Loading...
HomeMy WebLinkAboutResolution 2021-136 Approving and authorizing the Mayor to execute an Agreement between the Town of Marana and On Your Left Consulting, LLCMARANA RESOLUTION NO. 2021-136 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE TOWN OF MARANA AND ON YOUR LEFT CONSULTING, LLC TO PROVIDE RACE SERVICES FOR THE MARANA PARKS AND RECREATION #RUNMARANA SERIES 2021-2022 EVENTS WHEREAS in January 2015, the Town Council of the Town of Marana adopted the Town of Marana Strategic Plan III which identifies Recreation as one of its five focus areas and includes the Principle Statement that "We will promote a healthy and active lifestyle through Town programs and community partnerships" and an initiative to seek partner- ships with public and private entities to provide programs and enhanced services; and WHEREAS On Your Left Consulting, LLC (OYL) provides race management, tim- ing and results services for endurance race events; and WHEREAS the Town and OYL desire to enter into an agreement for OYL to pro- vide race services prior to race day and on race day for the Marana Parks and Recreation #RunMarana Series 2021-2022 events; and WHEREAS the Town Council finds that approval of an agreement with OYL to provide race management, timing, and results services for endurance race events in the Town as set forth in this resolution is in the best interests of the Town of Marana and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The agreement between the Town of Marana and On Your Left Con- sulting, LLC regarding race management, timing, and results services for endurance race events in the Town, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives of this resolution. Marana Resolution No. 2021-136 - I - PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 5th day of October 2021. ATT s - Cherry L. wson, Town Clerk Mayor Ed Honea APPROVED AS TO FORM: J airall, Town Attorney Marana Resolution No. 2021-136 - 2 - EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 AGREEMENT BETWEEN THE TOWN OF MARANA AND ON YOUR LEFT CONSULTING, LLC THIS AGREEMENT (the "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and ON YOUR LEFT CONSULT- ING, LLC, an Arizona limited liability company, d/b/a On Your Left Fitness and Timing ("OYL"). The Town and OYL are sometimes collectively referred to in this Agreement as the "Parties," each of which is sometimes individually referred to as a "Party." RECITALS A. In January 2015, the Town Council of the Town of Marana adopted the Town of Marana Strategic Plan III (the "Plan"). The Plan identifies Recreation as one of its five focus areas. Under the Recreation focus area, the Plan includes the Principle Statement that "We will promote a healthy and active lifestyle through Town programs and com- munity partnerships" and an initiative to seek partnerships with public and private entities to provide programs and enhanced services. B. OYL hosts, times, and provides event management services for endurance race events at locations around Arizona. C. The Town and OYL desire to enter into an agreement for OYL to provide services prior to race day and on race day for the Marana Parks and Recreation #RunMarana Series 2021-2022 with support and assistance from the Town as described in this Agreement. AGREEMENT NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the intent of the Parties in entering into this Agreement, and in consideration of the terms of this Agreement, the Parties hereby agree as follows: 1. Services to be performed by OYL. OYL shall provide services prior to race day and on race day as described in OYL's Race Management, Timing and Results Proposal to the Town, attached hereto and fully incorporated herein by this reference as Exhibit 1 for the following Marana Parks and Recreation #RunMarana Series 2021-2022 events in the Town: Turkey Trot on November 13, 2021; Dirt Dash on December 18, 2021; Eggnog Jog on December 31, 2021; Mother's Day 5K on May 7, 2022; and Aquathon on June, 18, 2022 (the "Races" or individually a "Race"), all as set forth in this section 1. a. In addition to the services outlined in Exhibit 1, OYL shall: 00077090.DOC /4 ON YOUR LEFT CONSULTING, LLC AGREEMENT -1- EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 i. Ensure that all race participants enter into a release and indemnification agreement in the form set forth in Exhibit 2, attached hereto and fully incorpo- rated herein by this reference, and an Assumption of Risk and Waiver of Liability Relating to Coronavirus/COVID-19 in the form set forth in Exhibit 3, attached hereto and fully incorporated herein by this reference. OYL shall provide the completed release and indemnification agreements to the Town within ten work- ing days once registration closes. ii. Ensure that all marketing and promotional materials produced by OYL for the Races shall include references to the "Town of Marana" or "Marana." 2. Support and assistance to be provided by the Toum. The Town shall provide support and assistance to OYL for the Races as outlined in Exhibit 1. 