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HomeMy WebLinkAbout06/20/2017 06J Downtown Yakima Business Improvement District Maintenance and Beautification Agreement with Downtown Association of YakimaBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 6.J. For Meeting of: June 20, 2017 ITEM TITLE: Resolution authorizing Maintenance and Beautification Services agreement for the Downtown Yakima Business Improvement District SUBMITTED BY: Sean Hawkins, Economic Development Manager, 575-6274 SUMMARY EXPLANATION: In December 2016, the Council Economic Development Committee reviewed a Downtown Partnership Proposal to begin moving all City of Yakima based downtown services to the Downtown Association of Yakima (DAY). The goal of this effort was to free staff time to work on the City's Economic Development Plan 2017-2020 and to place these services in the hands of the downtown business community where they typically are performed in most communities. The Downtown Partnership Proposal involves three steps. The first two steps were approved by the City Council at their February 7, 2017 meeting when the Council approved two agreements with the DAY: 1. Agreement for Downtown Development and Promotion Services where the City agreed to apply for the full amount of the Washington Main Street Tax Credit for the years 2018-2020 2. Agreement for Special Event Promotion Services where the City transferred the operation and ownership of Downtown Summer Nights, Yakima Roots and Vines Festival and Yakima Blues Festival to DAY. The final step in the Downtown Partnership Proposal is to transfer the operation of downtown maintenance and beautification services through the Downtown Yakima Business Improvement District (DYB I D) to DAY upon the end of the City's five year contract with Block by Block which ends on June 30, 2017. DAY's full time executive director, Andrew Holt, started on May 1, 2017 and the organization is ready to assume the maintenance duties. The agreement with DAY includes the following key provisions: 1. Provide an average of 120 weekly hours of maintenance services. The is 15 more weekly hours than is currently provided under the Block by Block contract. 2. A six month initial term (July 1, 2017 - December 31, 2017) to place the agreement in line with the City's annual budgeting process and the four full year extensions beginning January OAF 1, 2018. 3. DAY and City Public Works staff will meet monthly to discuss downtown issues and solutions. Funding for this agreement will come from the DYBI D fees that are collected. Including the City's participation, the DYBID produces an annual revenue of $210,000 specifically allocated for maintenance and beautification efforts. ITEM BUDGETED: STRATEGIC PRIORITY: Yes Economic Development APPROVED FOR SUBMITTAL: `""City Manager cl*� STAFF RECOMMENDATION: Adopt resolution. BOARD/COMMITTEE RECOMMENDATION: The Council Economic Development Committee reviewed the agreement at their June 1, 2017 meeting and voted 3-0 (Coffey, A. Gutierrez and Lover) to bring it to the full Yakima City Council at their June 20, 2017 meeting. ATTACHMENTS: Description Upload Date Type D Resolution DAY DYBID Agreement 6/912017 Cover Memo D Doam Partnership Proposal December 2016 6/512017 Cover Memo D DAY DYBIDAgreen-ent 6/9/2017 Ca Memo D Exhibit A - DAY DYBID Contract 6/912017 Coxer Merno RESOLUTION NO. R -2017- A RESOLUTION authorizing Maintenance and Beautification Services agreement for the Downtown Yakima Business Improvement District WHEREAS the City has a deep and abiding interest in the maintenance, beautification, improvement and promotion of the City's downtown area; and WHEREAS, the City has expended significant resources toward the improvement of the sidewalks and general appearance of the City's downtown areas through the installation of sidewalks, street lighting, aesthetic improvements and planting displays; and WHEREAS, The Downtown Association of Yakima, an organization comprised on downtown and community stakeholders, has the ability to build partnerships, hire staff and maintain the Yakima's downtown district within the details this contract; WHEREAS, the parties agree that the Association will administer the funds and activities described below in Exhibit 'A," attached hereto and fully incorporated herein, to perform downtown beautification and maintenance services within the City in accordance with the terms and conditions of this Agreement, now, therefore; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: Section 1. The Downtown Maintenance and Beautification Services Agreement attached hereto and fully incorporated herein by this reference, is approved. Section 2. The City Manager is authorized and directed to execute and administer such Agreement for, and on behalf of, the City of Yakima. ADOPTED BY THE CITY COUNCIL this day of '2017. ATTEST: Kathy Coffey, Mayor Sonya Claar Tee, City Clerk Memorandum To: City Manager, Cliff Moore From: Sean Hawkins, Economic Development Manager Date: December 1, 2016 Subject: Downtown Yakima Partnership Downtown Yakima Partnership Concept Based on conversations with the City's Council Economic Development Committee, there appears to be general consensus for the City's Economic Development staff to transition out of the day-to-day