AGREEMENT FOR FUNDING OF CITY STAFF POSITIONS AT THE DEANNA ROSE CHILDREN S FARMSTEAD AND THE OVERLAND PARK ARBORETUM AND BOTANICAL GARDENS

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1 AGREEMENT FOR FUNDING OF CITY STAFF POSITIONS AT THE DEANNA ROSE CHILDREN S FARMSTEAD AND THE OVERLAND PARK ARBORETUM AND BOTANICAL GARDENS THIS AGREEMENT made and entered into the day of, 2013, by and between the CITY OF OVERLAND PARK, KANSAS (the City ), and THE ARTS AND RECREATION FOUNDATION OF OVERLAND PARK, INC. ( ARFOP ). WITNESSETH: WHEREAS, ARFOP is a not-for-profit corporation with public charity status and classified by the Internal Revenue Service as a 501 (c) (3) corporation; and WHEREAS, ARFOP was created to promote and support public parks, public recreation activities, and public art programs of the City; and WHEREAS, ARFOP is the fiscal sponsor of Friends of the Arboretum, Friends of the Farmstead and Friends of the Arts that respectively focus on the promotion, support and development of the Overland Park Arboretum and Botanical Gardens (the Arboretum ), Deanna Rose Children's Farmstead (the Farmstead ) and art within the City; and WHEREAS, the City and ARFOP have agreed to cooperate with respect to the funding of certain City contract staff positions at the Arboretum and at the Farmstead, and to enter into this Agreement to govern the funding and operation of said positions. NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties agree as follows: 1. Agreement to Cooperate The City agrees to hire, and ARFOP agree to fund, certain City contract staff positions at the Arboretum and at the Farmstead subject to the terms and provisions of this Agreement. 2. Designation of City Contract Staff Positions The City and ARFOP shall jointly designate the City contract staff positions subject to this Agreement by executing a Designation in the form as set forth in the attached Exhibit A (the Designation ). The City s Director, Recreation Services and Director, Parks Services are authorized to execute the Designation on behalf of the City. The Designation shall set forth the title of each position, a summary of duties for the position, and the agreed upon salary or salary range for the position. The term of the initial Designation shall run through December 31, The parties shall execute a new Designation for the following year pursuant to paragraph 3 below. 3. Annual Renewal of Designation On or about October 1 of each year, the parties shall execute a new Designation (in the form as set forth in the attached Exhibit A) identifying the City contract staff positions for the following calendar year. The new Designation should take effect on January 1 and should terminate on December 31. The purpose of the new Designation is for the parties to review and recommit to, or to revise and amend, the designated City contract staff positions, duties or salaries for the following calendar year. By executing the new Designation, ARFOP will be representing that it has the ability to fund

2 said position(s) during the following calendar year; and the City will be representing that it intends to utilize, employ and manage said position(s) during the following calendar year. 4. Amendment of Designation The (then applicable) Designation may be revised and amended at any time during the calendar year by the joint agreement of the parties. In order for the revision/ amendment to become effective, the parties shall execute a new Designation (in the form as set forth in the attached Exhibit A) 5. Responsibilities of ARFOP a. By executing a Designation as set forth above, ARFOP agrees to provide funding for the City contract staff position(s) at the Arboretum or at the Farmstead as set forth in the Designation. ARFOP s responsibility for funding the City contract staff position(s) shall commence annually on January 1 and terminate on December 31 (each calendar year being a separate term); provided, the initial term shall commence on the effective date of initial Designation. During each term, ARFOP agrees to provide the funding necessary to support each City contract staff position as set forth in the (then applicable) Designation. b. Prior to the City s employment of any City contract staff position to be funded by this Agreement, ARFOP shall provide documentation of its ability to fund said position for the designated term. c. ARFOP shall remit the funds to the City for each City contract staff member within thirty (30) days of its receipt of an invoice from the City. d. ARFOP shall have no access to the City contract staff members personnel records, performance rating or any other such employment records not otherwise available under the Kansas Open Records Act. e. ARFOP shall have no authority over the conduct, activity or supervision of the City contract staff member(s) funded by this Agreement. ARFOP may offer said City contract staff members immediate supervisor input on the staff members objectives, roles, tasks and job description as they relate to involvement in ARFOP-sponsored activities. 6. Responsibilities of the City a. Each City contract staff member funded by this Agreement will be a regular City contract position whose conduct and activity will be (solely) subject to the management, supervision and control of the City. b. The parties each acknowledge that the City will typically enter into a separate employment contract with each specific City contract staff position funded by this Agreement in order to outline the term, specific duties, pay, benefits and other responsibilities of the City contract staff member as well as the City s management and employer rights. Notwithstanding, the City agrees that the provisions of any such 2