3. Admission fees. OYL and the Town shall evenly share all gross revenues from ad- mission fees collected for #RunMarana Series 2021-2022 events listed in section 1. OYL shall be responsible for all of its operating expenses. The Town makes no guarantee or promise regarding the amount of compensation OYL will receive due to registration fees. Payment will be due within 15 days of the final accounting. a. OYL shall make available to the Town for inspection any books, ledgers or statements kept by OYL regarding activities conducted pursuant to this Agreement. b. OYL shall be liable for all taxes applicable to the proceeds received by OYL under this Agreement. 4. Effective date and duration. This agreement shall be effective as of the signature date of the last Party to sign this Agreement, and shall expire on June 30, 2022. Not- withstanding the foregoing, the indemnification provisions set forth in section S below shall survive termination of this Agreement. 5. Relationship of the parties. In the performance of the services contemplated by this Agreement, OYL shall act solely as an independent contractor, and nothing expressed or implied in this Agreement shall be construed to create the relationship of employer and employee, partnership, principal and agent, or to create a joint venture between the Town and OYL. 6. Use of Tozlm logo and seal. The Town grants OYL a limited license to use, at no cost, the Town's logo in OYL's performance of the services described in this Agreement. OYL shall not use the Town's logo for any other purpose or use. OYL shall not modify, revise or alter the Town's logo in any way. 7. Insurance. OYL and any subcontractor who performs any work for OYL under this Agreement shall maintain insurance throughout the term of this Agreement from carri- ers acceptable to the Town with the following required minimum coverages and limits: 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT -2- EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 Worker's Compensation: Employer's Liability: Commercial General Liability: Business Auto Liability Statutory U.S. $100,000 U.S. $1,000,000 per occurrence U.S. $2,000,000 aggregate U.S. $500,000 combined single limit a. OYL shall deliver one or more certificates of insurance evidencing coverage as described in this section 7, including coverage required of any subcontractor, to the Town upon execution of this Agreement. OYL shall also deliver new certificates of insurance each time the policy(s) is updated. All certificates shall be delivered to the Town's Parks and Recreation Director. b. The Town shall be named as an additional insured on the commercial general liability insurance policies required by this section 7. As an additional insured, the Town shall be provided coverage for any liability arising out of operations per- formed in whole or in part by or on behalf of OYL or any subcontractor. OYL shall deliver additional insured endorsement(s) along with the certificate(s) of insurance required by subsection (a) above. The additional insured endorsement form identi- fication number shall also be included within the description box on the certificate of insurance and the applicable policy number shall be included on the endorsement. Town is responsible for any liability arising out of operations performed by the Town or its employees. c. All policies required pursuant to this section 7 shall be endorsed to contain a waiver of transfer of rights of recovery (subrogation) against the Town, its agents, officers, officials, and employees for any claims arising out of OYL's or any subcon- tractor's work or service. Endorsements evidencing this waiver of subrogation shall be provided to the Town along with all other insurance documentation required by this Article. d. The certificate(s) shall also stipulate that the insurance afforded OYL and any subcontractor shall be primary insurance and that any insurance carried by the Town, its agents, officials or employees shall be excess and not contributory insur- ance to that provided by OYL or any subcontractor. Coverage provided by OYL and any subcontractor shall be primary insurance with respect to all other available sources. e. Notwithstanding the requirements set forth in section 7 above, if the Contrac- tor is a sole proprietor without employees, the Contractor is not required to main- tain or provide proof of workers' compensation or employer's liability coverage, provided that the Contractor executes the following waiver: By signing below this paragraph, Contractor hereby confirms, for purposes of addressing workers' compensation coverage that Contractor is a sole proprietor, ON YOUR LEFT CONSULTING, LLC, an Arizona limited liability company, d/b/a On Your 00077090.DOC /4 ON YOUR LEFT CONSULTING, LLC AGREEMENT -3- EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 Left Fitness and Timing, and performing work as an independent contractor for the Town. Contractor acknowledges that Contractor is not