work they have been performing in downtown development and shifting this work to the Downtown Association of Yakima. Throughout the last few months, City of Yakima staff have been working directly with the Downtown Association of Yakima and various downtown stakeholders on the creation of a Downtown Yakima Partnership proposal. The partnership model is the most common downtown management method used throughout the United States. The concept of the Downtown Yakima Partnership would be to place Yakima's three pillars of downtown activity under one organizational home. Under this proposal, the Downtown Association of Yakima would manage the three following reoccurring downtown programs: 1) Promotion and Downtown Communication — These services are currently performed by the Downtown Association of Yakima with City assistance. 2) Downtown Event Production — the City of Yakima Economic Development Department currently produces Downtown Summer Nights, Roots and Vines Festival, Blues and Brews Festival, Lunchtime Live, Light Up the Plaza and more. 3) Downtown Yakima Business Improvement District — the City of Yakima Economic Development Department currently manages the Block by Block contract for downtown maintenance services. Downtown Yakima Partnership Funding To fund the Downtown Yakima Partnership, City staff seeks guidance from council on funding the following three expenditures: Washington State Main Street Tax Credit City staff is seeking council approval to enter into an agreement with the Downtown Association of Yakima to continue an annual application for a Washington State Main Street Tax Credit. The City of Yakima has successfully applied for this funding in 2015 and 2016. The City of Yakima annually pays over $500,000 in utility taxes to the State of Washington and upon Department of Revenue approval, this program allows us to keep up to $100,000 of our annual tax obligation Page 1 of 3 and provide it to our local State Certified Main Street program. The tax credit program allows a tax credit to the City in the year after it is approved so the tax credit we were awarded in 2015 reduced our utility tax obligation in 2016. The tax credit funding works like this: 2016 — City pledges $133,333 to the Downtown Association of Yakima and applies to the Department of Revenue for the tax credit on the first working day of 2017; 2017 — City receives $100,000 tax credit towards their State of Washington Tax Obligation as a result of the pledge; 2017 — Downtown Association reimburses the City of Yakima $33,333 to cover the net cost of the tax credit. Under this scenario, the impact to the City of Yakima budget would be zero and funding to provide downtown events and maintenance is made available. City of Yakima Special Event Fund City staff is seeking council guidance on $30,000 in annual funding from the $75,000 to the Downtown Association of Yakima to produce special events in downtown that the City of Yakima Economic Development staff originated in 2013 such as Downtown Summer Nights, Roots and Vines, Blues and Brews and more. The $75,000 Special Event Fund noted above is included in the 2017 City of Yakima draft budget. It is recommended for the City to exit out of assisting downtown events by providing $30,000 toward them in 2017, $20,000 toward them in 2018 and $10,000 towards them in 2019. The balance of $45,000 in the Special Event Fund in recent years has been used to fund Cinco De Mayo, Viva La Music and Yakima Folklife Festival and would be available with council consideration to fund again in 2017. Downtown Yakima Business Improvement District Since the inception of the Downtown Yakima Business Improvement District in 2008, the City has made an annual contribution of $50,000 to the district budget to represent the properties the City owns in the district including the Capitol Theatre, Convention Center, City Hall and municipal parking lots. Including the City's participation, the DYBID produces annual revenue of $210,000 annually specially for maintenance funding. The City's portion of DYBID funding is included in the 2017 City of Yakima draft budget and is sourced from the Central Business District account. It is recommended that this funding continue as long the district remains in existence. Downtown Yakima Partnership Creation Timeline The following is a possible timeline and steps to establish the Downtown Yakima Partnership: December 2016 — Yakima City Council approves State of Washington Main Street Tax Incentive in the City of Yakima budget for $133,333. City Council will also consider a special event fund of $75,000 in the City of Yakima 2017 Budget. The Downtown Association would refund the City of Yakima back the net portion of the Main Street Tax Incentive. Page 2 of 3 December 2016 — The Downtown Association of Yakima will advertise locally and nationally to fill an Executive Director position. The expectation will be to have this position fill by March 1, 2017. January 2016 — City staff will bring a resolution will to the Yakima City Council authorizing the City Manager to execute two agreements with the Downtown Association of Yakima. 