreement, shall be delivered by certified mail, return receipt requested, or by personal service to the following: For Tukwila: For TPMPD: City Clerk City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 30 President TPMPD 6200 Southcenter Blvd. Tukwila, WA 98188 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed. CITY OF TUKWILA TUKWILA POOL METROPOLITAN PARK DISTRICT By: By: Jim Haggerton, Mayor Title: Board President Dated: Dated: Attest: Attest: Christy O'Flaherty, City Clerk Title: Clerk of the Board Approved as to Form: Approved as to Form: Shelley M. Kerslake, City Attorney Brian Snure, Attorney for TPMPD 31