the employee of the Town for workers' compensation purposes, and, therefore, Contractor is not entitled to work- ers' compensation benefits from the Town. Contractor understands that if Contrac- tor has any employees working for Contractor, Contractor must maintain workers' compensation insurance on them. Sole proprietor Date Town's insurance carrier Date f. Notwithstanding the requirements set forth in subsection (e) above, if any sub- contractor is a sole proprietor without employees, the subcontractor is not required to maintain or provide proof of workers' compensation or employer's liability cov- erage, provided that the subcontractor executes a waiver in accordance with A.R.S. § 23-961(M). Any such executed waiver shall be attached to this Agreement and incorporated in and fully made a part of this Agreement by this reference. g. The insurance requirements specified in this section 7 may not be changed or modified except by written agreement signed by both Parties. h. OYL shall give the Town at least 30 calendar days' written notice prior to a planned cancellation or reduction of any coverage required by this section 7. OYL shall give the Town immediate notice of any other cancellation or reduction of any coverage required by this section 7. Cancellation or reduction of any coverage re- quired by this section 7 is grounds for termination of this Agreement by the Town. 8. Indemnification. OYL agrees to defend, save, hold harmless, and indemnify the Town, its officials, employees, agents, successors, and assigns from and against any and all manner of claims, suits, lawsuits, action or actions, causes or causes of action, liabili- ties, damages, and other claims and demands of whatsoever nature or kind, in law or in equity, in tort or in contract, or otherwise caused by or resulting from OYL's errors, omissions, or negligent acts in the performance of services pursuant to this Agreement, or the errors, omissions or negligent acts of any party OYL contracts with in the per- formance of services pursuant to this Agreement, anyone directly or indirectly em- ployed by OYL, or anyone for whose acts OYL may be liable. 9. Regulatory compliance and approvals. Each Party shall at its own expense comply with all applicable federal, state and local laws, rules, and regulations in connection with its obligations under this Agreement. As part of this obligation OYL shall obtain any and all permits required by the Town, the Northwest Fire District or any other appropriate regulatory agency for its activities under this Agreement. 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT -4- EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 10. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, to the following addresses: If to the Town, to: TOWN OF MARANA Attn: Parks and Recreation Director 11555 W. Civic Center Drive - Bldg A3 Marana, AZ 85653 If to OYL, to ON YOUR LEFT CONSULTING, LLC Attn: Julie Stark. 2391 W. Tangerine Road Oro Valley, AZ 85742 11. Entire agreement. This Agreement constitutes the entire agreement and under- standing of the Parties pertaining to the subject matter of the Agreement and super- sedes all offers, negotiations, and other agreements of any kind. All prior and contem- poraneous agreements, representations and understandings of the Parties, oral or writ- ten, are superseded and merged in this Agreement. 12. Authority to execute agreement. The individuals executing this Agreement hereby represent that they have full right, power, and authority to execute this Agreement on behalf of their respective Parties. 13. Force majeure. Notwithstanding any other term, condition or provision of this Agreement to the contrary, if any Party to this Agreement is precluded from satisfying or fulfilling any duty or obligation imposed upon it due to labor strikes, material short- ages, war, civil disturbances, weather conditions, natural disasters, acts of God, or other events beyond the control of such Party, the time period provided herein for the per- formance by such Party of such duty or obligation shall be extended for a period equal to the delay occasioned by such events. 14. Immigration lazvs. OYL warrants that it will at all times comply with all federal immigration laws and regulations that relate to its employees and with Arizona Revised Statutes section (A.R.S. §) 23-214 (A). OYL acknowledges that pursuant to A.R.S. § 41-4401 and effective September 30, 2008, a breach of this warranty is a material breach of this Agreement subject to penalties up to and including termination of this Agreement, and that the Town retains the legal right to inspect the papers of any em- ployee who performs work or services pursuant to this Agreement to ensure compli- ance with this warranty. 15. Israel boycott divestments. OYL certifies that it is not currently engaged in, and agrees for the duration of this Agreement to not engage in, a boycott of Israel as defined by A.R.S. § 35-393. 