1. Approve a three year agreement for the City to apply for the maximum amount of annual funding from the Washington State Main Street Tax Incentive. This is currently set at $133,333 annually. The funds available to the Downtown Association of Yakima would be subject to the availability of funding available through the State of Washington Main Street Tax Incentive Program. The Downtown Association of Yakima would refund the net portion of the funding back to the City of Yakima. 2. Approve a three year agreement for $30,000 of special event funds to produce Downtown Summer Nights, Roots and Vines Festival, Blues and Local Brews Festival, Second Saturday Cruise Nights, Holiday Activities and other special events. This funding would be sourced from the City's $75,000 Special Event Fund. The amount would be reduced to $20,000 in 2018 and $10,000 in 2019. It would be written into the agreement that the funding would cease 2020. January 2016 — the Downtown Association of Yakima will create one seat on their board for the City's Economic Development Department and the City Council will appoint a liaison to attend board meetings. March 1, 2017 — The City of Yakima Purchasing Department will provide a one month notice to Block by Block of the termination of their maintenance contract. March 2017 — City staff will bring a resolution to the Yakima City Council authorizing the City Manager to approve a maintenance agreement with the Downtown Association of Yakima to provide services in the Downtown Yakima Business Improvement District. The Downtown Association of Yakima would be required to hire and supervise a minimum of 120 weekly hours of clean team services. The City's DYBID contribution as well as the remaining balance of the 2017 portion of the DYBID maintenance fund will fund this work. The City Council would also end the Downtown Yakima Business Improvement District Advisory Committee and require that the Downtown Association of Yakima create a Clean and Safe Committee to address clean and safe issues in downtown Yakima as part of the maintenance agreement. Page 3 of 3 DOWNTOWN ASSOCIATION OF YAKIMA AGREEMENT FOR MAINTENANCE AND BEAUTIFICATION SERVICES for City of Yakima, Washington This agreement is made and entered into on this 1st day of July, 2017 between the City of Yakima, Washington, a Washington municipal corporation (hereinafter referred to as "CITY"), and Downtown Association of Yakima, a non-profit corporation (hereinafter referred to as "DAY"). CITY and DAY for mutual consideration hereinafter set forth, agree as follows: OBJECTIVES A. To provide administrative, management, maintenance services and beautification programs in downtown Yakima and to fulfill the objectives and obligations set forth in the Scope of Services, below and as further specified in Exhibit "A," attached hereto and incorporated herein by this reference. SCOPE OF SERVICES DAY agrees to perform consulting, management, administrative, advisory and maintenance services for the CITY as set forth generally below, and as further specified in Exhibit "A". 1. Develop, implement and provide daily management of maintenance and beautification programs within the Downtown Yakima Business Improvement District (DY BI D). 2. Provide a minimum of 6240 annual hours (average of 120 weekly hours) of service in the DYBI D together with a proposed action deployment plan for meeting the Scope of Services requirements, with final approval of DAY's deployment plan by City of Yakima prior to initiating work. 3. Contract for, manage and/or provide for the provision of planting and landscape services in the DYBID. 4. Contract for and/or provide daily oversight of maintenance ambassador programs. 5. Contract for and/or provide other works and services necessary to fully comply with the identified services required by this Agreement. 6. Provide CITY with copies of all AGREEMENTs executed by DAY with sub- contractors and vendors that are necessary for the provision of the materials and labor required under the terms of this AGREEMENT (i.e. flower baskets). 7. Provide the City with detailed status summaries on January 1, March 1, July 1, and October 1 of each AGREEMENT year detailing all work efforts and management services provided in compliance with the agreements set forth herein. III. PAYMENT Consultant, Management, Administrative, Advisory and Maintenance Services 1. As compensation for the managerial, administrative, and advisory and maintenance services provided by DAY in accordance with this Agreement the CITY agrees to pay DAY as set forth in Paragraphs III A. and III B. The City will pay DAY One hundred twenty two thousand and five hundred dollars ($122,500) from DYBI D Assessments and City contribution for DAY managerial, administrative, advisory and maintenance services provided under this AGREEMENT. 2. No payment shall be made through this AGREEMENT for any consultant, managerial, administrative, maintenance and advisory work performed by DAY, except for work identified and set forth in this AGREEMENT and the attached and incorporated Exhibits hereto. IV. General provisions applicable to all services provided 1. DAY shall, in accord with the rates set forth herein, submit invoices to the CITY not more often than once per month during the progress of the work for partial payment of work completed to date. Invoices shall cover the period of time DAY performed work for the CITY during the billing period. The CITY shall pay DAY for services rendered in the month following the actual delivery of the work and will remit payment within thirty (30) days from the date of receipt of invoice. 