3 employment contract shall be consistent with the provisions of this Agreement and the (then applicable) Designation between the parties. c. The City shall quarterly send an invoice to ARFOP requesting reimbursement for the cost incurred for each full-time City contract staff member funded by this Agreement. 7. General Provisions. a. The parties are independent contractors. It is specifically agreed between the parties that this Agreement does not create a joint venture agreement, partnership, employment agreement or agency relationship between the parties. b. This Agreement may be terminated by either party upon ninety (90) days written notice to the other party; provided, however, that any termination by ARFOP shall not take effect until the conclusion of its obligations under the then applicable Designation. c. Any and all notices required to be given under this Agreement or notices given in connection with this Agreement shall be given in writing, addressed as follows: CITY: ARFOP: City Clerk 8500 Santa Fe Drive Overland Park, KS The Arts and Recreation Foundation of Overland Park, Inc. P. O. Box Overland Park, KS Either party may change the address to which notices to such party are transmitted by so notifying the other party hereto. d. This Agreement supersedes any prior agreements or understandings between the parties. This Agreement constitutes the entire Agreement between the parties related to this subject matter, and any change to its terms must be in writing and signed by both parties. This Agreement is for the exclusive benefit of their parties, their successors and permitted assigns. There are no third party beneficiaries to this Agreement. This Agreement may be executed in multiple counterparts, all of which taken together constitute one and the same instrument. e. This Agreement may not be assigned or transferred by either party without the expressed written consent of the other party. f. Any failure by either party to enforce at any time or for any period of time any one or more of the terms or conditions of this Agreement, shall not be a waiver of such terms or conditions or of either party s right thereafter to enforce each and every term and condition of this Agreement. 3

4 g. If any provision of this Agreement is found unenforceable or invalid, the remainder of the Agreement will remain in full force and effect and it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose. To the fullest extent permitted by applicable law, if any provision of this Agreement is invalid or unenforceable a suitable and equitable provision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision. h. This Agreement will be governed by the laws of the State of Kansas, without regard to its conflict of laws principles. IN WITNESS WHEREOF, the parties set their hands on the day and year first above shown. CITY OF OVERLAND PARK THE ARTS AND RECREATION FOUNDATION OF OVERLAND PARK, INC Carl Gerlach, Mayor Todd Roberts, President ATTEST: Marian Cook, City Clerk APPROVED AS TO FORM: Stephen B. Horner Senior Assistant City Attorney 4

5 Agreement for Funding of City Staff Positions Page 5 EXHIBIT A DESIGNATION OF CITY CONTRACT STAFF POSITIONS For the period of, 20 through December 31, 20 Effective Date:, 20 The CITY OF OVERLAND PARK, KANSAS (the City ), and THE ARTS AND RECREATION FOUNDATION OF OVERLAND PARK, INC. ( ARFOP ) hereby designate the following City contract staff positions as the current positions subject to the Agreement for Funding of City Staff Positions at the Deanna Rose Children s Farmstead and the Overland Park Arboretum and Botanical Gardens, dated, 2013: Position Title: Job Summary: Funding Commitment: Position Title: Job Summary: Funding Commitment: By executing this Designation, the City agrees to employ and ARFOP agrees to fund the abovesaid City contract staff positions subject to the above-said Agreement. This Designation shall supersede, repeal and replace any prior Designation between the parties. CITY OF OVERLAND PARK THE ARTS AND RECREATION FOUNDATION OF OVERLAND PARK, INC Tony Cosby Director, Recreation Services Todd Roberts President Greg Ruether Director, Parks Services ATTEST: Marian Cook, City Clerk 5