16. Conflict of interest. This Agreement is subject to the provisions of A.R.S. § 38-511, which provides for termination in certain instances involving conflicts of interest. 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT -5- EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 17. Attorneys' fees. The prevailing Party in a civil action to enforce this Agreement shall be entitled to recover from the other Party, in addition to any relief to which such prevailing Party may be entitled, all costs, expenses and reasonable attorneys' fees in- curred in connection with that civil action. 18. Governing law. This Agreement shall be construed in accordance with the laws of the State of Arizona. 19. Termination. Either Party may terminate its participation in this Agreement for any reason upon at least 15 days' prior written notice to the other Party. 20. Miscellaneous. a. This Agreement may not be modified except in a writing signed by both of the Parties. b. The captions and section numbers appearing in this Agreement are inserted only as a matter of convenience, and do not define, limit, construe or describe the scope or intent of such sections or articles of this Agreement. c. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall consti- tute one and the same agreement. [SIGNATURE PAGE FOLLOWS] 00077090.DOC /4 ON YOUR LEFT CONSULTING, LLC AGREEMENT -6- EXHIBIT A TO MARANA RESOLUTION No. 2021-136 IN WITNESS WHEREOF, the Parties have duly executed this instrument below. The "Town": TOWN OF MARANA, an Arizona munici- pal corporation Ed Honea, Mayor Date: ATTEST: Town Clerk Date APPROVED AS TO FORM: Town Attorney Date "OYL" : ON YOUR LEFT CONSULTING, LLC, an Arizona limited liability company, d/b/a On Your Left Fitness and Timing Julie Stark., Member Date Federal I.D. # 00077090.DOC /4 ON YOUR LEFT CONSULTING, LLC AGREEMENT -7- EXHIBIT A TO MARANA RESOLUTION No. 2021-136 STATE OF ) SS. County of The foregoing instrument was acknowledged before me this day of 2021, by Julie Stark, Member of ON YOUR LEFT CONSULTING, LLC, an Arizona limited liability company, d/b/a On Your Left Fitness and Timing, on behalf of the LLC. (Seal) Notary Public 00077090.DOC /4 ON YOUR LEFT CONSULTING, LLC AGREEMENT 8 EXHIBIT A To MARANA RESOLUTION No. 2021-136 LIST OF EXHIBITS Exhibit 1: On Your Left Fitness and Timing Proposal submitted September 9, 2021 Exhibit 2: Form of Release and Indemnification Agreement Exhibit 3: Assumption of Risk and Waiver of Liability Relating to Corona- virus/COVID-19 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT 9 EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 Exhibit 1 to Agreement between the Town of Marana and On Your Left Consulting, LLC Race Management, Timing and Results Proposal Marana Parks & Recreation #RunMarana Series 2021-2022 Submitted on September 9, 2021 By: On Your Left Fitness and Timing, ("OYL") Julie Stark- (520) 241-9141 Julie trioyl.com OYL will provide the following services: Prior to Race Dav ■ Complete in-person and virtual race setup on RunSignUp (including any series registrations) ■ Complete store setup on RunSignUp ■ Complete RaceJoy configuration for virtual participants ■ Manage Marana Parks and Recreation access to all RunSignUp data including, but not limited to, participant data, financial data, and RaceJoy interac- tions/notifications ■ Build custom finisher's certificates to print and/or share on social media (Marana approved design) ■ Manage all race inquiries/emails and all pre -race announcements/emails regard- ing race day protocols/requirements and packet pick-up. ■ Manage all electronic results on RunSignUp and submitted through the RaceJoy app ■ Promotion by OYL via our website, RSU Partner database (13,000+), Facebook and Instagram. ■ Unlimited event consultation by phone or e-mail ■ Manage registrations by calendar year. On Race Dav ■ With the assistance of Marana Parks and Recreation staff and/or volunteers, OYL will manage #RunMarana Series 2021-2022 events. ■ Complete chip timing system and video backup of the race ■ Results with chip time, overall and age-group/division placing ■ Live Streaming Results via OYL website (link provided one week before race; cel- lular service dependent) ■ Digital or electromagnetic race clock ■ Finish line chute and/or cones ■ Start and/or Finish Line Blow -Up Arch 00077090.DOC /4 ON YOUR LEFT CONSULTING, LLC AGREEMENT 10 EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 All miscellaneous items needed for timing and results (generator, chip buckets, etc.) Complete system set-up and tear -down Marana will provide the following services: Prior to Race Day ■ Design and order race bibs ■ Promotion on Marana Parks and Recreation website and Facebook Page ■ Supply all logos and finisher's certificate graphics ■ Supply racer bibs to OYL at least one week before event to be chipped. ■ Accounting of all registrations from another site that's not RSU and/or from an in- person registration process ■ Day of Registration On Race Day ■ Manage Packet Pickup ■ Manage any in-person registration, if offered ■ Distribution of all store items sold ■ Supply social distancing signs and/or mask requirement signs at the Start/Finish lines. ■ Mark the course (OYL can provide Mile Marker flags, if needed) ■ Manage any aid stations on the course. This includes, but is not limited to, water bottles and or other supplies deemed necessary by Marana Parks and Recrea- tion. (OYL can provide aid station tables, if needed) ■ Provide an announcer/DJ PROVIDE STAFF/VOLUNTEERS ON COURSE, IF NEEDED. 