2. DAY shall not be paid for services rendered under the AGREEMENT unless and until they have been performed to the satisfaction of the CITY. 3. In the event DAY has failed to perform any substantial obligation required by this AGREEMENT and such failure has not been cured within ten (10) days following notice of said failure from the CITY, then the CITY may, in its sole discretion, upon written notice to DAY, withhold any and all monies due and payable to DAY, without penalty, until such failure to perform is cured or otherwise adjudicated. "Substantial" for purposes of this AGREEMENT means faithfully fulfilling the terms of the AGREEMENT with variances only for technical or minor omissions or defects. 4. Unless otherwise provided for in this AGREEMENT or any exhibits or attachments hereto, DAY shall not be paid for any billings or invoices presented for payment for work accomplished prior to the execution of the AGREEMENT or after its termination, provided however that it is understood and agreed that billings or invoices that are submitted after the termination of this AGREEMENT that are for compensation for work that was completed prior to the AGREEMENT's termination, and accepted by the City, will be paid. IV. RETAINER Retainer is waived for CITY. V. STANDARD PROVISIONS 061 1. TERM OF AGREEMENT The effective date of this AGREEMENT shall begin July 1, 2017, and it shall terminate December 31, 2017, unless terminated earlier by the CITY in accordance with paragraph 6 of this Section of this AGREEMENT. Beginning on January 1, 2018 and for the remainder of the term(s) as they may be extended within the limitations set forth herein, this AGREEMENT may be extended as an annual AGREEMENT and the City may, at its option, extend the AGREEMENT on a year to year basis for up to four additional one (1) year terms, provided that either party may at any time during the life of this AGREEMENT, or any extension thereof, terminate this AGREEMENT in accordance with the terms set forth in paragraph 6, below. Annual extensions shall be automatic, and shall go into effect without written confirmation, unless either Party provides sixty (60) days written notice of the intent not to extend the AGREEMENT. Prices shall remain firm for the first six month period of the AGREEMENT. Compensation for future extensions of this AGREEMENT shall be determined after estimates of annual DYBID assessments, together with the amount available in the City's CBD account have been considered: any change in compensation during the extension process shall be approved through the City's budget process each fall. 2. AGREEMENT REPRESENTATIVES Each party to this AGREEMENT shall have a representative. Each party may change its representative upon providing written notice to the other party. The parties' representatives are as follows: a. For DAY: Name of Representative: Andrew Holt Title: Executive Director Mailing Address: 14 South First Street City, State and Zip Code: Yakima, WA 98901 Telephone Number: E-mail Address: yakimadowntown@gmail.com b. For CITY: Name of Representative: Sean Hawkins Title: Economic Development Manager Mailing Address: 128 North Second Street City, State and Zip Code: Yakima, WA 98901 Telephone Number: 509 575-6274 E-mail Address: sean.hawkins@yakimawa.gov HE 3. AMENDMENTS AND CHANGES IN WORK a. In the event of any errors or omissions by DAY in the performance of any work required under this AGREEMENT, DAY shall make any and all necessary corrections without additional compensation. All work submitted by DAY shall be certified by DAY and checked for errors and omissions. DAY shall be responsible for the accuracy of the work, even if the work has been accepted by the CITY. b. No amendment, modification or renewal shall be made to this AGREEMENT unless set forth in a written Amendment approved by the City Manager, signed by both parties and attached to this AGREEMENT. Work under an Amendment shall not proceed until the CITY has duly executed the Amendment. 4. HOLD HARMLESS AND INDEMNIFICATION a. DAY shall hold harmless and indemnify the CITY, its officers, officials, employees and agents, from and against any and all claims, actions, suits, liability, losses, expenses, damages, and judgments of any nature whatsoever for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of DAY'S negligence or willful misconduct in the performance of this AGREEMENT. Claims shall include, but not be limited to, claims that information supplied by DAY infringes any patent, copyright, trademark, trade name, or otherwise results in an unfair trade practice. PROVIDED HOWEVER, that DAY's obligations hereunder shall not extend to injury, sickness, death or damage caused by or arising out of the sole negligence of the CITY, its officers, officials, employees or agents. PROVIDED FURTHER, that in the event of the concurrent negligence of the parties, DAY's obligations hereunder shall apply only to the percentage of fault attributable to DAY, its employees or agents. b. In any and all claims against the CITY, its officers, officials, employees and agents by any employee or subcontractor of DAY, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligation under this Section shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for DAY under Worker's Compensation acts, disability benefits acts, or other employee benefits acts, it being clearly agreed and understood by the parties hereto that DAY expressly waives any immunity DAY might have had under such laws. By executing the AGREEMENT, DAY acknowledges that the foregoing waiver was mutually negotiated by the parties and that the provisions of this Section shall be incorporated, as relevant, into any AGREEMENT DAY makes with any subcontractor or agent performing work hereunder c. Additionally, for clarity, CITY will defend, indemnify and hold harmless DAY for any claim for personal injury, death or damage to tangible personal or real property to the extent caused by the negligence or willful misconduct of the CITY, its employees, affiliates or agents. 5. INSURANCE a. Workers' Compensation: DAY shall maintain workers' compensation insurance as required by Title 51, RCW, and shall provide evidence of coverage to the M m CITY. If DAY has employees, DAY shall request the Washington State Department of Labor and Industries, Workers' Compensation Representative, send written verification to CITY that DAY is currently paying Workers' Compensation. b. Commercial General Liability: DAY shall maintain Commercial General Liability, or a combination of Commercial General Liability and Umbrella Liability coverage for bodily injury, personal injury and property damage, subject to limits of not less than $2,000,000 per occurrence. The general aggregate limit shall apply separately to this AGREEMENT and be no less than $2,000,000. i. DAY shall provide Commercial General Liability coverage that does not exclude any activity to be performed in fulfillment of this AGREEMENT. ii. DAY's Commercial General Liability insurance shall include the CITY, its officers, officials, employees and agents with respect to performance of services, and shall contain no special limitations on the scope of protection afforded to the CITY as an additional insured. iii. DAY shall furnish the CITY with evidence that the additional insured provision required above has been met. An acceptable form of evidence is an Acord certificate of insurance with the endorsement page(s) of the policy showing the CITY as an additional insured attached. iv. If DAY's liability coverage is written as a claims made policy, then Day must evidence the purchase of an extended reporting period or "tail" coverage for a three-year period after contract completion, or otherwise maintain the coverage for the three-year period. V. DAY shall also maintain Employers Liability Coverage (Washington Stop Gap) with a limit of not less than $1 million. c. Automobile Liability: DAY shall maintain Business Automobile Liability, or a combination of Business Auto Liability and Umbrella Liability insurance with a limit of not less than $2,000,000, per occurrence combined Bodily Injury and Property Damage liability. Coverage shall include owned, hired and non -owned automobiles. d. Other Insurance Provisions: i. DAY's liability insurance provisions shall be primary with respect to any insurance or self-insurance programs covering the CITY, its elected and appointed officers, officials, employees and agents. ii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or agents. iii. DAY's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. iv. DAY shall include all subconsultants/subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each 12 subconsultant. All coverage for subconsultants/subcontractors shall be subject to all of the requirements stated herein. V. The insurance limits mandated for any insurance coverage required by this AGREEMENT are not intended to be an indication of exposure nor are they limitations on indemnification. vi. DAY shall maintain all required policies in force from the time services commence until services are completed. Certificates, policies, and endorsements expiring before completion of services shall be promptly replaced. vii. DAY shall require that each subcontractor entering into contracts to provide services on behalf of DAY shall include insurance provisions in said contracts that provide the same insurance coverage that is set forth in this AGREEMENT, shall comply with all provisions of paragraph 5, herein, and shall include such requirements in all RFP's submitted to the CITY for bidding. viii. DAY's Automobile Liability insurance shall include the CITY, its officers, officials, employees and agents with respect to performance of services, and shall contain no special limitations on the scope of protection afforded to the CITY as an additional insured. e. Verification of Coverage and Acceptability of Insurers: DAY shall place insurance with insurers licensed to do business in the State of Washington and having A.M. Best Company ratings of no less than A- VII or better i. Certificates of Insurance shall show the Certificate Holder as CITY OF YAKIMA and include c/o of the Office or Department issuing the AGREEMENT. The address of the Certificate Holder shall be shown as the current address of the Office or Department. ii. Written notice of cancellation or change shall be mailed to the