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT 11 EXHIBIT A TO MARANA RESOLUTION NO. 2021-136 EXHIBIT 2 TO AGREEMENT BETWEEN THE TOWN OF MARANA AND ON YOUR LEFT CONSULTING, LLC Release and Indemnification Agreement. In consideration of the acceptance of my [Vendor Application or Race Registration] for the [name of Race] to be held [date of Race], I do hereby, for myself, my child/ren, my heirs, executors and assigns, release the Town of Marana (Town), and its agents, officials and employees from liability for any harm, injury, or damage, which I, or my minor child/ren, may suffer while participating in the above-described event. This includes all risks that are connected with the event whether foreseen or unforeseen. Additionally, I agree to defend, save, hold harmless, and indemnify the Town and its officials, employees, agents, successors, and assigns from and against any and all manner of claims, suits, lawsuits, action or actions, causes or causes of action, liabilities, damages, and other claims and demands of what- soever nature or kind, in law or in equity, in tort or in contract, or otherwise caused by or result- ing from my errors, omissions, or negligent or intentional acts in connection with the above- described event. I am of lawful age and legally competent to execute this Agreement. I under- stand the terms of this Agreement and have agreed to its terms as my own free act. If I am acting on behalf of an organization, I certify that I am the agent of the organization, I am acting on the organization's behalf, and I am duly authorized to execute this Release and Indem- nification Agreement on the organization's behalf. By signing below, I acknowledge that I have read and agree to abide by all the terms, conditions, rules and regulations applicable to this event and that I have read and understand the terms of this Release and Indemnification Agreement and agree that I shall be bound by its terms and conditions. Signature Printed Name Date 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT 12 EXHIBIT A TO MARANA RESOLUTION No. 2021-136 EXHIBIT 3 TO AGREEMENT BETWEEN THE TOWN OF MARANA AND ON YOUR LEFT CONSULTING, LLC Assumption of Risk and Waiver of Liability Relating to Coronavirus/COVID-19 The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. Attending any event, program, or activity at a Town of Marana Parks and Recreation facility or park may increase your risk of contracting COVID-19, and may in- crease the risk of transmitting COVID-19 to others. I acknowledge the highly contagious nature of COVID-19 and voluntarily assume the risk that I, or members of my group or organization, may be exposed to or infected by COVID-19 by partic- ipating in any way in any event, program, activity, reservation or rental taking place at a Town of Marana Parks and Recreation facility or park, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. I understand that the risk of becoming exposed to or infected by COVID-19 at a Town of Marana Parks and Recreation facility or park may result from the actions, omissions, or negligence of myself and others, including, but not limited to, Town employees, volunteers, and other participants and their families. I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to myself or members of my group or organization, including, but not limited to, personal injury, disability, and death, illness, damage, loss, claim, liability, or expense, of any kind, that they or I may experience or incur in connection with participation in any event, program, activi- ty, reservation or rental taking place at a Town of Marana Parks and Recreation facility. I hereby release, covenant not to sue, discharge, and hold harmless the Town, its employees, agents, and representatives, of and from any claims related to COVID-19, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. I further agree to indemnify and hold harmless the Town of Marana and its employees, agents, and representa- tives from any claim that may arise from or in connection with my or members of my group or organization's participation in any program taking place at a Town of Marana Parks and Recrea- tion facility, including claims related to COVID-19. I understand and agree that this release includes any claims based on the actions, omissions, or negligence of the Town, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after partic- ipation in any Town of Marana Parks and Recreation program. Park Patron Print Name Date Park Patron Signature 00077090.DOC A ON YOUR LEFT CONSULTING, LLC AGREEMENT 13