City's Representative identified in Section 4 of this AGREEMENT iii. DAY shall furnish the CITY with properly executed certificates of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section prior to commencement of services. The certificate will, at a minimum, list limits of liability and coverage. The certificate will provide that the underlying insurance contract will not be canceled or allowed to expire except on thirty (30) days prior written notice to the CITY. iv. DAY or its broker shall provide a copy of any and all insurance policies specified in this AGREEMENT upon request of the CITY. 6. TERMINATION a. Either Party may terminate this AGREEMENT without cause upon giving sixty (60) days written notice by Certified Mail to the other Party's Representative. In that event, the CITY shall pay DAY a prorated portion of the total annual compensation authorized under this agreement in an amount that is proportional to the days of the year for which the services have been completed. Payment shall be made in accordance with Section III of this AGREEMENT. Con 13 b. In the event that the City's funding for this AGREEMENT obligation is withdrawn, reduced or limited in any way after the effective date of this AGREEMENT or during the term of any extension hereof, the CITY may summarily terminate the AGREEMENT notwithstanding any other termination provision. Termination under this paragraph shall be effective upon the date specified in the written notice of termination sent by the CITY to DAY. Services that are performed after the effective date will not be eligible for compensation, and any invoice for such services will not be honored. Any services that are performed prior to and including effective date will be eligible for compensation. c. If DAY breaches any of its obligations hereunder, and fails to cure the breach within ten (10) days of written notice to do so by the CITY, the CITY may terminate this AGREEMENT, in which case the CITY shall pay DAY only for services that have been accepted by the CITY up to the date of termination, in accordance with Section III of this AGREEMENT. Upon such termination, the CITY, at its discretion, may obtain performance of the work elsewhere, and DAY shall bear all costs and expenses incurred by the CITY in completing the work and all damages sustained by the CITY by reason of DAY's breach. 7. NO CONFLICT OF INTEREST DAY represents that it and its employees do not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. DAY further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 8. ASSIGNMENT, DELEGATION, AND SUBCONTRACTING a. DAY shall perform the terms of the AGREEMENT using only its bona fide employees, subcontractors or agents, and the obligations and duties of DAY under this AGREEMENT shall not be assigned, delegated, or subcontracted to any other person or firm without the prior express written consent of the CITY. b. DAY warrants that it has not paid nor has it agreed to pay any company, person, partnership, or firm, other than a bona fide employee working exclusively for DAY, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this AGREEMENT. 9. NON -WAIVER OF RIGHTS The parties agree that the excuse or forgiveness of performance, or waiver of any provision(s) of this AGREEMENT does not constitute a waiver of such provision(s) or future performance, or prejudice the right of the waiving party to enforce any of the provisions of this AGREEMENT at a later time. 10. INDEPENDENT CONTRACTOR a. DAY's services shall be furnished by DAY as an independent contractor and not as an agent, employee or servant of the CITY. DAY specifically has the right to direct and control DAY's own activities in providing the agreed services in accordance with the specifications set out in this AGREEMENT. 7 14 b. DAY acknowledges that the entire compensation for this AGREEMENT is set forth in Section III of this AGREEMENT, and DAY is not entitled to any CITY benefits, including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other insurance benefits, fringe benefits, or any other rights or privileges afforded to CITY OF YAKIMA employees. c. DAY shall have and maintain complete responsibility and control over all of its subconsultants, employees, agents, subcontractors and representatives. No subconsultant, employee, agent, subcontracor or representative of DAY shall be or deemed to be or act or purport to act as an employee, agent or representative of the CITY. d. DAY shall assume full responsibility for the payment of all payroll taxes, use, sales, income or other form of taxes, fees, licenses, excises, or payments required by any City, federal or state legislation which is now or may be enacted during the term of this AGREEMENT as to all persons employed by DAY and as to all duties, activities and requirements by DAY in performance of the work on this project and under this AGREEMENT and shall assume exclusive liability therefore, and meet all requirements there under pursuant to any rules or regulations. DAY shall comply with all provisions of Chapter 39.12 RCW concerning prevailing wages on Public Work. e. DAY agrees to immediately remove any of its employees, agents or subcontrators from assignment to perform services under this AGREEMENT upon receipt of a written request to do so from the CITY's Representative or designee. 11. COMPLIANCE WITH LAWS DAY shall comply with all applicable federal, state and local laws, rules and regulations in performing this AGREEMENT. 12. INSPECTION OF BOOKS AND RECORDS The CITY may, at reasonable times and with reasonable prior notice, inspect the books and records of DAY relating to the performance of this AGREEMENT. DAY shall keep all records required by this AGREEMENT for six (6) years after termination of this AGREEMENT or any extensions thereof for audit purposes. 13. NONDISCRIMINATION DAY, its assignees, delegates, subcontrators or subconsultants shall not discriminate against any person in the performance of any of its obligations hereunder on the basis of race, color, creed, ethnicity, religion, national origin, age, sex, marital status, veteran status, sexual orientation or the presence of any disability. Implementation of this provision shall be consistent with RCW 49.60.400. 14. OWNERSHIP OF MATERIALS/WORK PRODUCED a. Material produced in the performance of the work under this AGREEMENT shall be as works for hire as defined by the U.S. Copyright Act of 1976 and shall be owned by the CITY. This material includes, but is not limited to, books, computer programs, plans, specifications, documents, films, pamphlets, reports, sound reproductions, studies, surveys, tapes, and/or training materials. Ownership includes N. 15 the right to copyright, patent, register, and the ability to transfer these rights. The CITY agrees that if it uses any materials prepared by DAY for purposes other than those intended by this AGREEMENT, it does so at its sole risk and it agrees to hold DAY harmless therefore to the extent such use is agreed to in writing by DAY. b. An electronic copy of all or a portion of material produced shall be submitted to the CITY upon request or at the end of the job using the word processing program and version specified by the CITY. 15. DISPUTES Differences between DAY and the CITY, arising under and by virtue of this AGREEMENT, shall be brought to the attention of the CITY at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. Any dispute relating to the quality or acceptability of performance and/or compensation due DAY shall be decided by the CITY's Representative or designee. All rulings, orders, instructions and decisions of the CITY's Representative shall be final and conclusive, subject to DAY's right to seek judicial relief pursuant to paragraph 16 of this Section. 16. CHOICE OF LAW, JURISDICTION AND VENUE a. This AGREEMENT has been and shall be construed as having been made and delivered within the State of Washington and it is agreed by each party hereto that this AGREEMENT shall be governed by the laws of the State of Washington, both as to its interpretation and performance. b. Any action at law, suit in equity, or judicial proceeding arising out of this AGREEMENT shall be instituted and maintained only in courts of competent jurisdiction in YAKIMA COUNTY, Washington. 17. SEVERABILITY a. If a court of competent jurisdiction holds any part, term or provision of this AGREEMENT to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the AGREEMENT did not contain the particular provision held to be invalid. b. If any provision of this AGREEMENT is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. c. Should the CITY determine that the severed portions substantially alter this AGREEMENT so that the original intent and purpose of the AGREEMENT no longer exists, the CITY may, in its sole discretion, terminate this AGREEMENT. 18. NOTICES Any notices shall be effective if personally served upon the other party or if mailed by registered or certified mail, return receipt requested, to the addresses set out in paragraph 2 of this Section. Notice may also be given by facsimile with the original to I follow by regular mail. Notice shall be deemed to have been given three days following the date of mailing or immediately if personally served. For service by facsimile, service shall be effective upon receipt during working hours. If a facsimile is sent after working hours, it shall be effective at the beginning of the next business day. 19. ENTIRE AGREEMENT The parties agree that this AGREEMENT is the complete expression of its terms and conditions. Any oral or written representations or understandings not incorporated in this AGREEMENT are specifically excluded. VI. AUTHORIZED SIGNATORS Downtown Association of Yakima in Victor Delong, President Date: City of Yakima go Cliff Moore, City Manager Date: 10 M 17 Exhibit A DOWNTOWN ASSOCIATION OF YAKIMA AGREEMENT FOR MAINTENANCE AND BEAUTIFICATION SERVICES for City of Yakima, Washington Maintenance and Beautification Services Goals: 1. To provide a clean and safe environment for downtown Yakima; 2. To support the police department, property owners and tenants in overall crime prevention efforts and reduction in neighborhood street disorder; 3. To offer a customer service orientation to pedestrians, especially convention visitors; 4. To provide highly visible district security presence; 5. To provide a vibrant, clean, green and colorful downtown with supplemental landscaping. Services Scope of Work: Cleanin_g: a. Pan and broom litter pick-up of downtown sidewalks b. Sweeping sidewalks to remove debris c. Litter pickup throughout downtown district d. Cleaning street furniture e. Cleaning out planters and planting areas f. Paper sign and handbill removal from public and private property g. Removal of graffiti on public and private property. A waiver process must be established for removal of graffiti on private property h. Weekly removal of trash can contents and liner replacement of City trash cans and other times as needed throughout the week i. Two dumpsters with weekly pickup will be provided by the City of Yakima in a convenient downtown location for district needs j. Communicate large maintenance issues to appropriate City of Yakima departments k. Assist Street Division to blow / sweep sidewalk debris into the streets in advance of street sweepers 2. Landscape Maintenance a. Regular maintenance, pruning, trimming and weed abatement of downtown district landscaped flower beds. Winterizing of the planters will need to take place in November by cutting back vegetation. Weed abatement will be performed throughout the district on public right of way b. Purchase hanging baskets (300 annually) and flowers for planters annually (214 annually). c. Hang flower baskets (estimated at 300 per Season) at the beginning of the season, and take down flower baskets at end of season. Provide storage for baskets during the off season 18 d. Plant City ground planters (214) and flower beds as needed at beginning of season e. "Dead -heading" — includes removing dead flower blooms to encourage new flowers for both ground planters and hanging baskets f. Plant Replacement as needed through season based on budget availability g. Watering, fertilizing (slow release fertilizer pellets that will release fertilizer throughout the season, to be applied once a month), and insecticide application as needed h. Minor irrigation system repairs (Major repairs will be reported to and completed by the City). Minor repairs can be defined as above ground irrigation issue. The City will repair all below ground irrigation issues. i. Turn on the irrigation systems and ensure watering schedule is programmed to operate by Mid -March; the City of Yakima will blow out the irrigation lines at the end of the season. j. Mow millennium plaza grass and the 2nd Street and Yakima Avenue pocket park grass as needed to provide neat appearance. k. Within nine months of approval of this agreement, a staff member must obtain an applicators license for weed abatement 3. Pressure Washing Hot spot power wash the district sidewalks as needed throughout the year. Pressure washing work includes spills, stains and cleanup from special events. The pressure washer will also be used to remove graffiti. 4. Snow Removal Snow removal on cross walk landings throughout the district as well as sidewalks adjacent to City owned parking lots in the district. Icemelt will be applied by Contractor and provided by the City's Parks and Recreation Department. 5. Safety Services Act as an extra set of eyes and ears on district streets to provide a safety presence in downtown. Relay crime information to the Yakima Police Department. Additional Scope of Work Requirements: 1. All work will be performed in the Downtown Yakima Business Improvement District (see map, Attachment C) 2. The cleaning work will be performed on the sidewalks, from the building line to approximately one foot from the street curb (which includes gutters). No cleaning of private property or areas outside of district boundaries will be done under this Agreement. 3. All staff uniforms and supplies must be provided by the Contractor and be approved by the City. 4. Equipment must be provided by the Contractor; Contractor shall be responsible for necessary maintenance and repairs of all equipment. 5. Uniforms must include Downtown Association of Yakima logo and/or name on them. Uniforms must be appropriate for spring/fall, summer and E9 inclement weather and must be cleaned and maintained on a regular basis. 6. Regular meetings between the Downtown Association and the City departments will be held on the first week of each month at a time agreed upon by both parties. 7. All Contractor personnel shall maintain a neat and clean appearance and present a polite demeanor to the public. 8. Keep regular inventory of sidewalk furniture (planters, trees, benches etc) and help with installation when items need be replaced or moved. Purchasing Requirements Per RCW 35.87A.200 any city or town or county authorized by this chapter to establish a parking improvement area shall call for competitive bids by appropriate public notice and award contracts, whenever the estimated cost of such work or improvement, including cost of materials, supplies and equipment, exceeds the sum of two thousand five hundred dollars. Compliance with these requirements shall be accomplished by contacting the City of Yakima's Purchasing Division for assistance when purchasing supplies and equipment associated with this contract. Equipment Specifications (DAY to provide) 1. Truck and trailer to perform trash services in downtown district 2. Pressure Washer 3. Billy Goat Vacuum (or equivalent) 4. All necessary cleaning tools, equipment and cleaning and maintenance supplies (i.e. graffiti removal, plastic gloves, fuel, pan and broom, trash can liners etc.)